QUE Tl N N WR IN

M w
1997 RULES OF CIVIL PROCEDURE
1991 REVISED RULE ON SUMMARY PROCEDURE
REVISED KATARUNGANG PAMBARANGAY LAW
RULE ON WRIT OF HABEAS CORPUS
RULE ON WRIT OF AMPARO
RULE ON WRIT OF HABEAS DATA

REYNALDO U. AGRANZAMENDEZ
Professor of Law, University of the Cordilleras
{Formerly Baguio Colleges Foundation)
Baguio City, Philippines
~. • ··, : I ~ ;

' I

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 Philippine Copyright, 2018
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DEDICATION
REYNALD

ISBN 978-971-23-9377-8
my mfe, ~ria 'Remedios
No portion of this book may be copied or repro-
duced in books, pamphlets, outlines or notes, whether my cfii£dren, ~y §fenn ana .Lisa 1vfarie; and '1lizza
printed, mimeographed, typewritten, copied in differ- and Qlbram 'l{onnan
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and judicial or other officialproceedings with proper
citation.

Any copyof this book without the corresponding

number and the authorized signature of the author
on this page either proceeds from an illegitimate
source or is in possession of one who has no authority
to dispose of the same.

ALL RIGHTS RESERVED

BY THE AUTHOR

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 ABOUT THE AUTHOR
Reynaldo U. Agranzamendez was born on July 16, 1949, in
Rosario, La Union. He has been a trial lawyer since 1975, after passing
the 1974 bar examinations. He obtained his Bachelor of Laws degree
in 1974, graduating cum /aude, from the Baguio Colleges Foundation
(now the University of the Cordilleras) - the first collegiate institution
in Northern Luzon founded by the late illustrious educator Benjamin
RomeroSalvosa, himself a lawyer. In 2013 the author earned his Master
of Laws at the San Beda College.
He is currently a partner in Agranzamendez Uceralde Gallardo
& Associates, the second law firm he had co-founded in Baguio City
after the TenefranciaAgranzamendez Uceralde & Associates.
He joined the BCF law faculty in 1975. His teaching assignments
cover a wide range of subjects that include Secured Transactions,
Torts and Damages, Property, Land Titles and Deeds, Political Law,
Criminal Law, and Remedial LaVJ. It is in Remedial Law, however,
where the author has distinguished himself. In March 2000, he was
appointed Dean of the College of Law of what is now the University of
the Cordilleras, a position he continues to hold today.
The author's genuine love for the courtroom is matched only by
his intense liking for the classroom. In fact, assembling this volume is
his way of extending the classroom beyond its four walls.
A former presidentof the Integrated Bar of the Philippines, Baguio-
Benguet Chapter, the author is a holder of Chief Justice Panganiban
Professorial Chair and a member of the National Conference on the
Revisionof the Rules of Civil Procedure. In April 2014, he took up Entry
Level Course in International Arbitration at the Singapore Institute of
Arbitrationand is now a member of the Singapore Institute of Arbitrators.
He is blessed with two children, Ray Glenn (a lawyer) and Rizza (a
registered nurse), by the former Maria Remedios Rodriguez Calpotura,
with whom he has shared a blissful marriage .since 1977.

L
 PREFACE TO THE FOURTH EDITION

The author thought that the third edition would end his dabbling in
book writing. But the urge to assemble a newer version is hard to resist,
more so when there are students who say that the volume has helped
them in their studies and in their preparation for the bar examinations.
Not a few lawyers are using it; too, to confirm if what they had learned
several years ago are still applicable.
Although basic principles seldom change, some have undergone
modifications to make them hew with the modern times. After all,
procedural law cannot be stagnant. If it has to acquire its own life, it
must adjust itself to the environment of the present. Although most
decisional rules issued lately are mere reiterations of the old ones,
some of them are included in this volume to enhance understanding.
The question and answer format, a carry-over from the old
editions, enables the reader to understand more easily the legal
principles involved, including the difficult ones. The reader is advised,
however, to ponder on the question first before reading the suggested
answer.

REYNALDO U. AGRANZAMENDEZ

vii

I
-

PREFACE TO THE THIRD EDITION

Complimentary remarks about the second edition from students

and lawyers, quite a number of whom are from places outside Baguio
City, have encouraged the author to put together this third edition. It
was, to be sure, long in coming. The second edition was in 2008, and
this is now 2015. But better late than never, as some people are won't
to say.
The author hopes that this volume will be of help to law students,
especially those reviewing for the bar examinations. If lawyers will also
find it useful, then the author's efforts are more than compensated.
While this third edition is more comprehensive, it has retained the
question-and-answer format of its predecessors. The author believes
that a topic, even a complex one, is easier to understand when pre-
sented in Q&A.

REYNALDO U. AGRANZAMENDEZ

lX
 PREFACE TO THE SECOND EDITION

This second edition is an updated version of the first edition. Like

its predecessor, it is presented in simple question-and-answer form. It is
essentially a review material, although it may also be useful to students
who are taking up Civil Procedure for the first time.
The complex, intricate subject of Remedial Law has been a source
of fascination to many. Even a simple question on the subject can trigger
a lively debate among students and lawyers alike.
It is hoped that this volume will be of help to those who want to
know more about the subject.

REYNALDO U. AGRANZAMENDEZ

XI
 PREFACE

This is a reviewer in Civil Procedure and allied subjects, presented

in simple and easy question-and-answer form. Although it is primarily
intended as an aid to those preparing for the bar examinations, it may
be of some help to students who are still in their basic course - so it
is hoped.
If lawyers will also find this volume useful, then the author's efforts
in putting it together are more than compensated.

REYNALDO U. AGRANZAMENDEZ

xiii
 CONTENTS

Dedication ·················································································· iii

About the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Preface to the Fourth Edition...................................................... vii
Preface to the Third Edition . .... . . . . . . . . . . . . . . . . . . .. . . . . ix
Preface to the Second Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Preface xiii
Jurisdiction . .. . . . . . . . .. . . . .. .. . . . 1
Rule 1 (General Provisions) 24
Rule 2 (Cause of Action)........................................................ 30
Rule 3 (Parties to Civil Actions) .. .. . . . . . . . 36
Rule 4 (Venue) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Rule 5 (Uniform Procedure in Trial Courts) . . . . . . . . .. . . . . . . . .. .. . . . 74
Rule 6 (Kinds of Pleadings) 75
Rule 7 (Parts of a Pleading) 85
Rule 8 (Manner of Making Allegations in Pleadings) . . . . . . . . . . . . 98
Rule 9 (Effect of Failure to Plead) 105
Rule 1 O (Amended and Supplemental Pleadings). . . . . . . . . . . . . . . . . . . 111
Rule 11 (When to File Responsive Pleadings) 118
Rule 12 (Bill of Particulars) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Rule 13 (Filing and Service of Pleadings, Judgments,
and Other Papers) 123
Rule 14 (Summons) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . 131
Rule 15 (Motions) ~.................... 143
Rule 16 (Motion to Dismiss) . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 148

xv
Rule 17 (Dismissal of Actions) 164
Rule 65 (Certiorari, Prohibition, and Mandamus) 322
Rule 18 (Pre-trial) .. . . .. .. .. .. . .. .. .. .. .. .. .. .. .. .. .. 168
Rule 66 (Quo Warranto) 337
Rule 19 (Intervention) 181
Rule 67 (Expropriation)............................................................ 341
Rule 20 (Calendar of Cases) .. .. .. .. .. .. .. 184
Rule 68 (Foreclosure of Real Estate Mortgage) 346
Rule 21 (Subpoena) 185
Rule 69 (Partition) 352
Rule 22 (Computation of Time) .. .. .. .. .. .. .. 188
Rule 70 (Forcible Entry and Unlawful Detainer [and
Rule 23 to Rule 29 (Modes of Discovery) . .. . 190 the 1991 Revised Rule on Summary Procedure])...... 354
Rule 30 (Trial) .. .. .. 198 Rule 71 (Contempt) 376
Rule 31 (Consolidation or Severance) 201 The Revised Katarungang Pambarangay Law........... 380
Rule 32 (Trial by Commissioner) .. 203
Rule 33 (Demurrer to Evidence) 205 APPENDICES
Rule 34 (Judgment on the Pleadings) 209 Appendix A - Rules of Civil Procedure 388
Rule 35 (Summary Judgments) 211 Appendix B - Revised Rule on Summary Procedure 551
Rule 36 (Judgments, Final Orders, and Entry Thereof) 216 Appendix C - Interim Rules of Procedure on Corporate
Rule 37 (New Trial or Reconsideration) 220 Rehabilitation (2000) . 557

Rule 38 (Relief from Judgments, Orders, or Other Appendix D - Katarungang Pambarangay Law . 573
Proceedings) 226 Appendix E - The Rule on the Writ of Habeas Corpus . 581
Rule 39 (Execution, Satisfaction, and Effect of Judgments) 230 Appendix F - The Rule on the Writ of Amparo . 587
Rule 40 to Rule 56 (Appeals) .. . . . . 253 Appendix G - The Rule on the Writ of Habeas Data . 595
Rule 57 (Preliminary Attachment) 297
Rule 58 (Preliminary Injunction) 304
Rule 59 (Receivership) 309
Rule 60 (Replevin) 310
Rule 61 (Support Pendente Lite) 313
Rule 62 (I nterpleader) 315
Rule 63 (Declaratory Relief and Similar Remedies) 316
Rule 64 (Review of Judgments and Final Orders of the
Commission on Elections and the Commission
on Audit) 321
xvii
xvi
 JURISDICTION

1. Define Jurisdiction.
Jurisdiction is the inherent power of a court to hear, try, and decide
a case. (Zamora v. CA, 183 SCRA 279 [1990].)

2. What determines jurisdiction over the subject matter?

Theo/acts alleged in the complaint and the faw in force at the time
of the commencement of the action determine the jurisdiction of a court.
Hence, as a general rule, jurisdiction of a court is not affected by a new
legislation-laying jurisdiction over such proceedings to another tribu-
nal. (Mercado v. Ubay, et al., G.R. No. 35830, July 24, 1990.) Exception:
Where· the law expressly provides that it shall operate retroactively.
(Latchme Motoomu/1, et al. v. de la Paz, et al., G.R. No. 45302, July
24, 1990.)
Jurisdiction of the court over the subject matter of the action is
determined by the allegations of the complaint, irrespective of whether
or not the plaintiff is entitled to recover upon all or some of the claims
asserted therein. The jurisdiction of the court cannot be made to depend
upon the defenses set up in the answer or in the motion to dismiss;
otherwise, the question of jurisdiction would almost entirely depend
upon the defendant. (Serdoncillo v. Benolirao, G.R. No. 118328, Oct. 8,
1998; Citibank, N.A. v. CA, G.R. No. 108961, Nov. 27, 1998.)
By way of an exception, there is one instance when the court,
in determining its jurisdiction, may consider the defense set up by the
defendant in his answer - and that is in an ejectrnent case filed with
the Municipal Trial Court where the defendant sets up the defense of
agricultural tenancy by claiming that he is a tenant. In such a situation,
the court should not dismiss the case outright but must conduct a·
ereliminary hearing on said defense. If the court finds that th~re is
indeed an agricultural tenancy relationship between the plaintiff and the
defendant, then it must dismiss the case as the same falls within the
exclusive jurisdiction of the Department of Agrarian Reform Adjudication
Board (DARAS). (Isidro v. CA, et al., G.R. No. 105586, Dec. 15,,.1993.)

1
 QUESTIONS AND ANSWERS IN
JURISDICTION
REMEDIAL LAW

Thus if plaintiff files a complaint with the RTC, alleging that P300,000 (or P400,000 in Metro Manila). Note that for Metro Manila,
owes
1

defendant him PS00,000, but at the trial he is able to prove that there is only a one-time adjustment of the jurisdictional amount.
the amount due him is only P100,000, the RTC can still render judgme~t
for P100,000 because the facts alleged in the compl~int and th~ law m 4. Do Municipal Trial Courts have jurisdiction over cadas-
force at the time of the commencement of the action determine the tral and land registration cases? ·
jurisdiction of the court. (Ratilla v. Tapucar, et al., G.R. No. L-45018,
Yes, Municipal Trial Courts have delegated jurisdiction over
Jan. 24, 1977.)
cadastral and land registration cases involving uncontested lots and
3. Over what civil actions do the Municipal Trial Courts contested lots the value of which does not exceed P100,000 as may be
ascertained by affidavits of the claimant, or by their agreement, or from
have exclusive original jurisdiction?
the corresponding tax declarations. (B.P. 129, Sec. 34 as amended by
Municipal Trial Courts have exclusive original jurisdiction over the R.A. 7691; Adm. Gire. 6-93-A, dated Nov. 15, 1995.)
following:
a) civil actions and probate proceedings, testate and intestate, 5. Over what civil actions do Regional Trial Courts have
including the grant of provisional remedies in proper cases, where exclusive original jurisdiction? · ·
the value of the personal property, estate, or amount of the demand Regional Trial Courts have exclusive original jurisdiction over the
does not exceed P300,000 (or P400,000 in Metro Manila), exclusive of following:
interest, damages of whatever kind, attorney's fees, litigation expenses,
and cost, the amount of which shall be specifically alleged; a) civil actions in which the subject of the litigation is incapable
of pecuniary estimation;
b) cases of forcible entry and unlawful detainer; and
b) civil actions which involve title to, or possession of, real
c) all civil actions which involve title to, or possession of, property, or any interest therein, where the assessed value of the
real property or any interest therein where the assessed value of the property involved exceeds P20,000 (or PS0,000 in Metro Manila),
property or interest therein does not exceed P20,000 (or PS0,000 in except actions for forcible entry into and unlawful detainer of lands or
Metro Manila). buildings;
Section 5 of R.A. 7691 (which took effect on April 15, 1994) pro- c) actions in admiralty and maritime jurisdiction where the
vides: ~After five (5) years from the effectivity of this Act, the jurisdic- demand or claim exceeds P300,000 (or P400,000 in Metro Manila);.
tional amounts mentioned in Section 19(3), (4), and (8); and Sec. 33(1)
of Batas Pambansa Big. 129 as amended by this Act, shall be adjusted d) matters of probate, both testate and intestate, where the
to Two hundred thousand pesos (P200,000.00). Five (5) years there- gross value of the estate exceeds P300,000 (or P400,000 in Metro
after, such jurisdictional amounts shall be adjusted further to Three Manila); . ·
hundred thousand pesos (P300,000.00): Provided, however, That in e) actions involving the contract of marriage and marital
the case of Metro Manila, the above-mentioned jurisdictional amounts relations;
shall be adjusted after five years from the effectivity of this Act to Four
hundred thousand pesos (P400,000.00). • f) cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial functions;
. Thus, prior to April 16, 1999, the jurisdictional-amount in personal
actions was P100,000 (or P200,000 in Metro Manila). From April 16 g) civil actions and special proceedings that used to fall within
1999 to April 16, 20~, _it was ~200,000 (or P400,000 in Metro Manila)'. the jurisdiction of the Juvenile and Domestic Relations Court and of the
At present, but begmmng Apnl 17, 2004, the jurisdictional amount is Court of Agrarian Relations; and

2 3
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
h) all other cases in which the demand, exclusive of Interest,
damages of whatever kind, attorney's fees, litigation expenses, and
costs or the value of the property in controversy exceeds P300,000 (or
P400,000 in Metro Manila).
Some branches of the Regional Trial Courts in certain cities and
provinces have been designated by the Supreme Court as Family
Courts. These Family Courts shall have exclusive original jurisdiction
over the following cases:
a) criminal cases where one or more of the accused is below
18 years of age but not less than nine years of age, or where one or
more of the victims is a minor at the time of the commission of the
offense;
b) petitions for guardianship, custody of children, habeas
corpus in relation to the latter;
c) petitions for adoption of children and the revocation thereof;
d) complaints for annulment of marriage, declaration of nullity
of marriage and those relating to marital status and property relations
of husband and wife or those living together under different status arid
agreements, and petitions for dissolution of conjugal partnership of
gains; · jurisdiction over petitions for habeas corpus in relation to custody
e) petitions for support and/or acknowledgment;
f) summary judicial proceedings brought under the provisions
of the Family Code of the Philippines; .c:
g) petitions for declaration of status of children as abandoned,
depen?ent, or ne~lected children; petitions for voluntary or involuntary
commitment of children; the suspension, termination, or restoration of
parental authority; and other cases cognizable under P.O. 603, E.O: 56;
and other related laws;
h) petitions for the constitution of the family home;
i) cases against minors cognizable under the Dangerous
Drugs Act, as amended;
. j) _violations _of R.A. _7610 (otherwise known as Special Protec-
tion of Children Against Chrld Abuse, Exploitation and Discrimination
Act), as amended; and
k) cases of domestic violence· against: (1) women _ which
are acts of gender based violence that result or are likely to result In
4 5
JURISDICTION
physical, sexual or psychological harm or suffering to women; ~nd ot~er
forms of physical abuse such as battering or threats and coercion whrch
violate a woman's personhood, integrity and freedom of movement;
and (2) children - which include the commission of all forms of abuse,
neglect, cruelty, exploitation, violence, and discrimination and all other
conditions prejudicial to their development. (R.A. 8369, Sec. 5.)
Regional Trial Courts shall also exercise original jurisdiction:
a) In the issuance of writs of certiorari, prohibition, mandamus,
quo warranto, habeas corpus and injunction which may be enforced in
any part of their respective regions; and
b) In actions affecting ambassadors and other public ministers
and consuls. (B.P. 129, Sec. 21.)
6. P filed /petition for habeas corpus involving his minor
child in the Family Court in Quezon City, but the Family Court
dismissed the petition because of the allegation therein that
the child was in Basilan. P then filed his petition with the Court
of Appeals, but the Court of Appeals also dismissed the petition
because,according to it, it is the Family Court that has exclusive
of children. The Court of Appeals ruled that R.A. 8369 (The Family
Courts Act of 1997)gives family courts exclusive jurisdiction over
petitions for habeas corpus in relation to the custody of children,
thereby repealing R.A.7902(An Act Expanding the Jurisdiction of
the Court of Appeals} and B.P. 129 (The Judiciary Reorganization
Act of 1980).
Is the Family Court correct in dismissing the petition? Is the
Court of Appeals correct in dismissing the petition?
:Yes, he Family Court is correct in dismissing the petition because
its writs are enforceable only within its territorial jurisdiction ( or, within the
judicial region to which the Family Court belongs). Obviously, Basilan is
not within the territorial jurisdiction of the Family Court of Quezon City.
No, e Court of Appeals is not correct in dismissing the petition.
'' : The ruling of the Court of Appeals that R.A. 8369 (The 'Family
Courts Act of 1997) has repealed R.A. 7902 (An Act Expanding the
Jurisdiction of the Court of Appeals) and B.P. 129 (The Judiciary
Reorganization Act of 1980) is wrong. The Court of Appeals shou~.d
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
courts detennine the authority of the government entity, the necessity ~f
the expropriation, and the observance of due process. In the mal~, the
subject of an expropriation suit is the government's exercise of eminent
domain, a matter that is incapable of pecuniary estimation. True, the
value of the property to be expropriated is estimated In monet~ry term~,
for the court is duty-bound to determine the just compensation for it.
This, however, is merely incidental to the expropriation suit. Indeed, .the
amount is determined only after the court is satisfied with the propriety
of the expropriation. (Barangay San Roque, Talisay, Cebu v. Heirs of
Francisco Pastor, G.R. No. 138896, June 20, 2000.)
In Saraza v. Francisco, G.R. No. 198718, Nov. 27, 2013, the
case that was filed by Francisco with the Regional Trial Court was for
specific performance, sum of money, and damages: Francisco and
Fernando executed an agreement that provided for Fernando's sale
of his 100-square meter share in a lot in Makati for P3,200,000 to
Francisco. The amount of P1 ,200,000 was paid upon the execution of
the agreement, while the P2,000,000 was to be paid on installmentsto
the Philippine National Bank to cover the loan of Fernando's parents
with the bank. A final deed of sale conveying the property was. to be
executed by Fernando in favor of Francisco upon full payment of the
PNB loan. The Supreme Court held that the suit was still essentially for
specific performance, a personal action, because it sought Fernando's
.execution of a deed of absolute sale in favor of Francisco based on
the agreement, which he had previously made. The rul Ing in Saraza
should not be confused with the ruling in National Steel Corporation
v. CA, G.R_. No. 123215, Feb. 2, 1999, where the Supreme Court held
that an _action that seeks the execution of a deed of sale over a parcel
of I and rs for recovery of real property, and not for specific performance
because the primary obje?tive is to regain ownership and possession of
!he property. It was explained that the prayer in National Steel was not
In anywar connected to a contract that was previously executed by the
party against whom the complaint was filed. ·
. Other examples of actions mcapabie of pecuniary esnmanon are:
~ct1on for ~upport, action for annulment of judgment, actions question~
mg the vall~1ty of mortgage, action for rescission which is the counter-
part of specific performance.
, But, where_ the complaint, although denominated in the title th f Serrano v. Delica, G.R. No. 136325, July 29, 2005, also teaches
:sd~~~ ~( 55:i:c~~caP;::~~;~~ds~~:~~~~~ethde. plha.in~ff is askinge~~~t
in is raver and that a
8 9
JURISDICTION
Transfer Certificate of Title covering such I and be issued to him, then
the action Is to be considered one for the recovery of the real property
and not for specific performance since the primary objective is to regain
the ownership and possession of the parcel of land. Hence, the docket
fees should be computed on the basis of the value of the property and
the amount of related damages claimed, exclusive of interest. (Ruiz
v. J.M. Tuason & Co., Inc., G.R. No. L-18692, Jan. 31, 1963 [7 SCRA
202]; Tacay v. RTC, G.R. Nos. 88075-77, Dec. 20, 1989 [180 SCRA
433]; National Steel Corp. v. CA, G.R. No. 123215, Feb. 2, 1999.)
In Virginia Gochan, et al. v. Mercedes Gochan, et al., G.R. No.
146089, Dec. 13, 2001, the complaint in the court below was denomi-
nated (inits caption) as one for "specific performance and damages."
The relief sought, however, is the conveyance or transfer of real prop-
erty, or ultimately, the execution of deeds of conveyance in plaintiffs'
favor of the real properties enumerated in the provisional memorandum
of agreement. It was held that the case below was actually a real action,
affecting, as it does, title to or possession of real property.
lri a real action, the court's jurisdiction is determined by the
assessed value of the real property as alleged in the original complaint
8.P. 129, as amended by R.A. 7691, provides that if the assessed
value of the real property subject of the suit does not exceed P20,000
(or P50,000 in Metro Manila), the action falls within the jurisdiction
of the municipal trial court; and if it exceeds P20,000 (or P50,000 in
Metro Manila), the action is cognizable by the regional trial court. It
is, therefore, necessary to state in the original complaint the assessed
value of the property in order to determine whether the court in which
the action is filed has jurisdiction over the subject matter of the suit. In
Ouano v. PGTT International Investment Corp., et al., G.R. No. 134230,
July 17, 2002, it was held that "since the action involves ownership and
possession of real property, the jurisdiction over the subject matter of
the claim is determined by the assessed value, not the market value,
thereof pursuant to B.P. 129, as amended by R.A. 7691." In Laresma v.
Abellana, G.R. No. 40973, Nov. 11, 2004, the Supreme Court laid down
the rule that "to determine which court has jurisdiction over the action,
the complaint must allege the assessed value of the real property
subject of the complaint or the interest thereon."
that since "respondent's complaint is a real action, the Rule requires that
'the assessed value of .the property, or if there is none, the estimated

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
value thereof shall be alleged by the claimant and shall be the basis of
computing the fees.'"
Where there are several parcels of land, their combined assessed
value determines the jurisdiction of the court. (Republic of the Philip-
pines v. Mangorata, G.R. No. 170375, July 7, 2010.)
In an action for partition, the assessed value of the real property
involved determines what court has jurisdiction. (Barrido v. Nonato,
G.R. No. 176492, Oct. 20, 2014.)
1 O. The complaint for the recovery of possession of real
property did not allege the assessed value thereof. The defendant
filed a motion to dismiss on ground of lack of jurisdiction, but the
trial court denied the motion to dismiss. Is the trial court correct in
denying the motion to dismiss?
No, the trial court is not correct.
A complaint must allege the assessed value of the real property
subject of the complaint or the interest thereon to determine which court
has jurisdiction over the action. Where the plaintiff fails to allege in his
complaint the assessed value of the subject property, the trial court
seriously errs in denying a motion to dismiss. (Quinagoran v. CA, G.R.
No. 155179, Aug. 24, 2007.)
11. Plaintiff JY filed against defendant AM a complaint for
annulment of TCT No. 99694,Tax Declaration No. 46493 and Deed
of Sale, and Partition, Damages and Attorney's Fees with the RTC
of Cebu City. In his complaint, JY alleged that AM had sold to
him a SO-squaremeter portion of AM's 150-square meter lot. AM
acquired the 150-square meter lot from LV on installment basis.
According to the plaintiff, the defendant assured him that the deed
of sale to be executed by LV would be in favor of both JY and
AM as buyers. But plaintiff later learned that a deed of sale was
already executed by LV where it was made to appear that AM was
the sole buyer and that TCT No. 99694 was already issued where
AM was made to appear as the sole owner of the entire lot. In his
complaint where he sought the annulment of the deed of sale as
well as of the transfer certificate of title and the tax declaration' JY
prayed for partition of the lot. Defendant AM moved to dlsmlssthe
complaint for lack of jurisdiction, arguing that It Is the MTC that
10
·11
JURISDICTION
has Jurisdiction because the total assessed value of the lot Is only
P15,000. Plaintiff JY Insists that the RTC has jurisdiction because,
according to him, the subject matter of the action Is incapable of
pecuniary estimation. Should the RTC dismiss the complaint?
Yes, the RTC should dismiss the complaint because it has no
jurisdiction over the subject matter thereof, it being a real action where
the assessed value of the real property involved is less than P20,000.
Since JY's cause of action is based on his right as purchaser of the
50-square meter portion of the lot, his complaint involved title to real
7
property or any interest therein. That he was asking for th annulment
of some documents and instruments is beside the point as such
annulment is merely incidental to the partition being demanded. by
him. JY's argument, therefore, that his action is incapable of pecuniary
estimation is wrong. For, the nature of an action is determined not by
what is stated in the caption of the complaint but by the allegations
therein and the reliefs prayed for. Where the ultimate objective of the
plaintiff is to obtain title to real property, it is a real action; and, therefore,
it should be filed in the proper court having jurisdiction over the assessed
value of the property subject thereof. (Huguete, et al. v. Embudo, et al.,
G.R. No. 149554, July 1, 2003.)
. 12. Plaintiff filed an action for cancellation of defendant's
'' certificate of title over a real property. The complaint alleges that
defendant was issued a certificate of title on the basis of a deed
of sale bearing the forged signature of the plaintiff. Is this a real
action?
Yes, this is a real action. As held in Pad/an v. Dinglasan, G.R. No.
.180321, March 20, 2013, if plaintiff's ultimate objective is to obtain title
to real property, the action is a real action although plaintiff is demanding
the cancellation of defendant's certificate of title.
An action involving title to real property is a real action. "Involving
title to real property" means that the plaintiff's cause of action isbased
on a claim that he owns such property or that he has the legal rights to
have exclusive control, possession, enjoyment, and disposition of the
real property. "Title" is the legal link between the owner and the property,
On the other hand,· "certificate of title" is the document of ownership
under the Torrens system of. registration issued by the government
through the Register of Deeds.' While title is the claim, right, ~r interest
in real property, a certificate of title is the evidence of such claim. ·In the
11
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
problem presented, the issue of who between plaintiff and defendant
has the valid title to the subject real property must first be determined
before a determination of who between them is legally entitled to the
certificate of title covering the real property involved.
13. Plaintiff filed with the RegionalTrial Court a complaint for
annulmentor rescission of a contract of sale of two parcels of land.
The Clerk of Court required the plaintiff to pay P5400as docket fee
{or filing fee). Defendantmoved for the dismissal of the complaint,
alleging that the trial court did not acquire jurisdiction over the
case by reason of plaintiff's non-payment of the correct amount
of docket fee. Defendantargued that an action for annulment or
rescission of a contract of sale of real property is a real action;
therefore, the amount of the docket fee to be paid should be based
either on the assessedvalue of the property subject matter of the
action or its estimatedvalue as alleged in the complaint. Plaintiff,
on the other hand, said that an action for annulment or rescission
of a contract of sale of real property is incapable of pecuniary
estimation; therefore, the docket fee should. be the fixed amount
of P5400.In due time, the trial court issued an order requiring the
plaintiff to pay the amount of docket fee based on the estimated
value of the parcels of land in litigation as stated in the complaint.
Is the trial court correct?
No, the trial court is not correct. An action for rescission of contract
is one, which is incapable of pecuniary estimation. Therefore, the docket
fee for its filing should be the flat rate of P5400. (De Leon v. CA, G.R.
No. 104796, March 6, 1998.)
14. The CBA betweenPALand FASAPfixes the compulsory
retirement age for females at 55 years and for males at 60 years.
Se~eralfl!ght attend~ntsfiled a special civil action for declaratory
~eh~f a~a1.nst PAL with the RTC, alleging that the said provision
rs dlscriminatory against female flight attendants and in violation
of the Constitution, the Labor Code {on right to equal work and
employmentopportunities) and the Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW)ratified
by.theSe~~tein 1981.The petitioners prayed that the RTC declare
said p~o.v1s1on null and void. Respondent PAL moved to dismiss
the pet1tio~for lack of jurisdiction, arguing that the matter is within
the exclusive and original jurisdiction of the Voluntary Arbitrators
12
JURISDICTION
Panel, which has jurisdiction to hear and decide all unresolved
grievances arising from the interpretation and implementation of
the CBA. Upholding Its Jurisdiction over the case, RTC issued an
order denying the motion to dismiss. Is the RTC correct?
Yes. The allegations in the petition and the relief prayed for
show that the issue raised is whether the CBA provision in question is
constitutional. The .said issue cannot be resolved solely by applying_the
Labor Code. Rather, it requires the application of the Constitution, labor
laws, law on contracts and the CEDAW.
The subject of .the litigation is incapable of pecuniary estimation
exclusively cognizable by the RTC:Being a civil action, it is beyond the
jurisdiction of labor tribunals. Here, the employer-employee relationship
between the parties is merely incidental. (Halaguena, et al. v. PAL, G.R.
No. 172013, Oct. 2, 2009)
· • · 15. What courthas jurisdiction over complaint for enforce-
ment of foreign judgment?
·;. \: · Complaint for· enforcement of foreign judgment, even i~ capa~le
of pecuniary estimation, falls under the jurisdiction of the Regional Tnal
Court, provided that no other court or office is vested with jurisdiction
over such complaint. (Mijares, et al. v. Ranada, et al., G.R. No. 139325.
April 12, 2005)
. '
'16. May a RegionalTrial Court annul the judgment of another
RegionalTrial Court? ·
· No. Only the Court of Appeals has jurisdiction to annul the
judgment of a ~eg!onal Trial Court.
' ·But, if what is sought to be annulled is a judgment of the Municipal
Trial Court, then the action for annulment should be filed with the
Regional Trial Court because an action for annulment of judgment of
a· Municipal Trial Court is incapable of pecuniary estimation._ (B.P. 129;
R.A.- 7691; Rules of Court, Rule 47.)
, ' ··17. Plaintiff was the owner of 100 shares of stock of XYZ
Corporation. He filed a complaint alleging that during the time
that he was out of the country, his Stock Certificate covering his
100 shares was cancelled, and a new Stock Certificate waslssued
to, -and In the name of, the defendant. In his complaint, plaintiff
13

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
prayed that judgment be issued ordering the defendant to execut,
I
a deed of assignment re-transferring to the plaintiff the 100 shares
of stock. For the filing of his complaint, plaintiff paid the sum
P4,040 as docket and other fees. Defendant moved to dismiss
the complaint on the ground of lack of jurisdiction, alleging that
plaintiff did not pay the correct amount of docket fee. Defendant
argued that the amount of docket fee should be based on the actual
value of the shares of stock, which, at the time of the filing of the
complaint, was PS,511,000. Thus, according to the defendant, the
correct amount of docket fee should be P426,805. Plaintiff counter
argued that his complaint is one for specific performance and is
Incapable of pecuniary estimation, hence the docket fee·therefore
should be P4,040 only. Who between the plaintiff and the defendant
is correct?
The defendant is correct. Indeed, the action is for the recovery of
property. Hence, the docket fee should be based on the value of the
property sought to be recovered. (National Steel Corporation· CA, v.
Feb. 2, 1999.)
~ · Note, however, that although the ,~e
o-~ fee-is udsai ona requ1remen , the trial court may allow the plaintiff
to pay the same within a reasonable time but before the expiration of
the applicable prescriptive or reglementary period. If the plaintiff fails
to comply with this requirement, the defendant should timely raise the
issue of jurisdiction; otherwise, he would be considered in estoppel. In
the latter case, the balance between the appropriate docket fee and
the amount actually paid by the plaintiff will be considered a lien· on any
award he may obtain in his favor. (Sun Insurance Office, Ltd. v. Asuncion,
G.R. Nos. 79937-38, Feb. 13, 1989 [170 SCRA 274]; Pantranco North
Express, Inc. v. CA, G.R. No. 105180, July 5, 1993 [224 SCRA 477].)
18. Suppose the plaintiff failed to pay the correct amount of
docket fee, may the trial court dismiss the complaint?
No, the trial court may not dismiss the complaint. Instead, th~
trial court should allow the plaintiff to pay the correct amount of docket
fee within a .reasonable time but before the expiration of the applicable
prescriptive or reglementary period. If the plaintiff fails to pay within
the period · granted him by the trial court, then the defendant must
move-to dismiss the complaint on the ground of lack of jurisdiction.
The .defendant who falls to timely raise the issue of jurisdiction would
14.
I
I
I
JURISDICTION
I
be considered in estoppel. (National Steel Corporation v CA, G.R. No.
123215, Feb. 2, 1999.)
A~ he.Id in Monsanto v. Lim, G.R. No. 178911, Sept. 17, 2014,
jurisdiction is acquired upon payment of the prescribed docket fees.
19. If the filing and docket fees in a real action are paid, but
the fees for certain related damages are not. paid does the court
acquire jurisdiction over the action? '
Where the fees prescribed for the real action have been paid but
the fees for certain related damages are not, the regional trial court,
although it has jurisdiction over the real action, may not have acquired
jurisdiction over.the accompanying claim for damages. Accordingly, the
court may expunge those claims for damages, or allow, on motion, a
reasonable time for amendment of the complaint so as to allege the
precise amount of damages and accept payment of the requisite legal
fees. If there are unspecified claims, the determination of which may
arise after the filing of the complaint or similar pleading, the additional
filing fee therefor shall constitute a lien on the judgment award. The
same rule applies to third-party complaints and other similar pleadings.
(Ba/Iatan v. CA, G.R. No. 125683, March 2, 1999.)
20. P sues D for the payment of P150,000 based on a promis-
sory note. P also wants D to pay him PS00,000 as moral damages,
PS00,000 as exemplary damages; and PS0,000 as attorney's fees. In
what court should P file his complaint?
P should file his complaint in the Municipal Trial Court because his
demand, being only P150,000, does not exceed P300,000 (or P400,000
in Metro Manila). P's action is a personal action. In determining what
court will tiave jurisdiction in personal actions, damages of whatever
kind·(as well as interest, attorney's fees, litigation expenses, and costs)
shall be excluded if they are merely incidental to, or a consequence
of, the main cause of action. In the problem presented, P's claims for
moral damages and exemplary damag~s are _me~ely incident~! to, or a
consequence of, his main cause of action which rs for collection of the
sum of P150,000. (Adm. Gire. 09-94, dated June 14, 1994.)
In cases where the claim for damages is the main c~use of
action ·or one of the causes of action, the amount of such cla~m shall
be co~sidered in determining the jurisdictio~ of the cou~. Action~ for
damages based on quasi-delict are primarily and effectively actions
.15
 /
QUESTIONS AND ANSWERS IN
I
I JURISDICTION
REMEDIAL LAW I
I
for the recovery of a sum of money for damages for the tortious acts~ over the original complaint and the purpose of the amendment is to
(Mendoza v. Soryano, et al., G.R. No. 164012, June 8, 2007.) -.', confer jurisdiction on the court does not apply iri the problem presented
.. ,·· because, here, the RTC had jurisdiction over the original complaint.
21. Plaintiff filed with the RTC a complaint against defen- (Sante v. Clar~va/1, et al., G.R. No. 173915, Feb. 22, 2010.)
dant, praying that defendant be ordered to pay: P300,000 as moral . l - .

damages; eso,ooo. as. exemplary damages; P50,000 as attorney's 22. P sues D for damages arising from defamatory utterances
fees; ~~9,"99.9 __ ~~--l~~lg~ti.~n expenses: and costs of the suit. The made by D against him. In his complaint, p claims moral damages
claim for damages was ba~~~-~-r:i.Jhe allegation in the .complalnt [nthe amount of PS00,000,exemplary 'damages in the amount of
that defendant .uttered to the plaintiff, in the. presence of other P100,000, and attorney's fee in the amount of ·pso,ooo. · In what
persons, the following: "How many rounds (?f sex_ did you have court should P file· his complaint?
last night with your boss? You fuckin' bitch!" Defendant filed
a motion to dismiss on the ground that it was the MTC, not the (fi""~ . · He shoutd file it in the Regional Trial Court, Where, in a personal
RTC, that had jurisdiction over the subject matter of the action. \\"' '; action the claim for damages is the main cause of action {or one of
According to the defendant, the claim for moral damages was not ~<~ the causes of action), Jhe amount of such claim shall be considered in
more than the jurisdictional amount of P300,000because the claim ii .rJI- IP'determ.ining the j~risdi~tion of the court. (Adm. Gire. 09-94, dated June
for exemplary damages, attorney's fees and litigation expenses 'l"'"_,(\·
,v• 14, 199f)
. ··--·<
should be excluded in computing the total claim for purposes of in ··ciises.where. the claim for damages .. is· the main cause of
determining what court had jurisdiction. Holding that plaintiff's action, or one of the causes of action, the amount of such claim shall
total claim as stated in the complaint was P420,000, the RTC be considered in determining the jurisdiction of the court. Action for
denied the motion to dismiss and ruled that it had jurisdiction. Is damages based on quasi-delict are primarily and effectively actions
the RTC correct? for the recovery of a sum of money for damages for the tortious acts. I
Yes, the RTC is correct. In this case, the complaint is for the
recovery of damages for the alleged malicious acts of the defendant.
(Mendoza v. Soriano, et al., G.R. No. 164012, June 8, 2007.),
•. ,I
The complaint principally sought an award of moral damages and
exemplary damages, as well as attorney's fees and litigation expenses,
23. If a commercial case is·erroneously raffled to a regular
branch of the regional trial court, or an ordinary civil 'case is
I
for the alleged shame and injury suffered by the plaintiff because of erroneously raffled to a special commercial court, what are the
defendant's utterance made in the presence of other persons. Based on guidelines to follow?
the allegations in the complaint, plaintiff's main action is for damages. ' I
In Gonzales v. GJH Land, Inc., et al., G.R. No. 202664:'Nov. 10,
Hence, the other forms of damages being claimed by the plaintiff, e.g.,
2015, the following guidelines are jssued by the Supreme Court, En
exemplary damages, attorney's fees, and litigation expenses, are not 1.j
Banc: · · -
merely incidental to or consequences of the main action but constitutes
the primary reliefs prayed for in the complaint. Therefore, the total 11
amount of all the damages claimed is the basis for determining the
jurisdictional amount. (Sante v. Clarava/1, et al., G.R. No. 173915, Feb.
22, 2010.) 1.1 If the RTC has only one branch designated as a
Special Commercial Court, then the case shall be~ to
Suppose in the problem presented, the plaintiff amended her the Executive Judge for re-docketing as a commercial case, and
I
complaint by increasing her claim for moral damages from P300,000
to P1 ,000,000. May the court allow the amendment of the complaint?
.
. .
thereafter, ~aneq)to the sole special branch;
.
1.2 If the RTC has multiple branches des~ _ as ,I
Yes, the RTC may allow the amendment of the complaint. The rule
that amendment cannot be allowed when the court has no jurisdiction Special Commercial Courts, then the case shall be~ to
i
16 17 I
I
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
the ExecutiveJudge for re-docketingas a commercial case, an?
thereafter,(affled off)mong those special branches; and .:,
1.3 If the RTC has no internal branch de~ as a
Special Commercial Court, then the case shall be ~lo the
nearest RTC witha .designatedSpecial CommercialCourt branch
within the judicialregio~-~on::ferral, the RTC to which ~he case
was referredto should~~the_ca~e as a.commerc1atcase,
___ and then: (a{if the said RTC has only one branch designat~d.-~~
. ..a Special Commercial.Court, assign the case to the sole _special
branch; or (b}'"if the said RTC has multiple branches des1gnat~~ .
as Special Commercial Courts, raffle off the case among those ~ ,, 1).,,
special branches.
2. 1f]1n.ordinal)!cool'case1ilecttle[oretfie proper RICJs:W(Q!}Qly:,:_, ~--'.: ri
~rlm!ctQ::i1its~b[!ra..n.~1gna .as.a Special Gommerc1al Couft, then . . ':: ·r
the case shall b~to the ExecutiveJudge forui-dockeffiig as an '!,
ordinary civil case. Thereafter,it shall be raffled off to all courts of the
same RTC (includingits designatedspecial brancheswhich, by statute,
are equally capable of exercising general jurisdiction same as regular
branches),as providedfor under existing rules. · not include deposit. The trial court denied Reyes's motion. Is the
~ffle.:of..:cases·s s.ubje.ci to:::the RaY ent of the
ap..Rro ·a e d etj se of'an differenre. On the other hand,
all docket fees already paid shall be duly credited, and any excess,
refunded.
24. On November 7, 1994, Reyes; as seller, and Lim, as
buyer, entered into a Contract to Sell Involving a land situated in
Pasay-City.The land was then occupied by HL as lessee. The total
consideration is P28 Million. Upon the execution of the contract
to sell, Lim paid Reyes P10 Million as down payment. The balance
of P18 Million was to be paid on or before March 8, 1995. The
Col'}tract,. _however, stipulates that if the lessee shall not vacate
the land on or before March 8, 1995, then Lim shall withhold the
18
JURISDICTION
payment of the balance of P118 Million, and Reyes agrees to pay
to Lim a penalty of 4% per month (or P400,000) based on the down
l
payment of P10 Million. HL did not vacate, so Lim did not pay the i.
balance of P18 Million. On March 23, 1995, Reyes filed a complaint
against Lim and HL. The complaint alleges that Lim connived with
HL not to vacate the land until the P400,000monthly penalty would i
have accumulated and equaled the unpaid purchase price of P18
Million. Reyes then asked for the rescission of the contract to
sell. In his answer, Lim prayed for the cancellation of the contract.
It appears that even before the balance of P18 Million would
become due, Reyes had sold to LO the same land. On motion of
Lim, the Regional Trial Court issued an order directing Reyes to
.
',
. (.
·J· •
..
deposit with the cashier of the RTC the P1 O Million down payment.
Reyes filed a motion to set aside the order on the ground that it
practically grant~d the reliefs Limprayed for in his answer. Reyes
further argued that deposit is not among the provisional remedies
enumerated in Rules 57 to 61 of the 1997 Rules of Civil Procedure.
He said that a court cannot apply equity and require deposit if the
law already prescribes the specific provisional remedies which do
trial court correct?
Yes.
This case is one where there is a hiatus in the law and in the Rules
of Court. If left alone, the hiatuswill result in unjust enrichment to Reyes
at the expense of Lim. Article 9 of the Civil Code mandates the courts
to make a ruling despite the "silence, obscurity or insufficiency" of the
laws."
. This calls for the applicationof equity which "fills the open spaces
m the law."
The trial court in the exercise of its equity jurisdiction may validly
order the deposit of the P10 Million down payment in court. The
purpose of the exercise of equity jurisdiction in this case is to prevent
unjust enrichment and to ensure restitution. To subscribe to Reyes's
contention will unjustly enrich him at the expense of Lim. · '
Besides, the refund of amounts received under a contract is a
precondition to the rescissionof the contract. (Reyes v. Lim, et al., G.R.
No. 134241, Aug. 11, 2003, citing Government of Philippine Islands v.
Wagner, et al., 49 Phil. 944.) ·
19
 ''f:iji,rl'''-
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
25. What is the Doctrine of Primary Jurisdiction?
The Doctrine of Primary Jurisdiction (or Doctrine of Primary
Administrative Jurisdiction) vests in an administrative tribunal the juris-
diction to determine a controversy involving a question requiring the
exercise of sound administrative discretion. Thus:even where the court
has jurisdiction to take cognizance of a particular case, but the resolution
of the issues in said case requires the expertise, specialized skills, and
knowledge of the proper administrative bodies because of technical
matters or intricate questions involved, then relief must first be obtained
in an administrative proceeding before a remedy will be supplied by the
courts even though the matter is within the proper jurisdiction of a court.
Stated differently, where jurisdiction is vested upon· an administrative
body, no resort to the courts may be made before such administrative
body shall have acted upon the matter. (Brett~- /AC, G.R. No. 74223,
Nov. 27, 1990 [191 SCRA 687); Industrial Enterprises v. CA, G.R. No.
88550, April 18, 1990 [184 SCRA 426]; Cristobal, et al. v. CA, G.R. No.
125339, June 22, 1998.)
Section 1 of P.D. 957 limits the jurisdiction of the Housing and
Land Use Regulatory Board (HLURB) to three kinds of cases, namely:
(a) unsound real estate business practices; (b) claims involving refund
and any other claims filed by subdivision lot or condominium unit buyers
against the project owner, developer, dealer, broker, or salesman; and
(c) cases involving specific performance of contractual and statutory
obligations filed by buyers of subdivision lots or condominium units
against the owner, developer, dealer, broker, or salesman. While par-
agraphs (b) and (c) limit the HLURB cases to those between the buyer
and the subdivision or condominium owner, developer, dealer, broker,
or salesman, paragraph (a) is broad enough to include third parties to
the sales contract. The jurisdiction of the HLURB to regulate the real
estate trade is broad enough to include jurisdiction over complaints for
annulment of mortgage. Citing its ruling in Manila Banking Corporation v.
~poll~~s :?abina, G.R. No. 145941, Dec. 16, 2008, the Supreme Court,
in f!~i!tpprne Bank of Communications v. Pridisons Realty Corporation,
et al., G:R. No. 155113, Jan. 9, 2013, held: "To disassociate the issue
of nullity of mortgage and lodge it separately with the liquidation court
would only cause inconvenience to the parties and would not serve the
ends of..~peedy and inexpensive administration of justice as mandated
by the laws vesting quasl-judklat powers in the agency.
20
JURISDICTION
,,, '
v25· What is the principle of hierarchy of courts?
· I' f ~t is t~e ~rinciple that requires litigants to initially seek the proper
re re rom . e. o~e~ courts in those cases where the Supreme Court has
:~~~u(~;:~~~=d,~t,on wit~ ~~e CA and RTC to i~ue the extraordinary
~ s, ~roh1b1t1on, or certioran)..}<s a court of last resort
the SC s.hould not be burdened with thetask of dealing with causes i~
th~ first instance. The SC's original jurisdiction to issue extraordinary
wn~s should. be exercised only where absolutely necessary, or where
serious and important reasons therefor exist. (Pearson v. JAG, G.R. No.
74454, Sept. 3, 1998 [295 SCRA 27).)
The doctrine of. hierarchy of courts serves to determine the
proper forum for. the extraordinary remedies of certiorari, prohibition,
manda:r7us, quo warranto, and habeas corpus. It has been held that a
be~~m,ng regar~ for the doctrine of hierarchy of courts indicates that
Courts ~hould =
petitions for th€l issuance of extraordinary writs against Municipal Trial
filed with the Regional Trial Court, and those against
the Regional Trial Courts with the Court of Appeals. A direct invocation
of the Supreme Court's original jurisdiction to issue these writs should
be allowed only when there are special and important reasons therefor
clearly and specifically set out in the petition. (Del Rosario, et al. v.
Montana, et al., G.R. No. 134433, May 28, 2004, reiterating People v.
CA, 301 SCRA 566.)
' . . .
27. Lot 26, situated in Pcblaclon, is covered by TCT No.
6304. It was originally owned by Caluag, along with another parcel
of land with an area of 211/2 hectares. Susana's husband, Aquilino,
was the original tenant-tiller of the agricultural land. The tenancy
relationship dates back to 1946 and continued after the death of
Aquilino through his wife, Susana. In 1957, the house of Susana
was_ transferred to Lot 26 upon the instruction of Caiuag, because
Caluag had given Susana a portion thereof with- an area of 1 000
square meters as home lot. In .1990,- Bautista, et
al., now the
owners of the land, filed an action with the RTC against Susa'na
for the recovery of possession of Lot 26. In filing the case with the
RTC, Bautista, et al., claim that no tenancy relationship exists with
respect to the subject lot since the p_roperty,ls a residential,and not
an agricultural land: They further say that even on the assumption
that a tenancy relationship exists, the lot is not a home lotbecause
a home lot should be constituted on the farm that the tenant is
21
 QUESTIONS AND ANSWERS IN JURISDICTION
REMEDIAL LAW

tilling, not on the residential lot of the landowner.Does the RTC
havejurisdiction?
None, the RTC does not have jurisdiction over the case.
The Department of Agrarian Reform Adjudication Board (DARAS)
has jurisdiction over this case. The doctrine of primary jurisdiction
precludes the courts from taking cognizance of this case. The juris-
diction of the DARAS encompasses "all agrarian disputes, cases, con-
troversies, and matters or incidents involving the implementation of all
agrarian laws." A home lot is incident to tenant's rights. The right to
retain or remove it is an agrarian dispute that should be resolved by the
DARAS. Tenants are entitled to home lots located at a convenient and
suitable place within the landholder's property, where they can construct
and maintain their houses. These home lots will be considered as part
of the tenant's leasehold. Since the primary purpose: of a home lot is
to accord the tenant a dwelling place, there caribe no valid opposition
if the only available place for it is a residential lane. Having situated
the home lot on the subject lot since 1957, Susana can· be ejected
therefrom only for cause or upon proof that the tenancy relationship has
already been severed. Bautista, et al., should prove before the DARAS
their grounds for ejectment. (Bautista, et al. v. Mag-isa Vda. de Villena,
G.R. No. 152564, Sept. 13, 2004.)
e) Cases involving decisions resolutions or orders of the
Commission on Elections and Commi;sion on Audit;
f) Cases where the penalty to be imposed is the dismissal of
a ju ge, officer or employee of the judiciary, disbarment of a lawyer, or
either the suspension of any of them for a period of more than one year
or a fine exceeding P10,000 or both; - ·
!!1 Cases where a doctrine or principle laid down by the Court
En Banc or in division may be modified or reversed·
Ca~'es assigned to a division which in the opinion of at least
three members thereof merit the attention of the Court En Banc and
are acceptable to a majority of the actual membership of the Court En
Banc; and ' , .
. All other ca~es as the Court En Banp by a majority of its
actual membership may deem of sufficient importance to merit its atten-
.tion. (Firestone Ceramics, Inc., et al. v:' CA, et al., G.R. No. 127022,
June 28, 2000; Republic v. CA, G._R. No. 12"f-245, June 28, 2000.)
Justice Gonzaga-Reyes, ln a dissenting opinion in Firestone
Ceramics, Inc. said that the Supreme Court En Banc is not an appellate
court to which a decision or resolution (of a division) may be appealed.

28. What are the cases that the Supreme Court should t·
resolveEn Banc?
Under Supreme Court Circular No. 2-89, dated February 7, 1989,
as amended by the Resolution dated November 18, 1993, the following
are--considei &Jnc ses: .,
. 1. Cases in w~ich the constitutionality or validity of any treaty,
1~temational or execu~1ve agreement, law, executive order, or presiden-
tial decree, proclamation, order, instruction, ordinance, or regulation is
in question;

ti Criminal cases in which the appealed decision imposes the

death penalty;

Cases raising novel questions of law;

d Cases affecting ambassadors, other public ministers, and
consuls;

22 23
 ..• .u•-

RULE 1 - GENERAL PROVISIONS

Employees Organization, et al. v. CA, et al., G.R. No. 109373, March

20, 1995.)
Citing its earlier ruling in Espinoza v. United Overseas Bank Phils,
RULE 1 616 SCRA 353, the Supreme Court said that a petition for issuance
, :·# of writ of possession is not an ordinary suit filed in court by which one
GENERAL PROVISIONS party sues another for the enforcement of a wrong or protection of a
right, or the prevention or redress of a wrong.

1. Define the following: (a)·civil action; (b) criminal action; The proceeding in a petition for a writ of possession is ex parte
and summary in nature. It is a judicial proceeding brought for the benefit
(c) special proceedings.
of one party only and without notice by the court to any person adverse
A civil action is one by which a party sues another for the enforce- of interest. It is a proceeding wherein relief is granted without giving the
ment or protection of a right or the prevention or redress of a wrong. A person against whom the relief is sought an opportunity to be heard. By
civil action may either be ordinary or special. its very nature, an ex parte petition for issuance of a writ of possession
is a non-litigious proceeding. It is a judicial proceeding for the enforce-
Acrimioalactio is one by which the State prosecutes a person for
ment of one's right of possession as purchaser in a foreclosure sale.
an act or omission punishable by law. ·
(LZK Holdings and Development Corporation v. Planters Development
SRecia · gJ are remedies by which a party seeks to Bank, G.R. No. 187973, Jan. 20, 2014.)
establish a status, a right, or a particular fact. (Rule 1, Sec. 3.)
3. What is the nature of a disbarment case? Is it a criminal
2~ What are the distinctions · between civil action and or a civil action?
special proceedings? A disbarment case is sui generis or it is neither purely civil nor
The following are the distinctions: purely criminal, but is rather an investigation by the Supreme Court into
the conduct of its officers. (Cojuangco Jr. v. Palma, Adm. Case 247.4,
a) a "vii a · reis adversarial as it involves two parties, namely, Sept. 15, 2004.)
the plaintiff and the defendant; ~al proce.e:ctiag are not necessarily
adversarial as it may involve only one party who is the petitioner; and · 4. How is a civil action commenced?
b) a gy.itact@] is a formal demand of a right by one against A civil action is commenced by the · o the ori inal co lai
another; while s · ~eJfio~ are but petitions for a declaration of ln:.coln:t. If an additional defendant is impleaded in a later pleading, the
a status, a right, or a particular fact. action is commenced with regard to him on the date of the filing of such
Thus, where a party seeks to 'recover a property from another, later pleading, irrespective o_f whether the motion for its admission, if
his remedy is to file an action. But, where his purpose is to seek the necessary, is denied by the court. (Rule 1, Sec. 5.) . ·
appointment of a guardian for an insane person, his remedy is a But as held in Dionisio v. Linsangan, G.R \No. 178159, March 2,
special p~ocee~ing to establish the fact or status of insanity calling 2011, an amended complaint that changes the plainti!f's ~use of action
for guard1ansh1p. So, also, a petition for liquidation of an insolvent is technically a new complaint. Consequently, the action rs deemed filed
~rporation is a sp~cial proceeding because what the petition seeks on the date of the filing of such amended complai~t, _no~ on the date _of
is mere~y a de~larat1on by the trial court of the corporation's insolvency the filing of its original version. Thus, the stat~te of hm1tat10~ resumes its
so that its creditors may be able to file their claims in the settlement of run until it is arrested by the filing of the amended comp!a1nt. However,
the corporation's debts and obligations. (Pacific Banking Corporation an amendment which does not alter the cause of action. but merely

24 25
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
supplements or amplifies the facts previo~s!y alleged ~oes not affe,ct
the reckoning date of filing based on ~he original complaint.
Note, however, that a complaint is deemed filed ~nly upon pay-
ment of the docket fee regardless of the actual date of filing of the com-
plaint in court. (Magaspi, et al. v. Ramolete, G.R. No. L-43840, July 20,
1982 [115 SCRA 193).)
But if plaintiff has been authorized to litigate as an indigent
litigant, he is exempted from the payment of docket fee when he files
his complaint.
5. On July 16, 2001, P filed a complaint with the Regional
Trial Court against X who, in due time filed his answer. On
September 16, 2001, P filed an amended complaint to implead Y as
an additional defendant. Accompanying his amended complaint
was a motion for its admission. When is the action deemed com-
menced?
As to X, the original defendant, the civil action is deemed com-
menced on July 16, 2001. But with regard to Y, the additional defendant,
it is deemed commenced on September 16, 2001. Section 5 of Rule 1
states: "A civil action is commenced by the filing of the original com-
plaint in court. If an additional dMendant 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."
It is important to know the rule because it is the commencement
of the action that interrupts the period of prescription as to the parties
to the action. (Cabrera v. Tiano, G.R. No. L-17299, July 31, 1963 [8
SCRA 542].) • whole world that the 'proceeding has for its object to bar indefinitely all
6. l;_xplain:~ct)Rn in rem,OJction quasi In rem, ~tion in
personam,1.1:jeal action,,Sersonal action.
An action ·n rem is an action against all who might be minded to
mak~ an objection of any sort against the right sought to be established.
The Judgment rendered in an action in rem binds the whole world. It is
an action against the thing itself. · are in rem. Such proceedings, ~~ w~II as the ti~le issued as a resul_t
An action~~ I~ ,;_e is .an action against an individual although
the purpose of the suit 1s to subject his interest in a particular property to
26
RULE 1 - GENERAL PROVISIONS
the o?~igatio~ burdening the property. The judgment rendered in action
quasi m rem is conclusive only between the parties.
An action n R_ersona is an action to establish a claim against a
particular person on the basis of his personal liability, and the judgment
that may be rendered will bind him personally.
A ersona actioa rs an action where the plaintiff seeks the reco-
very of personal property, the enforcement or rescission of a contract or
the recovery of damages.
A real ·action s an action affecting title to, or for the recovery of
possession of, real property or any interest therein, or for partition or
condemnation of, or foreclosure of a mortgage on, real property.
As to object, actions are classified into actions in rem, actions
quasi in rem, and actions in personam.
As to· basis, actions are classified into real actions and personal
actions.
Examples:
An action to foreclose a real estate mortgage is a real action. But,
an action to cancel the annotation of the mortgage in the certificate of
title of the land is a personal action.
A petition for cancellation or correction of entries in the civil reg-
istry under Rule 108 is a proceeding in rem - a proceeding against
a thing and not against a person. The decision on the petition binds
not only the parties thereto but the whole world, An in rem proceeding
is validated essentially through publication. Publication is notice to the
who might be minded to make an objection of any sort against the right
sought to be established. It is the publication of such notice that brings
the whole world as a party in.the case and vests the court with jurisdic-
tion to hear and decide it. (Barco v. CA, et al., G.R. No. 120587, Jan.
20, 2004.)
Land registration proceedings under Act N~. 4~6 (now P.D. 1529)
thereof are binding and conclusive upon the whole world. (Gestosam,
et al.v: Insular Development Co., et al., L-21166, Sept. 15, 1967 [21
SCRA 114].)
27
r RULE 2 - CAUSE OF ACTION
RULE2
CAUSE OF ACT~ON
1. What is the basis of an ordinary civil action?
Every ordinary civil action must be based on a cause of action.
(Rule 2, Sec. 1.)
2. What is a cause of action?''
A cause of action is the act or omission by which a party violates
a right of another. (Rule 2, Sec. 2)
3. Whatare the requisites of a cause of action?
The following:
a right in favor of the plaintiff by whatever means and under
whatever law it arises or is created;
) an obligation on the part of the defendant to respect and not
to violate such right; and
c an act or omission on the part of the defendant constituting
a violation of plaintiff's right. (Navoa v. CA, G.R. No. 59255, Dec. 29,
1995 [251 SCRA 545].)
4. Distinguish cause of action from right of action.
The term " ·ig · " is the right to commence and maintain
an _action. Right of ~cti?n is a remedial right belonging to some persons,
whrle itaus.e oi:a o rs a formal statement of the operative facts that
give rise to such remedial right. Right of action depends on substantive
law, while cause of action is a matter of statement and is governed by
law of procedure. (De Guzman v. CA, G.R. Nos. 92029-30 Dec 20
1990 [192 SCRA 507}.) ' · '
5. What is splitting a single cause of action?
It is the process of dividing a claim or demand into two or more
parts and bringing suit for each of these parts.
30
b
6. What is the rule on splitting a single cause of action?
The rule is that a party may not institute more than one suit for a
single cause of action.
If two or more suits are instituted on the basis ~(the same cause
of a_ction, the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others. In other words, the
ground for dismissal is either · · nde [if the actions are still pending)
or s ·ucf«:afi> [if the judgment in one case has already become final].
(Rule 2, Secs. 3 and 4.)
7. What determinessingleness of a cause of action?
ction ex delict , the singleness of a cause of action lies in the
singleness of the delict or wrong violating the right of another person.
If, however, Q!J.IY one inj11cy results from several wrongful acts, only one
cause of action arises. (Joseph .v. Bautista, et al., G.R. No. L-41423,
Feb. 23, 1989.)
In ~=...:g.==~
for a single and indivisible contract, only one cause of action
arises from a single breach or several breaches; and
t for a contract providing for several obligatioms, each
obligation not performed gives rise to a single cause of action. But
if upon the filing of the complaint several obligations have already
matured, all of them shall be considered as integrated into a single
cause of action. (I Moran, Comments on the Rules of Court, 19
[1952].)
8. X mortgaged his land to Y to secure the payment of a
loan in the sum of P1 Million. When the debt became due, X failed
to pay despite repeateddemands.Y then instituted an action for
the payment of the sum of P1 ·Million. During the pendency of the
action for collection, Y filed an action to foreclose the mortgage. If
you were X, what would you do?
If I were x I would move to dismiss the action for foreclosure on
the ground of /itis pendentia. Y. had only one cause of action, and he
cannot split it into two or more parts and bring suit for each part. ~
a mortgagee sues for collection; .he thereby abandons the mortgage.
(Quiogue, et al. v. Bautista, et al., G.R. No. L-13159, Feb. 28, 1962.)
31
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Where the debt is secured by mortgage, and the debtor defaults
in the payment of his debt, the mortgagee has the choice of one of two
remedies, but he cannot have both. He may either: (aYforeclose the
mortgage, or (b)iile an ordinary action to collect the debt. Although he
has two choices of remedies, he has only one cause of action, which is
the non-payment of the debt. (Caltex Philippines, Inc. v. /AC, et al., G.R.
No. 74730, Aug. 25, 1989.)
~ . .
Similarly, when a party files a criminal case for violation of B.P. 22,
his civil action for the recovery of the amount of the dishonored check
is impliedly instituted therein pursuant to Section 1 (b) of Rule 111 of the
2000 Rules on Criminal Procedure. When the mortgage-creditor files a
criminal case for violation of B.P. 22 against the mortgage~debt<;:>r, he is
deemed to have already availed himself of the' remedy of collection suit,
and following the rule on alternative remedies of a mortgage-creditor,
heisbarred from subsequently resorting toanactlonfor foreclosure.
(Chieng v. Santos, G.R. No. 169647, Aug. 31, 2007:) ··· ·-· · · ·· ·· · · · --
9. May a party join in one pleading several causes of
action?
Yes, subject to the~g.:conaitions:
. determining whether or not more than one cause of action is pleaded. If
The party joining the causes of action shall comply with the
rules on joinder of parties; · injury, items of claims or theories of recovery are set forth. Where two or
b The joinder shall not include special civil actions or actions
governed by special rules;
. When: the causes of action are between the same parties
but pert~in to dr~erent v_enues or jurisdictions, the joinder may be
allowe~ 1~ the ~e~,o~a.l Trral Court provided one of the causes of action
falls wrthrn the jurisdiction of said court and the venue fies therein; and
Where the claims in all the causes of action are principally
for_ r~co~e~ of money, the aggregate amount claimed shall be the test
of iunsdlcuon. (Rule 2, Sec. 5.) · . N?, he is not obliged to file two separate complaints. Since Y's
(The fore~oing are the requisites of joinder of causes of action.
Thus, you '!1entron all these requisites if the question is rephrased this
wax: What rs the rule on joinder of causes of action?)
. The ~u~~ose of the rule allo~ing .joinder of causes of action is to
avord multrphcrty of suits. · ··
32
RULE 2 - CAUSE OF ACTION
10. What Is jolnder of causes of action? What are the tes~
to determine whether more than .one cause of action is alleged m
the complaint or pleading?
A joinder of causes of action is the uniting of two or more demands
or rights of action in a complaint. The question of the joinder of causes
of action involves in particular cases a preliminary inquiry as to whether
two or more causes of action are alleged. In declaring whether more
. than one cause of action is alleged, the main thrust is whether more
than one primary right or subject of controversy is present. Other tests
are whether recovery on one grou.nd would bar recovery on the 'other,
whether the same evidence wo'ulc:1' support the other different counts
and whether separate actions could be maintained for separate relief;
or whether more than one distinct primary right or subject of controversy
is alleged for enforcement or adjudication.
A cause of action may be single although the plaintiff seeks a
variety of remedies. The ..mere fact that the plaintiff prays for multiple
reliefs does not indicate that he has stated more than one cause of
action. The prayer may be an aid in interpreting the petition and in
the allegations of the complaint show one primary right and one wrong,
only one cause of action is alleged 'even though other matters are
incidentally involved, and although different acts, methods, elements of
more primary rights and wrongs appear, there is a joinder of causes of
action. (Dam7o and Cristina Decena v. Pedro and Valeria Piquero, G.R.
No. 155736, March 31, 2005.) . ·
11. X owed Y P150,000.bas~d on a promissory note dated
July 16, 2000, and another PSOO,o~.o based on a promissory· note
dated September 16, 2000. Both debts are now due. Is Y obliged
to file two separate complaints against X, one for collection of the
sum of P150,000and another for collection of the sum of P500,000?
c(arms rn both ca.use~ of a_ction are for recovery of money, he may join
hrs causes of action rn a srngle complaint - in which case he will have
to ~le it in the Regional Trial Court because the aggregate amount
claimed shall determine the jurisdlctton of the court. ·
file B.ut jo_in_d~r. .9.f -~'-!~.~~ .Pf.~.~tion,J~ .. rn~r~Jy .P.~rmis§i~~- .. $0.J1e may
two separate complaints - rn which event his complaint involving
33
 QUESTIONS AND ANSWERS 11../
REMEDIAL LAW RU E !2 - CAUSE OF CTION

the amount of P150,000 must be filed with the Munlcir,al Trial Court and
his other complaint involving the amount of PS00,000 with the Regional
Trial Court.
12. P filed a complaint against 0, alleging two causes of
action: one tor torclble entry, and the other for support. Are the
cau es of action properly joined?
No. the cau ... es of action are not properly joined because forcible
ent i governed by special rules. On the other hand, there are rules
that are applicable only to an action for support.
13. May an action for quieting of title (which Is a special
civil action governed by Rule 63) and an action for declaration
of nullity of title (which is an ordinary civil action) be joined f n
one complaint? May the complaint be dismissed on ground of
misjoinder of causes of action?
An acti_on for qu!eting of title is a special civil action governed by
~u'.e 63_. while an action for declaration of nullity of title is an ordinary
avll acnon. They may not be joined in one complaint because one of
the conditions for joinder of causes of action under Section 5, Rule 2
of th~ 19~~ Rul_es of Civil Procedure is that the joinder shall not include
specat CtVll actions or actions governed by special rules.
. . A complaint, howe_ver, may not be dismissed on ground of mis-
~o~nder of causes_ of action. While Section 5, Rule 2 requires that the
~omd~r shall not ,~elude special civil actions or actions governed by
~I rules,_ Se~on 6 of the same Rule provides that misjoinder of
cause , of a~on rs not a ground for dismissal of an action. A misjoined
use of action may, on motion of a party or on the initiative of the
'::~i>.
b: sev,e~ed and proceeded with separately. (Roman Catholic
ts op o an Fernando, Pampanga v. Soriano et al G R N
15?., Aug. 17, 2011) ·• · · o.
II
. i ~4. The rule therefore is that if there Is mlsjolnder, the mis-
/:; '
( Yes)
"Irr Ada, et al. v; Bey/on. G.R. No. 182 35. Aug. 13. 2012, the
Supreme Court said that a cause of action ror par Ilion nd a cause
of action for rescisslon cannot be joined in a in le complaint because
partition is as ecial civil action governed by Rule 69. while an action for
rescission is an ordinary civil actlon. But if these two causes or action
are joined in one complaint. and the misjoined cause of · ction is not
severed, the court may render judgment on all these causes of action.
The aforecited case of Ada, et al. v, Baylon has rsi1eratad the
rule that · ·
The Supreme Court went on to explain that courts have the power,
acting upon-the motion of a party to the case or sou sponto. to order
the severance of the misjoined cause of action to be orocsedec with
separately. However. if there is no objection to the improper [oinder er
the court did not motu proprio direct a severance. then there ~x,sts no
bar in the simultaneous adjudication of all !he erroneously join ·d causes
of action. The High Tribunal. however, emphasized that the foregoing
rule only applies if the court trying the case has jurisdiction over all the
causes of action therein notwithstanding the misjoinder of the same. If
the court trying the case has no jurisdiction over a misjcined cause of
action, then such misjoined cause of action has to be severed from the
other causes of action, and if not so severed, any adjudication rendered
by_ the court with respect to the same would be a nullity.

:~:~:~t
Jo ~e cause of action may be severed from the other causes o
su~pose there is mlsjolnder, and the mlsjolned caus:
s no severed from the other cause t ti
I
court render judgment on all these causes of :c~lo~~ on, may the
t
I
I

34
35

RULE3
PARTIES TO CIVIL ACTIONS
1. Who may be parties in a civil action?
Whether as plaintiff or as defendant, only the following may be
parties in a civil action: a) natural persons; b) juridical persons; or c)
entities authorized by law. (Rule 3, Sec. 1.)
The proceedings in a civil action are necessaril~ On.
one side is the plaintiff; on the other the defendant.The plaintiff is one
who has an interest in the subject of the action and in obtaining the
relief demanded. He may be the daimant in the original complaint, the
counter-daimant in a counterdaim, or the cross-claimantin a cross-
daim. On the other hand, the defendantis one who has an interest in
the controversy adverse to the plaintiff.He may be the original defend-
ing party, the defendantin a counterdaim,or the cross-defendantin a
cross-daim.
2. May a sole proprietorship be a party in a civil action?
. ~becausea ~le proprietorshipis neither a natural person nor
a Jun 1c::al_~rson. It is not also an entity authorizedby law to bring or
defendsuit in court.
If, for example, a sole proprietorshipfiles an action in court the
remedy of the defendantis to move for the dismissal of the complaint
on the groundof lack of legal capacityto sue.
. Plaintiffs re~edy, on the other hand, is to amend his complaint to
1mplead the propnetoror ownerin substitutionof the sole proprietorship.
If plaintiff does not amend his complaintand defendant does not
also move = th~ dismissal of the complaint, the defendant cannot
anymorer~1se the issueof lack of legalcapacityto sue on appeal Since
!e ddefect is only forma!, an amendmenteven at that stage may .still be
1/ de ~ursu?ntto Section 4, Rule 10 which provides that a "defect in
e es1gnation of the p~rtiesand other.clearly clerical or typographical
errors may be summarily corrected by the court at any stage of the
36
RULE 3 - PARTIES TO CIVIL ACTIONS
action, at its initiative or on motion, provided no prejudice is caused
thereby to the adverse party." (Yao Ka Sin Trading v CA, et et., G.R.
No. 53820, June 15, 1992.)
3. Give examples of "entities authorized by law."
Example~- ~;~:-(~)-,;~~ organizations; (b) entities without legal
personality when sued as defendants. (Labor Code, Art. 242; Rule 3,
Sec. 15.)
4. X, Y, and Z are doing business under the name and style
"XYZ Enterprises." XYZ Enterprises has no juridical personality
because it has not been organized as a corporation or as a
partnership. May XYZ Enterprises sue - or be sued - under its
name?
Being an entity without legal personality, XYZ Enterprises cannot
sue under its name, but it may be sued. If it is sued, and it files an
answer,then the individualnames and addresses ofX, Y, and Z must all
be revealed. (Rule 3, Sec. 15.) Any adverse judgment shall be against
all of them as required by Section 6 of Rule 36 which reads: "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."
Suppose XYZ Enterpriseswants to go to court to.collect upon a
promissory note, but as noted above it cannot sue as an entity, what
is its remedy? Answer: X, Y, and Z, the persons composing the said
entity, must bring the suit in their own names, not in the name of XYZ
Enterprises.
5. May an action vbrought by a minor be dismissed on the
ground of Jack of legal capacity to sue?
- .@ Under Section 5. of Rule 3, 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· ha~ none, a@uard1an ad lite""iiA '
The appointment of a guardian ad /item may be sought 'in the
same action if the minor or the person alleged to be incompetent has
no parents or guardian. It is not 'necessary that a person be judicially
decra.red an incompetent in order that -a guardian ad /item rnaybs
appointedto assist him; it is enough that he is allegedjo be incompetent.
37
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Even if the minor or incom~etent has alr~ad~ a,. guardla~, a
guardian ad /item may still be appointed to assist him 1f the su1t1 Is
against his own guardian.
6. Giveexamplesof "Juridicalpersons" as parties.
Partnerships and corporations are juridicaf persons, The State
and its political subdivisions, as well as government-owned or con-
trolled corporations, are juridical persons. The well-entrenched rule,
however, is that the State may not be sued without its consent, subject
to some exceptions.
-· . ' . ~ ; .
a
7. May_ a foreign corporation(or, for~ign erytity\~ith iegal
personality)sue and be sued in-thef>hilippine~?· . ' . :
, Under Section 33 of the Corporation Code, a foreigri corporation
transacting business regularly in the Philippines without a license
cannot sue, but it can be sued in any court or administrative agency in
the Philippines.
. A foreign ~rporation transactinq'business regularly in the Philip-
~mes may acquire the standing to sue in the Philippines by securing a
. .
license to transact business in the Philippines.
But if the foreign corporation conducts an isolated business not
regular, it needs no license, and it may sue upon such isolated business,
~ _stated in Agilent Technologies Singapore (PTE) Ltd. v. Integ-
rated SJl,co~ T~chnology ~hilippin~s Corp., G.R. No. 154618, April 14,
20_~. the_ ~n~c1ples regarding the right of a foreign corporation to bring:
suit m Phllippins courts are: · · ' .;
. a) . if a fo~eign corporation does business in the Philippi~~s
without a license, it cannot sue before the Philippine courts; .
. b~ if a fore_ign corporation is· not ·doing business in the Phili -
pines, it needs no license to sue before Ph IT . -. . P of USJ10,4,151.00.Thereafter, Chubb & Sons, Inc., filed with the
transa r ippme courts on an isolated
transa~t;~~-o~~-~- ~~~e ~-~~~!ion entirely independent of anybusiness
I •
· c) if a f~;~i~~- ~-ri~;~tion do b · · · · fore, cor oration not doing business in the Phili ines, but it
without a license a Philippin T · es usmess m the Philippines
with· said corpor~tion may oee e~t~en or entity which ~as contracted
corporation's corporate personal' ppeo fro~ challenging the foreign
corporation] before Philippine cou1%/~n~ suit brought [by the foreign
38
RULE 3 - PARTIES TO CIVIL ACTIONS
'• .
d) if a foreign corporation does business in the· Philippines
with the required license, it can sue before Philippine cou.~s on a.nr
transaction.
8. What Is the "Isolated Transaction Rule"?
It is the rule that authorizes a foreign corporation conducting an
isolated business, not regular, to sue upon that isolated business, though
it has no license to do business in the Philippines. (Commissioner of
Customs v. KMK Gani, Jndrapa/ & Co., G.R. No. 73722, Feb. 26, 1990.)
~ 9. Lorenzo Shipping (a domestic corporation) loaded and
. ~ \ carried 581 bundles of steel pipes on board its vessel MN Lorcon
'('$)~ 'from Manilato Davao.LorenzoShipping issued clean bills of lading .
for the account of Sumitomo Corp. (a foreign corporation), the
consignee of the goods. Sumitomo Corp. insured the goods with
Chubb & Sons, Inc. (a foreign insurance corporation). From Davao,
Gearbulk,Ltd. (a foreign corporation licensed as a common carrier
and doing business in the Philippines through its agent Philippine
TransmarineCarrierswhich is a domestic corporation) was to carry
the.goods on board its vessel MN San Mateo to the United States
for the account of Sumitomo Corp. But when the shipment was
unloaded in Davao, Philippine Transmarine Carriers discovered
sea water fn the hatch of MN Lorcon and found the steel pipes
submerged in it. Gearbulk, Ltd. loaded the steel pipes on board
its vessel. MN San Mateo for carriage to the United States, but it
issued bills of lading marked "All Units. Heavily Rusted." While
the cargo was in transit from Davao to the u,s., Sumitomo sent a
letter 'to Lorenzo Shipping, informing it that Sumitomo would be
filing a claim basedon the damagedcargo once such damage had
been ascertained.When the cargo arrived in the U.S., Sumitomo
rejected the damaged pipes and filed a marine insurance claim
with Chubb & Sons, Inc., which the latter settled in the amount
RTCa complaint for collection of a sum of money against Lorenzo
Shl~ping. In its complaint, Chubb & Sons, Inc. alleged that it is a
Is suln under an isolate transact on. orenzo Shipping submits
the followlnq counter argumen s: a) that since Sumitomo is a
foreign corporation doing business in· the Philippines without a
license'and does not have the capacity to sue before Philippine
39
 .,,,
iTIJ"l,I
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
courts, Chubb & Sons, Inc. (being a mere subrogee) could not also
sue before Philippine courts; (b} that Chubb & Sons, Inc, was not
suing on an isolated transaction. · ,. ;
Does Chubb & Sons, Inc. have the capacity to sue before the
Philippine courts?
Is Chubb & Sons, Inc. the real party in interest? :i
,I.J_
Is Chubb & Sons suing on an isolated transaction?
Is Lorenzo Shipping negligent in carrying the subject cargo?
What is the nature of a bill of lading?
¥es, Chubb & Sons, Inc., has the capacity to sue before the Philip-. . "
pine courts. Assuming that Sumitomo cannot sue in the Philippines,
it does not follow that its subrogee, Chubb & Sons, Inc., has also no
capacity to sue before Philippine courts. Chubb & Sons, Inc., has proven
its capacity to sue by showing that, although it is not doing business in
the Philippines, it is suing only under an isolated transaction. A foreign
corporation needs no license to sue before Philippine courts on an
isolated transaction. .
Furthennore, Chubb & Sons, Inc. is the real party-in-interest. ·
Where an insurance company pays the insured of the loss it suffered '
the insurer-subrogee is the only real party in interest and must sue i~
its own name to enforce its right of subrogation against the third-party
that caused the lo~s. This is be~use the moment the insurer has fully
co'!1pen~~ted the insured, the insurer is subrogated to the insured's
claim ansinq from such loss: The insurer as subrogee becomes the
owner of the claim and is thus entitled to the entire fruits of the action.
In the problem presented, Chubb & Sons, Inc., was suing on its own
behalf to enforce its right of subrogation.
Lore_nzo Shipping argues that Chubb & Sons, Inc., is not suing
under_ an 1solat~d transaction because the steel pipes are covered by
two brlls of l_ading; hence, according to Lorenzo Shipping, these are
two tr~nsact1ons already. Lorenzo Shipping is wrong. These two bills
of lading a~e bas~d on a single marine insural}_c~ .Qolicyj_hat Chubb &
Sons, Inc. issued in favor of Sumitomo. The executionof the r · .
single act, Still an isolated transaction. · po ICY IS~-
..
•
. . Lorenzo Ship.pi~g i~ negligent. When the steel pi~es w~re.loaded.
on board Lorenzo _Sh1pp1ng's MN _Lorco~ in Manila, t~ey were in good
40
:1Uj
RULE 3- PARTIES TO CIVIL ACTIONS
condition. So it was that Lorenzo Shipping issued clean bills of l~d!nt
·'A clean bill of lading constitutes prima facie evidence of the receip Y
the carrier of the goods as therein described.
- A bill of lading aside from being both a contract and a receipt, is
also a symbol of th~ goods covered by it. A bi!I of lading }hat h~~II n;
notation of any defect or damage in the goods is called a cle~n R N
0·
lading." (Lorenzo Shipping Cor. v. Chubb & Sons, Inc., et al., " ·
147724, June 8, 2004.) ·
· 10. Who is a real party in interest?
A real party in interest is one who stands to be benefi~ed or injur~d
·by the judgment in the suit, or the party entitled to the avails of the suit,
,(Rule 3, Sec. 2.)
A real party in interest may either be an indispensable party or a
aeqessary · partv.
· The rule, requires that every action must be prosecuted or de-
fended in the name of the real party in interest. Thus, only parties to a
contract may sue or be sued upon that contract. A stran er cannot sue,
except if the contract contains in his favor ti ulation our autrw
A private person is a real party_ in interest in an action to question
the validity of a law.appropriating public funds for a private purpose.
(Pascual v. Secretary of Public Works, L-10405, Dec. 29, 1960.)
In Caravan Travel and Tours lntemationa/, Inc. v. -Abejar, G.R.
No. 170631, Feb. 10, 2016, it was held that that the paternal aunt who
was the person who raised the victim (then over 18 at the time she was
run over by Caravan's vehicle) is a real party-in-interest in an action
for damages. The aunt's capacity to file the complaint against Caravan
sterns from her having exercised substituted parental authority based
on Art. 216 of the Family Code as the victim had no more parents,
gran~p~rents, and brothers and sisters. That the victim was already
,emancipated upon turning 18 does not affect the aunt's right to file the
complaint because she continued to care and support the victim even
~fter she had turned 18. · :·
. In Oposa v. Factoran, G.R. No. 101083, July 30, 1993 (224 SCRA
7~~~· it wa: held that u~der the principle of lnter-qenerational respon-
sibility and inter-qenerationat justice, minors are parties in interest in an
action to annul timber licenses issued by the Bureau of Forestry. ·
41
 QUESTIONS AND 'ANSWERS IN
REMEDIAL LAW
The issue of whether marine mammals (such as toothed whales,
dolphins, porpoises, and other cetacean species) ~ave le~al standi.ng
to sue as real parties in interest has been resolved m Resident Manne
Mammals, et al. v. Secretary of Department of Energy, et .al., G.R. No.
180771, April 21, 2015, which ruled. that "the need to grve Resident
Marine Mammals legal standing has been eliminated by our Rules,
which allow any Filipino citizen, as a steward of nature, to bring a suit
to enforce our environmental laws. Under the Rules of Procedure for
Environmental Cases, any Filipino citizen may file a "citizen suit" in
representation of others, including minors or generations yet unborn, to
enforce rights or obligations under environmental laws ..
· The concept of 'real party in interest" is not the same as "legal
standing" (or locus standi, or standing to sue). Legal, standing, as a
realm of public law, may allow private parties to institute actions
challenging the validity .of governmental action for violation of private
rights or constitutional principles. Courts apply the doctrine of legal
standing by determining whether the party has a direct and personal
interest in the controversy and whether such party has sustained or
is in imminent danger of sustaining an injury as a result of the act
complalhedof,' a-·standar~ which is' olstlnctfrorn the concept of real
party ln'lnterest.Thils.·u;e apphcattoh of the doctrine on legal standing
necessarily involves a preliminary 'consideration of the merits of the
case and is not purely a procedural issue. (Agan Jr., et al. v. Philippine
International Air Terminals Co., lnc., ·et al., G.R. Nos. 155001/155547/
155661, Jan. 21, 2004.)
M~eal party-in-interest" isnot also the same as "capacity to sue. n
Capacity to ~ue _de~ls wit~ a situation where a person who may have a
ca~s: of action rs drsqualrfied from bringing a suit under applicable law
or rs rncompete~t to bring~ s~it_or is under some legal disability that
would_ prevent hrm from marntarnrng an action unless represented by a
g~ardran_or guardian ad /item. (Agan Jr., et al. v. Philippine International
Atr Termmals Co., Inc., et al., G.R. Nos. 155001/15554Z'1556611
J 1968 [23 SCRA 760].)
21, 2004.) , an.
Capacity to sue is ~ right personal to its holder. It is conferred by
I
aw an~ ~ot_ by th: parties. Lack of legal capacity to sue means that
the plarntrff rs not rn the exercise of his civil rights or do t h
the necessa rn t" ,
ry qua , rca ran to appear in the case or does t h
es no ave
th
character or representatio h cl . , no ave e
disability to sue, such as 0~ a~ a,~~- It_ ref~rs ~o th~ pl~intiff s general
°
un mrnonty, rnsarnty, incompetence,
42
RULE 3- PARTIES TO CIVIL ACTIONS
·
lack of juridical personality, or any other disqualifications of a party.
(Lorenzo Shipping Cor. v. Chubb & Sons, Inc., et al., G.R. No. 147724,
June 8, 2004.)
11. Supposethe suit Is brought not in the name of or against
the real party-in-interest,may it be dismissed?
Yes, it may be dismissed on the ground that the complaint states
no cause of action. (Tanpingco v. lAC, G.R. No. 76225, March 31, 1992
[207 SCRA 652].)
The term "real party-in-interest" applies not only to the plaintiff bu.t
to the defendant as well. The suit may, therefore, be dismissed if neither · : ,
of them is a real party-in-interest. If the suit is brought not in the name
of or against the real party in interest, a motion to dismiss may be filed
on the ground that the complaint states no cause 9f.~.~.i91':1:. (T@'(.'?,I.Wide
As.sQcia_(eci_$f:}/~s [Phil.], et al. v. CA, et al., G.R. No. 77356, July 15,.
1991.)
12. X appointed Y as his attorney-in-fact to sue and bring
action for the protection of X1s,rights:.and·.interests·-0ver a certain
parcel of land. y filed a complaint against z to recover possession
of the said parcel of land. The complaint that was filed is entitled:
Y as attorney-in-fact of X, plaintiff, versus Z, defendant. Z filed
a motion to dismiss on the ground that the complaint states no
cause of action. Should the motion be granted?
Yes, the motion should be granted. It is clear that the complaint
states no cause of action because it is being prosecuted not in the
name of X, who is the real party-in-interest, but in the name of Y who
is a mere attorney-in-fact. The complaint should have been entitled:
X, represented by his attorney-in-fact Y, plaintiff, versus Z, defendant.
(Filipinas Industrial Corp. v. San Diego, G.R. No. L-22347, May 27,
In the problem presented, Y lacks legal personality to sue because
he is not the real party-ln-lnterest. Where the plaintiff (or the defendant)
has no legal personality to sue. (or be sued), the ground for dismissal
of the action is that the complaint states no cause of action, not lack of
legal personality to sue. It should be noted that "lack of legal personality
to sue" is not among the grounds mentioned in Section 1, Rule 16 upon
which a motion to dismiss may be filed. ·
43

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
I
To repeat, if the suit is brought not in the name of or against the
real party-in-interest, a motion to dismiss may be filed on the ground
that the complaint states no cause of action. (Travel Wide Associated
Sa/es {Phil.), et al. v. CA, et al., G.R. No. 77356, July 15, 1991.)
13. Whois the realparty-in-interestif the action is prosecuted
or defendedby a representativeparty?
Where the action is allowed to. be prosecuted or. defended by a
representative party, the beneficiary shall be included in the title of the
case and shall be deemed to be the real party-in-interest. (Rule3, Sec. 3.)
~'· _. The rule now makes it mandatory to implead the beneficiary.
A representative party may be: (a) a trustee of an express trust;
(b) a guardian; (c) an executor or administrator; or (d) a receiver. An
assignee in insolvency is also a representative party.
14. Who is the real party-in-interestin an ordinary civil action
for declarationof nullity of free patents and certificates of title?
Whatabout in action for reversion?
P(C.lo.rttno11 Cl'" ,Jr.A}(~ v '((),/.(.¥t10-/\
. Jn_an action for declaration of nullity of free patents and certificates
~f title, the real p~rty-in-interest is the plaintiff who alleges a pre-existing
~ght of ownership over the land in question even before the grant of
~tle to ~e-defendant~Wtiilenrn:in actlon fofi'e'7ersion·,-lhe·real party-ln-
~nte~est is the State, and the action for reversion should therefore be
rnstrtuted by the Solicitor General.
. Anot~er distinction between the two is that an action for declara-
t~on of nullr~ ~f free patents and certificates of title requires an allega-
trons of plaintiffs ownE:~sb!l?..°(~h~.s.xmtested lot prior to the issuance of
th~ free_pat~nt~ and ce~ificates of title,.as.well.as defendant's fraud or ·
mrstak~, whrle ~n an actron _for reversion, the pertinent allegations in the
~mplarnt admrt that the drsputed land is owned by the State. (Tancu~
tien, et al. v. Gempesaw, et al., G.R:. No. 149097, Oct. 18, 2004.) . parties?
. ~ 5:
The rule requires the husband and the wife to sue or be
suedJointly.What is the reason for the rule?
. The reason is that the administr~tion and enjoyment of the corn-
;~~~:;:;:~~~: t; I
p~o~~~y
e Jorn y.
(o;hthe con~ugal partnership belongs to
e Family Code, Arts. 9f3 and 124.)
44
I
I
I RULE 3 - PARTIES TO CIVIL ACTIONS
16. Suppose the wife (or the husband) sues or is sued alone,
Is the non-Joinderof the other spouse a ground for the dismissal
of the case?
~he defect of non-joinder of the other spouse may be cured
by ark~ment. . .
But if the court issues an order directing the plaintiff to amend
the complaint so as to include the other spouse, but the plaintiff fails
or refuses to do so, the complaint may be dismissed for failure of the
plaintiff to obey an order of the court under Rule 17, Section 3.
17. Who is an indispensableparty? - a necessary party?
An indispensable party is a party-in-interest without whom no final
determination can be had of an action. (Rule 3, Sec. 7.)
. A necessary party is one who is not indispensable but whoouqht
to be joined as a party if complete relief is to be accorded as to those
already parties, or for a complete determination or settlement of the
claim subject of the action. (Rule 3 Sec. 8.)
18. W!lo are the indispensable parties in an action for
partition?
.-· · · In an action for partition of property held in co-ownership, all the
co-owners are indispensable parties as the partition will affect all of
them. If one co-owner is omitted, any judgment of partition that may
be rendered is void. (Salvador v. CA, et al., G.R. No. 109910, April 5,
1995.)
·, · 19: In an action for partition of co-owned property, all co-
owners are indispensable parties. What about in an action to
recover a co-owned property, are all co-owners indispensable
Pursuant to Article 487 of the Civil Code and relevant jurispru-
dential rules, any one of the co-owners may bring an action, any kind
of action, for the recovery of a co-owned property. Therefore, only one
of the co-owners, namely the co-owner who filed the suit for recovery
of the co-owned property, is an indispensable party thereto. The. other
co-owners are not indispensable parties. They are not eyen necessary
45
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
parties, for a complete relief can be accorded In the suit even without
th eir· pa rtictpation
1 ,
since the suit is presumed to t,av. e been filed for the
• • d G
benefit of all co-owners. (Carandang v. Heirs of Qumno A. e uzman, ·
etc., G.R. No. 160347, Nov. 29, 2006.)
As explained in Baloloy v. Hular, G.R. No. 157767, Sept. 9, 2004,
478 SCRA 80 Article 487 of the Civil Code "covers all kinds of actions
for the recovery of possession, including an accion publiciana and a
rewindicatory action."
20. p files an action against D for recovery of possession of
a real property. D alleged In his answer that he was occupying the
property as tenant of C. Is C an indispensable party?
Yes, C is an indispensable party. This is so because without C,
any judgmen that P might obtain against D would have no effect, for it
would not be binding upon and cannot be executed against C, against
whom the plaintiff has to file another action if he desires to recover his
property effectively. (The Leyte-Samar Sales Co., et al. v. Cea, et al.,
G.R. No. 5963, May 20, 1953.) ' event) or series of transactions (or events); and
21. Give other examples of indispensable parties.
a) In an action for reconveyance, the owners of the property
over which reconveyance is asserted are indispensable parties be:
cause without them no relief is available and no valid judgment can be
rendered by the court. (Valenzuela v. CA, G.R. No. 131175, Aug. 28,'
2001.) • July 11, 1995; Ramos v. Pepsi Cola Battling Co., G.R. No. L-22533,
b) In an action for nullification of a certificate of title, the mort-
gagee whose mortgage is duly annotated on the said certificate of title
is an indispensable party. (Metropolitan Bank & Trust Co. v. Hon. Alejo,
G.R. No. 141970, Sept. 11, 2001.)
22. Give some examples of a necessary party.
a) A transferee pendente lite of a property under litigation Is
merely a necessary party. (Rule 3, Sec. 19.)
b) . The person in. possession of the personal property sought
to be seized under a writ of replevin is only a necessary party. (BA
Finance Corp. v. CA, et et., G.R. No. 102998, July 5, 1996.)
46
RULE 3- PARTIES TO CIVIL ACTIONS
23. Who are pro-torm« parties?
I
Pro·forma parties are those who are required to be joined as
co-parties in suits by or against another party as may be provided by
I applicable substantive law or procedural rule.
Pro-forma parties may either be indispensable, necessary, or
neither indispensable nor necessary. An example of a pro-forma party
who is neither indispensable nor necessary is: where a husband files
an action to recover a property which he claims to be part of his exclu-
sive property, his wife who may have no legal interest in such property
should be impleaded because Section 4, Rule 3 requires that she be
joined as a party. The wife is a pro-forma party who is neither indispen-
sable nor necessary. (Carandang v. Heirs of Quirino A. de Guzman,
etc., G.R. No. 160347, Nov. 29, 2006.)
24. What are the requisites of permissive joinder of parties?
The following are the requisites:
a) The right to relief arises out of the same transaction (or
b) There is a question of law or fact common to all the plaintiffs
or to all the defendants. (Rule 3, Sec. 6.) ·
There is a question of law in a given case when the doubt or
difference arises as to what the law is on a certain state of facts; there is
a question of fact when the doubt arises as to the truth or the falsehood
of alleged facts. (Manila Bay Club Corp. v; CA, et et., G.R. No. 110015,
Feb. 9, 1967 [19 SCRA 289).)
25. The rule Is that jolnder of parties is only permissive, but
when Is it compulsory?
.
Joinder of parties is compulsory or mandatory if t arties to
be joined in an action are Indispensable parties. But, lass su1 is an
exception to the rule on compulsory joinder of indispensable parties. In
a class suit, all those who belong to the class are indispensable parties,
but not all of them need to be joined.
26. What Is the effect If an Indispensable party Is not joined?
If It appears that an indispensable party is not impleaded, the
court must order th~ plaintiff to amend his complaint for the purpose
47

QUESTIONS AND ANSWERS IN
I
I RULE 3 - PARTIES TO CIVIL ACTIONS
REMEDIAL LAW
I
of im leadin the indispensableparty. If the~~ailsor refuseili /
inclu~esuch~ndispensable party,or the latte~ (th~ ind1spen~ableparty);
cannotbe sued,then the complaintmay be dlsmlssed. (National Deve-
. . No . 98467 , July 10, 1962 [211 SCRA. 422].)
lopmen l Co. v. CA , GR
The absence of an indispensableparty ren?ers all subsequent
actionsof the court null and void for want of authority to act, not only as
to the absentparties, but even as to those present. (Arcelona, et al. v.
CA, et al., G.R. No. 102900, Oct. 2, 1997.) . · .
27. x sued A, 8, c, D, and E. The complaint alleges that the
defendants conspired and acted in concert in defrauding X of his
property. A, B, and c filed their answer, but D and E did not. Later,
D and E were declared in default. When it was time for X to present
his evidence, he moved to dismiss the complaint as against A, B,
and C so that the presentation of evidence would only be against
D and E who were earlier declared in default. The trial court issued
an order dropping A, B, and C. The case proceeded against D and
E, and X presented evidence against them. Is the order of the trial
court dropping A, B, and C correct? v is not even a necessary party because C may obtain complete. relief or
tN6JThe rule requiresall indispensableparties to be joined in the
actio~hat the trial court did was the exact opposite. All the indis-
pensable parties were already joined in the suit, but the trial court
orderedsome of them to be dropped. It should be noted that A, B, C,
D, and E are all indispensableparties because it was alleged in the
complaintthat they conspiredand acted in concert in defrauding X of
his property. (Antonio Lim Tanhu, et al. v. Hon. Jose R. Ramolete, et al.,
G.R. No. 40098, Aug. 29, 1975.)
28. A and 8, cfoint debtors) owed C the sum of P1 Million.
When t~is obli~ation became due, C filed a complaint against A in
t~e Regional Trial Court for collection. He did not join Bin his suit.
First Question'. Is B an indispensable party? Second Question:
What does1he rule require C to do if a party like B is not joined?
. Answer to the First Question: B is not an indispensable party. He
is merely a necessaryparty. Even without impleading B as a party C
can still o~tai~relief from A, though not complete because being a j~int
deb!or he is liable to pay only one-half of the amount of the obligation.
So, if C wantsto obtaincompleterelief, he must also implead B. Section
8 dismissal of the action; while non-joinder of a necessary party may
definesa necessaryparty as "one who is not indispensable but who
48
--···- lll~lll~···- .. ·-.
ought to be joined as a party if complete relief is to be accorded as to
those already parties, or for a complete determination or settlement of I
the claim subject of the action."
I
,I.
· .. · Answer to the Second Question: C must set forth in his complaint
the name of B and state why he is omitted. Section 9 states: "Whenever
in any pleading in which a claim is asserted a necessary party is not
joined, the pleader shall set forth his name, if known, and shall state
why he is omitted." •
-. Suppose the court finds the reason for the non-joinder of B un-
meritorious, what may the court do? Answer: The court may order the
s
inclusion o.f if jurisdictionover his person may be obtained.
Suppose the court orders the inclusion of B, but C fails to do so,
what is the effect of C's failure to comply with the order of the court?
Answer: C's failure to comply with the order for the inclusion of B, with-
out justifiable cause, shall be deemed a waiver of his claim aqainst B.
(But, if in the problem presentedA and B are solidary debtors, B
complete settlement of his claim against one of the solidary debtors.
Thus, C may enforce his entire claim against A alone; and A, as solidary
debtor, may be compelled to pay the. whole amount of P1 Million. The
remedy of A, if sued alone, is to file a third-party complaint against B for I
contribution.)· · "
As reiterated in Cerezo v. Tuazon, G.R. No. 141538, March 23, I
2004, where the obligationof the parties is solidary, either of th~ parties
is indispensable, and the other is not even a necessary party because
complete relief is available from either.
. .
29. What are the distinctions between an indispensable
party and a necessary party?
. · a) If an indisRensablep~rty !s not.joined, theactlon ,cannot
proceed, and if there is a judgment, such judgment is not valid. On
the other hand, if a necessary party is not joined, the _action may ~till
proceed, but the judgment, although valid, does not resolve the whole
controversy.
· b) Non-joinder of an indispensable party may result in the
result in the waiver of plaintiff's claim against him.
49

QUESTIONS AND ANSWERS IN
,
I
I
REMEDIAL LAW
30. How may a party who should be joined as plaintiff but
whose consent cannot be obtained be impleaded? · joinder is not a ground for the dismissal of the action. (As to the effect
As an unwilling co-plaintiff, he may be impleaded as a defendant,
and the reason therefor shall b~ stated in the complaint. (Rule 3, Sec. 10.)
In Resident Marine Mammals, et al. v. Secretary of Department
of Energy, et al., G.R. No. 180771, April 21, 2015, it was held that
under Section 10, Rule 3, "when the consent of a party who should
be joined as a plaintiff cannot be obtained, he or she may be made a
party defendant to the case. This will put the unwilling party under the
jurisdiction of the Court, which can properly implead him or her through
its processes. The unwilling party's name cannot be simply included in
a petition, without his or her knowledge and consent, as such would be
a denial of due process."
31. Is misjoinder of parties a ground for dismissal of an
action?
.@)The rnlsjoined party may simply be dropped by order of the
court, upon motion of any party or on its own initiative, at any stage of
the action and on such terms as are just. (Rule 3, Sec. 11.)
32. What about non-jolnder of parties, Is It a ground for
dismissal of an action?
It depends.
If the party who is not joined is an indispensable party, the court
~ust o~der the . pl~intiff to amend his complaint for the purpose of
rmpleadrng the rndrspensable party. If the plaintiff fails or refuses to
include such indispensable party, or such indispensable party cannot
be sued, then the complaint may be dismissed. (National Development
Co. v. CA, G.R. No. 98467, July 10, 1992 [211 SCRA 422).)
•
. . The non-join~er of indispensable parties is not a ground for the
drsmrs_sal of an actron. At any stage of a judicial proceeding and/or at
such trme~ ~~ ~re just, parties may be added on the motion of a party
?r on the r~rtia_trve of the tribunal concerned. If the plaintiff refuses to
rmplea_d a~ rndrspensable party despite the order of the court, that court
may drsmrss the complaint for the plaintiff's failure to comply with the
order. (Pamplona Plantation Company, Inc., et al. v. Rode/ Tinghi/ et
al., G.R. No. 159121, Feb. 3, 2005.) · · '
50
···-u1..,,,..llf.l1I .. IH~IIIMUllellll•u-•-111-1·u-,11-,u,-•••-·-·~-
RULE 3- PARTIESTO CIVIL ACTIONS
But if the party whols not joined is a necessary party, his non-
of plaintiff's failure to implead a necessary party, please refer to &A a
No. 28.) ··
While the court may order the joinder of parties, it cannot order the
joinder of causes of action.
33. What are the requisites of a class suit?
The following are the requisites of a class suit:
1·£ll!M'01{~a) The subject matter of the controversy is one of common or
Jr1fOGI general interest to many persons;
'Z-~~m~b) The parties affected are so numerous that it is impracticable
to join all as parties; and
,. ~t ~ c) The parties bringing or defending the class suit are found
ltl~1 the court to be sufficiently numerous and representative as to fully
protect the interest of all concerned. (Rule 3, Sec. 12.)
A class suit may be brought by the plaintiffs as a class or may be
filed against the defendants as a class.
In Borlasa, et al. v. Polistico, et al., G.R. No. 22909, Jan. 28, 1925
(47 Phil. 345), it was held that an action to secure the dissolution of
a voluntary association and to compel the defendants to account for
and surrender the money and property of the association for liquidation
purposes was a class suit.
There is an opinion that a derivative suit brought by stockholders
in the name of their corporation to redress a wrong committed against it
for which the directors refuse to sue is similar to a class suit.
34. Give examples of cases which are not proper class suits .
a) Valencia, eta/. v. CityofDumaguete, eta/., G.R. No. L-17799,
Aug. 31, 1962. On June 6, 1959. Benvenencio Valencia and 28 other
residents of different municipalities of Negros Oriental filed an action
against the City of Dumaguete and several other defendants to recover
from them the surcharges they had collected from the customers of
four movie houses operated in. Dumaguete City, pursuant to a city
ordinance. The complaint alleged, among other things, that the subject
matter of the case is one of common or general interest to about 30,000
51
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
persons residing in the different municipalities of Negros Oriental; and
the plaintiffs being so numerous it is Impracticable to bring them all
before the court. and for that reason only 29 of the plaintiffs (one from
every municipality) appeared in the title of the case in representation
of all the others. HELD: This is not a proper class suit because each
one of the plaintiffs and each ot the more than 30,000 other parties-in-
i erest referred to in the complaint has an interest exclusively in the
amounts alleaedly collected from each of them by the defendants. It
is dear that not one of the plaintiffs has any right to, or any share In
the amounts individually claimed by, the others, each of them being
entitled. if at all, only to the return of what he had personally paid.
b) Berces v. Villanueva, G.R. No. 7309, Oct. 10, 1913 (25 Phil.
473). In an action where numerous defendants individually occupying.
different portions of a big parcel of land were sued as a class repre-:'
sented only by some of them, a class suit would not lie because each
of the defendants had an interest only in the particular portion of the: ..
land he was ctually occupying, which was completely different from:
the other portions individually occupied by the other defendants.
c) Rallonza, et al. v. Evangelista, et al., G.R. No. 4612, March
21, 1910 (15 Phil. 531 ). A dass suit does not lie in actions for recovery of
real property where separate portions of the same parcel are occupied
and daimed individually by different parties, to the exclusion of each
other.
d) Request of Plaintiffs, Heirs of the Passengers of the Dona
Paz to Set Aside the Order Dated Jan. 4, 1988 of Judge B.D. Ching-
cuangco, AM. No: 88-1-646-0, March 3, 1988 (En Banc). On January
4, 1988, ~ complaint for damages amounting to more than P1 .5 Billion
was fifed U1 the name and on behalf of the relatives or heirs of the victims
of the worst sea disaster in history, the sinking of the vessel Dona Paz
cau~ by its collision with another vessel. The complaint characterized
the action ~s a dass suit_, prosecuted by 27 named plaintiffs on their
behalf and m rep~esentation of the approximately 4,000 persons who
are all close r:fatives and legal heirs of the passengers of the Dofla
Paz. HELD:_ Tfi~s '~ not a proper class suit because the interest of each
of the plamtiff s rs limited to the damages being claimed by him.
Note that, in all the above-mentioned cases, the parties were
numerous. Yet, there was no community of interest because the subject
matter of the controversy was not of common or general interest among
all of them.
52
RULE 3- PARTIES TO CIVIL ACTIONS
If ~la_ss. s~it is not proper, the remedy of the parties is either lo
br!ng. su'.t '.ndivrdually or join them all as parties under the rule on per-
missrve jolnder of parties.
35. Does an action Involving numerous Individuals become
a class suit slmply because the parties have alleged It to be a class
suit?
No. Thus, for the guidance of the court, the complaint must allege:
a) the existence of a subject matter which is of common or
general interest to many persons; and
,·' '-
b) the existence of a class and the number of persons belong-
, . ing to that class.
• • · ~'r
1
36. To dismiss or compromise a class suit, ls the approval
•
,, ·;: of the court necessary?
..'1
·' ~- Section 2, Rule 17 provides that a class suit shall not be
dis~d or compromised without the approval of the court
37. What is the duty of a counsel if his client who is a party
to ~ pending suit dies?
Whenever a party (whether the plaintiff or the defendant) to a
pending action dies, and the claim is not thereby extinguished, it shall
be the duty of his counsel to inform the court within 30 days after such
death of the fact thereof and to give the name and address of his legal
representative or representatives._ (Rule 3, Sec. 16.)
· Counsel's failure to give notice of the death of his client may
subject him to a disciplinary action.
. If counsel fails to give notice of death, and, therefore, no legal
representative is substituted for the deceased party, the court may still
proceed with the case and all the proceedings therein shall be valid and
binding upon the successors-in-interest. (Florendo, Jr., et al. v. Coloma,
et al., G.R. No. L-60544, May 19, 1984.)
Where, however, notice of death is promptly given pursuant to
the rules, but the court proceeded with the case without requiring subs-
titution, all proceedings therein are void. (The Heirs of the Late Floren-
tina Nuguid Vda. de Haberer v. CA, G.R. Nos. L-42699 and L-42709,
May 26, 1981.)
53
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
In Heirs of Bertuldo Hinog, et al. v. Hon. Achilles Melicor, et al.,
G.R. No. 140954, April 12, 2005, the Supreme Court has explained
that the purpose behind the rule on substitution is the protection of the
right of every party to due process. It is to ensure that the deceased
party would continue t9J:>~.P~P~ctYJ~pr~~~J:l~~~.in t_h~_.§_l)jtJhro.ugh the
duly appointed legal representative of his estate. Non-compliance with
the rule on substitution would render the proceedings and judgment. of
the trial court infirm because the court acquires no jurisdiction over the
persons of the legal representatives or of the heirs on whom the trial
and the judgment would be binding.
38. If a public officer is a party in an action in his official
capacity, but during the pendency of the action he dies, resigns,
o~ ceases to hold office, may the action be continued by or against
his successor?
@if within 30 days after the successor takes office or such time
as may be_ granted by the court, it is satisfactorily shown that there is
a su_bstant1af need for continuing it and that the successor adopt~ or
continues or threatens to adopt the action of his predecessor, in which
event the su~ssor shall be substituted in the action after giving him
reasonable notice of the application for substitution and an opportunity
to be heard. (Rule 3, Sec. 17.) : marriage to him. While the action is pending, H, the husband, died.
ffi 39. What are the requisites for valid substitution ~f public·
o ce~ who has sued or has been sued 'in his official ca aci
What is the effect of failure to make the substitution? p ty?
The requisites for valid substitution of public officer wh h
or has been sued in his official capacity are: o as sue~
. (1) satisfactory proof by any" party that th ... · . 42. What are the rules to be observed in case of death of the
need for continuing or maintaining tne action; ere is a substantial
(2) the successor adopts O · f ' · · a)
continue the acts of his predecess~t)n rnues or threatens to adopt or .
(3) the substitution must be effected w"th·
successor assumes office or within the r , m 30 days after the
. nne granted by the court; and
(4) reasonable notice of the a li .
shall be given to the other party trip tcanon for the substitution
opportunity lo be heard. or o rcer affected and accorded an
54
RULE 3 - PARTIES TO CIVIL ACTIONS
vfailure to ~ak~ the substitution pursuant to Section 17, Rufe 3 is a
ground for the d1sm1ssal of the action, (Rodriguez, et al. v. Jardin, G.R.
No. 141834, July 30, 2007)
40. P flied a petition for certiorari under Rule 65 In the Court
of Appeals. The Judge of the lower court whose order Is alleged to
have been Issued without jurisdiction, or in excess of jurisdiction,
or with grave abuse of discretion was impleaded as respondent as
required by Section 5, Rule 65. While the petition was pending at
the Court _of Appeals, the respondent Judge died, and a new Judge
was appointed to take the place of the deceased Judge. Should the
new Judge be substituted for the deceased Judge?
•
1
No. The public officer contemplated in Rule 3, Section 17 does
not include a judge who is sued in connection with his actuation in the
exercise of his judicial functions. The nature of his act is such that any
action· impugning it is not abated by his cessation from office. Besides,
a ji.Jdge who is sued as such is merely a nominal party. (Republic v. CF/
of Lanao clef Norte, et al., G.R. No. L-33949, Oct. 28, 1973.)
41. W filed an action against H for the annulment of her
May the legal representative of H be required to appear and be
substituted for him? ·
No, because an action for annulment of marriage (or for declara-
tion of riullity of marriage, or for legal separation) is purely personal,
and, therefore, it is extinguished or abated by the death of either or both
spouses.
ol>ligor if there are claims against him?
If jt is a money claim arising from contract express or
implied, the rules are: .
1
1) if the obliger dies before an action could be filed against
him, the obligee will have to file a money claim with the probate
court (in the testate or intestate proceedings for the set-tlement of
the estate of the deceased obligor).
2) if the action has already been instituted against the
obligor, and he dies before entry of final judgment in the court in
55
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
which the action is pending at the time or such death, the action
shall not be dismissed but shall instead be allowed to continue until
entry of final judgment, ..ff°Qlaintiff obtains a favorable judgment. he
wiII have to file it as a money daim based on judgment in the pro-
bate court. This is so because a judgment for money, although final,
cannot be executed against a deceased party. (Rule 3, Sec. 20.)
But if tne Judgment obligor dies after execution has been actually
levied upon his property, the property levied upon may be sold in an
execution sale for the satisfaction of the judgment obligation. Simply
put, if defendant dies after levy has already been made, execution may
take place even after such death. This is so because levy has the effect
_ of segregating the property levied upon from the mass of property of
the deceased defendant But if the property levied upon, when sold
in the execution sale, is not sufficient to pay the judgment obligation,
then the balance or deficiency may be filed as a money claim based on
judgment in the probate court. (Rule 39, Sec. 7.)
. b) If it is a claim that does not arise from contract, such as.a
claim for recovery of real or personal property or enforcement of a lien
thereon the rules are:
1) if the obligor dies before an· action could be filed
against him, an ordinary action may be filed against his executor
or administrator;
. . 2) if ~e o?ligor dies after an action has already been
mslit~ted against him, the action will continue until final judgment.
!he Judgment may be executed against his executor or admin-
istrator. (Rule 39, Sec. 7.)
43. P filed a complaint against D for the recovery of a sum
o~ money based on a contract During the pendency of the suit D
dies. Should the action be dismissed? '
~e action should not be dismissed. The rule now is that when
the a on is for recovery of money-arising from contract
i r d d h . , express or
mp ie_ • an. t e defen.dant dies before entry of final judgment in the
court m w~,ch. th~ action was pending at the time of such death it
=~all not be ~1sm1ssed but ~hall instead be allowed to continue u~til
try of final Judgment. The Judgment will not be executed but sh II b
r;:~:;~e:e:~ ;o~oney claim based on judgment in the probate :ourt~
56
RULE 3- PARTIESTO CIVIL ACTIONS
44. X filed an act!!>n against Y for recovery of damages
arising from tort. During the pendencyof the action, Y died. The
administrator of Y's estate moved to dismiss the action on the
ground that the liability of y was already extinguished by his
death. Should the actfon be dismissed? ·
The action should not be dismissed because this is an action that
survives. Being one to recover damages for injury to person, X's action
is not abated by the death of the defendant. If the plaintiff obtains a
favorable judgment, he can have it executed against the administrator
or executor of the deceased defendant
Other examples ofother actions that survive: ( a) actions to recover
real or personal property; actions to enforce a lien thereon; actions to
recover damages for an injury to person or property (Aguas v. Llemos,
No. L-18107, Aug. 30, 1962); (b) action for damages caused by the
to_rtious conduct of the defendant (Melgar v. Buenviaje, G.R. No. 55750,
Nov. 8, 1989).
In Sulpicio Lines, Inc. v. Sesante, G.R. No. 172682, July 27, 2016,
it was held that an action for breach of contract of carriage survives the
death of the plaintiff and could be continued by his heirs, but the rule on
substitution of parties as stated in Sec. 16, Rule 3, must be followed.
Tabalno v. Dingal Sr., G.R. No. 191526, Oct. 5, 2015, reiterates
that the three actions for recovery of possession of real property ( accion
interdictal or ejectment case, accion publiciana, and reivindicatoria)
survive the death of a party. Under Section 16, Rule 3, the deceased
party may be substituted by his heirs.
But personal actions (such as ·action for support, annulment of
marriage, declaration of nullity of marriage, and legal separation) do not
survive the death of a party. If the action does not survive, it may simply
be dismissed by the court. and no substitution of party is required.
v Z
45 Spoufe~ and Y owed the sum of P1 Million. After the
debt had become due, husbandX died. Z filed an action against Y
for ~ction of the sum of P1 Million. Would the action prosper?
· ~ A creditor cannot sue the surviving spouse of a decedent in an·
ordinary action for the collection. a,f a sum of money charg~able a~ainst
the conjugal partnership. The proper remedy of the creditor (Z m the
problem given) is to file a claim in the settlement of the estate of the
decedent. (Alipio v, CA, G.R. No. 134100, Sept. 29, 2000.) ·
57
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
'f( 46. Spouses Manuel and Lolita signed a promissory
note binding themselvel(lo pay solidariiy to Boston the sum of
P1 ,400,000. As the debt already becamedue, Boston filed against
Manuel and Lolita a complaint for collection. In her amended
answer, Lolita alleged that Manuel had already died two years
before the filing of the complaint. On Boston's motion, Lolita
submittedthe namesof the heirs of Manuel. Whereupon, Boston
moved for substitution, praying that Manuel be substituted by
his heirs. The court granted the substitution. Later, Lolita filed a
motion to dismiss, alleging among other grounds, that the estate
of Manuelshould be lmpleadedas an Indispensableparty. She also
allegedthat plaintiff's claim should be presentedas a money claim
In the probateproceedingsof the estate of Manuel.
Questions:
a) Is the court correct In ordering the substitution of
Manuelby his heirs?
b) Is the estateof Manuelan Indispensableparty?
c) What Is the remedy of Boston as creditor - to file a
claim againstestate of Manuel(the deceasedspouse) or to file an
action for collection against Lolita (the surviving spouse)?
In Boston Equity Resources, Inc. v. Court of Appeals and Lolita G.
Toledo, G.R. No. 173946, June 19, 2013, the Supreme Court held that
a) iThe court is not correctIn ordering the substitutionof ManueJ
by his h~lrs. Substitutionis properonly if the party to be subs- tituted
died. during the _pendency of the case as expressly provided for in
Secti_on _16.' R.u'? 3. The SupremeCourt said that the trial court did not
acq~1re Junsd1ction over the. personof Manuel since there was no valid
service~f summonsupon him, preciselybecause he was alread dead
e~en betore the complaint against him and his wife was filed~ th
tnal court. , ... · ,. 1 m e
b) The estate of Manuel is not an indis ensabl
th~ collectio~ case because the obligation of Manie, and~-
sohdary. Article 1216 of the Civil Code provides· "Th
pai ~o
1~
W! e rs
proceedagainst any one of the solidary debto . e creditor may
simultaneously.... " Boston ma th rs or some or all of them
the obligationfrom Lolita only. fn o~~::o:::~let~t thelel nti~ amount of
proceedagainst Lolita. . • e co action case can
58
RULE 3 ..:_ PARTIESTO CIVIL ACTIONS
.c) Being a creditor. in a .solidary obligation, Boston has the
option whether to file or not to file a claim against the estate of Manuel.
This is so because Article 1216-of the Civil Code gives to the creditor
the right to proceed against one of the solidary debtors or some or all
of them simultaneously.In case of death of one of the solidary debtors,
the creditor may, if he chooses,proceed against the surviving solidary
debtor without necessityof filing a claim in the estate of the deceased
solid~.debtor.
't\V Compare this ruling with the ruling in Alipio v. CA, G.R. No.
134100, Sept. 29, 2000 stated in the preceding Q & A. The nature of
the obligation involved in Alipio is ~at solidary but merely joint.
47. What Is the rule If It Is the plaintiff who dies?
If the action is purely personal to the plaintiff, his death abates
the action. In all other instances where the plaintiff dies during the
pendency of the litigation,the action will continue, but his counsel must
give a notice of plaintiffs death so that his legal representative/s or
heir/s may be substitutedin the action. i
!
48. When does transfer of Interest pendente lite occur? I
Transfer of Interest pendente lite occurs when, during the pen-
dency of the action In court,one of the parties,whether the plaintiff or the I
defendant, transfers his interestover the subject matter of the action to
another person. The person to whom the interest is transferred, either I
by sale or by any other means of conveyance, is called the transferee
pendente lite. Ii
49. What is the rule on transfer of lnterest p~n_#_ente.1/te? 2
The rule is that the action may be continued by or against the
original party. The_court may, however, on motion direct the transferee
to be substituted in the action or joined with the original party. The subs-
titution is not mandatorybut only permissive.A transferee pendente lite
is merely a necessary party. The judgment for or against_ the original
party will benefit or bind the t~ansferee. Thus,. the action. m~y be
continued by or against the original party even without substltution or
without the transferee being joined. (Rule 3, Sec. 19.)
Even if the transferee pendeme lite is not substituted in the
action and is not joined as a party, he stands exactly in the shoes of
59
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
the transferor and is bound by any judgment or decree that may ~e
rendered for or against the transferor. (Director of Lands, et al. v. Marlm,
et al., G.R. No. 8037, June 28, 1949.).
In transfer of Interest pendente lite, the original party remains,
either as party-petitioner (plaintiff)_or party-respond.ent (defendan!),_ as
the case may be, despite the transfer pendente tne. So, the onginal
party does not lose his personality as the real party-in-interest_ merely
because of the transfer of interest pendente tlte. But, on motion, the
court may direct the transferee to be substituted in the action or joined
with the original party. (Marcopper Mining Corp. v. Solidbank Corp., et
et., G.R. No. 134049, June 17, 2004.)
-If 50. B bought a brand new car from MS Company with FFLC
financing the account. FFLC assigned this account to FCC, its
sister company. Later, FFLC repossessed the car. Claiming that
FFLC acted Illegally, B flied a complaint for damages against
It. Because BPICC subsequently bought FCC, B amended his
complaint to Include BPICC as co-defendant, During tho pondoncy
of the case, BPI acquired all tho assets of BPICC as part of a merger
plan. Although the merger was made known to tho court, BPI was
not formally lmpleaded or substituted for BPICC. FFLC and BPICC
continued to be the defendants. The trial court decided In favor of
B. In due time, FFLC and BPICC flied a notice of appeal. BPI did not
file Its own notice of appeal.
Questions:
(1) Is the trial court's Judgment binding upon BPI?
(2) Assuming that the trial court's judgment Is binding upon
BPI, did the Judgment become final as to It for Its failure to file its
own notice of appeal?
Yes. Although It was not lmpleaded in the action as defendant the
trial cou~·s jud~ment Is binding upon BPI as a transferee pendente, lite.
The rul.e rs that in ~se of any transfer of interest during the pendency of
the action, the action may be continued by or against the original rty
!hus, a transferee pendente lite stands in exactly the same positi pa ·
its prede · · t h I ion as
. cessor-1~-m erest, t e original defendant, and is bound b th
proceedings had m the case. Y e
. Although BPI did not file its own ~otice of appeal the ·ud t better position than the vendor in whose ~hoes he now s~~ds. x x x As
did not become final as to it. Since the judgment is con;ide~ bTn~~~
60
RULE 3 - PARTIES TO CIVIL ACTIONS
upon BPI as a transferee pendente lite, it follows that the appeal made
by the original party (which is its predecessor-in-Interest) would also
redound to BPl's benefit. (Jocson, et al. v. CA, et al., G.R. No. 88297,
March 22, 1990.)
51. NQ brought an action against the PNB to enforce Its
right to redeem certain real properties foreclosed by said bank.
With notice of the pending action, SLDC purchased from PNB
the properties In litigation. Thereafter, SLDC flied a motion to
intervene In the action, with Its answer In Intervention attached
thereto, alleging that It was a transferee pendente lite. May SLDC
be allowed to Intervene?
r.::;'ci:)SLDC may not be allowed to Intervene.' In the problem
pres~6d. there is a transfer of Interest pendente lite. When transfer
of interest pendente lite occurs, the action may be continued by or
against the original party. The court may, however, on motion direct
tho transferee (SLDC In the problem presented) to be substituted in the
action or joined with the original party (PNB in the problem presented).
In Santiago Land Development Corporation v. CA, et al .• G.R. No.
106194, Jan. 28, 1997, citing other cases, it was held that a transferee
pendonto lite stands In exactly the same position as its predecessor-in-
Interest, that Is, the original defendant. However, should the transferee
pondonte lite choose to participate In the proceedings, it can only do so
as a substituted defendant or as a joint party-defendant. The transferee
pendente lite Is a proper but not an Indispensable party as it would in any
event be bound by the judgment against his predecessor-in-Interest.
This would be true even if respondent SLDC is not formally Included as
a party-defendant through an amendment of the co~plalnt. As such,
the transferee pendente lite Is bound by the proceedings already had
in the case before the property was transferred to it. x x x The purpose
of Rule 12 Section 2 (now Rule 19, Sec. 1) on Intervention is to enable
a strange/ to an action to become a party to protect his interest and
the court incidentally to settle all conflicting claims. On the other hand,
the purpose of Rule 3, Section 20 {now Rule 3, Sec. 19) Is to provide
for the substitution of the transferee pendente lite precisely because
he is not a stranger but a successor-in-interest of the transferor, who
is a party to the action. As such, a transferee:s tit~~ to _the prope~ is
subject to the incidents and results of the pending httgat1on and is in no
such, he stands exactly in the shoes of his predecessor-in-interest, the
61
 ··-·111 '"llllf!''' , .. ~-·- ~. . ... -·· ··--· ·-···-- ·- ., . _,,_,,_
It

~\) .~Tl N, AND ANflWl:h, IN

R~M~DIAl. I.AW

origin, I ch fr1nrlant, nmi I, bmtnd b I th() prooafldlnOR hnrt In the oaflfl
t f\ rt1 the property we1s tmnsff)rmrt to him. Hl:l IR n proper, b11t not nn
lndl~pt1nsnble, party as hf) would, In nny event, nnve been L>mmd by Iha
judgnk nt nrinln~t hts r,~decosflor. How t110n onn ll lflQnlly be poalllbla
for a transtereo pondf>nt, me to still intervene when, for all lptents and
purposes, the taw atrendy considers him Joined or substituted In the
ponding nctlon. commencing at the exact moment when the transfer
of interest is perfected between tho original party-transferor and the
transferee pvndenta lite? And this oven If the transferee Is not formally
joined as n party in the actton. On the other hand, one who Intervenes
has n choice not to intervene and thus not to be concluded by any judg-
ment that may be rendered between the original parties to the actlon.
Any fRltilly In ll1E1 Rffldnvlt of llllormt or dlslnf11restad person shall
!JR aufflolanl OAUfH'l to dlaml~Hl Iha complaint or Action or to str1kl) out
lllft plondlng of lhAl party, without proJudlrA to whatever crfmlm~l llahlllty
may have been Incurred. (Rulo 141, Son. 10; an emonaea hy A.M, No,
04-2-04-SC.)
53 Moy a motion to lltlgato as an Indigent litigant (or as a
poupor litigant) bo ontortalnod by tho appellate court?
Yes. In Martinez v. People of the Phl/lpplnes, G.R. No. 132852,
May 31, 2000, It was held that a motion to litigate as an Indigent can
be made even before the appellate courts, either for the prosecution of
appeals In petitions for review or In special clvll actions.

52. Suppose X wants to lltlgate his action (or claim or Nole, also, that under Section 9, Rule 41, the trial court has
defend) as an Indigent party, what must he do? residual power lo permit appeals of indigent litigants.

He must file with the court an ex parta application for authority to
litigate as an indigent party, and at the hearing on his application, he
must satisfy the court that he has no money or property sufficient and
available for food, shelter, and basic necessities for himself and his
family. (Ru/a 3, Sec. 21.)
Suppose the adverse party is of the belief that X has sufficient
income or property, what is the remedy of the adverse party? He
may contest the grant of authority to X at any time before judgment is
rendered by the trial court. (Rule 3, Sec. 21.)
54. In what action may the court require the appearance of
the Sollcltor General?
In any action Involving the validity of any treaty, law, ordinance,
executive order, presidential decree, rules, or regulations, the court, in ·J:
Its discretion, may require the appearance of the Solicitor General, who
may be heard in person or through a representative duly designated by
him. (Rule 3, Sec. 22.)

Indigent litigants are those (a) whose gross income and that of
their immediate family do not exceed an amount double the monthly
minimum wage of an employee and (b) who do not own real property
with a fair market value as stated in the current tax declaration of more
than P300,000. They shall be exempt from the payment of legal fees,
which shall be a lien on any judgment rendered in the case favorable to
the indigent litigant unless the court otherwise provides.

To be entitled to the exemption from payment of legal fees, the

indigent litigant shall execute an affidavit that he and his immediate
family do not earn a gross income above-mentioned, nor they own any
real property with the fair market value above-mentioned, supported
by an affidavit of a disinterested person attesting to the truth of the liti-
gant's affidavit. The current tax declaration, if any, shall be attached to
the litigant's affidavit.

. 62 63

RULE4
VENUE
1. What is venue?
Venue refers to the place where the action is to be instituted and
tried. One dictionarydefines venue as: 'The locality in which cause for
legal action occurs; the locality or county in which a case is tried and
from which a jury is impaneled." (II The Lexicon Webster Dictionary
[1979).)
2. What are the distinctions between venue and jurisdic-
tion?
- The following are the distinctions:
. . ..
a) ·venue refers to the place where the action is to be instituted;
jurisdiction refersto the authority of the court to try and decide the case;
b) Venue may be waived; jurisdiction (over the subject matter
of the action) cannot be waived; : prosecuted and defended by a representative or someone acting
c) Venue may be the subject of a written agreement between
the parties; jurisdiction cannot be the subject of a written agreement
between the parties; and
d) . The court cannot motu proprio dismiss the complaint on
groundof improperv~n~e;. b~t it can motu proprio dismiss the complaint
on ground of lack of Junsd1ct1on over the subject matter thereof.
. The court may not motu proprio dismiss the case on the ground
of ,~proper v~nue be~use. ve~ue is a matter that is personal to the
pa~es and. w1t.hout t~err objection at the earliest opportunity, as in a
m.otion to drsmrssor man answer, it is deemed waived. (Radiowealth
Fmance Company, Inc. v. Nolasco, G.R. No. 227146, Nov. 14, 2016.)
3. What is the venue of real actions?
. Real .ac_tio~s. shall be commenced and tried in the ro er court
f
whrchhas Jurrsdrctron over the area wherein-the real prop!y nvolved,
64
RULE 4 - VENUE
or a portion thereof, is situated. Actions for forcible ~~try a~d unlawf~~
detainer shall be commenced and tried in the municipal trial court_
the municipality or city where the real property invo~edef'1>~~~~~,.,.;1
thereof, is situated. (Rule 4, Sec. 1.) .At f>"l4"'~"
~
4.
.
What is the venue of personal actions (!)
?~t~
_ .
Personal actions may be cornmenceq.and tried where the plaintiff
or any of the principal plaintiffs resides, otwhere the defendant o~ any
of the principal defendants resides, ofl?n the case of a n~n~res1dent
defendant where he may be found, at the election of the plaintiff. (Rule
4, Sec. 2.)
5. 00 a· resident of Los Angeles, California, executed a
special p~er of attomey'In favor of@for the purpose of filing an
action for collection of P10 Million agains(a Y resides in Quezon
City; while X resides in· Bacolod City. Acting pursuant to his
authority under the special power of attorney, Y filed on behalf of
. ~
X_a complaint for collection ag_ainstZin the RTC. 9f.Quezon City. Z
moved to dismiss the complaint on the ground of improper venue.
Yo osed the motion, arguin that the venue was ro erl laid in
Quezon 1ty ecause e 1s a representative arty. He pointed to
ection 3, Ru e 3 t at states: "Where the action is allowed to be
in a fiduciary capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party-in-interest. A
representative may be a trustee of an express 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 may sue or be sued without joining the
principal except when the. contract involves things belonging to
the principal." Rule on the motion to dismiss.
Motion granted. It must be noted that a representative is not a real
party-in-interest.
In Ang, etc. v. Ang, G.R. No. 186993, Aug. 22, 2012, a case with
similar factual backdrop, the Supreme Court explained the rule in this
wise: ·
"It is a legal truism that the rules on the venue of personal
actions are fixed for. the convenience of the plaintiffs and their
witnesses. Equally settted, however, is the principle that choosing
65
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
the venue of an action is not left to a plaintiffs caprice; the matter
is regulatedby the Rules of Court.
. . x x. x The Rules give the plaintiff the option of choosing
· .: · · · ·~he(~·.t~ fil~ his complaint. He can file it in the place (1) where
he·1nimselfor any of them resides, or (2) where the defendant or
~riy .of the defendantsresides or may be found. The plaintiff or the
defendant m~st be residents of the place where the action has
been institutedat the time the action is commenced.
I ;,
However, if the plaintiff does not reside in the Philippines, the
complaintin such case may only be filed in the court of the place where
the defendant resides.
As to the applicabilityof Section 3, Rule 3, the Supreme Courtjin
Ang, said: "Nowhere in the rule cited above. is .it stated or, at the very
least implied,that the representativeis likewisedeemed as the real party
in interest.The said rule simply states that, in actions which are allowed
to be prosecutedor defendedby a representative,the beneficiary shall
be deemedthe real party in interest and, hence, should be included in
the title of the case."
·-. 6. If the defendant is a non-residenTdefeffaariCwfiafls the
venue of the action? -- ·--- - -··- ·- . -···--- -· ._ .. -· ---
a) . If the non-residentdefendant !s in the Philippines, the venue
of t~e action shall be where the plaintiff or any of the principal plaintiffs
resides or where the non-resident defendant may be found at the
election of the plaintiff; and ' the action for the cancellation of the real estate mortgage is a personal
b) l_f the non-resident defendant is not found in the Philippines,
and the action affects th~ personalstatus of the plaintiff or any property
of t~e defendantlocated rn the Philippines,the venue of the action shall
be 1~ the place where the plaintiff resides or where the property or any
portion thereof is situated or found. (Rule 4, Secs. 2 and 3.)
7. What does the word "reside," as used •in the rule on
venue of personal actions, mean?
As used in the rule on venue of personal actions the word "reside"
me_an_s the place of abode, whether permanent or tern ora of the
pl~nt1ff or the defendan~,as distinguishedfrom "domicile" !hict{denotes
a rxed permanent residence to which, when. absent, one intends to
66
RULE 4 _:.. VENUE
return. (Koh v. CA, G.R. No. L-40428, Dec. 17, 1975 [70 SCRA 298];
Dangwa Transportation Co., tnc., et al. v. Sarmiento, et el., G.R. No.
L-22795, Jan. 31, 1977.)
.J'·
"' 7fe 8 X bought on installment a parcel of land from Y. Alleging
that Y refused to accept payment for the installments that were
already due, X wants to file an action against Y tocompel him to
acceptthe payment. Suppose X resides in Baguio City, Yin Dagupan
City, but the land is situated iri Bontoc, ·Mountain Province, where
should X file his complaint?
X should file his complaint in Bontoc, Mountain Province, where
the land is located because this is @ a""ctlomThe filing of the action
is necessary to enable X to consolidate his ownership over the parcel of
land. (Lizares, Inc. v. Caluag, et al., G.R. No. L-17699, March 30, 1962.)
Jli' · /;' 9. X mortgaged his land to Y to secure the payment of
a loan in the amount of P1 Million. When the debt became due,
X offered to pay the loan by means of a manager's check, but Y
refused to accept the check. X wants to institute an action against
Y to compel him to accept the payment and execute the proper
instrument for the cancellation of the real estate mortgage. If the
land is situatedJin Baguio City, but X resides in Tarlac City and Yin
Angeles City, what is the venue of the action?
The venue of th~ a~ti~~ is either Tarlac Ci~ (where X resides) or
Angeles City (where Y resides), at the election of ~.·The reason is that
action because X's title or possession of the land is not an issue in this
:-. case. (Hernandez v. Rural Bank of Lucena, G.R. No. L-29791, Jan. 10,
. 1978.)
~.k 0. The mortgagee,-whi'cti lsacorporatlon, extrajµdicially
~ foreclosed the real estate mortgage constituted on a land located
in Manila. The extr~judicial foreclosure was conducted in,Manila.
Claiming _a deficiency_ of ·more than _P18 Million, the mortgagee
flied a complaint to recover the deficiency in the RTC of Makati
because the principal office of the mortgagee is located in Makati.
The defendant mortgagor moved to dismiss the complaint on
the ground that the action was barred by res judicata, that the
complaint stated no cause of action, and that plaintiff's claims had
already been waived, abandoned,·or extinguished. The RTC denied
67
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
ti t dlsmlss The defendant moved for reconsideration;
the mo ,on o · · d" ·
the plaintiff adopted its opposition to t~e m~tlon to rsmrss as
its opposition to the motion for recons1derat1on. The defendant
filed its·reply in which it raised for the first time the ground o~
improper venue. In his reply, the defendant argued that the venue
of the action should be Manila, where the mortgaged real property
was located. The RTC denied the motion for reconsideration. The
defendant assailed the RTC's denial of his motion to dismiss and
the denial of his motion for raconsleeratlon by filing a petition
for certiorari with the Court of Appeals. The Court of Appeals
granted.the petition, holding that the venue of action for recovery
of deficiency must be the same yenue as that of the extrajudicial
foreclosure of mortgage. In support of its ruling, the Court. of
Appeals said that a suit for recovery of the deficiency after the
foreclosure of a mortgage is in the nature of a mortgage action
because its purpose is precisely to enforce the mortgage contract,
Is the Court of Appeals correct?
No, the Court of Appeals is not correct.
. - . However, R failed to deliver to L the title of the lot. L, who resides
In BPI Family Savings Bank, Inc. v. Yujuico, G.R. No. 175796, July
22; 2015, itwas held that an action to recover·the deficiency after an
extrajudicialforeclosureof a real estate mortgage·is· a personal action
becauseit does not affect title to or possession of real property or any
interest therein. The venue of the action-is-th·erefore properly laid in
Makatiwhere the main' office of the mortgagee is located.
. In the problem presented, the defendant raised the question
of ,~proper venue only in his reply. In the same case of BPI Family
Savmgs Bank, In~. v. Yujuico, i~ w~s held that, even assuming that the j<
ve~ue had been improperlylard, rt would be improper to dismiss the
actro~ base? on that ground becausethe defendant had not raised that , .
questionof impropervenue in his motion to dismiss. · ·>~
. 11. What is the venue of an action for dissolution of partner-
ship and for accounting where the complaint also prays for the
sale of a real property belonging to the partnership? _.
The venue of this action is the place where the pla;ntiff
O action. (Rule 4, Sec. 4.) · ··
of the_ p~ncipal plaintiffs resides, or where the defendant or a~ ar;;;
the pnncrpaldefendants re.sides because an action for dissolutio~ of
partnershipand for accountrngeven where the complaint also prays for
68
RULE 4 ..:_ VENUE
the sale of a real property is a personalaction. (Claridades v. Mercader,
G.R. No. L-20341, May 14, 1966.) ·
12. What is the venue of an action for revival of judgment?
"The venue depends on whether the action for revival of j1,1dgment
is a real action or a personalaction. If the action for revival of judgment
affects title to or possessionof real property, or interest therein, then it
is a real action that must be filed with the court of the place where the
real property is located. If such action does not fall under the category
of real actions, it is then a personal action that may be filed with the
court of the place where the plaintiff or defendant resides, at the elec-
, tion of the plaintiff. (Infante v. -Aran Bui!dei_s, Inc., G.R. No. 156596,
·Aug. 24, 2007.) · ·
. ,, .
~\. i13. R engaged the services of L as geodetic surveyor to
..... I -subdivide two·parcels of land located in Batangas. As payment
for L's services, R agreed to give him one lot. After the survey, R
delivered to L possession c,f one !o.t as payment for his services.
in Quezon City, filed with the RTC of Quezon City an action against
R for speclflcpertormance to 'ccmpel R to deliver to him the title
to the lot.R'movedto dismiss-on the ground of improper venue,
contending that since this is a real action, the complaint must be
filed in the RTC of .Batangas,where the lot is situated. Is R correct?
~ R is not correct:iThis action for specific performance is a
pers~ action. The venue, therefore, was properly laid in Quezon City
. where the plaintiff resides. It is not a real action because plaintiff L is not
seeking the recovery of the lot as he is already in possession thereof.
He is merely askinp for the delivery of the title to him, which is a personal
actlon. (Dimo Realty_ & Development, Inc., et al. v.Dimeculenqen, G.R.
• v., No. 130991, March 11, 2004.).
~~- May the parties to a civil action validly agree ·on the
exclusive venue of an action?
· Q~;roviaed the following requisites are present: (a) the agree-
ment 'iiii(writing; and (b) the agreement is made before the filing of the
·
' I
15. The Deed of Assignment between X and Y provides: '.'In
case of litigation, the venue'of the action shall be in the competent
69
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
courts of Baguio City nly ' If X resides In Burgos, La Union and
Y In Sison, Pangasinan, may X file his complaint against Y In the
RTC of La Union In the event Y violates the Deed of Assignment?
o. The reason is that X and Y, before the filing of the action,
had a ed on the exclusive venue of the action that may arise from
the Deed of Assignment. Thus, if X files a complaint, he should file It In
the proper court of Baguio City. In the problem presented, the parties
have agreed on the exclusive - repeat, exclusive - venue of their
prospective action. The word "only," it must be noted, is a restrictive
word.
On the other hand, if the written agreement on venue does not
~ntain a restrictive word, then it is understood that it is permissive
m the sense that it merely provides for an additional venue. Thus, in
the ~ro_blem, if the stipulation does _not include the word "only" or other').' .
res_trictive word, then X may file his complaint in the proper court of La ·~;:
U~1on (where he resides), or Pangasinan (where Y resides) ·ar'Bagu.ic>
City (as an additional venue). '
The words "only" and "exclusively" have been held to be restrictive.
Of ~urse, words of similar import may also be used to limit venue to a
particular place. · · ·· · · · · before other venues provided that such other cause of action falls within
~ 6. In their contract of lease,the arties agreed on the venue
of actions as follows: "The venue fo all suits whether for breach
hereof or damages or any cause belween the LESSOR· and the
LESSEE, ~nd ~':5o?s claiming under each, shall be the=courts
of ap~ro~nate JunsdJctionin Pasay City." May the case be filed in
Makati CJtywhere the plaintiff resides?
No. By their_agreement t? lay the venue in Pasay City for all suits
(ta_ke n~te. all suits), th~ parties made it clear that they cannot bring
suit aga,~st each other ,n any other place. (Gesmundo v. JRB Realty
Corporation, et et., G.R. No. 111077, July 14, 1994.)
In Hoechst Philippines, Inc. v. Torres, G.R. No. L-44~1 May 18
1 ~7~ (83 SCRA_ 297 . the parties agreed that "in case of any' itigatio~
ansmg out of this agreement, the venue of any action sn be in the
~mpe~nt courts ~f the Province of Rizal." It was held that, by this
stipu_lation, the parties agreed that any action - repeat, any action _
by e!ther of them shall be filed only in the competent courts of Rizal
province.
70
RULE 4 - VENUE
But, in Polytrade Corporation v. Blanco, G.R. No. L-27033, Oct.
31, 1969 (30 SCRA 18), the parties agreed as follows: "The parties
agree lo sue and be sued in the City of Manila." In this case, it was
held lhat venue may be laid in a place other than Manila because the
agreement merely provided for an additional venue.
In Philippine Banking Corp. v. Tensuan, G.R. No. 104649, Feb.
28, 1994, it was ruled - again - that if the stipula1ion does not contain
restrictive words to indicate that the agreed place alone is the venue of
the action, the parties do not lose the option to choose the venue. In
the absence of such restrictive terms, the stipulation should be merely
construed as an agreement on additional venue, not as limiting venue
to the specified place.
17. Give an instance where a written agreement on the
exclusive venue of an action does not preclude the parties from
bringing their case to another venue.
Where there is a joinder of causesof action between the same
parties, one of which does not arise out of th~. ~ntr~~. "."'he:e the
exclusive venue was stipulated upon, the complaint may be brought
the jurisdiction of the regional trial court and the venue lies therein. At
this point, it may help to quote the pertinent rule in Section 5, Rule 2
of the· 1997 Rules of Civil Procedure: "Where the causes of action are
between the same parties but pertain to different venues or jurisdiction,
the joinder may be allowed in the Regional Trial Court provided one of
the causes of action falls within the jurisdiction of said court and the
venue lies therein." (Uniwide Holdings, Inc. v. Cruz, G.R. No. 171456,
Aug. 9, 2007.)
18. If venue Is Improperly laid, how should the defendant
raise the question of Improper venue?
The defendant should raise the question of improper venue -
a) in a motion to dismiss filed within the time for but before the
filing of the answer (under Rule 16, Sec. 1); or
b) in the answer as an affirmative defense, and thereafter the
defendant may move for preliminary hearing thereon as if a motion to
dismiss has been filed (under Rule 16, Sec. 6).
71
 RULE 4 - VENUE
QUES ONS A D ANSWERS I
RE .~EUl~L tAW
. . O
ffice of the corporation,
. belatedly made (because it is not Court which has jurisdiction over the pnncipal . ipal office of the
. · n to venue ,s d bo · · ed Where he pnno
the l . d. . s or in an ans, ..·er as state a ve ), partnership, or associauon concern · .
1
ed in the securities
. ed er In a moti n to isrms I GR N corporation, partnership, or association i~ reg1s :rction must be filed in
rais e ' . " H Cheng et al. v. CA, et a., . . o.
ft is deemed wa ved. (Khe g . and Exchange Commission as Metro Manila. ~e ed
144 69. A arch 28. 1.) the city or municipality where the head office 15 tocat ·
when the rule on venue shall not
19. What are the Instances
apply?
In the fo o ing instances:
~ere a specifi'"" rule or law provides other-
t. In ose cases wn "
rse: o·
2. \ 'here the parties have validly agreed in writing before the
·ng o' the action on the exclusive venue thereof. (Rule 4, Sec. 4.)

20. Give some instances where a specific rule or law pro-

vides a specific venue for the action.
These are: \ . . _. ·-·······
a) Rule 66, Section 7 - which provides that an action for
qoo warranto can be brought only in the Sup.~me_ ~u~. ~e Court of
Appeals. or in the Regional Trial Court exercising jurisdictlon ove~ the
territorial area where the respondent or any of the respondent resides,
nut wnen me Solidto General commences the action, it may be brought
ln the Regional Tnal Court in the City of Manila, in the Court of Appeals,
o• ,n Ult Supreme Court;

b} Article 360, Revised Penal Code - which provides that

the cnrrunal acuon and civil action for damages arising from libel, if
the offended party is a public official, can only be instituted either in
Regional Trial Court of the place where he holds office or in the place
where the alleged libelous article was printed and first published; and
if the off ended parties are private individuals, the venue shall be in the
Regional Trial Court of the place where the libelous article was printed
and first published or where any of the offended parties actually resides
at the time of the commission of the offense;

c) Section .5 of A.M. No. 01-2-04-SC, March 13, 2001 (Interim

Rules of Procedure Governing lnlfa-Corporate Controversies under
R.A. 8799~ - which provides that all actions involving intra-corporate
controversies shall be commenced and tried in the Regional Trial
73
72
 RULE 5 RULE6

UNIFORM PROCEDURE KINDS OF PLEADINGS

IN TRIAL COURTS
1. Define "Pleadings."
1. The rule is that the procedure in the Municipal Trial Pleacf gs are the written statements of the respective claims and
Courts shall be the same as in the Regional Trial Courts. What are defenses of the parties submitted to the court for appropriate judgment.
the exceptions to this rule? (Rule 6, Sec. 1.)
The exceptions are: (a) Where a particular provision expressly Thus, a pleadinqmay state either a claim or a defense. ..
or impliedly applies only to either of said courts; and (b) in civil cases The claims of a party are asserted in a ,a:JJDpfa1nt, u te
governed by the Rule on Summary Procedure. (Rule 5, Sec. 1.) ems$claim, o );p amt, or oomplaiill:i ·01.er-
An example of a provision which applies only to a municipal trial ~lo · ... while _defenses of.a_pj:uty a~alleged_in al] _an~wet._(Rule_§,
court is Rule 40, Section 8 which provides for an appeal from an order §~'?~.?J.,,,..,..,.,_""-,~'J~-,,.,~c__.,J< ,.,,., -· ,, •••-·~-·-··~-,~-==--- .~,-··- -~ • •••• ~'
of a municipal trial court dismissing a case without trial. •· --..-."' ...... ,,.... ---•-""<.-,._•..-..,.•..IJ•-.. .,.,--,-~---· •~ ·r"--- ........••••3.• .... .,..r _... ... -

2. What is ~ complaint?
A p.J.aliIDis the pleading alleging the plaintiff's cause or causes
of action. (Rule 6, Sec. 3.)

3. What is a third-party complaint?

A tHir -P-ar!Y. comP-laln 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-party defendant, for contribution, indemnity, subrogation or any
other relief, in respect of his opponent's claim. (Rule 6, Sec. 11.)

~ . 4. Give examples of a proper third-party complaint.

~
The following are examples of a proper third-party complaint:
a) X and Y are solidary debtors; but P, the creditor, files a
complaint against X alone. X may file a third-party complaint against Y
for ...contribution;
b) S sold his car to B, but the certificate of registration remained
in the name of S. The car was involved in an incident that caused
damage to P. P sued S as the registered owner. S may file a third-party
complaint against B for indemnity; · ·

74 75

....
 QUl:STIONS AND I\NSWEHS IN
REMEDIAL LAW
c) M was lndobtod to N In the sum of P1 Million. Tho dobt was
socur d by o pledgo. Loter, O, with the consont of M, assumod lho
payment or the obllgolion. If N mos on action for collocllon against 0, 0
may me a thlrd-party complaint against M for subrogation; and
d) A sold a parcel of land to B. C filed an action against B for
recovery or possession of the land. B may Ole a third-party complaint
against A for his warranty against eviction - which Is any other relief.
5. P was a passengerof a Jeepneywhich was struck by a
delivery van becausethe latter had In turn been hit from behind by
a bus. P, who sustained Injuries, sued the Jeepney owner based
on his contract of carriage. DefendantJeepneyowner lmpleaded
the driver and owner of the bus as third party defendants. In turn,
the Insurer of the bus was lmpleaded as fourth party defendant.
Defendantjeepney owner was absolved, but the third and fourth
party defendants were made liable based on tort. Can.,thlrd c)fld
fourth a defendantsbe held liable on tort eve!:! if the cause of
action in the mal P.l.run.t~.!Il§ WUJ..l'.iwalm~{dpnd@nts {the
ee ne ow e ),.was based.on.cDn.trac~? - ,
I
~?'.The pri~ary_ pu~ose of t_he rule on t~ird-_(a~?J~~~~-). P..<~~y
complaint rs to avord circultry of action and to dispose in one litigation
the entire subject matter arising from the facts. It is immaterial that the
third-party plaintiff asserts a cause of action against the third-party
defendants on a theory different from that asserted by the plaintiff
against the main defendant. It has been. held that a defendant in a
contract action may join as third-party defendants those liable to him
in tort for the plaintiffs claims against him. (Sama/a v. Victor, G.R. No.
53969, Feb. 21, 1989.)
6. What Is an answer?
An nswet is a pleading in which a defending party sets forth his
defenses. (Rule 6, Sec. 4.)
7. Give the kinds of defenses, and explain each.
They are: (a) e t , and (b) afflmJa ve ~ .
8
A . . '' A CQ
. ense _,s the specific denial of the material fact or
facts alleged _rn the pleading of the claimant essential to his cause or
causes of actron. (Rule 6, Sec. 5[a].)
76
RULE 6 - KINDS OF PLEADINGS
8. "!.~.a~ ~!flrmatlvedefensesrJlay a defending party set up
In his answer? -
A · g · party:] olloWtng:-affirmative
tf.tntQS: 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. (Rule 6,
Sec:t5[b].)'
Also, any of the grounds for a motion to dismiss provided for Irr
Section tof Rule 16 may be pleaded as an affirmative defense in the
answer. And if no motion' to dismiss has been filed by the defending
party, t,Je may move for preliminary hearing thereon as if a timely motion
to dismiss had been filed. (Rule 16, Sec. 6.)
9. The rule Is that a defending party who sets up an affir-
mative defense hypothetically· admits the material allegations
t
In he pleading of the claimant Does the rule on hypothetical
1
admission apply to Instanceswhere the ground relied upon by the
defending party is, say, payment?
INo) wtien, for example, a in~tion to dismiss is based on
pay~en( waiver, abandonment, release, compromise, or other forms
of extinguishment ~&ations!Dthe motion to dismiss does not only
hypothetically but a admit the facts alleged in the complaint,
i.e., the existence of the obligation or debt. So that when a motion to
dismiss on these grounds is denied, what is left to be proven at the
trial is no longer the existence of the debt but the fact of payment or
non-payment, or release. etc., of the debt. (Ha/imao v. Villanueva, Adm.
Case No. 3825, Feb. 1, 1996.)
1 o. What Is a counterclaim?
a· is any claim which a defending partr may have
against an opposing party. (Rule 6, Sec. 6.)
77

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
11. State the kinds of counterclalrn'and their distinctions.
.. ·-·· -- - . - .
.: . Counterclaim may eit~~r.Q~_compulsol)' 9. _perm ~s. e.
The following are the distinctions between compulsory counter-
claim and permissive counterclaim:
A. corop_plsory, co:unterclaim arises out of or is connected with the
transaction or occurrence constituting the subject matter of the oppos-
ing party's claim; a permisSiw:coOnterclalln may not arise out of and
may not be connected with the transaction or occurrence constituting
1
the subject matter of the opposing party's claim;
a) A SbmQulsory, a te.Idaimi is barred if not set up in the
answer {or in the amended answer); while a pennlssiv_e counterdaim is
not barred even if not set up in the answer;
b) Plaintiff need not answer a .compulsor:y.coun . tclfflm; while
plaintiff must answer a~ e a, ;
c) If plaintiff does not answer a cmnpulsor.y..::co:unter.ciaim, he
cannot be declared in default; while the plaintiff who does not answer a
meraa may be declared in default in respect thereto.
d) A penmsStVe-OOtJmemla1m, being an initiatory pleading,_
requires a certification on non-forum shopping; a cmnp.UISOJY'.CO.Unte.J-
elaim does not require a certification on non-forum shopping. (Cruz-·
Agana·v:·Santiago;.tagman,G-R.-No;-1-39018,-April--1-1;--2005.)-,-· - ~-- -'
. A comp_ut a i -~nsweiiiil-.:. sfrjc"eJCis
inseparable from the claim of the plaintiff. If the plaintiff were to' ans'wer
the compulsory counterclaim, he would merely be pleading the~-same '
facts raised in his complaint. (Ballecer v. Bernardo, G.R. No. L-21766,
Sept. 30, 1996 [18 SCRA 291].) . _ :1 :· ·· , future litigation? ·· .... , ·"
A pe_ issive eountercla·
~.:tie:answ.er:ed. But· there is no
need to file an answer until the prescribed docket fee for 'the perrnisslve
counterclaim shall have been paid. It is only when the prescribed
docket fee has been paid that the court acquires jurisdiction over such
permissive counterclaim. (Gegare v. CA, G.R. No. 132264, Oct. '8, 1998
. [297 SCRA 587].)
Before the trial court may acquire jurisdiction over iper:mlssl e
CQl&Gaims, docket fees thereon must first be paid. (Lascano v.
Universal Steel Smelting Co., Inc., et al., G.R: No. 146019, June 8,
·2004.)
78
UU(I
RULE 6 - KINDS OF PLEADINGS
A per.missiv counterct . . . .
th t may be fl d ~ 1lh is essentially an independent claim
I
_a e separatE1IY m another case. (Lafarge Cement Philip-
pmes, Inc., et al. v. Continental · · · ·· · ·- ... ~. ·· · ·: · ··· · · · ...... · ·
155173, Nov. Cement Corporation, et al., G.R. No.
231 2004.)
12.
. ~ It arises out of or is necessarily connected with the transac-
t10~ or occurrence that is the subject matter of the opposing party's
claim;
· · Ill.)' It does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction;
c It must be cognizable by the regular courts of justice;
9.).,
1
. It must be within th~Ci°ris~ction of the court both as to the
amount and the nature thereof, exce that in an original action before
the RTC, the counterclaim is considered compulsory regardless of the
amount thereof; and
e')> It must already be existing at the time the defending party
files his answer. (Rule 6, Sec. 7 and Rule 11, Sec. 8.)
13.· . Defendant falls- to interpose-a· counterclaim-arising-out
I
of, or: is necessarily connectedwith, the transaction or occurrence
of the 'plaintiff's suit because said counterclaim djd not exist or
has not yet matured at the time the defendant filed his answer. Is
the defendant barred from interposing such a counterclaim in a
· ·
.. Qthe. defendant is not barred fror:11 interposing such a counter-
claim in 'a future litigation. The reason is that a counterclaim that is
not yet existing or has not yet mature~ at the ti!11~ th~ defendant files
his answer is a (Q_ermj55ive counterdalllU even If It anses OUt of, or is .
necessarily connected with, the transaction or occurrence that is the
subject matter of the opposing party's claim. (lntramuros Administration
v. Contacto, et al., G.R. No. 152576, May 5, 2003.)
The defendant, however, may present his counterclaim . that
matured or was acquired by him after he has already served his answer
by supplemental pteadin;.baforajudg . (Sec. 9, Rule 11.)
79
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW RULE 6- K/PIDS OF PLE/,DltlGS

14. X auod Y. In his answer,• Y asserted a countorclnlm

On ~ohalf of L and M, CCC moved to dismiss LCP's compulsory
against X's lawyor, alloglng that tho lawyor oncourngod and as- countorcfalm. · --· , ··· - -· ·· · ·-· · .. -·
slstod tho plaintiff In Instituting tho unfounded clvll action. May n
Questions:
-
··-- . .. .. --- ..
- .. -· ... _ ~ # .. .. -- "'.

counterclaim be assortod against X's lawyor In tho samo suit?

@ The lawyer cannot attend to his duties If Instead of defending a) May a compulsory counterclaim lmplead persons not
parties to the orlglnal complaint?
his clients, he has also to defend himself In the same action. Tho do-
fendont may, however, file a separate suit against the lawyer. (Chavez b) Should summons be served on CCC, L, and M?
v. Sandiganbayan, G.R. No. 91391, Jan. 24, 1991 [193 SCRA 2{32].)
c) Should CCC, L, and M file an answer to the compulsory
counterclaim?
15. A criminal case for estafa was flied against X on the
complaint of Y. Alleging that the case was nothing but a product d) May CCCmove to dismiss the counterclaim on behalf of
of Y's Imagination, X filed a counterclaim against him In the same· Land M?
criminal case. If you were Y, what motion would you file?
tf'ei , a compulsory counterclaim [and for that matter, even a
If I were Y, I would file a 'onJa:dismis.sJhe:counte i oun- permissive counterclaim or cross-claim] may implead persons not
terclaims, cross-claims, or third-party complaints are not allowed in cri- parties to the original complaint. This is allowed under Section 12, Rule
minal cases. The remedy of the accused js to litigate his cause of action 6 which provides: "When the presence of parties other than those to
which could have been the subject-of his counterclaim (or cross claim the original action is required for the-granting of complete relief in the
or third-party complaint) in a separate civil action. (Rule 111, Sec:·1:) determination of a counterclaim or cross-claim, the court shall order
them to be brought in as defendants, if jurisdiction over them can be
16. As joint debtors, Q and Rowed X P1 Million evidenced obtained." The bringing in of new parties to the action at any stage
by a promissory note. There was another transaction between R before judgment is to avoid multiplicity of suits.
,! ... ···- - .., __ . -· -·- -- ····-~ - - ...
and X - which was the sale of X's land to R. Alleging that X did
not fulfill his obligation under the deed of sale, R filed an action
against him for specific performance. In the same civil case, X set
up-·a counterclaim aga,11st R. for the payment
·- - ·- . -- •-
of P500,000under· .
the
I
promissory note. May X implead Q as defendant for purposes of
the counterclaim? --- -- --·--- -- ··········-······-

Yes. A defendant who sets up a counterclaim against the plajntiff ·

may implead a person who is a stranger to the action as additional
not
The rule is that a defendant in a compulsory counterclaim need
file
an respoiisiv~ pleading as said defendant is deemed to have
adopted the allegations in the complaint as his answer. · I'
I
defendant so that complete relief may be granted by the court 1ri the
determination of the counterclaim. As joint debtor, R is liable to pay only to:CC JID ·nor~ an IM. c:
I I
'
one half of P1 Million. Q is liable to pay the o~~r ~alf. Therefore, X may CCC can move to. dismiss the compulsory counterclaim against
implead Q as defendant on the counterclaim if complete relief is to be him and he can even raise grounds that pertain to L and M. But4he
granted by the court. (Rule 6, Sec. 12.) canQQJ a.tiOJ t ismiss:!
I the..same and . nt
·tu (Lafarge Cement Philippines, Inc. v. Luzon
any a uth on...7. O ·
17. CCC filed a complaint against LCP with the RTC for Continental Land corp; et al., G.R. No. 155173, Nov. 23, 2004.)
payment of a sum of money. LCP filed an answer denying the
allegations in the complaint and asserting a compulsory counter· Pl I tiff flied a complaint for reconveyance and dama-
18
claim against CCC and two other individuals, namely: L and M. • tha d fendant In due time, defendant filed his answer
ges against e e ·

80 81
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
where he asserted a counterclaim against the plaintiff for moral,
actual, and. exemplary damages, as well as attorney's fees and
costs, on account of the "malicious and unfounded action" filed
by the plaintiff against him. Is defendant's counterclaim permis-
sive or compulsory?
11 m ulso ; therefore, defendant is correct in asserting it
In his answer. A compulsory counterclaim cannot be the subject of a
separatesuit. (Tiu Po, et al. v. Bautista, et al., G.R. No. L-55514, March
17, 1981.)
19. Suppose defendant's compulsory counterclaim is made
the subject of a separate suit, what Is the remedy of the plaintiff
(who Is now the defending party Insofar as the compulsory coun-
terclaim Is concerned)?
Plaintiff should move to dismiss the compulsory counterclaim on
the ground of either - ·
a) ,l Rt.CKl!HltJ, (or /Is pendens, or outer action pendant) - if
both actions are still pending;or
b) ~flt& - If the opposing party's claim, Involving the
same transaction or occurrence as the compulsory counterclaim,
has already been adjudicated on the merits by a court of competent
Jurisdiction, and'the judgment therein has already become final. This
Is because w~a~ _Is barred by prior judgment are not only matters
squarely raised and litigated, but all such other matters as could have
been raised but were not. (The Visayan Packing Corp. v. CA, G.R. No.
L-29673, Nov. 12, 1987.)
1• 20. P flied a complalnt for unlawful detainer against D. If o
has a counterclaim for reimbursement of, the useful expenses he
had Incurred on the leased premises, may he file a separate suit to
recover such useful expenses?
I
No Well-established is the doctrine that the counterclaim for
reimbursement of the useful expenses is in the nature of a compulsory
counterclaim, and the failure to set it up in the same ejectment suit bars
the right to raise it in subsequent litigation. (Cabangis v. CA, et el., G.R.
No. 83722, Aug. 9, 1991.)
82
RULE 6- KINDS OF PLEADINGS
21. What are the c •t .
mining whether a n e~a or tests that may be used In deter-
countercla1mis compulsory or permissive?
Fou1nowrn'"g·.,,a=··~C01ei-C--·ter:ia.o
tes~
a,) .Are the issues of fact and law raised by the claim and
counterclaim largelythe same?
. )" Would res JU
· d!1cata bar a subsequent suit on defendant's
claim absent the compulsorycounterclaimrule?
. ~ ~ill substantially the same evidence support or refute
plaintiff s claim as well as defendant'scounterclaim?
~ Is there any logicalrelation betweenthe claim and the coun-
~~g1:.t? (Alday v. FGU Insurance Corp., G.R. No. 138822, Jan. 23,
. Another !est is the "campellln est Of mpulsoaness" which
requires a logical relationshipbetween the claim and counterclaim
that is, where conductingseparatetrials of the respective claims of the
parties would entail a substantial duplication of effort and time by the
parties and the court. (Quintanilla v. CA, G.R. No. 101747, Sept. 24,
1997 (279 SCRA 397).)
22. What Is a cross-claim?
a
A crosa:eJaj s any claim by one party against co-party arising
out of the transaction or occurrencethat is the subject matter either of
the original action or of a counterc!ajm therein. (Rule 6, Sec. 8.)
23. What Is a reply?
A pty is a pleading, the office or function of which is to deny, or
allege facts in denial or avoidanceof new matters alleged by way of
defense in the answer and therebyjoin or make issue as to such new
matters. (Rule 6, Sec. 10.) ..
24. How may the plaintiff deny new matters alleged In
defendant's answer?
Plaintiff may deny new mattersalleged in defendant's answer -
a) by filing a reply and deny such new matters; or
b) by not filing a reply, and all the new matters alleged in the
answer are deemed controverted. (Rule 6, Sec. 10.)
83
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW

Thus, the filing of a reply is optional, because Section 10 provides:

"If a party does not file such reply, all new matters alleged in the answer
are deemed controverted." But, if the defense set up by the defendant
is founded on an actionable document, the plaintiff must file a reply, RULE7
denying specifically under oath such actionable document. Otherwise,
the plaintiff will be deemed to-haveadmitted thegenuineness and due PARTS OF A PLEADING
execution of such actionable document. (Rule 8, Sec. 8.)

25. After service of defendant's answer, plaintiff wants to 1. What are the parts of a pleading?
introduce a new cause of action. May the plaintiff set up his new
cause of action in a reply? - · - The following are parts of a pleading:C{;SA VC
No. It is not the office or function of a reply to set up a new cause a) . ai:2.tibA. The caption sets forth the name of the court, the
of action or to amplify the complaint. The only purpose of a reply is to title of the action, and the docketnumberif already assigned. As stated
deny or allege facts in denial of new matters alleged by way of defense in Capitle, et al. v. Elbambuena, et al., G.R. No. 169193, Nov. 30,
in the answer. (Magnolia Corporation, et al. v. NLRC, et al., G.R. No. 2006, the full names of all the real parties-in-interest whether natural
116813, Nov. 24, 1995.) or juridical persons or entities authorized by law shall be stated in I
the caption of ther complaintor petition.This is based on Section 1 of I
Rule 7 that provides: "The title of the action indicates the names of the I
parties. They shall all be named in the original complaint or petition; I
but in subsequent pleadings, it shall be sufficient if the name of the !I
first party on each side be stated with an appropriate indication when I
I
there are other parties." In Galindo, et al. v. Roxas, G.R. No. 147969,
Jan. 17, 2005, the caption of the complaint:"Heirs of Marciano Roxas,
represented by. Reginald S. Roxas, as plaintiffs" was held insufficient ·I
because it did not state the namesof the heirs of Marciano Roxas.
'I I
b) SDJff The body of the pleadingsets forth its designation, the
allegations of the party's claims or defenses, the relief prayed for, and
,. the date of the pleading.
c) Slgn_atll[e) Everypleadingmust be signed by the party or his
counsel. I
d) ss. The address is required for service of pleadings, 'I
judgments, etc., and thereforeit should not be a post office box.
e) ti'enfiMtiOA But pleadings need not be· verified, unless
specifically required by law or rule.·
f) eiii'tlflcll imns a sha ing. This certification is
{
required in complaints or other initiatory pleadinqs" I

84 85
 "''l1JTIT"'''
!

QUESTIONS AND ANSWERS IN RULE 7 ~ PARTS OF A PLEADING

REMEDIAL LAW

2. Howis a pleadingverified? q) Petition for Writ of Habeas Data;

A pleading is verified by an affidavit that the affiant has read the r) Petition for Cancellation or Correction of Entries in the Civil
pleading and that the allegations therein are true and. corr~ct of his Registry;
personal knowledge or based on authentic re~ords. V~nficatron ~as~d
on "information and belief' or on "knowledge, information and belief' rs s) Petition for Constitution of Fa~ily Home; ·
insufficient. (Rule 7, Sec. 4.) t) Petition for Annulment of Judgment;

3. What pleadings,petitions, or applications are required u) Petition for Declaration of Absolute Nullity of Void Marriage;
to be verified? v) Petition for Annulment of Voidable Marriage;
The followirig'~re\.~q.ulred to be verified: w) Petition for Legal Separation; and ··-·· '
a) All pleadings allowed to be filed in cases ·governed by the
x) Petition for Guardianship of a Minor.
Rule on Summary Procedure;
b) Petition for Certiorari; 4. Section 3, Rule 7 requires that a "pleading must be
signed by the party or counselrepresentinghim xx x." What is
c) Petition for Prohibition; the nature of counsel'sauthorityand duty to sign a pleading?
d) Petition for Mandamus; Counsel's authority and duty to sign a pleading is personal to
e) Petition for Quo Warranto; him; therefore, he cannot delegate such authority to just any person.
(Republic of the Philippines v. Ke_nrick Development Corporetion, G.R.
f) Complaint for Expropriation;
No. 149576, Aug. 8, 2006.) · ·
g) Petition for Contempt, when the proceeding for contempt is lj '

Thus, a pleading signed by a person other' than the party or his

initiated other than by the court motu proprio;
counsel may be treated as an unsigned pleading ttiat'p'roduces no legal
h) Petition for Review to be filed with the Court of Appeals effect. (Sec. 3, Rule 7.)
under Rule 42;
.. i) '· . Petition for Review on Certiorari to be filed with the Supreme 5. When may a pleading be treated as an unsigned
Court under Rule 45; pleading?

j) Petition for Relief from Judgment; A pleading required to be verified which contains ~ verification
' . ' ' based on "information and belief," or upon "knowledge, information and
k) Application for the Issuance of a TRO and/or Writ of Preli- belief,• or lacks a proper verification: shall be treated as an unsigned I
minary Injunction; pleading. (Rule 7, Sec. 4.) 1 ,

I) Applicqtion for Receivership; . __ ·

6. What is the effect of an unsigned pleading?·
I
m) Application for Support Pendente Ute; ,.
An unsigned pleading produces no legal effect.
n) Petition for Change of Name;
The court may, however, allow such deficiency to be remedied, if it
o) Petition for Writ of Habeas Corpus; . ,. ..-. appears that the same was due to mere inadvertence and not intended I
p) Petition for Writ of Amparo; for delay. (Rule 7, Sec. 3.) ·

86 87
 OUE!;TIO I AND AN" NEF , I I
REME"OIJ VI
1. What I the effect of a complaint filod by ono who clalms
• to represent a party as plaintiff but who, In fact, Is not authorlz.od
to do so?
• In Manila International Airport Authority
v. Rivere Village Lessee Homeowners Association, tnc., G.R. No.
143870, Sept. 30, 2005, the Supreme Court, citing Aron v. Rea/on,
G.R. No. 159156, Jan. 31, 2005, said: "The party bringing suit has the
burden of proving the sufficiency of the representative character that
he claims. If a complaint is filed by one who claims to represent a party
as plaintiff but who. in fact. is not authorized to do so, such complaint
is not deemed filed and the court does not acquire jurisdiction over the
complaint. It must be stressed that an unauthorized complaint does not
produce any legal effect."
8. In relation to pleadings,what are the grounds upon which
a party's counsel may be subjected to appropriate disciplinary
action?
The grounds are:
If he deliberately files an unsigned pleading;
, ) If he signs a pleading in violation of the rule;
) If he alleges scandalous or indecent matter in the pleading;
q) If he fails to promptly report to the court a change of his
address. (Rule 7, Sec. 3.) ,
9. Defendant filed ·a motion ·for-extension ortfme..
fu-fife
answer. He, himself, signed his own motion. The court denied
defendant's motion on the ground that without the signature of a
lawyer thereon it was a mere scrap of paper that did not deserve
any attention. Is the court correct?
~Ol:NO;;mitt]i.-~not~ru~:!9·A party may sue or defend an action
prose because the rule allows him to sign his own pleading. Rule 7,
Section 3 provides that every pleading-must-be signed ·by ·the· party or
counsel representing him. · · · · ·· · ···- ·- · -···
10. What does a counsel's signature on a pleading constl-
lute? (or, What is the significance of a counsel's signature on a
pleading?)
The signature of counsel constitutes a certificate by him that he
has read the pleading; that to the best of his knowledge, information,
88
anr1 he:liof th!:re ia a g(.)Od groond to wpport it~ and that it is not inter-
posed for delay. (Rulo 7, &c, 3.)
11. When 1-s there forum shopping?
There is forum shopping Ym<::Mver, as a result of an adverse
opinion in one forum, a part'/ seeks a favorable opinion (other than
by appeal or certioran) in another. The principle applies not only with
respect to suits filed in the courts but also in connection with litigation
commenced in the courts while an administrative proceeding is
pending in order to defeat administrative processes and in anticipation
of an unfavorable administrative ruling and a favorable court ruling.
(Villanueva v, Adre, G.R. No. 80863, April 27, 1989 (172 SCRA 876].)
Forum shopping is an act of malpractice that is proscribed and
condemned as trifling with the courts and abusing their processes. It
is improper conduct that tends to degrade the administration of justice.
(Beneco, Inc. v. NEA, G.R. No. 93924, Jan. 23, 1991 (193 SCRA 250].)
In Philippine Woman's Christian Temperance Union, Inc. v.
Abiertas House of Friendship, Inc., G.R. No. 125571, July 22. 1998
(292 SCRA 785), it was held that forum shopping exists where the
elements of · · nde · are present or where a final judgment in one
case will amount t ·ucf in another.
12. A writ of preliminaryinjunction was issued by the RTC.
The defendant against whom the writ was issued went to the CA
and questioned the propriety of the issuance of the writ. Then, the
defendant filed a motion with the RTCto lift the writ. Is defendant's
motion tenable?
No. After the question of whether the writ should be annulled was
elevated to the CA, the RTC has lost jurisdiction to act on defendant's
motion. in fact, by filing a motion with the RTC to lift the writ, defendant
himself tried to render his petition with the CA moot and academic. In
so ·doing,-defendant-showed ·his· disrespect-towards·the· court and is
guilty of forum shopping. (Joymart Corp. v. CA, G:R: No- 88705;·June
11, 1992.)
13. May a party file a petition for habeas corpus despite the
pendency of a petition for certiorari that questions the validity of
the order granting ball, which order Is precisely the very basis of
the petition for habeas corpus?
89
l

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
No. Where a party files a petition for habeas corpus despite the
pendencyof a petition for certiorari that questions the validity of the
ordergrantingbail, which order is preciselythe very basis of the petition
for habeas corpus, he is guilty of forum shopping. (Pulido v. Abu, G.R.
No. 170924, July 4, 2007)
14. The rule requires that a complaint or other initiatory
pleading asserting a claim for relief must be accompanied by a
sworn certification against forum shopping, and this sworn certi-
fication may either be contained therein or annexed thereto. Sup-
pose plaintiff failed to comply with this requirement, can he amend
his complaint so as to Incorporate therein the certification against
forum shopping?
No. Failureto complywith the requirementof certificationagainst
forum shoppingis not curable by amendmentof the complaintor other
initiatorypleadingbut shall be causefor the dismissalof the case. Such
dismissal, however, is without prejudice unless otherwise provided,
upon motion and after hearing.The submissionof a false certification
or non-compliancewith any of the undertakingstherein shall constltule
indirect contempt of court, without prejudice to the corresponding
administrativeand criminalactions.If the actsof the party or his counsel
clearly constitutewillful and deliberateforum shopping, the same shall
be ground for summary dismissal with prejudice and shall constitute
direct contempt,as well as a cause for administrativesanctions. (Rule
7, Sec. 5.) ·- - -: -··· _- - .. - -·---
---- Please note that If the dismissalIs without prejudice, the complaint
may be refiled. Of course, this time, the pleader must already comply
with the requirementof certificationon non-forumshopping.
Under SC Administrative 6irculars Nos. 04-94 and 2 1, the
complaint and other initiatory p eadings referredto are the ~nal civil
complaint,.J;O(mterclaim.,s.rc{ss-claim._thil'a (fourth, etc}party complaint,
_s;orilplaint-in-intervention~etltion, or..awffcationwherein a party asserts
his claim for relief. Note, however,that compulsorycounterclaimdoes
not require a certificationon non-forumshopping.
15. Suppose the plaintiff files .a complaint without a certifi-
cation on non-forum shopping, 'inay he cure the defect by submit-
ting the required certification after the filin'g of _the complaint?
90
-•M·-•11•wa111 .. ~111~111~111...._..,,,~·,00.-•"-
RULE 7 - PARTS OF A PLEADINGS
~o: ack of certificationon non-forumshopping is not curable by
submissionthereofafter the filingof the complaintor initiatory pleading.
(Uy v.Lena Bank, G.R. No. 136100, July 24, 2000.) ·
. .But, in Loyola v. CA, 245 SCRA 477 (1995), the filing of the cer~
t1ficat1on on non-!orumshoppingone day after the filing of an election
protest was consideredsubstantialcompliancewith the requirement.
In Roadway Express, Inc. v. CA, 264 SCRA 696 (1996), the
Supreme Court allowed the filing of the certification on non-forum
shopping 14 days beforethe CA dismissedthe petjtion for r~view.
v.
In Uy Landbank, G.R. No. 136100, July 24, 2000, the Court had
dismissed Uy's petitionfor lack of verificationand certification on non-
forum shopping. It, however,reinstatedthe petition after Uy submitted
a motion to admit the certificationon non-forumshopping.
In Shipside, Inc. v. CA, G.R. No. 143377, Feb. 20, 2001, when
petitioner's resident manager,Balbin! filed the petition, there was no
proof attached thereto that Balbin was authorized to sign the verifi-
cation and the certificationon non-forumshopping. Consequently, the
petition was dismissed. After the dismissal, the petitioner filed a motion
for reconsideration, attachingthereto a certificate issued by the board
secretary that 10 days prior to the filing of the petition, Balbin had been
authorized to file the petition.
It was pointed out that In Loyola, · Roadway, and Uy, there were
special circumstances or compellingreasons that justified the relax-
ation of the rule. In Shipside,the merits of petitioner's case constitute
special circumstancesor compellingreasonsthat justify tempering the·
requirement of certificationon non-forumshopping.
16. The certification on non-forum shopping contains cer-
tain undertakings to be performed by the party signing It, such
as: if there ls another action or claim pending between the same
parties, he must make a complete statement of the present status
thereof; and, if he should thereafter learn that the same or similar
action or claim has been filed or is pending, he shall report that
fact within five days therefrom to the court In which the complaint
or initiatory pleading has been filed. Failure to comply with any of
the undertakings constitutes violation of the prohibition against
forum shopping. What is the difference between failure to comply
"!_ith the certification requirement and violation of the prohibition
against forum shoppii;tg? ·
91
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
u to ly witn--the certificat19 uireme t is erely a
cause for dismissal, without prejudice, of the complaint or initiatory
pleading; while, fifioo o :th rotiibltioo agal s Qflfl'fi:s gAjng is
a ground for summary dismissal of the complaint or initiatory pleading,
and it constitutes direct contempt. (The United Residents of Dominican
Hill, Inc. v. Commission on the Settlement of Land Problems, G.R. No.
135945, March 7, 2001.)
17. P sued D for damages. In his answer, D pleaded a com-
pulsory counterclaim for moral and exemplary damages by reason
of the unfounded suit filed against him. P moved to dismiss the
compulsory counterclaim on the ground that said counterclaim Is
not accompanied by a certification against forum shopping. The
trial court dismissed the counterclaim. Is the dismissal correct?
What is the remedy of the defendant!.
Answerto e 1t: No, the dismissal is not correct.
The rule requiring certification against forum shopping. has ri~t
been contemplated to include a compulsory counterclaim because this
kind of counterclaim can only be properly pleaded in an answer. (Santo
Tomas University Hospital v. Surla, G.R. No. 129718, Aug. 17, 1998 [294
SCRA 382]; Ponciano v. Parente/a, Jr., G.R. No. 133284, May 9, 2000.)
r to the S ®',: Ordinarily, the remedy of the
defendant whose counterclaim is dismissed is to appeal from the order
of dismissal. This is because an order dismissing a counterclaim is
final order. However, in the problem presented, the special civil action
of certiorari under Rule 65 would be an appropriate remedy because
appeal would be ineffective if not futile considering that not a single
piece of evidence has yet been presented ..
At this point, it may also be mentioned that application for search
warrant does not require certification against forum shopping. (Savage
v. Taypin, G.R. No. 134217, May 11, 2000.)
There is no requirement that motions for extension of time be
accompanied by a certification on non-forum shopping. (Maga-Land
Resources and Development Corp. v. C-E Construction Corp., et al.,
G.R. No. 156211, July 31, 2007.) · . . '
the
0
\ Also, a case pending before Ombuds~an cannot be con-
'f'-o~· sidered for purposes of determining forum sh~pping as the power of
92
RULE 7 - PARTS OF A PLEADINGS
the Ombuds~an is only investigative in character and its resolution
cannot cons.titute a valid and final judgment because its duty is to file
the appropriate case before the Sandiganbayan. (Sevilla v. Laggui,
A.M. No. RTJ-01-1612, Aug. 14, 2001.)
A certification on non-forum shopping is not required in petition
for issuance of a writ of possession because a petition for issuance
of a writ of possession is not a complaint or other initiatory pleading.
Allb.o.Y.Q de · a petition, it n: ract a · . (De Guzman
v. Chico, G.R. No. 195445, Dec. 7, 2016.)
-J 18. The rule In Section 1, Rule 17 ls that the plaintiff may dis-
miss his complaint by filing a notice of dismissal at any time before
service of the answer or of a motion for summary judgment As a
general rule, such dismissal Is without prejudice. Suppose P flied a
complaint against D, and before service of the answer or of motion
for summary judgment, P caused the dismissal of his complaint by
filing a notice of dismissal. Months later, P filed the same complaint
against D. In the certification on non-forum shopping appended to
the second complaint, P failed to mention about the prior filing and
dismissal of the first case. Is P's failure to mention about the prior
filing and dismissal of the first case fatal?
@An omission in the certification ~n non-foi:u~ shoppin·g· about
any event or case which would not constitute res 1ud1cata or ht1s pen-
dentia is not fatal. In the problem presented, the dismissal of the first
a case would not constitute res judicata precisely because such dismissal
Is without prejudice to the refiling of the case. (Roxas v. CA, G.R. No.
139337, Aug. 15, 2001.)
19. Who must execute the certification against forum
shopping?
The certification against forum shopping mWI! Y
tba: party not his counsel. (Santiago v. CA, G.R. No. 128517, Sept.
10 1998'· Escorpizo v. University of Baguio, G.R. No. 121962, April
30: 1999 '[306 SCRA 497).) Ttie certific lion must be executed b~ t.he
art _ leader and not by his counsel. The re~on, as stated. i_n D1g1tal
p/ y p
M C CA 328 SCRA 286, is that only the petitioner (or
crowave orp. v. ' t h h I 't' t d
plaintiff) himself has actual knowledge of whether or no e as ru ra e
similar actions or Rroceedings in different courts or agencles .. ~ven his
...... - .. - - · re of such fact. But note that as held in Uy v.
counsel may be unawa
93

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Bank of the Philippine Islands, 336 SCRA 419, the apparent merits of
the petition should be deemed as a special circumstance or compel-
ling reason to exempt a party from the sanction of the denial of its
petition tor non-compliance with Section 5, Rule 7 of the R~les of Court.
Besides, the Supreme Court has the power to suspend its own ~u~es
where the ends of justice would be served thereby. (Marcopper Mining
Corp. v. Solidbank Corp., et al., G.R. No. 134049, June 17, 2004.)
However the certification against forum shopping executed by
the Solicitor General in cases where he is the counsel is a substantial
compliance with the requirement. (CIR v. S. C. Johnson & Son, G.R.'. t-Jo.
127105, June 25, 1999.)
_ And, in BA Savings Bank v. Sia, G.R. No. 131214, July 27, 2000,
it was held that the requiremenLthat.the party _hirnself.~.~-o.u)g sJg]1 t~e
certification on non-forum shopping cannot be imposed on artificial
persons, like corporations, for the simple reason that they cannot
personally do the task themselves. Thus, the Board of Directors may
pass a resolution authorizing a specific person to sign the certification
on non-forum shopping.
Also, in Robem Development Corp. v. Quitain, G.R. No. 135042,
Sepl 23, 1999 (315 SCRA 150), it was held that the certlfjcation on
non-forum shopping executed by the acting regional legal counsel of
the National Power Corporation in Mindanao was sufficient because
as in-house counsel and officer, his basic function was to prepare legal
pleadings and to represent NPC-Mindanao in legal cases, and he was
the officer who was in the best position to know and certify if a similar
action had already been filed and pending with the courts.
But, in Sy Chin, et al. v. CA, et al., G.R. No. 136233, Nov. 23,
2000, the Supreme Court said: MWhile it is true that the petition may
have been flawed as the certificate of non-forum shopping was signed
only by counsel and not by the party, suffice it to say that this procedural
lapse may be overlooked in the interest of substantial justice."
94
RULE 7 - PARTS OF A PLEADINGS
may sign the certificate of non-forum shopping on behalf of the
corporation. er.a ce ay: •lim c rtlflcatl
wll outnee r eso on:,
@. These officers are: 1 the Chairperson of the Board of
Directors; (2') the President of a corporation; 3) the Gen~ral Manager
or Acting General Manager; (4 Personnel Officer; and @) Employment
Specialist in a labor case. (Cagayan Valley Drug Corporation v.
Commissioner of Internal Revenue, G.R. No. 151413, Feb. 13, 2008,
545 SCRA 10, 17-19.)
21. Suppose there are several plaintiffs or petitioners, may
the certification on non-forumshopping be signed by only one or
some 'of them?
@in Loquias v. Office of-the- Ombudsman; G.R. No. 139396,
Aug. 15, 2000, 'twas helctttiat·a r a-· or titiOners musts· n
trurcertificatio on-rron-forum·s
But, in Dar, et al. v. AlonzerLegasto, et al., G.R. No. 143016, Aug.
30, 2000, it was held that where the spouses are plaintiffs in the same
complaint and they have a common interest over the property subject of
the litigation, the signing by one spouse of the certification substantially
complies with the rule regaraing certification on non-forum shopRing.
·v.
Again, 'in Docena, et al. Lapasura, et al., G.R. No. 140153, March
28, 2001, the spouses filed a petition for certiorari, but the certification
on non-forum shopping was signed by the husband alone. It was held
that there was substantial compliance since the subject of the case for
recovery was the conjugal property.
• And in Hamilton v. Levy, et al., G.R. No. 139283, Nov. 15, 2000,
the certiflcation on non-forum shopping was not signed by a!I the parties
because two of them were abroad. It was held that the fact that they
were abroad is reasonable cause to exempt them from compliance with
. .
the requirement that they personally execute the certification.
Also, in Gudoy, et al. v. Guada/quiver, et al., G.R. No. 15116, May
27, 2004, only one ?f the nin1e plaintiffs signed the certifi~tion o.n. non-
forum shopping, but it was tield that there was ~ub~t.ant1al compl~an~
because all nine plaintiffs filed as co-owners pro indiviso a complaint for
quieting of title/As co-owners, they have joint inte·r~st in the undivided
Whole. ' ·
95
 ~11·-···

QUESTIONS AND ANSWERS IN

RULE 7 - PARTS'OF A PLEADINGS
REMEDIAL LAW

In PET Plans v. CA, 443 SCRA 510 (2004), the Supreme Court
ruled that th Le=m_quicin ersonal ignlng::of tbe:.certlfJcatio on
forum hopping.: aid down i oqui~ a.~.:be_:ml~ ~QYlde be
petitiorutrs:::@JMI}! ith the followin cond1tioru>: iflr~t, pet1t1on.~rs ~ust
show justifiable cause for their failure to per.sonal~ys1.gn the cert1fica!1?n;
and s-econd, ~ey must prove that the outright dlsmissal of the petltlon
would seriously impair the orderly administration of justice.
It was also held in Cavile, et al. v. Heirs of Clarita Cavile, et al.,
G.R. No. 148635, April 1, 2003, that there was substantial compliance
with the Rules when only one petitioner signed on behalf of all the other
petitioners the certification on non-forum shopping as the petitioners,
being relatives and co-owners of the properties in dispute, shared a
common interest in them, had a common defense in the complaint for
partition, and filed the petition as a collective, raising only one argument
to defend their rights over the properties in question.
A party's failure to sign the 'certification against forum shopping is
different from the party's failure to sign personally the verification. The
certificate of non-forum shopping must be signed by the party, and not
by counsel. The certification of counsel renders the petition defective.
On the other hand, the requirement on verification of a pleading is a
formal and not a jurisdictional requisite. It is intended simply to secure
an assurance that what are alleged in the pleading are true and correct
and not the product of the imagination or a matter of speculation,
and that the pleading is filed in good faith. The party need not sign
the verification. A party's representative, lawyer or any person who
personally knows the truth of the facts alleged in the pleading may sign
the verification. (Pajuyo v. CA, et al., G.R. No. 146364, June 3, 2004;
Villacar Transit, Inc. v. Catubig, G.R. No. 175512, May 20, 2011.)
.. ... ···•••• ••• I•

', :,
22. What are the distinctions between verification and cer-
, • ·, .. ,I
tification on non-forum shopping?
The following are the distinctions: fl

a) »'er:ificatlon is a statement under oath that the allegations in

the pleading are true and correct of the affiant's personal knowledge or
based on authentic records; while certification n non~forunuhoppj[\g .I. I
is a statement under oath that the plaintiff or claimant has not com-
menced any action or filed any claim involving the same issues in any
court, tribunal, or quasi-judicial agency and that no such other action or
claim is pending therein; I•

b) \1.etlfl_caliol'\may be required not only in complaints and other

initiatory pleadings but even in responsive pleadings; while cectlflcati9n
o non.._forum:sl:fopplng is required only in complaints and other initia-
tory pleadings; ' .. /.
c) Ordinarily, laclu>i.Yerificatlon may be cured by amendment
or by requiring the party to verify his pleading; while iacic_oJ-Cetlification
oanors orurn.."SbopJf g cannot be cured by amendment;
d) l!acls:Dl enfication may not result in the dismissal of the I•
''
•t•
' I I , · ,I
complaint; lack:of certification on -o shopping may result in the
dismissal of the complaint; and
' '
e) Verification may be signed by counsel; while aectifLcallo n
• ; !l . ·.
no ·focum ~opplnl) must be signed only by the party himself.

96 97
 RULE 8 - MANNER OF MAKING ALLEGATIONS IN PLEADINGS

tion of the mind of a person may be averred generally." Thus, alle-

gations of fraud in a complaint must be supported with statements
of facts showing the commission of fraud. What is the purpose of
RULES the rule? ~

In Guy, et al. v. Heirs of the late Grace G. Cheu, et et., G.R. No.
MANNER OF MAKING ALLEGATIONS 189486 and G.R. No. 189699, Sept. 5, 2012, the Supreme Court, citing
IN PLEADINGS other cases, explained that the purpose of the rule is to "appraise the
other party of what he is being called on to answer, and so jnat it may
be determined whether the facts and circumstances alleged amount to
1. What facts should be alleged in a pleading? fraud." These particulars, the Supreme Court also said, would neces-
sarily include the time, place and specific acts of fraud committed. "The
A pleading should allege only ulti'mate facts, not evidentiary facts.
reason for this rule is that allegation of fraud concerns the morality of
Thus, Section 1 provides: MEvery pleading shall· contain in a the defendant's conduct and he is entitled to know fully the ground on
methodical and logical form, a plain, concise and direct statement of which the allegations are made, so that he may have every opportunity
ultimate fa~on which the party pleading relies for his cla1m (if he is to prepare his case to clear himself at the trial."
-tj.A the plaintiff or daimant) or defense (if he is the defending party), as the
rj.i.; u-i.cY case may be, emitting t:!:le stateffleR·t af mere·evieteRtiaty fasts." - 5. · What is an actionable document? How may a party plead
~.t ~ an actionable document?
v,ll-
2. What are ultimate facts? ... - evidentiary
. . . .. .. .. . ..facts?
·-· ... ·- An actionable document is a document upon which a cause of
tl:lti&~:faj~d:s~arethe essential fa constituting the plaintiff's action or defense may be based.
cause of action. A fact is essential if it cannot be stricken out without Or"!~~
There are tvro Wff'1 s actionable
leaving the statement of the cause of action insufficient. and these are:
~ T\J\l,~
EiriQel[miiU:lac:IS are those facts which are necessary for deter- · - a) · by setting forth ttie substance of such document in the
mination of the ultimate facts; they are the premises upon which pleading and attaching the original or copy of said document thereto as
conclusions of ultimate facts are based. (Tantuico, Jr. v. Republic, G.R. an annex; or
No. 89114, Dec. 2, 1991, citing I Moran, Rules of Court 213 [1963], and
b)
cwr ,4~~
b;-settm9 re~ saiet
~. ny t4(W )'Ja1
eteetimeflt ·, erbBtim ifl t-Ae pleading.
other cases.)
(Rule 8, Sec. 7.) .
Y. 3. May a pleading, however, allege provisions of law?
6. How may a party contest the genuineness and due exe-
@but only if the pleading is an answer. cution of an actionable document which is the basis of an action or
defense?
tf the p!eading is an answer and the defense relied upon is based
on law, the defending party may state in his answer the pertinent
pro .risions thereof and their applicability to him. (Rule 8, Sec. 1.)

4. Section 5, Rule 8 provides: "In all averments of fraud or But the requirement of an oath does not apply if the adverse party
d~s not appear to be a pact,, to the document, or when compliance
mistake, the circumstances constituting fraud or mistake must be
with an order for an inspection of. the, original document is refused.
stated with particularity. Malice, intent, knowledge or other condl-
(Rule 8, Sec. 8.) ·

98 99
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
1. What are deemed admitte~ if an a~ionable document,
which is properly pleaded, is not denied specifi_cally under oath?
1Jja ng a-re deemecfaclm
), the genuineness of the document; and
t,) its due execution. (Imperial Textile Mills, Inc. v. CA, G.R. No.
~6~?; ¥at:Eh 22, 1990.)
·Genuineness a Due Exea.ition" means that the party .against
whom the actionable document is pleaded admits that he signed it
willingly and voluntarily; that it was sign_~d by _an_other f?r him and under
his authority; and that at the Ume he signed tt, 1t was m the_ words ~~d
figures exactly as set out in the pleading of th~ _party .re!y.1119 ~pan_ it;
and that the formal requirements of the law, such as sweanng and
acknowledgment, are waived by him. Thus. at the trial, the party who
relies on such implied admissions should not present evidence ori these
matters anymore, because facts already admitted need not be proven.
8. If the genuineness and due execution of an actionable
document are deemed admitted because of adverse party's failure
to make a specific denial under oath, must this document still have
to be presented formally in evidence? .... , ,. ,;-, ····- - ······ ···· -
There is no need to formally present it in evidence because it
is already considered an admitted fact. (Philippine American General
lnsurance-co:,-rnc~ 'et ancs-weefUnes,-1nc~ et al.; G:R: No:·87434,
Aug:5;-1992.)-
9. What are the exceptions to the. rule- that a party against
whom an actionable document Is pleaded· is deemed to have
admitted its genuineness and due execution unless he specifically
denies it under oath? ·
The exceptions are:
@) when the adverse party does not appear to be a party to the
actionable document;
b~ when compliance with an order for an inspection of the
original document is refused; (Rule 8, Sec. 8.)
c) when the instrument is not really an actionable document,
but is merely evidentiary of the claim or of the existence of the action-
able document; and · ·
100
RULE 8 - MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Q) • when the party who has the benefit of the implied admission
waives such benefit (as when he presents evidence to prove the
genuineness and due execution of the document; or when he does not
object to the evidence of the adverse party showing that the document
is a forgery).
10. During his llfetime, X signed a conditional deed of sale
over a parcel of land in favor of Y. After tfle death of X, Y filed an
action against the heirs of X for specific performance. The con-
ditional deed of sale was properly pleaded in Y's complaint as
actionable document because it was the basis of his action. The
heirs of X made a·sp·ecific .. denial of.the-geiluinen·ess and·due exe-
cution of the deed-of sale but their denial was not under oath. r
ey aeemea to have actmltte1fthegenulneness and doe~execut
of tfiiaiiaohalif? -
. @Although the de~d ~f ~~ie is. ~n actionable document, the
denial of the heirs of X need not be under oath because they are not
parties to the deed of sale. The·party was X hjmself. (Rule 8, S~c. 8.)
I I
12. If the party aga.lnst whom an actionable document· is
properly pleaded does not deny its genuineness and due execu-
tion under oath, may he stlll set up defenses like forgery, fraud,
mistake, or insanity?
He cannot set up forgery as a defense because forgery is incon-
siste~t ~th his implied admission. . .
-- --- ... - -----·
101
j
I
i
 QUESTIONS AND ANSWERS IN RULE 8 - MANNER OF MAKING ALLEGATIONS IN PLEADINGS
REMEDIAL LAW

But he may still plead other defenses, like fraaa, mistalat\ insanity, information will not be considered as specific denial. His denial lacks
pu,sc::aiµtiol, ~I. ,want -:oonsidemttOn, 'llegality, payment, nova- the element of sincerity and good faith, hence insufficient. ·
tion, and ottief. fen k:tl nconsistent :with his implied
Thus, if an allegation directly and specifically charges a party to
admiSslOn.
have done, performed, or committeda particular act, but the latter had
13. What are the ways of making specific denial? not in fact done, performed, or committed it, categorical and express
. denial must be made since the occurrence or non-occurrence of the
are three,va~: facts alleged may be said to be within the party's knowledge. Here, a
by specifically denying the material avennent in the pleading statement of lack of knowledgeor infonnation is insufficient. (Morales v.
of the adverse party and setting forth the substanceof the matters upon CA, et al., G.R. No. 91003, May 23, 1991, citing Moran, Comments on
which he relies for such denial; the Rules of Court 334 [1979).)

b) . if a party desires to deny only a part. of an averment, by

s~fying so much of it as is true and deny only the remainder; and ..
: .. · '15."''i'o ~roduce.the effect'ofs~ecific deniat.must thedenlal
beunder oath? . ..
C) by an allegationof lack of knowledgeor informationsufficient ~· @he.de~ial: if alreadyspecific, need not be under oath.
to form a belief as to the truth of the material averment in the pleading
of the adverse party. (Rule 8, Sec. 10.) .S.Utimtb10ollowmg instances the specitic:denia mu er
oatbl .
A denial not made in any of the ways mentioned above may be
considereda general denial which is tantamountto an admission. a) allegations of usury in a complaint to recover usurious
interest are deemed admitted if not specifically denied under oath; and
An answer that states that the defendants "specifically deny"
the allegations in the complaint regarding the execution of the loan ·': ~- -·tl) . ' ttie genuine~~s; a~d. due execution. of an 'a;ctior:_,able docu-
agreement,the promissorynote, and the comprehensivesurety agree- ment properly pleaded are deemed admitted if not specifically denied
ment "for being self-serving and pure conciusions intended to suit under oath. (Rule 8, Secs. 8 and 11.) ·
pJaintiff's purposes" does;.notp:mc1.o.ee..:tne..:effect of a:sp.ecific:Henial . In To deny the genuineness and due execution of an actionable
Go Tong Electrical Supply Co., Inc., et al. v. BPI Family Savings Bank, document, the defendant must declare under oath that he did not sign
tnc., G.R. No. 187487,June 29, 2015, it was explained tt-tat a genef~I the document or that it is otherwise false or fabricated. (Permanent
denial does not become specific by the use of the word t.specifically." Savings &Loan Berucv: Velarde, 482 Phil.· 193 [2004).)- .. · ....... · .......
Neither does it become so by the simple expedient of coupling the
same with a broad conclusionof-law that the allegations contested are 16. P filed a complaint against D for specific perfonnance.
"self-serving"or are intended"to suit plaintiffs purposes." In his complaint, he also claimed PS00,000 as moral damages. D
flied his answer In due time, but he failed to deny speclfically the
14. A statement of lack of knowledge or Information suffi- allegation of moral damages In P's complaint. Is D deemed to have
cient to form a belief as to the truth of the material averment In the admitted the allegation of moral damages?
pleading of the adverse party Is a specific denial. t when.wlll'J
not conaldered •• a • lflc ilenlal? No. While the rule is that material avennent in the complaint shall
be deemed admitted when not specifically denied, o BP- ly
When the matters of which a defendant alleges having no tl:O unt.of un lqu i:li.l . Thus, even if the allegations as
knowledge or information sufficient to form a belief are plainly and to the amount of unliquidateddamages are not specifically denied, they
necessarily within his knowledge, his alleqed ignorance or lack of are not deemed admitted. (Ru/a 8, Sec. 11.)

102 103
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW

17. X versus Y for collection of the sum of P1 Miiiion. In his

answer, Y alleges that he owes X the sum of P400,000 only and that
the sum of PS00,000 represents usurious interest. X filed a reply
specifically denying the allegation of usury. His denial, however, RULE 9
is not under oath. For his failure to have his denial under oath, Is
X deemed to have admitted the allegation of usury In Y's answer? EFFECT OF FAILURE TO PLEAD
f.lb, because in this particular case tbe:allegatio~of.:usoey s:ane-w .,
rnattecset: i'J=wBY aefense:· Y:. ans~r. It is not required that
1. What Is the rule on waiver of defenses?
X's denial be under oath. In fact, if X did not file a reply, the allegation
of usury, being a new matter alleged in Y's answer, is deemed contro- It is the rule requiring all defenses and objections to be pleaded
verted. (Rule 6, Sec. 10; R~le 8, Sec. 11.) either in a motion to dismiss or in the answer, and those not pleaded are
de~m~~ waived~ th_o~~ mentioned i~ _O & A No. 2 below.
18. Suppose Y paid X the sum of P1 Million. Later, Y filed a - . . . ,, . . ,.

complaint against X to recover the sum of P600,000. In his-com-

plaint, Yalleged that the amount of P600,000 representedlusurious
interest because the amount he had borrowed from X was .only
P40o,ooo. x filed an answer, specifically denying the allegati~n of
usury. His denial, however, was not under oath. Is X deemed to
have admitted the allegation of usury? '
Yes. Here, · Jhe::plain · · d:tJiSIComplaint · {o..._..,.e.,..·
.....__..-~,-
•&uioos ~t. lbe:ru~nat.:an;allegatio~f:us_w:y,-·
to:m::owcuswiouscest are <ieemoo.:admitted if notdenjed:sp_eci-
ficaliy.:under.::oa#l. (Rule 8, Sec. 11.)
ev
The'following are not deemed waived:
a)' lack of jurisdiction over the subject matter;
I:>) pendency of another action between the same parties for
the same cause (/is pendens, litis pendentia, or auter action pendant);
aint
c i> bar by prior judgment (res judicata); and · · · · · · · · ··
rd bar by statute of limitations (prescription).
~y of the aforesaid grounds appears from the pleadings or the
evidence on record, the court shall dismiss the claim or the complaint.
(Rule 9, Sec. 1; Dr. Mariano Favis Sr., et al., v. Juana Gonzales, et et.,
G.R. No. 185922, Jan. 15, 2014.)
'! The defense of prescription may be considered by the courts
motu proprio if the facts supporting the ground are apparent from the
pleadings or the evidence on record. (Caltex [Philippines], Inc., et al. v.
Aguirre, et al., G.R. Nos. 170746-47, March 9, 2016.)

3. Suppose it is clear from the allegations in the complaint

that venue is Improperly laid, may the court dismiss the complaint
,, : ' motu proprio? ·

. ~ the court cannot motu proprio dismiss the case on ground

of improper venue. The court should wait for a motion to dismiss or
a responsive pleading from the defendant raising the objection or

104 105
 :mm· . ..,,q- .. ·-:::w - l!lt ::1rnamrar·:SiEEf11 fr;;::3ettrnee:::111•-=""~"''he::::1'1 7;;;.UlJiiii@III
~ llltffin'.1lllt'.1Mr'"u- ... -··-· --"'""-"'-"'"-"""'""""""''"'""""""'"""""'__,.,,_,,._,l

QUESTIONS AND ANSWERS IN RULE 9 ~ EFFECT OF FAILURE TO PLEAD

i
REMEDIAL LAW

affirmative defense of improper venue before dismissing the petition. But, may;tfie coui':t:tEK!Ulre Ilia plaintiff to prese fiis eviden i
(Rudolf Lietz Holdings, Inc. v. The Registry of Deeds of Parafiaque City, Yes. By way of exception, the court, in its discretion, may require the
G.R. No. 133240, Nov. 15, 2000.) plaintiff or claimant to present or submit his evidence. The reception of
evidence may ,be delegated to the Clerk of Court, provided the Clerk of
The reason is obvious. The defendant may even waive the ques-
Court is a member of the bar. (Rule 9, Sec. 3.) ·
tion of improper venue.
Note that tbe:_couctmay..:d.elega,te the teception of evroence:to its
But the court sna11-motu proprio dismiss the clairn .or tile com laint
Gle of Court who is a memoer. of tile 6ai in the following instances
on roam::I of: ) lack of jurisdiction over the subject matter, b) pendency
of another action between the same parties for the same cause (/is only: . , ·,:,:,.

pendens, /itis pendentia, or auter action pendant); } bar by prior judg- a in default or ex parte hearings; an · ID•in any case where the
ment (resjudicata); or ) bar ~Y statute of limitations (pressription). , parties agree in writing. (Rule 30, Sec. 9.)
auc. ro "fbu1t or f/alOr11'-:1"t
A~-~· spea~ing o~ =:
~L
propri~--~!smissal, __ t~!':tria -court~~
also:nrotu..1>..1®.JiQ.:dismiss:tbe comptamtimder tetiLoo~LRule..:Jrif, 6.
'
A complaint asseljllng .a common cause 'of action was
without any justifiable reason, the plaintiff fails to appear on ~ date of filed against several defendants. Sdme of these defendants filed
the presentation of his evidence iri chief on-the complaint, offle fails to an answer, but the others .dld. not. On .motion. of the. plaintiff, the
prosecute his action for an unreasonable length 'of time, oA'fe fails to defendants who did not file an answer were declared in default. Is
comply with the Rules of Court or any order of the court. it correct for the trial court to first hear the case ex parte as against
the defaulted defendants and render a default judgment against
4. Summons was served on the defendant on July 1.6, 2014. them, then proceed to hear the case as to the non-defaulted defen-
He did not file his answer within the reglementary period. What dants?
should the plaintiff do if he wants to have the defendant declared No. In the problem presented, the trial court shall try the case
in.cietau1t1· ---- -- • · ·
against all the defendants upon the answer thus filed and render
The plaintiff must: (~ file a
motion to declare the defendant in judgment upon the evidence presented. It is not within the authority of
;.;.d
default; ) serve a notice of his motion on the defendant [which means, the trial court to divide the case by first hearing it ex parte as against
that there must.be a notice of hearing appended to his motion]; and the defaulted defendants and rendering a judgment by default against
i;1show proof of failure on the part of the defendant to file his answer them, t en proceed to hear the case as to the non-defaulted defendants.
within the reglementary period. (Rule 9, Sec. 3.) . (1-feirs of Mamerto Manguiat, et al. v. CA, et al., G.R. No. 150768, Aug.
20, 2008, and its companion case) " ... 'I
_ Tim:1 · . ono.riimlU.RLQR ·o ecla e a defendant in def It
a~.!~~_f!:J_l~__s_l_ea!'~ jt ~P. Jo J!l~ claiming party to protect his interest.
7. Is a defendant in default entitled to notice of subsequent
(Sablas v. Sablas, G.R. No. 14456~. July 3, 2007) _ ---···----~---·····- proceedings?
5. On motion of the plaintiff, the defendant was declared ~ he is entitled to notice of subsequent proceedings, but he
in default for his failure to file an answer within the reglementary cann¥ake part in the trial. (Rule 9, Sec. 3[a].)
period. May the court already render judgment without requiring
The question may be asked this way: Wfia is:ttie effect of ah
the plaintiff to present evidence?
Qfd r..o :Oefaul And your answer should be: A party in default shall
Yes. The rule now is that where the defending party is declared in be entitled to notice of subsequent proceedings but not to take part in
default, the court shall proceed to render judgment granting the claim- the trial. ·
ant such relief as his pleading may warrant..

106 107
 . QUESTIONS AND ANSWERS IN
REMEDIAL LAW
_ 8. . What are the remedies of a defendant declared in default
for his failure to file an answer?
The following:
a) Mooo lo Sel skit, tl1e, Oro r·ci De ul. This motion
must be under oath and must be filed at any time after notice of the
declaration of default and before judgment. The defendant must show
by an affidavit of merit that his failure to file an answer was due to
fraud, accident, mistake, or excusable negligence, and that he has. a
meritorious defense. (The order of default should not be confused with
the judgment by def~uf t. The order of default is the order that declares
the defendant in default. The orcle{oT cfefault;beirig .merely interlocutory;
is not appealable); :r:::;4 · motion for bill of particulars, the trial court did not act with grave abuse
~-~-·-~· .. · T, M~.. ' of discretion. (Republic of the Philippines v. Sandiganbayan, et al., G.R.
b) o o or New Tria,l his motion - which should be on the
qround of fraud, accident, ~ke, or.~able negligence - may be
filed if_ the trial court has already rendered a judgment by default, but
said judgment has not yet become final;
c) All ea/1 ~re nas;alre!J"iiytieenaziiag,:nenf6yaefa11Jt. The
appeal should be filed within 15 days from notice of such judgment. The
denial of the motion to set aside order of default may be assigned as an
error in the appeal, but defendant may still appeal even if he did not file
a motion to set aside order of default;
d) · et, ion or Relief from 'Juagment on ant of1Hese grounqs:
fraud, accident, mistake, or excusable negligence. Provided no a eal
was taken from the judgment, this petition should be filed withi 6 ays
from notice of judgment and six months from entry of such judgment;
Ac.t, o Annul.Jut/: ma o tfie gm.u e ·nsic or col-
__..,..,-.utJ
. . .. This action-may be instituted within four years from the
disc~very of the extri~sic or collateral fraud; and
,f) Ce'ftiorari1 if .defendant was improperly declared in default
(as when he filed his answer within the reglementary period, but till he
was declared in default) cir if a motion to set aside order of default was
denied by the trial court, and the denial thereof is tainted with grave
abuse of discretion. This special civil action of certiorari should.be filed
not later than 60 days from notice of the judgment, order or resolution
sought to be assailed, or 60 days from notice of the denial of the motion
for reconsideration, if one was filed. (Rule 9, Sec. 3; Talsan Enterprises,
Inc. v. Baliwag Transit, Inc., G.R No: 126258, July 8, 1999.)
108
RULE 9 - EFFECT OF FAILURE TO PLEAD
9. · Defendant M was declared In default for his failure to
file an answer. While the case was pending, M died. t:us-r~pre·
sentatives, who substituted for him, failed to file a motlon.to lift
order of default. Nevertheless, the executor of M's estate flied a
motion for leave to file a responsive pleading, three motions for
e_xtension to file an answer, and a motion for bill of partlcularsL..ail
of which were granted by the trial court. What Is the legal effect of
the granting of the motions for extension to file answer and. the
motion for bill of particulars? · ·
• ,·, ,· .I I
The effect is that ll:Le default oi'cler: against ttie aeceased--:defen-
dan is deemed lifteti. In granting the' motions for 'extension and the
No.' 148154, Dec. 17, 2007.)
,fr 1 O. May a defendant who was declared In default for his
failure to file his answer appeal from the Judgment by default
rendered against him by the trial court? May he seek reversal of
the Judgment on the basis of evidence submitted by him In the
appellate court?
• e_:may..,;egR.Ol.:f ]®QIM b)'. defaul And in his
appeal, he may assail the judgment on the ground, inter alia, that the
amount of the judgment is excessive or is different in kind from that
prayed for, or that the plaintiff failed to prove the material allegations in
his complaint, or that the decision is contrary to law.
· 11. What is the extent of relief that the court may award In a'
judgment by default? ·
A judgment rendered against a party in defaalt shall not exceed ·
the amount or be different in kind from that prayed for nor award
unliquidated damages. (Rule 9, Sec. 3[d].)
109
 QUESTilO~S A D ANSWERS IN
REMEDIAL LAW

12. Are there cases where defautts are not allowed?

~nd these cases are:
a) actions for annulment of marriage; RULE 10
b) actions for declaration of nullity of marriage;
AMENDED ANcf SUPPLEMENTAL
C) actions for legal S~()?_ra~~n· _:__ -- ---
PLEADINGS
/d) actions for expropriation; and
e) actions for forcible entry or unlawful detainer, and other
actions governed by the Rule on Summary Procedure. 1. How is amendmentof a pleading made?
~me01 ·una ~
-. a by adding or striking out an allegation or the name of any
party; or

iP)' by correcting a mistake in the name of a party or a mistaken

or inadequate allegation or description in any .other respect. (Rule 10,
Sec. 1.)

2. When is amendment (of a pleading) a matte~ of right? -

by leave of court? _ · - , I
. 0 ·- ' I
!

A party may amend his pleading once as s,.matter of right at any

time before a responsive pleading is served or.~n the case of a~.
I
at any time within 10 days after it is serveg/After a responsive pleading
has been served, substantial - repeat, substantial - amendments
may be made only upon leave of court. (Rule 10, Secs. 2 and 3.) - .
I
i

,'"\ Unlike under the old rule, amendment may now substantially alter
I
the cause of action or defense. (Valenzuela v. CA, G.R.,No. 131175,
Aug. 28,.2001.)
Whether made as a matter of right or with leave of court, an
Ii
amendment may now substantially alter the cause of action or defense
as stated in Section 3, Rule 10 of the 1997 Rules of Civil Procedure.
l
In Lisam Enterprises, Inc., et al. v. Banco de Oro Unibank, et al., G.R. I
No: 143264, April 23, 2012, the Supreme Court explained: 'The courts
should be liberal in allowing amendments to pleadings to· avoid a
multiplicity of suits and in order that the real controversies between the
I
parties are presented, their rights determined; and the case decided-on
the merits without unnecessary delay. This liberality is greatest in the
.i , I• •:i early stages of a lawsuit, especially in this case where the amendment

110 111
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
was made before the trial of the case, thereby giving the petitioners all ·
the time allowed by law to answer and to prepare for trial."
3. P filed a complaint against D. Within the reglementary
period for filing an answer, D filed a motion to dismiss, serving P
with a copy thereof. May P still amend his complaint as a matter of
right?
~because a motion to dismiss is not a responsive pleading.
(Rule 10, Sec. 2.)
4. Suppose in the problem presented, the court dismissed
the complaint on motion of D. On July 16, 2001, P was s_e~ed with
a copy of the order of dismissal. May P still amend his complaint
as a matter of right on July 30, 2001?
@) As of July 30, 2001, no responsive pleading has yet ~e~n ·
served, and the order of dismissal has not yet become final. · · · · · -
5. Suppose in the problem presented, P, who was served .
with a copy of the order of dismissal on July 16, 2001, amended his.
complaint on August 3, 2001,may he still do so as a matter of right?
No more. He cannot anymore amend his complaint as a matter
of--right; neither can he amend it with leave of court because there. is
nothing more to amend on August 3, 2001 for the-simple reasonthat the
order--of-dismissaJ has-a.lread ::final.
6. X filed a complaint against Y and Z, asserting claims
against each of them. Y filed his answer, while Z filed a motion to
dismiss. May X still amend his complaint as a matter of right?
@may amend his original complaint as against Y, but only with
leave of court - s:a.;matter, f glil~nymore becaus Y.:has
alreacty..filed..llis~r.
J stiU:::amend is-original:compJaln as
a..ul-llli1~·The fact that Y had already filed his answer does
not bar X from amending his original complaint once as a matter of
right against Z. The rule is that where some but not all the defendants
have answered, the plaintiff may still amend his complaint once, as a
matter of right, in respect to claims asserted against the non-answering
112
RULE 10 -AMENDED AND SUPPLEMENTAL PLEADINGS
defendants, but not as to claims asserted against the defendants who
have already filed their answers. (Siasoco, et al. v. CA, et al., G.R. No;
132753, Feb. 15, 1999.)
Also, Republic v. Africa, G.R. No. 1723~5, Aug. 28, 2007, holds
that where some but not all the defendants have answered, plaintiffs
a
may amend their complaint once as matter of right in respect to claims
asserted solely against the non-answering defendants.
7. a
If amendment is matter of right, but the trial court
denies the amendment, what is the remedy against the court's
denial?
{Mj!.rul!w.n.ws~sthe remedy.
• "'11
8. If amendment requires leave of court, but the trial court
refused to grant leave for the amendment of the pleading, what is
the remedy against the court's refusal?
The remedy is ora if it can be shown that the trial court's
refusal to.qrant leave is tainted with grave abuse of discretion amount-
ing to lack or excess of jurisdiction.
9. When may the trial court refuse amendment? (Or, the
question may be: What are the tlmltations to the right of a party. to
amend his pleadio.g1)-·.. .. .. . . .. . . - . -· ·· ··
fcl) If a responsive pleading has already been served, and the
motion for leave to amend is made with intent to delay;
(15, ·.
If the purpose of the amendment is to confer jurisdiction
upon the court; or ·
c) If the purpose of the amendment is to cure the defect of non-
existent cause of action.
, In Siasoco, 'et al. v. CA, et al., 'G.R. No. 132753, Feb. 15, 19_99,
the Supreme Court, citing Campos Ruedo Corp. v. Bautista, 6 SC~
240, Sept: 29, 1962, held that an amendment cannot be allowed when ·
the court has no jurisdiction over the original complaint and the purpose
of the amendme'nt is to confer jurisdiction· on the court. (See elso:
Tirona, ·et al. v. Alejo, et al., G.R. No: 129313, Oct. 10, 2001; Rosario
113
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
and Untalan v. Carangdang, et al., G.R. No. L-7076, 96 Phil. 945, 850
[1955)).
10. P filed a complaint against D in the RTC of Baguio. As
alleged in his complaint, the total amount of P's claim is P190,000.
D moved to dismiss the complaint, alleging that the RTC has no
jurisdiction over the subject matter of the action. P amended his
complaint by raising the amount of his claim from P190,000 to
P550,000 so as to bring his claim within the jurisdiction of the RTC.
Is the amendment proper?
a: The rule laid down in Gaspar v. Dorado, G.R. No. L-17884,
Nov. 29, 1965 (15 SCRA 331), is still a good rule insofar as the
P- 'ptio ainst e t to co ·fer. ·urisdiction is .conce ed.
The High Tribunal said that when it is evident that the court has no
jurisdiction over the person and the subject matter, then the court may
refuse amendment of the defective pleading and order the dismissal of
the case.
For, if the court has no jurisdiction over the subject matter of the
action, the only power that it has is to dismiss the case. A decision
rendered by a court without jurisdiction is a total nullity. (Solid Homes,
Inc. v. Payawal, G.R. No. 84811, Aug. 29, 1989 [177 SCRA 72).)
The amendment will not cure the defect of want of jurisdiction
because the right to amend is subject to the limitation that amendment
cannot be made if the purpose is confer jurisdiction upon a court. This
is so because where the court has no jurisdiction, the only power that
it has is to dismiss the complaint. The ruling in Tirona, et al. v. Alejo,
et al., G.R. No. 129313, Oct. 10, 2001, demonstrates that the right
-.
to amend is subject to some recognized limitations, thus: "The policy
in this jurisdiction is that amendments to pleadings are favored and
liberally allowed in the interest of substantial justice. Thus, amendments
of the complaint may be allowed even if an order for its dismissal has
been issued so long as the motion to amend is filed before the order of
dismissal acquired finality. Note, however, that it is not a hard and fast
rule. An amendment is not allowed where the court has no jurisdiction
over the original complaint and the purpose of the amendment is to
confer jurisdiction upon the court, or where the action originally pleaded
in the complaint was outside the jurisdictio~ of the court."
114
RULE 10-AMENOE
O AND SUPPLEMENTAL PLEADINGS
lead:~· a!~~~~:e amendment requires leave of court, but the
p rt h t th his pleading without first obtaining leave of
cou ' w a I s e standing of the amended pleading?
None. llh ded PeaI d.ing has.no standing, and tfle court:m:ay
.
order that:lt be..stricken:out.tor. havingbeen..fiJecUn Yiolation.Dt..the..mles.
12. What Is "amendmentto conform to the evidence?"
. ~hen issues not raised by the pleadings are tried with the express
?r implied consent ~f th~ parties, they shall be treated in all respects as
1f they ha~ been raised in the pleadings, and there can be an amend-
me~t to confer~ to the ·evidence. The amendment may be made, upon
motion of any party, even after judgment. But failure to amend does not
affect the result of the trial of the issues. (Rule 10, Sec. 5.)
In Diona v. Balangue, et al., G.R. No. 173559, Jan. 7, 2013, the
Supreme .Court ruled that amendment to conform to the evidence is
not feasible when the defendant is declared in default because Section
3(d), Rule 9 limits the relief that may be granted by the courts to what
has been prayed for in the comptalnt/secnon 3(d), Rule 9 states that
a judprnent renderec against a party in default shall not exceed the
amount or be different in kind from that prayed for/
13. What is "amendmentto authorize presentation of evi-
dence?" · •
If evidence is objected to at the trial on the ground that it is not
within the issues made by the pleadings, the court may allow the
pleadings to be amended, and shall do so with liberality, to authorize
the presentation of evidence. (Rule 10, Sec. 5.) ·
Thus, ~plaint tbat:state: n.~use....o: actiorrma be curedln
o e a s: (a)wy presentation of evidence to prove the cause of
action in which case the complaint may be amended to conform to the
evidence: or (Q):JMhe evidence is objected to and the trial court sustains
the objection, by amendment of the complaint with leave of court to
authorize presentation of evidence.
So also · ce:.ota:party.:ta::ratse:a:d.&lmse:i
· plaadillg
rtlilY. ' ureQJm.one::o . · s:
~ by _presentation of evidence to
prove the defense that is not raised, in which case. the an_swe~ may be
amended to conform to the evidence; or~ f the evidence rs objected to
115
 QUESTIONS AND ANSWERS IN RULE 10 -AMEN DE
D AND SUPPLEMENTAL PLEADINGS
REMEDIAL LAW

and the trial court sustains the objection, by amendment of the answer 17. How may a defendant
after the filing of his answer? set up a counterclaim that matured
with leave of court to authorize presentation of evidence.

14. What are the effects of an amendedpleading? He may set it up by • with the permission of
the court, before judgment. (Rule 11, Sec. 9.)
The following are the effects:
A counterclaim that arises or matures after the defending party
a) An amended pleading supersedes the pleading that it has filed his answer is a CIDJtardairn.
amends;
b) Admissions in the superseded pleading may be received in
evidence against the pleader, and
.. :···'
c) Claims or defenses alleged in the superseded pleading but
I , t
not incorporated in the amended pleading shall be deemed waived. ~ I

(Rule 10, Sec. 8.)

15. What are the distinctions between amended pleading

and supplementalpleading?
!r' . .., '•
The following are the distinctions:
a) The filing :ameooecl lea ifig may either be a matter • l •

of right or with leave of court; the filing f. :supp e e tal~Jgaditlg is

always with leave of court; ·
b) ~ai~ alleges facts that occurred before the
filing of the original pleading; $Upplemental leacliag alleges facts - ,,..,
,; (I\
,I - •, :·· ........ ' -
occurring after the filing of the original pleading; and
c) Arn'eooea::plea(lirfg supersedes the original pleading; sup-
pl does not supersede the original pleading but
assumes that the original pleading is to stand. (Rule 10, Secs. 2, 3, and
6; De/bros Hotel Corp. v. /AC, et al., G.R. No. L-72566, April 12, 1988.) '~ - -

16. How may a defendant set up a counterclaim that is

alreadyexisting at the time he files his answer?
.r
He may set up such counterclaim byjo_comor.a.ting'tinhls.answer. . ·, .. !I·., I\.

(Rule 11, Sec. 8.)

But, if the defendant (through oversight, inadvertence, or.excus-
able neglect) fails to set up his counterplairn that is already in existence
prior to, or at the time of, the filing of his answer, Ile-may 'i} leavs f
coort set:tt::op 6y;amendment before:joogme t. (Rule 11, Sec .. 10.) - J •••

116 117
 RULE 11 -WHEN T
O FILE RESPONSIVE PLEADINGS

A complaint Is not a responsivepleading· it is a pleading the filing

of which commences the civil action. But ' complain 8'e
ifll~ It should be filed upon the accrual of the cause of action, or at
RULE 11 · any time thereafter but beforesuch cause of action is barred by pres-
cription.
WHEN TO FILE RESPONSIVE PLEADINGS
ti'
2. May the trial court extendthe time within which to file
responsive pleadings?
1. What are the periods for filing of responsive plea~lngs?
Upon ~otion. a~d on.such terms as may beQ the court may
The following are the periods: extend the time within which to file responsive pleading. In fact, the
a) Answer to the complaint - 10 days after the service of court may also allow an answeror other pleading to be filed after the
summons if the case is governed by the Rule on Summary Procedure; time ~~ed b.Y, t~e Rules of ~ourt. (Rule 11, Sec. 11.)

. . . b) ..Answer to the complaint-~ days after.serviceof summons: . . _(n cases g~vemed by the RevisedRule on Summary Procedure,
the-court canMre,cte·nath~ timer for filing responsivepleadings.
c) Answer to the amended complaint - 15 days after service
of a copy thereof if amended complaint is filed as a matter of right; 1 O " · 3. May the trial court shortenthe time within which to file
days from notice of the order admitting the amended complaint if the responsive pleadings?
filing thereof requires leave of court;
~tl'ie court eanno e ·- · · · rssppn-
d) Answer of a defendant foreign juridical entity - 15 days if . . · ~mgs, except in quo warranto cases. In quo warranto, the court
summons is served on its resident agent; 30 days from receipt by the "may reduce the period providedby these Rules for filing pleadings x x
home office of the summons if summons is served on the government x.."·(Ru/e 66, Sec. 8.) ·
official designated by law to receive the same;
e) Answer to third-(fourth,etc.) party complaint-15 days from
service of summons;
f) Answer to complaint-in-intervention- 15 days from notice
of the order admitting the complaint-in-intervention;
. r
g) Answer to counterclaim/crossclaim -10 days from service .
I
thereof (but if the counterclaim is compulsory, it need not be answered); ~ • .•• •• ~ • t

h) Answer to supplemental complaint -10 days from notice of II

the order admitting the supplemental complaint;
I
i) Answer where summons is served through any of the modes t • l • I I.
of extraterritorial service on a non-resident defendant who is not in the :]
I
Philippines - within reasonable time which shall not be less than 60 •' I ,·
days after notice as the court may specify in its order granting leave to
effect extraterritorial service of summons; and
j) Reply - 1 O days from service of the pleading responded to. '· ~. ~ J. ,1 .....

118 119
 RULE 12-B
ILL OF PARTICULARS

either~ or~ it outri ht.

heard. (Rule 12, Sec.~ Qr allow the parties the_QQp_ortunity to be
RULE12 A motion for a bill of arti . .. • ·
therefore contain a notice pf h cul~rs 15 a ht,gable motion and should
0
BILL OF PARTICULARS -
court may deny or grant . h·eanng
O u t ng .. . · But
. . , it1 ·is one motion
t even without a hearing.f
· ·
which the

5. On motion of the d
1. What ~~ the purpose of a bill of particulars? a
plaintiff to file bill of rt' . ~fendant, the court ordered the
Its purpose is to make more definite any matter not averred with comply with the order~~ t~~u!~:hen and how may the plaintiff
sufficient definiteness in a pleading to enable the adverse party to ,: , . The plaintiff must co~ ith .
proper1y prepare his responsive pleading. (Rule 12, Sec. 1.) . . w the order of the court within 1 O days
' from. notice of the order • nles th·e court h as firxe d a diff erent penod.
.
The office of a bill of particulars is limited to making more particu-
lar or definite the ultimate facts in a pleading, not to supply evidentiary . . :he pl_aintiff may file the bill of particulars either in a separate
matters. (Republic v. Sandiganbayan,· G.R. No. 90478, Nov. ·21;·1991r) pleading or. in-an.amended pleading (Rule 12, Sec. 3.)

2. Because the complaint was shabbily crafted, the alle- 6. Is a bill of particulars a pleading?
gations therein are ambiguous, vague, Indefinite, and uncertain.
· · · No, it is not a pleading, but it becomes part of the pleading for
What is the remedy of the defendant?
which i~ is intended. (Rule 12, Sec: 6.)
The remedy of the defendant is to file a motion for a bill of particu-
lars, pointing out the defects complained of, the paragraphs wherein 1. Suppose the court, on motion of the defendant, issues
they are contained, and the details desired. (Rule 12, Sec. 1.) an order directing the plaintiff to file a bill of particulars, but the
But, if because of such ambiguity, vagueness, indefiniteness, plaintiff refuses to obey the order of the court, what is the effect
or uncertainty, the complaint fails to state a cause of action, then the of plaintiff's refusa_l to COIT!ply? Or, plaintiff complies but his com-
remedy of the defendant is to file a motion to dismiss on the ground that pliance is insufficient, what is the effect of plaintiff's insufficient
compliance? 1-~~t
the complaint states no cause of action under Rule 16, Section 1 (g).
t.a~c
3. When may a party file a motion for a bill of particulars? . If the plaintiff does not obey the order of the court. or in case of
insufficient compliance, . . . e
A party may file a motion for a bill of particulars before tie resP.Qmts ·pJ.e:amn~ th 12Qtlioas1thlHlH¥ to which the order was directed. (Rule
a pfea30J. Thus, a defending party may, before filing his answer, 12.-sec. 4.)
move for a bill of particulars. But if the pleading is a reply, he must file
his motion · ~~- (Rule 12, Sec. 1.)
Needless to say, a defendant who has already filed an answer
cannot anymore file a motion for a bill of particulars.
8. If a defendant fil~s- a motion for a bill of particulars, when
4. What does the rule require the clerk of court to do upon •
.must he file his answer?
• • • . ••
. ,
t • ~

the filing of a motion for a bill of particulars? Note that his motion.for-a bill of particulars may either be granted
Upon the filing of the motion for a bill of particulars, the clerk of or denied. After service of the bill of particulars (if his motion i~ granted)
court must immediately..lxing itlo:ttti-:attiiifflon of the:court which may or after notice of denial of hls motion, ~an~r

120 121
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW

witbin._the-:peiiocLio ich .he:was anti~~ :at the me otthe: filing of· i

than five ays In any eve t. (Rule 12,
motion, wh~cb::ssllillJ:()21:;bQ,Jless~
Sec. 5.)
RULE 13 '
9. P filed a complaint against D. On July 16, 2014, D was
served with S!Jmmons.On July 29, 2014, D flied a motion for a blll
of particulars. The trial court denied D's motion, and D received a
f ILING A Np SERVICE PE PLEADINGS.
notice of the denial of his motion on August 20, 2014. Until when JUDGMENTS, ANp PJHER PAPERS
may D file his answer?
D may file his answer until August 25, 2014. The rule is that D has 1. Define: a) Filing; b) Service.
the remaining period to which he was entitled at the time of filing of his
motion. But since the remaining period' at th~ time he filed his motion IElhn~ is the act of ~r::~g the pleading or other paper to the
clerk of court. · ..... ·
was only two days, he would be entitled to five days because the rule
provides that the period shall not be less than five days in any event. S-e · is the act of providing a party with a copy of the pleading
or paper concerned. (Rule 13, Sec. 2.)
cf'~ Ott'(r C.OlXt ~"' 01(.

2. If a party appears by counsel, upon whom shall service

be made?
If a party has appeared by counsel, ~.:upo bim:slial~
made upon f.iis counsel o one o them, unless service upon the party
himself is ordered by the court. (Rule 13, Sec. 2.)

. 3. What are the modes of filing of pleadings, motions,

Judgments, resolutions, orders, or other papers?
:•,. I .:r ,.•,
The following:
: , JH ( 'I? t
a) e.ers.onal ti.Jin~ By delivering the copy personany to the Clerk
,, I of Court; and
. b) E 'Ung 'by. rsg staraa.Jifilil. Note that filing by ordinary mail is
not allowed. (Rule 13, Sec. 3.) c.")Acc«otim:t ~
d°'.)t?~I
4. What are the modes of service of pleadingsor motions?
The following:
a) ersontil service By delivering personally a copy to the
Party or his counsel, or by leaving it in his office with his clerk or with
t: •
a person having charge thereof. If no person is found in his office, or
his office is not known or he has no office, then by leaving the copy
'I
between the hours of eight in the morning and six in the evening, at the
122
123
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
party's or counseI . s resldence• if known
. , with a person of sufficient age
and discretionthen residing therein; · ·
b) Sii5lf_oe all, 'Which may either be by registered m?I/ or
b ordina mail. Note, however,that service m~y be d?ne by ordinary
r:ail if no ~gi~try service is available in the locality of either the sender
or the addressee;and
c) Sa se ,ct. By delivering the copy to t~e Clerk ~f
Court, with proof of failure of both personal service and service by mall.
(Rule 13, Secs. 6, 7, and 8.)
5. What are the modes o/;-~~~j-~e of judgments,
orders, or resolutions?
The following:
a) Personal service; · ,,_,;, ·· ·,1'" .J .... :,_
b) Service by registeredmail; and
c) Service by publication,but only if the party is summoned by
publicationand he did not appe~r in the action. (Rule 13, ~e~-: ~.) .; , .
6. On July 16, 2014, a copy of the judgment was sent to the
defendant by ordinary mail. When do.es the judgment become final
and executory?
. .
The judgment will never become final and executory b ecause
the service thereof is fatally defective."Service of judgments and final
orders by€dinary maiDis not authorized: r. .
Under Section 9 of Rule 13, the modes of service of judgments,
final orders or resolutions are as follows:·(a) by personal service; (b)
by registered mail; and (c)·by1publication. But, a judgment may be
served by publication, at the expense of the prevailing party, only if the
defending party was summonedby publicationand has failed to appear
in the action. ·
7. P v. D for a sum of money. -Alleging that D's answer does
not tender an issue or it otherwise admits the material allegations
in the complaint, P filed a motion for judgment on the pleadings.
In due time, D filed his opposition. At the hearing on the motion
on October 1, 2014, the parties andthelr attorneys were present.
124
RULE 13 - FILING ANO SERVICE OF PLEADINGS,
JUDGMENTS, AND OTHER PAPERS
After the hearing and In the presence of the parties and their
attorneys, the trial ud uranted the !l.k>A.and dictated io open
court his ud meol..base.cl.oruhe_ple.adlngs. On October 18, 2014,
plaintiff filed a motion for execution, arguing that the Judgment
had already become final In view of the failure of the defendant
to appeal therefrom within 15 days from October 1~ 2014. Is the
plaintiff correct?
_{rfc;) The judgment never became final because of lack of proper
se;:11~her~of· One r~quisite of a valid judgme~t is that it must be in
writing. If a Judgmentrs not in writing, as when it is merely dictated in
open court, there can be no way it could be served on the parties through
final any of the modes authorized by the rules for service of judgments.
8. In an action quasi In rem, the defendant was summoned
by publication. He filed his answer in due time and went to trial. The
11' 'i.f.n,:. trial court rendered a judgment. May this judgment be served upon
the defendant by publication?
.
, .- @ because although he was summoned by publication, he
appeared in the action by filing his answer and, then, going to trial.
(Rule 13, Sec. 9.)
. . . 9. What is the rule on priorities of service and filing of
pleadings and other papers?
1
The rule is that whenever practicable, the service and filing of
pleadings and other papers shall be done personally. Except with
respect to papers emanating from the court, a 'resort to other modes
must be accompanied by a written explanation why the service or
filing was not done personally.A violation of this rule may be cause to
consider the paper as not filed. (Rule 13, Sec. 11.)
As held in Solar Team Entertatnment, Inc. v. Ricafort, G.R. No.
132007, Aug. 5, 1998, the rule on priorities of service as stated above
is 'mandatory. ·
Coca Cola Bottle Phils., Inc., et al. v. Cabalo, et al., G.R. No.
144180, Jan. 30, 2006, reiterates the rule that personal service under
Section 11, Rule 13 is mandatory.The rule gives the court the discretion
· to consider a pleading or paper as not filed if the other modes of service
and filing we.re resorted to and no written explanation was made as to
Wny personal service was not done.
125
 QUESTIONS AND ANSWERS IN RULE 13 - FILIN
REMEDIAL LAW JUDGMEN~;NADNSERVICE OF PLEADINGS,
I D OTHER PAPERS

The court's discretionary power to consider a pleading or paper appeal on August 14 2014
as not filed for violation .9.f .~.~-~!!9~ __ 1_1,J~.u.1~ .. 1.~.. mustbe exercised Was the notice of ap~eal fil, dor within 15 days from July 31, 2014.
properly and reasonably, taking into account the following factors: (a) e seasonably? _ .
~ He should have filed hi . ··
the practicability of personal service; (b) the importance of the subject
matter of the case or the issues involved therein; and (c) the prima facie
6 20
'
'hr. Under Rule 13 S ti is notice ~f appeal on or before August.
' ec ron 10 service by re . t d ·1 .
plete upon actual recei t b th • g1s ere ma, rs com-
merit of the pleading sought to be expunged for violation of Section 11.
date he received the lst y . e addressee, or after fiv~ days from t~e
(See also: Cadomigara v. National Labor Relations Commission, G.R. earlier Thus in the bl not,~e of the postmaster, whichever date rs
No. 158073, Nov. 23, 2007, 538 SCRA 363.) .. · · ' pro em given the 15 da · dt I
,' be reckoned from July 22 ' . . - Y peno o appea should
\
2014
2014 the date h . , - wh1~h rs after five days from July 16,
10. What are the reason for the priority of service and filing , e received the first notice.
of plead.ings and other papers? ·
13·
a) What is lis pendens? Notice of /is pendens?
The reasons are: ·
" . b) M~y a notice of /is pendens be sought as a prlncipal
a) to exQedite action or resolution on a pleading, motion, or 1 action for relief? (Or, the question may be put th·rs way: I s th ere an
other paper; and . & •
.ac t ion ror annotation of /is pendens?)
b) to do away with t e practice of some lawyers who, wanting
c) ~uppos~ the Register of Deeds denies the annotation
to appear clever, resort to less than ethical practices, such as serving of the notice of lis pendens on the ground that in hl · ·
or filing pleadinqs by mail to catch opposing counsel off-guard, thereby th tl d , rs opnuon,
e ac ion oe~ not involve title to or possession of the subject
leaving him with little or no time to prepare his responsive pleading or property, what rs the remedy against such denial?
opposition. (Uy v. Medina, A.M. No. MTJ-00-1247; Oct. 10, 2000, citing
Solar Team Entertainment, Inc., supra.) In AFP Mutual Benefit Association, Inc. v. CA, et al., G.R. No.
104769, March 3, 2000, it was held that:
11. When is service complete? (or the question is: What is
. ~) "Lis Pendens" is a Latin term which literally means "a pend-
the rule regarding completeness of service?)
ing suit or a pending litigation." A notice of tis pendens is an announce-
If by"personal service, it is complete upon actual delivery. men_t to .the whole world that a particular real property is in litigation,
. '
serving as a warning that one who acquires an interest over the said
If by ordinary mail, it is complete upon the expiration of 10 days
property does so at his own risk, or that he gambles on the result of the
after mailing, unless the court otherwise provides.

• If by registered mail, it is complete upon actual receipt· by the

addressee, or after five days from the date he received the first notice
of t_he postmaster, whichever date is ear!ier. (Ru/a· 13, Sec. 10.)
If by substituted service, it is complete at the time of the delivery
of a copy to the clerk of court. (Rule 13, Sec. 8.)
12. A copy of the judgment was sent to defendant's counsel
by registered mail. He received the first notice of the postmaster
on July 16, 2014. He received the second notice on July 28, 2014.
It was only on July 31, 2014 that he went to the post office to claim
.
the mail matter containing the judgment. He filed his notice 'of
126
litigation over the said property. It is but a signal to the intending buyer
or mortgagee to take care or beware and to investigate the prospect
or non-prospect of the litigation succeeding before he forks down his
money.
There is no such action as one for "annotation of. /is pendens. • A
notice of /is pendens is not and cannot be sought as a principal action
for relief. The notice is but an incident to an action, an extrajudicial one
to be sure. It does not affect the merits thereof. It is intended merely to
constructively advise, or warn, all people who deal with the property
that they so deal with it at their own risk, and whatever rights they may
acquire in the· property in any voluntary transaction are subject to the
results of the action, and may well be inferior and subordinate to those
Which may be finally determined and laid 'down therein. 'As a settled
127
 1
QUESTIONS AND ANSWERS IN
REMEDIAL lAW
. rule, notice of /is pendens may be annotated only where there is an
action or proceedingin court which affects title to or possession of real
property. ->: , of a real property involves the use or occupation of real property.
b) The remedy against such denial is to appeal the's~me ·en
consulta to the Commissionerof Land Registration. The resolution of
the Commissionermay then be appealedto the Court of Appeals, which
has exclusive jurisdiction to decide the same within the period and in
the manner provided in RA. 5434.
14. In what action may a party record a notice of /is pendens?
In an action affecting the title or the right of possession of real
property, the plaintiff and the defendant, when affirmative relief is
claimed in his answer, may record in the Office of the Registry of Deeds
of the provincein which the propertyis situated a notice of the pendency
of the action. (Rule 13, Sec. 14.)
Section76 of P.O. 1529 providesthat a notice of /is pendens may
be recordedin the following cases:
a) in an action to recover possessionof real estate;
b) in an action to quite title thereto;
c) in an action to remove clouds therefrom;
d) in an action for partition; and
e) in any other proceedingsof any kind in court directly affecting
the title to the land or the use or occupation thereof or the buildings
thereon.
Section 76 of P .D. 1529 also provides that a notice of /is pendens
should state: .(a) the institutionof an action or proceeding; (b) the court
where the action or proceedingis pending; (c) the date of its institution;
(d) a reference to the number of the certificate of title of the land; (e) an
adequate description of the land affected; and (e) the registered owner
of theland, · !he purpose of molesting the adverse party; (b) the notice of /is pendens
X and Y entered into a written agreement for the co-development
of a parcel of land owned by Y. Because Y refused to comply with the
agreement, X filed a complaint against him for the enforcement of the
agreementfor the co-developmentof the property. Is the recording of a
notice of /is pendens proper in this case?
128
RULE 13- FILING AND SERVICE OF PLEADINGS,
JUDGMENTS, AND OTHER PAPERS
." 9The recording of a notice of /is pendens is proper in this case
because an action to enforce. a prior aqreernent.for tl:l.~~.9.-:9.~'(~lppment
(Viewmaster Construction Corp. v. Mau/it, G.R. No. 136283, Feb. 29,
2000.)
On the other hand, the doctrine of /is pendens has no application
in the following cases:
a) Preliminary attachments;
b) Proceedingsfor the probate of wills;
c) Levies on execution;. ,
d) Proceedings for administration of estate of deceased per-
sons; and
e) Proceedings in which the only object is the recovery of a
money judgment. (Heirs of Eugenio Lopez Sr. v. Alfredo R. Enriquez, et
al., G.R. No. 146262, Jan. 21, 2005.)
15. P's complaint alleges that his money claim on the cost
of labor and materials for the townhouses he had constructed on
D's land Is a proper lien that justifies annotation of a notice of /is
pendens on the land's certificate of title. Is P correct?
~ P's complaint is a claim for money - a collection suit - that
can~e characterized as an action for the enforcement of a lien or
an encumbrance on a real property that would warrant the annotation
of a notice of /is pendens. (Atlantic Erectors, Inc. v. Herbal Cove Realty
Corp., G.R. No. 148568, March 20, 2003.)
16. What are the grounds upon which a notice of /Is pendens
which is already recorded may be cancelled?
The following are the grounds: (a) the notice of tis pendens is for
is not necessary to protect the rights of the party who caused it to be
recorded. (Rule 13, Sec. 14.)
A no_tice of /is pendens is extrajudicial in th~ sense that it may be
recorded in the office of the register of deeds without the approval of
the court in which the action is pending. But once recorded, the notice
129
 .... ~,··-

QUESTIONS AND ANSWERS IN

REMEDIAL LAW

or /Is pendens may be cancelled only upon order or tho court on any
of the grounds mentioned above. Thus, tho court cannot ordor tho
cancellation of the notico of /is pondons upon an ox pono motion (or
without notice to the party who caused the notlco to be recorded).
RULE14

SUMMONS •
1. What la summons?
It le a writ addrounod to tho defendant, dlroctlng him to answer
within tho limo flxod by tho rulou tho complnlnt filod uu..ilnut him by
tho plaintiff, with a notlco that unlouu ho uo answoru, plaintiff will tako
Judgment by dofaull and may bo omntod tho rollof appliod for. (Rulo 14,
Sec. 2.)
Summons Is a writ by which tho defendant lu notlflod of tho action
brought against him. Its purpose la two-fold: (a) to acquire jurisdiction
over tho porson of tho dofondont; and (b) to notlry tho dofondant that an
action has boon commoncodso that ho may bo glvon an opportunity to
bo hoard on tho claim against him. (Nation Potro/oum Gas, Inc., ot al.
v. Rizal Commorclal Banking Corporation, etc., G.R. No. 183370, Aug.
17, 2015.)

2. Is summons required for counterclalms?

f ... ,
fa. umrnons Is not required for counterclaims, whether com-
pulsory-or permissive. (Francisco Motors v. CA, G.R. No. 100812, June
25, 1999.)
Since summons is not required for permissive counterclaim, the
plaintiff as defending party may be declared In default If he falls to
answer the permissive counterclaim within 1 O days from service upon
him of such permissive counterclaim.
Also, summons is not required for complaint In intervention.

3. When may an alias summons be Issued?

An alias summons may be Issued by the Clerk of Court upon
demand by the plaintiff -
a) if the summons has been lost; or
b) if the summons is returned without being served on any or all
of the defendants. (Rule 14, Sec. 5.)

. 131
130
 ESTI 1 S AND ANSWERS IN
REMEOlAL L~\\
4.. Ho m3Y the trial court acquire jurisdiction over the
.person of the defendant?
The trial court may acquire jurisdiction over the person of the
defendant · one of the follo\\ing ways:
a) by a valid service of summons upon him; or
b by defendant's voluntary appearance in the action.
Thus, although service of summons upon the defendant is
defective. the court still acquires jurisdiction over his person if he volun-
tanly appears in the action - as when he files his answer or a motion
for extension of time to file answer.
Example: In an action for recovery of possession of real property,
summons was sent to the defendant by registered mail. The defendant
received the summons, together with a copy of the complaint, on March
1, 2014. On March 14, 2014, he filed his answe~d the court acquire
jurisdiction over the person of the defendant?~ - not by service
of summons because service of summons by registered mail is not
authorized by the rules, but by his voluntary appearance in the action.
5. What are the modes of service of summons?
The following:
a) Service in person to the defendant. By handing a copy of the
summons to the defendant in person or, if he refuses to receive and
sign for it, by tendering it to him;
b) Substituted service. By leaving a copy of the summons
at the defendant's residence with some person of suitable age and
discretion then residing therein, or by leaving a copy of the summons
at defendant's office or regular place of business with some competent
person in charge thereof. But substituted service may be resorted to
only if summons cannot be served in person to the defendant within a
reasonable time; and
c) Service by publication. (Rule 14, Secs. 6, 7, and 14.)
6. How may a substituted service of summons be effected?
Substituted service of summons may be effected -
a) by leaving a copy of the summons a_t the _defendant's _r~si-
dence with some person of suitable age and discretion then residinq
therein; or
132
RULE 14 - SUMMONS
· b) by leaving a copy of the summons at defendant's office or
place of business with some competent person in charge thereof .
But substituted service is proper only if for justifiable ~u~es,
summons cannot be served on the defendant in person within a
reasonable time. (Rule 14, Sec. 7.)
The impossibility of service to the defendant in person must be
indicated in the sheriffs return or proof of service, otherwise the sub-
. stituted service is void. (Hamilton v. Rey, et al., G.R. No. 139283, Nov.
15, 2000.)
7. In what instances may service of summons by publica-
tion be made? .
In the followinqinstances, service of summons by publication may
. be made .~l:1~ only with leave .<?f court: " .
a) Where the identity of the defendant is unknown;
b) Where the whereabouts of the defendant ar~ unknow~; .:
c) Where the defendant does not reside and is not found in the
Philippines but the suit can properly be maintained against him in the
Philippines, it being in rem or quasi in rem; and
d) . Where the defendant is a resident of the Philippines but is
temporar.ily out of the country.
8. It was held in Perkin Elmer Singapore Pte. Ltd. v. Dakila
Trading Corp., G.R. No. 172242, Aug. 14, 2007, that extraterritorial
service of summons upon a non-resident defendant who is not in
the Philippines applies only when the action is in rem or quasi in
rem, but not if the action is in personam. What about if the defen-
dant is a resident defendant but his whereabouts are unknown,
may summons be served upon him by publication where the action
is in personam, as when the complaint is one for collection of a
sum of money? · ·
. Yes .. Section .-14, Rule 14. of the .1997 Rules of Civil Procedure
provides: "In any action where the defendant is designated as an
unknown owner, or the like, or whenever his whereabouts areunknown
and cannot be ascertained by. diligent inquiry, service may, by ieave of
court, be effected upon him by publication in a newspaper, of general
circulation and in such places and for such times as the court· may
133
 -••t
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
order." The in rem/in personam distinction was significant under the
old rule because it was silent as to the kind of action to which the rule
was applicable. The present rule, however, states that it applies in any
action, and the phrase "in any action" means just that - any action,
whether in personam, in rem, or quasi in rem. (Santos Jr. v. PNOC
Exploration Corp., G.R. No. 170943, Sept. 23, 2008.)
9. PJ filed a complaint with the RTC against Spouses
HB and RB for specific performance to compel them to facilitate
the transfer of ownership of land subject of a controverted sale.
Per return of the summons, substituted service was resorted to
because x x x efforts to serve the said Summons personally
11
upon defendants Sps. HB and RB were made but the same were
Ineffectual and unavailing for the reason that defendant HB is
somewhere In the United States and defendant RB Is In Blcol thus
substituted service was made In accordance with Section 7, Rule
14 of the Revised Rules of Court." Days later, PJ flied a motion for
leave to effect summons by publication which tho court granted.
Thus, the summons was published In accordance with tho rules.
Is the substituted service of summons valid?
What about the service of summons by publication made In
this case, is It valid?
The substituted service of summons Is not valid. The return of
summons shows that no effort was actually exerted and no positive
step taken by the process server to locate and serve the summons
personally on the defendants. The return merely states the alleged
whereabouts of the defendants without indicating that such information
was verified from a person who had knowledge thereof.
It should be emphasized that only where the service of summons
cannot be made in person on the defendant that substituted service
may be resorted to. The proof of service of summons or process ser-
ver's return must: (a) indicate the impossibility of service of summons
in person on the defendant within a reasonable time; (b) specify the
efforts exerted to locate the defendant; (c) state that the summons was
served upon a person of sufficient age and discretion who is residing in
the address, or who is in charge of the office or regular place of busi-
ness of the defendant. The failure to comply faithfully, strictly and fully
with all the foregoing requirements renders the substituted service of
summons ineffective.
134
UlJiil''""
RULE 14 - SUMMONS
The service of summons by publication is also not valid. The rule
is that extraterritorial service of summons or summons by publication
applies only when the action is in rem or quasi in rem. An action in rem
is an action against the thing itself, instead of against the defendant's
person. In action quasi in rem, an individual is named as defendant,
but the purpose of the action is to subject that individual's interest in a
piece of property to the obligation or loan burdening it. In the problem
presented, the action that is filed with the trial court is .an action for
specific performance directed against the defendants. While the action
incidentally involves a piece of land, the ownership or possession thereof
was not put in issue. Moreover, an action for specific performance is
an action in personam where summons by publication is not allowed.
(Patrick Jose. et al. v. Helen Boyon, et et., G.R. No. 147369, Oct. 23,
m~ \
Where the action Is In personam and the defendant. is In the
Philippines, summons may be served In person to the defendant or by
substituted service. (Oamlnal v. Castillo, et el., G.R. No. 152776, Oct.
B. 2003.)
10. X and Y, who ore husband and wife, are both permanent
residents of the United States. X, the husband, Is a member of the
Phlllpplne Bar, and practices his profession In the Phlllpplnes,
commuting for this purpose between United States and the Philip-
pines. Z flied an action for partition of real property against X and
Y. The case was flied with the RTC of Manlla where the property Is
situated. X was personally served with summons at his office In
Manila. He, however, refused to accept the summons for his wife.
X filed his answer, but Y did not. Z moved to declare Y In default. If
you were the judge, would you grant the motion?
No, I would not grant the motion because there was no valid
service of summons upon Y. Since Y Is a non-resident defendant who
is not found in the Philippines, summons upon her should have been
effected outside of the Philippines, either:
a) by personal service;
b) 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
135
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
c) in any other manner the court may deem sufficient. (Vaf-
monte v. CA, G.R. No. 108538, Jan. 22, 1996; Banco do Brasil v. ·CA,
G.R. Nos. 121576-78, June 16, 2000 [333 SCRA 545].)
The foregoing are the modes of extraterritorial service of sum-
mons, and they may be effected only with prior leave of court. (Rufe 14,
Sec. 15.)
','.,
11. In what instances may a non-resident defendant who is
not found in the Philippines be sued in the Philippines, and, there-·
fore, the summons may be effected upon him by extraterritorial·
1
service? · ·
The following are the instances:
a) when the action affects the personal status of the plain~iff;
b) when the action relatesto, or the subject of which is, property
within the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent;
c) when the relief demanded in such action consists, wholly or
in part, in excluding the defendant from any interest in property located
in the Philippines;and ·
d) when the defendant's property has been attached within the
Philippines. (Rufe 14, Sec. 15; Banco do Brasil v. CA, 333 · SCRA 545
[2000].)
12. Suppose the action is one of those mentioned above (in
Q and A No. 11), but summons upon the non-resident defendant
who is not in the Philippines was served by registered mail, is the .
service of summons valid?
: . Yes, if the court deems such service sufficient.
In Cariaga v. Malaya, G.R. No. L-48375, Aug. 13, 1986 (143
SCRA 441), summonses were sent by registered mail to Jose C.
Cariaga, Jr. and Mariela Cariaga-Celis who were residing .abroad..
The trial court held the service of summons by registered mail valid. ·
The defendants, however, assailed the order of the trial court, alleging .
that respondent Judge Malaya acted with grave abuse of discretion in
allowing extraterritorial service of summons by registered mail. Against
that backdrop, the Supreme Court stated the issue in this wise: "The.
main issue on appeal is whether the service of summons by registered '
136,
RULE 14 - SUMMONS
mail upon defendants in the case at bar is one which is contemplated
within the principles laid down in the provisionsof Sections 17 (now Sec.
15), 7 and 22, Rule 14 of the New Rules of Court x x x." Stressing that
there is a third mode of extraterritorialservice under the rules (which is
in any other manner which the court may deem sufficient), the Supreme
Court, held: "The third mode of extraterritorial service of summons
was substantially complied with in this case." Amplifying its ruling, the
Supreme Court said: "There is no questionthat the requirement of due
process has been met as shown by the fact that defendants actually
received the summonses and copies of the complaint x x x." (The rule
laid down in Cariaga is still a good law because the rule regarding
extraterritorial service of summons in the old Rules of Court is - in
words and phrases-the sameas in the 1997 Rules of Civil Procedure.)
13. How may summons be served on a resident defendant
who is temporarily out of the country?
. He may be served with summonsas follows:
. a) by substituted service;
b) by personalserviceoutsideof the country,with leave of court;
c) by publication, with leave of court; or
d) any other manner the court may deem sufficient. (Asiavest
Ltd. v. CA, et al., G.R. No. 128803, Sept. 25, 1998.)
14. If the defendant is a resident defendant or a non-resident
defendant who is in the Philippines, may summons be served upon
him by registered mail. '
No, because service by registeredmail upon a resident defendant
or upon a non-resident defendantwho is in the Philippines is not one of
the authorized modes of service of summons. · ·
Summons by registeredmail is valid only if served extraterritorially
upon a non-resident defendant who is not found in· the Philippines,
or upon a resident defendant who is temporarily out of the country,
provided the court deems such service of summons sufficient.
15. X wants to sue Y, a non-resident defendant who is not in
the Philippines, for. the payment of a specified amount of damages.
May X sue Yinthe Philippines?
137
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
No.
But. if Y has a property that can be attached within the Philippines,
X may sue him in the Philippines. It is. therefore, important that at the
commencement of the action, plaintiff X must already apply for the
issuance of a writ of preliminary attachment. Under Rule 57. Section 1,
a writ of preliminary attachment may be issued in an action against a
party who does not reside and is not found in the Philippines.
16. Who may serve the summons?
The summons may be served:
a) by the sheriff, his deputy, other proper court officer, or for
justifiable reasons by any suitable person authorized by the court
issuing the summons; or
b) by the officer having the management of the jail or institu-
tion, if the defendant is a prisoner confined therein, in which case such
officer is deemed deputized as a special sheriff for said purpose. (Rule
14, Secs. 3 and 9.)
17. Upon whom shall service of summons be made?
Generally, service of summons shall be made on the defendant.
But if the defendant is -
a) an entity without juridical personality - it may be effected
upon all the defendants by serving the summons upon any one of
them, or upon the person in charge of the office or place of business
maintained in such name;
b) a minor or incompetent- service shall be made upon him
personally and on his legal guardian if he has one, or if none, upon his
guardian ad /item; or
c) the Republic of the Philippines- service may be effected on
the Solicitor General; a province, city or municipality, or similar public
corporations - service may be effected on its executive head or on
such other officers as the law or the court may direct. (Rule 14, Secs. 8,
10, and 13.)
The estate of a deceased person may only be summoned
through the executor or administrator of his estate for it is the executor
or administrator who may bring or defend actions for the recovery or
138
RULE 14 - SUMMONS
protection of the propertyor rights of the deceased. (Lavina, et al. v. CA,
et el., G.R. Nos. 78295 and 79917, April 10, 1989.)
18. State the modes of service of summons upon foreign
Juridical entity (such as a foreign corporation).
Section 12, Rule 14 of the 1997 Rules of Civil Procedure, as
amended by AM. No. 11-3-6 (New Rule on Service of Summons on
Foreign Juridical Entities), now provides:
"SEC. 12. Service upon foreign private juridical entity. -
When the defendantis a foreign privatejuridical entity which has
transacted business in the Philippines, service may be made
on its resident agent designatedin accordance with law for that
purpose, or, if there be no such agent, on the government official
designated by law to that effect,or on any of its officers or agents
within the Philippines.
If the foreign privatejuridical entity is not registered in the
Philippines or has no resident agent, service may, with leave
of court, be effected out of the Philippines through any of the
following means:
a) By personal service coursed through the appropriate
court in the foreign countrywith the assistanceof the Department
of ForeignAffairs;
b) By publication once in a newspaper of general cir-
culation in the countrywherethe defendant may be found and by
serving a copy of the summonsand the court order by-registered
mail at the last known addressof the defendant;
c) By facsimile or any recognized electronic means that
could generate proof of service;or
d) By such other meansas the court may in its discretion
direct."
Thus, where the defendantis a foreignjuridical entity but has not
registered to do businessin the Philippines,summons may be served
upon it through the use of electronic means, providedthere is leave of
court. It is submittedthat the use of email is sufficientas long as it can
be proven in court that the defendanthas receivedthe summons.
139
 QUESTIONS AND ANSWERS
REMEDIAL LAW
IN
19. Suppose the foreign private juridical entity has desig-
nated a resident agent to receive summons, may the summons
be served on, say, the government official designated by law to
receive summons?
No. If the foreign private juridical entity has designated a resident
agent to receive summons, such designation is exclusive, and service
of summons is without force and gives the court no jurisdiction unless
such service is made upon him. (Northwest Orient Lines, Inc. v. CA,
G.R. No. 112573, Feb. 9, 1995.)
20. The rule is that if the foreign private juridical entity has
not designated a resident agent, service of summons may be made
on the government official designated by law to that effect. Who
are these government officials?
They are:
a) the Insurance Commissioner, in the case of a foreign insur-
ance company;
b) the Superintendent of Banks, in the case of a foreign bank-
ing corporation; and
c) the Securities and Exchange Commission, in the case of
other foreign corporations duly licensed to do business in the Philip-
pines.
Whenever service of summons is so made, the government office
or official served shall transmit by mail a copy of the summons or other
legal process to the foreign corporation at its home or principal office.
The sending of such copy is a necessary part of the service .. (Northwest
Orient Lines, Inc. v. CA, G.R. No. 112573, Feb. 9, 1995.)
21. If the defendant is a domestic private ,juridical entity
(such as a corporation or a partnership), on whom may service of
summons be made?
Service of summons may be made on its president, managing
partner, general manager, corporate secretary, treasurer, or in-house
counsel. (Rule 14, Sec. 11.)
22. In service of summons upon a domestic private juridical
entity, what is the doctrine of substantial compliance? · Commercial Banking Corporation, etc.; G.R. No. 183370, Aug: 17, 2015.) ·
140
RULE 14 - SUMMONS
As held in G & G Tr~din~ Corp. v. CA, G.R. No. L-78299, Feb. 29,
l
1988 (158 SCRA 466), cited in Millenium Industrial Commercial Corp ..
v. Tan, G.R: No. 13~724, Feb. 28, 2000 (326 SCRA 565), the doctrine
of substantial compliance means that although the service of summons
was made on a person not enumerated in Section 11 of Rule 14 if i
it appears that the summons and the complaint were in fact received !i
by the corporation, there is substantial compliance with the rule 'as its
purpose has been attained.
Thus, it has been held that service of summons upon the clerk (an
employee of the corporation) is valid where it appears that the summons
was in fact received by the corporation. (JMM Promotions v. Drilon, July
31, 1989; Golden Country v. Sanvar, G.R. No. 580267, Sept. 28, 1992.).
· The requisites for the application of the doctrine of substantial
compliance are:
a) there must be actual receipt of the summons by the person
served, i.e., transferring possession of the copy of the summons from
the sheriff to the person served;
b) the person served must sign a receipt or the sheriff's return;
or
c) there must be actual receipt of the summons by the corpo-
ration through the person on whom the summons was actually served.
(Porac Trucking, Inc. v. CA, G.R. No. 81093, March 6, 1990 [183 SCRA
45]; Millenium Industrial Commercial Corp. v. Tan, G.R. No. 131724,
Feb. 28, 2000 [326 SCRA 565].)
I But, in Mason v. CA, eta!., G.R. No. 144662, Oct. 13, 2003, citing
B. Villarosa & Partner Co., Ltd. v. Judge Benito, 312 SCRA 65, the
Supreme Court overturned this doctrine of substantial compliance.
Therefore, summons upon a domestic private juridical entity (such
as a corporation or a partnership) may be served only upon its pre-
sident, managing partner, general manager, corporate secretary,
treasurer, or in-house counsel. This enumeration, said the Supreme
Court, is restricted, limited and exclusive, following the rule in statutory ·
construction that expressio unios est exclusion alterius.
Service of summons upon persons other than those officers
specifically mentioned in Section 11, Rule 14 (namely: the president,
managing partner, general manager, corporate secretary, treasurer'. or
in-house counsel) is void. (Nation Petroleum Gas, Inc. et al. v. Rizal
141
11
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW

But in Nation Petroleum Gas, Inc., et al. v. Rizal Commercial

Banking Corporation, et al., supra, it was held that there was a valid
and effective service of summons upon Nation Petroleum Gas, Inc.
through its liaison officer who acted as agent of the corporate secretary. RULE15
Here, the liaison officer received the summons from the sheriff after
receiving telephone instructions to do so from the corporate secretary. MOTIONS
In so receiving the summons, the liaison officer did so in representation
of the corporate secretary who is one of the officers competent under
the Rules of Court to receive summons on behalf of the corporation. 1. What Is a motion?
Thus, while it may be true that there was no direct, physical handing of A motion is an application for relief other than by a pleading. (Rule
the summons to the corporate secretary, she could at least be charged 15, Sec. 1.)
with havi_ng constructively received the summons.
2. What are the requisites of a valid motion?
23. Alleging that the substituted service of summons upon
him is not valid, defendant filed a motion to dismiss the complaint The requisites of a valid motion are the following:
on the ground that the court has not acquired jurisdiction over his
a) It must be in writing, except if made in open court or in the
person. May the defendant include in his motion to dismiss other course of a hearing or trial;
grounds?
b) It must state the relief sought to be obtained and the grounds
Yes. Section 20, Rule 14 of the 1997 Rules of Civil Procedure
upon which it is based, and if required by the rules or necessary to prove
provides: "The defendant's voluntary appearance in the action shall
facts alleged therein, shall be accompanied by supporting affidavits and
be equivalent to service of summons: The inclusion in a motion to
other papers;
dismiss of other grounds aside from lack of jurisdiction over the person
of the defendant shall not be deemed a voluntary appearance." Thus; c) It shall be set for hearing by the applicant, except for a
a defendant who files a motion to dismiss, assailing the jurisdiction of motion which the court may act upon without prejudicing the rights of
the court over his person is not deemed to have appeared voluntarily the adverse party;
before the court even if he raises other grounds.
d) It must contain a notice of hearing addressed to all the
parties concerned, specifying the time and date of the hearing which
must not belaterthan todays after the filing thereof;
e) It must be served, together with the notice of hearing thereof,
on the adverse parties at least three days before the date of hearing; or
j f) · There must be proof of service of the motion. (Rule 15, Secs.
,I 2, 3, 4, 5 and 6.)

3. The trial court rendered judgment against the defendant.

The defe~dant received a copy of the judgment on July 16, 2014. On
July 24, 2014, he filed a motlon·for reconsideration of the judg.ment.
Appended to his motion Is the following:

142 143
 OU STION AND ANSWERS IN
REM DIAL LAW
The Clerk of Court
Regional Trial Court
Branch 6
Baguio City
Greeting
Plea e submit the foregoing motion Immediately
upon receipt hereof for the consideration of the Honor·
abl Court.
(Sgd.) Atty. ABO
Counsel for Defendant
Did defendant's motion toll the reglementary period for
appeal?
o. Defendant's motion for reconsideration did not toll the reg-
lementary period for appeal because it did not contain a notice of
hearing. The request to the clerk of court to "please submit the fore-
going motion immediately upon receipt hereof for the consideration of
the Honorable Court" is not sufficient because such request is not the
notice of hearing contemplated by the rules.
The notice of hearing must be addressed to the parties concerned
and must state the time and date of the hearing. In Cledera v. Sarmiento,
G.R. Nos. L-32450-51, June 10, 1971 (39 SCRA 553), it was held that
the mere filing of the motion for reconsideration without the requisite
notice of hearing does not toll the running of the period for appeal.
In Sembrano v. Ramirez, et el., G.R. No. L-45447, Sept. 28, 1988,
the Supreme Court held: "The Court has invariably held that a motion
without notice of hearing is a mere scrap of paper. It does not toll the
running of the period of appeal. This requirement of notice of hearing
equally applies to a motion for reconsideration. Without such notice, the
motion is proforma. And a proforma motion for reconsideration does
not suspend the running of the period to appeal."
Also, Philippine Commercial and Industrial Bank v. CA, et al.,
G.R. No. 120739, July 20, 2000, the Supreme Court similarly ruled
as follows: "The law on the matter is clear. The rules on procedure
explicitJy require that notice of a motion shall be served by the applicant
to all parties concerned at least three days before the hearing thereof
144
RULE 15 - MOTIONS
together with a copy ~f the motion, and of any affidavits and other
papers accompanying tt, and that the notice shall be directed to the
pa~ies co_ncerned, stati~g the time and place for hearing the motion.
Thts r~qu,re~ent of notice of hearing equally applies to a motion for
recons1derat1on. We have invariably held that a motion without notice of
hearing is a mere scrap of paper. In other words, a pro forma motion for
reconsideration does not suspend the running of the period to appeal.
In the instant case, the failure of private respondents to comply with the
procedural requirements was fatal to their right to appeal."
A motion may be held pro forma if: (1) it was a second motion for
reconsideration; or (2) it did not comply with the rule that the motion
must spedfy the findings and conclusions alleged to be contrary to law
or not supported by the evidence; or (3) it failed to substantiate the
alleged errors; or (4) it merely alleged that the decision in question was
contrary to law; or (5) the adverse party was not given notice thereof.
(PNB v. Paneda, et al., G.R. No. 149236, Feb. 14, 2007.)
Although a motion without a notice of hearing is considered pro
forma and does not affect the reglementary period for the appeal or the
filing of the requisite pleading, there are instances when the rule on
notice of hearing should be liberally construed. The following have been
cited by the Supreme Court as persuasive reasons which allow a liberal
construction of the requirement of notice of hearing in motions:
1) where a rigid application will result in manifest failure or
miscarriage of justice, especially if a party successfully shows that the
alleged defect in the questioned judgment is not apparent on its face
from the recitals contained therein;
2) where the interest of substantial justice will be served;
3) where the resolution of the motion is addressed solely to the
sound discretion of the court; and
4) where the injustice to the advers~ party is not co_mme~surate
with the degree of his thoughtlessness !n not complytn~ with . the
procedure prescribed. (National Commercial Bank of Saud, Arabia v.
CA, et al., G.R. No. 124267, Aug. 18, 2004.)
In National commercial Bank of Saudi Ara~ia, it was held that the
fact that the private respondent Philippine Bankmg Corp. _faces severe
prejudice in the amount of at least P1 Million US dollars in interest alone
145
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW

if the date of reckoning of payment thereof turns out to be erroneous

r . 7.
RULE 15 - MOTIONS

What is the omnibusmotion rule?

and that the parties to the case belong to an industry over which the It is the rule that requir .
government has a vital interest should justify a liberal construction of t es a motionthat attacks a pleading order
jud~men ' or proceedingto include all objectionsand defens~s the~
the requirement of notice of hearing as such negligence in complying available, and all those not included shall be_ d eemed waive
· d . (Rue
I 15,
with the said requirement is not commensurateto the prejudice likely to Sec.. 8 )
be suffered by private respondent.
But, refer to ~ule 9, Section 1 for objections. and defenses that
4. Give an example of notice of hearing. are not deemed waived even if not set up in a motion to dismiss or in
an answer.
Below is a good example of notice of hearing:

"Notice of Hearing
Atty. CGO
Counsel for the Plaintiff
Catellamonte Building
Baguio City
Greetings:
Please take notice that on July 18, 2014, al 1:30
o'clock in the afternoon, or as soon thereafter as counsel
and the matter may be heard, the undersigned will submit I
the foregoing Motion for Reconsiderationfor the approval of I
l
the Honorable Court.
lI
(Sgd.) Atty. ABO
Counsel for the Defendant"
I
5. The rule requires a motion to be In writing, what are the
exceptions? I
I
The exceptions are: (a) motions for continuance made in the I
presence of the adverse party; (b) motions made in open court or in the
course of a hearing or trial. (Rule 15, Sec. 2.)

6. What is an omnibus motion?

It is a motion that attacks a pleading, order, judgment, or pro-
ceeding. (Rule 15, Sec. 8.) ·
A motion to dismiss attacks a pleading. A motion for reconsid-
eration (or a motion for new trial) attacks an order, judgment, or pro-
ceeding.

146 147
 · ·-,
RULE 16
MOTION TO DISMISS
1. When may a motion to dismiss be filed? - and upon,
what grounds?
. Withi~ th: time for but before filing the answer to the complaint, a
motion to dismiss may be made on any of the following grounds:
a) the court has no jurisdiction over the person of the defending
party;
b) the court has no jurisdiction over the subject matter of the
claim;
c) venue is improperly laid;
d) the plaintiff has no legal capacity to sue;
e) there is another action pending between the same parties for
the same cause (/is pendens, litis pendentia, or auter action pendant);
f) the cause of action is barred by a prior judgment (res judi-
cata) or by the statute of limitations (prescription); .
g) the pleading asserting the claim states no cause of action;
h) the claim or demand set forth in the plaintiffs pleading has
been paid, waived, abandoned, or otherwise extinguished;
i) the claim on which the action is founded is unenforceable
under the provisions of the statute of frauds; and · "Subject to the right of appeal, an order granting a motion to dismiss
j) a condition precedent for filing the claim has not been com-
plied with. (Rule 16, Sec. 1.)
Any of the foregoing grounds for dismissal may be pleaded
as affirmative defenses in the answer. If no motion to dismiss has
been filed, the defendant may move for a preliminary hearing on his
affirmative defenses as if a motion to dismiss has been filed. And, if the
court orders dismissal and the defendant, in his answer, has asserted
a counterclaim against the plaintiff, the dismissal is limited to the
148
RULE 16-M
OTION TO DISMISS
complaint, and the defendant m
same or separate action 1R , ay prosecute his counterclaim in the
· ,, u,e 16, Sec. 6.)
If the defendant first fil .
denied by the court he I ~s a motion to dismiss, but the same is
. t d' . ' may still plead the grounds he has invoked in his
mo t ion o rsrruss as affirmative def . h
Leisure and Resorts C . enses in is answer. (Mondragon
154187 April 14 200:)rpB v. United Coconut Planters Bank, G.R. No.
. , , · ut, he cannot ask anymore for preliminary
hearing
. . on those
. affirmative defenses as h e h a d a I rea d y filI e d a mo tiion
to dismiss which was denied by the court.
Note that under AM. No. 03-1-09-SC which took effect on August
16, 2004, the summons to be issued shall now contain a reminder to
~he defendant to observe restraint in filing a motion to dismiss and
instead allege the grounds thereof as defenses in his answer.
· 2. If a case is dismissedon any of the grounds provided for
in Section 1 of Rule 16, is the dismissala dismissal with prejudice
or without prejudice?
· The dismissal is with prejudice if it is based on any of the following
grounds: (1) that the cause of action is barred by a prior judgment or
by the statute of limitations; (2) that the claim or demand set forth in
the plaintiffs pleading has been paid, waived, abandoned or otherwise
extinguished; and (3) that the claim on which the action is founded
is unenforceable under the provisions of the statute of frauds. But a
dismissal based on the rest of the grounds mentioned in Section 1 of
Rule 16, is without prejudice. (Development Bank of the Philippines v.
Carpio, et al., G.R. No. 195450, Feb. 1, 2017, citing Malayan Insurance
Co., Inc. v. Salas, 179 Phil. 201, 206 [19791)
The foregoing is based on Section 5, Rule 16, which reads:
based on paragraphs (f), (h) and (1) of Section 1 hereof shall bar the
refiling of the same action or claim." Thus, a case that is dismissed with
prejudice cannot be refiled, the remedy being to appeal from the order
of dismissal. But if a case is dismissed without prejudice, the remedy is
to refile it. It must be noted that an order of dismissal without prejudice
is not appealable.
3. . If the defendant files a motion to ~ismiss, is he required
to present evidence at the hearing of his motion? .
149
Ir..
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Yes. If questions of fact are involved, he should present his
evidence thereon. Should the case go to trial, the evidence presented
during the hearing shall automatically be part of the evidence of the
party presenting the same.
On questions of law, he will simply submit his argument thereon.
(Rule 16, Sec. 2.)
4. What are the requisites of /is pendens (also called I/tis
pendentia or auter action pendant) as ground for dismissal of an
action?
The following:
a} identity of parties, or at least such as representingthe same
interests in both actions;
b} identity of rights asserted and reliefs prayed for, the reliefs
being founded on the same facts; and
c} identity in both cases is such that the judgment that may
be rendered in the pending case would, regardless of which party is
successful, amount to res judicata in the other. (Victronics Computers,
Inc. v. RTC, Branch 63, Makati, G.R. No. 104019, Jan. 25, 1993 [217
SCRA 517].)
As to the first requisite, the rule requires only substantial, not
absolute, identity of parties. There is substantialidentity of parties when
there is community of interest between a party in the first case and a
party in the second case, even if the latter was not impleaded in the
first case. Also, the fact that the positions of the parties are reversed,
i.e.• the plaintiffs in the first case are the defendants in the second
case, or vice versa, does not negate the identity of parties for purposes
of determining whether the case is dismissible on the ground of litis
pendentia. (Agilent Technologies Singapore [PTEJ Ltd. v. Integrated
Silicon Technology Philippines Corp., et al., G.R. No. 154618, April 14,
2004.)
Litis pendentia may also be interposed as a ground for the
dismissal of the complaint even if the claim is set forth by way of
counterclaim, since a counterclaim partakes of the nature of a complaint
by the defendant against the plaintiff. To interpose a cause of action in
a counterclaim and again set it forth in a complaint against the same
party would violate the rule against splitting a single cause of action.
150
I
A..
RULE 16 - MOTION TO DISMISS
(lntramuros Admlnlstralio
5, 2003.) n v. Contacto, et et., G.R. No. 152576, May
Also, there is identit O•f .
are the same or th . Y ~art,es when the parties in both actions
• ere is pnv1ty betw th h
sors-in-interestby title s een em, or l ey are succes-
llllgallng for the sam to the commencementof the action
1:bsequent
apacity (Chu v. C e mg and underthe same title and in the same
c · · unanan, G.R. No. 156185, Sept. 12, 2011.)
5. What tests may b d .
I/tis pendent/a? e use to determine whether there is
Th~ tests are: (a) same evidencetest, which means whether the
same evtden~ would supportand sustainboth the first and the second
causes ~f action; (b} whetherthe defensesin one case may be used to
substantiate the complaintin the other, (c) whetherthe cause of action
in the second case existedat the time of the filing of the first complaint
(Uma/e v, Canoga Park Development Corp., G.R. No. 167246, July 20,
2011.)
. · 6. STMC issued several checks to LSMI in payment of its
obligations in the amount of P9 Million. The checks were signed
by STMC's officers, J and B. These checks were, however, dishon-
ored when presented for payment for the reason "Drawn Against
Insufficient Fund." LMSI filed with the MTC criminal cases against
J and 8 for violation of B.P. Big. 22. After the filing of these criminal
cases, LSMI filed with the RTC a civil action for collection of a sum
of money against STMC. If you were the counsel for STMC in the
civil action what procedural step would you take?
If I were STMC's counsel,I wouldfile a motionto dismiss the civil
action on the groundof litis pendentia. The rule is that the civil case filed
subsequent to the criminalcaseswas deemedinstitutedin the criminal
cases pursual to Section 1(b}, Rule 111 of the 2000 Revised Rules of
Criminal Procedure which reads: "The criminal action for violation of
B.P. Big. 22 shall be deemedto includethe correspondingcivil action.
No reservation to file such civil action separatelyshall be allowed.' It
must be noted that the partiesin the civil case againstSTMC represent
the same interest as the parties in the criminalcases. There is identity
of relief sought because the criminal cas~s and the ci~il case seek
to obtain the same relief. (Silangan Textile Manufactunng. <?°fP·, et
al. v. Demetria, et al., G.R. No. 166719, March 12, 2007, Citing Hyatt
151
I
I
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Industrial Manufacturing Corp. v. Asia Dymanic Electrix Corp., G.R. No.
163597. July 29, 2005.)
7. Two identical civil actions are pending between the same
parties, and one case is filed earlier than the other. Which of the
two actions should be dismissed on the ground of I/tis pendent/a?
Applying the "priority-in-time rule," it is the second case that should
be dismissed. But, this "priority-in-time rule" must yield to the criterion
of "more appropriate action." Thus, it is the first case that should be
dismissed if the second case is more appropriate. After all, the rule on
litis pendentie does not require that the later case should yield to the
earlier case. What is required merely is that there be another pending
action, not a prior pending action. (Ramos v. Peralta, G.R. No. 45107,
Nov. 11, 1991 [203 SCRA 412).)
There is a third test, and it is called "interest of justice rule." In
applying this test, what is inquired into is which court would be in a better
position to serve the interest of justice, taking into account the follow-
ing: (a} the nature of the controversy; (b) the comparative accessibility
of the court to the parties; and (c) other similar factors. (Roa-Magsaysay
v. Magsaysay, G.R. No. L49847, July 17, 1980 [98 SCRA-592].)
United Coconut Planters Bank v. Beluso, G.R. No. 159912, Aug.
17. 2007, enumerates three relevant considerations in determining
which action should be dismissed on ground of litis pendentia, as fol-
lows: (a) the date of filing, with preference generally given to the first
action filed to be retained; (b) whether the action sought to be dismissed
was filed merely to preempt the later action or to anticipate its filing
and lay the basis for its dismissal; and (c) whether the action is the
appropriate vehicle for litigating the issues between the parties.
8. If a litigant sues the same party against whom another
action or actions for the alleged violations of the same right and
the enforcement of the same relief are still pending, which of the
two actions should be dismissed?
Where the litigant engaged in forum shopping, the other party may
ask for the summary dismissal of the two cases. The well-entrenched
rule is that a party cannot, by varying the form of action or adopting
a different method of presenting his case, escape the operation of
the principle that one and the same cause of action shall not be twice
152
RULE 16-
litigated. (Philippine Commerci 11
MOTION TO DISMISS
.
'l
G.R. No. 114951, July 18, 200;) nternat,onal Bank, et al. v. CA, et al.,
9. X was occupying the ground floor of Y's bu1ldmg . • as
a lessee thereof. Then, there arose a problem as to whether the
period of the lease had already expired. To resolve the problem,
Lessee X filed an action against Lessor y for declaratory relief
to seek the extension of the lease for another two years or the
fixing of a longer period. While this action for declaratory relief
was pending before the RTC, Y filed an action for unlawful detainer
against X with the MTC.In his complaint,y alleged that the period
of the lease had already expired.X filed his answer, alleging that
the period of lease had not yet expired.Then,y filed with the RTCa
motion to dismiss the actionfor declaratoryrelief on the ground of
/itis pendentia. X opposedthe motion to dismiss, contending that
in /itis pendentia the case to be dismissed should be the second
case. Rule on the motion to dismiss.
Motion to dismiss, granted. The fact that the unlawful detainer
case was of a later date is no bar to the dismissal of the action for dec-
laratory relief. Here, the unlawful detainer case is the more appropriate
action. (Teodoro, Jr. v. Mirasol, G.R. No. L-8934, May 18, 1956 [99 Phil.
150].)
10. What are the requisitesof res judicata?
The following:
a) the former judgment must be final;
.. , b) it must have been rend~red by a court having jurisdiction
over the subject matter and the parties;
c) it must be a judgment or order on the merits; and
d) there must be between the first and . the ~econd actions
· identity of parties, identity of subject matter, and identity of causes of
action.
. .
In order that a judgment rendered in a case may operate as a
.
:es
t case it is essential that the cause of action
1ud1cata m a subsequen ' this connection distinction
I th tw s should be the same. 1 n .
n e o case w f tion" and wrelief ." cause of action
should be made b~tween c~ttusde iy :hce defendant by which he violated
Is the wrong or dehct cornrn! e
153
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
the rights of the plaintiff, whereas relief is the remedy sought for such
violation. A cause of action may give rise to different remedies, and
though the remedy prayed for in one case is not the same as that
sought in a subsequent case, if both remedies arise from the same
cause of action, there is res judicata. Thus, if, in the former case, the
plaintiff sought specific performance of a contract and, in the second
rescission thereof, but the cause of action in the two cases is the same,
that is, non-performance on the part of the defendant, the judgment
rendered in the first case in favor of the defendants is res adjudicata
in the second. Again, if in the first case, the relief sought is accounting
of certain funds, and in the second case, partition of the funds, but the
cause of action in the two cases is the same, that is, the plaintiff's right
to the fund as denied by the defendant, the judgment rendered in the
first case, declaring the plaintiff to have no such right, is res adjudicata
in the second case. (Sunflower Umbrella Manufacuring Co., Inc. v. De
Leon, et al., G.R. No. 107349, Sept. 26, 1994, 237 SCRA 153, at p.
159, the Supreme Court, quoting from Moran, Comments on the Rules
of Court, Vol. 2, 1988 Ed., pp. 357-358.)
In the earlier case of def Castillo, et al. v. de Samonte, G.R. No.
L-12880, April 30, 1960 (107 Phil. 1105, at p. 1111 ), the Supreme Court,
citing other decisional rules, reiterated that: "As to the other aspects of
res judicata, it is settled that notwithstanding the difference in the form
of two actions, the doctrine of res judicata will apply where it appears
that the parties are in effect litigating for the same thing.' A party cannot,
by varying the form of his action, or adopting a different method of
presenting his case, escape the effects of res judicata."
In Mangoma v. CA, eta/., G.R. No. 99375, Feb.1, 1995, 241 SCRA
21, at pp. 23-25, the High Tribunal likewise sustained the defense of
res judicata where the first action filed by the petitioner therein was for
specific performance, and the second for annulment of title. In that case
of Mangoma, the Supreme Court did not agree with the ratiocination of
the trial court that there was neither identity of subject matter nor cause
of action between the two cases.
11. P sued D for collection of a sum of money. Because D
was out of the country, P was allowed to have the summons served
upon D by publication. But the complaint was dismissed several
months later for failure of P to have the summons published in
a newspaper of general circulation within reasonable time. This
154
RULE 16- MOTION TO DISMISS
failure on the part of P was held by the trial court as failure to
prosecute. A year later, P filed a new complaint against D for a sum
of m~ney. T~e new complaint contains the same allegations set
forth m the first complaint. D moved to dismiss the new complaint
on the ground of res Jud/ca ta. Should the complaint be dismissed?
No, the complaint should not be dismissed. Res judicata has not
set in. As can be seen, when the first complaint was dismissed the trial
court did not ha~e jurisdiction over the person of D because he had not
been served with summons and he did not voluntarily appear in the
action. For the trial court to have authority to dispose of the case on
the merits, it must first acquire jurisdiction over the subject matter and
the parties. Thus, the order of dismissal did not amount to adjudication
of the case on the merits. (Gardose v. Terroze, G.R. No. 130570, May
19, 1998.)
12. X, in her capacity as guardian of minor Y, filed a com-
plaint against Z for maintenanceand support. In due time, Z filed
his answer alleging therein a counterclaim. Later, the parties
agreed to withdraw the case and the counterclaim. Whereupon,
the trial court dismissed the case with prejudice. Almost six years
later, another complaint for maintenance and support was filed
against Z. The complaint this time was in the name of Y, represent-
ed by X. Defendant Z moved to dismiss the second case on the
ground of res judicata. If you were the judge, would you dismiss
the case?
· No I would not dismiss the case. Defendant's invocation of res
judicata is misplaced. The dismissal of the first case with prejudice does
not have the effect of res judicata on the second case because the case
involves future support. Under the law, claim for future support cannot
be the subject of a compromise agreement. (De Asis v. CA. G.R. No.
127578, Feb. 15, 1999 [303 SCRA 176].)
13 on December 10, 1976, the RTC granted, in LRC No.
N-983 the application of Spouses D and F for registration of title to
[1
Lot N~. 18. This decision became final and executory on January
29, 1977. More than 10 years later, or.on F~bruary.12,1997, T filed
with the RTC an application for reg1strat1onof title to the same
lot. This case was docketed as LRC No.1437-N. Dan~ F opposed
T's application, arguing that res judicata bars t~~ fih~g thereof.
T argues that as no action for revival of the declslon m LRC No.
I
I 155
I.
l

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
N-983 was filed by D and F within the 10-year prescriptive period,
the judgment became extinct, and an extinct judgment cannot be
the basis of res judicata. Does the decision in LRC No. N-983 con-
stitute resjudicata in LRC No. 1437-N?
Yes. In Ting v. Heirs of Diego Lirio, etc., G.R. No. 168913, March
14, 2007, the Supreme Court held: "In a registration proceeding insti-
tuted for the registration of a private land, with or without opposition, the
judgment of the court confirming the title of the applicant or oppositor, as
the case may be, and ordering its registration in his name constitutes,
when final, res judicata against the whole world." The land registratio_n
proceedings being in rem, the land registration court's approval in LRC
No. N-983 of D and F's application for registration of the lot settled its
ownership, and is binding on the whole world including T.
Citing Sta. Ana v. Men/a, et al., 111 Phil. 947, 951, the Supreme
Court explained that Section 6, Rule 39 [which refers to execution by
motion or by independent action] applies to civil actions and is not
applicable to special proceedings, such as a land registration case.
This is so because a party in a civil action must immediately enforce a
judgment that is secured as against the adverse party, and his failure
to act to enforce the same within a reasonable time as provided in the
Rules makes the decision unenforceable against the losing party. In
special proceedings the purpose is to establish a status, condition or
fact; in land registration proceedings, the ownership by a person of a
parcel of land is sought to be established. After the ownership has been
proved and confirmed by judicial declaration, no further proceeding
to enforce said ownership is necessary, except when the adverse or
losing party had been in possession of the land and the winning party
desires to oust him therefrom.
14._ Does a ~revious final judgment denying a petition for
· ~eclarat!on of nulltty of marriage on the ground of psychological
incapacity bar a subsequent petition for annulment on the ground
of lack of marriage license?
Yes. In both petitions, the cause of action is the same - the
de~laration of nullity of marriage. What differs is only the ground upon
wh1~h t~e cause ?f ~ction is predicated. A party cannot avoid the
appllc_ation~f res judicete by simply varying the form of his action or
adopting a different method of presenting his case. (Mal/ion v. Alcantara
G.R.'No. 141528, Oct. 31, 2006.) .'
156
nl=iiiiiiliilJll~lll~lll.t:::::::IUJ JUc=:s::IIIU
RULE 16-
MOTION TO DISMISS
15. X and Y entered i t ..
x °
owner of the land wo Id n a ~omt venture agreement whereby
s~bdivision and sha're i ~h permit Y to develop the said land into a
lots on a 50-50 basis ;h .e proc!eds of the sale of the subdivision
· eir relationship howe t d X
wrote to Y, extrajudiciall . . , . ver, urne sour.
in the RTC of Rizal for y re~cmdmg their agreement. y sued X
trial court later r d spe?1fic performance plus damages. The
. . f th en ered Judgment declaring the extrajudicial
resc1ss1on o
This judgment bee
e agreement by x · ·
as improper, invalid, and illegal.
·
. . ame final. Subsequently, however, X filed an
action
. . with the RTC of Manila forth e JU
. d'tcra • • of the same
. 1 rescrssion
_1omt v~nture agreement. Y, now as defendant, moved to dismiss
· the action on the ground of res judicata. Should the motion be
granted?
. Y~s, the motion to dismiss the second action on the ground of
res judicet« should be granted. Here, all the elements of res judicata
. are_ presen!. Th_e te_st often used in determining whether causes of
action are tdenncal rs to ascertain whether the same evidence which
is necessary to sustain the second action would have been sufficient
. to author,ize a recovery in the first, even if the nature or forms. of the
, two actions are different. If the same facts or evidence would sustain
both, the two actions are considered the same within the rule that the
[udqrnent in the former.is a bar to the subsequent action; otherwise, it is
not. (Cruz~-, CA, G.R. No~ 135101,.May 31, 2000.) .
r 16. What is the underlying philosophy of the doctrine of res
judicata? ·
The underlying philosophy of the doctrine of res judicata is that
parties should not be permitted to litigate the same issue more than
once. When a right or fact has been judicially tried and determined by a
-court of competent jurisdiction, or an opportunity for such trial has been
given, the judgment of the court, so long as it has not been reversed,
should be conclusive upon the parties and those in· privity in them in
law or estate. It is to the interest of the public that there should be an
end to litigation by the same parties and their privies over a subject
already fully and fairly adjudicated. (Sanga/ang v. Caparas, et al., G.R.
No. L-49749, June 18, 1987, (151 SCRA 53).)
The doctrine of res judicata is founded upon two grounds: (1)
public policy and necessity which make it the interest of the State that
there should be an end to litigation (republicae ut sit finis litium); (2)
157
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
the hardship on the individual that he should be vexed twice for the
same cause (nemo debet bis vexare et eadem causa). (Gaf/ardo-Corro
v. Gaf/ardo, G.R. No. 136228, Jan. 30, 2001.)
In Sunflower Umbrella Manufacturing Co., Inc. v. de Leon, et al.,
G.R. No. 107349, Sept. 26, 1994 (237 SCRA 153), the Supreme Court,
quoting from Moran, Comments on the Rules of Court, Vol. 2, 1988 ed.,
pp. 357-358, said: "(S) Identity of cause of action or issue. - In order
that a judgment rendered in a case may operate as a res judicata In a
subsequent case, it is essential that the cause of action in the two cases
should be the same. In this connection distinction should be made
between 'cause of action' and 'relief.'" Cause of action is the wrong or
delict committed by the defendant by which he violated the rights of the
plaintiff, whereas relief is the remedy sought for such violation. A cause
of action may give rise to different remedies, and though the remedy
prayed for in one case is not the same as that sought in a subsequent
case, if both remedies arise from the same cause of action, there is
res judicata. Thus, if, in the former case, the plaintiff sought specific
performance of a contract and, in the second rescission thereof, but the
cause of action in the two cases is the same, that is, non-performance
on the part of the defendant, the judgment rendered in the first case in
favor of the defendants is res adjudicata in the second. Again, if in the
first case, the relief sought is accounting of certain funds, and in the
second case, partition of the funds, but the cause of action in the two
cases is the same, that is, the plaintiff's right to the fund as denied by
the defendant, the judgment rendered in the first case, declaring the
plaintiff to have no such right, is res adjudicata in the second case. That
the remedy sought, or the mere form of action, may be different, does not
prevent the estoppel of the former adjudication. If, upon the facts in issue
in the former action, the plaintiff was entitled in that action to a remedy
such as the law awards as compensation or redress for the alleged
wrong, or if upon those facts he was entitled to no remedy, adjudication
of his right to recover, in that action bars his right to afterwards seek a
different remedy upon the same facts or cause of action. Accordingly, a
final judgment in an ordinary civil action determining the ownership.of
certain lands, is res adjudicata in a registration proceeding where the
parties and the property are the same as in the former case."
Res judicata literally means "a matter adjudged; a thing judicially
acted upon or decided; a thing or matter settled by judgment." It has two
aspects, namely: (a) bar by prior judgment, as enunciated in Rule 39,
158
RULE 16-M
OTION TO DISMISS
section 49(b); and (b) conclusive .
?1
in Rule 39, Section 47(c). (Dap ness Judgment, which is contained
27, 2004.) er v. Biascan, G.R. No. 141880, Sept.
17. Within the time for fill
motion to dismiss, allegln th ng his answer, defendant filed a
action. Must the court reqgulreat the complaint states no cause of
whether or not the compl I t presentation of evidence to show
a n states a cause of action?
No. In determining whether the complaint states a cause of action
the court ne~d not go beyond the four comers of the complaint. The test
of the sufficiency of th7 complaint is, whether accepting the veracity of
the facts alleged
. therein, the court could render a va lid · d gmen t upon
, JU
the same m accordance with the prayer of the complaint. (Ga/eon v.
Ga/eon, 49 SCRA 516.)
As held by the Supreme Court in Azur v. Provincial Board, G.R.
No. L-22333, Feb. 27, 1969 (27 SCRA 50): win order to sustain a dis-
missal on the ground that the complaint states no cause of action the
insufficiency of the cause of action· must appear on the face of the com-
plai nt, and the test of sufficiency of the facts alleged in the complaint,
to constitute a cause of action, is whether or not, admitting the facts
alleged, the court could render a valid judgment upon the same in accor-
dance with the prayer of the complaint. For this purpose, the motion to
dismiss must hypothetically admit the truth of the facts alleged in the
complaint."
Simply put, if the court could render a valid judgment based on
'the facts alleged in the complaint, then the complaint is sufficient; if the
court could not render a valid judgment, the complaint is not sufficient
and should be dismissed.
18. What are the distinctions between "failure to state a
cause of action" and "lack of cause of action?"
The following are the distinctions:
. a) the former refers to the insufficiency of. allegations _in the
pleading; the latter to the insufficiency of factual basis for the action;
b) the former may be raised in a motion to dismiss under Rule
16; the latter may be raised at any time; and
c) dismissal for failure of the pleading ~o sta~e a_cause of action
can be made at the earliest stages of an action; dismissal for lack of
159
 ... ~
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
cause of action is made after questions .of fact have been resolved on
the basis of stipulations, admissions, or. evidence presented. (Dabuco
v. CA, G.R. No. 133775, Jan. 20, 2000.)
Thus, even if the plaintiff has a cause of action, but his complaint
fails to state it, his complaint may still P.e. dismissed on motion of the
defendant under Rule 16.
19. Distinguish "lack of legal capacity to sue" from "lack of
legal personality to sue."
Lack of legal capacity to sue, as a ground for a motion to dismiss,
means that the plaintiff is not in the exercise of his civil rights, or does
not have the necessary qualification to appear in the case, or does not
have the character or representation he claims. On the other hand, if
plaintiff lacks legal personality to sue 'because he is not the real party-
in-interest, the ground for dismissal ·is that the complaint states no
cause of action.
If, for example, several individuals file an action which they allege
to be a class suit, but the subject matter of the action is not of common
or general interest to many persons, 'the remedy of the defendant is to
file a motion to dismiss on the ground of lack of legal capacity to sue
because the plaintiffs do not have the character or representation that
they claim.
20. In 1989, X borrowed P2,000 from Y. Several days later,
Y asked X to sign a document. When X asked what it was, Y told
him it was just a document to show that X had a debt amounting
to P2,000. X signed the document, which turned out later to be a
deed of sale over a parcel of land owned by X. It was in 1991 that X
learned about the true nature of the document. In 1997, X filed an
action against Y to declare the deed of sale void. Y moved to dismiss
the complaint on the ground of prescription. Y cited Article 1391 of
the Civil Code which states that an action to annul a contract on the
ground of vitiated consent must be filed within four years from the
discovery of the vice of consent. If you were the judge, would you
grant Y's motion to dismiss?
No. In this case, the consent of X was not merely marred by vice
of consent but that he had not given his consent at all. Lack of consent
rendered the sale void altogether. The deed of sale can therefore be
160
-
RULE 16 ..;..'MOTION TO DISMISS
.
• ' ' , 'I • ~
attacked at any time conformably.to the rule in Article 1410 of the Civil
code that an action to declare-the inexistence of a void contract does
not prescribe. (Rongavil/a v. CA;'G.R. No. 83974, Aug. 17, 1998.)
21. One ground upon, ~hich a motion to dismiss may be
filed is that a condition precedent for filing the claim has not been
complied with. Give instances when this ground may be invoked.
This ground may be invoked. when: ··
a) plaintiff fails to exhaust administrative remedies;
b) plain.tiff fails to comply with the requirement of prior referral
of the dispute to the Lupon Tagapamayapa; or
. c) when,the suit i~.b~~een members of the same family, and
it is not alleqed in the verifiedcornplaint that earnest efforts toward a
compromlse have been.made, butthe same have failed.
Article 151 · of the•Family Code provides: "No suit between mem-
bers of the same family shall prosper unless it should appear- from the
verified complaint or petition. that.earnest efforts toward a compromise
have been made, but that the same have.failed. It if is-shown that no
such efforts-were in fact made, m~ .case must be dismissed. This rule
does not apply to cases whlch.may.not be the subject of compromise
under the Civil Code."
In Spouses Aug~st6 Hontiveros·a,:,d M~ria Hontiveros v. Regional
Trial Court, Branch 25, tloito Cfty;· ·ef al., G.R No. 125465, June 29,
1999, the Supreme Court 'explained that Article 151 _ of the Family
Code does not also apply if the suit is not exclusively' among family
members .. Under this provision, ·the·phrase members of the same family
refers to the husband and ·wife;' parents and children, ascendants and
descendants and brothers and sisters, whether full or half-blood. ·The
enumeration' of brothers and sisters· as members of the same family
does not comprehend brothers-in:-law and sisters-in-law.
. · Section 3: Rui~ 81 of the. fog·zRules of Civil Procedure merely
requires gener~I av~'rm~~~ of a·~ondition· precedent in a pleading. It
states: "In any .Pleading 'a general averrnent of the performance or
occurrence of all conditions precedent shall be sufficient." In Wee v.
Galvez,'G.R. No. 147394, Allgust-11, 2004, the amended complaint
alleged: "Earnest effort towards have been made but the same have
failed." The allegation -dld not ·mention the word "compromise" 'atter
161
 QUESTIONS AND'ANSWERS IN RULE 16 ~-MOTION TO DISMISS
REMEDIAL LAW

the word "towards." The Supreme Court found this to be a sufficient
compliance with the requirement of general averment of a condition
precedent.
22. Suppose the defendant files a motion to dismiss the
complaint on any of the grounds stated in Section 1 of Rule 16,
and after hearing the court grants the motion and dismisses the
complaint, what is the remedy of the plaintiff?
The plaintiff, whose complaint is dismissed on any of the grounds
enumerated in Section 1, Rule 16, may either: (a) refile his complaint,
subject to the exceptions enumerated below; or (b) appeal from the
order of dismissal:
But the plaintiff cannot anymore refile his complaint if the dismissal
thereof is based on any of the following grounds: (a) that the cause
of action is barred by prior judgment; (b) that the cause of action is
barred by the statute of limitations; (c) that the claim or demand set
forth in the plaintiff's pleading has been paid, waived, abandoned, or
otherwise extinguished; (d) that the claim on which the action is founded
is unenforceable under the provisions of the statute of frauds. If the
complaint is dismissed on any of said grounds, the only remedy of the
plaintiff is to appeal from the order of dismissal. (Rule 16, Sec. 5.)
No, the order is not correct. The reason "no merit" stated in the
order is not sufficient compliance with Section 3, Rule 16. Simply
stating "no merit" often creates difficulty and misunderstanding on the
part of the aggrieved party in taking recourse therefrom and likewise in
the higher court which is called upon to resolve the issue. (lntramuros
Administration v. Yvette Contacto; et al., G.R. No. 152576, May 5,
2003.) · · ·
25. If defendant's motion to dismiss is denied,' within what
time must he file his answer? ·
...
. He must file his answer within the balance of the period to which
he was entitled at the time of serving his motion, but not less than five
days in any event, computed from his receipt of the notice of the denial
of his motion. (Rule 16, Sec.'·:{/ · ·
, , , 1 I''·

23. If the defendant files a motion to dismiss based on any

of the grounds mentioned in Section 1 of Rule 16, may the court • .,.
. • J
' •

defer resolution thereon for the reason that the ground relied upon .
.....
. . 'I ...
. I,

is not indubitable?
No. The rule now is· that the court, after hearing, may either:
(a) dismiss the action or claim; (b) deny the motion; or (c) order the
.I I • ~ •.·

"_,·- . :. r: •.
• l I• ~. .

amendment of the pleading. It cannot defer resolution on the motion to

dismiss. (Rule 16, Sec. 3.)
I ... , .. ( :
24. Section 3, Rule 16 requires that the resolution of the • JI t • ~ .• : • • • I ... , .... } - ~ . ' ~ ·,,

motion shall state clearly and distinctly the reasons therefor. Sup- .. .. ~
pose the order denying the motion to dismiss states: "For reso-
lution of this Court is a Motion to Dismiss filed by defendant through . . ! ~ . ',
counsel, on g~ounds that there is another action pending between ~ , ' • : I O •; • \ I .. •

the same parties for the same cause. Finding no merit therein the
Motion to Dismiss is hereby denied." Is the order correct? ' .' •.' .i.'l,,

162 .163

RULE 17
DISMISSAL OF ACTIONS
1. May the plaintiff dismiss his own complaint? How?
Yes, the plaintiff may dismiss his own complaint-
a) By filing a Notice of Dismissal. The plaintiff may file the
notice of dismissal at any time before service upon him of the answer or
of a motion for summary judgment. The dismissal is without prejudice,
unless otherwise stated in the notice itself or if barred by the two-
dismissal rule. The rule requires that, upon such notice being filed, the
court shall issue an order confirming the dismissal.
b) By filing a Motion to Dismiss. But the complaint shall not
be dismissed at the instance of the plaintiff without the approval of the
court. Furthennore, if a counterclaim has been pleaded by the defend-
ant prior to the service upon him of plaintiff's motion to dismiss, the
dismissal shall be limited to the complaint. Such dismissal is without
prejudice, unless otherwise specified by the court in its order. (Rule 17,
Secs. 1 and 2.)
2. What is the two-dismissal rule?
It is the rule that provides that a notice of dismissal operates as
an adjudication of the case upon the merits when filed by a. plaintiff
who has once dismissed in a competent court an action based on or
including the same claim. (Rule 17, Bee. 1.) · appeal because under Section 1, Rule 41, an order dismissing an action
3. In what instances may the court dismiss the complaint
on its own motion or on motion of the defendant?
In the following instances:
a) if, for no justifiable cause, the plaintiff fails to appear on the
date of the presentation of his evidence in chief on the complaint; .
b) if, for no justifiable cause, the plaintiff fails to prosecute his
action for an unreasonable length of-time; or
164
~I
RULE 17 - DISMISSAL OF ACTIONS
c) if, for no justifiable cause, the plaintiff fails to comply with the
Rules of Court or any order of the court.
In any of these instances, the dismissal shall have the effect of an
adjudication upon the merits, unless otherwise declared by the court in
its order of dismissal. (Rule 1.7, sec. 3.)
In Cruz, et al. v. CA, et al., G.R. No. 164797, February 13, 2006,
the Supreme Court has explained the rule expressed in Section 3,
Rule 17, in these words: "The· rule enumerates the instances where
the complaint may be dismissed due to plaintiffs fault: (1) if he fails to
appear on the date for the presentation of his evidence-in-chief; (2) if
he fails to prosecute his action for an unreasonable length of time; of
(3) if he fails to comply with the rules or any order of the court. Once
a case is dismissed for failure to prosecute [or for failure to appear on
the date for the presentation of his evidence in chief; or for failure to
comply with the rules or any order of the court], this has the effect of
an adjudication on the meritsand is understood to be with prejudice
to the filing of another action unless otherwise provided in the order of
dismissal. In other words, unless there be a qualification in the order of
dismissal that it is without prejudlce, the dismissal should be regarded
as an adjudication on the m~~~s ~~d is with prejudice."
4. If the trial court dismisses the complaint on any of the
grounds mentioned in Q&A No. 3, what is the remedy of the plain-
tiff?
The remedy of the plaintiff is to appeal within the reglementary
period from the order of dismissal because the order of dismissal is
a final order in the sense that it completely disposes of the complaint.
But, if the order of dismissal states that the dismissal is without
·prejudice, the remedy of the plaintiff is to refile his complaint. He cannot
without prejudice is not appealable. ·
. 5. Suppose·the case· is dismissed on any. of the grounds
mentioned in Q&A No. 3, but the order of dismissal does not con-
tain the declaration that the dismissal is without prejudice,and the
plaintiff did not appeal therefrom within the reglementary· period,
may he refile the samecomplaint?
No, plaintiff cannot refile the same complaint. Th~ ?rder of dis-
missal has already become final -for ·failure of the plaintiff to appeal
165
 ""'WJ
I j
i
; I

QUESTIONS AND ANSWERS IN RULE 17 ~ ql~MISSAL OF ACTIONS

I
I
REMEDIAL LAW
' !..
the~efrom within the reglementary period. If he refiles the same co _ claim (whether compulsory or permissive) in the same action or in a
separate action. (Rule 16, Sec, 6; Rule 17, Secs. 2 and 3.)
i I'
plaint, ~he .defendant may move _to ?ismiss it on the ground that t~
complaint rs already barred by pnor Judgment (or res judicata). This ·
8. P. sued D for recovery of ownership of a parcel of land.
I
so because the order of dismissal has the. effect of adjudication up~~
the merits of the case. · · · D filed his answer and set up a counterclaim against P. After the
pre-trial, the case was set for trial. P, as well as his counsel, failed
In Cruz, et al. v. CA, et al., G.R'. No. 164797, Feb. 13, 2006, the to appear without justifiable cause on the date of the presentation
Supreme Court explained: "The rule enumerates the instances where of his evidence In chief on the complaint. The court dismissed the
the complaint may be dismissed due to plaintiffs fault: (1) if he fails to complaint and the counterclaim.Is the dismissal correct?
appear on the date for the presentation of his evidence in chief; (2) if
The dismissal of the complaint is correct. The court, however,
he fails to prosecute his action for an unreasonable length of time; of
erred in dismissing the counterclaim. Under Section 3, Rule 17, the .j
(3) if he fails to comply with the rules or any order of the court. Once
complaint may be dismissed on motion of the defendant or upon the
a case is dismissed for failure to prosecute, this has the effect of an
court's own motion on any of the following grounds: (a) if the plaintiff
adjudication on the merits and is understood to be with prejudice to
fails Jo appear on the date of the presentation of his evidence-in-chief
the filing of another action unless otherwise provided in the order of
on the complaint; (b) if the plaintiff fails to prosecute his action for an
dismissal. In other words, unless there be a qualification in the order of
unreasonable length of time; or (c) if the plaintiff fails to comply with the
dismissal that it is without prejudice: the.dlsrnissal should be regarded
Rules of Court or any order of ttie court. The dismissal of the complaint
as an adjudication on the merits and Is with prejudice." '·
on any of these grounds is without prejudice to the right of the defen-
6. After plaintiff had rested his case, the. defendant pre- dant to prosecute his counterclaim in the same or in a separate action.
sented his evidence and, thereafter, rested his case. On motion of This applies whether the counterclaim is permissive or compulsory.
the plaintiff, the continuation of hearing was set on July 16, 2014,
at 8:30 in the morning, for the presentation of plaintiff's rebuttal
evidence.Becauseplaintiff, for no justifiable cause,failed to appear
on that day, the trial court dismissed his complaint. Is the dismissal
of the complaint correct?
No, because plaintiff's failure to appear was on the date for
f .••
the presentation of his rebuttal evidence. Since plaintiff had already
presented his evidence-in-chief on the complaint and had, in fact, i4 ; : I .,-: .. : :.
already rested his case, what the court should have done is to consider !
"" ,
.

plaintiffs failure to appear as waiver of his right to present rebuttal

evidence and, then, consider the case submitted for decision. ·

7. If a complaint is dismissed on motion of the plaintiff :·> .... t •••

himself, or on motion of the defendant, or on court's own motion,
is the counterclaim asserted in defendant's answer likewise dis-
missed?
No. The rule now is that dismissal of the complaint on motion of
the plaintiff or on motion of the defendant, or on court's own motion is
without prejudice to the prosecution by the defendant of his counter-
167
166
 RULE 18- PRE-TRIAL

I) such other matters as may aid in the prompt disposition of

the action. (Rule 18, Sec. 2.)

4. One of the purposes of pre-trial as stated in Section 2,

RULE 18 · · Rule 18 Is to consider the possibility of submission of the dispute
to alternative modes of dispute resolution. What are the alternative
PRE-TRIAL modes of dispute resolution?
The following:
1. What is pre-trial? a) Arbitration;
. ~re-trial is a procedural device intended to clarify and limit the b) Mediation;
basic ,~sues between_ the pa~ies. Its main objective is to simplify,
abbrev1at_e. and expedite the tnal, or totally dispense with it. (Interlining c)· Conciliation;
Corpora_t,_on, et al. v. Philippine Trust Co., G.R. No. 44190, March 6, d) · Early Neutral Evaluation;
2002, citmg Abubakar v. Abubakar, GR. No. 134622 Oct. 22 1999
[317 SCRA 264).) ' ' e) Mini-Trial; and
f) Any combination of the forgoing, like Mediation-Arbitration.
2. What is the nature of a pre-trial?
Arbitration means 'a voluntary dispute resolution process in which
Pre-trial is mandatory. (Rule 18, Sec. 2.) ,. ' '
one or more arbitrators, appointed in accordance with the agreement of
the parties, resolve a dispute by rendering an award.
3. What are the purposes of pre-trial?
Mediation means a voluntary process in which a mediator, selected
At the pre-trial, the court shall consider the following: by the disputing parties, facilitates communication and negotiation,
a) . the possibility of an amicable settlement or of a submission and assist the parties in reaching a voluntary agreement regarding a
to alternative modes of dispute resolution; dispute.
b) the simplification of issues; . Early Neutral Evaluation means a process wherein the parties and
their lawyers are brought together early in a pre-trial phase to present
c) the necessity or desirability of amendments to the pleadlnqs; summaries of their cases and receive a non-binding assessment by
d) the possibility ?f
obtaining stipulations or admissions of facts an experienced, neutral person who has expertise in the substance of
and of documents to avoid unnecessary proof; . · the dispute.
e) the limitation of the number of witnesses; Mini- Trial means a structured dispute resolution method in which
the merits of the case are argued before a panel, with or without the
. . f) the advisability of a preliminary reference of issues to a com- presence of a neutral third person, after which the parties seek a
m~oo~ . . negotiated settlement. (R.A. No. 9285, known as "Alternative Dispute
g) . the propriety of _ren_de~ing judgment on the pleadings, or Resolution Act of 2004. •)
summary Judgment, or of d1sm1ssing the action should a valid ground
therefor be found to exist; 5. What are the sanctions that the court may impose upon
a parfy who fails to. attend the mediation proceedings notwith-
and h) the advisability or necessity of suspending the proceedings;
standing due notice to him?

169
168

...

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
In Linda M. Chan Kent v. Spouses Alvaro E. Micarez and Paz
Micarez, et al., G.R. No. 185758, March 9, 2011, the RTC dismissed
the civil case because of the failure of plaintiff's duty authorized
representative and her counsel to attend the mediation proceedings.
The Supreme Court, however, found the dismissal too severe a sanc-
tion because the records of the case is devoid of evidence of willful
or flagrant disregard of the rules on mediation proceedings. AM. No.
01-10-5-SC-PHILJA dated Oct. 16, 2001 (Second Revised Guidelines
for the Implementation of Mediation Proceedings) regards mediation as
part of pre-trial, and the parties must personally attend the proceedings.
The non-appearance of a party may be excused only when the repre-
sentative, who appears in his behalf, is· duly authorized to enter into
amicable settlement or to submit to alternative modes of dispute
resolution. The sanctions that the court may impose upon a party who
fails to attend the proceedings are censure, reprimand, contempt, and
even dismissal of the action in relation to Section 5, Rule 18 of the
1997 Rules on Civil Procedure. Unless the conduct of the party is so
negligent, irresponsible, contumacious; or dilatory as to justify dismissal
of the action, the court should consider: lesser sanctions.
6. At the pre-trial, the defendant made several admissions.
On the basis of these admissions, the court finds that the issues
raised by the defendant in his answer are sham. May the court
already render summary judgment? .
No. Since, at the pre-trial, the .court shall merely consider the
propriety of rendering summary judgment, the plaintiff must still file a
motion therefor.
7. Under Section 2, Rule 18, one of the purposes of pre-trial
is the propriety of rendering judgment on the pleadings, or sum-
mary judgment, or of dismissing the action should a valid ground
therefor be found to exist May a motion for judgment on the plead-
ings or a motion for summary judgment be filed before pre-trial? If
the motion for judgment on the pleadings or motion for summary
judgment is filed before the pre-trial, but it is left unresolved does
its non-resolution prevent the holding of the pre-trial? '
As held in Pascual v. First ConsolidatedRural Bank (Bohol), Inc.
et al., G.R. No. 202597, Feb. 8, 2017, a motion for summary judgment
(or even a motion for judgment on the pleadings) may be filed before
170
-
RULE'18- PRE-TRIAL
the pre-trial. Its non-resolution prior to the pre-trial does not prevent the
holding of the pre-trial. In this case, the Supreme Court has considered
erroneous the ruling of the Court of Appeals that it is only at the pre-trial
that the rules allow the court to render judgment on the pleadings and
summary judgment.
Explaining the rule, the Supreme Court held: "To be clear, the rule
only spells out that unless the motion for such judgment has earlier
been filed the pre-trial may be the occasion in which the court considers
the propriety of rendering judgment on the pleadings or summary judg-
ment. If no such motion was earlier filed, the pre-trial judge may then
indicate to the proper party to initiate the rendition of such judgment by
filing the necessary motion."
The pre-trial judge has to make such an indication to the proper
party because if no motion is filed, the court cannot motu proprio render
the judgment on the pleadings or summary judgment.
8. When is the case considered ripe for pre-trial?
The case is considered ripe for pre-trial after the last pleading has
been served and filed. (Rule 18, Sec. 1.)
9. Whose duty is it to have the case set for pre-trial? If the
case has not been set for pre-trial for a long period of time, may the
case be dismissed for failure to prosecute?
Section 1, Rule 18 of the 1997 Rules of Civil Procedure provides
that it is the duty of the plaintiff, after the last pleading has been served
and filed, to promptly move ex parte that the case be set for pre-trial.
A.M. No. 03-1-09-SC, which took effect on August 16, 2004,
provides, however, that: "Within five (5} days from date of filing of the
reply, the plaintiff must promptly move ex parte t~at the_ cas~ ~e set
for pre-trial conference. If the plaintiff fails to _file said m?t1on within _th:
given period, the Branch Clerk of Court shall issue a notice of pre-tnal.
In Eloisa Merchandising, Inc., et al. v. Banco de Oro Universal
Bank, et al., G.R. No. 192716, June 13, 2012, the Supreme Court said:
"While under the present Rules, it is now the duty of !h~ clerk of co~rt to
set the case for pre-trial if the plaintiff fails to do so within the prescribed
period this does not relieve the plaintiff of his own duty to prosecute
the case diligently." (The author is of the opinion that if the clerk of court
171

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
fails to set the case for pre-trial, and the plaintiff likewise fails, within a
reasonable time, to move that his case be set for pre-trial, the court may
dismiss the case for failure to prosecute.)
10. P sues D. D files an answer without a counterclaim. May
the case be set for pre-trial already?
Yes, because the last pleading -which, in this case, is the answer
- has already been served and filed.
11. P sues D. D files an answer with a permissive counter-
claim. May the case be set for pre-trial a\ready?
No, because the last pleading has not yet been served and filed.
The last pleading in this case is the answer of P to the permissive
counterclaim. If P does not file an answer to the permissive counter-
claim within the reglementary period, he may be declared in default as
to the permissive counterclaim. If, in the problem given, the counter-
claim is compulsory, the case may already be set for pre-trial because
the compulsory counterclaim requires no answer and is, therefore, the
last pleading.
12. P sues D. D files an answer, and with leave of court files
a third-party complaint against C. May the case be set for pre-trial
already?
No, because the last pleading has not yet been served and filed.
The last pleading in this case is C's answer to the third-party complaint.
13. On whom shall the notice of pre-trial be served?
The notice of pre-trial shall be served on counsel, or on the party if
he has no counsel. The counsel served with such notice is charged with
the duty of notifying the party represented by him. (Rule 18, Sec. 3.)
14. May pre-trial be conducted although no notices of pre-
trial were served on the parties?
No. The absence of a notice of pre-trial renders the pre-trial, if
one is held, void, and all the subsequent proceedings, including the
judgment, are also void. The absence of notice of pre-trial constitutes
a violation of a person's constitutional right to due process. A notice of
pre-trial should notify the parties of the date, time, and place of the pre-
172
lllll~
RULE 18- PRE-TRIAL
trial and should require them to file their respective pre-trial briefs within
the time prescribed by the rules. (Philippine National Bank v. Angelito
Perez, et al., G.R. No. 187640, June 15, 2011.)
In Philippine National Bank v. Angelito Perez, et al. (and its
companion case). The order of the trial court states: " ... let this case
be set for hearing on March 8, 2006, at 8:30 in the morning. Defendant
pNB is hereby directed to prepare and complete within 30 days from
receipt of this order a statement of account for the plaintiffs covering
payments made for the period beginning 1995 to 2000, allowing the
plaintiffs of their authorized representatives to inspect the same at the
bank premises during regular banking hours." As PNB failed to attend
the hearing on· March 8, 2006, the trial court considered the hearing as
a pre-trial conference and allowed plaintiffs to present evidence before
the branch clerk of court. On July 5, 2006, the trial court rendered a
decision against PNB and in favor of the plaintiffs. Is the decision valid?
No. The lack of notice of pre-trial rendered all subsequent proceedings,
including the decision, void. The trial court erred in considering its order
setting the case for hearing on March 8, 2006 as a notice of pre-trial. A
notice of pre-trial notifies the parties of the date, time, and place of the
pre-trial and require them to file their respective pre-trial briefs within
the time prescribed by the rules. Its absence renders the pre-trial and all
subsequent proceedings void. The order in question merely spoke of a
"hearing on March 8, 2006" and required PNB to prepare and complete
a statement of account.
15. Is personal presence oUhe parties-required at the pre-
trial?
Yes. Rule 18, Section 4 provides that it shall be the duty of the
parties and their counsel to appear at the pre-trial.
The non-appearance of a party at the pre-trial may be excused
only in the following instances:
a) if a valid cause is shown therefor; or
b) if a representative shall appear .in his beh~lf fully authorized
in writing to do the following: (1) to enter into an a~mcable settlement;
(2) to submit to alternative modes of dispute resolution; and (3) to enter
into stipulations or admissions of facts and of documents. (Rule. 18,_
Sec. 4.) ·
173
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
16. What is the effect or consequence of a party's failure to
appear at the pre-trial despite notice?
a) If it is the plaintiff who fails to appear:
If, despite due notice, plaintiff fails to appear at the pre-trial, his
complaint shall be dismissed. The dismissal shall be with prejudice,
unless otherwise ordered by the court. (Rule 18, Sec. 5.) His remedy
is to appeal from the order of dismissal because the dismissal is a final
resolution of the case. But if the dismissal is ordered by the court to be
without prejudice, his remedy is to refile his complaint, not appeal.
b) If it is the defendant who fails to appear:
The failure of the defendant to appear despite due notice shall be
a cause to allow the plaintiff to present his evidence ex parte and the
court to render judgment on the basis thereof. (Rule 18, Sec. 5.)
Under the new Rules, the consequence of non-appearanceof the
defendant without cause at the pre-trial is not for the defendant to be
considered "as in default," but "to allow the plaintiff to present evidence
ex parte and the court to render judgment on the basis thereof. To the
trial court's order allowing the ex parte presentation of evidence by the
plaintiff, the defendant's remedy is a motion for reconsideration.' An
affidavit of merit is not required to be attached to such motion, because
the defense has already been laid down in the answer. (Jonathan
Landoil International Co., Inc. v. Mangudadatu, et al., G.R. No. 155010,
Aug. 16, 2004.) · offered during the trial in support of a party's evidence-in-chief other
17. Is the failure of defendant's counsel (or plaintiff's coun-
sel) to appear at the pre-trial despite notice, a cause to allow the
plaintiff to present his evidence ex parte (or, a cause for the dis-
missal of the action)'? ·
No. Although Section 4, Rule 18 imposes the duty on the parties
and their respective counsel to appear at the pre-trial, it provides no
sanction should the parties or their counsel fail to appear at the pre-trial.
The sanction is provided for in Section 5 which penalizes the· failure
to appear of elther the plaintiff or the defendant. But the rule does not
proyide any penalty for the failure of parties' counsel to appear. Under
Section 5, defendant's failure to appear at the pre-trial despite notice
shall be a cause to allow the plaintiff to present his evidence ex parte
and the court to render judgment on the basis thereof. Plaintiff's failure
174
RULE 18- PRE-TRIAL
to ap~ear.at the pre-trial ~hall be a causefor the dismissal of the action.
The dismissal shall be with prejudice,unless otherwise ordered by the
court. (Paredes, et al. v. Verano, et al., G.R. No. 164375, Oct. 12, 2006.)
18. What must the parties file with the court at least three
days before the date of the pre-trial?
. The parties must file their respectivepre-trial briefs with the court,
serving the adverse party with a copy thereof at least three days before
the pre-trial.
The pre-trial brief shall containthe following:
a) . a statement of their willingness to enter into an amicable
settlement indicating the desired terms thereof, or to submit the case
to any of the alternative modes of dispute resolution; a summary of
admitted facts and proposedstipulation of facts;
:· b) the issues to be tried or resolved;
c) the number and names of witnesses to be presented, an
abstract of their testimonies,and the approximatenumber of hours that
will be required by the parties for the presentationof their respective
evidence;
d) the documents or exhibits to be presented, stating the
purpose thereof. (No evidence shall be allowed to be presented and
than those that had been earlier identified and pre-marked during the
pre-trial, except if allowed by the court for good cause shown);
e) a manifestation of their having availed or their intention to
avail themselves of any discoveryprocedure,or of the need of referral
of any issues to commissioners;
f) applicable laws and jurisprudence;and
g) the available trial dates of counsel for complete presen-
tation of evidence, which must be within a period of three months from
the first day of trial. (A.M. No. 03-1-09-SC, which took effect onAug .. 16,
2004.)
,;
The rule on the contents of the pre-trial brief must strictly be !
I
complied with.
175
 QUESTIONS AND ANSWERS IN : RUL~'1B-.:_PRE-TRIAL
REMEDIAL LAW

19. What is the effect of a party's failure to file his pre-trial
brief as required by the rules?
The failure of a party to file his pre-trial brief shall h~ve the sam~
effect as failure to appear at the pre-trial. (Rule 18, Sec. 6.)
Failure of the defendant to file his pre-trial .brlef shall have the
same effect as failure to appear at the pre-trial i.e., the plaintiff may
present his evidence ex parte and the court shall render judgment on
the basis thereof. The remedy of the defendant is to file a motion for
reconsideration showing that his failure to file a pre-trial brief was due to
fraud, accident, mistake, or excusable negligence.' The motion need not
stress the fact that the defendant has a valid and meritorious defense
because his answer which contains his defenses is already on record.
(Saguid v. CA, et al., G.R. No. 150611, June 10, 2003.) · ·
20. If a party, whether the defendant or plaintiff, fails to sea.:
sonably file his pre-trial brief, may the court nonetheless: conduct
pre-trial?
No. Rule 18 mandatorily requires the parties to seasonably file
their pre-trial briefs. Plaintiff's failure to do so shall be cause for the
dismissal of the action. On the other hand, defendant's failure to do so
shall be cause to allow the plaintiff to present his evidence ex parte and
the court to render judgment based thereon. The court cannot hold pre-
trial without the parties filing their pre-trial briefs. (Vera v. Rigor, et al.,
G.R. No. 147377, Aug. 10, 2007.)
21. What may the trial judge do before the pre-trial confer-
ence?
Before the pre-trial conference, the Judge may refer the case to
the Branch Clerk of Court for a preliminary conference to assist the
parties in reaching a settlement, to mark the documents or exhibits to
be presented by the parties and copies thereof to be attached to the
records after comparison and to consider such other matters as may.
aid in its prompt disposition.
. .. The minutes of preliminary co f ..
ttached by the Branch Cl k f · n erence and the exhibits shall be
a1 09 SC which took ette et r oACourt to the case record. (A.M. No. 03-
.-. • ' • "1 c on. H9· 16, 2004.)
22· The .r~I~ r~quires that at the pre-trial, the co~rt shall con-
si~er tthhe posrt~ibiltityof an ~micable settlement. How may the Judge
bring e pa res O a possible settlement of the dispute?
: . T~e Judge, with. ~II ta·c~, patiencs, impartiality and with due regard
to the rights of the pa:rt1es, ~hall endeavor to persuade them to arrive at
?f
a.. s~ttlei:nent the d~spute. The court shall initially ask the parties and
!heir lawyers ..if an a~1~:ble settlement of the case is possible. If not, the
JU~ge mar confer With the parties With the opposing counsel to consider·
the following: . · ·
: . a) . Gi~~n !he e~iderice of ttie plaintiff presented in his pre-trial
brief. to support his claim, what- manner of compromise is· considered
acceptabletotnedefendant at the-present stage?
. . ~) qiven the_ evidence of the defendant described in his pre-
trial brief to support his defense, what manner of compromise is consid-
ered acceptable to the plaintiff at the present stage?
. If. not successful, the court shall confer with the party and his
~ounsel separately. If the manner of compromise is not acceptable, the
Judge shall confer with the parties.without their counsel for the same
purpose of settlement. (A. M. No. 03-1-09-SC, which took effect an Aug .:
16, 2004.) .
23. What shall the Judge do if all efforts to settle fail?
If.all efforts to settle fail, the ~udge.shall.-
~) Adopt the minutes of preliminary conference as part of the
pre-trial proceedings and confirm· marking of exhibits or substituted
photocopies and admissions on the genuineness and due execution of
documents;

During the preliminary conference, the Branch Clerk of Court shall . ~) Inquire if there are cases arising out of the same facts
also ascertain from the parties the undisputed facts and admissions' pending before other courts and order its consolidation if warranted;
"' I'. • • : . •

on the genuineness and due execution of the documents marked as · c) Inquire if the pleadings are in order, If not, order the amend-
exhibits. The proceedings during the preliminary conference shall be ments if necessary; ,
recorded in the "Minutes of Preliminary Conference" to be signed by
both parties and/or counsel. d) Inquire if interlocutory issues are involved and resolve the
same; . ., , , , . . .

176
177
----------.Jlll=l i~~. ~·-111~r11...-u1-......--u,-· •~---~-
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
e) Consider the adding or dropping of parties; ·
f) Scrutinize every single alleqation of the complaint, an~wer
and other pleadings and attachments thereto and the contents of
documents and all other evidence identified and pre-marked during
the pre-trial in determining further admissions of facts and documents.
To obtain admissions, the court shall ask the parties to submit the
depositions taken under Rule 23, the answers to written interrogatories
under Rule 25 and the answers to request for admissions by the adverse
party under Rule 26. It may also require the production of documents
or things requested by a party under Rule 27 and the results of the
physical and mental examination of persons under Rule 28;
g) Define and simplify the factual and legal issues · arising from
the pleadings. Uncontroverted issues and frivolous claims or defenses
should be eliminated. For each factual issue, the parties/counsel shall
state all the evidence to support their positions thereon. For each
legal issue, the parties/counsel shall state the applicable law and juris-
prudence supporting their respective positions thereon. If only legal
issues are presented, the judge shall require the parties to submit their
respective memoranda and the court can proceed to render judgment;
h) Determine the propriety of rendering a summary judgment
dismissing the case based on the disclosures made at the pre-trial or a
judgment based on the pleadings, evidence identified and admissions
made during the pre-trial;
i) Ask the parties to agree on the specific trial dates for con-
tinuous trial in accordance with Circular No. 1-89 dated Jan. 19, 1989;
adhere to the case flow chart determined by the court, which shall
contain the different stages of the proceedings up to the promulgation
of the decision and use the time frame for each stage in setting the trial
dates. The One-Day Examination of Witness Rule, that is, a witness
has to be fully examined in one day only, shall be strictly adhered
to subject to the court's discretion during trial on whether or not to
extend the direct and/or cross-examination for justifiable reasons. On
the last hearing day allotted for each party, he is required to make his
formal offer of evidence after the presentation of his last witness and
the opposing party is required to immediately interpose his objection
thereto. Thereafter, the Judge shall make the ruling on the offer of
evidence in open court. However, the judge has the discretion to allow
the offer of evidence in writing in conformity with Section 35, Rule 132;
178
-·-u~_Juc:::::UU~IJ.t:::::::::=i'Ul~-UJ~JJ,_~.J.u~· -·-··--.
RULE·18- PRE-TRIAL
j) Determine the most important witnesses to be heard and
limit the number of witn~sses (Most Important Witness Rule). The facts
to be proven by each witness and the approximate number of hours per
witness shall be fixed; · ·.
k) At his discretion, orderthe parties to use the affidavits of
witnesses as direct testimonies subject to the right to object to inadmis-
sible portions thereof anoto the right of cross-examination by the
other party. The affidavits shall be based on personal knowledge, shall
set forth facts as would 'be admissible in evidence and shall show
affirmatively that the affiant is competent to testify to the matters stated
therein. The affidavits shall be in question and answer form, and shall
comply with.the rules on admissibility of evidence;
I) · Require the parties and/or counsel to submit to the Branch
Clerk of Court the names, addresses, and contact numbers· of the
witnesses· to be summoned-by subpoena;
m) Order the delegation of the reception of evidence to the
Branch Clerk of Court under Rule 30; and
n) Refer the case to a trial by commissioner under Rule 32.
(A.M. No. 03-1-09-SC, which took effect on Aug. 16, 2004.)
24. What Is a pre-trial order, and what Is its use?
A pre-trial order is issued by the court after the termination of the
pre-trial, reciting in detail the matters taken up at the pre-trial confer-
ence, the action taken thereon, the amendments allowed to the plead-
ings, the agreements or admissions made by the parties as to any of
the matters considered, and explicitly defining and limiting the issues
to be tried.
The contents of the pre-trial order shall control the subsequent
course of the action. (Rufe 18, Sec. 7.)
The trial shall be limited to the issues stated in the pre-trial order.
(Rule 30, Sec. 5.)
A.M. No. 03-1-09-SC, which ·took effect on August 16, 2004,
Provides that the judge shall issue the required Pre-trial Order within
10 days after the termination of the pre-trial. Said Order shall bind the
Parties, limit the trial to matters not disposed of, and control the course
of the action during the trial.
179
 QUESTIONS AND ANSWERS IN . ·I ". , .
REMEDIAL LAW

25. At the pre-trial conference, the court ordered the plaintiff

and the defendant to submit a compromise agreement within a 10-
:·,
day period. Because the parties did not submit any compromise
agreement, the court dismissed the case. Is the dismissal correct? 'RULE19
No the dismissal is not correct. There is nothing in the Rules of
Court that imposes the sanction of dismissal for failure of the parties to INTERVENTION
submit a compromise agreement. This error of the court is assailable by.
certiorari. (Ruiz, Jr. v. CA, G.R. No. 101566, Aug. 17, 1992 [212 SCRA
660].) 1. Who may intervene in an action?

26. May there be a second pre-trial. A person who: (a) has a legal interest in the matter in l_itigation;
. ,. :l (b) has a legal interest in thesuccess of either of the parties; (c) has an
No. A second pre-trial is void as the Rules of Court does, not, interest against both; or (d) is so situated as to be adversely affected by
authorize the court to conduct a second pre-trial. However, if a second a distribution or other disposition of property in the custody of the court
pre-trial is held with the consent or acquiescence of both parties, .the or of an officer thereof, may, by leave of court, intervene in an action.
validity thereof cannot be challenged. (Young v. CA, G.R. No. 81239, (Rule 19, Sec.' 1.) '. .
Dec. 4, 1991.) · · ·
2. . "Yhat are the requlsites of intervention?
The following are the requisltesof intervention:
a) a
the intervenor has legal interest in the matter in litigation;
or has a legal interest in the successot either of the parties; or has an
interest against both; or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or
1, • t'
( . of an officer thereof;
b) the intervention will not unduly delay or prejudice the adju-.
dication of the rights of the orig!na! parties; and
. .' .
i , • I

c) intervenor's rights may not be fully.protected in a separate .

proceeding. (Rule 19, Sec. 1.)

3. How may a person intervene in an action?

By filing a motion for ieave to intervene. A c~py of the pleading-in-
' - . ;~ intervention must already be attached to the motion.and served on the
original parties. (Rule ~9, Secs. 1 end, 2.) · ..
A person whose motion for leave to ~n~ervene is denied _b~- th~:
court has no standing to question the decislon of the court. (F,oster-
Gal/ego v. Galang, G_.R. No. 130228, July 27, 2004) · · · .
1

180 181
 QUESTIONS AN ANSWERS IN RULE 19 ...:. INTERVENTION
REMEDIAL LAW

4. lntervontlon Is always with leavo of court. Whon may tho
court rofuse to grant lenvo to Intervene?
a) The court may refuse to grant leave - If lnterventlon will
unduly delay or prejudice the adjudication of the rights of the orlglnal
parties: or
b) if intervenor's rights may be fully protected In a separate
proceedings. (Rule 19, Sec. 1.)
5. What are the pleadlngs-ln-lnterventlon?
They are- : •. ,
a) complaint-in-intervention if the intervenor asserts a claim
against either or all of the original parties; and ' ' '. r .
b) answer-in-intervention if the intervenor unites with the de-
fending party in resisting the claim of the plaintiff. (Rule'19, Sec. 3.) · ·
6. Suppose the trial court has already rendered Judgment,
and the case Is now on appeal, may intervention be still allowed?
No more, because the time to intervene is at any time before -
not after- rendition of judgment by the trial court. (Rule 19, Sec. 2.)
alloglng that they are among the Filipino citizens taxpayers and
members of the Philippine Bar for whom the class sult was Instituted
by Gonzales. They thus prayed that they be substituted In lieu of
Gonzales. Is substitution the proper remedy?
No, substitution Is not the property remedy. It must be noted that
Gonzales's alleged· interest does not Involve any claim to money or
property which he could have assigned to another or transmitted to
his heirs. Rather, he claimedto be vindicating his rights as a citizen,
taxpayer and member of the bar. Being personal and non-transferable
in nature, any interest that he might have had in the outcome of this case
cannot be deemed to have survived his death. On the other hand, Attys.
lmbong ancl ·lmbong are not asserting any right or interest transmitted
tothem by the death of Gonzales for there were none, but are seeking
to protect-their own individual interests as members of the class alleged
to have been represented by Gonzales. Their remedy, therefore, is not
a motion for substitution, but a motion for intervention. (Gonzales v.
PAGCOR, et al., G.R. No. 144891, May 27, 2004.)

7. Is Intervention allowed In a land registration case?

No, intervention is not allowed in a land registration case. A party
wishing to be heard may simply file his opposition to the application
for registration. But if there is already an order of general default, he
should ask for the lifting of the said order, and if lifted, file an opposition
to the application for registration. This is so because proceedings in
land registration are in rem and not in personam, the sole object of
which being the registration applied for, not the determination of any
right connected with the registration. (Do/fo v. Register of Deeds for the
Province of Cavite, et et., G.R. No. 133465, Sept. 25, 2000.)

8. On September 28, 2000, Gonzales, as a citizen, taxpayer

and member of the Philippine Bar, filed an action for prohibition,
as a class suit. seeking to restrain PAGCOR from continuing Its
operation and from granting franchises to SAGE, BEST WORLD, and
other entitles. On January 17, 2002, Gonzales died. On September
10, 2002, Attys. lmbong and lmbong filed a Motion for Substitution,

182
183
 RULE 20 RULE21

CALENDAR OF CASES suepoENA

1. Who keeps the calendar for cases?
The clerk of court, under the direct supervision'of the judge, shall
keep a calendar 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. (Rule 20, Sec. 1.)
2. How is assignment of cases to different branches of ·a
court done?
It is done exclusivelyby raffle. (Rule 20, Sec. 2.)
{ What is a subpoena7 What are the kinds of subpoena?
A subpoena is a processdirected to a person requiring him to
· attend and testify at the hearing or the trial of an action, or at any
investigation conducted by competentauthority, or the taking of his
·deposition.
It is called a subpoena ad testificandum (or simply subpoena)
if it requires the person to whom it is directed to attend and testify.
If it requires him to b_ringwith him any books,documents,or other things
under his control, it is called a subpoena duces tecum. (Rule 21, Sec.
1.)

2. Wha~, ~ie the gr_ounds for quashing a subpoena?

If what is to be quashedis a subpoenaduces tecum, the following
are the grounds:
a) the subpoena is unreasonableand oppressive;
b) the relevancy of the books, documents,or things does not
appear;
· c) the person in whose behalf the subpoena is issued fails to
advance the reasonable cost of the productionthereof;and
d) . the witness fees and kilometrageallowedby the rules were
not tendered when the subpoenawas served.
If what is to be quashed is a subpoena ad testificandum, the
following are the grounds: .
a) the witness i; not bound by the subpoena;or
b) the witness fees and kilometrageallowedby the rules were
not tendered when the subpoenawas served. (Rule 21, Sec. 4.)

184 185

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
3. What are the instances when a witness is not bound by
the subpoena?
The following:
a) the witness resides more than 100 kilometers from his
residence to the place where he is to testify by the ordinary course of
travel;
b) the witness is a detention prisoner - if no permission of the
court in which his case is pending was obtained; and
c) the witness is a prisoner sentenced to death, reclusion
perpetua, or life imprisonment and is confined in a penal institution - if
the authority of the Supreme Court to bring out the prisoner has not
been obtained. (Rule 21, Secs. 1 and 10.)
4. How may a subpoena be served? · · ·-
. Subpoena may be served in the same manner as personal or
substituted service of summons is made. The original shall be exhibited
and a copy thereof delivered to the person on whom it is served,
tendering to him the fees for one day's attendance and the kilometrage
allowed by the rules. But the tender need not be made when the sub-
poena is issued by or on behalf of the Republic of the Philippines or an
officer or agency thereof. (Rule 21, Sec. 6.)
5. May a person present .in. court be required to' testify
although he is not served with a subpoena? .
Yes. A person present in court may be required to testify although
not served with a subpoena, in which event it is as if he were in atten-
dance upon a subpoena issued by such court. (Rule ~1,_Sec. ].), .: _ .. ,,.
6. What are the consequences of disobedience to a sub-
poena?
The following are the consequences: . ~
a) The person who disobeys a subpoena duly served may be
arrested and brought before the court where his attendance is required;
and
b) He may also be cited in contempt. (Rule 21, Secs. 8 and 9.)
186
·-------·-·---··--u---·...._.m
I
RULE.2,1 ...:... SUBPOENA
7. What is the vlatoryright of a witness?
The viatory right is the right of a witness not to be compelled by
subpoena _to attend the court hearingin a civil case if he resides more
than 100 kilometer~ from his residenceto the placewhere he is to testify
by the ordinary course of travel. (Rule 21, Sec. 1 O.)
This viatory right is not availableto a witness in criminal cases.
.(People v. Montejo, G.R. ~o· 1:-.~~4154, Oct. 31, 1967.)
8. If a witness invokeshis viatory right in a civil case, is
there a way to compel him to givetestimony?
Yes. And the way to do. it is to take his deposition in a place not
more than 100 kilometersfrom where he resides.The party who desires
to take the deposition of the witness must observethe following steps:
First, the party desiringto.take the depositionof the witness shall
give reasonable notice in writing to every other party to the action. The
notice shall state the time and placefor the taking of the deposition and
the name and address of the person whose deposition is to be taken.
There should be proof of service.?~ the notice;
. . Second, the proof of service of the noticeto take deposition ~~all
be presented to the clerk of the court of the placewhere the deposition
is to be taken;
Third on the basis of such proof of service, the clerk, upon the
authority and under the seal of the court, shall is~uethe subpoena, but
a subpoena duces tecum m'ay not be issued without an order of th~
court;
Fourth, the sucpoena shall be served on t~e witness whose
deposition is to be taken. (Rule 21, Sec.·5; Rule·23, Secs.-15 and 25~
• ~ • "' \ • • j
1·
' , .... ".
187
 RULE 22 - COMPUTATIOfll OF TIME

A.M. ~o. 00-2:14-SC, Feb. 29, 2000, provides, among other

things, that if the period to file a ple;:3ding or a moUon ls extended ipso
jure to th".3 n~xt working day immediately folloNing where the last day
RULE 22 of the period is a Satufday, Sunday, or a legal holiday. and a motion for
extension of lime is filed and granted, any extension of time to file the
COMPUTATION OF TIME required pleading or motion should be counted from the expiration of
the period regardless of the fact that said due date is a Saturday. Sun-
1. In the computation of the period for filing of pleadings, day, or legal holiday. As held in dela Cruz v. Maersl< Filipinas Crewing.
motions, or other papers, if the last day of the period falls on a lnc., et el., G.R. No. 172038, April 14, 2008, the motion for e;(tension
Saturday, a Sunday, or a legal holiday, when shall such pleadings, itself may be filed on the next working day, not on the due date itself.
motions, or other papers be filed? (Montajes v. People, G.R. No. 183449, March 12. 2012.)

It should be filed on the next working day. 2. Is the rule on computation of time prescribed by the 1997
If the last day of the period falls on a Saturday, a Sunday, or a Rules of Civil Procedure applicable to prescription of offenses?
legal holiday in the place where the court sits, the time shall not run until No. Thus, if the offense, being a light felony, prescribes in 60 days,
the next working day. Thus, the last d.aY. to file the pleading shall be on the information or complaint must be filed on or berore the 60th day of
the next working day. (Rule 32, Sec. 1.) the prescriptive period. In Yapdiangco v. Buencamino, et al .• G.R. No.
In Leynes v, CA, et al., G.R. No. 154462, Jan. 19, 2011, the 10- L-28841, June 24, 1983, the issue raised is: "lf the last day in the period
day period for Spouses Leynes (defendants in the case for forcible of prescription of a felony falls on a Sunday or legal holiday. may the
entry before the MTG) to file their Answer expired on May 20, 2000 (a information be filed on the next working day?'" Resolving the issue. the
Saturday). They filed their answer on May 22, 2000. The MTC declared High Tribunal said: "Where the sixtieth and last day to file· an information
Spouses Leynes in default and rendered its Judgment on May 29, falls on a Sunday or legal holiday, the sixty-day period cannot be
2000, because, according to the MTC, they had only up to May 20, extended up to the next working day. Prescription has automatically set
2000 to file their Answer, and although May 20, 2000 was a Saturday, in;" (RUA's opinion: The rule laid down in Yapdiangco applies likewise
the court was open and court personnel were present at that time to to prescription of causes of action in civil cases.)
receive cases and motions filed with the court. HELD: The MTC should
not have rendered an ex parte judgment against them. Section 1, Rule
22 states: "In computing any period of time prescribed or allowed by
these Rules, or by order of the court, or by any applicable statute, the
day of the act or event from which the designated period of time begins
to run is to be excluded and the date of performance included. If the
last day of the period, as thus computed, falls on a Saturday, a Sunday,
or a legal holiday in the place where the court sits, the time shall not
run until the next working day." Thus, Saturdays, Sundays, and legal
holidays are excluded from the counting of the period only when the
last day of the period falls on such days. SC Adm. Circular No. 2-99,
which took effect on February 1, 1999, requires certain trial court judges
and employees lo be present on Saturdays uprimarily to act on petitions
for bail and other urgent matters." An answer cannot be considered as
among such urgent matters.

188 189

. I
---------.tmli-11:;oil U.U.StffllW.........,.~--,, -·

RULES 23, 24, 25 26 27 28

' ' ' ' and 29 - MODES OF DISCOVERY

b) In the former the d ..

h II be taken before an 'offi . ~pos1t1on upon written interrogatories
s a . teer: in the latter, the adverse party without
appearing before
. . an officer , sh a 11 s1mp
· I y answer ·in writing
· . ' under
and
oath the written interrogatories served upon him by the other party.
RULES 23, 24, 25, 26, 27, 28, and 29 (Rule 24, Sec. 25; Rule 25, Sec. 1.)

MODES OF DISCOVERY 4. Is leav~ of court necessary so that a party may avail

himself of the various modes of discovery?
1. What are the modes of discovery? . A party ~ay a~ail himself of: (a) deposition [whether by oral exam-
ination or written interrogatories] under Rule 23; (b) interrogatories
The following:
to parties under Rule 25; and (c) requests for admission under Rule
a) Deposition pending action (Rule 23); 26, without leave of court after an answer to the complaint has been
b) Deposition before action or pending appeal (Rule 24); served. It is only when an answer has not yet been filed (but after the
court has obtained jurisdiction over the defendant or property subject
c) Interrogatories to parties (Rule 25);
of the action) that prior leave of court is needed to avail of these modes
d) Request for admission by adverse party (Rule 26); of discovery, the reason being that at that time the issues are not yet
e) Production or inspection of documents or things (Rule 27); joined and the disputed facts are not clear.
and On the other hand, leave of court is required as regards discovery
f) Physical and mental examination of persons (Rule 28).
by: (a) production and inspection of documents or things in accord-
What are the purposes of the various modes of disco- ance with Rule 27; and (b) physical and mental examination of persons
2.
under Rule 28, which may be granted upon due application. and a
very?
showing of due cause. (Republic v. Sandiganbayan, G.R. No. 90478,
The various modes of discovery are meant to serve: a) as a
Nov. 21, 1991.) :
device, along with the pre-trial hearing under Rule 18, to narrow and
clarify the basic issues between the parties; and b) as a device for Note that Rule 23 and Rule 25 do not provide for any time frame
ascertaining the facts relative to those issues. The evident purpose is within which modes of discovery can be utilized, other than by stating
to enable the parties, consistent with recognized privileges, to obtain that the same should be availed of with leave of court after jurisdiction
the fullest possible knowledge of the issues and facts before civil trials has been obtained over the defendant, or without such leave after an
and thus prevent that said trials are carried on in the dark. (Republic v. answer has been served. (Producers Bank of the Philippines v. CA, et
Sandiganbayan, G.R. No. 90478, Nov. 21, 1991.) al., G.R. No. 110495, Jan. 29, 1998.)

3. As explained below, deposition may be taken upon oral Section 1. Rule 23 provides that a deposition pending a~tion may
examination or upon written interrogatories. What are the distinc- be taken with leave of court after jurisdiction has. been obtaine? over
tions between "Deposition Upon Written Interrogatories" and any defendant or over property which is the subject of the action; or
"Interrogatories to Parties"? without such leave, after an answer has been served. .

The following are the distinctions: iti ay be taken at any time after the institution of
Th us, d epost ion m · 1 h
any action, whenever necessary or convenient. Th_ere 1~ no ru ~ ~ at
a) In the former, any person, whether party to the case or not,
limits deposition-taking only to the period of pre-trial o~ before it; no
may be compelled to give deposition upon written interrogatories; in
prohibition against the taking of depositions after pre-tnal. fThere ~n
the latter, only the adverse party may be required to answer the written
be no valid objection to allowing.them during the process o execu mg
interrogatories served upon him by the other party; or

191
190

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
final and executory judgments, when the material Issues of fact have
become numerous or complicated. (Jonathan Landoil lntemational,
Co., Inc. v. Mangudadatu. G.R. No. 155010, Aug.16, 2004.)
But under A.M. No. 03-1-09-SC (which took effect on Aug. 16,
2004), the court shall, within one day from receipt of the complaint,
issue an order requiring the parties to avail of interrogatories to parties
under Rule 25 and request for admission by adverse party under Rule
26 or at their discretion make use of deposition under Rule 23 or other
measures under Rules 27 and 28 within five days from the filing of
the answer. A copy of the order shall be served upon the defendant
together with the summons and upon the plaintiff.
5. What Is the field of inquiry that may be covered by depo-
sitions or interrogatories?
The field of inquiry that may be covered by depositions or inter-
rogatories is as broad as when the interrogated party is called as a
witness to testify orally at the trial. The inquiry extends to all facts which
are relevant, whether they are ultimate or evidentiary, excepting only
those matters which are privileged. (Republic v. Sandiganbayan, G.R.
No. 90478, Nov. 21, 1991.)
6. How may deposition be taken?
It may be taken on oral examination or upon written interroga-
tories. (Rule 23, Secs. 15 and 25.)
Depositions pending action may be conducted by oral examina-
tion or written interrogatories, and may be taken at the instance of any
party, with or without leave of court. Leave of court is not necessary to
take a deposition after an answer to the complaint has been served. It
is only when an answer has not yet been filed (but jurisdiction has been
obtained over any defendant or over property subject of the action) that
prior leave of court is required. The reason for this is that before filing of
the answer, the issues are not yet joined and the disputed facts are not
dear. (Republic of the Philippines v. Sandiganbayan, et al., G.R. No.
112710, May 30, 2001.)
7. What Is the distinction betweendeposition de bene esse
and deposition In perpetuam rel memoriam.
Deposition de bene esse is taken for purposes of a pending action,
while deposition In perpetuam rel memoriam is taken to perpetuate
192
RULES 23, 24, 25 26 2J 28
' ' ' ' and 29 - MODES OF DISCOVERY
testimony for purposes of an anUci ate .
in case of appeal. (Rules 23 and
2 J)
d action or further proceedings
e. May a deposition be used as evidence?
If the deposition is that of a party th . .
Id Ilk 9 · . . . • e opposing party can use ,t as
ev ence proving his claim (if he is the plaintrff) or his defense (if he
Is the defendant). It .may also be used for impeaching or contradicting
the party-deponent if he testifies. In other words, the deposition of a
party can be used by the opposing party for any purpose.
If the deponent ~s only a witness but not a party, his deposition
cannot be used as evidence. The deposition of a witness who is not a
party can be used only for impeaching or contradicting his testimony.
. Thus, the ~eposition of a deponent who is not a party but who is
available to testify, offered during a trial to prove the facts therein set
.. out, in lieu of the actual oral testimony of the deponent in open court,
may be opposed and excluded on the ground that it is hearsay.
But under any of the five exceptions stated in Section 4. Rule
23, depositions may be used without the deponent being called to the
witness stand by the proponent The five exceptions are: (a) that the
witness is dead; (b) that the witness resides at a distance more than
100 kilometers from the place of trial or hearing, or is out of the Philip-
pines, unless it appears that his absence was procured by the party
offering the deposition; (c) that the witness is unable to attend or testify
because of age, sickness, infirmity. or imprisonment: or (d) that the
party offering the deposition has been unable to procure the attendance
of the witness by subpoena; (e) upon application and notice, that such
exceptional circumstances exist to allow the deposition to be used for
any purpose.
9. Against whom may a deposition be used?
Any part or all of a deposition, so far as admissible under the rules
of evidence, may be used against any party: (a) who was pres~nt at the
taking of the deposition; or (b) who was represent~ at the taking ~f_the
deposition; or (c) who had due notice of the taking of the deposition.
1
(Rule 23, Sec. 4.)
10, In a case between X and Y, X takes the deposition of W.
Is W already the witness of X?
193

QUESTIONS AND ANSWERS IN -, • J '
REMEDIAL LAW
No. A party shall not 'be deemed to make a person his own
. witness by taking his deposition. But if X. introduces -lrr evidence the
deposition of W for any purpose, other than that of contradicting him or
impeaching him, then W becomes his witness. If W takes the witness
stand as witness for Y, and X uses W's deposition for the purpose of
. contradicting W, then W does not become_the witness of X. (Rule 23,
._,S'!_CS. 7~nd 8.) . . - ·... : , .: . of justice, or other competent tribunal, to authorize a person to take
11. Before whommay deposltlcn be.taken?,.·
a) If within the Philippines, deposifion may be taken before
any judge; any notary public; or upon written stipulation of the parties,
before .afly person authorized to administer oaths; and.
b) If in a· foreign country, : deposition may be taken before a
secretary of embassy or legation, consul general, ..consul, vice consul,
. or; consular agent of the Republic . of . the Philippines, or before such
person or officer as may be appointed by commission or under letters
roqatory; or upon written stipu.latio.n. pf the parties, before any person
authorized to administer oaths. (R_ule.23, Secs. 11, 12, and 14.)
12. In a criminal action, maythe testimonial examination of
a prosecution witness, who is. outside .the Philippines or who Is
too sick to attend the trial, be taken upon a deposition pursuant
to Rule 23 of the Rules of Court?
No.
In Go, et al. v. People of the Philippines, et al., G.R. No. 185527,
July 18, 2012, it was held that in criminal pases where the witness is
too sick or infirm to attend the trial or has to leave the Philippines with
no definite date of returning, his 'cc,n.ditional "examination may be. taken
before t~e court where the case lspendinq as required by Section 15,
· Rule 119. . . -.,. ·., , . . ~. ,. ·
· · · :, Take note; however, that under Sections ·12 and 13, Rule 119
where adefense witness:·(a) is sick at infirm as to afford reasonable
: ground. for .believing that-he will not be able to attend the trial; (b)
: resides more than .100 kilometers from: the place of. trial and· has no
means to attend the same; or (c) other similar circumstances exist that
.would make him unavailable or prevent him from attendinq the trial, he
· -~ay be conditionally examined upon motion qt the accused with nonce
to the other parties. The examination of this defense witness may ·be
194
RULES 23, 24 25 26 27 28
' ' ' ' . • ~~~ _29 ~ MODES OF DISCOVERY
•I~ ~ I •~ •
:- made before a j~dg~. It may· also be made before a member of the
Bar or before an inferior court so designated in an order. issued for that
- purpose. ,
13. What is a commission?__: letters rogatory?
A commission may be defined as an instrument issued by a court
depositions, or do any other act by authority of such court or tribunal..
(Dasmariflas Garments, Inc. v. Reyes, et" al., G.R. No. 108229, Aug.
24, 1993, citing Feria, J., Civil Procedure, 415 {1969) which in tum cites
Cyclopedic Law Dictionary, 200.) . .: ,·.. ..
A commission is addressed to officers designated either by nanie
or descriptive title; while letters rogatory are addressed to a .judicial
authority in a foreign country. (Rule 23, Sec. 12.) , .· ·
Letters rogatory may be defined as· an instrument sent in the name
arid by the authority of a judge or court to another, requesting the latter
to cause to be examined, upon Interrogatories filed in a cause pending
before the former, a witness who is within the jurisdiction_ of the judge
or court to whom such letters are addressed. (Dasmariflas Garments,
Inc. v. Reyes, et al., G.R. No. 108229, Aug. 24, 1993,· citfng Feria, J.,
Civil Procedure, 415 [1969) which in tum cftes Cyclopedic Law Diction-
ary, 200.) ·
Letters rogatory may be applied for and issued only after a com-
mission has been returned unexecuted. (Dasmariflas Garments, Inc. v.
Reyes, et al., G.R. No. 108229,Aug. 24, 1993.).
· 14. What Is the effect. ~f failure to serve: (a) w~l~n lnter-
roga~ories?- (b) request for ~dmisslon? · · . , , , :,
. A party not served with written interrogatories may not . be
compelled by the adverse party to give testimony in open court or to
give deposition pending appeal, unless allowed by the court for good
cause shown and to prevent a,(ailure of justice. (Rule 25, Sec. f!.) . _.
A party who fails to file and se_rve a· reques~ for ad~lssion _on
the adverse party of material and relevant facts at .,ssue ~h1ch are, or
ought to be; within the personal knowledg~ of the latter, s.hall not be
Permitted to present evidence on such facts, unless 0t~~isef ~llo~ed
by the court for good cause'shown and to p_revent ~ ~~- ure O JU~ \ce.
(Rule 26, Sec. 5.) ·· '
• 195
 QUESTIONS AND ANSWERS IN RULES 23, 24, 25, 26, 27, 28, and 29 - MODES OF DISCOVERY
REMEDIAL LAW

15. What is the effect of a party's failure to respond to a
request for admission made upon _him by the other party?
His failure to respond creates implied 'admissions. The rule is:
Each of the matters of which an admissionis requestedshall be deemed
. admitted unless, within a period designated in the request, which shall
not be less than 15 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
cannot truthfully either admit or deny those matters. (Rule 26, Sec. ·2.)
No, it is not a proper requestfor admission. In Po v. CA, et al.,
G.R. No. L-34341: Aug. 22, 1988,it was held that a party should not be
compelled to admit mattersof fact alreadyadmittedby his pleading and
concerning which there is no issue, nor should he be required to make
a second denial of those alreadydenied in his answer to the complaint.
A request for admission is not intendedto merely reproduce or reiterate
the allegations of the requestingparty's pleading, but should set forth
relevant evidentiary matters of fact, or documents described in and
exhibited with the request, whose purpose is to establish said party's
cause of action or defense. (Laflada v. CA, et al., G.R. No. 102390,
Feb. 1, 2002.)

16. May the counsel of a party to whom a written request for 18. What are the consequences of a party's refusal to '·
I•
;,,

admission is addressed under Section 1, Ru1e··25 ofthe Rules· of comply with modes of discovery?
Court, answer such request for.his, clhmt?. The following are the consequences:
Section 2, Rule 26 provides, in part: "Each of the matters of which a) the pleadingof the disobedientparty may be ordered stricken
an admission is requested shall be deemed admitted unless, within-a out;
period designated in the request, which shall not be less than fifteen b) the action may be dismissed,if the disobedient party is the
(15) days after service thereof, or within such further time as the court plaintiff;
may allow on motion, the party to whom the request is directed files
and serves upon the party requestingtheadmlsslona sworn statement c) a judgment by default may be rendered, if the disobedient
either denying specifically the matters of which admission is requested party is the defendant; ·
or setting forth in detail the reasons why he cannot truthfully either admit d) his refusal to be sworn or to answer at or during the taking of
or deny those matters." hlsdeposition may be considereda contemptof court; and
In Leneae v. CA, et al., G.R. No. 102390, Feb. 1, 2002, where e) the arrest of disobedient party may be ordered. But if the
the same issue was raised, it was held that an answer to a request 'order disobeyed is an order to submit to a physical or mental exam-
for admission signed and sworn to. by the counsel of the party.so ination, the disobedient party cannot be ordered arrested. (Rule 29,
requested is sufficient compliance with the provisions of Rule·26 of:the -~i~ ' .
Rules of Court. According to the Supreme Court, the phrase "the party
to whom the request is directed ... " in Section 2 of Rule 26 should )
not be restrictively construed to mean that a party may not engage the
services of counsel to make the response in his behalf. ·

17. P sued D. D had already filed an answer to P's complaint. ~I • l

.
..• J.
After receipt of D's answer, P served on him a request for the
admission of the same facts alleged in P's complaint which D had .. '

already either admitted or denied in his answer .. Is this a proper "(. ,·

request for admission?

1_96 ·197

RULE 30
TRIAL
1. What Is the order of trial?
The following:
First, the plaintiff shall adduce evidence in support of his complaint;
Second, the defendant shall then adduce evidence in support of
his defense, counterclaim, cross-claim, and third-party complaint;
Third, the third-party defendant, if any, shall adduce evidence of
his defense, counterclaim, cross-claim, and fourth-party complaint;
Fourth, the fourth-party, and so forth, if any, shall adduce evidence
of the material facts pleaded by them;
Fifth, 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;
Sixth, 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
Seventh, 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.
(Rule 30, Sec. 5.)
2. What are the requisites of motion to postpone trial on
the ground of absence of evidence?
There must be an affidavit showing: (a) the materiality or rele-
vancy of such evidence; and (b) that due diligence has been used to
procure it.
But if the adverse party admits the facts to be given In evidence,
even if he objects or reserves the right to object to their admissibility,
the trial shall not be postponed. (Rule 30, Sec. 3.)
198
RULE 30 - TRIAL
I
.I
3. What are the requisites of motion to postpone trial on
ground of Illness of party or counsel?
It must appear upon affidavit that (a) the presence of such party or
counsel at the trial is indispensable; and (b) the character of his illness
Is such as to render his non-attendance excusable. (Rule 30, Sec. 4.)
4. The rule Is that the judge of the court in which the action
Is pending must personally receive the evidence to be adduced by
the parties. When may the court delegate the reception of evidence
to Its clerk of court?
The court may delegate the reception of evidence to its cierk of
court (who is a member of the bar) in: (a) default or ex parte hearings;
and (b) in any case in which the parties agree in writing. lf the cierk
of court is not a member of the bar, reception of evidence cannot be
delegated to him. (Rule 30, Sec. 9.)
5. May the parties to an action agree upon the facts In-
volved in the litigation and submit the case for judgment on the
facts agreed upon without introduction of evidence?
Yes, but such agreement must be in writing. And if the parties
agree only on some of the facts in issue, the trial shall be held as to the
disputed facts. (Rule 30, Sec. 6.)
But, judgment based on stipulation of facts is not allowed in the
following cases: (a) legal separation; (b) annulment of marriage; and (c)
declaration of nullity of marriage.
To summarize, in legal separation, annulment of marriage, and
declaration of nullity of marriage, there can be no judgment by default,
judgment on the pleadings, summary judgment, judgment upo~ conf~s-
sion, judgment upon compromise, and judgment based on stipulation
of facts.
6. Section 8, Rule 30 provides: "The suspension of actions
shall be governed by the provisions of the Civil Code." What are
the Instances In which clvll actions may be suspended as provided
for In the Clvll Code?
The following are the Instances:
a) If willingness to discuss a possible compromise is expres-
sed by one or both parties; or
199
 . ~r - ... ,,,-, ....... ,,,.Wfilln1•m•nr•mamw1u.,,,..,.w---.iiiii1.1~J1

QUESTIONS AND ANSWERS IN

I . ·.- ' . ,· -; ..
II
REMEDIAL LAW , . :i ~ \ ..... )

b) If it appears that one of the parties, before the commence- ' . ~ ... • I '·'I. , r·,
.
• J\•
t'J • •, f I

ment of the action or proceeding, offered to discuss a possible com- ; . '

promise but the other party refused the offer. (Civil Code, Art. 2030.)
RULE 31

CONSOLIDATION OR SEVERANCE
1. · What does·the rule authorize the court to doif two or
more actions pending before it involve' a common question of law
or fact? · I {
When actions involving a common question of law or fact are :Ji
I',· · pending before the court, it may order a joint hearing or trial of any ! ~
.' •,, (> or all the matters in issue in the actions; it may order all the actions
consolidated; and it may make such orders concerning proceedings II
therein as may tend to avoid unnecessary costs or delay. (Rule 31, I

Sec. 1.)
But, if the actions involve a common question of law or fact because
they arise from a single cause of action between the same parties, the
remedy is not consolidation but dismissal of one of the actions on the
ground of litis pendentia.

2. May consolidation be had if the cases,although present-

ing common questions of law or fact, are pending before different
courts?
: :I Yes. An example is a. civil action for the recovery of civil liability
arising from the offense charged. If the civil action is filed earlier than
the criminal action and trial in the civil action has not yet commenced,
, • I' I .. such civil action may be consolidated with the criminal action upon
application with the court trying the criminal action. (Rule 111, Sec. 1.)
The rule on consolidation applies to both civil and criminal cases.
(Cojuangco, et al. v. CA, et al., G.R. No. L-37404, Nov. 18, 1991.)
1 •

I .. ..... . 3. What is the purpose or object of consolidation of cases?

I,
The purpose or object of consolidation of cases is to avoid
multiplicity of suits, guard against oppression or ab~se, prevent delay,
. ) • ·,,1 t ,' I
clear congested dockets, simplify the work of th~ trial cou~, a~d sa~e
,· 14
unnecessary costs or expense; in short, the attainment of Justice with

200
201.·
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW ,. ..
'

the least expense and vexation to the parties litigants. (Cojuangco, et •:• ' • c. ~::- : .'

al. v. CA, et al., G.R. No. L-37404, Nov. 18, 1991.) -; .

4. For what reason may the court order separate trial of a RULE32. :-:
claim? .r :
-. ,
TRIAL_ BX COMMISSIONER
. ....

The court may order separate trial 'of ariy claim, cross-claim .
counterclaim,.or third-party complaint, or of any separate issue or of an;
~u~ber.of claims, cross-claims, counterclaims, thlrd-party complaint or
issues, m furtherance of convenience or to avoid prejudice. 'Rule 31 ' ( .. When' ril~y the co'uri' r~fe~ any or ~II issues in a ~~e -t~ a.-.
Sec. 2.) · · .I'. · -'· co~missioner? - · · · · -~ ·· · :· :--, __ -.
. ..r· . . x
In the following instances, the court may order any or all issues in
a case to be referred to a commissioner:
a) When the parties so agree in writing. The commissioner may
J··: either be agreed upon by the parties or to be appointed by the court.
b) When the parties do not consent, the court, on its own
motion or upon application by either party, may direct reference to a
commissioner in the following cases:
j' .. 1) the trial of an issue of fact requires examination of long
'I
,,·· account;
2) the taking of an account is necessary for the informa-
tion of the court before judgment, or for carrying a judgment or
order into effect; and
3) a question offact, 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. (Rule 32, Secs. 1 and 2.)
.. , . -.·
I, I
2. What does the word "commissioner'' include?
It includes a referee, an auditor, or an examiner. (Rule 32, Sec. 1.)
.. . . ,..
3. In what actions is reference to commissioners required
by the rules?
a) In expropriation proceedings under Rule 67. After the issu-
ance of the order of expropriation, the court shall appoint not more than
three commissioners to ascertain the just compensation for the property
sought to be expropriated.

202
203.
 --
QUESTIONS AND ANS\VERS IN
REMEDIAL LAW

b) In an action for partition under Rule 69. If after the order of

partition is issued by the court, the parties cannot agree on partition
the court shall appoint not more than three commissioners to make the RULE 33
partition.
DEMURRER TO EVIDENCE
4. Does the refusal of a witness to obey a subpoena issued
by the commissioner constitute contempt?
1. What is a demurrer to evidence?
Yes. The refusal of a witness to obey a subpoena issued by the
D~murrer to _Evidence is a motion to dismiss on the grour:id of
commissioner or to give evidence before him shall be deemed a con-
insufficiency of evidence and is filed after the plaintiff has rested his
tempt of the court that appointed the commissioner. (Rule 32, Sec. 7.)
case. (Condes v. CA, et al., G.R. No. 161304, July 27, 2007.)

2. Who may file a demurrer to evidence? - when? - and

on what ground?
Who? - the defendant may file a demurrer to evidence.
When? - after the plaintiff has completed the presentation of his
evidence (meaning, after plaintiff has rested his case).
Ground? - on the ground that upon the facts and the law,
plaintiff has shown no right to relief (meaning, insufficiency of plaintiffs
evidence). (Rule 33, Sec. 1.)

3. Must leave of court be first obtained before defendant

may file a demurrer to evidence?
In civil cases, there is no need to obtain prior leave of court -
unlike in criminal cases.

4. If defendant demurs to plaintiff's evidence, does the

defendant waive his right to present evidence?
No. By filing his demurrer to evid~nce, the defendan_t does not
waive his right to present his evidence in the event of denial thereof.
But if the motion is granted, but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to present
evidence. (Rule 33, Sec. 1.)

· 5. Is plaintiffs evidence the · only basis In resolving. a

) . demurrer. to evidence?
No. Section 1, Rule 33 provides, in part: "After the plaintiff has
completed the presentation of his evidence, the defendant may move

205
204

i I

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
for dismissalon the ground that upon the facts and the law the plal~tlff
has shown no right to relief. x x x" The wf acts" referred to in Section
a should include all the means sanctioned by the Ru.les of Cou~ In
ascertaining matters in judicial proceedings. These include _Judicial
admissions, matters of judicial notice, stipulations made during ~he
pretrial and trial, admissions, and presumptions, the only exclusion
being the defendant'sevidence. (Casent Realty Development Corp. v.
Philbanking Corp., G.R. No. 150731, Sept. 14, 2007.)
6. After the plaintiff had rested his case, the defendant filed
a demurrer to evidence.The RTC granted defendant's motion and
dismissed the case. Plaintiff appealedto the Court of Appeals. The
Court of Appeals reversed the RTC, but ordered that the records
of the case be remanded to the RTC for further proceedings. Is
the Court of Appeals correct in remanding the case to the RTC for
further proceedings?
No. The Court of Appeals should have rendered judgment solely
on the basis of plaintiffs evidence as required by Rule 33, Section 1. A
remandis not allowed by the Rules. (Radiowealth Finance Company v.
Del Rosario, G.R. No. 138739, July 6, 2000.)
7. Distinguish demurrer to evidence in civil cases and
demurrer to evidence in criminal cases.
The distinctionsare:
a) In both, the ground is insufficiencyof evidence;
b) In civil cases, the court may dismiss the action for insuffi-
ciency of evidence only upon motion of the. defendant; in crlrnina'
cases, the court may dismiss the case for insufficiency of evidence on
the court's own initiative after giving the prosecution the opportunity to
be heard or upon motion filed by the accused;
c) In civil cases, leave of court is not required for the filing of
demurrerto evidence. In criminal cases, the accused may file a demurrer
to evidencewith or without leave of court. If he files a demurrer with prior
leave of court but the demurrer is denied, he may adduce evidence for
.his defense. But if he files it without prior leave of court, he waives the
right to present evidence and submits the case for decision based on
the evidence presented by the prosecution; and . is sufficient, the accused may present evidence regarding both the
206
RULE 33 - DEMURRER TO EVIDENCE
d) In civil cases, if defendant'sdemurrer to evidence is granted
by the court, the case is dismissed but plaintiff may appeal from the
order of dismissal. In criminal cases, if the court grants the demurrer
to evidence filed by the accused, the case is also dismissed, but the
prosecution cannot appeal from the order of dismissal because such
appeal will place the accused in double jeopardy.
8. After the prosecution has rested its case in a criminal
action, the accused files a demurrer to evidence. In resolving
the demurrer to evidence, should the trial court likewise decide
the civil aspect of the case and determine the civil liability of the
accused?
a) The demurrer to evidenceis filed without leave of court:
When a demurrer to evidence is filed without leave of court, the
whole case is submitted for judgment on the basis of the evidence for
the prosecution as the accused is deemed to have waived his right to
present evidence. In this situation, the court is called upon to decide
the case including its civil aspect, unless the offended party has waived
the civil action, or has reserved his right to institute it separately, or has
instituted the civil action prior to the criminal action.
In case of conviction, the trial court should state in its judgment
the civil liability or damages to be recovered by the offended party from
the accused.
In case of acquittal, the accused may still be adjudged civilly
liable where: (a) the acquittal is based on r~asonab_l~ doubt; (b) t~~
court declares that the liability of the accused rs only civil; or (c) the civil
liability of the accused does not arise from or is not based upon the
crime of which the accused is acquitted.
But if the accused is acquitted and there is a finding in the final
judgment in the criminal action that the act or ~~issio_nfrom which the
civil liability may arise did not exist, then the c1v1I action based on the
delict is deemed extinguished.
b) The demurrer to evidence is filed with leave of court:
When the demurrer to evidence is filed with leave of court, ~nd
the court denies it because the evidence presented by the_ prosecution
criminal and civil aspect of the case.
207
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW

If the court grants the demurrer to evidence because the

evidence so far presented by the prosecution is insufficient as proof
beyond reasonable doubt, it does not follow that the same evidence
is insufficient to establish a preponderance of evidence. Thus, if the
court grants the demurrer, proceedings on the civil aspect of the case
shall proceed, except if the trial court finds that the act or omission from
which the civil liability may arise did not exist. (Hun Hyung Park v. Eung
Won Choi, G.R. No. 165496, Feb. 12, 2007.)
, • I
!··
RULE'34
JUDGMENT ON·THE PLEADINGS
1. What is the remedy of the plaintiff if defendant's answer
contains general denials of the material averrnents in his com-
plaint?
Since a general denial amountsto an admission,plaintiff may
move for judgment on the pleadings. Judgmenton the pleadings is
proper where the answerfails to tenderan issue, or it otherwiseadmits
the material allegationsof the adverseparty'spleading. (Rule34, Sec. I •
I
1.).
I 1
I
2. . Sued for payment of his indebtedness, defendant filed
an answer where he stated that plaintiff should wait until defendant
would be in a financial position to pay. If you were the plaintiff, what
remedy would you pursue?
If I were the plaintiff, I would file a motion for judgment on the
pleadings because the answer of the defendantdoes not tender an
issue. (Khov. Camacho, G.R. No. 82789, Nov. 21, 1991.)

3• Who may move f~r judgment on the pleadings?.

Only the plaintiff (plaintiff of the original complaint, o~ of the .
counterclaim or of the cross-claim, or of the third-partycomplaint)may
move for jud~ment on the pleadings.
The defending party cannot movefor judgmenton the pleadings.
1956.)
(Aurelio v. Baquiran, G.R. No. L-9316, Oct. 31• .
'1ntiff move for judgment on. the
4. When may the Pla
Pleadings?
d h'1~ answer the plaintiff may move ·
After the defendant h~s fil~ d dant's' answer fails to tender
for judgment on the pleading~ if e en terial allegationsof plaintiffs
an issue or it otherwise admits the ma
complain t. (Rule 34, Sec. 1.)
1

208 209
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
5. If defendant's answer does not tender an issue or it
admits the material allegations in plaintiff's complaint, may the trial
court motu proprio render judgment on the pleadings?
No, the trial court may not motu proprio render judgment on the
pleadings. Section 1, Rule 34 requires that it should be on motion of
the plaintiff.
6. When does an answer fail to tender an issue? And when
does it admit the material allegations in adverse party's pleading?
The answer fails to tender an issue if it does not comply with
the requirements of specific denial set out in Sections 8, 10, and 11 of ·
Rule 8.
And, it admits the material allegations of the adverse party's
pleadings where it expressly confesses the truthfulness thereof or,
where it omits to deal with them at all. (Vergara v. Sue/to, et al. v. G.R ..
No. 74766, Dec. 21, 1987.)
Thus, where the defendant, in his answer, makes a general denial
or a literal denial (negative pregnant), his answer fails to tender an
issue.
But where defendant's answer raises factual issues which have
to be ascertained at a hearing, plaintiff's motion for judgment on the
pleadings must be denied.
Where factual issues involving damages are raised in the answer,
it is not proper to render judgment on the pleadings because the issues
involving damages require presentation of evidence. (Hontiveros v.
RTC, G.R. No. 125465, June 9, 1999.)
7. In what actions is judgment on the pleadings
allowed?
It is not allowed in actions for: (a) declaration of nullity of marriage;
(b) annulment of marriage; (c) legal separation. In these actions, the
plaintiff is required to prove the material facts alleged in the complaint
regardless of whether defendant's answer tenders an issue. (Rule 34,
Sec. -1.)
210
J•
RULE 35
SUMMARY JUDGMENTS
1. What is a summary judgment? What is its object?
Summary judgment (or what is also referred to as "accelerated
judgment") is a device for weeding out sham claims or defenses at an
early stage of the litigation, thereby avoiding the expense and loss of
.· ' time involved in a trial. Its very object is to separate what is formal or
pretended in denial 'or averment from what is genuine and substantial,
so that only the latter may subject a suitor to the burden of trial. (Excelsa
Industries, Inc. v. CA, et al., G.R. No. 105455, Aug. 23, 1995; Estrada v.
Hon. Consolacion, et al., G.R. No. L-40948,June 29, 1976 [71 SCRA 523).)
2. Who may move for summary judgment? - when?
Either the plaintiff or defending party may move for summary
judgment.
a) If the movant is the plaintiff or claimant (of the original
complaint, or counterclaim, or cross-claim), he may file his motion for
summary judgment at any time after the pleading in answer to his claim
has been served - on the ground that although there is an apparent
issue, the same is sham or false. (Rule 35, Sec. 1.)
b) If the movant is the defending party, he may file his motion
for, summary judgment at any time before or after he files his answer -
not
on the ground.that plaintiff's claim against him is sham or false. (Rule
35, Sec. 2.)
Whether it is the plaintiff or the defendant _who move~ for summ~ry
judgment, the motion must be filed along with suppornna affidavits,
depositions, or admissions.
3. What is the - procedure to be followed . if a motion for
sum~ary judgment is filed:
a): Procedure if plaintiff is the movant:
211
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
1) After defendant has filed his answer, plaintiff files a·
motion for summary judgment, together with supporting affidavits,
depositions, or admissions. Plaintiff serves on the defendant a
copy of his motion at least 10 days before the date of hearing as
specified in the notice of hearing appended to the motion;
2) Defendant may serve on the plaintiff opposing affi-
davits, depositions, or admissions at least three days before the
date of hearing;
3) Court hears the motion; and
4) If after hearing, the court finds that defendant's ·
defenses or issues raised in his answer are sham or false and,
therefore, there is no genuine issue as to any material fact, it wiU...
render summary judgment for the plaintiff. But if the court finds -«,
otherwise, it will deny the motion, sets the case for pretrial and, ;
then, for trial on the merits. '
, •.• l ·.·
b) Procedure if defendant is the movant:
1) Before or after filing his answer, defendant files a
motion for summary judgment, together with supporting affidavits,
depositions, or admissions. He serves on the plaintiff a copy of his
motion at least 10 days before the date of the hearing as specified ..
in the notice of hearing appended to the motion;
2) Plaintiff may serve on the defendant opposing affida-
vits, depositions, or admissions at least three days before the date
of hearing;
3) Court hears the motion; and ·:,.
4) If after hearing, the court finds that plaintiffs claims ,
alleged in his complaint are sham or false and, therefore, there is ·
no genuine issue as to any material fact it will order the dismissal
of plaintiff's complaint. But if the court finds otherwise, it will deny '
the motion for summary judgment, order the defendant to file his
answer (if he has not filed an answer yet), sets the case for pretrlal.
and, then, for trial on the merits.
4. What is the meaning of "genuine issue?"
The term "genuine issue" means an issue of fact which calls for
the presentation of evidence as distinguished from an issue which is
212
RULE 35 - SUMMARY JUDGMENTS
sham, fictitious,. contrived,_ set up in bad faith, and patently unsubstan-
tial as to con~btute genuine issue for trial. The court can determine
this on the bas,~ of the ~leadings, admissions, documents, affidavits, or
counter-affidavits submitted by the parties to the court. The rule is that
the party who moves for summary judgment has the burden of dem-
onstrating clearly the absence of any genuine issue of fact. (Excelsa
ln~~stries, Inc. v. CA, et al., G.R. No. 105455, Aug. 23, 1995.)
. .
5. If the trial court renders a summary judgment, what
Is the remedy of the aggrievedparty against the summary judg-
ment? .
., The remedy of the aggrieved party is to appeal from the summary
judgment. Appeal is the remedy because a summary judgment is not
an interlocutory orderbut a final judgment within the meaning of Rule
41, Section 1. By rendering a summary judgment, the trial court finally
disposes of the pending action,. leaving nothing more to be done by
it with respect to the merits, thus putting an end to the litigation. (Paz
Mercado, etc. v. CA, G.R. No. L-44001, June 10, 1988.)
6. , May the trial court motu proprio render summary judg-
ment in a civil action?
No. The trial court cannot motu proprio decide that ~u~mary
jlJdgment in an action is in order. Under the applicable previsions of
Rule 35, the claimant or the defending party, as the _case may be, m~st
invoke the rule on summary judgment by filing a motion upon a show~ng
that there is' no genuine issue as to any material fact ', and the m~vmg
party is entitled to a judgment as a matter of law. (Pmeda v. Heirs of
Elfseo Guevara, et al., G.R. No. ~~3188, Feb. 14• 2007-)
7. 'ls an order denying a motion for summary judgment
appealable? · ·
.. . . I bl . The reason is that an order denying a
· · No, 1t rs not appea a e. .
motion 'for summary judgment is interlocutory. .
. ty of rendering a summary judgment is
If, however, the propne . urt refuses or declines to render
clear, plain, and patent, but the_ trial ~ nd certiorari will lie to correct
It, it acts with grave abus~ of ~1scret1on, a .
such grave abuse of discretion. · ·
213

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
8. May there be a partial summary judgment?
Yes. A partial summary judgment arises where a motion for
summary judgment is filed, but the trial court finds that judgment cannot
be rendered upon the whole case or for all the reliefs sought because
there are controverted facts, in which case trial shall be conducted on
such controverted facts. (Rule 35, Sec. 4.)
No appeal, however, may be taken from a partial summary
judgment because a partial summary judgment is interlocutory.
A partial summary judgment shall be taken together with the
judgment that the trial court may render in the entire case after trial
is conducted on the controverted facts. Hence, a partial summary
judgment cannot be enforced by execution if the entire case has not
been resolved yet. (Province of Pangasinan v. CA, G.R. No. 104266,
March 31, 1993.)
9. What are the distinctions between Judgment on the
pleadings and summary Judgment?
The following are the distinctions:
a) In judgment on the pleadings, there Is no genuine Issue
because the answer fails to tender an issue or otherwise admits the
material allegations in the complaint; while in summary judgment, there
is an apparent issue but it is sham, fictitious, or false as shown by
affidavits, depositions, or admissions;
b) Judgment on the pleadings is based exclusively on the
pleadings (meaning, the complaint and the answer); while summary
judgment is based not only on the pleadings but also on affidavits,
depositions, and admissions of the parties showing that, except as to
the amount of damages, there is no genuine issue;
c) In judgment on the pleadings, there must be an answer;
while in summary judgment, there may or may not be an answer;
d) Only the plaintiff may move for judgment on the pleadings;
while either the plaintiff or the defendant may move for summary
judgment; and
e) A motion for judgment on the pleadings is required to be
served on the adverse party at least three days before the date of
hearing; while a motion for summary judgment, at least 10 days before
the date of hearing.
214
RULE 35 - SUMMARYJUDGMENTS
Further explain~, a judgment on the pleadings is a judgment on
the facts as pleaded in the pleadings, while summary judgment is a
judgme~t ?n the facts as summarily proven by affidavits, depositions,
or admrssrons. As such, even if the answer tenders an issue - and
therefore a judg~ent on the pleadings is not proper - a summary
judgment may strll be rendered on plaintiff's motion if he can show (on
the basis of affidavits, depositions, or admissions) that the issues thus
tendered are not genuine, or they are sham, fictitious, contrived, set up
in bad faith, or patently unsubstantial. (Narra Integrated Corporation v.
CA, et al., G.R. No. 137915, Nov. 15, 2000.)
10. P sued D. Served with summons, D filed his answer
within the reglementary period. Later and with leave of court, D
flied a third-party complaint against T who, In due time, filed his
answer to the third-party complaint. Alleging that the Issue raised
In O's answer ls sham or false, P moved for summary judgment.
AJong with his motion, P submitted affidavits, depositions, and
admlS-slons to prove that the Issue Is sham. D opposed P's motion
for summary Judgment, arguing that a summary judgment may not
be rendered where there Is, In the same action, a pending third-
party complaint. Is D's argument tenable?
No, D's argument is not tenable. Summary judgment may be
rendered where the issue is shown to be sham or false even if there
is a pending thlrd·party complaint. P has no interest In the outcome of
the third-party complaint filed by D to obtain contribution, Indemnity,
subrogation, or other relief from third-party defendant T. Even if the
court renders a summary judgment, D can still prosecute his third-party
complaint against T. (Narra Integrated Corporation v. CA, et al., G.R.
No. 137915, Nov. 15, 2000.)
The same ruling applies if, in the problem pr~sente~, the motion
that p filed is a motion for judgment on the pleadings. ~ Judg~ent on
the pleadings may be rendered although there Is a pendrng thrrd-party
COmplaint. (PNB v. Utility Assurance and Surety Co., G.R. No. 39215,
Sept. 1, 1989 [177 SCRA 208].)
215
 RULE 36 - JUDGMENTS, FINAL ORDERS,
ANO ENTRY THEREOF

Is Intended~ ~mong othe~ things, to inform the parties of the reasons

for the declslon so that if any of them appeals, he can point out to
the app~llate ~urt the finding of facts or the rulings on points of law
with which he disagrees.The requirementis also an assurance to the
RULE 36 parties that, in ~eaching judgment,the judge did so through the process
of legal reasoning.
JUDGMENTS, FINAL ORDERS, Also, a decision is void if it does not have a resolutory or dis-
AND ENTRY THEREOF positive portion, because it is the dispositive portion of the decision
that determines and settles the rights of the parties and the questions
1. What are the requisites of a valid judgment (or final . presented in the action. (Velarde v. Social Justice Society, G.R. No.
159357, April 28, 2004, cffing Manalang v. Tuason de Richards, 104
order)?
Phil. 254.)
The following:
3. What is a memorandum decision?
a) It must be in writing;
A memorandum decision is a decisionwhich adopts by reference
b) It must be personallyand directly prepared by the judge;
the findings of fact and conclusionsof law containedin the decision of
c) It must state dearly and distinctly the facts and the law on an inferior tribunal. (Oil and Natural Gas Commission v. CA, G.R. No.
which it is based; 114323, July 23, 1998.)
d) It must be signed by the judge; and · A memorandum decision is allowed and is not violative of the
e) It must be filed with the derk of court. (Rule 36, Sec. -1.) · .· constitutional provision that a decisionshall contain the facts and the
. law upon which it is based. By its very nature,a memorandumdecision
The filing of the judgment or final order with the clerk of court is . may be rendered only by an appellatetribunal.
what constitutesrendition of judgment. (Estoya, et al. v. Singson, Adm.
Matter No. RTJ-91-758, Sept. 28, 1994, citing Regalado, Remedial Law · · · . 4. What is a sin perjuicio judgment? Is it valid?
Compendium, 368 [6th Rev. Ed., 1989).)
A sin perjuicio judgment is a judgmentwithout a statement of the
2. Among the requisites of a valid judgment is that it must . facts in support of its conclusionand is to be supplementedlater by the
state the facts and the law upon which it is based. If this requisite final judgment. (Dizon v. Judge Lopez, Adm. Matter No. RTJ-96-1338,
is not complied with, what is the effect of such non-compliance on -.Sept .. 5, 1997.)
the judgment? A sin perjuicio judgment is void because it fails to comply with
It renders the judgment void, a patent nullity. (Velarde v. Social the requisite of a valid judgment that it must state the facts and the law
Justice Society, G.R. No. 159357, April 28, 2004.) · upon which it is based.
In Yao v. CA, 344 SCRA 202, it was explained that the purpose of . Rule 36 provides: "In an action against several
5. 5ect ion 4, · • d t is proper:
the requirement is to comply with due process. The parties to a litigation . defendants the court may; when a severa1 JU g!11e~ . I

should be informed of how the case was decided, with an explanation , render Jud~me.nt against one or more of them,_ leaving ther~c:~ to
of the factual and legal reasons that led to the conclusions of the court. . eroceed against the others." When is several Judgment P P :
In People v. Bugarin, 273 SCRA 384, it was also explained that the
requirement that the decisions of courts must be in writing and that . A several judgment is proper onl~ ":'henthe lia:;1~ ~i:
0it :~i:
they must set forth the facts and the law upon which they are based (defendant) is clearly separable and distinctfrom th P

216 217

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
(co-defendants), such that the claims against each of them could have
been the subject of separate suits, and judgment for or against one
of them will not necessarily affect the other. Where a common cause
of action exists against the defendants, as in actions against solidary
debtors, a several judgment is not proper. (de Leon v. CA, et al., G.R.
No. 138884, June 6, 2002.)
It should, therefore, be understood that in several judgments,
there would be multiple periods of finality.
6. Ordinarily, a judgment is rendered only after trial. Are
there instances when there may be a judgment without trial?
Yes, and these are:
a) Judgment on the pleadings;
b) Summary judgment;
c) Judgment based on compromise;
d) Judgment based on stipulation of facts;
e) Judgment upon confession;
f) Order of dismissal which are considered adjudication of the
case upon the merits, as when the case is dismissed on non-suit under
Section 3 of Rule 17; and
I longer subject to change, revision, amendment, or reversal, and the
g) You might wish to add, judgment in a case governed by the
Revised Rule on Summary Procedure.
7. What is required of the Clerk of Court to do upon the
finality of the judgment or final order?
The clerk of court shall forthwith enter the judgment or .final
order in the book of entries of judgment. The date of the finality of the
judgment or final order shall be deemed to be the. date of its entry. (~~(e
36, Sec. 2.)
8. Judge "A" was the presiding judge of the Regional Trial
Court of Davao City, Branch 16. He was later transferred to another
Regional Trial Court but within the same judicial region. When he
was still the presiding judge of Branch 16, he heard the presentation
of the rebuttal and surrebuttal evidence of the parties. But, when the
case was submitted for decision, the presiding judge of Branch 16
218
RULE 36-JU
DGMENTS, FINAL ORDERS
AND ENTRY THEREOF '
was Judge "B" already.It was Jud .. ,,
motion for extension t fil ge B who acted on defendant's
as rendered about tho I e memorandum.But, the decision that
w ree months later was signed by Judge "A."
Defendant moved for reconsiderationof the d . . b t J d
"B" d · d th f ecrsron, u u ge
eme e mo ion. Defendantnow claims that the decision
rendered by Judge "A" is void. Is the defendantcorrect?
No, the defendant is not correct. The Supreme Court in ABC Davao
Auto Supply, Inc. v. CA, et al., G.R. No. 113296 sign~d
Jan 16 1 998 ruled that
1
1
for ~ judg~ent to be binding; it must be duly ~nd pr~mulgated
du~m.g !h~ mcu~bency of the judge whose signature appears thereon.
This rs rn l~ne with th~ Supreme Court's En Banc Resolution of February
10, 1983 implementing B.P. 129 which merely requires that the judge
who pens the decision is still an incumbent judge, i.e., in this case.. a
judge of the same court, albeit now assigned to a different branch, at
the time the decision was promulgated. Branches of the trial court are
not distinct and separate tribunals from each other. Jurisdiction does
not attach to the judge but to the court.
9. May a court still correct its judgment after it has become
final and executory?
A final and executory decision cannot be amended or corrected
except for clerical errors or mistakes. Such a definitive judgment is no
court loses jurisdiction over it, except to order its execution. (Times Transit
Credit Coop. Inc. v. NLRC, et al., G.R. No. 117105, March 2, 1999.)
1 O. In his complaint, plaintiff describedthe land the posses-
sion of which he sought to recover as Lot No. 1868. Defendant's
answer admitted the identity· of the land. Trial proceeded as to
other factual issues. In the judgment of the trial court, however,the
land was described as Lot No. 1898. Long after the judgment had
become final and executory,plaintiff movedfor the correction of the
description of the land from Lot No. 1898 to Lot ~o. 1868.May·the
judgment that is already final and executory be still corrected?
, · · . Yes. The correction sought is called a nunc protune amendment.
The error is merely clerical and typographical. ~ final and execut_ory
judgment may still be amended on.harmless clerical ~nd typograph1~al
error. The court may still amend a final an~ exec~tory JU~gme~~ to clarify
· an ambiguity caused by an omission or mistake in the d1spos1t1on o~ t~e
decision. (Baguio v. Bandai, G.R. No. 126442, Dec. 29,· 199B.)
· 219
 RULE 37 - NEWT
RIAL OR RECONSIDERATION

RULE 37
NEW TRIAL OR RECONSIDERATION ·
1. When may a party file a motion for new trial or a motion
for reconsideration of a judgment or final order?
A.party aggrieved by a judqrnentor final order may file a motion
Example is fai!~re
0 !
defendant to answer because he believes it is not
neNcess~ryt a,s eGreRis an ongoing negotiation for settlement. (Samonte
v. agwa , nc., . . No. 165544, Oct. 2, 2009.)
Excusable negligence must be one which ordinary diligence and
prudence could ~~t have guarded against. It must be imputable to the
party, because if imputable to counsel it is binding upon the client.
(Gomez v. Montalban, G.R. No. 174414, March 14, 2008.)
3. Mistakes of attorneys generally bind their clients. Errors
of the defense counsel In the conduct of the trial Is neither an error i:
of law nor an Irregularity upon which a motion for new trial may be
I!
I

for new trial or a motion for reconsideration within the period for taking i
presented. Are there exceptions?
an appeal. (Rule 37, Sec. 1.)
l
. Yes,· and these exceptions are the following: (1) the counsel's I
2. What are the grounds. for new trial (In civil cases)? mistake is so great and serious that the client Is prejudiced and denied
his day in court; or (2) the counsel Is guilty of gross negligence resulting 11
The following:
in the client's deprivation of liberty or property without due process of I
a) Fraud, accident, mistake, o'r excusable negligence which law. In these two Instances, the client Is not bound by his counsel's
ordinary prudence could not have guarded against and by reason of m stakes, and a new trial may be conducted. (Ceniza-Manantan v.
which the aggrieved party has probably been impaired in his rights; and People, G.R. No. 156248, Aug. 22, 2007.)
b) Newly discovered evidence, which the aggrieved party could
not, with reasonable diligence, have. discovered and produced at the 4. What are the requisites of newly discovered evidence as
trial, and which if presented would probably alter the result. (Rule 37, a ground for new trial?
Sec. 1.)
Its requisites are:
Here, fraud means extrinsic or collateral fraud. It refers to such
a) the evidence was discovered after the trial;
acts that prevent a party from having a trial or from presenting his case
in court. It refers to all kinds of deceptions, whether through insidious b) such evidence could not have been discovered and , pro-
. machination, manipulation, or concealment or misrepresentation that duced at the trial with reasonable diligence; and
leads another party to error. Examples are false promise to compromise
c) such evidence is material, not merely cumulative, cor~obo-
or connivance of lawyer with adverse party. It does not include intrinsic
rative, or impeaching, and is of such weight that, If admitted, would
fraud or acts of a party during trial. (Maestrado v, CA, 327 SCRA 678.)
probably change the judgment. (Commissioner of Internal Revenue v.
Accident is a fortuitous event, circumstance, or happening. A. Soriano Corporation, et al., G.R. No. 113703, Jan. 31, 1997.)
Or, it may be an event which under the circumstances is unusual or
unexpected by the person to whom it happens. Examples are sickness . .1 what are the grounds for reconsideration
5• I n cava cases,
of a party, lack of notice when the notice is sent to another address.
of a judgment or final order?
(Jarco Marketing v. CA, 321 SCRA 37~)_..
The following are the grounds:
Mistake means mistake of fact. It does not refer to mistake of
law or errors of judgment which may be raised, properly, in an appeal. a) award of excessive damages;

:220
I 221

I
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
b) insufficiencyof evidence to justify the decision or final order;
and
c) decision or final order is contrary to law. (Rule 37, Sec. 1.)
6. If a motion for new trial is filed, what may the trial court
do?
The trial court may either -
a) deny the motion; or
b) set aside the judgment or final order and grant a new trial.
(Rule 37, Sec. 3.)
7. If a motion for reconsideration Is filed, what may the trial
court do?
The trial court may either -
a) deny the motion; or
b) amend its judgment or final order if it finds that excessive
damages have been awarded or that the judgment or final order is
contrary to the evidence or law. (Rule 37, Sec. 3.)
8. Is a motion for new trial an omnibus motion?
Yes. Therefore, a motion for new trial shall Include all grounds
then available and those not so included shall be deemed waived.
However,a second motion for new trial may be filed if it is based
on the ground not existing nor available when the first motion was
made. (Rule 37, Sec. 5.)
9. Within what time must the court resolve a motion for
new trial or a motion for reconsideration?
a) If it is the MTC or RTC, it must resolve the motion for new
trial or motion for reconsideration within 30 days from the time such
motion is submitted for resolution. (Rule 37, Sec. 4.)
b) If it is the CA, it must resolve the motion for new trial or
motion for reconsideration within 90 days from the date when the CA
declares it submitted for resolution. (Rule 52, Sec. 3; Rule 53, Sec. 3.)
The foregoing period for resolving a motion for new trial or
reconsiderationis not applicable to the Supreme Court.
222
RULE 37 - NEW TRIA · -
l OR RECONSIDERATION
1 O. After his first motion for reconsideration was denied the
defendant filed ano~her motion for reconsideration. Is he ano:.Ved
to file a second motion for reconsideration?
It depends. If ~hat is soughtto be reconsideredis an interlocutory
order, a second matronfor reconsiderationis allowed.
What is prohibited is a secondmotionfor the reconsiderationof
a judgment or final order. Rule 37, Section 5 states: "No party shall
be allowed a second motionfor reconsiderationof a judgment or final
order: (Dizon v. CA, G.R. No. 96296, June 18, 1992 {210 SCRA 107].)
By contrast, a secondmotionfor new trial is allowed if it is based
on a ground not existing nor availablewhen the first motion was filed.
(Rule 37, Sec. 5.)
And under Rule 41, Section 3, no motionfor extensionof time to
file a motion for new trial or reconsiderationshall be allowed.
11. A motJon for new trial or a motion for reconsideration, If
tlmoly filod, will toll the roglomentaryperiod of appeal. Suppose the
motJon for new trial or reconsideration Is pro forma, does It also
toll the reglementary period of appeal?
No, a pro forma motion for new trial or reconsiderationdoes not
loll the reglementary period for appeal. (Rule 37, Sec. 2.)
12. Give examples of pro forma motion for new trial or
reconsideration.
The following are some examples:
a) If the ground for the motionfor new trial is newly-discovered
evidence. such motion is pro forma if it does not set fort~ facts or
circumstances which would qualifysaid evidenceas newly-discovered.
(Dapin, et al. v. Diana/do, et al., G.R. No. 55488, May 15, 1992.)
b) If the ground for the motionfor ne~ tria! is fraud (or ~~ident,
mistake or excusable negligence),such motion rs pro form a rf 1t does
not alle~e with particularity the facts constitutingt~e allege.d fraud (or
aCcident, mistake, or excusable negligence). (Mam/a Elect~~ Co. v. La
Campana Food Products, Inc., G.R. No. 97535, Aug. 4, 19 .)
Thus Section 2 Rule 37 providesthat if the groundfor. the mot~n
for new tri~I is fraud.' accident, mistake, or excusablenegligence, e
223
 t RULE 37 -
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
\I
I 2014. On September 16, 2014,-he-filed a notice-of appeal. The trial
motion shall be supported by affidavits of merits. If the ground is n~wly-
discovered evidence, the motion shall be supported by at:idav1ts of
the witnesses by whom such evidence is expected to be given or by
duly authenticated documents which are proposed. to b~ introduced .in
evidence. On the other hand, a motion for rsconslderation shall point
out specifically the findings or conclusions of the judgment or final order
which are not supported by the evidence or which are contrary to law,
making express reference to the testimonial or documentary ev.idence
or to the provisions of law alleged to be contrary to such findings or
conclusions. Failure to comply with these requirements renders the
motion for new trial or motion for reconsideration pro form a.
Also, a motion for new trial or a motion for reconsideration that
does not comply with the requirements of notice of hearing and proof of
service does not also toll the reglementary period of appeal. (Cledera
v. Sarmiento, G.R. Nos. L-32450-51, June 10, 1971 . [39 SCRA 552].) ,
NEW TRIAl OR RECONSIDERATION
. ·.·.·
court ruled that the notice of appeal was filed out oftlme. The trial
court's ratiocination is that when D filed his motion for new trial, he
had only two days left to appeal; and because he received the order
on September 2, 2014, he had only up to September 4, 2014 to file
his notice of appeal. Is the trial court correct? · .
No, the trial court is not corrsct.tt a motion for new trial is granted,
the judgment is considered vacated whether said judgment is affirmed,
modified, or amended by the trial court, Since the granting of the motion
for new trial operates to vacate the ~dginal judgment, the 15-day period
to appeal should be reckoned from the notice of the order affirming
(modifying or amending) the judgment. Thus, in the problem presented,
D had until Sept. 17, 2014 to file his .notice of appeal. (Rule 37, Sec.
6; David, et al. v. Fernandez, et af/G.R. No. L-62896, Aug. 21, 1989.)
. .

16. May an appeal be taken froin an order denying a motion

13. Does reiteration of previous arguments render a motion
for reconsideration pro forma?
No. Mere reiteration of issues already passed upon the court does
not automatically make a motion-for reconsideration proforma. What is
essential is compliance with the requisites of the Rules. (Republic of the
Philippines v. Asuncion, et al., G.R: No. 159695, Sept. 15, 2006.) ,
14. What are the effects of an order granting motion for new
trial?
Its effects are -
for reconsideration? · · · ·•· , · -
Mendiola v. CA,.et al., G:R. No. 159746, July 18, 2012, teaches:
An order denying a motion fo/r~consideration of an order disrnis-
sing a complaint is a final oroer. no~ an interlocutory order, as it puts
an end to the particular matter resolved (which is the dismissal of the
complaint), or settles definitely the. matter therein disposed 'of, and
· nothing is left for the trial court to. do other than to execute the order.
Hence, an order denying a motion for reconsideration of an order
dismissing a complaint is appealable.

a) the original judgment or final order shall be vacated; But an order denying a motion. ror reconsideration of an inter-
locutory order is not appealable. ·· · · · · · ·
b) the action shall stand for trial de nova; and ·;
c) the recorded evidence taken during the former trial, insofar
as the same is material and competent to establish the issues, shall· be
\'
used at the new trial without retaking the same. (Rule 37, Sec. 6.)
. ' . ',, ~ .. .
15. P sued D. On July 3, 2014, D was notified of the judgment •• ' 1l , l i :.i ) •, . ' • l' • ._ t '·~ • .

rendered against him by the trial court. On July 16, 2014, D filed a
motion for new trial on the ground of newly-discovered evidence.
The trial court granted D's motion, and the case was tried de novo.
After trial de novo, the trial court issued an order affirming its
. ·.·.
judgment. D received a copy of the said order on September 2,
•.. ! ...

224
225

RULE38
RELIEF FROM JUDGMENTS, ORDERS,
OR OTHER PROCEEDINGS
1. Upon what grounds may the petitioner file a petition for
relief from judgment, final order, or proceeding?
Petitioner may file a petition. for relief on the ground that the
judgment or final order is entered, or the proceeding is thereafter taken,
against him through fraud, accident, mistake, or excusable negligence,
praying that such judgment, final order or proceeding be set aside.
(Rule 38, Sec. 1.)
I r
• party to answer the petition within 15 days from receipt of the order.
2. When may the petitioner file a petition for. relief from
judgment, final order, or proceeding?
The petitioner may file a petition forrelief within 60 days after he
learns of the judgment, final order, .or proceeding, but not more than
six months after such judgment. or final order was entered or such
proceeding was taken. The petition-must be verified. (Rule 38, Sec. 3.)
3. Where should the petition for relief be filed?
It should be filed in the same case and in the same court where
the judgment or final order complained of is entered or where the
proceeding is taken. (Rule 38, Sec. 1.)
4. What is the remedy of a party who claims that his consent
to a compromise agreement filed In court was obtained through
fraud, mistake, or duress?
Please note that a judgment upon a compromise is not appealable.'
Thus, the remedy of a party who claims that his consent was
obtained through fraud, mistake, or duress, is to file a motion with the
trial court that approved the compromise agreement to reconsider the
judgment and nullify or set aside the agreement on any of the grounds
226
RULE 38 - RELIEF FROM JUDGMENTS, ORDERS,
OR OTHER PROCEEDINGS
for annulment of contract within 15 days from notice of judgment. If the
15-day period has lapsed, then his remedy is to file a petition for relief
from judgment under Rule 38. If his petition is denied, he may file a
petition for certiorari under Rule 65. (Domingo Realty, Inc. v. CA, G.R.
No. 126236,Jan. 26,2007)
5. What are the proceduralsteps to be observed in petition
for relief from judgment or final order?
The following are the steps:
Step No. 1 - Petitioner files· ·a
verified petition for relief from
judgment or final order. The petition must be accompanied with affidavits
showing the fraud, accident, mistake, or excusable negligence relied
upon, and the facts constituting the.petltioner's good and substantial
cause of action or defense, as the case may be. ·
Step No. 2 - The court issues an order requiring . the adverse
Step No. 3 - The adverse party files an answer to the petition.
But if he does not file an answer, he· cannot be declared in default.
' Step No. 4 - The court hears the petition with or without an
answer being filed. After hearing thepetition, the court may either. (a)
grant-the petition if it finds that the allegations thereof are true; or (b)
deny or dismiss the petition if it finds that said allegations are not true.
If the court grants the petitio.n. for relief, it shall set aside the
judgment or final order complained of and shall proceed to Step No. 5.
. . , .-
If the court issues an order qenying the petition for relief as
mentioned in Step No. 4(b), such order is not appealable. But if in
denying the petition, the court has acted with grave abuse of discretion
amounting to lack or excess of jurisdiction, the petitioner may file a
special civil action of certiorari under Rule 65 to assail the denial of his
petitionfor relief. (Domingo Realty, Inc., et al. _v. CA, et al., G.R. No.
126236, Jan. 26, 2007.)
Step No. 5 - The court proceeds to hear the case as if a timely
motion for new trial has been granted.-
Step No. 6 - The court renders a new judgment. This judgment
is appealable.
227.

QUESTIONS AND ANSWERS IN
REMEDIAL °LAW
Thu~,'there are two hearings. The first is, hearing on the petition
~o determ1rn~ whether to grant or deny the petition for relief; the second
.,s (but only if the petition for relief is granted), hearing on the merits of
the case. (Rule 38, Secs. 3, 4, and 6.) . and a Petition for Relief from Judgment:
6. In de/a Cruz v. Andres, G.R. No. 161864, April 27, 2007,
the Supreme Court explained that a petition for relief from judgment
under Rule 38 of the 1997 Rules of Civil Procedure is an equitable
remedy that is allowed only in exceptional cases when there is no
o~er available or adequate remedy. It may be availed of only after
a judgment, final order, or other proceeding was taken against peti-
tioner in any court through fraud, accident, mistake, or excusable
negligence. Is petition for relief from judgment available as a remedy
in the Court of Appeals or In .t~~. ~upreme Court?
No. A petition for relief from judgment is not available as a remedy
in the Court of Appeals or in the Supreme Court. Although Section 1,
Rule 38 of the 1997 Rules of Civii Procedure provides that a party in
· any court may file a petition for relief from judgment, Rule 56, which
enumerates the cases originally cognizable by the Supreme Court, does
not include it. The phrase "any court" in Rule 38 refers only to Muni-
cipal/Metropolitan Trial Court and the Regional Trial Court. There is no
provision in the Rules of Court making the petition for relief applicable
in the Court of Appeals or in the Supreme Court. (Pucson Jr. v. MRM
Philippines, Inc., et al., G.R. No. 182718, Sept. 26, 2008.)
7. If an appeal was taken out of time, and the court denies
the appeal precisely because it was taken out of time, but the appel-
lant can show that he was prevented by fraud, accident, mistake,
or excusable negligence from taki!lg an appeal seasonably, what
is his remedy?
His remedy is to file a petition for relief in the same court and in
the same case, praying that his appealbe given due course. (Rule 38,
~~~ . or appeal from the adverse decision, he cannot avail himself of .the
And if the court gives due course to the appeal, it will set aside the
denial of the appeal and shall elevate the record of the appealed case
to the appellate court. (Rule 38, Sec. 7.)
· 228
_________
RULE 38 - RELIE
FFROMJUDGMENTS ORDERS
OR OTHE~ PROCEEDINGS ' ,
8. . ~hat are the distinctions between a Motion for New Trial
and a Petition for Relief from Judgment? .
The _f?llowing are the distinctionsbetweena Motion for New Trial
. a) . ~otion for ~ew Trial is filed beforejudgment becomes final;
while Petition for Relief from Judgment is filed after judgment has
become final;
b) Motion for New Trial applies to judgments or final orders
only; while Petition for Relieffrom Judgmentappliesto final judgments,
final orders, and proceedings; , ,
c} The grounds for New Trial are fraud. accident, mistake,
and excusable negligence, and newly-discovered evidence; while the
grounds for Petition for Relief are fraud, accident, mistake, and excus-
able negligence;
d) Motion for New Trial should be filed during the period for
perfecting an appeal; while Petition for Relief should be filed within
60 days from knowledge of the judgment or final order but within six
months from entry of the judgment. or final order;
e) If the Motion for New Trial is denied, the remedy is appeal
from the judgment or final order; while if the Petitionfor Relief is denied,
there is no more appeal;
f) Motion for New Trial is a legal remedy; while Petition for
Relief Is a remedy in equity; and
g) Motion for New Trial needs no verification: while Petition for
Relief must be verified. (Rules 37 and 38.)
Petition for relief from judgment is an equitable remedy· and is
allowed only under exceptional circumstancesand only if fraud, acci-
dent, mistake, or excusable negligence is present. Where defendant
has other available or adequate remedy such as motion for new trial
remedy of petition for relief from judgment. (Mesina v. Meer, G.R.:No.
146845, July 2, 2002.) · ·
229
...,urm.--111111
I
lllllllllm#
•.,,

RULE 39
EXECUTION. SATISFACTION, AND
EFFECT OF JUDGMENTS
1. What are th two kind& of execution?
The following are the two kinds of executions:
a) compulsory execution (also known as execution as a matter
o right};and
b) discretionary execution (also known as execution pending
appeal o exceptional execution). (Rule 39, Secs. 1 and 2.)
2. Th rule is that execution may issue only upon judg-
ments or final orders. May execution likewise issue upon an Inter-
locutory order?
o. Sy its very nature, an interlocutory order cannot be enforced
by execution. There is one exception, though - and that is, an order
tor support perrdente lite.
An order of support pendente lite is not appealable under Rule 41,
i being an interlocutory order. But although interlocutory, an order for
support pendents lite may be enforced by execution under Section 5,
RuJe 61. This is the only interlocutory order enforceable by execution.
(Calderon v. Roxas, G.R. No. 185595, Jan. 9, 2013.)
3. What is a finaJ order? - an interlocutory order?
A final order is one that disposes of the whole subject matter or
terminates a particular proceeding or action, leaving nothing to be done
but to enforce by execution what has been determined.
An interlocutory order is one that does not dispose of a case
completely, but leaves something more to be done upon its merits. (De
Ocampo v. Republic, G.R. No. L-19533, Oct. 31, 1963 {9 SCRA 440};
Investments. Inc. v. CA, G.R. No. 60036, Jan. 27, 1987.)
230
RULE 3~ - EXEC' rr
v, ION, SATISFACTION, AND EFFECT
OF JUDGMENTS
Examples:
An orde.r denying a motion lo dismiss is interfocu1ory because
it does not dispose of the case completely· hence this order is not
appealable. ' '
The remedy of the defendant whose motion lo dismiss is denied is
to file his answer and go to trial.
An order granting a motion to dismiss is a final order because i1
puts an en~ to the case. The remedy of the plaintiff whose complaint is
dismissed rs to appeal from the order of dismissal.
4. What Is the effect of a timely appeal on the judgment
appealed from?
The appeal, if seasonablytaken, shall stay the judgment appealed
from - although the judgmentmay be executedpending appeal if there
is a good reason therefor.
But judgments in actions for: (a) injunction; (b) receivership: (c)
accounting; and (d) support are immediately executory and shall be
enforceable upon their rendition, hence not stayed by appeal, unless
otherwise ordered by the trial court. (Rule 39, Sec. 4.)
Judgment in forcible entry and unlawful detainer cases, if against
the defendant, may also be immediatelyexecuted upon its rendition
on motion of the plaintiff. (Rule 70, Sec. 19.)
5. How may a final and executory judgment be enforced?
A final and executoryjudgment may be enforced:
a) by a motion within five years from the date of entry of
judgment; and
b) by an action after the lapse of five years from the date of
entry of judgment but before it is barred by the statute of limitations
(meaning, within the next five years). This action is known as an action
to revive judgment. The revived judgment may also be enforced by
motion within five years from the date of its entry, and thereafter by
action before it is barred by the statute of limitations. (Rule 39, Sec. 6.J
The lifetime of a writ of execution is five years from entry of
judgment because Section 14, Rule. 39, provi~es t~at the :Writ of
execution "shall continue in effect dunng the penod within which the
231
 --,
QUESTIONS AND ANSWERS
REMEDIAL LAW
IN
judgment may be enforced by motion." In Bajet v. Judge Baclig, A.M.
No. RTJ-00-1598, July 30, 2002; it was pointed out that "under the
present Section 14, Rule 39, the lifetime of the writ of execution is no
longer 60 days but during the period within which the judgment may be
enforced by motion, that is, within 5 years from entry thereof." Thus, a
writ of execution that has already become functus officio by lapse of
time cannot be resurrected by an alias writ of execution.
The rule that judgment may be enforced within five years by
motion, and after five years but within 10 years by an action refers to
civil actions and is not applicable to special proceedings. (Ernesto and
Vicenta Topacio, et al. v. Banco Filipino Savings and Mortgage Bank,
Nov. 17, 2010.)
6. Is a writ of execution that does not conform-to the dis· ,
positive portion of the decision .'-'.alid? .. · . '. J
No. An order of execution (and a writ of execution) that varies the···
tenor of the judgment, or for that matter, exceeds the terms thereof is
void. (Golez v. Navarro, G.R. No. 192532, Jan. 30, 2013)
7. In the dispositive portion of the judgment rendered by
the trial court against the defendant, the following appears: "In
accordance with the Rules, let a Writ of Execution be issued." Is
the trial court correct in ordering the issuance of a writ of execution
in the judgment? ·
No, the trial court is not correct. The trial judge is guilty of gross .
ignorance of the law when he rendered judgment providing for its
immediate execution in the dispositive portion thereof. Basic is the rule
that a judge may not order execution of judgment in the decision i_tself- .
even in cases governed by. the Rule on Summary Procedure. Although .
in ejectment cases where the judgment, if against the defendant, is
subject to immediate execution, there must first be a motion to that
effect and a hearing called for that purpose because the adverse party
is entitled to notice before execution can be ordered. (Lu v. Siapno, et
al., A.M. MTJ-99-1199, July 6, 2000.) ·1·
8. If the judgment has already become final and executory,
lnwhat court may the motion for execution be filed?
The motion for execution may be filed in the trial court· that
rendered the judgment - meaning the court of origin.
232
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RULE 39 - EXECUTION, SATISFACTION, AND EFFECT
OF JUDGMENTS
If the judgment of the trial court has been appealed, and the same
l
has _been ~nally resolved by the appellate court, execution may be
ap~hed for '". the court of ?rigin on motion of the judgment obligee, with
notice to the _Judgment obhgor. The judgment obligee must submit, along
with his motion, the following: (a) certified true copy of the judgment or
final order sought to be enforced; (b) entry of judgment or final order.
(Rule 39, Sec. 1.) .
9.. If judgment obligee files a motion for the. execution of
a _final and executory jl;Jdgment,'should a copy of that motion be
served upon the judgment obligor? ·
No. In Anama v. CA, et al., G.R. No. 187021, Jan. 25, 2012, the'
Supreme Court ruled: "It is evident that Section 1 of Rule 39 of the
Revised ·Rules of Court does not prescribe that a copy of the motion
for the execution· of a final and executory judgment be served on the'
defeated party ... ". Citing other cases, -the Supreme Court further said:
" ... once a judgment becomes final and executory, the prevailing party
can have it executed as a matter of right, and the judgment debtor need
not be given advance notice of the application for execution."
However, as further explained in Anama, the judgment obligor
must be given a written notice of the 'motion for execution and he must
be furnished with a copy of the motion for execution in the following
instances: (a) execution pending appeal; (b) execution applied for in the
court of origin if an appeal has been duly perfected and finally resolved.
(Sec. 1, Rule 39; Sec. 2[aj, Rule 39) .
· 1 O. The judgment has already become final. The prevailing
party moves for the issuance of a writ of execution. The trial court,
however, refuses to issue the writ of execution. What is the remedy
of the judgment obligee? ·
The remedy of .the judgment obligee in the pr~b~em pres~~ted. is
I
mandamus. After the judgment has ,become fi_nal, 1t rs the rnlnlsteriat
duty of the court to issue the writ of execution. (Lumapas v. Tamin, A.M.
No. RTJ-99-1519, June 27, 2000.)
'Once a decision becomes final and executory, it is the mini~terial
duty of the court or tribunal to order its execution. Such order of
execution is not appealable,.(Manifa·Midtown Hotel v. Borromeo, et ":
G.R. No. 138305, Sept. 22, 2004.) · ' .
233
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 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
If the judgment, however, was appealed to the appellate court,
and the appeal has been finally resolved, but the trial court refuses to
issue the writ of execution, then the remedy of the judgment obligee Is
to file a motion (not a petition for mandamus) with the appellate court
and in the same case for an order directing the trial court to issue the
writ of execution. (Rule 39, Sec. 1.)
11. Are there instances where although the judgment has
already become final, still the court may refuse to Issue the writ of
execution? · may be executed by meremotionevenafterthe lapse of five years?
Yes, there are but a few instances like:
a) where supervening events occurring subsequent to. the
judgment bring about a material change in the situation of the parties
which makes execution inequitable. In Philippine Veterans Bank v. /AC,
now CA, et al., G.R. No. 73162, Oct. 23, 1989, the fact that petitioner
was placed under receivership is a supervening event that. renders a
judgment, notwithstanding its finality, unenforceable by attachment or
execution;
b) where there is no cornpellinq urgency for the execution
because it is not justified by the prevailing circumstances (Sac/ayon v.
CA, G.R. No. 89132, Feb. 26, 19f}O [182 SCRA 761].); or
c) where the judgment has become dormant for failure of the
prevailing party to have it executed within five years from entry thereof,
12. What is the remedy of the judgment obllgor if the writ of
execution varies the judgment?
His remedy is to file a motion to quash writ of execution.
Other instances when judgment obliger may move to quash writ
of execution are:
a) there has been a change in the situation of the parties,
making execution unjust or inequitable;
b) execution is sought to be enforced against a property exempt
from execution;
c) it appears that the controversy has never been submitted to
the judgment of the court; ·
234
39
RULE - EXECUTION, SATISFACTION,AND EFFECT
OF JUDGMENTS
_d) the ter~s of the judgment are not clear enough, and there
remains room for interpretation thereof; and
e) it appears that the writ of execution has been improvidently
issued, or that it is defective in substance, or it is issued against the
wrong party, or that the judgment debt has been paid or otherwise
satisfied, or the writ was issued without authority. (Gutierrez v. Valiant,
G.R. No. 166802, July 4, 2008)
13. Are there instanceswhena final and executoryjudgment
Yes. And in those instances, the common denominator is the
delay caused or occasioned by actions of the judgment obligor, or is
incurred for his benefit or advantage. (Camacho v. CA, et al., G.R. No.
118339, Marc~ 19, 1998.)
The five-year period to file motion for execution of judgment may
be interrupted by agreement of the parties to defer or suspend enforce-
ment of the judgment. (Macias, et al. v. Um, et al., G.R. No. 139284,
JuneA, 2004, citing Trouble v. de los Angeles, 96 SCRA 69.)
14; Does the rule that a final judgment may be enforced
within five years by motion,and after five years but within 1 ~ years
by an action, apply in land registrationcases or other special pro-
ceedings?
No. The rule regarding the period for enf~rce~ent of judgments
is applicable only in civil actions, not in lan_d reqistration cases or other
special proceedings. (Rodi/, eta/. v. Benedicto, eta!., G.R. No. L-28616,
Jan. 22, 1980.)
15 After the iapse of five years from the da_te of its entry,
the jud~ment may be enforced by an action. What is the purpose
of the new action?
f the new action is to revive the judgment, not to re-
The purpose~ d decided. The cause of action of this
examine an_d ret~ issues tatlreab/revived. (Caina v. CA, et al., G.R. No.
new action rs the JUdgmen °
114393, Dec. 15, 1994.)
I t the defendantbecamefinal and
16. The judgment ag;tt':t lalntlff filed a motionfor execution
· executory on July 16, 201o. P
235
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QUESTIONS AND ANSWERS IN
REMEDIAL LAW
on November 5, 2014. The court issued a writ of execution on
December 20, 2014. The sheriff levied on the property of the
defendant on October 1, 2015. ls the levy valid?
No, the levy is not valid. The reason is that at the time of the levy,
the writ of execution was no longer effective. The rule now is that the
writ of execution shall continue in effect during the period within which
the judgment may be enforced by motion. This means that the lifetime
of a writ of execution is five years from the date of entry of judgment.
(Rule 39, Sec. 14.)
Defendant's remedy against a levy made pursuant to a void writ of
execution is to file a motion to quash levy,
' Levy is defined as the act or acts by which an officer sets apart
or appropriates a part or the whole of a judgment obligor's property for
the purpose of satisfying the command of the writ of execution. (Caja v.
Nanqui/, A:M. No. P-04-1885,.Sept. 13, ?004.)
17. What are the requisites of execution pending appeal?
The following are the requisites of execution pending appeal:
. a) there must be a motion by the prevailing party with notice to
the adverse party;
b) there must be a good reason for execution pending appeal;
and
· c)the good reason must be stated in a special order. (Fortune
Guarantee and Insurance Corporation v. CA, et al., G.R. No. 110701,
May, 12, 2002, citing Provident International Resources Corp. v. CA,
G.R. No. 119328, July 26, 1996 [259 SCRA 510].) . ··
. '1 s. In execution pending _appeal, the court must state in a
special order the good reason for execution pendlnq appeal. If the
court's special order does not state the good reason for execution
pending appeal, is the execution pending appeal valid~
.. . No. In Carpio v. CA, eta/., G.R. No.183102,.Feb. 27,.2013,·the
Supreme Court teaches that the statement of a good reason in a s~e-
cial order is strictly required by the Rules of Court, because execution
before a judgment has become final a~d ~xec~tory is t_he exception
rather than the rule. If the writ of execution rs void, all actions and pro-
ceedings conducted pursuant to it are also void. · · claim for relief is presented in an action. The court, at any staqe.upon
236
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RULE 39 - EXECUTION, SATISFACTION, AND EFFECT
OF JUDGMENTS
. 19. If the judgment obllgee moves for execution pending
appeal, in what court should he file his motion for execution?
He should file his motion for execution pending appeal in the trial
court while it has jurisdiction over the case and is in possession of either
the original record or the record on appeal at the time of the filing of the
motion.
After the trial court has lost jurisdiction over the case, the motion .
for execution pending appeal should be filed in the appellate court ..
(Rule 39, Sec. 2.)
But even if the trial court has already lost jurisdiction over the
case, it may still order execution pending appeal prior to the transmis-
sion of the original record or record on appeal to the appellate court.
Whether it is· the trial court or -the appellate court that orders
execution pending appeal, discretionary execution may only issue up~m
good reasons to be stated in a special 'order, (Rule 39, Sec. 3.) · ·
20. May execution pending appeal be stayed? How?
Yes, it may be stayed. The party against whom the execution
pending appeal is directed shall- file a supersedeas bond: And if ~he
supersedeas bond is approved by the court, then the execution pending
appeal may be stayed. (Rule 39, Sec. 3.).
21. May a several, separate, or pa~ial judgment be execu-
ted? How? · · ·
Yes. A several, separate, or partial judgment may be executed by
complying with all the requisites of execution pending appeal. . ·
"Section 1 (b ), Rule 39 of the 1997 · Rule~ o~ Civil Procedure, which
reads: Execution of several, separate or partial Judgment. -A several,
separate or partial judgment may beexecuted under the same ter~_s.
and conditions as execution of a. judgment or final order pending
appeal."
A several judgment may be rendered when th_ere are several .
defendants. The court may render judgment against one or more of
them, leaving the action to proceed against the others. (Sec. 4, Rule 36.)
. A separate judgment may be rendered when .rnore than one
237,·
 ,.
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QUESTIONS AND ANSWERS IN
REMEDIAL LAW
a determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the
subject matter of the claim, may render a separate judgment disposing
of such claim. The judgment shall terminate the action with respect
to the claim so disposed of and the action shall proceed as to the
remaining claims. In case a separate judgment is rendered, the court
by order may stay its enforcement until the rendition of a subsequent
judgment or judgments and may prescribe such conditions as may be
necessary to secure the benefit thereof to the party in whose favor the
judgment is rendered. (Sec. 5, Rufe 36.)
22. The RegionalTrial Court rendereda decision against the
defendant. The defendant appealedto the Court of Appeals. Mean-
while, the plaintiff filed with the trial court a motion for execution
pending appeal. The trial court granted plaintiff's motion and
issued an order granting executionpending appeal.The defendant
filed a petition for certiorari under Rule 65, assailing the order of
the trial court on the ground that there is no good reason for the
issuance of the order of execution pending appeal. The plaintiff
opposed the petition, arguing that the propriety of issuance of
the writ of execution pending appeal is merely an ancillary issue
that should be raised by the defendant in his appealfrom the trial
court's decision, not in a separate petition for certiorari. Is the
remedy of certiorari correct?
Yes. Certiorari is the remedy aqainst an order granting execution
pending appeal where the same is not founded upon good reasons.
Appeal is not a speedy and adequate remedy that can relieve the losing
party from the immediate effects of an improvident execution pending
appeal. (BF Corporation v. Edsa Shangri-La Hotel & Resort, tnc; et al.,
G.R. No. 132655, Aug. 11, 1998.)
· There is no forum shopping if the defendant appeals from the
judgment of the trial court and, soon thereafter, files a special civil
action of certiorari and prohibition to assail the order of the trial court
for execution pending appeal. The petition for certiorari and prohibition
does not involve the merits of the petitioner's appeal. (Marcopper Mining
· Corp. v. Solidbank Corp., et al., G.R. No. 134049, June 17, 2004.)
23. ·The RTC rendered a decision ordering the defendant
to ·pay the plaintiff P4 Million as moral damages, P1 Miiiion as
exemplary damages, P52 Million as actual damagesand P300,000
238
39
RULE - EXECUTION, SATISFACTION, AND EFFECT
OF JUDGMENTS
as ~ttorney's fees. The defendantappealedin due time to the CA.
Durmg the pendency of the appeal the plaintiff filed a motion
f°.r execution pending appealon the' ground that the appeal was
d1l~tory. Despite defendant'sopposition, the RTC granted exe-
cution ~e~dlng appeal upon the posting of a bond in the amount
of PS M1lhon.Defendantfiled a motion for reconsideration of the
ord~r granting executionpendingappeal,but the RTCdenied said
motion. Defendantwent to the CA on a petition for certiorari under
Rule 65.
a) May the defendantfile a special civil action for certiorari
although the case is alreadyon appealto the CA? .
b) Is executionpendingappealjustified wherethe appeal is
frivolous or dilatory?
. . c) Is the filing of the bond by the prevailing party a good
reason for ordering executionpendlnqappeal?
d) · May awards of moral and exemplary damages be the
subject of execution pendingappeal?
The foregoing issues were resolved by the Supreme Court in
v. CA, et al., 309 SCRA 4 74, as follows:
International School, Inc.
a) Certiorari under Rule 65 lies against an order granting
execution pending appeal.The fact that the losing party had appealed
from the judgment does not bar the certiorari action filed in the Court
of Appeals as the appeal could not be an adequate remedy from such
premature execution. As held by the SupremeCourt: "Although Section
1, Rule 65 of the Rules of Court providesthat the special civil action for
certiorari may only be invokedwhen 'there is no appeal, nor any plain,
speedy and adequate remedy in the ordinary course of law,' this rule
is not without any exception. The availability of the ordinary course of
appeal does not constitute sufficient ground to prevent a party from
making use of the extraordinaryremedy of certiorari where appeal is
not an adequate remedy or equally beneficial, speedy and sufficient.
It is the inadequacy not the mere absence of all other legal remedies
and the danger of failure of justice if the writ is not issued that usually
determines the propriety of certiorari." (See also Valencia v. CA, G.R.
No. 89431, April 25, 1990 [184 SCRA 561}.)
b) Where the reason give~ -for executio~ pendin~ appeal is
that the appeal is frivolous and dilatory, execution pending appeal
239
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
cannot be justified. In Ong v. CA, G.R. No. 92241, Oct. 17, 1991 (203
SCRA 38). it was held that it is not proper for the trial court to find that
an appeal is frivolous and consequently to disapprove it since the dis-
allowance of an appeal by said court constitutes a deprivation of the
right to appeal.
The authority to disapprove an appeal on the ground that it Is
frivolous rightfully pertains to the appellate court.
c) The filing of a bond is not a good reason for ordering execu-
tion pending appeal. In Roxas v. CA, G.R. No. L-56960, Jan. 28, 1988
(157 SCRA 370), it was held that to consider the mere posting of a
bond as ·good reason" would precisely make immediate execution of a
judgment pending appeal routinary, the rule rather than the exception.
Judgments would be executed immediately as a matter of course once·
rendered, if all that the prevailing party needed to do was to post a bond
to answer for damages that might result therefrom. This is a situation
neither contemplated nor intended by law.
d) In RCPI v. Lantin, G.R. No. L-59311, Jan. 31, 1985 (134
SCRA 395), it was held that awards for moral and exemplary damages
cannot be the subject of execution pending appeal.
24. Plaintiff XYZ Corporation filed a motion for execution
pending appeal. It cites as a ground that it was in financial distress
and urgent need of funds to meet its obligations. The court denied
the motion. Is the court correct?
Yes. It has been held that even the danger of extinction of the
corporation will not per se justify a discretionary execution unless there
are showing of other good reasons. This is because execution pending
appeal is not to be granted except for good reason to be stated in a
special order. (BF Corporation v. Edsa Shangri-La Hotel & Resort, Inc.,
et al., G.R. No. 132655, Aug. 11, 1998; See also Phil. Bank of Commu-
nications v. CA, G.R. No. 126158, Sept. 23, 1997.)
25. Give some examples of good reasons that may Justify
execution pending appeal?
Some examples of good reasons are:
a) deterioration of the commodities subject of the litigation
during the pendency of the appeal. (Bell Carpets International Trading·
Corp. v. CA, G.R. No. 75315, May 7, 1990 [185 SCRA 35).)
240
RULE 39 - EXECUTION, SATISFACTION, AND EFFECT
OF JUDGMENTS
b) the finished goods (yarn) that were attached easily deter-
iorate and go out of fashion insofar as the shades and colors are con-
cerned, thus mak(ng them unsaleable, and their continued storage will
only make them dirty and further depreciate their value. (Shuhei Yasuda
v. CA, et al., G.R. No. 112569, April 12, 2000.)
c) the judgment may become illusory or the prevailing party
may be unable to enjoy it. (Borja v. Encarnacion, L-1479, May 30, 1951
•L
[89 Phil .. 239].)
. 26. A summary judgment was rendered by the trial court in
favor of the plaintiff. Plaintiff filed with the trial court a motion for
execution pending appeal, alleging that the appeal taken by the
defendant is frivolous and that plaintiff is willing to put up a bond
for the issuance of the writ of execution pending appeal. The trial
court ordered the execution of its decision pending appeal, holding
that: (a) as basis for execution pending appeal, plaintiff offers to
·
post a bond in an amount equal the value sought to be enforced,
which bond shall answer for any damage the defendant may
suffer in the event the judgment rendered by the court is reversed
or modified on appeal; and (b) that the appealed decision, being
one anchored on a clear finding that there is no genuine issue,
deserves implementation pendinq appeal. Is the trial court correct?
. The triai court is not correct. By stating that the appealed decision
is anchored on a clear finding that there is no genuine issue, the trial
court passed upon the· merits of its own decision. It is not for the trial
court to determine the merits of its decision and use the same as basis
for its order allowing execution pending appeal. The detennination of
the merits of the appealed decision i~ lodged in the appellate court.
.: ·The filing of the bond is not~ good reason f~r ordering execution
pending· appeal. (Marcopper Minmg Corp. v. Soltdbank Corp., et al.,
G.R. No. 134049, June 17, 2004.)·
27. In a civil case before the Regio_nalTrial Court, the plaintiff
and the defendant submitted a compromise agreement whereby the
def en d ant bou nd h imself to pay the plaintiff the sum
·
of P160,000
II t 'th
In 80 equal monthly installments, at P2,000 per lnsta men , w1
the condition that failure to pay two installments would render
the outstanding amount due and payabl~. The court approved the r
and rendered Judgment based thereon.
compromise agreem ent
241 I
I
I
• l
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
A year later and alleging that she was paid only P2,500, plaintiff
filed a motion for the issuance of a writ of execution. In his motion,
however, he demanded execution of the amount of P57,500. The
court issued an order of execution, and the Clerk of Court issued
a writ of execution for the amount of P57,500. Three days later, the
sheriff annotated the notice of levy on the Transfer Certificate of
Title covering a parcel of land still in the name of the defendant but
which the defendant had already sold to X. Realizing his mistake,
plaintiff wrote the Clerk of Court and requested that the writ of
execution be amended by changing the amount to be satisfied,
from P57,500 to P157,500. The Clerk of Court issued an amended
writ of execution. Meanwhile, X registered his deed of sale with the
Register of Deeds. The new certificate of title issued to X contained
an entry referring to the notice of levy. Upon verification, X learned
that the amount due as per notice was P57,500. So, he tendered the
amount of P57,500 to the Clerk ofCourt, The Clerk of Court rejected
the tender, because according to him, the amount was insufficient
as the writ and the notice of levy had already been amended to
reflect the correct amount of P157,500.
Questions:
a) Does the Clerk of Court have an authority to amend
ex mero motu a writ of execution by changing the amount to ·be
satisfied in the execution?
b) Was the Clerk of Court justified in rejecting X's tender of
P57,500? . party?
c) What remedy should the plaintiff have pursued?
The Clerk of Court does not have any authority to issue the
amended writ. A writ of execution is based on the order (or award) of
execution. The distinctions between a writ of execution and an order
(or award) of execution are: (a) Issuance of a writ of execution is a
ministerial act, award of execution is a judicial act; (b) The function of
ordering the execution devolves upon the judge, while the issuance of
a writ of execution, being ministerial, may be performed by the clerk of
court.
The Clerk of Court is not justified in rejecting X's tender of
P57,500. Xis not required to dig deep into the records of the civil case
to ascertain the amount subject of the notice of levy, for he had every
right to rely solely on the amount stated in the notice of levy.
242
de,
RULE 39 - EXECUTION, SATISFACTION AND EFFECT
OF-JUDGMENTS '
Plaintiff should have filed with the court a motion for the amend-
ment of the order of execution and of the writ of execution. (Viray v. CA,
G.R. No. 120760, Feb. 24, 1998.)
28. The judgment in a forcible entry case orders the defendant
to vacate the premises and to remove and demolish the house he
had built thereon. Armed with a writ of execution, the sheriff ousted
the defendant from the premises and restored possession thereof
to the plaintiff. The sheriff likewise demolished the house built by
the defendant on the premises. Was the demolition of the house by
the sheriff proper?
No. The demolition aspect of the judgment subject of the writ
of execution cannot be implemented without a special order for that
purpose, Section 10(d) of Rule 39 provides: "When the property subject
of the execution contains improvements constructed or planted by the
judqrnent obligor or his agent, the officer shall not destroy, demolish
or remove said improvements except upon special order of the court,
issued upon motion of the judgment obligee after due hearing and after
the former has failed to remove the same within a reasonable time fixed
by the court."
The special order for demolition is separate from the writ of
execution.
29. How may execution be enforced in case of death of a
a) Where it is the judgment obligee who dies, execution may
be enforced upon the application of his executor or administrator or
successor in interest;
b) Where it is the judgment obliger who dies, execution may be
enforced 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; or .
c) · Where the judgment obliger dies after execution is_actu~lly
levied upon any of his property, the same may be sold for the satisfaction
of the judgment obligation. (Rule 39, Sec. 7.)
30. There Is a judgment against X. The ju~gment beca~e
final and a writ of execution was Issued. The sheriff levied on X s
243
 -- .. ··-· . . -·.,-,.,,-
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
~ouse. The. house was later sold to Y in an execution sale. X's cer-
tificate of title was cancelled and a new one was issued to Y, the
purchaser ?f the house at the execution sale. Four years later,·X
filed an. action. for the cancellation of Y's certificate of title. In his
complaint against Y, X alleged that the house is a family home and
therefore exempt from execution. May the action prosper?
: No, the action may not prosper. Although the house is a family
home and ~herefore exempt from execution, X should have claimed
the exem~t,o~ from execution before its sale on execution. The right
to exen:1pt1on _,s a personal privilege· granted to the judgment obliger,
an~ as su~h, ,t must be claimed not by the sheriff but by the judgment
obhgor. It is not sufficient that the judgment obligor claiming exemption
me_rely alleges that such property is a family home. He must set up his
claim a_nd prove to the sheriff the exemption of the subject property
before its sale on execution. (Oliva-de Mesa v. Acero, et al., G.R. No.
185064, Jan. 16, 2012.) · of the validity of his title or right of possession thereto, the claim will be
31. Who is a third-party claimant?
...
A third-party claimant is one who claims title to, or right of posses-
sion of the property levied upon by the sheriff. (Rule 39, Sec. 16.) ·
Example: P v. D. The court rendered a judgment in favor of P. The
judgment became final, and a writ of execution was issued against D.
To enforce the writ of execution, the .sheriff levied on a property which
he thought was owned by D. This property, however, belonged to X. X
is a third-party claimant. · the judgment obligee. If· a third-party claim is filed, the sheriff is not
There may ·be a third-party cl~imant in execution,' preliminary
attachment, and replevin. · ...
Magdalena T. Villasi v. Filomena Garcia, etc., G.R. No. 190106,
Jan. 15, 2014, explains that the right·of a third-party claimant to file a
third-party claim (or, terceria) is founded on his title or right of posses-
sion. Before the court can exercise its supervisory power to direct the
release of the property mistakenly levied and the restoration thereof to
its rightful owner, the third-party claimant must first unmistakably estab-
lish his ownership or right of possession thereon.
In Spouses Sy v. Hon. Discaya,'260 Phil. 401 (1990), the Supreme
Court has explained that for a third-party claim or a terceria to prosper,
the claimant. must first sufflciently establish his right on the property:
244
.. ,- .. ,-.....,u~I ___.,.
RULE 39 - EXECUTION,''SATISFACTION, AND EFFECT
OF JUDGMENTS
"[A] thl~d P_erson wh~se property was seized by a sheriff to answer for
the ob.ligation°! the Judgment debtor may invoke the supervisory power
of the _court which authorized such execution. Upon due application by
the third person_ and after summary hearing, the court may command
that the property be released from the mistaken levy and restored to the
rightful owner or possessor. What said court can do in these instances,
however, is limited to a determination of whether the sheriff has acted
righ,tly or wrongly in the performance of his duties in the execution of
judgment, more specifically, if he has indeed taken hold of property
not belonging to the judgment debtor. The court does not and cannot
pass upon the question of title to the property, with any character of
finality. It can treat of the matter only insofar as may be necessary to
decide if the sheriff has acted.correcny or not. It can require the sheriff
to restore the property to the claimant's possession if warranted by the
evidence. However, if the claimant's proofs do not persuade the court
denied."
32. What are the remedies of a third-party claimant?
His remedies are the following:
a) He may file a third-party claim (also called terceria) by
making ·an affidavit showing his title to, or right of possession of the
property being levied upon, stating therein the grounds of such title or
right, and serving the same upon the sheriff and a copy thereof upon'
bound to proceed with the levy of the property, unless the judgment.
obligee fil.es an indemnity bond. (Escovilla v. CA, G.R. · No. 84497, Nov.
6, 1989.) The bond shall not be less than the value of the property
levied upon. (Rule 39, Sec. 16.) .
·. b). If a bond has.been filed·by the•judgment obligee,.the third-
party claimant may file an action against the bond within 120 days from
the date of the filing of said bond. · ...
. c) He may institute .a separate action to vindicate his claim
to the property. This action would have for its object the recovery of
ownership or possession of the property seized by the sheriff, as well
as damages resulting from the allegedly wrongful seizure and detention
thereof despite the third party claim, and· it may be brought against
the sheriff and such otherparties asmay be alleged to have colluded·
245
 ."·~~··.
· QUESTIONS AND ANSWERS IN
REMEDIAL LAW
with him in the supposedly wrongful execution proceedings, such as
the judgment obligee himself. If instituted by a stranger to the suit in
which execution has issued, such proper action should be a totally and
distlnct action from the former suit. (Power Sector Assets and Liabilities
At1anagement Corporation [PSALM] v. Maun/ad Homes, Inc., G.R. No.
215933, Feb. 2017)
d) In preliminary attachment or replevin, hemay also intervene
in the action. Intervention is no longer available in execution because
intervention may be resorted to only before rendition of judgment by the
trial court.
These remedies are cumulative in the sense that the third-party
claimant may resort to any of them without availing himself of the other
remedies. Thus, the third-party claimant may institute a separate action
to vindicate his claim to the property without first filing a third-party
claim. (Naguit v. CA, et al., G.R. No. 137675, Dec. 5, 2000.)
33. If the judgment obligor's property Is levied upon and
sold on execution, is there a right of redemption?
It depends. If what is sold on execution Is a personal property,
there is no right of redemption.
But if what is sold is a real property, there Is a right of redemption
which must be exercised within one year from the date of the registra-
tion of the certificate of sale. (Rule 39, Secs. 27 and 28.)
The certificate of sale is issued by the sheriff or officer who con-
ducted the execution sale.
34. Who can redeem the real property sold on an execution
sale?
The following are the one who can redeem the real property sold
on an execution sale:
a) the judgment obliger; and
· b) a redemptioner.
If the one who. redeems is a redemptioner, there can be further
redemption from him - which means that the property so ~eemed
may again be redeemed. But, if the one who re?eems ts ~he Judgment
obligor himself, there can be no further redemption from him. · ·
246
. ,
RULE 39 - EXECUTION;SATISFACTION, AND EFFECT
OF JUDGMENTS
The right of redemption must be exercised within one year from
the date of the registration of the certificate of sale. But, if a redemp-
tioner redeems from another redemptioner, he must do so within 60
days after the last redemption. ·
35. Who is a redemptioner?
A redemptioner is a creditor having a lien by virtue of an attach-
ment, judgment, or mortgage on the property sold, or on some part
thereof, subsequent to the lien under which the property was sold.
(Rule 39, Sec. 27[b].)
36. In 1999, 0 mortgaged his land to C. The mortgage was
registered In the Registry of Deeds. In 2000, P, another creditor,
flied a case against D for collection of a sum of money arising from
a transaction unrelated to the mortgage. A judgment was rendered
against 0. After the finality of the judgment, a writ of execution was
Issued. The sheriff levied on the same land that was earlier mort-
gaged by O to C. After the levy, X, also another creditor, flied a case
against O and had the same land attached. Pursuant to the levy, the
land was sold to Z as highest bidder In the execution sale. The sale
was registered In the Registry of Deeds. Who among 0, C, and X
may redeem the property within the one-year redemption period?
D may redeem the property because he is the judgment obligor.
C cannot redeem It because while he has a lien by virtue of a
mortgage, his lien is prior to the lien under which the property was sold.
And because his lien is a prior lien, he may still foreclose the mortgage
in due time notwithstanding the sale of the property to z.
X's lien which is by virtue of attachment is subsequent to the lien
under which the property was sold. Hence, he is a redemptioner; and
as such, he may redeem the property.
37. Anned with a writ of execution to enforce a judgment
awarding the plaintiff PS00,000, t~e sheriff l~vied upon _two resi-
dential lots located in Baguio City belonging to the Judgment
obligor. Easily, these two lots are worth PS Million. At the public
auction the sheriff sold these two lots to the plaintiff for PS00,000
(which Is the amount of the judgment obligation). Is the execution
sale valid?
247
 QUESTIONS AND ANSWERS IN RULE 39 - EXECUTION,SATISFACTION,AND EFFECT
REMEDIAL LAW OF JUDGMENTS

No, the execution sale is not valid because the two lots were not The following are the steps;
sold separately. a) judgment obligee files a motion for execution with the trial
Section 9 provides: MWhen there is more property of the judgment court;
obliger than is sufficient to satisfy the judgment and lawful fees, he must b) trial court issues order of execution;
sell only so much of the personal or real property as is sufficient to
satisfy the judgment and lawful fees." (Cometa v. CA, G.R. No. 141855, c) clerk of court issues writ of execution;
Feb. 6, 2001.) d) sheriff or officer enforces writ of execution by levying on
Also, Section 19 provides, in part: 'When the sale is of real pro- judgment obligor's property; ·· ·
perty, consisting of several known lots, they must be sold separately."
e) sheriff or officer causes posting and publication of notice of
. sale and gi~es copy thereof to the judgment obligor;
38. Who is entitled to the rents, earnings, and income
derived from the property during the period of redemption? f) 'sheritt or officer conducts execution sale on the date, time,
and
·.·· ,..
place stated
·. . in
.
the notice·
. , ·
All rents, earnings, and income derived from the property during . ,· .

the period of redemption shall belong to the judgment _obl_igor until the
expiration of his period of redemption. (Rule 39, Sec. 32.)
Thus, during the period of redemption, the judgment obligor is
entitled to the possession of the property and is not required to pay rent
to the purchaser. _. ~
,:
39. At the sale on execution, the land levied upon was sold
to X, a third person, as the highest bidder. X, however, failed to
recover possession of the land because of irregularities in the
proceedings concerning the sale. What are the remedies of X?
The rule is that if a purchaser of a real property sold on execution
fails to recover possession thereof or is evicted therefrom because:
(a) of irregularities in the proceedings concerning the sale; or (b) the
judgment has been reversed or set aside; or (c) the property is exempt
from execution; or (d) a third person has vindicated his claim over the
·,. g) ·· sheriff or officer issues-certificate of sale to the purchaser;
h) certificate of sale (ir"s"u.bject of the sale is real property) is
· registered with the Registry of Deeds;
i) judgment obligor or redemptioner redeems property within
1. one year from the date of the registration of the certificate of sale; and
j) if no· redemption is mad~ within the one-year period afore-
said, sheriff or officer issues final certificate of sale; purchaser becomes
entitled toconveyance and possession of the property. ·
· ·; ·. 41. , What is the effect of a foreign judgment or final order?
' ' "-.The ~ffect of a judgment or_ final order of a tribunal of a foreign
. j~dgiiient or final order of a tribunal._ of a foreign country, having juris-
diction to render the judgment or final order is as follows:
;-, .
I
,'

property, the remedies of the purchaser, like X, are as follows: (a) in case ~fa judgment or final order upon a specific thing, the
a) he may, in a separate action or on motion in the same action, judgment or final order is conclusive upon the title to the thing; and l!
'• • I . • ~ • •

recover from the judgment obligee the price paid with interest; or (b) in case of a judgmenfor"final order against a person, the
judgment or.final order is presumptive evidence of a right as between
l
b) he may on motion in the same action have the original
judgment revived in his name against the judgment obligor for the the parties and their successors in interest by a subsequent title ..
whole price paid with interest. (Rule 39,. Sec. 34.) In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the'party, collusion,
\
40. Briefly summarize the steps in execution of judgment t·
fraud or clear mistake of law or fact. (Sec. 48, Rule _39.) ·
or final order that has already become final and executory. , ,, ,, . . . - .· .

248 249
I
I
l
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
42. Gerbert, a Filipino who became a Canadian citizen
married Daisylyn In Pasig. Because of work commitments, Gerbert
left for Canada soon after the wedding. After about five months,
he returned to the Philippines, but was shocked to discover that
Daisylyn was having an affair with another man. Disappointed,
Gerbert went back to Canadaand filed a petition for divorce. After
obtaining a divorce decree, he returned to the Philippines and
registered the divorce decree in Pasig local civil registry. Then, he
filed a petition with the RTC for judicial recognition of the foreign
divorce decree. The court, however, denied Gerbert's petition on
the ground that the remedy under the second paragraphof Article
26 of the Family Code is available only to the Filipino spouse. The
second paragraph of Article 26 of the Family Code reads: "Where a
marriage between a Filipino citizen and a foreigner is validly celeb-
rated and a divorce is thereaftervalidly obtained abroad by the alien
spouse capacitating him or her to remarry,the Filipino spouse shall
likewise have capacity to remarry under Philippine law."
Is the court correct in holding that the remedy under the
second paragraph of Article 26 of the Family Code is available only
to the Filipino spouse?
Is the court correct in dismissing Gerbert's petition?
Yes, the court is correct in holding· that the -remedy under the
second paragraph of Article 26 of the Family Code is available only to
the Filipino spouse. In Corpuz v. Sto. Tomas, et al., G.R. No. 186571, .
Aug. 11, 2010, it was held that the alien spouse can claim no right
under the second paragraph of Article 26 of the Family Code as the
substantive right that it establishes is in favor of the Filipino spou~e ..
The court, however, is not correct in dismissing Gerbert's petition.
The Supreme Court has explained in Corpuz v. Sto. Tomas, et al., that
the foreign divorce decree itself, after its authenticity and conformity
with the alien's national law have been duly proven according to our
rules of evidence, serves as a presumptive evidence of right in favor of
Gerbert, pursuant to Section 48, Rule 39 which provides for the effect
of foreign judgments. This section provides:
"Sec. 48. Effect of foreign judgments or final orders. - 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: · ·
250
RULE Jg - EXECUTION, SATISFACTION, AND EFFECT
OF JUDGMENTS
a) In ~ase of a j_udgment or final order upon a specific thing, the
Judgment or final order rs conclusive upon the title of the thing; and
b) In case of a judgrryent or final order against a person, the
Judgme~t or final o.rder is presumptive evidence of a right as between
the parties and their successors in interest by a subsequent title.
. In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want or notice to the party, collusion,
fraud, or clear mistake of law or fact."
The foreign judgment (or foreign divorce decree), once recog-
nized, shall have the effect of res judicata between the parties.
In Corpuz v. Sto. Tomas, et al., the Supreme Court also explained
that the recording of the divorce decree by the Pasig local civil registry
on the strength alone of the foreign divorce decree presented by
Gerbert is improper because there is no judicial order yet recognizing
the foreign divorce decree.
If there is now an order recognizing the foreign divorce decree,
such an order does not by itself authorize the cancellation of the entry
! in the civil registry. A petition for recognition of a foreign judgment (or
foreign divorce decree) is not the proper proceeding contemplated
I
under the Rules of Court for the cancellation or correction of entries
in the civil registry. A petition under Rule 108 must be filed. Rule 108
sets in detail the jurisdictional and procedural requirements that must
be complied with before a judgment authorizing the cancellation or
correction may be annotated in the civil registry.
t Does it mean that two petitions must be filed - one for judicial
!l recognition of the foreign divorce decree and another for cancellation
of entry in the civil registry? No. Corpus v. Sto. Tomas, et al., explains
that recognition of foreign divorce decree may be made in a Rule 108
proceeding itself, as the object of special proceedings (such as that
in Rule 108 of the Rules of Court) is precisely to establish the status
or right of a party or a particular fact. R~le 108 of t~e Rules o.f Court
can serve as the appropriate adversarial proceeding by which the
applicability of the foreign judgment can b~ measured and teste~ in
terms of jurisdictional infirmities, want of notice to the party, collusion,
fraud, or clear mistake of law or fact."
Fujiki v. Marinay, et al., G.R. N~. 196049, June 26'. ~013, reitera~es
the ruling in Corpuz v. Sto. Tomas, et al., that recognition of a foreign
251
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
judgment may be made in a special proceeding for cancellation
correction of entries in the civil registry under Rule 108.
43. Fujiki, a Japanese national, married Marinay In the Philip-
pines. After the marriage, Fujiki returned to Japan, but Marlnay
remained in the Philippines because the marriage did not sit well
with Fujiki's parents. Two years later, Marinay met Maekara, also
a Japanese national. Without the first marriage being dissolved,
Marinay and Maekara got married. Maekara brought Marinay to
Japan. But because of physical abuse, Marinay left Maekara. Soon,
Marinay and Fujiki met and re-establish their relationship. With the
help of Fujiki, Marinay obtained a judgment from a family court !n
Japan which declared the marriage between Marinay and Maekara
void on ground of bigamy. Fujiki came to the Philippines and filed
with the RTC a petition entitled "Judicial Recognition of Foreign
Judgment (or Decree of Absolute Nullity of Marriage)." A few days
after the filing of the petition, the RTC dismissed the petition,
citing Section 2(a) of A.M. No. 02-11-10-SC (Rule on Declaration
of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages), which provides: "A petition for declaration of absolute
nullity of void marriage may be filed solely by the husband or the
wife." Is the dismissal of the petition correct?
No, the dismissal of the petition is not correct.
Fujiki is a real party-in-interest. He has the personality to file
the petition because the foreign judgment concerns his civil status as
married to Marinay.
A.M. No. 02-11-10-SC is not applicable in a petition for recognition
of foreign judgment relating to the status of marriage where one of the
parties is a foreigner. It does not also apply if the reason for the petition
is bigamy. (Fujiki v. Marinay, et al., G.R. No. 196049, June 26, 2013.)
252
or
RULE 40 TO RULE 56
APPEALS
1. What ls the nature of the right to appeal?
The right to appeal is not a natural right or part of due process. I
'ls merely a statutory privilege and may be exercised only in the r.Tifill[!_er
and in accordance with the provisions of the law or rule. (Ortiz v. CA,
_G.f:i:iio. 127393, Dec. 4, 1998.) · -----· - ·
The perfection of an appeal in the manner and within the period
prescribed by law is not only mandatory but jurisdictional. (Manila
Memorial Park Cemetery, Inc. v. CA, et al., G.R. No. 137122, Nov. 15,
2000.)
In Zaragoza v. Nobleza, G.R. No. 144560, May 13, 2004, the
Supreme Court reiterated the rule that the perfection of an appeal
within the statutory or reglementary period is not only mandatory but
also jurisdictional. The failure of a party to so perfect his appeal r~nd_ers
the decision final and executory. This rule is founded upon the principle
that the right to appeal is not part of due process of_ law but is a mere
statutory privilege to be exercised only in the manner and in ac~rdance
with the provisions of the law. The failure to perfect an. appeal . s not a
mere technicality as it raises a jurisdictional problem which depnves the
appellate court of jurisdiction over the appeal.
But in a few highly exceptional instances, the Supreme Court
allowed the relaxing of the rules on the application of the reglementary
periods of appeal, as follows:
In Ramos v. Bagasao, 96 SCRA 395, the delay of four d~ys in
the filing of a notice of appeal was excused because the q~est1oned
decision of the trial court was served upon the appellant at a time when
her counsel of record was already dead. Her new counsel ~uld only file
the appeal four days after the prescribed reglementary penod was over.
In Republic v. CA, 83 SCRA 453, the perfe~tion of an appeal by
the Republic was allowed despite the delay of six days to prevent a
253

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
gross miscarriage of justice since the Republic stood to lose hundreds
of hectares of land already titled in its name and had since devoted
for educational purposes.
In 0/acao v. NLRC, 177 SCRA 38, a tardy appeal was accepted
because the subject matter in issue had already been judicially settled
with finality in another case. Dismissing the appeal would have the
effect of ordering the appellant twice to make the same reparation to
the appellee,
2. What is the Rropersubject of an appeal?
f
An appeal may be taken from a udqrnent or final order that
completely disposes of the case or of a particular matter therein. (Rule
41, Sec. 1.)
3. - · What are the orders or judgments that cannot be ap-
pealedfrom?
No appeal may be taken from the following:
a) An order denying petition for relief or any similar motion
seeking relief from judgment (because the remedy against such an
order is a petition for cerliorari or prohibition under Rule 65);
b) An interlocutory order (because the remedy against such an
order is a petition for cerliorari or prohibition [or even mandamus] under
Rule 65); · that have to be settled in the course of trial. In this way, partial summary
c) An order disallowing or dismissing an appeal (because the
remedy against such an order is either certiorari or petition for relief);
d) An order denying a motion to set aside a judgment b~ con-
sent, confession or compromise on the ground of fraud, mistake or
duress. or any other ground vitiating consent (because the remedy
against a judgment based on compromise· may either be a petition for
relief from judgment, action to annul judgment, or a petition for certiorari
under Rule 65);
. e) An order of execution (because the remedy against such an
order is a petition for cerliorari under Rule 65);
f) A judgment or final order for. or ag_ainst one . or _m.cJre of
several parties or in separate claim~, count~rcla1m~. c~ms, and
third-party complaints, while the main case rs pendmg,~~rt
254
RULE 40 TO RUtE 56 - APPEALS
allows an a eal therefrom (because the aggrieved party must wait for
t e decision in the entire case, although the court may allow a separate
appeal, in which case a record on appeal is necessary); and
g) An order dismissing an action without prejudice (because
the remedy of the plaintiff, who is the party aggrieved by such dismissal,
is to refile his complaint; or he may file a petition for certiorari under
Rule 65).
The remedy common to all the above instances is certiorari,
prohibition, or mandamus under Rule 65. (Rule 41, Sec. 1.)
4. The trial court rendered a partial summary judgment.
May appeal be taken therefrom? G~ ! i.Jo A-PPc~I
)(~ ·. lO\AT JW.owt
In Prov. of Pangasinan v. CA, G.R. No.104266, March 31, 1993, it
was held that a partial summary judgment is interiocutory and not a final
judgment. Thus, a partial summary judgment shall be taken· together
with the judgment that the trial court may render in the entire case after.
a trial is conducted on the. . . controverted
•· . . . .. . . ..facts.
. .. ~~
'
As held in Guevarra v.·CA.124 SCRA297 (1983), an appeal from
a partial summary judgment shall be taken together with the judgment
that may be rendered in the entire case after a trial is conducted on the
material facts on which a substantial controversy exists. ·
The partial summary judgment should specify the disputed facts
judgment is more akin to a record of pretrial, an interlocutory order;
rather than a final judgment; and may be appealed only as part of an
appeal that may eventually be taken from the final judgment rendered
in the case. (Phil. Business Bank v. Chua, Nov. 15, 2010.) .
As explained in Gueverre v. CA, No. L-49017, Aug. 30, 1983, 124
SCRA 297, a partial summary judgment, being interlocutory, may not
lapse into finality even where no appeal is taken therefrom as it is not
a final judgment. · · .
• Girt:
• Hence, no appeal may be taken from a partial summary judgment,
except if the trial court will allow an appeal therefrom. Rule 41, Section
1 provides that no appeal shall be taken from a judgment or final
order in separate claims, counterclaims, cross-claims and third party-
'tf+v: complaints, while the main case is pending.~the court allows an
'J appealtherefrbm. .
/ 255
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Thus, by way of an exception, an appeal from a partia! sumr:na_ry
judgment may be made provided the court allows it. But where the
exception is applicable, a notice of appeal and record on appeal would
be necessary. (GSIS v. Philippine Village Hotel, Inc., G.R. No. 150922,
Sept. 21, 2004.)
'if
But the remedy against a summary judgment is appeal because
a summary judgment is a final judgment. It is only when the summary
judgment is partial that it is interlocutory.
5. X filed an complaint for collection of the sum of PS00,000
against H and W, husband and wife, with the Regional Trial Court.
ln.thelr.Answer; W.admitted the loan, but H denied liability·on the
ground that ..~!~"wW'~;l)~t·_being the administrat?r, had no a_ut~ority
x
to bind the ~oiif{.gar p~rtnership .. filed a motion for partial J~dg-
ment .: based on W's admission, .which the trial court grante_d m. a
partial judgment dated May 14, 1996. Counsel for Hand W received
a copy of the partial judgment on. May 21, 1996. Pre-trial and trial
were held as against H. On June. 2, 1997, the trial court rendered
judgment ordering H to pay the amount of the loan plus interest and
other amounts in accordance with Artic!e.~2.1. qf_the Family Code.
Counsel for. H and W received a copy of this judgment on June 6,
1997. On June 19, 1997, H, through counsel, filed a notice of appeal.
One June 25, 1997, W, through another counsel, appealed from both
judgments promulgated on May 14,.1996 and June 2, 1997 respec-
tively by filing her own notice of appeal. The trial court dismissed
W's appeal on the ground that it was filed out of time. Is the dis-
missal of W's appeal correct? When should the period to appeal
commence to run?
The partial judgment dated May 14, 1996 was rendered by the
trial court only with respect to one issue. It was, therefore, merely·
interlocutory because it leaves other things for the trial court to do and
does not decide with finality the rights and obligations of the parties:
Being interlocutory, the partial judgment is not appealable. It must only
be appealed together with the judgment dated June 2, 1997.
, :s,-)
. ifhe Reriod to appeal commenced to run on June 6, 1997, when
counsel for H and W received a. copy of the judgment dated June
2, 1997. Although W's appeal was filed beyond the 15-day period
[reckoned: from June 6, 1997], still her husband H filed hi,s notice of
appeal on June 19, 1997, or 13 days from June 6, 1997. H and W,
liaving · been jointly sued under a common cause of ac~~on, !~~
~ppe~I
256
RULE 40 TO RULE 56 .:.:... APPEALS
made by H inures to the benefit of W. The notice of appeal filed by
W was a superfluity, the appeal having been perfected earlier by her
husband. Hence, the dismissal of W's appeal is not correct.
/1t must also be noted that the ju~~-ments rendered by the trial court
in the problem presented above are not several judgments where there
could be multiple periods of finality.' (de Leon v. CA, et
al., G.R. No.
138884, June ·6, 2002.) · ·· · ·
6.' .What is the remedy against an order dismissing a com-
plaint in a civil action? . . _·· . ·: . ' . .
~ppeal is the remedy against an orderdlsmissinq acompJaint-in a
civil action because an order dismissing a complaint is a final order that
completely disposes of the case. As held in Heirs of Teofila and Eliza
Reterta v. Mores, et al., G.R: No. 1°59941, Aug. 17, 2011: "For-one, the
order that the petitioners really wanted to obtain relief from'-wa's the
order granting the respondents' hiotion to dismiss, ~ot the "denial ofthe
iifotioii"fot reconsldetatf6n:-The fact that the order granting the motion
to ttlsmiss wasaflnal order foflli~teby-completely-disposing-of"tlfe
case, leaving nothing more for the .trial courrto dn in--u,e aeuen; truly
called for an appeal, instead of cettloreti, as the correct remeay .... ----:-
I But in Palma v. Galvez, et al.-;-G:R. No. 165273, March 10, 2010,
it was held that where there are 'several defendants, one of whom files
a motion to dismiss which was ·granted by the court, but the case still
remains as to the other defendants, plaintiff's remedy against such
order of dismissal is certiorari under Rule 65 because, as stated in
Section 1 (f), Rule 41 of the 1997 Rules of Civil Procedure, no appeal
may be taken from a "judgment or. final order for or against one or more
of several parties xx x while the main-case is pending.~the court
allows an appeal therefrom." Since there is no appe'arora'ny plain,
speedy, and adequate remedy in the ordinary course of law, the special
civil action for certiorari is proper. . : ·
7. Plaintiff filed a complaint for specific· performance
against defendant city government with the RTC. In due time;
defendant city government filed its answer signed by a private
lawyer, not by the city legal officer, _Plaintiff filed a motion to declare
defendant in default arguing-that the city:legal officer is the only
:~:-:.-, officer authorized under Section 248 of 'the . Local Government
Code to represent the city. government· in -all' civil actions. Thus,
257·
-----:...-....__-IIWliiilllfD.WIIUl.mw..m111•w•m•w•m•w:•m•11r•:n:,-.1u-· -·M,
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
according to the plaintiff, the.answer was.a mere-scrap of.paper
and should not have been admitted ,in court for being an unsigned
pleading, the same not having been signed by a duly authorized
representative of the city. The trial court denied the motion. Plaintiff
moved for reconsideration, but its motion for reconsideration
was likewise denied. Plaintiff ·eievated the matter to the Court of
Appeals via a petition for certiorari under Rule 65 of the Rules of
Court. The CA dismissed the petition outright because the person
who signed the verification/certification on non-forum shopping did
not appear to be authorized by the petitioner (plaintiff in the case
below). Petitioner filed a motion for reconsideration, but its motion
• was denied. Petitioner filed with. the Supreme Court a petition for
certiorari under Rule 65. Is the petition for certiorari the proper
remedy?
®The resolutionsofttie'CAwhich petition.er'seeks to nullify are
orders of dismissal. An order of dismissal is a final order which is a
proper subject of an appeal, not certiorari. If what is being assailed is a
decision, final order or resolutionot'the CA, then appeal to the Supreme
Court is by meansof a verified petition for reviewon certiorari under Rule
45 of the R~les of Court. In cases where appeal is available, certiorari
will not prosper even if the groU11d therefor is grave abuse of discretion.
The existence and availability of the .right of appeal are antithetical.. to
the availability of the special civil action for certiorari, although where
it is shown that the appeal would be inadequate, slow, insufficient,
and will not promptly relieve a party from the injurious effects of the
order complained of, or where the appeal is inadequateor ineffectual,
the extraordinary writ of certiorari may be granted. (San Miguel Bukid
iHomeowners Association, Inc. v. City of Mandaluyong, et al., G.R. No.
153653, citing Magestrado v. People, G.R. No. 148072, July 10, 2007,
ehd Pesione v. 'CA, G.R. No. 165471, July 21, 2008.)
-- -- -~-- -·
8. BL filed with the RTC (Family Court) a petition for the
declaration of the presumptive death of her absent husband. After
publication and hearing, the court rendered judgment granting
the petition and declaring the presumptive death of BL's husband.
Within 15 days from receipt of the decision, the Office of the
Solicitor General filed a Notice of Appeal on behalf of the Republic.
The RTC gave due course to the Republic's appeal and ordered the
transmittal of the record of the case to the Court of Appeals. The
Court of Appeals denied the Rep':Jbfic's appeal and__af_fit~!d _ the
258
_
RULE 40 TO RULE·56 -APPEALS
decision-of.the-RTC. ls.the RTC correct In giving due course to the
appeal? Is the Court of Appeals correct in affinning the decision of
the RTC?
i~
@)the RTC is not correct giving due course to the -appeal.
Article 247 of the Family Coda· provides that judgment of the court
in summary judicial proceedings under the said Code is immediately
final and executory. Therefore, in summary judicial . proceedings
under the Family Code, among which is a proceeding for declaration
of presumptive death,, there is no reglementary period within which
to perfect an appeal because· judgments rendered in said summary
proceedings are immediatelyfinal and executory, · ·
The Court of Appeals erred in affirming the decision of the RTC.
An appellate court acquires no jurisdiction to review a judgment which,
bY. express provision of law, is immediatelyfinal and executory. There-
fore, thq Court of Appeals acqulred no
jurisdiction over the case and
should have dismissed the appeal outright on that ground. (Republic of
the Philippines v. Bermudez-Lorino, G.R. No. 160258, Jan. 1,9, 2005.).
P-tt•,m-ol The same ruling was reiterated in Republic of the Philippines v.
Tango, G.R. No.161062, July 31, 2009where it was held thatjuclgments
rendered in summary proceedings· under Article 238 of the Family
Code are immediatelyfinal and executo!Yas provided for in Article 247
thereof. It goes without saying, however, that an aggrieved party may
file a petition for certiorari to question abuse of discretion amounting to
~CU" lack of jurisdiction. Such petition should be filed in the Court of Appeals
~ltrn( in accordancewith the Doctrine of Hierarchy of Courts. To be sure, even
~ if the Supreme Court's original jurisdiction to issue a writ of certiorari is
concurrent with the RTCs and the Court of Appeals in certain cases,
such concurrence does not sanction an unrestricted freedom of choice
of court forum. F.rom the decision of the Court of Ap~eals, the losing
party may then file a petition for review on certiorari under Rule 45 of
the Rules of Court with the Supreme Court. This is because the errors
which the court may commit in the exercise of jurisdiction are merely
errors of judgment which are the proper subject of an appeal.
9. What Is the remedy against an order disallowing or
dismissing a third-party complaint?
: Appeal is the remeaY, because an order dismissing a third-party
complaint finally disposes of defendant's right to imRlead the third-party.
(De Dios v. Bafagot, G.R. No. L:24103, Aug: to. 1967.)
259

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
B~t appeal from an order disallowing or dismissing a third-party
complaint should be with the permission of the trial court as stated in
Section 1 (f), Rule 41.
,. 0. The accused is charged with less serious physical lnJu·
'ries in an Information filed with the MTC. Before arraignment, the
accused filed a motion to quash alleging that the 'lntcrmatlcn filed
against him is patently irregular and fatally flawed. The MTC denied
his motion to quash. The accused filed a motion for reconsidera-
tion, but the MTC denied it likewise: In due time, the accused filed· a for annulment of the extrajudicial sale before the expiration of the
petition for certiorari under Rule 65 with the RTC, a'neging 'that the
MTC committed grave abused of discretion in denying his motion
to quash, The RTC dismissed the petition. What is the remedy of the
accused against the order of the RTC dismissing his petition?
, . . . The remedy of the accused is to E.l::meal the. RTC order of dis-
miss~! to tlie Court of Appeals pursuar]t to Secti_on ,2,. Rui~ .i 1, by fiHng
a notice of appeal with the RTC,. The remedy is an ordinary appeal
because the petition for certiorari filed with the RTC is an original action,
the dismissal of which is a final order that completely disposes of the .
petition. (Galzote v. - Briones and People of the Philippines, G.R. No.
•1646832,·Sept. 14, 2011.)
' ~ But if the · questions to be raised are pure questions of law, ~it
should be a direct appeal to the· Supreme Court by petition for.'review
on certiorari.
,,t
11. Because of the failure of Spouses A and L to pay their loan
of 51.5 Million which was secured by a mortgage of a land covered
by TCT No. 29607, the Metropolitan Bank & Trust Co. foreclosed the
r~~! estate mortgage extrajud_icially. The mortgaged property was
sold at public auction on January 8, 1998 to the bank itself as the
highest bidder. A certificate of sale was executedby the sheriff in
favor of the bank on January 14, ·1995 and was registered with the
Register of Deeds on January 27, 1998. On December 29, 1998; the
bank wrote Spouses A and L that the one-year redemption period of
the property would expire on January 27, 1999. Instead of redeem·
Ing the property, Spouses A and L filed with the RTC on Ja·nuary
19, 1999 a complaint against the bank and the sheriff for annulment
of the extrajudicial sale. In their complaint, docketed as Civil.C~se
No: ,~_54, the spouses alleged that the bank bloated their obligation
by including excessive interests, charges, attorney's fee, etc. After
260
.. ,,,_.
RULE 40 TO RULE 56 - APPEALS
the expiration of th_~ one-year redemption period the bank consoli-
dated its ownership over the foreclosed property. TCT No. 29607
was then cancelled, and the Register of Deeds issued TCT No.
44.~68 in the name of the bank. On July 23, 1999, the bank filed a
pei!tion for writ of possession, docketed as LRC Case No. 3. The
pe~iti,o~ ~a~ raffled off to the same ~TC. Spouses A and L opposed
the p,etit1on on the following grounds: (a) Civil Case No. 3454 consti-
~u.ted prejudicial question which warranted the suspension of LRC
Case No. 3; (b) the filing of their complaint in Civil Case No. 3454
redemption period was equivalent to a formal offer to redeem and
had the effect of.preserving their right to redeem.
a) Does ~jvil ~~s-~ -~-o._ _3.4_54 constitute a _prejudicial ques-
tion?
_ b) Is the filing of their complaint-in Civil Case No. 3454 for
annulment of the extrajudicial sale before the expiration of the
redemption period equivalent to a formal offer to redeem and does
·. .,
1t. have
. '. . ..
the effect of .preserving their
. '
right to redeem?
'
. .. . ~ .
c) May the court issue thewrit of possession notwithstand-
ing -the pendency of the action for annulment of the extrajudicial
sale?·
d) ' If the court issues the writ of possession and Spouses
A and L wants to assail the issuance of said writ, what is their
·:.··
remedy - ordinary appeal or certiorari under Rule 65?
·. ,,''
. a) Civil Case No.·. '3454 ~ioes not constitute a. prejudicial
question. A prejudicial question comes into play in a situation where
acivll a~ti9n and a criminal action are both pending, and there· exists'
ii). the 'civil action an issue that must be pre-emptively resolved. before
the criminal. action may proceed. In the problem presented, th'ere is'
no criminal action. Furthermore, the issue in Civil Case No. 3454 is
whether-the extrajudicial forectosure is valid: while in LRC CaseNo. 3,
the issue is whether the bank is entitled to the possession of the pro-
perty after the expiration of the period of redemption.
' · b) · The filing by Spouses A and L of a complaint for annulment
of theextrejudlcial sale before the expiration of the redemption period
ts not equivalent to a formal offer to redeem, and it does not have the
effect of preserving their right to r~d;e.eni lh other words, the filing pf
261
 QUESTIONS AND ANSWERS IN RULE 40 TO R~L.E' 56.-APPEALS
REMEDIAL LAW

the. said complaint for annulment does not suspend the running of the c) Rule 42 (petition for review; from the Regional Trial Court to
penod to redeem. · · the Court of Appeals);
. [At this point, the case of Bel[sario v. /AC, 165 SCRA 101, may be d} Rule 43 (petition for review; from quasi-judicial aqencies to
pornted out for comparison. In that case, what was filed was a complaint the Court of Appeals); and ·.. '
to enforce the repurchase of the foreclosed property (not a complaint
for annulment of the extrajudicial sale). The SC held in Belisario that e) Rule.45 (petition for review on certiorari; from the Court of
the filing of a complaint to enforce the repurchase of the foreclosed Appeals, the' Sandlganbayan, the Court of Tax Appeals, or the Regional
property has the effect of preserving the right of the mortgagors to Trial Courts to the Supreme Court).
redeem.] . . The appeal under Rule 41 is brought to the Court of Appeals on
c~ Yes, the court may issue the writ of possession notwith- qO'estions of fact or mixed questions of fact and law. The appeal under
standing the pendency of the action for annulment ofthe extrajudiciat Rule 42 is brougtit to the Court of Appeals on questions of fact, of law, or
sale.· The proceedings in a petition for the issuance of a writ of posses- mixed questions of fact and law. The appeal under Rule 43 may involve
sion, after the· lapse· of the·-redemption · period;·is summary in nature. questions of fact.ot law,·OF·mixed·questions-offact and-law. But the
The trial court is mandated to issue the writ of possession upon the appeal under Rule 45 is filed with the Supreme Court only on questions
expiration of the period for redemption without the redemptioner having of law. (Latorre v. Latorre, G.R. No. '183926,
,, March 29, 2010.)
redeemed the property. But there are instances when appeal to the Supreme Court by
[Note: Section 7 of Act No. 3135, as amended-by Act No. 4118, means of a ~titian .for. review on certiorari under Rule 45 may also raise
provides that in case of extrajudicial foreclosure of mortgage, the court questions. o~- and these are. · . .
may issue as a matter of course a writ of possession in favor of the
~ a) when the @:nclusioJi) is a finding grounded entirely on
purchaser even during the redemption period, provided that a proper
speculations, surmises, or conjectures; ·
petition has been filed and a bond is approved. If the redemption period
has already expired, the court may issue the writ of possession without A- b) when the~ma1de .is manifestly ~bsurd, mistak~n. or
bond.] i~sible;
d) If the court issues the writ of possession, and Spouses A ~ c) when there is@ave abuse of discretlon)in the appreciation
and L want to assail the issuance of said writ, their remedy is appeal by o~s;
writ of error [writ of error simply means ordinary appeal]. Assuming that
the trial court erred in issuing the writ of possession, its error is an error
t,A d) when the. judgment i~ premised on mjsapprehensjnn of··:,···.· ;,
@£ts; and · ~: ~ \>
of judgment correctible only by ordinary appeal. Certiorari under Rule
65 is not the proper remedy. (Pahang v. Vestil, et al., G.R. No. 148595,
G e) when the~ndings of fac@are contrary to the admjssions of ' · ~,
July 12, 2004.) · · -··-- ··· ~s. (Rema/ante v. Tibe, et al., G.R. No. L-59514, Feb. 25, 1988)
Also, questions of fact or mixed questions of fact anjj of law may
12. What are the modes of appeal? be raised in the following:
The modes of appeal are specified in: a) In Writ of Kalikasan cases, any party may appeal to the
Supreme Court by petition for review on certiorari under Rule 45. The
a) Rule 40 {ordinary appeal; from the Municipal Trial Court to
. appeal may raise questions of fact, of law, or mixed questions of fact
the Regional Trial Court);
andlaw;and ·
_ b) Rule 41 {ordinary appeal; from the Regional Trial Court to
b) Appeal in Habeas Data-·or Writ of Amparo cases shall be
the Court of Appeals};
taken by filing a petition for review on certiorari under Rule 45 where
262
263
 RU E ~O TO RU E - PPEALS
OU AN W IIJ • • #

L LAW

As declared by the Supreme Court in Oedusm v. CA. et el..

t ct. ul I w, r ml _d qu lion of fact and law may be
G .R. No. 159116 Sepf. 30. 2009, them i" Ion r an'j JU ifica on
for ;:31fowino tran fer of erroneous ,3ppe;:;lr- from one court o h<J other.
rnuch less for toleratin continued , norance or the law on a
3. at l th mod of appeal from decision of Regional
Trial Cou J
ttting a peclal court ? Where the accused Is a public officer oCGupying position lower
~ qi than Salary Grade 21, and he commits an offense in relation o his
office, jurisdiction over the offense shall be vested In the RTC or lfTC
pursuant lo their respective jurisdictions. In Quile te v. Poople. G.R.
No. 180334, Feb, 18, 2009, the accused was a low-rankjng govemmenl
omployee who was charged with maivsrsauon. After he was convicted
by lhe RTC, he appealed to the CA~ HELO:.Accusoo filoo 1~ Qpe,I i
tho wrong court. The Sandiganba'jan shall exercise sxclusrvs appcilate
Jurisdiction over final judgments. resolutions. or orders or reg onal r~I
courts whether in the exercise of their own original junsciction or of their
appellate jurisdiction.
In Balaba v. People, G.R. No, 169519, July 17. 2009. the
accused, a low-ranking government employee. was also charged with
malversation. He was convicted by the RTC. In his notice of appeal.
e) :sm.ing as special commercial courts: "1Ll \J.5 he specified the CA as the court to which he was taking his appeal.
The Supreme Court reiterated. its pronouncement in MeJencicn v.
A11 o scrsions and final orders of RTC's acting as special commer-
Sandiganbayan, G.R. No. 150684, June 12. 2008, that an "error rn
ci.31 courts in corporat - renabuitauon and intra-corporate controversies
designating the appellate court is not fatal to the appeal. However, th
und r RA E799 r · appealable to the CA through a petition for review
correction in designating the proper appellate court should be made
uno -r Ru1 .. ~'.;. (A.M. No. 04-9-07-SC (lntracorporate Controversies;
within 'the 15-day period to appeal," If the correction is not made wurun
,BP/ FfimiJy StJvings Bst!k, =» _Pryce Geses, Inc., et al., G.R. {'lo. the said 15-day period, the second paragraph of Section 2. Rule 50
1883E5, June 29, 2011.) of the 1997 Rules of Civil Procedure will apply. It states: ..An appeaJ
.(.
"!'~~ . erroneously taken to the Court of Appeals shallnotb_E: ~~~~~erred to the
~ ·I'-' 4, What should the Coun. of Appeals do to an appeal erro- appropriate court but shall be dismissed outright"
neou ty brought to it?
In Estarija v. People, et al., G.R. No. 173990, Oct. 27, 2009, the
The eoun· of Appaa s must dismiss it outright. Section 2,. Rule 50 accused, a public officer occupying a position lower than Salary Grade
provides in part: -1-.n appear erroneously taken to the Court of Appeals 27, was charged with violation of the Anti-Graft and Corrupt Practices
shall not transferred to the appropriate court but ,shall be dismissed Act. He was convicted by the RTC and was meted a straight penalty
outngnt.• of seven years. The CA, to which Estarija brought his appeal, affirmed
Section 2, Rule 50 al so provides: "An appeal under Rule 41 the judgment of the RTC but modified the sentence to six years a~d
taken from the Regional Trial Court to the Court of Appeals .raising only one month to nine years of imprisonment. HELD: The CA erred in
questions of law shall be dismissed, issues purely of law not bein~ enteljain_ipg Jh~ . appeal. Altp94gh the penalty imposed oy tfie RTC
reviewable by said court. Similarly, an appeal by notice of appeal instead is erroneous as it did not apply the lndeterrrnnale Sentence Law. the
of by petition for review from the appellate judgment of a Regional Trial decision. ~f the RTC has long become final and cannot be modified
Court shall be dismissed." anymore.

265
 ~\~~. . ' QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Take note, however, of the case of/Filomena Villanueva v. People,
G.R. No. 188630, Feb. 23, 2011. Filomena was the assistant regional
director of the Cooperative Development Authority, a position lower
than Salary Grade 27. She was charged before the M~nicipal Circuit
Trial Court with violation of R.A. 6713 (Code of Conduct and Ethical"-
Standards for Public Officials and Employees). The trial court found her
<,
J,
guilty and imposed upon her the penalty of five years of imprisonment
and disqualification to hold office. She appealed to the RTC which
affirmed the MCTC decision.lShe then filed a petition for review before
the CA, but the CA dismissed the petition on the ground that it is the
Sandiganbayan that has exclusive jurisdiction over the petition. She
filed a petition for review on cerliorari with the SC. The SC ruled: There
is no question that Filomena took the wrong procedure. She should
have appealed the RTC decision to the Sandiganbayan. Under R.A.
8249, the Sandiganbayan shall exercise exclusive appellate jurisdiction
over final judgments of regional trial courts whether in ttie exercise
of their own original jurisdiction or of their appellate jurisdiction.
-+ While the SC said that the CA was correct in dismissin the a peal
for lack of jurisdiction, yet because of the eculiar circu e of
the case, Filomena should be given a chance to bring· her case to
the Sandiganbayan. (These peculiar. circumstances were: (a) the
administrative case against Filomena was eventually decided by the
CA in her favor; (b) Filomena was shown to have paid the loan which
became the subject of the criminal case; (c) there was no sufficient
showing that Filomena exerted undue influence in obtaining the loan;
(d) the civil case -against Filomena's husband, which was intertwined
with the criminal case filed against her, was decided in favor of her
husband, Thus, the SC resolved to suspend the rules to give Filomena
a chance to seek relief from the Sandiganbayan by filing a petition
for review within ten days om receipt of the SC's decision. The SC,
however, said that it does" not countenance the inexcusable negligence
committed by Filomena's former counsel. ·--·-·
15. When does a question of law or a question of fact exist?
Microsoft Corp. v. Maxicorp, Inc., G.R. No.·140946, Sept.13, 2004
explains it in these words: A question of law exists when the doubt
or difference centers on what the law is on a certain state of facts. A
question of fact exists if the doubt centers on the truth or falsity of the
alleged facts. There is a. question of law if the issue raised is capable
of being resolved without need of reviewing the probative value of the
266
RULE 40 TO RULE 56 - APPEALS
evid~nce. The res?lution of the issue must rest solely on what the law
provides on the given set of circumstances. Once the issue invites a
review of the evi?ence presented, -the question posed is one of fact.
If the 9uery requires a re-evaluc!tion of the _credibility of witnesses. or i
the existence or relevance of.surrounding circumstances and their rela-
tion to each other, the issue in that query if factual. (See also: Eastern I
11
Shipping Lines, Inc. v. BPI/MS Insurance Corp., et al., G.R. No.-193986;
Jan. 15, 2014.) · . ,. . . . _
·. l ..
I
6. Suppose the appellant appeals from the judgment of .the I
RTC to the CA under Rule 41 by filing a notice of appeal with the
RTC, but his appeal raises pure questions of law, may the CA take
cognizance of the appeal? ·
I.
®In Heirs of Nicolas S. Cabigas, 'ere. v. Limbeco. et al., G.R.. No.
175291, July 27, 201~, it was held that where a litigant files an ordin~ry
appeal with the CA that raises only questions of law, Section 2, Rule 50
of the Rules of Court expressly mandates that the CA should dismiss
the appeal outright as the appeal is not reviewable by that court! When
there is no dispufe as to the'facts.fne question of whether or not the
conclusion drawn from thesefacts is correct is a question of law/When
the petitioners assailed the summary judgment, they were in fact
questioning the conclusions drawn by the RTC from the undisputed
facts, and raising a question_ ?f __la_~·. . --··· _ -·· ..
In Cabigas, University_gf.G.~Q.u. a.ani.1~.d .(UCB), AWG, Petrosa •. the
defendants in the case below, filed a motion for summary judgment,
admitting as true the allegations in the complaint, but claiming that
the plaintiffs had no legal right to the property in question. The RTC
I Cebu City granted the motion and dismissed the complaint. Plaintiffs
appealed. to the CA by filing a notice of appeal with the R.TC. UCB et
·I
I
at.; filed a motion to dismiss appeal, claiming' that plaintiffs raised only
questions of law in their appeal; thus, they should have filed an appeal
by 'certioreri with the SC, and not an ordinary appeal with the CA. The
·· CA dismissed the appeal, ruling that plaintiffs (now petitioners) should
have filed a petition for review on certiorari under Rule 45. The SC
affirmed the CA's ruling.
The following cases.likewise involve pure questions of law:
- a) Cucueco v. CA, et al., G.R. No: 139278, Oct. 25, 2004. ~es-
pondent's appeal calls for a· detennination of whether the pleadings
267
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
filed by the parties indeed tendered a genuine issue as to the material
facts. In order to resolve this issue, the appellate court need only to look
into the pleadings, depositions, admissions, and affidavits submitted
by the .. respective parties without gC?ing_ into the JrLJth or falsity of
such documents. It must be noted that under Section 1, Rule 35,. of
the Rules of Court, a trial court may grant a summary judgment if, on
motion.of either party, there appears from the pleadings, depositions,
admissions, and affidavits that no important issues of fact are involved,
except the amount of damages. Trial courts have limited authority to
render summary judgments and may do so only when there is clearly
nq genuine issue as to any material fact. In other words, in a motion
for summary. judgment, the crucial question is: are the issues raised
in the pleadings genuine, sham or fictitious, as shown by af'.fJ.~avits,
depositions or admissions accompanying the motion? Any review by the
appellate court of the propriety of the summary juc;Jgment rendered by
the trial court based on these pleadings would not involve an evaluation
of the probative value of any evidence, but would only limit itself to the
inquiry of whether the law was properly applied given the facts and
these supporting documents. Therefore, what would inevitably arise
from such a review are pure questions of law, and not questions of fact,
which are not proper in an ordinary appeal under Rule· 41, but should
be raised by way of a petition for review on certiorari under Rule 45. ·
b) St. Mary of the Woods School, Inc., et al. v. Office of the
Registry of Deeds of Makati City, et al., G.R. Nos. 174290, 176116, Jan.
a
20, 2009 teaches that in motion to dismiss based on failure to state
a· cause' ofaction; there cannot be' ariy"q't.i"estion of fact or "doubt or dif-
ference as to the truth of falsehood of facts" simply because tfiere are
no findings of fact in. the first place. VIJha.t the trial court merely ~oes is
to apply the law to the facts as alleged in the complaint; assuming such
allegations· to be true. If follows then .that any appeal therefrom could
only raise questions of law or "doubt or controversy as to what·the-la:J
is on a certain state of.facts." Therefore, a decision dismissing a com-
plaint based on failure to state a cause of action necessarily precludes
a review of the same decision on questions of fact. One is the legal and
logical opposite of the other.
c) In Sevilleno, et al. v. Carilo, et al., G.R. No. 146454, Sept.
14, 2007, the RTC motu proprio issued an order dismissing the case for
lack of jurisdiction over the subject matter of the case. Petitioners filed
a motion for reconsideration but it was 'denied by the RTC in an Order
268
l
RULE 40 TO RU.LE 56 - APPEALS
dated May 18'. 1999. ~etitioners interposed an appeal to the Court of
Appeals, but it was dismissed for being the wrong mode of appeal.
The appellate court held that since the issue being raised is whether
the RTC has jurisdiction over the subject matter of the case, which is a
question of law, the appeal should have been elevated to the Supreme
Court under Rule 45 of the 1997 Rules of Civil Procedure as amended.
HELD: It is not disputed that the issue brought by petitioners to 'the-Court
of Appeals involves the jurisdiction of the RTC over the subject matter
of the case. We h'ave a long standing rule that a court's jurisdiction over
0
the subject matter of an action is conferred only by the consutunon or
by statute. Otherwise put, jurisdiction· of a court over the subject matter
of the action is a matter bf law. Consequently, issues which'deal with
the jurisdiction of a court over the subject matter of a case are RUre
questions of l~w. ~s· .Petiti~ners' appeal solely involves a question of
law, they should have.directly taken their appeal to the Supreme Court
by·filing a petition for review on certiora_ri under Rule 45/iiot an ordina·ty
appeal with the Court-of Appeals under, Rule 4~. · · -
Note that direct appeal to the Supreme Court from the decision of
a Regional Trial Court on questions of law has to be through a· petition
for review on .. certiorari. (Sps.' Dadizon v. CA, et al., G.R. No. f59116,
Sept. 30, 2009) ' .
7 How is ordinary appealtaken?
. ,. .. An 'ordinary appeal is taken by ding a notice of appeal with the
court which rendered the judgment or final order appealed from and
~erving a copy thereof upon the adverse party.
... "~· ,, .. -;-·- - .
18. What should the ~~tice·o~ appealindicate? .
If the appeal is from the judgment or final order rendered ·by-the
Municipal Trial Court, the· notice of appeal should indicate: (a)' the
parties to the appeal; (b the judgment or final order or part thereof
appealed from; (c) the material dates showing timeliness of the appeal.
(Sec. 3, Rule 40.)
If the appeal is from the judgment or final ord~r ~endered by ~he
Regional Trial Court, the notice of appeal should: (a) indicate the parties
to the appeal; (b) specify the judgment ?r
final order ~r part thereo!
appealed from; (c) spe~ify the court to which th_e a~peal rs be1rg taken,
and (d) state the material dates showinq the timeliness of the appeal.
(Sec. 5, Rule 41.)
269

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
The adverse party shall be served with a copy of the notice of
appeal.
I of surname or cancellation of birth record In the civil registry under
19. In ordinary appeal, Is the filing of a motion for reconsld-
eration or new trial a precondition to the perfection of the appeal?
No But there are cases where the filing of a motion for recon-
sidera ion or new trial is required so that the appeal may be allowed,
thus: © mqs involving cancellation of birth record and change of surname in the
~o appeal from the decision in cases involving custody of minors
and 'writ of habeas corpus in relation to custody of minors shall be
ajlowed.~the appellant has filed a motion for reconsideration or
new trial within 15 days from notice of judgment. (Sec. 19, A.M. No.
03-04-04-SC, Rule on Custody of Minors and Writ of l:fabeas· Corpus in
Relation to Custody of Minors, Effective May 15, 2003.)
_ .- ~) 1!1_ 'Pnnul~ent of void~le marriages, fc1arationof absolute
nullity of void mamages, an~al separation' no appeal from the
decision shall be allowed unless the appellant has filed a motion for
reconsideration or new trial within 15 days from notice of judgment.
(Sec. '20, A.M. 02-11-10-SC, March 15, 2003; Sec. 17, A.M. 02-11-11-
SC, March 15, 2003.)
20. In ordinary appeal, is record on appeal necessary?
. Record on_ appeal is not necessa m ordina af? eal,~t in
special proceedings and other cases of multiple or separate appeals.
(Rule 40, Sec. 3; Rule 41, Sec. 2.)
An order appointing an administrator of a deceased person's
estate is a final determination of the rights of the parties in connection
wift! the administration, management, and settlement of the decedent's
estate; hence, it is a final order and thus appealable. In special proceed-
ings, such as appointment of an administrator, record on appeal is
required and is to be filed, along with the notice of appeal, within 30 days
from notice of the judgment or final order appealed from.
Separate appeals must be with the permission of the trial court as
stated in Section 1 (f), Rule 41.
~
»:pendency
Contempt proceedings are not among the instances where a
record on appeal is required to perfect an appeal. (Cortes v. Judge
Felino Banga/an, A.M. No. MTJ-97~1129, Jan. 19, 2000.)
270
mr: II\ll!
o
RULE 4 TO RULE 56 - APPEALS
:I
21·
~ectlon 3, Ru~e 40 and Section 2, Rule 41 require a record
on appea 1 n special proceedings. Proceedings involving change
Rule 103 and Rule 108, respectively, are special proceedings. Do
these proceedings require a record on appeal?
In R~pub/ic of the Philippines v. Nishina, G.R. No. 186053, Nov.
'!
~ 5, 2.010, was held th?t record on appeal is not necessary ln proceed-
civil registry.
Under Section 1, Rule 109 of the Rules of Court, the order or
judgment in special proceedings which may be the subject of an appeal
is-an-order.or.judgment-that: ---- .. __ .. .. __ .. _ _ .. ___
(a}° Allows-cir&saliowsa-wm=- - ---·-- ·- ··-··- - .. _
- - • - - • t '
(b) Determines who are the lawful heirs of a deceased person,
or the .distributive share of the estate to which such person is entitled;
(c) Allow? or disallows. in whole or in part. any claim against the
estate of a deceased person, or any claim presented on behalf of the
'estate in offset to a claim against it; ·.._.'
(d) Settles the account of an executor, administrator, trustee or
guardian;
(e) Constitutes, in proceedings relating to the settlement of
the estate of a deceased person, or the administration of a trustee or
guardian, ~etermination in the lower court of the rights of the party
appealing~t that no appeal shall be allowed from the appointment
of a special administrator; and
(f) Is the final order or judgment rendered in the case, and
affects the substantial rights of the person appealing unless it be an
order granti.ng or denying a motion for a new trial or for reconsideration.
he above-quoted rule contemP-lates multi12.Je a1meals during the
of special pro eedings. A record on appeal - in ad~i~ion
to the notice of appeal - is thus required to be filed as the original
1~ ~
,.~
records of the case should remain with the trial court to enable the rest
of the case to proceed in the event that a separate and distinct issue is
resolved by said court and held to be final. , .
271
I

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Thus, an order appointing an administrator of a deceased
person's estate is a final determination of the rights of the parties in
connection with the administration, managementand settlementof the
decedent's estate; hence, it is a final order and thus appealable. In
speciaJ proceedings, such as appointment of an administrator,record
on appeal is required and is to be filed, along with the notice of appeal,
within 30 days from notice of the judgment or final order appealedfrom.
(Zayco, et al. v. Hinlo Jr., G.R. No. 170243, April 16, 2008.)
Take note, however, that no appeal shall be allowed from the
appointment of a special administrator.The remedy against an order
appointing a special administrator is a petition for certiorari under Rule
65, but it must be shown that in issuing the order appointing a special
administrator, the probate court acted without jurisdiction, or in excess
of jurisdiction, or without grave abuse of discretionamountingto lack or
excess of jurisdictiQil.
. Habeas corpus is a special proceeding under ·Rule 102.
Is record on appeal required in habeas corpus proceedings?
. @ Section 39 of B.P. 129, as amended, provides that no record
on appear shall be required to take an appearin habeas COIJ!.US cases,
although habeas corpus is a special proceedingunder Rule 102.
23. Give examples of cases of multiple appeals.
The following are examples of cases of multiple appeals:
a) In an action. for expro12rialioh- where the adverse party
-may appeal from the order of expropriation; and, later, he may also
appeal from the judgment fixing the just compensationof the property
expropriated based on the commissioners' report. (Rule 67, Secs. 4
and 8.)
b) In an action for foreclosure of real estate mortgage-where
the adverse party may appeal from the judgment on foreclosure; and 'i-.
1
later, he may also appeal from the order confirming the sale. (Rule 68; .:
Secs. 2 and 3.)
c) In an action for partition - where the adverse party may
appeal from the order of partition; and later, he may also appeal from
the judgment of partition. (Rule 69, Secs. 2 and 11.) · 2003; Sec. 17, A.M. 02-11-11~SC, March _15, 2003.)
272
RULE 40 TO RULE 56 -APPEALS
24. What is the period for perfecting an ordinary appeal?
The following are the periodsfor perfectingan ordinary appeal:
a) If the appeal is~ notice of appeaf, the appellant must file
a notice of appeal within 15 days from notice of the judgment or final
order appealed from; ·
· b) If the appeal is ey noticeof appealand record on appeal, the
appellant must file a notice of appeal and record on appeal within 30
days from notice of the judgmentor final order appealedfrom;
c) An appeal in habeas corpus cases shall be taken within 48
hours from notice of the judgment or final order appealed from. (Sec.
39, B.P. Big. 129.) -~ -·,
. .
d) An appeal from judgment or final order in am,:taro cases
shall be taken to the SupremeCourt under Rule 45 within five working
days from the date of notice of the adversejudgment.The appeal may
raise questions offact or law or both. (A.M. 07-9-12-SC dated Sept. 25,
2007;) and · · . ·~i.:.
.. e) Similarly, an apReal from judgment or final order in ha~eas: ;,
data·cases shall be taken to the SupremeCourt under Rule 45 witliin. '\ .,
five ..:.,orking days from the date of notice of the adversejudgment. Tti.e \. · :.,. .:
appeal may raise questions of fact or law or both. (A.M. 08-1-16~?G',.-. ·., ;,,, : ,
dated Jan. 22, 2008.) _., .... -. __ ... <·,.. ·i.,.. ··
: ·. I>
Take note that in cases involving custody of minorsrand w it ofi~1.,
habeas corpus in relationto custodyof minor , an aggrievedparty may
appeal from the decision by filing a noticeof appealwithin 15 days f!Q.[D
notice of the denial of the motion for reconsjderatjon or new trial and
serving a copy thereof on the adverse ~arty. (Sec. 19, 'AM.. 03-04-~4-
SC, Rule on Custody of Minors· and Wnt of Habeas Corpus in Relation
to Custody of Minors, Effective May 15, 2003.) ·
In annulment of voidable marriages, declaration of absolute
-nullity of void marriage's, and legal separation/the aggrieved party or
the Solicitor General may appeal from the decision by ~ling a notice
of appeal within 15 days from notice of denial of the motion for r~con-
sideration or new trial. The appellant.shall serve a copy of the notice of
appeal upon the adverse party. (Sec. _20, A.M. 0?-11-10-SC, March 15,
273
 .... ~
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
But, a ~ for extension of time to file the notice of appeal is no
aDowed. (Phihppme Commercial and Industrial Bank v. Ortiz, G.R. No.
L-49223, May 29, 1987 [150 SCRA 380).)
25:
I~ an order dated February 12, 1998, the Regional Trial
Court dismissed plaintiffs' complaint on the ground that the action
had already prescribed. Plaintiffs received a copy of the order of
dismissal on March 3, 1998. On March 18, 1998 - or, on the 15th
~ - ther filed a motion for reconsideration. On July 1, 1998, the
trial court issued an order denying (or dismissing) plaintiffs' motion
for recorisideration. Plaintiffs received a copy of this order on July
22, 1998. On Juty 27, 1998, plaintiffs filed a notice of appeal. Was the
notice of appeal seasonabty filed?
,@
In Neypes, et al. v. CA, et al., G.R. No. 141524, Sept. 14, 2005,
the Supreme Court, En Banc, held that
rJ',l
:i'
* a). th~ July 1, 1998 Order denying plaintiffs' Motion for
Reconsideration - not the February 12, 1998 Order dismissing
~ r> the complaint - is the "final order" which triggers the start of the
_j; /t / 15-day r~le~entary period to _a~peal. Thus, plai~!!!f~asonaBly
f fl' filed their notice of appeal within the fresh period.of 15 'daY§,
~ -. , counted from July; 22, 1998 (the date they received the July 1,
'l~
1
~ 1· 1998 ord~r. c!~nyin~ "" motio~ for reco~sideration ).
/",,-. b) a party litigant may either file his notice of appeal within
~ 15 days from receipt of the Regional Trial Court's decision or file
it within 15 days from receipt of the order (the "final order") deny-
ing his motion for new trial or motion for reconsideration. ~
new 1S:Oay Pfili_od~}'. t>e availed of onl if_eitfier motion is filea;
othe · , the decision t>ecomes final and executory after ffie
laP5!! of the original appeal period provided in Rule A 1, Section 3.
Explaining its ruling, the Supreme Court said:
"In the rules governing appeals to it and to the Court of
Appeals, particularfy Rules 42, 43 anl 45, the Court allows
extension of time, based on justifiable and compelling reasons,
. _ fqr_partiesJ.o_filatheir:.appeals. These extensions may consist of
15 days or more.
To standardize the appeal periods provided in the Rules and
to afford litigants fair opportunity to appeal their cases, the Court
274
... -
RULE 40 TO RULE 56 - APPEALS
deems it p~actical to allow a fresh period of 15 days within which to
file the notice of appeal in the Regional Trial Court, counted from
receipt of the order dismissing a motion for a new trial or motion
for reconsideration.
i
Henceforth, this 'fresh period rule' shall also apply to Rule 40 I !
governing appeals from the Municipal Trial Courts to the Regional
Trial Courts; Rule 42 on petitions for review from the Regional Trial
Courts to the Court of Appeals; Rule 43 on appeals from quasi-
judicial agencies to the Court of Appeals and Rule 45 governing
appeals by certiorari to the Supreme Court. The new rule aims
to regiment or make the appeal period uniform, to be counted
from receipt of the order denying the motion for new trial, motion
for reconsideration (whether full or partial) or any final order or
resolution." 1;:. .rta01 ,,.0~11::a ~ ?IDcbJ'! ~'}Y!tt, ••
Ii In appeals in special proceedings, a record on appeal is required.
The notice of appeal and the record on apP.eal should both be file<P
within 30 days from receipt of the notice of judgment or final order.
Pursuant to Neypes v. CA, the 30-day period to file the notice of appeal
and record on appeal should be reckoned from the receipt of the order
denying the motion for new trial or motion for reconsideration. a_ayco,
et al. v. Hinlo Jr., G.R. No. 170243, April 16, 2008.)
In Yu v. Samson-Tatad, et al., G.R. No. 170979, Feb. 9, 2011,
the Supreme Court ruled that ·its.pronouncement of a-"fresh period" to
appeal in Neypes, et al. v. CA, et al., G.R. No ... 141524, Sept. 14, 2005,
should equally apply to the ~riod for aP.~eal in criminal cases under
Sectio 6, Rule 122 of the Revised Rules of Criminal Procedure.
But the "fresh period rule" laid down in Neypes is not applicable
in appeals in-administrative cases:· (San Lorenzo Ruiz Builders & Dev.
Corp., Inc., et al. v. Bayang, G.R. No. 194702, April 20, 2015.)
26. The appellant files his notice of appeal within the time
for perfecting an appeal, but the trial court Issues an order denying
the notice of appeal. May appellant still question the order after 15
days from his receipt of a copy thereof?
~ more. While the denial of appellant's notice of appeal is
erroneous, the order denying it has already attained finality after 15 days
from his receipt of the order. Such order cannot anymore be amended
or modified. As the Supreme Court has said: ·1ne doctrine of finality of
275
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
judgment dictates the , at the risk of occasional errors, judgments or
orde~ ~ust become final at some point in time.""(Bihag, et al. v. Heirs
of Nicesio Bathan, G.R. No. 181949, April 23, 2014.)
27. When is an ordinary appeal deemed perfected?
. a) 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; and
b~ ~ party's appeal by record on appeal is deemed perfected
as to him with respect to the subject matter thereof upon the approval
of the record on appeal filed in due time. (Rule 41, Sec. 9.)
.section 7, Rule 41 requires a record on appeal to be approved by
the tnal court. But a notice of appeal does not require court's approval.
(Khov. Ca"!~~~~· et,~(..cf3_.R.._No~.fli?7~~'.J'l.c?.V=, 211 1991.)
The parties may file a joint record on appeal where they are both
appellants. (Sec. 8, Rule 41.) . . .<
28. When does the trial court lose jurisdiction over the case?
a) In appeal by notice of appeal, the court loses jurisdiction
over the case upon the perfection of the appeal filed in due time and
the expiration of the time to appeal of the other parties; and
b) In-appeal by record on appeal, the court loses jurisdiction
only over the~@ect matte) thereof upon the approval of the record on
appeal filed in due time and the expiration of the time 'to appeal of the
other parties. (Rule 41, Sec. 9.) · · · · ·.
i , . .. ~
. Thus, in appeal by record on appeal, the trial court loses jurisdic-
tion not over the case but only over. the subject matter of the appeal.
9. Why is it that, as provided for in Section 9, Rule 41,
although the court has already lost jurisdiction over the case or
over the subject matter of the appeal, it may still (1) issue orders
for the protection and preservation of the rights of the parties
which do not involve any matter litigated by the appeal; (2) approve
compr?mises; p>
permit appeals of indigent litigants; (4) order
execution pending appeal m accordance with Section 2 of Rule 39;
and (5) allow withdrawal of the appeal? ·, ..,
Because although it has already lost jurisdiction over the case or
' over the subject matter of the appeal, it may still exercise what Is referred
276
RULE 40 TO RULE 56 - APPEALS
to as residual Jurisdiction. It may exercise this residual jurisdiction prior
to the transmittal of. the record of the case or the record on appeal to the
appe!l~te ~ourt, ~h1~h means that it can exercise its residual jurisdiction
only if it still has m its possession the record of the case or the record
on appeal.
In Development Bank of the Philippines v. Carpio, et al., G.R. No.
195450, Feb. 1, 2017, citing Malayan Insurance Co., Inc. v. Salas, 179
P~il. 201, 206 (1979), the Supreme Court has explained that before the
trial court can be said to have residual jurisdiction over a case. trial
on tlie merits must have been conductea; the court must have already
rendered judgment, and the aggrieved party must have appealed from
the judgment.
Thus, if there is no trial on the· merits-because the case is dis-
missed on ground of, say, improper venue, and the plaintiff could not
have appealed from the order of dismissal as the dismissal is without
prejudice, then the trial court does not have any residual jurisdiction.
. 30. The tria\. court rendered judgment against the defendanL
The defendant filed his notice of appeal. The trial court dismissed
the appeal. What is the remedy of the defendant?
The remedy of a party whose.notice of appeal is denied by the
trial court, although such notice is filed within the period therefor, is to
file a motion for reconsideration of such order and, if the court denies
such motion, to file a Qetition for certiorari under Rule 65'! If a party
is prevented by fraud, accident, mistake, or excusable negligence (or
FAME) from filing his notice of appeal within the reglementary period
therefor, his remedy is to file, in the same case, a ~tition for relief from
the order of the trial·court denying his notice of ap eal. (Fukuzumi v.
Sanritsu Great'lntemational Corp., et al., G.R. No. 140630, Aug. 12,
2q.04,J .
1 · 31. Aside from filing the notice of appeal (or notice of appeal
and record on appeal whenever'required), what must the appellant
do wltbln the period for taking an appeal?
' ·,
Within the period for taking an appeal, the appellant stiatr pay to
the C.lerk of Cou1t which rendered the judgment or final order appealed
from, the full amount of the appellate court docket and other lawful fees.
(Rule 41, Sec. 4.) · .
277

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Failure to pay the full amount of the appellate court docket fee and
other lawful fees is a ground for the dismissal of the appeal. (Rule 50,
Sec. 1[c].)
32. Failure to pay the full amount of the appellate court
docket fee and other lawful fees is a ground for the dismissal of the
appeal. Does appellant's failure to pay the appellate court docket
fee automatically result In the dismissal of the appeal?
Appellant's failure to pay the appellate court docket fee does not
automatically result in the dismissal of the appeal or affect the court's
jurisdictio . The dismissal of the appeal is discretionary on the part
of the appellate court. Thus, the appellate court may extend the time
for the payment of the appellate court docket fees if the appellant can
show that there is a justifiable reason for his failure to pay the correct
amount of docket fees within the prescribed period, like fraud, accident,
mistake, excusable negligence, or similar supervening casualty, without
fault on his part. (Yambao, et al. v. CA, et al., G.R. No. 140894, Nov.
27, 2000.)°
In Buenaflor v. CA, et al., G.R. No. 142021, Nov. 29, 2000, it was
held that although the established rule is that the payment In full of the
docket fee within the prescribed period is mandatory, nevertheless this
rule must be qualified, to wit: Firs, the failure to pay the appellate court
docket fee within the reglementary period allows only discretionary
dismissal, not automatic dismissal, of the appeal; second, such power
to dismiss should be used in the exercise of the court's sound discretion
in accordance with the tenets of justice and fair play and with great deal
of circumspection considering all attendant circumstances.
. .
In Fontanar v. Bonsubre, G.R. No. L-56315, Nov. 25, 1986, cited
in Badillo v. Tayag, et al., G.R. No. 145846, April 3, 2003, it was held
that in appeals from the Municipal Trial Court to the Regional Trial
Court, failure to pay the appellate court docket fee within the 15-0ay
reglementary period bestows on the appellate court a directory, no
rt1andatory, powec to dismiss the appeal.
In the cases of Yambao and Buenaflor mentioned above where
the appeal was to the Court of Appeals f~m th~ jud~~ent _of !h~ ~egi~
nal Trial Court rendered by it in the exercise of its oriqinal jurisdiction, 1t
was also held that failure to pay the appellate court docket fee does not
automatically result in the dismissal of the appeal.
278
RULE 40 TO RULE 56 - APPEALS
Note, however, that in Saint Louis University, et al. v. Cordero,
et al., G.R. No. 144118, July 21, 2004, where petitioners SLU, et al.,
filed a notice of appeal from the judgment of the lsabela RTC, but failed
to pay the appellate court docket fees to the clerk of court, although
after almost one month they sent by postal money orders to the Court
of Appeals their payment of the docket fees, the Court of Appeals
dismissed their appeal. The Supreme Court sustained the dismissal of
the appeal.
But, as explained in Badillo v. Tayag, et al., G.R. No. 145846, April
3, 2003, the payment of appellate court docket fees within the 15-day
reglementary period is mandatory for the perfection of all appeals to the
CA from a decision of the RTC rendered in the exercise of jts appellate
jurisdiction under Section 8, Rule 42; an appeal from the CA to the
Supreme Court is governed by Section 5,. Ru.I~ 45 ?f the 1997 Rules. of
Civil Procedure.
I
In D.M. Wenceslao and Associates, Inc. v. City of Paranaque, et
al., G.R. No. 170728, Aug. 31, 2011, it was held that the p~yment of
appellate court docket fees is not a mere technicality of I~"':
or.proce-
duro, It is an essential requirement, without which the declston or final
order appealed from becomes final and executory as if ~~ appeal was
filed. Under Section 1, Rule 50 of the 1997 Rules of C1v1I Proced~re,
failure or the appellant to pay the docket and other lawful fees 1~ a
ground for the dismissal of the appeal. While there are circumsta_nc~s,
like fraud, accident, mistake, or excusable negligence, that may Justify
the relaxation or the rules on payment of docket fee~, extremely ~eavy
workload or excusable inadvertence of appellants counsel rs not
among them.
What court has the competence to rule that an appeal ls
frivolous or dilatory? 1•
It is the appellate court, not the trial court. (Aquino v. Santiago,
G.R. No. L-56362, May 28, 1988 [161 SCRA 570].)
Al 50, it1 1is the appellate court that may dismiss the appeal for
CA, GR No 121182, Oct. 2, 2000
failure to prosecute. (Esperas v. · · ·
(341 SCRA 583}.) _. . . .
• Please note, however, that prior to the transmittal ~f the original
d th acord on appeal to the appellate court, the trial court may,
recor or ~ r ti dismiss the appeal for having been taken
motu propno or on mo o ,
279
 --···,- .. l~lll-•11~,·-·-···-----------
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
out of time or for non-payment of the docket and other lawful fees within
the reglementary period. (Rule 41, Sec. 13.)
34. P sued D at the RTC. The RTC rendered judgment order-
ing D to pay P1 .9 million to P. P received notice of the judgment on
June 28, 2001, while D on July 4, 2001. Alleging that the judgment
should have ordered D to pay him P2.3 million based on the evi-
dence, P filed a motion for reconsideration on July 5, 2001. 'On the
other hand, D filed a notice of appeal on July 16, 2001. On August
10, 2001, the RTC rendered judgment, substantially amending its
original decision by increasing the amount of D's judgment obli-
gation from P1 .9 Million to P2.3 Million. D received a copy of the
new decision on September 16, 2001, but he did not file a notice· of
appeal anymore. On Nov. 11, 2001, P moved for execution, arguing'
that the judgment already became final for failure of D to file a notice
of appeal within 15 days from September 16, 2001. Is the Judgment
already final?
Wo-:--ln the problem presented, D had already filed in due time a
notice'S;iappeal after he received the original decision. There is no
need for a new notice of appeal even after substantial amendment of
the original decision increasing defendant's liability. Defendant's failure
to appeal from the trial court's decision which substantially amended
the original decision did not render the prior appeal from the original
decision ineffective . .(Pacific Life Assurence Corp. v. Sison, G.R. .. No.,
122839, Nov. 20, -199~.) ' .
35. What are the guidelines forappeal in civil cases?
The following are the guidelines:
a) if an appeal is attempted from a judgment of an RTC by notice
of appeal, that appeal can and should never go to the SC, regardless· of
any statement in the notice that the court of choice is the SC;
b) if.an appeal is taken from the RTC to the CA and in the latter
court, the appellant raises nothing but issues of law, the appeal should
be dismissed for lack of jurisdiction;
c) if an appeal is essayed from the judgment rendered by an
RTC in the exercise of its appellate jurisdiction by notice of appeal,
'instead of by petition for review, the appeal is inefficacious and should
be dismissed; and • ·
280
... ,,, -~J~"!'flf'-
RULE 40 TO RUL·E· ~6 - APPEALS
d) it Is only through petitions for review on certiorari under Rule
45 that the appellate jurisdiction of the SC may properly be invoked.
(Refs: Murillo v. Consul, UDK-9748, March 1, 1990; Caina v. People,
.
G.R. No. 78777, Sept. 2, 1992 [213 SCRA 309}.)
. .
..!36t Summarize the rules ,on appeal from the judgments of
the Regional Trial Court. . .
. The rules on appeal from the judgments of the Regional Trial
Courts may be summarized as follows:
. . a) . Original Jurisdiction - in all cases decided by the Regional
Trial Courts in the exercise of their original jurisdiction, appeal may be
made to:
.:: . . 1) tb_e .court of Appeals --: where .the appellant raises
. - ,_.questions of fact or mixed questions of fact and law. by filing a
' mere notice of appeal. (No record on appeal shall be required
, except in special proceedings and other cases of multiple or
separate appeals.): ··
2) tlie SuP.reme Cou -where the appellant solely raises
questions of law, by filing a petition for review on certiorari under
Rule 45. ·
. b) Appellate Jurisdiction :_ All appeals from judgments ren-
dered by the Regional Trial Courts in the exercise of their appellate
jurisdiction,' whether th~ appellant raises que~tions of !~ct, of law'. or
mixed questions of fact and law, ~liall tle by filing. a. ~et1t10 f~r. review
with the Court of'ApP,eals under Ru1Ef421 (Macaw1will Gold Mmmg and
Development Co., Inc. v.·CA, G.R. No. 115104, Oct. 12, 1998.)
As. explained in t.etotre v. Lston», G.R. No. 183926, March 29,
2010 there are three modes of appeal from decisions of the RTC,
nam~ly: (1) ordinary appeal or appeal by writ of error, ~here judgm~nt
was rendered in a civil or criminal action by the RTC m the exercise
of its original jurisdiction; (2) petition for r~view, w~er_e j~d~ment was
rendered by the RTC in the exercise of its appellate JUn~d1c~1on; and (3)
petition for review on certiorari to the Supreme Court. .:
II/. p filed a complaint against Din the MTC to recover_p~s-.
session of a parcel of land. Alleging that the MTC had n~ JU~ts-
diction over the subject matter of the action, D moved to dlsmlss
I
281 I
I
I
An 1_
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
the complaint. The MTC granted O's motion and dismissed
'case without trial.
a) What is the remedy of P?
The remedy of P is to apP.eal the order of dismissal to the RTC.
b) Suppose the RTC reverses the order of dismissal"of
MTC, what procedural step must the RTC follow?
The RTC shall remand the 'case to the· MTC· for further proceed-
ings slnce the reversal of the order of dismissal is an adjudication by it
that the MTC has jurisdiction over the subject matter of the action.
In He"era, et al. v. Bo/las, et al., G.R. No. 13858, Jan. 18, 2002,
the municipal trial court dismissed the case for lack of jurisdiction, and
t~e r~gional trial court reversed the dismissal, but rendered judgment
e~ecting the defendants from the parcel of land involved, and condem-
ning them to pay damages and attorney's fees. This is not correct. In
case of reversal, the case shall be remanded to the Municipal Trial
Cou~ !or fu~her proceedings. The Regional Trial Court, in reversing the
Municipal Trial Court, cannot decree the eviction of the defendants and
award damages. • with the MTC which, in due time, rendered judgment dismissing the
c) Suppose the RTC affirms the order of dismissal, what
procedural step must the RTC follow?
Ttie RTCC, ·r it has jurisdiction over the subject matter of the action,
~hall t~ the case o~ the merits as if the case was originally filed with
1t. -B~t 1f the TC likewise has no jurisdictio (because the case is
coqnizao'e, for example, by other quasi-judicial bodies like the DARAS
o~ th~ HLURB), then it shall not try the case, and the case shall remain
d1sm1ssed. (Rule 40, Sec. 8.)
8. The MTC tried a case, although It had no jurisdiction over
the subject matter thereof. The defendant did not move to dismiss
t~e ~se, and the MTC did not notice its lack of jurisdiction. After
trial, lt rendered a decision. -· . .
a) What is the remedy of the party who Is aggrieved by the
decision of the MTC?
His remedy is to appeal the MTC decision to the RTC.
b) What shall the RTC do with the case that was appealed
~~ . . . agreed to the relocation survey. The relocation survey. was ordered
282
RULE 40 TO RULE 56 - APPEALS
the . "' The RTC, if it has original jurisdiction over the case, shall not'
dismiss t e appeal, but shall decide the case on the basis of the entire
records of the proceedings had in the MTC and such memoranda as
are filed by the parties. It may, however, admit amended pleadings and
additional evidence in the interest of justice. (Rule 40, Secs. 7 and 8.)
the 39. P filed a complaint for forcible entry with the MTC against
D. aiding that it has no jurisdiction, the MTC dismissed the com·
plaint. P appealed to the RTC. Ruling that the MTC has jurisdiction,
the RTC reversed the MTC's order of dismissal. But instead of
remanding the case to the MTC, the RTC rendered judgment ejecting
D from the land involved. Is the RTC correct?
~ If the RTC reverses the MTC's order of dismissal,· it shall
rem~he case to the MTC for further proceedings. In reversing the
MTC's order of dismissal, the RTC cannot decree the eviction of the
defendant. (Bernabe v. Alejo, G.R. No. 140500, Jan. 21, 2002.)
, . 0. After a relocation survey, P found that a portion of his
lot Is occupied by D. P then filed a case for ejectment ag,inst D
complaint because, according to it, 0 did not encroach on the lot.
P appealed the judgment to the RTC. With the concurrence of the
.
I~
parties and their lawyers, the RTC Judge ordered a relocation survey
to be conducted by the Bureau of Lands. After the survey which
~ was conducted in the presence of the parties and their lawyers, the
Bureau of Lands submitted Its report to the court, showing that D
J had encroached on 89 square meters of P's lot. In due time, the
RTC rendered judgment in favor of P, reversing the MTC judg'l'!ent
I) and ordering D to vacate the lot In question. After the judgme·nt
had become final, D filed an action for annulment of judgment with
the CA on the ground of extrinsic fraud. What D claimed to be an
extrinsic fraud was the conduct of the relocation survey. He argued
that the order for the relocation survey Is irregular. He cited Section
7, Rule 40 which provides that the RTC "shall decide the case on
the basis of the entire record of the proceedings had in the court of
origin and such memoranda as are filed." Is D correct?
No, D is not correct. It should be noted that the conduct-~f the
relocation survey by the Bureau of Lands was not instigated by P,
but upon the order of the RTC. Besides, the parties and their lawyers
283

QUESTIONS AND.ANSWERS IN
REMEDIAL LAW
for the purpose of conclusively asce'rtaining a factual issue'which is a
proper question for the RTC to inquire into. It is the inherent power of
~he ~urt_ to_ do all things reasonably necessary for the administration of
Justicewithin the scope of its jurisdiction. Even assuming that the order
for ~he relocation survey is irregular on the premise that the RTC may
dec1~e the appealed case on the basis of the record of the proceedings
had m the ~TC and such memoranda as are filed, such lapse is only
p~o~dural m chara~ter. The result of the survey is not ipso facto
bindmg upon the parties even if they consented to the survey, but would
only form part of the proofs on which the RTC may base its decision.
(Espinosa v. CA, et al., G.R. No.· 128686, May 28, 2004.)
41 The MTC rendered a decision against X. X appealed the
decision to the RTC which sustained the decision of the MTC. In' due
time, he filed a motion for reconsideration, but the RTC denied his
motion. He received a copy of the order denying his motion on May
2, 2001. If X wants to pursue further appeal, what is his remedy?
His remedy is to file a verified .l'i~titionfor review witn'the Court of
A peals. Under the rules, the petition for review must be filed within 15
days from notice of the decision sought to be reviewed or from notice
of the denial of petitioner's motion for reconsideration filed in due time.
Since in this case X had filed a motion for reconsideration, the
15-day period is to be reckoned from May 2, 2001, the date he received
the notice of the denial of his motionJor reconsideration. Therefore, he
w~~-ld1.~,until May 17, 2001 to file his petition for review. (Rule 42,
s/..r,-= . .
42. From tho judgment of tho MTC, tho defendant appealed
. payment of his backwages. When the decision of the CA became
to tho RTC. Tho RTC rendered a decision In duo time. Not satisfied
with tho decision of tho RTC, defendant fllod a notice of appeal with
tho RTC. In his notice of appeal, ho stated that ho was appealing
tho decision of the RTC to tho Court of Appeals on the ground that
tho same Is contrary to law and tho evidence. Should tho appeal be
otvon duo course?, ..
~ecause defendant's mode of appeal Is wrong. Since the
RTC rendered Its decision In the exercise of Its appellate jurisdiction,
defendant's appeal therefrom should ho by filing n petition for review
with tho Court of Appeala under Rulo ,12 whether ho mises quostions of
fAr.l, of IAw, or mixed queatlona of foci nnd law,
204
RULE 40 TO RULE. ~6 - APPEALS
43. To what court may decisions of the Ombudsman in
administrative disciplinary cases be appealed?
All appeals from decisions of the Ombudsman in administrative
dis?i?linary ca~es are to be taken to the Court of Appeals oy way of
petition for review under Rule 43> of the 1997 Rules of Civil Procedure
[Adm. Gire. No. 99-2-01:scJ. (Macalalag v. Ombudsman, G.R. No.
147995, March 4, 2004.) ·
In Macalalag, the petitionerfiled with the CA an action for annul-
ment of judgment of the Ombudsmanrenderedin an administrativedis-
ciplinary case. The SC held that the CA has no jurisdiction over actions
for annulment of judgments of the Ombudsman as Rule 47 covers
annulment by the CA of judgments or final orders and resolutions in
civil actions of RTC for which the remediesof new trial, appeal, petition
for relief or other appropriate remediescould no longer be availed of
through no fault of the petitioner.
44. The complaint for illegal dismissal filed by Villaflores
against RAM System Services, Inc., et al. (RAM System) was dis-
missed by the labor arbiter. On appeal, the NLRC affirmed the
decision of the labor arbiter. Villaflores filed a petition for certiorari
with the Court of Appeals, which case was docketed as CA·
G.R. SP No. 58836 and raffled to the 16th Division of said court.
Reversing the decisions of the labor arbiter and the NLRC,. the
Court of Appeals declared the dismissal of Villaflores (and another
employee) Illegal and ordered the reinstatement of Flores and the
final and executory, the case was remanded to the labor arbiter
for execution. After pre-execution conference where the parties
argued on tho computation of the monetary award, the labor arbiter
Issued an order affirming the computation of tho Research and
Computation Unit (RCU) of tho NLRC. RAM System appealed tho
labor arbiter's order to the NLRC which, In due time, dismissed the
appeal. RAM System's Motion for Reconsideration was likewise
denied by the NLRC. RAM System flied with the Court of Appeals
a petition for certiorari, seeking to reverse the NLRC resolutions.
RAM System's petition was docketed as CA·G.R. SP No. 84941 and
raffled to tho 9th Division of said court. Does the CA (9th Division)
have jurisdiction over the petition for certiorari In CA·G.R. SP No.
84941?
285
 ... ,I IJI,....

QUESTIONS AND ANSWERS IN

REMEDIAL LAW

The CA (9th Division) does not have jurisdiction over the petition do to his client if he undertake .
entrusted to him. If that sit r s or continues to undertake the task
for certiorari in CA-G.R. SP No. 84941. In Villaflores v. RAM System \
or obtain his client's inst uat~on occurs,. he should either decline to act
Services, Inc., et al., G.R. No. 166136, Aug. 18, 2006, it was held that the
16th Division of the Court of Appeals retained jurisdiction over the case
another lawyer to avoid
.
rue ion to retain cons It
•
II b t
u , or co a ora e w1
any untoward event detrimental to his client's
cause. (Cnstobal v. CA, et al., G.R. No. 1359591 May 11• 2000.)
'th
l·
to the exclusion of all other divisions. It retained the power to control the
conduct of the labor arbiter in the enforcement of its decision. A case on
6J May the 15-day period to file a petition for review with the
appeal to the CA, and in which an order of execution has been issued
Court of Appeals be extended? \
is considered as still pending, so that all proceedings on the execution
are proceedings in the suit. Thus, the proceedings in CA-G.R. SP No. Yes, it may ?e
extended but only for another period of 15 days.
58836 had not been terminated, and no other court had jurisdiction to No further ~xtension shall be granted except for the most compelling
hear and decide questions incidental to the enforcement of the decision reason and m no case to exceed 15 days. (Rule 42, Sec. 1.)
of the CA or its award in favor of the petitioner by the labor arbiter.
Thus, the remedy of RAM System to assail the resolution of the NLRC 4~. Suppose X filed with the Court of Appeals a motion for
approving the RCU's computation was to file a motion for clarification extension of 30 days - or until June 16, 2001 to file a petition for re-
with the 16th Division of the CA in CA-G. R. SP No. 58836. RAM System view. The ~ourt of Appeals issued a resolution granting the motion
should not have filed a separate petition with the CA, which was later for extension but only for 15 days- or until June 1, 2001. On June
docketed as CA-G.R. SP No. 84941 and raffled to the 9th Division. 5, 200~, or four days after the expiration of the granted extension,
X received a copy of the aforesaid Court of Appeals' resolution. On
45. The Court of Appeals rendered a decision in a case June 16, 2001, X filed his petition for review. Was the petition for
appealed to it from the Regional Trial Court. If the party adversely review filed seasonably?
affected by the decision of the CA desires to file a motion for /NoJThe Court of Appeals could not be faulted for granting X an
reconsideration, within what time may he do so? Assuming that exte~ of only 15 days, even if what was prayed for in the motion
the counsel for said party is indisposed and is confined at the
hospital, may a motion for extension of time to file a motion for
for extension was 30 days. The rule is that the 15-day period to file a
petition for. revlewwlth the Court of.Appeals may be extended but only
reconsideration be filed? for another period of 15 days. '(Videogram Regulatory Board v:· CA, et
ftnswer to the Firsr<;Juestiqn: A party may file a motion for recon- al., G.R. No. 106564, Nov. 28, 1996.)
sideration of a judgment or final resolution ofi the Court of Appeals
within 15 days from notice thereof, with proof of service on the adverse
48. How shall appeal from quasi-judicial agencies under
Rule 43 be taken? Give examples.
party. (Rule 52, Sec. 1.)
An appeal from quasi-judicial agencies under Rule 43. shall be
Answer to the Second Question: In Habaluyas Enterprises, Inc. v.
taken by filing a verified petition for review with the Court of Appeals.
Japson, G.R. No. L-70895, May 30, 1986 (142 SCRA212), the Supreme
Examples are:
Court stressed that no motion for extension of time to file a motion for
new trial or reconsideration may be filed with the MTC, the RTC, and the a) The decision or award of a voluntary arbitrator is appealable
CA. Such motion may be filed only in cases pending with the Supreme to the Court of Appeals via a petition for review under Rule 43 because
Court as a court of last resort which may, in its sound discretion, grant a voluntary arbitrator performs quasi-judicial functions. (Samahan ng
or deny the extension requested. The illness of counsel is not a valid mga Manggagawa sa Hyatt v. Voluntary Arbitrator Buenaventura C.
ground for asking an extension. While a client is entitled to an effective Magsalin, et al., G.R. No. 164939, June 6, 2011.)
representation, the lawyer should recoqnize his lack of competence or b) The remedy of a party who is. aggriev~d- by t~e res?lut~on
his incapacity to handle a particular task and the disservice he would issued by the City/Provincial Prosecutor in a preliminary lnvestlqatton

286 287
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
is to appeal to the Secretary of Justice. If the Secretary of Justice
dismisses his appeal, he must file a motion for reconsideration. If his.
motion for reconsiderationis denied by the Secretaryof Justice, he may
now file a petition for certiorari under Rule 65 with the Court of Appeals..
(Filadams Pharma, Inc. v. CA, G.R. No. 132422, March 30, 2004.)
But where the penalty for the offense is reclusion p_erp_etua
to death, the resolution of the Department of Justice is appealable
administratively to the Office of the President, and the decision of the
Office of the President may be appealed to the Court of Appeals pur-
suant to Rule 43. (De Ocampo v. Sec. of Justice, G.R. No. 147932, Jan.·
25, 2006.)
49. Gonzalo Go, Jr. was appointed in 1980 as hearing officer
of the Board of Transportation {BOT) with a salary rate of P16,860
per annum. In 1987, E.O. 202 was issued creating, within the DOTC,
the LTFRBto replace the BOT. In 1990,the DOTCSecretary extended
a promotional appointment to Go as Chief Hearing Officer with a
salary rate of P151,800per annum. The Civil Service Commission
approved this permanent appointment LTFRB Administrative
Division Chief Cynthia Angulo stated that the promotion was to the
position of Attorney VI, Salary Grade 26. However, the DB_~ il'.I its
letter of March 13, 1991 stated that Go's position should only be
allocated the rank of Attorney V, Salary Grade 25. Go wrote the DBM
to question his summary demotion or downgrading of his salary
grade from SG26 to SG25. The DBM Secretary denied Go's protest.·
Go sought reconsideration, but it was denied. Go then appealed to
the Office of the President, but the Office of the President dismissed
Go's appeal. His motion for reconsideration was likewise denied
by the Office of the President. Go interposed before the Court of
Appeals a petition for review under Rule 43. Did Go take the proper
remedy?
No. [fhe proper remeay available to Go is to question tlie DBNi's
denial of.his protest before the Civil Service Commission (CSC) which
has exclusive jurisdiction over cases involving personnel actions, and
not before the OP. In turn, the resolution of the CSC may be elevated
to the CA under Rule 43 and, finally, before the Supreme Court.·
Consequently, Go availed himself of the wrong remedy when he went
directly to the CA under Rule 43 without repairing first to the CSC. (Go
\I, CA, et el., G.R. No. 172027, July 29, 2010) --· ~ . . · ·- ... -
288
•
l
RULE 40 TO RULE 56 - APPEALS
50. Under Rule 45, the petitioner wh'o files a petition for
review on certiorari with the Supreme Court may raise questions of
law only. So it is that the jurisdiction of the Supreme Court in cases
brought to it from the Court of Appeals is limited to reviewing the
errors of law Imputed to the Court of Appeals. Are there instances
when the Supreme Court may review findings of facts of the Court
of Appeals?
Yes, and the instancesare:
a) when the conclusion is a finding grounded entirely on
speculation, surmises, or conjectures;
b) when the inferencemade is manifestly absurd, mistaken, or
impossible;
c) when there is grave abuse of discretion in the appreciation
of facts;
when the judgment is premised on a misapprehension of
d)J
;
facts;
e) . when the fi_ndingsof facts are conflicting; and
· f),- when the findings of facts are contrary to the admissions
of the parties. (Rema/ante v' Tibe, et al., G.R. No. L-59514, Feb. 25,
1988.)
1. May a party withdraw his appeal that has already been
perfected? If so, when? · ---- --- ·---
~. he niay withdraw his appeal. Section 3, Rule 50 of the 1997
Rules of Civil Procedure provides: "An appeal may be withdrawn as of.
right at any_-time before the filing of the apRellee's brief. Thereafter, the
withdrawal may be allowed in the discretion of the court."
In People v. Paradeza, G.R. No. 144590, Feb. 7, 2003, it was
held that Section 3, Rule 50 of the 1997 Rules is applicable to criminal
cases.
In civil cas , if the appeal to the Court of Appeals is by notice of
appeal, the clerk of court shall issue a notice that all the evidence, oral
and documentary, are attached to the record, The appellant has 45
days from receipt of notice of the clerk of court to file his [appellant's]
brief. The appellee has 45 days from receipt of the appellant's brief to,
file his [appellee's] brief.. (Secs. 7 and 8, Rule 44, 1~97 Rule~ of Civil
Procedure.)
289

QUESTIONS ANO. ANSWERS IN
REMEDIAL LAW
In riminal cases, the appellant has 30 days from receipt of the
notice of the clerk of court to file his [appellant's] brief. The appellee has
30 days from receipt of the appellant's brief to file his [appellee's) brief.
(Secs. 3 and 4, Rule 124, Rules of Court.)
But in both civil and criminal cases, if the appeal is from the
MTC to the RTC, ;q~ period for filing the appellant's brief (also called
memorandum) is~ffl.from receipt of the notice of the clerk of court, ·
and the appellee tias~ays from receipt of the appellant's brief to file
his [appellee's) brief. . · /I b)
Thus, if e appellant has not yet filed his briel, tie may witnaraw
his appeal as of right. But even if the appellant has already filed his
brief, and the appellee has not yet filed his brief, the appellant may still
withdraw his appeal as of right.
Suppose the appellee has already filed his brief, may the appellant
still withdraw his appeal? ¥,es, but tliis time, the wittic:trawal is at 'the
court's-discretion.
s2: What are the grounds for annulment of judgment?
The following: (a Extrinsic l:raijcj; (b) taclfo Jurisdiction:'
But extrinsic fraud shall not be a valid ground for annulment of
judgment if it was availed of, or could have been availed of, in a motion
for new trial or petition for relief. (Rule 47, Sec. 2.)
A petition for annulment of judgment must be ~ and
a certified true copy of the judgment sought to be annulled shall be
~ to the o~iginal ·copy of the petition. (Rule 47,=4.) . .
finausukan Seafood House-Roxas Blvd., Inc. v. Far East Bank
and Trust Co., now Bank of the Pt,{lippine Islands, et al., G.R. No.
159926, Jan. 20, 2014, explains more succinctly the rule involving
annulmentof judgment, as follows:
a) lack of ·urisdiction on the J)art of the trial court in rendfl[ing
the judgment or final order is either lack of jurisdiction oxer the su5ject
matter or nature of the action, or lack of urisdLction over the person
of the defendapt. The former is a matter of substantjye law because
statutory law defines the jurisdiction of the courts over the subject
matter or nature of the action. The latter is a matter of procedural law,
for it involves the service of summons or other process on the petitioner.
290
111~111~111•~111~
RULE 40 TO RULE 56 - APPEALS
A judgment or final order issued by the trial court without jurisdiction
over the subject matter or nature of the action is always void, and, in the
words of Justice Street in Banco Espanol-Filipino v. Palanca, 37 Phil
949 (1918), "in this sense it may be said to be a lawless thing, which
can be treated as an outlaw and slain at sight, or ignored wherever and
whenever it exhibits its head." But the defect of lack of jurisdiction over1
the person, being a matter of procedural law, may be waived by the__)
party concerned either expressly or impliedly. ·
r the ground relied upon is lack of jurisc:tiction, the .ennre
Rroceedings are set aside without prejudice to the original action ~ein.g
refiled:in Jne Rroper court, If the judgment or final order or resolution rs
set aside on the ground of e ·nsic fraud, the Court of Appeals may on
motion order the trial court to try the case as if a timely motion for new
trial had been granted therein.
c) tiis remedy of action for'annulment is not an alternative to
the ordina!)! e edies of n_ew trial, appeal ancf petition for reliefJfhe
petition must aver, therefore, that the petitioner failed to move fo~ a new
trj91, or to appeal, or to file _a ~etition_ for relief without fault on his part.
v5ut this requirement to aver 1s not imposed when the ground for the
petition is lack of jurisdiction (whether alleged singly or in combinat~on
with extrinsic fraud), simply.because the judgment or final order, being
~. may be assailed at any time either co~laterally ~r by direct act~on
or by resistin such ·ud ment or final order in any action ~r 9ro~e.edin_g
whenever it js jnyoked, unles the ground of lack of 1unsd1ct1on is
meanwhile barred by !aches.
~- . When is fraud r~garded as extrinsic?
. . . Fraud is regarded as .eX!rin c or collateral where a litigant commits
acts outside of the trial of the case, the effect of which prevents a party
from having a trial, a real contest, or from presenting_ ~II of his case
to the court, or where it operates upon matters pertaining not to the
judgment itself but to the ~anner in which it was p~oc~red so that there
is not a fair submission o the controversy. (Strait Times, Inc. v. CA,
G.R. No. 126673, Aug. 28, 1998 [294 SCRA 714].)
In Santos v. Santos, G.R. No. 187061, Oct. 8, 2014, it was held
that the proper remedy against a final judgment decl~ring ~- spouse
presumptively dead is an action to annul the judgment 1f the Judg~~nt
was obtained by extrinsic fraud, as when the husband filed .the pet1t1on
to have his wife declared presumptively dead although his wife was
291

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
never absent. An affidavit of re-appearance under Article 42 of the
Family Code is not the proper remedy when the spouse declared pre-
sumptively dead has never been absent.
54. Suppose, at the trial, the plaintiff Introduced In evidence
a fa~sified document or a perjured testimony, Is the introduction of
falsified document or perjured testimony an extrinsic fraud?
No, use of falsified document or perjured testimony during the
trial . t an extrinsic fraud. Rather, it is an intrinsic fraud because
it is committed at and during the trial. Fraud is extrinsic if committed
outside of the trial. (Strait Times, Inc. v. CA, G.R. No. 126673, Aug. 28,
1998 [294 SCRA 714]; Rexion Realty Group, Inc. v. CA, et al., G.R. No.
128412, March 15, 2002.)
. 55. X filed a petition with the RTC for the issuance of a
new owner's duplicate certificate of title in lieu of the one that
was' allegedly lost After hearing, the trial courtlssued a Judgment
granting the petition. After the judgment had become final, 'y filed
an action with the CA for the annulment of the order of the trial court
allegjng that the owner's duplicate certificate of title was riot lost bu"t .:
was in fact in the possession of Y all the while. What should be the
gfouriifforffiis action for"arfnilfment-fraud·or lack of [urisdicticn?
e _ ground . .should be lack of jurisdiction,. not fr;ud:' Lack of
jurisdiction-because if a certificate of title alleg1ed-to-have been lost was
not in fact lost but is in the possession of -anotner person, then the
re~nstituted title or the new one issued pursuant to the judgment is
void, and the court that rendered the judgment had no jurisdiction. Not
fraud because the use of forged instruments or perjured testimonies at
or during the trial is not an extrinsic fraud, but an intrinsic fraud. (Strait
Times, Inc. v. CA, G.R. No. 126673, Aug. 28, 1998 [294 SCRA 714).)
As reiterated in Coombs v. Castaneda, et et., G.R. No. 192353,
March 15, 2017, the regional trial court "has no jurisdiction when the
certificate sought to be reconstituted was never lost or destroyed but is·
in fact in the possession of another person. In other words, the fact of
loss of the duplicate certificate is jurisdictional:"
· 5 . May a final and executory judgment be annulled on the
ground of gross negligence of counsel in handling the case of his
client before the trial court?
292
RULE 40 TO RULE 56 - APPEALS
~rdinarily and as a ruld, the negligence of counsel binds his
clienfs?t ~here the ~unsel is guilty of gross negligence in handling
the case before ~he ~rial .court, where his incompetence or negligence
is s? great that. his ~hent rs prevented from fairly presenting his defense
as interposed in his answer, then the judgment may be set aside on
such ground. (Apex Mining, inc., et al. v. CA, et al., G.R. No. 133750,
Nov. 29, 1~99.)
In Apex Mining, Inc., the gross negligence of defendants' counsel
prevented them from fairly presenting their defense. The Supreme
court set aside the judgment rendered by the trial court against the
defendan~s. annulled the writ of execution already issued, and ordered
the trial court to reopen the case for the reception of evidence for the
defendants.
, 57 .. X filed with the regional_ trial court a complaint for
collection of_ a sum of money. In his complaint, he prayed that Y
be· ordered to pay the principal obligation with interest thereon · at
12%" per annum. For failing to file his answer despite being granted
~n 'extenslon, y was declared in default on motion of x. The trial
~'?!Jct r4[ti:tder_e_~_j~~g'!!e!IJ ~r~!!ring _d~f~_n~~l)tYJ~~y_the principal
~~tiga_t!~n Y(ith interestthereon at - surprisingly - 5% mont~ly
interest (or 60% interest per. annum). Defendant's counsel received
a copy of the judgment, but allowed it to become final without even
quest!QnllJgJt:ie_ ~wa_rc;t_Qf.5% montl:tJY- il'lt~rest.Y filed.a petition for
~~nulmentof _judgment with. the ..G.o_uft . of. Appeals .. The. Court. of
App~~!~ gra.~~~~ tbe.petition. X now claims that the Court of Appeals
erred in granting the petition, arguing that the only grounds for
annulment of judgment under Section 2, Rule 47 are extrinsic fraud
and lack of jurisdiction. Is X correct? ·
No,X is not correct.
In ions v. Balangue etal., G.R. No. t 73559, January 7, 2013, the
Supreme Court held that while under Section 2, Rule 47 an.nulment of
judgment may be based only on grounds of extrinsic fraud and lack of
jurisdiction, jurisprudence recognizes lack of due process as additional
ground to annul a judgment. Here, the award of 5% monthly interest·
violated Y's right to due process; hence, it may be set aside in a petition
for annulment of judgment filed under Rule 47 ..
. . Also in Diona defendant's counsel was found to have been grossly
neglige~t in handli~g the case. He flied a motion' for extension of time to
293

QUESTIONS AND ANSWERS
REMEDIAL LAW
IN
file answer, yet he allowed the extension to pass without filing an answer,
He did not question the award of 5% monthly interest, although a simple
reading of the dispositive portion of the decision readily shows that the
court awarded exorbitant rate of interest. He allowed the decision to
become final by not filing an appeal. Ordinarily, the Supreme Court
said, the mistake, negligence or lack of competence of counsel binds
his client. This is based on the rule that any act performed by a counsel
within the.scope of his general or implied authority is regarded as an
act of his client. A recognized exception to the rule is when the lawyers.
were grossly negligent in their duty to maintain their client's cause and
such amounted to a deprivation of their client's property without due
process of law. In such a situation, the client does not lose the remedies
of new trial, appeal, petition for relief, or annulment of judgment.
58. What is the period for the filing of an action for annuhnent
of jui:I ment?
If l:>asea on extrinsic fraud, the action must be filed within four
years from its discovery; and if based on lack of jurisdiction, before it is·
barred by !aches or estoppel. (Rule 47, Sec. 3.) ·
v13ut an action for annulment of judgment can·be resorted to only'
if theremedies of new trial, appeal, petition for relief, or other approp-
riate remedies are no longer available through no fault of the petitioner.
(Rule 47, Sec. 1.)
59. What are the remedies ag~inst a "final and executory
judgment? (Or, the question may be put this way: What are the ways
by which a final and executory judgment may be set aside?) - it does not apply to judgme.nts of quasi-judicial bodies. (Elcee Farms,
The following:
a) Petition for Relief from Judgrnent under Rule 38 when the
judgment has been taken against the ~party through fraud, accident,
mistake, or excusable negligence. (The petition must be filed within
60 days from knowledge of the judqment and six months from entry
thereof.)
b) Action for Annulment of the Judgmen . This is a direct
action for annulment on the ground of: (1) extrinsic fraud; or (2) lack of
jurisd.igtio!l over the subject matter ?r over ·!h.e_ person of the detendant.
If based on extrinsic fraud, it may befned within four years from .the
•• -· •• ··- • ,._,,. ••• • ... J •
294
"' "'="' -· .... ..._ ........_"'_"01." ·
RULE 40 TO RULE 56 - APPEALS \; I
discovery of the fraud; and if based on lack of jurisdiction, before lt.ls
barred by laches or estoppal.
\!
\I...
c) A direct action for certiorari under Rule 65? or a collateral ,,
j
attack against the judgment if the judgment is void on its face or void by
its own recitals. (Arcelona v. CA, G.R. No. 102900, Oct. 2, 1997 [280
SCRA 20].)
60. In an action for annulment of judgment, is extraneous
evidence (or evidence •10!_ found In the records of the case)admis·
sible?
[t depe ds.
If the action for annulment is based on lack of jurisdiction over the
person of the defendant or subject matter, only evidence found in e
· records of the cas can justify the annulment of said judgm~nt.
....... -61 •... Does- the .. Court of Appeals have jurisdiction ove~ an
~ction for annulment-of judgment of the National Labor Relations
-Commission?- . . · _ · -- - - - · ·· - - · - .. - - -- --; ---
, . (fu>~ The Court of Al)l)eals has no jurisdi~o~ over an action
for annu ment of judgment of the NLRC Rule 47 of the 1997 ~ules of
CiviiProcedure grants the Court of Appeals jurisdiction over actions for
annulment of judgments or final orders of the regio~al trial courts, and
'mc., et al. v. Semillano, et al., G.R. No. 150286, Oct. 17, 2003.)
-, Al~~. Rule 47 ·does not apply to an action to annul. the levy and
sale at public auction of petitioner's property or t~e cert1fica_te of sale
executed by the sheriff over the said property. Ne1~her does ,t. apply to
an action to nullify a writ of execution because a wnt of execution is not
a final order or resolution, but is issued to carry out the mandate of the
court in the enforcement of a final order or of a judgment. The reme~y
of a party who seeks to nullify the levy and sale of his property at pu~h?
auction in violation of Sections 15 and 21 of the 1_997 Rules o~ C1v1I
. motion for that purpose before the trial court, not in the
P roce d ure 1s a . GR No 146996, July 30, 2004.)
• ...... .J • appellate court. (Gwang v. Co, et al., · · ·
295
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW

The ruling in Guiang v. Co, et al., supra, is reiterated In Baclaran

Marketing Corp. v. Nieva, et al., G.R. No. 189881, April 19, 2017, In
which it is also held that a writ of possession is not a final order that may RULE 57
be annulled in an action for annulment under Rule 47.
PRELIMINARY ATIACHMENT
62. May a person not a party to the case In which the judg-
ment Is rendered file an action for annulment of judgment? 1. In what cases may the plaintiff (or any proper party)
~ in which case he must prove that the judgment was obtained apply for the Issuance of a writ of preliminary attachment?
by the use of extrinsic fraud and collusion and that he would be In the following cases:·
adversely affected thereby. (Arcelona v. CA, G.R. No. 102900, Oct. 2,
a) In an action for the recovery of a specified amount of money
1997 [280 SCRA 20].)
or damages other than moral and exemplary, on a ~use. of a~on
However, in Dare Adventure Farm Corp. v. CA, et al., G.R. No. arising from law, contract, quasi-contract, delict, or quasi-dehct against
161122, Sept. 24, 2012, the Supreme Court said the following: "'A deci- a party who is about to depart from the Philippines with intent to defraud
sion rendered on a complaint in a civil action or proceeding does not his creditors; ·
bind or prejudice a person not impleaded therein, for no person shall b) In an action for money or property emb_ezzled or fraudulently
be adversely affected by the outcome of a civil action or proceeding misapplied or converted to his own use by a pubhc officer, or an ~fficer
in which he is not a party. Hence, such person cannotbring an action of a corporation, or an attorney, factor, broker, agent, or_ clerk m _the
for annulment of the judgment under Rule 47 of the 1997 Rules of course of his employment as such, or by any other person m a fiduetary
Civil Procedure, except if he has been a successor in interest by title capacity: or fo~ a willful violation of such duty;
subsequent to the commencement of the action, or the action· or pro-
.. c) In 'an action to recover the possession of property unj~!~y
ceeding is in rem the judgment of which is binding against him."
-or fraudulently taken, detained, or converted whe~ the property, ~eveJ
But only a Rarty may file a petition for relief from judgmentor final art thereof, has been concealed, removed, or d1s~sed of to p.
order. (Rule 38, Secs. 1 and 2.) . . . . .'. ·: ;_;, ;___ . its being found or taken by the applicant or an authonzed person, .
.. In an action against a party who has been ~uilty of fra_ud i_n
63. What is the remedy of a party aggrieved by a decision of contr!Jting the debt or incurring the o~ligation upon which the action is
the CA in an action to annul a judgment of RTC? : -, brought, or in the performance thereof, .
His remedy is a petition for review on certiorari under R le 45 to ,. ., . . . t rty who has removed or disposed of
. e) In an_actb1oonuff:~is6 p!ith intent to defraud his creditors; or
be filed witti the SC where only questions of law may be raised. (Linzag his property, or 1s a • . .
v. CA, G.R. No. 122181, June 26, 1998 [291 SCRA 304].) .. ' ' . . t rty who does not reside and is
f) In an a~t~on. agams a p~om summons may be served by
not found in the Ph1hppmes. or on w
publication. (Rule 57, Sec. 1 ·)

2. What are the kinds of attachment?

The following are the kinds of attachment:
· hi1~ction
h is a provisional remedy
. a) Preliminary AttachmjW • ; is pending, to be levied
issued upon order of the court where e

297 I
296 I
l,

J

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
upon the property or properties of the defendant therein, the same to be
held thereafter by the sheriff as security for the satisfaction of whatever
judgment might be rendered in said action in favor of the attaching
creditor against the defendant. (Virata v. Aquino, G.R. No. L-35027,
Sept. 10, 1973.);
b) Garnishmel')t, which is an attachment by means of which
the plaintiff seeks to subject to his claim property of the defendant in
the hands of third persons or money owed by such third person to the
defendant. Such third person is calledthe garnishee.(Cebu International
Finance Corp. v. CA, et al., G.R. No. 123031,Gct 12, 1999.); and
c) Final Attachmen, (also known as Levy on Execution), which
is issued by the court to enforce a judgment that has become final and
executory. · ·
3. What is garnishment?
Garnishment is a species of attachment for reaching credits
belonging to the judgment obligor and owing to him from a stranger to
the litigation. It involves money, stocks, credits, and other incorporeal
property which belong to the party but is in the possessionor under the
control of a third person. Since the property involved in garnishment are
personal properties, garnishment is thus a levy on personal property.
(Caja .v. Nanquil, A.M. No. P-04-1885, Sept. 1~. 2004.)
it. What are the distinctions b.etween prellrnlnary ·attach-
ment and garnishment?
a) Preliminary attachment involves two persons only, namely
the plaintiff or any proper party (as obligee) and the defendant (as
obligor); while garnishment involvesthree persons, namely the obligee,
the obliger, and the garnishee; and ·
b) In preliminary·attachment, the property attached is actually
seized and taken into custody by the officer implementing the writ of
preliminary attachment, and by reason of the levy a specific lien is
acquired; while in 9arnishme_1Jt,there is no actual seizure of the property
which shall remain in the possession and custody of the garnishee.
5 _ Is service of summons upon the gamlsflee necessary for
the t~~I court to acquire jurisdi~tion over his person? ·
298
RULE 57 - PRELIMINARY ATIACHMENT
(iJc;) In order that the trial court may validly acquire jurisdiction to
bind~ person of the garnishee; it is not necessary that summons
be served upon him. In fact, the garnishee need not be impleaded as
a party to the case. All that is necessary for the trial court to _bind the
person of the garnishee is service upon him of the writ of garmst'lment.
Through service of ~he writ of arnishment, the garnishee becomes _a
(5&tual party') to, or forced interveno in, the case. (Perla Compama
de Seguros, Inc. v. Ram_olete, et al., G.R. No. 60887, Nov. 13, 1991.)
6. Who may apply for the issuance of a writ of preliminary
attac~ent? - and when? · ·
Yhe i:,laintiff (or c®er_pr9per p__grty, such as a '~~~!~~nt in a coun-
terclai[TI; the third-party plaintiff in a third-party co'P.'?lamt) may apply
for the issuance o~writ. of preliminary attachmenfat the commence-
ment of the action ~t any time before entry of judgmentfAfterentry of
judgment, the prevailing party should already move for the issu~nce of
a writ of execution. (Rule 57, Sec. 1.)
7. May the writ of preliminary attachment be issued:, after
1
perfection of the appeal? • · · ·• ~ ·
~. the rule authorizes the filing of the applicati?n/mot~onfor
the issuance of the writ at the commencementof an action or at any
time before entry of judgment." There can be entry of judgment only if
the judgment has already become final. Thus.Jf the case is on appeal,
there is no entry of judgment yet. (Rule 57, Sec. 1.) . .
If there is already an entry of judgment, then ~ is
the remedy, not attachment. But if the judgment is not y~t final ~nd
executory the remedy may either be attachment or execution pending
appeal, p;ovided, in the latter case, there is a good reason therefor.
a. May a writ o~ pre_liml~ary attachment be issued ex parte?
~Ex parte issuance of a writ of preliminary a~achment ~s
justifi~ the ground that defendant might a~scond or dispose of h1~
property before the writ is issued. Thus, the trial court _may grant a wnt
of preliminary attachment even before the defendant _1~ summoned or
· h ·df However he ex l'_arte issuance qf the nt may be m_~de
is ear ram. ' . . -- ·m· d it d 'bJ) bond
only UROn the filing with the coi.J of: (a7 an _a 1. avt an . ~ - a . -· .
I
(Solidbank v. cA~iR. N?: ~4588, _riay'29,--1_~91 [1,97 SCRA 66;3].)
299
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
But, while preliminary attachment may be granted ex parte, it
cannot be discharged without hearing. (Santos v. Aquino, Jr., Nos. G.R.
86181-82, Jan. 13, 1992 [205 SCRA 126).)
9. Defendant whose property was attached, moved for the
discharge of the attachment, contending that the writ of preliminary
attachment was improperly issued by the court for lack of notice to
him on plaintiff's application for the issuance of the writ. Rule on
the motion.
Motion denied. Notice to the defendant on plaintiffs application
for the issuance of the writ for preliminary attachment is not required
since a writ of preliminary attac~ment may b~ issued ex parte. .'Rule
57, Section 3 requires only affidavit and bond to be filed with the court
before it issues the order for the issuance of a writ of preliminary' attach-
":1e~:·(BF Homes v. ~A. G.R. No. 76879, Oct. 3,, 1 ~90.) . .· . :.. : .
- - 10. May the court, however, conduct a hearing before order-
ing the issuance of a writ of attachment?
Qs.'Rule 57, Section 2 provides:"An order of attachment may be
issue~~r erparte or UROn motion with notice and hearing by the
court x x x." In the latter case, summons should first be served on the
defendant. · \ 1
11. Where the writ of preliminary attachment is issued ex
parte, may levy pursuant to such writ be made before the defendant
is summoned?
· ~~plementation of the writ, or levy pursuant to the writ, issued
ex parte cannot be made validly unless the defendant is first summoned
as required by the rule on prior or contemporaneous jurisdiction.
(Solidbank v. CA, supra.) ·.
12. In attachment, what is the "prior or contemporaneous
rule?" · ,· ·- ·
I
" ior or contemporaneous rule (also called "rule on prior or
contemporaneous jurisdiction") is the rule that provides that no levy
on attachment shall be enforced unless it is preceded, or contempora-
neously accompanied, service of summons, together with a~opy of
the complaint, theJI.EP ication for attachmeQ_t, the~pplicant's affidavit
~nd, and the w.der and writ of attachment, on fhe defendant.
300
RULE 57-PRELIMINARY ATTACHMENT
· But this "prior or contemporaneousrule" shall not apply in th0'l
following instances: (~) where the summons could not be served per-
sonally or by substituted servicedespite diligent efforts; b) the defend-
ant is a resident of the Philippinestemporarilyabsent therefrom; (c) the
defendant is a non-residentof the Philippines;or (d)·the action is ohe in
rem or quasi in rem. (Rule 57, Sec. 5.) t, (Pl\aDr ~ kNecl
' . .... . .. · jf. J'<A~T 6'.ii.~~-M'
1~. De Leon was the registered owner of Lot No. 10 covered '"":~
by Transfer Certificate of Title No. 582. In January 1989, de Leon .., ~
sold the lot to Du under a deed of conditional sale.
.On April 28, 1989, de Leon again sold the same lot to Caliwag.
As a result, TCT No. 582 was cancelled, and Transfer Certificate of
Title No. 2200 was issued In favor of Caliwag.
Meanwhile, S~ronghold Insurance filed a civil action against
Caliwag for allegedly defrauding Stronghold. The civil action is
accompanif~d l?Y a prayer for a writ of preliminary attachment. On
August 7, 1990, the levy on ~~chment was annotated at the back
of TCT No. 2200.
On December' 21, 1990, Du filed an action against de Leon
and Caliwag for the annulment of the sale by de Leon in favor of
·caliwag. Du's action is anchored on her deed of conditional sale.
On January 3, 1991, Du caused a notice of /is pendens,to be
recorded and annotated on TCT No. 2200. ·
On February 11, 1991, a decision was handed dow~ in the
case of Stronghold, ordering Caliwag to pay Stronghold the.sum of
PB.6 Million. On March 12, 1991, a notice of levy on execution ~as
annotated on TCT No. 2200. The attached property was sold m. a
public sale. On August 3, 1991, TCT No. 2200 was cancelled and, m
lieu thereof, TCT No. 6444 was issued in the n~me of Stronghold.
on August 51 1992, Du was.able to secu~ a favorable judg-
,·. _:ment against de Leon and Caliwag. The judgment became fina_l and
/'
executory.
. Now, Du file~ an action against-Stronghold for the cancell~tion
of TCT No. 6444. Du claims priority rights over the property.by v1rtu.e
of her unregistered deed of conditional sale and her Notice of Lis
Peridens recorded on January 3, 1991.
Who between Du and Stronghold will prevail?
301

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Stronghold will prevail because its notice of levy on attachment
was duly recorded. Although Du bought the property first, his deed of
conditional sale was not registered. The rule is that an attachment that
is duly annotated on a certificate of title is superior to the right of a prior
but unregistered buyer.
Although D,u had caused a notice of /is pendens to be annotated
on TCT No. 2200 before the lot was sold in a public sale, still Stronghold
has superior rights because the rule is that the subsequent sale of the
property to the attaching creditor (Stronghold) retroacts to the date of
the levy (which is August 7, 1990). It should be noted that the notice of
levy on attachment was registered on August 7, 1990, while Du's notice
of /is pendens was recorded on January 3, 1991. (Du v. Stronghold
Insurance Co., Inc., G.R. No. 156580, June 14, 2004.)
:14. May a property in custodia /egis be attached? How?
Yes 'A prop~ in·custodia legis may be attached by doing all
the '1ngs: (a)~a copy of the writ of attachment with the proper
court or quasi-judicial agency; and (6) ~ notice of the attachment
upon the custodian of such property. (Riire57, Sec. 7.)
15. May a writ of preliminary attachment be issued against
the property of a municipality? ·. ·
@.
Suability is different from liability. (Municipality of Hagonoy v.
Judge Dumdum, Jr., G.R. No. 168289, March 22, 2010.) ·
~ 6. Suppose the property of the defendant has been ordered
attached, may he move to discharge or dissolve the attachment?
Yes, on any of the following grounds: a.) that the attachment
was improperly or irregularly issued or enforced; ~q) that the bond is
insufficient; and (c) that the attachment is excessive. If the attachment
is excessive, the discharge shall be limited to the excess. (Rule 57,
Sec. 13.)
But even if none of the foregoing grounds is present, he may still
move to discharge the attachment by making a cash deposit or filing a
counter-bond. (Rule 57, Sec. 12.)
But where the writ of attachment is discharged under any of the
grounds mentioned in Section 13, Rule 57, there is no necessity of filing
a cash deposit or counter-bond. The provision of Section 13 grants
302
RULE 57-PR
ELIMINARY ATTACHMENT
an aggrieved party relief fro b
m aseless and unjustifiable attachment
procured upon false allegations. (Benitez v IAC et al GR No 71535
Sept. 15, 1987.) · , ·• · · · ,
17. When ls a motion to discharge or dissolve attachment
not allowed?
': motion. t~ discharge or dissolve attachment is not allowed if
the writ of ~rehminary attachment is issued upon a ground which is at
the same time the applicant's cause of action. The reason is that the
I'I:
hearing on such a motion would be tantamount to a trial of the merits 'l
of the action .. (~CY Construction Group v. CA, G.R. No. 123358, Feb. I:
1, 2000; Ghwd,an v. Sandiganbayan, G.R. No. 139941, Jan. 19, 2001.)
The following grounds for attachment may also be the applicant's
I
I
cause of action:
a) 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 any other person in a fiduciary
capacity, or for a willful violation of duty; or
b) an action against a party who has been guilty of fraud in
contracting the debt or incurring the obligation upon which the action is
brought, or in the performance thereof.
For example: Plaintiff files a complaint against the defendant to I
recover a sum of money alleged to have been embezzled or fraudulently
misapplied by the defendant who was an agent of the plaintiff. Plc.3intiff
obtains a writ of preliminary attachment on the ground that his action
is for a sum of money embezzled or fraudulently misapplied by the
defendant. In this case, the ground for the attachment is at the same
time the cause of action of the plaintiff. Therefore; the defendant cannot
file a motion to dissolve or discharge the attachment by offering to
show the falsity of the factual averments in the plaintiffs application
and affidavits on which the writ was based and then invoke the ground
that the writ was improperly or irregularly issued because to allow him
to do so would result in the ventilation of the merits of the case at a
mere hearing of a motion.
In the above example, the only way the defendant n_,ay obtain
a dissolution of the attachment is to make a cash deposit or file a
counterbond.
303
I
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RULE 58
PRELIMINARY INJUNCTION
1. What requisites are necessaryfor the issuanceof a writ
of preliminary injunction? · •
The following are the requisites:
a) the existence o a right to be protected; and ,(b) the acts
against which the injunction is to be directed are violative of said right.
Thus, for a writ of preliminary injunction to issue, the existence of the
right and the violation thereof must appear in the allegation of the
complaint, and a preliminary injunction is proper only when the 'plaintiff
appears to be entitled to the relief demanded in his complaint. (Lopez v.
CA, G.R. No. 110929, Jan. 20, 2000 [322 SCRA 686].) . ..
..
In Australian Professional Realty, Inc., et al. v. Municipality of
· . :_ · · . . . ~h~rie~er. an application for a TRO is filed, the court may act on
Garcia, Batangas Province, G.R. No. 183367, March, 14, 2012, the
Supreme Court has explained the meaning of "clear legal rightr in this
wise: "A clear legal right means one clearly founded in or granted by law
or is enforceable as a matter of law. In the absence of a clear legal right,
the issuance of the writ constitutes grave abuse of discretion."
More to the point is Power Sites and Signs, Inc. v. United Neon,
G.R. No. 163406, Nov. 24, 2009, where the Supreme Court, citing
other cases, held: "A preliminary injunction may be granted only where
the plaintiff appears to be clearly entitled to the relief sought and has
substantial interest in the right sought to be defended. While the exist:.
ence of the right need not be conclusively established, it must be clear.
The standard is even higher in the case of a preliminary mandatory
injunction, which should only be granted 'in cases of extreme urgency;
where the right is very clear; where considerations of relative incon-
venience bear strongly in complainant's favor; where there is a willful
and unlawful invasion of plaintiffs right against his protest and remon-
strance, the injury being a continuing one; and where the effect of the
mandatory injunction is rather to reestablish and maintain a preexisting
continuing relation between the parties, recently and· arbitrarily inter-
rupted by the defendant, than to establish a new relation x x x."
304
••·---,u-,.,-,,,_111~111
. - . ··-··1
RULE 58-PR
ELIMINARY INJUNCTION
2. May a writ of preli I
. m nary Injunction be issued ex parte?
No, a wnt of preliminary in'u .
I
upon compliance with the follo J. n~ton cannot be issued exparte, but
application for injunction· (b) th wing. (a) there must be a hearing on the
opportunity for cross-ex~mina ~re_must be a reception of evidence with
prohibited acts are threat ~on, (c) there must be a finding that the
applicant's property will follene to be ~mmitted, irreparable injury to
ow, greater tnJury would b · flict d th
applicant than upon the dei . e m I e upon e
at law and the public ffi endant, apph~nt has no adequate remedy
0 rcers charged with the duty are unwilling or
.
unable to furnish adequate protection to the applicant. (/law at Buklod ng
Manggagawa v. NLRC, G.R. No. 91980, June 27, 1991 [198 SCRA 586].)
If great or irreparable injury would result to the applicant before
the . matter
. can be heard on notice, the court• after a 5ummary h eanng,
·
may issue a temporary restraining order effective for only 20 days from
service on the party enjoined. . ·
I~ t~e ~atter i~ of extre e urgency and the applicant will suffer
. grave injustlce and irreparable injury, the court may issue ex parte a
72-hour temporary restraining order .
the application only after all the parties have been notified and heard
in a summary hearing. Summary hearing may not be dispensed with.
·_(Dela Cruzv. Vil/a/on-Pomillos, A.M. No. RTJ-04-1853, June 8, 2004.)
Power Sites and Signs, Inc. v. United Neon, G.R. No. 163406,
Nov -. 24, 2009 explains the meaning of grave or irreparable injury in
these words: "It is settled that a writ of preliminary injunction should be
issued only to· prevent grave and irreparable injury, that is, injury that
is 'actual, substantial, and demonstrable. Here, there is no 'irreparable
injury' as understood in law. Rather, the damages alleged by the
petitioner, namely, 'immense loss in profit and possible damage claims
from clients' and the cost of the billboard which. is 'a considerable
· amount of money' is easily quantifiable, and certainly does not fall
within the concept of irreparable damage or injury as described in Social
Security Commission v. Bayona: 'Damages are irreparable within th_e
meaning of the rule relative to the issuance of injunction :-"here there rs
no standard by which their amount can be measured wt!h re~son~b~e
accuracy.' 'An irreparable injury which a court of ~q~1ty ~111 enJ?tn
includes that degree of wrong of a rep~ated and .contmum~ kind which
Produce hurt, ,inconvenience, or damage that can be estimated only
305
 ,,..
•1p_..::,-•·
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
by conjecture, and not by any accurate standard of measurement'. An
irreparable injury to authorize an injunction consists of a serious charge
of, or is destructive to, the property it affects, either physically or in the
character in which it has been held and enjoined, or when the property
has some peculiar quality or use so that its pecuniary value will not
fairly recompense the owner of the loss thereof. Here, any damage
petitioner may suffer is easily subject to mathematical computation
and, if proven, is fully compensable by damages. Thus, a preliminary
injunction is not warranted."
3. May the court deny outright an application for a writ of
prelim~inary
injunction? " _ · possessing equal power to grant injunctive relief. In Aquino v. Judge
an application for a writ of preliminary injunction may be .
denie outright by the court, with or without a hearing, upon showing
of its insufficiency. Rule 58, Section 6 states that: "The application
for injunction or restraining order may be denied, upon showing of its
insufficiency." Thus, the application may be denied outright if the ground
of insufficiency is apparent from the application itself.
4. What is the lifetime of a temporary restraining order?
a} the lifetime of a temporary restraining order, if issued by the
MTC or RTC, is 20 days from service thereof on the party sought to be
enjoined. If a 72-hour TRO is issued, the total period of effectivity of.the
TRO shall not exceed 20 days, including the original 72 hours;
b} if issued by the CA, the TRO shall be effective for 60 days
from service on the party sought to be enjoined;
c) if issued by the SC, the TRO shall be effective until further
orders. (Rule 58, Sec. 5.)
In computing the effectivity of a TRO, Saturdays, Sundays, and
holidays are not excluded, except when the last day of the period falls
on such days. (Marcos-Manotoc v. Judge Agcaoili, A.M. RTJ-98-1405,
April 12, 2000; Bank of the Philippine Islands, etc. v. CA, et al., G.R. No.
142731, June 8, 2006.)
5. If the court issues an order discharging the writ of
injunction, when will the order become effective?
An order discharging the writ of injunction is immediately effec-
tive. (Santiago v. Ombudsman, G.R. Nos. 99289-90, Jan. 27, 1993.)
306
1-
RULE 58 - PRELIMINARY INJUNCTION
I
,I
'I
6.. D~es t~e. Commission· on Human Rights have the
authority to issue mlunctlve writs? .
~ because it is not a court of justice. It is not even. a quasi-
judichifbody. (EPZA v. CHR, G.R. No. 101476, April 14, 1992.)
7· ~an a court issue a writ of injunction to stop the enforce-
ment of a Judgment renderedby another court or body of coordi-
nate or equal jurisdiction?
~ a . court. ca~ot interfer_e by injunction with judgments or
decrees of another court with concurrent or coordinate jurisdiction
Ju/ito Valenciano, Adm.. Matter No. MTJ-93746, Dec. 27, 1994, the
Supreme Court held that the act of the judge in interfering by injunction
with the judgments or orders of another court of concurrentjurisdiction
constitutes grave abuse of discretion and would subject the judge to
disciplinary action for judicial misconduct.
The exception' is, if a third party claimant is involved.
Thus, when a third party asserts a claim over the property levied
upon by the sheriff, said third party may vindicate his claim by an
independent action in the proper court which may issue an injunctive
writ to stop the execution of the judgment on the property claimed by
the third party. (Traders Royal Bank v. /AC, G.R. No. L-66321, Oct. 31,
1984 [133 SCRA 142]; Santos v. Bayhon, G.R. No. 88643, July 23,
1991 [199 SCRA 525]; Salas v. Castro, G.R. No. 100416, Dec. 2, 1992.)
8. The MTC decision was appealed to the RTC. In due
time, the RTC rendered a decision in the appealedcase. After the
decision had becomefinal, anotherRTCissued a writ of preliminary
injunction to prevent the implementation of the decision . of the
MTC as affirmed by the first RTC.In this problem, is the issuance
of a writ of preliminary injunction by another RTC to prevent the
implementation of the decision of the MTCcorrect?
~ Although the writ of preliminary injunction is directed against
the MTC the same has the effect of preventing the execution of the
decision on appeal of a Regional Trial Court which is a court of equal
rank and jurisdiction. (Dela Cruz v. Eisma, A.M. No. RTJ-00-1544,
March 15, 2000.)
307
 ... IIIU" ------·--- .. ,-~, .. ~,··~ ... ~ill!

I
,
I
' I
II
QUESTIONS AND ANSWERS IN ' I
REMEDIAL LAW

9. The general rule Is that Injunctions are not available to

take a property out of the possession and control of one party and
place It Into the possession of another. What are the exceptions?
I.
The exceptions are: RULE 59
a) the applicant has clearly established his right to the property
in question; RECEIVERSHIP
b) the defendant is clearly a mere intruder; and
c) where the action seeks to prevent a purchaser at anauctlon , .. 1. . May a Municipal Trial Co~rt appoint a receiver?
sale from molesting the debtor's co-owners whose rights have not been ·,. -~. Rule 59, Sect~on 1 provides that, upon a verified application,
affected by the sale. (Santos v. CA, G.R. No. 61280, Sept. 23, 1992; a recWer may be appointed by the court where the action is pending,
Navarro v. CA, G.R. No. L-44510, Jan. 27, 1991.). or by the Court of Appeals, or by the Supreme Court, or a member
thereof in the instances mentioned in the said section.

2. May a receiver be appointed ex parte?

-~In the appointment of a r~ceiver, a hearing is necess;ry and
II
a bond is required from the applicant. (Rule 59, Sec. 2.)

3. What Is the nature of the function of a receiver?

A receiver is a representative of the court appointing him for the
purpose of preserving and conserving the property under receivership
and preventing its possible destruction · or dissipation, if it goes to
the possession of another person. (Salientes v. /AC, et al., G:f~. No.
L-66211, July 14, 1995.)
A receiver acts in a fiduciary capacity and with imQartiality towards
all interested persons, (Arranza v. BF Homes, Inc., G.R. No. 131683,
I• June 19, 2000.) J

J '

308
309

RULE 60
RE PLEVIN
1. What Is the nature of replevln?
Replevin, in its general sense, is both a form of principal remedy
and a provisional relief. Replevin is also described as a mixed ,action
because it is partly in rem and partly in personam. It is in rem insofar
as recovery of specific personal property is concerned, and it is in
personam insofar as the claim for damages is concerned. (BA Finance
v. CA, G.R. No. 102998, July 5, 1996.)
' him. (Pardo v. vetesco, Adm. Matter P-90408, Aug. 7, 1992.)
2. Is the provisional remedy of replevln a~allable In a suit
to recover real property?
~t is available only in a suit involving recovery of possession
of personal property. (Rule 60, Sec. 1.) . · · him by proving his title thereto?
But replevin will not lie to seize personal property in custodia
legis, such as those seized under a valid search warrant. (Chua v. CA,
G.R. No. 79021, May 17, 1993.)
3. Plaintiff obtained a writ of replevin for the seizure of
machines placed by the defendant in the factory built on defend-
ant's land. Is the issuance of the writ of replevln correct?
~Although the machines are movable on their own, they have
become immobilized by destination because they are essential· and
principal elements in the industry. Thus, the machines are real properties
un er Art 415(5) of the Civil Code and cannot be seized by a replevin.
Except if the parties have agreed to treat them as personal or movable
p erties. (Serg's Products, Inc. v. PC/ Leasing and Financing, lnc.,
G.R. No. 137705, Aug. 22, 2000.)
Who may apply for the issuance of a writ of replevin? -
and when?
A party praying for the recovery of possession of personal pro-
perty may apply for the issuance o a writ of replevin, and he may do
310
RULE 60 - RE PLEVIN
so at t.he commencement of the action or at any time before defendant
files his answer. (Rule 60, Sec. 1.)
II
5. Rule 60, Section 6 requires the sheriff In replevln cases
to keep the property within five days after he has taken It from the
defendant. If the sheriff, without waiting for the expiration of the
five-day period, delivers the property to the plaintiff, Is the delivery
regular?
The delivery is· irregular. The= purpose of the five-day period is
to give the defendant an opportunity to object to the sufficiency of
plaintiffs bond or to require the return of the property to the defendant.
The defendant may require the return of the property to him by filing
a counter-bona. Note, however, that defendant's remedies are in the
alternative. If he 'objects to the sufficiency of plaintiffs bond or of the
surety thereof, he cannot anymore require the return of the property to
.. ' : ~ . ' .
6 If a personal property is seized by means of a writ of
replevln, may the defendant require the return of the property to
.
~ The remedy of the defendant is either to object to the
sufficiency of plaintiffs bond or to require the return of the property to
the defendant by filing a counter-bond. The question involving title to
the property should be litigated during the trial of the main case. (Serg's
Products, Inc. v. PC/ Leasing and Financing, Inc., G.R. No. 137705,
Aug. 22, 2000.) . .
I
I,
7 The plaintiff (or applicant) who files an application for
replevin must execute an affidavit and give a bond. What must be
stated in the affidavit?
The following: li
. a) . that the applicant is the owner of the groperty claimed or" is I'.
entitled to the possession thereof;
b) that the property is wrongfully oetain~ by the adverse pa~.
alleging the cause of detention thereof according to the best of his
knowledge, infonnation, and belief;
c) that the property has not been distrained or t~ken for a ~
assessment or a fine pursuant to law. or seized under a writ of execution
311
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW

or prelimlnary attachment, or otherwise placed under custodia /egis, or

if so seized, that it is exempt from such seizure or custody; and ! .
d) the actual market value of the property. RULE 61 1\
'I
I -
8. In replevin, the applicant must give a bond, executed SUPPORT PENDENTE LITE Ii
to the adverse party, in double the value of the property.What is
meantby ''value" of the property?
1. When may an application for support pendente lite be
It means actual market value of the property involved, not the filed?
probable value as declared by the applicant. If the valuation made by the . The application for support pendente lite may be filed by any party
applicant is disputed by the defendant, then the court must determine at the commencement of the proper action or proceeding, or at any time
first the actual market value of the property. (Citibank v, CA, G.R. No. prior to the judgment or final order. (Rule 61, Sec. 1.)
61508, March 17, 1999.)
·I .
2. In a criminal action, may the court order the accused to
9. What are the requisites that defendant'must coinply with provide support "pe'iic:leiite"lite?
so that he may recover on the replevin bond (or on the bond for @. if all the .following requisites are present:
preliminary attachment,injunction, or receivership)?
The following: · a) the child is born to the offended party allegedly because of
,, the crime;
a) that the defendant-claimant has secured a fa~or~ble judg-
ment in the main action, meaning that the plaintiff has no cause of b) the civil liability arising from the criminal action includes
action and was not therefore entitled to the provisional remedy of support for the said offspring; and
replevin; " c) the civil aspect of the criminal action has not been waived,
b) that the application f~r damages, showing claimant's right reserved, or instituted prior the filing of the criminal action. (Rule 61,
thereto and the amount thereof, must be filed in the same action before Sec. 6.)
trial or before appeal is perfected or before the judgment becomes
3. Is the order fixing the amount of support pendente lite
executory;
final?
c) that due notice must be given to the other party and his
surety or sureties, notice to the principal not being sufficient;
@. The trial court's order fixing. the amount of S~PP.Ort pen~ente
Ute is not final in character because 1t can be the subject of rnodiflca-
d) that there should be a proper hearing and the award for. tion,· depending on the changing conditions affecting the liability of the
damages should be included in the final judgment. (Development Bank obliger to pay the amount fixed for support. (San Juan v. Valenzuela, et
of the Philippines v. Carpio, et al:, G.R. No. 195450, Feb. 1, 2017, citing al., G.R. No. L-59906, Oct. 23, 1982.) ·
Malayan Insurance Co., Inc. v. Salas, 179 Phil. 201, 206 [1979})
;.a. · If adverse party fails or refuses to comply with an o~~er
10. Within what area may a writ of replevin be served? granting support pendente lite, what is·the remedyof the prevalllnq
party?
A writ of replevin, whether issued by the RTC or MTC, may be
served anywhere in the Philippines. (SC Resolution dated Jan. 11, 1983 . . His remedies are:
providing for the Interim Rules and Guidelines for the Implementation a) file a motion for execution of the order granting support
11
of B.P. 129.) pendente lite; or
I
312 313
·I

b -
 Ill
RULE 63
DECLARATORY RELIEF AND SIMILAR
REMEDIES
1. What is declaratory relief?
Declaratory relief is a special civil action brought in the Regional
Trial Court by a person who is(rnteresteii} under a deed, will, contract,
or other written instrument, or whose ajghts are affecteq)by a statute,
executive order or regulation, ordinance, or any other government
regulation, before breach or violation thereof, asking the court to
determine any question of construction or validity arising, and for a
declaration of his rights or duties, thereunder. (Rule 63, Sec. 1.)
2. What actions may be instituted as special civil actions
for declaratory relief.
The following:
a) an action for reformation of an instrument; ·' · '
b) an action to quiet title to real property or to remove clouds
therefrom; and ·
c) an action to consolidate ownership over. a real property
under Article 1607 of the Civil Code. (Rule 63, Sec. 1.)
3. The rule on declaratory relief is stated in Section 1, Rule
63 of the 1997 Rules of Civil Procedure, and it reads:
"Any person interested under a deed, will, contract
or other written instrument, 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.
316
L
RULE 63 - DECLARAJ
ORY RELIEF AND SIMILAR REMEDIES
. A~ action for the reformation of an instrument to
quiet ti.tie to real property or remove clouds therefrom ~r to
consolidate ownership under Article 1607 of the Civil Code,
may be brought under this Rule."
In .~anao, et al. v.. Ta~pa,et al., G.R. No. 181303, Sept. 17, 2009,
the petitioners (plaintiffs m the case below) filed an action against
the respondents ( defendants in the _case below) for quieting of title
ov~r a parc~I of !and with an assessed value of P410. They filed
their complaint with the Regional Trial Court because, according to
them, under the second paragraph of the aforecited rule an action
for quieting of title may be brought under Rule 63; and' under the
first paragraph of Section 1, Rule 63, the action should be brought
"in the appropriate Regional Trial Court." The RTC, however, dis-
missed their complaint motu proprio for lack of jurisdiction. Is the
RTC correct?
'@,, the RTC is corre~t in dismissingthe complaint.
Tlie first paragraph of Section ·1: Rule 63 must be differentiated
from the second paragraph. The first paragraph deals with action for
declaratory relief which should be filed with the appropriate RTC. The
second paragraph refers to (1) action for reformationof instrument; (2)
action to quiet title; (3) action to consolidate ownership. The 'second
r>aragraRh must be read in relation to R.A. 7691. Thus, w~ere the
assessed value of the land in an action for quieting of title does not
exceed P50,000 (in Metro Manila) or P20,000 (in other places), it is the
Municipal Trial Court that has jurisdiction.
Who may file a petition for declaratory relief? What is its
purpose? What are its essential requisites? · ·
A petition for declaratory relief may be filed by a person who is
interested under a deed, a will, a contract or other written instrument,
and whose rights are affected by a statute, an executive order, a regu-
. or an ordlmance.
I ation s: e rz
- . . v t '
. The. purpose of the remedy is to interpret or to determine the
validi!Y of ttie written instrument and to seek a judicial declaration of
the-parties' rights and obligations thereunder.
The essential requisites of the special civil action for declaratory
relief are: (1) there is justiciable controversy; (2) the controversy_ is
between persons whose interests are adverse; (3J the party seeking
317
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
the relief has a legal interest in the controversy; and (4) the issue is ripe
for judicial determination.
In declaratory relief, the concept of a cause of action under
ordinary civil action does not strictly apply because an action for
declaratory relief presupposes that there has been no actual breach of
the instruments involved or of rights arising thereunder. But a breach
or violation should be impending, imminent, or at least threatened.
(Velarde v. Social Justice Society, G.R. No. 159357, April 28, 2004.)
Thus, a person who is not a party to a contract cannot file a petition
for declaratory relief and seek a judicial interpretation of such contract.
(Atlas Consolidated Mining & Development Corporation v. CA. et al.,
G.R. No. L-54305, Feb. 14, 1990.)
A justiciable controversy is a definite and concrete dispute touch-
ing on the legal relations of parties having adverse legal interests:_which
may be resolved by a court of law through the application of a law.
,\
An issue is ripe for judicial determination when litigation is -inevi-
table or when administrative remedies have been exhausted. (Bayan
Tele~mmunications, Inc. v. Republic of the Philippines, et al., G.R. N<;>.
161140, Jan. 31, 2007.)
{• 5. A special civil action for declaratory relief may be brought
only before the breach or violation of the statute or instrument; What
happens if during the pendency of the action, a breach or violation
of the statute or instrument occurs?
If during the pendency of the case and before the termination
thereof, a breach or violation of the statute or instrument takes place,
the special civil action for declaratory relief is converted into an ordinary
civil action, and the parties shall be allowed to file such pleadings as
may be necessary or proper. (Rule 63, Sec. 6.)
In special civil action for declaratory relief, a third-party complaint
is not allowed because no material relief is being sought in the action.
If, however, the special civil action for declaratory relief is converted
into an ordinary civil action by reason of the breach or violation of the
statute or instrument, then a third-party complaint may now be filed by
the defendant. ' of an executive order is not judicial, quasi-judicial, or a mandatory act,
But, a compulsory counterclaim is allowed in declaratory relief.
(The Visayan Packing Corporation v. The Reparation Commission, et
al., G.R. No. L-29673, Nov. 12, 1987.)
318
RULE 63 - DECLARAT
ORY RELIEF AND SIMILAR REMEDIES ;I
! t
6. X leased to y a
I
I
I
y violated the terms parcel of land for a period of 20 years.
ti f and conditions of the lease contract X now
files an ac on or reformation of the lease contract. May the action
prosper?
~ the action may not prosper. Since an action for reformation
of lnstro'~ent or cont~act is instituted as a special civil action for decla-
rato~ rell_ef, such action for reformation may no longer be brought after
the violation of the lease contract. (Bentir, et al. v. Leanda, et al., G.R.
No. 128991, April 12, 2000.)
The remedy of X is to file an ordinary civil action either for specific
performance or rescission, whichever is appropriate - with damages
in either case.
,1
. A petition was filed with the Supreme Court to enjoin
Joseph .Ejercito Estrada "from exercisingthe powers and authority
of the President under the Constitution" or "to declare that the
occupation of the Office of the President of the Philippine by the
Vice President is constitutional and legal." Does the Supreme
Court have jurisdiction over the petition?
·, ~ The petition is essentially one for declaratory relief over
which the Supreme Court has no jurisdiction. A special civil action for
declaratory relief falls under the exclusive jurisdiction of the Regional
Trial Court and is not within the original jurisdiction of the Supreme
Court, even if only questions of law are involved. (B.P. Big. 129, Sec.
19; Rule 63, Sec. 1; Soriano, et al. v. Estrada, G.R. No. 146528, Feb. 6,
2001 [and other consolidated cases].)
8. Is a petition for certiorari and prohibition under Rule
65 filed with the Supreme Court the correct remedy to nullify an
executive order issued by the Office of the President?
No. In Galicto v. Pres. Benigno Simeon C. Aquino, et al., G.R.
No. 193978, Feb. 28, 2012, it was held that under the Rules of ~ourt,
petitions for certiorari and prohibition are available. as re~ed1es to
question judicial, quasi-Judlclal, and mandatory acts. Since the issuance
a petition for certiorari and prohibition is an incorrect remedy. Instead,
a petition for declaratory relief under Rule 63 of the Rules ~f Court ~l~d
with the Regional Trial Court is the proper recourse to assail the valldity
of an executive order.
319
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
In Uga Ng Mga Barangay National v. City Mayor of Manila, cited
in Galicto, the Supreme Court dismissed the petition for certiorari to set
aside an ordinance enacted by the City Council and an executive order
issued by the City Mayor, explaining that a petition for declaratory relief
should have been filed with the RTC. The enactment of the ordinance
by the City Council and the issuance by the City Mayor of the executive
order were done in the exercise of legislative and executive functions.
It was further noted in this case that although the petition is styled.
as a petition for certiorari, in essence, it seeks the declaration by the
Supreme Court of the unconstitutionality or illegality of the questioned
ordinance and executive order. Therefore, it partakes of the nature of
a petition for declaratory relief over which the Supreme Court has only
appellate, not original, jurisdiction. The Supreme Court does not have
original jurisdiction over a petition for d~claratory relief even if only
questions of law are involved.
In Southern Hemisphere Engagement Network, Inc. 'v, Anti-
Terrorism Council, also cited in Gelicio, the Supreme Court also
dismissed the petitions for certiorari and prohibition challenging the
constitutionality of RA. 9372, otherwise known as the Human Security
Act of 2007, since the respondents (members of the Anti-Terrorism
Council, did not exercise judicial or quasi-judicial functions.)
Also, Yusay v. CA. G.R. No. 156684, April 6, 2011, teaches that
certiorari will not lie against the Sangguniang Panglungsod, which is
not part of the judiciary settling an actual controversy involving legally
demandable and enforceable rights when it adopted Resolution No.
552, but a legislative and policy-making body.
320
RULE 64
REVIEW OF JUDGMENTS-AND FINAL ORDERS
OF THE COMMISSION ON ELECTIONS AND
THE COMMISSION ON AUDIT _
. ~
1. What is the mode by which a judgment or final o.rder or
resolution of the Commission on Elections and the Commission on
Audit may be reviewed?
It is by special civil action of certiorari under Rule 65 to be brought
by the aggrieved party to the Supreme Court within 30 days (not 60
days) from notice of the judgment or final order or resolution sought to
be reviewed. (Rule 64, Secs. 1 and 2.)
2. , May a judgment or final order or resolution of a division
of the COMELEC be broughtto the Supreme Court on certiorarn
~nly judgment or final order or resolution of the COMELEC
En Banc may be brought to .the Supreme Court on a petition for cer-
tiorari under Rule 65. (Ambil, Jr. v, COMELEC, etc., et ~/., G.R. No.
143398, Oct. 25, 2000.)
321

RULE 65
CERTIORARI. PROHIBITION. AND
MANDAMUS
1. What h, Certiorari?
Certiorari is a speclai civil action against a tribunal, board, or
officer exercising judicial or quasi-judicial function which is alleged in a
verified petition filed by an aggrieved party to have acted without juris-
diction or in excess of its 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, praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board, or officer, and granting such inci-
dental reliefs as law and justice may require. (Rule 65, Sec. 1.)
A petition for certiorari requires the concurrence of these two
requisites: (a) a tribunal, a board, or an officer exercising judicial or
quasi-jud1aa functions has acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdic-
tion; and (b) there is no appeal or any plain, speedy, and adequate
remedy in the ordinary course of law. (Career Executive Board v. Civil
Service Commission, G.R. No. 197762, Man;h 7, 2017.)
Petitioners are required under the second paragraph of Section 1,
Rule 65 of the Rules of Court, to append to their petition for cerliorari a
copy of the motion for reconsideration they filed before the respondent
court (Rodson Philippines, Inc., et al. v. CA, et al., G.R. No. 141857,
June 9, 2004.)
2. Who may file a petition for certiorarn
A party aggrieved by the acts or proceedings issued or taken
by the tribunal, board, or officer exercising judicial or quasi-judicial
functions may file a petition for certiorari. (Rule 65, Sec. 1.)
3. What documents should accompany a petition for car·
tlorarl,(as well as petition for prohibition) under Rule 65?
322
RULE 65 - CERTIORARI, PROHIBITION, ANO MANDAMUS
There are two sets of documents to be attached to the petition,
as follows:
Tho first set consists of certified true copies or tmrjudgment. order,
or resolution subject of the petition. Duplicate originals or certified true
copies thereof must be appended to the petition to enable the reviewing
court to determine whether the court, body, or tribunal which rendered
the same committed grave abuse of discretion.
The second set consists of the pleadings. portions of the case
record and other documents which are material and pertinent to the
petition. Mere photocopies thereof may be attached to the petition. (Air
Philippines Corp. v. Zamora, G.R. No. 148247, Aug. 7, 2006.)
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. The rule does not specify the precise documents. pleadings.
or parts of the records that should be appended to the petition other
than the judgment, final order, or resolution being assailed. These
documents and pleadings are generally the ones needed by the
reviewing courts to decide whether to give due course to the petition.
The initial determination of what pleadings, documents or orders are
relevant-and pertinent to the petition rests on the petitioner. Thereafter,
the CA will review the petition and determine whether additional
pleadings, documents, or orders should have been attached thereto.
(Arturo Condes, et al. v. CA, et al., G.R. No. 161304, July 27, 2007.)
. The Regional Trial Court dismissed a criminal case on
the ground of, say,prescription of the offense. May the complainant
(or the private prosecutor representing the complainant) file a
petition for certiorari under Rule 65 in the name of the People of
the Philippines to contest the dismissal?
@ A petition for ce~i<?,:Sri filed by the compl.ainant or ~e _private
prosecutor, although with the conformity of the city or provincial pro-
secutor, may be dismissed or denied summarily. While it is the city
or provincial prosecutor who represents the People in. criminal. cases
before the trial court, it is only the Solicitor General who rs authonzed to
bring or defend actions on behalf of the People once the case is brought
up before the Court of Appeals or the Supreme Court. (People v. Nano,
G.R. No. 94639, Jan. 13, 1992 [205 SCRA 155).)
323
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
But, in Labaro v. Panay, et al., G.R. No. 129567, Dec. 4, 1998,
the private complainant(in a rape case), representedby the assistant
provincialprosecutor, filed a petition for certiorari in the SupremeCourt,
questioning the grant of bail to the accused. Although the assistant
provincialprosecutorcannot representher, for it is the SolicitorGeneral
who is authorized to represent the state or the People in all criminal
proceedingsbefore the Court of Appeals or the SupremeCourt, yet, in
this case, the SupremeCourt requiredthe Officeof the SolicitorGeneral
to file its comment - which it did, and its comment was favorable to
the petition. By filing its comment, the Office of the Solicitor General
was said to have ratifiedand adoptedas its own the petitionfiled by the
complainant.
5 Invoking his right to speedy trial, the accused moved for
the dismissal of the criminal case. The Regional Trial Court granted
the motion and dismissed the case. The records show, however,
that the delay In the trial was mainly due to the fault of the accused
who repeatedly asked for postponement. The private offended
party (the civil aspect was Instituted In tho criminal case) flied with
the Court of Appeals a petition for certiorari under Rulo 65 In her
own name. The accused opposed tho petition, arguing that the
private offended party cannot file a special civil action of certiorari
with the Court of Appeals without the Intervention of tho Solicitor
General. Is the argument of the accused correct?
No.l Section 1, Rule 65 provides that a special civil action of
certio'rvt/ may be filed by the person aggrieved.The aggrieved parties
are the State and the private offended party. The private offended
party has an interest in the civil aspect of the case, so he may file such
special civil action questioningthe action of the respondent court on
jurisdictional ground. But, the private offended party should not bring
the action in the name of the People of the Philippines.He must bring
it, as in this case, in his own name. (Dela Rosa v. CA. et a/., G.R. No.
116945, Feb. 9, 1996.)
6. What are the distinctions between petition for review on
certiorari as a mode of appeal (under Rule 45) and a special civil
action for certiorari (under Rule 65)?
The distinctionsare:
a} In appeal by certiorari, the petition is based on questions
of law which the appellant desires the appellate court to resolve. In
324
> ._
RULE 65 - CERTIORARI, PROHIBITION,AND MANDAMUS
certiorari as an originalaction, the petitionraisesthe issue as to whether
the lower court acted without or in excess of jurisdiction or with grave
abuse of discretion.
b) Certiorari, as a mode of appeal, Involves the review of the
judgment, award, or final order on the merits. The original action for
certiorari may be directed against an interlocutoryorder of the co~rt
prior to appeal from the judgmentor where there ls no appeal _o~ any
other plain, speedy, or adequateremedy.
c} Appeal by certiorari must be made within the reglementary
period for appeal. An originalaction for certiorari may be filed not later
than 60 days from notice of the judgment, order, or resolution sought
to be assailed or notice of the order denying petitioner's motion for
reconsideration.
d) Appeal by certiorari stays the judgment, award, or order
appealed from. An original action for certiorari does not stay the
challenged proceedings, unless a writ of preliminary Injunction or a
temporary restraining order shall have been Issued.
e) In appeal by certiorari, the petitioner and respondent are
tho original parties to the action, and the lower court or quasi-Judicial
agency Is not to be lmpleaded. In certiorari as an original action, the
partlos are the aggrieved party, as petitioner,against the lower court or
quasi-judicial agency and the prevailingparties, as respondents.
f) tn certiorari for purposesof appeal, the prior filing of.a_ motion
for reconsideration ls not required. In certiorari as original ,action, a
motion for reconsideration is a condition precedent, subject to certain
exceptions.
g) In appeal by certiorari, the appellate court Is In the exercise
of its appellate jurisdiction and power of review. In qertlorarl as. an
original action, the higher court exercises original jurisdiction under its
power of control and supervisionover the proceedingsof lower courts.
h) Appeal by certiorari Is filed only with the Supreme Court.
Original action for certiorari may be filed with the RTC, CA, or SC. (Paa
V. CA, G.R. No. 126560, Dec. 4, 1997.)
7. May an appeal under Rule 45 and a special civil action
under Rule 65 be Incorporated In a single petition?
@)
325
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
In Republic of the Philippines v. Hon. Mangotara, et al., G.R. No.
170375, July 7, 2010, the Supreme Court explained: It is apparent in
the case at bar that the Republic availed itself of the wrong mode of
appeal by filing Consolidated Petitions for Review under Rule 45 and
for Certiorari under Rule 65, when these are two se1parate remedies that
are mutually exclusive and neither alternative nor successive. Neverthe- '-
less, the Court shall treat the Consolidated Petitions as a Petition ·for ·
Review on Certiorari under Rule 45 and the allegations therein as errors·
of judgment. As the records show, the Petition was filed on time under
Rules 45. Before the lapse of the ~- 5-:day reglementary period to appeal
under Rule 45, the Republic filed with the Court a motion for extension
of time to file its petition. The Court, in a Resolution. dated January 23,
2006, granted the Republic a 30-day extensic>i{v/hich was to expire on
December 29, 2005. The Republic was able to file its Petition on the
last day of the extension period. In Ligon v. Court of Appeals, G.R. No.
127683,. Aug .. 7, 1998, where the petitioner described her petition as
"an appeal under Rule 45 and at the same time as a special civil action
of certiorari under Rule 65 of the Rules of Court," this Court, in frowning
over what it described as a "chimera," reiterated that the remedies of
appeal and certiorari are mutually exclusive and not alternative nor
successive. (See also: Nunez v. GS/S Family Bank, G.R. No: 163988,
Nov. 17, 2005) ·
8. Is certiorari {under Rule 65) the remedy for errors of
judgment? :,
• ®) Certiorari is not the proper remedy for errors of judgment.
Errors of judgment are correctible by appeal; errors of jurisdiction ·are
reviewable by certiorari. (Ongsitco, et al. v. CA, et al., G.R. No. 121527,
March 29, 1996, citing Florenz Regalaqo, I Remedial law Compendium
H98BJ.J
And, where appeal is available as an adequate remedy, certiorari
will not lie. Thus, Rule 65 provides that the remedies of certiorari and
prohibition are available only when "there is no appeal or any plain,
speedy and adequate remedy in the ordinary course of law." And,
mandamus may only be resorted to when · "there is no other plain,
speedy and adequate remedy in the ordinary course of law."
In Angara v. Fedman Development Corporation, G.R. No. 156822,
Oct. 18, 2004, the Supreme Court has said that the remedy against
an interlocutory order is not to resort forthwith to certiorari but to con-
326
RULE 65 - CERT/ORA
RI, PROHIBITION,AND MANDAMUS
tinue with the case in due co urse and, when an unfavorable verdict is
l
, \I
handed dowhn, tothtake an appeal in the manner authorized by law.
However
. • w ere ere are spec,a · 1 circumstances
•
clearly demonstrating.• .I
the ma_dequacy of an appeal, the special civil action of certiorari may 1
' II
~xceptionally ~e all_owe_d. Certiorari under Rule 65 is a remedy narrow I
m ~cope and inflexible m c~aracter. It is not a general utility tool in the
l~~al. workshop. I~ can be invoked only for an error of jurisdiction. Its
pnrJG1pal function is to keep an inferior tribunal within its jurisdiction .
I I
9. Notwithstanding notice to him the accused faiiecno· 11
II .I
appear durir,tQ the promulgation of judgme~t. The RTC promulgated
the· judgment, convlctlnq. him .,of the crime charged. Later, the
accused moved for reconsideration, questioning the validity of the
I
promulgation, the factual and legal basis Q( his conviction, and
the correctness of the penalty imposed. The regional trial court
I
denied his motion for reconsideration. Accused then filed with the I
I
Court of Appeals a petition for certiorari under Rule 65. The Court
of Appeals granted the petition and acquitted the accused. Is the
acquittal of the accused correct?
. @. Errors of the trial court in its judgment is correctible only by
appeal, not in a certiorari proceedings. In a petition for certiorari under
Rule 65 as in the problem presented, the Court of Appeals is authorized
to resolve only errors of jurisdiction and not errors of judgment. (Almuete
v. People, G.R. No. 179611, March 12, 2013.)
~ 0. What is the remedy against a decision or resolution
issued by the DOLE Secretary?
The remedy is to file a timely Motion for Reconsideration, and
if denied, file a special civil action for certiorari under Rule 65. (SMC
Quarry 2 Workers Union-February 6 Movement Local Chapter No.
1546 v. Titan Megabags Industrial Corp., G.R. No. 150761, May 19,
2004; Also: University of Immaculate Concepcion v. Secretary of Labor,
G.R. No. 143557, June 25, 2004.)
· ir• 11 v : The RTC issued a search warrant. On motion of the
person against whom it was Issued, the· RTC quashed the search
warrant. What is the remedy against the order quashing search
warrant? Is it appeal or a petition for c~rtiorarl under Rule 65?
Worldwide Web Corporation, et al. v. People of the Philippines, et
al., G.R. No. 161106, Jan. 13, 2014, teaches that:
327
 QUESTIONS AND ANSWERS IN RULE 65 - CERT/ORA
RI, PROHIBITION,AND MANDAMUS I I
REMEDIAL LAW

An application for search warrant may be filed as an incident in a
main criminal case already filed in court. Or, such an application may be
filed in court in anticipation of one yet to be filed (here, the application
for search warrant is instituted as a principal proceeding prior to the
filing of the criminal action).
Where the search warrant is issued as an incident in a pe~
criminal action, an order quashing the search warrant is merel~
~ and therefore not appealable. Such order may only be assailed
in a petition for certiorari under Rule 65.
But an order quashing a search wa ued independently
prior to the filing of a criminal action is a final orde that can be the
proper s~bject of an appeai.
12. As held in Republic of the. Philippines · v. Pantranco
North Express, Inc., et al., G.R. No. 178593,Feb. 15, 2012,the rule
requires the filing of a motion for reconsideration and filing it on
time before an aggrieved party may resort to petition for certiorari
under Rule 65. What is the reason for the rule? Are there instances
Rule 65. (University of Immaculate Concepcion, et al. v. Secretary of
Labor, et al., G.R. No. 143557, June 25, 2004.)
B~t, there are.a few instanceswhen certiorari may be resortedto
even without first fihng a motionfor reconsideration,and these are:
a where the order is a patent nullity as where the court a quo
has no jurisdiction; '
. · b) where the questionsraisedin the certiorari proceedinghave
been duly r~ised and passedupon by the lower court, or are the same
as those raised and passedupon in the lower court;
· . . c) where there is an urgent necessityfor the resolution of the
question and any further delay would prejudice the interests of the
government:or the petitioneror the subjectof the action is perishable;
. fl',
·' · d) · . where, under the· circumstances,a motion for reconsidera-
tion would be useless;· ·
e) where petitionerwas deprivedof due process, and there is
extreme urgency for relief;
.. -:. .

when certiorari under Rule 65 may be resorted to without first filing 1 1 i f)' where, in a criminal case, relief from an order of arrest is
a motion for reconsideration? urgent and the gr_antingof such relief by the trial court is improbable;
The reason is that motion for reconsideration will afford the res- g) where the proceedingsin the lower court are a nullityfor lack
pondent court an opportunity to correct the errors imputed to it. (Tan v. of due process; ·
CA, G.R. No. 108634, July 17, 1997 [275 SCRA 568].) h) where the proceedingswere ex parte or in which the peti-
The special civil action of certiorari may be resorted. to. only if .tloner had no opportunityto object; and
there is no appeal, or any plain, speedy, and adequate remedy in the · · : i) :where the issue'ralsed is one purely of la~ or where public
ordinary course of law. A motion for reconsideration has been held to interest is' involved. (Marawi Marantao General Hospital, Inc. v. CA, et
be a plain, speedy, and adequate remedy in the ordinary course of law. a( G.R.' No. 141008, Jan. 16, 2001.)
Explaining the indispensable nature of a motion for reconsidera-
tion before a party may file a petition for certiorari, the Supreme Court,
.. : ... 1·3. Wh.at is th~.,
proper remedy of an aggrieved party to
in Republic of the Philippines, represented by the Privatization and assail .the resolution of the.Ombudsman finding probable cause (or
·lack:of probable cause) ln a prellmlnary investigation of a criminal
Management Office v. Pantranco North Express, Inc., et al., G.R. No.
178593, Feb. 15, 2012, pithily said: "The well-established rulerls that case?. . .
a motion for reconsideration is an indispensable condition before an "' The re~edy is to file a. petitionfo~ certiorari.underRule ~5 w!th the
aggrieved party can resort to the special civil action for certiorari under Supreme Court. (Tirol, Jr. v. Del Rosano, 376 Phil. 115_[1991], Kuizon v.
Rule 65 of the 1997 Rules of Civil Procedure, as amended." Desierto, G.R. Nos. 140619-24, March 9, 2001;
,Ombudsman, G.R. Nos. 158613-14, Feb. 22, 2
~~~e;s ~-
;
Offic~~~:~:
eviet» v. ,
Take note that a second motion for reconsideration, being pro
forma, does not suspend the period to file a petition for certiorari under
et al., G.R ... No: ,169098,_.<?,qt. 12, 2006:J. ·

329
328
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
14. What Is the proper remedy of an aggrieved party to assall
the decision of the Ombudsman In administrative disciplinary
cases?
The appropriate remedy is an appeal to the Court of Appeals
by filing a petition for review under Rule 43 of the 1997 Rules of Civil
Procedure. (Fabian v. Desierto, G.R. No. 129742, Sept. 16, 1998.)
15. What is the remedy of the complainant whose complaint
is dismissed by the assistant prosecutor conducting preliminary
investigation?
His remedy is to appeal to the Secretary of Justice. If the Secre-
tary of Justice dismisses his appeal, he must file a motion for recon-
sideration. If his motion for reconsideration is denied by the Secretary
of Justice, he may now file a petition for certiorari [under Rule 65] with
the Court of Appeals. (Fil!3dams Pharma, Inc. v. CA, G.R. No. 132422,
March 30, 2004.)
ti .
The prosecutor in a preliminary investigation does not determine
the guilt or innocence of the accused. He does not exercise. adjudi-
cation nor rule-making functions. Preliminary investigation is merely
inquisitorial, and is often the only means of discovering the persons
who may be reasonably charged with a crime and to enable the fiscal
to prepare his complaint or information. It is not a trial of the case on
the merits and has no purpose except that of determining whether a
crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof. While the fiscal makes that
determination, he cannot be said to be acting as a quasi-court, for it is
the courts, ultimately, that pass judgment on the accused, not ttie fiscal.
Hence, the Office of the Prosecutor is not a quasi-judicial body;
necessarily, its decisions approving the filing of a criminal complaint are
not appealable to the Court of Appeals under Rule 43. Since the ORSP
(Office of the Regional State Prosecutor) has the power to resolve
appeals with finality only where the penalty prescribed for the offense
does not exceed prision correccionet, regardless of the imposable
fine, the only remedy of petitioner, in the absence of grave abuse of
discretion, is to present her defense in the trial of the case.
With the Supreme Court ruling in Bautista that the Office of the
Prosecutor was not covered by the appellate process under Rule 43
of the Rules of Court, what then was petitioner's remedy from the
330
RULE 65 - CERTIORARI, PROHIBITION AND MANDAMUS
'
resolution of the Assistant Prosecutor dismissing his complaint? Based
on the 1993 Revised Rules on Appeals from Resolutions in Preliminary
investigations or Reinvestigations-nowthe 2000 NPS Rule on Appeals
_ the petitioner could appeal to the Secretary of Justice. In this case,
the petitioner did appeal to the Secretary of Justice but his appeal was
dismissed. His motion for reconsideration was also dismissed. Since
there was no more appeal or other remedy available in the ordinary
course of law, the petitioner correctly filed a petition for certiorari with
the. Court of Appeals, O!"' the ground of grave abuse of discretion.
:16. What is prohibition?
Prohibition is a special civil action against a tribunal, corporation,
board, officer, or person exercising judicial, quasi-judicial, or ministerial
function which is alleged in a verified petition filed by an aggrieved
party to be acting or about to ·act without jurisdiction or. in excess of
its 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, praying that judgment be
rendered commanding the respondent to desist from further proceed-
ing in the action or matter specified therein, or otherwise granting such
incidental reliefs as law and justice may require. (Rule 65, Sec. 2.)
17 Is prohibition under Rule 65 the remedy to invalidate an
IRR (implementing rules and regulati~ns) issued by a government
agency pursuant to its ·quasi-legislative power expressly author-
ized by law?
~. prohibition is not the remedy. ~here ~e princi~al rel~et
sou~s to invalidate an IRR, tne remedy rs an ordinary action f~r its
nullification which properly falls under the jurisdiction of the ~eg1onal
Trial Court.
In Holy Spirit Homeown~rs Association, Inc., et al. v. Secretary
Michael Defensor, G.R. No. 163980, Aug. 3,_ ~006 [En Ba~~l: the peti-
tioners filed with the Supreme Court a petition for prohibition under
Rule 65 of the 1997 Rules of Civil Procedure to preven_t respondents
from enforcing the Implementing Rules and Regulations (llr) t of
R A No 9207 otherwise known as the National Governm~nt en er
H~~sin . and Land Utilization Act of 2003. !he. IRR was issued by
th g d t pursuant to their quasi-leg1slat1ve power expressly
e respon en s h ftion the Supreme Court
authorized by RA 9207 · In dismissing t e pe 1 '
331
 · ·,w~
I 65
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
ruled that prohibition is not the proper remedy to assail an IRR issued
in the exercise of a quasi-legislative functions. Prohibition lies against
judicial, quasi-judicial, or ministerial functions, but it does not lie against
legislative or quasi-legislative functions.
•. 18. What are the distinctions between certiorari and prohi-
bJJion?
•1
The following are the distinctions:
a{ the purpose of certiorari is to correct respondent's act by
annulling the proceedings; the purpose of prohibition is to prevent the
commission of the act by stopping the proceedings; ·
b) in certiorari, the acts being assailed in the petition · have
already been done; in prohibition the acts being assailed by the
petitioner are about to be done or are being done; and
c) in certiorari, the respondent is performing judicial or quasi-
judicial functions; in prohibition, the respondent is performing judicial,
quasi-judicial, or ministerial functions. (Rule 65, Secs. 1 and 2.)
19. For purposes of the petition for certiorari or prohibition
under Rule 65, what does "grave abuse of discretion" mean?
It implies such capricious and whimsical exercise of judgment as
is equivalent to lack of jurisdiction, or, in other words where the power
is exercised in an arbitrary or despotic manner by reason of passion
or personal hostility, and it must be so· patent and· gross as to amount
to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law. (Cuision v. CA, (3.R. No.
128540, April 15, 1998.)
. 2~. What is mandamus? r .
Mandamus is a special civil action against a tribunal, corporation,
board, officer, or person which is alleged in a verified petition filed by
an aggrieved party to have unlawfully 'neqlected the performance of
an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excluded 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, praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the
332
I :....
RULE - CERTIORARI, PROHIBITION, AND MANDAMUS
act required to be d.one 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. (Rule 65, Sec. 3.)
21 There are two aspectsof mandamus. What are they?
They are:
a) The respondent unlawfully neglects the p~rformance of an
act which the law specifically enjoins as a duty resulting from' an office,
trust, or station; or <
. b) The respondent unlawfully, excludes another from the use
and enjoyment of a right or office to which such other is entitled. (Rule
65, Sec. 3.)
The concept of continuing mandamus was first mentioned in
Metropolitan Manila Development Authority v. Concerned Residents of
Manila Bay, G.R. Nos. 171947-48, Dec. 18, 2008. The Supreme Court,
En Banc, said that under "continuing· mandamus, the court may, under
extraordinary circumstances, issue directives with the end in view of
ensuring that its decision would not be set to naught by administrative
inaction or indifference."
Continuing mandamus is now provided for in Section 1, Rule 8 of
the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC,
April 13, 2010). It reads:
"Section 1. Petition for continuing mandamus. --: When
any agency or instrumentality of the government or officer
.' thereof unlawfully neglects the performance of an act which
· the law specifically enjoins as a duty resulting from an office,
trust or station in connection with the enforcement or yiolation
of an environmental law rule or regulation. or a right 'therein, or
unlawfully excludes another from th~ .use or' enjoyment ?f such__
right 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, attaching thereto supporting evidence, specify_ing that
the petition concerns an environmental law, rule or regulation; and,
... praying that judgment be rendered commanding_ the respo_ndent
.. . to do an act or series of acts until the judgment rs fully satisfied,
and to pay damages sustained by the petitioner by reason of the.
333

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
malicious neglect to perform the duties of the respondent, under
the law, rules or regulations. The petition shall also contain a
sworn certification of non-forum shopping."
22. How is mandamus distinguished from certiorari or pro-
hibition?
In mandamus, the respondent is performing ministerial functions.
In certiorari, the respondent is performing judicial or quasi-judicial
functions. In prohibition, the respondent is performing judicial, quasi-
judicial, or ministerial functions.
In mandamus, the respondent unlawfully neglects the perfor-
mance of an act which the law specifically enjoins as a duty resulting
from an office, trust, or station; or it unlawfully excludes another from
the use and enjoyment of a right or office to which such other is entitled.
In certiorari, the respondent has acted without jurisdiction or in excess
of its jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction. In prohibition, the respondent is acting or is about
to act without jurisdiction or in excess of its jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction.
The purpose of mandamus is to compel ttie respondent 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 purpose of certiorari is to correct respondent's
act by annulling the proceedings. The purpose of prohibition is to pre-
vent the commission of the act by stopping the proceedings.
123. Is mandamus proper to enforce a contractual obliga-
tion?
~mandamus is not proper to enforce a contractual obligation,
the ~r remedy being an action for specific performance. (Province
of Pangasinan v. Reparations Commission, G.R. No. L-27 448, Nov. 29,
1977 [BO SCRA 376).)
Example: The city government bought· from X a parcel of land
as relocation site for squatters. Because of the failure of the city
government to pay the purchase price, X filed an action for mandamus
to compel the city government to pay. May the action prosper? No,
because mandamus is not the proper remedy to enforce a contractual
obligation. X's remedy is an action for specific performance.
334
RULE 65 - CERTIORARI
, PROHIBITION,AND MANDAMUS
Also, mandamus is n~t available to control discretion. The writ may
issue to compel the ~xerc1se of discretion but not the discretion itself.
Mandamus can require action only but not specific action where the
act sought to be performed involves the exercise of discretion (Sharp
/ntern~ti~nal Marketing v. CA, et al., G.R. No. 93661, Sept. 4, 1991, citing
Assoc1att0n of Small Landowners in the Philippines v. Secretary of
Agrarian Reform, GR. No. 78742, July 14, 1989 (175 SCRA 343].)
In Edralin v. Philippine Veterans Bank, G.R. No. 168523, March
9, 2011, it was held that mandamus is the proper remedy to compel
the is~uance of a writ of possession. The purpose of mandamus is
to compel the performance of a ministerfal duty. A ministerial duty is
"one which an officer or tribunal performs in a given state of facts, in
a prescribed manner, in obedience to the mandate of legal authority,
without regard to or the exercise of his own judgment upon the propriety
or impropriety of the act done."
24. When is an act or duty ministerial and thus controllable
by mandamus? And when is it discretionary?
A ministerial act or duty is one which an officer or tribunal performs
in a given state of facts, in a prescribed manner, in obedience to the
mandate of a legal authority, without regard to the exercise of his own
judgment upon the propriety or impropriety of the act done.
If the law imposes a duty upon a public officer and gives him the
right to decide how or when the duty shall be performed, such duty is
discretionary. (Mera/co Securities Corp., etc. v. Save/lano, et al., G.R.
No. L-36181, Oct. 23, 1982.)
25. When may the petition (for certiorari, prohibition, or
mandamus) be filed?
The petition may be filed not late~ than 6~ days f~om notice of
the assailed judgment, order, or resolution. But 1f a motion for recon-
sideration is timely filed, whether such motion is re~uired o_r not, _the
60-day period shall be counted from notice of the denial of said pi~t1on.
(Rule 65, Sec. 4.)
26. May the time to file the petition be extended?
In Republic of the Philippines v. St. Vincent de Paul.~oll~ges, =
the Supreme court, citing its rulings
GR. . No. 192908, A ug. 2 2 , 2012 ,
335
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
in other cases and explaining the amendment to Section 4, Rule 65 by
A.M. No. 07-7-12-SC, HELD: Under Section 4, Rule 65 of the Rules
of Court and as applied in Laguna Metts Corporation v. CA, G.R. No.
185220, July 27, 2009, the general rule is that a petition for certiorari
must ~ filed within 60 days from notice of the judgment, order, or
resolution sought to be assailed. Under exceptional circumstances,
however, and subject to the sound discretion of the court, said period
may be extended pursuant to Domdom, Labao, and Mid-Islands Power
cases. (Referring to Domdom v. Sandiganbayan, G.R. Nos. 182382-
83, Feb. 24, 2010; Labao v. Flores, et al., G.R. No. 187948, Nov. 15,
2010; and Mid-Islands Power Generation Corp. v. CA, et al., G.R. No.
189191, Feb. 29, 2012.) . (a) a person who usurps, intrudes into, or unlawfully holds or exercises
As stated in Labao, the recognized exceptions to the strict obser-
vance of the rule are: (1) most persuasive and weighty reasons; (2) to
relieve a litigant from an injustice not commensurate with his failure to
comply with the prescribed procedure; (3) good faith of the defaulting
party by immediately paying within a reasonable time from tho time of
the default; (4) the existence of special or compelling circumstances:
(5) the merits of the case; (6) a cause not entirely attributable to the
fault or negligence of the party favored by the suspension of tho rules;
(7) a lack of any showing that the review sought Is merely frivolous and
dilatory; (8) the other party will not be unjustly prejudiced thereby; (9)
fraud, accident, mistake or excusable negligence without appellant's
fault; (10) peculiar legal and equitable circumstances attendant to each
case; (11) in the name of substantial justice and fair play; (12) impor-
tance of the issues involved; and (13) exercise of sound discretion by
the judge guided by all the attendant circumstances. It was, however.
pointed out by the Supreme Court that there should be an effort on the
part of the party invoking liberality to advance a reasonable or merito-
rious explanation for his/her failure to comply with the rules.
27. Does the filing of the petition Interrupt the course of the
principal case?
~ The filing of the petition does not interrupt the course of
the p ncipal case, unless a temporary restraining order or a writ of
preliminary injunction has been issued against the public respondent
from further proceeding in the case. (Rule 65, Sec. 7.)
336
RULE 66
auo WARRANTO
1. What Is quo warranto?
Quo warranto is a special civil action brought by means of a
verified petition in the name of the Republic of the Philippines against:
a public office. position, or franchise; or (b) a public officer who does an
act which constitutes a ground for the forfeiture of his office; or (c) an
association which acts as a corporation within the Philippines without
be ng legally incorporated or without lawful authority so to act. (Rule 66,
S c. 1.)
z May an Individual bring an action for quo warranto In his
own name?
e . Rule 66, Section 5 provides: "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." His petition
must contain an averment of his right to the office in question; without
such averment his petition may be dismissed,
3. In what court may an action for quo warranto be brought?
An action for quo weaento may be brought in the Supreme Court,
the Court of Appeals, or in the Regional Trial Court exercising jurisdic-
tion over the territorial area where the respondent or any of the respon-
dents resides, but 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. (Rule 66, Sec. 7.)
4. When must an action for quo warranto be filed?
An action for quo warranto must be filed within one year from the
accrual of the cause of action.
337
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Section 11, Rule 66 provides that an action for quo warranto must
be filed within one year af1er the cause of such ouster, or the right of the
petitioner to hold such office or position, arose.
The pendency of administrative remedies does not suspend the
running of the one-year period. (Palma-Fernandez v. De la Paz, et al.,
G.R. No. L-78946, April 15, 1988.)
5. In an action for quo warranto, Is the petitioner entitled
to damages?
I
es but he could not recover damages in the same action for quo
warranto.
If petitioner is adjudged entitled to the office, he has to file an
action against the respondent to recover damages he may have sus-
tained by reason of the usurpation. This action for damages must be
filed within one year after the entry otthe judgment establishinghis right
to the office in question. (Rule 66, Secs. 10 and 11.)
6. What are the distinctions between quo warranto and
election protest?
Their distinctions are:
I
a) The ground in quo warranto is the disqualification or ineli-
gibility of the proclaimed candidate; while the proper ground of an
election protest is irregularities in the conduct of an election; and
b) In guo warranto, if the respondent is found ineligible he
would simply be ousted, but the petitioner will not assume the office;
while in election protest, the protestant who prevails will assume the
contested office provided he had obtained the plurality of votes. (Palma,
et al. v. Mandocdoc, et al., G.R. No. L-17393, Nov. 28, 1962; Luison v.
Garcia, G.R. No. L-10981, April 25, 1958.)
7. What are the distinctions between quo warranto Involv-
ing an elective office and quo warranto involving an appointive
office?
In quo warranto involving an elective office, what is to be deter-
mined is the eligibility of the candidate-elect; in quo warranto involving
an appointive office, what is to be determined is the legality of the
appointment:
338
RULE 66 - ouo WARRANTO
.a) In qua warranto Involving an elective office. when the
candidat~-elect Is found to be ineligible, the court cannot declare that
the candidate who obtained
, the second h',g h est num ber o f vot es h as
been. e~ected even if he were eligible; in quo werrento involving an
appointive office, the court determines who has been legally appointed
and shall declare who is entitledto occupy the office. (Nuval v. Guray,
et ei., G.R. No. 30241, Dec. 29, 1928.)
8. What are the distinctions between quo warranto and
mandamus?
Quo warranto is the remedy to tests the title to one's office
claimed by another and has as its objectthe ousterof the holder from its
enjoyment; while mandamus is the remedyto enforceclear legal duties
and not to try disputed titles. (Garces v. CA, et al., G.R. No. 114795,
July 17, 1996.)
In other words, where there is usurpation or intrusion into an
office, quo warranto is the proper remedy; but where the respondent.
without claiming any right to an office. excludes the petitioner there-
from, the remedy is mandamus. (Lota, v. CA, et al., G.R. No. L-14893,
June 30, 1961.)
For example: If Y, in excludingX from his office, is also asserting
a right to the same office, then the remedy of X is quo warranto. In
his petition, X should allege that Y has usurped, intruded into, or is
unlawfully holding or exercisingthe contestedpublic office.
But if X, the holder of a publicoffice,has been unlawfully excluded
from the use and enjoyment of his office by Y. But Y, is not claiming
any .right to the same. office, the remedy of X is to file a petition for
mandamus.
9. "M" who was the Director of Customs Intelligence and
Investigation Service (CIIS) received a letter fro~ the Depu~
Customs Commissioner infonning him of the tennmation of has
services In view of the appointment of" A" as Director of the CIIS by
the President "M" wrote back demanding his reinstatement, but the
Deputy cust~ms commissioner did not make_any reply, "M" filed a
petition for quo warranto with the RTC which, m due time, ~e~~ered
a decision granting the petition. The court found that M w~s
Illegally dismissed from office without due process of law and m
339
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
violation of his security of tenure. It also declared the appointment
of respondent "A" to the same office void ab initio. The trial court
ordered the reinstatement of "M" to the contested position. "A"
appealed the trial court's decision to the Court of Appeals. While
the case was on appeal, "A" was promoted by the President to
the position of Deputy Commissioner of Customs for Assessment
and Operations. As a consequence of his promotion, "M" moved
for the dismissal of the appeal for being moot and academic. The
Court of Appeals granted the motion and dismissed the appeal, The
order of dismissal became final, and entry of judgment was made.
Meanwhile, the President appointed "0" as Director of the same
office. Thereafter, "M" filed with the RTC a motion for execution of
its decision. The trial court denied the motion on the ground that the
contested position was now being occupied by "0" who was not a
party to the quo wsrrento case. Did the trial court act correctly In
denying the motion for execution?
Yes. A judgment in quo warranto does not bind the respondent's
successor in office even though such successor may trace his UUe
to the same source. This follows from the nature of the writ of quo
warranto itself. It is never directed to an officer as such, but always
against the person - to determinewhether he is constitutionallyand
legally authorized to perform any act in, or exercise any function of,
the office to which he lays claim. In the case at bar, the petition for quo
warranto was filed by
"M" solely against respondent •A." What was threshed out before
the trial court was the qualification and right of "M" to the contested
position as against respondent "A," not against "O." (Mendoza v. Alias,
G.R. No. 131977, Feb. 4, 1999 [302 SCRA 623).)
- - . . . . ·--·-········\ --··--··· ....
340
RULE 67
EXPROPRIATION
1. What may be expropriated?
All properties, whether real or personal[except money], may be
expropriated. (Rule 67, Sec. 1.)
2. What court has Jurisdiction over an expropriation case?
The Regional Trial Court has jurisdiction over an expropriation
case because, regardless of the value of the property Involved, it is
Incapable of pecuniary estimation. '
3 How may the right of eminent domain be exercised?
The right of eminent domain may be exercised by the filing of
a verified complaint which shall state with certaintythe right and pur-
pose of expropriation, describe the real or personalproperty sought to
be expropriated, and join as defendantsall personsowning or claiming
to own. or occupying, any part thereof or interest therein. (Rule 67,
Sec. 1.)
4 May the plalntlff take possession of the property sought
to be expropriated during the pendency of the proceedings?
~ule 67, Section2 provides: "Upon. the filing of the complaint
or at any time thereafter and after due notice to the defen~ant, the
plaintiff shall have the right to take or enter upon the possessionof the
real property involved if he deposits with the authorizedgovernment
depositary an amount equivalentto the assessed value of the property
for purposes of taxation. xx x If personal propertyis involved, its value
shall be provisionally ascertainedand the amountto be depositedshall
be promptly fixed by the court:
Thus, the requisites in order that plaintiffmay immediatelyenter
the property sought to be expropriatedare:
341
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
a) the filing of the complaint for expropriation sufficient in form
and substance; and
b) the making of a deposit equivalent to the assessed value of
the property sought to be expropriated. (Biglang-awa v. Baca/la, et al.,
G.R. Nos. 139927 and 139936, Nov. 22, 2000.)
But, under Section 19 of R.A. No. 7160 (The Local Government
Code), the local government unit, in expropriation proceedings, may
immediately take possession of the property upon making a deposit with
the proper court of at least 15° o of the fair market value of the property
based on the current tax declaration of the property to be expropriated.
5. In an expropriation case, what pleading must the defen-
dant file?
The defendant may file either: (a) a manifestation, stating that he
has no objection or defense to the action or to the taking of his property;
or (b} an answer, stating all his objections and defenses to the taking
of his property.
No counterclaim, cross-claim, or third-party complaint shall be
alleged or allowed in the answer or in any subsequent pleading. (Rule
67, Sec. 3.)
6. What are the two stages in an expropriation case?
The following:
a) The First Stage is concerned with the determination of the
authority of plaintiff to take the property sought to be expropriated. The
court may either dismiss the case or issue an order of expropriation.
Whether it be a dismissal or one that orders expropriation. the ·ardeds
appealable. If the court issues an order of expropriation, then thecase
goes to the second stage; and
b) The Second Stage is concerned with the determination of
just compensation. Here, the court appoints not more than three com-
missioners to ascertain the just compensation of the property sought to
be expropriated. If the court accepts the.comrnissloners' report, it will
render judgment based thereon. This judgment fixing just compensa-
tion is also appealable. (Manila Electric Co. v. Hon. Gregorio, G.R. No.
L-59791, Feb. 13, 1992, citing Municipality of Biflan v. Hon. Jose Mar
Garcia, G.R. No. 69260, Dec. 22, 1989 (180 SCRA 576, 583-584].) ·
342
RULE 67 - EXPROPRIATION
7' In expropriation cases, may the trial court 1ts
on its own
1
determine the amount of Just compensation and order payment?
~ Se~tion 5, Rule 67 provides that upon the rendition of the order
of expr~priat1on, the court shall appoint not more than three competent
and dlsintereste.d persons as commissioners to ascertain and report
to the court the Just compensation for the property sought to be taken.
This is a mandatory requirement. (Manila Electric Co. v. Hon. Pineda,
et al., G.R. No. 59791, Feb. 13, 1992.)
In eminent domain or expropriation proceedings, the just com-
pensation to which the owner of the property is entitled is generally
the market value. Such amount is not limited to the assessed value
of the property or to the schedule of market values determined by the
provincial or city appraisal committee. The nature and character of the
land at the time of its taking is the principal criterion for determining
how jnuch just compensation should be given to the landowner. (NPC
v Manubay Agro-Industrial Development Corp., G.R. No. 150936, Aug.
18, 2004.) ' .
8. '
(a) If the court issues an order of expropriation, but the
defendant appeals therefrom, may the court still appoint commis-
sioners' to ascertain the just compensation notwithstanding the
appeal? (b) May the plaintiff enter upon the property and appropriate
the same for public purpose notwithstanding an appeal from the
judgment fixing the just compensation of the property?
Answer to the First Question: @.
The appeal by the party
aggrieved by the order of expropriation shall not prevent the court
from determining the just compensation to ~e paid: Hence, the ~urt
rnaystlll.appolnt commissioners to ascertain the Just compensation
notwithstanding the appeal. (Rule 67, Secs. 4 and 5.)
~~swer to the Second Question: ~ the right of the plaintiff to
enter upon the property of the defendant and appropriate the same
for public purpose or use shall not be delayed by an a_ppeal from the
judgment. (Rule 67, Sec. 11.) ·
,9. Suppose on appeal, the appellate court find~ that the
plalntlff has no right of expropriation, what judgment will at render?
The a
Trial Court rt ellate court shall render judgment ordering the Regional
forthwith enforce the restoration to the defendant of the
343
 OU· TION AND AN W IN
R MEDIAL W
th emag s Which the
y t a on of lhe possession
10. Local Gov, mmenl Uni may also exerclse eminent
of a legislative grant In their favor. What are the
to complied with by the local government unit In
ord r that It can xercl e eminent domain and thereby expropriate
privat property?
Th following are ttle requisites:
a) An Ol'dinance is enacted by the local leplslative council
authorizing the local chief executive, in behalf of the local government
uni to exercise the power of eminent domain or pursue expropriation
pnxx.~ing over a particular private property;
b) Th power of eminent domain is exercised for public use,
PUt~~. oc fare, or for the benefit of the poor and the landless;
c) There is payment of just compensation as required by the
constitution and other pertinent laws;
d) Av · and definite offer has been_J)reviously made to the
owner of the property sought to be expropriated, but said offer was
no: accepted. {R.A. 7160, Sec. 19; Heirs of Alberto Suguitan v. City of
Msndsluyong, G.R. No. 135087, March 14, 2000.)
In Heirs of Alberto Suguitan v. City of Manda/uyong, supra, it was
held that B mere resolution is not sufficient for the exercise of the power
of eminent domain since the law requires an ordinance.
11. What are the guidelines for expropriation proceedings
where reaJ property is to be acquired for the right-of-way, site, or
location for any national government infrastructure project?
The appropriate implementing agency shall initiate the exprop-
riation proceedings before the proper court under the following guide-
lines:
Upon the filing of the complaint and after due notice to the
defendant, the implementing agency shall immediately pay the owner
of the property: (1) the amount equivalent to the sum of 100% of the
value of the property based on the current relevant zonal valuation of
344
RlJ E !17 - E:itPROPRIATION
the Bureau of Internal Revenue · (
and/or structures; ' and 2) the value or the Improvements
a) In provinces cities mu . . l'U
: , nic1pa r es and other re s where
there is no zonal valuallon, the BIR is rnanda ed within the period of 60
days from the dale of the filing of the expropn'ation ..,_ . . ·h
· f . · Cc:se o come up w1
a zonal ve I uation or sard area; and
b) In case the completion or a government infra-tructure proj-
ect Is of utmost urgency and importance, and there is no a-..<i-ij11g v rua--
tlon of the area concerned, the implementing agency shall imroodi ely
pay the owner of the property its proffered value.
Upon. compliance with the guidelines above-mennonso. th~ court
shall immediately issue to the implementing agency an order to mks
possession of the property and start the implementation or the project.
Before the court can issue a writ of possession, the imp!emeoting
agency shall present to the court a certificate of availability ot fofidS
from the proper official concerned.
In the event that the owner of the property contests he irnple-
menting agency's proffered value, the court shall determine the just
compensation to be paid the owner within 60 days from the date ot
filing of the expropriation case. When the decision of the court becomes
final and executory, the implementing agency shall pay the owner the
difference between the amount already paid and the just compensa ion
as determined by the court (R.A. 8974,.Sec. 44.)
Under Section 2 of RA 8974, the term "'nationaJ govemme~t
projects" shall refer to all national govem_ment i~tructure, engi-
neering works, and service contracts, including proJec:5 undertaken by
government-owned and controlled corpora~on~. all projects cove~ed. by
RA. 6957, as amended by RA 7718, otherwise known as the -~~Id-
Operate-and-Transfer Law.··and other related and necessa:1 activities,
such as site acquisition supply and/or installation of equt~meot a~d
. ' tru ti completion operation, rnam-
materials, implementation, cons c on, . . . ' rdless of the
tenance, improvement, repair and rehabilitation, rega
source of funding.
345
 ··~

RULE 68 - FORECLosu
RE OF REAL ESTATE MORTGAGE

c) all persons having · . .

. . . or c 1 aiming an interest in the property
subordinate m right to that of the holder of the mortgage (such as
the second _mortgagee, subsequent attaching creditor, or subsequent
I
RULE 68 purchaser, if. any). They are, however, merely necessary parties. l
Thus, the action for foreclosure may still proceed even if they are not
FORECLOSURE OF REAL ESTATE implead~d. The ~nly effect if they are not joined is that their equity of

MORTGAGE
redemption remains .unforeclosed. (Rule 68, Sec. 1.)

1. If the debt is secured by mortgage, and the debtor
defaults in the payment of his debt, what are the remediesof the
mortgagee?
The mortgagee has tlie choice of one of two remedies. He may
either-
a) foreclose the mortgage (either judicially or extrajudicially), or
b) file an ordinary action to collect the debt. (Caltex Philippines,
Inc. v. /AC, et al., G.R. No. 74730, Aug. 25, 1989; Movido v. RFC,·
L-11990, May 29, 1959.)
2. What are the remediesof the mortgageeif the debtor-
motgagordies and the debt is still unpaid? . · redeem the land from P despite the confirmation of the sale? Yes, he
The following: · 11 • unforeclosed. Z, as a subsequent purchaser and therefore a necessary
a) he may waive the mortgage and claim the entire debt froin
the estate of the debtor-mortgagor as an ordinary claim;
In Limpin Jr., et al. v. /AC, et al., G.R. N~. 70987, Jan. 30, 1987,
I
the Supreme Court, citing Moran, 2 Rules of Court, 239 (3rd Ed.), l
exp,1.ained that the effect of the failure to implead a subordinate lien-
holder or subsequent purchaser or both is to render the foreclosure
ineffective as against them, with the result that there remains in their
I
favor the "unforeclosed equity of redemption." But the foreclosure is
valid as between the parties to the suit.
I.
I
l
lI
Example: X mortgaged his land to Y. The mortgage is registered
in . the office of the 'Registry of Deeds. Later, X sold his land to Z.
Because 'of X's failure to pay his debt, Y filed an action against X for
the foreclosure of the mortgage. The court ordered the foreclosure of
the mortgage, and the land was later sold at a public auction to P as
the highest bidder. In.due time, the court confirmed the sale. May Z still
may redeem it at any time because Z's equity of redemption remains
party, should have been impleaded in the action for foreclosure s.o that
his equity of redemption would likewise be foreclosed. .

b) ·· he may foreclosethe mortgage judicially and prove any Rule 68 governs judicial foreclosure of real estate mortgage: It
deficiency as an ordinary claim; may also be applied to judicial foreclosure of chattel mortgage.

9) he may rely on the mortgage exclusively, foreclosing the 4. How are the proceedingsin an action for foreclosure
same at any time before it is barred by prescription without right to file
conducted?
a claim for any deficiency. (Mag/ague v. Planters Development Bank,
G.R. No. 109472, May 18, 1999.) .. . The proceedi~gs are conducted i~ the same wa.y as in ordina~.
civil action. The mortgagee, as plaintiff, files a complaint. Sum~ons rs
3. In an action for foreclosure, who should be joined as issued. Defendant files an answer, Pre-trial is conducted, then trial. .
defendants?
If ft t . I the court finds the facts set forth in the complaint to
a er na , I · t'ff · luding interest
The following should be joined as defendants: be true it shall ascertain the amount due th~ P am 1 ' me . · '
a) the debtor; other charges and costs, and shall render Judgment (call~dbJudg~detnt
' 50. found due and order that 1t e pat o
on foreclosure) for the sum 'th' period of not less than 90
b) the mortgagor {if the mortgagor is not the debtor himself); and the court or to thejudgmE?nt.qbhgee wi . ma

346 347

1

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
days nor more than 120 days from the entry of judgment. In default of
such payment, the property shall be sold at public auction to satisfy the
judgment. (Rufe 68, Sec. 2.) ·
5. May the defendant already appeal from the Judgment
requiring him to pay the sum so found due?
Yes. Under Section 2, Rule 68, the judgment requiring the
defendant to pay the sum so found due, which is called a judgment on
foreclosure, is appealable because it is a final judgment.
It should be pointed out that foreclosure of mortgage is one
action in which multiple appeals are allowed. Multiple appeals are also
allowed in special proceedings, in special civil actions for partition with
accounting, and in expropriation or eminent domain (Rovira v. H~irs of
Defeste, G.R. No. 160825, March 26, 2010) · from the court that ordered the foreclosure. (Rule 68, Sec. 3.)
6. What is the nature of the-period of not less than 90 days
nor more than 120 days from entry of judgment during which the
judgment obligor (or defendant) may pay the sum so found d~e?. . .
This is the period during which the judgment obliger may exercise'
his equ~ of redemption. But, the judgment obligor may 'still exercise
his equity of redemption even after the foreclosure sale provided the
foreclosure sale has not yet been confirmed by the court. (Cruz, et al. v.
/AC, et al., G.R. No. 72806, Jan. 9, 1989.). ·
This period of not less than 90 days nor more 'than 120 days
from entry of judgment is not a mere procedural requirement; it is a
substantive right granted to the mortgage debtor as his last opportunity
to pay his debt and to save his mortgaged property from final disposi-
tion at the foreclosure sale. (Rosales v. CA, et al., G.R. No. 137566,
Feb. 28, 2001.) ·•
Thus, if the mortgaged property is sold .upon order of the court
without granting the mortgage debtor the said period to exercise his
equity of redemption, the order for the sale of the property is void as it
amounts to a denial of a substantive right. (De Leon v. Ibanez, et el.,
G.R. No. L-6967, May 28, 1954 [95 Phil. 119].)
If the judgment obligor {or· de°fendant) exercises his
equity of redemption by paying the sum so found due within the
period of not less than 90 days nor more than 120 days from entry
of judgment, what happens to the action for foreclosure?
348
L
RULE 68 - FORECLosu
RE OF REAL ESTATE MORTGAGE
The action for foreclosure Is ended.
But If he does not pay within the aforesaid riod the roceedin s
shall continue as follows: pe ' P 9
a) the judgment obligee (or plaintiff) files a motion for the sale
of the mortgaged property at public auction;
· b) upon such motion, the court orders the property to be sold in
the manner and under the provisions of Rule 39;
c) after the property has been sold, the court, also on motion,
~ssues an order confirming the sale. This order is also appealable; or
. c:!) upon the finality of the order confirming the sale, the pur-
chaser at public auction may, upon motion, secure a writ of possession
a: Is the motion for confirmation of the sale a litigable
motion?
, ~ ~ Notice and hearing of the motion for confirmation of sale are
esse~to the validity of the order of confirmation. The purpose of the
notice and hearing is to· enable the mortgagor to resist the motion. An
order of confirmation issued without notice and hearing is void and may
be set aside any time. (Rural Bank of Oroquieta [Miss. Occ.], Inc. v. CA,
et al., G.R. No. 53466, Nov. 10, 1980; also Rosales v. CA, et al., G.R.
No. 137566, Feb. 28, 2001.)
9. The amount realized from the foreclosure sale of the
mortgaged property shall be paid to the judgment obligee (or
plaintiff). But suppose the proceeds of the sale are not enough to
pay the amount so found due, what is the remedy of the plaintiff?
The remedy of the.plaintiff is to file a motion and ask the court to
render deficiency judgment against the defendant. (Rule 68, Sec .. 6.)
1 O. Distinguish judgment on foreclosure from deficiency
Judgment.
A judgment on f~re~l~~ur~ is qu?si in rem ?ecau~e it is dire_cte_d
against the m'ortgaged property; while a deficiency Judgm_ent is m
personam because it is directed against the defendan_t {or JUd~ment
obligor). Hence, if the judgment obligor does not reside and rs not
349
 RULE 68 - FORECLOSURE OF REAL ESTATE MORTGAGE
QUESTIONS AND ANSWERS IN
REMEDIAL LAW

A writ of possession may be issued in four instances:

found in the Philippines, the court cannot render a deficiency judgment
against him. a) in land registration proceedings under Section 17 of Act No.
496;
11. Distinguish Equity of Redemption from Right of
b) . in judicial foreclosure of mortgage, provided the debtor is in
Redemption.
possession of the mortgaged realty and no third person, not a party to
In relation to mortgage, the right of redemption exists in extra- the foreclosure suit, had intervened;
judicial foreclosure; while equity of redemption exists only in judicial
foreclosure:··· - -· -- - - - · c) in extrajudicial foreclosure of a real estate mortgage under
Section 7 of Act No. 3135, as amended; and
In extrajudicial foreclosure, the mortgagor (or his successor-in-
d) in execution sales.
interest} may exercise his right of redemption within one year from the
registration of the sale in the Office of the Registry of Deeds; while in The law does not require that a petition for a writ of possession
judicial foreclosure, the mortgagor (or his successor-in-interest) may may be granted only after documentary and testimonial evidence shall
exercise his equity of redemption during the period of not less than 90 have been offered to and admitted by the court As long as a verified
days nor more than 120 days from entry of judgment of foreclosure or petition states the facts sufficient to entitle the petitioner to the relief
even after the foreclosure sale bu before the judicial confirmation of requested, the court shall issue the writ of possession prayed for. The
the sale. ·· petitioner need not offer any documentary or testimonial evidence for
There is.no right of redemption in judicial foreclosure of mortgage, the court to grant the petition. (Mirasol, et al. v. /AC, et al., G.R. No.
except only if the mortgagee is the Philippine National Bank_ c;,'r any L-67$8~r·June 20 1988; Santiago v. Merchants Rural Bank of Talavera,
banking institution. Thus, in judicial foreclosure of mortgage where the Inc., G.R. No. 147820, March 18, 2005.)
mortgagee is the Philippine National Bank or any banking institution,
there exist both equity of redemption and right of redemption. (Huerta
Alba Resort, Inc. v. CA, et al., G.R. No. 128567, Sept. 1, 2000, citing
Umpin v. /AC, G.R. No. L-70987, Sept. 29, 1988 [166 SCRA 87].)
It should be noted, however, that under Section 47 of the General
Banking Law of 2000, where the mortgagor is a juridical person and
the mortgagee is a bank or a banking institution, and the mortgaged
property is sold in an extrajudicial foreclosure, the mortgagor may
redeem the propertyuntil, but not after, the registration of the certificate
of foreclosure sale with the applicable Register of Deeds which in no
case shall be more than three months after foreclosure, whichever is
earlier.

:12. In judicial foreclosure, what may the purchaser do to

obtain possession of the foreclosed property?
He may apply for the issuance of a'1writ of possession.
A writ of possession commands the sheriff to enter the land or real
property and give possession thereof to the person entitled thereto.

350 351

RULE 69
PARTITION
1. What is the purpose of partition?
The purpose of partition is to separate, divide, and assign a thing
held in common among those to whom it may belong. (Gabi/a v. Perez,
et al., G.R. No. L-29542, Jan. 27, 1989.)
2. Who may file a complaint for partition?
A person having the right to compel the partition of real estate may
file a complaint for partition, setting forth therein the nature and extent of
his title and an adequate description of the real estate of which partition
is demanded and joining as defendants all other persons interested in
the property. (Rule 69, Sec. 1.)
Thus, the person filing the complaint for partition must join all
other CO-Owners as defendants because all of them are indispensable
parties.
3. Does an action for partition prescribe?
. . @) An action for partition, as long as the co-ownership still exists,
will lie at any time and does not prescribe. (Bicarme v. CA, et al., G.R.
No. L-51914, June 6, 1990.)
4. When may the court issue an order of partition?
. After trial, if the court finds that the plaintiff is entitled to partition,
!t shall order the partition of the real estate among all the parties in
interest.
5. Is the order of partition appealable?
Yes. R~le 69, Section 2, states: "The final order decreeing partition
and accounting may be appealed by any party aggrieved thereby."
352
RULE 69 - PARTITION
6. Is the order of partition the same as the judgment of
partition?
No.
The order of partition is issued ff, after trial, the court finds that the
plaintiff is entitled to partition, in which case the court shall order the
~artition of the real estate among all the parties in interest.
After the issuance of the order of partition, the parties, if they are
able to agree, may make the partition among themselves, and the court
shall confirm the partition so agreed upon.
But if the parties are unable to agree upon the partition, the court
shall appoint not more than three commissioners to make the partition.
The commissioners may then submit their report to the court, and if
the court.accepts the commissioners' report, it will render judgment
thereon. This is the judgment of partition. (Rule 69, Secs. 2, 3, and 6.)
!
The judgment of partition is lik~wise appealable.
7. i X filed an action for partition against Y and Z. In his com-
plaint, X likewise asked for accounting of the fruits of the property.
After trial, the court issued an order decreeing the partition of
the property. Is this order already appealable, although there are
furth~roceedings still to be undertaken?
f:!i}. There are two stages in action for partition and accounting
under Rule 69. The first stage is concerned with the determination of
whether or not a co-ownership in fact exists. If the court finds that co-
ownership exists, then partition is proper. If, on the other hand, the court
finds that there is no co-ownership, then partition cannot legally be made
and the case should be dismissed. But whether the action is dismissed
or partition is ordered, the order is final and may be appealed by any
party who claims to have been aggrieved thereby. Rule 69, Section 2
provides that: A "final order decreeing partition and accounting may be
appealed by any party aggrieved thereby." ,
If partition is decreed and the parties are unable to agree upon the
partition, the second stage commences. In such a situation, partition
shall be effected for the parties by the court with the assistance of not
more than three disinterested commissioners. (De Mesa v. CA, G.R.
No. 109387, April 25, 1994.)
353

RULE 70
FORCIBLE ENTRY AND UNLAWFUL
DETAINER land the 1991 REVISED RULE
ON SUMMARY PROCE.DURE)
1. What cases are governed by the Revised Rule on Sum-
mary Procedure?
The following:
a) Civil Cases:
(1) All cases of forcibleentry and unlawfuldetainer;
(2) All other cases, except' probate proceedings, where
• the total amountof plaintiff's claim does not exceed one hundred
thousand pesos (P100,000) or, two hundred thousand pesos
(P200,000)in MetropolitanManila,exclusiveof interestand costs.
(As amended by A.M. No. 02-11-09-SC, dated Nov. 12, 2002; this
amendment took effect on Nov. 25, 2002.)
But the Revised Rule on Summary Procedure does not apply
to a civil case where the plaintiff's cause of action is pleaded in the
same complaintwith another cause of action subject to theI ordinary
procedure. ~ .
b) CriminalCases:
(1) Yiolatlonsof traffic laws, rules and regulations;
(2) Violationsof the rental law; ··
(3) Violationsof municipal-or city ordinances;
l•
(4) All other criminal cases where the penalty prescribed
by law for the offense chargedis imprisonmentnot exceedingsix
months, or a fine not exceeding P1 ,000, or both, irrespective of
other imposablepenalties, accessoryor otherwise, or of the civil
!iability arising therefrom; Provided, however, That in offenses
involving damages to property through criminal negligence, the
Rule on Summary Procedure shall govern where the imposable
fine does not exceed P10,000; · .
354
RULE 70 - FORCIBLE ENTRY AND UNLAWFUL DETAINER
(and the 1991 REVISED RULE ON SUMMARY PROCEDURE)
(5) Violations of B.P. Big. 22 as provided for in A.M. No.
00-11-01-SC,March 25, 2003.
The Revised Rule on Summary Procedure does not apply to a
criminal case necessarily related to another criminal case subject to
the ordinary procedure.
2. P filed a civil action against D before the MTC of Baguio
City. What does the Revised Ruleon Summary Procedure require
the court to do?
The court shall issue an order declaring whether or not the
case shall be g'overned by the Revised Rule on Summary Procedure.
(Revised Rule on Summary Procedure, Sec. 2 [hereinafter RRSPJ.)
3 Suppose the court has determined that the case falls
under ihe Revised Rule on SummcJryProcedure, can it dismiss the
case outright on any ground apparent therefrom for the dismissal
of a civil action?
, Yes. Section 4 of the Revised Rule on Summary Procedure
provides that: "After the court determines that the case falls under
summary procedure, it may dismiss x x x the case outright on any of
the grounds apparenttherefromfor the dismissal of a civil action."
For example, if it clearly appears from the complaint that venue
is improperly laid, the court can dismiss the case outright. This does
not apply, however, if the case is governed by the rules on ordinary
procedure becausevenue may even be waived by the defendant.
4. Suppose no ground for dismissal is found, what shall
the court do?
The court shall forthwith issue summons which shall state that
the rule on summary procedure shall apply, directing the defendant to
file his answer within 10 days from service· of the summons. (RRSP,
Sec. 4.)
5. · Under the Revlse_d Rule on Summary Procedure; what
pleadings are allowed?
The only pleadingsallowed to be filed are:
a) complaints;
b) compulsorycounterclaimspleaded in the answer;
355
 --·· - . ·~-. .-.-·----------· -·-~-- . _ .~ .... - ....

QUESTIONS AND ANSWERS IN RULE ro - FORCIBLE ENTRY AND UNLAWFUL DETAINER

REMEDIAL LAW (and the 1991 REVISED RULE ON SUMMARY PROCEDURE)

c) cross-claims pleaded in the answer; and to dismiss alleging that the case should be dismissed outright for
d) answers thereto (answer to the complair.t; answer to the failure of th~ complaint to state a cause of action. P opposed the
compulsory counterclaim; answer to the cross-claim). motion to dismiss, contending that a motion to dismiss on that
ground is a prohibited motion under the Revised Rule on Summary
All these pleadings shall be verified. (RRSP,Sec. 3.) Procedure. First Question: Is the motion to dismiss a prohibited
motion? Second Question: Maythe court dismiss the case?
6. What pleadings or motions are prohibited?
Answer to the First Question: True, indeed that' under Section.
The following pleadings, motions, or petitions are prohibited under 19(1) of the Revised Rule on Summary Procedure (and under Rule 70,
the Revised Rule on Summary Procedure: Sec. 13) a motion to dismiss is a prohibited motion, except if the ground
a) Motion to dismiss the complaint or to quash the complaint or relied upon is lack of jurisdiction over the subject matter or failure to
information, except on the ground of lack of jurisdiction over the subject comply with the requirement of referral to the Lupo~ if the
matter, or failure to comply with the requirement of prior referral of tlie motion to dismiss on ground of, say, failure of the complaint to state a
dispute to the Lupon for conciliation; cause of action is filed after the answer has already been submitted,
said motion is no longer a prohibited motion. In Heirs of Ricardo Olivas
b) Motion for a bill of particulars; v. Flor, G.R. No. L-78343, May 21, 1988 (161 SCRA393), the Supreme
c) Motion for new trial, or for reconsideration of a judgment, or Court said that: "It should be noted that the Motion (to Dismiss) was filed
for reopening of trial; after an Answer had already been submitted within the reglementary
period. In essence therefore, it is not x x x prohibited by the Rules on
d) Petition for relief from judgment; .
Summary Procedure. What the rule proscribes is a Motion to Dismiss
e) Motion for extension of time to file pleadings, affidavits, or which would stop the running of the period to file an Answer and cause
any other paper; un_due delay."
f) Memoranda; ' Answer. to the Second Question: No, the court cannot dismiss
the case outright. In the aforecited case of Heirs of Ricardo Oliva,
. g) Petition for certiorari, mandamus, or prohibition agafnst any
interlocutory order issued by the court; . · · · the Supreme Court said that: "It is .true that the Rules on Summary
Procedure allows the dismissal of a case outright due to failure to state
h) Motion to declare defendant in default· a cause of action. However, such dismissal is permissible upon the filing
'
i) Dilatory motions for postponement; of the complaint from a consideration by the Court of the allegations
thereof. In this case the proceedings had gone far afield." From the
j) Reply; ' i • J foregoing pronouncement of the High Tribunal, it is clear that the defect
k) Third party complaint; and of lack of cause of action may be cured by presenting additional data or
allegation during the preliminary conference. Therefore, the case can
I) Intervention. (RRSP, Sec. 19.) no longer be dismissed outright if the defendant has already file~ his
answer.
· 7. P filed an action for forcible entry against D in the
MT~ of Baguio City. The court issued summons stating that the It is also helpful to. recall the teaching of the Supreme Court in
Revised Rules on Summary Procedure shall apply and directing Bayview Hotel, Inc.. v. CA, etel., G.R. No. 119337, June 17, .1997,
the defendant to file his answer within 10 days from service of 273 SCRA 540. This case started as a case for unlawful detainer- in
su"?mons. The defendant filed his answer within the said 10-day the MTC of Cebu. Petitioner, as defendant in the court below, .filed its
period. Four months after the filing of his answer, D filed a motion answer, interposing several affirmative defenses. It then filed a motion

356 357·
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
for preliminary hearing on its affirmative defenses, but the trial Judge
denied it on the ground that the Revised Rule on Summary Procedure
prohibits such motion. The Supreme Court held: "Under the law, parties
are not prohibited from filing an answer with affirmative defenses In
cases falling under summary procedure. However, the trial courts
are enjoined from conducting preliminary hearing on such affirmative
defenses to prevent unnecessary delay in disposing the case on Its
merits."
• In a forcible entry case, the defendant files an answer
In which he asserts, by way of an affinnative defense, that the
complaintstates no cause of action. He then prays for the dlsmis-
sal of the complaint. The municipal trial court, however, rules
that defendant'sanswer may be treated as a prohibited pleading
because It prays for the dismissal of the complaint based on a
defenseother than on a jurisdictional ground. Is the municipal trial
court correct?
No, the municipal trial court is not correct. An answer, although
filed in a case governed by the rule on summary procedure, may contain
affinnative, as well as negative, defenses. An affirmative defense,
according to Section 5, Rule 6 of the Rules of Court, is Man allegation
of new matter which, while hypothetically admitting the material
allegations in the pleading of theclaimant, would nevertheless prevent
or bar recovery by him. The affirmative defenses include fraud, statute
of limitations, release, payment, illegality, statute of frauds, estoppei,·
fonner recovery, discharge in bankruptcy, and any other matters by way
of confession and avoidance." Likewise, Section 6, Rule 16 of the Rules
of Court states that any of the grounds for dismissal provided for in
Section 1 of the same Rule may be pleaded as an affirmative defense
in the answer.
Quite naturally, a defendant may demand in his answer the
dismissal of the complaint. This becomes particularly so when the
answer sets up any of the grounds for dismissal provided for in Section
1, Rule 16, as an affirmative defense. When such a relief is demanded,
the answer is not thereby converted into a motion to dismiss.
But a rriotion for a preliminary hearing on the affirmative defenses
is a prohibited motion under the rule on summary procedure because
such a motion will only delay the proceedings. Bayview Hotel, Inc. v.
CA, et al., G.R. No. 119337, June 17, 1997, 273 SCRA540, started as a
358
RULE 70 - FORCIBLE ENTRY ANO UNLAWFUL DETAINER
(ond tho 1991 REVISED RULE ON SUMMARY PROCEDURE)
case for unlawful detainer In the MTC of Cebu. Petitioner, as defendant
In the court below, flied its answer, interposing several affirmative
defenses. It then filed a motion for preliminary hearing on its affirmative
defenses, but the trial judge denied it on the ground that the Revised
Rule on Summary Procedure prohibits such motion. The Supreme Court
held: "Under the law, parties are not prohibited from filing an answer
with affirmative defenses in cases falling under summary procedure.
However, the trial courts are enjoined from conducting preliminary
hearing on such affirmative defenses to prevent unnecessary delay in
disposing the case on its merits."
9. Suppose in a case covered by the Revised· Rules on
Summary Procedure, the MTC rendered judgment against the
defendant. The defendantappealedto the RTC.The RTC affirmed
the judgment of the MTC.Then within 15 days from notice of the
judgment, the defendant filed a motion for reconsidera~ion of
the judgment. of the RTC. The plaintiff opposed the motion for
reconsideration, arguing that it is a prohibited motion under the
Revised Rule on SummaryProcedure.Is the plaintiff correct?
No, the plaintiff is not correct. In Jakihaca v. Aquino, G.R. No.
83982, Jan. 12, 1990 (181 SCRA 67), it was held that the Rule on
Summary Procedure applies only if the case is still before the MTC.
Therefore, if the judgment of the MTC in a case covered by the Revised
Rule on Summary Procedure is appealed to the RTC, a motion may be
filed with the RTC for the reconsideration of its decision rendered by it
in the exercise of its appellate jurisdiction.
~O. P v. D for unlawful detainer. Notices of preliminary con·
ference were sent to the parties. P, despite such notice, failed to
appear at the preliminary conference. On motion of D, the MTC
dismissed the case. P, who was notified of the dismissal of his
case filed a motion for reconsideration in due time. Is P's motion
for reconslderatlon a prohibited motion? ·
No. The motion prohibited by Section 19(c) of the Revised Rule
on Summary Procedure is that which seeks reconsideration of the
judgment rendered by the MTC on the merits of the case. The order of
dismissal due to the failure of a party to appear during the preliminary
conference is not a Judgment on the merits of the case. Hence, a motion
for the reconsideration of such order is not a prohibited motion. (Lucas
v. Fabros, A.M. No. MTJ-99-1226, Jan. 31, 2000 [324 SCRA 1).)
359
 QUESTIONSANDANSWERS IN
REMEDIAL LAW
1. Under the Revised Rule on Summary Procedure, is a
motion for postponement prohibited?
Yes, if it is a dilatory; no, if it is not dilatory. (RRSP, Sec. 19.)
2. In cases governed by the Revised Rule on Summary
Procedure, when may the MTC render judgment as may be war-
ranted by the facts alleged in the complaint and limited to what is
prayed for therein?
In _t~e.following instances:
a), .. -lf the defendant fails to file his answer within 10 days from
service of summons upon him; or
b) · If the defendant, although he has filed his answer, fails to
appear atthe preliminary conference despite due notice.
.' ' And, as held in Limpo v. CA, G.R. No. 124582, June 16, 2000 (333
In these instances, the court, motu proprio or on motion of the
plaintiff, shall render judgment as may be warranted by lhe facts alleged
in the complaint and limited to whal is prayed for therein. In Sarden
v. de Guzman, AM. No. MTJ-00-1296, Ocl. 5, 2000, it was explained
that even without a motion filed by the plaintiff, the court has to render
judgment as may be warranted by the facts alleged in the complaint and
limited to what is prayed for therein.
13. If the defendant did not file his answer or even If he filed
his answer but failed to appear at the preliminary conference In
a case covered by the Rule on Summary Procedure, may he be
declared In default?
No. The reason Is that there is no default in cases covered by
the Revised Rule on Summary Procedure. What the court should do
is to render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein. But, where the
defendant has filed his answer and he appears at the first preliminary
conference but fails to do so at the second preliminary conference, then
!he court shall issue a preliminary conference order defining the issues
m the .case, and directing the parties to submit their Position Paper,
affidavits, and other evidence. (Lesaca v. CA, G.R. No. 96432, Oct. 21,
1992 {215 SCRA 17]; Revised Rules on Summary Procedure, Secs. 6,
7, and 8.)
360
RULE 70 - FORCIBLE ENTRY AND UNLAWFUL DETAINER
(and the 1991 REVISED RULE ON SUMMARY PROCEDURE)
14. In civil cases governed by the Revised Rule on Summary
Procedure, if the judgment of the MTC is affirmed on appeal by the
RTC, is the judgment of the RTC immediately executory?
Yes. Section 21 of the· Revised Rules on Summary Procedure
provides that the "decision of the Regional Trial Court in civil cases
governed by this Rule, including forcible entry and unlawful detainer,
shall be immediately executory, without prejudice to a further appeal
that may be taken therefrom." However, the immediate execution of
the judgment of the RTC may not be effected unless the losing party
has been served with notice of the judgment. The prevailing party who
moves for execution must show proof of such service. Thus, execution
of the judgment made at a time when the losing party has not yet
received a copy of the judgment may be nullified. (Dy v. CA, G.R. No.
93756, March 22, 1991 [195 SCRA 585).)
'
SCRA 575), the fact that the decision of the MTC In ejectrnent' cases
is immediately executory does not mean that notice of the motion for
executlon to lhe adverse party is unnecessary.
15. In a civil case governed by the Revised Rule on Summary
Procedure, is hearing still necessary?
No, hearing is not necessary. The MTC shall decide the case on
the basis of the position papers, affidavits, and other evidence submitted
by the parties.
Briefly, the proceedings shall be as follows:
a) plaintiff files a verified complaint with the MTC;
b)
•
upon filing of the verified complaint, MTC lssues an order
dedaring whether the case shall be governed by the Revised Rules on
Summary Procedure;
c) if MTC determines that the case is governed by the Revised
Rules on Summary Procedure, it may dismiss the complaint outright on
any ground that is apparent therefrom; ,,
d) if no ground for dismissal is found, MTC issues summons
stating that the Revised Rules on Summary Procedure shall apply and
directing the defendant to file his answer within ten days from service of
the summons;
361
I
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
e) if defendant does not file an Answer, MTC renders judgment
as may be warranted by the facts alleged in the complaint and limited
to what is prayed for therein; rf defendant files an answer, preliminary
conference shall be held not later than 30 days after the last answer is
filed;
f) within five days after the tennination of the preliminary con-
ference, MTC issues preliminary conference order stating the matters
taken up therein;
g) within 1 O days from receipt of the preliminary conference
order, the parties shall submit the affidavits of their witnesses and other
evidence on the factual issues defined in the order, together with their
position papers setting forth the law and the facts relied upon by them; or
h) within 30 days after receipt of the last affidavits and position
papers, or the expiration of the period for filing the same, the court shall
render judgment; if MTC finds it necessary to clarify certain material
facts, it issues during the 30-day period an order specifying the matters
to be clarified and require the parties to submit affidavits and other
evidence on said matters within 10 days from receipt of said order.
MTC shall render judgment within 15 days after the receipt of the last
darificatory affidavits or the expiration of the period for filing the same.
(RRSP, Secs. 2, 4, 5, 6, 7, 8, 9, and 10.)
Thus, the MTC Judge who conducts a hearing to clarify certain
material facts commits an error.
16. What are the two kinds of ejectmentsuit?
They are: (a) action for forcible entry; and (b) actioo_ for unlawful
detainer. Both are summary actions and are governed by the Revised
Rules on Summary Procedure.
. 17. What distinguishes an ejectment suit (or ace/on inter-
d1~t.a9 f~omposse~sory action (o~ ace/on pub/lclana) and from a
remvmd1catoryaction (or accion relnvlndlcatorla)?
Accion interdictal, accion pub/iciana, and ace/on relnvlnd/cator/a
are the three kinds of real actions to judicially recover possession of
real property.
~ accion interdicta/ is for the recovery of possession de facto
(physical, actual, or material possession). An ace/on publ/clana is a
362
RULE 70 - FORCIBLE ENTRY AND UNLAWFUL DETAINER
(and the 1991 REVISED RULE ON SUMMARY PROCEDURE)
plenary action to recover right or possession. An accion reinvindicatoria
is the action to recover ownership. including possession. (Francisco
Really and Development Corporation v. CA, et al., G.R. No. 125055,
Oct. 30, 1998.)
The distinctions between forcible entry and accion publiciana is
more clearly stated in Regis Jr. v. CA, et al., G.R. No. 153915, July 31,
2007, in this wise:
(1) An action for forcible entry should be filed within one
year from the unlawful dispossession of the real property; while
accion pub/iclana is filed a year after such unlawful dispossession;
(2) An action for forcibfe entry is concerned with the issue
of who has right to the physical possession of the real property;
while in accion publiciana the subject of litigation is the better right
to possession over the real property: and
(3) An action for forcible entry is filed in the MTC and is a
summary action; while accion publiciana is a plenary action in the
RTC where the assessed value of the property exceeds P20,000
or P50,000 in Metro Manila. (Note that where the assessed value
of the property does not exceed P20,000 or P50,000 in Metro
Manila, the accion could be filed in the MTC.)
' 18. Who may bring an action for forcible entry?
A person who is deprived of the possession of any land or building
by force, intimidation, threat, strategy, or stealth, may, at any time within
one year after such unlawful deprivation, bring an action for forcible
entry in the proper Municipal Trial Court against the person or persons
who unlawfully deprived him of possession or any person claiming
under them, for restitution of such possession. (Rule 70, Sec. 1.)
19. Under Section 1, Rule 70, of the Rules of Court, there
Is forcible entry when one In physical possession of a land or
building Is deprived of that possession by another through "force,
Intimidation, threat, strategy or stealth." What do these words
mean?
The words "by force, intimidation, threat, strategy or stealth" include
every situation or condition under which one person can wrongfully enter
upon real property and exclude another, who has had prior possession
363
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
thereof. To constitute the use of "force" as contemplated in the above-
mentioned provision, the trespasser does not have to institute a state of
war. Nor is it even necessary that he uses violence against the person of
the party in possession. The act of going on the property and excluding
the lawful possessor therefrom necessarily implies the exertion of force
over the property, and this is all that is necessary. (R. Joven v. Court
of Appeals, Hon. Manuel A. Patron, in his capacity as Presiding Judge
of the RTC, Branch 59, Lucena City, Roberto Paguia and Fernando
Lasala, G.R. No. 80739, Aug. 2, 1992.)
20. Who may bring an action for unlawful detainer?
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 a
contract express or implied, or the legal representatives or assigns of
such lessor, vendor, vendee, or other person, may, at any time within
one year after such wiJhholding of possession, bring an action for
unlawful detainer in the proper Municipal Trial Court against the person
or persons unlawfully withholding possession or any person claiming
under them, for restitution of such possession. (Rule 70, Sec. 1.)
~1. What is the main issue in ejectment case?
The only issue involved in ejectrnent case is as to who is entitled
to the physical or material or actual possession of the premises - that
is possession de facto and not possession de jure. (Ganadin v. Ramos,
et al., G.R. No. L-23547, Sept. 11, 1980.)
22. Ownership is not an issue in ejectment'case. But may
the defendant in his answer raise the defense of ownership?
@And when the defendant raises the defense of ownership in
his answer and the question of possession cannot be resolved without
deciding the issue of ownership, the court shall resolve the issue of
ownership only to determine the issue of possession. (Rule 70, Sec.
16.) .,
Thus, the mere assertion of ownership by the defendant in an
ejectment suit will not oust the municipal trial court of its jurisdiction.
(Sandel v. CA, et al., G.R. No. 117250, Sept._ 19, 1996, citing Ching v.
Malaya, et al., G.R. No. L-56449, Aug. 31, 1987 {153 SCRA 412].)
364
RULE 70 - FORCIBLE ENTRY AND UNLAWFUL DETAINER
(and the 1991 REVISED RULE ON SUMMARY PROCEDURE)
23. In his answer,the defendantraised the defense of own-
ership. In resolving the Issue of possession, the Municipal Trial
Court passed upon the Issue of ownership. May the parties still
litigate the Issue of ownership or title in another action, notwith-
standing the judgment of the MunicipalTrial Court?
~- The judgment rendered in an action for forcible entry or un-
lawfurc{etainer is conclusive with respect to actual or physical posses-
sion only and shall in no wise bind the title or affect the ownership of
the land or building. Such judgment shall not bar an action between the
same parties respecting the ownership or title to the land or building.
(Rule 70, Sec. 18.)
~4. What are the distinctions betweenan action for forcible
entry and an action for unlawful detainer?
, The summary actions for unlawful detainer and forcible entry may
be distinguished from each other, as follows:
a) In forcible entry, the possession of the land (or building) by
the defendant is unlawful from the beginning as he acquires possession
thereof by force, intimidation, strategy, threat, or stealth; while in unlaw-
fu detainer, the possession of the defendant is inceptively lawful but it
becomes illegal by reason of the termination of his right to the posses-
sion of the property under his contract with the plaintiff;
b) In forcible entry, the law does not require a previous demand
for the defendant to vacate the premises; but in unlawful detainer, the
plaintiff mu~t make such d.eman? t~ vacate, which is jurisdicti~nal
in nature, eeJ if the ground 1s exp1rat1on of the term of the lease,
c) In forcible entry, the plaintiff must prove that he was in prior
physical possession of the premises until he was deprived thereof ~y
the defendant; in unlawful detainer, the plaintiff need not have been m
prior physical possession;
I . d) In forcible entry, the one-year pe~iod is generally. cou~t~d
from the date of actual entry on the land; m unlawful detainer, tt rs
I
I
counted from the date of last demand. (Munoz, et al. v. CA, et a~., G.R.
No. 102693, Sept. 23, 1992, citing Florenz 0. Regalado, Remedial Law
Compendium, 503-504 {5th Rev. Ed.] and several other cases.) ·
I·
I 365

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
25. · .If the defendant enters plaintiff's premises and takes
possession thereof, when should plaintiff's action be for forcible
entry? - when should it be for unlawful detainer?
. \ - .
If at the start, defendant's entry is unlawful because his entry is
·effected by means of force, intimidation, strategy, threat, or steal!h.., then
plaintiff's action should be for forcible entry.
But if defendant's entry and possession of the premises of
the plaintiff is at the latter's tolerance, although there is no contract
between them, then plaintiff's action should be for unlawful detainer to
be filed within one year_ from the date of the demand. Here, defendant's
possession is lawful because of plaintiff's tolerance. Therefore, deien-
dant may be deemed to be unlawfully withholding possession. of the
premises only if plaintiff makes a demand upon him to vacate. •.
So it was held that a person who occupies the land of another at
the latter's tolerance or permission without any contract between them
is necessarily bound by an implied promise that he will vacate upon
demand. (Caniza, et al. v. CA, et al., G.R. No. 110427, F~b. 27, .1997.)
In the earlier case of Sarona, et al. v. Villegas, et al., G.R. No.
L-.f2984, March 27, 1968, the Supreme Court En Banc, explained that
"what determines the cause of action is the nature of defendant's entry
into th_e land, If entry is illegal, then the cause of action which may
be filed against the intruder within one year therefrom is forcible entry.
If, on the other hand, entry is legal but thereafter possession became
illegal, the case is one of illegal detainer which must be filed within one
year from the date of the last demand." Such tolerance, according to the
High Tribunal, must be present right from the start of possession sought
to be recovered, to categorize a cause of action as, one of unlawful
detainer. · must already be filed with the RTC as an accion publiciana to determine
11
In Unida, et al. v. Heirs of Ambrosio Urban, et al., G.R. No.
155432, June 9, 2005, the Suprem~ Court, citing Sarona, ruled that
to justify an action for unlawful detainer, the permission or tolerance
must have been present at the beginning of the possession. Otherwise,
if the possession was unlawful from the start, an action for unlawful
detainertwould be an improper remedy. And, still relying on Sarona,
the Supreme Court, in Valdez Jr., et al. v. CA, et al., G.R. No. 132424,
· May '4, 2006, held that one whose stay is merely tolerated becomes
. a deforciant illegally occupying the land the moment he is required to
leave. It is essential 'in unlawful detainer cases of this kind that plain-
366
RULE 70 - FORCIBLE
(and the 1991 REVISED ERNTRYAND UNLAWFUL DETAINER
LILE ON SUMMARY PROCEDURE)
tiff's supposed acts of toler
t rt of possession whi h . ance must have been present right from the
sa c is later sought to be recovered.
r r ~.
26.Previous
Wh t demand to va ca t e rs
· no t require
· d. m
· · f orci"bl e
entry cases. a about in unlawful detainer cases is previous
demand to vacate required? '
In unlawful detainer cases, previous demand to vacate is required
to. be made by the less~r upon the lessee if the ground for the action is
failure to pay rent or failure to comoly with the conditions of the lease.
..J
Such deman? shall be in writing and served upon the parsons
found on the pre~mses or posted on the premises ifno person is found
thereon. The action shall be brought by the lessor if the lessee fails to
comply with the demand after 15 days in the case of a land or five days
in the case of a building. (Rule 70, Sec. 2.)
If _several demands were made, the one-year period for bringing
the action for unlawful detainer is reckoned from the date the last
demand was made. 1
Jt">J'. w ~.
But such demand to vacate is not required where the action is to
terminate the lease because of the termination of its term. (Lanuza v.
Munoz, G.R. No. 147372, May 27, 2004.)
. , I
271.
On September 24, 1996, L filed an action for unlawful
detainer against D with the MTC. L's complaint alleges that the
demand letter required D to vacate the premises on September 15,
1995. Does the MTC have jurisdiction over this case? •
Since the complaint was filed after one year from the date of
demand, the action cannot anymore be instituted as unlawful detainer. It
the issue of better right of possession of a real property. (Salud Lopez,
et al. v. David Jr., et al., G.R. No. 152145, March 30, 2004.)
Note, however, that in unlawful detainer, the lessor may make
several demands to vacate upon the lessee, in which case the one-
year period to file the complaint for unlawful detainer may be reckoned
from the last demand. ·
· Also, in forcible entry, the complaint must be filed with the MTG
within one year from _the ·aate of defendant's actu~I entry on the land_. If
filed beyond one year, the action must be filed with R~C as an eccton
Publiciana.
367
_.,,_,,

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
28. In ejectment cases, Is prior physical possession by the
plaintiff of the property subject of the case indispensable?
~ in forcible entry cases No, in unlawful detainer. Thus, in
an a2tiorr' for unlawful detainer a simple allegation that defendant is
unlawfullywithholding possessionof the property from the plaintiff is
sufficient.(Javelosa v. CA, et al., G.R. No. 124292, Dec. 10, 1996.)
29. P versus D for unlawful detainer. In his complaint, p
alleged that he purchased a lot from X, adjacent to the lot of D.
After a relocation survey, he discovered that a portion of said lot
was occupied-by the house of D. On October 26, 1989,· P-sent'to
D a demand to vacate. Because of D's refusal to vacate P filed an
action for unlawful detainer against him on January 1's, 1990. D
now argues that possession of the portion of plaintiff's lot allege~ly
encroached can be recovered not in an action for ejectment but in
an a~cion publiciana because the complaint did not allege prior
physical possession by the plaintiff of the property in litigation. Is
D correct? · · ,(.):
No, D is not correct.The fact that D oc~u~ie~. th~ !1~/
i~ ··~~estion
prior to P's purchase thereof does not negate the latter's case for
unla~I ~etainer. Prior physicalpossessionis not a conditionsine qua
non rn unlawfuldetainer.This is one of the distinctionsbetweenforcible
entry and unlawfuldetainer. (Benitez v. CA, G.R. No. 104828 Jan 16
1997.) ' .
. 30. ~ was issued a mayor's permit to occupy Stall No. 311
m the public market of Angeles City. At the time of the issuance of
the ~ayor's permit, the stall was occupied by Y. X filed an action
for ejectrnent against Y in the MTC of Angeles City: His complaint
alleges, inter alia:
"2. That the plaintiff is the rightful and lawful stall-
holder of Stall No. 311 xx x; he was issued and he possesses
the corresponding and necessary Mayor's Permit, and such
other necessary permits, papers and/or documents relative
to the said stall;
3. That the plaintiff has been and in dire need of the
aforesaid stall and he. accordingly requested and advised,
both orally and in writing, the defendant to vacate the same,
but the latter unreasonably and unjustifiably failed and
368
RULE ?O - FORCIBLE ENTRY AND UNLAWFUL DETAINER
(and the 1991 REVISED RULE ON SUMMARY PROCEDURE)
refused, and still fails and refuses to vacate the subject stall,
to the damage and prejudice of the plaintiff· a copy of the
demand letter is hereto attached x x x; '
. 5. That due to the unreasonable and unjustifiable
failure and refusal of the defendant to vacate the aforesaid
stall, the plaintiff was constrained to file the instant action."
Question: Does the MTC havejurisdiction over this case? (or,
Is the case a,n action for ejectment?).
No. The action is neithe;~-~ actionfor forcible entry.~~; ~-n action
for-unlawful-detainer.-Therefore; the-MTC has no jurisdiction over-the
case.
In Varona, et al. v. CA, et al., G.R. No. 124148, May 20, 2004, it
was held that:
In action for forcibleentry, two allegationsare mandatoryfor the
MTC to acquire jurisdiction,namely: (1) the plaintiff must allege in his
complaint his prior physical possessionof the property; and (2) he
must also allege that he was deprivedof his possessionby any of the
following means:force, intimidation, threats,strategy, or stealth.
In an actionfor unlawfuldetainer,the possessionof the defendant
is originally lawful but becomesunlawfulby reasonof the tef?1ina~on of
his right of possessionunderhis contractwiththe plaintiff.The complaint
for unlawful detainer is sufficientif it alleges that the withholding of
'
possessionby the defendantor his refusalto vacate is unlawful.
· In the problem presented,the action cannot be forcible entry
becausethere is no allegationin the complaintthat X had prior physical
possessionof Stall No. 311 and that he was deprivedof such posses-
sion by force, intimidation,threats,strategy, or stealth. 1
The action cannot also be unlawful detainer because X did not
have a contract, express or implied,with Y for the possessionof the
stall. Hence, there can be no expirationor terminationof Y's right of
possession over the subject stall. Y cannot, therefore, be said to be
unlawfullywithholdingpossessionof the stall from x.
3 . p sent a letter to D on January 10, 1990, notifying the
latter of the termination of the·lease contract and the non-renewal
thereof unless he would agree to pay a higher· amount as rent. D
continued to stay in the leased premises.On August 10, 1992,P sent
369
I I
I
,I
 --11111T!ll!!III~'··
= -· .. =m=m "' 1 1 '! !1 1"""'-l
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
(
~~~~h~~ g91FORCIBLE ENTRY AND UNLAWFUL DETAINER
REVISED RULE ON SUMMARY PROCEDURE)
I

another letter to D, demanding that the latter vacate the premises imperative. (Salinas, et al. v. Navarro et al GR N L-50259 Nov.
29, 1983.) . I 'I • • O, I •
and pay the back rentals. D did not heed the demand. On September
25, 1992, P filed an action against Din the MTC for unlawful detainer.
~onversely, the filing of the supersedeas bond or the periodic
The MTC dismissed the action for lack of jurisdiction because,
deposit of ~h~ mon~hly rental will not stay the execution of the judgment
according to the court, the action was filed more than one year from
of the Municipal Trial Court if the defendant did not appeal. (Chua, et al.
the time demand was made. Is the MTC correct?
v. CA, et al., G.R. No. 113886, Feb. 24, 1998; Herminia Acbang v. Hon.
No, the MTC is not correct. The one-year period within which a Jimmy Lucson Jr., et al., G.R. No. 164246, Jan. 15, 2014.)
complaint for unlawful detainer may be filed should be counted from
the last letter of demand to vacate. The reason is that the lessor can 33. What is the amount of the supersedeas bond? When
waive his right of action based on previous demands and let the lessee should it be filed? Where should it be filed?
remain in the premises. Moreover, the first notice giving the lessee the
The supersedeas bond is equivalent to the amount of rents,
alternative either to pay the increased rental or vacate the premises is
damages, and costs stated in the judgment of the Municipal Trial Court.
not the demand contemplated by the rules regarding unlawful detainer
Section 19, Rule 70 says the supersedeas bond shall be executed
cases. When after such notice, the lessee stays, he thereby merely by the defendant in favor of the plaintiff to pay the rents, damages,
assumes the new rental and cannot be ejected unless he defaults in and costs accruing down to the time of the judgment appealed from. : i
I I
said obligation and the necessary demand to vacate is first made. [Thus, a motion to fix amount of supersedeas bond is improper because
I

the amount of supersedeas bond can easily be ascertained from the I j

' I
32. If the MTC renders a judgment against the defendanfln judgment of the Municipal Trial Court.]
I :

an ejectment case, may execution issue immediately even if the

judgment has not yet attained finality? How may the defendant The supersedeas bond should be filed within the period for the I:
stay the execution of the judgment? perfection of the appeal. <; J : I
I j

(v?.;\execution shall issue immediately upon motion of the plain-
tiff. I~ ejectment case, the judgment, if against the defendant, is
subject to immediate execution.
But, the defendant may stay execution of the judgment by doing
all these things:
a) he must perfect his appeal;
b) he must file a supersedeas bond; and
c) he must periodically deposit the monthly rental or the rea-
sonable value for the use and occupation of the premises falling due
during the pendency of the appeal. (Rule 70, Sec. 19; Aznar Brothers
Realty Co. v. CA, G.R. No. 128102, March 7, 2000.)
. Thus, in an ejectment case, where the defendant appealed but
did not file a supersedeas bond or did not make any monthly deposit of
the rentals, the plaintiff is entitled as a matter of right to the immediate
execution of the judgment of the municipal trial court. In such a case,
the duty of the court to order immediate execution is ministerial and
It should be filed with the Municipal Trial Court as Section 19 of
Rule 70 even requires that it be approved by the Municipal Trial Court.
But where, after the perfection of the appeal, the records of the case
have been forwarded to the Regional Trial Court within the period I
for perfecting the appeal, then it may be filed with the Regional Trial
Court. For example: Defendant received notice of the judgment of the
I
Municipal Trial Court on July 1, 2001. He filed his notice of app_eal on Ii
I (
July 2, 2001. The Municipal Trial Court forwarded the records of th~ I
I
case to the Regional Trial Court on July 4, 2001. Defendant had until l
July 16, 2001 to file the supersedeas bond. But sin~ the records of the
case had already been forwarded to the Regional Tnal Court, he should
already file it with the Regional Trial Court. (Chua, et al. v. CA, et al.,
G.R. No. 113886, Feb. 24, 1998.)
34. What is the purpose of the supersedeas bond? of the
periodic deposits?
The purpose of the supersedeas bond under Section 19 of R~le
70 is to assure the plaintiff that the rents, damages and costs accruing

370 371
------- ... ·~_.1111.c" 1110····- .. ,- .. ,- ... - ... -, .. - ... - ... -···-···-···-·-···---···--···-·"--lllilffl .!'!.~""

QU~STIONS ANO ANSWERS IN RULE 70 - FORCIBLE ENTRY AND UNLAWFUL DETAINER

REMEDIAL LAW (nnd tho 1991 REVISED RULE ON SUMMARY PROCEDURE)

'rtown to the tlme of the judgrmmt nppealed from" wlll be paid In cnse the stnyod by tho dofondant by filing supersodoas bond and making the
plnlntlff eventually prnvnllfl. Hence, tho amount of the bond wlll depend porlodic doposlt. (Northcostlo Properties & Estate Corp. v.· Judge Pees,
upon Um amount of rents, damnqen, nnd cost fixed In the judgment A.M. No. MTJ-99-1206, Oct. 22, 1999; Teresa T. Gonzales La'O & Co.,
of tho Munlclpnl Trlnl Court. (H11nlrun Consuuction nnd Dovnlopmont Inc. v. Sheriff noto», A.M. No. P-99-1357, April 5, 2000; Uy, et al. v.
Corp., M nl. v CA, ot nl., G.R. No. 051166, Oct. 16, 1992.) Santiago, ot ot., G.R. No. 131237, July 31, 2000.)
Tlnis, where thf> judomont of Urn Munlclpnl Trlnl Court orders the The RTC shall lssuo the writ of execution upon motion of the
pnyment of attorney's reas nnd IIIIOAtlon expennes, but does not ad- plaintiff. If the RTC rofuses to lssuo the writ of execution pending appeal,
judgA tho payment of back rentals, clamno fl, and contn, supnrsedeaa plolntlff's remody Is mtmaemus because, In this case, the Issuance of
bond ls not necessary The attorney'a fees and lltlontlon expenses need the writ of oxecutlon ponding appoal Is a clear duty of the RTC Judge
not be covered by a auperaedeae bond. (Aznflr Drotlwm Ronlty, Co. v. under the law. (Uy, ot al. v. Sontlogo, et ot., G.R. No. 131237, July 31,
CA G.R. No. 120102, Mnrcll 7, 2000.) 2000.) ·
The periodic depoalts, on tho other hand, olmll anawer for those
rents nocrulno during the pendency of thA appeal. (Chun, ot nl. v. Cl\, ot 37. In nn npponl from tho Judgmont of tho MTC In an eject·
fl/,, G.R. No. '113086, F£JlJ. 24, 1!>90.) mont cnso, mny tho RTC ordor tho conduct of a relocatlon and
vorlflcntlon survoy In nld of Its nppollnto Jurisdiction and thon
36,
SupJloso durlno tho pondonoy of tho nppeel, tho deten- docldo tho cnso on tho basis of tho rosult of tho survey and tho
dam, who has fllocf a supereedeas bond, fftlls to mnko tho pmlodlc tostlmony of tho survoyor?
deposit of tho rent, nrny tho Juctomont npponlod from bo oxooutod? No. Tho ronson Is lhnt euch n rolocatlon and vorlflcatlon survey,
If sn, whnt court wll! order tho exooutlon of tho Judomont?
... no woll ns honrlno tho teotlmony of tho survoyor, constltutos a trial de
(.y~!!.
the juooment nppenlad from mny bo executed on motion of ,,ovo. In m1 npponlod r.noo, lho HTC nmy not conduct n rohomlno or
th('! plnln\lff, 11ut tho oxoc11t1011 of thn j11d11111nnt
11111111 lm with r npoct trlnl c/o 11ovo. Thin In t10 hor.mmo Soctlon 10, Rulo 70, provldos thnt the
onlv to th11 , fmtorntlnn or po11nnnnlon. Juctomont rondorod In nn nr.tlon for forclblo ontry or unlnwful dotnlnor
"ohnll ho npponlnlilo to tho nrproprl11to Ronlo11nl Trlnl Court which flholl
Ihe Raolonnl Trlnl Court, m1 tho nppollnto court, nhnll order tho rtoclcln tho 1 1110 on tho hnnln or tho ontlro rncord of tho procoodlnos
fl ·er.1111011 or the J\ldoment. 11111 tho ox r.utlon of tho Juctomont shnll not Imel In tho court of orlol11 nnd m1r.l1 momornndn nnd/or brlofH nn rnny
h~ fl h~r to th apponl tnklnp llt1 course until thfl fln{ll (ilt1pot1ltlon thereot t,o m1hmlttod hy tho pmtlon or rnqulrnd by tho Roolonnl Trlnl Court."
on thfl marlltt. (Rulo 70, ~or., U>.) (Mmmlnno, ot nl. v. Dncn11/, G,R. No. 150005, Jnn. ·12, 2016.)
fl. $u~lpOtU\, In an ojoatmont oaae, tho cfofonclnnt HllJ>nnloct 30 Wtrnt dnmnnoa mny tho plnlntlff rocovor from tho dofon-
from tho Juctu1mmt or tho MTC. tlo fllod n ftllJlortuulona bond nnct
d1mt In 1111 ojoctmont Hult?
mncto tho perlodln cloJmttll to Rtlly tlm oxnoutlon of tho Jucioment of
tho Ml c. In rtuo tlmo, tho RTG ,,mctt>1'0<l ltt1 Jmlomont, nffh'mlno tho Tho only d11111ngon thnt tho plnl11tlf r.1111 wcovur fro111 tho dofon-
Juciomont or tho MTC. Tho ctofoncinnt nJl~H,alocl tho RTC Juctomont dMt In nn, Jncli111111t uult 111,1 thn folr rontnl vnluo or tho rnnaonnl.Jlo com-
t() tho CA. Iii tho tnc Juctpmtlnt lmmocilfttoly oxooutory cltl11pltn tho 0('1l otlon for tho 11Rn nnct ooournllon of tho ronl proporty m1bjoct of tho
JHmcionoy of tho OJlpunl at tho CA? Ml\y Urn ctMondnnt 1ltlll tny w.
milt. (Ff>ll!:ll<ltl, utt,I. v, Villfllllt(MI, flt ttl., (,,H. No. L-603i'2, Qc;t, 1905,•
th I xonutlon of tho Judomont of tho RTC by "pnln - flllnp n Amnr nmtlrfJrn Rfmlty Co. v. CA. GR. No. 12lH02, Mnrcll 7, 2000.) ·
u1wrttoctQfltl l>on<f nnrt nH\klno tho ~mrlocilo ctoJlO It?
It M\fl h let In //Mfftl'(I, t>t nl. v. Dollos, ot nl.1 G.R No. 130'>60, Jnn.
,1Udf11'Wllt o th1} rn , h I n 11ppt1t1I (I t} 11(.tmt)nt ,fl Iii Imm di-. 1 o, 200~, th flt 111 forclhltl ttntry Md d tAlnor am1on, tho word "ctnmn{loo"
1tf ly v,ricuh »v iWr n whllt pcmdlnu upptinl nt th,, A tmd cnnn t hn m~ilnll "~ntn" or "r~flt101rnblt) comnt'lnontlon for tho uo@ fmct occupntlon

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
of the premises" or "fair rental value of the property." Temperate, actual,
moral, and exemplary damages are neither rents nor reasonable
compensation for the use and occupation of the premises, nor fair
rental value, and are not recoverable in such cases.
39. X sued Y for unlawful detainer. The contract of lease
between them provides, among other things, that "after the
termination of the lease,Y, the lessee,shall deliver to X, the lessor,
the leased premises vacant and unencumbered.In case Y falls to
do so, X has the right to charge Y P1,000 per day as damages
without prejudice to other remedies which X may pursue against
Y." In due time, the Municipal Trial Court rendered judgment
ordering Y to vacate the leased premises and to pay X the unpaid
rents amounting to PS0,000 and the further sum of P1 ,000 per day,
by way of damages, for his failure to turn over to X the leased
premises after the termination of the lease. Y appealed from the
judgment only insofar as it ordered him to pay the sum of f>.1,000
per day as damages.According to him, such award is improper in·
t~e light of decisional rule that the only damagesthat the plaintiff
can recover from the defendant in an ejectment sult' are the fair
rental value or the reasonable compensation for the use 5and
occupation of the property. Is Y's appeal meritorious?
GJd. Y's appeal is not meritorious. His argument that the only
damages the plaintiff can recover from the defendant in an ejectment
suit are the fair rental value or the reasonable compensation forthe
use and occupation of the real property is misplaced. The stipulation
regarding the payment of P1 ,000 per day is an agreement for liquidated
damages which the Municipal Trial Court may very well enforce.
(Azcuna, Jr. v. CA, et al., G.R. No. 116665, March 20, 1996.)
40. P sued D for forcible entry. Servedwith summons, D filed
an answer and pleaded a compulsory counterclaim of P100,000 for
moral damages.Finding that the allegations in the complaint were
not true, the Municipal Trial Court rendered judgment dismissing
the complaint and awarding D his counterclaim for moral damages.
P appealed to the Regional Trial Court. In his appeal, P argued
that the lower court erred in awarding moral damages because,
according to him, the only recoverable damages in an ejectment
suit are the fair rental value or the reasonable compensation for
the use and occupation of the real property subject of the suit.
374
RULE 70 - FORCIBLE ENTRY AND UNLAWFUL DETAINER
(and the 1991 REVISED RULE ON SUMMARY PROCEDURE)
Is P's argument correct?
No, P's argument is not correct. In this case, moral damages are
awarded as counterclaim, not as damages for the unlawful occupation
of the property. The rule allows a defending party to set up, by way of
counterclaim, a claim for money or any other relief which he may have
against the opposing party. (Agustin, etc. v. Baca/an, et al., G.R. No.
L-46000, March 18, 1985.)
41. What provisional remediesare available to the plaintiff
in forcible entry or unlawful detainer cases? And, when may he
avail himself of such provisional remedies? ' : ··
The following:
a) . Rreliminary prohibitory injunction, to prevent the defendant
from committing further acts of dispossession against the plaintiff;
b)
»r>:: •preliminary mandatory injunction, to restore plaintiff in his
possession. Plaintiff must file the motion for the issuance of preliminary
mandatory injunction within five days from the filing of the complaint;
and
· c) preliminary mandatory injunction, to restore plaintiff in his
possession if the Municipal Trial Court has already rendered a judgment,
and the judgment is appealed to the Regional Trial Court. Plaintiff must
file the motion for the issuance of preliminary mandatory injunction
within 1 o days from the perfection of the appeal. Here, it is t~e. Reg~on~I
Trial Court that will issue the writ of preuminary mandatory injuncticn 1f
said court is satisfied that: (a) defendant's appeal is frivolous or dilatory;
or (b) plaintiffs appeal is prima facie meritorious. (Rufe 70, Secs. 15
· and 20.)
. __ . __ -- ~··----
375
e,

RULE 71
CONTEMPT
1. What is the remedyof a person adjudgedin contempt?
a) lfhe is adju_29edi~ direct contempt by any court, his rem~dy
is either ert,oran r l?fohibittoA. He cannot appeal from the order finding
him guilty of direct ~pt. Pending the resolution of his petition
tor certiorari or prohibition, the execution of the judgment shall be
suspended provided he files a bond fixed by the court which rendered
the judgment and conditioned that he will abide by the judgment should
his petition be decided against him; and
b) lfhe as adjudged.in indirect contempt, his remedy is@
from the judgment or final order finding him guilty of indirect contempt.
The execution of the judgment may also be suspended provided he
files a bond. (Rule 71, Secs .• 2 and 11.)
2. Whatare the two types of contemptpenalizedunder the
Rulesof Court?
They are:
a) Direct Contempt, which is committed in the presence of or
so near a court as to obstruct. or interrupt the proceedings before 'the
same, and includes 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; and
b) Indirect Contempt, which may be committed in any of the
ways enumerated in Section 3, Rule 71.
Contempt, whether direct or indirect, may be civil or criminal
depending on the nature and effect of the contemptuous act.
_ Criminal contempt is conduct directed against the yothority and
pfgnrty of the court or a judge acting judicially; it is an act obstructing
the ~dministration of justice which tends to bring the court into disrppute
or disrespect.
376
RU E 71 - COrITEMPT
Civil contempt Is the fall.ur..e to o D Pthi ordered to be done
by a court or a judge for the benefr r the ppo ing party nerem and
is therefore an offense .against the party rn whosP. b":lhalr th" · iolated
order was made.
Ir the purpose is to punish, then it is criminaJ contempt: rf the
purpose is to compensate, then rt is civil contempt. (Montenegro v;
Montenegro, G.R. No. 156829, June 8, 2004.)
3. I How may indirect cont.empt be initiated (or com-
menced)?
Indirect contempt may be initiated or commenced ehner:
a) motu proprio by the court by issuing an order or any other
formal charge requiring the respondent to show cause why he should
not be punished for contempt; or
b) by the filing of a verified petition, complying with the require-
ments for filing initiatory pleadings for civil actions in court, (Sec. 4, Rule
71; Montenegro v. Montenegro, G.R. No. 156829, June 8, 2004.)
ff the proceedings for indirect contempt is commenced by
verified petition, there should be a certification on non-forum shopping
incorporated therein or appended thereto. Note, however. hat direct
contempt may be punished summarily; thus, a show-cause order or a
verified petition is not required to punish a person for direct contempt.
In Sesbreflo v. Jgonia, A.M. No. P-04-1791, Jan. 27. 2006, the
Supreme Court said: "A charge of indirect contempt must be filed in the
form of a verified petition if it is not initiated directly by the court against
which the contemptuous act was committed. We clarified on previous
occasions that such petition is by a special civil action. Certified true
copies of related documents must be submitted with the petition and
appropriate docket fees must be paid. The requirement of a verified
petition is mandatory.·
4. Proceedingsfor indirect contempt may be initiated or
commencedeither: (a) motu proprio by the court against which the
contempt was committed by an order or any other formal charge
requiring the respondent to show cause why he should not be
punished for contempt; or (b) by the filing of a verified petition,
upon full compliance with the requirements for filing Initiatory
377

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
pleadings for civil actions. When may indirect contempt be initiated
by the court motu proprio and when may it be initiated by the filing
of a verified petition?
If the alleged misbehavior constituting the indirect contempt
is within the knowledge of the court, then the court may initiate the
proceedings for indirect contempt motu proprio. This applies even if
a motion to cite respondent in contempt was filed, provided that inde-
pendently of such motion, the court may very well issue a show-cause
order because the misbehavior constituting the indirect contempt is well
within its knowledge. (Leonidas v. Supnet, A.M. No. MTJ-02-1433, Feb.
21, 2003.)
But if the court has no knowledge of the misbehavior allegedly
committed by the respondent, then the proceedings for indirect contempt
should be initiated by a verified petition, not by a mere motion. If such
misbehavior is brought to the attention of the court through a motion to
cite respondent in indirect contempt, the court cannot, on the basis of
such motion, issue an order requiring the respondent to show cause
why he should not be punished for contempt. (Regalado v. Go, G.R. No.
167988, Feb. 6, 2007.)
5. X filed a complaint against Y with the RTC for recovery
of damages with prayer for issuance of a writ of replevln of a car.
The RTC issued the writ of replevln for the seizure of the car. Y filed
a petition for certiorari with the CA to annul the writ of replevln.
The CA decided In favor of Y and annulled the challenged writ. The
CA's decision became final because X did not appeal therefrom. In
due time, the RTC issued an order directing X to comply with the
CA decision within five days from receipt of the order. X failed to
comply.
a) Is X guilty of Indirect contempt?
b) Suppose the RTC found X guilty of Indirect contempt
and sentenced him to pay a fine of P500. Is the penalty of fine only
correct?
~X is guilty of indirect contempt. Section 3, Rule 71 of the 1997
Rules of Civil Procedure enumerates the acts punishable as indirect
contempt, among which is "disobedience of or resistance to a lawful
writ, process, order, or judgment of a court."
378
r
I
RULE 71 ...:...:coNTEMPT
I
~the penalty of fine only is not correct. X, the disobedient party,
\ shou~o be _incarcerated for disobeying the order. His incarceration
may be indefinite because Section 8, Rule 71 provides that: "(W)hen
the contempt consists in the refusal or omission to do an act which is
yet in the power of the respondent to perform, he may be imprisoned
by order of the court concerned until he performs it." (Chan v. CA, G.R.
No. 138758, July 6, 2000.)
6. Suppose the defendant refuses to yield possession of
the property as ordered by a writ of execution, is contempt the
proper remedy?
@. contempt is not the proper remedy. The remedy isfor the
sheriff to oust the defendant from the subject property. If a i::lemolition
is necessary, there must be a special order of demolition to be issued
by the court upon motion, with due notice, and after hearing pursuant to
Section 10(d) of Rule 39. (Morta, Sr., et al. v. Sanez, et al., A.M. RTJ-
00-1593, Oct. 16, 2000.)
7. Regarding submission of false certification on non-
forum shopping, Section 5, Rule 7 provides: "The submission of
a false certification or non-compliancewith any of the undertaking
therein shall constitute Indirect contempt of court, without preju-
dice to the corresponding administrative and criminal actions."
Suppose the party and his lawyer submitted a false certification,
may the court Immediately declare the party and his lawyer in con-
tempt of court and Impose upon each of them a penalty of fine?
No.
Under the rule, the submission of false certification constitutes
indirect contempt of court, without prejudice to the filing of criminal
action against the guilty party and the institution of administrative action
against his counsel. Unlike in cases of direct contempt which can be
summarily adjudged and punished by a fine, a finding of guilt for indirect
contempt must be preceded by a charge in writing, an opportunity given
to the respondent to comment thereon and to be heard by himself _or by
counsel in a hearing. Indirect contempt cannot, therefore, be punished
summarily. (Espinosa v. CA, et al., G.R. No. 128686, May 28, 2004.)
379
 ---"T,
THE REVISED KATARUNGANG
PAMBARANGAY LAW
1. All disputes are subject to barangay conclllatlon pur-
suant to the Revised Katarungang Pambarangay Law, and prior
recourse thereto Is a pre-condition for filing a complaint In court
or any government office. What are the exceptions?
... ·.}
The followingare the exceptions:
a) where one party is the government, or any subdivision or
instrumentalitythereof;
b) where one party is a public officer or employee, and the
dispute relatesto the performanceof his official functions;
c) wherethe disputeinvolvesreal propertieslocated in different
citiesand municipalities,unlessthe partiesthereto agree to submit their
differenceto amicablesettlementby an appropriateLupot);
d) any complaint by or against corporations, partnerships, or
juridical entities, since only individuals shall be parties to barangay
conciliationproceedingseither as complainantsor respondents;
e) disputes involvingparties 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
differencesto amicablesettlementby an appropriateLupon; .
f) offensesfor which the law prescribesa maximumpenaity'of
imprisonmentexceedingone year or a fine over P5,000;
g) offenseswhere there is no private offended party; and
h) disputes where urgent legal action is necessary to prevent
injustice from being committed or further continued, specifically the
following:
1. criminal cases where'accused is under police custody
or detention;
380
THE REVISED KATARUNGANG PAMBARANGAYLAW
2. petitionsfor habeas corpus by person illegally deprived
of his rightful custody over another person or a person illegally
deprived of his liberty or one acting in his behalf;
3. actions coupled with provisional remedies such as
preliminary injunction,attachment,delivery of personal property,
and support during the pendencyof the action; and
4. actions which may be barred by the Statute of Limita-
tions.
. i) any class of disputes which the President may determine
in the interest of justice or upon the recommendationof the Secretary
of Justice; disputes arising from the ComprehensiveAgrarian Reform
Law; labor disputes or controversiesarising from employer-employee
relations; and
j) actions to annul judgment upon a compromise which may
be filed directly in court. {Adm. Circular No. 14-93, par. II.)
2. If plaintiff's case is not one of the exceptions mentioned
above, and he files his complaint directly in court, what is the
remedy of the defendant?
The remedy of the defendant is to file a motion to dismiss the
complaint on the ground that a condition precedent for the filing of the
claim has not been compliedwith. (Rule 16, Sec. 1.)
3. Without first referring the dispute to the barangay /upon,
X, as administrator, filed a complaint, on behalf of the Intestate
Estate of Y, against Z. Z moved to dismiss the complaint on the
ground that a condition precedent for filing the claim has not been
complied with_ because of lack of prior referral of the dispute to the
/upon. Rule on the motion to dismiss.
Motionto dismiss,denied.X, who is suing on behalf of the intestate
estate of Y, is merely a nominal party. The real party-in-interest is the
intestate estate of Y which is a juridical person. Hence, X may file the
complaint directly in court without the dispute being first referred to the
lupon. (De Borromeo v. Pogoy, et al., G.R. No. L-63277, Nov. 29, 1983.)
4. AB flied a complaint for damages against CD for alleged
disrespect of dignity and peace of mind under Article 26 of the Civil
Code. Although the parties are residents of the same city, AB did
381

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
not comply with the requirement of prior referral of the dispute to
the appropriate Lupon. Defendant CD moved for the dismissal of
the complaint. Before filing an opposition to the motion to dismiss,
plaintiff AB filed an application for the issuance of a writ of pre-
liminary attachment. The trial court denied the motion to dismiss on
the ground that under Rule 57 an application for the issuance of a
writ of preliminary attachment may be made at the commencement
of the action or at any time before entry of judgment. Is the trial
court correct in denying the motion to dismiss?
The trial court is not correct. It is clear that the application for the
issuance of a writ of preliminary attachment was merely an afterthought
and was resorted to as a means to evade the application of the
Katarungang Pambarangay Law. (Peregrina v. Panis, et al., G.R. No.
56011, Oct. 31, 1984.)
5. State the rules regarding venue of the disputes.
The rules are:
a) disputes between persons actually residing in the same
barangay shall be brought for amicable settlement before the /upon of
said barangay;
b) disputes involving actual residents of different barangays
within the same city or municipality shall be brought in the barangay
where the respondent or any of the respondents actually resides, at the
election of the complainant;
c) all disputes involving real property or any interest therein
shall be brought in the barangay where the real property or the larger
portion-thereof is situated; and
. d) disputes arising at the workplace where the contending
parties are employed or at the institution where such parties are enrolled
forstudy shall be brought in the barangay where such workplace or
institution is located. (R.A. 7160, Sec. 409.)
. 6. At what stage may the respondent raise the question of
improper venue? .
. T~e respondent may raise the question of improper venue in the
mediation proceedings before the punong barangay; otherwise, the
same shall be deemed waived. (R.A. 7160, Sec. 409.)
382
-·--···--, •. ,_,.,..,_UJ.-rnllllll~IU llU:=iiiiiiil.J.Llc:=millJ
THE REVISED KATARUNGANG PAMBARANGAYLAW
7· State briefly the procedure for settlement of dispute at
the barangay level.
· First, complainant complains orally or in writing to the /upon
chairman of the barangay, ·
· Se~nd, within the next working day from receipt of the complaint,
lupon chairman summons the respondent, with notice to the complain-
ant, for them and their witnesses to appear before him for mediation;
Third, if /upon chairman fails in his mediation efforts within 15
days from the first meeting of the parties, he shall set the date for the
constitution of the pangkat,
. Fourth, pangkat convenes not later than three days from its con-
stitution to hear both parties and their witnesses, simplify issues, and
explore all possibilities for amicable settlement;
Fifth, pangkat shall arrive at settlement or resolution of the dispute
within 15 days, extendible for another 15 days, from the day it convenes.
(R.A. 7160, Sec. 410.)
! • 8. For disputes brought to the Lupon Tagapamayapa or
Pangkat Tagapagkasundo, who issues the certification to file
action? and when?
Supreme Court Administrative Circular No. 14-93 provides that
the certification for filing a complaint in court or any government office
shall be issued by barangay authorities only upon compliance with the
following requirements:
a) Issued by the Lupon Secretary and attested by the Lupon
Chairman (Punong Barangay), certifying that a confrontation of the
parties has taken place and that a conciliation or settlement has been
reached, but the same has been subsequently repudiated;
b) Issued by the Pangkat Secretary and attested by the Pang-
kat Chairman, certifying that:
(1) confrontation between the parties took place but no
conciliation and/or settlement has been reached;
(2) no personal confrontation took place before the Pang-
kat through no fault of the complainant;
c) Issued by the Punong Barangay, as requested by the proper
party on the ground of failure of settlement where the dispute involves
383
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
be f the same indigenous cultural community, which sh~II be
m~med 1~mmunity,
_rs :ccordance with the customs and traditions of that particular
:ltural or where one or more of the parties ~o the afore-
said dispute belong to the cultural mi_no~ty and the parties m~tually
agreed to submit their dispute to the indigenous s~stem of amicable
settlement, and there has been no settlement as certified by the datu or
tribal leader or elder to the Punong Barangay of the place of settle~ent._
9. x filed a complaint against Y with th~ Barangay Cap-
tain of Angin. The Barangay Captain (who i~ himself the Lupon
Chainnan) set the case for hearing, but Y failed to appear, When
the case was again set for hearing, the parties appeared but they
failed to reach an amicable settlement. Whereupon, the Barangay
Captain issued a certification to file action. X then filed his com-
plaint against Y before the MTCof Naguilian. Y moved to dismiss·
the complaint on the ground that no Pangkat was. convened to
settle the dispute. Rule on Y's motion.
Motion denied for lack of merit. Although no Pangkat was con-
vened, there was substantial compliance with the law. Under Section
412 of the Local GovernmentCode, the confrontationbefore the Lupon
chairman is sufficient compliance with the precondition for filing the
case in court. (Diu v. CA, et al., G.R. No. 115213, Dec. 19, 1995.)
10. What is the effect of the filing of the complaint on the
applicable prescriptive period?
The prescriptiveperiods for offenses and cause of action under
existing laws shall be interrupted upon filing of the complaint with the
punong barangay. The prescriptiveperiods shall resume upon receipt
by the complainantof the certificate of repudiationor the certification to·
file action issued by the /upon or pangkat secretary. Such interruption
shall not exceed 60 days from the filing of the complaintwith the punong
barangay. (R.A. 7160, Sec. 410[c].) ' enforce the compromise or regard it as rescinde_d and insist u~on his
11. If the parties have reached asettlemant of their dispute,
in what form must the settlement be?
All amicablesettlement shall be in writing, in a language or dialect
known to the parties, signed by them, and attested to by the /upon
chairman or pangkat chairman, as the case may be. (R.A. 7160, Sec.
411.) .. , vides for a two-tiered rriode of enforcement of an amicable settlement,
384
THE REVISED KATARUftGANG PAMBARANGAYLAW
12. What is the effect of the amicable settlement?
If the amicable settlementis not repudiated by any of the parties
within 10 days from the date thereof, it shall have the effect of a final
judgment of a court after the expirationof the said 10-day period. (R.A.
7160, Sec. 416.)
13. How may a party to the dispute repudiate the amicable
settlement?
Any party to the dispute may repudiate the settlement by filing
with the /upon chairman, within 10 days from the date of the settlement,
a statement of repudiation sworn to before him, on the ground that the
consent of said party is vitiated by fraud, violence, or intimidation. Such
repudiation shall be sufficient basis for the issuance of the certification
to file action. (R.A. 7160, Sec. 418.)
14. ff the amicable settlement is not repudiated within 10
days from the date thereof, how may it be enforced?
It may be enforced by execution by the /upon within six months
from the date of the settlement.
. · After the lapse of the six-month period, it may be enforced by
action in the appropriate MunicipalTrial Court. (R.A. 7160, Sec. 417.)
15. If the parties have reachedan amicable settlement.after
conciliation proceedings in the barangay, but one party fails or
refuses to abide by the compromise, what are the options of the
other party?
The other party may either enforce the compromise or regard it
as rescinded and insist upon his original demand. This is based on
Article 2041 of the Civil Code which provides: "If one of the parties
fails or refuses to abide by.the compromise, the other party may either
original demand." If he exercises the second option, he m~y bnng the
suit. contemplated or involved in his original dema~d•. as 1f the~e had
never been any compromiseagreement, without bnng,n~an action for
rescission. This is because he may regard the compromise as already
rescinded by the breach thereof by the other party.
It is true that the Revised Katarungang Pambarangay Law pro-
385
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW THE REVISED KATARUNGANG PAMBARANGAYLAW

as follows: (a) by execution by the Punong Barangay which is quasi- The remedy against
. . . an ar b'itration
. award .rs to file with
. the appro-
judicial and summary in nature on mere motion of the party entitled
priate Municipal Trial Court a petition for its nullification within 10 days
thereto within six months from date of settlement; and (b) an action in from the date thereof. (R.A. 7160, Sec. 416.)
regular form in the Municipal Trial Court, which remedy is judicial, after
the lapse of the six-month period; yet, the foregoing modes of enforce-
21. If no petition for its nullification is filed within 1 O days
ment of amicable settlement does not rule out the right of rescission from the date of the arbitration award, what is the effect of such
under Article 2041 of the Civil Code. (Chavez v. CA, et al., G.R. No. arbitration award?
159411, March 18, 2005.)
The arbitration award shall have the effect of a final judgment of
16. What is arbitration? a court. {R.A. 7160, Sec. 416.)

It is the process of resolving a dispute or a grievance outside of
the court system by presenting it to a third party or panel for decision.
(Merriam-Webster's Dictionary of Law, 31 [1996).)
17. May the parties submit their dispute for arbitration?
Yes, the parties may submit their dispute to the /upon chairman
or the pangkat for arbitration, but they must first enter into a written
agreement to arbitrate.
The written agreement to arbitrate shall state that the parties shall·
abide by the arbitration award of the /upon chairman or the pangkat.
(R.A. 7160, Sec. 413.)
18. May any of the parties repudiate the agreement to
arbitrate?
Yes, but he must do so within five days from the date· of the aqree-
ment to arbitrate. (R.A. 7160, Sec. 413.) , ·
22. How may an arbitration award be enforced?
It may be enforced by execution by the /upon within six months
from the date of the arbitration award.
After the lapse of the six-month period, it may be enforced by
action in the appropriate Municipal Trial Court. (R.A. 7160, Sec. 417.)
23·. In Katarungang Pambarangay proceedings, may the
parties appear with the assistanceof their counsel?
No. In fact the appearance of a lawyer in all Katarungang Pamba-
rangay proceedings is prohibited. Section 415, RA. 7160 provides: "In
all Katarungang Pambarangay proceedings, the parties must appear in
person without the assistance of counsel or representative, except for
minors and incompetents who may be assisted by their next-of-kin who
are not lawyers."

19. Within what time shall the /upon chairman or the pangkat
make the arbitration award?- and in what form? ' .
The /upon chairman or the pangkat shall make the arbitration
award after the expiration of the period for repudiation of the agreement
to arbitrate and within 10 days thereafter. The arbitration award shall
be in writing and in the language or dialect known to the parties. (R.A.
7160, Sec. 413.)

20. Can the arbitration award be repudiated?

No, the arbitration award cannot be repudiated.

387·
386

APPENDICES
APPENDIX A
RULES OF CIVIL PROCEDURE*
Rule 1
GENERAL PROVISIONS
SECTION 1. Title of the Rules. - These Rules shall be known
and cited as the Rules of Court. (1)
SEC. 2. In what courts applica~le. ~ These Rules shall apply in
all the courts, except as otherwise provided b·y the Supreme Court. (n)
SEC. 3. Cases governed. - These Rules shall govern the
procedure to be observed in actions, civil or criminal, and special
proceedings.
(a) A civil action is one by which a party sues another
for the enforcement or protection of a right, or the prevention or
redress of a wrong. (1a, R2)
A civil action may either be ordinary or special. Both are
governed by the rules for ordinary civil actions, subject to the
specific rules prescribed for a special civil action. (n)
(b) A criminal action is one by which the State prosecutes
a person for an act or omission punishable by law. (n) . more suits are instituted on the basis of the same cause of action, the
(c) A special proceeding is a remedy by which a party
seeks to establish a status, a right, or a particular fact. (2a, R2)
SEC. 4. In what cases·not applicable. - These Rules shall not
apply to election cases, land registration, cadastral naturalization and
insolvency proceedings, and other cases not herein provided for, except
. . *Effective July 1, 1997, per resolution of the Supreme Court in Bar Matter No. 803,
Apnl 8, 1997, Baguio City. . actions governed by special rules;
388
'1
APPENDIX A
RULES OF CIVIL PROCEDURE
by anal?gy or in a suppletory character and whenever practicable and
convenient. (R143a)
. SE~. 5. Commencement of action. -A civil action is commenced
bythe filing o: the original complaint in court. If an additional defendant
is ,~pleaded in a later pleading, the action is commenced with regard
to him on the da_te of the filing of such later pleading, irrespective of
whether the motion for its admission, if necessary, is denied by the
court. (6a) _
. SEC. 6. Construction. - These Rules shall be liberally construed
in order to promote their. objective of securing a just, speedy and
in~xpensive disposition of every action and proceeding. (2a)
CIVIL ACTIONS
Ordinary Civil Actions
Rule2
CAUSE OF ACTION
SECTION 1. Ordinary civil actions, basis of. - Every ordinary civil
~?lion must be based on a cause of action. (n)
SEC. 2. Cause of action, defined. ~ A cause of action is the act or
omission by which a party violates a right of another. (n)
SEC. 3. One suit for a single cause of action. -A party may not
institute more than one suit for a single cause of action. (3a)
SEC. 4. Splitting a single cause of action; effect of. - If two or
filing of one or a judgment upon the merits in any one is available as a
ground for the dismissal of the others. (4a)
SEC. 5. Joinderofcauses of action. -A party may in one pleading
assert, in the alternative or otherwise, as many causes of action as he
may have against an opposing party, subject to the following conditions:
-. (a) The party joining the causes of action shall comply with
the rules on joinder of parties; · . ·
(b) The joinder shall not include special civil actions or
389
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Where the causes of action are between the same parties
but pertain to different venues or jurisdictions, the joinder may be
allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the venue lies
therein; and
(c) Where the claims in all the causes of action are prin-
cipally for recovery of money, the aggregate amount claimed shall
be the test of jurisdiction. (Sa)
SEC. 6. Misjoinder of causes of action. - 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. (n)
Rule3
PARTIES TO CIVIL ACTIONS
SECTION 1. Who may be parties; plaintiff and defendant. ~ Only
natural or juridical persons, or entities authorized by law may be parties
in a civil action. 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 counterclaim, the cross-defendant, or the third
(fourth, etc.)-party defendant. (1a)
SEC. 2. Parties in interest. -A real party in interest is the party
who stands to be benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Unless otherwise authorized by
Jaw or these Rules, every action must be prosecuted or defended in the
name of the real party in interest. (2a)
SEC. 3. Representatives as parties. - Where the action is
allowed to be prosecuted or defended by a representative or someone
acting in a fiduciary capacity, the beneficiary shall be included in the
title of the case and shall be deem_ed to be the real party in interest.
A representative may be a trustee of an express 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 may sue or be sued without joining the principal except when
the contract involves things belonging to the principal. (3a)
390
APPENDIX A
RULES OF CIVIL PROCEDURE
SEC. 4. Spouses as parties. - Husband and wife shall sue or be
sued jointly, except as provided by law. (4a)
SEC. 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 /item. (Sa)
SEC. 6. Permissive Joinder of parties. -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, except as otherwise provided in
these Rules, join as plaintiffs or be joined as defendants in one com-
plaint, where any question of law or fact common to all such plaintiffs
or to all such defendants may arise in the action; but the court may
make such orders as may be just to prevent any plaintiff or defendant
from being embarrassed or put to expense in connection with any
proceedings in which he may have no interest. (6)
SEC. 7. Compulsory joinder of indispensable parties. - Parties
in interest without whom no final determination can be had of an action
shall be joined either as plaintiffs or defendants. (7)
SEC. 8. Necessary party. - A necessary party is one who is
not indispensable but who ought to be joined as a party if complete
relief is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action. (Ba)
SEC. 9. Non-Joinder of necessary parties to be pleaded. -
Whenever in any pleading in which a claim is asserted a necessary
party is not joined, the pleader shall set forth his name, if known, and
shall state why he is omitted. Should the court find the reason for
the omission unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justi-
fiable cause, shall be deemed a waiver of the claim against such party.
a
· The non-inclusion of necessary party does not prevent the court
from proceeding in the action, and the judgment rendered therein shall
be without prejudice to the rights of such necessary party. (Ba, 9a)
SEC. 10. Unwilling co-plaintiff. - If the consent of any party who
should be joined as plaintiff cannot be obtained, he may be made a
defendant and the reason therefor shall be stated in the complaint. (10)
391
 QUESTIONS AND ANSWERS tr~
REI ~EDIAL LAW
SEC. 11. Misjoinder and non-joinder of parties. - Neither mls-
joinder no non-joinder of parties is ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion of
any party o on its own initiative at any stage of the action and on such
terms as are just. Any claim against a misjoined party may be severed
and proceeded with separately. (11a)
SEC. 12. Class sui: -When the subject matter of the controversy
is one or common or general interest to many persons so numerous
that it Is impracticable to join all as parties, 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 an. Any party in interest shall have the right to intervene to protect his
individual interest. (12a)
SEC. 13. Alternative defendants. - Where the plaintiff is uncer-
tain against who of several persons he is entitled to relief, 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. (138)
SEC. 14. Unknown identity or name of defendant. - Whenever
the identity or name of a defendant is unknown, he may be sued as the
unknown owner, heir, devisee, or by such other designation as the case
may require; when his identity or true name is discovered, the pleading
must be amended accordingly. (14)
SEC. 15. Entity without juridical personality as defendant. -
When ~o or mo_re persons not organized as an entity with juridical
personaJ,ty enter mto a transaction, they may be sued under the name
by which they are generally or commonly known.
In the answer of such defendant, the names and addresses of the
persons composing said entity must all be revealed. (15a)
S~C. 1 ~- De~th of party; duty of counsel. - Whenever a party to
a pending actio~ dies, and the claim is not thereby extinguished, it shall
be the duty of his counsel to inform the court within thirty (30) days after
such death of the fact thereof, and to give the name and address of his
~al r~presentative or representatives. Failure of counsel to comply
with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for
the deceased, without requiring the appointment of an executor or
392
APPENDIX A
RULES OF CNIL PROCEDURE
administrator and the court may appoint a guardian ad /item for the
minor heirs.
The court shall forthwith order said Jegal representative or
representatives to appear and be substituted within a period of thirty
(30) days from notice.
If no legal representative is named by the counsel for the deceased
party, or rf the one so named shall fall 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 ratter 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. (16a, 17a)
SEC. 17. Death or separation of a party who is a public officer.
- When a public officer is a party in an action in his official capacity
and during its pendency dies, resigns, or otherwise ceases to hold
office, the action may be continued and maintained by or against his
successor if, within thirty (30) days after the successor takes office or
such time as may be granted by the court. it is satisfactorily shown to
the court by any party that there is a substantial need for continuing or
maintaining it and that the successor adopts or continues or threatens
to adopt or continue the action of his predecessor. Before a substitution
is made, the party or officer to be affected, unless expressly assenting
thereto, shall be given reasonable notice of the application therefor and
accorded an opportunity to be heard. (1 Ba)
SEC. 18. Incompetency or incapacity. - If a party becomes
incompetent or incapacitated, the court, upon motion with notice,
may allow the action to be continued by or against the incompetent
or incapacitated person assisted by his legaJ guardian or guardian ad
/item. (19a)
SEC. 19. Transfer of interest - In case of any transfer of interest,
the action may be continued by or against the original party, unless the
court upon motion directs the person to whom the interest is transferred
to be substituted in the action or joined with the original party. (20)
SEC. 20. Action on contractual money claims. - When the action
is for recovery of money arising from contract, express or implied, and
the defendant dies before entry of final judgment in the court in which the
action was pending at the time of such death, it shall not be dismissed
393
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
but shall instead be allowed to continue until entry of final judgment. A
favorablejudgment obtained by the plaintiff therein shall be enforced in
the manner especially provided in these Rules for prosecuting claims
against the estate of a deceased person. (21a)
SEC. 21. Indigent party. - A party may be authorized to litigate
his action, claim or defense as an indigent if the court, upon an ex parte
application and hearing, is satisfied that the party is one who has no
money or property sufficient and available for food, shelter and basic
necessitiesfor himself and his family.
Such authority shall include an exemption from payment of docket
and other lawful fees, and of transcripts of stenographic notes which
the court may order to be furnished him. The amount of the docket and
other lawful fees which the indigent was exempted from paying shall be
a lien on any judgment rendered in the case favorable to the indigent,
unless the court otherwise provides. · ·
Any adverse party may contest the grant of such authority at any
time before judgment is rendered by the trial court. If the court should
determine after hearing that the party declared as an indigent is in fact
a person with sufficient income or property,the proper docket and other
lawful fees shall be assessed and collected by the clerk of court. If
payment is not made within the time fixed by the court, execution shall
issue or the payment thereof, without prejudice to such other sanctions
as the court may impose. (22a)
SEC. 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
through a representative duly designated by him. (23a) · used in these Rules shall include Metropolitan Trial Courts,.Municipal
Rule4
VENUE OF ACTIONS
.
SECTION 1. Venue of real actions. - Actions affecting title to or
possessionof 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)
394
APPENDIX A
RULES OF CIVIL PROCEDURE
SEC. 2. Venue of personal actions. - All other actions may be
commenced and tried where the plaintiff 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)
SEC. 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)
SEC. 4. When Rufe not applicable. - This Rule shall not apply -
(a) In those cases where a specific rule or law provides
otherwise; or
(b) Where the parties have validly agreed in writing before
the filing of the action on the exclusive venue thereof. (3a, Sa)
Rule 5
UNIFORM PROCEDURE IN. TRIAL COURTS
SECTION 1. Uniform procedure. - The procedure in the Muni-
cipal 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)
SEC. 2. Meaning of terms. - The term "Municipal Trial Courts" as
Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial
Courts. (1a)
PROCEDURE IN REGIONAL TRIAL COURTS
Rule6
KINDS OF PLEADINGS
SECTION 1. Pleadings defined. - Pleadings are the written state-
ments of the respective claims and defenses of the parties submitted
to the court for appropriate judgment. (1 a)
395
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. 2. Pleadings allowed. - The claims of a party are asserted
in a complaint, counterclaim, cross-claim, third (fourth, etc.)-party
complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the pleading
asserting a claim against him.
An answer may be responded to by a reply. (n)
SEC. 3. Complaint. - The complaint is the pleading alleging the
plaintiffs cause or causes of action. The names and residences of the
plaintiff and defendant must be stated in the complaint. (3a)
SEC. 4. Answer. -An answer is a pleading in which a defending
party sets forth his defenses. (4a)
SEC. 5. Defenses. - Defenses may either be negative or affir-
mative. ·
(a) A negative defense is the specific denial of the material
fact or facts alleged in the pleading of the claimant essential to his
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. 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. (5a)
SEC. 6. Counterclaim. - A counterclaim is any claim which a
defending party may have against an opposing party. (6a)
SEC. 7. Compulsory counterclaim. -A compulsory counterclaim
is one which, being cognizable by the regular courts of justice, arises
out of or is connected with the transaction or occurrence constituting
the subject matter of the opposing party's claim and does not require for
its adjudication the presence of third parties of whom the court cannot
acquire jurisdiction. Such a counterclaim must be within the jurisdiction
of the court both as to the amount and the nature thereof, except that in
an original action before the Regional Trial Court, the counterclaim may
be considered compulsory regardless of the amount. (n)
SEC. 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
396
APPEMDIXA
RULES OF CIVIL PROCEDURE
subject matter either of the original action or of a counterclaim therein.
Such cross-claim may include a claim that the party against whom it
Is asserted is or may be liable to the cross-claimant for all or part of a
claim asserted in the action against the cross-claimant. (7)
SEC. 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. (n)
SEC. 10. Reply.· - 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 by way of defense in the answer and thereby join or make issue
as to such new matters. If a party does not file such reply, all the new
matters alleged in the answer are deemed controverted.
If the plaintiff wishes to interposeany claims arising out of the new
matters so alleged, such claims shall be set forth in an amended or
supplemental complaint. (11)
SEC. 11. Third, (fourth, etc.)-party complaint. - A third (fourth,
etc. )-party complaint is a claim that a defending party may, with leave
· *Supreme Court A.M. No. 99-2-04-SC (In Re: Dispens~ng with Rejoinder)
effective March 15, 1999 provides that [h]enceforth, upon the filing of a Reply (when
uired) no REJOINDER shall be required by the Court. Instead, th_e Court shall
:::olve either to (a) giue due course to the petition and either consider ~e cru:e
submitted for decision based on the pleadings or req~ the parties to submit then
respective memoranda; or (b) deny or dismiss th: petition, as th~ case may~-
The Memoranda of the parties when reqwred shall contain the f~lloWlllg:
(a) A "Statement of the Case," which is a clear ~d concise statement
of the nature of the action; a summary of the proceedings; the ~alleng~
· · esoluti"on or order of the court below; the nature of the Judgment;
d ecision, r , · f th f the
and any other matters necessary to an understanding o e nature o
controversy; .
(b) A "Statement of the ~acts," whi_ch is a clear and eoncise statement
in a narrative form of the established facts, .
(c) A "Statement of the Issues," which~ a_clear and concise statement
of the issues submitted to the Court for resolution, . . f th
(d) The "Argument," _which is a clear and concise presentation o e
ar ment in support of each issue; and . .
\ gu (e) The "Relief,~ which is a specification of the order or Judgment which
. No new ~ssues may b~ raided i~
previous pleadmgs but not m~lu f th
u:
the part~ seeks to obtain._sed b a art in the Memorandum. Issues raised in
M!morandum shall be deemed waived or
rties' previous pleadings, the Memoranda
b ing a summation o e pa ..
a an d one d . Bei . he Court in deciding or resolving the petition.
alone may be considered by t
397
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
A third-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, subroga-
tion or any other relief, in respect of his opponent's claim. (12a)
SEC. 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 detennination of a counterclaim or cross-claim,
the court shall order them to be brought in as defendants, if jurisdiction
over them can be obtained: (14) ·
SEC. 13. Answer to third (fourth, etc.)-party complaint. ~ A third
(fourth,· etc.)-party defendant may allege in his answer his defenses,
counterclaims or cross-claims, including such defenses that the third
(tourth, etc.)-party plaintiff may have against the original plaintiffs claim.
In proper cases, he may also assert a counterclaim against the original
plaintiff in respect of the latter's claim against the third-party plaintiff. (n)
Rule7
PARTS 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 subse-
quent ~leadings, it s~all 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. (1a,
2a)
. SE~. 2. · The bo~y. - The body of the pleading sets forth its
desiqnation, the allegations of the party's claims or defenses, the relief
prayed for, and the date of the pleading. (n)
(a) Paragraphs. - The allegations in the body of a pleading
~hall.be divided into _paragraphsso numbered as to be readily
ide~tified, each of which shall contain a statement of a single set
of circumstances so far as that can be done with convenience.
A .par~graph may be referred to by its number in all succeeding
pleadings. (3a)
398
APPENDIX A
RULES OF CIVIL PROCEDURE
Headings. - When two or more causes of action are joined,
the stateme~t 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 paragraphsof the answer are addressed to several
causes of action, they shall be prefaced by words to that effect. (4)
(b) 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. (3a, R6)
(c) Date. - Every pleading shall be dated. (n)
SEC. 3. Signature and address. - Every pleading must be signed
by the party or counsel representing him, stating in either case his
address which should not be a post office box.
The signature of counsel constitutes a certificate by him that he
has read the pleading; that to the best of his knowledge, information,
and belief there is g.ood ground to support it; and that it is not interposed
for delay.
An unsigned pleading producesno legal effect. However, the court
may, in its discretion, allow such deficiency to be remedied if it shall
appear that the same was due to mere inadvertence and not intended
for delay. Counsel who deliberatelyfiles an unsigned pleading, or signs
a pleading in violation of this Rule, or alleges scandalous or indecent
matter therein, or fails to promptly report to the court a change of his
address, shall be subject to appropriate disciplinary action. (Sa)
SEC. 4. Verification. - Except when otherwise specifically
required by law or rule, pleadings need not be under oath, verified or
accompanied by affidavit. (Sa)
A pleading is verified by an affidavit that the affiant has read the
pleading and that the allegations therein are true and correct of his
personal knowledge or based on authentic records.
A pleading required to be verified which contains a verification
based on "information and belief' or upon "knowledge, information and
399
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
belief,· or lacks a proper verification, shall be treated as an unsigned
pleading. (As amended, A.M. No. 00-2-10, May 1, 2000.)
SEC. 5. Certification against forum shopping. - The plaintiff
or principal party shall certify under oath in the complaint ~r ot~er
initiatory pleading asserting a daim for relief, or i~ a sworn certiflcatlon
annexed thereto and simultaneously filed therewith: (a) that he 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 knowledge, no such other action or daim 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 should thereafter learn that the
same or similar action or daim has been tiled or is pending, he shall
report that fact within five (5) days therefrom to the court wherein his
aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other initiatory pleading
but shall be cause for the dismissal of the case without prejudice, unless
otherwise provided, upon motion and after hearing. The submission of
a false certification or non-compliance with any of the undertakings
therein shall constitute indirect contempt of court, without prejudice
to the corresponding administrative and criminal actions. If the acts
of the party or his counsel dearly 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. (n)
RuleB
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 on which the party pleading relies for his claim or
defense, as the case may be, omitting the statement of mere evidentiary
facts. (1)
If a defense relied on is based on law, the pertinent provisions
thereof and their applicability to him shall be clearly and concisely
stated. (n)
400
APPENDIX A
RULES OF CIVIL PROCEDURE
SEC. 2. Alternative causes of action or defenses. - A party may
set forth _two or r:nore 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 th~ alternative a~d 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)
. SEC. 3. Conditions precedent. - In any pleading a general aver-
ment of the performance or occurrence of all conditions precedent shall
be sufficient. (3) ·
SEC. 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)
SEC. 5. Fraud, mistake, condition of the mind. - In all avennents
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. (Sa)
SEC. 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. (6)
SEC. 7. 'Action or.deiense 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 t? be a part_ of the
pleading, or said copy may with like effect be set forth in the pleading. (7)
SEC. a. How to contest such documents. - When an action or
defense is founded upon a written instrument, copied in ~r attac~ed
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,
401
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
and sets forth what he 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. (Ba)
SEC. 9. Official document or act. - In pleading an official. docu-
ment or official act, it is sufficient to aver that the document was issued
or the act done in compliance with law. (9)
SEC. 1 o. Specific denial. - A defendant must speci~ each
material allegation of fact the truth of which he does not admit and,
whenever practicable, shall set forth the substance of the matter~ upon
which he relies to support his denial. Where a defendant desires to
deny only a part of an averrnent, he 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 in the complaint, he shall so state,
and this shall have the effect of a denial. (1 Oa)
SEC. 11. Allegations not specifically denied deemed admitted. -
Material averment in the complaint, other than those as to the amount
of unliquidated damages, shall be deemed admitted when not specifi-
cally denied. Allegations of usury in a complaint to recover usurious
interest are deemed admitted if not denied under oath. (1a, R9)
SEC. 12. 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) days after the service of the pleading upon
him, 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 there-
from. (5, R9)
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
402
APPENDIX A
RULES OF CIVIL PROCEDURE
tor the same cause, or that the action is barred by a prior judgment or
by statute of limitations, the court shall dismiss the claim. (2a)
SEC. 2. Compulsory counterclaim, or cross-claim, not set up
barred. -A compulsory counterclaim, or a cross-claim, not set up shall
be barred. (4a)
SEC. 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 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. (1a, RtB)
(a) Effect of order of default. -A party in default shall be
entitled to :-notice of subsequent proceedings but not to take part
in the trial. (2a, Rt 8)
(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 failure to answer was due to fraud,
accident, mistake or excusable negligence and that he 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. (3a, Rt 8)
(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 answers thus filed and
render judgment upon the evidence presented. (4a, R18)
( d) Extent of relief to be awarded. -A judgment rend~red
against a party in default shall not exceed the amount or be differ-
ent in kind from that prayed for nor award unliquidated damages.
(5a, R18)
(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 or~er the prosecu-
ting attorney to investigate whether or not a collusion between the
403
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
. · ts and if there is no collusion, to intervene for the State
pa rt ies exis , . . f b · t d
in order to see to it that the evidence submitted rs not a nca e .
te« R18)
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
arty. or by correcting a mistake in the name of a party or a mistaken
~r inadequate allegation or description in any other respe~t, so th?t the
actual merits of the controversy may speedily be determined, without
regard to technicalities, and in the most expeditious and inexpensive
manner. (1)
SEC. 2. Amendments as a matter of right. -A party may amend
his pleading once as a matter of right at any time before a responsive
pleading is served or, in the case of a reply, at any time within ten (10)
days after it is served. (2a)
SEC. 3. Amendments by leave of court. - Except as provided in
the next preceding section, substantial amendments may be made only
upon leave of court. But such leave may be refused if it appears to the
court that the motion was made with intent to delay. Orders of the court
upon the matters provided in this section shall be made upon motion
filed in court, and after notice to the adverse party, and an opportunity
to be heard. (3a)
SEC. 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. (4a)
SEC. 5. Amendment to conform to or authorize presentation of
evidence. - When issues not raised by the pleadings are tried with the
express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such amendment
of the pleadings as may be necessary to cause them to conform to
the evidence and to raise these issues may be made upon motion of
any party at any time, even after judgment; but failure to amend does
not affect the result of the trial of these issues. If evidence is objected
404
APPENDIX A
RULES OF CIVIL PROCEDURE
to at the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall
do so with liberality if the presentation of the merits of the action and
the ends of substantial justice will be subserved thereby. The court may
grant a continuance to enable the amendment to be made. (5a)
SEC. 6. Supplemental pleadings. - Upon motion of a party the
court may, upon reasonable notice and upon such terms as are just.
permit him 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) days from notice of the order admrtting the
supplemental pleading. (6a)
SEC. 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. (la) · ·
I .
SEC. 8. Effect of amended pleadings. - An amended pleading
supersedes the pleading that it amends. However, admissions in super-
seded pleadings may be received in evidence against the pleader; and
claims or defenses alleged therein not incorporated in the amended
pleading shall be deemed waived. (n)
\. . .
Rule 11
WHEN TO FILE RESPONSIVE PLEADINGS
:- · SECTION 1. Answer to the complaint. - The defendant shall
file his answer to the complaint within fifteen (15) days after service of
summons,· unless a different period is fixed by the court. (1 a)
SEC. 2. Answer of a defendant foreign private juridical entity. -
Where the defendant is a foreign private juridical entity and service
of summons is made on the government official designated by law to
receive the same, the answer shall be filed within thirty (30) days after
receipt of summons by such entity. (2a)
SEC. 3. Answer to amended complaint. - Where the plaintiff
files an amended complaint as a matter of right, the defendant shall
answer the same within fifteen (15) days after being served with a copy
thereof.
405
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW . RULES OF CIVIL PROCEDURE
Where its filing is not a matter of right, the defendant shall answer
the amended complaint within ten (10) days from notice of the order
admittingthe 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,
amendedcross-claim, amended third (fourth, etc.)-party complaint, and
amended complaint-in-intervention.(3a)
SEC. 4. Answer to counterclaim or cross-claim. -A"counterclaim
or cross-claim must be answered within ten (10) days from service. (4)
, I, '
SEC. 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. (Sa)
SEC. 6. Reply. -A reply may be filed within ten (10) days from
service of the pleading responded to. (6) : -, , .
SEC. 7. Answer to supplemental complaint. - A supplemental
complaint may be answeredwithin ten (10) 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. (n)
SEC._ 8. Existing counterclaim or cross-claim. - A compulsory
counterclaimor a cross-claim that a defending party has at the time he
files his answer shall be contained therein. (Ba, R6)
SEC. 9. Counterclaim or cross-claim arising after answer. - A
counterclaim or a cross-claim which either matured or was acquired
by a party after serving his pleading may, with the permission of the
court, be presented as a counterclaim or a cross-claim by supplemental
pleading before judgment. (9, R6) · ·
. SEC.10. Omitted counterclaim or cross-claim. -When a pleader
~ails to set up a counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when justice requires, he may,
by leav~ of court, set up the counterclaim or cross-claim by amendment
beforeJudgment.(3a, R9)
SEC.11. Extension of time to plead. - Upon motion and on such
~erms as may be just, the court may extend the time to plead provided
in these Rules.
406
APPENDIX A
!he court ·may also, upon like terms, allow an answer or other
pleading to be file_d after the time fixed by these Rules. (7)
Rule 12
BILL OF PARTICULARS
SECTION 1. When applied for; purpose. - Before responding
to a pleading, a party may move for a definite statement or for a bill of
particulars of any matter which is not averred with sufficient definiteness
or particularity to enable him properly to prepare his responsive
pleading. If the pleading is a reply, the motion must be filed within ten
(10) days frorn'service thereof. Such motion shall point out the defects
complained of, the paragraphs wherein they are contained, and the
details desired. (1 a) )
SEC. 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. (n)
SEC. 3. Complience with order. - If the motion is granted, either
in whole or in part, the compliance therewith must be effected within ten
(10) 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. (n)
. SEC. 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 'orthe portions thereof to which the order
wi:is directed or make such other order as it deems just. (1 [c]a)
SEC. 5. Stay of period to file responsive pleading. - After service
of the bill of particulars or of a more definite pleading, or after notice of
denial of his motion, the moving party may file his responsive pleading
within the period to which he was entitled at the time of filing his motion,
which shall not be less than five (5) days in any event. (1[b]a)
., , . SEC. 6. Bill a part of pleading. - A bill of particulars becomes part
of the pleading for which it_ is intended. (1 [a]a)
407
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Rule 13
FILING AND SERVICE OF PLEADINGS, JUDGMENTS
AND OTHER PAPERS
SECTION 1. Coverage. - This Rule shall govern the filing of all
pleadings and other papers, as well as the service thereof, except those
for which a different mode of service is prescribed. (n)
SEC. 2. Filing and service, defined. - Filing i.s the act of present-
ing the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading
or paper concerned. If any party has appeared by counsel, service upon
him shall be made upon his counsel or one of them, unless service upon
the party himself is ordered by the court. Where one counsel appears
for several parties, he shall only be entitled to one copy of any paper
served upon him by the opposite side. (2a) · ·
SEC. 3. Manner of filing. - The filing of pleadings, appearances,'
motions, notices, orders, judgments and all other papers shall be made
by presenting the original copies thereof, plainly indicated as such,
personally to the clerk of court or by sending them by registered mail. In
the first case, the clerk of court shall endorse on the pleading the date
and hour of filing. In the second case, the date of the mailing of motions,·
pleadings, or any other papers or payments or deposits, as shown by.
the post office stamp on the envelope or the registry receipt, shall be
considered as the date of their filing, payment, or deposit in court. The
envelope shall be attached to the record of the case. (1a)
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. (2a).
SEC. 5. Modes of service. - Service of pleadings, motions}
notices, orders, judgments and other papers shall be made . either
personally or by mail. (3a) ·'
SEC. 6. Personal service. - Service of the papers may be made
?~ delivering personally a copy to the party or his counsel, or by. leaving
rt rn his office with his clerk or with a person having charge thereof. If
no person is found in his office, or his office is not known, or he has
408
APPENDIX A
RULES OF CIVIL PROCEDURE
no office, then by leaving the copy, between the hours of eight in the
morning and six in the evening, at the party's or counsel's residence,
if known, with a person of sufficient age and discretion then residing
therein. (4a)
SEC. 7. Service by mail. - Service by registered mail shall be
made by depositing the copy in the post office, in a sealed envelope,
plainly addressed to the party or his counsel at his office, if known,
otherwise at. his residence, if known, with postage fully pre-paid, and
with instructions to the postmasterto return the mail to the sender after
ten (10) days if undelivered. If no registry service is available in the
locality of either the sender or the addressee, service may be done by
ordinary mail. (5a; As amended by En Banc Resolution, Feb. 17, 1998.)
· · SEC. 8. Substituted service. - If service of pleadings, motions,
notices, resolutions, orders and other papers cannot be made under the
twc:i preceding sections, the office and place of residence of the party
or his 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.
(6a)
SEC. 9. Service ofjudgments, final orders or resolutions. - Judg-
ments final orders or resolutions shall be served either personally or
by reqistered mail. When a party summoned by publication has failed
to 'appear in·the action, judgments, final orders or resolutions against
him shall be served upon him also by publication at the expense of the
prevailing party. (la)
SEC. 1 O. Completeness of service. - Personal service is com-
plete upon actual delivery. Service by ordinary mail is complete u~on
the expiration of ten (10) days after mailing, unless the. court othe_rwrse
provides. Service by registered mail is complete upon actual receipt by
the addressee, or after five (5) days from the date he received the first
notice of the postmaster,whichever date is earlier. (Ba)
. · SEC. 11. Priorities in modes of service and filing. - Whenever
practicable, the service and filing of pleadings and other pap~rs shall
be done personally. Except with respect to papers ~man?trng ~rom
the court a resort to other modes must be accompanied by a wntten
explanation why the service or filing was not done personally.A violation
of this Rule may be cause to consider the paper as not filed. (n)
409
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. 12. Proof of filing. - The filing of a pleading or paper shall
be proved by its existence in the record of the case. If it is not in the
record but is claimed to have been filed personally, the filing shall be
proved by the written or stamped acknowledgmen~ of its filin~ by the
clerk of court on a copy of the same; if filed by registered mail, by the
registry receipt and by the affidavit of the person who did the mailing,
containing a full statement of the date and place of depositing the m~il
in the post office in a sealed envelope addressed to the court, wrth
postage fully prepaid, and with instructions to the postmaster to return
the mail to the sender after ten (10) days if not delivered. (n)
SEC. 13. Proof of service. - Proof of personal service shall con-
sist of a written admission of the party served, or the official return of the
server, or the affidavit of the party serving, containing a full statement of
the date, place and manner of service. If the service is by ordinary mail,
proof thereof shall consist of an affidavit of the person mailing of facts
showing compliance with Section 7 of this Rule. If service is made, by
registered mail, proof shall be made by such affidavit and the registry
receipt issued by the mailing office. The registry return card shall be
filed immediately upon its receipt by the sender, or in lieu thereof the
unclaimed letter together with the certified or sworn copy of the notice
given by the postmaster to the addressee. (10a)
SEC. 14. Notice of /is pendens. - In an action affecting the title or
the right of possession of real property, the plaintiff and the defendant,
when affirmative relief is claimed in his answer, may record in the office,
of the registry of deeds of the province in which the property is situated a
notice of the pend ency of the action. Said notice shall contain the names
of the parties and the object of the action or defense, and a description
of the property in that province affected thereby. Only from the time of
filing such notice for record shall a purchaser, or encumbrancer of ttie
property affected thereby, be deemed to have constructive notice of the
pendency of the action, and only of its pendency against the parties
designated by their real names.
The notice of /is pendens hereinabcive mentioned may be
cancelled only upon order of the court, after proper showing that the
notice is for the purpose of molesting the adverse party, or that it is
not necessary to protect the rights of the party who caused it to be
recorded. (24a, R14)
410
APPENDIX A
RULES OF CIVIL PROCEDURE
Rule 14
SUMMONS
SECTION 1. Clerk to issue summons. - Upon the filing of the
complaint and the payment of the requisite legal fees, the clerk of court
shall forthwith issue the corresponding summons to the defendants.
(1a)
SEC. 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)
a direction that the defendant answer within the time fixed by these
Rules; (c) 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 /item, if any, shall be attached to the original and each copy of the
summons. (3a) • ·
SEC. 3. By whom served. - The summons may be served by the
sheriff, his deputy, or other proper court officer, or for justifiable reasons
by any suitable person authorized by the court issuing the summons.
(5a)
SEC. 4. Return. - When the service has been completed, the
server shall, within five (5) days therefrom, serve a copy of the return,
personally or by registered mail, to the plaintiff's couns~I, and shall
return the summons to the clerk who issued it, accompanied by proof
of service. (6a)
SEC. 5: Issuance of alias summons. - If a summons is returned
without being served on any or all of the d~f~ndants, the serv~r shall
also serve a copy of the return on the plarntrff's counsel, stating the
reasons for the failure of service, within five (5) days therefrom. In such
a case, or if the summons has been lost, the clerk, on demand of the
plaintiff, may issue an alias summons. (4a)
SEC. 6. Service in person on defendant. - Whenever practicable,
the summons shall be served by handing a cop~ there~f to the def~n-
dant in person, or, if he refuses to receive and srgn for rt, by tendering
it to him. (la)
SEC 7 Substituted service. - If, for justifiable ~use~, the
defendantcannot be served within a reasonable time as provided rn the
411
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
preceding section, service may be effected: (a) by leaving copies of the
summons at the defendant's residence with some person of suitable
age and discretion then residing therein, or (b) by leaving the copies
at defendant's office or regular place of business with some competent
person in charge thereof. (Ba)
SEC. 8. 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 brought. (9a)
SEC. 9. Service upon prisoners. - When the defendant is a
prisoner confined in a jail or institution, service shall be effected upon
him by the officer having the management of such jail or institution who
is deemed deputized as a special sheriff for said purpose. (12a)
SEC. 10. Service upon minors and incompetents. - When the
defendant is a minor, insane or otherwise an incompetent, service shall
be made upon him personally and on his legal guardian if he has one, or
if none, upon his guardian ad /item whose appointment shall be applied
for by the plaintiff. In the case of a minor, service may also be made on
his father or mother. (10a, 11a) · Any order granting such leave shall specify a reasonable time, which
SEC. 11. 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, managi~g partner, general manager,
corporate secretary, treasurer, or in-house counsel. (13a)
SEC. 12. Service upon foreign privete juridical entity. - When
the defendant is a foreign private juridical entity which has transacted
bus!ness in ~he Philippines, service may be made on its resident agent
designated in accordance with law for that purpose, or, if there be no
such agent, ?n the government official designated by law to that effect,
or on any of its officers or agents within the Philippines. (14a) .
SEC. 13. Service upon public corporations. - When the defen-
da~t _is the Republic of the Philippines, service may be effected on the
Solicitor General; in case of a province, city or rrumtctpallty,or like public
412
APPENDIX A
RULES OF CIVIL PROCEDURE
corporations, service may be ·effectedon its executive head or on such
other officer ?r officers as the law or the court may direct. (15)
SEC. 14. 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 whereabouts are unknown
and cannot be ascertained by diligent inquiry, service may, by leave of
c?urt, ~e effect.ad upon him by publication in a newspaper of general
circulation and In such places and for such time as the court may order.
(16a)
SEC. 15. 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 excludingthe 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 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.
shall not be less than sixty (60) days after notice, within which the
defendant must answer. (17a)
SEC. 16. 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. (18a)
SEC. 17. Leave of court. -Any application to the court under this
Rule for leave to effect service in any manner for which leave of court is
necessary shall be made by motion in writing, supported by affidavit of
the plaintiff or some person on his behalf, setting forth the grounds for
the application. (19)
SEC. 18. Proof of setvice. - 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
413

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
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 deputy. (20)
SEC. 19. Proof of service by publication. - If the service has
been made by publication, service may be proved by the affidavit of
the printer, his foreman or principal clerk, or of the 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 last known address.
(21)
SEC. 20. 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
ofjurisdiction over the person of the defendant shall not be deemed a
voluntary appearance. (23a)
Rule 15
MOTIONS
SECTION 1. Motion defined. -A motion is an application for relief
other than by a pleading. (1a)
SEC. 2. Motions must be in writing. - All motions shall be in
writing except those made in open court or in the course of a hearing
or trial. (2a)
SEC. 3. Contents. - A motion shall state the relief sought to
be obtained and the grounds upon which it is based, and if required
by these Rules or necessary to prove facts alleged therein, shall be,
accompanied by supporting affidavits and other papers. (3a)
SEC. 4. Hearing of motion. - Except for motions which the court
may act upon without prejudicing the rights of the adverse party, every
written motion shall be set for hearing by the applicant.
Every written motion required to be heard and the notice of the
hearing thereof shall be served in such a manner as to ensure its receipt
by the other party at least three (3) days before the date of hearing,
unless the court for good cause sets the hearing on shorter notice. (4a)
414
APPENDIX A
RULES OF CIVIL PROCEDURE
SEC. 5. Notice of hearing. - The notice of hearing shall be
addressed to all parties concerned, and shall specify the time and date
of the hearing which must not be later than ten (10) days after the filing
of the motion. (5a)
SEC. 6. Proof of service necessary. - No written motion set
for hearing shall be acted upon by the court without proof of service
thereof. (6a)
SEC. 7. Motion day. - Except for motions requiring immediate
action, all motions shall be scheduled for hearing on Friday afternoons,
or if Friday is a non-working day, in the afternoon of the next working
day. (7a)
SEC. 8. Omnibus motion. - Subject to the provisions of Section 1
of Rule 9, a motion attacking a pleading, order, judgment, or proceeding
shall include all objections then available, and all objections not so
included shall be deemed waived. (Ba)
SEC. 9. Motion for leave. - A motion for leave to file a pleading
or motion shall be accompanied by the pleading or motion sought to be
admitted. (n)
SEC. 10. Form. - The Rules applicable to pleadings shall apply
to written motions so far as concerns caption, designation, signature,
'!
and other matters of form. (9a)
Rule 16
MOTION TO DISMISS
SECTION 1. Grounds. - Within the time for but before filing
the answer to the complaint or pleading asserting a claim, a motion to
dismiss may be made on any of the following grounds:
(a) That the court has no jurisdiction over the person of the
defending party;
(b) That the court has no jurisdiction over the subject
matter of the claim;
(c) That venue Is Improperly laid;
(d) That the plaintiff has no legal capacity to sue;
( e) That there Is another action pending between the same
parties for the same cause;
415
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
APPENDIXA ·
RULES OF CIVIL PROCEDURE
(f) That the cause of action is barred by a prior judgment
or by the statute of limitations;
in this Rule may be pleaded as an affirmative defense in the answer
(g) That the pleading asserting the claim states no cau~e and, in the discretion of the court, a preliminary hearing may be had
of action; thereon as if a motion to dismiss had been filed. (Sa)

(h) That the claim or demand set forth in the plaintiffs The dismissal of the complaint under this section shall be without
pleading has been paid, waived, abandoned, or otherwise extin- prejudice to the prosecution in the same or separate action of a coun-
guished; terclaim pleaded in the answer. (n)

(i) That the claim on which the action is founded is unen-

forceable under the provisions of the statute of frauds; and Rule 17

0) That a condition precedent for filing the claim
been complied with. (1a)
SEC. 2. Hearing of motion. - At the hearing of the motion, the
parties shall submit their arguments on the questions of law and their
evidence on the questions of fact involved except those not available
at that time. Should the case go to trial, the evidence presented during
the hearing shall automatically be part of the evidence of the party
presenting the same. (n)
SEC. 3. Resolution of motion. -After the hearing, the court may
dismiss the action or claim, deny the motion, or order the amendment
of the pleading.
The court shall not defer the resolution of the motion for the reason
that the ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the
reasons therefor. (3a) · The dismissal shall be without prejudice to the right of the defendant
SEC. 4. Time to plead. - If the motion is denied, the movant shall
file his answer within the balance of the period prescribed by Rule 11
to which he was entitled at the time of serving his motion, but not less
than five (5) days in any event, computed from his receipt of the notice
of the denial. If the pleading is ordered to be amended, he shall file his
answer within the period prescribed by Rule 11 counted from service of
the amended pleading, unless the court provides a longer period. (4a)
SEC. 5. Effect of dismissal. - Subject to the right of appeal, an
order granting a motion to dismiss based on paragraphs (f), {h) and (i)
of Section 1 hereof shall bar the refiling of the same action or claim. (n)
SEC. 6. Pleading grounds as affirmative defenses. - If no motion
to dismiss has been filed, any of the grounds for dismissal provided for
has not DISMISSAL OF ACTIONS
SECTION 1. Dismissal upon notice by plaintiff. - A complaint
may be dismissed by the plaintiff by filing a notice of dismissal at any
time before service of the answer or of a motion for summary judgment.
Upon such notice being filed, the court shall issue an order confirming
the dismissal. Unless otherwise stated in the notice, the dismissal Is
without prejudice,· except that a notice operates as - an adjudication
upon the merits when filed by a plaintiff who has once dismissed in a
competent court an action based on or including the same claim. (1a)
SEC. 2. Dismissal upon motion of plaintiff. - Except as provided
in the preceding section, a complaint shall not be dismissed at the
plaintiff's instance save upon approval of the court and upon such terms
and conditions as the court deems proper. If a counterclaim has been
pleaded by a defendant prior to the service upon him of the plaintiff's
motion for dismissal, the dismissal shall be limited to the complaint.
to prosecute his counterclaim in a separate action unless within fifteen
(15) days from notice of the motion he manifests his. preference to
have his counterclaim resolved in the same action. Unless otherwise
specified in the order, a dismissal under this paragraph shall be without
prejudice. A class suit shall not be dismissed or compromised without
the approval of the court. (2a)
SEC. 3. Dismissal due to fault of plaintiff. - If, for no justifiable
cause, the plaintiff fails to appear on the date of the presentation of
his evidence in chief on the complaint, or to prosecute his action for
'an unreasonable length of time, or to comply with these Rules or any
order of the court, the complaint may be dismissed upon motion of the
defendant or upon the .court's own motion, without prejudice to the
right of the defendant to prosecute his counterclaim in the same or in a

416 417
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW APPENDIX A
RULES OF Cl /IL PROCEDURE

separate action. This dismissal shall have the effect of an adjudication

SEC. 3. Notice of pre-fr/al. - The notice of pre-trial shall be
upon the merits, unless otherwise declared by the court. (3a)
served on counsel, or on the party who has no counsel. The counsel
SEC. 4. Dismissal of counterclaim, cross-claim, or third-party served with such notice is charged with the duty or notifying the party
complaint. - The provisions of this Rule shall apply t?
the dismissal represented by him. (n)
of any counterclaim, cross-claim, or third-party complaint. A voluntary SEC. 4. Appearance of parties. - It shall be the duty of the parties
dismissal by the claimant by notice as in Section 1 of this Rule.' shall be and their counsel to appear at the pre-trial. The non-appearance of a
made before a responsive pleading or a motion for summary Judgment party may be excused only if a valid cause is shown therefor or if a
is served or, if there is none, before the introduction of evidence at the representative shall appear in his behalf fully authorized in wming to
trial or hearing. (4a) enter into an amicable settlement. to submit to alternative modes of
dispute resolution, and to enter into stipulations or admissions or facts
Rule 18 and of documents. (n)

PRE-TRIAL SEC. 5. Effect of failure to appeat. - The failure of the plainttff

SECTION 1. When conducted. -After the last pleading has been
served and filed, it shall be the duty of the plaintiff to promptly move
ex parte that the case be set for pre-trial. (Sa, R20)
SEC. 2. Nature and purpose. - The pre-trial is mandatory. The
court shall consider:
(a) The possibility of an amicable settlement or of a sub-
mission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments
pleadings;
(d) The possibility of obtaining stipulations or admissions
of facts and of documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to
a commissioner;
(g) The propriety of rendering judgment on the pleadings,
or summary judgment, or of dismissing the action should a valid
ground therefor be found to exist;
(h) The advisability or necessity of suspending
proceedings; and
{i) Such other matters as may aid in the prompt disposition
of the action. (1a, R20)
418
to appear when so required pursuant to the next preceding section
shall be cause for 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 shall be cause to allow the plaintiff to present
his evidence ex parte and the court to render judgment on the basis
thereof. (2a, R20)
SEC. 6. Pre-trial brief. - The parties shall file with the court and
serve on the adverse party, in such manner as shall ensure their receipt
thereof at least three (3) days before the date of the pre-trial. their
respective pre-trial briefs which shall contain, among others:
{a) A statement of their willingness to enter into amicable
to the
settlement or alternative modes of dispute resolution. indicating
the desired tenns thereof;
(b) A summary of admitted facts and proposed stipulation
of facts;
(c) The issues to be tried or resolved;
{d) The documents or exhibits to be presented, stating the
purpose thereof;
(e) A manifestation of their having availed or their intention
to avail themselves of discovery procedures or referral to com-
missioners; and
(f) The number and names of the witnesses, and the sub
the
stance of their respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure
to appear at the pre-trial. (n)
419

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. 7. Record of pre-trial. - The proceedings in the pre-trial
shall be recorded. Upon the termination thereof, the court shall issue an
order which shall recite in detail the matters taken up in the conference,
the action taken thereon, the amendments allowed to the pleadings,
and the agreements or admissions made by the parties as to any of
the matters considered. Should the action proceed to trial, the order
shall explicitly define and limit the issues to be tried. The contents of the
order shall control the subsequent course of the action, unless modified
before trial to prevent manifest injustice. (Sa, R20)
Rule 19
INTERVENTION
SECTION 1. Who may intervene. - A person.who has a legal
interest in the matter in '•litigation, or in the success of either 'of the
parties, or an interest against both, or is so situated as 'tci be adversely
affected by a distribution or other disposition of property in the custody
of the court or of an officer thereof may, with leave of court, be allowed
to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights
of the original parties, and whether or not the intervenor's rights may be
fully protected in a separate proceeding. (2[a], [b]a, R12) .
SEC. 2. Time to intervene. - The motion to intervene may· be filed
at any time before rendition of judgment by the trial court. A copy of the
pleading-in-intervention shall be attached to the motion and served on
the original parties. (n)
SEC. 3. Pleadings-in-intervention.· - The intervenor shall file a
complaint-in-intervention if he asserts a claim against either or all of
the original parties, or an answer-in-intervention if he unites with the
defending party in resisting a claim against the latter, '(2[c]a, R12)
SEC. 4. Answer to complaint-in-intervention. - The answer to
the complaint-in-intervention shall be filed within fifteen ( 15) days from
notice of the order admitting the same, unless a different period is fixed
by the court. (2[d]a, R12)
Rule 20
CALENDAR OF CASES
SECTION 1. Calendar of cases. - The clerk of court, under the
direct supervision of the judge, shall keep a calendar of cases for pre-
420
- ··-
-----------••w-aa:,~ :W. IJJr::::::::e,
JJf
APPENDIX A
RULES OF CIVIL PROCEDURE
trial, for. trial, t~ose 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. (1a, R22)
. SEC. 2. Assignment of cases. - The assignment of cases to the
d1ff~rent 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. (la, R22)
Rule 21
SUBPOENA
SECTION 1. Subpoena and subpoena duces tecum. - Subpoena
is a process directed to a person requiring him to attend and to testify
at the hearing or the trial of an action, or at any investigation conducted
by competent authority, or for the taking of his deposition. It may also
require him to bring with him any books, documents, or other things
under his control, in which case it is called a subpoena duces tecum.
(1a, R23)
SEC. 2. By whom issued. - The subpoena may be issued by -
. (a) the court before whom the witness is required to attend;
(b) the court of the place where the deposition is to be
taken;
• r •.
.: (c) the officer or body authorized by law to do so in con-
nection with investigations conducted by said officer or body; or
(d) any Justice of the Supreme Court or of the Court of
Appeals in any case or investigation pending within the Philippines.
When application for a subpoena to a prisoner is made, the judge
or officer shall examine and study carefully such application to deter-
mine· whether the same is made for a valid purpose. .·
No prisoner sentenced to death, reclusion perpetua or life impri-
sonment and who is confined in any penal institution shall be brought
outside the said penal institution for appearance or attendance in any
court unless authorized by the Supreme Court. (2a, R23)
421
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. 3. Fonn and contents. - A subpoena _shall state th~ name
of the court and the title of the action or investigation •. shall be directed
to the person whose attendance is requi_red, and m the case.
subpoena duces tecum, it shall also contain a r~asonable descrlptlon
of the books, documents or things demanded which must appear to the
court prims facie relevant. (3a, R23)
SEC. 4. Quashing a subpoena. - The court may quash a
subpoena duces tecum upon motion pr~mpt!Y. made and, m any
event, at or before the time specified therein 1f it rs unreaso~able and
oppressive, or the relevancy of the books, documents o~ t~rngs do?s
not appear, or if the person in whose behalf the subpoena rs issued fails
to advance the reasonable cost of the production thereof.
The court may quash a subpoena ad testificandum on the ground
that the witness is not bound thereby. In either case, the subpoena
may be quashed on the ground that the witness fees and kilometrage
allowed by these Rules were not tendered when the subpoena was
served. (4a, R23)
SEC. 5. Subpoena for depositions.- Proof of service of a notice
to take a deposition, as provided in Sections 15 and 25 of Rule 23, shall
constitute sufficient authorization for the issuance of subpoenas for the
persons named in said notice by the clerk of the court of the place in
which the deposition is to be taken. The clerk shall not, however, issue
a subpoena duces tecum to any such person without an order of the
court. (Sa, R23)
SEC. 6. Service. - Service of a subpoena shall be made in the
same manner as personal or substituted service of summons. The
original shall be exhibited and a copy thereof delivered to the person on
whom it is served, tendering to him the fees for one day's attendance
and the kilometrage allowed by these Rules, except that. when· a
subpoena is issued by or on behalf of the Republic of the Philippines
or an officer or agency thereof, the tender need not be made. The
service must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the subpoena is
duces tecum, the reasonable cost of producing the books documents
or things demanded shall also be tendered. (6a, R23) ' after such interruption shall start to run on the day after notice of the
SEC. 7. Personal appearance in court. - A person present in
court before a judicial officer may be required to testify as if he were in
attendance upon a subpoena issued by such court or officer. (10, R23)
422
APPENDIX A
RULES OF CIVIL PROCEDURE
ot a
SEC. 8. Compelling attendance. - 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 deputy, to arrest the witness and bring
him before the court or officer where his attendance is required, and the
cost of such warrant and seizure of such witness shall be paid by the
witness if the court issuing it shall determine that his failure to answer
the subpoena was willful and without just excuse. (11, R23)
SEC. 9. Contempt. - Failure by any person without adequate
cause to obey a subpoena served upon him 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. (12a, R23)
SEC. 10. Exceptions. - The provisions of Sections 8 and 9 of this
Rule shall not apply to a witness who resides more than one hundred
(100) kilometers from his residence to the place where ~e is to tes!ify_ by
the ordinary course of travel, or to a detention prisoner if no perrmssron
of the court in which his case is pending was obtained. (9a, R23)
Rule 22
COMPUTATION OF TIME
1
-: • SECTION · 1. How to compute time. - In computing any period
of time prescribed or allowed by these Rules, or by order of the court,
or. by. any applicable statute, the day of the act or event from which the
designated period of time begins to run is to be excluded and the date
of performance included. If the last day of the period, as thus computed,
falls on a Saturday, a Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next working day. (n)
· SEC. 2. Effect of interruption. - Should an act be done which
effectively interrupts the running of the period, the allowable period
cessation of the cause thereof.
The day of the act that caused the interruption shall be excluded
in the computation of the period. (n)
423
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
the use by an adverse party of a deposition as described in paragraph
(b) of Section 4 of this Rule. (B, R24)
SEC. 9. Rebutting deposition. - At the trial or hearing, any party
may rebut any relevant evidence contained in a deposition whether
introduced by him or by any other party. (9, R24)
SEC. 1 O. Persons before whom depositions may be taken within
the Philippines. - Within the Philippines, depositions may be taken
before any judge, notary public, or the person referred to in Section 14
hereof. (10a, R24)
SEC. 11. Persons before whom depositions may be taken in
foreign countries. - In a foreign state or country, depositions may be
taken:
(a) on notice before a secretary of embassy or legation,
consul general, consul, vice-consul, or consular agent of the
Republic of the Philippines; or
(b) before such person or officer as may be appointed by
commission or under letters rogatory; or (c) the person referred to
in Section 14 hereof. (11a, R24)
SEC. 12. Commission or letters rogatory. - A commission or
letters rogatory shall be issued only when necessary or convenient,
on application and notice, and on such terms and with such direction
as are just and appropriate. Officers may be designated in notices or
commissions either by name or descriptive title and letters rogatory
may be addressed to the appropriate judicial authority in the foreign
country. (12a, R24)
SEC. 13. Disqualification by interest. - No deposition shall
be taken before a person who is 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. (13a, R24)
SEC. 14. Stipulations regarding taking of depositions. - 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. (14a, R24)
SEC. 15. Deposition upon oral examination; notice; time and
place. -A party desiring to take the deposition of any person upon oral
426
APPENDIX A
RULES OF CIVIL PROCEDURE
examination shall give reasonable notice in writing to every other party
to the action. The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined,
if known, and if the name is not known, a general description sufficient
to identify him or the particular class or group to which he belongs. On
motion of any party upon whom the notice is served, the court may for
cause shown enlarge or shorten the time. (15, R24)
SEC. 16. Orders for the protection of parties and deponents. -
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 an order that the deposition shall not be taken, or that it
may be taken only at some designated place other than that stated in
the notice, or that it may be taken only on written interrogatories, or
that certain matters shall not be inquired into, or that the scope of the
examination shall be held with no one present except the parties to
the action and their officers or counsel, or that after being sealed the
deposition shall be opened only by order of the court, or that secret
processes, developments, or research need not be disclosed, or that
the parties shall simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court; or
the court may make any other order which justice requires to protect
the party or witness from annoyance, embarrassment, or oppression.
(16a, R24}
SEC. 17. Record of examination;oath; objections.- The officer
before whom the deposition is to be taken shall put the witness on oath
and shall personally, or by some one acting u~der his directio~ and
in his presence, record the testimony of the ~1tness. The tes~mony
shall be taken stenographically unless the parties agree otherwise. All
objections made at the time of the examination to the qual!fica!ions
of the officer taking the deposition, or to the manner of taking it. or
to the evidence presented, or to the conduct of any party, and any
other objection to the proceedings, shall be noted by the o_fficer upon
the deposition. Evidence objected to shall be _tak~n subJ~ct to the
objections. In lieu of participating in the oral examm~t1on, parties se~ed
with notice of taking a deposition may transmit wntten mterrogatones
to the officers, who shall propound them to the witness and record the
answers verbatim. (17, R24)
SEC. 18. Motion to terminate or limit ex~mination .. :-- At any
time during the taking of the deposition, on motion or pennon of any
427
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW APPENDIX A
RULES OF CIVIL PROCEDURE

party or of the deponent and upon a showing that the examination is

being conducted in bad faith or in such manner as unreasonably to
SEC. 21. Notice of filing. - The officer taking the deposition shall
give prompt notice of its filing to all the parties. (21, R24)
annoy, embarrass, or oppress the deponent or party, the court in which
the action is pending or the Regional Trial Court of the place where , SEC. 22. Furnishing copies. - Upon payment of reasonable
the deposition is being taken may order the officer conducting the charges therefor, the officer shall furnish a copy of the deposition to any
examination to cease forthwith from taking the deposition, or may limit party orto the deponent. (22, R24)
the scope and manner of the taking of the deposition, as provided in
SEC. 23. Failure to attend of party giving notice. - If the party
Section 16 of this Rule. If the order made terminates the examination, it
giving the notice of the taking of a deposition fails to attend and proceed
shall be resumed thereafter only upon the order of the court in which the
therewith and another attends in person or by counsel pursuant to the
action is pending. Upon demand of the objecting party or deponent. the notice, the court may order the party giving the notice to pay such other
taking of the deposition shall be suspended for the time necessary to party the amount of the reasonable expenses incurred by him and his
make a notice for an order. In granting or refusing such order, the court counsel in so attending, including reasonable attorney's fees. (23a,
may impose upon either party or upon the witness the requirement .to R24)'
pay such costs or expenses as the court may deem reasonable. (1 Ba,
R24) ·: ssc, 24. Failure of party giving notice to serve subpoena. ~. If
1'
••

t he party giving the notice of the taking of a deposition of a witness _fails

1

SEC. 19. Submission to witness; changes; signing. - Wh~n the
testimony is fully transcribed, the deposition shall be submitted to the
witness for examination and shall be read ~o or by him, unless such
examination and reading are waived by the witness and by the parties.
Any changes in form or substance which the witness desires to make
shall be entered upon the deposition by the officer with a statement of
the reasons given by the witness for making them. The deposition shall
then be signed by the witness, unless the parties by stipulation waive
the signing or the witness is ill or cannot be found or refuses to sign. If
the deposition is not signed by the witness, the officer shall sign it and
state on the record the fact of the waiver or of the illness or absence1
of the witness or the fact of the refusal to sign together with the reason'.
given therefor, if any, and the deposition may then be used as fully as:
though signed, unless on a motion to suppress under Section 29(f) of.
this ~ule, the court holds that the reasons given for the refusal to sign,
require rejection of the deposition in whole or in part. (19a, R24) . . ,.
SEC. 20. Certification and filing by officer. - The officer shall
certify on the deposition that the witness was duly sworn to by him' and
that the deposition is a true record of the testimony given by the witness.
He 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. (201
R24) . the interrogatories and to prepare, certify, and file or mail the deposition,
to serve a subpoena upon him and the witness because of such failure
does not attend, and if another party attends in person or by counsel
because he expects the deposition of that witness to be taken, the court
may order the party giving the notice to pay to such other party ~e
amount of the reasonable expenses incurred by him and his counsel m
so attending, including reasonable attorney's fees. (24a, R24)
' SEC. 25. Deposition upon written interrogatories; service of notice
and of interrogatories. -A party desiring to take the deposition of any
person upon written interrogatories shall serve them upon every oth~r
p~rty with a notice stating the name and_ a~dre~s of the person who is
to answer them and the name or descriptive title and address of the
officer before whom the deposition is to be taken. Within ten (10) days
thereafter, a party so served may serve cr.os~-interrogatories upon the
party proposing to take the deposition. W1t~m five (5) days thereafter,
the latter may serve re-direct interrogatories upon a pa~ who has
served cross-interrogatories. Within three (3) days afte~ bemg ser.:ed
with redirect interrogatories, a party may serve recross-mterrogatones
upon the party proposing to take the deposition. (25, R24)
. SEC. 26. Officers to take responses and prepare record. -":, copy
of the notice and copies of all interrogatories serv~d shall _be dehve_red
by the party taking the deposition to the officer d.es1gnated in. the notice,
who shall proceed promptly, in the manner prov1d~d by S_ections 17, 19
and 20 of this Rule, to take the testimony of the w1tnes~ m respon~~ to

428 429
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
attaching thereto the copy of the notice and the interrogatories received
by him. (26, R24)
SEC. 27. Notice of filing and furnishing copies. - When a depo-
sition 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. (27,
R24)
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, on
motion promptly made by a party or a deponent, and for good cause
shown, may make any order specified in Sections 15, 16 and 18 of this
Rule which is appropriate and just or an order that the deposition shall
not be taken before the officer designated in the notice or that it' shall
not be taken except upon oral examination. (28a, R24)
SEC. 29. Effect of errors and irregularities in depositions. -
(a) As to notice. -All errors and irregularities in the notice
for taking a deposition are waived unless written objection is
promptly served upon the party giving the notice.
(?J As to disqualification of officer. - Objection to taking a
deposition because of disqualification of the officer before whom
it is to_~ take~ is waived unless made before the taking of the
deposition begins or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.
. (~) As to competency or relevancy of evidence. -
Objections to the ~~petency of a witness or the competency,
relevancy, or materrahty of testimony are not waived by failure to
make them before or during the taking of the deposition unless
the ground ~f the objection is one which might have been obviated
or removed 1f presented at that time.
. (d) A~ _to oral examination and other particulars. - Errors
and 1~regularrtres occurring at the oral examination in the manner
of taking the deposition, in the form of the questions or answers in
the oa~ or a~rmat~on, or in the conduct of the parties and errors
of any kind which might be obviated, removed or cured if promptly
prosecuted, are waived unless reasonable objection thereto is
made at the taking of the deposition.
430
APPEIIDIXA
RULES OF CIVIL PROCEDURE
(e) As to form of written interrogatories - Objections to
the form of written interrogatories submitted ~nder Sections 25
and 26 of this Rule are waived unless served in writing upon
the part~ propounding them within the time allowed for serving
succeeding cr~ss or other interrogatories and within three (3)
days after service of the last interrogatories authorized.
As to ma_nner of preparation. - Errors and irregularities in the
manner in • which th~ testimony is transcribed or the deposition is
prepared, signed, certified, sealed, indorsed transmitted filed or other-
wise dealt with by the officer under Section1s 17 19 20' and 26of this
Rule are waived unless a motion to suppress the d eposition or some
1
p~rt there~~ is made with reasonable promptness after such defect is, or
with due diligence might have been, ascertained. (29a, R24)
Rule 24
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL
SECTION 1. Depositions before action; petition. - A person
who desires to perpetuate his 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. (1a, R134)
SEC. 2. Contents of petition. - The petition shall be entitled in the
name of the petitioner and shall show: (a) that the petitioner expects
to be a party to an action in a court of the Philippines but is presently
unable to bring it or cause it to be brought; (b) the subject matter of the
expected action and his ~nterest therein; (c) the facts which he desires
to establish by the proposed testimony and his reasons for desiring to
perpetuate it; (d) the names or a description of the persons he expects
will be adverse parties and their addresses so far as known; and (e)
the names and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each, and
shall ask for an order authorizing the petitioner to take the depositions
of the persons to be examined named in the petition for the purpose of
perpetuating their testimony. (2, R134) ·
SEC. 3. Notice and service. - The petitioner shall serve a notice
upon each person named in the petition as an expected adverse party,
431
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
together with a copy of the petition, stating that the petitionerwill apply
to the court, at a time and place named therein, for the order described
in the petition. At least twenty (20) days before the date of the hearing,
the court shall cause notice thereof to be served on the· parties and
prospective deponents in the manner provided for service of summons.
(3a, R134)
SEC. 4. Order and examination. - If the court is satisfied that
the perpetuation of the testimony may prevent a failure or delay of
justice, it shall make an order designating or describing the persons
whose deposition may be taken and specifying the subject matter of
the examination and whether the depositions shall be taken upon oral
examination or written interrogatories. The depositions may then be
taken in accordance with Rule 23 before the hearing. (4a, R134)
SEC. 5. Reference to court. - For the purpose of applying Rule
23 to depositions for perpetuating testimony, each reference therein to
the court in which the action is pending shall be deemed to ref er to the
court in which the petition for such deposition was filed. (5a, R134)
SEC. 6. Use of deposition. - If a deposition to perpet:uate
testimony is taken under this Rule, or if, although not so taken, it would
be admissible in evidence, it may be used in any action involving the
same subject matter subsequently brought in accordance with the
provisions of Sections 4 and 5 of Rule 23. (6a, R134)
SEC. 7. Depositions pending appeal. - 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. In such case
the party who desires to perpetuate the testimony may make a motion
in the said court for leave to take the depositions, upon the same notice
and service thereof as if the action was pending therein. The motion
shall state: (a) the names and addresses of the persons to be examined
and the substance of the testimony which he expects to elicit from each;
and (b) the reason for perpetuating their testimony. If the court finds that
!he per~etuation of the testimony is proper to avoid a failure or delay of
Justice, it may make an order allowing the depositions to be taken, and
thereupon the depositions may be taken and used in the same manner
and under the same conditions as are prescribed in these Rules for
depositions taken in pending actions. (la, R134)
432
APPENDIX A
RULES OF CIVIL PROCEDURE
Rule 25
INTERROGATORIES TO PARTIES
- SECTIO~ _ 1. Interrogatories to parties; service thereof. - Under
the s.a~e con~1t1ons specified in Section 1 of Rule 23, 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 or, if the party served is a public or private corporation or
a partnership or association, by any officer thereof competent to testify
in its behalf. (1 a)
SEC. 2. Answer to interrogatories. - The interrogatories shall
be answered fully in writing and shall be signed and sworn to by the
person making them. The party upon whom the interrogatories have
been served shall file and serve a copy of the answers on the party
submitting the interrogatories within fifteen (15) days after service
thereof, unless the court, on motion and for good cause shown, extends
or shortens the time. (2a)
SEC. 3. Objections to Interrogatories. - Objections to any
interrogatories may be presented to the court within ten (10) days after
service thereof, with notice as in case of a motion; and answers shall
be deferred until the objections are resolved, which shall be at as early
a lime as is practicable. (3a)
SEC. 4. Number of interrogatories. - No party may, without leave
of court, serve more than one set of interrogatories to be answered by
the same party. (4)
SEC. 5. Scope and use of Interrogatories. - Interrogatories may.
relate to any matters that can be inquired into under Section 2 of Rule
23, and the answers may be used for the same purposes provided in
Section 4 of the same Rule. (5a).
SEC. 6. Effect of failure to serve written interrogatories. - 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. (n)
433
 ...
I
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Rule 26
ADMISSION BY ADVERSE PARTY
SECTION 1. Request for admission. - At any time after issues
have been joined, a party may file and serve upon any ot~er party a
written request for the admission by the latter o_f the genU1.n~ness .of
any material and relevant document described m and exhibited with
the request or of the truth of any material and relevant matter of fact set
forth in the request. Copies of the documents shall be delivered with the
request unless copies have already been furnished. (1a)
SEC. 2. Implied admission. - 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) 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 so,rves
upon the party requesting the admission a sworn statement lther
denying specifically the matters of which an admission is n quest d or
setting forth in detail the reasons why he cannot lruU1fully eiU, dr it
or deny those matters.
Objections to any request for admission shall be submin to
court by the party requested within the period for and prior lo th fi ing
of his sworn statement as contemplated in the preceding pamgr 1
and his compliance therewith shall be def erred until such obj cti ns
resolved, which resolution shall be made as early as pmcticablo. (2a)
SEC. 3. Effect of admission. - Any admission made b~, a part)'
pursuant to such request is for the purpose of the pending action on )'
and shall not constitute an admission by him for any other purpose n
may the same be used against him in any other proceeding. (3)
SEC. 4. Withdrawal. - The court may allow the party making an
admission under this Rule, whether express or implied, to withdraw or
amend it upon such terms as may be just. (4)
SEC. 5. Effect of failure to file and serve request for admission.
- Unless otherwise allowed by the court for good cause shown and to
prevent a failure of justice, a party who fails to file and serve a request
for admission on the adverse party of material and relevant facts at
Issue which are, or ought to be, within the personal knoY.1edge of the
latter, shall not be permitted to present evidence on such facts. (n)
434
APPENDIXA
RULES OF CIVIL PROCEDURE
Rule 27
PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS
SECTION 1. Motion for production or inspection; order. - Upon
motion of any party showing good cause therefor, 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,
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 possession, custody or control; or (b) order
any party to permit entry upon designated land or other property In
his possession or control for the purpose of Inspecting, measuring,
suf\'Oying, or photographing the property or any designated relevant
ob oct or operatlon thereon. The order shall specify the time, place and
mann t of making the Inspection and taking copies and photographs,
may proscribe such terms and conditions as are just. (1 a)
Rule 28
PHYSICAL AND MENTAL EXAMINATION
OF PERSONS
SECTION 1. When examination may be ordered. - In an action
., · :h the mental or physical condition of a party is in controversy, the
.n · n 1hldl the action is pending may in its discretion order him to
mi to a physical or mental examination by a physician. (1)
SEC. 2. Order for examination. - The order for examination may
be made only on motion for good cause shown and upon notice to the
party to be examined and to all other parties, and shall specify the time,
ace. manner, conditions and scope of the examination and the person
or persons by whom it is to be made. (2)
SEC. 3. Report of findings. - 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 setting out
his findings and condusions. 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.
435
 ES NS 'D ,\\\\S\\'1:RS IN
RBI EOIALlAW
lf tM party exam:ned refuses to de iver such report, the court on motion
E.OO rojce may ma. ·e an order requiring deliver)' on such terms as are
·ust and ff a physician fails or refuses to make such a report the court
may exoude his testimony if offered at the trial. (3a}
SEC. 4. Waiver of privlJege. - By requesting and obtaining a
report c the sxammation so ordered or by taki_n~ the deposition of ~e
exam;ner the party examined waives any privileqe he may have m
tt-..:4 adion or any other im•o!ving the same controversy, regarding the
estimony of every other person who has examined or may thereafter
exarn.'ne him in respect of the same mental or physical examination. (4J
Rule 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY
SECTION 1. Refusal to enswet. - 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. The same procedure may be availed of
when a party or a witness refuses to answer any interrogatory submitted
under Rule 23 or 25.
tf the application is granted, the court shall require the refusing
party or deponent to answer the question or interrogatory and if it also
finds that the refusal to answer was without substantial justification,
it may require the refusing party or deponent or the counsel advising
the refusal, or both of them, to pay the proponent the amount of
the reasonable expenses incurred in obtaining the order, including
attorney's fees. . to a physical or mental examination. (3a)
If the application is denied and the court finds that it was filed with-
out substantial justification, the court may require the proponent or the
counsel advising the filing of the application, or both of them, to pay to
~e refus!ng party or deponent the amount of the reasonable expenses
incurred m opposing the application, including attorney's fees. (1a)
SEC. 2. Contempt of court. - 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 o! that court. (2a)
436
APPENDIX A
RULES OF CIVIL PROCEDURE
S~C. 3. Other consequences. - If any party or an officer or
mana~rng agent of a party refuses to obey an order made under Section
1 of thrs Rule requiring him to answer designated questions, or an order
unde_r Rule 27 to produce any document or other thing for inspection,
copying, or photographing or to permit it to be done, or to permit entry
u~n land o~ other property, or an order made under Rule 28 requiring
hrm to subm,~ to a physical or mental examination, the court may make
such orders rn regard to the refusal as are just, and among others the
following: ·
(a) An order that the matters regarding which the questions
were asked, or the character or description of the thing or land,
or the contents of the paper, or the physical or mental condition
of the party, or any other designated facts shall be taken to be
established for the purposes of the action in accordance with the
claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to
support or oppose designated daims or defenses or prohibiting
him from introducing in evidence designated documents or things
·, . or items of testimony, or from introducing evidence of physical or
mental condition;
(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
judgment by default against the disobedient party; and
(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
SEC·. 4. Expenses on refusal to admit. - If a party after being
served with a request under Rule 26 refuses to admit the genuineness
of any document or the truth of any matter of fact, serves a sworn denial
thereof and if the party requesting the admissions thereafter proves the.
genuineness of such document or the truth of any such matter of fact,
he may apply to the court for an order requiring the other party to pay
him the reasonable expenses incurred in making such proof, induding
attorney's fees. Unless the court finds that there were good reasons
for the denial or that admissions sought were of no substantial impor-
tance, such order shall be issued. (4a)
437.

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. 5. Failure of party to attend or serve answers. - If a party
or an officer or managing agent of a party wilfully falls to appear before
the officer who ls to take his deposition, after being served with a
proper notice, or fails to serve answers to interrogatories submitted
under Rule 25 after proper service of such interrogatories, the court on
motion and notice, may strike out all or any part of any pleading of that
party. or dismiss the action or proceeding or .a~y p~rt th~reof, or enter
a judgment by default against that party, and m its d1scret1.on, order hi~
to pay reasonable expenses incurred by the other, including attorneys
tees. (5)
SEC. 6. Expenses against the Republic of the Philippines. -
Expenses and attorney's fees are not to be imposed upon the Republic
of the Philippines under this Rule. (6)
Rule 30
TRIAL
SECTION 1. Notice of trial. - Upon entry of a case in the trial
calendar, the cleri< shall notify the parties of the date of its trial in such
manner as shall ensure his receipt of that notice at least five (5) days
before such date. (2a, R22)
SEC. 2. Adjournments and postponements. - A court may
adjourn a trial from day to day, and to any stated time, as the expeditious
and convenient transaction of business may require, but shall have no
power to adjourn a trial for a longer period than one month for each
adjournment, nor more than three months in all, except when authorized
in writing by the Court Administrator, Supreme Court. (3a, R22)
SEC. 3. Requisites of motion to postpone trial for absence of
evidence. - A motion lo postpone a trial on the ground of absence of
evidence can be granted only upon affidavit showing the materiality
or relevancy of such evidence, and that due diligence has been used
to procure it. But if the adverse party admits the facts to be given In
evidence, even if he objects or reserves the right to object to their
admissibility, the trial shall not be postponed. (4a, R22; Cir. No. 39-98.)
SEC. 4. Requisites of motion to postpone trial for Illness of party
or counsel. - A motion to postpone a trial on the ground of Illness of
a party or counsel may be granted if It appears upon affidavit or sworn
certification that the presence of such party or counsel at the trial is
436
APPENDIX A
RULES OF CIVIL PROCEDURE
indispensable and that the character or his illness is such as to render
his non-attendance excusable. (5a, R22)
SEC. 5. Order of trfal. - Subject to the provisions of Section 2 of
Rule 31, and unless the court for special reasons otherwise directs, the
trlal shall be limited to the Issues staled in the prfrtrial order and shall
proceed as follows:
(a) The plaintiff shall adduce evidence in support of his
complaint;
(b) The defendant shall then adduce evidence in support of
his defense, counterclaim, cross-claim and third-party complaint;
(c) The third-party defendant, if any, shall adduce evi-
dence of his 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 er~
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 re~utting
evidence only, unless the court, for good reasons and an th~
furtherance of justice, permits them to adduce evidence upon their
original case; and
(g) Upon admission of the evidence, th~ 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.
If several defendants or third·p~rty defendants, and so forth,
having separate defenses appear by d1~erent co.uns~I. the court shall
determine the relative order of presentation of their evidence. (1a, R30)
SEC. 6. Agreed statement of facts. - The ~arties ~~ a~y action
riting upon the facts involved m the ht1gation, and
may agree, i n W • d 'thout the
submit the case for judgment on the facts agree upon, w1
Introduction of evidence.
rt' agree only on some of the facts in issue, the trial
If thhe lpda ,etso the disputed facts In such order as the court shall
shall be e as
prescribe. (2a, R30)
439
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. 7. Statement of judge. - During the hearing or trial of a
case any statement made by the judge with reference to the case, or to
any of the parties, witnesses or counsel, shall be made of record in the
stenographic notes. (3a, R30)
SEC. 8. Suspension of actions. - The suspension of actions shall
be governed by the provisions of the Civil Code. (n)
SEC. 9. Judge to receive evidence; delegate on to clerk of court.
- The judge of the court where the case is pending shall personally
receive the evidence to be adduced by the parties. However, in default
or ex parte hearings, and in any case where the parties agree in writing,
the court may delegate the reception of evidence to its clerk of court
who Is a member of the bar. The clerk of court shall have no power
to rule on objections to any question or to the admission of exhibits,
which objections shall be resolved by the court upon submission of his
report and the transcripts within ten (10) days from termination of the
hearing. (n)
Rule 31
CONSOLIDATION OR SEVERANCE
SECTION 1. Consolidation. - When actions Involving a common
question of law or fact are pending before the court, it may order a
joint hearing or trial of any or all the matters in issue In the actions; it
may order all the actions consolidated; and It may make such orders
concerning proceedings therein as may tend to avoid unnecessary
costs or delay. (1)
SEC. 2. Separate trials. - The court, In furtherance of conve-
nience or to avoid prejudice, may order a separate trial of any daim,
cross-claim, counterclaim, or third-party complaint, or of any separate
Issue or of any number of claims, cross-claims, counterclaims, third-
party complaints or issues. (2a)
Rule 32
TRIAL BY COMMISSIONER
. SECTION 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
440
APPE.NDIXA
RULES OF CIVIL PROCEDURE
appointed by the court As u d . h
includes a referee a . d. se int ese Rules, the word "cornmlssloner"
' n au itor and an examiner. (1a, R33)
SEC. 2• Reference ordered on motion. - When the parties do
no\~<m~~nt, tecourt may, upon the application of either or of its own
mo ion, irec a reference to a commissioner in the following cases:
. . (a) When the trial of an issue of fact requires the exam-
1~at1on of a long account on either side, in which case the commis-
sioner may _be direct.ed 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
informat1?n of the court before judgment, or for carrying a judgment
or order into effect; and
(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. (2a, R33)
SEC. 3. Order of reference,· powers of the commissioner. -When
a reference Is made, the clerk shall forthwith furnish the commissioner
with a copy of the order of reference. The order may specify or limit the
powers of the commissioner, and may direct him to report. only upon
particular issues, or to do or perform particular acts, or to receive and
report evidence only, and may fix the date for beginning and closing the
hearings and for the filing of his report. Subject to the specifications and
limitations stated In the order, the commissioner has and shall exercise
the power to regulate the proceedings in every hearing before him and
to do all acts and take all measures necessary or proper for the efficient
performance of his duties under the order. He may issue subpoenas
and subpoenas duces tecum, swear witnesses, and unless otherwise
provided in the order of reference, he may rule upon the admissibility of
evidence. The trial or hearing before him shall proceed In all respects
as it would if held before the court. (3a, R33)
SEC. 4. Oath of commissioner. - Before entering upon his duties
the commissioner shall be sworn to a faithful and honest performance
thereof. (4, R33)
SEC. 5. Proceedings before commissioner. - Upon receipt
of the order of reference and unless otherwise provided therei~, the
commissioner shall forthwith set a time and place for the first meeting of
the parties or their counsel to be held within ten (10) days after the date
441

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
of the order of reference and shall notify the parties or their counsel.
(5a, R33)
SEC. 6. Failure of parties to appear before commisstanet: - If a
party fails to appear at the time and place app~inted, the commi~sioner
may proceed ex parte or, in his discretion, adjourn t~e proceedings to
a future day, giving notice to the absent party or his counsel of the
adjournment.(6a, R33)
SEC. 7. Refusal of witness. - The refusal of a witness to obey
a subpoena issued by the commissioner or to give evidence before
him, shall be deemed a contempt of the court which appointed the
commissioner.(?a, R33)
SEC. 8. Commissioner shall avoid delays. - It is the duty of the
commissionerto proceed with all reasonable diligence. Either party, on
notice to the parties and commissioner,may apply to the court for an
order requiring the commissionerto expedite the proceedings and to
make his report. (Ba, R33) · ' : · ·' · · ·
SEC. 9. Report of commissioner. - Upon the completion of the
trial or hearing or proceedingbefore the commissioner,he shall file with
the court his report in writing upon the matters submitted to him by the
order of reference. When his powers are not specified or limited, he
shall set forth his findings of fact and conclusions of law in his report.
He shall attach thereto all exhibits, affidavits, depositions, papers and
the transcript,if any, of the testimonial evidence presented before him.
(9a, R33)
SEC. 10. Notice to parties of the filing of report. - Upon the filing
of the report, the parties shall be notified by the clerk, and they shall
be allowed ten (10) days within which to signify grounds of objections
to the findings of the report, if they so desire. Objections to the report
based upon grounds which were available to the parties during the
proceedings before the commissioner, other than objections to the
findings and conclusionstherein set forth, shall not be considered by
the court unless they were made before the commissioner. (10, R33)
SEC.11. Hearing upon report. -Upon the expiration of the period
of ten (10) days referred to in the preceding section: the report shall
be set for hearing, after which the court shall issue an order adopting,
modifying,or rejecting the report in whole or in part, or recommitting it
with instructions, or requiring the parties to present further evidence
beforethe commissioneror the court. (11a, R33)
442
--·-·-··-·- . . . ·-----·-· -u,
APPENDIX A
RULES OF CIVIL PROCEDURE
SEC. 12. Stipulations as to findings. - When the parties stipulate
that a commissioner'sfindings of fact shall be final, only questions of
law shall thereafter be considered.(12a, R33)
SEC. 13. Compensation of commissioner. - The court shall allow
the commissioner such reasonablecompensation as the circumstan-
ces of the case warrant,to be taxed as costs against the defeated party,
or apportioned, as justice requires.(13, R33) -
Rule 33
DEMURRER TO EVIDENCE
SECTION 1. Demurrer to evidence. - After the plaintiff has
completed the presentation of his evidence,the defendant may move
for dismissal on the groundthat upon the facts and the law the plaintiff
has shown no right to relief. If his motion is denied, he shall have the
right to present evidence. If the motion is granted but on appeal the
order of dismissal is reversedhe shall be deemed to have waived the
right to present evidence. (1B, R35)
Rule 34
JUDGMENT ON THE PLEADINGS
SECTION 1. Judgment on the pleadings. - Where an answer
fails to tender an issue, or otherwiseadmits the material allegations
of the adverse party's pleading, the court may, on motion of that party,
direct judgment on such pleading.However,in action~ for declarati~n
of nullity or annulmentof marriageor for legal separation, the material
facts alleged in the complaintshall always be proved. (1a, R19)
Rule 35
SUMMARY JUDGMENTS
' SECTION 1. Summary judgment for claimant. - A party seeking
to recover upon a claim,· cou~terclaim,or cross~cla(mor to obtain a
declaratory relief may, at any time after the pleadm~m answe.r.thereto
has been served, move with supporting affidavits, depositlons or
admissions for a summaryjudgment in his favor upon all or any part
thereof. (1 a, R34)
443
 QUESTIONS AND AN W RS II~
~ MEDIAL LAW
SEC. 2. Summa , Judgment for defending party. -A party against
whom dalm. counterclaim. or cross -clalrn is as ert d or_ a declarat?ry
rehe 1 ~oug h\ ma I . a\ uanv
, · }
time • move with supporting•
affidavits,
ocposnion O admi Ion for a summary judgment in hrs favor as to all
or an part thereof. (2a. R34)
SEC. 3. Motion and proceedings thereon. - The motion shal~ be
erved al I a t ten (1 O) days before the time speci~ed for th~ heartnq.
Th aove e party ma serve opposing affidavits, deposlttons, or
admission at lea t lhree (3) day before the hearing. Af1er the hearing,
the judgment ·ought shall be rendered f?rt~wlth If the pleadings,
upport.ing affidavits, depositions, and adm1~s1ons on ~le, .show that,
except a to the amount of damages, ther~ rs n~ genurn~ issue as to
any material fact and that the moving party rs entitled to a Judgment as
a matte of law. (38, R34)
SEC. 4. Case not fully adjudicated on motion. - If on motion
under this Rule, judgment is not rendered upon the whole case or for
all reliefs sought and a trial is necessary, the court at the hearing
o the motion, by examining the pleadings and the evidence before it
and h interrogating counsel shall ascertain what material facts exist
ittlout substantial controversy and what are actually and in good faith
contro ened. It shall thereupon make an order specifying the facts that
appear without substantial controversy, including the extent to which the
amoun of damages or other relief is not in controversy, and directing
such further proceedings in the action as are just. The facts so specified
shall be deemed established, and the trial shall be conducted on the
controverted facts accordingly. (4a, R34)
SEC. 5. Fonn of affidavits and 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. (5a, R34)
S~C. 6. Affidavits in bad faith. - Should it appear to its satisfaction
at any time that any of the affidavits presented pursuant to this Rule are
prese~ted in bad faith, or solely for the purpose of delay, the court shall
forthwith order the offending party or counsel to pay to the other party
the amo~nt of_the r~ason~ble expenses which the filing of the affidavits
ca~sed hrm lo rncur, rndudrng attorney's fees. It may, after hearing, further
adJudge the offending party or counsel guilty of contempt. (6a, R34)
PPE~IOI
RU E,:, OF CIVIL PROCEDURE
Rule 36
JUDGMENTS, FINAL ORDERS
ANO ENTRY THEREOF
SECTION 1. Rendition of JudgmentG and final orders. - A
judgment or final order determining the merits of the case shall be in
writing personally and directly prepared by the judge. stating clearly and
distinctly the facts and the law on which it is based. signed by him. and
filed with lhe clerk of the court. (ta)
SEC. 2. Entry of judgments and final orders. -- If no appeal or
motion for new trial or reconsideration is filed within the lime pro 1ided
in these Rules, the judgment or final order shall forthwith be entered by
the clerk In the book of entries of judgments. The data of finality of the
judgment or final order shall be deemed to be the date 01· its entry. The
record shall contain the dispositive part of the judgment or final order
and shall be signed by lhe clerl<, with a certificate that such judgment or
final order has become final and executory. (2a, 10. R51)
SEC. 3. Judgment for or against one or more of several parties.
- Judgment may be given for or against one or more of several
plaintiffs, and for or against one or more of several defendants. When
justice so demands, the court may require the parties on each side to
file adversary pleadings as between themselves and determine their
ultimate rights and obligations. (3)
SEC. 4. Several judgments. - In an action against several
defendants, the court may, when a several judgment is proper. render
judgment against one or more of them, leaving the action to proceed
against the others. (4)
SEC. 5. Separate judgments. -When more than one claim for relief
is presented in an action, the court, at any stage, upon a determination
of the issues material to a particular claim and all counterclaims arising
out of the transaction or occurrence which is the subject matter of
the claim, may render a separate judgment disposing of such claim.
The judgment shall terminate the action with respect to the claim so
disposed of and the action shall proceed as to the remaining claims. In
case a separate judgment is rendered, the court by order may stay its
enforcement until the rendition of a subsequent judgment or judgments
and may prescribe such conditions as may be necessary to secure the
445
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
benefit thereof to the party in whose favor the judgment is rendered.
(Sa)
SEC. 6. Judgment against entity without juridical personality.
- 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. (6a)
Rule 37
NEW TRIAL OR RECONSIDERATION
SECTION 1. Grounds of and period for filing motion for new trial or
reconsideration. -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 materially
affecting the substantial rights of said party:
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; or
(a) Newly discovered evidence, which he could not, with rea-
sonable diligence, have discovered and produced at the trial. and which
if presented would probably alter the result.
Within the same period, the aggrieved party may also move
for reconsideration upon the grounds that the damages awarded are
excessive, that the evidence Is insufficient to Justify the decision or final
order, or that the decision or final order is contrary to law. (1a)
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, a written notice of which shall be served by the
movant on the adverse party.
A motion for new trial shall be proved in the manner provided
for proof of motions. A motion for the cause mentioned in paragraph
(a) of the preceding section shall be supported by affidavits of merits
which may be rebutted by affidavits. A motion for the cause mentioned
in paragraph (b) shall be supported by affidavits of the witnesses by
whom such evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.
446
APPENDIXA
RULES OF CIVIL PROCEDURE
. A motion !or reconsideration shall point out specifically the find-
ings or conclusions of the judgment or final order which are not sup-
ported by the evidence or which are contrary to law, making express
r~ference to the testimonial or documentary evidence or to the provi-
sions of law alleged to be contrary to such findings or conclusions.
A pro forma motion for new trial or reconsideration shall not toll
the reglementary period of appeal. (2a)
SEC. 3. Action upon motion for new trial or reconsideration. -
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. (3a, R37)
SEC. 4. Resolution of motion. - A motion for new trial or recon-
sideration shall be resolved within thirty (30) days from the time it is
submitted for resolution. (n)
SEC. 5. Second motion for new trial. - A motion for new trial
shall include all grounds then available and those not so included shall
be deemed waived. A second motion for new trial, based on a ground
not existing nor available when the first motion was made, may be filed
within the time herein provided excluding the time during which the first
motion had been pending.
No party shall be allowed a second motion for reconsideration of
a judgment or final order. (4a, R37; 4, IRG)
SEC. 6. Effect of granting of motion for new trial. - If a new trial
is granted in accordance with the provisions of this Rule, the original
judgment or final order shall be vacated, and the action shall stand for,
trial de novo; but the recorded evidence taken upon the former trial, in
so far as the same is material and competent to establish the issues,
shall be used at the new trial without retaking the same. (5a)
SEC. 7. Partial new trial or reconsideration. - If the grounds for
a motion under this Rule appear to the court to affect the issues as to
only a part, or less than all of the matter in controversy, or o~ly one, or
less than all of the parties to it, the court may order a new trial or grant
reconsideration as to such issues if severable without interfering with
the judgment or final order upon the rest. (6a)
447
I

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. B. Effect of order for partial new trial. - 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. (la)
SEC. 9. Remedy against order denying a motion for new trial or
reconsideration. - An order denying a motion for new trial or recon-
sideration is not appealable, the remedy being an appeal from the
judgment or final order. (n)
Rule 38
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER
PROCEEDINGS
SECTION 1. Petition for relief from judgment, order, 'or other
proceedings. -When a judgment or final order is entered, or any other
proceeding is thereafter taken against a party in any court through
fraud, accident, mistake, or excusable negligence, he may file a petition
in such court and in the same case praying that the judgment, order or
proceeding be set aside. (2a)
SEC. 2. Petition for relief from denial of appeal. - When a
judgment or final order is rendered by any court in a case, and a party·
thereto, by fraud, accident, mistake, or excusable negligence, has been
prevented from taking an appeal, he may file a petition in such court
and in the same case praying that the appeal be given due course. (1 a)
. . SEC. ~- Time for filing petition; contents and verification. - A
petitio~ provided for in either of the preceding sections of this Rule must
~e venfied, filed within sixty (60) days after the petitioner learns of the
Judgm~nt, final order, or other proceeding to be set aside, and not more
:an six (6) ~onths after such judgment or final order was entered, or
ch _proceeding was taken; and must be accompanied with affidavits
ushowing the fraud • accident · tak e, or excusable neghgence
. , _mis · relied
pon, and ~e facts constituting the petitioner's good and substantial
cause of action or defense, as the case may be. (J)
t SEC. 4· Order to file an answer. - If the petition is sufficient In
. orm and substance to justify relief, the court in which it is filed shall
~s;ue an order requiring the adverse parties to answer the same 'within
I een (15) days from the receipt thereof. The order shall be served
448
---· . -·1
APPENDIX A
RULES OF CIVIL PROCEDURE
in ~~ch manner as lhe court may direct. together with copies of the
petition and the accompanying affidavits. (4a)
SEC. 5. Preliminary injunction pending proceedings. The court
in which the petition is filed, may grant such preliminary injunction
as may be necessary for the preservation of the rights of the parties,
upon the filing by the petitioner of a bond in favor of the adverse party,
conditioned that if the petition is dismissed or the petitioner fails on
the trial of the case upon its merits, he will pay the adverse party all
damages and costs that may be awarded to him by reason of the
issuance of such injunction or the other proceedings following the
petition; but such injunction shall not operate to discharge or extinguish
any lien which the adverse party may have acquired upon the property
of the petitioner. (Sa)
SEC. 6. Proceedings after answer is filed. -After the filing of the
answer or the expiration of the period therefor, the court shall hear the
petition and if after such hearing, it finds that the allegations thereof are
not true, the petition shall be dismissed; but if it finds said allegations to
be true, it shall set aside the judgment or final order or other proceeding
complained of upon such terms as may be just. Thereafter, the case
shall stand as if such judgment, final order or other proceeding had
never been rendered, issued or taken. The court shall then proceed
to hear and determine the case as if a timely motion for a new trial or
reconsideration had been granted by it (6a)
SEC. 7. Procedure where the denial of an appeal is set aside .
- Where the denial of an appeal is set aside, the lower court shall be
required to give due course to the appeal and to elevate the record of
the appealed case as if a timely and proper appeal had been made.
(la)
Rule 39
EXECUTION, SATISFACTION AND EFFECT
OF JUDGMENTS
SECTION 1. Execution upon judgments or final orders.
Execution shall issue as a matter of right, on 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.
(ta)
449
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
If the appeal has been duly perfected and finall~ resolved, ~he
execution may forthwith be applied for in the court of ongm, on motion
of the judgment obligee, submitting therewith certified true copies of the
judgment or judgments or final order or orders sought to be enforced
and of the entry thereof, with notice to the adverse party.
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. (As amended by Cir. No. 24-94.)
SEC. 2. Discretionary execution. -
(a) Execution of a judgment or a final order pending appeal.
- On motion of the prevailing party with notice to the adverse
party filed in the trial court while it has jurisdiction over the case
and is in possession of either the original record or the record on
appeal, as the case may be, at the time of the filing of such motion,
said court may, in its discretion, order execution of a judgment or
final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for
execution pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons
to be stated in a special order after due hearing.
(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. (2a)
SEC. 3. Stay of discretionary execution. ~ Discretionary execu-
tion issued under the preceding section may be stayed upon approval
by the proper court of a sufficient supersedeas bond filed by the party
against whom it is directed, conditioned upon the performance of the
judgment or order allowed to be executed in case it shall be finally
sustained in whole or in part. The bond thus given may be proceeded
against on motion with notice to the surety. (3a)
SEC. 4. Judgments not stayed by appeal. - Judgments in actions
~or injunction, receivership, accounting and support, and such other
Judgments as are now or may hereafter be declared to be immediately
executory, shall be enforceable after their.rendition and shall not be
stayed by an appeal taken therefrom, unless otherwise ordered by the
450
APPENDIX A
RULES OF CIVIL PROCEDURE
trial court. On appeal therefrom, the appellate court in its discretion
may make an order suspending, modifying, restoring or granting the
injunction, receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or protection of
the rights of the adverse party. (4a)
SEC. 5. Effect of reversal of executed judgment. - Where the
executed judgment is reversed totally or partially, or annulled, on
appeal or otherwise, the trial court may, on motion, issue such orders of
restitution or reparation of damages as equity and justice may warrant
under the circumstances. (5a)
SEC. 6. Execution by motion or by independent action. - A final
and executory judgment or order may be executed on motion within
five (5) years from the date of its entry. After the lapse of such time,
and before it is barred by the statute of limitations, a judgment may
be enforced by action. The revived judgment may also be enforced
by motion within five years from the date of its entry and thereafter by
action before it is barred by the statute of limitations. (6a)
SEC. 7. Execution in case of death of party. - In case of the death
of a party, execution may issue or be enforced in the following manner:
(a) In case of the death of the judgment obligee, upon
the application of his executor or administrator, or successor in
interest;
(b) In case of the death of the judgment obliger, 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; and
(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. (la)
SEC. 8. Issuance, form end.coments of a writ of execution. -
The writ of execution-shall: (1) issue in the name of the Republic of the
Philippines from the court which granted the motion; (2) state the name
of the court, the case number and title, the dispositive part of the subject
judgment or order; and (3) require the sheriff or other proper officer
451
 QUESTIONS AND ANSWERS
REMEDIAL LAW
IN
to whom it is directed to enforce the writ according to its terms,
manner hereinafter provided:
(a) If the execution be against the property of the judgment
obligor, to satisfy the judgment, with interest, out of the real or
personal property of such judgment obligor;
(b) If it be against real or personal property in the hands
of personal representatives, heirs, devisees, legatees, tenants,
or trustees of the judgment obligor, to satisfy the judgment, with
interest, out of such property;
(c) If it be for the sale of real or personal property, to sell
such property, describing it, and apply the proceeds on conformity
with the judgment, the material parts of which shall be recited in
the writ of execution;
(d) If it be for the delivery of the possession of real or
personal property, to deliver the possession of the same, des-
cribing it, to the party entitled thereto, and to satisfy any costs,
damages, rents, or profits covered by the judqrnent out of the
personal property of the person against whom it was rendered,
and if sufficient personal property cannot be found, then out of the
real property; and
(e) In all cases, the writ of execution shall specifically state
the amount of the interest, costs, damages, rents, or profits due
as of the date of the issuance of the writ, aside from the principal
obligation under the judgment. For this purpose, the motion for
execution shall specify the amounts of the foregoing reliefs sought
by the movant. (Ba) · may be levied upon, sufficient to satisfy the judgment. If the
SEC. 9. Executio'? of ju~gments for money, how enforced. -
(a) Immediate payment 'on demand. - The officer shall
enf~rce an exe~ion of a judgment for money by demanding from
the Judgment obltgor the immediate payment of the full amount
sta~ed in the writ of execution and all lawful fees. The judgment
?bhgor shall pay in cash, certified bank check payable· to the
Judgment obligee, or any other form of payment acceptable to
~e latter, the ~mount of the judgment debt under proper receipt
?irectly to the Judgment obligee or his authorized representative
if present at the time of payment. The lawful fees shall be handed
under proper receipt to the executing sheriff who shall tum over
452
APPENDIX A
RULES OF CIVIL PROCEDURE
I
in the
the said amount within the same day to the clerk of court of the
court that issued the writ.
. If the judgment obligee or his authorized representative
is not present to receive payment, the judgment obliger shall
deliver the aforesaid payment to the executing sheriff. The latter
shall turn over all the amounts coming into his possession within
the same day to the clerk of court of the court that issued the
writ, or if the same is not practicable,.deposit said amounts to a
fiduciary account in the nearest government depository bank of
the Regional Trial Court of the locality.
I'
•1 .: The clerk of said court shall · thereafter arrange for the
remittance of the deposit to the account of the court that issued
the writ whose clerk of court shall then deliver said payment to the
judgment obligee in satisfaction of the judgment. The excess, if
., :· any, shall be delivered to the judgment obliger while the lawful fees
shall be retained by the clerk of court for disposition as provided
by law. In no case shall the executing sheriff demand that any
1
• payment by check be made payable to him.
. (b) Satisfaction by levy. - If the judgment obligor cannot
pay all or part of the obligation in cash, certified bank check or
. other mode of payment acceptable to the judgment obligee, the
officer shall levy upon· the properties of the judgment obliger of
every kind and nature whatsoever which may be disposed of for
value and not otherwise exempt from execution giving the latter
the option to immediately choose which property or part thereof
judgment obliger does not exercise the option, the officer shall
first levy on the personal properties, if any, and then on the real
'!: ... . properties if the personal properties are insufficient to answer for
• r • the judgment.
The sheriff shall sell only a sufficient portion of the personal
or real property of the judgment obliger which has been levied
upon.
When there is more property of the judgment obliger than is
sufficient to satisfy the judgment and lawful fees, he must sell only
so much of the personal or real property as is sufficient to satisfy
,. · the judgment and lawful fees.
453
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
Real property, stocks, shares, debts, credits, and other per-
sonal property, or any interest in either r~al ~r personal property,
may be levied upon in like manner and with hke effect as under a
writ of attachment.
(c) Garnishmentof debts and credits. - The officer may
levy on debts due the judgment obliger and other credits, Including
bank deposits, financial interests, royalties, commissions and
other personal property not capable of manual delivery in the
possession or control of third parties. Levy shall be made by
serving notice upon the person owing such debts or having in his
possession or control such credits to which the judgment obliger
is entitled. The garnishment shall cover only such amount as will
satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the court within
five (5) days from service of the notice of garnishment stating
whether or not the judgment obliger has sufficient funds or credits
to satisfy the amount of the judgment. If not, the report shall state
how much funds or credits the garnishee holds for the judgment
obligor. The garnished amount in cash, or certified bank check
issued in the name of the judgment obligee, shall be delivered
directly to the judgment obligee within ten (10) working· days from
service of notice on said garnishee requiring such delivery, except
the lawful fees which shall be paid directly to the court.
In. the eve~t there are two or more garnishees holding deposits
or ~edits sufficient to satisfy the judgment, the judgment obliger, if
avalfable, shall have the right to indicate the garnishee or garnishees
who shall be required to deliver the amount due; otherwise, the choice
shall be made by the judgment obligee. ·
The execu~ng sheriff shall observe the same procedure under
par:9graph (a) with respect to delivery of payment to the judgment
obhgee. (Ba, 15a)
SEC. 10. Executionofjudgments for specific act._
. (a). Convey~nce,delivery of deeds, or other specific acts;
vestmgtitle. - If a Judgment directs a party to execute a convey-
~nce of land or personal property, or to deliver deeds or other
ocum~nts, or to perform any other specific act in connection
. SEC. 11. Execution of special judgments. - When a j~dgme~t
requires the performance of any act other than th?se mentioned rn
therewith, and the party fails to comply within the time specified,
the two preceding sections, a certified copy of the Judgment shall be
454
APPENDIX A
RULES OF CIVIL PROCEDURE
the court may direct the act to be done at the cost of the disobedi-
ent party by some other person appointed by the court and the act
when so done shall have like effect as rf done by the party. If real
or personal property is situated within the Philippines. the court in
lieu of directing a conveyance thereof may by an order divest the
title of any party and vest it in others, which shall have the force
and effect of a conveyance executed in due form of law. (10a)
(b) Sale of real or personal property. - 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. (B[c]a)
(c) Delivery or restitution of real property. - The officer
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 thereof to the
judgment obligee; otherwise, the officer shall oust all such persons
therefrom with the assistance, if necessary, of appropriate peace
officers, and employing such means as may be reasonably
necessary to retake possession, and place the judgment obligee
in possession of such property. Any costs, damages, rents or
profits awarded by the judgment shall be satisfied in the same
manner as a judgment for money. (13a)
(d) Removal of improvements on property subject of ex-
ecution. - When the property subject of the execution contains
improvements constructed or planted by the judgment obligor or
his agent, the officer shall not destroy, demolish or remove said
improvements except upon special order of the court, issued upon
motion of the judgment obligee after due hearing and after the
former has failed to remove the same within a reasonable time
fixed by the court. (14a)
(e) Delivery of personal property. - In judgments f~r the
delivery of personal property, the officer shall take possession of
the same and forthwith deliver it to the party entitled thereto and
satisfy any judgment for money as therein provided. (Ba)
455
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
attached to the writ of execution and shall be served by the officer upon
the party against whom the same is rendered, or upon any other person
required thereby, or by law, to obey the same, and such party or person
may be punished for contempt if he disobeys such judgment. (9a)
SEC. 12. Effect of levy on execution as to third persons. - The
levy on execution shall create a lien in favor of the Judgment obligee
over the right, title and interest of the judgment obliger in such pro-
perty at the time of the levy, subject to liens and encumbrances then
existing. (16a)
SEC. 13. Property exempt from execution. - Except as other-
wise expressly provided by law, the following property, and no other,
shall be exempt from execution: '
(a) The judgment obliger's family home as provided by
law, or the homestead in which he resides, and land. necessarily
used in connection therewith; ·
. . (b) Ordinary tools and implements personally used by him
rn hrs trade, employment, or livelihood; · · . been satisfied in part or in full. If the judgment cannot be satisfied in full
(c) Three horses, or three cows •. or three carabaos, or
other be~sts of burden, such as the judgment obliger may select
necessanly used by him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary
sonal use, excluding jewelry; ,
_(e) Household furniture and utensils necessary for house-
k~eprn~, and used for that purpose by the judgment obligor and
hrs fam~ly, such as the judgment obliger may select, of a value not
exceeding one hundred thousand pesos;
·(f) Provisions for individual or family use sufficient for four
months;
I (g) Th~ _professional libraries and equipme~t of, j.udges
i:;~~~~Y:~~h':;th:rmacists, dentists'. engineers, surveyors:
three hundred thous~nd npdesooth_er plrofess1onals, not exceeding
s m va ue;
· (h) One fishing boat d .
total value of one hundred th an accessones not exceeding the
and by the lawful use of wh· ~uhsand peso~ o:,vn~d by a fisherman
ic e earns his hvehhood; . . .
456
APPENDIX A
RULES OF CIVIL PROCEDURE
. . . (i) S~ much of the salaries, wages, or earnings of the
Judgment obhgor for his personal services within the four months
preceding the levy as are necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or in
any manner growing out of any life insurance;
· (I) The right to receive legal support, or money or property
obtained as such support, or any pension or gratuity from the
Government; and
(m) Properties specially exempted by law.
But no article or species of property mentioned in this section shall
be exempt from execution issued upon a judgment recovered for its
price or upon a judgment of foreclosure of a mortgage thereon. (12a)
SEC. 14. Re tum of writ of execution. - The writ of execution shall
be returnable to the court issuing it immediately after the judgment has
within thirty (30) days after his receipt of the writ, the officer shall report
to the court and state the reason therefor. Such writ shall continue in
effect during the period within which the judgment may be enforced
by motion. The officer shall make a report to the court every thirty (30)
per- days on the proceedings taken thereon until the judgment is satisfied
in full, or its effectivity expires. The returns or periodic reports shall set
forth the whole of the proceedings taken, and shall be filed with the
court and copies thereof promptly furnished the parties. (11a)
SEC. 15. Notice of sale of property on execution. - Before the
sale of property on execution, notice thereof must be given as follows:
•' (a) In case of perishable property, by posting written
notice of the time and place of the sale in three (3) public places,
preferably in conspicuous areas of the municipal or city hall, post
office and public market in the municipality or city where the sale
is to take place, for such time as may be reasonable, considering
the character and condition of the property;
(b) In case of other personal property, by posting a similar
notlce in the three (3) public places above-mentioned for not less
than five (5) days;
457
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
In case of real property, by posting for twenty (20) days In the
three (3) public places abovementioned a similar notice ~articu-
lariy describing the property and stating where the property is to be
nd if the assessed value of the property exceeds fifty thou-
so Id . a t'
sand (PS0,000.00) pesos, by publishing a copy of the no ice once a
week for two (2) consecutive weeks in one n~wspa~er selected by
raffle, whether in English, Filipino, or any major regional langu~ge
published, edited and circulated or, in the absence thereof, having
general circulation in the province or city; and
(c) In all cases, written notice of the sale shall be given
to the judgment obliger. at least three (3) days before the sale,
except as provided in paragraph (a) hereof where notice shall be
given at any time before the sale, in the same manner as personal
service of pleadings and other papers as provided by Section 6
of Rule 13.
The notice shall specify the place, date and exact time of the sale
which should not be earlier than nine o'clock in the morning and not
later than two o'clock in the afternoon. The place of the sale may be
agreed upon by the parties. In the absence of such agreement, the sale
of real property or personal property not capable of manual delivery
shall be held in the office of the clerk of court of the Regional Trial
Court or the Municipal Trial Court which issued the writ or which was
designated by the appellate court. In the case of personal property
capable of manual delivery, the sale shall be held in the place where
the property is located. (18a) '
SEC. 16. Proceedings where property claimed by third person.
:--- If the property levied on is claimed by any person other than the
J~dg_rnent obliger or his agent, and such person makes an affidavit of
his tit!~ theret? or right to the possession thereof, stating the grounds of
such nght or title, and serves ~he 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 of!icer, ~les a bond approved by the court to indemnify the third-
party clairn~nt ma sum not less than the value of the property levied on.
~n ~se of d1~agr~ementa~ to such value, the same shall be determined
ta"k· e court issuing the wnt of execution. No claim for damages for the
unl;;s ~~ kee~ing of the ~roperty may be enforced against the bond
fro th de action ther~for is filed within one hundred twenty (120) days
m e ate of the filing of the bond.
458
APPENDIX A
RULES OF CIVIL PROCEDURE
The officer shall not be liable for damages for the taking or keeping
of the property, to any third-party claimant if such bond is filed. Nothing
herein contained shall prevent such claimant or any third person from
vindicating his claim to the property in a separate action. or prevent the
judgment obligee from claiming damages in the same or a separate
action against a third-party claimant who filed a frivolous or plainly
spurious claim.
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 required, and in case the sheriff or levying officer is sued for
damages as a result of the levy, he shall be represented by the Solicitor
General and if held liable therefor, the actual damages adjudged by the
court shall be paid by the National Treasurer out of such funds as may
be appropriated for the purpose. (17a)
SEC. 17. Penalty for selling without notice, or removing or defac-
ing notice. - An officer selling without the notice prescribed by Section
15 of this Rule shall be liable to pay punitive damages in the amount of
five thousand (P5,000.00) pesos to any person injured thereby, in addi-
tion to his actual damages, both to be recovered by motion in the same
action; and a person willfully removing or defacing the notice posted, if
done before the sale, or before the satisfaction of the judgment if it be
satisfied before the sale, shall be liable to pay five thousand (P5,000.00)
pesos to any person injured by reason thereof, in addition to his actual
damages, to be recovered by motion in the same action. (19a)
SEC. 18. No sale if judgment and costs paid. -At any time before
the sale of property on execution, the judgment obliger may prevent
the sale by paying the amount required by the execution and the costs
that have been incurred therein. (20a)
SEC. 19. How property sold on execution; who may direct manner
and order of sale. - All sales of property under execution must be
made at public auction, to the highest bidder, to start at the exact time
fixed in the notice. After sufficient property has been sold to satisfy the
execution no more shall be sold and any excess property or proceeds
of the sale shall be promptly delivered to the judgment obliger or his
authorized representative, unless otherwise directed by the j~d~ment
or order of the court. When the sale is of real property, consisting of
several known lots, they must be sold separately; or, when a portion
of such real property is claimed by a third person, he may require it to
459
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
be sold separately. When the sale is of personal property capable
manual delivery, it must be sold within view of those attending the same
and in such parcels as are likely to bring the highest price. The judgment
obliger, if present at the sale, may direct the order in which property,
or personal, shall be sold, when such property consists of sever~I known
lots or parcels which can be sold to advantage separately. Neither the
officer conducting the execution sale, nor his deputies, can become
purchaser, nor be interested directly or indirectly in any purchase
such sale. (21a)
SEC. 20. Refusal of purchaser to pay. - If a purchaser refuses to
pay the amount bid by him for property struck off to him at a sale under
execution, the officer may again sell the property to the highest bidder
and shall not be responsible for any loss occasioned thereby; but the
court may order the refusing purchaser to pay into the court the amount
of such loss, with costs, and may punish him for contempt if he disobeys
the order. The amount of such payment shall be for the benefit of the
person entitled to the proceeds of the execution, unless the execution
has been fully satisfied, in which event such proceeds shall be for the
benefit of the judgment obligor. The officer may thereafter reject any
subsequent bid of such purchaser who refuses to pay. (22a)
SEC. 21. Judgmentobligee as purchaser. - When the purchaser
is the judgment obligee, and no third-party claim has been filed, he
need not pay the amount of the bid if it does not exceed the amount of
his judgment. If it does, he shall pay only the excess. (23a)
SEC. 22. Adjournment of sale. - By written consent of the
judgment obliger and obligee, or their duly authorized representatives,
the officer may adjourn the sale to any date and time agreed upon by
them. Without such agreement, he may adjourn the sale from day to
day if it becomes necessary to do so for lack of time to complete the
safe on the day fixed in the notice or the day to which it was adjourned.
(24a)
. SEC. 23. Conveyance to purchaser of personal property capable
of manual delivery._ - When the purchaser of any personal property,
capable of manual delivery, pays the purchase price, the officer making
the safe must deliver the property to the purchaser and, if desired,
execute and deliver to him a certificate of sale. The sale conveys to the
purchaser all the rights which the judgment obligor had in such property
as of the date of the levy on execution or preliminary attachment. (25a)
460
APPENDIX A
RULES OF CIVIL PROCEDURE
of
SEC. 24. Conveyance to purchaser of personal property not
capable of manual delivery. -When the purchaser of any. personal
property, not capable of manual delivery, pays the purchase price, the
real officer making the sale must execute and deliver to the purchaser a
certificate of sale. Such certificate conveys to the purchaser all the
rights which the judgment obliger had in such property as of the date of
a the levy on execution or preliminary attachment. (26a)
at
. . SEC. 25. Conveyanceof real property; certificate thereof giver
to purchaser and filed with registry of deeds. - Upon a sale of real
property, the officer must give to the purchaser a certificate of sale
containing:
(a) A particular description of the real property sold; ·
(b) The price paid for each distinct lot or parcel; ·.
(c) The whole price paid ~y him; and
'
(d) A statement that the right of redemption expires one (1)
, year from the date of the registration of the certificate of sale.
Such certificate must be registered in the registry of deeds of the
place where the property is situated. (27a) ·
SEC. 26. Certificate of sale where property claimed by third
person. - When a property sold by virt_ue of a writ of exec_ution has
been claimed by a third person, the certificate of s~le to be issued by
the sheriff pursuant to Sections 23, 24 and _25 of this ~ule shall make
express mention of the existence of such third-party claim. (28a) .
SEC. 27. Who may redeem real property so sold. - Real property
sold as provided in the last preceding section, or a~y part ther~of sold
separately, may be redeemed in the manner heretnatter.provlded, by
the following persons: · '
(a) The judgment obliger, or his successor-in-interest in
the whole or any part of the property; and ..
· (b) A creditor having a lien b_y virtue of an attachment,
· judgment or mortgage on. the property sold, or on some part
· '' · thereof, subsequent to the lien under which th~ property was sold,
Such redeeming creditor is termed a redemptioner. (29a)
SEC. 28. Time and manner ot; and amountspar_able on, suc~es-
sive ~edemptions;notice to be given and.filed. -:=-- The judgment obhgor,
461
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
or redemptioner, may redeem the property from the purchaser, at any
time within one (1) year from the date of the regist~ation of the ce~ificate
of sale, by paying the purchaser the ar,:iount ?~
his purchase: with one
per centum per month interest thereon m additlon, up to the time of ~e-
demption, together with the amount of any assessments or t~xes which
the purchaser may have paid thereon after purchase, and interest on
such last named amount at the same rate; and if the purchaser be also
a creditor having a prior lien to that of the redemptioner, other than the
judgment under which such purchase was made, the amount of such
other lien, with interest.
Property so redeemed may again be redeemed within sixty (60)
days after the last redemption upon payment of the sum paid on the last
redemption, with two per centum thereon in addition, and the amount
of any assessments or taxes which the last redemptioner may have
paid thereon after redemption by him, with interest on such last-named
amount, and in addition, the amount of any liens held by said last
redemptioner prior to his own, with interest. The property may be again,
and as often as a redemptioner is so disposed, redeemed from any
previous redemptioner within sixty (60) days after the last redemption,
on paying the sum paid on the last previous redemption, with two per
centum thereon in addition, and the amounts of any assessments or
taxes which the last previous redemptioner paid after the redemption
thereon, with interest thereon, and the amount of any liens held by the
last redemptioner prior to his own, with interest.
Written notice of any redemption must be given to the officer who
made the sale and a duplicate filed with the registry of deeds of the
place, and if any assessments or taxes are paid by the redemptioner or
if he has or acquires any lien other than that upon which the redemption
was made, notice thereof must in like manner be given to the officer and
filed with the registry of deeds; if such notice be not filed, the property
may be redeemed without paying such assessments taxes or liens.
(30a) ' '
.
=
SEC. 29. Effect of redemption by judgment obligor, and a cer-
tificate to delivered and recorded thereupon; to whom payments
on redemption made. - If the judgment obligor redeems, he must
make th~ same payments as are required to effect a redemption by a
re~emptioner, whereupon, no further redemption shall be allowed and
~e is restored to his estate. The person to whom the redemption payment
is made must execute and deliver to him a certificate of redemption
)
462
APPENDIX A
RULES OF CIVIL PROCEDURE
acknowledged before a notary public or other officer authorized to take
acknowle~gments of conveyances of real property. Such certificate
mu.st be filed and recorded in the registry of deeds of the place in
which the property is situated, and the registrar of deeds must note
the record thereof on the margin of the record of the certificate of sale.
The payments mentioned in this and the last preceding sections may
be made to the purchaser or redemptioner, or for him to the officer who
made the sale. (31a)
SEC. 30. Proof required of redemptioner. -A redemptioner must
produce to the officer, or person from whom he seeks to redeem, and
serve with his notice to the officer a copy of the judgment or final order
under which he claims the right to redeem, certified by the clerk of the
court wherein the judgment or final order is entered; or, if he redeems
upon a mortgage or other lien, a memorandum of the record thereof,
certified by the registrar of deeds; or an original or certified copy of any
assignment necessary to establish his claim; and an affidavit executed
by him or his agent, showing the amount then actually due on the lien.
(32a)
SEC. 31. Manner of using premises pending redemption; waste
restrained. - Until the expiration of the time allowed for redemption,
the court may, as in other proper cases, restrain the commission of
waste on the property by injunction, on the application of the purchaser
or the judgment obligee, with or without notice; but it is not waste for a
person in possession of the property at the time of the sale, or entitled
to possession afterwards, during the period allowed for redemption, to
continue to use it in the same manner in which it was previously used; or
to use it in the ordinary course of husbandry; or to make the necessary
repairs to buildings thereon while he occupies the property. (33a)
SEC. 32. Rents, earnings and income of property pending
redemption. - The purchaser or a redemptioner shall not be entitled to
receive the rents, earnings and income of the property sold on execu-
tion or the value of the use and occupation thereof when such property
is i~ the possession of a tenant. All rE~nts, earnings and incom~ derived
from the property pending re?emp.bon shall belonq to the Judgment
obligor until the expiration of his period of redemption. (34a)
SEC. 33. Deed and possession to be given at expirat~on of
redemption period· by whom executed or given. - If no redemption be
made within one (11) year from the date of the registration of the ~ertificate
of sale, the purchaser is entitled to a conveyance and possession of the
463
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
property; or, if so redeemed whenever sixty (6?) days have_ elapsed and
no other redemption has been made, and notice there~f g1ve_n. and the
time for redemption has expired, the last redemptioner rs ent1tl_ed to the
conveyance and possession; but in all cases the judgment obh~or s~all
have the entire period of one (1) year from the date of the reqistration
of the sale to redeem the property. The deed shall be exec_uted by the
officer making the sale or by his successor in office, and ~n the latter
case shall have the same validity as though the officer making the sale
had continued in office and executed it.
Upon the expiration of the right of redemption, the pu_rchas~~ or
redemptioner shall be substituted to and acquire all the rights, title,
interest and claim of the judgment obliger to the property as of the
time of the levy. The possession of the property shall be give_n to the
purchaser or last redemptioner by the same offi~er unless a ~hird party
is actually holding the property adversely to the Judgment obhgor. (35a)
SEC. 34. Recovery of price if sale not effective; revival of judg-
ment. - If the purchaser of real property sold on execution, or his
successor in interest, fails to recover the possession thereof. or is
evicted therefrom, in consequence of irregularities in the proceedings
concerning the sale, or because the judgment has been reversed or
set aside, or because the property sold was exempt from execution, or
because a third person has vindicated his claim to the property, he may
on motion in the same action or in a separate action recover from the
judgment obligee the price paid, with interest, or so much thereof as
has not been delivered to the judgment obligor; or he may, on motion,
have the original judgment revived in his name for the whole price with
interest, or so much thereof as has been delivered to the judgment
obligor. The judgment so revived shall have the same force and effect
as an original judgment would have as of the date of the revival and no
more. (36a)
SEC. 35. Right to contribution or reimbursement. - When prop-
erty liable to an execution against several persons is sold thereon, and
more than a due proportion of the judgment is satisfied out of the pro-
ceeds of the sale of the property of one of them, or one of them pays.
v.Ti.hout a sale, more than his proportion, he may compel a contribution
from the others; and when a judgment is upon an obligation of one of
them, as security for another, and the surety pays the amount, or any
part thereof, either by sale of his property or before sale, he may com-
pel re;>aymem from the principaJ. (37a)
464
APPENDIX A
RULeS OF CIVIL PROCEDURE
~EC. 36. Examination of judgment obligor when judgment
unsatisfied. -:- When the return of a writ of execution issued against
property of a Judgment obliger, or any one of several obligors in the same
judgment, shows that the judgment remains unsatisfied in whole or in
part, the judgment obligee, at any time after such return' is made, shall
be ent!tled to an order from the court which rendered the said judgment,
requiring such judgment obligor to appear and be examined concerning
his property and income before such court or before a commissioner
appointed by it, at a specified time and place; and proceedings may
thereupon be had for the application of the property and income of
the judgment obligor towards the satisfaction. of the judgment. But
no judgment obligor shall be so required to appear before a court or
commissioner outside the province or city in which such obligor resides
or is found. (38a)
SEC. 37. Examination of obligor of judgment obligor. - When
the return of a writ of execution against the property of a judgment
obligor shows that the judgment remains unsatisfied, in whole or in
part, and upon proof to the satisfaction of the court which issued the
writ, that a person, corporation, or other juridical entity has property
of such judgment obligor or is indebted to him, the court may, by an
order, require such person, corporation, or other juridical entity, or any
officer or member thereof, to appear before the court or a commissioner
appointed by it, at a time and place within the province or city where
such debtor resides or is found, and be examined concerning the same.
The service of the order shall bind all credits due the judgment obliger
and all money and property of the judgment obligor in the possession or
in the control of such person, corporation, or juridical entity from the time
of service; and the court may also require notice of such proceedings
to be given to any party to the action in such manner as it may deem
proper. (39a)
SEC. 38. Enforcement of attendanceand conduct of examination.
-A party or other person may be compelled, by an order or subpoena,
to attend before the court or commissioner to testify as provided in the
two preceding sections, and upon failure to obey such ?rde~ or subp~?na
or to be sworn or to answer as a witness or to subscribe his deposition,
may be punished for contempt as in other cases. Examinations shall
not be unduly prolonged, but the proceedings may ?e ~djo~rned from
time to time, until they are complet~. If the exa!111~ation rs before a
commissioner, he must take it in writing and certify 1~ t~ the court. All
examinations and_ answers before a court or cornrrussioner must be
465
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
under oath, and when a corporation or other juridical entity answers,
it must be on the oath of an authorized officer or agent thereof. (40a)
SEC. 39. Obligor may pay execution against oblige~. -After a writ
of execution against property has been issued, a pers~n rndebte~ to the
judgment obligor may pay to the sheriff holding the writ of execution .the
amount of his debt or so much thereof as may be necessary to satisfy
the judgment, in the manner prescribed in Section 9 of this Rule, an~ the
sheriffs receipt shall be a sufficient discharge for the amount ~o paid or
directed to be credited by the judgment obligee on the execution. (41a)
SEC. 40. Order for application of property and income to
satisfaction of judgment.- The court may order any property ~f the
judgment obligor, or money due him, not exempt from exec~t1on, m the
hands of either himself or another person, or of a corporation or other
juridical entity, to be applied to the satisfaction of the judgment, subject
to any prior rights over such property.
If, upon investigation of his current income and expenses, it
appears that the earnings of the judgment obligor for his personal
services are more than necessary for the support of his family, the court
may order that he pay the judgment in fixed monthly installments, and
upon his failure to pay any such installment when due without good
excuse, may punish him for indirect contempt. (42a)
SEC. 41. Appointment of receiver. - The court may appoint a
receiver of the property of the judgment obliger; and it may also forbid a
transfer or other disposition of, or any interference with, the property of
the judgment obliger not exempt from execution. (43a)
SEC. 42. Sale of ascertainable interest of judgment ob/igor in
real estate. - If it appears that the judgment obligor has an interest
in real estate in the place in which proceedings are had, as mortgagor
or mortgagee or otherwise, and his interest therein can be ascertained
without controversy, the receiver may be ordered to sell and convey
such real estate or the interest of the obliger therein; and such sale shall
be conducted in all respects in the same manner as is provided for the
sale of real estate upon execution, and the proceedings thereon shall
be approved by the court before the execution of the deed. (44a)
SEC. 43. Proceedings when indebtedness denied or another
person claims the property.- If it appears that a person or corporation,
alleged to have property of the judgment obligor or to be indebted to
him, claims an interest in the property adverse to him or denies the debt,
466
APPENDIX A
RULES OF CIVIL PROCEDURE
the court may authorize, by an order made to that effect, the judgment
obligee to institute an action against such person or corporation for the
recovery of such interest or debt, forbid a transfer or other disposition
of such interest or debt within one hundred twenty (120) days from
notice of the order, and may punish disobedience of such order as for
contempt. Such order may be modified or vacated at any time by the
court which issued it, or by the court in which the action is brought, upon
such terms as may be just. (45a)
SEC. 44. Entry of satisfaction of judgment by clerk of court. -
Satisfaction of a judgment shall be entered by the clerk of court in the
court docket, and in the execution book, upon the return of a writ of
execution showing the full satisfaction of the judgment, or upon the
filing of an admission to the satisfaction of the judgment executed and
acknowledged in the same manner as a conveyance of real property
by the judgment obligee or by his counsel unless a revocation of
his authority is filed, or upon the endorsement of such admission by
the judgment obligee or his counsel on the face of the record of the
judgment. (46a)
SEC. 45. Entry of satisfaction with or without admission. -
Whenever a judgment is satisfied in fact, or otherwise than upon an
execution, on demand of the judgment obligor, the judgment obliges or
his counsel must execute and acknowledge, or indorse, an admission
of the satisfaction as provided in the last preceding section, and after
notice and upon motion the court may order either the judgment obliges
or his counsel to do so, or may order the entry of satisfaction to be
made without such admission. (47a)
SEC. 46. When principal bound by judgment against surety. -
When a judgment is rendered against a party who stands as surety for
another, the latter is also bound from the time that he has notice of the
action or proceeding, and an opportunity at the surety's request to join
in the defense. (48a)
SEC. 47. Effect of judgments or final orders. - The effect of a
judgment or final order rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific
thing, or in respect to the probate of a will, or the administration
of the estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or ~is
relationship to another, the judgment or final order is conclusive
467
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
upon the title to the thing, the will or administration, or the condition,
status or relationship of the person; however, the probate of a will
or granting of letters of administration shall only be prima facie
evidence of the death of the testator or intestate;
(b} In other cases, the judgment or final order is, with
respect to the matter directly adjudged or as to any other matter
that could have been raised in relation thereto, conclusive between
the parties and their successors in interest by title subsequent to
the commencement of the action or special proceeding, litigating
for the same thing and under the same title and in the same
capacity; and
.
(c) In any other litigation between the same parties or the:lr
successors in interest, that only Is deemed to have been adjudgod
In a former judgment or final order which appears upon Its f cc to
have been so adjudged, or which was actually and n ce rily
Included therein or necessary thereto. (49a)
SEC. 48. Effect of foreign Judgmo11ts or final 01d r . - Tl
of a Judgment or final order of a tribunal of o for lgn country. h
Jurisdiction to render the Judgment or final order Is ns follows:
(a) In case of a Judgment or final ord r upon
thing, the Judgment or final order Is conduslv upon U\ ti
thing; and
(b) In case of a judgment or final ord r og in t
the judgment or final order is presumptive e id n f £:<?1u.:.reid, sha!J be served on the adverse party. (n)
as between the parties and their successors ln int re
subsequent title.
. In either case, the judgment or final order may be , 11 _ Secoofl 9, Ru!:e 41. (n)
evidence of a want of jurisdiction, want of notice to the parl)' co lu ·
fraud, or clear mistake of law or fact. (50a) ' SEC. 5. Appellate court docket and other lawful fees. - Within
APPEALS
Rule 40
APPEAL FROM MUNICIPAL TRIAL COURTS TO THE
REGIONAL TRIAL COURTS
SECTION 1. Where to appeal. -An appeal from a judgment or
final order of a Municipal Trial Court may be taken to the Regional Trial
468
APPENDIX A
l
RULES OF CIVIL PROCEDURE
Cou~ exercising Jurisdiction over the area to which the former pertains.
The title of th_e 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. (n)
SEC. 2. When to appeal. -An appeal may be taken within flfteen
days after notice to the appellant of the Judgment or final order appealed
fro~. Where a record on appeal is required, the appellant shall file a
no~ce of ap~al and a record on appeal within thirty (30) days after
notice of the Judgment or final order.
~ period of. appe~I shall be Interrupted by a timely motion for
new tnal or reconslderatlon. No motion for extension of time to file a
mo ' n for now trial or reconsideration shall be allowed. (n)
SEC. l~ How to nppeal. - The appeal is taken by filing a notice of
11lth lh court lhat rendored the Judgment or final order appealed
T ocuco of appeal shall indicate the parties to the appeal, the
tudl'01T110nl or final ardor or part thoroof appealed from, and state the
dill ho vlng tho tlmollnoss of tho appeal.
A, coro on oppoal shall be required only In special proceedings
' ou , ca of multlple or separate appeals.
The f rm and contents of the record on appeal shall be as provided
;::,.e,cuc·t0 6. Rue 41.
of the notice of appeal, and the record on appeal where
SEC. 4. Perfection of appeal; effect thereof. - The perfection of
the appeal and lhe effect thereof shall be governed by the provisions of
period to, taking an appeal, the appellant shall pay to the clerk of
tne coon which rendered the judgment or final order appealed from the
f amount of the appelJate court docket and other lawful fees. Proof
of paymen thereof shall be transmitted to the appellate court together
·th the original record or the record on appeal, as the case may be. (n)
SEC. 6. Duty of the derk of court. -Within fifteen (15) days from
the perfection of the appeal, the clerk of court or the branch clerk of
court of the lower court shall transmit the original record or the record on
appeal, together with the transcripts and exhibits, which he shall certify
469
 QUESTIONS AND ANSWERS IN APPENDIXA
REMEDIAL LAW RULES OF CIVIL PROCEDURE

as complete, to the proper Regional Trial Court. A copy of hi~ letter of
transmittal of the records to the appellate court shall be furnished the
parties. (n)
SEC. 7. Procedure in the Regional Trial Court. -
(a) Upon receipt of the complete record or the record on
appeal, the clerk of court of the Regional Trial Court shall notify
the parties of such fact.
(b) Within fifteen ( 15) days from such notice. it shall be the
duty of the appellant to submit a memorandum Which shall briefly
discuss the errors Imputed to the lower court, a copy or which au
be f urnlshed by him to the adverse party. Within fifteen {15) d rs
from receipt of the appellant's memorandum, tho oppcll may (1
his memorandum. Failure of the appellant to fil m mo dum
shall be a ground for dismissal of tho oppcol.
(c)Upon the filing of tho memorandum of Ul
the expiration of the period to do so. tho co o h II
submitted for decision. The Reglonol Trlol Court h II d "°'
case on the basis of the enliro rocord of tho pro d Q
the court of origin and such momorondo ro fil . (n)
SEC. 8. Appeal from orders dismissing c Wlllt r tr ,
jurisdiction. - If an appeal is token from nn ord r of th III r
dismissing the case without a trial on them rits, th R i n IT, 1
may affirm or reverse It, as the case moy b . In f ffirn
the ground of dismissal is lack of jurisdiction over th u 1 , In an'J ot the foregoing circumstances, the aggrieved party may file
Regional Trial Court, If it has jurisdiction thereov r, h II try t
the merits as if the case was originally filed with it. In f re.~~=M
the case shall be remanded for further proce ding .
If the case was tried on the merits by the lo r urt
jurisdiction over the subject matter, the Regional Trial Court
shall not dismiss the case if It has original jurisdiction the f ut
decide the case In accordance with the preceding s ·~
prejudice to the admission of amended pleadings and ~nrf'i1rw-·.n.::111
evidence in the interest of justice. (n)
SEC. 9. Applicability of Rule 41. - The other provisions of Rule
41 shall apply to appeals provided for herein Insofar as they are no
inconsistent with or may serve to supplement the provisions of this
Rule. (n)
Rule 41
APPEAL FROM THE REGIONAL TRIAL COURTS
SECTION 1. Subject of appeal. - An appeal may be taken
from a judgment or final order that completely disposes of the case,
or of a particular matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
(a) An order denying a petition for relief or any similar
motK>O sooking relief from judQment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a judgment
b co nt. confossion or compromise on the ground of fraud,
°'
m!!ttnJi,o dur ss. or any other ground vitiating consent;
(o) An ardor or execution;
(f) A Judgment or final order for or against one or more of
., r pait' or In separate claims, counterclaims, cross-claims
d·party complaints, while the main case Is pending, unless
n court al.ow, an appeal therefrom: and
(g) An order dismissing an action without prejudice.
w,~· te special civil action as provided in Rule 65. (As amended
by AM. tto. 01-7-12-SC, effective Dec. 27, 2007)
SEC. 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
oogillaJ j risdiction 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 shaU be required except In special proceedings
and other cases of multiple or separate appeals where the law or
these Rules so require. In such cases, the record on appeal shall
be filed and served in like manner.

471
470
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
(b) Petition for review. - The appeal to the Court of
Appeals in cases decided by the Regional Trial Court in the
exercise of its appellatejurisdiction shall be by petition for review
in accordancewith Rule 42.
(c) Appeal by certiorari. - In all cases where only
questionsof law are raised or involved, the appeal shall be to the
Supreme Court by petition for review on certiorari in accordance
with Rule 45. (n)
SEC. 3. Period of ordinary appeal. - The appeal shall be taken
within fifteen (15) days from notice of the judgment or final order
appealed from. Where a record on appeal is required, the appellants
shall file a notice of appeal and a record on appeal within thirty (30)
days from notice of the judgment or final order. However, an appeal in
habeas corpus cases shall be taken within forty-eight (48) hours from
notice of the judgment or final order appealed from. (As amended·by
AM. No. 01-1-03-SC, 19 June 2001.)
The period of appeal shall be interrupted by a timely motion for
new trial or reconsideration.No motion for extension of time to file a
motion for new trial or reconsiderationshall be allowed. (n)
SEC. 4. Appellate court docket and other lawful fees. ~ Within
the period for taking an appeal, the appellant shall pay to 'the. 'clerk of
the court which renderedthe judgment or final order appealed from, the
full amount of the appellatecourt docket and other lawful fees. Proof of
p~ymento~ ~aid fees shall be transmittedto the appellate court together
with the oriqinalrecord or the record on appeal. (n) · -
. SEC. 5. Notice of appeal. - The notice of appeal sh~II indi~ate.the
parties to the appeal,specify the judgment or final order or part thereat
appealed from, sp~c,fy the court to which the appeal is being taken,
and state the materialdates showing the timeliness of the appeal. (4a)
SEC. 6. Record on appeal; form and· contents thereof. - The
full ~ames of all the parties to the proceedings shall be stated in the
caption of the re~rd on appeal and it shall include the judgment or
fina~ order from which the _appeal is taken and, in chronological order,
copies of only such pleadings, petitions, motions and all interlocutory
orders as are related to the appealed judgment or final order for the
p~oper understandingof the issue involved, together with such data as
will sho~ that the appeal was perfected on time. If an Issue of fact ls
to be raised on appeal, the record on appeal shall include by reference
472
APPENDIX A
RULES OF CIVIL PROCEDURE
all the evidehce, testimonial and documentary,taken upon the issue
inv~l~ed. The reference shall specify the documentary evidence by the
axhlblt numbers or letters by which it was identified when admitted or
offered at the hearing, and the testimonial evidence by the names of
the correspondingwitnesses. If the whole testimonial and documentary
evidence in the. case is to be included, a statement to that effect will
be sufficient without mentioning the names of the witnesses or the
numbers or letters of exhibits.Everyrecord on appeal exceeding twenty
(20) pages must contain a subject index. (6a)
I '•• • '
,_ . SEC. 7. Approval of record. on appeal. -
Upon the filing of the
record on appeal for approvaland if no objection is filed by the appellee
within five (5) days from receipt of a copy thereof, the trial court may
approve it as presented or upon its own motion or at the instance of
the appellee, may direct its amendmentby the inclusion of any omitted
matters which are deemed essentialto the determination of the issue of
law or fact involved in the appeal. If the trial court orders the amendment
o.f the record, the appellant,within the time limited in the order, or such
extension thereof as may be granted, or if no time is fixed by the order
within ten (10) days from receipt thereof, shall redraft the record by
including therein, in their properchronologicalsequence, such additional
matters as the court may have directed him to incorporate, and shall
thereupon submit the redrafted record for approval, upon notice to the
appellee, in like manner as the original draft. (la)
. . . SEC. 8. Joint record on appeal. - Where both parties are
appellants, they may file a joint record on appeal within the time fixed
by Section 3 of .this Rule, or that fixed by the court. (Ba)
· ' SEC. 9. Perfection of appeal; effect thereof. - A party's appeal
by notice of appeal is deemed perfectedas to him upon the filing of the
notice of appeal in due time.
A party's appeal by record on appeal is deemed perfected as to
him wit.h respect to the subject matter thereof upon the approval of the
record on appeal filed in due time.
-, ·' In appeals by notice of appeal, the court loses jurisdiction over
the case upon the perfection. of the appeals filed in due time and the
explratlon of the time to appeal of the other parties. ·
. . In appeals by record on appeal, the court loses jurisdiction only
over the subject matter thereof upon the approval of the records on
473
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
appeal filed in due time and the expiration of the time to appeal of the
other parties.
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 appeal in accordance with
Section 2 of Rule 39, and allow withdrawal of the appeal. (9a)
SEC. 1 O. Duty of clerk of court of the lower court upon perfection
of appeal. - Within thirty (30) days after perfection of all the appeals in
accordance with the preceding section, it shall be the duty of the clerk
of court of the lower court:
(a) To verify the correctness of the original record or the
record on appeal, as the case may be, and to make a certification
of its correctness;
(b) To verify the completeness of the records that will be
transmitted to the appellate court;
(c) If found to be incomplete, to take such measures· as
may be required to complete the records, availing of the authority
that he or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court. .
If the effo_rts to complete the records fail, he shall indicate in his
le~er of trans1!11ttal the exhibits or transcripts not included in the records
berng ~ransmrtted to the appellate court, the reasons for their non-
tran_smrttal, and the steps taken or that could be taken to have them
available.
The_ clerk of court shall furnish the parties with copies of his letter
of transmittal of the records to the appellate court. (1 Oa) - exercise of its appellate jurisdiction may file a verified petition for review
SEC. 11. Transcript. - Upon the perfection f th
clerk shall immediately direct the stenographers con~ern:d
~~=I ::~d
~i~~:~~~~
of th~ casde fiv~ (5) copies of the transcripts of the testimo-
nce re erre to rn the record on appeal The ste h
:~r:::~:1~: ,~: i;~:i:~~hi~d·:;~~:i~~~~·~~c: : ~: ~:~!:p!~
nesses and the pages wherein th . t f
the exhibits and th h ~,r es unonles are found, and a list of
e pages w erein each of them appears to have been
474
APPENDIX A
RULES OF CIVIL PROCEDURE
offered an_d admitted or rejected by the trial court. The transcripts shall
be transm,_tted to the clerk of the trial court who shall thereupon arrange
the same in the order in which the witnesses testified at the trial, and
shall cause the pages to be numbered consecutively. (12a)
SEC.. 12. Transmittal. - The clerk of the trial court shall transmit
to the appellate court the original record or the approved record on
appeal within thirty (30) days from the perfection of the appeal, together
with the proof of payment of the appellate court docket and other lawful
fees, a certified true copy of the minutes of the proceedings, the order
of approval, the certificate of correctness, the original documentary
evidence referred to therein, and the original and three (3) copies of
the transcripts. ·
Copies of the transcripts and certified true copies of the docu-
mentary evidence shall remain in the lower court for the examination of
the parties. (11a)
SEC. 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 proprio or on motion, dismiss the appeal for having
been taken out of time or for non-payment of the docket and other
lawful fees within the reglementary period. (As amended, A.M. No. 00-
2-10-SC, effective May 1, 2000.)
Rule 42
· PETITION FOR REVIEW FROM THE REGIONAL TRIAL
COURTS TO THE COURT OF APPEALS
SECTION 1. How appeal taken; time for filing. -A party desiring
to appeal from a decision of the Regional Trial Court rendered in the
with the Court of Appeals, paying at the same time to the clerk of said
court the corresponding docket and other lawful fees, depositing the
amount of PS00.00 for costs, and furnishing the Regional Trial Court
and the adverse party with a copy of the petition. The petition shall
be filed and served within fifteen (15) days from notice of the decision
sought to be reviewed or of the denial of petitioner's motion for new trial
or reconsideration filed in due time after judgment. Upon proper motion
and the payment of the full amount of the docket and other ·lawful fees
and the deposit for costs before the expiration of the reglementary
475
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
period. the Court of Appeals may grant an additional period of fifteen
(15) days only within which to file the petition for review. No further
extension shall be granted except for the most compelling reason and
in no case to exceed fifteen (15) days. (n)
SEC. 2. Fonn and contents. - The petition shall be filed In seven
legible copies, with the original copy intended for the court being
indicated as such by the petitioner, and shall: (a) state the full names of
the parties to the case, without impleading the lower courts or judges
thereof either as petitioners or respondents; (b) indicate the specific
material dates showing that it was filed on time; (c) set forth concisely
a statement of the matters involved, the issues raised, the specification
of errors of fact or law, or both, allegedly committed by the Regional
Trial Court, and the reasonsor arguments relied upon for the allowance
of the appeal; (d) be accompanied by clearly legible duplicate originals
or true copies of the judgments or final orders of both lower courts,
certified correct by the clerk of court of the Regional Trial Court, the
requisite number of plain copies thereof and of the pleadings and other
material portions of the record as would support the allegations·of the
petition.
The petitioner shall also submit together with the petition a
certification under oath that he has not theretofore commenced any
other action involving the same issues in the Supreme Court, the Court
~f Appe~ls or differentdivi~ionsthereof, or any other tribunal or agency;
if there rs such other action or proceeding, he must state the status
of the same; and if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or any other tribunal
or agency, he undertakesto promptly inform the aforesaid courts and
other tribunal or agencythereof within five (5) days therefrom. (n)
. SEC. 3. E_~ect of failure to comply with requirements. - The
fadure ?f 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. (n)
SEC. 4. Action on the petition. - The Court of Appeals may
req~lre 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
476
APPENDIX A
RULES OF CIVIL PROCEDURE
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. (n)
SEC. 5. Contents of comment. - The comment of the respondent
shall be filed in seven (7) legible copies, accompanied by certified
true copies of such material portions of the record referred to therein
together with other supporting papers and shall: (a) state whether or
not he accepts the statement of matters involved in the petition; (b)
point out such insufficiencies or inaccuracies as he believes exist in
petitioner's statement of matters involved but without repetition; and (c)
state the reasons why the petition should not be given due course. A
copy thereof shall be served on the petitioner. (n)
SEC. 6. Due course. - If upon the filing of the comment or such
other pleadings as the court may allow or require, or after the expiration
of the period for the filing thereof without such comment or pleading
having been submitted, the Court of Appeals finds prima facie that the
lower court has committed an error of fact or law that will warrant a
reversal or modification of the appealed decision, it may accordingly
give due course to the petition. (n)
SEC. 7. Elevation of record. - Whenever the Court of Appeals
d.eems it necessary, it may order the clerk of court of the Regional Trial
Court to elevate the original record of the case including the oral and
documentary evidence within fifteen (15) days from notice. (n)
SEC. 8. Perfection of appeal; effect thereof. -
(a) 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.
The Regional Trial Court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and the expi-
ration of the time to appeal of the other parties.
However, before the Court of Appeals gives due course to
the petition, the RegionalTrial Court may issue orders for the pro-
tection 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 ap-
peal In accordancewith Section 2 of Rule 39, and allow withdraw-
al of the appeal. (9a, R41)
477
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
(b) Except in civil cases decided under the Rules on
SummaryProcedure, the appeal shall stay the judgment or final
order unless the Court of Appeals, the law, or these Rules shall
provideotherwise.(n)
SEC. 9. Submission for decision. - If the petition is given due
course, the Court of Appeals may set the case for oral argument or
requirethe partiesto submit memorandawithin a period of fifteen (15)
days from notice. The case shall be deemed submitted for decision
upon the filing of the last pleading or memorandumrequired by these
Rulesor by the court itself. (n)
Rule 43
APPEALS FROM THE COURT OF TAX APPEALS
AND QUASI-JUDICIAL AGENCIES
TO THE COURT OF APPEALS
. SECTION 1. Scope. - This Rule shall apply to appeals from
judgmentsor final ordersof the Court of Tax Appeals and from awards,
judqrnents, final orders or resolutionsof or authorized by any quasi-
judicial agen_cy in the exercise of its quasi-judicial functions. Among
these agencies are the Civil Service Commission, Central Board of
Assessn:ient Appeals, Securitiesand Exchange Commission, Office of
th_e_President,_Land RegistrationAuthority,Social Security Commission,
Crvrf AeronauticsBoard, Bureau of Patents, Trademarks and Techno-
logy Transfer, ~ational ElectrificationAdministration, Energy Regula-
tory ~oard, NationalTelecommunicationsCommission, Department of
Agranan Reform under RepublicAct No. 6657 Government Service
:nsura_nceSystem, EmployeesCompensationC~mmission,Agricultural
;venb?n~ Board, Insurance Commission, Philippine Atomic Energy
C omm!ss!on, Board of Investments, Construction Industry Arbitration
omrrassron, and voluntaryarbitratorsauthorizedby law. (n)
SEC. 2. Cases not covered. - This Rule shall not a .
~;nts or final orders issued under the Labor Code of th/i~l~~i~~;~
SEC. 3. Where to appeal _ A .
1 supporting papers; and (d) contain a sworn certification against forum
t~~:~ to the Courtof Appeals within th~ ;~~~~ a~~di~rt~~~~~~e~8:r!~
~ue~i~~~:~;~~~:~:e1 :~;~J involvesquestionsof fact, of law, or mixed
478
APPENDIX A
RULES OF CIVIL PROCEDURE
SEC. 4. Period of appeal. - The appealshall be taken within fifteen
(15) days from notice of the award,judgment, final order or resolution,
or f~om the ?~te of its last publication, if publication is required by law
for its effectivlty, or of the denial of petitioner's motion for new trial or
reconsideration duly filed in accordance with the governing law of the
court or agency a quo. Only one (1) motion for reconsideration shall
~e allowed. Upon proper motion and the payment of the full amount
pf the docket fee before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen (15) days
only within which to file the petition for review. No further extension
shall be granted except for the most compelling reason and in no case
to exceed fifteen (15) days. (n)
SEC. 5. How appeal taken. - Appeal shall be taken by filing a
_verified petition for review in seven (7) legible copies with the Court of
Appeals, with proof of service of a copy thereof on the adverse party
and on the court or agency a quo. The original copy of the petition
intended for the Court of Appeals shall be indicated as such by the
petitioner.
Upon the filing of the petition, the petitioner shall pay to the clerk
of court of the Court of Appeals the docketing and other lawful fees
and deposit the sum of P500.00 for costs. Exemption from payment
of docketing and other lawful fees and the deposit for costs may be
granted by the Court of Appeals upon a verified motion setting forth
valid grounds therefor. If the Court of Appeals denies the motion, the
petitioner shall pay the docketing and other lawful fees and deposit for
costs within fifteen (15) days from notice of the denial. (n)
SEC. 6. Contents of the petition. - The petition for review shall:
state the full names of the parties to the case, without impleading the
court or agencies either as petitioners or respondents; (b) contain a
concise statement of the facts and issues involved and the grounds
relied upon for the review; (c) be accompanied by a clearly legible
duplicate original or a certified true copy of the award, judgment, final
order or resolution appealed from, together with certified true copies
of such material portions of the record referred to therein and other
shopping as provided in the last paragraph of Section 2, Rule 42. The
petition shall state the specific material dates showing that it was filed
within the period fixed herein. (2a)
479
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. 7. 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. (n)
SEC. 8. Action on the petition. - 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 unsubstantial to
require consideration. (6a)
SEC. 9. Contents of comment. - The comment shall be filed
within ten (10) days from notice in seven (7) legible copies and
accompanied by clearly legible certified true copies of such material
portions of the record referred to therein together with other supporting
papers. The comment shall: (a) point out insufficiencies or inaccuracies
in petitioner's statement of facts and issues; and (b) state the reasons
why the petition should be denied or dismissed. A copy thereof shall be
served on the petitioner, and proof of such service shall be filed with the
Court of Appeals. (9a)
SEC. 10. Due course. - If upon the filing of the comment or such
other pleadings or documents as may be required or allowed by the
Court of Appeals or upon the expiration of the period for the filing thereof,
and on the basis of the petition or the records the Court of Appeals finds
prima facie that the court or agency concerned has committed errors
of fact or law that would warrant reversal or modification of the award
judgment, final order or resolution sought to be reviewed, it may giv~
due course to the petition; otherwise, it shall dismiss the same. The
findings ?f fa~t of the court or agency concerned, when supported by
substantial evidence, shall be binding on the Court of Appeals. (n)
. SEC. 11. Transmittal of record. - Within fifteen (15) days from
notice tha.t the petition has been given due course, the Court of Appeals
ma~ requir~ the court or agency concerned to transmit the original or a
leg~ble certified true copy of the entire record of the proceeding under
review. T~e record to be transmitted may be abridged by agreement
of all_ parties to the proce~ding. The Court of Appeals may require or
permit subsequent correction of or addition to the record. (Ba)
480
· APPENDIX A
RULES OF CIVIL PROCEDURE
.· SEC. 12. Effect of appeal. - The appeal shall not stay the award,
Judgment, final order or resolution sought to be reviewed unless the
Court of Appeals shall direct otherwise upon such terms as it may deem
just. (10a)
SEC. 13. Submission for decision. - If the.petition is given due
course, the Court of Appeals may set the case for oral argument or
require the parties to submit memoranda within a period of fifteen (15)
days from notice. The case shall be deemed submitted for decision
upon the filing of the last pleading or memorandum required by these
Rules or by the Court of Appeals. (n)
PROCEDURE IN THE COURT OF APPEALS
Rule 44
ORDINARY APPEALED CASES
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)
SEC. 2. Counsel and guardians. - The counsel and guardians ad
/item of the parties in the court of origin shall be respectively considered
as their counsel and guardians ad /item 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)
SEC. 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. (3a, R46) ·
SEC. 4. Docketing of case. - Upon receiving the original record
or the record on appeal and the accompanying documents and exhibits
transmitted by the lower court, as well as the proof of payment of the
docket and other lawful fees, the clerk of court of the Court of Appeals
shall docket the case and notify the parties thereof. (4a, R46)
Within ten (10) days from receipt of said notice, the appellant, in
appeals by record on appeal, shall file with the· clerk of court seven (7)
481
 QUESTIONS AND ANSWERS IN
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clearly legible copies of the approved record on appeal, together with
the proof of service of two (2) copies thereof upon the appellee.
Any unauthorized alteration, omission or addition in the approved
record on appeal shall be a ground for dismissal of the appeal. (n)
SEC. 5. Completion of record. - Where the record of the docketed
case fs incomplete, the clerk of court of the Court of Appeals shall so
inform said court and recommend to it measures necessary to com-
plete the record. It shall be the duty of said court to take appropr(ate
action towards the completion of the record within the shortest possible
time. (n)
SEC. 6. Dispensing with complete record. - Where the comple-
tion of the record could not be accomplished within a sufficient period al-
lotted for said purpose due to insuperable or extremely difficult causes,
the court, on its own motion or on motion of any of the parties, may
declare that the record and its accompanying transcripts and exhibits
so far available are sufficient to decide the issues raised in the appeal,
and shall issue an order explaining the reasons for such declaration. (n)
SEC. 7. Appellant's brief. - It shall be the duty of the appellant to
file with the court, within forty-five (45) days from receipt of the notice
of the clerk that all the evidence, oral and documentary, are attached to
the record, seven (7) copies of his legibly typewritten, mimeographed
or printed brief, with proof of service of two (2) copies thereof upon the
appellee. (10a, R46)
SEC. 8. Appellee's brief. -Within forty-five (45) days from receipt
of the appellant's brief, the appellee shall file with the court seven (7)
copies of his legibly typewritten, mimeographed or printed brief, with
proof of service of two (2) copies thereof upon the appellant. (11 a, R46)
SEC. 9. Appellant's reply brief. - Within twenty (20) days from
receipt of the appellee's brief, the appellant may file a reply brief
answering points in the appellee's brief not covered in his main brief.
(12, R46)
SEC. 10. Time for filing memoranda in special cases. - In
certiorari, prohibition, mandamus, quo warranto and habeas corpus
~s~s, the parties shall file, in lieu of briefs, their respective memoranda
w1t~1n ~ non-extendible period of thirty (30) days from receipt of the
~ot1ce issued by the clerk that all the evidence, oral and documentary,
is already attached to the record. (13a, R46)
482
· · APPENDIXA
RULES OF CIVIL PROCEDURE
The failure of the appellant to file his memorandum within the
period therefor may be a ground for dismissal of the appeal. (n)
SEC. 11. Several appellants or appellees or several counsel for
each party. - Where there are several appellants or appellees, each
counsel representing one or more but not all of them shall be served
with only one copy of the briefs. When several counsel represent one
appellant or appellee, copies of the brief may be served upon any of
them. (14a, R46) · · ·
SEC. 12. Extension of time for filing briefs. ~ Extension of time
for the filing of briefs will not be allowed, except for good and sufficient
cause, and only if the motion for extension is filed before the expiration
of the time sought to be extended. (15, R46)
SEC. 13. Contents of appellant's brief. - The appellant's brief
shall contain, in the order herein indicated, the following:
(a) A subject index of the matter in the brief with a dlqest of
the arguments and page references, and a table of cases alpha-
betically arranged, textbooks and statutes cited with references
to the pages where they are cited;
(b) An assignment of errors intended to be urged, which
errors shall be separately, distinctly and concisely stated without
repetition and numbered consecutively;
(c) Under the heading "Statement of the Case," a clear
and concise statement of the nature of the action, a summary of
the proceedings, the appealed rulings and orders of the court,
the nature of the judgment and any other matters necessary to
an understanding of the nature of the controversy, with page
references to the record;
(d) Under the·heading "Statement of Facts," a clear and
concise statement in a narrative form of the facts admitted by both
parties and of those in controversy, together with the substance
of the proof relating thereto in sufficient detail to make it clearly
intelligible, with page references to the record;
( e) A clear and concise statement of the issues of fact or
law to be submitted to the court for its judgment;
(f) Under the headinq "Argument," the appellant's argu-
ments on each assignment of error with page references to the
483
 QUESTIONS AND ANSWERS IN
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record. The authorities relied upon shall be cited by the page of
the report at which the case begins and the page of the report on
which the citation is found;
(g) Under the heading "Relief," a specification of the order
or judgment which the appellant seeks; and
(h) In cases not brought up by record on appeal, the
appellant's brief shall contain, as an appendix, a copy of the
judgment or final order appealed from. (16a, R46)
SEC.14. Contents of appe/lee's brief. - The appellee's brief shall
contain, in the order herein indicated, the following:
(a) A subject index of the matter in the brief with a digest of
the arguments and page references, and a table of cases alpha-
betically arranged, textbooks and statutes cited with references to
the pages where they are cited;
(b) Under the heading "Statement of Facts," the appellee
shall state that he accepts the statement of facts in the appellant's
brief, or under the heading "Counter-Statement of Facts." he shall
point out such insufficiencies or inaccuracies as he believes extst
in the appellant's statement of facts with references to the pages
of the record in support thereof, but without repetition of matters
in the appellant's statement off acts; and
(c) Under the heading "Argument,· the appellee shall set
forth his arguments in the case on each assignment of error with
page references to the record. The authorities relied on shall be
cited by the page of the report at which the case begins and the
page of the report on which the citation is found. (17a, R46)
SEC. 15. Questions that may be raised on appeal. - Whether
or not the appellant has filed a motion for new trial in the court below,
he may include in his assignment of errors any question of law or fact
that has been raised in the court below and which is within the issues
framed by the parties. (18, R46)
Rule 45
APPEAL BY CERnORARJ TO THE SUPREME COURT
. . SECTIOU 1. FiJ:ng of petition with Supreme Court -A party de-
s ng 1D ~-alby cer.J!xari from a · udgment, final order or resoarton
· APPENDIX A
RULES OF CIVIL PROCEDURE
of the C?urt of ~ppeals, the Sandiganbayan, the Court of Tax Appeals,
the Regro~al Tnal Court or other courts, whenever authorized by law,
~ay ~le wrth t~~ Supreme Court a verified petition for review on cer-
~1~ran. _The petrtron may include an application for a writ of preliminary
inJunctron or other provisional remedies and shall raise only questions
of law, which must be distinctly set forth. The petitioner may seek the
same provisional remedies by verified motion filed in the same action or
proceeding at any time during its pendency. (As amended by A.M. No.
07-7-12-SC, effective Dec. 27, 2007.)
SEC. 2. Time for filing; extension. - The petition shall be filed
within fifteen (15) days from notice of the judgment or final order or
resolution appealed from, or of the denial of the petitioner's motion for
new trial or reconsideration filed in due time after notice of the judgment.
On motion duly filed and served, with full payment of the docket and
other lawful fees and the deposit for costs before the expiration of the
reglementary period, the Supreme Court may for justifiable reasons
grant an extension of thirty (30) days only within which to file the petition.
(ta. Sa)
SEC. 3. Docket and other lawful fees; proof of service of petition.
- Unless he has theretofore done so, the petitioner shall pay the
corresponding docket and other lawful fees to the clerk of court of the
Supreme Court and deposit the amount of ~500.00 for costs at the
time of the filing of the petition. Proof of service of a copy thereof on
the lower court concerned and on the adverse party shall be submitted
together wtth the petition. (1a)
SEC. 4. Contents of petition. - The petition shall be filed in
eighteen (18) copies. with the original copy intended for the court
being indicated as such by the petitioner, and shall: (a) state the full
name of the appealing party as the petitioner and the adverse party
as respondent, without impleading the lower courts or judges thereof
either as petitioners or respondents; (b) indicate the material dates
showing when notice of the judgment or final order or resolution subject
thereof was received, when a motion for new trial or reconsideration,
if any, was filed and vlhen notice of the denial thereof was received;
(c) set forth concisely a statement of the matters involved. and the
reasons or arguments relied on for the allowance of the petition; (d) be
accompanied by a dearly legible duplicate original, or a certified true
oopy of the judgment or final order or resolution certified by the derk
of court of the court a quo and the requisite number of plain copies
485
 QUESTIONS AND ANSWERS IN
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thereof, and such material portions of the record as would support the
petition; and (e) contain a sworn certific?tion against forum shopping
as providedin the last paragraphof Section 2, Rule 42. (2a)
SEC. 5. Dismissal or denial of petition. - The failure of the
petitionerto comply with any of the foregoing requirements regarding
the payment of the docket and other lawful fees, deposit for costs,
proof of service of the petition, and the contents of and the documents
which should accompanythe petition shall be sufficient ground for the
dismissalthereof.
The Supreme Court may on Its own Initiative deny the petition on
the ground that the appeal is without merit, or is prosecuted manifestly
for delay, or that the questions raised therein are too unsubstantial to
requireconsideration. (3a)
SEC. 6. Review discretionary. - 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 therefor. The following, while
neither controlling nor fully measuring the court's discretion, indicate
the characterof the reasonswhich will be considered:
(a) When the court a quo has decided a question of
substance, not theretoforedetermined by the Supreme Court, or
has decided it in a way probably not in accord with law or with the
applicabledecisionsof the Supreme Court; or
(b) When the court a quo has so far departed from the
acceptedand usual course of judicial proceedings,or so far sanc-
tioned such departure by a lower court, as to call for an exercise
of the power of supervision.(4a)
~EC. 7. Pleadings and documents that may be required;
san~flo~s. - For p~rposesof determining whether the petition should
be dismissedor denied pursuantto Section 5 of this Rule or where the
petition is _given due course under Section 8 hereof, the S~preme Court
may require or allow the filing of such pleadings, briefs, memoranda
or documents a~. it may. deem necessary within such periods and
under such_ cond,t,o~sas _,t may consider appropriate, and impose the
correspond_mg sanctions m case of non-filing or unauthorized filing of
such pleadings and documents or non-compliance with the conditions
therefor. {n)
. SEC. 8. Due course; elevation of records. - If the petition is
given due course, the Supreme Court may require the elevation of the
486
APPENDIX A
RULES OF CIVIL PROCEDURE
complete record of the case or specified parts thereof within fifteen ( 15)
days from notice. (2a)
SEC. 9. Rule applicable to both civil and criminal cases. - The
mode of appeal prescribedin this Rule shall be applicable to both civil
and criminal cases, except in criminal cases where the penalty imposed
·Is death, reclusion perpetua or life imprisonment. (n)
Rule 46
ORIGINAL CASES
SECTION 1. Title of cases. - In all cases originally filed in the
Court of Appeals, the party instituting the action shall be called the
petitioner and the opposing party the respondent. (1 a)
SEC. 2. To what actions applicable. - This Rule shall apply to
original actions for certiorari, prohibition, mandamus and quo warranto.
Except as otherwise provided, the actions for annulment of
judgment shall be governed by Rule 47, for certiorari, prohibition and
mandamus by Rule 65, and for quo warranto by Rule 66. (n)
SEC. 3. Contents and filing of petition; effect of non-compliance
with requirements. - The petition shall contain the full names a_nd
actual addresses of all the petitioners and respondents, a concise
statement of the matters involved, the factual background of the case,
arid the grounds relied upon for the relief prayed for.
· .. In actions filed under Rule 65, the petition shall further indicate the
material dates showing when notice of the judgment or final order or
resolution subject thereof was received, when a motion for new trial or
reconsideration, if any, was filed and when notice of the denial thereof
was received. (Cir. No. 39-98.)
It shall be filed in seven (7) clearly legible copies together with
proof of service thereof on the respondent wit~ . the original copy
intended for the court indicated as such by the petitioner, and shall be
accompanied by a clearly legible duplicate original or certified true co~y
of the judgment, order, resolution,or ruling subject thereof, such matenal
portions of the record as are referred to therein, and other docu~ents
relevant or pertinent thereto. The certification sh~II be accomphs~ed
by the proper clerk of court or by his duly authonzed representative,
487
 QUESTIONS AND ANSWERS IN
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or by the proper officer of the court, tribunal, agency or office involved
or by his duly authorized representative. The other requisite number
of copies of the petition shall be accompanied by clearly legible plain
copies of all documents attached to the original.
The petitioner shall also submit together with the petition a sworn
certification that he has not theretofore commenced any other action
involving the same issues in the Supreme Court, the Court of Appeals
or different divisions thereof, or any other tribunal or agency; if there is
such other action or proceeding, he must state the status of the same; ·
and if he should thereafter learn that a similar action or proceeding
has been filed or is pending before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any other tribunal or agency,
he undertakes to promptly inform the aforesaid courts and other tribunal
or agency thereof within five (5) days therefrom.
The petitioner shall pay the corresponding docket and other lawful
fees to the clerk of court and deposit the amount of PS00.00 for costs
at the time of the filing of the petition.
The failure of the petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of the petition.
(n)
SEC. 4. Jurisdiction over person of respondent, how acquired. -
The court ~hall a~uire ]urisdiction over the person of the respondent
by the service on hrm of its order or resolution indicating its initial action
on the petition or by his voluntary submission to such jurisdiction. (n)
. . SEC. ~· Ac~ion by the court. - The court may dismiss the
petition outnght wrth specific reasons for such dismissal or require the
respondent to file a comment on the same within ten (10) days from
noti~. Only pleadings required by the court shall be allowed. All other
pleadings and papers may be filed only with leave of court. (n)
SEC. 6. Det?rmination of factual issues. - Whenever necessary
to resolve factual issues, the court itself may conduct hearings thereon
or delegate the reception of the evidence on such issues to any of its
members or to an appropriate court, agency or office. (n)
. SEC. 7. Effect of failure to file comment. - When no comment
: fi!ed by any of the respondents, the case may be decided on the
thasrs of the record, without prejudice to any disciplinary action which
e court may take against the disobedient party. (n)
488
I
'I APPENDIX A
I RULES OF CIVIL PROCEDURE
· Rule 47
ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS
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. (n)
SEC. 2. Grounds for annulment. - The annulment may be based
only on the grounds of extrinsic fraud and lack of jurisdiction. '. ~:
Extrinsic fraud shall not be a valid ground if it was availed of, or
could have been availed of, in a motion for new trial or petition for relief.
(n)
SEC. 3. Period for filing action. - If based on extrinsic fraud, the
action must be filed within four (4) years from its discovery; and if based
on lack of [urtsoictlon, befor~ it is barred by !aches or estoppel. (n)
SEC. 4. Filing and contents of petition. - The action shall be
commenced by filing a verified petition alleging therein with particularity
the facts and the law relied upon for annulment, as well as those
supporting the petitioner's good and substantial cause of action or.
defense, as the case may be.
The petition shall be filed in seven (7) clearly legible copies, toge- .
ther with sufficient copies corresponding to the number of respondents.
A certified true copy of the judgment or final order or resolution shall be
attacned to the original copy of the petition intended for the court and
indicated as such by the petitioner.
The petitioner shall also submit together with the petition affidavits
of witnesses or documents supporting the cause of action or defense
and a sworn certification that he has not theretofore commenced.any
other action involving the same issues in the Supreme Court, the Court
of Appeals or different divisions thereof, or any other tribunal or agency;
if there is such other action or proceeding, he must state the status
of the same, and if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or diff'.eren_t divisions thereof, or any other tribunal
489
 QUESTIONS AND ANSWERS IN
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or agency, he undertakes to promptly inform the aforesaid courts and
other tribunal or agency thereof within five (5) days therefrom. (n)
SEC. 5. Action by the court. - Should the court find no substantial
merit in the petition, the same may be dismissed outright with specific
reasonsfor such dismissal.
Should prima facie merit be found in the petition, the same shall
be given due course and summons shall be served on the respondent.
(n)
SEC. 6. Procedure. - The procedure in ordinary civil cases shall
be observed.Should a 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. (n)
SEC. 7. Effect of judgment. -A judgment of annulment shall set
aside the questionedjudgment or final order or resolution and render
the same null and void, without prejudice to the original action being
refiled in the proper court. However,where the judgment or final order
or resolutionis set aside on the ground of extrinsic fraud, the court may
on motion order the trial court to try the case as if a timely motion for
new trial had been granted therein. (n)
SEC. 8. Suspension of prescriptive period. - The· prescriptive
period for the refiling of the aforesaid original action shall be deemed
suspendedfrom the filing of such original action until the finality of the
judgment of annulment. However,the prescriptive period shall not be
suspendedwhere the extrinsicfraud is attributable to the plaintiff in the
originalaction. (n)
SEC. 9. Relief evelleot«. - The judgment of annulment may
includethe award of damages,attorney's fees and other relief.
If the questionedjudgment or final order or resolution had already
been executed, the court may issue such orders of restitution or other
relief as justice and equity may warrant under the circumstances. (n)
. SEC. 10. Annul':1ent of judgments or final orders of Municipal
~nal C~urts. -An actron to annul a judgment or final order of a Muni-
c~p~I Trial Court shall be filed in the Regional Trial Court having juris-
drctr~n over the former. It shall be treated as an ordinary civil action and
Sectrons2,.3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. (n)
490
APPENDIX A
RULES OF CIVIL PROCEDURE
Rule 48
PRELIMINARY CONFERENCE
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 determi-
nation;
(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 appellatejurisdiction 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)
. SEC. 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)
SEC. 3. Binding effect of the results of the conference. - Subject
to such modifications which may be made to prevent manifest injus-
tice, the resolution in the preceding section shall control the subse-
quent 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)
Rule 49
ORAL ARGUMENT
SECTION 1. When allowed. - At its own instance or upon motion
of a party, the court may hear the parties in oral argument ~n the merits
of a case, or on any material incident in connection thE:~ew1th. (n)
491
 QUESTIONS AND ANSWERS IN
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The oral argument shall be limited to such matters as the court
may specify in its order or resolution. (1a, R48)
SEC. 2. Conduct of oral argument. - Unless authorized by the
court only one counsel may argue for a party. The duration allowed for
each' party, the sequence of the argumentation, and all other related
mattersshall be as directed by the court. (n)
SEC. 3. No hearing or oral argument for motions. - Motions
shall not be set for hearing and, unless the court otherwise directs,
no hearing or oral argument shall be allowed in support thereof. The
adverse party may file objections to the motion within five (5) days from
service, upon the expiration of which such motion shall be deemed
submittedfor resolution. (2a, R49)
Rule 50
DISMISSAL OF APPEAL
SECTION 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 followinggrounds:
(a) Failure of the record on appeal to show on its face that
the appealwas taken within the period fixed by these Rules;
(b) Failure to file the notice of appeal or the record on
appealwithin the period prescribed by these Rules;
(c) Failure of the appellant to pay the docket and other
lawful fees as provided in Section 5 of Rule 40 and Section 4 of
Rule 41;
(d) Unauthorizedalterations, 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) ~ailure of the ~ppellant to take the necessary steps for
the correction or completion of the record within the time limited
by the court in its order;
492
APPENDIX A
RULES OF CIVIL PROCEDURE
(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 withoutjustifiable cause; and
(i) The fact that the order or judgment appealed from is
not appealable. (1a; En Banc Resolution, Feb. 17, 1998)
SEC. 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 RegionalTrial Court shall be dismissed. (n)
An appeal erroneouslytaken to the Court of Appeals shall not be
transferred to the appropriatecourt but shall be dismissed outright. (3a)
SEC. 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 discretionof the court. (4a)
Rule 51
JUDGMENT
SECTION 1. When case deemed submitted for judgment. - A
case shall be deemed submittedfor judgment:
A In ordinary appeals. -
1) Where no hearing on the merits of the main case is
held, upon the filing of the last pleading, brief, or m.em.orandum
. required by the Rules or by the court itself, or the expiration of the
period for its filing.
2) Where such a hearing is held, upon its termination or
u on the filing of the last pleading or memorandum as_ m~y be
requlred or permitted to be filed by the court, or the expiration of
the period for its filing.
B. in original actions and petitions for review. -
1) Where no comment is filed, upon the expiration of the
period to comment.
493
 QUESTIONS AND ANSWERS IN
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2) Where no hearing is held, upon the filing of the last
pleading required or permitted to be filed by the court, or the
expirationof the period for its filing.
3) Where a hearing on the merits of the main case is
held, upon its termination or upon the filing of the last pleading or
memorandumas may be required or permitted to be filed by the
court, or the expiration of the period for its filing. (n)
SEC. 2. By whom rendered. - The judgment shall be rendered
by the members of the court who participated in the deliberation on the
merits of the case before its assignmentto a member for the writing of
the decision. (n)
SEC. 3. Quorum and voting in the court. - The participation of
all three Justices of a division shall be necessary at the deliberation
and the unanimousvote of the three Justices shall be required for the
pronouncementof a judgment or final resolution. If the three Justices
do not reach a unanimous vote, the clerk shall enter the votes of the
dissentingJusticesin the record.Thereafter,the Chairmanof the division
shall refer the case, together with the minutes of the deliberation, to
the PresidingJustice who shall designatetwo Justices chosen by raffle
from among all the other members of the court to sit temporarily with
them, forming a special division of five Justices. The participation of
all the five membersof the special division shall be necessary for the
deliberationrequired in Section 2 of this Rule and the concurrence of a
majority of such division shall be required for the pronouncement of a
judgment or final resolution.(2a)
SEC. 4. Disposition of a case. - The Court of Appeals, in the
~xercise of its appellatejurisdiction, may affirm, reverse, or modify the
Judgmentor final order appealed from, and may direct a new trial or
further proceedingsto be had. (3a)
SEC. 5. Form of decision. - Every decision or final resolution of
the court in appealed ~ses shall clearly and distinctly state the findings
oftac:, an~ the con~~s1onsof law on which it is based, which may be
contam9?m the d~.s1on or final resolution itself, or adopted from those
set forth m the decision. order, or resolution appealed from (Sec 40 g
129)(n) · · ' ·
SEC. 6. Harmless error. - No error in either the admission or the
exclusion of evidence and no error or defect in any ruling or order or
494
APPENDIX A
RULES OF CIVIL PROCEDURE
in anything done or omittedb th .
ground for granting a new t . YI e trial court or by any of the parties is
wise disturbing a judgm t na or for setting aside, mod'fy' th
I mg, or o er-
appears to the court . en ?r order'. unless refusal to take such action
inconsistentwith substantialjustice The court at
every stage of the proceedings t d' ·
d t ff t th mus lsreqardany error or defect which
oes no a ec e substantialrightsof the parties. (5a)
SEC..7. Judgment where there are several parties. - In all actions
or proceedings, an appealedjudgment may be affirmed as to some of
the appellants, ~nd reversedas to others, and the case shall thereafter
be proceeded with, so far as necessary,as if separateactions had been
begun and prosec~ted; and execution of the judgment of affirmance
may be had accordingly, and costs may be adjudgedin such cases, as
the court shall deem proper. (6)
SEC. 8. Questions that may be decided. - No error which does
~ot affect the jurisdiction over the subject matter or the validity. of the
Judgment appealed from or the proceedingstherein will be considered
unless stated in the assignment of errors, or closely related to or
dependent on an assigned error and properlyargued in the brief, save
as the court may pass upon plain errorsand clerical errors. (7a)
SEC. 9. Promulgation and notice of judgment. - After the judg-
ment or final resolution and dissentingor separateopinions, if any, are
signed by the Justices taking part, they shall be delivered for filing to
the clerk who shall indicatethereonthe date of promulgationand cause
true copies thereof to be served uponthe parties or their counsel. (n)
SEC. 10. Entry of judgments and final resolutions. - If no appeal
or motion for new trial or reconsideration is filed within the time provided
in these Rules, the judgment or final resolution shall forthwith be
entered by the clerk in the book of entriesof judgments. The date when
the judgment or final resolution becomes executory shall be deemed
as the date of its entry. The record shall contain the dlspositivepart of
the judgment or final resolutionand shall be signed by the clerk, with a
certificate that such judgment or final resolution has become final and
executory. (2a, R36)
SEC. 11. Execution of judgment. - Exceptwherethe judgment or
final order or resolution,or a portionthereof, is orderedto be immediately
executory, the motion for its execution may only be filed in the proper
court after its entry.
495
 QUESTIONS AND ANSWERS IN
REMEDIAL AW
. . . th Court of Appeals Its writ of execution shall
In onginal actions 1 n e ' . t fi
·ri d true copy of the entry of JUdgmen or ma I
be accompanied by a ce rt 1 re .
. dd d lo any appropriate offlcer for its enforcement.
resolution and a resse
cases where the motion for execution pending
I n appe aled · . . . ,
appeal is filed in the Court of Appeals at a time that tt Is m. possession
of the original record or the record on appeal. the resolut'.on granting
such mo tiion ·S h a 11 be transmitted to the lower court from . which the case
originated. together with a certified true copy of the JU?~me~t or final
order to be executed, with a directive for such court of onqm to issue the
proper writ tor its enforcement. (n)
Rule 52
MOTION FOR RECONSIDERATION
SECTION 1. Period for filing. - A party may file a motion for
reconsideration of a judgment or final resolution within fifteen (15) days
from notice thereof, with proof of service on the adverse party. (n)
SEC. 2. Second motion for reconsideration. - No second motion
for reconsideration of a judgment or final resolution by the same party
shall be entertained. (n)
SEC. 3. Resolution of motion. - In the Court of Appeals, a motion
for reconsideration shall be resolved within ninety (90) days from the
date when the court declares it submitted for resolution. (n)
SEC. 4. Stay of execution. - The pendency of a motion for
reconsideration filed on time and by the proper party shall stay the
execution of the judgment or final resolution sought to be reconsidered
unless the court, for good reasons, shall otherwise direct. (n)
Rule 53
NEW TRIAL
SECTION 1. Period for filing; ground. - At any time after the
appeal from the lower court has been perfected and before the Court
of Appeals loses jurisdiction over the case, a party may file a motion
for a new trial on the ground of newly discovered evidence which could
not have been discovered prior to the trial in the court below by the
exercise of due diligence and which is of such a character as would
496
APPENDIX
RULES OF CIVI PROCEDURE
probab_ly change the resun, The motion hall be accompanied by
affidavits showing the facts con ... tituting he ground" thereror and the
newly discovered evidence. (ta)
SEC '. 2. Hearing and order. - The Court of Appeals hall con-id r
the new evidence together with that adduced at the trial telo"''· and may
grant or refuse a new trial. or may make such order. wi1h notice lo both
partie~,. as to the taking of further testimony. either orally in court or by
depositions, or render such other judgment as ought to be rendered
upon such terms as it may deem just. (2a)
SEC. 3. Resolution of motion. - In the Court of Appeals. a mo 1on
for new trial shall be resolved within ninety (90) days from the data
when the court declares it submitted for resolution. {n)
SEC. 4. Procedure in new trial. - Unless the court otherwise
directs, the procedure in the new trial shall be the same as that granted
by a Regional Trial Court. (3a)
Rule 54
INTERNAL BUSINESS
SECTION 1. Distribution of cases among divisions. - All the
cases of the Court of Appeals shall be allotted among the different
divisions thereof for hearing and decision. The Court of Appeals. sitting
en bane, shall make proper orders or rules to govern the allotment of
cases among the different divisions. the constitution of such divisions.
the regular rotation of Justices among them. the filling of vacancies
occurring therein, and other matters relating to the business of the
court; and such rules shall continue in force until repealed or altered by
it or by the Supreme Court. (1 a)
SEC. 2. Quorum of the court -A majority of the actual members
of the court shall constitute a quorum for its sessions en bane. Three
members shall constitute a quorum for the sessions of a division.
The affirmative votes of the majority of the members present shall be
necessary to pass a resolution of the court en bane. The affirmative
votes of three members of a division shall be necessary for the pro-
nouncement of a judgment or final resolution, which shall be reached
in consultation before the writing of the opinion by any member of the
division. (Sec. 11, first par. of B.P. Big. 129, as amended by Sec. 6 of
E. O. 33) (3a)
497
 QUESTIONS AND ANSWERS IN APPENDIX A
REMEDIAL LAW RULES OF CIVIL PROCEDURE

SEC. 2. Rules app/icabl

Rule 55
PUBLICATION OF JUDGMENTS
AND FINAL RESOLUTIONS
SECTION 1. Publication. - The judgments and final resolutions
of the court shall be published in the Official Gazette and in the Reports
officially authorized by the court in the language in which they have
been originally written, together with the syllabi therefor prepared by
the reporter in consultation with the writers thereof. Memoranda of all
other judgments and final resolutions not so published shall be made
by the reporter and published in the Official Gazette and the authorized
reports. (1a)
SEC. 2. Preparation of opinions for publication. - The reporter
shall prepare and publish with each reported judgment and final res,o-
lution a concise synopsis of the facts necessary for a clear understand-
ing of the case, the names of counsel, the material and controverted
points involved, the authorities cited therein, and a syllabus which shall
be confined to points of law. (Sec. 22a, R.A. No. 296) (n)
SEC. 3. General make-up of volumes. - The published decisions
and final resolutions of the Supreme Court shall be called "Philippine
Reports," while those of the Court of Appeals shall be known as the
"Court of Appeals Reports." Each volume thereof shall contain a table
of the cases reported and the cases cited in the opinions, with a com-
plete alphabetical index of the subject matters of the volume. It shall
consist of not less than seven hundred pages printed upon good paper,
well bound and numbered consecutively in the order of the volumes
published. (Sec. 23a, R.A. No. 296) (n)
PROCEDURE IN THE SUPREME COURT
Rule 56
A. ORIGINAL CASES
. SE~TIO~ _1_. Original cases cognizable. - Only petitions for
c~~toran, prohlbltion, mandamus, quo warranto, habeas corpus dis-
crphnary proceedings against members of the judiciary and attorneys
and cases affecting ambassadors, other public ministers and consuls
may be filed originally in the Supreme Court. (n)
certiorari, prohibition mand e. - The procedure in original cases for
shall be in accordan~e with ~~us, q~o warrant? _and habeas corpus
tion, laws, and Rules · e applicable provrsrons of the Constitu-
46 48 49• 51,
following provisions: ' ' 52 and this Rule, subject to the
(a) All references in id R
shall be understo d t sai ules to the Court of Appeals
. 0 0 a I so apply to the Supreme Court;
speciii~~lly ~~~:;~ots of said Rules d~aling strictly with and
shall not be applic:ble~ra~~pealed cases rn the Court of Appeals
· (c) Eightee~ (18) clearly legible copies of the petition shall
be filed, together with proof of service on all adverse parties.
. . . .. The proceedings for disciplinary action against members of the
judiciary shall be governed by the laws and rules prescribed therefor
and those against attorneys by Rule 139-B, as amended. (n) '
B. APPEALED CASES
. SEC. 3. Mode of appeal. -An appeal to the Supreme Court may
be taken only by a petition for review on certiorari, except in criminal
~as~s where the penalty imposed is death, reclusion perpetua or life
irnprisonrnent. (n) ,
SEC. 4. Procedure. - The appeal shall be governed by and dis-
posed of in accordance with the applicable provisions of the Consti-
tution, laws, Rules 45, 48, Sections 1, 2, and 5 to 11 of Rule 51, 52 and
this Rule. (n)
SEC. 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;

498 499

S.. prame
SEC. · · :x,si:i~ v~ i:71:,-o_::e;- ~.
- Except as pro\.ided
s,:,..,.::. 0 - K ~ ~ 22 rega:-d' g ap~.., · 1 ·m· .a cases ~,nere the
1-
;:>e-.a.f ~ is 0ec':'... re:;Jusb perre~a." • lite ·mpnsonment.
a: a;:i;,ea· ~.-e; .. ·~ Supreme C:)ut y oce of appeal shaTI be
'is:nisse ....
;.., ~ .., ce:tiora, · ~ e to the Supreme Court from the
Re;:iio:--~ Tria Court submt.f g issues of fact may be referred to the
~r o~ ~'ls to· d<>-.:Sbn or <3Apropi'iate action. The determination
of tne Suprerne Co~rt on lhe!her or no! issues of fact are involved shall
be ·fina . (n)
SEC. 7. Procedure if opinion is equally divided. - Where the
court e ben: is equally divided in opinion, or the necessary majority
cannot be had, the case shall again be deliberated on, and if after such
delooration no decision is reached, the ,original action commenced in
the court shall be dismissed; in appealed cases, the judgment or order
appealed from shall stand affirmed; and on all incidental matters, the
petition or motion shall be denied. (11a)
PROVIStONAL REMEDIES
Rule 57
PRELIMINARY ATIACHMENT
SECTION 1. Grounds upon which attachment may issue. ~ At the '
com~e~cement of the action 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:
· (a) In an action for the recovery of a specified amount of
mone_y or ~a~ages, other than moral and exemplary, on a cause
of ~ction ~rising from law, contract, quasi-contract, delict or quasi-
d~II~ against a party who is about to depart from the Philippines
with intent to defraud his creditors·I
500
APPEND A
RULES Of CIVi . PROCEDURE
(b) . In an acfuo for rnoooy or property embezzied or fraud-
u entfy :~p
or an" 011~r
led,Of con,. ,erted to his. own use by a pubf'lCofficer.
. of a corpor azoo,
-- Of an attorney, factor. bro er, cJgPJit,
or d~rk: m the ~rse of his em oyrnent as such, or by any ether
person ma fidooaT)' capacify, or for a · 1ru1 violation of duty;
. (c) In an action to recover the possession of property
unjustly or fraudulentty taken, detarned or converted, when the
p~perty, or any part thereof, has been concealeo, removed, or
disposed ?f to prevent its be:ng found or taken by the app'"'lcant or
an authonzed person;
(d) In an_ action against a party who has been gwlt1 of a
fraud ·~ co?tracting the debt or incurring the obHgaticn upon which
the action as brought. or in the performance thereof;
(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
(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: (1a)
SEC. 2. Issuance and contents of order. -An order of attachment
may be issued either ex parle or upon motion with notice and hearing
by the court in which the action is pending, or by the Court of Appeals
or the Supreme Court, and must require the sheriff of the court to attach
so much of the property in the Philippines of the party against whom it
is issued, not exempt from execution, as may be sufficient to satisfy the
applicant's demand, unless such party makes deposit or gives a bond
as hereinafter provided in an amount equal to that fixed in the order,
which may be the amount sufficient to satisfy the applicant's demand
or the value of the property to be attached as stated by the applicant,
exclusive of costs. Several writs may be issued at the same time to the
sheriffs of the courts of different judicial regions. (2a)
SEC. 3. Affidavit and bond required. - 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
501
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
. l f the property the possession of which he is
applicant, or the "~ ue o h as the sum for which the order is granted
entitled to recover. ts as muc b d · d by
bove all legal counterclaims. The affidavit, and the on require
:he next succeeding section. must be duly filed with the court before the
order issues. (3a)
SEC. 4. Condition of applicant's bond. - The party applying for
the order must thereafter give a bond executed t~ the ad.verse party
in the amount fixed by the court in its order granting the 1~suance of
the writ. conditioned that the latter will pay all the costs which may ~e
adjudged to the adverse party and all damages which h~ may sustain
by reason of the attachment, if the court shall finally adjudge that the
applicant was not entitled thereto. (4a)
SEC. 5. Manner of attaching property. - The sheriff enforcing the
writ shall without delay and with all reasonable dilige~ce attach, to await
judgment and execution in the action, only so much of the property in
the Philippines of the party against whom the writ is issued, not exempt
from execution, as may be sufficient to satisfy the applicant's demand,
unless the former makes a deposit with the court from which the writ is
issued, or gives a counter-bond executed to the applicant, in an amount
equal to the bond fixed by the court in the order of attachment or to
the value of the property to be attached, exclusive of costs. No levy on
attachment pursuant to the writ issued under Section 2 hereof shall be
enforced unless it is preceded, or contemporaneously accompanied,
by service of summons, together with a copy of the complaint, the
application for attachment, the applicant's affidavit and bond, and the
order and writ of attachment, on the defendant within the Philippines.
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. (5a)
SEC. 6. Sheriffs retum. -After enforcing the writ the sheriff must
likewise without delay make a return thereon to the court from which the
writ issued, with a full statement of his proceedings under the writ and a
compl~te inventory of the property attached, together with any counter
bon_d given by the party against whom attachment is issued, and serve
copres thereof on the applicant. (6a)
502
APPENDIX A
RULES OF CIVIL PROCEDURE
SEC. 7. Attachment of
thereof. -Real and er tee I and personal property; recording
xacutlnq the writ in tph sof lnlal property shall be attached by the sheriff
e e o owing manner:
.(a) Re~I property, or growing crops thereon, or any interest
therein, s!andmg upon the record or the registry of deeds of the
province in the name of the party against whom attachment is
Issued, or not appearing at all upon such records, or belonging
to the party against whom attachment is issued and held by any
other person, or standing on the records of the registry of deeds in
the name of any other person, by filing with the registry of deeds
a copy of the order, together with a description of the property
attached, and a notice that it is attached, or that such real property
and any Interest therein held by or standing in the name of such
other person are attached, and by leaving a copy of such order,
description, and notice with the occupant of the property, if any, or
with such other person or his agent if found within the province.
· Where the property has been brought under the operation of
either the Land Registration Act or the Property Registration
Decree, the notice shall contain a reference to the number of the
certificate of title, the volume and page in the registration book
where the certificate is registered, and the registered owner or
owners thereof.
The Registrar of Deeds must index attachments filed under
this section in the names of the applicant, the adverse party. or the
person by whom the property is held or in whose name it stands in
the records. If the attachment is not claimed on the entire area of
the land covered by the certificate of title, a description sufficiently
accurate for the identification of the land or interest to be affected
shall be included in the registration of such attachment;
(b) Personal property capable of ~an_ual delivery, by tak!ng
and safely keeping it in his custody, after issuing the corresponding
receipt therefor;
( ) Stocks or shares, or an interest in stocks or _shares,
of an/ corporation or company, by leaving with the pr_es1dent_ or
managing agent thereof, a copy of the _writ, and a notice stating
that the stock or interest of the party against ~horn the attachment
is issued is attached in pursuance of such wnt;
d Debts and credits, including bank deposits, financial
. ( ) It. commissions and other personal property not
interest, roya 1es,
503
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
capable of manual delivery, 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
wh~m attachment Is issued, and the credits and other personal
property in his possession, or under his co~trol, belonglng to said
party, are attached in pursuance of such wnt;
(e) The interest of the party against whom attachment
is issued in property belonging to the estate of the decedent,
whether as heir, legatee, or devisee, by serving 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 office of the derk of the court in which said estate is being
settled and served upon the heir, legatee or devisee concerned.
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-
judicial agency, and notice of the attachment served upon the custodian
of such property. (7a)
SEC. 8. Effect of attachment of debts, credlts and all other similar
personal property. - All persons having in their possession or under
their control any credits or other similar personal property belonging to
the party against whom attachment is issued, or owing any debts to him,
at the time of service upon them of the copy of the writ of attachment.
and notice as provided in the last preceding section, shall be liable to the
applicant for the amount of such credits, debts or other similar personal
property, until the attachment is discharged, or any judgment recovered
by him is satisfied, unless such property is delivered or transferred, or
such debts are paid, to the clerk, sheriff, or other proper officer of the
court issuing the attachment. (Ba)
SEC. 9. Effect of attachment of interest in property belonging
to the estate of a decedent. - The attachment of the interest of an
heir, legatee, or devisee in the property belonging to the estate of a
decedent shall not impair the powers of the executor, administrator, or
other personal representative of the decedent over such property for
the purpose of administration. Such personal representative, however,
shall report the attachment to the court when any petition for distribution
is filed, and in the order made upon such petition, distribution may be
awarded to such heir, legatee, or devisee, but the property attached
504
APPENDIX A
RULES OF CIVIL PROCEDURE
shall be ordered ?elivered to the sheriff making the levy, subject to the
claim of such heir, legatee, or devisee, or any person claiming under
him. (9a)
SEC. 10. Examination of party whose property is attached and
persons indebted to him or controlling his property; delivery of property
to sheriff. - Any person owing 'debts to the party whose property is
attached or having in his possession or under his control any credit
or other personal property belonging to such party, may be required
to attend before the court in which the action is pending, or before
a commissioner appointed by the court, and be examined on oath
respecting the same. The party whose property is attached may also
be required to attend for the purpose of giving lnformation respecting
his· property, and may be examined on oath. The court may, after
such examination, order personal property capable of manual delivery
belonging to him, in the possession of the person so required to attend
before the court, to be delivered to the clerk of the court or sheriff on
such terms as may be just, having referenceto any lien thereon or claim
against the same, to await the judgment in the action. (10a)
SEC. 11. When attached property may be sold after levy on
attachment and before entry ofjudgment. - Whenever it shall be made
to appear to the court in which the action is pendi~g, up?n hearing with
notice to both parties, that the property attached is penshable, or that
'the interests of all the parties to the action will be subserved by the sale
thereof, 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. (11a)
SEC. 12. Discharge of attachment upon giving counter-bond. -
After a writ of attachment has been enforced, the party whose property
has been attached, or the person appearing on his behalf, may_mo~e for
the discharge of the attachment wholly o~ in part on the _secunty given.
The court shall, after due notice and heanng, ~rder the discharge of the
'attachment if the movant makes a ~sh deposit, or files a counter-bond
executed to the attaching party with the clerk of the court whe~e the
r · tl is made in an amount equal to that fixed by the court in the
.apdp 1caf1ontt chment exclusive of costs. But if the attachment is sought
or er o a a • , rty the counter bond
to be discharged with respect to a parttcu 1 ar prope '.. -
shall .be equal to the value of that property as determined by the court.
· · the cash deposit or the counter-bond shall secure
, In either case, . · th
· dgment that the attaching party may recover m e
the payment of any JU
505
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
action. A notice of the deposit shall forthwith be _served on the att~ching
party. Upon the discharge of an attachment in accordance with the
provisions of this section, the property attached, o~ the proceed~ of
any sale thereof, shall be delivered to the party makmg the deposit or
giving the counter-bond, or to the person appearing on his behalf, the
deposit or counter-bond aforesaid standing in place of the property so
released. Should such counter-bond for any reason be found to be,
or become insufficient, and the party furnishing the same fail to file an
additional counter-bond, the attaching party may apply for a new order
of attachment. (12a)
SEC. 13. Discharge of attachment on other grounds. - The party
whose property has been ordered attached may file a motion with
the court in which the action is pending, before or after levy or even
after the release of the attached property, for an order to set aside or
discharge the attachment on the ground that the same was improperly
or irregularly issued or enforced, or that the bond is insufficient. If the
attachment is excessive, the discharge shall be limited to the excess.
If the motion be made on affidavits on the part of the movant but not
otherwise, the attaching party may oppose the motion by counter-
affidavits or other evidence in addition to that on which the attachment
was made. After due notice and hearing, the court shall order the setting
aside or the corresponding discharge of the attachment if it appears
that it was improperlyor irregularly issued or enforced, or that the bond
is insufficient,or that the attachment is excessive, and the defect is not
cured forthwith. (13a)
SEC. 14. Proceedings where property claimed by third person.
If th_e property attached is claimed by any person other than the party
againstwhom attachmenthad been issued or his agent, and such person
ma~esan affidavit of his title thereto, or right to the possession thereof,
stating t~e gr?unds of such right or title, and serves such affidavit upon
the sheriff while the latter has possession of the attached property, and
a copy thereof upon the attaching party, the sheriff shall not be bound
to keep the property under attachment, unless the attaching party or his
ag~nt, on ?emand ?f the sheriff, shall file a bond approved by the court
to indemnify the third-party claimant in a sum not less than the value
of the property levied upon. In case of disagreement as to such value
the sa~e shall be decided by the court issuing the writ of attachment'.
No claim for ~amages for the taking or keeping of the property may be
enforced against the bond unless the action therefor is filed within one
hundred twenty (120) days from the date of the filing of the bond. · delivered to judgment obligor. - If after realizing upon all·the property
506
I APPENDIX A
ii RULES OF CIVIL PROCEDURE
1:
I
The sheriff shall not be liable for damagesfor the taking or keeping
of such prop~rty, to a~y such third-party claimant, if such bond shall
b~ filed. Nothing h~re1~ c?ntained shall prevent such claimant or any
third ~erson from vindicating his claim to the property, or prevent the
attaching pa~ from claiming damages against a third-party claimant
wh? filed a frivolous or plainly spurious claim, in the same or a separate
action.
When the writ of attachment is issued in favor of the Republic
of the Philippines, or any officer duly representing it, the filing of such
bond shall not be required, and in case the sheriff is sued for damages
as a result of the attachment, he shall be represented by the Solicitor
General, and if held liable therefor, the actual damages adjudged by
the court shall be paid by the NationalTreasurer out of the funds to be
appropriated for the purpose. (14a)
SEC. 15. Satisfaction of judgment out of property attached;
return of sheriff. - If judgment be recovered by the attaching party
and execution issue thereon, the sheriff may cause the judgment to be
satisfied out of the property attached, if it be sufficient for that purpose
in the following manner: -
(a) By paying to the judgment obligee the proceeds of
all sales of perishable or other property sold in pursuance of the
order of the court, or so much as shall be necessary to satisfy the
judgment;
(b) If any balance remains due, by selling so much of the
property, real or personal, as may be necessary to satisfy the
balance, if enough for that purpose remain in the sheriff's hands,
or in those of the clerk of the court; and
(c) By collectingfrom all persons having in their possession
credits belonging to the judgment obligor, or owing debts to the
latter at the time of the attachment of such credits or debts, the
amount of such credits and debts as determined by the court in
the action, and stated in the judgment, and paying the proceeds
of such collection over to the judgment obligee.
The sheriff shall forthwith make a retu~n in writing_ to th~ court. of
his proceedings under this section and furnish the parties with copies
thereof. (15a)
SEC. 16. Balance due collected upon an execution; excess
507
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
I:
attached, including the proceeds of.any debts or credits collected, and
applying the proceeds to the satisfaction of the judgment, less the
expenses of proceedings upon the judgment, any balance shall remain
due, the sheriff must proceed to collect such balance as upon ordinary
execution. Whenever the judgment shall have been paid, the sheriff,
upon reasonable demand, must return to the judgment obliger the
attached property remaining in his hands, and any proceeds of the sale
of the property attached not applied to the judgment. (16a)
SEC. 17. Recovery upon the counter-bond. - When the judgment
has become executory, the surety or sureties on any counter-bond
given pursuant to the provisions of this Rule to secure the payment of
the judgment shall become charged on such counter-bond and bound
to pay the judgment obUgeeupon demand the amount due under the
judgment, which amount may be recovered from such surety or sureties
after notice and summary hearing in the same action. (17a) ·
SEC. 18. Disposition of money deposited. - Where the party
against whom attachment had been issued has deposited money
instead of giving counter-bond, it shall be applied under the direction
of the court to the satisfaction of any judgment rendered in favor of the
attaching party, and after satisfying the judgment the balance shall be
refunded to the depositor or his assignee. If the judgment is in favor
of the party against whom attachment was issued, the whole sum
deposited must be refunded to him or his assignee. (18a)
SE~. 19. Disposition of attached property where judgment is for
party against whom attachment was issued. - If judgment be rendered
against the attaching party, all the proceeds of sales and money
collected or received by the sheriff, under the order of attachment, and
all ?roperty attached remaining in any such sheriffs hands, shall be
delivered to the party against whom attachment was issued and the
order of attachment discharged. (19a) ' preliminary injunction may be grantedwhen it is established:
S~C. 20. Claim for damages on account of improper, irregular or
~xcess,ve _attachment. - An application for damages on account of
,~proper, irregular or excessive attachment must be filed before the
trial or befor~ appeal is_ perfected or before the judgment becomes
exec~tory, w!th due notice to the attaching party and his surety or
sureties, setting forth the facts showing his right to damages and the
amo~nt thereof. Such damages may be awarded only after proper
heanng and shall be included in the judgment on the main case.
508
APPENDIX A
RULES OF CIVIL PROCEDURE
If the judgment of the a
f
against whom the attachm pell ate court be favorable to the party
sustained during the pend en was issued, he must claim damages
in the appellate court ·tehncy ?f
the appeal by filing an application
, w1 notice to the party · h f th
attachment was issued h' m w ose avor e
the appellate court be or is surety or sureties, before the judgment of
. . comes executory.The appellate court may allow
the appllcatlon to be heard and decided by the trial court.
Nothing herein ~ontained shall prevent the party against whom
the attachment was issued from recovering in the same action the
damages awarded ~o him from any property of the attaching party not
~xemp~from ex~cution shouldthe bondor depositgiven by the latter be
insufficient or fail to fully satisfy the award. (20a)
Rule 58
PRELIMINARY INJUNCTION
SECTION 1. Preliminary injunction defined; classes. - A pre-
liminary injunction is an order qranted 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 refrainfrom a particularact or acts. It may
also require the performanceof a particularact or acts, in which case it
shall be known as a preliminary mandatoryinjunction. (1a)
SEC. 2. Who may grant preliminary injunction. - A preliminary
injunction may be granted by the court where the action or proceeding
is pending. If the action or proceedingis pendingin the Court of Appeals
or in the Supreme Court, it may be issuedby said court or any member
thereof. (2a)
SEC. 3. Grounds for issuance of preliminary injunction - A
(a) That the applicant is entitled to _the _relief de_m_anded,
and the whole or part of such relief consists m rest~ammg the
commission or continuance of the act or acts c_omplamed.of: or
· requmng
m · · the performance
. of an act or acts, either for a limited
period or perpetually;.
(b) That the commission,continuance_~r n?n-performance
iained of during the l1t1gat1on would prob-
of the act or acts COmp
ably work injustice to the applicant; or
509
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
(c) That a party, court, agency or a person is doing, threat-
ening, 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. (3a)
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
(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. (4a)
(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 su~mons, together with a copy of the complaint or initiatory
pleading and the applicant's affidavit and bond, upon the adverse
party in the Philippines.
However, where the summons could not be served per-
sonally or by substituted service despite diligent efforts, or the
adverse pa~ is a resident of the Philippines temporarily absent
therefrom or ts a nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not apply.
(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
510
APPENDIX A
RULES OF CIVIL PROCEDURE
are received by the branch selected by raffle and to which the
records shall be transmitted immediately. •
S~C. 5. Preli':7inary injunction not granted without notice;
excep~1on.-: No preliminary injunction shall be granted without hearing
and prior notice to the party or persons sought to be enjoined. If it shall
appear from f~cts shown by affidavits or by the verified application
that great or irreparable injury would result to the applicant before
the ma~te~ can _b~ he~rd on notice, the court to which the application
for pr~h.mmary mJunct1on was made, may issue ex parte a temporary
restramm~ order to be effective only for a period of twenty (20) days
from. serv1c~ on the_ p~rty or person sought to be enjoined, except as
he.rem provided. Within the twenty-day period, the court must order
?r
said_ p_arty person to show cause at a specified time and place, why
the injunction should not be granted. The court shall also determine,
within the same period, whether or not the preliminary injunction shall
be granted, and accordingly issue the corresponding order.
However, subject to the provisions of the preceding sections, if
the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, 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 shall immediately comply with the provisions of the
next preceding section as to service of summons and the documents
to be served therewith. Thereafter, within the aforesaid seventy-two
(72) hours, the judge before whom the case is pending shall conduct a
summary hearing to determine whether the temporary restraining order
shall be extended until the application for preliminary injunction can be
heard. In no case shall the total period of effectivity of the temporary
restraining order exceed twenty (20) days, including the oriqinal
seventy-two hours provided herein.
In the event that the application for preliminary injunction is denied
or not resolved within the said period, the temporary restraining order is
deemed automatically vacated. The effectivity of a temporary restrain-
ing order is not extendible without need of any judicial declaration to
that effect, and no court shall have authority to extend or renew the
same on the same ground for which it was issued.
However, if issued by the Court of Appeals or a member thereof,
the temporary restraining order shall be effective for sixty (60) days from
service on the party or person sought to be enjoined. A restraining order
511
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
issued by the supreme Court or a member thereof shall be effective
until further orders.
The trial court, the Court of Appeals, the Sandiganbayan or the
Court of Tax Appeals that issued a writ of preliminary injunction ~galnst
a lower court, board, officer, or quasi-judicial age~cy shall decide t~e
ain case or petition within six (6) months from the issuance of the wnt. .
;s amendedby A.M. No. 07-7-12-SC,effective Dec. 27, 2007.)
SEC. 6. Grounds for objection to, or for motion of dissolution ·
of, injunction or restraining order. - The a~plicat(on. for inj~nction or
restraining order may be denied, upon a showing of its insufficiency. The
injunction or restraining order may also be denied, or, if granted, may
be dissolved, on other grounds upon affidavits of the party or person
enjoined, which may be opposed by the appli~nt also b_y _affidavits.
It may further be denied, or, if granted, may be dissolved, if it appears
after hearing that although the applicant is entitled to the injunction or ,
restraining order, the issuance or continuance thereof, as the case may
be, would cause irreparable damage to the party or person enjoined
while the applicant can be fully compensated for such damages as he
may suffer, and the former files a bond in an amount fixed by the court
conditioned that he will pay all damages which the applicant may suffer
by the denial or the dissolution of the injunction or restraining order. If it
appears that the extent of the preliminary injunction or restraining order
granted is too great, it may be modified. (6a)
SEC. 7. Serviceof copies of bonds; effect of disapproval of same. - ,
- The party filing a bond in accordance with the provisions of this ·
Rule shall forthwith serve a copy of such bond on the other party, who
may except to the sufficiency of the bond, or of the surety or sureties
thereon. If the applicant'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 injunction shall be dissolved. If the bond of the adverse
party is found lo be insufficient in amount, or the surety or sureties
thereon fail lo justify a bond sufficient in amount with sufficient sureties
approved after justification is not filed forthwith, the injunction shall be ,
granted or restored, as the case may be. (Ba)
SEC. 8. Judgment to include damages against party and
sureties.- At the trial, the amount of damages to be awarded to either ·
party, upon the bond of the adverse party, shall be claimed, ascertained,
512 ·
APPENDIX A
RULES OF CIVl!:PROCEDURE
and awarded under the same procedure prescribed in Section 20 of
Rule 57. (9a)
SEC. 9. When final injunction granted. - If after the trial of the
action it appears that the applicant is entitled to have the act or acts
complained of permanently enjoined, the court shall grant a final
Injunction perpetually restraining the party or person enjoined from
the commission or continuance of the act or acts or· confirming the
preliminary mandatory injunction. (10a)
Rule 59
RECEIVERSHIP
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 apply-
ing 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 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 judg-
ment, or to aid execution when the execution has been returned
unsatisfied or the judgment_ obligor refuses to apply his property
in satisfaction of the judqment, or otherwise to carry the judgment
into effect; and
(d) Whenever in other cases it appears that the appoint-
ment of a receiver is the most convenient and feasible means of
preserving, administering, or disposing of the property in litigation.
513
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
During the pendency of an appeal, the ap.pellate cou~ ma~ allow
an application for the appointment of a ~ece1ver ~o be filed in and
decided by the court of origin and the receiver appointed to be subject
to the control of said court. (1 a)
SEC. 2. Bond on appointment of receiver. - Before issuing the
order appointing a receiver the court shall require t~e appticant to file a
bond executed to the party against whom the application rs presented,
in an amount to be fixed by the court, to the effect that the applicant
will pay such party all damages he may sustain by reason of the
appointment of such receiver in case the applicant shall have procured
such appointment without sufficient cause; and the court may, in its
discretion, at any time after the appointment, require an additional bond
as further security for such damages. (3a)
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 discharged if it is shown that his appointment
was obtained without sufficient cause. (4a)
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. (5a)
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
~ufficient in amou~t with sufficient sureties approved after justification
rs 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
~ou~d 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. (6a)
514
APPENDIX A
RULES OF CIVIL PROCEDURE
SE~. 6. ~eneral powers of receiver. - Subject to the control of
the court in which th~ action or proceeding is pending, a receiver shall
have the power to bring and defend, in such capacity, actions in his own
nam~; 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. However, funds in the hands of a receiver may be invested
only by order of the court upon the written consent of all the parties to
the action. (7a)
No action may be filed by or against a receiver without leave of
the court which appointed him. (n) ·
SEC. 7. Liability for refusal or neglect to deliver property to re-
ceiver. -A person who refuses or neglects, upon reasonable demand,
to deliver to the receiver all the property, money, books, deeds, notes,
bills, documents and papers within his power or control, subject of or
involved in the action or proceeding, or in case of disagreement, as
determined and ordered by the court, may be punished for contempt
and shall be liable to the receiver for the money or the value of the
property and other things so refused or neglected to be surrendered,
together with all damages that may have been sustained by the party or
parties entitled thereto as a consequence of such refusal or neglect. (n)
SEC. 8. Termination of receivership; compensation of receiver.
- Whenever the court, motu proprio or on motion of either party, shall
determine that the necessity for a receiver no longer exists, it shall,
after due notice to all interested parties and hearing, settle the accounts
of the receiver, direct the delivery of the funds and other property in
his possession to the person adjudged to be entitled to receive them,
and order the discharge of the receiver from further duty as. such. The
court shall allow the receiver such reasonable compensation as the
circumstances of the case warrant. to be taxed as costs against the
defeated party, or apportioned, as justice requires. (Ba)
SEC. 9. Judgment to. include recovery against sureties. -
The amount, If any, to be awarded to any party upon any bond. filed
in accordance with the provisions of this Rule. shall be claimed,
515
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
ascertained, and granted under the same procedure prescribed
Section 20 of Rule 57. (9a)
Rule 60
REP LEVIN
SECTION 1. Application. -A party praying for the recovery of.
possession of personal property may, at the commencement o! the
action or at any time before answer, apply for an orde~ for the delivery
of such property to him, in the manner hereinafter provided. (1a)
SEC. 2. Affidavit and bond. - The applicant must show by his·
own affidavit or that of some other person who personally knows the
facts: • d
(a} That the applicant is the owner of the property c 1 airne ,
particularly describing it, or is entitled to the possession thereof; , '.
(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 Jegis, or if so seized, that it is exempt from such seizu~~,:
or custody; and
.\,.
(d} The actual market value of the property.
The applicant must also give a bond, executed to the adverse
party in double the value of the property as stated in the affidavit
aforementioned, for the return of the property to the adverse party if
such return be adjudged, and for the payment to the adverse party of
such sum as he may recover from the applicant in the action. (2a)
SEC. 3. Order. - Upon the filing of such affidavit and approval
of the bond, the court shall issue an order and the corresponding writ
of replevin describing the personal property alleged to be wrongfully
detained and requiring the sheriff forthwith to take - such property into
his custody. (3a)
SEC. 4. Duty of the sheriff. - Upon receiving such order, the
sheriff must serve a copy thereof on the adverse party, together with
copy of the application, affidavit and bond, and must forthwith take the
516
APPENDIX A
RULES OF CIVIL PROCEDURE
property, if it be in the possession of the adverse party or his agent, and
in
retain I~ i~ his custody. If the property or any part the;eof be concealed
In a build1~g or enclosure, the sheriff must demand its delivery, and if it
be not delivered, he must cause the building or enclosure to be broken
open and take the property into his possession. After the sheriff has
taken possession of the property as herein provided, he must keep it
In a secure place and shall be responsible for its delivery to the party
entitled thereto upon receiving his fees and necessary expenses for
taking and keeping the same. (4a)
SEC. 5. Return of property. - If the adverse party objects to the
sufficiency of the applicant's bond, or of the surety or sureties thereon,
he cannot immediately require the return of the property, but if he does
not so object, he may, at any time before the delivery of the property to
the applicant, require the return thereof, by filing with the court where
the action is pending a bond executed to the applicant, in double the
value of the property as stated in the applicant's affidavit for the delivery
thereof to the applicant, if such delivery be adjudged, and for the
payment of such sum to him as may be recovered against the adverse
party, and by serving a copy of such bond on the applicant. (Sa)
', SEC. 6. Disposition of property by sheriff. - If within five (5) days
after the taking of the property by the sheriff, the adverse party does not
object to the sufficiency of the bond, or of the surety or sureties thereon;
or if the adverse party so objects and the court affirms its approval of
the applicant's bond or approves a new bond, or if the adverse party
requires the return of the property but his bond is objected to and found
·,.;
insufficient and he does not forthwith file an approved bond, the property
shall be delivered to the applicant. If for any reason the property is not
delivered to the applicant, the sheriff must return it to the adverse party.
(6a)
SEC. 7. Proceedings where property claimed by third person. - If
the property taken is claimed by any person other than the party against
whom the writ of replevin had been issued or his agent, and such person
makes an affidavit of his title thereto, or right to the possession there~f,
stating the grounds therefor, and serves such affidavit upon the shenff
while the latter has possession of the property and a copy thereof upon
the applicant, the sheriff shall not be bound to keep ~he prope~ under
replevin or deliver it to the applicant unless the applicant or his agent,
on demand of said sheriff, shall file a bond approved by the cou.rt to
indemnify the third-party claimant in a s.um no~ less than the value _of
a· the property under replevin as provided m Section 2 hereof. In case of ,
517
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
disagreement as to such value, the court shall determine the same.
No claim for damages for the taking or keeping of the. propert~ ~ay be
enforced against the bond unless the action ther~for 1s filed within one
hundred twenty ( 120) days from the date of the filing of the bond.
The sheriff shall not be liable for damages, for the taking or keep-
ing of such property, to any such third-party claimant if su~h bond shall
be filed. Nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the p_roperty, or ~revent the
applicant from claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same or a separate
action.
When the writ of replevin is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond
shall not be required, and in case the sheriff is sued for damages
as a result of the replevin, he shall be represented by the Solicitor
General, and if held liable therefor, the actual damages adjudged by
the court shall be paid by the National Treasurer out of the funds to be
appropriated for the purpose. (la)
SEC. 8. Return of papers. - The sheriff must file the order, with
his proceedings indorsed thereon, with the court within ten (10) days
after taking the property mentioned therein. (Ba)
SEC. 9. Judgment. - After trial of the issues, the court shall
determine who has the right of possession to and the value of the
property and shall render judgment in the alternative for the delivery
thereof to the party entitled to the same, or for its value in case delivery
cannot be made, and also for such damages as either party may prove,
with costs. (9a)
SEC. 1 O. Judgment to include recovery against sureties. -
!he amount, if any, to be awarded to any party upon any bond filed
in accordance with the provisions of this Rule, shall be claimed,
ascertained, and granted under the same procedure as prescribed in
Section 20 of Rule 57. (10a)
Rule 61
SUPPORT 'PENDENTE LITE'
. SECTION 1. Application. - At the commencement of the proper
action or proceeding, or at any time prior to the judgment or final order,
518
APPENDIX A
RULES OF CIVIL PROCEDURE
a v~rified application for support pendente lite may be filed by any party
stating the grounds for the claim and the financial conditions of both
parties, and accompanied by affidavits depositions or other authentic
documents in support thereof. (1a) '
SEC. 2. Comment. - A copy of the application and all supporting
documents shall be served upon the adverse party, who shall have
five (5) days to comment thereon unless a different period is fixed by
the court upon his motion. The comment shall be verified and shall be
accompanied by affidavits, depositions or other authentic documents
in support thereof. (2a, 3a)
SEC. 3. Hearing. - After the comment is filed, or after the expi-
ration of the period for its filing, the application shall be set for hearing
not more than three (3) days thereafter. The facts in issue shall be
proved in the same manner as is provided for evidence on motions. (4a)
SEC. 4. Order. - The court· shall determine provision~liy · the
pertinent facts, and shall render such orders as justice and equity may
require, having due regard to the probable outcome of the case and such
other circumstances as may aid in the proper resolution of the question
involved. If the application is granted, the court shall fix the amount of
money to be provisionally paid or such other forms of support as should
be provided, taking Into account the necessities of the applicant and the
resources or means of the adverse party, and the terms of payment or
mode for providing the support. If the application is denied, the principal
case shall be tried and decided as early as possible. (5a)
SEC. 5. Enforcement of order. - If the adverse party fails to
comply with an order granting support pendente lite, the court shall,
motu proprio or upon motion, issue an order of execution against him,
without prejudice to his liability for contempt. (6a)
When the person ordered to give support pendente lite refuses
or fails to do so, any third person who furnished that support to the
applicant may, after due notice and hearing in the same case, obtain
a writ of execution to enforce his right of reimbursement against the
person ordered to provide such support. (n)
SEC. 6. Support in criminal cases. - In criminal actions where
the civil liability includes support for the offspring as a consequence of
the crime and the civil aspect thereof has not been waived, reserved or
instituted prior to its filing, the accused may be ordered to provide support
519

QUEST10NS AND ANSWERS IN
REMEDIAL LAW
pendente lite to the child born to the offended party allege~ly because
of the crime. The application therefor may be filed s~ccess1vely by the
offended party, her parents, grandparents or guardian and the State
in the corresponding criminal case during its pendency, In accordance
with the procedure established under this Rule. (n)
SEC. 1. Restitution. - When the judgment or final order of the
court finds that the person who has been providing support pendente
lite is not liable therefor. it shall order the recipient thereof to return to
the fonner the amounts already paid with legal interest from the dates of
actual payment, without prejudice to the right of the recipient to. obtain
reimbursement in a separate action from the person legally obliged to
give the support. Should the recipient fail to reimburse said amounts,
the person who provided the same may likewise seek reimbursement
thereof in a separate action from the person legally obliged to give such
support. (n)
SPECIAL CIVIL ACTIONS
I •
Rule 62
INTERPLEADER
SECTION 1. When interpleader proper. - Whenever conflicting
daims upon the same subject matter are or may be made aqalnsta
person who daims 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. (ta,
R63)
. SEC. 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 inte:ests of justice so require, the court may direct in such
order that the subject matter be paid or delivered to the court. (2a, R63)
. S~C. 3._ Summons. - Summons shall be served upon the
conflicting claimants, together with a copy of the complaint and order
~~
SE~. 4. Motion to dismiss. - Within the time for filing an answer,
~fch ~a1mant may file_a motion to dismiss on the ground of impropriety
the mterpleader action or on other appropriate grounds specified in
520
APPENDIX A
RULES OF CIVIL PROCEDURE
Rule 16. The period to file the answer shall be tolled and if the motion is
denied, the movant may file his answer within the remaining period, but
which shall not be less than five (5) days in any event reckoned from
notice of denial. (n) '
SEC. 5. Answer and other pleadings. - Each claimant shall file
his answer setting forth his claim within fifteen (15) days from service of
the summons upon him, serving a copy thereof upon each of the other
conflic1ing claimants who may file their reply thereto as provided by
these Rules. If any claimant fails to plead within the time herein fixed,
the court may, on motion, declare him in default and thereafter render
judgment barring him from any claim in respect to the subject matter.
The parties in an interpleader action may file counterclaims,
cross-claims, third-party complaints and responsive pleadings thereto,
as provided by these Rules. (4a, R63)
SEC. 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. (Sa, R63)
SEC. 7. Docket and other lawful fees, costs and litigation expenses
as liens. - The docket and other lawful fees paid by the party who
filed a complaint under this Rule, as well as the costs and litigation
expenses, shall constitute a lien or charge upon the subject matter of
the action, unless the court shall order otherwise. (6a, R63)
Rule 63
DECLARATORY RELIEF AND SIMILAR
REMEDIES
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.
An action fof the reformation of an instrument, to quiet title to
real property or remove clouds therefrom, or to consolidate ownership
521

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
under Article 1607 of the Civil Code, may be brought under this Rule.
(1a. R64. En Banc Resolution, Feb. 17, 1998.)
. SEC. 2. Parties. _ All persons who have or claim any int~rest
which would be affected by the declaration shall ?e m~de parties, and
no declaration shall, except as otherwise prov1d~d in these Rules,
prejudice the rights of persons not parties to the action. (2a, R64)
SEC. 3. Notice on Solicitor General. - In any ac~ion which
involves the validity of a statute, executive order or regulation, or .any
other governmental regulation, the Solicitor General shall be notified
by the party assailing the same and shall be entitled to be heard upon
such question. (3a, R64)
SEC. 4. Local government ordinances. - In any action involvlnq
the validity of a local government ordinance, the corresponding pro-
secutor or attorney of the local governmental unit i~volved. shall be
similarly notified and entitled to be heard. If such ordinance 1~ alleged
to be unconstitutional, the Solicitor General shall also be notified and
entitled to be heard. (4a, R64)
SEC. 5. Court action discretionary. - Except in actions falling
under the second paragraph of Section 1 of this Rule, the court, motu
proprio or upon motion, may refuse to exercise the power to de~l~re
rights and to construe instruments in any case where a declslon
would not terminate the uncertainty or controversy which gave rise to
the action, or in any case where the declaration or construction is not
necessaryand proper under the circumstances. (5a, R64)
SEC. 6. Conversion into ordinary action. - If before the final
termination of the case, a breach or violation of an instrument or a
statute, executive order or regulation, ordinance, or any other govern-
mental regulation should take place, the action may thereupon be
converted into an ordinary action, and the parties shall be allowed
to file such pleadings as may be necessary or proper. (6a, R64)
Rule 64
REVIEW OF JUDGMENTS AND FINAL ORDERS OR .
RESOLUTIONS OF THE COMMISSION ON ELECTIONS
AND THE COMMISSION ON AUDIT
SECTION 1. Scope. - This Rule shall govern the review of judg-
ments and final orders or resolutions of the Commission on Elections
and the Commission on Audit. (n)
522
APPENDIX A
RULES OF CIVIL PROCEDURE
SEC. 2. Mode of review AJ d
of the Commission on Electi~ - u gment or ~n~I order or resolution
brought by the aggrieved ns and the Comm1ss1on on Audit may be
. party to the Supreme Court on certiorari under
Rule 65, except as hereinafter provided. (n)
SEC. 3. Time to fife petition. -The petition shall be filed within
thirty (30) days f~om notice of the judgment or final order or resolution
sou~ht to be _re~1ewed. The filing of a motion for new trial or reconsid-
eration of said Judgment or final order or resolution, if allowed under
the. proced~ral rules of the Commission concerned, shall interrupt the
period ~~rein_fi~ed. If the ~otion is denied, the aggrieved party may file
the petition w_1th1n the remaining period, but which shall not be less than
five (5) days in any event, reckoned from notice of denial. (n)
SEC. 4. Docket and other lawful fees. - Upon the filing of the
petition, the petitioner shall pay to the clerk of court the docket and
other lawful fees and deposit the amount of P500.00 for costs. (n)
SEC. 5. Form and contents of petition. - The petition shall be
verified and filed in eighteen (18) legible copies. The petition shall
name the aggrieved party as petitioner and shall join as respondents
the Commission concerned and the person or persons interested in
sustaining the judgment, final order or resolution a quo. The petition
shall state the facts with certainty, present clearly the issues involved,
set forth the grounds and brief arguments relied upon for review. and
pray for judgment annulling or modifying the questioned judgment, final
order or resolution. Findings of fact of the Commission supported by
substantial evidence shall be final and non-reviewable.
' The petition shall be accompanied by a clearly legible dupli~te
original or certified true copy of the judgment, fin~I order or resolut1~n
subject thereof together with certified true copies of such matenal
portions of the ~ecord as are referred to therein and other d?cuments
relevant and pertinent thereto. The requisite number of copies of the
petition shall contain plain copies of all documents attached to the
original copy of said petition.
The petition shall state the specific material dates showing that
it was filed within the period fixed herein, ?nd ~hall co~tain a sworn
certification against forum shopping as provided m the third paragraph
of Section 3, Rule 46.
The petition shall furt~er. be accompa~i~~~~~r~~ ~~~=;~c;~:;
copy thereof on the Comm1ss1onconcerne wf I f
and of the timely payment of docket and other la u ees.
523
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
The failure of petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of the petition.
(n)
SEC. 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.
(n)
SEC. 7. Comments of respondents. - The comments of the
respondents shall be filed in eighteen (18) legible copies. The original
shall be accompanied by certified true copies of such material portions
of the record as are referred to therein together with other supporting
papers. The requisite number of copies of the comments shall contain
plain copies of all documents attached to the original and a copy thereof
shall be served on the petitioner.
No other pleading may be filed by any party unless required or
allowed by the Court. (n)
SEC. 8. Effect of filing. ~ 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. (n)
SEC. 9. Submission for decision. - Unless the -Court sets the
case for oral argument, or requires the parties to submit memoranda,
the case shall be deemed submitted for decision upon the filing of the
comments on the petition, or of such other pleadings or papers as may
be required or allowed, or the expiration of the period to do so. (n) ·
Rule 65
CERTIORARI,PROHIBITION, AND MANDAMUS
SECTION 1. Petition for certiorari.·- When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted 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, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may fjle a verified petltlon in the proper court,
524
APPENDIX A
RULES OF CIVIL PROCEDURE
allegi~g the fact~ ~ith certainty and praying that judgment be rendered
annulling ?r modifying the proceedings of such tribunal, board or officer,
and granting such Incidental reliefs as law and justice may require.
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 ~6. (1a)
SEC. 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.
-.
1•
• 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. (2a)
SEC. 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. (3a)
525
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. 4. When and where to file the petition. - The petition shall
be med 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) days counted from the notice of the denial of
the motion.
If the petition relates to an act or an omission of a municipal trial
court or of a corporation, a board, an officer or a person, it shall be filed
with the Regional Trial Court exercising jurisdiction over the territorial
area as defined by the Supreme Court. It may also be filed with the
Court of Appeals or with the Sandiganbayan, whether or not the same
is in aid of the court's appellate jurisdiction. If the petition involves an act
or an omission of a quasi-judicial agency, unless otherwise provided by
law or these rules, the petition shall be filed with and be cognizable only
by the Court of Appeals.
In election cases involving an act or an omission of a municipal
or a regional trial court, the petition shall be filed exclusively with
the CommJssion on Elections, in aid of its appellate jurisdiction. (As
amended by A.M. No. 07-7-12-SC, effective Dec. 27, 2007.)
SEC. 5. Respondents and costs in certain cases. - When the
pention filed relates to the acts or omissions of a judge, court, quasi-
judicial agency, tribunal, corporation, board, officer or person, the
petitioner shall join, as private respondent or respondents with such
public respondent or respondents, the person or persons interested in
sustainin,g the proceedings in the court; and it shall be the duty of such
private respondents to appear and defend, both in his or their own behalf
and i.n behalf of the public respondent or respondents affected by the
proceedings, and the costs awarded in such proceedings in favor of the
petitioner shall be against the private respondents only, and not against
the judge, court, quasi-judicial agency, tribunal, corporation, board,
officer or person impleaded as public respondent or respondents.
. Unless otherwise specifically directed by the court where the
petition is pending, the public respondents shall not appear in or file an
~nswer or comment to the petition or any pleading therein. If the case
is elevated to a higher court by either party, the public respondents
shall be included therein as nominal parties. However, unless otherwise
spe_cificaHy directed by the court, they shall not appear or participate in
the proceedings there'in. (Sa)
526
APPENDIX A
RULES OF CIVIL PROCEDURE
SEC. 6. Order to comment. - If the petition is sufficient in form
and substance to justify such process, the court shall issue an order
requiring the respondent or respondents to comment on the petition
within ten days from receipt of a copy thereof. Such order shall be
served on the respondents in such manner as the court may direct,
together with a copy of the petition and any annexes thereto.
In petitions for certiorari before the Supreme Court and the Court
of Appeals, the provisions of Section 2, Rule 56, shall be observed.
Before giving due course thereto, the court may require the respon-
dents to file their comment to, and not a motion to dismiss, the petition.
Thereafter, the court may require the filing of a reply and such other res-
ponsive or other pleadings as it may deem necessary and proper. (6a)
SEC. 7. Expediting proceedings; injunctive relief. - The court in
which the petition is filed may issue orders expediting the proceedings,
and it may also grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the rights of the parties
pending such proceedings. The petition shall not interrupt the course
of the principal case, unless a temporary restraoning order or a writ of
preliminary injunction has been issued, enjoinirr,g the eubuc respondent
from further proceeding with the case.
The public respondent shall proceed with the principal case within
ten (10) days from the filing of a petition for certiorari with a higher
court or tribunal, absent a temporary restraining order or a preliminary
injunction, or upon its expiration. Failure of the public respondent to
proceed with the principal case may be a ground for an administrative
charge. (As amended by A.M. No. 07-7-12-SC, effective Dec. 27, 2007.)
SEC. 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 filing of memoranda
or upon the expiration of the period for filing, the court finds that the
allegations of the petition are true, it shall render judgment for such
relief to which the petitioner is entitled.
However, the court may dismiss the petition if it finds the same
patently without merit or prosecuted manifestly for delay, or if the
questions raised therein are too unsubstantial to require consideration.
In such event, the court may award in favor of the respondent treble
costs solidarily against the petitioner and counsel, in addition to
527
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
subjecting counsel to administrative sanctions under Rules 139 and
139-B of the Rules of Court.
The Court may impose motu proprio, based on res ipsa loquitur,
other disciplinary sanctions or measures on erring lawyers for patently
dilatory and unmeritorious petitions for certiorari. (As amended by A.M.
No. 07-7-12-SC, effective Dec. 27, 2007.)
SEC. 9. Service and enforcement of order or judgment. - A
certified copy of the judgment rendered in accordance with the last
preceding section shall be served upon the court, quasi-judicial agency,
tribunal, corporation, board, officer or person concerned in such manner
as the court may direct, and disobedience thereto shall be punished as
contempt. An execution may issue for any damages or costs awarded
in accordance with Section 1 of Rule 39. (9a)
Rule 66
QUO WARRANTO
SECTION 1. Action by Government against individuals. - An
action for the usurpation of a public office, position or franchise may be
commenced by a verified petition brought in the name of the Republic
of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds
or exercises a public office, position or franchise;
(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;
(c) An association which acts as a corporation within the
Philippines without being legally incorporated or without lawful
authority so to act. (1a)
SEC. 2. When Solicitor General or public prosecutor must
c?mmence action. - The Solicitor General or a public prosecutor, when
d1recte~ by the President of the Philippines, or when upon complaint or
otherw~sehe h~s good reason to believe that any case specified in the
pre_cedmg section can be established by proof, must commence such
action. (3a)
SEC. 3. When Solicitor General or public prosecutor may
commence action with permission of court. - The Solicitor General
or a public prosecutor may, with the permission of the court in which
the action is to be commenced, bring such an action at the request
528
APPENDIX A
RULES OF CIVIL PROCEDURE
a~d ~po~ the relation of another person; but in such case the officer
bnngm~ it ~ay first require an indemnity for the expenses and costs of
the action in an amount approved by and to be deposited in the court
by the person at whose request and upon whose relation the same is
brought. (4a)
SEC. 4. ~hen hearing. h~d on application for permission to
commence action. - Upon application for permission to commence
such action in accordance with the next preceding section, the court
shall direct that notice be given to the respondent so that he may be
heard in opposition thereto; and if permission is granted, the court shall
issue an order to that effect, copies of which shall be served on all
interested parties, and the petition shall then be filed within the period
ordered by the court. (5a)
SEC. 5. When an individual may commence such an action. -A
person claiming to be entinedto a public office or position usurped or
unlawfully held or exercised by another may bring an action therefor in
his own name. (6) ·
SEC. 6. Parties and contents of petition against usurpation. -
When the action is against a person for usurping a public office, position
or franchise, the petition shall set forth the name of the person who
claims to be entitled thereto, if any, with an averment of his right to the
same and that the respondent is unlawfully in possession thereof. All
persons who claim to be entitled to the public office, position or franchise
may be made parties, and their respective rights to such public office,
position or franchise determined, in the same action. (7a)
SEC. 7. Venue. - An action under the preceding six sections
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, but 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. (Ba)
SEC. 8. Period for pleadings and proceedings may be reduced;
action given precedence. - The court may reduce the perio? pro~ided
by these Rules for filing pleadings and for all other proceedings m the
action in order to secure the most expeditious determination of the
matters involved therein consistent with the rights of the parties. Such
action may be given precedence over any other civil matter pending in
the court. (9a)
529
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. 9. Judgment where usurpation found. - When the res-
pondent is found guilty of usurplnq •. intruding int~, or.unlawfully holding
or exercising a public office, posmon or franchise, Judgment shall be
rendered that such respondent be ousted and altogether excluded
therefrom, and that the petitioner or relater, as the case may b~, ~ecover
his costs. Such further judgment may be rendered determining the
respective rights in and to the public office, position or franchise of all
the parties to the action as justice requires. (10a)
SEC. 10. Rights of persons adjudged entitled to public office;
delivery of books and papers; damages. - If judgment be rendered in
favor of the person averred In the complaint to be entitled to the public
office he may, after taking the oath of office and executing any official
bond required by law, take upon himself the execution of the office,
and may Immediately thereafter demand of the respondent all the
books and papers In the respondent's custody or control appertaining
to the office to which the judgment relates. If the respondent refuses
or neglects to deliver any book or paper pursuant to such demand, ho
may be punished for contempt as having disobeyed a lawful order of
the court. The person adjudged entitled to the offlco may also bring
action against the respondent to recover the damages sustain d by
such person by reason of the usurpation. (15a)
SEC. 11. Limitations. - Nothing contained In this Rulo snnu b
construed to authorize an action against a public officer or mploy
for his ouster from office unless the same bo commenced within on ( 1)
year after the cause or such ouster, or tho right of tho potltlon r to hold
such office or position, arose; nor to authorize on action for domogos in
accordance with the provisions of tho next preceding socllon unless th
same be commenced within one (1) year after tho entry of the judgn1 nt
establishing the petitioner's right to the office In question. (168)
SEC. 12. Judgment for costs. - in on action brought in accor-
dance with the provisions of this Rule, the court may render judgment
for costs against either tho petitioner, the retator, or the respondent. or
the person or persons claiming to be a corporation, or may apportion
the costs, as justice requires. (17a)
Rule 67
EXPROPRIATION
SECTION 1. Tho complaint. - The right of eminent domain shall
bo oxorclsod by tho filing or a verified complaint which shall state with
530
APPENDIX A
RULES OF CIVIL PROCEDURE
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. 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. (1 a)
SEC. 2. Entry of plaintiff upon depositing value with authorized
government depositary. - 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. Such
do posit shall be In money, unless In lieu thereof the court authorizes the
deposit of a certificate of deposit of a government bank of the Republic
of the Philippines payable on demand to the authorized government
dopos tnry,
If personal property Is Involved, Its value shall be provisionally
scortained and tho amount to be deposited shall be promptly fixed by
th court.
After such deposit Is made the court shall order the sheriff or
other proper officer to forthwith place the plaintiff In possession of the
property involved and promptly submit a report thereof to the court with
service of copies to the parties. (2a)
SEC. 3. Defenses and objections. - 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 that effect,
specifically designating or identifying the property In which he claims
to be interested, within the tlme stated In the summons. Thereafter, he
shall bo entitled to notice of all proceedings affecting the same.
If a defendant has any objection to the filing of or the allegations In
the complaint, or any objection or defense to the taking of his property,
he shall serve his answer within the time stated In the summons. The
answer shall specifically designate or identify the property In which he
claims to have an interest, state the nature and extent of the Interest
531
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
claimed, and adduce all his objections and defenses to the taking of his
property. No counterclaim, cross-claim or third-party comp.lalnt shall be
alleged or allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged
but the court, in the interest of justice, may permit amendments to the
answer to be made not later than ten (10) days from the filing thereof.
However. at the trial of the issue of just compensation, whether or not
a defendant has previously appeared or answered, he may present
evidence as to the amount of the compensation to be paid for his
property, and he may share in the distribution of the award. (n)
SEC. 4. Order of expropriation. - If the objections to and the
defenses against the right of the plaintiff to expropriate the property are
overruled, or when no party appears to defend as required by this Rule,
the court may issue an order of expropriation declaring that the plaintiff
has a lawful right to take the property sought to be expropriated, for. the
public use or purpose described in the complaint, upon the payment of
just compensation to be detennined as of the date of the taking of the
property or the filing of the complaint, whichever came first.
A final order sustaining the right to expropriate the property may
be appealed by any party aggrieved thereby. Such appeal, however,
shall not prevent the court from determining the just compensation to
be paid.
After the rendition of such an order, the plaintiff shall not · be
pennitted to dismiss or discontinue the proceeding except on such
terms as the court deems just and equitable. (4a)
SEC. 5. Ascertainment of compensation. - Upon the rendition of
the order of expropriation, the court shall 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. The order of appointment shall designate the time and place
of the first session of the hearing to be held by the commissioners and
specify the time within which their report shall be submitted to the court.
Co~ies of the order shall be served on the parties. Objections to
the appointment of any of the commissioners shall be filed with the
court within ten (10) days from service and shall be resolved within
thirty (30) days after all the commissloners shall have received copies
of the objections. (5a) · parties have filed their objections to the report or .their statement of
532
APPENDIX A
RULES OF CIVIL PROCEDURE
SEC. 6. Proceedings by commissioners. - Before entering upon
the performance of their duties, the commissioners shall take and sub-
scribe an oath that they will faithfully perform their duties as commis-
sioners, whl~h oath shall be filed in court with the other proceedings in
the case. Evidence may be introduced by either party before the com-
missioners who are authorized to administer oaths on hearings before
them, and the commissioners shall, unless the parties consent to the
contrary, after due notice to the parties to attend, view and examine the
property sought to be expropriated and its surroundings, and may mea-
sure the same, after which either party may, by himself or counsel, argue
the case. The commissioners shall assess the consequential damages
to the property not taken and deduct from such consequential damages
the consequential benefits to be derived by the owner from the public
use or purpose of the property taken, the operation of its franchise by
the corporation or the carrying on of the business of the corporation
or person taking the property. But in no case shall the consequential
benefits assessed exceed the consequential damages assessed, or the
owner be deprived of the actual value of his property so taken. (6a)
SEC. 7. Report by commissioners and judgment thereupon. -
The. court may order the commissioners to report when any particular
portion of the real estate shall have been passed upon by them, and may
render judgment upon such partial report, and direct the commissioners
to proceed with their work as to subsequent portions of the property
sought to be expropriated, and may from time to time so deal with such
property. The commissioners shall make a full and accurate report to
the court :oi all their proceedings, and such proceedings shall not be
effectual until the court shall have accepted their report and rendered
judgment in accordance with their recommendations. Except as other-
wise expressly ordered by .the court, such report shall be filed within
sixty (60) days from the date the commissioners were notified of their
appointment, which time may be extended in the discretion of the court.
Upon the filing of such report, the clerk of the court shall serve copies
thereof on all interested parties, with notice that they are allowed ten
(10) days within which to file objections to the findings of the report, if
they so desire. (la)
a
SEC.· Action upon commissioners' report. - Upon the expiration
of the period of ten (10) days referred to in the preceding ~ection, or
even before the expiration of such period but after all the interested
agreement therewith, the court may, after hearing, accept the report
533

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
and render judgmont in nccordanco thorowith; or, for cause shown,
it nu y rocommu tho snmo to tho commissioners for further report of
fo t~: or it mny sot aslde tho roport and oppoint now commissioners;
or it m~y accept tho roport In port and rojoct it in port; and it may make
su h ordor or rondor such judgmont ns sholl secure to the plaintiff the
propmty ssontlnl to tho oxorciso of his right of expropriation, and to the
dofondnnt just componsntlon for the proporty so token. (Ba)
SEC. 9. U11Ctlrt11in ownorship; conflicting claims. -If the ownership
of tho property token is uncortoin, or there are conOicling claims to
any port thoreot, tho court moy order any sum or sums awarded as
componsatlon for tho property to be paid to the court for the benefit of
tho person odjudgod In the some proceeding to be entitled thereto. But
tho judgment shall require tho payment of the sum or sums awarded to
either the def endont or the court before tho plaintiff can enter upon the
property, or retain It tor the public use or purpose If entry has already
been made. (9a)
SEC. 10. Rights of plaintiff aftor judgment and payment. - Upon
payment by the plaintiff to the defendant of the compensation fixed
by the judgment, with legal Interest thereon from the taking of th
possession of tho property, or after tender to him of the amount so
fixed and payment of the costs, the plaintiff shall have the right to enter
upon the property expropriated and to appropriate It for tho public use
or purpose defined In the judgment, or to retain it should ho have taken
Immediate possession thereof under the provisions of Section 2 hereof.
If the defendant and his counsel absent themselves from the court
or decline to receive the amount tendered, the same shall be ordered
to be deposited in court and such deposit shall have the same effect
as actual payment thereof to the defendant or tho person ultimately
adjudged entitled thereto. (10a)
. SEC. 11. Entry not delayed by appeal; effect of reversal. - The
rrght of _the plaintiff to enter upon the property of the defendant and
appropnate the same for public use or purpose shall not be delayed
by an app_eal from the judgment. But if the appellate court determines
that ~lamtrff has no right of expropriation, judgment shall be rendered
ordering the Regional Trial Court to forthwith enforce the restoration to
the defenda~t of the possession of the property, and to determine the
damages which the defendant sustained and may recover by reason of
the possession taken by the plaintiff. (11a)
534
APPENDIX A
RULES OF CIVIL PROCEDURE
SEC. 12. Costs, by whom paid. - The fees of the commissioners
shall be taxed a~ a pa~ of the costs of the proceedings. All costs,
except_ th_ose of nval claimants litigating their claims, shall be paid by
the plaintiff, unless an appeal is taken by the owner of the property and
the judgment Is affirmed, in which event the costs of the appeal shall be
paid by the owner. (12a)
SEC. 13. Recording judgment, and its effect. - The judgment
entered in expropriation proceedings shall state definitely, by an
adequate description, the particular property or interest therein expro-
priated. and the nature of the public use or purpose for which it Is
expropriated. When real estate is expropriated, a certified copy of such
judgment shall be recorded in the registry of deeds of the place in which
the property is situated, and its effect shall be to vest in the plaintiff the
title to the real estate so described for such public use or purpose. (13a)
SEC.14. Power ot guardian in such proceedings. -The guardian
or guardian ad /item of a minor or of a person judicially declared to
be Incompetent may, with the approval of the court first had, do and
perform on behalf of his ward any act, matter, or thing respecting the
oxproprlatlon for public use or purpose of property belonging to such
minor or person Judicially declared to be Incompetent, which such
minor or person Judicially declared to be incompetent could do In such
proceedings it he were of age or competent. (14a)
Rule 68
FORECLOSURE OF REAL ESTATE MORTGAGE
SECTION 1. Complaint In action for foreclosure. - In an action
for the foreclosure of a mortgage or other encumbrance upon real
a-state, the complaint shall set forth the date and due execution of the
mortgage; its assignments, if any; the names and residences of the
mortgagor and the mortgagee; a description of the mortgaged property;
a statement of the date of the note or other documentary evidence
of the obligation secured by the mortgage, the amount claimed to be
unpaid thereon; and the names and residences of all persons having
or daiming an interest in the property subordinate in right to that of the
holder of the mortgage, all of whom shall be made defendants in the
action. (1a)
SEC. 2. Judgment on foreclosure for payment or sale. - If upon
the trial in such action the court shall find the facts set forth In the
535
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
complaint to be true, it shall ascertain the amount due to the plaintiff
upon the mortgage debt or obligation, including interest and other
charges as approved by the court, and costs, and shall render judgment
for the sum so found due and order that the same be paid to the court
or to the judgment obligee within a period of not less than ninety (90)
days nor more than one hundred twenty (120) days from the entry of
judgment, and that in default of such payment the property shall be sold
at public auction to satisfy the judgment. (2a)
SEC. 3. Sale of mortgaged property; effect. -When the defendant,
after being directed to do so as provided in the next preceding section,
fails to pay the amount of the judgment within the period specified .
therein, the court, upon motion, shall order the property to be sold in
the manner and under the provisions of Rule 39 and other regulations
governing sales of real estate under execution. Such sale shall not affect
the rights of persons holding prior encumbrances upon the property or
a part thereof, and when confirmed by an order of the court, also upon
motion, it shall operate to divest the rights in the property of all the··
parties to the action and to vest their rights in the purchaser, subject to
such rights of redemption as may be allowed by law. ·
Upon the finality of the order of confirmation or upon the expiration
of the period of redemption when allowed by law, the purchaser· at
the auction sale or last redemptioner, if any, shall be entitled to the
possession of the property unless a third party is actually holding the ·
same adversely to the judgment obliger. The said purchaser or last
redemptioner may secure a writ of possession, upon motion, from the
court which ordered the foreclosure. (3a) ·
SEC. 4. Disposition of proceeds of sale. - The amount realized
~ram the foreclosure sale of the mortgaged property shall, after deduct-
ing the costs of the sale, be paid to the person foreclosing the mort-:
gage, and when there shall be any balance or residue, after paying off.
~e mortgage debt due, the same shall be paid to junior encumbrancers
m the order of their priority, to be ascertained by the court, or if there be
no such encumbrancers or there be a balance or residue after payment , .
to them, t~en to the mortgagor or his duly authorized agent, or to the
person entitled to it. (4a) . . ,
SEC. 5. How sale to proceed in case the debt is not all due. _.,'
If the debt for which the mortgage or encumbrance was held is not
all due as provided in the judgment, as soon as a sufficient portion of
the property has been sold to pay the total amount and the costs due; .
536
APPENDIX A
RULES OF CIVIL PROCEDURE
the sale ~ha!I termi~ate; and afterwards, as often as more becomes
due. for principal or interest and other valid charges, the court may, on
mot'.on, or~er more. to .be sold. But if the property cannot be sold in
portions. without p~eJud1ce to the parties, the whole shall be ordered to
?e sold in the first instance, and the entire debt and costs shall be paid,
lf the proceeds of the sale be sufficient therefor, there being a rebate of
interest where such rebate is proper. (5a)
SEC. 6. D~ficie_ncy judgment. - If upon the sale of any real
property as provided in the next preceding section there be a balance
due to th? plaintiff after applying the proceeds of the sale, the court,
upon motion, shall render judgment against the defendant for any such
balance for which, by the record of the case, he may be personally
liable to the plaintiff, upon which execution may issue immediately if the
balance is all due at the time of the rendition of the judgment; otherwise,
the plaintiff shall be entitled to execution at such time as the balance
remaining becomes due under the terms of the original contract, which
time shall be stated in the judgment. (6a)
SEC. 7. Registration. -A certified copy of the final order of the
court confirming the sale shall be registered in the registry of deeds. If
no right of redemption exists, the certificate of title in the name of the
mortgagor shall be cancelled, and a new one issued in the name of the
purchaser,
· Where a right of redemption exists, the certificate of title in the
name of the mortgagor shall not be cancelled, but the certificate
of sale and the order confirming the sale shall be registered and a
brief memorandum thereof made by the registrar of deeds upon the
certificate of title. In the event the property is redeemed, the deed of
redemption shall be registered with the registry of deeds, and a brief
memorandum thereof shall be made by the registrar of deeds on said
certificate of title.
· If the property is not redeemed, the final deed of sale executed
by· the sheriff in favor of the purchaser at the foreclosure sale shall be
registered with the registry of deeds; whereupon, the certificate of title
in the name of the mortgagor shall be cancelled and a new one issued
in the name of the purchaser. (n)
· SEC. 8. Applicability of other provisions. - The provisions of
Sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial
foreclosure of real estate mortgages under this Rule insofar as the
537

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
former are not inconsistent with or may serve to supplement the
provisions of the latter. (Ba)
Rule 69
PARTITION
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 as provided in this Rule, setting forth in his complaint the nature
and extent of his title and an adequate description of the real estate of
which partition is demanded and joining as defendants all other persons
interested in the property. (1a)
SEC. 2. Order for partition, and partition by agreement thereunder.
- If after the trial the court finds 'that the plaintiff has the right thereto,
it shall order the partition of the real estate among al~ the parties in
interest. Thereupon, the parties may, if they are able to agree, make the
partition among themselves by proper instruments of conveyance, and
the court shall confirm the partition so agreed upon by all the parties,
and such partition, together with the order of the court confirming the
same, shall be recorded in the registry of deeds of the place in which
the property is situated. (2a)
A final order decreeing partition and accounting may be appealed
by any party aggrieved thereby. (n)
SEC. 3. Commissioners to make partition when parties fail to
agree. - If the parties are unable to agree upon the partition, the court
shall appoint not more than three (3) competent and disinterested
persons as commissioners to make the partition, commanding them
to set off to the plaintiff and to each party in interest such part and
proportion of the property as the court shall direct. (3a)
SEC. 4. Oath and duties of commissioners. - Before making
such partition, the commissioners shall take and subscribe an oath that
they will faithfully perform their duties as commissioners which oath
shall be filed in court with the other proceedings in the case, In making
the partition, the commissioners shall view and examine the real estate,
after due notice to the parties to attend at such view and examination,
and shall hear the parties as to their. preference in the portion of the
property to be set apart to them and the comparative value thereof, and
shall set apart the same to the parties in lots or parcels as will be most
538
---------m...Jllllll••••••um ••·--·
APPENDIX A
RULES OF CIVIL PROCEDURE
advantageous and equitable ha . d .
situation and quality of th d'ff' vrng ue regard to the improvements,
e ' erent parts thereof. (4a)
SEC. 5. Assignment or s I O f
When It Is made to a ae re~/ ~state by commissioners. -
rt' th f ppear to the comm1ss1oners that the real estate or
a po 10~ ereo , cannot be divided without prejudice to the interes~ of
:h~ ptrt:~s, the court may order it assigned to one of the parties willing
o a e e sa_m~, provided he pays to the other parties such amounts
as ~.he co;m1hss1oners deem equitable, unless one of the interested
pa 1e_s as s t at the property be sold instead of being so assigned,
rn which cas~ the court shall order the commissioners to sell the real
estate at public s~le under such conditions and within such time as the
court may determine. (Sa)
SEC. 6. Report of commlssionere; proceedings not binding until
confirmed. - The c~mm1ss1o~ers shall make a full and accurate report
to the court of all their proceedings as to the partition, or the assignment
o~ real estate to one of the parties, or the sale of the same. Upon the
film~ of such repo~, the _clerk of court shall serve copies thereof on all
th_e !ntere~ted parties ~1th notice that they are allowed ten (1 O) days
wrt~rn which to file obiectons to the findings of the report, if they so
desire. No proceeding had before or conducted by the commissioners
shall pass the title to the property or bind the parties until the court shall
have accepted the report of the commissioners and rendered judgment
thereon. (6a)
SEC. 7. Action of the court upon commissioners' report. -
Upon the expiration of the period of ten (10) days referred to in the
.preceding section, or even before the expiration of such period but after
the interested parties have filed their objections to the report or their
statement of agreement therewith, the court may, upon hearing, accept
the report and render judgment in accordance therewith; or, for cause
shown, recommit the same to the commissioners for further report of
facts; or set aside the report and appoint new commissioners; or accept
the report in part and reject it in part; and may make such order and
render such judgment as shall effectuate a fair and just partition of
the real estate, or of its value, if assigned or sold as above provided,
between the several owners thereof. (7)
SEC. 8. Accounting for rent and profits in action for partition. - In
an action for partition in accordance with this Rule, a party shall recover
from another his just share of rents and profits received by such other
party from the real estate in question, and the judgment shall include an
allowance for such rents and profits. (Ba)
539

QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. 9. Power of guardian in such proceedings. - The guardian
or guardian ad /item of a minor or person judicially declared to be
incompetent may, with the approval of the court first had, do and
perform on behalf of his ward any act, matter, or thing respecting the
partition of real estate, which the minor or person judicially declared to
be incompetent could do in partition proceedings if he were of age or
competent. (9a)
SEC. 10. Costs and expenses to be taxed and collected. - The
court shall equitably tax and apportion between or among the parties
the costs and expenses which accrue in the action, including the com-
pensation of the commissioners, having regard to the interests of the
parties, and execution may issue therefor as in other cases. (10a)
SEC. 11. The Judgment and Its effect; copy to be recorded in
registry of deeds. - If actual partition of property is made, the judgment
shall state definitely, by metes and bounds and adequate doscripUon,
the particular portion of the real estate assigned to each pony. and t.t
effect of the Judgment shall be to vest in each party to the action n
severalty the portion of the real estate assigned to him. If th who!
property is assigned to one of the parties upon his paying to th otl r
the sum or sums ordered by the court, the Judgment shall stat tn t
of such payment and of the assignment of the real estate to th
making the payment, and the effect of the judgment sholl be to
the party making the payment the whole of the real est ta f from
any Interest on the part of the other parties to the action. If u, pro n
is sold and the sale confirmed by the court, the judgm nt shall tat
the name of the purchaser or purchasers and a definite descrtprlon of
the parcels of real estate sold to each purchaser, and the eff ct of th
Judg~ent shall be to vest the real estate in the purchaser or purohas rs
ma~mg the pay~1ent or payments, free from the claims of any of th
parties to the action. A certified copy of the judgment shall in either case
~e ~ecorded in the registry of deeds of the place in which the real estate
is situated, and the expenses of such recording shall be taxed as part
of the costs of the action. {11a)
~EC. 12. Neither paramount rights nor amicable partition affected
by this Rule. - Nothing in this Rule contained shall be construed
so .a~ to prejudice, def~at, or destroy the right or title of any person
~aiming the real estate Involved by title under any other person or by
title paramount to the title of the parties among whom the partitio~ may
have been made; nor so as to restrict or prevent persons holding real
540
APPENDIX A
RULES OF CIVIL PROCEDURE
es tate jointly or in common fram ma k.mg an amicable
· · ·
partition thereof
by agree~ent and suitable instruments of conveyance without recourse
to an action. (12a)
SEC. 13. Partition of personal property. - The provisions of this
Rule shall apply to partitions of estates composed of personal property,
or of both real and personal property, in so far as the same may be
applicable. (13)
Rule 70
FORCIBLE ENTRY AND UNLAWFUL
DETAINER
SEC~ION 1. Who may institute proceedings, and when. - Subject
to t provts ns or the next succeeding section, a person deprived of
possession or any land or building by force, Intimidation, threat,
t y. or st nlth. or a lessor, vendor, vendee, or other person against
.. )()lll lh po ossion or any land or building is unlawfully withheld after
uon or torm nation or tho right to hold possession, by virtue of
cc Hr, t, xpre s or implied. or tho legal representatives or assigns
l,' h to or, v ndor, vondoe, or other person, may, at any lime
°' e ( 1) y ar alter such unlawful deprivation or withholding of
-0""'""'""'0. 11 an action in the proper Municipal Trial Court against
no, per ons unlawfully withholding or depriving of possession,
l,t per n or persons claiming under thorn, for the restitution of
', 13· n, together with damages and costs. (1a)
SEC. 2. Lessor to proceed against lessee only after demand.
- U otnerv ise stipulated, such action by the lessor shall be
c.onwenced onty after demand to pay or comply with the conditions of
tease and to vacate is made upon the lessee. or by serving written
no• of such demand upon the person found on the premises, or by
PoSting such notice on the premises if no person be found thereon, and
tne lessee fails to comply therewith after fifteen ( 15) days in the case of
land 0< e days in the case of buildings. (2a)
SEC. 3. Summary procedure. - Except in cases covered by the
agriruJwral tenancy laws or when the law otherwise expressly provides,
a!J actions for forcible entry and unlawful detainer, irrespective of the
amount of damages or unpaid rentals sought to be recovered, shall be
governed by the summary procedure hereunder provided. (n)
541
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. 4. Pleadings allowed. - The only pleadings allowed to
be filed are the complaint, compulsory counterclaim and cross-clalm
pleaded in the answer, and the answers thereto. All pleadings shall be
verified. (3a, RSP)
SEC. 5. Action on complaint. - The court may, from an exam-
ination 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. (n)
SEC. 6. Answer. - 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. (5, RSP)
SEC. 7. Effect of failure to answer. - Should the defendant fail to ·
answer the complaint within the period above provided, the court, motu
proprio or on motion of the plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint and limited to what is
prayed for therein. The court may in its discretion reduce the amount of
damages and attorney's fees claimed for being excessive or otherwise
unconscionable, without prejudice to the applicability of Section 3(c),
Rule 9, if there are two or more defendants. (6, RSP)
SEC. 8. Preliminary conference; appearance of parties. - Not
later than thirty (30) days after the last answer is filed, a preliminary
conference shall be held. The provisions of Rule 18 on pre-trial 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 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 the next preceding section. All
cross-claims shall be dismissed. (7, RSP)
If a sole defendant shall fail to appear, the plaintiff shall likewise be ·
entitled to judgment in accordance with the next preceding section. This
procedure shall not apply where one of two or more defendants sued
542
APPENDIXA
RULES OF CIVIL PROCEDURE
under a common cause of action who had pleaded a common defense
shall appear at the preliminary conference. (n)
No pos~poneme~t o~ the preliminary conference shall be granted
except for highly mentonous grounds and without prejudice to such
sanctions as the court in the exercise of sound discretion may impose
on the movant. (n)
SEC. 9. Record of preliminary conference. - Within five (5) days
after the termination of the preliminary conference, the court shall
issue an order stating the matters taken up therein, including but not
limited to:
1. Whether the parties have arrived at an amicable settle-
ment, and if so, the terms thereof;
2. The stipulations or admissions entered into by the
parties;
3. Whether, on the basis of the pleadings and the stipu-
lations and admissions made by the parties, judgment may be
rendered without the need of further proceedings, in which
event, the judgment shall be rendered within thirty (30) days from
issuance of the order;
. 4. A clear specification of material facts which remain
controverted; and
5. Such other matters intended to expedite the disposition
of the case. (8, RSP)
o.
SEC. 1 Submission of affidavits and position papers. - Within
ten (1 O) days from receipt of the order mentioned in the next preceding
section, the parties shall submit the affidavits of their witnesses and
other evidence on the factual issues defined in the order, together with
their position papers setting forth the law and the facts relied upon by
them. (9, RSP)
SEC. 11. Period for rendition of judgment. - Within thirty (30)
days after receipt of the affidavits and position papers, or the expiration
of the period for filing the same, the court shall render judgment.
However should the court find it necessary to clarify certain
material facts, 1it may, during the said period, issue an order. specifyi~g
the matters to be clarified, and require the parties to submit affidavits
or other evidence on the said matters within ten (10) days from receipt
543
 · ~-

QUESTIONS AND ANSWERS IN

I APPENDIXA'
REMEDIAL LAW RULES OF CIVll'. PROCEDURE

of said order. Judgment shall be rendered within fifteen (15) days after A violation
. of this requirement may su b'Jee t th e party or the counsel
who submits . the same. . to disciplinary actlo n,. and s h a 11 b e cause to
the receipt of the last affidavit or the expiration of the period for filing.
the same. expunge the inadmissible affidavit or portion thereof from the record
(20, RSP) .
The court shall not resort to the foregoing procedure just to gain
time for the rendition of the judgment. (n) .SEC.
. 15.
. Preliminary
. inlunction
~ . - The cou rt may grant· pre 1.1m1-.
SEC. 12. Referral for conciliation. - Cases requiring referral nary lnjunction, m accordance with the provisions of Rule 58 hereof,·to
for conciliation, where there is no showing of compliance with such prevent the defendant from committing further acts of dispossession
against the plaintiff.
requirement, shall be dismissed without prejudice, and may be revived
only after that requirement shall have been complied with. (18a, RSP) A possess~r deprived of his possession through forcible entry
SEC. 13. Prohibited pleadings and motions. - The following or unla~vful detainer may, within five (5) days from the filing of the
petitions, motions, or pleadings shall not be allowed: com~lamt, pres~nt a motion in the action for forcible entry or unlawful
detainer ~or !he ~ssuance o~ a writ of preliminary mandatory injunction to
1. Motion to dismiss the complaint except on the ground restore him In his possession. The court shall decide the motion within
of lack of jurisdiction over the subject matter, or failure lo comply thirty (30) days from the filing thereof. (3a)
with Section 12;
SEC. 16. Resolving defense of ownership. - When the defendant
2. Motion for a bill of particulars; raises the defense of ownership in his pleadings and the question of
3. Motion for new trial, or for reconsideration of a judg- possession cannot be resolved without deciding the Issue of ownership,
ment, or for reopening of trial; the Issue of ownership shall be resolved only to determine the issue of
possession. (4a)
4. Petition for relief from judgment;
SEC. 17. Judgment. - If after trial the court finds that the
5. Motion for extension of time to file pleadings, affidavits
a1Jegallons of the complaint are true, it shall render judgment in favor
or any other paper;
of the plaintiff for the restitution of the premises, the sum justly due
6. Memoranda; as arrears of rent or as reasonable compensation for the use and
occupation of the premises, attorney's fees and costs. If It finds that
7. Petition for certiorari, mandamus, or prohibition against
said allegations are not true, it shall render judgment for the defendant
any interlocutory order issued by the court;
to recover his costs. If a counterclaim is established, the court shall
8. Motion to declare the defendant in default: render judgment for the sum found in arrears from either party and
award costs as justice requires. (6a)
9. Dilatory motions for postponement;
10. Reply;
SEC. 18. Judgment conclusive only on possession; not conclusive
in actions involving title or ownership. - The judgment rendered in an
11. Third-party complaints: action for forcible entry or detainer shall be conclusive with respect
to the possession only and shall in no wise bind the title or affect the
12. Interventions. (19a, RSP)
ownership of the land or building. Such judgment shall not bar an action
SEC. 14. Affidavits. - The affidavits required to be submitted between the same parties respecting title to the land or building.
under this Rule shall state only facts of direct personal knowledge of
The judgment or final order shall be appealable to the appropriate
the affiants which are admissible in evidence, and shall show their
Regional Trial Court which shall decide the same on the basis of the
competence to testify to the matters stated therein.

544 545
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
entire record of the proceedings had in the court of origin and such
. memoranda and/or briefs as may be submitted by the parties or required
by the Regional Trial Court. (7a)
SEC. 19. Immediate execution of judgment; how to stay same.
If judgment is rendered against the 'defendant, execution shall issue
immediately upon motion, unless an appeal has been perfected and
the defendant to stay execution files a sufficient supersedeas bond,
approved by the Municipal Trial Court and executed in favor of the
plaintiff to pay the rents, damages, and costs accruing down to the
time of the judgment appealed from, and unless, during the pendency
of the appeal, he deposits with the appellate court the amount of rent
due from time to time under the contract, if any, as determined by the
judgmen-t of the Municipal Trial Court. In the absence of a contract, he
shall deposit with the Regional Trial Court the reasonable value of the
use and occupation of the premises for the preceding month or period
at the rate determined by the judgment of the lower court on or before
the tenth day of each succeediog month or period. The supersedeas
bond shall be transmitted by the Municipal Trial Court, with the other
papers, to the clerk of the Regional Trial Court to which the action is
· appealed.
All amounts so paid to the appellate court shall be deposited with
said court or authorized government depositary bank, and shall be
held there until the final disposition of the appeal, unless the court, by
agreement of the interested parties, or in the absence of reasonable
grounds of opposition to a motion to withdraw, or for justifiable reasons,
shall decree otherwise. Should the defendant fail to make the payments
above prescribed from time to time during the pendency of the appeal,
the appellate court, upon motion of the plaintiff, and upon proof of such
failure, shall order the execution of the judgment appealed from with
respect to the restoration of possession, but such execution shall not
be a bar to the appeal taking its course until the final disposition thereof
on the merits.
·. After the case is decided by the Regional Trial Court, any money
paid to the court by the defendant for purposes of the stay of execution
shall be disposed of in accordance with the provisions of the judgment
of the Reg!onal Trial Court. In any case wherein it appears that the
defendant has been deprived of the lawful possession of land or building
pending the appeal by virtue of the execution of the judgment of the
546
APPENDIX A
RULES OF CIVIL PROCEDURE
Municipal Trial Court damag f . .
. •. es or such deprivation of possession and
restoration. of pos~ess1on may be allowed the defendant in the judgment
of the Regional Trial Court disposing of the appeal. (Ba) ,,, .
SEC: 20. Prelimin~ry_mandatory injunction in case of appeal. -
Upon motion of the pla1~tiff, wi~hin-ten (10) days from the perfection
of t~e .appeal to the Re_g1_onal Trial Court, the latter may issue a writ of
prehmma'!' ma~datory mlunctlon to restore the plaintiff in possession if
the court is satisfied that the defendant's appeal is frivolous or dilatory,
or that the appeal of the plaintiff is prima facie me_ritorious. (9a)
SEC. 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
appea! t~at may ~e taken therefrom. (10a) - ·
Rule 11 · ·
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. (1a)
.. SEC. 2. Remedy therefrom. - The person adjudged in direct
contempt by any court may not appeal therefrom, but ma'y avail himself
of the remedies of certiorari or prohibition. The execution of the judgment
shall be suspended pending resolution of such petition, provided such
person files a bond fixed by the court which rendered_ the judgment and
conditioned that he will abide by and perform the judgment should the
petition be decided against him. (2a) ·
SEC. 3. Indirect contempt to be punished after charge and hear-
ing. -After a charge in writing has been filed, and an opportunity given
· to the respondent to comment thereon within such period as may be
·547
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
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:
(a) Misbehavior of an officer of a court in the performance
of his official duties or in his official transactions;
(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;
(c) Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting direct con-
tempt under Section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice:
(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; and
(g) The rescue, or attempted rescue, of a person or pro-
perty in the custody of an officer by virtue of an order or process
of a court held by him.
But 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. (3a)
SEC. 4. How proceedings commenced. - Proceedings for
indirect contempt may be initiated motu proprio by the court against
which the contempt was committed by an order or any other formal
charge requiring the respondent to show cause why he should not be
punished for contempt.
In all other cases, charges for indirect contempt shall be com-
menced by a verified petition with supporting particulars and certified
true copies of documents or papers involved therein, and upon full
compliance with the requirements for filing initiatory pleadings for civil
actions in the court concerned. If the contempt charges arose out of
548
APPENDIX A
RULES OF CIVIL PROCEDU~E
or are related to a principal action pending in the court, the petition for
contemp.t shall allege that fact but said petition shall be docketed heard
and d~cid~d separately, unless the court in its discretion ord~rs the
consolldat1on of the contempt charge and the pr· · 1
· d d · . (
ti f · · t
mcipa ac ion or Join
heanng an ecision. n)
SEC. 5. Where charg_e to be filed. - Where the charge for indirect
conte1,:1pt has bee~ committed against a Regional Trial Court or a court
of equivalent or higher rank, or against an officer appointed by it the
cnarse may be_ filed with such court. Where such contempt has been
com.m1tted ~ga1nst a lower court, the charge may be filed with the
Regional Tn~I Court of the place in which the lower court is sitting; but
the proceedings may also be instituted in such lower court subject to
appeal to the Regional Trial Court of such place in the same manner
as provided in Section 11 of this Rule. (4a; En Banc Resolution, July
21, 1998) .
SEC. 6. Hearing; release on bail. - If the hearing is not ordered
to be had forthwith, the respondent may be released from custody upon
filing a bond. in an amount fixed by the court, for his appearance at the
hearing of the charge. On the day set therefor, the court shall proceed
to investigate the charge and consider such comment, testimony or
defense as the respondent may make or offer. (5a)
SEC. 7. Punishment for indirect contempt. - If the respondent is
adjudged guilty of indirect contempt committed against a Regional Trial
Court or a court of equivalent or higher rank, he may be punished by a
fine not exceeding thirty thousand pesos or imprisonment not exceeding
six (6) months, or both. If he is adjudged guilty of contempt committed
against a lower court, he may be punished by a fine not exceeding five
thousand pesos or imprisonment not exceeding one (1) month, or both.
If the contempt consists in the violation of a writ of injunction, temporary
restraining order or status quo order, he may also be ordered to make
complete restitution to the party injured by such violation of the property
involved or such amount as may be alleged and proved.
The writ of execution, as in ordinary civil actions, shall issue for the
enforcement of a judgment imposing a fine unless the court otherwise
provides. (6a)
SEC. 8. Imprisonment until order obeyed. - When the contempt
consists in the refusal or omission to do an act which is yet in the power
549
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
of the respondent to perform, he may be imprisoned by order of the
court concerned until he performs it. (7a)
SEC. 9. Proceeding when party released on bail fails to answer.
_ When a respondent released on bail fails to appear on the day fixed
tor the hearing, the court may issue another order of arrest or may
order the bond for his appearance to be forfeited and confiscated, or
both· and if the bond be proceeded against, the measure of damages
shall' be the extent of the loss or injury sustained by the aggrieved
party by reason of the misconduct for which the contempt charge was
prosecuted, with the costs of the proceedings, and such recovery shall
be for the benefit of the party injured.· If there is no aggrieved party, the
bond shall be liable and disposed of as in criminal cases. (Ba)
SEC. 1 o. Court may release respondent. - The court whlcti .
issued the order imprisoning a person for contempt may dlscharqa
him from imprisonment when it appears that public interest will not be
prejudiced by his release. (9a)
SEC. 11. Review ofjudgment or final order; bond for stay. - The
judgment or final order of a court in a case of indirect contempt may be
appealed to the proper court as in criminal cases. But execution of the
judgment or final order shall not be suspended until a bond is filed by
the person adjudged in contempt, in an amount fixed by the court from
which the appeal is taken, conditioned that if the appeal be decided
against him he will abide by and perform the judgment or final order.
(10a)
SEC. 12. Contempt against quasi-judicial entities. - Unless
otherwise provided by law, 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. The Regional Trial Court of the place wherein the contempt
has been committed shall have jurisdiction over such charges as may
be filed therefor. (n) · · '
550
APPENDIX 8
REVISED RULE ON SUMMARY
PROCEDURE
RESOLUTION OF THE COURT EN BANC DATED OCTOBER
15, 1991 PROVIDING FOR THE REVISED RULE ON SUMMARY
PROCEDURE FOR METROPOLITAN TRIAL COURTS, MUNICIPAL
TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS ANO
MUNICIPAL CIRCUIT TRIAL COURTS.
Pursuant to Section 36 of the Judiciary Reorganization Act of
1980 (8.P. Big. 129) and to achieve an expeditious and inexpensive
determination of the cases referred to herein, the Court Resolved to
promulgate the following Revised Rule on Summary Procedure:
APPLICABILITY
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:
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).
(2) All other cases, except probate proceedings, where the total
amount of plaintiff's claim does not exceed one hundred thousand pesos
(P100,000) or, two hundred thousand pesos (P200,000) in Metropolitan
Manila, exclusive of interest and costs. (As amended by A.M. No .. 02-1~-
09-SC, dated Nov. 12, 2002; this amendment took effect on November
25, 2002)
551
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) 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 one thousand pesos (P1 ,000), 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).
This Rule shall not apply to a civil case where the plaintiff's cause
of action is pleaded in the same complaint with another cause of action
subject to the ordinary procedure; nor to a criminal case where the
offense charged is necessarily related to another criminal case subject
to the ordinary procedure.
SEC. 2. Determination of applicability. - Upon the filing of a civil
or criminal action, the court shall issue an order declaring whether or
not the case shall be governed by this Rule.
A patently erroneous determination to avoid the application of the
Rule of Summary Procedure is a ground for disciplinary action.
II
CIVIL CASES
SEC. 3. Pleadings. -
A Pleadings, allowed. - The only pleadings allowed to be
filed are the complaints, compulsory counterclaims and cross-claims
pleaded in the answer, and the answers thereto.
B. Verification. -All pleadings shall be verified.
SEC. 4. Duty of court. - After the court determines that the case
falls under summary procedure, it may, from an examination of the
allegations therein and such evidence as may be attached thereto,
dismiss the case outright on any of the grounds apparent therefrom for
the dismissal of a civil action.
552
REVISED APPENDIX B
RULE ON SUMMARY PROCEDURE
If no ground for dismissal is found it shall f rth ith .
1~~~e
whic1h shall state that the summary procedur~ u:~er ~~~:~~~ .
appy.
SEC. 5. Answer. -Within ten (10) days from service of summons
the defendant sh~II ~le his answer to the complaint and serve a cop;
mereof on the plaintiff. Affirm~tive and negative defenses not pleaded
therein ~hall be deemed waived, except for lack of jurisdiction over
the subJe~t matter. Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred. The answer to
counterclaims. ?r
cross-claims shall be filed and served within ten (10)
days from service of the answer in which they are pleaded.
SEC. 6. Effect of failure to answer. - Should the defendant fail
to answer the complaint within the period above provided, the court,
motu proprio, or on motion of the plaintiff, shall render judgment as
may be warranted by the facts alleged in the complaint and limited to
what is prayed for therein: Provided, however, That the court may in its
discretion reduce the amount of damages and attorney's fees claimed
for being excessive or otherwise unconscionable. This is without
prejudice to the applicability of Section 4, Rule 18 of the Rules of Court,
if there are two or more defendants.
SEC. 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 shell be en~itled to judgment on
his counterclaim in accordance :With Section 6 hereof. All cross-claim~
shall be dismissed.
If a sole defendant shall faii°to appear, the plaintiff shall be entitled
to judgment in accordance with sectlon 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 defe~s_e shall appear at
the preliminary conference. . .:
SEC. 8. Record of preliminary conference. - Within five (5) days
after the termination of the preliminary conference, the court shall
553
 QUESTIONS AND ANSWERS IN . APPENDIX B ·
REMEDIAL LAW REVISED RULE ON SUMMARY PROCEDURE

Issue an order stating the matters taken up therein, includtnq but not Ill
llmlted to: CRIMINAL CASES
(a) Whether the parties have arrived at an amicable settle-
ment, and If so, the terms thereof; : xxx xxx -s xxx
(b) The stipulations or admissions entered into by the IV
parties; COMMON PROVISIONS
(c) Whether, on the basis of the pleadings and the stlpu-
. SEC. 18. Referral to· Lupon'. - Cases requiring referral to the
. latlons and admissions made by 'the parties, judgment may be
Lupon for conciliation under the provisions of Presidential D~cree No.
rendered without the need of further proceedlnqs. in which
1508 where there is no showing of compliance with such requirement,
event the judgment shall be rendered within thirty (30) days from
shall be dismissed without prejudice, and may be revived only ·after
Issuance of the order; ·
such requirement shall have been complied with. Tliis provision' shall
(d) A clear specification of. material facts which remain not apply to criminal cases where the accused was arrested without a
controverted; and warrant.
: (e) Such other matters intended to expedite the disposi- SEC. 19. Prohibited pleadings and motions. - The following
tion of the case. pleadings, motions, or petitions shall not be allowed in the cases
covered by this Rule:
SEC. 9. Submission of affidavits and position papers. - Within
ten days from receipt of the order mentioned in the next preceding (a) Motion to dismiss the complaint or to quash the com-
section, the parties shall submit the affidavits of their witnesses and plaint or information.except on the ground of lack of jurisdiction
other evidence on the factual issues defined in the order, together with over the subject matter, or failure to comply with the preceding
their position papers setting forth the law and the facts relied upon by section;
them.
(b) Motion for a bill of particulars;
SEC. 10. Rendition of judgment. - Within thirty (30) days after
(c) Motion for new trial, or for reconsideration of a judg-
receipt of the last affidavits and position papers, or the expiration of the
ment, or for reopening of trial;
period for filing the same, the court shall render judgment.
(d) Petition for relief from judgment;
However, should the court find it necessary to clarify certain
material facts, it may, during the said period, issue an order specifying ( e) Motion for extension of time to file pleadings, affidavits
the matters to be clarified, and require the parties to submit affidavits or or any other paper;
other evidence on the said matters within ten (1 O) days from receipt of
(f) Memoranda;
said order. Judgment shall be rendered within fifteen (15) days after the
receipt of the last clarfficatory affidavits, or the expiration of the period (g) Petition to~ certiorari, mandamus, or prohibition against
for filing the same. · any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
The court shall not resort to the clarfficatory procedure to gain time
for the rendition of the judgment · . (i) Dilatory motions for postponement;

0) Reply;

554 555
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
(k) Third-party complaints; and
(I) Interventions.
SEC. 20. Affidavits. - The affidavits required to be submitted
under this Rule shall state only facts of direct personal knowledge of
the affiants which are admissible in evidence, and shall show their
competenceto testify to the matters stated therein.
A violation of this requirementmay subject the party or the counsel
who submits the same to disciplinary action, and shall be cause to
expunge the inadmissible affidavit or portion thereof from the record.
SEC. 21. Appeal. - The judgment or final order shall be appeal-
able to the appropriateregional trial court which shall decide the same in
accordancewith Section 22 of Batas Pambansa Big. 129. The decision
of the regional trial court in civil cases governed by this Rule, including
forcible entry and unlawful detainer, shall be immediately executory,
without prejudice to a further appeal that may be taken lheref rom.
Section 10 of Rule 70 shall be deemed repealed.
SEC. 22. Applicability of the regular rules. - The regular proce-
dure prescribed in the Rules of Court shall apply to the special cases
herein provided for in a suppletory capacity lnsofar as they are not
inconsistentherewith.
SEC. 23. Effectivity. - This revised Rule on Summary Procedure
shall be effective on November 15, 1991.
556
APPENDIX C
INTERIM RULES OF PROCEDURE ON
CORPORATE REHABILITATION (2000)*
Rule 1
COVERAGE
SECTION 1. Scope. - These Rules shall apply to petitions for
rehabilitation filed by corporations, partnerships, and associations
pursuant to Presidential DecreeNo. 902-A, as amended.
SEC. 2. Applicability to Rehabilitation Cases Transferred from
the Securities and Exchange Commission. - Cases for rehabilitation
transferred from the Securities and Exchange Commission to the
Regional Trial Courts pursuant to RepublicAct No. 8799, otherwise
known as The Securities RegulationCode, shall likewise be governed
by these Rules.
Rule2
DEFINITION OF TERMS AND
CONSTRUCTION
SECTION 1. Definition of Terms. - For purposesof these Rules:
"Administrative expenses" shall refer to those expenses
incurred in the ordinary course of business of the debtor after the
issuance of the stay order, excludinginterest payableto creditors.
"Affidavit of General Financial Condition" shall refer to a
verified statement on the general financial condition of the debtor
required in Section 2, Rule 4 of these Rules.
"Board of Directors" shall include the executivecommitteeor
the management of a partnershipor association.
"Effective December 15, 2000 perA.M. No. 00-8-10-SC.
557
 I j
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
"Claim" shall include all claims or demands of whatever nature
or character against a debtor or its property, whether for money or
otherwise.
"Creditor" shall mean any holder of a Claim.
"Court" shall refer to the proper Regional Trial Court designated
to hear and decide the cases contemplated under these Rules.
"Debtor" shall mean any corporation, partnership, or association,
whether supervised or regulated by the Securities and Exchange Com-
mission or other government agencies, on whose behalf a petition for
rehabilitation has been filed under these Rules.
"Stockholder"shall include a member of a non-stock corporation
or association, or a partner in a partnership.
SEC. 2. Construction.- These Rules shall be liberally' construed
to carry out the objectives of Sections 5(d), 6(c) and 6(d) of Presidential
Decree No. 902-A, as amended, and to assist the parties in obtaining
a just, expeditious, and inexpensive determination of cases. Where
applicable, the Rules of Court shall apply suppletorily to proceedings
under these Rules.
Rule 3
GENERAL PROVISIONS
SECTION 1. Nature of Proceedings. - Any proceeding initiated
under these Rules shall be considered in rem. Jurisdiction over all
those affected by the proceedings shall be considered as acquired
~pan publication of the notice of the commencement of the proceedings
rn any newspaper of general circulation in the Philippines in the manner
prescribed by these Rules. . ··
The proceedings shall also be summary and non-adversarlalln
nature. The following pleadings are prohibited: '
a. Motion to dismiss; ·
b. Motion for a bill of particulars;
c. Motion for new trial or for reconsideration· I
d. Petition· for relief;
e. · Motion for extension;
558
APPENDIXC
INTERIM RULES OF PROCEDURE ON CORPORATE
REHABILITATION (2000)
f. Memorandum;
g. Motion for postponement·
'
h. Reply or Rejoinder;
i. Third-party complaint; and
j. Intervention.
. Any pleading, motion, opposition, defense, or claim filed by any
interested party shall be supported by verified statements that the affiant
has read the s~me and that the factual allegations therein are true
and correct of his personal knowledge or based on authentic records
and shall conta~n. as annexes such documents as may be deemed by
the party subrnittinq the same as supportive of the allegations in the
affidavits. The court may decided matters on the basis of affidavits and
other documentary evidence. Where necessary, the court shall conduct
clarificatory hearings before resolving any matter submitted to it for
resolution.
SEC. 2. Venue. - Petitions for rehabilitation pursuant to these
Rules shall be filed in the Regional Trial Court having jurisdiction over
the territory where the debtor's principal office is located.
SEC: 3. Service of Pleadings and Documents. - When so
authorized by the court, any pleading and/or document required by
these· Rules may be filed with the court and/or served upon the other
parties by facsimile transmission (fax) or electronic mail (e-mail). In
such cases, the date of transmission shall be deemed to be the date
of service. In 'case of a voluminous pleading or document, the court
may, motu proprio or upon motion, waive the requirement of service,
provided, a copy thereof together with all its attachments is duly filed
with the court and is made available for examination and reproduction
by any party, and provided, further, that a notice of such filing and
availability is duly served on the parties.
SEC. 4. Trade Secrets and Other Confidential Information. -
On motion or on its own initiative, the court may issue an order to
protect trade secrets or other confidential research, development, or
commercial information belonging to the debtor.
s.
SEC. Executory Nature of Orders.- Any orde~ ~ssued by _the
court under these Rules is immediately executory. A petition for review
or an appeal therefrom shall not stay the execution of the order unless
559
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
restrained or enjoined by the appellate court. The review of any order or
decision of the court or an appeal therefrom shall be in accordance with
the Rules of Court; Provided, however, That the reliefs ordered by the
trial or appellate courts shall take into account the need for resolution of
proceedings in a just, equitable, and speedy manner.
Rule4
REHABILITATION
SECTION 1. Who May Petition. - Any debtor who foresees the
impossibility of meeting its debts when they respectively fall due, or any
creditor or creditors holding at least twenty-five percent (25%) of the
debtor's total liabilities, may petition the proper Regional Trial Court to
have the debtor placed under rehabilitation.
SEC. 2. Contents of the Petition. - The petition filed by the debtor
must be verified and must set forth with sufficient particularity all the
following material facts: (a) the name and business of the debtor; (b)
the nature of the business of the debtor; (c) the history of the debtor; (d)
the cause of its inability to pay its debts; (e) all the pending action's or
proceedings known to the debtor and the courts or tribunals where they
are pending; (f) threats or demands to enforce claims or liens against
the debtor; and (g) the manner by which the debtor may be rehabilitated
and how such rehabilitation may benefit the general body of creditors,
employees, and stockholders.
The petition shall be accompanied by the following documents:
a. An audited financial statement of the debtor at the end
of its last fiscal year;
b. · Interim financial statements as of the end of the month
prior to the filing of the petition;
c. Schedule of Debts and Liabilities which lists all the
creditors of the debtor indicating the name and address of each
creditor, the amount of each claim as to principal, interest, or
penalties due as of the date of filing, the nature of the claim, and
any pledge, lien, mortgage judgment, or other security given for
the payment thereof; . .
d. An Inventory of Assets which must list with reasonable
specificity all the assets of the debtor, stating the nature of each
560
APPENDIX·C
INTERIM RULES OF PROCEDURE ON CORPORATE
REHABILITATION (2000)
: . asset, the location and condition thereof th b k I k
value of the ass t d . , e oo va ue or mar et
. . e , an attaching the corresponding certificate of
title therefor
h · · in · case of real property, o r th e ev1id ence o f tltl
I e or
owne~s 1P in case ?f movable property, the encumbrances, liens
or claims thereon, if any, and the identities and addresses of the
lienholders and cl~imants. The Inventory shall include a Schedule
of Accounts Receivable which must indicate the amount of each,
the perso.n~. from whom due, the date of maturity, and the degree
of collectioility categorizing them as highly collective to remotely
collectible;
e. A rehabilitation plan which confo.rms to the minimal
requirements set out in Section 5,· Rule 4 of these Rules;
. .
. . f. A
Schedule of Payments and disposition of assets
which. the debtor may have effected within three (3) months
immediately preceding the filing of the petition;
: g: · A Schedule of the Cash Flow of the debtor for three
(3) months immediately preceding the filing of the petition, and a
detailed schedule of the projected case flow for the succeeding
three (3) months;
h. rA Statement of Po~sible·Claims by or against the deb-
a
tor which must contain. 'brief statement of the facts which might
give rise to the claim and an estimate of the probable amount
thereof;' . . . .· .
••
1
L · . AnAffi.davit of General Financial Conditi~n w~ich shall
contain answers to the questions or matters prescnbed m Annex
"A" hereof; . .
j." · At least three (3) nominees torthe-position of Reha-
bilitation Receiver as well as their qualifications and addresses,
including but not limited to their telephone numbers, fax number
and e-mail address; and
k. ACertificate attesting, under oath. tliat th~ (a) filing of
the petition has been duly authorized; and (b) t~.e directors a~d
stockholders have irrevocably approved and/or consented to, m
accordance ·with existing laws, all actions or matters nec~s~ary
and desirable to rehabilitate the debtor includinq, but not hm1ted
to amendments to the articles of incorporat,o~ and by-law~ or
'. · . increase or decrease m the authonzed
articles of part~ership, of bonded indebtedness; alienation,
capital stock; issuance
561
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
transfer, or encumbrance of assets of the debtor; and modification
of shareholders' rights.
Five (5) copies of its petition shall be filed with the court.
SEC. 3. Verification by Debtor. - The petition filed by the debtor
must be verified by an affidavit of a responsible officer of the debtor and
shall be in a form substantially as follows:
"I,_, (position) of (name of petitioner), do solemnly
swear that the petitioner has been duly authorized to file
the petition and that the stockholders and board of directors
(or governing body) have approved and/or consented to,
in accordance with law, all actions or matters necessary
or desirable to rehabilitate the debtor. There is no petition
for insolvency filed with any other body, court, or tribunal
affecting the petitioner. The Inventory of Assets and the
Schedule of Debts and Liabilities contains a full, correct,
and true description of all debts and liabilities and of all
goods, effects, estate, and property of whatever kind or
class belonging to petitioner. The Inventory also contains a
full, correct, and true statement of all debts owing or due to
petitioner, or to any person or persons in trust for petitioner
and of all securities and contracts whereby any money
may hereafter become due or payable to petitioner or by
or through which any benefit or advantage may accrue to
petitioner. The petition contains a concise statement of the
fac~s g!ving rise, or which might give rise, to any cause of
action m favor of petitioner. Petitioner has no land, money,
stoc~. expectancy, or property of any kind, except those set
forth m the Inventory of Assets. Petitioner has, in no instance,
created or acknowledged a debt for a greater sum than the
true and correct amount. Petitioner, its officers, directors,
and stockholders have not, directly or indirectly, concealed,
fraudulently sold, or otherwise fraudulently disposed of, any
pa~ of petitioner's real or personal property, estate, effects,
or nghts of action, and petitioner, its officers, directors, and
~tockh~lder~ have not in any way compounded with any of
its creditors m order to give preference to such creditors, or
to receive or to accept any profit or advantage therefrom, or
to defraud or deceive in any manner any creditor to whom
petitioner is indebted. Petitioner, its officers, directors, and
562
APPENDIX C
INTERIM RULES OF PROCEDURE ON CORPORATE
REHABILITATION (2000)
; s~~ckholders have been acting in good faith and with due
diligence."
~EC. 4. Cr~ditor~i~itiatedPetitions.- Where the petition is filed by
a cred_1~or ?r creditors, it rs sufficient that the petition is accompanied by a
reha~1htat1on plan .and a list of nominees to the position of Rehabilitation
Rece1v~~ and verified by a sworn statement that the affiant has read ·
the petition and that its contents are true and correct of his personal
knowledge or based on authentic records obtained from the debtor.
SEC. 5. RehabilitationPlan.- The rehabilitation plan shall include:
(a) the desir~? b~siness targets or goals. and the duration and coverage
of the rehabilitation; (b) the terms and conditions of such rehabilitation
which shall include the manner of its implementation, giving due
regard. to the interests of secured creditors; (c) the material financial
commitments to support the rehabilitation plan; (d) the means for the
execution of the rehabilitation plan, which may include conversion of
the debts or any portion thereof to equity, restructuring of the debts,
dacion en pago,· or sale of assets or of the controlling interest; (e) a
liquidation analysis that estimates the proportion of the claims that the
creditors and shareholders would receive if the debtor's properties
were liquidated; and (f) such other relevant information to enable a
reasonable investor to make an informed decision on the feasibility of
the rehabilitation plan,
SEC. 6. Stay Order.~ If the court finds the petition to be sufficient
in form and substance, it shall, not later than five (5) days from the
filing of the petition, issue an Order: (a) appointing a Rehabilitation
Receiver and fixing his bond; (b) staying enforcement of all claims,
whether for money or otherwise and whether such enforcement is by
court action or otherwise, against the debtor, its guarantors and sureties
not solidarily liable with the debtor; (c) prohibiting the debtor from
selling, encumbering, transferring, or disposing in any manner any of
its properties except in the ordinary course of business; (d) prohibiting
the debtor from making any payment of its liabilities outstanding as at
the date of filing of the petition; (e) prohibiting the debtor's s.uppl(es of
goods or services from withholding supply of goods and services m the
ordinary course of business for as long as the debtor makes payments
for the services and goods supplied after the issuance of the stay order;
(f) directing the payment in full 'of all administrativ~ ~-xpense~ incurred
after the issuance of the stay order; (g) fixing the initial heann~ on the
petition not earlier than forty-five (45) days but not later than sixty (60)
563·
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
d ays from the filing thereof; (h) directing · the· petitioner
h Ph'I'
to publish the
·
Order in a newspaper of general circul.ati~n in. t e 11pp!nes once a
week for two (2) consecutive weeks; (1) directing all creditors an~ all
interested parties (including the Securities and Exchange Comm_lss1on)
to file and serve on the debtor a verified comment on or opposition to
the petition, with supporting affidavits and documents, not l~ter than
ten (1 O) days before the date of the .initial hearing and p~tt.ing. them
on notice that their failure to do so will bar them from parttclpatinq in
the proceedings; and U) directing the c~~ditors a.nd interested p~rties to
secure from the court copies of the petition and its annexes within. such
time as to enable themselves to file their comment on or ~pposit1on to
the petition and to prepare for the initial hearing of the petition.
SEC. 7. Service of Stay Order on Rehabilitation Receiver. - SEC. 11. Period of the Stay Order. - The stay order shall be
The petitioner shall immediately serve a copy of the stay orde~ on t~e
Rehabilitation Receiver appointed by the court, who shall manifest his
acceptance or non-acceptance of his appointment not later than ten
(10) days from receipt of the order.
SEC. 8. Voidability of Illegal Transfers and Preferences. - Upon
motion or motu proprio, the court may declare void any transfer of
property or any other conveyance, sale, payment, or agreement made
in violation of its stay order or in violation of these Rules.
SEC. 9. Initial Hearing. - On or before the initial hearing, the
petitioner shall file the publisher's affidavit showing that the publication
requirements specified above had been complied with. If the court is
satisfied that said jurisdictional requirement has been complied with, it
shall summarily hear the parties on any matter relating to the petition
as well as any comment and/or opposition filed in connection therewith.
The court may hold additional clarificatory hearings where there is need
to further clarify matters but in no event shall such additional hearings
be held beyond one hundred eighty (180) days from the date of the
initial hearing.
If, after the initial hearing, the court is satisfied that there is merit
in the petition, it shall give due course to the petition and immediately
ref er the petition and its annexes to the Rehabilitation Receiver who
shall evaluate the rehabilitation plan and submit his recommendations
to the court not later than one hundred twenty {120) days from the date
of the initial hearing.
SEC. 10. Opposition to or Comment on the Petition. - Every
creditor of the debtor or any interested party shall file his verified
564
APPENDIX C
INTERIM RULES OF PROCEDURE ON CORPORATE
REHABILITATION (2000)
opposition to or comment on the petition not later than ten (10) days
before the date of the initial hearing. After such time, no creditor or
interested party shall be allowed to file any comment or opposition
thereto without leave of court.
If the Schedule of Debts and Liabilities omits a claim or liability, the
creditor concerned shall attach a verified statement of the obligations
allegedly due it to its comment or opposition.
The court shall likewise require the Securities and Exchange
Commission to comment on the petition. The Commission shall coor-
dinate with the government agency concerned in appropriate cases for
purposes of filing its comment.
effective from the date of its issuance until the dismissal of the petition
or the termination of the rehabilitatfon proceedings.
The petition shall be dismissed if no rehabilitation plan is approved
by the court upon the lapse of one hundred eighty (180) days from the
date of the initial hearing. The court may grant an extension beyond this
period only if it appears by convincing and compelling evidence that the
debtor may successfully be rehabilitated. In no instance, however, shall
the period for approving or disapproving a rehabilitation plan exceed
eighteen (18) months from the date of filing of the petition.
· SEC. 12. Relief from, Modification, or Termination of Stay Order.
- The court may, on motion or motu proprio, terminate, modify, or set
conditions for the continuance of the stay order. or relieve a claim from
the. coverage thereof upon showing that: (a) any of the allega_tion~ in
the petition, or any of the contents of any attachment, or the venfication
thereof has ceased to be true; (b} a creditor does not have adequate
protection over property securing its claim; or (c) the debtor's secu.red
obligation is more than the fair market value of the prope~ s~bJect
of the stay and such property is not necessary for the rehabilitation of
the debtor.
For purposes of this section, the creditor shall lack adequate
protection if it can be shown that:
the debtor fails or refuses to honor a pre-existing
aqreement with the creditor to keep the property insured;
b. the debtor fails or refuses to take commercially reason-
able steps to maintain the property; or
565
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
c. the property has depreciated to an extent that the
creditor is undersecured.
Upon showing of a lack of adequate protection, the court shall
order the rehabilitationreceiverto: (a) make arrangements to provide for
the insuranceor maintenanceof the property, or (b) to make payments
or otherwise provide additional or replacement security such that the
obligation is fully secured. If such arrangements are not feasible, the
court shall modify the stay order to allow the secured creditor lacking
adequate protection to enforce its claim against the debtor; Provided,
however, That the court may deny the creditor the remedies in this
paragraph if such remedies would prevent the continuation of the
debtor as a going concern or otherwise prevent the approval and im-
plementationof a rehabilitationplan.
SEC. 13. Qualificationsof the Rehabilitation Receiver. - In the
appointmentof the RehabilitationReceiver,the following qualifications
shall be taken into considerationby the court:
a. Expertiseand acumen to manage and operate a busi-
ness similar in size and complexityto that of the debtor;
b. Knowledgein management,finance, and rehabilitation
of distressedcompanies;
c. General familiarity with the rights of creditors in sus-
pensionof paymentsor rehabilitationand general understanding
of the duties and obligationsof a Rehabilitation Receiver· I
d. Good moral character,independence, and integrity;
e. Lack of a conflict of interest as defined in these Rules·
and ' to the Schedule of Debts and Liabilities;
f. Willingnessand ability to file a bond in such amount as
may be determinedby the court.
yv'ithout limiting the generality of the following, a Rehabilitation
Receivermay be deemed to have a conflict of interest if:
a. He is a creditor or stockholder of the debtor;
. b. He is engaged in a line of business which competes
wrth the debtor;
.. c. ~e is, or was within two (2) years from the filing of the
petrtron, a dr~ector, officer, or employee of the debtor or any of its
presentcreditors, or the auditor or accountant of the debtor;
566
INTERI APPENDIX C
M RULES OF PROCEDURE ON CORPORATE
REHABILITATION (2000)
t't' d. He is, or was within two (2) years from the filing of the
pe I ion, an underwriterof the outstandingsecurities of the debtor;
e. . He is related by consanguinity or affinity within the
fourt1h crvil degree to any creditor, stockholder director officer
emp oyee, or underwriterof the debtor; or ' ' '
f· He has any other direct or indirect material interest in
the debtor or any creditor.
SEC. 14'. :o'r'!ers
and Functions of the Rehabilitation Receiver.
- The RehabrhtatronReceiver shall not take over the management
and c~ntrol of the debtor but shall closely oversee and monitor the
operation~ of the debtor during the pendency of the proceedings,
and !or this purpose shall have the powers, duties and functions of a
receiver under Presidential Decree No. 902-A, as amended, and the
Rules of Court.
· The Rehabilitation Receiver shall be considered as an officer of
the court. He shall be primarily tasked to study the best way to rehabili-
tate the debtor and to ensure that the value of the debtor's property is
reasonably maintained pendingthe determinationof whether or not the
debtor should be rehabilitated, as well as implement the rehabilitation
plan after its approval. Accordingly,he shall have the following powers
and-functions: ·
a. To verify the accuracy of the petition, including its
annexes such as the Schedule of Debts and Liabilities and the
· Inventory of Assets submitted in support of the petition;
b. To accept and incorporate,when justified, amendments
c. To recommend to the court the disallowance of claims
and rejection of amendments to the Schedule of Debts and
Liabilities that lack sufficient proof and justification;
d. To submit to the court and make available for review by
the creditors, a revised Schedule of Debts and Liabilities;
e. To investigate the acts, conduct, properties, liabilities,
and financial condition of the debtor, the operation of its business
and the desirability of the continuance thereof; and, any other
matter relevant to the proceeding or to the formulation of a rehab-
ilitation plan;
567
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
f. To examine under oath the directors and officers of the
debtor and any other witnesses that he may deem appropriate;
g. To make available to the creditors d~~ument.s and
notices necessary for them to follow and participate rn the
proceedings;
h. To report to the court any fact ascertained by him per-
taining to the causes of the debtor's problems, fraud, preferences,
dispositions, encumbrances, misconduct, mismanagement, and
irregularities committed by the stockholders, directors, manage-
ment, or any other person against the debtor;
i. To employ such person or persons such as lawyers,
accountants, appraisers, and staff as are necessary in performing
his functions and duties as Rehabilitation Receiver;
j. To monitor the operations of the debtor and to imme-
diately report to the court any material adverse change in the
debtor's business;
k. To evaluate the existing assets and liabilities, earnings
and operations of the debtor;
I. To determine and recommend to the court by the best.
way to salvage and protect the interests of the creditors, stock-
holders, and the general public;
m. To study the rehabilitation plan proposed by the debtor
or any rehabilitation plan submitted during the proceedings,
together with any comments made thereon;
n. To prohibit and report to the court any encumbrance,
transfer, or disposition of the debtor's property outside of the
ordinary course of business or what is allowed by the court;
o. To prohibit and report to the court any payments outside
of the ordinary course of business;
p. To have unlimited access to the debtor's employees,
premises, books, records, and financial documents during
business hours;
q. To inspect, copy, photocopy, or photograph any docu-
ment, paper, book, account, or letter, whether in the possession of
the debtor or other persons;
568
APPENDIXC
INTERIM RULES OF PROCEOU
R RE ON CORPORATE
EHABILITATION (2000)
r. To gain entry into an
Inspecting measurin . Y property for the purpose of
designated relevant 0 gb'. surveying, .or photographing it or any
~ect or operationthereon·.
s. To take possession,control,and custodyof the debtor's
assets;
t. To notify counterpartiesand the court as to contracts
that the debtor has decided to continueto perform or breach;
u. To be notifiedof, and to attend all meetingsof the board
of directors and stockholdersof the debtor;
v. To recommendany modificationof an approved reha-
bilitation plan as he may deem appropriate;
w. To bring to the attention of the court any material
change affecting the debtor's ability to meet the obligations under
the rehabilitation plan;
x. To recommend the appointment of a management
committee in the cases provided for under Presidential Decree
No. 902-A, as amended;
y. To recommendthe terminationof the proceedingsand
the dissolution of the debtor if he determinesthat the continuance
in business of such entity is no longer feasible or profitable or
not longer works to the best interest ~f the stockholders, parties-
litigants, creditors, or the general public;
z. To apply to the court any order or directive th?t he m~y
deem necessary or desirable to aid him in th~ exercise of hrs
powers and performanceof his duties and functions; and
aa. To exercise such other powers as may from time to
time be conferred upon him by the court.
SEC. 15. Oath and Bond. - Before enterinq upon his powers,
duties and functions, the Rehabilitation Receiver must b~ sworn tof
• d t post a bond executed m favor o
perform them faithfully, an mus d. ct to guarantee that he
the debtor in such sum ~s the_ court ma: '~~e 'orders of the court. If
0
will faithfully discharge hrs duties an~ e~h that he will perform the
necessary, he shall also declare ~~h:~~~tor will act honestly and in
O
duties of a trustee of the assets t f the debtor in a commercially
good faith, and deal with the asses O .
reasonable manner.
569
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SEC. 16. Fees and Expenses. - The Rehabilitation Receiver and
the persons hired by him shall be entitled. to reasonable pr~fessional
fees and reimbursement of expenses which shall be considered as
administrative expenses.
SEC. 17. Immunity from Suit. - The Rehabilitation Receiver shall
not be subject to any action, claim, or demand in connection with any
act done or omitted by him in good faith in the exercise of his functions
and powers herein conferred.
SEC. 18. Reports. - The Rehabilitation Receiver shall report
every three months to the court or as often as the court may require on
the general condition of the debtor.
SEC. 19. Dismissal of Rehabilitation Receiver. -A Rehabilitation
Receiver may be dismissed by the court, upon motion or motu proprio,
.on account of conflict of interest, or on any of the grounds for removing
a trustee under the general principles of trusts.
SEC. 20. Comments on or Opposition to the Rehabilitation Plan.
- Any creditor or interested party of _record may file comments on_ or
opposition to the proposed rehabilitation plan, with a copy given to the
Rehabilitation Receiver, not later than one hundred twenty (120) days
from the date of the initial hearing. The court shall conduct summary
and non-adversarial proceedings to receive evidence, if necessary, ·in
hearing the comments and opposition to the plan.
SEC. 21. Creditors' Meetings. - At any time before he submits
his evaluation on the rehabilitation plan to the court as prescribed in
Section 9, Rule 4 of this Rule, the Rehabilitation Receiver may, either
alone or with the debtor, meet with the creditors or any interested party
to discuss the plan with a view to clarifying or resolving any matter
connected therewith. · ·
SEC. 22. Modification of the Proposed Rehabilitation Plan. - The
debtor may modify its rehabilitation plan in the light of the comments of
the Rehabilitation Receiver and creditors or any interested party and
submit a revised or substitute rehabilitation plan for the final approval
of the court. Such rehabilitation plan must be submitted to the court not
later than one {1) year from the date of the initial hearing.
SEC. 23. Approval of the Rehabilitation Plan. - The court may
approve a rehabilitation plan even over the opposition of creditors
holding a majority of the total -liabilities of the debtor if, in its judgment,
INTERIM RULES OF~PENDIX C
REHABl~~;T~g~~;~~ CORPORATE
the rehabilitation of the debtor is f .
creditors is manifestly unreasonable~asible and the opposition of the
In determining whether or not the ..
manifestly unreasonable th opp~s1t1on of the creditors is
' e court shall consider the following:
a. That the plan would lik 1 • • •
O
f dltI · 1 e Y provide the objectinq class
ere or~ wit~ compensation greater than that which they would
h~v~ received if the assets of the debtor were sold by a liquidator
within a three-month period;
. b. . That th_e shareholders or owners of the debtor lose at
leas_t their controlling interest as a result of the plan; and
- c. The Rehabilitation Receiver has recommended
approval of the plan.
In approving the rehabilitation plan, the court shall issue the
necessary· orders or processes for its immediate and successful
implementation. It may impose such terms, conditions, or restrictions
as the effective implementation and monitoring thereof may reasonably
require, or for the protection and preservation of the interests of the
creditors should the plan fall.
SEC. 24. Effects of the Rehabilitation Plan. - The approval of the
rehabilitation plan by the court shall result in the following:
a. The plan and its provisions shall be binding upon the
debtor and all persons w~o may be affected by it, including the
creditors, whether or not such persons have participated in the
proceedings or opposed the plan or whether or not their claims
have been scheduled;
b. The debtor shall comply with the provisions of the plan
and shall take all actions necessary to carry out the plan;
c. Payments shall be made to the creditors in accordance
with the provisions of the plan;
d. Contracts and other arrangements between the debtor
and its creditors shall be interpreted as continuing to apply to the
extent that they do not conflict with the provisions of the plan; and
Any compromises on amounts or reschedulin~ of
timintof payments by the debtor s~all be bindin~ on creditors
regardless of whether or not the plan is successfully implemented.

•570 571
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW .
SEC. 25. Revocation of the Rehabilitation Plan on Grounds of
Fraud. - On motion or motu proprio, within ninety (90) days from the
approval of the rehabilitation plan, and after notice and hearing, the
court may revoke the approval thereof on the ground that the same was
secured through fraud.
SEC. 26. Alteration or Modification of the Rehabilitation Plan. -
An approved rehabilitation plan may, on motion, be altered or modified if,
in the judgment of the court, such alteration or modification is necessary
to achieve the desired targets or goals set forth therein.
SEC. 27. Termination of Proceedings. - In case of the failure of
the debtor to submit the rehabilitation plan, or the disapproval thereof
by the court, or the failure of the rehabilitation of the debtor because of
failure to achieve the desired targets or goals as set forth therein, or
the failure of the said debtor to perform its obligations under the said
plan, or a determination that the rehabilitation plan may no longer be
implemented in accordance with its terms, conditions, restrictions, or
assumptions, the court shall upon motion, motu proprio, or upon the
recommendation of the Rehabilitation Receiver, terminate the proceed-
ings. The proceedings shall also terminate upon the successful Imple-
mentation of the rehabilitation plan.
SEC. 28. Discharge of the Rehabilitation Receiver. - Upon ter-
mination of the rehabilitation proceedings, the Rehabilitation Receiver
shall submit his final report and accounting within such period of time
as the court will allow him. Upon approval of his report and accounting,
the court shall order his discharge.
Rules
FINAL PROVISIONS
SECTION 1. Severability. - If any provision or section of these
Rules is held invalid, the other provisions or sections shall not be
affected thereby.
SEC. 2. Effectivity. - These Rules shall take effect on December
?·
1 2000 following its publication in two (2) newspapers of general
circulation in the Philippines.
572
L
·APPENDIX D
KATARUNGANGPAMBARANGAYLAW
V1
SECTION 399. Lupong Taga am .
created in each barangay a P ayapa. - (a) There rs hereby
Iupong tagapamayapa he . ft f d
to as the /upon, composed of the un ' rema ~r re erre \)
ten (10) to twenty (20) b p ong barangay as chairman and
. mem e~. The /upon shall be constituted every i~
three (3) years m the manner provided herein. ·'
.J
(b) ~ny person actually residing or working in the barangay
~ot ot~e~1~e expressly disqu~lified by law, and possessing integrity:
1mp~rt1ahty, mdepend~nce of mind, sense of fairness, and reputation for
probity, may be appointed a member of the /upon.
(c) A notice to constitute the /upon, which shall include the
names of proposed members who have expressed their willingness
to serve, shall be prepared by the punong barangay within the first
fifteen ( 15) days from the start of his term of office. Such notice shall be
posted in three (3) conspicuous places In the barangay continuously for
a period of not less than three (3) weeks.
(d) The punong barangay, taking into consideration any oppo-
sition to the proposed appointment or any recommendations for
appointment as may have been made within the period of posting, shall
within ten (10) days thereafter, appoint as members those whom he
determines to be suitable therefor. Appointments shall be in writing,
signed by the punong barangay, and attested to by the barangay
secretary.
(e) The list of appointed members shall be posted in three (3)
conspicuous places in the barangay for the entire duration of their term
of office; and
(f) In barangays where majority of the inhabitants are members
of indigenous cultural communities, local systems of settling disputes
through their councils of datus or elders shall be recognized without
prejudice to the applicable provisions of this Code. .
573
 QUESTIONSAND ANSWERS IN
REMEDIAL LAW
SECTION 400. Oath and Term of Office. - Upon appointment,
each /upon member shall take an oath of office before the punong
barangay. He shall hold office until a new /upon is constitut~d on
the third year following his appointment unless sooner terminated
by resignation, transfer of residence or place of work, or withdrawal
of appointment by the punong barangay with the concurrence of the
majority of all the members of the /upon.
SECTION 401. Vacancies. - Should a vacancy occur in the
/upon for any cause, the punong barangay shall immediately appoint a
qualified person who shall hold office only for the unexpired portion of
the term.
SECTION 402. Functions of the, Lupon. - The /upon shall:
(a) Exercise administrative supervision over the conciliation
panels provided herein;
(b) Meet regularly once a month to provide a forum for exchange
I:
of ideas among its members and the public on matters relevant to the
: amicable settlement of disputes, and to enable various conciliation panel
members to share with one another their observations and experiences
in effecting speedy resolution of disputes; and
(c) Exercise such other powers and perform such other duties
l /upon or pangkat members who adequately demonstrate the ability.to
and functions as may be prescribed by law or ordinance.
'' · judiciously and expeditiously resolve cases referred to them. While in
SECTION 403. Secretary of the Lupon. - The barangay
secretary shall concurrently serve as the secretary of the /upon. He shall
record the results of mediation proceedings before the punong barangay
and shall submit a report thereon to the proper city or municipal courts.
~e shall also receive and keep the records of proceedings submitted to
hrm by the various conciliation panels.
SECTION 404. Pangkat ng Tagapagkasundo. - (a) There shall
be constituted for each dispute brought before the /upon a conciliation
panel to be known as the pangkat ng tagapagkasundo, hereinafter
referred to as the pangkat, consisting of three (3) members who shall
be chosen by the parties to the dispute from the list of members of the
/upon. ,
Should the parties fail to agree on the pangkat membership, the
same shall be determined by lots drawn by the /upon chairman.
(b) The three (3) members constituting the pangkat shall elect.
from among themselves the chairman and the secretary. The secretary
574
APPENDIX D
KATARUNGANG PAMBARANGAYLAW
shall prepare the minutes of the pangkat proceedings and submit a
copy duly attested to by the chairman to the /upon secretary and to the
proper city or municipal court. He shall issue and cause to be served
notices to the parties concerned.
T~e /upon secretary shall issue certified true copies of any public
record in his custody that Is not by law otherwise declared confidential.
SECTION 405. Vacancies In the Pangkat. -Any vacancy in the
pangkat shaU be chosen by the parties to the dispute from among the
other /upon members. Should the parties fail to agree on a common
choice, the vacancy shall be filled by lot to be drawn by the /upon
chairman.
SECTION 406. Character of Office and Service of Lupon
Members. - (a) The /upon members, while in the performance of their
official duties or on the occasion thereof, shall be deemed as persons
in authority, as defined in the Revised Penal Code.
(b) The /upon or pangkat members shall serve without
compensation, except as provided for in Section 393 and without
prejudice to incentives as provided for in this Section and in Book IV of
this Code. The Department of the Interior and Local Government shall
provide for a system of granting economic or other incentives to the
the performance of their duties, the /upon or pangkat members, whether
in public or private employment, shall be deemed to be on official time,
and shall not suffer from any diminution in compensation or allowance
from said employment by reason thereof.
SECTION 407. Legal Advice on Matters Involving Questions
of Law. - The provincial, city legal officer or prosecutor or the municipal
legal officer shall render legal advice on matters involving questions of
law to the punong barangay or any /upon or pangkat member whenever
necessary in the exercise of his functions in the administration of the
katarungang pambarangay.
SECTION 408. Subject Matter for Amicable Settlement;
Exception Thereto. - The /upon of each baran~ay shall have
authority to bring together the parties actually residing in the same city
or municipality for amicable settlement of all disputes except:
(a) Where one party is the government or any, subdivision or
instrumentality thereof; · ·
575
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
) wnere one party is a public officer or employee, and the
dispute relates to the pertormance of his official functions;
(c) Offenses punishable by imprisonment exceeding one {1)
yea or a fine exceeding Five thousand pesos (~5.000.00);
{d) Offenses where there is no private offended party;
{e) Where the dispute involves real properties located in different
cities or municipalities unless the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;
(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 /upon;
(g) Such other classes of disputes which the President may
determine in the interest of justice or upon the recommendation of the
Secretary of Justice.
The court in which non-criminal cases not falling wlthtn the
authority of the /upon under this Code are filed may, at any time before
trial, motu proprio refer the case to the /upon concerned for amicable
settlement.
SECTION 409. Venue.- (a) Disputes between persons actually
residing in the same barangay shall be brought for amicable settlement
before the /upon of said barangay.
(b) Those involving actual residents of different barangays
within the same city or municipality shall be brought in the barangay
where the respondent or any of the respondents actually resides, at the
election of the complainant.
(c) All disputes involving real property or any interest therein
shall be brought in the barangay where the real property or the larger
portion thereof is situated.
(d) Those arising at the workplace where the contending parties
are employed or at the institution where such parties are enrolled
for study, shall be brought in the barangay where such workplace or
institution is located.
Objections to venue shall be raised in the mediation proceedings
before the punong barangay, otherwise, the same shall be deemed
576
APPENDIX D
KA TARUNGANG PAMBARANGAY LAW
waived. Any legal question which ma confr .
resolving objections to venue herein (ei ~~t the punong barangay in
secretary of Justice or his dul d . erre O may be submitted to the
thereon shall be binding. y es,gnated representative whose ruling
SECTION 410. Procedure for Amicable Sett/ t ( ) Wh
· 't' t d' emen . - a o
may_md, !a.de pri1ocehe hmg- Upon payment of the appropriate filing fee,
O
~ny m 1v1 ua w a~ a. cause of action against another individual
involving. any_ ~atter within the authority of the /upon may complain,
orally or m wntmg, to the !upon chairman of the barangay.
. (b) Mediation. by /upon chairman - Upon receipt of the com-
plaint, the !upon cha,_rman ~hall within, the next working day, summon
the respondent(s), with notice to the complainant(s) for them and their
witnesses to appear before him for a mediation of their conflicting
interests. If he fails in his mediation effort within fifteen (15) days from
the first meeting of the parties before him, he shall forthwith set a date
for the constitution of the pangkat in accordance with the provisions of
this Chapter.
(c) Suspension of prescriptive perfod of offenses - While the
dispute is under mediation, conciliation, or arbitration, the prescriptive
periods for offenses and cause of action under existing laws shall be
interrupted upon filing the complaint with the punong barangay. The
prescriptive periods shall resume· upon receipt by the complainant of
the complaint or the certificate of repudiation or of the certification to
file action issued by the /upon or pangkat secretary: Provided, however,
That such interruption shall not exceed sixty (60) days from the filing of
the complaint with the punong barangay.
(d) Issuance of summons; hearing; grounds for disqualification
- The pangkat shall convene not later than three (3) days from its
constitution; on the day and hour set by the /upon chairman, to hear
both parties and their witnesses, simplify issues, and explore all
possibilities for amicable settlement. For this purpose, the pangkat may
issue summons for the personal appearance of parties and witnesses
before 'it. In 'the event that a party moves to disqualify any mem~e~ of
the pangkat by reason of relationship, bias, interest. or any other similar
grounds discovered after the constitution of the pangkat, the matter
shall be resolved by the affirmative vote of t~e m~jority of t~e pangkat
Whose decision shall be final. Should disqualification be decided upon,
the resulting vacancy shall be filled as· herein provided for.
577
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
(e) Period to arrive at a settlement- The pangkat shall arrive
at a settlement or resolution of the dispute within fifteen (15) days from
the day it convenes in accordance with this section. This period shall,
at the discretion of the pangkat, be extendible for another period which
shall not exceed fifteen (15) days, except in clearly meritorious cases.
SECTION 411. Form of Settlement. - All amicable settlements
shall be in writing, in a language or dialect known to the parties,
signed by them, and attested to by the /upon chairman or the pangkat
chairman, as the case may be. When the parties to the dispute do not
use the same language or dialect, the settlement shall be written in the
language or dialect known to them:
SECTION 412. Conell/at/on. - (a) Pre-condition to filing of com-
plaint in court. - No complaint, petition, action, or proceeding involving
any matter within the authority of the /upon shall be filed or instituted
directly in court or any other government office for adjudication, unless
there has been a confrontation between the parties before the /upon
chairman or the pangkat, and that no conciliation or settlement has
been reached as certified by the /upon secretary or pangkat secretary
as attested to by the /uponor pangkatchairman or unless the settlement
has been repudiated by the parties thereto.
(b) Whereparties may go directly to court. - The parties may
go directly to court in the following·instances:
(1) Where the accused is under detention;
(2) Where a person · has otherwise been deprived of
personal liberty calling for ha'tfoascorpus proceedings;
(3) Where actions are coupled with provisional remedies
such as preliminary injunction,· attachment, delivery of personal
property, and support pendente lite; and
(4) Where the actjon may otherwise be barred by the
statute of limitations.
. (c) Conciliation among members of indigenous cultural com-
mun~t!es. - The customs and traditions of indigenous cultural com-
mumtres shall be applied in settling disputes between members of the
cultural communities. · -·
SECTI_ON 413. Arbitration; -·(a) Th~ parties may, at any stage of
the proceedrngs, agree in writing that they shall abide by the arbitration
578
APPENDIXD
KA TARUNGANG PAMBARANGAYLAW
award of the /upon chairman or the pangkat S h
rbit te may be rep d" t d . · uc agreement to
a r ra u ta ~ within five (5) days from the date thereof
tor the_ same ground.s a~d rn accordance with the procedure hereinafter
prescnbed. The arb1trat1on award shall be made after th I f th
· df di tl . e apse o e
peno or repu ta ion and within ten (10) days thereafter.
. (b) The arbitratio.n award shall be in writing in a language or
dialect known to the pa~1es. When the parties to the dispute do not use
the same language or dialect, the award shall be written in the language
or dialect known to them. ·
SECT~ON 414. Proceeding~ Open to the Public; Ejcceptlon. :-;--
All proceedings for settlement shall be public and informal: Provided,
however, That the /upon chairman or the pangkat chairman, as the
case may be, may motu proprio or upon request of a party,· exclude the
public from the proceedings in the interest of privacy, decency, or public
morals. · · .. ._ · · .
SECTION 415. Appearance of Parties In Person. - In all
katarungang pambarangay proceedings, the parties must appear in
person without the assistance of counsel or representative, except for
minors and incompetents who may be assisted by their next-of-kin who
are not lawyers.
SECTION 416. Effect of Amicable Settlement and Arbitration
Award. - The amicable settlement and arbitration award shall have
the force and effect of a final judgment of a court upon the expiration of
ten (10) days from the date thereof; unless repudiation of the settlement
has been made or a petition to r:iullify the award has been filed before
the proper city or municipal court.
However, this provision shall not apply to court cases settled by
the /upon under the last paragraph .of Section 408 of this Code, in which
case the compromise settlement agreed upon by the parties before the
/upon chairman or the pangkat chairman shall be submitted to the court
and upon approval thereof, have the force and effect of a judgment of
said court.
SECTION 417. Execution:·.~. The amicable settlement' or
arbitration award may be enforced by execution by the !upon within
six (6) months from the date of the settlement. After the lapse _of su~h
time, the settlement may be enforced by action.in the appropriate city
or municipal court. ·
579
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
SECTION 418. Repudiation. - Any party to the dispute may,
within ten (10) days from the date of the settlement, repudiate the
same by filing with the /upon chainnan a statement to that effect sworn
to before him, where the consent is vitiated by fraud, violence, or
intimidation. Such repudiation shall be sufficient basis for the issuance
of the certification for filing a complaint as hereinabove provided.
SECTION 419. Transmittal of Settlement and Arbitration
Award to the Court. - The secretary of the /upon shall transmit the
settlement or the arbitration award to the appropriate city or municipal
court within five (5) days from the date of the award or from the lapse of
the ten-day period repudiating the settlement and shall furnish copies
thereof to each of the parties to the settlement and the /upon chairman.
SECTION 420. Power to Administer Oaths. - The punong
barangay, as chainnan of the lupong tagapamayapa, and the members
of the pangkat are hereby authorized to administer oaths in connection
with any matter relating to all proceedings in the implementation of the
katarungang pambarangay.
SECTION 421. Administration; Rules and Regulations. - The
city or municipal mayor, as the case may be, shall see to the efficient
and effective implementation and administration of the katarungang
pambarangay. The Secretary of Justice shall promulgate the rules and
regulations necessary to implement this Chapter.
SECTION 422. Appropriations. - Such. amount as may
be necessary for the effective implementation of the katarurigang
pam?~ra~gay shall be provided for in the annual budget of the city or
municipality concerned. , ·
.• J.
. J
580
APPENDIX E
THE RULE ON THE WRIT
. OF HABEAS CORPUS
(Rule 102, Rules of Court)
1. What is the writ of habeascorpus?
. The writ of habeas corpus is a remedy that extends to all cases of
illegal confinement or detention by which any person is deprived of his
liberty, or by which the rightful custody of any person is withheld from
the person entitled thereto.
The writ of habeas corpus is also available as post-conviction
remedy where, as a consequence of a judicial proceeding: (a} there
has been a deprivation of a constitutional right resulting in the restraint
of a person; (b) the court had no jurisdiction to impose the sentence; or
(c) an excessive penalty has been imposed, as such sentence is void
~s to such excess. (Feria v. CA, 382 Phil. 412 [2000].)
The essential object or purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint and to relieve a person
. from it if such restraint is illegal. (Aquino v. Esperon, G.R. No. 174994,
Aug. 31, 2007.)
In Datukan Ma/ang Salibo v. Warden, Quezon City Jail Annex, et
al., G.R. No. 197597, April 8, 2015, the Supreme Court, through the
pen of Justice Leanen, explained the distinction between the writ of
habeas corpus and the final decision rendered in a petition for writ of
habeas corpus in this wise: The writ of habeas corpus is different from
•. the final decision on the petition for the issuance of the writ. It is the writ
that commands the production of the body of the person allegedly res-
trained of his or her liberty. On the other hand, it is in the final decision
where a court determines the legality of the restraint.
· Between the issuance of the writ and the final decision on the
petition for its issuance, it is the issuance of the wri~ th~~ is _ess~ntial.
The issuance of the writ sets in motion the speedy judiclal inquiry on
581
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
the legality of any deprivation of liberty. Courts shall liberally issue writs
of habeas corpus even if lhe petition for Its issuance "on [its) face (is)
devoid of merit." Although the privilege of the writ of habeas corpus may
be suspended in cases of invasion, rebellion, or when the public safety
requires it. the writ itself may not be suspended.
Explaining the nature of the writ of habeas corpus, in the same
case of Datukan Mafang Salibo, as extraordinary, yet summary, the
Supreme Court said: "Called the "great writ of liberty," the writ of habeas
corpus 'was devised and exists as a speedy and effectual remedy
lo relieve persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom.' The remedy of habeas corpus
is extraordinary and summary in nature, consistent with the law's
'zealous regard for personal liberty.'"
2. Who may the grant the writ?
The writ of habeas corpus may be granted by the Supreme Court,
or any member thereof, or by the Court of Appeals, or any member
thereof. or by the Regional Trial Court.
3. In what area or jurisdiction is the writ of habeas corpus
enforceable?
If issued by the Supreme Court, or any member thereof, or by the
Court of Appeals, or any member thereof, the writ shall be enforceable
anywhere in the Philippines. But if issued by the Regional Trial Court, it
shall be enforceable only within its judicial region.
4. Must the petition (or application) for the writ of habeas
corpus be verified? What should the application allege?
The application must be signed and verified either by the party for
whose relief it is intended or by some person on his behalf.
The application shall allege the following:
. . (a) that the person in whose behalf the application is made is
1mpnsoned or restrained of his liberty;
(b) the officer of name of the person by whom he is so imprisoned
or restrained; or, if both are unknown or uncertain, such officer or person
may be described by an assumed appellation, and the person who is
served with the writ shall be deemed the person intended;
582
THE . APPENDIX E
RULE ON THE WRIT OF HA.BEAS CORPUS
(c) the place where he Is so imprisoned or restrained, if known;
(d). ~ copy of the commitment or cause of detention of such
person,. if ,t. can. be ~roduced without impairing the efficiency of the
remedy, or, if the imprisonment or restraint is without any legal authority
such fact shall appear. '
5. What are the lns1ances when the writ shall not be
allowed?
The writ of habeas corpus shall not be allowed if it appears that
the person alleged to be restrained of his liberty is in the custody of
an officer under process issued by a court or judge or by virtue of a
judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the
order.
As held in Aquino v. Esperon, G.R. No. 174994.Aug. 31, 2007, the
writ of habeas corpus, as a general rule, will not issue where the person
alleged to be restrained of his liberty is in the custody of an officer under
a process issued by the court which has jurisdiction to do so.
6. If the writ is granted because it ought to issue, to whom
shall it be directed, and what shall it require?
In case of imprisonment or restraint by an officer. the writ shall be
directed to him, and shall command him to have the body of the person
restrained of his liberty before the court or judge designated in the writ
at the time and place therein specified.
In case of imprisonment or restraint by a person not an officer, the
writ shall be directed to an officer and shall command him to take and
· have the body of the person restrained of his liberty befo_re the ~urt
or judge designated in the writ at the time and place therein specified,
and to summon the person by whom he is restrained then an~ th~re to
appear before said court or judge to show the cause of the trnpnson-
ment or restraint.
1. By whom, upon whom, and how may the writ be served?
The writ may be served in any province by the _sheriff or other
proper officer, or by a person deputized by the court or Judge.
. it hall be made by leaving the original with the
Service of the wn s . on which to make a
person to whom it is directed and preserving a copy
583
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW
return of service. If that person cannot be found, or has not the prisoner
in his custody, then the service shall be made on any other person
having or exercising such custody.
8. After service of the writ, how may it be executed?
The officer to whom the writ is directed shall convey the person
so imprisoned or restrained, and named in the writ, before the judge
allowing the writ, or, in case of his absence of disability, before some
other judge of the same court, on the day specified in the writ, unless,
from sickness or infirmity of the person directed to be produced, such
person cannot, without danger, be brought before the court or judge.
9. If the person subject of the petition is lawfully impris-
oned, may he be admitted to bail?
Yes, if he is detained for an offense where bail is either a matter
of right or a matter of discretion.
10. What may the court or judge do if the person subject of
the petition is unlawfully imprisoned?
The court or judge shall forthwith order his discharge from
confinement, such discharge shall not be effective until a copy of the
order has been served on the officer or person detaining him. If the
officer or person detaining him does not desire to appeal, the prisoner
shall be forthwith released. · based on this ground are waived, the fact that th~ arre~t ~as illegal
11. Suppose the clerk of court refuses to issue the writ after
it has already been allowed, what is penalty for such refusal?
. He may be punished for contempt, aside from being made to
forfeit the sum of P1 ,000 in favor of the party aggrieved.
12. Wha~ about the person to whom the writ is directed, may
he also be punished for contempt, aside from being made to forfeit
the sum of P1,000 in favor of the party aggrieved?
Yes, in the following instances:
(a) if he neglects or refuses to obey or make return of the writ
according to the command thereof; · ing in the restraint of a person;
· (b) if he makes a false return· of the writ; or
584
THE RULE ONT APPENDIX E
HE WRIT OF HABEAS CORPUS
(c) upon demand made by or O .
refuses to deliver to the person demandi~ beh_al~ of. the prisoner, he
demand a true copy of th 9, within six hours after the
' e warrant or order of commitment.
~ 3. If a per~on has been illegally arrested, how may he
question the legality of his arrest?
a) If no case has yet been filed against him in court he may
question the legality of his arrest by filing a petition for habea; corpus.
b) _If a case has already been filed against him in court, he
may question the legality of his arrest by filing a motion to quash the
complaint or information on the ground that the court has not acquired
jurisdiction over his person. If the arrest is indeed illega_l, then the
court has not acquired jurisdiction over the person of the accused. The
accused must raise the question of the legality of his arrest in a motion
to quash before he pleads to the complaint or information; otherwise,
any question regarding the legality of his arrest is deemed waived.
In Bernarte v. Mahusay, 263 SCRA 323 (1996), it was held that
once a person has been duly charged in court, he may no longer
question his detention by a petition for habeas corpus, his remedy
being to move \o quash the information or the warrant of arrest.
The question of legality of an arrest affects only ~he jurisdiction of
the court over the person of the accused. Consequently, if obje~tions
is not sufficient cause for setting aside an otherwise vahd Judgment.
The technicality cannot render the subsequent proceedings void and
deprive the State of its right to convict the guilty when all t~e facts on
record point to the culpability of the accused. (People v. Mens, G.R. No.
117145, March ~8, 2000.)
14. In what instances may habeas corpus be rn~orted to as
post-conviction remedy? ·
ay be resorted to as post-conviction
The writ of habeas corplfS m . .
remedy in any of the following· exceptional c1rcumstan~s. .
deprivation of a constitutional nght result-
a) there has been a
. d
. . diction
1 to impose the sentence, an
b) the court had no Juris ·
585
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW

c) the imposed penalty is excessive, thus voiding the sentence

APPENDIX F
as to such excess.
Thus, the writ of habeas corpus was held available where an THE RULE ON THE WRIT OF AMPARO.
accused was deprived of his right against self-incrimination. (cited in
de Villa v. · The Director, New Bi/ibid Prisons, G.R. No. 158802, Nov. 17,
2004).. -=-

But habeas corpus is not available as post-conviction remedy ·

(A.M. No. 07-9-12-SC dated s t
· The Rule on Writ of
on October 24, 2007)
Amp:~~:: ~~!c~oo 7;

where the appeal is still pending. (People v. Maquilan, G.R. No. 126170,
Aug. 27, 1998). 1. What is the writ of all!paro?

15. What is the rule regarding Post-Conviction DNA Testing?
The rule on post-conviction DNA testing is expressed in A.M. No.
06-11-5-SC, Effective Oct. 15, 2007, as follows:
, "Sec. 6. Post-conviction DNA Testing. - Post-conviction
DNA testing may be available, without need of prior court order,
to the prosecution or any person convicted by final and executory
judgment provided that (a) a biological sample exists, (b) such
sample is relevant to the case, and (c) the testing would probably
result in the reversal or modification of the judgment of conviction."
(Rule on DNA Evidence, A.M. No. 06-11-5-SC, Effective Oct. 15,
2007)
"Sec. 10. Post-conviction DNA Testing - Remedy if the
Results Are Favorable to the Convict. - The convict or the
prosecution may file a petition for a writ of habeas corpus in the
court of origin if the results of the post-conviction DNA testing
are favorable to the convict. In case the court, after due hearing,
~nds the petition to be meritorious, if shall reverse or modify the
Judgment of conviction and order the release of the convict unless
continued detention is justified for a lawful cause. ' of all other authorized parties to file similar pet1t1ons. L1kew1~e, the fihng
· A similar petition may be filed either in the Court of Appeals
or the Supreme Court, or with any member of said courts, which
may conduct a hearing thereon or remand the petition to the court
of origin and issue the appropriate orders." · 3.
586
· · The'f writ· of amparo is a remedy availeble to any person whose
right to h e, liberty and security is violated or threatened with 1 . I t"
unlawful t · · · vio a 10n
b ~ an . . . ac or o~1ss1on of a public official or employee, or of a
private md~v1dual or ~nt1ty. The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
2. Who may file the petition for writ of amparo?
The petition for a writ of amparo may be filed by the aggrieved
party or by any qualified person or entity in the following order;
(a) Any member of the immediate family, namely: the spouse,
children and parents of the ~ggrieved party;
(b) Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of consanguinity or affinity,
in default of those mentioned in the preceding paragraph; or
. (c) Any concerned citizen, organization, association or institu-
tion, if there is no known member of the immediate family or relative of
the aggrieved party. ·
The filing of a petition by the aggrieved p_arty s~spe~ds the ri~ht
of the petltion, by an autllorize9 party. ~n behalf of the ag~neved party
suspends' the right of all others, observing the order established herein.
Where and when may the petition for a writ of amparo
be filed? d and at any time with· the
The petition may be filed on any th a~hreat act or omission was
Regional Trial Court of the place where e '
587
 -.,.,
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
committed or any of its elements occurred, or with the Sandiganbayan,
the Court of Appeals, the Supreme Court, or any justice of such courts.
4. In what area or jurisdiction Is the writ of amparo anfor,
ceable?
The writ of amparo, whether issued by the Regional Trial Court,
the Court of Appeals, the Sandiganbayan or the Supreme Court, or any
justice of such courts, is enforceable anywhere in the Philippines. ·
5. Must the petition be verified? What should the petition
allege?
The petition, which must be verified, must allege the following:
(a) the personal circumstances of the. petitioner;
(b) the name and personal circumstances of the respondent . ·
responsible for the threat, act or omission, or, if the name is unknown or
uncertain, the respondent may be described by an assumed appellation;
(c) the right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or omission of
the respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits; · punished by the court, justice or judge for contempt, without prejudice
(d) the investigation conducted, if any, specifying. the names,
personal circumstances, and addresses of the investigating authority
or individuals, as well as the manner and conduct of the investigation,
together with any report;
(e) the actions and recourses taken by the petitioner to deter-
mine the fate or whereabouts of the aggrieved party and the identity of
the person responsible for thethreat, act or omission; and · ·
(f) the rel_ief prayed f~r:
other just and equitable reliefs.
which may include a gen~ral prayer f~r
.
6. ~hat shall the court ~o upon the fiUng. of the ~erified
petition?
Upon the filing of the verified petition, the court, justice or judge
~hall immediately order the issuance of the writif on its face it ought to
issue. The clerk of court shall issue the writ under the .seal of the court;
or, i~_case of urgent necesslty, the justjce or.judge may issue the writ
588
THE APPENDIX F
RULE ON THE WRIT OF AMPARO
under his or her own hand, and .
serve It. may deputize any officer or person to
7. When shall the petltio b h
of the hearing? n e eard, and what is the nature
.. The ~rit shall set the date and time for summary hearing of the
pentlon which shall not be later than seven days f th d t f its
issuance. rom e a e o
~he . heari~g on the petition shall be summary. However, the
cou~. Justice or Judge ~ay call for a preliminary conference to simplify
the 1~s~es and deterrmne the possibility of obtaining stipulations and
admissions from the parties. .
The hearing shall be from day to day until completed and given
the. same priority as petitions for habeas corpus.
._ 8. · . Suppose the clerk of court refuses to issue the writ or
the person deputized to serve it refuses to serve the same, what is
penalty for such refusal?
The clerk of court who refuses to issue the writ after it has been
aliowed, or the deputized person who refuses to serve it, shall be
to other disciplinary actions that may be taken against him.
9. By whom, upon whom, and how may the writ be served?
i! · 'rhe writ of empsro shall ,be served. upon t_he _respo~dentby a
judicial officer or person deputized by the court, JU~t1ce or Judge who
shall-retain a copy on which to make a return of service.
. . Th.e writ shall be served personally on the respondent. But if
personal service cannot be made, the rule on substituted service shall
apply,
1 O. . After service of the writ, what shall the respondent do?
. Wit~in. 72 hours after service of the writ: the resp~n'dent. shall file
a verified written return, together with supporting affidavits, which shall,
among other things, contain the following:
d tenses to show that the respondent did not
violat~a~r t~~=a~::~ith :ioiation the right t? l(fe, liberty and security of
the aggrieved party, through any act or om1ss1on; .
589
 QUESTIONS AND ANSWERS IN
THE R APPENDIX F
REMEDIAL LAW
ULE ON THE WRIT OF AMPARO

(b) the steps or actions taken by the respondent to determine the (b) Motion for extension of ti ..
rate or whereabouts of the aggrieved party and the person or persons posi . n paper and other pleadings; me to file opposition, affidavit
responsible for the threat, act or omission;
(c) D'latory motion for postponement;
(c) all relevant information in the possession of the respondent
(d} of n for a bill of particulars;
pertaining to the threat, act or omission against the aggrieved party;
and (e) Coun erdairn or cross..cJaim;
(d) if the respondent Is a public official or employee. e ret:urn (f) n,· p.arty complaint;
shall further state the actions that have been or will still be t.ak n:
(
(i) to verify the identity of tho aggrieved party; (h)
(1)

c nier ri, tu naomus. prohibltion against any

1 ~,t:xoooroont, It not dilatory, may be allowed.

th . court do If the respondent falls to fllo a

(vi) to bring th
court. to, I a return. tho court. Justice or Judge
t1!i00 e, pett».
may the court, Justice or Judge
A general denial of th
allowed. of pet. ·, o o, at anytime before final judgment.
szce o, ·, ge ma'/ grant any of the following reliefs:
11. What Is the effect of r; pond nt' f tu
dofonsos? ial'/ Pmtaction OrcJa,. - This TPO may be issued by
0, i e upon motion or motu proprio. It may order
All defenses shall be rais d in th r tum. Def enses er:!:nr.sr, , a:.:,grie•,ed party and any member of the. Immediato
th rotum are deemed waiv d, cs ed ifl a 1emmeot agency or by an accredited person
tru? n aete of :eeping and securing their safety. It tho
12. What pleadings or motion are proh bi un r ._an t · •. n, association or institution, tho protection
Rulo govemlng writ of amparo?
me officers tl'IOI ed.
Tho follO\ ing pl adings and m t ns a ibit In ;; ,;tan Order. - The court, justice or Judge, upon v rifl
(a) Moti n to di miss: . • . r d e heating. may order any person In po s n Ot

590
 QUESTIONS ND ANS\\ ERS IN
REMEDIAL LAW
trot of a designated Iand or other property, to permit entry for the
purpose of inspectin.g. measuring, surve}~ng, or photographing the
property or any relevant object or operation thereon.
The motion shall state in detail the place or places to be inspected.
tt shall be supported by affidavits or testimonies of witnesses having
personal knowledge of the enforced disappearance or whereabouts
of the aggrie,,ed party.
If the motion is opposed on the ground of national security or of
the privileged nature of the information, the court, justice or judge may
conduct a hearing in chambers to determine the merit of the opposition.
The movant must show that the inspection order is necessary to
establish the right of the aggrieved party alleged to be threatened or
violated.
The inspection order shall specify the person or persons autho-
rized to make the inspection and the date, time, place and manner of
making the inspection and may prescribe other conditions to protect
the constitutional right of all parties. The order shall expire five (5) days
after the date of its issuance, unless extended for justifiable reason.
(c) Production Order. - The court, justice or judge, upon verified
motion and after due hearing, may order any person in possession,
custody or control of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, or objects
in digitized or electronic form, which constitute or contain evidence
relevant to the petition or the return, to produce and permit their
inspection, copying or photographing by or on behalf of the movant.
The ~o.tion may be opposed on the ground of national security
or of the pnvlleged nature of the information in which casethe court
justice or judge may conduct a hearing in chambers to.determine th~
merit of the opposition.
The court, justice or judge shall prescribe other conditions to
protect the constitutional rights of all the parties. · .'
(d) . Witness Protection Order. - The court, justice or Judge,
upon ~otion or m?tu proprio, may refer the witness to the Department
of Justice for admission to the Witness Protection, Security and Benefit
Program, pursuant to Republic Act No. 6981. The court, Justice or
Judge mat also refer the witnesses to other government agencies, or
to accredrted persons or private Institutions capable of keeping and
securing their safety. · petition is submitted for decision. If the allegatrons in the petition are
592
THE APPENDIX F
RULE ON THE WRJT OF AMPARO
15. What Interim reli f
. e s are available to the respondent?
. Inspection Order and Productio'n Order are available as interim
relief~ to t~e r~spondent. Upon verified motion of the respondent and
after ue earrng.' the court, justice or judge may issue an inspection
ord~r or p~oductron order. When filed by the respondent, a motion
for. rnspectlon . order shall be supported by affida
r vrits or test'rmonres
· of
wrtnesses havmg personal knowledge of the defenses of the respondent
16. What punishment may be imposed upon a respondent
who refuses to make a return or who makes a false return?
A respondent who refuses to make a return or who makes a
false r~turn. may be punished for contempt. Similarfy, any person who
otherwise d1~obeys or resists a lawful process or order of the court may
also be punished for contempt The contemnor may be imprisoned or
imposed a fine.
17. What is the amount of evidence required of the parties
to establish their claims (or defenses)?
· It is substantial evidence.
Substantial evidence is that amount of relevant evidence which
a reasonable mind might accept as. adequate to justify a conclusion.
(Sec. 5, Rule 133, Rules of Court.) .
18. What standard of diligence must th~ respondent prove?
If the respondent is a private individual or entity, he must prove
that ordinary diligence as required by applicable laws, rules and regula-
tions was observed in the performance of duty. ·
If the respondent is a public official or employee, he must prove
that extraordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty. The respondent
public official or employee cannot evade responsibility or duty by
invoking the presumption that official duty has been regularly performed.
..19. Wh~n shall the court ;ender Judgment?
The court shall render judgmen( within 10_days. fromthe .ti.me the
593
 QUESTIONS AND ANSWERS IN
REMEDIAL LAW

proven by substantial evidence, the court shall grant the privilege of the
writ and such reliefs as may be proper and appropriate; otherwise, the
court shall deny the privilege.

20. Who may appeal from the judgment? What is the mode APPENDIX G
of appeal,and when may the appeal filed? be . .
THE RULE ON THE WRIT OF HABEAS DATA
Any party may appeal from the final judgment or order to the
SupremeCourt under Rule 45 within five working days from the date of (A.M. No. 08-1-16-SC dated January 22, 2008;
notice of the adverse judgment. The appeal may raise questions of fact The Rule on Writ of Habeas Data took effect
or law or both. The appeal shall be given the same priority as in habeas on February 2, 2008)
corpus cases.

21. Suppose the court cannot proceed to hear th~ petition
what will the court do? '
. The ~u~ s~all not dismiss the petition, but shall archive it, if upon ·{
its determinationrt cannot proceed for a valid cause such as the failure
of petitioner or witnesses to appear because of threats on their lives.
. The petition, however, shall be .dismissed with prejudice upon
!~
failure prosecutethe case after the lapse of two years from notice to
the petitionerof the order archiving the case.
. . 22. May separatecriminal, civil or administrative actions be
tnstituted notwithstanding the filing of the petition for the writ'of
amparo?
Yes, be~use th.e fifing of a petition for the writ of empero does not
preclude the fifing of separate criminal, civil or administrative actions.
But when a cri · f 1· h · · ·
.. imina ac ion as been commenced no separate
peti~on for the ~rit _shall be filed. The reliefs under the writ shall be
1 3: May the petition be filed by a person other than the
available by matron m the criminal case.
.. And when a_ criminal action is filed subsequent to the fifing of a
petiti~n ~or the wnt, the petition for the writ shall be consolidated with
the cnmmafaction.
When a ?riminaf action and a separate civil action are filed subse·
q~entto a ~e~1t1on for a writ of empero, the petition shall be consolidated
with the cnmmafaction.
1. What is the writ of habeas data?
The writ of habeas data is a remedyavailableto any person whose
right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private
individual or entity engagedin the gathering, collectingor storing of data
or information regardingthe person,family, home and correspondence
of the aggrieved party.
The writ of habeas data is remedy, the purpose of which is to
enjoin the act alleged to be in violationof a person's right to privacy, or
to compel the deletion, destruction,or rectificationof erroneous data or
information.
2. Who may file the petition for writ of habeas data?
The petition for the writ of habeas data may be filed by any
aggrieved party.
. aggrieved party?
Yes, but only in cases of extralegal killings and enforced dis-
appearances, in which event the petition may be filed by: (a) any
member of the immediate family of the aggrieved party, namely: the
spouse, children and parents: or (b) any ascendant, descendant or
collateral relative of the aggrievedparty within the fourth civil degree of
consanguinity or affinity,In default of those mentionedin (a).

595
594
c:::======-~- Sill 111~11·-·
QUESTIONS AND ANSWERS IN
REMEDIAL LAW
4. Where may the petition for writ of habeas data be filed?
The petition may be filed with the Re~ional T~al. C~u~ where the
petitioner or respondent resides, or that which has jurisdlctlon over the
place where the data or information is gathered, collected or stored, at
the option of the petitioner.
The petition may also be filed with the Su~reme Court or th~ Court
of Appeals or the Sandiganbayan when the action concerns pubhc data
files of government offices.
5. In what area or jurisdiction is the writ of habeas data
enforceable?
The writ of habeas data, whether issued by the Regional Trial ·
Court, the Court of Appeals, the Sandiganbayan or the Supreme Court,
is enforceable anywhere in the Philippines.
6. Must the petition be verified? What should the petition
contain?
The petition, which-must be verified, should contain the following:
(a) the personal circumstances of the petitioner and the res-
pondent;
(b) the manner the right to privacy is violated or threatened and
how it affects the right to life, liberty or security of the aggrieved party;
. .I'
(c) The actions and recourses taken by the petitioner to secure
the data or information;
(d) The location of the files, registers or databases, the govern-
ment office, and the person in charge, in possession or in control of the
data or information, if known;
. ~e) The reli~fs prayed for, which may include the updating, rec- ·
tiflcation, suppression or destruction of the database or information or
files kept by the respondent. In case of threats the relief may include a
prayer for an order enjoining the act complain~d of, and, .
(f) such other relevant reliefs a? are just and equitable.
7. What shall the court do upon the filing ofthe verified
petition? , .: .
s _Upon t.he filing of the verified petition, the court, justice or judge
hall immediately order the issuance of the writ if on its face it ought to
596
APPENDIXG
THE RULE ON THE WRIT OF HABEAS DATA
issue. The clerk of court shall issue the writ under the seal of the court
and cause it to be served within three days from its issuance; or, in case
of urgent necessity, the justice or judge may issue the writ under his or
her own hand; and may deputize any officer or person to serve it.
. .: 8. When shall the petition be heard, and what is the nature
of .the hearing?
The writ shall set the date and time for summary hearing of the
petition which shall not be later than 1 O working days from the 'date
of its issuance.
· · <The hearing on the petition shall be summary. However, the
court, justice or judge may call for a preliminary conference to simplify
the issues and determine the possibility of obtaining stipulations and
admissions from the parties.
., J ••
'. '. A hearinq in chambers may be conducted where the. respondent
invokes the defense that the release of the data or information in
question shall compromise national security or state secrets, or when
the data or information cannot be divulged to the public due to its nature
or. privileged character. . .. .
9. Suppose the clerk of court refuses to issue the writ or
the person deputized to serve it refusesto serve the same, what is
penalty for such refusal?
,, The clerk of court.who refuses to issue the writ after it has been
allowed, or the deputized person refuses to serve it, shall be purished
by the court; justice or j~dge. for contempt, without prejudice to other
disciplinary actions that may betaken against him.
·, ., . 10.- B.y whom, upon whom, and how maythe writ be served?
·: . · The writ of habeas data shall be servedupon the respon?ent by
the officer or person deputized by the court, ju~tice or judge who shall
retain a copy on which to make a return of service .
. ·. 'The writ shall be served personally on ·the respondent. Butlt
personal service cannot be made, the rule on substituted service shall
c\lPP!Y· · .···
597
 QUESTIONS AND ANSWERS IN APPENDIXG
REMEDIAL LAW THE RULE ON THE WRIT OF HABEAS DATA

11. After service of the writ, what shall the respondent do~, 14. What pleadings or motions are prohibited under the
Rule governing writ of habeas data?
Within five work days from service of the writ, the respondent shall
file a verified written return together with supporting affidavits. The five. The following pleadings and motions are prohibited:
day period may be extended by the court for justifiable reasons. (a) Motion to dismiss;
This verified written return shall state, among other things, the (b) Motion for extension of time to file opposition, affidavit,
following: position paper and other pleadings;

(a) the lawful defenses such as national security, state secrets, (c) Dilatory motion for postponement;
privileged communication, confidentiality of the source of information of (d}' Motion for a bill of particulars;
media and others;
(e) Counterclaim or cross-claim;
(b) in case of respondent in charge, in possession or in control
(f) Third-party complaint;
of the data or information subject of the petition: (i) a disclosure of the
data or information about the petitioner, the nature of such data or •~ ! • (g) Reply;
information, and the purpose for its collection; (ii) the steps or actions (h) Motion to declare respondent in default;
taken by the respondent to ensure the security and confidentiality of the ,; I l ! -

data or information; and (iii) the currency and accuracy of the data or (i) Intervention;
information held; and U) Memorandum;
(c) other allegations relevant to the resolution of the proceeding. ., . (k) Motion for reconsideration of interlocutory orders or interim
relief orders; and
A general denial of the allegations in the petition shall not b'e
allowed. {I) Petition for certiorari, mandamus, prohibition against any
interlocutory order, . -1
12. What will the court do if the respondent fails to file a
return?
(m) Thus, a motion for postponement, if not dilatory, may be
allowed.
If the respondent fails to file a return, the court, justice or judge
shall proceed to hear the petition ex parte, granting the petitioner such
. . . . 15. . When shall the court renderjudgment?
relief as the petition may warrant unless the court in its discretion · The court shall render judgment within 10 days from the time the
requires the petitioner to submit evidence. petition is submitted for decision. If the allegations in the petition are
proven by
substantial evidence, the court shall_enjo~n the act complained
13. ~hat punishment may be Imposed upon a respondent of, or order the deletion, destruction, or rectification of the erroneous
who commits contempt by making a false return or refusing to data or information and grant other relevant reliefs as may be just and
makea return? ., equitable; otherwise, the privilege of the writ shall be denied. ·
• : ..... 1

_A respondent who commits contempt by making a false return or

, . 16. When shall the judgment becomefinal?
refusrng to make a return may be punished with imprisonment or fine.
The judgment shall become fin~I if no appeal is taken therefrom
Similarly, any person who otherwise disobeys or resists a lawful ~ithin five work days from the date of. notice of the judgment or final
process or order of the court may also be punished with imprisonment
or fine. .. order.

599
598

.ti
 QUESTIONS AND ANSWERS IN
APPENDIXG
REMEDIAL LAW
THE RULE ON THE WRIT OF HABEAS DATA

Who may appeal from the judgment? And what Is the 20. Suppose the criminal action has already been com-
17_ s:

mode of appeal? ·· , menced, may a separate petition for the writ of habeas data be still
Any party may appeal from judgment or ~nal ?rdedr to Rthel S4u5preme filed?
Court by means of petition for review on certiorari un er u e . The No. When a criminal action has been commenced, no separate
appeal may raise questions of fact or law or both. The appeal shall be petition for the writ shall be filed. The reliefs under the writ shall be
given the same priority as habeas corpus and amparo cases.. , , . available to an aggrieved party by motion in the criminal case.

18. What shall the court do upon finality of the judgment?

Upon its finality, the judgment shall be enforced ~y t~e she.riff or
any lawful officer as may be designated by the court, Justice or Judge
within five work days,
The officer who executed the final judgment shall, within three
days from its enforcement, make a verified return_ to the court. Th~
return shall contain a full statement of the proceedings underthe wnt
and a complete inventory of the database or informati~n, or d_ocuments
and articles inspected, updated, rectified, or deleted, with copies served
on the petitioner and the respondent.
The officer shall state in the return how the judgment was enforced
and complied with by the respondent, as well as all objections of the
parties regarding the manner and regularity of the service o~ the writ.
There shall be a hearing on the officer's return, the date of which
shall be set by the court with due notice to the parties.

19. May separate criminal, civil or administrative actions be

instituted notwithstanding the filing of the petition for the writ of
habeas data? ,

Yes, because the filing of a petition for the writ of habeas data
does not preclude ttie filing of separate criminai, civil or administrative
actions.
But when a criminal action is filed subsequent to the filing of a
petition for the writ, the petition for the writ shall be consolidated with
the criminal action.
And when a criminal action and a separate civil action are filed
subse~uent to a petition for a writ of habeas data, the petition shall be
consolidated with the criminal action. '

601
600