REMEDIAL LAW REVIEW 1
Legal basis for SC amending the Rules of Procedure?
What do you mean by substantive law? And how
does it differ from Remedial Law?
- Substantive law
o SL creates, defines, and regulates
our rights and duties concerning life,
liberty or property, which when
violated gives rise to a cause of
action.
o SL tells us our rights, duties and
obligations concerning life, liberty
or property.
o Examples:
 Family Code
 Civil Code
 Obligations and Contracts
 RPC
o If our rights created by substantive
laws are being violated, the remedial
law prescribes the methods of
enforcing those rights and
obligations created by SL
- Remedial law
o Provides for the procedure as to how
cases or civil actions are filed, tried
and decided upon by the courts.
o Also called Procedural Law
Sources of Remedial Law:
1. Main source – Rules of Court
2. BP 129
3. SC Issuances and Circulars
- Writ of Amparo
- Procedures for Small Claims Cases
4. Decisions Issued by the SC
Exclusive Power of the SC to Promulgate Rules
Under the Constitution, the SC has the sole power to
promulgate rules concerning pleading, practice and
procedure, including enforcement of the Constitutional
rights of Filipinos.
- Who amended the Rules of Procedure?
Supreme Court
- Who issued Rules of Procedure for Small
Claims Cases? Summary Procedure? Rules
of Procedure for Environmental Case?
Procedures for Writ of Amparo, Writ of
Habeas Data? SC.
- Sec 5 Par 5 Aritcle VIII 1987 COnsti
o SC has the power to promulgate
rules concerning pleading, practice
and procedure
Case: Estepona vs Lubrigo (G.R. No. 226679, August
15, 2017)
- Declared unconstitutional Sec 24 or RA
9165 prohibiting plea-bargaining
- SC: Plea bargaining concerns procedure, SC
has the exclusive power to promulgate rules.
- Comment: The power is shared with
Congress. Congress has power to enact laws
pertaining to procedure
o Example: Speedy Trial Act
 It concerns procedure.
o But, SC: That power exclusively
belongs to SC as provided by the SC
Limitations of SC’s Rule-Making Power
- Par 5 Sec 5 Article 8
1. Rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases.
- Basis for RP for Small Claims Cases
2. The rules shall be uniform in all courts of the
same grade.
- MTC and RTC Rules are the same
3. Rules shall not diminish, increase or modify
substantive rights.
Remember: SC’s power to promulgate Rules regarding
pleadings, practice and procedure carries with it the
power to amend and suspend the rules in the interest of
justice, or when compelling reasons so warrant.
(Sarmiento vs Zaratan G.R. No. 167471 Feb 5, 2007)
- Case involving 16 new cities
o 4 MRs were entertained by the SC
o A 2nd MR, as a rule, is prohibited.
Only 1 MR. However, SC may
allow a second MR with prior
permission from SC.
o In this case, the SC entertained 2nd,
3rd and 4th MR.
- Cases involving extension of period for a
notice of appeal
o Appeal should be filed 15 days after
promulgation of decision.
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 o There are cases where the SC
extended or allowed a filing of
notice of appeal despite lapse of 15
day period.
o In the case, filing on the 18th day
was still allowed.
However, according to SC rulings, compliance with the
procedural rules is the general rule.
- Abandonment thereof should only be done
in the most exceptional circumstances.
(Pilapil vs Heirs of Briones G.R. No.
150175 Feb 5 2007)
- SC: The phrase in the interest of justice is
not like a magic wand that once invoked will
automatically abandon the rules.
- Compliance with the rules is still the GR.
Classification of Courts in the Philippines
1. Courts of General Jurisdiction
- Courts having power to entertain all kinds of
cases, except those cases specifically
provided by law to be excluded.
o Example: RTC
2. Courts of limited or special Jurisdiction
- Courts which could only try cases expressly
provided by law to be within their
jurisdiction
o Example: MTC
3. Courts of Original Jurisdiction
- Courts having power to hear and try cases
filed for the first time.
- Courts that have the power to try cases
instituted for the first time
4. Courts of Appellate Jurisdiction
- Courts that have the power to review the
decision of a lower court.
- Example: RTC can be considered Court of
Appellate Jd (Can review MTC decisions)
5. Courts of Records
- The decisions of the court should be based
on facts and law
- Judge will discuss in its decision the factual
basis of its decision, as well as the legal
basis.
6. Courts of No Record
- Justice of the Peace (now MTC)
- Proceedings will not be recorded. Decisions
of the court will not be written.
7. Constitutional Courts
- Court created by the Constitution
- Supreme Court
8. Statutory Courts
- All other courts created by law, and not the
Constitution.
- MTC, RTC, CA, CTA
- Sandiganbayan is created by law, but
institution is mandated by the Constitution
- Military Courts Martial?
o Not part of the judiciary
o Part of the executive branch of the
government, attached to the
functions of the President as
commander-in-chief
- NLRC?
o Not part of judiciary
o Term judge is only exclusive to the
members of the judiciary. Labor
Arbiters are not judges
- Office of the Brgy. Captain?
o Not part of judiciary
o Although there are civil and
criminal cases which are required to
undergo Katarungang Pambarangay,
Office of Brgy is not a court and not
part of the judiciary
JURISDICTION
- Power of the court to try or hear cases, and
render decision
Classifications:
1. General Jd
- Refers to the power of the court to try all
cases, except those expressly excluded by
law
2. Original Jd
- Power of the court to try a case initiated or
filed for the first time.
Classifications of Original jd:
a. Exclusive jd
- Refers to the power of the court to hear
exclusively certain cases.
- Case shall be filed solely to that court.
Otherwise, will be dismissed.
o Example: collection of sum of
money with amount of 400K
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 o Ejectment cases, MTC has exclusive
jd.
b. Concurrent Jd
- Different courts have jurisdiction to try
certain cases.
o Example: Petition for Mandamus.
 Case may be filed either
with SC or CA.
o RTC, CA, and SC have concurrent
Jd on petition for mandamus,
prohibition, certiorari only when
case is from MTC
 If there is a petition for
certiorari filed against MTC
judge. straight to SC?
 TN: Principle of
Judicial Hierarchy
(if a remedy is
available in the
lower court, the
higher court will
not entertain such
petition)
 Petition will be
dismissed for
failure to observe
Principle of Judicial
Hierarchy.
 SC will only entertain only
when there are special and
important reasons expressly
set out in the petition.
 Example: a petition
questioning the validity of a
statute or law. In such cases,
RTC, CA and SC have
concurrent jd.
 But there are
instances when SC
entertains question
of constitutionality
because of special
and important
reasons, to be
determined by SC
itself.
3. Appellate
- power of higher courts to review decision of
lower courts.
Delegated Jd?
- The authority or power granted to a lower
court to try certain cases.
- For convenience, the power was delegated
to the lower courts.
o Example: Power to hear and try
cadastral cases.
 The power belongs to the
RTC.
 But if the petition for land
registration does not have
an oppositor (regardless of
the value of the property),
or if the value of the
property does not exceed
100k, MTC has jd.
 MTC decision has
to be appealed in
CA because the
MTC is exercising
the power of the
RTC.
Special Jurisdiction
- Refers to the power of MTC to hear and try
petitions for habeas corpus and bail in cases
where all RTC judges in the city or province
are absent.
What are the distinctions between jd and venue?
- Jd – power to hear and try a case
o Venue – place where the case is filed.
- Jd – conferred, fixed by substantive law.
o Venue – fixed by the rules
- Jd – cannot be stipulated or agreed upon by the
parties
o Venue – where the cases are to be filed
may be stipulated
- Jd – questions of jd cannot be waived.
o Venue – questions on venue can be
waived.
What is the diff between error of jd vs error of
judgment?
- Jd – situation wherein the court has no jd to hear
and try a case, and yet renders a decision over
the case
- Error of judgment – presupposes jd of the
court, but the court commits mistakes in the
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 appreciation of the facts, evidence or the
application of the law
- Jd – remedy is petition for certiorari (R65)
- EJ – remedy is appeal to the higher courts.
What are the elements or requisites of jurisdiction?
1. Jurisdiction over the plaintiff or petitioner
- The court may acquire jd upon filing of the
case in court. Could be done by plaintiff
personally or through a duly authorized
representative
o BarQ: Plaintiff executed SPA to
authorize filing before the court.
Allowed. Court can acquire jd of the
plaintiff, either by the plaintiff
himself or his duly authorized
representative.
o If not duly authorized, if the SPA is
defective, court did not acquire jd
over plaintiff
2. Jurisdiction over the person of the defendant
- Upon proper service of summons
o If the summons is not properly
served, court does not acquire jd
- Upon voluntary appearance of the defendant
in court
o Voluntary appearance – not only
limited to physical appearance in
court. Includes filing of pleadings or
motions in court
 Example: Defendant was
not served with summons,
or improperly served, but he
filed a motion for extension
to file answer.
 By filing the
motion, the court
has acquired jd over
the person of the
defendant because
of his voluntary
appearance.
 But if defendant
filed an answer with
affirmative defense,
that the court did
not acquire jd over
his person, such
filing of answer
with affirmative
defense cannot be
considered as
voluntary
appearance because
he merely filed the
pleading to question
the jd of the court
over his person
3. Jurisdiction over the subject matter
- Conferred by law and determined from the
allegations of the complaint.
- Example: defendant filed a motion to
dismiss. 500k before RTC. Defendant filed
a motion to dismiss alleging that the court
has no jd over the subject matter because he
has already paid a portion of his loan.
Should the court dismiss for lack of
jurisdiction?
o No. Jd is conferred by law. To
determine whether there is jd on the
case filed, jurisdiction shall be
determined solely and entirely from
the averments (please check, nilag
si judge lol), and not on the answer
of the defendant, not from the
motion to dismiss, not from the
evidence presented during the trial.
(Basic na.)
- Cannot be waived, and can be raised for the
first time even on appeal
o TN: Tijam vs Sibonghanoy (G.R.
No. L-21450 April 15, 1968)
 There was estoppel by
laches on the party.
 SC did not dismiss the case
because the defendant did
not raise the question before
the trial court, and not on
the CA. Defendant only
questioned the jurisdiction
when he received
unfavorable judgment.
 GR: Question of Jd can be
raised for the first time on
appeal.
 SC: It is so late. The case
has been pending for 18
years. Should we dismiss
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 the case and let the plaintiff
start all over again just
because the defendant did
not raise the issue on time?
 Although jd can be raised
for the first time on appeal,
if the defendant failed to
raise it earlier, may be
dismissed
4. Jurisdiction over the res
- Property or thing
- Once the court acquires jd over the property,
acquiring jd over the person of the defendant
is no longer necessary
o But, even if no longer necessary,
service of summons upon the
defendant is still necessary.
 Service of summons is not
for the purpose of acquiring
jd but for compliance of due
process
5. Jurisdiction over the issues of the case
- Determined by the pleadings filed by the
parties
- Agreed upon by the parties as to what issues
are to be resolved on a given case.
September 4, 2020
Last topic:
Elements or aspects of jd
- In order that the court may validly exercise its
power over a case filed before such court, the
court must have acquired jd over the parties
(plaintiff and defendant)
- Court acquires jd over plaintiff by filing of
complaint and payment of appropriate docket
fees
- Court acquires jd over defendant upon service of
summons or voluntary appearance
Jd over SUBJECT MATTER
- Conferred by law, and from the allegations in
the complaint, and not from the answer or
motion to dismiss
GR: Question on jd cannot be waived, and can be
raised even for the first time on appeal
- If court has no jd over a case, it can motu
proprio dismiss the same
- EXC: Estoppel by laches may prevent defendant
from assailing lack of jd
o In a case, defendant questioned jd of
RTC only when he received an adverse
decision from CA affirming RTC
decision. Did not question jd of RTC
during trial, did not raise question on jd
when his appelant’s brief.
 Only filed MD on the ground of
lack of jd after he received the
decision of CA affirming RTC
decision. Case has been pending
for 15 yrs.
 SC: Defendant is guilty of
estopppel by laches. He was
sleeping on his rights (Tijam vs
Sibonghanoy)
 TN: The doctrine is an
exception rather than the rule.
JD is conferred by law and may be determined
entirely from the allegations in the complaint. Not in
the answer of the defendant, not on the motion to
dismiss, not even from the evidence presented during
trial.
- Exc: Under the CARP Law (Comprehensive
Agrarian Reform Program)
o Where defendant in an ejectment case
raised the defense of tenancy, the court
shall conduct a hearing and determine
the veracity on the defense of tenancy
(w/n tenancy relation really exists). If
court finds that indeed there is tenancy,
the court has to dismiss the case for lack
of jd. (JD here is with DARAB)
 Case: Ofilada vs Andal (G.R.
No. 192270 January 26, 2015)
- Exc: Defendant raised in his answer the defense
of Labor dispute
o Example: in an injunction case, the
defendant raised labor dispute. Court
shall determine the veracity of the
defense. If finds that the case is really
interwoven with the labor dispute,
dismiss. Jd is with NLRC
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Jd over the RES
- Refers to property or thing, status or a particular
fact subject in controversy.
- Power of the court over the object or thing being
litigated
- Court acquires jd over the thing by actually or
constructively placing the property under the
court’s custody or custodia legis
o Such as in the case of attachment or
garnishment.
- Or, by provision of law, which recognizes the
power of the court to deal with the property or
subject matter within its jd. (Such as Land
Registration Proceedings, or cases involving
civil status or real property in the Philippines of
a non-resident defendant)
Sec17 Rule 14
- When the action involves property in the
Philippines or the personal status of the plaintfiff
who is not residing in Ph and cannot be in Ph,
the court can acquire jd
- Court acquires jd over the case as long as it
acquires jd over the res, even if it has not
acquired jd over the defendants.
- Acquisition of jd over the res, acquiring jd over
the defendant is no longer necessary.. It no
longer requires jd over the person of the
defendant. Court can already try the case.
o But summons still has to be served, not
to acquire jd, but in compliance with the
requirement on due process
JD over the ISSUES
- What are the issues to be tried in a certain case
- Issues
o Issues are controverted facts of the case.
If there are allegations in the complaint
that are not admitted by the defendant,
these will become issues.
o ―Issues‖ means a controverted fact of
the case. This is determined by the
pleadings filed by the parties or by
agreement of the parties during pretrial.
o Remember that during pre-trial, the
court has to determine what are the
issues to be resolved or tried in the case.
o Based on the issues, the parties will
have to present evidence.
 For example, in a collection for
sum of money. If the allegation
that the defendant has obtained
a loan is being denied by the
defendant, then it would become
one of the issues (W/N
defendant has obtained a loan
from the plaintiff). During the
trial, it would be among the
issues to be resolved, to which
the parties should present
evidence to support the
respective claims and defenses.
 Plaintiff may take the witness
stand to present promissory note
signed by the defendant.
 Defendant may take the witness
stand and deny the veracity and
authenticity of the promissory
note. He may reason out that the
signature appearing in the
promissory note is merely
fictitious or falsified.
- Remember: Issues not alleged or proved
before TC cannot be decided for the first time
on appeal.
o Only issues tried or taken up before the
TC may be taken up on appeal (China
Trust Commercial Bank vs Turner G.R.
No. 191458, July 3, 2017)
GR: Courts cannot grant a relief not prayed for in
the pleadings or in excess of what is being sought by
the parties
- Due process considerations justify this
requirement.
- Whatever remedies that the plaintiff want from
the court, the same shall be alleged in his
pleading (complaint). Those not asked by the
plaintiff cannot be granted by the court, or those
which exceeds the relief sought by the
pleadings. It violates rights of the adverse party
to due process (China Trust vs Turner G.R. No.
191458, July 03, 2017)
EXC: Even if a relief is not prayed for by the
plaintiff or by a party, the court may grant such
proper relief if the facts alleged in the complaint and
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 the evidence introduced during the trial so warrant
grant of such prayer. And also when there is a prayer
in the complaint for other reliefs equitable and just
in the premises which would justify the grant of
relief not otherwise specifically prayed for.
- In the prayer portion of the complaint, the reliefs
or remedies asked for by plaintiffs are found.
There is a prayer or provision that is general or
catch-all. ―Other reliefs or remedies which are
equitable and just under the premises are also
prayed for‖
o The court may grant a relief not
specifically prayed for if there is a
catch-all prayer in the complaint, and if
the court believes that the relief may be
given. Such grant may be justified by
the general prayer
Question: Jd over the remedies?
- It has something to do with jd over subject
matter
- A party cannot ask from the court a remedy
beyond its jd. The remedies asked for by the
plaintiff, for example, should be within the jd of
the court.
- Related to the cause of action.
JURISDICTION OF THE DIFFERENT COURTS
- Cases cannot proceed if filed with the wrong
court
- Memorize jd of the different courts, particularly
of the Trial Courts. (RTC and MTC)
Hierarchy of the Courts in PH
1. Lowest – first level courts
- Consists of 4 courts:
o MTC (Municipal Trial Court)
 In municipalities, towns
o MCTC (Municipal Circuit Trial Court)
 These are of smaller ―lungsod‖,
alanganin buhatan ug 1 court.
They are combined, circuitized.
 Only 1 court but area of jd is
wide, but population is wide.
 Example: MCTC in Camotes
o MTCC (Municipal Trial Court in Cities)
 City courts found outside
Manila
o METC (Metropolitan Trial Courts)
 Only found in Manila. In NCR
- Can be called just MTC (refers to all lower level
courts)
2. RTC
3. CA
4. SC
JD OF SUPREME COURT
1. Original (case can be filed for the first time in
the court)
a. Exclusive Jd (no other court can try or
hear the case, ow it would be dismissed)
i. Petition for certiorari,
prohibition, mandamus and
respondent could be CA,
COMELEC, COA, and other
constitutional bodies (but does
not include Civil Service
Commission, because decision
of CSC is found in CA for
petitions for cpm)
ii. If respondent is
Sandiganbayan in a petition
for CPM
iii. Respondent is the CTA
iv. Cases involving disciplinary
proceedings against members
of the bar and of the court
b. Concurrent (shared jd; can be filed
with the other courts with concurrent jd)
i. Cases affecting ambassadors,
other ministers and consuls
ii. With CA, involving cases for
petitions of CPM wherein the
respondent is the RTC, CSC,
or other quasi-judicial bodies,
including NLRC
iii. With CA involving petition
for Writ of Kalikasan
iv. With RTC and CA over
petition
1. for habeas corpus
2. quo warranto

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 v. With RTC and CA over
petition for habeas corpus and
quo warranto over lower-level
courts.
vi. With CA and Sandiganbayan
for Writ of Amparo and
Habeas Data
TN: Doctrine of Judicial Hierarchy
- A party should follow the hierarchy
- If the remedy is available in the lower court,
such action must be filed with that lower court.
If it is directly filed with, for example, SC, it
shall be dismissed.
o SC will only entertain if there are
special and important reasons clearly
alleged or set out in the petition.
o Example: You file petition for quo
warranto.
 In the case of Ex-CJ Serreno.
One of the defenses was that it
did not follow the Doctrine.
 But, SC: The SC can
entertain such kind of
petition if there are
important and special
reasons set out in the
petition
2. Appellate JD
a. power to review decisions of CA,
Sandiganbayan and
i. Appeal by Certiorari (Rule
45)
b. Petition for Review on Certiorari
Decision of the RTC based on its
decisions on pure questions of law
 SC may directly review RTC
decision if such decision of
RTC has been rendered in its
original jd. Case is within
exclusive jd of RTC and the
only issue involved is legal, not
factual.
c. Review for decisions of RTC involving
the validity or constitutionality of a
treaty, international agreement,
executive agreement, law, presidential
decree, ordinance, jd of a lower court
JD OF COURT OF APPEALS
1. Original
a. Exclusive
i. Actions for annulment of
judgment of the RTC
b. Concurrent
i. With SC (already mentioned)
for petition for certiorari,
mandamus, prohibition
against RTC, CSC, NLRC,
and quasi-judicial bodies
ii. With SC over petitions for
Writ of Kalikasan
iii. With RTC and SC over
petition for writ of habeas
corpus, quo warranto, and
petition for CPM against first
level courts
iv. With RTC, SC and
Sandiganbayan over petitions
for writ of amparo or habeas
data
2. Appellate
a. By ordinary appeal over decisions
rendered by the RTC in the exercise
of its original jd
 Ordinary appeal is an appeal
made by mere notice on appeal
b. Petition for review on RTC decision
in the exercise of its appellate jd.
c. Review over CSC decision, of the
Ombudsman in admin cases, or by
other quasi-judicial bodies (Rule 43)
d. By ordinary appeal, Cadastral or
Land Registration Cases decided by
the MTC should be appealed in CA.
 Decided by the MTC but
directly appealed with CA.
Usually, MTC to RTC. But in
Land Registration Cases, MTC.
in deciding the case, is trying
the case by virtue of its
delegated jd. Cadastral and
Land Registration cases under
the MTC are those that were
delegated from RTC to MTC. It
is as if that the case was decided
by the RTC)
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 JURISCTION OF THE RTC
1. Original
a. Exclusive
i. Cases involving personal
property, value of which
exceeds 300k, or 400k if in
Metro Manila
 Example: replevin
 If the value of the car to
be recovered is 500k,
RTC. If only 300k,
MTC
ii. Actions demanding a sum of
money exceeding 300k, or
400k if in Metro Manila,
exclusive of interest, damages,
atty’s fees, litigation expenses
and costs.
- Example: Mr. P files a collection case worth
300k, and asks for moral damages of 200k.
Where to file case?
o MTC, because in determining whether
the court has jd, the amount of damages
prayed for incl atty’s fees, litigation
expenses, and interests are excluded in
determining jd.
- Case: When the case was filed, MTC jd was up
to 100k. Over 100k, RTC. The plaintiff/creditor
filed a collection case against defendant,
alleging that defendant obtained a loan in the
amount of 40k. The interest, however, if
included, would be over 100k. The plaintiff filed
the case in the RTC. Defendant filed a motion to
dismiss arguing that RTC has no jd because the
principal amount is only 40k, jd with MTC.
o SC: (Gomez vs Montalban G.R. NO.
174414 : March 14, 2008) It is the RTC
that has jd. Where the interest of the
loan is primary and inseparable
component of the Cause of the action
and not merely incidental thereto, and
already determinable at the time of
filing of the complaint, interest should
be included.
 For example, you borrow
money from your friend.
Because of your friendship,
your friend will not claim for
interests. But if you can’t pay on
due date despite demand and
your friend sues you, you may
be asked by the court to pay
interest. The nature of interest
here is punitive. You are asked
to pay interest as a punishment.
The interest here is not included
in the determination of
jurisdictional amount.
 If interest is contractual,
agreed upon in the
contract, the amount has
to be included in
determining jd.
 If: gipakauwawan ka sa
facebook, and you filed for
moral damages kay nadaot
imong reputation, what is the
basis for the jd?
 According to SC AC
#09-94, if the main
cause of action, where
the claim for damages is
one of the causes of
action, the total amount
of all the damages
claimed shall be the
basis in determining jd.
- An action for damages, wherein the main or one
of the causes of action is the claim for damages,
the total amount of all the damages claimed,
regardless of the kind and nature, would be the
basis of jd (Sante vs Claravall G.R. No. 173915
Feb22,2010)
- Defendant uttered slandering words against
plaintiff, damaging reputation of the plaintiff.
Plaintiff files for damages. Total of the amount
of damages is the basis of determining jd.
- In damages based on torts, amount of damages
prayed for shall also be the basis for the jd.
o Example: Your car was hit by a car.
Damages claimed. You were
inconvenienced because you were not
able to use the car. Damages claimed.
You hired a lawyer to sue. Damages
claimed. The total amount of such
damages claimed is the basis for the
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 determination of jd. (Iñigo vs Purganan
G. R. No. 166876 Mar 24, 2006)
- In an action for sum of money, jd is determined
by the amount of the claim, and not of the
vehicle seized under the writ of replevin.
o For example, your debt is only 200k but
the value of the car under the court’s
custody is 600k, MTC has the jd.
iii. Admiralty and maritime cases
(damages of cargos loaded in a
vessel), exceeding 300k, 400k
Metro Mnl
iv. Probate proceedings, testate
or interstate, where gross
value of the estate (not
assessed) exceeds 300k,400k
v. Actions involving title to or
possession of real property or
any interest therein where
assessed value or interest
therein exceeds 20k, 50k Mnl,
except in forcible entry or
unlawful detainer
Real Action
- Action here involves recovery of title or
possession of a real property, or any interest
therein. Basis is the assessed value of the real
property.
o Assessed value – 25% of the market
value found in the tax dec
o Considering the amount of assessed
value is the basis for the determination
of the court having jd over the case, the
amount of assessed value must be
alleged in the information.
 What will happen if plaintiff
fails to allege assessed value in
the complaint? It is fatal,
because case may be dismissed
for lack of jd since it cannot be
determined which court has jd.
(Supapo vs De Jesus; Crystal vs
Son)
o However: All ejectment (FE or UD)
cases must be filed before the MTC
regardless of assessed value and unpaid
rentals.
 But remember, ejectment cases
must be filed (if the
dispossession of the person
entitled to the possession
happened) within 1 yr from the
dispossession.
 If cannot be filed by the owner
(ejectment case) within 1yr after
the dispossession, can no longer
file for an ejectment case.
 If example, you were
informed that someone
was occupying your
property but you can’t
anytime go to your
property, you have to
file the case within 1 yr.
 After 1yr, can’t file ejectment
case. But, you may still file an
action publiciana.
 Action publiciana:
bahaw nga
ejectment.(but don’t
answer this in the bar.
Mabahaw sad ka ana)
Action publiciana is an
ejectment case that has
prescribed.
 If what is filed in court is an
action publiciana and not an
ejectment case, jd could either
be in MTC or RTC depending
on assessed value of the
property.
Law on jurisdiction is governed by BP 129.
- Before it was amended by RA 7691 (law
expanding jd of the first level courts), all real
actions involving title to or possession of real
property are within the exclusive jd of RTC,
except ejectment cases.
o The only real action within jd of MTC is
only ejectment case.
o With the amendment of BP 129, actions
involving title to or possession of real
property is now shared by the MTC and
RTC, depending on the assessed value.
o Amendment was made in order to
declog the dockets of the RTC. (Concha
10 | c a v e a t e m p t o r
 vs Lumocso G.R. NO. 158121 :
December 12, 2007)
o Considering that real action is now
shared by the 1st level and 2nd level
courts, it is necessary that the assessed
value must be stated in the complaint.
Assessed value stated in the complaint is
the basis for jurisdiction.
- Examples of real action (actions involving title
to, or possession over real property)
o Recovery of ownership and possession
over real property
o Action publiciana
o Quieting of title
o Partition (Barrido vs Nunato)
o Foreclosure of mortgage
 You loan from the bank, aside
from the loan, you are asked to
sign a real estate mortgage.
Failure of payment, mortgage is
foreclosed.
 An action for the judicial
foreclosure of mortgage is a real
action because that involves title
to or possession of real
property. (BPI Family Savings
Bank vs Yujuico)
 However, action to recover
deficiency after the foreclosure
is considered a personal action.
If proceeds of the sale of the
land is not enough to cover debt,
if another case is filed for the
deficiency, it is considered a
personal action.
o Case seeking to annul a foreclosure of a
real estate mortgage (Paglaum
Management vs Union Bank of Ph G.R.
No. 179018 June 18, 2012)
- Significance of determining w/n real action:
o Jd of the court is based on the assessed
value
- How to determine if an action is a real or
personal action?
o Where the ultimate objective of the
plaintiff is to obtain title to or possession
of real property, it is a real action.
o If there is a prayer for the annulment of
some documents, or prayer for the
cancellation of the title of the defendant,
the same is merely incidental to the
main objective, which is to obtain or to
recover title or possession of said real
property. (Padlan vs Dinlasad Mar 13,
2013, sighting the case of Juguete vs
Embodo and case of Kinaguran vs CA)
o Action to recover means that the
plaintiff is not in possession of the real
property. That’s why he wants to
recover.
 If the main objective of the
plaintiff is to recover possession
or ownership over real property,
then that is a real action,
wherein the basis of the court is
the assessed value.
o If the plaintiff, in his plight to recover
ownership, has a prayer to annul, to
declare null and void a certain
document, it is merely incidental.
 Example: You have a land in
Bohol. Your sibling made a
deed of sale, that as if you sold
the land when you actually
didn’t. The buyer now is in
possession of the property.
Obviously, you want to recover
now the property.
 Main purpose is to recover the
ownership and possession of the
property. So, you also have to
allege and pray in your
complaint for the declaration of
the nullity of the falsified deed
of sale.
 Action is considered a real
action, and the prayer for the
declaration of nullity of the
document is merely incidental.
- BarQ: Mr. P filed a case for the recovery of
ownership for a value of 20k. Filed before MTC.
In his complaint, he also claimed 500k as back
rentals.
o Does MTC have jd? Yes. It is a real
action where jd is based on the assessed
value of the property, regardless of the
amount of damages. Basis is the
11 | c a v e a t e m p t o r
 assessed value, not the amount of o Example of actions incapable of
damages. pecuniary estimation
o MTC has exclusive jd over actions the  Rescission or Annulment of
subject matter of which are capable of contract
pecuniary estimation.  And includes Damages
 TN: If the principal
vi. Actions, the subject matter of remedy is for rescission
which, are incapable of or annulment of
pecuniary estimation contract, and moral
damages are also asked,
―Actions incapable of pecuniary estimation‖ the moral damages are
- SC: Adopted the criterion of first ascertaining considered incidental. It
the nature of the principal remedy being sought is not the main remedy
o If principal remedy being sought asked for.
primarily based on recovery of a sum of  The damages asked are
money, capable of pecuniary estimation. the incidental remedies
Jd, whether MTC or RTC, would asked for.
depend on the amount of the claim.  Specific Performance
o If the basic remedy asked is something  Example: you bought a
other than recovery of a sum of money, land on installment,
or money claim is purely incidental to or already paid in full.
merely a consequence of the relief Seller does not execute
sought, the case is considered incapable deed of sale. Suppose
of pecuniary estimation. Within jd of assessed value of the
RTC. land bought is less than
o If action sought is for some relief or 20k. Where should you
remedy which can’t be valued for file the case? TN that
money, it is incapable of pecuniary the case is principally
estimation. for the execution of the
 Action incapable of pecuniary deed of sale, which is
estimation – one where the incapable of pecuniary
primary relief sought is not a estimation. It can’t be
claim for money or damages but classified as a real
some other relief or remedy action, but an action
which cannot be valued in incapable of pecuniary
money. estimation
 To be considered real
For easy determination, Kinds of cases: action, it is not enough
- Capable of Pecuniary estimation – that case is that the case involves
for collection of money, or for damages real property. To be
- Incapable of Pecuniary estimation – principal considered a real action,
relief prayed for is not for collection of money a case must involve
o Remember: Real action is for the recovery of ownership
recovery of ownership, so it is or possession of real
sometimes mistaken as incapable of property
pecuniary estimation. But in such cases,  Injunction (Bukingo vs CA)
these are determined real action, where  Annulment Deed of
basis of jd is assessed value. Declaration of Heirs (Russel vs
Vestil 304 SCRA 729)
12 | c a v e a t e m p t o r
o Suppose, demand is in the alternative.
If you bought a land, paid it already.
Filed for specific performance that seller
will sell. Also filed alternative action to
return payments. In the situation, where
the demand is in the alternative, the
action is considered capable of
pecuniary estimation. The basis of jd is
the amount prayed for. (Cruz vs Tan)
o Breach of contract – may give rise to
an action for a specific performance of
contract.
 If nagpabuhat kag balay but
wala nituman ang contractor
and you already paid, you may
demand for a specific
performance or cancellation of
contract. Or it can also be a case
filing for damages. (Sps Pajares
Vs Remarkable Laundry)
 If you will file a case
for specific
performance or
rescission, incapable of
PE, RTC
 If file for damages, the
amount of damages is
the basis of jd.
vii. According to BP 129, those
cases not within the jd of any
other tribunals or any other
courts
 Refers to those cases not under
the jd of MTC, or CA, or SC.
 RTC is a court of general jd
viii. Actions of special proceedings
within the exclusive jd under
the former court of agrarian
relations
b. Concurrent (discussed)
i. With SC
ii. With SC and CA
c. Special Commercial Courts
i. Cases involving violations of
Intellectual Property Law
ii. PD 902 (Intra-Corporate
Disputes, Petition for
Suspension of Payments,
Rehabilitation Proceedings of
Corporation, etc.)
d. Family Courts (RA 8369)
i. Annulment of marriage
ii. Declaration of Nullity of
Marriage
iii. Legal Separation
iv. Petition for Adoption of
Minors and Revocation
thereof
v. Support and recognition
vi. Guardianship, Custody of
Children
vii. Habeas Court involving
Minors
viii. Criminal Courts were victim
or offender, or both, is a
minor.
- Family courts are created all around Ph. Prior to
the creation of the FCs and prior appointment of
judges for FCs, there are RTCs designated as
FCs. For now, there are already regular family
courts created by law by virtue of RA 8369.
o But, even with the creation of the FCs,
those designated RTCs will remain FCs
2. Appellate
a. Decisions of first level courts (except
for those decided by first level courts in
its delegated jd)
JURISCTION OF THE MTC
1. Original
a. Exclusive
i. Cases involving personal
property, the value of which is
300k or less, or 400k Metro
Mnl
 Naa kay auto, gihulman,
pero wala na giuli.
ii. Admiralty or criminal cases,
300k,400k in Metro Manila,
or less
iii. Probate proceeding where the
gross value of the estate is
13 | c a v e a t e m p t o r
 300k or 400k in Metro Mnl, or
less
iv. Action for the recovery or
collection of sum of money,
where amount asked does not
exceed 300k or, 400k Manila,
exclusive of damages, interest,
litigation expenses, and cost.
v. Exclusion and Inclusion of
Voters under the Election
Code
 If in the list, there are
persons no longer living
in the area
 Or if denied registration
vi. Cases falling under Rules of
Summary Procedure
vii. Ejectment Cases (Forcible
entry and unlawful detainer,
regardless of the amount of
unpaid rentals)
 TN: After lapse of 1yr, now
action publiciana, jd depends
now on value
viii. Money claims for small claims
cases (all cases involving purely
money claims, where value does
not exceed 300k, or 400k in
Metro Manila)
b. Special Jurisdiction
i. In the absence of all RTC
judges in the province or city
where the MTC is located,
MTC may entertain petition
for habeas corpus and bail in
criminal cases
Be sure to remember jurisdiction of courts, especially of
RTC and MTC
Cause of Action vs Right of Action
COA – Refers to the wrongful act or omission or delict
(crime committed by the defendant) in violation of the
plaintiff’s right.
ROA – refers to the right of the party to file a case as a
consequence of the violation.
COA – determined by substantive law (w/n you have a
cause of action)
ROA – Determined by procedural law (remedial law)
Actions or cases, CLASSIFICATIONS:
As to subject matter:
- Real action
o Cases which involves title to or
possession of real property
- Personal Action
o All other actions
Based on binding effect:
- Action in rem
o Action not only directed against a
particular person, but against the thing
itself
o Decision of the court is binding against
the whole world
o Mostly special proceedings
o Example: petition for change of name
- Action in personam
o Action directed against a particular
person, and decision is binding only
against the parties impleaded or there
successors in interest
o Example: Collection for a sum of
money. Decision binding only against
the parties therein, against the defendant
- Action quasi in-rem
o Directed against a particular person, but
such a case seeks the sale or disposition
of defendant’s property, or subjects the
same to a lien or encumbrance
o Purpose is to seek the sale or
disposistion of defendant’s property or
subject the property to lien or
encumbrance
o Example: Quieting of title
IMPORTANT DOCTRINES
Doctrine of Hierarchy of Courts
- If the remedy prayed for can be granted by a
lower court, the action shall be filed in such
lower court.
o Example: For cases with concurrent jd
of RTC, CA, and SC. Should be filed
with RTC, ow dismissed
 Example: Petition for quo
warranto. It can be filed either
in RTC, CA or SC.
14 | c a v e a t e m p t o r
  If you file it with CA, there is a
possibility that it will be
dismissed for violation of the
doctrine of hierarchy of courts.
o Exc: When there are important and
special reasons and SC is convinced that
the issues are indeed important and
special, SC may take cognizance of the
case
Doctrine of Exhaustion of Administrative Remedies
- Before a party goes to a court, the parties must
avail first of the remedies provided before
administrative bodies
o Admin. bodies has power
- If all administrative remedies are not availed of,
the case may be dismissed
- Example: Change of name may be availed
before Local Civil Registrar.
o If you directly file a petition for change
of name before the court, it will be
dismissed for violation of the doctrine of
exhaustion of administrative remedies
- This doctrine is related to the Doctrine of
Primary Jd
Doctrine of Primary Jurisdiction
- The court will not resolve a controversy
involving a question within the jd of
administrative bodies, especially when the
question demands the exercise of sound
administrative discretion requiring a special,
knowledge, and services of an administrative
tribunal.
- The court shall dismiss the case based on the
doctrine.
Doctrine of Non-Interference
- Also called: Doctrine of Judicial Stability
- A court of co-equal jd cannot interfere with the
decision or order of another court of equal jd.
o Example: RTC CC cannot annul
decision of RTC Mandaue, RTC LLC,
or other RTCs.
RULE 1
In what bodies ROC would apply?
- In all courts
- Quasi-judicial bodies may also apply ROC
provision suppletorily.
o Provision of ROC have suppletory
application.
o Quasi-judicial bodies have their own
rules and provision. In the absence of a
provision, ROC may govern.
Section 3. Cases governed.
CIVIL ACTION
- A party sues another for the enforcement or
protection of a right, or the prevention or redress
of a wrong.
- May be ordinary or special civil action.
Special Civil Action
- Cases governed by rules on ordinary civil
actions, and at the same time, subject to specific
rules particularly applicable only to such civil
actions
- Example: Rules for Petition on Certiorari,
Prohibition and Mandamus
CRIMINAL ACTION
- Action where the State prosecutes a person for
an act or omission punishable by law
- Although there are rules on CrimPro, there are
certain provisions under the Rule of Civil
Procedure that are applicable in Criminal Cases.
SPECIAL PROCEEDINGS
- A party seeks to establish status, right or a
particular fact
- How does it differ from an ordinary action?
o OA is for the protection of a right
already existing and the same is
violated. To enforce the right, an OCA
has to be filed
o In SP, no right yet. Right still has to be
established.
 Example: Right as an heir, right
to inherit
 Example: Guardianship. You
want the court to establish that
15 | c a v e a t e m p t o r
 the person subject to the petition
is an incompetent.
Sec 4. ROC does not apply to:
- Election cases, naturalization.
- But will apply when practicable and convenient,
in suppletory application.
Sec 5. Commencement of action
A civil action is commenced by the filing of the original
complaint in court.
- If an additional defendant is impleaded in a later
pleading, the action is commenced with regard
to him on the date of the filing of such later
pleading, irrespective of whether the motion for
its admission, if necessary, is denied by the
court.
RULE 2
- About cause of action
Sec. 1
- Every ordinary civil action must be based on a
cause of action, ow it would be dismissed.
Sec 2. Cause of Action
- Refers to the act or omission by which a party
violates the right of another.
Elements of COA: (ROAD)
1. The plaintiff must have a right granted or
created by substantive law
2. Obligation of defendant to respect that right
3. There is an act or omission committed or
incurred by the defendant in violation of said
right
4. There is damage or injury on the part of the
plaintiff because of such act or omission.
Damnum absque injuria
- Damage without injury (but not enough. If you
answer just this, ZERO)
- Refers to the legitimate exercise of a person’s
right even if it causes damage or loss to another
person.
o Such does not automatically result in an
actionable injury.
o Example. Gipakauwan ka. Magfile ka
ug case.
 If you file a case against a
person. The filing will cause
injury. If the case will be
dismissed, the person cannot file
another case against you. In
filing a case against a person
whom you believe has tarnished
your reputation is a legitimate
exercise of your right. Even if it
caused damage to another, it
does not automatically result to
an injury.
- What is actionable injury? The act or omission
that results to injury.
Right of action
- Right of a plaintiff to file a case against a
defendant for the enforcement or protection of
his right, or redress of his grievances.
Under Sec1, civil action filed by the plaintiff must be
based on a cause of action. If not based on a cause of
action, it will be dismissed for failure to state a cause of
action.
Failure to state a cause of action
- There is insufficiency in the allegations of the
complaint
- Example: Collection for the sum of money. In
the complaint, not alleged of the demand to pay.
One of the elements for the collection of a sum
of money is that there must be a demand. No
default if no demand. You cannot compel
defendant to pay a loan unless there is demand
o If demand is made, still not enough.
o Demand must be alleged in the
allegations; ow, case may be dismissed
for failure to state coa
Lack of COA
- If in a complaint, all the elements are alleged. It
was stated that there was a debt, demand made,
alleged in the complaint. All elements are stated.
o Will case be dismissed for failure to
state coa? No. Complaint has
sufficiently stated a cause of action.
16 | c a v e a t e m p t o r
 - If in the trial, defendant denied incurring debt.
Plaintiff failed to present evidence. Plaintiff will
lose.
o Basis of court: Not failure to state coa.
Failure to state coa is based on the
insufficiency of the allegations.
o Ground of the court in dismissing the
case is lack of cause of action.
- Lack of COA is insufficiency of evidence
presented during trial.
Again, TN:
Failure to state coa
- insufficiency in the allegations of the complaint
Lack of coa
- insufficiency of evidence presented during trial.
Sec. 3. One suit of a single cause of action.
A civil action must be based on a cause of action.
- If allegations would not state COA, dismissed.
One cause of action will only warrant a filing of one
complaint.
- Do not be confused with ―cause of action with
remedy‖
o Example: Mr. D will loan 1M to a bank.
Bank would require D to sign a real
estate mortgage. It is possible that he
will also be asked to issue checks. If D
can’t pay, what is the remedy of the
bank?
 Bank has many remedies, but
only one COA, which is the
failure of debtor to pay his loan.
 Bank may:
 file collection of sum of
money, or
 foreclosure of real
estate mortgage
(judicial or
extrajudicial), or
 by filing under BP 22
for issuing a bouncing
check.
 Bank has a single COA. He
must avail only one remedy.
Bank cannot file all 3 cases for
the same coa. The bank can only
file one remedy.
o Splitting a cause of action is not allowed
by the rules. It is a ground for dismissal.
 If, someone borrows 1M, was
not able to pay on demand. Can
you file 1 case for the 1m,
another for the interest, another
for the damages? No. Only 1
case for a single coa
 May file collection of
sum, with payment of
interest or damages
 Example. Ejectment. Failed to
pay, did not leave despite
demand. Can you file ejectment
now asking the defendant to
vacate, and you file another case
for the collection of rentals
including back rentals?
 Not allowed.
 In the filing of the
ejectment case, include
in the prayer for the
payment of back
rentals. If you include
them, it may cause
dismissal of one of the
actions on the ground of
either litis pendentia (if
both actions are still
pending), or res judicata
(if one or some of them
is dismissed with
finality)
- However, remember that one contract or one
transaction will only give rise to a single cause
of action.
o However, if the contract provides for
several stipulations to be performed at
different times, the same would give rise
to as many causes of actions as there are
violations
 Example: Contract of Loan. D
borrows P10M. Contract
provides that loan should be
paid with 10 monthly
installments. If D can’t pay on
first installment, one cause of
17 | c a v e a t e m p t o r
 action. On another installment,
another cause of action. And so
on.
 However: If first installment
became due, unpaid, did not
sue. And on the 2nd, on the 3rd.
On the 4th, still unpaid, now
filed a suit. Can he sue for the
past unpaid installments?
 No. If he did not file for the
previous installments due, the
same should be included in the
present installment. He should
file only one case for all such
unpaid installments. You go
back to the GR that one case for
a single cause of action. Ow,
that would cause dismissal of
the case on the ground of litis
pendentia or res judicata.
September 11, 2020
Last Topic:
Remember: Elements of Cause of Action:
1. There must be a right in favor of the plaintiff
granted by a substantive law
2. Obligation on the part of the defendant to
respect that right
3. Act or omission on the part of the defendant,
which violated the right of the plaintiff or
constituting a breach of the obligation on the
defendant to the plaintiff.
- Example of act or omission?
o Failure on the part of defendant to
pay his loan despite demands
o Failure on the part of the seller to
deliver the item subject of the sale
4. (Some authors included a 4th element) Injury
or damage on the part of plaintiff.
See Case: Chinabank Corp vs CA
What do you mean by damnum absque injuria?
- Refers to the legitimate exercise of a person’s
rights even if it causes damage or loss to
another.
o Does not create a cause of action
(Abonoy vs CA; Diaz vs Davao
Light)
- Does not automatically result to actionable
injury.
SECTION 3
Sec 3. A party may not institute more than 1 suit for
a single cause of action
- Institute, meaning file.
One wrongful act or omission would give rise to one
COA, and one COA would warrant to only one case/suit
against the violator.
- Purpose: avoid multiplicity of suits
Cause of Action
- The delict or wrongful act committed by the
defendant in violation of the rights of the
plaintiff
- SC: A single act or omission can violate various
rights at the same time
o Such as when the act constitutes juridically a
violation of several separate and distinct
legal obligations.
- However, where there is only one delict or
wrong, there is only a single coa regardless of
the number of rights violated belonging to one
person.
o Delict meaning crime.
 Crime refers to an or omission
o When there is a wrongful act or
omission, it will give rise to a single
coa. And a single coa would warrant the
filing of only one case. (Chua vs
MBTC)
In determining whether there is a splitting of COA is
hard to determine. For easier determination, look at
whether there is only one act or omission
- One act or omission, one coa. One coa, only one
case that would be filed
- SC: The true rule which determines whether a
party has only a single and entire cause of action
for all is due him and which must be sued for in
a single action, and has a several demand for
which he may maintain separate suits:
18 | c a v e a t e m p t o r
 o Whether the entire amount arises
from one and the same act or a
contract
 Refers to a contract of loan
o OR when there are several parts
arising from different or distinct acts
or contracts
 Different and distinct acts or
contracts, different COA, for
which separate actions may be
presented or executed. (Marilag
vs Martinez)
- If the parties have executed a contract and that
contract is violated, there is only 1 COA.
o One contract, one COA,
 If the parties executed different
contracts, then there could be
causes of action as many as
there are contracts.
o A contract would give rise to only one
coa, even if it contains several
stipulations
 One contract, one coa
 Because, according to SC: A
contract could only be violated
once. (Quiogo vs Bautista)
Example: D borrowed 500k from P with 2% monthly
interest, payable for 1 yr. Later, D borrowed an
additional 600k, 2% monthly interest also payable for 1
yr. Suppose D failed to pay both loans despite demands,
how many cases that P may file against D?
- There could be 2 separate cases for collection of
sum of money, there being two separate
contracts of loan. One contract, one coa. One
coa, one case.
- However, P has the option or choice to join his 2
causes of action in one complaint (Joinder of
Causes of Action under Sec5Rule 2)
One contract, 1 coa. If a contract provides for obligations
to be performed at different times, each installment not
performed would give rise to a distinct or separate coa.
- GR: A contract, if violated, will give rise to a
single coa.
- EXC: When a contract provides for several
stipulations or obligations to be performed at
different times, each installment not performed
would give rise to a distinct or separate coa
o Example: Loan payable by installments.
o Each obligation not paid or performed
will give rise to a distinct coa.
o For example D obtained a loan from P
in the amt of 10M, payable in 10
monthly installments. If P fails to pay
the first installment, that would give rise
to a coa on the part of P. P may now file
a collection case against D.
 If 2nd installment becomes due
and D still fails to pay despite
demands, another coa will now
arise. P can now file a second
complaint for collection of sum
of money based on such
installment. And so on.
o TN: If the plaintiff fails to file an action
when the first installment was due as
well as when the 2nd installment was
due, and waited for the other
installments to become due, all that is
due would only constitute one cause of
action
 Example, waited for the 10th
installment to become due. If P
will just file a complaint for
sum of money, all 10 unpaid
installments should be included
just in one complaint.
 All the unpaid
installments should be
included in a single
complaint.
 If P will just file a complaint
based on 1 unpaid installment,
the rest shall be considered
barred. He could no longer file a
complaint based on the other
unpaid installments. (BPI
Family Savings vs Coscolluela
G.R. No. 167724 June 27 2006)
- EXC to the EXC: When a contract is entire,
such which contains several obligations to be
performed at different times, such as a contract
of loan containing stipulation that the loan shall
be paid in installments, IF the debtor or obligor
would manifest his refusal to perform the entire
contract, then the entire contract will be now due
and demandable.
19 | c a v e a t e m p t o r
 o Example, muingon siya: ―Di ko
mubayad ana. Di ko mudeliver ana.‖
Then, the entire contract would be
considered violated.
o So, creditor has one coa, wherein he can
also file one case for the complete
breach or violation of the contract
(Blossom and Co vs Manila Gas Corp
G.R. No. L-32958 Nov 8, 1930)
o Example: Contract of loan with an
acceleration clause, having a stipulation
where failure of the debtor to pay two or
more obligations will make the entire
obligation due and demandable.
 The creditor need not wait for
the last installment to be due.
He can now file a complaint (1
complaint) for the entire
contract, even if the contract
contains a stipulation requiring
debtor to perform obligations at
different times.
Again, a single COA would warrant only a filing of 1
complaint.
- Case: X boarded a cargo truck driven by D and
owned by O. Niplite si X. The cargo truck, while
overtaking a tricyle, was also hit by a pickup
driven by A owned by B.
o Because the cargo truck met an accident,
X suffered injuries by reason of such
incident. X filed a complaint for
damages based on breach of contract of
carriage against D and O. And also
another case, based on torts against A
and B.
o Later, A and B entered into a
compromise agreement with X by
paying the later a certain amount.
Because of that, the case was dismissed
as against A and B. D and O filed a
motion to dismiss, alleging that
dismissal of the case against A and B
inured to their (D&O’s) benefit.
According to them, X has no more COA
against them because settlement also
benifited D and O.
o X argues that his complaint was filed
based on two causes of action - based on
breach of contract of carriage as regards
D & O and based on torts as regards A
& B.
o Is the motion to dismiss meritorious?
o Yes. The singleness of a COA lies in the
singleness of the delict or wrong
violating the rights of one person.
o SC applied the rule that if there is only
one act or omission, that would only
give rise to a single coa (Joseph vs
Bautista G.R. No. L-41423 Feb23 1989)
SECTION 4
What will happen if the plaintiff or the offended party
would file two or more cases on the basis of 1 coa?
- Prohibited under Sec 4.
- Splitting a single COA
Splitting a cause of action
- Imong putol-putolon
- The act of filing two or more cases based on a
single coa.
- Example: Contract of loan. D borrowed from P
500k with 2% monthly interest. Failure of D to
pay despite demands, P filed a collection case
against D to collect principal amount of 500k,
and another case for the interest, and another
case for moral damages and attorneys fees.
o P has only one coa because there is only
one contract
o Here, P filed 3 cases for a single coa.
Splitting a cause of action.
o P should have filed just one complaint,
and in the complaint pray to the court
that defendant will be required to pay
the principal amount, the interests,
moral damages, including attys fees
- Example: Naa kay balay gipaabangan. Wala
kabayad sa abang because of the pandemic. You
sent a demand to leave and pay the rentals in
arrears. Did not leave and did not pay, so you
filed an ejectment case – unlawful detainer.
After, you filed another case for the recovery of
the rental in arrears. Nya, mufile kag another
case for damages and attys fees. Splitting
o Considering only 1 COA, he should
have filed for UD, and in the complaint
pray that defendant be ordered to vacate
premises, and that the defendant be
20 | c a v e a t e m p t o r
 required to pay rental in arrears, as well
as attys fees.
A single COA may give rise to two or more remedies.
But the plaintiff should only file 1 action for 1 coa.
- Example: D obtained a loan from C in the amt of
1M. As security, C requires D to execute a real
estate mortgage over D’s property in favor of C.
Likewise, C requires D to issue postdated checks
in favor of C. If D fails to pay his loan, what are
the remedies of C?
o He may file a collection case against D,
or he may file judicial or extrajudicial
foreclosure of mortgage, or may file a
case for violation under BP 22.
 He cannot file all these 3 cases
together. There could only be
one case filed against D.
 C has to choose which remedy
he will avail. Availment of 1
will exclude the others.
- Another example: F obtained a loan from C in
the amt of 1m, secured by a real estate mortgage
payable in 1 yr. Despite demands, F failed to
pay. C filed for judicial foreclosure in court,
court rendered judgment in favor of C. Before
decision was executed, son of F agreed with C
that he will pay for the debt of his father. S paid
600k, and promised to pay the remaining
balance and used a promissory note as regards to
the remaining balance. S failed to pay such
remaining balance. C filed a collection case. S
alleged res judicata because there is a
foreclosure case as against F. Meritorious?
o Yes. In loan contracts secured by a real
estate mortgage, the rule is that the
creditor-mortgagee has a single cause of
action against the debtor -mortgagor,
i.e., to recover the debt, through the
filing of a personal action for collection
of sum of money or the institution of a
real action to foreclose on the mortgage
security. The two remedies are
alternative, not cumulative or
successive, and each remedy is complete
by itself.
o Thus, if the creditor-mortgagee opts to
foreclose the real estate mortgage, he
waives the action for the collection of
the unpaid debt, except only for the
recovery of whatever deficiency may
remain in the outstanding obligation of
the debtor-mortgagor after deducting the
bid price in the public auction sale of the
mortgaged properties. Accordingly, a
deficiency judgment shall only issue
after it is established that the mortgaged
property was sold at public auction for
an amount less than the outstanding
obligation. (Marilag vs Martinez G.R.
No. 201892, July 22, 2015)
Under the rule on prohibition of splitting coa, the rule
applies to counterclaim and crossclaim. (Mariscal vs CA
G.R. No. 123926. July 22, 1999.)
Effect if a party splits a single coa?
- Would warrant dismissal of either case on the
ground of litis pendentia (if both cases are
pending) or res judicata (if the other case is
terminated)
- Succeeding case could also be dismissed on the
ground of rule on the prohibition of forum
shopping (Zamora vs Kingan?)
SECTION 5
Sec 5 Joinder of Causes of Action.
- Splitting a coa is not allowed, to avoid
multiplicity of suits.
- Joinder of causes of action is allowed, to avoid
multiplicity of suits.
Joinder of COA
- COA are joined in a single action.
Under Sec 5, a party may, in one pleading, assert as
many coa as he may have against a party.
- A party may join in one complaint his causes of
action that he may have against an opposing
party
- Joinder of causes of action is either without
joinder of parties, or involving joinder of parties.
JOINDER OF CAUSES OF ACTION WITHOUT
JOINDER OF PARTIES
A party who has several causes of action may file just in
one complaint, may join his causes of action against the
other party. But subject to certain conditions.
21 | c a v e a t e m p t o r
- Example (Joinder of COA without joinder of
parties, meaning only 1 plaintiff and 1
defendant) D borrowed from P 500k, with 2%
monthly interest, payable in 1 yr. Later,
borrowed additional 600k with same interest,
also payable in 1 yr. When both loans became
due, D failed to pay despite demands. May P
join his 2 causes against D in just one complaint
for sum of money?
o Yes. Basis? A party may assert in one
complaint or pleading as many causes of
action as he may have against an
opposing party.
o But TN: Joinder of causes of action is
merely permissive.
 If P chooses to file 2 complaints
against D, that is allowed. It is
proper. Joinder of COA is
permissive. Optional. Purpose is
to avoid multiplicity of suits.
- Suppose P likewise wants to recover possession
of real property (action publiciana) with an
assessed value of 19k. D also failed to pay. The
coa for ejectment, nilapas nag 1yr. Case to be
filed should be action publiciana (bahaw nga
ejectment, niprescribe na. If an action will be
filed, action publiciana).
o Assessed value is 19k. Which court?
MTC.
o Sum of money case, which court? Both
RTC.
o Q1: Is it allowed that the action
publiciana coa be joined in the
complaint for sum of money against D?
Q2: If allowed, where to file, when the
coa for AP is under MTC?
o 1st Q: Yes, he can join the coa of AP.
Legal basis? A party may join, assert in
1 pleading as many causes of action he
may have against the defendant.
o 2nd Q: In what court which contains the
joint coa? Should be filed under RTC.
 Rule: Sec5ParC.
 When the causes of action are
between to the same parties, but
pertains to different venues or
jds, the joinder may be allowed
(complaint which contains the
joined causes of action)
provided one of the causes of
action falls within the
jurisdiction of said court and the
venue also lies therein.
 If naay daghan nga causes of
action, nya naay sa MTC, naay
sa RTC, the case has to be filed
in the RTC, provided one coa,
the venue and jd falls or is under
the said court.
- Suppose one of the cause of P is not AP, and
still within period to file UD. So the other COA
is ejectment. May P join such coa of ejecment
with the complaint for sum of money?
o No.
o The joinder shall not include special
civil actions, or actions governed by
special rules. (Sec5ParB)
- Suppose P’s causes of action are all for money
claims. How should jd be determined?
o Under Sec5 Par d, where the claims in
all the causes of action are principally
for the recovery of money, the aggregate
amount claimed shall be the test of JD
(Totality Rule)
o Totality rule
 The total amount for all causes
of action which are all money
claims shall determine jd
Again, in joinder of causes of action without joinder of
parties, only 1 plaintiff and 1 defendant.
- If there are 2 plaintiffs or 2 defendants, naa nay
joinder of parties.
JOINDER OF CAUSES OF ACTION WITH
JOINDER OF PARTIES
Joinder of Parties
- Example: D obtained a loan from P in the
amount of 500k. On the same occasion, B (D’s
brother) also borred 600k. Later, both B and D
failed to pay. May P join in just 1 complaint his
cause of action against both?
o No.
o Under Sec 5 Par A, when the joinder of
causes of action also involves joinder of
parties, the complaint shall also comply
or follow the rules on joinder of parties.
22 | c a v e a t e m p t o r
Rule on joinder of parties: Sec 6 Rule 3
- All persons in whom or against whom any right
to relief in respect to or arising out of the same
transaction or series of transactions is alleged to
exist, whether jointly, severally, or in the
alternative, may join as plaintiffs or be joined
as defendants in one complaint, where any
question of law or fact common to all such
plaintiffs or to all such defendants may arise in
the action
o Allowed that there is joinder of parties,
either as plaintiffs or as defendants,
provided the cause or causes of action
arise out of the same contract,
transaction or series of transactions,
and there should be common question
of law or common question of facts to
such plaintiffs or defendants joined.
 ―Transactions‖ would mean
contract or incident
 ―Common question of law‖
meaning same law that will
apply; ―Common question of
facts meaning same evidence
will be presented.
- Example: A complaint with joinder of coa, and
joinder of parties.
o Imagine a bus full of passengers. The
bus fell into a ravine because the driver
fell asleep, and all the passengers were
injured. Suppose, there are 40
passengers
o For every passenger, there is a contract
of carriage. One contract gives rise to
one cause of action. Forty were injured,
so 40 contracts. How many complaint
for damages based one breach of
contract of carriage may be filed against
the driver and the operator?
 Forty complaints.
 Suppose, all the passengers
agreed to file a single complaint
against the driver and operator,
allowed?
 Yes.
 40 plaintiffs, 2
defendants.
 Causes of action joined?
40. Parties joined?
Plaintiff 40, defendants
2.
o If there is a joinder of parties, causes of
action should arise in a single
transaction, and must arise from a single
incident.
 Contract? Contract of carriage.
 Common for all? Yes.
 Joinder of parties allowed.
TN: Rules on joinder of COA as mentioned in sec5 rule
2, and connect with joinder of parties in sec6 rule 3.
SECTION 6
Misjoinder of COA
Misjoinder of causes of action is not a ground for
dismissal of an action. A misjoined cause of action may,
on motion of a party or on the initiative of the court, be
severed and proceeded with separately.
A misjoined coa may be separated by the court.
- It can be done by amending the complaint
Misjoinder of COA (Sec6R2) and misjoinder of parties
(Sec11R3) is not a ground for dismissal of a case.
- EXC: if misjoinder would result in lack of jd
o Example: Collection of sum of money.
Two 300k causes of action, joined. If
joined 600k, may be filed in RTC. When
you misjoined, only 300k, lack of jd. It
will now be dismissed.
RULE 3
PARTIES TO CIVIL ACTIONS
Who may be parties to a civil action?
- Sec 1: Only natural or juridical persons, or
entities authorized by law may be parties in a
civil action. .
o Juridical person refers to corporations
duly registered.
o ―Entities authorized by law to be a party
of civil action?‖
 If a group of persons acted,
misrepresented themselves as a
corporation when in fact they
are not, they can be sued as a
corporation but cannot sue.
23 | c a v e a t e m p t o r
 - The term "plaintiff" may refer to the claiming
party, the counter-claimant, the cross-claimant,
or the third (fourth, etc.)-party plaintiff.
- The term "defendant" may refer to the original
defending party, the defendant in a counter-
claim, the cross-defendant, or the third (fourth,
etc.) — party defendant.
Can dolphins sue?
- SC: Not natural or juridical persons, or entities
authorized by law
- Cannot be parties to a case. (Resident Mammals
vs Reyes G.R. No. 180771 April 21, 2015)
Sole proprietorship?
- Does not possess juridical personality separate
and distinct from the personality of the owner or
the enterprise
- It cannot sue, cannot be sued. (Ejercito vs
Vargas)
Dead person? Or estate of a dead person?
- Case: Naay nangutang. Ang nangutang patay na.
Gikuha ang anak. S borrowed from P. F died, P
sued S, F’s son. ―F as representative of the estate
of F.‖
- SC: A dead person or his estate cannot be a
party to a court action. A decedent does not have
the capacity to be sued and could not be named a
party-defendant in a court action. (Sps Berut vs
Shapnu; Ventura vs Militante)
Under the Special Proceedings, a claim against the estate
is allowed. The estate may sue and be sued, but should
be through a court-appointed administrator or executor.
- There has to be court-appointed administrator or
executor, as provided under R87 ROC.
- If there are claims, or there are properties nga
irecover gikan sa namatay, ang ikiha kay ang
estate through the executor or administrator.
- Absent administrator or executor, can’t sue
children/heirs directly.
o Di na pwede nga ―S, the son,
representing the estate of F.
Other entities authorized by law to become a party to a
case?
- Registered Labor Union
- Registered political parties
Can a closed bank be sued or sue?
- If naa kay deposit, nanira ang bank, wa ka
nabayran. Can you sue the bank?
o Yes.
o A bank which has been ordered closed
by the Monetary Board retains its
juridical personality which can sue and
be sued.
o But the suit should be through the
bank’s liquidator, the Philippine Deposit
Insurance Corporation (PDIC) (See:
Manalo vs CA G. R. No. 141297 -
October 8, 2001)
SECTION 2
Sec 2 Real party in interest
Question 1 in Bar 2021: Who is a real party in interest?
- He is a party who stands to be benefited or
injured by the judgment in the suit or the party
entitled to the avails of this suit.
o ―stands to be benefited or injured,‖
refers to the plaintiff
Requirements in filing a case based in this section:
1. To institute an action, the plaintiff must be the
real party in interest.
2. The action must be prosecuted in the name of
the real party in interest.
―Interest‖
- Means material interest or interest in issue to be
affected by the decree or judgment in the case as
distinguished from mere curiosity of the
question involved
- One having no material interest to protect,
cannot invoke the jd of the court as plaintiff in
an action (Philippine Numismatic And
Antiquarian Society vs Aquino G.R. No.
206617, January 30, 2017)
The owner of the right violated stands to be the real
party in interest as plaintiff, and the person responsible
for the violation is the real party in interest as defendant
(Lee vs Ronillo G.R. No. L-60937 May 28, 1988)
As a rule, only those who are privies to a contract may
become parties to a case.
24 | c a v e a t e m p t o r
 - EXC: When a contract contains stipulations pour
autrui
o Ordinary, while a party not a privy to a
contract may not bring an action to
enforce it, there are recognized
exceptions such as contracts containing
stipulations pour autrui (a contract or
provision in a contract that confers a
benefit on a third-party beneficiary)
What will happen if the person filing the case or the
defendant in a case is not the real party in interest?
- What if the person who files the case is not the
owner of the right which has been violated? Or
if the defendant is not the one who has
committed the act or omission?
o The defendant may raise in his answer
the affirmative defense that the
complaint states no cause of action.
- Ground to dismiss: Failure to state a cause of
action if a case is filed by a plaintiff who is not a
real party in interest or if the defendant is not a
real party in interest.
o Remedy of defendant? File in his
answer an affirmative defense
o Remedy of plaintiff? Amend complaint
(Travel wide sales vs CA)
There are cases decided by the SC that the person filing
the case is not duly authorized.
- Based on the discussion, the complaint may be
dismissed on the ground of failure to state no
cause of action, or failure to state cause of
action.
- But, in some cases that SC states that when a
complaint is filed by a person for and in behalf
of the plaintiff , who is not authorized to do so,
that if the person filing the case is not duly
authorized (for example, SPA is defective)
- SC: The complaint is not deemed filed, and
unauthorized complaint does not produce any
legal effect. Hence, the Court shall dismiss the
complaint for having no jd over the complaint
and no jd over the plaintiff.
o Remember elements of jd? First, court
must acquire jd over the person of the
plaintiff. How? Upon filing of the
complaint, either through the plaintiff
personally or through an authorized
representative.
- SC: If the supposed rep is not duly authorized,
the court did not acquire jd over the case itself
and did not acquire jd over the plaintiff. (Cosco
Ph Shipping Inc vs Kemper Insurance Co, citing
case of Tamondong vs CA G.R. No. 179488 :
April 23, 2012)
o Example, if requisites for SPA are not
followed. The person supposedly
representing has not been duly
authorized.
Question: What is locus standi?
- Legal standing.
- Has similar concept with real party in interest.
- "Legal standing or locus standi‖ is a party's
personal and substantial interest in a case such
that he has sustained and/or will sustain direct
injury as a result of the governmental act being
challenged.
o Ang kontra ani kay ang government.
o Sagad jud ang mahitabo kanang
muquestion sa constitutionality sa law
- It calls for more than just a generalized
grievance.
- The term 'interest' means a material interest, an
interest in issue affected by the decree, as
distinguished from mere interest in the question
involved, or a mere incidental interest.‖ There
must be a present substantial interest and not a
mere expectancy or a future, contingent,
subordinate, or consequential interest.
- Mostly, applied when a question on the
constitutionality of the law is inquired.
- Term interest means a material interest, an
interest in issue as determined by the decree or
law. (Zabal vs Duterte G.R. No. 238467
February 12, 2019)
o In the case, order of Duterte regarding
closure of Boracay was questioned.
o Respondents, through office of the
SolGen questioned legal standing of the
petitioner.
- In another case, a party challenging the
constitutionality of a law, act, or statute, must
show not only that the law is invalid, has
sustained or is imminent or immediate danger of
sustaining direct injury as a result of its
25 | c a v e a t e m p t o r
 enforcement, and not merely he suffers thereby
in some indefinite way (Ferrer vs Bautista G.R.
No. 210551, June 30, 2015)
Rule on locus standi is a mere procedural technicality to
which the SC has waived or relaxed, thus allowing non-
traditional plaintiffs (such as concerned citizens, tax
payers, etc) to sue in the public interest although they
may not have been personally injured by the operation of
the law or other governmental act.
- Our concept of real party in interest is kadtong
naay right nga naviolate. In locus standi, non-
traditional plaintiffs
- SC has provided the minimum requirement so
that non-traditional plaintiffs may file a case.
o For taxpayers, there must be a claim of
illegal disbursement of public funds or
that the tax measure is unconstitutional;
o For voters, there must be a showing of
obvious interest in the validity of the
election law in question;
o For concerned citizens, there must be a
showing that the issues raised are of
transcendental importance which must
be settled early; and
o For legislators, there must be a claim
that the official action complained of
infringes their prerogatives as
legislators. (Ifurung vs Morales G.R.
No. 232131, April 24, 2018)
- (From vdd, case of Ifurung vs Morales) To have
legal standing, therefore, a suitor must show that
he has sustained or will sustain a "direct injury"
as a result of a government action, or have a
"material interest" in the issue affected by the
challenged official act. However, the Court has
time and again acted liberally on the locus standi
requirements and has accorded certain
individuals, not otherwise directly injured, or
with material interest affected, by a Government
act, standing to sue provided a constitutional
issue of critical significance is at stake.
Difference between Legal Standing vs Real Party in
Interest (See: Kilos Bayan vs Morato G.R. No. 118910
November 16, 1995)
LS – concept in consti law
RPI – concept under the ROC, particularly S2R3
(For other distinctions, see caseof Kilos Bayan vs
Morato)
SECTION 3
Sec 3 Representatives as Parties
Where a case is filed or defended by a representative or
someone acting in a fiduciary capacity, the beneficiary
(the real party in interest) shall be included in the title of
the case and shall be deemed as a real-party in interest.
- If X is the real party in interest, but cannot file
because he is outside the country, or if he is in
Ph but he is so busy, he may authorize his
brother Y to file a case in his behalf. He may file
an SPA authorizing his brother Y
- Title of the case could be: Y for and in behalf of
X. Or X represented by Y.
- Name of the real party in interest shall be
included in the title in the case and shall be
considered as RPI
Possible representatives?
- Aside from an agent, a representative may be a
trustee, guardian, executor, administrator, or a
party
- A representative may be a trustee of an expert
trust, a guardian, an executor or administrator, or
a party authorized by law or these Rules.
An agent acting in his own name and for the benefit of
an undisclosed principal shall be held liable
- Agent may sue or be sued without joining the
principal except when the contract involves
things belonging to the principal.
- He could file personally in the case, and can also
be sued.
What is the remedy if the supposed representative is not
duly authorized?
- Case may be dismissed for failure to state coa
- Or dismissed on the ground of lack of jd over
the plaintiff, and court has not acquired jd over
the case itself (again, case of Cosco)
Another case: Rep is not duly authorized and case is
dismissed. (Heirs of Medina vs Natividad G.R. No.
177505 November 27, 2008)
26 | c a v e a t e m p t o r
SECTION 4
Spouses as Parties
Spouses? Can they sue and be sued?
- Yes.
- H&W shall sue and be sued jointly.
o They shall sue together.
- If a case is to be filed against them, both of them
shall be named as defendants.
o Example: If the wife is a teacher, not
able to pay, even if only the teacher
obtained a loan, the husband shall be
included in the case. Both of them are
co-administrators of their common
properties.
o So, under the rules, they should file
jointly and be sued jointly.
- (EXC) A spouse may file a case by himself
o Example: Agreement of separation of
property between spouses
SECTION 5
Minor or Incompetent persons
A minor or a person alleged to be incompetent, may sue
or be sued with the assistance of his father, mother,
guardian, or if he has none, a guardian ad litem
Minor or incompetent? Can he file a case?
- They can, but they should be assisted by their
father, mother, guardian, or guardian ad litem.
- Guardian is the legal guardian. Dili nang tiya
nga gipuy’an run nimo. The guardian should be
the guardian duly appointed by the court.
o If there is none, there is so called
guardian ad litem
o Guardian ad litem: guardian only for
purposes of the particular case
SECTION 6
Sec 6 Permissive Joinder of Parties
- For there to be a proper joinder, the cause/s of
action must arise out of the same transaction,
same contract, or same incident, or series of
transactions.
- Example: Bus full of passengers.
o Passengers may file just in one
complaint a case for damages based on
breach of contract of carriage against
driver and operator.
o Pwede sad nga maglahi sila. Nga
separate sila.
- Another example: D and E obtained a loan from
the bank
o .Co-maker is kauban nimo sa utang.
Ikaw ray nangutang, pero papirmahon
nimo siya as co-maker. Your liability
would be solidary. Ikaw ray kadawat sa
loan. Ikaw ray beneficial party. If you
can’t pay, the co-maker kay iapil sa
kaso. There is now a joinder of parties.
 Proper? Yes. COA arises out of
the same transaction.
Common question of law
- Same evidence to be presented
SECTION 7
Compulsory joinder of indispensable parties.
Indispensable Party
- There are parties that should be compulsorily
impleaded in a case.
- IP is a real party in interest, without whom, no
final determination can be had of an action
- Considering that there can be no final decision
in the case, he should be joined as indispensable
party.
o Example: Case of partition. H and W
have properties. They have children
ABCDE. Nangamatay sila, nabilin ang
mga anak. Unsa man nang pagkaunsaa
nga si A, the eldest, solely holds the
properties. Di mamahin. BCD agreed
that they will file a case. E di muapil
kay close silang A and sa iya other
siblings.
 Should E join? Yes. Co-owners
in a partition case are
indispensable parties.
 If di jud mupirma si E as
plaintiff, Sec10 provides, that if
he does not want to be included
as plaintiff, considering that
presence is mandatory, he
should be sued as a defendant,
an unwilling co-plaintiff
27 | c a v e a t e m p t o r
SECTION 8
NECESSARY PARTY
Necessary Party
- Is a real party in interest who is not
indispensable but ought to be joined for a
complete determination of the claim subject of
the action (relief) is to be had
o In indispensable, keyword is final
determination. In necessary party,
keyword is complete determination of
the claim
o Example: Joint obligation.
 In a solidary obligation, the
performance of the entire
obligation may be demanded
from one of the solidary
debtors.
 For example A and B
are solidary debtors for
the amount of 1M.
Creditor may file a case
against A only. Nature
of the obligation,
whereby entire
performance can be
demanded upon the
solidary debtor.
 Pwede silang duha,
pwede usa ra nila.
 In joint obligation, magbahin
sila.
 Example: A and B
would enter into a
contract of loan with C,
nya di sila kabayad, the
obligation of A would
only be up to 500k,
while B is also up to
500k. So that, if only A
is sued, then the liability
of A would only be up
to 500k. In such a case,
there is no complete
relief or settlement of
the claim because a
necessary party has not
been impleaded.
SECTION 9
Non-joinder of Necessary parties to be pleaded
Suppose, a necessary party is not joined. In such a case,
the plaintiff shall allege in the pleading why he is not
joined. If the court believes or finds omission to be
unreasonable, court may order amendment of complaint
so that necessary party will be included
- Effect if plaintiff fails to comply with any order
of the court? Under Sec3 Rule17, court may
motu proprio dismiss the case for non-
compliance of court order
- Here, failure of plaintiff to comply with the
order of the court so that there will be complete
relief, the party is deemed to have waived his
right to claim
o Or court may dismiss based on
Sec3Rule17 (Dismissal due to fault of
plaintiff)
Sec 10 Unwilling Co-plaintiff
- If a person is ought to be joined as plaintiff, and
he does not want, he should be joined as
defendant.
SECTION 11
Misjoinder and Non-joinder of Parties
- Same with misjoinder of causes of action
- Misjoinder of parties is not a ground for
dismissal
What should the court do if an indispensable party is not
joined?
- If an indispensable party is not joined, and the
court proceeded in hearing of the case, the
decision of the court would be void because
there is an indispensable party that is not joined.
- The court has to order inclusion of that
indispensable party. How? The complaint has to
be amended, either to join such indispensable
party as a plaintiff or as a defendant.
SECTION 12
CLASS SUIT
Requisites of a Class suit:
1. When the subject matter of the controversy is of
common or general interest to many persons
28 | c a v e a t e m p t o r
 o Only 1 coa, and that coa is common and
is of general interest to many persons
2. So numerous that it is impracticable to join all of
them as parties.
3. A number of them which the court finds to be
sufficiently numerous and representative as to
fully protect the interests of all concerned may
sue or defend for the benefit of all.
Suppose, a passenger vessel full of passengers (1k) met
an accident and capsized. Some of the passengers died,
some survived. Relatives of the deceased and survivors
agreed that they would file a class suit. Will it prosper?
- No. One requirement of a class suit is that the
subject matter of the controversy is common or
is of general interest to many persons.
o If I am a relative of the deceased, my
only concern is my dead relative. Wala
koy labot ngadto sa uban.
o The cause of action of one is not
common to the others.
Example of class suit: Oposa vs Factoran (G.R. No.
101083 July 30, 1993)
- In this case, young children, some of them
assisted by parents, filed a case against former
Sec. of DENR. They sought to cancel existing
timber license agreement to preserve remaining
forests in the country.
- They say that they represent the future
generation and the generation yet to be born.
- CS? Yes. Only 1 common cause of action, only
1 subject matter.
Concept of Intergenerational Responsibility .
- Every generation has the responsibility to
preserve the ecology.
- Another case, a subdivision has a right of way.
Unsa man nang pagkaunsaa nga gisirad’an man
ilang right of way sa new subdivision. Right of
way of the interior was closed by the new
subdivision. They filed a case against the
developer. They filed a class suit against
developer. Classified as class suit?
o See: Juana Complex 1 Homeowners
Associatoin et al vs Fil-Estate Land Inc.
et al (G.R. No. 152272 : March 05,
2012)
TN of the requisites of class suit.
BarQ: Class suit vs Derivative Suit
CS –
DS – suit filed by minority stockholders of a corporation
when an intra-corporate remedy is not available.
In case of doubt as to whether the filing of the case is
proper as CS, the doubt should be resolved in favor of
not filing as a class suit
- Meaning, case should not be allowed as class
suit
- Going back to the capsized ship, it is not proper
for a class suit, but is proper for a joinder for
causes of action and joinder of parties
SECTION 13
Alternative Defendants
- If the plaintiff is not certain as to who among
several defendants are to be sued, he may join
any or all of them as defendants in the
alternative, although a right to relief against one
may be inconsistent with a right of relief against
the other.
- For example, a person is boarding a passenger
bus, nya ang bus nabangga or nabanggaan.
Passenger is injured. Kinsay ikiha? Driver or
tag’iya sa bus, or ang kdtong nakabangga?
o Allowed that his COA as regards the
driver and operator will be breach of
contract of carriage
o Allowed also that he will also join as
defendants the driver and owner of the
vehicle that bumped the bus
SECTION 14
Unknown identity or name of defendant
Suppose that the defendant is unknown.
- If the defendant is unknown, how can you serve
summons?
- Allowed, filed as John Doe. If later discovered,
complaint amended. Summons now will be
served against him.
29 | c a v e a t e m p t o r
SECTION 15
Entry without juridical personality as defendant
- A group of persons who joined into a contract,
and they misrepresented that they are duly
registered. They can be sued as a corporation
even if they are not.
- Implication if they can be sued as corporation?
o Summons need not be served on each
and everyone. Summons may be served
on just one.
o Also, in the complaint, not needed that
all the names will be included in the
group.
o They can be sued using the name of the
corporation that they are using.
o However in their answer, in the 2nd
paragraph, they should indicate the
names and addresses of the persons
composing the group.
SECTION 16
Death of party; duty of Counsel
What will happen to a case if the plaintiff or
defendant will die?
- Sec 16 – If a party to a pending case dies, and
the claim is not extinguished, then the case shall
continue.
What are these cases that will continue even if, for
example, defendant is already dead.
- If naa kay gikontrata sa pagpadrawing sa imong
hitsura. Wala matiwas, wala macomply. You file
a case for specific performance against painter.
If painter dies, would case continue? No. The
case will die together with the defendant.
- What are the cases that may continue/will
survive?
o Actions that survive are those cases that
involve property rights such as actions
to recover real and personal property or
actions to enforce liens therefore
o As well as actions to recover for an
injury to person or property by reasons
of torts or delict.
o See: Board of Liquidators vs Heirs of
Maxima Kalaw (G.R. No. L-18805
August 14, 1967)
- Also, in Sec 20 Rule 3
o Action that will continue despite death,
contractual money claims
o Defendant gi filean kaso, mamatay. The
case will continue despite death.
 Problem is if walay properties
mabilin. If namatay nga lawas
ug kalag ra.
What should be done by the counsel if his client would
die and the case would survive?
- TN: relationship between client and lawyer is
like an agent. When client dies, lawyer has no
more authority to represent or appear in the case.
o The only valid act to do of lawyer:
 To submit written notice to the
court regarding the death of his
client together with the names
of representatives or heirs of
such party, or executor or
administrator
- TN: Failure on the part of the counsel to notify
the court for a ground for disciplinary action.
o He could no longer appear. His only act
to do is to notify the court of the death.
Once a notice of death is filed, the court will issue an
order requiring the heirs or representative to appear and
be substituted for the deceased.
What will happen if a lawyer fails to notify the court?
- Since no notice, the court will continue in the
trial of the case.
- Kung turno na sa defendant, nya mupadayon ra
ang case, the court will declare the right of
defendant to present evidence as waived. Most
likely, decision will be in favor of plaintiff.
o Court may order nga ang plaintiff,
ipabawi ang yuta
o Heirs of defendant will be prejudiced.
o Now, decision of the court will be void.
Not because court has lost jd, but
because of denial to due process of the
heirs.
o Sec 16 has something to do with the
right of the heirs to due process.
- There is a case where counsel failed to notify the
court. But the heirs of the deceased continued to
30 | c a v e a t e m p t o r
 appear in court, even if not ordered by the court.
What will happen?
o SC: The decision is valid. The purpose
of requiring the defendants to appear in
court is a requirement of due process. If
there is no denial, such that children
were able to present evidence, decision
will be valid. (Napere vs Balbarona G.R.
No. 160426 January 31, 2008)
o From vdd:The Court has repeatedly
declared that failure of the counsel to
comply with his duty to inform the court
of the death of his client, such that no
substitution is effected, will not
invalidate the proceedings and the
judgment rendered thereon if the action
survives the death of such party. The
trial court’s jurisdiction over the case
subsists despite the death of the party.
Mere failure to substitute a deceased
party is not sufficient ground to nullify a
trial court’s decision. The party alleging
nullity must prove that there was an
undeniable violation of due process.
o The rule on substitution by heirs is not a
matter of jd but a requirement of due
process; to ensure that the deceased will
continue be represented by his heirs or
duly authorized legal representatives.
Non-compliance with the rules results in
the denial of the right to due process for
the heirs who, though not duly notified
of the proceedings would be
substantially affected by the decision
rendered therein.
o Thus, it is only when there is a denial of
due process, as when the deceased is not
represented by any legal representative
or heir, that the court nullifies the trial
proceedings and the resulting judgment
therein.
o Vda de Salazar vs CA: same decision
This rule regarding the submission of notice of death of
a party to the case applies also to a criminal case.
- So, if mamatay na ang accused, it is the duty of
the counsel to notify the court regarding the
death of the accused.
If, dili muhatag ug representative ang counsel for the
deceased? Igo ra nihatag ug notice of death?
- If no legal representative is named by the
counsel for the deceased party, or if the one so
named shall fail to appear within the specified
period, the court may order the opposing party,
within a specified time to procure the
appointment of an executor or administrator for
the estate of the deceased and the latter shall
immediately appear for and on behalf of the
deceased. The court charges in procuring such
appointment, if defrayed by the opposing party,
may be recovered as costs.
Is there a need to issue summons on the executor or
administrator?
- No need.
- Issuance of the order of the court is sufficient.
SECTION 17
Death or separation of a party who is a public officer
- Another case for substitution.
Sec 17 refers to a case filed by a public officer
- Example, there is a building. To the mind of the
mayor, the same shall be destroyed because it is
already old and has become a nuisance.
o Owner of the bldg filed a case of
prohibition against mayor to prohibit
demolition of the building.
o If mayor dies, what will happen to the
case filed against him? Or what will
happen to the case if it was the mayor
who filed the case?
o If successor will take the same stand as
that of the deceased public officer, the
case will continue and successor shall
substitute for the deceased public
officer.
The same in Section 18.
SECTION 18
Incompetency or incapacity
Strictly speaking, there is no substitution if a party
becomes incapacitated or becomes incompetent.
31 | c a v e a t e m p t o r
If a person becomes incompetent, what will happen
to the case he filed?
- For example, a viral case in facebook, when the
case was called, X stood up, nilakaw atubangan
sa judge. Nipaso. Nagtikubo-tikubo. Unya, mura
siyag naay gibutang sa sawg. When asked what
he was doing, nitubang nagtanom daw siyag
grapes. Walay liso? Seedless HAHAHAHAHA
- The case will continue, but the incompetent
shall be assisted by a guardian or guardian ad
litem.
SECTION 19
Transfer of Interest
Another instance of substitution – when there is transfer
of interest.
- Interest of defendant or plaintiff is sold or
transferred
- Example, P filed a case against D for recovery
of ownership. P said that he is the real owner of
the property occupied by D. Gikapuyan si D,
iyang gibaligya ang yuta. Upon transfer of
rights, buyer can be substituted for D. Pwede
nga mufile siya ug manifestation before the
court informing the court that he is substituting
D for the defendant.
There was case: S was the owner of a certain property. P
filed a case against S, not knowing that S has sold the
property but the title has not been transferred yet. For
example, S is the owner.
- Considering that S is the owner, summons was
issued only as against S and not to B. B, the
buyer, upon knowlesge of the case, was the one
who filed the answer. Pero wala iyang pangan.
Considering that S, despite service of summons
failed to file his answer, P through counsel filed
a motion before the court to declare S in default,
and he was in fact declared in default. What
happened to B? Pwede ba nga ang answer ni B
maoy mahimong answer for the case on behalf
of S who was the one who was sued?
- Yes. (Medrano vs De Vera G.R. No. 165770
August 9, 2010)
SECTION 20
Action and contractual money claims
Case involving contractual money claims.
- This is one kind of action or case that survives
despite death of either party.
- Suppose it was the defendant who died, the case
shall continue until entry of final judgment.
o Mupadayon jud siya.
o What will happen when the defendant is
already dead? Lawyer has to notify the
court and submit to the court the names
of the heirs, or if there is executor or
administrator, then submit the names of
such persons. And, the case shall
continue.
- Suppose there is a favorable judgment on the
part of the plaintiff. The plaintiff may enforce
the judgment against the estate of the deceased.
o Relate to Rule 86 Sec 5 (mentions about
claims against the estate)
TN: Not all cases involving money that will survive.
- See section 20: money claims involving money
―arising from contract‖
o Only those money claims arising from
contract, either express or implied, and
defendant dies before entry of judgment.
o Example of contractual money claims
based on contract?
 Contract of Loan
 Damages on damages based on
breach of contract of carriage.
SECTION 21
Indigent party
If, victim of torts. Walay ikabayad sa docket fees.
Remedy?
- It is a constitutional right. Access to the court
shall not be denied by reason of poverty.
- Under section 21, kung wala jud siyay money or
property, di raba pwede nga sulti ra. There must
be supporting documents attached to the motion.
So asa mudagan? Most likely will go to PAO.
- Remedy? File an ex parte motion to file as an
indigent litigant. It shall be attached to the
complaint.
32 | c a v e a t e m p t o r
 - The motion attached should be an allegation,
documents supporting that, indeed, he is an
indigent.
o What docs? Could be a certification
from DSWD that you are really an
indigent.
o If you have no property? Ask for a
certificate from the assessor where you
live indicating that indeed you do not
own any real property in Cebu City.
- These documents shall be attached in the
motion.
What is the effect if the court, through the executive
judge would approve the motion? Most likely, will be
approved.
- The plaintiff shall be exempt from paying docket
fees and other lawful fees.
- But, TN: not totally exempt. If plaintiff, the
docket fees shall be considered as a lien on any
judgment favorable to the plaintiff.
Suppose defendant would question the order.
- The adverse party may contest, may question
order of the court allowing the plaintiff to
litigate as an indigent.
- There should be hearing.
- If, after hearing, the court finds that indeed, the
plaintiff has sufficient income or property, the
court now will order the plaintiff to pay docket
fees and other lawful fees. If not paid, then the
court may issue a writ of execution to enforce
payment, without prejudice to other sanctions as
the court may impose.
o Without prejudice to disciplinary action.
Juridical person, pwede ba makalitigate as an indigent?
- SC: Sec 21 will only apply to a natural person.
- See: Inquiry submitted by the clerk of court to
the Court Administrator
o Query of Mr. Roger Priorishi regarding
exemption from legal and filing fees of
the Good Shepherd Foundation Inc.
(AM 09-6-9-SC)
In another case, his being indigent is questioned because
he had children who had nice jobs. Pwede?
- Yes. According to SC, still considered indigent.
- The rule does not require that all members of the
litigant’s immediate family must likewise be
indigent. (Tokyo Marine Insurance vs Valdes;
Algura vs Naga City)
SECTION 22
Notice to the Solicitor General
In any action involving the validity of any treaty, law,
ordinance, executive order, presidential decree, rules or
regulations, the court, in its discretion, may require the
appearance of the Solicitor General who may be heard in
person or a representative duly designated by him.
Office of the SolGen is the law firm of the government.
So if there are cases, for example cabinet secretary is
sued or there is a case involving validity of any treaty,
law, ordinance, executive order, presidential decree,
rules or regulations, the office of the SolGen has to be
notified.
- But SolGen may not personally enter his
appearance.
o He may deputize, for example, the
prosecutor’s office, to appear in behalf
of the office of the solgen.
September 18, 2020
Last Topic:
About an indigent party. Under Sec21
- If a party wants to litigate does not have any
money or property, he may file a motion to
litigate as an indigent litigant.
Sec21 has to be related w Sec19R141
- Sec19R141 provides that a litigant may be
considered as an indigent litigant when his
income and that of his immediate fam does not
reach double the amount of the monthly
minimum wage of an employee, and he does not
own any real property with a fair market value
(stated in the current tax dec) of more than 300k.
- If a party who wants to litigate as an indigent, he
has to file a motion, and attach to such motion
an affidavit that he and his family do not have a
gross income more than double the monthly
minimum wage
33 | c a v e a t e m p t o r
 o Aside from that, there should be another
affidavit of a disinterested person
attesting to the truth that indeed you are
an indigent litigant
o Also, attach tax dec of the property.
Having property is allowed, so long as
fmv does not exceed 300k. If no prop, a
cert from city assessor’s office that he
has no prop.
- So if no income:
o Execute affidavit.
 Also if wala jud siyay income,
attach a certificate from DSWD
nga wala jud siyay income and
that he belongs to an indigent
family.
o Affidavit of a disinterested person
o Copy of tax dec
 If no property, certificiate from
city assessor’s
- TN, Requisites: Income and property
What to do?
- File an ex parte motion, together with his
complaint, and attached are his:
o (1) own affidavit, and
o (2)affidavit of disinterested person,
o and other supporting docs (copy of tax
dec, or certificate from city assessor)
According to SC, if a litigant who wants to litigate as an
indigent has submitted all such requisites, it is a matter
of right for such litigant to litigate as an indigent litigant.
(Freyas vs Sorongon; Sps Algura vs Naga City)
However, if there is a lacking requirement or no
attachement?
- For example, submitted a motion as indigent, but
no attachment. Then the court has to set the
application or motion for hearing, to give chance
to movant to prove that he possesses all the
qualifications to litigate as an indigent litigant
- In the same hearing, adverse party may also
present evidence to disprove indigent applicant’s
claim.
Example: Court has granted the motion for the applicant
to litigate as an indigent, but adverse party objected. Can
he contest the veracity of the allegations of the plaintiff?
- Yes. Under Sec 21: Any adverse party may
contest the grant of such authority at any time
before judgment is rendered by the trial court.
- But, there should be a hearing to determine if the
plaintiff who wants to litigate as an indigent is
really an indigent.
o If after hearing, the court finds that
indeed the plaintiff has misrepresented
himself, the court shall order him the
appropriate docket fees and other lawful
fees. If he fails to pay, court may issue
writ of execution, aside from other
disciplinary actions.
This is in relation to Consti provision that free access to
the courts or any quasi-judicial bodies shall not be
denied to any person by reason of poverty.
RULE 4
Venue of Actions
- Where the cases should be filed
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. (1[a], 2[a]a)
- Venue of real actions.
- The same shall be filed with the proper court
where the property is located
―Proper court‖
- MTC or RTC
- Real action is now shared by the first level court
and the RTC, depending on the assessed value.
However, as regards ejectment cases, be it forcible entry
or unlawful deteainer, only MTC that has jd.
- Forcible entry and unlawful detainer shall be
filed in the MTC where the property is located.
Section 2. Venue of personal actions. — All other
actions may be commenced and tried where the plaintiff
34 | c a v e a t e m p t o r
or any of the principal plaintiffs resides, or where the
defendant or any of the principal defendants resides, or
in the case of a non-resident defendant where he may be
found, at the election of the plaintiff. (2[b]a)
Real Actions
- Those which involve title to or possession to real
property, or interest therein
Personal action
- All other actions which does not involve title to
or possession to real property, or interest therein
- Should be filed
Sometimes, in determining w/n real or personal action,
remember that real action and action in rem, and
personal action and action in personam are different
- Personal and Real actions, has something to do
with venue
- In rem and in personam, has something to do
with the binding effect of the decision (as to
whom the decision shall be biding)
A real action can be an action in personam if a case can
only be binding against the parties involved.
Sometimes it is not easy to determine if an action is real
or personal (important for the determination of venue)
- If real action, filed with the court where the
property is located, regardless of residence of
parties
- If personal action, the case has to be filed in the
court where the plaintiff or defendant is a
resident, at the choice of the plaintiff
SC: Nature of the action is determined on the allegations
in the complaint.
- Read the allegations to see knsa jud ang naay jd
- The allegations of the actions, after determining
nature, the nature of the action now determines
the venue
What determines the venue of the case is the primary
objective for the filing of the case.
o What is the main relief.
o Principal relief prayed for
o The rule is the same in determining w/n
capable of pecuniary estimation or not.
- If the plaintiff seeks (primary objective)
recovery of personal property, or replevin or
enforcement of a contract, or recovery of
damages, it is a personal action, to be filed in the
residence of either party
o Examples
 Recovery of Personal property
 Replevin
 Enforcement of a contract
 Example specific
performance
 Loan Contracts
 Recovery of damages
 Example torts
- The complaint is a real action which must
brought in the place where the property is
located if the action seeks:
o Recovery of real property
o Action affects title to real property
o Recovery of possession
o Partition
o Condementation or Foreclosure of
Mortgage
o See: Racpan vs Barroga-Haigh (G.R.
No. 234499, June 06, 2018)
Again, determine primary objective. Determine principal
relief being prayed for.
- If principal relief prayed for is action that affects
title to real property or for the recovery of
possession of a real prop, or partition, or
foreclosure of mortgage, real action.
Where the case is not intended for the recovery of
property and solely for the annulment of contract, the
same is a personal action that may be filed in the court
where the respondent resides.
- In one case, plaintiff X, when he examined his
documents and title of his lands, he came across
a deed of sale over his property executed by his
sister, purportedly signed by him. Upon
discovery of the document, he filed a case for
the declaration of the deed of sale as void (for
declaration of nullity of the deed of sale). But
the title of the property is still in his name, and
he is still in possession of the property. Is the
action for the nullification of the declaration of
the deed of sale?
o Remember: Real action does not only
involve real property. It should involve
recovery of ownership, title to, or
35 | c a v e a t e m p t o r
 possession of real property, or any
interest therein.
o In the case, considering that the action is
not intended for the recovery of the
property but entirely for the annulment
of the contract, it is a personal action
which could be filed in the residence of
either party at the option of the plaintiff.
(Racpan vs Barroga-Haigh)
- In another case, where the ultimate objective is
to obtain title to, or possession of real property.
it is a real action.
o In the first case, he only prays for
annulment of the deed of sale because
he is still in possession. He does not
pray for the recovery of possession and
ownership because he is in possession of
the property.
o In this case, plaintiff wants to recover
ownership and possession of property,
aside from annulment of some
documents.
o X claims that he owns Y’s land, and that
the deed of sale based by Y sa iyang
pagpanag’iya sa yuta, are falsified and
fictititous. X now filed a case for
recovery of ownership and possession of
property. He claims to be the owner.
(Example, ―tag-iya ko ana nga yuta kay
iya na sa akong papa.‖ And the deed of
sale based by Y is falsified. Di na pirma
sa akong papa.‖ Mao na nifile siya ug
case for recovery of ownership and
possession, as well as declaration of
nullity of the deed of sale.
 Is the case filed by X a real
action?
 TN of the test on how to
determine if real or personal
action.
- If the main or primary objective is to recover
ownerhisp and obtain title to real property, it is
real action.
o Padlan vs Dinglasan; Juguete vs
Embudo
o SC: That action is a Real action,
wherein the case should be filed with the
court of the place where the property is
located, and jd is determined by the
assessed value of the property.
Real action, case shall be filed in the place where the
property is located.
- If there are several parcels of land located in
different places (different cities or provinces).
Where should the case be filed?
o Where the subject matter of the case
involves several parcels of land located
in diff cities or provinces, the case shall
be filed in any of the places where one
of the property is located, provided all
such properties are subject of one
contract or transaction.
 Example. Judicial foreclosure of
mortgage covering several
parcels of land, such properties
located in different provinces
and cities. Asa ifile? Such lands
subject to one contract (real
estate mortgage) or one contract
of loan, the case for judicial
foreclosure of mortgage may be
filed in any provinces where
either one of the property is
located.
 Otherwise, if the lots are subject
to separate transactions or
contracts, separate cases shall be
filed where each of the lots is
located. (Mijares vs Pecho)
Personal action depends on the residence of the
parties, at the option of the plaintiff.
Residence?
- Refers to the physical, personal, actual residence
of the plaintiff.
- It does not refer to permanent residence or
domicile.
- It refers to the place where the plaintiff actually
resides
If the plaintiff filed a case through a representative.
- Imagine if plaintiff is working abroad (He is not
then residing here in Ph) So he cannot
personally file the case. He is working abroad
but the defendant is residing in Manila. The
36 | c a v e a t e m p t o r
 authorized representative of the plaintiff is
residing in CC. The rep filed the case in CC. The
defendant filed an answer with affirmative
defense of improper venue.
o Was the case filed in the proper venue?
 No. The plaintiff is not residing
in CC. It is of the
representative’s. The basis of
determining proper venue
should be the place of residence
of the plaintiff.
o Where is the proper venue of the case?
 Case shall be filed in Mnl.
What about if the plaintiff is a corporation, how to
determine residence?
- Residence of a corporation is the place where
principal office or business is located, not the
place where its branch is located.
- Example, banks. Main office of banks is
normally in Manila.
o Case shall be filed in Mnl. (Hyatt vs
Goldstar Elevators G.R. NO. 161026
October 24, 2005)
Remember, even if case is filed in an improper venue,
the court cannot motu proprio dismiss the case.
- The same must be raised as an affirmative
defense.
o Wala namay motion to dismiss, the
same has to be alleged as an affirmative
defense in the answer.
- The court cannot motu proprio dismiss the case
because the venue is waivable.
o If the defendant does not raise venue for
the first time in his answer, the same
would be considered waived.
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. (2[c]a)
Suppose the defendant does not reside in the Ph and is
not also found in Ph.
- He is a foreigner, who is not found in Ph.
- Pwede ba mufile ka ug case against a foreigner?
He used to be in Ph but is no longer here.
o Example, Filipina navictim ug hit and
run. Pwede ba nga kadtong bata nga
iyang anak, illegitimate, naa na sa
America ang foreigner. Can a child file
for compulsory recognition of being
illegitimate against his father who is
residing abroad?
o Yes.
o 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
o Where to file? Place where plaintiff is
residing. (this is what we call action in
rem)
Action that involves property of the defendant located in
the Ph. For example, recovery of ownership of a real
property
- Action quasi in rem
- It is a real action, action for the recovery of
ownership, but it could also be considered an
action quasi in rem
- Quasi in rem: action directed against a particular
party, but seeks disposition or sale of the prop of
the defendant.
o Venue? Place where the property is
located.
If the case is purely action in personam?
- Example, foreigner. Naa diri, nakautang, nya
nilayas. Case?
o Recovery of sum of money.
o Can it be filed against a defendant not in
Ph and cannot be found in Ph and does
not reside in Ph? No.
o There is no way that we can acquire jd
over his person.
o Action that may be filed is action in rem
and 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
37 | c a v e a t e m p t o r
(b) Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue
thereof. (3a, 5a)
- Are there cases when the rules discussed is not
applicable? Yes, when there are provisions of
law that specifically provides for venue.
o If naay provision of law nga ang venue
should only be filed in the venue where
the case is filed.
- When not applicable? Sec4 (a) and (b)
Par a: In those cases where a specific rule or law
provides otherwise
Example of cases which has its own rule that does not
follow general rule on venue?
- For example: Libel (Bar favorite)
o Where do you file libel?
o Under 360 of RPC, action, criminal and
civil, for damages involving libel shall
be filed with the RTC where the libelous
article is printed first published (first
place of publication), or if any of the
parties resides at the time of commission
of offense.
 So, only in the residence of the
plaintiff or in the place of first
publication.
o If the offended party is a public officer
and he is holding office in the City of
Mnl, action for damages shall be filed in
the City of manila RTC, or city or
province where the libelous article is
first printed or first published.
 So, dili na magdepende sa place
of residence sa plaintiff or
defendant
o Suppose holding office outside Mnl?
 File in the RTC of the City or
Province where he is holding
office at the time of the
commission of the offense or
where the libelous article is first
published.
o In case if one of the offended parties is a
private individual, the case shall be filed
with the RTC of the province or city
where he actually resides at the time of
the commission of the offense, or where
the libelous matter is first printed or
published.
o See: Art 360 for venue for action for
damages based on libelous statement.
Par b: Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue
thereof
- Venue can be stipulated upon by the parties, and
the parties of the contract may agree as to where
the case should be filed exclusively.
o However, there are certain conditions.
 agreed in writing before the
filing of the action on the
exclusive venue
GR: Venue of personal actions is governed by Sec2R4.
EXC:
- Parties however, may agree in writing on
exclusive venue. And the agreement or
stipulation on venue may be classified as
restrictive or permissive.
Restrictive vs permissive
- SC: As regards restrictive stipulations on venue,
it must be shown that such stipulation is
exclusive.
o It must be proved. It must be shown in
the agreement that the parties really
have agreed on the exclusivity of venue
o SC: For an agreement to be restrictive,
there should be restrictive qualifying
words in the agreement
 Example: ―exclusively,‖
―solely,‖ ―waiving for this
purpose any other venue,‖ ―shall
only be filed,‖ ―nowhere else
but, except‖
o In one case, the parties have agreed in
their contract that in case there is an
action filed by any party, the action shall
be filed in CC courts.
 X taga Tagbilaran, si Y taga
Dumaguete. In their contract, it
was stated that in case of any
action filed by any part with
regards to the stipulation in their
contract, the case shall only be
filed in CC courts.
38 | c a v e a t e m p t o r
  If X files a case in RTC Duma,
Y raises affirmative defense of
improper venue, arguing that
proper venue should be in RTC
CC as stipulated in the contract.
Is there improper venue?
 The stipulation cannot be
considered restrictive, but
merely permissive. There is no
restrictive words.
 The word ―shall‖ is not
sufficient. There should be a
restrictive word such as only,
 Case: Legaspi vs Republic
o Case: Action in Malinta vs Luyabin. In
this case, the contract of the party states:
―All court litigation procedures shall be
conducted in the appropriate courts of
Velenzuela City, Manila‖
 Merely permissive.
 The agreed venue would be
merely considered as additional
venue, in addition to the
residence of the parties.
o There was a case were the land of the
plaintiff was sold by his brother. It was
mortgaged in the bank, his signature was
forged. There was an SPA signed by
him when in fact, according to the
plaintiff, he did not authorize his
brother. Upon knowledge nga gibaligya,
naprenda, and hapit na maforeclose, he
filed an action for the declaration of the
nullity of the real estate mortgage. He
filed a case in the court of the place
where he is residing. Bank stated that
the case was filed in the improper
venue. The contract states restrictive
words. Is the plaintiff who questioned
the validity of the contract bound by the
stipulation on the exclusivity of venue?
 SC (Briones vs Cast Asia; De
Leon vs Llana)
 There can be no invocation on
the exclusive venue stipulation
where the contract stipulating
exclusive venue is void or
simulated.
 Plaintiff not bound by the
stipulation if the action is filed
purposely on to question the
validity of the contract.
 A complaint directly assailing
the validity of the written
instrument itself should not be
bound by the exclusive venue
stipulation contained therein and
the complaint shall be filed in
accordance with the general
rules on venue.
TN: SC, especially in criminal cases, has the power to
change venue. Example is the case of the Mamasapano
Massacre. So as in Civil cases. Mostly, order of change
of venue is in criminal case.
- Purpose: Avoid miscarriage of justice
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. (n)
Section 2. Meaning of terms. — The term "Municipal
Trial Courts" as used in these Rules shall include
Metropolitan Trial Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts, and Municipal Circuit
Trial Courts. (1a)
RULE 6
Kinds of Pleadings
SECTION 1. Pleadings Defined.
Pleadings are the written statements of the respective
claims and defenses of the parties submitted to the court
for appropriate judgment.
SECTION 2. Pleadings Allowed.
The claims of a party are asserted in a:
1. complaint,
2. counterclaim,
39 | c a v e a t e m p t o r
 3. cross-claim,
4. third (fourth, etc.)-party complaint, or
5. complaint-in-intervention.
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.
- Reply is no longer necessary.
- Reply would only be allowed if the defendant
has attached in his answer an actionable
document. (similar with Rule 6 sec 10)
SECTION 3. Complaint. — The complaint is the
pleading alleging the plaintiff's or claiming
party's cause or causes of action. The names and
residences of the plaintiff and defendant must be stated
in the complaint. (3a)
- Complaint is not limited to that pleading that can
be filed by the plaintiff.
- It includes counterclaim, crossclaim, third party
complaint or complaint in intervention
- Any pleading alleging claimant’s cause of
action.
SECTION 4. Answer. An answer is a pleading in which
a defending party sets forth his or her defenses. (4a)
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. (5a)
Kinds of Defenses:
1. Negative
2. Affirmative
NEGATIVE DEFENSE
- It 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
Kinds of Denial:
1. General denial
o It is considered an admission.
2. Specific denial
When can you say a denial is specific?
- The same must comply with the requirements set
forth under Sec 10 Rule 8:
o Rule 8 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 the complaint, he or
she shall so state, and this shall have the
effect of a denial.
- A denial is considered specific if the defendant
would specifically deny each of the material
allegations in the pleading he is responding to
(example in the complaint) and he must allege,
must set forth in his answer, the facts that he
claims to be true.
o For example, in the complaint for
collection of sum of money. In the first
40 | c a v e a t e m p t o r
 par of a complaint are the personal
circumstances of the parties. 2nd par are
the causes of action.
o Complaint (par2): Sometime on January
20, 2019, defendant obtained a loan
from the plaintiff in the amount of 1M
payable in one year with monthly
interest of 2%.
o If D denies. He claims that he received
500k, but it was a donation and not a
loan. In his answer, he will put ―The
defendant specifically denies the
allegations in Par 2 that he obtained a
loan from the defendant, because the
truth of the matter is the amount he
received is a donation, and sets forth the
facts he claims to be true.
 If he only says ―The defendant
specifically denies the
allegations in Par 2,‖ without
―sets forth the facts claimed to
be true‖, the denial will be
considered general denial which
has the effect of an admission.
o Suppose, a part of the statement is
admitted to be true. What should he do?
 If a part of the paragraph is
admitted, there could be a
partial denial and partial
admission. He may say in
answer:
 ―The allegations in par
2 as regards … are
admitted, but other
allegations are
specifically denied
because the truth of the
matter is…‖
Remember: A denial cannot be considered specific, not
just because the defendant uses ―specifically denied‖
- If defendant states: ―The defendant specifically
denies the allegations in the allegations in
paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10.‖ Is denial
considered specific?
o No.
o A denial cannot be considered specific
just because the defendant uses the term
―specifically denied‖
o For a denial to be considered specific,
the provisions under Sec10Rule8 must
be followed.
- If plaintiff in complaint states: ―By reason of the
stubborn refusal of defendant to pay his
obligation, the plaintiff suffered sleepless nights,
mental anguish‖ Specific or partial denial?
o What should be done?
o In defendant’s answer, he may say lack
of knowledge. ―Defendant has no
knowledge as to the veracity stated
under par 6‖
- If the type of the denial stating no knowledge or
information, he uses in par2 (niingon ang
plaintiff nga the defendant has obtained a loan in
the amount of 1M). Can he say that the
allegations are not true having no knowledge?
o No. if the defendant will state that he
has no knowledge of allegations within
his knowledge which he can deny or
admit, then his allegation of his
knowledge or information would be
considered denial in bad faith.
o What allegations could he deny as
having no knowledge?
 Sleepless nights, mental anguish
 Or, considering plaintiff is
constrained to file action, he is
compelled to seek the services
of a lawyer, to whom is obliged
to pay 50k acceptance fee.
 Pwede nga ingon niya lack of
information or knowledge as to
the veracity of the allegations.
And it has the effect of a
specific denial under sec10.
o So, lack of knowledge or information if
done in good faith has the effect of
denial.
3 Kinds of Specific Denial
1. When defendant specifically denies the
allegations in the complaint, and sets forth the
facts which he claims to be true;
o ―sets forth‖ meaning alleges
o Mura ba’g according to him, mao nay
tinuod. He should allege such facts unsa
may tinuod.
2. Partial denial
41 | c a v e a t e m p t o r
 3. Lack of knowledge or information
o Remember: lack of knowledge must be
made in good faith. Otherwise, if made
in bad faith, it will be considered an
admission.
If the denial would not follow the rules set forth in
S10R8, the denial would be considered a general denial,
which may have the effect of admission.
- If dili nimo maproperly denied, that would be
admission.
Negative Pregnant? tn!
- It is a form of denial which contains admission
of the allegations or claim in the pleading being
responded to.
o It is a denial ―pregnant‖ with admission
- Case: Guevarra vs Noli Eyala?
o In the complaint of the plaintifif,
―Respondent (eyala) and Irene even
flaunted their adulterous relationship as
they attended functions together.‖
o As to the answer, ―Respondent
specifically denies having ever flaunted
an adulterous relationship. The truth of
the matter being, that their relationship
was low profile and known only to the
immediate members of their families.
o Complainant in this case is the wife of
Eyala.
What is the effect if the defendant would never admit,
nor deny?
- If in the answer, ―the allegations in par 2 are
neither admitted nor denied?
o Effect: admission.
o SECTION 11 (Rule 8). 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. (11a)
What are the instances that there can be admission?
1. When there is general denial
2. When there is negative pregnant
3. When there is denial in bad faith
o Kanang muingon rakag lack of
knowledge or information
o The same must be made in good faith,
otherwise will be considered to have
been made in bad faith
4. When an allegation is never admitted nor
denied.
o Presumption: admitted.
Let’s connect the discussion to specific denial
involving an actionable document.
What is an actionable document?
- It is a document upon which a party (either
plaintiff or defendant) based his claims or
defense.
- Example: Promissory note.
o For example, plaintiff would file a
complaint for sum of money, defendant
signed a promissory note. Plaintiff will
attach in his complaint the promissory
note. The promissory note is considered
an actionable document.
- An actionable document should only be that
which is made basis of the cause of action.
 Not all documents are
actionable document.
o For example, in his answer to a
complaint of money, defendant raised
payment, attaching a receipt. What type
of document is the receipt? The receipts
are made basis for his action. Actionable
document.
Section 8 Rule 8:
- 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)
42 | c a v e a t e m p t o r
- ―unless the adverse party, under oath
specifically denies them, and sets forth what
he or she claims to be the facts‖
o Meaning, the answer must be verified.
- Example, what he denies is an actionable
document, his answer which contains the denial
regarding actionable document must be verified,
must be under oath.
o For example, as to the example of
promissory note.
 How do you deny? If he denies
that it is his signature, what will
he do?
 Put: ―The defendant specifically
denies the allegations in par 2
because the truth of the matter is
he has never obtained a loan
from the plaintiff. The
promissory note attached to the
complaint is falsified because
his signature appearing thereon
is merely falsified (or forged)
o If not verified, the genuineness and due
execution of the actionable document
would be admitted.
 Genuineness, meaning his
signature is actually his.
 If it is actually his
signature, but signed
under duress. Is it
falsified? No. it is his
signature. But is __
o If di niya madeny under oath, example
wa niya napaverify. What is the effect?
The genuineness and due execution is
deemed admitted.
 If: the action has prescribed.
Can he still raise the defense?
Or if the loan is already paid.
Can he still raise?
 Yes.
 If an actionable denied
is not properly denied, it
is only the genuineness
and due execution is
deemed admitted.
Others are not deemed
admitted.
Back to Sec 5:
There are 2 kinds of defenses, negative and
affirmative.
AFFIRMATIVE DEFENSES
- Is an allegation of a new matter, while admitting
to the allegations, but nevertheless claiming
party would be barred from claiming from
defendant because of his affirmative defense.
- 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
o fraud,
o statute of limitations,
o release,
o payment,
o illegality,
o statute of frauds,
 there are some documents that
should be in writing, otherwise
it will be unenforceable
o estoppel,
o former recovery,
o discharge in bankruptcy,
o and any other matter by way of
confession and avoidance.
- Affirmative defenses may also include grounds
for the dismissal of a complaint, specifically:
o that the court has no jurisdiction over
the subject matter (lack of jd over the
subject matter);
o that there is another action pending
between the same parties for the same
cause (litis pendentia);
o or that the action is barred by a prior
judgment (res judicata)
Remember, during lower years, there is a motion to
dismiss under Rule 16. Now, rules under motion to
dismiss are now considered affirmative defenses.
- As a rule, they can no longer be raised in a
motion to dismiss such as improper venue, lack
of jd in the person of defendant, etc.
43 | c a v e a t e m p t o r
SECTION 6. Counterclaim. — A counterclaim is any
claim which a defending party may have against an
opposing party.
Counterclaim
- A claim against the defendant by the plaintiff.
2 Kinds of Counterclaims:
- Compulsory (sec7)
- Permissive (not in codal)
Requisites for a compulsory counterclaim?
1. Cognizable by regular courts
- If can be filed in nlrc, not compulsory
counterclaim
2. Logically connected or related to the cause of
action (to the claim of the plaintiff)
- It is one that arises out or is connected with the
transaction or occurrence constituting the subject
matter of the opposing party.
- Same action, same cause of action, same
incident
- Example:
o If nikiha si P against D for damages
because according to P, nagdanghag si
D, gibanggaan iyang auto. In D’s
answer, he denied that he was negligent
and said it was P who was negligent that
caused damage to D’s car in the amt of
20k
 What kind of claim?
 Compulsory CC because the
claim is related or is a claim
which arises out or is connected
to the claim of the plaintiff.
o If D says ―di ko mubayad anang 300k
kay naa kay utang nako, wa ka kabayad
sa utang nga 200k.‖ what kind of cc?
Not compulsory.
 Here, it is based on another
incident or transaction.
 It is a permissive counterclaim
3. Does not require presence of 3rd parties whom
the court cannot acquire jd
4. Nature and amount of the cc should be within
the jd of the court.
- Example: D based on torts filed counterclaim,
stating that it was P which cause damage to the
car, in the amount of 300k. Is it considered
compulsory counterclaim?
o No.
o One of the characteristics of the
counterclaim, the amount and nature
will be under jd of the court
If all the characteristics of a compulsory counterclaim
are present, what will happen if defendant fails to
include it in his answer?
- As regards compulsory counterclaim, it must
necessarily be included in the answer.
o If defendant will file a pleading with a
necessary counterclaim?
- If not included in the answer, the same would be
barred. (Rule 9 Sec 2)
A compulsory counterclaim, however, need not be
answered.
- Worcester vs Lorenzana
Compulsory vs Permissive CC? TN, bar fave
1. C shall be contained in the answer, otherwise
barred. On the other hand, P may be set up as an
independent action and the same is not barred
even if not included in the answer
2. C is not considered an initiatory pleading,
therefore it does not require certification against
forum shopping. P is considered an initiatory
pleading, therefore requires CAFS
3. C does not require payment of docket fees. P
requires the payment of docket fees.
4. C need not be answered. It is deemed
controverted. P must be answered, ow the
plaintiff will be considered in default. If the def
raises a permissive counterclaim in his answer,
the plaintiff must answer P ow will be
considered in default.
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
44 | c a v e a t e m p t o r
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. (7a)
- Example: If muingon ang defendant sa iyang
tubag iyang gideny and gibutangan ―by reason
of the filing of this baseless complaint by the
plaintiff, herein defendant has suffered sleepless
nights, mental anguish, besmirch reputation, to
which plaintiff is required to pay moral
damages, exemplary damages in the amount of
etc etc.
Characteristics of Compulsory CC?
- Necessarily arises out of the same transaction or
the same cause of action of the plaintiff.
SECTION 8. Cross-Claim. — A cross-claim is any
claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either
of the original action or of a counterclaim therein. Such
cross-claim may cover all or part of the original
claim. (8a)
- Example, P files a collection case against D & E,
solidary debtors. Ingon si E, wala man ko
kadawat sa proceeds sa loan. Iyang gibutang sa
iyang answer, with crossclaim ―in the event that
he would be compelled to pay, he prays to the
court that defendant D would be required to
reimburse him whatever amount that he may pay
to the plaintiff‖
Pwede muraise ug cross claim, at the same time
counterclaim against the plaintiff.
Nature of CrClaim is same with counterclaim
CrClaim may be partial or entire as regards original
claim.
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. (9)
- Example, defendant will counterclaim to the
plaintiff, ang plaintiff pwede sad mucounter
counterclaim sa defendant.
- Counterclaim is a claim by the defendant.
SECTION 10. Reply. — All new matters alleged in the
answer are deemed controverted. If 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. However, the plaintiff may
file a reply only if the defending party attaches an
actionable document to his or her answer.
A reply is a pleading, the office or function of which is
to deny, or allege facts in denial or avoidance of new
matters alleged in, or relating to, said actionable
document.
In the event of an actionable document attached to the
reply, the defendant may file a rejoinder if the same is
based solely on an actionable document. (10a)
- Reply and answer in the legal parlance are
different.
Reply vs answer
- A is pleading to be filed by the defendant.
- R is a pleading to be filed by the plaintiff as
regards the defense of the defendant.
Under present amendment, reply is only allowed when
the defendant attached in his answer an actionable
document.
On the other hand, if defendant raises permissive
counterclaim, what will plaintiff file to answer/rebut the
counterclaim?
- Answer to counterclaim
- Not reply. Reply is meant for the defense,
especially sa affirmative defense, or bisan sa
negative defense niya.
If, ang reply sa plaintiff naa puy actionable document.
Nya what we know is if an actionable document will not
be specifically denied under oath, it is deemed admitted.
So unsa may remedy sa defendant? What should the
defendant file?
- Rejoinder. But it is only allowed if a reply is
filed, and an actionable document is attached.
- In the event of an actionable document attached
to the reply, the defendant may file a rejoinder if
45 | c a v e a t e m p t o r
 the same is based solely on an actionable
document
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. (11a)
Let us suppose nga nagbaligya kag auto, S seller. You
sold to B. Diba if mahalin ang auto, inig pirma sa Deed
of Sale, drivean ni B. Pero, di automatic machange ang
rehistro. If nakadam’ag si B, car registered in your name.
- Kinsay ikiha? Registered owner S. P filed a case
on damages based on torts. Remedy of S?
- File a motion for leave of court to file third party
complaint.
- He would ask the court that he would file a third
party complaint against B for reimbursement.
Third party complaint
- Is a complaint against a person not a party to the
action.
- It is a claim whereby the defendant is a strager.
If si B, dugay jud girehistro. Naabtan nalag tuig, naapiki
siya.. Gibaligya ang auto. Ang naa niya, deed of sale ra.
Gibaligya ni A. Nagdrive, nakaligis si A. Kinsay filean?
Si S who is the owner.
- Recourse of S? TPC against B.
- Pero di na si B ang tag’iya. Recourse of B? File
Fourth PC
o B would become 3rd party defendant, A
is 3rd party plaintiff.
o In the same way, S the seller would
become the defendant and at the same
time the 3rd party plaintiff.
Pananglitan si A nabaligya nasad niya?
- There could be a fifth party complaint.
Third party complaint has the same nature with
permissive counterclaim.
- Actually, it is a separate and distinct complaint
to the complaint filed by the plaintiff.
- If not for the rules under Sec11, the subject of
the 3rd party complaint would be subject to a
separate case.
o Purpose nga giallow ang third party
complaint? Avoidance of multiplicity of
suits. Aron mausa ra ug hearing.
TN: Filing of a TPC is not a matter of right.
- That is why, before filing tpc, a leave of court is
necessary.
- There is no such pleading as answer with 3 rd
party complaint.
o The defendant has to file his answer,
and after that, file a motion for leave of
court to file 3rd party complaint.
Cases for reference:
- See: Tayaw vs Mendoza
- See: Saludaga vs FEU
- See: PCI Leasing vs UCPB
- See: Cardiente vs Macat (Filing of 4th party
complaint)
Forth party complaint follows the venue and jd of the
original complaint.
- Even if the subject, jurisdiction, or amount of
claim is within the jd for example of MTC, and
the original case is filed in RTC. So, Fourth
party complaint should be filed in RTC
- Rule on jd and venue should follow to that of the
original complaint.
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. (12)
- Same nature with TPC.
- Naay outsider, brought into the case so that there
would be complete relief.
46 | c a v e a t e m p t o r
There was a case wherein the plaintiff filed a case
against a gasoline dealer.
- Plaintiff is a big supplier of oil. So the plaintiff
filed a case against the dealer (retailer sa
gasoline) kay wala kuno kabayad. In his answer,
the defendant incorporated a counterclaim
against the plaintiff fuel company. He included
the general manager who is not among the
plaintiff in the case. Pwede ba nga iapil niya sa
iyang counterclaim ang manager?
o Yes.
o Case: Sapugay vs CA (In rel to
Sec12R6)
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. (13a)
- Same period of time to file answer. That would
be 30 days.
The 4th or 3rd party defendant may raise a counterclaim
against the original plaintiff.
- Remember nga ang nagkiha sa 3rd party
defendant, dili ang plaintiff. It is the defendant.
Supposed to be, iyang 3rd party complaint adto
ra sa 3rd party plaintiff (defendant).
- But under sec13, he can raise against the
original plaintiff.
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. (1)
In the title of the action, all the parties must be
named in the original pleading.
- All plaintiffs must be included, all defendants
must be mentioned.
- But, in the succeeding pleadings, pwede ra et al.
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.
(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.
(d) Date. — Every pleading shall be dated. (4)
The body of the pleading sets forth the allegations of the
parties’ claims or defenses.
- The allegations in the body are contained in
different paragraphs.
o You will learn more of this in your
Practice Court … or legal forms…
- If the allegations in the complaint, although not
stated, would warrant the grant of relief, the
court may grant the relief. (PAL Assoc vs PAL
47 | c a v e a t e m p t o r
 Civil Employees G.R. No. 201073, February 10,
2016)
TN: It is not the title of the pleading that would
determine the nature of the action.
- Bisag gititlean pana ug ejectment, unlawful
detainer, if the allegations of the body of the
complaint do not indicate that it is an unlawful
detainer (for example), the allegations in the
body would prevail. (Ras vs Sua G.R. No. L-
23302 September 25, 1968)
TN:
GR: The court cannot grant a relief or remedy not
being prayed for.
- Kana bitawng naa sa wherefore
- China Trust vs Turner;
EXC: Even if the relief is not specifically prayed for in
the complaint, if the allegations in the complaint, as
well as the evidence presented, warrant the grant of
such relief, the court may grant such relief or
remedy. (PAL Inc vs PAL Employees Savings and Loan
Corp)
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. (3a).
Under the new amendment, the effect when a counsel
signs the pleading.
- See S3(b)R7
If mamakak siya, he can be subjected to disciplinary
action.
- 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
- In addition, the lawyer’s monetary liability
cannot be passed on to his client. Siya jud ang
mubayad.
TN: Every pleading must include MCLE Compliance,
Roll Number, IBP Num, PTR (receipt number)
- If not included ang roll, di dawaton ang motion
or pleading.
- If no MCLE compliance, you will be subjected
to disciplinary action.
SECTION 4. Verification. — Except when otherwise
specifically required by law or rule, pleadings need not
be under oath or verified.
48 | c a v e a t e m p t o r
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.
(4a)
What is a verification?
- It is an affidavit which indicates that the party or
client has read the allegations in the complaint
or the answer, and to the best of his knowledge,
the allegations are true and correct.
- Remember: Verification as a rule is not required
in a pleading, unless there is a rule or law that
requires that a pleading shall be verified.
o Some lawyers, maniguro. Ipaverify
tanan. What is the effect if di required
pero giverify? Wala.
o If required, pero di iverify? Naay
epekto.
IF: mufile ka ug collection case. Ang promissory note,
for example, is your father’s, but your father is already
dead. How will you know that it is based on personal
knowledge when you have no knowledge as to the
execution of the promissory note? Or for example mufile
ka ug recovery of ownership over a property, unya
imong gibasehan deed of sale ky imong papa nakapalit
ug yuta, but your parents are already dead. You have no
personal knowledge of the transaction, but you have a
deed. Can you say you have personal knowledge?
- No. Your knowledge is based on authentic
document.
- The allegations in the pleading are true and
correct based on his or her personal knowledge,
or based on authentic documents (S4par(a))
Defective or absence of verification does not affect the
jd of the court. It is not a jurisdictional defect.
- That is why, the court may allow correction or
amendment.
- If a pleading is required to be verified, for
example pleadings governed by the Rules on
Summary Procedure, if the pleading is not
verified, the court may not dismiss the case,
however it may just require the party
concerned to submit an amendment pleading
or a verification attached to the pleading.
- Different with forum shopping under Sec5.
Absence or defective forum shopping, it could
not be corrected or amended. The pleading has
to be dismissed. But dismissal could be without
prejudice. (Meaning can be re-filed)
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 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
49 | c a v e a t e m p t o r
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. (5a)
Forum Shopping
- Refers to the act of filing two or more cases
involving the same parties and the same cause of
action, either simultaneously or successively.
- Necessarily, when there is forum shopping, there
is res judicata or litis pendentia, or a splitting a
cause of action.
Unsa may isuwat sa CFS?
- The CFS is an under oath statement executed by
a party, stating under oath that he has not filed
any other action involving same coa and the
same parties in another tribunal, court or agency.
- Naas sec5. A matter of reading.
- If he should learn thereafter that there is another
case involving the same cause of action, he
undertakes to inform the coiurt
Who should sign the CAFS?
- Remember that a CAFS must be signed by the
party himself
- If that party cannot personally sign the CAFS,
then he has to execute an SPA, specifying that
the representative is authorized to sign. The
document containing the authorization to sign
the document of certification against forum
shopping must be attached to the pleading.
If plaintiff is a juridical person, who will sign?
- Should be the person who is duly authorized by
the BOD.
o Proof that the person is duly authorized
by the BOD? Secretary’s Certificate,
which must be attached in the pleading.
- The following corporate officers may sign
CAFS even without BOD authorization:
o BOD Chairperson
o President of the Corp
o General Manager (or acting)
 Not the branch manager.
o Personnel officer
o Employment specialist in Labor Cases
- They are in position to verify correctness and
truthfulness of the allegations in the petition.
What about lawyer filing the case, assisting or
preparing the pleading? Pwede mupirma, provided duly
authorized through SPA.
- Absent SPA, he cannot sign certification against
forum shopping.
See: Cagayan Valley vs CIR
TN BarQ: When would a defective CAFS constitute
dismissal without prejudice? When is a ground for
indirect contempt?
Effects of Defective CAFS?
- Cause for the dismissal of the pleading or of the
case.
- Suppose, the forum shopping submitted is false.
The submission of false certification would
constitute indirect contempt of court, without
prejudice to administrative and criminal actions
- Suppose, the forum shopping is deliberate and
willful, the same would cause the summary
dismissal of the case with prejudice, and the
same would constitute direct contempt, without
prejudice to appropriate administrative actions.
Defective or absence of CAFS, although a ground for
dismissal, the court can’t motu proprio dismiss the
case if the adverse party did not file any motion to
dismiss based on defective or absence of CAFS. The
court cannot motu proprio dismiss the case. And the
objection to the absence or defective CAFS would be
considered waived.
See: Vallacar Transit Inc vs Catubig
- Here, SC distinguished effect between absence
or defective verification, and absence or
defective certification against forum shopping.
Absence or defective Verification (ADV) vs Absence or
Defective Certification Against Forum Shopping
(ADCAFS)
DV – can be cured by amendment
50 | c a v e a t e m p t o r
DCAFS – cannot be cured by amendment. The case has
to be dismissed, although dismissal is without prejudice.
Except when the forum shopping is willful and
deliberate.
SECTION 6. Contents. — Every pleading stating a
party's claims or defenses shall, in addition to those
mandated by Section 2, Rule 7, state the following:
(a) Names of witnesses who will be presented to prove a
party's claim or defense;
(b) Summary of the witnesses' intended testimonies,
provided that the judicial affidavits of said witnesses
shall be attached to the pleading and form an integral
part thereof. Only witnesses whose judicial affidavits
are attached to the pleading shall be presented by the
parties during trial. Except if a party presents meitorious
reasons as basis for the admission of additional
witnesses, no other witness or affidavit shall be heard or
admitted by the court; and
(c) Documentary and object evidence in support of the
allegations contained in the pleading. (n)
- Pleading must contain names of witnesses, the
summary of their testimony, as well as the
judicial affidavits of said witnesses.
- TN: Judicial affidavits of said witnesses shall be
attached to the pleading. Only those witnesses
whose judicial affidavits are attached to the
pleading shall be allowed to testify, unless the
court finds meritorious grounds or reasons, the
court may allow submission additional judicial
affidavits or presentation of judicial affidavits of
additional witnesses.
In the pleading, not only does it allege ultimate facts, it
would also allege evidentiary facts, as well as the law or
jurisprudence on which the claim or defense is based.
- Before, the complaint was only required to state
ultimate facts. Now, it is also required to state
evidentiary facts and law.
Documentary and object evidence also has to be attached
in the pleadings.
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. (1a)
- Manner on how allegations should be made
- Should be in methodical and logical form, in a
plain, concise and direct statement
- 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
Repeat, pleading must contain:
- Ultimate Facts
- Evidentiary facts
- All the evidences
- Judicial affidavits of witnesses
- Documentary and object evidence attached to
the pleading
- Law on which the cause of action or defense is
based must be stated
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. (2)
- Plaintiff may allege in his complaint alternative
causes of action.
- Pasahero nisakay ug bus. Wa pa kasulod, igo
palang nakagunit, nilarga, nadisgrasya. Naguyod
siya. Is it breach of contract? Or torts?
o It may be alleged alternatively.
- On the part of defendant, defenses may also be
in the alternative.
o For example, defendant would
specifically deny the allegations in the
complaint, his defense is negative
defense. Pwede pud siya mualternative
ug prescription.
51 | c a v e a t e m p t o r
  ―Assuming that it is true that the
defendant has obtained a loan,
the same has already
prescribed.‖
SECTION 3. Conditions Precedent. — In any
pleading, a general averment of the performance or
occurrence of all conditions precedent shall be sufficient.
- Pwede maallege generally.
- Example, in the complaint, need of exhaustion
of administrative remedies, need of efforts to
settle pwede ra siya igeneralize. Pwede ra
igeneral averment.
- Example, pwede na siya ingnon that the
complaint has passed through the Katarungang
Pambarangay, and no settlement was reached.
o No need to mention time, date, who was
presiding officer, etc etc.
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. (4)
- In the complaint, the capacity of the plaintiff and
defendant must be alleged.
- In the complaint it is stated ―of legal age‖
o That would indicate legal capacity of
plaintiff to sue
o Unya ibutang pajud niya didto
―defendant is likewise of legal age‖
 Gamay ra ni nga defect but it is
fatal.
o For example, plaintiff did not state that
he is of legal age. Case could be
dismissed for lack of legal capacity to
sue.
o For example, plaintiff is a corporation.
Wala gibutang didto nga it is duly
registered. It could be dismissed for lack
of legal capacity to sue.
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. (5)
- Fraud must be alleged with particularity.
o For example, annulment of contract. The
particular acts constituting fraud
committed by the defendant must be
specifically stated by the complaint.
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. (6a)
- For example, defendant would raise res judicata,
that there is a prior judgment. Is it necessary to
state that the court that rendered the decision has
jurisdiction? Answer is no, under section 6.
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. (7a)
Again what is an actionable document?
- It is a document by which a party based the
defense or cause of action.
How to allege an actionable document?
- For example, promissory note.
o The gist, or summary of the actionable
document shall be alleged in the
pleading, and a copy shall be attached to
the pleading.
- If answer, iyang depensa kay payment, he must
allege the gist. That he has paid on certain date
the amount, and a copy of the document shall be
attached to the answer.
52 | c a v e a t e m p t o r
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)
TN: A person who is not a party to an actionable
document, is not required to deny it under oath.
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. (9)
- Matter of reading
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 the
complaint, he or she shall so state, and this shall have the
effect of a denial. (10a)
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. (11a)
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. (n) ***
Affirmative defenses of defendant
- Found in Sec5b Rule 6
- Also among those grounds are those mentioned
formerly in rule 16
- Since no more grounds for motion to dismiss,
the grounds must now be alleged as affirmative
defenses
o Example: Lack of jd over the person of
the defendant.
 When can you say the court has
not acquired jd over the person
of the defendant? When there is
improper or total absence of
service of summons.
o Example, venue is improperly laid
o Example, plaintiff has no legal capacity
to sue
o Example, condition precedent of the
complaint has not been complied with
 Non-referral of case before
barangay, or failure to exhaust
administrative remedies, or if
the case involves members of
same family, no allegation that
53 | c a v e a t e m p t o r
 efforts towards amicable
settlement have been exerted.
- What affirmative defense is to be alleged in the
answer if plaintiff is a minor not assisted by a
guardian?
o If plaintiff is a minor, complaint may be
dismissed on the ground that plaintiff
has no legal capacity to sue.
- What if plaintiff is not duly authorized? He is of
legal age but he is not duly authorized to file the
case?
o Not lack of legal capacity, but failure to
state a cause of action.
Once an affirmative defense is raised, the court has to
resolve such affirmative defense within 30 calendar
days. If affirmative defenses are those mentioned above.
(jd over person, etc)
- But: if affirmative defense is based on 5(b), the
court may conduct a hearing (but after the
hearing, the affirmative defense has to be
resolved)
If affirmative defense is denied, it cannot be subject of a
motion for recon, petition for certiorari, prohibition or
mandamus. (par. E)
- Because, motion for recon is a prohibited
pleading here.
- Bantayanan ni, especially this is a new
amendment
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. (12a)
- Striking out, meaning deleting allegations.
October 2, 2020
Last Topic:
Natural person for CAFS:
- if the plaintiff is a natural person, Certification
Against Forum shopping must be signed by the
party himself, particularly the plaintiff, or his
duly authorized representative
- If there are several plaintiffs and they share
common cause of action, one of them may sign
the CAFS.
o When all the plaintiffs or petitioners
share a common coa, or defense as
regards defendants if defendant would
raise permissive counterclaim, only one
of them may sign CAFS (Paking vs
Coca-Cola Ph Inc.)
CAFS as to juridical persons,
- Must be those authorized by the BOD
- Remember who are those persons who are
authorized even without BOD authorization
CAFS is important
- A defective CAFS cannot be remedied by
amendment.
- If defective, example not authorized, court may
dismiss. But dismissal is without prejudice to
refilling.
TN: When non-filing of CAFS is a cause of direct
contempt and when does it constitute indirect contempt.
In Rule 8, TN of how to make a specific denial.
S10 Rule 8: Three ways of making Specific Denial
1. By specifically denying each material
allegations of the pleading being responded to,
the truth of which is not sufficient by mere
specific denial
o Defendant shall set forth or allege the
facts which are supposed to be the truth
2. Partial Specific Denial
3. Denial Due to Lack of Knowledge as to the truth
of the allegations in the complaint or certain
averment
o Denial due to lack of knowledge must
be made in good faith, ow the same
would be considered as a general denial,
(di madungog) an admission
54 | c a v e a t e m p t o r
TN of Affirmative Defenses
- No more R16
- Grounds for Motion to Dismiss under R16 have
been transferred to diff provisions in CivPro.
- Some are found in Sec12R8 (affirmative
defenses)
- Affirmative defenses are also mentioned in
R6Sec5(b)
What are the affirmative defenses?
AFFIRMATIVE DEFENSES UNDER S12R8
- Court has no jd over the person of the
defending party
o When can you say court acquired jd?
 Total Absence of Summons or
No Proper Service of Summons
 Remember: Even if no
proper service or total
service of summons, if
defendant suffered in
court, the court can
acquire jd over his
person
 Except when defendant
will raise this as an
affirmative defense in
his answer
- Venue is improperly laid
o Remember rules on improper venue
- Plaintiff has no legal capacity to sue
o It is diff from legal personality to sue
o Lack of legal capacity to sue
 Meaning, plaintiff is a minor or
not a duly registered corporation
- Complaint states no cause of action
o Plaintiff has no legal personality to sue
because he is not the real party in
interest, not duly authorized, or his
authorization defective. So the proper
affirmative defense here is that the
complaint states no cause of action
o This affirmative defense of no cause of
action could also be raised if there is
insufficiency in the allegations of the
complaint.
 Remember elements of a cause
of action? If not all elements of
a COA is alleged, defendant
may raise as an affirmative
defense that the complaint states
no cause of action
 Elements of COA: there
must be a right of
plaintiff, obligation of
defendant to respect that
right, and there must be
an act committed or
omission incurred by
the defendant that
violated the right of the
plaintiff
 Example, no allegation as to act
or omission incurred, proper
affirmative defense that could
be raised is that the complaint
states no cause of action
- Condition precedent for filing the claim has
not been complied with
o Remember, the Local Govt Code,
almost all civil cases are required to
undergo Mandatory Barangay
Conciliation
o Exhaustion of Administrative remedies
 If remedy may be obtained from
admin body, complaint shall be
referred first or to be filed first
in such admin body
 If filed before the court without
exhausting administrative
remedies, the case may be
dismissed for failure to comply
with a condition precedent.
o Earnest efforts towards compromise
agreement if case involves parties
belonging to the same family
 Example: managsuon
 Gawas nga iagi sa barangay,
kinahanglan pud naay earnest
efforts towards compromise
agreement
o If any of the condition precedents
would not be complied with, the case
could be dismissed on the ground that
a condition precedent has not been
complied with.
TN: Failure to raise these as an affirmative defense,
for example non-compliance with the barangay, failure
55 | c a v e a t e m p t o r
to raise this in the answer would be considered a
waiver. The same with lack of jd over the person, same
with improper venue, same with lack of legal capacity to
sue, same w failure to state COA. If not raised in the
answer as an affirmative defense, the same would be
considered waived.
- Failure to raise these as an affirmative defense
at the earliest opportunity.
o Earliest opportunity is the filing of the
answer.
o It cannot be raised during pre-trial,
during trial, during appeal.
If an affirmative defense mentioned is raised, the court
need not conduct a hearing.
- The court is required to resolve the affirmative
defense within 30 days.
AFFIRMATIVE DEFENSES UNDER S5(b)R6
- If the affirmative defense that is raised is one of
those mentioned in Sec5(b) Rule 6, the court has
the discretion to conduct a hearing within 15
days.
o Discretion. Not mandatory.
o After the hearing, if the court would
conduct a hearing or would set this for
hearing, it shall be resolved by the court
within a period of 30 days.
- Under S5(a), whatever ruling the court may have
on the affirmative defense, even if the court
would grant the affirmative defense, filing of a
motion for recon is prohibited.
o The same with the filing of petition for
certiorari, prohibition, mandamus.
- Remedy on the part of the defendant if his
affirmative defense is denied? Go to trial,
present evidence, establish affirmative
defense
o On appeal, may raise the denied
affirmative defense as one of the errors
committed by the court.
o Pwede pa diay siya makapresent ug
evidence? Yes. Ruling of court as to
affirmative defense is merely
interlocutory
 Trial Court that denied his
affirmative defense may change
its ruling later on.
o For example, the defendant raised the
affirmative defense of prescription. The
court denied it. But after trial, the court
has realized that indeed, the action has
prescribed. May the court change its
earlier (interlocutory) order denying the
affirmative defense of prescription of
the defendant?
 Yes. An interlocutory order is
temporary. It can be changed by
the court.
 That is why the defendant may
present evidence during the trial
to establish his affirmative
defense.
 If still not considered by the
court in the decision and the
decision is adverse, he can raise
it on appeal as one of the
assigned errors.
- On the part of the plaintiff, if the affirmative
defense is granted, so the case is dismissed. If
dismissal is without prejudice, remedy is to re-
file the case
o Example, the case is dismissed for lack
of jd over the subject matter. Then, re-
file with the proper court.
o Example, if dismissed due to improper
venue. File it with the proper venue.
o Suppose dismissal is based on the
ground that would prevent plaintiff
from re-filing the same? For example,
the ground is res judicata, prescription,
the action could not be filed anymore.
The order of the court would be a final
order. It can be a subject of appeal.
 Remedy of the plaintiff would
be, if the ground is res judicata,
prescription, the remedy is not
re-filing. It is to file appeal
from the order of dismissal
because the same would be
considered as a final order.
o Dismissal without prejudice may not be
subject to appeal under Rule 41.
 Under Rule 41, one of the
orders that could not be subject
of appeal is a dismissal without
56 | c a v e a t e m p t o r
 prejudice because the remedy is
to re-file the case.
- This is another ground for dismissal which
prevents the re-filing of the action
o For example, the affirmative defense
that the order is unenforceable (not sure.
Can’t be heard). Di ma re-file kay kung
ire-file nimo, mao ra gihapon. Dismiss
lang gihapon.
o Or, the claim has already extinguished
or abandoned. The remedy would be to
file appeal.
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. (1)
Under the present amendment, as a rule, filing of Motion
to Dismiss is no longer allowed.
- But there are still instances when a motion to
dismiss is allowed.
- Example: Defective CAFS
So, unsa naman ang buhaton run sa defendant sa iyang
mga grounds for dismissal?
- Necessarily, they have to be raised in his
answer, otherwise would be considered waived.
GR: Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived
EXC: The following grounds are not waived even if not
raised in the answer as an affirmative defense:
1. Lack of jd over subject matter
2. Litis pendentia
o a form of forum shopping
o plaintiff filed 2 or more cases over the
same coa, such cases being pending in
different courts
o not deemed waived even if not raised in
the answer as an affirmative defense
3. Res judicata
4. Prescription or barred by Statute of limitation
These grounds are grounds where the court may motu
proprio dismiss the case.
- Only grounds for dismissal that the court can
motu proprio dismiss the case if the allegations
in the complaint would indicate any of the
grounds.
o Kung klaro diha sa complaint.
SECTION 2. Compulsory Counterclaim, or Cross-
Claim, Not Set Up Barred.
A compulsory counterclaim, or a cross-claim, not set up
shall be barred. (2)
- Compulsory CC or cross-claim are barred if not
alleged in the answer
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
57 | c a v e a t e m p t o r
 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)
Default
- Means that defendant failed to file answer within
the period given by the court (30 days)
- For there be a proper declaration of default,
there should be showing of proper service of
summons or that the court has already acquired
jd over the person of the defendant.
When can the defendant be declared in default?
Requisites for Valid declaration of Default (Sablas vs
Sablas G.R. NO. 144568 : July 3, 2007)
1. Court acquired jd over the person of
defending party either by:
a. Proper service of summons
b. Voluntary appearance
 When can there be voluntary
appearance?
 For example, after
receiving summons, the
defendant through
counsel filed a motion
for extension to file
answer.
 Filing motion for extension to
file answer, even if there was
improper service of summons,
the court has acquired jd over
the person of the defendant
2. Defending party failed to file answer within
time provided by law or the rules
o That is 30 days.
3. There is filing of motion to declare default by
plaintiff
- TN: The court cannot motu proprio declare the
defendant in default. There has to be a motion to
be filed by the plaintiff.
- Suppose plaintiff fails to file a motion to declare
defendant in default. What should be done?
Should the complaint or the case be allowed to
sleep in court until such time that the plaintiff
would remember to file the appropriate motion
to declare the defendant in default?
o The court should dismiss the case, this
time motu proprio on the ground of
failure to prosecute
o If plaintiff will not file appropriate
motion to declare defendant in default,
the court may dismiss the case motu
proprio for failure to prosecute under
Sec 3 Rule 17
Under recent jurisprudence:
- If period to file answer has already elapsed, but
due to absence of a motion to declare the
defendant in default, the court has not also
issued an order declaring defendant in default, or
even if there is already a motion to declare
defendant in default, there is no order yet issued
by the court. And the defendant has filed his
answer, although late.
o Pwede pa ba na dawaton sa court
iyahang late answer kung wala pay
default order?
o Yes, as enunciated in the case of Sablas
vs Sablas.
With the recent amendment of the civil procedure, it is
uncertain if case of Sablas will still apply.
- But still possible because declaration of default
is not favored by the court. As much as possible,
cases should be decided based on the merits.
Suppose there are several defendants (2 or more), some
of them filed their answer, some did not. What is the
rule?
- Those who did not file their answer shall be
declared in default. Those who filed their
answer, shall not be declared in default.
- However, if defendants share a common
defense
58 | c a v e a t e m p t o r
 o Example: ABC solidary debtors,
obtained loan from P. They must have a
common defense.
 Suppose, A, B and C are sued as
defendants. Only A filed an
answer.
 Under (c) of Sec3, the answer
submitted by the answering
defendant would inure to the
benefit of the defaulting
defendant
 Inure to the benefit,
meaning the court has
to decide the case based
on the answer of the
answering defendants,
as well as the evidence
presented by them.
 On the condition that the
defendants share a common
defense.
o If different defenses, lahi2 ug
pangatarungan, the non-answering
defendants cannot be benefited by the
answer or evidence presented by the
answering defendant.
What is the effect if defendant is declared in default?
- Defendant could no longer participate during the
trial. He could no longer present evidence.
What should the court do after declaring defendant in
default?
- Suppose, only 1 defendant, declared in default.
What happens?
- Court has to options:
o Court may immediately render judgment
based on the allegations of the pleading
and its annexes
 That is if the allegations in the
complaint are sufficient.
 Rationale for the court? The
allegations in the complaint are
uncontroverted. They are
already admitted as true. So, the
court now may render decision.
 Example, sum of money,
promissory note. If evidences
will be asked, ang ipresent ra
ang PN ug demand letter.
 But if the court believes that he
has still questions kay naa pay
angay klaruhon sa allegations sa
complaint.
 Example, complaint on
torts, need ipangutana
pilay nagasto, there is a
need to present
evidence.
 In the new rules,
plaintiff is required to
attach all documents,
including affidavit of
witnesses, there might
be no need for the court
to conduct a hearing
(still discretionary)
o If court decides to conduct a hearing,
presentation of the evidence by the
plaintiff would be done ex parte
(without the participation of the
defendant)
Is it sure that plaintiff will win?
- No.
- Even if the defendant has been declared in
default, the burden proof to establish his claim
with the required amount of evidence is still
with the plaintiff. (Gajudo vs Traders Royal
Bank G.R. No. 151098 March 21, 2006)
o SC: Mere fact that defendant is declared
in default, does not automatically result
to grant of prayer of plaintiff. To win,
the plaintiff must still present the same
amount of evidence that would be
required if the defendant were still
present.
o But dako na siyag chance because the
evidences he will present would be
uncotroverted
TN: What are the remedies of the defendant?
Categorize remedies into 3:
1. When there is no judgment yet
2. When there is already a judgment but not yet
final and executory
3. When judgment is already final and executory
59 | c a v e a t e m p t o r
(1) WHEN THERE IS NO JUDMENT YET:
Grounds under this category:
1. The motion should be based on any of the
grounds. File a motion to set aside the default
order based on the following grounds:
a. Fraud
 Ilad.
 The adverse party used means to
prevent the defendant from
participating in the proceedings.
 The plaintiff used insidious
words or machinations to
prevent defendant from filing
answer.
 Example: Defendant received
summons. Giingnan sa plaintiff
sabot-saboton nalang nila.
Plaintiff told defendant no need
to file answer. After 30 days,
lawyer of plaintiff filed a
motion to declare defendant in
default. There is fraud.
 Fraud must have prevented
defendant to file answer.
b. Accident
 Prevented by a fortuitous event.
 For example, nasakit ug covid.
Mufile na unta ug answer pero
nagluya, di kaginhawa, had to
stay in the hospital. When he
got out, he received default
order. Remedy? Motion to set
aside default order on the
ground of accident.
c. Mistake
 Another example. Defendant
mismo nagtuo nga no need na
siya mufile ug answer kay
nisugot ang plaintiff nga data-
datahan nalang ang utang.
Ground?
 He (defendant) has a mistaken
belief that there is no more need
for him to file an answer.
d. Excusable negligence
 Negligence, meaning sipyat.
Nasipyat. Dili danghag.
 For example, giingnan siya sa
lawyer nga ―ifile dayon nang
answer ha.‖ But because
defendant was so busy, asked
helper. Pero helper was so busy
doing fb, wala nafile. Nalapas,
gifilean dayg default order.
Remedy? Motion to set aside
default order on the ground of
excusable negligence
o Pero usa ra ha. Ayawg hutda ang FAME
2. But the grounds are not sufficient. The
defendant must have a meritorious defense.
 Example. Nailad ka. Unsa may
depensa nimo? Without such,
there should be a meritorious
defense.
 Example? Full payment.
 So, attach in the motion the
receipts. The meritorious
defenses shall be presented
3. Execute an affidavit of merits to be executed
by the defendant stating or narrating the
circumstances constituting the FAME and of the
meritorious defense, and also the motion.
o Set out the circumstances that constitute
the ground (for example, fraud) and the
meritorious defense (state what is that
defense)
o Also include in the affidavit your
motion. So imong motion, mag allege pa
sa circumstances of FAME, of your
meritorious defense, and reiterate your
motion in your affidavit.
4. Motion shall be verified (verification)
o Meaning, it must be made under oath.
(2) WHEN THERE IS ALREADY A JUDGMENT
BUT NOT YET FINAL AND EXECUTORY
Remedies:
1. File a Motion for New Trial. (asking the court
to reopen the case and allow him to present
evidence)
o So if there is already judgment but not
yet final and executory, file a motion for
new NT, not motion to set aside order.
Requisites that need to be alleged in the
motion for new NT?
a. State ground (FAME) why he is asking
for presentation of evidence
b. Meritorious defense
60 | c a v e a t e m p t o r
 c. Affidavit of merits (Miranda vs
Legaspi)
i. States the nature and character of
FAME, meaning circumstances
constituting the fame
ii. Facts constituting movant’s good
and substantial defense
iii. Evidence which he intends to
present if motion for new trial is
granted
d. Motion for NT must be verified.
2. Or may file Appeal
o Can he file if he has not filed a motion
to set aside default order? Yes. Kanang
default, ang epekto ana, kana rang dili
siya makapresent ug evidence during
trial. Other remedies are still available,
including appeal.
o Problem with appeal is alkansi gihapon
siya. Because if he will file an appeal,
what the higher court will review is only
the evidences of the plaintiff presented
in the decision of the lower court. So
most likely, the higher court would
affirm the decision of the trial court.
o But is it possible nga meritorious iyang
appeal? Yes.
 Under (b), if the defendant has
been declared in default, the
court cannot grant different
relief (?) from what is prayed
for by the plaintiff.
 Example. 600k is prayed.
Evidence presented showed 1M
as collectible. Court could not
grant 1M. It would exceed the
amount prayed for by the
plaintiff. Court can only grant
600k.
 If court grants the
higher amount, that
would be a ground for
appeal.
 Or, if the court grants
unliquidated damages
(such as moral
damages, exemplary
damages, etc). Remedy
of defendant is to file
appeal.
o See: Bitte vs Sps Jonas (GR No.
212256, Dec 09, 2015)
 SC: The rule is that right to
appeal from judgment of default
can be done if amount of
judgment is excessive or
different in kind from that being
prayed for; or that the plaintiff
failed to prove material
allegations of his complaint; or
decision is contrary to law.
o In another case: Royal Plains vs Mejia
(G.R. No. 230832, November 12, 2018)
 SC: Default is not meant to
punish defendant, but to enforce
the prompt filing of the answer
to the complaint. The provision
that the defaulting party cannot
take part in the trial only meant
that he has already lost his
standing in the trial court.
 So, he can still file an appeal
from the decision.
3. Or: He can file a Motion for Reconsideration
(3) WHEN JUDMENT IS ALREADY FINAL AND
EXECUTORY
Remedies:
1. File petition for relief from judgment under
Rule 38.
- On what grounds?
a. FAME
b. meritorious defense
c. affidavit of merits, and
d. motion or petition for relief from
judgement must be verified.
- Effect of petition for relief from judgment?
Same with Motion for NT.
o But petition for relief from judgment
can only be filed if MNT is not filed. If
MNT is already filed, can no longer file
petition for relief.
2. Or, Petition for Certiorari under R65 on the
ground of default
o Suppose, improperly declared in default:
61 | c a v e a t e m p t o r
  If improper service of summons
so the court has not properly
acquired jd over the person of
the defendant. So allowed to file
petition for certiorari within 60
days.
o In petition for certiorari, FAME
 Also, affidavit of merits is no
longer applicable. Kay kanang
affidavit of merits kana rana sha
nga naa ang FAME.
 So, if ang ground improper
service of summons. For
example, there was no proper
service of summons pero
gideclare siyag default before
the lapse of period to file
answer. So the court has acted
with grave abuse of discretion.
Unsa may remedy ana? Petition
for certiorari.
3. Another remedy: Annulment of Decision
under R47
o Remember, this remedy is only limited.
Possible only if:
a. Decision is void
o So pwede nga if dili makafile ug petition
for certiorari (bec petititon for certiorari
should be filed within 60 days), if dili
kaavail, pwede ang annulment of
decision under R47.
b. Ground is extrinsic fraud.
o Extrinsic fraud – a kind of fraud that
prevented him or her from filing his
answer.
For remedies, read case of: Gomez vs Montalban (G.R.
NO. 174414 : March 14, 2008)
Remember: if some of the defendants have filed their
answer and some did not, those defendants who did not
file their answer can be declared in default. But the court
has not rendered decision yet. The decision of the court
should be based on the answer of the answering
defendants and of the evidences that he would present.
- That is if the defendants share a common
defense.
- See: Manguiat vs CA (G.R. NO. 150768 :
August 20, 2008)
Default, however, is not allowed in declaration for
annulment of marriage, legal separation or declaration of
nullity
- If defendant will not file his answer, the court
should require prosecutor to appear and conduct
investigation if there is collusion between the
parties
- The court should not declare the defendant in
default.
- Mao rani siya nga mga civil case nga ang
prosecutor muintervene, if di mufile ug answer
ang defendant, in order to know that there is no
collusion between the parties.
RULE 10
Amended and 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. (1a)
A pleading could be amended by adding or striking out
an allegation in the complaint.
Amendment
- There are changes in the allegation in the
pleading.
Kinds of Amendment:
1. Formal
o When it merely refers to clerical
corrections (sec4)
o 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.
o Corrections of clerical errors or
designation of the parties, formal.
2. Substantial
62 | c a v e a t e m p t o r
Amendment could be:
1. matter of right (Sec2) - Amendment by leave of court is required after a
2. with leave of court (Sec3) responsive pleading is filed.
o EXC: When amendment would refer
SECTION 2. Amendments as a Matter of Right. — A only to formal amendment.
party may amend his pleading once as a matter of right - If the amendment is with leave of court, the
at any time before a responsive pleading is served or, court may deny the amendment of the pleading
in the case of a reply, at any time within ten when the same is filed with intent to delay the
(10) calendar days after it is served. (2a) proceedings or the amendment would confer jd
upon the court.
o Example, complaint is for recovery of
- It is a matter for right before a responsive real property. Real action. Wala nastate
pleading as filed. ang assessed value as to the real
o As to plaintiff: It is a matter of right property involved. So, defendant filed
before the filing of the answer. answer with affirmative defense of lack
o On the part of the defendant, of jd over the subject matter.
amendment of the answer is a matter of  Example, X filed a complaint
right before a reply is filed. for recovery of ownership
 Amendment of the reply? A against Y in RTC. In the
reply could be amended as a complaint, there is no allegation
matter of right within 10 days as to the amount of assessed
from its filing, or before the value of the property. In his
filing of a rejoinder by the answer, among others, in Y’s
defendant. answer, the defendant, raised
- Amendment is only a matter of right only once. lack of jd over the subject
o If no responsive pleading is yet filed, the matter. After submission of
plaintiff may amend its complaint as a answer, X realized that indeed
matter of right once. he forgot to allege in the answer
o If will amend second time, it will now there is no assessed value. So,
require leave of court even if no he filed a motion for leave to
responsive pleading is filed yet. amend his complaint. Allowed?
No.
―Matter of right‖  An amendment to
- Di ka kinahanglan managhid sa court. confer jd upon the court
- Pwede raka musubmit dritso didto ug amended cannot be allowed.
complaint. And the amendment could be formal  Remember: When the court has
or substantial. no jd over the subject matter, it
has only one power: power to
SECTION 3. Amendments by Leave of Court. — dismiss. It can only issue one
Except as provided in the next preceding Section, order, and that is a dismissal
substantial amendments may be made only upon leave of order for lack of jd.
court. But such leave shall be refused if it appears to the  It cannot grant a motion
court that the motion was made with intent to delay to amend; it cannot
or confer jurisdiction on the court, or the pleading stated grant leave because it
no cause of action from the beginning which could be has only one power
amended. Orders of the court upon the matters provided which is to dismiss
in this Section shall be made upon motion filed in court, action.
and after notice to the adverse party, and an opportunity
to be heard. (3a)
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A pleading could not also be amendment if the
purpose of the amendment is to state cause of action
when in fact the complaint does not state coa from the
very beginning
- Case of Swagman Hotel. In this case, plaintiff
filed a collection case even when promissory
note is not yet due. Premature.
o Example, time of payment for defendant
is December, case was filed September
pa lang. Premature. Defendant filed
answer with affirmative defense that the
complaint did not state a coa.
o Plaintiff filed the motion to amend his
complaint, arguing that the coa has
already matured. Pwede ba? No.
o Amendment cannot be allowed if
pleading does not state coa from the
beginning.
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. (5a)
When issues not raised in the pleading or when a party
presented an evidence to prove an issue which is not
raised in a pleading, and adverse party did not object, the
complaint or pleading is deemed amended.
- Example, complaint did not state that there was
a demand to pay sent to the defendant before
filing the case in court. During trial, the plaintiff
presented a copy of demand letter to his witness.
Defendant did not object to the presentation of
demand letter.
o Kana man gung mupresent kag evidence
unya in order to prove a fact which is
not alleged, that is objectionable. The
rule is a party is only allowed to present
evidence to prove a fact that is in issue.
Meaning, a fact that is alleged in a
pleading. If a party would present
evidence to prove a fact which is not
alleged in the pleading, or which is not
in issue, that is objectionable for being
irrelevant. Pero ug wala rapud niobject
ang pikas kay naanad ug katulog sa
klase, bisag naghearing matulog.
- What would be the effect of the failure to object
to the presentation of an evidence to prove a fact
which is not in issue? (Here, plaintiff was the
one who presented an evidence to prove a fact
not in issue and defendant did not object)
o The pleading, for example the
complaint, would be deemed amended.
- Pananglitan. Defendant. Wala naallege that
there is partial payment made. During hearing,
receipts were presented nga gamay nalang diay
ang balance kay nakabayad na siya. If opposing
party will not object, the answer would be
deemed amended.
o If objected, amendment could no longer
be allowed.
- If a piece of evidence presented is not objected
to prove a fact not in issue, the pleading would
be deemed amended. But if objected,
amendment of the pleading could no longer be
allowed.
o In the old rules, court had discretion to
allow amendment. Pwede iallow ang
amendment even if objected.
o Under present amendment of civil
procedure, the provision allowing
discretion of the court to allow
amendment has already been deleted.
o So, if a party presents evidence to prove
an issue, and the same would be
objected, amendment could not be
allowed.
 Of course, that evidence could
not be also admitted. Irrelevant.
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)
What is a supplemental pleading?
- Under sec 6, the court may, upon reasonable
notice and upon such terms as are just, the court
64 | c a v e a t e m p t o r
 may permit a party to serve a supplemental
pleading setting forth transactions, occurrences
or events which have happened since the date
of the pleading sought to be supplemented.
- Iow, subject of a supplemental pleading is an
occurence that happened after the filing of
pleading that has to be supplemented.
o Example, D borrowed from C 10M,
with 10 monthly installments. When
first installment was due, plaintiff filed
collection case for the collection of first
installment. When case was pending, the
2nd installment became due. What would
be the remedy now?
 Here is an occurrence which the
maturity of the second
installment which may be
subject to a supplemental
pleading
Amended vs Supplemental Pleading
A – would supersede original.
S – would merely be in addition to the original pleading.
The original pleading will not be superseded
A – may be filed as a matter of right if there is no
responsive pleading yet filed.
S – needs leave of court.
A – presupposes that an occurrence happened before or
when original complaint was filed in court
S – refers to occurrence that has happened after filing
original
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. (7)
Amendment pleading, unsaon pagbuhat?
- Amended allegations shall be indicated by
appropriate marks.
- New words nga gipuli sa original must be
underscored. Underlinean to indicate that it is
the word replacing the original.
- In the complaint, it should also be underlined,
nya butangan nimog ―amended complaint‖ for
example, or ―amended answer.‖
SECTION 8. Effect of Amended Pleadings. — An
amended pleading supersedes the pleading that it
amends. However, admissions in 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. (8a)
What will happen to the original pleading when the same
is amended?
- Original pleading will be superseded by the
amended pleading.
- So, the original complaint will be disregarded.
What would govern, what would be the basis of
court in trying the case would be the amended
pleading.
- However, if amended pleading contains
admissions, kung naay mga admissions. For
example, answer giamend kay wala natarong ug
deny or naay naadmit nga di angay iadmit.
Whatever allegation alleged or stated in the
answer could be used as evidence against the
pleader.
o So unsay buhaton ana? Adverse party
has to present evidence.
o As a rule, allegations in the pleading are
not required to be supported by
evidence. These are considered judicial
admissions.
 But the moment that the
pleading which contains
objection would be amended,
those admissions could no
longer be considered judicial
admissions. Amended
admissions are considered
extrajudicial admissions which
require to be presented as
evidence.
RULE 11
When to File Responsive Pleadings
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.
65 | c a v e a t e m p t o r
When to file answer? Within 30 days after service of
summons.
Under Sec 11, the defendant may ask for 1 extension for
another 30 calendar days.
- Sa ato pa, 60 days tanan
- Kung apeke gani siyas time, pwede mangayo ug
another 30 days.
- But, only 1 extension is allowed.
SECTION 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.
(2a)
- Answer to be submitted by a juridical person
wherein the summons is served on the
appropriate government office?
o 30 calendar days (please check. Ang
giingon ni judge 30 days pero sa rules
60 days)
SECTION 3. 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.
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.
This Rule shall apply to the answer to an amended
counterclaim, amended cross-claim, amended third
(fourth, etc.)-party complaint, and amended complaint-
in-intervention. (3a)
- If defendant has not yet filed his answer (filing
of amended complaint is a matter of right), he
has 30 calendar days to file answer after being
served a copy of the amended complaint.
o If he has already filed an answer and he
wants to file an amended answer? 15
calendar days.
Suppose the defendant did not file an amended answer.
Can he be declared in default?
- No. His original answer shall serve as his answer
to the original complaint.
SECTION 4. Answer to Counterclaim or Cross-Claim.
— A counterclaim or cross-claim must be answered
within twenty (20) calendar days from service. (4a)
TN: Under existing jurisprudence, counterclaim or
crossclaim need not be answered.
- But if mutubag ang plaintiff, he has 20 days.
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. (5)
- Same with the complaint. 30 days.
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. (6a)
- Reply has to be filed within 15 days from the
receipt of the answer.
Remember: Reply is only required when there is an
actionable document attached to the answer.
- If there is an AD attached to the reply, defendant
may also file rejoinder.
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. (7a)
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. (8a)
A compulsory counterclaim if not raised in the answer
shall be considered barred
- It shall be stated in the answer.
66 | c a v e a t e m p t o r

SECTION 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 a cross-claim by
supplemental pleading before judgment. (9a)
Suppose, a counterclaim exists only after an answer is
filed.
- Under Sec9, the same may be presented as
counterclaim upon permission or with leave of
court by filing a supplemental answer before
judgement.
- The same with omitted counterclaim or cross-
claim. (Sec 10)
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. (10a)
SECTION 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)
- Only 1 extension is allowed.
Remember: Filing of extension to file other pleading is
not allowed.
- For example, motion for extension to file reply.
The same is not allowed.
- Only an extension to file answer is allowed.
RULE 12
Bill of Particular
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 averred 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. (1a)
Motion for Bill of Particulars
- Filed by a defending party if there are vague
allegations in the pleading to be responded to.
o Example, there are vague allegations in
the complaint. It was alleged that
―defendant committed fraud.‖ Kana
rajuy giallege. Vague. Before filing his
answer, defendant may file a motion for
bill of particulars asking the courts to
issue an order requiring the plaintiff to
make more particular the allegation in
his complaint regarding fraud.
- This motion is not only available to a plaintiff or
defendant, it is also available to any defending
party. A third party in a third-party complaint,
for example, may also file a motion for bill of
particulars, requiring 3rd party plaintiff to make
certain allegations in his third-party complaint
more particular.
SECTION 2. Action by the Court. — Upon the filing of
the motion, the clerk of court must immediately bring it
to the attention of the court, which may either deny or
grant it outright, or allow the parties the opportunity to
be heard. (2)
What would be the action of the court if a motion for bill
of particulars is filed? Sec 2.
- The court may right away, may deny outrightly
the motion for bill of particulars.
- Sa ato pa, naay discretion ang court to
immediately deny the motion for bill of
particulars.
o Or, the court may set the motion for
hearing.
BarQ: Defendant D, upon receiving copy of summons
together with the complaint, filed a motion for bill of
particulars. Motion was filed in the morning, in the
afternoon, defendant received a copy of the order of the
court denying his motion for bill of particulars. He filed
67 | c a v e a t e m p t o r
a petition for certiorari arguing that the court committed
grave abuse of discretion in not setting his motion for
hearing. Is the petition for certiorari correct?
- No.
- Under Sec2, court has the discretion to
immediately deny the motion.
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. (3a)
If granted, the party who is ordered by the court to
amend pleading is given 10 calendar days, unless
different period is fixed by 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. (4)
If party will not comply with order of the court?
- If plaintiff will not comply, Sec3rule17
o It is a ground for dismissal of the
complaint for failure to comply with the
order of the court.
- If it is an answer, under Sec14R12, if the order
is not obeyed or in case of insufficient compliant
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 judge.
- So, the answer containing vague allegations may
be stricken off the record.
o It is as if the defendant has not filed any
answer.
o So, he can be declared in default.
SECTION 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 five (5) calendar days in any
event. (5a)
Suppose, motion is denied, within how many days
should defendant file answer? Unsa may buhaton sa
defendant kung iyang motion for bill of particulars is
denied? Obviously he has to file his answer, otherwise
he will be declared in default. How many days?
- The remaining period.
- But if remaining period is only 3 days, 2 days,
automatic extension of 5 days.
- Iow, he has to file the answer within the
remaining period, but the remaining period
should not be less than 5 days.
- What does it mean if remaining period less than
5 days? Automatic extension.
SECTION 6. Bill a Part of Pleading. — A bill of
particulars becomes part of the pleading for which it is
intended. (6)
Note: Atong iskip ang rule 13 ha. Aron mas maayong
pagsabot ninyo. Adto ta sa rule 14.
RULE 14
Summons
- About service of summons.
Why is service of summons important?
Service of summons has 2 purposes: (Sagana vs
Francisco G.R. No.161952 October 2, 2009)
1. To acquire jd over the person of defendant
2. To notify defendant that an action is commenced
against him so that he may be given opportunity
to be heard on the claim against him.
o So, summons is required in compliance
of due process.
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)
68 | c a v e a t e m p t o r
Summons shall be issued within 5 calendar days from
the receipt of copy of the complaint (if the complaint is
not dismissed)
- Remember sec8rule9? If it is apparent that the
court has no jd, the court may dismiss. And if
appropriate docket fees not paid, pwede nga
idismiss sa court. Although, ang rule ana, pwede
rapud nga tagaan ug period ang plaintiff sa
pagbayad sa appropriate docket fees.
- Now, if there is no order from the court ordering
the dismissal of the complaint, the court has to
issue summons.
SECTION 2. Contents. — The summons shall be
directed to the defendant, signed by the clerk of court
under seal, and contain:
(a) The name of the court and the names of the parties to
the action;
(b) When authorized by the court upon ex parte motion,
an authorization for the plaintiff to serve summons to the
defendant;
(c) A direction that the defendant answer within the time
fixed by these Rules; and
(d) A notice that unless the defendant so answers,
plaintiff will take judgment by default and may be
granted the relief applied for.
A copy of the complaint and order for appointment of
guardian ad litem, if any, shall be attached to the original
and each copy of the summons. (2a)
Summons
- An order of the court directing the defendant to
file his answer within the period given.
- Now, it is 30 calendar days.
- There is now a warning that if he fails to answer
the complaint, a judgment of default may be
taken against him and the court may render
judgment based on the allegations in the
complaint.
- Together with the service of summons, apil ug
hatag ang copy of the complaint and its annexes.
o Karon raba, ang complaint kay pwerte
nang bagaa. Why? In the contents of
pleadings, aside from the ultimate facts,
kinahanglan na i-allege ang evidentiary
facts, unya ang evidences i-attach na sa
complaint, including the judicial
affidavits of witnesses.
 Before, 5 days before pre-trial
that judicial affidavit of
witnesses should be submitted.
 Now, i-attach na sa complaint.
 TANANG documents.
 Complaint and its annexes, iapil
na ug serve ngadto sa defendant.
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)
Kanang summons ha dili na si bisag kinsa lang ang
pwede makaserve. There are designated officers of the
court whereby part of their functions is to serve
summons.
- Dili pwede ang court interpreter, dili pwede ang
court stenographer.
- Who? Sheriff or the process server.
o Naa nay position sa court nga employee
sa court nga gitawag ug process server.
Siya maoy tigserve sa order sa court
ngadto sa litigants or counsels.
o The same with the sheriff.
69 | c a v e a t e m p t o r
  Pero if a court has a sheriff, the o Before, if ang defendant, nagpuyo sa
duty to serve summons must be layo, duha ang paagi.
with sheriff. Other orders mao  Una, ang sheriff sa CC maoy
nay anha sa process server. plitehan sa defendant ug maoy
- So not just any employee of the court. Only the paservon.
sheriff, his deputy, or other proper court officer.  Dunay gamay gasto,
o If the one who serves summons is not mucoordinate ang CC clerk of
proper court officer? Service of the court diri sa atoa didto sa clerk
summons is not valid. of court sa court nga naay jd sa
o Pananglitan, walay sheriff. Vacant. Kay gipuy’an sa defendant, ug
niretire. Wala say process server. Pwede muhangyo nga ang sheriff didto
ba janitor or utility worker, stenographer maoy paserbisyohon.
court interpreter, ang sugoon?  Service of summons
 Yes. would need money.
 But there must be a court order. Plaintiff niana
 Unlike sa sheriff, di na mupadala ug money
kinahanglan ug court order para igasto sa
order because that is pagserve sa summons sa
part of their function. sheriff.
 For example sa manila.
P1: If tagaan nimog money
If the sheriff fails to serve the summons. order nga 500, for
- Pananglitan gipangita sa sheriff ang address sa example ang sheriff, aw
defendant, pero wala jud makit-i sa sheriff bisag mukaratil (magkabuang,
kapila na niya gibalik-balik ang lugar. Unsa may magdali-dali) nanag
buhaton? serve ang sheriff didto.
o The court now may authorize the Paspas kaayo na
plaintiff to serve the summons together muserve. Labi na’g
with the sheriff. himuon nimog 1k. But,
o The court shall issue an order in a way, makasave ka.
authorizing the plaintiff to serve the Kay if imong plitehan
summons with the sheriff. ang sheriff, bigger
 Pero dili na mudritso ug uban gastos sa plete. Naa pay
ang plaintiff ha. Unya ra if dili gastos pangfood. Nya
malocate ang defendant. pasakyon pa nimog taxi.
Whereas kung
(tn: If dili sherrif, dili process server, kinahanglan ug magpadala lang kag 1k,
court order) wa na. Magkaratil
nanag dagan ang sheriff
P2 ddto.
Another instance wherein the summons would be served  But the two ways are applicable
by the plaintiff upon order by the court? before.
- When the defendant is residing outside the  Karon, iyaha na sa plaintiff.
judicial region of the court. Iyahang gasto tanan.
o Unsa man nang judicial region?
- For example, defendant lives in Mindanao or
Mnl. Then the court shall authorize plaintiff to P3
serve the summons. Suppose, plaintiff is a juridical person. Samot walay tiil
ang corporation or partnership. What should be done?
70 | c a v e a t e m p t o r
 - The juridical person must submit to the court the
name of the authorized person who would serve
the summons.
o If corporation, the court has to issue an
order requiring the corporation to submit
the name of the person authorized by the
board to represent the corp to serve the
summons. Two authorities:
 First, authority from the board
authorizing the rep to serve the
summons
 And, second, authority from the
court authorizing him to serve
the summons.
P4
- Pananglitan, ang kadtong plaintiff naanad ug
panikas. Iya lang ibutang-butang didto nga
naservean na ug summons ang defendant aron
madeclare in default unya siya ra diay ang
nagpirma-pirma. Unsa may effect ana? P4.
o It shall be a ground for dismissal with
prejudice, without prejudice to
additional sanctions that the court may
impose upon the plaintiff.
 Bug-at kaayog silot.
 So that is without prejudice to
criminal responsibilities because
you falsified. You made it
appear that the defendant has
received summons when in fact
he has not. You submit that doc
to the court. That is a criminal
act.
P5
Suppose, the summons is returned. Wala jud maserve
bisag ang plaintiff na ang nangunay. What shoud be
done now with the case?
- The court has to order the plaintiff to avail with
the other modes of serving summons such as by
publication for the court to let the case move
forward.
- ―Service of summons by other means available
under the rules, such as service by publication.‖
- Failure to comply with the order of the court,
failure to have the summons served by
publication, is a ground to dismissal.
SECTION 4. Validity of Summons and Issuance of
Alias Summons. — Summons shall remain valid until
duly served, unless it is recalled by the court. In case of
loss or destruction of summons, the court may, upon
motion, issue an alias summons.
There is failure of service after unsuccessful attempts to
personally serve the summons on the defendant in his or
her address indicated in the complaint. Substituted
service should be in the manner provided under Section
6 of this Rule. (5a)
Before, if summons is returned without being served, the
court has to issue a so-called alias summons.
- What is alias summons? Another copy. Another
summons. Dili na pwede kadtong karaan.
Now, under the present amendment, the effect of
summons is the similar with the effect of a warrant of
arrest.
- Summons will remain effective/valid until it is
recalled or set aside by the court.
- If a summons is returned without being served,
the same can be used again to serve or be used
against the defendant. Naa lang gihapon siyay
effect, bisan pag nareturn.
o No need to issue alias summons even if
returned without being served.
o If giserve. Pag-uli, nabasa ug ulan ang
sheriff. Ang summons kay nagisi. That
would be the time that alias summons
will be served
** SECTION 5. Service in Person on Defendant. —
Whenever practicable, the summons shall be served by
handing a copy thereof to the defendant in person and
informing the defendant that he or she is being served,
or, if he or she refuses to receive and sign for it, by
leaving the summons within the view and in the
presence of the defendant. (6a)
- This is very very important.
Summons shall be served in person.
Service in Person vs Personal Service
SP – it should be the defendant himself who should
receive a copy of the summons.
71 | c a v e a t e m p t o r
PS – bisag kinsa ang makareceive; pwede lahi ang
mureceive, basta mareceive.
Service in person
- Means that it should be the defendant himself
who should receive the summons.
o Pananglitan si A ang defendant.
Kinahanglan si A himself who should
receive the summons.
 Not even his wife, brother, or
parents.
 It should be A himself
Under sec5, whenever practicable, the summons shall be
served by handing a copy thereof to the defendant in
person and informing the defendant that he or she is
being served by said summons.
Pananglitan, dili mudawat. Or if mudawat, di mupirma?
- If he will not receive, a copy of the same shall
be left within his view and in the presence of the
defendant.
o Ibilin sa salog ―dia ra sir. Ako lang ni
ibutang diri ha. Naa rana nimo if kuhaon
nimo or dili. Summons na. Dili ni siya
suman.‖ Lol
o Mas maayo pajud nag ingnon nimo nga
―sir, tubagon raba na nimo. Kung di na
nimo tubagon, desisyonan na sa court
base sa pamahayag sa plaintiff‖
Pananglitan, dili jud makit’an ang defendant. S6.
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)
If dili jud makit-an ang defendant kay sige lag busy or
naa na sa iyang opisina? How can summons be served?
What should the sheriff do? Avail substituted service of
summons.
TN: Substituted service is an exemption. It can only be
done if promt service of summons could not be done
within the period of 30 days after 3 attempts on 2
separate days.
- Maavail lang after there are several attempts.
Several attempts means at least 3 attempts, and
these three attempts has been made on two
different dates.
o Kung pananglitan. Ang sheriff. Pag-adto
buntag sayo, wala diha kay nakalaw na.
Kapuyan man siyag balik-balik, lingkod
sa siya didto sa unahan. Duwa billiard.
Pagbalik, wala gihapon. Pagkahapon,
gibalik, wa gihapon. Mao to iya nalang
gibilin sa papa. Valid substituted? No.
 The 3 attempts must be made on
at least 2 different dates, within
the period of 30 days. (3-2-30)
o If pag-abot, gidritso hatag sa igsuon sa
defendant. Valid? No.
 Substituted service of summons
would only be valid if prompt
service in person cannot be done
within a period of 30 days after
several attempts (at least 3
attempts) on 2 different dates.
In the return (when we say return, that refers to the
report of the sheriff), iya nang ibutang didto nganung
substituted service ang iyang gibuhat. So iyang ibutang
72 | c a v e a t e m p t o r
didto ang different dates nga didto siya, and the time,
and the reason why is it that it was not served.
- Date.
- Time.
- Circumstances why the summons was not served
in person.
Kada jud attempt.
- Nganu jud ibutang jud ang dates kung kanus’a?
In order to determine if different dates ba jud.
Basin nagtinapulan ang sheriff.
See Section 20: Requirements for a valid substituted
service of summons
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
service in person and the details of the
inquiries made to locate the defendant
residing thereat; and
 Must be residing therein.
 If: Igsuon sa defendant, pero
nibisita ra, dili pwede.
 There will be improper
service.
 Effect is fatal if there is
improper service of
summons. Court cannot
acquire jd over
defendant.
 What will happen if
court will proceed with
the trial without
acquiring jd over
defendant? Decision
will be void. Or, since
dismissal is without
prejudice, malangan.
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.
 ―Sufficient discretion‖
 Naay buot
 Kay basin miski 30 yo,
pero ang buot sa 10yo.
Himuon unyag tabanog
ang summons. Himuog
eroplano.
 So, kinahanglan nga at least 18
yo and with sufficient
discretion. Imo jud nang sukit-
sukiton. Unsay name, pilay
idad, if nagpuyo jud ba.
In the return, it should be provided on the date of
attempts, time, and circumstances as to why service is
not made.
Different modes of substituted service of summons?
Sec6.
1. 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;
o At least 18yo
o With sufficient discretion
o Residing therein
2. 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;
o Competent person: kinahanglan siyay
incharge anang opisinaha, or he should
be the receiving clerk.
o Competent person includes, but is not
limited to one who customarily receives
correspondences for the defendant, such
as:
 Tig-receive.
 Dili siya tag-iya,
manager or sinaligan sa
defendant, pero
competent person siya.
 Receiving clerk
73 | c a v e a t e m p t o r
  Or guard (if siya ang tig
receive)
3. 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\
o Only if refused entry upon making his
or her authority and purpose known
 Naa may subdivision or
homeowners nga strict kaayo.
Di makasulod. Inig sulod,
parahon sa guard.
o There was one case, giinstruct ang guard
sa nga if naa mangita from court, di
pasudlon. Wala pasudla. Unsaon man
nimo pagserve sa summons in person, or
paghatag nimo sa substituted persons
nga nagpuyo sa balay?
 Ang gibuhat sa sheriff, after
several attempts, iyang gibilin
didto sa guard. ―Ikaw la’y hatag
guard. Di man kaha ko
pasudlon.‖ Was there a proper
service of summons? Yes.
 Ruling under Robinson vs
Meralles has now been
incorporated in the new
amendment.
 By leaving a copy of the
summons with the
security officer in-
charge of the condo or
building, or subdivision.
 Pwede sad adto sa
officer of the
homeowners assoc.
 Or chief security in-
charge of the condo or
building is found
4. By sending an electronic mail to the defendant's
electronic mail address, if allowed by the court.
o Rule: Service of summons (or other
pleadings or motions) through email
could only be allowed if there is court
order.
SECTION 7. Service upon Entity without Juridical
Personality. — When 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. (8a)
- Example: Corporation by estoppels
- So, service of summons on one of them is
sufficient because they are considered as a
corporation.
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 by the officer
having the management of such jail or institution who is
deemed as a special sheriff for said purpose. The jail
warden shall file a return within five (5) calendar days
from service of summons to the defendant. (9a)
- When defendant is a prisoner, the jail guard
should be deputized by the court in serving
summons.
- So, service shall be made upon the prisoner to
the officer having the management of such jail
or institution who is deemed as a special sheriff
for said purpose
o And, the jail warden shall submit a
report regarding the service of
summons.
SECTION 9. Service Consistent with International
Conventions. — Service may be made through methods
which are consistent with established international
conventions to which the Philippines is a party. (n)
Hague Service Convention
- This is different with the Apostille Convention
in Evidence.
- Under this treaty, if defendant lives outside Ph,
pwede ra ang ilang government didto ang
muserve sa summons.
74 | c a v e a t e m p t o r
 o Office is called Central Authority
which will serve summons from
member countries.
o In Ph, pwede sad ta sugoon nila. Ang
atong govt pwede sad sugoon nga
muserve ug summons if naay taga didto
sa ila nga dia diri makita sa ato. We also
have Central Authority.
 Under present circular of SC, it
is the office of the Court
Administrator which is
designated as the central
authority.
 If naay taga laing lugar nga
member sa Hague Service
Convention nga dia diri
serbisyohan ug summons, ang
summons will be given to the
court administrator, and ang
court administrator na maoy
mupaserve sa summons.
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.
(10a)
- Served on him as well as legal guardian,
guardian ad litem, or together with parents.
TN: In the case of a minor, service shall be made on his
or her parent or guardian
SECTION 11. Service upon Spouses. — When spouses
are sued jointly, service of summons should be made to
each spouse individually. (n)
- If defendants are spouses, summons shall be
made to them separately.
- Kung wala ang usa dira, then you should make
several attempts first before resorting to
substituted service.
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)
- Served on any corporate officers mentioned in
Sec12.
TN: Enumeration is exclusive.
- If served on other persons, it cannot be.
However, if such service cannot be made upon any of
the foregoing persons, it shall be made upon the person
who receives the correspondence for the defendant at its
principal office
- Kung wala ang president, wala ang general
manager, di jud maserbisyohan. It can be
given/served to a receiving clerk or security
guard (kung maoy tigreceive)
If corporation is under reservation, service shall be made
upon its liquidator.
- Example, if summons is made with a bank. The
summons shall be served before the PDIC.
Last paragraph, service can be served through electronic
mail.
- Unsa toy gisulti ganina? When it is served
through email, it should be made through prior
leave of court.
SECTION 13. Duty of Counsel of Record. — Where
the summons is improperly served and a lawyer makes a
75 | c a v e a t e m p t o r
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)
`
Modes of substituted service?
October 9, 2020
Last Topic:
Service of summons.
In the service of summons:
Priority is service in person.
- Meaning, ang defendant mismo ang nagdawat.
- Kung ang bana ang giissuehan sa
service of summons, dapat ang bana jud
ang mudawat. If ang asawa ang nidawat,
dili nana service in person.
- Ang defendant jud mismo dapat ag
mudawat.
- ―Wherever he is found‖
- It does not matter if served in his
residence of office or anywhere. As long
as, summons is served on him in person.
- Example: Padung na ug balik ang
sheriff. Nya nihapit sa SM. Pagsulod
niyas (sha sheriff) cr, nagkatagbo sila sa
defendant. Gihatag niya ang summons.
Gidawat sa defendant. Is there proper
service of summons?
 Yes.
- If: gabii na. Padung na uli ang sheriff.
Nakaila shas servan, iya nakit’an, iya
giservan. Proper? Yes.
- Wherever and whenever the
defendant is found.
If for whatever reason service in person cannot be
made, substituted service may be made.
- But TN: Substituted service of summons is only
an exemption. It can only be done if there is
impossibility of prompt service of summons.
- Kanus-a ka makaingon nga there is
impossibility of prompt service of
summons? It is when summons cannot
be served(30-3-2 rule)
 Cannot be served in person
upon the defendant 30 days
from issuance, and despite 3
attempts to serve in person
within 2 different dates
- In such situation, can avail substituted
service.
- (a) By leaving a copy in the residence of
defendant to a person at least 18 yrs of age
and of sufficient discretion residing therein.
- If wala nagpuyo kay bisita ra, dili jud
pwede.
- (b) Could be served at the office. It must be left
with some competent person in charge.
- Not necessary that he is the one assigned
to receive docs. Bsta siyay in-charge.
- ―In-charge‖ includes, but not limited to,
persons who customarily receives
correspondences to defendants
 Example, receiving clerk,
secretary, or guard
- (c) resorted if first 2 is not available. If sheriff
or process server is refused entry to a
subdivision or condominium.
- Unsaon man pagserve (either personal
or substituted) kung di mudawat.
 Under the old rules, ang
substituted adto rajud sa
residence or office.
- So, under the present rule, substituted
service only if sheriff or person serving
would be refused entry
 Summons may be left to any
officers of the homeowners
association if it is a subdivision
or condominium corporation, or
chief security in-charge of the
community or bldg where
defendant may be found.
 Chief security in-charge
o Head guard.
o Not just any
other guard
- Robinson vs Meralles – di pasudlon.
Gibilin sa guard.
 In the new rules, chief security
officer.
 In this case, just the guard.
- In another case, the defendant knew that
a case was filed against him. Nituyo ug
76 | c a v e a t e m p t o r
 balhin ug residence pagkahibaw. Ang
sheriff, didto giserve sa iyang balay.
Was there a valid service of summons?
 Yes.
 Sagana vs Francisco (G.R.
No.161952 October 2, 2009)
 Where the defendant
temporarily stayed to
another place to avoid
service of summons, SC
said that substituted
service of summons was
proper.
- (d) E-mail (electronic means)
- Can only be done when there is a court
order
- Rule: whenever service, either by
summons or other pleadings, is allowed,
it should be with leave of court.
TN: Service of summons is important
- Improper or lack of service of summons would
deprive the court to acquire jd over the person of
the defendant.
Summons can be served in accordance with treaties
to which our country is a party. (Sec9)
- Such as: Hague Service Convention, to which ph
is a party.
- Court processes may be served in
different nations where the defendant is,
in accordance with HSC.
- Under HSC, the signatories of the treaty
are required to assign a so-called
Central Authority
 The summons will be sent to the
Central Authority and it will not
be the one who will serve the
summons.
 In Ph, Central Authority
is within Court
Administrator.
 So if naay servicean nga
naa sa Ph, it will be
coursed through before
the office of the court
administrator
designated as central
authority
 The same shall apply
when we will serve a
summons a person upon
a signatory. It will be
addressed to the
designated central
authority of the court
Service upon minors and incompetents (S10)
- Minors cannot be sued without joining parents
or legal guardians.
- So, in the serving of summons, parents must be
joined in the service of summons together with
the minors.
Service upon spouses (S11)
- Sps should be sued jointly. And whenever they
are served with summons, they shall be served
individually.
- Sa wife or husband separately.
- If di maservan ang husband kay naas
office, substituted service of summons
may be done (but rules shall be
complied)
Service Through Domestic Private Juridical Entity
(Sec12)
- Private domestic corporations or partnership.
- TN of the enumeration. According to SC,
enumeration is exclusive.
- Who are the persons authorized to receive
summons?
- President
- Managing Partner
- General Manager (not branch manager)
- Corporate Secretary (di ordinary
secretary. Di tong tigtype)
- Treasurer
- In-house counsel
 Abogado jud nga ilang
employee
 Not outsider nga gitawag ug
retainer
 Big corporations hire lawyers.
 Aside from hired
lawyers, naa silay
retainer.
 Ang pwede makareceive is the
in-house counsel, not a retainer.
77 | c a v e a t e m p t o r
- Kung wala sila kay busy?
- Under the amendment, in their absence
or unavailability, their respective
secretaries may receive the summons.
- Sa ato pa, ibutang sa return nganung ang
clerk or secretary ang gipadawat.
- If dili pud maserve sa secretaries? Or sila mismo
di pwede magpasulod or maservihan?
- If service cannot be made on the
foregoing persons, it shall be made upon
the person who customarily receives the
correspondence for the defendant at its
principal office
 TN of principal office.
 Most big corps in Ph, principal
office is in Mnl. If dili maservan
ang people provided, it is
allowed that it be served in any
person who is customarily or
designated to receive
correspondence for the
defendant corporation or
partnership at its principal
office
 TN: If guard. Dili dritsoon sa
sheriff. There is an order or
preference.
 Corp officers
 If could not be, to the
secretaries.
 If wala, persons who
customarily receives
- What about if a domestic corporate entity is
under receivership or under liquidation?
- Service shall be made with the
receivership or liquidator.
- Example. Bank. Napurdoy. Summons
shall be served in the PDIC.
- Last priority, should there be refusal to receive
summons despite efforts, service shall be made
electronically, if allowed by the court
- ―At least three attempts, on 2 different dates‖
- Unlike service in persons nga within a
period of 30 days.
- If after 3 attempts on 2 different dates,
bisag dili within a period of 30 days,
still could not serve, pwede na electronic
service. But should be allowed by the
court.
 Plaintiff here should fie a
motion for the service of
summons through electronic
mail
Sec 13
- Is there a possibility that the counsel will be
appointed by the court as special sheriff?
- Yes.
- Where the summons is improperly served and a
lawyer makes a special appearance:
 In the old rules, whenever there
is improper or absence service
of summons, the defendant
before would file a motion to
dismiss on the lack of jd over
the person of defendant. MD on
the ground of improper service
of summons is no longer
allowed.
- What do now?
- Now, the affirmative defense that the
court did not aquire jd over the person
of the defendant due to improper or lack
of service of summons over the person
of defendant
- During hearing, the court may deputize
counsel for defendant to serve the
summons
 Dili siyay mudawat ha. Siyay
paserveon.
 Q: Should he submit report by
the court in the service? Yes.
Under Sec20. He is deputized
by the court to serve the
summons.
- So, if lawyer questions the jd of the
court over the person of defendant, the
lawyer will be deputized by the court to
serve the summons. Siya ang musubmit
sa report or retun sa court.
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
78 | c a v e a t e m p t o r
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)
- Sometimes, it is difficult to file summons upon
foreign private juridical entity.
Under the Corporation Code, a foreign corporation can
only validly have the right to conduct business in Ph
after it obtains license under Corporation Code.
- One of the requirements before it is issued a
license to engage in business in our country, it
should designate a resident agent authorized to
accept summons and other court processes.
- Muengage man siyag business, so it is
expected na nga possible nga makasugat
siyag case. So, before granted license, it
is required to appoint or designate a
resident agent authorized to receive
summons and other court processes.
Under Sec14, when the defendant is a 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, just in case, granted license but no
designated resident agent, service of summons
on that foreign private juridical entity shall be
made through the proper government official
designated by law to issue summons.
- Or, if summons is not served to the govt
officials, summons shall be served on any of its
officers, agents, directors or trustees located or
found within the Philippines.
Who is a proper government official designated by
law to issue summons on behalf of foreign juridical
entity?
- Example, if a bank. If no resident agent,
summons may be made on that bank through the
BSP (Bangko Sentral ng Pilipinas)
- If an insurance company is being sued and it
has no resident agent, summons shall be served
through the insurance commission
- Other corporations which is not a bank or
insurance company? Summons may be served
through the Securities and Exchange
Commission (SEC)
Suppose a foreign judicial entity has no license to
engage business in Ph?
- Par 2: If a foreign juridical entity not registered
in Ph or has no resident agent but has transacted
or is doing business in Ph (isolated transactions),
such service may, with leave of court, be
effected outside Ph 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;
 Kung naa tay embassy sa nasod,
icourse through didto sa
embassy aron maserve sa
foreign judicial entity
- (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;
 Problem is: publication shall be
made in the country where the
defendant may be found.
- (c) By facsimile;
 By fax.
 Kana if naa kay fax number or
nakakuha kag fax sa defendant.
79 | c a v e a t e m p t o r
 - (d) By electronic means with the
prescribed proof of service; or
 Example, by email.
 Kana kung naa pud kay email
add.
- (e) By such other means as the court, in
its discretion, may direct.
 So any of those means.
 BUT: with leave of court.
See: Global Business Holdings Inc vs Surecomp
Software (G.R. No. 173463 October 13, 2010)
- About service of summons on a corporation not
granted to engage business in Ph but has
transacted, or entered into a transaction with a
Filipino.
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)
- Upon public corporations, any agency or office
in Ph, or the Republic of the Ph.
Service is made on the Office of the Solicitor General
- Remember Office of the SolGen is the law firm
of Ph.
- Whenever an agency of Ph is sued,
summons shall be served on the OSG
- Example: if imong ikiha ang Mactan Cebu
International Airport. Summons shall be served
on the OSG.
- Example: ikiha nimo ang DepEd. Summons
shall be served in the OSG.
- See: Heirs of Manguiat vs CA (G.R. NO.
150768 : August 20, 2008)
- In this case, the defendant, the agency
being sued is the Bureau of
Telecommunication. It is an agency of
Ph. Summons shall be served on the
OSG.
In case province, city or municipality?
- Summons will be served on the executive head
(mayor, gov) or its legal officer.
- Legal officer, example city atty, or
provincial atty.
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)
Suppose defendant could no longer be located in the
residence stated in the complaint, and his whereabouts is
unknown.
- Example, niingon ang silingan nga dugay na
nibalhin.
- May the sheriff resort substituted service of
summons? No. He is not anymore residing in the
address stated in the summons.
- Substituted service presupposes naa
siyay balay or office.
- Remedy when whereabouts is unknown? Sec 16.
Summons may be served by publication
In a case, ang abogado, kay muhatag man nag copy ang
sheriff sa copy of summons, gibutang sa sheriff that
defendant could no longer be located. Ang gibuhat sa
abogado, iyang gidritsog papublish sa newspaper ang
complaint. Sakto ba ang gibuhat sa abogado?
- No.
- Why? Before service of summons could be
done, there should be a motion asking for leave
of court to serve summons by publication on the
ground that his whereabouts are unknown.
- It is only when there is leave of court that
service by publication shall be made on the
defendant.
- Entire complain shall be published, together
with the summons
80 | c a v e a t e m p t o r
Whenever service of summons is made, there should
also be complimentary service of summons by
registered mail.
- Kaluha.
- Pero di naman kaha siya makita sa iyang
address? Nganung padalhan? For formality.
- Called complementary service of summons by
registered mail at his last known address.
Is this applicable to all kinds of cases?
- Yes.
- In rem, quasi in rem, in personam.
- In Sec 16, it says ―in any action‖
- So, whether it is an action in rem, quasi in rem,
in personam, or whether it involves property of
defendant or not, may be served by publication
coupled with complimentary service of
summons by registered mail.
How long shall defendant file answer?
- Not less than 60 days.
How many times?
- The rules do not mention how many times.
- So unlike in Special proceedings nga gibutang
jud how many times,
- So naay courts, once ra, twice ra.
TN: The defendant is residing in Ph, but his
whereabouts is unknown.
- He is a resident defendant.
- He is residing in the Ph although his
whereabouts is unknown.
Rules are different if defendant is not a resident and is
not in Ph
Read:
- Santos vs PNOC (GR No. 170943 Sept23, 2008)
- About service of summons upon
defendant whose whereabouts is
unknown.
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. (15a)
Applies to a defendant not residing in Ph, and at the
same time cannot be located in Ph.
- Necessarily, he is a foreigner.
- He could be a former Filipino or is a Filipino,
but is residing abroad.
How is summons served on him? Sec 17
How?
1. Personal Service
- Adtoon jud sa ilaha.
- For example, sa America. Adtoon jud
didto.
- It could be ang sheriff ang plitehan, or it
could be coursed through __ affairs.
2. It could be through provisions of
international conventions or treaties
- For example, under HSC.
 So pwede magpasend ta ug
summons in the foreign country,
nya ipaserve ang summons sa
Central Authority.
3. By publication in a newspaper of general
circulation
- Remember, defendant is not a resident
in PH.
- Here, the ROC do not mention, do not
require that the publication will be made
on a newspaper in the country where he
may be located. Here, it may be in a
newspaper of general circulation.
 So pwede publication sa Ph.
81 | c a v e a t e m p t o r
 4. By any other manner or means that the court
may deem sufficient.
- This last means is broad.
- Pwede i-email? Yes. Provided, the court
will allow it. There must be a prior leave
of court.
- Pwede ba registered mail?
 There was a case nga ang
plaintiff hinglabihan kapobre.
Dili makapapublish, di kaserve.
 So he asked the court to send
through registered mail to his
defendant.
 In the case of Carriaga vs
Malaya, SC allowed.
 Service of summons by
registered mail under S17 is
allowed.
- But remember, defendant is not residing
in Ph, and cannot be located in Ph. Di ni
muapply sa tanan.
When we discussed Sec16, service of summons by
publication would apply to any action (in rem, quasi in
rem, in personam)
- In Sec 17, the four modes discussed whereby
defendant is not residing in Ph, and cannot be
located in Ph will only apply to an action filed
against a defendant not residing in Ph and
cannot be located in Ph, and the action affects
the personal status of plaintiff
- Example. Annulment of marriage.
Declaration of nullity of marriage.
Recognition.
- Example. Filipina, naminyo ug
foreigner. Ang foreigner ni hit-and-run.
Igo ra nagpakasal, nya nibiya. Filipina
had to file declaration of nullity of
marriage. Nya ang bana tuas laing
nasod. So Sec17 is applicable.
- But remember, there should be a leave
of court first.
Common mode: service of summons by publication.
- Remember: Complimentary of service of
summons by registered mail in the last known
address of defendant.
- Meaning, in the last address stated in the
complaint
- So if imong bana foreigner, nya last
nimo nahibal’an tua nagpugyo sa
Miami, Florida, didto nimo imail.
If: Dili mo minyo sa foreigner. Naa moy anak. Nya di
iacknowledge sa papa. Recognition. Nya tua namans
gawas ang papa. Would it affect status of plaintiff
(child)?
- Yes.
- So, Sec 17 is allowed.
Case affecting personal status of plaintiff is called action
in rem.
Aside from actions affecting personal status, it also
applies likewise to actions which involve property of
defendant (either real or personal property)
- Action quasi in rem. Directed against a
particular person but the intention is to dispose
the property, or to bind, or attach the property of
the defendant.
- Sec 17 applies to actions affecting personal
status, it also applies likewise to a case wherein
the subject is a property located within Ph and in
which the defendant has a claim or interest in
such property, and in which the relief demand
consists, wholly or in part, in excluding the
defendant for any party therein.
- Example, recovery of ownership over a parcel of
land. Recovery of posession over personal or
real property.
Sec 17 would not apply if action is purely in personam
- Does not involve status of plaintiff, or property
of defendant.
- Example. Korean nangutang sa iya friend nga
Filipina. Nilayas, niuli sa Korea. Possible case
sa iyang giutangan? Collection of sum of
money. Muapply ba ang sec17 or sec16? NO
- Sec 16 applies to a defendant who is
residing in Ph but whereabouts could
not be found
- Sec 17 applies if action involves
personal status or involves property
where defendant has interest. Collection
of sum of money does not involve
personal status, or a property where
defendant has an interest.
82 | c a v e a t e m p t o r
 - So, if filean siyag kaso, dili muprosper.
There is no way that summons will be
served.
How many days is given to defendant to file answer?
- 60 days from service of summons
- Or if publication, 60 days from publication
Read:
- Valmonte vs CA (G.R. No. 108538 Jan22, 1996)
- Sahagun vs CA (G.R. No. 78328 June 3, 1991)
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
Philippines, as under the preceding Section. (16a)
- Defendant residing in Ph but temporarily out of
Ph.
Service of summons could be served by any of the
means mentioned under Sec 17
But, in the case of Montefalcon vs Vasquez (G.R. No.
165016 June 17, 2008):
- SC: If the defendant is temporarily out of Ph,
substituted service could be availed of.
- (lzl res) Obviously, personal service of summons
was not practicable since the defendant was
temporarily out of the country. To proceed with
personal service of summons on a defendant-
seaman who went on overseas contract work ─
would not only be impractical and futile ─ it
would also be absurd.
- The impossibility of prompt personal service
was shown by the fact that the Naga City-based
sheriff purposely went to a barrio in Camarines
Sur to serve the summons personally on
Vasquez. When service of summons failed, said
sheriff ascertained the whereabouts of Vasquez.
Upon being informed that Vasquez was in
Manila, the Naga court commissioned a Taguig
City-based sheriff to serve the summons. Both
the Naga and Taguig sheriffs inquired about
Vasquez's whereabouts, signifying that they did
not immediately resort to substituted service.
There was no undue haste in effecting
substituted service. The fact that the Naga court
allowed a reasonable time to locate Vasquez to
as far as Taguig shows that there was indeed no
precipitate haste in serving the summons
- In this case, we agree that the substituted service
in Taguig was valid and justified because
previous attempts were made by the sheriffs to
serve the summons, but to no avail. Diligent
efforts were evidently exerted in the conduct of
the concerned sheriffs in the performance of
their official duty.
In the case of Mangila vs CA (G.R. No. 125027 - August
12, 2002):
- Where defendant is a resident of ph but
temporarily out of Ph, service of summons by
publication is also proper.
Remember that when the action is an action quasi in
rem, or in rem, acquiring jd over the person of the
defendant is no longer necessary for the court to acquire
jd to hear the case.
- However, service of summons upon defendant is
still required in compliance of due process.
- Acquiring jd over the person of defendant is no
longer necessary. It is enough that the court has
acquired jd over the res (over the property)
- Ato man gud nahinumdoman nga ang pagserve
sa summons, two purpose:
- Acquire jd over person of defendant
- In compliance of due process
 By serving summons, the
defendant will be informed of
the case against him and will be
given opportunity to be heard.
- In the case of Valmonte vs CA (G.R. No.
108538 January 22, 1996)
- When the action is quasi in rem or in
rem involving a defendant not found in
Ph, acquiring jd upon the person of the
defendant is not necessary, as long as
the court has acquired jd over he res.
- Service of summons is required to
satisfy requirements of due process.
- (lzl res) Service of summons in the
manner provided in §17 is not for the
purpose of vesting it with jurisdiction
but for complying with the requirements
of fair play or due process, so that he
83 | c a v e a t e m p t o r
 will 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 the plaintiff and he can
thereby take steps to protect his interest
if he is so minded
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)
- Whenever leave of court is required, motion
shall be in writing supported by the affidavit of
the plaintiff or some person on his behalf, setting
forth the grounds for the application.
- Such as leave of court to serve summons by
publication.
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)
―Return‖
- Report of the sheriff or other persons authorized
to serve summons.
- Under this section, sheriff or such authorized
person shall give report to the court within 30
days from issuance of summons.
- Within 30 days of issuance, within 5 days from
service, the server shall file with the court and
serve a copy of the return to the plaintiff’s
counsel either personally, to the plaintiff’s
counsel or through electronic means.
- Why should a copy should be sent to
plaintiff’s counsel?
- For counsel to file appropriate motion
should no answer will be made
If service could not be made, tn of the requirements
under sec20.
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)
- So if served by counsel, the counsel is sworn to.
- If served through electronic mail?
- By 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.
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)
84 | c a v e a t e m p t o r
 - Remember to include Complimentary Service of
Summons
2. Action in rem or action quasi in rem
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. (20a)
Voluntary appearance of defendant even if there is
improper or absence of service of summons, defendant
failed to question service of summons, by filing any
relief other than questioning jd of the court over his
person is considered voluntary appearance.
- Example. Nifile ug motion for extension to file
answer. Nya pagfile niyag answer, giapil ang
affirmative defense of lack of jd over his person.
Is such affirmative defense valid? No more.
Earlier, the court has already acquired jd of his
person with the filing of that motion for
extension of time to file answer.
TN: Not only physical appearance. It also includes filing
any relief other than questioning jd of the court over the
person of the defendant.
October 16, 2020
Last Topic:
Different mode of serving summons
Service of Summons is very important. Two
purposes:
1. For the court to acquire jd over the person of the
defendant
2. In compliance with requirements on due process
- By serving summons, defendant will be
given the opportunity to know that a case is
filed against him, and will give him
opportunity to answer.
3 Kinds of Actions as to the binding effect:
1. Action in personam
- Service of summons is required.
- Here, the decision of the court or the action
in personam seeks to impose a personal
liability or responsibility upon a person,
upon the defendant.
- Service of summons is not a pre-requisite
for the court to acquire jd on the defendant.
- In action in rem or quasi in rem, acquiring jd
over the person of the defendant is not
required.
o Provided, that the court has acquired
jd over the res, or over the property.
- Case: Freyas vs Alcayde (Feb 28, 2019)
(recent decision of SC)
- Acquiring jd over the person is not
necessary. However, service of summons
upon the defendant is still required.
Summons still has to be served to the
defendant.
o Not for the purpose of acquiring jd
over the defendant.
o Purpose is in compliance with the
requirements of due process.
- What will happen if no summons is served
upon the defendant? Just the same.
o According to the SC in De Perdo vs
Romasan Developtment Corp (G.R.
No. 194751 Nov 26, 2014): If there
is a violation of the right to due
process on the part of the defendant,
that would raise a serious
jurisdictional issue.
 SC: The violation of a
party’s right to due process
raises a serious
jurisdictional issue which
cannot be glossed over or
disregarded. Where the
denial of the fundamental
right of due process is
apparent, a decision
rendered in disregard of that
right is void for lack of
jurisdiction.
o Hence, regardless of the nature of
the action, proper service of
summons is imperative (necessary).
A decision rendered without proper
service of summons suffers a defect
in jurisdiction.

85 | c a v e a t e m p t o r
 - Actions in rem or action quasi in rem,
property is involved.
o Usually, this is applicable in special
proceedings.
o Action in Rem. It involves status, or
establishment of a fact.
o Quasi in rem. The action involves
an action filed against a certain
person but it seeks to impose
liability or it seeks to impose a lien,
or to erase any interest of the
defendant over the property.
S23R14 – Voluntary Appearance
- Voluntary appearance of a defendant in an
action is equivalent to service of summons.
- VA does not necessarily refer to the physical
appearance of the defendant in court. It
involves a filing of a motion or any pleading
that seek remedies from the court.
o Exampe: A motion for extension of
time to file answer; or motion for
recon;
o Filing of such motions are
considered voluntary appearance of
the defendant.
So when can a defendant while a pleading but the filing
of the pleading would not be considered as VA?
- When he alleged or alleges in his answer the
affirmative defense of lack of jurisdiction
over his persons, either due to lack of
service of summons or due to improper
service of summons.
S23 2nd sentence:
- Inclusion in the motion to dismiss of other
grounds aside from the lack of jurisdiction
over the defendant is equivalent to VA.
- ―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.‖
- This statement could be confusing.
- Why? If we are to follow this provision, if
the defendant would like to question the jd
of the court over his person, he has to file a
motion to dismiss on the ground of lack of
jd over that person. In other words, on such
ground alone. Because, if he will include
other grounds, such as prescription,
improper venue, the inclusion of other
grounds for the dismissal of the case would
be considered as a voluntary appearance or a
waiver of his right to question the jd of the
court over his person.
o So, kinahanglan nga kung mufile
siya ug motion to dismiss, kana
rajung maong ground. Mag-inusara
jud siya. Di pwede ubanan ug lain.
- So why is it confusing?
- Nga sayon raman pagsabot.
- Kung ang defendant ganahan muquestion
of the jurisdiction of the court over his
person dues to lack of service of summons
or improper service of summons, all he
has to do is file a motion to dismiss on the
ground of lack of jd over his person or on
such ground.
- But, if you connect this to Sec12(a)R8
o Sec 12 is about affirmative defenses.
- In the section, lack of jd over the person of
the defendant should be alleged as an
affirmative defenses.
o Lack of jd, no jd.
o If the court did not acquire jd over
the person of the defendant due to
improper service of summons, it has
to be alleged as one of the
affirmative defenses.
- Ato pajud na iconnect sa Rule 15 Sec12.
- S12R15, prohibited motions.
- Sec12 (a) tells us that motion to dismiss is
not allowed, 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 (litis pendentia); and
3) That the cause of action is barred by a
prior judgment (res judicata) or by the
statute of limitations (prescription).
- The grounds above are the only grounds for
which a defendant could file MD which is
not prohibited. Other grounds for MD is
prohibited.
86 | c a v e a t e m p t o r
 - In S23R14, the ground for lack of jd over
the person of the defendant should be raised
in a Motion to Dismiss, and kinahanglan
walay uban. Walay kuyog. Diba naay
inconsistencey?
- Ingon ang S23R14, the ground for lack of jd
over the person of the defendant should be
raised alone. Because if raised with other
grounds, will be waived.
- And then in S12R15, prohibited man. So
this is the problem of the recent amendment.
- We should connect in S12(a)R8.
To reconcile:
- Pwede maraise but as an affirmative defense
in the answer.
- Ang question napud ana, pwede ba iuban
ang other grounds (such as prescription)?
- Kay matod pas S23, di man pwede ubanan
ug laing grounds.
- In the opinion of Judge: Pwede.
- Why? Ang S23 naghisgot ra ug motion.
Wala siya naghisgot ug answer.
o So, kung motion ang imong ifile,
assuming motion to dismiss is
allowed, kinahanglan nga di nimo
ubanan ug laing grounds for
dismissal.
o Pero kung giapil nimo sa answer as
an affirmative defense, pwede.
- So, lack of jd over the person of the
defendant due to lack or improper service of
summons should be included as an
affirmative defense.
Before amendment, there was this case where the
defendant filed a motion to dismiss on the ground of lack
of jd of his person due to improper service of summons
upon the defendant.
- During the hearing of the motion (kay sauna
hearingon paman ang motion to dismiss.
Karon discretionary naman), the court did
not dismiss the case.
o If you look at Rule 16 in the old
rules, one of the grounds for motion
to dismiss is lack of jd over the
defendant.
- The court in the case did not dismiss the
case. Instead, he ordered for the issuance of
another summons (or alias summons) upon
the defendant and had it served properly on
the defendant.
- Question: Was the court in not dismissing
the case? (It is possible that this
jurisprudence may still be applied for the
new rules kay pwede raman gihapon maraise
ang ground, pero as an affirmative defense).
- In the case of PhilAm Life vs Briva (Nov
11, 2004), SC: The trial court was correct.
o SC: A case should not be
dismissed simply because an
original summons was 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. An alias summons can be
actually served on said defendant.
o So kung mureklamo ang defendant
nga the court did not acquire jd over
his person, pwede ra ang court dili
mupadismiss sa case. But instead,
would order the issuance of an alias
summons for the ??, and the same
should be properly served on the
defendant.
o Justifiable raman sad ang decision
sa SC. Reasonable man sad. Why?
 Kanang pagserve sa
summons, dili na sayop sa
plaintiff. Before, dili man
ang plaintiff ang muserve
(although karon pwede na
ang plaintiff ang muserve sa
summons, especially if di
makit-an ang defendant).
Before, ang muserve rajud
kay ang sheriff or process
server. If dili maserve ug
tarong, it’s not the fault of
the plaintiff. Why should
punish the plaintiff and
dismiss the case? It is not
the fault of the plaintiff why
the summons is not properly
served
87 | c a v e a t e m p t o r
  And so, according to the
SC, it would be fair and just
that if ever there is improper
service of summons by the
sheriff or process server, the
court may order that the
summons be properly
served.
 In the present amendment,
the summons shall remain
in force (shall remain valid)
until it is validly served.
o So, if we base upon the ruling of the
court in this case, if the summons is
not properly served, the court may
still order that it be properly served.
Let’s go back to Rule 13.
Nganung ato mang giulahi ang Rule 13?
- Rule 14 is about summons. Upon the filing
of the complaint, within 5 days from the
filing of the complaint, and if the complaint
is not dismissed by the court on any of the
grounds mentioned in Sec1Rule9, the clerk
of court has to issue summons. In the service
of summons, the sheriff or any person
authorize to serve the summons has to
follow Rule 14. Any other pleadings filed
after the filing of the complaint would
follow Rule 13.
o For example. What possible
pleading will be filed after the filing
of the complaint and after service of
summons? It would be the answer.
Or probably, motion. Motion to
dismiss, motion for extension of
time to file answer. Ang rule ana, sa
Rule 13.
RULE 13
FILING AND SERVICE OF PLEADINS,
JUDGMENTS AND OTHER PAPERS
- Rule 13 provides us the rules for the service
of pleadings, motions, orders, or decisions
from the court, other than the complaint,
other than the summons.
Sec 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. (1a)
Sec 2
―Filing‖
- Refers to the submitting of the pleading or
other paper to the court.
- So, filing – court.
―Service‖
- Act of providing the adverse party with a
copy of the pleading or any other court
submission.
- So, service – adverse party.
The copy of the pleading (exclude complaint) or a copy
of the motion, or even copy of the order of the court or
decision of the court shall only be served on the
counsel.
- It should not be served on the party himself
- Unless the court expressly provides that both
the counsel and the party should be served
with copy of the motion or the pleading.
What will happen if instead of serving a copy of the
motion on the adverse counsel, it was served on the
party himself?
- That service is invalid.
- It is as if that there was no service was at all
made.
TN: Rule of the thumb: Service first before filing.
- So before you file a motion, whatever
motion or pleading in court, the adverse
party has to be served first a copy of such
motion.
What about if a counsel appears for several parties?
- When a counsel appears for several parties,
such counsel shall only be entitled to one
copy of any paper served by the opposite
side.
o So, for example naay 5 plaintiffs
and there is only one counsel, usa ra
kacopy ang iya.
88 | c a v e a t e m p t o r
 - Why is it important nga butangan ug date
What about if there are several counsels for a party? and time?
- For example, defendant hired 3 counsels. o The date of the filing stamped on
- Only one counsel shall be served with a the pleading or motion filed would
copy of the motion. The lead counsel, if determine whether the motion or the
there such designation. pleading was seasonably or timely
o For example, 5 lawyers. Magpili filed within the reglementary period.
silag kinsa kunohay lead counsel. So  Naa man guy mga motions
copy will be furnished to him. nga naay tagal.
- If no such designation of lead counsel, then  For example, Motion for
any of the counsels. Reconsideration of a
- See last Sec 2 last par: Where several decision. It has to be filed
counsels appear for one party, such party within the 15 day period.
shall be entitled to only one copy of any Unsaon man pagkahibaw
pleading or paper to be served upon the lead kung nafile on time?
counsel if one is designated, or upon any Tatakan na siya sa clerk of
one of them if there is no designation of a court.
lead counsel  Actually, it is not the clerk
of court who will personally
Sec 3 Manner of Filing receive the motion or the
pleading. There is a clerk
How should a party file a motion or pleadings in court? who will do it.
(a) Submitting personally the original thereof,  Clerk of court is the
plainly indicated as such, to the court; supervisor of the
- Personal service employees. S/He is
- Not service in person, but personal service. a lawyer next in
(b) Sending them by registered mail; rank to the judge.
(c) Sending them by accredited courier; or  RTC clerk of court
- This is new. is required to be a
(d) Transmitting them by electronic mail or other lawyer. MTC, dir a.
electronic means as may be authorized by the
Court in places where the court is electronically As regards registered mail, the date of mailing of the
equipped. motions shall be considered as the date of their filing.
- Filing of the pleading could also be done by - Registered mail, date of mailing. Hasta pud
email or other electronic means as may be ang sa accredited courier.
authorized by the Court - Unsaon man pagkahibaw kung kanus-a
- As regards filing through email, there must nagmail nga di man na tatakan sa court? The
be a circular authorizing of the filing of the receipt.
same through electronic means. - So, for registered mail, there is a registered
- For example, during the time of pandemic, receipt. Private courier, there is also a
SC has issued Administrative Circular 32- receipt.
2000 allowing filing of pleadings and o The receipt has to be kept because
motions through electronic means. that will serve as proof as to the date
as to when the pleading or motion
As regards personal service, the clerk of court shall was mailed.
endorse on the pleading the date and time of the filing.
- ― endorse‖ In case of e-mail? The date of electronic transmission
o Meaning, tatakan. shall be considered as the date of filing.
o Shall stamp on the pleading. - So kung kanus-a gisend.
89 | c a v e a t e m p t o r

Sec 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.
- Again, remember that before filing of any
motion or pleading in the court, there must
be service first.
o Serve first the adverse party.
- The court will not accept motions or
pleadings without the adverse party first
having been furnished.
- Or kung dawaton man sa court, luoy ka nga
nafile kay eventually, it will be denied by
the court. It will be stricken off the record
for lack of service to the adverse party.
Sec 5
Modes of Service
Pleadings, motions, notices, orders, judgments, and other
court submissions shall be served personally or by
registered mail, accredited courier, electronic 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.
In Sec3, filing When we say filing, court. In Sec5,
service.
- Meaning, how to give or furnish copy of the
motion or other pleading to the adverse
party.
- Sec 5 tells us the different modes of service.
Modes:
a. Personal
b. Registered mail
c. Accredited courier
d. Electronic mail
- Again, rule of the thumb, under Sec?? if the
parties would consent to it, or if the court
would allow it
e. Facsimile transmission
f. Other electronic means as may be authorized by
the court
g. Or as provided for in international conventions
to which the Philippines is a party.
Remember that when we mentioned service of
summons, we also came across international service of
summons in accordance with international conventions
to which the Philippines is a party. The Hague Service
Convention was mentioned for service abroad of Judicial
Documents.
- Just recently, last month, the SC has issued a
circular regarding Hague Service
Convention.
o SC Administrative Order No. 251-
2020, Sept 11, 2020. (secure a copy)
 This is about the guidelines
of the implementation in Ph
of the Hague Service
Convention on the Service
Abroad of Judicial
Documents in Civil and
Commercial Matters.
o Under the Hague Service
Convention, if naa tay serbisyohan
nga defendant nga naa sa gawas,
pwede nato ipaagi sa Central
Authority. Every member of the
treaty assigns a Central Authority.
o Central Authority accepts requests
for service of judicial documents.
As far as Ph is concerned, it is the
Office of the Court Administrator
which is designated as the Central
Authority.
 IOW, member countries of
the convention nga gusto
magpaserve, gusto
mamalihog nato nga naay
serbisyohan ug summons of
somebody living in Ph, adto
ipadala sa OCA. Unya ang
OCA ang mangitag paagi
unsaon pagpaserve.
o Under the guidelines, once the OCA
receives a request for service of
certain foreign judicial documents,
it shall be forwarded to the
Executive Judge. The executive
judge will now assign a sheriff to
90 | c a v e a t e m p t o r
 serve that document upon the person
concerned.
o So, for example, naay court
murequest from Ph, adto ta sa
designated central authority sa ilang
nasod, ang central authority mao
nay bahala nga muserve sa
summons.
o For example, naay defendant who is
an American citizen living in
America. Pwede nato i-course
through sa Central Authority, and
sila nay bahala pagpaserve sa
summons.
o Of course, naay bayranan sa
pagpaserve. Or if it is not summons,
it could be order of the court.
Sec 6
Personal Service
TN: Personal service is different from Service in Person.
- What we know is that summons, in order to
be considered having personally served in
person upon the defendant, it is necessary
that the defendant himself would be the one
who would receive.
o Necessary nga siya mismo ang
makadawat sa summons
- But it is not necessary in the case of
personal service.
Under Sec 6, 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,
o it is personal service kung ang
counsel ang tagaan, which is proper.
o But TN, in summons, di pwede nga
ang abogado ang tagaan. Gawas
kung sa corporation (in-house
counsel).
- or by leaving it in his or her office with
his or her clerk,
o it is still personal service bisag ibilin
sa clerk
o But TN, in summons, it is not
service in person. It is substituted
service.
- or with a person having charge thereof.
So personal service, this has something to do kung
giunsa pagserve. Tawo ba’y nagserve, or if gipaagig
registered mail.
- If gipaagig registered mail, dili nana siya
personal service.
- If gihatod jud na didto, personal service.
If no person is found in his office, or if the office is not
known, or he has no office, then the copy shall be left
between the hours of eight in the morning and six in the
evening, at the party's or counsel's residence
- Preference of personal service is adto sa
office.
- If there is no person found in the office, or if
the counsel has no office, then residence.
o It shall be left with a person of
sufficient age and discretion
residing therein.
 This is still personal service.
 If summons, this is not
personal service but
substituted service.
Sec 7
Service by Mail
Aside from personal service, motion or other pleading
could also be served by registered mail.
- Mao ni usual buhaton, especially with
lawyers nga kana bitawng siya rang usa sa
office. Naa siyay clerk, pero wala siyay
messenger. So unsa may buhaton? I-mail ra
na.
- So registered mail, pursuant to Sec7.
The registered mail shall be addressed to the party, or the
party’s counsel at his office.
- But don’t be confused with ―at the party’s
office.‖ Remember that if a party is
represented by a counsel, a copy of the
motion or an order of the court or judgment
of the court or other pleading should be
served on the counsel and not to the party
himself.
91 | c a v e a t e m p t o r
If there is no registered mail, then the pleading or
motion could be served by ordinary mail.
- Before amendment, personal service is
preferred over registered mail. Before, if a
motion or pleading is served through
registered mail, there must be an explanation
why is it that the motion or pleading was not
served personally. Wala gani explanation
nganung wala gipersonal service, it is
deemed that the adverse party has not been
served with a copy of the motion or the
pleading. Isipon nga wala siya tagae.
o Pero karon, there is no such
preference anymore.
o The counsel may already choose
either personal service or registered
mail.
Sec 8
Substituted Service
Do not confuse this with substituted service of
summons.
What is 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
If ang counsel sa pikas dili nimo maservean through
personal service. Dili nimo mahatag ang copy sa motion
through personal service kay wala siyay office, wala pud
ka kahibaw asa siya nagpuyo. Or di pud nimo maservean
through registered mail kay wala dge kay address, asa
man nimo ifurnish ang copy sa motion?
- What you do is you deliver it to the clerk of
court. And that would be considered
substituted service.
o Adto nimo ideliver sa clerk of court.
- With proof that personal service cannot be
done, as well as the registered mail.
Sec 9
Service by Electronic Means and Facsimile
This can be done if the parties concerned would consent
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
Pananglitan, naay i-mail nga notice of hearing sa court.
Unya mudeny ang party nga nakadawat siya, maoy
hinungdan nga wala kuno siya katunga sa hearing.
- Sec 10 has this presumption:
Sec 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.
Problem with registered mail is hinay kaayo mudeliver
ang post office. Mao na ang rules under Sec10, naay
presumption nga gimail gani na siya 20 days prior to the
setting, for example notice of pre-trial gimail, unya 20
days na ang nilabay gikan sa pagmail, it is presumed that
the party, the defendant, has received the same.
- Kung pananglitan during pre-trial wala siya
nitunga. For example, ang plaintiff wala
nitunga. It is presumed that he has received
the notice when the notice was mailed 20
days before the pre-trial
- If the party is residing outside the judicial
region, he is presumed to have received the
notice if the mail was received 30 days prior
to the setting.
o Effect?
o Kung pananglitan during pre-trial,
ang plaintiff wala makatunga.
92 | c a v e a t e m p t o r
 Mangutana dayon ang judge ―unsa
man to, notified?‖ ―Yes. By
registered mail‖ ―When?‖ ―Last
month pa‖
 So the presumption is he
has received the notice.
o What will happen now?
 The case could be dismissed
for his failure to appear.
- But TN: Presumption is rebuttable.
o Kay basin pud tinuod nga wala jud
siya kadawat tungod sa kahinay sa
service sa post office.
Sec 11
Change of Email Address or Facsimile Number
- The party or counsel should immediately
inform the adverse party or the court
regarding the chage of email address.
- Not only that. Even his office address or
residential address
- Whenever he has change in office address,
the counsel must immediately or promptly
notify the court.
o Kay kung dili siya munotify
regarding the change of office
address, as well as the adverse party,
kadtong mga motions, mga order sa
court or even decisions nga didto
gipadala sa old address shall be
considered received by him
- Nya kung pananglitan nilapas na ang
reglementary period for example to file MR,
the decision now shall be considered final
and executor because there is no objection
filed.
So remember. Whenever a lawyer changes his office
address he should immediately notify the court.
Sec 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
Kaning mga amendments, kay bag-o, wala pay
jurisprudence.
Read the codal.
Sec 13
Service of Judgments, Final Orders or Resolutions
- About processes or documents from the
court to the parties.
What are the modes of serving the processes or
documents from the court to the parties?
1. Personal Service
- So in the court, there is a sheriff.
- Aside from the sheriff, there is also what
you call process server.
- Their work is to serve the orders, as well as
decisions, of the court
2. Registered Mail
However 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.
- Naa man guy mga parties nga nagdali. Kay
layo man ilaha, for example naas Bohol, di
pwede personal service. So most likely, by
registered mail. But registered mail takes 1
month. Nya gusto man siya magdali? So
mao na nga when he files a motion in court
asking tat the judgment or order just be
served through private courier at his
expense.
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
93 | c a v e a t e m p t o r
him or her also by means of publication at the expense
of the prevailing party.
- Remember summons by publication?
Nganung iserve man to by publication?
o Tungod kay dili siya makit-an. Dili
matultolan. So, iserve by
publication.
- So how do you serve judgment or order nga
dili man siya matultolan?
o Kung giunsa pagserve angsummons,
ingon-ana pud ang pagserve sa
judgment.
- So, the decision shall also be published in
the news paper.
o Is it necessary that the entire
decision be printed in the
newspaper?
 No. It is not necessary.
Pwede ra ang dispotive
portion.
o How many times should it be
published?
 The rule does not say.
 So, pwede once, twice,
thrice.
Sec 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 expressly
granted by the Court:
- Kinhanglan Personal service jud siya.
- Or, by registered mail if allowed.
- Not through electronic means, except when
there is permission by the Court.
o Court, here, refers to the Supreme
Court.
(a) Initiatory pleadings and initial responsive
pleadings, such as an answer;
(b) Subpoenae, protection orders, and writs;
- Walay problema sa Court kay kanang
documents sa court, duha rajuy pa-ingnan
ana. Personal Service or Registered mail.
- Kung kugihan ang process server, personal.
Pero kung magtinapulan siya, registered
mail. Pero if dinalian, the court may
expressly state in the order that the same
may be served personally.
(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
- ―Conventionally,‖ meaning by personal
service or by registered mail.
(d) Sealed and confidential documents or
records.
Karon nga panahon sa pandemic, pwede electronic mail.
TN of Sec14.
Sec 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.
o Pananglitan, dili dawaon sa
addressee?
o Service is complete 5 days after he
received the first notice of the
postmaster, whenever date is earlier.
o So ang kadtong actual receipt or
after expiration of the 5 days after
service
- Service by accredited courier is complete
upon actual receipt by the addressee,
94 | c a v e a t e m p t o r
 o or after at least two (2) attempts to
deliver by the courier service,
o 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.
 So, the date it was sent.
o 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.
 Is it possible nga imong
email ma-miss sent?
Possible.
- Service by facsimile transmission is
complete upon receipt by the other party, as
indicated in the facsimile transmission
printout.
Sec 16
Proof of Filing
How can you prove that you have filed?
- Again, remember if we say filing, we mean
filing in court.
- So how do you prove that you have filed
Motion for Reconsideration? Ipakita to
nimong brother stamp.
The filing of a pleading or any other court
submission shall be proved by its existence in the record
of the case.
- The main proof nga nakafile ka is ang imong
file copy nga nakaattach sa record.
- Usahay, di man na siya maattach. Tungod sa
kadaghan sa cases, mawani.
o So how do you prove nga nakafile
kag MR?
 Of course, kadtong rubber
stamp. Kadto imong copy.
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.
What about if it is filed through registered mail? How to
prove?
- Registry receipt and the affidavit of a person
mailing.
Suppose it is filed through private courier?
- The receipt and the affidavit of the person
mailing, including the tracking number.
What about if it is filed throuhg email?
- 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 acknowledgement
of its filing by the clerk of court
If the paper copy sent by electronic mail was filed by
registered mail, then paragraph (b) shall apply.
- (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.
Under (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.
- Kanang magfile ka through electronic mail,
ang kadtong nakareceive mupadala na ug
acknowledgement.
o Ang acknowledgement receipt, mao
to ang proof nimo nga nakafile ka sa
pleading or motion.
o This is important.
Sec 17
Proof of Service
95 | c a v e a t e m p t o r
What if muingon ang adverse party nga wala siya
nakadawat sa motion? How do you prove nga nakadawat
siya?
- Iyang pirma sa imong copy.
What about if it was sent or furnished to him by
registered mail?
- The registry receipt.
What about if it was sent through an accredited courier?
- The same. Official receipt.
TN: Together with the affidavit of the person mailing.
- For registered mail or through accredited
carrier
What about if the copy of the motion or other pleading is
served through electronic means?
- It can be proven by the affidavit of service
executed by the person who sent the same.
Sec 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 under the rules.
A paper copy of the order or other document
electronically served shall be retained and attached to the
record of the case.
- Pwede rapd nga ang court would send
copies of the decision or orders through
electronic means.
- But, hardcopy of the document shall be
attached to the record.
Sec 19
Notice of Lis Pendens
- Nasaag ni siya diri. Kay rule 13 is about
service or filing.
What is notice of lis pendens?
- Para ni sa mga cases involving property.
o For example, recovery of
ownership. There are conflicting
claims of ownership over his
property. Nya possible man ning
ibaligya sa actual possessor or
actual occupant.
 So unsaon man pagprotect
sa rights sa adverse party?
 Notice of Lis Pendens.
Under S19, 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
- So, pwede murequest sa RD that it shall be
annotated at the back of the title regarding
the pendency of the case.
- It shall be annotated, recorded there, that the
property is subject to a pending case.
- 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.
o Ibutang didto ang case title, the
parties to the case, and what is the
case all about.
The notice of lis pendens shall not be cancelled or erased
until ordered by the court.
What is the purpose of NLP?
- It would serve as a notice to the whole world
that the property is subject to court
litigation.
- Whoever purchases the property or
transferee, kung iyang paliton, hasta ang
kaso iyang apilon ug palit.
RULE 15
Motion
What is a motion?
A motion is an application for relief other than by a
pleading. (Sec1)
- Naay kalainan ang motion ug ang pleading.
- What is a pleading?
o Under Sec 1 Rule 6, a pleading
refers to a written statement of a
96 | c a v e a t e m p t o r
 party’s claims or defenses submitted
to the court for adjudication.
o A motion is an application for relief
other than by a pleading.
- Motion in layman’s term is just request.
o For billing purposes sa client, if you
use ―motion,‖ medyo mahalon ni
siya.
Sec 2
All motions shall be in writing except those made in
open court or in the course of a hearing or trial.
Kinds of Motions:
1. Written Motion
2. Oral Motion
- Those made in open court, in the course of a
hearing or trial.
- A motion made in open court or in the
course of a hearing or trial should
immediately be resolved by the court, after
the adverse party is given the opportunity to
argue his or her opposition thereto.
o So if a motion is made orally, the
court has to rule immediatey.
When a motion is based on facts not appearing on
record, the court may hear the matter on affidavits or
depositions presented by the respective parties
- For example, the plaintiff filed a complaint.
And the defendant filed a motion to dismiss
on the ground of res judicata.
o Res judicata, meaning there is
already a final judgment in a
previous case. There is a previous
case, and it has been decided with
finality.
o What is ??? possible mn nga wala
giapil sa complaint. Unsaon man
na?
o The court may hear the motion
based on affidavits or deposition of
the parties.
Sec3 Contents
In a written motion, the same shall state the reliefs
sought to be obtained and the grounds upon which it is
based. And if required by the rules or necessary to prove
the facts alleged therein, each shall be supported by
affidavits and other papers.
- So as we have said earlier, if, for example, a
motion to dismiss is based on res judicata,
then a copy of the decision in the previous
case involving the same parties and the same
cause of action should be attached to the
motion.
o Before, a motion should be set for
hearing. Aside from that, it is
necessary that a motion must
contain a notice of hearing
addressed to the adverse counsel.
The rule before was that if a motion
does not contain a notice of hearing
and it is not set for hearing, the
same should be considered as a
mere scrap of paper and the motion
shall be denied.
 For example, a defendant
would file a motion for
recon, and he forgot to
include in the motion a
notice of hearing. If the
counsel will forget to
include the notice of
hearing, the motion shall be
denied because it would be
considered as a mere scrap
of paper.
o In the present rules, it is not
anymore required. Because setting
the motion for hearing is now
discretionary on the part of the
court. Dili na kinahanglan nga ang
motion magcontain ug notice of
hearing.
Kinds of Motions:
1. Litigious Motion
- It is a kind of motion that asks for relief, that
if granted by the court, would prejudice the
adverse party.
- For example, motion to dismiss. Is it not the
movant, for example the defendant, is asking
for relief? The relief is for the dismissal of
the case. And if granted, would it not
97 | c a v e a t e m p t o r
 prejudice the plaintiff? It would. So it is
considered a litigious motion.
2. Non-Litigious Motion
- Motions that the relief is granted would not
affect the adverse party.
- Example, motion for extension of time to
file answer. If granted by the court, it would
not affect the adverse party.
- Another example, motion for postponement.
If granted, it would not adversely affect the
other party.
Sec 4
Non-Litigious Motions
- Gives us examples of non-litigious motions.
These motions shall not be set for hearing,
but instead, the court shall immediately rule
or issue a ruling on the same.
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;
- But remember: alias summons are only
issued when the original summons was lost
or destroyed.
o Because as discussed, the effect of
summons is already the same with a
warrant of arrest. It would remain
effective unless it is set aside or
served.
b) Motion for extension to file answer;
c) Motion for postponement;
d) Motion for the issuance of a writ of execution;
- Before, this is considered a litigious motion.
- But now, it is already considered as non-
litigious. Especially if the decision has
already become final and executory.
o Wala naman. Wala namay mausab
sa decision.
o So nag-expect na ang defendant
niana.
o So it can be issued immediately.
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.
What you should remember in motions: five (5) days.
- If it is non-litigious, the same has to be
resolved by the court within 5 days.
Sec 5
Litigious Motions
(a) Litigious motions include:
1) Motion for bill of particulars;
o Actually kaning motion for bp, pwede ni
ideny outright by the court under s2r12.
This can be immediately denied by the
court if the court finds the same without
merit.
2) Motion to dismiss;
3) Motion for new trial;.
4) Motion for reconsideration;
o Litigious jud ni. Kay if i-consider,
maapektaran man jud ang pikas
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading
has been filed;
o Remember, before a responsive pleading
is filed, amendment is a matter of right.
7) Motion to cancel statutory lien;
o Remember notice of lis pendens?
8) Motion for an order to break in or for a writ
of demolition;
98 | c a v e a t e m p t o r
 o This is mandatory for writ of
demolition.
 Kana bitawng humana ang
hearing, for example in an
ejectment case, pero di pa
mamahawa? Ipaguba?
 There should be a hearing.
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.
- Kaning (b), this is unnecessary. Why? This is
already in Rule13. Redundant nani.
(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.
- Even if this is a litigious motion, the opposing
party shall file his opposition to the litigious
motion within 5 calendar days from receipt.
- Remember? Basta motion, five days.
o Non-litigious, the court has to rule in 5
days.
o Litigious, the adverse party has to file
his comment or opposition to the motion
within 5 days from receipt of the copy.
 Di na siya maghuwat nga
sugoon sa court or orderan sa
court nga pacommenton.
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.
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, the court shall 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.
- Hearing now on a litigious motion is only
discretionary upon the court. Not mandatory.
―Deemed necessary for is resolution‖
- What is the importance of this phrase?
- Nag-anticipate ang court. Kay basin unyag i-set
lang ug hearing aron madugay ug resolve.
- If it is not necessary for the resolution of the
motion, then hearing is not necessary.
o Before, mandatory.
o Now, discretionary na sa court.
Sec 7
Proof of Service Necessary
Again, before filing, you have to serve a copy of
whatever pleading or motion to the adverse party.
- Clue: Serve first.
- Because if you file in court a motion, especially
a litigious motion, without proof of service to
the other party, the same shall not be acted upon
by the court.
Under Sec7, no written motion shall be acted upon by
the court without proof of service thereof, pursuant to
Section 5 (b) of this rule.
- If ever the court would set a litigious motion for
hearing, the same shall be set on Friday.
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
Motion day is Friday.
99 | c a v e a t e m p t o r
 - But there are others, by exception, that dili
makahearing ug Friday. Kay naa man guy
judges nga nagtinagurhag court. So unsaon man
niya nga di man na pwede nga adto sa 2 courts at
the same time. So magset siyag other day.
o Actually daghan kaynig gamit ang
Friday. If you remember in CrimPro
under the Continuous Trial, all
arraignment and promulgation of
decision, tua didto sa Friday.
Sec 9
Omnibus Motion
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.
- For example, mufile kag motion to dismiss,
kinahanglan tanang grounds.
o But remember kadtong ground nga lack
of jd over the person of the defendant, di
to ganahag groufie. Selfie rajud to siya.
 Gawas lang ug iallege nimo as
affirmative defense sa answer.
Remember: ―Except section 1 Rule 9‖
- What is this?
- These are the grounds for dismissal that cannot
be waived even if not included in a motion to
dismiss.
o For example, lack of jd over subject
matter. This can be raised even for the
first time on appeal.
Sec 10
Motion for Leave
There are several instances wherein a motion for leave is
required.
- Remember, before you file a third party
complaint, there has to be a motion for leave.
Under Sec 10, whenever a motion for leave is filed, the
pleading to be filed has to be attached to the motion. Or
the motion for leave has to be accompanied by the
pleading to be filed.
- A motion for leave to file a pleading or motion
shall be accompanied by the pleading or motion
sought to be admitted
Sec 11
Form - The Rules applicable to pleadings shall apply to
written motions so far as concerns caption, designation,
signature, and other matters of form.
Sec 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; (litis pendentia) and
3) That the cause of action is barred by a
prior judgment (res judicata) or by the
statute of limitations. (prescription)
- These grounds are the only grounds for a motion
to dismiss.
- If you notice, these grounds are in Sec 1 Rule 9.
- Actually, under Par(a), matawag ni nato siya as
dili exclusive.
o Kay naa pamay laing grounds for
motion to dismiss.
o For example, defective certification of
forum shopping. This is a ground for
dismissal. The defendant may file a
motion to dismiss on the ground of
defective CAFS.
o Another, non-referral to the barangay is
also a ground to dismiss. As discussed,
almost all civil cases, in fact the general
rule is that a civil case has to pass
through the Katarungang Pambarangay.
Failure to comply with this requirement
under the LGC is a ground for dismissal,
although the ground is without
prejudice.
 If a civil case is filed in court
without complying with the
Katarungang Pambarangay, the
same can be dismissed by filing
a motion to dismiss byt the
defendant.
100 | c a v e a t e m p t o r
 o Another instance when a motion to
dismiss can be filed – failure to pay
docket fees. This may be a ground for
dismissal.
 Although, we have learned that
if the appropriate (correct)
amount of docket fees is not
paid, the court may give time to
the plaintiff to pay the correct
amount. But that could be
aground for motion to dismiss.
This is not prohibited
(b) Motion to hear affirmative defenses;
- Remember S12(a) of R8, affirmative defenses?
- Motion to hear affirmative defenses is a
prohibited motion.
o Before, it is allowed. But now, it is no
longer allowed.
(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
- Usa rajud ang pwede nimo mafilean ug motion
for extension. Motion for extension to file
answer rajud. One time rapud.
o Di ka pwede mufile ug motion for
extension to file reply, or motion for
extension to file rejoinder, or motion for
extension to file appeal
(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, 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.
Sec 13
Dismissal With Prejudice
This is important.
Subject to the right of appeal, an order granting a motion
to dismiss or an affirmative defense that the cause of
action is barred by a prior judgment or by the statute of
limitations; that the claim or demand set forth in the
plaintiff's pleading has been paid, waived, abandoned or
otherwise extinguished; or that the claim on which the
action is founded is unenforceable under the provisions
of the statute of frauds, shall bar the refiling of the
same action or claim.
- Kung gidismiss ang case based on res judicata,
mafile pa diay nimo? Di jud ni mafile. Kung
imong ifile, dismiss gihapon on the ground of
prescription.
o If dismissed, remedy is appeal. Not
refiling.
It would be advisable to file an answer, and raise in the
answer the affirmative defenses even if those affirmative
defenses are subject to a motion to dismiss.
- Advantages?
- (1) If you file a motion to dismiss, tn that a
motion to dismiss is not a responsive pleading.
o For example. If you file a motion to
dismiss on the ground of res judicata or
lack of jd over the subject matter,
motion to dismiss is not a responsive
pleading.
o Effect? Considering that it is not a
responsive pleading, you cannot raise
counterclaim. So if the case is
dismissed based on such ground, you
cannot claim counterclaim.
o Whereas, kung mufile ka ug answer, and
the ground, for example res judicata, is
raised as an affirmative defense and you
101 | c a v e a t e m p t o r
 include in your answer counterclaim,
―because of the filing of the case, you
suffered sleepless nights, you were
constrained to hire services of a lawyer‖
that is counterclaim. Makaraise ka ana
in the answer. But you cannot raise it in
a Motion to Dismiss. Madismiss na,
pero wala kay counter claim (kung
motion to dismiss)
 When you file a motion to
dismiss, considering that it is
not a responsive pleading
- (2) When you file a motion to dismiss,
considering that it is not a responsive pleading,
amendment of a complaint is still a matter of
right.
o So mufile ka ug motion to dismiss,
pwede pa nga mausab ang complaint.
o Whereas, kung mufile ka ug answer
with affirmative defenses, amendment
would no longer be a matter of right.
But, it would be now a matter of
discretion on the party of the court.
Unya, if one of you grounds is that there is improper or
lack of service of summons, and so the court has not
acquired jd over the person, maraise na nimo together
with other defenses. Kay ang gisulti didto sa Sec23R14,
motion raman Dili man answer.
RULE 16
Motion to Dismiss
[Provisions either deleted or transposed]
- Wala nani ha. Gikatag-katag ning Rule 16.
Gipangdisperse.
- Most of the grounds for a motion to dismiss
gihimo nang affirmative defenses.
o Naas a Sec 12(a) Rule 8.
RULE 17
Dismissal of Actions
Sec 1
Dismissal upon Notice by Plaintiff
- This talks about dismissal upon mere notice by
the plaintiff.
- TN: Notice, not motion.
This can done by the plaintiff if there is no answer yet
filed by the defendant. By mere notice.
- For example, nagkasinabot sila. Pagfile kaso,
serve summons, niadto dayon ang defendant.
Gihurot ug bayad. ―Sir, unsa man tong
complaint?‖ ―Sige lang, ako lay magpadismiss
ato.‖
o So unsa man iyang buhaton? File notice
of dismissal.
- Pananglitan, wala nibayad. Nisaad lang. Niingon
bayaran within 1 month, nituo pud ang plaintiff.
As to the case, ipadismiss lang pud sa plaintiff.
Now, wala pamay answer, unsa may buhaton?
o Just file a notice of dismissal.
A notice of dismissal cannot be denied by the court.
- All the court has to do is to affirm the dismissal.
Pananglitan, pag-abot sa date nga gisaas, wala man
nituman. Pwede pa marefile sa plaintiff?
- Yes, because the dismissal by the plaintiff is
without prejudicie.
- But TN of the ―Two Dismissal Rule‖
o Ang first ra ang maoy without prejudice
The second would now be with
prejudice.
o For example, nisaad ang defendant nga
iya jung bayran. So gidismiss.Notice.
Nya kay wala man nituman. Girefile.
Naghilak2 nasad didto ang defendant.
Gidismiss napud by mere notice. The
second dismissal would now be with
prejudice. Meaning, it could no longer
be re-filed.
There is a case. Nafile siya sa wrong court. For
example, a collection case for the amount of 500K.
Didto man nafile sa MTC. The plaintiff has realized that
it was filed with the wrong court. SO the plaintiff, aron
dili kaayo siya mauwawan, he filed a notice of dimissal.
So it was dismissed (because as we have said, notice of
dismissal cannot be denied. It needs only affirmation by
the court). After receiving the notice of dismissal, di
pwede ifile sa other court kay maforum shopping siya.
Maghuwat jud siyag order for dismissal.
- After, the plaintiff filed the case in the RTC. For
whatever reason, before the filing of the answer,
102 | c a v e a t e m p t o r
 the plaintiff filed a notice of dismissal. After
that, he re-filed the case for the third time.
- The defendant this time file a motion to dismiss
on the ground of res judicata, arguing that the 2nd
dismissal was a dismissal with prejudice because
it was the second time the plaintiff has caused
the dismissal by mere notice.
- Question: Is the motion to dismiss of the
defendant meritorious?
o No. Why?
o Because in order for the two-dismissal
rule to apply, it is necessary that in the
first dismissal, the court must have jd
over the subject matter, and it was the
plaintiff who caused the dismissal.
Another example. The plaintiff filed a complaint.
However, it was dismissed because the defendant in his
answer raised an affirmative defense improper venue. So
it was dismissed. When it was re-filed in the proper
venue, the plaintiff filed a notice of dismissal before the
defendant was able to file his answer. When it was filed
for the third time, the defendant filed a motion to dismiss
on the ground of res judicata, arguing that the second
dismissal which was dismissed on notice of the plaintiff
was a dismissal with prejudice. Is the defendant correct?
- No.
- In order for Two Dismissal Rule to apply, the
first and second dismissal must be upon the
instance of the plaintiff.
- You notice that in the first dismissal, the case
was dismissed based on the instance of the
defendant because he raised it as an affirmative
defense that the case was filed in a wrong venue.
- See: Ching vs Cheng (Oct 8, 2014)
o The two dismissal rule under Rule 17
Sec 1 will not apply if the prior
dismissal was done at the instance of the
defendant.
Sec 2
Dismissal upon Motion of Plaintiff
Suppose, the defendant has already filed his answer.
Pwede pa ba nga mapa-dismiss sa plaintiff ang iyang
complaint?
- Yes, but there should prior approval of the court.
Under Sec 2, a complaint shall not be dismissed at the
plaintiff's instance except upon approval of the court and
upon such terms and conditions as the court deems
proper.
TN: The dismissal of the complaint does not
automatically follow the dismissal of the counterclaim.
- Remember, the reason why the dismissal
requires approval of the court is because the
dismissal would only be limited to the complaint
and not to the counterclaim.
- Remember: What is dismissed is the complaint
and not the case.
- The counterclaim of the defendant shall be tried
or prosecuted either in the same action, or in a
separate action.
o But usually, in the same case. Kay
nganung maghasol-hasol paman kag file
ug laing kaso?
o But the defendant has to inform the
court that he wants his counterclaim to
be prosecuted in the same case.
 Pero nganu mang ipadismiss sa
plaintiff ang case pero ang
counterclaim dili niya
ipadismiss?
 Ang maayo nga buhaton, if ang
plaintiff iyang ipadismiss iyang
case, kinahanglan nga magsabot
sila nga ang counterclaim,
idismiss pud. So dili siya
magpadismiss sa complaint
without the defendant agreeing
to the dismissal of the
counterclaim also.
o Naa ba gud diay cases nga ang plaintiff
mupadismiss?
 Yes, possible magpadismiss.
 For example, magka-
compromise agreement sila sa
defendant.
 Pero mao dage, it must be part
of the compromise agreement
the dismissal of the
counterclaim.
 If you were the counsel
for the plaintiff, ayaw
jug sugot nga in the
dismissal of the
103 | c a v e a t e m p t o r
 complaint, dili pud
idismiss ang
counterclaim.
Just like the dismissal in Sec1, the dismissal is without
prejudice (meaning it can be re-filed), but the dismissal
is limited to the complaint, and not the entire case
because the counterclaim shall survive.
TN: Lim Teck Chuan vs Uy (G.R. No. 155701, March
11, 2015)
- SC: Dismissal of action is different from a mere
dismissal of the complaint. For this reason, since
only the complaint and not the action is
dismissed, the defendant, in spite of the
dismissal, may still prosecute his counterclaim
in the same action.
See also: Padilla vs Globe Asiatique Realty Holdings
Corp (G.R. No. 207376 Aug 6, 2014)
- Still about dismissal of the complaint and not
dismissal of the counterclaim.
Sec 3
Dismissal Due to Fault of Plaintiff
Kaning rule 17, puros ni siya dismissal at the instance, or
at the fault of the plaintiff.
- In our previous discussion, ato naming
gipanghisgotan ang grounds for dismissal.
In Sec 3, it says that 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 motu proprio upon the court.
- For example, the plaintiff, during the
presentation of his evidence, failed to appear in
court without informing the court as to the
reason why he failed to attend, the case could be
dismissed.
TN: During the presentation of the plaintiff’s
evidence.
- Because if the plaintiff failed to appear during
the presentation of the defendant’s evidence, the
case should not be dismissed.
o Kay humana man siya (plaintiff). Pwede
man siya di mutunga.
- And also, the case could be dismissed if there no
witness yet that has been presented.
o Because if there is a witness, for
example 1 witness, that has been
presented, it would not be proper for the
court to dismiss the case.
o What should be done by the court if
during the presentation of the 2nd
witness of the plaintiff, the plaintiff did
not appear? The court would not dismiss
the case, but instead declare that the
presentation for evidence of the plaintiff
is terminated.
 It would be erroneous on the
part of the court to dismiss the
case if the plaintiff has already
presented a witness.
Take note ani ha. Judge: ―Kung muingon gani kog take
note, take note.‖
Another, when the plaintiff fails to prosecute his
action for unreasonable time.
- Kanus-a man ni mahitabo? For example, do you
remember what is the duty of the plaintiff if the
defendant fails to file his answer within the
period to file answer?
o He has the duty to file a motion to
declare the defendant in default. Why?
Because the court cannot declare the
defendant in default motu proprio. There
has to be a motion.
- Suppose, the defendant fails to file such motion
for an unreasonable length of time, for example
muabot nalang ug 2 months, wala lang gihapon
mufile ug motion to declare the defendant in
default. The court will not declare the defendant
in default. That is not allowed. The court will
have to dismiss the case. On what ground? For
failure to prosecute.
Actually kung dili siya mutunga for the presentation of
the evidence, pwede 2 reasons or grounds.
- For example karong adlawa, initial presentation
of the plaintiff’s evidence. No word is sent or is
given why is it that the plaintiff failed to appear.
Ilang lawyer wala pud nitunga. Ila sang abogado
104 | c a v e a t e m p t o r
 wala nitunga. Silang duha pareho. The case may
be dismissed on two grounds:
o For his failure to appear during the
presentation of his evidence; and,
o For failure to prosecute.
Another instance, failure to comply the Rules or the
court order.
- For example, the court ordered the plaintiff to
particularize or to make more specific the
allegations of the complaint in view of the
motion for Bill of Particulars filed by the
defendant. But the plaintiff did not comply with
the order of the court. Or the court ordered the
plaintiff to amend the complaint on the ground
that indispensable parties have to be impleaded
but it did not comply with the order of the court.
o What is the remedy of the court?
Huwaton lang jud siya kung kanus-a
siya mufile ug amended complaint?
 The court may dismiss the case
motu proprio, or on motion of
the defendant.
Remember, Sec 3 is very important, especially if you are
the counsel for the defendant.
Sec 4
Dismissal of Counterclaim, Cross-Claim, or Third-
Party Complaint
RULE 18
PRE-TRIAL
Sec 1
When Conducted
When should the pre-trial conference be conducted?
- Sec 1 says that after the last responsive
pleading has been served and filed.
Q: What is ―last responsive pleading‖?
- This depends.
- If the plaintiff did not file a reply, the last
responsive pleading would be the answer
- If the plaintiff has filed a reply, but the
defendant did not file a rejoinder, the last
responsive pleading is the reply.
- If the defendant has filed a rejoinder, then the
rejoinder, then the rejoinder is the last
responsive pleading.
But remember when it is required to file a reply.
Remember when the defendant is required to file a
rejoinder.
Under Sec 1, 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.
- Before amendment, plaintiff’s counsel maoy
mufile sa motion to set the case for pre-trial.
- In the new rules, it is the clerk of court who shall
set, without waiting for any motion from the
plaintiff’s counsel.
Pero kung pananglitan, there is this case nga nakalimot
ang Clerk of Court. Possible raba ni mahitabo kay ang
Clerk of Court, pwerte rabang busyha ana.
- There is this case nga nakalimot ang clerk of
court sa pag-set sa pre-trial. Gidismiss sa court
kay wala man sad nifile ug motion to set the
case for pre-trial ang abogado sa plaintiff.
Nireklamo man ang plaintiff nganu kunong
gidismiss.
- Prior amendment, there is already a circular.
Kani nga amendment, based ni ug SC Circular
nga gihimo after 1997. Last amendment ani,
samtang wala pa ang new amendment, under
1997 amendment, ang plaintiff’s counsel ang
mufile ug motion. Later on, SC made a circular
nga ang clerk of court na.
- So wala man na-set sa clerk of court. Dugay na
kaayo nagstambay. Gidismiss sa court. Nasuko
ang plaintiff kay nganug gidismiss. Sakto ba ang
gibuhat sa court?
o See case of BPI vs Sps Genuino
o Whether the trial court was correct in
dismissing the case even if there is
already a SC Circular that directed the
clerk of court to set the case for pre-trial.
 (vdd research) In their view, the
non-filing of the basic motion
for setting of pre-trial would
have been, at best, a reasonable
economic signal that the bank
105 | c a v e a t e m p t o r
 was no longer interested. At
worse, it was clearly negligence
of an entity with enough
institutional resources to
maintain a large arsenal of in-
house and external counsel. The
bank’s explanation for its own
negligence is unvailing. While it
is true that A.M. No. 03-1-09-
SC does provide that the Clerk
of Court set the date of pre-trial,
plaintiff should not be rewarded
for his or her negligence. (BPI
vs Sps Roberto and Teresita
Genuino GR No. 208792, July
22, 2015)
o TN: The ruling of this case is still
applicable because the new amendment
is based on the SC Circular directing the
clerk of court nga maoy muset sa pre-
trial.
Sec 2
Nature and Purpose
The pre-trial is mandatory and should be terminated
promptly.
Suppose, the court forgot to set the case for pre-trial and
immediately set the case for trial. The counsels did not
call up the attention of the court. Would it be a
jurisdictional defect?
- There is no jurisprudence for this yet.
- Judge D thoughts: ―I think, that would not be a
jurisdictional defect.‖
- ―Jurisdictional defect,‖ meaning, it would not
make the entire proceedings void. Tingale, naay
administrative liability ang court or judge, but it
would not make the proceedings void.
- Although, Pre-trial is mandatory in civil cases.
What are the matters to be taken up during Pre-trial
conference?
(1) The number 1 purpose for pre-trial is for amicable
settlement.
- Kani man gung civil case, including criminal
case, dugay kaayo mahuman. Kadtong ang
parents ninyo kay lawyers? Tingale, naay case
gihandle nga kinder pa mo. Hantod karon, hapit
nalang mo maabogado, wala pa mahuman.
Possible nga kamo nay makahandle ana nga
case. Possible nga pending pa run sa CA or sa
SC. Tagdugay jud na siya mahuman kay in
cases, ang tagaag priority kay criminal case man
kay naay nadetain.
- So mas maayo nga masettle.
- So when you become a lawyer, you help the
court.
o Kanang clients nato, ang atong sulti
murag sulti sa ginoo. Mutuo jud na sila
nato.
(2) Simplification of issues
- What is issue?
- TN: Whenever a material factual allegation is
specifically denied by the defendant, it would
become an issue. Meaning, disputed fact.
- It will be simplified and clarified what will be
the issues.
(3) The possibility of stipulations or admissions of facts
and of documents to avoid unnecessary proof
- Possible nga naay factual allegations nga gideny
sa answer, but during the pre-trial, possible nga
ang kadtong defendant, or even the plaintiff
would have change of mind and would admit
such factual allegations.
- For example, ang defendant muraise ug partial
payment. Ang plaintiff, nideny. During pre-trial,
gipakita sa original copy sa receipt, pwede nana
siya muadmit.
- TN: Admission/s made during pre-trial are
considered judicial admissions.
o Remember your evidence?
o Judicial admissions do not require
presentation of evidence.
 They are deemed admitted.
 It is does not need evidence. It
is already established.
o So, mashorten ang proceedings. Kay di
naman ka kinahanglan mupresent ug
evidence for it. Di naka kinahanglan
mupresent ug witness to establish the
particular allegation. Kay admitted na.
- Admission or stipulations
106 | c a v e a t e m p t o r
 o Unsa man nang stipulation? Admission.
Stipulate, meaning admit.
(4) Limitation and identification of witnesses
- In the new rules, mahibaw-an na kinsa ang mga
witnesses kay upon the filing of the complaint,
the plaintiff is required to attach to the complaint
all his evidences. Testimonial, documentary, and
even object.
o The same with the defendant. Required.
o So pwede na mahibaw-an kinsay mga
witnesses.
- What is ―limitation of the number of witnesses‖?
o Limitation, for example muingon ang
plaintiff ―I’m going to present 10
witness.‖ Kadaghan ana. Pwede rana
malimit into 2.
 Unsa may itestify ni wtiness A?
Ni witness B? Mu-corroborate.
Musabat-amen ra ni A. What
about ni witness C, ni D, ni E?
Same ra ni A. So since parehos
ra, si A ra ug si B. So limit
(5) Possible referral to a case to a commissioner.
- Unsa man nang commissioner?
o Sometimes, there are issues that are
beyond the competence of the court.
o For example, boundary dispute.
Nakadungog namog silingan nga naay
naglalis anang boundary? Magkinihaay
sa court. Kay muingon ang isa ni
encroach. Ang isa muingon, iyang
silingan daw.
 Ang kanang boundary dispute,
masolve na sa court?
 Ang court maoy muadto didto
nya tan-awon kung
nakaencroach ba?
 That requires the intervention of
a geodetic engineer. So mao
na’y gitawag nga commissioner.
- A commissioner is a party or a person that
would help the court in resolving certain issues.
o Sa pananglitan, ilang gilalisan boundary
dispute. Sayon ra kaayo na iresolve. A
geodetic engineer will be hired. An
independent surveyor. Magtunga sa
gastos. And whatever will be the
findings, mao rana. Di mana malalis kay
exact science man.
o Kung masabotan nga kaning maong
fence nasulod, gubaon. If ang balay,
nasulod, gubaon.
(6) Possibility of rendering judgment on the pleadings or
summary judgment
- If during the pre-trial, there are additional
admissions aside nga nabuhat sa complaint or sa
reply, then there can be now judgment on the
pleadings or summary judgment.
- When there is a summary judgment or judgment
on the pleadings, wala nay hearing.
(7) Possible marking of the exhibits kung wala pa ma-
mark.
- Under the rule on judicial affidavits, the marking
of exhibits shall be done during the preparation
of judicial affidavits.
o Pero if naay mga evidence, exhibits nga
wala pa namarkahe, pwede markahan
during pre-trial.
(8) Comparison of the original with the copies.
- This can be done during pre-trial.
- If there are documents not available during the
prê-trial or there are witnesses that are not
available during pre-trial, there could be a
reservation of evidence.
o Under g(4), 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.
o No reservation shall be allowed if not
made in the manner described above.
107 | c a v e a t e m p t o r
 Under Sec 2, among the matters are:
October 23, 2020 (a) The possibility of an amicable settlement

RULE 18 - The judge should exert serious efforts to have

PRE-TRIAL the case settled so that the case will be disposed
fast.
Pre-Trial Conference o Ang counsel pud unta, maninguha pud
- The holding of pre-trial conference is unta nga muhelp sa court nga masettle
mandatory. ang case.
 But as said, there are few
Under the present amendment, the notice of pre-trial lawyers nga mao pa hinuon ang
shall be sent by the clerk of court not later than 60 days mahimong obstacle for the
from the filing of the last responsive pleading. settlement of the case.
- Before amendment, it was duty of plaintiff’s - Amicable settlement or compromise agreement,
counsel to set pre-trial conference mao na ang win-win solution.
- Under the present amendment, as taken from o For example, plaintiff asked for 1M plus
AM 03-1-09-AC, it is now the clerk of court’s interest. It could be a win-win solution
duty to set the case for pre-trial that part of the compromise agreement
that the defendant would only pay it in
AM 03-1-09-AC installment basis.
- SC required the clerk of court to set the case for o In addition, pwede sad nga ireduce ang
pre-trial interest.
- The provision under the circular was adopted by  Kay naa man plaintiffs nga
the rules and amended Sec1 of Rule 18. dagko kaayog interest rate.
- However, even if it is now the work of the clerk  Maalkansi ka tinuod. For
of court to set case for pre-trial, it is still the duty example from your claim of 1M
of the plaintiff to see if the clerk has performed with interest, 1.5M. But because
its task under the rules. of the amicable settlement,
- There was one case wherein after the issuance of 1.2M. Although alkansi ug
this admin matter, wherein the clerk of court is 300k, just imagine what
mandated by the circular to set the case for pre- possible expenses he may have
trial, the clerk of court forgot to set the case for if he will push the case all the
pre-trial. The court dismissed the case on the way to the SC. That could be
ground that the plaintiff failed to have the case more than 300k.
set for Pre-Trial. Plaintiff questioned the order - If there is no compromise agreement, iterminate
of the court, arguing that it is no longer the duty dayon ang pre-trial?
of plaintiff to set the case for Pre-trial but it is of o No.
the clerk of court. o The possibility of a compromise
o BPI vs Sps Genuino agreement is just one of the topics/items
o SC: Despite issuance of the admin to be taken ug during pre-trial
matter, it is still the duty of the plaintiff conference
to promptly move to set his case for pre-
trial after the last pleading is filed and Other items to be taken up: (b) stipulation of facts.
served. - The admissions
o This provision still applies. Sec1 of Rule - There could be facts or factual allegations in the
18 is taken from this admin matter complaint or in the affirmative defenses of the
defendant that are denied, but during pre-trial,
What are the matters to be taken up during pre-trial? may have a change of mind.
Sec 2
108 | c a v e a t e m p t o r
 - Any admissions during pre-trial conference will
be considered as judicial admissions, and does
not anymore require the presentation of a
witness or evidence.
Also, during the pre-trial, there could also be (c)
comparison of the documents attached to the judicial
affidavits if what are attached to the judicial
affidavits are just mere photocopies.
- During pre-trial, the parties should bring the
original aron ma-compare sa adverse counsel.
He would be directed to manifest, to put it on
record, whether the machine copy or photocopy
or photocopies are faithful reproductions of the
original
During the pre-trial conference, (d) if there are witnesses
or pieces of evidence that are not yet available, they can
make reservations.
- But TN of the requirements for proper
reservations
o For testimonial evidence, by giving the
name or position and the nature of the
testimony of the proposed witness;
 Unsa man iyang istorya, unsa
may ngalan niya.
o For documentary it should be described
and determine what facts it is trying to
prove
 Idescribe unsa siya nga
document.
And such other matters that will help the court in the
prompt disposition of the case.
Also, (e) the number of witnesses.
- For example, plaintiff will say that they will
present 10 witnesses.
o Who are those witnesses?
o What facts are they going to testify?
o Kanang 10 wtinesses, pwede ra siguro
na mareduce into 2.
 If all of the 10 witnesses will
testify, just imagine how long it
will take time just to
accommodate the 10, and they
will just be repeating the
testimony of the first witness. It
will be a waste of time.
o If the tenor of the witnesses are the
same, ang tono sa ilang testimony, the
number, instead of 10, could be reduced
to perhaps 2.
- The same with that of the defendant.
Aslo, (f) possibility of referring the case to a
commissioner
- Such as a geodetic engineer. When case will
involve boundary dispute, the case may be
referred to a geodetic engineer for the immediate
disposition of the issue of w/n there is
encroachment on the part of the defendant.
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.
- It will result to a waiver of their right to object.
- But there is worse to that.
o Mentioned in S5R18:
- 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. (5a)
o Effect if plaintiff fails to appear during
pre-trial? Failure of plaintiff and his
counsel to attend in the pre-trial
conference despite notice will cause
dismissal of the case with prejudice.
 Costly kaayo, and fatal kaayo.
 Remember: If the rule says
dismissal with prejudice. Wala
gani gibutang sa order sa court
ang dismissal is without
prejudice, or gibutang ra gani
that the case is dismissed, the
109 | c a v e a t e m p t o r
 presumption is that the
dismissal is with prejudice.
 Wala gani gispecify, giingon ra
gani didto ―wherefore, for
failure for the plaintiff and his
counsel to appear, the case is
hereby ordered dismissed.‖
Walay sumpay kung with or
without prejudice. The
presumption is that the
dismissal is with prejudice.
 Effect? If the dismissal is with
prejudice, the case could no
longer be re-filed. It is as if that
the case has been dismissed
based on evidence, based on the
merits.
 If it would be re-filed, the
second case could be dismissed
based on res judicata.
o Suppose, it is the defendant and his
counsel who fails to appear. It is also
costly and fatal Because, if it is the
defendant and his counsel who fails to
appear, the plaintiff will be allowed to
present his evidence ex parte.
 This is equivalent to default.
Defendant will not be declared
in default because he was able
to file answer, but the effect will
similar to that of a defaulted
defendant because he could not
present evidence.
Aside from the dismissal of the case (if plaintiff and
counsel fails to appear) or allowing the plaintiff to
present evidence ex parte (if defendant and counsel fails
to appear), under Sec2:
- 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.
o So kinahanglan nga tanang evidence,
dalhon sa court during pre-trial.
o If wala pa namark, imark na siya didto.
Then there will be comparison of the
machine copies and the original
 The adverse party may inspect
those pieces of evidence.
Under the present amendment, the complaint must not
only allege ultimate facts.
- But, also evidentiary facts.
- Unya, the judicial affidavits and other
documents should already be attached.
o Under the Judicial Affidavit Rule, the
judicial affidavit isubmit 5 days before
the trial. Pero karon, dili na.
o The Judicial Affidavits of the witnesses
of the party should be attached to their
pleadings.
o The other ?? is that in the course of the
preparation of the judicial affidavits, ila
nanang markahan ilang exhibits. Ilang
mga documents markahan.
o Just in case there are still documents,
exhibits or object evidences not yet
marked, the same should be marked
during pre-trial conference.
Sec 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
o In the court, there is what is called as
Philippine Mediation Center. It is an
office that has trained mediators.
o After the pre-trial, if the parties are not
settled, there is another opportunity to
be settled. And that is the referral of the
case before the Philippine Mediation
Center for settlement.
 The referral in the PMC shall be
made before the trial.
o If there is still no settlement in the PMC,
the court may refer or subject the case to
JDR proceedings.
(c) Judicial Dispute Resolution, if necessary.
110 | c a v e a t e m p t o r
 o Here, it would be the judge who would
try to settle the party. It will be the judge
who will act as mediator.
o Before the amendment of the rules, the
judge to whom the case is raffled, for
example multiple sala courts (kanang
daghang branches), ang court nga
naghandle sa case maoy muconduct sa
JDR. If dili masettle, the case shall be
re-raffled, ipasa sa laing branch.
 Now, the case shall stay in the
court or branch where the case
is raffled.
 If the court, if the judge believes
that there is a chance for the
case to be settled, and there is a
need to refer or submit the case
for JDR, it will be passed to
another judge for JDR. If still no
settlement, ibalik sa iyaha.
What will happen if the parties will not appear during
the mediation or during the JDR?
- For example, it was referred for mediation
before PMC. Unya wala manunga.
- Remember, mediation proceedings or JDR are
still considered part of pre-trial. Under the
present amendment, non-appearance of the
parties or any of the parties during the
mediation or JDR shall warrant the dismissal
of the case (if it is the plaintiff who did not
appear), or the plaintiff shall be allowed to
present his evidence ex parte (if it is not the
defendant who did not appear)
o So, same effect if dili mutunga during
pre-trial.
Sec 4
Appearance of Parties
Under Sec 4, it shall be the duty of the parties and their
counsel to appear at the pre-trial, court-annexed
mediation, and judicial dispute resolution. Their non-
appearance shall only be excused for acts of God, force
majeure, or duly substantiated physical inability.
2nd par: (very important)
If ever a party cannot personally appear during pre-trial,
mediation or JDR, the party concerned who cannot
appear during pre-trial, mediation or JDR should execute
an Special Power of Attorney (SPA) authorizing
somebody to appear in the proceedings on his behalf
o SPA, meaning the powers should be
specific, and not merely general.
- And the SPA shall specifically mention that the
authorized party be authorized:
o to enter into amicable settlement or
o to submit to alternative modes of dispute
resolution, and
o to enter into stipulations or admissions
of facts and documents.
- This is important because if SPA does not
mention the 3, it would only be general power of
attorney. The effect is that the representative is
not deemed authorized.
o If the plaintiff, the case may be
dismissed just because he is not duly
represented.
 TN: Dismissal will be with
prejudice. Fatal.
Sec 5
Effect of Failure to Appear
- About effect of failure to appear of plaintiff or
defendant
- As discussed, it would be fatal
- It will be costly to the plaintiff if he and his
counsel fail to appear without valid cause
o It will be dismissed with prejudice,
unless the court will order otherwise.
 If wala gani gibutang the
dismissal is without prejudice, it
is deemed (presumed) that the
dismissal is with prejudice.
 This is the same w R17Sec3
Suppose it is plaintiff who is present, but counsel is
absent. Should the case be dismissed?
- No.
- The rules says ―and‖
- This provision is based on the ruling of the SC
in the case of Paredes vs Verano (Oct 12, 2006)
o If plaintiff ra ang nitunga, wala ang
counsel, the case cannot be dismissed.
The same with defendant.
- It should be defendant and counsel
111 | c a v e a t e m p t o r
Sec 6
Pre-trial Brief
This is another very important section.
- This is about the submission of pre-trial brief.
The parties are required to submit their respective pre-
trial briefs before the court. And the pre-trial briefs must
be received by the adverse party 3 days before the pre-
trial.
- Receive. Dili kay mao pa’y i-mail.
- If you send it through registered mail, it should
be mailed long before the pre-trial to ensure that
it would be received by the adverse party at least
3 days.
- So in our situation, it should be made at least 1
month before pre-trial, imo nanang gipadala.
Para madawat pana sa pikas at least 3 days. Dili
kay 3-days before, mao pa’y i-mail. Kay inig
dawat anas pikas, initial trial na.
Contents? See sec 6
- Brief statement of the case, plaintiff’s claim and
defendants claim
- Summary of facts submitted
o Tan’awn ang complaint, and ang
answer. Unsa nga facts ang giadmit
- Issue/s to be resolved
o What are these? It could be factual or
legal issues
 Factual issues – facts which are
to be controverted; facts nga
wala giadmit sa answer; these
are material or important
allegations that the opposing
party did not admit.
 For example, it was
alleged in P3 that the
defendant has obtained
a loan of 1m. In the
answer, it was
specifically denied. So
that will now be one of
the factual issues. W/N
the defendant has
obtained a loan.
 Allegations that are
admitted will no longer
be considered issues.
- Names of the witnesses
Last par of Sec 6: (very important!)
What will happen if a party fails to submit a pre-trial
brief?
- Very fatal.
- Failure to file the pre-trial brief shall have the
same effect as failure to appear during the pre-
trial itself.
o Even if niattend ka sa Pre-trial pero wala
ka nisubmit ug Pre-trial brief, the effect
will be the same. Maypag wala nalang
ka nitunga.
 If you are plaintiff, failure of
your counsel to submit pre-trial
brief, case will be dismissed
 If you are defendant, failure of
your counsel to submit pre-trial
brief, plaintiff may present
evidence ex parte.
Quick words of wisdom: Remember, when we file a case
or when we defend a case (duha raman imong paingnan
unya. Abogado sa kehante, or abogado sa gikiha). Bisag
unsa paka ka maayong laki, dili assurance nga mudaog
ka sa case, bisag unsa pa kalig-on sa evidence. But
always remember, mapildi man kon mapildi, basta dili
lang technical. Bahala nag mapildi, basta matiwas jud.
- Bahalag pildi basta di lang madismiss tungod
lang wala ka nakasubmit ug pre-trial brief or wa
ka katunga during PT con, or during mediation
or jdr.
- Bahalag pildi basta dili default.
- TN: Negligence of counsel binds a client.
o Kung magdinanghag ka, di na excuse
nga nakalimot ka naay pre-trial
conference.
o If you are counsel for plaintiff,
nadismiss kay wala kafile ug pre-trial
brief, sunod ana filean kag disbarment
case.
Sec 7
Pre-Trial Order
This about the issuance of pre-trial order.
- After pre-trial conference, the court is required
to issue a pre-trial order.
112 | c a v e a t e m p t o r
- In the pre-trial order, the court will have to
mention what transpired – what are the matters
taken up during pre-trial.
o Such as, whether or not there was a
compromise agreement.
o If there was none, what are the facts
stipulated kung naa man.
o What are the evidence or exhibits
marked
o The issues to be resolved
 If muingon ug trial, presentation
of evidence.
o During presentation of evidence, the
parties are not allowed to present
evidence to prove an issue not stated in
the pre-trial order.
o In the pre-trial order, it will be stated
which issues should be resolved. Kay
kanang mga factual issus nga gistate
diha are the only issues nga kiahanglan
nga mupresent ug evidence ang parties
to prove their respective claims and
differences.
o For example collection of sum of
money. Kung gideny sa defendant nga
nakautang siya, one of the factual issues
would be w/n the defendant has
obtained a loan.
 So, during the trial for the
plaintiff, iyang claim is that the
defendant has obtained a loan.
So he should present evidence
to prove that issue.
 On the part of the defendant, he
would also present evidence to
prove that he has not obtained
any loan.
 If plaintiff presents evidence
that would prove an issue not
defined, stated or taken up in the
pre-trial, that is not allowed.
That would be objectionable for
being irrelevant.
- The evidence marked
- The dates.
o During pre-trial, sabotan na daan kung
unsa mga petsaha nga mupresent ug
evidence ang plaintiff.
 If you have read R30 S1,
plaintiff should finish present
his evidence within 90 days.
 Pero dili ni pasabot
kadaadlaw maghearing.
It would be impossible.
Tingale, within 90 days,
in a month, kaduha or
kausa depende sa
number sa witnesses.
 On the part of the defendant, he
also has 90 days to present his
evidence.
o Sabotan nani daan during pre-trial.
Why? Lawyers are very busy.
Especially kanang lawyers nga daghan
ug kaso.
- 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
o One-day examination witness rule:
 Meaning, the testimony of the
witness should be finished in
one setting.
 But in the actual setting, lisod
mahitabo. Sagad ana, daghan ug
cases nga iset in a day.
 Kung iterminate ang testimony
sa witness, necessarily naay
direct, cross examination, naay
re-direct.
 Usahay taas kaayo ug cross ang
pikas counsel, so naay
continuance of examination.
 But, as much as possible, under
the present rule, the examination
of the witness should be
terminated just in one setting.
o Most important witness rule:
 The most important witness
must be presented first.
Postponement is prohibited except when it is based on
acts of God, force majure, or duly substantiated physical
inability of witness to appear and testify
- For example, witness asakit ug covid. That
would be a justifiable reason to ask for
postponement.
113 | c a v e a t e m p t o r
 - Or if example ang counsel ang nasakit.
Should the opposing party fail to appear without valid
cause, 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.
- Non-appearance will not cause postponement of
trial.
o Trial will proceed, and party whose
counsel is absent will be considered to
have waived his right to cross-examine
the witness.
The contents of the pre-trial order shall control the
conduct of the trial
Sec 8
Court-Annexed Mediation
After pre-trial and, after issues are joined, the court shall
refer the parties for mandatory court-annexed mediation.
The period for court-annexed mediation shall not exceed
thirty (30) calendar days without further extension. (n)
- The case shall be referred to mediation after
conduct of Pre-trial conference
- Before amendment, mediation first then pre-
trial. Now, Pre-trial first, then mediation, then
JDR if necessary.
o JDR is no longer mandatory. It is only
discretionary.
Under last paragraph, mediation should not last longer
than 30 days.
Sec 9
Judicial Dispute Resoltion
The conduct of the JDR under present amendment is
already discretionary on the part of the judge.
- If court believes that here is still possibility to
settle, the case will be referred to JDR, but it
will be another judge who will conduct the JDR
- If JDR is not successful, case shall be referred
back to the court or branch where it came from
JDR shall be conducted within a non-extendible period
of fifteen (15) calendar days from notice of failure of the
court-annexed mediation.
All proceedings during the court-annexed mediation
and the judicial dispute resolution shall be
confidential
- Whatever negotiations or admissions made
during the JDR cannot be used in evidence
during the trial of the case.
Sec 10
Judgment after Pre-Trial
- This is new.
Should there be no more controverted facts, or no more
genuine issue as to any material fact, or an absence of
any issue, or should the answer fail to tender an issue,
the court shall, without prejudice to a party moving for
judgment on the pleadings under Rule 34 or summary
judgment under Rule 35, motu proprio include in the
pre-trial order that the case be submitted for
summary judgment or judgment on the pleadings,
without need of position papers or memoranda.
- So, during pre-trial, the disputed facts or those
facts which are denied in the answer are
admitted by the defendant, then the case would
now be subjected to judgment on the pleadings.
o Kung wala najuy issue.
- Kung pananglitan, tanan allegation sa complaint
kay giadmit sa answer, unsa pamay hearingon
ana? Unsa pamay iprove ana?
o Wala nay iprove.
o Judgment on the pleadings. The case
now may be submitted to judgment on
the pleadings, based only on the
complaint and answer.
- If there are issues, but not considered genuine or
are minor.
o For example, interests only kung
excessive or dili, or damages.
o Here, although there are other issues to
be resolved, these are not material or
genuine.
 Example, reckless imprudence
resulting to physical injuries.
For example, the defendant
admitted that he ran over the
plaintiff. But he argued that
amount of evidence asked by
plaintiff is excessive. So the
114 | c a v e a t e m p t o r
 only issue is only the amt. of
damages.
 It could be established
by receipts, through
affidavits.
 Summary judgment.
 TN: Lahi ang judgment
on the pleadings, lahi
ang summary judgment.
 If mahitabo ni during pre-trial,
wala nay issues nga iresolve, all
the facts are admitted, or there is
no more genuine issue because
the issue is only as regards to
the amount of damages for
example, or the amount of
interest, then the case not is
ready for summary judgment.
 The court may, motu
proprio, include them in
the pre-trial order.
Before, dili pwede nga motu proprio nga musubmit ang
court nga submitted ang decision based on the pleadings.
But now, under Sec 10. The court may motu
proprio include in the pre-trial order that the case be
submitted for summary judgment or judgment on the
pleadings.
The order of the court to submit the case for judgment
pursuant to this Rule shall not be the subject to appeal
or certiorari.
- Unsa ramay pwede iappeal?
- Kadto nang inig issue na sa decision. Mao to ang
iappeal.
o Kung pananglitan, ang adverse party
muobject sa submission sa case for
judgment on the pleadings or summary
judgment, he should raise it as one of
the issues in his appeal.
RULE 19
Intervention
Do you remember third party complaint?
- In TPC, the defendant files a motion for leave in
order to implead in the case a stranger.
o Naay party in the case (insider) nga
birahon ang taga-gawas aron makaapil
sa karambola kay ang iyang claim, if
siyay pabayron, then this stranger
should be required to reimburse him to
whatever amount he will claim.
- In intervention, this is different.
o Outsider ni siya, pero siya mismo gusto
muapil.
Before he is allowed to intervene, he should file a
motion to intervene.
- When? (S2R19)
- It should be filed any time before a judgment
is rendered.
o If a judgment has already been rendered,
motion for intervention is no longer
allowed
- 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. (Sec2 R19)
Sec 1
Who May intervene
Who may intervene? (S1R19)
- He must have an interest in the outcome of
the case.
o Dili pwede nang usosero.
o Under sec1, a person who will be
allowed to intervene is a person who has
a legal interest in the outcome of the
case.
o Example. Administration proceedings.
 If the administrator or executor
will not perform his duties, the
heirs may intervene, because
they are interested in the state.
They have legal interest in the
subject in litigation
o Clue: he must have legal interest in the
subject matter in litigation.
- And he must have legal interest in the success
of either party.
o For example, in a case, the plaintiff filed
a case against the surety. The defendant
(principal debtor) may intervene and
unite with the surety to resist the claim
of the plaintiff
115 | c a v e a t e m p t o r
  Kay if maliable ang surety, ang
surety mugukod man na sa
defendant.
- Or he has legal interest against both parties.
o He is an outsider but he has legal
interest against both parties.
o For example imong igsuon gibaligya
iyang sakyanan nimo. Wa diay ka
kahibalo nga imong igsuon, naa nay
case for collection of money. When the
court issued a writ of replevin, nangita
na sa properties sa imong igsuon. Pag-
adto sa LTO, one of the properties nga
naa didto, ang auto niya. Wa kahibaw
ang court nga gibaligya na diay. Car was
subjected to a provisional writ of
replevin. Gidala sa court, gicustody.
 Unsay buhaton nimo aron dili
maadto sa plaintiff if
makadaog? Unsay buhaton
nimo to prove nga gibaligya
nato sa imoha ang auto? You
have to file a motion to
intervene, and if allowed, you
have to present ?? signed by
your sibling to establish that the
car has been sold to you.
Another example of intervention:
- For example, P filed a case against D for
recovery of ownership and possession over a
parcel of land. O likewise claims that he is the
owner of such property. Niingon nga ―wa
ninyong duha ang tag-iya. Ako ang tinud-anay
nga tag-iya anang yuta.‖ Unsay buhaton aron
maapil siya sa case? Kay basin unyag iaward sa
court sa plaintiff, or si D ang madeclare nga
owner.
o So, O may file a motion to intervene so
that his interest would also be included
in the litigation.
TN: Intervention is not a matter of right. See Sec1
last sentence:
- 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.
- It is not a matter of right, but it is a matter of
discretion on the part of the court.
- Rationale of allowing intervention? Same with
the rule of filing third-party complaint. To avoid
multiplicity of suits.
What is the remedy of the movant who wants to
intervene but his motion for intervention is denied by the
court?
- Remedy is to file appeal.
o Same sa denial of a motion to file third-
party complaint.
- See: Ortiz vs Trent (13 PHIL 130)
- Another remedy: filing of a separate civil
action.
Suppose it was improperly granted, what is the remedy
of the plaintiff?
- Remedy could be petition for certiorari on the
ground of grave abuse of discretion
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.
- Complaint-in-intervention
o Claim against either or all of the original
parties, such as the defendant
- Answer-in-intervention
o If he unites with a defending party to
resist the claim against the defendant
Sec 4
Answer to Complaint-in-intervention
Whenever a complaint in intervention is filed, the
adverse party has 15 days to file an answer to the
complaint-in-intervention.
So remember right time to file a motion for intervention
and who can file.
116 | c a v e a t e m p t o r
 .RULE 20
Calendar of Cases
- matter of reading
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)
SECTION 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)
RULE 21
Subpoena
Subpoena
- This is a compulsory process to be issued by the
court against a person who is required to testify.
o So kung naa kay hangyoon pagtestify,
unya dili siya willing mutestify, pwede
na nimo mapugos pagpatestify by asking
thecourt to issue a subpoena ad
testificandum.
o If a witness is required to bring certain
documents as evidence which are in his
position. You ask for the issuance of
subpoena duces tecum.
There are two types of Subpoena:
1. Subpoena ad testificandum
o To require a witness to testify
2. Subpoena duces tecum
o To require a witness to bring documents
or objects
Who can issue a subpoena? (s2r21)
- Usually, subpoena is issued by the court where
the case is pending. Or:
o (a) The court before whom the witness
is required to attend;
o (b) The court of the place where the
deposition is to be taken;
o (c) The officer or body authorized by
law to do so in connection with
investigations conducted by said officer
or body; or
 Example? Prosecutor’s office.
NBI.
 Recently, there is a law giving
the PNP Chief to issue a
subpoena.
o (d) Any Justice of the Supreme Court
or the Court of Appeals in any case or
investigation pending within the
Philippines.
When an application for a subpoena to a prisoner is
made, the judge or officer shall examine and study
carefully such application to determine whether the same
is made for a valid purpose. (s2r21)
- Lisod baya kaayo nang magpagawas ka ug
prisoner. It is risky. That is why if a subpoena is
issued against a prisoner, it should be based on
meritorious grounds.
If a person against whom the subpoena is issued is a
prisoner sentenced to death, reclusion perpetua or life
imprisonment and who is confined in any penal -
institution shall be brought outside the penal institution
for appearance or attendance in any court unless
authorized by the Supreme Court (s2r21)
- The appearance of the prisoner shall not be
allowed unless authorized by the SC.
Sec 3
Forms and contents of subpoena
- Just read
A subpoena shall state the name of the court and the title
of the action or investigation, shall be directed to the
person whose attendance is required, and in the case of a
subpoena duces tecum, it shall also contain a reasonable
description of the books, documents or things demanded
which must appear to the court prima facie relevant.
Sec 4
Quashing a Subpoena
- A subpoena may be set aside or quashed.
117 | c a v e a t e m p t o r
 - On what ground? It can be set aside or
quashed:
o if it is unreasonable and oppressive
 For example, mag-hasol2 ra.
o if the documents in the case are
irrelevant, unreasonable and
oppressive
o person in whose behalf the subpoena
is issued fails to advance the
reasonable cost of the production
 Pananglitan, nangayo siya ug
copy sa documents unya
kinahanglan pa iprint.Unya wala
siya niadvance ug para gasto sa
print. So, the subpoena could be
quashed.
Under last par, subpoena could be quashed if the witness
required to appear before the court or if the person
against whom the subpoena is issued is residing more
than 100km away from the place or from the court where
he is required to appear. This is what we call as Viatory
Right of a Witness
- Viatory Right of a Witness
o The right to refuse to obey a subpoena
when witness is residing more than
100km away from the court.
Sec 5
Subpoena for Depositions
- Subpoena could also be issued for taking of
deposition.
Sec 6
Service
How shall a subpoena be served?
- A subpoena may be served through personal
service or substituted service, just like personal
or substituted service of summons.
Sec 7
Personal Appearance in Court
- A person present in court does not require
subpoena.
o He may be required to testify, and there
is no need to be issued a subpoena
Sec 8
Compelling Attendance
Suppose a person against whom a subpoena is issued
failed to appear. Is there any consequence?
- If a person against whom subpoena is issued
fails to appear, a bench warrant shall be issued.
- Ang atong mahinumdoman, ang issuehan ug
warrant of arrest, kana rang accused. But no.
Issuance of warrant of arrest is not exclusive to
an accused.
o A warrant of arrest may be issued to a
witness against whom a subpoena is
issued who fails to appear
 Sec 8 In case of failure of a
witness to attend, the court or
judge issuing the subpoena,
upon proof of the service
thereof and of the failure of the
witness, may issue a warrant
to the sheriff of the province, or
his or her deputy, to arrest the
witness and bring him or
her before the court or officer
where his or her attendance is
required.
o This is hard because he can be placed
under detention indefinitely hantod
musugot siya mutestify. (s9)
- Aside from the issuance of warrant of arrest, he
could also be cited for contempt of court. This is
what we call indirect contempt of court.
o Sec 9. Contempt. Failure by any person
without adequate cause to obey a
subpoena served upon him or her shall
be deemed a contempt of the court from
which the subpoena is issued. If the
subpoena was not issued by a court, the
disobedience thereto shall be punished
in accordance with the applicable law or
Rule.
S10
Exception
This is what we call Viatory Right
- The provisions of Sections 8 and 9 of this Rule
shall not apply to a witness who resides more
118 | c a v e a t e m p t o r
 than one hundred (100) kilometers from his or
her residence to the place where he or she is to
testify by the ordinary course of travel, or to a
detention prisoner if no permission of the court
in which his or her case is pending was obtained
RULE 22
Computation of Time
- Reading matter.
- Naa ni sa Civil Code
- Rule: Exclude the first, include the last.
DIFFERENT MODES OF DISCOVERY
- Be sure to remember all the modes, and be
sure to remember how to avail each mode
Question: Kinsa man ang pwede kuhaan ug deposition?
DIFFERENT MODES OF DISCOVERY:
Deposition
1. Deposition Pending Action
2. Deposition Before Action or Pending Appeal
3. Interrogatories to Parties
4. Request for Admission
5. Motion for Production or Inspection of
Documents, Etc.
6. Request for Physical or Mental Examination
Nganung kwaan man siya ug testimony?
DEPOSITION is one of the modes of discovery.
Classifications:
1. Deposition upon oral examinations and
deposition upon written interrogatories
2. Deposition pending action and deposition before
action or pending appeal.
o Deposition pending action is otherwise
known as deposotion de bene esse
o Deposition before action is otherwise
known in perpetuam rei memoriam
So Let’s start with Deposition pending action.
RULE 23
DEPOSITION PENDING ACTION
Sec 1
Deposition Pending Action, When May be Taken
How to avail of this mode of discovery?
- Under Sec 1, the party who wants to avail must
file an ex parte motion to avail of this mode of
discovery
- It says that: Upon ex parte motion of a party, the
testimony of any person, whether a party or not,
may be taken by deposition upon oral
examination or written interrogatories.
o TN: Any person
- The attendance of witnesses may be compelled
by the use of a subpoena as provided in Rule 21.
o Pwede magamit ang subpoena to compel
a person for the taking of his deposition.
- Depositions shall be taken only in accordance
with these Rules. The deposition of a person
confined in prison may be taken only by leave of
court on such terms as the court prescribes.
- Refers to the advance taking of a testimony of a
witness who is a prospective witness in a certain
case.
- Kani siya, parehos rajud ni siya ug trial. Parehos
ug taking of testimony in open court. But, here,
the testimony of the witness is taken in advance.
- It’s because it could be that he can’t make it
during the trial.
- For example, naa kay case ifile. Mufile ka ug
collection of sum of money. Nya naa kay
important nga witness nga himatyon.
o If your witness who is a vital witness is
diagnosed with cancer, and there is a
danger that he could not make it during
trial.
o Kung mamatay siya, nya vital witness
siya. Unsa may mahimo sa imong case
kung pananglitan ang imong case
nagdepend sa iyang testimony?
o Mao na nga kwaan ni siya ug
pamahayag. Ang written testimony nga
iyang himoon, mao ni ang gitawag ug
deposition.
- If ang witness ikaw mismo, pwede ba nga
mutestify ka for yourself? Yes.
o Kung pananglitan, ang wtiness nga
kinahanglan mutestify ikaw na. Pwede
119 | c a v e a t e m p t o r
 ba magpakuha ka daan sa imong
testimony or statement kay basin din aka
kaabot sa trial kay naa kay sakit? Yes.
- Sec 1 R23 says that upon ex parte motion, the
testimony of any person, whether a party or not,
may be taken by deposition upon oral
examination or written interrogatories.
o Oral examination?
 Same sa court.
 Ang mga pangutana ipaagi ug
q&a?
 But of course, the questions, as
well as the answers, are
recorded.
o Written interrogatories
 Here, the questions are written,
and the answers are also in
writing.
- It could be taken if there is already a pending
case, but there is no trial yet, or it can be taken
even before the filing of any case (R24 –
deposition before action)
There should be an ex parte motion of the ?? party.
Leave of court is required.
Question: Naa ba sad cross-examination? Masubject ba
sad ug cross examination?
- Kay in court, there is cross examination.
- For depositions, there could also be cross-
examination.
- For example. The party, P, filed a motion for the
taking of deposition of W. W, during taking of
deposition, will be subjected to direct
examination. After, the adverse party may
conduct cross-examination.
o It is the same in court.
o The only difference is that the testimony
is taken in advance and outside the
court.
Again, the deposition to be taken could be that by the
party himself.
- For example, P. He believes that he could not
make it during the trial and his testimony is
important. He may ask in an ex parte motion for
the taking of a deposition for his own testimony.
- See case: Santamaria vs Cleary (G.R. No.
197122, June 15, 2016)
Two Ways of Taking Deposition:
1. Oral deposition
2. Written interrogatories
- Usually, ang sagad gamiton is the deposition
upon oral examinatoin. It is similar to the taking
of deposition in open court.
What is the addvantage of taking deposition or availing
of other modes?
- Trial judges should encourage the use of the
different modes of discovery because the
knowledge of the evidence of the adverse party
may facilitate an amicable settlement or expedite
the trial of a case.
- But availment of the different modes of
discovery is not mandatory (Co vs IAC, Sept23,
1996)
At what stage of the proceedings that deposition of a
witness be taken?
- Could be taken:
o Before pre-trial
o During pre-trial
o After pre-trial
- Pajarillaga vs CA (Oct 21, 2008)
Usually, deposition is taken before trial because it is a
mode of discovery.
- Kaning mode of discovery mura ni siyag fishing
expedition. Imong tan-awon unsay evidence sa
pikas. Deposition can be a mode of discovery
before trial. That’s why a deposition is done
before trial.
- However, according to SC, it may also be taken
after trial has commenced. And it may be used
without the deponent being actually called to the
witness stand.
o In other words, the taking of the
witnesses’ testimonies through
deposition in lieu of the actual presence
in trial may be allowed.
If a party wants to take deposition of a person, it is not
automatic that you will make him a witness.
- But of course, pwede nga himuon nga witness.
120 | c a v e a t e m p t o r
If that person whose deposition has been taken is
available during trial, he should testify.
- His deposition cannot be used in lieu of his open
court testimony kung present siya during trial.
- Deposition may only be used during trial as a
substitute to his open court testimony if witness
is not available.
Again, deposition can be a mode of discovery before
trial. However, it may also be taken even after trial has
commenced and may be used without the deponent
being actually called to the witness stand.
- In other words, the taking of the testimony of the
witnesses in lieu of actual presence in court may
be allowed.
Basin magtuo pud mo nga kana rang masakiton ang
pwede ra kuhaan ug deposition.
- A deposition could also be taken upon a person
who is scheduled to go to abroad and there is no
definite date of return.
o Walay klaro kung kanus-a siya kabalik.
o There is a possibility that he could not
make it during the trial.
 But if during the trial, he is
available, then he should testify.
 If he will not testify, then
compulsory process could be
availed of by the party
concerned.
As regards the taking of deposition, utmost freedom is
allowed.
- Look at S1.
- Under sec 1, the testimony of any person,
whether a party or not, may be taken by
deposition upon oral examination or written
interrogatories at the instance of any parties.
o Sa ato pa, bisag kinsang tawhana.
o The right to take statements and to use
them in court are entirely distinct.
No limitation ang pagtake sa statement. Ang naay
limitation kay ang pag gamit
- Because at what we have said, deposition could
only be used if the witness is not available to
testify.
- SC: Utmost freedom is accorded in using
depositions. Restrictions are imposed upon their
use.
o There is accorded the widest opportunity
for knowledge of both parties of all the
facts before the trial
o Sta. Maria vs Cleary (June 15, 2016)
TN: Deposition is only applicable to civil cases. For
criminal cases, naay equivalent ani under R119 Sec 12,
13 and 15. This is called ―Conditional Examinations.‖
- So deposition is only applicable to civil cases
o This is according to SC in Manggira vs
Resus (Aug 28, 2008) and PP vs Go
(677 SCRA 213)
Sec 2
Scope of Examination
- The deponent may be examined regarding any
matter provided it is not privileged
- Any matter relevant to the case, whether relating
to the claim or defense.
- The only limitations are:
o Privileged matter
o Prohibited matter.
Sec 3
Examination and Cross-Examination
Under Sec 3, in the taking of deposition, there is direct
examination and cross-examination just like during the
trial.
Sec 4
Use of Depositions.
(a) Any deposition may be used by any party for the
purpose of contradicting or impeaching the testimony
of the deponent as a witness;
- As what we have said earlier, if the witness is
available during trial, he should testify.
- Unsa may gamit sa iyang deposition kung
mutestify siya?
o The deposition of the witness cannot be
used in lieu of his testimony.
 Di pwede gamiton as substitute.
o He should testify again in open court.
121 | c a v e a t e m p t o r
 o However, considering that when the
deposition was taken, he was under
oath, the deposition of the witness could
be used to impeach his own testimony
given in court.
o His deposition could be used to impeach
his own testimony if the same is
inconsistent with his deposition
- ―Impeach,‖ meaning discredit his testimony in
court.
(b) The deposition of a party or of any one who at the
time of taking the deposition was an officer, director,
or managing agent of a public or private corporation,
partnership, or association which is a party may be
used by an adverse party for any purpose;
- However, the deposition of the adverse party,
not only that in can be used to impeach his own
testimony, the adverse party could also use it as
his own evidence.
(c) The deposition of a witness, whether or not a
party, may be used by any party for any purpose if
the court finds:
- Tells us of instances that depositions could be
used in lieu of the open-court testimony.
- What are these instances that the testimony of
witnesses can be used in lieu of his testimony?
o (1) that the witness is dead; or
 Kung patay na ang witness, he
could no longer testify
o (2) that the witness resides at a
distance more than one hundred (100)
kilometers from the place of trial or
hearing, or is out of the Philippines,
unless it appears that his or
her absence was procured by the
party offering the deposition; or
 Remember the viatory rights of
a witness.
 He cannot be compelled
to appear in court when
he is more than 100km
away from the place
where the court is
located
 Or witness is out of the
Philippines
 Pananglitan, naa kay
witness nga tua gawas
sa nasod. Pwede ba siya
nimo mahimong
testigo? Yes.
 How? Papaulion nimo
diri? Imo siyang
pletehan? How should
his testimony be taken?
 His testimony could be
taken through
deposition. If ever upon
oral examination or
written interrogatories.
 And considering that he
is abroad, his deposition
could be used in lieu of
his open court
testimony.
 Suppose, nagsugod na ang trial.
Unya mao nala’y mahibaw-an
nimo nga imong witness tua na
nilarga nas abroad sa dihang
imo siyang gipasubpoenahan.
Pwede pa ba siya makatestify?
How?
 Yes, through the taking
of deposition.
o (3) that the witness is unable to attend
or testify because of age, sickness,
infirmity, or imprisonment; or
o (4) that the party offering the
deposition has been unable to procure
the attendance of the witness by
subpoena; or
 Subpoenahan pero wala jud
nitunga. His deposition could be
used in lieu of the open-court
testimony.
 TN of this.
o (5) upon application and notice, that
such exceptional circumstances exist
122 | c a v e a t e m p t o r
 as to make it desirable, in the interest
of justice and with due regard to the
importance of presenting the
testimony of witnesses orally in open
court, to allow the deposition to be
used;
- Again, if the deponent is available to testify
during the trial, his deposition could not be used
in lieu of his open court testimony, but it can be
used to impeach his testimony.
- If it is offered in lieu of the actual testimony of
the witness, it can be objected for being hearsay.
o That is the ruling of the SC in the case
of Ruiz vs Rojas (Mar 3, 2008)
(d) If only part of a deposition is offered in evidence
by a party, the adverse party may require him or
her to introduce all of it which is relevant to the part
introduced, and any party may introduce any other
parts
Question: : Is it necessary that the party who caused the
taking of the deposition of a witness should use the
deposition as his evidence?
- No
- The taking of deposition is only a mode of
discovery.
- If deposition of a witness is taken, it does not
necessarily mean that only the party who caused
the taking of the deposition of the witness could
use the testimony of such witness.
- Any party may use the testimony of the
deponent as his testimonial evidence if the
witness is not available during trial
o Dili necessary nga kadtong party nga
nagpagkuha sa deposition mao rapud
ang pwede nga mugamit ana nga
evidence or testimonial evidence.
If the deponent is a party, pwede ba nga ang imohang
kontra himuon nimong witness?
- For example, you are P. Imong gikiha si D.
Pwede ba nga si D himuon nimong witness?
Yes.
- Pwede ba ang defendant, tua sa gawas sa nasod.
Pwede ba nga kwaan nimo siyag deposition?
Yes.
- Even if he is in the Philippines, bisag present
siya, pwede ba nga kwaan nimo siyag
depositon? Yes.
Earlier, we learned that if a witness is available, his
deposition cannot be used as a testimony in open court,
but it can be used to impeach a testimony.
- However, if the deponent is the adverse party,
the deposition can be considered as the evidence
of the party taking the deposition.
o Kung ang witness nga gikuhaan ug
deposition is ang adverse party, ang
iyahang deposition pwede magamit nga
testimonial evidence of such party, and
not only for the purpose impeaching his
testimony.
o Mas dako siyag gamit kaysa sa
deposition sa ordinary witness.
 Because the deposition of an
ordinary witness could only be
used to impeach his testimony.
But the testimony of the adverse
party could be used as his
testimony in open court.
 This is under (b)
Sec 5
Effects of Substitution of Parties
The deposition could still be used even if there is
substitution of parties and even if the case is dismissed
but later on re-filed.
Sec 6
Objections to Admissibility
Any objection may be made during the taking of the
deposition, provided such objection must be raised
during the taking of the deposition itself.
- Kung naay objections regarding the
admissibility of the testimony of the witness, for
example the testimony of the witness is hearsay,
any objection thereto should be raised during the
actual taking of the deposition.
o However, the deposition officer cannot
rule on the objection. But here would
merely note the same
123 | c a v e a t e m p t o r
Sec 7
Effect of Taking Depositions
A party who caused the taking of the deposition of the
witness is not obliged to adapt the deposition as his
testimonial evidence.
But, if ever he would introduce the deposition of a
witness as his evidence, if he would use the deposition,
the deponent is considered as his wtiness. (Sec 8, effect
of using deposition)
Sec 10
Persons before Whom Depositions May be Taken
within the Philippines
Before whom shall deposition be taken? Kinsa may
pwede mutake sa deposition?
- Under sec10, deposition may be taken before
any judge, notary public, or any person allowed
by law to administer oath.
- For example, a case is pending before RTC and
the witness is in the province, pwede ra ang
deposition will be taken before any judge or
notary public or any person allowed to
administer oath.
- But, usually, the taking of deposition shall be
done before a notary public.
- So ang witness, muatubang sa notary public, naa
pd didto ang duha ka-parties, together with their
lawyers.
o The deposition officer mao nay magsilbi
as judge
o The examination shall be done before
the deposition officer
Sec 11
Persons before Whom Deposistions May be Taken in
Foreign Countries
What if the witness is abroad? Kung tua siya sa gawas?
Before whom shall the deposition be taken?
- Usually, if the witness is in a foreign country,
the deposition shall be taken before any
Philippine embassy or consular office (Sec11)
- Under Sec 11, in a foreign state or country,
depositions may be taken
o (a) on notice before a secretary of
embassy or legation, consul general,
consul, vice-consul, or consular agent of
the Republic of the Philippines;
o (b) before such person or officer as may
be appointed by commission or under
letters rogatory;
 This is kung walay consular
office in that place
o or (c) the person referred to in Section
14 hereof
Sec 12
Commission or Letters Rogatory
- Under Sec12, a commission or letters rogatory
shall be issued only when necessary or
convenient, upon application and notice, and on
such terms and with such direction as are just
and appropriate.
What do you mean by letters rogatory?
- These are addressed to a judicial authority in a
foreign country, and the taking of depositions is
subject to the rules laid by such judicial
authority.
o Atong nahisgutan nga ang taking sa
depositon if naa sa gawas sa nasod ang
witness, usually it is done in the
consular office or Ph embassy. Just in
case there is no consular office or Ph
embassy, another way of taking
depositions is through letters rogatory.
- Letters rogatory are letters addressed to a
judicial authority in that foreign country asking
that court to take the deposition of the witness.
o Mura tag manghangyo didto sa ilang
court.
Unsa ma’y baws ani? The request addressed to a foreign
judicial authority shall be coupled with a promise to
return the favor
- Naa’y saad nga kung sila pud ang muhangyo,
ikaw nga requesting party, di pud ka mubalibad.
The issuance of letters rogatory is resorted to when there
is difficulty in obtaining a deposition by commission
(kadtong taking of deposition before the consular office).
Sec 13
Disqualification by Interest
124 | c a v e a t e m p t o r

This section talks about disqualification of a deposition
officer by reason of conflict of interest such has being a
relative within the sixth degree of consanguinity or
affinity, or employee or counsel of any of the parties; or
who is a relative within the same degree, or employee of
such counsel; or who is financially interested in the
action.
Sec 14
Stipulations Regarding Taking of Depositions
As what we have said earlier, depositions may be taken
before a judge or a notary public.
- But if the parties so stipulate in writing,
depositions may be taken before any person
authorized to administer oaths, at any time or
place, in accordance with these Rules, and when
so taken may be used like other depositions.
Kinsa man ning mga tawhana nga bisag dili abogado,
allowed to adminster oaths?
- Brgy Captain
- Mayor (even if not lawyer)
Any person who could administer oath, if the parties
would agree, may become a deposition officer.
Sec 15
Deposition upon Oral Examinations; Notice; Time
and Place
So a party desiring to take the deposition of any person
upon oral examination shall give reasonable notice in
writing to every other party to the action.
The date, the place, of the taking of the deposition, as
well as the person to be examined shall be stated in the
notice.
So again, sec 15 is about the giving of notice as to the
date and time on the taking of the deposition of oral
examination to the adverse party.
- Nganung tagaan man siyag notice?
o So that he can appear and conduct his
cross-examination.
Sec 16
Orders for the Protection of Parties and Deponents
These are the limitations on the taking of the depositon.
What are these limitations?
- After notice is served for taking a deposition by
oral examination, upon motion seasonably made
by any party or by the person to be examined
and for good cause shown, the court in which
the action is pending may make the
following orders: (possible limitations on the
taking of depositions)
- (a) That the deposition shall not be taken;
o Possible nga dili idayon ang taking of
the deposition because of certain valid
grounds
o For example, the testimony of the
witness is irrelevant
- (b) That the deposition may be taken only at
some designated place other than that stated
in the notice;
- (c) That the deposition may be taken only on
written interrogatories;
- (d) That certain matters shall not be inquired
into;
- (e) That the scope of the examination shall be
held with no one present except the parties to
the action and their officers or counsel;
- (f) That after being sealed the deposition shall
be opened only by order of the court;
- (g) That secret processes, developments, or
research need not be disclosed; or
- (h) That the parties shall simultaneously file
specified documents or information enclosed
in sealed envelopes to be opened as directed
by the court
The court may make any other order which justice
requires to protect the party or witness from annoyance,
embarrassment, or oppression.
Sec 17
Record of Examination; Oath; Objections
Sec 17 is about the conduct of the examination itself.
The examination shall be recorded and before the
examination, the witness shall be required to take his
oath.
125 | c a v e a t e m p t o r
The adverse counsel objects to the questions raised by
the party taking the examination on the witness.
- But as what was said earlier, the deposition
officer however cannot rule on the objection.
But the deposition officer shall only note them.
- It is not the same in the court nga kung muingon
nga ―objection, your honor, hearsay‖ muingon
dayon ang court ―overruled. Sustained.‖ Dili
muingon ang depositon officer ana.
- Ang iingon ra sa depositon officer kung naay
objection? Noted.
Who will rule on the objection?
- The court.
- When the deposition is submitted to the court, or
the party would use the deposition as testimony
of the witness, then the court has to rule on the
objections.
Sec 18
Motion to Terminate or Limit Examination
This section is long, but the gist is that:
- During the actual taking, any party may file a
motion or a petition to terminate the examination
or limit the examination if it appears that the
examination is conducted in such a manner as to
annoy, embarrass, or oppress the deponent or
party.
The motion to terminate or to limit the deposition may
be filed in the court where the action is pending, or
before the RTC of the place where the deposition is
being taken.
- For example, ang deposition taking didto sa
Luzon, so pwede ra sa RTC didto, the place that
has jd over the place where the deposition is
taken.
If the court finds that the motion is meritorious, the court
will uphold or will even terminate the examination.
Sec 19
Submission to Witness; Changes; Signing
After the taking of the deposition, the transcript of the
stenographic notes shall be submitted to the court by the
deposition officer.
Before submitting the transcript to the court, the same
shall be shown to the witness, and the witness shall be
required to sign the same.
- But parties may stipulate that the witness would
no longer be required to sign.
- But if the parties do not stipulate, the witness
will be required to sign.
- If witness will refuse to sign, he shall give his
reason.
Thereafter, the deposition officer shall submit the
deposition of the witness before the court in a sealed
envelope.
Sec 20
Certification and Filing by Officer
The officer shall certify on the deposition that the
witness was duly sworn to by him or her and that the
deposition is a true record of the testimony given by the
witness.
He or she shall then securely seal the deposition in an
envelope indorsed with the title of the action and marked
"Deposition of (here insert the name of witness)" and
shall promptly file it with the court in which the action is
pending or send it by registered mail to the clerk thereof
for filing.
After the filing, the officer shall notify all the parties
regarding the filing of the deposition in court. (Sec 21 –
Notice of Filing)
If a party wants to have a copy of the deposition, then he
shall inform the court of his desire to have one. (Sec 22
– Furnishing Copies)
Sec 23
Failure to Attend of Party Giving Notice
This is about failure to appear despite giving notice.
- If the party giving notice failed to attend during
the taking of the deposition, and the adverse
party was there, he is required to reimburse the
adverse party of the expenses in going there.
o Nagpatawag siyag deposition, ana siya
in that place and time naay depostion
pero siya mismo wala nitunga.
126 | c a v e a t e m p t o r
 - This is the same during trial. Kung sabot nga
hearing nya wala ka nitunga, unya nareset, you
might be required to reimburse the expenses
incurred by the parties in going to court.
Sec 24
Failure of Party Giving Notice to Serve Subpoena
The same rule with S23.
- Pananglitan, a notice was given to the adverse
party but the taking of the deposition did not
push through because the witness was not issued
a subpoena, just the same – the party calling or
who caused the taking of the depostion may be
required to reimburse the adverse party of the
expenses may be incurred in going to the place
of taking of the deposition.
Sec 25
Deposition upon Written Interrogatories; Service of
Notice and of Interrogatories
This is about deposition through written interrogatories.
- Here, instead of oral examination, examination
may be in writing, and the testimonies and
answers of the witness or of the deponent shall
also be in writing.
What about the adverse party if he wants to cross-
examine the witness? Allowed?
- Yes.
- Under Sec 25, he can submit cross-
interrogatories.
- The written interrogatories shall be furnished to
the adverse party through the counsel. If the
counsel for the adverse party can also submit
cross-interrogatories to the deponent.
The written interrogatories and the cross-interrogatories
shall be submitted for the witness to answer before the
deposition officer.
What is the advantage of written interrogatories?
- The advantage is that, this will lessen the
expenses.
- Just imagine kung ang imong witness naa sa
gawas.
o Kay diba pwede man siya makuhaan ug
deposition?
o Now, just imagine kung oral
examination, kinahanglan nga muadto
ka didto to give the oral examination.
Hasta pud ang pikas.
 But of course, walay
makapugong ninyo
o Pero kung gusto ka nga makasave sa
expenses, pwede written interrogatories.
 The questions shall be in
writing, unya ipadala didto sa
witness.
The taking of the deposition could be done before the
consular office of Ph.
Sec 26
Officers to Take Responses and Prepare Record
Naa ra gihapo’y deposition officer in written
interrogatories.
A copy of the notice and copies of all interrogatories
served shall be delivered by the party taking the
deposition to the officer designated in the notice, who
shall proceed promptly
- So the taking of the deposition through written
interrogatories still shall be done through a
deposition officer
- The same procedure.
o After the taking of the examination,
after the witness has answered the
questions, the answers, together with the
question, shall be filed before the court
under S27
o Sec 27. Notice of Filing and
Furnishing Copies.
 When a deposition upon
interrogatories is filed, the
officer taking it shall promptly
give notice thereof to all the
parties and may furnish copies
to them or to the deponent upon
payment of reasonable charges
therefor.
127 | c a v e a t e m p t o r
Sec 28
Orders for the Protection of Parties and Deponents
After the service of the interrogatories and prior to the
taking of the testimony of the deponent, the court in
which the action is pending, may issue orders for the
limitation of the taking of the deposition for the
protection of the deponent, as well as the parties.
Sec 29
Effect of Errors and Irregularities in Depositions
About errors and irregularities in the taking of the
deposition.
Any irregularity or error in the taking of the deposition,
if there is no objection, is deemed waived.
(a) As to notice.
- As to any irregularity, if there is no objection,
waived.
(b) As to disqualification of officer.
- As to any irregularity, if there is no objection,
waived.
Except: (c) As to competency or relevancy of
evidence.
- The objections are not deemed waived.
But objections are deemed waived if not raised during
the actual taking of the deposition:
(d) As to oral examination and other particulars.
(e) As to form of written interrogatories.
(f) As to manner of preparation.
RULE 24
DEPOSITIONS BEFORE ACTION OR PENDING
APPEAL
Rule 23 is about taking of depositions pending action.
Meaning, there is already a case filed.
Pananglitan, naghuna2 si P nga mufile ug case. But he is
still in the process of collecting the documents or
securing witnesses. He has a very important and vital
witness but the problem is that witness is sick. Shall we
say, that witness is sick of cancer. And there is a
probability that the witness would not make it during the
presentation of evidence. What is the remedy?
Especially if the testimony of the witness is very vital?
Wala pamay kaso nga nafile?
- In order to perpetuate the testimony of the
witness, he can file a petition in court for the
taking of the deposition of the witness.
- TN: Petition.
o Motion if naa nay case pending before
the court.
o If wala pa gani case, it is called petition.
- This is applicable even if the depostion taken is
that of the plaintiff himself.
The procedure would be more or less the same with Rule
23.
Sec 1
Depositions before Action; Petition
A person who desires to perpetuate his o own testimony
or that of another person regarding any matter that may
be cognizable in any court of the Philippines, may file a
verified petition in the court of the place of the residence
of any expected adverse party.
Sec 2
Contents of Petiiton
- Just a matter of reading.
Of course, ibutang diha kung what possible case is to be
filed, who are the possible parties, and who is that
witness nga gusto niyag kwaan ug advance testimony
and unsay katarongan nganung gusto man nimo siyang
kwaan ug depositon in advance.
In the petition, the petitioner has to ask the court to issue
an order authorizing the petitioner to take the deposition
of the prospective deponents for the purpose of
perpetuating the testimony.
Sec 3
Notice and Service
The petitioner, not the court, shall serve a notice upon
the person named in the petition as an expected adverse
party
128 | c a v e a t e m p t o r
And, the court shall cause notice thereof to be served on
the parties and prospective deponents in the manner
provided for service of summons.
- This is if the court finds the petition to be
meritorious.
- It shall order the taking of the deposition of the
party or that of his witness.
And, the court shall specify whether the taking of the
deposition should be done through oral examination or
written interrogatories.
Procedure would be the same as in Rule 23
Sec 6
Use of depositions
If a deposition to perpetuate testimony is taken, or if,
although not so taken, it would be admissible in
evidence, it may be used in the action which would be
subsequently filed by the petitioner.
But then, remember, if the witness will be available
during trial, he should testify.
Sec 7
Depositions Pending Appeal
Pwede ba diay nga naa pa’y presentation of the
testimony of witnesses pending appeal? Nga pending
appeal naman ang case?
- It could be that after the court has rendered its
decision, the aggrieved party, for example the
defendant, has filed a motion for new trial on the
ground of newly discovered evidence.
- One of the grounds for filing a Motion of New
Trial under R27 is newly discovered evidence.
o When we say newly discovered
evidence, it could be testimonial
evidence.
- So naa nay decision, unya napildi siya, nakakita
siya ug witness nga very vital and whose
testimony may change the decision of the court.
o He filed a Motion for New Trial, but it
was denied by the court.
o Remedy? He has to file appeal from the
decision.
- On appeal, among others, he will assign as an
error the denial of the trial court of his motion
for new trial.
o Kung pananglitan, muana nga ang
appellate court nga ―Aw oo, bitaw.
Nasayop ang trial court. So kinahanglan,
ibalik ta ni sa trial court for the taking of
the testimony of the witness who was
just discovered after the decision was
rendered.
o Nya kung pananglitan, himatyon na ang
wtiness. Kinsa pamay witness nga
ipresent?
 Mao na nga ang aggrieved party
may file a motion for the taking
of the deposition of the witness
pending appeal.
So, if an appeal has been taken from a judgment of a
court, including the Court of Appeals in proper cases, or
before the taking of an appeal if the time therefor has not
expired, the court in which the judgment was rendered
may allow the taking of depositions of witnesses to
perpetuate their testimony for use in the event of further
proceedings in the said court.
The motion for the taking of the deposition shall state (a)
the names and addresses of the persons to be examined
and the substance of the testimony which he intends to
examine; and (b) the reason for perpetuating their
testimony.
Of course, if the court finds the motion meritorious, then
it should allow the taking of the deposition.
RULE 25
INTERROGATORIES TO PARTIES
- This is another mode of discovery.
You might ask, is this not a repetition of rule 23 and 24?
Is this not a duplication? Di ba ni parehos ra?
- No.
- In R23 and R24 which are about deposition,
either upon oral examination or written
interrogatories, there is a deposition officer.
And, the deponent could be a mere witness, not
a party.
129 | c a v e a t e m p t o r
 - Under R25, there is no deposition officer. The
interrogatories are directly addressed to the
adverse party.
o The interrogatories are exclusive to the
adverse party. So dili pwede witness
o Kung witness gani imong pangutan-on,
deposition ang imong mode of
discovery.
Interrogatories to Parties, the questions, interrogatories,
are address directly to the adverse party, and the adverse
party shall answer directly the written interrogatories.
Sec 1
- So just like deposition, it can be done upon ex
parte motion
- It says that any party desiring to elicit material
and relevant facts from any adverse parties shall
file and serve upon the latter written
interrogatories to be answered by the party
served
Question: Suppose, has already availed of deposition
under R23 and R24. Can you still avail of interrogatories
to parties under R25?
- Yes.
- The modes of discovery are cumulative, not
alternative, not mutually exclusive.
o That is according to SC in the case of
Fortune vs CA (Jan 19, 1994)
Once written interrogatories are given to the adverse
party (ang hatagan raba jud ani ang parties. Di ang
abogado), written interrogatories should be answered
fully in writing and shall be signed and sworn to by
the person making them.
Sec 2
Now, the party upon whom interrogatories have been
served shall file and serve a copy of the answers on the
parties submitting the interrogatories within 15 calendar
days after service thereof, unless the court would set a
different period.
Pananglitan, kung dili tubagon.The plaintiff served
written interrogatories upon the defendant and the
defendant would just ignore them. What is the effect?
- The effect will be fatal.
If it is the plaintiff who refuses to answer written
interrogatories? The case may be dismissed.
- See Sec3(c) Rule 29, and the ruling the SC in
Arellano vs CFI (July 15, 1975)
Suppose, it is the defendant who will refuse an answer.
- He can be declared in default
- Rule 29 Sec 3
October 30, 2020
RULE 25
Interrogatories to Parties
This is another mode of discovery.
How does it differ from deposition upon written
interrogatories?
- In deposition, there is deposition officer. In
interrogatories to parties, no deposition officer
- In Deposition upon written interrogatories, the
written interrogatories can be addressed to a
party or to an ordinary witness. But under
interrogatories to parties, the questions are only
addressed to the adverse party.
Sec 2
Answer to Interrogatories
Whenever interrogatories are served on the adverse
party, the adverse party shall answer the questions in
writing, and the same shall be signed and sworn to by
such party.
The answers to interrogatories shall be served within 15
calendar days after having been served with the written
interrogatories.
What is the effect if dili tubagon?
- If he is the defendant, and he failed to serve his
answer to written interrogatories, he can be
declared in default pursuant to S3(c) of R29.
- If he is the plaintiff, the complaint can be
dismissed.
- This is aside from other possible measures that
the court may impose on the party who refuses
to answer the written interrogatories.
130 | c a v e a t e m p t o r
Sec 3
Objections to Interrogatories
Objections to any interrogatories may be presented to the
court within ten (10) calendar days after service thereof,
and the court should rule on or resolve the objection.
Sec 5
Scope and Use of Interrogatories
Just like in deposition, the subject of interrogatories
could be any matter related to the case, as long as they
are not confidential (Sec 5), and the same purpose as
provided in S4 R23. (Sec5)
- IOW, the answers to written interrogatories, just
like a deposition, it can be used to impeach the
testimony of such party given in open court.
Sec 6
Effect of Failure to Serve Written Interrogatories
Under S6, unless thereafter allowed by the court for
good cause shown and to prevent a failure of justice, a
party not served with written interrogatories may not be
compelled by the adverse party to give testimony in
open court, or to give a deposition pending appeal.
- As discussed, a party may make the adverse
party as his own witness.
o For example, si X gikiha si Y. Pwede
nga ang isa sa iyang mga witness kay si
Y mismo
 It would be risky. What can you
expect from the adverse party?
Natural, iyang mga tubag,
unfavorable jud na nimo
(unfavorable to the party calling
him to the witness stand)
 Pero if naay mga facts nga lisod
ideny, that would be to the
advantage of the party
presenting him because that
would be given weight by the
court.
 For example, securing
admission from the
adverse party.
Again, in civil cases, the procedure of calling the adverse
party to the witness stand is not allowed, unless written
interrogatories are first served upon the latter.
- Ng Meng Tam vs China banking Corp (G.R. No.
214054, August 05, 2015)
RULE 26
Admission by Adverse Party
Another mode of discovery.
Sec 1
It says ―after issues have been joined‖
- Meaning after the filing of the last pleading.
o What is the last pleading? It depends.
 If the plaintiff doesn’t file a
reply, the answer of the
defendant will be the last
pleading.
 If the plaintiff files a reply, and
defendant does not file a
rejoinder, reply is the last
pleading.
 But if the defendant files a
rejoinder, then rejoinder is the
last pleading.
- After the filing of the last pleading, the issues
now will be considered joined. After the issues
are joined, the party may file and serve upon
any of the party a written request for the
admission by the latter of the genuineness of
any material document described in and
exhibited with the request and the truth of any
material and relevant fact set forth in the request.
o So, pwede nga ang usa kaparty will
make a request for admission for the
genuineness of certain documents
described and attached to the request.
Or, admission as to the truth of certain
facts.
o At any time after issues have been
joined, a party may file and serve upon
any other party a written request for the
admission by the latter of the
genuineness of any material and relevant
document described in and exhibited
with the request or of the truth of any
material and relevant matter of fact set
forth in the request. (Sec 1)
131 | c a v e a t e m p t o r
The request for admission must be served on the
party himself, and not on his lawyer. (Duque vs CA)
- This is an exemption to the rule.
- As a rule, any document intended to a party
must be coursed through his lawyer.
o As an exception, according to SC: The
request for admission must be served on
the party himself, and not on his lawyer.
Otherwise, there will be insufficient
compliance with the requirements set
forth in Sec1 R26.
o Duque vs CA (July 2, 2002)
- However, if the matters in a request for
admission were already admitted or denied in
previous pleadings of the requested party, for
example, request for admission is already made
but the genuineness of the document or the truth
of the facts to be admitted have already been
denied, or if not admitted, then there is no need
to make another request for admission.
- SC: If admission or denial has already been
made, the requesting party cannot expect a
response to the request and assume or even
demand the application of implied rule in S2.
o Limos vs Odones (G.R. No. 186979
Aug 11, 2010)
What is the effect of failure to make an admission or
denial, if such request is made?
- Under Sec 2, if there is a failure to make a denial
or admission, it is implied that the request for
admission of genuineness or request for
admission of the truth of certain facts is
admitted.
o Sec 2: Each of the matters of which an
admission is requested shall be deemed
admitted unless, within a period
designated in the request, which shall
not be less than fifteen (15) calendar
days after service thereof, or within such
further time as the court may allow on
motion, the party to whom the request is
directed files and serves upon the party
requesting the admission a sworn
statement either denying specifically the
matters of which an admission is
requested or setting forth in detail the
reasons why he or she cannot truthfully
either admit or deny those matters.
Objections to any request for admission shall be
submitted to the court and the court has to rule on the
admission before the adverse party would ?? his answer
to the request.
Sec 3
Effect of Admission
Any admission by a party pursuant to such request is for
the purpose of the pending action only.
- It cannot be used in any other case.
Sec 4
Withdrawal
Can there be amendment or withdrawal?
- Yes.
- Under Sec 4, The court may allow the party
making an admission to withdraw or amend it
upon such terms as may be just.
Sec 5
Effect of Failure to File and Serve Request for
Admission
There is a penalty as to the party who fails to file and
serve request for admission.
- A party who fails to file and serve a request for
admission on the adverse party of material and
relevant facts shall not be permitted to present
evidence on such facts
RULE 27
Production or Inspection of Documents or Things
- another mode of discovery
This shall be made upon motion – Motion for Production
or Inspection
Sec 1
Motion for Production or Inspection; Order
Upon motion of any party showing good cause, the court
in which an action is pending may (a) order any party to
produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of
any designated documents, papers, books, accounts,
132 | c a v e a t e m p t o r
letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material
to any matter involved in the action and which are in
his or her possession, custody or control or (b) order any
party to permit entry upon designated land or other
property in his or her possession or control for the
purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant
object or operation thereon.
What is the difference between motion for production or
inspection and subpoena duces tecum?
- SDT may be addressed to an ordinary witness.
Whereas, in MPI, the order or the court is
directed against a party, not just an ordinary
witness or a person stranger to the case and
permit the inspection and copying or
photographing, by or on behalf of the moving
party, of any designated documents, papers,
books, accounts, letters, photographs, objects or
tangible things
Pwede pud ocular inspection.
- Example for ocular inspection?
- Motion could be filed for the purpose of
inspecting, measuring, surveying, or
photographing the property or any designated
relevant object or operation
- For example, a defendant against whom a
complaint for damages is filed, pwede mufile ug
motion sa court to require the plaintiff to allow
the inspection of the structure that is being
damaged.
o Aron makita sa court ang extent sa
damage.
Surveying?
- For example, boundary dispute. Naglalis ang
mga silingan, niallege ang usa nga ang iyahang
balay nakaencroach sa yuta sa usa. Either
plaintiff or defendant may file a motion for the
conduct of a relocation survey of the boundaries
of the properties of the parties
Or taking pictures or photographs of the property
involved.
The order, if granted by the court, shall specify the time,
place and manner of making the inspection and taking
copies and photographs, and may prescribe such terms
and conditions as are just
- Di pud pwede nga ang mag-expect didto ka yang
court ra and the requesting/moving party.
o The adverse party must also be present.
o Kinahanglan ang duha ka parties ang
present.
- Example, magpasurvey. Dapat ang duha ka
parties ang present.
o Pwede pud nga magkuha ug iyang own
representative. For example, if di siya
available, pwede siya magkuhag another
person to represent him during taking
the photographs or inspection.
RULE 28
Physical and Mental Examination of Persons
- Another mode of discovery
This mode of discovery is relevant when the physical or
mental condition of a person is the subject of the case.
- What cases are these?
- For example, in a petition for guardianship over
the person and property of the ward on the
ground of insanity or illness.
o Naay nifile ug petition for guardianship
kay kaning tawhana di na makaatiman
sa iyang kabutangan. If there is an
oppositor, either of the parties may ask
the court or submit a motion in court to
subject the ward to physical or mental
examination.
 Not for the purpose of treatment
but for the purpose of
determining the extent of his
incompetence
 Iow, the purpose of his
examination is to determine
whether the ward is really
incompetent.
o But, in Petition for guardianship wala
kaayo ni cases. Kay naa rani kung ang
naboang daghag kabutangan, daghag
kwarta. If naa gani daghag kwarta,
daghag mag-ilog ug kinsay muatiman.
- Another example. In a case for physical
damages based on injuries inflicted upon the
133 | c a v e a t e m p t o r
 victim, and the victim who is now the plaintiff is
asking for damages.
o The defendant may file a motion to
submit the plaintiff for physical
examination not for the treatment of the
injuries of the plaintiff but for
determining extent of injuries.
- For example, case for annulment of marriage on
the ground of impotency. Any party may request
for physical examination of the respondent to
evaluate, to determine his physical condition. It
could be the petitioner or the respondent who
may file a motion in court to subject the husband
for examination, to determine whether he is
really impotent or not.
o This is a case for annulment of
marriage based on impotency.
Remember your Family code that
impotency is a ground for annulment?
Sec 2
Order for Examination
If the court finds the petition to be meritorious, then the
court has to issue an order for the examination of a party.
Sec 3
Report of Findings
Pwede ba nga ang party nga gisubject ug physical or
mental examination, pwede ba nga mangayo siya sa
result sa examination nga gibuhat niya on motion of the
adverse party? Pwede ba sad siya mangayo sa result?
- Pwede.
- But there is an effect in his asking.
o By asking for a copy of the result of the
examination, the adverse party will also
have the right to ask for a result of the
previous examinations that such party
had undertaken or had undergone.
o Another effect is that he is waiving his
right to the so-called physician-patient
privileged communication.
So under sec 3, if requested by the party examined, the
party causing the examination to be made shall deliver to
him a copy of a detailed written report of the examining
physician
- After such request and delivery, the party
causing the examination to be made shall be
entitled upon request to receive from the party
examined a like report of any examination,
previously or thereafter made, of the same
mental or physical condition.
Kung dili siya muhatag sa previous results, under the last
sentence, if the party examined refuses to deliver such
report, the court on motion and notice may make an
order requiring delivery on such terms as are just, and if
a physician fails or refuses to make such a report, the
court may exclude his testimony if offered at the trial.
Sec 4
Waiver of Privilege
One of the effects if the party examined would request a
copy of the report.
There would be a waiver of the privilege between the
physician-patient privileged communication.
RULE 29
Refusal to Comply with Modes of Discovery
Effects of refusal.
- Example, party to whom written interrogatories
is served will refuse to serve answers to written
interrogatories
- Or if a deponent would refuse to answer
questions upon oral examination
Sec 1
Refusal to Answer
If a party or other deponent refuses to answer any
question upon oral examination, the examination may be
completed on other matters or adjourned as the
proponent of the question may prefer.
- The proponent may thereafter apply to the
proper court of the place where the deposition is
being taken, for an order to compel an answer.
o So, he can be compelled to answer.
If the application is granted, the court shall require the
refusing party, including the counsel advising him to
134 | c a v e a t e m p t o r
refuse, to pay proponent the amount of the reasonable
expenses incurred in obtaining the order.
If the application is denied and the court finds that it
was filed without substantial justification, the court may
require the proponent or the counsel advising the filing
of the application, or both of them, to pay to the refusing
party or deponent the amount of the reasonable expenses
incurred in opposing the application, including attorney's
fees.
Sec 2
Contempt of Court
Another consequence would be: contempt of court under
Sec 2.
- If a party or other witness refuses to be sworn or
refuses to answer any question after being
directed to do so by the court of the place in
which the deposition is being taken, the refusal
may be considered a contempt of that court
Sec 3
Other consequences
These are the other consequences for failure to heed to
the modes of discovery.
- For example, failure to answer a written request
for admission of the genuineness of the
document, or admission regarding the truth of
certain facts, or failure to answer written
interrogatories, or failure to comply with the
order of the court to present certain documents
Most fatal: under (c)
(c) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof,
or rendering a judgement by default against the
disobedient party
- If the refusing party is the plaintiff, the court
may order that the action, the case may be
dismissed.
- If the refusing party is the defendant, he could
be declared in default.
So mao na ang pinakagrabe nga effect for the refusal to
answer the oral deposition, or deposition upon written
interrogatories, or ignoring written requests for written
interrogatories, or ignoring to submit or failure to serve
answers to written interrogatories.
Under(d): In lieu of any of the foregoing orders or in
addition thereto, an order directing the arrest of any
party or agent of a party for disobeying any of such
orders except an order to submit to a physical or mental
examination.
Sec 4
Expenses
This is about expenses on refusal to admit.
- If a motion to admit genuineness of certain
documents is served on the adverse party but the
adverse party denied the genuineness of such
document, under Sec 4, he can be ordered to
reimburse the expenses incurred by the party
requesting the admission if he can prove the
genuineness of such document.
Sec 5
Failure of a party to attend or serve answers
This is about failure to serve answer to written
interrogatories.
- The court may strike out all or any part of any
pleading of that party, or dismiss the action or
proceeding or any part thereof, or enter a
judgment by default against that party, and in its
discretion, order him to pay reasonable expenses
incurred by the latter, including attorney's fees.
So those are the different modes of discovery.
- TN to remember the different modes, and how to
avail of them.
- Kadaghan nani giask sa bar.
- Common question: enumerate the different
modes of discover and state how to avail of each
of those modes of discovery.
DIFFERENT MODES OF DISCOVERY:
1. Deposition Pending Action
2. Deposition Before Action or Pending Appeal
3. Interrogatories to Parties
4. Request for Admission
5. Motion for Production or Inspection of
Documents, Etc.
6. Request for Physical or Mental Examination
135 | c a v e a t e m p t o r
 RULE 30
Trial
When we say trial, it refers to the presentation of
evidence, presentation of witnesses.
Trial is different from hearing.
- Hearing is a broader term than trial.
Sec 1
Schedule of Trial
Tells us the schedule of trial.
The trial shall be held within 30 days from the pre-trial
conference.
Kinsa may una mupresent ug evidence?
- Usually, the party who has the burden of proof
shall present evidence.
- Under Sec 5, it should be the plaintiff who shall
adduce (present first) his evidence.
- Within how many days should he finish
presenting his evidence? Under sec 1, within 90
days.
After the plaintiff has presented his evidence, the
defendant has to present his evidence within 30 days
from the time that the plaintiff rested his case.
- ―Rested,‖ meaning closed. Iya nang gisirad-an.
o Mao ni term sa mga lawyers.
- So after the plaintiff rested his case, defendant
shall present his evidence within 30 days
therefrom.
- And defendant should finish presenting his
evidence within 90 days.
These periods are for purposes of passing the bar.
- So: Within 30 days from termination of the pre-
trial conference, the plaintiff shall present his
evidence and shall be terminated within a period
of 90 days.
- Within 30 days from the termination of the
presentation of the plaintiff’s evidence, the
defendant shall present his evidence and shall be
terminated within a period of 90 days.
- Sa actual nga panghitabo, lisod matuman,
especially if daghan ug pending ang court.
o Naay mga courts nga ilang case load
mulapas ganig 1k.
o Just imagine, there are only more or less
20 working days in a month. And you
have to distribute the more than 1k cases
within 20 days. Ang mabuhat ra nimo
ana, ang pagroll-call.
Order of trial under Sec5:
- (a) The plaintiff shall adduce evidence in
support of his or her complaint;
- (b) The defendant shall then adduce evidence in
support of his or her defense, counterclaim,
cross-claim and third-party complaint;
- (c) The third-party defendant, if any, shall
adduce evidence of his or her defense,
counterclaim, cross-claim and fourth-party
complaint;
- (d) The fourth-party, and so forth, if any, shall
adduce evidence of the material facts pleaded by
them;
- (e) The parties against whom any counterclaim
or cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order
to be prescribed by the court;
- (f) The parties may then respectively adduce
rebutting evidence only, unless the court, for
good reasons and in the furtherance of justice,
permits them to adduce evidence upon their
original case; and
- (g) Upon admission of the evidence, the case
shall be deemed submitted for decision, unless
the court directs the parties to argue or to submit
their respective memoranda or any further
pleadings.
TN: Ang usual didto, plaintiff and defendant ra. So first
plaintiff, then followed by defendant, unya inig human
ana, mubaws nasad ang plaintiff to present his so-called
rebuttal evidence. After sa rebuttal, mutake over ang
defendant to present his so-called surrebuttal evidence.
So usually, plaintiff and defendant rajud.
- First plaintiff, then defendant.
o First time presenting the evidence of
plaintiff (or defendants) is called
evidence in chief.
 Plaintiff will present his
evidence in chief. Tanan nga
136 | c a v e a t e m p t o r
 pinakakusgan niya to prove the
causes of action.
o After that, defendant will present his
evidence in chief.
- Plaintiff will then do rebuttal.
o Rebuttal is the evidence that will refute
the evidences presented by the
defendant.
o As a rule, during the rebuttal, the
plaintiff may not present evidences to
prove his cause of action.
 Evidences to prove cause of
action should only be presented
during presentation of the
party’s evidence in chief.
 For example, muingon ang
defendant nga nakabayad siya.
Plaintiff will present evidence to
refute the claim that there was
payment.
 Possible nga siyay
mubalik sa witness
stand.
- Then, surrebuttal. The defendant shall now
present surrebuttal. Irefute ang unsay gisulti sa
plaintiff.
- TN: Presentation of rebuttal (or even sur-
rebuttal) is not mandatory. If there is nothing to
refute, there is no need to present rebuttal (the
same rule applies with surrebutal)
- Defendant will then present surrebuttal
Sec 3
Requisites of Motion to Postpone Trial for Illnes of
Party or Counsel
As a rule, postponement is not allowed, except on
meritorious ground.
Such as what?
- Illness of the counsel
o Stomach ache.
o These days, ang excuse kay ubo-ubo.
Nya diay tuas province kay nagconflict
ang sched
So under Sec 3, due to illness of counsel or party.
Sec 4
Hearing Days and Calendar call
Calendar
- Meaning schedule of the hearing.
So under Sec 4, the schedule of the hearing should be
posted outside the court room at least a day before the
hearing.
- So if mag-hearing sa Friday, Thursday palang,
naa na ang schedule for the next day.
Sec 6
Oral Offer of Exhibits
Didto ni sa evidence unya gi-reiterate diri.
So, after the presentation of the testimonial evidence of
the party, a party shall make a final offer on the exhibits.
- Before there are two kinds of exhibits. Either
oral or written.
o Pero karon, wala na ang written ky
makapalangay man. So wala na.
- TN: It shall be done orally.
Sec 9
Judge to Receive Evidence; Delegation to Clerk of
Court
The judge should personally receive the evidence to be
presented by the parties.
- Mao na ang judge jud ang mureside sa hearing
or trial.
- But there are instances where the reception of
evidence may be delegated to the clerk of court.
o Clerk of court is the supervisor. S/he is
next to the judge.
 In the RTC, should be a lawyer.
o Reception of evidence may be delegated
to the clerk, provided s/he is a lawyer.
 In which cases? During ex parte
hearing. Meaning in the absence
of the other party
 Remember when the
defendant will be
declared in default so
the plaintiff may present
his evidence ex parte.
137 | c a v e a t e m p t o r
  Walay lalis kay walay kontra.
So, the reception of the
evidence may be delegated by
the court to the clerk.
TN: The clerk of court cannot rule on objections.
- Possible nga walay objections kay ex parte man.
- But are there instances nga naay muobject? Yes.
o Under Sec 9, the parties may agree that
the reception of evidence may be
received by the clerk of court.
o If ever the parties have agreed that they
would present evidence
- Ang pwede ra isulti: Noted.
Who will rule on the objections?
- It is only the judge.
- There would be a transfer of the stenographic
notes and it would be the judge who will rule on
the objection.
RULE 31
Consolidation or Severance
Possible man gud nga the same parties X and Y, naa
silay mga nagbawsanay ug case. There could be a
consolidation of cases.
- I-consolidate. Usahon ra pag hear.
Possible sad nga lain-lain nga plaintiffs pero the same
defendant involving the same incident.
- For example, remember joinder of parties?
- So for example, naay bus madisgrasya. Naay
mga pasahero, nag-iyahay ug file ug case. There
were 40 passengers, so 40 cases ang gifile
against the operator or driver. So these 40 cases
may be consolidated and to be jointly tried in
one court.
- Why? To save time, resources and for
convenience.
Here, there should be a common question of facts, the
same law.
- So inig decide sa court, pwede ra usahon. This is
what we call as ―joint trial or consolidated trial
o Provided, there is a common question of
law or facts.
- There could be a joint trial or joint hearing.
What if these cases are filed in separate branches?
- Naa man guy areas nga 1 ra ang court.
o So consolidation may be made. Sayon ra
ang pagjoin.
o For example, sa Minglanilla. There is
only one court.
- The problem here is if there are different
branches.
o The unwritten rule is that the branch that
is trying the case that has the lowest
docket number will try the consolidated
case.
 For example, criminal case 1, 2,
3, 4, etc. Ang court nga
naghandle sa case 1 maoy
hatagan sa tanang cases.
So again, to avoid costs or delay.
The opposite of consolidation is separation.
- There could be a separate trial instead of
consolidation.
- Pero ang sagad consolidation, rather than
separate trial
RULE 32
Trial by Commissioner
There are cases that are beyond the competence of the
judge.
- There could be questions that could not be
resolved by the court, by the judge.
- For example, boundary dispute. Kanang
muingon nga giilog ang yuta kay gi-encroach.
Mufile ug case for recovery of ownership of the
portion encroached upon by the adverse party.
o How can a judge decide if there is
encroachment?
o If a judge took up engineering, kanang
geodetic, ok ra. But if he is not a
geodetic? Iyang undergrad, for example,
accountancy or polsci.
o So there is a need to appoint a
commissioner.
o A commissioner is someone who will
help the court in resolving such issue.
138 | c a v e a t e m p t o r
Sec 1
Reference by Consent
By written consent of both parties, the court may order
any or all of the issues in a case to be referred to a
commissioner to be agreed upon by the parties or to be
appointed by the court.
As used in these Rules, the word "commissioner"
includes:
- a referee,
- an auditor and
- an examiner.
So for example, ang gilalisan kay accounting of profits
or income.
- Maayo nalang kung ang judge naay background
sa accounting, Kung wala? There has to be a
commissioner to be appointed in order to help
the court resolve such factual issue.
o It would entail a lot of time if the judge
will examine it himself.
o So that the judge could devote his time
to other more important cases, mao na
ang parties pwede mag-agree nga mag-
appoint nalang ug commissioner.
The appointment of the commissioner may be agreed
upon by the parties, or upon motion, or motu proprio
ordered by the court.
- For example, as to geodetic engineer.
o Pwede public from DENR. If private,
pwede ra pero dapat dili kaila sa either
Expenses?
- Shall be shared by them. Magbahin sila.
o The same way w accountant.
Other instance wherein there is are commissioner/s:
Expropriation
- Remember expropriation? Wherein a private real
property is taken by the government…
- When will commissioners enter? Determining
just compensation is beyond the competence of
the judge. So mag-appoint ug commissioner or
board of commissioners who will resolve the
issue as to the amount of just compensation.
So unsay tawag ana? Commissioner
- The commissioner could be agreed by the parties
(upon motion), or the court may motu proprio
appoint.
Sec 2
Reference Ordered on Motion
When the parties do not consent, the court may, upon the
application of either or of its own motion, direct a
reference to a commissioner in the following cases:
- (a) When the trial of an issue of fact requires
the examination of a long account on either
side, in which case the commissioner may be
directed to hear and report upon the whole issue
or any specific question involved therein;
- (b) When the taking of an account is necessary
for the information of the court before
judgment, or for carrying a judgment or
order into effect;
- (c) When a question of fact, other than upon
the pleadings, arises upon motion or
otherwise, in any stage of a case, or for
carrying a judgment or order into effect.
The appointment of a commissioner may be done not
only during trial, or even on the execution stage of the
case.
- So after trial.
- For example, partition.
o Pwede muappoint ang court to execute
the judgement.
Sec 3
Order of Reference; Powers of the Commissioner
If the court believes that the motion is meritorious, or if
the court believes that there is a need to refer a matter to
the commissionr, the court may order to refer the matter
to the commissioner.
- The order shall set forth the limits of the powers
of the commissioners.
2nd to the last sentence of Sec3:
- Commissioner may issue subpoenas and
subpoenas duces tecum, swear witnesses, and
unless otherwise provided in the order of
reference, he or she may rule upon the
admissibility of evidence
o Pwede mudeny, overrule or sustain.
139 | c a v e a t e m p t o r
 o The commissioner is more powerful
than the clerk.
o Dili lang noted.
Before commissioning, the commissioner must take
oath. (Sec 4)
Sec 5
Proceeding before Commissioner
matter of reading.
Sec 6
Failure of Parties to Appear before Commissioner
Sec 7
Refusal of Witness
Considering that there could be presentation of witnesses
before the commissioner, refusal of a witness to obey a
subpoena or to give evidence could be considered as
contempt of court.
Sec 9
Report of Commissioner
After the hearing conducted by the commissioner, for
example, in the case of geodetic engineer, after the
conduct of the survey, the commissioner has to submit
his written report to the court.
- Under Sec 9, the commissioner has to report his
written report and upon submission, the clerk of
court shall inform or notify the parties regarding
the submission.
o Upon the completion of the trial or
hearing or proceeding before the
commissioner, he or she shall file with
the court his or her report in writing
upon the matters submitted to him or
her by the order of reference. (Sec9)
After submission, after the parties are notified, the court
shall hear the parties or shall set the report for hearing.
- After the hearing of the report, the court shall
issue an order if they’re adopting, modifying or
rejecting the report.
o IOW, the court shall not be bound by the
report of the commissioner.
Sec 12
Stipulation as to Findings
When a commissioner is appointed by the court, or if the
parties have agreed to refer to a commissioner, the
parties stipulate or agree that a commissioner's findings
of fact shall be considered final.
- For example, mag-hire sila for (independent)
geodetic engineer. Pwede sila mag-agree nga
kung unsay report sa geodectic engineer mao
nana.
o If there is a decision as to encroachment,
that may be the basis of the court to rule
on the encroachment.
Sec 13
Payment of the Commissioner?
- This is not for free.
- For example, geodetic engineer. Depende ang
pangayo sa location sa yuta.
- Kinsa ang mubayad? Pwede magsabot nga ang
mapildi ang magbayad. Pwede pud 50-50
o So depende sa ilang kasabotan.
Kanang commissioner, kinahanglan na kung naay issue
nga kinahanglan iresolve sa court or magneed ug taas
nga time.
- In election, for example. During election, wala
man juy losers. It’s between the winner and the
cheated.
o So if naay protest, the court may appoint
commissioners who shall decide.
 1 from the plaintiff
 1 from the defendant
 1 from either parties,
independent, who shall monitor
time.
The appointment of a commissioner is compulsory in
the case of expropriation as well as partition.
RULE 33
Demurrer to Evidence
- Important!!!
What is a demurrer to evidence?
- It is a motion to dismiss on the ground of
insufficiency of evidence of the plaintiff.
140 | c a v e a t e m p t o r
Sec 1
Demurer to evidence
When is the proper time to file demurrer to evidence?
- Under sec 1, After the plaintiff has completed
the presentation of his or her evidence (after the
plaintiff has rested his case), the defendant
may move for dismissal on the ground that upon
the facts and the law the plaintiff has shown no
right to relief.
- If motion is denied, defendant has to file
evidence.
- If granted, plaintiff may file appeal.
The time when can you say ―after the plaintiff has rested
his case‖?
- After the court have ruled on the formal offer of
the plaintiff of the object evidence.
- If demurrer is filed prior to such instances, the
filing of the demurrer is premature.
o If the court has granted it, ruling is void.
Is there is a need to ask leave of court for demurrer?
- In civil cases, there is no need to ask leave of
court.
- In criminal cases, leave of court is needed.
Usual question: distinguish demurrer to evidence in civil
cases and demurrer to evidence in criminal cases?
- One of the distinctions is that in civil cases,
motion for leave to file demurrer to evidence is
not required.
- Whereas, demurrer to evidence in criminal
cases, motion for leave to file demurrer to
evidence is required.
o In criminal cases, what will happen if
accused will file demurrer to evidence
without asking for leave, without asking
permission, he will just directly file
demurrer to evidence?
 It would be risky.
 The moment that the court will
deny his demurrer to evidence,
he cannot anymore present
evidence.
 He is deemed to have waived
his right to present evidence.
In civil cases, motion for leave to file demurrer to
evidence is not required. Such that, if the demurrer to
evidence is denied, the defendant may still be allowed to
present evidence.
- Present evidence. Not petition for certiorari
Suppose the demurrer to evidence is granted. What is the
remedy of the plaintiff?
- If demurrer to evidence is granted, that means
the case is dismissed because of insufficiency of
documents.
o Remedy of plaintiff kay gidismiss iyang
case? Appeal.
- This is another difference of demurrer to
evidence in civil cases and criminal cases.
- In civil cases, if demurrer to evidence is granted,
the plaintiff is allowed to file appeal.
o In criminal cases, if demurrer to
evidence is granted, the prosecution or
plaintiff cannot file appeal. This is
judgment on the merits.
 Filing an appeal would violate
the right of the accused against
double jeopardy.
So again, what is the remedy of plaintiff? File appeal.
The risk of the defendant is during the appeal.
- Assuming that the trial court granted the
demurrer. So, the case is dismissed. Now, the
plaintiff can now file appeal.
o On appeal, the appellate court may
affirm or reverse the order of the trial
court.
o Suppose it is affirmed, no problem for
the defendant.
o The problem is when the appellate court
will reverse the order of the trial court
granting the demurrer.
 Why? Kay diba mufile man
siyag demurrer, wala siya’y
evidence.
 Nya niapilar man ang plaintiff.
Gireverse man ang order so
court. What will happen?
 The appellate court will
not remand (return) the
case to the trial court for
the reception of
141 | c a v e a t e m p t o r
 evidence of the
defendant.
 If the appellate court
would reverse the order
of the trial court, the
appellate court will now
decide the case based
on evidences on record.
 Now, kinsa ramang
evidence ang naa sa
record? Only the
evidence of the
plaintiff.
 Most likely, mapildi ang
defendant.
If the motion of granted, but on appeal the order of
dismissal is reversed, the defendant is deemed to have
waived the right to present evidence. The appellate court
would not anymore return the case to the trial court for
the reception of evidence.
Sec 2
Action on Demurrer to Evidence
A demurrer is actually a motion to dismiss on the ground
of insufficiency of evidence.
- It should comply with the requirements of a
motion.
- And, a copy to the demurrer should be furnished
to the adverse party…
TN of the modes of serving a copy of the demurrer.
Under Rule 15, the adverse party is required to comment
within 5 days after receiving a copy of the demurrer.
Remedy if demurrer to evidence is denied?
- Present evidence.
- Petition for certiorari is not allowed.
o It is also not subject to appeal because it
is an interlocutory order .
Remedy if granted? Remedy of plaintiff is appeal.
RULE 34
Judgment on the Pleadings
- Important!!
When is the proper time for the court to render
judgment based on the pleadings?
- Under Sec 1, where an answer fails to tender an
issue, or otherwise admits the material
allegations of the adverse party's pleading, the
court may, on motion of that party, direct
judgment on such pleading.
- ―Fails to tender an issue‖?
o Issue means a disputed fact.
 It is a factual allegation
specifically denied by the
adverse party.
 Remember modes of making a
specific denial. If dili musubay
sa 3, the denial will be
considered as a general denial,
and the same has the effect of an
admission.
 For example, the answer of the
defendant has admitted all the
material allegations in the
complaint. Giadmit tanan, hasta
ang comma and period. Naa pa
ba’y issue ana?
 There will be no more
issue.
 Naa ba’y disputed factual issue?
None.
 Why? Admitted man
tanan.
 So, is there a need for the
parties to present evidence?
Unsa man iyang iprove nga
wala namay issue?
o If the answer fails to tender an issue, the
court may, on motion of the party,
render judgment based on the pleadings.
 What pleadings? Complaint.
Answer.
If there is no motion filed by the plaintiff, the court may
motu proprio submit the case for judgment on the
pleadings.
142 | c a v e a t e m p t o r
Judgment on the pleadings, however, is not available in
actions for declaration of nullity or annulment of
marriage or for legal separation
- Kay kung pwede pa na, daghan na’g naannul.
Sec 2
Action on Motion for Judgment on the Pleadings
The court may motu proprio or on motion render
judgment on the pleadings if it is apparent that the
answer fails to tender an issue, or otherwise admits the
material allegations in the adverse party's pleadings.
Any action of the court on a motion for judgment on the
pleadings shall not be subject of an appeal or petition for
certiorari, prohibition or mandamus.
Unsay buhaton sa plaintiff if his motion for the judgment
on the pleadings is denied?
- As the court to set the case for pre-trial. Go to
trial.
As to the defendant, if the motion to render judgment
based on the pleadings is granted:
- Kung pildi siya sa judgment/decision, he has to
file appeal.
- But TN: Dili pasabot nga kung naay judgment
on the pleadings , daog na ang plaintiff. Kay
what if, walay unod ang complaint. Daog siya?
Di siya mudaog.
o So it still depends. It’s not automatic.
o Pero dakog chance mudaog kung
gitarong ug buhat iyang complaint.
o This is just the same with judgment by
default. Wala nifile ug answer ang
defendant, sigurado ba’ng daog ang
plaintiff? Dili. Kay kung insufficient
ang allegations sa complaint, i-dismiss
na sa court.
RULE 35
Summary Judgments
For purposes of passing the bar, you should be able to
distinguish summary judgment and judgment of the
pleadings.
- In the judgment of the pleadings, there are no
more factual issues. The court will render
judgment just based on the pleadings filed by the
parties.
In summary judgments, there are still issues.
- There are disputed factual obligations.
- These issues are not genuine.
When can you say that an issue is not genuine? When
can you say there is issue but not genuine?
- For example, the issue is just as regards the
amount of damages.
o So example, plaintiff filed a case for
damages based on torts. Kay kunohay,
iyang naligsan si P. In his answer,
defendant admitted that he bumped the
plaintiff. But he argued that the amount
of damages claimed by the plaintiff is
excessive.
o There is now an issue, but the issue is
only as regards the amount of damages.
 This is very easy to prove. You
only have to present receipts.
Execute affidavit. Or deposition.
o In such situations, there could be
summary judgment.
 On motion of the parties, the
court may render summary
judgment and the parties will be
required to submit affidavits,
depositions, and other
documents to support the issues
involved.
- ―Genuine issue‖
o It is an issue which requires the
presentation of evidence.
Judgment on the pleadings vs Summary judgment
- JP, judgment is entirely based on the pleadings
filed without presentation of evidence.
o In SJ, judgment may be based not only
on the pleadings but also based on the
affidavits, depositions, as well as
admissions by the parties.
- In JP, no more factual issue involved because
everything is admitted.
o In SJ, there is an issue but the issue is
not genuine as it pertains only to the
amount of damages, or to the interests.
143 | c a v e a t e m p t o r
 - Whether JP or SJ, both are not available in
actions for declaration of nullity or annulment of
marriage or for legal separation
So summary judgment, naa pa’y issue pero gamay rajud
kaayo. Not a genuine issue.
Sec 1
Summary Judgment for Claimant
A party seeking to recover upon a claim, counterclaim,
or cross-claim or to obtain a declaratory relief may, at
any time after the pleading in answer thereto has been
served, move with supporting affidavits, depositions or
admissions for a summary judgment in his or her favor
upon all or any part thereof.
- In a motion for summary judgment, the movant
shall attach to the motion affidavits, depositions
or admissions of the adverse party.
Kung pananglitan, naay issue pero legal issue. If there is
legal issue?
- Then it may be ground for summary judgment.
- For example, declaratory relief.
o Questioning the validity of a law, statute
or ordinance. Most likely, the issue
involved is merely a legal question or
question of law. So, there could be
summary judgment.
Who can file the?
- Claiming party.
- And under Sec 2, it can also be a defending
party.
o Sec 2 Summary Judgment for
Defending Party. A party against
whom a claim, counterclaim, or cross-
claim is asserted or a declaratory relief
is sought may, at any time, move with
supporting affidavits, depositions or
admissions for a summary judgment in
his or her favor as to all or any part
thereof.
Sec 4
Case Not Fully Adjudicated on Motion
Under Sec 4, the motion shall comply the requirements
under rule 15:
- It shall be in writing
- A copy thereof shall be furnished to the adverse
party
- The adverse party has 5 days from receipt of his
copy to comment
- Etc.
Under Sec 4, there could be a partial summary judgment.
What is the remedy if the motion is denied?
- The order of the court cannot be subject of
appeal, petition for certiorari, mandamus, just
like in the order of a court in a motion for
judgment on the pleadings.
Sec 5
Form of Affidavits and Supporting Papers
Supporting Papers
- Supporting and opposing affidavits shall be
made on personal knowledge, shall set forth
such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is
competent to testify to the matters stated therein
- Certified true copies of all papers or parts
thereof referred to in the affidavit shall be
attached thereto or served therewith
Read case:
- Calubaquib vs Republic (June 26 2011)
o About summary judgment
o (Lzl Research) Due process rights are
violated by a motu proprio rendition of a
summary judgment. Given the trial
court's opinion that the basic facts of the
case were undisputed, it advised the
parties to file a motion for summary
judgment. Neither party filed the
motion. In fact, respondent expressed
on two occasions its objection to a
summary judgment. It explained that
summary judgment is improper given
the existence of a genuine and vital
factual issue, which is the petitioners'
claim of ownership over the subject
property. It argued that the said issue
can only be resolved by trying the case
on the merits.
o "A summary judgment is permitted only
if there is no genuine issue as to any
144 | c a v e a t e m p t o r
 material fact and [the] moving party is
entitled to a judgment as a matter of
law.‖ The test of the propriety of
rendering summary judgments is the
existence of a genuine issue of fact, "as
distinguished from a sham, fictitious,
contrived or false claim." "[A] factual
issue raised by a party is considered as
sham when by its nature it is evident
that it cannot be proven or it is such that
the party tendering the same has neither
any sincere intention nor adequate
evidence to prove it. This usually
happens in denials made by defendants
merely for the sake of having an issue
and thereby gaining delay, taking
advantage of the fact that their answers
are not under oath anyway."
o In determining the genuineness of the
issues, and hence the propriety of
rendering a summary judgment, the
court is obliged to carefully study and
appraise, not the tenor or contents of the
pleadings, but the facts alleged under
oath by the parties and/or their witnesses
in the affidavits that they submitted with
the motion and the corresponding
opposition. Thus, it is held that, even if
the pleadings on their face appear to
raise issues, a summary judgment is
proper so long as "the affidavits,
depositions, and admissions presented
by the moving party show that such
issues are not genuine."
- Philippine Business Bank vs Chua (Nov 15,
2010)
o (Lzl Research) A summary judgment, or
accelerated judgment, is a procedural
technique to promptly dispose of cases
where the facts appear undisputed and
certain from the pleadings, depositions,
admissions and affidavits on record, or
for weeding out sham claims or defenses
at an early stage of the litigation to
avoid the expense and loss of time
involved in a trial. When the pleadings
on file show that there are no genuine
issues of fact to be tried, the Rules allow
a party to obtain immediate relief by
way of summary judgment, that is, when
the facts are not in dispute, the court is
allowed to decide the case summarily by
applying the law to the material facts.
o The rendition by the court of a summary
judgment does not always result in the
full adjudication of all the issues raised
in a case.
o This is what is referred to as a partial
summary judgment. A careful reading of
this section reveals that a partial
summary judgment was never intended
to be considered a "final judgment," as it
does not "[put] an end to an action at
law by declaring that the plaintiff either
has or has not entitled himself to recover
the remedy he sues for." The Rules
provide for a partial summary judgment
as a means to simplify the trial process
by allowing the court to focus the trial
only on the assailed facts, considering as
established those facts which are not in
dispute.
o After this sifting process, the court is
instructed to issue an order, the partial
summary judgment, which specifies the
disputed facts that have to be settled in
the course of trial. In this way, the
partial summary judgment is more akin
to a record of pre-trial, an interlocutory
order, rather than a final judgment.
November 6, 2020
RULE 36
Judgments, Final Orders and Entry Thereof
―Decision‖
- Refers to the final consideration and
determination of a court of competent jd upon
the matters submitted to it in an action or
proceeding.
o Gotamco vs Ching (46 PHIL 542)
Judgment vs Decision
- Mostly interchanged. But there are technical
differences.
145 | c a v e a t e m p t o r
 - D refers to the entire written document. J refers
to the dispositive portion (the fallo) of the
decision.
Final Order vs Interlocutory Order
- IO, there is still something more to be done by
the court in the case.
o Example: Order denying a motion to
dismiss
 When the court issues an order
denying the motion to dismiss,
the court still has something to
do. The court still has to
continue trying the case.
- FO means there is nothing more to be done by
the court in the case.
o For example, Order of Dismissal.
 There is nothing more to be
done by the court.
 If the court will dismiss the
case, for example, for res
judicata, there is nothing more
to be done by the court.
Sec 1
Rendition of judgments and finals 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.
Requisites of a valid judgment or decision or final
order.
1. It must be in writing personally and directly
prepared by the judge.
- Although in court, there is a legal researcher.
Legal researcher may be assigned to draft the
order or decision. But the draft order or decision,
once signed by the judge, it will become the
order of the judge and not of the legal researcher
o In the court, there are court-
decongestion officers (CDO) which has
the same role of the legal researcher.
But only those courts whose cases are
more than 500 are entitled to CDO.
- TN: by the judge
o Not the lawyer of plaintiff.
o It should be by the judge.
o But there is this face-to-face trial
suggestion, naay courts nga gitest.
Paatubangon ang witnesses, unya ang
judge ang mag ask. Ang judge, kung
kinsay party nga padaogon, maoy
pabuhaton sa decision. But this was
abandoned by the SC
2. The decision must clearly and distinctly state
the facts and law on which it is based
- Facts, meaning the evidence presented
o I-state ang evidence sa plaintiff, sa
defendant.
 But dili ra kutob diri.
 Iyang istate asa iyang gituohan,
and will justify nganung diha
siya ningtuo nituo.
o For example, niingon ang plaintiff
―nangutang ni siya‖. Ingon ang
defendant, ―wala ko nangutang bisag
unsa kadako nimo.‖
 Asa man ang tuohan ana?
 Kung muingon ang court ―mas
credible ang plaintiff, iyang
ibutang sa decision nganu man
nga gituohan niya ang plaintiff.
Mao nay gitawag nga facts.
- Then, the law
o If it an action for collection for sum of
money, possible law is the law on
Obligations and Contracts.
o There is this case for collection of sum
of money. Sa iyang decision, gikopya
ang tanang allegations sa complaint
other than the title, and after copying the
allegations in the complaint, he copied
the allegations in the answer. After, ang
dispositive portion, iyang gicopy ang
dispositive portion sa plaintf.
 Sakto? Sayop.
 Unsa may angay buhaton?
 The court shall not only
state the allegations in
the complaint, but as
well as the evidences
presented by the
defendant. And the
court shall state which
146 | c a v e a t e m p t o r
 version the court
believes, and why.
 Kanang pagjustify
nganung mao na imong
gituohan, mao nanang
sa rules of evidence.
3. The decision must be signed by the judge, and
filed with the clerk of court.
- ―Filed by the clerk of court‖
o Meaning, iyang isubmit ang decision sa
clerk of court, unya tatakan sa clerk
kung kanus-a niya nareceive.
- Ang pagtatak sa clerk, kanang pagreceive sa
clerk of court, mao nay gitawag nga
promulgation.
o In decisions for civil cases, one step ra.
 Kanang pagreceive sa clerk of
court, mao na ang
pagpromulgate.
o In criminal cases, the promulgation of
the decision has two steps:
 (1) Filing or submission of the
decision of the judge to the
clerk of court. Receipt of the
clerk of court; and
 (2) Pagbasa sa decision in open
court.
What will happen if the decision fails to state the fact
and the law? Labi najud kung both?
- The decision will be void.
- Go vs East Oceanic Leasing and Finc Corp (Jan
2018):
o SC: The parties to a litigation should be
informed as to how it was decided with
an explanation as to the factual and legal
reasons that lead to the conclusions of
the court.
- PP vs Pestilos (Oct 10, 2014)
o SC: A decision shall state clearly and
distinctly the facts and the law on which
it is based.
The only decision nga will not need stating of facts: a
decicion based on compromise aggrement
- Kana bitawng magsabot ang mga parties?
o For example, si P nifile ug case against
D. 1M. Unya nagkasinabot sila nga
bayaran ni D ang 1M in installment. For
example, 20 monthly installments.
 If magbuhat silag compromise
agreement, mustate sila sa
kasabotan nga ―The parties,
assisted by the counsels, have
agreed on the following: (1) that
the defendant would pay
plaintiff the amount of 1M; (2)
that said amount shall be paid in
20 equal monthly installments
in the amount of Php per month;
(3) that the first payment shall
be paid on… and the succeeding
payments shall be made on..
every 10th day of the month
until fully paid‖
 Sa decision pud sa court, simple
ra kaayo. ―The parties submitted
a compromise agreement which
states as follows:…‖
 I-quote rapd to ang
agreement.
 After, dispositive portion:
―Wherefore, finding the
foregoing agreement to be
consistent with law, public
order, public policy, public
moral, the court hereby
approves the same and adopts it
as a decision in this case.‖
 Pirmahan dayon sa
judge.
What is the effect of a decision based on compromise
agreement?
- A compromise agreement is immediately
executory. It cannot be subject of appeal.
o If a party wants to file an appeal, he has
first to ask the court to declare the
compromise agreement as void on the
ground of intimidation, force, violence
or other causes which vitiates consent.
o He cannot appeal unless the compromise
agreement will be nullified.
TN: The parties can enter into a compromise agreement
before judgment, or even after agreement, or even after
the decision has become final and executory.
147 | c a v e a t e m p t o r
 - The compromise agreement can even supersede
the decision of the court.
- Bisag execution stage na, pwede gihapon
makaenter into compromise agreement
- See: Magbanwa vs Uy (May 6, 2005)
o SC: The parties may still enter into a
compromise agreement, even if the
decision is pending appeal, or even after
the decision has become final and
executory.
What are the different forms of judgment or decision
under the ROC?
1. Judgment on the Pleadings (special form of
judgment)
2. Summary Judgment (special form of
judgment)
3. Judgment by Default (special form of
judgment)
o Kanang di makafile ug answer ang
defendant, the court may render
judgment based on the allegations in the
complaint
o Or court may require plaintiff to present
evidence.
4. Judgment Based on Compromise Agreement,
Consent or Agreement
5. Judgment Nunc Pro Tunc or Order Nunc Pro
Tunc
o One of the bar favorites.
o This is a judgment that directs or
requires recording of a judgment not
recorded in the docket of the court.
 Naa man gud taga court, naay
dako kaayo nga libro. Kada
decision sa court, isuwat didto
ang dispositive portion of every
case.
o If a judgment has not been recorded, the
court shall order directing that the
decision not entered into the docket
book shall be recorded in the book.
6. Judgment upon or by confession
o This judgment is rendered by the court
when a party expressly agrees to the
claim of the plaintiff, or acknowledges
the validity of the claim against him
o Di siya mufile ug answer, pero muingon
siya sa court ―Oo, tinuod na iyang
gisulti tanan.‖
o This is diff with judgment on the
pleadings.
 In JP, the defendant filed an
answer.
 In JC, the defendant did not file
an answer. Nisuwat ra siya. Ang
answer, gipaagi ug suwat.
7. Clarificatory Judgment
o When the judgment of the court is
ambiguous and difficult to comply, the
adverse party may file a motion for
clarification, and the court may grant the
motion and would render clarificatory
judgment
o CJ, a judgment which clarifies the
previous decision of the court which
contains ambiguities.
8. Memorandum Decision
o Not in the codal but was asked in the
bar.
o An MD is a decision which adopts by
reference the findings of fact and
conclusion of law contained in the
decision of a lower court.
 Oil and Natural Gas
Commission vs CA (July 23,
1998)
9. Several Judgment
Sec 2
Entry of Judgment and Final Orders
- This is important.
Under Sec2, if there is no appeal, or motion for new trial
or reconsideration is filed within the time provided in
these Rules, the judgment or final order shall be entered
by the clerk in the book of entries of judgments.
- In court, naay dako kaayo nga libro. Kada
decision nga ifile sa court, isuwat na didto.
The date of finality of the judgment or final order shall
be deemed to be the date of its entry.
- Isuwat lang na didto kung unsay decision sa
court once the decision becomes final and
executory
148 | c a v e a t e m p t o r
 - Prior amendment, the date of entry is different
from the date of finality.
o Ang date of entry sauna is kung kanus-a
nasuwat.
 Unya, makalimot man ang clerk
masuwat. Naay time nga 5 years
nalang na decide, mao pay pag
enter. So maoy date of entry.
 The date of entry is the
reckoning date in
determining whether the
petition for relief from
judgment was timely
filed.
 Date of entry is also the
basis of the counting if
the decision may still be
executed by mere
motion.
- Now, the date of finality is also the date of entry.
Before the decision becomes final and executory, the
court has the inherent power to amend, to change the
decision.
- So meaning, before the lapse of the 15 day
period.
- But, after lapse, after the decision becomes final
and executory, the decision shall be immutable.
o Di na ni machange. Hasta ang sayop nga
grammar, mahimong final. Di na pwede
icorrect, except sa purely clerical errors
or clarify ambiguity.
o This is the Doctrine of Immutability
of Decision
 GR: Under this doctrine, a final
and executory decision could no
longer be amended or changed
 EXC:
 Purely clerical errors
 To clarify ambiguity
 Decision in support
cases
o These do not
become final
and executory.
It can be
amended
anytime.
Sec 3
Judgment for or against one or more of the several
parties
Remember joinder of parties?
- If two or more parties are joined in one
complaint, the court may render judgment for or
against one or more of the several parties
Sec 4 Several Judgment
- This is another kind of judgment.
In an action against several defendants, the court may,
when a several judgment is proper, render several
judgments against one or more of them, leaving the
action to proceed against the others
Expropriation proceedings
- In such proceedings, for example, naay gabuhat
ug kalsada. Daghan jud nang tag-iya sa yuta nga
maligsan. Pwede ra usahon na sila nga kaso,
made as defendants.
- The court may render judgment pertaining to a
defendant or some of the defendants, and the
case shall continue against the others.
Sec 5 Separate Judgment
Remember joinder of causes of action?
- Two or more causes of action may be joined in
one complaint.
- If the court can validly render judgment over a
COA that has been joined, the court has to
render a separate judgment.
- The judgment shall terminate the action with
respect to the claim disposed of and the action
shall proceed as to the remaining claims.
Sec 6
Judgment against entity without juridical
personality.
The court shall set out their individual or proper names.
- When judgment is rendered against two or more
persons sued as an entity without juridical
personality, the judgment shall set out their
individual or proper names, if known.
149 | c a v e a t e m p t o r
 RULE 37
New Trial or Reconsiderations
Kung napildi mo sa imong client for whatever reason,
what are your remedies? These are Post-Judgment
Remedies
- TN of PJR.
- Kay naa man jud nay chance nga masayop ang
court ug appreciate.
o Ang imong pagtan-aw sa case, possible
nga dili parehos sa ang pagtan-aw sa
judge.
Remedies:
Under R37, 2 remedies:
- Motion for New Trial
- Motion for Consideration
Sec 1
Grounds of and period for filing motion for new trial
or reconsideration.
Remedy: MOTION FOR NEW TRIAL
Within the period for taking an appeal, the aggrieved
party may move the trial court to set aside the judgment
or final order and grant a new trial for one or more of the
following causes:
(a) Fraud, accident, mistake or excusable
negligence which ordinary prudence could
not have guarded against and by reason of
which such aggrieved party has probably
been impaired in his rights
- FAME.
- What kind of fraud that this fraud refers to?
Extrinsic Fraud
o Extrinsic fraud is a fraud that prevents
the adverse party from presenting his
case fully or from presenting his
evidence fully in court.
o This is a kind of fraud that deprives a
party for his day in court.
o Example: He is lead to believe by the
plaintiff that there is no need for him to
present evidence, no need for him to file
answer.
 Or gipalit, nahalin ang iyang
abogado,
o This is not only available to the
defendant. This is also available to the
plaintiff.
 Kay it is possible that the case
will be dismissed because
evidence was not properly
presented.
o Pananglitan, after the court has rendered
decision, nahibaw-an sa defendant nga
kadto diayng witness sa plaintiff,
binayran diay to. The evidence that they
presented in court was falsified. Can that
be considered as extrinsic fraud which is
a ground for NT?
 No.
 Extrinsic fraud refers only to a
kind of fraud that prevented a
party to present his case fully.
 If he was not prevented to
present documents to rebut or
refute the witnesses of the
adverse party, it is not
considered extrinsic fraud.
Therefore, not a ground for NT.
 A kind of fraud that is aground
for NT is extrinsic fraud.
- Accident:
o Meaning, a fortuitous event that
prevented the aggrieved party from
presenting his case.
 For example, nasakit ug covid.
Wala katestify.
o This is something which is unforeseen,
unexpected or unanticipated.
o For example, during pre-trial, he was
not able to attend because he suffered
heart attack.
 What happens if he will fail to
attend during Pre-trial? If
plaintiff fails to appear, case
will be dismissed. If defendant
fails to appear, plaintiff may
present evidence ex parte
o Nasakit kag covid. Muadto unta kas
court pero nasakit covid. Accident.
- Mistake
o Mistake here is committed by the
aggrieved party.
150 | c a v e a t e m p t o r
 o Pananglitan, paghuman niyag dawat sa
summons, niduol siya, nagpakiluoy sa
plaintiff kung pwede ba data-datahan
ang utang. Nagtuo ang defendant nga
okay nato. Pero sayop iyang pagtuo.
Kinahanglan man diay nga mufile siyag
answer para dili madeclare in default.
 Effect if declared in default?
The court may render decision.
So possible mapildi.
 If wala pay decision, remedy is
to file motion to set aside
default order.
 If naa nay decision no longer
motion to set aside order. It
should be a motion for NT.
o But TN: Mistake of counsel is binding
upon the client.
 Sayop sa abodago, the same is
binding upon client.
 If wala nakafile ug kaanswer
tungod sa kabusy, not a ground
for NT.
 Pero if wala nakafile kay nasakit
ug covid, it could be a ground
for being an accident
- Excusable negligence
o The party here was negligent, but the
negligence is excusable.
o For example, nagbuhat ug answer ang
abogado. Nya gipafile sa imong
abogado didto sa court. Busy man ka,
imong gipafile sa imong secretary. Pero,
imong secretary nakalimot. That could
be negligence on your part nganung
gitugyan pa nimos secretary. That could
be considered excusable negligence, a
ground for NT.
- Again, TN: Whenever the ground is FAME, 4
requirements should be compiled:
o (1) The motion for NT must be verified
o (2) The facts constituting FAME (usa ra
ha. Dili tanang FAME) must be set out
or alleged in the motion, as well as the
affidavit of merits
o (3) The facts constituting meritorious
defense or meritorious COA must be
alleged in the motion, as well as the
affidavit of merits
o (4) The motion must be accompanied by
an affidavit of merits
 Affidavit of meits alleges,
reiterates the facts constituting
fame, as well as the facts
constituting meritorious defense
or meritorious COA.
(b) Newly discovered evidence, which he could
not, with reasonable diligence, have
discovered and produced at the trial, and
which if presented would probably alter the
result.
- If the ground is newly discovered evidence,
affidavit of merits is not required.
- ―Newly Discovered Evidence‖
o Dili ni newly remembered or forgotten
evidence ha.
 If newly remembered, not a
ground for NT. Common.
o Newly discovered, meaning the
evidence was discovered only after the
decision was rendered, or only after the
presentation of evidence.
- Grounds (newly discovered evidence)
- (1) The evidence was discovered only after the
presentation of evidence (or only after trial
- (2) Could not have been discovered and
produced at the trial despite reasonable
diligence.
- (3) If presented, the evidence would probably
alter or change the result of the case.
- (4) The evidence must be material, such that if
presented, the decision of the court might be
changed,
Another remedy: MOTION FOR
RECONSIDERATION
On what ground?
- That the court erroneously appreciated the facts
or erroneously applied the law.
o In a motion for reconsideration, the
movant will plead to the court to take a
second look at the records of the case.
o You point out at the court ―saan siya
nagkamali‖
151 | c a v e a t e m p t o r
 o Either erroneous appreciation of the
facts, or erroneous application of the
law, or both.
- Another ground: there is excessive award of
damages.
o But the usual ground is the erroneous
appreciation of the facts or erroneous
application of the law.
But TN, tagsa rana mahitabo nga ang court
mareconsider.
- Kay sa wala pa niya gidecide ang case, iya
nanang gitimbang-timbang daan.
o Such that, if you file a motion for recon,
you must persuade, convince the court
nga nasayop siya.
o If the movant will just simply reiterate
the arguments, would just simply rehash
the evidence presented, ayaw nalang.
Maypa mufile ka ug appeal.
TN: Filing of a motion for extension to file MR or MNT
is not allowed.
- And MNT or MR must comply with the
requirement under Rule 15
Sec 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.
- If it is MNT on the ground of FAME, it must be
supported by affidavit of merit.
o Affidavit of merit – an affidavit that
would allege the facts constituting
FAME, and the facts constituting
meritorious defense and meritorious
COA if it is the plaintiff who is asking
for NT.
- If MNT on the ground of newly discovered
evidence, then a copy of the document that is
recently discovered or a copy of the affidavit of
the newly discovered witness must be attached
to the motion.
- If MR is on the ground of erroneous
appreciation of the facts or erroneous application
of the law, the movant has to point out the errors
committed by the court.
o Or if MR is on the ground where the
amount of the damages awarded is
excessive.
The requirements are important because if the
requirements are not complied with, the motion shall be
considered as pro forma.
- And a pro forma motion does not interrupt the
running of the prescriptive period or the
reglementary period.
Neypes vs CA
- The filing of an MNT or MR does not only
interrupt the running of the reglementary period,
but would give the movant a fresh period of 15
days from the receipt of the order denying the
MNT or MR.
Sec 3
Action upon motion for new trial or reconsideration.
The court may grant or deny the motion.
- The trial court may set aside the judgment or
final order and grant a new trial, upon such
terms as may be just, or may deny the motion. If
the court finds that excessive damages have been
awarded or that the judgment or final order is
contrary to the evidence or law, it may amend
such judgment or final order accordingly
Sec 5
Second motion for new trial.
There could be a 2nd motion for NT but the 2nd MNT
must be based on a ground not known by the movant at
the time that he filed the first MNT.
For example, the ground on the first motion was FAME.
It was denied. Pagdawat niya sa order denying the MNT,
nakakita siya ug witness nga material or vital.
- So pwede siya mufile ug 2nd MNT on the ground
of newly discovered evidence.
TN: Filing of a 2nd MR is not allowed
- But what we are talking here is a 2nd MR of a
judgment or of a final order.
- If it is a 2nd MR on an interlocutory order is
allowed.
152 | c a v e a t e m p t o r
 o What is not allowed is a 2nd MR of a
judgment or a final order.
Effect if MNT is granted?
- There should be a new trial, another trial for the
reception of newly discovered evidence.
- Or, if based on FAME, the original decision
must be set aside, and there should be reception
of new evidence.
o Mao nay gitawag nga trial de novo,
meaning new trial.
There could be a partial NT or a partial MR.
- When less than all of the issues are ordered
retried, the court may either enter a judgment or
final order as to the rest, or stay the enforcement
of such judgment or final order until after the
new trial.
Remedy if the motion for MNT or MR is denied?
- Appeal.
- It could not subject for petition for certiorari or
mandamus. Petition for certiorari is available
only when there is no other remedy. Considering
that the movant still has other remedy which is
appeal, the petition for certiorari is not available.
Let’s jump to R40-R45 (about appeal)
Another Post-judgment Remedy: Appeal
Just like MNT or MR, appeal shall be filed within the 15
day period after receiving a copy of the decision or final
order of the court.
- TN: From Rule 40-45, period to file appeal is
within 15 days.
o This is uniform.
- EXC: When record on appeal is required. The
period is extended to 30 days.
DIFFERENT MODES OF APPEAL:
CASE FROM MTC
MTC
- Remedy of the aggrieved party from the
decision? Ordinary Appeal (R40)
o OA is perfected by mere filing of a
notice of appeal with the court that
rendered the decision
o The questions that may be raised could
be either question of law, or question of
facts, or mixed question of law or facts.
 It could be pure question of law,
or pure question of facts, and/or
mixed
- So MTC to RTC, ordinary appeal. (R40)
o Notice of appeal shall be filed w MTC
RTC
- Suppose, RTC affirmed or reversed decision of
MTC.
o What is the remedy of the aggrieved
party from the adverse decision of the
RTC?
o From the RTC, the mode of review is
Petition for Review (R42) to be filed
in CA
 The questions that may be
raised could be either question
of law, or question of facts, or
mixed question of law or facts.
 It could be pure q of law, or
pure q of facts, and/or mixed qs
of facts and law.
- TN: what is appealed to CA is not the decision
of CA but the decision of the RTC (either
affirming or reversing MTC decision)
153 | c a v e a t e m p t o r
 - If: the question is pure question of law, can it be
filed directly to the SC w/o passing through CA?
o No.
o The mode of appeal wherein the
decision of the RTC can be directly
appealed to SC on pure questions of law
is available only when the decision is
rendered by the RTC in the exercise of
its original jurisdiction.
o Remember: The case came from the
MTC, such that the RTC renders the
decision in the exercise of its appellate
jd. And under R42, even if the aggrieved
party would raise pure question of law,
the same has to be appealed to the CA
through Petition for Review.
CA
- Suppose, CA affirmed or reversed decision of
RTC. What is the remedy of the aggrieved party
from the decision of the CA?
o The decision of CA may be filed to the
SC by Petition for Review on
Certiorari (R45)
 TN: Not petition for certiorari,
not petition for review.
- TN: Basta appeal to SC, there is only one mode
of appeal – and that is Petition for Review on
Certiorari.
o EXC: Criminal case
 When CA imposes life sentence,
death or RP
o In civil cases, walay exception.
SC
CASE ORIGINALLY FILED IN RTC
RTC
- What are the different modes of appeal from the
decision of the RTC?
o From RTC, the aggrieved party may
file an appeal the decision to the CA by
Ordinary Appeal (R41), by filing a
notice of appeal with RTC (trial court
that rendered the decision)
 The appeal to the CA may raise
questions of law and facts
- If the aggrieved party would only raise pure
question of law and the decision is rendered in
the exercise of its (RTC’s) original jd, the appeal
shall be directly made in the SC.
o Mode of appeal: Petition for Review on
Certiorari (R45)
CA
- Suppose, the CA affirmed or reversed RTC
decision. What is the remedy of the aggrieved
party?
o Remedy of the aggrieved party is
appeal to SC.
o Mode of appeal? Petition for Review
on Certiorari under R45
SC
Exceptions:
- In Land Registration Cases
o The decision of the MTC in Land
Registration cases shall be appealed to
the CA by Ordinary Appeal.
 MTC to CA
o Why? MTC is exercising delegated jd
by the RTC. MTC is acting as RTC.
 So decision of the MTC shall be
appealed to the CA
- Election Protest Cases
o The decision of the MTC shall be
appealed to the COMELEC
o Election protests involving election of
brgy captain or officials, or councilors
What do you mean by ―Harmless Error Rule‖
- Means that the appellate court will just overlook
the errors committed by the Trial Court in
admitting evidence if such errors do not affect
substantial rights of aggrieved party, or if the
aggrieved party is not prejudiced.
o PP vs Teehankee (Oct 6, 1995)
154 | c a v e a t e m p t o r
 RULE 40  Kay kung dili siya
Appeal From Municipal Trial Courts to the Regional mufile ug appeal, he
Trial Courts cannot ask for a change
in decision.
This is the rules on appeal from the decision of the MTC  If he will not file an
to the RTC. appeal, it means that he
is entirely contented
Sec 1 with the decision.
Where to Appeal  Kung gusto gani siya
nga naay usbon sa
An appeal from a judgment or final order of a Municipal decision, he has to file
Trial Court may be taken to the Regional Trial Court an appeal.
exercising jurisdiction over the area to which the MTC  When this happens,
belongs. silang duha tawgon ug
- Dili ka makapataka ug file ug appeal bisag asa. appellant.
The RTC must have jd over the place where the  This is what you call as
MTC is located. ―cross appeal‖
o So kung ang decision girender sa MTCC o Defendant-
Cebu City, adto sa RTC Cebu City mu- appellant
file ug appeal. Dili sa RTC Mandaue o Plaintiff-
appellant
Where do you file the Notice on Appeal?
- MTC. (Sec3) Sec 2
- There was this case where the lawyer filed When to File Appeal
Notice on Appeal in the RTC. What is the
effect? Within how many days? 15 days.
o No effect. - TN: The filing of the appeal within the
o So, the decision has become final and reglementary period is mandatory and
executory. jurisdictional.
o Unsa may mahitabo ana? Panitan kas o If an appeal is filed beyond the
client tungods imong kadaghang. reglementary period, the appeal will be
HAHAHA dismissed.

Unsa ma’y tawag sa mufile ug appeal?
- Title of the case will be the same. But the person
filing the appeal, pakapinan ug appellant or
apellee.
o For example, the defendant filed an
appeal. In the title, he will become
defendant-appellant
 If plaintiff, plaintiff-appellee
o If silang duha ang muappeal kay wala
nakontento sa imong decision?
 Yes.
 Nakadaog tuod ang plaintiff
pero gamay kaayog giaward.
Wala makontento. So he has to
file an appeal.
What is the nature of the appeal?
- SC: Right to appeal is not a natural right or part
of due process. It is merely a statutory privilege
and may be exercised only in the manner and in
accordance with the provisions of the law or
rules.
- Ortiz vs CA (Dec 4, 1998)
Perfecting of appeal in the manner and within the period
prescribed by law is not only mandatory but also
jurisdictional.
- Manila Memorial Park Cemetery Inc vs CA
(Nov 15, 2000)

155 | c a v e a t e m p t o r
In another case, pwede ba nga muappeal ka unya ang When record on appeal is required, it would be 30 days.
error nga iassign is lack of jd or grave abuse of (Sec2)
discretion?
- Yes, pwede. What is a record on appeal?
- Basin magtuo mog certiorari ra ang pwede - Simply, record on appeal are the records of the
muuse ug lack of jd. Pwede sad sa appeal. case in the trial court, which shall be a certified
- The general rule is that the remedy to obtain true copy.
reversal or modification of a judgment on the
merits is appeal. This is true even if the error Record on appeal is required in instances where appeal
ascribed to the court which rendered judgment is from an interlocutory order is allowed.
its lack of jurisdiction over the subject matter, or - As mentioned, ang masubject ug appeal, kana
the exercise of power in excess thereof, or grave rang final order or judgment.
abuse of discretion in the findings of fact or of o As a rule, an interlocutory cannot be
law set out in the decision. subject to appeal.
o Bisan pa ug grave abuse of discretion, or o EXC: There are instances wherein an
acting in excess or lack of jd, pwede interlocutory orders may be subject to
masubject ug appeal. appeal.
o Venturillo vs Quitain (G.R. NO. 157972  Special Proceedings
Oct 30, 2006)  For example, probate sa
will. The order of the
Remember case of Neypes vs CA: court allowing or
- The movant or aggrieved party will have a fresh denying the probate of
period of 15 days after denial of MNT or MR. the will, or the order of
- Kanang naa sa 2nd par Sec 2, the word the court allowing the
―interrupted‖ is no longer accurate. probate of the will, is
o Dili interrupted. considered an
o The aggrieved party will have a fresh interlocutory order.
period of 15 days. However, ROC allows
from such order.
Sec 3  Nganung considered as
How to appeal interlocutory order?
Inig issue sa court of the
How to file appeal? order allowing the
- Or, how is it perfected? probate of the will, dili
- By filing a notice of appeal with the court that man mahuman ang
rendered the judgment or final order. case. Mupadayon pa
ang case kay tan-awon
TN: In the notice of appeal, the material dates must pa sa court ang intrinsic
be stated. validity of the will (eg
- Very important wala ba’ y heirs
o This is so simple but if you will fail to omitted, etc)
state the material dates, the appeal will  Nya magpabilin man
be dismissed. ang records sa case sa
- The material dates, meaning the date when trial court kay naa
appellant has received a copy of the decision or panay butanon ang
order of the court. court. Magtrial paman.
o Because this is the reckoning date for Maghearing paman.
the counting of the 15 day period. Unsa may basahon

156 | c a v e a t e m p t o r
 didto sa appealate judgment ang giappeal. Pero if ang giappeal is ang case
courts where multiple appeals are allowed, record on appeal ra
 Mao na nga girequire ang ipadala), shall notify the parties.
ang record on appeal. - Ang ipadala sa clerk of court notice that the
 What is a record on record of the case has already been received by
appeal? A record of the the RTC.
case in the trial court - Why is notice imoortant? Because within 15
prepared and filed by days from receipt of notice under (b), the
the party filing the appellant has to file the so-called memorandum.
appeal. o If the appellant fails to file his
 Kung kinsay muappeal, memorandum, the appeal would be
maoy mupamachine dismissed.
copy sa mga records, - Daghan mga abogado nasipyat. Kay nagtuo sila
especially ang records nga issuehan silag order pagpafile. Dili order
nga related sa iyang ang iissue. Notice. Pahibaw-on raka.
appeal, unya pacertifyan o TN: The receipt of your notice shall be
niya nga true copy. the reckoning date for the counting of
Unya mao nay ipadala the 15 day period.
sa court.
 In cases where multiple appeals What is a memorandum?
are allowed. - Memorandum is similar to an appellant’s brief.
- Anha sa memorandum nimo ibutang ang mga
Sec 5 arguments nganung nasayop ang trial court.
Appellate court docket and other lawful fees - You are going to state the assignment of errors.
o Kanang assignment of errors, anha
With the period to file appeal, the appeal docket fee shall nimo ibutang unsay mga sayop sa trial
be paid. court.
- Ang appellant, gawas nga mufile ug notice of - TN: Failure of the appellant to file a
appeal, bayaran niya ang appeal docket fee. memorandum shall be a ground for dismissal of
- This is fatal kung dili mabayran. The case may the appeal.
be dismissed.
Upon the filing of the memorandum of the appellant, the
Sec 6 appellee may also file his memorandum.
Duty of the Clerk of Court - Within fifteen (15) days from receipt of the
appellant's memorandum, the appellee may file
Once an appeal is taken, the court may issue an order his memorandum. (Sec 7(b))
giving due course. - On the part of the appellee, it is not mandatory
- When the appeal is filed within the 15 day for the appellee to file a memorandum. But it
period to file appeal and the corresponding would be advisable. Kay siya man ang
docket fees are paid, the court may issue an mudepensa sa decision sa court nga sakto siya.
order giving due course to the appeal and would
order the clerk of court to forward the records of After the filing of the memorandum of the appellee, or
the case to the RTC. lapse or expiration of the period to do so, the case shall
be submitted for decision.
Sec 7
Procedure in the Regional Trial Court. Section 8.
Appeal from orders dismissing case without trial; lack
The RTC, upon receipt of the original records of jurisdiction.
(kadtong original records ang ipadala sa RTC kung
157 | c a v e a t e m p t o r
Suppose, the order being appealed is the order of An appeal may be taken from a judgment or final order
dismissal due to lack of jurisdiction. that completely disposes of the case, or of a particular
- Bantayi ni ang Sec 8. matter therein when declared by these Rules to be
- If the RTC would affirm the order of appealable.
dismissal that indeed, the trial court has no jd, it - It is only a final judgment or decision, or a final
will not dismiss the case but would try the case order.
as if the case is originally filed with that - You should already know the distinction
court. between an interlocutory order and a final order.
o That is kung muaffirm siya sa order sa o IO, temporary order. An order is
TC nga walay jd ang TC. considered interlocutory if it does not
o So it would not dismiss the case but dispose of the case, but leaves
would try the case on the merits as if it something else to be done by the trial
was originally filed with it. court on the merits of the case.
- If it would reverse the decision, it would return  Example: An order denying a
the case to the MTC. motion to dismiss. The
o Suppose, MTC has already conducted defendant files a motion to
trial or reception of evidence. Unya dismiss, but the court denies it.
decision na ang giappeal. The order denying the motion is
 The RTC would not dismiss the considered IO because it does
case but would decide, would not dispose of the case but
render a decision based on the instead it leaves something else
evidence on record. to be done by the trial court as
regards the merits of the case.
 Gideny man ang motion
November 13, 2020 to dismiss, so magtrial.
o FO, if it disposes of the entire case.
Last topic: - There are instances nga bisag dili final order or
Appeal judgment, pwede ma-appeal.
o Example: Cases where multiple appeals
It is a must to remember the different modes of appeal are allowed. Such as:
from the MTC all the way to SC.  Expropriation case.
- TN of the different modes, how it is perfected,  The order of the court
how it is taken, how it is done. allowing expropriation
of the case is an IO.
After the court issues an
RULE 41 order allowing
Appeal From The Regional Trial Courts expropriation, there is
still something more to
- This is the mode of appeal from RTC to CA. be done by the court
which is to determine
Rule 41 tells us the procedure on how to appeal from the just compensation.
adverse decision of the RTC in the exercise of its  Under Rule 67, an order
original jd. granting expropriation
may be subject to
Sec 1 appeal
Subject of Appeal  An order denying motion for
intervention.
What are the matters that could be subject of appeal?  If a motion to intervene
is denied, the remedy of
158 | c a v e a t e m p t o r
 the supposed intervenor
is appeal.
 Motion for leave to file third
party complaint
 Remember? Defendant
may file tpc to bring
into the case a third
person. If his motion for
leave to file tpc is
denied, the remedy is
appeal.
Matters that cannot be subject to appeal:
- Matter of reading, but will discuss the important
ones.
No appeal may be taken from:
- (a) An order denying a motion for new trial or
reconsideration;
- (b) An order denying a petition for relief or any
similar motion seeking relief from judgment;
- (c) An interlocutory order;
o An IO cannot be subject to an appeal
except when authorized by the rules.
- (d) An order disallowing or dismissing an
appeal;
- (e) An order denying a motion to set aside a
judgment by consent, confession or compromise
on the ground of fraud, mistake or duress, or any
other ground vitiating consent;
- (f) An order of execution;
- (g) A judgment or final order for or against one
or more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending,
unless the court allows an appeal therefrom; and
- (h) An order dismissing an action without
prejudice.
o For example, the complaint does not
contain any certification against forum
shopping. Or the CAFS is defective.
 What will happen to the
complaint? The complaint can
be dismissed but the dismissal is
without prejudice.
 The remedy is not appeal but
petition for certiorari (if there is
grave abuse of discretion)
 Casupanan vs Laruya
(Aug 26, 2002)
o Another example: Dismissal based on
improper venue.
 Remedy if a case is filed based
on improper venue? Refile the
case. Dismissal without
prejudice.
o This is the same with dismissal on the
ground of defective cafs
 Remedy is to refile the case.
 Ofc if there is grave abuse on
the part of the court, remedy
could be certiorari.
Last par: In all the above instances where the judgment
or final order is not appealable, the aggrieved party may
file an appropriate special civil action under Rule 65
- Aggrieved may file appropriate special civil
action
o That could be petition for certiorari.
o Kay di man pwede masubject ug appeal
if there is grave abuse of discretion on
the part of the trial court in dismissing
the case
- Or, in issuing any of these orders, remedy is
petition for certiorari under R65.
Section 2.
Modes of appeal. —
(a) Ordinary appeal. — The appeal to the Court of
Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction
shall be taken by filing a notice of appeal with
the court which rendered the judgment or final
order appealed from and serving a copy thereof
upon the adverse party. No record on appeal
shall be required except in special proceedings
and other cases of multiple or separate appeals
where law on these Rules so require. In such
cases, the record on appeal shall be filed and
served in like manner.
(b) Petition for review. — The appeal to the Court
of Appeals in cases decided by the Regional
Trial Court in the exercise of its appellate
jurisdiction shall be by petition for review in
accordance with Rule 42.
(c) Appeal by certiorari. — In all cases where only
questions of law are raised or involved, the
appeal shall be to the Supreme Court by petition
159 | c a v e a t e m p t o r
 for review on certiorari in accordance with the
Rule 45
ORDINARY APPEAL
The appeal to the Court of Appeals in cases decided by
the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal
with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon the
adverse party. No record on appeal shall be required
except in special proceedings and other cases of multiple
or separate appeals where law on these Rules so require.
In such cases, the record on appeal shall be filed and
served in like manner.
- This is the mode of appeal taken from decision
of the RTC in the exercise of its original
jurisdiction.
This is called ordinary kay simple ra kaayo ang pagbuhat
sa appeal.
- The aggrieved party would just file a notice of
appeal.
- For example, idismiss ang case. Ibutang ra:
o ―The plaintiff hereby notifies the court
that it is appealing its decision in the
above-entitle case to the Court of
Appeal on questions of law and facts.‖
How to perfect appeal by ordinary appeal?
- Notice of appeal shall be filed with RTC that
rendered the decision
o Ayaw kasayop. There is a new lawyer
who filed his Notice of appeal to the
higher court (in the appellate court)
 TN: This will not stop the
running of the reglementary
period.
 TN: Wrong perfection of appeal
will not stop the running of the
prescriptive period.
 In a case, it’s either the
property, life or liberty of your
client is at stake. Ayaw jud mog
kasipyat.
In cases where multiple appeals are allowed, record on
appeal is also required.
- So Notice of Appeal and Record on Appeal
- What is Record on Appeal?
o This is only applicable to cases allowing
multiple appeals.
o In cases that allows multiple appeals, the
subject of the appeal is an interlocutory
order. Since interlocutory, records of the
case cannot be sent to the appellate
court, kay magtrial pa. Naa pay
buhatonon ang trial court. Ang records
sa case dili pa mapadala sa taas. Nya naa
ma’y giappeal. Unsa may basahon sa
appellate court?
 Mao na ang records, relevant
orders ipa-machine copy.
 This is not simple photocopy.
Dapat ipa-certified true copy.
 The CTC of the relevant orders
and documents, ipadala sa
appellate court. Such records are
called record on appeal.
o Records on Appeal are certified true
copies of the case records (documents
and/or orders) of the trial court.
o But this is only required to be submitted
in the appellate court for cases which
allows multiple appeals.
Ordinary appeal shall be perfected by filing a notice of
appeal with the trial court.
- No record on appeal is necessary except in those
instances when multiple appeals is required.
- Record on appeal is required together with a
notice of appeal in instances where multiple
appeals are allowed.
o Example where multiple appeals
allowed:
 Expropriation cases
 Special proceedings.
o Giallow gani ang multiple appeals,
automatic nga naay record on appeal.
Notice of appeal, para ni sa cases nga gidesisyonan sa
RTC in the exercise of its original jd, and the aggrieved
party would like to raise in the appellate court both
questions of law and fact
- Factual issue and legal issue.
o If the aggrieved party will raise only
legal questions or question of law, the
mode of appeal shall be Petition for
160 | c a v e a t e m p t o r
 Review on Certiorari directly to the SC
under R45 (Sec 2(c))
o Petition for review on certiorari is
otherwise known as appeal by certiorari.
 Remember: Do not be confused
with Petition for Certiorari and
Petition for Review on
Certiorari.
 TN: If there is Review on
Certiorari, it is a mode of appeal
under Rule 45. A Petition for
review is not a mode of appeal
under R65.
 Although a limited
mode of review
 Another term for Petition for
Review on certiorari? Appeal by
Certiorari.
 When can be availed?
In a case rendered by
the RTC in the exercise
of its original jd and the
aggrieved party would
like only to raise pure
question of law.
Ordinary appeal, asa i-appeal? CA
- Question of law and facts; or
- Pure question of facts
PETITION FOR REVIEW
The appeal to the Court of Appeals in cases decided by
the Regional Trial Court in the exercise of its appellate
jurisdiction shall be by petition for review in accordance
with Rule 42
When can Petition for Review be used as mode of
appeal?
- This is the mode of appeal taken from the
decision of the RTC in the exercise of its
appellate jd, and the appeal shall be filed in the
CA.
- The issues that can be raised could be pure
question of law, pure question of facts or mixed
question of law and facts.
Modes of Appeal in the RTC:
- Ordinary Appeal
o Appeal from the decision of the RTC in
the exercise of its original jd
o Can be perfected by filing of a notice of
appeal with the RTC
- Petition for Review on Certiorari
o Appeal from the decision of the RTC in
the exercise of its original jd and
aggrieved party would only raise pure
questions of law, to be filed in SC
o This shall be perfected by filing a
petition for review on certiorari in the
SC.
 Adto ifile sa SC, not sa RTC.
- Petition for Review
o This is the mode of appeal taken from
the decision of the RTC rendered in the
exercise of its appellate jd.
o Can be perfected by filing a petition for
review in the CA.
o The issues that could be raised are pure
question of law, pure question of facts
or mixed question of law and facts.
Section 3. Period of ordinary appeal.
This is uniform.
- Rule 40-45, all 15 days.
- EXC:
o Record on Appeal is allowed
 It would be 30 days if Record
on Appeal is required to be filed
together with Notice on Appeal.
Record on Appeal is allowed
when multiple appeals are
allowed
 If Record on Appeal is allowed
to be filed with the Notice of
Appeal, the period of appeal
should be within 30 days.
o Appeal in Habeas Corpus
 48 hours.
 This is understandable because
in habeas corpus, a person is
detained.
Remember: Neypes vs CA (Sept 14, 2005)
- In this case, the filing of MR and MNT will not
interrupt, but would rather give a fresh period of
15 days.
161 | c a v e a t e m p t o r
Section 4.
Appellate court docket and other lawful fees.
TN: Non-payment of appellate docket fees is a ground
for dismissal.
- What are the grounds for dismissal of appeal?
o Non-payment of the appellate docket
fees.
Section 5.
Notice of appeal.
The notice of appeal shall indicate the parties to the
appeal, specify the judgment or final order or part
thereof appealed from, specify the court to which the
appeal is being taken, and state the material dates
showing the timeliness of the appeal. (4a)
In the notice of appeal, even in the Petition for Review
or Petition for Review on Certiorari, the date when the
aggrieved party has received a copy of the decision or
the order denying the MR shall be stated in the appeal.
- This is what is called Material Dates Rule
o Material Dates
 These are the dates when you
received a copy of the decision
or a copy of the order denying
MR or MNT.
 Gitawag nig material date kay
maoy tan-awon kung timely ba
ang pagfile sa appeal.
 You may put ―the plaintiff has
received a copy of the decision
sometime on…‖
 This is simple. Pero if
dili nimo ibutang,
mahimong complicated.
This will be another
ground for the
dismissal.
Section 6.
Record on appeal; form and contents thereof.
Form on the record on appeal.
Record on appeal
- These are the certified true copies of the
important documents or orders on the record that
are related the interlocutory order that is being
appealed to the higher court.
- Record on Appeal shall be approved by the
court, tan-awon na kung in order ba.
Just the same, it must be shown on the Record on appeal
and Notice of appeal that the appeal was taken on time.
- How to determine that the appeal was taken on
time?
o By stating the date when the party has
received a copy of the decision, or if
naay MR or MNT, the date when he
received the order denying
Section 7.
Approval of record on appeal.
The Record on Appeal shall be approved by the court if
there is no objection from the adverse party.
Pwede ba ang plaintiff and defendant will file an appeal?
- Yes, if silang duha wala nakontento sa decision.
- Daog tinuod ang plaintiff, pero ang damages
pwerteng gamaya ang giaward. Gusto sa
plainitff padak-an.
o So unsay buhaton? Need siya mu file ug
appeal.
 If dili siya muappeal, that means
that he conforms to the
judgment of the court 100%.
 He cannot ask the appellate
court to change or amend the
decision unless he would file an
appeal.
o Wala nakontento sa amount kay 100k ra,
gusto siya ma100M. Kinahanglan mufile
ug appeal.
 Kay kung dili, he cannot ask the
appellate court to increase the
amount.
 By not filing an appeal, that
means that he is in accord 100%
with the decision.
- So again, under Sec 8, there could be a joint
record on appeal if both parties filed an appeal.
162 | c a v e a t e m p t o r
Sec 9
Perfection of appeal; effect thereof.
This is about perfection of appeal, or loss of jd.
Perfection of appeal
- This means how it is taken, how it is filed.
Par 1: A party's appeal by notice of appeal is deemed
perfected as to him upon the filing of the notice of
appeal in due time.
What is the effect once a party files an appeal?
- For example, P vs D.
o Pila to kaadlaw ang pagfile sa appeal?
Within 15 days.
o Ibutang nato nga si P nakadawat sa
iyang copy of the decision niadtong Nov
10. So, naa siyay 15 days from Nov 10.
Si D nakadawat sa copy sa decision
niadto pang Nov 8. Nauna kay duol
raman si D. So, wala sila nagdungan.
o Si D, napildi man, nifile siya pagbuntag
ug notice of appeal karon (Nov 13). Naa
pa ba’y jd ang trial court sa case?
o For example, si P wala pa makonteto sa
amount of damages. Gipabayad si D,
pero gamay kaayo. Wala makontento si
P. Pagbuntag, nifile ug Notice of Appeal
si D. Pwede pa ba makafile ug MR si P?
 Yes.
 But as regards D, he could no
longer file an MR or MNT.
 Because if a party files
an appeal,
automatically, as far as
he is concerned, the
court has no more jd or
power to grant him any
remedy.
 As far as D is
concerned, he (D, the
appealing party) could
no longer ask for relief
from the trial court.
 But, as regards P who has not
filed an appeal and whose
period to file appeal has not
expired, he may still ask
remedies from the trial court.
 Such as, he can ask for
reconsideration or a
new trial.
 As guide: Remember that if one
of the party appeals, the court
will lose 50% of the case. Not
100%. Why?
 The court may still
grant relief.
 The court still has
power over the party
whose period to file
appeal has not yet
expired and has not yet
availed of the remedy of
appeal.
The same is true in instances where record on appeal is
required.
- As regards party filing a notice of appeal, the
court could no longer grant remedy as to him
who filed an appeal.
- Ganina, si D ang nifile sa notice of appeal.
Suppose, si P, karong Monday (Nov16), mufile
sad ug notice on appeal kay wala nakontento. By
that time, the court has entirely lost jd over the
case.
o As far as the two parties are concerned,
their remedies can only be obtained
from the appellate court.
- Suppose, wala nifile ug Notice of Appeal si P.
When will the court lose jd?
o The court will lose jd over the entire
case once the period to file appeal of P
would expire.
 Kanus’a siya nakadawat? Nov
10. So plus 15 days, Nov 25.
 By Nov25, the court will lose jd
over the entire case.
Last par: In either case, prior to the transmittal of the
original record or the record on appeal, the court may
issue orders for the protection and preservation of the
rights of the parties which do not involve any matter
litigated by the appeal, approve compromises, permit
appeals of indigent litigants, order execution pending
163 | c a v e a t e m p t o r
appeal in accordance with 2 of Rule 39, and allow
withdrawal of the appeal.
- This is what is called residual powers.
- As a rule, wala nay power ang court to grant
remedy or relief to parties.
o However, prior to the transmittal of the
original record or record on appeal, the
court may issue.
 Wala nay jd ang court kay both
parties has filed an appeal, or
only one of the parties filed an
appeal but the reglementary
period to appeal of the other
party has prescribed, the court
no longer has jd.
o However, before the case is forwarded
to the appellate court, the trial court may
still grant remedies.
What are the remedies that the court may grant pursuant
to its Residual Power?
- (1) the court may issue order for the protection
and preservation of the rights of the parties
which do not involve any matter litigated by the
appeal,
o Example, kanang pag-appoint ug
receiver or custodian of the property
under litigation, in order to prevent the
property from being deteriorated.
o For example, in a judicial foreclosure
case. In order to preserve the property
subject of the case, or to prevent the
property from being deteriorated, the
court may appoint a receiver even if the
parties has filed an appeal, provided the
case record has not yet been forwarded
to the appellate court.
- (2) approve compromises,
o Remember: kanang compromise
agreement, pwede na mabuhat sa mga
parties even if the case is still pending.
So before decision. Or even if the court
has already rendered a decision. Or even
if the decision of the court has become
final and executory. The parties can still
validly enter into a valid compromise
agreement.
- (3) permit appeals of indigent litigants,
- (4) order execution pending appeal in
accordance with 2 of Rule 39, and
o Execution pending appeal is an
exemption to the rule.
o GR: If a party files an appeal, the
execution of the decision or judgment of
the court shall stay.
 Meaning, ibilin usa. Status quo.
o EXC: There are instances that execution
pending appeal is allowed.
 Especially, in ejectment cases.
There can be an execution
pending appeal.
 But TN, execution pending
appeal is not the rule.
o The trial court, even if both parties have
appealed, even if the court has lost jd
over the case, the court can still issue an
order for the execution of the decision
pending appeal.
- (5) allow withdrawal of the appeal.
Kanang residual powers, lahi pud na sa ―residual
prerogatives‖
- Remember Sec 1 rule 9?
o These are the instances where the court
can dismiss motu proprio a case. In such
instances where the court can dismiss a
case motu proprio on the grounds
mentioned in Sec 1 Rule 9 are the
residual prerogatives.
o This is different from residual powers.
Section 10. Duty of clerk of court of the lower court
upon perfection of appeal.
Once the appeal is given due course by the court, under
Sec 10, it is now the duty of the clerk of court to transmit
the records of the case to the appellate court (CA)
Section 13. Dismissal of appeal.
Prior to the transmittal of the original record or the
record on appeal to the appellate court, the trial court
may motu propio or on motion dismiss the appeal for
having been taken out of time.
- These are the grounds for the dismissal of the
appeal.
164 | c a v e a t e m p t o r
Grounds to dismiss appeal?
- Non-payment of appellate docket and other
lawful fees
- Appeal was taken out of time.
Let’s go to Rule 44.
RULE 44
Ordinary Appealed Cases
- This is the procedure in CA in ordinary appeal
cases under Rule 41.
Section 1. Title of cases. — In all cases appealed to the
Court of Appeals under Rule 41, the title of the case
shall remain as it was in the court of origin, but the party
appealing the case shall be further referred to as the
appellant and the adverse party as the appellee. (1a, R46)
The parties would be the same – plaintiff and defendant.
- But there would be additional description.
- The aggrieved party shall be called appellant.
o Kung defendant ang niappeal, he will be
called defendant-appellant, and the
adverse party would be called plaintiff-
appellee.
o If both filed an appeal, both will be
called appellant.
 Defendant-appellant
 Plaintiff-appellant
Section 2.
Counsel and guardians.
The counsel and guardians ad litem of the parties in the
court of origin shall be respectively considered as their
counsel and guardians ad litem in the Court of Appeals.
When others appear or are appointed, notice thereof shall
be served immediately on the adverse party and filed
with the court. (2a, R46)
- read
Section 3.
Order of transmittal of record.
If the original record or the record on appeal is not
transmitted to the Court of Appeals within thirty (30)
days after the perfection of the appeal, either party may
file a motion with the trial court, with notice to the other,
for the transmittal of such record or record on appeal.
The parties shall be the same, plaintiff-defendant, but
there will be new description
This refers to the transmittal of the records of the case to
the CA.
- Kung wala pa gani matransmit sa CA, the CA
shall order the trial court to forward the case to
the CA.
In the appeal, although pwede ang factual issue i-raise,
the rule is that the finding of facts of the trial court is
given high respect by the appellate court.
Question of law?
- QL exists when doubt or difference arises as to
what the law is on a certain state of facts.
- There is a QL when the parties differ on the
interpretation on a certain provision of law, or
when the parties differ as to what provision of
law should be applied in that case.
- Naglalis sila as to unsa juy meaning sa
provision, or naglalis sila unsa nga provision ang
muapply.
Question of fact?
- QF exists when the doubt or difference arises as
to the truth or falsehood of the alleged facts.
- For example, muigon ang defendant that the
testimony of the witness of the plaintiff should
not be believed because the witness has incurred
inconsistencies. QL or QF?
o This is QF.
o Angay ba tuohan or dili? Tagaan ug
weight or dili? Factual issue.
The factual findings of the TC shall be given high
respect by the appellate court.
- Why?
- Ang trial court ang direct nakakita giunsa
pagtestify sa witness.
o Kung namakak ba ang witness or wala,
appellate court would give weight to the
findings of the trial court Kay ang trial
court man ang nakakita kung ang
wintess nihilak ba, or nagkanga-kanga
ba pagtubag
165 | c a v e a t e m p t o r
 - Ang sa appellate court, igo ra siya nag atubang
sa papers. Wala siya nag atubang sa witness.
o But of course, if there is clear showing
that trial court committed an error, then
the appellate court may reverse the
factual findings of the trial court.
Sec 4
Docket Fees
- One of the grounds for the dismissal
Section 5.
Completion of record.
- Matter of reading
- If there is no assignment of errors, the appeal
shall be dismissed.
- The appellant shall point out to the appellate
court the errors committed by the lower court (in
this case, the errors committed by the RTC).
o Saan ako nagkamali? Char.
- This is very important.
o If the appellant fails to point the errors
committed by the trial court, the appeal
shall be dismissed.
Sec 8
Appellee’s brief
- Filing brief for the appellee is optional. He may
or he may not.

Section 6. Section 10.

Dispensing with complete record. Time of filing memoranda in special cases.

If there are documents or records lacking, but if the Matter of reading

appellate court may already render decision, then the
appellate court (CA) may just dispense with the
submission of the documents.
- Usahay man gud, madugay ug transcribe ang
notes sa stenographer.
- If ang mga kulang nga transcript are
insignificant, pwede ra dili nalang.
As regards habeas corpus, certiorari, prohibition,
mandamus, quo waranto, instead of the appellant’s brief,
the court may require him to submit memoranda.
- Memorandum
o Summary of the evidences and of the
laws.

Sec 7 Section 11.

Appellant’s Brief Several appellants or appellees or several counsel for
each party
Appellant’s brief
- Refers to the summary of the facts of the case, Matter of reading
the issues, the arguments, the discussion, as well
as the law/s applicable. Section 12.
o Mura bag imong isummarize imong Extension of time for filing briefs
arguments.
o You state the evidences of the parties, There could be an extension of time to file appellant’s
ug unsay balaod nga iapply. brief or appellee’s brief.

Section 13.
The most important part of the Appellant’s brief is the Contents of appellant's brief.
assignment of errors.
- What are such errors are committed by the trial Most important part of an appellant’s brief: assignment
court. of errors (b)
o Idiscuss sa appellant’s brief kung asa
ang sayop. Remember: Only those errors assigned shall be
entertained or considered by the appellate court.
166 | c a v e a t e m p t o r
 - EXC: In criminal cases.
o In criminal cases, the appellate court
may review the whole case or consider
errors not assigned.
Section 14.
Contents of appellee's brief
Again, a party who did not file an appeal cannot assign
errors of the judgment because he did not file an appeal.
As far as he is concerned, the entire decision of the court
is correct.
- An appellee who has not also appealed cannot
make assignment of errors in his brief.
o But he can have a so-called counter-
assignment of errors in order to sustain
the judgment of the court.
 Kana bang ―nganu man nga
sakto‖
o Siya ang mangabogar sa court.
o See: Lacampaña vs PCIB (June 30 986)
Sec 15
Questions that may be raised on appeal
Under Rule 41, the issues that could be raised could be
factual issues and legal issues.
What about if there are several defendants, but only one
defendant has filed an appeal. What will happen to other
defendants who did not file an appeal?
- As far as the defendants who did not file an
appeal, they would not be affected by any
changes of the decision,
o EXC: In the case of vicarious appeals.
o Vicarious appeals – where the parties
have commonality or a common interest
in the case. Such that, the appeal of one
is deemed to be the vicarious appeal of
the other.
 Example. D and E are
defendants. Solidary debtors.
Gipabayad sila sa court but only
E filed an appeal. D did not.
Considering that they have
common interest in the case, the
appeal of one will benefit the
other, if the decision is
favorable. Mao nay gitawag nga
vicarious appeal.
 The appeal of one is deemed to
be vicarious appeal of the other,
such as the liabilities of the
appellant and the party who did
not appeal is solidary
 Maricalo Mining Corp
vs Remington (Feb 11,
2008)
So Rule 44 is the procedure for appeals in the CA.
Go back to Rule 42.
RULE 42
Petition for Review From the Regional Trial Courts
to the Court of Appeals
- This is the mode of appeal taken from the
decision of the RTC taken in the exercise of its
appellate jd.
Section 1. How appeal taken; time for filing.
How is the appeal taken?
- The Petition for Review shall be verified.
o TN: Puros dapat verified. Petition for
Review, Petition for Review on
Certiorari. Dapat verified.
How perfected?
- The Petition for Review shall be perfected by
filing a Petition for Review in the CA.
- When?
o Within 15 days from the receipt of the
decision or of the order denying the MR
or MNT.
In Petition for Review, pwede naay extenstion.
- Extension for another 15 days is allowed in a
Petition for Review, provided that the full
amount of the docket fees is paid and the motion
for extension is filed before the expiration of the
15 day reglementary period.
o Pwede i-extend.
- Remember: When you file a Motion for
Extension, it must be filed before the lapse of
the reglementary period.
167 | c a v e a t e m p t o r
 o Kay unsa pamay iextend kung nilapas
na.
o So it must be filed before the expiration,
the appropriate docket fees must be
paid.
- TN: This is different sa Notice of Appeal.
o There is no Motion for Extension to File
Notice of Appeal.
o Extension for a period of 15 days is only
for Petition for Review and Petition for
Review on Certiorari.
 Requirements:
 Verified Motion for
Extension
 Payment of required
docket fees
Section 2.
Form and contents.
Most important:
- Date when the aggrieved party or the appellant
has received a copy of the decision.
- Assignment of Errors
- The petition must be verified, and it shall
contain a certification against forum shopping
o Mura siyag initiatory pleading
Section 3.
Effect of failure to comply with requirements
The failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of the
docket and other lawful fees, the deposit for costs, proof
of service of the petition, and the contents of and the
documents which should accompany the petition shall be
sufficient ground for the dismissal thereof.
These are the technical grounds for dismissal.
- Non-payment of the docket fees
- Proof of service of the petition
o Ang pikas ana, imong tagaan ug proof
of service.
Proof of service
- Unsaon pagprove nga gitagaan nimo ug copy
ang pikas?
o Ang kadtong nagserve, muexecute ug
Affidavit of service.
 How served? Either by personal
service or by registered mail.
Section 4.
Action on the petition.
This is the action of the CA on the Petition.
Remember: Appeal is not a matter of right. It is a matter
of privilege.
- The appellate court (CA or SC) may right away
dismiss the appeal if on its face, the appeal is not
meritorious.
The Court of Appeals may require the respondent to file
a comment on the petition, not a motion to dismiss,
within ten (10) days from notice, or dismiss the petition
if it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the questions
raised therein are too insubstantial to require
consideration
Section 5.
Contents of comment.
- Matter of reading
Section 6. Due course
If upon filing of the comment or after expiration of
period to file comment, and CA finds the appeal to be
meritorious, then the appellate court may give due
course to the petition.
If the record has not yet been forwarded, the CA may
require the transmittal of the records to the CA.
Section 8.
Perfection of appeal; effect thereof.
Perfection?
- Meaning, the filing.
- Upon the timely filing of a petition for review
and the payment of the corresponding docket
and other lawful fees, the appeal is deemed
perfected as to the petitioner.
- When we say ―perfected‖, it covers:
o Filing of the petition (Notice of Appeal
or Petition for Review)
o Payment of docket fees
168 | c a v e a t e m p t o r

The decision of the lower court shall stay the
enforcement or execution.
- EXC: In cases governed by the rule on summary
procedure.
o This is under par b of sec 8
o In cases governed by under Rule on
Summary Procedure, the decision of the
RTC would be immediately executory
without prejudice to further appeal.
 But in other cases, the decision
of the RTC shall stay. The
enforcement, the execution shall
stay.
Section 9.
Submission for decision
Submission of the case for decision.
RULE 43
Appeals From the Court of Tax Appeals and Quasi-
Judicial Agencies to the Court of Appeals
This is the appeal from quasi-judicial bodies or
administrative bodies.
Mode of appeal:
- The mode of appeal is Petition for Review
- How perfected?
o By filing a Petition for Review in the
CA and by paying the docket fees.
- Mode of appeal is not notice of appeal.
o TN: the filing of a wrong mode of
appeal is fatal.
 For example, quasi judicial
bodies. Dba adto sa CA? If your
mode of appeal is Ordinary
Appeal, that is fatal.
What are the quasi-judicial bodies wherein their decision
are appealable to the CA through Petition for Review?
- Civil Service Commission,
o COA and COMELEC are not included.
o CSC, COA and COMELEC are the
Constitutional Commissions.
 Among such Constitutional
Commissions, only the
decisions of the CSC are
appealable to the CA.
 Decision of the COA and
COMELEC has no appeal. But
it can be reviewed in the SC
through Petition for Certiorari
- Central Board of Assessment Appeals,
- Securities and Exchange Commission,
- Office of the President,
o Decision of the president shall be
appealed in the CA
- Land Registration Authority,
- Social Security Commission,
- Civil Aeronautics Board,
- Bureau of Patents, Trademarks and Technology
Transfer,
- National Electrification Administration,
- Energy Regulatory Board,
- National Telecommunications Commission,
- Department of Agrarian Reform under Republic
Act No. 6657,
- Government Service Insurance System,
- Employees Compensation Commission,
- Agricultural Invention Board,
- Insurance Commission,
- Philippine Atomic Energy Commission,
- Board of Investments,
- Construction Industry Arbitration Commission,
and
- voluntary arbitrators authorized by law.
CTA is no longer included.
- Ang decisions sa CTA adto na sa SC.
What about decision of the NLRC?
- Walay labot.
- The decision of the NLRC has no appeal. But it
can be reviewed through Petition for Certiorari
under Rule 65 in CA.
Decision of the Ombudsman
- When we say Office of the Ombudsman, ang
mga tawo nga ikiha sa Ombudsman are those
working in the government. Unya, if a person
works for the government and makacommit ug
crime or act or omission, 2 or 3 cases ang
possible nga iyang atubangon.
o If there is a private complainant or
private offended party, there could be 3
169 | c a v e a t e m p t o r
 cases – administrative, criminal and
civil
o If there is no private complainant, no
private offended party, 2 cases –
administrative and criminal
 For example, nakacommit ug
violation under Anti-Graft and
Corrupt Practices Act. For
example, nanawat siya ug
commission.
 Administrative Liability
 Criminal case for
violation of the Anti-
Graft and Corrupt
Practices Act.
Kung filean ug case ang public officer, government
employee or government official, duha jud na ka-cases –
administrative and criminal.
- And upon filing of the case to the office of the
Ombudsman, lain-lainon jud na siya. Lain ang
case number sa administrative, lain ang case
number sa criminal.
o Ang kadto sa (civil?) adto man ijoin sa
criminal.
o Gawas kung mufile ang private offended
party ug separate civil action.
TN: Ombudsman is not a court. It is an administrative
body.
- This is the same with the Prosecutor’s Office.
- Ang court mao ang Sandiganbayan or ang
Regular courts.
Unsa man ang remedy sa aggrieved party from the
adverse decision of the Office of the Ombudsman?
- As regards the criminal case, the resolution of
the office of the Ombudsman can be reviewed
by SC through petition for certiorari under R65.
o Kay sa criminal case, ang trabaho sa
office of the Ombudsman is only to
conduct preliminary investigation. So,
iyang resolution is not final.
 Mao nang gitawag ug resolution
and not decision.
 Maghearing pa ni sa
Sandiganbayan or sa regular
courts.
o When you say petition for review, it can
only be reviewed by SC on the ground
of grave abuse of discretion.
 Salvador vs Mapa (Nov 28,
2007)
- As regards administrative cases, the decision of
the office of the Ombudsman is a final
adjudication.
o The decision may be appealed before
CA through a Petition for Review under
R43 if the penalty imposed is
suspension over one month or fine
equivalent to more than 1 month salary,
or dismissal from service.
o Where the penalty imposed by the office
of the Ombudsman is only 1 month
suspension or less, or a fine equivalent
to 1 month salary or less, or the
respondent is absolved (acquitted), the
decision of the office of the
Ombudsman is final and not appealable.
Hence, the only remedy is petition for
certiorari in the CA under R65.
 Juson vs Ombudsman (GR
210220 Apr 6, 2016)
o The decision of the Ombudsman in
administrative cases, even if the penalty
imposed is dismissal from service, is
immediately executory
 Whatever may be the penalty, it
is immediately executory. It
could be suspension, dismissal,
it is immediately executory.
 Even if aggrieved party has filed
MR or appeal, it is immediately
executory.
 Immediately executory
meaning pahawa jud ka
dritso.
 Gamallo vs Escandor
(June 21, 2017)
 Dili parehos sa court nga ang
decision, ang enforcement
mustay.
 Lahi sa administrative
bodies. In
administrative bodies, it
is immediately
executory without
170 | c a v e a t e m p t o r
 prejudice to further
appeal.
o On the other hand, when the decision of
the office of the Ombudsman is reversed
(giappeal sa CA and gireverse), and the
respondent is absolved, the decision is
also immediately executory without
prejudice to further appeal by the
aggrieved party.
 PNP-CIDG vs Villafuerte (Sept
18, 2018)
What about the decision of the PRC?
- The decision and final order of the PRC
(Philippine Regulatory Commission) are
appealable to CA under A43
o Layang vs Ramulete (Dec 18, 2008)
Sec 2
Cases not covered.
This Rule shall not apply to judgments or final orders
issued under the Labor Code of the Philippines.
- NLRC decisions not covered
Section 3.
Where to appeal.
An appeal under this Rule may be taken to the Court of
Appeals within the period and in the manner herein
provided, whether the appeal involves questions of fact,
of law, or mixed questions of fact and law.
The appeal shal be taken to the CA on questions of fact,
questions of law or mixed questions of fact and law.
Remember decisions of the RTC in the exercise of its
appellate jd? Bisan pure question of law, CA gihapon.
Through what mode of appeal? Petition for review.
- Under this rule, even if aggrieved party would
only raise pure question of law, CA gihapon. Di
pwede mudiretso sa SC.
Section 4.
Period of appeal.
Period to file appeal
- Uniform. 15 days.
o But, the appellant may file a motion for
extension before the lapse of the 15 day
period to file appeal, and provided that
appellate docket fees and other lawful
fees are paid.
Section 5.
How appeal taken.
How appeal is taken
- Verified Petition for Review
- And naay CAFS
Section 6.
Contents of the petition.
Remember: Material dates rule.
- Date when the aggrieved party has received a
copy of the decision or the denial of the MR
The Neypes Doctrine would apply.
Section 7.
Effect of failure to comply with requirements
Ground for dismissal of appeal?
- Uniform.
o Non-payment of appellate docket fees.
o And another, there is no proof of service
that the adverse party has been furnished
a copy of the decision.
 Proof of service can be proved
through an affidavit of the
person who served or mailed a
copy of the petition.
Section 8.
Action on the petition.
Action of CA once petition for review is filed.
- It may require adverse party or appellee to file a
comment on the petition
- Or, immediately dismiss the case/petition if the
CA finds that the decision is not meritorious on
its face, or patently not meritorious. Because,
appeal is not a matter of right but a matter of
privilege.
Section 9. Contents of comment.
171 | c a v e a t e m p t o r
Reading Petition for review on certiorari, automatic only pure
question of law may be raised.
Section 10. Due course.
Reading The decision of the Sandiganbayan or the CA may be
brought, may be appealed to the SC through petition for
Section 11. Transmittal of record. review on certiorari.
Reading - But there is exc: in criminal cases.
o Where the CA imposes the penalty of
Section 12. Effect of appeal. life sentence or reclusion perpetua
(walay apil death), the mode of appeal
Effect of Appeal shall be Ordinary Appeal
- In administrative cases, despite appeal, the  Ordinary appeal, appeal made
decision of the administrative bodies would be by mere filing of notice of
executory. It will not be stayed. appeal.
o Meaning, there is execution pending  But the mode of appeal nga
appeal, without prejudice to filing an notice of appeal, ordinary
appeal. appeal is only applicable to
o Ang nakanindot lang pud nuon is if criminal cases where the penalty
nadismiss ka sa service in the imposed by the Sandiganbayan
Ombudsman and is reversed on appeal, is life imprisonment or RP.
millionaire.  Kung mubalik na ang
 You will be entitled to all your death, and death ang
salaries, benefits and other giimpose nga penalty,
privileges during the period automatic review.
wherein you were suspended or  Automatic review,
you were dismissed. meaning, even if the
o Remember the effect in administrative accused will not appeal,
bodies. Bar favorite the case shall be
automatically reviewed
RULE 45 by the SC.
Appeal by Certiorari to the Supreme Court  If ordinary appeal, questions to
be raised are factual and legal
This is the mode of appeal to the SC from the decision issues.
rendered by the CA, CTA, Sandiganbayan, and RTC  Example, life sentence
rendered in the exercise of its original jd, wherein or RP ang giimpose sa
appellant raises only pure question of law. CA or Sandiganbayan.
Kung mahitabo nga ang
Petition shall be verified. mode of appeal nga
giavail sa accused is not
Remember: Petition for review and petition for review Notice on appeal but
on certiorari, appellant may ask for the issuance of a petition for review on
TRO and writ of preliminary injunction. certiorari, pwede ra.
- Kay diba ang decision sa administrative bodies o But the accused
immediately executory man? In the petition for cannot raise
review, pwede siya muapply sa CA nga muissue factual issues.
ug TRO or writ of preliminary injunction Only legal
- The same rule applies in Rule 45. questions.

172 | c a v e a t e m p t o r
In a Petition for Review on Certiorari, only legal issues
may be raised. The SC cannot entertain factual issues.
- Factual findings by the CA would be final and
binding upon the SC. Ang ilang iresolve didto,
questions of law ra.
o However, there are instances where SC
entertains questions of facts. But this is
an exception, not the rule.
o Remember PP vs Webb?
 RTC: Jessica Alparo, credible.
 CA: Sakto.
 Ang findings unta sa CA which
affirmed the findings of the
RTC would be final and binding
upon the SC.
 But SC: There are instances
where the SC may touch factual
issues. And the case is one of
them.
 That is if naay klaro nga
sayop ang CA.
 When the conclusion is
grounded entirely on
speculations or conjectures.
 Or when the judgment is based
on misapprehension of facts
 Or when the findings of fact
between the trial court and CA
are conflicting
 Ex: muingon ang RTC
katuohan, muingon ang
CA di katuohan. Naay
conflict. Pwede
mutouch ang SC.
o But TN: This is an exemption.
 GR: The SC will only touch
question of law.
Difference b/w petition for review on certiorari and
petition for certiorari
- In PRC, the enforcement of the decision of the
lower court shall be stayed;
o In PC, the decision or order is not
stayed, unless the higher court will issue
restraining order
- In PRC, the petition shall be filed w/in 15 days
from the receipt of the judgment or order
denying MR or MNT;
o Whereas in PC, petition shall be filed
w/in 60 days from receipt of decision or
order.
- In PRC, the lower court or the judge need not be
impleaded;
o But in PC, the judge or lower court shall
be impleaded as a public respondent.
- In PRC, motion for recon is not a condition
precedent, is not required prior to the filing of
the petition;
o Whereas, in PC, filing of MR is a
condition precedent, it is a pre-requisite.
Section 2.
Time for filing; extension.
Time for Filing
- Petition for Review on Certiorari shall be filed
within a period of 15 days; but the appellant may
file a motion for extension, provided that the full
amount of the docket fees shall be paid.
Section 3.
Docket and other lawful fees; proof of service of
petition.
Grounds for the dismissal
- Non-payment of docket fees
- Proof of service
Section 4.
Contents of petition.
- Matter of reading
Section 5.
Dismissal or denial of petition.
- Matter of reading
Section 6.
Review discretionary
Petition for review on certiorari is not a matter of right.
- Therefore, SC may immediately dismiss the
petition if it finds that on its face, the petition is
not meritorious.
A review is not a matter of right, but of sound judicial
discretion, and will be granted only when there are
special and important reasons thereof
173 | c a v e a t e m p t o r
Section 7.
Pleadings and documents that may be
required; sanctions.
- Matter of reading
Section 8.
Due course; elevation of records.
If the petition is given due course, the Supreme Court
may require the elevation of the complete record of the
case or specified parts thereof within fifteen (15) days
from notice.
- Matter of reading
Section 9.
Rule applicable to both civil and criminal cases.
In criminal cases, the mode of appeal where the CA or
the Sandiganbayan imposes the penalty of life
imprisonment or RP is ordinary appeal.
- But, if accused availed of a petition for review
on certiorari, he can, but he cannot raise factual
issues.
RULE 46
Original Cases
Rule 46-55 puros CA. Rule 56 mao ray SC.
R46 is about cases within the original and exclusive jd of
the CA.
- Are there such cases?
o Yes. It could be original exclusive or
original concurrent with the SC.
Basaha
Section 4.
Jurisdiction over person of respondent, how acquired.
This is about service of the order of the CA.
In petition for certiorari, mandamus or prohibition,
walay summons nga iissue ang CA
- So unsaon pag-acquire ug jd over the person of
the respondent?
o The service of the initial order of the CA
would take the place of the summons.
 The service of the initial order
of the CA would let the CA
acquire jd over the person of the
respondent.
 Or, by his voluntary submission
to the jd of the CA
- The court shall acquire jurisdiction over the
person of the respondent by the service on him
of its order or resolution indicating its initial
action on the petition or by his voluntary
submission to such jurisdiction.
o So walay summons.
Sec 5-7 basahon
- Section 5. Action by the court.
- Section 6. Determination of factual issues.
- Section 7. Effect of failure to file comment.
Sec 47, ato lang sa ni ibutang sa ref. Dritso sa 48

Section 2. RULE 48
To what actions applicable. Preliminary Conference

Original Concurrent jd with the SC, original actions for: There could be pre-trial in CA
- for certiorari - Particularly in those cases wherein the CA have
- prohibition original concurrent or original exclusive jd
- mandamus
- quo warranto Section 1. Preliminary conference. — At any time
during the pendency of a case, the court may call the
Original exclusive parties and their counsel to a preliminary conference.
- Action for annulment of judgment under R47 (a) To consider the possibility of an amicable settlement,
except when the case is not allowed by law to be
Section 3. compromised
Contents and filing of petition; effect of (b) To define, simplify and clarify the issues for
noncompliance with requirements. determination;
174 | c a v e a t e m p t o r
(c) To formulate stipulations of facts and admissions of
documentary exhibits, limit the number of witnesses to
be presented in cases falling within the original
jurisdiction of the court, or those within its appellate
jurisdiction where a motion for new trial is granted on
the ground of newly discovered evidence; and
(d) To take up such other matters which may aid the
court in the prompt disposition of the case. (Rule 7, CA
Internal Rules) (n)
Section 2. Record of the conference. — The proceedings
at such conference shall be recorded and, upon the
conclusion thereof, a resolution shall be issued
embodying all the actions taken therein, the stipulations
and admissions made and the issues defined. (n)
Section 3. Binding effect of the results of the conference.
— Subject to such modifications which may be made to
prevent manifest injustice, the resolution in the
preceding section shall control the subsequent
proceedings in the case unless, within five (5) days from
notice thereof, any party shall satisfactorily show valid
cause why the same should not be followed. (n)
- Sec 1-3, basaha lang.
RULE 49
Oral Argument
Section 1. Preliminary conference. — At any time
during the pendency of a case, the court may call the
parties and their counsel to a preliminary conference.
(a) To consider the possibility of an amicable settlement,
except when the case is not allowed by law to be
compromised
(b) To define, simplify and clarify the issues for
determination;
(c) To formulate stipulations of facts and admissions of
documentary exhibits, limit the number of witnesses to
be presented in cases falling within the original
jurisdiction of the court, or those within its appellate
jurisdiction where a motion for new trial is granted on
the ground of newly discovered evidence; and
(d) To take up such other matters which may aid the
court in the prompt disposition of the case. (Rule 7, CA
Internal Rules) (n)
Section 2. Record of the conference. — The proceedings
at such conference shall be recorded and, upon the
conclusion thereof, a resolution shall be issued
embodying all the actions taken therein, the stipulations
and admissions made and the issues defined. (n)
Section 3. Binding effect of the results of the conference.
— Subject to such modifications which may be made to
prevent manifest injustice, the resolution in the
preceding section shall control the subsequent
proceedings in the case unless, within five (5) days from
notice thereof, any party shall satisfactorily show valid
cause why the same should not be followed. (n)
Matter of reading.
The CA may set the case for oral argument.
RULE 50
Dismissal of Appeal
Sectoin 1.
Grounds for dismissal of appeal.
An appeal may be dismissed by the Court of Appeals, on
its own motion or on that of the appellee, on the
following grounds:
(a) Failure of the record on appeal to show on its face
that the appeal was taken within the period fixed by
these Rules;
(b) Failure to file the notice of appeal or the record on
appeal within the period prescribed by these Rules;
(c) Failure of the appellant to pay the docket and other
lawful fees as provided in section 5, Rule 40 and section
4 of Rule 41; (Bar Matter No. 803, 17 February 1998)
(d) Unauthorized alterations, omissions or additions in
the approved record on appeal as provided in section 4
of Rule 44;
(e) Failure of the appellant to serve and file the required
number of copies of his brief or memorandum within the
time provided by these Rules;
(f) Absence of specific assignment of errors in the
appellant's brief, or of page references to the record as
required in section 13, paragraphs (a), (c), (d) and (f) of
Rule 44;
(g) Failure of the appellant to take the necessary steps
for the correction or completion of the record within the
time limited by the court in its order;
(h) Failure of the appellant to appear at the preliminary
conference under Rule 48 or to comply with orders,
circulars, or directives of the court without justifiable
cause; and
(i) The fact that the order or judgment appealed from is
not appealable. (1a)
175 | c a v e a t e m p t o r
Grounds for dismissal of appeal
- Unsa gani toy number 1? Non-payment of the
docket fees.
- Failure to state the dates.
o Do not forget the dates. It will determine
w/n the appeal was timely filed.
Based on this section, there are 9 grounds.
- Including assignment of errors.
Memorize at least 5. This was already asked in the bar:
- What are the grounds for the dismissal of the
appeal?
Non-payment of the docket fees is a ground for
dismissal. But there are a few cases which allowed the
late payment of the docket fees.
- Reinoso vs CA (July 18, 2011)
Another ground: failure to file appellant’s brief.
- Idismiss man ganig walay assignment or errors.
Section 2. Dismissal of improper appeal to the Court of
Appeals. — An appeal under Rule 41 taken from the
Regional Trial Court to the Court of Appeals raising
only questions of law shall be dismissed, issues purely of
law not being reviewable by said court. Similarly, an
appeal by notice of appeal instead of by petition for
review from the appellate judgment of a Regional Trial
Court shall be dismissed. (n)
An appeal erroneously taken to the Court of Appeals
shall not be transferred to the appropriate court but shall
be dismissed outright. (3a)
Mode of appeal of the decisions from RTC in the
exercise of its original jurisdiction involving questions
of law?
- Petition for Review on Certiorari
Pananglitan, notice of appeal imong gifile. Unya pure
question of law ra. Walay factual issue.
- Under Sec 2, it will be dismissed. It is fatal.
Pananglitan, pure question of law. Then, the RTC
rendered the decision in the exercise of its original
jurisdiction.
- Mode of appeal? SC, Petition for review on
certiorari.
- Suppose, not petition for review on certiorari is
availed. Petition for Review ang mode of appeal
filed in CA. What will happen?
o It will be dismissed.
Those criminal cases decided by the RTC wherein the
accused are public officers who are charged with a crime
committed in connection of the performance of their
duties, the decision of the RTC shall be appealed in the
Sandiganbayan.
- If appeal is filed in CA instead of the
Sandiganbayan, the appeal shall be dismissed.
o Under the last par of Sec2, the CA will
not forward it to the Sandiganbayan.
o An appeal erroneously taken to the
Court of Appeals shall not be transferred
to the appropriate court but shall be
dismissed outright.
o See: PP vs Balaba (July 17, 2009)
Section 3.
Withdrawal of appeal.
An appeal may be withdrawn as of right at any time
before the filing of the appellee's brief. Thereafter, the
withdrawal may be allowed in the discretion of the court.
(4a)
Once an appeal is taken, the appellant cannot withdraw it
in order to avail of other remedies such as MR or MNT.
- If appellant would withdraw his appeal, the
decision would become final and executory.
o Example: On the 5th day, defendant filed
a Notice of Appeal. Day after, thought
that filing MR is better kay basin
mausab ang huna2 sa judge. Iyang
giwithdraw iyang notice of appeal kay
wala paman kuno nahuman ang 15 day
period.
o So, iyang giwithdraw, gigrant sa court.
Unya nifile dayon siya ug MR kay wala
paman nahuman ang iyang 15 day
period. Pwede na? No.
- The filing of appeal would close the door for the
filing of MR or MNT.
- As far as appellant (the party who filed the
appeal) is concerned, his remedy is
automatically transferred to the appellate court.
176 | c a v e a t e m p t o r
 RULE 51
Judgment Second motion for reconsideration is not allowed.
- But we the prohibition about the filing of a 2 nd
Sec 1-5 readings MR is applicable only to a judgment or final
- Section 1. When case deemed submitted for order.
judgment o A 2nd MR may be allowed of an
- Section 2. By whom rendered. interlocutory order.
- Section 3. Quorum and voting in the court. - In the SC, a 2nd MR is allowed.
- Section 4. Disposition of a case. o But mananghid sa ka nga mufile ka ug
- Section 5. Form of decision. 2nd MR.
- In lower courts, CA, MTC, RTC, 2nd MR is not
Sec 6 allowed.
Harmless Error Rule o MR of a judgment or a final order.

What is the Harmless Error Rule? RULE 53

- The appellate court will not reverse, or touch the New Trial
error committed by the lower court in admitting
an evidence if the error committed does not There could also be a motion of NT on the ground of
affect the substantial rights of the affected party newly discovered evidence.

Section 8. Matter of reading

Questions that may be decided.
RULE 54
Only those assigned errors shall be touched by the Internal Business
appellate court. (This is the importance of assignment of - Pwede ra ni di basahon
errors)
- Unless, it pertains to jd over the subject matter. RULE 55
Publications of Judgments and Final Resolutions
No error which does not affect the jurisdiction over the - Pwede ra di basahon
subject matter or the validity of the judgment appealed
from or the proceedings therein will be considered RULE 56
unless stated in the assignment of errors, or closely
related to or dependent on an assigned error and properly These are the original cases cognizable by the SC, either
argued in the brief, save as the court may pass upon its original exclusive or concurrent jd.
plain errors and clerical errors.
What are these cases?
Errors that may be entertained by the appellate court Section 1. Original cases cognizable.
even if not assigned as error? - Only petitions for certiorari,
- Errors pertaining to jd over the subject matter prohibition, mandamus, quo warranto, habeas
- Validity of judgment corpus, disciplinary proceedings against
- Plain errors members of the judiciary and attorneys, and
- Clerical errors cases affecting ambassadors, other public
ministers and consuls may be filed originally in
RULE 52 the Supreme Court.
Motion for Reconsideration
Section 2. Rules applicable.
Section 2. Second motion for reconsideration.
No second motion for reconsideration of a judgment or - Matter of reading
final resolution by the same party shall be entertained
177 | c a v e a t e m p t o r
Section 3. Mode of appeal.
If SC, the only mode of appeal is Petition for Review on
Certiorari
- Exc: In criminal cases wherein ordinary appeal
is available.
Section 5. Grounds for dismissal of appeal.
The appeal may be dismissed motu proprio or on motion
of the respondent on the following grounds:
(a) Failure to take the appeal within the reglementary
period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs;
(d) Failure to comply with the requirements regarding
proof of service and contents of and the documents
which should accompany the petition;
(e) Failure to comply with any circular, directive or
order of the Supreme Court without justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the
Supreme Court.
Section 6. Disposition of improper appeal.
As mentioned, if pure question of law and filed in the
CA, it will be dismissed.
- In Sec 6 R56, kung gidristo ug file sa SC ang
decision sa RTC through a Petition for Review
on Certiorari, unya naay giinclude nga factual
issues, under the 2nd par, pwede irefer sa CA.
o An appeal by certiorari taken to the
Supreme Court from the Regional Trial
Court submitting issues of fact may be
referred to the Court of Appeals for
decision or appropriate action.
o The determination of the Supreme Court
on whether or not issues of fact are
involved shall be final.
Section 7. Procedure if opinion is equally divided.
- Matter of reading
We are done with appeal.
- Appeal is one of the post-judgment remedies.
o Kana kung naa nay decision.
- Other: MR or MNT
o But MR or MNT should be done before
filing an appeal.
Besides appeal, MNT or MR, there is another way sa
pag-review sa case – it is the Reopening of proceedings.
- This is based on jurisprudence.
RULE 38
Relief from Judgments, Orders, or Other
Proceedings
Rule 38 is the remedy of the aggrieved party when the
decision is final and executory.
Asa man ifile ang petition for relief from a judgment or
order?
- The same court where the case where decision
has become final and executory.
The subject for a petition for relief could only be a
judgment or order of the court, or an order from the
denial of appeal.
- Where to file petition for relief from judgment
or an order?
o The same court where the case whose
decision has already become final and
executory is filed.
Grounds for petition for relief from judgment or order?
- On the ground of FAME
o Asa gani to mahimong ground ang
FAME?
 MNT
 Motion to Set Aside Default
Order
 Petition for Relief from
Judgment or Order
- Requirements if there is FAME?
o (1) Motion or decision shall be verified
o (2) In the motion, the facts constituting
FAME must be alleged. They must be
set out in the petition or in the motion
o (3) It must be alleged in the petition or
motion the meritorious defense or cause
of action
 Meritorious defense if ang
defendant ang nifile
178 | c a v e a t e m p t o r
  Cause of action if ang plaintiff
ang nifile
o (4) Attached to the petition or motion is
the affidavit of merits.
 Affidavit of merits?
 An affidavit alleging the
facts constituting
FAME and the facts
constituting meritorious
defense or cause of
action.
- Since the for Petition for Relief from Judgment
is FAME, the 4 requisites apply
Section 2. Petition for relief from denial of appeal.
- A petition for relief is also available in case of
denial of appeal
o For example, defendant, through
counsel, received a copy of the adverse
decision. Nasakit man ug covid,
nahospital, wala nakafile ug Notice of
Appeal. Pagfile sa notice of appeal, it
was denied because it was filed out
time. What is the remedy of the
defendant from the denial of his appeal?
 It could be petition for relief.
But not from judgment. It was a
petition for relief from the order
denying his appeal.
Pananglitan, si defendant wala nasakit, wala giilad. If
nakadawat ang iyang lawyer ug copy sa decision. But
tungod sa kadaghan sa cases, nakalimot ug appeal.
Nafinal and executory. Diha na siya nakahinumdom nga
wala siya nakafile ug Notice of Appeal sa dihang
nakadawat na siya sa Motion for Execution. Nifile dayon
ug Petition for Relief from Judgment. Pwede ba na?
- Petition for relief is an equitable remedy. It is
not a substitute for lost opportunity to file appeal
on the ground of inexcusable negligence.
o Kana rabang nakalimot ka kay daghan
kaayo kag cases cannot be considered as
excusable negligence.
o The fault of the lawyer is considered the
fault of the client.
- So, petition for relief is an equitable remedy and
is only allowed in exceptional cases from final
judgments or orders where no other remedy is
available. It will not be entertained when the
proper remedy is appeal
o Palmarez vs Jimenez (?? PHIL 773)
o Fajardo vs Bayuna (98 PHIL 695)
Section 3.
Time for filing petition; contents and verification.
- Very important
This is about the period when to file petition for relief.
- Kaning petition for relief, ang decision ani kay
nahimo nag final and executory.
- Petition for relief must be filed within 60 days
after the petitioner learns of the judgment,
final order, or other proceeding to be set aside,
and not more than six (6) months after such
judgment or final order was entered, or such
proceeding was taken, and must be accompanied
with affidavits showing the fraud, accident,
mistake, or excusable negligence relied upon,
and the facts constituting the petitioner's good
and substantial cause of action or defense, as the
case may be.
o So 60 days after learning, and within 6
months from entry of judgment.
 Entry of judgment?
 Date of finality is
automatically
considered date of
entry.
o These two periods must concur and
mandatory.
 This is not extendible and never
interrupted, even if a Petition
for Certiorari is filed
 These periods cannot be
interrupted, and cannot be
extended.
 There is no such thing as motion
for extension of time to file
Petition for Relief from
judgment or Petition for Relief
from Order Denying appeal.
Petition for relief is not available if the aggrieved party
has already filed an MR or MNT.
- Francisco vs Puno (Oct 23, 1981)
179 | c a v e a t e m p t o r
 - And this is available only when the judgment wala nakafile ug answer
has become final and executory, but within the or wala nakaattend sa
period of 60 days after learning, and within 6 Pre-Trial Conference
months from entry of judgment. kay nasakit siya. Giilad
siya sa plaintiff
Section 4. (giingnan ayaw nalag
Order to file an answer. tunga kay wala na,
husay na, unya wa jud
When a petition for relief is filed, the court shall order siya nitunga. Extrinsic
the adverse party to file an answer. fraud that prevented the
- Not a summons but an order to file an answer. defendant from
presenting his evidence
Section 5. or case in court).
Preliminary injunction pending proceedings. Petition for Relief.
 Gigrant sa court iyang petition.
Considering that the order is considered final and Gi-set aside ang judgment.
executory, it is possible nga naa nay execution of Unsay sunod? Presentation of
judgment. evidence.
- In the petition, the aggrieved party may pray for  The petitioner would
the issuance of TRO or restraining order. now be allowed to
present his evidence.
In a petition for relief, there is no default.
- W/n adverse party has filed an answer, the court So kung igrant, there will be 2 hearings.
has to conduct a hearing to determine w/n the - Hearing on the petition itself (hearing on the
petition is meritorious. merit of the petition for relief)
o But of course, if the adverse party will - Hearing on the reception of the evidence of the
not file an answer, it is possible that the petitioner
petition will be granted.
o If the petition for relief is granted, then Kung ang petition for relief is over the denial of the
there could be another hearing (if it is appeal, walay hearing. First step ra. (See Sec 7)
petition for relief from judgment) which
is for the reception of evidence. The order of the court granting or denying the petition is
 Kani man gung petition for not appealable.
relief from judgment, possible - Kung dili available ang remedy of appeal, what
ni siya nga ang court nirender is the remedy? Petition for Certiorari on the
ug decision kay wala nakafile ground of grave abuse of discretion (kana kung
ug answer ang defendant. naay grave abuse of discretion)
 Or, nakafile ug answer pero
possible wala nakatunga during Ablihan natong ref. Rule 47.
pre-trial.
 Remember if the RULE 47
defendant fails to be Annulment of Judgments of Final Orders and
present during pre-trial, Resolutions
the plaintiff may present
his evidence ex parte? This is another remedy wherein the decision has already
 Unsa man ang buhaton become final and executory.
sa defendant kung gusto
jud siya mupresent ug Bar favorite.
evidence? Unya ang
180 | c a v e a t e m p t o r
The petition for relief is to be filed in the same court
where the case is pending (nga ang decision nahimong
final and executory).
- Lahi ang annulment of judgment.
- Ang annulment of judgment adto ifile sa higher
court.
o If the decision that has become final and
executory is rendered by the MTC, the
petition for the annulment of judgment
shall be filed in the RTC
o If the judgment that has become final
and executory was rendered by the RTC,
the petition for annulment of the
decision shall be filed in the CA
Section 1. Coverage.
This Rule shall govern the annulment by the Court of
Appeals of judgments or final orders and resolutions in
civil actions of Regional Trial Courts for which the
ordinary remedies of new trial, appeal, petition for relief
or other appropriate remedies are no longer available
through no fault of the petitioner
This is about the decision of the RTC that has become
final and executory.
- Petition for annulment of judgment shall be filed
with the CA
Annulment of judgment is not a substitute to lost
opportunity to file appeal.
- This is the same with petition for relief, petition
for certiorari.
In a Petition for the Annulment of Judgment, the
aggrieved party was not able to file appeal, MNT, MR,
petition for relief, without his fault.
Section 2. Grounds for annulment. — The annulment
may be based only on the grounds of extrinsic fraud and
lack of jurisdiction.
Grounds:
- Extrinsic fraud
- Lack of jurisdiction
o When can you say that the court has no
jd?
 Remember the elements of jd:
The court must have:
 Jd over the subject
matter
 Jd over the person of
the defendant
o Through proper
service of
summons
o Through
voluntary
appearance
 And others..
- Denial of Due Process
o This ground is based on jurisprudence
o This is the ruling in Benatiro vs CA
(July 30, 2008)
Again, annulment of judgment is an equitable remedy.
This is not a substitute for lost opportunity to file appeal.
Considering that the judgment has become final and
executory, it is possible that the judgment is already
executed (na-enforce na)
- SC: An action for annulment of judgment may
be availed of even if the judgment to be annulled
had already been fully executed or implemented.
o Islamic Da Wa Counsel of Ph vs CA
(Sept 29, 1989)
The remedy of annulment of judgment is only available
under certain exceptional circumstances because this is
adverse to the concept of immutability of final judgment.
- Remember Doctrine of Immutability of final
judgment?
- So annulment of judgment is not available if the
remedy is appeal, MNT, MR or petition for
relief or other appropriate remedies.
Antonino vs RD of Makati City (June 20, 2012)
- SC: Apart from the requirement that the
existence of "extrinsic fraud" or "lack of
jurisdiction" should be amply demonstrated, one
who desires to avail this remedy must convince
that the ordinary and other appropriate remedies,
such as an appeal, are no longer available for
causes not attributable to the petitioner.
Anchita vs Anchita (March 4, 2004)
- If the ground for the petition for annulment of
judgment is fraud, the petition must allege that
181 | c a v e a t e m p t o r
 he had not availed of the remedies of new trial,
appeal, or petition for relief from judgment, and
must justify the failure to avail of such remedies.
o Kinahanglan nga naay justification
o I-allege jud sa petition nga wala siya
nakaavail sa new trial, appeal or wala
nakafile ug petition for relief from
judgment without his fault, and the
reason why he was not able to avail of
such remedies.
- However, if the ground is lack of jurisdiction,
justification for non-availment of NT, appeal, or
petition for relief from judgment is not
necessary.
o Ibutang ra nimo nga wala ka nakaavail
ana. But justification is not necessary.
- Pero if ang imong grounds are extrinsic fraud, as
well as lack of jd, there is no need for the
petitioner to state the justification.
o Why? Kay naa may lack of jd.
o If naay lack of jd, there is no need to
state the justification for the non-
availment of NT, appeal, or petition for
relief from judgment
Section 3.
Period for filing action.
When to file petition for annulment of judgment?
- If based on fraud, within 4 yrs from discovery
- If based on lack of jd, before action barred by
laches or estoppel
o Prescription is 10 yrs under Art 1144
CC.
o TN: Laches is different from
prescription.
 Pwede nga mafile nimo within
10 yrs but the petitioner cannot
give reason nga nadugay siya.
Mao nay gitawag laches.
Unreasonable delay.
Unexplained delay.
 The action might not have
prescribed, but dismissed on the
ground of laches.
Section 4. Filing and contents of petition.
Contents of the petition. It must be verified.
Naa man ni extrinsic fraud.
- Remember FAME? The 4 requisites for FAME
must be complied
o Verification
o Meritorious defense
o Affidavit of merits
o The facts constituting extrinsic fraud
must be alleged or set out in the motion
or petition
But if imong ground is lack of jd, the requisites for
FAME is not needed.
- But, the petition must be verified.
Section 5. Action by the court.
It could be dismissed outright.
- But if there is prima facie merit in the petition,
meritorious on its face, the court may issue
summons.
- In petition for relief, there is no summons. But
here (annulment of judgment), there is.
Section 6. Procedure. — The procedure in ordinary civil
cases shall be observed. Should trial be necessary, the
reception of the evidence may be referred to a member
of the court or a judge of a Regional Trial Court.
Section 7. Effect of judgment.
If the judgment is annulled, there is no more judgment.
- If the ground for the annulment is due to lack of
jd, then the case may be filed or re-filed with the
proper court.
- If it is on the ground of extrinsic fraud, remedy
is not re-filing after the annulment. Remedy is
the holding of trial for the reception of evidence.
Section 8. Suspension prescriptive period.
This is about the re-filing.
- The prescriptive period is deemed suspended by
the filing original action.
Section 9. Relief available.
The court may award damages.
182 | c a v e a t e m p t o r
Suppose, the decision has been executed prior to the
filing of the petition for annulment.
- The court may order restitution.
Section 10. Annulment of judgments or final orders of
Municipal Trial Courts.
This is about annulment of the judgment.
- An action to annul a judgment or final order of a
Municipal Trial Court shall be filed in the
Regional Trial Court having jurisdiction over the
former.
The defendant has been declared in default.
- Before the court renders its decision, what is his
remedy?
o Motion to set aside order of default
 Ground: FAME
 TN: Verification, Facts and
circumsntances constituting
FAME, Meritorious defense,
Affidavit of merits
- If the court has already rendered a decision, but
it has not yet become final and executory,
remedies?
o Motion for New Trial
 TN: Verification, Facts and
circumsntances constituting
FAME, MD, Affidavit of merits
o Motion for Reconsideration
o Appeal
 If grants different relief;
excessive relieve; fails to prove
material allegatios
- If the decision has already been rendered and the
same has already become final and executory.
Remedies?
o Petition for Relief (R38)
 TN: Verification, Facts and
circumsntances constituting
FAME, MD, Affidavit of merits
o Annulment of Judgment (R47)
 Lack of jd; Extrinsic fraud
o Petition for Certiorari (R65)
 But this is only available if there
is lack of jd or grave abuse of
discretion on the part of the
court.
November 20, 2020
RULE 39
Execution, Satisfaction and Effect of Judgments
Execution is the remedy for the enforcement of
judgment.
- It is usually done through filing of motion for
execution after the decision has become final
and executory
The decision is useless if not executed.
- SC: Litigation must end and terminate sometime
and somewhere. And it is essential to an
effective administration of justice that once a
decision becomes final, the issue or cause laid
thereon shall be laid to rest.
o SC: Ramos vs Cungbong (510 PHIL
277)
- In another case, according to SC: Hernan vs
Sandiganbayan (Dec 5, 2017)
o Every litigation must come to an end
once a judgment becomes final
executory and unappealable.
o Just as a losing party has the right to file
an appeal within the prescribed period,
the winning party also has the
correlative right to enjoy the finality of
the resolution of his case by the
execution and satisfaction of the
judgment which is the ―life of the law.‖
Sec 1
Execution upon judgments or final orders.
This is what you call mandatory execution.
Par 1: If there is no appeal
Execution shall issue as a matter of right, or motion,
upon a judgment or order that disposes of the action or
proceeding upon the expiration of the period to appeal
therefrom if no appeal has been duly perfected.
- IOW, once the decision has become final and
executory, after the lapse of period to file
appeal, execution becomes a matter of right.
- IOW, it is the ministerial duty of the court to
issue a writ of execution upon motion.
183 | c a v e a t e m p t o r
 o TN: Court cannot motu proprio issue a
writ of execution. There has to be a
motion for execution.
o That is if defendant will not comply
despite the rendition of the decision.
 Kay for example, naay decision.
Nya pabayron. Paghuman niyag
dawat sa decision, nibayad
dayon siya. So no need to file
motion for execution.
 If defendant did not comply
with the decision of the court,
there has to be a motion for
execution for the court to issue a
writ of execution.
o Considering that it is a matter of right, if
the court denies motion for execution,
the remedy of the plaintiff is mandamus
 Why? It is a matter of right.
Par 2: There is an appeal
If there is an appeal, but the appeal has been finally
resolved, the execution may be made in the court of
origin, on motion of the winning party.
As discussed, if muappeal ang party, the records of the
case will be sent to the appellate court.
- Pananglitan, plaintiff appealed the adverse
decision all the way to the SC. For example,
MTC decision affirmed by RTC. RTC decision
appealed and affirmed by the CA. CA appealed
and affirmed by the SC.
o Which court should the motion for
issuance of writ of execution be filed?
 In the court of origin (court a
quo)
- If the record of the case has not yet been
returned to the court of origin?
o Unsaon man pagkahibaw nga
nadesisyonan na, naresolve na ang
appeal?
o Attached to the motion for execution
should be the certified true copy of the
judgment or final order and the entry
of judgment or the final order.
 Remember entry of judgment?
Kanus-a gani naay EJ?
 Upon finality of the
decision. Date of
finality is the date of
entry.
o And a copy of the resolution should be
furnished to the adverse party
 This is basic. Sa dili pa ifile sa
adverse party, tagaan sa ug copy
ang adverse party.
Last Par:
- Suppose, the court of origin denies the motion
for execution? What is the remedy of the
winning party or movant?
o As discussed, if no appeal is filed, if
motion for execution is denied, remedy
is mandamus.
o However, if appeal has been filed and
finally resolved, when the motion for
execution is denied by the court of
origin, the remedy of the winning party
is not mandamus.
 The remedy is to file a motion
before the appellate court,
asking the appellate court to
direct the court of origin to
issue the writ of execution.
- The appellate court may, on motion in the same
case, when the interest of justice so requires,
direct the court of origin to issue the writ of
execution.
o This is the remedy if the motion for
execution is denied an appeal has been
taken.
Are there instances that a judgment, even if the same is
already final and executory, could not be enforced by
execution? Yes. SC has provided the exceptions.
- GR: Judgment is enforceable by execution once
it becomes final and executory.
- EXC: (Wolfson vs Del Rosario 46PHIL41)
o (1) When there has been a change in the
situation of the parties which makes the
execution inequitable.
o (2) When it appears that the controversy
has never been submitted to the
judgment of the court
o (3) When the judgment has been
novated by subsequent agreement of the
parties
184 | c a v e a t e m p t o r
  For example, nagbuhat ug
compromise agreement after
decision
 As discussed,
compromise agreement
may be entered into by
the parties even if there
is already a decision.
 Nothing can prevent the
parties to come up with
compromise agreement.
 If there has been a
compromise agreement
between the parties,
then that could prevent
execution of the
decision
o (4) When it appears that the writ of
execution was improvidently issued
 The requirements or requisites
for the issuance of a writ of
execution are not followed
 One of the requisites is
that there must be a
motion to be filed.
o (5) When the writ of execution is
defective in substance
o (6) When the writ is issued against the
wrong party
o (7) When the judgment writ debt has
been paid or satisfied
Section 2.
Discretionary execution.
This is execution pending appeal.
- As discussed, when there is an appeal, the
execution of the decision shall be stayed
(mapundo, pugngnan sa)
- There are however instances wherein decision,
even pending appeal, could be executed.
o This is called execution pending
appeal or discretionary exeution.
Under Sec2 (a)Execution of a judgment or final order
pending appeal:
- On motion of the prevailing party, the trial court,
while it has jurisdiction over the case and is in
possession of either the original record or the
record on appeal may, in its discretion, order
execution of a judgment or final order even
before the expiration of the period to appeal.
- Remember the residual powers of the court
(Rule 41 Sec9)
o Trial court may issue a writ of execution
on appeal, provided it still in possession
of the records of the case.
o If the records have been forwarded to
the appellate court, then the appellate
court will be the one who will issue the
writ of execution.
- Execution pending appeal may only be granted
if there are good reasons for the issuance of the
writ
o Good reasons shall be mentioned in the
special order after due hearing.
o In the codal provision, there is no
mention as to what are good reasons.
But jurisprudence cites some:
 (1) Proven insolvency of
debtor. (Lao vs Mencias
21SCRA1021)
 This could be ground
for the issuance of an
execution pending
appeal
 (2) When the subject of the
case are perishable goods (Ong
vs CA 203 SCRA 38)
 When the subject of the
judgment will perish or
deteriorate during
pendency of appeal
 (3) Failure to post supersedeas
bond (especially ejectment
cases) and the deposit monthly
rental in ejectment cases
 Decisions in ejectment
cases are immediately
executory.
 How to stay? (Sec 19,
R70)
o Defendant has
to file an appeal
o He has to post
supersedeas
bond
185 | c a v e a t e m p t o r
 o He has to make
periodic
deposits before
the RTC while
the case is
pending appeal
Under Sec 2 (b) Execution of several, separate or
partial judgments. — A several, separate or partial
judgment may be executed under the same terms and
conditions as execution of a judgment or final order
pending appeal.
- The conditions for the issuance of writ of
execution pending appeal apply to several,
separate or partial judgment
- The execution pending appeal may be stayed or
may not be implemented if the adverse party
would post supersedeas bond.
o Purpose of supersedeas bond: The same
shall answer the judgment of the court in
case the defendant, for example, would
lose the case.
 Ang hinungdan man gud nganu
ang plaintiff mufile ug motion
for execution pending appeal is
kay nagtuo siya nga ang
defendant dili makasatisfy sa
judgment. Mao na nga mufile
siya ug execution pending
appeal
 The defendant, in order to stay
the execution, pwede mufile ug
supersedeas bond which will
answer if ever the defendant
fails to satisfy the judgment
once the higher court will affirm
the decision or once the appeal
is resolved.
Section 3.
Stay of discretionary execution.
Discretionary execution issued under the preceding
section may be stayed upon approval by the proper court
of a sufficient supersedeas bond
- Purpose of supersedeas bond: The same shall
answer the judgment of the court in case the
defendant, for example, would lose the case.
- Nagtuo man gud siya nga ang defendant dili
makabayad.
- If ever the defendant fails to satisfy the
judgment once the higher court would affirm the
decision, supersedeas bond shall answer.
Sec 2 is about discretionary execution.
Section 4.
Judgments not stayed by appeal
- These are instances where execution is
mandatory even if the case is pending appeal
- IOW, the judgment is immediately executory
without prejudice to further appeal
- In what cases?
o Decision in injunction cases,
 Kanang pugngan.
o receivership,
o accounting and
o support,
 kung mufile ka ug support, and
defendant would file an appeal,
he has to comply with the order
of the court despite the appeal
taken by him; it is immediately
executory.
o and such other judgments as are now or
may hereafter be declared to be
immediately executory
In injunction:
- For example, court issues TRO. After,
preliminary injunction. After trial, the trial court
ordered the injunction to be permanent. He filed
an appeal.
o Despite the appeal, the decision will be
stayed. I-enjoin gihapon siya.
o Executory siya ha. Dili siya mapugngan
sa adverse party.
On the other hand, when the appellate court would
reverse the decision of the trial court:
- For example, will set aside injunction order. The
order of the trial court setting aside the order
also cannot be stayed. It is also immediately
executory, without prejudice to further appeal.
o Santiago vs Vasquez (Jan 27, 1993)
o SC: Judgment in an injunction shall not
be stayed by appeal, and the execution
186 | c a v e a t e m p t o r
 of a judgment dissolving or setting aside
the writ of preliminary injunction shall
not also be stayed by appeal, and so with
the TRO.
o So kung gidisolve, immediately
executory pud.
Section 5. Effect of reversal of executed judgment
In the event that the court issues a writ of execution
pending appeal but the decision of the court is later on
reversed by the appellate court, there has to be restitution
or reparation.
Section 6. Execution by motion or by independent action
- Take note of this.
There are 2 ways of executing a final and executory
judgment:
- (1)By mere filing for motion for execution
within five (5) years from the date of entry of
judgment
o Entry of judgment – date of finality shall
also be the date of entry
o The decision can be executed by mere
filing of motion for execution
- (2)By filing a case
o After the lapse of 5 yrs after decision,
the decision could no longer be executed
by filing a motion for execution.
 What to do? File a case or an
action for the execution of the
judgment.
 The COA is the
enforcement of the
decision.
 Example. P filed a case to D for
the collection of 1M unpaid
loan. COA is the non-payment
of the loan. Nakadaog si P, pero
wala nakafile ug motion for
execution. Natog man. Diha na
nakamata after lapse of 5 yrs.
Unsaon pag paexecute sa
decision? If mufile ug motion
for execution, the same has to
be denied.
 What should P do? File a case
or action.
 COA? Enforcement of
decision of a collection
case.
 This is provided that the 10yr
period has not elapsed.
 If 10 yrs has lapsed, the
decision could no
longer be executed even
by action.
o Where to file the case?
 The Court is not consistent. But,
according to the latest decision
of the SC in the case of Anama
vs City Bank (GR 192048 Dec
13, 2017)
 SC: As an action to revive
judgment raises issues of
whether the petitioner has a
right to have the final and
executory judgment revived and
to have that judgment enforced
and does not involve recovery
of a sum of money, we rule that
jurisdiction over a petition to
revive judgment is properly
with the RTC. It is considered
as incapable of pecuniary
estimation.
 Possible nga ang case
gidesisyonan sa MTC
pero wala maexecute
within 5 yrs. The
complaint for the
revival of judgment
shall be filed in the
RTC.
 Why? An action for
revival of judgment is
considered incapable of
pecuniary estimation.
o SC: Miranda vs Miranda (G.R. No.
179638, July 8, 2013)
 An action for revival of
judgment is a new and
independent action.
 Magbayad nasad kag
docket fees, and you
187 | c a v e a t e m p t o r
 have to comply with all
the requirements of an
initiatory pleading.
 It is different and distinct from
the original judgment sought to
be revived or enforced. As
such, a party aggrieved by a
decision of a court in an action
for revival of judgment may
appeal the decision, but only
insofar as the merits of the
action for revival is concerned.
 The original judgment, which is
already final and executory,
may no longer be reversed,
altered, or modified.
The 5yr or 10yr period do not apply to special
proceedings such as:
- Land registration and cadastral cases where right
to possession does not prescribe
o SC: Rodel vs Benedicto (25 SCRA 127)
- Judgment for support
o Judgment for support can never be
dormant. The amount can be changed
from time to time, depending on the
capacity of giver and needs of the
receiver.
o It can be executed by mere motion
despite the lapse of 5yr period.
o SC: Canonisado vs Benitez (127 SCRA
610)
Section 7.
Execution in case of death of party
- Execution naman ni, so decision has become
final and executory.
(a) In case of the death of the judgment obligee
(plaintiff), upon the application of his executor or
administrator, or successor in interest;
(b) In case of the death of the judgment obligor, against
his executor or administrator or successor in interest, if
the judgment be for the recovery of real or personal
property, or the enforcement of a lien thereon;
(c) In case of the death of the judgment obligor, after
execution is actually levied upon any of his property, the
same may be sold for the satisfaction of the judgment
obligation, and the officer making the sale shall account
to the corresponding executor or administrator for any
surplus in his hands.
Rule:
- If it is the plaintiff who died, the motion for
execution shall be filed by the executor or
administrator.
- In case it is the judgment obligor, the execution
can be done against the executor or
administrator, or against the estate.
- If it is purely money claim, against the estate.
Section 8. Issuance, form and contents of a writ of
execution.
This is about the form of a writ of execution
There is a pro forma writ of execution.
- Ang muprima ani kay ang clerk of court. There
is a pro forma form.
- In the writ of execution, i-qoute ra ang
dispositive portion.
o The judge issues an order granting or
denying motion for execution.
o If the motion is granted, ang muissue sa
writ ang clerk of court ra.
Section 9. Execution of judgments for money, how
enforced
If the judgment is for money, either in a contract of loan
or sale.
- Pabayron ug money
Unsay buhaton if di mubayad?
- Adtoon siya sa sheriff. Ang sheriff ang maningil
niya.
- Unsaon pagbayad? It could be through cash or
certified bank check.
o Dili pwede personal check.
o Aron siguro jud nga dili mubounce.
- Asa ihatag?
o Sa plaintiff.
o If wala ang plaintiff, ang sheriff ang
tagaan.
o Ang sheriff muturnouver ana sa Clerk of
Court (COC). COC will then turn it over
to the plaintiff.
188 | c a v e a t e m p t o r
 - Just imagine kung million ang utang, dako
kaayo.
Pananglitan dili mubayad or dili kabayad kay walay
kwarta, walay cash or walay bank deposit?
- Unsay buhaton? Ipadeclare ug contempt?
o Not contempt. For money judgment,
contempt is not a remedy.
- What to do?
o Adtoon sa sheriff.
o Kung walay kwarta, ipapreso? Dili
pwede. Walay preso.
o Kung dili kabayad, see (d).
 Ang sheriff, wala man kay
kwarta, birahon imong property.
―Sheriffon.‖
 Pangkuhaon imong ref,
imong sakyanan, etc.
 Proper term: Levy on
Execution
 Levy is the act whereby
the sheriff sets apart or
appropriates for the
purpose of satisfying
the command of the
writ, a part or the whole
of the judgment.
 Levy is just the
preliminary step. After
the levy, there is an
auction sale.
 Ang sheriff, ang iyang nalevy
nga property, dili to dalhon sa
balay sa plaintiff.
 Mangita ug lugar ang
sheriff kung asa niya
dalhon kay isubject to
auction sale.
 Ibaligya sa highest
bidder.
 So, levy on execution, then
auction sale.
o If walay personal property. Walay auto,
tv, ref. Pero naay yuta.
 Pwede ang yuta.
 Levy can be made on personal
properties, if any. Then, real
properties.
 Unsaon paglevy sa real
properties?
 Padalhan ug notice ang
RD.
o Ang sheriff
mupadala ug
notice sa RD
nga ang kanang
yuta gisubject
ug levy on
execution.
 After levy, auction sale.
o If shares of stock ang ilevy?
 Notice of levy shall be served
on the president or managing
agent of the corporation
o If bank deposits? Or kanang naay
gipang-utangan. Naay nangutang niya,
naay collectibles?
 How to levy? Garnishment.
 Garnishment is a levy
on intangible properties.
 Kadtong bank, padalhan ug
notice of levy. Ang sheriff
muinquire kung ang kaning
tawhana naay bank deposits.
Ang bank, mucomply to. If ang
bank muingon nga naay bank
deposit, ang sheriff muingon
nga ipahold.
 Kung bank, naay levy on
garnishment, kwaan sa utang
iyang deposit. (c)
Section 10.
Execution of judgments for specific act.
Sec 9 is for money judgment.
If dili money judgment.
- If dili property?
- For example, gikiha siya sa plaintiff. Ang
plaintiff nipalit ug yuta niya. Nahutdan nag
bayad, pero dili muexecute ug deed of sale. Dili
musugot ang defendant kay magpapuno ug
bayad. Gikiha sa plaintiff.
o Court orders nga papirmahon ug deed of
sale. Di man jud siya mupirma. Can he
be cited in contempt? No.
189 | c a v e a t e m p t o r
  Look at Sec 10 – execution of
judgment for specific acts.
Par 1: 10(a)
- If the defendant refuses to comply with the
order of the court requiring him to sign or
execute certain documents, such as deed of sale,
then the court (kay dili man pwede icite for
contempt) may require another person to
execute the deed of sale for the defendant.
o Who could this person be?
 It could be the clerk of court.
 Why the clerk of court when he
is not the owner?
 ―The court may direct the act to
be done at the cost of the
disobedient party by some other
person appointed by the court
and the act when so done shall
have like effect as if done by the
party‖
o Also, pwede rapud iorder sa court ang
RD sa pag-issue ug bag-o nga title.
 The court may directly order
the RD to cancel the title of the
defendant and issue a new title
in favor of the plaintiff.
Par 2: 10(b)
- If the order of the sale of property, then it should
be sold.
- For example, in the case of Partition. Ang
judgment sa court kay ibaligya nalang ang
property. Kay alanganin bahinon.
o For example, 100 sqm in Colon. Mahal
kaayo sa colon. But 10 sila magbahin.
So ibaligya nalang.
- If the judgment be for the sale of real or personal
property, to sell such property, describing it, and
apply the proceeds in conformity with the
judgment.
Par 3: 10(c)
What if recovery of a parcel of land? Or a building?
- Kanang ipauli or ipakuha kay nangilog ka bisag
di ka tag-iya. For example, nangangkon.
- The sheriff shall demand of the person against
whom the judgment for the delivery or
restitution of real property is rendered and all
persons claiming rights under him to peaceably
vacate the property within three (3) working
days, and restore possession
o Orderan na siya sa sheriff sa pagpahawa.
- For example, naay nangabang sa inyong balay.
Nya nakadaog naka sa ejectment, wala lang
gihapon nipahawa. Unsaon man na?
o If dili gihapon muhawa, the sheriff may
forcibly remove him from the premises.
o Of course, sheriff will ask assistance
from the law enforcers for the peaceful
turnover of the property through a writ
of execution. (c)
- Pero, tagaan ni siya ug ultimatum.
o Last chance to vacate of 3 days.
o Inig balik sa sheriff pero naa lang
gihapon, pugson na sya pagpahawa.
- There was one case nga maldito ang defendant.
Wala diha. Iyang gilock. Unsay gibuhat sa
sheriff, giguba ang lock, giablihan. The premises
was padlocked. Gidestroy sa sheriff. Pwede na?
o Yes, pwede.
o Ang padlock ra ang giguba ha. Dili ang
balay. Kay ang balay sa plaintiff man.
o Where the premises were padlocked
and no one was therein at the time the
execution was carried into effect, there
was no need for the sheriff and the
plaintiff to secure a break open order
inasmuch as the character of the writ
in their hands authorized them to
break open the premises if they could
not otherwise execute its command.
 Arcadio vs Ilagan (43 SCRA
168)
- Pwede ra ang writ kung walay gubaon nga
balay.
Par 4: 10(d)
- Here, if there is an improvement to be
demolished or removed, writ of execution would
not be sufficient. There has to be another order
to be issued by the court – writ of demolition
o Prior to issuance of writ of demolition,
there has to be a motion for the issuance
of writ of demolition.
- So there are 2 motions.
o First, motion for execution. If granted,
court issues writ of execution.
190 | c a v e a t e m p t o r
  Papahawaon sa sheriff. ―Gubaa
nani kay papahawaon namo.‖ Di
man muguba.
 Pwede na gubaon? Dili pa.
 Sheriff will go to the court, will
report that the writ of execution
was not satisfied because the
defendant/s refused to remove
or demolish their houses.
 Lisod ni ha. Kana bitawng sa
informal settlers. Labi nag
daghan sila.
 Kana bitawng naay
empty lot. Nya
magbutang-butang ug
lamisa with payong.
Kadugayan walay
mubadlong, magtukod
na ug concrete. Ug
papahawaon,
magpabayad na sila.
 So unsa may buhaton sa
tag-iya? The owner now
will file a case, either
ejectment or recovery of
possession (accion
publiciana)
 Kung di jud mupahawa
after the case is decided,
then, writ of execution.
After, writ of
demolition.
o That is if the
execution of the
decision
involves
removal of the
improvement.
- Before the actual demolition, the defendant/s
should be given reasonable time to remove by
themselves the structure.
o The rule does not state what constitutes
―reasonable time‖
 For example, naay giissue ang
court nga writ of demolition.
Adtoon na sa sheriff, nya
muhangyo tagaan additional
time.
 There is no specified time.
- If it involves informal settlers, there is a
procedure.
Par 5: 10(e)
- Delivery of Personal Property
- If it is a personal property, the officer shall take
possession of the same and give it to the
plaintiff.
Section 11.
Execution of special judgments.
Kanang sa mga certiorari, mandamus, prohibition?
- Mao ni ang makapacontempt.
o Ang sa writ of execution and writ of
demolition, dili ni makapacontempt
because the writ is addressed to the
sheriff. It is the sheriff who is
commanded to execute the decision.
o Ang problem is napapahawa na, unya
later on namalik. This is now
contemptuous. (Rule 71)
 After being removed but the
defendant returned, that is now
a contemptuous act.
 But mere failure to comply with
the judgment of the court is not
contemptuous.
Special Judgment
- Refers to the judgment of the court in certiorari,
mandamus and prohibition.
- Unsaon man pag execute?
o When a judgment requires the
performance of any act other than those
mentioned in the two preceding
sections, a certified copy of the
judgment shall be attached to the writ of
execution and shall be served by the
officer upon the party against whom the
same is rendered, and the sheriff should
order the party against whom the order
is issued to obey the same.
- Sheriff should order the party against whom the
decision is rendered to obey the same.
- If defendant fails to comply, then he could be
punished for contempt if he disobeys such
judgment.
191 | c a v e a t e m p t o r
Section 12
- This is about levy in execution
The levy on execution shall create a lien in favor of the
judgment obligee, but subject to the right of liens or
other encumbrancers.
Section 13
Properties exempt from execution
(a) The judgment obligor's family home as provided by
law, or the homestead in which he resides, and land
necessarily used in connection therewith;
- Regardless of value, family home is exempt
from execution.
(b) Ordinary tools and implements personally used by
him in his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or
other beasts of burden, such as the judgment obligor may
select necessarily used by him in his ordinary
occupation;
(d) His necessary clothing and articles for ordinary
personal use, excluding jewelry;
(e) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the judgment
obligor and his family, such as the judgment obligor may
select, of a value not exceeding one hundred thousand
pesos;
(f) Provisions for individual or family use sufficient for
four months;
(g) The professional libraries and equipment of judges,
lawyers, physicians, pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other professionals,
not exceeding three hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding the
total value of one hundred thousand pesos owned by a
fisherman and by the lawful use of which he earns his
livelihood;
(i) So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the
four months preceding the levy as are necessary for the
support of his family;
- Salaries, wages, pwede maexecute but only to a
certain percentage
- Perhaps, 25%
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or
in any manner growing out of any life insurance;
(l) The right to receive legal support, or money or
property obtained as such support, or any pension or
gratuity from the Government;
- Pension from the govt. Dili pwede maexecute.
- But remember: VAWC
o Pensions di pwede maexecute sa other
judgments sa other cases. Pero sa vawc
for support, dili exempt.
(m) Properties specially exempted by law.
Section 14.
Return of writ of execution
Return
- Report of the sheriff, as to whether the decision
was executed, satisfied or not
Lifetime of writ of execution?
- The writ is effective only within 5 yrs after the
entry of judgment.
o So, if the writ of execution is issued on
the 4th year na kay natulog pa ang
plaintiff, and the court issued the writ,
the writ shall remain effective only for 1
yr (or before lapse of 5 yrs)
Section 15
Notice of sale of property on execution
After levy, next would be auction sale.
- There should be a notice as to the date, time and
place of the auction sale.
- Without notice, the sale would be void.
If property has to be sold in an auction sale, there has to
be a publication in a newspaper if the assessed value
exceeds 50k.
Nganung need ug notice?
- Thing is given to the highest bidder. How to
have bidders if there is notice?
Where to post notice?
- In conspicuous places. Kanang dali ra makita.
- There must be notices to be posted in public
places, otherwise the same will be void.
192 | c a v e a t e m p t o r
Section 16
Proceedings where property claimed by third person
- VERY IMPORTANT
Inig mamira nana ang sheriff ug mga butang sa
defendant, naa juy possibility nga ang property nga
iyang mabira, dili diay sa defendant, kay gihuwaman ras
defendant. Gigamit-gamit ra sa defendant.
- For example, ang auto sa maguwang. Kay
naluoy ang maguwang kay walay public
transport. Aron naay magamit, gipahuwaman
ang auto. Unya ang manghud naa namay
judgment nga pabayron sa utang. Nya wa man
nakabayad, namira ang sheriff. Ang usa sa
gibira, ang auto. What is now the remedy of the
3rd party claimant?
o Third party, meaning not a party to the
case, and he has a claim against a
property levied upon by the sheriff.
o Remedy? Mag-execute siya ug affidavit
alleging the basis of his claim of
ownership or possession (the basis of his
right of ownership or possession)
 Ang tawag sa affidavit –
terceria
 A terceria is an affidavit
executed by a third party
claimant.
If the property levied on is claimed by any person other
than the judgment obligor or his agent, and such person
makes an affidavit of his title thereto or right to the
possession thereof, stating the grounds of such right or
title, and serves the same upon the officer making the
levy and copy thereof, stating the grounds of such right
or title, and a serves the same upon the officer making
the levy and a copy thereof upon the judgment obligee,
the officer shall not be bound to keep the property,
unless such judgment obligee, on demand of the officer,
files a bond approved by the court to indemnity the
third-party claimant in a sum not less than the value of
the property levied on.
- Could be personal or real property
- Magbuhat ug affidavit, tagaan ug copy ang
sheriff. The sheriff now is not duty bound to
keep the property. Otherwise, he runs the risk of
being liable for damages.
If false claimant?
- Kung muingon ang plaintiff nga owned man sa
defendant?
- What is the remedy of the plaintiff if he insists
that the property should be levied, should be
kept by the sheriff?
o Remedy on the part of the plaintiff is to
post bond that would answer damages
that the 3rd party claimant would suffer.
o If the plaintiff will post bond, the sheriff
can keep the property and go on with the
sale.
 But if the plaintiff fails or
refuses to post bond, the sheriff
is not duty bound to keep the
property.
Remember remedies:
- Third party claimiant, terceria.
- Plaintiff, bond.
Suppose the third party claimant would insist that he is
really the owner or rightful possessor of the property and
not the defendant?
- Nakaexecute na ang plaintiff ug terceria.
- Other remedies?
o He can invoke supervisory power of
the court over the sheriff. He can ask the
court to resolve, to determine whether
the sheriff has correctly acted upon in
levying the property.
 Murequest siyag hearing, unya
mupresent siya ug proof nga
iyaha ang property, and ang
sheriff nasayop ug kuha.
 Iprove ang supervisory power of
the court over the sheriff.
o Another remedy if he does not want to
invoke supervisory power, or if he
invokes supervisory power, the ruling is
adverse, he may file a separate civil
action to recover possession or to
enjoin the sheriff from proceeding with
the auction sale.
 Unsa man na nga case aron
pugngan ang sheriff
pagpahigayon sa auction sale? It
could be injunction.
193 | c a v e a t e m p t o r
  And if he files a separate action,
the case may be reshuffled and
may be under other court.
 Possible nga ang case
will be filed sa lain nga
court.
 Would this not be a violation of
the Doctrine of Non-
Interference, that a court of co-
equal jd cannot intervene with
the decision of a co-equal court?
No.
 According to SC in Abiera vs
CA (45 SCRA 314) SC: A third
person may vindicate such
claim by a separate action. A
judgment in his favor
declaring him the owner of a
property would not be
interference because the
property, being that of a
stranger, is not subject to levy.
Thus, an interlocutory order
such an injunction upon a claim
and prima facie showing of
ownership by the claimant,
cannot be considered as such
interference either.
 SC: The court did not
direct the sheriff to levy
on the particular
properties in dispute.
The order was for him
to levy upon
properties of judgment
debtor without
specifying them.
 SO, not considered
interference.
 It is not considered interference,
not considered a violation of
Doctrine of Non-Interference
because in the first place, the
ROC allowed the same.
Why is it that the third party claimant would not file a
motion for intervention?
- Remember, this is now in the execution stage. A
motion for intervention is only proper before
judgment under R19. Motion for intervention is
no longer available.
- He cannot also appeal because he is not a party
to the case.
- He cannot also file a petition for certiorari.
- So only remedy is to file a separate or
independent civil action to vindicate his right
over his property.
See: Psalm vs Maunlad Homes (Feb 8, 2017)
- SC: Neither an appeal or petition for certiorari is
the proper remedy from the denial of the third
party claim under Sec 16 R39 since the third
party claimant is not one of the party to the case.
He could not, strictly speaking, file an appeal of
an order denying his claim. But, he should file a
a separate reinvidicatory action against the
execution creditor or a complaint for damages
against the bond filed by the judgment creditor
in favor of the sheriff.
- The rights of a third-party claimant should be
decided in a separate action to be instituted by
the third person.
- And in such separate action, the court may issue
a writ of preliminary injunction against the
sheriff enjoining him from proceeding with the
execution sale.
On the part of the plaintiff, what is the remedy of the
plaintiff based on the baseless claim?
- He may file for damages, either in a separate
action or in the same case against the third party
claimant.
Last par: When the writ of execution is issued in favor of
the Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
require
Section 17.
Penalty for selling without notice, or removing or
defacing notice.
Result of sale if no notice: void
- Sheriff can be subject to damages
Section 19
How property sold on execution; who may direct
manner and order of sale
194 | c a v e a t e m p t o r
 sheriff ug certificate of sale, and
This is about the conduct of execution sale. How it is such certificate will be
sold. registered to the RD.
 Within 1 yr from the registration
The sheriff may only sell such property, the proceeds of of the cert of sale, obligor may
which is enough to answer the liability of the defendant. redeem

Section 20. Refusal of purchaser to pay. Section 26.

Certificate of sale where property claimed by third
Diba i-auction? If the purchaser refuses to pay, there person.
should be another auction sale.
- Kadtong nagpapalit-palit, may be cited in Where property levied is either personal or real property,
contempt. if there is a third party claimant, in the cert of sale, it
must be mentioned, it must be indicated that there is a
Section 21. third party claimant.
Judgment obligee as purchaser.
Who can redeem the real property sold during the
During the auction sale, the creditor may also participate auction sale?
in the bidding. - First is the defendant.
- If amount of bid is equivalent to the claim, he is - Pananglitan, ang iyang property naay
not anymore allowed to pay kung iyang amount encumbrancers subsequent to the plaintiff
sa bid would be equivalent to the amount of (junior encumbrancers). JE has also right to
claim. redeem.
- There would be set-off or compensation. o The first redemptioner has 1 yr to
redeem.
Section 22 o But the moment the defendant would
Adjournment of sale redeem, there is no more further
redemption.
Kung mahuman na, adjourn  For example, within 1 yr from
registration of the certificate of
Section 23. sale, defendant may redeem.
Conveyance to purchaser of personal property capable But if ang defendant dili dayon
of manual delivery. muredeem?
 For example, D is the
Conveyance. defendant. B is buyer.
- If personal property, it shall be immediately Unya naay junior
delivered to the buyer. encumbrancers (X, Y,
- If real property, the buyer cannot immediately Z). Within 1 yr, pwede
take possession of the property. makaredeem si D. If dili
o For example, lot. Or house and lot. The makaredeem si D,
buyer cannot immediately take pwede si X, Y, or Z ang
possession of the property because the pwede muredeem.
defendant (judgment obligor) has still  If, si X ang unang
the right of redemption within 1 yr. niredeem sa property.
 He can still redeem the property Interested siya sa
within 1 yr from the registration property. After X would
of the certificate of sale. redeem the property, the
 Ang buyer dili issuehan ug deed other encumbrancers
of absolute sale. Mag-issue ang has 60 days to redeem.
195 | c a v e a t e m p t o r
  For example, si X wala
niredeem dayon kay
naghuwat2 siya ni D.
Muredeem siya sa 10th
month. So pagredeem ni
X, naay 60days that Y
may redeem.
 After Y, Z may still
exercise his right of
redemption, even if
nilapas na sa 1yr basta
within 60 days.
 Suppose, paghuman ug redeem
ni X on the 10th month. Unya
giredeem ni D ang property
from X (or any of the junior
encumbrancers), no further
redemption shall be allowed.
 Kung muredeem ang
defendant, no further
redemption shall be
allowed.
o Again, judgment obligor has 1 yr from
the registration of the certificate of
sale to redeem. He may redeem either
from the purchaser or a redemptioners.
And once he redeems, no further
redemption is allowed. After 1 yr, he has
no more right to redeem.
 As regards to redemptioners, the
first redemptioner has 1yr from
the date of registration of the
certificate of sale to redeem.
The other redemptioners has 60
days from the redemption of the
last redemptioner, even if
mulapas sa 1yr as long as the
redemptioner will redeem
within 60 days after the last.
Section 27.
Who may redeem real property so sold.
- Already discussed.
Section 28.
Time and manner of, and amounts payable
on, successive redemptions; notice to be given and
filed.
- Mana
Section 29.
Effect of redemption by judgment obligor, and a
certificate to be delivered and recorded thereupon; to
whom payments on redemption made.
Effect of redemption by judgment obligor
- Once defendant redeems, no further redemption
is allowed and he will be restored to his property
Section 30.
Proof required of redemptioner.
This is about he required proof that is to be presented by
a redemptioner.
TN: Dili bisag kinsa ang makaclaim ha. He should be
someone who has a claim over the property.
- Example: Mortgagee
- He has to present proof.
Section 31.
Manner of using premises pending redemption; waste
restrained.
Within the redemption period of 1 yr from the date of
registration of the cert of sale, while waiting for period
of redemption to lapse, the defendant shall continue to
hold the property, continue to enjoy the fruits of the
property.
- If defendant is receiving lease, he may continue
to receive.
- If sa huna-huna sa defendant, dili najud
mareedeem. Kay wala naman jud siyay kwarta.
o Possible that the defendant will no
longer take care of the property.
o That is why, under Sec 31, a court,
upon motion of the aggrieved party, may
issue an order to restrain the
commission waste or destruction of the
property
Section 32.
Rents, earnings and income of property pending
redemption.
Defendant shall continue to enjoy the fruits.
196 | c a v e a t e m p t o r
 - The purchaser is not entitled to enjoy or receive
the fruits or earnings of the property.
Section 33.
Deed and possession to be given at expiration of
redemption period; by whom executed or given.
Execution of the final deed of sale (or deed of
conveyance)
- Ang pirmiro, certificate of sale.
- If defendant fails to exercise right of
redemption, sheriff will execute final deed of
sale or deed of conveyance
- Ownership of the buyer shall be reckoned from
the time of levy.
Section 34.
Recovery of price if sale not effective; revival of
judgment.
Suppose, the buyer is ousted from the premises.
- Remember petition for relief from judgment?
o In the petition for relief from judgment,
final and executory na ang decision.
Also in annulment of judgment.
o So it could be nga naa nay execution.
Nahalin na ang property.
- Kung na-annul ang decision, what is the right of
the buyer? He is ousted.
o Under Sec 34, he can recover from the
judgment creditor, or even from the
judgment debtor, at his option.
o He may also file an action to recover
possession.
Section 35.
Right to contribution or reimbursement.
Matter of reading
About the right of solidary debtor
- He can demand for contribution from co-
debtors.
Sec 36-43 are remedies of the plaintiff in case the
judgment is not satisfied or not enforced
- Pananglitan, walay properties.
- Kay most likely, kung naa nay execution, ang
defendant magtago-tago. Tagoan ang properties
aron di mabira.
Section 36.
Examination of judgment obligor when judgment
unsatisfied.
About examination of judgment obligor when judgment
unsatisfied.
- Pwede nga he will be subjected to examination
in court.
- He will be examined under oath and will be
asked regarding whereabouts of his other
properties.
Section 37.
Examination of obligor of judgment obligor.
It could be that the defendant has collectibles. Possible
nga naa siyay debtors.
- The debtors of the defendant could also be
subjected to examination to determine whether
the defendant has, indeed, collectibles
- If it is found that indeed defendant has
collectibles, those collectibles of the defendant
could be garnished.
Section 38.
Enforcement of attendance and conduct of
examination.
In order to compel attendance of the debtors of the
defendant, a subpoena may be issued against them. If
they refuse to appear, they may be cited for contempt.
Section 39.
Obligor may pay execution against obligee.
This is about compulsory novation
- If it is determined that the defendant has
collectibles, the court can require the debtor/s of
the defendant to make payments to the plaintiff.
o There would be a sort-of novation.
o The plaintiff would now take place of
the defendant as collector of the
collectibles.
197 | c a v e a t e m p t o r
  Ang defendant unta ang naay
collectibles pero ilisdan na siya
sa plaintiff.
Section 40.
Order for application of property and income to
satisfaction of judgment.
This is about the income or salary of the defendant.
- Kung dili siya kabayad pero naay siyay salary or
income, a portion thereof may be garnished, may
be used to pay off or satisfy the judgment.
o Perhaps, 25% of salary shall be
garnished
Section 41.
Appointment of receiver.
This is about appointment of receiver in order to
preserve the property.
- Pananglitan, wala pa nahuman ang period of
redemption, but the defendant has already
wasted the property.
o Iya for example, gipamutol ang kahoy,
or ang balay wala na tagda, the court
may appoint a receiver in order to
preserve the property and to prevent
the defendant from disposing of the
same.
Section 42.
Sale of ascertainable interest of judgment obligor in
real estate.
This is about ascertaining the claims of the defendants.
- Possible man ang defendant nga siya mortgagee
or mortgagor. Either he is a mortgagee or
mortagor, naa siyay interest in a certain property
- The receiver to be appointed by the court may be
ordered to sell or convey the property or the
interest of the obligor.
Section 43.
Proceedings when indebtedness denied or another
person claims the property.
Just in case debtors of defendant would deny, under this
section, the court may authorize the creditor to file a
collection case or to recover the property from those
persons whom the defendant has a claim.
Section 44.
Entry of satisfaction of judgment by clerk of court.
- Satisfaction of judgment
- In the event that the judgment is satisfied, the
clerk of court would now record/reflect on the
records of the court that the judgment is
satisfied.
o How will court know nga nasatisfy ang
judgment?
 Through the return of the sheriff
 Or through admission of
plaintiff that the judgment has
been satisfied
Section 45.
Entry of satisfaction with or without admission.
If defendant has already satisfied the decision, he could
already ask the court or note, or to enter into the docket
of the court regarding satisfaction of the decision.
Section 46.
When principal bound by judgment against surety.
When the surety is being sued by a creditor, without
joining the principal, the surety should notify the
principal
- Surety, there is a principal debtor. When the
creditor sued the surety instead of the principal
debtor, the surety should notify the principal
Sec 47
Effect of Judgment or final orders.
Important!!!
This section talks about res judicata.
Kinds of res judicata:
- (1) Barred by prior judgment
o Mao ni ang usual.
o Mao ni atong nahibaw-an nga res
judicata.
- (2) Conclusiveness of judgment
o Tagsa rani masugatan.
198 | c a v e a t e m p t o r
  Isipon nga based on
Elements of Res judicata in the form of ―Barred by evidence even if no
Prior Judgment evidence was presented.
(1) the former judgment or order must be final and  Another: Failure to file pre-trial
executory brief.
(2) it must be a judgment or order on the merits  Failure to file is
(3) it must have been rendered by a court having jd considered non-
over the parties and over the subject matter appearance during pre-
(4) Between the first and second, trial, and so the case
a. there must be identity of parties, or may be dismissed with
substantially the same. prejudice (if it is the
b. there must be identity of coa or plaintiff)
substantial identity of coa  Another: Plaintiff failed to
c. there must be identity of subject matter comply with the order of the
or substantial identity of subject matter. court.
 For example, giorder
- (1) the former judgment or order must be nga iamend, or
final and executory iparticular, or i-more
o Kaning barred by prior judgment, this is definite ang allegations,
not only applicable to final judgment. or i-implead ang
 This is also applicable to a final indispensable parties
order. but did not comply with
o Final, meaning could no longer be the order. Court may
appealed or appeal has been resolved order dismissal with
- (2) it must be a judgment or order on the prejudice. He could no
merits longer re-file.
o Meaning, rendered after a consideration  Another: Dismissal for failure to
of evidence or stipulation submitted by prosecute within reasonable
the parties at the trial of the case. period of time.
o Remember, judgment on the merits  For example, ang court
means based on evidence nidismiss sa case kay
 The parties have submitted wala nitunga ang
evidence, and court has plaintiff during pre-trial.
rendered a decision or judgment Wala nifile ug MR,
o But remember: there are instances where wala niappeal. Order
the court may issue an order dismissing became final and
the case before trial, and yet the order is executory. After 3
considered dismissal on the merits months, filed the same
 For example, dili mutunga case, with the same
during pre-trial. Non- COA, with the same
appearance by plaintiff during parties. Will the case
pre-trial is a ground for prosper? Could no
dismissal of the case with longer file because
prejudice. barred by final
 Dismissal with judgment.
prejudice is considered o For example, si P nifile ug case against
a dismissal with the D. After trial, it was dismissed. No
merits. appeal. A year thereafter, P filed another
case involving the same COA, the same
199 | c a v e a t e m p t o r
 parties. Will the case prosper? No.
Barred by prior judgment (res judicata.(
- (3) it must have been rendered by a court
having jd over the parties and over the
subject matter
o All the elements of the jd must be
present
 If there is no jd, judgment is
void. No res judicata.
 For example, court rendered a
decision. But there was no
summons served on the
defendant. What will happen to
the decision? The decision is
void.
 Or the court has no jd
over the subject matter.
The decision is void.
- (4) Between the first and second,
o If res judicata barred by prior judgment,
it presupposes filing of 2 cases.
o (a) there must be identity of parties,
or substantially the same.
 For example, plaintiff P in the
first case, and defendant D. In
the 2nd case, aron naa kunohay
bag-o nga nawng, ang asawa ni
D giapil ni P. Pero mao ra
gihapong COA. Would it
prosper? No.
 Although parties are not
the same, they are
substantially the same.
 Wife of D was only
made, in a futile
attempt, to avoid res
judicata.
o (b) there must be identity of coa or
substantial identity of coa
 For example in the first case, the
coa is non-payment of loan.
Collection of sum of money. In
the second action, iyang
gibutangan ug collection of sum
of money and damages.
 The coa b/w the first and second
are not exactly the same, but are
substantially the same.
o (c) there must be identity of subject
matter or substantial identity of
subject matter.
Conclusiveness of Judgment
- Here, between the first and the second case,
there is an identity of issue/s, and such issue/s
has already been resolved by the court.
o Issues are the same, parties are the same,
but the causes of action are not the
same. Only that, there is identity of
issue/s.
o Example, D (debtor) obtained a 10M
loan from P, payable in 10 months.
 First installment, D failed to
pay.
 As discussed, general
rule is that one contract,
one coa. But if a
contract is capable of
several performances
such as a loan payable
on installments, each
installments due and
unpaid would constitute
coa.
 Nagfile ug collection
case si P. In his answer,
D raised the defense of
forgery. However, the
court rendered a
decision against him in
favor of P. D was
required to pay the first
installment.
 P files another case for the 2nd
installment
 D raised again the same
issue of forgery. So
different parties,
although the same COA
(because this is now the
2nd installment), but D
raised the same issue
which is forgery. Would
it prosper? No.
 D now is prohibited or
prevented from raising
such issue based on
200 | c a v e a t e m p t o r
 conclusiveness of
judgment.
- In conclusiveness of judgment, there is an
issue that has been resolved in the previous
case, and same issue is raised in the 2nd case.
o The defendant is not anymore allowed
to raise such issue because it has been
barred by res judicata by conclusiveness
of judgment.
- SC: Conclusiveness of judgment states that a
fact or question which was in issue in a former
suit and was there 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.
o Identity of coa is not required, but
merely identity of issues.
- See case of Alamayri vs Pabale (April 30, 2008)
 In this case, SC discussed the
differences b/w barred by prior
judgment and conclusiveness of
judgment.
o (lzl res) There is "bar by prior
judgment" when, as between the first
case where the judgment was rendered
and the second case that is sought to be
barred, there is identity of parties,
subject matter, and causes of action.
In this instance, the judgment in the first
case constitutes an absolute bar to the
second action. Otherwise put, the
judgment or decree of the court of
competent jurisdiction on the merits
concludes the litigation between the
parties, as well as their privies, and
constitutes a bar to a new action or suit
involving the same cause of action
before the same or other tribunal.
o But where there is identity of parties in
the first and second cases, but no
identity of causes of action, the first
judgment is conclusive only as to those
matters actually and directly
controverted and determined and not as
to matters merely involved therein. This
is the concept of res judicata known
as "conclusiveness of
judgment." Stated differently, any
right, fact, or matter in issue directly
adjudicated or necessarily involved in
the determination of an action before a
competent court in which judgment is
rendered on the merits is conclusively
settled by the judgment therein and
cannot again be litigated between the
parties and their privies whether or not
the claim, demand, purpose, or subject
matter of the two actions is the same.
Let’s go back to sec47
Under Par (a), as regards action in rem, in a case of a
judgment or final order against a specific thing, the
judgment or final order is conclusive upon the title to the
thing, the will or administration or the condition, status
or relationship of the person.
- So, conclusive upon the thing, upon the
property.
Par (b)
As regards action in personam, the judgment of the court
is only conclusive upon the parties, and their successors
in interest.
- In action in rem, the judgment is conclusive
against the whole world or against any person
who may have interest over that property or
thing.
- They are bound by the decision of the court.
Par (c)
- This is about conclusiveness of judgment.
- In any other litigation between the same parties
or their successors in interest, that only is
deemed to have been adjudged in a former
judgment or final order which appears upon its
face to have been so adjudged, or which was
actually and necessarily included therein or
necessary thereto.
See: Quintos vs Nicholas
- This case involves partition.
201 | c a v e a t e m p t o r
 o For example, 6 siblings. Ang 3, nifile ug
case for partition against other 3.
Unfortunately, during pre-trial, wala
nitunga ang mga nikiha. The trial court
dismissed the case with prejudice. Years
later, the other siblings (kadtong ilang
gipangkiha), mao nasay nikiha. They
filed a case for recovery of ownership.
(kay ang una nikiha mao may nagpuyo
sa property). In their answer, the
previous plaintiff-siblings, they
reasoned out that they are co-owners
and that they may demand partition.
o Niingon ang plaintiff sa 2nd case, pildi
nadaw kay dismissed with finality. It is
already barred by res judicata. Cannot
raise anymore by a counterclaim
o Issue reached the SC.
- In the case, SC: As far as case for partition is
concerned, if the case is dismissed pursuant to
Sec3 Rule 17, the dismissal is without
prejudice.
o Under the Civil Code, the right of co-
owner to ask for partition is
imprescriptible, and the co-owner may
ask for partition any time.
o SC: The ROC, particularly Sec 3 R17,
cannot defeat the right of a co-owner
to ask for partition.
o SC: Between dismissal with prejudice
under Rule 17, Sec. 3 and the right
granted to co-owners under Art. 494 of
the Civil Code, the provision in the CC
prevails.
 Article 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.
 A donor or testator may prohibit
partition for a period which
shall not exceed twenty years.
Neither shall there be any
partition when it is prohibited
by law. No prescription shall
run in favor of a co-owner or
co-heir against his co-owners or
co-heirs so long as he expressly
or impliedly recognizes the co-
ownership.
There was a case where husband filed for declaration of
nullity of marriage on the ground of psychological
incapacity against the wife. It was dismissed by the
court. Later on, he filed another case for declaration of
nullity on the ground that there was no valid marriage
license issued when their marriage was solemnized.
- The defendant raised the defense of res judicata.
Is there res judicata or barred by prior judgment?
o Remember: No res judicata if action is
based on the same COA. It is necessary
that, in the first and second, there must
be substantial identity of the cause/s of
action.
- In the first case, psychological incapacity.
Second is lack of ML. Res judicata?
o SC: Yes. The COA is the same, nullity
of marriage.
o SC: When the husband filed a case
based on the ground of psychological
incapacity, the husband is deemed to
have admitted the validity of marriage in
his first petition.
- See: Malion vs Alcantara (2006)
Section 48.
Effect of foreign judgments or final orders.
There was a case wherein the plaintiff was able to obtain
judgment against defendant in Japan. Didto siya nikiha
sa Japan. Collection case. Wala man nakaexecute sa
Japan, unsaon man niya pagpaenforce sa judgment of the
Japanese court in Ph kay naa diri ang defendant?
- Sec 48 says that the effect of a judgment or final
order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order
is as follows:
- (a) In case of a judgment or final order upon a
specific thing, the judgment or final order, is
conclusive upon the title to the thing
202 | c a v e a t e m p t o r
 o Kadto ning in rem. SC ordered the enforcement of the
o Basta in rem, binding against the whole judgment.
world.
- As regards action in personam, (b) in case of a A defendant in a PH court may invoke a foreign
judgment or final order against a person, the judgment as res judicata in his defense.
judgment or final order is presumptive evidence
of a right as between the parties and their Sec 48 also applies in recognition of foreign judgment in
successors in interest by a subsequent title the Family Code with regards foreign divorce.
o Iow, the judgment of the foreign court - Dili man ni automatic. Kung nakigdivorce ang
can only be enforced in PH by filing of a bana nga foreigner, dili na automatic maenforce
case for the enforcement or recognition in Ph. What should the wife do?
of that judgment. o File a petition for recognition of foreign
- In either case, the judgment or final order may divorce.
be repelled by evidence of a want of jurisdiction, o He has to prove that indeed, there is
want of notice to the party, collusion, fraud, or such decree.
clear mistake of law or fact.  He has to present the original
copy of the foreign divorce
Going back to the example where plaintiff filed a decree (this is the first requisite)
collection for sum of money in Japan, what should he  (2nd requisite) There must be
do? proof that the law of that
- File a case here against defendant for the country allows the parties to
enforcement of the judgment. the divorce to remarry
- Northwest Orient Airlines Inc vs CA (G.R. No. o See: Republic vs Manalo (Apr 24, 2018)
112573 February 9, 1995) - Before, ang foreigner ang mukiha aron
o The plaintiff obtained a judgment maacknowledge ang divorce decree.
against the defendant in Tokyo, Japan. o In the case of Manalo, it is the Filipina
But being unable to execute the who filed a divorce decree. Niadto sa
judgment in Japan, the plaintiff filed a lain nasod para mufile sa divorce.
suit for its enforcement before RTC Gigrant. Pwede ba irecognize in Ph?
Manila.  SC: Yes.
o What should be the defense of the
defendant?
 Lack of jurisdiction, lack of
notice to the party, collusion,
fraud, or clear mistake of law or
fact
o The defendant in the case filed its
answer alleging lack of jd and clear
mistake of fact and law
o SC: A foreign judgment is presumed to
be valid and binding in the country from
which it comes, until the contrary is
proved.
 IOW, the defendant has to
burden of presenting evidence
to prove that it is invalid.
o SC: Since defendant was not able to
overcome the presumption of validity,

203 | c a v e a t e m p t o r
November 30, 2020
Last Topic:
PROVISIONAL REMEDIES
[Rules 57 to 61]
Provisional
- Temporary.
Provisional Remedies under ROC:
1. Preliminary Attachment
2. Preliminary Injunction
3. Receivership
4. Replevin
5. Support Pendente Lite
There are other provisional remedies provided or
granted by other special laws.
- The provisional remedies provided in the ROC
are not exclusive enumeration.
- Other provisional remedies:
o Remember vawc? We learned that
offended party may avail of the
provisional remedies of temporary
protection order.
o Or in the petition for issuance of writ of
amparo, the petitioner may avail of the
provisional remedies of:
 witness protection order, or
 temporary protection order,
 inspection and production
order
o Anti Money Laundering Act
 The prosecution or the govt may
avail of the provisional remedy
of the freeze order or the bank
inquiry order
o Human Security Act
 Although already amended,
there are also provisional
remedies in such law
o In CrimPro, there is also precautionary
hold departure order.
Provisional Remedies are also called ―ancillary‖ or
―auxiliary remedies‖
- Meaning, ikog. Naay ikog, naa jud nay ulo.
Provisional remedies presuppose that there is a
main case.
- A provisional remedy is resorted to to protect
and preserve certain rights in a pending case.
(purpose)
Which court could grant the provisional remedies under
ROC?
- Any court, either the first level court or the 2 nd
level court (RTC), may grant any of the
provisional remedies, provided the main case or
action is pending in that court or within the jd of
that court.
- For example: Ejectment case
o Ejectment cases are under the jd of the
first level court.
 The first lvl court where the
ejectment case is pending or
where it is appropriate or proper
may grant the preliminary
injunction, provided the main
case is pending in that court.
Understand Rule 57 and Rule 58 because these are bar
favorites.
RULE 57
PRELIMINARY ATTACHMENT
In preliminary attachment, certain properties, either
personal or real properties, of the defendant will be
placed under the custody of the court for the satisfaction
of the judgment that the claiming party may obtain.
- ―Placed in custody of the court‖
o Custodial egis
- In layman’s term, ―sheriffon daan‖ kay aron dili
mapusoy ang kihante. Kay basin ma-empty
victory siya (kanang makadaog pero murag pildi
gihapon)
―Claiming Party‖
- It could be the plaintiff
- It could also be the defendant as regards his
counterclaim
- Writ of Preliminary attachment is not
exclusively available to the plaintiff. It could be
available to any claiming party.
204 | c a v e a t e m p t o r
Purpose of the writ:
- To have security for the satisfaction of any
favorable judgment that the claiming party may
have later on.
o Meaning, the claiming party is insecure,
and he needs security.
- Such that, if the obligation of the defendant is
secured, such as secured by a real estate
mortgage, a writ of preliminary attachment is
not available
o Kay naa may security, naay pwede
mabira kung dili mabayran.
Preliminary attachment is applicable only in cases
enumerated in Sec 1 R57.
- Enumeration is exclusive.
TN: Writ Preliminary attachment is also available in
criminal cases. (R127 CrimPro)
Section 1.
Grounds upon which attachment may issue
At the commencement of the action (upon the filing of
the case) or at any time before entry of judgment, a
plaintiff or any proper party may have the property of
the adverse party attached as security for the satisfaction
of any judgment that may be recovered in the following
cases:
- So when can the writ of preliminary attachment
be applied?
o Usually the application for the issuance
of the writ of preliminary attachment is
included in the complaint itself.
 This is what ―at the
commencement of the action‖
means.
 So the application will be
incorporated in the complaint.
o If there is no application for the issuance
of the writ of preliminary attachment in
the complaint, the application or the
motion could be filed before entry of
judgment
 Meaning, before the judgment
has become final and executory.
o But, in practice, application is included
in the complaint
(a) In an action for the recovery of a specified
amount of money or damages, other than moral and
exemplary, on a cause of action arising from law,
contract, quasi-contract, delict or quasi-delict against
a party who is about to depart from the Philippines
with intent to defraud his creditors;
TN: Specified amount of money or damages
- Damages refers to actual damages.
- Walay labot ang unliquidated damages (moral
and exemplary damages)
o Writ of preliminary attachment is not
available for moral and exemplary
damages.
So the main case could be sum of money or damages,
other than moral and exemplary damages.
- For example, in quasi delict. Naligsan.
o Possible jud nang nakagasto sa damages
sa hospital. Actual damages.
o So mangayo siya ug actual damages, of
course, apilan jud nag moral and
exemplary.
o Pero ang basehan sa issuance of writ of
preliminary attachment is ang actual ra.
- Contract
o For example, a contract of loan.
 Pero dili enough ha. Basin
unyag ang naa sa problem naay
question about contract of loan
with prayer for issuance of
preliminary attachment. Nya
gipangutana dayon kag ―Is the
application for the issuance of
writ of preliminary attachment
meritorious,‖ mutubag dayon
kag yes. Dili na sufficient.
o Example: A borrowed from B. A failed
to pay despite demand. B sued A in
court.
 Q: Is preliminary attachment to
B if he can show that A is
already insolvent at the time the
case is filed in court?
 No. Mere failure to pay is not a
ground for preliminary
attachment.
205 | c a v e a t e m p t o r
  It must be that the
defendant is about to
depart from Ph with
intent to defraud his
creditors.
 SC: Mere action of sum of
money is not one of the grounds
in Sec 1(a). Mere inability to
pay is not synonymous with
fraudulent intent not to honor an
obligation.
 Insolvency is not a
ground.
o Suppose, A, debtor, is about to depart
the Ph. Is Preliminary attachment
available?
 No. Mere fact that defendant is
about to depart PH is not
sufficient. It must be coupled
with intent to defraud
creditors.
 Kung ang iyang pag-adto sa
abroad is only for 1 wk or is
business related. Could you say
there is intent to defraud? No.
o Pero if muadto sa gawas with no definite
date of return or no clear destination,
there could be intent to defraud.
 Kana man gung intent to
defraud, mental activity man
gud na.
 Kinahanglan naay mga
circumsntaces nga magpakita
nga naa siyay intent to defraud.
 Kung walay klaro kung kanus-a
siya mubalik, or wala siyay
klaro asang lugara siya muadto,
his intention for his departure
could be considered as with
intent to defraud his creditors.
(b) In an action for money or property embezzled or
fraudulently misapplied or converted to his own use
by a public officer, or an officer of a corporation, or
an attorney, factor, broker agent, or clerk, in the
course of his employment as such, or by other person
in a fiduciary capacity, or for a willful violation of
duty;
Main case:
- Could be a criminal case such as malversation or
estafa.
o Because the accused has
misappropriated money or property, or
converted such money or property to his
own use.
An application for issuance of writ of PA could be filed.
- Intent to defraud is not necessary because the
basis of the application for the issuance of the
writ is the nature of the case.
(c) In an action to recover the possession of property
unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof,
has been concealed, removed, or disposed of to
prevent its being found or taken by the applicant or
an authorized person;
Main case:
- Recovery of ownership and possession
o In an action to recover possession of
property
- Or recovery of possession
(d) In an action against a party who has been guilty
of a fraud in contracting the debt or incurring the
obligation upon which the action is brought, or in the
performance thereof;
Remember estafa by issuing a check?
- As discussed, in estafa by the issuance of a
check, either postdated or currently dated, to
constitute estafa, the check should be issued
simultaneous with the incurring of the
obligation.
o For example, the check was used in
paying sa iyang pagpalit sa goods.
o Iyang giilad ang seller
o There is fraud in incurring the obligation
or in contracting the debt.
- Or for example, nangutang siya. Sa iyang
pagpangutang, niexecute siya ug real estate
mortgage. Pero diay, dili siya tag-iya sa yuta.
Wala diay siyay right.
o There is fraud committed when he
incurred the obligation.
206 | c a v e a t e m p t o r
Another situation in (d) wherein the issuance of
preliminary attachment is warranted or could be issued:
- When the defendant committed fraud in the
performance of obligation
o Possible, sa pag-incur sa obligation,
walay fraud.
 For example, nangutang siya.
Wala siya nangilad. Pero
nangilad siya sa pagbayad na.
Nangilad siya sa dihang nibayad
na.
 Sa dihang nibayad na, ang mga
check nga giissue, nibounce.
o In these instances, kung mufile ug
collection of sum of money ang
plaintiff, pwede siya mangayo or
muapply ug preliminary attachment.
 The defendant committed fraud
either in the incurring of the
obligation or in the performance
of the obligation.
 Sa first instance, pwede
siya makasohan ug
estafa kay niissue man
siya ug bouncing check
sa pag-incur niya sa
obligation. So sa case
nga estafa, pwede nga
mufile ug motion for
the issuance of a writ of
preliminary attachment
ang offended party.
 So sa pag incur sa obligation,
naay fraud, pwede muapply ug
motion for preliminary
attachment ang offended party.
Another: Nangutang ang defendant. Sa dihang mubayad
siya, iyang gibayad check, pero nibounce. Despite
demands, wala siya kabayad.
- Instead of filing collection suit, ang creditor
pwede mangayo ug issuance for preliminary
attachment
o Because the defendant committed fraud
in the performance of his obligation.
- In the example ganina nga si A nangutang ni B,
sa dihang due na ang utang, niissue siya ug
check. When the check was presented in the
bank, the same was dishonored.
o If B would file a collection suit against
A, is he entitled to the issuance of a writ
for preliminary attachment?
o Yes. The defendant incurred or
committed fraud in the performance of
his obligation.
- Kung wala ra siya niissue ug check nga
nibounce, the plaintiff is not entitled to the
issuance of the writ of preliminary attachment
because there is no fraud committed.
o Mere inability to pay is not a ground for
the issuance of preliminary attachment
o Mere insolvency is not a ground for the
issuance of preliminary attachment.
(e) In an action against a party who has removed or
disposed of his property, or is about to do so, with
intent to defraud his creditors; or
Remember fraudulent insolvency? Panaguan ang
property so that his creditors could not run after his
property?
- If the creditors would file a case against the
debtor who has removed or disposed his
properties or is about to do so with intent to
defraud his creditors, the creditors may file an
application for the issuance of preliminary
attachment.
(f) In an action against a party who does not reside
and is not found in the Philippines, or on whom
summons may be served by publication.
This is a different ground.
Under (f), the purpose of the issuance of the preliminary
attachment is for the court to acquire jd over the case.
- Preliminary attachment, pwede ni mahimong
basis for the court to acquire jd over the case.
Remember service of summons? Where the defendant is
not a resident of the Ph and is not also found in Ph?
- Considering that the defendant is not residing in
Ph and also cannot be found in Ph, ang case nga
pwede mafile against him is only those cases
involving status of the plaintiff or involving
properties of defendant
o These are actions in rem or action quasi
in rem.
207 | c a v e a t e m p t o r
 - Action in personam (u-turn kajot)
o TN: Personal action and action in
personam is different
 Personal action has something
to do with the subject matter of
the case, and is related to venue.
 Real action is an action
that involves title to, or
possession of, or any
interest over real
property.
 All other actions which
do not involve title to,
or possession of, or any
interest over real
property is personal
action.
o Such as:
collection for
sum of money,
damages.
 In rem, in personam and quasi
in rem have something to do
with the binding effect of the
decision of the court.
 In rem, decision of the
court is binding against
the whole world.
 In personam, decision is
binding only between
the parties
If defendant is not residing in Ph and is also not found in
Ph, action in personam will not prosper.
- Example Korean comes in Ph as tourist.
Nangutang, wala nakabayad, nilayas nibalik sa
Korea. Dili jud na mafilean ug action. Kung
mafilean man gani, action will not prosper.
o Action for collection of sum of money
does not involve property, and so the
case could be considered purely as an
action in personam
- But under (f), a case or an action which is purely
an action in personam, unya filed against a party
who does no reside in Ph or on whom summons
may be served by publication…
o As discussed in R14, summons with
publication may be served if the case
involves property of defendant or status
of plaintiff
 So action is eiter in rem or quasi
in rem.
o Aron makaacquire ug jd ang court over
the case, iconvert ang case from an
action purely in personam into an action
quasi in rem
 How? I-attach ang property sa
defendant.
 Kana kung naay
property ang defendant.
 For example, ang defendant nga
naa sa abroad unya naay
property in Ph (for example
auto), ang plaintiff pwede
mufile ug motion for issuance of
writ of preliminary attachment
aron iattach ang auto. The
purpose is for the court to
acquire jd over the case.
 Once the car will be
attached, the case will
be converted from an
action in personam into
action quasi in rem
 Action quasi in rem is
an action directed
another person but the
purpose is to subject his
property to a lien or to
interest of the plaintiff.
o Naay property
nga nainvolve,
filed against
defendant, but
the purpose is
to subject the
property to a
lien or to
dispose of the
property.
o Once the case is converted from action
in personam to action quasi in rem, the
court now has already acquired jd over
the property.
 Naattach na ang property.
 Once property become in
custodia legis, once the court
208 | c a v e a t e m p t o r
 acquires jd over the res,
acquiring jd over defendant is
no longer necessary.
 It is enough that the
court acquires jd over
the property
 However, while service
of summons upon
defendant is no longer
necessary it should still
be done. The purpose is
not anymore to acquire
jd over the person of the
defendant but the
purpose is to comply
with the requirements of
due process.
 Such that, after the court has
acquired jd over the res through
the issuance of the preliminary
attachment, there is no need for
the court to acquire jd over the
person of the defendant. But
still, service of summons to the
defendant is still required, not to
acquire jd but for the purpose of
compliance with the
requirements of due process.
 So, this time, pwede na
ug summons by
publication.
 Is it necessary nga ang
defendant makabasa sa
publication? No. As
long as, napublish na
siya.
Remember a, b, d and f. Bar favorite.
- But still memorize Sec 1.
What are the kinds of attachment? And distinctions?
- TN of the distinctions because the style of the
bar is basic.
1. Preliminary attachment
o It is one issued at the commencement of
the action or at any time before entry of
judgment as security for the satisfaction
of any judgment that may be recovered
in the cases provided by the rules.
2. Writ of Garnishment
o It is a kind of attachment wherein the
plaintiff reaches the intangible
properties or credit belonging to the
defendant and owing to him from a third
person who is a stranger to the litigation.
o This is the kind of attachment that will
be used sa pag attach sa intangible rights
or properties.
 For example, sa bank accounts.
 If defendant has bank deposits,
and court issues writ
preliminary attachment. Dili
sufficient ang writ of
preliminary attachment nga
giissue sa court. Naay laing
klase sa attachment nga
ipahibalo, ihatag didto sa bank.
Garnishment.
o Garnishment does not involve actual
seizure of the property, whilst (?) it
remains to the hands of the garnishee.
o Ang garnishment iissue sa sheriff, unya
ang bank iask if naa bay deposit ang usa
ka particular person. Kung naa, ingnan
ang bank nga di ipawithdraw sa
defendant nga maoy depositor
 Mao ni tuyo sa garnishment
 The garnishee is merely
required to keep the deposit and
should not allow the defendant
to withdraw them.
 Usual ni siya sa mga bank
deposits.
3. Levy on Execution (r39)
o Otherwise known as final attachment
o This is the writ issued where the
property of the defendant is taken after
judgment has become final and
executory
 As discussed in R39, nahimo
nang final and executory ang
decision wherein the defendant,
for example, is entitled to pay a
certain sum of money, wa jud
nibayad. The plaintiff would file
a motion for the issuance of writ
of execution. Wala may kwarta
209 | c a v e a t e m p t o r
 ang defendant, mao na mamira
ang sheriff ug mga butang.
 Mao nay gitawag nga levy on
execution.
Issuance of writ of preliminary attachment is only proper
when there is no security for the satisfaction of the
obligation.
- If the obligation of the defendant is secured by a
real estate mortgage, preliminary attachment is
not available
- Or, if the obligation is secured by a lien.
o There is a case where the defendant,
nagpaayo ug barko. Unya, wala
nakabayad. Kanang magpaayo ug barko,
ang nag-ayo sa barko, naay lien sa
barko. Pwede kanang barkoha, iyang
birahon kung di makabayad.
 He filed a case for collection of
sum of money with prayer for
the issuance of writ of
preliminary attachment
 SC: Dili na kinahanglan
muissue ang court ug
preliminary attachment. The
obligation of the defendant is
already secured by a maritime
lien.
 Where a lien already exists,
such as maritime lien, the
issuance of writ of preliminary
attachment is no longer
necessary and superfluous
because the maritime lien is
equivalent to an attachment
 Tsuneishi Inc vs MIS
Maritime (G.R. No.
193572 Apr 4, 2018)
 Ang idea is if naa nay security
for the payment of the
obligation or for the
performance of the obligation,
writ of attachment is no longer
available. Writ of attachment is
only available in cases
mentioned in Sec 1, and
provided there is no security for
the performance or satisfaction
of the obligation.
Sec. 2.
Issuance and contents of order.
In the issuance of the writ preliminary attachment, there
are 3 stages:
1. The issuance of the order.
o Imagine, there is an application or
motion for the issuance of writ of
Preliminary attachment.
o The first step is for the court to issue an
order granting the application or the
motion.
o Tan-awon sa court kung naa ba tong
mga grounds.
2. Issuance of the writ of preliminary
attachment by the clerk of court
o After the court has issued the order
granting the application or motion, there
will be issuance of the writ itself by the
clerk of court upon the instruction of the
judge.
o Dili mangunay ang judge ug pirma. It
would be the clerk of court upon the
instruction of the judge.
3. Enforcement or execution of the writ by the
sheriff
As far as the first two steps are concerned, the same can
be done ex parte.
- The court may issue the order granting the
motion or application for writ of preliminary
attachment ex parte.
- Ex parte, meaning without the participation or
notice of the defendant.
o This is common sense. Nganung
advantageous man kung dili
pahibaw’on? Remember, the defendant
has the intent to depart coupled with
intent to defraud. Or he has been
disposing of is properties. Possible nga
kung nagdispose na sa properties with
intent to defraud, basin hutdon niya ug
baligya kung magnotice and hearing pa.
o The issuance of the order granting the
application or motion, as well as the
issuance of the writ itself, could be done
ex parte.
210 | c a v e a t e m p t o r
- But, when the writ is being served or when the
writ is being enforced, it must be preceded or
coupled with service of summons.
o Inig bitbit na sa sheriff sa writ,
kinahanglan nga naa siyay laing bitbiton
nga papel: (the sheriff should bring the
following: )
 Summons
 Complaint
 Order of the court granting the
motion or application
 Writ itself
o This is what is called contemporaneous
service of summons.
 .Or if not contemporaneously
served with summons, it must
be preceded by service of
summons.
 Otherwise, the enforcement of
the writ would be void.
o So it is possible that the writ was
properly issued, but it may be voided if
in the enforcement or execution , the
same was not preceded with or
contemporaneously served with
summons if the defendant has not been
preceded or contemporaneously served
with summons together with the copy of
its complaint and its annexes, as well as
a copy of the order of the court granting
the application or motion
- Again, implementation of the writ of attachment
without the required jd over his person (meaning
over the person of the defendant) is null and
void.
o Execution would be null and void
- See:
o BAC Manufacturing Corp vs CA (200
SCRA ??)
o Mangila vs CA (Aug 12, 2002)
 In this case, SC stated the 3
steps in the valid service of writ
of preliminary attachment,
which are:
 Issuance of order
granting the application
or motion
 Issuance of the writ
itself
 Implementation of the
writ
Requirements for the issuance of writ preliminary
attachment?
1. Case must be any of those Grounds in Sec 1
2. The applicant must file a motion or application
for the issuance of a writ of preliminary
attachment
3. The applicant must execute an affidavit, and the
same must be attached to the motion or to the
complaint, stating that there is no sufficient
security for the claim sought to be enforced, that
the amount of claim in the action is as much as
the sum of which the order is granted above all
counterclaims
4. The applicant must post a bond executed in
favor of the adverse party
Requirements are found in Sec 1-3
- Sec 1, the cases.
o In order that the writ of preliminary
attachment could be validly issued, the
cases must be among those grounds
mention in sect 1
o So any of the grounds where issuance of
writ of preliminary attachment is proper
- Sec 2
o Applicant must file a motion or an
application which is usually
incorporated in the complaint
 If incorporated in the complaint,
the complaint must be verified.
o In the complaint wherein the application
or motion is incorporated, kay naa man
siyay prayer for the issuance of writ of
preliminary attachment, isulti niya didto
ang mga grounds sa pag issue sa writ of
preliminary attachment. It should state
in the complaint that:
 (1) That the case is one of the
grounds in sec 1
 (2) That there is no sufficient
security for the satisfaction of
the obligation of the defendant.
- Sec 3
o The complaint must be accompanied
with an affidavit
211 | c a v e a t e m p t o r
  Affidavit must allege the
grounds for the issuance of writ
of preliminary attachment:
 That the case is one of
the grounds in sec 1
 That there is no
sufficient security for
the satisfaction of any
favorable judgment that
plaintiff may have.
o Remember affidavit of merit in a motion
to set aside default order?
 FAME?
 In the motion, ibutang ang
circumstances constituting
FAME and the meritorious
defense, unya mag-attach pajud
ug Affidavit of Merit.
 Unsa may naa sa
Affidavit of merit? Mao
ra gihapon. I-copy paste
ratong naa sa motion
didto sa affidavit.
 What is the purpose?
Nganu mag affidavit
paman nga naa naman
sa complaint? Ayawg
comply. Kay para
imong motion madeny.
Lol
 One of the requirements
is that there should be
an affidavit.
o Under sec3, an order of attachment shall
be granted only when it appears by the
affidavit of the applicant, or of some
other person who personally knows the
facts, that a sufficient cause of action
exists, that the case is one of those
mentioned in section 1 hereof, that there
is no other sufficient security for the
claim sought to be enforced by the
action, and that the amount due to the
applicant, or the value of the property
the possession of which he is entitled to
recover, is as much as the sum for which
the order is granted above all legal
counterclaims.
o Kanang affidavit, kung ang application
for the issuance of writ of preliminary
attachment is incorporated in the
complaint, the affidavit should be
attached in the complaint.
 Unsay isulti sa affidavit, mao
puy iapil sa complaint which is
praying for issuance of writ of
preliminary attachment.
- Still Sec 3:
o After the court has granted the
application or the motion, the clerk of
court should not issue the writ unless the
plaintiff has posted a bond.
o In the order issued by the court granting
the application or the motion, the court
has to fix the bond to be posted by the
plaintiff.
 And the bond should be posted
before issuance of the writ by
the clerk of court.
o Purpose of the bond is to answer for
damages that the defendant may suffer
by virtue of the writ of preliminary
attachment
 Mao ni gitawag nga
―attachment bond‖
 To answer of the damages
especially if later on, it would
be found that the plaintiff is not
entitled to the issuance of the
writ
 Labi na ug mapildi. The
defendant may run after the
bond.
See (as to the requirements)
- Carlos vs Sandoval
- Watercraft vs Wolfe (Sept 9, 2015)
In all the provisional remedies, the common requisite is:
- Affidavit and bond
o Exc support pendente lite because it
does not require a bond.
Sec. 4.
Condition of applicant's bond.
212 | c a v e a t e m p t o r
 The party applying for the order must thereafter give a Suppose, after the enforcement, the sheriff will serve
bond executed to the adverse party in the amount fixed summons.
by the court in its order granting the issuance of the writ, - After na gibira, mao pa’y pagserve sa summons.
conditioned that the latter will pay all the costs which - Would the service of summons cure the defect in
may be adjudged to the adverse party and all damages the implementation of the writ?
which he may sustain by reason of the attachment, if the o No.
court shall finally adjudged that hte applicant was not o Subsequent service of summons upon
entitled there to. defendant will not cure the defect.
o SC: Torres vs Satsatin (Nov 25, 2009)
- Bond must be posted before issuance of the writ  In Provisional remedies,
by the clerk of court, but after the court issues an particularly that of preliminary
order granting the application or motion. attachment, the distinction
between the issuance and the
Purpose of attachment bond to be posted by the plaintiff implementation of the writ of
is to answer for damages that the defendant may suffer attachment is of utmost
by virtue of the issuance of the writ, especially if later on importance to the validity of the
it would be found that the plaintiff is not entitled to the writ. The distinction is
issuance of the writ indispensably necessary to
determine when jurisdiction
Sec. 5. Manner of attaching property. over the person of the defendant
should be acquired in order to
The sheriff enforcing the writ shall without delay and validly implement the writ of
with all reasonable diligence attach, to await judgment attachment upon his person.
and execution in the action, only so much of the property  SC reiterated the 3 stages in the
in the Philippines of the party against whom the writ is granting of preliminary
issued, not exempt from execution, as may be sufficient attachment – issuance of the
to satisfy the applicant's demand, unless the former order granting the application or
makes a deposit with the court from which the writ is motion, issuance of the writ
issued, or gives a counterbond executed to the applicant, itself, implementation
in an amount equal to the bond fixed by the court in the  SC: The preliminary writ of
order of attachment or to the value of the property to be attachment must be served after
attached, exclusive of costs. No levy on attachment or simultaneous with the service
pursuant to the writ issued under section 2 hereof shall of summons on the defendant
be enforced unless it is preceded, or contemporaneously whether by personal service,
accompanied, by service of summons, together with a substituted service or by
copy of the complaint, the application for attachment, publication as warranted by the
the applicant's affidavit and bond, and the order and writ circumstances of the case. The
of attachment, on the defendant within the Philippines. subsequent service of summons
does not confer a retroactive
- Upon the execution or enforcement of the writ, it acquisition of jurisdiction over
must be couple with service of summons. her person because the law does
- If the writ is enforced or served without being not allow for retroactivity of a
preceded by a service of defendant or without belated service.
defendant being contemporaneously served with
summons? It must be served with summons.
o Execution of the writ would be void and - Suppose, the defendant could not be served with
the properties would be returned to the summons because he is not residing in Ph.
defendant. o The contemporaneous service could be
excused.
213 | c a v e a t e m p t o r
 o Sec 5 last par:
 The requirement of prior or
contemporaneous service of
summons shall not apply where
the summons could not be
served personally or by
substituted service despite
diligent efforts, or the defendant
is a resident of the Philippines
temporarily absent therefrom, or
the defendant is a non-resident
of the Philippines, or the action
is one in rem or quasi in rem.
Sec. 6. Sheriff's return.
After the implementation of the writ, the sheriff is
required to make a report or return.
- Magbuhat ug inventory which properties were
taken
Sec. 7. Attachment of real and personal property;
recording thereof.
- Tells us the procedure for conducting of levy on
attachment of different kinds of property.
o So the procedure of the execution of the
writ of preliminary attachment.
Let’s start with personal properties under (b)
- If the subject of the writ is personal property,
dalhan ug de karga sa sheriff.
- (b) Personal property capable of manual
delivery, by taking and safely keeping it in his
custody, after issuing the corresponding receipt
therefor;
If real properties, (a):
- All the sheriff has to do is to file with the
Register of Deeds a copy of the order (the writ
of preliminary attachment) ang Register of
Deeds
If shares of stock of a corp, (c):
- Tagaan ug copy sa writ ang president or
managing agent, as well as a notice stating that
the stock or interest of the party against whom
the attachment is issued is attached in pursuance
of such writ;
o Tagaan ug kopya.
For debts and credits involving bank deposits, (d):
- by leaving with the person owing such debts, or
having in his possession or under his control,
such credits or other personal property, or with
his agent, a copy of the writ, and notice that the
debts owing by him to the party against whom
attachment is issued, and the credits and other
personal property in his possession, or under his
control, belonging to said party, are attached in
pursuance of such writ
o mao ning i-garnish.
- Tagaan ug copy sa writ, with a notice that the
defendant should not be allowed to withdraw
those deposits and the deposits shall be kept by
the garnishee.
- Remember: The bank is not part of the case.
Kinahanglan ba issuehan ug summons?
o No need.
o The service of the writ upon the bank
would be sufficient.
- The garnishee shall has to keep the amount and
not to allow the defendant to withdraw until the
case is terminated.
o Pugngan ra sa bank ang deposit. Dili ra
withdrawhon sa sheriff. Kay wala
paman nahuman ang case. Ipondo rato
didto.
If the defendant is already dead, (e)
- Diba naay instances nga ang case mucontinue
bisag patay na ang defendant? Unsaon man tong
writ of attachment?
o A copy of the writ should be served on
the executor or administrator or other
personal representative of the decedent
with a copy of the writ and notice that
said interest is attached
- A copy of said writ of attachment and of said
notice shall also be filed in the court where the
intestate proceeding is held.
Pwede ba nga ang property in custodia legis be attached?
Yes.
- If the property sought to be attached is in
custodia legis, a copy of the writ of attachment
shall be filed with the proper court or quasi-
214 | c a v e a t e m p t o r
 judicial agency, and notice of the attachment
served upon the custodian of such property.
Sec. 8.
Effect of attachment of debts, credits and all other
similar personal property.
- Effect of attachment of intangible properties
such as bank deposits
As discussed, the debtor of the defendant should keep…
- For example, the bank is considered as the
debtor of the defendant against whom a writ of
preliminary attachment is issued.
o The bank, who is served a copy of the
writ of attachment, is duty bound to
keep the deposit of the defendant and
should not allow the defendant to
withdraw the same, to wait for the
termination of the case, and so that
when the plaintiff would eventually win
a case, then the sheriff now would go
back to the bank and would require the
bank to pay the amount equivalent
- So that when the plaintiff would eventually win
the case, the sheriff now would go back to the
bank and require the bank to pay such amount
equivalent to the amount that the defendant is
obliged to pay to the plaintiff
o IOW, whenever there is garnishment
issued, there will be a so-called forced
novation
 Kay dba for example, in bank
deposits, the bank is the debtor
and the depositor is the creditor.
 Ang bank, imbes adto mubayad
ang bank sa depositor, adto siya
mubayad sa plaintiff.
Sec. 11. When attached property may be sold after
levy on attachment and before entry of judgment.
This is about perishable goods.
GR: Property subject to attachment should not be
disposed because the same should wait for the outcome
of the case.
- Ang propertiesgicustodia legis lang para
masiguro ang plaintiff nga kung makadaog ang
plaintiff, naa siyay property nga maattach.
o So those attached properties will serve
as security, provided makadaog siya.
- Dili ra idispose ang property. Ang deposits in
the bank, dili iwithdraw. Unya ra iwithdraw if
mahuman na ang case, kanang makadaog ang
plaintiff.
EXC:
- But if the subject, the attached properties, are
perishable goods, the same shall be sold in a
public auction and the proceeds should be
deposited in court to abide in the judgment in the
action.
o The court may order such property to be
sold at public auction in such manner as
it may direct, and the proceeds of such
sale to be deposited in court to abide the
judgment in the action.
Sec. 12. Discharge of attachment upon giving
counterbond.
If you were counsel for defendant, what would be your
remedies? What will be your course of action after the
court has issued or granted the application or motion for
the issuance of preliminary attachment?
- Under Sec 2, of Rule ??
- The immediate remedy of the defendant after the
writ of preliminary attachment is issued is to
make a cash deposit in the court equivalent to
the amount of his obligation.
o Remember the 3 stages. The first two
are done ex parte.
o Most likely, sa 3rd stage na ipahibalo nga
gipangimbargo na sa sheriff ang
properties.
- What is the remedy of the defendant so that the
writ of attachment will be lifted so the properties
will be returned or he may withdraw again in the
bank?
o His immediate remedy is to make a cash
deposit in court equivalent to the value
of his obligation.
o Or he may post a counterbond in the
amount equivalent to the value of his
obligation.
215 | c a v e a t e m p t o r
Purpose of the cash deposit or counterbond?
- If naa money equivalent to the value of his
obligation.
- The purpose of cash deposit or counterbond is to
serve as security for the plaintiff, whatever
favorable judgment the plaintiff may have later
on.
o TN: Plaintiff is insecure. So magpost ug
counterbond in the same amount fixed
by the court.
o So if the amount fixed by the court for
the attachment bond to be posted by the
plaintiff is 1M, then all the defendant
has to do is to post the amount of 1M as
counterbond.
 TN: As discussed, the order
granting the preliminary
attachment can be issued ex
parte.
 But, the order lifting or setting
aside the writ of preliminary
attachment, by reason that the
defendant has made a cash
deposit or posted a counterbond,
cannot be lifted ex parte. It can
only be done after notice and
hearing.
Security Pacific Assurance Corp vs Tria-Infante (468
SCRA 526)
- Posting of a counterbond does not automatically
discharge the writ of attachment. It is only done
after hearing and after the judge has ordered the
discharge of the attachment if a cash deposit is
made or a counterbond is executed to the
attaching creditor is filed, that the writ of
attachment is properly discharged.
- If the counterbond posted by the defendant is
insufficient, plaintiff may file a motion for the
issuance of a new attachment order.
Sec 13 Discharge of attachment on other grounds
Other grounds for the setting aside or lifting of writ
of preliminary attachment?
- When writ of preliminary attachment is
improperly issued or improperly enforced
o As discussed, writ of preliminary
attachment should only be issued based
on those grounds mentioned in Sec 1
R57.
 If it is found later on that the
court committed error in issuing
the writ, then it can be set aside.
- When writ of preliminary attachment is
improperly enforced
o Even if the writ was properly issued, if
there is defect in the enforcement
because it was not preceded with
summons or the defendant was not
contemporaneously served with
summons, or if the bond posted is
insufficient or invalid, then it can be set
aside because the enforcement was void.
 There are bonding companies
nga nagnegosyo ana.
Magkinahanglan na sila ug
clearance from the SC (just like
stores nga kinahanglan ug
permit). There is this bonding
company nga maoy niissue sa
bond pero wala diay siyay
clearance sa SC. So the bond
was void.
 What will happen to the
preliminary attachment?
 The same can be set
aside.
 Remember case of Torres vs
Satsatin? Mao ni.
o But TN: Writ of preliminary attachment
can only be set aside after notice and
hearing.
- When properties attached are exempt from
execution (under Rule 39)
o Under Rule 39, there are properties
exempt from execution. Such properties
will not be subject to preliminary
attachment.
- When the attachment is excessive
o The excess of the amount of the
properties attached shall be returned to
the plaintiff
- When the judgment is rendered against
attaching creditor (or against the plaintiff)
o So napildi ang plaintiff
- Allegations in the complaint are insufficient
216 | c a v e a t e m p t o r
Again, TN that before the court will set aside the writ of - What is now the remedy of the third party
preliminary attachment, there must be notice and hearing claimant?
to the plaintiff. o Nipirma man unta siyag affidavit para
- Magaling, et al vs Ong (Aug 13, 2008) mapugngan ang sheriff. Unya kay nipost
man ug bond ang plaintiff.
Sec 14 Proceedings where property claimed by third o Remedy of the third party claimant in
person order to vindicate his right over the
property?
Remember Terceria under R39?  Matod pa niya, iyaha jud tong
- Suppose a property is attached which belongs to auto and not of the defendant.
a third person, what is the remedy of the third  He has cumulative remedies.
person whose property is attached by the sheriff Pwede hutdon tanan.
based on the writ of preliminary attachment  TN: Cumulative, not
issued by the court? alternative.
o Third party claimant should execute an o Aside from the execution of terceria, he
affidavit may also file a motion for summary
 This is called terceria hearing on his claim or may file a
 Ang kanang terceria, affidavit motion to set aside attachment order
na. over his property.
o Unsa man ang iindicate sa affidavit?  He may ask or file a motion in
 It shall be stated in the affidavit court to conduct summary
the basis of his claim for hearing on his claim
ownership or right of possession o Or, if the court denies his motion, he
over the property attached by may file a separate civil action for the
the sheriff. vindication of his right over the property
o A copy of the affidavit shall be served attached by the sheriff
and given to the sheriff and to the  He may file a case for recovery
plaintiff’s counsel. of possession over the
o Once the sheriff has received the attached property
affidavit of the third party claimant, the  In such case, he can ask
sheriff is not any more duty-bound to the court where it is
keep the property. filed to issue a
- What is the remedy of the plaintiff when the temporary restraining
third party claimant files an affidavit? order or writ of
Remember R39 S16? preliminary injunction
o Remedy of the plaintiff is to put another to enjoin the sheriff
bond. from attaching his
 So duha na ka-bond ang iyang property.
ibutang:  Pwede diay na nga muenjoin
 First, the attachment siya sa court of the same level?
bond, and  Would it not violate
 Second, a bond which Doctrine of Non-
would answer whatever Inteference of Judicial
damage that the third Stability? No.
party claimant may  SC: It would not
suffer. constitute an
o After the plaintiff would post another interference with the
bond, sheriff now may proceed with the writ of attachment
attachment of the property. issued by the other
217 | c a v e a t e m p t o r
 court, as this remedy is  Dili na pwede
sanctioned by the Rules intervention. Kay ang
of Court. intervention maavail
 SC: Traders Royal vs lang kung wala pa
IAC (Oct 31, 1984) makarender ug
 Another case: judgment ang court.
 The writ of preliminary
attachment issued by So those are the cumulative remedies available to the
the court did not specify third part claimant.
or mention specific - Pwede hutdon tanan.
properties. It mentions
only properties. All of the remedies are available to the third party
o Another remedy of third party claimant claimant under R39 Sec 16, exc intervention.
to vindicate his right over the property
attached? What is the difference b/w third party claim and third
 He can also file an injunction party complaint?
to enjoin sheriff from - Be sure to give the distinctions between the two.
attaching his property. In that
injunction case, he may apply Sec. 15.
for the issuance of a TRO Satisfaction of judgment out of property attached;
o Another remedy: file a motion for return of sheriff.
intervention
 Remember motion for Nakadaog na ang plaintiff, then the property attached
intervention? When can it be now should be used to satisfy the judgment.
availed? - Kung kadto nang bank deposits or intangible
 It is available to a properties under Sec 15(c), the sheriff now
person who is not a would collect to persons who have credits
party to the case but is belonging to judgment obligor.
interested in the - Kung pananglitan, real or personal properties?
property involved in the They shall be sold on execution.
case before the court
renders judgment. Sec 16 Balance due collected upon an execution;
 A motion for excess delivered to judgment obligor
intervention is available
for a person who is not If there is balance after sale?
a party to a case but - The same shall be returned to the obligor.
interested in a property
subject to the case Sec. 17. Recovery upon the counter-bond.
before the court renders
judgment. Suppose, writ of preliminary attachment is set aside
 So intervention may be because of the counterbond posted by the defendant.
filed before the court Nakadaog man ang plaintiff.
will render judgment in - The plaintiff now has to run after the
a case. counterbond.
 But TN: This does not apply to
R39 kadtong naay third party Sec. 18. Disposition of money deposited
claimant because R39
presupposes that the decision is If the defendant has made a cash deposit?
final and executory
218 | c a v e a t e m p t o r
 - Cash deposit is also one of the grounds of
setting aside the writ of preliminary attachment.
- Nakadaog naman ang plaintiff.
- Under Sec 18, the cash deposited by the
defendant shall be used to satisfy the obligation
of the defendant adjudged by the court.
Sec 19. Disposition of attached property where
judgment is for party against whome attachment was
issued.
Suppose, the judgment is against the plaintiff. Napildi
ang plaintiff.
- If the plaintiff is lost in the case, the writ of
preliminary attachment shall be dissolved.
- This is one of the grounds of the dissolution of
the writ: when the judgment is against the
attaching plaintiff.
Sec. 20. Claim for damages on account of improper,
irregular or excessive attachment.
Suppose, defendant has suffered damages by reason of
the attachment?
- No problem.
- Before issuing the writ, the plaintiff is required
to post attachment bond.
o So, defendant now has to claim damages
against the bond.
Nakadaog ang plaintiff. Possible ba nga makaclaim
gihapon ang defendant for damages?
- Yes.
- For example when the writ was improperly
issued or enforced. He could claim damages
from the plaintiff through the bond.
Even if the judgment of the court is in favor of the
plaintiff, there is still a possibility that defendant can
claim for damages based on the issuance of the writ
- Such as, when the writ was improperly issued.
- This was a subject of a barq based on Carlos vs
Sandoval (471 SCRA 266)
Where should damages be claimed? Which court?
- He could claim for damages before the same
court where the case is pending. (sec20)
- An application for damages on account of
improper, irregular or excessive attachment must
be filed before the trial court before the trial or
before appeal is perfected or before the
judgment becomes executory, with due notice to
the attaching party and his surety or sureties,
setting forth the facts showing his right to
damages and the amount thereof. Such damages
may be awarded only after proper hearing and
shall be included in the judgment on the main
case.
- Again, basis? Improper or irregular issuance or
enforcement of the writ of preliminary
attachment, and his claim can be filed before the
trial court during trial and before the judgment
becomes executory.
- The judgment regarding the payment of
damages could be included in the decision of the
court.
Kung didto na nadeclare nga improper ang issuance sa
writ on appeal sa writ? Where to file damages?
- Before the appellate court.
So, again, in R57, TN of the grounds, requisites, other
requisites other than the ground, and the remedies of the
defendant, remedies of the plaintiff.
RULE 58
PRELIMINARY INJUNCTION
This is also one of the bar favorites.
Section 1. Preliminary injunction defined; classes.
A preliminary injunction is an order granted at any
stage of an action or proceeding prior to the judgment or
final order, requiring a party or a court, agency or a
person to refrain from a particular act or acts.
- It may also require the performance of a
particular act or acts, in which case it shall be
known as a preliminary mandatory
injunction.
Classes of preliminary injunction:
1. Prohibitory
o Adverse party is ordered to refrain from
doing an act or acts
2. Mandatory
o Compel or require the performance of
an act
219 | c a v e a t e m p t o r

Purpose of Preliminary injuction? LAPU
- To restore the status quo or preserve the status
quo
o Status quo?
 It is the last, actual, peaceable
and uncontested situation prior
to the controversy.
Preliminary injunction is just ancillary. It presupposes
the existence of a main case.
- Main case could be:
o Injunction
o Specific Performance
o Special civil actions (certiorari,
prohibition, mandamus)
Example: In a civil case, the defendant honestly believed
that the action is barred by res judicata because there has
been a prior judgment or order issued by the court. He
filed a motion to dismiss, but it was denied. Considering
that the order denying the motion to dismiss is merely an
interlocutory order, he cannot file an appeal. What is his
remedy?
- File a petition for certiorari.
o Remember petition for certiorari will not
automatically stop the proceedings.
o In the defendant’s petition for certiorari,
he must incorporate the prayer for the
issuance of TRO and writ of preliminary
injunction, asking the court where the
petition is pending to issue an order
requiring the lower court to stop the
proceedings in the case. Kay nagtuo
man jud siya nga the action is already
barred by prior judgment.
Another example. A case is filed before the MTC. The
defendant says that the action is incapable of pecuniary
estimation. He argued that MTC has no jd over the case.
But motion to dismiss is denied. What is his remedy to
nullify the order of the MTC?
- File certiorari before RTC.
- Nya di man mu-aumatically stop ang certiorari
sa proceedings sa lower court, nya basin after
mahuman ang certiorari, nahuman nasad ang
proceedings sa lower court.
- What should he do?
o In his petition for certiorari, he has to
pray for the issuance of a TRO and
issuance of writ of preliminary
injunction.
BarQ: The water company (NAWASA) cut off its water
service to the residents of X for non-payment of water
bills for 6 months. X claims he has paid all the bills as
evidenced by receipts. NAWASA says receipts are fake
and refused water service to the residents of X.
- As counsel for X, what action will you take and
why?
o Suggested: As counsel for X, file action
for specific performance and damages,
and in the complaint, ask for the
issuance of TRO and writ of preliminary
injunction.
 Dayon istate dayon nimo ang
legal basis.
 Legal basis? Sec 1
- Q was based on the ruling of SC in Meralco vs
Del Rosario (22 PHIL 433)
Sec. 2. Who may grant preliminary injunction.
As discussed, just like the other provisional remedies, a
preliminary injunction may be granted by the court
where the action or proceeding is pending.
If the action or proceeding is pending in the Court of
Appeals or in the Supreme Court, it may be issued by
said court or any member thereof.
- May be issued by any member of CA or SC.
May MTC issue a preliminary injunction?
- Yes, provided the main case is pending in the
court and it has jd.
- Example where MTC can file preliminary
injunction?
o Ejectment (Forcible entry or unlawful
detainer)
Limitations in the issuance of preliminary injunction:
- (1) The TRO or preliminary injunction issued by
the court is effected only within its judicial
region.
o Judicial region is the same with our
political region.
220 | c a v e a t e m p t o r
  Region 7, unsa nga mga
province ang income nicompose
sa Region 7?
 So anha ra kutob dira
ang effectivity sa
preliminary injuction na
iissue sa court.
 It has no effect if it was
implemented or
executed beyond its
judicial region.
- (2) It cannot be issued in unfair labor
practices
o So if naay mga trabahante nga
magstrike, dili na pwede issuehan ug
TRO aron dili mudayon sa ilang strike.
- (3) The court or the RTC has no power to issue a
TRO or writ of preliminary injunction against
quasi-judicial bodies.
o Remember Rule 43? Kadtong different
quasi-judicial bodies?
 RTC has no jd
- (4) A court cannot issue a writ of preliminary
injunction over an order or judgment ordered
by a court of concurrent or coordinate jd.
o Kung parehos gani silag level, dili
pwede.
o For example, RTC Cebu City dili pwede
muissue ug writ of preliminary
injunction sa lain nga branch or sa lain
nga court.
 For example, tua sa mandaue
nya parehos ra niyag level.
 Dili pwede because it will
violate the doctrine of Non-
Interference or Judicial
Stability.
 EXC: When a third party or a
stranger to the action asserts a
claim to the property levied
upon by the sheriff.
 So gawas lng atong
third party claim.
Pwede kay giallow sa
Rules of Court.
- (5) The court (the RTC) has no jd to restrain
or to issue a writ of preliminary injunction
against the Collector of Customs involving the
issuance of a seizure and forfeiture order of
imported goods.
 Not in the codal. TN. Asked in
the bar twice.
o RTCs are precluded from assuming
cognizance over matters which are
within the exclusive jd of the Collector
of Customs even for petitions for
certiorari, prohibition or mandamus.
 For example, Bureau of
Customs issues an order for the
seizure and forfeiture of
imported goods. RTC cannot
issue a TRO or writ of
preliminary injunction if there is
a petition for certiorari filed in
court involving that order issued
by the Collector of Customs.
 Zamora vs GACO (Aug 24
2000)
o The Bureau of Customs or the Collector
of Customs has exclusive jd over seizure
and forfeiture cases under the Tariff and
Customs Code.
- (6) The courts (RTC) cannot issue TRO or writ
of preliminary injunction involving
infrastructure projects of the National
Government.
o Di pwede muissue ug TRO against
DPWH nga undangon ang infrastructure
project nga giundertake sa DPWH
o This is under RA 8975
- (7) Under RA 9136, courts are also prohibited
from issuing TRO or writ of preliminary
injunction against TRANSCO (bahin sa
kurente)
- (8)Under AM No. 99-10-05-0 (March 10, 2007)
o Courts are also enjoined or prohibited
from issuing TRO or writ of preliminary
injunction against extrajudicial
foreclosure of real estate mortgage,
unless accompanied by proof of
payment.
o Kana bitawng sa extrajudicial
foreclosure? I-foreclose na sa bank, for
example. Debtors, aron mapugngan ang
foreclosure, mufile dayon ug complaint
for the declaration of nullity of the real
221 | c a v e a t e m p t o r
 estate mortgage with prayer for TRO o IOW, imo jung irecite ang elements sa
and preliminary injunction. causes of action
 Dili pwede muissue ang court 3. There is an urgent need for the writ to
ug TRO and preliminary prevent irreparable injury to the applicant
injunction, exc when there are o Irreparable injury is one incapable of
receipts attached to the pecuniary estimation
application showing that the o Kana bang dili nimo makwenta ang
plaintiff who is the debtor have amount sa damage
paid the mortgagee. o For example, naa kay balay
gipaabangan. Unya, wala niabang.
Sec. 3. Grounds for issuance of preliminary Gipadalhan nimog demand to vacate.
injunction. Wala gihapon niabang. So imong
gifilean ug unlawful detainer.
What are the grounds or requisites for the issuance of  In your complaint for UD, you
preliminary injunction? asked for the issuance of TRO
o This is under Sec 3 and Sec4, and this and writ of preliminary
was discussed in several cases, injunction. Imong gibutang nga
including the case of Bicol Medical musuffer ka ug damage kung
Center vs Butor (Oct 4, 2017) padayon pa siya mustay sa
1. The applicant must have a clear and inyong balay. Is the prayer for
unmistakable right to be protected the issuance of TRO? Is there
2. There is a material and substantial invasion or sufficient basis for the issuance
violation of such right on the part of the of TRO and writ of preliminary
defendant injunction? No.
3. There is an urgent need for the writ to prevent  The prayer could be
irreparable injury to the applicant denied. Tinuod, naa kay
4. No other adequate, speedy and ordinary remedy damage nga masuffer
to prevent infliction of irreparable injury. kay nagpadayon gud
5. Additional requisites: siyag puyo.
a. If the application for the issuance of the  But the damage can be
TRO or writ of preliminary injunction is computed. Imo ranang
included in the complaint, the complaint kwentahon kung pila
must be verified and accompanied by an kabulan or tuig nga
affidavit. mustay kung samtang
b. There must be a notice and hearing prior magpadayon ang case.
to the issuance of the TRO  So this is capable of
c. After the issuance of order granting pecuniary estimation.
issuance of TRO, plaintiff must post an There is no basis for the
injunction bond issuance of TRO or
preliminary injunction
Requirements, discussed: because one of the
1. The applicant must have a clear and requisites is that the
unmistakable right to be protected applicant or plaintiff
o This is what is called ―right in esse‖ would suffer irreparable
o IOW, he is entitled to the relief injury.
demanded o Example of irreparable injury.
2. There is a material and substantial invasion Enrolment. Gusto ka muenrol. Wala kay
or violation of such right on the part of the hagbong. Wala sad kay disciplinary
defendant
222 | c a v e a t e m p t o r
 infractions nabuhat. Pag enroll nimo,
gibalibaran ka sa school.
 Kung pananglitan mufile kag
case sa school aron pugson jud
kag dawat, unya nangayo ka nga
muissue ang court ug TRO and
writ of preliminary injunction.
 Musuffer baka ug irreparable
injury kung ideny ka sa
enrolment? Yes.
 Ang irreparable injury
is di ka maenroll.
 Can it be qualified into
damages? Naa ba’y
computation ana? No.
o This is an
example of
irreparable
injury which is
beyond
pecuniary
estimation.
o Lahi ni sa ejectment ganina nga
makwenta ang bayrunon.
o Irreparable injury is not enough. There
must be urgent need
 Not just the applicant will suffer
irreparable injury.
 There must also be an urgent
need for the writ to prevent
irreparable injury to the
applicant or plaintiff.
4. No other adequate, speedy and ordinary
remedy to prevent infliction of irreparable
injury.
5. Additional requisites:
a. If the application for the issuance of the
TRO or writ of preliminary injunction is
included in the complaint (which is
usual), the complaint must be verified
and accompanied by an affidavit.
 State in the complaint
 The grounds (requistes)
 Clear and unmistakable
right to be protected
(right in esse)
 There is material and
substantial evasion of
such right
 Plaintiff will suffer
irreparable injury unless
defendant will be
restrained from
committing such act
 Affidavit must be executed, and
must also state the allegations in
the complaint.
b. There must be a notice and hearing prior
to the issuance of the TRO
 Unlike preliminary attachment,
a TRO and preliminary
injunction cannot be issued
without notice and hearing.
 EXC: Issuance of a
72hr TRO by the
executive judge.
c. After the issuance of order granting
issuance of TRO, plaintiff must post an
injunction bond
 There must be a bond posted by
the plaintiff prior to the issuance
of the TRO and the writ of
preliminary injunction.
The process above is a summary in Section 3, which
states:
- A preliminary injunction may be granted when it
is established:
o (a) That the applicant is entitled to the
relief demanded, and the whole or part
of such relief consists in restraining the
commission or continuance of the act or
acts complained of, or in requiring the
performance of an act or acts, either for
a limited period or perpetually;
o (b) That the commission, continuance or
non-performance of the act or acts
complained of during the litigation
would probably work injustice to the
applicant; or
o (c) That a party, court, agency or a
person is doing, threatening, or is
attempting to do, or is procuring or
suffering to be done, some act or acts
probably in violation of the rights of the
applicant respecting the subject of the
action or proceeding, and tending to
render the judgment ineffectual
223 | c a v e a t e m p t o r

Sec. 4. Verified application and bond for preliminary
injunction or temporary restraining order.
A preliminary injunction or temporary restraining order
may be granted only when:
(a) The application in the action or proceeding is
verified, and shows facts entitling the applicant to the
relief demanded; and
- This is if the application is incorporated in the
complaint
o So if the application is incorporated in
the complaint, the complaint must be
verified.
o If it is not, the motion must be verified,
accompanied by an affidavit.
(b) Unless exempted by the court, the applicant files
with the court where the action or proceeding is pending,
a bond executed to the party or person enjoined, in an
amount to be fixed by the court, to the effect that the
applicant will pay to such party or person all damages
which he may sustain by reason of the injunction or
temporary restraining order if the court should finally
decide that the applicant was not entitled thereto. Upon
approval of the requisite bond, a writ of preliminary
injunction shall be issued.
- There must be a bond, unless exempted by the
court.
- Purpose of the bond?
o To answer whatever damage that the
defendant may suffer for the issuance of
the motion.
- Pananglitan, naay public road sa inyo. Kalitan
ug sira. Would you suffer irreparable injury? Or
the damage would be capable of pecuniary
estimation?
o What should you do?
 File appropriate case, with
prayer for the issuance of TRO
and preliminary injunction.
o But one of the requisites is the posting
of an injunction bond.
- In the order issued by the court granting the
motion or application, the court has to fix the
amount of the bond.
- After the posting of the bond, that would be the
time that the writ would be issued.
(c) When an application for a writ of preliminary
injunction or a temporary restraining order is included in
a complaint or any initiatory pleading, the case, if filed
in a multiple-sala court, shall be raffled only after notice
to and in the presence of the adverse party or the person
to be enjoined. In any event, such notice shall be
preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the
complaint or initiatory pleading and the applicant’s
affidavit and bond, upon the adverse party in the
Philippines.
- If the prayer for the issuance of TRO or the writ
of preliminary injunction is included in the
complaint, before the case is raffled, the raffle
should only be held after notice to and the
presence of the defendant or the person to be
enjoined.
o Cases, when filed in a court with
multiple branches, iraffle na as to which
branch ang iraffle.
o Raffle is not needed if single-sala court
(kanang usa ra, walay branch)
- The notice of the raffle shall be preceded or
contemporaneously accompanied by service of
summons.
o So ang kadtong notice of raffle, ubanan
nato daan sa service of summons.
o Wala pa gani notice, walay raffle.
- Nya urgent man ni kay naay TRO, ispecial raffle
ni.
- There are courts that are subjected to electronic
raffling.
o Sec4(c) will not apply if the court is
subjected to e-courts.
 But gamay raman nga courts
ang e-courts. Naa ra gihapoy
courts nga magmanual ug raffle.
 Sa kadtong mga court nga apil
sa ecourt, inig file nimo sa case,
makahibaw ka dayon asa nga
court naraffle, asa nga court
pending.
However, where the summons could not be served
personally or by substituted service despite diligent
efforts, or the adverse party is a resident of the
Philippines temporarily absent therefrom or is a
nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not apply.
224 | c a v e a t e m p t o r
(d) The application for a temporary restraining order
shall thereafter be acted upon only after all parties are
heard in a summary hearing which shall be conducted
within twenty-four (24) hours after the sheriff’s return of
service and/or the records are received by the branch
selected by raffle and to which the records shall be
transmitted immediately.
- Before the issuance of the TRO or writ of
preliminary injunction, there should be a hearing
of the application
- Naghisgot man tag ug manual raffle, inig human
sa raffle, ang court nga narafflean muconduct
dayon ug hearing within 24hrs w/n a TRO shall
be issued after receipt of case record.
o Nganung ihearing man dayon?
 Because there is a prayer or
application for the issuance of a
TRO.
 If there is a prayer for the
issuance of TRO, meaning ana
dinalian kaayo. It is urgent and
the plaintiff would suffer
irreparable injury.
What is a TRO?
- Temporary restraining order.
- A TRO is an order to maintain the status quo
between or among the parties until the
determination of the prayer for the issuance of
preliminary injunction.
- As discussed, kanang preliminary injunction, the
purpose is to preserve the status quo (last, actual,
peaceable and uncontested situation prior to the
controversy).
o Before the issuance of the preliminary
injunction, naay mas paspas nga pwede
ipray sa plaintiff – and that is the
issuance of a TRO which would last for
20 days.
What is the difference between a TRO and a status quo
order?
- Purpose of TRO and/or writ of preliminary
injunction is to preserve the status quo.
- SQO is usually issued only by the SC.
o Whereas, TRO is issued by the SC and
other lower courts.
- In the SQO, none of the parties is asking for it. It
is only motu proprio that the SC would issue the
same.
o TRO is prayed for by a party or by the
plaintiff or petitioner.
- SQO is based on equitable grounds.
o TRO, issuance of the same, is based on
the ROC.
- In a SQO, bond is not required.
o In the issuance of TRO, bond is required
unless the court would exempt the
applicant.
- A SQO is more of a cease and desist order. It
does not direct the doing or undoing of an act.
o TRO directs the doing or undoing of an
act by the defendant.
Sec. 5. Preliminary injunction not granted without
notice; exception.
No preliminary injunction shall be granted without
hearing and prior notice to the party or person sought to
be enjoined.
- Not only the issuance of writ of preliminary
injunction but also the issuance of TRO.
o No TRO can be issued without prior
notice and hearing.
Do not be mislead. TN of the 2nd sentence of the first
paragraph, because it is misleading.
- ―If it shall appear from facts shown by affidavits
or by the verified application that great or
irreparable injury would result to the applicant
before the matter can be heard on notice, the
court to which the application for preliminary
injunction was made, may issue ex parte a
temporary restraining order to be effective only
for a period of twenty (20) days from service on
the party or person sought to be enjoined, except
as herein provided.‖
- This sentence is misleading.
o The court cannot issue a TRO ex parte.
 There must be a notice and
hearing prior to the issuance of
TRO.
There is only one instance where the court may issue a
TRO ex parte.
- It is mentioned in the 2nd par
225 | c a v e a t e m p t o r
 - And the same can only be issued by the
executive judge of a multiple sala court or by the
presiding judge of a single-sala court.
- So, in a multiple branches court, only the
executive judge can issue a 72-hour TRO where
there is an extreme urgency.
o As discussed, in the issuance of TRO,
there must be an urgent need for the
issuance of the TRO to prevent the
defendant from committing an act which
would cause irreparable damage or
injury to the plaintiff.
 So when there is extreme
urgency and the applicant will
suffer grave injustice and
irreparable injury, the executive
judge of a multiple sala court or
by the presiding judge of a
single-sala court may execute
o The executive judge of a multiple-sala
court or the presiding judge of a single-
sala court may issue ex parte a
temporary restraining order effective for
only seventy-two (72) hours from
issuance but he shall immediately
comply with the provisions of the next
preceding section as to service of
summons and the documents to be
served therewith.
 As discussed, there are courts
that are already e-courts.
 The paragraph is only
applicable to courts not yet an e-
court.
 The 72-hour TRO presupposes
nga magraffle pa.
Assuming that the Executive judge issues a 72-hr TRO
- Who is an executive judge?
o In courts which is a multiple sala court,
there is a head that will be appointed by
the SC. And that is the executive judge.
o In single sala courts, automatic nga siya
maoy executive judge.
- If ever the executive judge issues a 72hr TRO
(presupposes not yet raffled), upon service of the
TRO, the sheriff shall serve the order together
with the service of summons. Same with
attachment.
o Magdala ug summons together with the
complaint and its annexes.
o The sheriff shall immediately serve the
summons upon the defendant, together
with the order granting the 72-hour
TRO.
Within the period of 72-hour, the branch where the TRO
is issued shall immediately conduct a hearing.
- Ang kanang TRO dinalian. Unahon jud.
o The branch where the case is raffled
with an application for TRO shall
immediately conduct a hearing within
that period of 72hrs.
- The purpose of the hearing is to determine w/n a
TRO shall be issued.
o The 72hrs sa executive judge dili na siya
pwedeng basihan sa branch diin naraffle
ang case.
o Kung niissue ang executive judge ug
TRO, dili na pasabot nga kadtong judge
diin naraffle ang case igrant pud ang
TRO
 Just because gigrant sa EJ ang
72 hour, dili pasabot igrant pd
ang TRO.
 The judge may deny the TRO
after hearing.
 Kay ang asa EJ, ex parte raman
to. It was only based on the
allegations of the complaint.
o After the hearing, if the judge where the
case is raffled finds that there is a need
to issue a TRO, he can grant the
application.
- The 72-hour TRO shall be included in the 20-
day period TRO.
o IOW, the lifetime of the TRO including
the 72 hours should not exceed 20 days.
Within the period of 20 days, the court shall conduct
another hearing.
- Meaning, there will be 2 hearings:
o Hearing before issuance of the TRO
Hearing before the issuance of the writ
of preliminary injunction
- Before issuing a writ of preliminary injunction,
there has to be a hearing to determine w/n a writ
of preliminary injunction shall be issued.
226 | c a v e a t e m p t o r

The TRO is effective only within 20 days.
- Ang kanang writ of preliminary injunction, if
ever issued by the court, would last up to the
termination of the case.
- But ang TRO, 20 days rajud.
o If the court fails to issue a writ of
preliminary injunction within the 20-day
period of the TRO, the TRO will
automatically expire after the 20-day
period if no writ of preliminary
injunction is issued.
Again, after the issuance of the 72-hour TRO, the
executive judge of a multiple sala court is bound to
comply with Sec4(c)
- This has something to do with the service of
summons.
- The 72 hour TRO automatically expires, unless
before the expiration of said period, the
presiding judge where the case was raffled
conducted a summary hearing in order to extend
the TRO’s lifetime.
The 72-hour TRO issued by the EJ is a separate and
distinct TRO which can stand on its own, regardless of
whether it is eventually extended or not.
- It is not a mere part of the 20-day TRO issued by
the judge to where the case was raffled.
- While it is separate, the 72hours shall be counted
to the 20 day period of the TRO.
See case: Lago vs Abul (Jan 17, 2011)
- SC: Again, Rule 58, as amended, mandates a full
and comprehensive hearing for the
determination of the propriety of the issuance of
a writ of preliminary injunction, separate from
the summary hearing for the extension of the 72-
hour TRO.
- The preliminary injunction prayed for by the
applicant can only be heard after the trial court
has ordered the issuance of the usual 20-day
TRO. Within such period, the court shall order
the party sought to be enjoined to show cause
why the writ of preliminary injunction should be
granted.
- Sa di pa muissue ug TRO, there has to be a
hearing. Sa di pa muissue ug preliminary
injunction, there has to be a hearing.
o Pero if magkasinabot ang parties,
pananglitan after hearing sa TRO,
muingon ang court ―let us set this court
for hearing for issuance of preliminary
injunction.‖ Muingon ang plaintiff nga
they have no further evidence, and prays
that the same evidence presented for the
issuance of TRO be considered as to
whether a writ of preliminary injunction
be issued.
 No more evidence as far as the
restraining order is concerned. It
is the only evidence available. If
maghearing, same evidence ang
if present.
 Ang kana gung hearing sa TRO
or writ of preliminary
injunction, dili man na mao ang
entire evidence sa plaintiff. It is
just a sample of the entire
evidence.
 Ang kadto rang pinakakusgan
ang ipresent.
Again, the lifetime of a TRO is only 20 days, including
the 72hr TRO.
- This is in the rules, and affirmed in Llanson vs
Logronio (June 26, 2007)
o In the case, the court issued a 2nd TRO
after lapse of 20 day period. Gibutang
didto, until further order from the court.
So until further notice.
o SC: Mura naman nag writ of
preliminary injunction. Parehos naman
na sa status quo order sa SC.
Pila man ang gidugayon sa TRO issued by the SC or by
the CA?
- Under Sec 5 last par: If it is issued by the CA or
any of its members, 60 days. If SC, until further
notice.
o No limit in the SC.
o Pwed 120 days, pwede 200 days. No
limit.
- Sa RTC, in the lower courts, 20 days only.
As discussed, there should be a hearing before the
issuance of TRO and before issuance of writ of
preliminary injunction.
227 | c a v e a t e m p t o r
- In a case, the court denied the TRO. Gawas nga
gideny niya ang TRO, gideny sad niya ang writ
of preliminary injunction. Nireklamo ang
plaintiff. Ingon ang plaintiff nga there should be
another hearing to determine w/n the writ of
preliminary injunction should be issued.
- Is the court correct sa pagdeny niya sa TRO,
wala na siya niconduct ug another hearing to
determine the propriety of the issuance of
preliminary injunction?
o SC: Yes, the trial court is correct.
o EVY Construction and Devt Corp vs
Valiant Roll Forming Sales Corp. (G.R.
No. 207938, October 11, 2017)
 SC: An application for
preliminary injunction may
be denied even without the
conduct of a hearing separate
from that of the summary
hearing of an application for the
issuance of a TRO.
 The application for the
issuance of a writ of
preliminary injunction may be
denied in the same hearing for
the issuance of TRO if the
applicant fails to establish the
requisites for the issuance of the
writ.
o In the case of EVY, SC reiterated the
meaning of irreparable damage or
irreparable injury.
 According to SC, injury is
considered irreparable if "there
is no standard by which its
amount can be measured with
reasonable accuracy."
 Meaning, beyond
pecuniary estimation.
 (lzl res) The injury must be such
that its pecuniary value cannot
be estimated, and thus, cannot
fairly compensate for the loss.
For this reason, the loss of
goodwill and business
reputation, being unquantifiable
would be considered as grave
and irreparable damage.
Chinabank vs Ciriaco (2012)
- Another decision regarding the requirements of
the issuance of TRO.
- SC: The holding of a hearing where both parties
can present evidence and present their side is
also required before the courts may issue a TRO
or an injunctive writ.
o IOW, during the hearing for the TRO, it
is not only the plaintiff who can present
evidence. Also the defendant could also
present evidence.
o According to SC, the court is required to
conduct a hearing for reception of a
"sampling" of the parties’ respective
evidence to give it an idea of the
justification for its issuance pending the
decision of the case on the merits.
Sec. 6. Grounds for objection to, or for motion of
dissolution of, injunction or restraining order.
These are the grounds for the denial of the application
1. The allegations in the complain is insufficient
o It was not alleged nga naa siyay right
(right in esse), and his clear and
unmistakable right, and that the damage
that the plaintiff would sustain is
irreparable damage.
2. The bond posted is insufficient.
3. It would be the defendant who would suffer
irreparable damage
4. Defendant has to post a bond
o Again, another ground for the lifting of
the writ is that the issuance of the writ
would cause irreparable damage to the
party or person enjoined while the
applicant can be fully compensated for
such damages as he may suffer
o Sa ato pa, sa plaintiff maoy capable of
pecuniary estimation.
 Ang defendant, based on the
issuance of the writ, musuffer
hinuon siya ug irreparable
injury.
 That could be a ground for the
lifting of the preliminary
injunction, provided the
defendant has to post a
counterbond.
228 | c a v e a t e m p t o r
 5. If the injunction bond is insufficient, the writ
could be dissolved. (Sec. 7. Service of copies of
bonds; effect of disapproval of same.)
o If the court allows the defendant to post
counterbond because he was able to ??
that it is he who will suffer irreparable
injury and that although plaintiff would
suffer injury, the injury that the plaintiff
would suffer is capable of pecuniary
estimation, the writ of preliminary
injunction dissolved may be restored if
the counterbond posted by the defendant
is insufficient.
Again, summary of the grounds for the dissolution or
denial of the application for the issuance of writ of
preliminary injunction:
1. Allegations in the complaint are insufficient
o Insufficient, meaning wala naallege
tanang requisites for the issuance of
preliminary injuction
2. Defendant is allowed to post counterbond if it is
shown that he would sustain irreparable injury
while the plaintiff can be compensated to the
damages he suffered
3. When the bond posted by the applicant turns out
to be insufficient or defective
Sec. 7. Service of copies of bonds; effect of
disapproval of same.
Suppose, later on, it is determined that the plaintiff is not
entitled to the issuance of TRO or writ of preliminary
injunction. In other words, the judgment is against the
plaintiff and the defendant suffered damage.
- Defendant can claim injunction bond, and his
claim for damages may be filed in the same
court.
RULE 59
RECEIVERSHIP
- The main action here could be foreclosure of
mortgage.
Receivership under R59 is different from receivership
mentioned in the Corporation Code.
Who is a receiver?
- A receiver is the administrator or caretaker of
the property subject of the case.
o Siyay mutan-aw sa property subject to
the case nga dili madestroy.
- Receivership is applicable only if there is
property involved in the case and that there is
a danger or possibility that the property
subject of the case will be dissipated, destroyed
or wasted.
- In order to prevent the property from being
damaged or materially injured, upon application
of one of the parties, the court has to appoint a
receiver.
Bar Q: In an action for sum of money, the plaintiff
applied for the appointment of a receiver of the
defendant’s property to assure the payment of the
obligation. Should the court grant the application?
- No.
- Receivership is not available in a mere suit or
mere action for sum of money. It is available
when the property or fund that is subject of
the litigation is in danger of being lost,
removed, or materially injured.
So in receivership, there is a property or funds which is
in danger of being lost, removed or materially injured
while the case is pending.
- Or even after the court has decided the case.
TN: If an application is incorporated in the complaint,
the complaint must be verified.
- Of if it is in the form of motion, the motion shall
be verified.
Section 1. Appointment of receiver.
Upon a verified application, one or more receivers of the
property subject of the action or proceeding may be
appointed by the court where the action is pending, or by
the Court of Appeals or by the Supreme Court, or a
member thereof, in the following cases:
(a) When it appears from the verified application, and
such other proof as the court may require, that the party
applying for the appointment of a receiver has an
interest in the property or fund which is the subject
of the action or proceeding, and that such property or
fund is in danger of being lost, removed, or
229 | c a v e a t e m p t o r
materially injured unless a receiver be appointed to
administer and preserve it;
(b) When it appears in an action by the mortgagee for the
foreclosure of a mortgage that the property is in danger
of being wasted or dissipated or materially injured,
and that its value is probably insufficient to discharge
the mortgage debt, or that the parties have so stipulated
in the contract of mortgage;
(c) After judgment, to preserve the property during the
pendency of an appeal, or to dispose of it according to
the judgment, or to aid execution when the execution
has been returned unsatisfied or the judgment obligor
refuses to apply his property in satisfaction of the
judgment, or otherwise to carry the judgment into effect;
- Even after judgment, receivership is applicable.
- Remember Rule 39, the right of redemption of
defendant?
o Kinsa toy mupossess sa property prior
the expiration of the 1yr redemption
period from the registration of the sale?
Defendant.
o If plaintiff, while waiting for the
redemption period to lapse, nakita niya
nga ang defendant gihinay-hinayan ug
guba ang balay subject to execution.
What is his remedy?
 Remedy is to ask for the
appointment of a receiver.
 This is one of the instances
where the appointment of a
receiver could be done even
after judgment
(d) Whenever in other cases it appears that the
appointment of a receiver is the most convenient and
feasible means of preserving, administering, or disposing
of the property in litigation.
During the pendency of an appeal, the appellate court
may allow an application for the appointment of a
receiver to be filed in and decided by the court of origin
and the receiver appointed to be subject to the control of
said court.
TN: Purpose of the appointment of a receiver.
- To preserve.
- Receivership presupposes that there is property
or fund involved in litigation and the
appointment of a receiver is necessary for the
preservation of the property.
o See: Chaves vs CA (Jan 20, 2010)
o SC: A petition for receivership requires
the property or fund subject of the action
is in danger of being lost, removed, or
materially injured, necessating its
protection or preservation. Its object is
the prevention of imminent danger to
the property.
o If the action does not require such
protection or preservation, the remedy is
not receivership.
Sec. 2. Bond on appointment of receiver.
The applicant is required to post bond.
And under Sec 4, the receiver himself is also required to
post bond.
- So two bonds are posted here:
o Bond for the applicant
o Bond for the receiver himself.
What is the purpose of applicant’s bond?
- To answer whatever damage the adverse party
may suffer.
What about the receiver’s bond?
- The purpose is to ensure that the receiver will
perform its duties.
o Because if not, the plaintiff/applicant
may run after his bond for damages.
Section 3-5 are the grounds for the denial or lifting of
the appointment of the receiver.
Sec. 3. Denial of application or discharge of receiver.
The application may be denied, or the receiver
discharged, when the adverse party files a bond executed
to the applicant, in an amount to be fixed by the court, to
the effect that such party will pay the applicant all
damages he may suffer by reason of the acts, omissions,
or other matters specified in the application as ground
for such appointment. The receiver may also be
230 | c a v e a t e m p t o r
discharged if it is shown that his appointment was
obtained without sufficient cause.
The appointment of the receiver could be set aside or
lifted if the adverse party would pose a counterbond.
- Counterbond is a mode of lifting the provisional
remedy.
- Additional requirement in this rule:
o That it is the defendant who is or who
would suffer irreparable damage.
 Whereas the plaintiff, although
would also suffer damage, his
damage is compensated.
Sec. 4. Oath and bond of receiver.
Before entering upon his duties, the receiver shall be
sworn to perform them faithfully, and shall file a bond,
executed to such person and in such sum as the court
may direct, to the effect that he will faithfully discharge
his duties in the action or proceeding and obey the orders
of the court.
Sec. 5. Service of copies of bonds; effect of
disapproval of same.
The person filing a bond in accordance with the
provisions of this Rule shall forthwith serve a copy
thereof on each interested party, who may except to its
sufficiency or of the surety or sureties thereon. If either
the applicant’s or the receiver’s bond is found to be
insufficient in amount, or if the surety or sureties thereon
fail to justify, and a bond sufficient in amount with
sufficient sureties approved after justification is not filed
forthwith, the application shall be denied or the receiver
discharged, as the case may be. If the bond of the
adverse party is found to be insufficient in amount or the
surety or sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties approved
after justification is not filed forthwith, the receiver shall
be appointed or re-appointed, as the case may be.
Another ground for the lifting of the appointment of the
receiver.
- When the bond of the applicant or bond posted
by the receiver himself is insufficient.
Sec. 6. General powers of receiver.
- power to bring and defend, in such capacity,
actions in his own name;
- to take and keep possession of the property in
controversy;
- to receive rents;
- to collect debts due to himself as receiver or to
the fund, property, estate, person, or corporation
of which he is the receiver; to compound for and
compromise the same;
- to make transfers; to pay outstanding debts;
- to divide the money and other property that shall
remain among the persons legally entitled to
receive the same;
- and generally to do such acts respecting the
property as the court may authorize
Sec. 7. Liability for refusal or neglect to deliver
property to receiver.
The person who withholds or refuses to deliver the
property to the receiver may be held for contempt, or
may be punished for contempt
Sec. 8. Termination of receivership; compensation of
receiver.
These are the reasons for the termination of the
receivership.
- If there is no more need for a receiver, then the
court may terminate receivership.
RULE 60
REPLEVIN
Replevin presupposes that there is a personal property to
be recovered.
- The main case could be replevin itself.
Replevin
- Case involving the recovery of personal property
o Case involving recovery of personal
property? Replevin.
Kung gusto ka nga mapossess dayon nimo ang personal
property while the case is pending, then the case for
replevin may be coupled with prayer or application for
231 | c a v e a t e m p t o r
the issuance of the provisional remedy of writ of
replevin.
Car loans. Adto sa bank. The writ of replevin is what
will be applied by the bank if ang borrower dili
makabayad and dili issurender ang sakyanan.
- Nangutang ka sa bank, wala ka nakabayad for no
reason, naa sa agreement nga for whatever
reason, isurrender na sa bank.
- Kung di nimo isurrender, the bank will go to
court for the recovery of that car, and with
prayer for the issuance of writ of replevin.
o Possible that the bank would file a
collection of sum of money with prayer
of writ of replevin.
o But pwede sad alternative remedy of
replevin or sum of money with prayer of
the issuance of writ of replevin.
 This is the usual remedy for car
dealers.
 Also for dealers of motorcycles.
Section 1. Application.
The application for the issuance of writ of replevin may
be incorporated in the complaint.
- Usually, it is incorporated in the complaint.
- Just like attachment, the writ of replevin can be
issued ex parte.
When can replevin be availed?
- It can be applied upon the filing of the
complaint, or at any time before answer is
served.
o Remember this. Limit to file an
application is short (before answer).
 Although, usually, the
application for this provisional
remedy is made or is
incorporated in the complaint.
Under sec 1, a party praying for the recovery of
possession of personal property may, at the
commencement of the action or at any time before
answer, apply for an order for the delivery of such
property to him, in the manner hereinafter provided.
Sec. 2. Affidavit and bond.
The application must be accompanied by an affidavit.
- If gi-incorporate sa complaint, attached to the
complaint should be an affidavit. Unsa may
ibutang didto?
o Grounds for the issuance of writ of
replevin.
o Icopy-paste ra gihapon tong gipang-
allege sa complaint, kay giincorporate
man nimo sa complaint.
 So complaint will also allege the
grounds.
 What are these
grounds? See Sec2
The applicant must show by his own affidavit or that of
some other person who personally knows the facts:
(a) That the applicant is the owner of the property
claimed, particularly describing it, or is entitled to the
possession thereof;
- If not the owner, show that he is entitled to the
possession
(b) That the property is wrongfully detained by the
adverse party, alleging the cause of detention thereof
according to the best of his knowledge, information, and
belief;
(c) That the property has not been distrained or taken
for a tax assessment or a fine pursuant to law, or seized
under a writ of execution or preliminary attachment,
or otherwise placed under custodia legis, or if so
seized, that it is exempt from such seizure or custody;
and
- Although writ of preliminary attachment and
replevin are more or less the same, lahi jud na
sila.
o Difference?
- Preliminary Attachment vs Replevin
o In PA, a property subject in custodia
legis can still be attached.
 In replevin, the property already
attached could no longer be
subject of replevin.
o Replevin is available only where the
principal relief sought in the case is the
recovery of possession of personal
property.
232 | c a v e a t e m p t o r
  In PA, attachment is available is
available even if the recovery of
personal property is only an
incidental relief sought in the
action
o Replevin can only be prayed when
defendant is in actual or constuctive
possession of personal property.
 Attachment may be resorted to
even if the personal property is
in the custody of a third person.
 Remember bank nga
pwede igarnish?
o So the property
could be in the
hands of a third
person.
 In replevin, it is not. It
is necessary that the
personal property be in
the actual or
constructive custody of
the defendant.
(d) The actual market value of the property.
- Another important requisite that must be stated
in the application is that the application must
state the actual value of the property
o Wala gani actual value, dismiss jud na
ang application.
- Just an estimate.
o For example, auto gusto nimo
paissuehan ug writ of replevin.
 Pila man ang estimate amount
sa auto?
- TN: Affidavit should be attached in the motion.
(e) Posting of the bond.
- Aside from affidavit, another requirement is the
posting of a bond.
- When should bond be posted? See flow in the
case:
Flow sa case:
- File ka ug case, Replevin with prayer of
issuance of writ of replevin.
o Basahon sa court imong complaint, with
a prayer for the issuance of a writ of
replevin.
- If the court finds that the complaint has alleged
all the requisites in Sec 2 for the issuance of the
writ, all the necessary allegations, the court now
has to issue an order for the issuance granting
the application and direct the clerk of court
for the issuance of the writ itself.
o In the same order, the court has to fix
the bond.
 How much? Double the amount
or value of the property.
 So if the value of the car as
stated is 1M, the amount of the
replevin bond should be 2M.
o After the posting of the bond, the writ
of replevin may be issued by the clerk
of court.
- After issuance of the writ of replevin, ihatag sa
sheriff ang writ unya ienforce.
o It should be coupled with the service of
summons.
o Although wala gibutang sa sec 4. Ang
gibutang ra, ―Upon receiving such order,
the sheriff must serve a copy thereof on
the adverse party, together with a copy
of the application, affidavit and bond,
and must forthwith take the property‖
o But usual practice is to serve upon the
defendant, together with the writ, the
summons.
- After the taking of the property by virtue of the
writ, the sheriff has to keep the property for 5
days.
o Within such period of 5 days, the
defendant may post a counterbond or
redelivery bond.
 Kung gusto siya nga dili
madeliever sa plaintiff ang
property, he has to post a
redelivery bond. How much?
Double the value of the
property. (Sec 5)
 Purpose of redelivery bond or
counterbond? To answer for
whatever damage that the
plaintiff may suffer.
 But in actual practice,
kung maissue na ang
replevin bond unya
kuhaon na ang
sakyanan, di na
magtagad2 ang
233 | c a v e a t e m p t o r
 defendant. Mukuha
nalang siyag bag-ong
sakyanan
o Ang iyang ipost
nga redelivery
bond, iya
nalang ikuhag
new car.
o Again, in order to recover possession of
the property which was taken under the
writ of replevin, the defendant must post
redelivery bond, and serve a copy of the
band on the plaintiff within 5 days from
the taking of the personal property.
 Both requirements posting of
redelivery bond and service of a
copy of the bond within 5 days
from the taking are mandatory
and must be complied with
within 5 days period.
 SC: Casey vs Hugo (77 PHIL
517)
o Suppose the defendant would not post
redelivery bond within a period of 5
days?
 The sheriff has to turn over
the property to the plaintiff
after the 5 day period.
 So gienforce na ang
writ. Pila kadays ihold
sa sheriff? 5 days. In the
usual course of things,
after the taking, ang
usual ana idristo ranag
hatag sa plaintiff. So,
the usual is idrito ranag
hatag sa plaintiff,
iturnover, iadto ranas
plaintiff kay
kabutangan.
 Kung dili maturnover sa sheriff
for whatever reason sa plaintiff,
the same has to be returned to
the defendant.
In what cases that the defendant is entitled to the
return of the property taken under the writ of replevin?
1. When he has posted redelivery bond within a
period of 5 days
2. When the bond posted is insufficient or has not
posted any bond
3. When the property is not delivered to the
plaintiff for whatever reason.
Sec. 7. Proceedings where property claimed by third
person.
What if the property is claimed by a third person?
Nabaligya na sa laing tawo.
- The same proceedings – terceria.
o Remember preliminary attachment? The
same.
 Execute affidavit
 Plaintiff posts a bond
 Third party claimant may file a
separate civil action
 File intervention
Asa man ienforce ang writ?
- Possible man nga sa Cebu gikuha, dili ganahan
marecover so dalhon sa laing lugar.
- Is the writ of replevin still effective outside the
judicial region?
o Yes. The writ of replevin may be served
anywhere in the Philippines.
 Only injunction and TRO ang
within the judicial region.
o Fernandez vs Intl Corporate Bank (Aug
7, 1999)
Just like a writ of preliminary attachment, writ of
replevin may be granted ex parte.
- Pwede naay hearing, but usually ex parte.
o Kung ikay court, nganung magdugay2
paman kag conduct ug hearing nga
pwede man ex parte?
RULE 61
SUPPORT PENDENTE LITE
Main action here could be Support
In order for the court to grant the application, it must be
established that the defendant has the duty to give
support.
- For example, minyo mo sa bana, nagbuwag mo,
naa moy anak nga minors. Unya di muhatag ug
234 | c a v e a t e m p t o r
 support kay tua gihatag sa laing pamilya. Ang
main fam gibiyaan. Remedy?
o File a case for support.
o Unya dinalian man na? Kay kada-adlaw
mukaon.
 Your complaint for support
must be coupled with
application for support pendente
lite.
- If, illegitimate? Nabiktima kag hit and run sa
imong uyab.
o Kihaon nimog reckless imprudence
resulting in homicide? No. HAHAHA
o Support.
 But it must be established that
the defendant is entitled to get
support.
o Nya illegitimate man?
 For example, nipirma sa luyo sa
birth nga giacknowledge ang
bata as iyang anak.
 Entitled to give support.
o Kung pananglitan, wala nipirma?
 Filean nimo ug case for
recognition and support.
 You have to give proof. Naa
namay DNA testing.
This is the only provisional remedy where bond is not
required.
- This is understandable.
o Mao ganing nagfile ka for support kay
wala kay kwarta.
When should the application be filed?
- Usually incorporated in the claim for support.
o If filed with the complaint, the
compalint must be verified
 So if incorporated with the
complaint, the complaint must
be verified.
o It must be accompanied with affidavit
and other authentic documents in
support of the application.
 Birth cert
 Marriage cert
 Or if illegitimate, naay pirma sa
luyo affidavit of paternity.
The court shall require the defendant to give a comment.
(Sec 2)
- Five days to comment.
- After, there shall be a hearing (Sec3)
o Hearing here is only for formality,
o What could be the defenses? Could be
falsified ang birth certificate.
If the court finds the application to be meritorious, the
court has to fix the amount of the support pendente lite.
- This is provisional ha.
What is the basis for the court to fix the amount?
- No basis for the fixing of amount. No fixed
amount of support.
- Amount of support depends upon the capacity of
the giver and the needs of the receiver.
o So if ang papa sa bata dako ug sweldo,
or dakog income, then dako pud ang
amount sa support.
o And depende sad na sa needs sa bata or
mga bata.
Is the spouse also entitled for support?
- Yes.
- Under the Family Code.
TN: The amount of support can be changed from time to
time.
Judgment for support is immediately executory and is
not subject to the 5-year and 10-year period.
- Under R39, 5yrs to file motion, and after that,
revival.
o Judgment for support is not subject to
revival.
- This is an exception to the doctrine of
immutability of judgment.
Sec. 5. Enforcement of order.
The order of the court regarding the giving of support
pendente lite is the only order where the court can
order the issuance of writ of execution motu proprio.
- In other cases, the court cannot issue a writ of
execution motu proprio. There has to be a
motion.
- But here, pwede motu proprio.
235 | c a v e a t e m p t o r
Failure on the part of the defendant to comply with the Amount of support can be increased anytime.
order of the court is a ground for contempt. - It is an exemption of the Doctrine of
Immutability of Judgment.
Pananglitan, ang defendant wala nicomply sa order sa
court. Unya ang lolo or lola ang napugos sa paghatag sa
support.
- The lolo or lola or any other person is entitled to
reimbursement from the defendant.

Sec. 6. Support in criminal cases.

Support pendente lite is also applicable to criminal

cases.

For example, in the crime of rape or seduction, the

victim or offended party is entitled to support pendent
lite.

Sec. 7. Restitution.
Suppose, after hearing, if it is found that the plaintiff is
not entitled to support, the defendant shall be entitled to
the return or restitution of the amount.
- If dili makabayad ang plaintiff, the defendant
may file a separate civil action for the
reimbursement of the support he has given.
o But remote kaayo ni mahitabo.
o The court before issuing an order, iya
nang tan-awon ang documents kung
entitled bas a support, such as the birth
cert, marriage contract, etc.
o It is seldom nga masayop siya.

The judgment in support cases will not be stayed by

appeal.
- This is immediately executory, without
prejudice to further appeal.
o The rule is whenever there is appeal, the
execution of the decision of the court
shall be stayed. Be on hold.
o But in support cases, this is one of the
cases where the decision of the court
will be immediately executory,
without prejudice to further appeal.
- And, it will never become dormant.
o It can be executed upon motion even
after 5 yrs.
o Canonisado vs Benitez (127 SCRA 610)

236 | c a v e a t e m p t o r
December 7, 2020
SPECIAL CIVIL ACTIONS
Under ROC, the special civil actions are:
1. Interpleader (R62)
2. Declaratory Relief (R63)
3. Petition for Certiorari, Prohibition, Mandamus
(R65)
4. Quo Warranto (R66)
5. Expropriation (R67)
6. Foreclousre of REM (R68)
7. Partition (R69)
8. Forcible Entry/ Unlawful Detainer (R70)
9. Contempt (R71)
There are special civil actions that are initiated through a
complaint, and there are also those which are initiated
through a petition.
Special civil actions and Ordinary civil actions are
governed by the rules for ordinary civil actions.
- So rules in the OCA are also applicable in the
SCA
- However, in addition to the rules for OCA, there
are certain rules that are only applicable to
certain SCA.
- Meaning, gawas nga mufollow sa OCA ang
SCA, naa puy own rules ang SCA.
There are SCAs that could be filed in the RTC, and there
are those which could be filed in the MTC.
- Example. Ejecment cases (forcible entry or
unlawful detainer).
o All ejectment cases are cognizable by
the MTC
- Interpleader is also cognizable in MTC,
depending on the amount involved.
- Contempt could also be filed in the MTC/RTC.
RULE 62
Interpleader
Keywords to remember:
- Conflicting claims
There is this news nga somewhere in a dumping site in
Mandaue, naay mga mamasurahay nga nakakita ug
pieces of jewelry. Dili lang to worth 1k or 2k. Ang worth
ato 100k. Unya, daghan ug claimants.
There is also an incident in Cebu City nga naay
nanglimpyo sa ilang balay, unya naapil ug labay ang
jewelry sa ilang lolo or lola. Gisulod ra sa ordinary nga
bulsita. Daghan ug claimants.
What is the remedy of the holder of a property claimed
by many people?
- Interpleader.
o Conflicting claimants or conflicting
claims.
Section 1. When interpleader proper.
Whenever conflicting claims upon the same subject
matter are or may be made against a person who claims
no interest whatever in the subject matter, or an interest
which in whole or in part is not disputed by the
claimants, he may bring an action against the conflicting
claimants to compel them to interplead and litigate their
several claims among themselves.
- ―against a person who claims no interest‖
o So the holder of the property must have
no claim or interest over the property or
properties
Purpose of interpleader:
- To compel the conflicting claimants to litigate
their respective claims.
- To solve and to know who is really the owner
Interpleader, dili rani siya applicable sa mga butang nga
makit-an.
- Another example: X died. Sa iyang pagkamatay,
nagbilin siya ug mga properties. Iyang mga
properties naay mga lessees. Pagkahuman ug
lubong niya, niingon dayon iyang asawa sa mga
lessees nga didto niya iremit ang mga rentals.
Few days thereafter, another woman who also
claims to be the wife of the deceased appears,
unya niingon sa mga lessees nga didto niya
iremit ang mga rentals. Kung ikaw ang lessee
nga nagrent, unsa man imong remedy? Wala
man ka kahibaw kinsay hatagan.
237 | c a v e a t e m p t o r
 o File an action for interpleader to compel
the conflicting claimants to litigate their
claims
 To determine who among them
is really the rightful claimant.
In what court should the action for interpleader be filed?
- It’s either in the RTC or MTC depending on the
value of the property.
Section 2.
Order.
Upon the filing of the complaint, the court shall issue an
order requiring the conflicting claimants to interplead
with one another. If the interests of justice so require, the
court may direct in such order that the subject matter be
paid or delivered to the court.
For example, personal property, pieces of jewelry. Dali
man mawagtang.
- So court may order nga icustody didto sa court.
The defendants may also file a motion to dismiss
questioning the propriety of the filing of the action.
Again, the plaintiff must have no interest in the property.
- If he is also claiming ownership, or if he also has
any interest over the property, interpleader is not
a remedy.
Difference between interpleader and intervention?
- IV is an ancillary action. It is not the main
action.
o IP is an original action.
- In IV, the movant has an interest in the subject
matter. Precisely why he wants to intervene.
o In IP, the plaintiff has no interest in the
subject matter of the case.
- In IV, the defendants are already parties to the
case.
o In IP, the defendants are being sued in
order to implead them.
Section 5. Answer and other pleadings.
The claimants are required to file their answer within 15
days from service of summons.
- Under the present amendment of the Rules of
CivPro, the period to file answer is already 30
days.
o Judge D is not certain if Interpleader is
covered.
o But in Sec 5, it is 15 days.
If any of the claimant fials to file answer, he will be
declared in default and will be barred from presenting
evidence as regards his claim.
Section 6. Determination.
After the pleadings of the conflicting claimants have
been filed, and pre-trial has been conducted in
accordance with the Rules, the court shall proceed to
determine their respective rights and adjudicate their
several claims.
Section 7. Docket and other lawful fees, costs and
litigation expenses as liens.
Who will spend for the expenses incurred in the filing
and during the proceedings?
- It would be the plaintiff but subject to refund.
RULE 63
Declaratory Relief and Similar Remedies
The purpose of declaratory relief is to seek a judicial
interpretation of an instrument or a deed, or for a
judicial declaration of a person’s rights under a statute,
and not to ask for affirmative reliefs like damages or
injunction or any other relief beyond the purpose of
petition under the rules.
DR is a weird kind of case. Lahi.
- As discussed, under Rule 2, every complaint
must be based on a cause of action. Elements of
COA?
o There must be a right on the part of the
plaintiff
o Oblgation of defendant to respect such
right
o There is an act or omission on the part
of defendant which violated plaintiff’s
right.
238 | c a v e a t e m p t o r
 - In DR, there is no cause of action. There is no
act or omission committed or incurred by the
defendant.
o The parties may have a contract and the
purpose of the plaintiff is for the court to
interpret or declare what are his rights
under the written contract because
contract is vague.
o Declaratory relief is only proper when
there is no violation, no breach yet of
their contract.
 If there is already a breach of
any of the parties, declaratory
relief is not applicable.
Remember, keyword:
- Judicial declaration.
Aside from a contract, another subject of a declaratory
relief that the petitioner or plaintiff may want to court to
declare is a law, statute, or ordinance.
- Plaintiff wants to declare an ordinance, law or
statute as void.
Purpose:
- Seek a judicial interpretation of a written
instrument or for the declaration of a person’s
rights under the statute, and not to ask for
affirmative relief such as damages, injunction,
etc.
- It is not filed to settle issues arising from a
breach or violation because there is no violation.
o If there is already a breach of the
contract, the petition could no longer be
filed or brought.
This is the only case where there is no execution because
the court merely gives its interpretation or declaration.
Section 1. Who may file petition.
Any person interested under a deed, will, contract or
other written instrument, or whose rights are affected by
a statute, executive order or regulation, ordinance, or any
other governmental regulation may, before breach or
violation thereof bring an action in the appropriate
Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of
his rights or duties, thereunder.
―A person interested‖
- TN.
- Di na pwede person concerned citizens.
TN of the subject of the declaratory relief. Enumeration
is exclusive.
For example, naay city ordinance i-enact ang city. Unya
you believe that the ordinance is invalid, what case will
you file?
- Declaratory Relief
Declaratory relief is not only applicable for the
declaration nullity of a city ordinance. It is also
applicable to question a law passed by the Congress, or
to question the executive order issued by the Pres, or
memorandum issued by any agency of the government.
- For example, LGU will issue a memorandum
that may affect motorists, car owners or vehicle
owners, it could be questioned through
declaratory relief.
- So, to question executive order, ordnance, or any
governmental regulation, the proper action is
declaratory relief.
Naay laing way sa pagquestion sa validity of law other
than declaratory relief. How?
- Peititon for Certiorari and/or prohibition.
- SC: Petition for certiorari and/or prohibition can
also be availed of to question the
constitutionality of a law or statute, and the same
may be filed directly with the SC.
Remember CA, SC and RTC has concurrent jd as far as
petition for certiorari, prohibition and mandamus are
concerned. Depende kung kinsa ang gikiha.
- So again, petitions for CPM can also be availed
of to question the constitutionality of a law or
statute, and the same may be directly filed with
the SC.
- See: Pimentel vs COMELEC (Nov 3, 2008)
o Aside for declaratory relief, petition for
Certiorari and/or prohibition could also
be availed to question the validity or
constitutionality of the law
239 | c a v e a t e m p t o r
But if what is filed is a petition for declaratory relief, it
should be filed in the RTC.
2nd paragraph:
- Lahi ni siya nga case.
- An action for the reformation of an instrument,
to quiet title to real property or remove clouds
therefrom, or to consolidate ownership under
Article 1607 of the Civil Code, may be brought
under this Rule
- The cases in the 2nd paragraph are more of
Ordinary Civil Actions.
- Ang lahi kaayo here kay declaratory relief.
o Ang declaratory relief walay cause of
action.
In one case, the husband (Filipino) whose wife (also
Filipino) went to the USA and became a naturalized
American citizen, thereafter applied for divorce. Wife
obtained a divorce decree. Unya under Art 26 of FC, ang
iyang codal provision nipresuppose nga such article is
applicable only to mixed marriage. So the husband filed
a petition for declaratory relief to ask the court what
really are his rights under Art 26 or W/N Art 26 woud
apply
- Remember Republic vs Orbecido III (Oct 5,
2005)
Requisites of a Declaratory Relief:
1. The subject matter of the controversy must be a
deed, will, contract, or any other written
instrument, or statute, executive order or
regulation, ordinance
2. The terms of said documents and the validity
thereof are doubtful and requires judicial
construction
3. There must have been no breach of the
documents in question.
o If there is already a violation or breach,
declaratory relief would not apply. It
would be an ordinary civil action, such
as specific performance, injunction, etc.
4. There must be an actual, justiciable controversy
5. The issue must be ripe for judicial
determinatation
6. Adequate relief is not available through other
means or other forms of action or proceeding
See: Republic vs Roque (Sept 24, 2013) as to requisites
The petitioner must have interest in the document or in
that law.
- There is a case where the plaintiff seeks for
declaratory relief by asserting the
unconstitutionality of a law, not for his own
personal belief or because his right of
prerogative as an accountant or as an individual
is adversely affected, but rather for the benefit of
persons belonging to other professions or
callings who are not parties to the case.
Concerned citizen ra siya. Di siya maapektohan
sa balaod.
o But he filed declaratory relief
questioning the validity of the law.
- SC: Plaintiff has no actual justiciable
controversy against the defendants, and the
petition shall be dismissed.
o The petitioner or the plaintiff must have
interest in the subject of declaratory
relief.
o Dili pwede nga concerned citizen lang.
Who are the parties?
- All persons who have, or claim interest which
would be affected by the declaration shall be
made plaintiffs, and no declaration shall
prejudice the rights of persons not parties to the
action.
Section 3. Notice on Solicitor General.
If ever the petition for declaratory relief involves the
validity of a law, executive order or regulation, or any
governmental regulation, the office of the Solicitor
General shall be notified by the party or plaintiff
assailing the validity of the law.
Ang office of the solicitor general is the lawyer of the
government.
- If naay case nga ?? sa balaod, ang OSG maoy
muappear for the government
- OSG is part of the DOJ but is different sa
Prosec’s Office.
Section 4. Local government ordinances.
Whenever the subject of the petition for relief is an
ordinance, then the City atty or the provincial atty must
also be notified.
240 | c a v e a t e m p t o r
Section 5. Court action discretionary.
As discussed, ang declaratory relief, weirdo ni.
- Under Sec 5, the court has discretion not to
entertain the case.
- The court may refuse to exercise the power to
declare rights and to construe instruments in any
case where a decision would not terminate the
uncertainty or controversy which gave rise to the
action,
o Or in any case where the declaration or
construction is not necessary and proper
under the circumstances
- Pwede siya mubalibad.
o But in other cases, the court cannot
refuse to exercise its power.
Section 6. Conversion into ordinary action.
Considering that in a declaratory relief, there must be no
violation yet involving the ordinance or the contract,
whenever there is already a violation, the action which is
already filed may be converted into an ordinary action.
Again, in declaratory relief, the court is asked to declare,
to make a declaration or interpretation if it is a document
or contract, to determine or declare what are the rights of
the parties.
- If it is a law, order, or regulation, to make a
declaration whether the same is valid or not, or
the rights of the parties.
RULE 64
Review of Judgments and Final Orders or
Resolutions of the Commission on Elections and the
Commission on Audit
R64 is a petition for certiorari, but the rules for Petition
for Certiorari under R65 are modified.
Section 1. Scope. — This Rule shall govern the review
of judgments and final orders or resolutions of the
Commission on Elections and the Commission on Audit.
This rule is applicable only to decisions or final orders
rendered by the COMELEC and the COA.
- Only applicable to such constitutional bodies.
The decisions of the COA and COMELEC are final and
not appealable.
- There is no appeal.
- The only mode of review is R64.
- A judgment or final order or resolution of the
COMELEC and COA may be brought by the
aggrieved party to the SC on Petition for
Certiorari under R64
Do not be confused because CSC is also a constitutional
body. But ang decisions sa CSC naay appeal (under
R43)
- Where to appeal? CA
- Only the decision of the COA and COMELEC
ang walay appeal.
o And it could only be reviewed through a
petition for certiorari
Section 3. Time to file petition.
Within what time that a petition for certiorari against the
decision rendered by the COA and COMELEC be filed?
- Under Sec3, it shall be filed within 30 days from
notice of the judgment or final order.
Kung pulitiko ka, for example, unya naay nifile against
nimo ug disqualification, unya gigrant ang
disqualification sa COMELEC, your remedy would be a
Petition for Certiorari in the SC.
The filing of MR or MNT shall interrupt the period of 30
days.
- The aggrieved party has the remaining period
after the receipt of denial of his MR or MNT.
- The doctrine in Neypes vs CA does not apply
here.
o Patis vs COMELEC (June 30, 2009)
So this is one of the differences in R65 and R64.
- In R64, 30 days ra.
- In R65, 60 days from the reset of the judgment
or final order, or whenever MR is filed, the party
only has the remaining period.
Section 4. Docket and other lawful fees.
Section 5. Form and contents of petition.
R64 is basically R65.
241 | c a v e a t e m p t o r
 - COMELEC and COA should be impleaded as a
respondent, as well as the private respondent
(the person or persons interested in sustaining
the judgment, final order or resolution of the
Commission.)
The petition shall also contain the so-called Material
Date Rule
- This refers to the date when the aggrieved party
has received a copy of the decision, the date
when he received a copy of the order of the
Commission denying his MR or MNT if he has
filed any.
The petition should also contain certificate against forum
shopping, as well as verification.
Failure to comply with the requirements, such as the
allegation as to the specific material date, are grounds
for the dismissal of the petition.
Section 6. Order to comment.
If the Supreme Court finds the petition sufficient in form
and substance, it shall order the respondents to file their
comments on the petition within ten (10) days from
notice thereof; otherwise, the Court may dismiss the
petition outright. The Court may also dismiss the
petition if it was filed manifestly for delay or the
questions raised are too unsubstantial to warrant further
proceedings.
Upon receipt of the pettion, if SC finds the petition to be
sufficient in form and substance, the SC shall order the
respondent s to file their comments within 10 days from
notice.
- SC rajud ang naay jd ani. Kay ang respondent
COA and COMELEC man.
TN: In petition for certiorari, prohibition and mandamus,
walay summons.
- Since no summons, how can the court acquire jd
over the person of the respondent? (Ang tawag
sa gikiha ani is respondent, ang nikiha
petitioner)
o If SC finds the petition to be sufficient
in form and substance, the Court shall
issue an order requiring the respondent
to comment on the petition within 10
days.
 The order issued requiring the
respondent to comment, mao ni
magsilbe nga summons.
o Once the order is served upon the
respondent, the court can now acquire jd
over the respondent.
Section 7. Comments of respondents.
Section 8. Effect of filing.
In a petition for certiorari, prohibition or mandamus, the
proceedings of the main case would not be stopped. It
would not be stayed, would not be affected.
- The petition for certiorari, prohibition and
mandamus are separate and independent actions.
- Unless, the petitioner has prayed for the issuance
of a TRO and/or writ of preliminary injunction,
and the court has granted the same.
o Remember the provisional remedies of
TRO? Kadtong writ of preliminary
injunction?
o Usually, ang petition for CPM is
accompanied by a prayer for the
issuance of TRO and writ of preliminary
injunction.
- But: Mere fact that there is a prayer would not
stop the proceedings of the main case.
o There should be an order granting the
issuance of a TRO or writ of preliminary
injunction.
Under Sec 8, the filing of a petition for certiorari shall
not stay the execution of the judgment or final order or
resolution sought to be reviewed, unless the Supreme
Court shall direct otherwise upon such terms as it may
deem just.
- IOW, unless the SC would issue a TRO or writ
of preliminary injunction.
Section 9. Submission for decision.
After the submission of the comments of the respondent,
the petition shall now be submitted for decision.
242 | c a v e a t e m p t o r
 RULE 65
Certiorari, Prohibition and Mandamus
In R65, there are 3 special civil actions – Certiorari,
Prohibition and Mandamus.
- Puros ni mga sardinas. Nganu man?
o Pwede rani gamiton kung wala najuy
lain.
Purpose of
- petition for certiorari: to correct
- petition for prohibition: to prohibit
- petition for mandamus: to compel
Section 1. Petition for CERTIORARI.
When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess its
or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is
no appeal, or any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.
Remember in petition for certiorari:
- (1) Lack of jd
- (2) Grave abuse of discretion
- (3) In excess of jd
Actually, grave abuse of discretion or in excess of jd,
parehos rani sa lack of jd.
- Kay when a court would act with grave abuse of
jd, it will be ousted of its jd.
―Without jd‖
- It means that the court or tribunal has absolutely
no authority to entertain the case.
- For example, a case which is cognizable by RTC
is filed in the MTC, when in fact the exclusive jd
is within RTC. So without jd.
―Excess of jd‖
- It could be that the tribunal or court has jd but it
oversteps or transcends its power or acts in
excess without any authority
―Grave abuse of discretion‖
- Presupposes that the court or tribunal has jd, but
only it uses its power in a capricious and
whimsical manner, which is equivalent to lack
or in excess of jd.
- So, ma-ousted sad siya.
- Again, grave abuse of discretion is that the court
or tribunal has jurisdiction over the matter or
over the case, but it exercises or uses its power
in a despotic or arbitrary manner.
o Liberal Party vs COMELEC (620 SCRA
393)
What is the difference between error of jd and error of
judgment?
- Error of jd is where the court does not have any
jd or has acted with grave abuse of jd or in
excess of jd. That is why remedy is petition for
certiorari.
o Whereas, in error of judgment, the court
or tribunal has jd, but it committed
errors or mistakes in the procedure or in
the appreciation of the facts or
application of the law.
o Error of judgment refers to the error
committed by the court or tribunal in the
exercise of its jd.
- In error of jd, the decision of the court or
tribunal is void because it does not have any jd,
or it acted with grave abuse or in excess of its jd.
o In error of judgment, the decision of the
court is not void.
- In error of jd, the decision of the court could be
corrected by petition for certiorari, which is a
special civil action.
o Error of judgment, the decision of the
court could be corrected by appeal, and
not by a petition for certiorari.
Remember: Petition for certiorari is not a substitute for
lost opportunity to file appeal.
- Appeal and Petition for Certiorari are mutually
exclusive.
- When appeal is available, petition for certiorari
is not available.
o Petition for certiorari is only available
when appeal is available, or other
remedies are available.
243 | c a v e a t e m p t o r
 o When appeal is available to the
aggrieved party, the special civil action
of certiorari will not be entertained.
o SC: Remedies of appeal and certiorari
are mutually exclusive, not alternative
or successive.
o SC: The proper remedy to obtain a
reversal of judgment on the merits, final
order or resolution is appeal. This is true
even if the error ascribed to the court
rendering the judgment is its lack of jd
over the subject matter or the exercise of
power in excess thereof, or grave abuse
of discretion in the findings of fact or of
law set out in the decision, order or
resolution.
o Sa ato pa, ang appeal is the remedy of a
decision rendered by the court after
reception of the evidence of the parties,
even if one of the assigned errors of the
aggrieved party is lack of jd.
o Ang appeal, pwede na makaentertain sa
lack of jd or in excess of jd, or grave
abuse of discretion.
- When appeal is the proper remedy, then petition
for certiorari is not available.
- PP vs Chua (Nov 22, 2017)
Pananglitan. Rape case. Paghuman sa hearing, accused
was convicted by the court. Matod pas trial court, it finds
the testimony of the private complainant more credible
than that of the accused. May the accused file a petition
for certiorari over the decision on the ground that the
court committed grave abuse of discretion in believing
the testimony of the private complainant? Pwede ba ang
petition for certiorari kay the court committed grave
abuse of discretion in believing, even if to the mind of
the accused, the testimony of the private complainant is
unbelievable? Pwede petition for certiorari and not
appeal?
- No. It should be appeal.
- Kung na ana gani trial, hearing, and presentation
of evidence, it should be appeal.
Pananglitan, naay civil case. Beyond pecuniary
estimation ang iyang subject. Cases which are incapable
of pecuniary estimation should be filed in the RTC. If
filed in the MTC, gifilean ug motion to dismiss on the
ground of jd. Allowed pa ba ang lack of jd under the
new rules as ground for Motion to dismiss? Yes allowed.
If the motion to dismiss is allowed, can the defendant
file a petition for certiorari?
- Yes.
- Because appeal is not a remedy.
- Provided, there is grave abuse of discretion.
- Another remedy: Pwede rapud nga he would go
to trial, present evidence, and thereafter file an
appeal, nya assign the denial of his motion to
dismiss as one of the errors.
Look at Par. 2. Daghan ang cases nga nadismiss tungod
ani.
- The petition shall be accompanied by a certified
true copy of the judgment, order or resolution
subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a
sworn certification of non-forum shopping as
provided in the third paragraph of section 3,
Rule 46.
- This is very important.
o Mas maayo pa mapildi sa appeal kaysa
technicality.
Section 2. Petition for PROHIBITION.
When the proceedings of any tribunal, corporation,
board, officer or person, whether exercising judicial,
quasi-judicial or ministerial functions, are without or in
excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction,
and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the
respondent to desist from further proceedings in the
action or matter specified therein, or otherwise granting
such incidental reliefs as law and justice may require.
The petition shall likewise be accompanied by a certified
true copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents relevant
and pertinent thereto, and a sworn certification of non-
forum shopping as provided in the third paragraph of
section 3, Rule 46.
Kaning prohibition ug certiorari, pare-pareho rani.
244 | c a v e a t e m p t o r
 - There is no appeal or any other plain, speedy
and adequate remedy in the ordinary course of
law.
- The aggrieved party may file a verified petition
for prohibition alleging he facts with certainty
and praying that judgment be rendered
commanding the respondent to desist, prohibit,
prevent from further proceedings in the action or
matter specified therein, or otherwise granting
such incidental reliefs as law and justice may
require.
Naghisgot man ta ug action beyond pecuniary
estimation, which is filed in the MTC, the motion filed a
motion to dismiss but it was denied, remedy could be
petition for certiorari.
- Pwede pud petition for prohibition
- Pwede pud icombine sila. Petition for Certiorari
and Prohibition.
o Pare-pareho man ni sila.
- Pero pwede rapud Petition for Certiorari, and in
the petition, it must be accompanied by a prayer
for the issuance of a TRO and writ of
preliminary injuction.
Section 3. Petition for MANDAMUS.
When any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another
from the use and enjoyment of a right or office to which
such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the
respondent, immediately or at some other time to be
specified by the court, to do the act required to be done
to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
The petition shall also contain a sworn certification of
non-forum shopping as provided in the third paragraph
of section 3, Rule 46.
Purpose:
- Compel the respondent to perform an act which
is merely ministerial on his part to perform.
Petition for Mandamus is applicable only if the
respondent is required to perform an action which is
merely ministerial.
- ―Merely Ministerial‖
o Kana bang wala siyay option, wala siyay
discretion.
Remember amendment before the defendant files an
answer? It is a matter of right on the part of the plaintiff.
- The court has no discretion to deny or grant.
- Suppose the plaintiff filed an amended
complaint before the defendant filed an answer
but the amended complaint was denied by the
court. Remedy of the plaintiff to compel the
court to accept the amended complaint,
considering that it is still a matter of right on the
part of the plaintiff?
o Remedy is mandamus.
o It is a ministerial duty of the court to
accept the amended complaint.
Another example. Motion for execution after the
decision has become final and executory because there
was no appeal, no MR, no MNT. Once the decision
becomes final and executory, and the plaintiff files a
motion for execution, it becomes ministerial on the part
of the court to issue the writ of execution.
- Suppose, the motion for the issuance of the writ
of execution is denied, what is the remedy of the
winning party?
o Mandamus is not applicable when there
is discretion. It is not applicable when
the respondent has the right to decide as
to how he will perform his duty.
o If walay discretion, then mandamus is
available.
So in Sec 3: When any tribunal, corporation, board,
officer or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right
or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a
verified petition for mandamus, praying to the court than
an order be issued to require the respondent to perform
the act required to be done.
245 | c a v e a t e m p t o r

Case of a student. Nienroll siya ug Architecture.
Nagkahagbong-hagbong man, so nishift siya ug different
course (commerce). Pagshift na niya, iyang grades
pwerte mang dagkoa. So much so nga bisan pa ug apilon
iyang gagmayng grado sa archi pa siya, mugraduate
gihapon siyag cum laude. Problem is, naa siyay mga
failure. Pero iyang average, pangcum laude jud. Latin
honors. Gidisqualify siya sa school. So he filed a petition
for mandamus to compel the school to let him graduate
with Latin honors. Is the petition for mandamus proper?
- When is a petition for mandamus available?
When the respondent is merely exercising a
ministerial act.
- Is it ministerial on the part of the school
pagpagraduate niyag honors kung naay
hagbong?
- See case: USC vs CA (GR 79237; October 18,
1988)
o (lzl res) It is an accepted principle that
schools of teaming are given ample
discretion to formulate rules and
guidelines in the granting of honors
for purposes of graduation. This is part
of academic freedom. Within the
parameters of these rules, it is within the
competence of universities and colleges
to determine who are entitled to the
grant of honors among the graduating
students. Its discretion on this academic
matter may not be disturbed much less
controlled by the courts unless there is
grave abuse of discretion in its exercise.
o In this case, the petitioner's bulletin of
information provides all students and all
other interested parties advisezz on the
University policies and rules on
enrollment and academic achievements.
Therein it is provided, among others,
that a student may not officially
withdraw from subjects in the
curriculum if he does not have the
written permission of his parents or
guardian. For an incomplete grade, there
must be an application for completion or
removal within the period announced by
the school calendar and when not
removed within one (1) year, it
automatically becomes final. A "DR"
(Dropped) subject which is in the same
category, as a "5" disqualifies a student
from receiving honors. A candidate for
honors should have earned no less than
18 units per semester but a working
student should earn no less that 12 units.
A failure in any subject disqualifies a
student from honors. Good moral
character and exemplary conduct are as
important criteria for honors as
academic achievements.
o Nevertheless, even if she succeeded in
removing her failing grades, it was still
within the sound discretion of the
petitioners to determine whether private
respondent was entitled to graduate with
honors. The Court finds that petitioners
did not commit a grave abuse of
discretion in denying the honors sought
by private respondent under the
circumstances. Indeed, the aforesaid
change of grades did not automatically
entitle her to the award of honors.
o Private respondent not having
demonstrated that she has a clear legal
right to the honors sought, her claim for
damages must necessarily fail.
When the respondent has the discretion, mandamus is
not available.
- But, the writ of mandamus may be issued to
compel the respondent to exercise his discretion.
o Di siya pwede tudloan unsaon pagdecide
or unsaon pag exercise ang discretion,
but pwede siya mapugos or maorderan
to exercise his discretion.
- For example. City Prosecutor’s Office, naay
discretion whether to file the case or not. Dili
siya pwede nga sugoon nga ipafile. Pero if
nagdugay2 siya sa pagrule, pagresolve sa case,
pwede siya maorderan nga iresolve na ang case.
To exercise his discretion.
o Sharp International Marketing vs CA
(Sept 4, 1991)
o SC: Mandamus is not available to
control discretion. The writ, however,
may issue to compel the exercise of
discretion but not the discretion itself.
Mandamus can require action only but
246 | c a v e a t e m p t o r
 not specific action where the act sought
to be performed involves the exercise of
discretion.
TN: Distinction of Petition for Certiorari and Petition for
Review on Certiorari.
Section 4. When and where petition filed.
For any of those special civil actions (certiorari,
prohibition and mandamus), petition shall be filed not
later than sixty (60) days from notice of the judgment,
order or resolution.
- In case a motion for reconsideration or new trial
is timely filed, whether such motion is required
or not, the petition shall be filed not later than
sixty (60) day counted from notice of the denial
of said motion.
o Lahi sa R64.
 Under 64, filing of MR or MNT
would merely interrupt the 30
days period
o Here, the filing of the MR or MNT will
not only interrupt, but would give
aggrieved party (petitioner) a fresh
period.
 ―the petition shall be filed not
later than sixty (60) day period
shall be counted from notice of
the denial of the motion‖
o So parehos siya sa Neypes Doctrine.
Where to file?
- If the order/decision is rendered in the MTC, the
petition shall be filed in the RTC.
- If the decision or final order is rendered by the
RTC, the petition shall be filed in the CA or
Sandiganbayan.
- If the petition involves an act or omission of a
quasi judicial agency, the petition shall be filed
only in CA.
In the question as to where the Petition for Certiorari
should be filed:
- It should be filed in the higher court.
o Which court? In the court where the
decision of a case will be appealed.
- For example, in election cases involving brgy
officials filed in the MTC. The decision of the
MTC shall be appealed in the COMELEC.
o Ang petition for certiorari, adto sad ifile
sa COMELEC. Kay didto man iappeal.
In the peititon for CPM, there are 3 important dates to
remember:
- These are the material dates.
- There are three material dates that must be stated
in a petition for certiorari brought under Rule 65.
o First, the date when notice of the
judgment or final order or resolution
was received;
o second, the date when a motion for new
trial or for reconsideration was filed;
and
o third, the date when notice of the denial
thereof was received
- As explicitly stated in the aforementioned Rule,
failure to comply with any of the requirements
shall be sufficient ground for the dismissal of the
petition.
- Malixi vs Baltazar (G.R. No. 208224; Nov 22,
2017)
Section 5. Respondents and costs in certain cases.
The public officer or the judge who issued the order or
judgment subject of the petition shall be made as a
respondent.
- The person interested in the order or decision
shall be joined as private respondent.
- For example. Civil case beyond pecuniary
estimation. Gifile didto sa MTC. For example,
ang nagfile ato sa P, iyang gikiha si D. Nifile si
D ug Motion to Dismiss for lack of jd. Denied
by the court. D filed a petition for certiorari.
o In the petition, iyang iimplead as public
respondent ang judge.
o Aside from the judge, the plaintiff shall
also be joined as a private respondent.
- Even if the judge is joined as a public
respondent, he should not appear in the case.
o He is only a nominal party.
o So who will defend the decision or order
of the court?
 It would be the private
respondent. Ang private
247 | c a v e a t e m p t o r
 respondent ang mudefend sa
decision or order of the court.
 Unless, the higher court,
where the petition is
filed, would direct the
public respondent to file
his comment.
o There is this case where a petition for
certiorari is filed against the Judge.
Nisubmit siya ug comment, unya iyang
gidepensahan iyang order. Disciplined
by the SC for ignorance of the law.
 It is the duty of the private
respondent to defend the
decision or order that is being
questioned.
 The public respondent is merely
a nominal party.
Suppose, the defendant is not joined as a private
respondent. Would it cause the dismissal of the case?
- According to SC citing Sec11R3:
o SC: Misjoinder or non-joinder of a party
is not a ground for dismissal. Whether
indispensable, necessary…
o What should adverse party do?
 File a motion to implead.
 Or the court may order the
petitioner to amend the petition
o Non-inclusion as private respondent of
the party interested in sustaining the
proceedings in the lower court is not a
ground for the dismissal of the case.
 PP vs Cuyo
Section 6. Order to comment.
When the court finds the petition to be sufficient in form
and in substance, the court will issue an order requiring
the respondent to comment.
- Unsa toy gamit sa order requiring the respondent
to issue or submit a comment?
o Aside from complying with the
requirements of due process because the
respondents are required to file a
comment, it is also a mode of acquiring
jd over the person of the respondent.
In a petition for certiorari, filing MR is a condition sine
qua non.
- It is mandatory.
- That is one distinction b/w PRC and PC
o In a PC, filing for an MR is mandatory,
otherwise will be dismissed.
 Why is MR mandatory?
 Remember, petition for
certiorari can only be availed of
if there is no other remedy.
 If wala pa nakafile ug
MR, naa pa siyay
remedy, which is to file
MR.
 Another reason to requiring
filing MR before PC is to give
opportunity to the court or to the
tribunal to take a 2nd look at the
order or judgment.
However, there are instances when MR is not required or
may be excused before filing a motion for CPM.
- (1) where the order is a patent nullity
o Such as, where the lower court has no
jd.
- (2) where the MR would be useless
- (3) when the petitioner was deprived of due
process, and there is extreme urgency for relief.
- See: Morales vs CA and Binay (Nov 10, 2015)
What are the other distinctions between petition for
certiorari and petition for review on certiorari?
- One of the differences is as to the filing of MR.
o In PRC, MR is not required.
 In PC, filing a MR is a
condition precedent
o In PRC, the judge or the lower court, or
agency that she rendered at the same
time, the decision or order is not to be
impleaded.
 While in PC, the judge, lower
court or agency shall be
impleaded in the petition.
o PRC should be filed within 15 days
from receipt of the decision or order.
 PC has to be filed within 60
days for receipt of the judgment
or order, or the order denying
the MR or MNT.
248 | c a v e a t e m p t o r
 o PRC, petition is based on pure question
of law.
 PC, the petition is based on lack
of jurisdiction, in excess or
grave abuse of discretion.
As discussed, a petition for certiorari is not a substitute
for lost opportunity to file appeal.
- But there are decisions of the SC where the PC
is treated as PRC.
o The SC treated the PC as a PRC under
R45 in the interest of substantial justice.
If the conditions are present:
 (1) if the PC was filed within
the reglementary period for the
filing of PRC
 Even if PC ang gifile,
pero filed man within
15 days, gitreat ra siya
as PRC
 (2) when there is sufficient
reason to justify the relaxation
of the rules.
o See: Pp vs Sanchez (Nov 19, 2014
 (lzl res) Preliminarily, the Court
notes that this petition suffers
from procedural infirmity.
Under Section 1, Rule 45 of the
Rules of Court, the proper
remedy to question the CA
judgment, final order or
resolution, as in the present
case, is a petition for review on
certiorari, which would be but a
continuation of the appellate
process over the original case.
By filing a special civil action
for certiorari under Rule 65,
Sanchez therefore clearly
availed himself of the wrong
remedy.
 Be that as it may, the Court, in
several cases before, had treated
a petition for certiorari as a
petition for review under Rule
45, in accordance with the
liberal spirit and in the interest
of substantial justice,
particularly (1) if the petition
was filed within the
reglementary period for filing a
petition for review; (2) errors of
judgment are averred; and (3)
there is sufficient reason to
justify the relaxation of the
rules. The case at bench satisfies
all the above requisites and,
hence, there is ample
justification to treat this petition
for certiorari as a petition for
review. Besides, it is axiomatic
that the nature of an action is
determined by the allegations of
the complaint or petition and the
character of the relief sought.
Here, stripped of allegations of
"grave abuse of discretion," the
petition actually avers errors of
judgment rather than of
jurisdiction, which are the
appropriate subjects of a
petition for review on certiorari.
o Also, in the case of PP vs Bongalon
(March 20, 2013)
 As to child abuse
Section 7. Expediting proceedings; injunctive relief.
As discussed, petition for certiorari is a separate and
independent action.
- And because it is a separate and independent
action, it will not stop the proceedings of the
main case, unless the higher court has issued a
restraining order.
o Mao na nga ang kanang petition for
certiorari and prohibition, usually it is
coupled with application for the
issuance of TRO and writ of preliminary
injunction.
o But TN: Mere prayer would not be
sufficient. The prayer must be granted
by the higher court so that the
proceedings in the lower court should be
stuck, or should be interrupted.
- If the public respondent (or the judge) fails to
proceed with the hearing of the case within 10
days from the filing of the petition, if there is no
249 | c a v e a t e m p t o r
 TRO or writ of injunction issued, he can be
subjected to disciplinary action (2nd par)
Section 8. Proceedings after comment is filed.
After the comment or other pleadings required by the
court are filed, or the time for the filing thereof has
expired, the court may hear the case or require the
parties to submit memoranda. If after such hearing or
submission of memoranda or the expiration of the period
for the filing thereof the court finds that the allegations
of the petition are true, it shall render judgment for the
relief prayed for or to which the petitioner is entitled.
After the comment is filed, the court may hear the case
or require the parties to submit memoranda.
- Who files comment?
o Between the public respondent and
private respondent, it is only the private
respondent.
o The public respondent should not appeal
or file any comment unless ordered by
the court where the petition is pending.
- Here, walay hearingonon. No presentation of
evidence. Mao na nga pasubmiton ra sila sa
ilang memoranda and arguments.
TN: Delikado ni ang mufile ug Petition for certiorari.
There are risks. See last par:
- The court, however, may dismiss the petition if
it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to
require consideration.
o And in addition, the petitioner as well as
the counsel may be subject to
disciplinary action
o Ang gamiton nga proof ang kadto ra
mismong baseless petition for certiorari.
Based on the Doctrine of Res ipsa
loquitur, the court may impose motu
proprio disciplinary action on the
lawyer, as well as the petitioner.
TN: Kanang certiorari ug prohibition, cousins na sila.
Parehos na silag hitsura.
RULE 66
Quo Warranto
Quo warranto literally means ―by what authority‖
Section 1. Action by Government against individuals.
What is quo warranto?
- This is an action for the usurpation of a public
office, position or franchise which may be
commenced by a verified petition brought in the
name of the Republic of the Philippines against:
o (a) A person who usurps, intrudes into,
or unlawfully holds or exercises a public
office, position or franchise;
o (b) A public officer who does or suffers
an act which, by the provision of law,
constitutes a ground for the forfeiture of
his office; or
o (c) An association which acts as a
corporation within the Philippines
without being legally incorporated or
without lawful authority so to act
What is the remedy of a school principal nga gidritso ra
siyag papahawa, unya giilisan siya.
Or what is the remedy of a City prosecutor nga gitransfer
ug laing lugar (didto sa Mindanao) unya giilisan siya sa
iyang position?
- Remedy is to file Petition is quo warranto
o And the respondent shall be the person
who usurps or unlawfully holds such
public office.
Petition for quo warranto could also be filed against a
group of persons who pretended themselves to be a
corporation when in fact they are not, or who pretended
themselves to be duly registered as a corporation when
in fact they are not. (under Sec1c)
Sec 1(a) and 1(b) pertains to a public office.
- That is why the state is interested in the petition.
In Sec1(c), the state is also interested because it relates
to a group of persons who pretend to be duly registered
as a corp when in fact they are not.
250 | c a v e a t e m p t o r
Section 2. When Solicitor General or public prosecutor
must commence action.
Who can file a petition for QW?
- Remember, ang kihante ani, ang government.
o Kinsa gani ang abogado sa govt? It is
the Solicitor General.
So under Sec 2, the SolGen or a public prosecutor, when
directed by the President of the Philippines, or when
upon complaint or otherwise he has good reason to
believe that any case specified in section 1 can be
established by proof, must commence such action.
- It is only the SolGen or the public prosecutor
who can file a case
- EXC:
o There are instances where private
individuals may also file a petition for
QW
Kaning quo warranto, tagsa rata makasugat ani. This is
not like criminal case nga murag taga oras naa.
- Petition for QW is very seldom.
- One of such cases of QW filed by the OSG
against the former CJ Sereno which is the case
of Republic vs Sereno (May 11, 2018)
QW is available in favor of a public officer illegally
removed and replaced.
- There was a case wherein a provincial
prosecutor of Negros Oriental was suddenly
transferred or illegally transferred to Tarlac. He
filed a petition for QW.
- See: :Lacson vs Romero (84 PHIL740)
Sec 2 – Compulsory QW
Sec 3 – Discretionary QW
A discretionary QW has 2 steps
- First step: File a petition asking for permission
from the court to file a petition for QW (S3)
- Second step: to file a petition for QW if the
petition asking for permission to file QW is
granted by the court (S4)
Section 5.
When an individual may commence such an action.
As discussed, QW is usually filed by the SolGen.
- But there are instances when QW may be filed
by a private individual (Sec 5)
o When a private individual is claiming to
be entitled to a public office.
o For example, kadtong case sa provincial
prosecutor nga gikalit lag labay sa
Tarlac. The prosecutor, even without the
participation of the SolGen, may file the
petition for qw because he is claiming
right over the possession.
A person claiming to be entitled to a public office or
position usurped or unlawfully held or exercised by
another may bring an action therefor in his own name.
- But, TN: It is required that he must be claiming
to be entitled. If not, he has no right or legal
personality to file the petititon for qw.
The petitioner should implead all those persons who are
claiming or who are usurping or claiming to be entitled
to said office.
Section 7. Venue
Where should a petition for qw be filed?
- Ang sa kang CJ, asa gi-file? Sa SC.
- So the SC, CA and RTC have concurrent jd.
o But TN: Doctrine of Hierarchy of
Courts.
- An action for qw can be brought only in the
Supreme Court, the Court of Appeals, or in the
Regional Trial Court exercising jurisdiction over
the territorial area where the respondent or any
of the respondents resides
o So the venue shall be the place of the
respondent.
- EXC: When the Solicitor General commences
the action, it may be brought in a Regional Trial
Court in the City of Manila, in the Court of
Appeals, or in the Supreme Court.
There is this Barq where the SolGen filed a petition for
qw against a group of persons in Cebu City who
pretended themselves to be a corporations when in fact
they are not duly registered. The petition for qw,
according to the barq, was filed in the RTC in Manila.
Respondents filed a Motion to Dismiss (pwede pa ang
md ato on the ground of improper venue), on the ground
of improper venue. Is the motion meritorious?
251 | c a v e a t e m p t o r
 - No.
- Under Sec7, when the petition for qw is filed by
the OSG, the petition can be filed in the RTC of
Mnl, CA or SC.
- But if it is not filed by the SolGen, the same
shall be filed in the RTC where the respondent is
residing.
Section 10. Rights of persons adjudged entitled to
public office; delivery of books and papers; damages.
When the court finds that the petition is meritorious, the
court shall order the usurper to vacate the office that he
is usurping.
- The court shall also require the respondent to
turnover all the documents and books to the
petitioner or the relator.
o If it is filed by a private individual, the
court shall also order the respondent to
turnover all the documents or books to
the petitioner.
When the court adjudged that the petitioner is entitled to
the office, the petitioner can file a separate action for
damages.
- The person adjudged entitled to the office may
also bring action against the respondent to
recover the damages sustained by such person
by reason of the usurpation.
Section 11. Limitations.
The court cannot award damages. The petitioner has to
file a separate action for damages.
- And under Sec 11, the action for damages must
be filed within 1 year after entry of judgment
rendered in the qw case.
o So there is a prescriptive period of 1yr.
Also, under Sec11, a petition for qw must be filed within
1 yr after the cause of such ouster occurred.
- So kanang petition for qw, naay prescriptive
period of 1yr.
o This is one of the arguments raised by
Former CJ Sereno.
 When was the qw case filed? It
was only sometime in 2017 or
2018.
 Once of the arguments of
Former CJ Sereno is that the
action has already prescribed.
Nganung naprescribe naman?
 Kay 1 yr man ang
prescriptive period from
the occurrence of the
cause.
 Unya CJ was appointed some
time in 2010 or 2011. So matod
pa niya, wala na. Prescribed na.
o But why was CJ removed?
 The SC ignored her argument.
 SC: One yr prescriptive
period to file qw applies only
to private individuals who are
asserting their rights of office.
But not when it is only the
government itself seeking relief
for a public wrong and sewing
for public interest.
 IOW, SC is saying that the 1 yr
prescriptive period will only
apply to private individuals.
 The 1 yr prescriptive
period does not apply,
does not lie against the
government.
 See: Republic vs Sereno (May
11, 2018)
In the case of Republic vs Sereno, Former CJ Sereno
argued that she cannot be removed by qw because she is
an impeachable official. And it is mandated by the
Constitution that justices of the SC could only be
removed, according to her, by impeachment and not by
qw.
- In the case, SC gave distinctions b/w qw and
impeachment.
- Another argument of Former CJ Sereno is that
qw petition could not be filed or would not
prosper because an impeachment complaint has
already been filed or was still pending before the
HoR.
o Pagfile sa petition for qw, nafile na ang
impeachment complaint sa HoR.
o She asked for the dismissal of the
petition for qw, among others, on that
252 | c a v e a t e m p t o r
 ground (nga naay impeachment
complaint).
- Pwede ba nga muproceed ang qw bisag naay
impeachment complaint pending in Congress?
o SC: Quo warranto and impeachment can
proceed independently, and
simultaneously.
o (lzl res) To disabuse wandering minds,
there is nothing violative or intrusive of
the Senate's power to remove
impeachable officials in the main
Decision. In fact, in the said assailed
Decision, We recognized that the Senate
has the sole power to try and decide all
cases of impeachment. We have
extensively discussed therein that the
Court merely exercised its
Constitutional duty to resolve a legal
question referring to respondent's
qualification as a Chief Justice of the
Supreme Court. We also emphasized
that this Court's action never intends to
deprive the Congress of its mandate to
make a determination on impeachable
officials' culpability for acts committed
while in office. We even explained that
impeachment and quo warranto may
proceed independently and
simultaneously, albeit a ruling of
removal or ouster of the respondent in
one case will preclude the same ruling in
the other due to legal impossibility and
mootness.
o Quo warranto is not a figment of
imagination or invention of this Court. It
is a mandate boldly enshrined in the
Constitution where the judiciary is
conferred original jurisdiction to the
exclusion of the other branches of the
government. Quo warranto, not
impeachment, is the constitutional
remedy prescribed to adjudicate and
resolve questions relating to
qualifications, eligibility and
entitlement to public office. Those who
chose to ignore this fact are
Constitutionally blind. US Supreme
Court Justice Scalia once said: "If it is in
the Constitution, it is there. If it is not in
the Constitution, it is not there." There is
nothing in Our Constitution that says
that impeachable officers are immuned,
exempted, or excluded from quo
warranto proceedings when the very
issue to be determined therein is the
status of an officer as such. No amount
of public indignation can rewrite or
deface the Constitution.
TN: Be sure to give the distinctions between
impeachment and quo warranto.
- (lzl res from Republic vs Sereno)
- Quo warranto and impeachment are two distinct
proceedings, although both may result in the
ouster of a public officer. Strictly speaking, quo
warranto grants the relief of "ouster", while
impeachment affords "removal."
- A quo warranto proceeding is the proper legal
remedy to determine a person's right or title to a
public office and to oust the holder from its
enjoyment. It is the proper action to inquire into
a public officer's eligibility or the validity of his
appointment. Under Rule 66 of the Rules of
Court, a quo warranto proceeding involves a
judicial determination of the right to the use or
exercise of the office.
- Impeachment, on the other hand, is a political
process undertaken by the legislature to
determine whether the public officer committed
any of the impeachable offenses, namely,
culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes,
or betrayal of public trust. It does not ascertain
the officer's eligibility for appointment or
election, or challenge the legality of his
assumption of office. Conviction for any of the
impeachable offenses shall result in the removal
of the impeachable official from office.
In Election Law, quo warranto was mentioned in the
Omnibus Election Code.
- What are the distinctions b/w quo warranto
actions in elective and appointive offices?
o In qw proceedings affecting elective
offices, the issue is the eligibility of the
respondent. (Wala makacomply sa
period of residency requirement, not a
Filipino citizen, etc)
253 | c a v e a t e m p t o r
  In qw proceedings affecting
appointive offices, the issue is
the validity of the
appointment.
o Where an elective office is involved, the
occupant declared ineligible or
disloyal will be unseated, but the
petitioner will not be declared the
rightful occupant of the office.
 In appointive offices, the court
will oust the person illegally
appointed and will order the
sitting of the person who was
legally appointed and entitled
to the office.
December 9, 2020
Again, read Republic vs Sereno
- Particularly on the distinction between Quo
Warranto and Impeachment
RULE 67
Expropriation
Rule 67 is related to the power of the state of Eminent
Domain
- Eminent domain refers to the power of the state
to take private property for public use upon
payment of just compensation.
Rule 67 tells us the procedure to be followed whenever
the State exercises its power of eminent domain.
Limitations on the Exercise of the Power of Eminent
Domain:
1. It is exercised only by the State or its entities
authorized by law
o Such as the LGC for LGUs
 LGUs may exercise power of
eminent domain
o NGCP, although a private corp, has
been given by law the power of eminent
domain.
2. There must be just compensation
o Dili pwede kwaon ang yuta without
payment
3. Due process must be observed
o Although govt has power of eminent
domain and may take property for
public use, there must be due process.
o Due process meaning the procedure
under R67 must be followed.
Section 1. The complaint.
The right of eminent domain shall be exercised by the
filing of a verified complaint which shall state with
certainty the right and purpose of expropriation, describe
the real or personal property sought to be expropriated,
and join as defendants all persons owning or claiming to
own, or occupying, any part thereof or interest therein,
showing, so far as practicable, the separate interest of
each defendant.
- Expropriation is not limited to real property.
Personal property could also be subject of
expropriation.
o But most of the time, it is real property.
Kanang mga yuta. Buhatag kalsada,
skwelahan.
In the complaint, all persons owning or claiming to own,
or occupying any portion of the property, or claiming
any interest therein, shall be impleaded.
- The owners or any person claiming any interest
over the lots subject of the expropriation shall be
impleaded.
- Possible nga daghan ug defendants.
o All owners nga maagian anang kalsada
shall be impleaded as defendants.
o And all lots nga maagian shall be
described.
If the title to any property sought to be expropriated
appears to be in the Republic of the Philippines,
although occupied by private individuals, or if the title is
otherwise obscure or doubtful so that the plaintiff cannot
with accuracy or certainty specify who are the real
owners, averment to that effect shall be made in the
complaint.
- Daghan ganig claimants kay giilogan, silang
tanan iapil.
254 | c a v e a t e m p t o r
Section 2. Entry of plaintiff upon depositing value with
authorized government depositary.
There are instances that the use of the government is
urgent.
Under Sec 2, upon the filing of the complaint or at any
time thereafter and after due notice to the defendant, the
plaintiff shall have the right to take or enter upon the
possession of the real property involved if he deposits
with the authorized government depositary an amount
equivalent to the assessed value of the property for
purposes of taxation to be held by such bank subject to
the orders of the court.
- Usually, if it is the government, the plaintiff is
the DPWH.
- ―Due notice to the defendant‖
o Igo rang pahibaw-on.
If the government wants to immediately enter or possess
the property, all the govt has to do is, upon filing of
complaint or anytime thereafter, notify or inform the
defendant and make a deposit with government banks.
- Government banks:
o Landbank of the Philippines
o Development Bank of the Philippines
- Amount to be deposited?
o Amount equivalent to the assessed value
of the property.
 Where can we see the assessed
value? Luyo sa Tax Dec.
 Kada yuta naay tax dec
nga gibuhat sa city
assessor. Sa luyo, naa
na dira ang assessed
value
 Assessed value is usually 25%
of the market value.
 Ang assessed value,
mao nay ideposit sa
bank.
If the plaintiff is the government, the govt can now ask
the court to issue writ of possession
- So after making deposit with notice to the
defendant/s, the govt now can develop the
property after asking writ of possession from the
court.
The amount deposited which is equivalent to the
assessed value of the property would serve as
preliminary payment or advance payment for the
amount of just compensation.
- Kana gung expropriation proceedings, sagad
walay dag-anan ang defendant.
o Govt has the power to take private
property for public use
o Private ownership has to give way to
general welfare.
 Buhatag kalsada, buhatag
skwelahan.
 Mugive way jud ang owner.
- The usual issue in expropriation proceedings is
the amount of just compensation
o Kay kaning govt kung maoy mamalit ug
yuta, maguwang nalangs pangayoon.
o Mao na nga ang tag-iya, labi nag gipalit
ug minillion, for example tag 4k/sqm
nya paliton ug 500/sqm.
- The preliminary deposit made by the govt would
serve as advance payment.
o Just in case, although seldom, the
expropriation case will be dismissed
because the expropriation is not proper
or justifiable, the preliminary deposit
made by the govt would serve as
preliminary payment for the damages
sustained by the defendants.
Expropriation proceedings may be filed by the National
govt or by the LGU.
- Under OCA Circular 113-2019 (July 16, 2019):
o This is in connection to RA 10752
which repealed RA 8974.
 RA 8974 is a special law to
facilitate acquisition of right of
way, cite or location for national
govt infrastructure projects.
 Madugay man nang
expropriation
proceedings sagad. Mao
nang gibuhat ang RA
8974.
 But RA 8974 has been
repealed by RA 10752.
 RA 10752 is applicable
to national govt
255 | c a v e a t e m p t o r
 infrastructure
projects.
 Acquisition of right of
way, cite or location for
national govt
infrastructure projects.
o Under this circular, RTCs are required
to accept the deposit of the
implementing agency in right of way
cases pursuant to RA 10752 without
court order issued for the account of the
office of the clerk of court for multiple
sala courts or the court itself for single
sala courts.
 IOW, the courts of RTC are
required to accept the deposit of
implementing agencies of right
of way cases pursuant to RA
10752 without a court order.
 Tanang jd for expropriation sa
RTC.
o Ganina, naghisgot ta ug preliminary
deposit nga adto ideposit sa bank.
 This rule is applicable in other
cases of expropriation.
 RA 10752 is for national
infrastructure projects.
 Mga dinalian.
 For example, airports
o Upon the filing of the complaint, or at
any time thereafter, and after due notice
to the defendant, the implementing
agency shall deposit to the court in favor
of the owner the 100% of the zonal
value.
 Assessed value as mentioned
ganina is different.
 In RA 10752, for national
infrastructure projects, 100% of
the zonal value is the basis.
 Zonal value, mao ni ang
amount nga iassign sa
BIR.
 Ang assessed value mao
ang amount nga iassign
sa municipal or city
assessor
o The RTCs are required to issue the writ
of possession within 7 working days
upon making the deposit of the amount
equivalent to the 100% of the zonal
value of the property or properties
involved.
So back to Section 2, for general, for those other cases
for expropriation.
Requirements for issuance of writ of possession under
Sec 2 (as ruled by the SC in Municipality of Cordova vs
Pathfinder Development Corp; June 29, 2016)
- (a) the sufficiency in form and substance of the
complaint, and
- (b) the required preliminary deposit in the
amount of the assessed value
o Deposit will be made in the DPB or
Landbank.
According to SC, upon compliance of the requirements,
the petitioner is entitled to a writ of possession as a
matter of right, and the issuance of the writ is a
ministerial duty.
No hearing is actually required for the issuance of a writ
of possession
- This is kung gusto ang government nga
mudevelop dayon, muenter dayon sa property,
musugod dayon sa pagbuhat sa kalsada.
o Kung muenter gani, nagrequire ug
preliminary deposit.
- Kung dili mupossess immediately ang
government, which is unusual kay usually
muenter dayon na sila, preliminary deposit is not
required.
o Pwede ra ang bayad inig human sa case.
- Pero ang usual jud, ang government muenter
dayon.
o Mao na nga kung muenter gani,
girequire ang preliminary deposit
Read Ra 10752.
Section 3. Defenses and objections.
As discussed, the usual issue in expropriation
proceedings is the amount of just compensation.
Under Sec 3, if a defendant has no objection or defense
to the action or the taking of his property, he may file
and serve a notice of appearance and a manifestation to
256 | c a v e a t e m p t o r
that effect, specifically designating or identifying the
property in which he claims to be interested, within the
time stated in the summons.
Kung wala gani siyay objection, he may file a
manifestation that he does not have any objection to the
taking or expropriation
- Ang ubang tag-iya ana kay malipay man sad.
- Maagian na gani nag kalsada, mushoot up man
na ang value sa yuta.
o For example. Transcentral highway.
Lands used to be just ??Php/sqm. Karon,
10k/spm na.
o In 2010 Presidential Elections, one of
the issues raised against Villar is
gipatuyo ug agi sa kalsada ang iyang
yuta.
- Sagad lalisan ang JC rajud.
Just in case the defendant has any objection, he has to
file an answer.
No cross claim, counterclaim, third party complaint is
required.
Under the last paragraph:
- W/n a defendant has filed his answer, he has the
right to present evidence to prove just
compensation.
o Walay default diri.
There shall be a hearing if the defendant/s would contest
the right of the govt to take the property.
- Naa man gud nay defendants nga muobject,
muquestion sa propriety sa expropriation. So
there shall be a hearing
- After the hearing, the court will issue an order
w/n expropriation is proper
Steps in Expropriation proceedings:
- 1st step: Determination as to whether
expropriation is proper
- 2nd step: If the court says expropriation is proper,
court goes to the 2nd step which is the
determination of the amount of just
compensation.
If no objection, it would only be a single step process,
where the court determines just compensation.
Section 4. Order of expropriation
In expropriation cases, multiple appeals are allowed.
- The order of the court allowing the expropriation
can be subject of appeal.
- Although it is an interlocutory order, under Sec4
2nd par, the order of the court allowing the
expropriation can be subject of appeal.
- TN: If multiple of appeals are allowed, as
discussed, record on appeal is required.
Section 5. Ascertainment of compensation.
The issue on just compensation is beyond the
competence of the court.
- Sagad, walay alam ang judge ana.
- Kinsa may nakahibaw sa presyo sa yuta? Those
persons engaged in real estate business.
Realtors.
- Mao na nga ang courts, under sec5, the courts
are required to create or appoint not more than
three (3) competent and disinterested persons as
commissioners to ascertain and report to the
court the just compensation for the property
sought to be taken
o Not more than 3 – pwede 3, pwede 2,
pwede 1 ra.
 Usually, 3. One rep from
defendant, one rep from
plaintiff, and another from the
govt which could be the
assessor or someone from BIR.
The appointment of commissioners is mandatory.
- The appointment of commissioners in R32 is
discretionary.
- But here in expropriation proceedings,
appointment of commissioners is mandatory.
Kung pananglitan magminaldito ang government.
Muenter usa sa property. Walay file2 ug case for
expropriation. Unsa may buhaton sa landowners?
- They can file an action against the government.
o But it is not expropriation.
o They call it inverse condemnation
 They would ask the court to
compel the government to pay
them the amount of JC.
- Kanang kuhaon daan, murag despotic.
257 | c a v e a t e m p t o r
 - See: NPC vs Asoque (G.R. No. 172507, Sept 14,
2016)
o In the case, the National Power
Corporation (NPC) installed
transmission lines on respondent’s lot,
in the lot of Sps Asoque, for its HVDC
power line project, without just
compensation
o Sps filed a case against NPC for
payment of just compensation. Inverse
condemnation.
o When what is filed is inverse
condemnation, R67 will not apply
because there is no expropriation.
 The appointment of
commissioner/s would be
governed by R32 and not R67.
Section 6. Proceedings by commissioners.
The commissioners may conduct proceedings, may
receive evidence from the parties to help them determine
the amount of just compensation.
Section 7. Report by commissioners and judgment
thereupon.
Comissioners are required to submit a written report
before the Court of the amount of just compensation
within 60 days.
- But usually, it would be more. Di mahuman
within 60 days.
Section 8. Action upon commissioners' report
What would be the action of the court after
determination?
- Just like Sec 32, the court is not bound by the
recommendation of the commissioners.
- The appointment of commissioners is
mandatory, but their recommendation or report
is merely recommendatory. Court may accept or
reject the report of the commissioners.
Section 9. Uncertain ownership; conflicting claims.
What if there are conflicting claimants on the lots subject
of the expropriation?
- If there are conflicting claimants over the lots
subject to the expropriation, the amount to be
paid for the just compensation may be
deposited to the court until the conflicting
claims of the parties will be resolved.
o Ideposit sa didto sa court.
Under existing jurisprudence, in the case of Republic vs
Tatad (Apr 1, 2013)
- SC: The court has the power to rule the
conflicting claims of ownership over the subject
property. However, its ruling is not final, but
merely to prove a right to compensation to the
taking.
- The ruling of the court is not conclusive, and it
remains open to challenge through proper
actions.
o IOW, the court where the expropriation
proceedings are filed, and in the event
that there are conflicting claimants on a
lot/s subject of the case, the court may
provisionally, may temporarily rule
upon on the issue of ownership
 Temporary.
 If the parties would want lasting
resolution on their conflicting
claims, they have to file a
separate case.
 But the court where the case is
pending may rule on the issue of
ownership, but its ruling is not
final. It is merely to determine
who shall receive the amount of
just compensation.
o The ruling is similar to an ejectment
case. It is merely temporary and not
final.
Section 10. Rights of plaintiff after judgment and
payment.
After the court has rendered its decision as to the amount
of just compensation, the plaintiff (the government, if
the govt has not yet taken possession) it is now entitled
to possession.
- If it has already taken possession, it may
continue or retain possession upon payment of
the amount to the defendant or defendants.
258 | c a v e a t e m p t o r
Section 11. Entry not delayed by appeal; effect of
reversal.
The right of the plaintiff to enter upon the property of
the defendant and appropriate the same for public use or
purpose shall not be delayed by an appeal from the
judgment.
What would be the remedy if the government would not
pay the defendant?
- Remember Law on Sales under CC? That if the
buyer will not pay, the seller may file a case of
rescission. Pwede bawion ang yuta nga
gibaligya.
- SC in the case of Reyes vs National Housing
Authority (Jan 20, 2003):
o As a rule, the non-payment by the
expropriating authority of just
compensation does not entitle the
private landowner to recover possession
of their expropriated lots.
o In arguing for the return of their
property on the basis of non-payment,
respondents ignore the fact that the right
of the expropriating authority is
different from that of an unpaid seller in
ordinary sales, to which the remedy of
rescission might perhaps apply.
 However, if the government
fails to pay just compensation
within 5 years from the finality
of judgment, landowner may
have the right to recover
possession of his property.
 PP vs Lim (June 29, 2005)
So remedies if the government will not pay bisag naa
na’y decision ang court:
1. File a case for recovery of possession
o If the government fails to pay within 5
years
2. File a case of mandamus to compel the
enactment of a necessary appropriation
ordinance
o This is with regards to LGUs.
o Unpaid owners may file a case for
mandamus to require the LGUs, if the
expropriation was filed by the LGU, to
enact appropriation ordinance for the
payment of just compensation.
 Yujuico vs Atienza Jr (Oct 12,
2015)
Question: Kung, ang expropriated properties, wala
dayona ug gamit. Are you familiar with IT Park in
Lahug. It used to be Lahug Airport. There was a
proposal before that Lahug Airport will be expanded.
Nagfile sila ug expropriation cases. Later on, the
government abandoned the idea kay daghan ug namuyo,
delikado ug simbako madisgrasya, gibalhin ang airport
sa Mactan. What will happen if dili mudayon ang
government, or muabandon ang government sa public
purpose?
- SC: The taking of property consequent to the
government’s exercise of its power of eminent
domain is always subject to the condition that
the property shall be devoted for the specific
public purpose for which it was taken. If such
particular purpose is not initiated, or not at
all pursued and is abandoned, the former
owners, if they so desire, may seek the
reversion of the property subject to the
return of the amount of the jc received.
o MCIAA vs Lozada Sr (Feb 25, 2010)
o Lzl res: Corollarily, if this particular
purpose or intent is not initiated or not at
all pursued, and is preemptorily
abandoned, then the former owners, if
they so desire, may seek the reversion of
the property, subject to the return of the
amount of just compensation received.
In such a case, the exercise of the power
of eminent domain has become
improper for lack of the required factual
justification.
o Meaning, pwede bawion.
- The previous decision of the court saying nga
dili pwede, was reversed and abandoned by the
SC.
Under LCG, Sec 19:
- An LGU, through its Chief Executive, acting
through an ordinance, exercises the power of
eminent domain for public use or for purpose, or
welfare for the benefit of the poor and the
landless upon payment of just compensation.
259 | c a v e a t e m p t o r
 - Expropriation proceedings under LGC, pwede
dili for public use, provided that the property
shall be used for the homeless, for the poor.
o For example, housing project.
o Kung ang mga informal settlers
pambalhinon, magkinahanglan jud ug
yuta ang local govt. Pwede ba
expropriation proceedings nga ang
purpose niya dili man public use? Para
man sa informal settlers?
 Yes.
 This is provided under the LGC.
- The power of eminent domain may not be
exercised unless a valid offer has been
previously made to the owner and the offer
was not accepted.
o So kinahanglan, duolon sa sa LGU. Dili
kay dritsoon ug buhat ug kalsada
o Duolon, hangyoon sa kung pwede ba
paliton.
o This is a condition precedent.
- If the owner would refuse, the Local Govt may
take possession of the property upon filing of an
expropriation proceeding and upon making a
deposit with the proper court at at least 15% of
the FMV at the time of the taking of the
property.
o Under Sec 2, amount is the assessed
value.
o Under RA 10752, for national govt
infrastructure projects, 100% zonal
value.
o LGU, 15% of market value
 Ideposit sa court, not sa bank.
RULE 68
Foreclosure of Real Estate Mortgage
Nakasuway na ba mo’g pangutang sa bank?
- If dagko na nga amount ang utangon, kanang
money lenders dili na musugot walay security
for payment.
- Usual security: Real Estate Mortgage.
o If muutang ka sa bank, you will sign 2
contracts – promissory note (for the
loan) and real estate mortgage.
If dili makabayad ang debtor, there are 2 ways of
foreclosing mortgaged property
1. Extra-judicial foreclosure
o This is the usually availed of.
o This is what is normally done by banks
or lenders because it is less expensive,
unya sayon ra.
o How availed?
 Go to notary public.
 NP conducts auction sale. There
should be a publication before
auction sale.
 Pwede pud muadto sila sa court
(sa sheriff), muapply for
extrajudicial foreclosure
o This can be availed of if the mortgagor
or debtor has executed an SPA
authorizing the creditor to foreclose the
property in the event the debtor fails to
pay his loan.
o Which law?
 Act No. 3135, as amended by
Act 4118.
o TN: Mortgagor need not be the debtor.
 For example, nangutang ka for
the bar. Wala man kay yuta,
imong parents nga yuta. So
ikaw ang debtor, imong parents
ang mortgagor.
2. Judicial Foreclosure
o But there are some instances wherein
creditor would not require debtor-
mortgagor to sign SPA.
 If no SPA signed by the debtor-
mortgagor, then the creditor
cannot avail of extra-judicial
foreclosure
 If walay makapirma ug SPA,
then judicial foreclosure can be
availed
o The procedure for judicial foreclosure is
laid down in R68
How?
- Creditor will file a complaint for judicial
foreclosure.
- In the judicial foreclosure, the cause of action is
the nonpayment of loan.
260 | c a v e a t e m p t o r
TN: Judicial foreclosure is only one of the means, one of
the alternative remedies that can be availed of by the
creditor
- If dili ganahan ug yuta, pwede ang creditor
mufile ug collection for a sum of money.
o If creditor will file a collection suit, it
could no longer avail of foreclosure
 Alternative man. Di man
cumulative.
o If muavail ug collection sum of money,
unya di gihapon kabayad ang defendant
unya naa siyay yuta, pwede ra gihapon
iauction sale.
- If gusto ug foreclosure, mufile ug complaint,
cause of action is the nonpayment of the loan.
o The debtor-mortgagor have to be
impleaded and all persons who have
interest in the lot.
 If kadtong lot naprinda pajud
tog lain, all those persons who
have interest in the lot shall be
impleaded.
o The owner of the lot shall be impleaded,
including those persons having interest
over the lot.
Section 2. Judgment on foreclosure for payment or
sale.
So there will be a complaint, unya answer.
- After trial, if the court finds the case
meritorious, meaning there is proof that the
defendant obtained a loan which is secured by a
real estate mortgage and failed to pay, the court
will give the defendant a last chance to pay to
avoid foreclosure.
o This is what is called equity of
redemption
 Within the range of 90 to 120
days, the court may give the
defendant time to pay the loan
 Magpili ra ang court
pila ka-days
o If after the lapse of the period, the
defendant still fails to pay, the property
shall be now sold to a public auction to
satisfy the judgment.
As a rule, in judicial foreclosure, there is no right of
redemption
- Under R39, after sale, defendant has within 1 yr
to redeem.
- In judicial foreclosure, mortgagor has no right of
redemption.
o But instead of right of redemption, he is
given equity of redemption.
 Sa extra-judicial foreclosure,
naay right of redemption for 1
yr.
o (EXC) There is a right of redemption in
a judicial foreclosure only when the
creditor is a bank.
 If the creditor is a bank, unya
nifile siya ug judicial
foreclosure, the defendant-
mortgagor has equity of
redemption and right of
redemption of 1yr.
Section 3. Sale of mortgaged property; effect.
As discussed, if the defendant-mortgagor fails to pay his
loan, the property not shall be sold in a public auction.
- Considering that he has no right of redemption,
if the sale is affirmed by the court, the court will
now divest or dispose the mortgagor right of his
property.
- Court will issue a writ of possession
Under the last par, if the right of redemption would
apply, the buyer has to wait for the lapse of redemption
period of 1 yr.
- After lapse of 1yr, that would be the time that
the buyer may now file petition for issuance of
writ of possession
Section 4. Disposition of proceeds of sale.
How to dispose proceeds of the sale
- The proceeds shall be used to pay expenses
incurred in the sale
- And ofc, the amount to pay off the loan.
If there are other creditors, the junior encumberancers.
Bayad sa utang, if naay sobra, ibayad sa JE.
- If naa pajuy sobra, the rest shall be returned to
the mortgagor or owner.
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Section 6. Deficiency judgment.
If magkuwang ang proceeds?
- Creditor may demand payment for deficiency.
- There could be deficiency judgment.
After lapse of redemption period, if there is redemption
given, or after the sale is affirmed by the court, the title
of the mortgagor shall be cancelled.
RULE 69
Partition
Bisaya?
- Bahin-bahin.
Partition is applicable only when there is co-ownership.
- When a property is subject to co-ownership and
the co-owners want to end the co-ownership.
What is the usual source or cause of co-ownership?
- Co-ownership is usually based on inheritance.
- If ang parents will die and there are properties
nga gibilin, the children will become co-owners.
Under Art 494 CC, the co-owners may agree not to
partition the property within 10yrs, and it can be
extended if they want.
Likewise, a testator or donor may prohibit partition for a
period of 20 yrs.
- Especially for properties with sentimental value.
- For example, imong lolo or lola. Naay pamana.
Pwede maghimo ug will nga di bahinon within
20 yrs.
Suppose, the co-owners (heirs) want to end the co-
ownership. They want to partition the property.
- There are 2 ways of settling co-ownership.
Parties may agree to partition the property
o They may do extrajudicial partition
 Pwede ra muexecute ug deed of
extrajudicial partition.
 But this happens if
magkasinabot ang tanang parties
(heirs) unsaon pagbahin.
o Kung dili magkasinabot, parties may file
for judicial partition.
 How is this done? Sec 1
Section 1. Complaint in action for partition of real
estate.
A person having the right to compel the partition of real
estate may do so by filing a complaint, and describe the
properties involved and demand a partition.
In a partition case, all the co-owners, all the heirs, are
considered indispensable parties.
- If naay dili muapil. Muingon ang kamanghuran
nga ikiha ang maguwang para ibahin. Ang
middle, dili muapil. Mangayo lag sobra if naa.
Pwede? Dili
o Ang dili muapil will be joined as a
defendant.
Suppose, dili jud maapil. Is a non-joinder of an
indispensable party a ground for the dismissal of the
complaint?
- No.
- If there is a need to implead an indispensable
party, or a necessary party, one of the parties
may file a motion in court, or the court itself
may order the plaintiff to implead such party.
After the complaint is filed, defendant is required to file
an answer.
- Then there will be hearing.
Partition is the same with expropriation. This has 2
stages.
- (1) Determination if properties are proper for
partition
o Kay basin naay prohibition sa testator,
or naay agreement not to partition
within 10 yrs.
o Or, other sibling will say that ―wala nay
katungod makigbahin kay napalit na.‖
 The court has to determine if the
property is really proper for
partition
- (2) After determination if partition is proper,
next step is to determine how to divide the
property.
262 | c a v e a t e m p t o r
 o Di gani magkasinabot, ang mahitabo ana
mabaligya sa lain. Or kung maigo ra
nila, the properties may be divided by
means of raffle para walay makapili.
If 10 kabuok managsuon, ang property 100sqm. Pero naa
sa commercial area.
- Unsaon man na pagbahin nga 10 sila kabuok?
o Pwede nga ang isa sa mga heirs mupalit.
Problem is if sila tanan ganahan mupalit.
o Ang mahitabo, lain ang mupalit, and
proceeds will be divided.
Section 2. Order for partition and partition by
agreement thereunder.
Partition is one of those cases where multiple appeals is
allowed.
Section 3. Commissioners to make partition when
parties fail to agree.
Partition is also one of those cases where appointment of
a commissioner is mandatory.
- The appointment of a commissioner is
mandatory but their report is merely
recommendatory.
The court may accept the report of the commissioners or
reject the report.
Section 5. Assignment or sale of real estate by
commissioners.
If the property cannot be divided without prejudice to
the interests of the parties, the court may order that it be
assigned to one of the parties. When one of them will
object, then the property shall be subject to an auction
sale.
After the court has determined that the property has to be
partitioned, the next step is to determine how to partition
the property.
- The court has to appoint commissioners.
- Usually maappoint as commissioner, in lands,
ang kanag geodetic engineers.
Section 10. Costs and expenses to be taxed and
collected.
The expenses shall be shared by the co-owners,
including the taxes.
After the court has determined that the properties have to
be partitioned, the court could ask suggestion from the
parties as to how to partition the property.
- This is what is called Project of Partition
- Usahay dili man magkasinabot ang parties, mao
nang ang court will ask for suggestions as to
how the properties should be divided.
- Kung dili jud madala kay dili magkasinabot ang
parties, if enough gani madivide among the
heirs, mao na iraffle. If dili jud madala, kay
gamay kaayo ang property for example,
ibaligya, iauction ang property nya bahinon ang
proceeds.
Including personal properties.
- Mao nang usahay gubot kaayo. Kay kana
bitawng properties nga gipaabangan. Ang mga
igsuon mangayo man ug accounting kung asa na
ang mga abang.
RULE 70
Forcible Entry and Unlawful Detainer
This is about ejectment.
There are 3 kinds of actions for the recovery of
possession of real property
1. Ejectment
o Otherwise known as action interdictal
o This is either forcible entry or unlawful
detainer
o This can be filed if the dispossession has
not lasted for more than 1 yr
o All cases shall be filed in the MTC,
regardless of the assessed value of the
property and of the amount of damages
prayed for by the plaintiff
o Another word for ejectment: Recovery
of Possession
2. Accion Publiciana
o Considering that ejectment has a
prescriptive period of 1yr, after the lapse
of 1 yr from dispossession, ejectment
263 | c a v e a t e m p t o r
 could no longer be filed. Remedy sa o How was the defendant able to enter the
wala nakafile dayon? property?
 The remedy is Accion o If the manner of entry (pirmirong
Publiciana. pagsulod) by the defendant was
o AP kay ang bahaw nga ejectment unlawful because he entered into the
o The issue here is still possession. property by force, threat, intimidation,
o After lapse of 1 yr, mabawi ra gihapon strategy or stealth, the proper action is
ang property through accion publiciana. forcible entry.
3. Accion Reinvidicatoria  Force. Gipapahawa ka. Gipugos
ka.
Ang AP ka yang bahaw nga ejectment. But, ang ilang  Strategy or stealth.
procedures are different.  Kanang igo rakang
- In E, the jd is with MTC regardless of value and gilipat-lipat.
damages.  For example, naa kay
o In AP, the jd is with MTC or RTC property. Wala nimo
depending on the assessed value nakoral. Ang uban ana
o Same with AR. Jd is MTC or RTC butngan ug lamisa. Nya
depending on assessed value. init man, butngan ug
payong. After 1 month
This is real action since this involves recovery of kung walay nibadlong,
possession of real property. bungbongan nana niya.
If wala gihapoy
AP and ejectment are similar, the issue in both is the nibadlong, butgan nana
physical possession. ug kawayan.
- Issue is which of the parties has the better right Kadugayan, buhatan
to possess the property. nana hollow block.
- The possession being the issue is physical or Mashock nalang ka.
material possession.  This is stealth. Forcible
o Physical or material possession entry.
 Possession that is not based on  This has to be filed within 1 yr
the claim of ownership. from dispossession.
 Pananglitan, naay nangabang sa  As to stealth or strategy,
inyo. Kung imong pahawaon counting shall be from
kay wala kabayad rent, ang the date of discovery.
issue is ownership ba? No. The o If naa kay balay, imong gipaabangan.
issue is only as to the Nya wala na nakaabang. Imong
possession. padalhan ug demand letter nga
 Possession is different paabangon, kung di gani pahawaon.
from ownership. What case will you file? Unlawful
 Physical or material possession detainer.
is otherwise known as  In UD, the entry is legal from
possession de facto. the start. However, later on, the
possession becomes illegal
Section 1. Who may institute proceedings, and when. because he was not able to pay
the rentals, or was able to pay
How do you determine if what you will file is forcible rentals but fails to follow
entry or unlawful detainer? conditions.
- These actions are different from each other.
- Determine the manner of entry.
264 | c a v e a t e m p t o r
  For example, ginadili
ang magpaborders. Or
magbuhi ug pets.
 If nagsige siyag bayad
ug lease but violated the
conditions, pwede
pahawaon? Yes.
 What to do? Give
demand letter to vacate.
 If wala nakabayad
rental, give demand
letter to pay rentals and
to vacate.
 TN: it is the demand letter that
would make the stay illegal
 The counting of the 1 yr period
will start from the receipt of the
demand letter.
 For example, naa kay daghang
demands nahatag kay sigeg
hangyo.
 In case of series of
demands, the date of the
last demand.
 Pananglitan, naa kay parente
gikan sa probinsya. Nya
nihangyo kay naa kay vacant lot
sa luyo, niask if pwede
makatukod. Kung gamiton,
mubiya. Giallow. Nya niask
pwede ba iconcrete, niallow.
Nya naglalis naman, gusto na
papahawaon. Di man muhawa.
What case?
 TN: Entry from the start
was lawful.
o Wa man nag-
abang? By
tolerance.
o Tolerance
means
permission.
 For action to be
considered as UD, the
tolerance must be
present from the very
start.
o Pananglitan, naa kay yuta. Unya pag-
adto nimo, naay nagbalay, wala
nananghid. Action? Forcible entry.
 Nya wala naman mabuhat,
niallow nalang ka.
 After 3 years, imong pahawaon.
Di naman muhawa. What case
are you going to file?
 Not UD or FE.
 The case that should be
filed is action
publiciana.
 Your case for FE has
already prescribed.
 Prescriptive period for
forcible entry started
when you discovered
the defendant
occupying your
property without your
consent. That was, he
occupied your property
through stealth or
strategy. But you did
not file an action within
1 yr from your
discovery. So, the
action has prescribed.
And the propet action
now would be accion
publiciana.
 Pero ang pangutana, there was
tolerance. When discovered,
owner granted the occupant
permission to continue
occupying. Would it not
transform action from FE to UD
because of tolerance?
 No.
 Tolerance must be
present from the very
start of occupation.
 Absent tolerance from
the start, no UD.
 The tolerance or
permission given later
on by the owner, as well
as the demand to vacate,
according to SC, it
265 | c a v e a t e m p t o r
 would not transform the
COA from FE to UD.
 Proper action would be
Action publiciana
because action for FE
has already prescribed.
December 11, 2020
TN: The right to ask partition is imprescriptible.
- In the case of Quintos vs Nicholas:
o SC: Between dismissal w prejudice
under Rule 17 Sec3 and the right
granted to co-owners under Art 494 of
NCC, the later law shall prevail.
o In the case, the parties are siblings. At
first, the first 3 siblings filed an action
for partition involving a parcel of land
inherited by them from their parents.
During pre-trial, plaintiffs did not
appear. Case was dismissed with
prejudice. Some years later, the other
siblings who were defendants of the
partition case, filed another case for
recovery of ownership and possession
against the siblings who were plaintiffs
in the partition case which was earlier
dismissed.
o Defendants in the 2nd case raised the
counterclaim of partition. In their
answer with counterclaim, they prayed
to the court that the property should be
partitioned among themselves.
o The plaintiffs in the 2nd case argued that
the issue could no longer be raised on
the ground of res judicata because the
previous partition case has already been
dismissed and the dismissal was with
prejudice.
o Issue in the case: W/n plaintiffs in the 1 st
case could still raise the issue of
partition in the 2nd case.
o SC: Yes.
 Partition is imprescriptible,
and failure to prosecute under
R17S3 is considered dismissal
without prejudice.
 As discussed, R17S3,
dismissal is considered
dismissal with
prejudice, unless the
court would declare
otherwise in his order.
 But in the partition case,
if ever the case would
be dismissed for failure
to prosecute, the
dismissal is understood
to be without prejudice
 SC: Art 494 is an exemption to
R17S3 of the ROC, to the effect
that even the order of dismissal
for failure to prosecute is silent,
or w/n it is with prejudice, it
shall be understood to be
without prejudice.
o SC: No res judicata in this case.
Let’s continue discussion on Ejectment.
3 kinds of action for the recovery of possession of
property
1. Ejectment (Accion Interdictal)
o Should be filed within 1 yr from
dispossession or discovery (stealth and
strategy) for FE, or within 1 yr from
receipt of the demand letter (or last
demand letter if there are several
demands) for UD
o Cognizible by 1st lvl courts
2. Accion Publiciana
o If the ejectment case would be filed
beyond 1 yr period, it would be
dismissed. Proper action would be AP.
o Cognizable either by MTC or RTC,
depending upon the assessed value.
3. Accion reinvidicatoria
o Action for the recovery of ownership,
including possession of real property
o Could be filed either in MTC or RTC,
depending on assessed value.
TN: If jd depends on the assessed value, the amount
should be stated in the complaint.
- If there is no mention of the amount as to the
assessed value, the court, either MTC or RTC
could not acquire jurisdiction.
266 | c a v e a t e m p t o r
 RULE 70
Forcible Entry and Unlawful Detainer
Kinds of Ejectment:
- The two kinds are entirely different from each
other.
1. Forcible Entry
2. Unlawful Detainer
To determine what is the cause of action, to determine
w/n the proper case should be filed is FE or UD: look at
the manner of entry.
- If entry was effected through unlawful means, it
would be forcibly entry
o Such as by force, intimidation, strategy
or stealth
- If the entry was initially, or at first, legal because
there was a contract of lease of the parties or the
stay of the defendant was with permission or
tolerance of the plaintiff, but later on, the
possession of the defendant became illegal or
unlawful.
o For example, if it was by virtue of a
contract of lease, he was not able to pay
the rentals. Or, failed to comply with the
conditions imposed in the contract of
lease.
o Or if by tolerance, the permission is
withdrawn by virtue of a Demand to
Vacate.
o So in the examples, the COA is
unlawful detainer.
If the jurisdiction depends on the assessed value, value
should be stated in the complaint.
- If the cause of action is FE/UD, the manner of
entry must be alleged in the complaint.
o If dili gani istate kung giunsa pagsulod,
either unlawful, legal or illegal, that will
be fatal. The action is netiher FE/UD.
The case will be dismissed.
Section 1.
Who may institute proceedings, and when.
It is forcible entry if a person deprived of the possession
of any land or building by force, intimidation, threat,
strategy, or stealth. (FISST)
- Any of these.
o Dili man pwede by force, nya with
stealth pajud.
- Usually, by stealth. Kanang dili mananghid
It is unlawful detainer when a lessor, vendor, vendee, or
other person against whom the possession of any land or
building is unlawfully withheld after the expiration or
termination of the right to hold possession, by virtue of
any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor,
vendee, or other person,
Plaintiff may, at any time within one (1) year after such
unlawful deprivation or withholding of possession, bring
an action in the proper Municipal Trial Court against the
person or persons unlawfully withholding or depriving
of possession, or any person or persons claiming under
them, for the restitution of such possession, together
with damages and costs.
As regards unlawful detainer, there must be a demand
to pay rentals and vacate.
- TN: AND.
o If ―or‖ imong gigamit, for example
―You are hereby required or demanded
to pay rent or vacate,‖ it is defective
because you are giving an option to the
lessee, either to vacate or pay the rent or
comply with the condition.
o It must be ―and‖
- The demand to vacate in UD cases is
jurisdictional.
o If no demand to vacate, the case will be
dismissed.
o Jurisdictional, meaning the court could
not acquire jd over the case.
- How should demand to vacate be made? See
Sec2
Section 2.
Lessor to proceed against lessee only after demand.
Unless otherwise stipulated, such action by the lesser
shall be commenced only after demand to pay or comply
with the conditions (if basis is ang wala pagcomply sa
conditions) of the lease and to vacate is made upon the
lessee, or by serving written notice of such demand upon
the person found on the premises if no person be found
thereon, and the lessee fails to comply therewith after
267 | c a v e a t e m p t o r
fifteen (15) days in the case of land or five (5) days in
the case of buildings.
Tagaan ug time to vacate:
- 15 days for land
- 5 days for buildings
- Some lawyers aron dili maglibog, parehaon 15
days.
Demand to vacate is a requirement for unlawful detainer.
- Mere failure to pay rentals would not make the
stay or possession of the defendant unlawful.
- It is the making of the demand to pay the rent
and to vacate.
Suppose, the defendant would pay the rent. Can he still
be required to vacate?
- Yes.
- The demand is pay ―AND‖ vacate
o Bisag nakabayad sa rentals, pwede
gihapon filean ug ejectment.
- See: Fernandez vs Amagna (601SCRA320)
o Even if the tenant pays rentals in arrears,
he may still be ejected. The demand is
not merely for the payment of the rentals
but also to vacate.
o The demand is to pay AND vacate
Elements, FE
1. Plaintiff was in prior possession of the disputed
property
o Plaintiff must be in prior possession. He
must be in possession of the property
prior to the possession of the defendant
2. Defendant deprives plaintiff of his possession
either by means of force, intimidation, strategy
or stealth, or threat
3. The action must be filed within 1 year from the
time the owner or the legal possessor learned of
the dispossession or within 1 yr after the
dispossession or, in case of stealth or strategy,
within 1 yr from the learning of the
dispossession.
o See: Regalado vs Dela Pena (Dec 13,
2017)
Elements, UD
1. Initially, the possession of the property by the
defendant was by a contract with, or by
tolerance of the plaintiff.
o Meaning, at the start, it was lawful
o If the entry or possession is by
tolerance, the tolerance must be present
from the very start
2. Eventually, possession became illegal upon the
plaintiff’s notice or demand to the defendant of
the termination of the latter’s right of possession
o Possession became illegal upon the
plaintiff’s giving of the demand to pay
and vacate
3. Thereafter, defendant remained in possession of
the property and deprived the plaintiff of his
enjoyment
4. Within 1 year from the making of the last
demand upon the defendant to vacate the
property, the plaintiff filed the complaint for UD
o See: Republic vs Sunvar Realty Devt
Corp (June 20, 2012)
TN: Mere failure to pay rents does not ipso
facto (automatically) make unlawful tenant's possession
of the premises.
- It is the owner's demands for tenant to vacate the
premises, when the tenant has failed to pay the
rents on time, and tenant's refusal or failure to
vacate, which make unlawful withholding of
possession.
- Canaynay vs Sarmiento (79 PHIL 36)
FE vs UD
- FE, the possession of the land is unlawful from
the very start or from the beginning as he
acquires possession by force, intimidation, threat
strategy or stealth.
o UD, the possession is initially lawful but
becomes illegal by reason of termination
of right to the possession of the property
in his contract with the plaintiff due to
the withdrawal of the permission or
tolerance by the plaintiff.
- FE, demand to vacate is not required.
o UD, plaintiff is required to make
demand to vacate and pay rentals before
filing the case in court
268 | c a v e a t e m p t o r
 - FE, plaintiff must prove that he was in prior
physical possession of the property before he
was dispossessed by the defendant.
o UD, the plaintiff need not be in prior
physical possession of the property.
- FE, the counting of the 1 yr prescriptive period
would start from the date of actual entry, except
when dispossession done through stealth or
strategy where prescriptive period shall be 1yr
after date of discovery
o UD, the counting shall start from the
date of last demand.
If the COA of the plaintiff is FE because the entry of the
defendant was illegal from the start, the demand to
vacate made by the plaintiff would not change his COA
from FE to UD.
- Muñoz vs CA (214 SCRA 206)
Again, tolerance must be present from the start of
possession which is sought to be recovered in order for
the case to be considered UD.
- See: Go vs CA (362 SCRA 755)
If what is filed is FE/UD, the manner of entry must be
alleged in the complaint. Otherwise, the case will be
dismissed.
- See: Jose vs Alpuerto (Nov 26, 2012)
Section 3.
Summary procedure.
Except in cases covered by the agricultural tenancy laws
or when the law otherwise expressly provides, all actions
for forcible entry and unlawful detainer, regardless of the
amount of damages or unpaid rentals sought to be
recovered, shall be governed by the summary procedure
hereunder provided.
Kaning Rule 70, gikan ni sa Revised Rules on Summary
Procedure.
GR: As discussed, the jd of the court is conferred by
law, and the same is to be determined from the
allegations of the complaint.
- Jurisdiction of the court does not depend on the
allegations in the answer, not even based on the
evidences presented in trial, nor stipulation of
parties.
- EXC: When the defense of defendant,
particularly in ejectment cases, is based on
agricultural tenancy.
o If defendant in an ejectment case raises
the affirmative defense that he is a
tenant of the plaintiff, if the court finds
sufficient basis on the allegations of the
defendant that indeed, he is an
agricultural tenant, the court cannot
acquire jd over the case because the
proper agency who has jd over the case
is the DARAB.
o But if the answer of the defendant would
raise agricultural tenancy, the court
could not automatically dismiss the case
for lack of jd.
 The court has to conduct a
hearing and evaluate or
determine whether there is
really truth to the allegations of
the agricultural tenancy.
o SC: A court does not lose jurisdiction
over an ejectment suit by the simple
expedient of a party raising as a defense
therein the alleged existence of a
tenancy relationship between the parties.
The court continues to have the
authority to hear and evaluate the
evidence, precisely to determine
whether or not it has jurisdiction, and, if,
after hearing, tenancy is shown to exist,
it shall dismiss the case for lack of
jurisdiction
 Ofilada vs Andal (G.R. No.
192270; Jan26, 2015)
Section 4. Pleadings allowed.
Only pleadings allowed in ejectment cases:
1. Complaint,
2. Answer with counterclaim and cross-claim
3. Answer to the counterclaim or cross-claim
The 3 are the only pleadings allowed. Walay reply.
Walay rejoinder.
Upon the filing of the complaint, the court can motu
proprio dismiss the case on any grounds.
269 | c a v e a t e m p t o r
 - In ordinary procedure, the court cannot motu
proprio dismiss the case on the ground of
improper venue, failure to state COA. There are
only 4 grounds under Sec1R9 that court may
dismiss the case:
o Lack of jd over subject matter
o Res judicata
o Litis pendentia
o Prescription
- In Ejectment, the court can dismiss the case on
any ground.
Section 5. Action on complaint. – The court may, from
an examination of the allegations in the complaint and
such evidence as may be attached thereto, dismiss the
case outright on any of the grounds for the dismissal of a
civil action which are apparent therein. If no ground for
dismissal is found, it shall forthwith issue summons.
If the court finds no ground to dismiss the case, it will
issue summons.
Section 6. Answers. — Within ten (10) days from
service of summons, the defendant shall file his answer
to the complaint and serve a copy thereof on the
plaintiff. Affirmative and negative defenses not pleaded
therein shall be deemed waived, except lack of
jurisdiction over the subject matter. Cross-claims and
compulsory counterclaims not asserted in the answer
shall be considered barred. The answer to counterclaims
or cross-claims shall be served and filed within ten (10)
days from service of the answer in which they are
pleaded.
How many days is given to the defendant to file answer?
- In ejectment cases, defendant is given 10 days to
file answer.
o The 10 days is mandatory.
- In ordinary civil action, 30 days.
Admission of late answer is not allowed.
In ejectment cases, motion for extension to file answer is
a prohibited motion.
- In ordinary civil action, derfendant is allowed to
file motion for extension to file answer once.
o In ejectment cases, no motion to dismiss
is allowed, exc:
 Lack of jd over subject matter
 Non-referral of the case to the
barangay
Section 7. Effect of failure to answer.
Effect if defendant fails to file answer?
- If defendant fails to file answer within 10 days,
the court can render judgment based on the
allegations in the complaint.
o Filing a motion to declare defendant in
default is not allowed.
 Motion to declare defendant in
default is a prohibited motion.
- Unsay buhaton sa court if dili mufile ug answer?
Render decision.
o In ordinary civil action, if the defendant
fails to file his answer, the plaintiff has
to file a motion to declare defendant in
default. Once the defendant is declared
in default, the court has to options:
 Render judgment based on the
allegations in the complaint
 Or require the plaintiff to
present evidence ex parte.
o In an ejectment case, there is no motion
to declare defendant in default, and the
court only has one option – to render
judgment based on the allegations in the
complaint.
 There are times when the Courts
forget to monitor kung nilapas
na ba ang 10 days. Ang lawyer
sa plaintiff ang nakamatngon.
Since lawyers can’t file a
motion to declare defendant in
default, some lawyers file a
motion to render judgment. Di
na prohibited. Mao na nga
maremind ang court nga lapas
na ang period.
 Siguradong daog ang plaintiff?
No.

The defendant is required to file answer.

- He is not allowed to file a motion to dismiss
270 | c a v e a t e m p t o r
Kung pananglitan, imong gititlean nimo ug UD. Or
imong gititlean ug FE, pero wala nimo giallege giuna
pagsulod, aw dismiss for lack of jd.
Section 8.
Preliminary conference; appearance of parties.
If the defendant has filed an answer, the next step would
be preliminary conference.
Preliminary conference is actually pre-trial conference.
- What is the difference? No difference. Pareho ra.
- But in Rule 70, the term used by the rules is
preliminary conference.
o Why? To distinguish ejectment from
ordinary civil action.
During the preliminary conference, what would be taken
up?
- Kadtong itake up during pretrial.
- Under Sec 8, the rules on pre-trial conference
shall apply such as:
o Submission of pre-trial brief
o Compromise agreement
o Stipulation of facts
o Issue/s to be resolved
 The usual and only issue in
ejectment cases is ―who has
better right to possess the
premises‖
 Ownership is not an issue in
ejectment cases. It is only
material or physical possession
(de facto possession)
 Material or physical
possession is a kind of
possession which is not
based on the claim of
ownership.
 Kay ang defendant, for
example ang
nangabang, wala man
nangangkon nga siyay
tag-iya. Tingale, he may
say in his answer nga di
siya angay pahawaon
kay sige siyag bayad or
nituman siyas
conditions.
Sec 9. Record of preliminary conference.
Within 5 days after the termination of the preliminary
conference, the court now shall issue an order reciting
what transpired during the preliminary conference.
- Whether there was compromise agreement
- What are the issues
- Etc.
The order of the court reciting what transpired in the
preliminary conference shall be reduced to writing and
the copies of the preliminary order shall be sent to the
parties.
Section 10. Submission of affidavits and position
papers.
Wihtin 10 days from the receipt what prescribed, the
parties are required to submit position papers.
- In ejectment cases, there is no presentation of
evidence. Dili mo kakita nga naay witness nga
tawgon sa witness stand nga idirect examine,
cross examine.
- Ang mga parties pasubmiton ra ug position
papers.
o Ang kanang position paper mao na ang
summary sa imong arguments, sa imong
evidences ug sa mga balod nga imong
gisaligan
 If you are the plaintiff, imong
istate nganung ikay padag-on.
You will summarize your
evidences, ang mga balaod nga
imong gisaligan.
 If defendant ka, istate nganung
dli ka pahawaon. Imong istate
ang imong evidences and laws
nga imong gisaligan.
o For example, you are the defendant. If
nagbayad ka ug rents, then kadtong
receipts. If wala receipts? Affidavit sa
nagbayad, imong iattach sa position
paper.
o Kung ikay plaintiff, imong iattach ang
documents, affidavits, demand to vacate,
your basis of ownership (title, tax dec)
When shall position papers be submitted? W/in 10 days
from receipt of copy of preliminary conference order.
271 | c a v e a t e m p t o r
Preliminary conference order is very important. 3. Motion for new trial, or for reconsideration of a
- The 10 day period to submit position paper shall judgment, or for reopening of trial;
start to run after the parties would receive a copy o If nakadawat naka ug decision, what is
of the preliminary conference order. your remedy? MR or MNT is not a
o The parties, after receipt of the remedy. File appeal.
preliminary conference order, have to  What should you do about the
submit their position paper within 10 adverse decision? File appeal.
days therefrom.  You cannot file MR or MNT.
 What happens if you
Section 11. file MR or MNT kay
Period for rendition of judgment. wala ka naminaw?
Panitan ka sa imong
When the parties have submitted their position papers, client. Mawagtangan
within 30 days from such submission, the court has to siyag balay. Mapildi.
render decision.  Filing of MR would not
stop the reglementary
Section 12. Referral for conciliation. period to file appeal.
The decision will
As a rule, motion to dismiss is prohibited. But there are become final and
2 grounds that could be raised in a motion to dismiss: executory.
- Non-referral of the case to the brgy o ―Of a judgment‖
- Lack of jd over the subject matter  Can you file MR or MNT for
interlocutory period? Yes. It is
Under Sec 12, the case shall be dismissed if it is not not prohibited.
referred to the barangay. 4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
Section 13. Prohibited pleadings and motions. affidavits or any other paper;
o Filing a motion for extension will not
Rule 15 of the Civil Procedure, ang uban ato gipang- stop the running of 10-day period to file
adopt in this section. 6. Memoranda;
- Under R15, there are 3 kinds of motions – 7. Petition for certiorari, mandamus, or prohibition
litigious, non-litigious and prohibited. against any interlocutory order issued by the
court;
The following petitions, motions, or pleadings shall not o MR for interlocutory order is allowed.
be allowed: But in petition for CPM, not allowed.
1. Motion to dismiss the complaint except on the 8. Motion to declare the defendant in default;
ground of lack of jurisdiction over the subject 9. Dilatory motions for postponement;
matter, or failure to comply with section 12; 10. Reply;
o Non-referral of the case to the barangay 11. Third-party complaints;
is a ground for MD 12. Interventions.
 But remember: If not raised in
the motion to dismiss or in the The rule on Summary procedure is applicable only in the
answer, the same shall be MTC (or first level courts)
considered waived. - Once it will be appealed in RTC, the rule will
 Non-referral of the case to the not apply.
barangay (Katarungang o After appeal in the RTC, pwede na ang
Pambarangay) is not MR.
jurisdictional. - The rule on summary procedure does not apply
2. Motion for a bill of particulars; in the RTC
272 | c a v e a t e m p t o r
 o See: Jakihaca vs Aquino (GR 83982;
Jan 12, 1990)
As discussed, the issue involved in ejectment cases is
possession.
- Kung ang nangilog ug yuta, mangangkon nga
tag-iya. Unya mufile siya ug recovery of
ownership. Nya naa nama’y FE gifile against
him. Would the case for recovery of ownership
be barred by litis pendentia because an ejectment
case has been filed involving the same property
and involving the same parties?
o Ejectment will not create res judicata
or litis pendentia if there is a separate
action/case filed involving recovery of
ownership, involving accion publiciana,
involving quieting of title, involving
specific performance, involving the
same property, etc.
o See: Hilario vs CA (Aug 7, 1996)
 No litis pendentia, no res
judicata.
 The issue involved in
ejectment case is only material
or physical possession (de
facto ownership)
Section 15. Preliminary injunction.
- The plaintiff may pray for the issuance of
preliminary injunction
- The court may grant prliminiary injunction, in
accordance with the provisions of R58 thereof,
to prevent the defendant from committing
further acts of dispossession against the plaintiff.
Section 16. Resolving defense of ownership.
When the defendant raises the defense of ownership in
his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the
issue of ownership shall be resolved only to determine
the issue of possession.
As discussed, in an ejectment case, the only issue to be
resolved is possession.
- However, if the defendant would raise the issue
of ownership, the court may temporarily resolve
the issue of ownership just for the purpose of
determining who has the better right to possess
the property.
o For example, P is actually occupying the
property. Unya, tua man siya nagpuyo
sa siyudad. Here comes D, claiming
ownership over the property kay he
inherited the land from his paretns.
Basis of P’s claim is that napalit ang
yuta gikan sa papa ni D.
 Forcible entry was filed by P
against D.
 D says he is the owner of the
property, and that he has the
right to possess the property
because he has inherited the
land from his parents.
 There is now an ejectment case
– P vs D.
o To determine who between the parties
has the better right to possess, the court
may provisionally rule on the ownership
in order to determine as to who between
the parties has the better right to
possess. Magpakita silas ilang
evidences.
 But the ruling of the court as to
ownership is not final. It is
merely temporary.
 So one of the parties may file a
case for quieting of title, or
recovery of ownership, in order
to resolve with finality the issue
of ownership.
Section 17. Judgment.
In an ejectment case, if the plaintiff wins, there are only
2 damages that the court may award:
- Actual damages (in the form of unpaid rentals/
rental in arrears)
- Attorney’s fees
If plaintiff loses, the court cannot award unpaid rentals
to the defendant. If defendant wins, the court may now
award moral damages.
- Moral damages may be awarded as
counterclaim, and not as damages for unlawful
occupation of the property.
- See: Agustin vs Bacalan (March 18, 1985)
273 | c a v e a t e m p t o r
Section 18. Judgment conclusive only on
possession; not conclusive in actions involving title or
ownership.
The only issue to be resolved is material or physical
possession (de facto possession)
- Opposite of de facto possession?
o De jure possession. This is possession
based on the claim of ownership.
Section 19. Immediate execution of judgment; how to
stay same
- Very important.
SC: In summary procedure, the decision of the court is
immediately executory, including ejectment cases.
- However, if the defendant (1) would file an
appeal (within 15 days), (2) would deposit
supersedeas bond (in the amt equal to the
amount of unpaid rentals awarded by the court),
or (3) while the case is pending appeal in the
RTC, the defendant would make periodic
payments of the rentals in the MTC, the decision
shall be stayed.
o These are what the defendants should do
to stay the decision of the court
If the court did not award unpaid rentals because the stay
was by mere tolerance. Is there a need of defendant to
post supersedeas bond?
- No need.
- Supersedeas bond is required only if the court
awarded unpaid rentals.
While the case is pending in the RTC, there is a need for
defendant to make periodic deposits.
- Kung every month ilang sabot, every month,
magdeposit siya sa RTC. Adto siya mag-abang
sa RTC kung monthly ang sabot.
- If dili buhaton, bisan pag nakafile ug appeal or
nakapost ug supersedeas bond, writ of execution
pending appeal shall be issued by the RTC.
o Remember: Ang supersedeas bond para
rato sa mga unpaid rentals.
o For incoming rentals, adto ka
magdeposit sa RTC.
 Di gani nimo buhaton, writ of
execution pending appeal shall
be issued by the RTC.
See 3rd par:
- After the RTC shall have decided the case, for
example RTC would affirm the decision of the
MTC, the decision of the RTC is immediately
executory.
o It cannot be stopped by a supersedeas
bond anymore. (See Sec 21)
o Section 21. Immediate execution on
appeal to Court of Appeals or Supreme
Court. — The judgment of the Regional
Trial Court against the defendant shall
be immediately executory, without
prejudice to a further appeal that may be
taken therefrom.
If RTC decision is still adverse (giaffirm sa RTC ang
decision sa MTC), what is the remedy of the defendant?
- He may file a petition for review with the CA.
- In the mean time, he has to vacate the premises.
Because the decision of the RTC is immediately
executory, without prejudice to further appeal.
- How to stop?
o In the petition for review, the defendant
has to include in his petition the prayer
for the issuance of TRO and preliminary
injunction.
o If the CA would issue TRO and writ of
preliminary injunction, then the decision
of the RTC would be stayed.
 Otherwise, if there is no TRO,
there is no preliminary
injunction, then the decision
would be executed, without
prejudice to further appeal.
Kung mareverse ang decision sa RTC sa CA? Maunsa
naman to nga giguba naman ang balay?
- Plaintiff will pay.
The decision of the RTC would be immediately
executory but not final, if the defendant would file
appeal in the higher courts.
- SC: City of Naga vs Asuncion (557 SCRA 528
GR no 174042 July 9, 2008)
274 | c a v e a t e m p t o r
 RULE 71
Contempt
Classifications:
1. Direct Contempt or Indirect Contempt
o The more popular classification
2. Criminal Contempt or Civil Contempt
Criminal Contempt
- If the purpose of which is to vindicate public
authority
Civil Contempt
- If the purpose is to protect civil rights and
remedies of litigants
- Remember issuance of TRO?
o Court issues a TRO, pero gisupak sa
defendant. It could be a civil contempt.
Section 1. Direct contempt punished summarily.
A person guilty of misbehavior in the presence of or so
near a court as to obstruct or interrupt the proceedings
before the same, including disrespect toward the court,
offensive personalities toward others, or refusal to be
sworn or to answer as a witness, or to subscribe an
affidavit or deposition when lawfully required to do so,
may be summarily adjudged in contempt by such court
and punished by a fine not exceeding two thousand
pesos or imprisonment not exceeding ten (10) days, or
both, if it be a Regional Trial Court or a court of
equivalent or higher rank, or by a fine not exceeding two
hundred pesos or imprisonment not exceeding one (1)
day, or both, if it be a lower court.
Keywords:
- In the presence of
- So near a court
o ―Court‖ is not the building. It is the
judge
- As to obstruct or interrupt proceedings
―any misbehavior‖
- Naghearing. Imong gihagit ug sumbagay imong
kontra nga abogado, in the presence of the
judge. This is contumacious.
o Labi najug ang judge imong gihagit ug
sumbagay.
Behaviors? Including:
- disrespect toward the court,
- offensive personalities toward others,
- or refusal to be sworn or to answer as a witness,
or to subscribe an affidavit or deposition when
lawfully required to do so
TN: Dili ra abogado ang pwede icontempt.
- Pwede sad witness
- Any person inside the court
TN: Someone may be declared in contempt, even if
outside the court.
- Example, naghearing. Sa gawas sa court, naay
sigeg busina, saba kaayo. Direct contempt.
o Diri sa contempt, bunalan dayn ka. Di
ka ingnan daan unsa imong sala.
o ―may be summarily adjudged in
contempt by such court and punished by
a fine not exceeding two thousand pesos
or imprisonment not exceeding ten (10)
days, or both, if it be a Regional Trial
Court or a court of equivalent or higher
rank, or by a fine not exceeding two
hundred pesos or imprisonment not
exceeding one (1) day, or both, if it be a
lower court.‖
 ―summarily adjudged‖
 Dritso rag order ang
court
 ―While this court is conducting
trial, Atty. Soandso challenged
the public prosecutor to a
fistfight. The court thereby
sights him for direct contempt.‖
Contempt of court?
- Disobedience of the court by acting in
opposition to his authority, justice and dignity
o Sy vs NLRC (Aug 25, 2005)
Remember Certification Against Forum Shopping?
- If the forum shopping is willful and deliberate,
the same would constitute direct contempt
o Sec5, R7.
There could also be direct contempt by the use of
intemperate words, by the use of discourteous language.
275 | c a v e a t e m p t o r
 - Kana bitawng manghambog ka nga mas
maynglaki paka sa judge, nya insultohon nimo
ang judge, that’s dangerous. That may constitute
direct contempt.
Kung pananglitan, didto sa motion. Wala nimo gisulti
orally. Gibutang nimos imong motion that you were very
much discontented with the decision of the court kay
nag-expect najud ka madaog. Naglagot ka, you filed an
MR and imong gibutang sa MR mga discourteous
language. Libelous words. You alleged that the judge
was bribed, dishonest.
- Aside from the fact that it would constitute
direct contempt, if a motion or pleading would
contain intemperate or discourteous words or
contumacious words, if such pleading or motion
is filed in the same court, that would constitute
direct contempt.
o If it is filed in another court, for example
on appeal, that would constitute indirect
contempt.
TN: You can disagree with the ruling of the court.
- Sometimes, we expect nga daog ta, pero pildi ta.
Kay lahi atong paglantaw.
- But TN we have several remedies. Precisely
there is MR. MNT. Appeal. Certiorari. Avail of
these remedies.
o You can disagree with the decision of
the court. But, you have to respect his
decision.
Remember: in petition for certiorari, ang masubject sa
petition for certiorari is grave abuse of discretion.
- The judge can abuse its discretion.
- What is prohibited is grave abuse of discretion.
Section 2. Remedy therefrom.
Remedy of direct contempt?
- No appeal.
- The remedy is petition for certiorari and/or
prohibition.
The person cited for direct contempt can post bond.
- If ang penalty is imprisonment, the court has to
fix the bail bond just in case the respondent
would file a petition for certiorari or prohibition.
Let’s jump to Sec 4.
Indirect Contempt
Section 4. How proceedings commenced.
How to initiate an indirect contempt?
1. Motu proprio
o On its own.
o The court may issue a show cause order.
o For example, the witness has been
issued a subpoena to appear in court but
failed to appear without any reason.
 The court may require him to
show cause or be required to
explain why he should not be
cited in contempt for delaying
the proceedings.
2. By filing a petition for indirect contempt
o For example, court issues TRO against
defendant, but defendant disobeyed it.
The plaintiff may file a verified petition
for indirect contempt.
 TN: It is not a motion. It is a
separate petition.
 You will not file the
petition in the same
case.
 File in a separate action
 The petition shall comply with
all the requirements of initiatory
pleading – CAFS, verification,
etc.
o There are still lawyers who file a motion
to declare defendant in contempt. That is
wrong.
 It should be in the form of a
petition, a separate independent
action.
 It must be verified.
Considering that indirect contempt is an offshoot of the
main case, the court, if naraffle, the sala or branch where
the indirect contempt case is filed may be consolidated
with the court handling the main case (Sec 4)
Grounds for indirect contempt? (Sec 3)
276 | c a v e a t e m p t o r
Section 3. Indirect contempt to be punished after
charge and hearing.
After a charge in writing has been filed, and an
opportunity given to the respondent to comment thereon
within such period as may be fixed by the court and to
be heard by himself or counsel, a person guilty of any of
the following acts may be punished for indirect
contempt;
Diba 2 man to kaklase? First, motu proprio. If it is
initiated by any of the parties, separate petition for
indirect contempt. Unsa may sunod ana?
- If it ?? (di madungog) then the respondent has to
file his comment, and not an answer.
o Lahi ni siya. Mao bitawng special civil
action kay naay iyang own procedure.
o So, not an answer, but a comment.
- The same with indirect contempt.
o Comment ang i-issue, not summons.
After the filing of the comment, the court may conduct
hearing to determine whether the petition is meritorious.
TN: No default here.
- The court does not declare the respondent in a
contempt charge in default since the proceedings
partake the nature of prosecution (criminal case).
Grounds for indirect contempt?1
(a) Misbehavior of an officer of a court in the
performance of his official duties or in his
official transactions;
o Officer of the court?
 Trabahante sa court
 Or the lawyer himself
(b) Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including
the act of a person who, after being dispossessed
or ejected from any real property by the
judgment or process of any court of competent
jurisdiction, enters or attempts or induces
another to enter into or upon such real property,
for the purpose of executing acts of ownership
or possession, or in any manner disturbs the
possession given to the person adjudged to be
entitled thereto;
o ―order‖ or ―writ‖ is the TRO
o ―judgment‖ is the judgment in the
petition for Certiorari, prohibition or
mandamus.
 Dili kadtong judgment sa sum
of money, dili sa judgment sa
specific performance.
 Kadto rang judgment sa petition
for CPM.
o Disobedience or resistance of a lawful
writ of execution or writ of demolition
cannot be a ground for contempt. A writ
of execution or a writ of demolition is
addressed to the sheriff.
o Pero if gipapahawa na siya sa sheriff
pero nibalik after 2 months, mao nanay
makapacontempt.
 ―who, after being dispossessed
or ejected from any real
property enters or attempts or
induces another to enter into or
upon such real property‖
(c) Any abuse of or any unlawful interference with
the processes or proceedings of a court not
constituting direct contempt under section 1 of
this Rule;
o Example, court keeps on asking for
postponement without valid grounds.
That could be a ground for contempt.
(d) Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade the
administration of justice;
o Kanang magcomment-comment ka ug
pending case. Sub judice.
o Commentarista ka, for example. Mag-
comment2 ka. Pending case. Ground for
indirect contempt.
o Or harasson nimo ang witness.
Hadlokon nimo ang witness. Paliton
nimo ang witness sa plaintiff. Indirect
contempt.
(e) Assuming to be an attorney or an officer of a
court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
o The court may order a warrant of arrest
(bench warrant)
(g) The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of
an order or process of a court held by him.
277 | c a v e a t e m p t o r
Last par:
Nothing in this section shall be so construed as to
prevent the court from issuing process to bring the
respondent into court, or from holding him in custody
pending such proceedings.
- The court can issue warrant of arrest, and that is
what we call bench warrant.
Atong nahibaw-an, accused ra ang dakpon. Dili diay.
- Kanang tawo nga musupak sa order sa court, dili
mucomply sa order sa court such as subpoena,
can be placed in jail.
Section 5. Where charge to be filed.
There are 2 ways of initiating indirect contempt.
- If it is initiated through a petition, where should
the petition for indirect contempt be filed?
o As a rule, the same court.
o If it is in the MTC, MTC. If it is in the
RTC, RTC.
o ―The same court,‖ meaning kanang sa
multiple sala court. Dili anang same
branch nga naghandle sa case. Exc if
single sala.
 Kay ang petition for indirect
contempt is a separate and
independent action.
- If a contemptuous act is committed against a
first level court, the petitioner has the option to
file the petition in the first level court or in the
RTC. (Sec 5)
Igot vs CA (Aug 17, 2004):
- SC: Section 4, Rule 71 of the Rules of Court
provides, in effect, that a charge for indirect
contempt must be filed with the court
contemned.
o This is in multiple sala courts.
- Although this provision is permissive in nature,
in the event of concurrent jurisdiction over cases
of contempt of court, it would be a good practice
to acknowledge the preferential right of the court
against which the act of contempt was
committed to try and punish the guilty party.
o Diba as discussed, the petition is
separate. Pwede iconsolidate and ibalhin
sa court whose judgment and order was
disobeyed.
Section 6. Hearing; release on bail.
If the court has issued a warrant of arrest against the
respondent, he can be released on bail.
- Warrant of arrest issued to a disobedient party in
contempt? Bench warrant
Section 7. Punishment for indirect contempt.
- Penalty for indirect contempt is higher or
heavier than in direct.
Section 8. Imprisonment until order obeyed.
When the contempt consists in the refusal or omission to
do an act which is in the power of the respondent to
perform, he may be imprisoned by order of the court
concerned until he performs it.
- For example, if the respondent refused to testify,
he can be put to jail indefinitely until he will
agree to testify.
o The key to the door of the jail where he
is detained is in his hands.
o Gusto ka makagawas dayon? Testify.
Section 9. Proceeding when party released on bail fails
to answer.
If the respondent who is released on bail again fails to
testify, he can be again placed back in jail.
Section 11. Review of judgment or final order; bond
for stay.
This is about the remedy from the adverse judgment in
indirect contempt.
In direct contempt, no appeal. Remedy is petition for
CPM.
- But in indirect contempt, there is an appeal.
o Appeal to the higher court is a remedy.
o If cited for contempt in MTC, he can
appeal in the RTC.
o If cited for contempt by RTC, he can
appeal in CA.
- How? By mere notice of appeal.
278 | c a v e a t e m p t o r
The nature of direct contempt is similar to that of a
criminal case.
- Such that, if the accused is acquitted, there is no
appeal. The adverse party or petitioner cannot
file an appeal when the respondent is acquitted.
- Although, there is no promulgation of the
decision.

But, TN: There is this case nga ang nature is civil

contempt, pero the court allowed appeal.
- See: Ceniza vs Wistehuff (June 16, 2006)
o SC allowed the appeal of a judgment of
the court dismissing the petition.

Section 12. Contempt against quasi-judicial entities.

This rule shall apply to contempt committed against

persons, entities, bodies or agencies exercising quasi-
judicial functions, or shall have suppletory effect to such
rules as they may have adopted pursuant to authority
granted to them by law to punish for contempt.

By the way, if the respondent is charged with indirect

contempt, that is without prejudice to other possible
liabilities, such as for libel.
- PP vs Gudoy (243 SCRA 64)

In the case of Landbank of the Phils vs Listana (G.R.

No. 182758; May 30, 2011; 408 SCRA 328)
- SC:Quasi-judicial agencies that have the power
to cite persons in direct contempt pursuant to
R71 can only do so by initiating in the proper
RTC.
o Meaning, kinahanglan pa sila mufile ug
case sa RTC.
- It is not within their jd and competence to decide
the indirect contempt cases. These matters are
still within the jd of the RTC

279 | c a v e a t e m p t o r
KATARUNGANG PAMBARANGAY
The law in Katarungang Pambarangay is embodied in
RA 7160 (Local Government Code)
Under Sec 399 of the LGC, each brgy is required to
create or organize a ―Lupong Tagapamayapa‖ which
shall compose the punong barangay, as chairman and
ten (10) to twenty (20) members.
- The ―Lupong Tagapamayapa‖ shall be headed
by the Brgy Capt, who shall act as the Lupon
Chairman.
o And, he shall appoint 10-20 members
who are respected members or residents
of the barangay.
- The ―Lupong Tagapamayapa‖ which consists of
10-20 members shall be divided into smaller
groups which is called ―Pangkat ng
Tagapagsundo‖
o Among the 3 members of the pangkat,
they shall choose who shall be the
Pangkat Chairman, Secretary and
Member.
SECTION 408. Subject Matter for Amicable
Settlement; Exception Thereto.
What are the matters/cases that are required to be
referred to the barangay?
- All cases. All disputes.
- What you should memorize here is the
exceptions.
All cases shall be referred to the barangay, as long as the
the parties are residing in the same city or municipality
- Not necessarily the same barangay.
- Kung pananglitan ang complainant taga Lahug.
Ang iyang kontra taga Labangon kay nakautang
niya, wala nibayad. Kinahanglan irefer sa brgy?
o Yes.
o They are residing in the same city, even
if they are not residing in the same
barangay.
- What about those cases cognizable by the RTC?
Are they required to be referred to the brgy?
o Yes.
o All cases.
Exceptions:
(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;
o Maestra, namunal sa student. Niresult ug
slight physical injuries. Kinahanglan
iagi sa brgy? No. Crime committed was
in the performance of his duties.
(c) Offenses punishable by imprisonment exceeding
one (1) year or a fine exceeding Five thousand
pesos (P5,000.00);
o More than 1 yr imprisonment or 5k fine.
o So, if ang crime 1yr or less, and the
parties are living in the same city or
municipality, kinahanglan mag-agi ug
brgy before ifile sa court.
o So, for example physical injuries. What
are those crimes nga wala kaabot ug
1yr? Up to less serious physical injuries.
o Kung pananglitan, murder na. Or
homicide. Mag-agi pag brgy?
 Dili na.
 It’s more than 1 yr.
(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;
o For example, partition. Ang yuta naa sa
Cebu City, ang usa tua sa Mandaue. No
need to refer to the brgy.
(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;
o Ganina, same city man or municipality.
So kung different, dili na muapply ang
brgy.
(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.
280 | c a v e a t e m p t o r
Other exceptions:
Section 412 (b) Where Parties May Go Directly to
Court.
- The parties may go directly to court in the
following instances:
o (1) Where the accused is under
detention;
 For example, slight physical
injuries tuod ang crime, pero
napriso man ang accused kay
nadakpan dayon sa tanod. There
is no need to refer the case to
the brgy
o (2) Where a person has otherwise been
deprived of personal liberty calling for
habeas corpus proceedings;
 Habeas corpus proceedings
need not be referred to the brgy.
o (3) Where actions are coupled with
provisional remedies such as
preliminary injunction, attachment,
delivery of personal property and
support pendente lite; and
 Remember preliminary
attachment, TRO or writ of
preliminary injunction?
 But it must be done in good
faith.
 If done in order to escape
compliance of the law, then the
case could be dismissed.
 Naa man guy ubang
abogado magminaldito.
Aron di maagig brgy,
magbuhat silag cases
and butangan ug prayer
for issuance of TRO
and writ of preliminary
injunction.
o (4) Where the action may otherwise be
barred by the statute of limitations.
 Kanang hapit na muprescribe.
There is no need to refer the
case to the brgy.
Another exception (not in the rules)
- Labor dispute
o Illegal dismissal need not go through
Katarungang pambarangay
 Montuya vs Escayo (171 SCRA
442)
- Agrarian Dispute
o Comprehensive Agrarian Reform Law
(Sec 4)
- When one of the parties is a juridical person
o For example, collection for a sum of
money filed by the bank. No need to
pass through the katarungang barangay.
o Or if the defendant is a juridical person.
TN: Even criminal cases mag-agi ug barangay, basta ang
penalty not more than 1 yr.
- As discussed, criminal case may not be
compromised. May not be settled.
- But under the Katarungang Pambarangay,
allowed. Basta ginagmay nga cases.’
o Pananglitan, slight physical injuries.
Nagkasinabot sa brgy. Nagkasinabot
sila. Bayran ra siya. Pwede pa ba
mafilean ug case in court ang accused?
 No
 The compromise agreement in
the barangay has the effect of a
final judgment of a court.
 Dili ni pwede. It would
create a double
jeopardy.
o If it is a civil case. Nangutang, muingon
nga bayran ra. Pwede pa ba makafile
ang plaintiff sa court?
 No more.
 It would create res judicata. The
compromise agreement among
which by the parties in a
barangay has the effect of final
judgment in the court, either in
criminal case or in civil case.
SECTION 409. Venue.
Where should the case be filed?
- If the parties are residing in different baragays,
the case should be filed in the baranggay where
the respondent is residing.
o Plaintiff has no option.
- If it is a real action, meaning it involves real
property, it shall be filed in the Brgy where the
real property is located.
281 | c a v e a t e m p t o r
SECTION 410. Procedure for Amicable Settlement.
It would start by a filing of a complaint
- The complaint could be done orally or in writing
to the Lupon Chairman.
- The barangay may require filing fee.
Who will first mediate?
- The brgy captain will first mediate the parties.
- He will summon summons or subpoena to the
parties within the next working day.
If the Lupon chairman fails to settle the parties, the
Pangkat ng Tagapagsundo should be constituted.
- But the constitution of the Pangkat ng
Tagapagsundo would be unnecessary if none of
the parties appeared before the lupon chairman
on the date of hearing.
o Kung pananglitan ang plaintiff wala
nitunga, idismiss.
o If ang respondent ang wala nitunga, the
Lupon Chairman can immediately issue
a Certification to File Action.
o Aside from that, if it is the plaintiff who
fails to appear, he cannot raise his
counterclaim in court.
Effect if di mutunga:
- If plaintiff, dismiss
- If respondent:
o (1) A Certification to File Action may
be issued
o (2) He cannot raise counterclaim
o He can be cited indirect contempt
 But it is not the brgy captain
who will cite him in contempt.
 A petition shall be filed
in the court.
 As discussed, quasi-
judicial bodies cannot
declare contempt.
Under 410 (C) - Suspension of prescriptive period of
offenses, the filing of the case with the brgy, with the
office of the brgy captain, shall suspend the running of
the prescriptive period for 60 days.
- Sa ato pa, the proceedings must be terminated
within 60 days because the period of suspension
of the prescriptive period would only be 60 days.
o So kung ejectment, 1 yr ra raba ang
prescriptive period, dalion jud na. Kay
mudagan raba dayon after the lapse of
60 days.
Under 410 (D) - Issuance of summons; hearing; grounds
for disqualification , the parties are required to
personally appear before the brgy.
- Lawyers are not allowed to appear, exc when the
lawyer himself is the complainant or the
respondent.
- Kung ang kihante judge. Need pa ?? brgy
captain, or idritso ra ngadto sa court?
o No exception.
o If kihante judge, muappear ka didto sa
barangay. Walay exception.
SECTION 411. Form of settlement.
If ever the parties will arrive at a settlement, the
settlement shall be reduced into writing, and should
be signed by them, attested to the Lupon Chairman (if
settled before the Lupon Chairman), or the Pangkat
Chairman (if they were settled before the pangkat)
SECTION 412. Conciliation.
(a) Pre-condition to Filing of Complaint in Court.
No case shall be filed.
- If a case is required to be referred to in the
barangay, the same should be dismissed
without prejudice if the same has not referred
to the brgy.
- Although non-referral of the case to Brgy is a
ground for dismissal, if it is a civil case, the
same has to be raised in the answer as an
affirmative defense.
o Remember affirmative defense of
condition precedent? One of which is
non-referral before the barangay.
 It must be raised as an
affirmative defense in the
answer. If not, waived.
 If it is not raised in the
answer as an affirmative
defense, and the same
was raised only, for
example during the trial
282 | c a v e a t e m p t o r
 or pretrial, considered
waived.
- If it is a criminal case, the non-referral of the
case before the barangay shall be raised before
arraignment, such as in a motion to quash or in a
motion to dismiss. Before arraignment.
o If not raised before arraignment, for
example the accused was arraigned and
he raised the issue during pre-trail, or
much worse only during the trial,
waived.
SECTION 414. Proceedings Open to the
Public; Exception.
All proceedings for settlement in the barangay shall be
public and informal
SECTION 416. Effect of Amicable Settlement and
Arbitration Award.
What is the effect of amicable settlement or compromise
agreement reached by the parties in the barangay?
- It has the force and effect of a final judgment
of a court if not repudiated within the period of
10 days.
o So if nakapirma ka ug kasabutan sa
barangay, but within 10 days the same
was repudiated or you asked for its
cancellation because, for example, your
consent was obtained by fraud,
intimidation, then it has no effect. It
would be invalidated.
o Or a petition for ?counterclaim? (di
madungog) is filed in court.
o But, if there is no repudiation, or
petition filed in court within the period
of 10 days, it has the effect of a final
judgment in court, either be it criminal
case or civil case.
 If it is a civil case, collection of
sum of money, for example, or
ejectment, no more case can be
filed in court. If there is, it
would be barred by res judicata.
 If it is a criminal case, it could
be dismissed on the ground of
double jeopardy
SECTION 417. Execution.
If it has the force and effect of a final judgment of a
court, then how can it be executed? There are two ways
– administrative and judicial
- (1) Administrative.
o The amicable settlement or arbitration
award can be enforced by the Lupon
Chairman
 The Lupon chairman would act
as a sheriff
o Within the period of 6 months from the
date the obligation becomes due.
 Not from the date of signing but
from the date obligation
becomes due.
 If the obligation of the
respondent would start from the
very day that they signed the
amicable settlement then the
reckoning date for the counting
of the 6 month period would be
from that date of the signing.
 Pananglitan, ilang sabot kay
ejectment. Ingon ang respondent
―tagae kog 2months. Kay
mangita kog kaabangan.
 So the counting of the
6-month period would
start from the lapse of
the 2 months given to
the respondent.
 So again, the counting of the 6-
month period would start from
the date the obligation of the
respondent or one of the parties
would be due and demandable.
o Kinsay mu-execute? Kinsay muact sa
trabaho sa sheriff?
 Lupon Chairman or Brgy
Captain.
o Pananglitan, ejectment. Gitagaan ug 2
months. Wala nituman. Then the brgy
captain can go to the house rented by the
respondent, nya pugson siyag papahawa.
Kung dili niya kaya, then he can ask the
assistance of the police.
 Pero pila kaha ka bryg captain
ang kahibaw ani nga
283 | c a v e a t e m p t o r
 katungdanan nga pwede diay o Unsa man na nga case? Sinumbagay.
sila muact as sheriff? Utang nga 100, 200 ra. Mao ranay iadto
o Pananglitan utang. Musaad mubayad nimos court? Kansi kas plite.
within 2 months. Pag-abot sa 2 months,
wala nakabayad. Unsay buhaton? See: Sebastian vs Lagmay (Apr 22, 2015)
 Unsay buhaton sa sheriff? Iyang - For the enforcement of the amicable settlement
adtoon. Pabayron. before the barangay.
 Ug di makabayad? Manguhag - There are 2 modes – administrative and judicial
mga butang, i-auction. Levy on
execution. See: Vidal vs Esqueta (Dec 10, 2003)
o Suppose, the 6months period has - As to the counting of the 6-month period.
lapsed?
 The execution of the amicable See: Urbano vs IAC (157 SCRA 1)
settlement would be through - Double jeopardy
judicial
- (2) Judicial See: Miguel vs Montanez (January 25, 2012)
o An action, a case, for the enforcement of - Res judicata
the amicable settlment should be filed in
court.
 TN: Not motion for execution.
What will be filed is a case.
o For example, ejectment. Naay
nangabang, wala nakaabang.
Papahawaon, wala nihawa. Girefer sa
barangay, nagsabot nga mupahawa in 2
months. Wala nituman, nilapas na ang 6
months. Remedy of the aggrieved party
(lessor)? What will he file in court?
 Not ejectment.
 He must file a complaint for
enforcement of the amicable
settlement.
 COA is enforcement of
the amiable settlement,
not ejectment
o Collection for sum of money. Wala
mubayad. Nilapas na ug 6 months.
Outside na sa jd of the barangay.
 When he files a case, not
collection sum of money. Dapat,
enforcement of amicable
settlement.
 So iattach na didto sa complaint
ang amicable settlement.

Nganu man ni ang law nga hapit tanan cases irequire nga
mag-atubang sa barangay?
- Aron dili magpunsisok sa courts. Just imagine, if
masettle, no need na muadto sa court.
284 | c a v e a t e m p t o r
 REVISED RULE ON SUMMARY PROCEDURE
SECTION 1. Scope. — This rule shall govern
the summary procedure in the Metropolitan Trial Courts,
the Municipal Trial Courts in Cities, the Municipal Trial
Courts, and the Municipal Circuit Trial Courts in the
following cases falling within their jurisdiction:
Parehos rani sa ejectment.
- Kay ang rules sa ejectment under R70, diri
gikopya.
RRSP is applicable to criminal and civil cases.
In what courts shall this rule be applicable?
- RRSP is only applicable to first level courts.
o Once the case is appealed to the RTC or
to higher courts, this rule will not apply
 Kadtong prohibited motions,
dili nato muapply sa RTC
A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer,
irrespective of the amount of damages or unpaid
rentals sought to be recovered. Where attorney's
fees are awarded, the same shall not exceed
twenty thousand pesos (P20,000.00).
- Wala nani. Naa nani sa Rule 70
(2) All other cases, except probate proceedings,
where the total amount of the plaintiff's claim
does not exceed one hundred thousand pesos
(P100,000.00) or, two hundred thousand pesos
(P200,000.00) in Metropolitan Manila, exclusive
of interest and costs.
- Purely money claims, adto nani sa Small Claims
Cases.
o Under the present rule, 100k and 200k
mani. Kung purely money claims
(contract of loan, contract of lease), adto
na sa RRSCC.
 Unya, ang SCC, gipatas-an
nasad run.
 300k 400k na.
- Pero if mag-involve na ug torts, no longer purely
money claims.
o Kung nikiha siya ug damages based on
torts, or based on breach of contract
(aside from Contract of Loan, Contract
of Lease), kung demand is 100k or
200k, Summary Procedure.
- Again, pwede summary procedure kung ang
claim is damages pero dili purely money claims.
o 100k outside Mnl, 200k if Mnl
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
o Pwede mulapas 6 months, pero
summary procedure siya
(4) BP 22 cases
o Even if the ?? is 1 yr, summary
procedure.
(5) All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding six months, or a
fine not exceeding (P1,000.00), or both,
irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability
arising therefrom: Provided, however, that in
offenses involving damage to property through
criminal negligence, this Rule shall govern
where the imposable fine does not exceed ten
thousand pesos (P10,000.00).
o TN: Ayaw mog kalibog atong
Katarungang Pambarangay ha. 1 yr man
to ganina.
 Sa summary procedure, 6
months.
 Or a fine not exceeding 1k
o ―Regardless of the amount of civil
liability‖
 Basis: penalty
With regards to damage to property through reckless
imprudence, it would be under RRSP if the damage is
not more than 10k.
Sec 2. Determination of Applicability
Upon the filing of the case in court, whether criminal or
civil, the court has to issue an order indicating that the
case is governed by the Rule on Summary Procedure.
- Inig file jud ana niya.
285 | c a v e a t e m p t o r
 o For example, ejectment case. Or
criminal case wherein the penalty is
6months or less. Or ordinance. I-state na
nga under RRSP.
CIVIL CASES
- Dali rani masabtan kay parehos rani sa
Ejectment.
o Ang kanang ejectment, gikan na sa
Summary Procedure.
Sec 3. Pleadings
There are only 3 pleadings allowed:
1. Complaint
2. Answer with Compulsory Counterclaim or
Cross-claim
3. Answer to the Cross Claim or Counterclaim
All such 3 proceedings must be verified
- The complaint, the answer, must be verified.
o But verification is not a jurisdictional
defect.
o The court may allow correction or
amendment.
In civil cases, upon the filing of the complaint, the court
may immediately dismiss the case on any ground
- If the court does not find any ground, then the
court shall issue summons.
Period to file answer?
- 10 days.
- Admission of late answer is not allowed.
- See:
o Don Tino Realty vs Florentino (314
SCRA 197)
o Luna vs Mirafuente (Sept 26, 2005)
Motion for extension of time is not allowed.
SECTION 6. Effect of Failure to Answer.
If defendant fails to file an answer, the plaintiff cannot
file a motion to declare the defendant in default.
- However, the court can immediately render
judgment based on the allegations of the
complaint.
- Unsay ifile sa abogado kay dili sila makafile ug
motin to declare defendant in default?
o File sila ug motion to render judgment.
Submission of late answer is not allowed.
- The failure of the defendant to timely file his
answer and to controvert the claim against him
constitutes his admission or acquiescence to
every allegation stated in the complaint.
- Fairland Knitcraft Corp vs Po (Jan 27, 2016)
SECTION 7. Preliminary Conference; Appearance of
Parties. — Not later than thirty (30) days after the last
answer is filed, a preliminary conference shall be held.
The rules on pre-trial in ordinary cases shall be
applicable to the preliminary conference unless
inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary
conference shall be a cause for the dismissal of his
complaint. The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Section 6 hereof. All
cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall
be entitled to judgment in accordance with Section 6
hereof. This Rule shall not apply where one of two or
more defendants sued under a common cause of action
who had pleaded a common defense shall appear at the
preliminary conference
After filing an answer, there will be preliminary
conference which is similar to pre-trial.
- Failure of plaintiff to appear, the case shall be
dismissed
- Failure of the defendant to appear, the court can
render judgment based on the allegations in the
complaint
o Parehos rag wala nakafile ug answer
- EXC: When there are several defendants and
they are sued under a common cause of action.
o Why? If some of the defendants
appeared but the others did not, the
appearance of some would inure to the
benefit of the non-appearing defendants.
 That is if they are sued under a
common cause of action or if
they have common defense.
286 | c a v e a t e m p t o r
After the preliminary conference, the court will issue an
order reciting what happened during the preliminary
conference, and among others would state the issue.
- The copy of the order shall be given to the
parties and they will be given 10 days to file
their position papers.
- There is no presentation of evidence
o All of the evidences of the parties
(documentary or testimonial) shall be
attached to the position papers.
 What is a testimonial?
 Ang witness iattach
didto? No.
 The judicial affidavits
of the witnesses shall be
attached to the position
papers, including
documentary and object
evidence (mga pictures,
etc)
After the submission of the position papers, the court has
to render decision within 30 days.
CRIMINAL CASES
If it is a criminal case?
- The same.
- Either commenced by a complaint or
information, the court can immediately dismiss
the case if it finds any grounds to dismiss the
same.
o If there is no ground to dismiss the case,
the court shall issue an order requiring
the accused to submit counter-affidavit
TN: In criminal cases governed by the rules on summary
procedure, the court is not allowed to issue warrant of
arrest.
- Instead of a warrant of arrest, the court shall
issue an order directing the accused to submit
counter-affidavit within 10 days.
Submission of late counter-affidavit is not allowed.
- Kung dili siya musubmit ug counter-affidavit, sa
ato pa, he is waiving his right to present
evidence.
o Carriaga vs Anasario (396 SCRA 599)
SECTION 13. Arraignment and Trial.
After the submission of the counter-affidavit, or even if
there is none, the case shall be set for arraignment and
pre-trial.
As discussed, the court will not issue warrant of arrest.
- But, if the accused will not appear in court when
required to do so, the court may issue a warrant
for his arrest.
o Murag bench warrant ba.
o For example, he is required to appear
during arraignment because the
appearance of the accused during
arraignment is mandatory, and despite
notice he failed to appear, the court may
issue warrant for his arrest.
What should be taken up during pre-trial in a criminal
case?
- Just like in ordinary criminal cases:
o Plea bargaining
o Stipulation of facts, issues
o Witnesses
o Etc
During trial, lahi ni sa criminal case and civil case under
RRSP.
- As discussed, no trial in civil cases.
- But here in criminal, naay trial.
o Meaning, there is presentation of
witnesses.
o The witnesses should testify based on
their affidavits.
 They are not allowed to testify
if they have not submitted their
judicial affidavits.
A witness who has submitted his affidavit but fails to
appear in court, his affidavit would not be admissible for
being a hearsay.
- Mutunga jud siya.
A witness is not allowed to testify, unless he has
submitted his affidavit
- Except on rebuttal and surrebuttal.
If a party wishes to submit additional affidavits of
witnesses kay nagdali-dali siyag file sa iyang counter-
287 | c a v e a t e m p t o r
affidavit, he can ask permission from the court during o In fact, non-referral of the case to the
preliminary conference to submit additional affidavits of brgy under the amended rules has to be
witnesses, and the same shall be submitted within 3 raised in the answer as an affirmative
days. defense.
(b) Motion for a bill of particulars;
SECTION 16. Arrest of Accused. (c) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
- No warrant of arrest shall be issued o The only remedy: appeal.
- But if the accused fails to appear when required (d) Petition for relief from judgment;
to do so, he can be arrested. (e) Motion for extension of time to file pleadings,
affidavits or any other paper;
Three instances wherein the presence of the accused is (f) Memoranda;
required in a criminal case: (g) Petition for certiorari, mandamus, or prohibition
- (1) During arraignment against any interlocutory order issued by the
- (2) During trial court;
- (3) During promulgation of the decision (h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
SECTION 18. Referral to Lupon. (j) Reply;
(k) Third party complaints;
This is about the referral of the case before the barangay. (l) Interventions.

Remember: Summary procedure, 6 months rani ang The decision of the court in civil cases is immediately
imprisonment. Ang limit sa barangay, up to 1 yr. executory.
- So, if a criminal or civil case is filed in court - But TN in ejecment cases what should be done
without prior referral to the barangay, the same by the defendant to stay the decision of the
shall be dismissed. court.
o Dili irefer sa court ha. Idismiss, without
prejudice.
o But TN: It is not jurisdictional. If the
adverse party fails to raise non-referral
at a proper time, waived.

SECTION 19. Prohibited Pleadings and Motions.

Same ra sa ejectment.

The following pleadings, motions, or petitions shall not

be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash the
complaint or information except on the ground
of lack of jurisdiction over the subject matter, or
failure to comply with the preceding section;
o What if there are other grounds other
than lack of jd over subject matter or
non-referral to the brgy?
 Then the same has to be raised
as an affirmative defense in the
answer.

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THE REVISED RULES OF PROCEDURE
FOR SMALL CLAIMS CASES
The rules in this law, just like in summary procedure
cases, are applicable only to first level courts.
The action is purely money claims.
The amount now has been raised to 300k for first lvl
courts outside Mnl, and within Metro Mnl, 400k.
- Pursuant to OCA Circ 45-2019 (March 21,
2019)
SECTION 5. Applicability.
RRPSCC is applicable to first level courts, to civil
actions purely civil in nature, and the plaintiff is
praying for a remedy solely for payment or
reimbursement of a sum of money.
The claim or demand may be:
- (a) For money owed under any of the following:
o 1. Contract of Lease;
 Presupposes nga ang gusto sa
plaintiff pabayron ra sa abang.
 If ang gusto sa plaintiff
pabayron unya pahawaon pajud,
not purely money claims.
 RRPSCC is not
applicable.
 Ang muapply
Ejectment.
o 2. Contract of Loan;
o 3. Contract of Services;
o 4. Contract of Sale; or
 Naay nakapalit nimo, wala
nibayad.
 Pero kung ang remedy nga
imong gipangayo is cancellation
of the contract, dili na siya
money claim.
o 5. Contract of Mortgage;
 This presupposes that there is a
contract of loan.
 Kung imong gipangayo is
foreclosure of mortgage,
RRPSCC will not apply. Ang
muapply is ang ordinary
procedure (Special civil actions
– foreclosure)
- (b) For liquidated damages arising from
contracts;
o Liquidated – amount of damages is
specifically provided in the contract.
 Dili kanang unliquidated
damages (such as moral
damages, exemplary damages)
 These could only be
proved through
evidence
 Ang gihisgutan diri,
liquidated.
 Provided or agreed by the
parties.
 So there is no need to present
evidence.
- (c) The enforcement of a barangay amicable
settlement or an arbitration award involving a
money claim covered by this Rule pursuant to
Sec. 417 of Republic Act 7160, otherwise
known as The Local Government Code of 1991.
o Diba naghisgot ta ganina ug barangay?
Unya ang amicable settlement, if dili
maenforce within 6 months, pwede sa
court?
o If the amount of the amicable settlement
does not exceed 300k/400k, the action
for the enforcement is governed by these
rules.
SECTION 6. Commencement of Small Claims Action.
How to commence small claims?
- Dili complaint ang i-file sac out. Unsay ifile?
Statement of Claim, attaching thereto the
certified photocopies of the actionable
documents (or all the documents evidencing the
claim, and affidavits of the witnesses.
- According to Sec 6:
o A small claims action is commenced by
filing with the court an accomplished
and verified Statement of Claim in
duplicate, accompanied by:
 a Certification Against Forum
Shopping, Splitting a Single
Cause of Action, and
Multiplicity of Suits ,
289 | c a v e a t e m p t o r
  and two (2) duly certified
photocopies of the actionable
document/s subject of the claim,
as well as the affidavits of
witnesses and other evidence to
support the claim.
- If not attached to the complaint, the same cannot
be presented during the hearing.
o No evidence shall be allowed during the
hearing which was not attached to or
submitted together with the Statement of
Claim, unless good cause is shown for
the admission of additional evidence.
If the plaintiff is engaged in money lending, banking and
similar activities, COOP for example, it must be so
stated in the Statement of claim filed within the calendar
year regardless of judicial station.
- This is very important. Failure on the part of
plaintiff to state in the Statement of Claim that it
is engaged in the business of money lending,
bank or similar activities will cause the
dismissal of the case with prejudice. (Sec 11)
SECTION 7. Venue.
The regular rules on venue shall apply.
- The rule on Personal Action shall be followed
However, if the plaintiff has a branch in the place where
the defendant is residing, it is required that the case be
filed in the branch where the defendant is residing and
where the plaintiff has a branch.
- Residence of corporations is the main office.
o Maldito man ang ubang banks, adto ifile
sa ilang main branch
o So in small cases, adto ifile sa lugar asa
ang branch and asa gapuyo ang
defendant
o Pero kung walay branch, then the
ordinary rules shall govern.
SECTION 8. Joinder of Claims.
Joinder of causes of action can be done, provided that
the total amount shall not exceed the ceiling amount of
300k or 400k.
SECTION 11 Dismissal of the Claim.
Upon the filing of the complaint, the court can
immediately dismiss the case if the court finds any
ground to dismiss the case.
- Just like summary procedure (any ground)
If during the hearing, the court finds any ground to
dismiss the case, it can still dismiss the case.
See 3rd par:
If plaintiff misrepresents that he/she/it is not engaged in
the business of banking, lending or similar activities
when in fact he/she/it is so engaged, the Statement of
Claim/s shall be dismissed with prejudice and plaintiff
shall be meted the appropriate sanctions, such as direct
contempt.
If the case is not governed under RRPSCC but docketed
as small claims although it is not. What should be done?
- It shall not be dismissed, but it shall be re-
docketed under the appropriate procedures.
- Suppose, a case is filed under the regular or
summary procedure but actually falls under this
rule.
o Dili sad idismiss.
o It shall be refered to the exec judge for
appropriate assignment.
SECTION 12. Summons and Notice of Hearing.
If the court does not find a ground to dismiss the case, it
shall issue summons, together with notice of hearing.
Kaning small claims case, mas paspas ni sa RRSP.
- Ang SCC matapos in one month.
- Upon the filing of the statement of claim and the
court did not find any ground to dismiss the
case, the court shall issue summons and notice
of hearing, and the hearing shall be done within
1 month from the filing of the case.
o Usa ra kahearing diri.
- The summons shall be accompanied by 4 papers.
So total of 5 docs with the summons. These are:
o Summons
o Statement of claims
o Notice of hearing
o Response form
290 | c a v e a t e m p t o r
  Is this not unfair? Ang plaintiff
pwede ba pud siya mangayo sa
court? Yes.
 Pwede ka
magpaphotocopy.
 Pwede sad
magdownload ka from
the internet.
o Form of the SPA
 If the defendant cannot validly
appear in court for a valid, he
has to fill up an SPA form.
If Summons is returned because the sheriff or the
process server failed to find him, the court shall order
the plaintiff to cause the service of summons and he is
required to submit a return within 30 days from notice.
- This is the basis of the amended rules.
- If the defendant cannot be located, or the
summons cannot be served, the case shall be
dismissed without prejudice.
SECTION 13. Response.
Within 10 days. No extension.
SECTION 14. Effect of Failure to File Response.
TN: Ang ifile sa plaintiff is Statement of claims. Ang
ifile sa defendant is Response.
What is the effect if the defendant or respondent fails to
file his response and likewise failed to appear during the
hearing?
- The court will render judgment based on the
annexes of the Statement of claim.
- Pero if mutunga siya bisag wala kafile sa
response, the court will entertain his defense.
o Should the defendant fail to file
his/her/its Response within the required
period but appears on the date set for
hearing, the court shall ascertain what
defense he/she/it has to offer which shall
constitute his/her/its Response, and
proceed to hear or adjudicate the case on
the same day as if a Response has been
filed.
o So pwede naka mutambag sa imong
silingan nga di nalang mutubag unya
tungahon nalang.
 Ipadala ang receipts
 If walay receipts, ipadala lawas
ug kalag.
SECTION 15. Counterclaims Within the Coverage of
this Rule.
What if he has counterclaims?
- The same can be included in the answer, be it
compulsory or permissive counterclaim, as long
as it is within the rules of small claims.
- In Summary Procedure, walay permissive. In
SCC, pwede, as long as the amount is within the
jurisdictional amount of small claims.
SECTION 16. Prohibited Pleadings and Motions.
TN of this.
The following pleadings, motions, or petitions shall not
be allowed in the cases covered by this Rule:
(a) Motion to dismiss the Statement of Claim/s;
o All kinds of motion to dismiss.
o In summary procedure, pwede motion to
dismiss for lack of jd over the subject
matter or failure to undergo
Katarungang Pambarangay.
o But in SCC, all kinds of MD is not
allowed.
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings,
affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply and rejoinder;
(k) Third-party complaints; and
(l) Interventions.
291 | c a v e a t e m p t o r
SECTION 18. Appearance.
The parties shall personally appear without the
assistance of a lawyer.
- Lawyers are prohibited from appearing in court,
exc if he is the plaintiff or defendant.
If a party is a juridical person, it must be represented by
a person who is not a lawyer.
- Kung dili mo magtinarong sa inyong pag
eskwela, pwede mo muapil didto sa small
claims. Kay dili man mo abogado. Kutob ramo
sa small claims. Big claims adto sa lawyers.
o Aron kaapil mos big claims, paninguha
jud mog tuon.
o Kung dili gani, small claims rajud mo.
SECTION 19. Appearance of Attorneys Not Allowed.
No attorney shall appear in behalf of or represent a party
at the hearing, unless the attorney is the plaintiff or
defendant.
Suppose, a party cannot appear. Just the same in
ordinary cases, the representative must be equipped with
an SPA, with authority to:
- Enter into compromise agreement or amicable
settlement of the dispute
- and to enter into stipulations or admissions of
facts and of documentary exhibits.
Kahibaw namo unsa nang GPA and SPA
- Ang girequire? Special Power of Attorney.
SECTION 20. Non-appearance of Parties.
Failure of the plaintiff to appear shall be cause
for the dismissal of the Statement of Claim/s without
prejudice. The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on a permissive
counterclaim.
Failure of the defendant to appear shall have the
same effect as failure to file a Response under Section
14 of this Rule. This shall not apply where one of two or
more defendants who are sued under a common cause of
action and have pleaded a common defense appears at
the hearing.
- So, the court can render judgment based on the
Statement of Claim and its annexes
- Except when there are several defendants and
some of them appeared because his appearance
would inure to the benefit of the other parties.
TN: When defendants are sued under a common cause of
action and have pleaded a common defense appears at
the hearing.
Failure of both parties to appear shall cause the
dismissal with prejudice of both the Statement of
Claim/s and the counterclaim.
SECTION 23. Hearing.
The hearing shall be terminated within the same day.
- No more tomorrow. The decision shall be
rendered within 24 hours.
- Maghearing karon, ugma naa nay decision.
Q: Wala may abogado. Kung pananglitan, dili sila
magkacompromise agreement.
- The hearing shall be informal. Dili gani magrobe
ang judge. Pangutan-on sa judge, ―Oh, di mo
magkasinabot ani?‖
- Suppose, the parties cannot arrive at a
settlement? Unsaon pagpresent sa evidence?
o For example, ingnon nimo ang plainitiff
―In your statement of claim, you
mentioned that the defendant has
obtained a loan. Do you have a proof for
this?‖ ―Yes, Judge. I have a promissory
note.‖ ―When the defendant failed to
pay, what did you do?‖ ―I sent him a
demand letter.‖ ―Do you have proof that
indeed, there was a demand letter sent
and received by the defendant?‖ ―Yes,
Judge. Naa koy registered mail.‖ Human
ang case. ―Defendant, unsa imong
defense?‖ For example, you have paid.
Proof? ―I have receipts‖… etc
o Human, decision dayon sa court.
SECTION 24. Decision.
The decision shall be final, executory and not
appealable.
- Cannot be subject of appeal. Remedy of the
aggrieved? Petition for Certiorari.
o MR, MNT, not allowed.
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