CIVPRO RAMENotes substantive rights.

They are still mandatory for the effective

Atty. Senga Recitation 3G-3H (2020-2021) performance of business and the discharge of justice by Courts.

What is Remedial law? In the case of Sarmiento v. Zaratan, the Court stated that in
Remedial law refers to the rules which provide the system for certain cases it may suspend the strict application of the
the protection of rights, the prevention and violation of such rules of Court and the Supreme Court gave five exceptions.
rights and the means of redress for such violations What are these exceptions?
1.) The existence of special or compelling circumstances,
How is remedial law different from Substantive law? 2.) The merits of the case,
Remedial Law Substantive Law 3.) A cause not entirely attributable to the fault or negligence of
Definition the party favored by the suspension of rules,
A method of enforcing rights, Creates, defines, and 4.) A lack of any showing that the review sought is merely
preventing the violation of regulates rights and duties frivolous or dilatory,
such rights and the means of concerning life, liberty and 5.) The other party will not be unjustly prejudiced thereby.
redress for such violations. property. Note: The Sarmiento v. Zaratan case is a 2007 case and we do
Establishment of Vested Rights not use the three-day notice rule anymore because it is no
No vested rights may attach Makes vested rights longer found in the Rules of Court as amended.
to nor arise therefrom possible.
Application In the case of Labao v. Flores the Court gave even more
exceptions, what are the thirteen exceptions to the strict
It is prospective in nature It is retroactive in application;
application of the Rules of Court?
applicable to actions pending
1.) Most persuasive and weighty reasons;
at the time of their passage
2.) To relieve litigant from an injustice not commensurate with
his failure to comply with the prescribed procedure;
Can we apply remedial law retroactively?
3.) Good faith of the defaulting party by immediately paying
YES. Procedural rules are construed to be applicable to actions
within a reasonable time from the time of the default;
pending and undetermined at the time of their passage and are
4.) The existence of special and compelling circumstance;
deemed retroactive in that sense and to that extent. As a general
5.) The merits of the case;
rule, the retroactive application of procedural rules cannot be
6.) A cause not entirely attributable to the fault or negligence of
considered a violation of any personal rights because no vested
the party favored by the suspension of the rules;
right may attach to nor arise therefrom. (In the Matter to Declare
7.) A lack of any showing that the review sought is merely
in Contempt of Court Hon. Simeon Datumanong)
frivolous and dilatory
8.) The other party will not be unjustly prejudiced thereby;
What is the rule making power of the Supreme Court as
9.) Fraud, accident, mistake, or excusable negligence without
provided by the Constitution?
appellant’s fault;
Article VIII Section 5(5) of the 1987 Constitution provides “The
10.) Peculiar legal and equitable circumstances attendant to
Supreme Court has the power to “x.x.x. Promulgate rules
each case;
concerning the protection and enforcement of constitutional
11.) In the name of substantial justice and fair play;
rights, pleading, practice and procedure in all courts, he
12.) Importance of the issues involved; and
admission to the practice of law, the integrated bar, and legal
13.) Exercise of sound discretion by the judge guided by all the
assistance to the underprivileged. Such rules shall provide a
attendant circumstances.
simplified and inexpensive procedure for the speedy disposition
of cases, shall be uniform foo all courts of the same grade, and
What do you mean by JURISDICTION?
shall not diminish, incase or modify substantive rights. Rules of
Jurisdiction is the authority of the court to hear, try and decide a
procedure of special courts and quasi-judicial bodies shall
case. It also includes the to implement the decision. Because
remain effective unless disapproved by the Supreme Court”’
once you acquire a decision of the Court, you want to implement
or execute the same decision. The same court has jurisdiction
Can Congress come up with a law that amends the Rules of
to implement it.
Court?
NO. The Supreme Court has the sole prerogative to amend,
ORIGINAL JURISDICTION
repeal, or even establish new rules for a more simplified and
The jurisdiction to take cognizance of a case at its inception.
inexpensive process, and the speedy disposition of the case.
The other branches, specifically the Congress, are said to
APPELLATE JURISDICTION
trespass the rule-making power of the Supreme Court if they
A court is one with appellate jurisdiction when it has the power
enact laws or issues orders that effectively repeal, alter or
to review over the decisions or orders of a lower court.
modify any of the procedural rules promulgated by the Court.
CONCURRENT-ORIGINAL JURISDICTION
NOTE: it is the exclusive jurisdiction of the Supreme Court/ the
Power of the different courts to take cognizance of the same
judiciary to come up with the Rules of Court.
subject matter. Where there is concurrent jurisdiction, the court
first taking cognizance of the case assumes jurisdiction to the
There are a lot of cases that provides for the suspension of
exclusion of the others.
the Rules of Court, does that mean that compliance with the
Rules of Court is only directory, not mandatory?
Examples of courts having concurrent jurisdiction over a
NO. It is mandatory. Jurisprudence provides that the invocation
case.
of substantial justice cannot be used as a magic want to compel
• The Supreme Court has concurrent original jurisdiction with
the court to suspend procedural laws. Procedural rules are not
the RTC in cases affecting ambassadors, other public
to be belittled or dismissed simply because their non-
observance may have resulted in prejudice to a party such. ministers, and consuls.
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• The Supreme Court has concurrent original jurisdiction with Expanded Jurisdiction of Supreme Court
the CA in petitions for certiorari, and mandamus against the The expanded jurisdiction of the Supreme Court can be found
RTC under Article VIII, Section 1 which provides:
• The Supreme Court has concurrent original jurisdiction with
the CA and RTC in petitions for certiorari, prohibition and “Section 1. The judicial power shall be vested in one Supreme
mandamus against lower courts and bodies and in petitions Court and in such lower courts a may be established by law.
for quo warranto and habeas corpus. Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally
EXCLUSIVE ORIGINAL JURISDICTION demandable and enforceable, and to determine whether or not
Original jurisdiction means jurisdiction to take cognizance of the there has been grave abuse of discretion amounting to lack or
case at its inception, try and pass judgement upon the laws and excess jurisdiction on the part of any branch or instrumentality
facts. Exclusive Jurisdiction precludes the idea of co-existence of the Government”
and refers fo jurisdiction possessed to the exclusion of others.
As enunciated in the case of Araullo v. Aquino III the Court held
A court may be conferred with both original and exclusive that: with respect to the Court, however, the remedies of
jurisdiction over a particular subject matter. For example; MTC certiorari and prohibition are necessarily broader in scope and
has original-exclusive jurisdiction over forcible entry and reach, and writ of certiorari or prohibition may be issued to
unlawful detainer. correct errors of jurisdiction committed not only by a tribunal,
corporation, board or officer exercising judicial, quasi-judicial or
What do you mean by the principle of HIERARCHY OF ministerial functions.
COURTS?
When there are several courts who exercise concurrent-original NOTE: Look at Rule 65 Section 1, it talks about Certiorari and if
jurisdiction, you do not directly go the highest court, you start at you look at the first phrase it says “it is to review acts of any
the lowest court. So even if the Supreme Court has original tribunal, body, board that is exercising judicial and quasi-judicial
jurisdiction over certiorari, prohibition and mandamus you do not functions”. We will use Certiorari under a special civil action of
directly go to the SC but you file it first with the lower court. Rule 65 when there is grave abuse of discretion on the part of
one exercising judicial or quasi-judicial function.
What is the reason behind this rule as discussed in the case
of Gio-Samar? However, under the expanded definition of the Constitution it
So that you do not unduly burden the dockets of the Supreme does not distinguish. It settles actual controversies involving
Court, you file it first to the lower court that would also have the rights which are legally demandable and enforceable, and to
competence to hear and decide the case. determine whether or not there is grave abuse of discretion
amounting lack or excess jurisdiction on the part of any
In the same case, the Court ruled that the hierarchy of instrumentality of the government. This means that even if the
Courts is not absolute and is subject to exceptions. What instrumentality is NOT exercising judicial or quasi-judicial power
are these exceptions? it is subject to the review of the courts provided that the act is
• When there are genuine issues of constitutionality that must done with grave abuse of discretion amounting to lack or excess
be addressed at the most immediate time; jurisdiction (GADALEJ). It is expanded because it is not limited
• When the issues involved are of transcendental to those exercising judicial or quasi judicial.
importance;
• Cases of first impression; ROC, Rule 65 1987 Constitution
• The constitutional issue raised are better decided by the Certiorari Article VIII, Section 1
Court; It is to review acts of any To settle actual
• Exigency in certain situations; tribunal, body, or board that controversies involving rights
• The filed petition reviews the act of constitutional organ; is exercising judicial and which are legally
• When petitioners rightly claim that they had no other plain, quasi-judicial functions. demandable and
enforceable, and to
speedy and adequate remedy in the ordinary courts of law
that could free them from the injurious effects of determine whether or not
there has been grave abuse
respondent’s acts in violation of their right to freedom and
of discretion amounting to
expression
lack or excess jurisdiction on
• The petition includes questions that are "dictated by public
the part of any branch or
welfare and the advancement of public policy, or demanded
instrumentality of the
by the broader interest of justice, or the orders complained
Government
of were found to be patent nullities, or the appeal was
Limited to acts of those It does not distinguish, Even
considered as clearly an inappropriate remedy
exercising judicial or quasi- if the instrumentality is NOT
judicial function exercising judicial or quasi-
What is the Angara Model discussed in the same case?
judicial power it is subject to
Direct invocation of the Court’s original jurisdiction over the
review of the courts provided
issuance extraordinary writs is allowed when there is NO
that there is GADALEJ
DISPUTE as to the facts.
In this case the petition was allowed because what was
considered was the nature of the issue involved in the case: a IMPORTANT NOTE: If we will recall in Criminal Procedure,
legal controversy between two agencies of the government that going back to prosecutors. You will remember that the function
called for the exercise of the power of judicial review by the final of a prosecutor in the conduct of a preliminary investigation it is
arbiter of the Constitution, the Supreme Court . not judicial or quasi judicial rather it is administrative or executive
because in the conduct of a PI it is merely inquisitorial to
determine whether there is probable cause. It is investigative
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and therefore administrative in nature. Therefore it is NOT quasi-
judicial. Nevertheless, if you will remember from the prosecutor,
the remedy is you file a Motion for Reconsideration or a petition
for review with the Secretary of Justice. Once you file with the
SOJ and the latter makes a resolution your remedy is either an
MR and afterward from the denial of the motion of MR, your
remedy is a petition for certiorari to the Court of Appeals. Note
that the SOJ’s function is also not quasi-judicial.
Thus, if we apply Rule 65, Sec. 1 you cannot review the decision
of the SOJ because the latter is not performing judicial or quasi-
judicial functions.
BUT, if we use the expanded jurisdiction under the Constitution
then the Courts can review the decision of the SOJ because
under expanded definition courts can act that are GADALEJ on
the part of ANY instrumentality of the government. As long as it
is GADALEJ of any body or instrumentality, it is susceptible to
review.
What is the principle of EXHAUSTION OF ADMINISTRATIVE
REMEDIES?
The doctrine of exhaustion of administrative remedies instructs
that before a party is allowed to seek the intervention of the
courts, it is a pre-condition that he avail himself of all
administrative processes afforded him. It entails lesser
expenses and provides for the speedier resolution of
controversies. Also, courts must allow administrative agencies
to carry out their functions and discharge their responsibilities
within the specialized areas of their respective competence
What is the reason behind this principle?
Courts must allow administrative agencies to carry out their
functions and discharge their responsibilities within the
specialized areas of their respective competence. It entails
lessee expenses and provides for the speedier resolution of
controversies.
In the case of spouses Gonzales, the S.C gave an exception
to the rule of exhaustion of administrative remedies where
we can go directly to the Court. In what instance is that?
When the issues involved is purely a legal question. So, if it is
purely a question of law and it does not involve the review of
facts or evidence then the Court has competence to rule on the
case and the administrative body would not have the
competence to do so.
DOCTRINE OF ADHERENCE TO JURISDICTION?
Once a court has acquired jurisdiction, it retains its jurisdiction
until it finally disposes the case. Once jurisdiction is acquired,
that jurisdiction continues until the court has done all that it can
do in the exercise of such jurisdiction.
DOCTRINE OR NON-INTERFERENCE or DOCTRINE OF
JUDICIAL STABILITY?
The doctrine of judicial stability or non-interference in the regular
orders or judgments of a co-equal court is an elementary
principle in the administration of justice: no court can interfere
by injunction with the judgments or orders of another court of
concurrent jurisdiction having the power to grant the relief
sought by the injunction.
(Tan v. Cinco, G.R. No. 213054, June 15, 2016)
Can a decision rendered by the RTC court in Makati be
reviewed by another RTC court in Manila?
NO. It is a violation of the doctrine of judicial stability. The
judgment rendered by the Makati RTC , as well as the execution
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thereof, and all other incidents arising therefrom, may not be
interfered with by the Manila RTC, a court of concurrent
jurisdiction, for the simple reason that the power to open, modify,
or vacate the said judgment or order is not only possessed but
is restricted to the court in which the judgment or order is
rendered or issued.
What about in the exercise of discretion by prosecutors and
the Ombudsman, can courts interfere with the
determination of Probable Cause?
Unless there is compelling reason such as if there is grave
abuse of discretion amounting to lack or excess jurisdiction
Courts may interfere with the determination.
What are the four aspects of Jurisdiction in Civil Cases?
• Jurisdiction over the Subject Matter
• Jurisdiction over the Parties
• Jurisdiction over the Issues of the case
• Jurisdiction over the Res or thing involved
Jurisdiction over the subject matter of the case what do we
look at?
The law because it is substantive
When a case arises from a violation of a right to know what
court has jurisdiction, what is our reckoning point? The
time the cause of action arises or at the time the case is filed
in court?
At the time that the case is Filed in court
If it is exactly P400,000 in Metro Manila?
MTC
For probate or settlement of estate proceedings, how
much?
OUTSIDE Metro Manila – not more than P300,000
WITHIN Metro Manila – not more than P400,000
What if it is a REAL ACTION?
OUTSIDE Metro Manila – not more than P20,000
WITHIN Metro Manila – not more than P50,000
What do we look at?
Assessed Value. Assessed value is NOT the same as the fair
market value
Where can we find the assessed value?
In the tax declaration
Do you need to allege the assessed value in the complaint
the if it is a real action?
If you do not have tax declaration, you have to allege.
What if you did not allege it but you attached the tax
declaration which provides for the assessed value. Is that
sufficient for the Court?
YES
What if it’s a real action and you did not allege the assessed
value and you also did not attach the tax declaration can
the court assume jurisdiction over your real action?
NO, because we do not know which court as jurisdiction over
the case.
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 MTC JURISDICTION
EXCLUSIVE ORIGINAL JURISDICTION OF MTC
• Civil actions where the value of the personal property,
estate, or amount of the demand does not exceed P300,000
outside Metro Manila, or not more than P400,000 within
Metro Manila
• Cases of forcible entry and unlawful detainer
• Probate Proceedings, testate and intestate, where the
gross value of the estate does not exceed P300,000 outside
Metro Manila or does not exceed P400,000 within Metro
Manila
• Grant of provisional remedies in proper cases. This rule
presupposes that the MTC has jurisdiction over the principal
action.
(B.P. 129, Section 33)
DELEGATED JURISDICTION OF MTC
• The MTC also exercises delegated jurisdiction in cadastral
and land registration cases covering lots where there NO
controversy or opposition or contested lots the value of
which does not exceed P100,000, as may be delegated by
the Supreme Court (B.P. 129, Section 34)
SPECIAL JURISDICTION
• In the absence of all the RTC judges in a province, or city,
any MTC, MCTC, MeTC Judge may hear and decide
petitions for a writ of habeas corpus or applications for bail
in criminal cases in the province or city where the absent
RTC judge sit. (B.P. 129, Section 35)
NOTE: When there are no judges in the RTC the writ of habeas
corpus and the application of bail (the records) will be
TRANSFERRED from the RTC to the MTC. The reason being
that in the court of calendar habeas corpus has priority in the
hearing. You want to have a continuous hearing of habeas
corpus because of the importance of the case. It is only a special
jurisdiction meaning the law provides that it is only to hear
habeas corpus. File it first to the RTC then it the RTC will transfer
it to the MTC.
KATARUNGANG PAMBARANGAY
What is the LUPON TAGAPAMAYAPA?
It is the body organized in every barangay that settles disputes
among barangay members through mediation, conciliation and
arbitration.
How many members are there?
The lupon is composed of the punong barangay as Chairman
and not less than ten (10) or nor more than twenty (20) members
from which the members of every pangkat shall be chosen.
Can they be from a different barangay?
NO. They should reside in the same barangay.
How are they chosen?
The barangay captain shall prepare a notice to constitute the
Lupon, which shall include the names of proposed members
who are residing or working in the barangay, not otherwise
disqualified by law and who have expressed their willingness to
serve.
In this case, anyone from the barangay can write their comments
on the prospective members, regardless of this, the choice is still
left to the barangay captain to appoint who will be part of the
Lupon.
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Jurisprudence provides that the law mentions only those
that do not fall under Katarungang Pambarangay. It does
not enumerate those included, it only provides for those
that are excluded. What are these cases excluded from the
barangay proceedings?
All disputes may be the subject of proceedings for amicable
settlement except for the following:
(a) Where one party is the government, or any subdivision
of instrumentality thereof;
(b) Where one party is a public officer or employee, and
the dispute related to the performance of his official
functions;
(c) Offenses for which the law prescribes a maximum
penalty of imprisonment exceeding one (1) year or a
fine not exceeding Five Thousand pesos (P5,000);
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located in
different citied 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 Lupon; and
(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
What if the imprisonment is only for two months but the
person is already detained, will it still fall under barangay
conciliation proceedings?
NO. Because if they are already detained then there is no need
to resort to barangay. You can go directly go to the courts.
They must first go to barangay conciliation proceedings
before going directly to court?
Yes
If it falls directly under barangay conciliation proceedings
but it does not fall under the exception, but they went
straight to court, does that mean that the Court cannot act
on the case for lack of jurisdiction?
NO. Barangay conciliation proceedings is not a jurisdictional
requirement. The non-referral of a case for barangay conciliation
when so required under the law is not jurisdictional in nature and
may therefore be deemed waived if not raised seasonably in a
motion to dismiss or in a responsive pleading. (Lansangan v.
Caisip, G.R. No. 212987, August 6, 2018)
NOTE: This is because jurisdiction is provided by law. For
example, you have an ejectment case and you did not resort to
barangay conciliation proceedings, still the law provides that the
MTC has exclusive-original jurisdiction over ejectment cases.
Nevertheless, the failure to resort to barangay conciliation
proceedings as held in Lansangan v. Caisip case is a ground to
dismiss the case because of the failure to comply with the
condition precedent. (Lansangan v. Caisip, G.R. No. 212987,
August 6, 2018)
Is there another requirement similar to barangay
proceedings for a condition precedent under the family
code?
Under the Family Code, Article 151 provides that family
members should exert earnest efforts towards a compromise or
amicable settlement before filing a suit.
4
Let us say you are living in the same barangay with Mico
Suarez, Mico borrowed from you P1,000. Mico refuses to
pay, so you went to the Barangay. Can you file an oral
complaint to the Barangay?
YES. It can be oral and written.
It can be an oral complaint, so first the one who will preside
over it is the Lupon Chairman. What will the Lupon
Chairman do? Can he rule on the case like a judge?
SUMMONS: The Lupon Chairman shall receive all written
complaints and put in writing all verbal complaints made by
individuals personally before him against other individuals. He
shall not receive complaints made by or against corporations,
partnerships or other juridical entities. Immediately upon such
receipt he shall notify the complainant of the date of initial
hearing and shall, within the next working day, issue summons
to the respondent/s to appear before him not later than five(5)
days from date thereof for a mediation of their conflicting
interests;
When they attend, he will act as what?
A mediator. He will just facilitate the discussion.
After the lapse of ten (10) days and no amicable settlement
has been reached. What will happen next?
If the parties fail to reach an amicable settlement after the lapse
of 10 days, the Lupon shall constitute the Pangkat
Tagapagsundo
Where will you get the members of the Pangkat?
The parties shall choose three (3) members from the Lupon
Tagapamayapa. We only constitute the pangkat only where
there is a dispute and the parties will agree upon themselves
who will be the members of the pangkat.
Does the pangkat Act as a court and issue a decision?
NO. It is for Meditation.
So the pangkat will act as a mediator, is there an instance
where the pangkat can act as a tribunal?
Yes. Under the Local Government Code it provides that at any
time the parties may agree to submit the case to arbitration.
There are two things that can happen before the barangay:
(1) AMICABLE SETTLEMENT: The parties will just be
facilitated by the pangkat or the Lupon Chairman to come
into an amicable settlement which is voluntary.
(2) ARBITRATION: You can also have arbitration in the level
of the barangay. Under the LGC, at any time the parties can
submit the case for arbitration. But the agreement must be
in writing. When the parties in writing agree to submit the
case to arbitration in that instance, the Lupon Chairman or
the Pangkat Tagapagsundo will act now as an arbitral
tribunal. In this instance, when they agree in writing to
submit the matter in arbitration, they also agree to abide
with the arbitral award. There will be a decision rendered by
the Lupon Chairman or the Pangkat Tagapagsundo acting
as an arbitral tribunal.
So let us say that the parties are in the middle of the discussion
for amicable settlement before the pangkat. They can if they
decide, agree to submit it to arbitration because the LGC
provides “at anytime agree in writing to submit it to arbitration”.
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Let us say that Rania owes you P1,000. There was an
amicable settlement for Rania to pay only P500. So there is
an amicable settlement in writing submitted to the pangkat
that Rania will pay you P500. Can you execute that
settlement before the barangay?
The amicable settlement or arbitration award may be enforced
by execution by the Lupon within six (6) months from date of the
settlement or date of receipt of the award or from the date the
obligation stipulated in the settlement or adjudged in the
arbitration award becomes due and demandable.
What if at the time that you were entering into an amicable
settlement, there is a knife pointed at you forcing you to
agree to a settlement. Out of fear you signed the settlement.
Can you still repudiate the settlement?
Any party to the dispute may, within ten (10) days from the date
of the settlement, repudiate the same by filing with the Punong
Barangay 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 in court or any government
office for adjudication. Failure to repudiate the settlement within
the aforesaid time limit shall be deemed a waiver of the right to
challenge on said grounds.
What are the grounds to repudiate?
• Fraud
• Violence
• Intimidation
Within what period?
Within 10 days
What if Rania says “kahit patayin mo ako di kita babayaran
ng P500”, what is your remedy?
You can file it to the courts.
What will you file in the Court?
An action for collection of sum of money.
For what amount?
P1,000
What is your basis? Why is it P1,000 when they already have
an agreement that Rania will only pay P500?
Article 2041 provides that if one parties fails or refuses, to abide
by compromise, the other party may either enforce the
compromise or regard it as rescinded, and insist upon his
original demand.
In this case, the agreement will be treated as rescinded because
there is refusal to comply. In this instance, you can treat the
settlement as rescinded and insist on the payment of the original
demand of P1,000 and you can file an original action of sum of
money.
However, if he DOES NOT want to treat it as rescinded and
wants to enforce it but seven (7) months have already
lapsed. Does that mean he can no longer enforce such
amicable settlement?
He can enforce it in the MTC for enforcement of amicable
settlement under Small claims. The coverage of small claims
includes the enforcement of barangay conciliation settlements.
5
CONCLUSION:
WITHIN SIX (6) MONTHS LAPSE OF SIX (6) MONTHS
• Enforce before the Enforce before the MTC for
barangay enforcement of Barangay
• Repudiate it within 10 conciliation under small
days on the ground of claims
violence, fraud, and
intimidation
Is summary procedure the same as summary proceeding?
Summary Procedure Summary Proceeding
Immediate process issuing Court action in which the
and taking effect without formal procedures normally
intermediate applications or applicable to matters are
delay. dispensed with
As to CASES COVERED
Cases falling under the MTC Cases falling under the
Family Code
Example: declaration of
presumptive death for
purposes of remarriage
What are the cases falling under Summary Procedure?
For Civil Cases
• All cases of forcible entry and unlawful detainer, irrespective
of the amount of damages or unpaid rentals sought to be
recovered. Where attorney's fees are awarded, the same
shall not exceed twenty thousand pesos (P20,000.00).
• All other civil cases, except probate proceedings, where the
total amount of the plaintiff's claim does not exceed one
hundred thousand (P100,000) if outside Metro Manila and
two hundred thousand (P200,000) if within Metro Manila,
exclusive of interest and costs.
For Criminal Cases:
• Violations of traffic laws, rules and regulations;
• Violations of the rental law;
• Violations of municipal or city ordinances;
• All other criminal cases where the penalty prescribed by law
for the offense charged is imprisonment not exceeding six
months, or a fine not exceeding (P1,000.00), or both,
irrespective of other imposable penalties, accessory or
otherwise, or of the civil liability arising therefrom: Provided,
however, that in offenses involving damage to property
through criminal negligence, this Rule shall govern where
the imposable fine does not exceed ten thousand pesos
(P10,000.00).
• Batas Pambansa Bilang 22 (B.P. 22)
So, for summary procedure the threshold amount is it does
not exceed P200,000 if within Metro Manila and does not
exceed P100,000 outside Metro Manila. What about SMALL
CLAIMS what is the threshold of the amount?
• WITHIN Metro Manila: Does not exceed P400,000
• OUTSIDE Metro Manila: Does not exceed P300,000
You are in the City of Manila and the amount of your claim
is P190,000. Which court has jurisdiction over your
collection of sum of money?
The Court that has jurisdiction is MTC because it is less than
P400,000
What proceedings will you use, summary procedure or
small claims?
It depends.
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Should it be small claims because it is the later rule, isn’t it
considered to have amended the summary procedure?
NO. Summary Procedure could not have been considered to
have amended the rules on small claims.
What will you file under summary procedure to commence
an action?
Under summary procedure the only pleadings that are allowed
• Complaints,
• Compulsory Counterclaims,
• Cross-claims pleaded in the answer and,
• Answers thereto
ALL Pleadings must be VERIFIED
Should all pleadings in Summary Procedure be verified?
YES
Are permissive counterclaims allowed in Summary
Procedure?
NO
How about in SMALL CLAIMS is permissive counter-claims
allowed?
Yes
What are the other pleadings allowed in Summary
Procedure?
Position papers and Affidavits.
What are the Prohibited Pleadings in Summary Procedure?
• Motion to dismiss the complaint or to quash the complaint
or information except on the ground of lack of jurisdiction
over the subject matter, or failure to comply with the
preceding section;
• Motion for a bill of particulars;
• Motion for new trial, or for reconsideration of a judgement,
or for reopening of trial;
• Petition for relief from judgement;
• Motion for extension of time to file pleadings affidavits or
any other paper;
• Memoranda;
• Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
• Motion to declare the defendant in default;
• Dilatory motions for postponement;
• Reply;
• Third party complaints;
• Interventions
Do you agree that all motions to dismiss is prohibited in
summary procedure or is there an exception?
NO. The exceptions are: (a) Motions to dismiss on the ground of
lack of jurisdiction and (b) failure to comply with the condition
precedent of referral to barangay conciliation proceedings
DUTY OF THE COURTS AFTER COMPLAINT IS FILED
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 grounds apparent therefrom for the dismissal of
a civil action. If no ground for dismissal is found it shall forthwith
issue summons which shall state that the summary procedure
under the Rules of Summary Procedure shall apply.
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The court will look if there are grounds to dismiss. If there
are grounds to dismiss can the court dismiss it outright?
YES, the court can dismiss outright because motions to dismiss
are a prohibited pleading so the parties cannot raise those
grounds. That is why the court has the duty upon the filing of the
complaint to look at the allegations in the complaint and if there
are grounds to dismiss, the Court may dismiss outright.
For instance, if the claim has already prescribed. That is visible
in the complaint so the court can dismiss outright.
After the court identifies that there are no grounds to
dismiss, what will happen next?
The court shall issue two things:
(1) Issue summons
(2) An order declaring that the complaint falls under
summary procedure.
What order should the court issue?
The court will issue an order declaring whether the case falls
under summary procedure or not.
Will it attach the complaints and summons?
YES, it will attach the complaint and summons and then it will be
served to the defendant.
How many days does the defendant have to file an answer?
10 days. 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 for 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 filed and served within ten days from service of answer
in which they are pleaded.
After 10 days the defendant did not file an answer, can the
plaintiff file a motion to declare the defendant in default?
NO. A motion to declare the defendant in default is a prohibited
pleading.
So, if the defendant does not file an answer what will the
court do?
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 15 of the Rules
of Court, if there are two or more defendant.
Can the court do so upon the motion of the plaintiff?
YES. The court may decide motu proprio or upon motion of the
plaintiff.
Let us say the plaintiff prayed for P80,000 damages. If the
defendant does not file an answer, and the court will render
judgement, can the court award a lesser amount of
P50,000?
YES
Can the court award a bigger amount of P150,000?
NO. Because the rules provide that the court will render
judgement based on the allegations in the complaint. Meaning if
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the prayer is P80,000 the court cannot go beyond that but the
court can go below that but never beyond.
The defendant files an answer what happens next?
A preliminary conference shall be held. Both parties must file
their preliminary conference brief.
What if the plaintiff does not attend the preliminary
conference?
The failure of plaintiff to appear in the preliminary conference
shall be the cause for the DISMISSAL of his complaint. The
defendant who appears in the absence of the plaintiff shall be
entitled to judgement on his counterclaim in accordance with
Section 6 (Failure to file an answer).
If defendant files an answer with a compulsory
counterclaim the but the plaintiff does not attend the
preliminary conference, the court will dismiss the
complaint. Does that mean that all the counter-claims will
be dismissed?
NO. The court will render judgement on the basis of the
counterclaim. Just like when the court renders judgement based
on the complaint. Because the counterclaim of a defendant is in
the nature of a complaint.
So, if the plaintiff does not appear. The court will dismiss the
complaint but the court can render judgement based on the
allegations counter claim.
After the preliminary conference, the court already orders
a preliminary conference order. What happens next?
Within ten (10) days from receipt of the 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.
The affidavits must be based on the direct personal knowledge
of the affiants.
If it is not based on the direct personal knowledge of the
affiant, what is the effect?
It will not be admitted and will not be considered by the court. In
this instance the affidavits are INADMISSIBLE.
EXCLUSION OF EVIDENCE
Testimonial evidence to be admissible must be based on the
direct personal knowledge of the affiant.
Does the same rules apply to SMALL CLAIMS?
YES, if you submit an affidavit that is not based on direct
personal knowledge, it will not be admitted.
Should the affidavits be in the form of a judicial affidavit
pursuant to the JA rule? Or is it not necessary because the
summary procedure only mentions affidavit without
qualifying it?
YES. Although the Summary Procedure was issued before the
JA rule. The JA rule provides that it should apply to all cases
under the MTC. Since summary procedure falls under the MTC,
the Judicial Affidavit Rule must be followed.
The court will render judgement within 30 days, is there a
longer period that may be allowed for the Court to render
judgement beyond the 30-period?
Should the court find it necessary to clarify certain material facts,
it may, during the said period, issue an order specifying the
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matters to be clarified, and require the parties to submit affidavits
or other evidence on the said matters within ten (10) days from
receipt of said order. Judgment shall be rendered within fifteen
(15) days after the receipt of the last classificatory affidavits, or
the expiration of the period for filing the same.
Once the Court renders judgement, let us say it is an
ejectment case, is it immediately final and executory?
YES. Civil cases under the summary procedure, including
forcible entry and unlawful detainer shall immediately
executory.
Is it final?
NO. It is immediately executory without prejudice to a further
appeal that may be taken.
If you appeal, do we apply the rule on summary procedure
in the proceedings of the appeal level?
The judgment or final order shall be appealable to the
appropriate regional trial court which shall decide the same in
accordance with Section 22 of Batas Pambansa Blg. 129
Can you instead of appealing file a motion for
reconsideration first to assail the decision?
NO. A motion for reconsideration is a prohibited pleading under
summary procedure.
What if you file an MR, will the motion for reconsideration
toll the period within which to appeal?
NO. If the court does not act on the MR, it will not toll the period
to file an appeal and the effect of that is that your decision
becomes final and executory if the 15 day period lapses. This is
because you filed for the wrong remedy. So the remedy here is
to file an appeal.
SMALL CLAIMS
What are the cases covered by Small Claims?
• For money owed under any of the following
o Contract of Lease;
o Contract of Loan;
o Contract of Services;
o Contract of Sale
o Contract of Mortgage
Wherein the amount DOES NOT EXCEED P400,000 in
Metropolitan Trial Courts and DOES NOT EXCEED P300,000 in
Municipal Court, Municipal Circuit Trial Court and Municipal
Courts in Cities
• For liquidated damages arising from contracts
• The enforcement of a barangay amicable settlement or an
arbitration award involving a money claim covered by the
Rule pursuant to the Local Government Code
Can unliquidated damages fall under small claims?
NO. It has to be liquidated damages. The reason is that if it is a
liquidated damage it is agreed or stipulated in the contract.
There is no need to prove. While if it is for unliquidated damages
there is a need for trial to prove that amount.
Should there be lawyers in summary procedure?
YES
Can there be lawyers on small claims
NO. The rules on small claims provides that “No attorney shall
appear in behalf of or represent a party at the hearing”
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EXCEPTION:
Unless the attorney is the plaintiff or defendant of the small
claims. If the party-litigant is a lawyer
What do you file in small claims to institute the actions?
A small claims action is commenced by filing with the court:
• An accomplished and verified Statement of Claim
(Form 1-SCC) in duplicate
• Accompanied by a Certification against Forum
Shopping
• Splitting a Single Cause of Action
• Multiplicity of Suits (Form 1-A-SCC) and,
• Two duly certified photocopies of the actionable
documents/subject of the claim
Should there be anything attached to it?
• Affidavits of witnesses
• Other evidence to support the claim.
What is the effect if you do not attach the affidavits in a
statement of claims?
It will be DISMISSED.
There is a statement of claims, then summons will be
served to the defendant. Then defendant will file what?
Response within a non-extendible period of ten days from
receipt of summons.
Should it be verified?
Yes.
What should be attached to your response?
• Certified photocopies of documents
• Affidavits of witnesses and other evidence in support
thereof.
What are the instances in small claims where the court can
dismiss the case?
• Non-submission of the required affidavits
• Falls under the summary procedure
• When a business of banking, lending, or similar
activities misrepresents themselves
• Failure of the parties to appear
Can you try to sue as an Indigent and not pay the docket
fees?
Yes.
What if the court denies your motion to sue as an indigent?
Should you pay docket fees? Within how many days?
The plaintiff shall be given five (5) days within which to pay the
docket fees, otherwise, the case shall be dismissed without
prejudice.
If the defendant does not file a response, what is the effect?
Should the defendant fail to file his Response within the required
period, and likewise fail to appear on the date set of hearing, the
court shall render judgement on the same day, as may be
warranted by the facts alleged in the Statement of Claim/s.
What if the plaintiff does not attend the hearing, what is
the effect?
Failure of the plaintiff to appear shall cause for the dismissal of
the Statement of Claim/s without prejudice.
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Is it with or without prejudice?
WITHOUT prejudice, it can be refiled.
What about when the defendant is absent during the
hearing?
Failure of the defendant to appear shall have the same effect as
failure to file a Response.
What if the defendant did not file an answer but was present
during the hearing?
The defendant who appears in the absence of the plaintiff shall
be entitled to judgement on a permissive counterclaim.
If you are engaged in a banking business or lending or
similar activities. What is the additional requirement of
small claims?
If the plaintiff is engaged in the business of banking, lending, and
similar activities, must state in the Statement of Claim that he is
engaged in such activities.
What if they misrepresent or do not allege that they are
involved in that business, what is the effect?
If the plaintiff misrepresent that he/she/it is not engaged in the
business of banking, lending or similar activities when in fact
they are engaged, the Statement of Claim/s shall be dismissed
with prejudice and plaintiff shall be meted the appropriate
sanctions, such as direct contempt.
What if summons cannot be served within 30 days, the
court will direct the plaintiff to serve the summons and still
summons cannot be served. What will be its effect on the
small claims case?
It will be dismissed but without prejudice
The rules on venue provide that if it is a personal action it
is to be filed in the residence of the plaintiff or defendant.
So, if it is a corporation, it is the place of business. In small
claims if the principal office of BPI, a banking institution, is
in Makati but it has a branch in Manila where the defendant
resides. Can it still be filed in Manila where the branch is
located under small claims?
If the plaintiff is engaged in the business of lending, banking, and
similar activities, and has a branch within the municipality or city
the defendant resides, the Statement of Claim/s shall be filed
where the branch is located.
Do we include the amount of interest and costs in
determining the threshold amount?
NO, it is exclusive of interest and costs
What is the rule for filing fees in small claims, are there
additional amounts in filing fees in small claims?
• If more than five (5) small claims are filed by one party
within the calendar year an additional filing fee of P500
shall be paid fo every claim filed after the fifth (5th) claim
• An additional P100, or a total of P600 fo ever claim filed
after the tenth (10th) claim
• Another P100 or a total of P700 for every claim filed
after the fifteenth (15th) claim, progressively and
cumulativelty
Do we just follow rule 141 on the payment of docket and
filing fees?
NO.
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Do you agree that the prohibited pleadings in summary
procedure are exactly the same in small claims?
NO.
PROHIBITED PLEADINGS IN SMALL CLAIMS
• Motion to dismiss the Statement of Claim/s;
• Motion for a bill of particulars;
• Motion for new trial, or for reconsideration of a
judgement, or for reopening of trial;
• Petition for relief from judgement;
• Motion for extension of time to file pleadings, affidavits,
or any other paper;
• Memoranda;
• Petition for certiorari, mandamus, or prohibition against
any interlocutory order issued by the court;
• Motion to declare the defendant in default;
• Dilatory motions for postponement;
• Reply and rejoinder;
• Third-party Complaints; and
• Interventions
RTC JURISDICTION
JURISDICTION OF RTC
• All civil actions in which the subject of the litigation is
incapable of pecuniary estimation
• All civil actions which involve title to, or possession of, real
property or an interest therein, where the assessed value of
such property involved exceeds P20,000 outside Metro
Manila, or for civil actions in Metro Manila where such value
exceeds P50,000
• All actions in admiralty and maritime jurisdiction where the
demand and claim exceed P300,000 outside Metro Manila,
or in Metro Manila where such demand or claim exceeds
P400,000
• All matters of probate, both testate and intestate, where the
gross value exceeds P300,000 outside Metro Manila or, in
probate matters in Metro Manila, where such gross value
exceeds P400,000.
• In all cases not within the exclusive jurisdiction of any court,
tribunal, persons or body exercising judicial or quasi-judicial
functions;
• All other cases in which the demand or the value of the
property in controversy exceeds P300,000 outside Metro
Manila, or in Metro Manila where the demand exceeds
P400,000, exclusive interest, damages whatever kind,
attorney’s fees, litigation expenses and costs
CONCURRENT JURISDICTION OF THE RTC
• Concurrent original jurisdiction with the Supreme Court in
actions affecting ambassadors, other public ministers, and
consuls.
• Concurrent original jurisdiction with the Supreme Court and
Court of Appeals in petitions for certiorari, prohibition,
mandamus against lower courts and bodies and in petitions
for quo warranto and habeas corpus.
APPELLATE JURISDICTION OF THE RTC
Over all cases decided by the MTC, MCTC, MeTC in their
respective jurisdiction.
SPECIAL JURISDICTION OF THE RTC
Certain RTCs may be designated by the Supreme Court to
handle exclusively criminal cases, juvenile and domestic
relations cases, agrarian cases, urban and land reform cases
which do not fall under the jurisdiction of quasi-judicial bodies
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and agencies, and/or such other special cases the Supreme EXCLUSIVE APPELLATE JURISDICTION OF THE CA
Court may determine in the interest of a speedy and efficient • By way of ordinary appeal from the judgement of the RTC
administration of justice. and the Family Courts
• By way of petition for review from the judgement of the RTC
FAMILY COURTS rendered in its appellate jurisdiction
• By way of petition for review from the decisions, resolutions,
ORIGINAL EXCLUSIVE JURISDICTION OF FAMILY COURTS orders or awards by the Civil Service Commissions and
• Petitions for guardianship, custody of children and habeas other bodies mentioned in Rule 43
corpus of children
• Petitions for adoption of children and the revocation thereof; APPELLATE JURISDICTION OF THE CA
• Complaints for annulment of marriage, declaration of nullity Over decisions of the MTC in cadastral or land registration cases
of marriage and those relating to status and property pursuant to its delegated jurisdiction.
relations of husband and wife or those living together under
different status and agreements, and petitions for What about annulment of judgement of the MTC. Does the
dissolution of conjugal partnership of gains; RTC exercise that under the original or appellate
• Petitions for support and/or acknowledgement jurisdiction?
• Summary judicial proceedings brought under the Family ORIGINAL
Code
• Petitions for declaration of status of children as abandoned, SUPREME COURT
dependent or neglected children, petitions for voluntary or
involuntary commitment of children, suspension, ORIGINAL EXCLUSIVE JURISDICTION
termination or restoration of parental authority and other The Supreme Court has exclusive original jurisdiction in
cases cognizable under P.D. 603, E.O 56 s. 1986, and other petitions for certiorari, prohibition, and mandamus against the
related laws • Court of Appeals
• Petitions for the constitution of the family home • COMELEC
• Cases against minors cognizable under the Dangerous • Commission on Audit
Drugs Act • Sandiganbayan
• Violations of R.A. 7610 • CTA
• Cases of Domestic Violence of women and children
ORIGINAL CONCURRENT JURISDICTION
What if there is no designated as a special family court in a • With the CA in petitions for certiorari, prohibition, and
city or locality, does that mean the case involving family mandamus against the
cases can no longer be filed? o RTC
NO. You can file it at the RTC. So, the RTC is called a court o Civil Service Commission
general jurisdiction because all cases, the jurisdiction of which o Central Board of Assessment Appeals
is not specifically provided by law to be within the jurisdiction of o NLRC
any other court falls within the jurisdiction of the RTC. o Other quasi-judicial bodies
• With the CA and RTC in petitions in certiorari, prohibition,
COURT OF APPEALS mandamus against lower courts and bodies and in petitions
for quo warranto and habeas corpus.
Is the CA only an appellate court and which does not • With the RTC in cases affecting ambassadors, public
exercise exclusive original jurisdiction? ministers, and consuls.
NO. The Court of Appeals can also exercise exclusive original
jurisdiction. APPELLATE JURISDICTION OF THE SC
It had appellate jurisdiction by way of petition for review on
ORIGINAL EXCLUSIVE JURISDICTION OF THE COURT OF certiorari against the
APPEALS • CA, Sandiganbayan, RTC on pure legal question
The Court of Appeals shall exercise exclusive-original • Constitutionality or validity of a law or treaty,
jurisdiction in actions for the annulment of the judgements of the international or executive agreement, law, presidential
RTC. decree, proclamation, order, instruction, ordinance or
regulation, legality of tax, impost, assessment, toll or
ORIGINAL CONCURRENT JURISDICTION OF THE CA penalty, jurisdiction of lower court.
• With the Supreme Court to issue writ of certiorari,
prohibition, mandamus against the following ORIGINAL CASES OF THE SC
o RTC • The following may be filed originally with the SC
o Civil Service Commission • Petition for certiorari
o Other quasi-judicial agencies mentioned in Rule • Petition for prohibition
43 • Petition for mandamus
o NLRC • Petition for quo warranto
• Concurrent and original jurisdiction with the Supreme Court • Petition for habeas corpus
and RTC to issue writ of certiorari, prohibition, mandamus, • Disciplinary proceedings against members of the
against lower courts and also writ of quo warranto (whether judiciary and attorneys
in the exercise of appellate jurisdiction or not) • Cases affecting ambassadors, other public ministers,
and consuls
• A petition for writ of amparo
• A writ of Habeas Data
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NOTE: In criminal procedure we know that it is provided by law
for the subject matter, but at the same time determined by the
allegations of the complaint or information. Similarly, in civil
cases we have jurisdiction over the subject matter which is
provided in law, nevertheless it is still determined by the
allegations of the complaint or information.
What if the case is denominated as one of specific
performance which you would think is incapable of
pecuniary estimation but the prayer is for annulment of title
and reconveyance of land, recovery of ownership and
possession over the land. What is the nature of the action?
It depends on the access values because it is a real action and
incapable of pecuniary estimation. Because the issue here is it
claims to be incapable of pecuniary estimation because it is an
action for specific performance. But in the allegation of the
complaint, it is recovery of ownership and annulment of title to
recover ownership and possession which by definition under BP
129 is one deals with ownership, title, to possession or interest
therein in real property. Therefore, it is a real action, and to
determine the jurisdiction of the court you need to know the
assessed value if it does not exceed P20,000 outside metro
manila it MTC if it does not exceed within metro manila it is MTC.
Exceeding those amount RTC.
What if in the small claims case there is a claim to be a
breach of the lease contract. You are recovering the amount
of unpaid rentals, but also you are claiming for the
defendant to vacate the premises. You filed it with form of
statement of claims filed for a small claims procedure. Will
the case be dismissed?
No. Because the court which has jurisdiction over unlawful
detainer cases is MTC. If you file it through small claims the case
is actually filed with the MTC.
It cannot be dismissed because jurisdiction is provided by law
and the law provides that the MTC has exclusive jurisdiction of
the case.
In this case you filed it with the proper court except that
your procedure is wrong. In that instance you filed it
through small claims but the proper court. But you used the
wrong procedure, what will happen to your unlawful
detainer filed through small claims procedure?
The rules provide that it will be redocketed from small claims to
summary procedure. The docketing of cases are in this wise:
• If it is small claims docket no. Small claims No. 12345
• If it is summary procedure is Summary procedure No.
12345
It will not be dismissed because it was filed in the correct court
that has jurisdiction.
Which court has jurisdiction over accion publiciana?
It depends on the assessed value because in accion publiciana
it involves title, possession of or interest therein.
NOTE: Unlawful detainer and forcible entry would have been a
real action that involves real action to, or title or possession
therein. However because the law expressly provides that
unlawful detainer and forcible entry falls within the exclusive
original jurisdiction of the MTC, then it is MTC.
Accion Publiciana involves possession of property, therefore the
determination of jurisdiction depends on the assessed value of
the property.
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REAL ACTION
An action affecting title to real property or for the recovery of
possession, or for partition or condemnation of, or foreclosure of
a mortgage on, real property,
PERSONAL ACTION
An action seeking the recovery of personal property, the
enforcement of a contract or the recovery of damages.
Is personal action synonymous to action in personam?
NO
In action in personam, the decision is binding upon whom?
The parties. An action in personam is an action against a person
on the basis of his personal liability.
Does it follow that all actions in personam are personal
actions?
NO, a real action may at the same time be an action in
personam.
ACTIONS IN REM
Actions against the thing itself. They are binding upon the whole
world.
Does it follow actions in rem are always real action? Can
you think of actions in rem thar does nor involve real
property?
When it affects status.
JURISDICTION OVER THE PERSON
Power of the court to make decisions that are binding on person.
In civil cases it is acquired either by (1) compulsory process, or
(2) his voluntary appearance
Can you waive lack of jurisdiction over the subject matter?
NO
How about lack of jurisdiction over the person?
YES, when there is no proper service of summons but the
defendant voluntarily appears or submits himself to the court.
As a general rule, we can raise lack of jurisdiction at any
time even on the first time of appeal. What do you mean by
estoppel jurisdiction?
After a party invokes the jurisdiction of the court and only after
he did not acquire relief that he wanted. He will assail the
jurisdiction he invoked.
JURISDICTION OVER THE ISSUES
The power of the court to try and decide the issues raised in the
pleadings of the parties.
JURISDICTION OVER THE RES
It refers to the court’s jurisdiction over the thing or the property
which is the subject of the action. It is acquired either
• By the seizure of the property under legal process,
whereby it is brought into actual custody of law
• As a result of the institution of legal proceedings, in
which the power of the court is recognized or made
effective.
QUASI IN REM ACTIONS
It is an action brought against persons seeking to subject the
property of such persons to the discharge of the claims assailed.
It is when an individual is named as defendant and the purpose
of the proceeding is to subject the interest therein.
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CIVIL ACTION - An action brought to enforce, redress or protect
rights.
CRIMINAL ACTION – An action brought to prosecute.
If it is a special civil action, does that mean that the ordinary
rules will not apply?
Ordinary rules will still apply subject to when otherwise provided
by the special rule.
What is a SPECIAL PROCEEDING?
It is a remedy by which a party seeks to establish a status, right,
or a particular fact.
In what cases will the Rules of Court NOT apply?
The Rules of Court do not apply to the following:
• Election case
• Land registration case
• Cadastral case
• Naturalization Cases
• Insolvency proceedings
• And other cases not herein provided for, except by
analogy or in suppletory character whenever
practicable and convenient
Let us say you filed a letter without paying docket fees, did
the court acquire jurisdiction over your person?
No, because jurisdiction over the person is acquired by filing of
the complaint. In this instance you only filed a letter, and you did
not pay docket fees.
If you want to implead additional parties and you filed a
motion in court for leave to implead an additional defendant
in so far as that additional defendant is concerned when
was the action commences?
Action commences when you filed the motion to implead.
Under Rule 1, how do you construe the rules of court?
The Rules of Court shall be liberally construed in order to
promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding.
An action to revive judgement, is that an action that is
incapable of pecuniary estimation?
YES. In determining jurisdiction of an action whose subject is
incapable of pecuniary estimation the nature of the principal
action or remedy sought must first be ascertained.
• Primarily for the recovery of a sum of money the
claim is considered CAPABLE of pecuniary estimation
and the jurisdiction depends on the amount of the
claim.
• Where the primary issue is something other than the
right to recover a sum of money, where the money
claim is purely incidental to or, a consequence of, the
principal relief sought, such actions are INCAPABLE
of pecuniary estimation hence cognizable by the RTC.
An action to revive judgement raises the issues of whether the
petitioner has a right to have the final and executory judgement
revived and to have that judgement enforced and DOES NOT
involve recover of a sum of money. It is incapable of
pecuniary estimation and shall be filed with the RTC.
So lets us say that the judgement sought to be revived deals
with a recovery of a real property and you want to revive
that judgement, do we follow the rule on jurisdiction of real
property because the judgement sought to be revived is a
real action?
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YES. We must follow the rules on jurisdiction of real property.
The proper venue depends on the determination of whether an
action for revival of judgement is a real action or a personal
action.
• REAL action: if it affects the title or possession of real
property, or interest therein, it must be files with the
court of the place where the real property is located.
• PERSONAL action: filed with the court of the place
where plaintiff or defendant resides,
What is an action to revive a judgement?
An action to revive a judgement is an action whose exclusive
purpose is to enforce a judgement by which could no longer be
enforced by mere motion.
It raises the issue of whether the petitioner has the right to have
a final and executory judgement reviving.,
Action to revive a judgement depends on the nature of the
judgment to be revived? So if the basis of action to revive
will be dependent on the action sought to be revived?
NO, since it is a separate action from the original action
What is the nature of an action to revive a judgement so that
we know what court has jurisdiction? Under B.P. 129 where
does it fall under?
Real Action. It is not personal, because it is incapable of
pecuniary estimation. For personal actions then it would depend
on the amount.
Atty Senga: It is incapable of pecuniary estimation because of
the nature of the case which is to revive a judgement. As
provided in the case of Anama the way to execute a judgement
by means of motion within 5 years, if you fail to execute the
judgement within 5 years, then you would have to revive the
judgement and the revival of a judgement is independent of the
judgement sought to be revived and therefore it is an
independent action and is incapable of pecuniary estimation.
What do you mean by jurisdiction is determined by the
allegations of the complaint?
Since jurisdiction is conferred by law, the factual allegations of
the complaint will determine which Court has the power to try
and decide the case. Irrespective of whether the parties is
entitled to the claim ascertained. So you need to have a concise
statement of the ultimate facts for determining jurisdiction
alleged in the complaint.
In the case of Anama v. Citi Bank the Court explained how
an action is incapable of pecuniary estimation. How would
you know whether an action is incapable of pecuniary
estimation?
If it is for recovery of money that is capable of pecuniary
estimation but if the remedy is other than a claim for money then
it is incapable of pecuniary estimation.
12
Distinguish Venue v. Jurisdiction 2. Even if the assessed value is for example the assessed
Venue Jurisdiction value is P30,000 the MTC will not assume jurisdiction if you
do not pay the docket and filing fees.
It is the place, or It is the power/authority of the
geographical area, in which court to hear and determine a If you will now go to the issue of docket fees you need to look at
an action or proceeding case. Rule 141 as amended. According to Rule 141 for computation
should be brought. of docket fees the Clerk of Court will look at the Fair Market
Procedural Law Substantive law Value or Zonal Valuation as the case may be.
Venue may be waived if not CANNOT be waived by the
Jurisdiction over the For Computation of
invoked either in a motion to parties
Subject Matter Docket Fees and Filing
dismiss or in the answer
Fees
May be conferred by the act Conferred/fixed by law
Assessed Value Fair Market Value or the
or agreement of the parties
Zonal Valuation whichever
The court cannot dismiss The Court may dismiss motu MTC is higher
motu proprio for improper proprio in case of lack of
• OUTSIDE Metro Manila:
venue jurisdiction over the subject In the absence of both:
not more than P20,000
matter
• WITHIN Metro Manila: Purchase Price or what is
Not more than P50,000 alleged in the complaint
*Jurisdiction over the subject
matter may be raised at any
RTC: In the excess of above-
time during the proceedings.
mentioned amount, more than
P20,000 or P50,0000
There is an amended complaint and the amended complaint
was denominated as for specific performance, but it prayed
In the case of Travilla, the Court ruled that if you do not have
for reconveyance of property as well as the cancellation of
FMV or Zonal Valuation you look at the amount ALLEGED.
defendants Torrens Title over the property, what is the
That’s why in the case the purchase price was included, the SC
nature of the action?
ruled that the purchase price is not the basis to determine
Real action.
jurisdiction over the subject matter because the price is not the
assessed value as determine by the tax declaration BUT for
For us to determine the jurisdiction of a real action what do
purposes of computation of docket fees you can use the
we look at?
purchase price in the absence of the zonal valuation and fair
The Assessed Value of the real property
market value. This is because the purchase price alleged in the
complaint falls under the third one, which says that in the
However, in the case of Trayvilla it makes mention of Rule
absence of the FMV or Zonal Value it is what is alleged by the
141 as amended by A.M. No. 04-2-04-SC and it says that for
claimant.
the Court to be able to vest jurisdiction for the payment of
docket fees it should be alleged in the complaint the fair
TWO-TIERED RULE FOR THE ASSESSED VALUE
market value or the zonal evaluation whichever is higher, in
If you do not allege the assessed value in the complaint, it is
the absence of the allegations of the complaint. Does that
sufficient if there is a tax declaration or document attached to
mean for us to have jurisdiction over the subject matter, if
the complaint that provides for the assessed value.
there is no assessed value, we can rely on the fair market
value?
First Tier: It is the assessed value alleged in the complaint
The case of Trayvilla, there is an orbiter dictum. The only issue
Second Tier: in the absence of the allegations the court can
is whether or not the court can assume jurisdiction in so far as
take a liberal stance and consider the assessed value as
the payment of docket fees.
indicated in the documents attached in the complaint
We know that to know which Court will exercise jurisdiction over
Rule on immutability of judgement is not absolute, it is
one case, we look at the assessed value of the real property as
subject to exceptions. What are these exceptions?
provided in the Tax Declaration.
1. The correction of clerical errors
2. The so-called nunc pro tone entries which cause
However, it is not enough for us to look at the law, you also need
prejudice to any party
to pay the Docket AND Filing fees. The Court will not exercise
3. Void judgements;
jurisdiction if you do not pay them. That’s why in Jurisdiction over
4. Whenever circumstances transpire after the finality of
the parties for the court to acquire jurisdiction over the plaintiff
the decision rendering its execution unjust and
there must be valid filing of the complaint. For the plaintiff to file
inequitable.
a complaint, the plaintiff needs to pay for docket fees and filing
fees. IF you DO NOT pay the Court cannot assume jurisdiction
There is a complaint filed called the quieting of title and
reconveyance and declaration of nullity of affidavit and
Two concepts to consider:
sales certificate. So the plaintiff is assailing the certificate
1. Jurisdiction over the subject matter which is provided by law
of title of the defendant because there is not effective
as provided by B.P. 129. Which provides that if the
transfer of title because of the forgery in the affidavit. But
assessed value is not more than P20,000 if outside Metro
the land involved here is a friar land. What is the nature of
Manila, and not more than P50,000 if within Metro Manila
the action?
and the MTC and in excess of that is the RTC.
Real Action. It involves an action of title or possession of a real
property. The Supreme Court said that the action for

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reconveyance seeks the transfer of property to its legal or
rightful owner.
The next issue here is that the land is a friar land. The
question now is whether it should be Land Management
Bureau (formerly, the Bureau of Public Lands) that should
exercise jurisdiction over the case. What is the ruling of the
Court?
Regular Court has jurisdiction over the case. This is because
jurisdiction is provided by law and act 1120 does not provide that
the Bureau of Public Lands will have jurisdiction over a case of
friar lands that has already been transferred to a private person.
Once it is transferred to a private person it will not be under the
Jurisdiction of the Land Management Bureau.
What is an accion publiciana?
It is a plenary action to recover the right of possession which
should be brought in the proper regional trial court when
dispossession has lasted for more than one year, it is an
ordinary civil proceeding to determine the better right of
possession of realty independently of title.
Which court has jurisdiction?
Depends on the assessed value
In an accion publiciana can we also have a determination of
the ownership of the real property?
Yes. If the issue of possession cannot be determined without
first determining the issue on ownership, the court may also
determine the ownership of the property involved but such
determination is not final. The issue of ownership shall be
resolved only to determine the issue of possession.
If the action complaint is denominated as accion publiciana
but it alleges that within one year from the last demand
Destura who is the lessee who refuse to pay the lease was
also demanded to vacate the premises but refused to
vacate the property. The value of the property is P100,000
in Metro Manila. Which Court has jurisdiction over the
case?
Exclusive Jurisdiction of the MTC because the demand to
vacate the premise constitute an unlawful detainer.
When can we raise the issue of lack of jurisdiction?
At any time of the proceeding.
Even for the first time on Appeal?
Yes.
The exception to this rule is the rule on estoppel laches,
when is there estoppel by laches like in the case of Tijam?
If you timely raise it, estoppel by laches will not apply.
What is the doctrine of immutability of judgements?
The doctrine of immutability of judgements bars courts from
modifying decisions that have already attained finality, even if
the purpose of the modification is to correct errors of facts or law.
Even if it is the wrong judgement?
Yes. Because of principle that at risks of errors, litigation must
come to an end and a right to appeal is not really a constitutionalWhat do you mean by JURISDICTION OVER THE REMEDY?
right but more of a substantive right. And being substantive you
must follow the period prescribed by law. If the law prescribes a COMPANY (PLDT) v. CITI APPLIANCE M.C. CORPORATION
period for you to appeal you must follow that.
We said earlier that when there is no jurisdiction over the
subject matter the judgement is void. So even if more than
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15 days from the rendition of that void judgement you
cannot execute that void judgement. So a void judgement
may never be executed?
You must raise the issue of the nullity if the decision
In the case of Bautista v. Lindo the Court gave examples on
cases incapable or pecuniary estimation, what are these
cases?
The following are actions which are incapable of pecuniary
estimation:
• Actions for specific performance;
• Actions for support which will require the determination
of the civil status;
• The right to support of the plaintiff;
• Those for the annulment if decisions of lower courts;
• Those for the rescission or reformation of contracts;
• Interpretation of a contractual stipulation
In the case of Bautista he sold properties that are covered
by a free patent. Now in the contract of Sale it does not
provide for a right to redeem or repurchase. However, under
Sec. 119 of Commonwealth Act 141, it provides for a period
of five years to redeem or repurchase a property that is
subject of a free patent. The one who sold the property
subject to a free patent filed a case in Court for repurchase
of the land being sold. What is the nature of the action.
Specific performance. It is incapable of pecuniary estimation
which is not a real action.
But why is it not a real action? Isn’t it about the title of a
property because you want to buy it back?
It is an action for specific performance because he wants to
enforce his right to repurchase which is provided by law
But does it not matter that the right to repurchase was not
included as a provision in the contract?
It does not matter, because the law is deemed written in the
contract even if you do not state it.
NOTE: there are only four aspects of jurisdiction: subject
matter, the res, issues, and person but in the case of PLDT v.
Citi Appliance jurisdiction over the remedy is discussed.
There was a land sold by Mr. Bautista covered by CA 141
(land covered by a free patent). He sold it to another. Under
CA 141, Sec. 119, if the land is covered by a free patent, the
seller has the right to repurchase it within 5 years. This is
not part of the contract. Nevertheless, it is provided by law.
Mr. Bautista is seeking to repurchase the land from the
buyer, invoking CA 141. The buyer refuses. Bautista filed a
case to repurchase the land pursuant to CA 141. Is this a
real action?
This is an action for specific performance. It is incapable of
pecuniary estimation as such it is NOT a real action. This is a
PERSONAL ACTION. You are seeking to enforce a right – the
right to repurchase.
NOTE: It is essential to determine the nature of the action to
determine which court has jurisdiction.
In the case of PHILIPPINE LONG DISTANCE TELEPHONE
(G.R. No. 214546, October 9, 2019) Respondent is trying to
excavate his property so he can build a parking space
underground. In the process of doing so, the PLDT lines extend
over their property. So they are asking PLDT to vacate. PLDT
14
refused. They filed an action for forcible entry on the ground of Jurisdiction over the Jurisdiction over the
stealth. SUBJECT MATTER REMEDY
Pertains to the court’s That which the party filing the
ISSUE: Whether the Court has jurisdiction? competence over the case wants the court to
process declare, and which
The Court discussed jurisdiction over the subject matter addresses the breach of the
VERSUS jurisdiction over the remedy. right or obligation
SOURCE of Jurisdiction
JURISDICTION OVER THE SUBJECT MATTER is conferred B.P. 129 – it is conferred by Rules of Court – it is a
by law. It is for the court to know whether they have the law. procedural matter which the
competence to hear and decide a case. As far as jurisdiction court may change ad hoc or
over the subject matter is concerned, BP 129 provides that the It can be raised even for the clarify the application or
MTC has jurisdiction over actions for forcible entry. first time on appeal. interpretation of, in proper
cases
You have one year to bring an action for forcible entry. The
issue is whether the action has prescribed? What is the What is jurisdiction over the parties?
reckoning point to count the one-year period? From the The court’s competence to hear the case when it has acquired
time of last demand or from the time of discovery? jurisdiction over the person of the plaintiff and defendant. It is
The SC ruled that in forcible entry cases, there is no need to the power of the court to make decisions that are binding on the
make a demand. You only need demand for unlawful detainer parties.
cases. So, the one-year period is counted from the date of
discovery. Why does the court have to have jurisdiction over the
person of the plaintiff and the defendant? What is the
The SC held that jurisdiction over the remedy is the court’s purpose?
competence over the process. But you should not confuse In order for them to be bound by the proceedings and the ruling
jurisdiction over the remedy with the relief that the party is of the court.
praying for.
How does the court acquire jurisdiction over the person of
Jurisdiction over the remedy is provided by the Rules of Court. the plaintiff?
It is mainly a procedural matter. The Rules of Court provides that For the court to assume jurisdiction over the person of the
you should bring an action for forcible entry within 1 year from plaintiff, the plaintiff must file a valid complaint or petition and
discovery (if by means of stealth) or from dispossession (if by pay the required filing and docket fees.
other means of ouster).
How does the court acquire jurisdiction over the person of
Exact wording from the case: the defendant?
“Jurisdiction over the remedy is different from jurisdiction over It is acquired either by his:
the subject matter. Jurisdiction over the remedy pertains to the (a) voluntary appearance or
court's competence over the process. This should not be (b) By the service of summons on the defendant.
confused with the relief, that which the party filing the case wants
the court to declare, and which addresses the breach of the right You are A. B owes you money in the amount of Php 1M.
or obligation. Bwiset na bwiset ka sa kanya bec ayaw niyang magbayad.
However, you also want to leave the country. You talk to
The source of jurisdiction is important. Generally, jurisdiction your best friend, C, asking him to file a case in your behalf.
over the remedy is provided by the Rules of Court. Thus, it is You are leaving the country in 3 hours, so you asked him to
mainly a procedural matter which this Court the authority that file the case immediately. C filed the case in your name and
promulgates the Rules of Court — may change ad hoc, or clarify against B. However, the one who signed the certification
the application or interpretation of, in proper cases. against forum shopping was C. Is that sufficient for the
court to acquire jurisdiction over your person?
Meanwhile, the source of jurisdiction over the subject matter is No. C has to have a proof of authorization, a special power of
generally conferred by law. This is why the doctrine is that this attorney (SPA).
type of jurisdiction cannot be waived by the parties. Laws can
only be amended by a subsequent law, and nothing that parties What is the effect of filing a case on A’s behalf but without
do in any case can change it. Thus, the question of jurisdiction a special power of attorney?
over the subject matter can be raised even for the first time on It is deemed not filed.
appeal, not simply because it is jurisdiction over the subject
matter, but mainly because it is the law that prescribes it. What is jurisdiction over the issues?
Competence of the court to rule on an issue. It is the power of
Parenthetically, "subject matter" in jurisdiction over the subject the court to try and decide the issues raised in the pleadings of
matter can refer to: (a) the cause of action, or the breach of legal the parties.
right or legal duty; or (b) the res, or the thing over which the legal
right or duty breached subsists. In forcible entry or unlawful How do we know that the court has jurisdiction over the
detainer actions, the subject matter refers to a breach of the issues?
general right to actual possession, which is an attribute of Look at the pleadings. Jurisdiction over the issues is based on
ownership and the res which is always real property.” the issues raised in the pleadings by the parties.

Is it correct to say that, as a rule, if you did not raise an issue

in the pleading, the court cannot rule on that issue? YES
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Is this rule ABSOLUTE? Or is there an exception where the
court can rule on an issue not alleged in the pleading?
NO. There is an exception. When there is an issue raised
during the presentation of evidence and the other party
FAILS to timely object. There will be an amended of the
pleading to conform to the evidence.
Distinguish jurisdiction over the subject matter from
jurisdiction over the issue.
Jurisdiction over the subject matter is conferred by law;
jurisdiction over the issue can be stipulated by the parties.
What is jurisdiction over the res?
Jurisdiction of the court over the property subject of litigation. It
refers to the court’s jurisdiction over the thing or the property
which is the subject of the action.
How does the court acquire jurisdiction over the res?
(1) By seizure of property under legal process where it is
brought to the actual custody of the court (actual custody),
and
(2) as a result of the institution of a legal proceeding where
the power of the court is recognized and deemed effective
(within the potential power of the court).
In an action for annulment of marriage where the husband
is a non-resident who is also not a citizen of the Philippines,
but the wife is a Filipino, how does the court acquire
jurisdiction over the res in their annulment of marriage?
If at least one of the parties is domiciled in or a national of the
forum.
What is a personal action?
Action not involving title to, possession, or interest in real
property (damages etc.)
What is a real action?
Action involving title to, possession, or interest in real property
What is the purpose why we want to distinguish real
property from personal property?
To determine jurisdiction. And to determine venue.
What is the rule on venue (personal action versus real
action)?
• REAL ACTION: it is local depends on the location of
the real property. The place where the property or any
portion thereof is situated.
• PERSONAL ACTION: it is transitory depends on the
residence of the plaintiff or defendant
What if you have a non-resident defendant in a personal
action?
Residence of the plaintiff. If involves real property, then where
the property is located.
What is the purpose why we want to distinguish whether
the action is in personam, in rem, or quasi in rem?
To distinguish as to whom the judgment shall be enforced. Also
to know which rule on service of summons we will apply.
What is an action IN PERSONAM?
Action filed against a person to enforce his personal liability.
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In an action in personam, does that court need to have
jurisdiction over the person of the defendant?
YES. Because it is to enforce his personal liability. To enforce
that liability, the defendant must be bound.
Is an action in personam automatically a personal action?
NO.
Can we have a real action that is in personam?
YES.
How is summons served in an action in personam?
Personal service. Or substituted service of summons.
If the defendant in an action in personam is a non-resident
who cannot be found in the Philippines, can we
automatically use summons by publication?
NO. Because the Rules provide that it will only apply to action in
rem and quasi in rem.
In an action in personam for sum of money filed against a
non-resident defendant not found in the Philippines, we
cannot serve summons. And the Rules provide that for
extra-territorial service of summons (which includes
summons by publication), the action has to be quasi in rem.
So what is your remedy since your action is in personam
and you cannot avail of the summons by publication?
The remedy is to convert the action to quasi in rem.
HOW?
By acquiring jurisdiction over the res by actual seizure of the
property.
What is the PROCESS?
Apply for a write of preliminary attachment. After it has been
attached, that is the time when you can have summons by
publication.
What if you did the summons by publication first, and then
you converted it to quasi in rem by applying for writ of
attachment after? Is that valid?
NO. It is INVALID. Because at the time you did publication, it is
in personam. The SC ruled that you need to convert it first to
quasi in rem. After it has been converted, that is the time when
you can serve summons by publication.
What is quasi in rem?
Quasi in rem involves a real property but directed to a particular
person.
In order for the court to acquire jurisdiction over the res in
a quasi in rem, is service of summons (on the defendant)
required?
NO.
Nevertheless, if it is an action quasi in rem, do we still need
to comply with the rules on service of summons?
Yes. To comply with the due process requirement. Because in
quasi in rem, it affects/threatens/burdens the interest of the
person over the property subject of litigation. It is to afford him
the chance to protect his interest if he likes to.
What is an action in rem?
It is an action against a particular property.
An action in rem is binding upon the whole world. Correct?
YES.
16
What is an action quasi in rem? Can a person who is not a real party in interest be part of a
Action involving the status of the property over which a party has case (whether as a plaintiff or as a defendant)?
interest. Not binding upon the whole world, but rather affects As a general rule, the parties should always be a party in
only the particular parties. interest.

Action for partition of real property? In criminal cases, however, where there is a public offense,
Quasi in rem who is the real party in interest?
The STATE.
Action for quieting of title?
Quasi in rem If there is an acquittal of the accused, and a petition for
certiorari on the ground of GADALEJ was filed by a private
Action for adoption? complainant, will the case prosper?
In personam NO. The private complainant is not a real party in interest. The
Solicitor General should file the case.
Action for correction of entry in the local Civil Registrar?
In rem. What is the test to determine whether there is failure to state
a cause of action?
Action for nullity of marriage? Whether or not the court can render judgment in accordance
In personam. with the prayer prayed for. The test is – assuming the allegations
in the plaintiff are true, will it entitle the plaintiff to the remedy
Action for support? prayed for?
In personam
In the Heirs of Dolleton v. Real Estate Management case,
Judicial foreclosure of real estate mortgage? the defendants are seeking dismissal of the complaint on
Quasi in rem the ground that there is failure to state a cause of action.
Was there failure to state a cause of action? They claimed
Land registration proceedings? that they have been in possession of the property for 90
In rem years. The respondent assailed they own the property.
No. There is a cause of action because they applied the rule on
Specific performance, breach of contract? acquisitive prescription. Assuming the allegations are true, there
In personam is a cause of action to speak of.

RULE 2 As a rule, all cases should have a cause of action under

CAUSES OF ACTION ordinary rules?
Yes.
Sec. 1, Rule 2
SECTION 1. Ordinary Civil Actions, Basis of .— Every ordinary If there is lack of cause of action, what is the effect?
civil action must be based on a cause of action The case will be dismissed.

Sec. 2, Rule 2
SECTION 2. Cause of Action, Defined. — A cause of action
is the act or omission by which a party violates a right of another
Is the right of action the same as the cause of action?
NO. Jurisprudence provides that cause of action is the formal
statement of facts that give rise to the remedial right that is the
right of action. The right of action is the remedial right to maintain
an action in court.
Is it correct to say that the right of action springs from the
cause of action?
YES
Elements of cause of action
(1) there is a legal right by one party ;
(2) the other party has the obligation to respect that right;
(3) there is an act or omission by the defendant in violation
of the right of the plaintiff.
What is a real party 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 law or these
Rules, every action must be prosecuted or defended. (RULES
OF COURT, RULE 3, Section 2)
But are there instances where notwithstanding that there is
no cause of action, the case will still prosper? In what
instances?
Action for declaratory relief.
What is an action for declaratory relief?
Rule 63, Sec. 1, Rules of Court – File the case before there is a
breach or violation. Under ordinary rules for cause of action,
there is no cause of action. But the case will prosper because
this is a special civil action, governed by ordinary rules unless
provided for by special rules.
Rule 63, Sec. 6, Rules of Court – If there is a breach during the
pendency of the Rule 63 case, the case will be converted into
an ordinary civil action and the parties will be allowed to file their
pleadings. Why? Because there is now a breach, so the rules on
ordinary civil action apply now.
Rule 63 is not only about declaratory relief. There are other
similar remedies. What are these similar remedies?
Other remedies are:
• Reformation of contracts
• Quieting of title
• Consolidation of ownership
In these instances, we use Rule 63. (RULE 63, Second
paragraph, RULES OF COURT)

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It is not enough for you to bring an action based on a cause
of action. There is also a period to bring a cause of action.
If you want to bring a cause of action based on a written
contract, what is the period within which you can bring an
action?
10 years.
There are also condition precedents for you to have a cause
of action. If you loaned money to B, for your cause of action
to accrue, is it enough that you loaned money to B?
No. The loan must be due and demandable. Must make a
demand to pay, unless the contract provides that demand is not
needed to incur delay.
Is it possible for you to file a collection for sum of money
case even before the loan is due?
As a general rule, no. The loan at that time is still premature.
What if B lose in a casino, can you bring an action?
NO. You cannot invoke the doctrine of anticipatory breach.
Jurisprudence provides that it is a premature cause of action. It
is just fear; merely speculative.
What is the doctrine of anticipatory breach? When will the
doctrine apply?
There must be a positive refusal of the other party to perform the
contract.
If before the debt became due and demandable, there is positive
refusal or denial, then you can apply the doctrine of anticipatory
breach.
In what other instances can you bring an action before
waiting for the debt to mature?
YES. Article 1198 of the Civil Code provides that a debtor shall
lose his right to make use of a period:
(1) When after the obligation has been contracted, he
becomes INSOLVENT, unless he gives a guaranty or
security for his debt;
(2) When he DOES NOT FURNISH to the creditor the
guaranties or securities which he has promised;
(3) When by his own acts he has IMPAIRED SAID
GUARANTIES AND SECURITIES after their
establishment, and when through a fortuitous event
they disappear, unless he immediately gives a new one
equally satisfactory;
(4) When the debtor VIOLATES ANY UNDERTAKING, in
consideration of which the creditor agreed to the
period;
(5) When the debtor attempts to ABSCOND
NOTE: If for instance, your obligation is subject to a period such
that it is payable after one year. If you make a demand to pay
before that one year and assuming that the doctrine of
anticipatory breach does not apply, your action is premature.
It needs to be due and demandable and you need to make a
demand but despite the demand it was not paid. HOWEVER,
even if it was not due you can bring an action based on;
• There is anticipatory breach
• You lose the period to demand under ARTICLE 1198
(demand is still necessary)
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You entered into a contract to sell with B to buy a tricycle
payable annually, 100K pesos every December 31. During
the first year, you already failed to pay the first installment.
Can B file an action for collection of sum of money against
you for the first installment, or is it premature?
Yes. B can demand 100K, unless the contract provides that in
case of breach, the whole amount will be due and demandable.
In this instance, the cause of action is divisible. The first cause
of action (first installment) already accrued with the breach. You
can already bring an action for the first installment, unless there
is an acceleration clause.
What is an acceleration clause?
It provides that if there is non-payment of any installment, the
whole obligation will become due.
What is a splitting of causes action?
If two or more suits are instituted on the basis of the same cause
of action, the filing of one or a judgment upon the merits in any
one is available as a ground for the dismissal of the others
Mr. Kho entered into a contract to sell with Mr. Suarez. In
your contract to sell, you agreed that the purchase price will
be paid by you in 10 annual installments every January of
each year. On January 2020, the first installment was due,
you did not pay. Mr. Kho made a demand for payment on
February but Mr. Suarez did not pay anything. However, Mr.
Suarez did not say that he has no intention to pay for the
obligation.
• Can you bring an action for the first installment?
YES
• Your only action was for the payment of the purchase
price, but you’re only bringing a part of the purchase
price as an action. Isn’t there a splitting of action?
NOTE: FAILURE TO MAKE A DEMAND
If you fail to make a demand, then your action is premature.
The only exception is when you make a waiver to the demand.
There is a waiver to demand when in your contract it provides
that the obligation is due on particular date without need further
demand.
In this instance even without making a demand your cause of
action will arise because in your contract because the obligation
is due.
What is the test to determine if there is a splitting of action?
• Whether the same evidence would support and sustain both
the first and second causes of action (also known as the
"same evidence" test), or
• Whether the defenses in one case may be used to
substantiate the complaint in the other. Also fundamental is
the test of determining
• Whether the cause of action in the second case existed at
the time of the filing of the first complaint
When there was a breach of installment, and an action was
filed for the first installment. Was the action for the second
to tenth installment already existing?
NO. It was only the first installment that was due and
demandable. All second to tenth were not yet due.
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If it was already September of 2021, two installments
(January 2020 and January 2021) are already past due. Can
you already bring two actions for the collection of the sum
of money? One for the first installment and another for the
second installment?
NO. They should be filed together.
What is the effect if you don’t file it together?
There is a splitting of action. If for instance all ten installments
are already due, you’re not going to file 10 actions for the 10
installments. You are just going to file one case for the purchase
price.
BUT, if it was divisible on the first time. Where the first one is
only due and the rest was not yet due, you can bring an action
for the first one. If BOTH are already due then there is a single
cause of action. You cannot separate it, otherwise there is a
splitting of action.
If there is splitting of action, what is your ground for
dismissal?
Litis Pendentia or Res Judicata
Note: splitting of action is alleged in the affirmative. The
defendant may move for the dismissal and his right to do so is
non-waivable.
LITIS PENDENTIA
Litis pendentia as a ground for the dismissal of a civil action
refers to that situation wherein another action is pending
between the same parties for the same cause of action, such
that the second action becomes unnecessary and vexatious.
The underlying principle of litis pendentia is the theory that a
party is not allowed to vex another more than once regarding the
same subject matter and for the same cause of action. This
theory is founded on the public policy that the same subject
matter should not be the subject of controversy in courts more
than once, in order that possible conflicting judgments may be
avoided for the sake of the stability of the rights and status of
persons.
REQUISITES OF LITIS PENDENTIA
a) the identity of parties, or at least such as representing
the same interests in both actions;
b) the identity of rights asserted and relief prayed for, the
relief being founded on the same facts; and
c) the identity of the two cases such that judgment in one,
regardless of which party is successful, would amount
to res judicata in the other.
RES JUDICATA
Res judicataliterally means "a matter adjudged; a thing judicially
acted upon or decided; a thing or matter settled by judgment." It
also refers to the "rule that a final judgment or decree on the
merits by a court of competent jurisdiction is conclusive of the
rights of the parties or their privies in all later suits on points and
matters determined in the former suit. It rests on the principle
that parties should not to be permitted to litigate the same issue
more than once; that, 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 remains unreversed, should be conclusive
upon the parties and those in privity with them in law or estate
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REQUISITES OF RES JUDICATA
• The former judgment must be final;
• the court that rendered it had jurisdiction over the
subject matter and the parties;
• it is a judgment on the merits; and
• there is — between the first and the second actions —
an identity of parties, subject matter and cause of
action
LITIS PENDENTIA v. RES JUDICATA
LITIS PEDENTIA RES JUDICATA
both cases are pending. But There is already a judgement
the test to determine if it is which would bar another
litis pendentia is if you render case.
judgement in one of the
cases, whether your
successful or not, will it
operate as res judicata and
bar the second case.
Ms. Villena loaned money to Ms. Andaya in the amount of
P100,000. Ms. Andaya really refused to pay. Ms. Villena
wants to bring an action for recover of P100,000 with
interest at legal rate of 6% per annum and for moral
damages. Can you bring three separate cases? (One for
moral damages, one for the interest, and one for the
payment of loan)
NO. It is possible that you are asking several reliefs but it is
actually one single cause of action. If you separate it there will
be splitting of cause of action, because you are already
shopping for forum.
Ms. Panandigan loaned money to Ms. Ang of P1M and the
loan was secured by a promissory note and also a real
estate mortgage. Can you file two separate cases? One for
recovery of money on the basis of the promissory note and
the other one for the foreclosure or real estate mortgage?
NO. These remedies are ALTERNATIVE. You can only avail of
one. This is because there is only one action for recovery. Even
if the second action is for a foreclosure of mortgage, it is NOT a
property case. Your end view for the foreclosure is so that your
loan will be paid.
This is an example where you have ONE CAUSE OF ACTION
BUT SEVERAL RELIEFS OR REMEDIES. There are several
cases possibly filed but you can only avail of one.
In loan contracts secured by a real estate mortgage, the rule is
that the creditor-mortgagee has a single cause of action against
the debtor-mortgagor, i.e.,
• to recover the debt, through the filing of a personal
action for collection of sum of money or
• the institution of a real action to foreclose on the
mortgage security.
The two remedies are alternative, not cumulative or
successive, and each remedy is complete by itself. Thus, if the
creditor-mortgagee opts to foreclose the real estate mortgage,
he waives the action for the collection of the unpaid debt except
only for the recovery of whatever deficiency may remain in the
outstanding obligation of the debtor-mortgagor after deducting
the bid price in the public auction sale of the mortgaged
properties. Accordingly, a deficiency judgment shall only issue
after it is established that the mortgaged property was sold at
public auction for an amount less than the outstanding obligation
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If you bring an action for collection of money, does that
mean you already forego your foreclosure?
Yes
If you bring your action for foreclosure of mortgage, you
already forego your action for collection of money?
Yes
TEST TO DETERMINE IF JOINING OF CAUSE OF ACTION
OR IF THERE IS JUST ONE CAUSE OF ACTION WITH
SEVERAL RELIEFS
The question of the joinder of causes of action involves 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 ground would bar recovery on
the other,
• whether the same evidence would 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.
Andaya bought an action for sum of money against Suarez
in for the amount of the loan. Andaya won the case after-
which the judgement became final. She moved for
execution of judgement. Pursuant to the writ of execution,
the sheriff goes to Suarez and asked him to pay. So, the
next step if the money cannot be satisfied is to attach some
properties then it will be sold for public auction. Suarez only
has one property; the same property is subject to a real
estate mortgage. If the same is attached and sold in an
auction, will there now be splitting of action in this
instance?
NO. Because it is pursuant to the case that Andaya chose, which
is collection for the sum of money. It is part of the collection of
sums of money, there is NO SPLITTING OF ACTION. It just so
happens that the property attached is the same property subject
of the mortgage BUT Andaya is not pursuing foreclosure of
mortgage.
RULE 68, SECTION 6 DEFICIENCY JUDGEMENT
“Deficiency judgment.— If upon the sale of any real property as
provided in the next preceding section there be a balance due
to the 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.”
Under this is instance, if you pursue a foreclosure of mortgage
and the property will be foreclosed. It will then be sold in an
auction. If the property is sold in an auction and price in the
auction is the P600,000 but the loan is P1M. There is a balance
of P400,000. The remedy is to seek for Deficiency Judgement.
In this instance, there is still NO splitting of cause of action
because deficiency judgement is part of the procedure in
foreclosure of mortgage. What you will do is seek in the same
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court and in the same case for deficiency of judgement by
motion.
If Suarez issued postdated checks to pay for his loan. They
were dishonored, Andaya gave notice but he still did not
pay. Andaya then filed a case for B.P. 22, can you also file
a separate civil case for the civil aspect arising from the
crime?
NO. Under Rule 111, it categorically provides that the civil case
is deemed instituted with the criminal case and reservation is not
allowed.
Can you apply this retroactively?
Yes. Because procedural rules are construed to be applicable to
actions pending and undetermined at the time of their passage
and are deemed retroactive in that sense and to that extent.
TEST TO DETERMINE IDENTITY OF CAUSE OF ACTION
• whether the same evidence would support and sustain
both the first and second causes of action (also known
as the "same evidence" test), or
• whether the defenses in one case may be used to
substantiate the complaint in the other. Also
fundamental is the test of determining
• whether the cause of action in the second case exist
The parties, 3 of them entered into a compromise
agreement covering a parcel of land and that compromise
agreement was submitted to the court for approval. The
court rendered a judgement for compromise, subsequently
one of the parties bought an action to recover the land
subject to the agreement. So out of the 5 properties, the
action was only bought for the 3 properties. Can this be
done?
NO. Because there is RES JUDICATA. There is already a
judgement for the compromise agreement and a resolution of
the properties. So, if you another action because of that there
will a splitting of a cause of action. It will be dismissed on the
ground of res judicata.
When we say that there should be the identity of parties,
should it be exactly the same persons?
NO. It does not necessarily mean identical parties, it can also
include identical interests represented.
JOINDER OF CAUSES OF ACTION
Joinder of actions (or joinder of causes of action) is the union of
two or more demands or rights of action in one action. It is the
union of two or more civil causes of action, each of which could
be made the basis of a separate suit, in the same complaint,
declaration, or petition.
Villena loaned money to Ang in January 2020 in the amount
of P20,000. Then Villena loaned another P20,000 on
February. And then in March another P20,000 again. All the
loans have different maturity dates. By September, all the
loans are past due, can Villena file three cases against Ang
separately for those three loans?
YES. Because there are different causes of action. There is a
separate right and a separate wrong for each cause of action.
But you can join them.
NOTE: there are cases when you have separate contracts but
there is only one cause of action because the contracts are
connected.
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REQUISITES FOR JOINDER 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:
1. The party joining the causes of action shall comply with
the rules on joinder of parties;
2. The joinder shall not include special civil actions or
actions governed by special rules;
3. 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
4. Where the claims in all the causes of action are
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.
FIRST REQUISITE: PERMISSIVE JOINDER OF PARTIES
TEST TO DETERMINE OF IDENTITY OF PARTIES
"[t]here is identity of parties where the parties in both actions are
the same, or there is privity between them, or they are
successors-in-interest by title subsequent to the
commencement of the action, litigating for the same thing and
under the same title and in the same capacity. Absolute identity
of parties is not required, shared identity of interest is sufficient
to invoke the coverage of this principle. Thus, it is enough that
there is a 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.
In the example, do we need to follow the first requisite?
NO.
So, does that mean since it does not mean the first
requisite, you cannot have a joinder of parties?
The first requisite in this case does not need to be applied
because they are the same parties. It does not involve several
parties. We only apply joinder of parties if you join different
parties. In the example given, they are the only two parties for
all the causes of action. There is no need to test it against the
first requisite.
Ricardo borrowed money from a bank and there is a surety,
Rania, who secured the loan. Additionally, he has Isabelle
who is the guarantor of the loan. When the loan became
past due, the bank in pursuing Ricardo also joined Rania
and Isabelle. Can they be joined?
Multiple parties but their involvement arises from the same
transaction
What is the nature of these parties?
• What is the nature of the obligation of a surety?
Solidary debtor wherein you can claim the whole amount from
the surety.
• What is the nature of the surety as a party?
In this case the bank can claim the whole money from Ricardo.
If the action was filed against Rania alone, then she is
indispensable. But if it is against both of you she is not an
indispensable party anymore because the amount may be
collected from her or the bank.
• What is the nature of the guarantor as a party?
There cannot be a joinder for the guarantor. In fact you do not
have a cause of action against the guarantor because the
guarantor’s obligation arises only after the benefit of excursion
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has already been exercised. There is no cause of action unless
the guarantor waives the right of excursion.
Mr. X is driving his car and there was a common carrier that
collided with it. After the collision, his car was damaged. In
making the repairs for damages on the car, there was a cost
which amounts to P100,000. Mr. X goes to his insurance
company. But the insurance company only paid for
P20,000. Can Mr. X bring an action against the common
carrier for the balance of P80,000?
YES.
Can the insurance company claim the amount or P20,000 it
paid to Mr. X from the owner of the common carrier?
YES. The insurance company is surrogated to the rights of the
insured party?
Can we argue that these cases cannot be joined because
the responsibilities of each party arise from different legal
basis, one from a quasi-delict and the other from an
insurance contract?
• Are there the same questions of facts? YES, it arises
from the same accident.
• Is there a common question of law? YES, because of the
liability of the common carrier.
• Does it arise from same transaction or series of
transaction? YES
• So, we can join them together? YES
SECOND REQUISITE: THE JOINDER SHALL NOT INCLUDE
SPECIAL CIVIL ACTIONS OR ACTIONS GOVERNED BY
SPECIAL RULES.
Mico has two properties. For first property (acquired
through prescription), he has been in open, continuous,
exclusive, notorious, possession since June 12, 1945
through your predecessors in interest over an agricultural
land. Mico sought for it to be titled in his name and acquired
a torrens title over the property. The second property is
where he resides. The Government wants to expropriate the
property he is living in because they will use it as a facility
for the virus.
At the same time Mico was fighting with them, he mentioned
“I only have two properties”. When the government
checked the other property, they claimed that it was a
government land. The Government instituted an action to
annul the title for the first property. Can they join both
actions together?
NO. The action for expropriation is a special civil action
while the action to annul the title is an ordinary civil action.
NOTE: Rule 62-71 are the special civil actions.
THIRD REQUISITE: WHERE THE CAUSE OF ACTION ARE
BETWEEN THE SAME PARTIES BUT PERTAIN TO
DIFFERENT VENUES OR JURISDICTIONS x.x.x
This rule so we test it with the example with the common
carrier. One should be with the RTC?
It should be with the same parties. In this case there are three
different parties. If it is between the same parties but they pertain
to different venues or jurisdiction it is allowed in the RTC
provided that one of the causes of action is within the jurisdiction
of the RTC, and the venue lies therein.
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SPOUSES DECENA V. SPOUSES PIQUERO
There was a house and lot sold in Paranaque subject to a
MOA with a purchase price payable with six installments
post-dated checks with a provision stating that if two
installments are dishonored then the property should be
returned to the seller. Two checks were dishonored. At that
time the seller was already living in Bulacan. The seller
bought an action for annulment of the MOA and recovery of
the land. They claimed that they can file it at RTC Bulacan
because the annulment of MOA is a personal action as such
it can be filed to where they are residing now which is
Bulacan. Are they correct?
The action of the petitioners for the rescission of the MOA is a
REAL ACTION. As such, the action should have been filed in
the proper court where the property is located, namely, in
Parañaque City, conformably with Section 1, Rule 4 of the Rules
of Court. Since the petitioners, who were residents of Malolos,
Bulacan, filed their complaint in the said RTC, venue was
improperly laid.
Was there a joinder of action?
NO. In this case, petitioners had only one cause of action
against the respondents, namely, the breach of the MOA upon
the latter's refusal to pay. The claim for damages for
reasonable compensation for the respondents' use and
occupation of the property, as well as moral and exemplary
damages are merely incidental to the main cause of action,
and are not independent or separate causes of action.
NOTE: in this the cause of action is the recovery of property but
in order the nullity of contract, that is why the ground used was
breach of contract.
FOURTH REQUISITE: WHERE THE CLAIMS IN ALL THE
CAUSES OF ACTION ARE PRINCIPALLY FOR RECOVERY
OF MONEY, THE AGGREGATE AMOUNT CLAIMED SHALL
BE THE TEST OF JURISDICTION
TOTALITY RULE
In actions where the jurisdiction of the court is dependent on the
amount involved, the test of jurisdiction shall be the aggregate
sum of all the money demands, exclusive only of interest and
costs, irrespective of whether or not the separate claims are
owned by or due to different parties. If any demand is for
damages in a civil action, the amount thereof must be
specifically alleged.
Totality rule is applied also to cases where two or more plaintiffs
having separate causes of action against a defendant join in a
single complaint, as well as to cases where a plaintiff has
separate causes of action against two or more defendants joined
in a single complaint. However, the causes of action in favor of
the two or more plaintiffs or against the two or more defendants
should arise out of the same transaction or series of transactions
and there should be a common question of law or fact, as
provided in Section 6 of Rule 3.
Clarice loaned money to Krystel on three separate
occasions with three different maturity dates. Each loan
was at P20,000 each but the interest Clarice imposed is P2M
each. Which court has jurisdiction when you join all the
cases?
• Exclude always if damages?
• What if you are asking for moral damages?
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What about civil case arising from crime? What will happen
if the amount you are asking for is beyond the jurisdiction
of the court where it is filed?
For example, in a case of adultery pending with the MTC
and you ask for damages in the amount of P500,000. The
civil aspect is only damages, does this mean the MTC has
no jurisdiction over your civil aspect?
NO. The MTC has jurisdiction. The main cause of action is the
adultery which is tried in the MTC. The totality rule DOES NOT
APPLY since the damages sought for is only incidental to the
main action
In criminal cases, once the court acquires jurisdiction over the
person, over the subject matter and over the territory, it acquires
jurisdiction over all aspects including all incidental actions such
as the damages or the civil aspect as such the totality rule will
not apply.
MISJOINDER OF CAUSE OF ACTION
It is the failure to meet all the requisites of joinder of actions.
What is your remedy when there is a misjoinder of causes
of action?
Severe the actions. Rule 17 sec 3. If, for no justifiable cause, the
plaintiff fails to appear on the date of the presentation of his or
her evidence in chief on the complaint, or to prosecute his or her
action for an unreasonable length of time, or to comply with
these Rules or any order of the court, the complaint may be
DISMISSED upon motion of the defendant or upon the
court's own motion, without prejudice to the right of the
defendant to prosecute his or her counterclaim in the same or in
a separate action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise declared by
the court.
Why?
Because there are different causes of action.
Is there a way for the Court to just dismiss it?
The Court can dismiss the case when the parties do not comply
with the order of the court severing the misjoinder of causes of
action
DOCKET FEES
You compute the filing fees based on the amount alleged in the
complaint. In real action, it is the zonal value. So, it depends on
what kind of action. So, if the action is for the recovery of
amount, the percentage of that amount is the basis for
computing the filing fees. So, it follows that if you ask for a big
amount from the opposite parties, the filing fees that you will pay
will also be high. This is because it depends on the percentage
of the amount you are asking for.
MANCHESTER RULE of Payment of Docket Fees:
To put a stop to this irregularity, henceforth all complaints,
petitions, answers and other similar pleadings should specify the
amount of damages being prayed for not only in the body of the
pleading but also in the prayer, and said damages shall be
considered in the assessment of the filing fees in any case. Any
pleading that fails to comply with this requirement shall not be
accepted nor admitted, or shall otherwise be expunged from the
record.
The Court acquires jurisdiction over any case only upon the
payment of the prescribed docket fee. An amendment of the
complaint or similar pleading will not thereby vest
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jurisdiction in the Court, much less the payment of the
docket fee based on the amounts sought in the amended
pleading.
In Manchester, in the body of the complaint he was asking for
P78M. The clerk of court computes the docket fees based on
the prayer. To avoid paying a big amount he did not include the
amount of P78M in the prayer. What he placed in the prayer is
“in such amount as this court may award”.
NOTE: If there is no amount specifically mentioned, the docket
fees will constitute as a lien on the judgement. For example, if
the court awards you P500,000, that is where the court will
deduct its docket fees because it will be computed based on the
P500,000 award.
The Court in this case ruled that what Manchester did was a
clear manifestation of fraud or intent to defraud the government
because he is trying to escape the payment of docket fees.
Accordingly, the Court executed a strict ruling saying that “if you
do not pay docket fees upon the filing of the complaint, the
court will not exercise jurisdiction. If you do not allege an
amount in your prayer, the case will be dismissed and
stricken off the record of the Court.”
SUN LIFE RULE on Docket Fees:
The Court clarified that the Manchester rule will only apply if
there is an intent to defraud. It is not strictly applied to everything.
Because the purpose of the strict ruling in Manchester is to curb
that behavior of avoiding the payment of filing fees by means of
deceit or fraud. If such deceit or fraud is not present you apply
the following guidelines:
1. It is not simply the filing of the complaint or appropriate
initiatory pleading, but the payment of the prescribed docket
fee, that vests a trial court with jurisdiction over the subject
matter or the nature of the action. Where the filing of the
initiatory pleading is not accompanied by payment of docket
fee, the court may allow payment of the fee within a
reasonable time but in no case beyond the applicable
prescriptive or reglementary period.
If it is not immediately paid, you can pay it still within a
reasonable time. It will not be automatically dismissed as long
as you pay full amount of docket fees within a reasonable time
and before the prescriptive period to do so has lapsed.
BEFORE THE PRESCRIPTIVE PERIOD HAS LAPSED
You filed a complaint, and you know that an action in a
written contract prescribed within 10 years from the time
the right of action arises. Let us say you only have one day
before the period lapses so you filed the complaint today
but you did not yet pay docket fees will it be dismissed?
NO, because you have a reasonable time to do so
What if you paid it after 5 days?
NO, because the action has already prescribed.
Another example, if you file an appeal you need to pay for docket
fees. If you do not pay for docket fees, your appeal is not
perfected.
Let us say you received the decision today. From today you
have 15 days in which to file your appeal. You filed
tomorrow but did not pay docket fees. Is this allowed?
Yes, but you have to pay it within the 15 days period. If you do
not pay it within the 15 day period, (if you file it on the 20th day)
then your appeal was never perfected because you filed it
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beyond the period. In which case, there is nothing left for you to
appeal because decision is already final.
2. The same rule applies to permissive counterclaims, third-
party claims and similar pleadings, which shall not be
considered filed until and unless the filing fee prescribed
therefor is paid. The court may also allow payment of said
fee within a reasonable time but also in no case beyond its
applicable prescriptive or reglementary period.
If the amount that is adjudged to you is miscomputed. You will
be given a reasonable time to settle the deficiency.
3. Where the trial court acquires jurisdiction over a claim by
the filing of the appropriate pleading and payment of the
prescribed filing fee but, subsequently, the
judgment awards a claim not specified in the pleading,
or if specified the same has been left for determination
by the court, the additional filing fee therefor shall
constitute a lien on the judgment. It shall be the
responsibility of the Clerk of Court or his duly authorized
deputy to enforce said lien and assess and collect the
additional fee.
Plainly, while the payment of the prescribed docket fees is a
jurisdictional requirement, even its non-payment at the time of
filing does not automatically cause the dismissal of the case, as
long as the fees is paid within the applicable prescriptive or
reglementary period, more so when the party involved
demonstrates a willingness to abide by the rules prescribing
such payment. Thus, when insufficient filing fees were
initially paid by the plaintiffs and there was no intention to
defraud the government, the Manchester rule does not
apply.
IN RELATION TO CRIMINAL PROCEDURE:
Rule 111 of Filing Fees. In so far as the civil aspect arising from
the crime, if there is a criminal case there is a civil case deemed
instituted. You need to pay for docket fees if you are asking for
moral, nominal, temperate, exemplary damages
Everything is included EXCEPT for Actual damages. The rule is
there is no computation of docket fees in Actual Damages. This
is not absolute; the only exception is if the case involves B.P.
22. If it is B.P. 22 you need to pay for docket fees based on the
amount of the checks.
If you ask for damages without specifying the amount of
damages then the docker fees will constitute as a lien on the
judgement.
RULE 3
PARTIES TO CIVIL ACTION
PARTIES OF A CIVIL ACTION
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.
JURIDICAL PERSONS UNDER ARTICLE 44
a) The State and its political subdivision
b) Other corporations, institutions, and entities for public
interest or purpose, created by law and
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 c) Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member
Can an incapacitated person be a party in a case?
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
legal guardian or guardian ad litem.
Can a fetus be a party to a civil action?
It must be born under the conditions given by Article 41. For civil
purposes, the foetus is considered born if it is alive at the time it
is completely delivered from the mother's womb. However, if the
foetus had an intra-uterine life of less than seven months, it is
not deemed born if it dies within twenty-four hours after its
complete delivery from the maternal womb.
EFFECT OF FAILURE TO COMPLY WITH RULE 3, SEC.
If PLAINTIFF - motion to dismiss may be filed on the ground that
plaintiff has no legal capacity to sue
If DEFENDANT - may be dismissed on the ground that the
pleading states no cause of action or failure to state a cause of
action
Andaya, Ang and Kho decided that you wanted to sell face-
masks. The three paid Suarez P1M each for the delivery of
the mask. Andaya, Ang and Kho wanted to make a company
named “The Face-Mask”. After that they applied with the
SEC, but there is no registration yet. Suarez failed to deliver
the mask. Now, “The Face-Mask” company is filing a case
against Suarez, will it prosper?
NO. There is lack of capacity to sue. Because the application for
incorporation is still pending with the SEC, the corporation has
not obtained a juridical personality to sue under the company
name.
CAPACITY TO SUE v. PERSONALITY TO SUE
LACK OF CAPACITY TO LACK OF PERSONALITY
SUE TO SUE
refers to a plaintiff’s general the fact that the plaintiff is not
disability to sue, such as on the real party- in-interest.
account of minority, insanity,
incompetence, lack of
juridical personality or any
other general
disqualifications of a party.
Who has the burden to show legal capacity to sue?
Rule 8 Sec 4. 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.
What do you mean by interest?
The party has interest when benefited
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What is the REMEDY because there is lack of capacity of
sue?
The complaint must be filed by the three parties because they
are the one alleging to be the members of the group.
Can one of the party file in a representative authority for the
other parties?
Yes. But the other two parties must file an SPA.
NOTE: Rule 3, Section 15 DOES NOT apply because the rule
refers to defendants.
Rule 8, Section 4
“Capacity. — Facts showing the capacity of a party to sue or be
sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred. A
party desiring to raise an issue as to the legal existence of any
party or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which
shall include such supporting particulars as are peculiarly within
the pleader's knowledge.”
In capacity, you need to allege your capacity to sue. So if you
are filing in a representative capacity you need to establish it as
such there must be a Special Power of Attorney otherwise it is
deemed as not filed.
Who is a PLAINTIFF?
Is the claiming party and is the one who files the complaint. It
may also apply to the defendant filing the counter claim, cross
claim or third party plaintiff
Can be a defendant also be considered as a PLAINTIFF?
The term "defendant" may refer to the original defending party,
the defendant in a counterclaim, the crossdefendant, or the third
(fourth, etc.) — party defendant.
Panandigan has an issue with Villena before the National
Housing Authority, Panandigan bought a case against her
with the NHA. The NHA resolved the issue, but Panandigan
appealed it under Rule 43. The NHA wanted to intervene
because it claims to be a real-party-interest. Should NHA be
included?
NHA is NOT a real party in interest because it is the only one
who rendered the decision.
LOCUS STANDI
Personal and substantial interest in a cases such that the party
has sustained or will sustain direct injury because of the
governmental act.
Versoza v. Fernandez Ruling
In view of the allegations of the complaint, there can be no sort
of doubt as to the right of the plaintiff, as Bishop of the diocese
of Lipa, to maintain his action. As ecclesiastical superior of the
parish priest, the Bishop necessarily has an interest in the
enforcement of the trust, even apart from the duty imposed upon
his predecessor, the Archbishop of Manila in the closing
paragraph of the royal cedula, to enforce exact and punctual
performance of the trust.
A Roman Catholic Bishop having the right of supervision and
inspection over religious brotherhoods established in his
bishopric may maintain a civil action to compel the persons
comprising the directorate of such a fund in their custody, it
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being alleged that they are using it in contravention of the spirit
and purposes of the trust.
What is the rule in KALIKASAN cases?
There must be a violation of environment rules. The legal
standing is where there is an environmental violation and it
involves at least two or more cities or municipalities. It is an
indispensable requirement. So, in that instant, if it involves two
or more cities or municipalities or provinces there are numerous
parties involve that is why you can file it in a representative
capacity. The strict rules on real party interest and ordinary rules
of civil actions DO NOT apply because in Kalikasan is a special
civil action together with continuous mandamus.
Kalikasan cases. Is material damage required?
No. Strict rule in RPI is not followed. It is a special civil action.
What is indispensable here is “representative capacity”
TAX PAYER’S SUIT REQUISITES
• public funds derived from taxation are disbursed by a
political subdivision or instrumentality and in doing so
• a law is violated or some irregularity is committed; and
the petitioner is directly affected by the alleged act
Locus standi of minors in Opposa v. Factoran
Intergenerational responsibility. Their personality to sue in
behalf of the succeeding generations can only be based on
the concept of intergenerational responsibility insofar as
the right to a balanced and healthful ecology is concerned.
Put a little differently, the minors' assertion of their right to a
sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that
right for the generations to come
CLASS SUIT
When the subject matter of the controversy is one of 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 all. Any party in interest shall have the right to
intervene to protect his individual interest
All students of “X” school were informed by the school that
the basis of the grade will be the number of ube cheese
pandesal that they can bake within 24 hours. That is what
the school did. So all of the students wanted to sue the
school. Can you file a class suit?
NO. Because the students have separate contract with the
school. Each one of the students have a separate contract and
each one has a separate breach of contract with the school.
Can you bring an action against a Dead Person?
No. A deceased person does not have the capacity to be
sued and may not be made a defendant in a case.
Can you file a case against the estate or do you file it
against the executor or administrator?
You can file it against the executor and administrator because
they are the lawful representatives of the estate. That is why
under the rules when someone dies, you need to substitute the
dead person with the legal representatives, who may be the
executor or administrator.
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What about the principal, should the principal always be
joined in the case?
General Rule: The principal should always be impleaded
because it is the real party in interest.
By EXCEPTION, the case can be sued in the name of the agent
when:
An agent may sue or be sued solely in its own name and without
joining the principal when the following elements concur:
1) Agent acted in his own name during the transaction;
2) Agent acted for the benefit of an undisclosed principal;
and
3) Transaction did not involve the property of the
principal.
The reason why it is an exception because in these cases it
appears that there is no principal. So the agent becomes the real
party in interest.
RESIDENT MAMMALS LOCUS STANDI
The Court passed the landmark Rules of Procedure for
Environmental Cases, which allow for a "citizen suit," and permit
any Filipino citizen to file an action before our courts for
violations of our environmental laws.
SEC. 5. Citizen suit. — Any Filipino citizen in representation of
others, including minors or generations yet unborn, may file an
action to enforce rights or obligations under environmental laws.
Upon the filing of a citizen suit, the court shall issue an order
which shall contain a brief description of the cause of action and
the reliefs prayed for, requiring all interested parties to manifest
their interest to intervene in the case within Fifteen (15) days
from notice thereof. The plaintiff may publish the order once in a
newspaper of a general circulation in the Philippines or furnish
all affected barangays copies of said order.
The need to give the 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. It is worth noting here that the Stewards are
joined as real parties in the Petition and not just in representation
of the named cetacean species. The Stewards, Ramos and
Eisma-Osorio, having shown in their petition that there may be
possible violations of laws concerning the habitat of the Resident
Marine Mammals, are therefore declared to possess the legal
standing to file this petition.
NOTE: In environmental laws, there is an equivalent of a class
suit called as “CITIZEN’S SUIT”
SPOUSES AS PARTIES
Husband and wife shall sue or be sued jointly, except as
provided by law.
The husband obtained the loan from a bank, the marriage is
celebrated after the family code. He defaulted, but the loan
redounded to the benefit of the Family. Can the case just be
filed against the husband, or to both spouses?
NO. It shall be filed against both spouses.
Can the case be filed against the husband alone since he’s
the only one who obtained the loan?
What if the spouses have a separation of property regime,
do they need to be sued jointly?
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An instance when a spouse need not be joined in a suit involving
the other is when the litigation pertains to an exclusive property
of the spouse.
If the property is CPG, do they need to file a case together
to recover the property in CPG?
NO. It does not need to be together because the CPG is
governed by the rules of co-ownership.
For example if there are 5 co-owners, and the co-owners
lost the property and they want to recover it. Is it required
that all 5 co-owners should file the action?
NO. You only need one party from a co-ownership to recover a
property. The law provides that in case of recovery of property,
the co-owners do not need to get the consent or require a SPA.
Anyone of them may bring the action for recovery of the
property, because it is to the benefit of the co-ownership. The
same rules apply to CPG.
With regard to actions for partition, Section 1, Rule 69 of the
Rules of Court requires that all persons interested in the property
shall be joined as defendants. Thus, all the co-heirs and persons
having an interest in the property are indispensable parties; as
such, an action for partition will not lie without the joinder of the
said parties.
What if it’s Absolute Community Property Regime?
INDISPENSABLE PARTY v. NECESSARY PARTIES
INDISPENSABLE PARTY NECESSARY PARTY
Parties in interest without A necessary party is one who
whom no final determination is not indispensable but who
can be had of an action shall ought to be joined as a party
be joined either as plaintiffs if complete relief is to be
or defendants. accorded as to those already
parties, or for a complete
determination or settlement
of the claim subject of the
action.
In Criminal Case, the private complainant necessary,
Indispensable or none-of the above?
You don’t need them to get full relief. Private complainants are
deemed witnesses of the case. The real interest party in the
case is the State.
PRO-FORMA PARTIES
a nominal or pro forma party is one who is joined as a plaintiff or
defendant, not because such party has any real interest in the
subject matter or because any relief is demanded, but merely
because the technical rules of pleadings require the presence of
such party on the record
These are those who are required to be joined as co-parties in
suits as provided by the law and the rules. A pro-forma party can
either be indispensible, necessary or none of the above.
In the example of solidary debtors, in that instance, you can
recover the entire amount as against one debtor. So if you sue
a case against one debtor he is indispensable party and all the
other solidary debtors.
Rule 65, Section 5
When the petition 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
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person or persons interested in sustaining 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 in 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.
FIRST PARAGRAPH: Private respondent who is the party that
is interested in sustaining the judgement that is assailed. For
example, if you have an acquittal, the prosecution or OSG
causes the filing of the certiorari to assail the acquittal. The
PRIVATE RESPONDENT is the accused because he is
interested in sustaining the acquittal and the PUBLIC
RESPONDENT is the court that rendered the decision being
assailed.
“Unless otherwise specifically directed by the court where the
petition is pending, the public respondents shall not appear in or
file an answer 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 specifically directed by the court,
they shall not appear or participate in the proceedings therein.”
SECOND PARAGRAPH: the public respondent does not file
anything, it does not file an answer or comment because the
duty belongs in the private respondent. So the kind of party that
the public respondent is, is called a NOMINAL PARTY. It does
not do anything, but by name it has to be there.
NOTE: a nominal party in certiorari case is ALSO AN
INDISPENSABLE PARTY.
Co-owners want to partition the property, should all of them
be the parties in action for parties?
YES. All the co-owners are indispensable parties.
What if they don’t want to file, what is your remedy?
You join them as an unwilling plaintiffs.
MARINE MAMMALS: Joining the president as an unwilling
plaintiff, was this valid?
Section 10, Rule 3 of the Rules of Court provides:
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.
Under the foregoing rule, 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.
Moreover, the reason cited by the petitioners Stewards for
including former President Macapagal-Arroyo in their petition, is
not sufficiency to implead her as an unwilling co-petitioner.
Impleading the former President as an unwilling co-petitioner,
for an act she made in the performance of the functions of her
office, is contrary to the public policy against embroiling the
President in suits, "to assure the exercise of Presidential duties
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and functions free from any hindrance or distraction, considering
that being the Chief Executive of the Government is a job that,
aside from requiring all of the office holder's time, also demands
undivided attention."
Who has the duty to implead the indispensable parties?
The plaintiff.
What is the effect if there is non-joinder of indispensable
parties?
The non-joinder of indispensable parties, the proper remedy is
to implead them and not dismiss the case. At any stage of the
proceeding parties may be added on the motion of the party or
on the initiative of the tribunal concerned. If plaintiff refuses to
implead the court may dismiss the case.
Can we implead indispensable parties for the first time on
appeal?
YES. An indispensable party may be impleaded AT ANY TIME
during the proceedings. The court needs to allow it, otherwise
the judgement can never be valid.
If there is refusal to implead the indispensable parties and
the court directs for them to be impleaded, can the court
dismiss?
YES. Because of the refusal to comply with the lawful order of
the court.
Does the same apply for necessary parties?
Thus, their non-inclusion is debilitating: "the presence of
indispensable parties is a condition for the exercise of juridical
power and when an indispensable party is not before the court,
the action should be dismissed." In contrast, a necessary
party's presence is not imperative, and his or her absence
is not debilitating. Nevertheless, it is preferred that they be
included in order that relief may be complete.
Example of common carrier, what is the nature of the
liability of the tortfeasors?
Solidary liable. You can file against any of them. When the
cause of action is based on the breach of a contact of carriage
the liability of the common carrier is direct and primary since the
contract is between the carrier and passenger
What is the effect of a DEATH OF A PARTY ON THE
PENDING CASE
Whenever a party to a pending action dies, and the claim is not
thereby extinguished,
The heirs of the deceased may be allowed to be substituted for
the deceased, without requiring the appointment of an executor
or administrator and the court may appoint a guardian ad litem
for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of
thirty (30) days from notice.
TWO FOLD DUTY OF THE COUNSEL UPON DEATH OF
PARTIES
1. to inform the court within thirty (30) days after such
death of the fact thereof, and
2. to give the name and address of his legal
representative or representatives.
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If you do not inform the court, will this cause the dismissal
of the case?
NO. It will only be a ground for administrative sanction against
the counsel.
NOTE: When there is someone who dies, there will be
settlement proceedings/ settlement of estate. If there is a will left
behind, we call it testate, if there is no will it is called intestate.
In BOTH instances, the court will appoint someone who will
represent the estate and take charge of the administration of the
estate of the diseased.
If there is no person named in the will, you call that person as
an administrator/administratrix that will be appointed by the
court.
If there is someone named in the will, the person will be called
an executor/executrix.
It should be executor or administrator that will be
SUBSTITUTED. However, it is possible that you have already
instituted your settlement of estate case but there is no
appointment of representative. In this case the Supreme Court
recognized that if the settlement of estate has already been
filed but there is no administrator/executor named yet, the
heirs can he used as the representative of the deceased.
This is because death opens the succession so by virtue of
death, they can already be the representatives.
However, if there is no representative appointed, the Rules
provide that the opposing party has to be the one to appoint the
executor or administrator at his costs. It means that if there is no
case filed for the settlement of estate, the creditor has to file the
case. The filing of the case is the only way an executor or
administrator will be appointed.
Is this allowed?
YES, because the creditor has an interest and a legal standing
in the estate.
CONTRACTUAL MONETARY CLAIMS UNDER RULE 3
If the opposing party untimely dies, you cannot claim the amount
in the same case. You need to have a settlement of estate and
that is where you will bring your claim. The claim of the party
must he against the estate of the deceased.
If you do not know the name of the defendant, can you not
file the case?
You CAN file a case. 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.
ALTERNATIVE DEFENDANTS
Where the plaintiff is uncertain 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.
ENTITY WITHOUT JURIDICAL PERSONALITY (SEC. 15)
When two or more persons not organized as an entity with
juridical personality enter into a transaction, they may be sued
under the name by which they are generally or commonly
known.
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In the answer of such defendant, the names and addresses of
the persons composing said entity must all be revealed.
Once there is a transfer of interest is it necessary that we
substitute the transferee?
It is NOT mandatory because the rules make use of the word
“may”. So, it is only discretionary upon the court whether or not
to make a transfer.
INDIGENT PARTY
If it is satisfied that the party is one who has no money or
property sufficient and available for food, shelter and basic
necessities for himself and his family.
Exempt from payment
• Docket Fees
• Other lawful fees
• Transcript of stenographic notes
When will the SolGen be given notice on cases? (Sec. 22)
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.
Is Rule 4 related to venue subject to exceptions?
• Where a specific rule or law provides otherwise
• Where the parties have validly agreed in writing before the
filing of the action on the exclusive venue thereof.
Panandigan loaned money to Suarez. Panandigan is from
Quezon City while Suarez is from Manila. In your loan
contract there is a provision that if an action arises from the
case it will be filed in Makati? What does that mean?
This does not vest exclusive jurisdiction over the case. For there
to be exclusive jurisdiction, the parties must use words that
expressly provides for such exclusivity. In this case, the Makati
Court is only an added court that can exercise jurisdiction over
the case. The normal rules apply and the Makati Court can be
the venue of the case.
Can a case be dismissed on the ground of improper venue?
YES. Without prejudice.
RULE 6
KINDS OF PLEADINGS
What is a PLEADING?
Pleadings are the written statements of the respective claims
and defenses of the parties submitted to the court for
appropriate judgment.
What is a MOTION?
A motion is an application for relief other than by a pleading.
(Section 1, Rule 15)
What are the Pleadings allowed under Ordinary Rules?
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 or her.
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An answer may be responded to by a reply only if the defending
party attaches an actionable document to the answer. (Section
2, Rule 6)
What is an ACTIONABLE DOCUMENT?
The action or defense is based on a written instrument.
How are you going to sufficiently ALLEGE an actionable
document in your pleading?
Rule 8, Section 7. Whenever an action or defense is based upon
a written instrument or document, the substance of such
instrument or document shall be set forth in the pleading, and
the original or a copy thereof shall be attached to the pleading
as an exhibit, which shall be deemed to be a part of the pleading.
Does it have to be an original copy?
It may be either be an Original or a Copy.
Give an example of an actionable document in which your
ACTION depends on?
Collection of money based on promissory note
Give an example of an actionable document in which your
DEFENSE depends on?
A receipt of Dacion En Pago which showed the original contract
was extinguished by a novation. In that instance your dacion en
pago is your actionable document and you need to allege it in
your answer and it needs to be attached.
Actionable documents in Ejectment Case?
Contract of Lease
How do you contest an actionable document?
1. By specific denial under oath
2. By setting forth what is claimed to be the facts.
Is it enough to say “hindi kaya yan totoo yan” under oat?
NO. Because that is a general denial. Because you did not
specifically deny.
What is the effect if you make a GENERAL DENIAL?
The effect is you admit the genuineness and due execution of
the document.
Is genuineness the same with due execution?
NO.
GENUINENESS means the document is:
• The document is not Spurious, counterfeit, or of
different import on its face from the one executed by
the party
• That the party whose signature it bears has Signed it
• That at the time it was signed, it was in words and
figures exactly as set out in the pleadings.
When you say it is genuine it is what it purports to be.
For example, if I say this is the sale contract between us. That
sale contract is genuine. If you do not specifically deny that, you
admit that it is the sale contract that you entered into. That the
agreement between the parties is agreement that is in words
and figures in this actionable document. It is what it purports to
be.
If It purports to be a deed of sale between the plaintiff and
defendant, if you do not specifically deny that under oath. You
admit that it is the deed of sale that was entered into by the
plaintiff and defendant.
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DUE EXECUTION:
• The document was signed voluntarily and knowingly by
the party whose signature appears thereon;
• That if signed by somebody else such representative
had authority to do so,
• The documents are duly delivered and
• The formalities were complied with.
The signature appearing thereon is indeed signed by the same
parties or pursuant to his property.
NOTE is that we need to specifically deny the actionable
document. It has to be done so under oath so if the complaint is
based on actionable document your Answer must have specific
denials of the actionable document and it is under oath.
What do you call a pleading under oath?
Verified Pleading
The rule is you need to specifically deny the actionable
document under oath otherwise you are deemed to have
admitted its genuineness and due execution? What is the
further effect of your failure to specifically deny?
The Court can render judgement on the pleadings.
When is JUDGEMENT OF PLEADINGS proper?
Section 1, Rule 34. Where an answer fails to tender an issue, or
otherwise admits the material allegations of the adverse party's
pleading, the court may, on motion of that party, direct judgment
on such pleading. However, in actions for declaration of nullity
or annulment of marriage or for legal separation, the material
facts alleged in the complaint shall always be proved.
It means for example I filed a case against Ms. Ang, my
collection for a sum of money case is based on an actionable
document which is a promissory note executed by Ms. Ang. If
you want to refute, Ms. Ang must specifically deny it.
How will she specifically deny it?
It depends on her defense. She can say that the signature is a
forgery, or that she doesn’t know the person, or haven’t met her
or her defense could that “yes I have a loan, but it was already
paid”. So you attach another actionable document as part of
your defense to prove that the obligation has been distinguished.
You only need to specifically deny under oath.
But if Mr. Suarez Filed answer saying “di totoo yan”. In that
instance that is only a GENERAL DENIAL. When you make a
specific denial, it must be as to the facts. You cannot just say a
general “no”.
The effect of a GENERAL DENIAL: she admits not only the
pleading itself, all allegations, and genuineness and due
execution of the document. So, it means she is admitting the
claim that she owes the money, that the proof that she owes the
money is the promissory, and that is here signature thereon.
So, if she admits everything THERE IS NO MORE ISSUE. The
court can render judgements on the pleadings alone. If an action
fails to tender an issue it means there is nothing left to be tried.
You will only have trial if there is an issue to be resolved.
Rule 129, Section 4
“Judicial Admissions. — An admission, oral or written, made by
the party in the course of the proceedings in the same case,
does not require proof. The admission may be contradicted only
by showing that it was made through palpable mistake or that
the imputed admission was not, in fact, made.”
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What is the effect?
It does not require proof. So when you make a general denial in
your Answer, the effect is you did not specifically deny it. You
admit, or have deemed to be admitted. It may be made orally or
in writing and in the course of the proceedings.
When a judicial admission is made you do not need to go to trial
again. That is why you can have judgement in pleadings.
In relation to Criminal Procedure: Rule 118 during pre-trial,
the parties can make stipulations of facts. When they make
stipulations of facts during the pre-trial they agree on the facts
of the case. It means that once they have undisputed facts,
those are judicial admissions. It will lessen the trial.
For example: they agree that the victim “Ms. X”. If they agree
that the name of the victims is “Ms. X” that is a judicial admission
already by BOTH parties. It means they do not need to produce
evidence that the name of the victim is “Ms. X”. If there is NO
JUDICIAL ADMISSION they would still have to present a birth
certificate to prove her name.
Another example: the case is for Robbery and you want to say
that the amount stolen is P500k. You are not admitting that you
were the one who stole it, but you want to stipulate is P500k. If
there is a judicial admission you do not need to prove the amount
and shortens the trial.
What is a COMPLAINT?
The complaint is the pleading alleging the plaintiff's or claiming
party's cause or causes of action.
What should be alleged?
The names and residences of the plaintiff and defendant must
be stated in the complaint.
What is an ANSWER?
An answer is a pleading in which a defending party sets forth his
or her defenses.
An answer can be either affirmative or negative. What is a
NEGATIVE DEFENSE?
A negative defense is the specific denial of the material fact or
facts alleged in the pleading of the claimant essential to his or
her cause or causes of action.
Specific Denial but you must also invoke the facts of which you
base your specific denial on.
Example: “Hindi mo ako masisingil ng pera kasi hindi ako
umutang sayo kasi kapangalan ko lang yung Juan Dela Cruz na
umutang sayo, pero Juan Dela Cruz din pangalan ko”
What is an AFFIRMATIVE DEFENSE?
An affirmative defense is an allegation of a new matter which,
while hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or bar
recovery by him or her.
In an affirmative defense you are not making a judicial admission
you are making a hypothetical admission.
Example: “Assuming may utang talaga ako sayo, I still won’t be
liable because it has already been paid or that the action has
prescribed”
29
“Assuming may utang ako sayo pinatawad mo na ako” –
Avoidance.
Affirmative defenses have two paragraphs: What are
affirmative defenses on Paragraph 1?
An affirmative defense is an allegation of a new matter which,
while hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or bar
recovery by him or her. The affirmative defenses include fraud,
statute of limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in bankruptcy, and
any other matter by way of confession and avoidance.
What is an actionable document? Is a sale invoice an
actionable document?
Sales document is not an actionable document because it is
merely evidentiary but it does not foreclose the probability of the
other party to be liable. So, the Supreme Court held that the
sales invoice is just a little statement of the nature, quantity or
costs of the thing sold it is not considered as a billed sale, not a
proof of the sales that would give rise to the cause of action.
THIRD PARTY COMPLAINT
A third (fourth, etc.)-party complaint is a claim that a defending
party may, with leave of court, file against a person not a party
to the action, called the third (fourth, etc.)-party defendant for
contribution, indemnity, subrogation or any other relief, in
respect of his or her opponent's claim.
How is it different from an instance where you file a
counterclaim and where the exception allows or you to
implead a party through a counter claim?
In a third-party complaint, the pleading itself is against the third
person however in a counterclaimed pleading is not directed to
the third person but directed to the original plaintiff.
GENUINENESS AND DUE EXECUTION
Genuineness is what it purports to be. The words, figures and
the terms in that document is what agreed upon by the parties.
Due Execution refers to it being signed by the person.
The reason why we have an admission if you do not specifically
deny it at an actionable document because of the principle of the
judicial admission under Rule 129, Section 4 it being admitted.
How will you DENY a complaint based on an actionable
document?
Response is an answer.
How do you DENY an actionable document in an ANSWER?
By Specific Denial of the defenses set forth in the Answer.
What do you think should we contest? Should we contest
the defenses?
When an action or defense is founded upon a written instrument,
or attached to the corresponding pleading as provided in the
preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party,
under oath specifically denies them, and sets forth what he or
she claims to be the facts; but the requirement of an oath does
not apply when the adverse party does not appear to be a party
to the instrument or when compliance with an order for an
inspection of the original instrument is refused. (Section 10, Rule
8)
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In order to contest, the claims of the other party, an answer must
be filed. In the answer you must specify the material allegations
or facts that you do not admit and set forth the substance upon
which you relied your denial on.
SPECIFIC DENIAL
Specifically, denial each material allegations
KINDS OF SPECIFIC DENIAL
1) ABSOLUTE Denial – specifies the material allegations of
fact the truth of which he does not admit, and, whenever
practicable, shall set forth the substance of the matters
upon which he relies to support his denial.
2) PARTIAL Denial – where a defendant desires to deny only
a part of an averment, he shall specify so much of it s true
and material and shall deny the remainder.
3) Denial by DISAVOWAL OF KNOWDLEDGE – where a
defendant is without knowledge or information sufficient to
form a belief as to the truth of a material averment made to
the complaint, he or she shall so state, and this shall have
the effect of a denial.
(Section 10, Rule 8)
How do you make a denial by disavowal of knowledge?
It must also be denied specifically and under oath.
When the defendant alleges having no knowledge or information
sufficient to form a belief as to the truth of the allegations of the
other party but such matters are plainly and necessarily within
the defendant’s knowledge, a claim of “ignorance of lack of
information” will not be considered as a specific denial.
Do you need to distinguish denial for lack of knowledge and
which one you are specifically denying by negative
defenses?
YES. You need to let the party know which one you are denying
for lack of knowledge and which one you are denying by
asserting facts in which you relying for the denial. You need to
distinguish so that they know what needs to be refuted during
trial.
What if you specifically deny some but you do not
specifically deny the rest, are you deemed to have admitted
the entire pleading?
NO. This would amount to partial denial.
NOTE: If you admit it, which is a general admission and
specifically denied. The actionable document, the effect is you
are admitting the need to execution.
If there is an admission of the allegations in the pleading,
would there still be an issue?
NO. There are no more issues in case of admission of the
allegations of the pleading.
The answer admitted the complaint which is a judicial admission.
So, there is no issue when there is nothing left to be tried and
there is an issue and there is something left to be tried when
there is dispute as to the facts. If there is no dispute to the facts,
meaning you actually admitted, there then there is no need to try
or no need to present evidence. the court can render
judgement.
30
As a rule, we need to raise all defenses. What is the effect if
you fail to raise it?
If you fail to raise it, the court would not allow admission of other
evidences. It would constitute a waiver of all those defenses.
An exception to this rule is when you do not raise it but you
presented it as evidence and there was no objection to
presentation of such evidence. In this instance you can have an
amendment of the pleading.
ko naman inaangkin yung property mo” or “I never said I was the
owner of the property.”
In that instance she is not denying that she is unlawfully
possessing because her defense is with respect to the title of
the property. That is a negative pregnant because therefore she
is effectively admitting it.
Question: “Pangit yung baby ko no?”
Answer: “Ay ang chubby naman, ang laki ng cheeks”

Reina, has a parcel of land. I’m trying to recover the parcel of

NON-WAIVABLE DEFENSES UNDER RULE 9, SEC. 1
land from her who is unlawfully possessing the land. Her answer
“when it appears from the pleadings or the evidence on record
is that “I am not claiming title to the land”. The answer is not as
that the court has no jurisdiction over the subject matter, that
to the possession, she is denying “di ko sinasabi ako may ari”
there is another action pending between the same parties for the
but the issue is not title, but the unlawful possession of the land,
same cause, or that the action is barred by a prior judgment or
negative pregnant, in effect she admitted that she is unlawfully
by statute of limitations, the court shall dismiss the claim.”
possessing the land
EXCEPTIONS
• Statute of Limitations COUNTERCLAIM
Any claim which a defending party may have against an
• Res Judicata
opposing party.
• Lack of fixation of the subject matter
If the original defendant makes a claim against the original
As such, everything in the complaint must be specifically
plaintiff. If you have a third party complaint, can the third
denied. Otherwise, it will be an admission. Is there an
party defendant make a counter claim?
exception to this rule? When you did not specifically deny
Yes he may do so to any of the two original parties.
but will not amount to admission?
Material averments in a pleading asserting a claim or claims,
KINDS OF COUNTERCLAIM
other than those as to the amount of unliquidated damages,
• Compulsory Counter claim
shall be deemed admitted when not specifically denied. (Section
11, Rule 8) • Permissive Counterclaim

Unliquidated Damages. When it is an to an unliquidated Distinguish Permissive and compulsory

damages you need to make a specific denial under oath, if it COMPULSORY PERMISSIVE
involves an actionable document As to the basis
It arises out of or is It does not arise out of or is
UNLESS you are NOT A PARTY to that actionable document. connected with the not necessarily connected
The reason for this is how can you deny something if you have transaction or occurrence with the subject matter of the
no knowledge of it. Therefore, if you are not a party to you must that is the subject matter of opposing party’s claim. It is
the opposing party’s claim, essentially an independent
specifically deny it but it does not need to be under oath.
falls within the jurisdiction of claim that may be filed
the court and does not separately in another case.
Another instance is if you requested for the inspection of the require for its adjudication
original but only attached a copy of the actionable document. the presence of third parties
The Court then directed them to produce the original but they over whom the court cannot
refuse, in this instance you need to make a specific denial but it acquire jurisdiction
does not need to be under oath. The exception is not to both As to Effect of FAILURE to Set up a counterclaim
specific denial and oath but only as to the oath. Specific denial It is barred if not set up in the It is NOT barred even if not
must always be present. action. This is also known as set up in an action. This is
a “set-off” also known as “recoupment”
What is a NEGATIVE PREGNANT? As to the KIND of pleading
A denial in the form of a negative pregnant is an ambiguous NOT an initiatory pleading Considered as an initiatory
pleading, since it cannot be ascertained whether it is the fact or pleading which is separate
only the qualification that is intended to be denied from that of the original
pleading.
Example of Negative Pregnant? As to Necessity of a Certification against Forum
Like you told your boyfriend “lumabas ka nanaman kagabi Shopping
kasama yung mga babae mo” but he replied “hindi ako umuwing
Does not require the Should be accompanied by a
lasing kagabi”. That is an negative pregnant he did not really
certificate mentioned certification against forum
deny.
because it is not initiatory in shopping and whenever
character. required by law a certificate
I am an owner of a parcel of land. Ms. Andaya is occupying that
to file an action by the
land. I bring an action against her for accion publiciana so I can
Lupong Tagapamayapa
recover possession of my land. So I allege that Ms. Andaya is
As to the effect of failure to Answer
unlawfully possessing my land. But what Ms. Andaya replies “di
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 Failure is not a cause for Must be answered by the
default declaration party against whom it is
interposed otherwise he may
be declared in default as to
the counterclaim.
As to the payment of docket fees
No need to pay docket fees MUST pay docket fees
It is like a complaint because it is your claim against the
other party or the original plaintiff?
YES
Do we need to pay docket fees on compulsory
counterclaim?
NO
Compulsory Counterclaim deemed initiatory?
NO
FOUR TESTS OF DETERMINING COMPULSORY OR
PERMISSIVE COUNTERCLAIMS
• Are the issues of fact and law raised by the claim and the
counterclaim largely the same?
• Would res judicata bar a subsequent suit on defendant’s
claims, absent the compulsory counterclaim rule?
• Will substantially the same evidence supports or refute the
plaintiff’s claim as well as the defendant’s counterclaim?
• Is there any logical relation between the claim and the
counterclaim?
A positive answer to all would indicate that the counterclaim is
compulsory. Otherwise, it is permissive.
Do we need to pay docket fees in permissive counterclaim?
Yes. A permissive counterclaim is not necessarily connected to
the subject matter of the opposing parties. You should file docket
fees in a permissive counterclaim, because your permissive
counterclaim can survive without that original case, because it
does not arise from the same matter there is no logical
connection.
If you file a compulsory counterclaim after there has been a
judgement on the present case, will it prosper?
You have to file during the present case otherwise it will be
barred by res judicata.
You have to file the compulsory counterclaim which is connected
to your original claims otherwise you will be splitting an action
and it also a waiver on your part if you do not place it there so it
will be barred by res judicata.
If it is a permissive counterclaim by the notion of its name you
can file it at a later time and it will not be barred by res judicata
For compulsory counterclaim you should pay docket fees but if
it is a permissive counterclaim you have to pay docket fees in
lieu of a complaint for forum shopping.
If it's a compulsory counterclaim you need to raise it in that case
if you do not raise it in that case it is barred by your subsequent
judgment
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If you do not raise permissive counterclaim it's ok it can be the
subject of a separate case therefore you are your permissive
counterclaim is like separate from your original case it can stand
alone therefore if it's permissive counterclaim you need to pay
your docket fees and file your certification of non forum
shopping which is necessary for initiatory pleadings the same
rule does not apply in your permissive counterclaim.
CONCEPT OF ACTIONABLE DOCUMENT
An actionable document is a document that is the basis of your
complaint or of your defense.
If your action is a contract of lease then your actionable
document is the contract of lease. If you have a tenant and you
want him to vacate the premises the actionable document is
your lease contract and your demand to vacate that was
received by defendant that is your basis of cause of action.
If in the same instance, the parties executed another contract for
the extension of the same lease. So in order to refute the cause
of action of the plaintiff, the defendant can attach in his defense
the subsequent contract of lease which becomes the actionable
document of the defendant.
ATTACHMENT OF ACTIONABLE DOCUMENT & SPECIFIC
DENIAL
At the same time the concept of attaching an actionable
document in the answer is different from specifically denying it.
So, in addition to attaching an actionable document you need to
specifically say no it's not true that the lease has expired.
So, what is the basis of fact of your denial?
The basis of fact of the denial is that a new lease has been
executed between the parties. That is how you make a specific
denial. If you say “that's not true or is not true it's expired” that's
just a general denial. The rules provide that when you make
a specific denial you need to allege the facts of which to
base your specific denial on.
ANSWER & REPLY
ANSWER REPLY
An answer is a pleading in A reply is a pleading, the
which a defending party set office or function of which is
forth his or her defense to deny, or allege facts in
(Section 3, Rule 6) denial or avoidance of a new
matters alleged in, or relating
to, said actionable
document. (Section 10,
paragraph 2, Rule 6)
NOTE: If you have a complaint the response is an answer then
you do not file any more a reply because the rules provide that
the allegations in your answer are deemed controverted. In
other words, we don't need to file reply because it's already
automatic such that whatever is in your answer it is already
deemed denied.
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EXCEPTION:
When your answer attaches an actionable document, if your
answer attaches an actionable document it is not deemed
automatically denied.
Is it MANDATORY for you to file a reply?
If you want to waive your right, then it is possible not to make
reply. But if you want to deny it you need to file your reply. A
reply may only be filed if the answer is based on actionable
document. (Section 10, Rule 6)
If you have a reply you want to post the actionable document it
should be under oath specifically denying.
Example # 1: In a complaint for ejectment on the basis of a lease
contract. If in the answer what is stated is that “that’s not true
because we have agreed on a new lease contract”. The lease
contract will then be the actionable document attached to the
answer.
In this case, you need to specifically deny the contract of lease
in a reply. In the reply, you can say as a specific denial that “it
is not true that there is an extension of the lease because that
signature in the extension of the lease is a forgery. I could not
have signed that because at the time that it was being executed
was outside the country which can be proven by my passport
and tickets” to cut the date here is my passport tickets showing
i was outside the country. That is your specific denial
Example # 2: What if your actionable document is for a sum of
money in your complaint so you demanded for a complaint for
sum of money and the answers as sasagot siya wala nang
complaint for sum of money extinguish na yan kasi meron na
tayo new agreement. In the complaint for the sum of money, the
actionable document attached is the original contract, however
in the answer of the defendant he attaches the alleged new
contract between them as an actionable document and alleges
that there was dacion en pago. However, the attached contract
is not the same as the contract contract attached by the plaintiff.
In that instance plaintiff has the claims it's not just a denial. So,
one hand, defendant says attaches as an actionable document
a contract claiming that there was dacion en pago. On the other
hand, plaintiff denies that there was dacion en pago and states
that the actionable document attached in the reply was for a
previous transaction executed many years ago between the
parties. But he also claims that they did execute another dacion
en pago for the transaction but it was breached so it was
rescinded.
In this case, to specifically deny the dacion en pago attached to
the answer there must be a reply filed that specifically denies
the dacion en pago attached to the answer.
So what if you want to specifically deny under oath that that is
not the dacion en pago that we entered into for that contract,
because what was presented was that used in a previous
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contract. But if you want to also mention that there was dacion
en pago for the present transaction but was rescinded.
If in the reply or in the answer it raises the allegations that
makes the original plaintiff want to interpose any claims
arising out of the new matters so alleged such that it is not
just a matter of refuting it but that of raising a new claim. In
this case the new claim is that the dacion en pago is
extinguished that is why your obligation remains the same.
What will happen?
The rules provide the proper remedy is for amendment of the
complaint or supplemental complaint as the case may be. So it's
not just a matter of denying but it's a matter of raising new
matters or new allegations and then your remedy is to amend by
supplemental complaint because you don't only then deny but
you raise new allegations.
So let us assume that in the dacion en pago you attach the
real dacion en pago which was rescinded, so again the
defense in the reply is based on an actionable document
how do you refute it?
Then that is the time you file a REJOINDER under oath.
In summary the process is that:
Plaintiff files a complaint
Defendant files an Answer
Plaintiff files a reply
Defendant may file a rejoinder
NOTE: the reply and the rejoinder will only be filed only if it is to
answer an actionable document. If there is no actionable
document you cannot file a file a reply or rejoinder.
CROSS-CLAIM
A cross-claim is any claim by one party against a co-party arising
out of the transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein. Such
crossclaim may cover all or part of the original claim.
COUNTER CROSS-CLAIM
A counterclaim may be asserted against an original counter-
claimant.
Can it be that you will file a cross claim to a co-plaintiff on
the basis of the counterclaim of the defendant?
A cross-claim may also be filed against an original
crossclaimant.
What are the requisites for there to be a third-party
complaint fourth party or fifth party complaint?
It must only be on those grounds wherein we can have a third-
party complaint. In the absence of which, we cannot have a
third-party complaint.
Under the rules, when you file a motion for leave you already
need to attach the pleading that you are seeking leave from the
court. So, like motion for leave to admit the attached third-party
33
complaint. You cannot ask motion of leave without attaching
what you're asking it of.
Examples:
• Motion to leave to intervene, your complaint in
intervention should be attached
• Motion to leave for demurrer of evidence, you should
attach your demurrer to evidence.
THIRD PARTY COMPLAINT
A third (fourth, etc.)-party complaint is a claim that a defending
party may, with leave of court, file against a person not a party
to the action, called the third (fourth, etc.)-party defendant for
contribution, indemnity, subrogation or any other relief, in
respect of his or her opponent's claim.
When is the instance where the court will not grant leave for
filing of a third-party complaint?
“The third (fourth, etc.)-party complaint shall be denied
admission, and the court shall require the defendant to institute
a separate action, where: (a) the third (fourth, etc.)-party
defendant cannot be located within thirty (30) calendar days
from the grant of such leave; (b) matters extraneous to the issue
in the principal case are raised; or (c) the effect would be to
introduce a new and separate controversy into the action.”
(Section 11, par. 2, Rule 6)
A third-party complaint does not refer to the same transaction or
arising party to the same transaction of the subject matter of the
original complaint. There are two instances when the court will
not grant leave for filing a third complaint:
1.) If there are matters raised with extraneous issues to the
principal issue.
2.) When it requires a introduction of a new and separate
controversy and action.
However, once leave is granted it will be dismissed again if they
cannot acquire jurisdiction over the person of the defendant
Ricardo sold a parcel of land to Mico with a clean title. Later
on Mico sold the parcel of land to Krystel. Subsequently,
Mico received a summons in a complaint filed by Krystel for
breach of warranty against eviction because what
happened was Krystel had a pending ejectment case filed
by Isabelle. In return, Krystel files a complaint against Mico.
Mico wants to refute the claim. What is the proper remedy?
Does Mico file a counterclaim with Krystel to implead
Ricardo?
The general rule is the Mico cannot file a counter claim.
However, Section 12 makes an exception that you can bring
parties in your counterclaim if the court cannot determine
that a counterclaim without bringing in a new party. What is
the Remedy?
Mico can file a third-party complaint against Ricardo.
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Can Mico compel Krystel to implead Ricardo?
NO. You cannot compel the plaintiff. So, you just file a third party
complaint against Ricardo.
In another case, Mico applied with “X” company which is
engaged in a dealership of cars. Mico applied to be a dealer
so to apply as a dealer Mico filed an application to the
company. X company said that they will process it.
In that instance Mico applied for do dealership. Pending
application, the company said “OK i will give you the cars
so that you can already have some of the cars that you can
sell later on.” Later on the company said to Mico that “It's
a prank. you're not accepted in the company” so Mico got
angry because the company and their officer, Rania, told
Mico that as a condition to process the application he needs
to buy parcel of land which he did buy.
So Mico want to charge them rent and refuses to return the
cars until he is paid for the rent, for the cars, and for
damages. X company filed a complaint against Mico to
recover the cars. But Rania who told Mico to buy the land
was not impleaded. What is the remedy?
According to the Supreme Court this is the instance when you
can file a counterclaim and through the counterclaim implead
another person
Because it is the company through the officer who told Mico that
he needs to buy a land so he will allege that the company told
me through your officer for me to buy land. So Mico can file a
counterclaim mentioning that officer and in that instance the
court can implead on the basis of a counterclaim.
But the Supreme Court also ruled in case that it is denied or
when you make a counterclaim but the court does not allow the
impleading THEN your remedy is a third-party complaint.
So, you can try to make a counterclaim impleading the
officer but it is DISCRETIONARY on the Court and if it is
DENIED then you file a third-party complaint.
You can also file an answer to the claims so you can have an
answer to a third-party complaint, or an answer to a counter-
claim, answer to a cross claim or a permissive claim and etc.
RULE 7
PARTS AND CONTENTS OF A PLEADING
CAPTION
The caption sets forth the name of the court, the title of the
action, and the docket number if assigned. (Section 1, Rule 7)
What if there are 100 plaintiff v. 100 defendants in the first
time you file your complaint, do you need to name all the
parties? All the 100 plaintiffs and 100 defendants?
Yes, you need to by virtue of Section 1. The rules provide that if
it's the first time you have to enumerate all the names of the
parties but for the next pleadings it will be sufficient to name the
first party and use “et al”.
34
“The title of the action indicates the names of the parties. They
shall all be named in the original complaint or petition; but in
subsequent pleadings, it shall be sufficient if the name of the first
party on each side be stated with an appropriate indication when
there are other parties. Their respective participation in the case
shall be indicated.” (Section 1, Rule 7)
How do you call the participations of the parties?
Plaintiffs and Defendant.
• Professional Tax Receipt Number (PTR)
• Current IBP Official Receipt Number indicating its date
of issues
• MCLE Certification
Is it mandatory that both the lawyer and the party to sign?
NO. Every pleading and other submissions to the court must be
signed by the party or counsel representing him or her. It should
be either the party or the counsel.

In some instance they refer to it as petitioner or defendant, or

It shall include the full name, the signature, the address of the
then there is a third party you place third party-plaintiff or third-
party that is not the post office, the signature of the lawyer, the
party defendant or plaintiff-in-intervention and etc.
address of the lawyer, he's professional tax receipt number,
roll number, the roll number is the number in the entry of the roll
BODY
attorney.
The body of the pleading sets forth its designation, the
allegations of the party's claims or defenses, the relief prayed
SIGNATURE OF LAWYER v. SIGNATURE OF THE
for, and the date of the pleading. (Section 2, Rule 7)
CERTIFICATION
The signature of the lawyer as distinguished to a signature that
The body shall state the cause of action and the answer shall
is the certification. The signature details of the lawyer is what
also include the answer to the cause of action.
would show that the one signing is a lawyer in good standing.

When two or more causes of action are joined, the statement of

The pleading requires the full name so that the name should be
the first shall be prefaced by the words "first cause of action," of
the same data that would appear in the roll of attorneys. In the
the second by "second cause of action," and so on for the others.
same way the signature in your roll of attorneys should be the
(Section 2 (b), Rule 7)
same signature you use.

How do you make a specific allegation the relief?

The name at you use in the roll is the same name that you should
The pleading shall specify the relief sought, but it may add a
use as a lawyer. Such that if you’re a woman who got married,
general prayer for such further or other relief as may be deemed
and you decide to take your husband’s name, you need file a
just or equitable. (Section 2 (c), Rule 7)
petition to the Supreme Court if you want to change your name.

The allegation of relief need not be specific a general prayer is

LAWYER IN GOOD STANDING
enough provided it would be warranted by the allegations and
To be a lawyer in good standing you need to pay your IBP dues.
rules of the complaint
Unless you apply for the lifetime membership with IBP.

You need to allege the prayer the specific relief that you are
But for others you need to pay annually, and everytime you pay
seeking that's why if you remember in the Manchester case that
annually, the receipt of your payment that is your IBP number,
we talked about in the body he was framed from the 78 million
receipt number and the date.
dapat in the relief he should specify also 78 million that he is
asking for yung nag circumvent and damages and filing fees
Professional Tax Return Number it is the professional tax.
Every January before you sign a pleading, once the New Year
So everything that you are asking for must be alleged in your
arrives, you need to pay your IBP dues and your PTR so that
prayer then you can add a general denial such that if you did not
when you sign your pleading it is updated otherwise it is not
ask for something specifically but you can add a general denial
updated.
or such other as may the court may be just and equitable
Then you need to also include your MCLE compliance number
Are all pleadings supposed to be dated?
again that is showing that you are a lawyer in good standing if
YES. Every pleading shall be dated. (Section 2 (d), Rule 7)
you are exempted from MCLE what you can put is your
exemption number.
What are the details of the lawyer which should be included
in the pleading?
Additionally, the rules require that you need to put your email
The lawyer should include:
address, the email address must be included therein.
• Full name
• Address of the party that is not the post office In the old rules, a circular provides that if it is not completed it is
• Address of the lawyer deemed an unsigned pleading. HOWEVER, subsequently the
• Signature of the lawyer court came out with the subsequent circular changing the rule
• Counsel’s roll number.

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that of the “unsigned pleading” and changed it to an
administrative liability.
What should the signature portion provide or what would it
indicate?
The signature of counsel constitutes a certificate by him or her
that he or she has read the pleading and document; that to the
best of his or her knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:
(1) It is not being presented for any improper purpose,
such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation;
(2) The claims, defenses, and other legal contentions are
warranted by existing law or jurisprudence, or by a non-
frivolous argument for extending, modifying, or
reversing existing jurisprudence;
(3) The factual contentions have evidentiary support or, if
specifically, so identified, will likely have evidentiary
support after availment of the modes of discovery
under these rules; and
(4) The denials of factual contentions are warranted on the
evidence or, if specifically, so identified, are reasonably
based on belief or a lack of information.
The reason for the rule is that there are times when lawyers
know they will lose but they will file it for harassment or so that
the other party will incur unnecessary cause. So, to deter this
they will put a burden of the lawyer.
CONSEQUENCE OF VIOLATION
Administrative liability which may also extend to the partner and
law firm. The sanction may be monetary and non-monetary. If it
is monetary, it cannot be passed to the lawyer
“If the court determines, on motion or motu proprio and after
notice and hearing, that this rule has been violated, it may
impose an appropriate sanction or refer such violation to the
proper office for disciplinary action, on any attorney, law firm, or
party that violated the rule, or is responsible for the violation.
Absent exceptional circumstances, a law firm shall be held
jointly and severally liable for a violation committed by its
partner, associate, or employee. The sanction may include, but
shall not be limited to, non-monetary directive or sanction; an
order to pay a penalty in court; or, if imposed on motion and
warranted for effective deterrence, an order directing payment
to the movant of part or all of the reasonable attorney's fees and
other expenses directly resulting from the violation, including
attorney's fees for the filing of the motion for sanction. The
lawyer or law firm cannot pass on the monetary penalty to the
client.” (Section 3 (c), Rule 7)
Is It always the entire law firm will be liable?
When their exceptional circumstances so. For example, if there
is an associate who is mad at you and he violates all the rules
to make the firm liable the firm cannot be held liable.
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VERIFICATION
A pleading is verified by an affidavit of an affiant duly authorized
to sign said verification.
Should under oath?
It should be under oath.
When you say it is verified it is an affidavit when it is verified it is
under oath. That is automatic. That is why in summary
procedure, all pleadings should be verified it means everything
should be under oath.
ALLEGATIONS IN A VERIFICATION
The authorization of the affiant to act on behalf of a party,
whether in the form of a secretary's certificate or a special power
of attorney, should be attached to the pleading, and shall allege
the following attestations:
• The allegations in the pleading are true and correct
based on his or her personal knowledge, or based on
authentic documents;
• The pleading is not filed to harass, cause unnecessary
delay, or needlessly increase the cost of litigation; and
• The factual allegations therein have evidentiary
support or, if specifically, so identified, will likewise
have evidentiary support after a reasonable
opportunity for discovery.
The signature of the affiant shall further serve as a certification
of the truthfulness of the allegations in the pleading.
(Section 4, Rule 7)
When you make a verification for your clients make sure that you
don't tell a lie. Because if the client does not read and you
created facts then your client may be perjured. The worst
pleadings that you make are those that you sign under oath or
those that you make your client sign on your oath. The danger
is that there may be a falsification of public documents when
there is a false statement in the alteration of facts or perjury.
You need to be very very careful when it is verified that is why if
you are not a party to your actionable document it does not to
be under oath or verified because you cannot say under oath
that it's not true because you are not a party and you don't have
any knowledge so when you verify you need to have
knowledge either based on your personal knowledge or you
rely on offending reports.
Can you base it on your belief?
NO.
THE FACTUAL ALLEGATIONS THEREIN HAVE
EVIDENTIARY SUPPORT OR, IF SPECIFICALLY, SO
IDENTIFIED, WILL LIKEWISE HAVE EVIDENTIARY
SUPPORT AFTER A REASONABLE OPPORTUNITY FOR
DISCOVERY
When the evidence is not yet available but when you use the
modes of discovery under Rule 23-28 there will be evidentiary
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basis. So, if you don’t have the evidence yet but you will be able
to get it later on, you need to specify. It must be specifically
mentioned, so you need to say which one has evidentiary basis
after the modes of discovery.
What is the effect of the signature of the affiant?
It is to serve as the truthfulness of the allegations in the pleading
What if there are three plaintiffs should all three plaintiffs
sign and execute the verification?
NO. The rule is if it is a verification it does not to be all of them
to sign the verification. This is because the purpose of the
verification is merely just to secure an assurance that the
allegations in the pleading are true and correct and not the
product of imagination or speculation so you need to have at
least one of them say that yes, it is true or correct based on our
personal knowledge or authentic records and it as evidence
basis.
The certification of non-forum shopping of the three
plaintiffs should all of them execute their certification of
non-forum shopping?
Yes. Because the purpose of certification of non-forum shopping
is to avoid the malpractice of degrading the administration of
justice and also to avoid clogging of the topics of the courts.
The certification of non-forum shopping would say you did not
file any case. You certify that you did not file a case that would
result to forum shopping. So, if there are three plaintiffs, the two
others cannot say for the other one or they cannot speak for the
other that they did not file a case. Even if the three of them are
join creditors, they still won’t have knowledge if the other party
has a pending case in another court.
It is required for each of them to file a certification of non-forum
shopping. The lawyer alone cannot on his own sign the
certification for non-forum shopping. This is because the lawyer
has no knowledge if his client filed another case.
What is the rule if someone else will signs for you? Whether
it is a verification or certification of non-forum shopping,
what is required?
If, for justifiable reasons, the party-pleader is unable to sign, he
must execute a special power of attorney designating his
counsel of record to sign in his behalf.
In cases of juridical entities, a board resolution authorizing a
corporate officer to execute the certification against forum
shopping is necessary otherwise, the complaint will have to be
dismissed. A Secretary’s Certificate is sufficient proof of
authority for a person named to represent a corporation in a suit.
NOTE: It is the petitioner and not the counsel is in the best
position to know whether he or it actually filed or caused to filing
of a petition. As such a certification signed by counsel without
an SPA is a defective certification and a valid cause of dismissal.
A certification signed by the counsel without an SPA is
considered as no certification at all.
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EFFECT OF FAILURE TO COMPLY WITH VERIFICATION
A pleading required to be verified but lacks the proper
verification shall be treated as an unsigned pleading.
However, non-compliance with verification requirement, does
not necessarily render the pleading defective. It is only a formal
and not a jurisdictional requirement.
Does it deprive the court of jurisdiction?
NO. It is only procedural and can be corrected.
FORUM SHOPPING
Forum shopping is the act by a party of repetitively availing of
several judicial remedies in different courts simultaneously or
successively, all substantially founded on the same transactions
and the same essential facts or circumstances, and all raising
substantially the same issues either pending or already resolved
adversely by some other court.
REQUISITES FOR FORUM SHOPPING
There is forum shopping when:
• Identity of the parties, or at least such parties as represent
the same interests in both actions;
• Identity of rights asserted and relief prayed for, the relief
being founded on the same facts and;
• The identity of the two preceding particulars is such that any
judgement rendered in the pending case, regardless of
which party is successful, would amount to res judicata in
the other case.
CERTIFICATION AGAINST FORUM SHOPPING
The plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for relief,
or in a sworn certification annexed thereto and simultaneously
filed therewith
The authorization of the affiant to act on behalf of a party,
whether in the form of a secretary's certificate or a special power
of attorney, should be attached to the pleading.
NON-COMPLIANCE OF THE CERTIFICATION OF FORUM
SHOPPING
The mere failure to comply with it will result to a dismissal without
prejudice.
“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” (Section 5, Par. 3, Rule 7)
WILLFUL DELIBERATE FORUM SHOPING
If the acts of the party or his or her counsel clearly constitute
willful and deliberate forum shopping, the same shall be ground
for summary dismissal with prejudice and shall constitute
direct contempt, as well as a cause for administrative sanctions.
When there is deliberate forum shopping it would be dismissal
with prejudice it would be ground for administrative sanction.
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Can it be corrected? NON-COMPLIANCE WITH THE REQUIREMENT ON OR
No it cannot be corrected, but it can be cured by amendment. SUBMISSION OF
DEFECTIVE DEFECTIVE
Is this absolute? VERIFICATION CERTIFICATION AGAINST
FORUM SHOPPING
When there is substantial compliance it can be dispensed with.
Non compliance therewith or Non-compliance therewith or
a defect therein DOES NOT a defect therein, is generally
The supreme court said that although the rules mention that it render the pleading fatally not curable by its subsequent
cannot be corrected by amendment, still om the rules of court it defective. submission or correction
does not say that it is not automatically be dismissed because if thereof.
you look at the wording under the specific rule in court it says REMEDY
that the “failure to comply x.x.x unless otherwise provided upon The Court may order the It is not curable by its
motion after hearing.”. So “unless otherwise provide” so it means submission or correction or subsequent submission or
act on the pleading if the correction, UNLESS there is
the court can still provide otherwise and not just an automatic
attending circumstances are a need to relax the Rule on
dismissal such that strict compliance ground of “substantial
with the Rule may be served compliance” or presence of
How can there be a substantial compliance what is the thereby. “special circumstances or
example? compelling reasons.
If they failed to attach but it really existed, they just inadvertently SUBSTANTIAL COMPLIANCE
failed to attach. They just have to resubmit it the following day It is deemed substantially It must be signed by all the
complied with when: plaintiffs or petitioners in the
Or they will execute a secretary’s certification where previously
• one who has ample case, otherwise those who
there was no authority the board will ratify the authority and will knowledge to swear to did not sign will be dropped
say “authorized siya they affirm that he is authorized” or when the truth of the as a party.
they will immediately submit it and they must offer justifiable allegations in the
reasons for their failure. complaint or petition Under reasonable or
signs the verification, justifiable circumstances,
The Supreme Court has ruled that there will be no and; when all the plaintiffs or
petitioners share a common
substantial compliance if you do not provide for a justifiable
• when matters alleged in interest and invoke a
reason for your failure and if you do not provide for a the petition have been common cause of action or
submission in compliance. made in good faith or defense, the signature of one
are true and correct of them in the certification
What should you undertake in your certification? substantially comply with the
• that he or she has not theretofore commenced any action Rule.
or filed any claim involving the same issues in any court,
When will you be liable for direct contempt? When will you
tribunal or quasi-judicial agency and, to the best of his or
be liable for indirect contempt in so far as certificate of
her knowledge, no such other action or claim is pending
forum shopping?
therein;
DIRECT CONTEMPT INDIRECT CONTEMPT
• if there is such other pending action or claim, a complete
If the acts of the party or his Submission of a false
statement of the present status thereof; and or her counsel clearly certification shall constitute
• if he or she should thereafter learn that the same or similar constitute willful and indirect contempt of court,
action or claim has been filed or is pending, he or she shall deliberate forum shopping, without prejudice to the
report that fact within five (5) calendar days therefrom to the the same shall be ground for corresponding administrative
court wherein his or her aforesaid complaint or initiatory summary dismissal with and criminal actions
pleading has been filed. prejudice and shall constitute
direct contempt, as well as
cause for administrative
SUMMARY OF EFFECT OF NON-COMPLIANCE WITH sanctions.
VERIFICATION AND CERTIFICATION OF NON-FORUM
SHOPPING CONTENTS OF A PLEADING
If it is VERIFICATION, it will not make your pleading directly or Every pleading stating a party's claims or defenses shall, in
defective the court can order a submission or correction of the addition to those mandated by Section 2, Rule 7, state the
pleading and then you do not need all of them to sign the following:
verification it is substantial if one of them signed.
a) Names of witnesses who will be presented to prove a
If it is CERTIFICATION OF NON-FORUM SHOPPING it's not party's claim or defense;
curable by submission of correction UNLESS there is a need to b) Summary of the witnesses' intended testimonies, provided
relax the rules for special compelling reasons such when there that the judicial affidavits of said witnesses shall be attached
is substantial compliance when there is justifiable reason all of to the pleading and form an integral part thereof. Only
them should sign the certification of non forum shopping and it witnesses whose judicial affidavits are attached to the
should be executed by the party. pleading shall be presented by the parties during trial.
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 Except if a party presents meritorious reasons as basis for
the admission of additional witnesses, no other witness or
affidavit shall be heard or admitted by the court; and
c) Documentary and object evidence in support of the
allegations contained in the pleading.
NOTE: the pleading that asserts a claim or defense. When you
say a pleading that asserts a claim or defense it is not limited to
the complaint or answer. Because a counter-claim, cross-claim,
third-party complaint asserts a claim and an answer to a counter
claim asserts a defense.
Without prejudice to those others mentioned earlier (cause of
action etc) It should be the name of the witnesses, and if it
asserts a claim or defense you already need to allege the name
of your witnesses, the summary of their testimony then you need
to attach their judicial affidavits and then you have to also
attached already all your documentary and object evidence in
support of the pleading you have to allege it already then you
also included it
If you fail to allege it, what is the effect?
It will not be any more admitted.
Is this rule absolute?
NO. When you have meritorious reasons. (Evidentiary support
through modes of discovery)
EFFICIENT PAPER RULE
Size of the Paper: 8.5 by 13
Font size: is 14
Spacing: single space paragraph and 1.5 spacing between
paragraphs
Margins:
Left margin. 1.5 inch
Top margin 1.2 inch
Right margin: 1 inch
Bottom margin 1 inch
how many copies do we file in the supreme court?
five copies one originally marked and 4 copies
En Banc: Ten addt’l copies
Court of Appeals: Three copies
Regional Trial Court: One copy only but in real life 2 copies
JUDICIAL AFFIDAVIT RULE
(JA RUL)
What courts do we apply the JA rule?
ALL COURTS except for MTC for small claims.
It applies to the municipal trial court even if the summary does
not mention any kind of affidavit, in the JA rule it provides that
that it applies to the MTC except in small claims. Even if the
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summary procedure does not mention it, it applies, it was not
mentioned because summary procedure was enacted first
before the JA Rule.
Do we apply it in Criminal cases?
YES. It is required that if it exceeds six years you need the
consent of the accused.
NOTE: Judicial affidavit is in lieu of your direct testimony.
The rule under the JA rule which says that you need to serve
and file it within five days before trial is NOT APPLICABLE
ANYMORE.
This is because the new rules of court provide for the period.
That you can already submit as early as attaching it to your
pleadings seeking a claim or defense. It means you do not need
to file it before the pre-trial. It is deemed amended because of
the inconsistency. Also, the last part of the revised rules of court
that it is deemed to a meant those circulars that are inconsistent
therewith so obviously the period of filing in your JA rule is
inconsistent with the period of filing in the revised rules.
So, the rule is if you file a complaint you should already attach
the judicial affidavits to your complaint and if you file an answer
you should already attach the judicial affidavit in your answer.
That is the reason why the 15-day period to file an answer in the
previous rules of court was amended to 30 days because you
need to attach the judicial affidavits to your pleading.
ALLEGATIONS IN A JUDICIAL AFFIDAVIT
A judicial affidavit shall be prepared in the language known to
the witness and, if not in English or Filipino, accompanied by a
translation in English or Filipino, and shall contain the following:
(A) The name, age, residence or business address and
occupation of the witness;
(B) The name and address of the lawyer who conducts or
supervises the examination of the witness and the place
where the examination is being held;
(C) A statement that the witness is answering the questions
asked for him, fully conscious that he does not so under
oath, and that he may face criminal liability for false
testimony or perjury
(D) Questions asked of the witness and his corresponding
answers consecutively numbered, that:
a. Show the circumstances which the witness
acquired the facts upon which he testifies
b. Elicit from him those facts which are relevant to the
issues that the case presents and
c. Identify the attached documentary object and
evidence and establish their authenticity in
accordance with the Rules of Court
(E) The signature of the witness over his printed name and
(F) A jurat with the signature of the notary public who
administers the oath or an officer who is authorized by law
to administer the same.
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Is it mandatory that we attach the original document in the
judicial affidavit?
The JA rule says that it does not need to be the original provided
that it has to be authenticated you need to warrant the due
execution and the authenticity in the judicial affidavit.
Example: the copy of the deed of sale dated January 1 is
attached hereto and I warrant that it is a faithful reproduction of
the original and it is a presenting copy.
EFFECT OF FAILURE TO COMPLY WITH REQUIREMENTS
• A party who fails to submit the required judicial affidavits
and exhibits on time shall be deemed to have waived their
submission. The court may, however, allow only once the
late submission of the same provided, the delay is for a valid
reason, would not unduly prejudice the opposing party, and
the defaulting party pays a fine of not less than P1,000.00
nor more than P5,000.00, at the discretion of the court.
• The court shall not consider the affidavit of any witness who
fails to appear at the scheduled hearing of the case as
required. Counsel who fails to appear without valid cause
despite notice shall be deemed to have waived his client's
right to confront by cross-examination the witnesses there
present.
• The court shall not admit as evidence judicial affidavits that
do not conform to the content requirements of Section 3 and
the attestation requirement of Section 4 above. The court
may, however, allow only once the subsequent submission
of the compliant replacement affidavits before the hearing
or trial provided the delay is for a valid reason and would
not unduly prejudice the opposing party and provided
further, that public or private counsel responsible for their
preparation and submission pays a fine of not less than
P1,000.00 nor more than P5,000.00, at the discretion of the
court.
If you did not warrant what is the effect or the violation any
of the requirements?
It would be deemed waived so you cannot use that you just
make your own statement it's not a question-and-answer format.
the statement of the witness in the questions asked him
questions propounded he should also warrant that he executed
the affidavit knowing that he may be liable for faultless
information or perjury.
LAWYERS ATTESTATION IN JUDICIAL AFFIDAVIT
Sworn Attestation of the Lawyer:
a.) The judicial affidavit shall contain a sworn attestation at the
end, executed by the lawyer who conducted or supervised
the examination of the witness, to that effect that
a. He faithfully recorded or caused to be recorded the
questions he asked and the corresponding
answers that the witness gave; and
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b. Neither he nor any other person then present or
assisting him coached the witness regarding the
latter’s answers
b.) A false attestation shall subject the lawyer mentioned to
disciplinary including disbarment.
SUCCESSIVELY NUMBERED AND LETTERED
We need to attach the exhibits it should be successively
numbered or lettered.
If you attach 5 exhibits for judicial affidavit so that will be exhibits
“A to E” then the second judicial affidavit which has two exhibits
it should continue it should be exhibits “F and G”. Then if there
is a third judicial affidavit then it shall be marked as. “H”
If it already exceeds “Z”, you can continue with “AA-ZZ”. You
cannot include “ñ” and “ñg”.
What is the REMEDY if you make a mistake?
You need to pay for a fine.
How many times can you to correct it?
Once only with fine for damages
Will there not be a violation of due process if you need to
submit judicial affidavit in advance?
It is just only submission for orderly procedure but it is not yet
offered for evidence because the rules provide that there will be
no evidence will be considered by the court until it is formally
offered. There is a properly procedure to properly offer the
evidence and if you only submit it in compliance of attaching it
to the document that is that the formal offer contemplated by the
court.
In the rules, before the JA rule, we were able to object each
question propounded on direct but now it is oral so
everything is on paper and so does that mean that we
cannot object to the questions anymore?
NO, you may still object. Before you start with trial you need to
manifest your objections to the question before you start with
trial or you file it in writing prior to your trial objecting to each
question so that you can strike out each question that is in
violation of the rules
COURT’S OBLIGATION IN JA RULE
The court shall take an active part in examining the witness. The
court is not just passive in receiving evidence, it is mandated
shall to take an active part in examine the witness in determining
his credibility.
The court will also ask us questions to witness isn't this
unlawful lawyering for the party since the court will ask
questions?
NO, because the rules require it. Because before direct
examination is made orally. Now it is made on paper, so the
court to be able to test the credibility and for it to be able to rule
on the case it should take an active part.
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In the cases we give a lot of credence to the lower courts finding
because they were able to observe the witnesses. For instance,
you ask “do you owe X money” when the witness answers, the
trial court will be able to observe the difference in the behavior
but if it is on the transcript of the stenographic notes you will only
be able to see the answer “NO”. So the notes will not be able to
observe that kind of expression but the court wil, so for the court
to be able to test the credibility the truthfulness the court can ask
questions.
Should all witnesses execute a judicial affidavit?
YES
Let's say the local civil registrar or the one who issued the
certification from the government so do they need to
execute a judicial affidavit?
YES. Execute through a subpoena.
“If the government employee or official, or the requested
witness, who is neither the witness of the adverse party nor a
hostile witness, unjustifiably declines to execute a judicial
affidavit or refuses without just cause to make the relevant
books, documents, or other things under his control available for
copying, authentication, and eventual production in court, the
requesting party may avail himself of the issuance of a
subpoena ad testificandum or duces tecum under Rule 21 of the
Rules of Court. The rules governing the issuance of a subpoena
to the witness in this case shall be the same as when taking his
deposition except that the taking of a judicial affidavit shall be
understood to be ex parte.”
Is there an exception?
If you have an unwilling or hostile witness.
NOTE: As a rule, everyone should be issued an subpoena,
anyone who cannot be a witness you get a subpoena such as
government officials. The exception under Section 5 is when you
have an adverse witness or hostile witness.
How are you going to make objection to the offer? Oral or
in writing?
Oral
RULE 8
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
ALLEGATION IN A PLEADING
Every pleading shall contain in a methodical and logical form, a
plain, concise and direct statement of the ultimate facts,
including the evidence on which the party pleading relies for his
or her claim or defense, as the case may be.
If a cause of action or defense relied on is based on law, the
pertinent provisions thereof and their applicability to him or her
shall be clearly and concisely stated.
(Section 1, Rule 8)
Is ultimate facts the same as evidentiary facts?
NO.
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What distinguishes ultimate facts from evidentiary facts?
ULTIMATE FACTS EVIDENTIARY FACTS
Ultimate Facts are the Evidentiary facts are those
essential facts constituting which are necessary to prove
the plaintiff’s cause of action, the ultimate fact or which
or such facts as are so furnish the evidence of
essential that they cannot be existence of some other
stricken out without leaving facts.
the statement of the cause of
action inadequate
ALTERNATIVE CAUSES OF ACTION OR DEFENSE
A party may state as many claims or defenses as he has,
regardless of consistency, but each must be consistent in itself.
A party may set forth two or more statements of a claim or
defense alternatively or hypothetically, either in one cause of
action or defense or in separate causes of action or defenses.
When two or more statements are made in the alternative and
one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or
more of the alternative statements. (Section 2, Rule 8)
What if at the time you are going to file your answer and you
are claiming that if you alleged those two cohesive actions
it would be inconsistent with each other is that correct is?
In alternative you are just hypothetically admitting it’s not a fact
but you are basing it on a claim or defense that alternatively or
hypothetically. It does not have to be actual it can be
hypothetical.
If you have available alternative defense is that you did not
raise at the time, he could have raised it what is the effect?
It is deemed waived.
CONDITION PRECEDENT
In any pleading, a general averment of the performance or
occurrence of all condition’s precedent shall be sufficient.
Condition precedent are those matters which must be complied
with before a cause of action arises. The compliance of the
same must be alleged in the complaint or petition.
Examples of Condition Precedent
• Exhaustion of Administrative Remedies
• Barangay Conciliation
• Arbitration
How do you enforce a foreign judgement?
In pleading a judgment or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision without setting forth
matter showing jurisdiction to render it. An authenticated copy of
the judgment or decision shall be attached to the pleading.
(Section 6, Rule 8)
HOW DO YOU MAKE SPECIFIC DENIAL?
A defendant must specify each material allegation of fact the
truth of which he or she does not admit and, whenever
practicable, shall set forth the substance of the matters upon
which he or she relies to support his or her denial. Where a
defendant desires to deny only a part of an averment, he or she
shall specify so much of it as is true and material and shall deny
only the remainder. Where a defendant is without knowledge or
41
information sufficient to form a belief as to the truth of a material
averment made to the complaint, he or she shall so state, and
this shall have the effect of a denial. (Section 10, Rule 8)
AFFIRMATIVE DEFENSES
Affirmative Defenses. —
(A) A defendant shall raise his or her affirmative defenses in his
or her answer, which shall be limited to the reasons set forth
under Section 5 (b), Rule 6, and the following grounds:
1. That the court has no jurisdiction over the person of the
defending party;
2. That venue is improperly laid;
3. That the plaintiff has no legal capacity to sue;
4. That the pleading asserting the claim states no cause
of action; and
5. That a condition precedent for filing the claim has not
been complied with.
What are these NON-WAIVABLE DEFENSES?
• Lack of jurisdiction over the subject matter
• Litis Pendentia
• Res Judicata
• Statute of Limitations
These are non-waivable defenses subject to the EXCEPTION of
Estoppel by Laches as provided for in Tijam v. Sibonghanoy
Period within which to FILE AN ANSWER?
30 calendar days
Can you EXTEND this period within which to file an
Answer?
YES. A defendant may, for meritorious reasons, be granted an
additional period of not more than thirty (30) calendar days to file
an answer. A defendant is only allowed to file one (1) motion for
extension of time to file an answer. (Rule 11, Section 11)
How many times can you file a Motion for Extension of
Time?
Only ONCE.
The answer was not filed on time, it was filed on the 40th day
and there was no motion to for extension. But the plaintiff
did not move to declare the defendant in default, the
defendant filed in on the 40th day and the court admitted it.
The plaintiff objected on the ground that the court should
not have admitted the answer, because it was filed out of
time. Was the Court incorrect in admitting the Answer filed
out of time?
NO.
Can a court declare a party in default motu proprio?
NO. It has to be upon motion.
RULE 9
EFFECT OF FAILURE TO PLEAD
What is the EFFECT of an ORDER OF DEFAULT?
There will be a judgment on default. From the order of default,
the court can render a judgment which is based on what the
pleadings may warrant.
For example: in summary procedure, if the plaintiff asks for
P50,000. The Court cannot award more than P50,000.
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Another act of the court is that rather than rendering judgement
right away, it can require reception of evidence first before it
renders a judgement.
“A party in default shall be entitled to notices of subsequent
proceedings but shall not take part in the trial.”
(Section 3 (a), Rule 9)
Can the reception of evidence be delegated on the Clerk of
Court?
YES. The reception of evidence may be delegated to the Clerk
of Court under Section 3, Rule 9.
Does this mean that in the entire proceeding the defendant
has no participation and no notice?
NO. He can serve as a witness for the plaintiff. The counsel of
the plaintiff
REMEDY TO AN ORDER OF DEFAULT?
Motion under oath to set aside the order of Default.
Under what grounds?
A party declared in default may at any time after notice thereof
and before judgment, file a motion under oath to set aside the
order of default upon proper showing that his or her failure to
answer was due to fraud, accident, mistake or excusable
negligence and that he or she has a meritorious defense. In such
case, the order of default may be set aside on such terms and
conditions as the judge may impose in the interest of justice.
(Section 3 (b), Rule 9)
What kind of fraud?
Extrinsic
Example of an Extrinsic Fraud?
The plaintiff pretended that he is the defendant. The plaintiff
Stayed outside the house of the defendant, and the plaintiff
acting as the defendant received the summons so that the 30-
day period will run. The defendant does not know that there is a
summons already, there is extrinsic fraud because the
defendant could not file on time because the plaintiff defrauded
the defendant making it appear that he is the defendant.
REMEDY AFTER JUDGEMENT AND BEFORE JUDGEMENT
BECOMES FINAL AND EXECUTORY
If the judgement has already been rendered when the defendant
discovered the default but before the same has become final
and executory, he may file a motion for new trial under Rule
37. He may also file an appeal from the judgement as being
contrary to evidence or law.
REMEDY AFTER JUDGEMENT BECOMES FINAL AND
EXECUTORY
The defendant may file a petition for relief from judgement
under Rule 38.
In BOTH cases, Certiorari may be filed when said party was
improperly declared in default because this would tantamount to
a grave abuse of discretion amounting to lack of jurisdiction.
Appeal instead of a motion for new trial?
You may file a motion for new trial and then file an appeal.
Grounds of striking out a pleading if it is a sham?
Upon motion made by a party before responding to a pleading
or, if no responsive pleading is permitted by these Rules, upon
motion made by a party within twenty (20) calendar days after
the service of the pleading upon him or her, or upon the court's
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own initiative at any time, the court may order any pleading to
be stricken out or that any sham or false, redundant,
Three joint debtors but only one filed an answer, will the two
parties who did not file an answer be declared in default
upon motion of the plaintiff?
• Can they not benefit from the answer of the one who
answered?
• Can it not be argued that there is a common cause of
action against them and therefore they cannot be
declared in default?
No, it is not a common cause of action. In joint obligations, each
one is liable for a specific amount so it is not a common cause
for all of them. They are NECESSARY PARTIES.
If they are solidary debtors then there will not be a default and
they will benefit from the answering defendant because they
have the same cause of action. In such instance, the Court will
not declare them as default. The court will receive the evidence.
RULE 62, Section 1
“When interpleader proper. — Whenever conflicting claims upon
the same subject matter are or may be made against a person
who claims no interest whatever in the subject matter, or an
interest which in whole or in part is not disputed by the claimants,
he may bring an action against the conflicting claimants to
compel them to interplead and litigate their several claims
among themselves.”
In relation to Credit Transaction (Warehouse Receipts): when
there are conflicting claimants against the warehouseman, the
warehouseman can file an action for interpleader.
Interpleader is what you file when you are not claiming anything
against the subject matter. In the case of the warehouseman, he
does not have anything to do with the object of the warehouse
receipt. He just doesn’t know where to deliver because there are
two conflicting claimants.
The remedy should’ve been that the two claimants filed an
action against each other. But they are not filing a complaint
against each other but claiming it against the warehouse man.
LEASE: It is similar to a lessee who lease the premises, and he
does not know where payment should be made. When there are
two people who claims to be the owner of the leased property.
In such instance, the one that they are claiming against who has
no interest in the subject matter, can file an action of an
interpleader for the conflicting claimants to interplead.
In that case, they are both defendants. But if one of them does
not answer, the other one will not benefit even if it is the same
subject matter that they are claiming. This is because they have
conflicting claim that is why you cannot apply the rules on partial
default that one is benefited by the answer of another.
Cases when there are NO DEFAULT
If the defending party in an action for annulment or declaration
of nullity of marriage or for legal separation fails to answer, the
court shall order the Solicitor General or his or her deputized
public prosecutor, to investigate whether or not a collusion
between the parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the evidence
submitted is not fabricated.
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RULE 10
AMENDED AND SUPPLEMENTAL PLEADING
AMENDMENT OF A PLEADING
Pleadings may be amended by adding or striking out an
allegation or the name of any party, or by correcting a mistake
in the name of a party or a mistaken or inadequate allegation or
description in any other respect, so that the actual merits of the
controversy may speedily be determined, without regard to
technicalities, in the most expeditious and inexpensive manner.
(Section 1, Rule 10)
AMENDMENT OF A PLEADING AS A MATTER OF RIGHT
A party may amend his pleading once as a matter of right at any
time before a responsive pleading is served or, in the case of a
reply, at any time within ten (10) calendar days after it is served.
(Section 2, Rule 10)
Does it only apply to a complaint?
NO. It can be any other pleading as long as there is no
responsive pleading.
Amendment of a REPLY not based on an actionable
document, or REJOINDER?
10 Calendar Days from time it is served. After the answer has
been filed, it is now with leave of court.
When can the leave of court be refused?
A Leave of court shall be refused if it appears to the court that
the motion was made with intent to delay or confer jurisdiction
on the court, or the pleading stated no cause of action from the
beginning which could be amended.
It shall be refused if it was made with:
• Intent to delay
• Confer jurisdiction on the court
• Pleading stated no cause of action from the beginning
FORMAL AMENDMENT
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.
(Section 4, Rule 10)
Jurisdiction over the issues is based on the pleadings, if it
is not in the pleading the court does not acquire jurisdiction
over the issues, the exception is when it is heard in trial and
there is no objection during trial. So, it will be an additional
issue that the court will rule upon. Do you need to amend
the pleading when that happens?
When issues not raised by the pleadings are tried with the
express or implied consent of the parties, they shall be treated
in all respects as if they had been raised in the pleadings. No
amendment of such pleadings deemed amended is necessary
to cause them to conform to the evidence.
(Section 5, Rule 10)
SUPPLEMENTAL PLEADING
Upon motion of a party, the court may, upon reasonable notice
and upon such terms as are just, permit him or her to serve a
supplemental pleading setting forth transactions, occurrences or
events which have happened since the date of the pleading
sought to be supplemented. The adverse party may plead
thereto within ten (10) calendar days from notice of the order
admitting the supplemental pleading. (Section 6, Rule 10)
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Mico Filed for a collection for sum of money against Cardo
and Mico did not attach an actionable document. Before
Cardo was able to file an answer, Mico found in his drawer
the contract of loan. But Mico only found it after he filed the
complaint, if Mico want to include the contract of loan what
is your remedy a supplemental complaint or amended
complaint?
Amended Complaint
Remedy to implead an indispensable party not impleaded
in your original complaint?
It is a formal amendment.
Can you file a third-party complaint?
NO. It must be a formal amendment impleading the
indispensable party. This is because your failure to implead the
indispensable party would render the proceedings void.
What is the effect of an amended pleading?
An amended pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may be offered
in evidence against the pleader, and claims or defenses alleged
therein not incorporated in the amended pleading shall be
deemed waived.
(Section 8, Rule 10)
You filed an answer, in the answer you raised 10 affirmative
defenses. Subsequently, you wanted to file an amended
answer, but when you filed it you only raised 3 affirmative
defenses. Can you tell the court that your affirmative
defenses are those contained in your original and amended
answer combined?
NO. The rules provide that admissions in superseded pleadings
may be offered in evidence against the pleader, and claims or
defenses alleged therein not incorporated in the amended
pleading shall be deemed waived.
The 7 affirmative defenses you did not admit is deemed waived.
Does this mean that we can no longer use for any purpose
the original pleading that was amended?
You use it to confront it to the witness. So, you can show
inconsistent statements to impeach a witness and that affects
the credibility or believability of witness.
For example: if the plaintiff originally claimed in the complaint
P100,000 then he amends it to P150,000 so you can show the
conflicting documents to show that the claim is actually lesser
than what he is asking for.
When you file an answer with affirmative defenses, will the
court wait for trial before the court rules on the affirmative
defenses? What will the court do with the defenses raised
in the Answer?
Make a ruling within 30 calendar days
Can a party file a motion to set the affirmative defenses for
hearing?
NO. It is a prohibited motion. You can only have a hearing if the
court, in its discretion, decides to do so.
In so far as summary hearing for defenses, is it allowed for
any ground?
First paragraph of Rule 6, Section (b). Because the others, you
can already determine based on the pleading. For example,
jurisdiction over the subject matter, you can determine it from
looking at the pleading on its own.
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RULE 11
WHEN TO FILE RESPONSIVE PLEADINGS
ANSWER TO A COMPLAINT
The defendant shall file his or her answer to the complaint within
thirty (30) calendar days after service of summons, unless a
different period is fixed by the court.
(Section 1, Rule 10)
Period to file an Answer of a Foreign Private Juridical
Entity.
Where the defendant is a foreign private juridical entity and
service of summons is made on the government official
designated by law to receive the same, the answer shall be filed
within sixty (60) calendar days after receipt of summons by
such entity. (Section 2, Rule 10)
Period Answer to Amended Complaint
When the plaintiff files an amended complaint as a matter of
right, the defendant shall answer the same within thirty (30)
calendar days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall
answer the amended complaint within fifteen (15) calendar
days from notice of the order admitting the same. An answer
earlier filed may serve as the answer to the amended complaint
if no new answer is filed. (Section 3, Rule 10)
If you did not file an answer to an amended complaint, does
that mean that you will be declared in default?
NO. You cannot be declared in default because you already filed
an Answer to the complaint. The rules provide that the answer
earlier filed will serve as the answer to the amended complaint
if no new answer is filed.
Period to file Answer to counter claim and cross-claim?
A counterclaim or cross-claim must be answered within twenty
(20) calendar days from service. (Section 4, Rule 10)
Answer to third 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.
It must be filed within thirty (30) calendar days after service
of summons unless a different period is fixed by the court.
(Section 5, Rule 11)
When is a REPLY ALLOWED?
A reply, if allowed under Section 10, Rule 6 hereof, may be filed
within fifteen (15) calendar days from service of the pleading
responded to. (Section 6, Rule 11)
ANSWER TO SUPPLEMENTAL COMPLAINT
A supplemental complaint may be answered within twenty (20)
calendar days from notice of the order admitting the same,
unless a different period is fixed by the court. The answer to the
complaint shall serve as the answer to the supplemental
complaint if no new or supplemental answer is filed.
No answer to supplemental complaint, can we use the
original answer as an answer to supplemental?
As a rule, if you do not raise counter claims and cross-claims it
is deemed waived
EXCEPTIONS
counterclaim or a cross-claim which either matured or was
acquired by a party after serving his or her pleading may, with
44
the permission of the court, be presented as a counterclaim or a
cross-claim by supplemental pleading before judgment.
How do you plead them?
Supplemental counter-claim or cross claim because it is a
transaction that occurred after your filing.
When you say supplemental it presupposes that you already
have an original counter claim or cross claim.
What if you failed to plead it? It existed before but you
forgot?
When a pleader fails to set up a counterclaim or a crossclaim
through oversight, inadvertence, or excusable neglect, or when
justice requires, he or she may, by leave of court, set up the
counterclaim or cross-claim by amendment before judgment.
RULE 12
BILL OF PARTICULARS
BILL OF PARTICULARS
Before responding to a pleading, a party may move for a definite
statement or for a bill of particulars of any matter, which is not
averred with sufficient definiteness or particularity, to enable him
or her properly to prepare his or her responsive pleading. If the
pleading is a reply, the motion must be filed within ten (10)
calendar days from service thereof. Such motion shall point out
the defects complained of, the paragraphs wherein they are
contained, and the details desired.
(Section 1, Rule 12)
PURPOSE OF BILL OF PARTICULARS
To enable the parties to properly prepare his or her responsive
pleading.
A function of a bill of particulars is to clarify the allegations in the
pleading so an adverse party may be informed with certainty of
the exact character of the cause of action or defense. Without
the clarifications sought by the motion, the movant may be
deprived of the opportunity to submit an intelligent responsive
pleading.
Within what period should you file the motion?
Within ten (10) calendar days from service thereof.
Are you only limited to filing a motion for bill of particulars
for a complaint?
Within the period to file a responsive pleading, before a
responsive pleading is filed. Otherwise, you are deemed to have
waived it.
If no responsive pleading is allowed such as when a reply not
based on an actionable document you have 10 calendar days.
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.
(Section 2, Rule 12)
What should the plaintiff do if the court grants the motion?
If the motion is granted, either in whole or in part, the compliance
therewith must be effected within ten (10) calendar days from
notice of the order, unless a different period is fixed by the court.
The bill of particulars or a more definite statement ordered by
the court may be filed either in a separate or in an amended
pleading, serving a copy thereof on the adverse party.
(Section 3, Rule 12)
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File a bill of particulars of a more definite statement of what is
lacking and it may either be in a separate or amended pleading.
EFFECT OF NON-COMPLIANCE
If the order is not obeyed, or in case of insufficient compliance
therewith, the court may order the striking out of the pleading or
the portions thereof to which the order was directed, or make
such other order as it deems just. (Section 4, Rule 12)
REFUSAL TO COMPLY
If the order is not obeyed, or in case of insufficient compliance
therewith, the court may order the striking out of the pleading or
the portions thereof to which the order was directed, or make
such other order as it deems just. (Section 4, Rule 12)
STAY PERIOD TO FILE A RESPONSIVE PLEADING
After service of the bill of particulars or of a more definite
pleading, or after notice of denial of his or her motion, the moving
party may file his or her responsive pleading within the period to
which he or she was entitled at the time of filing his or her motion,
which shall not be less than five (5) calendar days in any event
(Section 5, Rule 12).
BILL PART OF PLEADING
A bill of particulars becomes part of the pleading for which it is
intended
RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGEMENTS
AND OTHER PAPERS
FILING OF A PLEADING
Filing is the act of submitting the pleading or other proper to the
court.
SERVICE OF A PLEADING
Service is the act of providing a party with a copy of the pleading
or any other court submission.
Who conducts service, is it only the party who serves the
other party?
NO. The court can also serve. The court serves documents like
orders, judgements, resolutions and notices to parties and
parties also serve to other parties the pleadings.
You cannot file a pleading without proper service. If you do not
serve it before filing it is not deemed filed.
When you have several counsels, are all of them entitled to
a copy?
When one counsel appears for several parties, such counsel
shall only be entitled to one copy of any paper served by the the
opposite side.
When several counsels appear for one party, such party shall
be entitled to only one copy of any pleading or paper to be
served upon the lead counsel if one is designated
What if there is no lead counsel?
If there is no lead counsel it shall be served upon any one of
them
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DIFFERENT WAYS OF FILING A PLEADING IN COURT
The filing of pleadings and other court submissions shall be
made by:
a) Submitting personally the original thereof, plainly indicated
as such, to the court;
b) Sending them by registered mail;
c) Sending them by accredited courier; or
d) Transmitting them by electronic mail or other electronic
means as may be authorized by the Court in places where
the court is electronically equipped.
In the first case, the clerk of court shall endorse on the pleading
the date and hour of filing. In the second and third cases, the
date of the mailing of motions, pleadings, and other court
submissions, and payments or deposits, as shown by the post
office stamp on the envelope or the registry receipt, shall be
considered as the date of their filing, payment, or deposit in
court. The envelope shall be attached to the record of the case.
In the fourth case, the date of electronic transmission shall be
considered as the date of filing
PERSONAL SERVICE
Court submissions may be served by personal delivery of a copy
to the party or to the party's counsel, or to their authorized
representative named in the appropriate pleading or motion, or
by leaving it in his or her office with his or her clerk, or with a
person having charge thereof. If no person is found in his or her
office, or his or her office is not known, or he or she has no office,
then by leaving the copy, between the hours of eight in the
morning and six in the evening, at the party's or counsel's
residence, if known, with a person of sufficient age and
discretion residing therein. (Section 6, Rule 13)
You should have the receiving copy where there is an
acknowledgement of receipt. You have one original copy to file
in court because if it is the trial court under the efficient paper
rule you only have one copy to be filed in court.
The you the receiving copy and they will stamp in both copies
the date and time of receipt.
SERVICE BY REGISTERED 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 to the party's counsel at his or her office, if known,
otherwise at his or her residence, if known, with postage fully
prepaid, and with instructions to the postmaster to return the
mail to the sender after ten (10) calendar days if undelivered. If
no registry service is available in the locality of either the sender
or the addressee, service may be done by ordinary mail.
PROOF OF FILING BY REGISTERED MAIL
If the pleading or any other court submission was filed by
registered mail, the filing shall be proven by the registry receipt
and by the affidavit of the person who mailed it, containing a full
statement of the date and place of deposit of the mail in the post
office in a sealed envelope addressed to the court, with postage
fully prepaid, and with instructions to the postmaster to return
the mail to the sender after ten (10) calendar days if not
delivered. (Section 16 (b), Rule 13)
What should be contained in the affidavit?
The Affidavit shall contain a statement of the:
• Date,
• Place
• Manner of service
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Proof of filing personally is the pleading that is in court with
the acknowledgement receipt and the indorsement of the
clerk of court. But if they cannot find that copy in the
records, what is your proof of filing?
The receiving copy with the written or stamp acknowledgement
of the clerk of court.
Filing by accredited courier, Is it any courier?
NO. It must be ACCREDITED courier.
NOTE: the rules only came out with the rules this September
2020 on how to accredit a courier. There is no accredited
courier.
PROOF OF FILING BY COURIER SERVICE
If the pleading or any other court submission was filed through
an accredited courier service, the filing shall be proven by an
affidavit of service of the person who brought the pleading or
other document to the service provider, together with the
courier's official receipt and document tracking number. (Section
16 (c), Rule 13)
DATE OF FILING
• Registered Mail
• Accredited courier
• EMAIL
PROOF OF FILING BY ELECTRONIC MEANS - EMAIL
If the pleading or any other court submission was filed by
electronic mail, the same shall be proven by an affidavit of
electronic filing of the filing party accompanied by a paper copy
of the pleading or other document transmitted or a written or
stamped acknowledgment of its filing by the clerk of court. If the
paper copy sent by electronic mail was filed by registered mail,
paragraph (b) of this Section applies. (Section 16 (d), Rule 13)
In other words, if you file through electronic mail, you still
need a personal service.
PROOF OF FILING OTHER AUTHORIZED ELECTRIC
MEANS
If the pleading or any other court submission was filed through
other authorized electronic means, the same shall be proven by
an affidavit of electronic filing of the filing party accompanied by
a copy of the electronic acknowledgment of its filing by the court.
How do you prove this?
Accompanied by the copy that is acknowledgement
What are the papers required to be filed and served?
DIFFERENT MODES OF SERVICE
• Ordinary Mail
• Registered Mail
• Accredited Courier Service
• Electric mail, fascimile, or other Authorized electronic
means of transmission
PROOF OF SERVICE BY PERSONAL SERVICE
Proof of personal service shall consist of a written admission of
the party served, or the official return of the server, or the
affidavit of the party serving, containing a statement of the date,
place, and manner of service.
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PROOF OF SERVICE OF ORDINARY MAIL
Proof shall consist of an affidavit of the person mailing stating
the facts showing compliance with Section 7 of this Rule.
PROOF OF SERVICE BY REGISTERED MAIL
Proof shall be made by the affidavit mentioned above and the
registry receipt issued by the mailing office. The registry return
card shall be filed immediately upon its receipt by the sender, or
in lieu thereof, the unclaimed letter together with the certified or
sworn copy of the notice given by the postmaster to the
addressee.
Do you need to make an affidavit for personal service?
Yes.
Isn’t the acknowledgement already the proof of service?
It is only one of the proof of service. It can either be the
acknowledgement or the affidavit of the party serving.
Can we avail by ordinary mail? When?
YES. Only when there is no registered mail
NOTE: Proof of service that is by registered mail and accredited
courier service is essentially the same as filing. Affidavit and
either the registry receipt or the official receipt with the tracking
number.
PROOF OF SERVICE OF ELECTRONIC MAIL, FACSIMILE,
OR OTHER ELECTRONIC MEANS
Proof shall be made by an affidavit of service executed by the
person who sent the e-mail, facsimile, or other electronic
transmission, together with a printed proof of transmittal.
Filing through registered mail or accredited courier is
deemed filed on the date of mailing, what about if it is
SERVICE? When is it completed?
Service by registered mail is complete upon actual receipt by
the addressee, or after five (5) calendar days from the date he
or she received the first notice of the postmaster, whichever date
is earlier.
Service by accredited courier is complete upon actual receipt
by the addressee, or after at least two (2) attempts to deliver by
the courier service, or upon the expiration of five (5) calendar
days after the first attempt to deliver, whichever is earlier.
NOTE: Even if the rules only mention ordinary mail, you apply
also the registered mail. So, it is upon actual receipt or at least
three attempts
The usual case is they don’t deliver it to your house. What they
will do is send you a notice that you have a mail in the post office
and that you should claim it. So even if you haven’t claimed it
but you have notice that you have mail. From the lapse of the 5-
day period from the day that you have notice, you are deemed
to have received it.
PROOF OF SERVICE OF COURIER SERVICE
Proof shall be made by an affidavit of service executed by the
person who brought the pleading or paper to the service
provider, together with the courier's official receipt or document
tracking number.
PROOF OF SERVICE OF ELECTRONIC SERVICE
Electronic mail, facsimile, or Other Authorized electronic means
of transmission. — Proof shall be made by an affidavit of service
executed by the person who sent the e-mail, facsimile, or other
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electronic transmission, together with a printed proof of
transmittal.
You went to court and you are facing Atty. Panandigan. You
asked Atty Panandigan if she received the email you sent
her. Atty. Panandigan said she did not receive anything. Is
that deemed served?
NO. Because you learned that it did not reach
CONVENTIONAL SERVICE OF FILING OF ORDERS,
PLEADINGS AND OTHER DOCUMENTS
The preference is personal or by registered mail
What are these pleadings?
Initiatory pleadings or initiatory responsive pleadings
Can you do service by email?
Yes but only when permitted by the court.
What if the court did not make a ruling but the parties
agreed. Can you have service by email?
Either the parties agree or the court directs.
if there is no court directive and no agreement, can you
automatically serve by email?
You need indicate the official email where you can mail it. If the
court does not direct it and there is no agreement. The party can
still file electronic mail but CANNOT SERVE electronic mail.
PRESUMPTIVE SERVICE
There shall be presumptive notice to a party of a court setting if
such notice appears on the records to have been mailed at least
twenty (20) calendar days prior to the scheduled date of hearing
and if the addressee is from within the same judicial region of
the court where the case is pending, or at least thirty (30)
calendar days if the addressee is from outside the judicial
region.
(Section 10, Rule 13)
If it has been mailed at least 20 calendar days prior to the
scheduled date of hearing and if the addressee is within the
same judicial region. If it is not the same judicial region within 30
calendar days.
Is this presumption disputable or conclusive?
DISPUTABLE.
The reason is that, for example, if you serve by registered mail,
the proof of actual date of receipt that they have notice is the
return. So, if you mail, there will be a return to you. It will show
the date you received it. If there is no return, there is no proof
that the party received notice.
In those cases, for interest of justice the court will reset the
hearing. This delays the case, this is why they have the
presumptive service, such that after the lapse of the period it is
presumed that they received notice. But since it is disputable it
is subject to the contrary.
SUBSTITUTED SERVICE
If service of pleadings, motions, notices, resolutions, orders and
other papers cannot be made under the two preceding sections,
the office and place of residence of the party or his or her
counsel being unknown, service may be made by delivering the
copy to the clerk of court, with proof of failure of both personal
service and service by mail. The service is complete at the time
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of such delivery. (Section 8, Rule 13) - Show proof that all the
others have failed and the place and residence is unknown.
What if it is unknown because the lawyer changed his
address, can you make substituted service?
YES, because it is the address in the court records that is
binding. So, if you change your address, you need to give notice
to the court and the parties.
If you did not give notice to the court and to the parties, what will
be used is the address you have given.
NOTICE OF LIS PENDENS
In an action affecting the title or the right of possession of real
property, the plaintiff and the defendant, when affirmative relief
is claimed in his or her answer, may record in the office of the
registry of deeds of the province in which the property is situated
a notice of the pendency of the action. Said notice shall contain
the names of the parties and the object of the action or defense,
and a description of the property in that province affected
thereby. Only from the time of filing such notice for record shall
a purchaser, or encumbrancer of the property affected thereby,
be deemed to have constructive notice of the pendency of the
action, and only of its pendency against the parties designated
by their real names.
TWO-FOLD PURPOSE
1. The property is within the jurisdiction of the court such that
the judgement will not be defeated by subsequent alienation
of property during the pendency of the case
2. To give notice to bona fide purchasers of the property so
that they will be bound by the judgement of the case. Then
they cannot claim that they are mere innocent purchaser for
value without knowledge, you will apprise them of the
status.
GROUNDS TO CANCEL A NOTICE OF LIS PENDENS
The notice of lis pendens hereinabove mentioned may be
cancelled only upon order of the court, after proper showing that
the notice is for the purpose of molesting the adverse party, or
that it is not necessary to protect the rights of the party who
caused it to be recorded.
RULE 14
SUMMONS
SUMMONS
Unless the complaint is on its face dismissible under Section 1,
Rule 9, the court shall, within five (5) calendar days from receipt
of the initiatory pleading and proof of payment of the requisite
legal fees, direct the clerk of court to issue the corresponding
summons to the defendants.
Is the purpose of the summons only to give information?
Its purpose is two-fold: (a) to acquire jurisdiction over the person
of the defendant and (b) to notify the defendant that an action
has been commenced so that he may be given opportunity to be
heard on the claim against him
TO WHOM SHOULD THE COURT DIRECT THE SUMMONS?
It shall be directed to the clerk of court who shall issue the
corresponding summons to the defendant.
PERIOD OF ISSUANCE OF SUMMONS
It shall be issued within Five (5) calendar days from receipt of
the initiatory pleading AND proof of payment of the
requisite legal fees.
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CONTENTS OF A SUMMONS
The summons shall be directed to the defendant, signed by the
clerk of court under seal, and contain:
a) The name of the court and the names of the parties to
the action;
b) When authorized by the court upon ex parte motion, an
authorization for the plaintiff to serve summons to the
defendant;
c) A direction that the defendant answer within the time
fixed by these Rules; and
d) A notice that unless the defendant so answers, plaintiff
will take judgment by default and may be granted the
relief applied for.
A copy of the complaint and order for appointment of guardian
ad litem, if any, shall be attached to the original and each copy
of the summons
What should accompany the summons if the plaintiff is
incompetent?
Appointment of guardian ad litem attached to it is the complaint.
WHO SERVES THE SUMMON?
The sheriff, his or her deputy, or other proper court officers.
Can the plaintiff do it on his own?
NO. It has to be with the sheriff if it is within the judicial region.
Outside the judicial region, it is allowed that the plaintiff alone.
HOW CAN A CORPORATION SERVE SUMMONS AS
PLAINTIFF?
If the plaintiff is a juridical entity, it shall notify the court, in writing,
and name its authorized representative therein, attaching a
board resolution or secretary's certificate thereto, as the case
may be, stating that such representative is duly authorized to
serve the summons on behalf of the plaintiff.
(Section 3, par. 2, Rule 14)
Can the plaintiff automatically serve summons? Should the
court allow?
Court should authorize the plaintiff.
How will the plaintiff ask permission to serve summons?
Ex-parte Motion. It is an ex-parte because it is without notice to
the other defendant.
As a rule, motion should be made with notice to the other party,
but in this instance, it is ex-parte, wherein you do not need to
furnish the motion to the other party. This is because there is no
jurisdiction over the person of the defendant. The summons is
the mode for you to acquire jurisdiction over the person of the
defendant.
Since summons have not yet been served, there is no
jurisdiction over the person of the defendant as such there is no
need to furnish the copy to the other party.
You are the plaintiff, you attempted to serve the summons
but you were not really able to serve the summons. But you
reported to the Court that you were able to serve summons,
so the case proceeded. The defendant was not able to file
an answer, because he did not know that there was a case
filed against him because no summons was served.
You moved to declare the defendant in default. The Court
issued an order of default and the Court rendered
judgement on Default. Subsequently, the Court learned that
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you misrepresented that you served summons to the
defendant. What is the effect?
Dismissed with prejudice.
The sheriff or his deputy or the other officer of the court
attempted to serve summons. They were unable to serve
summons. Will the case be dismissed?
NO. The Court will order the plaintiff to cause the service of
summons in accordance with the other rules of service of
summons.
PERIOD OF VALIDITY OF SUMMONS
Summons shall remain valid until duly served, unless it is
recalled by the court. In case of loss or destruction of summons,
the court may, upon motion, issue an alias summons.
NOTE: In the past, if you are unable to serve summons, you
need to ask for summons again in the form of an alias summons.
But NOW, even if it remains to be unserved, it remains to be
valid until it is served just like a warrant of arrest.
The process server was hungry so he ate the summons.
What is the remedy of the plaintiff?
File a motion for the issuance of an alias summons.
When is an Alias Summons issued?
When the summons is lost or destroyed.
What is the proper mode of service?
As a rule, summons must be served must be done personally.
Just like with service, you need to get an acknowledgement of
the person being served. So, they will acknowledge receipt,
write their name, the time and date of the service.
What if they refuse to sign or acknowledge receipt? Does
this mean we cannot serve summons?
Whenever practicable, the summons shall be served by handing
a copy thereof to the defendant in person and informing the
defendant that he or she is being served, or, if he or she refuses
to receive and sign for it, by leaving the summons within the view
and in the presence of the defendant.
(Section 5, Rule 14)
Tender of summons. You leave it in his presence and within
his view because he refuses to receive it and sign it.
First is personally serving it. It should be acknowledged or
signed. If they refuse to receive and acknowledge or sign then it
is within their presence.
You went to the house of the defendant. But the defendant
was not there. Every-time you try to serve he was not there.
Does that mean you cannot serve summons?
After at least three (3) attempts at two (2) different dates, the
plaintiff can avail of substituted service of summons.
What if you did it 10x in one day, can you already do service
of summons?
NO. It must be done at two (2) different dates and atleast three
(3) different attempts.
HOW DO WE EFFECT SUBSTITUTED SERVICE OF
SUMMONS?
If, for justifiable causes, the defendant cannot be served
personally after at least three (3) attempts on two (2) different
dates, service may be effected:
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a.) By leaving copies of the summons at the defendant's
residence to a person at least eighteen (18) years of
age and of sufficient discretion residing therein;
b.) By leaving copies of the summons at the defendant's
office or regular place of business with some
competent person in charge thereof. A competent
person includes, but is not limited to, one who
customarily receives correspondences for the
defendant;
c.) By leaving copies of the summons, if refused entry
upon making his or her authority and purpose known,
with any of the officers of the homeowners' association
or condominium corporation, or its chief security officer
in charge of the community or the building where the
defendant may be found; and
d.) By sending an electronic mail to the defendant's
electronic mail address, if allowed by the court
The son of the defendant is 25 years of age and is insane.
Can you leave the summons to him?
NO. He cannot be considered as someone with sufficient
discretion.
What do you mean by competent person?
It includes but is not limited to, one who customarily receives
correspondences for the defendant.
If for instance the office is in a unit in a building. He is
leasing one unit. There is a guard assigned for the building.
Can you leave it at the guard assigned in the building?
YES. So long as the guard customarily receives correspondence
of the defendant.
What if he does not customarily receive, can he be
considered as a person-in-charge?
NO. Because he is only assigned as the officer-in-charge of the
building and not the office.
Is it automatic that we can avail for E-MAIL after three
attempts on two different dates?
NO. The Court must allow it.
NOTE: You need to announce the purpose.
CONTENTS OF THE RETURN
In the return of the sheriff when you are going to do a
service, what should be alleged there?
Should substituted service have been affected, the return shall
state the following:
(1) The impossibility of prompt personal service within a period
of thirty (30) calendar days from issue and receipt of
summons;
(2) The date and time of the three (3) attempts on at least
(3) two different dates to cause personal service and the details
of the inquiries made to locate the defendant residing
thereat; and
(4) The name of the person at least eighteen (18) years of age
and of sufficient discretion residing thereat, name of
competent person in charge of the defendant's office or
regular place of business, or name of the officer of the
homeowners' association or condominium corporation or its
chief security officer in charge of the community or building
where the defendant may be found.
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You need to mention on whom you made the service to. all the
details, circumstances that would warrant a substituted service.
Otherwise, your substituted service will not be valid.
If there are spouses on the case, is it enough to serve on
only one of them?
When spouses are sued jointly, service of summons should be
made to each spouse individually. (Section 11, Rule 11)
Service of summons upon prisoners?
When the defendant is a prisoner confined in a jail or institution,
service shall be effected upon him or her by the officer having
the management of such jail or institution who is deemed as a
special sheriff for said purpose. The jail warden shall file a return
within five (5) calendar days from service of summons to the
defendant. (Section 8, Rule 14)
Who is the person-in-charge?
The Warden
Who makes the return?
The Warden within 5 calendar days from the service of
summons.
SERVICE OF SUMMONS TO AN ENTITY WITHOUT
JURIDICAL PERSONALITY
When persons associated in an entity without juridical
personality are sued under the name by which they are generally
or commonly known, service may be effected upon all the
defendants by serving upon any one of them, or upon the person
in charge of the office or place of business maintained in such
name. But such service shall not bind individually any person
whose connection with the entity has, upon due notice, been
severed before the action was filed. (Section 7, Rule 14)
When should he have severed his ties?
Before the action was filed and upon due notice.
If “X” is an incompetent, can you serve summons
personally to “X”?
YES. You need to serve summons personally to “X” as well as
serve summons to the guardian.
For minors, who would be the legal guardians?
When the defendant is a minor, insane or otherwise an
incompetent person, service of summons shall be made upon
him or her personally and on his or her legal guardian if he or
she has one, or if none, upon his or her guardian ad litem whose
appointment shall be applied for by the plaintiff. In the case of a
minor, service shall be made on his or her parent or guardian.
What if they don’t have a legal guardian?
It shall be served on the guardian ad litem whose appointment
shall be filed by the plaintiff
SERVICE OF SUMMONS UPON DOMESTIC PRIVATE
JURIDICAL ENTITY
When the defendant is a corporation, partnership or association
organized under the laws of the Philippines with a juridical
personality, service may be made on the president, managing
partner, general manager, corporate secretary, treasurer, or in-
house counsel of the corporation wherever they may be found,
or in their absence or unavailability, on their secretaries.
If such service cannot be made upon any of the foregoing
persons, it shall be made upon the person who customarily
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receives the correspondence for the defendant at its principal
office.
In case the domestic juridical entity is under receivership or
liquidation, service of summons shall be made on the receiver
or liquidator, as the case may be.
Should there be a refusal on the part of the persons
abovementioned to receive summons despite at least three (3)
attempts on two (2) different dates, service may be made
electronically, if allowed by the court, as provided under Section
6 of this Rule. (Section 12, Rule 14)
Is this an exclusive list limited to the given officers?
YES
Do they have to be in the office or in the principal place of
business to serve summons on them?
NO. The rules make it clear that it may be served wherever they
may be found.
Remedy if they are not available in the office?
Serve the summons upon the secretaries of such officers.
If the officers or secretaries are unavailable does that mean
we cannot serve summons?
NO. It may be made under substituted service.
If it is under liquidation or receivership, to whom should we
serve?
Service of summons shall be made on the receiver or liquidator,
as the case may be.
If all of these persons are not available what is your
remedy?
Electronic Mail
What if the counsel of the defendant makes a special
appearance to the court to assail the validity of the service
summons, what will the court do?
The Court will ask counsel to serve.
“Where the summons is improperly served and a lawyer makes
a special appearance on behalf of the defendant to, among
others, question the validity of service of summons, the counsel
shall be deputized by the court to serve summons on his or her
client.” (Section 13, Rule 14)
Note: a lot of delay because of raising lack of jurisdiction over
the person of the defendant. That is why it is not anymore a
among the grounds for a motion to dismiss, it is only an
affirmative defense.
SERVICE OF SUMMONS TO THE GOVERNMENT OR
PUBLIC CORPORATION
When the defendant is the Republic of the Philippines, service
may be effected on the Solicitor General; in case of a province,
city or municipality, or like public corporations, service may be
effected on its executive head, or on such other officer or officers
as the law or the court may direct. (Section 15, Rule 14)
You want to sue the City of Pasig to whom to we serve
summons?
The Mayor, who is the executive head.
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SERVICE OF SUMMONS ON FOREIGN PRIVATE ENTITY
REGISTERED AND DOING BUSINESS IN THE PHILIPPINES
When the defendant is a foreign private juridical entity which has
transacted or is doing business in the Philippines, as defined by
law, service may be made on its resident agent designated in
accordance with law for that purpose, or, if there be no such
agent, on the government official designated by law to that
effect, or on any of its officers, agents, directors or trustees
within the Philippines.
(Section 14, Rule 14)
If there is no agent?
If there be no agent, on the government official designated by
law to the effect, or on any of its officers, agents, directors or
trustees within the Philippines
SERVICE OF SUMMONS TO A PRIVATE FOREIGN
JURIDICAL ENTITY NOT REGISTERED IN THE PHILIPPINES
If the foreign private juridical entity is not registered in the
Philippines, or has no resident agent but has transacted or is
doing business in it, as defined by law, such service may, with
leave of court, be effected outside of the Philippines through any
of the following means:
a. By personal service coursed through the appropriate
court in the foreign country with the assistance of the
department of foreign affairs;
b. By publication once in a newspaper of general
circulation in the country where the defendant may be
found and by serving a copy of the summons and the
court order by registered mail at the last known address
of the defendant;
c. By facsimile;
d. By electronic means with the prescribed proof of
service; or
e. By such other means as the court, in its discretion, may
direct.
You want to file a complaint against Ang, you go to the
house of Ang to make your third demand to pay. But when
you went to the house of Ang, you were told that Ang moved
out. You researched where Ang was found and even asked
the help of the RTC. You posted a picture of Ang. Still, you
cannot find Ang. What is your remedy?
Leave of court by publication
If you do not know where the defendant resides or you do not
know the identity of the defendant publication is the proper
service but it is with leave of court.
In order to support your motion for leave of court, what
should be attached to your motion?
Affidavit that set forth the grounds for your application.
In service of summons by publication on a defendant
whose identity or whereabouts are unknown, does it matter
if it is in personam, in rem or quasi-in rem?
It does not because there is nothing in the rules that distinguish.
But if it is extraterritorial service of summon under Section 17 it
matters.
In section 16 it presupposes that it is not extraterritorial meaning
not outside the country. Because if it is outside the country the
proper remedy is either section 17 or 18.
Section 18: if he is a resident but is not in the country or is
temporarily out you follow section 18 which also refers to section
17.
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Section 17: If it is non-resident and not found in the Philippines
CASES INVOLVED IN EXTA-TERRITORIAL SERVICE
When the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the
plaintiff or relates to, or the subject of which is, property within
the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding the defendant from any
interest therein, or the property of the defendant has been
attached within the Philippines, service may, by leave of court,
be effected out of the Philippines by personal service as under
Section 6; or as provided for in international conventions to
which the Philippines is a party; or by publication in a newspaper
of general circulation in such places and for such time as the
court may order, in which case a copy of the summons and order
of the court shall be sent by registered mail to the last known
address of the defendant, or in any other manner the court may
deem sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60) calendar
days after notice, within which the defendant must answer.
(Section 17, Rule 14)
Where is the property located?
Property must be located within the Philippines
Do you need leave of court for extra-territorial service?
YES. When it involves status, such as nullity of case or quasi in
rem. So, if it is not quasi-in rem, the remedy is to convert it from
in personam to quasi-in rem by attaching the property such as
by a writ of attachment.
DIFFERENT MODES OF SERVICE
SECTION 5. Service in Person on Defendant. — Whenever
practicable, the summons shall be served by handing a copy
thereof to the defendant in person and informing the defendant
that he or she is being served, or, if he or she refuses to receive
and sign for it, by leaving the summons within the view and in
the presence of the defendant.
SECTION 6. Substituted Service. — If, for justifiable causes, the
defendant cannot be served personally after at least three (3)
attempts on two (2) different dates, service may be effected:
a. By leaving copies of the summons at the defendant's
residence to a person at least eighteen (18) years of
age and of sufficient discretion residing therein;
b. By leaving copies of the summons at the defendant's
office or regular place of business with some
competent person in charge thereof. A competent
person includes, but is not limited to, one who
customarily receives correspondences for the
defendant;
c. By leaving copies of the summons, if refused entry
upon making his or her authority and purpose known,
with any of the officers of the homeowners' association
or condominium corporation, or its chief security officer
in charge of the community or the building where the
defendant may be found; and
d. By sending an electronic mail to the defendant's
electronic mail address, if allowed by the court. (7a)
NOTE: The publication must be coupled with registered mail
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What if the court only allows extra-territorial service of
summons but only orders publication not coupled with
registered mail?
It falls under the last mode which is under other means as the
court may deem just.
Jurisprudence provides that one mode is publication coupled
with registered mail in the last known address. In one case
however, the court only ordered publication without registered
mail. It was assailed for being an improper mode of service of
summons. The Supreme Court ruled that it is valid falling under
the last mode which is “other means as the court may deem just”
So, if the court deems it sufficient only publication without
registered mail, it is valid falling under the last mode.
FILING OF RETURN
In thirty (30) calendar days from issuance of summons by the
clerk of court and receipt thereof, the sheriff or process server,
or person authorized by the court, shall complete its service.
Within five (5) calendar days from service of summons, the
server shall file with the court and serve a copy of the return to
the plaintiff's counsel, personally, by registered mail, or by
electronic means authorized by the Rules.
PROOF OF SERVICE
The proof of service of a summons shall be made in writing by
the server and shall set forth the manner, place, and date of
service; shall specify any papers which have been served with
the process and the name of the person who received the same;
and shall be sworn to when made by a person other than a
sheriff or his or her deputy.
If summons was served by electronic mail, a printout of said e-
mail, with a copy of the summons as served, and the affidavit of
the person mailing, shall constitute as proof of service.
(Section 21, Rule 14)
PROOF OF SERVICE OF PUBLICATION
The service has been made by publication, service may be
proved by the affidavit of the publisher, editor, business or
advertising manager, to which affidavit a copy of the publication
shall be attached and by an affidavit showing the deposit of a
copy of the summons and order for publication in the post office,
postage prepaid, directed to the defendant by registered mail to
his or her last known address. (Section 22, Rule 14)
VOLUNTARY APPEARANCE
The defendant's voluntary appearance in the action shall be
equivalent to service of summons. The inclusion in a motion to
dismiss of other grounds aside from lack of jurisdiction over the
person of the defendant shall be deemed a voluntary
appearance. (Section 23, Rule 14)
HAGUE SERVICE CONVENTION
(effectivity October 1, 2020)
COVERAGE OF THE HAUGE CONVENTION
The Hague Service Convention shall apply in the Philippines
provided the following conditions are present:
• A document is to be transmitted from one State Party
for service to another State Party;
• The address of the intended recipient in the receiving
State Party is known
• The document to be served is a judicial document; and
• The document to be served relates to a civil or
commercial matter
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GROUNDS FOR OBJECTION
The Central Authority may decline the request for service if it
does not comply with the provisions of the Hague Service
Convention, or when compliance with the request would infringe
upon its sovereignty or security.
CENTRAL AUTHORITY IN THE PHILIPPINES
Office of the Court Administrator (OCA)
FORWARDING AUTHORITY IN THE PHILIPPINES
All Justices and Clerk of Court of collegiate courts, and Judges
of lower courts.
OUTBOUND SERVICE
From the Philippines to Other State Parties
INBOUND SERVICE
From other State Parties to the Philippines
OUTBOUND REQUEST FOR SERVICE
Apply with the court by motion for leave for extra-territorial
service, and the court shall consider whether it is
necessary, what should accompany your motion for leave?
• A copy of the Model Form, including the Request,
Certificate, Summary of Documents to be Served, and
Warning
• The original documents to be served or certified true copies
thereof, including all annexes
• Certified translations of the Model Form and all
accompanying documents, where necessary;
• An undertaking to pay in full in any fees associated with the
service of the documents; and
• Any other requirements of the Requested State, taking into
account its reservations, declarations and notifications,
which may be found in the HCCH website.
Once the court finds extraterritorial service under the
Hague convention is proper and warranted the court will
issue an order. What directive should be included in the
order?
The Order shall include a directive to the requesting party to
procure and submit a prepaid courier pouch which shall be used
for the transmission of documents from the court to the Central
Authority of the Requested State.
What is the courier pouch for?
From where to where, whose central authority
After that your forwarding authority which would be the
judges would accomplish the Request using the Model
form. What is effect if fees and cost are not paid?
Failure to settle the fees in full, wherever necessary, shall be
ground for direct contempt of court, in addition to any other
sanction that the judge may impose in accordance with the
Rules of Court, as amended.
The Court will coordinate with whom?
Central Authority of the Requested State.
What will you transmit to the Central Authority of the
Requested State?
Once all the requirements are submitted by the party requesting
the extraterritorial service through the Hague Service
Convention, they shall coordinate with the Central Authority of
the Requested State and transmit the following:
• The Order granting the extraterritorial service;
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 • The filled-out Request and Summary of Document to
be Served with Warning;
• The blank Certificate (to be completed by the Central
Authority of the Requested State);
• The documents sought to be served; and
• Certified translations of the Model Form and all
accompanying documents, where necessary
The Court shall also furnish the OCA with a copy of the request
and shall update the OCA on the status of its request.
Documents are transmitted to the Central Authority of the
Requested State, what will you do next?
The Central Authority of the Requested State shall then process
the request and attempt service in accordance with its domestic
laws. It shall thereafter provide formal confirmation whether the
service was successful or unsuccessful, using the Certificate
annexed to the Hague Service Convention. The completed
Certificate shall thereafter be transmitted back to the requesting
court, and shall form part of the records of the case.
What rules of service do we follow?
Domestic Laws of Service of the foreign country.
Then they will make a certificate to be transmitted to the
requesting party.
IN BOUND REQUEST FOR SERVICE
Referred to what entity in the Philippines?
OCA
Requirements for the Request for service of documents
from other State Party?
• The document sought to be served are judicial;
• The Request conforms with the Model Form;
• The document sought to be served is attached to the
Request;
• The request and its attachment are
accomplished/translated in English or Filipino;
• The Request and its attachment/s are filed in duplicate; and
• The address of the intended recipient is indicated with
sufficient specificity. As much as practicable, it shall include
the house number, building, street name, barangay,
municipality/city, province and zip code. Post office boxes
shall not be allowed.
Can it be an address of Post Office Box?
NO. It is not allowed
How much are the fees?
All requests must be accompanied by payment of One Hundred
U.S. Dollars (US$100.00) for costs of service for each recipient
to be served. For multiple recipients residing in the same
address, only one fee shall be paid.
Should cost for the service of document exceed the said
amount, the OCA shall send an updated Statement of Cost to
the Forwarding Authority of the Requesting State for payment.
Payment methods shall be posted on the OCA website and
official receipts shall be issued upon verification of payment and
a copy shall be sent to the applicant immediately.
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What if there are 5 persons to be served but in the same
residence, should they pay 5 $100?
NO. For multiple recipients residing in the same address only
one fee should be paid.
If they are from different addresses should they pay 5 $100?
YES
How do you transmit the request to the OCA?
The request shall be transmitted, together with the documents,
including proof of payment to the OCA through any of the
following modes:
• Electronic transmission via email: PHCA-
Service@judiciary.gov.ph
• Physical transmission via registered mail or
courier services to: Office of the Court Administrator
, Supreme Court of the Philippines, Third Floor, Old
Supreme Court Building, Padre Fauna Street, Ermita,
Manila 1000
How is physical transmission made?
Registered mail or courier service.
If there is failure to comply can our OCA inform the
requesting state and inform them of the deficiency to give
them time to comply?
Should the request, upon evaluation of the OCA, :
• fails to comply with any of the above-mentioned
requirements, or
• there are objections for the execution of the request,
the OCA shall inform the Forwarding Authority specifying the
objection/s thereto.
If the objections are resolved, the processing of the request shall
proceed. Otherwise, the request shall be denied and all
documents relating thereto shall be returned to the Forwarding
Authority, along with a notice of objection or denial, stating the
reasons therefor.
If the request is sufficient in form what will happen next?
When the request should be sufficient in form, the OCA shall
forward the request to the court having jurisdiction over the area
where the intended recipient resides.
Requests sent via email shall be transmitted to the official e-mail
accounts of the court concerned.
How will we make the service in accordance with foreign
law or in accordance with our Rules of Court?
In accordance with our Rules of Court.
DUTY OF EXECUTIVE/PRESIDING JUDGE
The Executive Jude in Muliitple-sala courts, or the Presiding
Judge in single-sala courts, shall immediately assign a sheriff,
process server, or any other competent personnel to serve the
document in accordance with the Rules of Court.
Requests transmitted via email shall be printed by the court
concerned. The judge shall ensure that service is done in
accordance with these Guidelines and the Rules of Court.
Once service is completed or not completed, how will you
do the report?
RETURN ON THE SERVICE. The officer assigned to serve the
document shall execute a return on the service in accordance
with the Rules of Court and submit the same to the judge of the
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court who directed the service of the document within five (5)
days from service.

CONTENTS OF THE SERVICE. The return shall state that the

document and attachment/s have been served, and shall include
the method, the place and the date of service and the person to
whom the document was delivered.

UNSUCCESSFUL SERVICE: if the document was not delivered

successfully, the return shall state the reasons which prevented
the successful service. The officer assigned shall deliver the
unserved document to the court, so that it may later be returned
to the Forwarding authority.

CERTIFICATE
As soon as the return on the service is submitted, whether the
service is successful or not, the judge shall immediately
accomplish and sign the Certificate, following the Model Form
annexed to the Hague Service Convention.

In cases of unsuccessful service, the documents sought to be

served shall be attached to the Certificate.

TRANSMISSION TO THE REQUESTING STATE

Within thirty (30) calendar days from receipt of the request, the
judge shall transmit the duly-accomplished Certificate and
Return of Service to the Forwarding Authority of the Requesting
State.

These shall be accompanied by a copy of the documents

served, in case of successful service. The judge shall furnish the
OCA with the copy of all documents transmitted. The judge shall
furnish the OCA with a copy of all the documents transmitted,
for monitoring purposes. Should compliance exceed thirty (30)
calendar days, the judge shall also submit an explanation to the
OCA for the delay.

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 OUTBOUND REQUEST OF SERVICE INBOUND REQUEST OF SERVICE

APPLICATION REQUEST FOR SERCIVE

by leave of court Judicial documents originating
from other parties shall be
referred to OCA.

NOT
Court will determine if WARRANTED COST OF SERVICE
extraterritorial service is warranted Deny EXCEEDS
Application PAYMENT OF COSTS OCA will send an
US$100.00 for costs of service
updated Statement of
for each recipient to be served.
Cost to the FA of the
Requesting State
WARRANTED:
V
Execute an Order to that effect. The
order shall include a directive to the TRANSMISSION OF
requesting party to procure and FAILS TO COMPLY
REQUEST WITH
submit a prepaid courier pouch The Forwarding Authority of the REQUIREMENT OR
Requesting State from which THERE ARE
the originated shall transmit the OBJECTIONS
request to the OCA

Forwarding Authorities
Judges, in lower courts, or Justice
and Clerk of Court of collegiate courts OCA shall inform the
ACCOMPLISH and SIGN the SUFFICIENT IN FORM FA of the objections
REQUEST using the Model Form thereto.

FORWARDING TO EXECUTIVE
Payment of Fees JUDGE/PRESIDING JUDGE RESOLVED DENIED
OCA shall forward the request to
the court having jurisdiction over
the area where the intended
recipient resides

Transmission of Documents All documents

Once all the requirements are submitted relating thereto
by the court shall coordinate with the shall be
Central authority of the Requested DUTY OF returned to the
State. The court shall furnish the OCA EXECUTIVE/PRESIDING FA with notice
with the copy of the request and update JUDGE of objection or
the OCA on the status of the request Assign a sheriff, process server,
denial
or any other competent
personnel to serve the
document in accordance with
the ROC.

EXECUTION OF REQUEST
The Central Authority of the Requested
State shall process the request and
attempt service in accordance with the NOT DELIVERED
Domestic Law of the Foreign Country RETURN OF SERVICE
The officer assigned
Officer assigned shall return
shall deliver the
on the service and submit to
unserved document to
the judge the document within
the court
5 days from service.

DELIVERED CERTIFICATION

TRANSMISSTION TO
REQUESTING STATE WITHIN 30
DAYS

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 RULE 15
MOTIONS
MOTION
A motion is an application for relief other than by a pleading.
Should all motions be in writing?
All motions shall be in writing except those made in open court
or in the course of a hearing or trial.
If a motion is made orally in open court, what should the
court do?
A motion made in open court or in the course of a hearing or trial
should immediately be resolved in open court, after the adverse
party is given the opportunity to argue his or her opposition
thereto.
When a motion is based on facts not appearing on record, the
court may hear the matter on affidavits or depositions presented
by the respective parties, but the court may direct that the matter
be heard wholly or partly on oral testimony or depositions.
CONTENTS OF A MOTION
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.
What should accompany your motion?
Supporting affidavits
NON-LITIGIOUS MOTIONS
Motions which the court may act upon without prejudicing the
rights of the adverse parties.
EXAMPLE OF LITIGIOUS MOTION
a) Motion for the issuance of an alias summons;
b) Motion for extension to file answer;
c) Motion for postponement;
d) Motion for the issuance of a writ of execution;
e) Motion for the issuance of an alias writ of execution;
f) Motion for the issuance of a writ of possession;
g) Motion for the issuance of an order directing the sheriff
to execute the final certificate of sale; and
h) Other similar motions.
Is the list EXCLUSIVE?
NO. The last paragraph provides that it includes other similar
motions.
Should we set Non-litigious for hearing?
Non-litigious motions shall not be set for hearing and shall be
resolved within five (5) calendar days from receipt thereof.
LITIGIOUS MOTIONS
1) Motion for bill of particulars;
2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has been
filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of
demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
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11) Motion for summary judgment;
12) Demurrer to evidence;
13) Motion to declare defendant in default; and
14) Other similar motions.
Is it mandatory that all motions that are litigious motions
should be set for hearing?
Discretionary of the court
What will happen when you file a litigious motion?
The opposing party shall file his or her opposition to a litigious
motion within five (5) calendar days from receipt thereof. No
other submissions shall be considered by the court in the
resolution of the motion.
The motion shall be resolved by the court within fifteen (15)
calendar days from its receipt of the opposition thereto, or upon
expiration of the period to file such opposition.
Period to resolve?
Fifteen (15) Calendar days from receipt of the opposition or upon
the expiration of the period to file such opposition
EFFECT OF FAILURE TO SERVE LITIGIOUS MOTION TO
THE OTHER PARTY
The Court will not act on your motion if you do not serve motion
to the other party.
OMNIBUS MOTION RULE
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. (Section 9, Rule 15)
MOTION DAY
Except for motions requiring immediate action, where the court
decides to conduct hearing on a litigious motion, the same shall
be set on a Friday. (Section 8, Rule 15)
PROHIBITED MOTIONS
The following motions shall not be allowed:
a. Motion to dismiss except on the following grounds:
a. That the court has no jurisdiction over the subject
matter of the claim;
b. That there is another action pending between the
same parties for the same cause; and
c. That the cause of action is barred by a prior
judgment or by the statute of limitations.
b. Motion to hear affirmative defenses;
c. Motion for reconsideration of the court's action on the
affirmative defenses;
d. Motion to suspend proceedings without a temporary
restraining order or injunction issued by a higher court;
e. Motion for extension of time to file pleadings, affidavits or
any other papers, except a motion for extension to file an
answer as provided by Section 11, Rule 11; and
f. Motion for postponement intended for delay, except if it is
based on acts of God, force majeure or physical inability of
the witness to appear and testify. If the motion is granted
based on such exceptions, the moving party shall be
warned that the presentation of its evidence must still be
terminated on the dates previously agreed upon.
A motion for postponement, whether written or oral, shall, at all
times, be accompanied by the original official receipt from the
office of the clerk of court evidencing payment of the
postponement fee under Section 21 (b), Rule 141, to be
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submitted either at the time of the filing of said motion or not later
than the next hearing date. The clerk of court shall not accept SUMMARY:
the motion unless accompanied by the original receipt. ACTION ON AFFIRMATIVE DEFENSES
(Section 12, Rule 15) GRANTED DENIED
NATURE
DIFFERENCE ON THE ACTION OF DEFENSE JUDGEMENT ON THE INTERLOCUTORY ORDER
If the affirmative defense is granted, can you file a motion MERITS – the granting of the – does not terminate nor
for reconsideration on the ruling of the court? court of the affirmative finally dispose of the case.
If your affirmative defenses are granted it will result to a defenses results to
dismissal of the case. DISMISSAL of the case. The
dismissal of the case is
Can the dismissal be the subject of an MR? already a judgement on the
YES. The dismissal is already a judgement on the merits. merits of the case.
There is nothing left to be It leaves something to be
If you have an action on affirmative defense and the court done done by the court before the
DENIES the affirmative defense, is it a judgement? case is finally decided on the
NO. It is an interlocutory order. An interlocutory order leaves merits.
something else to be done in a proceeding. If it is a judgement, MOTION FOR RECONSIDERATION
it leaves nothing else it to be done in the proceedings. Allowed NOT Allowed
APPEAL
If you have an order than denies your affirmative defense, that Allowed Allowed AFTER judgement
is an interlocutory order which is NEVER subject to an Appeal. is rendered.
Generally, you can assail an interlocutory order by filing an MR
REMEDY
or a certiorari, after your MR is denied if there is GADALEJ.
File a Motion for Proceed to trial of thecase.
Reconsideration (MR)
However, under this rule, specifically if it is an affirmative
defense you cannot file an MR. Neither can you file a prohibition,
If MR is DENIED, file an After judgement is rendered
mandamus, certiorari. The remedy is to proceed to trial, and only
appeal assailing that there is on the case, you can file an
after judgement has been rendered can you appeal it, then you
grave abuse of discretion appeal on the judgement.
raise your affirmative defenses as grounds for error in the
judgement in your appeal.
MOTION FOR EXTENSION OF TIME
The action of the court on your affirmative defenses:
DENIAL – CANNOT MR, or APPEAL because it is interlocutory It is only allowed for extension of filing an Answer.
order
MOTION FOR POSTPONEMENT
GRANTED results to dismissal, the dismissal is not a ruling on It is allowed when it is based on acts of God, force majeure or
physical inability of the witness to appear and testify. If the
the affirmative defense because it is separate.
motion is granted based on such exceptions, the moving party
If the court says granting the affirmative defense and dismissing shall be warned that the presentation of its evidence must still
be terminated on the dates previously agreed upon.
the case, it is not merely an interlocutory order because there is
dismissal of the case. In this instance, there is nothing left to be
Do you need to pay for postponement fees?
done because it is a judgement. As such, the remedy can be an
MR because you are not assailing merely an action on the YES
affirmative defense. You are already assailing a judgement.
DISMISSAL WITH PREJUDICE
Subject to the right of appeal, an order granting a motion to
dismiss or an affirmative defense that the cause of action is
barred by a prior judgment or by the statute of limitations; that
the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned or otherwise extinguished; or that the
claim on which the action is founded is unenforceable under the
provisions of the statute of frauds, shall bar the refiling of the
same action or claim. (Section 13, Rule 14)

What is your remedy if it is a dismissal with prejudice?

Appeal

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 RULE 17
DISMISSAL OF ACTIONS
There can be a motion to dismiss under Rule 9, Section 1. There
can also be dismissal motu proprio if there is grounds thereof
that exists, whether it is during pre-trial or at any stage when it
becomes apparent from the evidence on record based on the
grounds provided for under Rule 9.
DISMISSAL BY NOTICE OF THE 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.
Is this dismissal with or without prejudice?
Without prejudice UNLESS otherwise stated in the notice.
DISMISSAL UPON THE MOTION OF THE PLAINTIFF
Except as providing 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 or her of the plaintiff's
motion for dismissal, the dismissal shall be limited to the
complaint. The dismissal shall be without prejudice to the right
of the defendant to prosecute his or her counterclaim in a
separate action unless within fifteen (15) calendar days from
notice of the motion he or she manifests his or her preference to
have his or her counterclaim resolved in the same action. Unless
otherwise specified in the order, a dismissal under this
Paragraph shall be without prejudice. A class suit shall not be
dismissed or compromised without the approval of the court.
(2a)
If there is dismissal upon the motion of the plaintiff, does
this mean that the counterclaim’s will always be dismissed?
NO. If the counterclaim was pleaded by the defendant prior to
the service to him, the dismissal is limited to the complaint.
When will it be dismissal upon motion or dismissal by
notice?
Before service of the answer or a motion for summary
judgement.
DISMISSAL DUE TO THE FAULT OF THE PLAINTIFF
If, for no justifiable cause, the plaintiff fails to appear on the date
of the presentation of his or her evidence in chief on the
complaint, or to prosecute his or her action for an unreasonable
length of time, or to comply with these Rules or any order of the
court, the complaint may be dismissed upon motion of the
defendant or upon the court's own motion, without prejudice to
the right of the defendant to prosecute his or her counterclaim in
the same or in a separate action. This dismissal shall have the
effect of an adjudication upon the merits, unless otherwise
declared by the court.
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR
THIRD-PARTY COMPLAINT
The provisions of this Rule shall apply to the dismissal of any
counterclaim, cross-claim, or third-party complaint. A voluntary
dismissal by the claimant by notice as in Section 1 of this Rule,
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shall be made before a responsive pleading or a motion for
summary judgment is served or, if there is none, before the
introduction of evidence at the trial or hearing.
RULE 18
PRE-TRIAL
PRE-TRIAL
A pre-trial is conducted after the last responsive pleading has
been served and filed, the branch clerk of court shall issue,
within five (5) calendar days from filing, a notice of pre-trial which
shall be set not later than sixty (60) calendar days from the filing
of the last responsive pleading.
PURPOSE OF PRE-TRIAL
The pre-trial is mandatory and should be terminated promptly.
The court shall consider:
a. The possibility of an amicable settlement or of a submission
to alternative modes of dispute resolution;
b. The simplification of the issues;
c. The possibility of obtaining stipulations or admissions of
facts and of documents to avoid unnecessary proof;
d. The limitation of the number and identification of witnesses
and the setting of trial dates;
e. The advisability of a preliminary reference of issues to a
commissioner;
f. The propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action should a
valid ground therefor be found to exist;
g. The requirement for the parties to:
a. Mark their respective evidence if not yet marked in
the judicial affidavits of their witnesses;
b. Examine and make comparisons of the adverse
parties' evidence vis-a-vis the copies to be
marked;
c. Manifest for the record stipulations regarding the
faithfulness of the reproductions and the
genuineness and due execution of the adverse
parties' evidence;
d. Reserve evidence not available at the pre-trial, but
only in the following manner:
i. For testimonial evidence, by giving the
name or position and the nature of the
testimony of the proposed witness;
ii. For documentary evidence and other
object evidence, by giving a particular
description of the evidence.
No reservation shall be allowed if not
made in the manner described above,
h. Such other matters as may aid in the prompt disposition of
the action.
The failure without just causes of a party and counsel to appear
during pre-trial, despite notice, shall result in a waiver of any
objections to the faithfulness of the reproductions marked, or
their genuineness and due execution.
The failure without just causes of a party and/or counsel to bring
the evidence required shall be deemed a waiver of the
presentation of such evidence.
The branch clerk of court shall prepare the minutes of the pre-
trial, which shall have the following format: (See prescribed
form)
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Do you just say we will introduce 5 witnesses. Is this
sufficient?
The rules require that you identify the witnesses so it is not
enough that you just say you will introduce five witnesses. You
need to identify who are these witnesses.
They will also set the pre-trial dates already. So, there is already
a schedule on when the parties will present their evidence.
Advisability of preliminary reference to a commissioner.
Propriety of rendering judgement on the pleading or summary
judgement thereto or dismissing the action if there is ground.
NOTE: Pre-Trial does NOT include affidavits. This is because
Judicial affidavits are already attached in the pleading the
asserts the claim and defense.
We do not follow the JA rule that you submit it during trial but
rather when you already file a pleading asserting a claim or
defense such as your complaint, answer, counterclaim. That is
where you attach the judicial affidavits.
REQUIREMENTS OF THE PARTIES AS TO EVIDENCE
First, Mark it if it is not marked in the judicial affidavit then you
examine and compare.
It means that if there is a photocopy, you bring your original and
photocopy to the other party. So that they can compare if the
photocopy is a faithful reproduction of the original and they will
stipulate that it is genuine and faithful reproduction of the
original.
If they do not stipulate, the party needs to prove it in court that it
is genuine and a faithful reproduction.
NOTE: Under Section 6, Rule 6 attached to the pleading
asserting a claim or defense should be the judicial affidavits and
if you do not do so, you cannot present them later on subject to
meritorious exceptions. So, under pre-trial, it allows you to make
a reservation to present witnesses and exhibits later on that is
not mentioned in the pre-trial.
How do you make a RESERVATION?
You do not just say “Mr. X”. You have to say “Mr. X testifying to
prove the existence of the loan.”
You need to state the purpose.
In the past, you present 10 witnesses who testifies the same
thing. The court needs to know what is the purpose of the
testimony so that they can limit it. Rather than having 10
corroborating witnesses, the court can say “no we will only allow
just one because they are presenting the same thing”
RESERVATION ON DOCUMENTARY EVIDENCE
You need to specify it. If you fail to make a specification, then no
reservation will be allowed
WHO ISSUES A NOTICE OF PRE-TRIAL?
Clerk of Court for a period 60 calendar days from the filing of the
last responsive pleading.
APPEARANCE OF PARTIES
It shall be the duty of the parties and their counsel to appear at
the pretrial, court-annexed mediation, and judicial dispute
resolution, if necessary. The non-appearance of a party and
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counsel may be excused only for acts of God, force majeure, or
duly substantiated physical inability.
A representative may appear on behalf of a party, but must be
fully authorized in writing to enter into an amicable settlement,
to submit to alternative modes of dispute resolution, and to enter
into stipulations or admissions of facts and documents.
CONSEQUENCES OF FAILURE TO ATTEND PRE-TRIAL
PLAINTIFF FAILURE TO ATTEND
When duly notified, the failure of the plaintiff and counsel to
appear without valid cause when so required, pursuant to the
next preceding Section, shall cause the dismissal of the action.
The dismissal shall be with prejudice, unless otherwise ordered
by the court. (Section 5, Rule 18)
Plaintiff – with prejudice unless otherwise ruled upon by the
court without prejudice to the counter-claims.
DEFENDANT FAILURE TO ATTEND
A similar failure on the part of the defendant and counsel shall
be cause to allow the plaintiff to present his or her evidence ex
parte within ten (10) calendar days from termination of the pre-
trial, and the court to render judgment on the basis of the
evidence offered. (Section 5, Rule 18)
If you will present evidence ex-parte that is no longer a judgment
on the pleadings because there is trial you are presenting
evidence.
The Court will render judgement after presenting evidence ex-
parte. “Ex-parte” means without the participation of the other
party. So the other party will be entitled to the notice of the
proceedings but he cannot present evidence. But it does not
follow that you will win the case because the court will still
determine whether you were able to establish by preponderance
of evidence.
Does the same rule with respect to failure to file and serve
your PRE-TRIAL brief?
YES. It has the same effect as failure to appear.
FAILURE TO FILE A PRE-TRIAL BRIEF
Failure to file the pre-trial brief shall have the same effect as
failure to appear at the pre-trial.
What about in the court annex mediation in the JDR when
applicable, attendance is required. Is the consequence of
failure to attend the same as the failure to appear in the pre-
trial?
YES
PERIOD OF PRE-TRIAL BRIEF
3 calendar days before the Pre-Trial
Should it also be served 3 days before the pre-trial?
Yes, to the Court and the adverse party.
Pre-trial is on October 12 (Monday), you filed by registered
mail on October 9 your pre-trial brief, did you comply with
the period to file three days before?
YES. The date of filing is the date of mailing.
If you also served by Registered Mail on October 9, does it
comply?
NO. The service must be done three days before the pre-trial.
Service is completed UPON ACTUAL RECEIPT, in this case,
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when you mailed it on October 9, the party will not receive. In
which case there is failure to file and serve the pre-trial brief and
you are subjected to the consequences of such failure.
In this case, there is no actual receipt or notice of the from the
post-master. Therefore, there is failure to comply with the
service of the pre-trial brief.
SERVICE BY REGISTERED MAIL
In service by registered mail, it is not the date of mailing that is
the date of service but it is when it COMPLETELY DELIVERED
which is the date of actual receipt or in the case of registered
mail after the lapse of 5 days from the notice of the post-
master.
CONTENTS OF A PRE-TRIAL BRIEF
The Contents of a pre-trial brief shall be the following:
a. A concise statement of the case and the reliefs prayed
for;
b. A summary of admitted facts and proposed stipulation
of facts;
c. The main factual and legal issues to be tried or
resolved;
d. The propriety of referral of factual issues to
commissioners;
e. The documents or other object evidence to be marked,
stating the purpose thereof;
f. The names of the witnesses, and the summary of their
respective testimonies; and
g. A brief statement of points of law and citation of
authorities.
CONTENTS OF THE PRE-TRIAL ORDER
Upon termination of the pre-trial, the court shall issue an order
within ten (10) calendar days which shall recite in detail the
matters taken up. The order shall include:
a. An enumeration of the admitted facts;
b. The minutes of the pre-trial conference;
c. The legal and factual issue/s to be tried;
d. The applicable law, rules, and jurisprudence;
e. The evidence marked;
ONE DAY EXAMINATION RULE
Adherence to the one-day examination of witness rule shall be
required where the witness shall be fully examined in one day
only, subject to the court’s discretion during the trial on whether
or not to extend the examination for justifiable reason.
MOST IMPORTANT WITNESS RULE
Where no settlement has been effected, the court shall follow
the Most Important Witness Rule, where the court shall
determine the most important witness, limit the number of such
witnesses and require the parties and/or counsels to submit to
the branch of clerk of court the names, addresses, and contact
numbers of the witnesses to be summoned by subpoena. Note,
however, the court may also refer the case to a trial by
commissioner under Rule 32.
POSTPONEMENT OF A PRE-TRIAL
Postponement of presentation of the parties' witnesses at a
scheduled date is prohibited, except if it is based on acts of God,
force majeure or duly substantiated physical inability of the
witness to appear and testify. The party who caused the
postponement is warned that the presentation of its evidence
must still be terminated within the remaining dates previously
agreed upon.
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NOTE: You can also ask for postponement during trial to reset
the case.
FAILURE TO APPEAR AFTER POSTPONEMENT
Should the opposing party fail to appear without valid cause
stated in the next preceding paragraph, the presentation of the
scheduled witness will proceed with the absent party being
deemed to have waived the right to interpose objection and
conduct cross-examination.
Let us say that the plaintiff is given three dates: October 14,
November 14, December 14, within which to present its
evidence as stipulated in the pre-trial order. On October 14,
the witness is still in the COVID center, you asked for
postponement, does that mean that the court will give you
an additional day to present evidence?
NO, the court will not because it will still terminate in accordance
with the remaining dates to plead upon. So, it will not be
extended when you ask for a postponement provide that it is
warranted.
The Pre-trial Order is very important because it will govern the
proceedings in the case. Everything is limited by the pre-trial
order.
If the issue is not raised in the complaint, you can agree on the
issue in your pre-trial as an issue added to those on the
pleadings upon the agreement of the parties.
When you go to trial, every time you go to a hearing, you should
always have with you the complaint, answer and pre-trial order
so that everything they seek to present for evidence that is
outside the pre-trial order, you need to object it otherwise it
would be deemed a waiver.
For instance, the witnesses, if he is not among the list in the pre-
trial order you object to it if they try to present him as a witness.
The pre-trial order also mentions that the Court can render
judgment after pre-trial.
• It can be a judgement on the pleadings – because
the parties can make stipulations on facts. The parties
will agree on facts and then it will not be an issue
anymore. If they agree on so many things and there is
no issue left, the court can then render Judgement on
the pleadings without trial.
• Summary judgement – if based on the stipulations
agreed upon by the parties and it appears that there is
no genuine issue, the court can render summary
judgement.
• Dismissal of the case - Under Rule 9, if it appears on
the records, or in evidence, or the documents
presented, the court can dismiss case.
PRE-TRIAL SHORTENS THE PROCEEDINGS
The pre-trial will also shorten the proceedings.
For example, if the parties stipulate that there is a contract of
loan but the only issue left is the amount of the loan. In this
instance, it will shorten the trial because it lessens the amount
of evidence you need to present. You don’t need to ask
questions on the existence of the contract of loan. You don’t
need to anymore prove that there is a loan between the parties
because it is admitted. The only thing needed to be proven is
the amount of loan.
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When the parties already agree that there is a loan, it is already
a judicial admission. An admission made by the parties in the
course of the proceedings, they stipulated on it and therefore
you do not need to present evidence on the matter and shorten
the proceedings. The more stipulations the shorter the
proceedings.
IN RELATION TO RULES OF EVIDENCE
Under the rules of evidence, the original documents must be
presented otherwise the document will not be admissible.
HOWEVER, if the other party stipulates that the photocopy that
you have is an authentic document then that will be admissible
without you presenting an original document.
COURT-ANNEXED MEDIATION
After pre-trial and, after issues are joined, the court shall refer
the parties for mandatory court-annexed mediation.
The period for court-annexed mediation shall not exceed thirty
(30) calendar days without further extension.
(Section 8, Rule 18)
What happens first the pre-trial proper or the court annexed
mediation?
Pre-trial first then it will be referred to the court-annexed
mediation.
Is it the judge who resides over the Court Annexed
Mediation?
NO. It is only a mediator. He will only assist the parties into
coming to an agreement.
Is Court Annexed Mediation MANDATORY?
YES
PERIOD OF COURT ANNEXED MEDIATION
30 Calendar Days.
JUDICIAL DISPUTE RESOLUTION
Only if the judge of the court to which the case was originally
raffled is convinced that settlement is still possible, the case may
be referred to another court for judicial dispute resolution. The
judicial dispute resolution shall be conducted within a non-
extendible period of fifteen (15) calendar days from notice of
failure of the court-annexed mediation.
If judicial dispute resolution fails, trial before the original court
shall proceed on the dates agreed upon.
All proceedings during the court-annexed mediation and the
judicial dispute resolution shall be confidential. (Section 9)
Judicial Dispute Resolution mandatory at all times?
NO. It is only discretionary on the court.
When will the court order JDR?
Only when the court is convinced that settlement is still possible
Who shall preside over the JDR, a different JDR judge or a
judge whom the case is raffled?
It can be to the judge whom the case is raffled and it may be
referred to another court.
PERIOD FOR JUDICIAL DISPUTE RESOLUTION
15 Calendar Days. Not extendible.
The court will only order JDR if the court where the case is raffled
is convinced that settlement may be possible.
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RATIONALE: mediation in JDR was started with the purpose of
ending litigation. There are two stages of possibilities wherein
the parties will agree on a settlement.
JUDGMENT AFTER PRE-TRIAL
Should there be no more controverted facts, or no more genuine
issue as to any material fact, or an absence of any issue, or
should the answer fail to tender an issue, the court shall, without
prejudice to a party moving for judgment on the pleadings under
Rule 34 or summary judgment under Rule 35, motu proprio
include in the pre-trial order that the case be submitted for
summary judgment or judgment on the pleadings, without need
of position papers or memoranda. In such cases, judgment shall
be rendered within ninety (90) calendar days from termination of
the pre-trial.
The order of the court to submit the case for judgment pursuant
to this Rule shall not be the subject to appeal or certiorari.
RULE 19
INTERVENTION
INTERVENTION
Intervention is a remedy by which a third party, not originally
impleaded in the proceedings, becomes a litigant therein to
enable him, her or it to protect or preserve a right or interest
which may be affected by such proceedings.
WHO CAN 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 to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an
officer thereof may, with leave of court, be allowed to intervene
in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the
rights of the original parties, and whether or not the intervenor's
rights may be fully protected in a separate proceeding.
(Section 1, Rule 19)
GROUNDS TO INTERVENE
• A person has a legal interest in the matter in litigation, or in
the success of either of the parties, or an interest against
both
• A person is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of
the court or of an officer
Is it a matter of right to intervene? What is required?
NO. It is subject to judicial discretion. You must file a motion for
leave to intervene
The court shall consider the following:
• Whether or not the intervention will unduly delay or
prejudice adjudication of the right of the original parties
• Whether or not the intervenor’s right may be fully protected
in a separate proceeding
When you file a motion for leave to intervene, do you
already attach your complaint or answer in intervention?
YES. A copy of the pleading-in-intervention shall be attached to
the motion and served on the original parties.
NOTE: the complaint will be called a complaint-in-intervention,
and the answer will be an answer-in-intervention.
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What should the court consider in deciding on whether or
not the intervention will be granted leave?
YES, Whether or not the rights can be fully protected in a
separate proceedings. In other words, file a separate case
because your rights will be protected in a separate action and if
you are allowed to intervene in this case, it will only unduly delay
the case.
When can you make an intervention?
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
Can you make an intervention for the first time on appeal?
NO. It must be made before the judgement of the trial court.
Intervention is not a matter of right, but is left to the trial court's
sound discretion. The trial court must not only determine if the
requisite legal interest is present, but also take into
consideration the delay and the consequent prejudice to the
original parties that the intervention will cause. Both
requirements must concur, as the first requirement on legal
interest is not more important than the second requirement that
no delay and prejudice should result. To help ensure that delay
does not result from the granting of a motion to intervene, the
Rules also explicitly say that intervention may be allowed only
before rendition of judgment by the trial court.
If you have an indispensable party who seeks to intervene
on appeal, will this be allowed for the first time on appeal
even after rendering judgement by the trial court?
You cannot have a valid judgement without impleading the
indispensable parties.
The rule that you cannot allow intervention after judgement is
rendered is subject to the exceptions. The EXCEPTIONS are:
• When it is an indispensable party
• When it is the State that is intervening and there are
transcendental reasons or exceptional circumstances as
justice may require provided that there is no previous
waiver to intervene. Such that if they already had notice of
the proceedings ahead of time, like the State already knew
of it but they did not intervene before judgement, it is a
waiver. Such as when they receive notices of the pending
case. But in the absence of that they can intervene in
exceptional circumstances, transcendental importance on
the first time of appeal.
RULE 21
SUBPOENA
SUBPOENA
Subpoena is a process directed to a person requiring him or her
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 or her deposition. It may also require him or her to
bring with him or her any books, documents, or other things
under his or her control, in which case it is called a subpoena
duces tecum. (RULE 21, Section 1)
Example of a competent authority issuing a subpoena
Prosecutor issuing a subpoena requiring the respondent to file
a counter-affidavit in preliminary investigation.
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Who issues the subpoena?
The subpoena may be issued by the following:
a. The court before whom the witness is required to
attend;
b. The court of the place where the deposition is to be
taken;
c. The officer or body authorized by law to do so in
connection with investigations conducted by said
officer or body; or
d. Any Justice of the Supreme Court or the Court of
Appeals in any case or investigation pending within the
Philippines
If you are going to ask for a subpoena to a prisoner what is
the duty of the court?
When an application for a subpoena to a prisoner is made, the
judge or officer shall examine and study carefully such
application to determine whether the same is made for a valid
purpose.
If the prisoner is sentenced to reclusion perpetua, life
imprisonment and death, can he be released?
NO. Unless there is an order from the Supreme Court.
“No prisoner sentenced to death, reclusion perpetua or life
imprisonment and who is confined in any penal institution shall
be brought outside the penal institution for appearance or
attendance in any court unless authorized by the Supreme
Court.”
CONTENTS OF A SUBPOENA
A subpoena shall state the name of the court and the title of the
action or investigation, shall be directed to the person whose
attendance is required, and in the case of a subpoena duces
tecum, it shall also contain a reasonable description of the
books, documents or things demanded which must appear to
the court prima facie relevant.
GROUNDS OF QUASHING A SUBPOENA DUCES TECUM
The court may quash a subpoena duces tecum upon motion
promptly made and, in any event, at or before the time specified
therein:
• if it is unreasonable and oppressive, or
• the relevancy of the books, documents or things does
not appear, or
• if the person in whose behalf the subpoena is issued
fails to advance the reasonable cost of the production
thereof.
EFFECT SERVICE OF SUBPOENA
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. The service must be made so as to allow the witness
a reasonable time for preparation and travel to the place of
attendance.
How do you effect service? Is it in accordance with Rule 13
or Rule 14?
Rule 14
Example: Subpoena duces tecum The case is for collection of
money, but you are asking to subpoena the love letters between
the plaintiffs and defendants.
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GROUNDS TO QUASH A SUBPOENA AD TESTIFICATUM
The court may quash a subpoena ad testificandum on the
ground that the witness is not bound thereby.
NOTE: In either case (subpoena duces tecum and subpoena ad
testificatum), 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.
If you are seeking for a deposition of a witness can you
apply for the subpoena before obtaining notice or request
for deposition?
NO. Secure first the deposition before the subpoena.
What do you mean by kilometrege fees?
The kilometrege fees are those fees charged when the witness
is found beyond 100 kilometers.
If it exceeds 100 kilometers, is the witness required to
attend the distance?
NO
Witness fees, does that mean that you are paying someone
to be a witness? Isn’t that unlawful?
Expense that they will incur such as for missing work that day.
If the witness does not reside within 100km, he received the
subpoena but he did not attend?
The Court can order for the arrest of the witness, which is called
a Bench Warrant. When the attendance is required, and they did
not attend, the court can issue a bench warrant and then they
can arrest the witness.
Other consequences of failure to attend?
In case of failure of a witness to attend, the court or judge issuing
the subpoena, upon proof of the service thereof and of the failure
of the witness, may issue a warrant to the sheriff of the province,
or his or her deputy, to arrest the witness and bring him or her
before the court or officer where his or her attendance is
required, 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 or her failure to answer the subpoena was
willful and without just excuse.
CONTEMPT
Failure by any person without adequate cause to obey a
subpoena served upon him or her shall be deemed a contempt
of the court from which the subpoena is issued. If the subpoena
was not issued by a court, the disobedience thereto shall be
punished in accordance with the applicable law or Rule.
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 or her residence to the place where he or she is to testify
by the ordinary course of travel, or to a detention prisoner if no
permission of the court in which his or her case is pending was
obtained.
RULE 22
COMPUTATION OF TIME
COMPUTATION OF 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
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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.
RULE 23
DEPOSITION ON PENDING CASES
DEPOSITION
Deposition is taking, out of court, of the testimony of any person,
whether a party or not, but at the instance of a party to the action.
In deposition on pending case, who is the one that can be
taken deposition of? Is it limited to the adverse party
To Any person, whether a party or not.
DEPOSITION IN A PENDING CASE
Upon ex parte motion of a party, the testimony of any person,
whether a party or not, may be taken by deposition upon oral
examination or written interrogatories. The attendance of
witnesses may be compelled by the use of a subpoena as
provided in Rule 21. Depositions shall be taken only in
accordance with these Rules. The deposition of a person
confined in prison may be taken only by leave of court on such
terms as the court prescribes.
How do you apply?
Ex-Parte Motion
After the court allows you to take deposition, you still need
to secure the attendance of the witness by subpoena. Is it
automatic that once deposition is granted the court will
forthwith, as a matter of course, issue a subpoena or do you
need to apply?
You still need to apply for a subpoena.
SCOPE OF EXAMINATION
Unless otherwise ordered by the court as provided by Section
16 or 18 of this Rule, the deponent may be examined regarding
any matter, not privileged, which is relevant to the subject of the
pending action, whether relating to the claim or defense of any
other party, including the existence, description, nature,
custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons
having knowledge of relevant facts.
NOTE: In deposition, we apply the rules in evidence that it is
subject to a direct examination, cross-examination, redirect and
re-cross.
AVAILMENT OF DEPOSITION
When will you take the deposition of the person?
The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the court finds:
1. That the witness is dead; or
2. That the witness resides at a distance more than one
hundred (100) kilometers from the place of trial or
hearing, or is out of the Philippines, unless it appears
that his or her absence was procured by the party
offering the deposition; or
3. That the witness is unable to attend or testify because
of age, sickness, infirmity, or imprisonment; or
4. That the party offering the deposition has been unable
to procure the attendance of the witness by subpoena;
or
5. Upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the
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 interest of justice and with due regard to the importance
of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used; and
Is it exactly 100 kilometers or more than 100 kilometer?
More than 100 kilometers
PURPOSE OF A DEPOSITION
The purpose for which a deposition may be used depends on
who the deponent is and on who will be using the deposition.
Can the deposition you took be used by the adverse party?
YES. Any deposition may be used by any party for the purpose
of contradicting or impeaching the testimony of the deponent as
a witness
NOTE: When you impeach a credibility, you are saying that he
is not credible. This means that he is not believable. Credibility
means believability.
If during testimony he says one thing but during the deposition
he says a contradicting statement. You will use the deposition to
show that the witness is unreliable because he is saying two
different things.
Richard is the defendant in a case of reconveyance of land.
During the pendency of the case, Richard sold the land to
Ranins. Prior to the sale of the property to Ranins subject
of the case, Richard already obtained approval of the court
for deposition. Subsequently, Ranins substituted Richard
from the case as a transferee-in-interest. Does Ranins need
to apply for a new deposition?
NO.
When you take three different depositions of individuals, is
it automatic that they become your witnesses?
NO. The rules say that they shall not be deemed to be
witnesses.
The rules of court provides that no evidence shall be considered
by the court until it is formally offered. So, for it to be part of your
witnesses you need to formally offer it.
The mere taking of the deposition without formally offering it for
evidence means it is NOT AUTOMATICALLY part of your
evidence or witnesses.
You can get 10 depositions of 10 different persons but later on
only present 3 out of the 10. You are NOT COMPELLED to
present the other 7 witnesses.
DEPOSITION OFFICER
PERSONS BEFORE WHOM DEPOSITION 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.
Section 14. 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.
PERSONS BEFORE WHOM DEPOSITION MAY BE TAKEN
IN FOREIGN COUNTRIES
In a foreign state or country, depositions may be taken
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a) on notice before a secretary of embassy or legation,
consul general, consul, viceconsul, or consular agent
of the Republic of the Philippines;
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.
Under Section 14 which mentions agreement of the parties,
does it require letters of rogatory?
Letters of rogatory are only issued when necessary or
convenient. Section 14 refers to those stipulated by the parties.
LETTERS OF 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.
DISQUALIFICATION OF DEPOSITION OFFICER
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. (Section 13)
Can your second cousin take a deposition?
NO. He is disqualified, relative within the 6th degree is
disqualified.
Today, you gave a notice of deposition to your opposing
counsel. They received it at 10am today and the deposition
is at 2pm. Can you object to it?
YES. The rules provide that the there must be reasonable
notice.
CONTENTS OF A NOTICE
A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every other
party to the action. The 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 her or the
particular class or group to which he or she belongs. On motion
of any party upon whom the notice is served, the court may for
cause shown enlarge or shorten the time.
What can be issued by the court to PROTECTION of the
parties in relation to the deposition?
After notice is served for taking a deposition by oral examination,
upon motion seasonably made by any party or by the person to
be examined and for good cause shown, the court in which the
action is pending may make the following orders:
a. That the deposition shall not be taken;
b. That the deposition may be taken only at some
designated place other than that stated in the notice;
c. That the deposition may be taken only on written
interrogatories;
d. That certain matters shall not be inquired into;
e. That the scope of the examination shall be held with no
one present except the parties to the action and their
officers or counsel;
f. That after being sealed the deposition shall be opened
only by order of the court;
g. That secret processes, developments, or research
need not be disclosed; or
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 h. That the parties shall simultaneously file specified
documents or information enclosed in sealed
envelopes to be opened as directed by the court.
The court may make any other order which justice requires to
protect the party or witness from annoyance, embarrassment, or
oppression.
Can the court rule that the deposition should not be taken?
Discretion of the court
After being sealed what can the court order for the
deposition?
It will only be open upon order of the court.
Secret processes?
It should not be disclosed.
The deposition officer will take the oath of the deponent,
what will happen next?
RECORD OF EXAMINATION; OATH; OBJECTION
The officer before whom the deposition is to be taken shall put
the witness on oath and shall personally, or by someone acting
under his or her direction and in his or her presence, record the
testimony of the witness. The testimony shall be taken
stenographically unless the parties agree otherwise. All
objections made at the time of the examination to the
qualifications 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 officer upon the deposition.
Evidence objected to shall be taken subject to the objections. In
lieu of participating in the oral examination, parties served with
notice of taking a deposition may transmit written interrogatories
to the officers, who shall propound them to the witness and
record the answers verbatim.
Can there be a separate stenographer?
They are presenting an expert witness, but you want to
object because that expert witness is not really competent
to be an expert because he has only been a doctor for 3
hours. If you object to it, will the deposition officer make a
ruling to your deposition? Will it prevent the taking of the
deposition of that witness?
NO. The deposition officer CANNOT make a ruling. He must
only make a note of the objection. It will not prevent the taking
of the deposition of the witness.
Does that mean you are waiving the objection because
there is no ruling?
Insofar as the competence of the witness is concerned or the
admissibility of evidence, the time for you to object to that is the
time when it is offered in evidence.
So, you make an offer, if it is testimonial, at the time when you
are presenting the witness. When you make that offer that is the
time that you object to it.
In the same way, when you are orally offering your document
evidence that is the time to object of the admissibility of the
same.
The mere taking of the deposition does not automatically mean
that it will form part of your evidence. It would be premature to
ask that it be removed from the records because it is not yet
been offered in evidence.
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It is only at that time when it is being formally offered in evidence
can you object to its admissibility. UNLESS, at that time, you
could’ve made the opposition at the time of the deposition you
could’ve prevent it. But at this instance, you could not have
prevented the taking of the deposition.
REFUSAL OF WITNESS TO ANSWER
If a party or other deponent refuses to answer any question upon
oral examination, the examination may be completed on other
matters or adjourned as the proponent of the question may
prefer. The proponent may thereafter apply to the proper court
of the place where the deposition is being taken, for an order to
compel an answer. The same procedure may be availed of when
a party or a witness refuses to answer any interrogatory
submitted under Rules 23 or 25.
Can the proceedings be terminated and set for another
day?
YES. The proceedings can be suspended and set for another
day.
What is the effect? Who will be liable for the expenses?
The party who is presenting that witness.
Let us say that you are the one who asked for the deposition
of the witness. However, on the day of the deposition you
forgot to attend. What is the consequence?
If the party giving the notice of the taking of a deposition fails to
attend and proceed therewith and another attends in person or
by counsel pursuant to the notice, the court may order the party
giving notice to pay such other party the amount of the
reasonable expenses incurred by him or her and his or her
counsel in so attending, including reasonable attorney’s
fees.
After the deposition of the witness, once it is all transcribed
what will happen next?
When the testimony is fully transcribed, the deposition shall be
submitted to the witness for examination and shall be read to or
by him or her, 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 witness refuses to sign, what will the deposition
officer do?
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 absence 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 Rule, the
court holds that the reasons given for the refusal to sign require
rejection of the deposition in whole or in part.
CERTIFICATION
The officer shall certify on the deposition that the witness was
duly sworn to by him or her and that the deposition is a true
record of the testimony given by the witness. He or she shall
then securely seal the deposition in an envelope indorsed with
the title of the action and marked "Deposition of (here insert the
name of witness)" and shall promptly file it with the court in which
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the action is pending or send it by registered mail to the clerk
thereof for filing.
Do you need to give notice to the other party of the filing of
the deposition?
The officer taking the deposition shall give prompt notice of its
filing to all the parties.
When a deposition upon interrogatories is filed, the officer taking
it shall promptly give notice thereof to all the parties and may
furnish copies to them or to the deponent upon payment of
reasonable charges therefor. (section 27, Rule 23)
DEPOSITION WRITTEN INTERROGATORIES
A party desiring to take the deposition of any person upon
written interrogatories shall serve them upon every other party
with a notice stating the name and address 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) calendar days thereafter, a party so served may serve
cross-interrogatories upon the party proposing to take the
deposition. Within five (5) calendar days thereafter the latter may
serve re-direct interrogatories upon a party who has served
cross interrogatories. Within three (3) calendar days after being
served with re-direct interrogatories, a party may serve recross-
interrogatories upon the party proposing to take the deposition.
What if you learned that the deposition officer is the first
cousin of the other party but they tried their best to conceal
it to you. You learned about it after the deposition was
already taken, is this a waiver on you part?
NO. Objection to taking a deposition because of disqualification
of the officer before whom it is to be taken 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.
ERROR OR IRREGULARITY AS TO COMPETENCY OR
RELEVANCY OF EVIDENCE
Objections to the competency of a witness or the competency,
relevancy, or materiality of testimony are not waived by failure
to make them before or during the taking of the deposition,
unless the ground of the objection is one which might have been
obviated or removed if presented at that time. (Section 29, par.
(c), Rule 23)
NOTE: Section 29 Paragraph C, it is not a waiver to the
objections to the competence or relevance of the evidence.
ERRORS AS TO ORAL EXAMINATION AND OTHER
PARTICLURAS
Errors and irregularities occurring at the oral examination in the
manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, 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.
ERRORS AS TO FORM OF WRITTEN INTERROGATORIES
Objections to the form of written interrogatories submitted under
Sections 25 and 26 of this Rule are waived unless served in
writing upon the party propounding them within the time allowed
for serving succeeding cross or other interrogatories and within
three (3) calendar days after service of the last interrogatories
authorized.
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OFFICERS TO TAKE RESPONSES AND PREPARE RECORD
A copy of the notice and copies of all interrogatories served shall
be delivered by the party taking the deposition to the officer
designated in the notice, who shall proceed promptly, in the
manner provided by Sections 17, 19 and 20 of this Rule, to take
the testimony of the witness in response to the interrogatories
and to prepare, certify, and file or mail the deposition, attaching
thereto the copy of the notice and the interrogatories received
by him or her.
ERRORS AS TO MANNER OF PREPARATION
Objections to the form of written interrogatories submitted under
Sections 25 and 26 of this Rule are waived unless served in
writing upon the party propounding them within the time allowed
for serving succeeding cross or other interrogatories and within
three (3) calendar days after service of the last interrogatories
authorized.
RULE 24
DEPOSITION BEFORE ACTION OR PENDING APPEAL
Can we take a deposition of a party or a person even before
there is a pending case in court?
YES. A person who desires to perpetuate his or her 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.
We can’t just take the deposition of the person?
NO. You need to go to court and file a verified petition.
What should you allege in the verified 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 or her
interest therein;
c. the facts which he or she desires to establish by the
proposed testimony and his or her reasons for desiring
to perpetuate it;
d. the names or a description of the persons he or she
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
or she 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.
Who should be given of notice of the deposition before the
filing of the case?
Any person name that is expected to be an adverse party of the
action.
“The petitioner shall serve a notice upon each person named in
the petition as an expected adverse party, together with a copy
of the.petition, stating that the petitioner will apply to the court,
at a time and place named therein, for the order described in the
petition.” (Section 3, Rule 24)
PERIOD OF ISSUANCE OF NOTICE
At least twenty (20) calendar days before the date of the hearing,
the court shall cause notice thereof to be served on the parties
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and prospective deponents in the manner provided for service
of summons.
DEPOSITION 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 or she expects to elicit from each; and (b) the reason
for perpetuating their testimony. If the court finds that the
perpetuation 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.
Within what period and to which court do you apply for the
deposition?
The Court where the case is pending or the court of origin
What should you file? Should it also be a verified petition?
NO. File a motion.
RULE 25
INTERROGATORIES TO PARTIES
WRITTEN INTERROGATORIES
Upon ex parte motion, 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.
Who can be served written interrogatories?
Only the Adverse Party
ANSWER TO INTERROGATORIES
The interrogatories shall be answered fully in writing and shall
be signed and sworn to by the person making them.
Within what period should the ANSWER be filed?
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) calendar days after service
thereof, unless the court, on motion and for good cause shown,
extends or shortens the time.
Can you object on the written interrogatories served upon
you?
YES. Within 10 calendar days. Objections to any interrogatories
may be presented to the court within ten (10) calendar 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 time as is practicable.
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Does it mean that you need to file your answer on the
written interrogatories during the pendency of the ruling of
the court on your opposition? Should you answer or
otherwise it will be deemed waived?
The effect of the opposition is that it will defer the period to
Answer. So, you need to wait for the ruling of the court for your
opposition.
If you are served written interrogatories but you did not
answer does that mean that the adverse party cannot be
presented as an adverse witness?
NO. It does not prevent the party from presenting the adverse
party as witness. This is because it was already served to the
adverse party. The rules only mention service without requiring
that it should be answered. Otherwise, it would be dependent on
the adverse party on whether or not it will be an adverse witness,
it can be called upon.
The adverse can just defeat it by not answering. Accordingly, it
is sufficient that there is service of the written interrogatories.
In written interrogatories do you need to apply for it in court
or do you just serve it on the other party and file it in court?
It should be filed and served to the adverse parties.
What if the other party is a corporation to whom to do you
serve the written interrogatories?
If the adverse party is a corporation, it may be served to any
officer thereof competent to testify in its behalf.
How many sets of written interrogatories can you serve to
the other party?
One (1) Set. No party may, without leave of court, serve more
than one set of interrogatories to be answered by the same
party.
When can it be more than one (1) set?
When allowed by the Court.
SCOPE AND USE
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.
Section 2, Rule 23 the deponent may be examined regarding
any matter, not privileged, which is relevant to the subject of the
pending action, whether relating to the claim or defense of any
other party, including the existence, description, nature,
custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons
having knowledge of relevant facts.
Section 4: Refers to the uses of depositions.
NOTE: Before you can present an adverse witness, you have to
get the written interrogatories of that party. In other words, you
want to produce the adverse party as your witness.
Serve them with written interrogatories first before you serve
them as a witness. But if they do not answer the written
interrogatories, it will not prevent you from presenting them as a
witness as long as you serve them the written interrogates.
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 RULE 26
ADMISSION BY ADVERSE PARTIES
What can be the subject of the request of Admission?
• Genuineness of any material and relevant document
described in and exhibited with the request
• The truth of any material and relevant matter of fact set forth
in the request
“At any time after issues have been joined, a party may file and
serve upon any other party a written request for the admission
by the latter of the genuineness of any material and relevant
document described in and exhibited with the request or of the
truth of any material and relevant matter of fact set forth in the
request. Copies of the documents shall be delivered with the
request unless copies have already been furnished.”
(Section 1, Rule 26)
Is it only limited to documents?
NO. It can include not just documents but for requesting of proof
of relevant facts.
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) calendar days
after service thereof, or within such further time as the court may
allow on motion, the party to whom the request is directed files
and serves upon the party requesting the admission a sworn
statement either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons why
he or she cannot truthfully either admit or deny those matters.
Objections to any request for admission shall be submitted to
the court by the party requested within the period for and prior
to the filing of his or her sworn statement as contemplated in the
preceding paragraph and his or her compliance therewith shall
be deferred until such objections are resolved, which resolution
shall be made as early as practicable.
EFFECT OF FAILURE TO RESPOND OR SERVE FOR
REQUEST OF 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 knowledge of the latter, shall not be permitted to
present evidence on such facts.
EFFECT OF ADMISSION
Any admission made by a party pursuant to such request is for
the purpose of the pending action only and shall not constitute
an admission by him or her for any other purpose nor may the
same be used against him or her in any other proceeding.
The Rules of Court is suppletory in criminal cases, can we
use this in Criminal Cases?
NO. The right of the accused not to be compelled to be a witness
against himself is violated. Because if you will use it against an
accused it will be deemed an implied admission, therefore it
cannot be allowed because you are compelling him to be a
witness against himself.
WITHDRAWAL
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
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personal knowledge of the latter, shall not be permitted to
present evidence on such facts.
RULE 27
PRODUCTION OR INSPECTION OF DOCUMENTS OR
THINGS
What can you produce and inspect?
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 or her possession, custody or
control; or (b) order any party to permit entry upon designated
land or other property in his or her possession or control for the
purpose of inspecting, measuring, surveying, or photographing
the property or any designated relevant object or operation
thereon. The order shall specify the time, place and manner of
making the inspection and taking copies and photographs, and
may prescribe such terms and conditions as are just.
For instance, your action is to determine which property belongs
to you. So, you want it to be measured by an engineer but you
cannot enter the premises because it is a private property. You
cannot compel him to allow you entry so you need to avail of
Rule 27 so that you can enter into the premises.
RULE 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
When can we use physical and mental examination?
In an action in which the mental or physical condition of a party
is in controversy, the court in which the action is pending may in
its discretion order him or her to submit to a physical or mental
examination by a physician. (Section 1, Rule 28)
Example where a physical or mental examination is
required, where that condition is relevant to the case.
In probate proceedings to determine the capacity or mental
capacity such as when you are going to have a probate during
the lifetime of a party.
As a rule, there is a privilege between a lawyer and client,
or in patient-doctor. Won’t Rule 28 violate the privilege
communication between patient and doctor?
By requesting and obtaining a report of the examination so
ordered or by taking the deposition of the examiner, the party
examined waives any privilege he or she may have in that action
or any other involving the same controversy, regarding the
testimony of every other person who has examined or may
thereafter examine him or her in respect of the same mental or
physical examination. (Section 4)
If you ask for the report it is deemed a waiver, but the one who
asks the report should be the patient. Because the one who has
the right to waive that privilege is the patient.
How do you apply for it in Court?
The Order for examination may be made only on motion good
cause shown and upon notice to the party to be examined and
to all other parties, and shall specify the time, place, manner,
conditions and scope of the examination and the person or
persons by whom it is to be made.
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What should be contained in the report and to whom shall
it be delivered?
If requested by the party examined, the party causing the
examination to be made shall deliver to him or her a copy of a
detailed written report of the examining physician setting out his
or her findings and conclusions. 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.
What if the one who made the examination refuses to make
a report?
If the party examined refuses to deliver such report, the court on
motion and notice may make an order requiring delivery on such
terms as are just, and if a physician fails or refuses to make such
a report, the court may exclude his or her testimony if offered at
the trial.
RULE 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY
EFFECT OF REFUSAL TO ANSWER A DEPOSITION
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 Rules 23 or 25.
If 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.
If the application is denied and the court finds that it was filed
without substantial justification, the court may require the
proponent or the counsel advising the filing of the application, or
both of them, to pay to the refusing party or deponent the amount
of the reasonable expenses incurred in opposing the application,
including attorney's fees.
What is the effect of the deponent’s refusal to answer the
questions propounded upon the deponent?
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.
In addition to holding that liable for expenses, what else can
he be held liable?
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 of that court
Other consequences of refusal to answer the deposition or
refusal to produce under Rule 27 or allow inspection, or
refusal to allow an examination under Rule 28 that is not
covered the privilege?
The court may make such orders in regard to the refusal are just,
and among others the following:
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• 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;
• An order refusing to allow the disobedient party to support
or oppose designated claims or defenses or prohibiting him
or her from introducing in evidence designated documents
or things or items of testimony, or from introducing evidence
of physical or mental condition;
• An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing
the action or proceeding or any part thereof, or rendering a
judgement by default against the disobedient party; and
• In lieu of any of the foregoing orders or in addition thereto,
an order directing the arrest of any party or agent of a party
for disobeying any of such orders except an order to submit
to a physical or mental examination.
Will all pleadings be stricken out?
NO. The pleadings that pertain to the matters that is sought for
discovery.
Is it automatic that as long as you refuse to comply the
court will dismiss?
NO.
STRIKING OUT OF PLEADINGS
If you strike out portions of the pleadings. Let us say that the
defendant seeks a mode of discovery against the plaintiff and
the plaintiff does not comply. When you strike out such relevant
matters of the pleading, and if so much of it is already stricken
out such that there nothing is left and there is no more cause of
action then that can result into a dismissal.
If you strike out part of the answers that are portions that have
denials and what would only remain is the admission then there
is no more issues, the court can then render judgement on the
pleadings.
In what instances can a party be liable for expenses and
attorney’s fees in cases of refusal?
• Refusal to Answer
• Refusal to Admit
• Failure to Attend or Serve Answers
REFUSAL TO ADMIT
If a party after being served with a request under Rule 26 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 or she
may apply to the court for an order requiring the other party to
pay him or her the reasonable expenses incurred in making such
proof, including reasonable attorney's fees. Unless the court
finds that there were good reasons for the denial or that
admissions sought were of no substantial importance, such
order shall be issued.
FAILURE TO ATTEND OR SERVE ANSWERS
If a party or an officer or managing agent of a party wilfully fails
to appear before the officer who is to take his or her 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
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 presence of such party or counsel at the trial is indispensable
the action or proceeding or any part thereof, or enter a judgment and that the character of his or her illness is such as to render
by default against that party, and in its discretion, order him or his or her non-attendance excusable.
her to pay reasonable expenses incurred by the other, including
attorney's fees. What is the Order of Trial?
Subject to the provisions of Section 2 of Rule 31, and unless the
What if it was the Republic of the Philippines who violated court for special reasons otherwise directs, the trial shall be
the rules on deposition, will they be liable for expenses? limited to the issues stated in the pre-trial order and shall
Expenses and attorney's fees are not to be imposed upon the proceed as follows:
Republic of the Philippines a) The plaintiff shall adduce evidence in support of his or
her complaint
RULE 30 b) The defendant shall then adduce evidence in support
TRIAL of his or her defense, counterclaim, cross claim and
third-party complaint;
What is a TRIAL? c) The third-party defendant, if any, shall adduce
A trial is a judicial examination and determination of the issues evidence of his or her defense, counterclaim, cross-
between the parties to the action. claim and fourth party complaint
d) The fourth-party, and so forth, if any shall adduce
What is the SCHEDULE OF HEARING? evidence of the material facts pleaded by them
The parties shall strictly observe the scheduled hearings as e) The parties against whom any counterclaim or cross-
agreed upon and set forth in the pre-trial order. claim has been pleaded shall adduce evidence in
support of their defense, in the order to be prescribed
a. The schedule of the trial dates, for both plaintiff and by the court
defendant, shall be continuous and within the following f) The parties may then respectively adduce rebutting
periods: evidence only, unless the court, for good reasons and
i. The initial presentation of plaintiff’s evidence shall in the furtherance of justice, permits them to adduce
be set not later than thirty calendar days after the
evidence upon their original case
termination of the pre-trial conference. Plaintiff
g) Upon admission of the evidence, the case shall be
shall be allowed to present its evidence within
deemed submitted for decision, unless the court direct
three (3) months or ninety (90) calendar days
the parties to argue or to submit their respective
which shall include the date of the judicial dispute
memoranda or any further pleadings.
resolution if necessary;
ii. The initial presentation of defendant’s evidence
What if there are several defendants?
shall be set not later than thirty (30) calendar days
If several defendants or third-party defendants, and so forth,
after the court’s ruling, on the formal offer of
having separate defenses appear by different counsel, the court
evidence. The defendant shall be allowed to
shall determine the relative order of the presentation of
present its evidence within a period of three (3)
evidence.
months or ninety (90) calendar days;
iii. The period for the presentation of evidence on the
Is rebuttal evidence allowed?
third (fourth, etc.)-party claim, counterclaim or
Yes. The rules of provide if deemed necessary rebuttal evidence
cross-claim shall be determined by the court, the
is allowed. Accordingly, it is discretionary upon the court.
total of which shall in no case exceed ninety (90)
calendar days; and
So, the court receives the evidence of the case and the
iv. if deemed necessary , the court shall set the
court rules on the objections to the admissibility of
presentation of the parties' respective rebuttal
evidence. We learned, for instance, after a defendant is
evidence, which shall be completed within a period
declared in default, the court does not render judgement on
of thirty (30) calendar days.
default, the court may receive evidence to be delegated to
the clerk of court. Can the clerk of Court not be a member
b. The trial dates may be shortened depending on the number
of the Bar?
of witnesses to be presented, provided that the presentation
NO. According to Section 9, Rule 30, the court may delegate the
of evidence of all parties shall be terminated within a period
reception of evidence to its clerk of court who must be a member
of ten (10) months or three hundred (300) calendar days. If
of the bar.
there are no third (fourth, etc.)-party claim, counterclaim or
cross-claim, the presentation of evidence shall be
Does the Clerk of Court rule on objections?
terminated within a period of six (6) months or one hundred
NO. The Clerk of Court shall have no power to rule on objections
eighty (180) calendar days.
to any question, or to the admission of exhibits. The objection
shall be resolved by the court.
c. The court shall decide and serve copies of its decision to
the parties within a period not exceeding ninety (90)
What would the Clerk of Court do if there are objections?
calendar days from the submission of the case for
The clerk of court shall submit his or her report and the
resolution, with or without memoranda. (n)
transcripts within 10 calendar days from the termination of the
(SECTION 1, RULE 30)
hearing. After which, the Court will rule upon it.
When can POSTPONEMENT OF A TRIAL be granted?
A motion to postpone trial on the ground of illness of a party
or counsel upon affidavit or sworn certification that the
presence of such party or counsel at the trial is such that the
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 RULE 31
CONSOLIDATION OF CASES
When can there be SEPARATE TRIAL?
The Court, in furtherance of convenience or to avoid prejudice
may order a separate trial.
What will be separated?
Any claim, cross-claim, counterclaim or third-part complaint or
of any separate issue or of any number of claims, crossclaims,
counterclaims, third-party complaints or issues.
When can there be CONSOLIDATION of cases?
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. (SECTION 1, RULE 31)
Let us say there are two related cases in Makati RTC. One
is raffled in Branch 1 the other is in Branch 2.
Branch 1: Civil Case 11
Branch 2: Civil Case 12
You moved for consolidation of cases, is the Court
mandated to grant the consolidation?
NO. It is within the discretion of the Court.
If it is granted, in which court will it be consolidated in?
Branch 1. The Court where the lower docket number is filed
RULE 32
TRIAL BY COMMISSIONER
What if the reception of evidence was delegated to a
commissioner, can the commissioner rule on the
objections?
YES. The commissioner may rule upon the objections unless
otherwise stated in the order of reference.
When can a case be referred to a commissioner?
By written consent of the parties, the court may order any or all
of the issue in the case to be referred to a commissioner to be
agreed upon by the parties or to be appointed by the court. As
used in these Rules, the word “commissioner” includes a
referee, an auditor, an examiner.
What are the GROUNDS to refer a case to a commissioner?
By written consent of both parties
When the parties DO NOT CONSENT the court may, upon the
application of either or of its own motion, direct a reference to a
commissioner in the following cases:
• When the trial of an issue of fact requires the examination
of a long account on either side, in which case, the
commissioner may be directed to hear and report upon the
whole issue or any specific question involved therein;
• When the taking of an account is necessary for the
information of the court before judgement, or for carrying a
judgement or order into effect;
• 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 judgement or order into effect.
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Is the commissioner entitled compensation?
YES. The court shall allow the commissioner such reasonable
compensation as the circumstances of the case warrant, to be
taxed as costs against the defeated party, or apportioned, as
justice requires.
Does the commissioner have the power to administer oath
of the witnesses?
YES. The commissioner shall have the power to regulate the
proceedings in every hearing before him or her and to do all acts
and take all measures necessary or proper for the efficient
performance of his or her duties under the order. He or she may
issues subpoenas and subpoenas duces tecum, swear
witnesses, and unless otherwise provided in the order of
reference, he or she may rule upon the admissibility of evidence.
NOTE: The court can limit the power of the commissioner in the
order of reference.
Can the commissioner issue subpoenas?
YES.
The party has notice of the hearing but does not attend,
what are the consequences?
If a party fails to appear at the time and place appointed, the
commissioner may proceed ex parte or, in his or her discretion,
adjourn the proceedings to a future day, giving notice to the
absent party or his or her counsel of the adjournment.
Is the adjournment of hearing the same as suspension of
the case?
NO. Adjournment refers to the postponement of a trial date.
While suspension refers to the trial being temporarily stopped
You assail an interlocutory order, because you take the
position that there was GADALEJ, so you filed a petitioner
for certiorari for that interlocutory order. is the filing a
certiorari to assai an interlocutory order, a ground to
suspend the proceedings?
YES. Provided that there is a temporary restraining order (TRO)
granted. If there is an injunction or restraining order, it can be
allowed.
Once there is a reception of evidence before the
commissioner, what happens next?
The commissioner shall proceed with all reasonable diligence.
Upon the completion of the trial or hearing or proceeding before
the commissioner, he or she shall file with the court his or her
report in writing upon the matters submitted to him or her by the
order of reference. When his or her powers are not specified or
limited, he or she shall set forth his or her findings of facts and
conclusions of law in his or her report. He or she shall attach
thereto all exhibits, affidavits, depositions, papers and the
transcript, if any, of the testimonial evidence presented before
him or her.
After notice to the parties, what happens next?
Upon the filing of the report, the parties shall be notified by the
clerk, and they shall be allowed 10 calendar 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 are available to the parties during the proceedings before
the commissioner, other than objections to the findings and
conclusions therein set forth, shall not be considered by the
court unless they were made before the commissioner.
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Will there be a hearing on the report?
YES. Upon the expiration of the 10 day period, 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 before the commissioner or the court.
When the parties agree not to dispute the report and agree
that the findings of the commissioner are correct, what is
the effect?
When the parties stipulate that a commissioner’s findings of fact
shall be final, only questions of law shall thereafter be
considered. The Court may only rule on the questions of law.
Let us say you want to present an expert witness. Before
you can present an expert witness, you need to establish
the expertise of the witness (this includes school graduated
from, number of years in practice.) Rather than presenting
this in evidence, Can the parties stipulate that he is an
expert witness?
YES. Because the Rules of Court allows it. Under the pre-trial,
the ROC allows the parties to stipulate facts. Rather than
presenting evidence of a fact, the parties can stipulate instead.
In trial, it is expressly provided that there can be an agreement
for the stipulation of facts. Which means you do not need to
present evidence on that matter anymore.
PNB v. GOTESCO
JUDDICIAL AFFIDAVIT RULE (JA RULE)
A.M. No. 12-8-8-8-SC
What courts do we apply the JA rule?
ALL COURTS except for MTC for small claims.
What are the contents of a Judicial Affidavit?
A judicial affidavit shall be prepared in the language known to
the witness and, if not in English or Filipino, accompanied by a
translation in English or Filipino and shall contain the following:
a) The name, age, residence, or business address, and
occupation of the witness;
b) The name and address of the lawyer who conducts or
supervises the examination of the witness and the
place where the examination is being held;
c) A statement that the witness is answering the
questions asked of him, fully conscious that he does so
under oath, and that he may face criminal liability for
false testimony or perjury
d) Questions asked of the witness and his corresponding
answers, consecutively numbered, that
(a) Shows the circumstances under which the
witness acquired the facts upon which he
testifies
(b) Elicit from him those facts which are relevant
to the issues that the case presents; and
(c) Identify the attached documentary and object
evidence and establish their authenticity in
accordance with the rules of court
e) The signature of the witness over his printed name
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f) A jurat with the signature of the notary public who
administers the oath or an officer who is authorized by
law to administer the same.
What else should be included in a Judicial Affidavit?
The Judicial Affidavit must contain the sworn attestation of the
lawyer. It shall be placed at the end, executed by the lawyer who
conducted and supervised the examination of the witness, to the
effect that
(1) He faithfully recorded or caused to be recorded the
questions he asked and the corresponding answers
that the witnesses gave
(2) Neither he nor any other person then present or
assisting him coached the witness regarding the latter’s
answers.
A false attestation shall subject the lawyer mentioned to a
disciplinary action including disbarment.
In CRIMINAL CASES when do you use Judicial Affidavits?
A judicial affidavit is used to all criminal actions:
(1) Where the maximum of the imposable penalty does not
exceed six years;
(2) Where the accused agrees to the use of judicial
affidavits irrespective of the penalty involved; or
(3) With respect to the civil aspects of the actions,
whatever penalties involved are.
If the penalty EXCEEDS six years, can you not use the
Judicial Affidavit?
NO. A judicial affidavit may still be used in criminal cases where
the imposable penalty exceeds six years when the accused
agrees to the use of the judicial affidavit.
If your witness is a government official declines to execute
a judicial affidavit, what do you do?
The requesting party may avail himself of the issuance of a
subpoena ad testificandum or duces tecum under Rule 21 of the
Rules of Court.
If it is an adverse party, you just need to subpoena, but
before you can subpoena, what is the requirement before
you can present an adverse party as a witness?
They must be served a written interrogatory. If it is an adverse
witness, you need to serve written interrogatories, they do not
need to reply. Otherwise, if you fail to serve it you cannot present
him as a witness.
The Judicial affidavit is in lieu of your direct examination
and you should attach all of your exhibits in your judicial
affidavits. When is the time to object to the questions in the
judicial affidavit? Or are you already prevented from
objecting from the same because the questions are already
answered in the judicial affidavit?
After the offer of the testimony.
THREE KINDS OF EVIDENCE
1. Testimonial
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 2. Documentary
3. Object
If there is a contract of loan. You cannot just submit it as
evidence to the court. You need to authenticate that contract of
loan. There must genuineness and due execution.
So, someone needs to say that this is the loan that we entered
into. And someone needs to say that the signatures appearing
in the contract are the signatures of the debtor and creditor. It is
not self-authenticating; someone needs to testify on it.
TESTIMONIAL EVIDENCE
In testimonial evidence – the time to make an offer is when you
are going to present that witness. Before you present the
witness: you need to make your formal offer the witness, so you
will tell the court the purpose for which the testimony is being
offered.
For instance; the first witness will testify to the existence of the
loan to prove the existence between complainant and
defendant.
Generally, what you want to prove are pieces of evidence that
would establish your cause of action. So, in case of doubt, you
look at your cause of action, check the elements and check what
you need to prove by means of evidence.
So, if it is testimonial evidence, you make an offer before the
witness will talk. Right after the plaintiff or whoever is presenting
the witness, that is the time you will object.
So, if they are offering Mr. X as an expert witness for example
he is offered as a Doctor but he is only a med student, that is the
time you object to the offer because of the incompetence of the
witness. At the same you can already object to the questions in
the judicial affidavit. For example, you will object to number 1 of
the Judicial affidavit for being leading, number 2 for misleading,
compound question etc. So the time you make an objection
to the evidence is the time when it is formally offered.
DOCUMENTARY AND OBJECT EVIDENCE
Even if a witness will testify on that during his testimony, the time
for you to object the evidence is when it is being offered.
Documentary and object evidence will be formally offered after
the last witness.
SIMULATION OF DIRECT EXAMINATION WITH JUDICIAL
AFFIDAVIT
In direct examination you can only ask question that are NOT
leading, or NOT misleading.
LEADING QUESTION
A question is generally leading when the question can be
answered by YES or NO. Unless it is used as a basis of a
subsequent question.
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MISLEADING QUESTION
It assumes facts. Meaning it assumes something that the
witness has not testified on.
SUAREZ – COUNSEL FOR PLAINTIFF
LUCIANO – WITNESS
KHO – COUNSEL FOR THE DEFENDANT
The case is a contract of Loan, Luciano is the creditor.
Luciano loaned P5,000 to Panandigan on January 1, 2019. It
is payable January 30, 2020. The proof the loan is the
contract of loan which they both signed.
After January 30, Luciano sent a demand letter to
Panandigan but despite the notice and demand letter
Panandigan did not pay the loan. A collection for the sum
of money.
PROCEDURE
1. CALL THE WITNESS – when the court tells you to call on
the witness you will just say “may we call on the witness.”
“May we call on Ms. Reina Luciano to the witness stand”
After she goes there, they will ask her name, her personal
circumstances, address, occupation, and then they will swore
him as a witness.
2. OFFER OF THE WITNESS – what will the witness prove
Suarez: I am offering the testimony of Ms. Luciano to prove that
Ms. Luciano and Ms. Panandigan entered into a contract of loan
extending a loan of P5,000. The loan was due and demandable
and despite demand Ms. Panandigan did not pay and that Ms.
Luciano is entitled to the damages.
3. EXAMINATION (QUESTIONS) – you need to prove your
cause of action. In this case (1) that there is a loan (2) the
amount of the loan (3) the due date (4) and that there was
demand and payment was not made. You must be able to
let the witness to identify the documents i.e contract of loan
and demand letter.
(1) FIRST SCENARIO
Suarez: Ms. Luciano can you tell us what happened in January
1, 2019.
Kho: Objection. MISLEADING
WHY? The question was misleading because it assumes that
something happened in January 1, 2019.
PROPER QUESTION: What happened in January 1, 2019 if
any?
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 (2) SECOND SCENARIO
Suarez: Ms. Luciano can you tell us what happened in January
1, 2019, if any?
Luciano: I extended a loan to Ms. Panandigan but despite
demands, she did not pay.
KHO: Strike out the portion that stated that she demanded for
the payment of loan. Strike it out for being misleading to the
question.
So if that statement is stricken out the only remaining part is “I
extended the loan”
Suarez: Ms. Luciano can you tell us to whom did you extend the
loan, if any?
Luciano: To Ms. Pananadigan
NOTE: you need to let the witness say that the “Panandigan”
she mentioned is the same Panandigan in the case. The
question should be asked in a way that it will point to the
defendant.
Suarez: Is the Ms. Panandigan you are referring to the same
Ms. Panandigan who is the defendant of the case?
Kho: Objection on the ground that the question is misleading.
NOTE: the question to be asked must be answerable by yes or
no, so it has to be leading.
PROPER QUESTION: “Can you point to her if she is in the
court” or “What is the relation of the Ms. Panandigan you
mentioned to the defendant of this case, if any?”
Then the witness will answer that “she is the same person” or
“she is the defendant in this case”
(3) THIRD SCENARIO
AMOUNT OF THE LOAN
Suarez: Ms. Luciano How much did you extend to Ms.
Panandigan?
Luciano: P5,000
ESTABLISHING THE DEFAULT
Suarez: Ms. Luciano can you tell us what are the stipulations in
the contract that you agreed upon, if any?
Luciano: That the loan should be payable on January 30, 2019.
Suarez: On January 30, 2019, can you tell us what happened,
if any?
Luciano: Ms. Panandigan did not pay the loan.
Suarez: what did you do, if any?
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Luciano: I made a demand
(4) FOURTH SCENARIO
EXISTENCE OF THE CONTRACT OF LOAN
The next is how do you make her testify the existence of the
contract of loan. Because you can enter it verbally, but you want
to prove that there is a contract of loan.
Suarez: what is your proof that you enter into a contract of loan,
if any?
Luciano: We executed a contract of loan/deed of loan.
Suarez: If shown a copy of this contract, will you be able to
identify it?
Luciano: Yes
NOTE: The previous question is an example of laying a basis
that is answerable by a yes or no.
Suarez: I have a copy of a contract of loan, can you go over this
and tell us if you know what is the relation of this document with
the contract of loan you mentioned earlier.
NOTE: You cannot ask the question “is this the contract of loan”
because that question is leading.
Luciano: This is the contract of loan that we entered into
That is how you prove the genuineness of the contract
SIGNATURE OF THE PARTIES
Suarez: Whose signature is this appearing?
NOTE: you have to ask it one by one.
After you identify it then the judicial affidavit the contract of loan
is attached with A-1 signature of Luciano and A-2 signature of
Panandigan.
SUMMARY OF PROPER QUESTIONING
“May we call on Ms. Reina Luciano to the witness stand”
Suarez: I am offering the testimony of Ms. Luciano to prove that
Ms. Luciano and Ms. Panandigan entered into a contract of loan
extending a loan of P5,000. The loan was due and demandable
and despite demand Ms. Panandigan did not pay and that Ms.
Luciano is entitled to the damages.
Suarez: Ms. Luciano can you tell us what happened in January
1, 2019, if any?
Luciano: I extended a loan to Ms. Panandigan but despite
demands, she did not pay.
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KHO: Strike out the portion that stated that she demanded for
the payment of loan. Strike it out for being misleading*** to the
question.
Suarez: Ms. Luciano can you tell us to whom did you extend the
loan, if any?
Luciano: To Ms. Pananadigan
Suarez: What is the relation of the Ms. Panandigan you
mentioned to the defendant of this case, if any?
Luciano: She is the defendant.
Suarez: Ms. Luciano How much did you extend to Ms.
Panandigan?
Luciano: P5,000
Suarez: Ms. Luciano can you tell us what are the stipulations in
the contract that you agreed upon, if any?
Luciano: That the loan should be payable on January 30, 2019.
Suarez: On January 30, 2019, can you tell us what happened,
if any?
Luciano: Ms. Panandigan did not pay the loan.
Suarez: what did you do, if any?
Luciano: I made a demand
Suarez: what is your proof that you enter into a contract of loan,
if any?
Luciano: We executed a contract of loan/deed of loan.
Suarez: If shown a copy of this contract, will you be able to
identify it?
Luciano: Yes
Suarez: I have a copy of a contract of loan, can you go over this
and tell us if you know what is the relation of this document with
the contract of loan you mentioned earlier.
Luciano: This is the contract of loan that we entered into
FINAL NOTES
To cut the proceedings short, they are already in judicial affidavit
form, if you look at it Kho was able to object to the questions of
the counsel before the witness can answer.
So the better thing to do is before the witness is able to answer,
you should make a timely objection.
In the simulation, the counsel of the defendant was able to object
on the answers of the witness. This cannot happen in a judicial
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affidavit because all the answers are in the paper, together with
the questions. That is why in Judicial Affidavits the time to make
an objection is before the Judicial Affidavit is presented.
What will happen in the Direct Examination if there is a
judicial affidavit?
First, you call the witness then you make a formal offer of
evidence.
Second, then you ask the witness “do you recall executing a
judicial affidavit in relation to this case, if any?”
Third, will you be able to identify the Judicial Affidavit?
Fourth, I’m showing you a document denominated judicial
affidavit of Ms. Luciano, can you go over this and tell us what is
the relation of this document to the judicial affidavit that you
mentioned?
Fifth, there appears to be a signature above the name Ms. Reina
Luciano can you go over it and tell us whose signature this is?
The Direct Examination ends there and then you will proceed
with cross-examination.
The time that the court will consider the testimony of a
witness only after you formally offered. And the time to
object the admissibility is only AFTER IT IS FORMALLY
OFFERED.
RULE 33
DEMURRER OF EVIDENCE
What is a demurer to evidence?
After the plaintiff has completed the presentation of his or her
evidence, the defendant may move for dismissal on the ground
upon the facts and the law the plaintiff has shown no right to
relief.
When do you file a demurrer of evidence in a civil case?
When the facts and the law the plaintiff has shown no right to
relief.
Is it right after the last witness is presented?
NO. It is after the court rules on the formal offer of evidence.
Before the formal offer of documentary evidence?
NO. After the court rules on the formal offer of documentary
evidence. Because if you are asking for a demurrer you are
saying that the evidence is insufficient. So, for you to know what
is the evidence, you need to know what forms part of the
evidence of the plaintiff.
OFFERING OF EVIDENCE
When you make a formal offer and the other party objects. The
Court will rule on the admissibility of the evidence.
Let us say, after the last witness, you need to make a formal
offer. The formal offer must be orally made after the last witness.
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The objections must be made orally also then the court rule will filing of a demurrer to evidence does not need leave of court and
rule on the admissibility. its denial will not result in a waiver of the defendant to present
evidence.
If the plaintiff’s exhibit consists of 26 exhibits (A-Z) at the time
the last witness, the documentary evidence has not been In CRIMINAL CASE the grant of demurrer to evidence results in
offered. But in order for it to be admissible it must be offered. So, the acquittal of the accused and hence the dismissal cannot be
after the last witness testifies you still need to formally offer the appealed while in a CIVIL CASE, the grant of the demurrer to
documentary evidence. evidence may be appealed and if on appeal the dismissal of the
case is reversed, the defendant is deemed to have waived the
So, for example: The contract of loan exhibit A that the loan was presentation of evidence.
extended and that it was due and demandable on January 1,
2019. Exhibit B the demand letter to prove that a demand was DEMURRER TO EVIDENCE
made and that despite demand there was no payment. CRIMINAL CASE CIVIL CASE
The filing of a demurrer to The filing of a demurrer to
So, if 26 evidence was offered, the other party can object. And evidence results in the evidence DOES NOT NEED
waiver of the accused to LEAVE OF COURT and its
the court will rule on the admissibility and if the court will say that
adduce evidence if the DENIAL WILL NOT
out of the 26 only one is admissible that is the only time that you filing was WITHOUT RESULT IN A WAIVER of
can say if the evidence is sufficient or insufficient. After the court LEAVE OF COURT and the defendant to present
rules on its admissibility or after the objections of the formal same was DENIED evidence.
evidence. WHEN GRANTED
Acquittal of the accused. Dismissal of the case
So when you say after the plaintiff rests its case it means that APPEAL
the formal offer is already done and the court has ruled on the Dismissal CANNOT be The dismissal may be
appealed appealed but if on appeal the
formal offer taking into account the objections, if any.
dismissal of the case is
reversed, the defendant is
When a demurrer is denied, the order denying the demurrer deemed to have waived the
is it an interlocutory order or a judgement? right to presentation of
Interlocutory Order. evidence.

Generally, an interlocutory order can be a subject of REPUBLIC v. DE BORJA

certiorari if there is GADALEJ. Under the rules, can a
demurrer be subject of an appeal or petition for certiorari, RADIOWEALTH FINANCE CORP v. SPOUSES DEL
prohibition or mandumus? ROSARIO
NO. It is prohibited. The order denying the demurrer to evidence
shall NOT be subject of certiorari, prohibition or mandamus. GMA NETWORK INC. v. CENTRAL CATV

What is the remedy of defendant? RULE 34

The defendant will present evidence. JUDGEMENT ON THE PLEADINGS

If the demurrer is granted, what is the effect?
The case will be dismissed as if there is a judgement of
dismissal.
Remedy of the plaintiff?
Appeal the order of dismissal.
If on appeal the Court Appeals reverses the RTC, what is
the effect?
The defendant is deemed to have waived the right to present
evidence.
If the demurrer evidence under Civil Procedure the same as
the demurrer to evidence in a Criminal Procedure?
NO. It is different.
In a CRIMINAL CASE the filing of a demurrer to evidence results
in the waiver of the accused to adduce evidence if the filing was
without leave and the same is denied, while in CIVIL CASE the
When is a judgement of the pleadings proper?
Where an answer fails to tender an issue, or otherwise admits
the material allegation of the adverse party’s the pleading, the
court may, on motion of that party, direct judgement on such
pleadings.
For there to be judgement on the pleadings, can the court
decide to render a judgement on the pleadings motu
proprio?
YES. The court may motu proprio or on motion render
judgement on the pleadings if it is apparent that the answer
fails to tender an issue, or otherwise admits the allegations
of the adverse parties’ pleadings. (SECTION 2)
The judgement of the pleadings by motion of the parties or by
the court motu proprio.
In relation to previous rules: For instance, you failed to
specifically deny the allegations like when you have a general

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denial, in which case it is an admission of the facts. Also, when
you have actionable document and you do not spcifically deny
under oath then it is considered an admission. Or you did not
deny rather you admitted, it is an admission.
What is the effect if there is judicial admission, do you need
to present evidence to prove your admission?
NO
Can there be judgement on the pleadings on all kinds of
cases?
NO. In actions of declaration of nullity or annulment of marriage
or for legal separation, the material facts alleged in the complaint
shall always be proved.
EXAMPLE: Even if your husband says “oo may psychological
incapacity” it is not considered as a judicial admission; you
would still need to prove it as a fact because of the peculiar
circumstance of these cases. They are special proceedings in
such that the State is interested in preserving the sancity of
marriage.
NOTE: If there is already an admission, then there is no more
disputed facts. If the adverse party admits it, then there is no
need for trial and what is left is only a question of law, the Court
can already render judgement on the pleadings.
IMPORTANT NOTE:
“Any action of the court on a motion for judgement on the
pleadings shall not be subject of an appeal or petition for
certiorari, prohibition or mandamus.”
• File a motion for the Court to render judgement on the
pleadings.
• If the Court GRANTS the motion to render judgement on
the pleadings. It is NOT AUTOMATIC that you already won
the case.
• When the Court grants the motion it means that the court
will render a judgement.
• Once it is granted, the judgement can either be in favor or
against you. This judgement can be a subject of an appeal
The order of the court whether it grants or deny the motion
is NOT A JUDGEMENT. The Court only accepts that it will
render a judgement. The judgement will come after the
order granting the motion for judgement on the pleadings.
ONCE A JUDGEMENT IS RENDERED, EITHER IN FAVOR
OR AGAINST YOU, THE REMEDY IS AN APPEAL BECAUSE
THERE IS ALREADY A JUDGEMENT.
ORDER GRANTING OR DENYING THE MOTION
As a rule, THE ORDER GRANTING OR DENYING THE
MOTION to render judgement on the pleadings is an
INTERLOCUTORY ORDER. It does not fully dispose of the
case.
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While generally an interlocutory order can be appealed because
of GADALEJ, however in this case since the ROC expressly
provides that the motion for judgement on the pleadings
cannot be subject of appeal or petition for certiorari,
prohibition, or mandamus.
SUNBANUN v. GO
A motion to render a judgement on the pleadings, litigious
or non-litigious?
Litigious because the court cannot render a judgement without
the prejudice to the other party. Because the ground for
judgement on the pleadings is that it does not render any issue,
so the other party would contend that there is an issue.
So you need to furnish a copy to the other party, then the
other party will file what?
A Comment or Opposition to motion. (in relation to RULE 15)
DIMAN v. ALUMBRES
ILOILO JAR CORP. v. COMGLASCO
COMGLASCO CORP v. SANTOS CAR CHECK CENTER
CORP
RULE 35
SUMMARY JUDGEMENTS
What is SUMMARY JUDGEMENT?
A summary judgement, also known as an accelerated
judgement, is proper where, upon motion filed after the issues
had been joined and on the basis of the pleadings and the
papers filed, the court finds that there is no genuine issue as to
any material fact except as to the amount of damages.
When the CLAIMANT file for summary judgement?
A party seeking to recover upon a claim, counterclaim, cross-
claim or to obtain a declaratory relief may, at any time after the
pleading in answer thereto has been served, moved with
supporting affidavits, depositions or admissions for a summary
judgement in his or her favor or upon all or any party thereto.
When can the DEFENDING PARTY file for summary
judgement?
A party against whom a claim, counterclaim, or cross-claim is
asserted or a declaratory relief is sought may, at any time, move
with supporting affidavits, depositions or admissions for
summary judgement in his or her favor as to all or any part
thereof.
What are the GROUNDS for summary judgement?
When the court finds that there is no genuine issue as to any
material fact.
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How do you distinguish “there is no genuineness issue”
from “failing to tender an issue in the pleadings”?
NO GENUINE ISSUE FAILURE TO TENDER AN
ISSUE IN THE PLEADINGS
While the pleadings, on their When there is an absence of
face, appear to raise issues, an issue. If it does not comply
it does not actually present with specific denial, there is
genuine issue or the issue is failure to tender an issue in
a sham. the pleadings.
Can there be a summary judgement not on the entire case
but only on the counter claim?
Yes because the ROC provides for what will happen when the
case is not fully adjudicated on motion.
What is the effect if there is only a PARTIAL SUMMARY
JUDGEMENT?
If on motion under this Rule, judgement is not rendered upon the
whole case or for all the reliefs sought and a trial is necessary,
the court may, by examining the pleadings and the evidence
before it and by interrogating counsel, ascertain what material
facts exist without substantial controversy, including the extent
to which the amount of damages or other relief is not in
controversy, and direct such further proceedings in the action as
are just. The facts so ascertained shall be deemed established,
and the trial shall be conducted on the controverted facts
accordingly. (SECTION 4)
NOTE: In case of a motion for summary judgement, the ruling of
the court on the motion is an interlocutory order. Because the
ruling of the court, whether the court grants or denies the motion.
The summary judgement itself is different. As such, it is not
subject to an appeal, petition for certiorari, prohibition and
mandamus.
What should accompany a motion for summary judgement?
Affidavits and supporting Papers.
Is this motion a litigious motion?
YES
After a motion is filed, what will the other party file?
An Opposition or a Comment
What should be attached in your comment?
Opposing affidavits and deposition.
How many days?
Within 5 days from receipt of the motion.
Is it mandatory for the court to have a hearing on a motion
for summary judgement?
NO. The code provides that “unless the court orders the conduct
of a hearing?
NOTE: A petition for review under Rule 45 is the proper mode of
redress to question only final judgements.
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What is the basis of the supporting affidavits?
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.
What if the affidavit is made in BAD FAITH?
Should it appear to its satisfaction at any time that any of the
affidavits presented are presented in bad faith, or solely for the
purpose of delay, the court shall order the offending party or
counsel to pay the other party the amount of the reasonable
expenses which filing of the affidavits caused him or her to
incur including attorney’s fees, it may, after further adjudge
the offending party or counsel guilty of contempt (indirect).
ASIAN CONSTRUCTION v. PCIB
REPUBLIC v. SANDIGANBAYAN
PROVINCE OF PANGASINAN v, COURT OF APPEALS
RULE 36
JUDGEMENTS, FINAL ORDERS AND ENTRY THEREOF
INTERLOCUTORY ORDER
It is an order which does not finally dispose of the case, and
indicates that other things remain to be done by the court. It
leaves something else to be done.
In BA Finance Corp v. CA, how did the court distinguish a
final order from an interlocutory order?
A FINAL ORDER is defined as one which disposes of the whole
subject matter or terminates a particular proceeding or action,
leaving nothing to be done but enforce by execution what has
been determined.
An INTERLOCUTORY ORDER is one that does not dispose the
case completely, but leaves something to be done upon its
merits.
INTERLOCUTORY ORDER FINAL ORDER
one that does not dispose the one which disposes of the
case completely, but leaves whoel subject matter or
something to be done upon terminates a particular
its merits. proceeding or action, leaving
nothing to be done but
enforce by execution what
has been determined.
REMEDY AGAINST AN INTERLOCUTORY ORDER
As a general rule is an interlocutory order is not appealable. The
proper remedy in questioning an interlocutory order is PETITION
FOR CERTIORARI UNDER RULE 65 assailing grave abuse of
discretion or by questioning the final order or judgement.
There are some instances under the ROC where there are
interlocutory orders that you cannot assail by certiorari because
it is expressly prohibited.
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Why can you not appeal an interlocutory order?
Permitting appeals of interlocutory order may result in multiplicity
of appeals in a single action, thus prolonging the action. That is
why as a general rule an interlocutory order cannot be appealed.
EXAMPLES OF INTERLOCUTORY ORDERS CANNOT BE
ASSAILED BY CERTIORARI
When the rules or the law expressly prohibits the interlocutory
order to be assailed in a petition for certiorari such as:
(a) A motion for judgement on the pleadings
(b) A motion for summary procedure.
It is the order of the court of the motion. If you file a motion for a
judgement on the pleadings or summary judgement, the ruling
of the court on that motion is the interlocutory order which
separate and distinct from the judgement on the pleadings and
the summary judgement.
When you file a motion to the court asking to render a judgement
on the pleadings and the court grants the motion to render
judgement on the pleadings. The ruling of the court on that
motion is an interlocutory order, because it does not finally
dispose of the case.
So, when the court denies the motion to render judgement on
the pleadings, the court is just saying that it will not any render
judgement. This not the judgement itself and there will be
separate judgement on the pleadings.
The same applies to a motion for summary judgement. If you file
a motion for summary judgement, the Court will either grant or
deny it which means that they are saying yes/no on rendering a
judgement but it is separate and distinct from the summary
judgement.
In these cases, generally there can be a petition for
certiorari if there is grave abuse of discretion, HOWEVER,
by express provision of the rules it is not allowed.
JUDGEMENT
A judgement is the final ruling by a court of competent
jurisdiction regarding the rights or other matters submitted to it
in an action or proceeding. It is the court’s official and final
consideration and determination of the respective rights and
obligations of the parties.
Can a judgement be a subject of an appeal?
YES
Under the Constitution in order for there to be valid
judgement, what should be contained in a judgement?
A judgement must clearly and distinctly state the facts and law
on which it is based. It shall be in writing and written personally
and directly prepared by the judge, signed by him, and filed with
the clerk of court.
Which judge should render the judgement?
The judge of the court wherein the case was filed.
The RTC Makati Judge is the one who heard the case, he
was transferred to RTC Pasig. While in RTC Pasig can he
render judgement on the case he heard in RTC Makati?
NO. When a judge is transferred to another court of equal
jurisdiction, he loses jurisdiction over all the cases of the Court.
If the Makati Judge was not transferred but instead, he
RETIRED, and he was doing nothing. Can he render
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judgement on cases he heard before his retirement, can he
do that during retirement?
NO. A decision penned by a judge after his retirement cannot be
validly promulgated and cannot acquire a binding effect. When
a judge retires, all his authority to decide any case ceases.
Branch 1: Judge Ang; Branch 2: Judge Andaya
Judge Andaya took a leave of absence so there was no
judge in Branch 2. Judge Ang was appointed as acting
judge of branch 2 RTC Makati. So, Judge Ang has two
courts. Subsequently, before rendering a judgement, Judge
Valdez returned to branch 2. While Judge Ang went back to
Branch. While in RTC Makati Branch 1, can Judge Ang
render a decision for a case she heard in Branch 2 Makati?
YES. Because Judge Ang continues to be an RTC Makati
Judge. Whether the judge in Branch 1 or Branch 2, she is still a
regional trial court Makati Judge and there is only one court in
the regional trial court of Makati. The branches are only there for
administrative purposes. Whether she is in branch 1 or branch
2, she remains to be a court of jurisdiction in Makati.
• In case of a default of the defendant the defendant, after
being declared in default, there can be a judgement on
default based on the allegations of the complaint, or the
court can require the reception of evidence to be delegated
to the clerk of court
• Under Rule 18 if the plaintiff is absent or did not file a pre-
trial brief the case can be dismissed which is another
judgement
• If the defendant is absent, the case can be presented ex-
parte
• Under Rule 17, If there is a violation of the rules of court, or
refusal to comply with the court order there can be
judgement of dismissal
In all of these instances, there is a judgement?
JUDGEMENT ON A COMPROMISE
A judgement on the merits. In this case the parties will enter into
a compromise agreement and they will submit it to the court and
the court will approve. After which, the ruling of the court will
contain the compromise agreement. Such that, the compromise
agreement will be the judgement of the court.
A judgement on a compromise is one rendered by the court on
the basis of a compromise of agreement entered into between
the parties to the action.
What is the nature of a judgement on a compromise? Is it
immediately executory?
It is final and immediately executory unless set aside because
of falsity or vices of consent.
What is your remedy?
Since a judgement on compromise agreement is effectively a
judgement on the case, the proper remedies against ordinary
judgement may be used against judgements on a compromise
agreement. Accordingly:
(a) Motion for reconsideration
(b) Motion for new trial
(c) Appeal
(d) Petition for relief from judgment
(e) Petition for certiorari
(f) Petition for annulment of judgement.
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REMEDY FOR NON-COMPLIANCE: What if the other party
refuses to comply with the terms of the judgement on the
compromise, what is your remedy?
In the non-compliance of some of the parties with the terms of
the compromise agreement, the party may file a MOTION FOR
EXECUTION OF JUDGDEMENT.
BODY OF THE JUDGEMENT/ RATIO DICIDENDI
Explains how the court was able to reach the conclusion of their
decision.
DISPOSITIVE PORTION OF THE JUDGEMENT/ FALLO
The conclusion of the court. It constitutes the judgement of the
court.
In case of conflict between the two which shall prevail?
Dispositive Portion/ fallo
The part of the judgement that is subject to execution is the
dispositive portion which constitutes the judgement of the court.
What is the reason?
It rests on the theory that the fallo is the final order while the
opinion in the body is merely a statement ordering nothing.
Is there an exception where the ratio dicidendi prevail over
the dispositive judgement?
If there are clerical errors. Where the inevitable conclusion from
the body of the decision is so clear that there was a mere
mistake in the dispositive portion, the decision will prevail
AMENDED JUDGEMENT
An amended judgement is an entirely new decision which
supersedes or takes the place of the original decision.
REMEDIES TO AVAIL AN AMENDED JUDGEMENT
• Appeal
• Motion for reconsideration
• Motion for new trial
• Petition from relief of judgement
• Petition for annulment of judgement
Is an amendment judgement the same as a supplemental
judgement?
NO. An amended judgement is an entirely new judgement
replacing the original judgement. In a supplemental judgement
the original judgement is there but the Court only adds to the
original decision.
CLARIFICATORY JUDGEMENT
When the judgement is difficult to execute because of ambiguity
in the terms, a clarificatory judgement must be availed of for the
removal of the ambiguity in the judgement.
Does a clarificatory judgement alter the judgement?
NO. The court will only clarify the ambiguous terms in the
judgement and will not dwell on the merits of the case
DOCTRINE OF IMMUTABILITY OF FINAL JUDGEMENT
An immutability of judgement is the principle that once a
judgement has become final and executory, the judgement may
no longer be modified in any respect, even if the modification is
meant to correct what is perceived to be an erroneous
conclusion of fact or law.
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What is the reason behind the doctrine?
It is founded on considerations of public policy and sound
practice, that at risk of occasional errors, judgements shall
become final at some point in time so that litigation comes to an
end.
When does a judgement become final?
After the expiration of the reglementary period of the appeal. The
reglementary period begins to run from the notice of the
decision.
What is the PERIOD?
After the lapse of the 15 days. (16th day)
The fifteen days is for you to file your appeal or motion for
reconsideration.
Take note that a decision will not be final if it can still be
amended.
When can a decision be amended?
If there is still a remedy for you to amend it.
What are remedies available for you to amend it?
For instance, a motion for reconsideration (MR) or appeal.
You are the plaintiff and receive the decision on January 1,
when your last day to file an appeal or motion for
reconsideration?
January 16
The defendant received the decision on January 2, what is
the last day for the defendant to file an appeal or motion for
reconsideration?
January 17
On January 16 the plaintiff can still file an appeal or an MR?
YES
On January 17, can the plaintiff still file an appeal or an MR?
NO.
On January 17, can the defendant still file an appeal or an
MR?
YES
NOTE: You count the 15 days from the date of receipt. The date
of receipt is not always the same. In so far as the PLAINTIFF is
concerned, on January 17 the plaintiff can no longer file an
appeal or a motion for reconsideration. However, it does not
mean that the decision is already final because on January 17
the decision can still be potentially changed if the defendant files
an appeal or a motion for reconsideration.
It will only be final and executory if no one can file an appeal or
a motion for reconsideration.
So therefore, when does it become final and executory?
January 18. This is also the date of the entry of judgement.
So even if it is the defendant who won the case on January 17 it
is still not final and executory because the defendant, even if he
won, he can still appeal such as when he is not satisfied with the
decision. For example, if the defendant won and he was
awarded P500,000 but he is not satisfied, he can file an appeal.
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The decision becomes final and executory AFTER the lapse
of 15 days. The period to file an appeal or MR is WITHIN 15
days.
When is your reckoning point?
From the notice of the decision. So until you have not received
the decision the reglementary period will not commence.
The Decision becomes immutable, meaning it can no longer
be altered because an appeal or MR is no longer available.
Does the rule on Immutability of judgement apply to
judgement on pleadings?
YES
Summary judgement?
YES
Does it apply on judgement on compromise?
YES
How about judgement on default?
YES
EXCEPTIONS TO THE IMMUTABILITY OF FINAL
JUDGEMENTS
(1) Correction of clerical errors
(2) Nunc Pro Tunc entries in which case there is no prejudice
to any party
(3) Void Judgements
(4) Whenever circumstances transpire after the finality of the
decision rendering its execution unjust and inequitable.
What is nunc pro tunc judgement?
A nunc pro tunc order is made to enter into the record an act
previously done by the court, which had been omitted either
through inadvertence or mistake.
A nunc pro tunc judgement does not prejudice the parties
why?
It does not create any rights of the parties that is different from
what is ruled upon. It only puts on record what has already been
done.
DOCTRINE OF RES JUDICATA
Res Judicata means that once a matter has been decided with
finality by a court, the matter is conclusive as between the
parties to the case and can no longer be relitigated.
The doctrine embraces two concepts:
(1) Bar by Prior Judgement
(2) Conclusiveness of judgement
BAR BY PRIOR JUDGEMENT
The judgement 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
commencement of the action or special proceeding, litigating for
the same thing and under the same title, and in the same
capacity (SECTION 47(b), RULE 39)
REQUISITES OF BAR BY PRIOR JUDGEMENT
• The prior judgement or order must be final and executory or
final and unappealable
• It must be rendered by a court having jurisdiction over the
subject matter and the parties
• The prior judgement or order must be on the merits, that is,
it was rendered after a consideration of the evidence or
stipulations submitted by the parties at the trial of the case.
A dismissal order which even if not on the merits is a
dismissal with prejudice or has the effect of an adjudication
on the merits constitutes res judicata
• The identity of subject matter, parties and causes of action
between the prior action and the subsequent action
CONCLUSIVENESS OF JUDGEMENT
In any other litigation between the same parties or their
successors-in-interest, that only is deemed to have been
adjudged in a former judgement or final order which appears
upon its face to have been so adjudged, or which actually and
necessarily included therein or necessary thereto (SECTION 47
(C), RULE 39)
In conclusiveness of judgement the parties in both actions are
the same but the causes of action are different. Hence the
former judgement or final order is conclusive only in respect as
to the matters actually raised and adjudged therein.
REQUSITIES OF CONCLUSIVNESS OF JUDGEMENT
• Final Judgement is final
• It was rendered by a court having jurisdiction over the
subject matter and the parties
• The judgement is on the merits
• There is, between the first and second actions, identity of
parties, of subject matter and cause of action
BAR BY PRIOR CONCLUSIVNESS OF
JUDGEMENT JUDGEMENT
Identity of CAUSES OF ACTION
There is identity of causes of The causes of action are
action between the prior and different
the subsequent case
CONCLUSIVNESS
The prior case is conclusive the prior case is conclusive
not only as to the matters only in respect of the matters
directly adjudged but also to actually raised and adjudged
any other matter that could in the prior case
have been raised in relation
thereto
PRECLUSIVE EFFECT
Bars the relitigation of a bars only the relitigation of
CASE the ISSUES
GROUND FOR MOTION TO DISMISS
It is a ground for motion to it is NOT a ground for motion
dismiss to dismiss.
What is the LAW OF THE CASE?
According to this principle, whatever is once irrevocably
established as the controlling legal rule or decision between the
same parties in the case continues to be the law of the case,
whether correct on general principles or not, so long as the facts
on which such decision was predicated continue to be the facts
the of the case before the court.
This principle generally finds application in cases where an
appellate court passes on a question and remands the case to
the lower court for further proceedings. The question there
settled becomes the law of the case upon subsequent appeal.
Consequently, the court reviewing the succeeding appeal will
not relitigate the case but instead apply the ruling in the previous
appeal.
Once a decision attains finality, it becomes the law of the
case irrespective of whether the decision is erroneous or

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not and no court has the power to revise, review, change or
alter the same.
RULE 37
NEW TRIAL OR RECONSIDERATION
What is a MOTION FOR RECONSIDERATION?
One that is directed against a judgement or final order. It is a
motion filed asking the court to review a prior decision.
Is a motion for reconsideration the same as a motion for
new trial?
NO. the grounds for motion for reconsideration and a motion for
new trial is different.
GROUNDS FOR MOTION FOR NEW TRIAL
• 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
• Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced at the
trial, and which if presented would probably alter the result
GROUNDS FOR MOTION FOR RECONSIDERATION
The aggrieved party may 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
Is there an instance where the time to file your motion for
new trial or MR is within 30 days?
YES. In case of records on appeal or in special proceedings. A
notice of appeal together with the records on appeal must be
filed within 30 days.
In both instances, whether Motion For New Trial (MNT) or
Motion for Reconsideration (MR), it must be filed before the
judgement becomes final?
YES. Specifically, it must be filed within the period of taking an
appeal.
One of the evidence you wanted to present was a receipt to
prove that payment has already been made, but you cannot
find the receipt. Decision was rendered holding you the
defendant liable. After the decision was rendered, you
found the receipt in your drawer, can you file for a motion
for new trial for newly reception of evidence?
NO. Because according to the rules newly discovered evidence
is only a ground for a motion for new trial if such evidence could
not, with reasonable diligence, have discovered and produced
at the trial. In this case, the receipt could have been found if
reasonable diligence was exercised.
What must be alleged and attached?
The motion shall be made in writing stating the ground or
grounds therefore, a written notice of which shall be served by
the movant to the adverse party.
A MOTION FOR NEW TRIAL (MNT) must follow the following
conditions:
• MOTION IS FRAUD, ACCIDENT, MISTAKE OR
EXECUSABLE NEGLIGENCE: It shall be supported by
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affidavits of merits which may be rebutted by counter-
affidavits
• NEWLY DISCOVERED EVIDENCE: it 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.
In a MOTION FOR RECONSIDERATION the motion shall point
out specifically the findings or conclusions of the judgement or
final order which are not supported by evidence or which are
contrary to law, making express reference to the testimonial or
documentary evidence or the provisions of law alleged to be
contrary to such findings or conclusions.
You filed a motion for reconsideration, it was denied. Can
you file second motion for reconsideration?
NO. A second motion for reconsideration is prohibited.
If a motion for new trial is denied, can you assail it by
certiorari?
NO. An order denying a motion for new trial or reconsideration
is not appealable, the remedy being an appeal from judgement
or final order.
What will you appeal?
The decision itself that you are appealing.
Is it indispensable to file a Motion for reconsideration (MR)
when you file an appeal?
NO. You can file either an MR or go straight to an appeal.
Unlike in CERTIORARI, A motion for reconsideration (MR) as
a general rule is indispensable because in certiorari you can
avail of it when there is no speedy, plain, adequate remedy
under the ordinary course of law.
If a motion for new trial is granted what is the effect?
If a new trial is granted, the original judgement or final order shall
be vacated, and the action shall stand for trial de novo.
Accordingly, there will be a new trial.
Does that mean that all evidence previously presented will
be dispensed with?
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.
Can we have a partial new trial or reconsideration?
YES
PARTIAL NEW TRIAL OR RECONSIDERATION
If the grounds for a motion under the rule appear to the court to
affect the issues to only a part, or less than all of the matter in
controversy, or only, 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 judgement or final order
upon the rest
RULE 38
RELIEF FROM JUDGEMENTS, ORDERS, OR OTHER
PROCEEDINGS
PETITION FOR RELIEF OF JUDGEMENT
It is a remedy provided by law to any person against whom a
decision or order is entered through fraud, accident, mistake or
excusable negligence.
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Where do you file a petition for relief of judgement?
In the same court and in the same case where the judgement
was rendered.
What is the period to file a petition for relief of a judgement?
It must filed within 60 days after the petitioner learns of the
judgement, final order, or other proceeding to be set aside, and
not more than 6 months after such judgement or final order was
entered, or such proceeding was taken.
What are the grounds for petition for relief from judgement?
When a judgement or final order is entered, or any other
proceedings is thereafter taken against a party in any court
through fraud, accident, mistake or excusable negligence.
What kind of fraud?
EXTRINSIC FRAUD
Can you give me an example of an extrinsic fraud?
When one of the parties gave to the clerk the old address of the
defendant knowing that he is no longer a resident of the place.
Is a petition for relief from judgement an original action that
requires a certification of forum shopping?
NO
Should a petition from relief of judgement be verified?
YES, it must be verified.
During the period to file an appeal or MR, can you file a
petition of relief from judgement?
NO. Because in petition for relief there must be an entry of
judgement or final
From the time a petition for relief from judgement, what
happens next?
Order to file an Answer. If a petition is sufficient in forma and
substance to justify relief, the court in which it is filed, shall issue
an order requesting the adverse party to answer the same within
15 days from receipt thereof.
You file a petition for relief of judgement, the court will order
the adverse party to file an answer what will happen next?
After the filing of the answer or the expiration of the period
therefor, the court shall hear the petition.
What are the actions of the court?
Grant or deny the petition
• If after such hearing it finds that the allegations are NOT
TRUE, the petition shall be DISMISSED.
• If it finds the allegations to be TRUE: it shall set aside the
judgement or final order or other proceeding complained of
upon such terms as may be just. Thereafter the case shall
stand as if such judgement, final order or other proceeding
have been rendered issued or taken.
The court shall then proceed to hear and determine the case as
if a timely motion for new trial or reconsideration had been
granted by it.
NOTE: this is not always the case. Look at Section 2 of Rule 38,
it talks about one who is prevented from taking an appeal.
SCENARIO 1: For instance, Rania is the plaintiff and she won
the case. The Defendant is Clarice. Rania when to the house of
Clarice and pretends to be Clarice. Rania waits for the decision,
so that she can pretend to be Clarice. So it is as if Clarice has
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no notice of the decision such that she does not know that she
lost the case. Rania did this so that Clarice cannot file an appeal.
This is an extrinsic fraud.
So, in this case, once Clarice learns of the decision provided that
it is within 6 months from the finality of the decision and 60 days
from the day she discovers, a petition for relief can be filed. She
will allege extrinsic fraud.
If the court finds after the answer, Clarice will be allowed to file
an appeal.
SCENARIO 2: if Rania issued fake decisions making it look like
that the case is being reset so Clarice was not able to attend the
hearing and she could not present evidence. Clarice was
deemed to have been waived. This is again an extrinsic fraud.
In a petition for relief, Clarice can be allowed to adduce evidence
in his behalf as if there is a motion for new trial.
SCENARIO 3: Clarice did not learn of the decision because
Rania prevented her from learning it. The period to file an
appeal has lapsed. In this example, the period lapsed and
Clarice still filed a petition for relief alleging that she filed out of
time because of extrinsic fraud. The appeal is denied for being
filed out of time.
In SECTION 7, the appeal will be set aside and then the
appeal will be allowed.
A decision becomes final and executory after the lapse of
the period to file an appeal such as 15 days or 30 days as
the case may be. If you file a petition for relief, it
presupposes that the decision is already final and
executory?
YES. So, it means that execution is already a matter of right
because the period of appeal has already lapsed.
Will the filing of a petition for relief from judgement suspend
the execution judgement?
NO. Even if your petition is pending, the judgement can still be
executed.
What is your remedy?
Preliminary Injunction. 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.
What must be filed?
A preliminary injunction may be granted upon the filing by the
petitioner of a bond in favor to the adverse party, conditioned
that if the petition is dismissed or the petitioner fails on 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 other proceedings following
the petition.
Is the filing of the application sufficient to suspend the
execution?
NO. The injunction must be issued. The remedy is to file it but
you must obtain the injunctive relief. In the absence of the
injunction the execution will continue.
Your remedy is to obtain an injunction to restrain the court from
executing the decision.
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 RULE 47 PERIOD TO FILE
ANNULMENT OF JUDGEMENT OR FINAL ORDERS AND Within 60 days after the • EXTRINSIC FRAUD:
RESOLUTIONS petitioner learns of the the action must be filed
judgement, final order, or within 4 years from
PETITION FOR ANNULMENT OF JUDGEMENT other proceeding to be set discovery
It is a remedy granted only under exceptional circumstances aside, and not more than 6 • LACK OF
provided that petitioner has failed to avail himself of the ordinary months after such judgement JURISDICTION: it must
or other appropriate remedies provided by law without fault on or final order was entered, or be filed before it is
his part. such proceeding was taken. barred by laches or
estoppel.
It is an original action, which is separate and distinct and FILING AND CONTENTS OF PETITION
independent of the case where the judgement is sought to be • Verified Petition • Verified Petition
annulled is rendered. • Affidavits showing • There must be
Fraud, Accident, certificate against forum
COVERAGE Mistake, or excusable shopping
Annulment by the Court of Appeals of judgement or final orders negligence • Affidavits of witness and
and resolutions in civil actions of the Regional Trial Courts (RTC) documents supporting
for which ordinary remedies of new trial, appeal, petition for relief cause of action
or other appropriate remedies are no longer available through EFFECT
no fault of the petitioner. If after such hearing it finds A judgement of annulment
that the allegations are set aside the questioned
NOTE: this is only filed as a last resort when you do not have NOT TRUE, the petition shall judgement or final order or
any other remedies that are available. be DISMISSED. resolution and render the
same null and void, without
GROUNDS FOR PETITION FOR ANNULMENT OF prejudice to the original
JUDGEMENT If it finds the allegations to action being refiled in the
The annulment may be based only on the grounds of extrinsic be TRUE: it shall set aside proper court.
fraud and lack of jurisdiction. the judgement or final order
or other proceeding However, where the
Extrinsic fraud shall not be a valid ground if it was availed of, or complained of upon such judgement or final order or
could have been availed of, in a motion for new trial or petition terms as may be just. resolution is set aside on the
for relief. Thereafter the case shall ground of extrinsic fraud, the
stand as if such judgement, court may on motion order
When the period of appeal is still existing, you cannot file a final order or other the trial court to try the case
annulment of judgement? proceeding have been as if a timely motion for new
YES rendered issued or taken. trial has been granted
therein.
When a petition for relief is still available, you cannot file an
annulment of judgement?
YES When you file a petition for annulment assailing the
judgement of the RTC, do you file it at the CA?
PERIOD TO FILE YES. (B.P. 129) It is under the original jurisdiction of the Court
• EXTRINSIC FRAUD: the action must be filed within 4 years of Appeals to have an annulment of judgements of the RTC. In
from discovery the same way, if you are assailing the decision of the MTC by
• LACK OF JURISDICTION: it must be filed before it is annulment of judgements, you file it with the RTC.
barred by laches or estoppel.
Petition for annulment of judgement is it an appeal or an
DISTINGUISH BETWEEN PETITION FOR RELIEF FROM original judgement?
ANNULMENT OF JUDGEMENT Original Judgement.

When there is deprivation of due process it falls under

PETITION FOR RELIEF ANNULMENT OF which ground?
JUDGEMENT Lack of jurisdiction. Because a court cannot render a valid
NATURE judgement if it runs counter to the Constitution.
Remedy. It is not an original Original Action
action. Should your petition for annulment of judgement be
GROUNDS accompanied by a certificate of forum shopping?
• Fraud • Extrinsic Fraud YES
• Accident • Lack of Jurisdiction
• Mistake What is the reason why we need to attach a certificate for
• Excusable Negligence forum shopping?
WHERE DO YOU FILE Because it is an original action.
In the same court where the For MTC judgments: RTC
judgement was rendered For RTC judgements: CA
For CA judgements: SC

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What should be alleged in your petition?
Allege 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.
What can you attach for your petition of annulment of
judgement?
A certified true copy of the judgement or final order or resolution
shall be attached with 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
affidavit of witnesses or documents supporting the cause of
action or defense and a certification against forum shopping.
ACTION OF THE COURT
Should the court find no substantial merit in the petition, the
same may be dismissed outright with specific reasons for 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.
Can a court dismiss a petition for annulment of judgement
outright?
YES. If the court finds no substantial merit in the petition. When
it finds no reason or merits on the petition.
If the court finds prima facie merit petition?
Give due course and serve summons.
Why does it have to serve summons? Can the Court of
Appeals serve summons?
Yes. The CA can serve summons because it is an original
action.
After the issuance of summons what will happen next?
The procedure in ordinary civil cases shall be observed. So,
there can be trial. The CA can conduct trial.
Can the CA refer the conduct of trial for reception of
evidence to the RTC?
YES
Who will make the ruling? Will it be the RTC because it
received the evidence?
The CA will still be the one to make the ruling.
What happens to the prescriptive period of filing of the case
upon the filing for petition for annulment of judgement?
It shall be suspended from the filing of the original action until
the finality of the judgement of the Court of Appeals.
Is it absolute that there is suspension of the prescriptive
period? Is there an exception?
The prescriptive period shall not be suspended where the
extrinsic fraud is attributable to the plaintiff in the original action.
RELIEF AVAILABLE
The judgement of annulment may include the award of
damages, attorney’s fees and other relief.
If the questioned judgement or final order or resolution had
already been executed, the court may issue such order of
restitution or other relief as justice and equity may warrant under
the circumstances.
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Can you ask for damages?
YES
Attorney’s fees?
YES
What if during the pendency of the annulment of judgement,
the execution already takes place and later on the
annulment of judgement is granted?
The court may issue such orders of restitution or other relief as
justice and equity may warrant under the circumstances.
EFFECT OF ANNULMENT OF JUDGEMENT IS GRANTED
A judgement of annulment set aside the questioned judgement
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 judgement or final order or resolution is 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 has been granted therein.
RULE 39
EXECUTION, SATISFACTION, AND EFFECT OF
JUDGEMENTS
EXECUTION
Execution is the remedy provided by law for the enforcement of
a judgement. It also refers to the process of enforcing the
judgement
When we talk about jurisdiction, the power of the court also
includes the power of the court to enforce a judgement rendered.
Accordingly, Jurisdiction is the power to hear, decide and
enforce the judgement because it is the court that will render the
decision that enforced the judgement.
The writ is issued against whom? Is it not directed to the
Sheriff?
The writ is actually addressed to the sheriff telling him to enforce
the judgement of the court. That is why if you are the judgement
debtor and you do not comply with the judgement despite the
writ of execution you will not be held in contempt.
Because for you to be held in contempt you must disobey the
order of the court. But the writ orders the Sheriff to enforce
the judgement.
The time you will be held in contempt is if you disobey the order
of the court directed against you but the writ is addressed to the
Sheriff directing him to enforce the judgement.
What should be contained in the writ of execution?
Section 8 provides that 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 judgement or order and;
(3) Require the sheriff or other proper officer to whom it is
directed to enforce the writ according to its terms, in the
manner provided in Section 8, Rule 39.
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Judgement is that defendant should vacate the premises
(accion publiciana) and deliver the possession. The
judgement directs the transfer of possession but the writ of
execution issued provides for the transfer of the
possession AND transfer of title, is it valid?
NO. It must conform of the judgement of the court. Since in this
case, the judgement only directs the transfer of possession the
writ of execution is limited to the transfer of possession.
Judgement provides among others, that it is for a nullity of
marriage on the ground of psychological incapacity. The
judgement provides for the registration of the judgement of
nullity decree in the civil registry. We know that that as a
consequence of a nullity of marriage, the property regime
of the spouses will now fall under Article 147 of the Family
Code which is one of co-ownership. Will the judgement
necessarily include that they should partition the property
as co-owners?
Even without stating it, necessarily as a consequence, the
property regime will be under Article 147 subject to co-
ownership. This is true even if it is not specified.
If you are the spouse who won the case, what will you do
for the property to be divided?
The spouse can either file for a judicial or extrajudicial partition
of the property.
EXECUTION AS A MATTER RIGHT
Execution becomes a matter of right
1. On motion, upon a judgement 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
2. If the appeal has been duly perfected and finally resolved,
the execution may forthwith be applied for in the court of
origin, on motion of the judgement oblige, submitting
therewith certified true copies of the judgement or
judgements 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 so requires, direct the court of origin to issue a
writ of execution. (SECTION 1, RULE 39)
When does a judgement become final?
After the lapse of the reglementary period.
Is it correct to say that execution can only happen when a
decision is final, executory and unappealable? Can we only
have an execution when the judgement is immutable?
NO. An execution can be made when the judgement or final
order is pending on appeal known as discretionary execution.
How do you obtain execution what should you file?
By a motion
Within what period?
The parties should file a motion within 5 years from the entry of
the judgement.
If you fail to do so, what will happen?
Where do you file your REVIVAL OF JUDGEMENT?
The RTC has original and exclusive jurisdiction. A revival of
judgement is an action incapable of pecuniary estimation.
DISCRETIONARY EXECUTION
The execution, ordered by the court in its discretion, of a
judgement or final order during the pendency of an appeal.
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REQUIREMENTS
• Motion of the prevailing party with notice to the adverse
party
• Upon good reasons to be stated in the special order after
due hearing.
When does it take place?
Pending appeal
Where do you file your motion for execution pending an
appeal after you perfect the appeal?
It depends.
• COURT OF ORIGIN: When it still exercises residual
jurisdiction of the case.
• APPELATE COURT: When the court of origin has already
lost its jurisdiction over the case.
When will there be residual jurisdiction?
When the records of the case are still with the lower court
despite the perfection of the appeal.
Examples of decision which are not final but are
immediately executory.
• Judgements in actions for injunction, receivership,
accounting and support.
• In cases of Unlawful Detainer
• In cases of Forcibly Entry
If it is immediately executory, do you still need to file a
motion for execution? Or it will already execute as a matter
of procedure?
NO. It is still necessary to file a motion for a writ of execution.
As a general rule, the appeal will stay the execution unless
it is immediately executory or you have an execution
pending an appeal. You need to revive a judgement when
the period to execute which is five years from entry has
lapsed, from the time that there is already an action for that
revival of judgement and it becomes final and executory.
Should we move to execute that revived judgement?
YES
Within what period?
Within 5 years from the entry of the judgement.
By motion but by independent action. The prevailing party
should file an action for revival of the judgement after 5 years
but within 10 years from the date of its entry. When the
judgement has been has been revived, the prevailing party can
then enforce it by motion within 5 years from the date of entry of
the revived judgement. (SECTION 6)
You failed again to execute, another 5 year period lapses
and you did not execute. Can you revive the revived
judgement?
Yes. The revived judgement mat also be enforced by motion
within 5 years from the date of entry and thereafter by action
before it is barred by the statute of limitations.
There is an appeal that is filed. So, there is an execution
pending an appeal. You are the losing party, what is your
remedy to stop the execution pending on appeal?
Discretionary execution may be stayed upon the filing of a
SUPERSEDEAS BOND that is conditioned upon the
performance of the judgement or order allowed to be executed
in case it shall be finally sustained in whole or in part.
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REMEDY SPECIFIC TO FORCIBLE ENTRY OR UNLAWFUL
DETAINER
If the judgement is one for forcibly entry or unlawful detainer, it
is immediately executory even if you appeal it. So your remedy
is to file supersedeas bond after you perfect the appeal but
additionally you need to pay monthly deposit of the amount
adjudged.
Let us say that it is an unlawful detainer and you are liable to pay
unpaid rentals. The amount is in the contract. But if the amount
is not in the contract, the court adjudges an amount for
reasonable use and enjoyment of the premises.
So, in addition to the supersedeas bond, the amount in the order
or judgement must be deposited to the court.
IF YOU FAIL TO DEPOSIT, the other party can already move
for execution.
Is there a judgement that becomes final and executory that
cannot be executed?
• When subsequent facts occur which render execution
impossible, unjust or inequitable
• Where the judgement has been novated by the parties
• Where the judgement obligor has complied with the
judgement
• Where a temporary restraining order or preliminary
injunction is issued by the proper court in a petition for relief
or annulment of judgement
• When there is a compromise agreement
Rule 63 of the ROC. In action for declatory relief, in a declaratory
relief the court only declares the rights of the parties. The Court
in an instrument interprets the rights of the parties. The
judgement there is only a declaration of rights.
You use it for vagueness in a contract or reformation of a
contract. You will not execute anything because the judgement
declares the rights. There is nothing to execute in that.
The judgement was executed pending appeal. On appeal
the judgement was reversed, what will happen?
Where the executed judgement is reversed totally or partially or
annulled, on appeal or otherwise, the trial court may, on motion,
issue orders of restitution or reparation of damages as equity
and justice may warrant under the circumstances.
Within what period should you bring an action for revival of
judgement?
Within 10 years from the entry of judgement.
NOTE: Within 5 years from the entry is for the execution. After 5
years, the revival of the judgement. So, it has to be within 10
years.
What happens if you won the case against X, who is a
debtor, the decision said you need to pay the defendant
P500,000. At the day he received it, the debtor died.
Because he died, no body appealed. The decision become
final and executory. Can you file it against a dead
defendant? What is your remedy?
NO. You cannot file against a dead defendant. You file your
claims on the settlement of estate.
In wills and successions, no properties will pass unless the will
has been admitted for probate. That means you cannot move to
execute in your case because it will affect the property of the
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deceased. The court that has jurisdiction over the property of the
deceased is the court where the settlement is pending. Either by
(1) testate or (2) intestate.
In settlement, the properties will be distributed to the heirs after
collation. But before that happens you need to pay for the
obligations of the estate. So, what you need to do is that:
Whether the death happens before or after the decision the point
here is you can only enforce it by bringing the judgement and file
it to the settlement court to claim the amount of the estate and
then the preference of credit will apply
Is there an instance, after the death of the judgement debtor
you can still execute in the case?
As long as there is already a levy on the property and there is a
death, it will continue to the auction of sale.
The reckoning point whether or not you will file it with the
settlement case or proceed in execution in the original case, is
whether or not it has been levied upon.
So, if you are the creditor, you must immediately make a levy on
the property.
The decision is appealed to the Court of Appeals and from
the CA to the Supreme Court. The SC affirmed the decision,
where will the execution happen? The SC? CA? or in the
Court of Origin?
The Court of Origin. The Supreme Court should forward the
case in the Court of origin.
A writ of execution is issued what should the sheriff do? If
it is a money claim?
MONEY CLAIM – immediate payment on demand from the
judgement obligor of the full amount in the writ of execution and
all lawful fees. The judgement obligor shall pay in cash, certified
bank checks payable to the judgement obligee or any amount of
the judgement acceptable to the latter, the amount of the
judgement debt under the proper receipt directly to the
judgement oblige or his authorized representative if present at
the time of the payment.
The debtor gives money to the sheriff, should the sheriff
deliver it already to the judgement creditor?
The lawful feels shall be handed to the sheriff who in turn shall
hand over the said amount within the same day to the clerk of
court that issued the writ.
If the same is not practicable, the sheriff shall deposit the said
amounts to a fiduciary account in the nearest government
depository bank of the RTC of the locality.
The Clerk of Court shall then arrange for the remittance of the
deposit to the account of the court that issued the writ whose
clerk of court shall deliver said payment of the judgement
obligee in satisfaction of the judgement.
EXCESS – the excess, if any, shall be delivered to the
judgement obligor while the lawful fees shall be retained by the
clerk of court for disposition s provided by law.
If payment is already made then in which case the court will
deduct from the amount the legal fees before it is transmitted to
the judgement obligor.
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How do you make a levy?
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 judgement obligor is entitled.
Levy on real property
What will happen if the debtor refuses to make a payment?
LEVY. If the judgement obligor cannot pay all or part of the
obligation to the judgement oblige, the officer shall levy upon the
properties of the judgement obligor. (SECTION 9 (b))
What may be levied on?
Both real and personal properties. The officer shall levy upon
the properties of the judgement obligor of every kind and nature
whatsoever which may be disposed of for value and not
otherwise exempt from execution.
Can you levy all at once?
Levy only the amount sufficient to cover the amount stated in the
judgement.
Can the debtor choose which property to levy on?
The judgement obligor is given the option to immediately choose
which property or part thereof may be levied upon, sufficient to
satisfy the judgement.
If he does not choose, which one will be levied on first?
If the judgement obligor 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 the judgement.
When there is levy, the property is attached. Is the levy the
same as a garnishment?
NO. A levy creates a lien over the property to secure the
satisfaction of the debt.
In garnishment a third person having possession or control of
the credits is asked whether the judgement obligor has sufficient
funds to satisfy the judgement. The credits that the third person
has control over shall be used for the satisfaction of judgement.
What can be the subject of garnishment?
• Bank deposits
• Financial interest
• Royalties
• Commissions
• Other personal property not capable of manual delivery in
the possession or control of third parties
Ms. Villena is judgement debtor and last year Mr. Suarez
borrowed in the amount of P1 million. The loan is already
due and demandable. Can the loan due to Mr. Suarez be the
subject of a garnishment?
YES
What about bank deposits?
Yes. When you deposit with a bank, it is a mutuum or a contract
of loan. You as the depositor are the creditor because you are
delivering money to the bank, and the bank has the obligation to
return the money upon your demand such as when you withdraw
the money. The bank you deposited is the same amount that
they will return.
It is a loan that is why it is subject to garnishment. It is like a
receivable of the debtor.
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Everything (money) that the debtor may receive may be a
subject of a garnishment.
Can a garnishment be on a third person?
YES
Do you need to serve summons to bind that third person?
So that the court can have jurisdiction over the garnishee?
NO. Because by issuance of the order of garnishment, the
garnishee is already bound by the court and needs to comply.
Let us say that Mr. Kho is the debtor of the debtor, the
amount that is payable to the judgement debtor or the
amount you owe is deemed garnished. The Court ordered
you to keep it safe and not for it to be released. However,
Ms. Andaya, your creditor, is already demanding for the
payment but Mr. Kho refused because he wants to follow
the order of the Court. Can he be held liable to Ms. Andaya
for your refusal to pay?
NO
If the judgement involves a conveyance of property. Let us
say the title should be transferred in the name of Ms.
Panandigan. So, there should be a deed of conveyance to
effect the transfer of her name. But the judgement debtor
despite the issuance of the writ of execution refuses to
comply, what can be the remedy?
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.
The Court will issue an order divesting one of the properties and
vesting it to the one entitled to it and it shall have an effect as if
there is a conveyance.
There is an action for forcible entry. The Court ruled that the
one in possession has no right to possess it and must
vacate the premises. He refuses to vacate. Contempt
cannot lie because the writ is directed against the sheriff.
What is the remedy?
He may avail the assistance of the police officer. The sheriff 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 judgement oblige in possession of such property.
(SECTION 10, (c))
There are structures on that property and the order says
that you must vacate the premises free of structures, can
you already demolish the property?
NO. the officer shall not destroy, demolish or remove said
improvements except upon special order of the court, issued
upon motion of the judgement oblige after due hearing and after
the former has failed to remove the same within a reasonable
time fixed by law.
What will the court issues?
A Writ of Demolition
The property has been levied upon; the next step is to sell.
Is it a private or public sale?
Public Sale
Before you can have valid sale, what is required?
Before the sale of property on execution, notice thereof must be
given as follows:
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• PERISHABLE PROPERTY – posting a notice of the time
and place of the sale in 3 public places, preferably in
conspicuous areas of 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.
• PERSONAL PROPERTY – by posting a similar notice in
the three public places above mentioned for not less than 5
days
• REAL PROPERTY – by posting for 20 days in 3 public
places a similar notice particularly describing the property
and stating where the property is to be sold, and if the
assessed value of the property EXCEED P50,000 by
publishing a copy of the notice once a week for two
consecutive weeks in one newspaper selected by raffle,
whether in English or Filipino, or any major regional
language published, edited and circulated or, in the
absence thereof, having general circulation in the province
or city.
How do you effect the notice?
Posting and publication if the assessed value is more than
P50,000 for real property
For movable property, by posting.
The notice shall specify the following the place, Date, Exact time
of the sale which shall not be earlier than 9 o’clock in the morning
and not later 2 o’clock in the afternoon. The place of the sale
may be agreed upon by
Can the creditor participate in the auction?
YES
Is there an instance when the creditor cannot participate in
the auction?
What is the purpose of the posting or publication of the
notice, as the case may be, of the auction sale?
So that third persons or others persons that have an interest
over the properties may be informed of the auction sale.
This is because you want to have a lot of bidders because it will
increase the price.
In Sales, even if the bid is not that high it is not a void sale. This
is because it is in favor of the judgement debtor. If the price is
not that high, so if the value for example the property is worth
P5 million but it is only sold for P500,000, it is for the benefit of
the judgement debtor. Because the price he needs to pay for
redemption is only P500,000.
What is your remedy so you will not lose your property in
an auction sale?
You may pay the amount.
Can all property be subject of an execution?
NO. Except as otherwise expressly provided by law, the
following property, and no other, shall be exempt from
execution:
(a) The judgement obligor’s family home as provided by law, or
the homestead in which he resides and land necessarily
used in connection therewith – note in Urban Area to the
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extent of P300,000 and in Rural Area to the extend to
P200,000
(b) Ordinary tools and implements personally used by him in
his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other
beasts of burden, such as the judgement obligor may select
necessarily used by him in his ordinary occupation
(d) His necessary clothing and articles for personal use,
excluding jewelry;
(e) Household furniture and utensils necessary for
housekeeping, and used for the purpose by the judgement
obligor and his family, such as the judgement obligor may
select of a value not exceeding one hundred thousand
pesos;
(f) Provisions for individual or family use sufficient for four
months;
(g) The professional libraries and equipment’s of judges,
lawyers, physicians, pharmacists, dentists, engineers,
surveyors, clergymen, teachers and other professions, not
exceeding three hundred thousand pesos in value
(h) One fishing boat and accessories not exceeding the total
value of one hundred thousand pesos owned by a
fisherman and by the lawful use of which he earns his
livelihood
(i) So much of the salaries, wages, or earnings of the
judgement obligor 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
(l) The right to receive legal support, or money or property
obtained as such support, or any pension or gratuity from
the Government
(m) Properties specially exempted by law.
But no article or species of property mentioned shall be exempt
from execution issued upon a judgement recovered for its price
or upon judgement of foreclosure of a mortgage thereon.
If there is no notice of the sale of the execution, what is the
effect?
If there is notice of the sale the sale is void.
In courts there is a bulletin board which provides for the sale of
the properties. People just go to court to check what properties
they can buy.
The property was sold in the auction. However, the highest
bidder did not pay, what will happen?
If the purchaser refuses to pay, the officer may again sell the
property to the highest bidder.
So, every time that the highest bidder will not pay, another
auction will be made.
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 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
entitled to the proceeds of the execution unless the execution
has been fully satisfied, in which even such proceeds shall be
for the benefit of the judgement obligor. The officer may
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thereafter reject any subsequent bid of such purchaser who
refuses to pay. (SECTION 20)
CONTENTS OF CERTIFICATE OF SALE
Upon the sale of real property, the officer must give to the
purchaser a certificate of sale containing:
• A particular description of the real property sold;
• The price paid for each distinct lot or parcel
• The whole price paid by him
• 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 located.
If there is a third-party claimant it should also mention that there
is a third party claimant claiming.
The third person is claiming to be the owner of the property
subject of the execution. What is the remedy of a third
person?
When a third person makes an affidavit of his title thereto or right
to possession thereof, stating the grounds of such right or title
and serves the same upon the officer making the levy and a copy
thereof upon the judgement oblige, the officer shall be bound to
keep the property, unless such judgement obligee, on demand
of the officer
• Files a bond approved by the court to indemnify the
third-party claimant in a sum not less than the value of
the property levied on.
• In case of disagreement on the value, the same shall
be determined by the court issuing the writ of
execution.
No claim for damages for the taking or keeping of the property
may be enforced against the bond unless the action thereof is
filed within 120 days from the date of the filing of the bond.
What is the remedy of the movant, the one who won the
case, so that execution shall proceed? How will he fight the
tercira?
He should post a bond.
When is the period to redeem a property sold in an action?
It must be within 1 year from the time of the judgement.
Is there an exception?
Yes. When the property so redeemed is redeemed again. It must
be redeemed within 60 days after the last redemption upon
payment of the sum paid on the last redemption.
Who may redeem the property?
• Judgement obligor or his successor in interest in the whole
or any part of the property
• A creditor having a lien by virtue of an attachment
judgement or mortgage on the property sold, or on some
part thereof, subsequent to the lien under which the
property was sold. (SECTION 27)
These are what we called junior encumbrancers.
If the junior encumbrancer will redeem the property, what
should be paid?
The purchase price or the amount of his purchase with 1% per
month interest thereon and the other costs incurred for the
redemption.
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After the redemption of a junior encumbrancers, can
another creditor redeem it?
YES. Provided that it is done within the period 60 days from the
last redemption.
What should the subsequent redemptioner pay?
The sum paid on the last redemption plus the costs and interest.
What if the first redemptioner is the judgement debtor, can
a junior encumbrancer redeem after the judgement debtor
redeems?
NO. once the judgement debtor redeems the property, no other
redemptions may be made.
During the period of redemption, will the title already be
transferred in the name of the highest bidder?
NO. The highest bidder must wait for the period of redemption
to lapse before it can be transferred in his name.
The fruits that grew during the period of redemption, to
whom will it pertain? Highest bidder or the judgement
debtor who redeems the property?
The judgement debtor, because he does not lose his right over
the property.
Why is it other creditors or junior encumbrancers may
redeem the property?
Because they have an interest in such property.
In order to effect a redemption what should be presented?
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 judgement or final order under which he
claims the right of redeem certified by the clerk of court wherein
the judgement or final order was entered.
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 in the affidavit executed by
him or his agent, showing the amount then actually due on the
lien.
The judgement creditor learned that the judgement debtor
was already trying to come up with the funds needed to
redeem the property. So the judgement creditor, started
burning the trees and plants on that property. What is your
remedy?
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 judgement oblige, with or without notice, but 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 the buildings
thereon while he occupies the property.
What writ will they obtain?
Writ of Injunction.
When should a sheriff make a return?
Immediately after the judgement has been satisfied in part or in
full. If the judgement cannot be satisfied in ful within 30 days
after receipt of the writ, the officer shall report to the court and
state the reason therefor. Such writ shall continue in effect
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during the period within which judgement may be enforced by
motion.
The officer shall make a report to the court every 30 days on the
proceedings taken thereon until judgement is satisfied in full, or
effectively expires. The returns or periodic reports shall set forth
the whole of the proceedings taken, and shall be filed with the
court and copies thereon promptly furnished the parties.
Where should the return be filed?
To the Court issuing it.
What if the property was sold in an auction where the
creditor is the highest bidder. Should the creditor pay the
amount to the sheriff?
YES
There is partial execution. The obligation dues is P1M. But
one of the real property valued at P2M was levied and sold
in an auction for P200,000. What will happen next since the
judgement is not satisfied? Should you file a new case?
You want to continue with the execution in so far as levying other
properties. Because the rules provide that you will levy as much
as needed in order to cover for the obligation.
The examination will only take place if you do not know whether
there are properties. So, the court may call on third persons or
judgement debtors.
What is the effect if they do not appear?
Contempt
EFFECT OF FOREIGN JUDGEMENT
The effect of a judgement or final order of a tribunal of a foreign
country, having jurisdiction to render the judgement or final order
is as follows
• SPECIFIC THING the judgement or final order is conclusive
upon the title of the thing
• AGAINST A PERSON, the judgement or final order is
presumptive evidence of a right as between the parties and
their successors in interest by a subsequent title.
How do you repel a foreign judgement? On what grounds?
• Evidence of want of jurisdiction
• Want of notice of the party
• Collusion
• Fraud
• Clear mistake of law or fact
• MOTION FOR RECONSIDERATION
CASE:
Can the right of redemption be a subject of garnishment or
attachment?
You cannot because if you garnish a right of redemption then
you will deprive the debtor a right to redeem. If there is a garnish
on the right of redemption he can no longer exercise the right. It
will automatically go to the creditor.
If there is a property claimed by a terciria and he filed an
affidavit but the winner of the case filed a bond so it was
sold in auction. What is your remedy?
What constitutes the factors of the redemption price?
Interest counted until when?
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Let us say that you are getting married. Both of you applied
for a marriage license, there was posting in accordance
with law. After the period of posting, the marriage license
should already been issued. However, the local civil
registrar appears to be the ex-girlfriend, she refuses to
issue that marriage license. What is the nature of the
issuance of the marriage license when all the requirements
are present already?
It is ministerial on the part of the ex-girlfriend. She cannot
exercise discretion.
Because it is ministerial, to compel her to issue that
marriage license, you brought an action for petition for
mandamus and judgement was rendered against her. You
move for execution, but she still refuses to execute the
license. What is the effect of her refusal. What kind of
judgement is this in so far as the subject of execution?
What is the nature of the judgement?
Special Judgement. In this instance, the remedy is contempt
because it does not fall under any of the classes of judgement
under Rule 39.
What is a remedy of a third-party claimant in order for him
to recover title over a property which he claims to be his but
which has been subject of execution?
File a separate action for the determination of the rights of the
parties.
APPEALS
What is an appeal?
An appeal is a proceeding by which a party seeks from a higher
court the review of a judgment or final order of a lower court on
the ground that the judgment or final order is against the
evidence or the law.
RULE 40
ORDINARY APPEAL FROM MTC TO RTC
Rule 40 is the appeal for the first time in the RTC from MTC
judgments rendered in its original jurisdiction. However,
remember that NOT ALL judgments from the MTC may be
subject of an appeal.
MTC – SMALL CLAIMS
Decisions are immediately final and executory. It is
UNAPPEALABLE.
MR IS A PROHIBITED MOTION. You do not need to file MR.
This is an exception to the rule that an MR is indispensable
before you file a petition for certiorari.
REMEDY TO DECISIONS OF MTC IN SMALL CASE
RIGHT REMEDY: PETITION FOR CERTIORARI (RULE 65)
PROVIDED THERE IS GADALEJ.
When you avail of Rule 65, two requirements are:
(1) When there is GADALEJ, and that
(2) there is no appeal, or any plain, speedy, adequate
remedy. Therefore, if an appeal is an available remedy,
even if the decision was rendered with GADALEJ, you
cannot avail of certiorari.
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PERIOD OF APPEAL LAPSED
If your period for appeal has lapsed, you cannot resort to
certiorari because you negligently failed to appeal on time. It was
because of your own fault.
• CERTIORARI IS NOT A REMEDY FOR LOST
APPEAL.
• Motion for Reconsideration is an example of a plain,
speedy, adequate remedy.
• As opposed to an appeal, an MR or motion for new trial
(MNT) is not indispensible before you appeal a case.
NOTE: You can either file an MR or an MNT. Or instead of filing
both motions, you can go straight to filing an appeal.
MTC SUMMARY PROCEDURE
Whether immediately executory or not and ordinary procedure.
Forcible entry and unlawful detainer cases are immediately
executory.
Even if some cases in summary procedure are immediately
executory, the rules do not provide that they are NOT
appealable. Meaning, they can be appealed.
DO NOT CONFUSE EXECUTION WITH APPEAL
There can be execution even during the pendency of an appeal.
Under MTC jurisdiction, there are also cases that fall under
ordinary procedure. Summary procedure and ordinary
procedure under MTC may be subject of an appeal,
regardless of whether the decision is immediately
executory or not.
• A ruling on the merits can be a dismissal or a grant of the
complaint.
• A judgment is one that finally disposes of a case. Even if
your complaint is dismissed, that is still a judgment.
• There are some dismissals that are with prejudice or without
prejudice.
o WITH PREJUDICE: you cannot refile it anymore.
o WITHOUT PREJUDICE: you can refile it.
• REGARDLESS OF WHETHER DISMISSAL IS WITH
PREJUDICE OR NOT, THAT IS STILL A JUDGMENT OR
A FINAL RULING. IT IS STILL A DISMISSAL. Meaning,
refiling is a remedy against your dismissal WITHOUT
prejudice.
o The fact that you can refile it does not make it
an interlocutory order.
What are the two (2) ways to perfect an appeal from the MTC
to the RTC? (Rule 40, Sec. 2)
1) File notice of appeal with the court of origin (MTC); or
2) File notice of appeal with record on appeal.
When is there a record on appeal?
In special proceedings.
What are special proceedings?
Settlement of estate, etc.
To perfect your appeal, is it limited to timely filing your
notice of appeal?
NO. Aside from filing your notice of appeal (or notice with record
on appeal), you also have to pay appeal and docket fees, and
costs.
Is the period within which to file an appeal extendible?
NO. It is inextendible. Rules 40 and 41 appeals are inextendible.
Why? Because it is NOT a matter of right. It is merely a statutory
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right. It means you have to comply with the rules that allow for
appeals. If you do not file within the prescribed period to appeal,
the decision becomes final and executory. Because a decision
becomes final after the lapse of the period within which to
appeal. The doctrine of immutability of judgment then attaches.
Meaning, you cannot alter the decision anymore. You cannot
appeal anymore, or if you did, it will be dismissed.
NOTE: Rules 42 to 45 appeals are extendible.
When is an appeal perfected?
Timely filing of Notice of Appeal
MATERIAL DATE RULE
The material date should be alleged. It is applicable not only in
Rule 40, but also in Rules 41, 42, 43, 45. This allows the court
to determine whether on the face of your appeal, the appeal is
filed on time.
CONTENTS:
• Date of receipt of judgment or final order appealed from
• Date of filing of MR or MNT (if you filed any)
• If the court ruled on your MR or MNT, allege the date you
received it
• Date of perfection of appeal
o SEE: RULE 50, SECTION 1
• Payment of appeal and docket fees – Attach to Notice of
Appeal the receipt of proof of payment
NOTE: SUNLIFE DOCTRINE: Even if not paid at the time of
filing of Notice of Appeal, you are given reasonable time to pay,
provided that it is paid within the period to perfect appeal.
Otherwise, the decision becomes final and executory.
TIME FOR FILING IS INEXTENDIBLE because appeal is only
statutory.
• FILING OF NOTICE OF APPEAL CANNOT BE
EXTENDED.
• FILING OF PETITIONS CAN BE EXTENDED. (See Rule
45)
EFFECT OF FAILURE TO COMPLY
Denial of appeal
WHEN IS THE PERIOD INTERRUPTED?
By the timely filing of an MR or MNT
Neypes doctrine: If you filed MR from 14th day from receipt of
decision, if MR is denied, you have a fresh period of 15 days (or
30 days as the case may be) to file appeal. Also applicable in
criminal cases.
What is the period for perfecting an appeal?
It depends on whether it is under ordinary procedure or special
proceedings. If it is ordinary procedure, within 15 days from
notice of the decision. If record on appeal is required (in special
proceedings), then within 30 days from notice of the decision.
After the lapse of 15 days or 30 days within you perfecting your
appeal, the decision becomes final and executory.
PARTIES
Who are the parties to an appeal?
The appellant and the appellee.
If the original case is A (plaintiff) v. B (defendant), and B appeals,
the only thing that will happen is that the designation will be
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changed: A will be your plaintiff-appellee, B is defendant-
appellant. It will still be A v. B.
What is a record on appeal?
We have special proceedings where we can have multiple
appeals. In the record of appeal, you will provide the record.
Because the record in special proceedings will remain with the
court where the case is pending.
Example:
There is a will executed by the testator. He died. The first thing
to do is to submit the will to probate in order to transfer the
property. Once the will is admitted to probate, the other heirs will
complain. Once they appeal the decision of the probate, that is
a record of appeal. In the record of appeal, they put the full
names of the parties. They include what they are assailing (in
this case, the court’s ruling that admits the will to probate). Then
attach the records forming part of the proceedings, but these
records are not the original records. You just have to attach the
records. The original remains with the probate court. Why?
Because during the pendency of your record on appeal, the
original case continues. They can appoint special administrator
in the meantime during the pendency of your appeal.
NOTE: In special proceedings we have multiple appeals so that
every issue that is appealable, you can assail the subject matter
of that specific issue and the rest of the issues in the case will
proceed.
NOTE: The record on appeal is subject to the court’s approval.
The other party can object to your filing of a notice of appeal with
record on appeal within 5 days. If they do not object, the court
can approve it as presented on the appeal. But if the adverse
party objects to the record on appeal, the court, on that motion
or upon its own motion, may order you to amend your record on
appeal.
What is the period?
Period depends on the court’s order. If there is no period in the
order, within ten (10) days.
Can the period be subject to an extension?
YES, if the court allows for it.
NOTE: Once you perfect an appeal, the court of origin loses
jurisdiction over the subject matter. But with regard to notice of
appeal with record on appeal: The court loses jurisdiction only
over the subject matter thereof. This is because in record of
appeal, it is not the whole case that is subject of an appeal; only
an aspect of a case is being appealed.
RESIDUAL JURISDICTION OF THE COURT (Rule 41, Sec. 9,
last par.)
What is the residual jurisdiction of the court?
“Once the appeal is perfected, the court of origin loses
jurisdiction.” But that is not entirely accurate. There is a residual
jurisdiction of the court (of origin). This takes place after the
appeal is perfected, but before the records are transmitted to the
appellate court. The records are still with the court of origin.
What do you need the residual jurisdiction for? Say, if after
you perfect the appeal, you want to file a motion for the
court to execute pending appeal, where will you file your
motion?
It depends. If the records are still with the court of origin, you file
it with the court of origin because the court of origin still has
residual jurisdiction, notwithstanding the perfection of the
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appeal. But if after perfection of the appeal and the records are
transferred to the appellate court, then you file it with the
appellate court because the court of origin loses all of its
jurisdiction, including the residual jurisdiction.
NOTE: This also happens in criminal cases.
If you want to withdraw your appeal, where do you withdraw
your appeal?
It depends on where the records are after perfection of appeal.
If the records are still with the lower courts or with the court of
origin, file it there. Same thing applies with other reliefs you can
avail of, like provisional remedies.
When should the clerk of court transmit the complete
records of the case? (Rule 40, Sec. 6)
Within fifteen (15) days from the perfection of the appeal, the
clerk of court shall transmit the original record or the record on
appeal, together with the transcripts and exhibits, which he shall
certify as complete. A copy of his letter of transmittal of the
records to the appellate court shall be furnished to the parties.
NOTE: What the clerk of court will furnish to the party is the
transmittal letter, which is like a cover letter. Once the appellate
court receives records, the appellate court will inform the parties
that they received such records.
APPELLANT’S MEMORANDUM
What happens after receipt of the notice of transmittal?
Within 15 days after receipt of the notice of transmittal, the
appellant will file a memorandum.
NOTE: Rule 40: memorandum. Rule 41: brief.
What should you allege in your appellant’s memorandum?
You should assign all the errors that you impute in the lower
court.
NOTE: Appellate court will not rule on matters that you will not
assail in the memorandum. Only the matters assailed as an error
will be subject of review.
Criminal case: it opens the entire case for review.
Civil case: only the assigned errors are subject of
review.
NOTE: You cannot raise matters for the first time on appeal. But
this rule is subject to exceptions:
When there are already admissions of facts or
stipulations of facts;
When there is already judicial admission or judicial
notice. These matters do not require the reception of
evidence.
What happens if the appellant fails to file a memorandum?
The appeal will be dismissed. This is considered a waiver of the
appeal on the part of the appellant. This only applies to the
appellant.
NOTE: You can liken this rule to Rule 17, where the case will be
dismissed if the plaintiff does not comply with the rules.
APPELLEE’S MEMORANDUM
What happens after the filing of appellant’s memorandum?
The appellee should file a memorandum within 15 days from
receipt of the appellant’s memorandum.
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NOTE: If the appelle does not file any memorandum, the period
will just lapse and the case will be submitted for decision.
Submitted for decision: the court will proceed to rule on the case.
The ruling will be based on the review of the records of the entire
case because the entire case will be transmitted to the appellate
court.
If the MTC in its original jurisdiction dismisses the case,
and there was NO TRIAL (such as when there is judgment
on the pleadings or summary judgment), and that judgment
was appealed to the RTC, what can the RTC do?
The RTC can either affirms or reverse.
If RTC affirms on the ground of lack of jurisdiction, you do not
need to refile case with the RTC. The RTC will try the case on
the merits as if it was filed in RTC. If RTC finds that MTC has
jurisdiction (the RTC does not have jurisdiction), the RTC will
remand the case to the MTC for further proceedings or for the
MTC to conduct trial.
If the MTC ruled on the merits, but the MTC had no jurisdiction
over the subject matter, and it was appealed in the RTC and the
RTC has jurisdiction, the RTC will decide the case. Without
prejudice to amendment of pleadings and reception of evidence,
as the interest of justice may require.
RULE 41
APPEAL FROM RTC (ORIGINAL JURISDICTION) TO CA
What cases cannot be appealed?
Rule 4, Sec. 1 provides which cases cannot be appealed:
a) An order denying a motion for new trial or
reconsideration;
b) An order denying a petition for relief or any similar
motion seeking relief from judgment;
c) An interlocutory order;
d) An order disallowing or dismissing an appeal;
e) An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of
fraud, mistake or duress, or any other ground vitiating
consent;
f) An order of execution;
g) A judgment or final order for or against one or mor of
several parties or in separate claims, counterclaims,
cross-claims and third-party complaints, while the main
case is pending, unless the court allows an appeal
therefrom; and
h) An order dismissing an action without prejudice.
In subsection (e), if there is a judgement in a compromise, it is
IMMEDIATELY EXECUTORY. Based on Rule 41, you cannot
appeal it.
What are your remedies against a judgment on a
compromise?
NOTE: If there is refusal to comply with the terms of the
judgment on a compromise, DO NOT INVOKE THE CIVIL
CODE. In the Civil Code provisions on the Katarangang
Barangay, the rule that you will consider it rescinded only applies
if it is a plain compromise agreement that was not submitted to
the court for its approval. But what we are talking about here is
a compromise agreement that has already been approved by
the court. It is not a mere contract. It is in the nature of a decision
of the court, and in fact the doctrine of immutability of judgment
applies. THE RIGHT REMEDY IS NOT TO CONSIDER IT
RESCINDED.
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You have three (3) remedies:
1) If there is refusal to comply with the terms of the
judgment on a compromise, MOVE FOR EXECUTION.
2) If you entered into the compromise on the ground of
fraud, mistake, duress, or any way that your consent
was vitiated, you MOVE TO SET ASIDE. But a denial
of a motion to set aside (a motion denying it) cannot be
a subject of an appeal.
3) For a motion denying your motion to set aside, your
remedy is CERTIORARI UNDER RULE 65,
PROVIDED THERE IS GADALEJ.
NOTE: If it was just a mere error on your part (i.e. you did not
want to enter into a compromise agreement), there is no more
remedy.
What is the test to know if one is an interlocutory order?
Whether or not it leaves something to be done. If it finally
disposes of a case, then it is not an interlocutory order.
NOTE: PERFECTION OF APPEAL: Rules in Rule 40 applies
here.
Residual jurisdiction is the same. The fresh period rule also
applies.
After you perfect your appeal, the records will be submitted.
If it is incomplete, what should the clerk of court do?
If it is incomplete, the clerk of court must make known in the
transmittal that it is not complete. Does it really happen? Yes,
because sometimes the transcript of stenographic notes
(records of the proceeding) are not completed on time.
Sometimes they get destroyed. You have to allege when the
records are not complete.
If the record on appeal is not transmitted within 30 days
from perfection, what should be done?
Either party may, upon motion and notice to the other party, ask
(the trial court) that the record on appeal be transmitted. Once it
is transmitted, the CA will now have jurisdiction.
Once the records are received, what happens?
From receipt of the records, there will be a docketing of the case.
(CA-GR. No. xxxxxx)
NOTE: From Rule 41 in relation to Rule 44, Rules 43, 45, 42,
apply Efficient Use of Paper Rule for the appellant’s and
appellee’s briefs. For example: CA division — 3 copies: 1
originally marked + 2 duplicate copies; SC division — 5 copies:
1 originally marked + 4 duplicate copies.
EFFICIENT USE OF PAPER RULE
What are the relevant provisions of the Efficient Use of
Paper Rule?
AS TO FORMAT AND STYLE:
All pleadings, motions, and similar papers intended for the court
and quasi-judicial body’s consideration and action (court-bound
papers) shall be written in single space with a 1.5 space
between paragraphs, using an easily readable font style of the
party’s choice, of 14-size font, and on a 13-inch by 8.5-inch white
bond paper.
AS TO MARGINS AND PRINTS:
The parties shall maintain the following margins on all court-
bound papers:
Left-hand margin: 1.5 inch
Upper margin: 1.2 inch
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Right-hand margin: 1.0 inch
Lower margin: 1.0 inch
AS TO COPIES TO BE FILED
Unless otherwise directed by the court, the number of court-
bound papers that a party is required or desires to file shall be
as follows:
1) In the SC — 1 original (properly marked) + 4 copies,
unless the case is referred to the SC En Banc, whereby
the parties shall file 10 additional copies.
a. For En Banc, the parties need to submit only
2 sets of annexes: 1 attached to the original,
1 extra copy.
b. For the Division, the parties need to submit
also 2 sets of annexes: 1 attached to the
original, 1 extra copy.
2) In the CA and SB — 1 original (properly marked) + 2
copies with annexes.
3) In the CTA — 1 original (properly marked) + 2 copies
with annexes.
a. On appeal to CTA En Banc, 1 original
(properly marked) + 8 copies with annexes.
4) In other courts — 1 original (properly marked) with the
stated annexes attached to it.
As a rule, the records should be complete. What can be
done if they are not complete?
The clerk of court will make a recommendation to the court to
complete the records.
How will the court complete the records?
It depends. If what is missing are the transcripts, the court will
direct it from the court of origin. If there is lack of copy of certain
exhibits, the court can require any of the parties to produce the
certified true copies.
NOTE: On a record on appeal and then you are required to
amend. And after you transmit it, you make unauthorized
changes: that is a ground for dismissal.
Is it possible that the CA dispense with the requirement of
complete records?
YES. The CA can, on motion or motu proprio, dispense with the
requirement of complete records.
In what instances?
If the completion cannot be accomplished within a sufficient
period due to extreme, insuperable or difficult cases.
NOTE: In RULE 40, what you will file is a MEMORANDUM OF
APPEAL.
In RULE 41, what you will file is an APPELLANT’S BRIEF.
What should be alleged in the memorandum of appeal?
All the assigned errors.
APPELLANT’S BRIEF
What should be alleged in your appellant’s brief? (Rule 44,
Section 13)
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 digest
of the arguments and page references, and a table of
cases alphabetically arranged, textbooks and statutes
cited with references to the pages where they are cited;
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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 judgments;
f) Under the heading “Argument,” the appellant’s
arguments on each assignment of error with page
references to the record. The authorities relied upon
sall 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.
NOTE: Apply Efficient Use of Paper Rule! NOT 7 COPIES,
but rather: 3 copies to the CA division and 2 copies to the
opposing parties.
NOTE: Subject index is like a table of contents.
Page reference to the records must be contained in the
brief. What is the page reference to the records?
Records of the court contain all the records of the proceeding —
from the filing of the complaint, service of summons, decisions,
orders, transcripts. Manually, page numbers are to be put. One
page number per page. In your brief, you must allege: “Records,
page __.” Failure to comply with that rule is a ground for
dismissal.
NOTE: You can photocopy page references to the record. But
can you take a picture? NO.
NOTE: Issues of fact AND law are to be alleged because the
rules provide that if it is only an issue of law, it will be dismissed.
In appeals under Rules 40 and 41, you should allege issues of
facts and law (or just issues of facts, but never just of law).
What is your remedy if your appeal from the RTC contains
only pure question of law?
Disregard the hierarchy of courts. Go to the SC with petition for
review under Rule 45. The jurisdiction of the SC under Rule 45
is to review cases that have pure questions of law.
NOTE: Before you file your appellee’s brief, please take note of
the summary of the rules on dismissal in relation to the
appellant’s brief. The following are grounds for dismissal of
appeal:
Failure to serve 2 copies of appellant’s brief to the
adverse party
Failure to comply with stating of assigned errors and
reference to the records
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 Failure to file appellant’s brief
In assailing an MTC small claims judgment, your remedy is
a petition for certiorari. You file it with the RTC. Once you
file it with the RTC, that is an original action. What is your
remedy when the RTC renders judgment on your petition
for certiorari?
Rule 41. Since certiorari is an original action filed with the RTC
and the RTC rendered judgment in its original jurisdiction (in that
certiorari case), the proper remedy is by filing a notice of appeal
under Rule 41.
NOTE: But take note that under Rule 44, IF WHAT IS
APPEALED IS A DECISION IN CERTIORARI, PROHIBITON,
MANDAMUS, QUO WARRANTO, OR HABEAS CORPUS:
Instead of filing an appellant’s brief, you should file a
memorandum. And the period of thirty (30 days) is
INEXTENDIBLE.
*Appellant’s brief: 45 days (extendible)
Memorandum: 30 days (inextendible)
GENERAL RULE: Not allowed to extend the period.
EXCEPTION: For good and sufficient cause, and only if the
motion for extension is filed before the expiration of the period.
APPELLEE’S BRIEF
What should be alleged in the appellee’s brief? (Rule 44,
Sec. 14)
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 alphabetically 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
insufficiences or inaccuracies as he believes exist 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 of
facts; 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 page of the report
at which the case begins and the page of the report on
which the citation is found.
REPLY BRIEF
What is a reply brief?
After the appellee’s brief is filed, the appellant has twenty (20)
days from notice of the appellee’s brief within which to file a reply
brief.
The court then resolves the case based on the records of the
case. It may, but it is not mandated to, ask the parties to file their
memorandum. This is not to be confused with memorandum
filed in lieu of appellant’s brief that is filed in petitions for
certiorari, prohibition, mandamus, quo warranto, or habeas
corpus.
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IN RELATION TO RULE 41:
PROCEDURE IN THE COURT OF APPEALS
GROUNDS FOR DISMISSAL OF APPEAL
What are the grounds for the dismissal of appeals in the
CA? (Rule 50, Sec. 1)
The following are grounds for dismissal of appeals in the CA:
• Failure, on its face, of notice of appeal/record on
appeal to show the timely filing of the appeal by the
appellant;
• Failure to pay docket fees by the appellant;
• Unauthorized alteration, omissions, or additions in
approved record on appeal by the appellant;
• Failure to serve and file number of copies of
brief/memorandum within the time to do so by the
appellant;
• Absence of specific assignment of errors or page
references to the record in the appellant’s brief;
• Failure of appellant to take necessary steps for
correction/completion of record within the time
provided by the court;
• Failure of appellant to appear at the preliminary
conference;
• If appeal under Rule 41 is based purely on questions
of law;
• If there are orders, circulars, or directives by the CA
and appellant fails to comply;
• If you have an improper mode of appeal.
PRELIMINARY CONFERENCE IN THE CA
What are the purposes of a preliminary conference? (Rule
48, Sec. 1)
At any time during the pendency of a case, the court may call
the parties and their counsel to preliminary conference:
a) To consider the possibility of an amicable settlement,
except when the case is not allowed by law to be
compromised;
b) To define, simplify, and clarify the issues for
determination;
c) To formulate stipulations of facts and admissions of
documentary exhibits, limit the number of witnesses to
be presented in cases falling within the original
jurisdiction of the court, or those within its appellate
jurisdiction where a motion for new trial is granted on
the ground of newly discovered evidence; and
d) To take up such other matters which may aid the court
in the prompt disposition of the case.
NOTE: There are some cases that cannot be subject of a
compromise.
What are some of the cases that cannot be the subject of a
compromise?
Annulment of marriage
Ground for nullity of marriage
Legal separation
Can there be a trial in the CA?
YES. If it is an original jurisdiction of the CA, such as under Rule
47. There can be a trial because it has to follow the procedure.
You can also file a motion for new trial in the CA.
NOTE: While there is trial, the CA can delegate the reception of
evidence to the RTC. The trial will be held in the RTC, but the
CA will be the one the rule on it.
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MOTION FOR NEW TRIAL IN THE CA
When is there a motion for new trial in the CA? (Rule 53,
Sec. 1)
At any time after the appeal from the lower court has been
perfected and before the CA 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 probably
change the result. The motion shall be accompanied by
affidavits showing the facts constituting the grounds therefor and
the newly discovered evidence.
NOTE: The ground is limited to newly discovered evidence.
What is newly-discovered evidence?
Newly-discovered evidence could not have been discovered
with reasonable diligence.
What should be attached to the motion?
Attach the affidavit that will constitute the grounds for newly-
discovered evidence.
What can the CA do after receipt of the motion?
The CA can either grant or refuse that motion. The CA can also
require the taking of testimony, either orally or by deposition.
When should the CA resolve the motion?
The CA shall resolve the motion within 90 days from the date
when the court declares it submitted for resolution.
RULE 42
PETITION FOR REVIEW FROM THE RTC (APPELLATE
JURISDICTION) TO THE CA
MTC TO RTC TO CA
• Covers appeals of RTC decisions rendered in its
appellate jurisdiction.
Should the petition be verified?
YES. The petition should be verified. And just like appeals under
Rules 40 and 41, you need to pay docket and other lawful fees.
Then furnish the adverse party with a copy of your petition
before you file it in court.
What is the period to file?
15 days from notice of the decision
Do we apply fresh period rule here?
YES. Fresh period rule in the Neypes case applies in all kinds of
appeals.
Is the period extendible?
YES, but you need to file within the period to file an appeal.
Let us say that January 16 falls on a Saturday. The last day
to file motion for extension is January 16. Can you argue
that you have until January 18, Monday within which to file
motion for extension?
If the last day to file is January 16, which falls on a Saturday, you
should file the petition by January 18, which is the last day of
the filing of the petition (last working day following Saturday). If
you will file motion for extension of time, file on January 15,
or January 16 if the post office is open.
NOTE: After you file an extension, the maximum that may be
granted is 15 days. As a general rule, you cannot have a further
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extension. But by exception: for the most compelling reasons, it
shall not exceed 15 days. The total then is 30 days.
What should be alleged in the petition?
Put concise statements of matters involved, the issues raised,
the specification of errors of fact or law, or both, allegedly
committed by the RTC. Write all the reasons and arguments
relied upon for your appeal. It should also be verified and
accompanied by a certification of forum shopping to show that
you did not avail of multiple appeals.
NOTE: You do not assail the MTC. It is the RTC error that you
are assailing.
NOTE: In a notice of appeal, you do not need to attach a certified
true copy of the decision you are assailing. In a petition (Rule
42, 43, 45): you always file a certified true copy of the decision
that you are assailing. Additionally, attach pleadings and other
material portions of the record that will support your petition.
Why do you need to attach everything material to your
appeal?
Because unlike in a notice of an appeal, transmittal of record is
NOT MANDATORY in Rule 42. In Rules 40 and 41, the rules
provide for the word “shall” forward the record. In Rule 42, Sec.
7: it says “may,” so it is not mandatory. Here, the court may not
elevate, so you need to attach the relevant records that will
support your petition.
What can the CA do?
The CA may dismiss your petition outright. Note that in notice of
appeal under Rules 40 and 41, it is not discretionary. As long as
timely filed and you paid the docket fees, the appeal shall
proceed as a matter of course. But in here, the CA can deny
outright.
What are the grounds for dismissal by the CA?
If you do not comply with the formal requirement (Rule
42, Sec. 3)
If you do not pay filing and docket fees on time (Rule
42, Sec. 3)
Patently without merit (Rule 42, Sec. 4)
Prosecuted manifestly for delay (Rule 42, Sec. 4)
Questions raised are too unsubstantial to require
consideration (Rule 42, Sec. 4)
When will the CA not give due course to the petition?
If there is no prima facie showing that the lower court committed
error of fact or law that warrant reversal or modification.
Conversely, it will give due course if there is such prima facie
showing.
NOTE: The court can already require the filing of comment even
if the court has not given due course to the petition yet. The court
will issue an order requiring the respondent to file a comment. In
here, the parties become ‘petitioner’ and ‘respondent.’
SUMMARY: If the court does not give due course, the petition
will be dismissed or denied outright. But if the court gives due
course, it only means the court will review the case. It does not
mean your appeal is granted.
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 RULE 43
APPEALS FROM THE COURT OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
What court and quasi-judicial bodies are contemplated by
Rule 43? (Rule 43, Sec. 1)
This Rule shall apply to appeals from judgments or final orders
of the Court of Tax Appeals and from awards, judgments, final
orders or resolutions of our authorized by any quasi-judicial
agency in the exercise of its quasi-judicial functions. Among
these agencies are the:
Civil Service Commission
Central Board of Assessment Appeals
Securities and Exchange Commission
Office of the President
Land Registration Authority
Social Security Commission
Civil Aeronautics Board
Bureau of Patents
Trademarks and Technology Transfer
National Electrification and Administration
Energy Regulatory Board
National Telecommunications Commission
Department of Agrarian Reform under RA 6657
Government Service Insurance System
Employees Compensation Commission
Agricultural Inventions Board
Insurance Commission
Philippine Atomic Energy Commission
Board of Investments
Construction Industry Arbitration Commission
Voluntary arbitrators authorized by law
Is the NLRC covered by Rule 43? (Rule 43, Sec. 2)
NO. It is expressly provided that the NLRC is not covered by
Rule 43.
NOTE: In the Saint Martins Funeral Homes case: From the
NLRC decision, you can file MR. If the MR is denied (assuming
there is no GADALEJ), you have no more appeal. Your remedy
is to file petition for certiorari with the CA. If it is an immediately
executory NLRC decision, the filing of certiorari will not stop the
execution of the NLRC decision. So you have to file for injunctive
relief. But the mere filing of injunction will not suspend the
execution of the NLRC decision. It has to be granted.
In the Ombudsman cases: The summary is that if it is an
Ombudsman administrative case and the Ombudsman makes a
ruling:
If administrative case, does not involve a light penalty,
and does not absolve respondent of the charge —
remedy is appeal under Rule 43
If administrative case, includes a penalty that is light,
or involves a ruling absolving respondent of the charge
— immediately executory; unappealable; remedy is
Rule 65 (assuming there is GADALEJ) and file it at the
CA
In the latter case, since appeal is not allowed, is it
indispensable that you file first an MR before you file a
certiorari?
NO, you do not need to file an MR. This is an example when
an MR is not an adequate remedy. Why? Because the decision
is immediately executory.
NOTE: If OMBUDSMAN in preliminary investigation (criminal
cases) — file MR then petition for certiorari to SC under Rule 65.
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Are the COMELEC and COA covered by Rule 43?
NO. COMELEC and COA are not covered. Remedy is Rule 64.
Is the CSC covered by Rule 43?
YES. CSC is covered by Rule 43.
GROUNDS FOR OUTRIGHT DISMISSAL
What are the grounds for outright dismissal under this
Rule?
Failure to comply with requirements (Rule 43, Sec. 7)
Not filed on time (Rule 43, Sec. 7 in relation to Sec. 6)
No payment of appeal/docket fee (Rule 43, Sec. 7)
Patently without merit (Rule 43, Sec. 8)
Prosecuted manifestly for delay (Rule 43, Sec. 8)
That the questions raised are too unsubstantial to
require consideration (Rule 43, Sec. 8)
Does not find prima facie that the court or agency has
committed errors of facts or law that warrant
modification of the award or judgment
In reviewing a case on appeal with the CA, are the findings
of fact of agencies concerned binding on the CA?
YES. As a rule, the findings of fact of the agencies concerned
are binding on the CA, provided they are supported by
substantial evidence.
NOTE: The court is not required, but may set the case for oral
arguments or require parties to submit memoranda.
When can there be oral arguments? (Rule 49, Sec. 1)
At its own instance or upon motion of a party, the court may hear
the parties in oral argument on the merits of a case, or on any
material incident in connection therewith.
NOTE: But the court will limit the matters subject of the oral
arguments. It is the same in the SC.
How many counsel is allowed to argue for a party? (Rule
49, Sec. 2)
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 matters shall be as
directed by the court.
Is there hearing on a motion? (Rule 49, Sec. 3)
Motions shall not be set for hearing and, unless the court
otherwise directs, no hearing or oral argument shall be allowed
in support thereof.
What is the period to file objections to the motion in the CA?
(Rule 49, Sec. 3)
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 submitted for resolution.
NOTE: The period to file an objection in the lower court is ten
(10) days from the service.
In certiorari, it does not stay the award. This also applies to
Rule 43. What is the relevance of this?
As a general rule, when you avail of ordinary appeal (Rules 40-
41) or pending Rule 42 appeals, the enforcement or execution
of the decision that you are appealing shall be stayed. Rules 40,
41, and 42 appeals would normally stay the enforcement or
execution of the decision.
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Is that rule absolute? 5. Goes beyond the issues of the case, and such findings
NO, it is subject to exception, such as when the decision is are contrary to the admissions of both appellant and
immediately executory, or the court allows execution pending appellee;
appeal. But as a general rule, the appeal would stay the 6. Contrary to the admissions of the parties;
execution. 7. CA fails to notice certain relevant facts which, if
properly considered, will justify a different conclusion;
In Rule 43, if you file a petition to assail the decision of a 8. Findings of fact are themselves conflicting;
quasi-judicial body, such filing will not stay the execution 9. There are conclusions of fact that have no basis in
of the decision assailed. So what is the remedy? evidence;
The CA may make orders it may deem just, or the party may 10. When the findings of fact of the CA are premised on
apply for injunctive relief to restrain the quasi-judicial body from the absence of evidence but such findings are
enforcing the decision. If you do not apply for an injunction or contradicted by the evidence on record;
restraining order, then nothing can stop the quasi-judicial body 11. Amparo;
from enforcing a decision that is already final and executory or 12. Habeas data;
immediately executory. 13. Kalikasan;
14. Continuing mandamus.
Under petition for relief from judgment (Rule 38), the period
within which to file this petition is sixty (60) days from notice of NOTE: The verified petition shall be filed within fifteen (15) days
the decision but not more than six (6) months from finality or from notice of the judgment, or of denial of the petitioner’s MNT
entry of said judgment. When we say from finality and entry, it or MR filed in due time after notice of judgment. Allowed
presupposes that the decision is already final and executory. extension: 30 days.
Thus, there is nothing left to do but to execute the decision as a
matter of right. Accordingly, the remedy is to file an injunction to What should be alleged?
restrain the enforcement of the decision. But the mere Same requirements as Rules 42 and 43 in relation to Rules 40
application is not enough; it must be granted by the court. and 41.

RULE 45 Do you need to implead the lower court or judge as

PETITION FOR REVIEW ON CERTIORARI respondent?
NO. The rules expressly state that you do not implead the lower
Rule 45 VERSUS Rule 65 court or judge as a respondent.
RULE 45 RULE 65
Appeal by certiorari because Original action, but last resort GROUNDS FOR OUTRIGHT DISMISSAL
this is a mode of appeal (only to raise jurisdictional What are the grounds for outright dismissal by the SC?
issues and provided there is • Failure to comply with requirements (Rule 45, Sec. 5)
no plain, speedy, adequate • Not filed on time (Rule 45, Sec. 5)
remedies in ordinary courts • No payment of appeal/docket fee (Rule 45, Sec. 5)
of law) • Patently without merit (Rule 45, Sec. 5)
Under ordinary rules Special civil action • Prosecuted manifestly for delay (Rule 45, Sec. 5)
Jurisdiction: SC only Jurisdiction: Concurrent (SC, • That the questions raised are too unsubstantial to
CA, RTC, SB)
require consideration (Rule 45, Sec. 5)
Only questions of law Issues of facts and law
• A review is not a matter of right, but of sound judicial
Correct errors of judgment Correct errors of jurisdiction
discretion, and will be granted only when thereare
special ad important reasons therefor.
NOTE: Finding of facts of CA and the lower courts are usually
conclusive upon the SC. The SC is not duty-bound to analyze
Review by the SC is discretionary. What matters are to be
and weigh the evidence in the lower courts.
considered in reviewing?
ERROR OF JUDGEMENT • Is it an important case, guidance to the bench and bar
What do you mean by error of judgment?
It is committed by the court in the exercise of jurisdiction, NOTE: Your pleading must be authorized by the SC.
procedure, or findings of fact. This is reviewable by appeal.
HARMLESS ERROR RULE
NOTE: Mistake in application of law: reviewable by appeal. What is the harmless error rule? (Rule 51, Sec. 6)
Appreciation of evidence: reviewable by appeal. In any stage of the proceedings, the court shall disregard any
error or defect that does not affect the substantial rights of the
GENERAL RULE: The SC will only review questions of law. It parties.
will not review questions of facts.
EXCEPTIONS: GROUNDS FOR DISMISSAL OF APPEAL BY THE SC
1. If the findings of fact of the RTC and the CA are • Not filed on time
different; • No docket fees
2. When the findings are grounded entirely on • No proof of service
speculation, surmises, or conjecture; • Failure to comply with contents/attachments
3. If the inference made by the CA on its findings are • Failure to comply with circular, directive of SC without
manifestly mistaken, absurd, or impossible; justifiable cause
4. Grave abuse of discretion in the appreciation of the
facts;
• Error in mode of appeal
• The fact case is not appealable to the SC
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NOTE: The rules provide that what is applicable to criminal and
civil cases are also applicable in Rule 45.

IN CRIMINAL PROCEDURE: If the case is originally filed in the

Sandiganbayan (Sandiganbayan exercises original jurisdiction)
and you will appeal it, the mode of appeal is not Rule 45! The
proper appeal is with the SC, but not Rule 45. You must file a
notice of appeal with SB first. (2018 RULES OF PROCEDURE
ISSUED BY THE SC FOR THE SANDIGANBAYAN)

SB decision in its appellate jurisdiction (criminal case) —

remedy: appeal to SC by Rule 45.

CA decision in its appellate jurisdiction (criminal case) —

remedy: appeal to SC by Rule 45.

CA decision in its appellate jurisdiction, but it involves automatic

review for cases with capital offense (punishable by reclusion
perpetua, death, and life imprisonment) — remedy: Rule 45,
Sec. 9.

NOTE: Because if it is a capital punishment/offense, the

Constitution provides that there must be an automatic review by
the SC. In the Mateo case, go to CA first before the SC. From
CA to SC, the mode of review is notice of appeal filed with the
CA before it is elevated to the SC
Why should it be with notice of appeal when it was already
appealed in the CA?
Rule 45 is an appeal that is discretionary, wherein the court has
the discretion not to review the case. And this should not be
applied in cases of capital offense because it is a Constitutional
mandate that review is automatic. Thus, the better mode of
appeal is notice of appeal. Because in this instance, the
appellate court has no choice. The records will be transmitted to
said court. Also, if notice of an appeal is perfected, the appeal
will proceed; the court will review the record of the case but in
Rule 45, the discretion is still with the SC whether to give due
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 RULE 40
APPEAL FROM MTC TO RTC
WHAT IS BEING First time appeal of MTC Judgements in its ORIGINAL JURISDICTION.
APPEALED:
WHERE DO YOU FILE RTC
CASES COVERED BY All cases where the MTC exercises original jurisdiction
THE APPEAL EXCEPT:
1. SMALL CLAIMS
2. SUMMARY PROCEDURE
WAYS FOR PERFECTING OF AN APPEAL
NOTICE OF APPEAL RECORD ON APPEAL
CONTENTS
Filing a notice of appeal with the court that rendered the judgement or • Full of names of the parties shall be stated in the
final order appealed from. caption
• Judgement or final order from which appeal is to be
• Indicate the Parties to the appeal taken
• Judgement of final order or part thereof appealed from
• State material dates showing timeliness of the appeal In chronological order:
• Copies of only such pleadings petitions, motions and
all interlocutory orders related to the appealed
judgement or final order for the proper understanding
of the issue
• Such data as will show that the appeal was perfected
in time.
IF AN ISSUE IN FACT IS TO BE RAISED ON APPEAL
• It shall include by reference all evidence, testimonial
and documentary, taken upon the issue involved
•
REFERENCE SHALL SPECIFY
• DOCUMENTARY EVIDENCE by the exhibit number or
letters by which it was identified when admitted or
offered at the hearing
• TESTIMONIAL EVIDENCE by the names of the
corresponding witnesses
• WHOLE TESTIMONIAL OR DOCUMENTARY
EVIDENCE: a statement to the effect that will be
sufficient without mentioning the names of the
witnesses or the numbers or letters of exhibits
EXCEEDING 20 PAGES: contain a subject index
PERIOD OF PERFECTING OF AN APPEAL
WITHIN 15 days AFTER notice to appellant of the judgement or order The appellant shall file a notice of appeal and a record on
appealed from. appeal WITHIN 30 days AFTER notice of judgement or final
order
PERFECTION OF AN APPEAL
Upon the filing of the notice of an appeal in due time It is deemed perfected as to him with respect to the subject
matter thereof upon the approval of the record on appeal in
due time.
EFFECT OF AN APPEAL
The court loses jurisdiction over the case upon the perfection of the The court loses jurisdiction over the subject matter
appeals filed in due time and expiration of the time appeal of the other thereof upon the approval of the records on appeal filed
parties in due time and expiration of the time appeal of the other
parties.
INTERRUPTION OF Upon the timely filing of an Motion for Reconsideration
APPEAL
EXTENDIBLE NO
WHAT MAY BE In either case, prior to the transmittal of the original record or the record on appeal, the court may
ISSUED BY THE issue:
COURT • 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 litigents
• Order execution pending appeal in accordance with Section 2 of Rule 39
Allow withdrawal of the appeal

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 PAYMENT OF DOCKET AND LAWFUL FEES
WHEN Within the period of taking an appeal – Within 15 days after notice to the appellant of the judgement or
ordered appealed from
WHO Pay the clerk of court of the court which rendered the judgement or final order appealed
WHAT The full amount of the appellate:
• Docket fees
• Other lawful fees
WHAT IS • Proof of the payment of the fees shall be transmitted to the APPELLATE COURT
TRANSMITTED • Original record or record on appeal, as the case may be
DUTY OF THE CLERK
WITHIN 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 shall certify as complete to the
proper regional trial Court. A copy of his letter of transmittal of the appellate court shall be furnished the parties.
PROCEDURE AFTER TRANSMITTAL
After transmittal, the Appellant must file the Appellant’s memorandum which shall assign all the error that the party will impute to the
lower court. ONLY THOSE ASSIGNED ERRORS IMPUTED ARE SUBJECT TO REVIEW

WITHIN 15 DAYS from receipt of the appellant’s memorandum, APPELLEE’S MEMORANDUM must be filed in answer to the
appellan’ts memorandum. T

FAILURE TO FILE APPELEE’S MEMORANDUM: the period to file an appeal will lapse and the case will be submitted for decision
PROCEDURE IN THE REGIONAL TRIAL COURT

PROCEDURE IN THE REGIONAL TRIAL COURT

Within 15 days from such notice, appellant

Upon receipt of the The Clerk of Court of must submit memorandum discussing the
record or record on the RTC shall notify the errors imputed to the lower court and furnish
appeal parties the same to the adverse party

FAILURE Within 15 days from receipt of appellant’s

Ground for dismissal of
TO FILE memorandum, the appellee may file his
the appeal
memorandum

FILING OR
EXPIRATION
OF THE
PERIOD

The case is considered submitted for decision.

The RTC shall decide the case based on the
entire record of the proceedings had in the
court of origin and special civil action under
Rule 65

WHEN DISMISSED
WITHOUT TRIAL WITH TRIAL
If an appeal is taken from an order of the lower court DISMISSING WITHOUT JURISDICTION OVER THE SUBJECT
the case without trial on the merits, the RTC may affirm or reverse it as MATTER:
the case may be.

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 If the case was tried on the merits by the lower court without
AFFIRMED: the ground of dismissal is lack of jurisdiction over the jurisdiction over the subject matter the RTC on appeal
subject matter SHALL NOT DISMISS the case if it has original
jurisdiction thereof, but shall decide the case in
IF RTC HAS JURISDICTION: accordance with the preceding section, without prejudice to
If it has jurisdiction thereover, it shall try the case on the merits as if the the admission of amended pleadings and additional
case was originally filed with it. evidence in the interest of justice.

REVERSAL: the case shall be remanded for further proceedings

RULE 41
APPEAL FROM THE REGIONAL TRIAL COURT
WHAT IS BEING First time appeal of RTC Judgements in its ORIGINAL JURISDICTION
APPEALED:
WHERE DO YOU FILE Court of Appeals
CASES COVERED BY All cases which the RTC has original jurisdiction
THE APPEAL
HOWEVER, SECTION 1 PROVIDES FOR CASES THAT CANNOT BE APPEALED
• An order denying a motion for new trial or reconsideration
• An order denying a petition for relief or any similar motion seeking relief from judgement
• An interlocutory order
• An order denying a motion to set aside a judgement by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other ground vitiating consent
• An order of execution
• A judgement or final order for or against one or more several parties or in separate claims,
counterclaims, cross claims, and third party complaints, while the main case is pending, unless the
court allows an appeal therefrom.
• An order dismissing an action without prejudice
MODES OF APPEAL
ORDINARY APPEAL PETITION FOR REVIEW APPEAL BY CERTIORARI
WHERE: Court of Appeals WHERE: Court of Appeals WHERE: Supreme Court

WHAT: Cases decided by the RTC in the WHAT: Cases decided by the RTC in the WHAT: In all cases where only question
exercise of its original jurisdiction exercise of its appellate jurisdiction shall of law are raised or involved, the appeal
be filed in accordance with RULE 42 shall be to the Supreme Court by petition
HOW: By filing a notice of appeal with the for review in accordance with RULE 45.
court which rendered the judgement or
final order aooealed from and serving copy
thereof to the adverse party.

RECORD ON APPEAL:
NOT REQUIRED except in special
proceedings and other cases of multiple or
separate appeals where the law or these
rules so require. In such cases recod on
appeal shall be filed and served in the
same manner
PERIOD TO FILE
ORDINARY APPEAL RECORD ON APPEAL APPEAL ON HABEAS CORPUS
Within 15 days from notice of judgement WITHIN 30 days file a notice of appeal and WITHIN 48 HOURS from notice of the
or final order appealed from a record on appeal from notice of the judgement or final order appealed from.
judgement or final order
WHEN INTERRUPTED
Timely motion for new trial or reconsideration.
(No motion for extension of time to file a motion for new trial or reconsideration shall be allowed)
PAYMENT OF DOCKET AND LAWFUL FEES
WHEN Within the period of taking an appeal
WHO Pay the clerk of court of the court which rendered the judgement or final order appealed from
WHAT The full amount of the appellate court:
• Docket fees
• Other lawful fees
WHAT IS • Proof of the payment of the fees shall be transmitted to the APPELLATE COURT
TRANSMITTED • Original record or record on appeal, as the case may be
CONTENTS
NOTICE OF APPEAL RECORD ON APPEAL

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Filing a notice of appeal with the court that rendered the • Full of names of the parties shall be stated in the caption
judgement or final order appealed from. • Judgement or final order from which appeal is to be taken

• Indicate the Parties to the appeal In chronological order:

• Judgement of final order or part thereof appealed from
• State material dates showing timeliness of the appeal
• Copies of only such pleadings petitions, motions and all
interlocutory orders related to the appealed judgement or final
order for the proper understanding of the issue
• Such data as will show that the appeal was perfected in time.
IF AN ISSUE IN FACT IS TO BE RAISED ON APPEAL
• It shall include by reference all evidence, testimonial and
documentary, taken upon the issue involved
•
REFERENCE SHALL SPECIFY
• DOCUMENTARY EVIDENCE by the exhibit number or
letters by which it was identified when admitted or offered at
the hearing
• TESTIMONIAL EVIDENCE by the names of the
corresponding witnesses
• WHOLE TESTIMONIAL OR DOCUMENTARY EVIDENCE:
a statement to the effect that will be sufficient without
mentioning the names of the witnesses or the numbers or
letters of exhibits
EXCEEDING 20 PAGES: contain a subject index

PERFECTION OF AN APPEAL
Upon the filing of the notice of an appeal in due time It is deemed perfected as to him with respect to the subject matter
thereof upon the approval of the record on appeal in due time.
EFFECT OF AN APPEAL
The court loses jurisdiction over the case upon the perfection The court loses jurisdiction over the subject matter thereof
of the appeals filed in due time and expiration of the time appeal upon the approval of the records on appeal filed in due time
of the other parties and expiration of the time 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 litigents
• Order execution pending appeal in accordance with Section 2 of Rule 39
• Allow withdrawal of the appeal
FILING OF APPROVAL
Upon the filing for APPROVAL

NO OBJECTION BY THE APPELLEE WITHIN 5 DAYS from

receipt of a copy thereof, the trial may
• APPROVE it as presented
• ON ITS OWN MOTION OR AT THE INSYANCE OF THE
APPELLEE: direct its amendment by the inclusion of
any omitted matters which are deemed essential to the
determination of the issue of law or fact involved in the
appeal.

ORDERS AMENDMENT OF THE RECORD

The appellant within the time limited in the order, or such
extension as may be granted or if no time is fixed by the order
within 10 days from receipt thereof shall redraft the record by
including therein:
• Proper chronological sequence such additional matters
as the court may have directed him to incorporation
• Shall thereupon submit the redrafted record for approval,
upon notice to the appellee in like manner the original
draft
DUTY OF THE CLERK
WITHIN 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 the
correctness
b. To verify the completeness of the records that will be transmitted to the appellate court
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 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 his purpose
d. Transmit the records to the appellate court

IF THE EFFORTS TO COMPLETE THE RECORDS FAIL, he shall indicate in his letter of transmittal
• the exhibits or trancripts not induced in the records being transmitted to the appellate court,
• the reasons for their non-transmittal,
• the steps taken or that could be taken to have them available

The Clerk of Court shall furnish the parties with the copies of his letter o transmittal of records to the appellate court.
TRANSCRIPT
WHEN Upon the perfection of the appeal
HOW The Clerk of Court shall immediately direct the stenographers concerned to attach the record of the case
five copies of the transcripts of the testimonial evidence referred to in the record of the appeal.
WHAT IS The stenographers shall transcribe such testimonial evidence and shall prepare and affix their transcripts
TRNASCRIBED in an index containing:
• Names of the witnesses
• Pages wherein the testimonies of the witnesses are found
• List of exhibits and the pages wherein each of them appears to have been offered and admitted
or rejected by the trial court
WHERE IT IS The transcripts shall be transmitted to the clerk of the trial court who shall thereupon arrange the same
TRANSMITTED in the order in which the witness testified at the trial, and shall cause the pages to be numbered
consecutively
TRANSMITTAL
TO WHOM The appellate court
WHAT the approved record on appeal
WHEN WITHIN 30 DAYS FROM PERFECTION OF THE APPEAL
ATTACHED • Proof of payment of the appellate court docket and lawful fees
• A certified copy of the minutes of the proceedings
• The order of approval
• The certificate of correctness
• The original documentary evidence referred to therein
• The original and 3 copies of the trancrips

Copies of the transcripts and certified true copy of the documentary evidence shall remain with
the lower court for the examination of the parties
PROCEDURE AFTER TRANSMITTAL
INCOMPLETE If it is incomplete, the clerk of court must make known in the transmittal that it is not complete. Does it
RECORDS really happen? Yes, because sometimes the transcript of stenographic notes (records of the proceeding)
TRANSMITTED are not completed on time. Sometimes they get destroyed. You have to allege when the records are not
complete

REMEDY: The clerk of court will make a recommendation to the court to complete the records.

How will the court complete the records?

It depends. If what is missing are the transcripts, the court will direct it from the court of origin. If there is
lack of copy of certain exhibits, the court can require any of the parties to produce the certified true copies.

NOTE: On a record on appeal and then you are required to amend. And after you transmit it, you make
unauthorized changes: that is a ground for dismissal.

NOT TRANSMITTED Either party may, upon motion and notice to the other party, ask (the trial court) that the record on appeal
be transmitted. Once it is transmitted, the CA will now have jurisdiction.
RECORDS The CA can, on motion or motu proprio, dispense with the requirement of complete records. If the completion
DISPENSED WITH cannot be accomplished within a sufficient period due to extreme, insuperable or difficult cases.
APPELLANT APPELLEE
WHAT SHOULD BE Appellant’s Brief Appellee’s Brief
FILED
PERIOD TO FILE Within 45 days from receipt of notice from the clerk Withing 45 days from receipt of Appellants brief
that all the evidence, oral and documentary, are
attached to the record
EXTENDIBLE NO NO
CONTENTS The appellant’s brief shall contain, in the order The appellee’s brief shall contain, in the order herein
herein indicated, the following: indicated, the following:

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i) A subject index of the matter in the brief d) A subject index of the matter in the brief
with a digest of the arguments and page with a digest of the arguments and page
references, and a table of cases references, and a table of cases
alphabetically arranged, textbooks and alphabetically arranged, textbooks, and
statutes cited with references to the pages statutes cited with references to the pages
where they are cited; where they are cited;
j) An assignment of errors intended to be e) Under the heading “Statement of Facts,”
urged, which errors shall be separately, the appellee shall state that he accepts the
distinctly and concisely stated without statement of facts in the appellant’s brief,
repetition and numbered consecutively; or under the heading “Counter-Statement
k) Under the heading “Statement of the of Facts,” he shall point out such
Case,” a clear and concise statement of the insufficiences or inaccuracies as he
nature of the action, a summary of the believes exist in the appellant’s statement
proceedings, the appealed rulings and of facts with references to the pages of the
orders of the court, the nature of the record in support thereof, but without
judgment and any other matters necessary repetition of matters in the appellant’s
to an understanding of the nature of the statement of facts; and
controversy, with page references to the f) Under the heading “Argument,” the
record; appellee shall set forth his arguments in the
l) Under the heading “Statement of Facts,” a case on each assignment of error with
clear and concise statement in a narrative page references to the record. The
form of the facts admitted by both parties authorities relied on shall be cited by page
and of those in controversy, together with of the report at which the case begins and
the substance of the proof relating thereto the page of the report on which the citation
in sufficient detail to make it clearly is found.
intelligible, with page references to the
record; REPLY BRIEF
m) A clear and concise statement of the issues After the appellee’s brief is filed, the appellant has
of fact or law to be submitted to the court twenty (20) days from notice of the appellee’s brief
for its judgments; within which to file a reply brief.
n) Under the heading “Argument,” the
appellant’s arguments on each assignment The court then resolves the case based on the
of error with page references to the record. records of the case. It may, but it is not mandated to,
The authorities relied upon sall be cited by ask the parties to file their memorandum. This is not
the page of the report at which the case to be confused with memorandum filed in lieu of
begins and the page of the report on which appellant’s brief that is filed in petitions for certiorari,
the citation is found; prohibition, mandamus, quo warranto, or habeas
o) Under the heading “Relief,” a specification corpus.
of the order or judgment which the
appellant seeks; and
p) 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.
PROCEDURE IN COURT OF APPEALS

Within 15 days from notice of the judgement or final order

appealed from, appellant shall file a notice of appeal or
record of appeal as the case may be

PERFECTION OF APPEAL:
• Timely filing of notice of appeal
• Payment of proper fees

WITHIN 30 DAYS from perfection of appeal, the clerk

shall transmit to the appellate court the original record
or approved record of the appeal and other documents.

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 INCOMPLETE The transcript shall be transmitted to the clerk of the trial NOT
RECORDSS court TRAMSMITTED

The Clerk of Court If not transmitted

RECORDS
shall make it known within 30 days from
RECEVIED
in the transmittal that perfection, Either
it is incomplete party may, upon
motion and notice to
the other party, ask
(the trial court) that
the record on appeal
Docketing of the case. be transmitted.

WITHIN 45 DAYS, from receipt of notice from the clerk

that all the evidence, oral and documentary, are attached
to the record, FILE APPELLANT’S BRIEF

WITHIN 45 DAYS From receipt of appellant’s brief, file

APPELLEE’S BRIEF

WITHIN 20 DAYS From notice of the appellee’s brief, the

appellant must file a REPLY BRIEF

The court then resolves the case based on the records of

the case. It may, but it is not mandated to, ask the parties
to file their memorandum

DISMISSAL
PRIOR TO THE TRANSMITTAL OF THE ORIGINAL RECORD OR RECORD ON APPEAL
The trial court may motu prorio or on motion DISMISS THE APPEAL for having been taken out of time or for non-payment of
the docket fees and other lawful fees within the reglementary period

GROUNDS FOR DISMISSAL

The following are grounds for dismissal of appeals in the CA:
• Failure, on its face, of notice of appeal/record on appeal to show the timely filing of the appeal by the appellant;
• Failure to pay docket fees by the appellant;
• Unauthorized alteration, omissions, or additions in approved record on appeal by the appellant;
• Failure to serve and file number of copies of brief/memorandum within the time to do so by the appellant;
• Absence of specific assignment of errors or page references to the record in the appellant’s brief;
• Failure of appellant to take necessary steps for correction/completion of record within the time provided by the court;
• Failure of appellant to appear at the preliminary conference;
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 • If appeal under Rule 41 is based purely on questions of law;
• If there are orders, circulars, or directives by the CA and appellant fails to comply;
• If you have an improper mode of appeal.

RULE 42
PETITION FOR REVIEW FROM THE RTC TO THE CA, MTC TO RTC TO CA

WHAT IS BEING RTC Decisions rendered in its Appellate Jurisdiction

APPEALED:
WHERE DO YOU FILE Court of Appeals
WHAT MUST BE FILED VERIFIED PETITION FOR REVIEW
WHEN Within 15 days from notice decision sought to be reviewed or of the denial of petitioner’s MNT or MR
EXTENDIBLE YES an additional 15 days may be given

FOR THE MOST COMPELLING REASON: Another 15 days may be added

TOTAL: the maximum is an extension of 30 days (15 days for addition, then if there is compelling reason
another 15 days)
PAYMENT OF FEES • The docket and other lawful fees
• Deposit the amount of P500 for costs
FURNISHED TO WHOM The RTC and the adverse party must be furnished with a copy of the petition
HOW MANY COPIES Follow Efficient Paper Rule: 1 original (properly marked) + 2 copies with annexes.
CONTENTS • State the full names of the parties to the case, without impleading the lower courts or judges thereof
either as petitioners or respondents;
• Indicate the specific material dates showing that it was filed on time
• 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 RTC
• Reasons or arguments relied upon for the allowance of the appeal
• Clearly legible duplicate originals or true copies of the judgements or final orders of both lower courts,
certified by the cler
• A certification of Forum shopping
FAILURE TO COMPLY Ground for dismissal
WITH REQUIREMENTS
PERFECTION OF APPEAL
WHEN PERFECTED Timely filing of the petition for review and payment of docket and other lawful fees.
EFFECT OF PERFECTION The Regional Trial Court loses jurisdiction over the case

HOWEVER, before the Court of Appeals gives due course to the petition, the RTC 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, Rule 39 and allow withdrawal of the appeal
STAY THE JUDGEMENT Except in civil cases under Summary Procedure, the appeal SHALL STAY the judgement or final order
unless the CA, the law, or the Rules provide otherwise.
ACTION ON THE PETITION
WHAT IS FILED A comment
WHEN FILED Within 10 days from notice or dismiss
GROUNDS If it finds the petition to be:
• Patently without merit,
• Prosecuted manifestly for delay
• Questions raised therein are too unsubstantial to require consideration
CONTENTS • State whether or not he accepts the statement of matters involved in the petition
• Point out such insufficiencies or inaccuracies as he believes exist in petitioner’s statement of matters
involved but without repetition
• State the reasons why the petition should not be given due course.
PROCEDURE IN RULE 42

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 WITHIN 15 DAYS from notice of the decision sought to
be reviewed or the denial of the MNT or MR FILE A EXTENDED
PETITION FOR REVIEW WITH THE CA

• Payment of docket and other lawful fees An additional 15 days.

• Deposit an amount of P500 for costs
MOST COMPELLING
REASON: further
addition of 15 days

Furnish copy with the RTC and the adverse party of the
petition.

PATENTLY
WITHOUT
PERFECTION OF THE APPEAL MERIT, ETC

FILE A COMMENT If it finds that

THE CA MAY DISMISS the petition is patently without merit,
OUTRIGHT OR MOTU EFFECT OF PERFECTION
prosecuted manifestly for delay, or
PROPRIO
that the questions raised are too
unsubstantial

If upon the filing of the comment or

GIVEN DUE such other pleadings as the court
COURSE may allow or require, or after the
expiration of the period for the filing
thereof without such comment or
pleading, CA finds prima facie that
the lower court committed error of
fact or law that will warrant reversal
or modification of the appealed
decision
WITHIN 15 DAYS from notice, the CA may set the case
for oral argument or require the parties to submit a
memoranda

FILING OF LAST
PLEADING OR
MEMORANDA

CASE IS SUBMITTED FOR DECISION

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 GROUNDS FOR DISMISSAL
• If you do not comply with the formal requirement (Rule 42, Sec. 3)
• If you do not pay filing and docket fees on time (Rule 42, Sec. 3)
• Patently without merit (Rule 42, Sec. 4)
• Prosecuted manifestly for delay (Rule 42, Sec. 4)
• Questions raised are too unsubstantial to require consideration (Rule 42, Sec. 4)

RULE 43
APPEALS FROM THE COURT OF TAX APPEALS AND QUASI JUDICIAL AGENCITES TO THE COURT OF APPEALS
WHAT IS BEING Judgements or final orders of the CTA
APPEALED: Awards, judgements, final orders or resolution or authorized by quasi-judicial agency in the exercise of its
quasi-judicial functions.
AGENCIES INCLUDED • Civil Service Commission
• Central Board of Assessment Appeals
• Securities and Exchange Commission
• Office of the President
• Land Registration Authority
• Social Security Commission
• Civil Aeronautics Board
• Bureau of Patents
• Trademarks and Technology Transfer
• National Electrification and Administration
• Energy Regulatory Board
• National Telecommunications Commission
• Department of Agrarian Reform under RA 6657
• Government Service Insurance System
• Employees Compensation Commission
• Agricultural Inventions Board
• Insurance Commission
• Philippine Atomic Energy Commission
• Board of Investments
• Construction Industry Arbitration Commission
• Voluntary arbitrators authorized by law
WHERE DO YOU FILE Court of Appeals
WHAT MUST BE FILED VERIFIED PETITION
WHEN Within 15 days from notice of award, judgement, final order or resolution, or from the date of its last
publication, if publication is required by law for its effectivity, or the denial of the MNT or MR filed in
accordance with the governing law of the court or agency.
MOTION FOR Only 1 motion for reconsideration may be filed.
RECONSIDERATION
EXTENDIBLE YES an additional 15 days may be given

FOR THE MOST COMPELLING REASON: Another 15 days may be added

TOTAL: the maximum is an extension of 30 days (15 days for addition, then if there is compelling reason
another 15 days)
PAYMENT OF FEES • The docket and other lawful fees
• Deposit the amount of P500 for costs

EXEMPTION FROM FEES: upon verified motion setting forth valid grounds thereof.
CONTENTS • State the full names of the parties to the case, without impleading the court or agencies either as
petitioners or respondents;
• Set forth concisely a statement of the matters involved and grounds relied upon for the review
• Be accompanied by a clearly legible duplicate original or a certified true copy of the award, judgement,
final order or resolution appealed from
• Certified true copies of each material portions of the record referred to therein and other supporting
papers
• Contain a sworn certification against forum shopping
FAILURE TO COMPLY Ground for dismissal
WITH REQUIREMENTS
EFFECT OF THE It shall not stay the award, judgement, final order or resolution sought to be reviewed unless the CA shall
APPEAL direct otherwise upon such term as may be deem just.

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 ACTION ON THE PETITION
WHAT IS FILED A comment
WHEN FILED Within 10 days from notice or dismiss the ptition
GROUNDS If it finds the petition to be:
• Patently without merit,
• Prosecuted manifestly for delay
• Questions raised therein are too unsubstantial to require consideration
CONTENTS • Point out insufficiencies or inaccuracis in petitioner’s statement of facts and issues
• State the reasons why the petition should be denied or dismissed

PROCEDURE IN RULE 43

WITHIN 15 DAYS from notice of the decision sought to

be reviewed or the denial of the MNT or MR FILE A EXTENDED
PETITION FOR REVIEW WITH THE CA

FILE A MOTION FOR • Payment of docket and other lawful fees An additional 15 days.
EXEMPTION OF FEES • Deposit an amount of P500 for costs MOST COMPELLING REASON:
further addition of 15 days

FAILURE:
SUBMISSION OF ALL THE REQUIREMENTS DISMISSAL OF
GRANTED DENIED
THE CASE

EXEMPT PAY THE PATENTLY

FROM FEES FEES WITHIN PERFECTION OF THE APPEAL WITHOUT
15 DAYS MERIT, ETC
FROM
NOTICE OF
DENIAL

WITHIN 10 DAYS FILE A

EFFECT OF PERFECTION COMMENT If it finds that the
petition is patently without merit,
prosecuted manifestly for delay, or
that the questions raised are too
unsubstantial

GIVEN DUE If upon the filing of the comment or

COURSE
WITHIN 15 DAYS from notice,
• Transmit the entire record of the proceeding under
review
• the CA may set the case for oral argument or
require the parties to submit a memoranda
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, CA finds prima facie that
the lower court committed error of
fact or law that will warrant reversal
or modification of the appealed
decision

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 FILING OF LAST
PLEADING OR
MEMORANDA

CASE IS SUBMITTED FOR DECISION

GROUNDS FOR OUTRIGHT DISMISSAL

• Failure to comply with requirements (Rule 43, Sec. 7)
• Not filed on time (Rule 43, Sec. 7 in relation to Sec. 6)
• No payment of appeal/docket fee (Rule 43, Sec. 7)
• Patently without merit (Rule 43, Sec. 8)
• Prosecuted manifestly for delay (Rule 43, Sec. 8)
• That the questions raised are too unsubstantial to require consideration (Rule 43, Sec. 8)
• Does not find prima facie that the court or agency has committed errors of facts or law that warrant modification of the award or
judgment

RULE 45
PETITION FOR REVIEW ON CERTIORARI
WHAT IS BEING From a judgement of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts
APPEALED: authorized by law
NATURE OF THE Only reviews QUESTION OF LAW
APPEAL
EXCEPTIONS:
15. If the findings of fact of the RTC and the CA are different;
16. When the findings are grounded entirely on speculation, surmises, or conjecture;
17. If the inference made by the CA on its findings are manifestly mistaken, absurd, or impossible;
18. Grave abuse of discretion in the appreciation of the facts;
19. Goes beyond the issues of the case, and such findings are contrary to the admissions of both
appellant and appellee;
20. Contrary to the admissions of the parties;
21. CA fails to notice certain relevant facts which, if properly considered, will justify a different
conclusion;
22. Findings of fact are themselves conflicting;
23. There are conclusions of fact that have no basis in evidence;
24. When the findings of fact of the CA are premised on the absence of evidence but such findings
are contradicted by the evidence on record;
25. Amparo;
26. Habeas data;
27. Kalikasan;
28. Continuing mandamus.

WHERE DO YOU FILE Supreme Court

WHAT MUST BE FILED Verified Petition for Review on Certiorari
WHEN Within 15 days from notice of the judgement or final order or resolution appealed from, or the denial of the
MNT or MR
EXTENDIBLE For JUSTIFIABLE REASONS grant 30 days only on DISCRETION OF THE COURT
PAYMENT OF FEES • The docket and other lawful fees
• Deposit the amount of P500 for costs
HOW MANY COPIES 1 original (properly marked) + 4 copies, unless the case is referred to the SC En Banc, whereby the parties
shall file 10 additional copies.
CONTENTS • 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
• Indicate the material dates showing when notice of the judgement or final order or resolution subject
thereof was received, when a MNT or MR, if any, was filed and when notice of the denial thereof was
received;
• Set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the
allowance of the petition

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 • Be accompanied by a clearly legible duplicate original, or a certified true copy of the judgement or final
order or resolution certified by the clerk of court a quo and the requisite number of plain copies thereof,
and such material portions of the record as would support the petition
• Contain a sworn certification against forum shopping
FAILURE TO COMPLY Ground for dismissal
WITH REQUIREMENTS
WHEN PERFECTED Timely filing of the petition for review and payment of docket and other lawful fees.
GROUNDS FOR • Not filed on time
OUTRIGHT DISMISSAL • No docket fees
• No proof of service
• Failure to comply with contents/attachments
• Failure to comply with circular, directive of SC without justifiable cause
• Error in mode of appeal
• The fact case is not appealable to the SC
CONSIDERATIONS FOR • When the court a quo has decided a question of substance, not theretofore determined by the Supreme
REVIEW Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the
Supreme Court
• When the court a quo has so far departed from the accepted and usual course of judicial proceedings,
or so far sanctioned such departure by a lower court, as to call for an exercise of the power of
supervision

PROCEDURE IN RULE 45

WITHIN 15 DAYS from notice of the judgement or final

order or resolution appealed from, or of the denial of the EXTENDED
petitioner’s MNT or MR file VERIFIED PETITION FOR
CERTIORARI

• Payment of docket and other lawful fees 30 DAYS ONLY FOR

• Deposit an amount of P500 for costs JUSTIFIABLE REASONS

DENY PETITION: ON ITS

OWN INITIATIVE FAILURE TO
• Without merit SUBMIT:
SUBMISSION OF ALL THE REQUIREMENTS
• Manifest delay DISMISS THE
• Questions are too CASE
unsubstantial

Supreme Court may require or allow the filling of such

pleadings, briefs, memoranda or documents as it may
deem necessary within such periods and under such
conditions as it may consider appropriate, and impose
the corresponding sanctions in case of non-filing or
unauthorized filing of such pleadings and documents or
non-compliance with the conditions thereof

GIVEN DUE
COURSE

WITHIN 15 DAYS, it may require elevation of the

complete record of the case or specified thereof

CASE IS SUBMITTED FOR DECISION

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PROVISIONAL REMEDIES
These are remedies to which the parties may resort to for the
preservation or protection of their rights or interest, during the
pendency of the litigation.
RULE 57
PRELIMINARY ATTACHMENT
PRELIMINARY ATTACHMENT
It is a provisional remedy, auxiliary or incidental to the main
action, where the property of the adverse party is taken into the
custody of the court as security for the satisfaction of any
judgement that may be recovered.
What is the reason why you want a preliminary attachment?
So that the property attached may be used as a security in order
for the judgement to be satisfied.
What is the other reason?
To have jurisdiction over the res.
This is your way of converting an action in personam where the
defendant, a non-resident not located in the Philippines. Since
he cannot be served the summons then you need to convert the
action in personam to in rem by means of preliminary
attachment.
Does that rule apply when the defendant is a resident but is
temporarily outside of the Philippines?
The Supreme Court said that we do not. The remedy instead is
to avail of substituted service of summons.
Because you can still avail a substituted summons by serving at
his residence. You only use that when he is a non-resident
outside of the Philippines. But nevertheless, you need to serve
summons to acquire jurisdiction over the res but to comply
with the dictate of due process.
GROUNDS FOR ISSUANCE OF A PRELIMINARY
ATTACHMENT
(a) In an action for the recovery of a specified amount of money
or damages, other than moral and exemplary, on a cause
of action arising from law, contract, quasi-contract, delict or
quasi-delict against a party who is about to depart from the
Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a
public officer, factor, broker, agent or clerk, in the course of
the employment as such, or by any other person in a
fiduciary capacity, or for a willful violation of duty
(c) In an action to recover possession of property unjustly or
fraudulently taken, detained or converted, when the
property or any part thereof, has been concealed, removed
or disposed of to prevent its being found or taken by the
applicant or an authorized person;
(d) In an action against a party who has been guilty of a fraud
in contracting the debt or incurring the obligation upon
which the action is brought, or in the performance thereof;
(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
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(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.
NOTE: In paragraph (b), if the position is all the way until before
other person in fiduciary capacity, in your affidavit that is
accompanying your application for attachment, you do not need
to establish the fiduciary capacity. Because in all of those
positions, it presupposes that there is trust and fiduciary
relationship.
If, however, it is other person in a fiduciary capacity, you need
to allege how there is a fiduciary capacity in the affidavit.
What should accompany your application for attachment?
• Affidavit
• Bond for the attachment
CONTENTS OF THE AFFIDAVIT
• A sufficient cause of action exists
• That the case is one of those mentioned in Section 1
• That there is no other sufficient security for the claim sought
to be enforced by the action
• That amount due to the applicant, or the value of the
property the possession of which he is entitled to recover,
is as much as the sum for which the order is granted above
all legal counterclaims.
Can we apply for ex-parte application for attachment?
YES
Wouldn’t the application for ex-parte be a violation of the
right to due process?
None of the requirements provide that you need to give notice
before you are able to obtain an attachment or your writ.
If the court grants your application for a writ of attachment, is the
order granting it the same as the writ of attachment?
NO. It is different.
When you allege the acts constituting the grounds in your
affidavit. You cannot copy paste the grounds because that will
only be mere conclusions of law. You need to allege the acts
constituting the grounds. Otherwise, your application will be
denied.
Once the writ is issued, what will happen next? Can it
already be enforced?
• Notice and hearing to the adverse party
• Service of summons
• Copy of the complaint
• The application of the attachment
• The applicant’s affidavit and bond
• Order of the writ of attachment
What is the reason why we need to serve a summon before
we enforce the attachment?
It is to acquire jurisdiction over the person of the defendant. So
that the defendant will be bound by the court’s orders.
Is it possible for you to enforce and then serve the
summons and then correct it later on with a second
attachment?
NO. it cannot be rectified, it should be that the summons be
served before the attachment otherwise it will be an invalid
implementation.
114
If you are serving the summons together with the
application, isn’t that going to render nugatory the
attachment?
NO. The Court said that when you enforce it, you will serve the
summons. The reason why you need to serve it is because of
due process. So that the other party is given the opportunity
against the attachment.
What is the purpose of the bond in the attachment?
The bond is in the amount fixed by the court in its order granting
the issuance of the writ, conditioned that the latter will pay all the
costs which may be adjudged to the adverse party and all the
damages which he may sustain by reason of the attachment, if
the court shall finally adjudge that the applicant was not entitled
thereto. (SECTION 4)
The bond is conditioned on the fact that if it is later found, there
should not have been an attachment or if judgement is rendered
against the party.
The bond is answer for damages to the defendant.
The plaintiff attached to satisfy judgement for the plaintiff.
In the judgement it was found that there was no cause of
action. So it means that the attachment is not proper to
begin with because the plaintiff did not win. Judgement was
rendered in favor of the defendant, until when can the
defendant claim damages against the bond?
Before the judgement becomes final and executory. Before the
trial or before the appeal is perfected or before the judgement
becomes executory.
How should he claim it?
In the answer, he can already claim that if the case is dismissed
“this is the damage I’m praying for”. He can claim it during the
case. He can do it as long as the judgement does not become
final and executory.
Once the judgement becomes final and executory, it becomes
immutable. Even if you have damages you cannot ask for it
because of the principle of res judicata. You cannot file a
separate action to claim for it begin because of the rule against
splitting of action and res judicata. It will be considered as a
waiver of the right.
MANNER OF ATTACHING THE PROPERTY
The sheriff enforcing the writ shall attach 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 or counter bond executed by the applicant in an amount
equal to the bond fixed by the court in the order of the
attachment or the value of the property to be attached.
The writ issued shall be 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
HOW ARE WE GOING TO LEVY?
(a) REAL PROPERTY or growing crops thereon, or any
interest therein, standing upon the record of 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
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standing on the records of the registry of deeds in the name
of any other person, by filing with the register 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.
(b) PERSONAL PROPERTY CAPABLE OF MANUAL
DELIVERY by taking and safely keeping it in his custody,
after issuing he corresponding receipt therefor,
(c) STOCKS, SAHRES, OR AN INTEREST IN STOCKS OR
SHARES, OF ANY CORPORATION OR COMPANY by
leaving with the president or managing agent thereof, a
copy of the writ, and a notice stating that the stock or
interest of the party against whom the attachment is issued
is attached in pursuance of such writ
(d) DEBTS AND CREDITS, including bank deposits, financial
interest, royalties, commissions and other personal
property not 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 whom attachment is
issued, and the credits and other personal property in his
possession, or under his control, belonging to said party,
are attached in pursuance of such writ
(e) The interest of the party against whom such 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 clerk of the court in which said estate is being settled
served upon the heir, legatee, or devise concerned.
(f) 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.
For the garnishee to be bound by the court’s order, do we
need to serve summons?
NO. By serving the notice the garnishee is already bound
thereby.
Are the exceptions from execution the same property
exempted from attachment?
YES
Once the sheriff is able to attached the property should he
release it to the plaintiff?
NO. The property attached remains under the custody of the
law.
What if the property attached is perishable, will it remain
under the custody of the law?
NO. When the property attached is perishable, or that the
interest of all the parties to the action will be subserved by the
sale thereof, the court may order such property to be sold at the
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public action in such manner as may direct and the proceeds of
such sale to be deposited in court to abide the judgement in the
action.
It is as if the proceeds or the cash is in place of the property
attached.
The property value that is perishable is P500,000. But at the
auction where it is sold, it was sold on P100,000. Later on
judgement was rendered against the plaintiff, in favor of the
defendant. The defendant seeks to claim the P400,000
attached the bond. Can that be allowed?
The Supreme Court ruled that this one only contemplates
damage and not the loss suffered in connection with the sale of
perishable property. It has to be damage.
Let us say the defendant won the case and the court
adjudged the plaintiff to be liable for damages in favor of
the defendant directing the plaintiff to pay the defendant
and not to take it as against the bond. Is this valid?
NO. The Supreme Court said that if there is a damage, you
cannot claim it to the plaintiff. You must claim it against the bond
because the bond is conditioned on the damage of the
defendant.
So you do not make the plaintiff pay directly, but you get it
directly from the bond.
DISCHARGE AN ATTACHMENT
The movant makes a cash deposit or files a counter-bond
executed to the attaching party with the clerk of court where the
application is made in an amount equal to that fixed by the court
in the order of attachment, exclusive of costs. If it is with respect
to a particular property, the counter-bond shall be equal to the
value of the property as determined by the court.
NOTE: this is the fastest way to have it discharged you either
make a cash deposit or file a counter bond.
What is the purpose of the case deposit and the counter
bond?
The cash deposit or counter bond shall secure the payment of
any judgement that the attaching party may recover in the
action.
NOTE: In all of the rules, the bond has the same rules.
The bond of the applicant for the damage of the adverse party.
The counter- bond of the adverse party is for the damage of the
applicant.
In all provisional remedies, you should apply for your damage
before the judgement becomes final and executory against the
bond.
OTHER GROUNDS TO DISCHARGE
• File a motion 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, it shall be limited to the excess.
• Properties EXEMPT FROM ATTACHMENT
• Judgement is rendered against the plaintiff
You filed for a counter-bond so that your property will not
be attached. Afterwards, you also moved for the dissolution
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of the writ of attachment on the ground that it was
improperly issued because it is alleged that you are
engaged in fraudulent acts. Your ground is that you are not
fraudulent. Is this allowed?
The bond was already discharged. When you file the counter-
bond the writ of attachment was already discharged. So you do
not need to file another ground for dissolving your writ of
attachment because it was already dissolved. Once it is already
dissolved, there is nothing left to be dissolved so you do cannot
raise any other ground.
When does the discharge take effect when it is respect to
the counter-bond?
After due notice and hearing conducted by the court.
For instance, Villena borrowed money from Suarez. In order
for Suarez to enter into the loan, Villena induced Suarez by
saying that he will paid by presentment of the post-dated
check. So Suarez believed Villena, but when it was
presented for payment it was dishonored. Suarez filed a
criminal case against her but likewise filed an independent
civil action under Article 33 of the Civil Code for damages
on the ground of fraud. Together with that, Suarez was able
to file for a preliminary attachment. Villena opposes the
attachment, she seeks to dissolve the attachment on the
ground that she did not commit fraud. Can the court rule on
that ground for dissolution?
It is a ground but the Court will not rule on it. Because while it is
a ground, it is also the main action. The ruling on that
attachment will prejudged the case before trial. Because your
case and the ground for attachment is exactly the same.
You need to be careful that just because it is fraud the court will
not rule upon the dissolution. IT DEPENDS ON THE MAIN
ACTION.
You need to look at whether that is exactly the main case. If a
ruling on the attachment would also amount to a ruling on the
main case that will be a prejudgment which is not allowed.
RULE 58
PRELIMINARY INJUNCTION
PRELIMINARY INJUNCTION
It is an order requiring a party or a court, agency or a person to
refrain from a particular act or acts.
PRELIMINARY MANDATORY INJUNCTION
It is an order that requires the performance of a particular act or
acts.
NOTE: A preliminary injunction can also be a main action. You
can have an action for injunction with a prayer for a provisional
remedy of a preliminary mandatory injunction.
All the provisional remedies must be construed strictly against
the applicant. Because in provisional remedies you are seeking
to affect the rights of the defendant even before there is a final
determination of the case.
For example, in attachment of a property, you are attaching the
property even before the court makes a judgement to the case
so it affects the rights of a person. It humiliates and it annoys.
So because of these reasons the grounds for issuance of
provisional remedies must be strictly construed, it is limited to
the grounds provided for in the rules. You cannot have
grounds other than those under the Rules.
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Particularly in Injunction, it is an extraordinary event. It is a
strong arm of equity or a transcendental remedy. So it should be
exercised with utmost case and deliberation.
GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION
(a) That the applicant is entitled to the relief demanded, and the
whole or part of such relief consists in restraining the
commission or continuance of the act or acts complained
of, or in requiring performance of an act or acts, either for a
limited period or perpetually;
(b) That the commission, continuance or non-performance of
the act or acts complained of during the litigation would
probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is procuring or
suffering to be done, some act or acts probably in violation
of the rights of the applicant respecting the subject of the
action or proceeding, and tending to render the judgement
ineffectual.
What should you prove in order for a preliminary injunction
may be issued?
1. That the applicant must have a clear, legal and
unmistakable right or what we call a right in esse.
2. Material and substantial invasion of such right
3. There is an urgent need to prevent the irreparable injury to
the applicant
4. No other remedy is available to prevent the infliction the
irreparable injury.
What is the quantum of proof required to establish the right
to an injunctive relief?
Prima Facie Evidence or an Ostensible Right to the final relief
prayed for.
NOTE: Just like with attachment if your injunction will act as a
prejudgment of the case as well it will not be granted by the
court.
IRREPARABLE INJURY
An injury is considered irreparable if there is no standard by
which its amount can be measured with reasonable accuracy.
Is loss of business profit considered irreparable injury?
NO
Loss of good will?
YES
Business reputation?
YES
May the trial court’s grant or denial of injunctive relief be
subject of review of the higher courts?
As a general rule they cannot. Unless there is grave abuse of
discretion amounting to lack or excess jurisdiction of the court
who ruled on the injunction.
Can a criminal prosecution be a subject of an injunction?
As a general rule NO, but this is subject to several exceptions.
In the case of BPI v. Hontanosas, Jr., G.R. No. 157163 provides
for the following exceptions:
1. When the injunction is necessary to afford adequate
protection constitutional rights of the accused;
2. When it is necessary for the ordinary administration of
justice or to avoid oppression or multiplicity of actions;
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3. When there is a prejudicial question that is sub judice;
4. When the acts of the officer are without or in excess of
authority
5. When the prosecution is under an invalid law, ordinance or
regulation
6. When double jeopardy is clearly apparent;
7. When the court has no jurisdiction over the offense;
8. When it is a case of persecution rather than prosecution;
9. When the charges are manifestly false and motivated by the
lust for vengeance;
10. When there is no prima facie case against the accused and
a motion to quash on the ground has been denied.
NOTE: when it ceases to be a prosecution and it is only
persecution.
NOTE: You need to apply with a verified application, there
should be an affidavit. Just like in attachment you need to allege
the grounds constituting the same.
Can we have a preliminary injunction issued without
hearing?
NO
Can we deny a preliminary injunction without a hearing?
YES because the Rules only say that it cannot be granted
without a hearing. It does not say that it cannot be denies without
a hearing.
Is a Temporary Restraining Order (TRO) the same as a
preliminary injunction?
NO
Can a TRO be issued ex parte?
YES
For how many hours can an ex-parte TRO be?
72 hours from issuance.
In that 72-hour period there will be a summary hearing. The
hearing will be whether or not the TRO will be extended.
If it is trial court how many days is the TRO?
Only up to 20 days
After that 20 days what happens to your TRO?
It is functus officious. There is no use.
That 20-day period already include your 72 hours. In case there
is extreme urgency, a TRO even without prior hearing and for a
limited period of 72 hours. In case of extreme urgency when he
will suffer grave irreparable injury can be issued. And during that
72-hour period there will be a summary hearing separate and
distinct from the hearing of the injunction.
The 72 hour has a summary hearing for the purpose of
determining whether or not the 72 hours will be extended to a
20-day TRO.
The TRO can be denied without a hearing?
YES
How long is the validity of the TRO if it is issued by the
Supreme Court?
It shall be effective until further orders of the Supreme Court
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How long is the validity of a TRO if it is issued by the CA?
It shall be effective for 60 days from service on the party or
person sought to be enjoined.
NOTE: The 20 day period that is when you will have a hearing
for your preliminary injunction. You want to have your
preliminary injunction before your 20 day TRO lapses. This is
because once the TRO lapses, the act sought to be restrained
can be made by the adverse party because there is nothing that
stops him. So after the lapse of the TRO you should get the
preliminary injunction.
SITUATION: There is a TRO because there is an intra-corporate
dispute. The two groups are fighting over who is the proper
representative of the corporation to withdraw from a bank
account. So in order to prevent the other party to withdraw a
TRO was filed. So the other party cannot withdraw.
Once the TRO is lifted and there is no preliminary injunction
issued, nothing prevents them from withdrawing. Accordingly, it
renders your prayer for injunction moot.
If the action sought to be restrained is already committed, the
injunction is useless. In that 20 period the hearing and issuance
should be finished.
Once the injunction is granted, you need to post for your bond
as well.
What is your remedy against a writ of injunction? Can you
just file a counter-bond?
You must file an affidavit against the injunction issued on the
ground that it is insufficient, or that the damage to the person
enjoined is greater, or it was improperly issued such as when
there is no urgency.
RULE 59
RECEIVERSHIP
RECEIVERSHIP
It is a provisional or ancillary remedy whrein the court appoints
a receiver to receive and preserve the property or fund in
litigation pendente lite, when it does not seem reasonable to the
court that either party should hold it.
Where can you apply your receivership?
• Court where the action is pending
• Court of Appeals
• Supreme Court
The application needs to be verified?
YES
As a rule, can a party to a case be appointed as a receiver?
YES. As long as there is consent between the parties. Without
this consent the court cannot appoint a party as a receiver.
Is the receiver a representative of the party who asked for
the appointment of the receivership?
NO. He is considered as an officer of the court.
WHY?
The receiver should be a neutral or impartial party tasked to
receive and preserve the property or fund in the litigation. He
must be indifferent.
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What should the court consider whether or not it should
appoint a receiver?
There is sufficient cause.
What is your cause for the appointment the receiver?
Whether or not the property is in danger of being destroyed and
whether or not the appointment will prejudice the parties.
Whether it will imperil the rights of others whose rights deserve
as much consideration from the court as the person requesting
the receivership.
Does the applicant for the receivership need to file a bond?
YES
How about the receiver, does he need to file a bond?
Yes. Both the applicant and the receiver should post a bond.
Before the receiver enters into the performance of his
function what should he do in addition to the bond?
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.
Is it correct to say that a bond will not be required if there
is a sufficient ground for the appointment of the receiver?
Meaning they can do away with the bond? For example
there is a wastage, can the court do away with the bond?
NO. Section 2, Rule 59 is clear.
“Before issuing the order appointing a receiver the court shall
require the applicant to file a bond”
The use of the word “shall” denote the mandatory nature. Even
if the other person consents that there is no need for a bond,
there should still be a bond because of the mandatory nature of
the provision.
GROUNDS FOR DENIAL OF THE APPLICATION OR TO
DISCHARGE THE RECEIVER
• When the adverse party FILE 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 a ground or appointment.
• If it is shown that his appointment was obtained WITHOUT
SUFFICIENT CAUSE
• When the bond or counterbond filed is INSUFFICIENT
If the bond of the adverse party is found to be insufficient,
can they just give another bond to make it sufficient?
NO
GENERAL POWERS OF THE RECEIVER
Subject to the control of the court the receiver shall have the
following powers:
• To bring and defend, in such capacity, actions in his own
name;
• To take and keep possession of the property in the
controversy;
• To receive rents;
• To collect debts dues to himself as receiver or the fund,
property, estate, person, or corporation of which he is the
receiver;
• To compound for and compromise the same;
• To make transfers;
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• To pay outstanding debts;
• To divide the money and other property that shall remain
among the persons legally entitled to receive the same;
• Generally, to do such acts respecting the property as the
court may authorize
The receiver should take possession of the property. So
what if the property is in the possession of a third person,
it has to be delivered to the receiver?
YES
What if the third party refuses to deliver it to the receiver,
what is the remedy?
The person will be in contempt. A person 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
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. (SECTION 7)
Can the receiver be entitled to compensation?
YES. 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. (SECTION 8)
GROUND FOR TERMINATION OF RECEIVERSHIP
Whenever the court shall determine that the NECESSITY FOR
A RECEIVER NO LONGER EXISTS.
Once there is a decision to terminate the receivership what
should the court?
it shall, after due notice to all interested parties and hearing,
settle the accounts of the receiver, direct the delivery of the
fund 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.
RULE 60
REPLIVIN
REPLEVIN
A provisional remedy wherein a party praying for the recovery of
possession of personal property may apply for an order for the
delivery to him of such property wrongfully detained by the
adverse party.
Replevin may also refer to the main action for the recovery of
personal property wrongfully detained by the defendant.
Can replevin cover real property?
NO
Who is a person who can file a writ of replevin?
A party praying for the recovery of possession of personal
property
When can you file a writ of replevin?
• At the commencement of the action
• At any time before the Answer
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Do we need to file an affidavit in support of the Replevin?
YES
CONTENTS OF THE AFFIDAVIT
(a) That the applicant is the owner of the property claimed,
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 legis, or if so seized, that it is exempt from
such seizure or custody; and
(d) The actual market value of the property
How much bond should you give in support of your writ of
replevin?
The applicant must also GIVE A BOND, executed to the adverse
party in DOUBLE THE VALUE of the property as stated in the
affidavit, 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.
Is it required that before you file your application for writ of
replevin that you should have had a prior demand on the
other party to deliver the possession to you and he just
refused to heed such demand?
NO. The Rules does not provide that there must be prior
demand before the filing of an application for a writ of replevin.
Is there an instance where a replevin can contemplate a real
property?
They will treat the real property as a movable property such as
when there is a CHATTEL MORTGAGE. In that instance it will
be binding to the parties and therefore they can consider the real
property as if it is a movable party. However, it does not bind a
third person because it may only be considered as such after
the consent of the parties.
What if there is a third party claiming for such right over the
replevin subject to the replevin?
The third person should make an AFFIDAVIT of his title
therefore, or right to the possession thereof, stating the
grounds therefor, and serves such affidavit upon the sheriff
while the latter has possession of the property and a copy
thereof upon the applicant.
Do you need to file a separate case if you want to finally
resolve the issue on who has the real right over the property
if it is a third-party claimant?
YES
Can the third party intervene in the action?
YES. The same principle applies to the attachment when there
is a third party complainant.
When a property being subject to a replevin is seized,
should it also be destroyed?
NO
DUTY OF THE SHERIFF
Upon receiving such order, the sheriff must serve a copy thereof
on the adverse party, together with a copy of the application,
affidavit and bond, and must forthwith take the property, if it be
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in the possession of the adverse party, or his agent and retain • At any time before entry • At any time before
in his custody. of judgement answer

If the property or any part thereof be concealed in a building or RULE 61

enclosure, the sheriff must demand its delivery, and if it be not SUPPORT PENDENTE LITE
delivered, he must cause the building or enclosure to be broken
open and take the property into his possession.
SUPPORT PENDENTE LITE
It is support provided a party during the pendency of the
After the sheriff has taken possession of the property as herein
litigation.
provided, he must keep it in a secure place and shall be
responsible for its delivery to the party entitled thereto upon What is the basis of support?
receiving his fees and necessary expenses for taking and
Obligation of the parties
keeping the same.
How do we know how much of the support will be given?
What is your remedy if the writ of replevin is improperly The necessity and the capacity of the person who will give
served? support.
Motion to Quash the writ of replevin
Cooling-off period in Legal Separation
If you are serving the replevin, how are we going to execute
The parties are given a chance at reconciliation within a period
the writ of replevin? of 6 months.
Once the sheriff gets the property subject to the writ of
Will the case have a hearing during that period?
replevin, should he immediately deliver it to the applicant? NO. The rule is during the cool-off period the trial will not
NO. the sheriff must keep it in a secure place and shall be
proceed on the case so that they will give the parties a chance
responsible for the delivery to the party entitled thereto upon to reconcile.
receiving his fees and necessary expenses for taking and
keeping the same
Since trial will not proceed, does that mean that during the
same period the court cannot rule on the support pendente
Should he keep it forever?
lite of the parties?
If within 5 days after the taking the property by the sheriff the
NO. Because what is only prohibited on the cooling-off period is
property shall be delivered to the applicant.
on the grounds of legal separation but it does not prohibit
incidents such as your right to support.
It has 5 days to give the opposing party a right to avail of
remedies.
In order to apply for support pendente lite should your
application be verified?
REMEDY AGAINST WRIT OF REPLEVIN YES
• File a Delivery Bond to terminate the writ of replevin
• The party against whom the writ is issued can assail the What else should be included in your application?
insufficiency A verified application for support pendente lite may be filed by
any party stating the grounds for the claim and the financial
WRIT OF ATTACHMENT v. REPLEVIN conditions of both parties, and accompanied by affidavits,
WRIT OF ATTACHMENT REPLEVIN depositions or other authentic documents in support thereof.
It is available even if the It is available only where the
recovery of personal principal relief sought in You filed for application for support pendente lite after you
property is only an incidental action is the recovery of filed an application for nullity against your spouse. A
relief sought in the action. possession of personal petition for nullity of marriage was filed but at the same time
property. you asked for support. Are you still entitled to support?
COVERAGE What is your right? Why are you asking for support?
BOTH Personal Property Personal Property Because at that point in time you are still married and by law you
and Real Property. are still entitled to support as a spouse in the absolute
EXCEPTION: Chattel community or conjugal partnership of gains as the case may be.
Mortgage
Presupposes that the It may be availed of to Who has the obligation to give support?
property has been recover personal property It is the spouses who has the obligation to give support. But in
concealed, removed, or even if it is being concealed, case of urgent need, the court can provisionally require only one
disposed of to prevent its removed or disposed of of them first to give support subject to reimbursement of the
being found or taken by the other.
applicant.
DELIVERY The payment should it be divided equally according to their
Personal property is not Delivered to the applicant resources?
delivered to the applicant NO. It should be in proportion to their income.
but merely attached
WHEN TO AVAIL If the person obliged to give support pendente lite refuses
• At the commencement • At the commencement to give support, what is the remedy of the person entitled
of the action of the action to support?
When the person ordered to give support pendente lite refuses
or fails to do so, any third person who furnished the support to
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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.

In support if the person who is obliged to give support refuses to

do so, the court can have a third person furnish the support
subject to reimbursement from the person who is obliged to give
support.

ADDITIONAL NOTES ON SUPPORT PENDENTE LITE

The court in support can issue an enforcement order. The court
motu proprio or upon motion issue an order of execution and if
they refuse, it is without prejudice to the liability of contempt.

As a general rule if the writ is directed to the sheriff, you cannot

be held in contempt. This is an instance when there is payment
of money but there can still be contempt.

In criminal cases you can have support provided that the civil
case is deemed instituted with the criminal case.

What are the criminal cases that can have support?

Rape, VAWC. But in these cases, you can only claim support in
the civil cases provided that the civil case is deemed instituted
with your criminal case.

If the civil case is reserved to be filed later on or the civil case is

filed in advance and it is not consolidated with the criminal case,
support pendente lite cannot be applied because there should
be a civil aspect.

If Mr. X, putative father (alleged to be the biological fatner), was

ordered to give support pendente lite, and later it is found that
he is not liable therefor because he is not the father. What is the
remedy?
The remedy is that the recipient will be ordered by the court to
return the amounts and it will be subject to legal interest.

When do you count the legal interest?

It is from the date of the actual payment.

REMEDY OF THE RECEPIENT

It is without prejudice to the right of the recipient to ask
reimbursement from the person who is obliged to give support.

Should it be in that case?

NO. Because he is not a party to the case. It would be subject
to a separate action, there is no violation of res judicata or
forum shopping because there is no identity of parties. The
obligation will rest on the one who is obliged to give support.

If the recipient refuses to reimburse to the one who gave, he

may seek reimbursement from the person legally obliged to give
support. So the person legally obliged is liable to the applicant
or to the one erroneously made liable.

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