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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
COMPILATION AND UPDATES ON MODES OF DISCOVERY
*From the notes of Atty. Jess Zachael Espejo
MODES OF DISCOVERY IN GENERAL
MEANING OF DISCOVERY (Riano)
In general, a discovery is a device employed by a party to obtain
information about relevant matters on the case from the adverse
party in preparation for the trial. As contemplated by the Rules, the
device may be used by all the parties to the case. It is the term used
to describe a category of procedural devices employed by a party
to an action, prior to trial, to require the adverse party to disclose
information that is essential for the preparation of the requesting
party's case and that the other party alone knows or possesses.
Discovery devices narrow the issues of a lawsuit, obtain evidence
not readily accessible to the applicant for use at trial, and ascertain
the existence of information that might be introduced as evidence
at trial.
A court will deny discovery if the party is using it as a fishing
expedition to ascertain information for the purpose of starting an
action or developing a defense. A court is responsible for protecting
against the unreasonable investigation into a party's affairs and
must deny discovery if it is intended to annoy, embarrass, oppress,
or injure the parties or the witnesses who will be subject to it. A
court will stop discovery when used in bad faith.
AIM OR PURPOSE OF DISCOVERY PROCEDURES:
LITIGATION SHOULD NOT BE CARRIED IN THE DARK
SECURITY BANK CORPORATION versus COURT OF APPEALS
G.R. No. 135874, January 25, 2000
In Republic v. Sandiganbayan, 204 SCRA 213, November 21,
1991, the Court discussed exhaustively the significance of the
various modes of discovery XXX. In sum, the Court held that the
said Rule aims to enable the parties to inform themselves, even
before the trial, of all the facts relevant to the action, including
those known only to the other litigants. Through this procedure,
"civil trials should not be carried on in the dark." We quote:
... Indeed, it is the purpose and policy of the law that
the parties - before the trial if not indeed even before
the pre-trial — should discover or inform themselves
of all the facts relevant to the action, not only those
known to them individually, but also those known to
their adversaries; in other words, the desideratum is
that civil trials should not be carried on in the dark;
and the Rules of Court make this ideal possible
through the deposition-discovery mechanism set
forth in Rules 24 to 29. The experience in other
jurisdictions has been that ample discovery before
trial, under proper regulation, accomplishes one of
the most necessary ends of modern procedure: it not
only eliminates unessential issues from trials thereby
shortening them considerably, but also requires
parties to play the game with the cards on the table so
that the possibility of fair settlement before trial is
measurably increased....
As just intimated, the deposition-discovery procedure
was designed to remedy the conceded inadequacy
and cumbersomeness of the pre-trial functions of
notice-giving, issue-formulation and fact revelation
theretofore performed primarily by the pleadings.
The various modes or instruments of discovery are
meant to serve (1) as a device, along with the pre-trial
hearing under Rule 20, to narrow and clarify the basic
issues between the parties, and (2) as a device for
ascertaining the facts relative to those issues. The
evident purpose is, to repeat, to enable the parties,
consistent with recognized privileges, to obtain the
fullest possible knowledge of the issues and facts
before civil trials and thus prevent that said trials are
carried on in the dark.
LIBERAL APPLICATION AND TREATMENT
SUBJECT TO BASIC EVIDENTIARY REQUIREMENTS
Jurisprudence seems to imply that discovery measures are allowed
and will be given a liberal treatment if the subject of discovery
fulfills basic evidentiary requirements.
Rule 128, Section 3 of the Rules of Court provides that evidence is
admissible when it is relevant to the issue and is not excluded by
the Constitution, the law or the Rules of Court.
Evidence is relevant if has such a relation to the fact in issue as to
induce belief in its existence or non-existence (Rule 128, Section 4).
Applied to discovery, the subject thereof must be related to the
facts in issue. The use of the various modes of discovery may yield
evidentiary facts or facta probantia, which are facts necessary for
the determination of the ultimate facts or facta probanda.
Relevancy describes the relationship between the facta probanda
and the facta probantia.
Evidence is competent and admissible if there is no law or Rule that
declares it to be otherwise. For example, factual matters declared
by law to be privileged information or communication cannot be
inquired upon and are thus beyond the scope of discovery.
Discovery rules are to be accorded a broad and liberal treatment
and should not be unduly restricted if the matters inquired into are
otherwise relevant and not privileged, and the inquiry is made in
good faith and within the bounds of law. Otherwise, the advantage
of a liberal discovery procedure in ascertaining the truth and
expediting the disposal of litigation would be defeated (MARTIRES
versus HEIRS OF SOMERA, G.R. No. 210789, December 03, 2018)
Courts are given wide latitude in granting motions for discovery in
order to enable parties to prepare for trial or otherwise to settle
the controversy prior thereto. Thus, what is chiefly contemplated is
the discovery of every bit of information which may be useful in the
preparation for trial, such as the identity and location of persons
having knowledge of relevant facts; those relevant facts
themselves; and the existence, description, nature, custody,
condition, and location of any books, documents, or other tangible
things. Hence, "the deposition-discovery rules are to be accorded a
broad and liberal treatment. No longer can the time-honored cry of
'fishing expedition' serve to preclude a party from inquiring into the
facts underlying his opponent's case. Mutual knowledge of all the
relevant facts gathered by both parties is essential to proper
litigation. To that end, either party may compel the other to
disgorge whatever facts he has in his possession. The deposition-
discovery procedure simply advances the stage at which the
disclosure can be compelled from the time of trial to the period

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
preceding it, thus reducing the possibility of surprise (REPUBLIC
versus SANDIGANBAYAN, 204 SCRA 213, November 21, 1991).
DUTY OF THE COURT IN RELATION TO
THE MODES OF DISCOVERY (Riano)
The modes of discovery are considered by the Supreme Court as
vital components of case management in pre-trial courts. Hence,
aside from preparing the summons within one (1) day from the
receipt of the complaint, the court is required to issue an order
requiring the parties to avail of interrogatories to parties under Rule
25 and request for admission by adverse party under Rule 26 or at
their discretion make use of depositions under Rule 23 or other
measures under Rules 27 and 28 within five (5) days from the filing
of the answer. A copy of this order shall be served upon the
defendant together with the summons. A copy of the order shall
also be served upon the plaintiff (A.M. No.-03-1-09-SC, July 13,
2004).
MODES OF DISCOVERY UNDER THE RULES OF COURT
The following are the modes of discovery under the Rules of Court:
a. Depositions pending action (Rule 23);
b. Depositions before action or pending appeal (Rule 24);
c. Interrogatories to parties (Rule 25);
d. Admission by adverse Party (Rule 26);
e. Production or inspection of documents and things (Rule
27); and
f. Physical and mental examination of persons (Rule 28).
DEPOSITION
Deposition refers to the testimony of a witness taken upon
interrogatories, not in open court, but in pursuance of a
commission to take testimony issued by a court, or under a general
law on the subject, and reduced to writing and duly authenticated,
and intended to be used upon the trial of an action in court. It is a
written declaration under oath, made upon notice to the adverse
party for the purpose of enabling him to attend and cross-examine;
or upon written interrogatories. (Black's Law Dictionary, Revised
4th Edition). It is the giving of notice to the adverse party which
especially distinguishes a deposition from an ordinary affidavit
(Zinner v. Louis Meyers & Son, 181 Misc. 344, 43 N.Y.S.2d 319, 320).
With specific reference to a deposition under the Rules of Court, it
refers to the written testimony of a witness given in the course of a
judicial proceeding, in advance of the trial or hearing, upon oral
examination or in response to written interrogatories, and where
an opportunity is given for cross-examination.
INTERROGATORIES
An interrogatory is a set or series of written questions drawn up for
the purpose of being propounded to a party or a witness whose
testimony is taken on deposition. It refers to a series of formal
written questions used in the judicial examination of a party or a
witness.
Interrogatories are either direct or cross, the former being those
which are put on behalf of the party calling a witness; the latter are
those which are interposed by the adverse party. (Black's Law
Dictionary, Revised 4th Edition).
Interrogatories under Rule 25 are served by a party to an action
upon his opponent. Any party desiring to elicit material and
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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 (Rule 25, Section 1).
ADMISSION BY ADVERSE PARTY
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 or
of the truth of any material and relevant matter of fact (Rule 26,
Section 1). This mode of discovery allows a party to request his
opponent to admit certain material and relevant matters which
may, in all probability, not be disputed during trial. Any such
matters admitted are withdrawn from contention and from the
necessity of proof, thereby simplifying and limiting the
presentation of evidence. The matters admitted would be
considered judicial admissions that require no proof (Rule 129,
Section 4).
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
Upon motion of any party showing good cause therefor, the court
in which an action is pending may order any party to produce and
permit the inspection and copying of any designated documents or
order any party to permit entry upon designated land or other
property in his possession or control for the purpose of inspecting
or photographing the property or any designated relevant object or
operation thereon (Rule 27, Section 1).
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
Under Rule 28, 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.
APPLICABILITY TO CRIMINAL CASES (Riano)
The accused in a criminal case has the right to avail of the various
modes of discovery. There is nothing in the Rules of Court which
limit the defendant's right to avail of the various modes of discovery
only to civil cases. Corollarily, there are "modes of discovery" under
Rule 119 of the Rules on Criminal Procedure although they are not
called depositions, etc. but are called other names. For instance,
the procedure under Sections 12 and 15 of Rule 119, although
similar to depositions, is called conditional examination of
witnesses. (See Sections 12 to 15, Rule 119).

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 23
DEPOSITIONS PENDING ACTION
*From the notes of Atty. Jess Zachael Espejo
Section 1. Depositions pending action, when may be taken. -
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. (1a)
DEPOSITION DEFINED
DEPOSITION is the written testimony of a witness given in the
course of a judicial proceeding, in advance of the trial or hearing,
upon oral examination or in response to written interrogatories,
and where an opportunity is given for cross-examination (REPUBLIC
versus SANDIGANBAYAN, G.R. No. 112710, May 30, 2001).
Simply, it is the testimony of a witness reduced to writing in due
form of law, taken by virtue of a commission or other authority of
a competent tribunal.
PEOPLE versus WEBB
G.R. No. 132577, August 17, 1999
As defined, a deposition is the testimony of a witness taken
upon oral question or written interrogatories, not in open court,
but in pursuance of a commission to take testimony issued by
court, or under a general law or court rule on the subject, and
reduce to writing and duly authenticated, and intended to be
used in preparation and upon the trial of a civil or a criminal
prosecution. A pretrial discovery device by which one party
(through his or her attorney) ask oral questions of the other
party or of a witness for the other party. The person who is
deposed is called the deponent. The deposition is conducted
under oath outside of the court room, usually in one of the
lawyer's offices. A transcript — word for word account - is made
of the deposition. Testimony of (a) witness, taken in writing,
under oath or affirmation, before some judicial officer in answer
to questions or interrogatories.
PURPOSES OF DEPOSITION-TAKING
The purposes of taking depositions are to:
1. Give greater assistance to the parties in ascertaining the
truth and in checking and preventing perjury;
2. Provide an effective means of detecting and exposing
false, fraudulent claims and defenses;
3. Make available in a simple, convenient and inexpensive
way, facts which otherwise could not be proved except
with great difficulty;
4. Educate the parties in advance of trial as to the real value
of their claims and defenses thereby encouraging
settlements;
5. Expedite litigation;
6. Safeguard against surprise;
7. Prevent delay;
8. Simplify and narrow the issues; and
9. Expedite and facilitate both preparation and trial.
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CROSS-EXAMINATION IN DEPOSITION TAKING
Section 3 provides that:
Section 3. Examination and cross-examination. —
Examination and cross-examination of deponents may
proceed as permitted at the trial under Sections 3 to
18 of Rule 132. (3)
Correlatively, Section 6 of Rule 132 provides that:
Section 6. Cross-examination; its purpose and extent.
- Upon the termination of the direct examination, the
witness may be cross-examined by the adverse party
on any relevant matter, with sufficient fullness and
freedom to test his or her accuracy and truthfulness
and freedom from interest or bias, or the reverse, and
to elicit all important facts bearing upon the issue. (a)
As a rule in Evidence, there must be an opportunity to cross-
examine a witness also to determine whether or not he is testifying
on facts based on his own personal knowledge or facts derived from
his own perception. It is required that a witness must be subjected
to cross examination by opposing counsel to test the perception,
memory, veracity and articulateness.
The opportunity to cross-examine a witness is as important in the
taking of a deposition as it is important to testimonies made in open
court. While the rules of evidence are applied in the taking of a
deposition, the deposition officer, or the person before whom the
deposition is taken, has no power to rule on objections regarding
the admissibility of evidence.
Thus, it is vital that the adverse party must register timely
objections and have the same recorded so that the objection can
be ruled upon later on in court.
It must be noted, however, that despite the taking of a deposition,
it is not intended as a substitute for a testimony made in court.
Hence, if the purpose of the taking of a deposition is to have the
same in advance of a trial or hearing where the deponent is
intended as a witness, he must still testify in court and repeat his
testimony there. In effect, the deponent may be cross-examined
twice: first, during the taking of his deposition and second, during
his time testifying in court.
Q: However, are there instances when the deponent is not
subjected to cross-examination at all and his testimony is not
considered hearsay?
A: YES. Under Section 4(c), the deposition of a witness may be used
as his direct testimony. For instance, the deponent's testimony was
taken but he died before he was allowed to testify in court. Also,
under Section 4, the deposition of a witness may be taken without
and used against the adverse party for as long as he was duly
notified of the taking of the deposition but simply ignores the
notice and fails to appear. The adverse party thus loses the right to
cross-examine. Despite lack of cross-examination, the deposition
will not constitute hearsay and is thus admissible as the deceased
witness' testimony.
TYPES OF DEPOSITIONS (Riano)
A deposition is the taking of the testimony of any person, whether
he be a party or not, but at the instance of a party to the action.
This testimony is taken out of court. It may be either by: (a) an oral
examination, or by (b) a written interrogatory (Sec. 1, Rule 23, Rules
of Court). A deposition may be sought for use in a future action

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
(Rule 24), during a pending action (Rule 23) or for use in a pending
appeal (Rule 24).
If the deposition is for use during a pending trial action, it is
commonly called a deposition DE BENNE ESSE and is governed by
Rule 23. If it is to perpetuate a testimony for use in future
proceedings as when it is sought before the existence of an action,
or for cases on appeal, it is called a deposition IN PERPETUAM REI
MEMORIAM.
WHEN LEAVE OF COURT IS REQUIRED FOR TAKING A
DEPOSITION PENDING ACTION
Leave of court for taking a deposition is not required after an
answer has been served. However, in the following instances, leave
of court would be required:
(a) Leave of court is required before the service of an answer
but after jurisdiction has been acquired over the
defendant or over the property subject of the action;
(b) When it is the deposition of a prisoner that is to be taken,
his deposition may be taken only with leave of court and
upon such terms as the court may prescribe (Sec. 1, Rule
23, Rules of Court).
REASONS BEHIND REQUIREMENT OF LEAVE OF COURT
Why is there a need for leave of court to take the deposition of a
person when there is still no service of an answer and why is leave
of court not required when an answer has been served? The
distinction, it is posited, lies in PRACTICALITY and ECONOMY.
When an answer has been served, the issues are already joined. The
defendant has already laid down his defenses, admissions and
denials. Since the taking of a deposition serves the purpose of
narrowing and clarify the basic issues in the case, the parties
already know what issues need narrowing and clarification.
When an answer has not yet been served, the taking of a deposition
may be premature and superfluous. Since the defendant has not
yet revealed his defenses, admissions and denials, the party seeking
to perpetuate testimony through a deposition, will figuratively be
groping in the dark as to what specific evidentiary matters he needs
to clarify and narrow down. Thus, leave of court is required to
ensure that resort to such mode of discovery will not unnecessarily
waste time and expense or lead to delays rather than promote
speed and efficiency.
Furthermore, there appears to be a deeper reason for the
difference in requirement under the previous incarnations of the
Rules of Court. Under the 1997 Rules, if the defendant wants to
question the jurisdiction of the court over his person because
summons was improperly served, he should not file an answer.
Rather, he should file a motion to dismiss on the ground of lack of
jurisdiction of the court over his person. This is a ground he cannot
set up as an affirmative defense in an answer. If he files an answer,
there is deemed to be a voluntary appearance which waives the
necessity of formal notice (Rule 14, Section 20).
Hence, where the defendant files an answer, it means that he is not
questioning the jurisdiction of the court over his person. Any
deposition may thus be taken without leave of court. The
defendant cannot then refuse to be deposed by setting up lack of
jurisdiction over his person. The court need not worry about the
deposition being frustrated by such lack of jurisdiction because the
defendant already filed an answer.
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The opposite applies in depositions sought to be taken before
service of an answer. In this case, the defendant can still file a
motion to dismiss on the ground of lack of jurisdiction over his
person. He can still refuse to be deposed. Thus, the taking of a
deposition must still be subject to the discretion of the court, again,
to ensure that resort to such mode of discovery will not
unnecessarily waste time and expense or lead to delays.
Note also that a deposition can be taken at the instance of any
party, the plaintiff or defendant. If the defendant is allowed to have
the deposition of a person taken before he files his answer without
leave of court, the process can be abused and unduly taken
advantage of by him. He can simply take the deposition of the
plaintiff and the plaintiff's witnesses and tailor-make his answer
based on the testimonies and evidence he will discover. Thus,
deposition-taking ought to be regulated by the court during the
stage when the defendant still has not filed and served his answer.
WHO MAY APPLY FOR THE TAKING OF A DEPOSITION?
Section 1 provides that the taking of a deposition may be at the
instance of ANY PARTY (i.e. the plaintiff and defendant). As to who
may be a deponent, Section 1 provides that it may be any person,
whether a party or not.
CAN A NON-RESIDENT FOREIGN CORPORATION APPLY FOR
DEPOSITION-TAKING?
Yes, for as long as it is a party. Thus, in the case of:
SAN LUIS versus ROJAS, ET AL.
G.R. No. 159127, March 3, 2008
Unequivocally, the rule does not make any distinction or
restriction as to who can avail of deposition. The fact that
private respondent is a non-resident foreign corporation is
immaterial. The rule clearly provides that the testimony of any
person may be taken by deposition upon oral examination or
written interrogatories, at the instance of any party, Depositions
serve as a device for ascertaining the facts relative to the issues
of the case. The evident purpose is to enable the parties,
consistent with recognized privileges, to obtain the fullest
possible knowledge of the issues and facts before civil trials and
thus prevent the said trials from being carried out in the dark.
WHEN MAY DEPOSITIONS BE TAKEN?
Depositions may be taken before action, at pre-trial, while the
action is pending or even pending appeal. They may also be taken
during the period of execution of a final judgment.
EAGLERIDGE DEVELOPMENT CORP. versus CAMERON
GRANVILLE
G.R. No. 204700, November 24, 2014
In Dasmariñas Garments, Inc. v. Reyes, G.R. No. 108229, August
24, 1993, this court declared that depositions, as a mode of
discovery, “may be taken at any time after the institution of any
action (as there is) no prohibition against the taking of
depositions after pre-trial.” Thus:
Dasmariñas also contends that the "taking of
deposition is a mode of pretrial discovery to be availed
of before the action comes to trial." Not so.
Depositions may be taken at any time after the
institution of any action, whenever necessary or

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
convenient. There is no rule that limits deposition-
taking only to the period of pre-trial or before it; no
prohibition against the taking of depositions after pre-
trial. Indeed, the law authorizes the taking of
depositions of witnesses before or after an appeal is
taken from the judgment of a Regional Trial Court "to
perpetuate their testimony for use in the event of
further proceedings in the said court”, and even
during the process of execution of a final and
executory judgment (East Asiatic Co. v. C.I.R., 40 SCRA
521, 544).
Section 2. 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. (2)
SUBJECT MATTER OF DEPOSITIONS
The deponent may be examined regarding any matter, 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.
WHILE THE DEPONENT MAY BE EXAMINED AS TO ANY MATTER,
THIS VERY BROAD SCOPE OF EXAMINATION IS SUBJECT TO THE
FOLLOWING LIMITATIONS:
1. The matter inquired into must not be privileged;
Privileged communications can be found in Section 24 of Rule 130.
They are: (a) communication between husband and wife; (b)
communication between attorney and client; (c) communication
between physician and patient; (d) communication between priest
and penitent; and (e) privileged communications relating to public
office. In addition, trade secrets are considered privileged
information (Section 26, Rule 130).
There are, however, other privileged matters that are not
mentioned by Rule 130. Thus, newsmen may not be compelled to
disclose the source of published news. Voters may not be
compelled to disclose for whom they voted. Bank deposits are also
privileged under the Secrecy of Bank Deposit Act. Information
contained in tax census returns are also considered confidential.
Finally, matters discussed during the conduct of alternative modes
of dispute resolution are also confidential.
2. The matter inquired into must be relevant to the subject
matter of the pending action, Thus, a deponent must be
examined only with respect to matters that constitute
relevant evidence, or evidence which has a tendency in
reason to establish the probability or improbability of the
fact in issue in the case.
3. The examination is always subject to reasonable
regulation of the court under Sections 16 and 18 of Rule
23.
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While it is true that leave of court in certain instances is not
required for the purpose of taking a deposition, depositions under
Rule 23 relate to pending actions over which the court has control.
The court is authorized to issue orders to protect the parties and
deponents under Section 16 or to terminate or limit the
examination under Section 18 of this Rule.
Section 4. Use of depositions. - At the trial or upon the hearing
of a motion or an interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules of evidence, may
be used against any party who was present or represented at
the taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions:
(a) Any deposition may be used by any party for the
purpose of contradicting or impeaching the testimony
of the deponent as a witness;
(b) The deposition of a party or of any one who at the
time of taking the deposition was an officer, director,
or managing agent of a public or private corporation,
partnership, or association which is a party may be
used by an adverse party for any purpose;
(c) 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
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
(d) If only part of a deposition is offered in evidence by a
party, the adverse party may require him or her to
introduce all of it which is relevant to the part
introduced, and any party may introduce any other
parts. (4a)
WHEN MAY A DEPOSITION BE USED IN A PENDING ACTION?
Any part or all of a deposition may be used:
1.) At the trial itself, as when the parties are presenting
their respective evidence-in-chief;
2.) During a hearing of a motion;
An example of this is Rule 35 on Summary Judgment.
Section 1. Summary judgment for claimant. — A party
seeking to recover upon a claim, counterclaim, or cross-
claim or to obtain a declaratory relief may, at any time
after the pleading in answer thereto has been served,
move with supporting affidavits, depositions or
admissions for a summary judgment in his or her favor
upon all or any part thereof.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
3.) During a hearing of an interlocutory proceeding.
An example of this is Rule 61 on Support Pendente Lite.
Section 1. Application. — At the commencement of the
proper action or proceeding, or at any time prior to the
judgment or final order, a verified application for support
pendente lite may be filed by any party stating the
grounds for the claim and the financial conditions of both
parties, and accompanied by affidavits, depositions or
other authentic documents in support thereof. (la)
AGAINST WHOM MAY A DEPOSITION BE USED?
Any part or all of a deposition may be used against:
1.) Any party who was present; or
2.) A party who was represented at the taking of the
deposition; or
3.) A party who did not appear or represented but was duly
notified of the scheduled deposition taking.
The procedure for deposition taking is first, to notify the other party
of the date, place and time of the deposition taking of a person. The
other party is free to go there and participate. So if person
appeared and participated, he is bound by the deposition. If he fails
to appear but sent a representative, the person is still bound.
Suppose a person received the notice and never bothered to go or
participate, he is still bound because the law says, for as long as you
are notified, you are bound. So whether you will come or not, you
are bound by the deposition taking. In this case, you might as well
show up.
USES OF DEPOSITION
Note, that a deposition is never intended as an easy substitute for
actual testimony in court. The principle therefore to remember is
that the deponent's testimony must be repeated in court for it to
be admitted as evidence. The deponent is not exempt from
testifying in court, as a general rule. An exception to this is when
the deponent is the adverse party under paragraph (b).
Depositions are principally made available by law to the parties as
a means of informing themselves of all the relevant facts; they are
not therefore generally meant to be a substitute for the actual
testimony in open court of a party or witness. The deponent must
as a rule be presented for oral examination in open court at the trial
or hearing (DASMARIÑAS GARMENTS, INC. versus REYES, G.R. No.
108229, August 24, 1993). This is a requirement of the rules of
evidence. Section 1, Rule 132 of the Rules of Court provides:
SECTION 1. Examination to be done in open court. —
The examination of witnesses presented in a trial or
hearing shall be done in open court, and under oath or
affirmation. Unless the witness is incapacitated to
speak, or the question calls for a different mode of
answer, the answers of the witness shall be given
orally.
Any deposition offered to prove the facts therein set out during a
trial or hearing, in lieu of the actual oral testimony of the deponent
in open court, may be opposed and excluded on the ground that it
is hearsay: the party against whom it is offered has no opportunity
to cross-examine the deponent at the time that his testimony is
offered. It matters not that opportunity for cross-examination was
afforded during the taking of the deposition; for normally, the
6
opportunity for cross-examination must be accorded a party at the
time that the testimonial evidence is actually presented against him
during the trial or hearing.
(a) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness;
In both the taking of a deposition and the presentation of
testimonial evidence in court, the deponent or witness is sworn to
an oath to tell the truth. Any falsehood in these occasions opens
the witness to perjury.
The deposition of an intended witness in court may be taken in
advance. In essence, the taking of his deposition under oath
preserves the testimony for later use in trial. It is only a means of
knowing what the witness will testify about.
IMPEACHMENT
Suppose that the deponent is presented as a witness. The parties,
adverse or not, may espouse a reasonable expectation that the
deponent will testify exactly according to how he testified when his
deposition was taken. Suppose further that the deponent reversed
his story and totally contradicted his own deposition. Any party may
then use his deposition to contradict or impeach the testimony of
the deponent as a witness, in relation to Rule 132, Section 11:
Section 11. Impeachment of adverse party's witness.
- A witness may be impeached by the party against
whom he or she was called, by contradictory evidence,
by evidence that his or her general reputation for truth,
honesty, or integrity is bad, or by evidence that he or
she has made at other times statements inconsistent
with his or her present testimony, but not by evidence
of particular wrongful acts, except that it may be
shown by the examination of the witness, or record of
the judgment, that he or she has been convicted of an
offense. (11a)
Note that under Rule 132, Section 11, it is the adverse party who
can impeach the witness. The party who presented the witness has
no right to impeach his own witness, as a general rule, under Rule
132, Section 12:
Section 13. Party may not impeach his or her own
witness. - Except with respect to witnesses referred to
in paragraphs (d) and (e) of Section 10 of this Rule, the
party presenting the witness is not allowed to impeach
his or her credibility.
A witness may be considered as unwilling or hostile only
if so declared by the court upon adequate showing of his
or her adverse interest, unjustified reluctance to testify,
or his or her having misled the party into calling him or
her to the witness stand.
The unwilling or hostile witness so declared, or the
witness who is an adverse party, may be impeached by
the party presenting him or her in all respects as if he or
she had been called by the adverse party, except by
evidence of his or her bad character. He or she may also
be impeached and cross-examined by the adverse party,
but such cross-examination must only be on the subject
matter of his or her examination-in-chief. (12a)

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Based on the above provision, a party can only impeach his own
witness if the witness is an unwilling or hostile one or if his witness
is an adverse party or an officer, director, or managing agent of a
public or private corporation or of a partnership or association
which is an adverse party.
Q: Can the party who caused the taking of the deposition and who
presented the deponent as witness impeach his own witness?
A: YES. Such party may have the witness declared as an unwilling
or hostile witness.
How is the deponent-witness impeached by the inconsistencies
between his deposition and his testimony in open court? We apply
Section 14 of Rule 132:
Section 14. How witness impeached by evidence of
inconsistent statements. – Before a witness can be
impeached by evidence that he or she has made at other
times statements inconsistent with his or her present
testimony, the statements must be related to him or her,
with the circumstances of the times and places and the
persons present, and he or she must be asked whether
he or she made such statements, and if so, allowed to
explain them. If the statements be in writing, they must
be shown to the witness before any question is put to
him or her concerning them. (13a)
(b) The deposition of a party or of any one who at the time of
taking the deposition was an officer, director, or managing agent
of a public or private corporation, partnership, or association
which is a party may be used by an adverse party for any purpose;
Note that paragraph (b) presents a situation where the deponent is
himself a party. His deposition may be used by the adverse party
for any purpose, including impeachment. Because the use of the
deposition is not limited to impeachment, this paragraph is an
exception to the rule that the deponent must still testify in court.
Hence, any admission made by the party-deponent in his
deposition can be used as evidence against him without having to
present him as a witness in court. Take further note that, if the
party-deponent makes admissions that are favorable to him, such
admissions do not bind the adverse party. These admissions are in
the concept of a self-serving admission and are therefore
inadmissible.
REQUISITES OF SELF-SERVING EVIDENCE:
(1) The testimony is favorable to the declarant;
(2) It is made extrajudicially; and
(3) It is made in anticipation of litigation.
REASONS FOR INADMISSIBILITY
1.) A man may be safely believed if he declares against his
own interest, but not if he advocates his interest.
(Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342)
2.) It is excluded on the same ground as any hearsay
evidence, that, the lack of opportunity for cross-
examination by the adverse party. (National
Development Co., v. Workmen's Compensation
Commission, 19 SCRA 865)
(c) 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
7
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
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;
Paragraph [c] is an exception to paragraph [a]. Paragraph [a] applies
only to a deposition of a witness for contradicting or impeaching his
testimony. It is only in paragraph [b] which applies the use of
deposition for any purpose but it refers to the deposition of the
adverse party.
Paragraph [c] allows the use of the deposition of a WITNESS for any
purpose. Stated otherwise, and by necessary implication, the
instances referred to under paragraph [c] are also exceptions to the
principle that a deponent is not exempt from testifying in court. A
deposition taken under paragraph [c] can be used as a substitute
for oral testimony.
These situations highlight the importance of cross-examination and
making timely objections during deposition-taking. If the
deposition is admitted as a substitute for oral testimony, there is
no more opportunity to cross-examine or object later during trial.
At least, when there was prior cross-examination and objections
during deposition-taking, the admission of the deposition in place
of oral testimony will always be subject to the said objections.
The principle conceding admissibility to a deposition when the
deponent is dead, out of the Philippines, or otherwise unable to
come to court to testify, is consistent with another rule of evidence,
found in Section 49, Rule 132 of the Rules of Court, to wit:
Section 49. Testimony or deposition at a former
proceeding. - The testimony or deposition of a witness
deceased or out of the Philippines or who cannot, with
due diligence, be found therein, or is unavailable or
otherwise unable to testify, given in a former case or
proceeding, judicial or administrative, involving the
same parties and subject matter, may be given in
evidence against the adverse party who had the
opportunity to cross-examine him or her.
SANTAMARIA versus CLEARY
G.R. No. 197122, June 15, 2016
As regards the taking of depositions, Rule 23, Section 1 is clear
that the testimony of any person may be taken by deposition
upon oral examination or written interrogatories at the instance
of any party.
San Luis explained that this provision "does not make any
distinction or restriction as to who can avail of deposition." Thus,
this Court found it immaterial that the plaintiff was a non-
resident foreign corporation and that all its witnesses were
Americans residing in the United States.
On the use of depositions taken, we refer to Rule 23, Section 4
of the Rules of Court. This Court has held that "depositions may
be used without the deponent being actually called to the
witness stand by the proponent, under certain conditions and
 8
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

for certain limited purposes." These exceptional cases are PARAGRAPH PARAGRAPH PARAGRAPH
enumerated in Rule 23, Section 4(c) as follows: A B C
Deponent The deponent The deponent The deponent
(c) The deposition of a witness, whether or not a party, may be is any witness, is a party or an is any witness,
used by any party for any purpose if the court finds: (1) that the whether a officer of a whether a
witness is dead; or (2) that the witness resides at distance more party or not party. party or not,
than one hundred (100) kilometers from the place of trial or who is dead,
hearing, or is out of the Philippines, unless it appears that his not bound by
absence was procured by the party offering the deposition; or a subpoena,
(3) that the witness is unable to attend or testify because of age, incapacitated
sickness, infirmity, or imprisonment; or (4) that the party by age, sick,
offering the deposition has been unable to procure the infirm, or
attendance of the witness by subpoena; or (5) upon application imprisoned,
and notice, that such exceptional circumstances exist as to make or unable to
it desirable, in the interest of justice and with due regard to the attend
importance of presenting the testimony of witnesses orally in despite being
open court, to allow the deposition to be used. (Emphasis subpoenaed.
supplied) Use of The The deposition The
Deposition deposition may be used deposition
The difference between the taking of depositions and the use of may be used by an may be used
depositions taken is apparent in Rule 23, which provides by ANY PARTY ADVERSE by ANY PARTY
separate sections to govern them. Jurisprudence has also to impeach PARTY for any for any
discussed the importance of this distinction and its implications. the testimony purpose, purpose, but
The availability of the proposed deponent to testify in court of the including logically
does not constitute "good cause" to justify the court's order that deponent as a impeachment. excluding
his deposition shall not be taken. That the witness is unable to witness. impeachment
attend or testify is one of the grounds when the deposition of a as the witness
witness may be used in court during the trial. But the same cannot testify
reason cannot be successfully invoked to prohibit the taking of in court.
his deposition. Need for The deponent The deponent A deposition
Testimony must be need not be taken under
The right to take statements and the right to use them in court in Court subsequently presented so paragraph [c]
have been kept entirely distinct. The utmost freedom is allowed presented as that any can be used
in taking depositions; restrictions are imposed upon their use. witness in admission as a
As a result, there is accorded the widest possible opportunity for court to serve contained in substitute for
knowledge by both parties of all the facts before the trial. Such the purpose of the deposition oral
of this testimony as may be appropriate for use as a substitute impeachment. may be used testimony.
for viva voce examination may be introduced at the trial; the against him.
remainder of the testimony, having served its purpose in Any admission
revealing the facts to the parties before trial, drops out of the embodied in
judicial picture. the deposition
is evidence per
Under the concept adopted by the new Rules, the deposition se.
serves the double function of a method of discovery —with use
on trial not necessarily contemplated — and a method (d) If only part of a deposition is offered in evidence by a party, the
of presenting testimony. Accordingly, no limitations other than adverse party may require him or her to introduce all of it which
relevancy and privilege have been placed on the taking of is relevant to the part introduced, and any party may introduce
depositions, while the use at the trial is subject to any other parts.
circumscriptions looking toward the use of oral testimony
wherever practicable. Paragraph [d] simply means that no party may limit the full use of
a deposition simply because only some part of it is favorable to him.
The rules and jurisprudence support greater leeway in allowing The rule allows the following remedies available to the adverse
the parties and their witnesses to be deposed in the interest of party:
collecting information for the speedy and complete disposition 1.) To require the proponent to introduce all of the
of cases. deposition relevant to the part introduced;
2.) To introduce any other parts himself.
Rule 23, Section 4(c)(2) of the Rules of Court, which was invoked
by respondent, governs the use of depositions taken. This allows Section 5. Effect of substitution of parties. - Substitution of
the use of a deposition taken when a witness is "out of the parties does not affect the right to use depositions previously
Philippines." taken; and, when an action has been dismissed and another
action involving the same subject is afterward brought between
the same parties or their representatives or successors in
COMPARATIVE TABLE REGARDING USES OF DEPOSITIONS interest, all depositions lawfully taken and duly filed in the

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
former action may be used in the latter as if originally taken
therefor. (5)
IMMUTABILITY OF DEPOSITIONS
Section 5 provides in substance that a deposition, once lawfully
taken, is immutable, for lack of a better term. A deposition may
thus be used notwithstanding:
1. The substitution of parties;
2. The dismissal of the action and the subsequent filing of
another action involving the same subject between the
same parties or their representatives or successors in
interest.
Hence, all depositions lawfully taken and duly filed in the former
action may be used in the latter as if originally taken therefor.
Section 6. Objections to admissibility. - Subject to the provisions
of Section 29 of this Rule, objections may be made at the trial or
hearing to receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of the evidence
if the witness were then present and testifying. (6)
SANTAMARIA versus CLEARY
G.R. No. 197122, June 15, 2016
In any case, Rule 23 of the Rules of Court still allows for
objections to admissibility during trial. The difference between
admissibility of evidence and weight of evidence has long been
laid down in jurisprudence. These two are not to be equated.
Admissibility considers factors such as competence and
relevance of submitted evidence. On the other hand, weight is
concerned with the persuasive tendency of admitted evidence.
The pertinent sections of Rule 23 on admissibility are:
SEC. 6. Objections to admissibility. - Subject to the
provisions of section 29 of this Rule, objection may be
made at the trial or hearing to receiving in evidence
any deposition or part thereof for any reason which
would require the exclusion of the evidence if the
witness were then present and testifying.
SEC. 29. Effect of errors and irregularities in
depositions XXX
(c) As to competency and relevancy of evidence. -
Objections to the competency of a witness or the
competency, relevancy (sic), 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.
As regards weight of evidence, "the admissibility of the
deposition does not preclude the determination of its probative
value at the appropriate time." In resorting to depositions,
respondent takes the risk of not being able to fully prove his
case.
Section 7. Effect of taking depositions. – A party shall not be
deemed to make a person his or her own witness for any
purpose by taking his or her deposition. (7a)
9
NO ESTOPPEL
A party cannot be estopped by resorting to depositions as a mode
of discovery. Since it is precisely a mode of discovery, a party who
discovers nothing useful or favorable, through the deposition of a
person, is not bound to present the said deponent as a witness. Had
the rule been otherwise, the law will in effect penalize resort to the
modes of discovery.
Take note, however, that there is no prohibition on the part of the
adverse party to use the deposition against the party who applied
for its taking or to make the deponent his witness.
Section 8. Effect of using depositions. - The introduction in
evidence of the deposition or any part thereof for any purpose
other than that of contradicting or impeaching the deponent
makes the deponent the witness of the party introducing the
deposition, but this shall not apply to the use by an adverse party
of a deposition as described in paragraph (6) of Section 4 of this
Rule. (8)
USE, NOT TAKING, OF DEPOSITION MAKES A DEPONENT A
PARTY'S WITNESS
Simply taking a person's deposition does not make him the party's
witness. However, once the deposition is offered in court, the
deponent becomes the party or proponent's witness.
By way of exception, offering a deposition still does not make the
deponent a party's witness:
1. When the deposition is offered to contradict or impeach the
deponent as witness;
2. When the deposition of the adverse party is the one offered.
By way of exception, offering a deposition still does not make the
deponent a party’s witness:
1. When the deposition is offered to contradict or impeach
the deponent as witness;
2. When the deposition of the adverse party is the one
offered.
FORTUNE CORPORATION v. COURT OF APPEALS
G.R. No. 108119 | January 19, 1994
HELD: The right to take statements and the right to use them in
court have been kept entirely distinct. The utmost freedom is
allowed in taking depositions, restrictions are imposed upon
their use. As a result, there is accorded the widest possible
opportunity for knowledge by both parties of all the facts before
the trial. Such of this testimony as may be appropriate for use as
a substitute for viva voce examination may be introduced at the
trial; the remainder of the testimony, having served its purpose
in revealing the facts to the parties before trial, drops out of the
judicial picture.
Under the concept adopted by the new Rules, the deposition
serves the double function of a method of discovery - with use
on trial not necessarily contemplated - and a method of
presenting testimony. Accordingly, no limitations other than
relevancy and privilege have been placed on the taking of
depositions, while the use at the trial is subject to
circumscriptions looking toward the use of oral testimony
wherever practicable.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Section 9. Rebutting deposition. – At the trial or hearing any
party may rebut any relevant evidence contained in a deposition
whether introduced by him or her or by any other party.
Section 10. Persons before whom depositions may be taken
within the Philippines. – Within the Philippines depositions may
be taken before any judge, notary public, or the person referred
in Section 14 hereof.
BEFORE WHOM TAKEN WITHIN THE PHILIPPINES (DEPOSITIONS
PENDING ACTION)
Within the Philippines, a deposition need not be taken before a
judge, although it may be taken before one. It may also be taken
before a notary public (Sec. 10, Rule 23, Rules of Court) or before
any person authorized to administer oaths if the parties so stipulate
in writing (Sec. 14, Rule 23, Rules of Court). Examples of other
persons authorized to administer oaths can be found in the Revised
Administrative Code of 1987, as follows:
Section 41. Officers Authorized to Administer Oath. –
The following officers have general authority to
administer oaths: President; Vice-President; Members
and Secretaries of both Houses of the Congress;
Members of the Judiciary; Secretaries of Departments,
provincial governors and lieutenant-governors, city
mayors, municipal mayors; bureau directors, regional
directors; clerks of courts, registrars of deeds; other
civilian officers in the public service of the government
of the Philippines whose appointments are vested in the
President and are subject to confirmation by the
Commission on Appointments; all other constitutional
officers, and notaries public
Take note of Section 14:
Section 14. Stipulations regarding taking of
depositions. – If the parties so stipulate in writing,
depositions may be taken before any person authorized
to administer oaths, at any time or place, in accordance
with these Rules and when so taken may be used like
other depositions.
This provision applies also to depositions taken outside the
Philippines.
Section 11. Persons before whom depositions may be taken in
foreign countries. – In a foreign state or country, depositions
may be taken (a) on notice before a secretary of embassy or
legation, consul general, consul, vice-consul, or consular agent
of the Republic of the Philippines; (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.
BEFORE WHOM TAKEN (DEPOSITIONS PENDING ACTION)
OUTSIDE THE PHILIPPINES
Outside the Philippines, a deposition may be taken before (a) a
secretary of an embassy or legation, consul general, consul, vice-
consul, or consular agent of the Republic of the Philippines (Sec. 11,
Rule 23, Rules of Court); (b) such person or officer as may be
appointed by commission or letters rogatory; or (c) a person
10
authorized to administer oaths by written stipulation of the parties
(Sec. 14, Rule 23, Rules of Court)
Section 12. Commission or letters rogatory. – A commission or
letters rogatory shall be issued only when necessary or
convenient, on application and notice, and on such terms, and
with such direction as are just and appropriate. Officers may be
designated in notices or commissions either by name or
descriptive title and letters rogatory may be addressed to the
appropriate judicial authority in the foreign country.
DISTINCTIONS BETWEEN LETTERS ROGATORY AND
COMMISSIONS
LETTER ROGATORY COMMISSION
Letters rogatory are requests Commissions are directives to
to foreign tribunals. officials of the issuing
jurisdiction.
A letter rogatory is a request A commission is an instrument
to a foreign court to give its issued by a court of justice, or
aid, backed by its power, to other competent tribunal,
secure desired information. directed to a magistrate by his
official designation or to an
individual by name,
authorizing him to take the
depositions of the witnesses
named therein.
In letters rogatory, the Commissions are taken in
methods of procedure are accordance with the rules laid
under the control of the down by the court issuing the
foreign tribunal. commission.
PFEGER DULAY v. DULAY
G.R. No. 158857 | November 11, 2005
FACTS: In a complaint for recovery of his bank deposit with
prayer for a writ of attachment and damages, Rodrigo S. Dulay,
a naturalized American citizen, alleged that upon his petition
sometime in October of 1996, his brother Godofredo S. Dulay,
Sr. and nephew Pfeger R. Dulay immigrated to the United States
of America. Having nurtured affection, love and trust for his
nephew Pfeger, Rodrigo opened a trust account with the Bank
of Boston on 27 January 1997 with a deposit of Two Hundred
Thirty Thousand U.S. Dollars ($230,000.00), naming Pfeger as
trustee thereof. Pfeger emptied the account. Rodrigo filed a
petition for the issuance of letters rogatory in order to get the
depositions of several witnesses residing abroad through the
Clerk of Court of Boston, Ma., USA. Petitioners, on the other
hand, moved to be allowed to file cross-examination questions
to respondent's written interrogatories, which the trial court
granted.
Meanwhile, petitioners filed a motion to dismiss the complaint
on the ground of failure to prosecute. This was however denied
by the trial court, which instead allowed Rodrigo to complete his
depositions. As it turned out, however, the depositions could
not be taken before the Clerk of Court of Massachusetts, but
were taken instead before a notary public in New York.
On 2 February 2000, Rodrigo submitted to the trial court his
answers to the interrogatories and cross interrogatories of
petitioners given before a notary public in the United States.
Thereafter, petitioners filed their Motion Reiterating Motion to
Dismiss Dated July 10, 2000, which the trial court denied in its
28 September 2000 Order. In the same Order, the trial court

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
directed respondent to have the written and cross
interrogatories taken by the notary public authenticated by the
consulate. Thus, respondent filed a motion to withdraw the
answers so that he could have them authenticated by a
Philippine consul in the United States.
On 10 January 2001, petitioners filed an Omnibus Motion,
praying that the written interrogatories be declared
inadmissible and reiterating their prayer for the dismissal of the
complaint. The lower court denied the motion on 20 February
2001, at the same time directing the archival of the case while
waiting for the documents from the United States. According to
the trial court, the dismissal of the case is improper considering
that Rodrigo had already commenced presenting his evidence
and that it is mandated to hear the evidence on the
counterclaims of the petitioners. Anent the objection to the
admission of the answers to the written interrogatories, the trial
court stated that the deposition taken before the Notary Public
from New York, whose authority was duly certified by the
Philippine Consul in New York, substantially complied with the
Rules of Court.
In their petition for review, petitioners argue that the Court of
Appeals erred when it refused to dismiss the case at the trial
court level despite respondent's failure to prosecute his case
with reasonable diligence. According to petitioners, the major
delays in the litigation of the case were caused by respondent's
failure to send on time the needed documents to the trial court.
In addition, petitioners allege that contrary to the ruling of the
Court of Appeals the documents submitted by respondent were
not taken in substantial compliance with the directive of the trial
court itself but in violation of Sections 11, 12, and 14, Rule 23 of
the Rules of Court.
HELD: While the letters rogatory issued by the trial court
specifically directed the Clerk of Court of Boston to take the
depositions needed in the case, it became impossible to follow
the directive since the Clerk of Court of Boston merely brushed
it aside and refused to cooperate. Respondent cannot be faulted
for the resultant delay brought about by this circumstance.
Neither can the trial court be faulted for allowing the admission
of the depositions taken not in strict adherence to its original
directive, nor for directing the petitioner to have the depositions
authenticated. Obviously, it was not within the trial court's
power, much less the respondent's to force the Clerk of Court of
Boston to have the deposition taken before it. It would be
illogical and unreasonable to expect respondent to comply with
the letters rogatory without the cooperation of the very
institution or personality named in the letters rogatory and
requested to examine the witnesses. After all, while a court had
the authority to entertain a discovery request, it is not required
to provide judicial assistance thereto. This reality was
recognized by the trial court when it ordered respondent to
have the questioned depositions authenticated by the
Philippine consulate. Indeed, refusing the allowance of the
depositions in issue would be going directly against the purpose
of taking the depositions in the first place, that is, the disclosure
of facts which are relevant to the proceedings in court.
More importantly, the Court finds that respondent substantially
complied with the requirements for depositions taken in foreign
countries.
11
In our jurisdiction, depositions in foreign countries may be
taken: (a) on notice before a secretary of embassy or legation,
consul general, consul, vice consul, or consular agent of the
Republic of the Philippines; (b) before such person or officer as
may be appointed by commission or under letters rogatory; or
(c) before any person authorized to administer oaths as
stipulated in writing by the parties. While letters rogatory are
requests to foreign tribunals, commissions are directives to
officials of the issuing jurisdiction.
Leave of court is not required when the deposition is to be taken
before a secretary of embassy or legation, consul general,
consul, vice-consul or consular agent of the Republic of the
Philippines and the defendant's answer has already been
served. However, if the deposition is to be taken in a foreign
country where the Philippines has no secretary of embassy or
legation, consul general, consul, vice consul or consular agent, it
may be taken only before such person or officer as may be
appointed by commission or under letters rogatory.
In the instant case, the authentication made by the consul was
a ratification of the authority of the notary public who took the
questioned depositions. The deposition was, in effect, obtained
through a commission, and no longer through letters rogatory.
It must be noted that this move was even sanctioned by the trial
court by virtue of its Order dated 28 September 2000. With the
ratification of the depositions in issue, there is no more
impediment to their admissibility.
Besides, the allowance of the deposition can not be said to have
caused any prejudice to the adverse party. They were given the
opportunity to cross-examine the witnesses through their cross-
interrogatories, which were in turn answered by the deponents.
Save for the complaint of delay in the proceedings, petitioners
were unable to point out any injury they suffered as a result of
the trial court's action.
The ends of justice are reached not only through the speedy
disposal of cases, but more importantly, through a meticulous
and comprehensive evaluation of the merits of the case. The
parties' right to be given full opportunity to ventilate their cases
should not be hindered by a strict adherence to technicalities.
After all, as this Court has so often enunciated, rules of
procedure are not inflexible tools designed to hinder or delay,
but to facilitate and promote the administration of justice. A
strict and rigid application of rules, resulting in technicalities that
tend to frustrate rather than promote substantial justice, must
be avoided.
COMMISSION AND LETTERS ROGATORY DEFINED
DASMARINAS GARMENTS, INC. v. REYES
G.R. No. 108229 | August 24, 1993
HELD: A commission may be defined as "(a)n instrument issued
by a court of justice, or other competent tribunal, to authorize a
person to take depositions, or do any other act by authority of
such court or tribunal" (Feria, J., Civil Procedure, 1969 ed., p.
415, citing Cyclopedic Law Dictionary, p. 200). Letters rogatory,
on the other hand, may be defined as "(a)n instrument sent in
the name and by the authority of a judge or court to another,
requesting the latter to cause to be examined, upon
interrogatories filed in a cause pending before the former, a
witness who is within the jurisdiction of the judge or court to

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
whom such letters are addressed" (Feria, J., op. cit., citing
Cyclopedic Law Dictionary, p. 653). Section 12, Rule 24 just
quoted states that a commission is addressed to "officers ...
designated ... either by name or descriptive title," while letters
rogatory are addressed to some "appropriate judicial authority
in the foreign state." Noteworthy in this connection is the
indication in the Rules that letters rogatory may be applied for
and issued only after a commission has been "returned
unexecuted" as is apparent from Form 21 of the "Judicial
Standard Forms" appended to the Rules of Court, which requires
the inclusion in a "petition for letters rogatory" of the following
paragraph, viz.:
XXX XXX XXX
3. A commission issued by this Court on the
________ day of____ ,19_, to take the testimony of
(here name the witness or witnesses) in (here name
the foreign country in which the testimony is to be
taken), before _____________ (name of officer), was
returned unexecuted by _____________ on the
ground that _____________ all of which more fully
appears from the certificate of said _____________
to said commission and made a part hereof by
attaching it hereto (or state other facts to show
commission is inadequate or cannot be executed)
(emphasis supplied).
CAN DEPOSITION TAKING UNDER SECTION 12 TAKE PLACE IN A
COUNTRY NOT RECOGNIZED BY THE PHILIPPINES?
DASMARINAS GARMENTS, INC. v. REYES
G.R. No. 108229 | August 24, 1993
HELD: Petitioner would however prevent the carrying out of the
commission on various grounds. The first is that the deposition-
taking will take place in "a foreign jurisdiction not recognized by
the Philippines in view of its 'one-China policy."" This is
inconsequential. What matters is that the deposition is taken
before a Philippine official acting by authority of the Philippine
Department of Foreign Affairs and in virtue of a commission duly
issued by the Philippine Court in which the action is pending, and
in accordance, moreover, with the provisions of the Philippine
Rules of Court pursuant to which opportunity for cross-
examination of the deponent will be fully accorded to the
adverse party.
APPLICABILITY OF RULE 23 TO CRIMINAL CASES; WHEN
DISCOVERY NOT VIOLATIVE OF RIGHT TO CONFRONTATION
PEOPLE v. SERGIO
G.R. No. 240053 | October 9, 2019
FACTS: Mary Jane Veloso, Cristina Sergio and Julius Lacanilao
were friends and Mary Jane Veloso. neighbors in Talavera,
Nueva Ecija. Taking advantage of her dire situation and
susceptibility, Cristina and Julius offered Mary Jane a job as a
domestic helper in Malaysia. Cristina gave Mary Jane her plane
ticket as well as a luggage to bring on her trip. She then asked
Cristina why the luggage was heavy but the latter simply replied
that because it was new. The luggage was the same bag she used
on her trip to Indonesia. It was only after she was apprehended
at the airport when Mary Jane realized that it contained
prohibited drugs.
12
The Philippine Government requested the Indonesian
Government to suspend the scheduled execution of Mary Jane.
It informed the Indonesian Government that the recruiters and
traffickers of Mary Jane were already in police custody, and her
testimony is vital in the prosecution of Cristina and Julius. On
April 28, 2015, or a few hours before the scheduled execution of
Mary Jane, President Widodo of Indonesia granted her an
indefinite reprieve as he received reports about the on-going
legal proceedings in the Philippines with respect to the case of
Mary Jane, and that her recruiters were already in police
custody.
The Indonesian authorities also allowed the Philippines' request
to take Mary Jane's testimony but imposed the following
conditions:
(a) Mary Jane shall remain in detention in Yogyakarta, Indonesia;
(b) No cameras shall be allowed;
(c) The lawyers of the parties shall not be present; and
(d) The questions to be propounded to Mary Jane shall be in
writing.
Thereafter, the State filed a "Motion for Leave of Court to Take
the Testimony of Complainant Mary Jane Veloso by Deposition
Upon Written Interrogatories." It posited that the taking of Mary
Jane's testimony through the use of deposition upon written
interrogatories is allowed under Rule 23 of the Revised Rules of
Court because she is out of the country and will not be able to
testify personally before the court due to her imprisonment.
Cristina and Julius objected to the motion asserting that the
deposition should be made before and not during the trial. The
depositions under Rules 23 and 25 of the Rules of Court are not
designed to replace the actual testimony of the witness in open
court and the use thereof is confined only in civil cases. They
further argued that such method of taking testimony will violate
their right to confront the witness, Mary Jane, or to meet her
face to face as provided under Section 14(2) of the 1987
Constitution. The RTC granted the prosecution's motion. The CA,
however, reversed the RTC.
ISSUES: (1) Does Rule 23 apply to criminal cases?
(2) Will allowing deposition of Mary Jane violate the
constitutional right of the accused to confront
witnesses?
HELD: Under Section 15, Rule 119 of the revised Rules of
Criminal Procedure, in order for the testimony of the
prosecution witness be taken before the court where the case is
being heard, it must be shown that the said prosecution witness
is either: (a) too sick or infirm to appear at the trial as directed
by the order of the court, or; (6) has to leave the Philippines with
no definite date of returning.
Surely, the case of Mary Jane does not fall under either category.
Therefore, a liberal interpretation of the Rules should be
allowed. We should not silence Mary Jane and deny her and the
People of their right to due process by presenting their case
against the said accused. By the CA's belief that it was rendering
justice to the respondents, it totally forgot that it in effect
impaired the rights of Mary Jane as well as the People. By not
allowing Mary Jane to testify through written interrogatories,
the Court of Appeals deprived her of the opportunity to prove

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
her innocence before the Indonesian authorities and for the
Philippine Government the chance to comply with the
conditions set for the grant of reprieve to Mary Jane.
Interestingly, nowhere in the present Rules on Criminal
Procedure does it state how a deposition, of a prosecution
witness who is at the same time convicted of a grave offense by
final judgment and imprisoned in a foreign jurisdiction, may be
taken to perpetuate the testimony of such witness. The Rules, in
particular, are silent as to how to take a testimony of a witness
who is unable to testify in open court because he is imprisoned
in another country.
Depositions, however, are recognized under Rule 23 of the Rules
on Civil Procedure. Although the rule on deposition by written
interrogatories is inscribed under the said Rule, the Court holds
that it may be applied suppletorily in criminal proceedings so
long as there is compelling reason. Verily, in light of the unusual
circumstances surrounding the instant case, the Court sees no
reason not to apply suppletorily the provisions of Rule 23 of the
Rules on Civil Procedure in the interest of substantial justice and
fairness. Hence, the taking of testimony of Mary Jane through a
deposition by written interrogatories is in order.
The deposition by written interrogatories is pursuant to Mary
Jane's right to due process
Furthermore, to disallow the written interrogatories will curtail
Mary Jane's right to due process. The benchmark of the right to
due process in criminal justice is to ensure that all the parties
have their day in court. It is in accord with the duty of the
government to follow a fair process of decision-making when it
acts to deprive a person of his liberty. But just as an accused is
accorded this constitutional protection, so is the State entitled
to due process in criminal prosecutions. It must likewise be given
an equal chance to present its evidence in support of a charge.
No violation of the constitutional right to confrontation of a
witness
Similarly, the deposition by written interrogatories will not
infringe the constitutional right to confrontation of a witness of
Cristina and Julius. The right to confrontation is part of due
process not only in criminal proceedings but also in civil
proceedings as well as in proceedings in administrative tribunals
with quasi-judicial powers. It has a two-fold purpose: (1)
primarily, to afford the accused an opportunity to test the
testimony of the witness by cross-examination; and (2)
secondarily, to allow the judge to observe the deportment of the
witness.
True, Cristina and Julius have no opportunity to confront Mary
Jane face to face in light of the prevailing circumstance.
However, the terms and conditions laid down by the trial court
ensure that they are given ample opportunity to cross examine
Mary Jane by way of written interrogatories so as not to defeat
the first purpose of their constitutional right. To recall, the trial
court requires Cristina and Julius, through their counsel, to file
their comment and may raise objections to the proposed
questions in the written interrogatories submitted by the
prosecution. The trial court judge shall promptly rule on the
objections. Thereafter, only the final questions would be asked
by the Consul of the Philippines in Indonesia or his designated
representative. The answers of Mary Jane to the propounded
13
questions must be written verbatim, and a transcribed copy of
the same would be given to the counsel of the accused who
would, in turn, submit their proposed cross interrogatory
questions to the prosecution. Should the prosecution raised any
objection thereto, the trial court judge must promptly rule on
the same, and the final cross interrogatory questions for the
deposition of Mary Jane will then be conducted. Mary Jane's
answers in the cross interrogatory shall likewise be taken in
verbatim and a transcribed copy thereof shall be given to the
prosecution.
The second purpose of the constitutional right to confrontation
has likewise been upheld. As aptly stated in the terms and
conditions for the taking of deposition, the trial court judge will
be present during the conduct of written interrogatories on
Mary Jane.
Indubitably, the constitutional rights of Cristina and Julius are
equally safeguarded. The parameters laid down by the trial court
are sufficient in detail ensuring that Mary Jane will give her
testimony under oath to deter lying by the threat of perjury
charge. She is still subjected to cross-examination so as to
determine the presence of any falsehood in her testimony.
Lastly, the guidelines enable the trial court judge to observe her
demeanor as a witness and assess her credibility.
Section 13. Disqualification by interest. — No deposition shall
be taken before a person who is a relative within the sixth
degree of consanguinity or affinity, or employee or counsel of
any of the parties, or who is a relative within the same degree,
or employee of such counsel; or who is financially interested in
the action.
NOTE
Under Section 13, there are certain individuals who cannot act as
deposition officers due to their interest in the case or relationship
to the parties or counsel. Thus a person who is a relative within the
sixth degree of consanguinity or affinity or employee or counsel of
any of the parties cannot take the deposition. A deposition cannot
also be taken before a relative within the same degree, or
employee of such counsel. Finally, anyone who is financially
interested in the action cannot be a deposition officer.
Section 15. Deposition upon oral examination; notice; time and
place. — 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. (15a)
Section 16. Orders for the protection of parties and deponents.
— After notice is served for taking a deposition by oral
examination, upon motion seasonably made by any party or by
the person to be examined and for good cause shown, the court
in which the action is pending may make the following orders:
(a) That the deposition shall not be taken;

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
(b) That the deposition may be taken only at some
designated place other than that stated in the
notice;
(c) That the deposition may be taken only on written
interrogatories;
(d) That certain matters shall not be inquired into;
(e) That the scope of the examination shall be held with
no one present except the parties to the action and
their officers or counsel;
(f) That after being sealed the deposition shall be
opened only by order of the court;
(g) That secret processes, developments, or research
need not be disclosed; or
(h) That the parties shall simultaneously file specified
documents or information enclosed in sealed
envelopes to be opened as directed by the court.
The court may make any other order which justice requires to
protect the party or witness from annoyance, embarrassment,
or oppression. (16a)
AVAILABILITY OF DEPONENT TO TESTIFY: NOT A "GOOD CAUSE"
TO ORDER THAT HIS DEPOSITION SHALL NOT BE TAKEN
HYATT INDUSTRIAL v. LEY CONSTRUCTION
GR No. 147143 |March 10, 2006
FACTS: The RTC cancelled scheduled depositions on the ground
of delay and that the taking of depositions would cause
unnecessary duplicity as the intended deponents shall also be
called as witnesses during trial.
RULING: While it is true that depositions may be disallowed by
trial courts if the examination is conducted in bad faith; or in
such a manner as to annoy, embarrass, or oppress the person
who is the subject of the inquiry, or when the inquiry touches
upon the irrelevant or encroaches upon the recognized domains
of privilege, such circumstances, however are absent in the case
at bar.
The RTC cites the delay in the case as reason for canceling the
scheduled depositions. While speedy disposition of cases is
important, such consideration however should not outweigh a
thorough and comprehensive evaluation of cases, for the ends
of justice are reached not only through the speedy disposal of
cases but more importantly, through a meticulous and
comprehensive evaluation of the merits of the case. Records
also show that the delay of the case is not attributable to the
depositions sought by LCDC but was caused by the many
pleadings filed by all the parties including petitioners herein.
The argument that the taking of depositions would cause
unnecessary duplicity as the intended deponents shall also be
called as witnesses during trial, is also without merit.
The case of Fortune Corp. v. Court of Appeals, G.R. No. 108119,
January 19, 1994, which already settled the matter, explained
that:
The availability of the proposed deponent to testify in
court does not constitute "good cause" to justify the
court's order that his deposition shall not be taken.
That the witness is unable to attend or testify is one of
the grounds when the deposition of a witness may be
used in court during the trial. But the same reason
14
cannot be successfully invoked to prohibit the taking
of his deposition.
SANTAMARIA v. CLEARY
G.R. No. 197122 | June 15, 2016
HELD: Rule 23, Section 16 of the Rules of Court is on orders for
the protection of parties and deponents from annoyance,
embarrassment, or oppression. XXX The provision includes a full
range of protective orders, from designating the place of
deposition, limiting those in attendance, to imposing that it be
taken through written interrogatories. At the extreme end of
this spectrum would be a court order that completely denies the
right to take deposition. This is what the trial court issued in this
case.
While Section 16 grants the courts power to issue protective
orders, this grant involves discretion on the part of the court,
which "must be exercised, not arbitrarily, capriciously or
oppressively, but in a reasonable manner and in consonance
with the spirit of the law, to the end that its purpose may be
attained."
A plain reading of this provision shows that there are two (2)
requisites before a court may issue a protective order: (1) there
must be notice; and (2) the order must be for good cause shown.
In Fortune Corporation v. Court of Appeals, this Court discussed
the concept of good cause as used in the rules:
The matter of good cause is to be determined by the
court in the exercise of judicial discretion. Good cause
means a substantial reason—one that affords a legal
excuse. Whether or not substantial reasons exist is for
the court to determine, as there is no hard and fast
rule for determining the question as to what is meant
by the term "for good cause shown."
The requirement, however, that good cause be shown
for a protective order puts the burden on the party
seeking relief to show some plainly adequate reasons
for the order. A particular and specific demonstration
of facts, as distinguished from conclusory statements,
is required to establish good cause for the issuance of
a protective order. What constitutes good cause
furthermore depends upon the kind of protective
order that is sought.
In light of the general philosophy of full discovery of relevant
facts and the board statement of scope in Rule 24, and in view
of the power of the court under Sections 16 and 18 of said Rule
to control the details of time, place, scope, and financing for the
protection of the deponents and parties, it is fairly rare that it
will be ordered that a deposition should not be taken at all. All
motions under these subparagraphs of the rule must be
supported by "good cause" and a strong showing is required
before a party will be denied entirely the right to take a
deposition. A mere allegation, without proof, that the
deposition is being taken in bad faith is not a sufficient ground
for such an order. Neither is an allegation that it will subject the
party to a penalty or forfeiture. The mere fact that the
information sought by deposition has already been obtained
through a bill of particulars, interrogatories, or other
depositions will not suffice, although if it is entirely repetitious a

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
deposition may be forbidden. The allegation that the deponent
knows nothing about the matters involved does not justify
prohibiting the taking of a deposition, nor that whatever the
witness knows is protected by the "work product doctrine," nor
that privileged information or trade secrets will be sought in the
course of the examination, nor that all the transactions were
either conducted or confirmed in writing.
Section 17. Record of examination; oath; objections. — The
officer before whom the deposition is to be taken shall put the
witness on oath and shall personally, or by some one acting
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. (17a)
NOTE
Answers to depositions not objected to cannot be objected to in
court during the trial, unless the objection is based on a new ground
which only come up after the deposition.
Section 18. Motion to terminate or limit examination. — At any
time during the taking of the deposition, on motion or petition
of any party or of the deponent and upon a showing that the
examination is being conducted in bad faith or in such manner
as unreasonably to annoy, embarrass, or oppress the deponent
or party, the court in which the action is pending or the Regional
Trial Court of the place where the deposition is being taken may
order the officer conducting the examination to cease forthwith
from taking the deposition, or may limit the scope and manner
of the taking of the deposition, as provided in Section 16 of this
Rule. If the order made terminates the examination, it shall be
resumed thereafter only upon the order of the court in which
the action is pending. Upon demand of the objecting party or
deponent, the taking of the deposition shall be suspended for
the time necessary to make a notice for an order. In granting or
refusing such order, the court may impose upon either party or
upon the witness the requirement to pay such costs or expenses
as the court may deem reasonable. (18)
LIMITATIONS
Given the liberal policy of the law on the modes of discovery, the
Courts ought to allow and encourages their use by litigants.
However, this liberal treatment is not without limitation. Thus,
deposition taking will be disallowed when it can be shown that:
1. The examination is being conducted in bad faith; or
2. The examination is being conducted in such a manner as
to annoy, embarrass, or oppress the person subject to the
inquiry; or
3. The inquiry touches upon the irrelevant; or
4. The inquiry encroaches upon the recognized domains of
privilege.
15
Section 19. Submission to witness; changes; signing. — 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 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. (19a)
NOTE
After the deposition of the deponent is taken, the deposition officer
shall submit the deposition to the deponent for examination. He
may change his answers but he must state the reason for the
change. And he signs it, unless the parties by stipulation waive the
signing, or the witness is ill, or cannot be found or refuses to sign.
In the latter cases, the deposition will be signed by the deposition
officer.
Section 20. Certification and filing by officer. — The officer shall
certify on the deposition that the witness was duly sworn to by
him or her and that the deposition is a true record of the
testimony given by the witness. He or she shall then securely
seal the deposition in an envelope indorsed with the title of the
action and marked "Deposition of (here insert the name of
witness)" and shall promptly file it with the court in which the
action is pending or send it by registered mail to the clerk
thereof for filing. (20a)
GEORG v. HOLY TRINITY COLLEGE, INC.
G.R. No. 190408 | July 20, 2016
HELD: First, petitioner questions the admission of the alleged
deposition conducted upon Sr. Medalle when the same was not
presented in evidence by respondent's counsel. Petitioner adds
that there was no order from the trial court allowing such
deposition. Petitioner also claims that the requisite certification
that should accompany the deposition is defective.
Between the two parties, we are inclined to give credence to
petitioner. First, the trial court did not give probative weight to
the deposition of Sr. Medalle basically stating that respondent's
counsel failed to conform to Section 20, Rule 23 of the Rules of
Court XXX.
Indeed, there is no record of any certification from Notary Public
Romeo Juayno stating that the witness, Sr. Medalle in this case,
was sworn to by him and that the deposition is a true record of
the testimony given by Sr. Medalle. Furthermore, petitioner
correctly noted that respondent's counsel did not seek a leave
of court to conduct a deposition in violation of Section 1, Rule
23 XXX
In Republic of the Phils. v. Sandiganbayan, we held that:

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Depositions pending action may be conducted by oral
examination or written interrogatories, and may be
taken at the instance of any party, with or without
leave of court. Leave of court is not necessary to take
a deposition after an answer to the complaint has
been served. It is only when an answer has not yet
been filed (but jurisdiction has been obtained over any
defendant or over property subject of the action) that
prior leave of court is required. The reason for this is
that before filing of the answer, the issues are not yet
joined and the disputed facts are not clear."
In this case, respondent's counsel filed a Notice of Deposition for
the Taking of Deposition on 28 October 2002. The Answer with
Counterclaim was only filed on 21 February 2005. In this
instance, respondent should have asked for leave of court.
Considering that the trial court has the discretion to decide
whether a deposition may or may not be taken, it follows that it
also has the discretion to disregard a deposition for non-
compliance with the rules.
Section 21. Notice of filing. — The officer taking the deposition
shall give prompt notice of its filing to all the parties. (21)
Section 22. Furnishing copies. — Upon payment of reasonable
charges therefor, the officer shall furnish a copy of the
deposition to any party or to the deponent. (22)
Section 23. Failure to attend of party giving notice. — 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 the 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.
(23a)
Section 24. Failure of party giving notice to serve subpoena. —
If the party giving the notice of the taking of a deposition of a
witness fails to serve a subpoena upon him or her and the
witness because of such failure does not attend, and if another
party attends in person or by counsel because he or she expects
the deposition of that witness to be taken, the court may order
the party giving the 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.
(24a)
Section 25. Deposition upon written interrogatories;
service of notice and of interrogatories. — A party desiring to
take the deposition of any person upon written interrogatories
shall serve them upon every 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-
16
interrogatories upon the party proposing to take the deposition.
(25a)
DEPOSITION UPON WRITTEN INTERROGATORIES
A deposition need not be conducted through an oral examination.
It may be conducted through written interrogatories which shall be
served upon every other party. The party served may also serve
cross-interrogatories upon the party proposing to take the
deposition within ten (10) days from service of the written
interrogatories. The latter may, within five (5) days serve re-direct
interrogatories and within three (3) days the other party may serve
re-cross interrogatories (Sec. 25, Rule 23, Rules of Court). Copies of
all these interrogatories shall be delivered to the officer before
whom the deposition is taken and who shall take the responses and
prepare the record (Sec. 26, Rule 23, Rules of Court).
CROSS-INTERROGATORIES: EQUIVALENT TO CROSS-
EXAMINATION
SAN LUIS v. ROJAS, ET AL.
G.R. No. 159127 | March 3, 2008
HELD: We also find no merit in petitioner's claim that his right to
cross-examine private respondent's witnesses will be curtailed
since petitioner is fully accorded the opportunity for cross-
examination under Section 25, Rule 23 of the Rules of Court, to
wit:
SEC. 25. Depositions upon written interrogatories,
service of notice and of interrogatories. - A party
desiring to take the deposition of any person upon
written interrogatories shall serve them upon every
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)
days thereafter, a party so served may serve cross
interrogatories upon the party proposing to take the
deposition. Within five (5) days thereafter, the latter
may serve re-direct interrogatories upon a party who
has served cross interrogatories. Within three (3) days
after being served with re-direct interrogatories, a
party may serve re-cross interrogatories upon the
party proposing to take the deposition.
Thus, petitioner may submit cross-interrogatories upon private
respondent with sufficient fullness and freedom.
Section 26. 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. (26a)
Section 27. Notice of filing and furnishing copies. —When a
deposition upon interrogatories is filed, the officer taking it shall
promptly give notice thereof to all the parties and may furnish
copies to them or to the deponent upon payment of reasonable
charges therefor. (27)
 17
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

(f) As to manner of preparation. — Errors and irregularities

Section 28. Orders for the protection of parties and deponents.
— After the service of the interrogatories and prior to the taking
of the testimony of the deponent, the court in which the action
is pending, on motion promptly made by a party or a deponent,
and for good cause shown, may make any order specified in
Sections 15, 16 and 18 of this Rule which is appropriate and just
or an order that the deposition shall not be taken before the
officer designated in the notice or that it shall not be taken
except upon oral examination. (28)
in the manner in which the testimony is transcribed or the
deposition is prepared, signed, certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by the officer
under Sections 17, 19, 20 and 26 of this Rules are waived
unless a motion to suppress the deposition or some part
thereof is made with reasonable promptness after such
defect is, or with due diligence might have been,
ascertained. (29a)

PROTECTIVE ORDERS IN DEPOSITIONS UPON WRITTEN

INTERROGATORIES
1. Order to enlarge or shorten the time within which to take the
testimony of the deponent (Section 15);
2. Order that the testimony in answer to the written
interrogatories shall not be taken, etc. (Section 16)
3. Order to terminate or limit the taking of testimony (Section
18);
4. Order that the deposition shall not be taken before the officer
designated (Section 28);
5. Order that the testimony shall not be taken except upon oral
examination (Section 28).

Section 29. Effect of errors and irregularities in depositions. —

(a) As to notice. — All errors and irregularities in the notice

for taking a deposition are waived unless written
objection is promptly served upon the party giving the
notice.

(b) As to disqualification of officer. — 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.

(c) 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.

(d) As to oral examination and other particulars. — 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.

(e) 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.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 24
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
SECTION 1. Depositions before action; petition. —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 filed a verified petition in the
court of the place of the residence of any expected adverse
party. (1a)
DISCUSSION
Why do we need this? For example, you filed a case then maybe you
are dying or maybe during the course of the proceedings you
haven’t reached the presentation of evidence yet, so you are not
available or maybe your witnesses are not available to perpetuate
their testimony. This is your remedy.
There is no limitation as to what is the subject matter of your
deposition as long as it is cognizable in the courts of the Philippines.
How do you ask for deposition? You file a verified petition in the
court of the place of the residence of any expected adverse party.
The basis here is the court of the place of the residence.
How about if supposed or intended case is a real action? Isn’t it in
real action the venue is the place where the property is located?
Yes, but this is not yet the action you are filing. Because what you
want here is only deposition. So where do you file your petition to
take a deposition? The venue would be the residence of any
expected adverse party.
Take note: It is different from the usual civil action. For example in
personal action the venue would be the residence of the plaintiff or
the residence of the defendant at the option of the plaintiff. In here,
petitioner has no option; he has to file it in the court of the place of
the residence of any expected adverse party. When you say verified
petition meaning it has verification.
SECTION. 2. Contents of petition.—The petition shall be
entitled in the name of the petitioner and shall show: (a) that
the petitioner expects to be a party to an action in a court of the
Philippines but is presently unable to bring it or cause it to be
brought; (b) the subject matter of the expected action and his
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. (2a)
DISCUSSION
The rule says, the petition shall be entitled in the name of the
petitioner. Of course, there is a caption because you are filing this
in the court.
Republic of the Philippines
Regional Trial Court
11th Judicial Region
(No branch yet since we still do not know where it will be raffled.)
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The title is NOT:
Juan dela Cruz v. Piolo Pascual
Because there is no case to be filed yet.
So it could be:
In Re: Request for Taking of Deposition
Juan dela Cruz, Petitioner
Or
In the Matter of the Request for the Taking of the Deposition
Pending Action
Juan dela Cruz, Petitioner
Then take note of the contents and the matters that you need to
allege in your petition.
SECTION. 3. Notice and service.—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. At least twenty
(20) calendar days before the date of the hearing, the court shall
cause notice thereof to be served on the parties and prospective
deponents in the manner provided for service of summons. (3a)
DISCUSSION
Here, upon filing of the petition, the petitioner shall serve a notice.
Q: To whom shall it be served?
A: It shall be served 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.
This is different from the Complaint, as an initiatory pleading,
where you don’t need to serve the copy of the complaint to the
adverse party because it is the court through the summons with the
attached copy of the complaint which will be served to the adverse
party.
But under Rule 24, Sec. 3, Petition for the Taking of Deposition
before Action, you have to serve it with the adverse party.
Take note, it is the expected adverse party, NOT the person to
whom you will get the deposition, unless he is also the expected
adverse party. Generally, not to the witness, but the adverse party.
20 days before the date of hearing, the court will notify the parties
and the prospective deponents. It is now the court who will serve
to the prospective deponents or to the witnesses that you want to
depose.
SECTION. 4. Order and examination. —If the court is satisfied
that the perpetuation of the testimony may prevent a failure or
delay of justice, it shall make an order designating or describing
the persons whose deposition may be taken and specifying the
subject matter of the examination and whether the depositions
shall be taken upon oral examination or written interrogatories.
The depositions may then be taken in accordance with Rule 23
before the hearing. (4)
Take note the procedure now is in accordance with rule 23.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
SECTION. 5. Reference to court.—For the purpose of applying
Rule 23 to depositions for perpetuating testimony, each
reference therein to the court in which the action is pending
shall be deemed to refer to the court in which the petition for
such deposition was filed. (5)
SECTION. 6. Use of deposition.—If a deposition to perpetuate
testimony is taken under this Rule, or if, although not so taken,
it would be admissible in evidence, it may be used in any action
involving the same subject matter subsequently brought in
accordance with the provisions of Sections 4 and 5 of Rule 23.
(6)
DISCUSSION
What is the use of deposition under this rule? This is on the premise
that as of now, even if there is still no case pending, you already
take the deposition of this person so that in the future, his
testimony in that deposition can be used. That is why it is termed
“to perpetuate the testimony”.
What is the meaning of the phrase, “is taken under this Rule, or if,
although not so taken, it would be admissible in evidence…”?
Meaning, if you take the deposition of that person in accordance
with Rule 24, or even if you did not follow Rule 24 but under any
under law applicable, that deposition or testimony is still
admissible; that deposition can be used in any action involving the
same subject matter.
For what purpose? It could be in accordance with the provisions of
Sec. 4 and 5, Rule 23.
SECTION. 7. Depositions pending appeal.—If an appeal has
been taken from a judgment of a court, including the Court of
Appeals in proper cases, or before the taking of an appeal if the
time therefor has not expired, the court in which the judgment
was rendered may allow the taking of depositions of witnesses
to perpetuate their testimony for use in the event of further
proceedings in the said court. In such case the party who desires
to perpetuate the testimony may make a motion in the said
court for leave to take the depositions, upon the same notice
and service thereof as if the action was pending therein. The
motion shall state (a) the names and addresses of the persons
to be examined and the substance of the testimony which he 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. (7a)
DISCUSSION
Q: Within what period will you file the motion to take a deposition
pending appeal?
A: Either:
(a) when you already filed an appeal – so when the appeal is
pending, you file the motion; or
(b) before you appeal, if the time has not yet expired
19
Q: What if the period to take an appeal has expired?
A: You cannot file this anymore because the decision of the court is
already final and executory. It could no longer be one pending
appeal.
Form of the Motion – The rule says it is the same as if an action is
pending therein. Under Sec. 1, Rule 23 – ex parte motion.
Remember: what contents of the motion, the names and the
addresses of the persons to be examined, the substance of the
testimony if he or she expects to elicit from each and the reason for
perpetuating their testimony.
What is the use? – same as we discussed in Rule 23 – deposition
pending action
JUDICIAL AFFIDAVIT RULE
There is a need to discuss JAR because somehow, we can relate this.
In fact, there are cases which we will discuss there is this mention
of the rule on mode of discovery and judicial affidavit. They are
discussed in relation to each other.
Section 1. Scope. - (a) This Rule shall apply to all actions,
proceedings, and incidents requiring the reception of evidence
before:
The Metropolitan Trial Courts, the Municipal Trial Courts in
Cities, the Municipal Trial Courts, the Municipal Circuit Trial
Courts, and the Shari' a Circuit Courts but shall not apply to small
claims cases under A.M. 08-8-7-SC;
The Regional Trial Courts and the Shari' a District Courts;
The Sandiganbayan, the Court of Tax Appeals, the Court of
Appeals, and the Shari' a Appellate Courts;
The investigating officers and bodies authorized by the Supreme
Court to receive evidence, including the Integrated Bar of the
Philippine (IBP); and
The special courts and quasi-judicial bodies, whose rules of
procedure are subject to disapproval of the Supreme Court,
insofar as their existing rules of procedure contravene the
provisions of this Rule.
(b) For the purpose of brevity, the above courts, quasi-judicial
bodies, or investigating officers shall be uniformly referred to
here as the "court."
DISCUSSION
Q: In what courts or tribunals does the JAR apply?
A: Section 1. (a) This rule shall apply to all actions, proceedings, and
incidents requiring the reception of evidence xx
Kinds of Evidence:
1. Testimonial
2. Documentary
3. Object
Q: What kind of evidence is referred to?
A: It refers to evidence that requires testimony.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Testimonial evidence – because the judicial affidavit pertains to the
testimony of the witness.
Q: How about documentary evidence? Do we need judicial
affidavits?
A: Well, you cannot also introduce a documentary evidence if that
evidence is not identified by a witness. Necessarily, it also requires
testimonial evidence. Because there should be a witness who shall
testify on the document.
Q: How about Object evidence?
A: Same thing, because there will be a witness who will identify and
testify on this object. What is this evidence all about. What is the
relevance of the object evidence to the case? Although we have the
Res Ipsa Loquitor or the thing speaks for itself but it’s not a literal
application, there has to be somebody who will speak about the
thing so that the thing can speak for itself.
Q: What courts?
1. MeTCs, MTCCs, MTCs, MCTCs, Sharia courts
DISCUSSION
Remember, it will not apply to small claims cases. Why? Because
there is no lawyer in small claims cases and when you have a judicial
affidavit there needs to be a lawyer who will present the witness in
the witness stand and ask the witness to identify the judicial
affidavit then cross examine, then redirect, and then recross. This
does not happen in small claims.
2. RTC
3. Sandiganbayan, Court of Tax Appeals , CA, and the Sharia
Appellate Courts
4. Investigating officers and bodies authorized by the SC to
receive evidence, including the IBP and
5. The special courts and quasi-judicial bodies, whose rules
of procedure are subject to disapproval of the SC, insofar
as their existing rules of procedure contravenes the
provisions of this rule.
For the purpose of brevity, the above courts, quasi-judicial bodies,
or investigating officers shall be uniformly referred to here as the
“court”.
Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of
direct testimonies. –
(a) The parties shall file with the court and serve on the adverse
party, personally or by licensed courier service, not later than
five days before pre-trial or preliminary conference or the
scheduled hearing with respect to motions and incidents, the
following:
The judicial affidavits of their witnesses, which shall take the
place of such witnesses' direct testimonies; and
The parties' documentary or object evidence, if any, which shall
be attached to the judicial affidavits and marked as Exhibits A,
B, C, and so on in the case of the complainant or the plaintiff,
and as Exhibits 1, 2, 3, and so on in the case of the respondent
or the defendant.
20
DISCUSSION
We already mentioned before that in a hearing, and if you are the
lawyer, you need to present your witness. You will conduct direct
examination of your witness, then the opponent will conduct cross-
examination and then you again will conduct re-direct and the
opponent will conduct re-cross.
Under the Judicial Affidavit Rule, the direct examination, should
already be in the form of a judicial affidavit. All the things you need
to ask in court regarding the supposed direct examination of your
witness, you must reduce that in a judicial affidavit.
The judicial affidavit is in a question-and-answer form but just
written.
Q: When are you supposed to file your judicial affidavit?
A: The rule says not later than five days before pre-trial or
preliminary conference or the scheduled hearing with respect to
motions and incidents.
This has been modified already by the 2019 amended rules because
we have already discussed, under the amended rules, if you are the
complainant, your complaint should already attach to it the judicial
affidavit. If you are the defendant, still the same, your answer
should already have the judicial affidavit attached to it or if you’re
filing a counter-claim, a cross-claim, a third or fourth etc party
complaint, your pleading should already be accompanied by the
judicial affidavit.
Q: Are there instances wherein five (5) days before pre-trial is still
applicable?
A: Not later than five (5) days, meaning it should be a maximum of
five (5) days. You can submit it within six (6), seven (7) but not later
than five (5) days before pre-trial.
There are still other incidents, like when you file a motion to dismiss
for example under the rules, the four (4) famous grounds. For
example, it was set for hearing, you should already submit your
judicial affidavit, not later than five (5) days before the date of that
scheduled hearing. Or if you can remember, during pre-trial, you
reserve the testimony of a witness, you reserve the name of a
witness, meaning you have not done any judicial affidavit before
pre-trial, meaning he will testify in the future, that also applies, you
should submit the judicial affidavit of that reserved witness not
later than five (5) days when he is supposed to testify.
In court, you will no longer ask what, where, when, how because
usually, this will be the content of your direct examination.
In the trial, you would only need to ask your witness, if he
remembers having executed a judicial affidavit and of course, he
should say yes. Then, you would ask him:
“okay Mr. Juan dela Cruz, I’m showing to you a judicial affidavit,
executed on August 1, 2019, is this the judicial affidavit that you
were referring to?”,
“Yes ma’am/sir or Yes, Atty.”
“Okay, please go over your judicial affidavit and see if the contents
of this judicial affidavit are the same as the one that you have
executed.”
“Yes ma’am”

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
“Did you read the contents of this judicial affidavit? Do you
understand the contents of this judicial affidavit? Did you
voluntarily execute this judicial affidavit?”
“There are signatures on the first three (3) pages on the left-hand
margin. Whose signature is this?”
“Mine ma’am/sir”
“There is also a signature on the last portion on page 4, whose
signature is this?”
“This is my signature Atty. “
Now, you have already asked the witness to identify his judicial
affidavit.
There are also documents, if you have documentary exhibits, these
documents should also be identified by the witness.
Now, you will ask the witness after he identified the judicial
affidavit you would ask him, “you mentioned in page 1 of your
judicial affidavit about exhibit ‘A’ which is the birth certificate. I’m
showing to you a copy of a birth certificate, is this the same birth
certificate that you mentioned in your judicial affidavit?
“Yes ma’am, that’s the same.”
Every document attached to the judicial affidavit; you have to let
the witness identify that during his supposed direct examination in
court. You will no longer ask what, where, when how, why, it will
only be identification of judicial affidavit and documents attached,
so that is the meaning of Section 2.
(b) Should a party or a witness desire to keep the original
document or object evidence in his possession, he may, after
the same has been identified, marked as exhibit, and
authenticated, warrant in his judicial affidavit that the copy or
reproduction attached to such affidavit is a faithful copy or
reproduction of that original. In addition, the party or witness
shall bring the original document or object evidence for
comparison during the preliminary conference with the
attached copy, reproduction, or pictures, failing which the latter
shall not be admitted. By virtue of the Supreme Court's
authority under Section 5 (5), Article VIII, of the 1987
Constitution to disapprove rules of procedure of special courts
and quasi-judicial bodies.
This is without prejudice to the introduction of secondary
evidence in place of the original when allowed by existing rules.
DISCUSSION
For example, your attachments in your judicial affidavit is a very
important document for the witness like a love letter for his one
true love, of course he would want to keep the original, so the one
you attached in your judicial affidavit is only the photocopy, so
there should be a statement in your judicial affidavit, wherein the
witness warrants that those documents which are identified,
marked and authenticated are the faithful reproduction of the
original, the witness will give that kind of warranty in his judicial
affidavit.
During pre-trial also, the lawyer should bring the original because
during the pre-trial or preliminary conference, you can make
stipulations with the other lawyers that “I have here the original
copy of the love letter, dated February 14, 2019, I also have here
the photocopy. I would like the counsel for the defendant to
stipulate that this photocopy is a faithful reproduction of the
original.”
21
Now the lawyer for the defendant will examine both documents
and then if he sees it is the same, he will say “I will stipulate, your
honor.” in the case the evidence that will be marked by the court is
the photocopy and then because it is already stipulated on as the
faithful reproduction of the original, during trial, the original need
not be brought, the photocopy will be enough.
Q: What if he was also not able to bring the original copy of the
document during pre-trial or preliminary conference?
During trial itself, when the witness will testify, you will bring the
original, and then again, you don’t want to offer the original, then
during that pre-trial, when the witness identifies that love letter,
you will ask the lawyer “Your honor, I would like the counsel for the
defendant to examine and stipulate if this photocopy of the love
letter is faithful reproduction of the original” so if the lawyer for the
defendant says “I stipulate, you honor” again the court will only
mark the photocopy and the original copy will be returned to the
owner, when the formal offer of the exhibits will be done, the
photocopy will already enough, there is no need to attach the
original.
This is without prejudice to the introduction of secondary evidence
in place of the original when allowed by existing rules.
Before this is called the “best evidence rule” now it is called the
“original document rule”.
Q: What if the original was really lost? Does it mean that you
cannot prove your case anymore?
A: You can still prove your case, as long as you establish the reasons
why you cannot present original and why you have to present in
lieu of the original the photocopy, you will learn that in evidence.
Sec. 3. Contents of 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:
1. Show the circumstances under which the witness acquired
the facts upon which he testifies;
2. Elicit from him those facts which are relevant to the issues
that the case presents; and
3. 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; and

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
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.
DISCUSSION
Q: What are the contents of a judicial affidavit?
First, the judicial affidavit must be in a language known to the
witness. If the witness is a Bisaya, the judicial affidavit shall also be
in Bisaya however there should also be an English translation,
because we don’t know if it will reach the Supreme Court and not
all Justice can understand Bisaya so we have to use the official
language.
Letter (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; actually this is already pro forma.
However, you have to be very careful with this because sometimes
there are other lawyers, during cross-examination, just to test the
credibility of the witness will ask “asa man ni gi conduct imohang
examination? Asa man ni gi buhat imong judicial affidavit?” the
witness will answer “sa office sa lawyer.” then the lawyer will ask
“Asa ang office sa lawyer? Unsa ang itsura? Etc.” just to be very
sure that the witness is not lying.
Please remember what the contents of a judicial affidavit are, I will
show you an example of an judicial affidavit.
Sec. 4. 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 the effect that:
He faithfully recorded or caused to be recorded the questions
he asked and the corresponding answers that the witness gave;
and
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 action, including disbarment.
DISCUSSION
A judicial affidavit should also contain a sworn attestation of the
lawyer (the lawyer who conducted the direct examination) which is
the content of the judicial affidavit. This would be the certification
of the lawyer.
Again, careful. The witness should really know his judicial affidavit,
that it was really his statement, that he was not coerced or coached
in his answers. There are some lawyers who will ask “Diba witness
dili ba tinood kanang Judicial Affidavit gi prepare na daan sa imong
lawyer unya imo rang gi pirmahan?” and the witness will answer
“Yes ma’am/sir.”
A false attestation shall subject the lawyer mentioned to
disciplinary action, including disbarment.
Sec. 5. Subpoena. - If the government employee or official, or
the requested witness, who is neither the witness of the adverse
22
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.
DISCUSSION
We mentioned that a judicial affidavit is prepared beforehand and
it is in the form of a question and answer, in a written form. Where
are judicial affidavits made? Of course, if you are the lawyer of your
witness or the adverse party, then it will be in your office. It’s not
in court, not In the office of your opponent, it’s not in a mutual
place, of course it’s not neutral, because you are preparing the
judicial affidavit in favor of your client or the judicial affidavit of
witnesses to favor your client. It’s necessarily ex parte. The adverse
party will have no participation in the making of the judicial
affidavit.
For example, you have a witness who is a government employee or
official, or any witness, who does not give consent but such was
taken, also judicial affidavit or to have an interview, who is neither
the witness nor a hostile witness, as long as he is not a witness of
the adverse party or a hostile witness.
For example, Register of Deeds, you want to get his judicial
affidavit, but he refuses without just cause. So, what is your
remedy?
The Rules says, you could ask for a subpoena ad testificandum and
duces tecum, if you have documents, papers, books that is in
possession of that government official that you want him to
produce.
The same rules in the issuance of a subpoena, except the taking of
a judicial affidavit shall be understood to be ex parte. Same rules
to subpoena when you take a deposition, except in a deposition
there is a need for a notification, here there is no need of a notice
and the court can issue a subpoena because a judicial affidavit is
necessarily executed ex parte.
The rule says who neither the witness of the adverse party nor a
hostile witness. What will happen if you want to get the judicial
affidavit of your enemy, because you know that he will not testify
in court because he is afraid that he will tell the truth in court and
may end up losing, but you really want him to go to court , you want
him to testify because he is afraid to tell a lie because there is a
threat of perjury.
Q: What will we do?
A: We have Rule 23, Section 4 deposition, you want to take
deposition of an adverse party, you can avail on the rules of
deposition and then we discussed before that when an adverse
party’s deposition has been taken, there is no need to bring him in
court to testify again, you just need to offer his deposition as your
evidence. That is in case of an adverse party or a hostile witness.
Sec. 6. Offer of and objections to testimony in judicial
affidavit.- The party presenting the judicial affidavit of his

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
witness in place of direct testimony shall state the purpose of
such testimony at the start of the presentation of the witness.
The adverse party may move to disqualify the witness or to
strike out his affidavit or any of the answers found in it on
ground of inadmissibility. The court shall promptly rule on the
motion and, if granted, shall cause the marking of any excluded
answer by placing it in brackets under the initials of an
authorized court personnel, without prejudice to a tender of
excluded evidence under Section 40 of Rule 132 of the Rules of
Court.
DISCUSSION
Q: What is the nature of the testimony which is embodied in a
judicial affidavit? Is it a testimonial evidence? Or is it a
documentary evidence?
A: When you say judicial affidavit, it takes the place of the direct
examination of your witness. The judicial affidavit constitutes the
direct testimony and the direct examination; therefore, it is a
testimonial evidence.
Q: When are you supposed to offer the testimony of the witness?
A: When he is already called to the witness stand to testify. Before
you let your witness identify his judicial affidavit, you must first
state the purpose of his testimony and you offer his testimony.
“Your honor, I’m calling Mr. Juan dela Cruz to the witness stand for
the following purpose” or
“I’m offering the testimony of Mr. Juan dela Cruz to establish the
following and for the following purposes”
You enumerate what are the purposes of the testimony of Mr. Juan
dela Cruz. So, that’s the time when you will make the offer.
Q: How about in documentary evidence?
A: During his testimony in court, he will just identify the judicial
affidavit that he executed, that he voluntarily executed the judicial
affidavit, that he understood the content, he was not coerced and
then he will identify the documents.
The documents that are attached in the judicial affidavit, you will
offer it after the presentation of the testimonial evidence because
it is possible that for example you have three (3) witnesses, the
documents that are attached in their judicial affidavits are the
same, so you will offer the documents after the testimony of these
witnesses.
Q: When can you object if you’re the adverse party?
A: For example, you’re the counsel for the defendant and the
plaintiff already called to the witness stand Mr. Juan dela Cruz and
the witness offered the testimony of Mr. Juan dela Cruz, then you
objected because based on the offer made by the lawyer of the
plaintiff, you have objections, such as Juan dela Cruz is not
competent to testify, maybe Juan dela Cruz is the lawyer of the
defendant, so their communication is covered by the Attorney-
Client privilege, so it’s not allowed to be divulged in court without
the consent of the client, or martial disqualification rule, or maybe
based on the purpose of the offer that was stated by the plaintiff is
just hearsay, or maybe the witness was called to the witness stand
to testify on a contract which is supposed to be in writing to be
enforceable, covered by the statute of frauds. So, if you’re the
lawyer for the defendant, you should immediately and promptly
raise your objection, so you can move to disqualify the witness or
to strike out his affidavit or any of the answers found on the ground
of inadmissibility.
23
In judicial affidavits, the questions and the answers are already
provided and that as the lawyer for the adverse party, you will be
given a copy of the judicial affidavit, so before the hearing, you are
able to read the content of the judicial affidavit of your opponent,
so you will see in his answers what are those that are objectionable,
so the moment he is called to the witness stand and the lawyer
already makes an offer of the testimony and then the court will ask
you if you have any comment on the judicial affidavit submitted,
you should already raise your objections.
The court shall also promptly rule on the motion and if granted shall
cause the marking of any excluded answer by placing it in brackets.
So, those which are stricken out, it is either, you will not allow the
witness to testify because the witness is incompetent or maybe the
witness is competent however based on your initial cross-
examination of the witness, you discovered that he was just
coached by the lawyer of the adverse party and that the judicial
affidavit was already prepared and he was not able to read it
properly, so you can move to strike out the judicial affidavit. Or
maybe there are certain questions or answers in the judicial
affidavit that you just want to strike out because it is irrelevant or
hearsay, or you have a ground for objection, so those are the
possible scenarios.
“without prejudice to a tender of excluded evidence under Section
40 of Rule 132 of the Rules of Court.”
You will discuss this in your evidence, but basically tender of
excluded evidence, for example, you are the defendant and the
plaintiff presented his witness and then after hearing the offer of
the plaintiff, you objected because according to you the testimony
of the of the witness of the plaintiff is irrelevant, everything
contained in his judicial affidavit is not material at all to the
resolution of the case and then the court agreed with you, so it will
strike out the judicial affidavit of the witness, but then the plaintiff
can still tender the excluded evidence.
Q: Will the court consider it?
A: No, because the court already excluded. So, what is the purpose
of tender of excluded evidence? Just In case there is a need to
appeal, at least you did not forego your right in that excluded
evidence, so it can still be considered upon review. So, that’s the
purpose
Sec. 7. Examination of the witness on his judicial affidavit. –
The adverse party shall have the right to cross-examine the
witness on his judicial affidavit and on the exhibits attached to
the same. The party who presents the witness may also examine
him as on re-direct. In every case, the court shall take active part
in examining the witness to determine his credibility as well as
the truth of his testimony and to elicit the answers that it needs
for resolving the issues.
DISCUSSION
This is already mentioned, when the witness already identifies his
judicial affidavit, he will be subjected to cross-examination and
then re-direct examination and then re-cross-examination, the
court can also ask questions from the witness.
Sec. 8. Oral offer of and objections to exhibits. –
Upon the termination of the testimony of his last witness, a
party shall immediately make an oral offer of evidence of his

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
documentary or object exhibits, piece by piece, in their
chronological order, stating the purpose or purposes for which
he offers the particular exhibit.
After each piece of exhibit is offered, the adverse party shall
state the legal ground for his objection, if any, to its admission,
and the court shall immediately make its ruling respecting that
exhibit.
Since the documentary or object exhibits form part of the
judicial affidavits that describe and authenticate them, it is
sufficient that such exhibits are simply cited by their markings
during the offers, the objections, and the rulings, dispensing
with the description of each exhibit.
DISCUSSION
Section 8, as already mentioned, after the testimonial evidence had
already been concluded, that’s when you will make your formal
offer of exhibits.
The rule says oral offer, “You honor, I’m offering the following
exhibits:
Exhibit ‘A’(Plaintiff) Birth Certificate to prove that the plaintiff is the
child of the defendant.
Exhibit ‘B’ and so on and so forth.
It must be in chronological order.
Please remember, there are also cases that the exhibits or
documents are too many (isa ka karton), it would be better in that
particular situation, your formal offer of exhibits be in writing.
Sec. 10. Effect of non-compliance with the judicial Affidavit
Rule.
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,OOO.OO nor
more than P5,OOO.OO, 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,OOO.OO nor more
than P5,OOO.OO, at the discretion of the court.
Q: What is the effect of non-compliance with the Judicial Affidavit
Rule?
A: The rule says, a party who fails to submit the required judicial
affidavits and exhibits on time shall be deemed to have waived their
24
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,OOO.OO nor more than
P5,OOO.OO.
Again as we have said, the rules has already been changed because
upon the submission, upon the filing of the complaint you should
already have your judicial affidavits or upon the filing of the
answers, so if it is not attached, the rule says you are deemed to
have waived the presentation of that particular testimony, unless
there is a justifiable reason.
Q: What if you are able to submit the judicial affidavit of witness
Juan dela Cruz, however during the trial, he was not able to
attend, and he has no justifiable reason for his absence?
A: The rule says, the court shall not consider the affidavit of any
witness who fails to appear at the scheduled hearing of the case as
required.
Q: How about if you are able to submit the judicial affidavit of
witness Juan dela Cruz, however, you as the counsel was not able
to attend?
A: The rule says, 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.
Q: What if you are the lawyer of the adverse party, for example
you opponent (lawyer of the plaintiff) and you as the lawyer for
the defendant, so trial, your opponent is present, his witness is
present, they were able to submit beforehand a judicial affidavit,
however you were not able to. What are the consequences?
A: He can still be presented in court, he will identify his judicial
affidavit, and the documents attached, however you lost the right
to cross-examine the witness.
What if your judicial is wrong, the form is not proper, there is no
attestation for example, there are no warranties why you only
submitted a photocopy and not the original, there is no statement
there that he is aware that he will be committing perjury if
deliberately commits falsehood?
A: The rule says, 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.
Q: Can you submit an amended affidavit?
A: 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,OOO.OO nor more than
P5,OOO.OO, at the discretion of the court.
 25
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

RULE 25
INTERROGATORIES TO PARTIES
DISCUSSION
This concept has already been basically explained. Here, the party
sends sets of questions to the other party to be answered by the
adverse party. So, this is the concept.
It is different from the written interrogatories in deposition. In
deposition, there is a scheduled date of deposition but prior to that,
if they opt to do it by written interrogatories, the other party will
send a direct examination question and then the other will send a
re-direct examination question and then the other party will send
cross then re-cross. All of these questions will be given to the
deposition officer who will propound these questions to the
deponent.
Section 1. Interrogatories to parties; service thereof.- 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.
DISCUSSION
What is important here is ‘When do you serve the interrogatories
to parties?”
there are questions that you would like the other party to answer,
so when do you send them? The rule says upon ex-parte motion.
There is NO mention here of a particular time. Unlike in the old
rules where the procedure is similar with the old procedure of
deposition pending action. Meaning, before, it should be by leave
of court after jurisdiction has been obtained over the defendant.
Meaning, after summons had been served to the defendant you file
a motion before the court to allow you to serve interrogatories to
parties.
or to state with sufficient definiteness allegations in a pleading. A
bill of particulars therefore, is directed to a pleading (Sec. 1, Rule
12, Rules of Court). Interrogatories to parties are not directed to a
particular pleading. Instead, they seek to disclose all material and
relevant facts from a party (Sec. 1, Rule 23, Rules of Court).
INTERROGATORIES vs. BILL OF PARTICULARS
Q: Now, how do we distinguish interrogatories from Bill of
particulars?
A: When we say interrogatories, as we have already mentioned, the
purpose here is to elicit material and relevant facts from any
adverse party.
When you say “Material and Relevant facts”, these are not
necessarily mentioned in the pleading. So for example, you are the
defendant. The complaint may not mention those facts or other
matters which you want to discover. Which you want the other
party to answer or to admit or clarify.
BILL OF PARTICULARS
When you say “Bill of particulars, you are the defendant then you
have the complaint, then there are certain matters in the complaint
which are vague or which are not clear or which you want to be
clarified on for you to be able to properly interpose your defense.
So, when you say bill of particulars, you are just limited to what is
missing in the complaint. Or what is vague in the complaint.
INTERROGATORIES
But, when you say interrogatories, we are NOT limited to the
complaint. As long as those matters or those facts which you want
the other party to clarify or to answer are material and relevant to
the case and which are not covered by the limitations.
INTERROGATORIES TO PARTIES vs. WRITTEN INTERROGATORIES
IN A DEPOSITION
DEPOSITION UPON WRITTEN INTERROGATORIES TO
INTERROGATORIES PARTIES

Now, when the defendant has already answered, no need for you The deposition is taken before a There is no deposition
to file a motion to serve interrogatories. You can just send directly. deposition officer who will ask officer. This is strictly a
But now, there is no such distinction. HOWEVER, it requires a the questions. party to party activity.
motion, although ex-parte motion. Meaning you don’t need to
furnish the other party with a copy of your motion. You file it Questions are prepared Questioning is direct.
directly in court. So, that’s what is important in section 1. beforehand. They are submitted Plaintiff questions
to the deposition officer who defendant, defendant
WHAT ARE INTERROGATORIES? will ask the deponent the questions the plaintiff.
questions and he will record the There is no third person
Interrogatories are simply written questions. Instead of questions
answers. who will intervene
and answers orally made, interrogatories are in writing to be
answered as well by the recipient of the interrogatory in writing.
The deposition of any person You can send
may be taken, whether he is a interrogatories only to
party or not. parties, not to witness or
PURPOSE OF INTERROGATORIES TO PARTIES strangers.
This mode of discovery which is availed of by a party to the action
is for the purpose of ELICITING MATERIAL AND RELEVANT FACTS DISCUSSION
FROM ANY ADVERSE PARTY (Sec. 1, Rule 25, Rules of Court). Q: How do we distinguish interrogatories to parties from written
interrogatories.
DISTINGUISHED FROM A BILL OF PARTICULARS A: Written interrogatories in a deposition are NOT SERVED upon
the adverse party directly. Although, you will also furnish the other
A bill of particulars is designed to clarify ambiguities in a pleading party with a copy of your interrogatories, which could be your
direct-examination or the cross-examination, redirect, recross,

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
everything in the form of a WRITTEN interrogatory (in writing). They
are delivered to the officer before whom the deposition is to be
taken and then the deposition officer during the deposition will be
the one to propound all these questions to the deponent.
On the other hand, interrogatories to parties are SERVED DIRECTLY
upon the adverse party. So, for example the defendant was the one
who sent interrogatories to the plaintiff, he will directly send it to
the plaintiff. Then, the plaintiff also if he has answers under oath,
will have to send that directly to the defendant.
Those are the main distinctions. Just read the other distinctions.
SEC. 2. Answer to interrogatories.—The interrogatories shall be
answered fully in writing and shall be signed and sworn to by the
person making them. The party upon whom the interrogatories
have been served shall file and serve a copy of the answers on the
party submitting the interrogatories within fifteen (15) calendar
days after service thereof, unless the court, on motion and for good
cause shown, extends or shortens the time. (2a)
DISCUSSION
For example, you are now the party who received the
interrogatories, your answer should be in writing. Then, you shall
sign the document where you wrote your answer. Then, sworn to.
Meaning, there must be jurat.
How many days to answer? It says within 15 calendar days after
service thereof, unless the court, on motion and for good cause
shown, extends or shortens the time.
You have received written interrogatories. You have to answer that
in writing, signed and sworn to, and should serve that within 15
days from the time that you have received a copy of that written
interrogatories.
TAKE NOTE: The rule says “unless the court, on motion and for good
cause shown, extends or shortens the time”. So, if a party moves to
shorten or extends the time, it could be ‘only in 10 days’ or it could
also be ‘in 20 days’. The only peculiar thing here is there’s a
provision to ‘shorten’. Usually, the rules provide for extension, but
here it could be shortened from the time that was provided by the
rules. Who will move? Of course that party which filed or served
interrogatories to you. He will move to either shorten.
On the other hand, you may also move to extend because 15 days
is not enough for you. I don’t think if you receive an interrogatory
you will move to shorten the time. Of course, you would ask to
extend if you are a party to answer. But if you are the party who
served, you may also ask for the shortening of the period maybe
because ‘15 days is too long for them to answer’ when you only
gave 1 page interrogatory.
REQUIREMENTS: ANSWER TO INTERROGATORIES
Under Section 2, the answer to the interrogatory must be:
1.) Fully in writing;
2.) Signed by the party answering;
3.) Made under oath or sworn to by the party answering;
4.) Filed and served on the party submitting the
interrogatories within 15 days after service, unless the
court on motion and for good cause, extends or
shortens the time.
26
DISCUSSION
SECTION 2 IS RARE
Section 2 is a rare provision. In general, when the Rules allow a
period within which to comply, the party who is required to make
compliance is entitled to the entire period and he may even ask for
reasonable extensions of time for as long as not dilatory and
consistent with the interest of justice. Section 2, however, allows
shortening of a period within which compliance must be made.
Since shortening a period is not the norm, there must be a motion
and a good cause for the abbreviation of time.
Again, if you want to move to shorten the time for the other party
to answer, then there must be a good cause. (like if you only sent 1
page interrogatory or you only have maybe 2 questions. That would
not take him/her 15 days to answer that. It can be answered in 1
day or 2 days.)
SEC. 3. Objections to interrogatories.—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. (3a)
DISCUSSION
Objections to interrogatories. For example, you received
interrogatories. You are the defendant and the plaintiff served
interrogatories on you. So, you have to answer those questions
embodied in the interrogatory. However, you have objections.
Q: So, what would be the possible grounds for objection?
a.) impropriety;
b.) immateriality;
c.) inadmissibility; or
d.) Privilege communications (the question that the
plaintiff is desiring you to answer)
Q: When should you raise your objections to interrogatories?
A: The rule says within 10 calendar days after service. So, from the
time that you received the interrogatories, if you have any
objections, you have 10 days within which to manifest your
objections.
As to the form of your objections, the rule says thereof, with notice
as in case of a motion. Meaning, it should be in writing and that you
must also serve the other party with the copy of your objections.
But of course, you file your objections in court. Although, again, the
interrogatories itself must be served directly to the party (though
you could furnish the court with a copy, but it’s not required by the
rules). And if you answer, that must also be sent directly to the
other party. However, if there are objections, you have to furnish
the court because the court will rule on your objections. It will not
be the other party who will rule on your objections. Of course, if
the other party will rule on it, they will most likely deny it.
In the meantime the court has not yet resolved the objections, the
answer shall be deferred until the objections are resolved. So,
your 15 days can still be extended within which to answer.
SEC. 4. Number of interrogatories.—No party may, without
leave of court, serve more than one set of interrogatories to be
answered by the same party. (4)

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
GR: One set of interrogatories only.
XPN: When after serving the interrogatories, you can serve
more than one set but with leave of court.
SEC. 5. Scope and use of interrogatories.—Interrogatories may
relate to any matters that can be inquired into under Section 2
of Rule 23, and the answers may be used for the same purposes
provided in Section 4 of the same Rule.
Q: What can you ask to your interrogatories?
A: Matters relevant subject to some limitations, just like
depositions.
As to the purposes, same purposes we discussed under Rule 23,
Section 4.
DISTINCTION: HOW TO OBJECT
DEPOSITION UPON WRITTEN INTERROGATORIES TO
INTERROGATORIES PARTIES
Objections made in the course Objections are presented
of the deposition taking are directly to the court.
taken note of by the
deposition officer. He does
not rule on it (objections). Take note: you will not answer
yet to the interrogatories if
Take note: The deposition will the court has not ruled on the
still take place, the court will objections to the
rule on the objections during interrogatories.
the trial.
SEC. 6. Effect of failure to serve written interrogatories.—
Unless thereafter allowed by the court for good cause shown
and to prevent a failure of justice, a party not served with
written interrogatories may not be compelled by the adverse
party to give testimony in open court, or to give a deposition
pending appeal. (6).
This is important.
Q: What if you failed to serve written interrogatories to the
adverse party?
A: The rule says that you cannot compel that adverse party to give
testimony in open court or to give a deposition pending appeal,
unless there is a good cause shown and it is to prevent a failure of
justice.
DISCUSSION
In that particular exception even if you did not serve written
interrogatories to the adverse party, you can make him testify in
open court.
Q: Why would you even want your adversary to testify well?
A: There might be instances where the testimony is actually
favorable to you.
Example:
In a collection case where A files a case against B, the amount being
collected in 1 million. Here, A will be the one who will present the
evidence first – A would have witnesses and documents. After the
formal offer, B will present his own evidence.
B as the defendant contends that, yes, in the promissory note P1
million is the amount indicated but B already paid P800,000 but
there’s no receipt. How will B prove it?
27
Here A did not take the witness stand since A does not want it to
be known that there was already partial payment because when a
person takes the witness stand, the testimony is under oath and
such person can be held liable for perjury when it turns out later on
that the person lied.
Here, B wants to take the testimony of A, B should then serve
written interrogatories providing there in the questions B wants to
A answer.
Actually, if A testifies, there is no need for B to serve written
interrogatories since if A will take the witness stand, the lawyer of
B can cross-examine A in order to ask A about the payment.
The written interrogatories are only important where the adverse
party does not take the witness stand and there is no opportunity
to cross-examine such adverse party, you can compel him to take
the witness stand as the adverse party witness.
TESTIMONY OF ADVERSE PARTY
Q: Can a party be made to testify by the adverse party?
A: Yes. This is allowed under the Rules on Evidence but it is rarely
done because one cannot expect his opponent to give testimony in
his favor, however if you really want your adverse party to testify
and take the witness stand to be cross-examined, you can compel
him to testify but again you must serve written interrogatories
otherwise you cannot compel the adverse party to give testimony
in open court.
Again, the plaintiff, for example, cannot be compelled by the
defendant to testify in open court if the defendant did not serve
him not serve the plaintiff with written interrogatories.
Q: Can he (adverse party witness) be asked leading questions?
A: Yes. Under Rule 132, Section 10 leading questions are allowed to
be asked if he is the adverse party. An adverse party cannot be
expected to voluntarily give information, leading questions are
allowed since the adverse party will not be cooperative.
Leading questions are answerable by yes or no where you are
suggesting to the witness the answer to the question.
Example
Is it correct if I say that you already received payment of 800,000
pesos from the defendant? The answer here is only yes or no.
This is to be distinguished from a direct examination. In direct
examinations, you usually ask question like: what, when, where,
why. You do not give the witness any clue. You cannot ask him
leading questions, he must be on his own to be able to testify freely
and recall with clarity what are those facts or circumstances he
witnessed.
Q: Can he (adverse party witness) be impeached?
A: Yes. Under Rule 132, Section 12 to be discussed further under
the Rules on Evidence. This is the exception to the general rule.
GR: If you bring a witness to testify in the witness stand, there
is an implied guarantee that the witness is credible is not a liar
and that he can be believed since the reason of bringing him on
the first place is to shed light and it it turns out that your own
witness’ testimony is not favorable to you, you cannot just say
that such witness is actually a liar, because again it is your duty
to present a witness in court.
XPN: If he is an adverse party, you can actually impeach him

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Q: Can he (adverse party witness) be deposed?
A: Yes, under Rule 23, Section 1 and related provisions.
Q: What are the uses of his (adverse party witness) deposition?
A: He can be impeached by the statements he made in the
deposition as evidence that he has made a previous inconsistent
statement. His deposition may also be used for any purpose such
as proving that he made an admission adverse to his interest.
GR: It is not enough that there is a deposition, for his testimony
not to be categorized as hearsay, he should be presented in
court and testify.
XPN: If he is the adverse party, there is no need to bring him in
court to testify again.
SPOUSES AFULUGENCIA vs. METROPOLITAN
BANK & TRUST CO.
G.R. No. 185145 | February 5, 2014
Section 6, Rule 25 of the Rules of Court (Rules) provides that "a
party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open court,
or to give a deposition pending appeal." The provision seeks to
prevent fishing expeditions and needless delays. Its goal is to
maintain order and facilitate the conduct of trial.
FACTS: Petitioners, spouses Afulugencia, filed a Complaint for
nullification of mortgage, foreclosure, auction sale, certificate of
sale and other documents, with damages, against respondents
Metropolitan Bank & Trust Co. (Metrobank) and Emmanuel L.
Ortega (Ortega).
After the filing of the parties’ pleadings and with the conclusion
of pre-trial, petitioners filed a Motion for Issuance of Subpoena
Duces Tecum Ad Testificandum to require Metrobank’s officers
to appear and testify as the petitioners’ initial witnesses during
the August 31, 2006 hearing for the presentation of their
evidence-in-chief, and to bring the documents relative to their
loan with Metrobank, as well as those covering the extrajudicial
foreclosure and sale of petitioners’ 200-square meter land in
Meycauayan, Bulacan covered by Transfer Certificate of Title
No. 20411 (M).
Metrobank essentially argues that being its officers, the persons
sought to be called to the stand are themselves adverse parties
who may not be compelled to testify in the absence of prior
written interrogatories; they are not ordinary witnesses whose
presence in court may be required by petitioners at any time and
for any reason.
RULING:
Metrobank is correct. Contrary to petitioners’ submission, the
case of Adorio cannot apply squarely to this case. In Adorio, the
request for subpoena duces tecum was sought against bank
officials who were not parties to the criminal case for violation
of Batas Pambansa Blg. 22. The situation is different here, as
officers of the adverse party Metrobank are being compelled to
testify as the calling party’s main witnesses; likewise, they are
tasked to bring with them documents which shall comprise the
petitioners’ principal evidence.
As a rule, in civil cases, the procedure of calling the adverse party
to the witness stand is not allowed, unless written
interrogatories are first served upon the latter. This is embodied
in Section 6, Rule 25 of the Rules.
28
One of the purposes of the above rule is to prevent fishing
expeditions and needless delays; it is there to maintain order
and facilitate the conduct of trial. It will be presumed that a
party who does not serve written interrogatories on the adverse
party beforehand will most likely be unable to elicit facts useful
to its case if it later opts to call the adverse party to the witness
stand as its witness. Instead, the process could be treated as a
fishing expedition or an attempt at delaying the proceedings; it
produces no significant result that a prior written
interrogatories might bring.
Besides, since the calling party is deemed bound by the adverse
party’s testimony, compelling the adverse party to take the
witness stand may result in the calling party damaging its own
case. Otherwise stated, if a party cannot elicit facts or
information useful to its case through the facility of written
interrogatories or other mode of discovery, then the calling of
the adverse party to the witness stand could only serve to
weaken its own case as a result of the calling party’s being bound
by the adverse party’s testimony, which may only be worthless
and instead detrimental to the calling party’s cause.
DICUSSION
The court here cited Section 6, Rule 25 of the Rules of Court, where
the procedure of calling the adverse party to the witness stand is
not allowed unless written interrogatories are first served.
One of the purposes of these rules to prevent fishing expeditions
since those questions, those documents that you wish to the
witness to bring you could have sought by serving interrogatories,
The Supreme Court said that calling an adverse party into the
witness stand without a prior written interrogatory could produce
no significant results that a priority and interrogatories might bring.
Here, it was just an attempt to delay the proceedings.
Besides, if you did not serve prior interrogatories to the adverse
party, you have no way of knowing what to be his testimony in open
court if you compel him to testify on your behalf. It could just
weaken your case and the Supreme Court said that it could only be
worthless and instead detrimental to the calling parties cause.
HELD: … Another reason for the rule is that by requiring prior
written interrogatories, the court may limit the inquiry to what
is relevant, and thus prevent the calling party from straying or
harassing the adverse party when it takes the latter to the stand.
Thus, the rule not only protects the adverse party from
unwarranted surprises or harassment; it likewise prevents the
calling party from conducting a fishing expedition or bungling its
own case. Using its own judgment and discretion, the court can
hold its own in resolving a dispute, and need not bear witness to
the parties perpetrating unfair court practices such as fishing for
evidence, badgering, or altogether ruining their own cases.
Ultimately, such unnecessary processes can only constitute a
waste of the court’s precious time, if not pointless
entertainment.
In the present case, petitioners seek to call Metrobank’s officers
to the witness stand as their initial and main witnesses, and to
present documents in Metrobank’s possession as part of their
principal documentary evidence. This is improper. Petitioners
may not be allowed, at the incipient phase of the presentation
of their evidence-in-chief at that, to present Metrobank’s
officers – who are considered adverse parties as well, based on
the principle that corporations act only through their officers
and duly authorized agents – as their main witnesses; nor may

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
they be allowed to gain access to Metrobank’s documentary
evidence for the purpose of making it their own. This is
tantamount to building their whole case from the evidence of
their opponent. The burden of proof and evidence falls on
petitioners, not on Metrobank; if petitioners cannot prove their
claim using their own evidence, then the adverse party
Metrobank may not be pressured to hang itself from its own
defense.
It is true that under the Rules, a party may, for good cause shown
and to prevent a failure of justice, be compelled to give
testimony in court by the adverse party who has not served
written interrogatories. But what petitioners seek goes against
the very principles of justice and fair play; they would want that
Metrobank provide the very evidence with which to prosecute
and build their case from the start. This they may not be allowed
to do.
Finally, the Court may not turn a blind eye to the possible
consequences of such a move by petitioners. As one of their
causes of action in their Complaint, petitioners claim that they
were not furnished with specific documents relative to their
loan agreement with Metrobank at the time they obtained the
loan and while it was outstanding. If Metrobank were to willingly
provide petitioners with these documents even before
petitioners can present evidence to show that indeed they were
never furnished the same, any inferences generated from this
would certainly not be useful for Metrobank. One may be that
by providing petitioners with these documents, Metrobank
would be admitting that indeed, it did not furnish petitioners
with these documents prior to the signing of the loan
agreement, and while the loan was outstanding, in violation of
the law.
DISCUSSION
The Supreme Court also explained that the reason why we require
prior written interrogatories before we can call the adverse party
to the witness to testify on our behalf so that the court may limit
the inquiry to what is relevant and thus prevent the calling party
from straying or harassing the adverse party when he takes the
latter to the stand. This is aside from the need to prevent fishing
expeditions and unwanted surprises or harassment.
The Supreme court here clarified that the officers of Metrobank are
actually considered adverse parties based on the principle that
corporations act only through officers or duly authorized agents. If
you are suing a corporation, the corporation has no physical
existence, it only acts through its officers. Necessarily those officers
are part of the term adverse party. It is unfair in this case that the
plaintiffs’ filed a case but they don’t have any documents, evidence,
or witnesses to build their case. Metrobank may not be pressured
to hang itself from its own defense. You can compel the officers to
testify only if you serve prior written interrogatories which was not
done in this case.
How about the exception to the rule that a party may, for good
cause shown and to prevent a failure of justice, be compelled to
give testimony in court by the adverse party who has not served
written interrogatories? Here in this case, there is no good cause
shown according to the Supreme Court and what was intended by
the plaintiff complainants here was not actually to prevent a failure
of justice. In fact, it would even cause injustice because here, they
want Metrobank to provide the very evidence with which to
prosecute and build their case from the start. The Supreme Court
said that this may not be allowed. If one is filing a case, he should
be ready with his own evidence with more reason with our present
29
amended rules which provides that even in one’s complaint, he
should attach the documentary exhibits, all the evidence. You have
to allege not only the ultimate facts but also the evidentiary facts.
You cannot rely on your opponent to win the case.
The Supreme Court also said that it is unfair to grant the subpoena
regarding the request to compel Metrobank to bring the subject
documents because based on the allegations of plaintiffs, they
were not furnished with copies of the documents. If this is true, this
would be very violative of the rules because both parties must know
the contents of the agreement. Now, if Metrobank will give these
documents to the plaintiff, it also already tantamount to
Metrobank admitting that they have not furnished the other party
with documents. The stance pf Metrobank is that they have already
provided the other party the documents so they should not be
asking for the documents now.
NG MENG TAM vs. CHINA BANKING CORPORATION
G.R. No. 214054, August 05, 2015
FACTS: On March 15, 2011, petitioner served interrogatories to
parties pursuant to Sections 1 and 6, Rule 25 of the Rules of
Court to China Bank and required Mr. George C. Yap, Account
Officer of the Account Management Group, to answer.
On June 22, 2011, George Yap executed his answers to
interrogatories to parties.
Because he found Yap’s answers to the interrogatories to parties
evasive and not responsive, petitioner applied for the issuance
of a subpoena duces tecum and ad testificandum against
George Yap pursuant to Section 6, Rule 25 of the Revised Rules
of Court.
On April 29, 2014, when the case was called for the presentation
of George Yap as a witness, China Bank objected citing Section 5
of the Judicial Affidavit Rule (JAR). China Bank said that Yap
cannot be compelled to testify in court because petitioner did
not obtain and present George Yap’s judicial affidavit. The RTC
required the parties to submit their motions on the issue of
whether the preparation of a judicial affidavit by George Yap as
an adverse or hostile witness is an exception to the judicial
affidavit rule.
Petitioner contended that Section 5 does not apply to Yap
because it specifically excludes adverse party witnesses and
hostile witnesses from its application. Petitioner insists that Yap
needed to be called to the stand so that he may be qualified as
a hostile witness pursuant to the Rules of Court.
China Bank, on the other hand, stated that petitioner’s
characterization of Yap’s answers to the interrogatories to
parties as ambiguous and evasive is a declaration of what type
of witness Yap is. It theorizes that the interrogatories to parties
answered by Yap serve as the judicial affidavit and there is no
need for Yap to be qualified as a hostile witness.
In its May 28, 2014 Order, the RTC denied for lack of merit
petitioner’s motion to examine Yap without executing a judicial
affidavit. The RTC in interpreting Section 5 of the JAR stated that
Section 5 did not apply to Yap since he was an adverse witness
and he did not unjustifiably decline to execute a judicial
affidavit.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
HELD: SECTION 5 OF THE JAR DOES NOT
APPLY TO ADVERSE PARTY WITNESSES
The JAR primarily affects the manner by which evidence is
presented in court. Section 2(a) of the JAR provides that judicial
affidavits are mandatorily filed by parties to a case except in
small claims cases. These judicial affidavits take the place of
direct testimony in court. It provides:
Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of
direct testimonies. – (a) The parties shall file with the court and
serve on the adverse party, personally or by licensed courier
service, not later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions
and incidents, the following:
(1) The judicial affidavits of their witnesses, which shall take the
place of such witnesses’ direct testimonies; and
(2) The parties’ documentary or object evidence, if any, which
shall be attached to the judicial affidavits and marked as Exhibits
A, B, C, and so on in the case of the complainant or the plaintiff,
and as Exhibits 1, 2, 3, and so on in the case of the respondent
or the defendant.
xxxx
Section 3 of the JAR enumerates the content of a judicial
affidavit.
Under Section 10, parties are to be penalized if they do not
conform to the provisions of the JAR. Parties are however
allowed to resort to the application of a subpoena pursuant to
Rule 21 of the Rules of Court in Section 5 of the JAR in certain
situations. Section 5 provides:
Sec. 5. 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.
While we agree with the RTC that Section 5 has no application
to Yap as he was presented as a hostile witness we cannot agree
that there is need for a finding that witness unjustifiably refused
to execute a judicial affidavit.
Section 5 of the JAR contemplates a situation where there is a
(a) government employee or official or (b) requested witness
who is not the (1) adverse party’s witness nor (2) a hostile
witness. If this person either (a) unjustifiably declines to
execute a judicial affidavit or (b) refuses without just cause to
make the relevant documents available to the other party and
its presentation to court, Section 5 allows the requesting party
to avail of issuance of subpoena ad testificandum or duces
tecum under Rule 21 of the Rules of Court. Thus, adverse party
witnesses and hostile witnesses being excluded they are not
covered by Section 5. Expressio unius est exclusion alterius: the
30
express mention of one person, thing, or consequence implies
the exclusion of all others.
Here, Yap is a requested witness who is the adverse party’s
witness. Regardless of whether he unjustifiably declines to
execute a judicial affidavit or refuses without just cause to
present the documents, Section 5 cannot be made to apply to
him for the reason that he is included in a group of individuals
expressly exempt from the provision’s application.
The situation created before us begs the question: if the
requested witness is the adverse party’s witness or a hostile
witness, what procedure should be followed?
The JAR being silent on this point, we turn to the provisions
governing the rules on evidence covering hostile witnesses
specially Section 12, Rule 132 of the Rules of Court which
provides:
SEC. 12. Party may not impeach his own witness. – Except with
respect to witnesses referred to in paragraphs (d) and (e) of
Section 10, the party producing a witness is not allowed to
impeach his credibility.
DISCUSSION
Here, the petitioner served interrogatories to parties pursuant to
Sections 1 and 6, Rule 25 of the Rules of Court to China Bank.
Meaning, they have served questions to the other party for the
other party to answer. They required the account officer, George
Yap, of the account management group of China Banking
Corporation to answer the interrogatories. Mr. George Yap
answered the interrogatories and then when the petitioners saw
the answers, they found Yap’s answers evasive and not responsive.
So, petitioner applied for the issuance of a subpoena duces
tecum and ad testificandum against George Yap pursuant to
Section 6, Rule 25 of the Revised Rules of Court.
George Yap attended the scheduled hearing. When the case was
called for the presentation of George Yap as witness, China Bank
objected contending that George Yap cannot be presented as
witness because the judicial affidavit of George Yap was not
submitted, and that Sec. 5 of the Judicial Affidavit rule was violated
which provides that the direct examination of a witness should be
in the form of a Judicial affidavit. China Bank said that George Yap
cannot be compelled to testify in court because his Judicial Affidavit
was not obtained. The court now urged the parties to submit
position papers to answer the question of whether or not George
Yap first execute a judicial affidavit before he can testify in court.
Petitioners contends that there is no need for Yap to have his
Judicial Affidavit because his case is an exception to the Judicial
Affidavit Rule because he is an officer of China Bank therefore an
adverse party and according to Section 5 of Judicial Affidavit Rule is
that, when it is adverse party or a hostile witness, there is no need
to present his judicial affidavit before he will be compelled to give
his testimony in open court.
Issue: WON Section 5 excludes an adverse party witness and hostile
witness from its application
Meaning if the adverse party or hostile witness is excluded from the
application, you can immediately call such adverse party even
without submitting judicial affidavit beforehand.
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CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

George Yap here is an adverse party because he is an officer of
China Banking and pursuant to Section 6 Rule 25, that there is a
need for written interrogatories to be served before he can be
compelled to testify in favor of the calling party. There is no
question that the interrogatories were served. Yap can be
compelled to testify by the calling party. The question here is Can
Yap testify even without having previously executed or submitted
the judicial affidavit of Yap.
The Supreme Court said YES, Yap can testify even without prior
executed judicial affidavit. Section 5 of the JAR does not apply to
the adverse party witness. The JAR primarily affects the manner by
which evidence is presented in court. Section 2(a) of the JAR
provides that judicial affidavits are mandatorily filed by parties to a
case except in small claims cases. Judicial affidavits take the place
of direct testimony in court.
can only be used if the witness is a government official or employee
or any witness who unjustifiably declines to execute judicial
affidavit or refuses without just cause. Your remedy is to subpoena
them pursuant to the rule on deposition and compel them to
execute ex parte their judicial affidavit. This does not include the
adverse party witness or the hostile witness.
If the requested witness is the adverse party’s witness or the hostile
witness, what procedure should be followed?
The Judicial Affidavit Rule is silent on this point, the Supreme Court
said, “we refer to the provisions governing hostile witnesses
specifically Section 12, Rule 132 of the Rules of Court.”

Sec. 5. 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.

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, you
can apply for the issuance of a subpoena ad testificandum or duces
tecum and you can compel him to give his judicial affidavit. This
judicial affidavit is understood to be ex parte.

It is clearly mentioned under Section 5 that “ who is neither the

witness of the adverse party nor a hostile witness.” Those people
who refused to execute judicial affidavit without just cause other
than the adverse party or hostile witness, they are compelled to
execute their judicial affidavit. Meaning if you are the adverse party
or hostile witness, there is no need to submit judicial affidavit
before you can testify in open court.

RTC said that Section 5 has no application to Yap as he was

presented as a hostile witness, we cannot agree that there is need
for a finding that witness unjustifiably refused to execute a judicial
affidavit. However, there is still no finding that Yap unjustifiably
refused to execute a judicial affidavit. Therefore, it was premature
that he will be presented in court without any judicial affidavit and
without even showing beforehand that he refused unjustifiably to
execute a judicial affidavit. But the Supreme Court said that if you
look at Section 5, if you are an adverse party or a hostile witness,
they are excluded from the coverage of Section 5. They are not
required to execute judicial affidavit before they can be allowed to
testify in open court. There is also no need to subpoena them for
them to give their depositions and for them to execute their judicial
affidavit ex parte. Expressio unius est exclusion alterius: the express
mention of one person, thing, or consequence implies the exclusion
of all others.

The requirement that “he unjustifiably declines to execute a judicial

affidavit or refuses without just cause to present the documents”,
 32
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

RULE 26 The purpose of this mode of discovery is to allow one party to

ADMISSION BY ADVERSE PARTY request the adverse party in writing to admit certain material and
relevant matters which most likely will not be disputed during the
SECTION 1. Request for admission.— At any time after issues have trial. To avoid unnecessary inconvenience to the parties in going
been joined, a party may file and serve upon any other party a through the rigors of proof, before the trial, a party may request
written request for the admission by the latter of the genuineness the other to:
of any material and relevant document described in and exhibited (a) admit the genuineness of any material and relevant document
with the request or of the truth of any material and relevant matter described in and exhibited with the request; or
of fact set forth in the request. Copies of the documents shall be (b) admit the truth of any material and relevant matter of fact set
delivered with the request unless copies have already been forth in the request (Sec. 1, Rule 26, Rules of Court).
furnished. (1)
DISTINCTIONS LAÑADA V. CA
DISCUSSION NESTLE PHILIPPINES v. CA
February 1, 2002
This is different from the interrogarities which we discussed in Rule
25. In interrogatories, you serve to the adverse party the questions
The rule on admission as a mode of discovery is intended “to
and then the answers called for by the question are narrations of
expedite trial and to relieve parties of the costs of proving facts
facts. Whereas here, you also file and serve to the adverse party,
which will not be disputed on trial and the truth of which can be
questions, but the questions are answerable only by yes or no.
ascertained by reasonable inquiry.” Thus, if the request for
admission only serves to delay the proceedings by abetting
So when do you file and serve this request for admission? The rules
redundancy in the pleadings, the intended purpose for the rule
says that at anytime after issues have been joined. So what do we
will certainly be defeated.
mean by “after issues have been joined?” This simply means that
the answer of the defendant had already been filed and served. So
LEAVE OF COURT
there is already an answer. So that is when issues have been joined.
Leave of court is not required to avail of a request for admission.
What do you want the other party to admit? So it could the
Copies of the documents shall be delivered with the request unless
admission by the adverse party of the genuiness of any materil or
copy have already been furnished.
relevant document which are described in and exhibited with the
An example of this is an actionable document. By way of review,
request. So any document you would like the adverse party to
actionable documents are required to be attached in the pleading.
admit like for example, you are the plaintiff and you serve the
defendant with a request for admission. So do the defendants
APPLICATION:
admit the genuineness and due execution of the document
In an action for collection of a sum of money plus interest, the
denominated as Deed of Absolute Sale dated October 1, 2005,
defendant made the following request for admission:
which is attached as annex B to the complaint. Okay, so that’s an
Request is hereby made of the following particulars:
example.
1. Do you admit that the debt has been paid?
2. If you admit that the debt has been paid, do you admit
So do the defendants admit that they are familiar with the
having issued a receipt?
signature of Juan de la Cruz? Or do the defendants admit that Juan
3. If you admit 1 and 2, do you admit the genuineness and
de la Cruz was not in physical possession of the lot covered by the
due execution of the attached receipt dated September
TCT of the Lot No. 14344 since October 5,2010 until the present?
29, 2009?
So this is an example of a request for admission regarding material
4. Do you admit the genuineness and due execution of the
and relevant matter of fact. Copies of the document should be
contract of loan dated March 10, 2009?
delivered with the document unless copies have already been
5. Do you admit that there is no stipulation as to payment of
furnished.
interest in the said contract of loan?
Remember that, like for example, a title in my previous illustration
of a question wherein you are asking the other party to admit the
genuineness of a document. So, if that document was not INTERROGATORIES TO REQUEST FOR ADMISSION
previously given to the party against whom a request was made, so PARTIES RULE 26
you attach that to your request for admission. But there are certain RULE 25
documents that needs to be attached to the pleading like if it is for In both, the answers must be under oath.
example, a deed of sale, promissory note, or if it is one described In both, it is purely between parties to the action
under the rule as an actionable document. An actionable document
Specific details or evidentiary Admissions are sought. Thus,
is the foundation of your cause of action or defense. So if you are
matters are sought. The the questions are answerable
the plaintiff, perhaps, it would be the promissory note. Take note
questions asked are WHO, by YES or NO.
that if an actionable document is your basis, you should already
WHAT, WHEN, WHERE, etc.
attach that to the complaint.
Can be availed of at any time Can be availed of if there is an
So in that case, you don’t need to furnish the adverse party a copy
by filing an ex-parte motion. answer served with leave of
of that actionable document, of that promissory note because it
court in the latter case.
was already previously attached in your complaint and the adverse
party already has copy of that document. So that is section 1.

PURPOSE OF ADMISSION BY ADVERSE PARTY


CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
SEC. 2. Implied admission.—Each of the matters of which an
admission is requested shall be deemed admitted unless, within a
period designated in the request, which shall not be less than
fifteen (15) 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. (2a)
DISCUSSION
For example, there is a request for admission served upon you.
When are you supposed to answer it? The rules says, within 15 days
after service. So within 15 days, you should already serve to the
other party, your answer to each of those matters included in the
request for admission. So you either admit or deny. It’s just yes or
no. Or if the questions are such that it’s impossible for you to admit
or to say yes or no because either way, it will be detrimental to you.
So you can just state the reason why you cannot truthfully either
admit or deny those matters. Now if you have objections also to
those questions which are the subject of the request for admission,
can you object? Yes you can file an objection, within the period to
file the request for answer so also within 15 calendar days. Now
what if you objected to the request for admission because maybe
those questions pertain to matters which are privileged or they are
irrelevant, so what will happen to the period within which to file
your answer supposedly to the request for admission? The rule says
that it will be deferred until the objections are resolved. So the
period within which to file answer will be suspended.
What happens if you will just ignore the request for admission? You
did not do anything at all. You did not admit or deny. Take note that
your answer here should be under oath. What if you answered but
not under oath or you did not answer at all?
The rule says each of the matters of which an admission is
requested, shall be deemed admitted. There is admission on your
part of all those matters that you did not answer under oath in the
request for admission of the other party.
ADMISSIONS BY ADVERSE PARTY
The adverse party may make admissions:
1. Out of court, as in the case of extrajudicial admissions, whether
by ct or omission;
EXTRAJUDICIAL ADMISSION.
Under this rule, the admission is admissible only if it is against the
interest of the admitter (otherwise it is a self-serving statement).
Example: Flight is considered a disserving act, since it is prejudicial
to the interest of the accused. Flight is considered as circumstantial
evidence of the guilt of the accused. BUT non-flight cannot be used
as evidence to prove his innocence, because that will be considered
as an act that is favorable to the interest of the accused.
33
2. In court, as in the case of testimony made as a witness, either in
direct, cross, re-direct, re-cross examination;
3. In the pleadings, as in the case of an admission in an answer or
any other paper submitted before the court;
DISCUSSION
Take note that if it is an admission, it can and will be used against
the party who made the admission.
These are the instances. Number 1, Out of court, so it will be called
an extrajudicial admission, whether by act or omission. Under that
category, the admission is only admissible if it is against the interest
of the admitter. Because you will not usually say something which
is against you. But if you say something which is in your favor, you
cannot say that the other party also has to utilize your admission.
Because in so far as you are concerned, it is self-serving. It is more
usual for a person to admit something which is favorable to him
than something that is against him. Usually, if it is against him,
chances are, it’s the truth.
Number 2, in court. So in case of testimony in court like in a direct
examination, your statements there are admissible. Or in a cross
examination, re-direct, re-cross.
Number 3, in the pleadings, like in the answer, you admitted
something. In your answer, you generally denied an allegation of
the plaintiff. As we have already discussed, it is also equivalent to
an admission.
In a pleading or in any other paper submitted before the court. So
those are binding against the pleader.
4. By failing to make a proper denial, as in the case of a general
denial when a specific one is required or in the case of a denial of
an actionable document not under oath.
For example, for an allegation that defendant is “without
knowledge or information sufficient to form a belief as to
the truth of a material averment made in the complaint”
to constitute denial, it must be shown that the defendant
indeed was in no position to know the truth of the
averment in the complaint. But if it can be demonstrated
that he in fact was in a position to know, then the denial
is ineffective and the averment is deemed admitted.
5. During the pre-trial stage;
As discussed before, in the pre-trial stage, there are
stipulations of facts. When one stipulate on a fact, that’s
already an admission. You don’t have to prove it
anymore, because it was already binding against the
party who admitted.
6. By silence;
Rule 130, Section 32. Admission by silence. - An act or
declaration made in the presence and within the hearing
or observation of a party who does or says nothing when
the act or declaration is such as naturally to call for action
or comment if not true, and when proper and possible for
him to do so, may be given in evidence against him. (23a)
7. Through others, as in the case of the exceptions to the RES
INTER ALIOS ACTA rule in evidence;

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
For example, made by your partner, co-conspirator or
agent. These are binding to you as exempted under the
RES INTER ALIOS ACTA rule.
8. Expressly in an answer to a request for admission under Rule
26;
9. Impliedly under Rule 26, Section 2.
If there is a request for admission, then you did not
answer that. You did not admit, you did not deny, you did
not object – that will be considered as an admission. Each
of the matter to which an admission is requested shall be
deemed admitted.
That’s the very important effect of failure to respond to a
request for admission. – THERE IS AN IMPLIED
ADMISSION.
Q: Can a party be made to admit the same allegation twice?
A: Yes. For example, there is an actionable document. Its
genuineness and due execution must be denied under oath in the
pleadings, otherwise its genuineness and due execution are
admitted. The adverse party may then ask the other to admit its
genuineness and due execution under oath using a request for
admission. This is not prohibited under the Rules. The same effect
applies. Failure to comply with Section 2 of Rule 26 amounts to an
implied admission. Thus, a party may, IN THEORY, be asked to admit
the same thing twice.
HOWEVER, TAKE NOTE OF:
PRISCILLA SUSAN PO v. COURT OF APPEALS
G.R. No. L-34341 | August 22, 1988
FACTS: The petitioner filed in 1971 a complaint for P35,000
damages against the private respondent Jose P. Mananzan. After
Mananzan had answered the complaint, petitioner served upon
him a request for admission.
On February 27, 1971, Mananzan asked for an extension of time to
answer the request for admission. The petitioner opposed the
motion for extension of time on account of alleged defects in the
notice of hearing.
On March 4, 1971, the petitioner filed a motion for summary
judgment on the ground that there exists no genuine or substantial
controversy on any issue of fact raised in the complaint because the
defendant, by failure to answer her request for admission within
the reglementary period (Sec. 2, Rule 26, Rules of Court) is deemed
to have admitted the facts set forth in the request.
On April 16, 1971, respondent Judge Lustre denied the motion for
summary judgment, observing that: "the interrogatories ... are
nothing but a reiteration of a portion of the plaintiff’s allegations in
the complaint, which have already been answered and denied by
the defendant in his answer" hence, they "need not be answered
again if asked in the form of interrogatories."
ISSUE: WON there is an implied admission. – NO!
HELD: An examination of petitioner's complaint and her request for
admission confirms Judge Lustre's finding (which the Court of
Appeals upheld) that the "fact" set forth in the request for
admission, including the amount of damages claimed, are the same
factual allegations set forth in her complaint which the defendant
either admitted or denied in his answer.
34
A party should not be compelled to admit matters of fact already
admitted by his pleading and concerning which there is no issue
(Sherr vs. East, 71 A2d 752, Terry 260, cited in 27 C.J.S. 91), nor
should he be required to make a second denial of those already
denied in his answer to the complaint.
A request for admission is not intended to merely reproduce or
reiterate the allegations of the requesting party's pleading but
should set forth relevant evidentiary matters of fact, or documents
described in and exhibited with the request, whose purpose is to
establish said party's cause of action or defense. Unless it serves
that purpose, it is, as correctly observed by the Court of Appeals,
"pointless, useless," and "a mere redundancy."
DISCUSSION
Actually, my observation here is that, of course, it could be possible
that your complaint, there are allegations there that you will put
again for admission. And again, the questions can be repeated, and
the defendant can be repeat on denying (or admitting).
Just take note that, the answer as a pleading does not have to be
under oath. It is only required to be under oath if there are
actionable document, which is attached to the complaint, because
you have to deny it under oath. Otherwise, again, you are deemed
to have admitted the genuineness and due execution of that
actionable document.
For a request for admission, your answers should be under oath.
So, how to reconcile? – Well, if you have an answer and it is not
under oath, (although you denied the matters set forth in the
complaint) and then there is another request for admission which
is served by the complainant against you as the defendant, now you
have to answer the request for admission under oath (deny or
admit).
You cannot say that you have already answered the same questions
raised in the request for admission when you filed your answer to
the complaint. Your answer (denials or admissions) are not under
oath. It should be under oath. That’s why you need to respond for
the request for admission under oath. Otherwise, you are deemed
to have admitted all the matters set forth in the request for
admission.
Q: Can a party to whom the request is directed answer a request
for admission through his lawyer? Can a lawyer answer a request
for admission on behalf of his client?
A: Yes.
LAÑADA v. COURT OF APPEALS
NESTLE PHILIPPINES VS. COURT OF APPEALS
February 1, 2002
Q: May the counsel of a party to whom a written request for
admission is addressed under Section 1, Rule 26 of the Rules of
Court, answer such request for his client? (YES)
FACTS: The issue for resolution thus calls for an interpretation
of the phrase “the party to whom the request is directed.” This
is not the first time that the Court is faced with the issue of
whether a party requested to make admissions may reply or
answer through his counsel. In PSCFC Financial Corporation v.
Court of Appeals (216 SCRA 838), the petitioner therein served
upon the Banco Filipino Savings and Mortgage Bank, a written
request for admission of the truth of certain factual matters.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Through Philip Sigfrid A. Fortun, who was not yet a lawyer when
Banco Filipino inaugurated its financing plan in 1968, Banco
Filipino made the requested admissions but denied that the
financing corporation had availed of the Home Financing Plan
subject of controversy. Obviously objecting to the reply, the
petitioner therein made a second request for admission. In
resolving the issue of whether or not the answer to the request
for admission under Rule 26 “should be made by the party
himself and nobody else, not even his lawyer,” the Court issued
a Resolution stating as follows:
ISSUE: WON the answer to the request for admission under Rule
26 should be made by the party himself and nobody else, not
even his lawyer. – NO!
HELD: The argument is untenable.
RULE 138, SECTION 21. Authority of attorney to appear. – An
attorney is presumed to be properly authorized to represent any
cause in which he appears, and no written power of attorney is
required to authorize him to appear in court for his client.
Petitioner has not shown that the case at bar falls under any of
the recognized exceptions as found in Art. 1878 of the Civil Code
which enumerates the instances when special powers of
attorney are necessary, or in Rule 20 of the Rules of Court on
pre-trial where the parties and their attorneys are both directed
to appear before the court for a conference; so that for counsel
to appear at the pre-trial in behalf of his client, he must clothe
the former with an adequate authority in the form of a special
power of attorney or corporate resolution.
RULE 138, SECTION 23 provides that “attorneys have authority
to bind their clients in any case by any agreement in relation
thereto made in writing, and in taking appeals, and in all matters
of ordinary judicial procedure x x x .”
Thus, when Rule 26 states that a party shall respond to the
request for admission, it should not be restrictively construed to
mean that a party may not engage the services of counsel to
make the response in his behalf. Indeed, the theory of petitioner
must not be taken seriously; otherwise, it will negate the
principles on agency in the Civil Code, as well as Sec. 23, Rule
138, of the Rules of Court.
Nonetheless, even assuming arguendo that Atty. Philip Sigfrid
Fortun overstepped his authority, it is only his client, respondent
Banco Filipino, which has the prerogative to impugn his acts and
not petitioner, the adverse party. Interestingly, Banco Filipino
has not objected to the response made by its counsel in its
behalf.
In the case at bar, neither is there a showing that petitioners
Nestle and Santos did not authorize their respective counsel to
file in their behalf the respective answers requested of them by
private respondents in the latter’s written request for
admission. As this Court has said, there is no reason to strictly
construe the phrase “the party to whom the request is directed”
to refer solely or personally to the petitioners themselves.
DISCUSSION
In short, if there is a request for admission, supposedly the one who
should answer is the party. But if it is the lawyer who answered such
35
on behalf of the party, there is no problem. Unless however, if it is
the client himself who will object to such answer by his lawyer.
That is the rule for a request for admission which is answered by
the counsel.
Q: If a lawyer is allowed to make the answer, can the request for
admission be served upon him instead?
A: No.
SALVADOR D. BRIBONERIA vs. COURT OF APPEALS
G.R. No. 101682 | December 14, 1992
Under Section 1, Rule 26 of the Rules of Court, the request for
admission must be served directly upon the party; otherwise,
the party to whom the request is directed cannot be deemed to
have admitted the genuineness of any relevant document in and
exhibited with the request or relevant matters of fact set forth
therein, on account of failure to answer the request for
admission.
DISCUSSION
You have to file your request for admission to the party himself, and
not to his lawyer. It is up to him if he will answer that on his own or
he will give it to his lawyer to relay the answer.
This is one of the instances where a notice to the lawyer does not
bind the client. As discussed before, the general rule is that notices,
papers, etc. must be served to the lawyer, and not to the client if
the latter is represented by a counsel. So notice to the client is not
notice to the lawyer. It will not prejudice the client. Notice to the
lawyer is a notice to the client; it is binding against the client. But if
it is a request for admission, notice to the lawyer alone without
notifying the client is not binding against the client or the party.
GR: Notice to the lawyer is a notice to the client; it is binding
against the client.
XPN: If it is a request for admission, notice to the lawyer alone
without notifying the client is not binding against the client or
the party.
DISTINCTIONS BETWEEN INTERROGATORIES TO PARTIES AND
REQUEST FOR ADMISSION
INTERROGATORIES TO REQUEST FOR ADMISSION
PARTIES RULE 25 RULE 26
In Both, any objection to the questions are submitted directly
to the court.
In Both, the answers may be deferred pending the court’s
ruling of the objections.
The period to object is 10 days The period to object is not less
after service of the than 15 days from the date of
interrogatories. service of the request for
admission.
Period to answer may be Period to answer may be
shortened or extended extended but not shortened.
Rule 26, Section 3. 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.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
As we already said, when there is admission, it is already binding
against the admitter but what is the extent of such admission? The
rule says that it is the purpose of the pending action only and shall
not constitute an admission by him or her for any other purpose
nor the same be used against him in any other proceeding.
Meaning, there is an exclusive use of the admission made, only for
that action and not in another proceeding.
EXCLUSIONARY RULE OF EVIDENCE
Section 3 provides that 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 for any other purpose
nor may the same be used against him in any other proceeding.
DISCUSSION
Take note against of the nature of the admission made under rule
26, it is exclusive only for that proceeding. Remember also that in
rule 23, deposition. The deposition is not only limited to that certain
proceeding. A deposition under section 5 of rule 23 may still be
used notwithstanding:
1. The substitution of parties; and
2. The dismissal of the action and subsequent filing of
another action involving the same subject between the
same parties or representatives or successors-in-interest.
All depositions lawfully taken and duly filed in the former action
may still be used in another/ subsequent action as if originally taken
therefrom. This is not in section 3 Rule 26, so we can say that
Section 3 of Rule 26 is an exclusionary rule of evidence.
Rule 26, Section 4. Withdrawal – The court may allow the party
making an admission under this Rule whether express or
implied, to withdraw or amend it upon such terms as may be
just.
DISCUSSION
Can you still withdraw the admission whether it is express or
implied admission? Yes, under section 4 it provides that the court
may allow the party making an admission under rule 26 to
withdraw or amend the admission. Now what are those terms that
may be just, or which would justify the withdrawal or amendment
of the admission? We can relate this to section 4 of Rule 129 on
Judicial Admission. Actually, if you make an admission, it may be
contradicted by showing that it was made through palpable
mistake or that no such admission has been made. In relation to
rule 129, you can withdraw or amend such admission upon showing
that it was made through palpable mistake or that there is no
admission made in the first place. Just remember that when you
withdraw or amend your answers to the request for admission, it
requires leave of court. it is because the rule says, “may allow”,
meaning it is discretionary, you have to file a motion, you have to
ask for leave of court.
Rule 26 Section 5. Effect of failure to file and serve request for
admission.—Unless otherwise allowed by the court for good
cause shown and to prevent a failure of justice, a party who fails
to file and serve a request for admission on the adverse party of
material and relevant facts at issue which are, or ought to be,
within the personal knowledge of the latter, shall not be
permitted to present evidence on such facts.
DISCUSSION
What is the effect if you failed to file and serve a request for
admission? Please take note of section 5. Failure to file and serve a
36
request for admission on the adverse party, it has the effect of
barring you from later on presenting evidence on such facts. This is
a very harsh consequence, example: Let’s say there is a fact that the
plaintiff wants to prove, and he knows that it is within the
knowledge of the defendant. Under Rule 26, the plaintiff has to
send the defendant a request for admission. Suppose the plaintiff
did not send the defendant a request for admission because
according to the plaintiff, he will just prove this during the trial.
Now, during trial the adverse party can actually object because
under section 5, the plaintiff cannot present evidence to prove
something which the defendant could have admitted in a request
for admission. This is something which the party could have
admitted had the other party resorted to a request for admission
under rule 26. So, because the plaintiff did not serve a request for
admission upon the defendant, the defendant can now prevent him
from proving such particular fact. This is a very dangerous provision
because it practically places the other party in estoppel.
The adverse party can therefore bar the other from proving
anything simply because he failed to avail of the modes of
discovery. However, the Rules allow an exception: “Unless
otherwise allowed by the court for good cause and to prevent a
failure of justice.”
What if denied by the defendant in his answer, still need to send
request for admission?
DISCUSSION
There is an exception, take note unless otherwise allowed by the
court for good cause shown and to prevent a failure of justice. So
you have to prove to the court or pray to the court to allow you to
present evidence on this fact otherwise there will be failure of
justice.
Q: Now what if those matters had already been denied by the
defendant in his answer? Do you still need to send request for
admission?
A: As already mentioned, if the answer of the defendant is not
under oath then you need to send a request for admission because
the answer in a request for admission has to be under oath. So the
answers in the answer, the admissions, denials in the answer will
not serve the same purpose as the answer to the request for
admission if the answer itself is not under oath.
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
Rule 27 Section 1. Motion for production or inspection; order.
– Upon motion of any party showing good cause therefor, the
court in which an action is pending may
(a) order any party to produce and permit the inspection and
copying or photographing, by or on behalf of the moving party,
of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things not privileged, which
constitute or contain evidence material to any matter involved
in the action and which are in his or her possession, custody or
control; or
(b) order any party or 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.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
DISCUSSION
In so far as this motion for Production or inspection is concerned
the following are the two purposes by which a party is allowed to
seek an order from the court in which the action is pending,
meaning we presuppose here that there is already an action that is
ongoing, so what are the purposes of this mode of discovery?
The purpose of this mode of discovery is to allow a party to seek
an order from the court in which the action is pending to:
a) Order any party to produce and permit the inspection
and copying or photographing, by or on behalf of the
moving party, of any designated documents, papers,
books, accounts, letters, photographs, objects or
tangible things, not privileged, which constitute or
contain evidence material to any matter involved in
the action and which are in his possession, custody or
control;
b) Order any party to permit entry upon designated land
or other property in his/her possession or control for
the purpose of inspecting, measuring, surveying, or
photographing the property or any designated
relevant object or operation thereon.
Rule 27 sets an unequivocal proviso that the documents, papers,
books, accounts, letters, photographs, objects or tangible things
that may be produced and inspected SHOULD NOT BE
PRIVILEGED.
SEE: AIR PHILIPPINES CORPORATION vs. PENNSWELL, INC.
(G.R. No. 172835, December 13, 2007)
DISCUSSION
Please again take note that the documents, papers, etc., that may
be produced and inspected under Rule 27 must not be privileged
against disclosure. On the ground of public policy, the rules must
only be limited to those which are not confidential and which are
not privileged in character because even this evidence cannot be
admitted also. This condition is in addition to the requisite that
items must be specifically described so that you will not inspect or
remove or get any other items. It must be described, and must
consititute or contain evidence that is material to any matter
involved in the action. Again, materiality, meaning not just any
document because even if it is described, if it is not material to the
case, then you cannot ask for the production of that document. And
which are in the parties’ custody or control. Of course, why would
you ask for an order if the custody is not with them? It’s going to be
useless.
A party may be compelled to produce or allow the inspection of
documents if six procedural requisites are complied with, viz.:
1. The party must file a motion for the production or
inspection of documents or things, showing good cause
therefor;
2. Notice of the motion must be served to all other parties
of the case;
3. The motion must designate the documents, papers,
books, accounts, letters, photographs, objects or tangible
things which the party wishes to be produced and
inspected;
4. Such documents, etc. are not privileged;
5. Such documents, etc. constitute or contain evidence
material to any matter involved in the action; and
6. Such documents, etc. are in the possession, custody or
control of the other party.
37
SEE: SECURITY BANK CORPORATION vs. COURT OF APPEALS
(G.R. No. 135874, January 25, 2000)
“MODE OF DISCOVERY”
UNDER THE AMPARO RULE
GEN. ALEXANDER B. YANO vs. SANCHEZ and MEDINA
G.R. No. 186640, February 11, 2010
In line with this, Section 14 of the Amparo Rule provides for
interim or provisional reliefs that the courts may grant in order
to, inter alia, protect the witnesses and the rights of the parties,
and preserve all relevant evidence, viz:
SEC. 14. Interim Reliefs. — Upon filing of the petition or at
anytime before final judgment, the court, justice or judge may
grant any of the following reliefs:
(b) Inspection Order. — The court, justice or judge, upon verified
motion and after due hearing, may order any person in
possession or control of a designated land or other property, to
permit entry for the purpose of inspecting, measuring, surveying,
or photographing the property or any relevant object or
operation thereon.
The motion shall state in detail the place or places to be
inspected. It shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the enforced
disappearance or whereabouts of the aggrieved party.
If the motion is opposed on the ground of national security or of
the privileged nature of the information, the court, justice or
judge may conduct a hearing in chambers to determine the merit
of the opposition.
The movant must show that the inspection order is necessary to
establish the right of the aggrieved party alleged to be
threatened or violated.
The inspection order shall specify the person or persons
authorized to make the inspection and the date, time, place and
manner of making the inspection and may prescribe other
conditions to protect the constitutional rights of all parties. The
order shall expire five (5) days after the date of its issuance,
unless extended for justifiable reasons.
(c) Production Order. — The court, justice, or judge, upon verified
motion and after due hearing, may order any person in
possession, custody or control of any designated documents,
papers, books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or electronic form, which
constitute or contain evidence relevant to the petition or the
return, to produce and permit their inspection, copying or
photographing by or on behalf of the movant
The motion may be opposed on the ground of national security
or of the privileged nature of the information, in which case the
court, justice or judge may conduct a hearing in chambers to
determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to
protect the constitutional rights of all the parties.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
DISCUSSION
Under the Amparo Rule, there is a more or less similar rule. It’s in
Section 14, the interim reliefs, the inspection order. It is basically
the same but it requires a verified motion and after due hearing any
person is possession or control of a designated land, to permit entry
for the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or operation
thereon, so more or less the same with Rule 27.
DISTINCTIONS
Production or Inspection of Subpoena Duces Tecum
Documents or Things under under Rule 21
Rule 27
A mode of discovery A means of compelling
production of evidence which
must be brought to court
Limited to parties in the action May be directed to any
person, whether a party or not
The order under Rule 27 is A subpoena duces tecum
issued only upon motion with under Rule 21 may be issued
notice to the adverse party. upon an ex-parte application.
EAGLERIDGE DEVELOPMENT CORPORATION vs. CAMERON
GRANVILLE 3 ASSET MANAGEMENT, INC.
G.R. No. 204700, November 24, 2014
The availment of a motion for production, as one of the modes
of discovery, is not limited to the pre-trial stage. Rule 27 does
not provide for any time frame within which the discovery mode
of production or inspection of documents can be utilized. The
rule only requires leave of court "upon due application and a
showing of due cause."
Since the rules are silent as to the period within which modes of
discovery (in that case, written interrogatories) may still be
requested, it is necessary to determine: (1) the purpose of
discovery; (2) whether, based on the stage of the proceedings
and evidence presented thus far, allowing it is proper and would
facilitate the disposition of the case; and (3) whether substantial
rights of parties would be unduly prejudiced. This court further
held that "[t]he use of discovery is encouraged, for it operates
with desirable flexibility under the discretionary control of the
trial court."
Therefore, it should have just been filed as a separate action.
INSIGNE, ET. AL. vs. ABRA VALLEY COLLEGES, INC.
G.R. No. 204089, July 29, 2015
The petitioners filed a Motion for Production/Inspection of
Documents, asking that the RTC direct the respondents to
produce Abra Valley’s Stock and Transfer Book (STB); and that
petitioners be allowed to inspect the same.
Petitioners alleged that considering that Abra Valley’s STB was
not in the possession of the petitioners, or at their disposal, they
could not be reasonably expected or justly compelled to prove
that their stock subscriptions and purchases were recorded
therein. This, more than any other, was precisely why they filed
38
their Motion for Production/Inspection of Documents to compel
the respondents to produce the STB.
The RTC did not act on the motion on the ground that "the Stock
and Transfer Book is one of the corporate books which may be
examined only by a stockholder-of-record."
Ruling:
The RTC is wrong. The rules of discovery, including Section 1,
Rule 27 of the Rules of Court governing the production or
inspection of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things not
privileged, which contain or constitute evidence material to any
matter involved in the action and which are in the other party’s
possession, custody or control, are to be accorded broad and
liberal interpretation.
What is chiefly contemplated is the discovery of every bit of
information which may be useful in the preparation for trial,
such as the identity and location of persons having knowledge
of relevant facts; those relevant facts themselves; and the
existence, description, nature, custody, condition, and location
of any books, documents, or other tangible things. Hence, the
"deposition-discovery rules are to be accorded a broad and
liberal treatment. No longer can the time-honored cry of ‘fishing
expedition’ serve to preclude a party from inquiring into the
facts underlying his opponent’s case.
Mutual knowledge of all the relevant facts gathered by both
parties is essential to proper litigation. To that end, either party
may compel the other to disgorge whatever facts he has in his
possession. The deposition-discovery procedure simply
advances the stage at which the disclosure can be compelled
from the time of trial to the period preceding it, thus reducing
the possibility, of surprise,".
In light of the foregoing, the RTC should have favorably acted on
the petitioners’ Motion for Production/Inspection of
Documents in order to enable the petitioners, consistent with
the recognized privileges and disabilities, to enable them to
obtain the fullest possible knowledge of the issues and facts to
be determined in Special Civil Action Case No. 2070, and thereby
prevent the trial from being carried on in the dark, at least from
their side.
Doing so would not have caused any prejudice to the
respondents, for, after all, even had the petitioners not filed
the Motion for Production/Inspection of Documents, the
respondents would themselves also be expected to produce the
STB in court in order to substantiate their affirmative defense
that the petitioners were not stockholders-of-record of Abra
Valley.
Verily, that there was no entry or record in the STB showing the
petitioners to be stockholders of Abra Valley was no valid
justification for the respondents not to produce the same.
Otherwise, the disputable presumption under Section 3 (e) of
Rule 131 of the Rules of Court that "evidence willfully
suppressed would be adverse if produced" could arise against
them.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
SECTION 1. When examination may be ordered.— 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.
DISCUSSION
APPLICABILITY
Q: When shall an examination be ordered?
A: It is when the mental or physical condition of a party is in
controversy. So, there should be a motion to compel the mental or
physical examination to know the mental or physical condition of
the party because the rule says “the court in its discretion”
Q: What are these particular cases where the mental or physical
condition is in controversy?
A: The following are the cases:
This mode of discovery applies to an action in which the mental or
physical condition of a party is in controversy (Sec. 1, Rule 28, Rules
of Court). Examples of this action would be:
1. An action for annulment of a contract where the ground
relied upon is insanity or dementia;
2. A petition for guardianship of a person alleged to be
insane;
3. An action to recover damages for personal injury where
the issue is the extent of the injuries of the plaintiff;
4. Action for declaration of nullity of marriage on the ground
of psychological incapacity;
5. Action for annulment under Article 45 of the Family Code
on the grounds of insanity, physically incapacity of
consummating the marriage with the other and such
incapability continues and appears to be incurable and
affliction with a sexually-transmissible disease found to
be serious and appears to be incurable;
6. An action for damages based on quasi-delict that led to
physical injuries
SECTION 2. Order for examination – The order for examination
may be made only on motion for good cause shown and upon
notice to the party to be examined and to all other parties, and
shall specify the time, place, manner, conditions and scope of
the examination and the person or persons by whom it is to be
made.
SECTION. 3. Report of findings—
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. 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,
39
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.
(3a)
DISCUSSION
----------------------------------------------------------------------------------------
Meaning of Sec. 3.
Example: A files a case against B for declaration of nullity of
marriage on the ground of psychological incapacity of B.
In that particular case, for example, A files a motion in court for the
mental examination of B, and the court granted the mental
examination of B, the respondent. Then the psychiatrist/
psychologist conducts the examination on B, then the results are
released. B requested a copy of the psychological evaluation report.
Once A gives B a copy of the results and findings of the
psychological examination conducted on B, what is now the
consequence? A may now ask B for a copy of any examination
conducted before or after of the same mental condition. B cannot
say he will not give A copies of such for the reason that it is privilege
communication (in reality, it is privilege communication).
Here, we are applying the rule on physical or mental examinations
of persons under Rule 28. B cannot refuse to furnish A copies of any
examination he underwent before and after he undergoes the
examination requested by A.
For example, B does not give copies of the results of the
psychological examination. the rule says that the court on motion
and notice may make an order requiring delivery. He may be
compelled to deliver to A a copy of such medical report, or if the
physician of B does not want to make the report later on, and B
wants to prove that he is not psychologically incapacitated,
although the results of the mental examination conducted by the
doctor, which was acquired by A from the motion she had filed for
the mental examination of B, it showed that B is psychologically
incapacitated. But the psychological examination that B went
through on his own, it showed that he was not psychologically
incapacitated. A now asks for a copy of the examination that B had
conducted through his own efforts.
To dispute the result of the medical examination which was
requested by A, B will present his doctor or his result. He cannot do
that. That is the consequence. B cannot present testimony of his
doctor because he did not furnish A a copy of his results when she
asked for such.
PROCEDURE
A motion must be filed showing good cause for the examination,
with notice to the other parties as well aside from the party to be
examined. The motion shall likewise specify the time, place,
manner, conditions and scope of the examination and 'by the
person or persons by whom it is made (Sec. 2, Rule 28, Rules of
Court).
The party examined may request the party causing the examination
to be made to deliver to him a copy of a detailed written report of
the examining physician setting out his 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. If the party
examined refuses to deliver the report, the court may make an

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
order requiring the delivery on such terms as are just. If it is the
physician who fails or refuses to make a report, the court may
exclude his testimony (Sec. 3, Rule 28, Rules of Court).
SEC. 4. Waiver of privilege. — 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. (4a)
DISCUSSION
Are you familiar with, for example, patient-physician privileged
communication? For example, you have an examination done with
a doctor, the doctor cannot divulge the result of that examination
without your consent as the patient.
In this Section 4, in effect, there is a waiver of the privilege in
relation to Section 3 which we already discussed. Again, in my
example, we have A and B and then on motion of A, he compelled
the mental examination of B, B now asked for a copy of the results
of the mental examination conducted on him on motion of A. Under
Section 4, by requestion and obtaining a report of the examination
so ordered, B now waives any privilege which he may have in that
action or any other case regarding the testimony of every other
person who has examined like in my example, even before the case
that B has obtained a check-up or mental examination or
psychiatric examination already and there is a result already, B
cannot invoke the privileged communication anymore. If A asks for
a copy of the results of that previous examination conducted on B
even before the case was filed but relating to the same mental
condition, he cannot invoke the rule on privilege examination
anymore or any other examination conducted thereafter.
Again, “by requesting and obtaining a report of the examination so
ordered or by taking the deposition of the examiner”, with the same
illustration, this time, after B was examined on order of the court
by motion of A, B takes the deposition of the doctor, he motioned
to take the deposition of that doctor who examined him upon
motion of A. By taking the deposition of that doctor, B waives the
privilege which he may have in that case or in any other case which
involves the same mental condition, for example. He cannot invoke
the patient-physician privilege. A now has access and can now take
or request for the copy of all the mental examinations conducted
by any other doctor upon B. Again, under these the two conditions:
1. B requested a report of the examination made upon him
by order of the court; or,
2. If B took the deposition of the examiner or doctor who
conducted the examination upon him.
40
RULE 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY
Under Rule 29, we have here the consequences of refusal to comply
with the modes of discovery. Just read the different sections and in
Section 3, we have there an illustration of a case showing you what
are the possible sanctions. At the end, we also have a summary of
all the consequences of refusal to comply with the modes of
discovery. Just familiarize yourself with those consequences.
SEC. 1. Refusal to answer.— If a party or other deponent
refuses to answer any question upon oral examination, the
examination may be completed on other matters or adjourned
as the proponent of the question may prefer. The proponent
may thereafter apply to the proper court of the place where the
deposition is being taken, for an order to compel an answer. 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. (1)
SEC. 2. Contempt of court.— If a party or other witness refuses
to be sworn or refuses to answer any question after being
directed to do so by the court of the place in which the
deposition is being taken, the refusal may be considered a
contempt of that court. (2)
Just take note that there are two kind of contempt:
1. Direct Contempt
2. Indirect Contempt
When you say Direct Contempt of Court, the refusal or the
disobedience is being done in the presence of or so near a judge.
You are shouting inside the court and you are not respecting it.
Indirect Contempt, which we’ll discuss also in Section 3, means that
it is not committed in the presence of a judge or the court. Like for
example, refusal to comply with a subpoena or refusal to follow or
obey any order of the court, like in Rule 39 on execution, so there
are also cases there where the sanction would be indirect
contempt. Now, when you say indirect contempt, it is either the
court holds you in contempt moto proprio – on its own, without any
motion on your part – or it could be by petition where the aggrieved
party files a petition to cite the disrespectful party in indirect
contempt of court.
SEC. 3. Other consequences.— If any party or an officer or
managing agent of a party refuses to obey an order made under
Section 1 of this Rule requiring him or her to answer designated

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
questions, or an order under Rule 27 to produce any document
or other thing for inspection, copying, or photographing or to
permit it to be done, or to permit entry upon land or other
property, or an order made under Rule 28 requiring him or her
to submit to a physical or mental examination, the court may
make such orders in regard to the refusal as are just, and among
others the following:
(a) An order that the matters regarding which the
questions were asked, or the character or description
of the thing or land, or the contents of the paper, or
the physical or mental condition of the party, or any
other designated facts shall be taken to be established
for the purposes of the action in accordance with the
claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to
support or oppose designated 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;
(c) (c) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed,
or dismissing the action or proceeding or any part
thereof, or rendering a judgment by default against
the disobedient party; and
(d) (d) In lieu of any of the foregoing orders or in addition
thereto, an order directing the arrest of any party or
agent of a party for disobeying any of such orders
except an order to submit to a physical or mental
examination. (3a)
CAPITOL HILLS GOLF & COUNTRY CLUB, INC. vs. SANCHEZ
G.R. No. 182738 | February 24, 2014
FACTS: During the January 11, 2007 inspection, the only
document produced by the Acting Corporate Secretary, Atty.
Antonio V. Meriz, and one of the staff, Malou Santos, was the
Stock and Transfer Book of the Corporation. They alleged that
they could not find from the corporate records the copies of the
proxies submitted by the stockholders, including the tape
recordings taken during the stockholders’ meetings, and that
they needed more time to locate and find the list of stockholders
as of March 2002, which was in the bodega of the Corporation.
This prompted respondent to file a Manifestation with
Omnibus Motion praying that an order be issued in accordance
with Section 3, Paragraphs (a) to (d) of Rule 29 of the Rules of
Court (Rules), in relation to Section 4, Rule 3 of the Interim
Rules of Procedure Governing Intra-Corporate Controversies
under Republic Act No. 8799 (Interim Rules).
On September 3, 2007, the trial court issued a Resolution, the
concluding portion of which ordered the defendants to
produce and make available for inspection and photocopying
by the plaintiff the following documents:
1. The list of stockholders of record as of March 2002;
2. All proxies, whether validated or not, which have been
received by the defendants;
3. The specimen signatures of all stockholders as
contained in the Stock and Transfer Book or on the
stub of the stock certificate; and
4. The tape recording of the stockholders’ meeting on
April 23, 2002 and May 21, 2002.
41
The Court ordered the defendants to strictly comply with the
order. Failure of the defendants to comply with all the
requirements of the order dated September 10, 2002 will result
in the court citing all the defendants in contempt of court and
to order defendants solidarily to pay a fine of ₱10,000.00 for
every day of delay to comply with the order of September 10,
2002 until the defendants shall have fully and completely
complied with the said order.
ISSUE: Is the order providing for contempt and payment of fine
valid?
RULING: Yes, the order is valid.
A person guilty of disobedience of or resistance to a lawful order
of a court or commits any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade the administration of
justice may be punished for indirect contempt. In particular,
Section 4, Rule 3 of the Interim Rules states that, in addition to
a possible treatment of a party as non-suited or as in default, the
sanctions prescribed in the Rules for failure to avail of, or refusal
to comply with, the modes of discovery shall apply. Under
Section 3, Rule 29 of the Rules, if a party or an officer or
managing agent of a party refuses to obey an order to produce
any document or other things for inspection, copying, or
photographing or to permit it to be done, the court may make
such orders as are just. The enumeration of options given to the
court under Section 3, Rule 29 of the Rules is not exclusive, as
shown by the phrase "among others."
To ensure that availment of the modes of discovery is otherwise
untrammeled and efficacious, the law imposes serious sanctions
on the party who refuses to make discovery, such as dismissing
the action or proceeding or part thereof, or rendering judgment
by default against the disobedient party; contempt of court, or
arrest of the party or agent of the party; payment of the amount
of reasonable expenses incurred in obtaining a court order to
compel discovery; taking the matters inquired into as
established in accordance with the claim of the party seeking
discovery; refusal to allow the disobedient party support or
oppose designated claims or defenses; striking out pleadings or
parts thereof; staying further proceedings.
If adjudged guilty of indirect contempt, the respondent who
committed it against a Regional Trial Court or a court of
equivalent or higher rank may be punished with a fine not
exceeding thirty thousand pesos, or imprisonment not
exceeding six (6) months, or both. In this case, the threatened
sanction of possibly ordering petitioners to solidarily pay a fine
of ₱10,000.00 for every day of delay in complying with the
September 10, 2002 Order is well within the allowable range of
penalty.
DISCUSSION
In the enumeration of sanctions, there is contempt. “Contempt”
here is actually indirect contempt because it is not committed in
the presence of a judge.
SECTION 4. Expenses on 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,

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
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.
SECTION 5. Failure of party 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
the action or proceeding or any part thereof, or enter a
judgment by default against the party, and in its discretion,
order him or her to pay reasonable expenses incurred by the
other, including attorney’s fees. (5a)
SECTION 6. Expenses against the Republic of the Philippines. —
Expenses and attorney’s fees are not to be imposed upon the
Republic of the Philippines under this Rule. (6)
REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY
The sanctions for refusal to comply with the modes of discovery
may be summarized as follows:
A. Refusal to answer any question
a. The court may upon proper application, compel a
deponent who refuses to answer an oral
examination. The same applies to a witness who
refuses to answer an interrogatory submitted (Sec.
1, Rule 29, Rules of Court). A refusal to answer after
being directed by the court may be considered as a
contempt of court (Sec. 2, Rule 29, Rules of Court).
The court may order the deponent, a party, or the
counsel advising the refusal, or both of them, to pay
the proponent the amount of reasonable expenses
incurred in obtaining the order, including attorney's
fees (Sec. 1, Rule 29, Rules of Court).
b. If the application for an order to compel a deponent
to answer is denied because of the absence of a
substantial justification, the court may require the
proponent or the counsel advising the application,
or both of them, to pay to the refusing party or
deponent the amount of reasonable expenses
incurred in opposing the application, including
attorney's fees (Sec. 1, Rule 29, Rules of Court).
B. Refusal to answer designated or particular questions or
refusal to produce documents or things or to submit to
physical or mental examination
a. The court may order that the matters regarding
which the questions were asked shall be taken as
established for purposes of the action in accordance
with the claim of the party obtaining them (Sec. 3[a],
Rule 29, Rules of Court).
42
b. The court may issue an order refusing to allow the
disobedient party to refuse or support designated
claims or defenses or prohibiting him from
introducing in evidence designated documents or
things or items of testimony, or from introducing
evidence of physical or mental condition (Sec. 3[b],
Rule 29, Rules of Court).
c. The court may issue an order striking out pleadings
or parts thereof, or staying further proceedings until
the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a
judgment by default against the disobedient party
(Sec. 3[c], Rule 29, Rules of Court).
d. The court may direct the arrest of any party or agent
of a party for disobeying any of the orders of the
court, except an order to submit to a physical
examination.
C. Refusal to be sworn
A refusal of a party to be sworn after being directed by
the court may be considered as contempt of court (Sec.
2, Rule 29, Rules of Court).
D. Refusal to admit
If a party refuses to admit the genuineness of any
document or the truth of any matter of fact and serves a
sworn denial thereof and if the other party later on
proves the genuineness of the document or the truth of
such matter of fact, the court upon proper application,
may order the former to pay the reasonable expenses in
making such proof, including attorney's fees (Sec. 4, Rule
29, Rules of Court).
E. Failure to attend depositions or to serve answers to
interrogatories
The court may:
(a) strike out all or any part of the pleading of that party,
or dismiss the action or proceeding or any part
thereof, or
(b) enter a judgment by default against that party, and
in its discretion,
(c) order him to pay reasonable expenses incurred by
the other, including attorney's fees (Sec. 5, Rule 29,
Rules of Court).
The consequences under Sec. 5 of Rule 29 will apply if a
party refuses to answer the whole set of written
interrogatories, and not just a particular question. Where
the party upon whom the written interrogatories is
served, refuses to answer a particular question in the set
of written interrogatories and despite an order
compelling him to answer the particular question, still
refuses to obey the order, Sec. 3(c) of Rule 29 will apply
(ZEPEDA vs. CHINA BANKING CORPORATION, G.R. No.
172175, October 9,2006).
The following are the consequences provided for in Sec. 3(c) of Rule
29:
(a) The court may issue "an order striking out pleadings or
parts thereof;
(b) The court may issue an order staying further proceedings
until the order is obeyed; or
(c) The court may issue an order rendering a judgment by
default against the disobedient party.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
The matter of how, and when, the above sanctions should be
applied is one that primarily rests on the sound discretion of the
court where the case is pending, having always in mind the
paramount and overriding interest of justice. For while the modes
of discovery are intended to attain the resolution of litigations with
great expediency, they are not contemplated, however, to be
ultimate causes of injustice. It behooves trial courts to examine well
the circumstances of each case and to make their considered
determination thereafter (Zepeda vs. China Banking Corporation,
supra).
43
RULE 30
TRIAL
STAGES IN LITIGATION
1. Preparation and Filing Stage - The plaintiff gathers his initial
evidence, causes the preparation of his complaint and files it.
DISCUSSION
Remember that the judiciary is initially a passive system, that unless
there is a plaintiff who wants to file a case, meaning if there is no
plaintiff, there is no case. Therefore, what does the plaintiff do in
order to set the judicial machinery in motion? Of course, if he
intends to file a case, he needs to gather his initial evidence. What
would be the evidence? What testimony would he need? What
documents would he need in order to credibly file his case in court
especially now with the requirement that the case you file must
already include the evidence and that your judicial affidavits should
already be attached. The plaintiff also preferably goes to a lawyer
for the preparation of his complaint ad then he files his complaint.
That actually ends the preparation stage.
But now, it is takes much longer time. Why? Because again you
need to have your judicial affidavits prepared already. You must
know already, when you file the case, who are your witnesses and
what are your evidences or objects.
What follows after preparation and filing?
2. Pleading Stage – This begins with service of summons, filing of
allowed motions and responsive pleadings and culminating in
the filing of the last pleading. Litigation can end here.
DISCUSSION
This is where we devote most of our rules, in the pleading stage.
Because it begins with the service of summons (Rule 14), the filing
of allowed motions (Rule 15), and responsive pleadings, so what are
the pleadings allowed by the court? And then culminating in the
filing of the last pleading and we know that to be normally, a reply.
Only when the answer alleges an actionable document because
then, you need to deny the genuineness and due execution of the
actionable document attached in the answer.
And if there is an actionable document that is pleaded in the reply,
you can also file a rejoinder. But you need to remember that even
if it’s still the pleading stage, litigation can actually end there.
For example, you filed a complaint and you did not attach or comply
with the rule on certification against forum shopping, what would
be the effect? The court can dismiss the case. If the defendant, for
example, files a motion to dismiss based on the four grounds under
Rule 15, Sec. 12, then what will happen? Litigation can actually end
there, even without progressing to the next stage, which is pre-trial.
3. Pre-trial – Pre-trial can lead to the end of litigation without
going to the next phase.
DISCUSSION
We know the purposes of pre-trial, part of which, as we know, is
the simplification of issues, exploring the possibility of amicable
settlement, in fact the court can actually declare that the case can
actually be decided under Rule 34 or 35, judgement on the
pleadings or summary judgement. And then, it could end there. It
is possible that in the pre-trial, it will already end there.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Remember that among all these stages, you always apply Rule 17,
plaintiff can file a notice of dismissal, or the case can be dismissed
due to the fault of the plaintiff under Rule 17, Sec. 3.
So, it is not automatic that we go through all the stages of litigation.
Assuming that the case will proceed after pre-trial, that is where
trial begins.
4. Trial – The parties present their evidence. The Rules of
Evidence (i.e., officers and objections) regulates what happens
in this stage.
DISCUSSION: This is where the parties actually present their
evidence already in support of their cause of action or defense
respectively. What we need to remember here is the fact that when
it comes to trial, it will always be the Rules of Evidence that is
supreme. That regulates what happens in the trial stage in
litigation.
FROM TRIAL:
1. Trial
The trial has already ended. There is no presentation of evidence
anymore. Definitely, the Court is ready to render judgment (that is
under Rule 36).
After the parties present their evidence, the next phase would be:
2. Judgement – The court will consider the evidence
presented by the parties and proceed to determine which
among them is entitled to prevail.
DISCUSSION
An exception there would be when the Court would look at only the
evidence of the plaintiff as when the defendant is declared in
default.
After judgement what happens? Of course, there will be a
prevailing and a losing party. When there is already a judgment, can
the losing party still do something? Yes. We call that the post-
judgement or the remedies after the judgement has already been
rendered.
3. Post-Judgement – The losing party can avail of several
remedies like appeal, review, new trial or consideration,
relief from judgement, annulment of judgement and the
Rule 65 petitions.
DISCUSSION
Certiorari, prohibition, mandamus, it can be availed of because
there is already a judgment.
Assuming that all these appeal, review, new trial, reconsideration
and etc are resolved, what will happen? So, let us leave it hanging
for now.
Now, assuming as well that after judgment there is no post
judgment remedy that was availed of by the party, you actually still
reach the same stage. In other words, whether there is a judgment
that was not appealed and therefore became final or there is post
judgment that was taken and yet you still lost. What would be the
effect now?
44
4. Execution – This is the stage when the judgment is
satisfied, whether post-judgment remedies are availed
of.
Now we have execution stage or the stage when the judgment is
actually satisfied. So, if the defendant was ordered to pay Php 1M,
that is the time he is obliged to pay that order.
We will go to that when we reach rule 39 which is one of the most
difficult rules to discuss in all civil procedure.
Now, let us go to Rule 30, and it talks about trial.
DEFINITION OF TRIAL
According to Black’s Law Dictionary, TRIAL is the judicial
examination, in accordance with law, of a cause either civil or
criminal, of the issues between the parties, whether of law or fact,
before a court that has jurisdiction over it.
It includes all proceedings from time when issues are joined until
the time of its final determination.
DISCUSSION
Remember, the trial will always be subject to the law of the land
and what would that be? Of course, the Rules of Court. In fact,
when you read the Constitution, there is also rules there that would
actually affect trial.
For example: We know that under Article 3 in the Constitution, the
accused has a right to speedy trial. So, what happens if a trial that
is going on before that court took so much time and, in the
meantime, the prosecution failed to present evidence and the
accused is detained? He can actually invoke his right to a speedy
trial. And therefore, when you talk about trial being done in
accordance with law, it is not limited to the Rules of Court. You also
consult for example, the Constitution and other laws that tend to
cover the matter of trial.
So, the final determination after trial, you call that a judgment.
Take note that the trial presupposes that the court has jurisdiction
over an action.
Thus, where the court has no jurisdiction over the subject matter
of an action, the trial and all proceedings held in the case are null
and void, as a general rule. Except when there is jurisdiction by
estoppel. That is why we need to go back to the case of Tijam vs.
Sibonghanoy. And when that case shows up in the exam or the Bar
exam, what you need to remember is the factual circumstances
that attended the case of Tijam vs. Sibonghanoy the jurisdiction by
estoppel.
Q: Is the term “trial synonymous with the term “hearing”?
TRIAL VS HEARING; DISTINCTIONS
TRIAL HEARING
These terms are often used interchangeably but they are
actually not synonymous.
Trial refers primarily to the A hearing is not confined to a
reception of the evidence for trial and presentation of
the parties. evidence but embraces several
stages of litigation, including

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
pre-trial and determining
whether to grant or deny a
motion. (Trocio vs. Labayo G.R.
No. L-35701, September 19,
1973)
It refers to the period for the It does not necessarily imply
introduction of evidence by presentation of evidences in
both parties. open court, but the parties are
nevertheless afforded the
opportunity to be heard.
If you go back to your administrative law for example, or even in
labor law, the term hearing in the context of an illegal dismissal, it
does not require an adversarial court type of hearing, it is enough
that an employee has opportunity to be heard before he is actually
dismissed. So that is what hearing means. There is no need to
present evidence or adversarial. So that is with respect to labor
cases.
TRIAL MAY OR MAY NOT FOLLOW AFTER PRE-TRIAL.
It is not automatic that when we are done with pre-trial, we should
proceed to trial. Why? Take note, if you recall the object of pre-trial
are the possibility of an amicable settlement and 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. That is very clear on the Rule 18 Section 1.
If a case is settled during pre-trial, the parties “avoid a litigation or
put an end to one already commenced” by reason of the
compromise. In such a case, trial will no longer be conducted.
If, during pre-trial, the court orders that the case be decided under
Rules 34 (Judgment on the pleading) or 35 (summary judgment),
there would be no need for trial.
So, let’s go to the general rule here. One thing that you need to
remember because this is actually mandated by the requirements
of due process, that, trial is necessary when an issue exists. If the
plaintiff and the defendant cannot come into an agreement,
meaning there is that issue, there is contest, there is conflict with
respect to the facts of the case between the plaintiff and the
defendant, there should be trial. And remember, that judgments
should not be made without a trial. There should be reception of
evidence, in other words. But there are exceptions.
GR: Trial is necessary when an issue exists. Judgments should
not be made without trial.
XPNs: (When is trial or reception of evidence no longer
necessary)
1. Where the pleadings of the parties tender no issue at
all, a judgment on the pleadings may be directed by
the court (Rule 34);
2. Where from the pleadings, affidavits, depositions
and other papers, there is actually no genuine issue,
the court may render a summary judgment (Rule 35);
3. Where the parties have entered into a compromise
or an amicable settlement either during the pre-trial
or while the trial is in progress (Rule 18);
o We need to remember that compromise is always
encouraged, such that even while you are in the
middle of a trial, or presentation of evidence, at any
45
time, compromise is allowed. Take note, even if the
plaintiff and the defendant have rested, all the
evidence for the both of them have been presented
already, compromise is still allowed.
Q: What if there is already a judgment, there is already a writ
of execution to execute the judgment?
A: Still compromise is allowed, you are allowed to talk it with the
plaintiff if you are the defendant.
o Even if you are the one who lost in the case, you can
still appeal for a compromise. Compromise is actually
encouraged in all stages of the litigation. But for
example, there is a compromise prior to trial, there
shall be no trial anymore after that.
4. Where the complaint has been dismissed (i.e., Rule 15,
Section 12; Rule 17);
o Will there be a trial if the complaint has been dismissed
already? For example, under Rule 15 Section 12, let’s
say res judicata, there will be no trial anymore. Or
under Rule 17, whether by motion or by notice, or due
to the fault of the plaintiff, that is still dismissal. If it
happens before trial, there will be no more trial that is
required.
5. When the parties to any action agree, in writing, upon the
facts involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the introduction
of evidence (Rule 30, Section 7);
6. Where the civil case falls under the operation of the Rules on
Summary Procedure (Rule 17); and,
o What will happen there? You can remember that the
testimony will consist of affidavits of the parties and
then the case is actually resolved by the submission of
position papers for both the plaintiff and the
defendant. This is what happens during Summary
Procedure. So, there is no trial. There is no
presentation of evidence that is customary in ordinary
cases or cases that are subject to ordinary rules.
7. When the case falls under the Rule on Small Claims.
o For example, it is covered by the Rule on Small Claims,
what will happen there? Will there be a trial or
presentation of evidence? NO. The plaintiff will merely
fill up a form and then the court will summon them,
and they will just discuss the case. Then, the court will
now look upon the case, based on the attachments of
the plaintiff, if he has a cause of action and then they
will look on the evidence or the attachments of the
defendant. There is really no need to go to Rule 132 of
the rules relating to the presentation of evidence
because it is just a small claim.
Again, in these cases, trial can actually be avoided. No need for
presentation of evidence in these cases.
Section 1. Schedule of trial. – The parties shall strictly observe
the scheduled hearings as agreed upon and set forth in the pre-
trial order.
a. The schedule of the trial dates, for both plaintiff and
defendant, shall be continuous and within the
following periods:

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
I. The initial presentation of plaintiff’s
evidence shall be set not later than thirty
(30) calendar days after the termination of
the pre-trial conference. Plaintiff shall be
allowed to present its evidence within a
period of three (3) months or ninety (90)
calendar days which shall include the date
of the judicial dispute resolution, if
necessary;
II. The initial presentation of defendant’s
evidence shall be set not later than thirty
(30) calendar days after the court’s ruling on
plaintiff’s formal offer of evidence. The
defendant shall be allowed to present its
evidence within a period of three (3)
months or ninety (90) calendar days;
III. The period for the presentation of evidence
on the third (fourth, etc.)-party claim,
counterclaim, or crossclaim shall be
determined by the court, the total of which
shall in no case exceed ninety (90) calendar
days; and,
IV. If deemed necessary, the court shall set the
presentation of the parties’ respective
rebuttal evidence, which shall be completed
within a period of thirty (30) calendar days.
b. The trial dates may be shortened depending on the
number of witnesses to be presented, provided that
the presentation of evidence shall be terminated
within a period of ten (10) months or three hundred
(300) calendar days. If there are no third (fourth, etc.)-
party claim, counterclaim or cross-claim, the
presentation of evidence shall be terminated within a
period of six (6) months or one hundred eighty (180)
calendar days.
c. The court shall decide and serve copies of its decision
to the parties within a period not exceeding ninety
(90) calendar days from the submission of the case for
resolution, with or without memoranda.
We’ll just simplify this very long Section 1.
USUAL FLOW OF TRIAL (1 PLAINTIFF, 1 DEFENDANT):
1. It starts with the Plaintiff presents his evidence-in-chief.
2. Followed by the Defendant presents his evidence-in-
chief as well.
3. Plaintiff presents his rebuttal evidence. We need to
remember what this “rebuttal evidence” term mean.
4. Defendant presents his surrebuttal evidence. And this
might be new to you so we also need to remember that
term “surrebuttal evidence”.
Q: What is evidence-in-chief?
A: Evidence-in-chief is the main evidence for the plaintiff’s cause of
action and the defendant’s defense and counterclaim, if any. That
is their main evidence. The plaintiff will live and die with his main
evidence for his cause of action and the defendant also, will live and
die according to the evidence of his defense.
Q: What is rebuttal evidence?
A: Rebuttal Evidence is evidence presented by the plaintiff in
answer to evidence introduced by the defendant. Take note of this.
The plaintiff has (1) main evidence and of course, that will be
counteracted or countervailed by the evidence of the defendant.
46
Now, based on the evidence-in-chief presented by the defendant,
if the plaintiff wants to counteract the effect of that evidence, he
will now present a rebuttal evidence.
Q: What is surrebuttal evidence?
A: Surrebuttal evidence is the evidence presented by the
defendant in answer to evidence introduced in rebuttal by the
plaintiff.
LIMITATIONS ON REBUTTAL
1. With respect to the plaintiff’s rebuttal evidence, he is
not allowed to present new evidence on his main claim
(that evidence tending to establish his main cause of
action) because rebuttal is limited to evidence meant to
counteract the defendant’s evidence-in-chief.
You cannot introduce evidence in this stage that is totally unrelated
to the main evidence of the defendant whether it is on the main
defense of the defendant or in the counterclaim. You cannot
present a rebuttal that is not related with the evidence-in-chief of
the defendant.
2. In the same vein, in surrebuttal, the defendant is only
allowed to present evidence except such as would
counteract the plaintiff’s rebuttal evidence.
If the rebuttal evidence is one that counteracts the defendant’s
evidence-in-chief, the surrebuttal evidence also can counteract
only the rebuttal evidence of the plaintiff. That is what will happen
there. It is not allowed to include something that was not covered
previously in the immediate stage prior to that. And then later on,
when you go to third year in evidence, that is also applicable. There
is a mini-incarnation of these stages in the examination of a
witness.
Let’s say for example, first, there is direct examination. You also
have cross-examination. After the cross-examination and there is
still a need to counteract the points established during the cross-
examination, then you conduct a redirect examination, but the
redirect examination cannot go beyond the scope of the cross-
examination. And then after redirect examination, you can have
again a recross-examination which again, should not be greater in
scope than the redirect examination. So, it is the same.
Plaintiff’s evidence-in-chief will be responded to by the defendant’s
evidence-in-chief. Then, the defendant’s evidence-in-chief will be
responded to by the rebuttal evidence for the plaintiff which should
not be greater in scope again, compared to the defendant’s
evidence-in-chief. And the same applies to surrebuttal evidence as
well.
3. Neither rebuttal nor surrebuttal are mandatory stages.
It is entirely up to the parties if they want to present
rebuttal evidence or not. In other words, rebuttal may
be waived.
This is what we need to remember. It is possible that the trial will
end without rebuttal and surrebuttal. For example, the defendant
is done presenting his evidence, the plaintiff will not present
rebuttal evidence anymore. The defendant cannot therefore
present surrebuttal evidence because there is no rebuttal. That is
the system there. It is not mandatory. It’s entirely dependent on
the parties.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Are there instances under the law, that it is possible to interrupt the
presentation of evidence-in-chief, rebuttal evidence, and
surrebuttal evidence? Can the plaintiff’s evidence-in-chief, for
example, be terminated or stopped? What could possibly cause that
the plaintiff cannot anymore continue to present his evidence-in-
chief?
INTERRUPTION OF THE FLOW AFTER PRE-TRIAL AND DURING
TRIAL
STAGE HOW INTERRUPTED
Presentation of plaintiff’s It may be interrupted by
evidence-in-chief dismissal if the plaintiff fails to
appear during the
presentation of his evidence,
etc. or if the defendant files a
motion to dismiss based on
the four special grounds.
Presentation of defendant’s With respect to his
evidence-in-chief counterclaim, it may be
interrupted by dismissal if the
defendant fails to appear
during the presentation of his
evidence etc. or if the plaintiff
files a motion to dismiss his
counterclaim based on the
four special grounds.
Also, the defendant will no
longer present evidence if he
files a demurrer which is
granted.
Presentation of plaintiff’s The plaintiff may opt not to
rebuttal evidence present rebuttal evidence
anymore.
It also follows that there will
be no rebuttal if the defendant
does not or cannot present
evidence.
Presentation of defendant’s The defendant may opt not to
surrebuttal evidence present surrebuttal evidence
anymore. Also, if there was no
rebuttal, there is no more
surrebuttal.
DISCUSSION
1. PRESENTATION OF PLAINTIFF’S EVIDENCE-IN-CHIEF
In those situations, during trial, the plaintiff cannot anymore
continue to present evidence. In effect, it is possible that the
defendant will win.
2. PRESENTATION OF DEFENDANT’S EVIDENCE-IN-CHIEF
What about the instances wherein the defendant may be presented
or does not have to present any evidence-in-chief? Are there
instances like that?
The plaintiff is done presenting his or her evidence-in-chief, and
then the defendant won’t present his or her evidence-in-chief to
counteract the evidence of the plaintiff.
If you talk about his counterclaim, for example, that is the same
with the plaintiff’s, so it may be interrupted by dismissal if the
defendant fails to appear during the presentation of his evidence.
47
Or if the plaintiff files a motion to dismiss the defendant’s
counterclaim, again, based on the four special grounds.
But there is one more situation. Is there one more situation when
the plaintiff has presented his evidence, and the defendant may get
away and win the case without presenting evidence on his own?
We’re talking here about the defense of a defendant, not a
counterclaim that he set up.
Can we recall Rule 33—demurrer to evidence? The defendant will
no longer present evidence if he files a demurrer, which is granted.
What will happen in a demurrer? You file a demurrer because based
on the facts and the law, the plaintiff is not entitled to relief. In
other words, the plaintiff failed to comply with his burden of proof.
He didn’t prove the elements of his cause of action, so you can file
a demurrer to evidence.
3. PRESENTATION OF PLAINTIFF’S REBUTTAL EVIDENCE
Can that be interrupted? Can the plaintiff be hindered from
presenting his rebuttal evidence? Actually, it is possible because the
presentation of rebuttal evidence is optional. The plaintiff may not
opt to present rebuttal evidence anymore.
Or the plaintiff wants to present rebuttal evidence but there will be
no rebuttal because the defendant does not or cannot present his
evidence anymore. There’s no need to rebut in this case.
4. PRESENTATION OF DEFENDANT’S SUREBUTTAL
EVIDENCE
Can there be interruption here? There is. The defendant may opt
not to present surrebuttal evidence anymore after hearing the
rebuttal evidence of the plaintiff. Also, if there was no rebuttal,
there is no more surrebuttal.
That’s what we need to remember—that these different stages can
be interrupted.
FORMAL OFFER
Rule 132
Section 34. Offer of evidence. – The court shall consider no
evidence which has not been formally offered. The purpose for
which the evidence is offered must be specified.
Section 35. When to make offer. – All evidence must be offered
orally.
The offer of the testimony of a witness in evidence must be
made at the time the witness is called to testify.
The offer of documentary and object evidence shall be made
after the presentation of a party’s testimonial evidence (35a)
The form that an offer takes would be that it would be offered
orally.
If you are calling somebody to be your witness, you will have to
state for the record and before the court, what is the purpose of
the testimony of that witness. That is your formal offer.
On the last paragraph of Section 35: That’s the time that you do it.
When all your witnesses are done testifying, that’s the time that

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
you offer all of the documents that were identified and marked
during trial or during the presentation of evidence. You summarize
what they are.
GR: Offer the evidence orally.
You have to offer evidence one by one.
Take note that the Supreme Court had the occasion to define what
a formal offer is.
GUMABON v. PNB
G.R. No. 202514 | July 25, 2016
RULING: Formal offer means that the offeror shall inform the
court of the purpose of introducing its exhibits into evidence.
Without a formal offer of evidence, courts cannot take notice of
this evidence even if this has been previously marked and
identified.
DISCUSSION
That is a very strict general rule. If you simply forgot to offer but
presented during trial, the court will not take notice of the evidence
if you lack the formal offer.
REPUBLIC v. GIMENEZ
G.R. No. 174673 | January 11, 2016
RULING: Formal offer is necessary because judges are mandated
to rest their findings of facts and their judgment only and strictly
upon the evidence offered by the parties at the trial. Its function
is:
• To enable the trial judge to know the purpose or
purposes for which the proponent is presenting the
evidence;
• On the other hand, this allows opposing parties to
examine the evidence and object to its admissibility;
• Moreover, it facilitates review as the appellate court
will not be required to review documents not
previously scrutinized by the trial court.
DISCUSSION
The Supreme Court said here that the formal offer is not just an
empty ceremony. It is not just a formal requirement.
On the second function: So, a principle that you need to remember
as early as now is that if there is no offer, you cannot object. If there
is no formal offer, you are not yet to object.
The exception there would be if your objection is to the question.
If the question calls for an answer not related to the case, then you
call that “irrelevant evidence”. Thus, you can object.
So, that’s one way to do it. Or something that is not relevant or
material to the fact in this issue in the case. You can object even
without offer. The testimony of the witness himself has been
previously offered.
EFFECT OF LACK OF OFFER
GR: If the proponent of a piece of evidence fails to make a
formal offer, the evidence will be excluded. The rule on formal
offer of evidence is not a trivial matter. Failure to make a formal
48
offer within a considerable period of time shall be deemed a
waiver to submit it. Consequently, any evidence that has not
been offered shall be excluded and rejected.
The REMEDY of the opponent would be to move for the striking off
of the evidence from the records. The court may also exclude the
same motu proprio.
After the plaintiff is done with the presentation of his main
evidence, the plaintiff rests. He will then make a formal offer of his
documentary and object evidence. And he has to do it orally.
Q: What happens after that?
A: The defendant will not immediately present his evidence. He is
allowed to:
1. Comment on or oppose the plaintiff’s formal offer of
exhibits; or
He can raise objections on the admissibility of the exhibits offered
by the plaintiff.
2. File a demurrer because the plaintiff failed in
discharging the burden of proof (i.e. he failed to prove
the elements of his cause of action).
After the court rules on the formal offer or the demurrer, as the
case may be, the defendant will now present his main evidence.
Usually, the presentation of the evidence on the defendant’s
defense will just be lumped with the presentation of evidence on
his counterclaim as they are found in the same judicial affidavit.
Because the judicial affidavit will constitute the testimony of the
defendant, is it possible to have his judicial affidavit for his defense
be different from his judicial affidavit for his counterclaim? No. He
will lump the two together. So, the defendant will only testify once.
That’s the time that he presents his main evidence.
After presenting all his evidence, including his witnesses, he also
rests and makes a formal offer. The plaintiff may also comment on
or oppose the defendant’s formal offer or file a demurrer on the
counterclaim.
Specially so if the counterclaim is merely a permissive counterclaim.
It means that it has no logical connection to the subject matter of
the main claim, but it was allowed by the court. In this case, the
evidence will be different. The plaintiff can here file a demurrer on
the counterclaim on that ground.
After the court rules, if deemed necessary, the plaintiff may present
his rebuttal evidence.
Usually, in trial, what will happen there? The initiative will come
from the plaintiff himself. “Your Honor, we manifest for the record
that we intend to present rebuttal evidence,” he will manifest to
the court. Otherwise, the court can simply say that since the both
parties have rested, the case is submitted for resolution. He will
decide already.
If you are the plaintiff and you have rebuttal evidence, then you
have to take the initiative. You have it stated for the record that you
have rebuttal evidence to present.
Take note of this. This is the one provided in Section 1, as to the
periods.
 49
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

PERIODS
Stage When set Duration The rules do not expect that the presentation is extensive
Presentation of Within a period of compared to the main claim. Some of the evidences may have
plaintiff’s main Not later than thirty three (3) months or already been presented for the trial of the main claim. So, it should
evidence (30) calendar days ninety (90) calendar not be given a long period of time. Thus, the maximum will only be
after the days which shall 90 calendar days for all the claims.
termination of the include the date of
pre-trial the judicial dispute 4. The trial dates may be shortened depending on the number of
conference. It must resolution, if witnesses to be presented, provided that the presentation of
be within the 30 necessary; evidence of all parties shall be terminated within a period of
days. JDR is included ten (10) months or three hundred (300) calendar days.
thereto.
Let’s say for example you have 3 witnesses. Usually, 1 of them
Presentation of Not later than thirty would be the main witness, the one who would prove the cause of
Within a period of action. The remaining witnesses would only be corroborative, or for
defendant’s (30) calendar days
three (3) months or addition only to corroborate the statements of the main witness.
main evidence after the court’s
ninety (90) calendar The judicial affidavits [of corroborative witnesses] would be only
ruling on plaintiff’s
days. short. If their testimony is not long, is it possible that the 3
formal offer of
evidence. witnesses be presented in 1 day? YES! There is no need present all
the witnesses in separate days, if they can be presented in a single
Presentation of No period is stated occasion. If shorter period of trial is needed for them, then there is
plaintiff’s under the rules. no need to make it longer.
rebuttal Thus, the court
evidence determines Within a period of 5. If there are no third (fourth, etc.)-party claim, counterclaim or
Presentation of whether the three (3) months or cross-claim, the presentation of evidence shall be terminated
defendant’s rebuttal evidence is ninety (90) calendar within a period of six (6) months or one hundred eighty (180)
surrebttal required and sets days. But that is calendar days.
evidence the same combined for both
accordingly, after plaintiff and the There is a deadline on when the presentation of evidence should
completion of the defendant. end.
presentation of
evidence to be 6. The court shall decide and serve copies of its decision to the
rebutted. parties within a period not exceeding ninety (90) calendar
days from the submission of the case for resolution, with or
without memoranda.
OTHER MATTERS TO REMEMBER FOR SECTION 1:
7. A case is deemed submitted for resolution when both the
1. The parties shall strictly observe the scheduled hearings as plaintiff and defendant have finally rested their cases.
agreed upon and set forth in the pre-trial order. (Meaning, there is no rebuttal evidence to be presented; that is
really it) The court may require the submission of memoranda
REMEMBER: When the trial dates are set, and 1 trial date is or even oral arguments in support of the parties’ respective
postponed because of force majeure, the party who caused the positions in order to aid the court in deciding the case.
postponement is forewarned that he has to finish the presentation
of his evidence during the remaining trial dates. There is no make- Most of the courts will just decide; some will not require anymore
up class when you talk about trial. The scheduled hearings or trial the submission of memoranda. But some courts will even require
dates must be strictly observed. memoranda even on petty things, just like when there is an
objection in the course of trial – the court will require memoranda
2. The schedule of trial dates for both the plaintiff and defendant or position paper on that issue before ruling. This delays the trial.
shall be continuous.
Based on the spirit of the rules, the moment the parties are done
GR: The presentation of evidence must be continuous. submitting their evidence, automatically that is submitted for
It shouldn’t be that on June 2020 you presented 1 witness, and the resolution; no need for the submission of memoranda or oral
next presentation is in January 2021. That is not continuous, that is arguments.
very delayed.
ADJOURNMENTS AND POSTPONEMENTS
3. The period for the presentation of evidence on the third Section 2. Adjournments and postponements. – A court may
(fourth, etc.)-party claim, counterclaim or cross-claim shall be adjourn a trial from day to day, and to any stated time, as the
determined by the court, the total of which shall in no case expeditious and convenient transaction of business may
exceed ninety (90) calendar days; and require, but shall have no power to adjourn a trial for a longer
period than one [(1)] month for each adjournment, nor more
No matter how many the claims, the duration of which is only 90 than three [(3)] months in all, except when authorized in writing
calendar days. Why? Because these counterclaims, cross-claim, by the Court Administrator, Supreme Court.
third (fourth, etc.) party claim, they all have a relation to the subject
matter of the main case between the plaintiff and defendant.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
The party who caused the postponement is warned that the
presentation of its evidence must still be terminated on the
remaining dates previously agreed upon. (2a)
Q: If the court wants to or needs to adjourn for more than 3
months in total, what will be the requirement?
A: The court needs to ask for an authorization in writing from the
Court Administrator or the Supreme Court.
ARTICLE VIII, SECTION 15, 1897 CONSTITUION
Section 15. (1) All cases or matters filed after the
effectivity of this Constitution must be decided or
resolved within twenty-four months from date of
submission for the Supreme Court, and, unless reduced
by the Supreme Court, twelve months for all lower
collegiate courts, and three months for all other lower
courts.
It is actually a Constitutional requirement that the trials shall be
immediately done. But the thing about all these periods is that, take
note, as far as the court is concerned, they are actually do not mean
squat. Why? Because, no party can win a civil case just because the
court failed to render judgement within the period fixed by the
rules.
It is not the same with criminal cases where you can actually invoke
the right to speedy trial. So, let’s say in the civil case, there is a delay
and instead of deciding it within 6 months, it took the court 12
months to rule.
Q: Can you do anything about it? Are you entitled to winning the
case just because the court decision was a bit late?
A: No. And only parties are procedurally affected if they do not
comply with the requisite period.
So, in case there will be a consequence for not following the period,
it is only applicable to a party. Generally, it will not affect the court.
And time and again, the Supreme Court has consistently ruled that
periods for deciding a case are all directory and not mandatory.
The most recent that I can cite as an example is this complaint
affidavit against Justice Leonardo-De Castro.
Re: Complaint-Affidavit Against Justice Leonardo-De Castro
A.M. No. 18-11-09-SC | January 23, 2019
Statutes requiring the rendition of judgement forthwith or
immediately after the trial or verdict have been held by some
courts to be merely directory so that non-compliance with them
does not invalidate the judgment, on the theory that if the
statute had intended such result it would clearly have indicated
it.
Ineluctably, leeway must be given to magistrates for them to
thoroughly review and reflect on the cases assigned to them.
XXX It would be at the height of injustice if cases were hastily
decided on at the risk of erroneously dispensing justice.
DISCUSSION:
1st paragraph: In other words, even if you are delayed with regard
to any judgement rendered, you are not allowed to invalidate it. It
will not have an effect on the validity of the judgement.
50
2nd paragraph: So, in this case, which is fairly recent, actually says
that these periods to render judgement are actually not mandatory.
But take note, that if the case really does take an unusual amount
of time, this can subject the judge to disciplinary action, like in the
case of Spouses Marcelo v. Pichay.
Spouses Marcelo v. Pichay
A.M. No. MTJ-13-1838 | March 12, 2014
Pursuant to Section 9, Rule 140 of the Rules of Court, undue
delay in rendering a decision or order is considered as a less
serious offense which is punishable by either:
(a) Suspension from office without salary, and other
benefits for not less than 1 nor more than 3 months;
or
(b) A fine of more than P10,000 but not exceeding
P20,000.
DISCUSSION:
Meaning the judge can be administratively liable if he delays in
rendering judgment. So, there is a fine, there is a suspension, but
does it affect the validity of the decision? No.
Now there is this deleted provision.
Deleted Provision
Section 3. Requisites of motion to postpone trial for
absence of evidence. – A motion to postpone a trial
on the ground of absence of evidence can be granted
only upon affidavit showing the materiality or
relevancy of such evidence, and that due diligence
has been used to procure it. But if the adverse party
admits the facts to be given in evidence, even if he
objects or reserves the right to object to their
admissibility, the trial shall not be postponed. (4a,
R22, Bar Matter No. 803, 21 July 1998)
DISCUSSION:
Why was this deleted? Because again the policy of the law would
be, for example you are absent at the time you were supposed to
present your evidence, you have already waived for such
presentation of evidence and recall as well that based on the spirit
of the new Rules or the Amended Rules, it is required that all your
evidence shall be available at the time you have filed your pleading.
When you file a complaint, all your witnesses should have already
judicial affidavits as a general rule. You can file for a reservation,
but then again, the requirements for a reservation are very strict.
Even then, if you plan to add judicial affidavits and reserve them,
you still have to tell the court what is the name of the witnesses,
what is his position and what would be the substance of his
testimony.
But, again the general rule is that it should be available at the time
you file your pleading, whether it is an initiatory or responsive
pleading. Answer, also needs a judicial affidavit. So, because of this,
Section 3 is no longer applicable.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Now let us go to the new Section 3 – POSTPONEMENT DUE TO
ILLNESS:
Section 3. Requisites of motion to postpone trial for illness of
party or counsel. – A motion to postpone a trial on the ground
of illness of a party or counsel may be granted if it appears upon
affidavit or sworn certification that the presence of such party
or counsel at the trial is indispensable and that the character of
his or her illness is such as to render his or her non-attendance
excusable. (4a)
DISCUSSION:
Section 3 recognizes the fact that all people have the capacity to
get sick. So, if you really cannot attend, and you are the lawyer or
you are the party-litigant, you cannot attend because you were sick
or you contracted CoVid. You cannot just force yourself to attend.
In these cases, it is important to justify your absence. You have to
file a motion to postpone.
Q: What do you need to include in your motion to postpone?
A: An affidavit or sworn certification. A sworn certification, usually
in practice, it is already sufficient if you present a medical certificate
if you have a previous diagnosis. You have to attach your medical
certificate and that would usually be enough and sufficient in order
for you to postpone trial on that ground.
Take note as well that there is an additional requisite here. It has to
appear that the presence of party or counsel at the trial is
indispensable.
Q: What is meant by this indispensability?
A: Let us put for example that you are counsel. Are you the only
lawyer capable of attending that case? What if you have a co-
counsel? Or that you are a member of a big law firm where you can
ask for a co-counsel to replace you?
These are things that the court will have to consider, and the
character of the illness is such as to render non-attendance
excusable. Again, my perfect example there would be CoVid. So,
these are things that could happen. We are all creatures of nature,
and sickness cannot really be avoided.
Section 4. Hearing Days and Calendar Call. — Trial shall be held
from Monday to Thursday, and courts shall call the cases at
exactly 8:30 a.m. and 2:00 p.m., pursuant to Administrative
Circular No. 3-99. Hearing on motions shall be held on Fridays,
pursuant to Section 8, Rule 15.
All courts shall ensure the posting of their court calendars
outside their courtrooms at least one (1) day before the
scheduled hearings, pursuant to OCA Circular No. 250- 2015. (n)
DISCUSSION:
OCA means Office of the Court Administrator. So let us go first to
the second paragraph. Actually, when you go to the court room,
you can actually see the schedule for a particular day. Many courts
actually practice that proactively. Many courts, on Mondays have
already posted their calendar for the remainder of the week.
51
Because of this, you can really know and be assured that your case
is set for hearing.
Take note, as we have discussed in Rule 15 that unless the court
schedules your case on a different day, it will be presumed that
your motion will be heard during Fridays.
Take note as well of the first sentence. Trial shall be held from
Monday to Thursday. Again, this is because, Friday is supposed to
be motion day. So Trial is different from hearing on the motion.
Trial is really reception of evidence; it happens Monday to
Thursday. Hearing on Motions are conducted, as a general rule on
a Friday.
Take note again, that there is already a time requirement, and this
is entirely a new provision, 8:30 a.m. and 2:00 p.m.
Q: Why is this required?
A: As a rule, courts should be open as early as 8:00 a.m. However,
there are instances where Judges arrive at times on 10:00 or 11:00.
What can you accomplish if that is the case? And during afternoons,
they would arrive at 3:30 p.m.
So just remember that hearings are only allowed during the 8-12
timeframe because, remember, judges need to take their lunch too.
The court employees still need to take their lunch, even the parties
need to take their lunch.
To calculate the time, it is only 3 and a half hours in the morning
and 4 hours in the afternoon if the court is still open at 6:00 p.m. So
with that ask yourself, how many witnesses can you present during
that time? How many cases can the court entertain by then?
So that is the problem with the judiciary. There is really a delay on
cases because a lot of judges do not actually attend to their duties
punctually. Because of that the Supreme Court enacted this rule
wherein by the time 8:30 a.m. already strikes, you should already
be open, at 2:00 p.m. you should already be open. Otherwise, you
can be subjected to administrative liability.
Section 5. Order of Trial. – Subject to the provisions of Section
2 of Rule 31, and unless the court for special reasons otherwise
directs, the trial shall be limited to the issues stated in the pre-
trial order and shall proceed as follows:
a. The plaintiff shall adduce evidence in support of his or
her complaint;
b. The defendant shall then adduce evidence in support
of his or her defense, counterclaim, cross-claim and
third-party complaint;
c. The third-party defendant, if any, shall adduce
evidence of his or her defense, counterclaim, cross-
claim and fourth-party complaint;
d. The fourth-party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them;
e. The parties against whom any counterclaim or cross-
claim has been pleaded, shall adduce evidence in
support of their defense, in the order to be prescribed
by the court;
f. The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
in furtherance of justice, permits them to adduce
evidence upon their original case; and
g. Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court
directs the parties to argue or to submit their
respective memorandum or any further pleadings.
If several defendants or third-party defendants, and so forth,
having separate defenses appear by different counsel, the
court shall determine the relative order of presentation of
their evidence. (5a)
DISCUSSION
We already discussed this so nothing much about Section 5 except
the codal provision.
So, what is Par. (a)? That's the presentation of the plaintiff's
evidence in chief. (b) is the defendant's evidence in chief which
includes evidence in support of counterclaim, cross-claim and third-
party complaint. Usually, these are all joined together. Why?
Because when the defendant submits his answer, everything that
he has to do in order to substantiate also his counterclaim, cross-
claim, third-party complaint - that's in the same judicial affidavit.
Then, third-party defendant - also allowed to submit. Fourth-party,
if there is.
If several defendants or third-party defendants, and so forth,
having separate defenses appear by different counsel, the court
shall determine the relative order of presentation of their
evidence.
o This is because they have different pieces of evidence
especially so if they have different lawyers. So, the Court
will now determine the order of the presentation. You
don't have to follow (a) to (g) in this provision.
ORAL OFFER OF EXHIBITS
Section 6. Oral offer of exhibits. – The offer of evidence, the
comment or objection thereto, and the court ruling shall be
made orally in accordance with Section 34 to 40 of Rule 132.
(n)
DISCUSSION
Section 6 actually just repeats what Rule 132 states. So, first you
formally offer an evidence.
Let's talk about the formal offer of the evidence, let's say, for the
plaintiff and the evidence is testimonial evidence. The plaintiff
presented a witness. Prior to the presentation of that witness, the
lawyer will make an offer thru the judicial affidavit. "The testimony
of this witness, Your Honor, is offered to prove the following
matters: 1.2.3.4.. and such other matters, Your Honor, in relation to
his cause of action against the defendant."
Now, how will the defendant comment or object? Also orally. "We
object, Your Honor, to the offer on the ground that the testimony
seems to illicit matters that are inadmissible." So, that's an
objection that's orally made. The court should rule immediately as
well and has to do it orally.
The problem before is that, there is a formal offer - documentary
exhibits - the parties are still given how many days to prepare the
written formal offer of documentary exhibits. The defendant is also
52
given additional time to make a written comment plus additional
time for the court to rule on the formal offer and the objections.
So, it would take a long time. That's why the trial would take a long
time because of that. Now, it's all orally made.
JUDGMENT ON AGREED STATEMENT OF FACTS
Section 7. Agreed statement of facts. - The parties to any action
may agree, in writing, upon the facts involved in the litigation,
and submit the case for judgment on the facts agreed upon,
without the introduction of evidence.
If the parties agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order as the court
shall prescribe. (6)
DISCUSSION
This provision is actually a very interesting provision.
Under Section 7, there's no trial anymore. That is the implication
of Section 7.
In the situation envisaged by this provision, the parties have no
issue about the facts of the case. Their conflict is confined to who
between them is entitled to win given the facts which neither of
them dispute.
In other words, the plaintiff is saying: "Based on the facts, I should
win." The defendant is also saying; "Yes, I agree with you. We do
not have any disagreement with the facts but based on those facts,
I should win."
As the parties already agree on the facts, they will leave it to the
court to interpret the undisputed facts and decide the case
according to its interpretation. They already had an agreement as
to what happened in this case. It is now with the court to interpret
as to who would win: plaintiff or defendant.
Thus, because there is no more question as to the facts, in effect,
the questions that are left to be resolved are QUESTIONS OF LAW.
And because only questions of law are left, there is no need to
present evidence, as evidence is only required to resolve questions
or issues of facts. Under Rule 128, Section 1, evidence is the means,
sanctioned by the Rules of Court, of ascertaining in a judicial
proceeding the truth respecting a matter of fact.
In other words, evidence is only needed when there is a
disagreement as to the question of fact. If there is no question of
fact, then why would there be a need to present evidence? It is up
to the court to apply the law based on the agreed statement of
facts.
Q: What if the parties under Section 7 do not agree on all of the
facts?
A: If the parties agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order as the court shall
prescribe.
With the rest of the facts that have not been agreed upon, then
reception of evidence shall be held. What will be the effect? The
trial will still be held quickly because not all facts would need proof.
No need for the presentation of evidence to facts that have already
been agreed upon. That's what Section 7 means. Again, no more

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
questions of fact, only questions of law remain. And when the
question is of law, evidence is not needed.
SUSPENSION OF ACTIONS
Section 8. Suspension of actions. – The suspension of actions
shall be governed by the provisions of the Civil Code and other
laws. (8a)
We already discussed this provision when we were in Rule 18.
Section 9. Judge to receive evidence; delegation to clerk of
court. – The judge of the court where the case is pending shall
personally receive the evidence to be adduced by the parties.
However, in default or ex parte hearings, and in any case where
the parties agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a member of
the bar. The clerk of court shall have no power to rule on
objections to any question or to the admission of exhibits, which
objections shall be resolved by the court upon submission of his
or her report and the transcripts within ten (10) calendar days
from termination of the hearing. (9a)
DISCUSSION
First, when may reception of evidence be done not by a judge?
Remember in Section 9, upon the submission of evidence, it should
personally be the judge.
Q: What would be an instance when reception of evidence may be
done not personally by a judge?
A: WHEN RECEPTION OF EVIDENCE IS DELEGATED TO THE CLERK
OF COURT, in the following instances:
1. In default hearings;
Under Rule 9, the judge may rule or decide
based on the prayer of the plaintiff's pleading
or require the plaintiff to present evidence
which can be delegated to the clerk of court.
2. Ex parte hearings; and
That's when there is no need for the presence of
the adverse party
3. In any case where the parties agree in writing.
The parties can agree that they will no longer
disturb the judge. They will instead present
evidence before the clerk of court if the issue
between the parties is not that problematic.
NOTE: The clerk of court, in such a case, must be a member of the
Philippine bar. He must be a lawyer.
Now take note as well that the clerk of court, when the reception
of evidence is delegated to him, has no power to rule on objections
to any question or to the admission of exhibits.
Q: Is there an instance where reception of evidence is delegated
by the judge to another person who is not the clerk of court?
B: WHEN THERE IS TRIAL BY COMMISSIONER.
There is actually power given to the commissioner to receive
evidence because under Rule 32, Section 3, a commissioner may,
53
depending on the order of reference by the court, may be
empowered to:
1. Receive and report evidence;
2. Not only that, but may also issue subpoenas and
subpoenas duces tecum; and
3. Even rule on the admissibility of evidence, all of which
distinguishes a commissioner from a clerk of court.
Why? The clerk of court cannot rule on objections to any question
or to the admission of exhibits. Hence, a commissioner is more
powerful than the clerk of court. Remember that a commissioner
need not be a member of the Philippine Bar. He can be an Engineer,
a Certified Public Accountant, or as long as he can render help to
the court in determining the issues of the case. Thus, a
commissioner is more powerful than the clerk of court.
Comment on the sentence:
"The clerk of court cannot rule on objections to any question or
to the admission of exhibits."
In other words, there is a document. The adverse party objects in
the presentation of such exhibits when it was delegated to the clerk
of court.
There is something weird about that. Why? There is no reason for
the Rule to state that the clerk of court cannot rule on objections
to the admission of exhibits like documentary evidence. It is
because, under the Rules on Evidence, objections to the admission
of exhibits are not made during the reception of the evidence.
Q: So, when should a party object to exhibits?
A: Example, under Rule 130, Section 3, we have the original
document rule which states that "When the subject of inquiry is
the contents of a document xxx, no evidence is admissible other
than the original document itself." Thus, if the document being
presented in evidence is not original, like a photocopy only, or
sometimes even photocopies of photocopies, you can object based
on Rule 130, Section 3 because again, it is only a photocopy. It is
not original.
Q: So, when you see during trial that the document being
identified by the witness is not original, do you object
immediately?
Let us check the Rules.
Rule 132. Sec. 36. Objection. - Objection to offer of evidence
must be made orally immediately after the offer is made.
So, we should also know when the offer of evidence
was made because it is apparently the offer that
triggers your ability and timing to object. So, under
Section 35, when is offered made which triggers
objection? Rule 35 provides:
Rule 132. Sec. 35. When to make offer. - xxx the offer of
documentary and object evidence shall be made after the
presentation of a party's testimonial evidence.
Q: So, I ask again: when you see during trial that the document
being identified by the witness is not original, do you object
immediately?
A: NO. That is not the proper time to object. In fact, this was made
clear by the Supreme Court in the case of Sps. Tapayan v. Martinez.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
SPS. TAPAYAN v. MARTINEZ
G.R. No. 207786 | January 30, 2017
HELD: The rule requires that the original document be produced
whenever its contents are the subject of inquiry xxx. However,
to set this rule in motion, a proper and timely objection is
necessary.
In case of documentary evidence, offer is made after all the
witnesses of the party making the offer have testified, specifying
the purpose for which the evidence is being offered. It is only at
this time, and at no any other time, that objection to the
documentary evidence may be made. And when a party failed
to interpose a timely objection to evidence at the time they
were offered in evidence, such objection shall be considered as
waived.
DISCUSSION
This is weird. Why am I emphasizing this? If the proper time for
objection on the originality, for example, of a document, is not
during the presentation of evidence, but rather when there is
already formal offer, do you still have an opportunity before the
clerk of court to object, for example, so that the clerk of court will
not be given the opportunity or the power to rule on the objection?
Is it not a fact that you make your formal offer before the judge, and
after the presentation, all of your evidence? That is the general rule.
Not during the reception of evidence before the clerk of court. So,
it is not necessary to state that the clerk of court has no power to
rule on the objections to the admissibility of documents. It is not
needed. It is because parties are not supposed to object to the
admissibility of documents during presentation of evidence, but
rather, after offer--that is, when all the witnesses have already
been presented.
I would get agitated by those lawyers who object immediately
when they see a photocopy being presented during trial. "Objection
your honor. It violates the Best Evidence Rule." Before, that is called
the best evidence rule. Now, it is called the Original Document Rule.
It is not even proper yet to object and yet there are judges also that
will sustain an objection that the document you presented is not
original when in fact, it has not yet been offered. The objection is
premature, and so is the ruling of the court.
Just imagine, procedurally, there are practitioners who do not know
the nuances of the rules. So, if you become lawyers one day, and
we see each other during trial, and you would whimsically object, I
would forget that you were my students. My students know when
to object. If you do not understand Rule 132, then surely, you are
not my student.
What is the moral lesson? Do not just object prematurely. Wait for
the proper time. If you object prematurely, it would only show that
you are ignorant of the Rules.
54
RULE 36
JUDGMENT
RENDITION OF JUDGMENTS AND FINAL ORDERS
Section 1. Rendition of judgments and final orders. – A
judgment or final order determining the merits of the case shall
be in writing personally and directly prepared by the judge,
stating clearly and distinctly the facts and the law on which it is
based, signed by him, and filed with the clerk of court.
DISCUSSION
In Rule 36, Sec. 1, we are talking here of the form of a judgment or
a final order which determines the merits of the case. There cannot
be a judgment which is orally made because the rule says that it has
to be in writing. Also, the rule says that it has to be personally and
directly prepared by the judge who heard the case. Although of
course, it could be that the judge who initially heard the case
already retired, but still we have the transcript or stenographic
notes, so the judge can still make a decision based on those
documents.
“…personally and directly prepared by the judge…” – You may ask
is it not the clerk of court who writes or prepares the decision? It
may happen, but as long as it is the judge who signed the decision,
it is okay, since it is really the judge who decided the case. It could
be that the clerk merely drafted the decision or researched on the
case.
“…stating clearly and distinctly the facts and the law on which it
is based…” – It is not allowed that in the judgment, it directly
provides for the “wherefore” clause stating that the case is
dismissed for lack of merit. There has to be justification.
The decision basically summarizes the material facts of the case,
the issue, and the decision. Signed by the judge and filed with the
clerk of court.
“…filed with the clerk of court.” – This phrase shows that the judge
is different and separate entity from the court.
Q: What are the requisites of a valid judgment?
A: We have essential requisites and formal requisites of a valid
judgment.
ESSENTIAL REQUISITES OF A VALID JUDGMENT
1. The court rendering the decision must have jurisdiction
over the subject matter.
• It is important that the court has jurisdiction,
otherwise, all proceedings are null and void.
Jurisdiction over the subject matter is
conferred by law, it is not subject to silence,
waiver, agreement of the parties.
2. The court rendering the decision must have jurisdiction
over the defendant and in some cases, over the res.
• But as previously discussed, the jurisdiction
over the person can be waived.
3. The court which renders the judgment must have
jurisdiction over the issues.
• This means that the court can decide as a
general rule only those matters which are
raised by the parties in their pleadings,
although we have discussed those exceptions
wherein even if there are issues not raised in

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
the pleadings, but without the objections of the
other parties, those issues can be considered in
the rendition of the judgment.
4. The court rendering the judgment must be a validly
constituted court and the judge thereof must be the
judge de jure or de facto.
• There must really be an authority to act.
5. The judgment must be rendered after a lawful hearing
• because it is a requirement of due process, the
opportunity to be heard.
FORMAL REQUISITES FOR A VALID JUDGMENT
Formal requisites – these are the requisites mentioned in Section 1.
1. Judgment must be in writing.
• There is no such thing as an oral decision.
2. The judgment must be personally and directly prepared
by the judge.
3. The judgment must state clearly and distinctly the facts
and the law on which it is based. This is provided for
under Article VIII, §14 of the 1987 Constitution.
SECTION 14. No decision shall be rendered by any court
without expressing therein clearly and distinctly the facts
and the law on which it is based.
No petition for review or motion for reconsideration of a
decision of the court shall be refused due course or
denied without stating the legal basis therefor.
4. The judgment must be signed by the judge and filed with
the clerk of court.
Q: What is the concept of a memorandum decision?
A: We have stated before that the decision must clearly and
distinctly the facts and the law on which it is based. There are
instances like in appellate courts, after the pleadings are submitted,
the CA affirmed the RTC’s decision or the court a quo, the
stipulation of facts and the conclusions. Although the appellate
court discussed its proceedings, the stipulation of facts is merely
referred to the findings of the RTC as well as the conclusion of law,
the question is would it be considered to be a valid decision? The
answer is yes, it is valid. This is what we call as a Memorandum
Decision.
MEMORANDUM DECISION, DEFINITION:
This is defined in Rule 51, §5.
Section 5. Form of decision. — Every decision or final
resolution of the court in appealed cases shall clearly
and distinctly state the findings of fact and the
conclusions of law on which it is based, which may be
contained in the decision or final resolution itself, or
adopted from those set forth in the decision, order, or
resolution appealed from. (Sec. 40, BP Blg. 129) (n)
There are also instances when the parties are ordered by the court
to submit a draft decision and it is already upon the court which of
those the court will adopt. That is still a valid decision.
Q: Is there a distinction between a judgment and a decision?
A: Yes. When you say “decision”, it refers to the entire decision. It
pertains to the facts, all the proceedings that took place, the
55
statement of the issues, the application of law, and the dispositive
portion. From the beginning to end, that is the decision.
Judgment pertains to the dispositive portion. This is also known as
the fallo of the case. In the last portion, you can see “wherefore, the
judgment is hereby rendered ordering the defendant to vacate the
premises.” That is the judgment.
Q: There are instances when the body of the decision states that
you won the case, but the judgment states otherwise, which will
prevail, the body or the dispositive portion?
A: In case of conflict, it is the fallo or dispositive portion that
prevails over the body. It is the official disposition of the case.
OTHER TYPES OF JUDGMENT:
1. Sin perjuicio judgment – a judgment which contains only
the dispositive portion of the decision and reserves the
making of findings of fact and conclusions of law.
This kind of judgment is void. As already discussed, the
judgment must clearly and distinctly express the facts and
the law on which it is based.
2. Conditional judgment – a judgment which is subject to
the performance of a condition precedent and is not final
until the condition is performed.
For example, there is a case of partition filed by A because
according to him he is one of the legal heirs of the
decedent and that he was not included in the partition of
the property. But prior to that, there was a case for
recognition of A as an illegitimate child of the decedent.
So, if in the decision of the court, the judge will render a
decision but subject to the result of the case on the
recognition of A, that is not a valid judgment because
when you render a decision, you must dispose of
everything already.
3. Incomplete judgment – A judgment which leaves certain
matters to be settled in a subsequent proceeding.
For example in an action for damages, you filed a case for
moral damages because of your besmirched reputation,
sleepless nights, anxiety and etc, so the court granted the
relief prayed for in your complaint so the court granted
exemplary damages however, the court did not mention
the amount of damages, is that a valid decision?
It is not a valid judgment because it is incomplete. How
can you enforce that judgment when you don’t know the
exact amount of the damages you are supposed to get
from the defendant. That judgment is also a defective
judgment.
4. Judgment nunc pro tunc – Literally, it means “now for
then”. It is a modified or amended judgment
incorporating matters of record taken up during the trial
but were inadvertently omitted in the previous judgment.
• Concept of a nunc pro tunc judgment:
There are certain decisions judgments that might omit
some of the things that were discussed, threshed out, and
proved during the trial. These were really taken up during
the trial but the judgment is lacking, or failed to

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
incorporate those matters of record which are supposed
to be important and should be a part of the judgment.
• Remedy:
You may amend it. It is one of the exceptions where a
judgment which is final and executory cannot be
modified or amended. The amended judgment will not be
considered a judgment nunc pro tunc.
5. Judgment Upon a Compromise – a judgment with the
consent of the parties for the purpose of effecting a
settlement of an action.
For example, A files a case against B for collection of 1M,
then B says he does not owe A anything. They can enter
into a compromise agreement and meet half-way. A then
agrees to 500k, and B agrees to pay 500k. So, they would
now sign a compromise agreement which will be
approved by the court and will become final and
executory. Both parties, by entering into a compromise
agreement, they actually make a reciprocal concession to
end a pending litigation. It is final and executory
immediately.
Ajudgment based on compromise agreement is not
subject to appeal. You can file a motion to set aside the
compromise agreement but if it is denied, you cannot
appeal from it. The remedy is to file a petition for
annulment of judgment.
6. Cognovit Judgment – judgment upon a confession.
For example, A files a case against B for collection of 1M,
then B does not file an answer or when he does file an
answer he just admits that he owes the plaintiff 1M.
There is no defense raised. This is different from a
judgment upon the pleadings. The judgment upon
pleadings there might be a defense, and there might be a
denial but the denial is equivalent to an admission
because it is not specific, it is general, it is a negative-
pregnant. However, a judgment upon a confession is
where he really admits it. The court can now render a
judgment based on the confession.
DISTINGUISH JUDGMENT UPON COMPROMISE FROM COGNOVIT
JUDGMENT
JUDGMENT UPON COGNOVIT JUDGMENT
COMPROMISE
There is an agreement signed There is no agreement by the
by the parties. It involves a parties. It is the unilateral act
bilateral act both by the by the defendant admitting
plaintiff and the defendant. liability.
A judgment nunc pro tunc is not proper in the following instances:
1. It cannot remedy errors or omission in an imperfect or
improper judgment;
2. It cannot change the judgment in any material respect; and
3. It cannot correct judicial errors however flagrant and glaring
they may be.
DISCUSSION
Again, when the judgment becomes final and executory, it cannot
be modified or amended anymore. So it becomes immutable
56
pursuant to the rule on immutability of judgement or decision; Only
when there are some omissions which are supposed to be already
found in the records, but are just not incorporated in the decision.
However, it would not be proper in the above-mentioned
instances.
Now, let’s discuss a case that exhaustively discuss what is a
judgment nunc pro tunc.
BRIONES-VASQUEZ versus CA
G.R. No. 144882, February 04, 2005
FACTS
Under an agreement denominated as a pacto de retro sale,
Maria Mendoza Vda. De Ocampo acquired a parcel of land from
Luisa Briones. The latter thereunder reserved the right to
repurchase the parcel of land up to December 31, 1970.
Maria Mendoza Vda. De Ocampo passed away on May 27, 1979.
On June 14, 1990, Hipolita Ocampo Paulite and Eusebio
Mendoza Ocampo, the heirs of Maria Mendoza Vda. De
Ocampo, filed a petition for consolidation of ownership, alleging
that the seller was not able to exercise her privilege to redeem
the property on or before December 31, 1970.
The Regional Trial Court (RTC) of Pili, Camarines Sur, Branch 32
rendered a Decision on January 30, 1992 as follows:
“WHEREFORE, premises considered, judgment is
hereby rendered as follows:
1. Declaring that exh. "A " is a true pacto de retro sale;
2. Declaring that the defendant can still redeem the
property within 30 days from the finality of this
judgment, subject to the provisions of Art. 1616 of
the New Civil Code;
3. No costs.
SO ORDERED.
Plaintiffs therein -- herein private respondents -- appealed the
RTC Decision to the Court of Appeals. On June 29, 1995, the
Court of Appeals promulgated a Decision and disposed of the
case in the following manner:
THE FOREGOING CONSIDERED, the contested decision
is hereby set aside; and declaring the 1970 sale with
right of repurchase, Exhibit "A," as one of an equitable
mortgage.
Unable to effect the execution of the Court of Appeals decision,
petitioner filed with the RTC an omnibus motion, dated May 25,
1999, praying:
WHEREFORE, it is respectfully prayed that an order issue:
a.) Declaring the equitable mortgage, Exhibit "A",
discharged;
b.) Directing the issuance of a Writ of Possession
against the plaintiffs for the delivery of
possession of the land in question to the
defendant.
The RTC denied the omnibus motion in an Order dated
November 16, 1999, which states:

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
v Acting on the omnibus motion of plaintiff dated 25
May 1999 and the opposition thereto of defendant,
and considering that the decision of the Court of
Appeals referring the decision of this Court has
become final and executory, hence, this Court can no
longer alter, modify or add anything thereto, the
prayers set forth in the omnibus motion is, as it is,
hereby denied. SO ORDERED.
Petitioner filed a motion for reconsideration of the above Order,
which was denied by the RTC in an Order dated February 23,
2000.
Petitioner then filed a motion for clarificatory judgment, dated
April 5, 2000, with the Court of Appeals. The motion was denied
in a Resolution, dated June 9, 2000, which reads as follows:
The only issues that reached Us, through an appeal,
was whether the 1970 Sale with Right of Repurchase
was actually an equitable mortgage. We ruled, it was,
necessarily there is nothing to clarify.
If it is a matter however whether the prevailing party
should be entitled to a right to repossess the property,
then the remedy is not with Us, but with the Court
below.
For lack of merit, the Motion for Clarificatory
Judgment is hereby DENIED. SO ORDERED.
Petitioner filed a motion for reconsideration of the above
Resolution. The Court of Appeals denied the same in a
Resolution dated August 3, 2000.
ISSUE: Whether or not the Court of Appeals acted with grave
abuse of discretion amounting to lack of jurisdiction in refusing
to grant petitioner’s motion for clarificatory judgment.
HELD:
It must be noted, as narrated above, that the Decision of the
Court of Appeals had already become final and executory at the
time that the motion for clarificatory judgment was filed.
…nothing is more settled in the law than that when a final
judgment becomes executory, it thereby becomes immutable
and unalterable. The judgment 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, and
regardless of whether the modification is attempted to be made
by the Court rendering it or by the highest Court of the land. The
only recognized exceptions are the correction of clerical errors
or the making of so-called nunc pro tunc entries which cause no
prejudice to any party, and, of course, where the judgment is
void.
As a general rule, therefore, final and executory judgments are
immutable and unalterable except under the three exceptions
named above: a) clerical errors; b) nunc pro tunc entries which
cause no prejudice to any party; and c) void judgments.
In the present case, petitioner claims the second exception, i.e.,
that her motion for clarificatory judgment is for the purpose of
obtaining a nunc pro tunc amendment of the final and
executory Decision of the Court of Appeals.
57
The office of a judgment nunc pro tunc is to record some act of
the court done at a former time which was not then carried into
the record, and the power of a court to make such entries is
restricted to placing upon the record evidence of judicial action
which has been actually taken. It may be used to make the
record speak the truth, but not to make it speak what it did not
speak but ought to have spoken. If the court has not rendered a
judgment that it might or should have rendered, or if it has
rendered an imperfect or improper judgment, it has no power
to remedy these errors or omissions by ordering the entry nunc
pro tunc of a proper judgment. Hence a court in entering a
judgment nunc pro tunc has no power to construe what the
judgment means, but only to enter of record such judgment as
had been formerly rendered, but which had not been entered of
record as rendered. In all cases the exercise of the power to
enter judgments nunc pro tunc presupposes the actual
rendition of a judgment, and a mere right to a judgment will not
furnish the basis for such an entry. (15 R. C. L., pp. 622-623.)
The object of a judgment nunc pro tunc is not the rendering of
a new judgment and the ascertainment and determination of
new rights, but is one placing in proper form on the record, the
judgment that had been previously rendered, to make it speak
the truth, so as to make it show what the judicial action really
was, not to correct judicial errors, such as to render a judgment
which the court ought to have rendered, in place of the one it
did erroneously render, nor to supply nonaction by the court,
however erroneous the judgment may have been. (Wilmerding
vs. Corbin Banking Co., 28 South., 640, 641; 126 Ala., 268.)
A nunc pro tunc entry in practice is an entry made now of
something which was actually previously done, to have effect as
of the former date. Its office is not to supply omitted action by
the court, but to supply an omission in the record of action really
had, but omitted through inadvertence or mistake. (Perkins vs.
Haywood, 31 N. E., 670, 672.)
It is competent for the court to make an entry nunc pro
tunc after the term at which the transaction occurred, even
though the rights of third persons may be affected. But
entries nunc pro tunc will not be ordered except where this can
be done without injustice to either party, and as a nunc pro
tunc order is to supply on the record something which has
actually occurred, it cannot supply omitted action by the court .
. . (15 C. J., pp. 972-973.)
From the above characterization of a nunc pro tunc judgment it
is clear that the judgment petitioner sought through the motion
for clarificatory judgment is outside its scope. Petitioners did not
allege that the Court of Appeals actually took judicial action and
that such action was not included in the Court of Appeals’
Decision by inadvertence. A nunc pro tunc judgment cannot
correct judicial error nor supply non-action by the court.
Since the judgment sought through the motion for clarificatory
judgment is not a nunc pro tunc one, the general rule regarding
final and executory decisions applies. In this case, no motion for
reconsideration having been filed after the Court of Appeals
rendered its decision on June 29, 1995 and an entry of judgment
having been made on July 17, 1996, the same became final and
executory and, hence, is no longer susceptible to amendment.
It, therefore, follows that the Court of Appeals did not act
arbitrarily nor with grave abuse of discretion amounting to lack

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
of jurisdiction when it issued the aforementioned Resolution
denying petitioner’s motion for clarificatory judgment and the
Resolution denying petitioner’s motion for reconsideration.
Nevertheless, for purposes of guiding the parties in the
execution of the aforesaid Decision of the CA, without altering
the same, the following should be noted:
The Court of Appeals pronounced in its Decision that the
contract between the parties is an equitable mortgage. Since
the contract is characterized as a mortgage, the provisions of the
Civil Code governing mortgages apply. Article 2088 of the Civil
Code states:
The creditor cannot appropriate the things given by way of
pledge or mortgage, or dispose of them. Any stipulation to the
contrary is null and void.
This Court has interpreted this provision in the following
manner:
indebtedness. The mortgagor’s default does not operate to vest
in the mortgagee the ownership of the encumbered property,
for any such effect is against public policy, as enunciated by the
Civil Code.
Applying the principle of pactum commissorium specifically to
equitable mortgages, in Montevergin v. CA, the Court
enunciated that the consolidation of ownership in the person of
the mortgagee in equity, merely upon failure of the mortgagor
in equity to pay the obligation, would amount to a pactum
commissorium. The Court further articulated that an action for
consolidation of ownership is an inappropriate remedy on the
part of the mortgagee in equity. The only proper remedy is to
cause the foreclosure of the mortgage in equity. And if the
mortgagee in equity desires to obtain title to the mortgaged
property, the mortgagee in equity may buy it at the foreclosure
sale.
The private respondents do not appear to have caused the
foreclosure of the mortgage much less have they purchased the
property at a foreclosure sale. Petitioner, therefore, retains
ownership of the subject property. The right of ownership
necessarily includes the right to possess, particularly where, as
in this case, there appears to have been no availment of the
remedy of foreclosure of the mortgage on the ground of default
or non-payment of the obligation in question.
DISCUSSION
The position of the petitioner defendant was that their Motion for
Clarificatory judgment was actually just in the nature of a motion
asking the CA to render a judgment nunc pro tunc because it is
actually an exception to the rule that once the decision becomes
final and executory in which case in here, the CA decision had really
become final and executory at the time for the motion for
clarificatory judgment has been filed. But again if it is a judgment
nunc pro tunc even if the decision is final, it can be amended on the
basis of application of a nunc pro tunc judgment, whereby you are
modifying or amending the judgment to incorporate something
already in the records of the case but was just not incorporated in
the judgment.
Here the Supreme Court, again, discussed:
GR: When a final judgment becomes executory, it thereby
becomes immutable and unalterable.
58
XPN:
1. The correction of clerical errors; or
2. The making of so-called nunc pro tunc entries which
cause no prejudice to any party; and
3. Where the judgment is void.
Based on the characterization of an entry nunc pro tunc or
judgment nunc pro tunc, the Supreme Court said that what the
petitioner-defendant sought through the motion for clarificatory
judgment was actually outside the scope of a nunc pro tunc
judgment because here the petitioner-defendants did not allege
that the Court of Appeals actually took judicial action and that
such action was not included in the Court of Appeals’ Decision by
inadvertence. A nunc pro tunc judgment cannot correct judicial
error nor supply non-action by the court.
Again, please remember that the only issue raised before the Court
of Appeals on appeal was whether or not the document
denominated as a pacto de retro sale was really an equitable
mortgage. In the Court of Appeals, there was no proceeding to
determine whether or not equitable mortgage was already
discharged, meaning was the loan already paid which was secured
by the equitable mortgage. It was not mentioned.
Also, the issue of possession was not raised in the Court of Appeals
because here, the plaintiffs were actually in possession of the
property. But when it is a mortgage, the rule here is that possession
still remains with the mortgagor. Only when the property is
foreclosed, and for example, the mortgagor fails to redeem the
property, then ownership shall now be consolidated with the buyer
during the foreclosure sale and of course, possession should be
given to that buyer. But these issues were not raised in the
proceedings of the Court of Appeals. So, you cannot possibly
include in the decision of the Court of Appeals something which was
not made of record during the proceedings in the Court of Appeals
on the premise of a nunc pro tunc judgment. This is not covered.
However, for the guidance of the parties also in the execution, the
Court of Appeals, without rendering a judgment nunc pro tunc in
the resolution, it just mentioned what is the characteristic of an
equitable mortgage. So when it is an equitable mortgage, the loan
mortgages will apply. Under the law on mortgages, we have the
prohibition against automatic appropriation of the property given
by way of pledge or mortgage. It is what we call pactum
commissorium. So just because the mortgagor failed to pay the
loan, it does not authorize the mortgagee to automatically
appropriate the property subject of the pledge or mortgage.
Applying the principle of pactum commissorium, the Supreme
Court said that consolidation of ownership in the person of the
mortgagee in equity only happens when there is a foreclosure sale.
It does not happen merely upon failure of the mortgagor in equity
to pay the obligation. Otherwise, it would result to a pactum
commissorium.
Here, it does not appear that the private respondents caused the
foreclosure of the mortgaged property. It does not also show that
they purchased the property at the foreclosure sale. Necessarily,
the petitioners-defendants, being the mortgagor of the property
which was not yet foreclosed, retained ownership over the subject
property. And ownership necessarily includes the right to possess.
That was the discussion of the Supreme Court.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
ENTRY OF JUDGMENTS AND FINAL ORDERS
Section 2. Entry of judgments and final orders. — If no appeal
or motion for new trial or reconsideration is filed within the time
provided in these Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of entries of
judgments. The date of finality of the judgment or final order
shall be deemed to be the date of its entry. The record shall
contain the dispositive part of the judgment or final order and
shall be signed by the clerk, within a certificate that such
judgment or final order has become final and executory. (2a, 10,
R51)
DISCUSSION
Q: When does a judgment become final and executory?
A: When there is no appeal or motion for new trial or motion for
reconsideration filed within the reglementary period, which is
generally 15 days.
Within 15 days, you can appeal directly if, for example, the decision
is rendered by the Regional Trial Court –
Q: If the decision is adverse to you (the defendant), what would
be your remedy?
A:
1. You can appeal directly with the Court of Appeals;
2. You can file a motion for new trial if there is a ground [for filing
such motion];
3. You can file for a motion for reconsideration.
When you file a motion for reconsideration, you are actually asking
the court for another opportunity to look at the case for the second
time and to maybe correct whatever mistakes that the court might
have done. So, you are giving the court the chance to correct itself.
It must be filed within 15 days. If there is none [filed], in that case,
the judgment has already become final and executory.
Take note that it also depends – if you are the plaintiff, you received
the decision of the court today and you did not file any other
motion or appeal. As to you [plaintiff], the judgment now becomes
final and executory after 15 days from the time you received notice
of such judgment or final order.
But, it does not mean that it is the same case with the defendant
because there are instances when either plaintiff or the defendant
first receives a copy of the final judgment or order. So, it depends.
From the point of view of the defendant, it is within 15 days after
he receives a copy of the final judgment or order and then he does
not file an appeal or MR, so [the final judgment or order] also
becomes final as to him.
“DATE OF FINALITY OF THE JUDGMENT OR FINAL ORDER SHALL BE
DEEMED TO BE THE DATE OF ITS ENTRY”
The Rule says: “The date of finality of the judgment or final order
shall be deemed to be the date of its entry.” In order that there will
be no discrepancy, the date of entry and date of finality is the same.
We can see this in the court. The court issues a certificate of finality
and that shall be date of entry of the judgment or decision.
Q: What is the significance of the date of entry?
A: There are cases wherein [a petition] should be filed within a
certain period from the date of entry. Like Rule 38 on Petition for
59
Relief from Judgment; you can file a petition for relief from
judgment within two time periods, but it says there that it is within
6 months from the date of entry. Here, the date of entry becomes
significant, which is also the date of finality.
Then, the record shall contain the dispositive part of the judgment
or final order and shall be signed by the clerk, with a certificate that
such judgment or final order has become final and executory. In the
record, we won’t see the entire portion [in the certificate of
finality]; only the dispositive portion.
JUDGMENT FOR OR AGAINST ONE OR MORE OF SEVERAL
PARTIES
Section 3. Judgment for or against one or more of several
parties. — Judgment may be given for or against one or more of
several plaintiffs and for or against one or more of several
defendants. When justice so demands, the court may require
the parties on each side to file adversary pleadings as between
themselves and determine their ultimate rights and obligations.
(3)
DISCUSSION
In a case where there are several parties (could be several plaintiffs
or several defendants), it does not mean that the decision is
uniform for all parties. It depends. The court can give relief to one
plaintiff, but not against the other plaintiffs. Or the court can give
relief, meaning the case will be dismissed, as to one defendant or
as to all or some defendants.
SEVERAL JUDGMENTS
Section 4. Several judgments. — In an action against several
defendants, the court may, when a several judgment is proper,
render judgment against one or more of them, leaving the
action to proceed against the others. (4)
DISCUSSION
Section 4 refers to a situation wherein there are several
defendants. But there are cases when in the meantime, the court
can already render judgment as to some of the defendants but not
as to the other defendants.
Q: In that case, can the court first decide the case at to some
defendants? And for the others, it will still proceed?
A: Yes, that is under Section 4. The court can render judgment
against one or more of them, leaving the action to proceed against
the others.
SEPARATE JUDGMENTS
Section 5. Separate judgments. — When more than one claim
for relief is presented in an action, the court, at any stage, upon
a determination of the issues material to a particular claim and
all counterclaims arising out of the transaction or occurrence
which is the subject matter of the claim, may render a separate
judgment disposing of such claim. The judgment shall terminate
the action with respect to the claim so disposed of and the
action shall proceed as to the remaining claims. In case a
separate judgment is rendered the court by order may stay its
enforcement until the rendition of a subsequent judgment or
judgments and may prescribe such conditions as may be
 60
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

necessary to secure the benefit thereof to the party in whose
favor the judgment is rendered. (5a)
DISCUSSION
Here, we are referring to the claim for reliefs from the viewpoint of
the plaintiff – “more than one claim for relief is presented in an
action.” It could be that there is only one plaintiff, but he has
several claims for relief. Recall that it is possible under joinder of
causes of action. Or it could be that there are several plaintiffs and
here, there is also joinder of parties and there are several claims for
relief presented in an action.
It is possible that the court can already decide the other issues or
the other claims presented before the court, but still the others are
ongoing. The court may render a separate judgment disposing of
such claims. Insofar as such claim is concerned, the judgment shall
terminate the action with respect to the claim so disposed of. And
then, the action shall proceed as to the remaining claims.
In the answer of such defendant, the name and
addresses of the persons composing said entity
must all be revealed. (15a)
That is why in the decision, the judgment shall set out their
individual or proper names, if known. That is necessary for the
proper execution [of judgment]. You cannot execute if, for
example, the defendant has no juridical personality because
properties cannot be named in favor of an entity who does not have
a juridical personality. It has to be named in these persons, for
example. The judgment should set out their individual or proper
names to facilitate the execution of the judgment or the final order.

Q: What happens if there is a separate judgment as to the other

claims? Can that already be subject of execution?
A: As a general rule, NO. Because the judgment is not yet final.

Q: Can it be appealed?
A: In summary judgment, there is still something for the court to
do. So, that order is not yet what we call a “final order” because
there is still something that the court has to do. It does not
completely dispose of the case. In a sense, it is still interlocutory.
You wait until the other issues are resolved and then, you appeal.

In civil actions, unlike in special proceedings, we don’t have multiple

appeals – meaning, you appeal after one issue is resolved and you
wait for the other issues to be resolved and then appeal again.

In special proceedings, multiple appeals are allowed. For example,

in probate proceedings, if there is already a determination of
heirship or the will is already admitted to probate, you can already
appeal that although there are other proceedings ongoing, like
partition. That is one distinction between a civil action and a special
proceeding.

JUDGMENT AGAINST ENTITY WITHOUT JURIDICAL PERSONALITY

Section 6. Judgment against entity without juridical

personality. — When judgment is rendered against two or more
persons sued as an entity without juridical personality, the
judgment shall set out their individual or proper names, if
known. (6a)

DISCUSSION
Section 6 is related to what we have discussed in Rule 3, Section 15:

Section 15. Entity without juridical personality as

defendant. — 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.

Like if they are known as the Powerpuff Girls, that is not registered.
In the same provision:

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
POST JUDGMENT REMEDIES – PART 1
COMPILATION OF COMMENTS AND CASES
(RIANO, INIGO AND ESPEJO)
*Compiled and Updated by: JZE and LCYE
INTRODUCTION
In every civil action, there is always a prevailing party or the party
upon whose favor the judgment is rendered. However, the
defeated party is not without any remedy. He is afforded further
chances to prove that he is entitled to prevail. This is where a
thorough knowledge of post judgment remedies comes in handy.
REMEDIES: JUDGMENT BY DEFAULT
The first time we encountered remedies this semester was under
Rule 9 on Default. By way of review, a defaulted defendant is one
who fails to file and serve his answer within the time provided by
the rules. What exactly happens to a defaulted defendant after the
declaration of default? The following consequences apply:
1. The court shall proceed to render judgment granting the
claimant such relief as his pleading may warrant, unless
the court in its discretion requires the claimant to submit
evidence. Such reception of evidence may be delegated
to the clerk of court:
2. A party in default shall be entitled to notice of
subsequent take part in the trial. proceedings but not to
As can be gleaned from the foregoing, the effects of the declaration
of default are quite harsh. The defaulted party loses his standing in
court. However, he is not without remedy. Thus:
1. The defaulted party may file a motion for relief from
order of default. A party declared in default may at any
time AFTER NOTICE THEREOF AND BEFORE JUDGMENT
file a motion under oath to set aside the order of default
upon proper showing that his failure to answer was due
to fraud, accident, mistake or excusable negligence and
that he has a meritorious defense. In such case, the order
of default may be set aside on such terms and conditions
as the judge may impose in the interest of justice. This,
however, is a remedy BEFORE JUDGMENT is rendered;
2. He may also file a petition for certiorari if he has been
illegally declared in default, e.g. during the pendency of
his motion to dismiss or before the expiration of the time
to answer (MATUTE versus COURT OF APPEALS, 26 SCRA
768; ACOSTA OFALIA versus SUNDIAM, 85 SCRA 412).
This is again a remedy prior to the rendition of judgment.
In sum, the foregoing are REMEDIES PRIOR TO THE RENDITION OF
JUDGMENT. A defaulted party cannot appeal from an order
declaring him in default, the order being interlocutory. As a rule,
AN APPEAL IS NOT ALLOWED TO QUESTION AN INTERLOCUTORY
ORDER OR PROCEEDING.
Suppose that the court denies the defendant's motion for relief
from order of default. Thus, the court now proceeds to render
judgment in favor of the plaintiff, with or without the submission of
evidence. What can the defendant do? What are his remedies?
To broaden the inquiry, what remedies are available to any
aggrieved or losing party after the rendition of judgment?
61
There are several means by which is allowed to attack a final
judgment, to wit:
a. Direct action or proceeding to annul the same, or by
motion in another case if, in the latter case, the court had
no jurisdiction to enter the order or to pronounce the
judgment. It is not incidental to, but is the main object of
the proceeding.
b. Collateral attack, in which the purpose of the proceedings
is to obtain some relief, other than the vacation or setting
aside of the judgment and the attack is only incidental. (1
Freemen on Judgments, Sec. 306, pp. 607-608)
c. Petition for relief from judgment or order as authorized
by statutes or by the rules, in the same action or
proceeding in which the judgment order was entered.
(Agustin v. Bocalan, 135 SCRA 346)
TABLE OF POST-JUDGMENT REMEDIES
To guide us in our discussion, please take note of the following table
of the so-called POST JUDGMENT REMEDIES:
POST JUDGMENT REMEDIES
AFTER JUDGMENT BUT AFTER FINALITY OF THE
BEFORE ITS FINALITY JUDGMENT
1. The aggrieved party may file 1. The aggrieved party may
a motion for reconsideration file a petition for relief from
under Rule 37; judgment under Rule 38 on
the grounds of fraud,
2. The aggrieved party may file accident, mistake or
a motion for new trial under excusable negligence;
Rule 37;
2. The aggrieved party may
3. The aggrieved party may file a annulment of judgment
appeal from the judgment under Rule 47 for extrinsic
under Rule 40 or Rule 41, as the fraud or lack of jurisdiction; or
case may be.
3. He may also file a petition
NOTE: No. 3 is available if Nos. for certiorari if the judgment
1 or 2 are denied. The appeal to void on its face or by the
must be from the judgment judicial record (BALANGCAD
itself, not from the order versus JUSTICES OF THE
denying Nos. 1 or 2. COURT OF APPEALS, G.R. No.
83888. February 12, 1992,
206 SCRA 171).
Q: WHEN DOES A JUDGMENT BECOME FINAL AND EXECUTORY?
A: A final judgment or order, or one that disposes of the action or
proceeding, becomes final and executory upon the expiration of
the period to appeal therefrom if no appeal has been duly
perfected (Section 1, Rule 39).
 62
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

FIRST POST-JUDMENT REMEDY provisions of law

(AFTER JUDGMENT BUT BEFORE FINALITY): 2. NDE, shall be alleged to be contrary
MOTION FOR NEW TRIAL OR RECONSIDERATION supported by to such findings or
affidavits of the conclusions.
MOTIONS UNDER RULE 37 AT A GLANCE witnesses by
NEW TRIAL RECONSIDERATION whom such
Within the period for taking an appeal. Note evidence is
that under Rules 40 and 41 (Sections 2 and expected to be
3, respectively), an appeal may be taken given, or by duly
within fifteen (15) days after notice to the authenticated
appellant of the judgment or final order documents which
PERIOD
appealed from. Where a record on appeal is are proposed to
required, the appellant shall file a notice of be introduced in
appeal and a record on appeal within thirty evidence.
(30) days after notice of the judgment or A pro forma motion for new trial or
EFFECT IF PRO
final order. reconsideration shall not toll the
FORMA
1. Fraud, 1. The damages reglementary period of appeal.
accident, mistake awarded are The trial court If the court finds that
or excusable excessive; may set aside the excessive damages
negligence judgment or final have been awarded or
(FAME) which 2. The evidence is order and grant a that the judgment or
ordinary insufficient to justify new trial, upon final order is contrary
prudence could the decision or final such terms as to the evidence or law,
not have guarded order: may be just, or it may amend such
against and by may deny the judgment or final
reason of which 3. The decision or final motion. order accordingly.
such aggrieved order is contrary to
party has law. If a new trial is The judgment as
probably been granted, the amended is in the
impaired in his original judgment nature of a new
GROUNDS rights; or or final order shall judgment which
be vacated, and supersedes the
ACTION OF THE
2. Newly the action shall original one
COURT
discovered stand for trial de (ESQUIVEL versus
evidence (NDE), novo; but the ALEGRE, 172 SCRA
which he could recorded 315).
not, with evidence taken
reasonable upon the former
diligence, have trial, in so far as
discovered an the same is
produced at the material and
trial, and which if competent to
presented would establish the
probably alter the issues, shall be
result. used at the new
The motion shall be made in writing stating trial without
FORM AND the ground or grounds therefor, a written retaking the
NOTICE notice of which shall be served by the same.
movant on the adverse party. Resolved within thirty (30) days from the
RESOLUTION
A motion for new A motion for time it is submitted for resolution.
trial shall be reconsideration shall As a general rule, a second motion for new
proved in the point out specifically trial or motion for reconsideration of a
manner provided the findings or judgment or final order is not allowed, if
for proof of conclusions of the filed by the same party who filed the first
motions. A judgment or final motion. However, take note the following
motion for cause order which are not exception for motion for new trial:
SECOND
SUPPORT based on: supported by the A second motion No exception is
MOTIONS
evidence or which are for new trial, provided for a motion
ALLOWED
1. FAME, shall be contrary to law, based on a for reconsideration
supported by making express ground not under the Amended
affidavits of reference to the existing nor Rules. Jurisprudence
merits which may testimonial or available when allows a second
be rebutted by documentary the first motion motion for
affidavits; evidence or to the was made, may reconsideration "in
 63
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

be filed within the the higher interest of RULE 37

time provided, substantial justice" NEW TRIAL OR RECONSIDERATION
(i.e. period within and in instances of *Compiled and Updated by: JZE and LCYE
which to file an "extraordinarily
appeal) excluding persuasive reasons Section 1. Grounds of and period for filing motion for new trial
the time during and only after an or reconsideration.
which the first express leave shall
motion had been have been obtained." Within the period for taking an appeal, the aggrieved party may
pending. (see LAYA versus move the trial court to set aside the judgment or final order and
COURT OF APPEALS, grant a new trial for one or more of the following causes
The principle to ET.AL., G.R. No. materially affecting the substantial rights of said party:
remember is: a 205813, January 10,
motion for new 2018). (a) Fraud, accident, mistake or excusable negligence which
trial shall include ordinary prudence could not have guarded against and by
all grounds then reason of which such aggrieved party has probably been
available and impaired in his rights; or
those not so
included shall be (b) Newly discovered evidence, which he could not, with
deemed waived. reasonable diligence, have discovered and produced at the trial,
If the grounds for a motion appear to the and which if presented would probably alter the result.
court to affect the issues as to only a part,
or less than all of the matter in controversy, Within the same period, the aggrieved party may also move for
or only one, or less than all, of the parties to reconsideration upon the grounds that the damages awarded
it, the court may order a new trial or grant are excessive, that the evidence is insufficient to justify the
reconsideration as to such issues if decision or final order, or that the decision or final order is
severable without interfering with the contrary to law.
judgment or final order upon the rest.
When less than WHO MAY AVAIL OF THE REMEDIES
all of the issues ALABAN versus COURT OF APPEALS
PARTIAL GRANT
are ordered G.R. No. 156021 | September 23, 2005
OF THE MOTION
retried, the court
may either enter A motion for new trial or reconsideration and a petition for relief
a judgment or from judgment are remedies available only to parties in the
final order as to proceedings where the assailed judgment is rendered. In fact, it
the rest, or stay has been held that a person who was never a party to the case,
the enforcement or even summoned to appear therein, cannot avail of a petition
of such judgment for relief from judgment.
or final order until
after the new Under the Rules of Court, any executor, devisee, or legatee
trial. named in a will, or any other person interested in the estate
An order denying a motion for new trial or may, at any time after the death of the testator, petition the
reconsideration is not appealable, the court having jurisdiction to have the will allowed. Notice of the
REMEDY
remedy being an appeal from the judgment time and place for proving the will must be published for three
or final order. (3) consecutive weeks, in a newspaper of general circulation in
the province, as well as furnished to the designated or other
known heirs, legatees, and devisees of the testator. Thus, it has
been held that a proceeding for the probate of a will is one in
rem, such that with the corresponding publication of the
petition the court's jurisdiction extends to all persons interested
in said will or in the settlement of the estate of the decedent.

Publication is notice to the whole world that the proceeding has

for its object to bar indefinitely all who might be minded to make
an objection of any sort against the right sought to be
established. It is the publication of such notice that brings in the
whole world as a party in the case and vests the court with
jurisdiction to hear and decide it. Thus, even though petitioners
were not mentioned in the petition for probate, they eventually
became parties thereto as a consequence of the publication of
the notice of hearing.

As parties to the probate proceedings, petitioners could have

validly availed of the remedies of motion for new trial or
reconsideration and petition for relief from judgment.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
WITHIN THE PERIOD TO APPEAL
Under Rules 40 and 41 (Sections 2 and 3, respectively), an appeal
may be taken within fifteen (15) days after notice to the appellant
of the judgment or final order appealed from. Where a record on
appeal is required, the appellant shall file a notice of appeal and a
record on appeal within thirty (30) days after notice of the
judgment or final order.
Under Section 3 of Rule 40, a record on appeal shall be required
only in special proceedings and other cases of multiple or separate
appeals.
COUNTED FROM WHAT DATE
The period to appeal begins to run upon receipt of the judgment or
final order. The next question is: upon receipt by whom?
DE LOS SANTOS versus ELIZALDE
February 2, 2007
Such period has been considered to begin upon receipt of notice
by the counsel of record, which is considered notice to the
parties. Service of judgment on the party is prohibited and is not
considered the official receipt of the judgment.
To reiterate, service upon the parties' counsels of record is
tantamount to service upon the parties themselves, but service
upon the parties themselves is not considered service upon their
lawyers. The reason is simple – the parties, generally, have no
formal education or knowledge of the rules of procedure,
specifically, the mechanics of an appeal or availment of legal
remedies; thus, they may also be unaware of the rights and
duties of a litigant relative to the receipt of a decision. More
importantly, it is best for the courts to deal only with one person
in the interest of orderly procedure either the lawyer retained
by the party or the party him/herself if s/he does not intend to
hire a lawyer.
EFFECT OF FILING UPON PERIOD TO APPEAL
The filing of either motion interrupts the period to appeal. For
example, A received a copy of the judgment on March 10, 2010. He
has 15 days, or until March 25 to file an appeal. However. On March
24, he filed a motion for new trial. His motion was denied on April
10.
QUESTIONS:
1. Can he still appeal? Yes, he may appeal from the
judgment but not the order denying the motion for new
trial.
2. How much time does he have left? 15-14 1 day left? No.
You have to relate this with the principles on motions.
Thus, if the motion is pro-forma, he has no time left to file
an appeal.
Rule 37, Section 2. XXX A pro forma motion for new trial or
reconsideration shall not toll the reglementary period of
appeal.
ANSWER: FRESH PERIOD RULE
SUMIRAN versus SPOUSES DAMASO
G.R. No. 162518 | August 19, 2009
As early as 2005, the Court categorically declared in Neypes v.
Court of Appeals that by virtue of the power of the Supreme
Court to amend, repeal and create new procedural rules in all
64
courts, the Court is allowing a fresh period of 15 days within
which to file a notice of appeal in the RTC, counted from receipt
of the order dismissing or denying a motion for new trial or
motion for reconsideration. This would standardize the appeal
periods provided in the Rules and do away with the confusion as
to when the 15-day appeal period should be counted. Thus, the
Court stated:
To recapitulate, a party-litigant may either file his
notice of appeal within 15 days from receipt of the
Regional Trial Court's decision or file it within 15 days
from receipt of the order (the "final order") denying
his motion for new trial or motion for reconsideration.
Obviously, the new 15-day period may be availed of
only if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the
original appeal period provided in Rule 41, Section 3.
The foregoing ruling of the Court was reiterated in Makati
Insurance Co., Inc. v. Reyes, to wit
Propitious to petitioner is Neypes v. Court of Appeals,
promulgated on 14 September 2005 while the present
Petition was already pending before us. x x x
With the advent of the "fresh period rule," parties who
availed themselves of the remedy of motion for
reconsideration are now allowed to file a notice of
appeal within fifteen days from the denial of that
motion.
The "fresh period rule" is not inconsistent with Rule
41, Section 3 of the Revised Rules of Court which
states that the appeal shall be taken "within fifteen
(15) days from notice of judgment or final order
appealed from." The use of the disjunctive word "or"
signifies disassociation and independence of one thing
from another. It should, as a rule, be construed in the
sense which it ordinarily implies. Hence, the use of
"or" in the above provision supposes that the notice
of appeal may be filed within 15 days from the notice
of judgment or within 15 days from notice of the "final
order," x x x
The "fresh period rule" finally eradicates the confusion
as to when the 15-day appeal period should be
counted from receipt of notice of judgment or from
receipt of notice of "final order" appealed from.
FRESH PERIOD COUNTED FROM?
Taking our bearings from Neypes, in Sumaway v. Urban Bank, Inc.,
we set aside the denial of a notice of appeal which was purportedly
filed five days late. With the fresh period rule, the 15-day period
within which to file the notice of appeal was counted from notice
of the denial of the therein petitioner's motion for reconsideration.
We followed suit in Elbiña v. Ceniza, wherein we applied the
principle granting a fresh period of 15 days within which to file the
notice of appeal, counted from receipt of the order dismissing a
motion for new trial or motion for reconsideration or any final
order or resolution.
Thereafter, in First Aqua Sugar Traders, Inc. v. Bank of the
Philippine Islands, we held that a party-litigant may now file his
 65
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

notice of appeal either within fifteen days from receipt of the
original decision or within fifteen days from the receipt of the order
denying the motion for reconsideration.
RETROACTIVE EFFECT
In De los Santos v. Vda. de Mangubat, we applied the same
principle of fresh period rule," expostulating that procedural law
refers to the adjective law which prescribes rules and forms of
procedure in order that courts may be able to administer justice.
Procedural laws do not come within the legal conception of a
retroactive law, or the general rule against the retroactive
operation of statutes. The "fresh period rule" is irrefragably
procedural, prescribing the manner in which the appropriate period
for appeal is to be computed or determined and, therefore, can be
made applicable to actions pending upon its effectivity, such as the
present case, without danger of violating anyone else's rights.
trial, motion for reconsideration (whether full or partial) or any
final order or resolution.
RULE PRIOR TO NEYPES
Prior to Neypes, if a party file a motion for new trial or a motion for
reconsideration, he only had the remaining time of 15-day appeal
period to file the notice of appeal (Lacsamana vs. IAC [2nd Division],
227 Phil 606). This rule has been consistently applied to numerous
cases and this interpretation was premised on period permitted by
law is not only mandatory but also jurisdictional.
The rule is also founded on deep-seated considerations of policy
and sound practice that, at risk of occasional error, the judgments
and awards of courts must become final at some time fixed by law
(Quelnan vs. VHF Phil., 433 SCRA 631; Apuyan vs, Hadelman, 438
SCRA 402).

The retroactivity of the Neypes rule in cases where the period for GROUNDS: MOTION FOR NEW TRIAL
appeal had lapsed prior to the date of promulgation of Neypes on
September 14, 2005, was clearly explained by the Court in Fil-Estate The following grounds for a new trial must affect the substantial
Properties, Inc. v. Homena-Valencia, stating thus: rights of the aggrieved party:
1. Fraud, accident, mistake or excusable negligence (FAME)
The determinative issue is whether the “fresh period” rule which ordinary prudence could not have guarded against
announced in Neypes could retroactively apply in cases and by reason of which such aggrieved oarty has probably
where the period for appeal had elapsed prior to 14 been impaired in his rights; or
September 2005 when Neypes was promulgated. That 2. Newly discovered evidence (NDE), which he could not,,
question may be answered with the guidance of the generl with reasonable diligence have discovered and produced
rule that procedural laws may be given retroactive effect to at the trial, and which if presented would probably alter
actions pending and undetermined at the time of their the result.
passage there being no vested rights in the rules of
procedure. Amendments to procedural rules are Note that the grounds for new trial are not available as grounds for
procedural or remedial in character as they do not create reconsideration (CO vs. People, GR No. 160265, July 13, 2009).
new or remove vested rights but only operate in
furtherance of the remedy or confirmation of rights already FAME (FRAUD, ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE)
existing.
These incidents comprising the first ground were previously
Since this case was already pending in this Court at the time of discussed in Rule 9 on Default, where ground relied upon to lift an
promulgation of Neypes, then, ineluctably, the Court must also order of default is the same (fraud, accident, mistake or excusable
apply the foregoing rulings to the present case. Petitioner is negligence).
entitled to a “fresh period” of 15 days- counted form May 19, 2003,
the date of petitioner’s receipt of the Order denying his motion for Defendant Remedy is to file If he fails to file a
reconsideration of the RTC Decision- within which to file his notice declared in default a motion for motion for relied
of appeal. Therefore, when he filed said notice on May 29, 2003, or under Rule 9 relief from order from order of default,
only ten (10) days after receipt of the Order denying his motion for because he failed of default on the he may also avail of
reconsideration, his period to appeal had not yet lapsed. to file an answer ground of FAME Rule 37 or a motion
because of FAME. and that he has for new trial because,
APPLICABILITY OF NEYPES DOCTRINE a meritorious on the ground of
NEYPES, ET.AL vs. COURT OF APPEALS defense. This FAME, he was not
GR. NO. 141524, September 14, 2005 must be availed able to appear. This
(EN BANC) of after receipt can be filed after
To standardize the appeal periods provided in the Rules and to of order receipt of judgment
afford litigants fair opportunity to appeal their case, the Court declaring him in but before the same
of Appeals deems it practical to allow a fresh period of 15 days default but attains finality.
within which to file the notice of appeal in the Regional Trial before
Court, counted from the receipt of the order dismissing a motion judgment.
for a new trial or motion for reconsideration. Party (whether Remedy is to file If he fails to file a
Henceforth, this “fresh period rule” shall also apply to Rule 40 plaintiff or a motion for motion for new trial
governing appeals from the Municipal Trial Courts to the defendant) lost in new trial on the and the judgment had
Regional Trial Courts; Rule 42 on petitions for review from the the case because of ground of FAME. become final and
Regional Trial Courts to the Court of Appeals; Rule 43 on appeals FAME. executor, he may still
from quasi-judicial agencies to the Court of Appeals and Rule 45 file a petition for
governing appeals by certiorari to the Supreme Court. The new relief from judgment
rule aims to regiment or make the appeal period uniform, to be under Rule 37.
counted from receipt of the order denying the motion for new

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Rule 37 on motion for new trial on the ground of FAME is broader.
It applies to plaintiff and defendant whether in default or not
because a defendant can still lose the case through FAME although
he is not in default. For example, because of his failure to appear in
the case, the court dismissed the complaint filed by the plaintiff.
However, the reason why the3 plaintiff failed to appear is because
of FAME. So the remedy for plaintiff is to move to set aside the
dismissal and have the case continued by filing a motion for new
trial on the ground of FAME.
Rule 37 also applies to a defendant declared in default.
FRAUD
Fraud may assume different shapes and may be committed in as
many different ways and here lies the danger of attempting to
define fraud. For man in his ingenuity and fertile imagination will
always contrive new schemes to for the unwary. (Heirs of Pael, et
al., vs Court of Appeals, et al., GR No. 133547; Destura v. Court of
Appeals)
KINDS OF FRAUD
Garcia vs. Court of Appeals
202 SCRA 228 [1991]
EXTRINSIC FRAUD is that type of fraud which has prevented a
party from having a trial or from presenting his case in court.
INTRINSIC FRAUD is based on the acts of a party in litigation
during the trial, such as the use of forged instruments or perjured
testimony, which did not affect the presentation of the case, but
did not prevent the fair and just determination of the case.
MEANING OF EXTRINSIC FRAUD
It is also known as collateral fraud. Fraud is extrinsic when it is
committed to deprive a party of his day in court, thereby preventing
him from asserting his rights to property. Fraud is regarded as
extrinsic when it prevents a party from having a trial or from
presenting his entire case to the court, or where it operates upon
matters pertaining not to the judgment itself but to the manner in
which it is procured (Alarcon vs. Court of Appeals, et al, GR No.
126802, prom January 28, 2000).
It refers to any fraudulent act of the prevailing party which is
committed outside the trial of the case, the effect of which
prevents a party from having a trial or from presenting not to the
judgment itself but to the manner in which it was procured so that
there is not a fair submission of the controversy. (Strait Times, etc
vs. Court of Appeals, et al., GR No. 126673, prom. August 28, 1998)
In other words, extrinsic fraud refers to any fraudulent act of the
prevailing party which is committed outside the trial of the case,
whereby the defeated party has been prevented from exhibiting
fully his side of the case by fraud or deception practiced on him by
his opponent. (Heirs of Pael, et al., vs Court of Appeals, et al., GR
No. 133547; Destura v. Court of Appeals, et al., GR No. 133843,
prom. February 10, 2000)
Some act or conduct of the prevailing party which has prevented
the aggrieved party from having a trial or presenting his case to the
court, or was used to procure judgment without a fair submission
of his controversy. (Salonga, et al, vs. Court of Appeals, et al. GR No.
11478 prom. March 13, 1997)
66
CIRCUMSTANCES WHERE EXTRINSIC FRAUD PRESENT
1. Where the unsuccessful party had been prevented from
exhibiting fully his case by fraud or deception practiced
on him by his opponent, as by keeping him away from
court, a false promise of a compromise; or
2. Where the defendant never had knowledge of the suit,
being kept in ignorance by the acts of the plaintiff; or
where an attorney fraudulently or without authority
assumes to represent a party and connives at his defeat;
or
3. Where the attorney regularly employed corruptly sells
out his client’s interest to the other side. (Strait Times, etc
vs. Court of Appeals, et al., GR No. 126673, prom. August
28, 1998)
MEANING OF INTRINSIC FRAUD
These are acts of party at a trial which prevented a fair and just
determination of the case and which could have been litigated and
determined at the trial or adjudication of the case.
FRAUD AS A GROUND FOR NEW TRIAL
FRAUD, to be a ground for new trial, must be EXTRINSIC – where
the aggrieved party was misled by adverse party and by reason
thereof, he was prevented from presenting his case properly
(GISBURNE SUPPLY CO. vs. QUIOGUE, 34 Phil. 91; ALMEDA vs.
CRUZ, 84 Phil. 636; STERLING INVESTMENT CORP. vs. RUIZ, L-30694,
Oct. 31, 1969). Intrinsic fraud is not as a ground for a new trial.
DEAN INIGO’S EXAMPLES:
Suppose I am the lawyer of the plaintiff and you are the lawyer of
the defendant. The case will be tried tomorrow. I called you up and
asked you to postpone the trial. “I will tell the court that I talked to
you and you agreed that the trial will be postponed.” The following
day, I appeared in court. When the case is called, I said that I’m
ready. I then moved to continue the trial without the defendant. I
maneuvered a scheme in such a way that you will not appear in
court. You lost your opportunity to present your side. That is
EXTRINSIC FRAUD by the plaintiff’s lawyer.
Suppose there is a case between you and me. During the trial, I
presented witnesses to prove my cause of action. All my witnesses
were lying- they testified falsely. I presented falsified documents to
prove my case. And I won the case because of those perjured
testimonies and falsified documents. You file a motion for new trial
alleging FRAUD- that the testimonies and documents were falsified.
Q: Should your motion for new trial be granted?
A: NO. Your motion will be denied because the FRAUD is INTRINSIC
because you were not prevented from going to court. So, your
remedy is to expose my perjured and falsified evidence. You can
present rebuttal evidence. It is your obligation to prove that my
witnesses are lying and my documents are false. Definitely, you
cannot ask a motion for a new trial.
ACCIDENT
What is ACCIDENT? It is something unforeseen, something
unexpected or unanticipated. When is accident a sufficient ground
for new trial?
EXAMPLE 1: A party failed to appear in court because he got sick at
the last minute. Or, in the middle of the trial, the lawyer of the party
becomes sick. With that, the complaint was dismissed or there was
a judgment against you. You can move for new trial on the ground
for accident. (Phil. Engineering Co. vs, Argosino, 49 Phil. 983)

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
EXAMPLE 2: The defendant was declared in default because he did
not file an answer but actually he filed an answer through mail, but
somehow the post office did not deliver it to the court. That is an
accident. With that, I can move for new trial or lift the order of
default. (Ong Guan Can vs. Century Ins. Co., 45 Phil. 667).
EXAMPLE 3: The trial was this morning. But I received only the
notice of trial on March 9, 1998 stating that the trial is on March 5.
So the notice of hearing was received days after the scheduled
date. That is an accident which is a ground for new trial. (Soloria vs.
Dela Cruz, L-20738, Jan. 31, 1966)
MISTAKE
EXAMPLE: Defendant received summons and complaint. The
defendant, instead of seeking assistance of a lawyer, went to the
plaintiff and asked for settlement. They kept on talking with the
settlement but in the meantime, the period to file an answer is also
running. Fifteen days had passed but they did not settle yet.
Plaintiff moved to declare defendant in default. The court issued
judgment on default. Defendant’s counsel filed a motion for new
trial on the ground of MISTAKE. The court granted it. (Salazar vs.
Salazar, 8 Phil 183)
LAWYER’S MISTAKE BINDS THE PARTY
Spouses Ragudo vs. Fabella Estate Tenants Asssociation, Inc.
GR No. 146823, August 9, 2005
In his jurisdiction, well-entrenched is the rule that the mistake
an negligence of counsel to introduce, during the trial of a case,
certain pieces of evidence bind his client. For sure, in Aguila vs.
Court of First Instance of Batangas, 160 SCRA 352 (1988), we
even ruled that the omitted evidence by reason of counsel’s
mistake or negligence, cannot be invoked as a ground for new
trial;
On the effects of counsel’s acts upon his client this
Court has categorically declared:
It has been repeatedly enunciated that ‘a client is
bound by the action of his counsel in the conduct of a
case and cannot be heard to complain that the result
might have been different had he proceeded
differently. A client is bound by the mistake off his
lawyer. If such grunds were to be admitted and
reasons for reopening cases, there would never be an
end to a suit so long as new counsel could be
employed who could allege and shoe that prior
counsel had had not been sufficiently diligent or
experienced or learned. Xxx Mistakes of attorneys as
to the competency of a witness, the sufficiency,
relevancy, or irrelevancy of certain evidence, to
summon witnesses and to argue the case are not
proper grounds for a new trial, unless the
incompetency of counsel is so great that his client is
prejudiced and prevented from properly presenting
his case. (Vol. 2, Moron, Comments on the Rules of
Court, pp. 218, 219-220, citing Rivero v. Santos et al.,
98 Phil 500, 503-504; Isaac v. Mendoza, 89 Phil 279;
Montes v. Court 48 Phil 64; People v. Manzanilla, 43
Phil 167; U.S v. Umali, 15 Phil. 33; see also People v.
Ner, 28 SCRA 1151, 1164). In the 1988 case of Palanca
v. American Food, etc. (24 SCRA 819, 828), this
principle was reiterated. (Tesoro v. Court of Appeals,
54 SCRA 296, 304). [Citations in the original; Emphasis
supplied].
67
This is, as it should be, because a counsel has the implied
authority to do all acts which are necessary or, at least,
incidental to the prosecution and management of the suit in
behalf of his client. And, any act performed by counsel within
the scope of his general and implied authority is, in the eyes of
the law, regarded as the act of the client himself and
consequently, the mistake or negligence of the client’s counsel
may result in the rendition of an unfavourable judgment against
him.
A contrary rule would be inimical to the greater interest of
dispensing justice. For, all that a losing party will do is to invoke
the mistake or negligence of his counsel as a ground for
reversing or settling aside a judgment adverse to him, thereby
putting no end to litigation. Again, to quote from our decision in
Aguila:
Now petitioner wants us to nullify all of the
antecedent proceedings and recognize his earlier
claims to the disputed property on the justification
that his counsel was grossly inept. Such a reason is
hardly plausible as the petitioner’s new counsel
should know. Otherwise, all a defeated party would
have to do to salvage his case is claim neglect or
mistake on the part of his counsel as a ground for
reversing the adverse judgment. There would be no
end to litigation if this were allowed as every
shortcoming of counsel could be the subject of
challenge by his client through another counsel who,
if he is also found wanting, would likewise be
disowned by the sae client through another counsel,
and so on ad infinitum. This would render court
proceedings indefinite, tentative and subject to
reopening at any time by the mere subterfuge of
replacing counsel.
Admittedly, the rule thus stated admits of exceptions. Thus, in
case where the counsel’s mistake is so great and serious that the
client is prejudiced and denied his day in court or when he is
guilty a of gross negligence resulting in the client’s deprivation
of his property without due process of law, the client is not
bound by his counsel’s mistakes and the case may be even be
reopened in order to give the client another chance to present
his case.
EXCUSABLE NEGLIGENCE
The negligence of care required a (party) is that which an ordinarily
prudent man bestows upon his important business (GAYLORD v.
BERRY, 169 N.C. 733) The client must, with regard to his case,
exercise that standard of case which an ordinary prudent man
bestows upon his important business (Spouses Adecer vs. Akut,
May 3, 2006).
WHOSE NEGLIGENCE?
QUE VS. COURT OF APPEALS
GR No. 150739, August 18, 2005
Under Section 1 of the “negligence” must be excusable and
generally imputable to the party because if it is imputable to the
counsel, it is binding on the client. To follow a contrary rule and
allow a party to disown his counsel’s conduct would render
proceedings indefinite, tentative and subject to reopening by
the mere subterfuge of replacing counsel. What the aggrieved
 68
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

litigant should do is seek administrative sanctions against the GROUNDS: MOTION FOR RECONSIDERATION
erring counsel and not ask for the reversal of the court’s ruling.
1. The damages awarded are excessive;
Admittedly, this court has relaxed the rule on the binding effect 2. The evidence is insufficient to justify the decision or
of counsels negligence and allowed a litigant another chance to final order;
present his case”(1)where the reckless or gross negligence of 3. The decision or final order is contrary to law.
counsel deprives the client of due process of law; (2) when [the
rule’s] application will result in outright deprivation of the Note that this is not the same as a motion for reconsideration
client’s liberty or property; or (3) where the interests of justice of interlocutory orders as a precursor to the filing of a petition
so require.” for certiorari.

NEGLIGENCE OF CLERKS AND MEMBERS OF LAWYER’S STAFF
YUJUICO vs. ATIENZA
GR No. 164282, October 12, 2005
Reiterated in numerous cases is thee rule that the clerks’ faults
are attributable to the handling lawyers. Thus, excuse offered
based on the former’s negligence are not deemed excusable.
NEWLY DISCOVERED EVIDENCE:
REQUISITES
1. The evidence was discovered after trial. This means
that the evidence was not negligently omitted or
forgotten during trial;
2. The evidence must be such that the party could not,
with reasonable diligence, have discovered and
produced it at the trial; and
3. If presented, the evidence would probably alter the
result.
REOPENING OF TRIAL
Is there such a remedy as a motion for reopening of trial? Yes. This
is recognized under the Rules of Summary Procedure (and even in
the Rules for Small Claims Cases), to wit:
Section 2. Contents of motion for new trial or reconsideration
and notice thereof.- The motion shall be made in writing stating
the ground or ground therefor, a written notice of which shall
be served by the movant on the adverse party.
A motion for new trial shall be proved in the manner
provided for proof of motions. A motion for the cause
mentioned in paragraph (a) of the preceding section shall be
supported by affidavits of merits which may be rebutted by
affidavits. A motion for the cause mentioned in paragraph (b)
shall be supported by affidavits of the witnesses by whom such
evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.
A motion for reconsideration shall point out specifically the
findings or conclusions of the judgment or final order which are
not supported by the evidence or which are contrary to law,
making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to
such findings or conclusions.
A pro forma motion for new trial or reconsideration shall not toll
the reglementary period of appeal.

Sec. 19. Prohibited pleadings and motion. – The PROVED IN THE MANNER PROVIDED FOR PROOF OF MOTION
following pleadings, motions or petitions shall not be Rule 15, Section 3. Contents. — A motion shall state the
allowed in the cases covered by this Rule: relief sought to be obtained and the grounds upon which
it is based, and if required by these Rules or necessary to
XXX prove facts alleged therein, shall be accompanied by
supporting affidavits and other papers. (3)
(c) Motion for new trial, or for reconsideration of a
judgment, or for opening of a trial; A motion for new A motion for
(d) Petition for relief from judgment; XXX trial shall be A reconsideration
motion for shall point out
However, this remedy is not found in the Rules of Court but reconsideration specifically the
jurisprudence recognizes its existence. New trial should be proved in the findings or
distinguished from exercise of the discretionary power of the court manner provided conclusions of the
to REOPEN a trial for the introduction of additional evidence, to shall point out judgment or final
clarify its doubts on material points. This discretionary power is specifically the for order which are
subject to no rule other than the paramount interest of justice and proof of motions. A not supported by
will not be reviewed on appeal unless the exercise thereof is abused SUPPORT motion findings or the evidence or
(Arce vs. Arce, L-13035, Nov. 28, 1959). AFFIDAVITS conclusions of the which are contrary
for cause based on: to law, making
NEW TRIAL REOPENING OF TRIAL express reference
Takes place after judgment Done before judgment 1. FAME, shall be to the testimonial
Based on grounds defined in Dictated by the interest of supported by or documentary
the Rules justice affidavits of merits evidence or to the
Always on motion by the May be done by the court which may be provisions of law
aggrieved party motu proprio rebutted by alleged to be
affidavits. contrary to such
findings or
conclusions.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
2. NDE, shall be
supported by
affidavits of the
witness by whom
such evidence is
expected to be
given, or by duly
authenticated
documents which
are proposed to be
introduced in
evidence.
Take note as well that both a motion for new trial and a motion for
reconsideration are considered litigious motions under Rule 15,
Section 5. The following are the effects of this classification:
The opposing party shall file his or her
opposition to either a motion for new trial or
a motion for reconsideration within five (5)
OPPOSITION
calendar days from receipt thereof. No other
submissions shall be considered by the court
in the resolution of the motion.
While Rule 15 provides that a litigious 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, Rule 37,
Section 4 provides that a motion for new trial
or reconsideration shall be resolved within
thirty (30) days from the time it is submitted
RESOLUTION
for resolution. Take note that Rule 37 (and all
succeeding rules up to Rule 56) were
unaffected by the amendments. Thus, the
special provision on the period to resolve
motions for new trial or reconsideration (Rule
37, Section 4) prevails over the counterpart
provision governing motions in general [Rule
15, Section 5c)].
Under Rule 15, Section 6, the court may, in
the exercise of its discretion, and if deemed
necessary for its resolution, call a hearing on
HEARING
the motion. The notice of hearing shall be
addressed to all parties concerned, and shall
specify the time and date of the hearing.
Because both motions for new trial and for
reconsideration are intended to cause a
judgment to be set aside, they are motions
"attacking a pleading, order, judgment, or
OMNIBUS proceeding." As such, they are subject to the
MOTION Omnibus Motion Rule under Rule 15, Section
9. Thus, a motion filed under Rule 37 should
include all objections then available, and all
objections not so included shall be deemed
waived.
OTHER INSTANCES WHEN AN AFFIDAVIT IS REQUIRED TO BE
ATTACHED TO A MOTION OR APPLICATION
1. Motion to lift order of default under Rule 9;
2. Rule 14, Section 17 which provides that: Section 17.
Leave of court. – Any application to the court under this
Rule for leave to effect service in any manner for which
leave of court is necessary shall be made by motion in
writing, supported by affidavit of the plaintiff or some
69
person on his behalf, setting forth the grounds for the
application.
3. Petition for relief from judgment under Rule 38;
4. Motion to postpone trial under Rule 30, Sections 3
(illness of party or counsel);
5. Motion for summary judgment under Rule 35;
6. Prayer for preliminary attachment under Rule 57,
Section 3;
7. Prayer for preliminary injunction under Rule 58;
8. Application for replevin under Rule 60;
9. Support pendent lite under Rule 61.
AFFIDAVIT OF MERITS
An affidavit of merits is one setting forth that the defendant has a
meritorious defense (substantial and not technical) and stating the
facts constituting the same (Black's Law Dictionary, 4th ed., p. 80).
Note that question No. 9 of the 2007 Bar Examination for Legal
Ethics and Practical Exercises required the preparation of an
affidavit of merits.
HOW MANY AFFIDAVITS ARE REQUIRED UNDER RULE 37
(MOTION FOR NEW TRIAL)?
There are two. First, there should be an affidavit stating which
recites the nature and character of the absolutory cause (fraud,
accident, mistake or excusable negligence) on which a motion
seeking relief is based. Second, there should also be an Affidavit of
Merits, setting forth the movant's good or substantial cause of
action or defense where he must also describe the evidence which
the movant intends to present should the motion be granted, which
evidence should be such as to warrant a reasonable belief that the
result of the case would probably be otherwise.
PCIB versus ORTIZ, ET AL.
G.R. No. L-49223, May 29, 1987
It is true that when fraud, accident, mistake or excusable
negligence is invoked as ground of a motion for new trial, it
should "be proved in the manner provided for proof of motions,"
i.e., by "affidavits or depositions" unless the court should direct
that "the matter be heard wholly or partly on oral testimony or
depositions." It is also required that "affidavits of merits" be
attached to the motion. A motion for new trial grounded on
fraud, accident, mistake or excusable negligence should thus
ordinarily be accompanied by two (2) affidavits: one, setting
forth the facts and circumstances alleged to constitute such
fraud, accident, mistake, or excusable negligence; and the other,
an affidavit of merits, setting forth the particular facts claimed
to constitute the movant's meritorious cause of action or
defense. The reason for the first is quite obvious: it is to enable
the court to determine if the movant's claim of fraud, etc., is not
a mere conclusion but is indeed borne out by the relevant facts.
The reason for the second is equally evident: it would be useless,
a waste of time, to set aside the judgment and reopen the case
to allow the movant to adduce evidence when he has no valid
cause of action or meritorious defense.
Where, therefore, a motion for new trial on the ground of fraud,
etc., is unaccompanied by either or both affidavits, the motion
is pro forma a scrap of paper, as it were, and will not interrupt
the running of the period of appeal. But where, as here, the
motion for new trial is founded not only on fraud, accident,
mistake or excusable negligence, but also on the ground of
"award of excessive damages," as to which no affidavit of fraud,
etc., or of merits is required, what being required of the movant
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

being to "point out specifically the findings or conclusions of the
judgment" demonstrating the invoked ground,
the motion cannot be denied as pro forma simply because no
affidavit of merits is appended thereto, provided there be a
specification of the findings or conclusions of the judgment
alleged to be erroneous because awarding excessive damages.
The tenability of the grounds is dependent upon different
premises. The untenability of one does not of itself, render the
other unmeritorious.
MOTION FOR RECONSIDERATION
A motion for reconsideration shall point out specifically the findings
or conclusions of the judgment or final order which are not
supported by the evidence or which are contrary to law, making
express reference to the testimonial or documentary evidence or
to the provisions of law alleged to be contrary to such findings or
conclusions. Failure to follow these requirements renders the
motion pro forma.
PRO FORMA MOTIONS

AFFIDAVIT SETTING LAW AND JURISPRUDENCE TABLE

AFFIDAVIT OF
FORTH THE It is a motion filed for the sake
MERITS of form or compliance. It is
ABSOLUTORY CAUSES
The facts and The particular facts one which does not satisfy the
circumstances alleged claimed to constitute requirements of the Rules and
to constitute such the movant’s which will be treated as a
CONTENT DEFINITION motion intended to delay the
fraud, accident mistake, meritorious cause of
or excusable action or defense. proceedings (MARIKINA
negligence. VALLEY DEVELOPMENT
Rule 15 on proof of Rule 37, Sections 1 CORPORATION versus FLOJO,
motions i.e., by and 2 (second G.R. No. 110801 December 8,
BASIS 1995)
"affidavits or paragraph)
depositions” A pro forma motion for new
To enable the court to It would be useless, a EFFECT OF FILING UNDER trial or reconsideration shall
determine if the waste of time, to set RULE 37 not toll the reglementary
movant's of time, to set aside the judgement period of appeal.
aside the claim of fraud, and reopen the cause MOTIONS IN MOTION FOR MOTION FOR
etc., is not a mere to allow movant to GENERAL NEW TRIAL RECONSIDERATION
RATIONALE conclusion but is indeed adduce evidence 1. A motion which 1. A motion for 1. A second motion
borne out by relevant when he has no valid does state the new trial based for reconsideration.
facts. cause of action or relief sough to be exactly on the very
meritorious defense obtained ground alleged in 2. A one sentence
(MARCIAL versus the first for motion for
HI-CEMENT, G.R. reconsideration reconsideration
Where a motion for new trial on the ground of No. 144900, (see SAMUNDO that does not point
fraud, etc., is unaccompanied by either or both November 18, versus MUN. OF out specifically the
EFFECT OF affidavits, the motion is pro forma a scrap of 2005); GANIZA, 100 Phil findings or
ABSENCE paper, as it were, and will not interrupt the 1013 [1957]); conclusions of the
running of the period of appeal (PCIB versus 2. A motion that is judgement or final
ORTIZ, G.R. No. L-49223, May 29, 1987). unsigned; 2. The absolutory order which are not
cause is mistake of supported by the
3. A motion that law (REYES versus evidence or which
INSTANCES WHEN AN AFFIDAVIT OF MERITS IS REQUIRED was not served CA, G.R. No. L- are contrary to law
1. Motion to lift order of default under Rule 9; upon the adverse 48960, June 29, (see CRISOSTOMO
2. Motion for new trial on the ground of FAME under Rule party as required 1943); versus CA, 32 SCRA
37; by the Rules. 54 [1970]);
3. Petition for relief from judgment under Rule 38; 3. A motion for
4. Prayer for preliminary attachment under Rule 57, new trial on the 3. A motion for
Section 3; and ground of FAME reconsideration
5. Petition for the correction of clerical or typographical but which is not which failed to
errors and change of first name or nickname accompanied by substantiated the
implementing rules and regulations of RA 9048. The the required alleged errors
petition shall be in the prescribed form of an affidavit, affidavits of (LUZON verus CIR, 8
subscribed and sworn to before any person authorized by witnesses under SCRA 447 [1963]);
law to administer oath. The affidavit shall set forth facts Rule 37, Section 2;
necessary to establish the merits of the petition and shall 4. A motion which
show affirmatively that the petitioner is competent to 4. A motion for merely alleges that
testify to the matters stated. The petitioner shall state the new trial on the the decision in
particular erroneous entry or entries sought to be ground of NDE, question is contrary
corrected or the first name sought to be changed, and the etc., to law or the facts
correction or change to be made. unaccompanied by of the case
the required (VILLARICA versus
affidavits of
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

witnesses under CA, 57 SCRA 24 Court of First Instance of Lanao del Sur, to point out that a
Rule 37, Section 2; [1974]); pleader preparing a motion for reconsideration must of necessity
address the arguments made or accepted by the trial court in its
5. One that is 5. One without decision:
clearly intended prior notice to the
for delay; adverse party; . . . . Among the ends to which a motion for reconsideration
is addressed, one is precisely to convince the court that its
6. One that does 6. A motion which ruling is erroneous and improper, contrary to the law or the
not satisfy the has no other evidence (Rule 37, Section 1, subsection (c]); and in doing so,
formal purpose than to the movant has to dwell of necessity upon the issues passed
requirements of gain time (ESTRADA upon by the court. If a motion for reconsideration may not
Rule 15 (notice, vs. STO. DOMINGO) discuss these issues, the consequence would be that after a
etc) and Rule 37 decision is rendered, the losing party would be confined to
(MANILA SURETY filing only motions for reopening and new trial. We find in
AND FIDELITY CO., the Rules of Court no warrant for ruling to that effect, a
INC. versus BATCH ruling that would, in effect eliminate subsection (c) of
CONSTRUCTION, Section 1 of Rule 37. (Emphases supplied)
G.R. No. L-16636,
June 24, 1965); The movant is very often confined to the amplification or further
discussion of the same issues already passed upon by the trial
7. A second motion court. Otherwise, his remedy would not be a reconsideration of
for new trial on a the decision, but a new trial or some other remedy.
ground already
available o the OTHER POINTS
movant when he MARIKINA VALLEY DEVELOPMENT CORP. versus FLOJO
filed his first G.R. No. 110801 December 8, 1995
motion for new EN BANC
trial (Rule 37,
Section 5). Where a substantial bonafide effort is made to explain where
and why the trial court should be regarded as having erred in its
PHILIPPINE ADVERTISING COUNSELORS, INC. versus REVILLA main decision, the fact that the trial court thereafter found such
G.R. No. L-31869, August 8, 1973 argument unmeritorious or as inadequate to warrant
modification or reversal of the main decision, does not, of course,
Among the ends to which a motion for reconsideration is mean that the motion for reconsideration should have been
addressed, one is to convince the court that its ruling is regarded, or was properly regarded, as merely pro forma.
erroneous and improper, contrary to the law or the evidence,
and in so doing, the movant has to dwell of necessity upon issues It is important to note that the above case law rests upon the
passed upon by the court. The disallowance of pro forma principle that a motion for reconsideration which fails to comply
motions for reconsideration or new trial is mainly predicated with the requirements of Sections 1 (c) and 2 of Rule 37 of the
upon their being resorted to solely to gain time and delay the Rules of Court, and is therefore pro forma merely, has no other
proceedings. In this connection, We have already held that "it is purpose than to gain time. It is intended to delay or impede the
not enough that a motion should state what part of the decision progress of proceedings and the rule that such motion for
is contrary to law or the evidence; it should also point out why reconsideration does not stop the period of appeal from "slipping
they are so. away" reflects both poetic and substantial justice.

WHEN PRIOR ARGUMENTS ARE "REHASHED" OR "RECYCLED"
MARIKINA VALLEY DEVELOPMENT CORP. versus FLOJO
G.R. No. 110801 December 8, 1995
EN BANC
The question in every case is, therefore, whether a motion for
reconsideration is properly regarded as having satisfied the
requirements, noted above, of Rule 37 of the Rules of Court. As
already pointed out, the Court of Appeals took the position that
where a motion for reconsideration merely "reiterates" or
"repleads" the same arguments which had been previously
considered and resolved in the decision sought to be
reconsidered, the motion is a pro forma one.
It should, however, be noted that the circumstance that a motion
for reconsideration deals with the same issues and arguments
posed and resolved by the trial court in its decision does not
necessarily mean that the motion must be characterized as
merely pro forma. More than two (2) decades ago, Mr. Justice
J.B.L. Reyes had occasion, in Guerra Enterprises Company, Inc. v.
Where the circumstances of a case do not show an intent on the
part of the movant merely to delay the proceedings, our Court
has refused to characterize the motion as simply pro forma.
Thus, in the Guerra Enterprises case, the Court took note of the
fact that the motion for reconsideration had been filed within
barely twelve (12) days (the reglementary period was then thirty
(30) days) after receipt by the counsel for the movant party,
which fact negated the suggestion that the motion had been
used as "a mere delaying tactic." Dacanay v. Aluendia, on which
the Court of Appeals had relied, is not in fact in conflict with the
cases we have above referred to. In Dacanay, the motion for
reconsideration was in effect a fourth motion for
reconsideration: the "reasons and arguments" set out in the
motion for reconsideration had on three previous occasions been
presented to the trial court and each time considered and
rejected by the trial court. In Lonario v. De Guzman, the motion
for reconsideration which the Court characterized as pro forma
was in fact a second motion for reconsideration based on
grounds already existing at the time the first motion for

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
reconsideration was filed. Further, at the time of the filing of the
second motion, the period to appeal had already lapsed. This
Court dismissed the case for having been appealed beyond the
reglementary period. In Samudio v. Municipality of Gainza,
Camarines Sur, the Court had before it a "so-called motion for
new trial based exactly on the very ground alleged in
(defendant's) first motion for reconsideration dated October 17,
1952" and accordingly, held that the motion for new trial did not
suspend the period for perfecting an appeal "because it (was]
mere repetition of the (first] motion for reconsideration of
October 17, 1952.”
We are, therefore, unable to characterize the motion for
reconsideration filed by petitioners as simply pro forma. That
motion for reconsideration, it may be noted, had been filed no
more than ten (10) days after receipt of the trial court's decision
by petitioner Marikina Valley.
It is scarcely necessary to add that our conclusion that
petitioners' motion was not pro forma, should not be regarded
as implying however indirectly that that motion was meritorious.
We note finally that because the doctrine relating to pro forma
motions for reconsideration impacts upon the reality and
substance of the statutory right of appeal, that doctrine should
be applied reasonably, rather than literally. The right to appeal,
where it exists, is an important and valuable right. Public policy
would be better served by according the appellate court an
effective opportunity to review the decision of the trial court on
the merits, rather than by aborting the right to appeal by a literal
application of the procedural rule relating to pro forma motions
for reconsideration.
HYBRID MOTION FOR RECONSIDERATION AND MOTION FOR NEW
TRIAL
As implied in PCIB versus ORTIZ, G.R. No. L-49223, May 29, 1987,
there can be a hybrid motion for new trial and for reconsideration.
The Court ruled:
Where the motion for new trial is founded not only on fraud,
accident, mistake or excusable negligence, but also on the
ground of "award of excessive damages," as to which no
affidavit of fraud, etc., or of merits is required, what being
required of the movant being to "point out specifically the
findings or conclusions of the judgment" demonstrating the
invoked ground, the motion cannot be denied as pro forma
simply because no affidavit of merits is appended thereto,
provided there be a specification of the findings or conclusions
of the judgment alleged to be erroneous because awarding
excessive damages. The tenability of the grounds is dependent
upon different premises. The untenability of one does not of
itself, render the other unmeritorious.
Furthermore, take note that a motion for reconsideration is
equivalent to a motion for new trial if based on a ground for new
trial (REPUBLIC OF THE PHILIPPINES versus ASUNCION, ET AL., G.R.
No. 159695, September 15, 2006).
Note that, under the previous rules, all the grounds now appearing
under Section 1, including the ones for reconsideration, were all
grounds for a motion for new trial. However, the phraseology of the
law is defective because an aggrieved party does not seek a new
72
trial if the ground he relies upon is that excessive damages were
awarded or that the decision is contrary to law.
Thus, in one case, the Supreme Court noted that:
CITY OF CEBU versus MENDOZA
G.R. No. L-26321 February 25, 1975
A motion for new trial may be predicated on fraud, accident,
mistake, excusable negligence, newly discovered evidence,
award of excessive damages, and "insufficiency of the evidence
to justify the decision, or that the decision is against the law"
(Sec. 1, Rule 37, Rules of Court).
A motion for reconsideration is treated as a motion for new trial
"for it can have no basis other than the grounds for new trial" (2
Moran's Comments on the Rules of Court, 1970 edition, page
222). A motion for new trial based on the ground that excessive
damages were awarded or that the decision is contrary to law or
the evidence (Sec. 1[c], Rule 37) is not designated by pleaders as
a motion for new trial because, actually, no new trial is sought.
What is sought therein is the rendition of a new decision that,
from the movant's viewpoint, would be conformable to the law
or the evidence or that would not award excessive damages.
Hence, pleaders designate such motion for new trial as a motion
for reconsideration.
Section 4. Resolution of motion. A motion for new trial or
reconsideration shall be resolved within thirty (30) days from
the time it is submitted for resolution.
PERIOD TO RESOLVE RULE 37 MOTION
It bears repeating that, while Rule 15 provides that a litigious
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, Rule 37, Section 4 provides
that a motion for new trial or reconsideration shall be resolved
within thirty (30) days from the time it is submitted for resolution.
Take note that Rule 37 (and all succeeding rules up to Rule 56) were
unaffected by the amendments. Thus, the special provision on the
period to resolve motions for new trial or reconsideration (Rule 37,
Section 4) prevails over the counterpart provision governing
motions in general [Rule 15, Section 5(c)].
Section 3. Action upon motion for new trial or reconsideration.
The trial court may set aside the judgment or final order and grant
a new trial, upon such terms as may be just, or may deny the
motion. If the court finds that excessive damages have been
awarded or that the judgment or final order is contrary to the
evidence or law, it may amend such judgment or final order
accordingly.
Section 6. Effect of granting of motion for new trial. If a new trial
is granted in accordance with the provisions of this Rule, the
original judgment or final order shall be vacated, and the action
shall stand for trial de novo; but the recorded evidence taken
upon the former trial, in so far as the same is material and
competent to establish the issues, shall be used at the new trial
without retaking the same.
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SUMMARY: RESOLUTION OF MOTION 2. Affidavit of merits; and

3. Affidavit of the witnesses by whom such newly-
discovered evidence is expected to be given.
MOTION FOR MOTION FOR
NEW TRIAL RECONSIDERATION
Thus, if the NDE is already existing when the first motion was filed,
then the second motion for new trial will be denied because of
Resolved within thirty (30) days from the time
PERIOD failure to raise it earlier - the second ground is deemed waived for
it is submitted for resolution.
failure to raise the same.
An order denying a motion for new trial or
However, if the ground for the second motion for new trial is
reconsideration is not appealable, the
ACTION: DENY something not known or not existing or not available when the
remedy being an appeal from the judgment
party filed the first motion, then the second motion is allowed. The
or final order.
second motion is not a pro forma motion.
1. The court sets The court may amend
SECOND MOTION MEANS A MOTION FILED BY THE SAME PARTY
aside the judgment such judgment or final
and grant a new order accordingly. CRISTOBAL versus PHILIPPINE AIRLINES, INC.
trial; There is no trial de G.R. No. 201622, OCTOBER 4, 2017
novo as the court will
2. The original simply study or review Where a tribunal renders a decision substantially reversing itself
judgment or final its decision. There is no on a matter, a motion for reconsideration seeking reconsideration
order shall be need to introduce of this reversal, for the first time, is not a prohibited second motion
vacated; further evidence on for reconsideration.
factual issues.
3. There is trial de The National Labor Relations Commission Rules of Procedure
ACTION: GRANT novo; prohibits a party from questioning a decision, resolution, or order,
4. The recorded twice. In other words, this rule prohibits the same party from
evidence taken assailing the same judgment. However, a decision substantially
upon the former reversing a determination in a prior decision is a discrete decision
trial, insofar as the from the earlier one.
same is material
and competent to Thus, in Poliand Industrial Ltd. v. National Development Co., this
establish the Court held:
issues, shall be
used at the new Ordinarily, no second motion for reconsideration of a
trial without judgment or final resolution by the same party shall be
retaking the same. entertained. Essentially, however, the instant motion is not a
second motion for reconsideration since the viable relief it
seeks calls for the review, not of the Decision dated August
Section 5. Second motion for new trial. A motion for new trial 22, 2005, but the November 23, 2005 Resolution which
shall include all grounds then available and those not so included delved for the first time on the issue of the reckoning date of
shall be deemed waived. A second motion for new trial, based on the computation of interest ... (Citation omitted)
a ground not existing nor available when the first motion was
made, may be filed within the time herein provided excluding the This Court ruled similarly in Solidbank Corp.v. Court of Appeals,
time during which the first motion had been pending. where the Labor Arbiter dismissed a labor complaint but awarded
the employee separation pay, compensatory benefit, Christmas
No party shall be allowed a second motion for reconsideration of bonus, and moral and exemplary damages. This was appealed to
a judgment or final order. the National Labor Relations Commission by both parties. The
National Labor Relations Commission rendered a Decision
affirming the Labor Arbiter Decision but modifying it by deleting
OMNIBUS MOTION the award of moral and exemplary damages. On appeal, the Court
The first sentence implements the Omnibus Motion Rule under of Appeals ruled that the employee had been illegally dismissed
Section 9, Rule 15 of the Rules of Court (SPOUSES ZARATE versus and, considering the cessation of the employer's operations,
MAYBANK PHILIPPINES, INC. G.R. No. 160976, June 8, 2005) awarded the employee separation pay, backwages,
compensatory benefit, Christmas bonus, unpaid salary, moral and
SECOND MOTIONS exemplary damages, and attorney's fees. Then, the employer
The requirement that a motion for a new trial shall include all bank filed a Motion for Reconsideration and a Supplemental
grounds then available means that if both FAME and NDE are Motion for Reconsideration, while the employee filed a Motion
available, they must both be set up. Otherwise, the ground not so for Clarification and/or Partial Motion for Reconsideration. The
included shall be deemed waived. Where both FAME and NDE are Court of Appeals then issued an Amended Decision, modifying the
available as grounds, there would therefore be 3 classes of amount awarded as separation pay, backwages, and unpaid
affidavits, to wit: salary. Afterwards, the employee filed anotherMotion for
Reconsideration/Clarification, and the Court of Appeals again
1. Affidavit reciting the facts establishing the absolutory corrected the amounts awarded as separation pay, backwages,
cause;

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and unpaid salary. In its petition assailing the Court of Appeals
Resolution, the employer bank claimed that the Court of Appeals
erred in granting the employee's second motion for
reconsideration, a prohibited pleading. This Court held:
The Amended Decision is an entirely new decision which
supersedes the original decision, for which a new motion for
reconsideration may he filed again.
Anent the issue of Lazaro's "second" motion for
reconsideration, we disagree with the bank's contention that
it is disallowed by the Rules of Court. Upon thorough
examination of the procedural history of this case, the
"second" motion does not partake the nature of a prohibited
pleading because the Amended Decision is an entirely new
decision which supersedes the original, for which a new
motion for reconsideration may be filed again.
In Barba v. Licea De Cagayan University, where the Court of
Appeals denied a motion for reconsideration from an amended
decision on the ground that it was a prohibited second motion for
reconsideration, this Court held that the prohibition against a
second motion for reconsideration contemplates the same party
assailing the same judgment.
SECOND MOTION ALLOWED IN THE INTEREST OF JUSTICE
LAYA, JR. versus COURT OF APPEALS, ET.AL.
G.R. No. 205813 |January 10, 2018
FACTS:
From an adverse decision of the Court of Appeals (CA),
petitioner Alfredo F. Laya Jr. filed a motion for reconsideration
which was denied. Subsequently, he filed a petition for review
on certiorari with the First Division of the Supreme Court which
was also denied. He filed a motion for reconsideration and
sought the referral of his petition to the Court En Banc. The
Supreme Court (First Division) denied his motion for
reconsideration as well as his prayer to refer the case to the
Court En Banc. The entry of judgment was issued on Dec. 6,
2013. The petitioner filed a second motion for reconsideration
where he expounded on the issues he was raising in the first
motion for reconsideration.
ISSUE:
Can the second motion for reconsideration be still entertained?
RULING: YES. In light of pertinent laws and relevant
jurisprudence, the Court has ascertained, after going over the
parties' arguments and the records of the case, that the
reconsideration of the Court's resolutions promulgated on April
8, 2013 and Aug. 28, 2013, and the lifting of the entry of
judgment made herein are in order; and that the appeal by the
petitioner should be given due course.
In a line of cases, the Court has then entertained and granted
second motions for reconsideration "in the higher interest of
substantial justice," as allowed under the Internal Rules when
the assailed decision is "legally erroneous," "patently unjust"
and "potentially capable of causing unwarranted and
irremediable injury or damage to the parties."
In Tirazona v. Philippine EDS Techno-Service, Inc. (PET, Inc.), we
74
also explained that a second motion for reconsideration may be
allowed in instances of “extraordinarily persuasive reasons and
only after an express leave shall have been obtained."
In Apo Fruits Corp. v. Land Bank of the Philippines, we allowed a
second motion for reconsideration as the issue involved therein
was a matter of public interest, as it pertained to the proper
application of a basic constitutionally guaranteed right in the
government's implementation of its agrarian reform program.
In San Miguel Corp. v. NLRC, the Court set aside the decisions of
the LA and the NLRC that favored claimants-security guards
upon the Court's review of San Miguel Corp.'s second motion for
reconsideration. In Vir-Jen Shipping and Marine Services, Inc. v.
NLRC, et al., the Court en banc reversed on a third motion for
reconsideration the ruling of the Court's Division on therein
private respondents' claim for wages and monetary benefits.
It is also recognized that in some instances, the prudent action
towards a just resolution of a case is for the Court to suspend
rules of procedure, for "the power of this Court to suspend its
own rules or to except a particular case from its operations
whenever the purposes of justice require it, cannot be
questioned.”
In De Guzman v. Sandiganbayan, the Court, thus, explained: The
rules of procedure should be viewed as mere tools designed to
facilitate the attainment of justice. Their strict and rigid
application, which would result in technicalities that tend to
frustrate rather than promote substantial justice, must always
be avoided. Even the Rules of Court envision this liberality. This
power to suspend or even disregard the rules can be so pervasive
and encompassing so as to alter even that which this Court itself
has already declared to be final, as we are now compelled to do
in this case.
It is notable that the retirement program in question herein was
established solely by PVB as the employer. Although PVB could
validly impose a retirement age lower than 65 years for as long
as it did so with the employees' consent, the consent must be
explicit, voluntary, free, and uncompelled.51 In dismissing the
petition for review on certiorari, the Court's First Division
inadvertently overlooked that the law required the employees'
consent to be express and voluntary in order for them to be
bound by the retirement program providing for a retirement age
earlier than the age of 65 years. Hence, the Court deems it
proper to render a fair adjudication on the merits of the appeal
upon the petitioner's second motion for reconsideration.
Furthermore, allowing this case to be reviewed on its merits
furnishes the Court with the opportunity to re-examine the case
in order to ascertain whether or not the dismissal produced
results patently unjust to the petitioner. These reasons do justify
treating this case as an exception to the general rule on
immutability of judgments.
PARTIAL GRANTS OF MOTIONS UNDER RULE 37
Section 7. Partial new trial or reconsideration. If the grounds
for a motion under this Rule appear to the court to affect the
issues as to only a part, or less than all of the matter in
controversy, or only one, or less than all, of the parties to it, the
court may order a new trial or grant reconsideration as to such
issues if severable without interfering with the judgment or
 75
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

judgment is rendered.
final order upon the rest.

Section 8. Effect of order for partial new trial. When less than With respect to execution of a partial judgment:
all of the issues are ordered retried, the court may either enter Rule 39, Section 2. Discretionary execution. – XXX
a judgment or final order as to the rest, or stay the enforcement (6) Execution of several, separate or partial judgments. - A
of such judgment or final order until after the new trial. several, separate or partial judgment may be executed under
the same terms and conditions as execution of a judgment or
final order pending appeal.
PARTIAL If the grounds for a motion appear to the court to
GRANT OF affect the issues OF THE MOTION as to only a part, Section 9. Remedy against order denying a motion for new trial
THE or less than all of the matter in controversy, or or reconsideration. An order denying a motion for new trial or
MOTION only one, or less than all, of the parties to it, the reconsideration is not appealable, the remedy being an appeal
court may order a new trial or grant from the judgment or final order.
reconsideration as to such issues if severable
without interfering with the judgment or final REMEDY WHEN MOTION IS DENIED
order upon the rest. The remedy from an order denying a motion for reconsideration is
not to appeal from the order of denial. The order is not appealable.
When less than all of In effect, the motion for The remedy is to appeal from the judgment or final order itself.
the issues in effect, reconsideration is partly
the motion for are granted and partly May the order denying the motion for reconsideration be assailed
ordered retried, the denied. The movant may by a petition for certiorari under Rule 65? The answer used to be in
court reconsideration then apply Section 9 as the affirmative. Sec. 1 of Rule 41 clearly provided then for the
is partly may either: to what was not proper remedy against the order:
granted. However, he
1. Enter a judgment or may not file another "In all instances where the judgment or final order is not
final order as to the motion for appealable, the aggrieved party may file an appropriate special
rest; or reconsideration. The civil action under Rule 65."
adverse party may
2. Stay the however still file a However, effective December 27, 2007, it is submitted that an
enforcement of such motion for order denying a motion for reconsideration is no longer assailable
judgment or final reconsideration as to by certiorari because of the amendment to Rule 41 by A.M. No. 07-
order until after the the judgment as 7-12-SC. Deleted from those matters from which no appeal can be
new trial. amended. After that, he taken and from which order Rule 65 petition may be availed of, is
cannot file a second "an order denying a motion for new trial or a motion for
motion for reconsideration". The amendment obviously seeks to prevent the
reconsideration. filing of a petition for certiorari under Rule 65 based on an order
denying a motion for new trial or a motion for reconsideration. The
remedy available therefore, would be that prescribed under Sec. 9
RELATED PROVISIONS
of Rule 37, i.e., to appeal from the judgment or final order.
The court, in addition to Section 8, may also order separate trial of
DISTINCTIONS: RECAP
the issued ordered retried:
Rule 31, Section 2. Separate trials. — The court, in furtherance MOTION FOR NEW MOTION FOR
of convenience or to avoid prejudice, may order a separate trial TRIAL RECONSIDERATION
of any claim, cross claim, counterclaim, or third-party
complaint, or of any separate issue or of any number of claims, FAME and NDE Excessive damages,
cross-claims, counterclaims, third-party complaints or issues. AS TO decision is not supported
(2) GROUNDS by the evidence, or
decision is contrary to law.
In the matter of separate judgments:
Rule 36, Section 5. Separate judgments. — When more There could be a trial There is no trial de novo.
than one claim for relief is presented in an action, the court, EFFECT OF de novo. However, the judgment
at any stage, upon a determination of the issues material GRANT may be ordered amended
to a particular claim and all counterclaims arising out of the by the court.
transaction or occurrence which is the subject matter of the
claim, may render a separate judgment disposing of such A second motion for A second motion for new
claim. The judgment shall terminate the action with respect new trial, based on a trial is always prohibited.
to the claim so disposed of and the action shall proceed as ground not existing
to the remaining claims. In case a separate judgment is SECOND nor available when
rendered the court by order may stay its enforcement until MOTION the first motion was
the rendition of a subsequent judgment or judgments and made, may be filed
may prescribe such conditions as may be necessary to within the time
secure the benefit thereof to the party in whose favor the provided.
 76
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

POST-JUDGMENT REMEDIES If you lost, you appeal. Within that period to appeal, the judgment
*From the lectures of Atty. Jess Zachael Espejo is not yet final and that is why there are post-judgment remedies
that can be availed of before finality of judgment within the period
Take note that Rules 37 and 38 are unchanged. They were not to appeal. Of course, you can file Motion for new trial under Rule
covered by the amendments to the rules of the 2019 amendments. 37, Motion for reconsideration under Rule 37, Appeal under Rules
40, 41, 42, or 45, as the case may be. Because when you talk about
§ Post-judgment remedies are remedies that a defeated party 40 and 41, that is just appeal, 42 is a petition for review which is still
can avail of after the rendition of a judgment against him. an appeal or an appellate recourse, and 45 which can be taken from
If you are the prevailing party, you don’t need to avail of the pure questions of law before the Supreme Court within the period
post judgment remedies provided under the rules of court. of appeal.
It is for those who lost because he is the one who is
aggrieved by the judgment. These are the remedies you have if you are defeated in the court
below, AFTER JUDGMENT BUT BEFORE FINALITY.
§ For a party who lost in litigation before the trial court, post
judgment remedies afford him an additional round of remedies Take note as well that there are post-judgment remedies that you
to prove that he is entitled to prevail. This means that the can availed of even AFTER FINALITY OF JUDGMENT, meaning the
decision of the trial court is wrong. Verily, for an aggrieved period to appeal has already lapsed.
litigant it’s not the end of the world.
Q: Is there still anything to do?
POST-JUDGMENT REMEDIES CAN BE: A: YES. You can file a petition for relief under Rule 38, Annulment
of judgment under Rule 47 and finally those extraordinary remedies
Those which are available Those which are available under Rule 65 like certiorari or prohibition. Mandamus is rarely
after judgment but before after finality of judgment: used as a mode of review. It is usually undertaken if one files a
finality: petition for mandamus, he wants to compel a person to perform a
1. Motion for new trial 1.Petition for relief from ministerial duty (discussed under prov rem and special civil actions).
under Rule 37. judgment under Rule 38.
2. Motion for 2. Annulment of judgment Take note that these post-judgment remedies which are available
reconsideration under under Rule 47 after judgment but before finality, they are in a way successive.
Rule 37
3. Appeal under Rules 40, 3.The extraordinary remedies Q: Why do you need to remember that?
41, 42, or 45, as the case under Rule 65, if applicable. A: You filed a motion for new trial and it was denied. You filed a
may be motion for reconsideration, but still denied. You can actually go to
The above remedies are in a The above remedy are “last remedy no. 3 which is appeal because the motions under rule 37 is
way successive. If the motions ditch efforts” as there is denied by the court, the aggrieved party may still appeal.
under Rule 37 are denied, the already a final judgment that
aggrieved party may still will usually not be disturbed Take note also that the remedies which are available after finality
appeal. anymore. of judgment are “last ditch efforts” as there is already a final
judgment that will usually not be disturbed anymore. These are
DISCUSSION remedies of last resort as there is already a final judgment that as a
general rule, it would not be disturbed anymore.
Q: What do you usually do if you lost (ex.) in the RTC?
A: Usually, you will appeal. So there’s that period which is either 15
Q: When does a judgment become final and executory?
days or 30 days depending on the case you are appealing. There’s a
§ A final judgment or order, or one that disposes if the action
kind of appeal that you take by way of notice of appeal which is a
or proceeding, becomes final and executory upon the
1-paged document. You are simply telling the court that you are
expiration of the period to appeal therefrom if not appeal has
appealing the judgment and the second is, the record on appeal.
been duly perfected (Section 1, Rule 39).
This is more applicable in special proceedings, in cases of multiple
appeals are allowed like action for expropriation under Rule 67.
There are 2 stages in an expropriation case. The first is the
determination of whether or not the taking of the property was
proper which is separately appealable. The second stage for an
action for expropriation is the determination of just compensation.

Example: If XXX is the land owner and the defendant. XXX

does not agree with the action of the government in taking his
property. He is questioning the propriety of the taking. In that
situation, he can already appeal. However, because the case
will continue even when he’s appealing it, that is the time that
he will require a record on appeal which is actually a
duplication of the records of the case before the trial court so
that there will still be a record that remains with the trial court
and a record that will be sent to the CA. That is very time
consuming compared to a notice of appeal which is only 1
page. That is the reason why it needs 30 days.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 37
NEW TRIAL OR RECONSIDERATION
*From the lectures of Atty. Jess Zachael Espejo
BASICS:
§ While both new trial and reconsideration are lumped under one
rule, they are distinct remedies with distinct grounds for
availment. Ordinarily, you don’t file “new trial and
reconsideration” it is “new trial OR reconsideration.”
§ Both motions are filed within the period to appeal (i.e., 15 or 30
days from notice of judgment, depending on whether a record on
appeal is required). A party may still appeal even after availing of
the Rule 37 motions in an effort to amend or vacate the
judgment.
§ The principle here is the same as the filing of allowed motions
during the period to answer.
Example: If you’re the defendant and you receive summons,
remember that you have 4 options to choose from, you can
file a motion for bill of particulars, a motion for summary
judgment, or a motion to dismiss based on 5 grounds (lack of
jurisdiction over the Subject Matter; litis pendentia; res
judicata; prescription; and failure of the plaintiff to comply
with the requirement on certification against forum-
shopping) and these were later on denied. The rule to
remember is that on the remaining period, you can still file
for your answer.
This is the same as when you avail the motions under Section 37.
When your motion for new trial or your motion for reconsideration
is denied, you can still file for an appeal.
§ Thus, the party aggrieved by the judgment or final order of the
trial court may file a motion either for new trial or
reconsideration.
§ If the aggrieved party’s motion is denied, he may still have his
appeal from the original judgment.
Q: How much time does he have left?
A: He is entitled to a fresh period (15 or 30 days, as the case may
be) pursuant to the NEYPES DOCTRINE.
The rules of the period to file an answer as discussed in the previous
lessons provided that: You are entitled to the remainder of the
period to file an answer which shall not be less than 5 days in any
event. Example you have a period to appeal for 15 days, on the 8th
day, you filed a motion for new trial. For the mean time, it
interrupts everything. Mathematically speaking, right after the
motion is denied, you have 7 remaining days.
Q: Is this the same case?
A: NO. You are entitled to a fresh period either for 15 days or 30
days as the case may be.
NEYPES v CA
GR. No. 141524 | Sept. 14, 2005
To standardize the appeal periods provided in the Rules and to
afford litigants fair opportunity to appeal their cases, the Court
deems it practical to allow a fresh period of 15 days within which
to file the notice of appeal in the Regional Trial Court, counted
77
from receipt of the order dismissing a motion for a new trial or
motion for reconsideration.
Henceforth, this “fresh period rule” shall also apply to Rule 40
governing appeals from the Municipal Trial Courts to the
Regional Trial Courts; Rule 42 on petitions for review from the
Regional Trial Courts to the Court of Appeals; Rule 43 on appeals
from quasi-judicial agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme Court. The new
rule aims to regiment or make the appeal period uniform, to be
counted from receipt of the order denying the motion for new
trial, motion for reconsideration (whether full or partial) or any
final order or resolution.
DISCUSSION
You are entitled to a fresh period either 15 or 30 days depending if
there is a need for record on appeal or not. This is an an en banc
case. This is tantamount to amendment of the rules.
Q: Why did the Supreme Court applied the fresh period rule to Rule
40, Rule 42, Rule43 and Rule 45?
A: To regiment or make the appeal period uniform, to be counted
from receipt of the order denying the motion for new trial, motion
for reconsideration (whether full or partial) or any final order or
resolution.
The moment that your motion for reconsideration (or new trial) is
denied, your fresh period again starts to run within which you can
file an appeal. This is not applicable on Rule 64 (Review of
judgments of the COMELEC and COA). Because there is that
Constitutional proscription that the cases will be resolved
immediately and the fresh period does not apply. If motions for
new trial or reconsideration is allowed in COA and COMELEC, you
are only entitled to the reminder of the period. There is no fresh
period rule under Rule 64 (30 days).
Q: How about Rule 65 on certiorari and mandamus? What
happens? What will be the period within which to file a certiorari
and mandamus? (Shall we say Grave abuse of discretion
amounting to lack or excess of jurisdiction)
A: You have 60 days to file petition for certiorari. Let’s say you filed
a motion for reconsideration before the Court of Appeals. If the
motion is denied, you will file an appeal before the Supreme Court.
Q: How much time do you have left?
(Remember: It is not under Neypes)
A: You have a fresh period of 60 days (Special Civil Actions) not
because of the Neypes Doctrine but because of a specific provision
under Rule 65. Not because of the Neypes doctrine but because of
a specific provision under Rule 65, Section 4.
Section 1. Grounds of and period for filing motion for new trial
or reconsideration. — Within the period for taking an appeal,
the aggrieved party may move the trial court to set aside the
judgment or final order and grant a new trial for one or more of
the following causes materially affecting the substantial rights
of said party:
(a) Fraud, accident, mistake or excusable negligence which
ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been
impaired in his rights; or

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
(b) Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced at the trial,
and which if presented would probably alter the result.
Within the same period, the aggrieved party may also move for
reconsideration upon the grounds that the damages awarded
are excessive, that the evidence is insufficient to justify the
decision or final order, or that the decision or final order is
contrary to law. (1a)
GROUNDS
MOTION FOR NEW TRIAL MOTION FOR
RECONSIDERATION
Fraud, accident, mistake or The damages awarded are
excusable negligence (FAME) excessive.
Newly discovered evidence The evidence is insufficient to
(NDE). justify the decision or final
order.
The decision or final order is
contrary to law.
DISCUSSION
For motion for new trial, the grounds are fraud, accident, mistake
or excusable negligence (FAME).
Sounds familiar? Because these are the same grounds for a motion
to lift an order of default that we learned in Rule 9. Fraud, accident
mistake or excusable negligence and the additional ground would
be newly discovered evidence (NDE) - The evidence that was not
present during the time that there was trial, that you only
discovered after the rendition of judgement, that it could not have
been presented during trial, even with the exercise of due diligence
on the part of a party.
But, when you talk about a motion for reconsideration, we have
three:
1. The damages awarded are excessive.
2. The evidence is insufficient to justify the decision or final
order.
3. The decision or final order is contrary to law.
Either one of these grounds can be used for motions for
reconsideration. In practice, most of the time, it’s number 2 or
number 3 when you’re filing for a motion for reconsideration. And
most of the time, it’s number 3 - The decision or final order is
contrary to law. What you are actually telling the court is that the
decision that was rendered by the lower court is not supported by
the law. The law is like this, but you’re decision is different from
what the law says or the jurisprudence decided by the Supreme
Court.
FRAUD, ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE
(NOTE: For this ground - Read the separate hand-out provided,
specifically the doctrinal definitions and the examples of Dean Iñigo)
Take note of the requisites that:
1. The FAME was such that ordinary prudence could not
have guarded against it; and
2. By reason of such FAME, the aggrieved party has
probably been impaired in his rights.
78
NEWLY DISCOVERED EVIDENCE
REQUISITES:
1. The evidence was discovered after trial.
2. The evidence must be such that the party could not,
with reasonable diligence, have discovered and
produced it at the trial; AND
3. If presented, the evidence would probably alter the
result.
DISCUSSION
1. The evidence was discovered after trial. This means that
the evidence was not just negligently omitted or
forgotten during trial;
So for example, the evidence was already available but you did not
or you chose not to present it, that cannot be considered as newly
discovered evidence.
2. The evidence must be such that the party could not,
with reasonable diligence, have discovered and
produced it at the trial.
Meaning, there was already a subpoena, the modes of discovery
were already availed of, deposition or maybe interrogatories to
parties or what have you, but evidence really was not discovered
using the modes of discovery. But now, when there has already
been a judgement, it is only then that he knew that the evidence is
actual present and available. And such evidence is life-changing and
it will alter the result. Meaning, instead that the party will win, they
will lose instead because of the newly discovered evidence.
3. If presented, the evidence would probably alter the
result.
SECTION 2. CONTENTS OF THE MOTION FOR NEW TRIAL OR
RECONSIDERATION
The motion shall be made in writing stating the ground or
grounds therefor, a written notice of which shall be served by
the movant on the adverse party.
A motion for new trial shall be proved in the manner provided
for proof of motion. A motion for the cause mentioned in
paragraph (a) of the preceding section shall be supported by
affidavits of merits which may be rebutted by affidavits. A
motion for the cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by whom such evidence
is expected to be given, or by duly authenticated documents
which are proposed to be introduced in evidence.
A motion for reconsideration shall point out a specifically the
findings or conclusions of the judgment or final order which are
not supported by the evidence or which are contrary to law
making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to
such findings or conclusions.
A pro forma motion for new trial or reconsideration shall not toll
the reglementary period of appeal. (2a)
 79
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

DISCUSSION meritorious cause of action or a meritorious defense. Because the

• The motion shall be made in writing stating the ground or court has the right to know, if they will grant your motion, if you
grounds therefor, a written notice of which shall be have a meritorious defense or meritorious cause of action. Because
served by the movant on the adverse party. even if the Court will grant it, it will not alter the result if you do not
have a meritorious defense/cause of action. That’s what we call
So, there is that requirement of notice, unlike motions in general. “Affidavit of Merits.”
Take note that motions in general are no longer necessary now (the
notice of hearing). If you file a litigious motion, take note that the AS to NDE - What about newly discovered evidence? You will not
adverse party will have the opportunity to oppose. That’s it. There have an affidavit of resolutory cause. You are not a victim of FAME.
will be no hearing. If the court thinks that there is a need to have a What you are saying in having a newly discovered evidence is that
hearing, that’ the time that there will be a hearing. So, who will give you have a new evidence. If you were able to present it during trial,
a notice of hearing in ordinary motions? It will be the court. But there is a possibility that you could have won the case.
here, when you talk about a motion for new trial or a motion for
reconsideration, there has to be a written notice in the motion. Q: How do you now convince the court that you have a newly
Meaning, the adverse party is served of your motion. discovered evidence and the possible effect of that NDE?
A: Affidavits of your witnesses.
• A pro forma motion for new trial or reconsideration shall
not toll the reglementary period of appeal. (As to what REMEMBER: Every piece of evidence, whether it’s documentary,
motions are considered pro forma, read the hand-out object or testimony, it will undergo the testimony of a witness. They
provided). have to be sponsored by the testimony of the witness because
For example, your motion for new trial or reconsideration is documents and objects do not present themselves. The witness
declared to be pro forma, you may, in effect, lose your right to who will testify should be stated or if you have documents, they
appeal. You can be barred from taking an appeal because your new must also be attached, provided that they are duly authenticated.
trial or reconsideration is pro forma.
And if that NDE is sufficient for the court to declare that you could
SUPPORT/ AFFIDAVITS have won, should you have presented the same, that would now
lead to the court granting your MNT, based on your NDE.
MOTION FOR NEW TRIAL MOTION FOR
RECONSIDERATION As to MR - What about motion for reconsideration? Is there a need
A motion for new trial shall be A motion for reconsideration for an affidavit? NO. Your MR is actually a pure pleading or
proved in the manner shall point out specifically the argumentation. No need for presentation of evidence because you
provided for proof of motions. findings or conclusions of the are not actually saying that you are a victim of FAME. You are not
A motion based on: judgement or final order saying that you have NDE. When you file for reconsideration, you
which are not supported by are giving the court that rendered the judgement, an opportunity
FAME, shall be supported by the evidence or which are to correct itself if for example, it committed a mistake. That’s the
affidavits of merits which may contrary to law, making purpose of a motion for reconsideration.
be rebutted by affidavits. express reference to the
testimonial or documentary Q: How do you convince the court that the court is wrong?
NDE, shall be supported by evidence or to the provisions A: You point out the court findings and resolutions that seem to be
affidavits of the witnessed by of law alleged to be contrary wrong and you have to state your legal basis there.
whom such evidence is to such findings or
expected to be given, or by conclusions. Take note that both motions (MNT and MR) are litigious motion,
duly authenticated which means that rules on litigious motions apply.
documents which are
proposed to be introduced in (NOTE: Read the separate handout as to what these rules are)
evidence.
The opposing party shall file his or her
Take note that both motions are litigious motion, which means
that rules on litigious motions apply. opposition to either a motion for new trial or
a motion for reconsideration within 5
OPPOSITION
calendar days from receipt thereof. No other
DISCUSSION
submissions shall be considered by the court
As to FAME - In effect, there are two affidavits that are required if in the resolution of the motion.
you are filing a motion for new trial. You need to remember that.
While Rule 15 provides that a litigious motion
shall be resolved by the court within 15
The first would be the affidavit stating circumstances that calendar days from its receipt of the
constituted the fraud, accident, mistake, excusable negligence. And opposition, Rule 37 Section 4 provides that
second is what we call affidavit of merits.
the motion shall be resolved within 30 days
RESOLUTION from the time it is submitted for resolution.
Q: Why do we need such affidavit of merits?
The special provision on the period to resolve
A: Because you need to convince the court that because you are a motions for new trial or reconsideration (Rule
victim of FAME, you were prevented from fully presenting your 37, section 4) prevails over the counterpart
case.
provision governing motions in general [Rule
15, Section 5c]
“If I were allowed to present my case in the beginning, I could
possibly win.” You have to convince the court that you have a

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Under Rule 15, Section 6, the court may, in
the exercise of its discretion, and if deemed
necessary for its resolution, call a hearing on
HEARING
the motion. The notice of hearing shall be
addressed to all parties concerned, and shall
specify the time and date of the hearing.
Because both motions are intended to cause
a judgement to be set aside, they are motions
“attacking a pleading, order, judgement, or
OMNIBUS proceeding.” As such, they are subject to the
MOTION Omnibus Motion Rule. Thus, a motion filed
under Rule 37 should include all objections
then available and all objections not so
included shall be deemed waived.
For example, there is FAME, and you also have NDE, are you
required to file them together when you file your motion for new
trial? YES. Why? Because of the Omnibus Motion Rule.
Let’s go to affidavit of merits.
AFFIDAVIT OF MERITS
An affidavit of merits is one setting forth that the defendant has a
meritorious defense (substantial and not technical) and stating the
facts constituting the same (Black’s Law Dictionary, 4th ed, p.80).
Q: Is this the only affidavit referred to under Rule 37?
A: NO. There are 2 affidavits. First (Affidavit of Absolutory Causes)
is an affidavit reciting the nature and character of the absolutory
cause (FAME) on which the motion is based. Second is the affidavit
of merits which sets forth the movant’s good or substantial cause
of action or defense where he must also describe the evidence
which he intends to present should the motion be granted. The
evidence should be such as would warrant a reasonable belief that
the result of the case would probably be otherwise.
As a general rule, you must have 2 affidavits, but in practice, it is
not 2 affidavits, just one affidavit that is lumped together. But if you
base it on jurisprudence, according to the SC, there should be 2
affidavits. But we will modify that when we go to rule 38 later.
Just take note of the distinctions between the affidavit of
absolutory causes and affidavit of merits. Take note that they are
distinct from one another. (see handout for distinction)
Section 3. Action upon motion for new trial or reconsideration-
The trial court may set aside the judgement or final order and grant
a new trial, upon such terms as may be just, or may deny the
motion. If the court finds that excessive damages have been
awarded or that the judgement or final order is contrary to the
evidence or law, it may amend such judgement or final order
accordingly.
Section 4. Resolution of motion – A motion for new trial or
reconsideration shall be resolved within thirty (30) days from the
time it is submitted for resolution.
Relate Section 3 with Section 6. There are two things that a court
can do to a motion for new trial or a motion for reconsideration: It
can grant the motion (Section 6) or deny.
If the motion is denied, the party is left with nothing but to appeal.
He cannot certiorari that, as a general rule
80
Q: What happens if it is granted?
Section 6. Effect of granting of motion for new trial – If a new trial
is granted in accordance with the provisions of this Rule, the
original judgment or final order shall be vacated, and the action
shall stand for trial de novo; but the recorded evidence taken upon
the former trial, in so far as the same is material and competent to
establish the issues, shall be used at the new trial without retaking
the same.
DISCUSSION
What is this trial de novo? – NEW TRIAL; meaning if the action shall
stand for trial de novo, it has been granted.
Just to summarize, if the motion for new trial was GRANTED:
• The court sets aside the judgment and grants a new trial. The
original judgment or final order shall be vacated, and there is
a trial de novo.
• So, there is again a reception of evidence. If the evidence in
the formal trial is material and competent to establish the
issues, it shall be used at the new trial without retaking the
same.
• Recall that when your ground is either of the FAME or NDE,
you are actually telling the court that “you (the court) did not
let me (you) present my evidence”. With that, in the trial de
novo, you will be allowed to present evidence or the new
evidence.
TAKE NOTE: PRINCIPLE OF AUTOMATIC DUPLICATION
If there is already evidence which was received already during the
initial trial, prior to the judgment; that will not be retaken anymore.
We don’t have to receive that evidence as the same is already in
the record of the courts. So, there is that automatic duplication.
Q: WHAT ABOUT A MOTION FOR RECONSIDERATION?
A: The court may amend such judgment or final order accordingly.
There is no trial de novo, because here we are not talking about an
evidence that is omitted.
You are simply contending that the court was wrong in its decision.
So, the court will simply study or review its own decision. No need
to present evidence as to the factual issue; everything is already on
the record. It is just that the court has a different interpretation.
Q: WHAT HAPPENS IF EITHER MOTION FOR NEW TRIAL OR
MOTION FOR RECONSIDERATION HAS BEEN DENIED?
A: An order denying the motion (MNT or MR) is not appealable, the
remedy being appeal from the judgment or final order. (Section 9)
Section 5. Second motion for new trial. – A motion for new trial
shall include all grounds then available and those not so included
shall be deemed waived. A second motion for new trial, based on a
ground not existing nor available when the first motion was made,
may be filed within the time herein provided excluding the time
during which the first motion had been pending.
No party shall be allowed a second motion for reconsideration of a
judgment or final order.
DISCUSSION
As a general rule, second motion for new trial is prohibited. Second
motion for reconsideration is also prohibited.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
However, there is an exception as to the second motion for new
trial, which you filed based on a ground not existing nor available
when the first motion was made.
SECOND MOTIONS
A second motion for new trial, if based on a ground not existing or
available when the first motion was made, may be filed. No party
shall be allowed a second motion for reconsideration of a judgment
or final order.
TAKE NOTE AGAIN WHAT ARE THE GROUNDS: “FAME” OR “NDE”.
In all probability that is already available at the time you filed your
first motion for new trial. An accident per se, cannot be said to have
happened after judgment. Same thing with fraud, you will know it
during trial. That is why it is subject to the OMNIBUS MOTION RULE.
Example: You knew about the fraud, hence you filed a
motion for new trial. It is not probable that later on, after
filing a motion for new trial, you will discover that you are
a victim of an accident.
Q: ISN’T IT ABSURD?
A: DEAN INIGO’S SUBMISSION: No. Let’s say you filed a motion for
new trial because of fraud, you were not able to present, it was
denied. Now, later on you were able to discover a new evidence
that would probably alter the result, you can now file a SECOND
MOTION FOR NEW TRIAL. That is what it is. But again, if you file a
(second) motion for reconsideration, that’s not allowed. You are
only allowed to file a MR once.
PROHIBITION AGAINST A SECOND MR; ONLY BY SAME PARTY
The prohibition against a second motion for reconsideration
contemplates the same party assailing the same judgment
(CRISTOBAL VS. PHILIPPINE AIRLINES INC., G.R. NO. 201622,
OCTOBER 4, 2017).
First, the one who filed a MR is the defendant that lost. Strangely,
the court believed the defendant, the MR was granted. Who is now
the aggrieved party? The one who won, the plaintiff. So, he can file
a motion for reconsideration.
So, it does not mean that if there is a judgment, then a MR was filed
by one party and was granted, the other (now aggrieved) party can
no longer file an MR. – No! It does not bar the other party from
filing his own motion for reconsideration.
Section 7. Partial new trial or reconsideration. – If the grounds for
a motion under this Rule appear to the court to affect the issues as
to only a part, or less than all of the matter in controversy, or only
one, or less than all, of the parties to it, the court may order a new
trial or grant reconsideration as to such issues if severable without
interfering with the judgment or final order upon the rest.
Section 8. Effect of order for partial new trial. – When less than all
of the issues are ordered retried, the court may either enter a
judgment or final order as to the rest, or stay the enforcement of
such judgment or final order until after the new trial.
Section 9. Remedy against order denying a motion for new trial or
reconsideration. – An order denying a motion for new trial or
reconsideration is not appealable, the remedy being an appeal
from the judgment or final order.
81
RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS
*From the lectures of Atty. Jess Zachael Espejo
Section 1. Petition for relief from judgment, order or other
proceedings. – When a judgment or final order is entered, or any
other proceeding is thereafter taken against a party in any court
through fraud, accident, mistake, or excusable negligence, he may
file a petition in such court and in the same case praying that the
judgment, order or proceeding be set aside.
Section 2. Petition for relief from denial of appeal. – When a
judgment or final order is rendered by any court in a case, and a
party thereto, by fraud, accident, mistake, or excusable negligence,
has been prevented from taking an appeal, he may file a petition in
such court and in the same case praying that the appeal be given
due course.
PETITION FOR RELIEF
It is a legal remedy whereby a party seeks to set aside a judgment
rendered against him by a court whenever he was unjustly deprived
of a hearing or was prevented from taking an appeal because of
fraud, accident, mistake or excusable neglect.
• So again, there is this FAME remedy. This already the third
time, we have:
o Motion to lift order of default
§ If you got default, meaning, you were not
able to present your evidence. You can file
that.
o Later on, if judgment by default is rendered against
you, but the reason why was FAME = you can file a
Motion for New Trial (within the period to appeal);
and
o Let’s say you were not able to take an appeal as well.
Now it was after the period to appeal, the judgment
was deemed final, you can still file a Petition for
Relief.
TWO KINDS OF PETITION FOR RELIEF
Section 1 deals with a petition for relief where a party was unjustly
deprived of a hearing because of FAME.
Section 2, on the other hand, deals with petition for relief where a
party was prevented from taking an appeal because of FAME.
EFFECT: If granted, it’s like a motion for new trial since you will be
allowed to present your evidence so the judgment will be in effect
be vacated as well.
PETITION FOR RELIEF; AN EQUITABLE REMEDY
It is an equitable remedy that is allowed only in exceptional cases
when there is no other available or adequate remedy. Thus, when
a party has another remedy available to him (i.e. new trial or appeal
from an adverse decision) and he was not prevented by FAME from
filing such motion or taking such appeal, he cannot avail himself of
this petition.
A petition for relief is not a remedy to revive a lost appeal
(THOMASITES CENTER VS. RODRIGUEZ, G.R. NO. 203642,
JANUARY 27, 2016).

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Relief is allowed only in exceptional cases as when there is no other
available or adequate remedy. A petition for relief is actually the
“last chance” given by law to litigants to question a final judgment
or order. Failure to avail of such “last chance” within the grace
period fixed by the Rules (Section 3) is fatal.
Thus, as a general rule, the rules on petition for relief are strictly
construed against the petitioner.
Q: WHO MAY FILE THE PETITION?
A: A petition for relief from judgment together with a motion for
new trial and a motion for reconsideration are remedies available
only to parties in the proceedings where the assailed judgment is
rendered. In fact, it has been held that a person who was never a
party to the case, or even summoned to appear therein, cannot
avail of a petition for relief from judgment (ALABAN VS. CA, G.R.
NO. 156021, SEPTEMBER 23, 2005).
• In other words, you have to be a party of the original case
where the judgment was rendered.
Q: WHERE DO YOU FILE IT?
A: GR: Petitions for relief should be filed in and resolved by the
court in the same case from which the petition arose. Thus, petition
for relief in a case tried by the MTC shall be filed in and decided by
it in the same case, or in the Regional Trial Court if the case was
decided by it.
• Why? Take note of the effect if your petition for relief will be
granted – it is as if there is no judgment was rendered. In
effect, it is as if there was a timely motion for new trial that
was granted in the same court that rendered the judgment
and the very same court that allowed you to file your petition
for relief from judgment. There will be a trial de novo in the
same court.
EXCEPTIONS: COURT OF APPEALS AND SUPREME COURT
AS TO THE COURT OF APPEALS:
In (BAGAPORO VS. PEOPLE, G.R. NO. 211829, JANUARY 30, 2019),
the Supreme Court said that neither the Rules of Court nor the
Revised Internal Rules of the Court of Appeals allow the remedy of
petition for relief in the Court of Appeals.
• So, it is not applicable in the Court of Appeals.
• What’s your remedy then? Provided that it is still within the
period, you can of course file:
o The necessary review proceeding before the SC. You
can file an appeal there; or
o Certiorari, under Rule 45 on pure questions of law
(this is improbable)
o Or that under Rule 65 on grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of the CA.
AS TO THE SUPREME COURT:
Remember that the Supreme Court has original jurisdiction over
certain cases. Let’s say you lost there, can you allege that you are a
victim of FAME and seek recourse through a petition for relief from
judgment? – NO!
There is also no provision in the Rules of Court making the petition
for relief applicable in the Supreme Court (PURCON VS. MRM
PHILS. INC., G.R. NO. 182718, SEPTEMBER 26, 2008).
• So, it is also not applicable in the Supreme Court.
82
• So, it seems that when you reach the Supreme Court and lost,
you no longer have a remedy. It is because in the SC, it is
already final, it is the court of last resort.
DUREMDES VS. JORILLA
G.R 234491 | February 26 2020
(REQUISITES FOR FILING PETITION FOR RELIEF)
For the filing of a petition for relief to be proper, petitioner must
satisfy the following requirements:
1. He or she has no adequate remedy available to him,
which is either a motion for new trial or appeal from
adverse decisions of the lower court, and he was
prevented by fraud, accident, mistake or excusable
negligence from filing such motion or taking the
appeal; and
2. He or she must comply with the double period set
forth under section 3, Rule 38 of the Rules of Court.
Section 3. Time for filing petition; contents and verification.
A period provided for in either of the preceding sections of this
Rule must be verified, filed within sixty (60) days after the
petitioner learns of the judgment, final order, or other
proceeding to be set aside, and not more than six (6) months
after such judgment or final order was entered, or such
proceeding was taken; and must be accompanied with affidavits
showing the fraud, accident, mistake, or excusable negligence
relied upon, and the facts constituting the petitioner's good and
substantial cause of action or defense as the case may be.
DISCUSSION:
Let’s look at the later part of the provision first, how many affidavits
is required? (1) there is an affidavit showing the fraud, mistake,
excusable negligence, that is the affidavit showing absolutory
cause and (2) the facts constituting the petitioner's good and
substantial cause of action or defense which is your affidavit of
merits. So similar to motion for new trial in rule 37, here you have
2 affidavits.
DOUBLE PERIOD
A party filing a petition for relief from judgment must strictly
comply with two (2) reglementary periods:
1. The petition must be filed within 60 days from the
knowledge of the judgment, order or other proceeding to
be set aside; and
2. Within a period of 6 months from entry of such judgment,
order or other proceeding.
These two periods must concur, both periods are NOT EXTENDIBLE
AND NEVER INTERRUPTED.
DISCUSSION:
Take note of the double period, 60 days after the petitioner learns
of the judgment, this refers to the judgment itself and not its
finality, there is a big difference. So, when did you learn about the
judgment? It should be within 60 days, you already filed and
provided that all of that happened not more than 6 months after
such judgment or final order was entered. So, that is the time when
the judgment became final and executory.
Let's say for example, you lost the case on January 1, 2020, when
would be your 60 days be counted? on the day the you lost? NO, it
is the date that you learned that you lost. Take note also that you

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
have to concur with the other period, 6 months after the judgment
has entered, meaning when did that judgment attained finality. So,
it is possible that you learned about the judgment very much later,
let's say on the 5th month, that is allowed because it is still within
the 6 months period.
Q: Why can't this be extended or interrupted?
A: Because again this is an extraordinary remedy, equitable
remedy, meaning it is out of the ordinary because the ordinary is
appeal but you cannot appeal anymore that's the reason why you
are filing, so you should follow the double period.
THOMASITES CENTER FOR INTERNATIONAL STUDIES VS.
RODRIGUEZ
G.R 203642 January 27, 2016
Strict compliance with these periods is required because a
petition for relief from judgment is a final act of liberality on the
part of the state, which remedy cannot be allowed to erode any
further the fundamental principle that a judgment, order or
proceeding must, at some definite time, attain finality in order
to put an end to litigation.
DUREMDES VS. JORILLA
The double period does not apply where extrinsic fraud
ultimately results in the court's lack of jurisdiction over the
defendant.
DISCUSSION:
This is the principle ultimately laid down in the case of Duremdes
that even if you exceed the 60 days or 6 months, if it can be shown
that your deprivation of a hearing or a chance to present your
evidence was due to extrinsic fraud, the double period is not
applicable.
Q: Why?
A: (Short background as to Duremdes case): Take note that the
plaintiff in this case deliberately supplied the wrong address of the
defendant. So, what is the meaning of that? the summons is
defective, he was not properly summoned, the court never
obtained jurisdiction over the person of the defendant.
Q: Now, what will happen to the proceedings where the
defendant was never summoned or the court never obtained
jurisdiction over his person?
A: All of the proceedings in so far as the defendant is concerned is
an absolute nullity, it does not bind him and it can never attain
finality.
The extrinsic fraud resulted in the court's lack of jurisdiction over
the defendant and because the proceedings there was a nullity, you
are not covered by the 60 days and 6 months double period under
section 3.
AFFIDIAVITS REQUIRED
The petition must be verified and must be accompanied with
affidavits showing fraud, accident, mistake or excusable negligence
relied upon (affidavit of absolutory causes), and the facts
constituting the petitioner's good and substantial cause of action or
defense, as the case may be (affidavit of merits).
As worded, Section 3 seems to follow the rule in Rule 37, as
interpreted in Philippine Commercial and Industrial bank vs. Ortiz
[G.R L-49223, May 29, 1987], stating that there are two affidavits
83
required - one for the absolutory cause and one for the good and
substantial cause of action or defense.
However, in Consul vs. Consul it was held that:
CONSUL VS. CONSUL
L-22713, July 1966
Held: Affidavit of merits has a known purpose: Courts and
parties should not require the machinery of justice to grind
anew, if the prospects of a different conclusion cannot be
reasonably reached should relief from judgment be granted. The
petition for relief is verified by the petitioner himself. The merits
of petitioner's case are apparent in the recitals of the petition,
said petition is under oath. That oath, we believe. Elevates the
petition to the same category as a separate affidavit.
Why do we need to require that a separate affidavit of merits should
be executed by the petitioner when in fact the petition is already
under oath? and the petitioner itself recites the meritorious cause
of action or defense? - So, that would be a surplusage.
Held: To require the defendant to append an affidavit of merits
to his verified petition, in the circumstances, is to compel him to
do the unnecessary. Therefore, the defect pointed by the court
below is one of form, not of substance.
Result: Absence of a separate affidavit is of de minimis
importance.
Section 4. Order to file an answer. If the petition is sufficient in
form and substance to justify relief, the court in which it is filed,
shall issue an order requiring the adverse parties to answer the
same within fifteen (15) days from the receipt thereof. The
order shall be served in such manner as the court may direct,
together with copies of the petition and the accompanying
affidavits.
Section 5. Preliminary injunction pending proceedings. — The
court in which the petition is filed may grant such preliminary
injunction as may be necessary for the preservation of the rights
of the parties, upon the filing by the petitioner of a bond in favor
of the adverse party, conditioned that if the petition is dismissed
or the petitioner fails on the trial of the case upon its merits, he
will pay the adverse party all damages and costs that may be
awarded to him by reason of the issuance of such injunction or
the other proceedings following the petition, but such
injunction shall not operate to discharge or extinguish any lien
which the adverse party may have acquired upon the property
of the petitioner.
DISCUSSION:
What is this preliminary injunction? You can find that in Rule 58.
In the meantime, what will happen? Even if you file a petition for
relief from judgment, because the judgment is already final and
executory, there could already be execution of the judgment. - that
is the purpose of Rule 39 (Execution).
In order for the petitioner to stop the execution in the meantime,
the petitioner must ask the court for writ of preliminary injunction.
Otherwise, execution will proceed.
Take note that the principle here in preliminary injunction pending
proceedings is similar when you file for Petition for Certiorari under
Rule 65. Let's say the regional trial court issued a judgment with

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
grave abuse of discretion amounting to lack or excess of
jurisdiction, you appeal before the court of appeals for certiorari.
You want the judgment to be reversed. Take note that the
execution will continue if without restraining order that is issued by
the court or if there is no writ of preliminary injunction.
Another example: You file a petition for certiorari against an
interlocutory order. In other words, the case will supposedly
continue even if there is already an order. However, you filed a
certiorari, do you have the right to expect that the proceedings
below will not continue? NO. You have no right to expect that, If
you want to stop it, you have to ask for a writ of preliminary
injunction. That is also similar here in Section 5.
Section 6. Proceedings after answer is filed. — After the filing
of the answer or the expiration of the period therefor, the court
shall hear the petition and if after such hearing, it finds that the
allegations thereof are not true, the petition shall be dismissed;
but if it finds said allegations to be true, it shall set aside the
judgment or final order or other proceeding complained of upon
such terms as may be just. Thereafter the case shall stand as if
such judgment, final order or other proceeding had never been
rendered, issued or taken. The court shall then proceed to hear
and determine the case as if a timely motion for a new trial or
reconsideration had been granted by it.
DISCUSSION:
What is the destiny of a petition for relief from judgment? It can
either be granted or denied. If denied, the petition shall be
dismissed. However, if the court finds that the allegations in the
petition are true, (1) it will set aside the judgment or final order
(similar to MNT) and (2) thereafter the case shall stand as if such
judgment has never been rendered. Meaning, the judgment is
vacated, similar to Rule 37, the court shall then proceed to hear and
determine the case as if a timely motion for new trial or
reconsideration has been granted. This means that there will be a
trial de novo again because the effect is similar to rule 37.
Section 7. Procedure where the denial of an appeal is set aside.
— Where the denial of an appeal is set aside, the lower court
shall be required to give due course to the appeal and to elevate
the record of the appealed case as if a timely and proper appeal
had been made.
DISCUSSION:
This talks about petition for relief under Section 2. In short, if you
are deprived of the right to appeal because of fraud, accident,
mistake or excusable negligence and the court where you filed your
petition for relief of judgment agrees with you that you are really a
victim of fraud or excusable negligence, the effect is you will be
allowed to appeal.
84
RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS
*Compiled and Updated by: JZE and LCYE
Section 1. Petition for relief from judgment, order, or other
proceedings. When a judgment or final order is entered, or any
other proceeding is thereafter taken against a party in any court
through fraud, accident, mistake, or excusable negligence, he
may file a petition in such court and in the same case praying
that the judgment, order or proceeding be set aside.
Section 2. Petition for relief from denial of appeal. When a
judgment or final order is rendered by any court in a case, and
a party thereto, by fraud, accident, mistake, or excusable
negligence, has been prevented from taking an appeal, he may
file a petition in such court and in the same case praying that
the appeal be given due course.
NATURE OF THE PETITION
It is a legal remedy whereby a party seeks to set aside a judgment
rendered against him by a court whenever he was unjustly deprived
of a hearing or was prevented from taking an appeal because of
fraud, accident, mistake or excusable neglect (Quelnan versus VHF
Philippines, G.R. No. 138500, September 16, 2005).
A petition for relief from judgment is an equitable remedy that is
allowed only in exceptional cases when there is no other available
or adequate remedy. When a party has another remedy available
to him, which may be either a motion for new trial or appeal from
an adverse decision of the trial court, and he was not prevented by
fraud, accident, mistake or excusable negligence from filing such
motion or taking such appeal, he cannot avail himself of this
petition (TRUST INTERNATIONAL PAPER CORPORATION versus
PELAEZ, G.R. No. 164871, August 22, 2006). Also, a party who has
filed a motion for new trial, but which was denied, cannot file a
petition for relief. These two remedies are said to be exclusive of
each other. The remedy is to appeal from the judgment (Sec. 9, Rule
38, Rules of Court; Francisco versus Puno, 108 SCRA 427).
NOT A REMEDY TO REVIVE LOST APPEAL
THOMASITES CENTER FOR INTERNATIONAL STUDIES versus
RODRIGUEZ
G.R. No. 20364 | January 27, 2016
Relief from judgment is a remedy provided by law to any person
against whom a decision or order is entered through fraud,
accident, mistake, or excusable negligence. It is a remedy,
equitable in character, that is allowed only in exceptional cases
when there is no other available or adequate remedy. When a
party has another remedy available to him, which may either be
a motion for new trial or appeal from an adverse decision of the
trial court, and he was not prevented by fraud, accident,
mistake, or excusable negligence from filing such motion or
taking such appeal, he cannot avail of the remedy of petition for
relief.
Otherwise, the petition for relief will be tantamount to reviving
the right of appeal which has already been lost either because
of inexcusable negligence or due to the mistake
in the mode of procedure by counsel.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
GROUNDS FOR A PETITION FOR RELIEF
A petition for relief may be filed on the following grounds:
a) When a judgment or final order is entered into, or any
other proceeding is thereafter taken against the
petitioner in any court through fraud, accident, mistake,
or excusable negligence (Sec. 1, Sec. 38, Rules of Court).
The petition shall be filed in such court and in the same
case (not in another or higher court). The petition shall
pray that the judgment, order or proceeding be set aside
(Sec. 1, Rule 38, Rules of Court); or
b) When the petitioner has been prevented from taking an
appeal by fraud, accident, mistake, or excusable
negligence (Sec. 2, Rule 38, Rules of Court). The petition
shall likewise be filed in such court and in the same case
(not in another or higher court) but the prayer this time
is that the appeal be given due course (Sec. 2, Rule 38,
Rules of Court).
RULE 38 PROVIDES FOR ANOTHER “FAME” REMEDY
A petition for relief from judgment is another legal remedy
whereby a party seeks to set aside a judgment whenever he was
unjustly deprived of a hearing or was prevented from taking an
appeal because of fraud, accident, mistake or excusable neglect.
CITY OF DAGUPAN versus MARAMBA
G.R. No. 174411, July 02, 2014
The Supreme Court, through the ponencia of Justice Leonen,
had the occasion to discuss these grounds, except accident, as
follows:
Excusable negligence as a ground for a petition for relief requires
that the negligence be so gross "that ordinary diligence and
prudence could not have guarded against it." This excusable
negligence must also be imputable to the party-litigant and not
to his or her counsel whose negligence binds his or her client. The
binding effect of counsel's negligence ensures against the
resulting uncertainty and tentativeness of proceedings if clients
were allowed to merely disown their counsels' conduct.
Nevertheless, this court has relaxed this rule on several occasions
such as: (1) where the reckless or gross negligence of counsel
deprives the client of due process of law; (2) when the rule's
application will result in outright deprivation of the client's
liberty or property; or (3) where the interests of justice so
require." Certainly, excusable negligence must be proven.
Fraud as a ground for a petition for relief from judgment pertains
to extrinsic or collateral fraud. The extrinsic or collateral fraud
that invalidates a final judgment must be such that it prevented
the unsuccessful party from fully and fairly presenting his case or
defense and the losing party from having an adversarial trial of
the issue. There is extrinsic fraud when a party is prevented from
fully presenting his case to the court as when the lawyer connives
to defeat or corruptly sells out his client's interest. Extrinsic fraud
can be committed by a counsel against his client when the latter
is prevented from presenting his case to the court.
On the other hand, mistake as used in Rule 38 means mistake of
fact and not mistake of law. A wrong choice in legal strategy or
mode of procedure will not be considered a mistake for purposes
of granting a petition for relief from judgment. Mistake as a
ground also "does not apply and was never intended to apply to
a judicial error which the court might have committed in the trial
85
since such error may be corrected by means of an appeal.”
Mistake can be of such nature as to cause substantial injustice
to one of the parties. It may be so palpable that it borders on
extrinsic fraud.
PETITION IS AVAILABLE AGAINST PROCEEDINGS AFTER
JUDGMENT
A petition for relief is available not only against a judgment or final
order. Under Sec. 1 of Rule 38, it is also available when "ANY OTHER
PROCEEDING is thereafter taken against the petitioner in any court
through fraud, accident, mistake, or excusable negligence". Thus, it
was held that a petition for relief is also applicable to a proceeding
taken after the entry of judgment or final order such as an order of
execution (CAYETANO versus CEGUERRA, 13 SCRA 73). That a
petition for relief may include relief from an order of execution is
supported by the fact that Rule 38 does not only refer to
judgments, but also to orders, or any other proceedings (BAYOG
versus NATINO, G.R. No. 118691, July 5, 1996).
NEGLECT OR MISTAKE BORDERING ON EXTRINSIC FRAUD
CITY OF DAGUPAN versus MARAMBA
G.R. No. 174411 | July 02, 2014
FACTS: On December 20, 2003, petitioner city caused the
demolition of the commercial fish center owned by Respondent
Maramba, allegedly without giving direct notice to Maramba
and with threat of taking over the property. This prompted
Maramba, through her attorney-in-fact, Johnny Ferrer, to file a
complaint for injunction and damages with prayer for a writ of
preliminary injunction and/or temporary restraining order. The
complaint alleged that the demolition was unlawful and that the
"complete demolition and destruction of the previously existing
commercial fish center of plaintiff is valued at Ten Million
(P10,000,000.00) pesos."
On July 30, 2004, the trial court ruled in favor of Maramba and
awarded P10 million as actual damages. On August 26, 2004,
petitioner city filed a motion for reconsideration which was
denied due to the City Legal Officer's mistake, negligence and
gross incompetence, consisting in the following: (1) He did not
present testimonial evidence for the defense; (2) He filed a
Motion for Reconsideration of a decision most prejudicial to the
City on the last day, and did not even base his arguments on the
transcripts that clearly show that the plaintiff had presented
absolutely no evidence/proof of her claim for damages and
attorney's fees; (3) He did not directly attack the Decision itself,
which awarded P10M as actual damages and P500,000.00 as
attorney's fees without stating clearly and distinctly the facts on
which the awards are based (because there are actually no such
facts); (4) He filed a motion for reconsideration without the
requisite notice of hearing - his most grievous and fatal error.
This resulted in the finality of the Decision, and the issuance of
the Order of Execution; (5) He kept the adverse decision, the
denial of his Motion for Reconsideration and the Order of
Execution from the City Mayor, his immediate superior, and
relied on his own devices.
Petitioner city then filed a petition for relief with prayer for
preliminary injunction dated October 29, 2004, together with an
affidavit of merit. The city alleged that "the decision, were it not
for the City Legal Officer's mistake, negligence and gross
incompetence, would not have been obtained by the plaintiff,
or should have been reconsidered or otherwise overturned, the

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
damage award in the total amount of P11M being not only
unconscionable and unreasonable, but completely baseless."
RULING: A petition for relief from judgment under Rule 38 is an
equitable remedy which allows courts to review a judgment
tainted with neglect bordering on extrinsic fraud. In this case,
total damages in the amount of P11 million was awarded in spite
of the evidence on record. The motion for reconsideration of such
judgment filed by the legal officer of the City of Dagupan
inexplicably omitted the required notice for hearing. Considering
the damage that would be suffered by the local government,
such mistake was so glaring as to raise suspicion that it was
contrived to favor the plaintiff.
Rule 38 of the Rules of Court allows for the remedy called a
petition for relief from judgment. This is an equitable remedy
"allowed in exceptional cases when there is no other available or
adequate remedy" that will allow for substantive justice.
Courts may set aside final and executory judgments provided
that any of the grounds for their grant are present. The presence
of "fraud, accident, mistake or excusable negligence" must be
assessed from the circumstances of the case.
Atty. Laforteza's "mistake” was fatal considering that the trial
court awarded a total amount of P11 million in favor of
Maramba based merely on her testimony that "the actual cost
of the building through continuous improvement is Five Million
(5M) more or less."
First, nowhere in the trial court's July 30, 2004 decision did it
state or refer to any document presented by Maramba to
substantiate her claimed costs. In fact, the amounts she testified
on did not even add up to the P10 million the court awarded as
actual damages.
Second, the body of the trial court's July 30, 2004 decision
mentioned that Maramba was entitled to P1 million as moral
damages and P500,000.00 as attorney's fees. This is inconsistent
with the dispositive portion that awarded P500,000.00 as moral
damages and P500,000.00 as attorney's fees.
The affidavit of merit discussed that Maramba testified on her
shock, sleepless nights, and mental anguish, but she never
expressly asked for moral damages or specified the amount of
P500,000.00. On the amount of attorney's fees, the affidavit of
merit explained that Maramba did not show a legal retainer but
only mentioned in passing, “Of course, (I am asking for) my
attorney's fees in the amount of P500,000.00."
Maramba now wants this court to overlook all these blatant
discrepancies and maintain the P11 million unsubstantiated
award in her favor on the sole ground that petitioner city's
assistant legal officer failed to include a notice of hearing in its
motion for reconsideration that was filed within the 15-day
reglementary period. She did not even attempt to address the
lower court's findings that her claimed amounts as damages
were all unsubstantiated.
The gross disparity between the award of actual damages and
the amount actually proved during the trial, the magnitude of
the award, the nature of the "mistake" made, and that such
negligence did not personally affect the legal officer of the city
86
all contributed to a conclusion that the mistake or negligence
committed by counsel bordered on extrinsic fraud.
There were discrepancy and lack of proof even on the amount of
moral damages and attorney's fees awarded. This only
heightened a sense of arbitrariness in the trial court's July 30,
2004 decision. Petitioner city's petition for relief was correctly
granted in the trial court's August 25, 2005 decision.
Petitioner city followed the procedure under Rule 38 of the Rules
of Court. Section 4 of Rule 38 provides that "[if] the petition is
sufficient in form and substance to justify relief, the court in
which it is filed, shall issue an order requiring the adverse parties
to answer the same within fifteen (15) days from the receipt
thereof."
The trial court mentioned in its November 18, 2004 order
denying petitioner city's petition for relief from judgment that an
answer with motion to dismiss was filed before it. Maramba
prayed that the "petition for review be outright denied for lack
of merit (and) that the writ of execution dated October 26, 2004
be accordingly implemented.”
Thus, the requirement under Section 4 of Rule 38 was complied
with when Maramba filed an answer with motion to dismiss, and
the court considered this pleading in its resolution of petitioner
city's petition for relief from judgment.
PROPER COURT
Under the present Rules, petitions for relief from a judgment, final
order or other proceeding rendered or taken should be filed in and
resolved by the court in the same case from which the petition
arose. Thus, petition for relief from a judgment, final order or
proceeding involved in a case tried by a municipal trial court shall
be filed in and decided by the same court in the same case, or in
the Regional Trial Court if the case was decided by it (REDENA
versus COURT OF APPEALS, G.R. No. 146611, February 6, 2007).
"IN ANY COURT"
This simply means that the petition is available as a remedy in cases
decided by any court of justice, including the MTC or RTC. However:
THERE IS NO PETITION FOR RELIEF IN THE SUPREME COURT AND
THE COURT OF APPEALS. No petitioner can avail of a petition for
relief under Rule 38 from a resolution of the Supreme Court
denying his petition for review.
PURCON versus MRM PHILIPPINES, INC.
G.R. No. 182718, September 26, 2008
The Supreme Court ruled that a petition for relief from judgment
is not an available remedy in the Supreme Court. In summary,
the Supreme Court explained that:
First, although Section 1 of Rule 38 states that when a judgment
or final order is entered through fraud, accident, mistake, or
excusable negligence, a party in any court may file a petition for
relief from judgment, this rule must be interpreted in harmony
with Rule 56, which enumerates the original cases cognizable by
the Supreme Court, thus:
Section 1. Original cases cognizable. - Only petitions
for certiorari, prohibition, mandamus, quo warranto,
habeas corpus, disciplinary proceedings against
members of the judiciary and attorneys, and cases

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
affecting ambassadors, other public ministers and
consuls may be filed originally in the Supreme Court.
A petition for relief from judgment is not included in the list of
Rule 56 cases originally cognizable by this Court.
Second, while Rule 38 uses the phrase "any court," it refers only
to Municipal/Metropolitan and Regional Trial Courts. As revised,
Rule 38 radically departs from the previous rule as it now allows
the Metropolitan or Municipal Trial Court which decided the case
or issued the order to hear the petition for relief. Under the old
rule, a petition for relief from the judgment or final order of
Municipal Trial Courts should be filed with the Regional Trial
Court.
The procedural change in Rule 38 is in line with Rule 5,
prescribing uniform procedure for Municipal and Regional Trial
Courts and designation of Municipal/Metropolitan Trial Courts
as courts of record.
Third, the procedure in the CA and the Supreme Court are
governed by separate provisions of the Rules of Court. It may,
from time to time, be supplemented by additional rules
promulgated by the Supreme Court through resolutions or
circulars. As it stands, neither the Rules of Court nor the Revised
Internal Rules of the CA allows the remedy of petition for relief
in the CA.
There is no provision in the Rules of Court making the petition for
relief applicable in the CA or this Court. The procedure in the CA
from Rules 44 to 55, with the exception of Rule 45 which pertains
to the Supreme Court, identifies the remedies available before
said Court such as annulment of judgments or final orders or
resolutions (Rule 47), motion for reconsideration (Rule 52), and
new trial (Rule 53). Nowhere is a petition for relief under Rule 38
mentioned.
If a petition for relief from judgment is not among the remedies
available in the CA, with more reason that this remedy cannot
be availed of in the Supreme Court. This Court entertains only
questions of law. A petition for relief raises questions of facts on
fraud, accident, mistake, or excusable negligence, which are
beyond the concerns of this Court.
BAGAPORO versus PEOPLE
G.R. No. 211829 | January 30, 2019
The nature of an action, as well as which court or body has
jurisdiction over it, is determined based on the allegations
contained in the complaint of the plaintiff, irrespective of
whether or not the plaintiff is entitled to recover upon all or
some of the claims asserted therein. Notably, the petition for
relief was filed in the same case, which resolution had already
become final. An examination of petitioner's averments and
relief sought, i.e., the setting aside of a final and executory
resolution denying an appeal, leads to no other conclusion than
that it is the mode provided under Rule 38 of the Rules of Court
whether or not that was what petitioner intended. The CA
cannot, thus, be faulted for treating the petition as one which
sought the relief provided by Rule 38, and consequently
dismissing it. It is settled that a petition for relief from judgment
is not an available remedy in the CA.
87
Citing Spouses Mesina v. Meer in its assailed January 29, 2014
Resolution, the CA reasoned that a petition for relief is not the
proper remedy from a CA Resolution dismissing an appeal. As
explained in Mesina:
x x x While Rule 38 uses the phrase "any court," it refers only to
municipal/metropolitan and regional trial courts.
The procedure in the Court of Appeals and the Supreme Court
are governed by separate provisions of the Rules of Court and
may, from time to time, be supplemented by additional rules
promulgated by the Supreme Court through resolutions or
circulars. As it stands, neither the Rules of Court nor the Revised
Internal Rules of the Court of Appeals allow the remedy of
petition for relief in the Court of Appeals.
APPLICABILITY TO CASES DECIDED UNDER SUMMARY RULES
BAYOG versus NATINO
G.R. No. 118691 | July 5, 1996
When Section 19 of the Revised Rule on Summary Procedure
bars a petition for relief from judgment of a petition for
certiorari, mandamus, or prohibition against any interlocutory
order issued by the court, it has in mind no other than Section 1,
Rule 38 regarding petitions for relief from judgment, and Rule
65 regarding petitions for certiorari, mandamus, or prohibition,
of the Rules of Court, respectively. These petitions are
cognizable by Regional Trial Courts, and not by Metropolitan
Trial Courts, Municipal Trial Courts, or Municipal Circuit Trial
Courts. If Section 19 of the Revised Rule on Summary Procedure
and Rules 38 and 65 of the Rules of Court are juxtaposed, the
conclusion is inevitable that no petition for relief from judgment
nor a special civil action of certiorari, prohibition, or mandamus
arising from cases covered by the Revised Rule on Summary
Procedure may be filed with a superior court. This is but
consistent with the mandate of Section 36 of B.P. Blg. 129 to
achieve an expeditious and inexpensive determination of the
cases subject of summary procedure.
WHO MAY FILE PETITION
A petition for relief from judgment together with a motion for new
trial and a motion for reconsideration are remedies available only
to parties in the proceedings where the assailed judgment is
rendered. In fact, it has been held that a person who was never a
party to the case, or even summoned to appear therein, cannot
avail of a petition for relief from judgment (ALABAN versus CA, G.R.
No. 156021, September 23, 2005).
REQUISITES FOR FILING
DUREMDES versus JORILLA, ET AL.
G.R. No. 234491 | February 26, 2020
For the filing of a petition for relief to be proper, petitioner must
satisfy the following requirements: (1) he or she has no
adequate remedy available to him, which is either a motion for
new trial or appeal from adverse decisions of the lower court,
and he was prevented by fraud, accident, mistake or excusable
negligence from filing such motion or taking the appeal; and (2)
he or she must comply with the double period set forth under
Section 3, Rule 38 of the Rules of Court.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Section 3. Time for filing petition; contents and verification. A
petition provided for in either of the preceding sections of this
Rule must be verified, filed within sixty (60) days after the
petitioner learns of the judgment, final order, or other
proceeding to be set aside, and not more than six (6) months
after such judgment or final order was entered, or such
proceeding was taken; and must be accompanied with affidavits
showing the fraud, accident, mistake, or excusable negligence
relied upon, and the facts constituting the petitioner's good and
substantial cause of action or defense, as the case may be.
WHEN TO FILE
The petition shall be filed within sixty (60) days after the petitioner
learns of the judgment, final order or proceeding and not more
than six (6) months after such judgment or final order was entered,
or such proceeding was taken.
It is thus clear that a party filing a petition for relief from judgment
must strictly comply with two (2) reglementary periods: first, the
petition must be filed within sixty (60) days from knowledge of the
judgment, order or other proceeding to be set aside; and second,
within a fixed period of six (6) months from entry of such judgment,
order or other proceeding. THESE TWO PERIODS MUST CONCUR.
Both periods are also NOT EXTENDIBLE AND NEVER INTERRUPTED.
Strict compliance with these periods is required because a petition
for relief from judgment is a final act of liberality on the part of the
State, which remedy cannot be allowed to erode any further the
fundamental principle that a judgment, order or proceeding must,
at some definite time, attain finality in order to put an end to
litigation (THOMASITES CENTER FOR INTERNATIONAL STUDIES
versus RODRIGUEZ, G.R. No. 203642, January 27, 2016).
Indeed, relief is allowed only in exceptional cases as when there is
no other available or adequate remedy. As it were, a petition for
relief is actually the "last chance" given by law to litigants to
question a final judgment or order. And failure to avail of such "last
chance" within the grace period fixed by the Rules is fatal
(QUELNAN versus VHF PHIL., 433 SCRA 631). While strict
interpretation is the norm in applying the periods mentioned, such
rule is always subject to the power of the Supreme Court to effect
a liberal interpretation when dictated by the circumstances.
LASAM versus PHILIPPINE NATIONAL BANK
G.R. No. 207433 | December 05, 2018
Unfortunately for Lasam, she failed to comply with these two
periods when she filed her petition for relief from a final order
before the RTC. It must be emphasized that the subject of
Lasam's petition for relief is the RTC's February 23, 2010 Order.
Accordingly, the reglementary periods provided in Section 3,
Rule 38 of the Rules of Court must be reckoned from Lasam's
knowledge of the said order, as well as on the date it was
entered.
In her petition for relief, Lasam alleged that the petition was
filed within 60 days from the time she learned of the finality of
the RTC's February 23, 2010 Order. The insufficiency of this
allegation is very glaring.
Again, and as expressly provided under the Rules of Court, the
60-day period under Section 3, Rule 38 of the Rules of Court
should be reckoned from the time the aggrieved party has
knowledge of the judgment or order sought to be set aside. In
88
other words, for purposes of the 60-day period under Rule 38,
knowledge of the finality of the judgment or order is irrelevant.
The records reveal that Lasam's knowledge of the February 23,
2010 Order could be traced to at least two periods: on February
23, 2010, when the Court issued the subject Order and on which
Lasam was admittedly in attendance; and on July 23, 2010, the
date Lasam signed the Verification and Certification for the
Petition for Certiorari filed with the CA. It must be underlined
that the very subject of the aforementioned petition for
certiorari was the February 23, 2010 Order itself.
On the other hand, while there was an attempt to argue the
compliance with the 60-day period in the petition for relief,
there was no effort to show that the six-month period – which
is equally relevant for a petition for relief - was complied with. It
may be that this was consciously adopted to conceal the fact
that the petition for relief was also filed beyond the six month
reglementary period. As pointed out by the PNB, the RTC's
February 23, 2010 Order was, in effect, entered on May 3, 2012,
when this Court's February 22, 2012 Resolution in G.R. No.
199846 was entered in the Book of Entries of Judgments. Thus,
the January 22, 2013 petition for relief was filed two months
late.
From the foregoing, it is clear that Lasam failed to comply with
the 60-day period provided under Section 3, Rule 38 of the Rules
of Court when she filed her petition for relief on January 22,
2013, or almost three years from the time she acquired
knowledge of the order sought to be set aside. Likewise, she
failed to comply with the six-month period provided in the same
Rule when she filed her petition for relief more than eight
months from the date of entry of the order sought to be set
aside.
Since strict compliance with the relevant periods was not
observed, the RTC correctly dismissed Lasam's petition. At the
time the petition was filed, the reglementary periods under Rule
38 had already expired. Consequently, the RTC lost all
jurisdiction to entertain the same. Thus, no grave abuse of
discretion could be attributed to the trial court when it
dismissed the petition outright.
CITY OF DAGUPAN v. MARAMBA
G.R. No. 174411 | July 02, 2014
The double period required under this provision is jurisdictional
and should be strictly complied with. Otherwise, a petition for
relief from judgment filed beyond the reglementary period will
be dismissed outright.
The 60-day period to file a petition for relief from judgment is
reckoned from actual receipt of the denial of the motion for
reconsideration when one is filed.
Petitioner city received a copy of the July 30, 2004 decision on
August 11, 2004. It filed a motion for reconsideration on August
26, 2004. On October 25, 2004, it received a copy of the October
21, 2004 trial court order denying its motion for reconsideration.
Four days later or on October 29, 2004, it filed its petition for
relief from judgment. Thus, the petition for relief from judgment
was considered filed on time.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
COMPUTING FOR THE SIX-MONTH PERIOD
BAYOG v. NATINO
G.R. No. 118691 | July 5, 1996
The 6-month period is computed from the date of actual entry
of the order or judgment as this is defined in Sec. 2, Rule 36, that
is, from the recording of the judgment or order in the book of
entries of judgments and not from the date of the order of
default or the rendition of the judgment or the finality of the
judgment.
With respect to the "proceedings" in Courts of First Instance
which can be subject of petitions for relief, the date when the
proceedings were taken control. Also, in judgments upon
compromise, being immediately executory, prescription runs
from the date of its rendition, hence the 6 months period also
runs therefrom.
THE DOUBLE PERIOD DOES NOT APPLY WHERE EXTRINSIC FRAUD
ULTIMATELY RESULTS IN THE COURT'S LACK OF JURISDICTION
OVER THE DEFENDANT
DUREMDES v. JORILLA, ET AL.
G.R. No. 234491 | February 26, 2020
Section 3 will not apply when a petition for relief which is
grounded on extrinsic fraud ultimately results in the court's lack
of jurisdiction over the defendant, and which consequently
makes the judgment rendered by the trial court void. In such a
case, the petition for relief should not be dismissed for failure of
one to avail himself of the remedy of an appeal and for
untimeliness. XXX
Here, petitioner invoked the ground of extrinsic fraud in his
petition for relief. He argued that he was deprived of the
opportunity to participate in the proceedings before the RTC in
Civil Case No. Q-09-65496 by reason of respondents' act of
providing the court with an erroneous address where summons
may be served on him. Petitioner alleged that respondents' act
was for the purpose of fraudulently gaining a favorable
judgment.
The rule is that jurisdiction over a defendant in a civil case is
acquired either through service of summons or through
voluntary appearance in court and submission to its authority.
Thus, in the absence of service or when the service of summons
upon the person of defendant is defective, the court acquires no
jurisdiction over his person, and the judgment rendered against
him is null and void.
Here, the action filed by respondents before the RTC which is an
action for Collection of Sum of Money plus Damages is an action
in personam because respondents sought to enforce a personal
obligation against petitioner. In an action in personam, if the
defendant does not voluntarily appear in court, the court
acquires jurisdiction through personal or substituted service of
summons. Assuming the truth on petitioner's argument, the
necessary consequence of the extrinsic fraud committed upon
petitioner is that the RTC lacked jurisdiction over his person.
XXX A judgment rendered by a court without jurisdiction is null
and void and may be attacked anytime. As it is no judgment at
all, all acts performed pursuant to it and all claims emanating
89
from it have no legal effect. XXX A void judgment can never
become final and executory and may even be assailed or
impugned anytime. Further, in NHA v. Commission on
Settlement of Land Problems, the Court ruled that a petition for
certiorari to declare the nullity of a void judgment should not be
dismissed for untimeliness since a void judgment never acquires
finality and any action to declare its nullity does not prescribe.
XXX
Also, under Section 2 in relation to Section 3, Rule 47 of the Rules
of Court, when the petition for annulment of judgment is
grounded on lack of jurisdiction, the petition may be filed before
it is barred by laches or estoppel.
Similarly, a petition for relief which is grounded on extrinsic
fraud and which ultimately negates the court's jurisdiction may
be filed anytime as long as the action is not barred by laches or
estoppel.
FORM OF THE PETITION: AFFIDAVIT OF MERIT
The petition must be VERIFIED and must be accompanied with
affidavits showing fraud, accident, mistake or excusable negligence
relied upon, and the facts constituting the petitioner's good and
substantial cause of action or defense, as the case may be (Sec. 3,
Rule 38, Rules of Court).
As worded, Section 3 seems to follow the rule in Rule 37, as
interpreted in PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK v.
RODOLFO ORTIZ, ET AL., G.R. No. L-49223, May 29, 1987, stating
that there are two affidavits required - one for the absolutory cause
and one for the good and substantial cause of action or defense.
However, take note of:
CONSUL v. CONSUL
G.R. No. L-22713, July 26, 1966
Affidavit of merits has a known purpose: Courts and parties
should not require the machinery of justice to grind anew, if the
prospects of a different conclusion cannot be reasonably
reached should relief from judgment be granted. We look back
at the facts here.
The petition for relief is verified by petitioner himself. The merits
of petitioner's case are apparent in the recitals of the petition.
Said petition is under oath. That oath, we believe, elevates the
petition to the same category as a separate affidavit. To require
defendant to append an affidavit of merits to his verified
petition, in the circumstances, is to compel him to do the
unnecessary. Therefore, the defect pointed by the court below
is one of form, not of substance. Result: Absence of a separate
affidavit is of de minimis importance.
Section 4. Order to file an answer. If the petition is sufficient in
form and substance to justify relief, the court in which it is filed,
shall issue an order requiring the adverse parties to answer the
same within fifteen (15) days from the receipt thereof. The
order shall be served in such manner as the court may direct,
together with copies of the petition and the accompanying
affidavits.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
ORDER TO ANSWER
If the petition is sufficient in form and substance, to justify relief,
the court in which it is filed, shall issue an order requiring the
adverse parties to answer the same within fifteen (15) days from
the receipt thereof (Sec. 4, Rule 38, Rules of Court).
Section 5. Preliminary injunction pending proceedings. — The
court in which the petition is filed may grant such preliminary
injunction as may be necessary for the preservation of the rights
of the parties, upon the filing by the petitioner of a bond in favor
of the adverse party, conditioned that if the petition is dismissed
or the petitioner fails on the trial of the case upon its merits, he
will pay the adverse party all damages and costs that may be
awarded to him by reason of the issuance of such injunction or
the other proceedings following the petition, but such
injunction shall not operate to discharge or extinguish any lien
which the adverse party may have acquired upon, the property,
of the petitioner. (5a)
PRELIMINARY INJUNCTION PENDING THE PETITION FOR RELIEF
Remember that a petition for relief is a remedy available after the
judgment or final order has become final and executory. Hence, the
judgment could be the subject of a writ of execution. There is
nothing in the Rules that precludes the execution of the judgment
that is already executory upon proper application of the prevailing
party during the pendency of the petition.
The petitioner therefore, would be interested in the preservation
of the status quo as well as the preservation of the rights of the
parties before the petition is resolved. Hence, the petitioner may
avail of the remedy allowed him under Sec. 5 of Rule 38. Under this
provision, the court in which the petition is filed, may grant such
preliminary injunction to preserve the rights of the parties upon the
filing of a bond in favor of the adverse party. The bond is
conditioned upon the payment to the adverse party of all damages
and costs that may be awarded to such adverse party by reason of
the issuance of the injunction or the other proceedings following
the petition (Sec. 5, Rule 38, Rules of Court).
Section 6. Proceedings after answer is filed. After the filing of
the answer or the expiration of the period therefor, the court
shall hear the petition and if after such hearing, it finds that the
allegations thereof are not true, the petition shall be dismissed;
but if it finds said allegations to be true, it shall set aside the
judgment or final order or other proceedings complained of
upon such terms as may be just. Thereafter the case shall stand
as if such judgment, final order or other proceeding had never
been rendered, issued or taken. The court shall then proceed to
hear and determine the case as if a timely motion for a new trial
or reconsideration had been granted by it.
Section 7. Procedure where the denial of an appeal is set aside.
Where the denial of an appeal is set aside, the lower court shall
be required to give due course to the appeal and to elevate the
record of the appealed case as if a timely and proper appeal had
been made.
HEARING OF THE PETITION
After the filing of the answer or the expiration of the period to file
the answer, the court shall hear the petition (Sec. 6, Rule 38, Rules
of Court) to determine whether the judgment or order complained
90
of should be set aside. This is the FIRST HEARING that may be
undertaken.
ACTIONS OF THE COURT
After the hearing and the court finds that the allegations therein
are not true, it shall dismiss the petition.
If the court finds the allegations to be true, it shall set aside the
judgment, final order or other proceeding complained of. The case
then shall stand as if such judgment, final order or proceeding HAD
NEVER BEEN RENDERED, ISSUED OR TAKEN. The court shall then
proceed to hear and determine the case as if a timely motion for a
new trial or reconsideration had been granted by it, which simply
means that the actual merits of the case will be heard by the court.
This is the SECOND HEARING that may be taken by the court, which
is similar to a motion for new trial.
This action of the court applies to a petition for relief praying that
the judgment, final order or proceeding be set aside having been
entered or taken against petitioner by fraud, accident, mistake or
excusable negligence.
Where the prayer of petitioner is to give due course to his appeal
because he was prevented from taking an appeal through fraud,
accident, mistake or excusable negligence, and the court finds the
allegations of the petition to be true, the court shall set aside the
previous denial of the appeal and shall give due course to the said
appeal. It shall then elevate the records of the appealed case as if a
timely and proper appeal had been made.
REMEDY AGAINST ORDER DENYING PETITION FOR RELIEF
SANTOS v. SANTOS
G.R. No. 214593 | July 17, 2019
The 1997 Rules of Civil Procedure changed the nature of an
order of denial of a petition for relief from judgment, making it
unappealable and, hence, assailable only via a petition for
certiorari. Nevertheless, the appellate court, in deciding such
petitions against denials of petitions for relief, remains tasked
with making a factual determination, i.e., whether or not the
trial court committed grave abuse of discretion in denying the
petition.
To do so, it is still obliged to "determine not only the existence
of any of the grounds relied upon whether it be fraud, accident,
mistake or excusable negligence, but also and primarily the
merit of the petitioner's cause of action or defense, as the case
may be." Stated otherwise, the finality of the RTC decision
cannot bar the appellate court from determining the issues
raised in the petition for relief, if only to determine the existence
of grave abuse of discretion on the part of the trial court in
denying such petition. While a Rule 38 Petition does not stay the
execution of the judgment, the grant thereof reopens the case
for a new trial; and thus, if merit be found in the certiorari
petition assailing the trial court's denial of the petition for relief,
the case will be reopened for new trial.
 91
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

DISTINCTIONS
MOTION FOR PETITION FOR 4. He may also appeal from the judgment rendered against him
NEW TRIAL RELIEF FROM as contrary to the evidence or to the law, even if no petition to
JUDGMENT set aside the order of default has been presented by him (Sec.
A motion for new A petition for relief 2, Rule 41).
trial is based on is based on the
Fraud, Accident, grounds that the 5. Moreover, a petition for certiorari to declare the nullity of a
Mistake, Excusable petitioner has judgment by default is also available if the trial court improperly
Negligence, and been unjustly declared a party in default, or even if the trial court properly
newly discovered deprived of a declared a party in default, if grave abuse of discretion attended
evidence. hearing therein, or such declaration (PACETE v. CARIAGA, JR., G.R. No. 53880, 17
AS TO GROUNDS that he has March 1994, 231 SCRA 321).
prevented from
taking an appeal, in COMPARATIVE TABLE: “FAME” REMEDIES
either case, by RULE 9 RULE 37 RULE 38
reason of Fraud,
Motion to set Motion for Petition for
Accident, Mistake,
REMEDY aside order of new trial relief from
or Excusable
default. judgment
Negligence.
After notice of After Within 60
A motion for new A petition for relief
the order of judgment is days after the
trial should be filed from judgment is
default but rendered, or petitioner
within the period filed within 60 days
before default default learns of the
for taking an after the petitioner
judgment is judgment in judgment,
appeal. learns of the
rendered. the case of a final order or
judgment, final
defaulted proceeding
This means that order, or other
defendant, and not more
the judgment has proceeding to be
PERIOD but before than 6
not yet attained set aside and not
AS TO TIME OF the judgment months after
finality. more than 6
FILING becomes such
months, after such
final. judgment or
judgment or final
final order
order was entered.
was entered,
or such
This means that proceeding
the petition may was taken.
be filed after the
An order A judgment A judgment,
judgment has
AVAILABLE declaring the order or
become final.
AGAINST defendant in proceeding.
EFFECT ON No Distinction. default.
JUDGMENT IF
AVAILABLE Defendant Any party Any party
GRANTED
TO
The judgment The Appeal may
LINA v. COURT OF APPEALS itself, not the judgment no longer be
G.R. No. L-63397 | April 9, 1985 declaration of itself, not available but
default, is denial of the certiorari, as
APPEAL
The remedies available to a party declared in default are: appealable motion, is an extra-
appealable ordinary
1. The defendant in default may, at any time after discovery remedy, may
thereof and before judgment, file a motion under oath to set be availed of.
aside the order of default on the ground that his failure to
answer was due to fraud, accident, mistake or excusable
negligence, and that he has a meritorious defense (Sec. 3(6),
Rule 9]);

2. If the judgment 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 Section 1 (a) of Rule 37;

3. If the defendant discovered the default after the judgment

has become final and executory, he may file a petition for relief
under Section 1 of Rule 38; and

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 47
ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND
RESOLUTIONS
*Compiled and Updated by: JZE and LCYE
BACKGROUND
Rule 47 was an entirely new rule that was introduced for the first
time by the 1997 Rules of Civil Procedure. This rule governs the
remedy of annulment of judgments or final orders or resolutions.
Recall that under Section 9 of Batas Pambansa Blg. 129, the Court
of Appeals is vested with exclusive original jurisdiction over actions
for annulment of judgments of the Regional Trial Courts.
The petition governed by Rule 47 is an original action and is not
considered a mode of appeal. Contrasted with remedies that are
considered appellate in character where the judgment appealed
from is valid, under Rule 47, the petitioner prays that judgment be
declared void. Under the 1964 Rules, there was no direct rule
expressly governing the remedy of annulment of judgment as the
guidelines that governed the remedy were merely based on and
culled from decided cases. Rule 47, in effect, codified the applicable
rulings and doctrines into one coherent rule.
REMEDIES TO ATTACK A VOID JUDGMENT
A void judgment may be attacked either directly or collaterally.
When a judgment is null and void on its very face, the judgment is
susceptible to a direct or collateral attack. When the nullity of the
judgment is not apparent on its face, it may only be attacked
directly.
A direct attack on a judgment or decree is an attempt, for sufficient
cause, to have it annulled, reversed, vacated, corrected, declared
void, or enjoined, in a proceeding instituted for that specific
purpose, such as an appeal, writ of error, bill of review, or
injunction to restrain its execution. It is distinguished from a
collateral attack, which is an attempt to impeach the validity or
binding force of the judgment or decree as a side issue or in a
proceeding instituted for some other purpose. A direct attack on a
judicial proceeding is an attempt to void or correct it in some
manner provided by law (Black's Law Dictionary, Revised Fourth
Edition, p. 546).
A collateral or indirect attack, or the act of assailing a judgment a
latere, in essence, is an attempt to avoid, defeat, or evade it, or
deny its force and effect, in some incidental proceeding not
provided by law for the express purpose of attacking it (see Black's
Law Dictionary, Revised Fourth Edition, p. 326).
When a party collaterally attacks a judgment that is void on its face,
there is no need for him to file a case. He simply invokes the nullity
of the judgment at the opportune time. Verily, a judgment which is
void on its very face can be attacked at any time, in any manner and
at any place. For example, if a party moves to execute a judgment
that is void on its face, the opponent may simply oppose the
execution on the ground that the judgment is void. Note that the
opponent is not filing a direct action to declare the nullity of the
judgment because it is void on its face.
On the other hand, by direct attack is meant that a party must file
an action to declare the nullity of the judgment. Rule 47 is one of
those remedies by which a party may assail a void judgment.
Certiorari under Rule 65 is also a mode of attacking a judgment.
92
Section 1. Coverage. This Rule shall govern the annulment by
the Court of Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial Courts for which the
ordinary remedies of new trial, appeal, petition for relief or
other appropriate remedies are no longer available through no
fault of the petitioner. (n)
NATURE OF ANNULMENT OF JUDGMENT AS A PROCEDURAL
REMEDY
Annulment of judgment, as provided for in Rule 47, is unlike a
motion for reconsideration, appeal or even a petition for relief from
judgment, because annulment is not a continuation or progression
of the same case, as in fact the case it seeks to annul is already final
and executory. Rather, it is an extraordinary remedy that is
equitable in character and is permitted only in exceptional cases
(FRIAS versus ALCAYDE, G.R. No. 194262, February 28, 2018).
Section 1, Rule 47 of the Rules of Court provides that the remedy of
annulment by the CA of judgments or final orders and resolutions
in civil actions of the Regional Trial Courts can only be availed of
where the ordinary remedies of new trial, appeal, petition for relief
or other appropriate remedies are no longer available through no
fault of the petitioner.
Thus, a petition for annulment of judgment under Rule 47 is a
remedy granted only under exceptional circumstances where a
party, without fault on his part, had failed to avail of the ordinary
or other appropriate remedies provided by law; and such action is
never resorted to as a substitute for a party's own neglect in not
promptly availing of the ordinary or other appropriate remedies
(HEIRS OF CULLADO versus GUTIERREZ, G.R. No. 212938, July 30,
2019).
Annulment of judgment is a remedy in law independent of the case
where the judgment sought to be annulled was rendered (CANLAS
versus COURT OF APPEALS, G.R. No. 77691, August 8, 1991).
WHO MAY FILE PETITION
The remedy is available not only to one who is a party to the case
where the judgment sought to be annulled is rendered. A person
need not be a party to the judgment to be annulled as what is
essential is that he can prove his allegation that the judgment was
obtained by the use of collusion and he would be adversely affected
thereby (ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES versus
COURT OF APPEALS, G.R. No. 80892, September 29, 1989).
However, take note of the following case where the Supreme Court
disallowed a petition filed by a non-party:
DARE ADVENTURE FARM CORPORATION v. COURT OF
APPEALS
G.R. No. 161122 | September 24, 2012
FACTS: The petitioner acquired a parcel of land through a deed
of absolute sale executed on July 28, 1994 between the
petitioner, as vendee, and the Goc ongs, as vendors. The
petitioner later on discovered the joint affidavit executed on
June 19, 1990 by the Goc-ongs, whereby the Goc-ongs declared
that they were the owners of the property, and that they were
mortgaging the property to the Ngs to secure their obligation
amounting to P648,000.00, subject to the condition that should
they not pay the stipulated 36-monthly installments, the Ngs
would automatically become the owners of the property.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
With the Goc-ongs apparently failing to pay their obligation to
the Ngs as stipulated, the latter brought on January 16, 1997 a
complaint for the recovery of a sum of money, or, in the
alternative, for the foreclosure of mortgage in the Regional Trial
Court, Branch 56, in Mandaue City (RTC) only against
respondent Agripina R. Goc-ong. The action was docketed as
Civil Case No. MAN-2838. With Agripina R. Goc-ong being
declared in default for failing to file her answer in Civil Case No.
MAN-2838, the RTC declared the respondents as the owners. In
2001, the petitioner commenced in the CA an action for the
annulment of the decision of the RTC, however the CA dismissed
the petition for annulment of judgment.
ISSUE: Whether the Petitioner can file a petition to annul the
judgment of the RTC in a case where Petitioner was never a
party.
RULING: NO. A decision rendered on a complaint in a civil action
or proceeding does not bind or prejudice a person not impleaded
therein, for no person shall be adversely affected by the outcome
of a civil action or proceeding in which he is not a party. Hence,
such person cannot bring an action for the annulment of the
judgment under Rule 47 of the 1997 Rules of Civil Procedure,
except if he has been a successor in interest by title subsequent
to the commencement of the action, or the action or proceeding
is in rem the judgment in which is binding against him.
A petition for annulment of judgment is a remedy in equity so
exceptional in nature that it may be availed of only when other
remedies are wanting, and only if the judgment, final order or
final resolution sought to be annulled was rendered by a court
lacking jurisdiction or through extrinsic fraud. Yet, the remedy,
being exceptional in character, is not allowed to be so easily and
readily abused by parties aggrieved by the final judgments,
orders or resolutions. XXX
It is elementary that a judgment of a court is conclusive and
binding only upon the parties and those who are their successors
in interest by title after the commencement of the action in
court. Moreover, Section 1 of Rule 47extends the remedy of
annulment only to a party in whose favor the remedies of new
trial, reconsideration, appeal, and petition for relief from
judgment are no longer available through no fault of said party.
As such, the petitioner, being a non-party in Civil Case No. MAN-
2838, could not bring the action for annulment of judgment due
to unavailability to it of the remedies of new trial,
reconsideration, appeal, or setting the judgment aside through
a petition for relief. In this case, the petitioner probably brought
the action for annulment upon its honest belief that the action
was its remaining recourse from a perceived commission of
extrinsic fraud against it. It is worthwhile for the petitioner to
ponder, however, that permitting it despite its being a non-party
in Civil Case No. MAN-2838 to avail itself of the remedy of
annulment of judgment would not help it in any substantial way.
Although Rule 47 would initially grant relief to it from the effects
of the annulled judgment, the decision of the CA would not really
and finally determine the rights of the petitioner in the property
as against the competing rights of the original parties.
To be borne in mind is that the annulment of judgment is an
equitable relief not because a party-litigant thereby gains
93
another opportunity to reopen the already-final judgment but
because a party-litigant is enabled to be discharged from the
burden of being bound by a judgment that was an absolute
nullity to begin with. The Court agrees with the CA's suggestion
that the petitioner's proper recourse was either an action for
quieting of title or an action for reconveyance of the property.
XXX
JURISDICTION OVER ANNULMENT OF JUDGMENT
Section 1 specifically mentions annulment of judgment by the Court
of Appeals of judgments or final orders and resolutions of Regional
Trial Courts, in civil actions. However, the remedy is not limited to
the judgments of the Regional Trial Courts. Section 10 makes the
remedy specifically applicable to judgments or final orders and
resolutions of Municipal Trial Courts. An action to annul a judgment
or final order of a Municipal Trial Court shall be filed in the Regional
Trial Court having jurisdiction over the former. Pursuant to Section
19[6] of Batas Pambansa Blg. 129, the Regional Trial Court has
exclusive original jurisdiction"(i)n all cases not within the exclusive
jurisdiction of any court, tribunal, person or body exercising
jurisdiction or any court, tribunal, person or body exercising judicial
or quasi-judicial functions.” Annulment of judgments of the
Municipal Trial Courts is an example of such cases.
ANNULMENT OF JUDGEMENTS OF QUASI-JUDICIAL TRIBUNALS
IMPERIAL v. ARMES
G.R. No. 178842, January 30, 2017
FACTS: Napal and Imperial entered into a Memorandum of
Agreement (MOA) to organize a domestic corporation, to be
named NIDSLAND and to engage in real estate business. While
Imperial faithfully complied with his obligations under the MOA,
Napal failed to convey to NIDSLAND, for his capital contribution,
a certain portion of the Subject Property. Napal sold the Subject
Property to Cruz as evidenced by a Deed of Absolute Sale. In a
derivative suit filed by Imperial, for himself and in
representation of NIDSLAND, the Securities and Exchange
Commission (SEC) found that the sale to Cruz was simulated.
Thus, the SEC ordered the cancellation of the title in the name
of Cruz. The SEC directed Napal to execute the proper deed of
conveyance of the Subject Property in favor of NIDSLAND.
Since Napal did not appeal the SEC Decision, it became final and.
As ordered in the SEC Decision, a Deed of Conveyance was
issued in favor of NIDSLAND and title in the name of Cruz was
cancelled and a new one was issued in the name of the former.
ISSUE: Can Cruz file an action before the Regional Trial Court to
annul the decision of the SEC for being void?
RULING: NO. There have been several attempts to use an action
for annulment of judgment under Rule 47 of the Rules of Court
to set aside a void judgment of a quasi-judicial body. Thus, the
following issues: whether this remedy is available to set aside a
void judgment of a quasi-judicial body, and which tribunal has
jurisdiction over it.
In Springfield Development Corporation, Inc. v. Presiding Judge,
RTC, Misamis Oriental, Br. 40, Cagayan de Oro City, we explained
that regional trial courts have no jurisdiction to annul judgments
of quasi-judicial bodies of equal rank. It then proceeded to state
that the CA also has no jurisdiction over such an action.
Springfield emphasized that Section 9 of BP 129 and Rule 47 of

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
the Rules of Court both state that the CA has jurisdiction over
annulment of judgments of regional trial courts only. We ruled
in this case that the "silence of B.P. Blg. 129 on the jurisdiction
of the CA to annul judgments or final orders and resolutions of
quasi-judicial bodies like the DARAB indicates its lack of such
authority." While this case explained that neither the regional
trial courts nor the CA possess jurisdiction over an action to
annul the judgment of quasi-judicial bodies, it did not
categorically state that the remedy itself does not exist in the
first place.
The seeming confusion in the string of cases pertaining to the
jurisdiction over petitions for annulment of judgment of quasi-
judicial bodies is clarified when these cases are read in
conjunction with Macalalag v. Ombudsman. While we repeated
our consistent ruling that Rule 47 of the Rules of Court only
applies to judgments of regional trial courts, Macalalag also
explains that an action for the annulment of judgment is similar
in nature to an appeal-both are merely statutory. No right exists
unless expressly granted by law. In Macalalag, we implied that
the key to determining whether this remedy may be had and
where such action may be filed is to ascertain whether there is
a law expressly allowing a resort to this action before a particular
tribunal. This then requires an examination of the laws and rules
relevant to a specified quasi-judicial body. While it is correct that
both the regional trial courts and the CA cannot take cognizance
of a petition for annulment of judgment of a quasi-judicial body
under Rule 47 of the Rules of Court, they may nevertheless do
so, if a law categorically provides for such a remedy and clearly
provides them with jurisdiction.
Applying this to the present case, we rule that there is no law at
the time pertinent to this case, which allows the filing of a
petition for annulment of judgment before the regional trial
courts and the CA to set aside a void judgment of the SEC on the
basis of lack of jurisdiction. We hasten to emphasize, however,
that this pertains only to cases filed prior to Republic Act No.
8799 which transferred the jurisdiction over intra-corporate
disputes to regional trial courts designated as commercial
courts. As to the latter, Rule 47 clearly applies.
This leads to the conclusion that the RTC Petition is not the
proper remedy to assail the SEC Decision. Since it is an action for
the annulment of judgment, the RTC Petition cannot prosper as
we have already ruled that this remedy is not available in this
particular case. However, the error in Cruz's RTC Petition does
not automatically warrant a dismissal of these proceedings. We
rule that the SEC, in nullifying the sale between Napal and Cruz
and in ordering the cancellation of Cruz's TCTs in favor of
NIDSLAND, overstepped its jurisdiction. The SEC Decision was
rendered with grave abuse of discretion.
To assail the validity of the sale, Imperial and NIDSLAND sought
to prove that the sale to Cruz was simulated. This involves the
application of the law on sales. As we have already held in
Intestate Estate of Alexander T. Ty, the issue of whether a sale is
simulated falls within the jurisdiction of ordinary civil courts. It
does not concern an adjudication of the rights of Imperial,
NIDSLAND and Napal under the Corporation Code and the
internal rules of the corporation. The resolution of these
questions requires the application of an entire gamut of laws
that goes well beyond the expertise of the SEC.
94
In this case, the SEC, in rendering the decision, disregarded
established law and jurisprudence on the jurisdiction of the SEC.
Further, it adjudicated on the rights of Cruz, cancelled the deed
of sale, and took away his property without giving him the
opportunity to be heard. It is a breach of the basic requirements
of due process. Hence, because the SEC Decision was issued with
grave abuse of discretion and is therefore void, all acts
emanating from it have no force and effect. Thus, the Deed of
Conveyance issued pursuant to it has no legal effect.
Nevertheless, while the certificates of title issued in the name of
NIDSLAND arose from a void judgment, this Court cannot nullify
them in these proceedings. The indefeasibility of a Torrens title
prevents us from doing so. Further, we are bound by rules on
jurisdiction and the nature of the proceedings before us.
SUMMARY OF IMPERIAL
1. Neither the Regional Trial Court nor the Court of Appeals have
jurisdiction to annul judgments or final orders and resolutions
of quasi-judicial bodies, as a general rule. BP 129, in relation to
Rule 47, grants the RTC and the CA the power to annul
judgments of the MTC and the RTC, respectively.
2. An action for the annulment of judgment is similar in nature
to an appeal-both are merely statutory. No right exists unless
expressly granted by law. Thus, while the RTC and the CA
cannot take cognizance of a petition for annulment of
judgment of a quasi-judicial body under Rule 47, they may
nevertheless do so, if a law categorically provides for such a
remedy and clearly provides them with jurisdiction. Thus, if a
statute vests jurisdiction to any court to annul the judgments
of quasi-judicial bodies, Rule 47 can be applied.
3. There is no law which allows the filing of a petition for
annulment of judgment before the RTC and the CA to set aside
a void judgment of the SEC on the basis of lack of jurisdiction.
However, Rule 47 is applicable to judgments rendered by an
RTC that is designated as a special commercial court.
CORRELATION WITH OTHER POST-JUDGMENT REMEDIES
Recall that the remedy of new trial under Rule 37 must be availed
of before the judgment or order becomes final and executory. The
remedy of appeal must also be availed of before the judgment or
order attains finality. While a petition for relief from judgment
under Rule 38 may still be availed of even after the judgment or
order has become final and executory, this remedy is subject to the
double period under Rules 38, Section 3 (i.e. filed within 60 days
after the petitioner learns of the judgment, etc. to be set aside, and
not more than 6 months after such judgment, etc. was entered).
With Rule 47, even beyond the period to appeal or the further
periods under Rule 38, an aggrieved party is no longer bereft of any
further remedy by which to question and perhaps cause the
reversal of a judgment rendered against him.
JUDGMENTS, FINAL ORDERS AND RESOLUTIONS ONLY
BACLARAN MARKETING CORPORATION v. SIBULO
G.R. No. 189881½April 19, 2017
In Guiang v. Co, we declared that an auction sale and a writ of
execution are not final orders. Thus, they cannot be nullified
through an action for annulment of judgment, to wit:
It bears stressing that Rule 47 of the Rules of Civil Procedure
applies only to a petition to annul a judgment or final order
and resolution in civil actions, on the ground of extrinsic

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
fraud or lack of jurisdiction or due process. A final order or
resolution is one which is issued by a court which disposes
of the subject matter in its entirety or terminates a
particular proceeding or action, leaving nothing else to be
done but to enforce by execution what has been
determined by the court. The rule does not apply to an
action to annul the levy and sale at public auction of
petitioner's properties or the certificate of sale executed by
the deputy sheriff over said properties. Neither does it
apply to an action to nullify a writ of execution because a
writ of execution is not a final order or resolution, but is
issued to carry out the mandate of the court in the
enforcement of a final order or of a judgment. It is a judicial
process to enforce a final order or judgment against the
losing party.
Corollarily, an order implementing a writ of execution issued
over certain real properties is also not a final order as it merely
enforces a judicial process over an identified object. It does not
involve an adjudication on the merits or determination of the
rights of the parties. Similar to a writ of execution, a writ of
possession is not a final order which may be annulled under Rule
47. It is merely a judicial process to enforce a final order against
the losing party. For this reason the Decision of the Antipolo
Court ordering the issuance of writ of possession is also not
amenable to an action for annulment of judgment.
PROPER REMEDY TO ASSAIL EXECUTION
MEJIA-ESPINOZA v. CARIÑO
G.R. No. 193397 ½ January 25, 2017
The proper remedy is to file a motion to nullify the writ of
execution and notices of levy and sale before the MTC, instead
of instituting a new complaint before the RTC. This is because
the execution of a decision is merely incidental to the
jurisdiction already acquired by a trial court. As we explained in
Deltaventures Resources, Inc. v. Cabato:
Jurisdiction once acquired is not lost upon the instance of
the parties but continues until the case is terminated.
Whatever irregularities attended the issuance and
execution of the alias writ of execution should be referred
to the same administrative tribunal which rendered the
decision. This is because any court which issued a writ of
execution has the inherent power, for the advancement of
justice, to correct errors of its ministerial officers and to
control its own processes.
NATURE OF PETITION FOR ANNULMENT OF JUDGMENT FOR THE
PURPOSE OF SUMMONS
FRIAS v. ALCAYDE
G.R. No. 194262 ½ February 28, 2018
For a proper perspective, it is crucial to underscore the necessity
of determining first whether the action subject of this appeal is
in personam, in rem, or quasi in rem because the rules on service
of summons under Rule 14 apply according to the nature of the
action.
An action in personam is a proceeding to enforce personal rights
and obligations brought against the person and is based on the
jurisdiction of the person. Actions in rem are actions against the
thing itself. They are binding upon the whole world. In an action
quasi in rem, an individual is named as defendant and the
95
purpose of the proceeding is to subject his interests therein to
the obligation or loan burdening the property.
In actions in personam, the judgment is for or against a person
directly. Jurisdiction over the parties is required in actions in
personam because they seek to impose personal responsibility
or liability upon a person. In a proceeding in rem or quasi in rem,
jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court, provided that
the latter has jurisdiction over the res. Jurisdiction over the res
is acquired either (a) by the seizure of the property under legal
process, whereby it is brought into actual custody of the law; or
(b) as a result of the institution of legal proceedings, in which the
power of the court is recognized and made effective.
Here, respondent filed a petition to annul the MeTC's July 26,
2006 Decision, which ordered him to vacate the premises of the
subject property and to pay the petitioner the accrued rentals
thereon, in violation of the parties' lease contract.
XXX For purposes of summons, this Court holds that the nature
of a petition for annulment of judgment is in personam, on the
basis of the following reasons:
First, a petition for annulment of judgment is an original action,
which is separate, distinct and independent of the case where
the judgment sought to be annulled is rendered. Thus,
regardless of the nature of the original action in the decision
sought to be annulled, be it in personam, in rem or quasi in rein,
the respondent should be duly notified of the petition seeking
to annul the court's decision over which the respondent has a
direct or indirect interest.
Second, a petition for annulment of judgment and the court's
subsequent decision thereon will affect the parties alone. Any
judgment therein will eventually bind only the parties properly
impleaded. In this case, had the RTC granted the respondent's
petition, the MeTC's July 26 2006 judgment would have been
declared a nullity. This would have resulted to the following
consequences: as to the respondent, he would no longer be
required to pay the rentals and vacate the subject property; and,
as to the petitioner, she would be deprived of her right to
demand the rentals and to legally eject the respondent. Clearly,
only the parties' interests would have been affected.
SUMMARY: CHARACTERISTICS OF PETITION FOR ANNULMENT OF
JUDGMENT
1. It is an EXTRAORDINARY REMEDY that is equitable in
character and is permitted only in exceptional cases.
2. It is not an appellate remedy but is an ORIGINAL ACTION
that is independent of the case where the judgment to be
annulled was rendered.
3. It is an ACTION IN PERSONAM, which means that
summons must be served upon the respondent unless he
voluntarily submits to the jurisdiction of the court by his
personal appearance in the action.
Sec. 2. Grounds for annulment. The annulment may be based
only on the grounds of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or
could have been availed of, in a motion for new trial or petition
for relief. (n)

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
GROUNDS
Under Section 2, annulment of judgment may be filed on two
grounds: (1) that the judgment was secured through extrinsic fraud;
or (2) that the judgment is void for lack of jurisdiction. For extrinsic
fraud, it is not considered a valid or viable ground for annulment of
judgment if it was availed of, or could have been availed of, in a
motion for new trial or petition for relief.
EXTRINSIC FRAUD
Fraud is regarded as extrinsic when it prevents a party from having
a trial or from presenting his entire case to the court, or where it
operates upon matters pertaining not to the judgment itself but to
the manner in which it is procured (ALARCON versus COURT OF
APPEALS, ET AL., G.R. No. 126802, January 28, 2000).
Extrinsic fraud refers to any fraudulent act of the prevailing party in
the litigation which is committed outside of the trial of the case,
whereby the unsuccessful party has been prevented from
exhibiting fully his case, by fraud or deception practiced on him by
his opponent (PHILIPPINE TOURISM AUTHORITY versus PHILGOLF,
G.R. No. 176628, March 19, 2012).
The overriding consideration when extrinsic fraud is alleged is that
the fraudulent scheme of the prevailing litigant prevented the
petitioner from having his day in court. Extrinsic fraud cannot be
presumed from the recitals alone of the pleading but needs to be
particularized as to the facts constitutive of it (PINAUSUKAN
SEAFOOD HOUSE versus FAR EAST BANK, G.R. No. 159926, January
20, 2014).
COSMIC LUMBER v. COURT OF APPEALS
G.R. No. 114311 ½ November 29, 1996
FACTS: Cosmic Lumber owns a piece of land occupied by some
squatters. To cause the latter's ejectment, the former, through
its general manager, executed a special power of attorney
authorizing Estrada, its attorney-in-fact, to initiate, institute and
file in any court an action for ejectment. Estrada thus filed a case
to recover a portion of this property from its occupants before
the RTC. Subsequently, Estrada entered into a compromise
agreement with the occupants whereby the former sold the
property to the latter for only P26,640.00 computed at P80.00
per square meter. The compromise agreement was approved by
the court and judgment was rendered by the court in
accordance therewith. The judgment became final and
executory but because it was not executed within 5 years from
the date of its finality, it became dormant. The occupants filed a
complaint to revive the judgment. Cosmic Lumber asserts that it
was only when summons in the case to revive the judgment that
it came to know of the compromise agreement. It then filed a
petition to annul the judgment, contending that entering into
the compromise agreement was an ultra vires act on the part of
Estrada.
The Court of Appeals dismissed the action on the premise that
the alleged nullity of the compromise judgment is not a viable
ground for annulment. It essence, the fraud committed in the
case was by Cosmic Lumber's own representative, not by the
adverse party.
ISSUE: Whether the judgment can be annulled.
RULING: The petition to annul the decision of the trial court in
civil case before the CA was proper. Emanating as it did from a
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void compromise agreement, the trial court had no jurisdiction
to render a judgment based thereon.
The highly reprehensible conduct of attorney-in-fact in the civil
case constituted an extrinsic or collateral fraud by reason of
which the judgment rendered thereon should have been struck
down. Not all the legal semantics in the world can becloud the
unassailable fact that petitioner was deceived and betrayed by
its attorney-in-fact. The latter deliberately concealed from
petitioner, her principal, that a compromise agreement had
been forged with the end result that a portion of petitioner's
property was sold literally for a song, for P26,000. Thus
completely kept unaware of its agent's artifice, petitioner was
not accorded even a fighting chance to repudiate the settlement
so much so that the judgment based thereon became final and
executory.
For sure, the CA restricted the concept of fraudulent acts within
too narrow limits. Fraud may assume different shapes and be
committed in as many different ways and here lies the danger
of attempting to define fraud. For man in his ingenuity and
fertile imagination will always contrive new schemes to fool the
unwary.
PHILIPPINE TOURISM AUTHORITY v. PHILGOLF
G.R. No. 176628 ½ March 19, 2012
FACTS: Petitioner Philippine Tourism Authority (PTA entered
into a contract with Atlantic Erectors, Inc. (AEI) for the
construction of the Intramuros Golf Course Expansion Projects
(PAR 60-66) for a contract price of P57,954,647.94. The civil
works of the project commenced. AEI entered into a sub-
contract agreement with PHILGOLF to build the golf course
amounting to P27,000,000.00.
PHILGOLF filed a collection suit against PTA amounting to
P11,820,550.53, plus interest, for the construction of the golf
course. PTA filed two motions for extension of time to file an
answer which the RTC both granted. Despite the RTC's liberality,
PTA still failed to answer the complaint. Hence, the RTC
rendered a judgment of default. The PTA seasonably appealed
the case to the CA. But before the appeal of PTA could be
perfected, PHILGOLF already filed a motion for execution
pending appeal with the RTC. The RTC granted the motion and a
writ of execution pending appeal was issued against PTA. A
notice of garnishment was issued against PTA's bank account at
the Land Bank of the Philippines, NAIA-BOC Branch to fully
satisfy the judgment. PTA filed a petition for certiorari with the
CA, imputing grave abuse of discretion on the part of the RTC for
granting the motion for execution pending appeal. The CA ruled
in favor of PTA and set aside the order granting the motion for
execution pending appeal. PTA withdrew its appeal of the RTC
decision and, instead, filed a petition for annulment of judgment
under Rule 47 of the Rules of Court. The petition for annulment
of judgment was premised on the argument that the gross
negligence of PTA's counsel prevented the presentation of
evidence before the RTC. The CA dismissed the petition for
annulment of judgment for lack of merit.
ISSUE: Whether annulment of judgment under Rule 47 is a
proper remedy.
RULING: NO. The Rules of Court specifically provides for
deadlines in actions before the court to ensure an orderly

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
disposition of cases. PTA cannot escape these legal technicalities
by simply invoking the negligence of its counsel. The rule is that
"a client is bound by the acts, even mistakes, of his counsel in
the realm of procedural technique, and unless such acts involve
gross negligence that the claiming party can prove, the acts of a
counsel bind the client as if it had been the latter's acts." It is not
disputed that the summons together with a copy of the
complaint was personally served upon, and received by PTA
through its Corporate Legal Services Department, on October
10, 2003. Thus, in failing to submit a responsive pleading within
the required time despite sufficient notice, the RTC was correct
in declaring PTA in default.
Extrinsic fraud refers to any fraudulent act of the prevailing party
in the litigation which is committed outside of the trial of the
case, whereby the unsuccessful party has been prevented from
exhibiting fully his case, by fraud or deception practiced on him
by his opponent. Under the doctrine of this cited case, we do not
see the acts of PTA's counsel to be constitutive of extrinsic fraud.
The records reveal that the judgment of default was sent via
registered mail to PTA's counsel. However, PTA never availed of
the remedy of a motion to lift the order of default.
Since the failure of PTA to present its evidence was not a product
of any fraudulent acts committed outside trial, the RTC did not
err in declaring PTA in default. PTA's appropriate remedy was
only to appeal the RTC decision. Annulment of judgment under
Rule 47 of the Rules of Court is a recourse equitable in character
and allowed only in exceptional cases where the ordinary
remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault
of petitioner. In this case, appeal was an available remedy. The
Court is actually at a loss why PTA had withdrawn a properly filed
appeal and substituted it with another petition, when PTA could
have merely raised the same issues through an ordinary appeal.
LACK OF JURISDICTION
Lack of jurisdiction as a ground for annulment of judgment refers
to either: (1) lack of jurisdiction over the person of the defending
party, or (2) lack of jurisdiction over the subject matter of the claim.
In case of absence, or lack, of jurisdiction, a court should not take
cognizance of the case. Thus, the prevailing rule is that where there
is want of jurisdiction over a subject matter, the judgment is
rendered null and void. A void judgment is in legal effect no
judgment, by which no rights are divested, from which no right can
be obtained, which neither binds nor bars any one, and under
which all acts performed and all claims flowing out are void. It is not
a decision in contemplation of law and, hence, it can never become
executory (SEBASTIAN versus SPOUSES CRUZ, G.R. No. 220940,
March 20, 2017).
SEBASTIAN v. SPOUSES CRUZ
G.R. No. 220940 ½ March 20, 2017
FACTS: Nelson Cruz is the registered owner of a parcel of land
covered by OCT No. P415666. Nelson, through his father and
attorney-in-fact, Lamberto, sold the subject lot in favor of
Sebastian, as evidenced by a Deed of Absolute Sale. Upon
Sebastian's payment of the purchase price, Lamberto then
surrendered to her the possession of the subject land, and OCT
No. P-41566. However, upon her presentment of the requisite
documents to the Register of Deeds, the latter directed her to
secure a Special Power of Attorney executed by Cruz authorizing
97
Lamberto to sell the subject land to her. Accordingly, Sebastian
requested the execution of such document from Lamberto, who
promised to do so, but failed to comply.
Sebastian latter found out through an inquiry with the Register
of Deeds that Nelson executed an Affidavit of Loss dated
September 23, 2013 attesting to the loss of owner's duplicate
copy of OCT No. P- 41566, that a petition for the issuance of a
second owner's copy of OCT No. P-41566 was filed by Nelson
and his spouse and that the RTC promulgated a Decision
granting said petition and, consequently, ordered the issuance
of a new owner's duplicate copy of OCT No. P-41566 in favor of
the Cruz spouses.
Sebastian filed a petition for annulment of judgment before the
CA on the ground of lack of jurisdiction. Essentially, she
contended that the RTC had no jurisdiction to take cognizance
of LRC Case No. 421 as the duplicate copy of OCT No. P-41566 -
which was declared to have no further force in effect - was never
lost, and in fact, is in her possession all along. The CA did not give
due course to Sebastian's petition and, consequently, dismissed
the same outright. It held that the compliance by Cruz with the
jurisdictional requirements of publication and notice of hearing
clothed the RTC with jurisdiction to take cognizance over the
action in rem, and constituted a constructive notice to the whole
world of its pendency. As such, personal notice to Sebastian of
the action was no longer necessary.
ISSUE: Was the CA correct in denying due course to Sebastian's
petition for annulment of judgment?
RULING: NO. The CA erred in denying due course to Sebastian's
petition for annulment of judgment and, resultantly, in
dismissing the same outright. The fact of loss or destruction of
the owner's duplicate certificate of title is crucial in clothing the
RTC with jurisdiction over the judicial reconstitution
proceedings. In Spouses Paulino v. CA, the Court reiterated the
rule that when the owner's duplicate certificate of title was not
actually lost or destroyed, but is in fact in the possession of
another person, the reconstituted title is void because the court
that rendered the order of reconstitution had no jurisdiction
over the subject matter of the case, viz.:
In reconstitution proceedings, the Court has repeatedly
ruled that before jurisdiction over the case can be validly
acquired, it is a condition sine qua non that the certificate
of title has not been issued to another person. If a
certificate of title has not been lost but is in fact in the
possession of another person, the reconstituted title is void
and the court rendering the decision has not acquired
jurisdiction over the petition for issuance of new title. The
courts simply have no jurisdiction over petitions by (such)
third parties for reconstitution of allegedly lost or destroyed
titles over lands that are already covered by duly issued
subsisting titles in the names of their duly registered
owners. The existence of a prior title ipso facto nullifies the
reconstitution proceedings. The proper recourse is to assail
directly in a proceeding before the regional trial court the
validity of the Torrens title already issued to the other
person.
In this case, Sebastian's petition for annulment of judgment
before the CA clearly alleged that, contrary to the claim of
Spouses Cruz in LRC Case No. 421, the owner's duplicate copy of

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
OCT No. P41566 was not really lost, as the same was
surrendered to her by Lamberto, Nelson's father and attorney-
in fact, and was in her possession all along. Should such
allegation be proven following the conduct of further
proceedings, then there would be no other conclusion than that
the RTC had no jurisdiction over the subject matter of LRC Case
No. 421. As a consequence, the Decision dated March 27, 2014
of the RTC in the said case would then be annulled on the ground
of lack of jurisdiction.
“GRAVE ABUSE OF DISCRETION" IS NOT EQUIVALENT TO LACK OF
JURISDICTION FOR THE PURPOSE OF RULE 47
ANTONINO vs. REGISTER OF DEEDS
G.R. No. 185663 | June 20, 2012
FACTS: Petitioner Antonino had been leasing a residential
property located at Makati City and owned by private
respondent Tan Tian Su. Under the lease contract, Antonino was
accorded with the right of first refusal in the event Su would
decide to sell the subject property. The parties executed a
document denominated as Undertaking Agreement where Su
agreed to sell to Antonino the subject property. However, in
view of a disagreement as to who between them would shoulder
the payment of the capital gains tax, the sale did not proceed as
intended. On July 9, 2004, Antonino filed a complaint against Su
with the Regional Trial Court of Makati for the reimbursement
of the cost of repairs on the subject property and payment of
damages. Later that same day, Antonino filed an amended
complaint to enforce the Undertaking Agreement and compel
Su to sell to her the subject property.
In an Order dated December 8, 2004, the RTC dismissed
Antonino's complaint on the grounds of improper venue and
non-payment of the appropriate docket fees. According to the
RTC, Antonino's complaint is one for specific performance,
damages and sum of money, which are personal actions that
should have been filed in the court of the place where any of the
parties resides. Antonino and Su reside in Muntinlupa and
Manila, respectively, thus Makati City is not the proper venue.
The RTC also ruled that it did not acquire jurisdiction over
Antonino's complaint in view of her failure to pay the correct
amount of docket fees.
On January 3, 2005, Antonino filed a Motion for
Reconsideration, claiming that her complaint is a real action and
the location of the subject property is determinative of its
venue. This was denied by the RTC in an Order dated January 6,
2005, holding that there was non-compliance with the rule on
motions. Antonino filed a Motion for Reconsideration dated
January 21, 2005, which the RTC denied.
Antonino filed with the CA a petition for annulment of judgment.
Antonino prayed for the nullification of the aforementioned
Orders and Joint Resolution by the RTC. According to Antonino,
the RTC committed grave abuse of discretion amounting to lack
of jurisdiction when it ruled that her action for the enforcement
of the Undertaking Agreement is personal and when it deprived
her of an opportunity to pay the correct amount of docket fees.
The RTC's grave abuse of discretion, Antonino posited, was
likewise exhibited by its strict application of the rules on motions
and summary denial of her motion for reconsideration.
ISSUE: Is the remedy of annulment proper on the ground of
grave abuse of discretion? NO.
98
RULING: First, Antonino cannot pursue the annulment of the
various issuances of the RTC in order to avoid the adverse
consequences of their becoming final and executory because of
her neglect in utilizing the ordinary remedies available. Antonino
did not proffer any explanation for her failure to appeal the
RTC's Orders.
Secondly, a petition for annulment of judgment can only be
based on "extrinsic fraud" and "lack of jurisdiction" and cannot
prosper on the basis of "grave abuse of discretion." "Lack of
jurisdiction" as a ground for the annulment of judgments
pertains to lack of jurisdiction over the person of the defending
party or over the subject matter of the claim. It does not
contemplate "grave abuse of discretion" considering that
"jurisdiction" is different from the exercise thereof.
THIRD GROUND BASED ON JURISPRUDENCE – LACK OF DUE
PROCESS
While under Section 2, Rule 47 of the Rules of Court a Petition for
Annulment of Judgment may be based only on the grounds of
extrinsic fraud and lack of jurisdiction, jurisprudence recognizes
lack of due process as additional ground to annul a judgment.
DIONA vs. BALANGUE
G.R. No. 173559 | January 7, 2013
FACTS: Respondents Balangue, et al. obtained a loan from
Leticia Diona which was secured by a Real Estate Mortgage.
When the debt became due, respondents failed to pay and thus,
Diona filed with the RTC a Complaint praying that respondents
be ordered to pay the principal obligation with interest at the
rate of 12% per annum. The RTC ruled in Diona's favor and
ordered the respondents, among others, to pay the principal
obligation plus interest rate of 5% per month. Respondents filed
with the CA a Petition for Annulment of Judgment contending
that the portion of the RTC Decision granting petitioner 5%
monthly interest rate is in gross violation of Section 3(d) of Rule
9 of the Rules of Court and of their right to due process as the
loan did not carry any interest. The CA ruled in favor of the
respondents and concluded that the awarded rate of interest is
void for being in excess of the relief sought in the Complaint.
Diona argues that the remedy of annulment of judgment, based
on extrinsic fraud or lack of jurisdiction, is improper since the
allegations of the respondents do not spell out any of such
grounds.
ISSUE: Is the remedy of annulment of judgment proper? YES.
HELD: While under Section 2, Rule 47 of the Rules of Court a
Petition for Annulment of Judgment may be based only on the
grounds of extrinsic fraud and lack of jurisdiction, jurisprudence
recognizes lack of due process as additional ground to annul a
judgment. A final and executory judgment may still be set aside
if, upon mere inspection thereof, its patent nullity can be shown
for having been issued without jurisdiction or for lack of due
process of law.
Furthermore, it is settled that courts cannot grant a relief not
prayed for in the pleadings or in excess of what is being sought
by the party. They cannot also grant a relief without first
ascertaining the evidence presented in support thereof. Due
process considerations require that judgments must conform to
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

and be supported by the pleadings and evidence presented in As to the type The petition assails Certiorari is
court. of judgment only final judgments or available against
or orders that orders. both final and
In the case at bench, the grant of 5% monthly interest is way can be interlocutory
beyond the 12% per annum interest sought in the Complaint and assailed orders.
smacks of violation of due process. It is not supported both by
the allegations in the pleadings and the evidence on record. The It is available in the It is available if there
Real Estate Mortgage executed by the parties does not include proper cases for which is no appeal, or any
any provision on interest and the Complaint before the RTC the ordinary remedies plain, speedy, and
As to the
includes the interest at the rate of 12% per annum. Clearly, the of new trial, appeal, adequate remedy in
extraordinary
RTC's award of 5% monthly interest or 60% per annum lacks petition for relief or the ordinary course
nature of the
basis and disregards due process. other appropriate of law.
remedy
remedies are no longer
ANNULMENT OF JUDGMENT VERSUS CERTIORARI available through no
ANNULMENT OF CERTIORARI UNDER fault of the petitioner.
JUDGMENT RULE 65 It is not enough that Grave abuse of
As to nature Both remedies are considered original, not there is an abuse of discretion
of the action appellate, actions. jurisdictional amounting to lack or
As to Both remedies are available even in cases discretion. It must be excess of
As to nature
availability where the judgment to be assailed has already shown that the court jurisdiction would
of lack of
where attained finality. should not have taken be enough to
jurisdiction as
judgment has cognizance of the case sanction invocation
a ground
attained because the law does of certiorari as a
finality not confer it with remedy.
As to the Both are considered extraordinary remedies. jurisdiction over the
nature of the subject matter.
remedy Annulment may set Certiorari may
Annulment can be Certiorari is limited aside judgments of correct errors of
As to
based on extrinsic to grounds of lack of trial courts only. trial courts and
respondents
fraud, lack of jurisdiction, excess quasi-judicial
As to grounds jurisdiction and lack of of jurisdiction and bodies.
for filing due process. grave abuse of
discretion ANNULMENT OF JUDGMENT VERSUS RELIEF FROM JUDGMENT
amounting to the ANNULMENT OF RELIEF FROM
same. JUDGMENT JUDGMENT
If based on extrinsic The petition shall be As to nature It is an original It is an original action
fraud, the action must filed not later than of the action action filed before filed before the same
be filed within 4 years 60 days from notice and the court a higher court. court that rendered the
from its of the judgment, before the judgment from which
discovery; and if based order or resolution. remedy is relief is sought.
on lack of jurisdiction, In case a motion for filed
As to period
before it is barred by reconsideration or Annulment can be The petition can be
for filing
laches or estoppel. new trial is timely based on extrinsic based on extrinsic fraud
filed, the 60 day As to grounds fraud, lack of but can also be based on
period shall be for filing jurisdiction and accident,
counted from notice lack of due mistake and excusable
of the denial of said process. negligence.
motion. If based on The petition must be
The Regional Trial The Regional Trial extrinsic fraud, the filed within 60 days after
Court has exclusive Court, Court of action must be the petitioner learns of
original jurisdiction Appeals, and the filed within 4 years the judgment to be set
over an action to annul Supreme Court have As to period from its discovery; aside, and not more than
a judgment of a concurrent original for filing and if based on 6 months after such
Municipal Trial Court. jurisdiction over lack of jurisdiction, judgment was entered.
As to court
The Court of Appeals petitions for before it is barred
with
has exclusive original certiorari. by laches or
jurisdiction
jurisdiction over an estoppel.
action to annul a Extrinsic fraud Extrinsic fraud can be
As to
judgment of a Regional shall not be a valid raised as a ground for
limitation on
Trial Court. ground if it was relief from judgment
raising
availed of, or regardless of whether it
extrinsic
could have been was raised or could have
fraud as a
availed of, in a been raised as a ground
ground
motion for new for new trial.
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trial or petition for Sec. 3. Period for filing action. If based on extrinsic fraud, the
relief. action must be filed within four (4) years from its discovery; and
As to the Annulment can be Relief from judgment if based on lack of jurisdiction, before it is barred by laches or
courts in had only before can be obtained only in estoppel. (n)
which the the RTC or the CA. the MTC or the RTC.
remedies are PERIOD FOR FILING
available The applicable period for filing the petition for annulment of
Annulment is A petition for relief, judgment depends upon the ground. If based on extrinsic fraud, the
neither an being filed in the same petition must be filed within four years from its discovery and if
As to whether appellate recourse court which rendered based on lack of jurisdiction, before it is barred by laches or
the remedy is nor a continuation the judgment, can be estoppel (HEIRS OF CULLADO versus GUTIERREZ, G.R. No. 212938,
a progression or progression of treated as a progression July 30, 2019). Thus, if the ground relied upon is lack of jurisdiction,
of the same the same case, as of the same case but is an action to annul a judgment is, in effect, imprescriptible.
case being in fact the case it not an appellate
assailed seeks to annul is recourse.
Sec. 4. Filing and contents of petition. The action shall be
already final and
commenced by filing a verified petition alleging therein with
executory.
particularity the facts and the law relied upon for annulment, as
For purposes of For purposes of applying
well as those supporting the petitioner's good and substantial
the application of Rule 38, mistake (or
cause of action or defense, as the case may be.
Rule 47, is that gross negligence) can be
mistake and gross of such nature as to
The petition shall be filed in seven (7) clearly legible copies,
negligence cannot cause substantial
together with sufficient copies corresponding to the number of
be equated to the injustice to one of the
respondents. A certified true copy of the judgment or final order
extrinsic fraud parties. It may be so
As to or resolution shall be attached to the original copy of the
that Rule 47 palpable that it borders
treatment of petition intended for the court and indicated as such by the
requires to be the on extrinsic fraud (CITY
mistake and petitioner.
ground for an OF DAGUPAN versus
gross
annulment of MARAMBA, G.R. No.
negligence The petitioner shall also submit together with the petition
judgment 174411, July 02, 2014).
affidavits of witnesses or documents supporting the cause of
(PINAUSUKAN
action or defense and a sworn certification that he has not
SEAFOOD HOUSE
theretofore commenced any other action involving the same
versus FAR EAST
issues in the Supreme Court, the Court of Appeals or different
BANK, G.R. No.
divisions thereof, or any other tribunal or agency; if there is such
159926,
other action or proceeding, he must state the status of the
January 20, 2014).
same, and if he should thereafter learn that a similar action or
A judgment of If granted, the court shall proceeding has been filed or is pending before the Supreme
annulment shall set aside the judgment, Court, the Court of Appeals, or different divisions thereof, or any
set aside the etc. complained of upon other tribunal or agency, he undertakes to promptly inform the
questioned such terms as may be
aforesaid courts and other tribunal or agency thereof within five
judgment, etc. just. Thereafter the case
(5) days therefrom.(n)
and render the shall stand as if such
same null and judgment, etc. had never
STATUTORY REQUIREMENTS
void, without been rendered, issued,
prejudice to the or taken. The court shall BACLARAN MARKETING CORPORATION vs. NIEVA
original action then proceed to hear G.R. No. 189881 | April 19, 2017
being refiled in the and determine the case
proper court. as if a timely motion for a Given the extraordinary nature and the objective of the remedy
of annulment of judgment or final order," a petitioner must
new trial had been
As to effect of However, where granted by it. comply with the statutory requirements as set forth under Rule
grant the judgment or 47. These are:
final order or
(1) The remedy is available only when the petitioner can
resolution is set
no longer resort to the ordinary remedies of new trial,
aside on the
appeal, petition for relief or other appropriate
ground of extrinsic
fraud, the court remedies through no fault of the petitioner;
may on motion (2) The grounds for the action of annulment of judgment
order the trial are limited to either extrinsic fraud or lack of
jurisdiction;
court to try the
case as if a timely (3) The action must be filed within four years from the
motion for new discovery of the extrinsic fraud; and if based on lack of
jurisdiction, must be brought before it is barred by
trial had been
granted therein. laches or estoppel; and
(4) The petition must be verified, and should allege with
particularity the facts and the law relied upon for
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annulment, as well as those supporting the
petitioner's good and substantial cause of action or
defense, as the case may be.
In addition to the foregoing, the last paragraph of Section 4 also
requires a certification against forum-shopping. This
requirement is proper inasmuch as the action under Rule 47 is
an original action and the petition thus filed is, in a sense, an
initiatory pleading.
AFFIDAVITS
The affidavits of witnesses or documents supporting the cause of
action or defense must be attached to the petition. This
requirement is similar to the ones in Rule 37, Section 2 on new trial
and Rule 38, Section 3 on petition for relief. The requirement of
"alleging therein with particularity the facts and the law relied upon
for annulment, as well as those supporting the petitioner's good
and substantial cause of action or defense, as the case may be"
refers to an affidavit of merits.
FAILURE TO INCLUDE AFFIDAVITS IS FATAL
PINAUSUKAN SEAFOOD HOUSE vs. FAR EAST BANK
G.R. No. 159926 | January 20, 2014
Pinausukan posits that the requirement for attaching the
affidavits of witnesses to the petition for annulment should be
relaxed; that even if Roxanne had executed the required
affidavit as a witness on the extrinsic fraud, she would only
repeat therein the allegations already in the petition, thereby
duplicating her allegations under her oath XXX.
petition has substantial merit. In that regard, however, the
requirements are separate from each other, for only by the
affidavits of the witnesses who had competence about the
circumstances constituting the extrinsic fraud can the petitioner
detail the extrinsic fraud being relied upon as the ground for its
petition for annulment. This is because extrinsic fraud cannot be
presumed from the recitals alone of the pleading but needs to
be particularized as to the facts constitutive of it. The distinction
between the verification and the affidavits is made more
pronounced when an issue is based on facts not appearing of
record. In that instance, the issue may be heard on affidavits or
depositions presented by the respective parties, subject to the
court directing that the matter be heard wholly or partly on oral
testimony or depositions.
The substantive defect related to the supposed neglect of Atty.
Villaflor to keep track of the case, and to his failure to apprise
Pinausukan of the developments in the case, which the CA did
not accept as constituting extrinsic fraud, because – Based solely
on these allegations, we do not see any basis to give due course
to the petition as these allegations do not speak of the extrinsic
fraud contemplated by Rule 47. Notably, the petition's own
language states that what is involved in this case is mistake and
gross negligence of petitioner's own counsel. The petition even
suggests that the negligence of counsel may constitute
professional misconduct (but this is a matter for lawyer and
client to resolve). What is certain, for purposes of the application
of Rule 47, is that mistake and gross negligence cannot be
equated to the extrinsic fraud that Rule 47 requires to be the
ground for an annulment of judgment.

The need for particularity cannot be dispensed with because

averring the circumstances constituting either fraud or mistake Sec. 5. Action by the court. Should the court find no substantial
with particularity is a universal requirement in the rules of merit in the petition, the same may be dismissed outright with
pleading. The purpose of these requirements of the sworn specific reasons for such dismissal. Should prima facie merit be
verification and the particularization of the allegations of the found in the petition, the same shall be given due course and
extrinsic fraud in the petition, of the submission of the certified summons shall be served on the respondent. (n)
true copy of the judgment or final order or resolution, and of the
attachment of the affidavits of witnesses and documents Sec. 6. Procedure. The procedure in ordinary civil cases shall be
supporting the cause of action or defense is to forthwith bring observed. Should trial be necessary, the reception of the
all the relevant facts to the CA's cognizance in order to enable evidence may be referred to a member of the court or a judge of
the CA to determine whether or not the petition has substantial a Regional Trial Court. (n)
merit. Should it find prima facie merit in the petition, the CA
shall give the petition due course and direct the service of
ACTION ON THE PETITION
summons on the respondent; otherwise, the CA has the
Under Section 5, Rule 47 of the Rules of Court, it is incumbent that
discretion to outrightly dismiss the petition for annulment. A
when a court finds no substantial merit in a petition for annulment
review of the dismissal by the CA readily reveals that
of judgment, it may dismiss the petition outright but the "specific
Pinausukan's petition for annulment suffered from procedural
reasons for such dismissal" shall be clearly set out (ALVAREZ versus
and substantive defects.
FORMER 12TH DIVISION, COURT OF APPEALS, G.R. No. 192472, June
3, 2019).
The procedural defect consisted in Pinausukan's disregard of the
requirement mentioned earlier consisting in its failure to submit
It has been held that the Court of Appeals, or the Regional Trial
together with the petition the affidavits of witnesses or
Court for that matter, cannot casually dismiss a petition for
documents supporting the cause of action. It is true that the
annulment based on a blanket invocation of the presumption of
petition, which narrated the facts relied upon, was verified
regularity in the performance of official duties, considering that, as
under oath by Roxanne. However, the submission of the
case law holds, where the official act is irregular on its face, the
affidavits of witnesses together with the petition was not
presumption cannot arise (CARREON versus AGUILLON, G.R. No.
dispensable for that reason.
240108, June 29, 2020).
Pinausukan's failure to include the affidavits of witnesses was
Pursuant to Sections 5 and 6 of Rule 47, should prima facie merit be
fatal to its petition for annulment. Worthy to reiterate is that the
found in the petition, the court is required to give due course to it,
objective of the requirements of verification and submission of
cause the service of summons, and conduct trial to determine its
the affidavits of witnesses is to bring all the relevant facts that
merits. Should trial be necessary, the reception of the evidence may
will enable the CA to immediately determine whether or not the
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

be referred to a member of the court or a judge of a Regional Trial Section 8. Suspension of prescriptive period. - The prescriptive
Court. period for the refiling of the aforesaid original action shall be
deemed suspended from the filing of such original action until
Sec. 7. Effect of judgment. A judgment of annulment shall set the finality of the judgment of annulment. However, the
aside the questioned judgment or final order or resolution and prescriptive period shall not be suspended where the extrinsic
render the same null and void, without prejudice to the original fraud is attributable to the plaintiff in the original action.
action being refiled in the proper court. However, where the
judgment or final order or resolution is set aside on the ground SUSPENSION OF PRESCRIPTIVE PERIOD
of extrinsic fraud, the court may on motion order the trial court As a general rule, while the action for annulment is pending, the
to try the case as if a timely motion for new trial had been prescriptive period for the refiling of the original action as
granted therein. (n) mentioned in Section 7 is suspended until the finality of the
judgment of annulment. By way of exception, the prescriptive
EFFECT OF JUDGMENT OF ANNULMENT period shall not be suspended where the extrinsic fraud is
Where the judgment is set aside on the ground of extrinsic fraud, attributable to the plaintiff in the original action. This exception, as
the court may on motion order the trial court to try the case as if a provided in the last sentence of Section 8, is fair and reasonable.
timely motion for new trial had been granted therein. The plaintiff should not benefit from the suspension of the
prescriptive period if he is the party guilty of extrinsic fraud.
Where the judgment is set aside on the ground of lack of
jurisdiction, the court shall set aside the questioned judgment and Sec. 9. Relief available. The judgment of annulment may
render the same null and void, without prejudice to the original include the award of damages, attorney's fees and other relief.
action being refiled in the proper court. If the questioned judgment or final order or resolution had
already been executed, the court may issue such orders of
DISTINCTIONS restitution or other relief as justice and equity may warrant
EXTRINSIC FRAUD LACK OF JURISDICTION under the circumstances. (n)
Both are grounds for the filing of a petition for annulment of
judgment.
RELIEF AVAILABLE TO PETITIONER
If the petition under Rule 47 If the petition under Rule 47 is Section 9 provides the relief available to the petitioner in an action
is based on extrinsic fraud, it based on lack of jurisdiction, it to annul judgment. The judgment of annulment may include the
must be filed within four must be filed before it is barred award of damages, attorney's fees and other relief.
years from its discovery. by laches or estoppel.
If a party had already availed For lack of jurisdiction, there is The second part of the provision also governs the situation where
himself of motion for new no barring effect if the ground the judgment that is annulled had already been executed. In such a
trial under Rule 37 or a had been raised previously. For case, the court may issue orders of restitution or other relief as
petition for relief from as long as the petitioner is justice and equity may warrant. The principle here is similar to Rule
judgment under neither deemed guilty of laches 39, Section 5 which speaks of cases of judgments executed pending
Rule 38, raising the issue of nor placed in estoppel, nothing appeal and the appealed judgment is thereafter reversed. Where
extrinsic fraud with the trial prevents him from seeking the executed judgment is reversed totally or partially, or annulled,
court, he is effectively barred annulment based on this on appeal or otherwise, the trial court may, on motion, issue such
from raising the same issue in ground. Lack of jurisdiction orders of restitution or reparation of damages as equity and justice
a petition for annulment of over the subject matter can be may warrant under the circumstances.
judgment. raised at any time.
Where the judgment is set Where the judgment is set
aside on the ground of aside on the ground of lack of Sec. 10. Annulment of judgments or final orders of Municipal
extrinsic fraud, the court may jurisdiction, the court shall set Trial Courts. An action to annul a judgment or final order of a
on motion order the trial aside the questioned judgment Municipal Trial Court shall be filed in the Regional Trial Court
court to try the case as if a and render the same null and having jurisdiction over the former. It shall be treated as an
timely motion for new trial void, without prejudice to the ordinary civil action and Sections 2, 3, 4, 7, 8 and 9 of this Rule
had been granted therein. original action being refiled in shall be applicable thereto. (n)
the proper court.
Extrinsic fraud is also a Lack of jurisdiction is not a ANNULMENT OF JUDGMENT OF THE MTC
ground for a motion for new ground for a motion for new As previously noted, annulment of judgment of the MTCs properly
trial. trial because this remedy fall under the rule on jurisdiction of the RTC, it being an action
presupposes that the court had which does not belong to the jurisdiction of any other courts
jurisdiction. (Section 19[6], BP 129). Furthermore, annulment of judgment is
Extrinsic fraud is not a ground Lack of jurisdiction over the also an action the subject matter of which is incapable of pecuniary
for a motion to dismiss. subject matter is a valid ground estimation (Section 19[1], BP 129).
Conversely, fraud, in general, for a motion to dismiss under
can be raised as an Rule 15, Section 12. Lack of Of particular note is how the action for annulment of judgment of
affirmative defense in the jurisdiction over the person of the MTC is treated. The provision is clear that it shall be treated as
answer. the defendant, on the other an ordinary civil action. While Sections 2, 3, 4, 7, 8 and 9 of Rule 47
hand, is an affirmative defense are made specifically applicable to annulment before the RTC
under Rule 8, Section 12. treated ordinary civil action, Sections 1 (for obvious reasons), 5 and
6 are not. This means that the RTC is not allowed to dismiss the
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action outright but should issue summons to the defendant and POST JUDGMENT REMEDIES – PART 3 (A)
require him to file and serve his answer. COMPILATION OF COMMENTS AND CASES
(Riano, Iñigo & Espejo)
Furthermore, if there is trial, the court cannot delegate the ORDINARY APPEALS (Rules 40 and 41)
reception of evidence to anyone else, even to the clerk of court. *Compiled and Updated by JZE and LCYE
The requirement in Rule 30, Section 9, that the judge of the court
where the case shall personally receive the evidence to be adduced APPEALS IN GENERAL
by the parties, except in default or ex parte hearings and in any case
where the parties agree in writing, would therefore apply. 1. Appeal is the most commonly applied and procedurally
preferred post-judgment remedy.

Thus, before considering whether to avail of other remedies, the

defeated party should first determine whether appeal is available.
It is noteworthy that the remedies under Rules 47 and 65 cannot be
invoked if appeal is available.

Annulment under Rule 47 would be available only if ordinary

remedies, including appeal, are no longer available. Certiorari
under Rule 65 is available only if there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law. The
existence and availability of the right of appeal proscribes a resort
to certiorari, because one of the requisites for availment of the
latter is precisely that there should be no appeal (DE GUZMAN
versus FILINVEST DEVELOPMENT CORPORATION, G.R. No. 191710,
January 14, 2015).

These examples emphasize that the Rules of Court prefers the

taking of an appeal over other remedies available to a defeated
party.

2. Appeal is not foreclosed by the filing of a motion for new

trial or reconsideration under Rule 37.

In fact, the filing of these motions are, in a way, encouraged by the

Rules and jurisprudence to afford the court a quo ample
opportunity to correct its own errors.

The Rules specifically allows a party aggrieved by a judgment to file

motions for new trial or reconsideration prior to the taking of
appellate recourse. Jurisprudence even places a premium on the
availment of these motions under Rule 37 by giving the movant a
fresh period to file his appeal counted from receipt of the order
denying his motion for new trial or reconsideration (NEYPES versus
COURT OF APPEALS, G.R. No. 141524, September 14, 2005).

3. The remedy of an ordinary appeal, if it exists, is allowed

only once in the course of a case.

Ordinary appeal is available to question a judgment rendered by a

lower court in the exercise of its original jurisdiction. Whether the
higher court sustains or reverses the lower court on appeal, the
remedy of the party aggrieved by the higher court's resolution is no
longer an appeal to the court next higher in rank. His remedy is a
petition for review. There is no ordinary appeal of a case already
decided on appeal.

Thus, a party who lost before the Municipal Trial Court can file an
ordinary appeal to the Regional Trial Court under Rule 40. Whoever
loses between himself and his opponent in the Regional Trial Court
on appeal cannot take a further ordinary appeal to the Court of
Appeals. Instead, the aggrieved party may file with the Court of
Appeals a petition for review under Rule 42. Conversely, a party
who lost before the Regional Trial Court can file an ordinary appeal
to the Court of Appeals under Rule 41. From there, the aggrieved

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
party cannot take a further ordinary appeal to the Supreme Court.
His remedy would be to file a petition for review under Rule 45 on
pure questions of law. Because the Supreme Court is not a trier of
facts, this is the only mode of appeal to the Supreme Court
pursuant to Rule 56[B], Section 3 which provides that:
Section 3. Mode of appeal. - An appeal to the Supreme
Court may be taken only by a petition for review on
certiorari, except in criminal cases where the penalty
imposed is death, reclusion perpetua or life imprisonment.
(n)
Other than appeals brought to it concerning criminal cases where
the penalty imposed is death, reclusion perpetua or life
imprisonment, a Petition for Review on Certiorari under Rule 45 is
the sole procedural vehicle through which appeals may be taken to
the Supreme Court (KUMAR versus PEOPLE, G.R. No 247661, June
15, 2020).
The same rule applies to original actions filed before Court of
Appeals such as a petition for annulment of judgment under Rule
47 or the special civil actions for certiorari, prohibition and
mandamus under Rue 65, among others. The aggrieved party
cannot file an ordinary appeal from an adverse decision of the Court
of Appeals in these cases. His mode of appeal is a petition for review
under Rule 45 before the Supreme Court on pure questions of law.
The remedy of ordinary appeal does not exist in this situation.
Another instance where the remedy of ordinary appeal is not
available is when the law or the Rules declares a case to be
unappealable. An example of this is Section 23 of the Rule of
Procedure for Small Claims Cases which provides that the decision
of a Municipal Trial Court acting as a Small Claims Court shall be
final and unappealable. The party aggrieved by such decision
cannot file an ordinary appeal as this remedy is disallowed.
Nevertheless, the proscription on appeals in small claims cases,
similar to other proceedings where appeal is not an available
remedy, does not preclude the aggrieved party from filing a petition
for certiorari under Rule 65 of the Rules of Court. (A.L. ANG
NETWORK, INC. versus MONDEJAR, G.R. No. 200804, January 22,
2014).
4. Appeal is a privilege and as such it can be lost.
The right to appeal is not a natural right or a part of due process. It
is merely a statutory privilege and may be exercised only in the
manner and in accordance with the provisions of law. As such, the
party seeking relief from the appellate court must strictly comply
with the requirements set forth by the rules. Compliance with the
procedural rules is essential for the speedy disposition of justice
(MELENDRES versus OMBUDSMAN, G.R. No. 194346, June 18,
2018). Failing to do so, the right to appeal is lost (SIBAYAN versus
COSTALES, G.R. No. 191492, July 4, 2016). Being a mere privilege,
the rules on appeal are strictly applied in a way that compliance
thereof is a must for the party seeking to exercise the privilege.
The right to appeal is not a constitutional, natural or inherent right.
It is a statutory privilege of statutory origin and, therefore, available
only if granted or provided by statute. The law may then validly
provide limitations or qualifications thereto (DEPARTMENT EN
BANC OF FOREIGN AFFAIRS versus COMMISSION ON AUDIT, G.R.
No. 194530, July 7, 2020). The one who seeks to avail of this right
must comply with the statute or rules; the requirements for
perfecting an appeal within the reglementary period specified in
104
the law must be strictly followed as they are considered
indispensable interdictions against needless delays. (ALBOR versus
COURT OF APPEALS, G.R. No. 196598, January 17, 2018)
5. The general rule is that the remedy to obtain reversal or
modification of judgment on the merits is appeal (DE
GUZMAN versus FILINVEST DEVELOPMENT
CORPORATION, G.R. No. 191710, January 14, 2015).
This is true even if the error, or one of the errors, ascribed to the
court rendering the judgment is its lack of jurisdiction over the
subject matter, or the exercise of power in excess thereof, or grave
abuse of discretion in the findings of facts or of law set out in the
decision (ASSOCIATION OF INTEGRATED SECURITY FORCE OF
BISLIG-ALU versus COURT OF APPEALS, G.R. No. 140150, August 22,
2005).
6. An appeal is proper only when taken against final
judgments or orders and not against interlocutory ones.
Appeal may be taken only from a judgment or final
order that completely disposes of the case (Section 1,
Rule 41). A mere interlocutory order is not appealable.
A party aggrieved by an interlocutory order must wait
until the judgment in the case is rendered in order for
him to take an appeal, unless he intends to question the
interlocutory order by way of certiorari under Rule 65.
7. There are judgments or orders that are not appealable.
Certain judgments and orders are specifically declared as not
appealable. Thus, under Sec. 1 of Rule 41:
Section 1. Subject of appeal. — An appeal may be taken
from a judgment or final order that completely disposes
of the case, or of a particular matter therein when
declared by these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a petition for relief or any
similar motion seeking relief from judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) 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;
(e) An order of execution;
(f) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints,
while the main case is pending, unless the court allows an
appeal therefrom; and
(g) An order dismissing an action without
prejudice.
In all the above instances where the judgment or final
order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65. (As
amended by A.M. No. 07-7-12-SC, December 1, 2007)

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
8. A party may not change his theory of the case on appeal.
Section 15, Rule 44 of the Rules of Court embodies the settled
principle that, on appeal, the parties are not allowed to change
their theory of the case. The provision states that:
Section 15. Questions that may be raised on appeal.
Whether or not the appellant has filed a motion for new
trial in the court below, he may include in his assignment
of errors any question of law or fact that has been raised in
the court below and which is within the issues framed by
the parties.
An issue not alleged in the complaint nor raised before the trial
court cannot be raised for the first time on appeal as this goes
against the basic rules of fair play, justice, and due process. In the
same way, a defense not pleaded in the answer cannot also be
raised for the first time on appeal (DE LOS SANTOS versus LUCENIO,
G.R. No. 215659, March 19, 2018). As a rule, a party who
deliberately adopts a certain theory upon which the case is tried
and decided by the lower court, will not be permitted to change
theory on appeal, because to permit him to do so would be unfair
to the adverse party. A party cannot, on appeal, change
fundamentally the nature of the issue in the case. (COMMISSIONER
OF INTERNAL REVENUE versus MIGRANT PAGBILAO
CORPORATION, G.R. No. 159593, October 12, 2006).
Points of law, theories, issues and arguments not brought to the
attention of the lower court need not be, and ordinarily will not be,
considered by a reviewing court, as these cannot be raised for the
first time at such late stage (MACTAN ROCK INDUSTRIES, INC.
versus GERMO, G.R. No. 228799, Jan. 10, 2018). Accordingly, courts
of justice have no jurisdiction or power to decide a question not in
issue. Thus, a judgment that goes beyond the issues and purports
to adjudicate something on which the court did not hear the
parties, is not only irregular but also extrajudicial and invalid.
(COMMISSIONER OF INTERNAL REVENUE versus MIGRANT
PAGBILAO CORPORATION, G.R. No. 159593, October 12, 2006).
9. An appellate court cannot pass upon issues not raised in
the lower courts.
This principle is mirrored in Rule 51, Section 8:
Section 8. Questions that may be decided. - No error which
does not affect the jurisdiction over the subject matter or
the validity of the judgment appealed from or the
proceedings therein will be considered unless stated in the
assignment of errors, or closely related to or dependent on
an assigned error and properly argued in the brief, save as
the court may pass upon plain errors and clerical errors.
A reading of the terms of Section 8 of Rule 51 discloses a basic
appellate rule with respect to unassigned errors: The appellate
court shall consider no error unless stated in the assignment of
errors. Accordingly, a question that was never raised in the courts
below cannot be allowed to be raised for the first time on appeal
without offending basic rules of fair play, justice and due process
(BANK OF COMMERCE versus SERRANO, 451 SCRA 484).
WHEN ERRORS NOT RAISED ON APPEAL MAY BE CONSIDERED
The rule that the appellate court shall not consider errors not raised
in the assignment of errors is not an absolute one. Sec. 8 of Rule 51
precludes its absolute application allowing as it does certain errors
105
which even if not assigned may be ruled upon by the appellate
court. Hence, the court may consider an error not raised on appeal
provided the same falls within any of the following categories:
(a) It is an error that affects the jurisdiction over the subject
matter;
(b) It is an error that affects the validity of the judgment
appealed from;
(c) It is an error which affects the proceedings;
(d) It is an error closely related to or dependent on an assigned
error and properly argued in the brief (HEIRS OF
MARCELINO DORONIO versus HEIRS OF FORTUNATO
DORONIO, 541 SCRA 479 [2008]); and
(e) It is a plain and clerical error.
Jurisprudence likewise provides a few more exceptions to the rule.
The Supreme Court is clothed with ample authority to review
matters, even if they are not assigned as errors on appeal, if it finds
that their consideration is necessary in arriving at a just decision of
the case (DUMO versus ESPINAS, G.R. No. 141992, January 25,
2006; COMILANG versus BURCENA, G.R. No. 146853, February 13,
2006; BOSTON BANK OF THE PHILIPPINES versus MANALO, G.R. No.
158149, February 9, 2006).
It has also been held that the Court of Appeals for instance, is
imbued with sufficient authority and discretion to review matters,
not otherwise assigned as errors on appeal, if it finds that the
consideration is necessary in arriving at a complete and just
resolution of the case or to serve the interests of justice or to avoid
dispensing piecemeal justice (ASIAN TERMINALS, INC. versus NLRC,
541 SCRA105 [2007]).
The fact that the appellant's brief did not raise the lack of
jurisdiction of the trial court should not prevent the Court of
Appeals from taking up the issue of lack of jurisdiction (CALIMLIM
versus RAMIREZ, 118 SCRA 399)
10. Payment of appellate docket fee within the prescribed
period is mandatory for the perfection of an appeal.
Time and again, the Court has consistently held that payment of
docket fee within the prescribed period is mandatory for the
perfection of an appeal. Without such payment, the appellate court
does not acquire jurisdiction over the subject matter of the action
and the decision sought to be appealed from becomes final and
executory (Regalado versus Go, G.R. No. 167988, February 6, 2007).
Payment of docket fees and other legal fees within the prescribed
period is both mandatory and jurisdictional, noncompliance with
which is fatal to an appeal. The full amount of the appellate court
docket and other lawful fees must be paid to the clerk of the court
which rendered the judgment or final order appealed from.
Without the payment of docket fees the appeal is not perfected and
the appellate court does not acquire jurisdiction to entertain the
appeal, thereby rendering the decision sought to be appealed final
and executory. Nonpayment of the appellate court docket and
other lawful fees within the reglementary period is a ground for the
dismissal of an appeal (CU-UNJIENG versus COURT OF APPEALS, 479
SCRA 594, January 24, 2006).
Note however that in the exercise of its impartial jurisdiction, the
Court allows a liberal construction of the rules on the manner and
periods for perfecting appeals in order to serve the demands of
substantial justice.
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RULE 40
The established rule is that the payment in full of the docket fees APPEAL FROM MUNICIPAL TRIAL COURTS
within the prescribed period is mandatory. Nevertheless, this rule TO THE REGIONAL TRIAL COURTS
must be qualified, to wit: *Compiled and Updated by: JZE and LCYE

FIRST, the failure to pay appellate court docket fee within the
reglementary period allows only discretionary dismissal, not
automatic dismissal, of the appeal;
SECOND, such power should be used in the exercise of the
Court's sound discretion "in accordance with the tenets of justice
and fair play and with great deal of circumspection considering
all attendant circumstances" (REPUBLIC versus SPOUSES LURIZ,
G.R. No. 158992, January 26, 2007).
Failure to perfect an appeal within the period provided by law
renders the appealed judgment or order final and immutable;
however, this rule is not without exceptions. The Supreme Court
may opt to relax the rules and take cognizance of a petition for
review on certiorari after an improper appeal to the CA “in the
interest of justice and in order to write finis to the controversy" and
considering the important questions involved in the case
(VALDERAMA versus ARGUELLES, G.R. No. 223660, April 2, 2018).
Section 1. Where to appeal. — An appeal from a judgment or
final order of a Municipal Trial Court may be taken to the
Regional Trial jurisdiction over the area to which the former
pertains. The title of the case shall remain as it was in the court
of origin, but the party appealing the case shall be further
referred to as the appellant and the adverse party as the
appellee. (a)
Section 2. When to appeal. — An appeal may be taken within
fifteen (15) days after notice to the appellant of the judgment
or final order appealed from. Where a record on appeal is
required, the appellant shall file a notice of appeal and a record
on appeal within thirty (30) days after notice of the judgment or
final order.
The period of appeal shall be interrupted by a timely motion for
new trial or reconsideration. No motion for extension of time to
file a motion for new trial or reconsideration shall be allowed.
(n)

APPEAL AS PROVIDED UNDER THE JUDICIARY LAW

The basic rule on appeal found in the judiciary law, Section 39, BP
129:

Sec 39. Appeals. - The period for appeal from final orders,
resolutions, awards, judgments or decisions of any court in all
cases shall be fifteen (15) days counted from the notice of the
final order, resolution, award, judgment, or decision appealed
from: Provided, however, That in habeas corpus cases, the
period for appeal shall be forty-eight (48) hours from the notice
of the judgment appealed from.

No record on appeal shall be required to take an appeal. In lieu

thereof, the entire original record shall be transmitted with all
the pages prominently numbered consecutively, together with
an index of the contents thereof.

This section shall not apply in appeals in special proceedings and

in other cases wherein multiple appeals are allowed under
applicable provisions of the Rules of Court.

SUMMARY

TYPE OF CASE MODE OF APPEAL PERIOD

Civil actions, Ordinary appeal which 15 days from
in general is taken by filing a notice of judgment
notice of appeal or final order
Civil actions Ordinary appeal which 30 days from
where can be taken by filing a notice of judgment
multiple notice of appeal and a or final order
appeals are record on appeal
allowed
Special Ordinary appeal which 30 days from
proceedings can be taken by filing a notice of judgment
notice of appeal and a or final order
record on appeal.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Habeas corpus Ordinary appeal which 48 hours from
(also a special is taken by filing a notice of judgment
proceeding) notice of appeal
Section 3. How to appeal. — The appeal is taken by filing a
notice of appeal with the court that rendered the judgment or
final order appealed from. The notice of appeal shall indicate
the parties to the appeal, the judgment or final order or part
thereof appealed from, and state the material dates showing
the timeliness of the appeal.
A record on appeal shall be required only in special proceedings
and in other cases of multiple or separate appeals.
The form and contents of the record on appeal shall be as
provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal where
required, shall be served on the adverse party. (n)
RECORD ON APPEAL AND NOTICE OF APPEAL
An appeal is normally made by filing a notice of appeal with the
court which rendered the judgment or final order appealed from
(Sec. 2[a], Rule 41, Rules of Court). No record on appeal shall be
required except in special proceedings and other cases of multiple
or separate appeals where the law or the Rules of Court so require
(Sec. 2(a), Rule 41, Rules of Court).
In a case where multiple appeals are allowed, a party may appeal
only a particular incident in the case and not all of the matters
involved in the same case. The others which are not made the
subject of the appeal remain to be resolved by the trial court. The
record on appeal is required so the appellate court may have a
record of the proceedings to resolve a separate and distinct issue
raised in the appeal, and since the original records remain with the
trial court it still can resolve the other issues of the case not made
subject of the appeal.
MULTIPLE APPEALS
Jurisprudence recognizes the existence of multiple appeals in a
complaint for expropriation because there are two stages in every
action for expropriation. The first stage is the determination of the
lawful right of the plaintiff to take the property sought to be
expropriated culminating in an order of expropriation (Sec. 4, Rule
67). This order of expropriation may be appealed by any party by
filing a record on appeal (Tan versus Republic, 523 SCRA 203). The
second stage is the determination by the court of the just
compensation for the property sought to be expropriated. A second
and separate appeal may be taken from this order fixing the just
compensation (Tan versus Republic, supra).
Multiple appeals are allowed in special proceedings, in actions for
recovery of property with accounting, in actions for partition of
property with accounting, in the special civil actions of eminent
domain and foreclosure of mortgage. The rationale behind allowing
more than one appeal in the same case is to enable the rest of the
case to proceed in the event that a separate and distinct issue is
resolved by the court and held to be final (ROMAN CATHOLIC
ARCHBISHOP OF MANILA versus COURT OF APPEALS, G.R. No.
111324, July 5, 1996).
107
With particular reference to expropriation, the two different issues
are the right to expropriate and the amount of just compensation.
The rationale behind allowing more than one appeal in the same
case is to enable the rest of the case to proceed in the event that a
separate and distinct issue is resolved by the court and held to be
final (ROMAN CATHOLIC ARCHBISHOP OF MANILA versus COURT OF
APPEALS, G.R. No. 111324, July 5, 1996). However, if the trial court
has fully and finally resolved all issues in the complaint for
expropriation, there is no need to file a record on appeal even in an
expropriation case.
MARINDUQUE MINING AND INDUSTRIAL CORP.
versus COURT OF APPEALS
G.R. No. 161219, October 6, 2008
Facts:
In its decision, the trial court already determined two main
issues, namely, Respondent NAPOCOR's authority to exercise
the power of eminent domain and the just compensation for the
property sought to be expropriated. NAPOCOR initially filed a
motion for reconsideration but after the trial court denied the
motion, NAPOCOR no longer appealed the decision. Then, in a
subsequent Supplemental Decision, the trial court fixed the just
compensation for what it called the "dangling area", which is the
area not subject of the complaint for expropriation but which
the court held should nevertheless also be paid by NAPOCOR
because of consequential damages to the property. NAPOCOR
filed a motion for reconsideration of this Supplemental Decision
and the trial court denied the motion. NAPOCOR then filed a
notice of appeal but did not file a record on appeal. Petitioner
raised issue as to this failure alleging that a record on appeal is
required in an' appeal of a judgment in an expropriation case.
Issue: Whether a record on appeal is still required.
Ruling: Since the trial court fully and finally resolved all
conceivable issues in the complaint for expropriation, there was
no need for NAPOCOR to file a record on appeal. XXX At this
stage, the trial court had no more issues to resolve and there
was no reason why the original records of the case must remain
with the trial court. Therefore, there was no need for NAPOCOR
to file a record on appeal because the original records could
already be sent to the appellate court.
BOTH RECORD ON APPEAL AND NOTICE OF APPEAL, NOT ONLY
RECORD ON APPEAL, REQUIRED
If the party filed a record on appeal without a notice of appeal,
should the appeal be dismissed? No. The appeal will not be
dismissed because the filing of the record on appeal is harder to
comply with than the filing of a notice of appeal. The filing of the
record on appeal is more expressive of the desire of the party to
appeal (PERALTA versus SOLON, 77 Phil. 610).
APPEAL FROM MTC IS BY NOTICE OF APPEAL AS A GENERAL RULE
The MTC is a purely original court. This means that there are no
cases decided by it on appeal because it has no appellate
jurisdiction. Thus, as a general rule, the remedy to question MTC
orders and decisions is an ordinary appeal by way of a notice of
appeal to the RTC.
There are, however, instances under the law and the Rules where
the remedy may vary either because the appeal is taken not by
notice of appeal but by record on appeal or because recourse is not
lodged before the RTC or because the remedy may not at all be an
appeal. They are as follows:

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
1.) Under BP 129, Section 34, MTCs may be assigned by the SC to
hear and determine cadastral or land registration cases covering
lots where there is no controversy or opposition, or contested lots
the where the value of which does not exceed P100,000.00. Their
decisions in these cases shall be appealable in the same manner as
decisions of the RTC.
2.) Under Section 23 of the Rule of Procedure for Small Claims
Cases, the aggrieved party cannot file an ordinary appeal but he
may file a petition for certiorari under Rule 65 (A.L. ANG NETWORK,
INC. versus MONDEJAR, G.R. No. 200804, January 22, 2014).
3.) In a case tried before the MTC, there may be certain judgments
or orders from which no appeal may be taken. For example, an
interlocutory order of the MTC cannot be appealed but the
aggrieved party may file the appropriate special civil action under
Rule 65.
4.) Special proceedings may be tried by a Municipal Trial Court.
Recall that the MTC has exclusive original jurisdiction over probate
proceedings, testate and intestate, where the value of the estate
does not exceed P300,000.00 or P400,000.00, in Metro Manila.
Probate is, of course, a special proceeding. Guardianship
proceedings may be commenced as well in the MTC of the place
where the minor or incompetent person resides (Rule 92). Because
the judgments subject of appeal emanated from special
proceedings, a record on appeal may be required.
5.) A record on appeal is required in an MTC case where multiple
appeals are allowed such as actions for recovery of property with
accounting, for partition of property with accounting and for
foreclosure of mortgage.
a. An action for recovery of property with accounting may of course
be filed before the MTC based on the assessed value;
b. An action for partition of property with accounting may be filed
before the MTC as well by virtue of the Supreme Court's ruling in
HEIRS OF AGARRADO versus AGARRADO, G.R. No. 212413, June 6,
2018;
c. An action for foreclosure of mortgage may also be filed before
the MTC as held in ROLDAN versus SPOUSES BARRIOS, ET AL., G.R.
No. 214803, April 23, 2018.
HEIRS OF AGARRADO versus AGARRADO
G.R. No. 212413, June 6, 2018
An action for partition of real estate is at once an action for the
determination of the co-owners of the subject property and an
action for the eventual conveyance of specific portions thereof
to the co-owners. While this subject matter is incapable of
pecuniary estimation, the proper court which would have
jurisdiction over the action would still depend on the subject
property's assessed values in accordance with Secs. 19(2) and
33(3) of The Judiciary Reorganization Act of 1980, as amended.
XXX
The provisions state that in all civil actions which involve title to,
or possession of, real property, or any interest therein, the RTC
shall exercise exclusive original jurisdiction where the assessed
value of the property exceeds P20,000.00 or, for civil actions in
Metro Manila, where such value exceeds P50,000.00. For those
108
below the foregoing threshold amounts, exclusive jurisdiction
lies with the Metropolitan Trial Courts (MeTC), Municipal Trial
Courts (MTC), or Municipal Circuit Trial Courts (MCTC).
ROLDAN versus SPOUSES BARRIOS, ET AL.
G.R. No. 214803, April 23, 2018
Petitioner cites Russell v. Vestil to show that action for
foreclosure of mortgage is an action incapable of pecuniary
estimation and, therefore, within the jurisdiction of the RTC. We
are not persuaded. In the Russell case, we held:
In Singsong vs. Isabela Sawmill, we had the occasion to rule
that:
[I]n determining whether an action is one the subject matter
of which is not capable of pecuniary estimation, this Court has
adopted the criterion of first ascertaining the nature of the
principal action or remedy sought. If it is primarily for the
recovery of a sum of money, the claim is considered capable of
pecuniary estimation, and whether jurisdiction is in the
municipal courts or in the courts of first instance would depend
on the amount of the claim. However, where the basic 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, this Court has
considered such actions as cases where the subject of the
litigation may not be estimated in terms of money, and are
cognizable exclusively by courts of first instance (now Regional
Trial Courts).
Examples of actions incapable of pecuniary estimation are
those for specific performance, support, or foreclosure of
mortgage or annulment of judgment; also actions questioning
the validity of a mortgage, annulling a deed of sale or
conveyance and to recover the price paid and for rescission,
which is a counterpart of specific performance.
While actions under Sec. 33(3) of B.P. 129 are also incapable
of pecuniary estimation, the law specifically mandates that
they are cognizable by the MTC, METC, or MCTC where the
assessed value of the real property involved does exceed
P20,000.00 in Metro Manila, or P50,000.00, if located
elsewhere. If the value exceeds P20,000.00 or P50,000.00 as
the case may be, it is the Regional Trial Courts which have
jurisdiction under Sec. 19(2). XXX
Clearly, the last paragraph clarified that while civil actions which
involve title to, or possession of, real property, or any interest
therein, are also incapable of pecuniary estimation as it is not
for recovery of money, the court's jurisdiction will be
determined by the assessed value of the property involved.
Section 4. Perfection of appeal; effect thereof. — The
perfection of the appeal and the effect thereof shall be
governed by the provisions of section 9, Rule 41. (n)
By reference:
Rule 41, Section 9. Perfection of appeal; effect thereof. – A
party's appeal by notice of appeal is deemed perfected as to him
upon the filing of the notice of appeal in due time.
A party's appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
 109
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Section 8. Appeal from orders dismissing case without trial;

In appeals by notice of appeal, the court loses jurisdiction over
the case upon the perfection of the appeals filed in due time and
the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only
over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the
appeal of the other parties.
lack of jurisdiction. – If an appeal is taken from an order of the
lower court dismissing the case without a trial on the merits, the
Regional Trial Court may affirm or reverse it, as the case may be.
In case of affirmance and the ground of dismissal is lack of
jurisdiction over the subject matter, the Regional Trial Court, if
it has jurisdiction thereover, shall try the case on the merits as
if the case was originally filed with it. In case of reversal, the case
shall be remanded for further proceedings.

In either case, prior to the transmittal of the original record or
the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with Section 2 of Rule
39, and allow withdrawal of the appeal. (9a)
If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court on
appeal shall not dismiss the case if it has original jurisdiction
thereof, but shall decide the case in accordance with the
preceding section, without prejudice to the admission of
amended pleadings and additional evidence in the interest of
justice. (n)

NOTICE OF APPEAL DOES NOT REQUIRE APPROVAL SUMMARY

The notice of appeal does not require the approval of the court. The
function of the notice of appeal is merely to notify the trial court ACTION OF
ACTION OF
that the appellant was availing of the right to appeal, and not to RTC ON GROUND EFFECT
THE MTC
seek the court's permission that he be allowed to pose an appeal APPEAL
(CRISOLOGO versus DARAY, A.M. No. RTJ-07-2036, August 30, The MTC RTC affirms The RTC, is in The RTC
2006). dismissed the the dismissal. fact the shall try the
case for lack court that case on the
Section 5. Appellate court docket and other lawful fees. — of jurisdiction has merits as if
Within the period for taking an appeal, the appellant shall pay over the jurisdiction the case was
to the clerk of the court which rendered the judgment or final subject over the originally
order appealed from the full amount of the appellate court matter. case that the filed with it.
docket and other lawful fees. Proof of payment thereof shall be MTC
transmitted to the appellate court together with the original dismissed.
record or the record on appeal, as the case may be. (n) RTC reverses The MTC has The case
the dismissal. jurisdiction shall be
Section 6. Duty of the clerk of court. — Within fifteen (15) days over the remanded
from the perfection of the appeal, the clerk of court or the dismissed to the MTC
branch clerk of court of the lower court shall transmit the case. for further
original record or the record on appeal, together with the proceedings.
transcripts and exhibits, which he shall certify as complete, to The MTC tried RTC reverses The RTC, is in The RTC
the proper Regional Trial Court. A copy of his letter of and decided a the MTC. fact, the shall decide
transmittal of the records to the appellate court shall be case over court that the case but
furnished the parties. which it has has not as if it
no jurisdiction was
Section 7. Procedure in the Regional Trial Court. – jurisdiction. over the originally
(a) Upon receipt of the complete record or the record on appeal, case filed with it.
the clerk of court of the Regional Trial Court shall notify the erroneously Rather, it
parties of such fact. tried by the shall
MTC. employ the
(b) Within fifteen (15) days from such notice, it shall be the duty rules
of the appellant to submit a memorandum which shall briefly applicable to
discuss the errors imputed to the lower court, a copy of which appeal. It
shall be furnished by him to the adverse party. Within fifteen may admit
(15) days from receipt of the appellant's memorandum, the amended
appellee may file his memorandum. Failure of the appellant to pleadings
file a memorandum shall be a ground for dismissal of the and
appeal. additional
evidence.
(c) Upon the filing of the memorandum of the appellee, or the
expiration of the period to do so, the case shall be considered WHEN REMAND IS NECESSARY
submitted for decision. The Regional Trial Court shall decide the As Riano correctly points out, a remand of the case to the lower
case on the basis of the entire record of the proceedings had in court is necessary only when there has been no trial on the merits.
the court of original and such memoranda as are filed. (n) A remand would unnecessarily impose on the parties the
concomitant difficulties and expenses of another proceeding where
they would have to present the same evidence again. This clearly

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
runs counter to Section 6, Rule 1 of the Rules of Court, which
mandates liberal construction of the Rules to attain just, speedy
and inexpensive disposition of every action or proceeding
(SPOUSES MORALES versus COURT OF APPEALS, ET AL., G.R. No.
126196, January 28, 1998).
Section 9. Applicability of Rule 41. – The other provisions of
Rule 41 shall apply to appeals provided for herein insofar as they
are not inconsistent with or may serve to supplement the
provisions of this Rule. (n)
110
RULE 41
APPEAL FROM THE REGIONAL TRIAL COURTS
*Compiled and Updated by: JZE and LCYE
Section 1. Subject of appeal. — An appeal may be taken from a
judgment or final order that completely disposes of the case, or
of a particular matter therein when declared by these Rules to
be appealable.
No appeal may be taken from:
(a) An order denying a petition for relief or any similar
motion seeking relief from judgment;
For example, assume that a party filed a petition for relief from
judgment which was dismissed. He then filed a petition for review
on certiorari under Rule 45. In such a case, the petitioner availed of
the wrong remedy. A petition under Rule 45 is a mode of appeal.
Under Section 1(a) of Rule 41 as amended, the denial of a petition
for relief from judgment is subject only to a special civil action
under Rule 65 and not through a petition for review on certiorari
under Rule 45 which is a mode of appeal (TRUST INTERNATIONAL
PAPER CORPORATION versus PELAEZ, G.R. No. 164871, August 22,
2006).
(b) An interlocutory order;
The word interlocutory refers to something intervening between
the commencement and the end of the suit which decides some
point or matter but is not a final decision of the whole controversy.
An interlocutory order merely resolves incidental matters and
leaves something more to be done to resolve the merits of the case.
Stated differently, an interlocutory order is one which leaves
substantial proceedings yet to be had in connection with the
controversy. It does not end the task of the court in adjudicating
the parties' contentions and determining their rights and liabilities
as against each other. In this sense, it is basically provisional in its
application.
For example, the defendant filed a motion to dismiss under Rule 15,
Section 12 which was denied. Note that the denial of a motion to
dismiss does not completely dispose of the case. It is merely
interlocutory and is therefore not appealable.
An interlocutory order is not appealable until after the rendition of
the judgment on the merits for a contrary rule would delay the
administration of justice and unduly burden the courts (SECURITIES
AND EXCHANGE COMMISSION versus CJH DEVELOPMENT
CORPORATION, G.R. No. 210316, November 28, 2016).
Conversely, assume that the defendant filed a motion to dismiss
based on Rule 7, Section 5 for failure to comply with the
requirements on certification against forum shopping (not for
deliberate forum-shopping). If the motion to dismiss is granted, the
order of dismissal is without prejudice to the refiling of the
complaint according to the applicable rule. Take note that such
order, while disposing of the case and therefore not interlocutory,
is also not appealable but this time under Section 1(g) of Rule 41.
The remedy of the plaintiff is to refile his complaint.
The rule mandating that interlocutory orders are not appealable
avoids multiple appeals arising in one civil case. Since the order is
only interlocutory, the court will still continue to try the case and
may, in the course of the proceedings, still realize its own error and
change its order accordingly.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
(c) An order disallowing or dismissing an appeal;
An order disallowing or dismissing an appeal is not appealable but,
pursuant to the last paragraph of Rule 41, Section 1, the aggrieved
party may file an appropriate special civil action as provided in Rule
65. A good example here would be the remedy of mandamus. If an
appeal is filed on time, the court in which the notice of appeal is
filed has the ministerial duty to give due course to it. Certiorari
under Rule 65 is also a viable remedy, as can be seen from the
following case:
UNITED INTERIOR v. DE LUNA
G.R. No. 216788 | November 20, 2017
FACTS: Plaintiff, thru its President filed in the RTC a Complaint
for Specific Performance. It was dismissed on the merits.
Plaintiff filed a motion for reconsideration which was promptly
denied by the RTC. Within the period to appeal, Plaintiff filed a
Notice of Appeal. Defendant filed a motion to expunge the
Notice of Appeal on the ground that it didn't contain a board
resolution allowing the President to file an appeal.
The RTC granted the motion to expunge the notice of appeal.
Plaintiff filed a certiorari petition under Rule 65 to assail the
order granting the motion to expunge. Defendant contends that
the resort to a certiorari action is improper arguing that, being
final, the Order of the RTC is not the proper subject of a petition
for certiorari.
ISSUE: Whether certiorari is the proper remedy
HELD: Certiorari is proper. An order to expunge a notice of
appeal is effectively an order disallowing or dismissing an appeal
that precludes resort to an appeal. Hence, pursuant to Section 1
of Rule 41, its only recourse is via the present certiorari action.
There was grave abuse of discretion amounting to lack or excess
of jurisdiction when the RTC expunged the notice of appeal on
the ground of lack of a board resolution. Under the Rules, an
appeal from cases decided by the RTC in the exercise of its
original jurisdiction shall be made to the Court of Appeals by
filing a notice of appeal with the court which rendered the
judgment or final order appealed from and serving a copy
thereof upon the adverse party.
A board resolution authorizing the representative to initiate the
appeal is not required for the purpose of filing a notice of appeal.
This is because a notice of appeal is not a pleading, initiatory or
otherwise, that, when required by the law or the rules, must
contain, among others, a verification and certification against
forum shopping to be signed by the party or his/her
representative, and, in the case of a representative, proof of
his/her authority to file the action, i.e., power of attorney or
secretary's certificate with copy of the board resolution.
Another possible remedy, if a party lost his right to appeal because
of fraud, accident, mistake or excusable negligence, is a petition for
relief from judgment. Recall that, under Rule 38, Section 2, when a
judgment or final order is rendered by any court in a case, and a
party thereto, by fraud, accident, mistake, or excusable negligence,
has been prevented from taking an appeal, he may file a petition in
such court and in the same case praying that the appeal be given
due course.
111
(d) 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;
For example, there is a judgment by consent (cognovit judgment)
and the motion to set aside such judgment is denied. The order of
denial is not appealable. A judgment by confession or compromise
can be assailed through a motion to set aside the judgment of
compromise on the ground of fraud, mistake or duress or any other
ground vitiating consent. If the motion is denied, the order of denial
is not appealable. The remedy is to file an action for annulment of
judgment under Rule 47. This was the ruling of the Supreme Court
in the following case:
DOMINGO v. COURT OF APPEALS
255 SCRA 189 | 1996
HELD: The correct remedy is for the party to file an action for
annulment of judgment before the Court of Appeals pursuant to
Section 9, par. 2, of the Judiciary Law. A compromise may
however be disturbed and set aside for vices of consent or
forgery. Hence, where an aggrieved party alleges mistake, fraud,
violence, intimidation, undue influence, or falsity in the
execution of the compromise embodied in a judgment, an action
to annul it should be brought before the Court of Appeals, in
accordance with Section 9(2) of Batas Pambansa Bilang 129,
which provides that the has exclusive original jurisdiction over
actions for annulment of judgments of regional trial courts.
(e) An order of execution;
It is a consistent practice that once a judgment has become final
and executory, a writ of execution is issued as a matter of course,
in the absence of any order restraining its issuance (DE LEON versus
PUBLIC ESTATES AUTHORITY, 640 Phil. 594, August 3, 2010).
As a matter of law, once a judgment becomes final, the prevailing
party is entitled as a matter of right to a writ of execution as
mandated by Section 1, Rule 39 of the 1997 Rules of Civil Procedure
(BALINTAWAK CONSTRUCTION SUPPLY CORPORATION versus
VALENZUELA, G.R. No. L-57525, August 30, 1983). Its issuance is,
in fact, the trial court's ministerial duty, the only limitation being
that the writ must conform substantially to every essential
particular of the judgment promulgated, more particularly, the
orders or decrees in the dispositive portion of the decision
(SPOUSES GOLEZ versus SPOUSES NAVARRO, G.R. No. 192532,
January 30, 2013). Even the holding in abeyance of the issuance of
a writ of execution of a final and executory judgment can be
considered abuse of discretion on the part of the trial court
(MINDANAO TERMINAL AND BROKERAGE SERVICE, INC., versus
COURT OF APPEALS, G.R. No. 163286, August 22, 2012).
Ordinarily, an order of execution of a final judgment is not
appealable. Otherwise, a case could never end (VARGAS versus
CAJUCOM, G.R. No. 171095, June 22, 2015). As no appeal may be
taken from an order of execution, the aggrieved party may file the
appropriate special civil action under Rule 65. If the order of
execution was issued by the trial court without or in excess of its
jurisdiction or with grave abuse of discretion amounting to lack or
in excess of jurisdiction, certiorari or prohibition would be proper.
This is particularly true in cases of discretionary execution, whether
the same be execution pending appeal or execution of several,

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
separate or partial judgments, under Rule 39, Section 2. Under this
provision, court may, in its discretion, order execution of a
judgment or final order even before the expiration of the period to
appeal.
However, of particular note is the following case wherein the
Supreme Court ruled that the remedy of a party against an order of
execution is not limited to a Rule 65 petition:
BANAGA v. MAJADUCON
G.R. No. 149051 | June 30, 2006
HELD: Even prior to the promulgation of the 1997 Rules of Civil
Procedure, the rule that no appeal lies from an order or writ
directing the execution of a final judgment, for otherwise a case
will not attain finality, is not absolute since a party aggrieved by
an improper or irregular execution of a judgment is not without
a remedy. Thus, in Limpin V. Intermediate Appellate Court, the
Court enumerated the exceptional circumstances where a party
may elevate the matter of an improper execution for appeal, to
wit:
There may, to be sure, be instances when an error may be
committed in the course of execution proceedings prejudicial to
the rights of a party. These instances, rare though they may be,
do call for correction by a superior court, as where –
1) The writ of execution varies the judgment;
2) There has been a change in the situation of the parties
making execution inequitable or unjust;
3) Execution is sought to be enforced against property
exempt from execution;
4) It appears that the controversy has never been subject
to the judgment of the court;
5) The terms of the judgment are not clear enough and
there remains room for interpretation thereof; or
6) It appears that the writ of execution has been
improvidently issued, or that it is defective in
substance, or issued against the wrong party, or that
the judgment debt has been paid or otherwise
satisfied, or the writ was issued without authority;
In these exceptional circumstances, considerations of justice
and equity dictate that there be some mode available to the
party aggrieved of elevating the question to a higher court. That
mode of elevation may be either by appeal (writ of error or
certiorari), or by a special civil action of certiorari, prohibition,
or mandamus.
The aforementioned pronouncement has been reiterated in
cases subsequent to the adoption of the 1997 Rules of Civil
Procedure. The Court finds no sound justification to abandon
the aforequoted pronouncement insofar as it recognizes the
filing of an ordinary appeal as a proper remedy to assail a writ or
order issued in connection with the execution of a final
judgment, where a factual review in the manner of execution is
called for to determine whether the challenged writ or order has
indeed varied the tenor of the final judgment.
To rule that a special civil action for certiorari constitutes the
sole and exclusive remedy to assail a writ or order of execution
would unduly restrict the remedy available to a party prejudiced
by an improper or illegal execution. A special civil action for
certiorari is not a mode of appeal where the appellate court
112
reviews the errors of fact or law committed by the lower court.
The issue in a special civil action for certiorari is whether the
lower court acted without or in excess of jurisdiction or with
grave abuse of discretion.
(f) A judgment or final order for or against one or more of
several parties or in separate claims, counterclaims,
cross-claims and third-party complaints, while the main
case is pending, unless the court allows an appeal
therefrom; and
Examples of the above provision can be found in Rule 36. The said
Rule provides in part that:
Section 4. Several judgments. — In an action against
several defendants, the court may, when a several
judgment is proper, render judgment against one or more
of them, leaving the action to proceed against the others.
(4)
Section 5. Separate judgments. — When more than one
claim for relief is presented in an action, the court, at any
stage, upon a determination of the issues material to a
particular claim and all counterclaims arising out of the
transaction or occurrence which is the subject matter of
the claim, may render a separate judgment disposing of
such claim. The judgment shall terminate the action with
respect to the claim so disposed of and the action shall
proceed as to the remaining claims. In case a separate
judgment is rendered the court by order may stay its
enforcement until the rendition of a subsequent judgment
or judgments and may prescribe such conditions as may
be necessary to secure the benefit thereof to the party in
whose favor the judgment is rendered. (5a)
The above provisions illustrate that there can be more than one
judgment in one civil case. There could be a judgment on the main
action, as well as on the counterclaims or cross-claims. Each time a
judgment on these separate claims is issued, can one party appeal
already from the first judgment followed by another party
appealing from any judgment subsequently rendered? As a general
rule, no because this would allow multiple appeals which is not
favored by the Rules. The parties have to wait until judgment is
rendered covering all claims. However, the court may, in its
discretion, allow separate appeals. The rule in Section 1(f) and its
exception, however, does not apply to partial summary judgments.
This was the categorical ruling of the Supreme Court in:
PROVINCE OF PANGASINAN v. COURT OF APPEALS
G.R. No. 104266 | March 31, 1993
HELD: A partial summary judgment is merely interlocutory and
not a final judgment. Its nature is specifically provided for in
Section 4 of Rule 34 of the Rules of Court, which reads:
Sec. 4. Case not fully adjudicated on motion. - If on motion
under this rule, judgment is not rendered upon the whole case
or for all the relief asked and a trial is necessary, the court at
the hearing of the motion, by examining the pleadings and the
evidence before it and by interrogating counsel shall ascertain
what material facts exist without substantial controversy and
what material facts are actually and in good faith
controverted. It shall thereupon make an order specifying the

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
facts that appear without substantial controversy, including
the extent to which the amount of damages or other relief is
not in controversy, and directing such further proceedings in
the action as are just. Upon the trial of the action the facts so
specified shall be deemed established, and the trial shall be
conducted accordingly.
What Rule 34 contemplates is that the appeal from the partial
summary judgment shall be taken together with the judgment
that may be rendered in the entire case after a trial is conducted
on the material facts on which a substantial controversy exists.
The trial court and the respondent court erroneously relied on
Section 5 of Rule 36 of the Rules of Court, which pertains to
judgments in general.
In addition, inasmuch as a partial summary judgment does not
finally dispose of the action, execution thereof shall not issue,
conformably with Section 1 of Rule 39 of the Rules of Court.
PARTIAL SUMMARY JUDGMENT, EVEN THOUGH
INTERLOCUTORY, CANNOT BE ASSAILED BY CERTIORARI
PHILIPPINE BUSINESS BANK v. CHUA
G.R. No. 178899 | November 15, 2010
HELD: A partial summary judgment was never intended to be
considered a "final judgment," as it does not "Iput) an end to an
action at law by declaring that the plaintiff either has or has not
entitled himself to recover the remedy he sues for." The Rules
provide for a partial summary judgment as a means to simplify
the trial process by allowing the court to focus the trial only on
the assailed facts, considering as established those facts which
are not in dispute.
After this sifting process, the court is instructed to issue an
order, the partial summary judgment, which specifies the
disputed facts that have to be settled in the course of trial. In
this way, the partial summary judgment is more akin to a record
of pre trial, an interlocutory order, rather than a final judgment.
XXX
The partial summary judgment envisioned by the Rules is an
interlocutory order that was never meant to be treated
separately from the main case. XXX
The propriety of the summary judgment may be corrected only
on appeal or other direct review, not a petition for certiorari,
since it imputes error on the lower court's judgment. It is well-
settled that certiorari is not available to correct errors of
procedure or mistakes in the judge's findings and conclusions of
law and fact.
(g) An order dismissing an action without prejudice.
An example of this is Rule 7, Section 5 on certification against
forum shopping:
Section 5. Certification against forum shopping. — XXX
Failure to comply with the foregoing requirements shall not
be curable by mere amendment of the complaint or other
initiatory pleading but shall be CAUSE FOR THE DISMISSAL
OF THE CASE WITHOUT PREJUDICE, unless otherwise
provided, upon motion and after hearing. The submission of
113
a false certification or non-compliance with any of the
undertakings therein shall constitute indirect contempt of
court, without prejudice to the corresponding administrative
and criminal actions. If the acts of the party or his counsel
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. (n)
Thus, if the RTC upon proper motion and hearing dismissed a
complaint for violation of the rule requiring a certification against
forum shopping. The order dismissing the complaint is generally
not appealable. Under Sec. 5 of Rule 7, a dismissal of this nature is
as a rule, a dismissal without prejudice. An order dismissing an
action without prejudice is not appealable under Section 1(g) of
Rule 41 as amended.
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special
civil action under Rule 65.
APPEALS FROM ISSUANCE OF WRITS OF POSSESSION
SAN FERNANDO RURAL BANK versus PAMPANGA OMNIBUS
DEV'T CORP.
520 SCRA 564
An order granting a writ of possession in a foreclosure of
mortgage under Act No. 3135, as amended is a final order,
hence, appealable. Even if the trial court erred in granting a
petition for a writ of possession, such an act is merely an error of
judgment correctible by ordinary appeal and not by a petition for
a writ of certiorari. However, the issuance of a writ of possession
in connection with a complaint for expropriation under Rule 67
is interlocutory in nature.
ILLUSTRATION
The RTC upon proper motion and hearing dismissed a complaint for
violation of the rule requiring a certification against forum
shopping. The plaintiff filed a motion for reconsideration under
Rule 37. According to the plaintiff, the judgment is contrary to law.
The motion for reconsideration was denied. The plaintiff then filed
a notice of appeal within 15 days from notice of the order denying
the motion for reconsideration. Is the appeal proper? According to
the case of MAKATI INSURANCE CO., INC. versus REYES, G.R. No.
167403, August 6, 2008, if the subject of the motion is an order
dismissing the action without prejudice, the filing of a notice of
appeal is the wrong remedy because an order dismissing an action
without prejudice is not appealable. The order may be the subject
of the special civil action of certiorari under Rule 65.
Section 2. Modes of appeal. —
(a) Ordinary appeal. — The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing a notice of appeal
with the court which rendered the judgment or final order
appealed from and serving a copy thereof upon the adverse
party. No record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals
where law on these Rules so require. In such cases, the record
on appeal shall be filed and served in like manner.
(b) Petition for review. – The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
appellate jurisdiction shall be by petition for review in
accordance with Rule 42.
(c) Appeal by certiorari. – In all cases where only questions of
law are raised or involved, the appeal shall be to the Supreme
Court by petition for review on certiorari in accordance with the
Rule 45. (n)
APPEALS FROM THE REGIONAL TRIAL COURT
There are three modes of appeal from the decision of the Regional
Trial Court, namely:
1. An ordinary appeal or appeal by writ of error, where
judgment was rendered by the court in the exercise of its
ORIGINAL JURISDICTION. This mode of appeal is governed
by Rule 41 and is taken to the Court of Appeals on
questions of fact or mixed questions of fact and law;
2. Petition for review, where judgment was rendered by
the court in the exercise of its APPELLATE JURISDICTION.
This mode of appeal is covered by Rule 42 and is brought
to the Court of Appeals on questions of fact, questions of
law or mixed questions of fact and law;
3. Petition for review on certiorari or appeal by certiorari to
the Supreme Court. This mode is brought to the Supreme
Court from the decision of the Regional Trial in the
exercise of its ORIGINAL JURISDICTION and only on
questions of law (Sec. 2, Rule 41, Rules of Court; FIVE
STAR MARKETING CORPORATION versus BOOC, 535 SCRA
28; QUEZON CITY versus ABS-CBN BROADCASTING
CORPORATION, G.R. No. 166408, October 6, 2008).
For example, if a judgment by the Regional Trial Court in an action
for specific performance is to be appealed from, Rule 41 will govern
the appeal. This is because an action for specific performance is
initially filed with the said court, the action being within the original
jurisdiction of the Regional Trial Court. Any judgment rendered by
it on the case would then be a judgment rendered in the exercise
of its original jurisdiction.
On the other hand, if a litigant loses in the MTC and on appeal loses
in the RTC, the mode of appeal to the Court of Appeals is by way of
Rule 42. This is because the decision of the RTC is in the exercise of
its appellate jurisdiction.
Under Section 2(c), Rule 41 of the Rules, it is provided that in all
cases where only questions of law are raised, the appeal from a
decision or order of the RTC shall be to the Supreme Court by
petition for review on certiorari in accordance with Section 1 of
Rule 45. In one case, where the error relates to a mistake in the
application of law and jurisprudence regarding Section 6 of Rule 39,
and not to an error of jurisdiction or grave abuse of discretion
amounting to excess of jurisdiction, the question presented is one
of law. Consequently, direct resort to the Supreme Court via Rule
45 is proper (VILLAREAL, JR. versus METROPOLITAN WATERWORKS
AND SEWERAGE SYSTEM, G.R. No. 232202, February 28, 2018).
Section 3. Period of ordinary appeal. — The appeal shall be
taken within fifteen (15) days from notice of the judgment or
final order appealed from. Where a record on appeal is required,
the appellant shall file a notice of appeal and a record on appeal
114
within thirty (30) days from notice of the judgment or final
order.
The period of appeal shall be interrupted by a timely motion for
new trial or reconsideration. No motion for extension of time to
file a motion for new trial or reconsideration shall be allowed.
(n)
WHEN TO APPEAL
The appeal shall be taken within fifteen (15) days from notice of the
judgment or final order appealed from. Where a record on appeal
is required, the appellant shall file a notice of appeal and a record
on appeal within thirty (30) days from notice of the judgment or
final order.
NOTES ON THE PERIODS
The 15-day period cannot be extended but it can be interrupted by
a timely motion for new trial or reconsideration. No motion for
extension of time to file a motion for new trial or reconsideration is
also allowed. The 30-day period in appeals requiring a record on
appeal, on the other hand, is extendible, on the condition that the
motion for extension must be filed within the original 30-day period
and provided further that the movant has no right to expect that
his motion will be granted.
The difference in treatment of the different periods lies in the
nature of a notice of appeal compared to a record on appeal. A
notice of appeal, being normally a one-page submission, is very
easy to prepare and file. A record on appeal, on the other hand, is
a document that is more difficult to prepare as can be gleaned from
Section 6:
Section 6. Record on appeal; form and contents thereof. — The
full names of all the parties to the proceedings shall be stated in
the caption of the record on appeal and it shall include the
judgment or final order from which the appeal is taken and, in
chronological order, copies of only such pleadings, petitions,
motions and all interlocutory orders as are related to the
appealed judgment or final order for the proper understanding
of the issue involved, together with such data as will show that
the appeal was perfected on time. If an issue of fact is to be
raised on appeal, the record on appeal shall include by reference
all the evidence, testimonial and documentary, taken upon the
issue involved. The reference shall specify the documentary
evidence by the exhibit numbers or letters by which it was
identified when admitted or offered at the hearing, and the
testimonial evidence by the names of the corresponding
witnesses. If the whole testimonial and documentary evidence
in the case is to be included, a statement to that effect will be
sufficient without mentioning the names of the witnesses or the
numbers or letters of exhibits. Every record on appeal exceeding
twenty (20) pages must contain a subject index. (6a)
Section 4. Appellate court docket and other lawful fees. —
Within the period for taking an appeal, the appellant shall pay
to the clerk of the court which rendered the judgment or final
order appealed from, the full amount of the appellate court
docket and other lawful fees. Proof of payment of said fees shall
be transmitted to the appellate court together with the original
record or the record on appeal. (n)

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Section 5. Notice of appeal. — The notice of appeal shall
indicate the parties to the appeal, specify the judgment or final
order or part thereof appealed from, specify the court to which
the appeal is being taken, and state the material dates showing
the timeliness of the appeal. (4a)
MATERIAL DATA RULE
The rule to the effect that "the petition shall state the specific
material dates showing that it was filed within the period fixed
herein", or the material data rule, should be taken to refer more
particularly to the date of receipt of the award, judgment, final
order or resolution appealed from for the purpose of determining
whether or not the appeal or petition was reasonably brought up
to the appellate body or tribunal (ROMERO versus CIVIL SERVICE
COMMISSION, G.R. No. 139288, February 28, 2000).
LAWYER OF DECEASED CLIENT CANNOT FILE AN APPEAL
In HEIRS OF MAXIMO RIGOSO versus COURT OF APPEALS, 211 SCRA
348, the Plaintiff filed an action against defendant for partition of
property. While the action was pending, defendant died. Recall that
partition is an action which survives. Defendant's lawyer failed to
inform the court about plaintiff's death so, with that, there was no
proper substitution. Later, judgment was rendered against the
deceased defendant. But after the decision came out, the lawyer of
the defendant filed a notice of appeal in accordance with Rule 41.
The Supreme Court ruled, in essence, that the appeal was not
properly made. Upon the death of the defendant, counsel's
authority to represent him already expired. Thus, the notice of
appeal which the lawyer filed in behalf of the deceased was an
unauthorized pleading, and therefore not valid.
Section 7. Approval of record on appeal. — Upon the filing of
the record on appeal for approval and if no objection is filed by
the appellee within five (5) days from receipt of a copy thereof,
the trial court may approve it as presented or upon its own
motion or at the instance of the appellee, may direct its
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. If the trial court orders the amendment
of the record, the appellant, within the time limited in the order,
or such extension thereof as may be granted, or if no time is
fixed by the order within ten (10) days from receipt thereof, shall
redraft the record by including therein, in their proper
chronological sequence, such additional matters as the court
may have directed him to incorporate, and shall thereupon
submit the redrafted record for approval, upon notice to the
appellee, in like manner as the original draft. (7a)
Section 8. Joint record on appeal. – Where both parties are
appellants, they may file a joint record on appeal within the time
fixed by section 3 of this Rule, or that fixed by the court. (8a)
EXAMPLE
The situation covered by Section 8 is where both the plaintiff and
the defendant are aggrieved by the decision of the Regional Trial
Court. For example, the court in an eminent domain case declared
that the taking is proper. The defendant is aggrieved because he
does not want his property expropriated. The plaintiff may also be
aggrieved if, for example, the court required an exorbitant amount
as deposit.
Take note that, while they might both appeal, the appellate court
would only require one record on appeal. Thus, both plaintiff and
115
defendant can agree to transmit a joint record on appeal and even
share the costs.
Section 9. Perfection of appeal; effect thereof. – A party's
appeal by notice of appeal is deemed perfected as to him upon
the filing of the notice of appeal in due time.
A party's appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over
the case upon the perfection of the appeals filed in due time and
the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only
over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the
appeal of the other parties.
In either case, prior to the transmittal of the original record or
the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with 2 of Rule 39, and
allow withdrawal of the appeal. (9a)
RESIDUAL JURISDICTION
The term refers to the authority of a trial court to 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 Sec. 2 of Rule 39, and allow
withdrawal of the appeal provided these are done prior to the
transmittal of the original record or the record on appeal even if the
appeals have already been perfected or despite the approval of the
record on appeal (Sec. 9, Rule 41) or in case of a petition for review
under Rule 42, before the Court of appeals gives due course to the
petition (Sec. 8, Rule 42, Rules of Court).
The concept of residual jurisdiction of the trial court is available at
a stage in which the court is normally deemed to have lost
jurisdiction over the case or the subject matter involved in the
appeal. There is no residual jurisdiction to speak of where no appeal
or petition has even been filed (FERNANDEZ versus COURT OF
APPEALS, 458 SCRA 454).
EFFECT OF PERFECTION OF THE APPEAL AND THE TRANSMITTAL
OF THE RECORDS
The trial court loses jurisdiction over the case. Henceforth, it may
no longer grant a motion for, or issue a writ of immediate
execution. To do so would be an abuse of discretion (see Sec. 2 and
3, Rule 39, as cited in DIESEL CONSTRUCTION CO. INC. versus
JOLLIBEE FOODS CORPORATION, G.R. No. 136805, January 28,
2000)
Section 10. Duty of clerk of court of the lower court upon
perfection of appeal. — Within thirty (30) days after perfection
of all the appeals in accordance with the preceding section, it
shall be the duty of the clerk of court of the lower court:
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

(a) To verify the correctness of the original record or the

record on appeal, as the case may be aid to make
certification of its correctness;

(b) To verify the completeness of the records that will be,

transmitted to the appellate court;

(c) If found to be incomplete, to take such measures as

may be required to complete the records, availing of
the authority that he or the court may exercise for this
purpose; and

(d) To transmit the records to the appellate court.

If the efforts to complete the records fail, he shall indicate in his

letter of transmittal the exhibits or transcripts not included in
the records being transmitted to the appellate court, the
reasons for their non-transmittal, and the steps taken or that
could be taken to have them available.

The clerk of court shall furnish the parties with copies of his
letter of transmittal of the records to the appellate court. (10a)

Section 11. Transcript. — Upon the perfection of the appeal, the

clerk shall immediately direct the stenographers concerned to
attach to the record of the case five (5) copies of the transcripts
of the testimonial evidence referred to in the record on appeal.
The stenographers concerned shall transcribe such testimonial
evidence and shall prepare and affix to their transcripts an index
containing the names of the witnesses and the pages wherein
their testimonies are found, and a list of the exhibits and the
pages wherein each of them appears to have been offered and
admitted or rejected by the trial court. The transcripts shall be
transmitted to the clerk of the trial court who shall thereupon
arrange the same in the order in which the witnesses testified at
the trial and shall cause the pages to be numbered
consecutively. (12a)

Section 12. Transmittal. — The clerk of the trial court shall

transmit to the appellate court the original record or the
approved record on appeal within thirty (30) days from the
perfection of the appeal, together with the proof of payment of
the appellate court docket and other lawful fees, a certified true
copy of the minutes of the proceedings, the order of approval,
the certificate of correctness, the original documentary
evidence referred to therein, and the original and three (3)
copies of the transcripts. Copies of the transcripts and certified
true copies of the documentary evidence shall remain in the
lower court for the examination of the parties. (11a)

Section 13. Dismissal of appeal. — Prior to the transmittal of

the original record or the record on appeal to the appellate
court, the trial court may motu proprio or on motion dismiss the
appeal for having been taken out of time. (14a)
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2-Viada | A.Y. 2020 – 2021

RULES 40 AND 41 • Certiorari under Rule 65 is available only if there is no appeal,

POST-JUDGMENT REMEDIES or any plain, speedy, and adequate remedy in the ordinary
course of law.
Among the remaining remedies we haven't discussed, we have:
APPEAL PER SE PETITIONS FOR OTHER PETITIONS Appeal is not foreclosed by the filing of a motion for new trial or
REVIEW reconsideration under Rule 37.
Rule 40 Rule 43 • In fact, the filing of these motions are, in effect, encouraged
MTC to RTC by Quasi-judicial by the Rules and jurisprudence to afford the court a quo (court
ordinary appeal tribunals to the CA of origin) ample opportunity to correct its own errors, prior to
Rule 41 Rule 42 Rule 65 the taking of appellate recourse.
RTC to CA MTC to RTC to CA Extra-ordinary • Jurisprudence even places a premium on the availment of
(from RTC's (from RTC's petitions for these motions under Rule 37 by giving the movant a fresh
original appellate certiorari, period to file his appeal counted from receipt of the order
jurisdiction) jurisdiction) prohibition or denying his motion for new trial or reconsideration (NEYPES
mandamus versus COURT OF APPEALS, G.R. No. 141524, September 14,
Rule 45 2005 ) we also refer to this as the Neypes Doctrine.
RTC (and up)
directly to SC on The remedy of an ordinary appeal, if it exists, is allowed only once
appeal by in the course of a case.
certiorari on pure • Ordinary appeal is available to question a judgment rendered
questions of law by a lower court in the exercise of its original jurisdiction.
Whether the higher court sustains or reverses the lower court
DISCUSSION on appeal, the remedy of the party aggrieved by the higher
Appeal presupposes that you lost before the MTC, RTC. What are court's resolution is no longer an appeal to the court next
you going to do? Again, it's not the end of the world – you still have higher in rank. His remedy is a petition for review.
what is known as your post judgment remedies and the most
common post judgment remedy would be appeal. Appeal is TAKE NOTE: There is no ordinary appeal of a case already decided
governed by 4 rules: on appeal.
• Rule 40 – MTC to RTC
• For example, a party who lost before the MTC can file an
• Rule 41 and
ordinary appeal to the RTC under Rule 40. Whoever loses
• Rule 45 to the SC on pure questions of law.
between himself and his opponent in the RTC on appeal
cannot take a further ordinary appeal to the CA. Instead, the
Among the remaining remedies that we haven't discussed is appeal
aggrieved party may file with the CA a petition for review
per se wherein all you have to do there will be to file your ordinary
under Rule 42.
appeal, you have petitions for review and other petitions under the
• Conversely, a party who lost before the RTC can file an
rules of court.
ordinary appeal to the CA under Rule 41. From there, the
• Rule 40: MTC to RTC by ordinary appeal, because when
aggrieved party cannot take a further ordinary appeal to the
you talk about petitions for review, MTC to RTC to CA
SC. His remedy would be to file a petition for review under
would fall there meaning, the RTC will be exercising the
Rule 45 on pure questions of law.
appellate jurisdiction – this would is also appeal under
Rule 42.
DISCUSSION
• We also have Rule 45 which talks about appeal by
certiorari on pure questions of law from RTC (and up) Whatever happens, you can only appeal once (referring to ordinary
directly to SC, CA also the appeal here is also via Rule 45. appeals). If ever there were two appeals where different parties
won, there’s no more appeal available, the next step is to file for a
We also have other petitions: petition for review. Although technically speaking if you look at
• Rule 43 that is appeal or petition for review on final application for review under Rule 42 or application for review and
orders of Quasi-judicial tribunals to the CA; the Rule 45, these are still appellate recourses and not special
• Rule 65 on extra-ordinary petitions for certiorari, actions or original actions that you can file before the Supreme
prohibition or mandamus. Court for the Court of Appeals, as the case may be.

PRINCIPLES ON APPEALS, IN GENERAL
Appeal is the most commonly applied and procedurally preferred
post-judgment remedy.
• Thus, before considering whether to avail of other remedies,
the defeated party should first determine whether appeal is
available.
• The remedies under Rules 47 on annulment of judgment and
65, whether filed before the RTC, CA or SC, cannot be invoked
if appeal is available.
• Annulment under Rule 47 would be available only if ordinary
remedies, including appeal, are no longer available.
• A Petition for Review on Certiorari under Rule 45 is the sole
procedural vehicle through which appeals may be taken to the
Supreme Court (DEEPAK KUMAR versus PEOPLE, G.R. No
247661, June 15, 2020). This is also pursuant to Rule 56[B],
Section 3 which provides that:
Section 3. Mode of appeal. An appeal to the Supreme
Court may be taken only by a petition for review on
certiorari, except in criminal cases where the penalty
imposed is death, reclusion perpetua or life imprisonment.
(n)

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
DISCUSSION
Because you need to remember, for example from a judgment
before the RTC which imposes death as the penalty, the mode of
review here is an automatic review by the Supreme Court.
• The same rule applies to original actions filed before CA. The
remedy of ordinary appeal does not exist here. The mode of
appeal is a petition for review under Rule 45 before the
Supreme Court on pure questions of law.
DISCUSSION
Remember that there are cases that we can file directly before the
Court of Appeals, an example of that would be an annulment of
judgment of the RTC by virtue of BP 129, take note the remedy of
ordinary appeal does not exist, even if it is decided by the Court of
Appeals in the exercise of its original jurisdiction, the remedy is not
ordinary appeal but to file a petition for a view on Certiorari under
45 before the Supreme Court on pure questions of law.
Another instance where the remedy of ordinary appeal does not
exist, is when the law or the rules this declares a case to be
unappealable. An example of this is Section 23 on small claims
cases. The aggrieved party cannot file an ordinary appeal since the
law forecloses the remedy since it is final and unappealable by
virtue of the law itself. Nevertheless, the proscription appears in
small claims cases, similar to other proceedings where appeal is not
an available remedy, does not preclude the aggrieved party from
filing a petition for certiorari under Rule 65 of the Rules of Court
(A.L. ANG NETWORK, INC., v. EMMA MONDEJAR, G.R. No. 200804,
January 22, 2014).
The remedy to obtain reversal or modification of judgment on the
merits (you are questioning the entire case, the appreciation of the
evidence and application of the law in the lower court – error of
judgment) is appeal not Rule 65 petition.
• This is true even if the error, or one of the errors, ascribed to
the court rendering the judgment is its lack of jurisdiction over
the subject matter, or the exercise of power in excess thereof,
or grave abuse of discretion in the findings of facts or of law
set out in the decision (ASSOCIATION OF INTEGRATED
SECURITY FORCE versus COURT OF APPEALS, G.R. No. 140150,
August 22, 2005).
An appeal is taken only against final judgments or orders, not
interlocutory ones. (note the distinction between final order and
interlocutory order)
• Appeal may be taken only from a judgment or final order that
completely disposes of the case (Section 1, Rule 41). A mere
interlocutory order is not appealable.
• Thus, a party aggrieved by an interlocutory order must wait
until the judgment in the case is rendered in order to appeal,
unless he intends to question the order by way of certiorari
under Rule 65.
DISCUSSION
Final Order – an order that disposes of the case.
Example: when you lose in a case, you must wait until the judgment
or final order is rendered to appeal unless you intend to question
the order by way of Certiorari under Rule 65.
Interlocutory Order
Example: the grant of provisional remedies such as preliminary
injunction or preliminary attachment or the perfect example, TRO.
118
• What if these are not granted? These are interlocutory orders
because regardless of what happens there, the case will still
proceed. Not a final order.
• The only remedy that you have against an interlocutory order
will be to file a petition for Certiorari which is an extraordinary
remedy, the better remedy is to wait for a final judgment and
then you can appeal.
There are judgments or orders that are not appealable.
Under Section 1 of Rule 41, no appeal may be taken from:
(a) An order denying a petition for relief or any similar motion
seeking relief from judgement;
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) 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;
(e) An order of execution;
(f) A judgment or final order for or against one or 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;
(g) An order dismissing the action without prejudice.
TAKE NOTE: For the discussion regarding these, refer to the notes
sent by Sir JZE.
(g) An order dismissing an action without prejudice
DISCUSSION
Q: When you say without prejudice, what does that
mean?
A: It means you can refile it. If you can refile, the law
already forecloses the remedy of appeal because you can
always refile the case. Just because you lost does not
mean that you cannot refile. It is not the end of the world
for you.
A PARTY MAY NOT CHANGE HIS THEORY OF THE CASE ON APPEAL
DISCUSSION
You cannot change. The theory of the case when you
were before the lower court must be the same. For
example, if you were the defendant and your theory of
the case is prescription, you cannot change that on
appeal. In fact, this is in Rule 44 Section 15.
• Section 15 Rule 44 states the principles that parties are not
allowed to change their theory of the case on appeal. Thus:
Section 15. Questions that may be raised on appeal.
Whether or not the appellant has filed a motion for new
trial in the court below, he may include in his assignment
of errors any question of law or fact that has been raised
in the court below and which is within the issues framed
by the parties.
• An issue not alleged in the complaint, pleaded in the answer
or raised before the trial court cannot be raised for the first
time on appeal as this goes against the basic rules of fair play,
justice, and due process (DE LOS SANTOS vs. LUCENIO, GR No.
215659, March 19, 2018).
AN APPELLATE COURT CANNOT PASS UPON ISSUES NOT RAISED
IN THE LOWER COURTS
DISCUSSION

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
The things that happened before the proceedings in the
lower court, those are the things that you can raise on
appeal. You cannot raise in appeal something that is not
touched upon before the proceedings before the lower
court.
• Rule 51, Section 8 states that:
Section 8. Questions that may be decided.- No error
which does not affect the jurisdiction over the subject
matter or the validity of the judgment appealed from or
the proceedings therein will be considered unless stated
in the assignment of errors, or closely related to to
dependent on an assigned error and properly argued in
the brief, save as the court may pass upon plain errors
and clerical errors.
An appellate court cannot pass upon issues not raised in
the lower courts.
By way of exception, the court may consider an error not raised
on appeal if it is an error that:
1. Affects the jurisdiction over the subject matter;
2. Affects the validity of the judgment appealed from;
3. Affects the proceedings;
4. Is error closely related to or dependent on an assigned
error and properly argued in the brief (HEIRS OF
MACELINO DORONIO vs. HEIRS OF FORTUNATO
DORONIO, 541 SCRA 479 [2008]); and
5. Is plain and clerical.
DISCUSSION
You can raise these. Anyway, there is no prejudice on the
substantial rights since it is just a clerical error.
In addition, the Supreme Court is clothed with ample authority to
review matters, even if they are not assigned as errors on appeal, if
it finds that their consideration is necessary in arriving at a just
decision of the case (BOSTON BANK OF THE PHILIPPINES vs.
MANALO, GR No. 158149, February 9, 2006).
The Court of Appeals is also imbued with sufficient discretion to
review matters, not otherwise assigned as errors on appeal, if it
finds that the consideration is necessary in arriving at a complete
and just resolution of the case or to serve the interests of justice or
to avoid dispensing piecemeal justice (ASIAN TERMINALS, INC. vs.
NLRC, 541 SCRA 105[2007]).
DISCUSSION
It means that even if you did not raise it as an error on
your appeal before the Court of Appeals, the CA can still
take it up if it leads to complete and just resolution of the
case or to serve the interests of justice.
The fact that the appellant's brief did not raise the lack of
jurisdiction of the trial court should not prevent the Court of
Appeals from taking up the issue of lack of jurisdiction (CALIMLIM
vs. RAMIREZ, 118 SCRA 399).
Remember that lack of jurisdiction over the subject matter can be
raised at any time, even for the first time on appeal. It is also an
exception to the Omnibus Motion Rule.
DISCUSSION
119
This lack of jurisdiction can always be raised even for the
first time before the Supreme Court provided the
principle of jurisdiction by estoppel has not yet operated
as laid down by SC in Tijam vs. Sibonghanoy.
PAYMENT OF APPELLATE DOCKET FEE WITHIN THE PRESCRIBED
PERIOD IS MANDATORY FOR THE PERFECTION OF AN APPEAL.
Payment of docket fees within the prescribed period is both
mandatory and jurisdictional, noncompliance with which is fatal to
an appeal. The full amount of the appellate court docket and other
lawful fees must be paid to the clerk of the court which rendered
the judgment or final order appealed from. Without payment, the
appeal is not perfected and the appellate court does not acquire
jurisdiction to entertain it, thereby rendering the decision sought
to be appealed final and executory. Non-payment within the
reglementary period is a ground for the dismissal of an appeal (CU-
UNJIENG vs. COURT OF APPEALS, 479 SCRA 594, January 24, 2006).
DISCUSSION
In anything that you file, especially if it is an appeal, there
must be primacy in payment of docket fees. Recall when
we were talking of jurisdiction of the several courts and
the filing of a civil action. It has been repeated by the SC
that there must be payment of docket fees because non-
payment of docket fees affects the jurisdiction of the
court to act upon your action. The same thing goes with
an appeal. An appeal, as mentioned by the SC is not part
of due process. It is not even a constitutional right. If it is
not a natural right accorded to a party litigant, then it just
a privilege. Therefore, being a privilege, the right to
appeal in accordance with limitations imposed on it by
law and part of it is the payment of appellate docket
fees.
While the established rule is that the payment in full of the docket
fees within the prescribed period is mandatory. Nevertheless, this
rule must be qualified, to wit:
First, the failure to pay appellate docket fee within the
reglementary period allows only discretionary dismissal, not
automatic dismissal, of the appeal;
DISCUSSION
It simply triggers the discretion of the appellate court to
dismiss the appeal. The dismissal is not automatic. That is
the reason why if you haven't paid the appropriate
docket fees, the CA will send you a show cause order why
the appeal failed to pay the proper docket fee. If there is
no compliance then that is the time that CA will dismiss
the appeal.
Second, such power should be used in the exercise of the Court's
sound discretion "in accordance with the tenets of justice and fair
play and with great deal of circumspection considering all
attendant circumstances" (REPUBLIC vs. SPOUSES LURIZ, GR No.
158992, January 26, 2007).
To understand appeals a little better, let's go back to BP 129.
Section 39. Appeals. – The period for appeal from final orders,
resolutions, awards, judgments, or decisions of any court in all
cases shall be fifteen (15) days counted from the notice of the
final order, resolution, award, judgment, or decision appealed
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

from: Provided however, That in habeas corpus cases, the Discussion: The
period for appeal shall be forty-eight (48) hours from the notice Discussion: Special same with civil
of the judgment appealed from. proceedings are actions where
those that seek a multiple actions
No record on appeal shall be required to take an appeal. In lieu status, a right or are allowed.
thereof, the entire record shall be transmitted with all the pages particular fact. The
prominently numbered consecutively, together with an index of appeal there is
the contents thereof. probate
proceedings,
This section shall not apply in appeals in special proceedings and allowance or
in other cases wherein multiple appeals are allowed under disallowance of
applicable provisions of the Rules of Court. wills, adoption,
guardianship,
DISCUSSION these are special
proceedings.
This is the basic law on appeal.
Habeas Corpus Ordinary appeal 48 hours from
SUMMARY (also a special which is taken by notice of judgment
proceeding) filing a notice of
appeal
TYPE OF CASE MODE OF APPEAL PERIOD
Discussion: This is
Civil actions, in Ordinary appeal 15 days from
one of the
general which is taken by notice of judgment
situations under
filing a notice of or final order.
the law when the
appeal
law does not talk
about days or
Discussion: In
months, years. It
default of any
merely talks about
other rule, this is
hours. Another is
what we need to
preliminary
remember. It is an
injunction. There is
ordinary civil case.
what you call a 72-
If it is not a special
hour TRO.
civil action where
multiple appeals
NOTICE OF APPEAL
are allowed,
special proceeding,
Sample:
habeas corpus case
then ordinary
appeal is our mode
of appeal.
Civil actions where Ordinary appeal 30 days from
multiple appeals which can be taken notice of judgment
are allowed by filing a notice of or final order
appeal AND a
record of appeal. Discussion: Take
note, you need to
file two things. A
notice of appeal is
very short
document. But the
record on appeal is
difficult to do. You
need to put a lot of
things in your
record of appeal.
Therefore, it needs
a longer time to file
an appeal.
Special Ordinary appeal 30 days from
proceedings which can be taken notice of judgment
by filing a notice of or final order
appeal AND a
record of appeal.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
DISCUSSION
Take note, a Notice of Appeal is really short.
First, take note of those highlighted parts. "REGIONAL TRIAL
COURT, 11th Judicial Region, Branch 17" and then "RENDERED BY
THE HONORABLE COURT IN THE ABOVE ENTITLED CASE" so what
am I emphasizing? I really want to emphasize this:
• That when you talk about filing a notice of appeal, let's say the
RTC was the one who rendered a judgement, you do not file
your Notice of Appeal before the Court of Appeals. You file
your Notice of Appeal before the Court that rendered the
judgement or Final Order appealed from. That's a common
misconception. If you're not my student probably, it could be
a common misconception.
But then, what you need to remember as well would be this one:
This "Apellation of the parties" Plaintiffs-Apellants, Defendant-
Apellees.
Q: When you say "Plaintiff-Apellant". What does it tell you?
A: It tells you that the "Plaintiff" is the one who lost the case. The
defendant is the one who won the case. Because he is the
"Appellant".
For example, the usual situation is "Pia vs Maja", Pia-plaintiff vs
Maja-defendant. If Pia won the case, what will happen? Of course
Maja will make an appeal. Because Maja, the defendant lost the
case.
Q: What will happen now to the title of the case that you're filing
before the Court of Appeals? Will it become Maja vs Pia instead of
Pia vs Maja?
A: NO. Because under the rules, the title of the case shall remain as
it was in the Court of Origin, but the party appealing the case shall
be further referred to as the "Appellant" and the Adverse party as
the "Appellee". So the name of the case would not change
regardless of who wins.
So it's still going to be Pia vs Maja instead of Maja vs Pia, you're just
going to extend it. So let's say Pia won, then Maja made an appeal,
it will be:
• "Pia, Plaintiff-Appellee" vs "Maja, Defendant-Appellant".
Because it was Maja who made an appeal. So that's what we need
to remember here.
121
Now finally, with respect to a notice of appeal, which again is a 1-
page document. So the "This Notice of Appeal filed and served
today, August 10, 2017, is filed within the prescribed period
considering that the 15th day from August 5, 2017 is August 20,
2017".
So that is what you call a "statement of the material dates". or
"The notice of appeal shall state the material dates showing the
timeliness of the appeal (Rule 40, Section 3 and Rule 41, Section 5).
So that is what you call the mandatory contents of a Notice of
Appeal. We will discuss more of that later on.
CRISOLOGO v. DARAY
A.M. No. RTJ-07-2036. August 30, 2006
The Notice of Appeal does not require the approval of the court.
The function of the Notice of Appeal is merely to notify the Trial
Court that the appellant was availing of the right to appeal.
DISCUSSION
It is not necessary to ask for permission for it. You're simply giving
notice. That's Crisologo versus Daray. This is actually a Davao
Region case because Judge Daray is a Judge for the Davao Region
for the longest time.
RECORD ON APPEAL
Let's go to the Record on Appeal. Because a Record on Appeal,
again is an additional requirement in Special proceedings and in
Civil Cases where multiple appeals are allowed.
An appeal is normally made by filing a Notice of Appeal with the
Trial Court which rendered the judgement or Final Order appealed
from. According to Sec. 39 of BP 129, the entire original record of
the appealed case shall be transmitted to the appellate court with
all the pages prominently numbered consecutively, together with
an index of the contents thereof.
No record on appeal shall be required except in special proceedings
and other cases of multiple or separate appeals where the law or
the Rules of Court so require.
For example, in a case where multiple appeals are allowed, a party
may appeal only a particular incident in the case and not all of the
matters involved in the same case. The others which are not made
the subject of the appeal remain to be resolved by the trial court.
These are matters that will still be resolved by the trial court.
The record on appeal is therefore required so the appellate court
may have a record of the proceedings to resolve a separate and
distinct issue raised in the appeal, and since the original records
remain with the trial court, it still can resolve the other issues of the
case not made subject of the appeal.
So it is to be remembered, when you made an appeal, MTC to RTC,
what will happen there? When you file an appeal, it transmits to
the lower court the records of their trial in the original case to the
Regional Trial Court so that there will be basis for the Regional Trial
Court to decide. So the entire record.
The problem is, there are cases where you can make multiple
appeals. We will go to examples of that later on.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
So, in the matter that you are appealing, what will happen there?
What will be the basis of the appellate court for example, in
deciding the issue that you raised during appeal if there are no
records? And we know that because the judgement is not yet final,
because there are still things to do in the Trial Court, the Trial Court
still could not transmit the record. So what would be the solution
for the law?
The Solution would be to require the appealing party to file
together with this Notice of Appeal, a record on appeal so that
there would be a basis. So that's the purpose of a Record on
Appeal.
ROMAN CATHOLIC ARCHBISHOP OF MANILA versus COURT OF
APPEALS
G.R. No. 111324, July 5, 1996
Multiple appeals are allowed in special proceedings (all special
proceedings), in actions for recovery of property with
accounting, in actions for partition of property with accounting,
in the special civil actions for eminent domain and foreclosure
mortgage. The rationale behind allowing more than one appeal
in the same case is to enable the rest of the case to proceed in
the event that as separate and distinct issue is resolved by the
court and held to be final.
DISCUSSION
What I want you to remember there would be what are the specific
cases where multiple appeals are allowed? These are the:
• Special Proceedings,
• Actions for recovery of property with accounting,
• Actions for partition of property with accounting,
• Special Civil action for Eminent domain, and
• Special Civil Action for Foreclosure of Mortgage.
So there are 5, according to the Supreme Court.
With particular reference to expropriation, for example under Rule
67, again an Expropriation is a Special Civil Action, take note that
the two different issues are the right to expropriate whether the
taking is proper by the government of the private property, and
then second would be the determination of the amount of just
compensation.
EXAMPLE
The government expropriated your property, and then the court
will be required to make a declaration whether the expropriation
was proper.
When the court reaches that resolution, and says for example that
the taking was proper, that is immediately appealable.
The party aggrieved, the land owner has the right to appeal that
already.
So take note that there is still a remaining issue, and that would be
the amount of Just Compensation. It is yet to be determined by the
Trial Court.
It cannot be allowed that the trial court would send the records to
the Court of Appeals the records of the case. Because, it is still to
complete the process, just compensation is yet to be determined.
122
That's the reason why if you are to make an appeal, regarding the
Order of the Court declaring that the taking of the property is
proper, you have to send a Record on Appeal.
MARINDUQUE MINING AND INDUSTRIAL CORP. v. COURT OF
APPEALS
G.R. No. 161219, October 6, 2008
However, take note that if the trial court has fully and finally
resolved all issues in the complaint for expropriation, there is no
need to file a record on appeal even in an expropriation case.
DISCUSSION
In other words, what Marinduque Mining vs Court of Appeals is
telling you is that even if it is an Eminent Domain case, but it is
already done with the trial court, for example, the right to
expropriate has already been resolved, the amount for Just
Compensation has already been resolved, but you're the land
owner, you insist that the expropriation was not right, but you did
not make an appeal;
Secondly, the payment of the government to you remains unclear
because it is very cheap such as it is not approximate to the Fair
Market Value, of course you can make an appeal, you can question
those.
Can the government, for example object to your appeal because
you merely made a notice of appeal, you did not file a record on
appeal in that situation?
According to the Supreme Court in Marinduque Mining vs CA, a
record on appeal is no longer necessary.
Why? Because it is already fully resolved.
Both appealable issues are already resolved with finality by the
court. And therefore, all you need to do would be to file a notice of
Appeal. A record on appeal is no longer necessary.
BOTH RECORD ON APPEAL AND NOTICE OF APPEAL, NOT ONLY
RECORD ON APPEAL IS REQUIRED.
Because that is the common misconception.
Again, when you file a notice of appeal, that is the only one that you
file. Because that is the only one that is required under the law, but
what if it requires a record on appeal by way of exception? Again,
Special Proceedings, or in cases where multiple appeals are
allowed.
Q: What if you only filed a record on appeal? You did not file a
notice of appeal, should the appeal be dismissed?
PERALTA v. SOLON
77 Phil. 610
NO. The appeal will not be dismissed because the filing of the
record on appeal is harder to comply with than the filing of a
notice of appeal. The filing of the record on appeal is more
expressive of the desire of the party to appeal.
Why? Because it is really harder to make. It is really difficult to
make.

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 40
APPEAL FROM MTCS TO THE RTCS.
Section 1. Where to appeal.- An appeal from a judgement or
final order of a Municipal Trial Court may be taken to the
Regional Trial Court exercising jurisdiction over the area to
which the former pertains. The title of the case shall remain as
it was in the court of origin, but the party appealing the case
shall be further referred to as the appellant and the adverse
party as the appellee.
DISCUSSION
It is not easy to memorize. Would you agree with me that it is
difficult to memorize? Not like in Obligations and Contracts wherein
it is clear who are the debtors and creditors, employer-employees,
we all know that, it is easy to keep in mind. What about this
appellant-appellee?
"Sir, appellant and appellee is confusing." Is there an easy way to
remember who are those appellant and appellees really?
Actually it is not confusing. Actually there's an easy way to
remember the difference based on American Jurisprudence.
American Jurisprudence as cited by a lot of authors actually. So
APPELL-ANT and there is also APPELL-EE.
What's the difference?
• It's the ending -ANT which means "Ang Na-Talo" or "Ay,
Napildi Tayo".
• What about APPELLEE, what does the -EE stand for? Since he
won, actually it is a shortcut for "YIPEE!".
That's it. It's American Jurisprudence. Don't forget that because
that's based on AmJur.
Section 2. When to appeal. — An appeal may be taken within
fifteen (15) days after notice to the appellant of the judgment or
final order appealed from. Where a record on appeal is required,
the appellant shall file a notice of appeal and a record on appeal
within thirty (30) days after notice of the judgment or final order.
The period of appeal shall be interrupted by a timely motion for
new trial or reconsideration. No motion for extension of time to
file a motion for new trial or reconsideration shall be allowed. (n)
NOTE: Don’t be misled by the arrows. You file the notice of appeal
in MTC. not RTC.
123
DISCUSSION
If you lose in the Municipal Trial Court, since we are talking about
Rule 40 which are cases decided by the Municipal Trial Court that
you want to appeal to the Regional Trial Court.
NOTE: As a general rule, the mode of appeal if it’s from MTC to RTC
is an ordinary appeal.
The difference lies in the ‘periods’. So, what are the applicable
periods?
1.) If only a notice of appeal is required - 15 days.
So, you file a notice of appeal with the MTC (which is the
court that rendered the judgment). And then, the MTC
will now transmit records to the RTC.
2.) If a record on appeal is required - 30 days.
So, you have to file both a NOTICE OF APPEAL and a
RECORD ON APPEAL in order for you to appeal in the RTC.
“Period of appeal shall be interrupted by a timely motion for new
trial or reconsideration. No motion for extension of time to file a
motion for new trial or reconsideration shall be allowed.”
DISCUSSION
Now, if you analyze properly, if your appeal is by way of a notice of
appeal. Isn’t it only for 15 days? Now, during the period to appeal,
that 15 days, you have options, you can:
1. File a motion for new trial;
2. File a motion for reconsideration; or
3. File an appeal.
REMEMBER: The 15 days to file a notice of appeal, because the
notice of appeal is a very short document, you don’t need 15 days
to do that. You only need 15 mins for that notice of appeal.
So, if the extension to file a motion for new trial or motion for
reconsideration is allowed, YOU CAN USE THAT EXTENSION TO FILE
A NOTICE OF APPEAL. In the end, you can decide if you’d file a
motion for new trial/reconsideration or file a notice of appeal
instead.
That is the reason why you are NOT allowed to file an extension to
motion for new trial or reconsideration.
POINTS TO REMEMBER:
The MTC is a purely original court. This means that there are no
cases decided by it on appeal because it has no appellate
jurisdiction.
GENERAL RULE: The remedy to question MTC orders and decisions
is an ordinary appeal by notice of appeal to the RTC.
Q: Are there instances under the law and rules where MTC orders
and decisions can be questioned by a different mode? (Or, maybe
not before the RTC?)
A: Yes, there are exceptions:
1.) BP 129, Section 34. Delegated jurisdiction in cadastral
and land registration cases. - MTCs may be assigned by
the SC to hear and determine cadastral or land
registration cases covering lots where there is no
controversy or opposition, or contested lots where the

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
value of which does not exceed P100,000.00 XXX. Their
decisions in these cases shall be appealable in the same
manner as decisions of the RTC.
So, the RTC when it acts as a cadastral and land
registration court, how do you appeal? You file an
ORDINARY APPEAL to the COURT OF APPEALS. It is the
same as when the MTC is delegated as a cadastral and
land registration court. You appeal it with the CA. MTC
going straight to CA.
2.) Under Section 23 of the Rule of Procedure for Small
Claims cases, the aggrieved party cannot file an ordinary
appeal but he may file a petition for certiorari under
Rule 65. (A.L. Ang Network, Inc. vs. Mondejar, G.R. No.
200804, January 22, 2014.)
3.) Special proceedings may be tried by a Municipal Trial
Court.
• Recall that the MTC has exclusive original
jurisdiction over probate proceedings, testate
and intestate, where the value of the estate
does not exceed P300,000.00 or P400,000.00,
in Metro Manila. Probate is, of course, a special
proceeding.
• Guardianship proceedings may be commenced
as well in the MTC of the place where the minor
or incompetent person resides (Rule 92)
Because the judgments subject to appeal emanated from
special proceedings, a record on appeal is required. So,
it is possible even if it is from the MTC.
4.) A record on appeal is required in an MTC case where
multiple appeals are allowed such as actions for recovery
of property with accounting, for partition of property
with accounting and for foreclosure of mortgage.
5.) An action for recovery of property with accounting may
of course be filed before the MTC based on the assessed
value.
6.) An action for partition of property with accounting may
be filed before the MTC as well by virtue of the Supreme
Court’s ruling in Heirs of Agarrado vs. Agarrado, G.R. No.
212413, June 06, 2018. *
• Because although it is incapable of pecuniary
estimation [Russel vs. Vestil], it nevertheless is
a ‘real action’. Therefore, the jurisdiction must
be based on the assessed value.
7.) An action for foreclosure of mortgage may also be filed
before the MTC as held in Roldan vs. Sps. Barrios, ET AL.,
G.R. No. 214803, April 23, 2018.
• Same. Assessed value must be looked at to
determine jurisdiction. There could also be
judgment for accounting in this case, hence
there could be multiple appeals and a record on
appeal might be required even if it is an MTC
case.
8.) In a case tried before the MTC, there may be certain
judgments or orders from which no appeal may be taken.
124
• For example, an interlocutory order of the MTC
cannot be appealed but the aggrieved party
may file the appropriate special civil action
under Rule 65.
Section 4. Perfection of appeal; effect thereof. — The perfection
of the appeal and the effect thereof shall be governed by the
provisions of section 9, Rule 41. (n)
Section 5. Appellate court docket and other lawful fees. — Within
the period for taking an appeal, the appellant shall pay to the clerk
of the court which rendered the judgment or final order appealed
from the full amount of the appellate court docket and other lawful
fees. Proof of payment thereof shall be transmitted to the
appellate court together with the original record or the record on
appeal, as the case may be. (n)
Section 6. Duty of the clerk of court. — Within fifteen (15) days
from the perfection of the appeal, the clerk of court or the branch
clerk of court of the lower court shall transmit the original record
or the record on appeal, together with the transcripts and exhibits,
which he shall certify as complete, to the proper Regional Trial
Court. A copy of his letter of transmittal of the records to the
appellate court shall be furnished the parties. (n)
DISCUSSION
So, that is the duty of the Clerk of Court if the appeal has been
perfected. It will ‘transmit’ the original record. Or, if multiple
appeals is allowed, that record on appeal.
NOTE:
Q: Where do you file the NOTICE OF APPEAL?
A: In the court that rendered the judgment.
Q: Where do you file the RECORD ON APPEAL?
A: Again, with the court that rendered the judgment.
Later on, they will just transmit, provided that the appeal has
already been perfected pursuant to section 5.
Section 7. Procedure in the Regional Trial Court. —
(a) Upon receipt of the complete record or the record on appeal,
the clerk of court of the Regional Trial Court shall notify the parties
of such fact.
(b) Within fifteen (15) days from such notice, it shall be the duty of
the appellant to submit a memorandum which shall briefly discuss
the errors imputed to the lower court, a copy of which shall be
furnished by him to the adverse party. Within fifteen (15) days
from receipt of the appellant's memorandum, the appellee may
file his memorandum. Failure of the appellant to file a
memorandum shall be a ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of the appellee, or the
expiration of the period to do so, the case shall be considered
submitted for decision. The Regional Trial Court shall decide the
case on the basis of the entire record of the proceedings had in the
court of original and such memoranda as are filed. (n)
 125
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Take note: This is just an administrative provision.

matter dismissed.
1.) The clerk of court shall notify the parties of such fact. That
the complete record or the record on appeal has already RTC reverses The MTC The case shall
been received. the dismissal. really has be remanded
jurisdiction to the MTC for
2.) Within 15 days, it will be the duty of the appellant to over the case further
submit the memorandum or what we call an “appeal proceedings.
memorandum”. It can also be responded to by the other
party. The appellant will file his memorandum, the The MTC tried RTC reverses The RTC is, in It will decide
appellee will also file a memorandum when allowed. Take and decided a the MTC. fact, the court the case but
note that failure of the appellant to file a memorandum case over that has not as if the
shall be a ground for the dismissal of the appeal. which it has jurisdiction case was
no jurisdiction over the case originally filed
3.) Upon the filing of the memorandum of the appellee, it is tried by the with it.
now considered as submitted for decision. So, will there MTC.
be a trial before the RTC on appeal? NOT ANYMORE. So, It shall apply
it will all be on the basis of the original records plus the appellate
memorandum that was filed by the parties. So that’s rules but may
what will happen in the RTC. allow
amended
Section 8. Appeal from orders dismissing case without trial; lack pleadings or
of jurisdiction. — If an appeal is taken from an order of the lower admit
court dismissing the case without a trial on the merits, the Regional additional
Trial Court may affirm or reverse it, as the case may be. In case of evidence.
affirmance and the ground of dismissal is lack of jurisdiction over
the subject matter, the Regional Trial Court, if it has jurisdiction It should not
thereover, shall try the case on the merits as if the case was be as if there
originally filed with it. In case of reversal, the case shall be must be a trial
remanded for further proceedings. de novo.

If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court on Section 9. Applicability of Rule 41. — The other provisions of Rule
appeal shall not dismiss the case if it has original jurisdiction 41 shall apply to appeals provided for herein insofar as they are not
thereof, but shall decide the case in accordance with the preceding inconsistent with or may serve to supplement the provisions of this
section, without prejudice to the admission of amended pleadings Rule. (n)
and additional evidence in the interest of justice. (n)
Discussion
DISCUSSION So, Rule 41 is applicable to Rule 40. MTC to RTC.
If the Trial Court dismisses the case due to lack of jurisdiction over
the subject matter, what will happen? Meaning, the MTC is saying So what is Rule 41? Appeal from RTC Going to CA or SC.
“I don’t have jurisdiction over that, so I will dismiss.” Now, what
happens if the RTC AFFIRMS the dismissal? If RTC will say “Correct.
The MTC has no jurisdiction.” Why? Because probably, it is the RTC
which has jurisdiction over the case which was dismissed by the
MTC.

EFFECT: The RTC shall try the case on the merits as if the case was
originally filed with it. So, there needs to be a trial in the RTC
because anyway it is the RTC which has jurisdiction.

SITUATIONS UNDER SECTION 8

ACTION OF ACTION OF GROUND EFFECT
THE MTC RTC ON
APPEAL

The MTC RTC affirms The RTC is, in The RTC shall
dismissed the the dismissal. fact, the court try the case on
case for lack that has the merits as if
of jurisdiction jurisdiction the case was
over the over the case originally filed
subject that the MTC with it
 126
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

RULE 41 appeal or with

APPEAL FROM THE REGIONAL TRIAL COURTS Record on
Appeal)

Section 1. Subject of appeal. — An appeal may be taken from a RTC Appellate CA Rule 42 Petition for
judgment or final order that completely disposes of the case, or of jurisdiction Review
a particular matter therein when declared by these Rules to be
appealable. RTC or CA Pure SC Rule 45 Appeal by
questions of law Certiorari
No appeal may be taken from: (unless within the
(a) An order denying a motion for new trial or reconsideration; exceptions which
(b) An order denying a petition for relief or any similar motion involve questions
seeking relief from judgment; of fact and law:
(c) An interlocutory order; Habeas data,
(d) An order disallowing or dismissing an appeal; rules of amparo,
(e) An order denying a motion to set aside a judgment by ROP for Envi cases
consent, confession or compromise on the ground of fraud, etc.)
mistake or duress, or any other ground vitiating consent;
(f) An order of execution; DISCUSSION
(g) A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and Remember our previous discussions as to the exception, wherein a
third-party complaints, while the main case is pending, unless Rule 45 petition may be filed not on pure questions of law but
the court allows an appeal therefrom; and including questions of fact - Habeas data, rules of amparo, ROP for
(h) An order dismissing an action without prejudice. Envi cases etc.

In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil
action under Rule 65. (n)
Section 2. Modes of appeal. —
(a) Ordinary appeal. — The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and
serving a copy thereof upon the adverse party. No record on
appeal shall be required except in special proceedings and other
cases of multiple or separate appeals where law on these Rules so
require. In such cases, the record on appeal shall be filed and
served in like manner.
(b) Petition for review. — The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for review in accordance
with Rule 42.
(c) Appeal by certiorari. — In all cases where only questions of law
are raised or involved, the appeal shall be to the Supreme Court by
petition for review on certiorari in accordance with the Rule 45. (n)
Section 3. Period of ordinary appeal. — The appeal shall be taken
within fifteen (15) days from notice of the judgment or final order
appealed from. Where a record on appeal is required, the
appellant shall file a notice of appeal and a record on appeal within
thirty (30) days from notice of the judgment or final order.
The period of appeal shall be interrupted by a timely motion for
new trial or reconsideration. No motion for extension of time to
file a motion for new trial or reconsideration shall be allowed. (n)
Section 4. Appellate court docket and other lawful fees. — Within
the period for taking an appeal, the appellant shall pay to the clerk
of the court which rendered the judgment or final order appealed
from, the full amount of the appellate court docket and other
lawful fees. Proof of payment of said fees shall be transmitted to
the appellate court together with the original record or the record
on appeal. (n)
Section 5. Notice of appeal. — The notice of appeal shall indicate
the parties to the appeal, specify the judgment or final order or
part thereof appealed from, specify the court to which the appeal
is being taken, and state the material dates showing the timeliness
of the appeal. (4a)

SUMMARY OF MODES OF APPEAL MATERIAL DATA RULE

ROMEO v. CIVIL SERVICE COMMISSION
G.R. No. 139288, February 28, 2000
From what court To what Governing Mode of
court Rule Appeal
The rule to the effect that “the petition shall state the specific
material dates showing that it was filed within the period fixed
MTC Original RTC Rule 40 Ordinary
herein”, or the material data rule, should be taken to refer more
Jurisdiction Appeal
particularly to the date of receipt of the award, judgment, final
order or resolution appealed from for the purpose of determining
RTC Original CA Rule 41 Ordinary
whether or not the appeal or petition was reasonably brought up
Jurisdiction Appeal
to the appellate body or tribunal.
(Notice of

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
DISCUSSION
So, that’s the only purpose of that. So that when you file your notice
of appeal, at first glance, it can already be seen whether the appeal
was filed within the prescriptive period or not. (15 or 30 days)
LAWYER OF DECEASED CLIENT CANNOT APPEAL
In HEIRS OF MAXIMO RIGOSO vs. CA, 211 SCRA 348, the
Plaintiff filed an action against the defendant for partition of
property. While the action was pending, the defendant died.
• Recall that partition is an action which survives.
Defendant’s lawyer failed to inform the court about the
plaintiff's death so, with that, there was no proper substitution.
Later, judgment was rendered against the deceased defendant.
But after the decision came out, the lawyer of the defendant
filed a notice of appeal in accordance with Rule 41.
The Supreme Court ruled, in essence, that the appeal was not
properly made. Upon the death of the defendant, counsel’s
authority to represent him already expired. Thus, the notice of
appeal which the lawyer filed on behalf of the deceased was
an unauthorized pleading, and therefore not valid.
Section 6. Record on appeal; form and contents thereof. — The
full names of all the parties to the proceedings shall be stated in
the caption of the record on appeal and it shall include the
judgment or final order from which the appeal is taken and, in
chronological order, copies of only such pleadings, petitions,
motions and all interlocutory orders as are related to the
appealed judgment or final order for the proper understanding
of the issue involved, together with such data as will show that
the appeal was perfected on time. If an issue of fact is to be
raised on appeal, the record on appeal shall include by reference
all the evidence, testimonial and documentary, taken upon the
issue involved. The reference shall specify the documentary
evidence by the exhibit numbers or letters by which it was
identified when admitted or offered at the hearing, and the
testimonial evidence by the names of the corresponding
witnesses. If the whole testimonial and documentary evidence
in the case is to be included, a statement to that effect will be
sufficient without mentioning the names of the witnesses or the
numbers or letters of exhibits. Every record on appeal exceeding
twenty (20) pages must contain a subject index. (6a)
DISCUSSION
Contents of record on appeal
1. The full names of all the parties (to be stated in the
caption)
• Remember that the title of the case will not
change (plaintiff v defendant; still Maja v Pia
not Pia v Maja)
2. The judgment or final order from which the appeal is
taken;
3. Copies of only pleadings, petitions, motions and all
interlocutory orders as are related to the appealed
judgment or final order for the proper understanding of
the issue involved;
127
• You don’t need to raise all issues, only a certain
portion of it will be questioned before the court
of appeals here.
• Q: What’s the effect of that?
A: Not all records in the RTC, for example,
should be transferred to the CA.
4. Such data as will show that the appeal was perfected on
time; It is stated in your notice of appeal that the appeal
was properly filed at the proper time within the period
fixed by law.
5. If an issue of fact is to be raised on appeal, a reference to
all the evidence, testimonial and documentary, taken
upon the issue involved;
• In such case, the reference shall specify the
documentary evidence by the exhibit numbers
or letter by which it was identified when
admitted or offered at the hearing, and the
testimonial evidence by the names of the
witnesses.
• If all the evidence in the case is to be included,
a statement to that effect will be sufficient
without mentioning the names of the witnesses
or the numbers of letters of exhibits. It is
sufficient to make a statement that all of the
evidence are already included in the record. If
it exceeds what is on your record of appeal of
20 pages, there is a need to make a subject
index. It is quite tiring making an appeal.
6. A subject index if the record on appeal exceeds twenty
(20) pages.
Section 7. Approval of record on appeal. — Upon the filing of the
record on appeal for approval and if no objection is filed by the
appellee within five (5) days from receipt of a copy thereof, the
trial court may approve it as presented or upon its own motion
or at the instance of the appellee, may direct its 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. If the trial court orders the amendment
of the record, the appellant, within the time limited in the order,
or such extension thereof as may be granted, or if no time is
fixed by the order within ten (10) days from receipt thereof, shall
redraft the record by including therein, in their proper
chronological sequence, such additional matters as the court
may have directed him to incorporate, and shall thereupon
submit the redrafted record for approval, upon notice to the
appellee, in like manner as the original draft. (7a)
DISCUSSION
Take note under Section 7 as compared to a notice of appeal where
you’re simply giving notice, exercising your right to appeal by
ordinary appeal, by way of notice of appeal, the record on appeal
still needs to be approved before it is transmitted to the appellate
court.
If, for example, your record on appeal is lacking, you will be ordered
to amend your record on appeal. It will be redrafted and then if
approved, that will be transmitted to the appellate court.

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
The appellee can object on the record on appeal. Take note that
when the appellee objects to the record on appeal, the court may
simply direct the amendment by the inclusion of the omitted
matters which are deemed essential to the determination of the
issue of law or fact involving the appeal.
Q: Why give the appellee (prevailing party) the right to object or
comment?
A: Because if you leave that to the discretion of the appellant, he
will only submit those records or evidence in favor of him. This is
because he is not required to submit all the records. It is just proper
that the appellee is given the opportunity to look at the record on
appeal and then propose to the court to include his evidence on the
case.
Section 8. Joint record on appeal. — Where both parties are
appellants, they may file a joint record on appeal within the time
fixed by section 3 of this Rule, or that fixed by the court. (8a)
DISCUSSION
The situation here is both the plaintiff and the defendant are
aggrieved by the decision. For example, the court in an eminent
domain case declared that the taking is proper. The defendant is
aggrieved because he does not want his property expropriated. The
plaintiff may also be aggrieved if, for example, the court required
an exorbitant amount as deposit.
The case is not yet over, we are still in the stage where the
declaration whether the taking is proper. Not yet the stage where
there is determination of just compensation, when you appeal,
there is a need for a record on appeal. This is what is discussed in
the Marinduque Mining v CA case. It was discussed that if
everything is already resolved, there is no need for a record on
appeal, if not yet resolved, then there is a need for a record on
appeal.
The plaintiff and the defendants are not satisfied by the order of
the court so far. What they can do next is for them to appeal. The
appellate court can take note that even the 2 of them appealed,
only 1 record of appeal may be submitted. They can agree to
transmit a joint record on appeal and the costs on making that joint
appeal can be shared by the 2 of them
Take note that, while they might both appeal, the appellate court
would only require one record on appeal. Thus, both plaintiff and
defendant can agree to transmit a joint record on appeal and even
share the costs.
PERFECTION OF APPEAL
Section 9. Perfection of appeal; effect thereof. — A party's
appeal by notice of appeal is deemed perfected as to him upon
the filing of the notice of appeal in due time.
A party's appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over
the case upon the perfection of the appeals filed in due time and
the expiration of the time to appeal of the other parties.
128
In appeals by record on appeal, the court loses jurisdiction only
over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the
appeal of the other parties.
In either case, prior to the transmittal of the original record or
the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with 2 of Rule 39, and
allow withdrawal of the appeal. (9a)
DISCUSSION
When appeal is deemed perfected:
§ A party’s appeal by notice of appeal is deemed perfected
as to him upon the filing of the notice of appeal in due
time.
§ A party’s appeal by record on appeal is deemed
perfected as to him with respect to the subject matter
thereof upon the approval of the record on appeal filed
in due time.
o It is important that the appeal is filed and
subsequently approved. At that point, the
appeal is already perfected as to the appellant
Q: Why is this important? That the appeal is deemed perfected as
to the appellant?
A: It is important because:
The court can’t do anything if it is already bereft of jurisdiction. It
cannot anymore act on the case.
As an exception to that, take note:
• In appeals by record on appeal, the court loses jurisdiction only
over the subject matter thereof (the appealed issue only and
the remainder of the issue, the court has jurisdiction) upon the
approval of the records on appeal filed in due time and the
expiration of the appeal of the other parties.
Q: Why does jurisdiction is removed from the court if the case is
already appealed?
A: to avoid the pre-emption of the judgment f the appellate court
In either case, the court retains residual jurisdiction under the last
paragraph.
RESIDUAL JURISDICTION
Residual jurisdiction refers to the authority of the trial court to issue
orders for the protection and preservation of the rights of the
parties which do not involve an matter litigated by the appeal; to
approve compromises (if the appeal is not yet perfected. Or the
court has not lost total jurisdiction yet, it can still approve
compromise); to admit appeals by indigent litigants; to order
execution pending appeal in accordance with section 2, Rule 39;

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
and to allow withdrawal of the appeal, provided these are done
prior to the transmittal of the original record or the record on
appeal, even if the appeal has already been perfected or despite
the approval of the record on appeal or in case of a petition for
review under Rule 42, before the CA gives due course to the
petition.
DISCUSSION
This was how the SC explained residual jurisdiction. These are
things that the court can still do notwithstanding the fact that there
is already appeal that has been taken.
Take note that residual jurisdiction is important. This is how the SC
explained it in this case of DBP versus Carpio. This is actually a
Davao City case that started with a replevin.
DBP VS. CARPIO
GR no. 195450|February 1, 2017
The “residual jurisdiction” of the trial court is available at a stage
in which the court is normally deemed to have lost jurisdiction
over the case or the subject matter involved in the appeal. This
stage is reached upon the perfection of the appeals by the
parties or upon the approval of the records on appeal, but prior
to the transmittal of the original records or the records on
appeal. In either instance, the trial court still retains its so called
residual jurisdiction to issue protective orders, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal and allow the withdrawal of the
appeal.
From the foregoing it is clear that before the trial court can be
said to have residual jurisdiction over a case, a trial on the merits
must have been conducted; the court rendered judgement; and
the aggrieved party appealed therefrom.
In this case, there was no trial on the merits as the case was
dismissed due to improper venue and respondents could not
have appealed the order of dismissal as the same was a
dismissal, without prejudice. Section 1(h), Rule 41 states that no
appeal may be taken from an order dismissing an action without
prejudice. Indeed, there is no residual jurisdiction to speak of
where no appeal has even been filed.
Here, the RTC dismissed the replevin case on the ground of
improper venue. Such dismissal is one without prejudice and
does not bar the refiling of the same action; hence, it is not
appealable. Clearly, the RTC did not reach, and could not have
reached the residual jurisdiction stage as the case was dismissed
due to improper venue and such order of dismissal could not be
subject of an appeal. Without the perfection of an appeal, let
alone the unavailability of the remedy of appeal, the RTC did not
acquire residual jurisdiction. Hence, it is erroneous to conclude
that the RTC may rule on DBP’s application for damages
pursuant to its residual powers.
DISCUSSION
Once you were already able to transmit records to the appellate
court, that appellate court can already on that case on appeal upon
transmittal of the original records or if its only partial, records on
appeal.
129
Judge Carpio of Branch 16 RTC did not award damages. There are
damages that can be awarded for wrongful replevin. You will learn
that when you reach third year, in provisional remedies and special
civil actions.
There is no jurisdiction when there is no appeal. Very beautiful. This
will most likely come out in the bar. This case is important.
EFFECT OF PERFECTION OF THE APPEAL AND THE TRANSMITTAL
OF THE RECORDS
The trial court loses jurisdiction over the case. Henceforth, it may
no longer grant a motion for or issue a writ of immediate execution.
To do so would be an abuse of discretion. (Diesel Construction Co.
Inc. vs Jollibee Foods GR No. 136805, January 28,2000).
Section 10. Duty of clerk of court of the lower court upon
perfection of appeal. — Within thirty (30) days after perfection
of all the appeals in accordance with the preceding section, it
shall be the duty of the clerk of court of the lower court:
a) To verify the correctness of the original record or the
record on appeal, as the case may be aid to make
certification of its correctness;
b) To verify the completeness of the records that will be,
transmitted to the appellate court;
c) If found to be incomplete, to take such measures as may
be required to complete the records, availing of the
authority that he or the court may exercise for this
purpose; and
d) To transmit the records to the appellate court.
* Just take note of the codal provision.
Section 11. Transcript. — Upon the perfection of the appeal, the
clerk shall immediately direct the stenographers concerned to
attach to the record of the case five (5) copies of the transcripts
of the testimonial evidence referred to in the record on appeal.
The stenographers concerned shall transcribe such testimonial
evidence and shall prepare and affix to their
transcripts an index containing the names of the witnesses and
the pages wherein their testimonies are found, and a list of the
exhibits and the pages wherein each of them appears to have
been offered and admitted or rejected by the trial court. The
transcripts shall be transmitted to the clerk of the trial court
who shall thereupon arrange the same in the order in which the
witnesses testified at the trial, and shall cause the pages to be
numbered consecutively. (12a)
Section 12. Transmittal. — The clerk of the trial court shall
transmit to the appellate court the original record or the
approved record on appeal within thirty (30) days from the
perfection of the appeal, together with the proof of payment of
the appellate court docket and other lawful fees, a certified true
copy of the minutes of the proceedings, the order of approval,
the certificate of correctness, the original documentary
evidence referred to therein, and the original and three (3)
copies of the transcripts. Copies of the transcripts and certified
true copies of the documentary evidence shall remain in the
lower court for the examination of the parties. (11a)
DISCUSSION
Which means that the appellate dockets fees are not to be paid
with the CA but the RTC since these will be transmitted by the RTC.
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Section 13. Dismissal of appeal. — Prior to the transmittal of the
original record or the record on appeal to the appellate court,
the trial court may motu propio or on motion dismiss the appeal
for having been taken out of time. (14a)
DISCUSSION
It’s so simple to file a notice of appeal but you were not able to file
within 15 days, that is already taken out of time.
Now let’s already go to rule 42 because we’re already done with
rule 40 and 41.
RULE 42
PETITION FOR REVIEW FROM THE RTC TO THE CA
Section 1. How appeal taken; time for filing. — A party desiring
to appeal from a decision of the Regional Trial Court rendered
in the exercise of its appellate jurisdiction may file a verified
petition for review with the Court of Appeals, paying at the
same time to the clerk of said court the corresponding docket
and other lawful fees, depositing the amount of P500.00 for
costs, and furnishing the Regional Trial Court and the adverse
party with a copy of the petition. The petition shall be filed and
served within fifteen (15) days from notice of the decision
sought to be reviewed or of the denial of petitioner's motion for
new trial or reconsideration filed in due time after judgment.
Upon proper motion and the payment of the full amount of the
docket and other lawful fees and the deposit for costs before
the expiration of the reglementary period, the Court of Appeals
may grant an additional period of fifteen (15) days only within
which to file the petition for review. No further extension shall
be granted except for the most compelling reason and in no case
to exceed fifteen (15) days. (n)

SUMMARY: HOW APPEAL IS TAKEN UNDER RULE 42

SUBJECT MATTER A judgement or decision of the
RTC rendered in the exercise of
its appellate jurisdiction (i.e.,
MTC to RTC to CA).
MODE OF APPEAL Verified petition for review
PARTIES In Rule 41, the parties are the
appellant and the appellee.

In Rule 42, the parties are the

petitioner and the respondent.

While it is copy furnished, the RTC

PERIOD
EXTENSION OF PERIOD
SECOND EXTENSION
is not a party.
Within 15 days from notice of the
decision sought to be reviewed or
of the denial of petitioner’s
motion for new trial or
reconsideration
Extendible provided there is a
motion, the full amount of the
docket and other lawful fees and
deposit for costs is paid and both
motion and payment is made
within the original 15 day period.
No further extension is granted
except for the most compelling
reason in no case to exceed 15
days.

DISCUSSION
Q: How many petitions for review under the RoC?
A: There are 3.
• Rule 42 – Petitions for Review RTC-CA, exercise of
appellate jurisdiction
• Rule 43 – Quasi-judicial bodies to the CA
• Rule 45 – Appeal by certiorari or petition for review
on Certiorari

Q: Take note, between notice of decision sought to be reviewed

and notice of the petitioners motion for new trial or

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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
reconsideration, which one would prevail in determining the 15
days?
A: The one that will prevail will be the motion for new trial or
reconsideration based on NEYPES v. CA – fresh period rule, your 15
days will be counted from the denial of your motion for new trial or
reconsideration.
Q: What happens if your petition for review will not push through?
A: You can no longer get back the docket fees paid. It is non-
refundable.
No further extension is granted except for the most compelling
reason and in no case to exceed 15 days.
Take note that in a petition for review, everything is there already
there. In a way, it’s as tedious as a record on appeal. Rule 42 and 43
are just similar.
Again, motion for new trial or reconsideration is allowed.
Before filing a petition for review under Rule 42, the aggrieved
party is specifically allowed to file either a motion for new trial or
reconsideration. The rule applies also to ordinary appeals under
Rules 40 and 41.
• You can really file a motion for reconsideration. It
gives the court the ability to correct its own error,
without having to appeal.
However, take note that under Rule 40, the filing of a motion for
reconsideration is a prohibited pleading if the case is tried under
Summary Rules (i.e. forcible entry, unlawful detainer).
Take note that a motion for reconsideration is a prohibited pleading
there. Your remedy will be to file an appeal. You will learn under
special civil actions, that judgements in forcible entry and unlawful
detainer are immediately executory, although you can appeal.
You will have to undergo through a lot if you will appeal a forcible
entry or unlawful detainer case.
SPS. EDILLO VS. SPS. DULPINA
GR No. 188360|January 21, 2010
Section 19(c) of the Rules of summary Procedure and Section 13c
of Rule 70 of the Rules of Court consider a motion for
reconsideration of a judgement a prohibited pleading. Thus, when
the plaintiffs-respondents filed on June 5, 2007 a Motion for
Reconsideration of the MCTC Judgement, the motion did not stop
the running of the period for appeal. With the continuous running
of this period, the MCTC judgement had long lapsed to finality when
the plaintiffs-respondents filed their Notice of Appeal on July 30,
2007. The lapse of the period for appeal rendered the RTC without
any jurisdiction to entertain, much less grant, the plaintiffs-
respondents’ appeal from the final and immutable MCTC
judgement.
DISCUSSION
It is possible that your right to appeal will be foreclosed because
you do not understand the rules. For summary rules, you cannot
file a motion for reconsideration.
Again, a motion for reconsideration is a prohibited pleading under
the Rules of Summary Procedure.
131
It is possible that you filed a motion for reconsideration thinking
that the time to file an appeal will stop, - BUT IT’S NOT! IT
CONTINUES TO RUN. So the MTC judgement has elapsed to finality
when the plaintiffs-respondents filed their Notice of Appeal.
ATTY JZE’S STORY/ADVICE/SCENARIO
They lost. It was a summary case (forcible entry or unlawful
detainer). The opposing counsel filed for an MR. As the winning
counsel, I will just keep it to myself that it was wrong. I will not alert
the other counsel for this mistake. So by the time his MR is going to
be denied or granted, I will not comment, its up to Court. I will not
even the due respect of a comment.
It being a MR, most likely the Court will not grant it since it is most
probable for it not to reconsider its judgment. By the time the MR
is already denied, the period to file an appeal has already expired.
They will file a notice of appeal, I will file a motion to expunge the
said notice of appeal as the same went beyond its reglementary
period. The other will not be able to appeal anymore. – I WON!
FORMAL REQUIREMENTS
Section 2. Form and contents – The petition shall be filed in seven
(7) legible copies, with the original copy intended for the court
being indicated as such by the petitioner, and shall:
(a) state the full names of the parties to the case, without
impleading the lower courts or judges thereof either as
petitioners or respondents;
(b) indicate the specific material dates showing that it was filed on
time;
(c) set forth concisely a statement of the matters involved, the
issues raised, the specification of errors of fact or law, or both,
allegedly committed by the Regional Trial Court, and the
reasons or arguments relied upon for the allowance of the
appeal;
(d) be accompanied by clearly legible duplicate originals or true
copies of the judgments or final orders of both lower courts,
certified correct by the clerk of court of the Regional Trial
Court, the requisite number of plain copies thereof and of the
pleadings and other material portions of the record as would
support the allegations of the petition.
DISCUSSION
Just take note of this provision for the form and contents.
SUMMARY OF FORMAL REQUIREMENTS
NUMBER OF COPIES
Seven (7) legible copies, with the original copy intended for the
court being indicated as such by the petitioner.
REQUIRED STATEMENTS:
1.) The full names of the parties, without impleading the lower
courts or judges thereof either as petitioners or respondents;
2.) The specific material dates showing that it was filed on time
(MATERIAL DATA RULE);
3.) In a concise form, the matters involved, the issues raised, the
specification of errors of fact or law, or both, allegedly
committed by the RTC.
4.) The reasons or arguments relied upon for the allowance of the
appeal.
REQUIRED ATTACHMENTS:

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From the Discussion of Atty. Jess Zachael Espejo
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1.) Clearly legible duplicate originals or true copies of the
judgments or final orders of both lower courts, certified
correct by the clerk of court of the RTC, the requisite number
of plain copies thereof and of the pleadings and other material
portions of the record as would support the allegations of the
petition;
• These are required in order for the Court of Appeals
to determine whether or not the petition should be
given due course. It will be denied due course if the
petition, as borne out by the records is bereft of
evidentiary foundation.
• Meaning, your appeal has no merit. Why should I
give due course to that if I am the Court of Appeals.
2.) Verification; and
3.) Certification against forum shopping.
EFFECT OF FAILURE TO COMPLY:
Section 3. Effect of failure to comply with requirements. – The
failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other
lawful fees, the deposit for costs, proof of service of the petition,
and the contents of and the documents which should accompany
the petition shall be sufficient ground for the dismissal thereof.
DISCUSSION
If you will fail in complying the requirements in Section 2, you are
“GOODBYE PHILIPPINES”; You basically cannot do anything,
because an appeal by Petition for Review under Rule 42 which
presupposes that you are already given the chance. A filing of
appeal after going from MTC, to RTC then so on, is more of a
privilege. It’s a matter of court discretion.
So for example, you did not comply, the CA can dismiss the petition.
YUKI, JR. VS. CO
G.R. No. 178527 | November 27, 2009
Section 2 of Rule 42 does not require that ALL the pleadings and
documents filed before the lower courts must be attached as
annexes to the petition. XXX As to what these pleadings and
material portions of the record are, the Rules grants the petitioner
sufficient discretion to determine the same. This discretion is of
course subject to CA’s evaluation whether the supporting
documents are sufficient to make out a prima facie case. Thus,
Section 3 empowers the CA to dismiss the petition where the
allegations contained therein are utterly bereft of evidentiary
foundation.
DISCUSSION
Again, the appeal will have no merit. Hence the CA can dismiss it.
SPOUSES ESPEJO VS. ITO
G.R. No. 176511, August 4, 2009
Submission of a document together with the motion for
reconsideration constitutes substantial compliance with the
requirement that relevant or pertinent documents be submitted
along with the petition, and calls for the relaxation of procedural
rules. (x x x)
DISCUSSION
132
What happened here is that the CA dismissed the Petition for
Review under Rule 42, because the complaint for unlawful detainer
before the MTC was not attached.
So it reached the RTC, then the CA for appeal by Petition for Review,
the complaint for unlawful detainer was not submitted. So it was
dismissed summarily due to the violation of Section 2 in connection
to Section 3.
But take note, he filed a MR. In his MR, he attached the complaint
for unlawful detainer. So the SC said it is already enough as
substantial compliance.
(x x x)
Moreover, under Section 3(d), Rule 3 of the RIRCA (Revised Internal
Rules of Court of Appeals), the CA is with authority to require the
parties to submit additional documents as may be necessary to
promote the interests of substantial justice. Therefore, the
appellate court, instead of dismissing outright the Petition, could
just as easily have required petitioners to submit the necessary
document, i.e., a copy of petitioners’ Complaint for Unlawful
Detainer filed with the MeTC.
DISCUSSION
So it will really depend on the CA. If the CA exercises its discretion
literally, it can require the submission. But again, you cannot blame
the CA if it did not give due course to the petition, and dismiss the
case. This is because according to Section 3 calls for the summary
dismissal of the petition. It will really depend on the CA.
There might be cases, however, saying that the CA should have not
dismissed the petition. There are also cases where the SC affirms
the decision of the CA in summarily dismissing the same for failing
to attached the pertinent requirements. It is really a case-to-case
basis.
HOWEVER, I WANT YOU TO REMEMBER THIS:
GUIDEPOSTS IN DETERMINING THE NECESSITY OF ATTACHING
PLEADINGS AND PORTIONS OF THE RECORD
• FIRST, not all pleadings and parts of case records are required
to be attached to the petition. Only those which are relevant
and pertinent must accompany it. The test of relevancy is
whether the document in question will support the material
allegations in the petition, whether said document will make
out a prima facie case of grave abuse of discretion as to
convince the court to give due course to the petition.
o This is also applicable to Rule 65.
• SECOND, even if a document is relevant and pertinent to the
petition, it need not be appended if it is shown that the
contents thereof can also be found in another document
already attached to the petition. Thus, if the material
allegations in a position paper are summarized in a questioned
judgment, it will suffice that only a certified true copy of the
judgment is attached.
• THIRD, a petition lacking an essential pleading or part of the
case record may still be given due course or reinstated (if
earlier dismissed) upon showing that petitioner later
submitted the documents required, or that it will serve the
higher interest of justice that the case be decided on the
merits. (GALVEZ VS. COURT OF APPEALS, G.R. NO. 157445,
APRIL 3, 2013) [en banc case – remember this!]

CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
o So there is still that substantial compliance as
mentioned in Spouses Espejo case.
ERRORS OF FACT OR LAW OR BOTH
ERRORS OF FACT OR LAW OR BOTH
Errors of fact and errors of law, or both, may be raised under Rule
42. Recall that the Supreme Court has original jurisdiction to hear
cases decided by the RTC when only pure questions of law are
involved. That’s what is our Rule 45.
Q: Does this apply to pure questions of law in cases decided by the
RTC either affirming or reversing the MTC on appeal? In other
words, can rule 45 be invoked to assail an RTC’s appellate
judgment on pure questions of law?
A: As a general rule, NO!
The power to hear cases on appeal in which only questions of law
are raised is not vested exclusively in the Supreme Court
(INTRAMUROS ADMINISTRATION VS. OFFSHORE CONSTRUCTION
DEVELOPMENT CO., G.R. NO. 196795, MARCH 7, 2018). A petition
for review under Rule 42 may include questions of fact, of law, or
mixed questions of fact and law. Direct resort to the Supreme Court
under Rule 45, instead of to the Court of Appeals under Rule 42 for
intermediate review violates the principle of hierarchy of courts.
Thus, where review of the RTC’s decision rendered in the exercise
of its appellate jurisdiction is on pure questions of law, resort
should be made before the Court of Appeals under Rule 42.
Conversely, where review of the RTC’s decision rendered in the
exercise of its original jurisdiction is on pure questions of law, direct
resort to the Supreme Court may be had under Rule 45.
In sum, it may be said that the filing of a Rule 45 petition instead of
one under Rule 42 violates the doctrine of hierarchy of Courts.
Thus, where an exception to the doctrine is present, a Rule 45
petition to the SC may be successfully filed instead of a Rule 42
petition to the CA.
• Basis: The Intramuros case which affirmed this case of
Barcenas vs. Spouses Tomas, March 31, 2005.
BARCENAS v. SPS. TOMAS
G.R. No. 150321, March 31, 2005
Under the principle of the hierarchy of courts, decisions, final
orders or resolutions of an MTC should be appealed to the RTC
exercising territorial jurisdiction over the former. On the other
hand, RTC judgments, final orders or resolutions are appealable
to the CA through either of the following: an ordinary appeal if
the case was originally decided by the RTC; or a petition for
review under Rule 42, if the case was decided under the RTC’s
appellate jurisdiction.
Nonetheless, a direct recourse to this Court can be taken for a
review of the decisions, final orders or resolutions of the RTC,
but only on questions of law. XXX
Procedurally then, petitioners could have appealed the RTC
decision affirming the MTC:
1. to this court on questions of law only; or
2. If there are factual questions involved to the CA.
DISCUSSION
133
So it is allowed, that even in the exercise of its appellate jurisdiction,
you question the RTC decision on pure question of law, you can use
rule 45 before the Supreme court, that is what you need to
remember, Barcenas vs. Sps. Thomas, as reiterated in Intramuros
administration vs. Offshore Construction Development.
Section 4. Action on the petition. — The Court of Appeals may
require the respondent to file a comment on the petition, not a
motion to dismiss, within ten (10) days from notice, or dismiss
the petition if it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the questions raised
therein are too insubstantial to require consideration.
DISCUSSION
Nothing much there, just take note that the CA may dismiss the
petition if it finds that the same is patently without merit,
prosecuted manifestly for delay, or the questions raised therein are
too insubstantial to require consideration or de minimis non curat
lex - the law does not deal with triffles.
Section 5. Contents of comment. — The comment of the
respondent shall be filed in seven (7) legible copies,
accompanied by certified true copies of such material portions
of the record referred to therein together with other supporting
papers and shall (a) state whether or not he accepts the
statement of matters involved in the petition; (b) point out such
insufficiencies or inaccuracies as he believes exist in petitioner's
statement of matters involved but without repetition; and (c)
state the reasons why the petition should not be given due
course. A copy thereof shall be served on the petitioner.
DISCUSSION
You only need this if you need to file a comment.
*This may be asked but merely codal
as there is nothing much here.
Section 6. Due course. — If upon the filing of the comment or
such other pleadings as the court may allow or require, or after
the expiration of the period for the filing thereof without such
comment or pleading having been submitted, the Court of
Appeals finds prima facie that the lower court has committed an
error of fact or law that will warrant a reversal or modification
of the appealed decision, it may accordingly give due course to
the petition.
Section 7. Elevation of record. — Whenever the Court of
Appeals deems it necessary, it may order the clerk of court of
the Regional Trial Court to elevate the original record of the case
including the oral and documentary evidence within fifteen (15)
days from notice.
Section 8. Perfection of appeal; effect thereof. — (a) Upon the
timely filing of a petition for review and the payment of the
corresponding docket and other lawful fees, the appeal is
deemed perfected as to the petitioner.
The Regional Trial Court loses jurisdiction over the case upon
the perfection of the appeals filed in due time and the expiration
of the time to appeal of the other parties.
However, before the Court of Appeals gives due course to the
petition, the Regional Trial Court may issue orders for the
protection and preservation of the rights of the parties which do
 134
CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

not involve any matter litigated by the appeal, approve therefrom, the appellate court in its discretion may make
compromises, permit appeals of indigent litigants, order an order suspending, modifying, restoring or granting the
execution pending appeal in accordance with section 2 of Rule injunction, receivership, accounting, or award of support.
39, and allow withdrawal of the appeal.

(b) Except in civil cases decided under the Rule on Summary Section 9. Submission for decision. — If the petition is given due
Procedure, the appeal shall stay the judgment or final order course, the Court of Appeals may set the case for oral argument
unless the Court of Appeals, the law, or these Rules shall provide or require the parties to submit memoranda within a period of
otherwise. fifteen (15) days from notice. The case shall be deemed
submitted for decision upon the filing of the last pleading or
DISCUSSION memorandum required by these Rules or by the court itself.
This is more or less the same with rule 41 section 9.
DISTINCTIONS OF RULE 41 AND RULE 42.
PERFECTION OF APPEAL
The appeal is deemed perfected as to the petitioner upon the DISTINCTIONS RULE 41 RULE 42
timely filing of a petition for review and the payment of the RTC Jurisdiction Original Appellate
corresponding docket and other lawful fees. appealed from
What must be filed Notice of Appeal Petition for Review
EFFECT OF PERFECTION or Notice of
The Regional Trial Court loses jurisdiction over the case upon the appeal with
perfection of the appeals filed in due time and the expiration of the record on appeal
time to appeal of the other parties. as the case may
be.
RESIDUAL JURISDICTION Period to Appeal 15 or 30 days 15 days
Before the Court of Appeals gives due course to the petition, the Extensions For notice of Extendible but
RTC may issue orders for the protection and preservation of the appeal, not requisites must be
rights of the parties which do not involve any matter litigated by extendible; but complied with.
the appeal, approve compromises, permit appeals of indigent for record on
litigants, order execution pending appeal in accordance with appeal,
section 2 of Rule 39, and allow withdrawal of the appeal. extendible.
Applicability of Applicable
If a petition for review was filed under rule 42, that has the effect of Neypes Ruling
automatically staying the judgment or final order meaning, it Parties Appellant and Petition and
cannot be executed. Appellee Respondent. The
RTC is copy
Q: Is that in rule 40, rule 41, or in rule 65 certiorari? furnished but not
A: No, it is only in Rule 42 which is impressive in the sense, it is only impleaded.
a petition for review before the Court of appeals.
Perfection Upon filing Upon filing and
payment of fess
IMPORTANT EFFECT
Reckoning of Until the Until the Court of
Except in civil cases decided under the Rule on Summary Procedure,
Residual transmittal of the Appeals gives due
the appeal shall stay the judgment or final order unless the CA, the
Jurisdiction original record or course to the
law, or these Rules shall provide otherwise. Note that under the
the record on petition.
Rules on Summary Procedure:
appeal.
Due Course Appeal is given Appeal is not
Rules on Summary Procedure, Section 21. Appeal. - The due course automatically given
judgment or final order shall be appealable to the provided that it is due course with
appropriate regional trial court which shall decide the filed on time and such filing and
same in accordance with Section 22 of BP 129. The the proper fees payment.
decision of the RTC in civil cases governed by this Rule, are paid. Refer to section 6.
shall be immediately executory, without prejudice to a
Nature of Appeal Filing of notice of Filing of petition is
further appeal that may be taken therefrom. Section 10 of appeal is a matter a matter of
Rule 70 shall be deemed repealed. of right. discretion.

“…unless the Court of Appeals, the law, or these Rules shall READ THE FF. CASES:
provide otherwise…”
• Heirs of Garcia v. Municipality of Iba, Zambales (G.R. No.
Rule 39, section 4. Judgments not stayed by appeal. - 162217, July 22, 2015)
Judgment in actions for injunction, receivership, • Barangay Sangalang v. Barangay Maguihan (G.R. No.
accounting and support, and such other judgments as are 159792, December 23, 2009)
now or may hereafter be declared to be immediately
executory, shall be enforceable after their rendition and
shall not, be stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court. On appeal
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 42
PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS
TO THE COURT OF APPEALS
*Compiled and Updated by: JZE and LCYE
Section 1. How appeal taken; time for filing. — A party desiring
to appeal from a decision of the Regional Trial Court rendered
in the exercise of its appellate jurisdiction may file a verified
petition for review with the Court of Appeals, paying at the
same time to the clerk of said court the corresponding docket
and other lawful fees, depositing the amount of P500.00 for
costs, and furnishing the Regional Trial Court and the adverse
party with a copy of the petition. The petition shall be filed and
served within fifteen (15) days from notice of the decision
sought to be reviewed or of the denial of petitioner's motion for
new trial or reconsideration filed in due time after judgment.
Upon proper motion and the payment of the full amount of the
docket and other lawful fees and the deposit for costs before
the expiration of the reglementary period, the Court of Appeals
may grant an additional period of fifteen (15) days only within
which to file the petition for review. No further extension shall
be granted except for the most compelling reason and in no case
to exceed fifteen (15) days. (n)
APPEAL UNDER RULE 42
Under Rule 42, Section 1 or the Rules of Court, the remedy from an
adverse decision rendered by a Regional Trial Court exercising its
appellate jurisdiction is to file a verified petition for review with the
Court of Appeals (Intramuros Administration v. Offshore
Construction, G.R. No. 196795, March 7, 2018).
Section 1 may be summarized as follows:
1. SUBJECT MATTER – The subject matter of the petition brought
before the Court of Appeals is a judgement or decision of the
RTC rendered in the exercise of its appellate jurisdiction (i.e.,
MTC to RTC to CA).
2. MODE TO APPEAL - Appeal is taken by a verified petition for
review.
3. PERIOD FOR FILING – The petition must be filed within 15 days
from notice of the decision sought to be reviewed or of the
denial of petitioner’s motion for new trial or reconsideration
filed in due time after judgement.
4. PARTIES – The designation of parties is different compared to
Rule 41. In Rule 41, the parties are the appellant and the
appellee. Under Rule 42, the parties are the petitioner and the
respondent . Copy furnished with copies of the petition are the
RTC and the adverse party. Take note that, while it is copy
furnished, the RTC is not a party.
5. EXTENSION OF PERIOD – The 15-day period is extendible
provided the following requisites are present:
a. There must be a motion;
b. The full amount of the docket and other lawful fees and
deposit for costs must have been paid;
c. The filing of the motion and payment must have been
made within the original 15-day period.
6. SECOND MOTION FOR EXTENSION – After the period within
which to fila a petition for review has been extended, no
135
further extension shall be granted except for the most
compelling reason and in no case to exceed 15 days.
EXTENSION FOR PERIOD
BOARDWALK BUSINESS VENTURES, INC. v. VILLAREAL, ET AL.
G.R. No. 181182, April 10, 2013
Boardwalk sought an extension of 30 days within which to file
its Petition for Review with the CA. This is not allowed. Section 1
of Rule 42 allows an extension of only 15 days. “No further
extension shall be granted except for the most compelling
reason.” Boardwalk never cited any compelling reason.
Boardwalk’s appeal was not perfected because of its failure to
timely file the Petition and to pay the docket and other lawful
fees before the proper court which is the CA. The perfection of
an appeal in the manner and within the period set by law is not
only mandatory but jurisdictional as well, hence, failure to
perfect the same, renders the judgement final and executory.
COMPELLING REASON; SECOND EXTENSION
MAGAT, ET AL. v. TANTRADE CORP.
G.R. No. 205483, August 23, 2017
FACTS: A complaint for collection of sum of money filed by
Tantrade Corporation against now deceased Juliana S. Magat.
Ultimately, the MTC found Juliana liable to pay Tantrade but
ordered Borja, an impleaded third party defendant to reimburse
Juliana the amount she was ordered to pay Tantrade. The RTC
affirmed in toto the MTC’s decision. Petitioners filed their
Urgent Motion for Extension of Time to File Petition for Review
under Rule 42 in the CA, one day before the lapse of the 15-day
period. They justified their First Motion for Extension by citing
financial constraints. They explained that they were still reeling
from expenses due to the long hospitalization and death of
Juliana, and thus, could not immediately finance their appeal.
Petitioners’ counsel further stated that petitioners’ inability to
finance their appeal had also prevented him from timely
preparing the Petition for Review. Despite their declared
financial difficulties, petitioners manages to pay the docket and
other fees and to make a deposit for costs, as required for a
Petition for Review under Rule 42. These were done alongside
the filing of their First Motion for Extension.
In its assailed May 31, 2011 Resolution, the Court of Appeals
denied the First Motion for Extension. It faulted petitioners for
“procrastination” as they filed a motion for extension a day
before the end of the reglementary period. On June 6, 2011, or
2 days before the expiration of the 15-day extension that
petitioners originally prayed for in the First Motion for Extension
of Time (Second Motion for Extension). They had not yet
received a copy of the assailed Court of Appeals May 31, 2011
Resolution by this time. They sought another 15-day extension,
or until June 23, 2011, to file their Petition for Review. Petition
for Review under Rule 42. Petitioners’ counsel explained that
petitioners remained hard-pressed with their finances. On June
22, 2011, a day before the end of the second 15-day extension
they prayed for, petitioners filed with the Court of Appeals their
Petition for Review under Rule 42. Their second motion for
extension was denied and the appeal was dismissed.
ISSUE: Whether or not the Court of Appeals committed a
reversible error in denying the extensions sought by petitioners
and in dismissing their appeal.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULING: It is evident from the last two sentences of Section 1
that motions for extension to file Rule 42 petitions are
permissible.
Rule 42 takes a particularly liberal stance with regard to the
period for filing petitions. It explicitly enables extensions, while
other modes of appeal do not. In contrast with Rule 42, Rule 40,
or the rules on appeals to the Regional Trial Courts from the
Municipal Trial Courts, and Rule 41, or the rules on appeals to
the Court of Appeals of decisions of the Regional Trial Courts
rendered in the exercise of their original jurisdiction, make no
similar reference to any extension to file such appeals. They
even proscribe motions for extension to file motions for new
trial or reconsideration.
Rule 42 enables not just one (1) but two (2) extensions of 15 days
each. An initial extension may be given, provided that it is sought
through a proper motion, docket and lawful fees are paid, and a
deposit for costs is made before the expiration of the
reglementary period. After this initial extension, Rule 42 permits
a second extension of another 15 days. This second extension
shall, however, only be "for the most compelling reason."
Rule 42 allows 15 days to file petitions for review. Within the
same period, appellants are expressly permitted by the
penultimate sentence of Rule 42, Section 1 to file motions for
extension. It is true that in seeking an extension, rather than
immediately filing a petition, appellants wager on the Court of
Appeals' favorable action. Still, it remains that they have 15 days
to seek an extension. They should not be faulted for maximizing
the period that Rule 42 allows. In doing so, they are not
"procrastinating" but are merely exercising a legitimate option.
If the Court of Appeals takes issue with the filing of motions for
extension a day before the end of the proper period, it should
advocate a revision of Rule 42 instead of faulting parties which
act within the bounds of this rule.
To legitimately seek an initial extension, petitioners had to file a
proper motion and to ensure that docket and lawful fees were
paid and deposit for costs was made before the expiration of the
reglementary period. Save for the Court of Appeals' assertion of
procrastination, there is no intimation that petitioners failed in
any of these requirements. No other technical defect has been
attributed to petitioners' First Motion for Extension. They also
timely paid the docket and other fees, and deposited for costs.
They did these alongside the filing of their First Motion for
Extension before the lapse of 15 days following their receipt of
a copy of the Regional Trial Court April 18, 2011 Order on May
9, 2011.
Petitioners did not abuse court processes when they sought a
second extension. Their Second Motion for Extension was
filed two (2) days before the end of the first 15-day extension. It
was filed, not only within, but in advance of the lapse of the
period for seeking the second extension sanctioned by the final
sentence of Rule 42, Section 1.
Their pleaded justifications were hardly frivolous. Petitioners
stepped into the shoes of a defendant who passed away.
Certainly, substituting for a deceased party is not forced upon
heirs37 and petitioners' inclusion in litigation was due to their
free volition. Still, petitioners' predicament of grappling with the
potentially stained name of a deceased wife and mother, who
could no longer defend herself against allegations of unpaid
136
debts, and whose estate faced possible diminution or
dissipation likely made it pressing for them to pursue her case.
Doing so, however, meant shouldering costs that were not
initially theirs to bear. By the unfortunate fortuity of Juliana's
passing, petitioners found themselves defending a case that was
not their own and bearing all the costs-financial or otherwise-
that it entailed.
Petitioners were simultaneously afflicted with the tragedy of
death and constrained by their means. These were compelling
reasons warranting a solicitous stance towards them. Justice is
better served by extending consideration to them and enabling
an exhaustive resolution of the parties' claims. This is especially
so as petitioners' utmost good faith was demonstrated; they
having seen to it that, even as they were imploring the Court of
Appeals' understanding, each of the technical requirements of
Rule 42 was satisfied.
EXTENSION AFTER PAYMENT OF DOCKET FEES
Section 1 provides that, upon proper motion and they payment of
the full amount of the docket and other lawful fees and the deposit
for the costs before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen (15) days
only within which to file the petition for review. This means that
payment precedes any extension on the period to file the petition
and the filing of the petition itself. There is therefore a possibility
that there is payment of the docket and other lawful fees and the
deposit for costs and yet the party seeking to appeal is still unable
to file his petition. Take note that, under Rule VIII, Sec. 8 of the 2009
Revised Internal Rules of the Court of Appeals (RIRCA), the docket
and other lawful fees and deposit for costs, once paid, shall be non-
refundable, except when erroneously made.
MOTION FOR NEW TRIAL OR RECONSIDERATION
Before filing a petition for review under Rule 42, the aggrieved
party is specifically not allowed to file either a motion for new trial
or reconsideration under Rule 37. This rule applies also to ordinary
appeals under Rules 40 and 41. However, under Rule 40, because
the judgement there is rendered by the Municipal Trial Court, it
could be that the filing of a motion for reconsideration is
prohibited. Consider the following case:
SPOUSES EDILLO v. SPOUSES DULPINA
G.R. No. 188360, January 21, 2010
FACTS: Plaintiffs-respondents Spouses Dulpina filed a Complaint
for Forcible Entry against the defendants-petitioners Spouses
Edillo with the MCTS. The MCTC rendered judgement dismissing
the Complaint. The plaintiffs-respondents filed a Motion for
Reconsideration which the MCTC denied. On July 30, 2007, the
plaintiffs-respondents appealed by Notice of Appeal with the
MCTC and filed their Appeal Memorandum with the RTC. The
RTC decided the appeal and set aside the MCTC judgement and
ordered the defendants-petittioners to vacate the subject
property. After the RTC denied their Motion for
Reconsideration, the defendants-petitioners elevated the case
to the CA through a Petition for Review under Rule 42 of the
Rules of Court. They argued that the plaintiffs-respondents’
appeal with the RTC was filed out of time since the Revised Rules
of Summary Procedure (RRSP) prohibits the filing of a motion for
reconsideration.
ISSUE: Whether the appeal before the RTC was filed out of time.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULING: YES. Section 19(c) of the Rules of Summary Procedure
and Section 13(c) of Rule 70 of the Rules of Court consider a
motion for reconsideration of a judgment a prohibited pleading.
Thus, when the plaintiffs-respondents filed on June 5, 2007 a
Motion for Reconsideration of the MCTC Judgment, the motion
did not stop the running of the period for appeal. With the
continuous running of this period, the May 23, 2007 MCTC
judgment (which the plaintiffs-respondents received through
counsel on May 31, 2007) had long lapsed to finality when the
plaintiffs-respondents filed their Notice of Appeal on July 30,
2007.
In the present case, the lapse of the period for appeal rendered
the RTC without any jurisdiction to entertain, much less grant,
the plaintiffs-respondents' appeal from the final and immutable
MCTC judgment. XXX
RECEPTION OF EVIDENCE
As a general rule, there is no more reception of evidence before the
Court of Appeals. This is very clear under Rule VI, Section 6 of the
RIRCA which provides that, if the petition is given due course, the
Court may either: (1) require the court a quo to elevate the records
of the case, (2) set the case for oral argument, (3) require the
parties to submit their memoranda or (4) consider the case
submitted for decision. After the oral argument or upon submission
of the memoranda or expiration of the time to file the same, the
case shall be deemed submitted for decision. In none of these
options does it appear that the Court of Appeals will actually
require the presentation of evidence in an ordinary appeal under
Rule 41 or a petition for review under Rule 42.
1.
By ways of exception, however, the Court of Appeals may receive
evidence in the following cases, as enumerated under Rule Xi,
Sections 3 and 4 (on preliminary injunction) of the RIRCA:
(a) In actions falling within its original jurisdiction, such as:
(1) Certiorari, prohibition and mandamus under Rules
46 and 65 of the Rules of Court;
2.
(2) Action for annulment of judgement or final order
under Rule 47 of the Rules of Court;
(3) Quo warranto under Rule 66 of the Rules of Court;
and
(4) Habeas corpus under Sections 2 and 12, Rule 102 of
the Rules of Court.
(b) In appeals in civil cases where the court grants a new trial
on the ground of newly discovered evidence pursuant to
Sec. 3, Rule 53 of the Rules of Court;
(c) In appeals in criminal cases where the court grants a new
3.
trial on the ground of newly discovered evidence,
pursuant to Section 12, Rule 124 of the Rules of Court;
(d) In appeals involving claims for damages arising from
provisional remedies; and
(e) In applications for preliminary injunction, where the
Court of Appeals may, in its sound discretion, set the
application for hearing during which the parties may
present their respective positions or submit evidence in
support thereof.
Section 2. Form and contents. — The petition shall be filed in
seven (7) legible copies, with the original copy intended for the
137
court being indicated as such by the petitioner, and shall (a)
state the full names of the parties to the case, without
impleading the lower courts or judges thereof either as
petitioners or respondents; (b) indicate the specific material
dates showing that it was filed on time; (c) set forth concisely a
statement of the matters involved, the issues raised, the
specification of errors of fact or law, or both, allegedly
committed by the Regional Trial Court, and the reasons or
arguments relied upon for the allowance of the appeal; (d) be
accompanied by clearly legible duplicate originals or true copies
of the judgments or final orders of both lower courts, certified
correct by the clerk of court of the Regional Trial Court, the
requisite number of plain copies thereof and of the pleadings
and other material portions of the record as would support the
allegations of the petition.
The petitioner shall also submit together with the petition a
certification under oath that he has not theretofore
commenced any other action involving the same issues in the
Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there is such other
action or proceeding, he must state the status of the same; and
if he should thereafter learn that a similar action or proceeding
has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or any other
tribunal or agency, he undertakes to promptly inform the
aforesaid courts and other tribunal or agency thereof within five
(5) days therefrom. (n)
FORMAL REQUIREMENTS
NUMBER OF COPIES: Under Sec. 2, the petition shall be filed
Seven (7) legible copies, with the original copy intended for the
court being indicated as such by the petitioner. Take note,
however, that Section 5(b) of A.M. No. 11-9-4-SC or the
Efficient Use of Paper Rule only requires one original
(properly marked) and two copies with their annexes.
REQUIRED STATEMENTS:
(a) The full names of the parties to the case, without
impleading the lower courts or judges thereof either as
petitioners or respondents;
(b) The specific material dates showing that it was filed on
time (MATERIAL DATA RULE);
(c) In a concise form, the matters involved, the issues raised
the specification of errors of fact or law, or both, allegedly
committed by the RTC;
(d) The reasons or arguments relied upon for the allowance
of the appeal;
REQUIRED ATTACHMENTS:
(a) Clearly legible duplicate originals or true copies of the
judgements or final orders of both lower courts, certified
correct by the clerk of court of the Regional Trial Court,
the requisite number of plain copies thereof and of the
pleadings and other material portions of the record as
would support the allegations of the petition;
• These are required in order for the Court of
Appeals to determine whether or not he
petition should be given due course. It will be
denied due course if the petition, as borne out
by the records is bereft of evidentiary
foundation.
(b) A verification; and
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
(c) A certification under oath that he has not theretofore
commenced any other action involving the same issues in
the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; if there
is such other action or proceeding, he must state the
status of the same; and if he should thereafter learn that
a similar action or proceeding has been filed or is pending
before the Supreme Court, the Court of Appeals, or
different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within 5 days
therefrom (CERTIFICATION AGAINST FORUM SHOPPING).
4. EFFECT OF FAILURE TO COMPLY:
Section 3. Effect of failure to comply with requirements. — The
failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other
lawful fees, the deposit for costs, proof of service of the petition,
and the contents of and the documents which should
accompany the petition shall be sufficient ground for the
dismissal thereof. (n)
ON THE REQUIRED ATTACHMENTS
1. Is it required to attach all of the pleadings, motions and orders
from the proceeding in the lower courts?
YUKI, JR. v. CO
G.R. No. 178527, November 27, 2009
FACTS: Yuki contends that the petition for review filed by Co is
procedurally infirm and that the appellate court should have
outrightly dismissed the same. Specifically, petitioner points
ourt that while he failed to attach to said position papers the
annexes thereto. This, petitioner insists, warrants the dismissal
of respondent’s petition per Section 2, Rule 42 of the Rules of
Court, in relation to Section 3 of the same Rule.
HELD: Section 2 of Rule 42 does not require that all the
pleadings and documents filed before the lower courts must be
attached as annexes to the petition. Aside from clearly legible
duplicate originals or true copies of the judgments or final
orders of both lower courts, it merely requires that the petition
be accompanied by copies of pleadings and other material
portions of the record as would support the allegations of the
petition. As to what these pleadings and material portions of the
record are, the Rules grants the petitioner sufficient discretion
to determine the same. This discretion is of course subject to
CA's evaluation whether the supporting documents are
sufficient to make out a prima facie case.23 Thus, Section 3
empowers the CA to dismiss the petition where the allegations
contained therein are utterly bereft of evidentiary foundation.
Since in this case the CA gave due course to respondent's
Petition for Review and proceeded to decide it on the merits, it
can be fairly assumed that the appellate court is satisfied that
respondent has sufficiently complied with Section 2 of Rule 42.
138
LAPSES MAY BE RECTIFIED BY FILING A MOTION FOR
RECONSIDERATION OF COURT OF APPEALS’ DISMISSAL
SPOUSES ESPEJO v. ITO
G.R. No. 176511, August 4, 2009
Technicalities, however, must be avoided. The law abhors
technicalities that impede the cause of justice. The court's
primary duty is to render or dispense justice. "A litigation is not
a game of technicalities." "Lawsuits unlike duels are not to be
won by a rapier's thrust. Technicality, when it deserts its proper
office as an aid to justice and becomes its great hindrance and
chief enemy, deserves scant consideration from courts."
Litigations must be decided on their merits and not on
technicality. Every party litigant must be afforded the amplest
opportunity for the proper and just determination of his cause,
free from the unacceptable plea of technicalities. Thus,
dismissal of appeals purely on technical grounds is frowned
upon where the policy of the court is to encourage hearings of
appeals on their merits and the rules of procedure ought not
to be applied in a very rigid, technical sense; rules of procedure
are used only to help secure, not override substantial justice.
It is a far better and more prudent course of action for the court
to excuse a technical lapse and afford the parties a review of
the case on appeal to attain the ends of justice rather than
dispose of the case on technicality and cause a grave injustice
to the parties, giving a false impression of speedy disposal of
cases while actually resulting in more delay, if not a
miscarriage of justice. (Emphasis supplied.)
It should be noted that in this case, petitioners immediately
acted to rectify their earlier procedural lapse by submitting,
together with their Motion for Reconsideration of the 19
December 2006 Resolution of the Court of Appeals, a Motion to
Admit a copy of their Complaint for Unlawful Detainer.
Submission of a document together with the motion for
reconsideration constitutes substantial compliance with the
requirement that relevant or pertinent documents be submitted
along with the petition, and calls for the relaxation of procedural
rules.
Moreover, the Court held in Spouses Lanaria v. Planta22 that
under Section 3(d), Rule 3 of the Revised Internal Rules of the
Court of Appeals,23 the Court of Appeals is with authority to
require the parties to submit additional documents as may be
necessary to promote the interests of substantial justice.
Therefore, the appellate court, instead of dismissing outright
the Petition, could just as easily have required petitioners to
submit the necessary document, i.e., a copy of petitioners'
Complaint for Unlawful Detainer filed with the MeTC.
GUIDEPOSTS IN DETERMINING THE NECESSITY OF ATTACHING
PLEADINGS AND PORTIONS OF THE RECORD
MARAVILLA v. RIOS
G.R. 196875, August 19, 2015
FACTS: Respondent Joseph Rios filed a criminal case against
petitioner Teddy Maravilla for reckless imprudence resulting in
serious physical injuries before the Municipal Trial Court. The
MTC acquitted Petitioner but held him liable for temperate
damages in the amount of P20,000.00.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Respondent appealed to the RTC which later affirmed the
acquittal, delelted the award of temperate damages but held
Petitioner liable for P256,386.25 as actual and compensatory
damages. Aggrieved, petitioner filed a petition for review before
the Court of Appeals under Rule 42. The CA dismissed the
petiion for violation of Rule 42, Section 2(d), consisting in
Petitioner’s failure to attach copies of the information filed
before the municipal trial court, the appellant’s brief filed before
the RTC, the appellee’s brief and other documents adduced
before the lower court. He filed a motion for reconsideration
which was denied.
Petitioner contends that courts must afford every party litigant
the amplest opportunity for the just and proper determination
of his case free from the constraints of technicalities. He claims
that his failure to submit pertinent documents required by the
CA was due to misapprehension of Section 2(d) of Rule 42, as
the said section mentions only copies of the judgements or
orders of the lower courts, which brought him to the realization
that other pleadings or documents may be submitted later on,
as the need arises or as may be necessary. He argues that the
Revised Internal Rules of the CA (Sec. 3(d), Rule 3) states that
when a petition does not contain the complete annexes of the
required number of copies, “the Chief of the Judicial Records
Division shall require the petitioner to complete the annexes or
file the necessary number of copies of the petition before
docketing the case.” Thus, according to the Petitioner, the
defect was cured when he submitted the required
pleadings/documents together with his motion for
reconsideration with the CA.
ISSUE: Whether the dismissal of the petition for review was
proper.
HELD: YES. In Galvez v. Court of Appeals, this Court held that
there are three guideposts in determining the necessity of
attaching pleadings and portions of the record to petitions
under Rules 42 and 65 of the 1997 Rules, to wit:
First, not all pleadings and parts of case records are required to
be attached to the petition. Only those which are relevant and
pertinent must accompany it. The test of relevancy is whether
the document in question will support the material allegations
in the petition, whether said document will make out a prima
facie case of grave abuse of discretion as to convince the court
to give due course to the petition.
Second, even if a document is relevant and pertinent to the
petition, it need not be appended if it is shown that the
contents thereof can also [be] found in another document
already attached to the petition. Thus, if the material
allegations in a position paper are summarized in a questioned
judgment, it will suffice that only a certified true copy of the
judgment is attached.
Third, a petition lacking an essential pleading or part of the case
record may still be given due course or reinstated (if earlier
dismissed) upon showing that petitioner later submitted the
documents required, or that it will serve the higher interest of
justice that the case be decided on the merits.
The guideposts, which equally apply to a petition for review filed
in the CA under Rule 42, reflect that the significant determinant
of the sufficiency of the attached documents is whether the
139
accompanying documents support the allegations of the
petition.
The case of Spouses Espejo v. Ito does not apply. In petitioner's
case, however, while he submitted additional necessary
attachments along with his Motion for Reconsideration, he left
out important parts of the record - excerpts of the transcript of
stenographic notes, the respondent's formal offer of evidence,
and the trial court's Order admitting said formal offer of
evidence - that would support his claim that the trial court erred
in awarding damages to respondent since the latter failed to
testify as to his hospital expenses and identify particular
exhibits.
Thus, going by the ruling in Galvez, petitioner's failure to attach
relevant portions of the evidence and transcript of stenographic
notes - to his Petition, initially, and Motion for Reconsideration,
subsequently - which were not tackled in the decisions of the
courts below, but which are material to his claim that
respondent failed to testify as to and prove actual damages, is
fatal to his Petition for Review before the CA. In short, none of
the three guideposts spelled out in Galvez were observed in
petitioner's case.
Thus, even though petitioner exercises the initiative to select
what will be attached to his Petition for Review, it is the CA that
ultimately determines the sufficiency of these attachments. As
held in Atillo v. Bombay.24redarclaw
The phrase "of the pleadings and other material portions of the
record" in Section 2 (d), Rule 42 x x x followed by the phrase "as
would support the allegations of the petition" clearly
contemplates the exercise of discretion on the part of the
petitioner in the selection of documents that are deemed to be
relevant to the petition. However, while it is true that it is
petitioner who initially exercises the discretion in selecting the
relevant supporting documents that will be appended to the
petition, it is the CA that will ultimately determine if the
supporting documents are sufficient to even make out a prima
facie case. It can be fairly assumed that the CA took pains in the
case at bar to examine the documents attached to the petition
so that it could discern whether on the basis of what have been
submitted it could already judiciously determine the merits of
the petition. The crucial issue to consider then is whether x x x
the documents accompanying the petition before the CA
sufficiently supported the allegations therein.
x x x x
As mentioned earlier, it is not disputed that it is petitioner who
knows best what pleadings or material portions of the record of
the case would support the allegations in the petition.
Petitioner's discretion in choosing the documents to be attached
to the petition is however not unbridled. The CA has the duty to
check the exercise of this discretion, to see to it that the
submission of supporting documents is not merely perfunctory.
The practical aspect of this duty is to enable the CA to determine
at the earliest possible time the existence of prima facie merit in
the petition. Moreover, Section 3 of Rule 42 of the Rules of Court
provides that if petitioner fails to comply with the submission of
"documents which should accompany the petition," it "shall be
sufficient ground for the dismissal thereof." In this case, the
insufficiency of the supporting documents combined with the
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
unjustified refusal of petitioner to even attempt to substantially
comply with the attachment requirement justified the dismissal
of [his] petition.
SPOUSES PONTILLAS v. OLIVARES
G.R. No. 207667, April 17, 2017
FACTS: Petitioners filed a Petition for Review under Rule 42
before the CA. In a Resolution dated March 29, 2012, the CA
dismissed the petition outright for the following infirmities: (1)
failure to append proof of service of the petition to the adverse
party; and (2) failure to provide the updated PTR number of
petitioners’ counsel. The petitioners filed a Motion for
Reconsideration but the same was denied in a Resolution dated
March 11, 2013.
ISSUE: Whether or not the CA erred in dismissing the petition
outright.
RULING: YES. Courts should not be unduly strict in cases
involving procedural lapses that do not really impair the proper
administration of justice. -Since litigation is not a game of
technicalities, every litigant should be afforded the amplest
opportunity for the proper and just determination of his case,
free from the constraints of technicalities.
While petitioners failed to attach the proof of service in their
petition before the CA, petitioners submitted an Affidavit of
Service when they filed their Motion for Reconsideration. In this
case, We deem it proper to consider that their belated
submission of said proof of service constitutes substantial
compliance.
As to the failure of petitioners' counsel to update her PTR
number, it must be considered that the purpose of requiring a
counsel to indicate her PTR number is merely to protect the
public from bogus lawyers. Notably, petitioners' counsel has a
corresponding PTR number. However, she merely failed to
indicate the updated one inadvertently. Her belated submission
of the same must also be treated as substantial compliance for
the danger which the law seeks to protect the public from is not
present in this case.
THE MORE MATERIAL DATE IS THE DATE OF RECEIPT OF ORDER
DENYING THE MOTION FOR RECONSIDERATION
SPOUSES CORDERO versus OCTAVIANO
G.R. No. 241385, July 07, 2020
FACTS: In 2011, Leonila Octaviano filed a complaint for
ejectment against Spouses Cordero before the MCTC docketed
as Civil Case No. C-538. The MCTC ruled in favor of Leonila and
ordered Spouses Cordero to vacate the premises. The Spouses
Cordero appealed to the Regional Trial Court (RTC). On
December 7, 2016, the RTC affirmed the MCTC's findings. The
Spouses Cordero moved for a reconsideration. On June 22,
2017, the RTC denied the motion for lack of merit. Aggrieved,
the Spouses Cordero elevated the case to the CA through a
petition for review under 42. The CA dismissed Spouses
Cordero's petition for failure to state the material date showing
when RTC Decision was received and to append to the petition
clearly legible duplicate original or true copy of the assailed RTC
140
Decision, as well as other pertinent portions of the records
necessary for a thorough evaluation of the case by this Court.
Spouses Cordero sought reconsideration invoking substantial
compliance with rules requiring statement of material dates.
They claimed that the failure to state the date of receipt of the
RTC Decision is inadvertent and does not warrant the outright
dismissal of their petition for review. Nevertheless, the petition
indicated the date of receipt of the RTC Order dated June 22,
2017 denying their motion for reconsideration. This is sufficient
to determine the timeliness of the petition. As to the material
records of the ease, Spouses Cordero alleged that the CA
overlooked the copy of the RTC Decision dated December 7,
2016 which was attached as Annex "C" in the petition for
review. Also appended in the petition are the RTC Order dated
June 22, 2017 and the MCTC Decision dated May 22, 2013 which
will enable the CA to evaluate the merits of the case.
Furthermore, Spouses Cordero subsequently submitted
additional records such as the complaint, answer, memoranda,
and motion for reconsideration.
ISSUE: Whether or not the CA erred in dismissing the petition.
RULING: YES. The rationale for requiring a complete statement
of material dates is to determine whether the petition is timely
filed. Accordingly, the petition must show when notice of the
assailed judgment or order or resolution was received; when
the motion for reconsideration was filed; and, when notice of
its denial was received. However, this Court may relax strict
observance of the rules to advance substantial justice.
In Security Bank Corporation v. Aerospace University, the CA
denied due course to the petition for failure to state the dates
when the assailed order was received and the motion for
reconsideration was filed. Yet, we held that "[t]he more
material date for purposes of appeal to the Court of Appeals is
the date of receipt of the trial court's order denying the motion
for reconsideration. "
In this case, the Spouses Cordero clearly stated in the petition
for review before the CA the date they received the RTC Order
dated June 22, 2017 denying their motion for reconsideration.
Specifically, the Spouses Cordero received the Order on July 11,
2017 and timely filed the petition for review to the CA on July
26, 2017 or within 15-day reglementary period. As such, the
Spouses Cordero are deemed to have substantially complied
with the rules. The failure to indicate the date when they
received the other order and resolutions may be dispensed with
in the interest of justice.
Similarly, the CA found that Spouses Cordero violated Section
2(d) Rule 42 of the Rules of Court because they did not submit
material records of the case. The rule requires that the petition
for review before the CA shall "be accompanied by dearly
legible duplicate originals or true copies of the judgments or
final orders of both lower courts, certified correct by the clerk
of court of the Regional Trial Court, the requisite number of
plain copies thereof and of the pleadings and other material
portions of the record as would support the allegations of the
petition. "
A perusal of the petition for review, however, reveals that
copies of the RTC Order dated June 22, 2017, the MCTC Decision
dated May 22, 2013, and the RTC Decision dated December 7,
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
2016 were in fact attached as Annexes "A, " "B, " and "C, '"
respectively. Hence, Spouses Cordero complied with the
requirement of attaching copies of the judgments and orders of
the trial courts. Moreover, these attachments are already
sufficient to enable the CA to pass upon the assigned errors and
to resolve the appeal even without the pleadings and other
portions of the records.
To be sure, the assailed decisions of the trial courts substantially
summarized the contents of the omitted records. Likewise, the
CA can resolve the issues by relying on the principle that the
factual findings of the lower courts are entitled to great weight.
It can also direct Spouses Cordero to submit additional
documents or the clerk of court of the RTC and MCTC to elevate
the original records of the case. Notably, the Spouses Cordero
appended the pertinent pleadings and documents in their
motion for reconsideration before the CA. On this point, we
reiterate that there is ample jurisprudence holding that the
subsequent and substantial compliance of a party may call for
the relaxation of the rules of procedure. Yet, the CA failed to do
so and insisted on the outright dismissal of the petition.
In all, the CA's outright dismissal of the petition for review
constitutes a gross error and contravenes to Spouses Cordero's
right to be heard on appeal. The ends of justice will be better
served if the case is determined on the merits, after full
opportunity is given to all parties for ventilation of their causes
and defenses, rather than on some procedural imperfections. It
is far better to dispose of the case on the merits, which is a
primordial end, rather than on a technicality that may result in
injustice.
2. CERTIFICATION AGAINST FORUM SHOPPING: MANDATORY
PYRO COPPER MINING CORP. versus MINES ADJUDICATION
BOARD
G.R. No. 179674, July 28, 2009
Section 6(d), Rule 43 in relation to Section 2, Rule 42 of the 1997
Revised Rules of Civil Procedure mandates that a petition for
review shall contain a sworn certification against forum
shopping XXX. For failure to comply with this mandate, Section
7, Rule 43 of the 1997 Revised Rules of Civil Procedure provides:
SEC. 7. Effect of failure to comply with requirements. — The
failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other
lawful fees, the deposit for costs, proof of service of the petition,
and the contents of and the documents which should
accompany the petition shall be sufficient ground for the
dismissal thereof.
The requirement that petitioner should sign the Certification
against Forum Shopping applies even to corporations, the Rules
of Court making no distinction between natural and juridical
persons. A corporation, however, exercises its powers through
its board of directors and/or its duly authorized officers and
agents. Physical acts, like the signing of documents, can be
performed only by natural persons duly authorized for the
purpose by corporate by-laws or by a specific act of the board
of directors. The signatory, therefore, in the case of the
corporation should be "a duly authorized director or officer of
the corporation" who has knowledge of the matter being
certified.
141
If the petitioner is a corporation, a board resolution authorizing
a corporate officer to execute the Certification against Forum
Shopping LS necessary. A certification not signed by a duly
authorized person renders the petition subject to dismissal.
Although the Court has previously relaxed the rules on
verification and certification against forum shopping in some
instances, it cannot do so here.
From the very beginning, petitioner failed to attach to its
Petition for Review before the Court of Appeals the relevant
documents required by Section 6, Rule 43 of the 1997 Revised
Rules of Procedure. Petitioner had two opportunities to comply
with the requisites, i.e., when it filed its Motion for
Reconsideration of the 23 February 2007 Resolution of the
Court of Appeals and when it submitted its compliance with the
8 June 2007 Resolution of the appellate court; yet, petitioner
still failed to do so. Petitioner never offered any satisfactory
explanation for its stubborn non-compliance with or disregard
for the rules of procedure.
It is true that a litigation is not a game of technicalities, and that
the rules of procedure should not be strictly enforced at the cost
of substantial justice. However, it does not mean that the Rules
of Court may be Ignored at will and at random, to the prejudice
of the orderly presentation and assessment of the issues and
their just resolution. It must be emphasized that procedural
rules should not be belittled or dismissed simply because their
non-observance may have resulted in prejudice to a party's
substantial rights. Like all rules, they are required to be followed
except only for the most persuasive of reasons.
3. EFFECT OF FAILURE TO VERIFY
LARANO versus CALENDACION
G.R. No. 158231, June 19, 2007
As to the contention of petitioner that the CA should not have
taken cognizance of the petition for review because it was not
verified, as required by the Rules, this Court has held in a
number of instances that such a deficiency can be excused or
dispensed with in meritorious cases; the defect being neither
jurisdictional nor always fatal. The requirement regarding
verification of a pleading is formal. Such requirement is simply a
condition affecting the form of pleading, the non-compliance
with which does not necessarily render the pleading fatally
defective. Verification is simply intended to secure an assurance
that the allegations in the pleading are true and correct and not
the product of the imagination or a matter of speculation, and
that the pleading is filed in good faith.
The court may order the correction of the pleading if verification
is lacking or act on the pleading although it is not verified, if the
attending circumstances are such that strict compliance with
the Rules may be dispensed with in order that the ends of justice
may thereby be served.
APPLICABILITY OF NEYPES
In NEYPES, ET AL. versus COURT OF APPEALS, G.R. No. 141524,
September 14, 2005, the Supreme Court deemed it practical to
allow a fresh period of 15 days within which to file the notice
of appeal in the Regional Trial Court, counted from receipt of
the order dismissing a motion for a new trial or motion for
reconsideration. This was to standardize the appeal periods
and to afford litigants fair opportunity to appeal their cases.
The "fresh period rule" was made specifically applicable to Rule
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
42 on petitions for review from the Regional Trial Courts to the
Court of Appeals. The "fresh period rule" is a procedural law
and following the rule on retroactivity of procedural laws, it
should be applied to pending actions (JOSE versus JAVELLANA,
ET AL., G.R. No. 158239, January 25, 2012).
ERRORS OF FACT OR LAW, OR BOTH
Errors of fact and errors of law, or both, may be raised under Rule
42. Recall that the Supreme Court has original jurisdiction to hear
cases decided by the RTC when only pure questions of law are
involved. Does this apply to pure questions of law in cases decided
by the RTC either affirming or reversing the MTC on appeal? Stated
otherwise, can Rule 45 be invoked to assail an RTC's appellate
judgment on pure questions of law? The answer is yes.
At the onset, it must be emphasized that the power to hear cases
on appeal in which only questions of law are raised is not vested
exclusively in the Supreme Court. A Rule 42 petition for review may
include questions of fact, of law, or mixed questions of fact and law
(see INTRAMUROS ADMINISTRATION versus OFFSHORE
CONSTRUCTION, G.R. No. 196795, March 7, 2018). It may also be
said that direct resort to the Supreme Court under Rule 45, instead
of to the Court of Appeals under Rule 42 for intermediate review
violates the principle of hierarchy of courts. Ordinarily, where
review of the RTC's decision rendered in the exercise of its
appellate jurisdiction is on pure questions of law, resort should be
made before the Court of Appeals under Rule 42. Conversely,
where review of the RTC's decision rendered in the exercise of its
original jurisdiction is on pure questions of law, direct resort to the
Supreme Court may of course be had under Rule 45. However, the
Supreme Court itself, had recognized, in BARCENAS versus
SPOUSES TOMAS, G.R. No. 150321, March 31, 2005, that a Rule 45
petition may be directly filed before it to assail a judgment
rendered by the RTC in the exercise of the latter's appellate
jurisdiction.
WHERE RTC JUDGMENT ON APPEAL ASSAILED THROUGH A RULE
45 PETITION
INTRAMUROS ADMINISTRATION versus OFFSHORE
CONSTRUCTION DEVELOPMENT CO.,
G.R. No. 196795, March 7, 2018.
FACTS: Intramuros filed a Complaint for Ejectment before
the Manila Metropolitan Trial Court on April 28, 2010 against
Offshore Construction. On July 12, 2010, Offshore Construction
filed a Very Urgent Motion, praying that Intramuros' complaint
be dismissed on the grounds of violation of the rule on non-
forum shopping, lack of jurisdiction over the case, and litis
pendentia. In its October 19, 2010 Order, the Metropolitan Trial
Court granted the motion and dismissed the case.
Intramuros appealed the October 19, 2010 Order with the
Regional Trial Court. On April 14, 2011, the Regional Trial Court
affirmed the Municipal Trial Court October 19, 2010 Order in
toto. On June 16, 2011, Intramuros filed its Petition for Review
on Certiorari before the Supreme Court, assailing the April 14,
2011 Decision of the Regional Trial Court under Rule 45 solely
on questions of law.
Offshore Construction argues that the Petition for Review
should be dismissed because it violates the principle of
hierarchy of courts. Instead of directly filing with the Supreme
Court, Intramuros should have filed a Petition for Review with
the Court of Appeals, in accordance with Rule 42 of the Rules
of Court.
142
ISSUE: Whether a petition for review under Rule 45 was the
proper remedy in his case.
RULING: At the outset, petitioner should have filed a petition
for review under Rule 42 of the Rules of Court to assail the
Regional Trial Court's ruling upholding the Metropolitan Trial
Court October 19, 2010 Order instead of filing a petition for
review on certiorari under Rule 45 with this Court.
This Court has ruled that the jurisdiction of a court over the
subject matter of a complaint and the existence of forum
shopping are questions of law. A petition for review under Rule
42 may include questions of fact, of law, or mixed questions of
fact and law. This Court has recognized that the power to hear
cases on appeal in which only questions of law are raised is not
vested exclusively in this Court.
Petitioner's direct resort to this Court, instead of to the Court
of Appeals for intermediate review as sanctioned by the rules,
violates the principle of hierarchy of courts.
Nonetheless, the doctrine of hierarchy of courts is not
inviolable, and this Court has provided several exceptions to
the doctrine. One of these exceptions is the exigency of the
situation being litigated. Here, the controversy between the
parties has been dragging on since 2010, which should not be
the case when the initial dispute-an ejectment case-is, by
nature and design, a summary procedure and should have been
resolved with expediency.
Moreover, this Court's rules of procedure permit the direct
resort to this Court from a decision of the Regional Trial Court
upon questions of law, such as those which petitioner raises in
this case. In Barcenas v. Spouses Tomas and Caliboso:
Nonetheless, a direct recourse to this Court can be taken for a
review of the decisions, final orders, or resolutions of the RTC,
but only on questions of law. XXX
Procedurally then, petitioners could have appealed the RTC
Decision affirming the MTC (1) to this Court on questions of law
only; or (2) if there are factual questions involved, to the CA -
as they in fact did.
Thus, petitioner's resort to this Court is proper and warranted
under the circumstances.
RULE 42 PETITION VERSUS RULE 65 CERTIORARI
LEE, JR. versus HON. COURT OF APPEALS
G.R. No. 165918, June 17, 2008
A petition for review under Rule 42 and a special civil action for
certiorari under Rule 65 are distinct remedies. A petition for
review under Rule 42 seeks to review a judgment rendered by
the RTC in the exercise of its appellate jurisdiction on questions
of law or of fact or both. A special civil action for certiorari
under Rule 65, on the other hand, is a limited form of review
and a remedy of last resort. It will issue only to correct errors
of jurisdiction, not errors of procedure or mistakes in the
findings or conclusions of the lower court.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
CU versus VENTURA
G.R. No. 224567, September 26, 2018
The fact that petitioner filed a petition for review under Rule 42,
or ordinary appeal with the CA, is already an indication that
what she was seeking was the reversal of the entire decision of
the RTC, in both its criminal and civil aspects. Petitioner could
have filed a special civil action for certiorari had she intended to
merely preserve her Interest in the civil aspect of the case.
Section 4. Action on the petition. — The Court of Appeals may
require the respondent to file a comment on the petition, not a
motion to dismiss, within ten (10) days from notice, or dismiss
the petition if it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the questions raised
therein are too insubstantial to require consideration. (n)
Section 5. Contents of comment. — The comment of the
respondent shall be filed in seven (7) legible copies,
accompanied by certified true copies of such material portions
of the record referred to therein together with other supporting
papers and shall (a) state whether or not he accepts the
statement of matters involved in the petition; (b) point out such
insufficiencies or inaccuracies as he believes exist in petitioner's
statement of matters involved but without repetition; and (c)
state the reasons why the petition should not be given due
course. A copy thereof shall be served on the petitioner. (a)
Section 6. Due course. — If upon the filing of the comment or
such other pleadings as the court may allow or require, or after
the expiration of the period for the filing thereof without such
comment or pleading having been submitted, the Court of
Appeals finds prima facie that the lower court has committed
an error of fact or law that will warrant a reversal or
modification of the appealed decision, it may accordingly give
due course to the petition. (n)
Section 7. Elevation of record. — Whenever the Court of
Appeals deems it necessary, it may order the clerk of court of
the Regional Trial Court to elevate the original record of the
case including the oral and documentary evidence within
fifteen (15) days from notice. (n)
Section 8. Perfection of appeal; effect thereof. —
(a) Upon the timely filing of a petition for review and the
payment of the corresponding docket and other lawful
fees, the appeal is deemed perfected as to the petitioner.
The Regional Trial Court loses jurisdiction over the case upon
the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
However, before the Court of Appeals gives due course to the
petition, the Regional Trial Court may issue orders for the
protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal. (9a, R41)
(b) Except in civil cases decided under the Rule on Summary
Procedure, the appeal shall stay the judgment or final
order unless the Court of Appeals, the law, or these Rules
shall provide otherwise. (a)
143
PERFECTION OF APPEAL
The appeal is deemed perfected as to the petitioner upon the
timely filing of a petition for review and the payment of the
corresponding docket and other lawful fees.
EFFECT OF PERFECTION
The Regional Trial Court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the
time to appeal of the other parties.
RESIDUAL JURISDICTION
Before the Court of Appeals gives due course to the petition under
Section 6, the Regional Trial Court may issue orders for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order execution
pending appeal in accordance with section 2 of Rule 39, and allow
withdrawal of the appeal.
IMPORTANT EFFECT OF APPEAL
Except in civil cases decided under the Rule on Summary
Procedure, the appeal shall stay the judgment or final order unless
the Court of Appeals, the law, or these Rules shall provide
otherwise.
Note that under the Rules on Summary Procedure:
Sec. 21. Appeal. — 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. The
decision of the regional trial court in civil cases governed by this
Rule, including forcible entry and unlawful detainer, shall be
immediately executory, without prejudice to a further appeal that
may be taken therefrom. Section 10 of Rule 70 shall be deemed
repealed.
RULES SHALL PROVIDE OTHERWISE
Rule 39, Section 4. Judgments not stayed by appeal. — Judgments
in actions for injunction, receivership, accounting and support, and
such other judgments as are now or may hereafter be declared to
be immediately executory, shall be enforceable after their
rendition and shall not, be stayed by an appeal taken therefrom,
unless otherwise ordered by the trial court. On appeal therefrom,
the appellate court in its discretion may make an order suspending,
modifying, restoring or granting the injunction, receivership,
accounting, or award of support.
The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or
protection of the rights of the adverse party. (4a)
Section 9. Submission for decision. — If the petition is given
due course, the Court of Appeals may set the case for oral
argument or require the parties to submit memoranda within a
period of fifteen (15) days from notice. The case shall be
deemed submitted for decision upon the filing of the last
pleading or memorandum required by these Rules or by the
court itself. (n)
 CIVIL PROCEDURE 144
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

DISTINCTIONS RULE 41 RULE 42 Section I(c), Rule 50 of the Rules of Court. The compliance with
RTC JURISDICTION Original Appellate these requirements was the only way by which they could have
APPEALED ROM jurisdiction jurisdiction perfected their appeal from the adverse judgment of the RTC.
Notice of appeal or
Notice of Appeal In contrast, an appeal filed under Rule 42 is deemed perfected
WHAT MUST BE
with Record on Petition for Review as to the petitioner upon the timely filing of the petition for
FILED
Appeal as the case review before the CA, while the RTC shall lose jurisdiction upon
may be perfection thereof and the expiration of the time to appeal of
PERIOD TO the other parties.
15 or 30 days 15 days
APPEAL
15 days The distinctions between the various modes of appeal cannot
(notice of appeal) 15 days — be taken for granted, or easily dismissed, or lightly treated. The
not extendible extendible but appeal by notice of appeal under Rule 41 is a matter or right, but
EXTENSIONS the appeal by petition for review under Rule 42 is a matter of
30 days requisites must be
(record on appeal) complied with discretion. An appeal as a matter of right, which refers to the
- extendible right to seek the review by a superior court of the judgment
APPLICABILITY OF rendered by the trial court, exists after the trial in the first
Applicable instance. In contrast, the discretionary appeal, which is taken
NEYPES RULING
Petitioner and from the decision or final order rendered by a court in the
Respondent. The exercise of its primary appellate jurisdiction, may be disallowed
Appellant and by the superior court in its discretion. Verily, the CA has the
PARTIES RTC is copy
Appellee discretion whether to due course to the petition for review or
furnished but not
impleaded. not.
Upon filing and
PERFECTION Upon filing The procedure taken after the perfection of an appeal under
payment of fees
Until the Rule 41 also significantly differs from that taken under Rule 42.
Until the Court of Under Section 10 of Rule 41, the clerk of court of the RTC is
RECKONING OF transmittal of the
Appeals gives due burdened to immediately undertake the transmittal of the
RESIDUAL original record or
course to the records by verifying the correctness and completeness of the
JURISDICTION the record on
petition records of the case; the transmittal to the CA must be made
appeal
Appeal is not within 30 days from the perfection of the appeal. This
Appeal is given automatically requirement of transmittal of the records does not arise under
due course given due course Rule 42, except upon order of the CA when deemed necessary.
provided that it is with such filing
DUE COURSE As borne out in the foregoing, the petitioners' resort to the
filed on time and and payment.
the proper fees Reference must petition for review under Rule 42 was wrong. Hence, the CA did
are paid. still be had to not err in denying due course to the petition for review.
Section 6.
Yet, the petitioners plead for liberality, insisting that their
HEIRS OF GARCIA versus MUNICIPALITY OF IBA, ZAMBALES petition for review, albeit the wrong mode, was a substantial
G.R. No. 162217, July 22, 2015 compliance with the proper mode of appeal.

Although admitting that their petition for review under Rule 42
was inappropriate, the petitioners maintain that they
substantially complied with the requirements of an ordinary
appeal under Rule 41, and pray that the Court exercise its equity
jurisdiction because a stringent application of the Rules of Court
would not serve the demands of substantial justice.
Under Rule 41, the petitioners should have filed a notice of
appeal in the RTC within the period of 15 days from their notice
of the judgment of the RTC, and within the same period should
have paid to the clerk of the RTC the full amount of the appellate
court docket and other lawful fees. The filing of the notice of
appeal within the period allowed by Section 3 sets in motion the
remedy of ordinary appeal because the appeal is deemed
perfected as to the appealing party upon his timely filing of the
notice of appeal. It is upon the perfection of the appeal filed in
due time, and the expiration of the time t06 appeal of the other
parties that the RTC shall lose jurisdiction over the case. On the
other hand, the non-payment of the appellate court docket fee
within the reglementary period as required by Section 4, is both
mandatory and jurisdictional, the non-compliance with which is
fatal to the appeal, and is a ground to dismiss the appeal under
The plea for liberality is unworthy of any sympathy from the
Court. We have always looked at appeal as not a matter of right
but a mere statutory privilege. As the parties invoking the
privilege, the petitioners should have faithfully complied with
the requirements of the Rules of Court. Their failure to do so
forfeited their privilege to appeal. Indeed, any liberality in the
application of the rules of procedure may be properly invoked
only in cases of some excusable formal deficiency or error in a
pleading, but definitely not in cases like now where a liberal
application would directly subvert the essence of the
proceedings or results in the utter disregard of the Rules of
Court.
Moreover, the petitioners did not give any good reason or cause
that could warrant the relaxation of the rules in their favor.
Their bare plea for substantial justice was not enough ground to
suspend the rules. Acceding to their plea would conceal their
shortcomings in procedure, and thereby belittle the lofty
objectives of instituting rules of procedure. We cannot allow
that to happen, for doing so would sacrifice the smooth
administration of justice guaranteed to every litigant. We have
allowed exceptions only for the most persuasive of reasons, like
 CIVIL PROCEDURE 145
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

relieving the litigant of an injustice not commensurate with the
degree of his thoughtlessness in not complying with the
procedure prescribed.
BARANGAY SANGALANG versus BARANGAY MAGUIHAN
G.R. No. 159792, December 23, 2009
present to the appellate court in the most helpful light, the
factual and legal antecedents of a case on appeal, said rule
should not be strictly applied considering that petitioner's brief
before the CA contained only 9 pages, the records of the case
consisted only of a few documents and pleadings, and there was
no testimonial evidence.

Based on the foregoing, it is apparent that petitioner has availed

itself of the wrong remedy. Since the RTC tried the case in the
exercise of its appellate jurisdiction, petitioner should have filed
a petition for review under Rule 42 of the Rules of Court, instead
of an ordinary appeal under Rule 41. The law is clear in this
respect.

In any case, as in the past, this Court has recognized the

emerging trend towards a liberal construction of the Rules of
Court. In Ong Lim Sing, Jr. v. FEB Leasing and Finance
Corporation, this Court stated:

Courts have the prerogative to relax procedural rules of even

the most mandatory character, mindful of the duty to reconcile
both the need to speedily put an end to litigation and the
parties' right to due process. In numerous cases, this Court has
allowed liberal construction of the rules when to do so would
serve the demands of substantial justice and equity. In Aguam
v. Court of Appeals, the Court explained:

The court has the discretion to dismiss or not to dismiss an

appellant's appeal. It is a power conferred on the court, not a
duty. The "discretion must be a sound one, to be exercised in
accordance with the tenets of justice and fair play, having in
mind the circumstances obtaining in each case." Technicalities,
however, must be avoided. The law abhors technicalities that
impede the cause of justice. The court's primary duty is to
render or dispense justice. "A litigation is not a game of
technicalities." "Lawsuits, unlike duels, are not to be won by a
rapier's thrust. Technicality, when it deserts its proper office as
an aid to justice and becomes its great hindrance and chief
enemy, deserves scant consideration from courts. " Litigations
must be decided on their merits and not on technicality. Every
party-litigant must be afforded the amplest opportunity for the
proper and just determination of his cause, free from the
unacceptable plea of technicalities. Thus, dismissal of appeals
purely on technical grounds is frowned upon where the policy
of the court is to encourage hearings of appeals on their merits
and the rules of procedure ought not to be applied in a very
rigid, technical sense; rules of procedure are used only to help
secure, not override substantial justice. It is a far better and
more prudent course of action for the court to excuse a
technical lapse and afford the parties a review of the case on
appeal to attain the ends of justice rather than dispose of the
case on technicality and cause a grave injustice to the parties,
giving a false impression of speedy disposal of cases while
actually resulting in more delay, if not a miscarriage of justice.

Thus, notwithstanding petitioner's wrong mode of appeal, the

CA should not have so easily dismissed the petition, considering
that the parties involved are local government units and that
what is involved is the determination of their respective
territorial jurisdictions. In the same vein, the CA's strict reliance
on the requirements under Section 13 of Rule 44 of the 1997
Rules of Procedure relating to subject index and page references
in an appellant's brief is, to stress, putting a premium on
technicalities. While the purpose of Section 13, Rule 44, is to
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 43
APPEALS FROM THE COURT OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
*Compiled and Updated by: JZE and LCYE
Section 1. Scope. — 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 or 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 Administration,
Energy Regulatory Board, National Telecommunications
Commission, Department of Agrarian Reform under Republic
Act No. 6657, Government Service Insurance System,
Employees Compensation Commission, Agricultural Invention
Board, Insurance Commission, Philippine Atomic Energy
Commission, Board of Investments, Construction Industry
Arbitration Commission, and voluntary arbitrators authorized
by law. (n)
COURT OF TAX APPEALS
By virtue of Republic Act No. 9282, March 30 2004, the Court of Tax
Appeals has been elevated to the level of a collegiate court that is
co-equal with the Court of Appeals. As such, the CA no longer has
supervisory authority over the CA. Rule 43 is deemed amended to
the effect that the CTA is no longer covered by it. Review of the
judgments or final orders of the CTA is now governed by the
provisions of Republic Act No. 1125, as amended by Republic Act
No. 9282, as follows:
Section 18. Appeal to the Court of Tax Appeals En Banc. - No v civil
proceeding involving matter arising under the National Internal
Revenue Code, the Tariff and Customs Code or the Local
Government Code shall be maintained, except as herein provided,
until and unless an appeal has been previously filed with the CTA
and disposed of in accordance with the provisions of this Act. A
party adversely affected by a resolution of a Division of the CTA on
a motion for reconsideration or new trial, may file a petition for
review with the CTA en banc.
Section 19. Review by Certiorari. - A party adversely affected by a
decision or ruling of the CTA en banc may file with the Supreme
Court a verified petition for review on certiorari pursuant to Rule
45 of the 1997 Rules of Civil Procedure.
BIR versus ACOSTA
G.R. No. 195320, April 23, 2018
For cases before the CTA, a decision rendered by a division of
the CTA is appealable to the CTA En Banc as provided by Section
18 of R.A. No. 1125, as amended by R.A. No. 9282; Section 2 of
Rule 4 of the Revised Rules of the CTA also states that the CTA
En Banc has exclusive appellate jurisdiction relative to the
review of the court divisions' decisions or resolutions on motion
for reconsideration or new trial, in cases arising from
administrative agencies such as the BIR.
OMBUDSMAN
Unlike decisions of the Office of the Ombudsman in administrative
cases where the Rules of Procedure of the Office of the
146
Ombudsman provides for a remedy of appeal to the Court of
Appeals by way of a verified petition for review under Rule 43 of
the Rules of Court, there is no specific appeal or remedy provided
for resolutions or orders of the Office of the Ombudsman in
criminal and non-administrative cases which are considered final
and unappealable.
However, when the issuance of these final and unappealable
resolutions or orders is tainted with grave abuse of discretion
amount to lack or excess of jurisdiction, these resolutions or orders
can be assailed through the special civil actions for certiorari under
Rule 65 of the Rules of Court.
Under Section 14 of Republic Act No. 6770, no court shall hear any
appeal or application for remedy against the decision or findings of
the Ombudsman, except the Supreme Court, on pure question of
law. This obviously refers to an appeal by certiorari under Rule 45.
In ESTRADA versus DESIERTO, G.R. No. 156160, December 9, 2004,
the Supreme Court held that the remedy of aggrieved parties from
resolutions of the Office of the Ombudsman finding probable cause
in criminal cases or non-administrative cases, when tainted with
grave abuse of discretion, is to file an original action for certiorari
(Rule 65) with the Supreme Court and not with the Court of
Appeals.
Then, in the en banc case of CARPIO-MORALES versus CA, G.R. Nos.
2171262f, November 10, 2015, the Supreme Court declared that:
CARPIO-MORALES vs. CA
November 10, 2015
The second paragraph of Section 14, RA 6770 provides that no
appeal or application for remedy may be heard against the
decision or findings of the Ombudsman, with the exception of
the Supreme Court on pure questions of law.
This paragraph, which the Ombudsman particularly relies on in
arguing that the CA had no jurisdiction over the main CA-G.R. SP
No. 139453 petition, as it is supposedly this Court which has the
sole jurisdiction to conduct a judicial review of its decisions or
finding, is vague for two (2) reasons:
1. It is unclear what the phrase “application for remedy”
or the word “findings” refers to; and,
2. It does not specifiy what procedural remedy is solely
allowable to this Court, save that the same be taken
only against a pure question of law.
The second paragraph of Section 14, RA 6770, which attempts
to effectively increase the Supreme Court’s appellate
jurisdiction without its advice and concurrence, is
unconstitutional and perforce, invalid.
The import of the above holding was that the decision of the
Ombudsman in criminal cases or non-administrative cases was no
longer subject to a Rule 65 review before the Supreme Court.
Rather, it would now be the Court of Appeals that would be vested
with subject matter jurisdiction over such remedy.
However, in Gatchalian v Ombudsman, G.R. No. 229288, August 1,
2018, citing the en banc case of Information Technology
Foundation v ComElec, G.R. No. 159139, June 6, 2017, the Supreme
Court clarified that:
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Gatchalian v. Ombudsman
As a final point, it must be pointed out that subsequent to the
Morales decision, the Court – likewise sitting En Banc – decided
the case of Information Technology Foundation of the
Philippines, et al. v Commission on Elections, where it again
upheld the difference of appellate procedure between orders or
decisions of the Ombudsman in administrative and non-
administrative cases. Thus:
As a preliminary procedural matter, we observe that while the
petition asks this Court to set aside the Supplemental
Resolution, which dismissed both administrative and criminal
complaints, it is clear from the allegations therein that what
petitioners are questioning is the criminal aspect of the assailed
resolution, i.e., the Ombudsman’s finding that there is no
probable cause to indict the respondents in the Ombudsman
cases. Movants in G.R. No. 159139 similarly question this
conclusion by the Ombudsman and accordingly pray that the
Ombudsman be directed to file an information with the
Sandiganbayan against the responsible ComElec officials and
conspiring private individuals.
In Kuizon v Desierto and Mendoza-Arce v Office of the
Ombudsman, we held that this Court has jurisdiction over
petitions for certiorari questioning resolutions or orders of the
Ombudsman in criminal cases. For administrative cases,
however, we declared in the case of Dagan v Office of the
Ombudsman (Visayas) that the petition should be filed with the
Court of Appeals in observance of the doctrine of hierarchy of
courts. The Dagan ruling homogenized the procedural rule with
respect to administrative cases falling within the jurisdiction of
the Ombudsman – first enunciated in Fabian v Desierto – that is,
all remedies involving the orders, directives, or decisions of the
Ombudsman in administrative cases, whether by an appeal
under Rule 43 or a petition for certiorari under Rule 65, must be
filed with the Court of Appeals. Xxx
The Ombudsman’s determination of probable cause may only
be assailed through certiorari proceedings before this Court on
the ground that such determination is tainted with grave abuse
of discretion. Not every error in the proceedings or every
erroneous conclusion of law or fact, however, constitutes grave
abuse of discretion. It has been stated that the Ombudsman may
err or even abuse the discretion lodged in her by law, but such
error or abuse alone does not render her act amenable to
correction and annulment by the extraordinary remedy of
certiorari. To justify judicial intrusion into what is fundamentally
the domain of another constitutional body, the petitioner must
clearly show that the Ombudsman committed grave abuse of
discretion amounting to lack or excess of jurisdiction in making
her determination and in arriving at the conclusion reached. For
there to be a finding of grave abuse of discretion, it must be
shown that the discretionary power was exercised in an
arbitrary or despotic manner by reason of passion or personal
hostility, and the abuse of discretion must be so patent and
gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act in contemplation
of law.
It is thus clear that the Morals decision never intended to disturb
the well-established distinction between the appellate remedies
for orders, directives, and decisions arising from administrative
147
cases and those arising from non-administrative or criminal
cases.
Gatchalian’s contention that the unconstitutionality of Section
14 of R.A. 6770 declared in Morales equally applies to both
administrative and criminal cases – and thus the CA from then
on and had jurisdiction to entertain petitions for certiorari under
Rule 65 to question orders and decisions arising from criminal
cases – is simply misplaced. Section 14 of R.A. 6770 was declared
unconstitutional because it trampled on the rule-making powers
of the Court by (1) prescribing the mode of appeal, which was
by Rule 45 of the Rules of Court, for all cases whether final or
not; and (2) rendering nugatory the certiorari jurisdiction of the
CA over incidents arising from administrative cases.
The unconstitutionality of Section 14 of R.A. 6770, therefore, did
not necessarily have an effect over the appellate procedure for
orders and decisions arising from criminal cases precisely
because the said procedure was not prescribed by the
aforementioned section. To recall, the rule that decisions or
orders of the Ombudsman finding the existence of probable
cause (or the lack thereof) should be questioned through a
petition for certiorari under Rule 65 filed with the Supreme
Court was laid down by the Court itself in the cases of Kuizon,
Tirol Jr., Mendoza-Arce v Ombudsman, Estrada, and subsequent
cases affirming the said rule. The rule was, therefore, not
anchored on Section 14 of R.A. 6770, but was instead a rule
prescribed by the Court in the exercise of its rule-making
powers. The declaration of unconstitutionality of Section 14 of
R.A. 6770 was therefore immaterial insofar as the appellate
procedure for orders and decisions by the Ombudsman in
criminal cases is concerned.
The argument therefore that the promulgation of the Morales
decision - a case which involved an interlocutory order arising
from an administrative case, and which did not categorically
abandon the cases of Kuizon, Tirol, Jr., Mendoza-Arce, and
Estrada – gave the CA certiorari jurisdiction over final orders and
decisions arising from non-administrative or criminal cases is
clearly untenable.
APPEAL UNDER RULE 43 IS NOT AVAILABLE TO ALL PARTIES AND
IN ALL CASES
In administrative cases filed under the Civil Service Law, an allowed
appeal may only be brought by the party adversely affected by the
decision. Thus, the Ombudsman’s decision may not be appealed if
it dismisses the complaint or imposes the penalty of public censure
or reprimand, suspension of not more than one (1) month, or a fine
equivalent to one (1) month salary. Otherwise, it may be appealed
to the Court of Appeals under the requirements and conditions set
forth in Rule 43. Thus, where the Ombudsman’s decision
exonerates the respondent, the petitioner has no right to appeal it.
In determining whether the Ombudsman’s decision is appealable,
the deciding factor is the penalty imposed by the Ombudsman in
the decision itself (Canlas v Bongolan, G.R. No. 199625, June 6,
2018).
ARBITRATION IN GENERAL
The remedy against a judgment or award rendered in arbitration
depends on the law that provides arbitration as the means to
resolve a conflict.
ARBITRATION PURSUANT TO THE LABOR CODE
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
The remedy of appeal by petition for review under Rule 43 of the
Rules of Court is available to a party aggrieved by the decision or
award of the Voluntary Arbitrators or Panels of Arbitrators. Article
212 of the Labor Code defines a Voluntary Arbitrator as any “person
accredited by the Board as such or any person named or designated
in the Collective Bargaining Agreement by the parties to act as their
Voluntary Arbitrator, or one chosen with or without the assistance
of the National Conciliation and Mediation Board, pursuant to a
selection procedure agreed upon in the Collective Bargaining
Agreement, or any official that may be authorized by the Secretary
of Labor and Employment to act as Voluntary Arbitrator upon the
written request and agreement of the parties toa labor dispute.”
Under the Article 275 of the same Code, a Voluntary Arbitrator or
panel of Voluntary Arbitrators, upon agreement of the parties, may
hear and decide all other labor disputes including unfair labor
practices and bargaining deadlocks. Under Article 276, the award
or decision of the Voluntary Arbitrator or panel of Voluntary
Arbitrators shall contain the facts and the law on which it is based.
It shall be final and executory after ten (10) calendar days from
receipt of the copy of the award or decision by the parties. Note
that the period of 10 calendar days is in conflict with the period
provided under Rule 43 which is 15 days.
In the en banc case of Guagua National Colleges v Court of Appeals,
G.R. No. 188492, August 28, 2018, the Supreme Court resolved the
conflict by declaring that the 10-day period stated in Article 276
should be understood as the period within which the party
adversely affected by the ruling of the Voluntary Arbitrators or
Panel of Arbitrators may file a motion for reconsideration. Only
after the resolution of the motion for reconsideration may the
aggrieved party appeal to the CA by filing the petition for review
under Rule 43 of the Rules of Court within 15 days from notice
pursuant to Section 4 of Rule 43.
ARBITRATION PURSUANT TO EO 1008
Under Section 4 of Executive Order No. 1008, or the Construction
Industry Arbitration Law, the Construction Industry Arbitration
Commission (CIAC) has original and exclusive jurisdiction over
disputes arising from, or connected with, contracts entered into by
parties involved in construction in the Philippines, whether the
dispute arises before or after the completion of the contract, or
after the abandonment or breach thereof. These disputes may
involve government or private contracts. To acquire jurisdiction,
the parties to a dispute must agree to submit the same to voluntary
arbitration.
Under Section 19 of the same law, the arbitral award shall be
binding upon the parties. It shall be final and not appealable except
on questions of law to the Supreme Court. Thus, the proper remedy
was an appeal by certiorari under Rule 45. However, with the
promulgation of the 1997 Rules of Civil Procedure, decisions of the
CIAC were made specifically subject to appeal to the CA under Rule
43. Section 1 specifically includes the CIAC as one of the quasi-
judicial agencies from whose decisions a petition for review under
Rule 43 may be filed.
While 43 petitions may pertain to question of fact, question of law,
or both questions of law and fact, it has been established that
factual findings of CIAC may not be reviewed on appeal (Metro Rail
Transit v Gammon Phils., Inc., G.R. No. 200401, January 17, 2018).
ARBITRATION UNDER RA 876
148
Under Section 29 of Republic Act No. 876, or the Arbitration Law,
the mode of appeal was via petition for review on certiorari, but
such appeal is limited to questions of law. While the Arbitration Law
did not specify which Court had jurisdiction to entertain the appeal,
the mode of appeal, being limited to question of law, can be
interpreted as an appeal by certiorari to the Supreme Court under
Rule 45.
However, the allowed appeal is not from the arbitral award itself. It
was from an order of the Regional Trial Court by which the award
is confirmed, vacated, modified, or corrected.
ARBITRATION UNDER THE ADR LAW
Under Republic Act No. 9285, or the Alternative Dispute Resolution
Act of 2004, arbitration is an alternative mode of dispute resolution
outside of the regular court system. Although adversarial in
character, arbitration is technically not litigation. It is a voluntary
process in which one or more arbitrator – appointed according to
the parties’ agreement or according to the applicable rules of the
ADR Law – resolve a dispute by rendering an award. It is not the
same as arbitration under the Labor Code. An arbitral tribunal is not
considered a quasi-judicial body or agency for the purpose of Rule
43. The quasi-judicial bodies enumerated in Rule 43 are creatures
of law. On the other hand, an arbitral tribunal’s powers stem from
the obligatory force of the arbitration agreement and its ancillary
stipulations. Simply put, an arbitral tribunal is a creature of
contract.
Neither the Arbitration Law (Republic Act No. 876) nor the ADR Law
allows a losing party to directly appeal from the arbitral award. The
statutory absence of an appeal mechanism reflects the State’s
policy of upholding the autonomy of arbitration proceedings and
their corresponding arbitral awards. An arbitral award is not
appealable via rule 43 because:
1. There is no statutory basis for an appeal from the final
award of arbitrators;
2. Arbitrators are not quasi-judicial bodies; and,
3. Rule 19.7 of the Special Rules of Court on Alternative
Dispute Resolution (Special ADR Rules, A.M. No. 07-11-
08-SC, which took effect on October 30, 2009) specifically
prohibit the filing of an appeal to question the merits of
an arbitral award (see Fruehauf Electronics v Team
Pacific, G.R. No. 204197, November 23, 2016).
A losing party is likewise precluded from resorting to certiorari
under Rule 65 of the Rules of Court. Certiorari is a prerogative writ
designed to correct errors of jurisdiction committed by a judicial or
quasi-judicial body. Because an arbitral tribunal is not a
government organ exercising judicial or quasi-judicial powers, it is
removed from the ambit of Rule 65.
In FRUEHAUF ELECTRONICS v. TEAM PACIFIC, ibid., the Supreme
Court held that the only remedy against a final domestic arbitral
award is to file petition to vacate or to modify or correct the award
not later than thirty (30) days from the receipt of the award. Unless
a ground to vacate has been established, the RTC must confirm the
arbitral award as a matter of course. The Special ADR Rules allow
the RTC to correct or modify an arbitral award pursuant to Section
25 of the Arbitration Law. However, this authority cannot be
interpreted as jurisdiction to review the merits of the award.
Once the RTC orders the confirmation, vacation, or
correction/modification of a domestic arbitral award, the aggrieved
party may move for reconsideration within a non-extendible period
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of fifteen (15) days from receipt of the order. The losing party may
also opt to appeal from the RTC’s ruling instead.
Under Section 29 of the Arbitration Law, the mode of appeal from
the RTC’s ruling was via petition for review on certiorari, but such
appeal shall be limited to questions of law. While the Arbitration
Law did not specify which Court had jurisdiction to entertain the
appeal, the mode of appeal, being limited to questions of law, can
be interpreted as an appeal by certiorari to the Supreme Court
under Rule 45.
However, when the ADR Law was enacted in 2004, it specified that
the appeal shall be made to the CA in accordance with the rules of
procedure to be promulgated by the Supreme Court. The Special
ADR Rules then provided that the mode of appeal from the RTC’s
order confirming, vacating, or correcting/modifying a domestic
arbitral award was through a petition for review with the Court of
Appeals. This petition for review is not one brough under either
Rules 42, 43, or 45. It is a petition for review specifically provided
under the Special ADR Rules.
If none of the grounds to vacate an arbitral award are present, the
merits of the award cannot be reviewed by the courts as there is no
law granting the judiciary to do so. Thus, neither the RTC nor the CA
has the power to reverse an arbitral award even if such courts
disagree with the arbitral tribunal’s factual finding and application
of the law. Courts are precluded from disturbing an arbitral
tribunal’s factual findings and interpretations of law. Otherwise,
the obligatory force of arbitration agreements is eroded by allowing
the losing parties to “forum shop” for a more favorable ruling from
the judiciary.
Section 2. Cases not covered. – This Rule shall not apply to
judgments or final orders issued under the Labor Code of the
Philippines. (n)
REVIEW OF NLRC JUDGMENTS AND FINAL ORDERS
Under our present labor laws, there is no provision for appeals from
the decision of the NLRC. Under Article 229 of the Labor Code, all
decisions of the NLRC shall be final and executory after ten (10)
calendar days from receipt thereof by the parties. Nevertheless,
appellate courts – including the Supreme Court – still have an
underlying power to scrutinize decisions of the NLRC on questions
of law even though the law gives no explicit right to appeal. Simply
said, even if there is no direct appeal from the NLRC decisions, the
aggrieved party still has a legal remedy (Gabriel v Petron
Corporation, G.R. No. 194575, April 11, 2018).
In St. Martin Funeral Home v NLRC, G.R. No. 130866, September 16,
1998, Supreme Court laid down the proper recourse should the
aggrieved party seek judicial review of the NLRC decision and stated
that: “all references in the amended Section 9 of B.P. No. 129 to
supposed appeals from the NLRC to the Supreme Court are
interpreted and hereby declared to mean and refer to petitions for
certiorari under Rule 65. Consequently, all such petitions should
henceforth be initially filed in the Court of Appeals in strict
observance of the doctrine on the hierarchy of courts as the
appropriate forum for the relief desired.” In short, the remedy of
the party aggrieved by a judgment of the Labor Arbiter is to appeal
to the NLRC. From the NLRC, his remedy is to file a special civil
action for certiorari under Rule 65 to the CA.
In petitions for certiorari brought before the CA, it must be
highlighted that the latter’s parameter of analysis in cases elevated
149
to it from the NLRC is the existence of grave abuse of discretion
which may be ascribed to the NLRC when, inter alia, its findings and
conclusions reached are not supported by substantial evidence, or
that amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion (Philsynergy Maritime,
Inc. v Gallano, Jr., G.R. No. 228504, June 6, 2018).
Factual findings of labor officials, who are deemed to have acquired
expertise in matters within their jurisdiction, are generally
accorded not only respect but even finality by the courts when
supported by substantial evidence and affirmed by the CA, in the
exercise of its expanded jurisdiction to review findings of the NLRC
(Phil. Geothermal, Inc. Employees Union (PGIEU) v Chevron
Geothermal Phils. Holdings, Inc., G.R. No. 207252, January 24,
2018).
From the Court of Appeals, the labor case is then elevated to the
Supreme Court for final review. However, pursuant to Gabriel v
Petron Corporation, ibid., the Supreme Court, in reviewing labor
cases through a petition for review on certiorari, the Supreme Court
is solely confronted with whether the CA correctly determined the
presence or absence of grave abuse of discretion in the NLRC
decision before it, and not whether the NLRC decision on the merits
of the case was correct. Specifically, the Supreme Court is limited
to:
1. Ascertaining the correctness of the CA’s decision in
finding the presence or absence of grave abuse of
discretion. This is done by examining, on the basis of the
parties’ presentations, whether the CA correctly
determined that at the NLRC level, (a) all the adduces
pieces of evidence were considered; (b) no evidence
which should not have been considered was considered;
and (c) the evidence presented supports the NLRC’s
findings; and,
2. Deciding other jurisdictional error that attend the CA’s
interpretation or application of the law.
Section 3. Where to appeal. – An appeal under this Rule may be
taken to the Court of Appeals within the period and in the
manner herein provided, whether the appeal involves questions
of fact, of law, or mixed questions of fact and law. (n)
Section 4. Period of appeal. – The appeal shall be taken withing
fifteen (15) days from notice of the award, judgment, final order
or resolution, or from the date of its last publication, if
publication. Is required by law for its effectivity, or of the denial
of petitioner’s motion for new trial or reconsideration duly filed
in accordance with the governing law of the court or agency a
quo. Only on (1) motion for reconsideration shall be allowed.
Upon proper motion and the payment of the full amount of the
docket fee before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen (15)
days only within which to file the petition for review. No further
extension shall be granted except for the most compelling
reason and in no case to exceed fifteen (15) days. (n)
APPEAL UNDER RULE 43 IS NOT A CONSTITUTIONAL RIGHT
Appeal, including one taken under Rule 43, is not a constitutional
right, but a mere statutory privilege. Failure to file or perfect an
appeal within the reglementary period will make the judgment final
and executory by operation of law. Perfection of an appeal within
the said period is not only mandatory but also jurisdictional. Under
Section 3, the appeal shall be taken within fifteen (15) days from
the notice of the award, judgment, final order or resolution, or from
the date of its last publication, if publication is required by law for
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its effectivity, or of the denial of petitioner’s motion for new trial or
reconsideration duly filed in accordance with the governing law of
the court or agency a quo (ABS-CBN Publishing, Inc. v Director of
the Bureau of Trademarks, G.R. No. 217916, June 20, 2018). Only
one motion for reconsideration is allowed.
Section 7 is explicit when it states that failure of the petitioner to
comply with any of the requirements regarding the payment of the
docket and other lawful fees, the deposit for costs, proof of service
of the petition, and the contents of and the documents which
should accompany the petition shall be sufficient ground for the
dismissal thereof.
RIVERA-PASCUAL v SPOUSES LIM
G.R. No. 191837 | September 19, 2012
FACTS: Consolacion filed with the CA a petition for review under
Rule 43 of the Rules of Court to assail a Decision rendered by the
DARAB. The CA resolved to require Consolacion’s counsel to
submit within five (5) days from notice his Mandatory
Continuing Legal Education (MCLE) Certificate of Compliance or
Exemption and an amended Verification and Certification
Against Non-Forum Shopping. Apparently, Consolacion’s
counsel failed to indicate in the petition his MCLE Certificate of
Compliance or Exemption Number as required under Bar Matter
No. 1922. Also, the jurat of Consolacion’s verification and
certification against non-forum shopping failed to indicate any
competent evidence of Consolacion’s identity apart from her
community tax certificate. Considering the failure of
Consolacion and her counsel to comply, the CA issued a
Resolution dismissing the petition.
ISSUE: Whether the CA erred in summarily dismissing the
petition on technical grounds.
RULING: No. The CA did not err in dismissing Consolacion’s
petition before it on the ground of petitioner’s unexplained
failure to comply with basic procedural requirements attendant
to the filing of a petition for review under Rule 43 of the Rules
of Court. Notably, Consolacion and her counsel remained
obstinate despite the opportunity afforded to them by the CA to
rectify their lapses. While there was compliance, this took place,
however, after the CA had ordered the dismissal of
Consolacion’s petition and without reasonable cause proffered
to justify its belatedness. Consolacion and her counsel claimed
inadvertence and negligence, but they did not explain the
circumstances thereof. Absent valid and compelling reasons, the
requested leniency and liberality in the absence of procedural
rules appears to be an afterthought, hence cannot be granted.
The CA show no compelling need meriting the relaxation of the
rules.
MOTIONS FOR EXTENSION
While the CA enjoys a wide latitude of discretion in granting a first
motion for extension of time, its authority to grant a further or
second motion for extension of time is delimited by two conditions:
first, there must exist a most compelling reason for the grant of a
further extension; and second, in no case shall such extension
exceed fifteen (15) days (Albor v Court of Appeals, G.R. No. 196598,
January 17, 2018).
Section 5. How appeal taken. – Appeal shall be taken by filing a
verified petition for review in seven (7) legible copies with the
Court of Appeals, with proof of service of a copy thereof on the
150
adverse party and on the court or agency a quo. The original
copy of the petition intended for the Court of Appeals shall be
indicated as such by the petitioner.
Upon the filing of the petition, the petitioner shall pay to the
clerk of court of the Court of Appeals the docketing other lawful
fees and deposit the sum of P500.00 for costs. Exemption from
payment of docketing and other lawful fees and the deposit for
costs may be granted by the Court of Appeals upon a verified
motion setting forth valid grounds therefor. If the Court of
Appeals denies the motion, the petitioner shall pay the
docketing and other lawful fees and deposit for costs within
fifteen (15) fays from notice of the denial. (n)
HOW APPEAL IS TAKEN
The appeal under Rule 43 shall be taken by filing a verified petition
for review. The rule required seven (7) legible copies of the petition
to be filed with the Court of Appeals, with proof of service of a copy
thereof on the adverse party and on the court or agency a quo.
Similar to Rule 42, the original copy of the petition intended for the
CA shall be indicated as such by the petitioner.
However, Section 5 (b) of A.M. No. 11-9-4-SC or the Efficient Use of
Paper Rule now only requires one original (properly marked) and
two copies with their annexes. The requirement of prior service
remains the same.
PAYMENT, AND EXEMPTION FROM PAYMENT, OF FEES
Upon the filing of the petition, the petitioner is required to pay to
the clerk of court of the Court of Appeals the docketing and other
lawful fees and deposit the sum of P500.00 for costs.
Exemption from payment of docketing and other lawful fees and
the deposit for costs may be granted by the CA upon a verified
motion setting forth valid grounds therefor. However, if the CA
denies the motion, the petitioner shall pay the docketing and other
lawful fees and deposit for costs within fifteen (15) days from notice
of the denial.
Section 6. Contents of the petition. – The petition for review
shall (a) state the full names of the parties to the case, without
impleading the court or agencies either as petitioners or
respondents; (b) contain a concise statement of the facts and
issues involved and the grounds relied upon for the review; (c)
be accompanied by a clearly legible duplicate or a certified true
copy of the award, judgment, final order or resolution appealed
from, together with certified true copies of such material
portions of the record referred to therein and other supporting
papers; and (d) contain a sworn certification against forum
shopping as provided in the last paragraph of Section 2, Rule 42.
The petition shall state the specific material dates showing that
it was filed within the period fixed herein. (2a)
REQUIRED CONTENTS
Under Section 6, the petition for review shall:
1. State the full names of the parties to the case, without
impleading the court or agencies either as petitioners or
respondents;
2. Contain a concise statement of the facts and issues
involved and the grounds relied upon for the review;
3. Be accompanied by a clearly legible duplicate original or
a certified true copy of the award, judgment, final order
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or resolution appealed from, together with certified true
copies of such material portions of the record referred to
therein and other supporting papers;
4. Contain a sworn certification against forum shopping;
and,
5. State the specific material dates showing that it was filed
within the reglementary period.
Section 7. Effect of failure to comply with requirements. – The
failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other
lawful fees, the deposit for costs, proof of service of the petition,
and the contents of and the documents which should
accompany the petition shall be sufficient grounds for the
dismissal thereof. (n)
Section 8. Action on the petition. – The Court of Appeals may
require the respondent to file a comment on the petition not a
motion to dismiss, within ten (10) days from notice, or dismiss
the petition if it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the questions raised
therein are too unsubstantial to require consideration. (6a)
Section 9. Contents of comment. – The comment shall be filed
within ten (10) days from notice in seven (7) legible copies and
accompanied by clearly legible certified true copies of such
material portions of the record referred to therein together with
other supporting papers. The comment shall (a) point out
insufficiencies or inaccuracies in petitioner’s statement of facts
and issues; and (b) state the reasons why the petition should be
denied or dismissed. A copy thereof shall be served on the
petitioner, and proof of such service shall be filed with the Court
of Appeals. (9a)
ACTION ON THE PETITION
Failure of the petitioner to comply with the requirements under
Sections 4 to 6 of the Rule allows the Court of Appeals to summarily
dismiss the petition for review. Even if the petition is found
compliant, the CA may still dismiss the petition if it finds that: (1)
the petition is patently without merit or prosecuted manifestly for
delay; or (2) the questions raised in the petition are too
unsubstantial to require consideration.
If the petition is not dismissed under Section 7 or Section 8, the CA
may then require the respondent to file a comment on the petition,
not a motion to dismiss, within ten (10) days from notice. The
comment, similar to the petition itself, should be filed in seven (7)
legible copies, with a copy served on the petitioner. Proof of such
service is required to be filed with the CA.
The comment shall:
1. Be accompanied by clearly legible certified true copies of
such material portions of the record referred to therein
together with other supporting papers. The respondent,
however, is not required to include a clearly legible
duplicate original or a certified true copy of the award,
judgment, final order or resolution appealed from in his
comment;
2. Point out insufficiencies or inaccuracies in petitioner’s
statement of facts and issues; and,
3. State the reasons why the petition should be denied or
dismissed.
151
Section 10. Due Course. – If upon the filing of the comment or
such other pleadings or documents as may be required or
allowed by the Court of Appeals or upon the expiration of the
period for the filing thereof, and on the records the Court of
Appeals finds prima facie that the court or agency concerned
has committed errors of fact or law that would warrant reversal
or modification of the award, judgment, final order or resolution
sought to be reviewed, it may give due course to the petition;
otherwise, it shall dismiss the same. The findings of fact of the
court or agency concerned, when supported by substantial
evidence, shall be binding on the Court of Appeals. (n)
Section 11. Transmittal of record – Within fifteen (15) days
from notice that the petition has been given due course, the
Court of Appeals may require the court or agency concerned to
transmit the original or a legible certified true copy of the entire
record of the proceeding under review. The record to be
transmitted may be abridged by agreement of all parties to the
proceeding. The Court of Appeals may require or permit
subsequent correction of or addition to the record. (8a)
DUE COURSE
The Court of Appeals may give due course to the petition if, upon
the filing of the comment or such other pleadings or documents as
may be required or allowed by it or upon the expiration of the
period for the filing thereof, and on the records it finds prima facie
that the court or agency concerned has committed errors of fact or
law that would warrant reversal or modification of the award,
judgment, final order or resolution sough to be reviewed, it may
give due course to the petition. Otherwise, it shall dismiss the same.
The fact that the CA gave due course to the petition presupposes
that it has found prima facie that the court or agency concerned has
committed errors of fact or law that would warrant reversal or
modification of the judgment appealed from. This means that the
petitioner’s contentions, if unrebutted, are sufficient for the CA to
make a finding of reversible error on the part of the tribunal a quo.
But this does not mean that the petitioner is, right there and then,
entitled to prevail. Due course merely presupposes that the CA
would give the subject matter of the petition further consideration
or examination.
To do so, the CA may, within fifteen (15) days from notice that the
petition has been given due course, require the court or agency
concerned to transmit the original or a legible certified true copy of
the entire record of the proceeding under review. The record to be
transmitted may be abridged by agreement of all parties to the
proceeding. The CA may require or permit subsequent correction
of or addition to the record.
WEIGHT GIVEN TO FINDINGS OF FACT
OF ADMINISTRATIVE TRIBUNALS
Rule 43, Section 10 of the Rules of Civil Procedure provides that
findings of fact of a quasi-judicial agency, when supported by
substantial evidence, shall be binding on the Court of Appeals
(Galindez v Firmalan, G.R. No. 187186, June 6, 2018). Time and
again, the Supreme Court has held that findings of fact of quasi-
judicial agencies are generally accorded respect and even finality, if
supported by substantial evidence, in recognition of their expertise
on the specific matters under their consideration, sore so if the
same has been upheld by the appellate court (De La Salle
Montessori International of Malolos, Inc. v De La Salle brothers,
Inc., G.R. No. 205548, February 7, 2018). By reason of their special
knowledge and expertise over matters falling under their
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jurisdiction, administrative agencies are in a better position to pass
judgment on the same, and their findings of fact are generally
accorded great respect, if not finality, by the courts (Delos Reyes v
Municipality of Kalibo, Aklan, G.R. No. 214587, February 26, 2018).
Section 12. Effect of appeal. – The appeal shall not stay the
award, judgment, final order or resolution sought to be received
unless the Court of Appeals shall direct otherwise upon such
terms as it may deem just. (10a)
EFFECT OF APPEAL
Take note that the appeal by petition for review does not stay the
award, judgment, final order or resolution. This is in contrast to
Rule 42, Section 8 which stays the judgment in case a petition for
review is filed, as a general rule.
SUBMISSION FOR DECISION
Section 13. Submission for decision. – If the petition is given due
course, the Court of Appeals may set the case for oral argument
or require the parties to submit memoranda within a period of
fifteen (15) days from notice. The case shall be deemed
submitted for decision upon the filing of the last pleading or
memorandum required by these Rules or by the Court of
Appeals. (n)
As a further effect of giving of due course to the petition, the Cout
of Appeals may either:
1. Set the case for oral argument; or
2. Require the parties to submit memoranda within a period
of fifteen (15) days from notice.
The case shall be deemed submitted for decision upon the filing of
the last pleading or memorandum required by the Rules or by the
Court of Appeals itself.
APPLICATION OF RULE 45
Appeal by certiorari to the Supreme Court, also commonly known
as petition for review on certiorari applies in the following cases:
152
RULE 45
APPEAL BY CERTIORARI TO THE SUPREME COURT
*Compiled and Updated by: JZE and LCYE
Section 1. Filing of petition with Supreme Court. – A party
desiring to appeal by certiorari from a judgment, final order or
resolution of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a
verified petition for review on certiorari. The petition may
include an application for a writ of preliminary injunction or
other provisional remedies and shall raise only questions of law
which must be distinctly set forth. The petitioner may seek the
same provisional remedies by verified motion filed in the same
action or proceeding at any time during its pendency. (As
amended by A.M. No. 07-7-12-SC, December 12, 2007.)
REQUIREMENTS UNDER RULE 45, AT A GLANCE
DEEPAK KUMAR v. PEOPLE
G.R. No. 2477661 | June 15, 2020
From Rule 45’s provisions will be gleaned basic procedural
standards which a petitioner must satisfy if one’s Rule 45
Petition is to be entertained:
(1) That the petition does not only exclusively raise
questions of law, but also that it distinctly sets forth
those legal issues;
(2) That it be filed within 15 days of notice of the adverse
ruling that impels it;
(3) That docket and other lawful fees are paid;
(4) That proper service is made;
(5) That all matters that Section 4 specifies are indicated,
stated, or otherwise contained in it;
(6) That it is manifestly meritorious;
(7) That it is not prosecuted manifestly for delay; and
(8) That the questions raised in it are of such substance as
to warrant consideration.
Failing in these, this Court is at liberty to deny outright or deny
due course to a Rule 45 Petition. Any such denial may be done
without the need of any further action, such as the filing of
responsive pleadings or submission of documents, the election
of records, or the conduct of oral arguments.
Furthermore, this Court’s denial may come in the form of a
minute resolution which does not go into the merits of the case,
and instead merely states which among the eight (8) standards
it is based. A denial by minute resolution does not violate the
constitutional imperative that judicial decisions
“[express]…clearly and distinctly the facts and the law on which
[they are] based.” This is because any such minute resolution is
not a judgment on a case, but it is a declaration that a Rule 45
petition is insufficient in form and substance.
Hence, it is that petition’s manifest inadequacies that prevent it
from proceeding any further, not the ultimate quality of its
factual and legal assertions.
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(a) Appeal from a judgment or final order of the Regional Trial
Court in cases where only questions of law are raised or are
involved
So it was that Rule applied only when the decision of the Regional
Trial Court is in the exercise of its original jurisdiction because when
the decision is rendered by the Regional Trial Court in the exercise
of its appellate jurisdiction, regardless of whether the appellant
raises questions of fact, questions of law, or mixed questions of fact
and law, the appeal shall be bought to the Court of Appeals by filing
a petition for review under Rule 42, even if only a question of law
is raised (QUEZON CITY v. ABS-CBN BROADCASTING
CORPORATION, G.R. No. 166408, October 6, 2008). A decision
rendered by the Regional Trial Court in the exercise of its appellate
jurisdiction, as when it was brought before it from the Municipal
Trial Court, should be elevated to the Court of Appeals under Rule
42 instead of appealing directly before the Supreme Court under
Rule 45 even if it raises a pure question of law (FIVE STAR
MARKETING CO., INC. v. BOOC, 33 SCRA 28).
However, based on more recent jurisprudence, the Supreme Court
itself has recognized, in BARCENAS v. SPOUSES TOMAS (G.R. No.
150321, March 31, 2005) and INTRAMUROS ADMINISTRATION v.
OFFSHORE CONSTRUCTION (G.R. No. 196795, March 7, 2018) that
a Rule 45 petition may be directly filed before it to assail a judgment
rendered by the RTC in the exercise of the latter’s appellate
jurisdiction.
(b) Appeal from the judgment, final order, or resolutions of the
Court of Appeals where the petition shall raise only questions
of law distinctly set forth (Section 1, Rule 46).
(c) Appeal from the judgment, final order, or resolution of the
Sandiganbayan where the petition shall raise only questions of
law distinctly set forth (Section 1, Rule 45).
(d) Appeal from the decision or ruling of the Court of Tax Appeals
en banc (Section 11, Republic Act 9282; Section 1, Rule 45 as
amended by A.M. No. 07-7-12-SC).
(e) Appeals from a judgment or final order in a petition for a Writ
of Amparo. While in other cases of appeal under Rule 45, only
questions of law may be raised, here the question raised need
not only be questions of law but also questions of fact or of
both law and fact (Section 19 of A.M. No. 07-9-12-SC or the
Rule on the Writ of Amparo).
(f) Appeals from a judgment or final order in a petition for a Writ
of Habeas Data. The appeal may raise questions of fact or law
or both (Section 19 of A.M. No. 08- 1-16-SC or the Rule on the
Writ of Habeas Data).
(g) Appeals from a judgment or final order in a petition for a Writ
of Kalikasan. The appeal may also raise questions of fact or law
or both (Part III, Rule 7, Section 16, A.M. No. 09-6-8-SC or the
Rules of Procedure for Environmental Cases).
The mode of appeal prescribed under Rule 45 is applicable to both
civil and criminal cases, except in criminal cases where the penalty
imposed is death, reclusion perpetua or life imprisonment (Section
9, Rule 45, Rules of Court).
153
THE PRINCIPLE OF HIERARCHY OF COURTS
DOES NOT APPLY TO A RULE 45 PETITION
The principle of hierarchy of courts does not find any application in
cases where the petition is filed under Rule 45, and not Rule 65
(VILLAREAL v. MWSS, G.R. No. 232202, February 28, 2018). The
Supreme Court is the court that has exclusive appellate jurisdiction
over petitions filed under Rule 45.
THE SUPREME COURT IS NOT A TRIER OF FACTS
As a rule, only questions of law may be raised under a petition for
review under Rule 45 because the Supreme Court is not a trier of
facts and the factual findings of lower courts are final, binding or
conclusive on the parties and to the Supreme Court (UNITED
COCONUT PLANTERS BANK v. SPOUSES UY, G.R. No. 2040389,
January 10, 2018). The findings of facts of the Court of Appeals are
not generally reviewable by the Supreme Court. The function of the
Supreme Court, not being a trier of facts, is limited to reviewing
errors of law committed by the lower courts, Thus, it accords
finality to the factual findings of the trial court, especially when
such findings are affirmed by the appellate court (PHILIPPINE
SAVINGS BANK v. SAKATA, G.R. No. 229450, June 17, 2020).
EXCEPTIONS
Factual questions are not the proper subject of an appeal by
certiorari. Nonetheless, the Supreme Court has recognized several
exceptions to the rule, including:
(a) When the findings are grounded entirely on speculation,
surmises or conjectures;
(b) When the inference made is manifestly mistaken, absurd
or impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of
facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the Court of Appeals went
beyond the issues of the case, or its findings are contrary
to the admissions of both the appellant and the appellee;
(g) When the findings are contrary to those of the trial court;
(h) When the findings are conclusions without citation of
specific evidence on which they are based;
(i) When the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the
respondent;
(j) When the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on
record; and
(k) When the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if
properly considered, would justify a different conclusion
(SOLIVA v. TANGGOL, G.R. No. 223429, January 29, 2020;
MENDOZA v. SPOUSES PALUGOD, G.R. No. 220517, June
20, 2018).
Although the Supreme Court may, in exceptional cases, delve into
questions of fact, these exceptions must be alleged, substantiated,
and proved by the parties before it may evaluate and review facts
of the case (CHAVEZ v. MARCOS, G.R. No. 185484, June 27, 2018).
A party cannot merely claim that his or her case falls under any of
the exceptions. He or she must demonstrate and prove that a
review of the factual findings is necessary (CANCIO v.
PERFORMANCE FOREIGN EXCHANGE CORPORATION, G.R. No.
182307, June 6, 2018).
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
A party who files a Rule 45 petition and asserts that his or her case
warrants this Court’s review of factual questions bears the burden
of proving two (2) things; first is the basic exceptionality of his or
her case such that the Supreme Court must go out of its way to
revisit the evidence; second is the specific factual conclusion that
he or she wants the Supreme Court to adopt in place of that which
was made by the lower tribunals (EBUENGA v. SOUTHFIELD
AGENCIES, INC., G.R. No. 208396, March 14, 2018).
A mere general statement in the petition that it falls under the
established exceptions because the judgment of the Court of
Appeals is based on a misappreciation of facts, that the findings are
grounded entirely on speculation, surmises, or conjectures and that
the inference is manifestly mistaken, absurd, or impossible, is not
sufficient. Aside from this general statement, the petitioner must
fully explain how the CA's findings are grounded entirely on
speculations, surmises, or conjectures; or how its inference is
manifestly mistaken, absurd, or impossible; or how its judgment is
based on a misappreciation of facts. Not only must the parties
allege that their case falls under the exception, but also parties
praying for a review of the factual findings of the CA should prove
and substantiate that their case clearly falls under the exception to
the rule. Without substantiating such allegations, the petition does
not merit a review of the factual findings of the lower court, as
affirmed by the CA (SOLIVA v. TANGGOL, G.R. No. 223429, January
29, 2020).
Additionally, the Supreme Court may entertain questions of fact in
appeals brought under Rule 45 from petitions for the Writs of
Kalisakan, Amparo and Habeas Data. The Supreme Court is also
allowed to tackle factual matters and issues pursuant to the third
paragraph of Section 18, Article VII of the 1987 Constitution which
provides that: “(t)he Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual basis
of the proclamation of martial law or the suspension of the privilege
of the writ or the extension thereof, and must promulgate its
decision thereon within thirty days from its filing.”
QUESTIONS OF FACTS VS. QUESTIONS OF LAW
A question of law arises when there is doubt as to what the law is
on a certain state of facts, while there is a question of fact when the
doubt arises as to the truth or falsity of the alleged facts; the test is
not the appellation given to a question by the party raising it, but
whether the appellate court can resolve the issue without
examining or evaluating the evidence, in which case, it is a question
of law; otherwise, it is a question of fact (VALDERAMA v.
ARGUELLES, G.R. No, 223660, April 02, 2018).
There is a question of law when it seeks to determine whether or
not the legal conclusions of the lower courts from a given set of
facts are correct, i.e. what is the law given a particular set of
circumstances. On the other hand, there is a question of fact when
the issue involves the truth or falsity of the parties’ allegations
(PHILIPPINE AIRLINES, INC. v. COMMISSIONER OF INTERNAL
REVENUE, G.R. Nos. 206079-80, January 17, 2018) and when the
question calls for an examination of the probative value of the
evidence presented by the litigants (REPUBLIC v. JABSON, G.R. No.
200223, June 6, 2018).
Thus, in a case where, in order to determine the veracity of the
petitioner’s main contention that it has established a prima facie
case against respondents through its documentary and testimonial
evidence, a reassessment and reexamination of the evidence is
necessary, Rule 45 is unavailing. So also, where the petitioner, for
154
example, merely takes issue with how the Court of Appeals
interpreted the acts of the judge and found no manifest partiality,
what is raised is not a question of law (CHAVEZ v. MARCOS, G.R.
No. 185484, June 27, 2018). The limited and discretionary judicial
review allowed under Rule 45 does not envision a re-evaluation of
the sufficiency of the evidence upon which respondent court’s
action was predicated (REPUBLIC v. CUENCA, G.R. No. 198393, April
4, 2018).
Conversely, a petition for review under Rule 45 is proper if the
underlying question for the Supreme Court's resolution pertains to
jurisdiction (FIRST SARMIENTO PROPERTY HOLDINGS, INC. v.
PHILIPPINE BANK OF COMMUNICATIONS, G.R. No. 202836, June
19, 2018).
QUESTIONS OF LAW
In CUNANAN v. LAZATIN (74 Phil. 917), the Supreme Court
identified the following as questions of law:
1. Where the issue is the construction or interpretation of
documentary evidence;
2. Where the case submitted is based upon an agreed
statement of facts;
3. Where all the facts are stated in the judgment and the
issue is the correctness of the conclusion.
PROVISIONAL REMEDIES
The petition for review on certiorari under Rule 45 may include an
application for a writ of preliminary injunction or other provisional
remedies. The petitioner may seek the same provisional remedies
by verified motion filed in the same action or proceeding at any
time during its pendency (Section 1, Rule 45 as amended by A.M.
No. 07-7-12 SC).
Section 2. Time for filing; extension. – The petition shall be filed
within fifteen (15) days from notice of the judgment or final
order or resolution appealed from, or of the denial of the
petitioner’s motion for new trial or reconsideration filed in due
time after notice of the judgment. On motion duly filed and
served, with full payment of the docket and other lawful fees
and the deposit for costs before the expiration of the
reglementary period, the Supreme Court may for justifiable
reasons grant an extension of thirty (30) days only within which
to file the petition. (1a, 5a)
PERIOD OF FILING
The petition for review shall be filed within fifteen (15) days from
notice of the judgment or final order or resolution appealed from,
or of the denial of the petitioner's motion for new trial or
reconsideration filed in due time after notice of the judgment. Take
note that the doctrine in NEYPES v. COURT OF APPEALS applies as
well to this mode of appeal. The petitioner has a fresh period of
fifteen (15) days from notice of the denial of his motion for new
trial or reconsideration within which to file his petition for review.
EXTENSION OF PERIOD
The SC may for justifiable reasons grant an extension of 30 days
only within which to file the petition if:
1. There is a motion to this effect duly filed and served;
2. The docket and other lawful fees and the deposit for costs
must have been paid in full; and
3. Both the motion and payment are made before the
expiration of the original reglementary period.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Rule 45, Section 2 is similar to Rule 42, Section 1, except that the
extension that may be granted is longer, i.e., 30 days compared to
15 days, respectively. Section 2 clearly provides for the period
within which a petition for review must be filed. Failure to file a
petition for review on certiorari, or a motion for extension to file it,
within the period prescribed under this provision results in a party’s
loss of right to appeal. Appeal, being a mere statutory right, must
be exercised in the manner and according to procedures laid down
by law (DARMPC v. DIAZ, G.R. No. 206331, June 4, 2018).
Section 3. Docket and other lawful fees; proof of service of
petition. – Unless he has theretofore done so, the petitioner
shall pay the corresponding docket and other lawful fees to the
clerk of court of the Supreme Court and deposit the amount of
P500.00 for costs at the time of the filing of the petition. Proof
of service of a copy thereof on the lower court concerned and
on the adverse party shall be submitted together with the
petition. (1a)
Section 4. Contents of petition. – The petition shall be filed in
eighteen (18) copies, with the original copy intended for the
court being indicated as such by the petitioner, and shall (a)
state the full name of the appealing party as the petitioner and
the adverse party as respondent, without impleading the lower
courts or judges thereof either as petitioners or respondents;
(b) indicate the material dates showing when notice of the
judgment or final order or resolution subject thereof was
received, when a motion for new trial or reconsideration, if any,
was filed and when notice of the denial thereof was received;
(c) set forth concisely a statement of the matters involved, and
the reasons or arguments relied on for the allowance of the
petition; (d) be accompanied by a clearly legible duplicate
original, or a certified true copy of the judgment or final order
or resolution certified by the clerk of court of the court a quo
and the requisite number of plain copies thereof, and such
material portions of the record as would support the petition;
and (e) contain a sworn certification against forum shopping as
provided in the last paragraph of section 2, Rule 42. (2a)
CONTENTS OF THE PETITION
Section 1 requires the petition to be verified. Section 4 requires that
the petition which shall be verified pursuant to Section 1 and filed
in eighteen (18) copies, with the original copy intended for the
court being indicated as such by the petitioner. However, this
requirement is already deemed amended by Section 5(a) of the
Efficient Use of Paper Rule which only requires one original
(properly marked) and four copies, unless the case is referred to the
Court En Banc, in which event, the parties shall file ten additional
copies. For the En Banc, the parties need to submit only two sets of
annexes, one attached to the original and an extra copy. For the
Division, the parties need to submit also two sets of annexes, one
attached to the original and an extra copy.
Parties to cases before the Supreme Court are further required to
submit, simultaneously with their court-bound papers, soft copies
of the same and their annexes (the latter in PDF format) either by
email to the Court’s e-mail address or by compact disc (CD).
The petition shall:
(a) State the full name of the appealing party as the
petitioner and the adverse party as respondent, without
impleading the lower courts or judges thereof either as
petitioners or respondents;
155
(b) Indicate the material dates showing when notice of the
judgment or final order or resolution subject thereof was
received, when a motion for new trial or reconsideration,
if any, was filed and when notice of the denial thereof
was received;
(c) Set forth concisely a statement of the matters involved,
and the reasons or arguments relied on for the allowance
of the petition;
(d) Be accompanied by a clearly legible duplicate original, or
a certified true copy of the judgment or final order or
resolution certified by the clerk of court of the court a quo
and the requisite number of plain copies thereof, and
such material portions of the record as would support the
petition; and
(e) Contain a sworn certification against forum shopping.
Section 5. Dismissal or denial of petition. – The failure of the
petitioner to comply with any of the foregoing requirements
regarding the payment of the docket and other lawful fees,
deposit for costs, proof of service of the petition, and the
contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition
on the ground that the appeal is without merit, or is prosecuted
manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration. (3a)
DISMISSAL OR DENIAL OF PETITION
Under Section 5, failure of the petitioner to comply with the
requirements under Sections 1 to 4. allows the SC to summarily
dismiss the petition for review on certiorari. And even if the petition
is found compliant, the SC may on its own initiative deny the
petition if it finds that:
(1) The petition is patently without merit or prosecuted
manifestly for delay; or
(2) The questions raised in the petition are too unsubstantial
to require consideration.
SUBSTANTIAL COMPLIANCE
The failure to attach material portions of the record will not
necessarily cause the outright dismissal of the petition. While Rule
45, Section 4 of the Rules of Court requires that the petition be
accompanied by such material portions of the record as would
support the petition, this Supreme Court may still give due course
to it if there is substantial compliance with the Rules, pursuant to
Rule 45, Section 7 (CANCIO v. PERFORMANCE FOREIGN EXCHANGE
CORPORATION, G.R. No. 182307, June 6, 2018)
Section 6. Review discretionary. – A review is not a matter of
right, but of sound judicial discretion, and will be granted only
when there are special and important reasons therefor. The
following, while neither controlling nor fully measuring the
court’s discretion, indicate the character of the reasons which
will be considered:
(a) When the court a quo has decided a question of
substance, not theretofore determined by the
Supreme Court, or has decided it in a way probably
not in accord with law or with the applicable decisions
of the Supreme Court; or
(b) 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. (4a)
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
APPEAL UNDER RULE 45 NOT A MATTER OF RIGHT
An appeal or a review under Rule 45 is not a matter of right, but of
sound judicial discretion, and will be granted only when special and
important reasons could justify the petition. The following are
examples of reasons which the court may consider in allowing the
petition:
(a) When the court below has decided a question of
substance not yet determined by the Supreme Court;
(b) When the court below decided a matter of substance in
a way that is not in accord with law or with the applicable
decisions of the Supreme Court;
(c) When the court below has departed from the accepted
and usual course of judicial proceedings, or so far
sanctioned such departure by a lower court, as to call for
the exercise of the power of supervision of the Supreme
Court (Section 6, Rule 45).
Every appeal to the Supreme Court is not a matter of right but of
sound judicial discretion with the exception of cases where the
penalty is death or reclusion perpetua. In such cases, an appeal is a
matter of right leaving the reviewing court without any discretion
(PEOPLE v. FLORES, G.R. No. 170565, January 31, 2006).
Section 7. Pleadings and documents that may be required;
sanctions. – For purposes of determining whether the petition
should be dismissed or denied pursuant to section 5 of this Rule,
or where the petition is given due course under section 8
hereof, the Supreme Court may require or allow the filing 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 therefor. (n)
Section 8. Due course; elevation of records. – If the petition is
given due course, the Supreme Court may require the elevation
of the complete record of the case or specified parts thereof
within fifteen (15) days from notice. (2a)
Section 9. Rule applicable to both civil and criminal cases. – The
mode of appeal prescribed in this Rule shall be applicable to
both civil and criminal cases, except in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment. (n)
CERTIORARI UNDER RULE 45 IS NOT THE SAME AS CERTIORARI
UNDER RULE 65
The following are the principal distinctions between a petition for
review on certiorari under Rule 45 and a petition for certiorari
under Rule 65:
(a) Certiorari under Rule 45 is a mode of appeal, while
certiorari under Rule 65 is a special civil action that is an
original action and not a mode of appeal. While both
Rules 45 and 65 are petitions for certiorari, the former is
a petition for review while the latter is an original special
civil action for certiorari.
(b) Certiorari under Rule 45 is but a continuation of the
appellate process over the original case. Certiorari under
Rule 65 is not a part of the appellate process but an
independent action.
(c) Because it is a mode of appeal, certiorari under Rule 45
seeks to review final judgments or final orders while
certiorari under Rule 65 may be directed against an
156
interlocutory order or matters from which no appeal may
be taken.
(d) Certiorari under Rule 45 raises questions of law while
certiorari under Rule 65 raises questions of jurisdiction
because a tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without jurisdiction or
in excess of jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction.
(e) An appeal by certiorari under Rule 45 shall be filed within
fifteen (15) days from notice of judgment or final order
appealed from while a petition for certiorari under Rule
65 shall be filed not later than sixty (60) days from notice
of judgment, order or resolution sought to be assailed
and in case a motion for reconsideration or new trial is
timely filed, whether such motion is required or not, the
sixty (60) day period shall be counted from notice of
denial of said motion (Section 4, Rule 65, Rules of Court;
A.M. No. 00-2-03 amending Section 4 of Rule 65).
(f) Certiorari under Rule 45 does not require a prior motion
for reconsideration while certiorari under Rule 65
requires as a general rule, a prior motion for
reconsideration because a motion for reconsideration is
a “plain, speedy and adequate remedy in the ordinary
course of law.”
(g) Certiorari under Rule 45 stays the judgment appealed
from while certiorari under Rule 65 does not stay the
judgment or order subject of the petition unless enjoined
or restrained (Section 7, Rule 65, Rules of Court).
(h) In certiorari under Rule 45, the parties are the original
parties with the appealing party as the petitioner and the
adverse party as respondent without impleading the
lower court or its judge while in certiorari under Rule 65,
the tribunal, board, officer exercising judicial or quasi-
judicial functions is impleaded as respondent (Section 5,
Rule 65, Rules of Court).
(i) In an appeal by certiorari under Rule 45, the petitioner
and respondent are also the original parties to the action
in the lower court. In certiorari as an original action, the
parties are the aggrieved party against the lower court or
quasi-judicial agency and the prevailing parties, who
thereby respectively become the petitioner and
respondents.
(j) Certiorari as a special civil action is filed with the Regional
Trial Court (Section 21, BP 129 as amended), the Court of
Appeals Section 9, BP 129 as amended) or with the
Supreme Court (Section 5[1], Art. VIII, Constitution of the
Philippines) whereas certiorari as a mode of appeal is
filed with the Supreme Court only.
TABLE OF DISTINCTIONS
The following table presents the distinctions between certiorari
under Rule 45 and certiorari under Rule 65:
RULE 45 RULE 65
A Rule 65 petition
A Rule 45 petition
is denominated as
is denominated as
a special civil
AS TO THE NAME a petition for
action for
OF THE REMEDY review on
certiorari or simply
certiorari or appeal
as a petition for
by certiorari.
certiorari.
Certiorari under Certiorari under
AS TO NATURE Rule 45 is a mode Rule 65 is a special
of appeal [Sec. civil action that is
 CIVIL PROCEDURE 157
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

2(c), Rule 41, Rules an original action Certiorari under

of Court]. and not a mode of Rule 65 does not
Certiorari under
appeal. AS TO WHETHER stay the judgment
Rule 45 stays the
Certiorari under FILING HAS A or order subject of
Certiorari under judgment
Rule 65 is not a STAYING EFFECT the petition unless
Rule 45 is but a appealed from.
AS TO CONTINUITY part of the enjoined or
continuation of the
OF THE APPELLATE appellate process restrained.
appellate process
PROCESS but an In certiorari under In certiorari under
over the original
independent Rule 45, the parties Rule 65, the
case.
action. are the original tribunal, board,
Certiorari under parties with the officer exercising
Because it is a
Rule 65 may be appealing party as judicial or quasi-
mode of appeal,
directed against an the petitioner and judicial functions is
certiorari under
AS TO SUBJECT interlocutory the adverse party impleaded as
Rule 45 seeks to
MATTER order or matters as respondent respondent. The
review final
from where no without parties are the
judgments or final
appeal may be impleading the aggrieved party
orders. AS TO THE PARTIES
taken. lower court or its against the lower
Certiorari under judge. In an appeal court or quasi-
Rule 65 raises by certiorari under judicial agency and
questions of Rule 45, the the prevailing
jurisdiction petitioner and parties, who
because a tribunal, respondent are thereby
board or officer also the original respectively
exercising judicial parties to the become the
AS TO ISSUES OR Certiorari under or quasi-judicial action in the lower petitioner and
QUESTIONS Rule 45 raises functions has court. respondents.
RAISED questions of law. acted without Certiorari as a
jurisdiction or in special civil action
excess of is filed with the
jurisdiction or with Regional Trial
grave abuse of Certiorari as a Court (Sec. 21, BP
discretion mode of appeal is 129 as amended),
AS TO WHICH
amounting to lack filed with the the Court of
COURT HAS
of jurisdiction Supreme Court Appeals (Sec. 9, BP
JURISDICTION
A petition for (Sec. 1, Rule 45, 129 as amended)
certiorari under Rules of Court). or with the
Rule 65 shall be Supreme Court
filed not later than [Sec. 5(1), Art. VIII,
sixty (60) days Constitution of the
from notice of Philippines].
judgment, order,
An appeal by
or resolution SIGNIFICANCE OF DISTINCTIONS
certiorari under
sought to be In ARTISTICA CERAMICA, HOMEOWNER'S ASSOCIATION, INC. v.
Rule 45 shall be
assailed and in CIUDAD DEL CARMEN, G.R. Nos. 167583-84, June 16, 2010, the
AS TO PERIOD OF filed within fifteen
case a motion for Supreme Court explained that one of the requisites of certiorari is
FILING (15) days from
reconsideration or that there be no available appeal or any plain, speedy and adequate
notice of judgment
new trial is timely remedy. Where an appeal is available, certiorari will not prosper,
or final order
filed, whether even if the ground therefor is grave abuse of discretion. It is also
appealed from.
such motion is well settled that a party cannot file a petition both under Rules 45
required or not, and 65 of the Rules of Court because said procedural rules pertain
the sixty (60) day to different remedies and have distinct applications. The remedy of
period shall be appeal under Rule 45 and the original action for certiorari under
counted from Rule 65 are mutually exclusive and not alternative or cumulative.
notice of denial of Thus, when petitioner adopts an improper remedy, petition may be
said motion. dismissed outright.
Certiorari under
Certiorari under Rule 65 does not However, the Court may set aside technicality for justifiable
AS TO THE NEED reasons as when the petition before it is clearly meritorious and
Rule 45 does not stay the judgment
FOR A PRIOR filed on time both under Rules 45 and 65 (THE INTERNATIONAL
require a prior or order subject of
MOTION FOR CORPORATE BANK, INC v. COURT OF APPEALS, G.R. No. 129910,
motion for the petition unless
RECONSIDERATION
reconsideration. enjoined or September 5, 2006). In accordance with the liberal spirit which
restrained. pervades the Rules of Court and in the interest of justice, the Court
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
may treat the petition as having been filed under Rule 45 (ASISTIO
v. PEOPLE, G.R. No. 200465, April 20, 2015).
SONIC STEEL INDUSTRIES v. COURT OF APPEALS
G.R. No. 165976 | July 29, 2010
Certiorari under Rule 65 is proper only if there is no appeal or
any plain, speedy and adequate remedy in the ordinary course
of law. For a writ of certiorari to issue, a petitioner must not only
prove that the tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of
jurisdiction but must also show that he has no plain, speedy and
adequate remedy in the ordinary course of law.
On September 29, 2004, petitioner received the assailed
September 17, 2004 Resolution denying reconsideration of the
dismissal of its petition with the CA. It could have filed an appeal
by certiorari under Rule 45 of the Rules of Court, but it did not.
Instead, it allowed almost two months to pass and then filed a_
petition for certiorari under Rule 65. Certiorari is not a substitute
for a lost appeal. The Rules preclude recourse to the special civil
action of certiorari if appeal, by way of a petition for review, is
available as the remedies of appeal and certiorari are mutually
exclusive and not alternative or successive.
BAR QUESTION 2006
Explain each mode of certiorari:
1. As a mode of appeal from the Regional Trial Court or
the Court of Appeals to the Supreme Court.
2. As a special civil action from the Regional Trial Court
or the Court of Appeals to the Supreme Court.
3. As a mode of review of the decisions of the National
Labor Relations Commission and the Constitutional
Commissions.
SUGGESTED ANSWER:
A petition for review on certiorari under Rule 45 of the Rules of
Court is a mode of appeal on pure questions of law as a general
rule from a judgment or final order or resolution of the CA or the
RTC to the SC.
A special civil action for certiorari under Rule 65 of the Rules of
Court is an original action from the RTC or the CA to the SC
against any tribunal, board or officer exercising judicial or quasi-
judicial functions raising the issue of lack or excess of jurisdiction
or grave abuse of discretion amounting to lack or excess of
jurisdiction, there being no appeal or any plain, speedy and
adequate remedy in the ordinary course of law.
The mode of review of the decision of the NLRC is via a special
civil action for certiorari under Rule 65, but pursuant to the
hierarchy of the courts enunciated in the case of ST. MARTIN’S
FUNERAL HOMES v. NLRC (G.R. No. 130866 September 16,
1998), the same should be filed in the CA. The mode of review
of the decision of the COMELEC and the Commission on Audit,
as provided under Rule 64 of the Rules of Court, is a special civil
action for certiorari under Rule 65. Decisions of the Civil Service
Commission, however, are reviewable by petition for review
filed with the CA under Rule 43 of the Rules of Court.
158
RULE 43
APPEALS FROM THE CTA AND QUASI-JUDICIAL AGENCIES TO
THE COURT OF APPEALS
*From the lectures of Atty. Jess Zachael Espejo
Section 1. Scope. – 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 or 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 Administration,
Energy Regulatory Board, National Telecommunications
Commission, Department of Agrarian Reform under Republic
Act No. 6657, Government Service Insurance System,
Employees Compensation Commission, Agricultural Inventions
Board, Insurance Commission, Philippine Atomic Energy
Commission, Board of Investments, Construction Industry
Arbitration Commission, and voluntary arbitrators authorized
by law. (n)
DISCUSSION
This is not an exclusive list because of the phrase “among these
agencies…”
COURT OF TAX APPEALS
By virtue of RA 9282, March 30, 2004, the Court of Tax Appeals has
been elevated to the level of a collegiate court that is co-equal with
the Court of Appeals. As such, the CA no longer has supervisory
authority over the CA.
We know for a fact that we have doctrines when we talk about basic
rules on civil procedure that a court cannot interfere with the
processes of a co-equal court. This means CA has no supervisory
authority over the CTA unlike before.
Rule 43 has therefore been amended to the effect that the CTA is
no longer covered by it.
SEC. 18. Appeal to the Court of Tax Appeals En Banc. -
No civil proceeding involving matter arising under the
National Internal Revenue Code, the Tariff and Customs
Code or the Local Government Code shall be maintained,
except as herein provided, until and unless an appeal has
been previously filed with the CTA and disposed of in
accordance with the provisions of this Act.
"A party adversely affected by a resolution of a Division
of the CTA on a motion for reconsideration or new trial,
may file a petition for review with the CTA en banc.
SEC. 19. Review by Certiorari. - A party adversely
affected by a decision or ruling of the CTA en banc may
file with the Supreme Court a verified petition for review
on certiorari pursuant to Rule 45 of the 1997 Rules of Civil
Procedure.
Under Section 18 of RA 9282, your remedy if you did not prevail in
CTA Division is to file a petition for review before the CTA en banc.
Under Section 19, if you want to question the resolution or
judgment of the CTA en banc, the only mode by which you can do
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
that is through a verified petition for review on certiorari pursuant
to Rule 45 on pure questions of law. If the law does not say that you
are allowed to raise questions of fact via a Rule 45 petition, that
cannot be made. We are to assume that under Rule 45, only
questions of law can be raised.
REMEDIES AGAINST OMBUDSMAN ORDERS
CRIMINAL CASES ADMINISTRATIVE CASES
(Finding of probable cause)
Special civil action for Appeal under Rule 43 or a
certiorari under Rule 65 Petition for Certiorari under
before the Supreme Court Rule 65 before the Court of
Appeals
Gatchalian vs. Ombudsman
G.R. No. 229288, August 01, 2018
Canlas vs. Bongolan
G.R. No. 199625 | June 6, 2018
HELD: In administrative cases filed under the Civil Service Law,
an allowed appeal may only be brought by the party adversely
affected by the decision. Thus, the Ombudsman's decision may
not be appealed if it dismisses the complaint or imposes the
penalty of public censure or reprimand, suspension of not more
than one (1) month, or a fine equivalent to one (1)-month salary.
Otherwise, it may be appealed to the Court of Appeals under the
requirements and conditions set forth in Rule 43 of the Rules of
Court.
Thus, where the Ombudsman’s decision exonerates the
respondent, the petitioner has no right to appeal it. In
determining whether the Ombudsman’s decision is appealable,
the deciding factor is the penalty imposed by the Ombudsman
in the decision itself.
ARBITRATION
The remedy against a judgment or award rendered in arbitration
depends on the law that provides arbitration as the means to
resolve a conflict. These laws include:
1. The Labor Code;
2. EO 1008;
3. RA 876; and
4. ADR Law of 2004
*Refer to Atty. JZE’s notes for the different kinds of arbitration.
LABOR CODE
The remedy of appeal by petition for review under Rule 43 of the
Rules of Court is available to a party aggrieved by the decision or
award of the Voluntary Arbitrators or Panels of Arbitrators.
Under Article 276, the award or decision of the VA or panel of Vas
shall be final and executory after ten (10) calendar days from
receipt of the copy of the award or decision by the parties. Note
that the period of 10 calendar days is in conflict with the period
provided under Rule 43 which is 15 days.
DISCUSSION
Resort to voluntary arbitration, you can see this in CBA. In case
there is a disciplinary action against an employee and there is
dispute arising from such, the dispute can be raised before the VA
under the CBA. The period is only 10 days from the receipt of the
copy of the award or decision. But remember that under Rule 43,
159
the period is 15 days. How do we reconcile? See case of Guagua
National Colleges vs. CA.
GUAGUA NATIONAL COLLEGES VS. CA
G.R. No. 188492 | August 28, 2018
HELD: The 10-day period stated in Article 276 should be
understood as the period within which the party adversely
affected by the ruling of the Voluntary Arbitrators or Panel of
Arbitrators may file a motion for reconsideration. Only after the
resolution of the motion for reconsideration may the aggrieved
party appeal to the CA by filing the petition for review under
Rule 43 of the Rules of Court within 15 days from notice
pursuant to Section 4 of Rule 43.
The SC thus interpreted that the 10-day period provided under
Article 276 to mean the period to file the motion for
reconsideration. The filing of motion for reconsideration became a
condition precedent to the filing of appeal under Rule 43 based on
the ruling above-mentioned.
EO 1008 – CONSTRUCTION INDUSTRY ARBITRATION LAW
Under Section 19 of EO 1008, or the Construction Industry
Arbitration Law, an arbitral award of the Construction Industry
Arbitration Commission (CIAC) shall be final and not appealable
except on questions of law to the Supreme Court. Thus, the proper
remedy was an appeal by certiorari under Rule 45.
However, with the promulgation of the 1997 Rules, decisions of the
CIAC were made specifically appealable to the CA under Rule 43,
Section 1.
This is one of the instances when the procedural law (1997 Rules)
amends substantive law (EO 1008).
RA 876 – ARBITRATION LAW
Under Section 29 of RA 876, or the Arbitration Law, the mode of
appeal was via petition for review on certiorari, but such appeal is
limited to questions of law. While the Arbitration Law did not
specify which Court had jurisdiction to entertain the appeal, the
mode of appeal, being limited to questions of law, can be
interpreted as an appeal by certiorari to the Supreme Court under
Rule 45.
However, the allowed appeal is not from the arbitral award itself. It
was from an order of the Regional Trial Court by which the award
is confirmed, vacated, modified, or corrected.
DISCUSSION
So, let’s say, you lost in arbitration, you have to file before the RTC
a petition to vacate or modify the arbitration award. That is the
remedy. If you are aggrieved by the decision of the RTC in that
petition to confirm, vacate, modify, or correct, that would be the
time you file an appeal via Rule 45.
Now, further complicating things are, albeit some provisions under
Arbitration Law under RA 876 are still maintained:
ADR LAW OF 2004 AND THE SPECIAL ADR RULES
An arbitral tribunal under RA 9285 is not considered a quasi-judicial
body or agency for purpose of Rule 43.
Neither the Arbitration Law (RA 876) nor the ADR Law allows a
losing party to directly appeal from the arbitral award. The
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
statutory absence of an appeal mechanism reflects the State’s
policy of upholding the autonomy of arbitration proceedings and
their corresponding arbitral awards.
A losing party is likewise precluded from resorting to certiorari
under Rule 65 of the Rules of Court. Certiorari is a prerogative writ
designed to correct errors of jurisdiction committed by a judicial or
quasi-judicial body. Because of an arbitral tribunal is not a
government organ exercising judicial or quasi-judicial powers, it is
removed from the ambit of Rule 65.
In FREHAUF ELECTRONICS v. TEAM PACIFIC, G.R. No. 204197,
November 23, 2016, the SC held that the only remedy against a
final domestic arbitral award is to file petition to vacate or to
modify/correct the award not later than thirty (30) days from the
receipt of the award.
Once the RTC orders the confirmation, vacation or
correction/modification of a domestic arbitral award, the aggrieved
party may move for reconsideration within a non-extendible period
of fifteen (15) days from receipt of the order. The losing party may
also opt to appeal from the RTC’s ruling instead.
The Special ADR Rules then provided that the mode of appeal from
the RTC’s order confirming, vacating, or correcting/modifying a
domestic arbitral award was through a petition for review with the
CA. This petition for review is not one brought under either Rules
42, 43 or 45. It is a petition for review specific to Special ADR Rules.
Section 2. Cases not covered. — This Rule shall not apply to
judgments or final orders issued under the Labor Code of the
Philippines.(n)
ST. MARTIN FUNERAL HOME, petitioner,
vs. NATIONAL LABOR RELATIONS COMMISSION and
BIENVENIDO ARICAYOS, respondents.
G.R. No. 130866, September 16, 1998
All references in the amended Section 9 of B.P. No. 129 to
supposed appeals from the NLRC to the Supreme Court are
interpreted and hereby declared to mean and refer to petitions
for certiorari under Rule 65. Consequently, all such petitions
should hence forth be initially filed in the Court of Appeals in
strict observance of the doctrine on the hierarchy of courts as
the appropriate forum for the relief desired.
DISCUSSION
So, the remedy would be to file a petition for certiorari under Rule
65 in the Court of Appeals in accordance with the doctrine of
hierarchy of courts.
In labor cases regarding illegal dismissal of employee, the latter will
file complaint before the Labor Arbiter in the place where he works.
Whoever loses between the employer and employee before the
Labor Arbiter, the mode of review will be filing an appeal before
NLRC. From there, you go to the Court of Appeals but it is supposed
to be Rule 65.
Section 3. Where to appeal. — An appeal under this Rule may
be taken to the Court of Appeals within the period and in the
manner herein provided, whether the appeal involves questions
of fact, of law, or mixed questions of fact and law. (n)
160
DISCUSSION
In other words, when you talk about Rule 43, you can raise or file
appeal that only raises questions of law similar to Rule 45. In several
cases, the SC said that it is not exclusive within us the questions of
law specifically if you talk about Rule 45 petition compared to a Rule
43 petition because under the latter, it can only be questions of law
that is subject of appeal.
Section 4. Period of appeal. — The appeal shall be taken within
fifteen (15) days from notice of the award, judgment, final order
or resolution, or from the date of its last publication, if
publication is required by law for its effectivity, or of the denial
of petitioner's motion for new trial or reconsideration duly filed
in accordance with the governing law of the court or agency a
quo. Only one (1) motion for reconsideration shall be allowed.
Upon proper motion and the payment of the full amount of the
docket fee before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen (15)
days only within which to file the petition for review. No further
extension shall be granted except for the most compelling
reason and in no case to exceed fifteen (15) days. (n)
APPEAL IS NOT A CONSTITUTIONAL RIGHT
Appeal, including one taken under Rule 43, is not a constitutional
right, but a mere statutory privilege. Failure to file or perfect an
appeal within the reglementary period will make the judgment final
and executory by operation of law. Perfection of an appeal within
the statutory or reglementary period is not only mandatory but also
jurisdictional. In other words, if the 15-day period already lapsed,
you lose your right to appeal.
Section 7 is explicit when it states that failure of the petitioner to
comply with any of the requirements regarding the payment of the
docket fees and other lawful fees, the deposit for costs, proof of
service of the petition, and the contents of and documents which
should accompany the petition shall be sufficient ground for the
dismissal thereof.
v PERIOD
ABS-CBN PUBLISHING, INC., Petitioner, v. DIRECTOR OF THE
BUREAU OF TRADEMARKS, Respondent.
G.R. No. 217916, June 20, 2018
The appeal shall be taken within fifteen (15) days from the
notice of the award, judgment, final order or resolution, or from
the date of its last publication, if publication is required by law
for its effectivity, or of the denial of petitioner's motion for new
trial or reconsideration duly filed in accordance with the
governing law of the court or agency a quo. Only one motion for
reconsideration is allowed.
DISCUSSION:
Only one motion is allowed because you can of course file a
motion for reconsideration in judgments, final orders or
resolutions of the quasi-judicial bodies.
v MOTIONS FOR EXTENSION
EDITHA B. ALBOR vs. COURT OF APPEALS, NERY A MACASIL
joined by her husband RUDY MACASIL and NORMA BELUSO,
joined by her husband NOLI BELUSO
G.R. No. 196598, January 17, 2018
While the CA enjoys a wide latitude of discretion in granting a
first motion for extension of time, its authority to grant a further
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
or second motion for extension of time is delimited by two
conditions:
First, there must exist a most compelling reason for the grant of
a further extension; AND
Second, in no case shall such extension exceed fifteen (15) days.
DISCUSSION:
If you are talking about case tried by a quasi-judicial agency, most
of the time what will happen there won’t be determination of facts.
There is no hearing similar to courts. What is done is only filing of
position papers and on that basis, the court will decide. There is no
ability similar to court cases to thresh out.
In case of quasi-judicial agency, everything is in a rush unlike in
court cases that it takes substantial amount of time to complete.
What happens is the moment that your client loses, you are only
given 15 days and it might be difficult for you to secure everything
that you need for filing your petitions for review under Rule 43.
That is why you can file for a motion for extension.
HOW APPEAL IS TAKEN [SECTION 5]
The appeal under Rule 43 was taken by filing a VERIFIED petition
for review in seven (7) legible copies with the Court of Appeals, with
proof of service of copy thereof on the adverse party and on the
court or agency a quo. Section 5(b) of A.M. No. 11-9-4-SC or the
Efficient Use of Paper Rule now only requires one original (properly
marked) and two copies with their annexes.
Similar to Rule 42, the original copy of the petition intended for the
CA shall be indicated as such by the petitioner.
DISCUSSION
That was the manner of filing before under Section 5. But you need
to remember that this is deemed amended already.
Just imagine that paper quantities being saved, instead of filing 7
copies, only an original with 2 copies with their annexes thus saving
a lot of paper. The purpose of Efficient Use of Paper Rule is an
environmental advocacy.
Why did I say deemed amended? Because this is the problem, the
CA sometimes dances to the beat of its own music. For example,
our very own case, we filed under the Efficient Use of Paper Rule
before the CA. Now, we received an order saying that we should file
7 legible copies not just 1 original and 2 copies with annexes
pursuant to the Rules of Court. Now, I questioned the CA that the
said rule applies to all courts of judiciary or even quasi-judicial
agencies being supervised by the SC. So, you need to remember
Rules, 7 legible copies. In Efficient Use of Paper Rule, 1 original and
2 copies with annexes if you are filing with CA.
PAYMENT, AND EXEMPTION FROM PAYMENT OF FEES (Section 5)
Upon the filing of the petition, the petitioner is required to pay to
the clerk of court of the Court of Appeals the docketing and other
lawful fees and deposit the sum of P500.00 for costs.
Exemption from payment of docketing and other lawful fees and
the deposit for costs may be granted by the CA upon a verified
motion setting forth valid grounds therefor. However, if the CA
denies the motion, the petitioner shall pay the docketing and other
lawful fees and deposit for costs within fifteen (15) days from notice
of the denial.
161
DISCUSSION
So, the costs are pre-paid here. With docketing and lawful fees, it
would depend on what you are asking for. If you’re asking for a Writ
of Preliminary Injunction or a Temporary Restraining Order coming
from the CA, your fees will be higher. That’s what happens in
practice.
Take note that the CA may exempt if you file a verified motion
setting forth valid grounds for exemption for the payment of the
fees. However, if the CA denies the motion, the petitioner shall pay
the docketing and other lawful fees and deposit for costs within 15
days from the notice of the denial.
Section 6. Contents of the petition. – The petition for review
shall (a) state the full names of the parties to the case, without
impleading the court or agencies either as petitioners or
respondents; (b) contain a concise statement of the facts and
issues involved and the grounds relied upon for the review; (c)
be accompanied by a clearly legible duplicate original or a
certified true copy of the award, judgment, final order or
resolution appealed from, together with certified true copies of
such material portions of the record referred to therein and
other supporting papers; and (d) contain a sworn certification
against forum shopping as provided in the last paragraph of
Section 2, Rule 42. The petition shall start the specific material
dates showing that it was filed within the period fixed therein.
REQUIRED CONTENTS (Section 6)
The petition for review shall:
1. State the full names of the parties to the case, without
impleading the court or agencies either as petitioners or
respondents;
So, if you are filing something against the CSC, you do not
include the CSC as respondent. That is not how you file
under Rule 43. So, you should only include the name of
the adverse party. It is very different from Rule 65 when
you need to implead as respondent the body or the court
that rendered the judgment or the court that had
exhibited grave abuse of discretion amounting to lack or
excess of jurisdiction. That is a big difference between
Rule 43 and Rule 65.
2. Contain a concise statement of the facts and issues
involved and the grounds relied upon for the review;
3. Be accompanied by a clearly legible duplicate original or
a certified true copy of the award, judgment, final order
or resolution appealed from, together with certified
true copies of such material portions of the record
referred to therein and other supporting papers;
4. Contain a sworn certification against forum shopping;
and
5. State the specific material dates showing that it was
filed within the reglementary period.
Again, that is what we call the Material Data Rule. The
rule is the same here. When you talk about Rules 40, 41,
or 42, it’s still the same. There are still specific material
dates under Rule 43.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
SUMMARILY DISMISSIBLE DUE TO FAILURE TO COMPLY WITH
REQUIREMENTS
Section 7. Effect of failure to comply with requirements. – The
failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other
lawful fees, the deposit for costs, proof of service of the petition,
and the contents of and the documents which should
accompany the petition shall be sufficient ground for the
dismissal thereof.
Take note that your Petition for Review is summarily dismissible
due to failure to comply with requirements. Violation of everything
that we just mentioned so far is already a sufficient ground for the
dismissal thereof.
Section 8. Action on the petition. – The Court of Appeals may
require the respondent to file a comment on the petition, not a
motion to dismiss, within ten (10) days from notice, or dismiss
the petition if it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the questions raised
therein are too unsubstantial to require consideration.
Under Section 8, this is what the CA can do. So, if the petitioner fails
to comply with the requirements under Sections 4 to 6, it allows the
CA to summarily dismiss the petition for review.
Even if the petition is found compliant – meaning you included the
required contents, you filed it in the requisite number of copies, and
you paid the docket fees and everything else – the CA may still
dismiss the petition if it finds that:
1. The petition is patently without merit or prosecuted
manifestly for delay; or
2. The questions raised in the petition are too
unsubstantial to require consideration.
If the petition is not dismissed under Sections 7 or 8, the CA may
require the respondent to file a comment on the petition, not a
motion to dismiss, within 10 days from notice.
So, you cannot file a motion to dismiss. You have to file a comment
when ordered to file the same. You cannot just file for a comment
without the CA’s order. Otherwise, you might be susceptible to a
motion to expunge on the ground that your pleading is not
authorized. That is a rule of thumb that you need to remember
when you become lawyers and then you are trying something
before the CA. You cannot file anything before the collegiate courts
– the CA, the SC – unless you are allowed or ordered to do so by
these courts.
Section 9. Contents of comment. – The comment shall be filed
within ten (10) days from notice in seven (7) legible copies and
accompanied by clearly legible certified true copies of such
material portions of the record referred to therein together with
other supporting papers. The comment shall (a) point out
insufficiencies or inaccuracies in petitioner’s statement of facts
and issues; and (b) state the reasons why the petition should be
denied or dismissed. A copy thereof shall be served on the
petitioner, and proof of such service shall be filed with the Court
of Appeals.
COMMENT (Section 9)
The comment, similar to the petition, at least under the 1997 Rules,
should be filed in 7 legible copies, with a copy served on the
162
petitioner and proof of such service filed with the CA. Again, Section
5(b) of A.M. No. 11-9-4-SC or the Efficient Use of Paper Rule now
only requires one original (properly marked) and two copies with
their annexes, if any. The comment shall:
1. Be accompanied by clearly legible certified true copies
of such material portions of the record referred to
therein together with other supporting papers. There is
no need to include a duplicate original or a certified true
copy of the subject judgment or final order.
Why is there no need to include a duplicate original or a
certified true copy of the subject judgment or final order?
Because it presupposes that we are already in the
comment stage where the petitioner already submitted
this. Because he was the one, under Sec. 6, required to
include or to attach duplicate original or a certified true
copy of the subject judgment or final order.
2. Point out insufficiencies or accuracies in petitioner’s
statement of facts and issues; and
3. State the reasons why the petition should be denied or
dismissed.
Section 10. Due course. – If upon the filing of the comment or
such other pleadings or documents as may be required or
allowed by the Court of Appeals or upon the expiration of the
period for the filing thereof, and on the records the Court of
Appeals finds prima facie that the court or agency concerned
has committed errors of fact or law that would warrant reversal
or modification of the award, judgment, final order or resolution
sought to be reviewed, it may give due course to the petition;
otherwise, it shall dismiss the same. The findings of facts of the
court or agency concerned, when supported by substantial
evidence, shall be binding on the Court of Appeals.
Pay particular attention to the term “substantial evidence”. We
need to remember that when we talk about judgments of quasi-
judicial agencies, the quantum of proof required is only substantial
evidence or that amount of evidence that a reasonable mind might
accept as adequate to support a conclusion. This is part of the 7
cardinal requirements of due process as laid down by the SC in Ang
Tibay v. Court of Industrial Relations.
Quantum of proof required in civil cases is preponderance of
evidence. For criminal cases, we know that to be proof beyond
reasonable doubt. We also have clear and convincing evidence.
Say for example, you are accused of killing somebody. And then you
plead the justifying circumstance of self-defense. You need to prove
that by what quantum of evidence? Clear and convincing evidence.
Q: If you received a notice coming from the CA that it is giving due
course to the petition, does that mean that you already won the
case?
A: No.
EFFECTS OF DUE COURSE
The fact that the CA gave due course to the petition presupposes
that it has found prima facie that the court or agency concerned has
committed errors of fact or law that would warrant reversal or
modification of the judgment appealed from. This means that the
petitioner’s contentions, if unrebutted, are sufficient for the CA to
make a finding of reversible error on the part of the tribunal a quo.
But this does not mean that the petitioner is, right there and then,
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

entitled to prevail. Due course merely presupposes that the CA
would give the subject matter of the petition further consideration
or examination. Because the general rule, the CA would not accept
it.
Q: How does the CA determine the case further?
A: To do so:
• FIRST, the CA may, within 15 days from notice that the
petition has been given due course require the court or
agency concerned to transmit the original or a legible
certified true copy of the entire record of the proceeding
under review.
DISCUSSION
This is similar to transmittal that will happen in appeals under Rules
40 and 41. What happens when you appeal, for example, from the
RTC to the CA? You will only file a Notice of Appeal as a general rule
if a record on appeal is not required. What would happen next
there? The appeal must be perfected. Expiration of the period to
file the appeal for the other side, what happens? There will be order
for transmittal of records. Prior to transmittal, we have what we call
“residual jurisdiction”. There are certain things that the RTC will
do.
• The record to be transmitted may be abridged by
agreement of all parties to the proceeding. The CA may
require or permit subsequent correction of or addition to
the record (Section 11, Rule 43).
DISCUSSION
The CA may further order the quasi-judicial agencies to submit. But
most of the time, the CA will simply order a party to do something
to cause the correction or addition of the record. Such that if you
do not comply with the order of the CA to complete, to correct, or
to add to the record, your appeal may be dismissed.
• SECOND, the CA may either: (1) set the case for oral
argument; or (2) require the parties to submit
memoranda within a period of fifteen (15) days from
notice (Section 13, Rule 43).
appellate court. By reason of their special knowledge and expertise
over matters falling under their jurisdiction, administrative
agencies are in a better position to pass judgment on the same
(DELOS REYES verses MUNICIAPLITY OF KALIBO, G.R. No. 214587,
Feb. 26, 2018).
Section 12. Effect of appeal. — The appeal shall not stay the
award, judgment, final order or resolution sought to be
reviewed unless the Court of Appeals shall direct otherwise
upon such terms as it may deem just. (10a)
DISCUSSION
Take note that appeal by petition for review under Rule 43 does not
stay the award, judgment, final order or resolution.
Whatever the judgment of the quasi-judicial agency is, the general
rule is that it can be executed. The fact that you filed a petition for
review or you appealed by way of petition for review under Rule 43
will not stay the execution [of the judgment], UNLESS you ask for a
restraining order. The CA will have to restrain the lower quasi-
judicial agency so that its judgment will not be executed.
This is in contrast to Rule 42, Section 8 which stays the judgment in
case a petition for review is filed, as a general rule.
Section 8 of Rule 42 clearly provides the effect that if you file a
petition for review, the judgment there would be stayed. It cannot
be executed just by the mere filing of a petition for review under
Rule 42.
Section 13. Submission for decision. — If the petition is given
due course, the Court of Appeals may set the case for oral
argument or require the parties to submit memoranda within a
period of fifteen (15) days from notice. The case shall be deemed
submitted for decision upon the filing of the last pleading or
memorandum required by these Rules or by the court of
Appeals. (n)

DISCUSSION
For example, if you are called for oral argument, you have to go to
Cagayan. Because there’s no CA here in Davao. The nearest and the
only CA for Mindanao cases would be the CA in Cagayan.

FINDINGS OF FACT
Rule 43, Section 10 provides that findings of fact of a quasi-judicial
agency, when supported by substantial evidence, shall be binding
on the CA (GALINDEZ versus FIRMALAN, G.R. No. 187186, June 6,
2018).

This is because they were in a better position to examine the factual

allegations of the parties. In other words, they are “closer” to the
parties. The quasi-judicial agencies had better opportunity to look
at and examine the factual allegations. Not to mention the fact that
quasi-judicial agencies have special knowledge and expertise over
matters falling under their jurisdiction. So, administrative agencies
are in a better position to pass judgment on such matter.

Findings of fact of quasi-judicial agencies are generally accorded

respect and even finality, if supported by substantial evidence, in
recognition of their expertise on the specific matters under their
consideration, more so if the same has been upheld by the
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 45
APPEAL BY CERTIORARI TO THE SUPREME COURT
*From the lectures of Atty. Jess Zachael Espejo
Section 1. Filing of petition with Supreme Court. – A party
desiring to appeal by certiorari from a judgment, final order or
resolution of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a
verified petition for review on certiorari. The petition may
include an application for a writ of preliminary injunction or
other provisional remedies and shall raise only questions of law,
which must be distinctly set forth. The petitioner may seek the
same provisional remedies by verified motion filed in the same
action or proceeding at any time during its pendency.
DISCUSSION
Let’s go to the last sentence first. You can ask for provisional
remedies – TRO, preliminary injunction, and so on and so forth.
Take note that in a Rule 45 petition, the ground would be
QUESTIONS OF LAW. As a general rule, you cannot raise questions
of fact under a Rule 45 petition.
DEPAK KUMAR v. PEOPLE
G.R. No. 247661 | June 15, 2020
Rule 45’s provisions will be gleaned basic procedural standards
which a petitioner must satisfy if one’s Rule 45 Petition is to be
entertained:
1. That the petition does not exclusively raise questions of
law, but also that it distinctly sets forth those legal issues;
o You have to frame the legal issues properly.
2. That it be filed within 15 days of notice of the adverse ruling
that impels it;
3. That docket and other lawful fees are paid;
4. That proper service is made;
5. That all matters that Section 4 specifies are indicated,
stated, or otherwise contained in it;
6. That it is manifestly meritorious;
7. That it is not prosecuted manifestly for delay; and
8. That the questions raised in it are of such substance as to
warrant consideration.
Failing in these, this Court is at liberty to deny outright or deny
due course to a Rule 45 Petition. Any such denial may be done
without the need of any further action, such as the filing of
responsive pleadings or submission of documents, the elevation
of records, or the conduct of oral arguments.
Furthermore, this Court’s denial may come in the form of a
minute resolution which does not go into the merits of the case,
and instead merely states which among the eight (8) standards
it is based. A denial by minute resolution does not violate the
constitutional imperative that judicial decisions
“[express]…clearly and distinctly the facts and the law on which
[they are] based.” This is because any such minute resolution is
not a judgment on a case, but is a declaration that a Rule 45
petition is insufficient in form and substance.
o A minute resolution is a one-page document that only
contains the dispositive portion. It does not go into the
merits of the case anymore, such as those we read on
SCRA.
164
Hence, it is that petition’s manifest inadequacies that prevent it
from proceeding any further, not the ultimate quality of its
factual and legal assertions.
DISCUSSION
The rule that we need to remember in Latin would be: de minimis
non curat lex – the law does not deal with trifles. If your issue is too
simple, it is possible that it will be ignored by the Supreme Court.
Usually for private ordinary parties, they will only receive a
memorandum decision. Recently, the Supreme Court has been
active, such that there are a lot of petitions raised in the SC, because
it is now composed of younger members led by Justice Leonen. He
never comes into oral arguments in the SC without being prepared.
But if the Supreme Court believes that the issue presented by your
case is “juicy,” or that the issue involved is novel, then it will take
cognizance of it regardless of the formal defects in the petition.
Q: What are the cases were Rule 45 is applicable?
CASES WHERE RULE 45 IS APPLICABLE
1. Appeal from a judgment or final order of the RTC in cases
where only questions of law are raised or are involved.
In other words, RTC direct to the SC. You will not anymore go
through the CA in this situation.
This used to refer to cases decided by the RTC in the exercise of its
appellate jurisdiction. But based on recent jurisprudence, the SC
itself has recognized, in Barcenas versus Sps. Tomas, G.R. No.
150321, March 31, 2005 and Intramuros Admin. versus Offshore
Construction, G.R. No. 196795, March 7, 2018, that a Rule 45
petition may be directly filed before it to assail a judgment
rendered by the RTC in the exercise of the latter’s appellate
jurisdiction.
DISCUSSION
There was a dichotomy before. The misimpression was that if RTC
renders a judgment pursuant to its original jurisdiction over cases –
meaning, it was not appealed but rather filed directly before the
RTC – you can go straight to the SC by way of Rule 45. But if it is a
judgment rendered by the RTC in the exercise of its appellate
jurisdiction (either affirming or reversing the MTC), you cannot use
Rule 45; the possible remedy would be a petition for review under
Rule 42, whether there is a question of fact, or law, or both.
Because a Rule 42 petition can raise questions of fact, questions of
law, or mixed questions of fact or law.
I was confused because technically speaking, this is not correct.
Because if it is a pure question of law, there is nothing in the law
which states that it is limited to the exercise by the RTC of its
original jurisdiction, or that you cannot raise pure questions of law
from a judgment rendered by the RTC in its appellate jurisdiction.
Is that even possible that every time the RTC renders a judgment on
appeal, you will only raise questions of fact? I don’t remember
writing in my notes that this is the case because I can recall the case
of Barcenas vs. Sps. Tomas, where the SC said that whether it is the
original or appellate jurisdiction of the RTC, if there are pure
questions of law, a Rule 45 petition is allowed. And so, I researched
and found a recent case decided by Justice Leonen saying that Rule
45 is allowed if the RTC judgment that you are trying to assail is one
in the exercise of its appellate jurisdiction. That is very clear
already; it is not limited to Rule 42.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
2. Appeal from the judgment, final order, or resolutions of the
CA or the Sandiganbayan where the petition shall raise only
questions of law distinctly set forth (Section 1, Rule 45).
DISCUSSION
The situation is that you filed a case before the RTC and you lost.
And then, you appealed to the CA under Rule 41 and lost again in
the CA.
Q: What further appeal that can be made from the CA in the
exercise of its appellate jurisdiction?
A: It is not the same with the RTC that you have Rule 42. If it is RTC
to CA, and then you want to appeal further, you cannot use Rule
42. The only appeal that you can use would be Rule 45, without
going through filing a Rule 65 petition which is, again,
extraordinary. It tells you that the only thing that you can appeal
from the CA in the exercise of its appellate jurisdiction would be
PURE QUESTIONS OF LAW because Rule 45 is the only available
remedy.
Remember also that the CA has original jurisdiction. You can file
original actions before the CA. If you lost in that original action, like
for annulment of judgment of the RTC under Rule 47, the available
appeal would be Rule 45. But once again, you can only raise
questions of law. You cannot bring factual matters before the SC
because it is not a trier of facts.
3. Appeal from the decision or ruling of the CTA en banc (Section
11, R.A. 9282; Section 1, Rule 45 as amended by A.M. No. 07-
7-12-SC).
4. Appeals from a judgment or final order in a petition for a Writ
of Amparo where the petition may raise questions of fact,
law or both (Section 19 of A.M. No. 07-09-12-SC or the Rule
on the Writ of Amparo).
5. Appeals from a judgment or final order in a petition for a writ
of Habeas Data. The appeal may also raise questions of fact
or law or both (Section 19 of A.M. No. 08-1- 16-SC or the Rule
on the Writ of Habeas Data).
6. Appeal from a judgment or final order in a petition for a Writ
of Kalikasan. The appeal may also raise questions of fact or
law or both (Part III, Rule 7, Section 16, A.M. No. 09-6-8-SC or
the Rules of Procedure for Environmental Cases).
Take note that this is exceptional. Generally, in a Rule 45 petition,
it should only be questions of law.
THE PRINCIPLE OF HIERARCHY COURTS DOES NOT APPLY TO A
RULE 45 PETITION.
There is no other court that can entertain a Rule 45 petition – only
the Supreme Court.
The principle of hierarchy of courts does not find any application in
cases where the petition is filed under Rule 45, and not Rule 65
(Villareal versus MWSS, G.R. No. 232202, February 28, 2018). The
Supreme Court is the court that has exclusive appellate jurisdiction
over petitions filed under Rule 45.
THE SUPREME COURT IS NOT A TRIER OF FACTS
As a rule, only questions of law may be raised under a petition for
review under Rule 45 because the Supreme Court is not a trier of
165
facts. The function of the Supreme Court, not being a trier of facts,
is limited to reviewing errors of law committed by the lower courts.
Thus, it accords finality to the factual findings of the trial court,
especially when such findings are affirmed by the appellate court
(PHILIPPINE SAVINGS BANK versus SAKATA, G.R. No. 229450, June
17, 2020).
The SC will not review errors of fact, only errors of law. That is the
reason why you have Rule 45.
EXCEPTIONS (found in Notes)
Factual questions are not the proper subject of an appeal by
certiorari. Nonetheless, the SC has recognized several exceptions to
the rule, including:
a. When the findings are grounded entirely on speculation,
surmises or conjectures;
b. When the inference made is manifestly mistaken, absurd or
impossible;
c. When there is grave abuse of discretion;
d. When the judgment is based on a misapprehension of facts;
e. When the findings of facts are conflicting;
f. When in making its findings, the CA went beyond the issues of
the case, or its findings are contrary to the admissions of both
the appellant and the appellee;
o This means that the CA decided on its own. The SC will
now be compelled to look at factual issues; when the
findings of fact are conflicting, the RTC said “YES” and the
CA said “NO.” Then who is really right between the two?
And so, the SC will have to look at the factual issues in that
case. When the findings are contrary to those of the RTC,
etc.
g. When the findings are contrary to the trial court;
h. When the findings are conclusions without citation of specific
evidence on which they are based;
i. When the facts set forth in the petition, as well as in the
petitioner's main and reply briefs, are not disputed by the
respondent;
j. When the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on
record; and
k. When the CA manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, could
justify a different conclusion (Soliva versus Tanggol, G.R. No.
223429, January 29, 2020).
Although the Supreme Court may, in exceptional cases, delve into
questions of fact, these exceptions must be alleged, substantiated,
and proved by the parties before it may evaluate and review facts
of the case (CHAVEZ vs MARCOS, GR NO. 185484, June 27, 2018). A
party cannot merely claim that his or her case falls under any of the
exceptions. He or she must demonstrate and prove that a review of
the factual findings is necessary (CANCIO vs PERFORMANCE
FOREIGN EXCHANGE CORP., GR No. 182307, June 6, 2018)
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
DISCUSSION
It is not enough that in your Rule 45 petition, you raise primarily
questions of law, but you also raised factual questions. The only
way for you to have that properly included in your Rule 45 petition
is to tell the court which exception is applicable to your claim. Why
should the SC deal with a factual question? What exception are you
using? Not only that, you have to convince the court that the
review of the factual findings is actually necessary. You also have to
convince the court of the correct factual conclusion; you provide
that before the SC.
A party who files a Rule 45 Petition and asserts that his or her case
warrants this Court's review of factual questions bears the burden
of proving two (2) things. First is the basic exceptionality of his or
her case such that this Court must go out of its way to revisit the
evidence. Second is the specific factual conclusion that he or she
wants this Court to adopt in place of that which was made by the
lower tribunals. This dual burden requires a party to not merely
plead or aver. He or she must demonstrate and prove. His or her
evidentiary task persists before this Court precisely because he or
she pleads this Court to sustain different factual conclusions.
(EBUENGA vs SOUTHFIELD AGENCIES, INC. GR No. 208396, March
14, 2018)
Section 2. Time for filing; extension. – The petition shall be filed
within fifteen (15) days from notice of the judgment or final
order or resolution appealed from, or of the denial of the
petitioner’s motion for new trial or reconsideration filed in due
time after notice of the judgment. On motion duly filed and
served, with full payment of the docket and other lawful fees
and the deposit for costs before the expiration of the
reglementary period, the Supreme Court may for justifiable
reasons grant an extension of thirty (30) days only within which
to file the petition. (1a, 5a)
PEDIOD FOR FILING
The petition shall be filed within 15 days from notice of the
judgment or final order or resolution appealed from, or of the
denial of the petitioner’s Motion for New Trial or Reconsideration
filed in due time after notice of the judgment.
EXTENSION OF PERIOD
The SC may for justifiable reasons grant an extension of 30 days
only within which to file the petition if:
1. There is a motion to file this effect duly filed and served;
2. The docket and other lawful fees and the deposit for costs
must have been paid in full; and
3. Both the motion and payment are made before the expiration
of the original reglementary period.
Rule 45, being a mode of appeal, the Neypes doctrine is applicable;
fresh period the moment the MNT or MR is denied – you are
entitled to another 15 days. If there is an extension, it can be up to
30 days – double the original period.
Section 3. Docket and other lawful fees; proof of service of
petition. – Unless he has theretofore done so, the petitioner
shall pay the corresponding docket and other lawful fees to the
clerk of court of the Supreme Court and deposit the amount of
P500.00 for costs at the time of the filing of the petition. Proof
of service of a copy thereof on the lower court concerned and
on the adverse party shall be submitted together with the
petition. (1a)
166
Section 4. Contents of petition. – The petition shall be filed in
eighteen (18) copies, with the original copy intended for the
court being indicated as such by the petitioner, and shall
a) state the full name of the appealing party as the
petitioner and the adverse party as respondent,
without impleading the lower courts or judges thereof
either as petitioners or respondents;
b) indicate the material dates showing when notice of
the judgment or final order or resolution subject
thereof was received, when a motion for new trial or
reconsideration, if any, was filed and when notice of
the denial thereof was received;
c) set forth concisely a statement of the matters
involved, and the reasons or arguments relied on for
the allowance of the petition;
d) be accompanied by a clearly legible duplicate original,
or a certified true copy of the judgment or final order
or resolution certified by the clerk of court of the court
a quo and the requisite number of plain copies
thereof, and such material portions of the record as
would support the petition; and
e) contain a sworn certification against forum shopping
as provided in the last paragraph of section 2, Rule 42.
(2a)
CONTENTS OF THE PETITION
The petition shall:
1. 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;
2. Indicate the material dates showing when notice of the
judgment or final order or resolution subject thereof was
received, when a motion for new trial or reconsideration, if
any, was filed and when notice of the denial thereof was
received;
3. Set forth concisely a statement of the matters involved, and
the reasons or arguments relied on for the allowance of the
petition;
4. Be accompanied by a clearly legible duplicate original, or a
certified true copy of the judgment or final order or resolution
certified by the clerk of court of the court a quo and the
requisite number of plain copies thereof, and such material
portions of the record as would support the petition; and
5. Contain a sworn certification against forum shopping
Note as well that the petition must be verified pursuant to Section
1 and, pursuant to Section 5(a) of the Efficient Use of Paper Rule,
filed as follows.
• One original (properly marked) and four copies, unless the
case is referred to the Court En Banc, in which event, the
parties shall file 10 additional copies. For the En Banc, the
parties need to submit only two sets of annexes, one attached
to the original and an extra copy. For the Division, the parties
need to submit also two sets of annexes, one attached to the
original and an extra copy.
• Parties to cases before the Supreme Court are further required
to submit, simultaneously with their court-bound papers, soft
copies of the same and their annexes (the latter in PDF
Format) either by email to the Court’s email address or by
compact disc (CD).
There are 5 justices sitting in 1 division of the SC. The SC has 3
divisions. You have to file 5 copies, for each justice in the division.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
But when the case is referred En Banc, you add 10 additional copies.
It is only then that you will be required to submit 10 additional
copies.
You are also required to submit a soft copy of your petition and
annexes in PDF format. When you file something to the SC,
although it is OR that is written there, it is better to file the petition
and annexes in BOTH the email address and CD. But CD is not often
used nowadays. [Atty JZE uses flash drive than CD to submit
documents in SC]. Whatever you do in SC, you need to have
contingencies or redundancies to ensure compliance [if one
method fails]. You need to remember that once you become
lawyers.
Section 5. Dismissal or denial of petition. – The failure of the
petitioner to comply with any of the foregoing requirements
regarding the payment of the docket and other lawful fees,
deposit for costs, proof of service of the petition, and the
contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition
on the ground that the appeal is without merit, or is prosecuted
manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration.
DISMISSAL OR DENIAL OF PETITION
Under Section 5, failure of the petitioner to comply with the
requirements under Sections 1 to 4 allows the SC to summarily
dismiss the petition for review on certiorari.
Even if the petition is found compliant, the SC may on its own
initiative deny the petition if it finds that:
1) The petition is patently without merit or prosecuted
manifestly for delays; or
2) The questions raised in the petition are too unsubstantial
to require consideration.
TAKE NOTE: The rule here is the same with Rule 43.
SUBSTANTIAL COMPLAINCE
The failure to attach material portions of the record will not
necessarily cause the outright dismissal of the petition. While Rule
45, Section 4 of the Rules of Court requires that the petition "be
accompanied by such material portions of the record as would
support the petition," this Supreme Court may still give due course
if there is substantial compliance the Rules, pursuant to Rule 45,
Section 7. (CNACIO vs PERFORMANCE FOREIGN EXCHANGE CORP.,
GR No. 182307, June 6, 2018).
Section 6. Review discretionary. – A review is not a matter of
right, but of sound judicial discretion, and will be granted only
when there are special and important reasons therefor. The
following, while neither controlling nor fully measuring the
court’s discretion, indicate the character of the reasons which
will be considered:
a) When the court a quo has decided a question of
substance, not theretofore determined by the
Supreme Court, or has decided it in a way probably not
in accord with law or with the applicable decisions of
the Supreme Court; or
b) When the court a quo has so far departed from the
accepted and usual course of judicial proceedings, or
167
so far sanctioned such departure by a lower court, as
to call for an exercise of the power of supervision. (4a)
TAKE NOTE: Review is discretionary similar to Rule 43.
REVIEW NOT A MATTER OF RIGHT
Every appeal to the SC is not a matter of right but if sound judicial
discretion with the exception of cases where the penalty is death
or reclusion perpetua. In such cases, an appeal is a matter or right,
leaving the reviewing court without any discretion (PEOPLE vs
FLORES, GR No. 170565, January 31, 2006).
DISCUSSION
The only mode of appeal that you can have with the SC, in any other
case is Rule 45, on pure questions of law, as the general rule. But if
the penalty is death, you will not file anything because it is
automatically reviewed by the SC.
What about reclusion perpetua and life imprisonment? The mode
of appeal is ordinary appeal, notice of appeal.
In all other cases, review will be granted only for special and
important reasons such as:
1. When the court below has decided a question of substance
not yet determined by the SC;
2. When the court below decided a matter of substance in a way
that is not accord with law or with the appliable decisions of
the SC; and
3. When the court below has departed from the accepted and
usual course of judicial proceedings or so far sanctioned such
departure by a lower court, as to call for the exercise of the
power of supervision of the SC.
Section 7. Pleadings and documents that may be required;
sanctions. – For purposes of determining whether the petition
should be dismissed or denied pursuant to section 5 of this Rule,
or where the petition is given due course under section 8 hereof,
the Supreme Court may require or allow the filing 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 therefor. (n)
Section 8. Due course; elevation of records. – If the petition is
given due course, the Supreme Court may require the elevation
of the complete record of the case or specified parts thereof
within fifteen (15) days from notice. (2a)
Section 9. Rule applicable to both civil and criminal cases. – The
mode of appeal prescribed in this Rule shall be applicable to
both civil and criminal cases, except in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment.
 CIVIL PROCEDURE 168
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

Q: How do we distinguish Appeal in general with Certiorari under
Rule 65? Because that is one thing that you need to remember.
CERTIORARI UNDER RULE 65
Proper to correct errors of
jurisdiction committed by
lower courts, grave abuse of
discretion which is
tantamount to lack of
jurisdiction.
Certiorari invokes original
jurisdiction of the court.
Within 60 days from notice of
judgment, order or resolution.
An original and independent
action.
Impleads the tribunal, court,
board or officer.
BAR QUESTION IN 2006
Explain each mode of certiorari:
APPEAL IN GENERAL
Proper where error is not one
of jurisdiction but an error of
law or fact which is a mistake
of judgment.
(So regardless if error of law or
fact, it would still be mistake of
judgment, so the proper
remedy there would be
appeal.)
Appeal when filed invokes the
appellate jurisdiction of the
court.
Filed within period of appeal.
(Which is normally 15 days)
Continuation of the original
case.
Parties to an appeal are the
original parties of the case.
DISTINCTIONS BETWEEN RULE 45 AND RULE 65 CERTIORARI
I think you will appreciate this more if you are already in Provisional
Remedies and Special Civil Actions. So let us just go over a few of
them.
Certiorari under Rule 45 is a mode of appeal, while certiorari under
Rule 65 is a special civil action that is an original action and not a
mode of appeal. While both Rule 45 and 65 are petitions for
certiorari, the former is a petition for review while the latter is an
original special civil action for certiorari.
Certiorari under Rule 45 is but a continuation of the appellate
process over the original case. Certiorari under Rule 65 is not a part
of the appellate process but an independent action.
Because it is a mode of appeal, certiorari under Rule 45 seeks to
review final judgments or final orders while certiorari under Rule
65 may be directed against an interlocutory order or matters from
which no appeal may be taken.
Certiorari under Rule 45 raises questions of law, while certiorari
under Rule 65 raises questions of jurisdiction because a tribunal,
board or officer exercising judicial or quasi-judicial functions has
acted without jurisdiction or in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction.

1. As a mode of appeal from the Regional Trial Court or
the Court of Appeals to the Supreme Court.
2. As a special civil action from the Regional Trial Court
or the Court of Appeals to the Supreme Court.
3. As a mode of review of the decisions of the National
Labor Relations Commission and the Constitutional
Commission.
A: Recall certiorari, mode of appeal from the RTC or the CA to the
Supreme Court, of course it can be Rule 45 or Rule 65.
Certiorari as a Special Civil Action is governed by Rule 65 of the
Rules of Court when an aggrieved party may file a verified petition
against a decision, final order or resolution of a tribunal, body or
board that has acted without or in excess of its jurisdiction or grave
abuse of discretion amounting to lack or excess of jurisdiction,
when there is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law.
The mode of review of the decision of the NLRC is via a special civil
action for certiorari under Rule 65, but pursuant to the hierarchy of
courts enunciated in the case of St. Martin’s Funeral Homes v. NLRC
(G.R. No. 130866, September 16, 1998), the same should be filed
with the CA.
The mode of review of the decision of the COMELEC and the
Commission on Audit, as provided under Rule 64 of the Rules of
Court, is a special civil action for certiorari under Rule 65. Note that
it is a Rule 64 petition in relation to Rule 65.
An appeal by certiorari under Rule 45 shall be filed within 15 days
form notice of judgment or final order appealed from while a
petition for certiorari under Rule 54 shall be filed not later than 60
days from notice of judgment, etc. sought to be assailed and in case
a motion for reconsideration or new trial is timely filed, whether
such motion is required or not, the 60-day period shall be counted
from notice of denial of said motion.
In effect, it would seem that there is this fresh period rule. Why?
Because when you filed a motion for reconsideration or new trial
against the judgment of a lower court or tribunal, and then you
intend to file a petition under Rule 65 a special civil action for
certiorari, the period is reset because the 60-day period shall be
counted from “notice of denial of the said motion”
Unlike before that you would still count the remaining period, and
it is only on that remaining period where you can file your answer
or motion for bill of particulars. So, it is still considered a fresh
period without being under the Neypes v. CA, because it is counted
from notice of denial of your motion for reconsideration or new
trial.
Certiorari as a Special Civil Action is filed with the RTC, CA or SC,
whereas certiorari as a mode of appeal is filed with the Supreme
Court only.
Certiorari under Rule 45 does not require a prior motion for
reconsideration while certiorari under Rule 65 requires as a general
rule, a prior motion for reconsideration because a motion for
reconsideration is a “plain, speedy and adequate remedy in the
course of law.”

Decisions of the Civil Service Commission, however, are reviewable
by petition for review filed with the CA under Rule 43 of the Rules
of Court. Unless there is grave abuse of discretion amounting to
lack or excess of jurisdiction where you can file a Rule 65 certiorari.
Certiorari under Rule 45 stays the judgment appealed from while
certiorari under Rule 65 does not stay the judgment or order
subject of the petition unless enjoined or restrained.
*These distinctions are also provided in Atty. JZE’s separate handouts.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Q: What is the significance of the distinctions? Because it is a
possibility that you will apply the wrong remedy.
A: As a rule, a party cannot file a petition both under Rules 45 and
65 of the Rules of Court because said procedural rules pertain to
different remedies and have distinct applications. The remedy of
appeal under Rule 45 and an original action for certiorari under Rule
65 are mutually exclusive and not alternative or cumulative. Thus,
a party should not join both petitions in one pleading. When a party
adopts an improper remedy, his petition may be dismissed
outright.
So, there is a possibility that we apply the wrong remedy because
they have the same names.
However, take note:
International Corporate Bank, Inc. v. Court of Appeals
G.R. No. 129910 | September 05, 2006
The Supreme Court may set aside technicality for justifiable
reasons as when the petition before the court is clearly
meritorious and filed on time both under Rules 45 and 65. In
accordance with the liberal spirit which pervades the Rules of
Court and in the interest of justice, the Court may treat the
petition as having been filed under Rule 45.
Sonic Steel Industries v. Court of Appeals
G.R. No. 165976 | July 29, 2010
Certiorari under Rule 65 is proper only if there is no appeal or
any plain, speedy and adequate remedy in the ordinary course
of law. For a writ of certiorari to issue, a petitioner must not only
prove that the tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of
jurisdiction but must also show that he has no plain, speedy and
adequate remedy in the ordinary course of law.
DISCUSSION
In this case, Rule 65 must be exceptional. In other words, it must be
a remedy of last resort.
169
RULES 44 – 56 (Except Rule 45)
PROCEDURE BEFORE THE COURT OF APPEALS AND THE
SUPREME COURT
*From the lectures of Atty. Jess Zachael Espejo
REMAINING RULES
Purcon v. MRM Philippines, Inc.
G.R. No. 182718 | September 26, 2008
The procedure in the CA from Rules 44 to 55 (with the exception
of Rule 45 which pertains to the Supreme Court) lays down the
general procedure to be followed before the said Court and
identifies the remedies available before it, such as annulment of
judgments or final orders or resolutions under Rule 47, motion
for reconsideration under Rule 52, and new trial under Rule 53.
Rule 56 on the other hand, is the rule on the general procedure
before the Supreme Court.
So, with Rule 44 – 55, majority of what we need to discuss next
would the procedure before the Court of Appeals
RULE 44
ORDINARY APPEALED CASES
Take note that this would apply to ordinary appealed cases up to
the Court of Appeals. So, what is that talking about? That talks
about Rule 41, RTC to CA by ordinary appeal.
SECTION 1. Title of cases. - In all cases appealed to the Court of
Appeals under Rule 41, the title of the case shall remain as it was
in the court of origin, but the party appealing the case shall be
further referred to as the appellant and the adverse party as the
appellee
DISCUSSION
Take note that the title of the case will still be the same. We have
already discussed this, the party appealing the case shall be further
referred to as the appellant and the adverse party as the appellee.
SECTION 2. Counsel and guardians. — The counsel and
guardians ad litem of the parties in the court of origin shall be
respectively considered as their counsel and guardians ad litem
in the Court of Appeals. When others appear or are appointed,
notice thereof shall be served immediately on the adverse party
and filed with the court.
DISCUSSION
Nothing much here, just read the codal provision, but what I want
you to remember here is that unless there was an actual change of
counsel or guardian ad litem, if any, since it is rare to have guardian
ad litem, the CA will consider the counsel and guardians in the case
before the court of origin, the lower court, to continue in their
respective capacities on appeal.
So, those who were the guardians ad litem in the RTC, they will still
be the same guardians in the CA. those who were the counsels in
the RTC, they will still be the same lawyer in the CA.
Q: What if you are the lawyer and you feel like not continuing the
case, but the adverse party appealed to the CA? The general rule
is that the CA will still presume that you are still the counsel during
appeal. So, what do you do?
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
A: You file a motion or notice of withdrawal as counsel, otherwise,
the CA will still send you orders, and if you don’t comply, even if
you no longer participate in that case, the CA can still go after you.
Take note that a new counsel must formally enter his appearance
by filing and serving a notice to this effect before the CA, in case a
change of counsel has occurred.
SECTION 3. Order of transmittal of record. — If the original
record or the record on appeal is not transmitted to the Court
of Appeals within thirty (30) days after the perfection of the
appeal, either party may file a motion with the trial court, with
notice to the other, for the transmittal of such record or record
on appeal.
DISCUSSION
Q: The question is, where is the order? Who will order? Does the
Court of Appeals order something here?
A: No. In fact, where do you file a motion? With the Trial Court, not
with the Court of Appeals.
So, if there is anybody who will order the transmittal of the record
or record on appeal, it will actually be the Trial Court. Because
nothing in the provision states that it is the CA who orders it. So, it
is a misnomer, it is mistitled. Because the CA does not actually order
the transmittal of the record. In fact, you file the motion before the
RTC.
Take note that in Section 3, there is already perfection of the appeal
but the RTC has yet to transmit the original record or record on
appeal. In other words, the RTC still has residual jurisdiction.
Remember that the RTC completely loses jurisdiction over the case,
loses any power to act, upon transmittal of the records. In the
meantime, it has residual jurisdiction.
REVIEW:
Residual Powers of RTC
It may:
1. permit appeals of indigent litigants;
2. order the preservation of the rights of the parties; or
3. order execution pending appeal.
Q: What else can the RTC do?
A: It can act on a motion to transmit the records to the Court of
Appeals.
This is so because the motion is filed before it. So, it has the power
to act upon the motion to transmit, not the Court of Appeals, if you
follow the language of the law. It is the RTC that issues the order.
So, this provision (Sec. 3, Rule 44) must have been mistitled.
Section 4. Docketing of case. — Upon receiving the original
record or the record on appeal and the accompanying
documents and exhibits transmitted by the lower court, as well
as the proof of payment of the docket and other lawful fees, the
clerk of court of the Court of Appeals shall docket the case and
notify the parties thereof.
Within ten (10) days from receipt of said notice, the appellant,
in appeals by record on appeal, shall file with the clerk of court
seven (7) clearly legible copies of the approved record on
170
appeal, together with the proof of service of two (2) copies
thereof upon the appellee.
Any unauthorized alteration, omission or addition in the
approved record on appeal shall be a ground for dismissal of the
appeal.
There is nothing much in Section 4. Just read the codal provision.
Just take note of the following:
1. The last paragraph of Sec. 4 - “Any unauthorized
alteration, omission or addition in the approved record on
appeal shall be a ground for dismissal of the appeal.”
2. The requirement that YOU HAVE TO PAY WHEN YOU
APPEAL.
The rule is like “PAY NOW, LITIGATE LATER.”
DUTIES OF THE COURT OF APPEALS CLERK OF COURT
Upon receipt of the original record/receipt on appeal, the
documents and exhibits from the RTC and proof of payment of fees,
the CA COC shall:
1. Docket the case; and
2. Notify appellant and appellee that the case has been
docketed.
DUTIES OF THE APPELLANT
Within 10 days from receipt of said notice, the appellant is required
to file with the CA COC the following:
1. SEVEN (7) CLEARLY LEGIBLE COPIES of the approved
record on appeal.
2. TWO (2) COPIES OF PROOF OF SERVICE upon the
appellee.
GROUNDS FOR DISMISSAL
The appeal will be dismissed if there are unauthorized alterations,
omissions, or additions in the approved record on appeal.
DISCUSSION
Take note that Sections 5 and 6 talk about the need for complete
records. We are not talking here of record of appeal. For record on
appeal, if the records are lacking, you will just be asked to complete
it.
Generally, what we are talking here are the records to be
transmitted.
If the record of the docketed case is incomplete, the CA COC shall
inform the court of such fact and recommend measures necessary
to complete the record.
It is the duty of the CA to take appropriate action towards the
completion of the record within the shortest possible time. Thus,
the CA may order the appellant to take the necessary steps for the
completion of the record.
The CA may order the appellant to complete the record and hold
the appellant responsible if the records are incomplete. Take note
that the failure of the appellant to do so, within the time limit set
by the CA, is a ground for dismissal of the appeal pursuant to Sec. 1
(g), Rule 50, which we will go to later on. But that is one of the
sanctions.
 CIVIL PROCEDURE 171
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

In Sec. 6, however, take note that the CA may dispense with the Seven (7) copies of
need for a complete record if the completion thereof could not be legibly
accomplished within a sufficient period due to insuperable or typewritten,
extremely difficult causes. 45 DAYS from mimeographed or
APPELLEE’S BRIEF receipt of printed briefs.
Like nowadays, the courts are not functioning 100%. Our post appellant’s brief.
offices, are they functioning 100%? We do not know. There are lots Two (2) copies of
of uncertainties. It becomes extremely difficult to complete the proof of service
records on appeal before the Court of Appeals. In such cases, the upon the appellee.
CA may dispense the need for complete record. In other words,
whatever record is available in the Court of Appeals, that will be the 20 DAYS from
APPELLANT’S REPLY
basis of CA in deciding. receipt of the
BRIEF
appellee’s brief.
In such a case, the CA, on its own motion or on motion of any of the
parties, may declare that the record and its accompanying
transcripts and exhibits so far available are sufficient to decide the Q: What is a brief?
issues raised in the appeal, and shall issue an order explaining the A: The word brief comes from the Latin word “BREVIS” and the
reasons for such declarations. French word “BREFIE”, and literally means a short or condensed
statement. Its purpose is to present to the court in concise form the
BRIEFS points and questions in controversy, and by fair argument on the
facts and law of the case, to assist the court to arrive at a just and
fair conclusion. It should be prepared as to minimize the labor of
Section 7. Appellant’s brief. – It shall be the duty of the
the court in the examination of the record upon which the appeal
appellant to file with the court, within forty-five (45) days from
is heard. (ESTIVA VS. CAWIT, 59 Phil. 67; CASILAN VS. CHAVEZ, L-
receipt of the notice of the clerk that all the evidence, oral and
17334, Feb. 28, 1962).
documentary, are attached to the record, seven (7) copies of his
legibly typewritten, mimeographed or printed brief, with proof
DISCUSSION
of service of two (2) copies thereof upon the appellee. (10a, R46)
In other words, it is like making a digest. The Court would already
know your case without going through the nitty gritty of the brief
Section 8. Appellee’s brief. – Within forty-five (45) days from
you filed.
receipt of the appellant’s brief, the appellee shall file with the
court seven (7) copies of his legibly typewritten, mimeographed
The number of copies required, again we have to reckon with the
or printed brief, with proof of service of two (2) copies thereof
Efficient Use of Paper Rule. So, one (1) original properly marked and
upon the appellant. (11a, R46)
two (2) copies with their annexes.

Section 9. Appellant’s reply brief. – Within twenty (20) days
from receipt of the appellee’s brief, the appellant may file a
reply brief answering points in the appellee’s brief not covered
in his main brief. (12, R46)
DISCUSSION
We have the Appellant’s brief, Appellee’s brief, as well as
Appellant’s Reply Brief.
MEMORANDA IN LIEU OF BRIEFS
Section 10. Time of filing memoranda in special cases. - In
certiorari, prohibition, mandamus, quo warranto and habeas
corpus cases, the parties shall file in lieu of briefs, their
respective memoranda within a non-extendible period of thirty
(30) days from receipt of the notice issued by the clerk that all
the evidence, oral, and documentary, is already attached to the
record. (13a, R46)

When an appellant file his brief, that is where the substance of his The failure of the appellant to file his memorandum within the
case is stated. The same thing with appellee’s brief. Take note that period therefor may be a ground for dismissal of the appeal.
appellant may also file a Reply brief. Take note of the number of
days within which you can file the briefs. What is the difference of memoranda from brief?

REQUIREMENTS DISTINCTION OF BRIEFS AND MEMORANDA

(to comply with RULE 44
TYPE OF BRIEF PERIOD
the Efficient Paper BRIEFS MEMORANDA
Rule) Filed in appealed cases under Filed in lieu of briefs in
45 DAYS from Seven (7) copies of Rule 41 certiorari, prohibition,
receipt of the legibly mandamus, quo warranto,
notice of the clerk typewritten, and habeas corpus cases
that all the mimeographed or Period for filing by appellant is Period for simultaneous filing
APPELLANT’S BRIEF evidence (oral printed briefs. 45 days from the notice given is 30 days for both parties
and by COC. Period for appellee 45 [from] the notice given by COC
documentary) are Two (2) copies of days from receipt of
attached to the proof of service appellant’s brief. The
record. upon the appellee. appellant’s reply brief is filed
within 20 days from receipt of
the appellee’s brief.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
By way of exception, the The 30-day period is not
period to file is not extendible, extendible.
except for good and sufficient
cause, and only if the motion
is filed before the expiration of
the time sought to be
extended.
Failure of the appellant to serve and file brief or memorandum
may lead to dismissal of the appeal.
Here's an interesting case:
DISCUSSION
When you talk about briefs filed in appealed cases under Rule 41,
meaning, these are ordinary appealed cases but memoranda would
be pertinent in petitions for certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases.
Certiorari, prohibition and mandamus, that's [Rule] 65. Quo
warranto is [Rule] 66. Habeas corpus is a special proceeding.
Period for appellant is 45 days.
Period for appellee is 45 days.
Appellant's reply brief: 20 days.
But in the case of memoranda, [it's] simultaneous. We need not
wait for each other.
Remember, that for the filing of briefs, when you talk about the
appellee, to file his brief, he should receive the appellant's brief first
before he files the appellee's brief. It is consecutive: appellant first,
then appellee next and then appellant's reply brief last. But, in the
case of memoranda, it is simultaneous.
There is no unfair disadvantage or advantage in these situations.
Like, you are allowed to complain that you must have the last say
because you are the one given the last chance to file.
I remember telling you at the beginning, that when you become
lawyers, never accept not having the last word on anything that is
within the bounds allowed by the Rules of Court. You are not
allowed to file just anything. It must be within the bounds of the
law. There are those that cannot accept that they are not the ones
with the last say.
But here, when the filing is simultaneous, there is no one with the
advantage in that situation, of having the last say. However, there
is a way to skirt that. 30 days. You will wait that the adverse party
will file, because it's simultaneous. Then, upon receipt, that's the
time when you will file so you have a last-minute opportunity to
polish up a little bit your memorandum so that you can address
whatever is stated by the adverse party in its own memorandum.
However, most lawyers file at the last minute. Lawyers who submit
with five (5) remaining days are very rare because lawyers by
nature are busy individuals.
Filing of brief, general rule, not extendible. Except for good and
sufficient cause, and only if the motion is filed before the expiration
of the time sought to be extended. Memorandum, on the other
hand, it is not extendible. It's a simultaneous filing. The reason for
that would be so that you cannot take unfair advantage of filing last.
Section 11. Several appellants or appellees or several counsel
for each party. - Where there are several appellants or
appellees, each counsel representing one or more but not all of
them shall be served with only one copy of the briefs. When
172
several counsel represent one appellant or appellee, copies of
the brief may be served upon any of them. (14a, R46)
Section 12. Extension of time for filing briefs. - Extension of time
for the filing of briefs will not be allowed, except for good
and sufficient cause, and only if the motion is filed before the
expiration of the time sought to be extended. (15, R46)
MOSKOWSKY v. CA
G.R. No. 104222 ½ March 3, 1994
FACTS: The CA granted the appellant a period of 90 days
counted from August 3, 1991 within which to file his brief. (It
should only be 45 days, right? But the CA was very liberal. It gave
a total of 90 days.) Said ninety-day period would end on
November 1, 1991, a regular holiday. Then President Aquino
declared November 2, 1991 as a special holiday. The next day,
November 3, 1991 turned out to be a Sunday. The next business
day was, therefore, November 4, 1991 - a Monday. (So, he had
extra 3 days, a total of 93 days.) Instead of filing a brief,
appellant - this time, through new counsel, fileD a motion for a
twenty-day extension to file a brief on November 4, 1991. The
appellee opposed.
HELD: Where the day, or the last day, for doing any act required
or permitted by law falls on a regular holiday or special day, the
act may be done on the next succeeding business day. The
motion was, therefore, filed on time, i.e., the motion for the
extension sought was filed before the expiration of the time
sought to be extended.
The next question is: When should the extended period
requested for commence to run?
(He filed for the 20-day extension on November 4. Should you
start to count the 20-day period on that day?)
Since private respondents specifically manifested that they "will
need another extension of twenty (20) days from today within
which to file appellants' brief" and the "today" (November 4,
1991) was the date of the filing of the motion, there was then
authority for private respondents to fix the commencement (of
the extended period requested) from November 4, 1991.
So, it was granted by the Court of Appeals and which the
Supreme Court upheld. So how many days was that already? 90
plus 3 days plus 20 days. So, what the Supreme Court here is
saying is that he was supposed to file his brief on November 4,
but he asked for an extension, so the extension will be counted
from the time that he asked the same. So, it is November 24.
Take further note that in this case, the appellant asked for
another five days to file the brief when the 20-day extension
expired.
The same goes, according to the Supreme Court, for the motion
for another five days to file the brief. The 20th day from
November 4, 1991 fell on a Sunday and the brief was therefore
to be filed on November 25. But, instead of the brief, the private
respondents filed a motion for extension of time to file brief
wherein they manifested that they would need 5 days from the
filing of the said motion - the 25th of November 1991, to file
said brief.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Take note that five days from November 25 is November 30,
which is Bonifacio Day, which is another regular holiday. The
next day, December 1, 1991, was a Sunday. So, the brief had to
be filed the next day, December 2, 1991, it being the first
business day which was neither a regular holiday or a special
day.
You know what happened? They were still not able to file on
time.
The private respondents then filed a "Motion to Admit a
Belated Appellant's Brief" on December 3 – one day after due
date. The theme of private respondents' new counsel in the
motions for extension of time to file brief was that he had just
been hired as counsel for which reason he needed time to go
over the records of the case and check his facts very well before
submitting the private respondents' brief - which included
submitting the same without any errors in its typing.
So, the Supreme Court had been very lenient on the matter which
is weird. This is one of those very rare instances that the time
period that was given was very lengthy because of coincidences
in respect to holidays and Sundays.
Since the Rules are intended to promote, not to defeat,
substantial justice and, therefore, they should not be applied in
a very rigid and technical sense, we therefore respect the
appellate court's assessment of the good faith it perceived on
the part of private respondent's new counsel when it granted
the motion to admit appellants' brief.
A.M. No. 00-2-14-SC (February 29, 2000)
Take note of this, however. We have this A.M. No. 00-2-14-SC
(February 29, 2000), which states:
“XXX Whereas, the question has been raised if the period is
extended ipso jure to the next working day immediately following
where the last day of the period is a Saturday, Sunday or legal
holiday so that when a motion for extension of time is filed, the
period of extension is to be reckoned from the next working day
and not from the original expiration of the period;”
The question is, supposed to be the period expires on a holiday, so
you have the next working day within which to make your
compliance, if you ask for an extension, where will that be counted
from: from the original period that fell on a Saturday, Sunday or
holiday, or from the extended period? So, the Supreme Court here
said:
“NOW THEREFORE, the Court Resolves, for the guidance of the
Bench and the Bar, to declare that Section 1, Rule 22 speaks only
of "the last day of the period" so that when a party seeks an
extension and the same is granted, the due date ceases to be the
last day and hence, the provision no longer applies. Any extension
of time to file the required pleading should therefore be counted
from the expiration of the period regardless of the fact that said
due date is a Saturday, Sunday or legal holiday.”
What does this mean? Do not include the extension of time in
beginning to count your extended period. Whether it is a Saturday,
Sunday, or legal holiday, that is when you begin to count the
extension that you are asking for.
173
EXAMPLE:
The defendant lost a case before the MTC. He appealed to the RTC.
He received the judgment of the RTC against him on Thursday,
March 25, 2021.
Q: What is his remedy and period to file?
A: Petition for review under Rule 42. He has 15 days from notice of
judgment or until April 9, 2021, which is a Friday, to file it.
However, take note that the 15th day, April 9, 2921, is Araw ng
Kagitingan, a legal holiday falling on a Friday. So, the defendant has
until the next working day, Monday or April 12, 2021, within which
to file his petition.
Q: Can he ask for an extension of the period?
A: YES. This is specifically allowed under Rule 42, Section 1. The
Court of Appeals may grant an additional period of 15 days only
within which to file the petition for review.
Q: If the defendant asked for an extension which the CA granted,
what is his new period for filing?
A: He has until April 24, 2021 or 15 days from April 9 within which
to file his petition for review, not April 27 or 15 days from April 12.
Under A.M. No. 00-2-14-SC and BERNARDO vs. PEOPLE, G.R. No.
166980, April 3, 2007, the court cannot reckon the commencement
of the extension from a date later than the expiration of such
period, not even if the expiry date is a Saturday, Sunday, or a legal
holiday.
Read the codal provisions for Section 13 and Section 14.
CONTENTS OF APPELLANT'S BRIEF
Section 13. Contents of appellant's brief. — The appellant's
brief shall contain, in the order herein indicated, the following:
(a) A subject index of the matter in the brief with a 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) An assignment of errors intended to be urged, which
errors shall be separately, distinctly and concisely
stated without repetition and numbered
consecutively;
(c) Under the heading "Statement of the Case," a clear
and concise statement of the nature of the action, a
summary of the proceedings, the appealed rulings
and orders of the court, the nature of the judgment
and any other matters necessary to an understanding
of the nature of the controversy with page references
to the record;
(d) Under the heading "Statement of Facts," a clear and
concise statement in a narrative form of the facts
admitted by both parties and of those in controversy,
together with the substance of the proof relating
thereto in sufficient detail to make it clearly
intelligible, with page references to the record;
(e) A clear and concise statement of the issues of fact or
law to be submitted, to the court for its judgment;
(f) Under the heading "Argument," the appellant's
arguments on each assignment of error with page
references to the record. The authorities relied upon
shall be cited by the page of the report at which the
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
case begins and the page of the report on which the
citation is found;
(g) Under the heading "Relief," a specification of the
order or judgment which the appellant seeks; and
(h) In cases not brought up by record on appeal, the
appellant's brief shall contain, as an appendix, a copy
of the judgment or final order appealed from. (16a,
R46)
CONTENTS OF APPELLEE'S BRIEF
Section 14. Contents of appellee's brief. — The appellee's brief
shall contain, in the order herein indicated the following:
(a) A subject index of the matter in the brief with a digest
of the arguments and page references, and a table of
cases 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
insufficiencies 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 the page of the
report at which the case begins and the page of the
report on which the citation is found. (17a, R46)
DISCUSSION
Take note that only the appellant's brief is required to contain an
assignment of errors. For obvious reasons, the appellee, because
he is the prevailing party, is interested in sustaining the judgment
appealed from. He is not required to make assignment of errors,
except when his purpose is to seek affirmation of the judgment on
other grounds or reasons not stated in the decision (SAENZ vs.
MITCHELL, 60 Phil. 69).
PRINCIPLES TO REMEMBER:
1. The appellee may state assignment of errors, without himself
appealing, if doing so would support, not modify, the decision
on other grounds not stated.
But what happens if the appellee is not satisfied? For example, the
court awarded him only 1 Million, when he wants 10 Million? Can
he cite that as his Assignment of Errors? Or does he have to appeal
himself? (No. 2)
2. If the appellee himself seeks modification of the judgment
because he thinks that he is entitled to more, it is not enough
for him to make an assignment of errors in his appellee's brief.
In such a case, the appellee must himself appeal.
There is no prohibition as to when both the plaintiff and the
defendant will appeal. That is allowed. For example, the amount is
174
not enough, then you may appeal so that you may raise that error
before the Court of Appeals.
Remember, even the prevailing party may appeal.
QUESTIONS THAT MAY BE RAISED ON APPEAL
Section 15. Questions that may be raised on appeal. - Whether
or not the appellant has filed a motion for new trial in the court
below he may include in his assignment of errors any question
of law or fact which is within the issues framed by the parties
(18, R46)
DISCUSSION
We have already encountered this when we were discussing the
basics on appeal. But take due notice of the following cases about
the rule that you are not allowed to raise questions or that it cannot
be decided on appeal something that was not within the issues
framed by the parties or raised in the lower courts. That is not
allowed, which is why there is a need for Assignment of Errors so as
to guide the appellate court as to the issues to determine whether
the judgment is valid or not for some reason or another. There are
instances where the appellate court may go beyond the assignment
of errors or beyond the issues that are raised by the parties before
the trial court.
PUNONGBAYAN-VISITACION vs. PEOPLE
G.R. No. 194214 | January 10, 2018
HELD: There are exceptions to the aforecited rule that no
question may be raised for the first time on appeal. Though not
raised below, the issue of lack of jurisdiction over the subject
matter may be considered by the reviewing court, as it may be
raised at any stage. The said court may also consider an issue
not properly raised during trial when there is plain error.
Likewise, it may entertain such arguments when there are
jurisprudential developments affecting the issues, or when the
issues raised present a matter of public policy.
Further, the matters raised in the present petition warrant the
relaxation of the rules concerning issues raised for the first time
on appeal especially considering the jurisprudential
developments since the RTC decision and the needs for
substantial justice. In liberally applying the rules in the case at
bar, the Court does not wish to brush aside its importance;
rather, it emphasizes the nature of the said rules as tools to
facilitate the attainment of substantial justice.
RIVERA vs. COURT OF APPEALS
176 SCRA 169 (1989)
FACTS: The spouses Martinez sold their house and lot to Rivera.
They later filed a complaint against Rivera to declare the sale null
and void on the ground that it is a mortgage. (This is a case of
equitable mortgage. It was made to appear a sale, but is actually
a mortgage and is intended to secure the fulfillment of a
principal obligation which is usually but not necessarily a loan.
Not all mortgages secure loan only. An equitable mortgage is
entered into in order to skirt the legal prohibition against pactum
commissorium.). The court dismissed the complaint and upheld
the sale. Meaning, the sale is valid and it is not a mortgage.
On appeal before the CA, the spouses prayed that they be
allowed to redeem the property. The CA reversed the trial court
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

and allowed the redemption. Rivera contends that the spouses
changed the theory of their case from pleading annulment to
praying for redemption.
ISSUE: Was there a change of theory? NO.
HELD: Prescinding from the allegations and from the prayer all
clearly set out in the complaint, it is fair to conclude that the real
purpose in asking for the nullity of the contract of sale is to
enable the Martinez spouses to recover or redeem the property
they deeded in favor of Rivera. It would be absurd to pray for
the nullity of tan agreement and stop there. There would be a
vacuum and the law, like nature, abhors a vacuum.
In the CA, they persisted in their claim to entitlement of the right
to recover, redeem, or repurchase. This agreement cannot be
construed as change of theory; it is persistence, plain and
simple. It does not leave any interstice in the entire theory of the
case. Consistency in the position of the private respondents runs
throughout the presentation of their claim.
NOTE: Read the provision on your own in case there is no discussion
by Atty JZE.
RULE 46
ORIGINAL CASES
*From the lectures of Atty. Jess Zachael Espejo
Section 1. Title of cases. - In all cases originally filed in the Court
of Appeals, the party instituting the action shall be called the
petitioner and the opposing party the respondent. (1a)
DISCUSSION
These are cases originally filed in the Court of Appeals. Who files
the petition? The petitioner and the opponent is the respondent.
This is a stark contrast to Rule 40 and Rule 41 even Rule 42 where
the title of the case remains the same.
Here it’s going to be plaintiff-appellant and defendant-appellee or
plaintiff-appellee and defendant-appellant.
Section 2. To what actions applicable. This Rule shall apply to
original actions for certiorari, prohibition, mandamus and quo
warranto. Except as otherwise provided, the actions for
annulment of judgment shall be governed by Rule 47, for
certiorari, prohibition and mandamus by Rule 65, and for quo
warranto by Rule 66. (n)

DISCUSSION
Section 2 talks about what actions are covered. In the beginning of
our discussions, we noted that certiorari, prohibition, mandamus
and quo-warranto are special civil actions and as such, they are
actually original actions filed before the court that has jurisdiction
over it.

Take note that the second paragraph also mentions one more
original action there and that is the action for annulment of
judgment that we covered under Rule 47 (see separate notes).

Annulment of judgment can be an MTC which can be annulled by

the RTC but what Rule 46 is talking about is actually a judgment or
final order of the RTC being annulled by the Court of Appeals on the
ground of extrinsic fraud and lack of jurisdiction and of course, you
have certiorari, prohibition and mandamus covered by Rule 65 and
quo-warranto covered by Rule 66.

RULE 44
Ordinary Appeals to the CA
The parties are the appellant
and the appellee.
The rule governs appeals taken
via Rule 41.
The ordinary appeal can only be
filed before the Court of
Appeals.
As the case is a continuation of
the action in the court of origin,
there is no further requirement
in by order to obtain
jurisdiction over or the parties.
RULE 46
Original Cases in the CA
The parties are the petitioner
and the respondent.
The rule covers original
actions for certiorari,
prohibition and mandamus
under Rule 65 and quo
warranto under Rule 66.
The petitions can also be filed
with the RTC or Supreme
Court.
The court acquires
jurisdiction gin, over the
person of the respondent by
the service on him of its order
or resolution indicating its
initial action on the petition
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
or by his voluntary
submission to such
jurisdiction.
DISCUSSION
When we talk about Rule 44, that’s ordinary appeals before the
Court of Appeals which means that it governs appeals taken via rule
41 not Rule 40 or 42 because when you talk about Rule 42, that's a
petition for review not an ordinary appeal.
Take note that in Rule 44 talking about Rule 41, the ordinary appeal
can be filed only before the Court of Appeals. There's no question
of judicial hierarchy in that matter because the court that has
exclusive appellate jurisdiction there would be the Court of Appeals
but on Rule 46, the petitions can also be filed with the RTC or the
Supreme Court in addition to the Court of Appeals because they are
given concurrent original jurisdiction over these special civil actions
including quo-warranto under Rule 66. The doctrine of judicial
hierarchy would be applicable in this situation.
Because the case is a continuation of the action in the court of
origin, in ordinary appeal, there's no further requirement in order
to obtain jurisdiction over the parties. If you are the plaintiff for
example, who lost, you decide to appeal therefore, you voluntarily
submit to the jurisdiction of the appellate court but when you talk
about defendant-appellee, he is interested in sustaining the
judgment of the lower court which means that you will have to
voluntarily submit to the jurisdiction of the Court of Appeals in that
situation.
When you talk about Rule 46, the court acquires jurisdiction over
the person of the respondent by the service on him of its order or
resolution indicating its initial action on the petition or by his
voluntary submission to such jurisdiction. Contrast that with an
ordinary civil action, where jurisdiction over the person of the
defending party is actually obtained by service of summons upon
his person, as a general rule, and then also voluntary submission.
But when you talk about original cases filed before the Court of
Appeals through Rule 65, Rule 66, there should be a receipt of the
order or resolution of the court indicating its initial action on the
petition.
CONTENTS AND FILING OF PETITION
Section 3. The petition shall contain:
1. The full names and actual addresses of all petitioners and
respondents;
2. A concise statement of the matters involved, the factual
background of the case, and the grounds relied upon for the
relief prayed for;
3. If filed under Rule 65, the material dates showing when notice
of the judgment or final order or resolution subject thereof was
received, when a motion for new trial or reconsideration, if any,
was filed when notice of the denial thereof was received; and
4. A certification against forum-shopping.
DISCUSSION
Remember, order or resolution doesn’t mean that there is due
course given already – that is different. It simply indicates or tells
the party (order or resolution) that we received the case and then
176
maybe, asks the respondent to comment and again, that's it not
necessarily giving you due course to the petition.
As to the contents, take note that what will govern here is the
Efficient Use of Paper Rule, no need for the 7 copies only one
original properly marked and two copies with their annexes.
If you talk about the Rule 65 petition, it shall include a clearly legible
duplicate original or certified true copy of the judgment order,
solution or ruling subject thereof such material portions of the
record as a referred to therein and other documents relevant or
pertinent therein. It's similar to what we learned previously.
The petition shall contain the usual suspects: the full names and
actual addresses of all the petitioners and respondents, a concise
statement of the matters involved, the factual background of the
case, and the grounds relied upon for the relief prayed for. Take
note, there should be a statement of facts, because you're
supposed to tell the court factual background. Further, a concise
statement of the matters involved - that is your statement of the
case and then your relief, what is it that you're actually asking for.
“3. If filed under Rule 65, the material dates showing when notice
of the judgment or final order or resolution subject thereof was
received, when a motion for new trial or reconsideration, if any,
was filed when notice of the denial thereof was received; and”
Take note, this is not required for Rule 66 because in the Rule 66
you're questioning a position, for example what right do you have
in holding that particular position, similar to what we learned in
Republic vs Sereno, the Chief Justice of the Supreme Court herself
is questioned as to qualification to hold office. What you do in a
quo-warranto petition is question a person's right to entitlement
office. But when you talk about Rule 65, there's something that you
want to declare null and void. You want it to be annulled in a way,
the judgment or final order or resolution on the ground that it was
issued with grave abuse of discretion amounting to lack or excess
jurisdiction.
There should also be a certification against forum shopping, why?
Because you're filing an original case and can actually be filed in
different courts: RTC, CA and SC.
Section 3. xxx the petitioner shall pay the corresponding docket
and other lawful fees to the clerk of court and deposit the
amount of P500.00 for costs at the time of the filing of the
petition.
The failure of the petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of the
petition.
Remember, the judiciary has fiscal autonomy - it belongs to the
judiciary.
Section 4. Jurisdiction over person of respondent, how
acquired. The court shall acquire jurisdiction over the person of
the respondent by the service on him of its order or resolution
indicating its initial action on the petition or by his voluntary
submission to such jurisdiction. (n)
Section 5. Action by the court. The court may dismiss the
petition outright with specific reasons for such dismissal or
require the respondent to file a comment on the same within
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
ten (10) days from notice. Only pleadings required by the court
shall be allowed. All other pleadings and papers, may be filed
only with leave of court. (n)
RECALL: Rule 15, Section 10 which provides that: "A motion for
leave to file a pleading or motion shall be accompanied by the
pleading or motion.”
DISCUSSION
You can’t just file without being ordered by the court to file and if
you want to do it you file a leave of court – you ask permission.
Relate it to Rule 15, Section 10, which provides that a motion for
leave to file a pleading or motion shall be accompanied by the
pleading or motion sought to be admitted. So, if you want to file
something, a written manifestation for example, you file a motion
for leave to admit the attached written manifestation. So, the
principle here is just the same with Rule 15, Section 10.
Section 6. Determination of factual issues. Whenever
necessary to resolve factual issues, the court itself may conduct
hearings thereon or delegate the reception of the evidence on
such issue to any of its members or to an appropriate court,
agency or office. (n)
RECALL: Rule 30, Section 9 which requires the judge to personally
receive evidence but the judge may delegate reception of evidence
to the clerk of court. The principle in Section 6 is similar to that.
DISCUSSION
Court of Appeals is actually allowed to receive evidence or require
the presentation of evidence even in a special civil action.
With that, let’s have a recap:
Q: When may reception of evidence be done not by the court?
a) When reception of evidence is delegated to the clerk of
court:
1. In default hearings;
2. Ex parte hearings; and
3. In any case where the parties agree in writing.
The clerk of court, in such a case must be member of the bar. He
shall have no power to rule on objections to any question or to the
admission of exhibits.
b) When there is trial by commissioner.
RECALL: that, under Rule 32, Section 3, a commissioner may,
depending on the order of reference, be empowered to:
1. Receive and report evidence;
2. Issue subpoenas and subpoenas duces tecum; and
3. Even rule on the admissibility of evidence.
c) When the CA opts to delegate reception original actions filed
before it.
Whenever necessary to resolve factual issues, the CA may conduct
hearings thereon or delegate the reception of the evidence on such
issue to any of its members or to an appropriate court, agency, or
office.
Section 7. Effect of failure to file comment. — When no
comment is filed by any of the respondents, the case may be
decided on the basis of the record, without prejudice to any
177
disciplinary action which the court may take against the
disobedient party. (n)
DISCUSSION
This is an exception to what we learned previously specifically with
respect to ordinary civil actions. Why? Even if the respondent does
not file his comment, there is no assurance that the petitioner will
win. It is not the same with ordinary civil actions. In ordinary civil
actions, if you cannot file an answer, you will be declared in default.
In such a situation, the Court can opt to render judgment according
to what the pleading the plaintiff warrants or receive evidence ex-
parte.
TAKE NOTE that, even if the respondent does not file his comment,
there is no assurance that the petitioner will win. In fact, the
petitioner may still lose because the original cases dealt with by
Rule 46 (i.e certiorari, prohibition, mandamus, quo warranto) are
extraordinary remedies that are granted as a matter of last resort.
(Recall: certiorari, prohibition, and mandamus, when there should
be no plain, speedy, and or any adequate remedy in the ordinary
course of law)
Rule 47
ANNULMENT OF JUDGMENTS OR FINAL ORDERS
AND RESOLUTIONS
*Read the lecture notes.
Take note that Rule 47 petitions are also subject to the Efficient Use
of Paper Rule. This means that if the petition is filed before the CA,
only one original copy (properly marked) and two copies with their
annexes are required to be filed (Section 5[a]).
Rule 48
PRELIMINARY CONFERENCE
Section 1. Preliminary conference. — At any time during the
pendency of a case, the court may call the parties and their
counsel to a preliminary conference.
(a) To consider the possibility of an amicable settlement,
except when the case is not allowed by law to be
compromised;
(b) To define, simplify and clarify the issues for
determination;
(c) To formulate stipulations of facts and admissions of
documentary exhibits, limit the number of witnesses
to be presented in cases falling within the original
jurisdiction of the court, or those within its appellate
jurisdiction where a motion for new trial is granted on
the ground of newly discovered evidence; and
(d) To take up such other matters which may aid the court
in the prompt disposition of the case. (Rule 7, CA
Internal Rules) (n)
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
DISCUSSION
This provision is more or less similar to pre-trial in Rule 18.
Pay particular attention to (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.
Q: What is the purpose?
A: This is to prevent unnecessary proof.
Then why is there a need to prove when in fact it is already
admitted? Or in other words, why is there a need to prove when
there is stipulation between the parties?
Take note of the phrase, “limit the number of witnesses to be
presented". This means that when we talk about proceedings
before the CA, it can conduct a trial for the purpose of reception of
evidence because the CA is a trier of facts. CA is similar to RTC or
MTC but to a lesser degree. The cases in the CA are already filtered.
There is no trial de novo or full-blown trial because it is a collegiate
court.
THE COURT OF APPEALS IS A TRIER OF FACTS
This means that there can be presentation of evidence before the
court, especially in original cases under Rules 65 and 66.
For certiorari and prohibition, the petitioner may be asked to prove
how the lower court or tribunal acted with grave abuse of
discretion.
o It is not enough to allege; it must be proved.
For mandamus, the petitioner may be asked to present evidence of
how the respondent neglected to perform a ministerial duty.
o Ministerial duty can be compelled by mandamus. If the
duty is discretionary, it cannot be compelled by
mandamus.
o Certiorari and prohibition question discretion. But for
mandamus, the duty is ministerial. It is a positive duty
that the law enjoins to be performed by a court, tribunal,
or officer.
For quo warranto, take note that the petitioner must prove that
the respondent is not qualified to hold office. There must be
presentation of evidence. For example, in the case of Sereno, the
SolGen presented the absence of SALNs. It eventually leads to her
ouster but this was still proved by presenting evidence.
For annulment of judgment, Rule 47 Section 6, provides that
should a trial be necessary, the reception of the evidence may be
referred to a member of the court or a judge of RTC. There is
delegation of evidence.
But remember:
GENERAL RULE: There is no more presentation of evidence for
appealed cases. The appeal is decided on the basis of
memoranda.
XPN: But, where a motion for new trial is granted on the ground
of newly discovered evidence, there can be reception of the
newly discovered evidence.
178
DISCUSSION
GR: Again, they can receive evidence even during the appeal
because the CA is equipped to deal with question of facts. But
generally, the appeal will be decided in memoranda or if under Rule
44, the basis is briefs. No more requirement to present evidence.
XPN: For example, X lost in the RTC so he appealed to the CA under
Rule 41. On appeal, he discovered new evidence. He can file a
motion for new trial under Rule 53. In such a case, the CA may
conduct trial to receive the newly discovered evidence.
o This is similar to motion for new trial under the RTC.
Section 2. Record of the conference. — The proceedings at such
conference shall be recorded and, upon the conclusion thereof,
a resolution shall be issued embodying all the actions taken
therein, the stipulations and admissions made and the issues
defined. (n)
Section 3. Binding effect of the results of the conference. —
Subject to such modifications which may be made to prevent
manifest injustice, the resolution in the preceding section shall
control the subsequent proceedings in the case unless, within
five (5) days from notice thereof, any party shall satisfactorily
show valid cause why the same should not be followed. (n)
RULE 49
ORAL ARGUMENT
Section 1. When allowed. — At its own instance or upon motion
of a party, the court may hear the parties in oral argument on
the merits of a case, or on any material incident in connection
therewith. (n)
The oral argument shall be limited to such matters as the court
may specify in its order or resolution. (1a, R48)
The CA like the SC has the power to call for oral arguments.
Section 2. Conduct of oral argument. — Unless authorized by
the court, only one counsel may argue for a party. The duration
allowed for each party, the sequence of the argumentation, and
all other related matters shall be as directed by the court. (n)
Section 3. No hearing or oral argument for motions. — Motions
shall not be set for hearing and, unless the court otherwise
directs, no hearing or oral argument shall be allowed in support
thereof. The adverse party may file objections to the motion
within five (5) days from service, upon the expiration of which
such motion shall be deemed submitted for resolution. (29, R49)
DISCUSSION
If you file a motion before the CA, it does not need the requirement
under the 1997 Rules, which has now been amended, of the setting
of hearing. And unless the court otherwise directs, no hearing or
oral argument shall be allowed in support thereof. In other words,
you just need to file objection. If you do not conform to his motion,
you just need to file a motion thereto.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 50
DISMISSAL OF APPEAL
Section 1. Grounds for dismissal of appeal. — An appeal may
be dismissed by the Court of Appeals, on its own motion or on
that of the appellee, on the following grounds:
(a) Failure of the record on appeal to show on its face that
the appeal was taken within the period fixed by these
Rules;
(b) Failure to file the notice of appeal or the record on
appeal within the period prescribed by these Rules;
(c) Failure of the appellant to pay the docket and other
lawful fees as provided in section 5, Rule 40 and
section 4 of Rule 41; (Bar Matter No. 803, 17 February
1998);
(d) Unauthorized alterations, omissions or additions in
the approved record on appeal as provided in section
4 of Rule 44;
(e) Failure of the appellant to serve and file the required
number of copies of his brief or memorandum within
the time provided by these Rules;
(f) Absence of specific assignment of errors in the
appellant's brief, or of page references to the record
as required in section 13, paragraphs (a), (c), (d) and
(f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for
the correction or completion of the record within the
time limited by the court in its order;
(h) Failure of the appellant to appear at the preliminary
conference under Rule 48 or to comply with orders,
circulars, or directives of the court without justifiable
cause; and
(i) The fact that the order or judgment appealed from is
not appealable. (1a)
DISCUSSION
TAKE NOTE that all of these grounds for dismissal of the appeal
until the letter F have been previously discussed. Because this
provision simply recaps the previous rules. It's just a recap except
for letter G, H, and letter I.
Q: What's letter G? Let's say for example, the record is not
complete, so what will happen there under rule 44?
A: The Clerk of Court will recommend to the Court of Appeals the
steps to be taken in order to complete the record. A negotiation
could also be plausible, wherein upon motion of one party, "okay
let's just decide the case on the basis of the records already on hand
without ordering the completion of the record" or in all probability,
since you are the one who filed an appeal, it's the appellant who
will be ordered by the court to correct the record or to complete
the record.
Q: What if it was not done, what would be the effect?
A: The Court of Appeals could dismiss the appeal that was filed.
179
Q: What about letter H?
A: Failure of the appellant to appear at the preliminary conference
under Rule 48. It is similar to failure to appear during pre-trial.
If you're the plaintiff, then your case may be dismissed because you
did not appear during pre-trial, and/or to comply with orders,
circulars or directives of the court without justifiable cause, it is also
similar to Rule 17, dismissal due to the fault of the plaintiff.
And then letter I, of course the fact that the order or judgement
appealed from is not appealable.
Q: Is there a hack or a shortcut to Section 1?
A: There actually is. Think of all the rules that we have discussed in
relation to appeals. Especially if you are the petitioner or the
appellant. If you violate that, you can expect that it could really be
dismissed.
It's as simple as that. So. follow all the rules if you are the appellant.
Why? Because appeal is not a natural right, it is not a Constitutional
right. So, it could be dismissed.
Section 2. Dismissal of improper appeal to the Court of
Appeals. — An appeal under Rule 41 taken from the Regional
Trial Court to the Court of Appeals raising only questions of law
shall be dismissed, issues purely of law not being reviewable by
said court. Similarly, an appeal by notice of appeal instead of by
petition for review from the appellate judgment of a Regional
Trial Court shall be dismissed. (n)
An appeal erroneously taken to the Court of Appeals shall not
be transferred to the appropriate court but shall be dismissed
outright. (3a)
IMPROPER APPEALS
Appeal under Rule 41 Should be appeal
from RTC to CA on DISMISSED by Certiorari to the
pure questions of law SC under Rule 45
Appeal under Rule 41 Should be Petition
from RTC’s judgment DISMISSED for Review to the
on appeal to CA CA under Rule 42
DISCUSSION
FIRST, appeal under Rule 41 from the RTC to the CA on pure
questions of law, can it be dismissed? It can be dismissed because
the appeal was improper. Why was the appeal improper? Because
it should be an appeal by certiorari to the Supreme Court under
Rule 45 on pure questions of law.
So, filing an appeal before the Court of Appeals on pure questions
of law is not allowed. Pure legal questions should be done before
the Supreme Court.
SECOND: Appeal under rule 41 from the RTC's judgement on appeal
to the Court of appeals. It is an improper appeal, and therefore it
can be dismissed.
Why? Because in that situation, an ordinary appeal or notice of
appeal is not allowed. It should have been a Petition for Review
under Rule 42.
It's as simple as that. If your mode of appeal is wrong, it would
certainly be dismissed by the Court of Appeals.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Take note that the failure to avail of the proper appellate remedy is
a ground for dismissal because appeal is not a matter of absolute
right. You have to take your appeal properly if you are the
appellant.
An appeal erroneously taken to the CA shall not be transferred to
the appropriate court but shall be dismissed outright.
That is why you really need to know the distinctions between the
different modes of appeal. 40,41, 42, 43, and 45.
Section 3. Withdrawal of appeal. - An appeal may be withdrawn
as of right at any time before the filing of the appellee's brief.
Thereafter, the withdrawal may be allowed in the discretion of
the court. (4a)
DISCUSSION
This should sound familiar because this is already discussed under
Rule 17, where complaint may be dismissed by the plaintiff as a
matter of right by filing a notice of dismissal at any time before
service of the answer or the motion for summary judgement.
Recall as well that if an answer has already been served, the
dismissal being upon motion, can only be allowed in the discretion
of the Court. If you're going to have it dismissed, it is no longer
allowed with just notice. A motion should be filed. It should be
approved by the court.
Similar to a withdrawal of an appeal. If an appellant's brief is not
filed, you could still withdraw your appeal. But if an appellee's brief
was already filed, that's the time that it would require the
discretion of the court.
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RULE 51
JUDGEMENT
Take note of when the case is deemed submitted for judgement
under Section 1.
Section 1. When case deemed submitted for judgment. — A
case shall be deemed submitted for judgment:
A. In ordinary appeals. —
1. Where no hearing on the merits of the main case is
held, upon the filing of the last pleading, brief, or
memorandum required by the Rules or by the court
itself, or the expiration of the period for its filing.
2. Where such a hearing is held, upon its termination or
upon the filing of the last pleading or memorandum
as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.
B. In original actions and petitions for review. —
1. Where no comment is filed, upon the expiration of the
period to comment.
2. Where no hearing is held, upon the filing of the last
pleading required or permitted to be filed by the
court, or the expiration of the period for its filing.
3. Where a hearing on the merits of the main case is
held, upon its termination or upon the filing of the last
pleading or memorandum as may be required or
permitted to be filed by the court, or the expiration of
the period for its filing. (n)
DISCUSSION
In ORDINARY APPEALS, it depends on whether the Court of Appeals
requires a hearing, or if it would ask for an oral argument, or a
reception of evidence.
Where a hearing on the merits is held, the case is deemed
submitted fir judgment upon the termination of such hearing or
upon the filing of the last pleading or memorandum as may be
required or permitted to be filed by the CA, or the expiration of the
period for filing.
Where no hearing is held, the case is deemed submitted for
judgement.
o It's automatic. If there is no longer a hearing, the court
must be convinced that it can render judgement on the
basis of the memoranda, or the briefs filed by the parties.
It is enough. No need for hearings, so it is submitted for
judgment.
In ORIGINAL ACTIONS AND PETITONS FOR REVIEW, meaning we're
talking about certiorari, prohibition, mandamus, quo warranto, and
then petitions for review under rule 43:
Where no comment is filed, upon the expiration of the period to
comment.
Where no hearing is held, upon the filing of the last pleading
required or permitted to be filed by the court, or the expiration of
the period for its filing.
Where a hearing on the merits of the main case is held, upon its
termination or upon the filing of the last pleading or memorandum
as may be required or permitted to be filed by the court, or the
expiration of the period for its filing.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
TAKE NOTE, I did not give much explanations here. Because this is
not really for a practicing lawyer to know. It should be for the court
to know.
Section 2. By whom rendered. - The judgement shall be
rendered by the members of the court who participated in the
deliberation on the merits of the case before its assignment to
a member for the writing of the decision.
Section 3. Quorum and voting in the court. — The participation
of all three Justices of a division shall be necessary at the
deliberation and the unanimous vote of the three Justices shall
be required for the pronouncement of a judgment or final
resolution. If the three justices do not reach a unanimous vote,
the clerk shall enter the votes of the dissenting Justices in the
record. Thereafter, the Chairman of the division shall refer the
case, together with the minutes of the deliberation, to the
Presiding Justice who shall designate two Justices chosen by
raffle from among all the other members of the court to sit
temporarily with them, forming a special division of five
Justices. The participation of all the five members of the special
division shall be necessary for the deliberation required in
section 2 of this Rule and the concurrence of a majority of such
division shall be required for the pronouncement of a judgment
or final resolution. (2a)
QUORUM AND VOTING
Each division of the CA consists of 3 justices who must unanimously
vote for the pronouncement of a judgment or final resolution.
If the vote is not unanimous, there would then be a need to form a
special division of five justices.
DISCUSSION
Section 3 talks about the internal procedure of the Court of
Appeals. How do they decide? Take note that there are divisions
within the Court of Appeals. There's a lot of divisions within the
Court of Appeals spread across 3 offices.
You have the Court of Appeals in Manila, you have the Court of
Appeals Visayas station, and then you have the Court of Appeals
Mindanao station. Each division of the Court of Appeals consists of
3 Justices, who must unanimously vote for the pronouncement of
a judgement or final resolution. So, there is one member of the
court who will be assigned to write the decision. They are called the
"ponente" of the case. If the two other Justices would agree, there
is no problem with that. That will already be the judgement or final
resolution in the case.
But what if there is a dissenting opinion? There is this one justice
that would not agree. So, the vote will not be unanimous in that
situation. What will happen now? The term of the case would be
lengthened. Why? There would then be a need to form a special
division of 5 justices. From the 3, there would now be 5 justices for
the special division of the Court of Appeals. What happens then?
PROCEDURE:
1. The Clerk shall enter the vote of the dissenting justices in
the record.
2. The Chairman of the division shall refer the case to the
Presiding Justice.
181
o It would be just like a Chief Justice for the Supreme
Court. Except that the most powerful person in the
Court of Appeals is called the Presiding Justice.
o The Presiding Justice has administrative supervision
over the Court of Appeals. Again, similar to the Chief
Justice of the Supreme Court.
3. The Presiding Justice shall designate 2 Justices chosen by
raffle from among all the other members of the Court to
sit temporarily with the original 3 forming a special
division of 5 Justices.
4. The participation of all the five members of the special
division shall be necessary for the deliberation.
o Take note that they all have to participate in the
deliberations. There is no longer a hearing. The
attendance of the parties is no longer required.
It will just be the justices who will deliberate. If
they have participated in the deliberation, we
already hurdle that procedural matter.
5. The concurrence of a majority of such special division (3
out of 5) shall be required for the pronouncement of a
judgment or final resolution.
o Take note that now, from a unanimous vote of
3, the concurrence of a majority of such special
division, meaning 3 out of 5 justices in the
special division shall be required for
the pronouncement of a judgement for final
resolution.
o It is just that the duration for the resolution of
the case would be lengthened. That is the way
the rules of the Court of Appeals work.
Section 4. Disposition of a case. — The Court of Appeals, in the
exercise of its appellate jurisdiction, may affirm, reverse, or
modify the judgment or final order appealed from, and may
direct a new trial or further proceedings to be had. (3a)
Section 5. Form of decision. — Every decision or final resolution
of the court in appealed cases shall clearly and distinctly state
the findings of fact and the conclusions of law on which it is
based, which may be contained in the decision or final
resolution itself, or adopted from those set forth in the decision,
order, or resolution appealed from. (Sec. 40, BP Blg. 129) (n)
Section 6. Harmless error. — No error in either the admission
or the exclusion of evidence and no error or defect in any ruling
or order or in anything done or omitted by the trial court or by
any of the parties is ground for granting a new trial or for setting
aside, modifying, or otherwise disturbing a judgment or order,
unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage of
the proceeding must disregard any error or defect which does
not affect the substantial rights of the parties. (5a)
DISCUSSION
Section is an important provision. It could be asked in the bar
exams.
This is what we call the “HARMLESS ERROR RULE”. This is asked in
the bar. What's important there would be the fact that the court
must disregard any error or defect which does not affect the
substantial rights of the parties. That is the most important
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
sentence in Section 6. Although there are only a couple of
sentences here. But that is actually the gist of it.
This is an important case:
FASAP versus PHILIPPINE AIRLINES
G.R. No. 178083, March 13, 2018
The harmless error rule obtains during review of the things done
by either the trial court or by any of the parties themselves in
the course of trial, and any error thereby found does not affect
the substantial rights or even the merits of the case. The Court
has had occasions to apply the rule in the correction of a
misspelled name due to clerical error; the signing of the
decedents' names in the notice of appeal by the heirs; the trial
court's treatment of the testimony of the party as an adverse
witness during cross-examination by his own counsel; and the
failure of the trial court to give the plaintiffs the opportunity to
orally argue against a motion. All of the errors extant in the
mentioned situations did not have the effect of altering the
dispositions rendered by the respective trial courts.
DISCUSSION
The harmless error rule, therefore, does not apply when a party is
able to demonstrate that the error is no longer harmless. In fact, it
is prejudicial to the substantial rights of the party. However, take
note of the case of People vs. Tehankee where the Supreme Court
made a distinction between the Harmless error rule and the
ENGLISH EXCHEQUER RULE.
PEOPLE versus TEHANKEE, JR.
G.R. Nos. 111206-08, October 6, 1995
Under the English Exchequer Rule, "a trial court's error as to the
admission of evidence was presumed to have caused prejudice
and therefore, almost automatically required a new trial." The
Exchequer rule has long been laid to rest for even English
appellate courts now disregard an error in the admission of
evidence "unless in its opinion, some substantial wrong or
miscarriage of justice has been occasioned."
American courts adopted the latter approach which required a
federal appellate court to "give judgment after an examination
of the entire record before the court, without regard to technical
errors, defects, or exceptions which do not affect the substantial
rights of the parties." We likewise follow the harmless error rule
in our jurisdiction. In dealing with evidence improperly admitted
in trial, we examine its damaging quality and its impact to the
substantive rights of the litigant. If the impact is slight and
insignificant, we disregard the error as it will not overcome the
weight of the properly admitted evidence against the prejudiced
party.
DISCUSSION
In the Philippines, the Court adopted the Harmless error rule. It is
possible that a distinction between the harmless error rule and
English exchequer rule will be asked in the bar. If this was asked in
the bar, that means I was the examiner who asked this.
Section 7. Judgment where there are several parties. — In all
actions or proceedings, an appealed judgment may be affirmed
as to some of the appellants, and reversed as to others, and the
case shall thereafter be proceeded with, so far as necessary, as
if separate actions had been begun and prosecuted, and
execution of the judgment of affirmance may be had
182
accordingly, and costs may be adjudged in such cases, as the
court shall deem proper. (6)
Section 8. Questions that may be decided. — No error which
does not affect the jurisdiction over the subject matter or the
validity of the judgment appealed from or the proceedings
therein will be considered unless stated in the assignment of
errors, or closely related to or dependent on an assigned error
and properly argued in the brief, save as the court may pass
upon plain errors and clerical errors. (7a)
DISCUSSION
Take note, the only thing that you can raise before the Court of
Appeals or any appellate court would be those assigned errors.
Those errors assigned by the parties. If such issue was not tackled
before the trial court, then the same cannot be raised for the first
time on appeal.
There are, however, exceptions such as Section 8. It can be tackled
in the appellate court if it relates to the jurisdiction of the Court, or
the validity of the judgment appealed from or the proceedings
therein. There are other exceptions. Please try to remember my
lecture for Rule 40 and 41.
Section 9. Promulgation and notice of judgment. — After the
judgment or final resolution and dissenting or separate
opinions, if any, are signed by the Justices taking part, they shall
be delivered for filing to the clerk who shall indicate thereon the
date of promulgation and cause true copies thereof to be served
upon the parties or their counsel. (n)
Section 10. Entry of judgments and final resolutions. — If no
appeal or motion for new trial or reconsideration is filed within
the time provided in these Rules, the judgment or final
resolution shall forthwith be entered by the clerk in the book of
entries of judgments. The date when the judgment or final
resolution becomes executory shall be deemed as the date of
its entry. The record shall contain the dispositive part of the
judgment or final resolution and shall be signed by the clerk,
with a certificate that such judgment or final resolution has
become final and executory. (2a, R36)
DISCUSSION
Take note that this is applicable not only to appealed cases but also
to original cases filed before the Court. How do you stop a judgment
of the Court of appeals from becoming final and executory? You
may appeal if it is allowed. There can also be motion for new trial if
it is allowed. There can also be a motion for reconsideration.
EFFECTS OF FINALITY OF JUDGMENT
1. The prevailing party is entitled to have the judgment
executed as a matter of right and the issuance of the
corresponding writ of execution becomes a ministerial
duty of the court.
• No further appellate recourse can be had even
to the SC. The remedy if the RTC refuses to issue
the writ of execution is to file a mandamus it
being a ministerial duty.
2. The court rendering the judgment loses jurisdiction over
the case so that it can no longer correct the judgment in
substance but only to make corrections of clerical errors
or mistake.
• It is already immutable.
 CIVIL PROCEDURE 183
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

3. The principle of res judicata supervenes. by the prevailing party. In that instance, who will execute the said
• This means that the judgment can no longer be decision? It will be the lower Court that will execute the judgment
disturbed by filing another case by the same even if it is an execution pending appeal.
parties.

Section 11. Execution of judgment. — Except where the

judgment or final order or resolution, or a portion thereof, is
ordered to be immediately executory, the motion for its
execution may only be filed in the proper court after its entry.

In original actions in the Court of Appeals, its writ of execution

shall be accompanied by a certified true copy of the entry of
judgment or final resolution and addressed to any appropriate
officer for its enforcement.

In appealed cases, where the motion for execution pending

appeal is filed in the Court of Appeals at a time that it is in
possession of the original record or the record on appeal, the
resolution granting such motion shall be transmitted to the
lower court from which the case originated, together with a
certified true copy of the judgment or final order to be
executed, with a directive for such court of origin to issue the
proper writ for its enforcement. (n)

EXECUTION OF JUDGMENT
A motion for execution of judgment may only be filed in the proper
court after entry of judgment pursuant to Section 10. The CA issues
a certificate of finality of judgment if no further remedy is taken
therefrom. Whether the judgment of the CA affirms or reverses the
RTC, the motion for execution is filed before the RTC, not the CA.

By way of exception, where the judgment or final order or

resolution, or a portion thereof, is ordered to be immediately
executory, there is no need to wait for entry of judgment. This
means that you can already file a motion for execution.

In original actions in the CA, its writ of execution shall be

accompanied by a certified true copy of the entry of judgment or
final resolution and addressed to any appropriate officer for its
enforcement.
o An example would be Rule 66 on quo warranto.

Recall that even if there is already perfection of the appeal but the
RTC has yet to transmit the original record or record on appeal to
the CA, the RTC still has residual jurisdiction. It is therefore the RTC
that can order execution pending appeal.

But in appealed cases, it is the CA that can order execution pending

appeal if it is already in possession of the original record or the
record on appeal.

Q: What happens if the CA grants the motion for execution

pending appeal?
A: The resolution granting such motion shall be transmitted to the
lower court from which the case originated, together with a
certified true copy of the judgment or final order to be executed,
with a directive for such court of origin to issue the proper writ for
its enforcement. Thus, it is the lower court, not the CA that executes
the judgment.

For example, a case is decided in Davao City RTC which the CA

affirms in toto and it became final and executory. But before entry
of judgment (meaning no final and executory judgment), a motion
for execution of judgment pending appeal before the CA was filed
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
POST JUDGMENT REMEDIES
AGAINST THE COURT OF APPEALS (RULES 52-53)
*From the lectures of Atty. Jess Zachael Espejo
POST CA JUDGMENT REMEDIES CAN BE:
REMEDIES AVAILABLE AFTER REMEDIES AFTER FINALITY
CA JUDGMENT BUT BEFORE OF JUDGMENT:
FINALITY:
1. Motion for reconsideration The extraordinary remedies
under Rule 52 under Rule 65, if applicable.
2. Motion for new trial under Petition for relief from
Rule 53 judgment under rule 38 and
3. Appeal by certiorari under Annulment of judgment under
Rule 45. Rule 47 are not available
against the Court of Appeals
The above remedies are in a
way successive. If the motions
under Rules 52-53 are denied,
the aggrieved party may still
appeal.
REMEDIES AVAILABLE AFTER CA JUDGMENT BUT BEFORE
FINALITY:
1. Motion for reconsideration under Rule 52
Remember that it should be within the period prior to the judgment
attaining finality
2. Motion for new trial under Rule 53
3. Appeal by certiorari under Rule 45
Take note that compared to ordinary civil actions, your remedy is
to that of the Supreme Court. The bad thing is here is when you
appeal from the judgment of the Court of Appeals, the only
questions you can raise are pure questions of law because the
mode of review here is Rule 45 and take note that SIMILAR to
ordinary civil actions, these remedies are in a way successive. If the
motions under Rules 52-53 are denied, the aggrieved party may still
appeal. The problem is that it is an appeal by certiorari under Rule
45 on pure questions of law.
REMEDIES AFTER FINALITY OF JUDGMENT:
We remember that there are a lot of remedies in an ordinary civil
action. You can file a Petition for Relief from judgment with a
double period of 60 days and 6 months. Another remedy is
Annulment of judgment under Rule 47 and of course you have the
extraordinary remedies under 65, certiorari or prohibition.
Q: How about here in the Court of appeals?
A: Only the extraordinary remedy under Rule 65 if applicable
because remember that it is limited to Grave Abuse of Discretion
amounting to lack or excess of jurisdiction.
You can’t anymore file for Petition for relief from judgment under
Rule 38. Remember that this remedy can be filed before the same
court that rendered the judgment. If it is the MTC, you file there. If
it is with the RTC, you file it with the RTC.
Q: What about with the CA? There is Fraud, Accident, Mistake,
Excusable Negligence (FAME)?
A: Take note of the several cases that were mentioned that states
that there is no Petition for Relief before the CA and the Supreme
Court. Such relief is limited to the trial courts.
Q: What about annulment of Judgment?
A: It is still not available against the CA. If it is the MTC, you file for
the Annulment of Judgment on the ground of lack of jurisdiction or
184
extrinsic fraud before the RTC. BP 129 provides that in any other
case not falling within the jurisdiction of any other court or tribunal,
you file that before the RTC. If you want to have the judgment of
the RTC annulled, you file it before the Court of Appeals pursuant
to the express provision of BP 129 which provides that the
Annulment of Judgment of RTC should be filed with the CA.
Q: How about the CA? are there Constitutional provisions? In BP
129? Or in the Rules of Court that mentions that if you want the
judgment of the CA to be annulled, you can file it before the
Supreme Court?
A: No! You can no longer avail of that remedy (Annulment of
Judgment) because there is no statutory, provisional or doctrinal
basis for it. You can however file for Certiorari under Rule 65.
RULE 52
MOTION FOR RECONSIDERATION
Section 1. Period for filing. — A party may file a motion for
reconsideration of a judgment or final resolution within fifteen
(15) days from notice thereof, with proof of service on the
adverse party. (n)
Section 2. Second motion for reconsideration. — No second
motion for reconsideration of a judgment or final resolution by
the same party shall be entertained. (n)
Take note that second motion for reconsideration is also not
allowed before the court of appeals. Rule 52 is very clear that a
second motion for reconsideration filed by the same party.
Let’s just say if the motion for reconsideration first filed by the
appellant was granted. Now, the appellee filed for a motion for
reconsideration, is that allowed? YES, because that is a motion for
reconsideration not by the same party.
Section 3. Resolution of motion. — In the Court of Appeals, a
motion for reconsideration shall be resolved within ninety (90)
days from the date when the court declares it submitted for
resolution. (n)
Section 4. Stay of execution. — The pendency of a motion for
reconsideration filed on time and by the proper party shall stay
the execution of the judgment or final resolution sought to be
reconsidered unless the court, for good reasons, shall otherwise
direct. (n)
DISCUSSION
The mere filing of the motion for reconsideration can stay the
execution of judgment like discussed in Rule 51 but it is in direct
contrast with Rule 65 when we were discussing the distinction
between Rule 45 and Rule 65 because the filing of the petition for
Certiorari under Rule 65 does not stay the judgment you are trying
to question by way of that petition. If you want to stay the
judgment you want to be reviewed by the higher court, you should
ask for a TRO or a writ of preliminary Injunction. In this case, it has
the effect of staying the judgment by filing a motion for
reconsideration.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
COMPARISON OF MOTION FOR RECONSIDERATION under RULE
37 and RULE 52
MOTION FOR MOTION FOR
RECONSIDERATION UNDER RECONSIDERATION UNDER
RULE 37 RULE 852
As to GROUNDS
Grounds are that the damages Grounds are not stated but it
awarded are excessive, that depends on whether it is an
the evidence is insufficient to appealed case or an original
justify the decision or final case. If it is an appealed case,
order, or that the decision or you say that the CA erred in
final order is contrary to law. affirming or reversing the RTC
or the QJB. If it is an original
case, you can plead
insufficiency of evidence or
that the decision or final order
is contrary to law.
As to PERIOD to file
Period is within the time for Period is within 15 days from
taking an appeal (15 days) notice of judgment or final
order.
Period to resolve
Period to resolve is withing 30 Within 90 days from the date
days from the time it is when the court declared it
submitted for resolution submitted for resolution.
In both, no party is allowed to file a second motion for
reconsideration
DISCUSSION
In Rule 37, the grounds (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) are stated. On the
other hand, under Rule 52, there is no provision about grounds.
They are not specified but it would depend if it is an appealed case
before the CA or an original case filed before the Court of Appeals.
In an appealed case, you can say (in practice only because there’s
nothing in the rules state otherwise) that the CA erred in affirming
or reversing the RTC or quasi-judicial body if the appeal is taken
under Rule 43. That is the ground for your motion for
reconsideration if the CA erred in affirming or reversing the
decision.
If it is an original case, you can plead insufficiency of evidence, or
that the decision or order is contrary to law similar to the ones in
Rule 37.
Take note the period for filing a motion for reconsideration under
Rule 37 is within the time for taking an appeal (15 days). Remember
that the Neypes Doctrine is also applicable which states that the
moment you receive an order denying the motion of
reconsideration, you are entitled to a fresh period.
On the other hand, Motion for reconsideration under rule 52,
period is 15 days from notice of judgment or final order. If you are
aggrieved meaning your motion for reconsideration was denied by
the Court of Appeals, your mode of review is Rule 45 to the
Supreme Court on pure questions of Law. Neypes Doctrine also
applies in Rule 45 which allows for a fresh period to appeal (15
days). This doctrine standardized the period to appeal.
Period to resolve is withing 30 days from the time it is submitted
for resolution but in Rule 52, within 90 days from the date when
the court declares it submitted for resolution. Again it is something
185
to be known only by the CA not practitioners. Why? Would they
follow that? The practitioners can’t do anything if the CA decided
to resolve after 120 days. There is nothing to be gained in
memorizing the period to resolve.
In both, no party is allowed to file a second motion for
reconsideration. If it is the same party, second motion for
reconsideration is not allowed. If it is the appellant who filed it is
allowed if the appellee filed a separate motion.
There principles that are unique to Rule 52 that cannot be found
under Rule 37. One is:
Section 4. Stay of execution. — The pendency of a motion
for reconsideration filed on time and by the proper party
shall stay the execution of the judgment or final resolution
sought to be reconsidered unless the court, for good
reasons, shall otherwise direct.
The unique provision here is that “the court, for good reasons, shall
otherwise direct.” Because if it is a motion for reconsideration filed
under Rule 37, can the judgment be executed.
PRINCIPLES UNIQUE TO RULE 52
§ The pendency of a motion for reconsideration filed on
time and by the proper party shall stay the execution of
the judgment or final resolution sought to be
reconsidered unless the court, for good reasons, shall
otherwise direct (Section 4).
§ If a party intends to subsequently file a petition for
certiorari under Rule 65 against the CA, he has to file a
motion for reconsideration.
o It (referring to prior filing of MR) cannot be directly
associated with Rule 37 but you can associate that
here Rule 52.
§ Note that certiorari to the SC under Rule 65 is available
against the CA if the latter has acted without or in excess
of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is
no appeal, or any plain, speedy, and adequate remedy
in the ordinary course of law.
o You cannot file directly certiorari under Rule 65. You
have to show that an appeal is not available as a
remedy. You have to show you do not have other
remedy in the ordinary course of law.
PDIC v. Gidawani
G.R. 234616, June 20, 2018
Jurisprudence teaches, in a litany of cases, that a motion for
reconsideration is generally considered as the plain, speedy, and
adequate remedy that is a condition sine qua non to the filing
of a petition for certiorari, within the contemplation of Rule 65,
Section 1 of the Rules of Court.
So, you have to file a Motion for Reconsideration. If you did not file
a MR, your certiorari will be denied. Your petition will be dismissed.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 53
NEW TRIAL
*From the lectures of Atty. Jess Zachael Espejo
Section 1. Period for filing; ground. — At any time after the
appeal from the lower court has been perfected and before the
Court of Appeals loses jurisdiction over the case, a party may file
a motion for a new trial on the ground of newly discovered
evidence which could not have been discovered prior to the trial
in the court below by the exercise of due diligence and which is
of such a character as would probably change the result. The
motion shall be accompanied by affidavits showing the facts
constituting the grounds therefor and the newly discovered
evidence.
DISCUSSION
“At any time after the appeal from the lower court has been
perfected and before the Court of Appeals loses jurisdiction over
the case”
Meaning, you can still file a motion for new trial even if the CA has
already decided. So, it starts from the period when the RTC has only
residual jurisdiction and the period stops until such time the CA
loses jurisdiction also. The reckoning point in that case would be
when the RTC has residual jurisdiction up to when the CA has
residual jurisdiction. The period is too long. Actually, the period is
encompassing the entire time that the case is pending on appeal
before the CA.
As to the NDE:
So, the evidence should be useful from the trial court. Because if
you had that evidence or discovered that evidence at the time
when the trial was still ongoing, in the RTC for example, it would
have altered the result. You could have possibly won the case. So,
if you have that evidence from the RTC but you just filed in the CA,
it is allowed under Section 1.
Take note as well of the main difference between Section 1 of Rule
53 and Rule 37 on MNT with regard to the grounds.
Q: What is conspicuously absent in Section1?
A: FAME are absent, the only ground for filing would be NDE, if it is
a motion for new trial before the CA.
Section 2. Hearing and order. — The Court of Appeals shall
consider the new evidence together with that adduced at the
trial below, and may grant or refuse a new trial, or may make
such order, with notice to both parties, as to the taking of
further testimony, either orally in court, or by depositions, or
render such other judgment as ought to be rendered upon such
terms as it may deem just.
Section 3. Resolution of motion. — In the Court of Appeals, a
motion for new trial shall be resolved within ninety (90) days
from the date when the court declares it submitted for
resolution.
Section 4. Procedure in new trial. — Unless the court otherwise
directs, the procedure in the new trial shall be the same as that
granted by a Regional Trial Court.
In other words, what is the effect? It will set a new hearing for the
reception, precisely because of that newly discovered evidence
which can be delegated to any judge or member of the CA.
186
COMPARISON
MOTION FOR NEW TRIAL MOTION FOR NEW TRIAL
UNDER RULE 37 UNDER RULE 53
Ground are FAME and newly The only ground is newly
discovered evidence discovered evidence.
Period is within the time for Period is at any time after the
taking an appeal (15 days). appeal from the lower court
has been perfected and before
the CA loses jurisdiction over
the case.
Period to resolve is within 30 Period to resolve is within 90
days from the time it is days from the date when the
submitted for resolution. court declares it submitted for
resolution.
If a new trial is granted, the The CA shall consider the new
original judgment or final evidence together with that
order shall be vacated, and adduced at the trial below,
the action shall stand for trial and may grant or refuse a new
de novo (new trial); but the trial, or may make such order
recorded evidence taken upon as to the taking of further
the former trial, in so far as the testimony, either orally in
same is material and court, or by depositions, or
competent to establish the render such other judgment as
issues, shall be used at the ought to be rendered upon
new trial without retaking the such terms as may be just.
same.
DISCUSSION: It is not a full-
blown trial. Trial with regard
to the newly discovered
evidence only.
In both, the motion shall be accompanied by affidavits
representing the newly discovered evidence.
RULE 54
INTERNAL BUSINESS
Section 1. Distribution of cases among divisions. — All the
cases of the Court of Appeals shall be allotted among the
different divisions thereof for hearing and decision. The Court
of Appeals, sitting en banc, shall make proper orders or rules to
govern the allotment of cases among the different divisions, the
constitution of such divisions, the regular rotation of Justices
among them, the filing of vacancies occurring therein, and other
matters relating to the business of the court; and such rules shall
continue in force until repealed or altered by the Supreme
Court.
Section 2. Quorum of the court. — A majority of the actual
members of the court shall constitute a quorum for its
sessions en banc. Three members shall constitute a quorum for
the sessions of a division. The affirmative votes of the majority
of the members present shall be necessary to pass a resolution
of the court en banc. The affirmative votes of three members of
a division shall be necessary for the pronouncement of a
judgment or final resolution, which shall be reached in
consultation before the writing of the opinion by any member
of the division Sec. 11, first par. of BP Blg. 129, as amended by
Sec. 6 of EO 33).
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 55
PUBLICATIONS OF JUDGMENTS AND FINAL RESOLUTIONS
*From the lectures of Atty. Jess Zachael Espejo
Section 1. Publication. — The judgments and final resolutions
of the court shall be published in the Official Gazette and in the
Reports officially authorized by the court in the language in
which they have been originally written, together with the
syllabi therefor prepared by the reporter in consultation with
the writers thereof. Memoranda of all other judgments and final
resolutions not so published shall be made by the reporter and
published in the Official Gazette and the authorized reports.
Section 2. Preparation of opinions for publication. — The
reporter shall prepare and publish with each reported judgment
and final resolution a concise synopsis of the facts necessary for
a clear understanding of the case, the names of counsel, the
material and controverted points involved, the authorities cited
therein, and a syllabus which shall be confined to points of law.
(Sec. 22a, R.A. No. 296) (n)
Section 3. General make-up of volumes. — The published
decisions and final resolutions of the Supreme Court shall be
called "Philippine Reports," while those of the Court of Appeals
shall be known as the "Court of Appeals Reports." Each volume
thereof shall contain a table of the cases reported and the cases
cited in the opinions, with a complete alphabetical index of the
subject matters of the volume. It shall consist of not less than
seven hundred pages printed upon good paper, well bound and
numbered consecutively in the order of the volumes published.
(Sec. 23a, R.A. No. 296) (n)
187
RULE 56
PROCEDURE IN THE SUPREME COURT
A. Original Cases
Section 1. Original cases cognizable. – Only petitions for certiorari,
prohibition, mandamus, quo warranto, habeas corpus, disciplinary
proceedings against members of the judiciary and attorneys, and
cases affecting ambassadors, other public ministers and consuls
may be filed originally in the Supreme Court.
DISCUSSION
Take note that Section 1, which talks about original cases that can
be filed directly with the Supreme Court, that is subject to a lot of
things:
(1) It is not an exclusive enumeration of cases that are originally
cognizable by the SC.
• We learned that when we talked about jurisdiction
of the SC in our first few meetings.
• We enumerated what are cases that fall within the
original exclusive jurisdiction of the SC.
(2) When you talk about certiorari, prohibition, mandamus, quo
warranto, habeas corpus: those are subject to the doctrine of
judicial hierarchy.
• You cannot go directly to the SC.
(3) BUT when you talk about disciplinary proceedings against
members of the judiciary and attorneys: take note that you
can only file that before the SC. You cannot file that before the
Court of Appeals.
(4) Cases affecting ambassadors, other public ministers and
consuls: take note that that portion of the SC’s jurisdiction is
also concurrent original shared by the Regional Trial Court
only. The CA has no jurisdiction when it comes to that.
KINDLY REVIEW our discussion on the cases falling under the
exclusive and concurrent original jurisdiction of the Supreme Court
(and the doctrines that accompany them).
Section 2. Rules applicable. – The procedure in original cases for
certiorari, prohibition, mandamus, quo warranto and habeas
corpus shall be in accordance with the applicable provisions of the
Constitution, laws and Rules 46, 48, 49, 51, 52 and this Rule, subject
to the following provisions:
a.) All references in said Rules to the Court of Appeals shall be
understood to also apply to the Supreme Court;
b.) The portions of said Rules dealing strictly with and specifically
intended for appealed cases in the Court of Appeals shall not
be applicable; and
c.) Eighteen (18) clearly legible copies of the petition shall be
filed, together with proof of service on all adverse parties.
(xxx)
DISCUSSION
TAKE NOTE: If you look at it, what would be applicable, assuming
for example that a case is originally tried before the SC.
Examples:
• Rule 46 – original cases filed before the CA. You will just
replace the reference to the CA to mean the SC.
• Rule 48 – preliminary conference. So you will just apply that.
• Rule 51 – judgment. You also apply that.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
• Rule 52 – motion for reconsideration.
So, all of these are applicable to the SC.
(xxx)
The proceedings for disciplinary action against members of the
judiciary shall be governed by the laws and Rules prescribed
therefor, and those against attorneys by Rules 139-B, as amended.
DISCUSSION
So what usually happens is that the same shall be referred to the
IBP Committee on Bar Discipline, who will then make
recommendations. Then the SC will simply affirm or adopt the
recommendations of the said committee.
TAKE NOTE OF LETTER C: EIGHTEEN COPIES AGAIN?!?
Thankfully, NO. That is no longer applicable. Under Section 5(a) of
the Efficient Use of Paper Rule, the petition will be filed as follows:
• One original (properly marked) and four copies, unless the
case is referred to the Court En Banc, in which event, the
parties shall file ten additional copies. For the En Banc, the
parties need to submit only two sets of annexes, one attached
to the original and an extra copy. For the Division, the parties
need to submit also two sets of annexes, one attached to the
original and an extra copy.
• Parties to cases before the Supreme Court are further required
to submit, simultaneously with their court-bound papers, soft
copies of the same and their annexes (the latter in PDF format)
either by email to the Court’s e-mail address or by compact
disc (CD).
(Discussed in Rule 35)
B. Appealed Cases
Section 3. Mode of Appeal. – An appeal to the Supreme Court may
be taken only by a petition for review on certiorari; except in
criminal cases where the penalty imposed is death, reclusion
perpetua or life imprisonment.
DISCUSSION
KINDLY REVIEW our discussion on the cases falling under the
exclusive appellate jurisdiction of the Supreme Court.
Practically everybody else, that’s Rule 45 – On pure questions of
law. But if it is a petition for the issuance of a writ of amparo, writ
of habeas data, and writ of kalikasan: you can raise your Rule 45
petition also with questions of facts in addition to questions of law.
CASE APPEALABLE MODE OF APPEAL
TO THE SC OR REVIEW
Criminal cases where the Automatic review
penalty imposed is death
Criminal cases where the Ordinary appeal by notice of
penalty imposed is appeal to the Supreme Court
reclusion perpetua or life (discussed in Criminal Procedure)
imprisonment
Any other case Appeal by certiorari under Rule
45 on pure questions of law (as a
general rule)
188
Section 4. Procedure. – The appeal shall be governed by and
disposed of in accordance with the applicable provisions of the
Constitution, laws, Rule 45, 48, Sections 1, 2 and 5 to 11 of Rule 51,
52 and this Rule.
DISCUSSION
Rule 45 (appeal by certiorari), Rule 48 (preliminary conference -this
is still present in the SC), Rule 51 (judgment), and Rule 52 (motion
for reconsideration.
Note that only Rule 52 is mentioned and not Rule 53. This means
that a party who did not prevail in the SC may file a motion for
reconsideration. However, because the SC is not a trier of facts, the
filing of a motion for new trial is not allowed; (no matter what kind
of newly discovered evidence you have).
The SC does not accept evidence, as a general rule. It is not a trial
court, in other words. But remember, a party who did not prevail in
the SC may file a motion for reconsideration.
Q: LET’S SAY YOU LOST IN THE SC, THEN YOU FILED A MOTION FOR
RECONSIDERATION. WHAT ARE THE CHANCES THAT THE
JUDGMENT/DECISION OF THE SC WILL BE REVERSED?
A: It depends.
(1) If it is a division case, you can have its resolution
referred to the Court en banc.
(2) Second is through motion for reconsideration.
o It can be reversed there, just like what
happened in the labor case (Ramos vs.
Court of Appeals)
RAMOS VS. COURT OF APPEALS
Where the Supreme Court laid down the doctrine that for purposes
of allocating responsibility in medical negligence cases, an
employer-employee relationship is deemed to exist between
hospitals and their physicians-consultants. That’s the
dictum/doctrine there.
So the hospital (Delos Santos Medical Center) here lost. They filed
a Motion for Reconsideration. It is a very well-argued Motion for
Reconsideration that the SC had to reverse its law of the case (case
law). Meaning, such was not applicable to the particular
respondent hospital here. But the doctrine (for purposes of
allocating the responsibility in medical malpractice cases, there is
an employer-employee relationship that exists between the hospital
and their physicians-consultants) still remains.
Take note, motion for new trial is not allowed but motion for
reconsideration is allowed.
Section 5. Grounds for dismissal of appeal. — The appeal may
be dismissed motu proprio or on motion of the respondent on
the following grounds:
(a) Failure to take the appeal within the reglementary
period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs;
(d) Failure to comply with the requirements regarding
proof of service and contents of and the documents
which should accompany the petition:
 CIVIL PROCEDURE 189
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

(e) Failure to comply with any circular, directive or order
of the Supreme Court without justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the
Supreme Court.
More or less, these are just repetitions, very similar to Rule 44 the
grounds for dismissal of appeal.
Section 6. Disposition of improper appeal. — Except as
provided in section 3, Rule 122 regarding appeals in criminal
cases where the penalty imposed is death, reclusion perpetua or
life imprisonment, an appeal taken to the Supreme Court by
notice of appeal shall be dismissed.
An appeal by certiorari taken to the Supreme Court from the
Regional Trial Court submitting issues of fact may be referred to
the Court of Appeals for decision or appropriate action. The
determination of the Supreme Court on whether or not issues
of fact are involved shall be final.
1. All cases involving the constitutionality of a treaty,
international or executive agreement, or law;
2. All cases which under the Rules of Court are required to
be heard en banc (ex. declaring the successful candidates
to the Philippine Bar)
3. All cases involving the constitutionality, application, or
operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations (Art. VIII,
Sec. 4[2]);
4. Cases heard by a division when the required majority in
the division is not obtained;
5. Cases involving a modification or reversal of a doctrine or
principle of law laid down previously by the Supreme
Court in a decision rendered en banc or by a division (Art.
VII, Sec. 4[3]);
6. Cases involving the discipline of judges of lower courts
(Art. VIII, Sec. 11);
7. Contests relating to the election, returns, and
qualifications of the President or Vice-president (Art. VII,
Sec. 4).

DISCUSSION
First paragraph:
Q: What are the exceptions there?
A: Death, reclusion perpetua or life imprisonment. If reclusion
perpetua or life imprisonment, your mode of appeal is notice of
appeal, that is the implication of Section 6. Death, again, is
automatic review based on the constitution but what is the proper
mode of appeal? its Rule 45, appeal by certiorari or writ of error.
Second paragraph:
Just take note that the CA will dismiss your case outright if your
mode of appeal is improper. Unlike if you file a wrong Rule 45
petition before the SC, because it involves a question of fact, the SC
would at least refer it back to CA, for proper action. So, the CA is
stricter, thus, you should be careful with this in practice.

Section 7. Procedure if opinion is equally divided. — Where the

court en banc is equally divided in opinion, or the necessary
majority cannot be had, the case shall again be deliberated on,
and if after such deliberation no decision is reached, the original
action commenced in the court shall be dismissed, in appealed
cases, the judgment or order appealed from shall stand
affirmed; and on all incidental matters, the petition or motion
shall be denied.

DISCUSSION
If you cannot get the majority of the court, it is as if you did not file
a petition, that is the effect. There are 15 justices, what is the
majority of that? 8. What happens if in the voting there would be a
tie between yes and no? The petition should be dismissed.

An example of this is the case of Cruz vs DENR Secretary, which

questioned the constitutionality of the IPRA. The Court was equally
divided (6:6, with 3 not participating in the deliberation). In this
case, they were not successful in declaring IPRA as unconstitutional
because they got equal votes, so the petition was dismissed. And
by default, the law is constitutional.

CASES WHICH UNDER THE 1987 CONSTITUTION MUST BE HEARD

EN BANC
Under the Constitution of the Philippines, the following cases
should be heard by the Supreme Court en banc:
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
RULE 39
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
*From the lectures of Atty. LCYE
This should be discussed last because actually in all cases, this is the
final incident, this is the foot of litigation. Because what is the sense
of winning case if you cannot execute. This is how we feel that we
are already winners, because if you have a decision in your favor
but you cannot execute, all you have is a piece of paper.
Section 1. Execution upon judgments or final orders. —
Execution shall issue as a matter of right, on motion, upon a
judgment or order that disposes of the action or proceeding
upon the expiration of the period to appeal therefrom if no
appeal has been duly perfected. (1a)
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 judgment obligee, submitting therewith certified
true copies of the judgment or judgments or final order or
orders sought to be enforced and of the entry thereof, with
notice to the adverse party.
The appellate court may, on motion in the same case, when the
interest of justice so requires, direct the court of origin to issue
the writ of execution. (n)
DISCUSSION
Section 1 talks about Execution as a matter of right. When do you
say that execution is a matter of right? It is now the ministerial duty
of the court to issue a writ of execution because the case is now
final and executory.
Q: When will the judgement be final and executory? And
execution is now a matter of right?
A: When for example, no appeal is filed and then the reglementary
period has already lapsed. And so, the judgment is now final and
executory. Or under the second paragraph, if there is a perfected
appeal but it has been resolved, or an MR but it was denied, so
there is already a final and executory judgement. Again, execution
here is a matter of right.
Q: So where do we file this motion for execution under Section 1?
A: The rule says that it could be applied for in the court of origin.
So, meaning if it’s from the RTC, then you appealed to the CA, lost
then appealed to the SC, but still lost, and the decision now has
become final and executory.
Q: Who files for the motion for execution?
A: The winning party.
Q: What are the requirements for the motion?
A: We need to attach the certified true copy of the judgement/s or
orders sought to be enforced and entry, with notice to the adverse
party.
It is also allowed for it to be filed with the appellate court but that
is the exception, when the interest of justice so requires. So, here
the appellate court will now direct the court of origin to issue the
writ of execution. So it is still the court of origin (i.e. RTC) that will
issue the writ of execution and then the approval only will be with
the appellate court.
190
That is a different order, the granting of the writ of execution itself.
That is the order issued by the court in response to the motion for
execution. But, the writ of execution itself, it is usually prepared by
the sheriff. That’s what they bring during execution, under of
course to the authority of the court.
EXECUTION DEFINED
• Execution is a remedy afforded by law for the
enforcement of a judgment, its object being to obtain
satisfaction of the decision on which the writ is issued
(DOROTEA TANONGON vs. FELICIDAD SAMSON, ET AL.,
G.R. No. 140889, May 9, 2002).
• Execution of a final judgment is the fruit and end of the
suit (BONGCAC vs. SANDIGANBAYAN, G.R. Nos. 156687-
88, May 21, 2009).
CLASSES OF EXECUTION
As to nature, execution can be:
1. COMPULSORY, or EXECUTION AS A MATTER OF RIGHT
(Sec. 1);
This is the one in Section 1, this happens when the decision or
judgement has already become final and executory.
2. DISCRECTIONARY, or EXECUTION PENDING APPEAL (Sec.
2)
Meaning, it depends upon the court if it will allow the
execution. So here, the decision is not yet final and executory
but the rules allow it.
As to how it is enforced (Section 6), execution can be:
1. EXECUTION BY MOTION;
This usually happens within 5 years from the time that the
judgement become final and executory.
2. EXECUTION BY INDEPENDENT ACTION.
Meaning, you have to file a case for the revival of the
judgement, so this is after the lapse of 5 years. Motion is no
longer allowed so it has to be by the filing of an independent
action.
JURISDICTION PENDING APPEAL
RESIDUAL JURISDICTION refers to the authority of a trial court to
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 Sec. 2 of Rule 39, and
allow withdrawal of the appeal provided these are done:
A. Prior to the transmittal of the original record or the
record on appeal even if the appeals have already been
perfected; or
B. In case of a petition for review under Rule 42, before the
Court of appeals gives due course to the petition (Sec. 8,
Rule 42, Rules of Court).
DISCUSSION
In relation to execution, we discuss Residual Jurisdiction of the
court. When we relate this to Rule 39, we are referring to at what
stage of the proceeding will the court of origin have the power to
implement its own decision or order execution pending appeal.
For example, the case originated with the RTC, and then it was
appealed to the CA. So, at what point in time can the RTC if for
example the judgement or decision can be executed pending
appeal? When can the RTC here order execution?
 CIVIL PROCEDURE 191
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

It is at that time when the RTC still has residual jurisdiction. We of such jurisdiction is not specifically pointed out by law
already discussed before when the court has residual jurisdiction. or by these Rules, any suitable process or mode of
For example, when it is an ordinary appeal prior to the transmittal proceeding may be adopted which appears conformable
of the original record, or the record in appeal, the court of origin to the spirit of said law or Rules.
still has power to order execution pending appeal. Or if it is a
petition for review under Rule 42, so, meaning, for example the RTC DISCUSSION
in its appellate jurisdiction, so it can order an execution pending
The power to enforce and execute judgement is inherent in court.
appeal if the appeal has not yet been given due course. Meaning,
This is provided for also in Section 5 of Rule 134. Under section 6, it
the petition for review has not yet been given due course pursuant
says that “, all auxiliary writs, processes and other means necessary
to Sec. 8, Rule 42 of the Rules of Court, so prior to that it can still
to carry it into effect may be employed by such court or officer” so
order execution pending appeal.
meaning, when by law, jurisdiction is conferred on a court, the
court can issue processes, orders, decisions, and it can exercise
Q: After that, going back to letter (A), if the records has already
such authority to implement that decision or to carry into effect
been transmitted to the court of appeals, or in letter (B), if the
such writs, processed or orders.
court has already given due course to the petition for review, is
execution pending appeal still allowed?
PART OF THE JUDGMENT TO BE EXECUTED
A: Yes, it is still possible. But it will not be the RTC who will order
The dispositive portion (also called "fallo") of the judgment is that
it, you need to file a motion with the CA because the court of origin
part which is subject to execution (Sec. 8, Rule 39, Rules of Court).
no longer has residual jurisdiction after the lapse of the period or
This portion of the judgment finally invests rights upon the parties,
stages mentioned in letters (A) and (B).
sets conditions for the exercise of those rights, and imposes the
corresponding duties and obligations. If there is a conflict between
JURISDICTION AFTER FINALITY OF JUDGMENT
the dispositive portion of the decision and the body thereof, the
Can the court execute its own judgment even if by the finality of the
dispositive portion controls irrespective of what appears in the
judgment the court loses jurisdiction?
body (GLOBE TELECOM, INC. vs. FLORENDO FLORES, 390 SCRA 201).
One of the effects of the finality of judgment is that the court loses
DISCUSSION
jurisdiction over the case. When a court loses jurisdiction, it is said
that it can no longer act on the case. What is meant by this You have read a decision in SCRA right, Supreme Court decisions,
so it is the fallo or the dispositive portion that is being executed. For
statement is that, the court can no longer change its own judgment.
The judgment is beyond the power of the court to change or alter. example, “Wherefore, premises considered, the Court hereby
directs that the defendant should return the land covered by TCT
The statement does not cover the aspect of execution.
14344…” So, we discussed in the judgement what is fallo, so in case
A court that cannot execute its own judgment is a powerless court. of conflict in the dispositive portion and the body of the judgement,
which shall prevail? It is the dispositive portion which will prevail,
Thus, in order to serve the ends of justice, a court must be able to
irrespective of what appears in the body as decided by the court in
enforce its own judgment even after it is deemed to have lost
jurisdiction over the case. Verily, jurisdiction is the power of the the case of Globe Telecom v. Florendo Flores.
court to act on a case, to try it, to decide and to enforce its
WRIT OF EXECUTION MUST CONFORM WITH JUDGMENT
judgment.
The writ of execution should conform to the dispositive portion of
the decision to be executed and the execution is void if it is in excess
DISCUSSION
of and beyond the original judgment or award for it is a settled
The question here is, Can the court execute its own judgment even general principle that a writ of execution must conform strictly to
if by the finality of the judgment the court loses jurisdiction? Of
every essential particulars of the judgment promulgated
course, the court, even if we just follow our common sense, what
(EQUATORIAL REALTY DEVELOPMENT, INC. vs. MAYFAIR THEATER,
is the use of a judgement that you cannot implement? So, meaning,
INC., 332 SCRA 139).
even if technically we say that after the judgement has become
final, the court loses jurisdiction over the case. It only means that
DISCUSSION
the court can no longer change or modify its decision, so the
decision shall stand as it is, and it is now subject to implementation. In execution also, it is basic that the writ of execution must conform
Because a court that cannot implement its own decision is a with the judgement. The writ of execution is different from
powerless court, it is a part and parcel of the authority of the court decision, so the court will first render a decision, then, the decision
to be able to implement its own decision, so that’s just the meaning will have its dispositive portion or the fallo, and then if the defeated
party does not voluntarily comply with the decision, so here the
of a judgement becoming final and executory.
prevailing party will move for its execution, so motion for execution
of judgement. The court will approve that, then the writ of
• It can even be said that the power to enforce and execute a
execution will follow.
judgment is inherent in a court. Section 5 of Rule 134 provides
that it is an inherent power of the court to compel obedience
The writ of execution will recite everything that was in the decision,
to its judgments, orders and processes. Furthermore, Section
it will only cite the dispositive portion, although in some cases, it
6 states that:
will cite some specific parts of the dispositive portion. So, for
example, there is a computation in the decision, for example:
Sec. 6. Means to carry jurisdiction into effect - When by
law jurisdiction is conferred on a court or judicial officer, “The defendant is hereby ordered to pay a sum of 1 million
all auxiliary writs, processes and other means necessary pesos plus interest at 1% a month until he fully complies
to carry it into effect may be employed by such court or
with the decision”
officer; and if the procedure to be followed in the exercise
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
So, here, how much is 1% a month? It could be that such may be
computed in the writ of execution. Now, there are instances when
the writ of execution does not conform with the tenor of the
decision. For example, the tenor of decision is that the liability of
the debtor is joint only, by the use of “and” but in the writ of
execution it is not “or” so it becomes solidary obligation. That is not
allowed because it varies the tenor of the judgement, the writ of
execution must conform with the judgement.
• The writ may not vary the terms of the judgment to be
executed (BUAN vs. COURT OF APPEALS, 235 SCRA 424).
Thus, if the judgment does not provide for the payment of
interest, the writ of execution cannot modify the judgment
by requiring the judgment obligor to pay interest. That part
of the writ imposing interest is void (SOLIDBANK
CORPORATION vs. COURT OF APPEALS 379 SCRA 159).
• An order of execution which does not substantially conform
to the dispositive portion of the decision sought to be
executed or which varies or goes beyond the terms of the
judgment it seeks to enforce is null and void (LAO vs. KING,
G.R. No. 160358, August 31, 2006).
What is the status of that writ of execution which does not
substantially comply with the dispositive portion of the decision?
That writ of execution is null and void, you can move to quash that
writ of execution.
GREATER METROPOLITAN MANILA SOLID WASTE
MANAGEMENT COMMITTEE vs. JANCOM ENVIRONMENTAL
CORPORATION (G.R. No. 163663, June 30, 2006
FACTS: Then President Fidel V. Ramos created an Executive
Committee to oversee and develop waste-to-energy projects for
the waste disposal sites in San Mateo, Rizal and Carmona.
JANCOM was one of the bidders for the San Mateo Waste
Disposal Site. The Executive Committee approved the
recommendation of the Pre-qualification, Bids and Awards
Committee to declare JANCOM as the sole complying bidder for
the San Mateo Waste Disposal Site. On December 19, 1997, a
contract was entered into by the Republic of the Philippines and
JANCOM. The contract was submitted for approval to President
Ramos who subsequently endorsed it to then incoming
President Joseph E. Estrada.
Owing to the clamor of the residents of Rizal, the Estrada
administration ordered the closure of the San Mateo landfill.
Petitioner GMMSWMC thereupon adopted a Resolution not to
pursue the contract with JANCOM.
On March 14, 2000, JANCOM filed a petition for certiorari with
the Regional Trial Court (RTC) of Pasig City where it was
docketed as Special Civil Action No. 1955, to declare the
GMMSWMC Resolution and the acts of the MMDA calling for
bids for and authorizing the forging of a new contract for the
Metro Manila waste management as illegal, unconstitutional
and void and to enjoin petitioners from implementing the
Resolution and making another award in lieu thereof.
DISCUSSION
This case is another example where the writ of execution was not
in conformity with the decision. So here, what was subject was a
contract entered into by the Republic and Jancom, there was a case
in relation to that contract subsequently, it reached the Supreme
Court but all of them, the RTC, CA and SC declared the contract valid
and perfected. Although ineffective and unimplementable pending
192
approval by the president. Now, in the execution of that decision,
the tenor of the RTC directed parties to comply with the terms of
the contract so that was the only tenor of the order of execution,
would that be valid? In that case, the writ of execution, the order
of execution already modified or varied the tenor of the judgement
sought to be implemented, because in the judgement, there is a
condition pending approval of the president so the contract was
valid and perfected although pending approval of the president, it
was still ineffective and unimplementable. Now, in the order of
execution, the condition was gone, it became a pure and simple
obligation to comply with the contract. So, this is not allowed, the
order is null and void.
Continuation..
The RTC and the Court of Appeals both ruled in favor of JANCOM.
The Supreme Court affirmed the CA Decision and declared the
contract valid and perfected, albeit ineffective and
unimplementable pending approval by the President.
Upon motion, the RTC issued an order directing the parties to
faithfully comply with the terms of the contract.
Issue: Is the order of execution valid?
Ruling: In issuing the writ of execution, the trial court in effect
ordered the enforcement of the contract despite the High Court's
unequivocal pronouncement that albeit valid and perfected, the
contract shall become effective only upon approval by the
President. Indubitably, the alias writ of execution varied the tenor
of this Court's judgment, went against essential portions and
exceeded the terms thereof. The execution directed by the trial
court being out of harmony with the judgment, legal implications
cannot save it from being found to be fatally defective.
Q: WHEN A WRIT OF EXECUTION IS ISSUED AGAINST WHOM
EXECUTION IS IT ISSUED?
A: General rule: To the losing party.
Q: How about if the losing party is not around or he had someone
live in his property to defeat the execution?
A: The judgement as well as the execution will apply to the party
himself, to his successors in interest and those persons who derive
their rights from him.
How about for example recovery of possession in a parcel of land
and then the case was filed against the registered owner of the land
but in the meantime, there was someone who bought the land. And
then upon the execution of that judgement where the defendant,
the registered owner, is ordered by the court to deliver possession
of the land to the plaintiff and when the sheriff went to the land,
someone else already lived in the property and not the registered
owner, then the persons in possession alleged that they are
innocent purchasers for value.
Q: Are they bound by the decision? Can the writ of execution be
also enforced against them?
A:
Now the law on land registration will also apply because if for
example the sale happened and then in the title over the land, there
was an annotation of notice of lis pendens, the buyers are bound
by the decision of the court.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
The buyers cannot alleged that they are innocent buyers for value
because by the annotation of the notice of lis pendens, they are
aware and are notified of the fact that the land is under litigation,
it means that they are taking the risk, when they bought the land.
But for example, there was no annotation in the title, the possessor
of the land may raise that he really is an innocent purchaser for
value. Would the decision be binding against that person, the
innocent purchaser for value? No, because under the land
registration one is charge only of notice of liens of encumbrances
which appear on the title. And even in the law on jurisdiction, if you
are not summoned in the case, you did not voluntarily appear in the
case, you were not impleaded in the case, the court does not
acquire jurisdiction over your person.
The Court cannot enforce a judgment against you because it will
violate your right to due process. You will be deprived of your
property without an opportunity to be heard.
No person shall be deprived of life, liberty, and property without
due process of law. You are entitled in your day in court.
How about if you are a successor in interest, the rights of the seller,
that successor in interest merely steps into the shoes of the seller.
No, because we are talking here of the application of the land
registration law, there are possible defenses which can only be
raised by him, which cannot be even raised by the seller in that case
who is the defendant in the case for recovery of possession.
Again, the defense that he is an innocent purchaser for value, can
only be his defense. So if he is not given his day in the court and not
impleaded in the case, he cannot raise that defense. He was not
heard at all on that defense. So, he cannot be deprived of that
property without having his day in court.
Again, general rule, only against the losing party or his successors
in interest, or his privy, those who derive their rights from him.
AGAINST WHOM EXECUTION SHALL ISSUE
Generally, execution can issue only against a (losing) party to the
case and not against one who is a complete stranger because
majority of judgments are in personam. They are only enforceable
against the parties themselves or their successors-in-interest –
people who derive their rights from him. A judgment can never be
enforced against a complete stranger who never had his day in
court (Cruzcosa vs. Concepcion, 101 Phil.146; Castañeda vs. De
Leon, 55 O.G. 625, Jan.26, 1959; Bacolod vs. Enriquez, Dec. 21,
1959).
COMPULSORY EXECUTION
Execution is a matter of right upon the expiration of the period to
appeal and no appeal was perfected from a judgment or order that
disposes of the action or proceeding (Sec. 1, Rule 39, Rules of
Court). Once a judgment becomes final and executory, the
prevailing party can have it executed as a matter of right, and the
issuance of a writ of execution becomes the ministerial duty of the
court (BUAYA vs. STRONGHOLD INSURANCE CO., INC., 342 SCRA
576).
In section 1 execution becomes a matter of right. It now is a
ministerial duty of the court. Once there is a motion for the
issuance of a writ of execution to order the execution of the
judgement in the case.
193
Note: Always be reminded that there must be a motion. The cannot
on its own issue a writ of execution, there must be a motion.
Because what if the prevailing party is no longer interested to
enforce to judgement.
Section 1 is not the only instance, there are other instances or cases
scattered under the Rules of Court.
First, we have, Section 1 par. 1 of Rule 39, when the judgement has
become final and there is no appeal.
In Section 1 par. 2 there is an appeal but the appeal was resolved
then that decision resolving the appeal became final.
Under Section 4, in actions for injunction, receivership, accounting,
support, where the rule states that the judgment is immediately
executory.
Take note, when the law or the rules says “immediately executory”
it does not mean final and executory. Final and executory is
different from immediately executory.
When we say final, the case is already finish, there is no appeal. It
has already been entered in the book of judgement. It is final.
When we say immediately executory, it is not yet final. It can be on
appeal, but it can be immediately implemented.
In Rule 70, under the summary rules. Forcible Entry and Unlawful
Detainer cases, the judgements are immediately executory,
although you appealed the case, the prevailing party can already
execute this.
In small claims the decision are final and unappealable. So we
discuss here, even if it say unappealable still it can be assailed under
Rule 65 Certiorari, if there is grave abuse of discretion amounting
to lack or excess of jurisdiction.
Decisions or judgements involving these cases, we say that the
execution is compulsory because the rule says immediately
executory. Unless in summary rules the other party can counter
bond to stop the execution but that is another story.
COMPULSORY EXECUTION
When is execution a matter of right? In the following cases:
1. Section 1, paragraph 1 – no appeal; judgment becomes
final;
2. Section 1, paragraph 2 – there is an appeal; once the CA
judgment becomes final;
3. Section 4 – Judgment in an action for injunction,
receivership, accounting, support, judgment declared to
be immediately executory;
4. Rule 70 and under Summary Rules – Judgments in
Forcible Entry and Unlawful Detainer cases. With respect
to Rule 70, take note that immediate execution is
warranted but it can be stayed;
5. Small Claims – the decision shall final and unappealable.
 CIVIL PROCEDURE 194
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

NO NEED FOR JUDICIAL DECLARATION OF FINALITY So when we say Mandamus, the Court has no discretion whether
• Judgments and orders become final and executory by to approve or disapprove. Once it is ask for by the prevailing party,
operation of law and not by judicial declaration. The trial and the Rule says that is it immediately executory, the Court has no
court need not even pronounce the finality of the order other option but to grant that writ of execution.
as the same becomes final by operation of law. Once the
appeal period expires without an appeal or a motion for That is the essence of Mandamus, to compel the court to do that
reconsideration or new trial being perfected, the decision which the rule or the law requires him to perform as a ministerial
duty.
or order becomes final. (TESTATE OF MARIA MANUEL
VDA. DE BIASCAN vs. BIASCAN, 374 SCRA 621,
WHAT IS A WRIT OF MANDAMUS?
RODRIGUEZ vs. ROBLES, G.R. No. 182645, December 4,
NATIONAL HOME MORTGAGE FINANCE CORPORATION vs.
2009) ABAYARI, ET AL. (G.R. No. 166508, October 2, 2009)
• Its finality becomes a fact when the reglementary period
To begin with, a writ of mandamus is a command issuing from a
for appeal lapses, and no appeal is perfected within such
court of law of competent jurisdiction, in the name of the state or
period (VLASON ENTERPRISES VS. COURT OF APPEALS, sovereign, directed to an inferior court, tribunal, or board, or to
310 SCRA 26). some corporation or person, requiring the performance of a
particular duty therein specified, which duty results from the
If execution is a matter of right and then the duty of the Court to
official station of the party to whom the writ is directed, or from
issue a writ of execution is ministerial, but then the Court without
operation of law. It is employed to compel the performance, when
any justifiable reason refuses to issue the writ of execution. What
refused, of a ministerial duty which, as opposed to a discretionary
is the remedy of the party? Who was aggrieved by that refusal of
one, is that which an officer or tribunal performs in a given state
the Court?
of facts, in a prescribed manner, in obedience to the mandate of
legal authority, without regard to or the exercise of his or its own
The remedy here is to file a petition for Mandamus, as discuss in
judgment upon the propriety or impropriety of the act done.
these cases of VALDEZ vs. FINANCIERA MANILA and SIA vs.
VILLANUEVA.
There are instances even when the judgement has already become
final and executory, it can no longer be enforced. The Court may
BEING A MINISTERIAL DUTY, THE REMEDY TO COMPEL
refuse to have the judgement executed.
EXECUTION IS MANDAMUS
The issuance of a writ of execution of a final and executory
Q: What are these instances?
judgment is the court’s ministerial duty enforceable by mandamus.
A: First, When the judgment has already been executed by the
The same principle applies to a judgment upon a compromise
voluntary compliance thereof by the parties.
which is based on a compromise agreement between the parties
(VALDEZ vs. FINANCIERA MANILA, G.R. No. 183387, September 29,
For example, the judgement says that the debtor should pay 1
2009).
million and then prior to that there was a compromise agreement,
because compromise agreement can actually be entered into even
After a final judgment has been rendered by the Supreme Court, or
after final judgement.
even by a trial court for that matter, it is the duty of the court to
enforce the judgment according to its terms. In other words, where
So the debtor went to the creditor and ask that he will only pay
the judgment of an appellate court has become final and executory
950,000, and the creditor acceded and entered it into writing.
and is returned to the lower court, the only function of the latter is
the ministerial act of carrying out the decision and issuing the writ
If the Court would see that there is already a settlement, then there
of execution (SIA vs. VILLANUEVA, G.R. No. 152921, October 9,
is no need for the execution, otherwise it would result to unjust
2006).
enrichment on the part of the prevailing party, because it was
already executed.
Q: What is Mandamus?
A: That is explained in the case of NATIONAL HOME MORTGAGE
Second, novation, When the judgment has been novated by the
FINANCE CORPORATION vs. ABAYARI.
parties. The parties, despite the existence of a judgment, are at
liberty to novate a judgment by entering into a compromise.
A writ of mandamus is a command issuing from a court of law of
competent jurisdiction, in the name of the state or sovereign,
Novation is also a mode of extinguishing an obligation. In a
directed to an inferior court, tribunal, or board, or to some
novation, there is an old obligation which is valid, and the parties
corporation or person, requiring the performance of a particular
entered a new obligation, and that new obligation extinguishes the
duty therein specified, which duty results from the official station of
old one.
the party to whom the writ is directed, or from operation of law. It
Again, judgement of the court says that debtor will pay 1 million to
is employed to compel the performance, when refused, of a
the creditor. Prior to the execution the debtor went to the creditor
ministerial duty which, as opposed to a discretionary one, is that
and they agreed that instead of 1 million the debtor would give his
which an officer or tribunal performs in a given state of facts, in a
car to the creditor, this is a case of dation in payment, which is also
prescribed manner, in obedience to the mandate of legal authority,
a form of novation.
without regard to or the exercise of his or its own judgment upon
the propriety or impropriety of the act done.
So, the agreement, that the debtor will deliver the car to the
creditor, novated the obligation of the debtor to pay 1 million
This is in Rule 65 of the Rules of Court.
pursuant to the judgement of the court.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
The obligation under the judgement is extinguished by the new
obligation to deliver the car.
In that case, the creditor who is also the prevailing party in the case
can no longer implement the judgement of the court which was
novated by the agreement of the parties.
The law does not prohibit the parties from entering into these
compromise agreement and novation even if there is already a final
and executory decision.
INSTANCES WHEN EXECUTION MAY BE DENIED
After a judgment has become final and executory, the rule is that
execution becomes the ministerial duty of the court (FIDELDIA vs.
SONGCUAN, 465 SCRA 218). The rule however, is far from absolute.
The trial court may refuse to have the judgment executed in certain
cases, as:
a) When the judgment has already been executed by the voluntary
compliance thereof by the parties (CUNANAN vs. COURT OF
APPEALS, 25 SCRA 263). There is no need for execution in this case
because the judgment has already been satisfied by the voluntary
act of the parties. This is a situation where there is a satisfaction of
the judgment without need for its execution by the court.
b) When the judgment has been novated by the parties (FUA CAM
LU vs. YAP FAUCO, 74 Phil. 287; DORMITORIO vs. FERNANDEZ, G.R.
No. L-25897, August 21, 1976). The parties, despite the existence of
a judgment, are at liberty to novate a judgment by entering into a
compromise.
Third, When a petition for relief is filed and a preliminary injunction
is granted in accordance with Sec. 5 of Rule 38; Also when the
higher court issues a writ of preliminary injunction or a temporary
restraining order for the suspension of the execution of the
judgement.
Fourth, When the judgment sought to be executed is conditional
or when the judgment sought to be executed is incomplete because
as we discussed, these judgements are null and void.
Fifth, When facts and circumstances transpire which would render
execution inequitable or unjust, this is what we call the supervening
events, which would render execution inequitable or unjust.
c) When a petition for relief is filed and a preliminary injunction is
granted in accordance with Sec. 5 of Rule 38; Also when execution
of the judgment is enjoined by a higher court;
d) When the judgment sought to be executed is conditional (Co-
Unjieng vs. Hijos Mabalacat Sugar Company, 70 Phil. 605) or when
the judgment sought to be executed is incomplete (Del Rosario vs.
Villegas, 49 Phil. 634, Ignacio us. Hilarion, 76 Phil. 605);
e) When facts and circumstances transpire which would render
execution inequitable or unjust (Bachrach Corporation us. Court of
Appeals, 296 SCRA 487);
f) The execution is sought more than 5 years from its entry of
judgement. Why? Because here if it's more than 5 years, what you
do is file an independent action for revival of judgement.
195
The motion for execution can only be done within 5 years from the
time of entry of judgement. (When execution is sought more than
five (5) years from its entry without the judgment having been
revived (Cunanan vs. Court of Appeals, supra);
g) When execution is sought against property exempt from
execution under Sec. 13 of Rule 39 or,
h) When refusal to execute the judgment has become imperative
in the higher interest of justice. (Philippine Veterans Bank us.
Intermediate Appellate Court, 78 SCRA 645; vs. Court of
Appeals G. R. No. 138869, August 29, 2002).
These are the instances which are also explained in the subsequent
slides more exhaustively, despite the fact that execution is a
ministerial of the Court, but in these cases the Court can refuse to
issue an order of execution.
HOW COMPULSORY EXECUTION SHALL ISSUE?
What are the conditions for compulsory execution? The following
are the conditions:
1) The judgment must be one that fully disposes of the
action or proceeding; and
2) The period to appeal has expired and no appeal has been
taken from the judgment.
Thus, execution will not issue pursuant to an interlocutory
judgment or order. Also, the prevailing party must wait for the
period to appeal to expire before he can move for execution. The
timely filing of an appeal, or a motion for new trial or
reconsideration for that matter, effectively prevents a judgment
from becoming final and executory.
NECESSITY OF A MOTION
Execution shall issue ON MOTION as clearly set forth under Sec. 1
of Rule 39. There is therefore, a need to file a motion for the
issuance of a writ of execution.
In LOU vs. SIAPNO, 335 SCRA 181, it was ruled that even in
judgments which are immediately executory, "there must be a
motion to that effect and a hearing called for the purpose." Also,
'"under Supreme Court Circular No. 24-94, a motion for the
issuance of a writ of execution must contain a notice to the adverse
party" (PALLADA vs. REGIONAL TRIAL COURT OF KALIBO, AKLAN,
BR. I, 304 SCRA 440).
A motion for the issuance of a writ of execution shall contain a
notice to the adverse party. A motion which does not contain a
notice of hearing of the time and place for the hearing of the
motion as required by Secs. 4 and 5 of Rule 15 of the Rules of Court,
is a worthless piece of paper which the clerk has no right to receive
and which the court has no authority to act upon (PALLADA vs.
REGIONAL TRIAL COURT OF KALIBO, AKLAN, BR. I, 304 SCRA 440).
WHERE TO FILE MOTION
Execution shall be applied for in the court of origin. If an appeal has
been duly perfected and finally resolved, the execution may be
applied for also in the court of origin on motion of the judgment
obligee (Sec. 1, Rule 39, Rules of Court).
In filing a motion for execution of an appealed decision, there is no
need to wait for the records of the case to be remanded to the court
of origin. All that is required is for the appeal to have been duly
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
perfected and finally resolved before execution may be applied for
(BERGONIA vs. DECANO, 317 SCRA 660).
This is because when the judgment obligee files a motion for
execution in the court of origin, all he has to do is to attach the
certified true copies of (a) the judgment of the appellate court, and
(b) the entry of the said judgment (Sec. 1, Rule 39, Rules of Court)
even if the records have not as yet been remanded to the court of
origin. This procedure prevents needless delays in the execution of
the judgment.
If for whatever reason, execution cannot be had with dispatch in
the court of origin, the new rules likewise afford the judgment
obligee a remedy. He may file a motion with the appellate court to
direct the court of origin, in the interest of justice, to issue the writ
of execution (Sec. 1, Rule 39, Rules of Court).
IS AN ORDER OF EXECUTION APPEALABLE?
While it may be argued that an order of execution is in essence a
final order, the order may not be appealed from by express
provisions of the Rules. A party desiring to assail an order of
execution may instead file an appropriate special civil action under
Rule 65 of the Rules of Court (Sec. 1, Rule 41, Rules of Court).
A & C MINIMART CORPORATION vs. PATRICIA S. VILLAREAL,
ET AL. (G.R. No. 172268, October 10, 2007)
Petitioner avers that the respondents should have filed with the
Court of Appeals an ordinary appeal instead of a special civil
action for certiorari, when it questioned the computation made
by the Parañaque RTC, Branch 194, of the rentals due the owner
of the subject property.
Such contention runs counter to Section 1, Rule 41 of the Rules
of Court, which provides:
Section 1. Subject of appeal. – An appeal may be taken from a
judgment or final order that completely disposes of the case, or
of a particular matter therein when declared by these Rules to
be appealable.
No appeal may be taken from:
xxxx
(f) an order of execution;
xxxx
In all the above instances where the judgment or final order is
not appealable, the aggrieved party may file an appropriate
special civil action under Rule 65.
It is explicit from the afore-quoted provision that no appeal may
be taken from an order of execution; instead, such order may be
challenged by the aggrieved party via a special civil action for
certiorari under Rule 65 of the Rules of Court.
GROUNDS THAT MAY BE CITED TO CORRECT AN ERRONEOUS
EXECUTION (GROUNDS FOR QUASHAL OF THE WRIT)
• Distinguish from denial of the writ
What are the grounds that the defeated party may raise in order to
oppose an erroneous execution?
196
Let’s discuss first the process. The court now issues a decision.
Then, because there is no motion for reconsideration, motion for
new trial, or appeal, the judgment became final and executory. Or
even if there is an appeal and it was eventually resolved and the
judgment became final and executory. The prevailing party now
files for a motion for the issuance of a writ of execution. Now, you,
as a defeated party has a ground why not to issue the writ of
execution. What are those grounds that you can use? We discussed
before what the reasons are where the court can refuse the
issuance of the writ of execution. Actually, some of these grounds
are also available to be used in your opposition to the motion for
the issuance of the writ of execution. Here, you are seeking the
denial of the writ of execution by filing an opposition to the
issuance of the writ of execution. Now, the court granted the
motion and ordered the issuance of the writ of execution. As the
losing party, because you really have a ground why the court should
not issue the writ of execution, what do you do? You can now file a
motion to quash the writ of execution.
This is different with that of the opposition. Because in opposition,
you file that before the court grants the motion for writ of
execution. You want the court to deny the issuance of the writ of
execution. On the other hand, the writ of execution has been
granted and you want the court to quash the writ of execution.
What are these grounds? Again, the grounds you have for your
opposition can still be used for your motion to quash the writ of
execution.
GREATER METROPOLITAN MANILA SOLID WASTE
MANAGEMENT COMMITTEE vs. JANCOM ENVIRONMENTAL
CORPORATION
June 30, 2006
There are instances, however, when an error may be committed
in the course of execution proceedings prejudicial to the rights of
a party. These instances call for correction by a superior court,
as where:
1) the writ of execution varies the judgment;
2) there has been a change in the situation of the parties
making execution inequitable or unjust;
3) execution is sought to be enforced against property
exempt from execution;
4) it appears that the controversy has never been
submitted to the judgment of the court;
5) the terms of the judgment are not clear enough and
there remains room for interpretation thereof; or
6) it appears that the writ of execution has been
improvidently issued, or that it is defective in
substance, or is issued against the wrong party, or that
the judgment debt has been paid or otherwise
satisfied, or the writ was issued without authority.
CHANGE IN SITUATION:
THE SUPERVENING FACT DOCTRINE
One of the more important exceptions is when there has been a
change in the situation of the parties which make the execution
inequitable. Stated otherwise, execution will be stayed or set aside
if there has been a SUPERVENING EVENT which makes execution
inequitable.
DISCUSSION
The most famous ground to oppose or to quash a writ of execution
would be this supervening fact doctrine. Under this doctrine, after
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
the judgment became final and executory there had been a change
in the situation of the parties which make the execution inequitable
and unjust. Because of this situation, it would be fair and just for
the court to stay or set aside the execution of the decision. In the
next succeeding slides, I have here illustrations of the supervening
fact doctrine. These examples are very clear. Please read these
examples.
EXAMPLE:
A filed a case to eject B from his property. Judgment was rendered
ordering B to vacate the property of A. But while the case was going
on, A mortgaged his property to the bank. In the meantime, he
failed to pay his loan and the bank foreclosed the mortgage. So the
property was sold at public auction. And at the auction sale, B, the
one occupying it, bought the property. The owner now is B. But
there is a final judgment ejecting him. Now, shall we insist on the
judgment ejecting B? No because B is now the owner. The fact that
B became the owner is a supervening event.
Another example:
PHIL. VETERANS BANK v. IAC
178 SCRA 645
The placement of the bank under receivership is a
SUPERVENING EVENT.
Once a decision has become final and executory, it is the
ministerial duty of the court to order its execution, admits
certain exceptions. The fact that petitioner is placed under
receivership is a supervening event that renders a judgment
notwithstanding its finality unenforceable by attachment or
execution.
When a bank is under receivership, all its assets have to be
preserved. No assets will be sold or disposed of.
SAMPAGUITA GARMENTS CORP. v. NLRC
233 SCRA 260
FACTS:
An employee was terminated by his employer on the ground of
theft. He stole company property. The management filed also a
case of theft against the employee. But in the meantime, the
employee also filed a labor case against the employer for illegal
dismissal and prayed for reinstatement with back wages. After
hearing, the NLRC ruled that there was illegal termination and
ordered the reinstatement of the employee and payment of
backwages. The NLRC decision became final. In the meantime,
the accused was convicted in the criminal case for theft.
ISSUE:
Whether or not the order of reinstatement should still be
executed.
RULING:
An employee’s conviction for theft, which was affirmed by the
RTC and the CA, is a SUPERVENING CAUSE that renders unjust
and inequitable the NLRC decision mandating the employee’s
reinstatement with backwages.
DISCUSSION
For the doctrine to apply, the supervening event must happen after
the judgment has become final and executory and not while the
case is still being heard. Why? If the case is still being heard and an
197
event supervene which would make a prospectively adverse
judgment inequitable, it is the duty of the party who stands to be
prejudiced to bring it to the attention of the court so that the court
deciding the case would take that into consideration. So, after the
decision has become final and executory.
Thus, in the case of:
VALENZONA v. COURT OF APPEALS
G.R. No. 106895 | September 10, 1993 | 226 SCRA 36
While the rule is that a stay of execution of a final judgment may
be authorized if necessary to accomplish the ends of justice, as
for instance, where there has been a change in the situation of
the parties which makes such execution inequitable,
nevertheless the said rule cannot be invoked when the
supposed change in the circumstances of the parties took place
while the case was pending, for the reason that there was then
no excuse for not bringing to the attention of the court the fact
or circumstance that affects the outcome of the case.
NOVATION BY SUBSEQUENT AGREEMENT
Q: Can the parties enter into a compromise agreement when there
is already a decision?
A: YES. Compromise agreement is always encouraged – before the
case is filed, while the case is going on and even while the case is
on appeal.
Thus, in case a judgment is rendered but before it is executed, the
parties entered into an agreement to settle the case amicably, the
compromise forged between them effectively supersedes and
novates the judgment.
The principle to remember with respect to novation is that there
must be an incompatibility between the first obligation and the
second. Novation can either be modificatory or extinctive.
SECOND AND LAST PARAGRAPHS OF SECTION 1
Section 1. Execution upon judgments or final orders. – xxx
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 judgment obligee, submitting therewith certified
true copies of the judgment or judgments or final order or
orders sought to be enforced and of the entry thereof, with
notice to the adverse party.
The appellate court may, on motion in the same case, when the
interest of justice so requires, direct the court of origin to issue
the writ of execution. (n)
DISCUSSION
The second paragraph covers a situation where the judgment was
appealed so it did not become final and executory at first instance
in the court of origin. However, the appeal was already resolved
with finality in favor of the judgment obligee or prevailing party.
The prevailing party needs only to file a motion, with notice, in the
court of origin and to present certified true copies of the judgment
by the appellate court. The judgment obligee need not wait for the
records of the case on appeal to be transmitted back to the court
of origin.
Another way is under the last paragraph which allows the prevailing
party to file a motion for the appellate court to direct the court of
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
origin to issue the writ of execution. Take note that when this
motion is filed, the judgment on appeal is already final and
executory. The power thus given to the appellate court to approve
such motion is akin to an exercise of residual jurisdiction.
DUTY OF SHERIFF
Who implements the writ of execution? Is it the judge? No, it’s not,
although the authority comes from the judge. The person who
actually goes to the field to implement the decision is the sheriff.
Of course, same with the judge, the implementation of the writ of
execution is ministerial on the part of the sheriff. He has to execute
the order of the court strictly—to the letter. If the sheriff won’t
follow the order, he could be charged administratively. The position
of the sheriff in the implementation is actually crucial, because if
the sheriff fails to execute the order, he can be pursued by the
prevailing party. If the sheriff would execute the order and the
defeated party would allege that the execution was improper or not
to the letter, the defeated party could pursue the sheriff. Thus, the
sheriff must be careful in the implementation of the writ of
execution.
Well-settled is the rule that a sheriff’s duty in the execution of the
writ is purely ministerial; he is to execute the order of the court
strictly to the letter. He has no discretion whether to execute the
judgment or not. When a writ is placed in the hands of the sheriff,
it is his duty, in the absence of any instructions to the contrary, to
proceed with reasonable celerity and promptness to implement it
in accordance with its mandate. It is only by doing so that he could
ensure that the order is executed without undue delay. It cannot
be overemphasized that sheriffs play an important part in the
administration of justice, because they are tasked to execute the
final judgments of courts. If not enforced, such decisions are empty
victories on the part of the prevailing parties. Indeed, the execution
of a final judgment is "the fruit and end of the suit and is the life of
the law" (CEBU INTERNATIONAL FINANCE CORPORATION vs.
CABIGON, February 14, 2007).
DISCRETIONARY EXECUTION
Section 2. Discretionary execution. –
(a) Execution of a judgment or final order pending appeal. – On
motion of the prevailing party with notice to the adverse party
filed in the trial court while it has jurisdiction over the case and
is in possession of either the original record or the record on
appeal, as the case may be, at the time of the filing of such
motion, said court may, in its discretion, order execution of a
judgment or final order even before the expiration of the period
to appeal.
After the trial court has lost jurisdiction, the motion for
execution pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be
stated in a special order after due hearing.
(b) Execution of several, separate or partial judgments. – A
several, separate or partial judgment may be executed under
the same terms and conditions as execution of a judgment or
final order pending appeal. (2a)
198
DISCUSSION
Here, the judgment sought to be implemented or executed is not
yet final and executory. It depends upon the court whether or not
to issue the execution.
HOW, WHERE, AND WHEN TO FILE
How: On motion of the prevailing party with notice to the adverse
party filed in the trial court upon “good reason”.
We have to follow the rule on motions: the motion must be in
writing; copy furnished with notice to the adverse party; you also
have to cite your “good reason” why you want the judgment to be
implemented.
WHEN DOES THE COURT LOSE JURISDICTION OVER THE CASE?
With regard to execution pending appeal, you can correlate this
with RULE 41, SECTION 9, to wit:
Rule 41, Section 9. Perfection of appeal; effect thereof. — A
party's appeal by notice of appeal is deemed perfected as to him
upon the filing of the notice of appeal in due time.
A party's appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over
the case upon the perfection of the appeals filed in due time and
the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only
over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the
appeal of the other parties.
In either case, prior to the transmittal of the original record or
the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with Section 2 of Rule
39, and allow withdrawal of the appeal. (9a)
REQUISITES OF DISCRETIONARY EXECUTION
The following are the requisites for discretionary execution:
1. There must be a motion filed by the prevailing party with
notice to the adverse party;
2. There must be a hearing of the motion for discretionary
execution;
3. There must be good reasons to justify the discretionary
execution; and
4. The good reasons must be stated in a special order
(GEOLISTICS INC. vs. CATEWEY ELECTRONICS, G.R. Nos.
174256-57, March 25, 2009).
The court may or may not grant the execution depending on
whether there is a good reason or no good reason.
Unlike in Section 1, when the judgment has become final and
executory, you do not have to cite any good reason. The only
reason for the execution is that the judgment becomes final and
executory.
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From the Discussion of Atty. Jess Zachael Espejo
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But in the case of execution pending appeal, you must justify it –
the party must convince the court to grant the execution. According
to the SC, execution under Section 2 is the exception rather than
the general rule.
DISCUSSION
The motion must be in writing. There must be a hearing of the
motion because that is expressly provided by Rule 39. If you
remember Rule 15 Section 5, it is one of the motions which is
considered litigious.
Unlike execution as a matter of right, when you say discretionary
execution, you need good reason. In execution as a matter of right,
you do not need a good reason because it is ministerial, mandatory
that the court shall allow [it] unless there is a ground to deny or
refuse the issuance of writ of execution.
CITY OF BACOLOD vs. ENRIQUEZ
101 Phil. 644
The requirement of good reason is important and must not be
overlooked, because if the judgment is executed and, on appeal,
the same is reversed, although there are provisions for
restitution, oftentimes damages may arise which cannot be fully
compensated. Accordingly, execution should be granted only
when these considerations are clearly outweighed by superior
circumstances demanding urgency, and the above provision
requires a statement of those circumstances as a security for
their existence.
It is even a misnomer – execution pending appeal. For all you
know, the losing party may or may not appeal. It is actually
called execution pending appeal because you are filing the
motion within the period to appeal.
DISCUSSION
The SC explained why there is a requirement of a good reason in
discretionary execution. Why? Because there is still an opportunity
for the other party to appeal. For example, there is an appeal and
the decision was reversed. Here, although there are requirements
for bond; but there are instances when the party who has been
deprived of his property because of an execution pending appeal,
can no longer be fully compensated.
Example in labor cases, this is usually the problem of the employer.
When in the NLRC level, although it can be questioned to CA under
Rule 65 Petition for Certiorari, but the judgment of NLRC is already
final and executory.
Assuming it is only executory, not final. Again it can be reversed by
CA on certiorari. CA can say that the decision of NLRC is null and
void. When it comes to the money claims of employees, if the CA
will not issue TRO or Writ of Preliminary Injunction, the decision of
the NLRC will be executed. The employer has to pay backwages of
the employee based on the decision the NLRC. What if the
backwages amounts to 10 million and it was given to the employee.
Thereafter, the CA set asides the NLRC decision. The 10 million was
already given to the employee, and it was already spent by the
employee. The employee cannot give back the 10 million even if
you bury the employee alive, or chop his body parts. How can you
claim back the 10 million?
199
That is an example even if the rule that says when the decision is
reversed, there will be restitution. But it can also be a theory only
that cannot happen in real life. That is why in Execution Pending
Appeal (EPA), there should be good reason.
When these considerations are clearly outweighed by superior
circumstances demanding urgency… there must be justifiable
reasons why you have to EPA.
The SC said that it is even a misnomer – execution pending appeal
because it is possible that the losing party will not appeal. It is
actually called execution pending appeal because you are filing the
motion within the period to appeal.
INTERPRETATION OF THE RULES
RE: DISCRETIONARY EXECUTION
Discretionary execution is to be strictly construed because it is an
exception to the general rule. It is not meant to be availed of
routinely because it applies only in extraordinary circumstances
(Corona International, Inc., 343 SCRA 512). It should be interpreted
only insofar as the language thereof fairly warrants, and all doubts
should be resolved in favor of the general rule (PLANTERS
PRODUCTS, INC. vs. COURT OF APPEALS, G.R. No. 106052, October
.22, 1999).
Where the execution is not in conformity with the rules, the
execution is null and void (BANGKOK BANK PUBLIC COMPANY
LIMITED vs. LEE, G.R. No. 159806, January 20, 2006).
GOOD REASONS
The existence of good reasons as justifications for discretionary
execution is essential. The good reasons are what confer
discretionary power upon the court to issue a writ of execution
pending appeal (INTRAMUROS TENNIS CLUB, INC. vs. COURT OF
APPEALS, 341 SCRA 90). Certiorari will lie against an order granting
execution pending appeal where the same is not founded upon
good reasons (International School, Inc. Manila vs. Court of
Appeals, 309 SCRA 474).
Sec. 2 of Rule 39 does not cite examples of the good reasons that
would justify a discretionary execution. What constitutes a good
reason therefore, is left to the sound exercise of judicial discretion.
The following, among others, have been given by jurisprudence as
good reasons:
DISCUSSION
What are the good reasons to justify discretionary execution? If you
notice, it is not defined in Section 2 of Rule 39. What constitutes a
good reason is left to the sound exercise of judicial discretion.
What is our guide? Let us go over the decisions rendered by the SC
on examples good reasons.
a) The proven insolvency of the judgment debtor (LAO vs.
MENCIAS, 21 SCRA 1021);
For example you filed a collection case against a debtor, while the
case is pending supposedly, you cannot recover from him. For
example the MTC already rendered a judgment against the debtor
to pay, but he appealed. If the collection suit is on appeal, it is not
immediately executory. But since the debtor is already insolvent,
meaning all the creditors will ask the debtor to pay; insolvency
proceedings will take place. All of his properties which are not
exempt from execution will be sold at a public auction and the
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
proceeds will be distributed to all the creditors, in proportion to
their respective credits.
If you filed a case in MTC and you won in that case, but the losing
party filed an appeal, does that mean that you cannot execute the
judgment in your favor when in fact the other creditors who did not
file a case will receive their proportionate credit. That will be a good
reason for you to ask EPA.
b) The purpose of preventing irreparable injury to the
consumers of an electric cooperative which needs the
amount of the judgment for its operations and the
repair of its transmission lines, electric posts, trans-
formers, accessories, towers, and fixtures within its
coverage area (FORTUNE GUARANTEE AND INSURANCE
CORPORATION vs. COURT OF APPEALS, G.R. No. 110701,
March 12, 2002);
If we wait for the case to end until the final judgment, the
consumers will be in the dark, when supposedly they have won the
case.
c) The fact that the goods subject of the judgment will
perish or deteriorate during the pendency of the appeal,
a fact which would render the judgment in favor of the
prevailing party ineffective (FEDERATION OF UNITED
NAMARCO DISTRIBUTORS, INC. vs. COURT OF APPEALS, 4
SCRA 867; ONG vs. COURT OF APPEALS, 203 SCRA 38);
If we wait for the final judgment, there is a possibility that the car
will not work anymore because it became rusty. Also in cases of
fruits, it will only last for days, perishable.
d) The failure in an unlawful detainer case to make the
required periodic deposits to cover the amount of
rentals due under the contract or for payment of the
reasonable value of the use and occupation of the
premises, or the failure to post a supersedeas bond may
be good reasons to allow execution pending appeal (Sec.
19, Rule 70, Rules of Court).
Example: Ejectment Suit or Unlawful Detainer case, the lessor files
an ejectment suit against the lessee. The lessor won the case but
the lessee appealed the case, and so the lessee is ordered to pay
periodic rentals. Because the lessee did not pay the periodic
rentals, that is a good reason to order EPA. Or the lessee did not
post a supersedeas bond, this bond is filed by the defendant who
lost the case to stay the execution of the judgment.
BAR QUESTION 1995
In an illegal detainer case, the Municipal Trial Court ruled in
favor of the plaintiff-lessor who, not being satisfied with the
increase of rentals granted him by the court, appealed praying
for further increase thereof. Defendant lessee did not appeal.
Can the plaintiff-lessor as appellant, move for execution pending
appeal?
Suggested answer:
He can move for execution pending appeal. To justify the motion
it must be shown that the defendant failed to make the required
periodic deposits to cover the amount of rentals due under the
contract or for payment of the reasonable value of the use and
occupation of the premises, or failed to post a supersedeas bond.
200
These are good reasons to allow execution pending appeal (Sec.
19, Rule 70, Rules of Court).
FRIVOLOUS APPEAL AS REASON FOR DISCRETIONARY EXECUTION
Where the sole reason given by the trial court in disallowing an
appeal is that the appeal is frivolous and dilatory, execution
pending appeal cannot be justified because the authority to
disapprove an appeal pertains to the appellate court. Mere
allegation that the appeal is dilatory is not a good reason to merit
discretionary execution (INTRAMUROS TENNIS CLUB, INC. vs.
COURT OF APPEALS, 341 SCRA 90).
DISCUSSION
In this case, a Motion for EPA was filed. The rule says that there
must be good reasons cited why the court should grant your
Motion for EPA. The good reason cited by the movant was that the
appeal was frivolous and dilatory, meaning that the appeal should
not have been filed in the first place because it was meant to delay
the case. Was that a good reason to allow motion for EPA? NO.
The Motion for EPA was filed in the court of origin. The SC said that
it is not a good reason. The trial court does not even have the
authority to determine whether the appeal is frivolous or dilatory.
Being the court of origin, its decision was the subject of appeal. The
proper authority to determine whether the appeal is dilatory and
frivolous is the appellate court. The authority of the court of origin
after it has rendered a decision and was appealed, and the appeal
is filed on time, is to elevate the records of the case to the appellate
court. In this case, if there is residual jurisdiction, it can also order
EPA, but based on good reason .In this case, it is not a good reason,
there must be a different good reason which will not deal with the
merits of the appeal. The merits of the appeal is for the appellate
court to determine.
The rule has been subsequently reiterated in a case of relatively
recent vintage. The Court stressed that the trial court is not justified
to order execution pending appeal, on its assertion that the appeal
of the respondent is a dilatory tactic. It is not for the trial judge to
determine the merit of a decision he rendered as this is the role of
the appellate court. Hence, it is not within the competence of the
trial court, in resolving a motion for execution pending appeal, to
rule that the appeal is patently dilatory and rely on the same as
basis for finding good reasons to grant the motion. Only an
appellate court can appreciate the dilatory intent of an appeal as
an additional good reason in upholding an order for execution
pending appeal (SANGKAY vs. NATIONAL POWER CORPORATION,
G.R. No. 141447, May 4, 2006).
POSTING OF BOND AS REASON FOR DISCRETIONARY EXECUTION
(BAR 1991)
Q: How about if the moving party, is willing to post bond by reason
of the execution pending appeal or discretionary execution?
Would that be a good reason?
A: The rule is now settled that the mere filing of a bond by the
successful party is not in itself a good reason for order-ing
execution pending appeal, because it is the combination of
circumstances which is the dominating reason that would jus-tify
immediate execution, the bond being ONLY AN ADDITIONAL
FACTOR (INTRAMUROS TENNIS CLUB, INC. vs. COURT OF APPEALS,
341 SCRA 90).
The Supreme Court also stated in the case of Roxas v. Court of
Appeals that, if the mere posting of a bond is sufficient to justify
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
immediate execution pending appeal, judgments would be
ex-ecuted immediately, as a matter of course, once rendered, if all
that the prevailing party needed was to post a bond. Im-mediate
execution will then become the general rule rather than the
exception (ROXAS vs. COURT OF APPEALS, 167 SCRA 370;
STRONGHOLD LNSURANCE CO., INC. vs. COURT OF APPEALS, 179
SCRA 117).
In that case, any person would be ready and capable of posting
bond would secure execution pending appeal and in that case,
execution would be a matter of course, it will no longer be
discretionary. Immediate execution will then become the general
rule rather than the exception.
FINANCIAL DISTRESS AS REASON FOR DISCRETIONARY
EXECUTION
Q: How about Financial Distress?
A: The fact that the prevailing party is in financial distress is also not
in itself a good reason to justify execution pending appeal
(INTRAMUROS TENNIS CLUB, INC. vs. COURT OF APPEALS, 341 SCRA
90).
(b) Execution of several, separate or partial judgments. — A
several, separate or partial judgment may be executed under the
same terms and conditions as execution of a judgment or final
order pending appeal.
Let us correlate this provision with Rule 36, Sections 4 and 5 and
Rule 37, Section 8:
RULE 36, Sec. 4. Several judgments. - In an action against
several defendants, the court may, when a several judgment is
proper, render judgment against one or more of them, leaving
the action to proceed against the others. (4)
RULE 36, Sec. 5. Separate judgments. - When more than one
claim for relief is presented in an action, the court, at any stage,
upon a determination of the issues material to a particular claim
and all counterclaims arising out of the transaction or
occurrence which is the subject matter of the claim, may render
a separate judgment disposing of such claim. The judgment shall
terminate the action with respect to the claim so disposed of
and the action shall proceed as to the remaining claims. In case
a separate judgment is rendered, the court by order may stay
its enforcement until the rendition of a subsequent judgment or
judgments and may prescribe such conditions as may be
necessary to secure the benefit thereof to the party in whose
favor the judgment is rendered. (5a)
RULE 37, Sec. 8. Effect of order for partial new trial. - When less
than all of the issues are ordered retried, the court may either
enter a judgment or final order as to the rest, or stay the
enforcement of such judgment or final order until after the new
trial. (7a)
DISCUSSION
We are dealing here with judgment that could be partial or
separate judgment. Now what are the possibilities here?
The court can resolve and can issue a judgment regarding certain
issues while the other issues are still pending. Now if the court says
that it will stay the enforcement of a judgment and will wait for the
201
resolution of the other issues. Then that judgment is not subject to
appeal. You cannot even ask for discretionary appeal because the
court has decided to stay the enforcement of these judgments.
Now if the court did not say that these partial judgments shall be
stayed prior to the resolution of these other issues, then those
judgments already issued by the court, they can be subject to
discretionary execution, following the rule in Rule 39. So we need
good reasons, and they must be filed of course within the period
within which to appeal while the court has jurisdiction over the
case.
WHAT DAMAGES MAY BE EXECUTED PENDING APPEAL?
RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. v.
LANTIN
G.R. No. L-59311 | January 31, 1985
Only Actual Damages
The execution of any award for moral and exemplary damages
is dependent on the outcome of the main case. Unlike actual
damages for which the petitioners may clearly be held liable if
they breach a specific contract and the amounts of which are
fixed and certain, liabilities with respect to moral and exemplary
damages as well as the exact amounts remain uncertain and
indefinite pending resolution by the Intermediate Appellate
Court and eventually the Supreme Court.
The existence of the factual bases of these types of damages and
their causal relation to the petitioners’ act will have to be
determined in the light of the assignments of errors on appeal.
It is possible that the petitioners, after all, while liable for actual
damages may not be liable for moral damages and exemplary
damages. Or as in some cases elevated to the Supreme Court,
the awards may be reduced.
CASE WHERE DISCRETIONARY EXECUTION IS ALWAYS
DISALLOWED
SPOUSES CURATA v. PHILIPPINE COURTS AUTHORITY
G.R. Nos. 154211-12 | June 22, 2009
The Court rules that discretionary execution of judgments
pending appeal under Sec. 2(a) of Rule 39 does not apply to
eminent domain proceedings.
As early as 1919 in Visayan Refining Co. v. Camus and Paredes,
the Court held:
When the Government is plaintiff the judgment will naturally
take the form of an order merely requiring the payment of the
award as a condition precedent to the transfer of the title, as a
personal judgment against the Government could not be
realized upon execution.
In Commissioner of Public Highways v. San Diego, no less than
the eminent Chief Justice Claudio Teehankee explained the
rationale behind the doctrine that government funds and
properties cannot be seized under a writ of execution, thus:
The universal rule that where the State gives its consent to be
sued by private parties either by general or special law, it may
limit claimant’s action "only up to the completion of proceedings
anterior to the stage of execution" and that the power of the
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Courts ends when the judgment is rendered, since government
funds and properties may not be seized under writs of execution
or garnishment to satisfy such judgments, is based on obvious
considerations of public policy. Disbursements of public funds
must be covered by the corresponding appropriation as
required by law. The functions and public services rendered by
the State cannot be allowed to be paralyzed or disrupted by the
diversion of public funds from their legitimate and specific
objects, as appropriated by law.
Section 3. Stay of discretionary execution. — Discretionary
execution issued under the preceding section may be stayed
upon approval by the proper court of a sufficient supersedeas
bond filed by the party against whom it is directed, conditioned
upon the performance of the judgment or order allowed to be
executed in case it shall be finally sustained in whole or in part.
The bond thus given may be proceeded against on motion with
notice to the surety. (3a )
DISCUSSION
Section 3 is for the benefit of the defeated party. So we are talking
here of a discretionary execution. Meaning the judgment is not yet
final and executory and you want to implement that judgment
while pending appeal.
Q: So how can the defeated party defeat your own motion for
discretionary execution. How can he stop it? So let us put for
example, I won a case, and you lost, and you appealed. While I
was able to file a motion for execution pending appeal, maybe
because I had good reason and I had also posted bond as
additional good reason. How can you stop the execution pending
appeal?
A: By filing a sufficient supersedeas bond. That would be a reason
to stay the discretionary execution.
Q: What is the purpose of the bond?
A: Well, it is conditioned upon the performance of the judgment or
order allowed to be executed in case it shall be finally sustained in
whole or in part.
So, I made a motion for execution pending appeal, you filed a
supersedeas bond, then eventually I won even if you actually
appealed, the appeal was resolved against you. So the bond will
answer for the performance of the judgment. Damages, monetary
claims, all will be taken from the bond. The bond thus given may be
proceeded against on motion with notice to the surety.
HOW TO STAY A DISCRETIONARY EXECUTION?
Suppose that there is an execution pending appeal in favor of the
plaintiff under Section 2 and you are the defendant, is there a way
for you to stop the execution pending appeal?
The remedy is to apply Section 3. The defendant will now ask the
court to fix a supersedeas bond to stop the execution pending
appeal. The bond will answer for any damages that the plaintiff may
suffer if the defendant’s appeal is not meritorious.
Once the supersedeas bond is filed, the court has to withdraw the
execution pending appeal. Supersedeas bond under Section 3 is
conditioned upon the performance of the judgment or order
202
allowed to be executed in case it shall be finally sustained in whole
or in part.
GENERAL RULE: When a defendant puts up a supersedeas bond,
the court shall recall the execution pending appeal because
discretionary execution is the exception rather than the general
rule.
EXCEPTION: Notwithstanding the filing of the supersedeas bond
by the appellant, execution pending appeal may still be granted
by the court IF THERE ARE SPECIAL AND COMPELLING REASONS
justifying the same outweighing the security offered by the
supersedeas bond. (DE LEON vs. SORIANO, 95 Phil. 806)
EXAMPLE OF EXCEPTION: Judgment for SUPPORT. The same
may be executed pending appeal even notwithstanding the
filing of a supersedeas bond by the appellant (DE LEON vs.
SORIANO, 95 Phil. 806). Support is something which should not
be delayed.
“STAY” OF EXECUTION BY MERE OPERATION OF THE RULES
JP LATEX TECHNOLOGY, INC. v. BALLONS GRANGER
BALLOONS, INC., ET AL.
G.R. No. 177121 | March 16, 2009
Discretionary execution is allowed only when the period to
appeal has commenced but before the trial court loses
jurisdiction over the case. The period to appeal where a motion
for reconsideration has been filed as in the instant case
commences only upon the receipt of a copy of the order
disposing of the motion for reconsideration. The pendency of a
motion for reconsideration, therefore, prevents the running of
the period to appeal. In the instant case, petitioner filed a motion
for reconsideration of the RTC decision. The records of the case
show that the motion had NOT been acted upon by the RTC
before it ruled on the motion for execution "pending appeal."
That being the case, the pendency of the motion for
reconsideration has prevented the period to appeal from even
commencing. The period within which a party may move for an
execution pending appeal of the trial court’s decision has not yet
also started.
Where there is a pending motion for reconsideration of the RTC
decision, an order execution pending appeal is improper and
premature. The pendency of the motion for reconsideration
legally precludes execution of the RTC decision because the
motion serves as the movant’s vehicle to point out the findings
and conclusions of the decision which, in his view, are not
supported by law or the evidence and, therefore, gives the trial
judge the occasion to reverse himself. In the event that the trial
judge finds the motion for reconsideration meritorious, he can of
course reverse the decision.
Section 4. Judgments not stayed by appeal. – Judgments in
actions for injunctions, receivership, accounting and support,
and such other judgments as are now or may hereafter be
declared to be immediately executory, shall be enforceable
after their rendition and shall not, be stayed by an appeal taken
therefrom, unless otherwise ordered by the trial court. On
appeal therefrom, the appellate court in its discretion may make
an order suspending, modifying, restoring or granting the the
injunction, receivership, accounting, or award of support.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or
protection of the rights of the adverse party. (4a)
GR: Judgments are declared to be immediately executory. They
shall be enforceable after their rendition and shall not be stayed by
an appeal.
XPN: Unless there is an order from the court that the execution
shall be stayed pending appeal.
RELATED TOPIC
Q: Can one court by injunction or restraining order stop the
execution of a judgment of another court?
GR: NO because that will violate the doctrine of non-interference.
XPN: Enforcement of a final judgment may be stopped by way of
injunction under the following:
1. Rule 38 , Section 5: Preliminary injunction pending
proceedings. – Preliminary injunction pending
proceedings. – The court in which the petition is filed,
may grant such preliminary injunction as may be
necessary for the preservation of the rights of the parties,
upon the filing by the petitioner of a bond in favor of the
adverse party, conditioned that if the petition is dismissed
or the petitioner fails on the trial of the case upon the
merits, he will pay the adverse party all damages and
costs that may be awarded to him by reason of the
issuance of such injunction or the other proceedings
following the petition; but such injunction shall not
operate to discharge or extinguish any lien which the
adverse party may have acquired upon the property of the
petitioner.
DISCUSSION
In effect, there is a final and executory judgment, but the court will
issue an injunction to stop this enforcement because of the
pendency of a petition for relief from judgment.
2. When there is an action for annulment of judgment of the
RTC filed in the CA.
The CA may issue a writ of preliminary injunction – annulment of
judgment, certiorari, or prohibition cases where the CA will issue a
preliminary injunction to stop the RTC from enforcing its judgment
pending the resolution of whether its judgment was rendered in
excess or without jurisdiction.
REMEDY AGAINST EFFECTS OF IMPROVIDENT EXECUTIONS
Section 5. Effects of reversal of executed judgment. – Where
the executed judgment is reversed totally or partially, or
annulled, on appeal or otherwise, the trial court may, on
motion, issue such orders or restitution or reparation of
damages as equity and justice may warrant under the
circumstances. (5a)
ARCHINET INTERNATIONAL, INC. vs. BECCO PHILIPPINES, INC.
G.R. No. 183753, June 19, 2009
In any event, execution pending appeal does not bar the
continuance of the appeal on the merits and respondents are not
left without relief in the event of reversal of the judgment against
it. Section 5, Rule 39 of the Rules of Court specifically provides
203
that where the executed judgment is reversed totally or partially,
or annulled, on appeal or otherwise, the trial court may, on
motion, issue such orders of restitution or reparation of damages
as equity and justice may warrant under the circumstances.
Section 6. Execution by motion or by independent action. — A
final and executory judgment or order may be executed on
motion within five (5) years from the date of its entry. After the
lapse of such time, and before it is barred by the statute of
limitations, a judgment may be enforced by action. The revived
judgment may also be enforced by motion within five (5) years
from the date of its entry and thereafter by action before it is
barred by the statute of limitations. (6a)
DISCUSSION
We discussed this in the beginning of our topic. There are two
ways by which you can ask for execution:
1. By motion – you have to file it within five (5) years from
the time that the judgment became final and executory.
So, it is counted from the date of its entry.
After that, you can only execute by:
2. Independent action – when you say independent action,
actually, it’s like you are filing a new case; you file an
action for revival of judgment
It has a limit: before it is barred by the statute of
limitations
MODES OF EXECUTION OF A JUDGMENT
(BAR 1982; 1987; 1997)
There are two modes of executing a final and executory
judgment, to wit:
a) Execution by motion if the enforcement of
the judgment is sought within five (5) years
from the date of its entry; and
b) Execution by independent action if the five-
year period has elapsed and before it is
barred by the statute of limitations (Sec. 6,
Rule 39, Rules of Court).
A writ of execution issued by motion of the prevailing party after
five (5) years from the date of entry of the judgment is null and
void. There is then a need for the prevailing party to file an
independent action for the revival of the judgment before the
action is barred by the statute of limitations (Tag Fibers, Inc. vs.
NLRC, 344 SCRA. 29; Terry vs. People, 314 SCRA. 669; Bar 2007).
VILLAREAL, JR. vs. METROPOLITAN WATERWORKS
AND SEWERAGE SYSTEM
G.R. No. 232202, February 28, 2018
By jurisprudence, for execution by motion to be valid, the
judgment creditor must ensure the accomplishment of two acts
within the five-year prescriptive period, as follows: (a) the filing
of the motion for the issuance of the writ of execution; and (b)
the court's actual issuance of the writ.
Here, the RTC Decision dated September 27, 2002 became final
and executory on December 15, 2002. By operation of law,
December 15, 2002 is likewise the date of entry of judgment.
Consequently, the five-year prescriptive period for the
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
execution of the RTC decision by mere motion must be reckoned
from December 15, 2002.
DISCUSSION
Please remember, in so far as execution by motion, to be valid, in
this case of Villareal, Jr. v. MWSS, the Supreme Court said that two
acts must be accomplished within the five (5) year prescriptive
period. We’re referring to five (5) years from the time of entry of
judgment.
First, you have to file the motion for the issuance of the writ of
execution within that five (5) year period.
Second, the Court must actually issue the writ of execution within
the five (5) year period.
Continuation of Villareal v. Metropolitan:
MWSS filed a Motion for Issuance of Writ of Execution of the RTC
Decision on May 17, 2004. This is within five years from
December 15, 2002 - the date when the decision became final
and executory. Thus, the first act was accomplished.
There is, however, non-compliance with the second act.
In Arambulo v. Court of First Instance of Laguna, we explained
the rule that the jurisdiction of a court to issue a writ of
execution by motion is only effective within the five-year
period from the entry of judgment. Outside this five-year
period, any writ of execution issued pursuant to a motion filed
by the judgment creditor, is null and void. If no writ of
execution was issued by the court within the five-year period,
even a motion filed within such prescriptive period would not
suffice.
A writ issued by the court after the lapse of the five-year period
is already null and void. The judgment creditor's only recourse
then is to file an independent action, which must also be within
the prescriptive period set by law for the enforcement of
judgments.
The limitation that a judgment been enforced by execution
within five years, otherwise it loses efficacy, goes to the very
jurisdiction of the Court. A writ issued after such period is void,
and the failure to object thereto does not validate it, for the
reason that jurisdiction of courts is solely conferred by law and
not by express or implied will of the parties.
As can be gleaned from the aforementioned discussion, the five-
year prescriptive period reckoned from the entry of judgment
mentioned in Section 6, Rule 39 of the Rules, should be observed
both by the winning party who filed the motion, i.e., judgment
obligee/creditor, and the court that will resolve the same. Simply
put, the winning party may file the motion for execution within
the five-year period; and the court should issue the actual writ
of execution pursuant to the motion within the same period.
After the lapse of the five-year period, any writ issued by the
court is already null and void, since the court no longer has
jurisdiction over the issuance of the writ.
As can be gleaned from the aforementioned discussion, the five-
year prescriptive period reckoned from the entry of judgment
mentioned in Section 6, Rule 39 of the Rules, should be observed
both by the winning party who filed the motion, i.e., judgment
obligee/creditor, and the court that will resolve the same. Simply
204
put, the winning party may file the motion for execution within
the five-year period; and the court should issue the actual writ of
execution pursuant to the motion within the same period. After
the lapse of the five-year period, any writ issued by the court is
already null and void, since the court no longer has jurisdiction
over the issuance of the writ.
We cannot subscribe to MWSS' insistence that Orlando's filing of
his Comment/Opposition to the Motion for Issuance of Writ of
Execution, caused the delay in the execution of judgment, which
in effect operates as an exception to the rule that execution by
motion after the lapse of five years is no longer allowed.
As discussed earlier, a judgment may be executed on motion
within five years from the date of its entry or from the date it
becomes final and executory. Thereafter, before barred by the
statute of limitations, by action. However, there are instances
where this Court allowed execution by motion even after the
lapse of five years upon meritorious grounds. These exceptions
have one common denominator, i.e., the delay is caused or
occasioned by actions of the judgment debtor and/or is incurred
for his benefit or advantage.
DISCUSSION
In this particular case, even if supposedly within 5 years you should
file a motion for write of execution, otherwise, if you exceed 5
years, you cannot execute by mere motion, although you can
execute by filing an independent action for revival of judgment.
However, there are case even when 5 years have lapsed, the
Supreme Court allowed execution by motion on meritorious
grounds.
The common denominators in these so-called meritorious
grounds are:
1. The delay is caused or occasioned on the cause by the
action of the judgment debtor; and/or
2. Incurred for his benefit or advantage,
These grounds may suspend the 5-year period. Even if in reality,
you have filed a motion after the 5 years, it is considered to be in
the 5 years. These are:
1. By agreement of the parties for a definite time. If the
judgment creditor and judgment debtor agree to give
debtor a few years to pay, it is for the benefit of the
judgment debtor, so it will not be taken against the
creditor. It will be deducted from the 5-year period.
2. By injunction. If there is injunction issued by the court, it
will be deducted from the 5 years.
3. By the taking of an appeal or Writ of Error so as to
operate as a supersedeas. If there is an appeal, it is not
part of the 5-year period.
4. By the death of a party or otherwise. These are the
circumstances that would further delay the
implementation of a decision.
Continuation of Villareal v. Metropolitan:
In this case, there is an absence of any showing on the part of
MWSS that the execution of the RTC decision was stayed "by
agreement of the parties for a definite time, by injunction, by the
taking of an appeal or writ of error so as to operate as a
supersedeas, by the death of a party or otherwise," or by any
circumstance that would further delay its implementation.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Orlando merely filed a comment to MWSS' motion for the
issuance of a writ of execution. He cannot be faulted in doing so.
There is neither a law nor a rule which prevents him from filing
a comment. Apparently, the delay was not brought about by the
filing of the comment; but instead, the period within which the
MeTC acted upon it.
DISCUSSION
In this case, the judgment debtor, Orlando, merely filed a comment
to the motion for issuance for writ of execution.
Q: Should this be deducted from the 5year period?
A: The Supreme Court said no. He cannot be faulted in doing so.
There is no law nor rule which prevents the judgment debtor from
filing a comment. If there was delay, it was not brought about by
the filing of a comment. It was the fact that the court delayed in
acting upon the Comment. It is beyond the control of the judgment
debtor.
Continuation of Villareal v. Metropolitan:
We conclude this ponencia with a reminder on the significance
of prescriptive period for the enforcement of judgments on the
part of the winning party, as held in Villeza v. German
Management and Services, Inc., et al.:
The Court has pronounced in a plethora of cases that it is
revolting to the conscience to allow someone to further avert
the satisfaction of an obligation because of sheer literal
adherence to technicality; that although strict compliance with
the rules of procedure is desired, liberal interpretation is
warranted in cases where a strict enforcement of the rules will
not serve the ends of justice; and that it is a better rule that
courts, under the principle of equity, will not be guided or bound
strictly by the statute of limitations or the doctrine of laches
when to do so, manifest wrong or injustice would result.
These cases, though, remain exceptions to the general rule.
The purpose of the law in prescribing time limitations for
enforcing judgment by action is precisely to prevent the
winning parties from sleeping on their rights. This Court cannot
just set aside the statute of limitations into oblivion every time
someone cries for equity and justice. Indeed, "if eternal
vigilance is the price of safety, one cannot sleep on one's right
for more than a 10th of a century and expect it to be preserved
in pristine purity"
OTHER CASES
It was held that if the writ of execution was issued and the levy
made within five years from the entry of the judgment, the auction
sale may be made even after the five year period. The sale of the
property and the application of the proceeds are merely the means
to carry out the writ of execution and a levy already validly made.
Accordingly, the levy is the essential act by which the property is
set apart for the satisfaction of the judgment (GOVERNMENT vs.
ECHAUS, 71 Phil. 318; QUIAMBAO vs. MANILA MOTOR CO., 3 SCRA.
444). The sale must however be made within ten years during
which the judgment can be enforced (ANSALDO vs. FIDELITY &
SURETY COMPANY, 88 Phil. 547; JALANDONI vs. PNB, 108
SCRA.102). The ten-year period commences to run from the finality
of the judgment which is the period within which the judgment can
be enforced (Art. 1152 in relation to Art. 1144[31, Civil Code of the
Philippines). Because under the Rules, the date of the finality of the
205
judgment or final order shall be deemed to be the date of its entry,
(Sec. 2, Rule 36, Rules of Court) the period shall run also from the
date of entry of the judgment.
REVIVAL OF JUDGMENT (BAR 1997)
An action to revive a judgment presupposes that the same can
no longer be enforced by mere motion. The judgment is thus
called a DORMANT JUDGMENT. This means that, from the date
of the finality of the judgment, no motion was filed for the
execution of said judgment, thus the need for its enforcement
by action.
The action for revival of a judgment is no more than a procedural
means of securing the execution of a previous judgment which
has become dormant after the passage of five years without it
being executed upon motion of the prevailing party
(SALIGUMBA vs. PALANOG, G.R. No. 143365, December 4, 2008)
The action to revive a judgment must be filed within ten (10)
years from the date the judgment became final because an
action to enforce a judgment prescribes in ten (10) years from
the finality of the Judgment (Art. 1144[3] in relation to Art. 1152,
Civil Code of the Philippines). Since the date of the finality of the
judgment or final order shall be deemed to be the date of its
entry (Sec. 2, Rule 36, Rules of Court), the prescriptive period
shall run from the date of entry of the judgment.
NATURE OF THE ACTION FOR ENFORCEMENT OF A DORMANT
JUDGMENT
The action for enforcement of a dormant judgment is an ordinary
civil action the object of which is two-fold, namely:
(a) to revive the dormant judgment, and
(b) to execute the judgment reviving it,if it grants the plaintiff
any relief.
Hence, the rights of the judgment-creditor depend upon the second
judgment. Being an ordinary civil action, it is subject to all defenses,
objections and counterclaims which the judgment-debtor may
have except that no inquiry can be made as to the merits of the first
judgment. Therefore, defenses that do not go to the merits of the
first judgment, such as lack of jurisdiction, collusion, fraud, or
prescription, may be set up by the judgment-debtor (COMPAÑA
GENERAL DE TABACOS vs. MARTINEZ, 17 Phil. 160).
EXCEPTION TO THE RULE ON DORMANT JUDGMENT
An exception is a judgment for support which does not become
dormant, nor does it prescribe. You can execute it anytime even
beyond the 5-year period and any unpaid installment may be
executed by motion (FLORENDO vs. ORGANO, 90 Phil. 483).
PRINCIPLES TO REMEMBER REGARDING REVIVAL OF
JUDGMENT
1. When a judgment is revived under Sec. 6 of Rule 39, such
revived judgment may also be enforced by motion within
five (5) years from the date of its entry and thereafter by
action also before it is barred by the statute of limitations
(Sec. 6, Rule 39, Rules of Court).
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
2. A revived judgment is DEEMED A NEW JUDGMENT
SEPARATE AND DISTINCT FROM THE ORIGINAL
JUDGMENT.
3. It is NOT A CONTINUATION OF THE ORIGINAL JUDGMENT.
The action to revive the judgment is a new action and
results in a new judgment constituting a new cause of
action with a new period of limitations. Hence, the ten
(10) year period to revive the revived judgment shall
commence to run from the date of the finality of the
revived judgment and not from the date of finality of the
old, original judgment (Philippine National Bank vs.
Bondoc, 14 SCRA 770).
4. If the prevailing party fails to have the decision enforced
by a motion after the lapse of five years from the date of
entry of the judgment, the judgment is REDUCED TO A
RIGHT OF ACTION which must be enforced by the
institution of a complaint in a regular court within ten
years from the time the judgment became final (BAUSA
vs. HEIRS OF JUAN DINO, G.R. No. 167281, August 28,
2008).
5. An action for revival of judgment is NOT INTENDED TO
REOPEN ANY ISSUE AFFECTING THE MERITS of the
judgment debtor's case nor the propriety or the
correctness of the first judgment. It is a new and
independent action wherein the cause of action is the
decision itself and not the merits of the action upon
which the judgment sought to be enforced is rendered
(JUCO vs. HEIRS OF TOMAS SIY CHUNG FU, G.R. No.
150233, February 16, 2005);
6. The purpose of the new action is not to reexamine and
retry issues already decided and the cause of action of
this new action is the judgment to be revived and NO
IDENTITY OF CAUSES OF ACTION CAN BE SAID TO EXIST
BETWEEN THE FIRST AND THE SECOND ACTIONS (Caina
vs. Court of Appeals, G.R. No. 114393, December 15,
1994). The consideration of any issue affecting matters
that could have been raised in the previous case must be
deemed as definitely foreclosed (Philippine
Reconstruction Corporation, Inc. vs. Aparente, 45 SCRA.
217). It is NOT MEANT TO RETRY THE CASE ALL OVER
AGAIN (Enriquez vs. Court of Appeals, 372 SCRA. 372).
BASILONIA, ET AL. VS. HON. VILLARUZ
G.R. Nos. 191370-71 | August 10, 2015
ISSUE: Is Section 6, Rule 39 of the Rules applicable in criminal
cases? Specifically, does a trial court have jurisdiction to grant a
motion for execution which was filed almost twenty (20) years
after the date of entry of judgment?
HELD: Under Article 112 of the RPC, civil liability established in
Articles 100, 101, 102, and 103 of the Code shall be extinguished
in the same manner as other obligations, in accordance with the
provisions of the Civil Law. Since the Civil Code is the governing
law, the provisions of the Revised Rules of Civil Procedure,
particularly Section 6, Rule 39 thereof, is applicable.
Section 6, Rule 39 of the Rules must be read in conjunction with
Articles 1144 (3) and 1152 of the Civil Code, which provide:
Art. 1144. The following actions must be brought within ten
years from the time the right of action accrues:
206
xxxx
(3) Upon a judgment
Art. 1152. The period for prescription of actions to demand the
fulfillment of obligations declared by a judgment commences
from the time the judgment became final.
Based on the foregoing, there are two (2) modes of enforcing a
final and executory judgment or order: through motion or by
independent action.
These two modes of execution are available depending on the
timing when the judgment creditor invoked its right to enforce
the court's judgment. Execution by motion is only available if the
enforcement of the judgment was sought within five (5) years
from the date of its entry. On the other hand, execution by
independent action is mandatory if the five-year prescriptive
period for execution by motion had already elapsed. However,
for execution by independent action to prosper - the Rules
impose another limitation - the action must be filed before it is
barred by the statute of limitations which, under the Civil Code,
is ten (10) years from the finality of the judgment.
These two modes of execution are available depending on the
timing when the judgment creditor invoked its right to enforce
the court's judgment. Execution by motion is only available if
the enforcement of the judgment was sought within five (5)
years from the date of its entry. On the other hand, execution
by independent action is mandatory if the five-year prescriptive
period for execution by motion had already elapsed. However,
for execution by independent action to prosper - the Rules
impose another limitation - the action must be filed before it is
barred by the statute of limitations which, under the Civil Code,
is ten (10) years from the finality of the judgment.
An action for revival of judgment is not intended to reopen any
issue affecting the merits of the case or the propriety or
correctness of the first judgment. The purpose is not to re-
examine and re-try issues already decided but to revive the
judgment; its cause of action is the judgment itself and not the
merits of the original action. However, being a mere right of
action, the judgment sought to be revived is subject to defenses
and counterclaims like matters of jurisdiction and those arising
after the finality of the first judgment or which may have arisen
subsequent to the date it became effective such as prescription,
payment, or counterclaims arising out of transactions not
connected with the former controversy.
A writ issued after the expiration of the period is null and void.
The limitation that a judgment be enforced by execution within
the stated period, otherwise it loses efficacy, goes to the very
jurisdiction of the court. Failure to object to a writ issued after
such period does not validate it, for the reason that jurisdiction
of courts is solely conferred by law and not by express or implied
will of the parties.
Nonetheless, jurisprudence is replete with a number of
exceptions wherein the Court, on meritorious grounds, allowed
execution of judgment despite non-observance of the time bar.
Thus, the demands of justice and fairness were contemplated in
the following instances:
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
• when execution is stayed by injunction;
• when execution is stayed by the taking of an appeal or
writ of error so as to operate as a supersedeas;
• when execution is stayed by by the death of a party,
or otherwise;
• dilatory tactics and legal maneuverings of the
judgment obligor which redounded to its benefit;
• agreement of the parties to defer or suspend the
enforcement of the judgment;
• strict application of the rules would result in injustice
to the prevailing party to whom no fault could be
attributed but relaxation thereof would cause no
prejudice to the judgment obligor who did not
question the judgment sought to be executed;
• the satisfaction of the judgment was already beyond
the control of the prevailing party as he did what he
was supposed to do;
In the instant case, the heirs of Atty. Roblete did not file a motion
for execution within the five-year period or an action to revive
the judgment within the ten-year period. Other than the bare
allegation that the judgment has not been enforced because the
public prosecutor has not acted on the request to file a motion
for execution, no persuasive and compelling reason was
presented to warrant the exercise of Our equity jurisdiction. The
instant case does not fall within the exceptions afore-stated. It
cannot be claimed that the delay in execution was entirely
beyond their control or that petitioners have any hand in
causing the same.
Litigants represented by counsel should not expect that all they
need to do is sit back and relax, and await the outcome of their
case. They should give the necessary assistance to their counsel,
for at stake is their interest in the case. While lawyers are
expected to exercise a reasonable degree of diligence and
competence in handling cases for their clients, the realities of
law practice as well as certain fortuitous events sometimes
make it almost physically impossible for lawyers to be
immediately updated on a particular client's case.
THE PROBLEM WITH THE PRINCIPLES:
INCONSISTENCIES
Hypothetical problem:
A secured a favorable judgment before the MTC in an action for
forcible entry. He failed however to execute the judgment on
motion. Thus, he must file an action to revive judgment.
FIRST PRINCIPLE APPLICABLE:
It is a new and independent action wherein the cause of ac-tion is
the decision itself and not the merits of the action upon which the
judgment sought to be enforced is rendered (JUCO vs. HEIRS OF
TOMAS SIY CHUNG FU, G.R. No. 150233, February 16, 2005).
Q: Because of this principle, the next logical question to ask is: which
court has jurisdiction over the new cause of action?
A: If it is not a new cause of action and merely a continuation of the
original case, we don’t have to ask this question. All that the
judgment obligee has to do is to file the action for revival in the
same MTC which rendered the decision. Pursuant to the court’s
inherent power (Rule 134) to issue all processes necessary to
207
en-force their judgments and orders. Revival therefore is but a
necessary step before enforcement.
This seems to be supported by the case of: (no case cited)
SECOND PRINCIPLE APPLICABLE
The filing of a cause of action is a slave to the law on jurisdiction.
If an action to revive judgment is an entirely new cause of action,
we must, as a possible necessary implication, apply the rules on
jurisdiction.
It is submitted that the new action, i.e., to revive the judgment
would necessarily raise the fundamental issues of whether or not
the plaintiff has a right to have the judgment revived and to have a
new right of enforcement from its revival, issues that by nature are
incapable of pecuniary estimation. Inevitably, a litigant may find
himself in a situation where he files the action in the Regional Trial
Court to revive a judgment rendered by a Municipal Trial Court.
There lies the rub.
THUS, THE ULTIMATE QUESTION IS: WHERE DO YOU FILE IT?
ANAMA vs. CITIBANK, N. A.
G.R. No. 192048, December 13, 2017
As an action for revival of judgment is a new action with a new
cause of action, the rules on instituting and commencing actions
apply, including the rules on jurisdiction. It jurisdictional
requirements are not dependent on the previous action and the
petition does not necessarily have to be filed in the same court
which rendered judgment.
As an action to revive judgment raises issues of whether the
petitioner has a right to have the final and executory judgment
revived and to have that judgment enforced and does not
involve recovery of a sum of money, jurisdiction over a petition
to revive judgment is with the RTC. It is an action incapable of
pecuniary estimation.
Where, however, the action filed is to revive a judgment in a labor
case, regular courts are bereft of jurisdiction to en-tertain disputes
involving employer-employee relationships. Thus, in MARICALUM
MINING CORPORATION vs. NLRC, G.R. No. 124711, November 3,
1998, the Court sustained the propriety of the institution of the
action for revival of a judgment in the NLRC.
PROPER VENUE OF AN ACTION FOR REVIVAL OF JUDGMENTS
INFANTE vs. ARAN BUILDERS, INC.
G.R. No. 156596, August 24, 2007
The proper venue depends on the determination of whether the
present action for revival of judgment is a real action or a
personal action. If the action for revival of judgment affects title
to or possession of real property, or interest therein, then it is a
real action that must be filed with the court of the place where
the real property is located. If such action does not fall under the
category of real actions, it is then a personal action that may be
filed with the court of the place where the plaintiff or defendant
resides.
 CIVIL PROCEDURE 208
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

WHEN THE FIVE AND TEN-YEAR PERIODS DO NOT APPLY enforced in the manner especially provided in these
The periods do not apply to: Rules for prosecuting claims against the estate of a deceased
a) special proceedings, such as land registration and person. (21a)
cadastral cases, wherein the right to ask for a writ of
possession does not prescribe (Rodil vs. Benedicto, 95 SITUATION EFFECT
SCRA 137); Party dies before final There will be a substitution of
b) judgments for support which do not become dormant judgment (loan). party and the case will
and which can always be executed by motion despite continue until entry of final
lapse of the five-year period because the obligation is a judgment.
continuing one and the court never loses jurisdiction to
There is already entry of final The judgment shall be
enforce the same (Canonizado vs. Benitez, 127 SCRA
judgment and he dies but enforced in the manner
610).
there is still no levy of provided for by the Rules on
property. claims against the estate of
Section 7. Execution in case of death of party. – In case of the the deceased under Rule 86.
death of a party, execution may issue or be enforced in There is already entry of final The auction sale will proceed
following manner: judgment and he dies but as scheduled in connection
a) In case of the death of the judgment obligee, upon the there is still already a levy of with Section 7 [c] because the
application of his executor or administrator, or property. law says “the same may be
successor in interest; sold for the satisfaction of the
b) In case of the death of the judgment obligor, against judgment obligation.”
his executor or administrator or successor in interest, Meaning, the auction sale or
if the judgment be for the recovery of real or personal the execution sale shall
property, or the enforcement of a lien thereon; proceed as scheduled. No
c) In case of the death of the judgment obligor, after more substitution here.
execution is actually levied upon any of his property,
the same may be sold for the satisfaction of the
Section 8. Issuance, form and contents of a writ of execution. –
judgment obligation, and the officer making the sale
The writ of execution shall: (1) issue in the name of the Republic
shall account to the corresponding executor or
of the Philippines from the court which granted the motion; (2)
administrator for any surplus in his hands. (7a)
state the name of the court, the case number and title, the
dispositive part of the subject judgment or order; and (3)
DISCUSSION require the sheriff or other proper officer to whom it is directed
Based on what we have discussed, it would depend on who died. If to enforce the writ according to its terms, in the manner
it is the plaintiff, there is no problem at whatever stage of action, hereinafter provided:
there will still be substitution. If it is the defendant who dies, then
it is a different story depending on what stage of action he died (a) If the execution be against the property of the judgment
and/or what is the nature of the action (ie. action relating to obligor, to satisfy the judgment, with interest, out of the real or
property or contract whether express or implied with money claim, personal property of such judgment obligor;
or based on quasi-delict with money claim).
(b) If it be against real or personal property in the hands of
Let’s dissect Section 7: personal representatives, heirs, devisees, legatees, tenants, or
trustees of the judgment obligor, to satisfy the judgment, with
EFFECT OF A DEATH OF A PARTY ON THE EXECUTION OF A interest, out of such property;
JUDGMENT
(c) If it be for the sale of real or personal property, to sell such
1. If it is the obligee (the creditor/plaintiff) who will die after property, describing it, and apply the proceeds in conformity
he wins the case, his executor or administrator, his legal with the judgment, the material parts of which shall be recited
representative or his heirs and successors in interest can in the writ of execution;
enforce the judgment;
2. If it is the obligor who dies and there is final judgment (d) If it be for the delivery of the possession of real or personal
which is recovery of real or personal property, the property, to deliver the possession of the same, describing it, to
judgment is executed against the administrator or the party entitled thereto, and to satisfy any costs, damages,
executor because this is an action which survives; rents, or profits covered by the judgment out of the personal
3. Under paragraph (c), it is the death of the obligor in a property of the person against whom it was rendered, and if
money claim. This is related to Rule 3, Section 20. sufficient personal property cannot be found, then out of the
However, the timing of the death is different. Let us real property; and
connect these with Rule 3, Sec. 20:
(e) In all cases, the writ of execution shall specifically state the
Sec. 20. Action on contractual money claims. - When the amount of the interest, costs, damages, rents, or profits due as
action is for recovery of money arising from contract, express of the date of the issuance of the writ, aside from the principal
or implied, and the defendant dies before entry of final obligation under the judgment. For this purpose, the motion for
judgment in the court in which the action was pending at the execution shall specify the amounts of the foregoing reliefs
time of such death, it shall not be dismissed but shall instead sought by the movant. (8a)
be allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff therein shall be
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
MARSADA vs. MONTEROSO
AM No. P-10-2793, Mar 08, 2016
The writ of execution should mirror the judgment that it
enforces. The form and contents of the writ of execution are
specified in Section 8, Rule 39 of the Rules of Court, viz.:
Section 8. Issuance, form and contents of a writ of execution. —
The writ of execution shall: (1) issue in the name of the Republic
of the Philippines from the court which granted the motion; (2)
state the name of the court, the case number and title, the
dispositive part of the subject judgment or order; and (3) require
the sheriff or other proper officer to whom it is directed to
enforce the writ according to its terms, in the manner herein
after provided:
Under this provision of the Rules of Court, Monteroso could
enforce the writ of execution only "according to its terms, in the
manner herein after provided." However, he was remiss in his
duty to enforce the writ by collecting only P25,000.00. Even
assuming that he had only been successful in collecting
P25,000.00 from the defendant, he still exceeded his authority
in requesting Marsada to sign the typewritten acknowledgment
receipt reflecting the P25,000.00 as the full and complete
satisfaction of the writ of execution. He had neither basis nor
reason to have Marsada sign the receipt in that tenor because
the text and tenor of the writ of execution expressly required
the recovery of P35,000.00 from the losing party.
Also, Marsada claimed that Monteroso had represented to him
that the defendant could no longer pay the balance. The
representation, even if true, did not justify Monteroso's
unilateral decision to discontinue the effort to recover the
balance.
It clearly devolved upon him as the sheriff to levy upon the
execution debtor's properties, if any, as well as to garnish the
debts due to the latter and the credits belonging to the latter.
The duty to exhaust all efforts to recover the balance was laid
down in Section 9, Rule 39 of the Rules of Court.
Section 9. Execution of judgments for money, how enforced. –
(a) Immediate payment on demand. – The officer shall enforce
an execution of a judgment for money by demanding from the
judgment obligor the immediate payment of the full amount
stated in the writ of execution and all lawful fees. The judgment
obligor shall pay in cash, certified bank check payable to the
judgment oblige, or any other form of payment acceptable to
the latter, the amount of the judgment debt under proper
receipt directly to the judgment oblige or his authorized
representative if present at the time of payment. The lawful fees
shall be handled under proper receipt to the executing sheriff
who shall turn over the said amount within the same day to the
clerk of court of the court that issued the writ.
If the judgment obligee or his authorized representative is not
present to receive payment, the judgment obligor shall deliver
the aforesaid payment to the executing sheriff. The latter shall
turn over all the amounts coming into his possession within the
same day to the clerk of court of the court that issued the writ,
or if the same is not practicable, deposit said amounts to a
fiduciary account in the nearest government depository bank of
the Regional Trial Court of the locality.
The clerk of said court shall thereafter arrange for the
remittance of the deposit to the account of the court that issued
209
the writ whose clerk of court shall then deliver said payment to
the judgment obligee in satisfaction of the judgment. The
excess, if any, shall be delivered to the judgment obligor while
the lawful fees shall be retained by the clerk of court for
disposition as provided by law. In no case shall the executing
sheriff demand that any payment by check be made payable to
him.
(b) Satisfaction by levy. — If the judgment obligor cannot pay all
or part of the obligation in cash, certified bank check or other
mode of payment acceptable to the judgment obligee, the
officer shall levy upon the properties of the judgment obligor of
every kind and nature whatsoever which may be disposed, of for
value and not otherwise exempt from execution giving the latter
the option to immediately choose which property or part
thereof may be levied upon, sufficient to satisfy the judgment.
If the judgment 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 for the judgment.
The sheriff shall sell only a sufficient portion of the personal or
real property of the judgment obligor which has been levied
upon.
When there is more property of the judgment obligor than is
sufficient to satisfy the judgment and lawful fees, he must sell
only so much of the personal or real property as is sufficient to
satisfy the judgment and lawful fees.
Real property, stocks, shares, debts, credits, and other personal
property, or any interest in either real or personal property, may
be levied upon in like manner and with like effect as under a writ
of attachment.
(c) Garnishment of debts and credits. — The officer may levy on
debts due the judgment obligor and other credits, including
bank deposits, financial interests, royalties, commissions and
other personal property not capable of manual delivery in the
possession or control of third parties. Levy shall be made by
serving notice upon the person owing such debts or having in his
possession or control such credits to which the judgment obligor
is entitled. The garnishment shall cover only such amount as will
satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the court within
five (5) days from service of the notice of garnishment stating
whether or not the judgment obligor has sufficient funds or
credits to satisfy the amount of the judgment. If not, the report
shall state how much funds or credits the garnishee holds for the
judgment obligor. The garnished amount in cash, or certified
bank check issued in the name of the judgment obligee, shall be
delivered directly to the judgment obligee within ten (10)
working days from service of notice on said garnishee requiring
such delivery, except the lawful fees which shall be paid directly
to the court.
In the event there are two or more garnishees holding deposits
or credits sufficient to satisfy the judgment, the judgment
obligor, if available, shall have the right to indicate the garnishee
or garnishees who shall be required to deliver the amount due,
otherwise, the choice shall be made by the judgment obligee.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
The executing sheriff shall observe the same procedure under
paragraph (a) with respect to delivery of payment to the
judgment obligee. (8a, 15a)
DISCUSSION
There’s an action for collection for sum of money filed by the
plaintiff against the defendant and the decision is for the defendant
to pay and it’s now final and executory. So, there is a writ of
execution.
Q: How do you enforce it?
A: First, the plaintiff will file for a writ of execution and is granted
by the court. When there is already a writ of execution, the sheriff
now will make a demand for payment to the judgment debtor or
obligor. You will give the judgment debtor or obligor a certain
period within which to pay. If the judgment debtor paid within the
same day, the sheriff shall remit the money to the clerk of court
that issued the writ.
Q: The problem is if the defendant refuses to pay. What will
happen next?
A: The sheriff will now look for properties of judgment debtor. He
will levy on the real and personal properties of the judgment
debtor. How does the sheriff do it? For example, he can go to the
ROD. He can ask if there are properties, lands, or buildings which
are existing in the name of the judgment debtor. Or with the
Assessor’s Office as to the tax declaration. He can also check if there
are buildings under the name of the judgment debtor. He can also
go to LTO. He can check if there are vehicles registered in the name
of the judgment debtor.
If there are existing properties, lands or buildings under the name
of the judgment debtor, only in so far as to the amount of the
judgment obligation is concerned. These may be sold at a public
auction. The sheriff will give the judgment debtor the first
opportunity to choose on what properties can be sold. But if not,
the sheriff will choose first the personal properties, then next
would be the real properties.
The sheriff can also issue notices of garnishment. What is
garnishment? He can go to the banks and check if the judgment
debtor has deposits, royalties, shares of stocks, dividends, or
commissions. By issuing the notice of garnishment, for example the
corporation will declare dividends, they will no longer give it to the
judgment debtor. They cannot pay to the judgment debtor. Instead,
that will be reported to the sheriff and will be used to pay the
judgment obligation. So that’s the process in execution of
judgments involving money.
HOW TO EXECUTE JUDGMENTS FOR MONEY
Demand immediate payment
FIRST STEP: DEMAND and payment in full by
judgment obligor.
1. The sheriff makes a demand from the judgment obligor
the immediate payment of:
a. FULL AMOUNT STATED IN THE WRIT – under proper
receipt directly to the judgment oblige or his
authorized representative if present at the time of
payment.
210
If the judgment obligee or his authorized representative is not
present, the judgment obligor shall deliver the aforesaid payment
to the executing sheriff, who shall then turn over all the amounts
coming into his possession within the same day to the clerk of court
of the court that issued the writ.
24-K PROPERTY VENTURES, INC. v. YOUNG BUILDERS
CORPORATION
G.R. No. 193371 | December 05, 2016
HELD: A valid demand for the immediate payment of the
full amount stated in the writ of execution
and all lawful fees is necessary to a proper levy.
Section 9, Rule 39 of the Revised Rules of Court provides that in
the execution of money judgments, "(t)he officer shall enforce
an execution of a judgment for money by demanding from the
judgment obligor the immediate payment of the full amount
stated in the writ of execution and all lawful fees."
The first crucial step in the execution of money judgments is a
valid demand on the judgment obligor, usually via a valid
service of the writ of execution.
In the case at bar, the Sheriff’s Report/Return stated:
By virtue of the Writ of Execution, dated May 2, 2006 issued by
Construction Industry Arbitration Commission, the undersigned
sheriff tried to serve said writ upon officer of respondent
corporation, however, despite (diligent] effort exerted by herein
sheriff to serve to the officer of respondent corporation [,]
[service] proved futile because they refused to acknowledge
receipt thereof x x x.
Noticeably, the Sheriff’s Report/Return failed to specifically
indicate material information on the alleged attempted service
on petitioner. It failed to state the name of the officer who
allegedly refused to receive the writ and the circumstances
surrounding such refusal, and even the date when said
attempted service was allegedly made.
If the same is not practicable, such as when the issuing court is
not the same as the executing court and when they are of
different localities, the sheriff shall deposit said amounts to a
fiduciary account in the nearest government depository bank of
the Regional Trial Court of the locality. The clerk of said court
shall thereafter arrange for the remittance of the deposit to the
account of the court that issued the writ whose clerk of court
shall then deliver said payment to the judgment obligee in
satisfaction of the judgment.
The excess, if any, shall be delivered to the judgment obligor.
b. LAWFUL FEES - handed under proper receipt to the
executing sheriff who shall turn over the said amount within
the same day to the clerk of court of the court that issued the
writ.
The lawful fees shall be retained by the clerk of court for
disposition as provided by law.
The judgment obligor may pay in cash, certified check payable
to the judgment obligee or any other form of payment
acceptable to him. In no case shall the executing sheriff demand
that any payment by check be made payable to him.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
PEÑA, JR. vs. REGALADO II, SHERIFF IV, RTC of NAGA
A.M. No. P-10-2772 | February 16, 2010
FACTS: Sheriff Regalado performed the following acts:
1. After payment of installment by judgment obligor to
him at his office, he went to the house of the obligee
and paid directly to her;
2. After receipt of installment payments, the sheriff
merely issued handwritten acknowledgment receipts.
RULING: Sheriffs are officers of the court who serve and execute
writs addressed to them by the court, and who prepare and
submit returns on their proceedings. As officers of the court,
they must discharge their duties with great care and diligence.
They have to perform faithfully and accurately what is
incumbent upon them and show at all times a high degree of
professionalism in the performance of their duties. Despite
being exposed to hazards that come with the implementation of
the judgment, sheriffs must perform their duties by the book.
Section 9, Rule 39 of the Rules of Court lays down the procedure
to be followed by the sheriff in implementing money judgments.
When the judgment obligee is not present at the time the
judgment obligor makes the payment, the sheriff is authorized
to receive it. However, the money received must be remitted to
the clerk of court within the same day or, if not practicable,
deposited in a fiduciary account with the nearest government
depository bank. Evidently, sheriffs are not permitted to retain
the money in their possession beyond the day when the
payment was made or to deliver the money collected directly to
the judgment obligee.
Respondent’s excuse for not turning over the money to the clerk
of court does not persuade us enough to arrive at a contrary
finding. He explains that it was practical to directly give the
money he collected from complainant to Francisco, whose
house is just adjacent to that of the complainant. Firstly,
complainant could have directly made the payment to Francisco
or her representative. Secondly, considering that the first
payment was handed to him by complainant in his office,
respondent could have easily turned it over to the clerk of court.
Instead, respondent went to Francisco’s house to give her the
money, presumably as an act of good will.
Respondent may have been motivated by a noble intention
when he directly gave the P13,000.00 to Francisco, but the same
cannot be said of the two succeeding payments. Francisco had
to file a complaint against respondent before the latter
delivered the same to her. Though respondent insists that he
gave the amounts to Francisco on the same day he received
them, this is belied by Francisco’s positive testimony that she
received the money several months after the dates indicated in
the receipts. This is corroborated by Francisco’s letter-complaint
to Judge Contreras and her account of what transpired in the
conference that the latter arranged.
Good faith on the part of respondent, or lack of it, in proceeding
to properly execute his mandate would be of no moment, for he
is chargeable with the knowledge that being an officer of the
court tasked thereto, it behooves him to make due
compliance. As implementing officers of the court, sheriffs
211
should set the example by faithfully observing and not brazenly
disregarding the Rules of Court. Incredibly, respondent even
blatantly admitted that he followed the same procedure in some
of the other writs of execution that he enforced.
Moreover, the records show that, upon receipt from
complainant (judgment obligor) of three payments, respondent
merely issued handwritten acknowledgment receipts to him.
This act constitutes a violation of Section 113, Article III, Chapter
V of the National Accounting and Auditing Manual which
provides “that no payment of any nature shall be received by a
collecting officer without immediately issuing an official receipt
in acknowledgment thereof.”
Accordingly, we find respondent guilty of conduct prejudicial to
the best interest of the service for not following the proper
procedure in enforcing writs of execution. Sheriffs have the
duty to perform faithfully and accurately what is incumbent
upon them, and any method of execution falling short of the
requirement of the law deserves reproach and should not be
countenanced. The Court will not hesitate to impose the
ultimate penalty on those who fall short of their
accountabilities. The Court condemns and does not tolerate any
conduct that violates the norms of public accountability and
diminishes public confidence in the judicial system.
If the judgment obligor cannot pay all
or part of the obligation, the officer
SECOND STEP: LEVY
shall levy upon the properties of the
judgment obligor.
LEVY
Levy is the act whereby a sheriff sets apart or appropriates, for the
purpose of satisfying the command of the writ, a part or the whole
of the judgment-debtor’s property (VALENZUELA vs. DE AGUILAR,
L-18083-84, May 31, 1963).
CONSEQUENCES OF LEVY
1. The levy is the essential act by which the property is SET APART
for the satisfaction of the judgment and TAKEN INTO THE
CUSTODY OF THE LAW;
2. As to the ownership of the judgment obligor, his interest is
limited to its application to the judgment, irrespective of the
time when it may be sold but the sale should not be beyond
10 years from entry of judgment (JALANDONI vs. PNB, G.R. No.
L-47579, October 9, 1981);
3. Levy is a pre-requisite to the auction sale (esp. when the action
is in personam). In order that an execution sale may be valid,
there must be a previous valid levy. A sale not preceded by a
valid levy is void and the purchaser acquires no title
(VALENZUELA vs. DE AGUILAR, L-18083-84, May 31, 1963).
PROPERTIES THAT CAN BE LEVIED
Any property – real or personal, tangible or intangible – maybe
levied upon, except those properties that are exempt from
execution under Section 13.
A levy upon real property is made by the officer by per-forming two
specific acts: (a) filing with the Register of Deeds a copy of the
order, description of the attached property and notice of
attachment; and (b) leaving with the occupant of the property copy
of the same order, description and notice. Non-compliance with
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
any of these requisites is fatal because a special statutory provision
respecting the manner of carry-ing out levy of attachment must be
strictly complied with and departure therefrom shall invalidate the
levy (DELTA MOTORS CORPORATION vs. COURT OF APPEALS, 168
SCRA 206; PHILIPPINE SURETY AND INSURANCE CO. vs. ZABAL, 21
SCRA 682).
RIGHT OF JUDGMENT OBLIGOR TO CHOOSE
1. The judgment obligor shall have the option to choose which
property or part thereof may be levied upon;
2. If the judgment obligor does not exercise the option to choose,
the officer shall first levy on the personal properties, if any,
and then on the real properties if the personal properties are
insufficient to answer for the personal judgment.
3. The sheriff shall sell only so much of the property that is
sufficient to satisfy the judgment and lawful fees.
WHEN NO PRIOR LEVY/DEMAND IS NECESSARY
Levy by the sheriff may be done only if the judgment obligor cannot
pay all or part of the obligation in cash, certified bank check or
through other mode acceptable to the prevailing party. If payment
can be done, a levy is unnecessary. On the other hand, if the
judgment obligor makes a prior admission that he cannot pay the
amount stated in the writ of execution and that he agrees to the
levy of his properties so long as the auction sale would not be set
earlier than a certain set by the judgment obligor, such admission
provides a reasonable basis for the sheriff to forego a prior demand
to pay and to levy on the properties right away (VILLARIN vs.
MUNASQUE, G.R. No.169444, September 17, 2008).
LEVY BY GARNISHMENT
The sheriff may levy on the debts due the judgment debtor
including bank deposits, financial interests, royalties, commissions
and other personal property not capable of manual delivery in the
possession or control of third parties. The process of effecting this
form of levy is called garnishment.
DISCUSSION
The best example for garnishment: The judgment debtor refuses to
pay the obligation embodied in judgment even after demand by the
sheriff. What happens now is that the sheriff will start looking for
other properties that can be used to pay the plaintiff. The plaintiff
may have a bank account, say the plaintiff has an account with
Metrobank, the sheriff will send a notice of garnishment to the
Metrobank. The effect is that first, the sheriff will notify the
Metrobank if the plaintiff has money in the bank and if there are
funds, that should cannot be withdrawn by the defendant, in other
words, it will be frozen because that money will be used to satisfy
the judgment obligation of the judgment debtor.
DEFINITION OF GARNISHMENT
PERLA COMPANIA DE SEGUROS, INC. vs. RAMOLETE
G.R. No. L-60887, November 13, 1991
Garnishment has been defined as a species of attachment for
reaching any property or credits pertaining or payable to a
judgment debtor.
In legal contemplation, it is a forced novation by the substitution
of creditors: the judgment debtor, who is the original creditor of
the garnishee is, through service of the writ of garnishment,
substituted by the judgment creditor who thereby becomes
creditor of the garnishee. Garnishment has also been described
212
as a warning to a person having in his possession property or
credits of the judgment debtor, not to pay the money or deliver
the property to the latter, but rather to appear and answer the
plaintiff's suit.
JURISDICTION OVER THE PERSON OF THE
JUDGMENT OBLIGOR’S DEBTOR (GARNISHEE)
In order that the trial court may validly acquire jurisdiction to bind
the person of the garnishee, it is not necessary that summons be
served upon him. The garnishee need not be impleaded as a party
to the case. All that is necessary for the trial court lawfully to bind
the person of the garnishee or any person who has in his possession
credits belonging to the judgment debtor is service upon him of the
writ of garnishment.
The Rules of Court themselves do not require that the garnishee be
served with summons or impleaded in the case in order to make
him liable (PERLA COMPANIA DE SEGUROS, INC. vs. RAMOLETE,
G.R. No. L-60887, November 13, 1991).
PROCEDURE IN GARNISHMENT
Garnishment shall be made by:
a) serving notice upon the third person having in possession
or control of the credits in favor of the judgment obligor;
b) the third person or garnishee shall make a written report
to the court within five (5) days from service of the notice
of garnishment stating whether or not the judgment
obligor has sufficient funds to satisfy the judgment. If
sufficient, the garnishee shall deliver the amount in cash
or certified check shall directly to the judgment obligee
within ten (10) working days from service of notice on
said garnishee. The lawful fees shall be directly paid to
the court. If the amount is insufficient, the garnishee shall
make a report as to the amount he holds for the
judgment obligor (Sec. 9, Rule 39, Rules of Court).
RELATED PROVISION
Section 39. Obligor may pay execution against obligee.
— After a writ of execution against property has been
issued, a person indebted to the judgment obligor may
pay to the sheriff holding the writ of execution the
amount of his debt or so much thereof as may be
necessary to satisfy the judgment, in the manner
prescribed in section 9 of this Rule, and the sheriff's
receipt shall be a sufficient discharge for the amount so
paid or directed to be credited by the judgment obligee
on the execution. (41a)
DISCUSSION
In Obligations and Contracts:
Q: If you are the debtor, to whom shall payment be made?
A: Only to the creditor or to the person authorized by the creditor
to receive payment.
Q: What is the consequence if you did not pay to the creditor or
person authorized/representative?
A: Even if you paid, that payment will not be considered as a valid
payment and you the creditor will make pay again.
EXAMPLE:
You have a creditor who is also a defendant in a case and in that
case there's a final and executory judgment against your creditor
telling him to pay the plaintiff in that case P1,000,000. Since you
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
have a debt to that creditor (P1,000,000). What if you paid, not to
the creditor, but to the sheriff holding the writ of execution and it
was credited as payment to the plaintiff. Now, the creditor was
informed that you paid to the sheriff and not to him.
Q: Will that payment to the sheriff valid?
A: Yes. That is covered by Section 39 because that payment which
you made to the sheriff holding the writ of execution against your
creditor inured to the benefit of your creditor. The sheriff’s receipt
shall be a sufficient discharge for the amounts of paid or directed
to be credited by the judgment obligee on the execution. You
cannot be compelled to pay again.
Section 10. Execution of judgments for specific act. —
(a) Conveyance, delivery of deeds, or other specific acts;
vesting title. — If a judgment directs a party to execute a
conveyance of land or personal property, or to deliver deeds or
other documents, or to perform, any other specific act in
connection therewith, and the party fails to comply within the
time specified, the court may direct the act to be done at the
cost of the disobedient party by some other person appointed
by the court and the act when so done shall have like effect as
if done by the party. If real or personal property is situated
within the Philippines, the court in lieu of directing a
conveyance thereof may by an order divest the title of any party
and vest it in others, which shall have the force and effect of a
conveyance executed in due form of law. (10a) xxx
DISCUSSION
EXAMPLE:
The case is for reconveyance of property or to compel the seller to
execute the necessary deed of sale or maybe to compel redemption
of a land which is subject of a pacto de retro sale and there is
already decision ordered by the court and then the court granted
the prayer of the plaintiff and ordered the defendant to deliver the
property to the plaintiff or execute the deed of sale and have it
notarized to allow the redemption of the property – that is the
judgment that became final and executory.
Q: If the defendant refused to comply with that order, what are
the remedies of the plaintiff? Can the defendant be forced to sign
the deed of sale?
A: No. In case there is non-compliance, the court may directly act
to be done at the cost of the disobedient party, by some other
person appointed by the court and the act done should have the
like effect as if done by the party.
Here, there is already a private deed of sale but for the purpose of
convenience and to have the title be transferred to the name of the
buyer in a public document. If the seller refuses to sign, then it can
be done by another or if a real or personal property is situated in
the Philippines, instead of ordering the defendant to sign the deed
of sale, the cancelling of the title can be directly done and
transferred in the name of the plaintiff. Again, it shall have the same
force and effect of a conveyance executed in due form of law.
Remember, when this is the judgment for specific act which
became final and executory.
EXECUTE A CONVEYANCE OF
LAND OR PERSONAL PROPERTY, ETC.
Examples covered by Rule 39:
1. An action for reconveyance of property where the owner
of title is sued to convey to the claimant his property;
213
2. Pacto de retro sale. The vendor a retro is exercising his
right to repurchase but the vendee does not honor the
repurchase clause. If the vendor wins in the suit, the
judgment may order the vendee to allow the vendor to
repurchase;
3. Right of legal redemption. For instance, under the Public
Land Act, the owner of property pursuant to a homestead
or free patent who sold the same has the right to
repurchase it within 5 years. If he wins in the suit, the
transferee will be directed to return to the grantee the
property and execute a deed of sale.
If the judgment requires a person to perform a specific act, said act
must be" performed but if the party fails to comply within the
specified time, the court may direct the act to be done by someone
at the cost of the disobedient party and the act when so done shall
have the effect as if done by the party (Sec. 10[a], Rule 39, Rules of
Court).
Note that if the property is situated within the Philippines, the
court, in lieu of directing a conveyance thereof, may by an order
divest the title of any party and vest it in others, which shall have
the force and effect of a conveyance executed in due form of law.
SPOUSES TORRES-AGUINALDO vs. TORRES, JR.
G.R. No. 225808, September 11, 2017
Although the improper notarization of the 1991 deed of sale did
not affect the validity of the sale of the subject properties to
respondent, the same, however, rendered the said deed
unregistrable, since notarization is essential to the registrability
of deeds and conveyances. The legal requirement that the sale
of real property must appear in a public instrument is merely a
coercive means granted to the contracting parties to enable
them to reciprocally compel the observance of the prescribed
form.
The existence of the sale of the subject properties in
respondent's favor had been duly established. Thus, the Court
upholds the CA's directive for petitioners to execute a
registrable deed of conveyance in respondent's favor within
thirty (30) days from finality of the decision, in accordance with
the prescribed form under Articles 1357 and 1358 (1) of the Civil
Code. Notably, if petitioners fail to comply with this directive
within the said period, respondent has the option to file the
proper motion before the court a quo to issue an order divesting
petitioners' title to the subject properties under the parameters
of Section 10 (a), Rule 39 of the Rules of Court.
DISCUSSION
This is the one I mentioned earlier, if you remember your
obligations and contracts.
Q: What is the status of a sale of real property which is in writing
but not in a public document?
A: That sale is valid and it can be enforced because under the
statute of frauds, as long as it is in writing, that is already sufficient.
However, it cannot be registered, it is unregistrable under the Land
Registration Law - meaning the title, standing in the name of the
seller, cannot be transferred to the buyer if you don't have a public
document which evidenced the sale.
Now Under Article 1357 of the New Civil Code, if the law requires
a document or other special form as in the acts and contracts
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
enumerated in the following article, the contracting parties may
compel each other to observe that form once the contract has been
perfected. This right may be exercised simultaneously with the
action upon the contract.
So, you can compel the seller to sign the to sign a deed of sale and
have it notarized or if there is a private document already, just
appear before the notary public so that the document can be
notarized, acknowledged before the notary public. If there is
refusal, even if there's already a decision of the court telling him to
do that, the remedy is mentioned in Section 10, the court can issue
an order divesting the title of the seller to the subject properties
and transfer it in the name of the buyer.
Section 10. Execution of judgments for specific act. —
(b) Sale of real or personal property. — If the judgment be for
the sale of real or personal property, to sell such property,
describing it, and apply the proceeds in conformity with the
judgment. (8[c]a) xxx
The best example for [b] is an action for termination of co-
ownership where there are several co-owners of land and physical
division of the same would lead to absurd results. Rather than
direct the parties to get specific shares, the property may be
ordered sold and the proceeds will be distributed among the co-
owners.
DISCUSSION
EXAMPLE:
In a partition of a co-owned property, the land is 100 square meters
and there are 10 co-owners: 100 square meters divided by 10 then
each co-owner will be entitled to 10 square meters only. What will
happen to the land, how will you use the land? That is not practical.
What would be practicable is not a physical division of the property,
instead you can sell the property and then you can divide the
proceeds among the then co-owners. Here the court, rather than
directing the parties to get specific shares, the court will order the
property to be sold and the proceeds will be distributed among the
several co-owners.
Section 10. Execution of judgments for specific act. —
(c) Delivery or restitution of real property. — The officer shall
demand of the person against whom the judgment for the
delivery or restitution of real property is rendered and all
persons claiming rights under him to peaceably vacate the
property within three (3) working days, and restore possession
thereof to the judgment obligee, otherwise, the officer shall
oust all such persons therefrom with the assistance, if
necessary, of appropriate peace officers, and employing such
means as may be reasonably necessary to retake possession,
and place the judgment obligee in possession of such property.
Any costs, damages, rents or profits awarded by the judgment
shall be satisfied in the same manner as a judgment for money.
(13a) xxx
DISCUSSION
Q: If the judgment orders the defendant to deliver or return a real
property (parcel of land), how do you execute that decision?
A: First, the sheriff shall first demand from the defendant to vacate
the property peacefully within three working days. The defendant
214
will be given that chance, then return the possession to the
judgment obligee (the person who won the in the case).
Q: What happens if the defendant refuses to peacefully vacate the
property? For example, he will padlock the gate in that land or put
a barricade there. How can you execute that judgment?
A: The rule says: “Otherwise, the officer shall oust such person
therefrom with the assistance, if necessary, of appropriate peace
officers.”
Usually, the sheriff will really ask for assistance from the police
since it is probable that there will be violent reaction.
Scenario witnessed by Atty. YY in the implementation of a writ of
execution: The defendants are really tough to handle, the
defendants will throw rocks or hot water at the sheriff and the
police. The sheriff will usually ask for the assistance of the police.
“employing such means as may be reasonably necessary to retake
possession, and place the judgment obligee in possession of such
property…”
Actually, you can use force but only necessary. Referring to the
situation I mentioned, they cannot be persuaded by words, they’re
already throwing rocks.
Q: How do you convince them?
A: You can use force. Note that the usual guidance by the police is
exert maximum tolerance, if there is no violence, they cannot exert
force first.
The hardest situation is when there are already buildings and
houses on the land. It is easier to oust the defendants if the land is
barren – they will usually leave the land eventually or physically
remove them from the property. However, if there are houses
already, they will simply refuse to leave the premises.
Q: How do you retake the possession?
A: Demolish the properties therein but that is another mode
because we cannot just also directly demolish the property the
buildings or structures without a writ demolition.
Again, if the land is barren, just use reasonable force and if there
are structures in the property already, you have to obtain a writ of
demolition.
DELIVERY OR RESTITUTION OF REAL PROPERTY (BAR 1995)
An example of this kind of judgment is one rendered in an action
for ejectment. In such a case, the officer shall demand from the
judgment obligor to vacate peaceably within three (3) working
days, and restore possession of the property to the judgment
obligee (Sec. 10[c], Rule 39, Rules of Court).
Note that in both the Rules and jurisprudence, the writ of execution
in ejectment cases cannot be enforced on the same date the sheriff
receives the writ. The three (3)-day notice is required (MANUEL vs.
ESCALANTE, G.R. No. 134141, August 13, 2002) even if judgment
against the defendant is immediately executory under Sec. 19 of
Rule 70.
Immediacy of execution does not mean instant execution. When a
decision is immediately executory it does not mean dispensing with
the required three (3)-day notice. A sheriff who enforces the writ
without the required notice is running afoul with the rules
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
(MENDOZA vs. DORONI, A.M. No. P-04-1872, January 31,2006;
MAÑALAC vs. BIDAN, A.M. No. P-18-3875, October 03, 2018)
o As mentioned by the SC, you must give them three
working days notice. For example, if the demand to
vacate is served today, it is not allowed that they must
vacate on the same day immediately. It is not automatic.
If you made them vacate immediately before the sheriff,
you can be held administratively.
After the lapse of the period given and the judgment obligor refuses
to vacate, then the sheriff may enforce the writ by ousting the
judgment obligor and all the persons claiming a right under him,
with the assistance, if necessary, of appropriate peace officers, and
employing such means as may be reasonably necessary to retake
possession and place the judgment oblige in possession of such
property (Sec. 10[e], Rule 39, Rules of Court). This provision
authorizes the bodily removal of the defendant and his belongings
(MENDOZA vs. DORONI, supra).
o Bodily removal of the defendant is also allowed.
CONTEMPT IS NOT A REMEDY
The mere refusal or unwillingness of the judgment debtor to vacate
the property is not a sufficient ground to hold him in contempt. The
writ of possession was not directed to the judgment debtor but to
the sheriff who was directed to deliver the property to the
prevailing party. As the writ did not command the judgment debtor
to do anything, he cannot be guilty of the acts described in Rule 71
which is "disobedience of or resistance to a lawful writ, process,
order, judgment or command of any court." The proper procedure
is not for the court to cite the debtor in contempt. What the officer
should do is to dispossess him of the property and if after the
dispossession, the judgment debtor should execute acts of
ownership or possession or in any manner disturb the possession
of the judgment creditor, then and only then may he be punished
for contempt (PASCUA vs. HEIRS OF SEGUNDO SIMEON, 161 SCRA
1; BARRETE vs. AMILA, 230 SCRA219).
DISCUSSION
Q: Can you place the defendants in contempt? For example, there
is an order directing him to vacate the property peacefully pursuant
to the judgment. However, despite the demand to vacate by the
sheriff, the defendant did not vacate the property. Can the
defendant be cited indirect contempt of court pursuant to Rule 71?
A: Contempt is not a remedy because the writ of possession and
the writ of execution is not directed to the judgment debtor. It is
directed to the sheriff. The sheriff is directed to deliver the property
to the prevailing party.
The judgment debtor is only to vacate the property and the sheriff
is to deliver the property. For that act alone, the defendant cannot
be cited in contempt. However, if the defendant has already been
dispossessed of the property and after the dispossession, the
judgment debtor executes acts of ownership or possession or in any
manner disturb the possession of the judgment creditor then in
that particular example, he may be punished for contempt. This is
as discussed in the case of PASCUA vs. HEIRS OF SEGUNDO SIMEON.
ABINUJAR vs. COURT OF APPEALS
243 SCRA 531
FACTS: The plaintiff filed a case for unlawful detainer against the
Abinujar spouses for the latter to vacate their house in Manila.
When the case was going on, the parties executed a compromise
215
agreement which became the basis of the judgment by the
court.
The agreement stated that the Abinujar spouses shall pay the
plaintiffs the amount specifically agreed upon: P50,000 on
January 31; P10,000 on February 28; P10,000 on March 31, etc.
until September 30. It further states that failure on the part of
the Abinujar spouses to pay three (3) consecutive payments, the
plaintiffs shall be entitled to a writ of execution.
After three (3) months, the plaintiffs filed a motion for execution
on the ground that the Abinujars failed to pay the three
installments. The trial court granted the motion and the notice
to the defendant to voluntarily vacate the premises was served
on the Abinujars. The Abinujars attacked the validity of the
sheriff’s notice to vacate by way of enforcing the compromise
judgment. They maintained that their obligation is monetary
and therefore you should apply Section 9 – you collect but do
not eject us. The plaintiffs argued that what is applicable is
Section 10 on ejectment because this is an unlawful detainer
case.
ISSUE: Which section shall be applied – Section 9 or Section 10?
HELD: When the parties entered into a compromise agreement,
the original action for ejectment was set aside and the action
was changed to a monetary obligation. A perusal of the
compromise agreement signed by the parties and approved by
the inferior court merely provided that in case the Abinujars
failed to pay three monthly installments, the plaintiffs would be
entitled to a writ of execution, without specifying what the
subject of execution would be. Said agreement did not state that
Abinujars would be evicted from the premises subject of the suit
in case of any default in complying with their obligation
thereunder. This was the result of the careless drafting thereof
for which only plaintiffs were to be blamed.
As Abinujar’s obligation under the compromise agreement as
approved by the court was monetary in nature, plaintiffs can
avail only of the writ of execution provided in Section 9, and not
that provided in Section 10.
Section 10. Execution of judgments for specific act. —
(d) Removal of improvements on property subject of
execution. — When the property subject of the execution
contains improvements constructed or planted by the judgment
obligor or his agent, the officer shall not destroy, demolish or
remove said improvements except upon special order of the
court, issued upon motion of the judgment obligee after the
hearing and after the former has failed to remove the same
within a reasonable time fixed by the court. (14a)
DISCUSSION
For example, the judgment is for the delivery or restitution of the
plaintiff but the property has improvement existing on the land,
you cannot effect destruction, demolition or removal except upon
special order of the court. It would be a writ of demolition or an
order to break certain properties. There should be an order and
issued upon motion and after hearing. For example, if they do not
vacate the land even if three days had already lapsed and you want
it already demolished, if you are the plaintiff, you need file a motion
for the issuance of writ of demolition. There will be a hearing on
that motion. The court will give them another opportunity to
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
remove. After that if they still do not remove, that is when you can
execute the writ of demotion.
REMOVAL OF IMPROVEMENTS
When the property subject of execution contains improvements
constructed thereon by the judgment obligor or his agent, the
officer shall not demolish, destroy or remove them.
These acts may only be done by the officer upon a special order by
the court which will be issued upon motion by the judgment obligee
and after hearing and only after the judgment obligor fails to
remove them within a reasonable time fixed by the court (Sec.
10[d], Rule 39, Rules of Court).
ESPANTO vs. ATTY. ERWIN V. BELLEZA
(A.C. No. 10756 (Formerly CBD Case No. 11-3218), February
21, 2018)
Before the removal of an improvement must take place, there
must be a special order, hearing and reasonable notice to
remove, pursuant to Section 10(d), Rule 39 of the Rules of Court.
The above-stated rule is clear and needs no interpretation. If
demolition is necessary, there must be a hearing on the motion
filed and with due notices to the parties for the issuance of a
special order of demolition.
The requirement of a special order of demolition is based on the
rudiments of justice and fair play. It frowns upon arbitrariness
and oppressive conduct in the execution of an otherwise
legitimate act. It is an amplification of the provision of the Civil
Code that every person must, in the exercise of his rights and in
the performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith. Furthermore, it
appeared that when the demolition was made on February 14,
2011, the case has not yet attained finality as evidenced by a
certification issued by Clerk of Court Melba E. Lagunzad of the
13th MCTC of MacArthur-Mayorga, MacArthur, Leyte on May
19, 2011
Section 10. Execution of judgments for specific act. —
e) Delivery of personal property. — In judgment for the delivery
of personal property, the officer shall take possession of the
same and forthwith deliver it to the party entitled thereto and
satisfy any judgment for money as therein provided. (8a)
DISCUSSION
If the judgement is for the delivery of personal property, what will
happen? How do you execute it? For example, the defendant is
ordered to return the motorcycle to the plaintiff. What will
happen? The sheriff will take possession and deliver it to the party
entitled.
Section 11. Execution of special judgments. — When a
judgment requires the performance of any act other than those
mentioned in the two preceding sections, a certified copy of the
judgment shall be attached to the writ of execution and shall be
served by the officer upon the party against whom the same is
rendered, or upon any other person required thereby, or by law,
to obey the same, and such party or person may be punished
for contempt if he disobeys such judgment. (9a)
216
DISCUSSION
Q: What do we mean by a special judgment?
A: According to the rule there are 2 types judgments, we have
special judgment and ordinary judgment.
When you say ordinary judgment, that’s what we discussed in
Section 9 and Section 10. It’s either for the payment of money or
for the delivery of real or personal property.
Another judgment is called special judgment. Special Judgment is a
judgment which requires the defendant to perform an act other
than payment of money or delivery of property. It refers to a
specific act which a party or person must personally do because his
personal qualifications and circumstances have been taken into
consideration.
For example, Mandamus, you are requiring the performance of a
ministerial act. Nobody else can do that, only the officer in charge
with the duty of performing that ministerial act.
The main difference between the two is how you execute that
judgment. If it is an ordinary judgment, you cannot punish the
person for contempt. Like the debtor, who refuses to pay or he
refuses to vacate the property. Ordinarily, you cannot punish him
for contempt if he disobeys the judgment. But if it’s a special
judgment, you can punish him for contempt.
NOTES:
THERE ARE TWO TYPES OF JUDGMENT UNDER THE LAW:
(1) SPECIAL and
(2) ORDINARY.
• An Ordinary Judgment- one which orders the defendant
to pay money (Section 9) or to deliver real and personal
property (Section 10).
• SPECIAL JUDGMENT - a judgment which requires the
defendant to perform an act other than payment of
money or delivery of property. It refers to a specific act
which a party or person must personally do because his
personal qualifications and circumstances have been
taken into consideration.
MAIN DIFFERENCE BETWEEN AN
ORDINARY AND A SPECIAL JUDGMENT
A special judgment may be enforced by contempt if the defendant
refuses to comply with the judgment. If it is an ordinary judgment
and the defendant refuses to comply, the refusal is not a ground for
contempt.
For instance, under Section 9, if the judgment-debtor refuses to pay
his debt, you cannot cite him in contempt. Besides, under the
Constitution, no person shall be imprisoned for non-payment of
debt. The correct procedure under Section 9 is you look for
properties of the defendant and have it levied. The property will
then be sold and the proceeds applied to the debt. You cannot send
the debtor to jail.
Furthermore, under Section 10, if a squatter refuses to vacate the
property, he cannot be cited in contempt. All the sheriff can do is
to dispossess him of the property and if after the dispossession, the
judgment debtor, the squatter, should execute acts of ownership
or possession or in any manner disturb the possession of the
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
judgment creditor, then and only then may he be punished for
contempt.
EXAMPLE OF SPECIAL JUDGEMENT
The best example here is usurpation of government office. The
rightful occupant of an office files an action for quo warranto to
compel the usurper to leave his office. Suppose that the judgment
is in favor of the plaintiff and the defendant will be ordered to step
down or vacate the position. Such judgment is a special judgment
because it does not order the payment of money or the delivery of
property.
Under Section 11, if defendant is ordered to vacate his office and
he refuses, the plaintiff can have him arrested and brought to jail
because that is a special judgment which can be enforced by
contempt.
Correlate this with Section 9 of Rule 65 on Special Civil Actions for
Certiorari, Prohibition and Mandamus, to wit:
Rule 65, Sec 9. Service and enforcement of order or judgment.
- A certified copy of the judgment rendered in accordance with
the last preceding section shall be served upon the court, quasi-
judicial agency, tribunal, corporation, board, officer or person
concerned in such manner as the court may direct, and
disobedience thereto shall be punished as contempt. An
execution may issue for any damages or costs awarded in
accordance with section 1 of Rule 39. (9a)
A judgment under Rule 65, if not complied with, is punishable by
contempt.
READ:
SIA vs. ARCENAS, ET. AL. (G.R. Nos. 209672-74, January 14, 2015)
NATIONAL HOME MORTGAGE FINANCE CORPORATION vs.
ABAYARI, ET AL.
G.R. No. 166508, October 2, 2009
“Mandamus is a special remedy to compel the court to execute
a final judgment.
A final judgment of the court in an action for mandamus is a
special judgment.”
A favorable judgment rendered in a special civil action for
mandamus is in the nature of a special judgment. As such, it
requires the performance of any other act than the payment of
money or the sale or delivery of real or personal property the
execution of which is governed by Section 11, Rule 39 of the
Rules of Court.
While the April 17, 2001 Decision of the trial court ordered
petitioner to pay the benefits claimed by respondents, it by no
means ordered the payment of a specific sum of money and
instead merely directed petitioner to extend to respondents the
benefits under R.A. No. 6758 and its implementing rules. Being
a special judgment, the decision may not be executed in the
same way as a judgment for money handed down in an ordinary
civil case governed by Section 9, Rule 39 of the Rules Court which
sanctions garnishment of debts and credits to satisfy a
monetary award. Garnishment is proper only when the
judgment to be enforced is one for payment of a sum of money.
217
It cannot be employed to implement a special judgment such as
that rendered in a special civil action for mandamus.
Section 12. Effect of levy on execution as to third person. —
The levy on execution shall create a lien in favor of the judgment
obligee over the right, title and interest of the judgment obligor
in such property at the time of the levy, subject to liens and
encumbrances then existing. (16a)
DISCUSSION
For example, if that property was already subject of a levy then later
on it was mortgaged by the judgement obligor, the right of the
judgement obligee over that property is superior to that
subsequent mortgagee. Now, if the mortgage was done prior to the
levy and then the mortgage was recorded in the Registry of
Properties, of course the prior mortgagee is more superior. But, if
the mortgage was not annotated on the title of the land, then it will
not be binding against third persons. For example, the title is clean
and it is levied by the Sheriff, even if in reality the property was
really mortgaged, under the Land Registration Law, the judgement
obligee is not affected on the prior mortgage because there was no
annotation. He is not charged with the notice of the lien or
encumbrance which does not appear in the face of the title.
Section 13. Property exempt from execution. — Except as
otherwise expressly provided by law, the following property, and
no other, shall be exempt from execution:
(a) The judgment obligor's family home as provided by law, or
the homestead in which he resides, and land necessarily used in
connection therewith;
DISCUSSION
These are the properties that you cannot execute, you cannot levy,
and you cannot garnish because, it is also provided for under the
Family Code.
(a) The judgment obligor's family home as provided by law,
or the homestead in which he resides, and land
necessarily used in connection therewith.
FAMILY HOME
The family home, constituted jointly by the husband and the wife
or by an unmarried head of a family, is the dwelling house where
they and their family reside, and the land on which it is situated
(Article 152, Family Code). The family home is deemed constituted
on a house and lot from the time it is occupied as a family residence.
From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home continues
to be such and is exempt from execution, forced sale or
attachment, as a general rule (Article 153, Family Code)
EXCEPTIONS: WHEN HOUSE CONSTITUTED AS FAMILY HOME IS
NOT EXEMPT FROM EXECUTION
1. Under Article 155 of the Family Code, the family home shall be
exempt from execution, forced sale or attachment except:
a. For nonpayment of taxes;
b. For debts incurred prior to the constitution of the family
home;
c. For debts secured by mortgages on the premises before
or after such constitution; and
d. For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
furnished material for the construction of the building.
(243a)
Correlate this with the last paragraph of Rule 39, Section 13 and the
second sentence of Article 156 of the Family Code:
Rule 39, Section 13. XXX But no article or species of property
mentioned in this section shall be exempt from execution issued
upon a judgment recovered for its price or upon a judgment of
foreclosure of a mortgage thereon. (12a)
Art. 156. The family home must be part of the properties of the
absolute community or the conjugal partnership, or of the
exclusive properties of either spouse with the latter's consent.
It may also be constituted by an unmarried head of a family on
his or her own property. Nevertheless, property that is the
subject of a conditional sale on installments where ownership is
reserved by the vendor only to guarantee payment of the
purchase price may be constituted as a family home.
The first provision is actually in harmony with Article 155. Section
13 covers two exceptions, i.e., for its price (to laborers, etc.) and
mortgage thereon (debts secured by mortgages on the premises
before or after such constitution).
2. When the value of the family home exceeds the amount
exempted by law under the conditions specified by Article 157 of
the Family Code, in relation to Article 160 (See separate discussion)
Art. 157. The actual value of the family home shall not exceed,
at the time of its constitution, the amount of the three hundred
thousand pesos in urban areas, and two hundred thousand
pesos in rural areas, or such amounts as may hereafter be fixed
by law.
In any event, if the value of the currency changes after the adoption
of this Code, the value most favorable for the constitution of a
family home shall be the basis of evaluation.
For purposes of this Article, urban areas are deemed to include
chartered cities and municipalities whose annual income at least
equals that legally required for chartered cities. All others are
deemed to be rural areas. (231a)
DISCUSSION
In taxation, there is a value in the family home which is deducted
from the value of the estate. So here, 300,000 pesos in urban areas
and 200,000 pesos in rural areas. If the value of your family home
is 10 Million, then of course, it can be subject to execution. What
will be the subject to exemption is 300,000 or 200,000 as the case
may be depending on where the family home is located, either rural
or urban.
3. When none of the beneficiaries of the family home are residing
therein and thus ceases to be a family home or any other cause
that would make the family home lose its character as such;
4. When the alleged family home is actually a second, third, etc.
family home (Article 161, Family Code);
Art. 161. For purposes of availing of the benefits of a family
home as provided for in this Chapter, a person may constitute,
or be the beneficiary of, only one family home
218
REMEDY OF AN ORDINARY CREDITOR TO EXECUTE UPON A
FAMILY HOME
Art. 160. When a creditor whose claims is not among those
mentioned in Article 155 obtains a judgment in his favor, and he
has reasonable grounds to believe that the family home is
actually worth more than the maximum amount fixed in Article
157, he may apply to the court which rendered the judgment for
an order directing the sale of the property under execution. The
court shall so order if it finds that the actual value of the family
home exceeds the maximum amount allowed by law as of the
time of its constitution. If the increased actual value exceeds the
maximum allowed in Article 157 and results from subsequent
voluntary improvements introduced by the person or persons
constituting the family home, by the owner or owners of the
property, or by any of the beneficiaries, the same rule and
procedure shall apply.
At the execution sale, no bid below the value allowed for a family
home shall be considered. The proceeds shall be applied first to
the amount mentioned in Article 157, and then to the liabilities
under the judgment and the costs. The excess, if any, shall be
delivered to the judgment debtor. (247a, 248a)
PROCEDURE:
1. An ordinary creditor (one who is not covered under Article 155)
who believes that the family home is worth more than the
maximum amount fixed under Article 157 may apply to (or file a
motion with) the court that rendered judgment for an order
directing the sale of the property under execution;
2. As in any other motion, there must be notice to the adverse
party of the hearing, giving the latter the opportunity to oppose
the motion;
3. The court will issue the order if it finds that the application of the
judgment creditor is meritorious (the actual value of the family
home exceeds the maximum amount allowed by law as of the time
of its constitution);
4. At the execution sale, no bid below the value allowed for a family
home shall be considered.
5. The proceeds shall be distributed as follows:
A. Payment shall first be made to the judgment debtor to
cover the value of the family home as allowed under
Article 157;
B. The remainder after deducting the allowable value under
Article 157 will then be applied to the monetary award in
the judgment and to the legal fees and costs;
C. Any excess will be delivered to the judgment debtor.
Take note of this procedure, for example you are the creditor and
you believe that the debtor has assets which can be used to pay off
the obligation. For example, he is contending that he has a house
but it is exempt from execution because it is a family home. But you
think that the worth of that family home is more than the amount
which is exempted by law. So, what would be the procedure. So,
take note of this.
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

ILLUSTRATION: creditor will not get anything because the 300,000 will be given to
the judgment debtor. He can retain that.
AMOUNT OF 160,000 160,000 160,000
DEBT AND
So why would we sell the house for 300,000 when he can still retain
COSTS
the entire proceeds or amount that was bid? The sale of the family
home will NOT happen here.
BID 300,000 400,000 500,000
Second Situation: Again, the same amount of debt. 160,000.
APPLY TO:
However, here someone bid and was sold for 400,000. So, what will
happen?
1. Value under 300,000 300,000 300,000
157
The 300,000 will be given to the judgment debtor.
2. Liabilities 0 100,000 160,000
The 100,000 will be the only amount or proceeds to be paid to the
and costs
judgment creditor. Meaning, the obligation has not yet been fully
satisfied. Out of 160,000, only 100,000 are paid. There’s still 60,000
3. Excess to 0 0 40,000
remaining to be paid, if the judgment debtor still has other
debtor
properties, then proceed against those other properties. Of course,
that is ‘if’ there are other properties, then the family home should
NOTES: The property The debt is only
not be proceeded against yet. We should proceed against the other
should not have partially paid.
properties first. But, if that’s the only remaining property, the
been ordered The remedy of
obligation really will not be fully satisfied.
sold. To satisfy the obligee is to
the debt, there have other
Third Situation: The same amount of debt. 160,000. Here, someone
must be properties of the
bid 500,000. Out of that 500,000 proceeds from sale, we will give
another auction obligor sold. This
to the judgment debtor the 300,000 because that amount is the
sale that must is clearly
value of the family home that is exempt from execution under the
be made. inequitable to
law. How about the excess? So, since the debt is only 160,000, out
the judgment
of the 200,000 the 160,000 shall be paid to the judgment creditor.
Conversely, the obligor.
Now, there’s still a balance of 40,000. To whom shall it be given? To
creditor may
the judgment debtor.
bid (see Section Note that if
21) the there are other
So, this is how you dispose, if for example, the family home is sold
minimum properties, the
or proceeded against upon execution on the premise that the value
amount (value family home
exceeds those exempted under the law.
under Art. 157) must be spared
because it as much as
would not be possible. PROPOSAL
logical for him
to overbid just To avoid absurd and inequitable results as well as to ensure that
so he has the execution of the family home is not just a clever ruse to obtain
something to valuable property at a very low price and thereby deprive
pay himself. beneficiaries of the family home thereof, Article 160 should be
amended to read:

DISCUSSION
We have here a situation that the judgment obligee (creditor) is
asserting that your family home should be used in payment of the
debt. But of course, you will oppose that, but he says that your
family home is more than the value exempted by law.
Look at the 2nd column. The debt is 160,000. Now, under the law,
if the family home is to be sold (for bidding) it should not be sold or
the bid should not go below the value or amount mentioned under
Article 157.
We are assuming here that the family home is located in an urban
area. So, the amount exempted in an urban area is 300,000. So,
that’s the value of the family home that cannot be covered by
execution. You can retain that.
At the execution sale, no bid below the value allowed for a family
home plus an amount sufficient to cover liabilities and costs shall
be considered.
Section 13. Property exempt from execution. — Except as
otherwise expressly provided by law, the following property,
and no other, shall be exempt from execution:
(b) Ordinary tools and implements personally used by
him in his trade, employment, or livelihood;
PENTAGON SECURITY vs. JIMENEZ
192 SCRA 492

First situation: But again, the creditor is saying that the value of FACTS: The Pentagon Security and Investigation Agency (PSIA) is a
your house is more than 300,000. During the bidding, minimum bid security agency. Because of a money judgment against the agency
is 300,000 and it is the one and only bid. So, what will happen now in a labor case, the sheriff levied all the firearms of the agency. PSIA
if someone bid 300,000? Actually, in that case, the judgment claimed that the firearms are exempt from execution under
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
paragraph [b] since they are tools and implements used by the
agency in its trade, employment or livelihood because a security
agency cannot operate without firearms.
ISSUE: Are the firearms exempt from execution?
RULING: NO. The firearms owned by PSIA are not covered by the
exemption.
The term ‘tools and implements’ refers to instruments of
husbandry or manual labor needed by an artisan craftsman or
laborer to obtain his living. Here, PSIA is a business enterprise. It
does not use the firearms personally, but they are used by its
employees. Not being a natural person, petitioner cannot claim
that firearms are necessary for its livelihood.
It would appear that the exemption contemplated by the provision
involved is personal, available only to a natural person, such as a
dentist’s dental chair. If properties used in business are exempt
from execution, there can hardly be an instance when a judgment
claim can be enforced against the business entity.
However, for security reasons, and to prevent the possibility that
the firearms to be sold at the execution sale may fall into the hands
of lawless and subversive elements, the sale at public auction
should be with the prior clearance and under supervision of the
PNP.
DISCUSSION
Take note that in this case, the SC said that when you are referring
to tools and implements used by the judgment debtor in its trade
employment or livelihood, we are referring to a NATURAL PERSON.
In this case of pentagon, are these firearms of the security agency
exempt from execution on the premise that they are tools and
implements? The Supreme Court said, No.
When we say “tools and implements” we refer to instruments of
husbandry or manual labor needed by an artisan/craftsman or
laborer to obtain his living. So here, this should be used personally.
But here, NOT BEING A NATURAL PERSON, the agency cannot claim
that the firearms are necessary for its livelihood. So, this exemption
will be available only to a NATURAL PERSON.
Section 13. Property exempt from execution. — Except as
otherwise expressly provided by law, the following property, and
no other, shall be exempt from execution:
XXX
(c) Three horses, or three cows, or three carabaos, or other beasts
of burden, such as the judgment obligor may select necessarily
used by him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary personal use,
excluding jewelry;
(e) Household furniture and utensils necessary for housekeeping,
and used for that purpose by the judgment obligor and his family,
such as the judgment obligor may select, of a value not exceeding
one hundred thousand pesos;
(f) Provisions for individual or family use sufficient for four months;
(g) The professional libraries and equipment of judges, lawyers,
220
physicians, pharmacists, dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not exceeding three hundred
thousand pesos in value;
(h) One fishing boat and accessories not exceeding the total value
of one hundred thousand pesos owned by a fisherman and by the
lawful use of which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment
obligor for his personal services within the four months preceding
the levy as are necessary for the support of his family;
SALARIES AND WAGES
Take note that there is a limitation on what salaries and wages are
exempt – only those earned within the four (4) months preceding
the levy.
Correlate this with:
Section 40. Order for application of property and income to
satisfaction of judgment. — The court may order any property of
the judgment obligor, or money due him, not exempt from
execution, in the hands of either himself or another person, or of a
corporation or other juridical entity, to be applied to the
satisfaction of the judgment, subject to any prior rights over such
property.
If, upon investigation of his current income and expenses, it
appears that the earnings of the judgment obligor for his personal
services are more than necessary for the support of his family, the
court may order that he pay the judgment in fixed monthly
installments, and upon his failure to pay any such installment when
due without good excuse, may punish him for indirect contempt.
(42a)
“MONEY DUE HIM”
Under Section 40, it appears that the 4-month limit does not apply
because it even applies to salary yet to be received (money due
him). Take note also that under letter (i), if the four-month salaries
or wages is more than necessary for the support of his family, the
exemption appears to be reducible.
Section 13. Property exempt from execution. — Except as
otherwise expressly provided by law, the following property, and
no other, shall be exempt from execution:
xxx
(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 in this section shall
be exempt from execution issued upon a judgment recovered for
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
its price or upon a judgment of foreclosure of a mortgage thereon.
(12a)
Section 14. Return of writ of execution. — The writ of execution
shall be returnable to the court issuing it immediately after the
judgment has been satisfied in part or in full. If the judgment
cannot be satisfied in full within thirty (30) days after his receipt of
the writ, the officer shall report to the court and state the reason
therefor. Such writ shall continue in effect during the period within
which the judgment may be enforced by motion. The officer shall
make a report to the court every thirty (30) days on the
proceedings taken thereon until the judgment is satisfied in full, or
its effectivity expires. The returns or periodic reports shall set forth
the whole of the proceedings taken, and shall be filed with the
court and copies thereof promptly furnished the parties. (11a)
LIFETIME OF THE WRIT OF EXECUTION (BAR 1995)
The writ shall continue in effect during the period within which the
judgment may be enforced by motion (Sec. 14, Rule 39, Rules of
Court). Hence, the writ is enforceable within the five-year period
from entry of judgment as provided for in Sec. 6 of Rule 39 because
within that period, the writ may be enforced by motion. Under the
former Sec. 11 of Rule 39 of the old Rules, the lifetime of the writ
was sixty (60) days from the receipt of the writ by the officer
required to enforce it.
Section 15. Notice of sale of property on execution. — Before
the sale of property on execution, notice thereof must be given
as follows:
(a) In case of perishable property, by posting written notice of
the time and place of the sale in three (3) public places,
preferably in conspicuous areas of the municipal or city
hall, post office and public market in the municipality or city
where the sale is to take place, for such time as may be
reasonable, considering the character and condition of the
property;
(b) In case of other personal property, by posting a similar
notice in the three (3) public places above-mentioned for
not less than five (5) days;
(c) In case of real property, by posting for twenty (20) days in
the three (3) public places abovementioned a similar notice
particularly describing the property and stating where the
property is to be sold, and if the assessed value of the
property exceeds fifty thousand (P50,000.00) pesos, by
publishing a copy of the notice once a week for two (2)
consecutive weeks in one newspaper selected by raffle,
whether in English, Filipino, or any major regional language
published, edited and circulated or, in the absence thereof,
having general circulation in the province or city;
(d) In all cases, written notice of the sale shall be given to the
judgment obligor, at least three (3) days before the sale,
except as provided in paragraph (a) hereof where notice
shall be given the same manner as personal service of
pleadings and other papers as provided by section 6 of Rule
13.
The notice shall specify the place, date and exact time of the sale
which should not be earlier than nine o'clock in the morning and
221
not later than two o'clock in the afternoon. The place of the sale
may be agreed upon by the parties. In the absence of such
agreement, the sale of the property or personal property not
capable of manual delivery shall be held in the office of the clerk
of court of the Regional Trial Court or the Municipal Trial Court
which issued the writ of or which was designated by the
appellate court. In the case of personal property capable of
manual delivery, the sale shall be held in the place where the
property is located. (18a)
Section 16. Proceedings where property claimed by third
person. — If the property levied on is claimed by any person
other than the judgment obligor or his agent, and such person
makes an affidavit of his title thereto or right to the possession
thereof, stating the grounds of such right or title, and serves the
same upon the officer making the levy and copy thereof, stating
the grounds of such right or title, and a serves the same upon
the officer making the levy and a copy thereof upon the
judgment obligee, the officer shall not be bound to keep the
property, unless such judgment obligee, on demand of the
officer, files a bond approved by the court to indemnity the
third-party claimant in a sum not less than the value of the
property levied on. In case of disagreement as to such 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
therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond.
The officer shall not be liable for damages for the taking or
keeping of the property, to any third-party claimant if such bond
is filed. Nothing herein contained shall prevent such claimant or
any third person from vindicating his claim to the property in a
separate action, or prevent the judgment obligee from claiming
damages in the same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious claim.
When the writ of execution is issued in favor of the Republic of
the Philippines, or any officer duly representing it, the filing of
such bond shall not be required, and in case the sheriff or levying
officer is sued for damages as a result of the levy, he shall be
represented by the Solicitor General and if held liable therefor,
the actual damages adjudged by the court shall be paid by the
National Treasurer out of such funds as may be appropriated for
the purpose. (17a)
PROCEEDINGS WHEN PROPERTY LEVIED UPON IS CLAIMED BY
THIRD PERSONS TERCERIA
A person claiming a property levied upon may execute an affidavit
of his title or right of possession over the property. Such affidavit
must state the grounds of such right or title. The affidavit shall be
served upon the officer making a levy and a copy thereof must also
be served upon the judgment obligee (Sec. 16, Rule 39, Rules of
Court). This remedy of the claiming party is also called "TERCERIA".
DISCUSSION
Supposing in the implementation of the writ of execution, the
sheriff levies upon properties which were already sold previously
by the judgment debtor or obligor.
For example: The land levied was upon by the sheriff. However
when he went to the property, it was already occupied by X. X then
showed a deed of sale and says that the property was already sold
to him even before the case was filed.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Q: If you are X, what is your remedy?
A: X has a lot of remedies under the law and Section 16 is one of
them. The remedy of Terceria or third-party claim. In this case, X
shall execute an affidavit which states his title to the possession of
the property saying how he acquired his title, possession or right.
He will serve this affidavit upon the sheriff who makes the levy.
Once this Terceria or third-party claim is filed, the Sheriff shall not
be bound to keep the property because he might charged for that,
criminally or administratively. Unless the judgment
obligee/plaintiff, 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. The claimant will post a bond to answer for any
damages that the third-party claimant may suffer by reason of the
execution. This is because it might turn out that he might actually
be the true owner and still you proceeded with the levy. The bond
that was posted by plaintiff will answer for the damages of the
third-party claimant.
If there’s such a bond filed, the sheriff officer shall no longer liable
for the damages for the taking or keeping the property. If he insists
on levying on the property, he will not be liable because a bond was
earlier filed.
As previously discussed, the third-party claim or terceria is not the
only remedy available to the third person who alleges that his
property is wrongfully levied on by the sheriff. The rules says that:
“nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property in a
separate action, or prevent the judgment obligee from
claiming damages in the same or a separate action against a
third-party claimant who filed a frivolous or plainly spurious
claim.”
SUMMARY OF REMEDIES
CHING vs. COURT OF APPEALS
G.R. No. 124642, February 23, 2004
The sheriff may attach only those properties of the defendant
against whom a writ of attachment has been issued by the court.
1. When the sheriff erroneously levies on attachment and seizes
the property of a third person in which the said defendant holds
no right or interest, the superior authority of the court which
has authorized the execution may be invoked by the aggrieved
third person in the same case.
STEPS:
a. Upon application of the third person, the court shall
order a summary hearing for the purpose of
determining whether the sheriff has acted rightly or
wrongly in the performance of his duties in the
execution of the writ of attachment, more specifically
if he has indeed levied on attachment and taken hold
of property not belonging to the plaintiff;
b. If so, the court may then order the sheriff to release
the property from the erroneous levy and to return
the same to the third person. In resolving the motion
of the third party, the court does not and cannot pass
upon the question of the title to the property with any
character of finality. It can treat the matter only
insofar as may be necessary to decide if the sheriff has
acted correctly or not.
222
c. If the claimant's proof does not persuade the court of
the validity of the title, or right of possession thereto,
the claim will be denied by the court.
2. The aggrieved third party may also avail himself of the remedy
of "terceria" by executing an affidavit of his title or right of
possession over the property levied on attachment and serving
the same to the office making the levy and the adverse party.
3. Such party may also file an action to nullify the levy with
damages resulting from the unlawful levy and seizure, which
should be a totally separate and distinct action from the former
case.
The abovementioned remedies are cumulative and anyone of
them may be resorted to by one third-party claimant without
availing of the other remedies.
DISCUSSION
The case of Ching v CA summarizes the remedies available to a third
party whose property was wrongfully levied on by the officer or
sheriff in the implementation of a writ of execution because:
GR: the sheriff may attach only those properties of the
defendant against whom a writ of attachment has been
issued by the court.
Q: What is the remedy of the third person if his property was
wrongfully levied upon by the sheriff with the belief that the
property is that of the defendant’s?
A:
1. When the sheriff erroneously levies on attachment and seizes
the property of a third person in which the said defendant
holds no right or interest, the superior authority of the court
which has authorized the execution may be invoked by the
aggrieved third person in the same case.
If it is really X’s property and not of defendant’s, X can invoke
the power of the court which authorized the execution. He can
move to quash the writ of execution. He can appear in the case
and move to quash the writ of execution on the ground that
the property is not owned by the defendant.
In this remedy, the third person may either quash the writ of
execution if that is the only property that was executed or to
exclude the property from the execution. Here, upon motion
of this third person, the court shall order a summary hearing
to determine if the sheriff acted rightly or wrongly in the
performance of his duties and to determine if the property
levied upon really belongs to the defendant or the third
person.
If the court finds that there is ground to release the property
because it appears that the property does not belong to the
defendant, that could be ordered by the court. However, in
resolving the motion and in ordering the release of the
property, the court actually does not finally determine the
character or the title over the property it will only be a
provisional determination or only for the purpose of
determining if the sheriff acted correctly or wrongly. If
released by the court and the property will not be included in
the execution, it doesn’t mean that X cannot be sued. The
ownership can still be questioned in a separate proceeding if
the plaintiff insists that the defendant owns the property. If
the proof presented by a third-party claimant is insufficient to
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
convince the court, then the court can deny the motion of the
third person to exclude the property from the execution.
2. The second remedy available aside from filing a motion in the
same case is to avail the remedy of “Terceria” or third-party
claim under Section 16, Rule 39. The aggrieved third party may
also avail himself of the remedy of "terceria" by executing an
affidavit of his title or right of possession over the property
levied on attachment and serving the same to the office
making the levy and the adverse party. However, it may be
stopped if a bond is filed by the judgment-obligee.
3. Such party may also file an action to nullify the levy with
damages resulting from the unlawful levy and seizure, which
should be a totally separate and distinct action from the
former case.
For example: The court denied the motion to quash the execution
or to exclude the property from levy, if he filed an affidavit but
judgment-obligee filed for a bond, he can file a separate action to
nullify the levy with damages resulting from the unlawful levy and
seizure. It is a separate and distinct action.
These remedies are not mutually exclusive, they are cumulative.
You can opt to avail of the remedies at the same time. If he is denied
in the first two, he can avail himself of the third remedy. He does
not have to avail of all these actions but he can choose to avail all
of these remedies or any one of them.
THIRD-PARTY CLAIM vs. THIRD PARTY COMPLAINT
A third-party complaint under Rule 6 is a PLEADING filed by a
defendant against the third person not a party to the action for
contribution, indemnity, subrogation, or any other relief in respect
of the plaintiff’s complaint.
A third-party claim (terceria) under RULE 39 is an AFFIDAVIT made
by a third person who claims to be entitled to the property in the
custody of a sheriff by virtue of a writ of execution.
The one who files a third-party claim is technically called third-party
CLAIMANT. The one who files a third-party complaint is called third-
party PLAINTIFF.
WHERE TO FILE THIRD-PARTY CLAIM
A third-party claim is filed with the sheriff although legally, it is
considered as it is filed in the court because the sheriff is only an
agent of the court. The sheriff does not have the power to rule on
the legal issues. It is the court which decides on the validity of a
third-party claim.
Technically, a third-party claim is not filed. It is served “upon the
officer making the levy”.
BOND TO COUNTER TERCERIA
The officer served with the affidavit of the claiming third person
shall not be bound to keep the property subject of the claim, unless
the judgment obligee, on demand of the officer, files a bond
approved by the court to indemnify the claimant in a sum not less
than the value of the property levied upon. No claim for damages
for the taking or keeping of the property may be enforced against
the bond unless the action therefor is filed within one hundred
twenty (120) days from the date of the filing of the bond (Sec. 16,
Rule 39, Rules of Court). The officer shall not be liable to any third-
223
party claimant for damages for the taking or keeping of the
property, if such bond is filed (Sec. 16, Rule 39, Rules of Court).
INTERVENTION (under Rule 19), NOT A PROPER SEPARATE
ACTION
By way of review, the GROUNDS FOR INTERVENTION are:
1. the intervenor has legal interest in the subject matter;
2. the intervenor has an interest in the success of either
parties;
3. the intervenor has an interest against both parties; and
4. The intervenor is adversely affected by a distribution of
a property in the custody of a court or an officer thereof.
While a disposition of property in an auction sale may be a ground
for intervention, it must be recalled that, under Rule 19,
intervention can only be done at any time BEFORE judgment.
The proper action therefore appears to be an action for
ANNULMENT OF THE LEVY on execution.
The claimant may also apply for INJUNCTIVE RELIEF to enjoin the
sheriff from proceeding with the sale.
CAPA vs. COURT OF APPEALS
G.R. No. 160082, September 19, 2006
Clearly, a third-party claimant or any third person may vindicate
his claim to his property wrongfully levied by filing a proper
action which is distinct and separate from that in which the
judgment is being enforced. Such action would have for its
object the recovery of the possession of the property seized by
the sheriff, as well as damages resulting from the allegedly
wrongful seizure and detention thereof despite the third-party
claim; and it may be brought against the sheriff, of course, and
such other parties as may be alleged to have colluded with the
sheriff in the supposedly wrongful execution proceedings, such
as the judgment creditor himself.
The same paragraph also provides a remedy to a judgment
obligee when a frivolous and plainly spurious claim was filed by
a third-party claimant, i.e., to file his claim for damages in the
same court where the third-party claimant filed his third-party
claim or to file a separate action. Thus, petitioners' claim for
damages must be filed in the trial court, whether in the same
case where a third-party claim has been filed or in a separate
action for damages which petitioners may institute. This is so in
order to require the filing of proper pleadings and to hold trial
so as to give the parties the chance to submit their respective
evidence.
ILLUSTRATION (BAR 1993)
In a decision in Civil Case No. 93-1000 entitled "Beta, Inc. vs.
Jaime de la Cruz," having become final and executory, the RTC
of Manila (Branch 21) issued a writ of execution for its
enforcement. The sheriff levied upon certain chattels and
scheduled the auction sale thereof.
However, Jacinto Santamaria filed a third-party claim with the
sheriff asserting that the chattels levied upon by the latter
belong to him and not to the judgment debtor (Jaime de la Cruz).
Because the judgment creditor (Beta, Inc.) posted an indemnity
bond in favor of the sheriff, the latter refused to release the
chattels and threatened to proceed with the auction sale.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Consequently, Jacinto Santamaria filed an action against Beta,
Inc., and the sheriff in the RTC of Bulacan (Branch 8), docketed
as Civil Case No. 93-487, laying claim to the levied chattels and
seeking to enjoin the sheriff from proceeding with the auction
sale thereof. As prayed for, the court in Civil Case No. 93-487
issued a temporary restraining order, followed by a writ of
preliminary injunction, by way of enjoining the sheriff from
implementing the writ of execution in Civil Case No. 93-1000
against the levied chattels pending determination of Jacinto
Santamaria's claim thereto. Beta, Inc. and the sheriff filed a
motion to dismiss Civil Case No. 93-487 on the ground that the
court has no power to interfere with the judgment of the RTC of
Manila (Branch 21), a coordinate court.
How should the motion to dismiss be resolved? Explain.
SUGGESTED ANSWER:
The motion to dismiss should be denied. Where a property
levied upon is claimed by a third party, nothing in the Rules
"shall prevent such claimant or any third person from
vindicating his claim against to the property in a separate
action" (Sec. 16, Rule 39, Rules of Court). Clearly, a third-party
claimant is allowed to vindicate his claim to his property
wrongfully levied by filing a proper action which is distinct and
separate from that in which the judgment is being enforced.
The action filed cannot be considered as interference with the
judgment of another court. The separate action filed is not
directed against the court but against the unlawful acts of the
sheriff and the prevailing party.
RELATED PROVISION:
DUTY OF SHERIFF IN CASE OF TERCERIA
Section 26. Certificate of sale where property claimed by third
person. — When a property sold by virtue of a writ of execution
has been claimed by a third person, the certificate of sale to be
issued by the sheriff pursuant to sections 23, 24 and 25 of this
Rule shall make express mention of the existence of such third-
party claim. (28a)
Section 17. Penalty for selling without notice, or removing or
defacing notice. — An officer selling without the notice
prescribed by section 15 of this Rule shall be liable to pay
punitive damages in the amount of five thousand (P5,000.00)
pesos to any person injured thereby, in addition to his actual
damages, both to be recovered by motion in the same action;
and a person willfully removing or defacing the notice posted, if
done before the sale, or before the satisfaction of the judgment
if it be satisfied before the sale, shall be liable to pay five
thousand (P5,000.00) pesos to any person injured by reason
thereof, in addition to his actual damages, to be recovered by
motion in the same action. (19a)
Section 18. No sale if judgment and costs paid. — At any time
before the sale of property on execution, the judgment obligor
may prevent the sale by paying the amount required by the
execution and the costs that have been incurred therein. (20a)
Section 19. How property sold on execution; who may direct
manner and order of sale. — All sales of property under
execution must be made at public auction, to the highest bidder,
to start at the exact time fixed in the notice. After sufficient
property has been sold to satisfy the execution, no more shall
224
be sold and any excess property or proceeds of the sale shall be
promptly delivered to the judgment obligor or his authorized
representative, unless otherwise directed by the judgment or
order of the court. When the sale is of real property, consisting
of several known lots, they must be sold separately; or, when a
portion of such real property is claimed by a third person, he
may require it to be sold separately. When the sale is of personal
property capable of manual delivery, it must be sold within view
of those attending the same and, in such parcels, as are likely to
bring the highest price. The judgment obligor, if present at the
sale, may direct the order in which property, real or personal
shall be sold, when such property consists of several known lots
or parcels which can be sold to advantage separately. Neither
the officer conducting the execution sale, nor his deputies, can
become a purchaser, nor be interested directly or indirectly in
any purchase at such sale. (21a)
PROHIBITION UPON SHERIFF FROM PURCHASING
The officer conducting the execution sale or his deputies cannot
become purchasers or be interested directly or indirectly in any
purchase at the public auction sale.
Correlate this with a provision we learned in SALES, to wit:
Art. 1491. The following persons cannot acquire by
purchase, even at a public or judicial auction, either in
person or through the mediation of another:
(1) The guardian, the property of the person or persons
who may be under his guardianship;
(2) Agents, the property whose administration or sale
may have been entrusted to them, unless the consent of
the principal has been given;
(3) Executors and administrators, the property of the
estate under administration;
(4) Public officers and employees, the property of the
State or of any subdivision thereof, or of any
government-owned or controlled corporation, or
institution, the administration of which has been
entrusted to them; this provision shall apply to judges
and government experts who, in any manner
whatsoever, take part in the sale;
(5) Justices, judges, prosecuting attorneys, clerks of
superior and inferior courts, and other officers and
employees connected with the administration of justice,
the property and rights in litigation or levied upon an
execution before the court within whose jurisdiction or
territory they exercise their respective functions; this
prohibition includes the act of acquiring by assignment
and shall apply to lawyers, with respect to the property
and rights which may be the object of any litigation in
which they may take part by virtue of their profession.
(6) Any others specially disqualified by law. (1459a)
Section 20. Refusal of purchaser to pay. – If a purchaser refuses to
pay the amount bid by him for property struck off to him at a sale
under execution, the officer may again sell the property to the
highest bidder and shall not be responsible for any loss occasioned
thereby; but the court may order the refusing purchaser to pay into
the court the amount of such loss, with costs, and may punish him
for contempt if he disobeys the order. The amount of such payment
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
shall be for the benefit of the person entitled to the proceeds of the
execution, unless the execution has been fully satisfied, in which
event such proceeds shall be for the benefit of the judgment
obligor. The officer may thereafter reject any subsequent bid of
such purchaser who refuses to pay.
Section 21. Judgment obligee as purchaser. – When the purchaser
is the judgment obligee, and no third-party claim has been filed, he
need not pay the amount of the bid if it does not exceed the
amount of his judgment. If it does, he shall pay only the excess.
GR: When the purchaser is the judgment obligee (the prevailing
party), he need not pay the amount of the bid.
XPN: The obligee may be required to pay for his bid:
1.) When his bid is higher than the judgment. However, he shall
be required to pay only the excess;
2.) When the property which is to be sold is a subject of a third
party claim. In that case, there is still controversy as to
whether the property is really owned by the judgment debtor
or the third-party claimant. The money will simply be
deposited with the court. If it turns out the claim is frivolous,
the money will be returned to the obligee. If the third party
claim turns out to be valid, it will be given to the real owner
because the property that was bought turned out to be owned
by somebody who is not the debtor.
Section 22. Adjournment of sale. – By written consent of the
judgment obligor and oblige, or their duly authorized
representatives, the officer may adjourn the sale to any date and
time agreed upon by them. Without such agreement, he may
adjourn the sale from day to day if it becomes necessary to do so
for lack of time to complete the sale on the day fixed in the notice
or the day to which it was adjourned.
CONVEYANCE OF PERSONAL PROPERTY
Section 23. Conveyance to purchaser of personal property capable
of manual delivery. – When the purchaser of any personal
property, capable of manual delivery, pays the purchase price, the
officer making the sale must deliver the property to the purchaser
and, if desired, execute and deliver to him a certificate of sale. The
sale conveys to the purchaser all the rights which the judgment
obligor had in such property as of the date of the levy on execution
or preliminary attachment.
Section 24. Conveyance to purchaser of personal property not
capable of manual delivery. – When the purchaser of any personal
property, not capable of manual delivery, pays the purchase price,
the officer making the sale must execute and deliver to the
purchaser a certificate of sale. Such certificate conveys to the
purchaser all the rights which the judgment obligor had in such
property as of the date of the levy on execution or preliminary
attachment.
DISCUSSION
Sections 23 and 24 talks of conveyance of personal property. The
difference is in Section 23, the personal property is capable of
manual delivery. In Section 24, the personal property is not capable
of such.
225
Q: What does the sheriff do?
A: If under Section 23, he will deliver the property manually to the
purchaser and execute a certificate of sale.
If not capable of manual delivery as to Section 24, he will merely
execute and deliver a certificate of sale.
RIGHTS OF THE PURCHASER OF THAT PROPERTY
The sale conveys to the purchaser all the rights which the judgment
obligor had in such property as of the date (that’s the cutoff) of the
levy on execution or preliminary attachment.
PERSONAL PROPERTY
CAPABLE OF MANUAL INCAPABLE OF MANUAL
DELIVERY DELIVERY
Sheriff making the sale must The sheriff making the sale
deliver the property to the cannot deliver the property to
purchaser and, if desired, the purchaser.
execute and deliver to him a
certificate of sale.
The sheriff making the sale The sheriff making the sale
MAY execute and deliver to MUST execute and deliver to
the purchaser a certificate of the purchaser a certificate of
sale, ONLY IF THE LATTER sale.
DESIRES.
Delivery here is actual and Delivery here is constructive
compulsory.
“Such certificate conveys to the purchaser all the rights which the
judgment obligor had in such property…”
At the sale, the purchaser acquires all the rights which the obligor
had in the property sold. Thus, if the obligor owned the property,
the purchaser becomes the owner and acquires the judgment
obligor’s right of ownership. If the obligor was merely a
usufructuary, the purchaser only acquires the right of usufruct.
DISCUSSION
So, it is important to note that what the purchaser in an execution
sale acquires are only the rights which the judgment obligor had at
the time of the levy.
For example, the obligor no longer has any right as he has
previously sold the property. In that case, there will be no rights
transferred to the purchaser. Or if what is left is merely the
usufructuary rights of the obligor over the property, then that is the
only extent of the right that the purchaser acquires.
LEYSON VS. TAÑADA
109 SCRA 66 [1981]
At a sheriff’s sale they do not sell the land advertised to sell,
although that is a common acceptation, but they simply sell what
interest in that land the judgment debtor has; and if you buy his
interest, and it afterwards develops that he has none, you are still
liable on your bid, because you have offered so much for his interest
in open market, and it is for you to determine before you bid what
is his interest in the property.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
DISCUSSION
What happens now to the buyer of that property in an execution
sale when he thought that the judgment debtor had the full
ownership over the property, where in fact, the latter only has a
usufructuary right?
Q: CAN HE DEMAND FOR THE REIMBURSEMENT TO HIM AS TO
WHAT HE PAID?
A: In this case of Leyson, the Supreme Court said NO. You are still
liable to your bill, because you have offered so much for his interest
in open market, and it is for you to determine before you bid what
is his interest in the property.
The purchaser cannot complain that he only acquired a lesser right
even if he expected the full right of ownership. Note that this is
related to some principles in sales. In sales, there are implied
warranties, to wit:
1.) Warranty that seller has a right to sell;
2.) Warranty against eviction;
3.) Warranty against non-apparent servitudes;
4.) Warranty against hidden defects; and
5.) Warranty as to fitness or quality.
And then we also have warranties under Article 1547
Art. 1547 – In a contract of sale, unless a contrary intention
appears, there is:
(1) An implied warranty on the part of the seller that he has a right
to sell the thing at the time when the ownership is to pass, and
that the buyer shall from that time have and enjoy the legal
and peaceful possession of the thing;
(2) An implied warranty that the thing shall be free from any
hidden faults or defects, or any charge or encumbrance not
declared or known to the buyer.
This Article shall not, however, be held to render liable a sheriff,
auctioneer, mortgagee, pledgee, or other person professing to sell
by virtue of authority in fact or law, for the sale of a thing in which
a third person has a legal or equitable interest.
DISCUSSION
In the last paragraph of Art. 1547, this warranty on hidden defects.
The sheriff, auctioneer, mortgagee, pledgee, or other person
professing to sell by virtue of authority in fact or law cannot be held
liable.
Moreover, as we have said earlier, the purchaser will still has to pay
for his bid. So obviously, he cannot demand from the judgment
oblige/plaintiff for the return of what he paid. As remedy, however,
he can go against the judgment obligor/debtor, although the latter
is not liable for damages.
Take note also that, with respect to the warranty against hidden
defects:
Art. 1570 – The preceding articles of this Subsection
(Articles 1561-1569) shall be applicable to judicial sales,
except that the judgment debtor shall not be liable for
damages.
226
CONVEYANCE OF REAL PROPERTY
Section 25. Conveyance of real property; certificate thereof given
to purchaser and filed with registry of deeds. – Upon a sale of real
property, the officer must give to the purchaser a certificate of sale
containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one (1) year
from the date of the registration of the certificate of sale.
Such certificate must be registered in the registry of deeds of the
place where the property is situated.
DISCUSSION
Section 25 talks about conveyance of real property: like land,
building.
PROCEDURE UNDER SECTION 25
Take note that there is a difference in a conveyance of a personal
property and conveyance of a real property. The most significant
distinction would be: in a conveyance of a real property, there is a
right of redemption of one (1) year from the date of the registration
of the certificate of sale.
This provision highlights the difference between a sale of personal
property under Sections 23 and 24 and the sale of real property.
When the property sold at public auction is real property, the
debtor has one (1) year to redeem the same. This is known as the
RIGHT OF REDEMPTION from the purchaser. If the property sold at
public auction is personal property, there is no right of redemption.
This right is only recognized in real property.
Corollarily, when does the highest bidder acquire ownership of the
property sold in an auction sale? It depends whether the property
sold is personal or real. If it is personal property, the title is
transferred after payment of the purchase price and delivery upon
the purchaser, actual or constructive (Sections 23 & 24). If it is real
property, title is transferred, not after the auction sale, but after
expiration of the right to redeem. (Section 25)
Note that the period to redeem is one year from the date
of the registration of the certificate of sale in the office of the
registrar of deeds, not from the date of the auction sale.
DISCUSSION
Remember when it comes to personal property, ownership or title
is transferred to the buyer after the payment and delivery. If the
personal property is not capable of manual delivery, then
constructive delivery from the time of the delivery of the certificate
of sale. Now if it is a real property, ownership is transferred after
the expiration of the right to redeem. After the auction sale,
ownership is not yet transferred to the buyer. The judgment obligor
is still given the right to redeem within 1 year. Only after the lapse
of the period of redemption. The one year is not counted from the
date of the auction sale but from the date of the registration of the
certificate of sale in the office of the registrar of deeds.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
VALIDTY OF AUCTION SALE: PRESUMED VALID
Auction sale enjoy the presumption of regularity, they are
presumed to be valid. Can an interested party attack the validity of
an auction sale?
As a general rule, there is a presumption that every fair sale is
final. There is a presumption of regular performance of duty by
the sheriff. However, by way of exception, an execution sale may
be set aside:
1. When it is shown from the nature of the irregularity or
from intrinsic facts injury resulted therefrom (Navarro vs.
Navarro, 76 Phil. 122), which means that there were
serious irregularities committed by the officer in
conducting the sale like lack of publication, notice or prior
valid levy;
2. When the price obtained at the execution sale is
shockingly inadequate and it is shown that a better price
can be obtained at a resale. (Barrozo vs. Macadaeg, 83
Phil. 378) Meaning, the highest bid is shockingly
inadequate.
The second exception does not apply when the property sold is real
property because if the property sold is a personal property, there
is no right of redemption. But if the property sold is real property,
it is easier for the obligor to redeem the same.
Ramos vs. Pablo (1986)
146 SCRA 5
Held: A reading of Petitioners' complaint shows that inadequacy
of price was raised as one of the issues. Assuming that the price
was shockingly low, the same cannot vitiate the auction sale for
redemption would be comparatively easier.
Section 27. Who may redeem real property so sold. — Real
property sold as provided in the last preceding section, or any
part thereof sold separately, may be redeemed in the manner
hereinafter provided, by the following persons:
(a) The judgment obligor; or his successor in interest in the
whole or any part of the property;
(b) A creditor having a lien by virtue of an attachment, judgment
or mortgage on the property sold, or on some part thereof,
subsequent to the lien under which the property was sold.
Such redeeming creditor is termed a redemptioner.
DISCUSSION
Letter B are the losses of a creditor having a lien by virtue
attachment, judgment, or mortgage on the property sold. In Letter
by, they are called redemptioner.
JUDGMENT OBLIGOR OR SUCCESSORS IN INTEREST
The successors in interest of the judgment obligor may either be:
1. One to whom the debtor has transferred his statutory
right of redemption, by way of contract;
2. One to whom the debtor has conveyed his interest in the
property for the purpose of redemption, also by way of
contract;
3. One who succeeds to the interest of the debtor, by
operation of law;
4. One or more joint debtors who were joint owners of the
property sold; or
5. His spouse or heirs, by way of hereditary succession.
227
DISCUSSION
In number 1, they executed that the right of redemption of the
debtor will be transferred to a third person. So that 3rd person can
exercise the right of redemption.
In number 2, the debtor has conveyed his interest in the property
itself for the purpose of redemption, so there is a transfer of right
in the land itself and that is for the purpose of redemption because
after the execution sale the judgment debtor still retains ownership
over the property, he does not yet lose it so he can actually convey
his interest in the property. However, if he does that, what will the
transferee get? Because the property is already sold at auction sale,
the best that the transferee could do is to exercise his right of
redemption.
In number 3, this is illustrated in the case of Cayton vs. Zeonnix, It
provides for an example whereby operation of law, person/ entities
succeed to the interest of the debtor without executing a contract.
In number 4, the joint owners may redeem.
In number 5, the legal heirs, the spouse, by way of hereditary
succession.
REDEMPTIONER
A redemptioner is a creditor with a lien subsequent to the judgment
which was the basis of the execution sale. If the lien of the creditor
is prior to the judgment under which the property was sold, he is
not a redemptioner and, therefore, cannot redeem because his
interests in his lien are fully protected, since any purchase at public
auction of said property takes the same subject to such prior lien
which he has to satisfy. Unlike the judgment debtor, a
redemptioner must prove his right to redeem by producing the
documents called for by Section 30, Rule 39 of the Rules of Court.
(Regalado, Florenz D., Remedial Law Compendium, Vol I., 8th
Revised Edition (2002)).
DISCUSSION
There was already the judgment, then this creditor acquired a lien
as against the property subject of the execution sale.
Q: Why would he redeem in the first place?
For example, the debtor has no other properties aside from that
which is subject of the execution sale, if the debt of the judgment
debtor is only 1M, and the debt with the redemptioner is 10M, the
property then subject of the redemption/execution sale is 8M, if
you were creditor B, you can pay the 1M redemption price of the
first judgment creditor, then you will redeem the property since
you may be able to realize about 7M.
Sec. 30. Proof required of redemptioner. — A redemptioner
must produce to the officer, or person from whom he seeks to
redeem, and serve with his notice to the officer a copy of the
judgment or final order under which he claims the right to
redeem, certified by the clerk of the court wherein the
judgment or final order is entered; or, if he redeems upon a
mortgage or other lien, a memorandum of the record thereof,
certified by the registrar of deeds; or an original or certified copy
of any assignment necessary to establish his claim; and an
affidavit executed by him or his agent, showing the amount then
actually due on the lien.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
ONE WHO SUCCEEDS TO THE INTEREST OF THE DEBTOR, BY
OPERATION OF LAW
Cayton And Heirs Cayton vs. Zeonnix Trading Corporation
G.R. No. 169541, October 9, 2009
Facts: Spouses Mañosca owned a house and lot.
• May 24, 1980 - the Mañoscas executed a Deed of Real
Estate Mortgage in favor of Family Savings Bank (FSB). The
mortgage was annotated on the title on June 2, 1980.
• July 21, 1981 - a levy on attachment was annotated on the
title by Zeonnix in a case for recovery of sum of money filed
by Zeonnix against the Spouses Mañosca.
• September 1, 1981 - a Deed of Absolute Sale with
Assumption of Mortgage was executed between the
Spouses Mañosca and the Spouses Cayton. The Caytons
assumed payment of the amortizations to FSB.
The Caytons failed to register the Deed of Absolute Sale with
Assumption of Mortgage because the owner’s duplicate copy
was in the possession of FSB.
The Caytons defaulted in the payment of amortizations to FSB
so the property was extrajudicially foreclosed.
• April 23, 1984 – property was sold at public auction,
the Caytons were the highest bidder.
• April 25, 1985 – Certificate of Sale was issued and
annotated on the title.
• Aprl 15, 1985 – the Caytons filed a case for quieting of
title and/or removal of cloud on title against Zeonnix.
The Caytons claimed that with the execution of the deed of
absolute sale with assumption of mortgage, all rights and
interests over the property including the right of redemption,
had been transferred to them by the Mañoscas. Thus, Zeonnix
had no more right of redemption to speak of.
HELD: Right of redemption is the prerogative to reacquire a
mortgaged property after registration of the foreclosure sale. It
exists only in the case of the extrajudicial foreclosure of the
mortgage. No such right is recognized in a judicial foreclosure
unless the mortgagee is a bank. An attaching creditor acquires
the right to redeem the debtor’s attached property
subsequently foreclosed extra-judicially by a third party.
In the instant case, the Caytons aver that as successor-in-
interest of the Mañoscas by virtue of the deed of absolute sale
with assumption of mortgage, they have a better right than
Zeonnix to redeem the property. This stance deserves scant
consideration.
Indeed, they are successors in interest of the
Mañoscas. However, their supposed title or right over the
property is unregistered and, as such, the same cannot affect
third persons. This is because it is registration that is the
operative act to convey or affect the land insofar as third
persons are concerned. A deed, mortgage, lease, or other
voluntary instrument, except a will, purporting to convey or
affect conveyance involving registered land, shall not take effect
as a conveyance or bind the land but shall operate only as a
228
contract between the parties and as evidence of authority of
the Register of Deeds to make registration.
The unregistered sale of the house and lot to the Caytons by the
Mañoscas cannot prejudice the right of redemption granted by
law in favor of Zeonnix. The levy on attachment of Zeonnix on
the subject property was duly recorded on TCT No. S-90836.
Thus, the levy on attachment created a constructive notice to all
persons from the time of such registration.
All persons dealing with the land so recorded, or any portion of
it, must be charged with notice of whatever it contains. The
purchaser is charged with notice of every fact shown by the
record and is presumed to know every fact which the record
discloses.
Under the rule of notice, it is presumed that the purchaser has
examined every instrument of record affecting the title. Such
presumption is irrefutable.
He is charged with notice of every fact shown by the record and
is presumed to know every fact which an examination of the
record would have disclosed. This presumption may not be
overcome by proof of innocence or good faith. Otherwise, the
very purpose and object of the law requiring a record would be
destroyed. Such presumption may not be defeated by proof of
want of knowledge of what the record contains, any more than
one may be permitted to show that he was ignorant of the
provisions of the law.
The rule that all persons must take notice of the facts that the
public record contains is a rule of law. The rule must be absolute.
Any variation would lead to endless confusion and useless
litigation.
Zeonnix has acquired by operation of law the right of
redemption over the foreclosed properties. By virtue of the RTC
decision in Civil Case No. 2173, it had the right to redeem the
property. This is pursuant to Section 6 of Act No. 3135, as
amended by Act No. 4118, which provides:
SECTION 6. In all cases in which an extrajudicial sale
is made under the special power hereinbefore
referred to, the debtor, his successors in interest or
any judicial creditor or judgment creditor of said
debtor, or any person having a lien on the property
subsequent to the mortgage or deed of trust under
which the property is sold, may redeem the same at
any time within the term of one year from and after
the date of the sale; and such redemption shall be
governed by the provisions of sections four hundred
and sixty-four to four hundred and sixty-six, inclusive,
of the Code of Civil Procedure, in so far as these are
not inconsistent with the provisions of this Act.
The writ of attachment entitled the attaching creditor to
exercise the right to redeem the foreclosed properties. A writ
of attachment that has been levied on real property or any
interest therein belonging to the judgment debtor creates a
lien which nothing can destroy but its dissolution.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Section 28. Time and manner of, and amounts payable on,
successive redemptions; notice to be given and filed. — The
judgment obligor, or redemptioner, may redeem the property
from the purchaser, at any time within one (1) year from the
date of the registration of the certificate of sale, by paying the
purchaser the amount of his purchase, with the per centum per
month interest thereon in addition, up to the time of
redemption, together with the amount of any assessments or
taxes which the purchaser may have paid thereon after
purchase, and interest on such last named amount at the same
rate; and if the purchaser be also a creditor having a prior lien
to that of the redemptioner, other than the judgment under
which such purchase was made, the amount of such other lien,
with interest.
Property so redeemed may again be redeemed within sixty (60)
days after the last redemption upon payment of the sum paid
on the last redemption, with two per centum thereon in
addition and the amount of any assessments or taxes which the
last redemptioner may have paid thereon after redemption by
him, with interest on such last named amount, and in addition,
the amount of any liens held by said last redemptioner prior to
his own, with interest. The property may be again, and as often
as a redemptioner is so disposed, redeemed from any previous
redemptioner within sixty (60) days after the last redemption,
on paying the sum paid on the last previous redemption, with
two per centum thereon in addition, and the amounts of any
assessments or taxes which the last previous redemptioner paid
after the redemption thereon, with interest thereon, and the
amount of any liens held by the last redemptioner prior to his
own, with interest.
Written notice of any redemption must be given to the officer
who made the sale and a duplicate filed with the registry of
deeds of the place, and if any assessments or taxes are paid by
the redemptioner or if he has or acquires any lien other than
that upon which the redemption was made, notice thereof must
in like manner be given to the officer and filed with the registry
of deeds; if such notice be not filed, the property may be
redeemed without paying such assessments, taxes, or liens.
(30a)
PERIODS OF REDEMPTION
The real property sold may be redeemed from the purchaser, at
any time within one (1) year from the date of the registration of the
certificate of sale. If there are other creditors having a lien on the
property, the property so redeemed may again be redeemed within
sixty (60) days from the last redemption. The property may again,
and as often as a redemptioner is so disposed, be redeemed from
any previous redemptioner within sixty (60) days after the last
redemption (Sec. 28, Rule 39, Rules of Court).
Thus, there are two periods of redemption. The judgment obligor
and first redemptioner are given ONE YEAR from the date of
registration of the certificate of sale to redeem and after that all
subsequent redemptioners are given 60 days (if the one who
exercised the first redemption is not the judgment obligor).
DISCUSSION
So, under the law, the real property sold may be redeemed within
1 year from the date of registration of the certificate of sale, so
that’s from the date of registration with the Registry of Deeds. So,
229
it’s either the judgement debtor who will redeem or if not, maybe
the redemptioner.
• If it is the judgement debtor who exercise the right of
redemption, that’s fine, that’s it.
• If it is the redemptioner, then he has 1 year within which
to redeem, 1 year from the date of registration of the
certificate of sale.
• But if the one who redeems is the redemptioner, it’s not
yet done because it can still be redeemed again by the
judgement debtor or any other subsequent
redemptioners. So, in that case, again, the first
redemption period is within 1 year from the date of
registration of the certificate of sale. After a right of
redemption is exercised but not by the judgement
obligor, by another redemptioner, the subsequent
redemptioner has again 60 days to exercise right of
redemption. Every time there is a redemption, there is
60 days. That will only end if it is now the judgement
debtor who will redeem. In that case, there is no other 60
days.
REQUISITES OF A VALID REDEMPTION
To constitute valid redemption, the amount tendered must comply
with the following requirements:
1. It should constitute the full amount paid by the
purchaser;
2. With one percent per month interest on the purchase
price in addition, up to the time of redemption;
3. Together with the amount of any assessments or taxes
which the purchaser may have paid thereon after
purchase;
4. Interest on the taxes paid by the purchaser at the rate of
one percent per month, up to the time of the
redemption. The Court has, however, ruled56 that
redemptions from lending or credit institutions, like TCLC,
are governed by Section 7857 of the General Banking Act
(now Section 47 of the General Banking Law of 2000),
which amended Section 6 of Act No. 3135 in relation to
the proper redemption price when the mortgagee is a
bank, or a banking or credit institution.58 and
5. If the purchaser be also a creditor having a prior lien to
that of the redemptioner, other than the judgment under
which such purchase was made, the amount of such
other lien, with interest.
In exercising the right of redemption, the tender of payment must
be for the full amount of the purchase price. Otherwise, to allow
payment by installments would be to allow the indefinite extension
of the redemption period.
CAYTON and HEIRS CAYTON vs. ZEONNIX TRADING
CORPORATION
G.R. No. 169541, October 9, 2009
The amount tendered by Zeonnix may be considered sufficient
for purposes of redemption, although it failed to include the
amount of taxes paid by the Caytons. The payment of the full
amount of the purchase price and interest thereon should be
deemed as substantial compliance, considering that Zeonnix
immediately paid the amount of taxes when apprised of the
deficiency.
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
In Estanislao, Jr. v. Court of Appeals, the Court relaxed its rules
on the redemptioner’s failure to pay the taxes paid by the
purchaser. The Court ruled in this wise, viz.:
There are additional amounts to be made in order to effect a
valid redemption required by law, but, as respondent Hi-Yield
Realty, Inc. failed to comply with certain requirements,
petitioners' failure to pay these additional amounts may be
considered excused. As provided in Rule 39, §30 of the 1964
Rules of Court, the redemptioner must also pay the assessment
or taxes paid by the purchaser. However, the latter must give
notice to the officer who conducted the sale of the
assessments or taxes paid by him and file the same with the
Registry of Deeds. x x x.
xxx
Petitioners were not furnished by respondent Hi-Yield Realty,
Inc. such statement of account. Neither was such statement
filed with the Registry of Deeds. Respondent Hi-Yield Realty, Inc.
claimed that a statement of account (Exh. 8-C and Exh. 8-D) was
furnished the office of Atty. Basco, the notary public who had
conducted the sale, as received by Elizabeth Roque, an
employee therein. However, Atty. Basco denied having received
the statement. Petitioners were therefore justified in not paying
any assessments or taxes which respondent Hi-Yield Realty, Inc.
may have paid.
Likewise, in Rosales v. Yboa, the Court ruled that the failure to
pay the delinquent real estate taxes on the property will not
render the redemption void. This is in consonance with the
policy of the law to aid rather than to defeat the right of
redemption. The pertinent portion of the decision reads:
In fine, We hold that the failure of the mortgagor Pedro Oliverio
to tender the amount of P745.47 representing the delinquent
real estate taxes of the subject property, the registration fee of
P3.00 and the interest thereon of P0.04, the Sheriff's
Commission in the sum of P99.82, and the deficiency interest on
the purchase price of the subject property, will not render the
redemption in question null and void, it having been established
that he has substantially complied with the requirements of the
law to effect a valid redemption, with his tender of payment of
the purchase price and the interest thereon within twelve (12)
months from the date of the registration of the sale. This ruling
is in obedience of the policy of the law to aid rather than to
defeat the right of redemption.
Section 29. Effect of redemption by judgment obligor, and a
certificate to be delivered and recorded thereupon; to whom
payments on redemption made. — If the judgment obligor
redeems he must make the same payments as are required to
effect a redemption by a redemptioner, whereupon, no further
redemption shall be allowed and he is restored to his estate. The
person to whom the redemption payment is made must execute
and deliver to him a certificate of redemption acknowledged
before a notary public or other officer authorized to take
acknowledgments of conveyances of real property. Such
certificate must be filed and recorded in the registry of deeds of
the place in which the property is situated and the registrar of
deeds must note the record thereof on the margin of the record
of the certificate of sale. The payments mentioned in this and
230
the last preceding sections may be made to the purchaser or
redemptioner, or for him to the officer who made the sale. (31a)
Section 31. Manner of using premises pending redemption;
waste restrained. — Until the expiration of the time allowed for
redemption, the court may, as in other proper cases, restrain
the commission of waste on the property by injunction, on the
application of the purchaser or the judgment obligee, with or
without notice; but it is not waste for a person in possession of
the property at the time of the sale, or entitled to possession
afterwards, during the period allowed for redemption, to
continue to use it in the same manner in which it was previously
used, or to use it in the ordinary course of husbandry; or to make
the necessary repairs to buildings thereon while he occupies the
property. (33a)
DISCUSSION
Q: Within the redemption period, who is entitled to possess the
property? For example, it has been sold in the execution of sale,
however there is still redemption period.
A: It is still the judgement debtor or obligor who is entitled to
possess the property.
That is why, when the purchaser or the judgement obligor feels that
there is a commission of waste on the property, so the property
might get damaged, they can apply for injunction to restrain the
commission of waste. However, if the property is being used in the
same manner that consists before, then it will not be considered as
a waste. That’s the meaning of Section 31.
Q: After the lapse of the redemption period, who would be the
owner? Well, if it would not be redeemed by the judgement debtor,
or any redemptioner,
A: then ownership shall now be transferred to the buyer, so the
possession of the property should be turned over not to the buyer.
Section 32. Rents, earnings and income of property pending
redemption. — The purchaser or a redemptioner shall not be
entitled to receive the rents, earnings and income of the
property sold on execution, or the value of the use and
occupation thereof when such property is in the possession of a
tenant. All rents, earnings and income derived from the
property pending redemption shall belong to the judgment
obligor until the expiration of his period of redemption. (34a)
DISCUSSION
So again, pursuant to the principle that prior to the expiration of
the redemption period, the title over the property subject to the
execution sale still remains with the judgement obligor. Then any
rents, income from the property during the redemption period shall
also belong to the judgement obligor. That is an incident of his
ownership.
Section 33. Deed and possession to be given at expiration of
redemption period; by whom executed or given. — If no
redemption be made within one (1) year from the date of the
registration of the certificate of sale, the purchaser is entitled to
a conveyance and possession of the property; or, if so redeemed
whenever sixty (60) days have elapsed and no other redemption
has been made, and notice thereof given, and the time for
redemption has expired, the last redemptioner is entitled to the
conveyance and possession; but in all cases the judgment
obligor shall have the entire period of one (1) year from the date
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
of the registration of the sale to redeem the property. The deed
shall be executed by the officer making the sale or by his
successor in office, and in the latter case shall have the same
validity as though the officer making the sale had continued in
office and executed it.
Upon the expiration of the right of redemption, the purchaser
or redemptioner shall be substituted to and acquire all the
rights, title, interest and claim of the judgment obligor to the
property as of the time of the levy. The possession of the
property shall be given to the purchaser or last redemptioner by
the same officer unless a third party adversely to the judgment
obligor. (35a)
DISCUSSION
In section 33, when the right of redemption has already lapsed, the
period of 1 year has already expired. 1 year from the registration of
the certificate of sale. It has already lapsed. No redemption
occurred. Then title shall now be given to the purchaser during the
execution sale.
Now, please be clarified also that we have previously discussed that
period of redemption is 1 year, and if someone would redeem
within that period, for example it was not the judgement debtor
who has redeemed, but a redemptioner, so remember that the
redemption period has not yet expired, after the redemption by the
redemptioner within the period of 1 year, there is another 60 days
for the judgement debtor or any other redemptioner to redeem the
property.
So within 1 year it can be redeemed by the judgement debtor, or
any redemptioner. If it would be the judgement debtor who would
redeem the property within 1 year, the conflict is resolved.
However, if it is not the judgement debtor who redeemed within
the 1 year period, another person, a redemptioner, from him there
is another 60 days for the judgement debtor to redeem the
property from him or any other person.
For example, the certificate of sale was recorded on January at the
register of deeds, so it would lapse by December 31 (1 year, 365
days, 12 months) let’s say 2001(not a leap year). However, by
August, the property was redeemed by a redemptioner.
Q: What is the period for the judgement debtor within which to
redeem the property? 60 days?
A: NO. He still has the remaining period for him to complete the 1
year. It would not be correct that the 1 year period for him to
redeem the property would be reduced tremendously when he still
has the original unexpired portion of the 1 year period just because
there is a redemptioner who is very excited to redeem the property
(it was just 8 months that expired from the time the certificate of
sale was registered at the ROD). In all cases, when the original 1-
year period has not yet lapsed, the judgement debtor must have
the complete 1 year period.
In another example, the redemptioner redeemed the property on
let’s say December 25(there is 5 days left for the 1 year to expire),
from the time that the redemptioner redeemed the property,
Q: How long now is the redemption period for the judgement
debtor?
A: He has 60 days from the time the redemptioner redeemed the
property. That would be the period. So in all cases, the judgement
231
obligor shall have the entire period of 1 year from the date of the
registration of the sale to the redeem the property.
EFFECT IF NO REDEMPTION IS MADE
If no redemption is made within one (1) year from the date of the
registration of the certificate of sale, the purchaser is entitled to a
conveyance and possession of the property; or if so redeemed
whenever sixty (60) days have elapsed and no other redemption
has been made, and notice thereof given, the last redemptioner is
entitled to the conveyance and possession of the property (Sec. 33,
Rule 39, Rules of Court).
Upon the expiration of the right of redemption, the purchaser or
redemptioner shall be substituted to and acquire all the rights, title,
interest and claim of the judgment obligor to the property as of the
time of the levy (Sec. 33, Rule 39, Rules of Court). Thus, with respect
to acquisition of rights, there is retroactivity to the date of the levy.
DISCUSSION
Now, after the expiration of the right of redemption, the purchaser
or the redemptioner will now be substituted to, and acquire all the
rights, title, interest, and claim of the judgement obligor to the
property.
As an example, the 1 year period has expired and there was neither
the judgement debtor nor any redemptioner that redeemed the
property, or maybe the redemptioner redeemed within 1 year but
no one redeemed the property after him and the 1 year period has
already lapsed, then the purchaser will now be the owner.
Q: When will the right of the purchaser of the property start?
A: The rule says as of the time of levy.
So it begins at the levy, at the notice of levy, not at the time of the
auction sale, but as of the time of the levy. Although we discussed
that within the redemption period, the judgement debtor is
entitled to the rents, the income, the fruits over the property. And
then now, he was not able to redeem, the period has lapsed. Does
that mean that the purchaser will take back the income, fruits, and
interests that were enjoyed by the judgement obligor within the
period of redemption since the right of the purchaser retroacted as
of the time of the levy? No. It shall remain with the judgement
obligor. But again, as to the ownership, the other aspects of
ownership, it would start from the time of the levy.
WRIT OF POSSESSION, DEFINED
Writ of Possession is defined as a “writ of execution employed to
enforce a judgment to recover the possession of land. It commands
the sheriff to enter the land and give its possession to the person
entitled under the judgment.” It may be issued under the following
instances:
(a) land registration proceedings under Section 17 of Act No.
496 (The Land Registration Act);
(b) judicial foreclosure, provided the debtor is in possession
of the mortgaged realty and no third person, not a party
to the foreclosure suit, had intervened;
(c) extrajudicial foreclosure of a real estate mortgage under
Section 7 of Act No. 3135, as amended by Act No.
4118; and
(d) in execution sales.
The issuance of a writ of possession is only proper in order to
execute judgments ordering the delivery of specific properties to a
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
litigant, in accordance with Section 10, Rule 39, of the Rules of
Court (SIA vs. ARCENAS, G.R. Nos. 209672-74, January 14, 2015)
DISCUSSION
So, after the redemption period has lapsed, without any right of
redemption having been exercised, the purchaser is now entitled
to the possession of the property. This is also as a consequence of
the transfer of title now being made to the purchaser. Which
retroacts again as of the time of the levy. So supposedly, the
judgement debtor, he will deliver the possession to the purchaser.
Q: Now what if he will not deliver?
A: Here, there is a need to secure a writ of possession. As defined,
a writ of possession is a writ of execution employed to enforce a
judgement to recover the possession of the land. So, it commands
the sheriff to enter the land, and gives its possession to the person
entitled under the judgement.
So, there are 4 instances under the law that a writ of possession is
issued.
1. In land registration proceedings.
2. In judicial foreclosure if for example, it is the debtor who
is in possession of the property and there is no 3rd person
not a party to the foreclosure suit have intervened.
3. Extrajudicial foreclosure of real estate mortgage, and;
4. In execution sales. This is the one that we are referring to.
Execution sale.
BASCARA vs. SHERIFF JAVIER
G.R. No. 188069, June 17, 2015
Writ of Possession in Extrajudicial Foreclosure (Act 3135) vis-à-
vis Rule 39, Section 33
1. Can be availed of and issued within the redemption
period of the foreclosure sale. Needs a bond.
1. Upon the expiration of the period to redeem and no
redemption was made, the purchaser, as confirmed
owner, has the absolute right to possess the land and
the issuance of the writ of possession becomes a
ministerial duty of the court upon proper application
and proof of title. No bond is required. This is
pursuant to Section 33, Rule 39 of the Rules of Court
which is applicable in extrajudicial foreclosures under
Act 3135.
DISCUSSION
In this case of Bascara vs Sheriff Javier, the Supreme Court talks
about a right of possession in extra-judicial foreclosure. Remember,
we mentioned before that this is one of those instances when there
can be a writ of possession. Now insofar as an extrajudicial
foreclosure is concerned (you know what an extrajudicial
foreclosure is right? Property is mortgaged to secure a debt) and in
the mortgage agreement, there is inserted a special power of
attorney in favor of the mortgage-creditor that he can
extrajudicially foreclose the property in case of default. So that is
the authority to foreclose. Although again, it needs also the
participation of the sheriff because you cannot just on your own
foreclose the property even if it’s what we call “extrajudicial
foreclosure”.
232
In extrajudicial foreclosure, the property will be foreclosed and sold
at public auction, but then there is also a redemption period. Now,
in the meantime that the redemption period has not yet expired, in
an extrajudicial foreclosure, the buyer in the foreclosure sale can
actually request for the delivery to him of the possession of the
property. That’s one of the distinctions.
Unlike in levy, execution sale, you cannot demand for the delivery
of the possession of the property to the purchaser pending lapse or
expiration of the redemption period. In extrajudicial foreclosure, it
could be done, but it needs a bond.
In this particular case, it is not all so ministerial. It will be
determined if it would be proper that in the meantime that the
redemption period for the extrajudicial foreclosure sale has not yet
expired, the possession would be given to the purchaser.
Upon the expiration of the period to redeem and there is no
redemption made, the purchaser’s right as the owner of the
property is already confirmed. He already has absolute right to
possess the property subject of the foreclosure sale. And then here,
unlike in the first situation wherein the redemption period has not
yet lapsed (although a writ of possession may be issued
discretionarily), upon lapse of the redemption period and there is
no redemption, the issuance of the writ of possession becomes a
ministerial duty of the court upon application and proof of title.
There is no bond requirement anymore.
However, there is an exemption, meaning even if the redemption
period has already expired, supposedly, the issuance of the writ of
possession is a ministerial duty. But even if it is an extrajudicial
foreclosure under Act No. 3135, the rule in section 33 of rule 39 will
still apply.
EXCEPTION:
Under Section 33, Rule 39 of the Rules of Court, the possession of
the property shall be given to the purchaser or last redemptioner
unless a third party is actually holding the property in a capacity
adverse to the judgment obligor. Thus, the court's obligation to
issue an ex parte writ of possession in favor of the purchaser in an
extrajudicial foreclosure sale ceases to be ministerial when there is
a third party in possession of the property claiming a right adverse
to that of the judgment debtor/mortgagor.
In such a case, the issuance of the writ of possession ceases to be
ex-parte and non-adversarial as the trial court must order a hearing
to determine the nature of said possession, i.e., whether or not
possession of the subject property is under a claim averse to that
of the judgment debtor.
DISCUSSION
Even after the lapse of the redemption period, the issuance of a
writ of possession does not become ministerial when there is a
third party in possession of the property claiming a right adverse to
that of the judgement debtor or mortgagor. That is the same rule
in Execution sale under section 33 of rule 39. That is applicable even
in foreclosure sale. In such case, the issuance of a writ of possession
no longer becomes ex-parte and non-adversarial. Because the court
now must order a hearing to determine the nature of possession of
the 3rd party who is claiming a right adverse to that of the
judgement debtor.
We repeatedly emphasize though that the exception provided
under Section 33 contemplates a situation in which a third party
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
holds the property by adverse title or right vis-a-vis the judgment
debtor or mortgagor, such as that of a co-owner, agricultural tenant
or usufructuary, who possesses the property in his or her own right
and is not merely the successor or transferee of the right of
possession of another co-owner or the owner of the property.
In this case, while it is undisputed that petitioner was in possession
of the subject property, it cannot be said that his right to possess
the same is by virtue of being a co-owner, agricultural tenant or
usufructuary; nor is the claim to his right of possession analogous
to the foregoing situations. What is clear is that he allegedly
acquired the property from Pardo by reason of a donation mortis
causa.
DISCUSSION
For example, if the court determines that the third party holding
the property has a right adverse to that of the judgement debtor,
the court will not issue the writ of possession. Because in that
particular case, the third person holding the property would also be
denied of the right to be heard. No due process in this case. It’s like
he will lose a property just because of a proceeding wherein he is
not even a party in the first place.
However, if the court is able to determine that the right of the third
party allegedly in possession is actually derived from the judgement
debtor, then in that case, it will not bar the issuance of a writ of
possession.
Q: How do we know that the party holding the property has an
adverse title as against the judgement debtor or mortgagor?
These are the examples:
a. When the third person is a co-owner, if he is a co-owner,
he should not be deprived of his co-ownership over the
property. Or
b. An agricultural tenant, because a tenant cannot be
dispossessed also of the property subject to tenancy. Or
c. Usufructuary, who possesses the property in his or her
own right and is not merely the successor or the
transferee of the right to possession of another co-owner
or the owner of the property.
Q: What is the rule? For example, the possessor, the person
allegedly holding the property merely derives his right from the
judgement debtor or obligor?
A: Well in that case, he is bound to respect the transfer of
ownership to the purchaser. Because being merely a successor-
transferee he only acquires whatever right the judgement obligor
has over the property. If the judgement obligor has the obligation
to observe and respect the possession now of purchaser, then that
corresponding obligation is also applicable and binding to the
transferee or successor.
In this particular case, the Supreme Court stated that the
possessors of the property cannot be said to possess the same by
virtue of being a co-owner, agricultural tenant, or usufructuary.
They are not holding rights adverse to the judgement obligor. They
merely step into the shoes of the judgement obligor because their
mode of acquisition of the property, according to the possessors,
by reason only of a donation mortis causa, meaning, from a last will
and testament and that they just inherited the property.
233
In that case, the Supreme Court said: “You are bound to
observe the rights of the purchaser in the foreclosure
sale. In the same manner that if it is an execution sale, if
you are a person holding the property, you cannot say
that you are not bound by the writ of possession. Because
if you are for example here, just a transferee by donation
mortis causa, you cannot be considered as having an
adverse right as against the judgement debtor or obligor.
He is, therefore, a transferee or successor-in-interest who merely
stepped into the shoes of his aunt. He cannot assert that his right
of possession is adverse to that of Pardo as he has no independent
right of possession.
Consequently, under legal contemplation, he cannot be considered
as a "third party who is actually holding the property adversely to
the judgment obligor." The trial court had the ministerial duty to
issue, as it did issue, the possessory writ in favor of respondent
Pangilinan.
DOCUMENTS EXECUTED BY THE SHERIFF IN SALE OF REAL
PROPERTY
1. CERTIFICATE OF SALE. After the auction sale, he will
execute in your favor the certificate of sale under Section
25. The one-year period of redemption given to the
obligor starts from the time the certificate of sale is
registered;
2. DEED OF CONVEYANCE. If after one year there is
no redemption, a deed of conveyance is executed. It
is the deed of conveyance that transfers title to the
property.
The certificate of sale does not transfer the ownership of the land
to the purchaser. It is only a memorial that the purchaser was the
highest bidder.
In an extra-judicial foreclosure, there is no need of deed of sale.
Only affidavit of consolidation is needed under the mortgage law.
GOMEZ vs. GEALONE 203 SCRA 474 [1991]
FACTS: The property of the defendant was levied and sold in a
public auction to the highest bidder. One year after, there was
no redemption. Then after the period has expired, here comes
the defendant questioning the auction sale because the
property was exempt from execution and the property really
turned out to be exempt from execution.
ISSUE: Is there a deadline for a judgment debtor to claim
exemption from execution of his property? Can the debtor still
raise the issue that the property is exempt from execution after
the expiration of the redemption period?
RULING: Although the Rules of Court does not prescribe the
period within which to claim the exemption, the rule is,
nevertheless, well-settled that the right of exemption must be
claimed by the debtor himself at the time of the levy or within
a reasonable time thereafter.
Reasonable time, for purposes of the law on exemption, does
not mean a time after the expiration of the one-year period for
judgment debtors to redeem the property sold on execution,
otherwise it would render nugatory final bills of sale on
execution and defeat the very purpose of execution - to put an
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
end to litigation. We now rule that claims for exemption from
execution of properties under Section 13 must be presented
before its sale on execution by the sheriff.
Section 34. Recovery of price if sale not effective; revival of
judgment. — If the purchaser of real property sold on
execution, or his successor in interest, fails to recover the
possession thereof, or is evicted therefrom, in consequence of
irregularities in the proceedings concerning the sale, or because
the judgment has been reversed or set aside, or because the
property sold was exempt from execution, or because a third
person has vindicated his claim to the property, he may on
motion in the same action or in a separate action recover from
the judgment obligee the price paid, with interest, or so much
thereof as has not been delivered to the judgment obligor, or he
may, on motion, have the original judgment revived in his name
for the whole price with interest, or so much thereof as has been
delivered to the judgment obligor. The judgment so revived
shall have the same force and effect as an original judgment
would have as of the date of the revival and no more. (36a)
REVIVAL OF JUDGMENT
An action to revive a judgment in Sec. 6 of Rule 39 is not the
"revival of judgment" referred to in Sec. 34 of Rule 39 where the
terms are actually used in the Rules. In the latter rule, the revival of
judgment is not sought for by the judgment obligee or the
prevailing party. It is sought for by the purchaser of a real property
that was sold in an execution sale. Despite being the purchaser, he
was not able to acquire possession of the property bought by him
or if he ever did acquire possession, he was evicted therefrom for
one reason or another as when the judgment under which the sale
was conducted was reversed, or the property sold to him was
actually exempt from execution, or there was a rightful claimant to
the property. The purchaser, under such situation is allowed by the
Rules to file a motion in the same action or in a separate action for
the purpose of recovering from the judgment obligee the price he
paid, (including interest) for the property in the execution sale. He
may as an option also file a motion to revive the judgment in his
name to recover the price with interest.
In Sec. 34, the judgment has actually been executed unlike in Sec. 6
where the judgment has not been executed on motion within the
five-year period set by the Rules. Sec. 34 seeks to revive the
judgment that was already executed not by filing an independent
action unlike the procedure required to enforce a judgment by
action under Sec. 6.
DISCUSSION
Remember that Revival of judgment in Section 34 is different from
the revival of judgment which is done after the lapse of the 5-year
period within which to execute the judgment by mere motion.
Here, the buyer of the property, the judgment was reversed, so the
sale to the purchaser was wrong because the judgment-debtor
should not have lost. Or if the property was, later on, discovered to
be exempt from execution. Or it was reclaimed by a third person
who has vindicated his claim to the property; the property is really
owned by a third person and not the debtor.
• What can he do? In that same case, he may file a motion
to recover the price from the judgment obligee if, for
example, the price paid was already delivered by the
oblige; or,
• he may also file a separate case; or
234
• for example, in cases where the proceed is greater than
the amount of the debt like the proceed is 1 million and
the debt is only P600,000. In such case, the excess will be
returned to the debtor and that can be recovered by the
purchaser from the debtor. He can have the original
judgment revived in his name for the whole price with
interest or so much thereof as has been delivered to the
judgment debtor. It is just like execution. He will just
revive the judgment but this time he will proceed against
the judgment obligor for the recovery of the price which
he paid during the execution sale. That’s the concept of
this revival of judgment under Section 34.
Section 35. Right to contribution or reimbursement. — When
property liable to an execution against several persons is sold
thereon, and more than a due proportion of the judgment is
satisfied out of the proceeds of the sale of the property of one
of them, or one of them pays, without a sale, more than his
proportion, he may compel a contribution from the others; and
when a judgment is upon an obligation of one of them, as
security for another, and the surety pays the amount, or any
part thereof, either by sale of his property or before sale, he may
compel repayment from the principal. (37a)
REMEDIES IN AID OF EXECUTION
Section 36. Examination of judgment obligor when judgment
unsatisfied. — When the return of a writ of execution issued
against property of a judgment obligor, or any one of several
obligors in the same judgment, shows that the judgment
remains unsatisfied, in whole or in part, the judgment obligee,
at any time after such return is made, shall be entitled to an
order from the court which rendered the said judgment,
requiring such judgment obligor to appear and be examined
concerning his property and income before such court or before
a commissioner appointed by it at a specified time and place;
and proceedings may thereupon be had for the application of
the property and income of the judgment obligor towards the
satisfaction of the judgment. But no judgment obligor shall be
so required to appear before a court or commissioner outside
the province or city in which such obligor resides or is found.
(38a)
Section 37. Examination of obligor of judgment obligor. —
When the return of a writ of execution against the property of
a judgment obligor shows that the judgment remain unsatisfied,
in whole or in part, and upon proof to the satisfaction of the
court which issued the writ, that a person, corporation, or other
juridical entity has property of such judgment obligor or is
indebted to him, the court may, by an order, require such
person, corporation, or other juridical entity, or any officer, or
member thereof, to appear before the court or a commissioner
appointed by it, at a time and place within the province or city
where such debtor resides or is found, and be examined
concerning the same. The service of the order shall bind all
credits due the judgment obligor and all money and property of
the judgment obligor in the possession or in the control of such
person corporation, or juridical entity from the time of service;
and the court may also require notice of such proceedings to be
given to any party to the action in such manner as it may deem
proper. (39a)
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
Section 38. Enforcement of attendance and conduct of
examination. — A party or other person may be compelled, by
an order or subpoena, to attend before the court or
commissioner to testify as provided in the two preceding
sections, and upon failure to obey such order or subpoena or to
be sworn, or to answer as a witness or to subscribe his
deposition, may be punished for contempt as in other cases.
Examinations shall not be unduly prolonged, but the
proceedings may be adjourned from time to time, until they are
completed. If the examination is before a commissioner, he
must take it in writing and certify it to the court. All
examinations and answers before a court commissioner must
be under oath, and when a corporation or other juridical entity
answers, it must be on the oath of an authorized officer or agent
thereof. (40a)
Section 41. Appointment of receiver. — The court may appoint
a receiver of the property of the judgment obligor; and it may
also forbid a transfer or other disposition of, or any interference
with, the property of the judgment obligor not exempt from
execution. (43a)
RECEIVERSHIP
For reference:
RULE 59, Section 1. Appointment of receiver. — Upon a
verified application, one or more receivers of the
property subject of the action or proceeding may be
appointed by the court where the action is pending or by
the Court of Appeals or by the Supreme Court, or a
member thereof, in the following cases:
(a) When it appears from the verified application, and
such other proof as the court may require, that the party
applying for the appointment of a receiver has an
interest in the property or fund which is the subject of the
action or proceeding, and that such property or fund is
in danger of being lost, removed, or materially injured
unless a receiver be appointed to administer and
preserve it;
(b) When it appears in an action by the mortgagee for
the foreclosure of a mortgage that the property is in
danger of being wasted or dissipated or materially
injured, and that its value is probably insufficient to
discharge the mortgage debt, or that the parties have so
stipulated in the contract of mortgage;
(c) After judgment, to preserve the property during the
pendency of an appeal, or to dispose of it according to
the judgment, or to aid execution when the execution
has been returned unsatisfied or the judgment obligor
refuses to apply his property in satisfaction of the
judgment, or otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears that the
appointment of a receiver is the most convenient and
feasible means of preserving, administering, or disposing
of the property in litigation.
During the pendency of an appeal, the appellate court
may allow an application for the appointment of a
receiver to be filed in and decided by the court of origin
and the receiver appointed to be subject to the control
of said court. (1a)
235
Section 42. Sale of ascertainable interest of judgment obligor
in real estate. — If it appears that the judgment obligor has an
interest in real estate in the place in which proceedings are had,
as mortgagor or mortgagee or other- wise, and his interest
therein can be ascertained without controversy the receiver
may be ordered to sell and convey such real estate or the
interest of the obligor therein; and such sale shall be conducted
in all respects in the same manner as is provided for the sale of
real state upon execution, and the proceedings thereon shall be
approved by the court before the execution of the deed. (34a)
Section 43. Proceedings when indebtedness denied or another
person claims the property. — If it appears that a person or
corporation, alleged to have property of the judgment obligor
or to be indebted to him, claims an interest in the property
adverse to him or denied the debt, the court may authorize, by
an order made to that effect, the judgment obligee to institute
an action against such person or corporation for the recovery of
such interest or debt, forbid a transfer or other disposition of
such interest or debt within one hundred twenty (120) days
from notice of the order, and may punish disobedience of such
order as for contempt. Such order may be modified or vacated
at any time by the court which issued it, or by the court in which
the action is brought, upon such terms as may be just. (45a)
EXAMPLE:
The obligee cannot find any property of the obligor. But there
is a rumor that Maria owes the obligor a sum of money. Upon
examination, Maria denies indebtedness. But the obligee has
evidence that Maria owes the obligor money. In this case, the
obligee can ask the court that he be allowed to file a collection case
against Maria on behalf of the obligor.
Q: Can the obligee be considered as a real party in interest in this
case?
A: YES. The obligee is now considered as a representative party.
Section 43 is an example of the phrase, “or a party authorized by
law or these Rules…” under Rule 3, Section 3:
Sec. 3. Representatives as parties. x x x x x A
representative may be a trustee of an express trust, a
guardian, an executor or administrator, or a party
authorized by law or these Rules. x x x x x x
SATISFACTION OF JUDGMENT
Section 44. Entry of satisfaction of judgment by clerk of court.
– Satisfaction of a judgment shall be entered by the clerk of
court in the court docket, and in the execution book, upon the
return of a writ of execution showing the full satisfaction of the
judgment, or upon the filing of an admission to the satisfaction
of the judgment executed and acknowledged in the same
manner as a conveyance of real property by the judgment
obligee or by his counsel unless a revocation of his authority is
filed, or upon the endorsement of such admission by the
judgment obligee or his counsel on the face of the record of the
judgment. (46a)
Section 45. Entry of satisfaction with or without admission. –
Whenever a judgment is satisfied in fact, or otherwise than
upon an execution, on demand of the judgment obligor, the
judgment obligee or his counsel must execute and
acknowledge, or indorse, an admission of the satisfaction as
provided in the last preceding section, and after notice and
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From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
upon motion the court may order either the judgment obligee
or his counsel to do so, or may order the entry of satisfaction to
be made without such admission. (47a)
Section 46. When principal bound by judgment against surety. –
When a judgment is rendered against a party who stands as
surety for another, the latter is also bound from the time that
he has notice of the action or proceeding, and an opportunity at
the surety’s request to join in the defense. (48a)
EFFECT OF JUDGMENTS OR FINAL ORDERS
Section 47. Effect of judgments or final orders. – The effect of a
judgment or final order rendered by a court of the Philippines,
having jurisdiction to pronounce the judgment or final order,
may be as follows:
(a) In case of a judgment or final order against a specific thing,
or in respect to the probate of a will, or the administration
of the estate of a deceased person, or in respect to the
personal, political, or legal condition or status of a
particular person or his relationship to another, the
judgment or final order is conclusive upon the title to the
thing, the will or administration, or the condition, status or
relationship of the person; however, the probate of a will
or granting of letters of administration shall only be prima
facie evidence of the death of the testator or intestate;
(b) In other cases, the judgment or final order is, with respect
to the matter directly adjudged or as to any other matter
that could have been raised in relation thereto, conclusive
between the parties and their successors in interest by title
subsequent to the commencement of the action or special
proceeding, litigating for the same thing and under the
same title and in the same capacity; and
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been
adjudged in a former judgment or final order which
appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or necessary
thereto. (49a)
Res judicata has two concepts. The first is bar by prior judgment
under Rule 39, Section 47(b), and the second is conclusiveness of
judgment under Rule 39, Section 47(c). These concepts differ as to
the extent of the effect of a judgment or final order as follows:
Jurisprudence taught us well that res judicata under the first
concept or as a bar against the prosecution of a second action exists
when there is identity of parties, subject matter and cause of action
in the first and second actions. The judgment in the first action is
final as to the claim or demand in controversy, including the parties
and those in privity with them, not only as to every matter which
was offered and received to sustain or defeat the claim or demand,
but as to any other admissible matter which might have been
offered for that purpose and of all matters that could have been
adjudged in that case.
DISCUSSION
When you say res judicata, there is a first action which
was decided on the merits. It eventually became final and
executory. If the reason why the first case ended is
because it was decided with finality, a second action
236
involving the same parties, the same cause of action, and
the same subject matter as the first case will be barred
under the concept of res judicata.
Even if you say that the parties in the first case were the
parents, and the parties in the second case were the
children, but they are still considered as the same parties.
The parties in the second case are actually in privity with
the parties in the first case, or the former are merely
successors-in-interest of the latter. The former merely
stepped into the shoes of the latter. The second case then
will not prosper because that will disturb the final and
executory decision in the first case. Remember that we
have the doctrine of immutability of judgment – once it
has been decided with finality, the decision can no longer
be modified or amended. It cannot be disturbed. If you
allow another action involving the same subject matter,
cause of action, and parties, the decision in the second
case may be different. That can disturb the decision in the
first case. Litigations have to end at some point in time.
In contrast, res judicata under the second concept or estoppel by
judgment (also called "preclusion of issues" or "collateral
estoppel”) exists when there is identity of parties and subject
matter but the causes of action are completely distinct. The first
judgment is conclusive only as to those matters actually and
directly controverted and determined and not as to matters merely
involved herein. (Citations omitted.)
DISCUSSION
EXAMPLE
There’s a case in succession. Under the law of succession,
if a person has a last will and testament, before that will
can be given effect, it has to pass probate. There must be
a petition filed in court to determine the genuineness and
due execution of the last will and testament. If the court
allows it or it is probated, the decision of the court in so
far as the allowance of the will is concerned would be
conclusive as to the genuineness and due execution of
the last will and testament. The testator was not forced
to make the will; he was of sound mind; and the will was
not forged.
Now, the probate of the will became final because none
appealed the decision. Later on, there is a criminal case
filed for forgery against the proponent of the will, the one
who filed the petition for the probate of the will.
According to the complainant, the last will and testament
was a forgery.
The first case was a special proceeding—probate of will.
The second case is a criminal case—forgery. Definitely,
the causes of action in those two cases are different.
Actually, the parties are different too. In the criminal
case, the real party-in-interest is the State.
But the Supreme Court said that in so far as the
genuineness and due execution of the will, it was already
resolved in the probate proceeding. By allowing the will
to probate, the court, in effect, is saying, among others,
that this will is genuine and not a forgery. If you file now
a criminal case saying that the will is forged, you will be
disturbing that finding of the probate court saying that
the will is not forged. The issue on the genuineness of the
 CIVIL PROCEDURE
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021
will is conclusive in so far as that will is concerned.
Whichever court you go to then, if you raise an issue
which will touch on the genuineness and due execution
of the will, you can no longer raise that because it is
already conclusive in so far as that issue is concerned.
ALMAGRO, ET AL. v. PHILIPPINE AIRLINES, INC.
G.R. No. 204803 | September 12, 2018
Conclusiveness of judgment applies where there is identity of
parties in the first and second cases, but there is no identity of
causes of action. Simply put, conclusiveness of judgment bars
the relitigation of particular facts or issues in another litigation
between the same parties on a different claim or cause of
action.
Here, the rule on conclusiveness of judgment also applies
because the determination of who participated in the illegal
strike subject of the return-to work order, and who defied the
return-to-work order has long been declared settled in Airline
Pilots. In this case, it is undisputed that all petitioners signed
PAL's logbook for return to work returnees/return to work
compliance. They are thus covered by the Court's finding that
those who participated in the strike had lost their employment
Hence, this question cannot be raised again here.
Furthermore, although the parties are not exactly the same, the
concept of conclusiveness of judgment still applies because
jurisprudence does not dictate absolute identity but only
substantial identity of parties. There is substantial identity of
parties when there is a community of interest between a party
in the first case and a party in the second case, even if the latter
was not impleaded in the first case. As this Court explained
in Rodriguez, ALPAP and petitioners "share an identity of
interest from which flowed an identity of relief sought, namely,
the reinstatement of the terminated ALPAP members to their
former positions."
In addition to the doctrine of conclusiveness of judgment, we
find that the principle of stare decisis equally applies to this case.
The time-honored principle of stare decisis et non quieta
movere literally means "to adhere to precedents, and not to
unsettle things which are established." The rule of stare
decisis is a bar to any attempt to relitigate the same issue where
the same questions relating to the same event have been put
forward by parties similarly situated as in a previous case
litigated and decided by a competent court. It is one of policy
grounded on the necessity for securing certainty and stability of
judicial decisions.
Stare decisis et non quieta movere. Stand by the decisions and
disturb not what is settled. Stare decisis simply means that for
the sake of certainty, a conclusion reached in one case should
be applied to those that follow if the facts are substantially the
same, even though the parties may be different. It proceeds
from the first principle of justice that, absent any powerful
countervailing considerations, like cases ought to be decided
alike.
DISCUSSION
In the case of Almagro, et al. v. Philippine Airlines, this shows us that
even if the second case does not involve identity causes of action,
but if there is an issue that was directly resolved in the first case
237
and that was raised again in the second case, the raising of such
issue again is already barred under the principle of conclusiveness
of judgment.
Here, the finding in the first case was that those who participated
in the strike had lost their employment, so the issue was the legality
of the strike. When the NLRC held in the first case that the strike
was illegal and in so far as that strike was concerned, no matter who
are the parties that you implead or whatever cause of action you
will raise in the second case, but in so far with regard to the
question of the legality of the strike and that it was already resolved
in the first case, it is already conclusive in so far as the issue is
concerned. You cannot raise the same act and issue and get
another judgment that it is legal because it has already been
determined in the first case.
EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS
Section 48. Effect of foreign judgments or final orders. – The
effect of a judgment or final order of a tribunal of a foreign
country, having jurisdiction to render the judgment or final
order is as follows:
(a) In case of a judgment or final order upon a specific
thing, the judgment or final order is conclusive upon
the title to the thing; and
(b) In case of a judgment or final order against a person,
the judgment or final order is presumptive evidence
of a right as between the parties and their successors
in interest by a subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. (50a)
DISCUSSION
Section 48 talks about foreign judgments. What is the effect of
foreign judgements and final orders? Actually, based on such
section they are also binding.
We cannot question it anymore. Except if the judgment or final
order suffers from lack of jurisdiction, lack of notice to the party
collusion, fraud, or clear mistake of law.
For example, as we know under our Persons and Family Relations
that divorce is allowed given that your spouse is a foreigner and
that he or she has obtained a divorce abroad where divorce is
allowed, would it be binding under our law? Would it release the
Filipino spouse from that marriage? Or let us say it is the Filipino
spouse who was obtained a divorce decree in another country,
would that be considered here? Actually jurisprudence says yes,
and this is also applicable to that Filipino spouse who obtains the
divorce abroad, as long as it is recognized abroad. But it is not
automatic that you can remarry in the Philippines. That foreign
divorce must first be recognized by our Philippines law. This can be
done through a petition for recognition of a foreign judgment. Why
must this be done? Because that divorce judgement will have to be
enforced in the Philippines. You do not need to enforce such decree
if you have no intention of marrying here in the Philippines or have
no property that needs to be executed upon here. But if needed,
you have to enforce the foreign judgement in the Philippines. So,
you need to (1) file a petition for recognition of a foreign
judgement, and (2) in the same petition also the enforcement of
the same judgment.
 CIVIL PROCEDURE 238
From the Discussion of Atty. Jess Zachael Espejo
2-Viada | A.Y. 2020 – 2021

BANK OF THE PHILIPPINE ISLANDS SECURITIES CORPORATION foreign court. It is not anymore, the province of our courts to
v. GUEVARA determine again the merits of the case.
G.R. No. 167052 | March 11, 2015
The question with regard to jurisdiction as to where to file a petition
There is an evident distinction between a foreign judgment in an for enforcement of foreign judgement, Section 19 (6) of BP 129
action in rem and one in personam. For an action in rem, the provides that is done through the Regional Trial Court.
foreign judgment is deemed conclusive upon the title to the
thing, while in an action in personam, the foreign judgment is
presumptive, and not conclusive, of a right as between the
parties and their successors in interest by a subsequent title. ***END OF FINAL EXAM COVERAGE***
However, in both cases, the foreign judgment is susceptible to
impeachment in our local courts on the grounds of want of
jurisdiction or notice to the party, collusion, fraud, or clear
mistake of law or fact. Thus, the party aggrieved by the foreign
judgment is entitled to defend against the enforcement of such “AVIA PERVIA”
decision in the local forum. It is essential that there should be an (May difficult paths be easy to walk)
opportunity to challenge the foreign judgment, in order for the
court in this jurisdiction to properly determine its efficacy. -A constant reminder from Atty. JZE

As stated in Section 48, Rule 39, the actionable issues are

generally restricted to a review of jurisdiction of the foreign
court, the service of personal notice, collusion, fraud, or mistake
of fact or law. The limitations on review [are] in consonance with
a strong and pervasive policy in all legal systems to limit
repetitive litigation on claims and issues. Otherwise known as
the policy of preclusion, it seeks to protect party expectations
resulting from previous litigation, to safeguard against the
harassment of defendants, to insure that the task of courts not
be increased by never-ending litigation of the same disputes,
and - in a larger sense - to promote what Lord Coke in the
Ferrer's Case of 1599 stated to be the goal of all law: "rest and
quietness." If every judgment of a foreign court were reviewable
on the merits, the plaintiff would be forced back on his/her
original cause of action, rendering immaterial the previously
concluded litigation.

DISCUSSION
In the case of BPI v. Guevara, the Supreme Court first discussed the
distinction of a foreign judgment in an action in rem in section 48
and foreign judgment in an action in personam. But in both cases,
the Supreme Court said that you can only impeach foreign
judgment on grounds of want of jurisdiction, or notice to the party,
collusion, fraud, or clear mistake of law or fact. However, in this
case, which is the most recent pronouncement of the Supreme
Court regarding how to attack a foreign judgement, the Court
explains that it does not usually look at the merits of the case
anymore because that was already decided by the foreign court. If
we are allowed to review the merits of the case, the plaintiff will be
forced back to his or her original cause of action, rendering
immaterial the previously concluded litigation.

Usually, the ground to attack a foreign judgment would be the lack

of jurisdiction or the foreign judgement is contrary to public policy,
like in the cases of Bayot v. CA, Llorente v. CA, and Mijares v.
Ranada.

In this case of BPI, the SC said that “the policy of preclusion, it seeks
to protect party expectations resulting from previous litigation, to
safeguard against the harassment of defendants, to insure that the
task of courts not be increased by never-ending litigation of the
same disputes”. So, if you are attacking a foreign judgement, just
look at the grounds for attacking it. There is no point in attacking
the merits of the case because it has already been decided by the