SIGNIFICANT DOCTRINES IN CIVIL PROCEDURE

BASIC CONCEPTS LIBERAL INTERPRETATION RULES OF THE complying with the prescribed procedure. (Republic of the Philippines vs. Kenrick Development Corporation, G.R. No. 149576, August 8, 2006)

Under Rule 1, Section 6 of the 1997 Rules of Civil Procedure, liberal construction of the rules is the controlling principle to effect substantial justice. Thus, litigations should, as much as possible, be decided on their merits and not on technicalities. This does not mean, however, that procedural rules are to be ignored or disdained at will to suit the convenience of a party. Procedural law has its own rationale in the orderly administration of justice, namely, to ensure the effective enforcement of substantive rights by providing for a system that obviates arbitrariness, caprice, despotism, or whimsicality in the settlement of disputes. Hence, it is a mistake to suppose that substantive law and procedural law are contradictory to each other, or as often suggested, that enforcement of procedural rules should never be permitted if it would result in prejudice to the substantive rights of the litigants. (Abrenica vs. Abrenica, G. R. No. 169420, September 22, 2006) Cases should be determined on the merits, after full opportunity to all parties for ventilation of their causes and defenses, rather than on technicality or some procedural imperfections. In that way, the ends of justice would be served better. Procedural rules are created not to hinder or delay but to facilitate and promote the administration of justice. It is far better to dispose of the case on the merits which is primordial and rather than on technicality, if it be the case, that may result in injustice. (Serrano vs. Galant Maritime Services Inc., G.R. No. 151833, 8-7-2003)

Procedural rules are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to the parties’ substantive rights. Like all rules, they are required to be followed except only for the most persuasive of reasons as when “transcendental matters” of life, liberty or state security are involved. Litigation is not a game of technicalities. It is equally true, however, that every case must be presented in accordance with the prescribed procedure to ensure an orderly and speedy administration of justice. (Mindanao Savings Loan Association vs. Vicenta Vda. De Flores, G.R. No. 142022, 9/7/2005) Technical rules must be suspended whenever the purposes of justice warrant it, such as in this case where substantial and important issues await resolution. (Ricardo S. Silverio Jr. vs. Filipino Business Consultants, R.R. No. 143312, 8/12/2005) In denying or giving due course to a petition, courts should not give premium to form but should consider the important rights of the parties. A substantial compliance with formal requirements is sufficient. Cases should be determined on the merits. The parties should be given full opportunity to ventilate their causes and defenses, rather than on technicalities or procedural imperfections. In that way, the end of justice would be served better. Rules of procedure are mere tools designed to expedite the decision or resolution of cases and other matters pending in court. A strict and rigid application of rules, resulting in technicalities that tend to frustrate rather than promote substantial justice, must be avoided. (Posadas-Moya vs. Greenfield Dev. Corp., G.R. No. 14115, 6-10-2003). The general rule is that rules of procedure must be faithfully complied with and should not be

PROCEDURAL RULES

Like all rules, procedural rules should be followed except only when, for the most persuasive of reasons, they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not

discarded with the mere expediency of claiming substantial merit. The rule, however, is not absolute. Under exceptional circumstances, on the ground of justice and equity, a delay in the filing of an appeal may be excused. The inquiry on this score therefore basically boils down to whether there are ample circumstances surrounding the present case to merit the disregard of the delay in the filing of the petition. If there are none, such delay is fatal to petitioners plea. Heavy workload, which is relative and often self-serving, ought to be coupled with more compelling reasons such as illness of counsel or other emergencies that could be substantiated by affidavits of merits. Standing alone, heavy workload is not sufficient reason to deviate from the 60-day rule for filing a petition for certiorari. (Yupangco vs. CA, G.R. No. 137264, 8-1-2002) RETROACTIVE APPLICATION

pertains to a procedural matter. Contrary to private respondent’s allegation that the matter was no longer pending and undetermined, the issue of whether the petition for certiorari was timely filed was still pending reconsideration when the amendment took effect on September 1, 2001, hence, covered by its retroactive application. (Siena Realty Corp. vs. Gal-Lang, G.R. No. 145169, 5-132004) APPLICABILITY OF THE RULES

Sec. 8 of R.A. 1125 creating the CTA expressly provides that it shall not be governed strictly by technical rules of procedure. (CAB Leasing and Finance Corp. vs. Com of Internal Revenue, G.R. No. 138342, 7-8-2003). Administrative and quasi-judicial bodies like the NLRC, are not bound by the technical rules of procedure in the adjudication of cases filed before them. (C-E Construction Corporation vs. NLRC, G.R. No. 145930, 8-19-2003)

Statutes regulating procedure shall be construed as applicable to pending actions and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent. Thus, a petition for certiorari which was filed out of time under the rules applicable at the time of its filing, may be deemed as timely filed under the new rule promulgated during the pendency of the action which was not yet determined at the time of its passage. (A.M. No. 00-2-03 amending sec. 4, Rule 65 of the 1997 Rules of Civil Procedure effective Sept. 1, 2000) The rule allows filing of the petition for certiorari, not only within 60 days from notice of judgment but also within 60 days from notice of the denial of the motion for reconsideration or new trial, whether required or not. (Ark Travel Express, Inc. vs. RTC of Makati, Branch 150, G.R. No. 137010 8-29-2003) Even if petitioner did not raise or allege the amendment in their motion for reconsideration before it, the Court of Appeals should have taken mandatory judicial notice of this Court’s resolution in A.M. Matter No. 00-02-03 SC. The resolution did not have to specify that it had retroactive effect as it

HIERARCHY OF COURTS

Courts of co-equal and coordinate jurisdiction may not interfere with or pass upon each other’s orders or processes, except in extreme situations authorized by law. (Spouses Suntay vs. Eugenia Gocolay, G.R. No. 144892, September 23, 2005) A lower court cannot reverse or set aside decisions or orders of a superior court, especially of this Court, for to do will negate the principle of hierarchy of courts and nullify the essence of review. A final judgment, albeit erroneous, is binding on the whole world. Thus, it is the duty of the lower courts to obey the decisions of this court and render obeisance to its status as the apex of the hierarchy of courts. (Manila Electric Company vs. Philippine Consumers Foundation, Inc., et. al., G.R. No. 101783, 01/23/2002) The Court’s original jurisdiction to issue writs of certiorari, as in the case at bar, prohibition, mandamus, quo warranto, habeas corpus and injunction is shared by this Court with the Regional Trial

Courts and the Court of Appeals. A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is an established policy necessary to avoid inordinate demands upon the Court’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to preclude the further clogging of the Court’s docket. (Lim vs. Vianzon, G.R. No. 137187, August 3, 2006)

conclusive upon this Court and generally, will not be reviewed on appeal. (Vibram Manufacturing Corp. vs. Manila Electric Company, G.R. No. 149052, August 9, 2005.)

The Court will not disturb the findings of facts of trial courts unless there is a showing that it failed to consider facts and circumstances, which if taken into account, would materially affect the resolution of a case. (People of the Philippines vs. Antonio Mendoza, G.R. No. 152589 & No. 152758, January 31, 2005) It must be stressed that only questions of law may be raised in petitions to review decisions of the Court of Appeals filed before this Court. The factual findings of the CA affirming those of the trial court are final and conclusive. They cannot be reviewed by the SC save only in the following circumstances: (1) when the factual conclusion is a finding grounded entirely on speculations, surmises and conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of act are conflicting; (6) when the CA went beyond the issues of the case in making its findings, which are further contrary to the admissions of both the appellant and the appellee; (7) when the CA’s findings are contrary to those of the trial court; (8) when the conclusions do not cite the specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondents; and (10) when the CA’s findings of fact, supposedly premised on the absence of evidence, is contradicted by the evidence on record. (Republic of the Philippines and Cavite College of Fisheries vs. Maxima Lensico, G.R. No. 158919, August 9, 2005) Findings of fact of the trial court, when affirmed by the Court of Appeals, are binding upon the Supreme Court. It is not the function of the Supreme Court to weigh anew the evidence already passed upon by the Court of Appeals for these are deemed final

The Supreme Court has the discretionary power to take cognizance of a petition which does not observe the principle of hierarchy of courts for compelling reasons or if warranted by the nature of the issues raised, or in the interest of speedy justice as when the case had been pending since 1996. (Ark Travel Express Inc. vs. Abrogar, G.R. No. 137010, 8-29-2003)

RULE-MAKING POWER

In modifying the pertinent provisions of the Rules of Court insofar as they provide the direct appeals from the RTC to the SC in case where the penalty imposed is death, reclusion perpetua or life imprisonment and other pertinent resolution on the matter, the Supreme Court merely exercised its power to promulgate rules concerning pleadings, practice and procedure. Procedural matters fall squarely within the rule-making prerogative of the Supreme Court. The rule allowing an immediate review by the Court of Appeals before the case is elevated to the Supreme Court on automatic review is a procedural matter. (People vs. Mateo, G.R. No. 147678-87, 7-7-2004) FACT OF LOWER

FINDINGS OF COURTS

Basic is the rule that factual issues are beyond the province of this Court in a petition for review, for it is not its function to review evidence all over again. Although there are exceptions, petitioner did not show that this case is one of them. Factual findings of the Court of Appeals are binding and

and conclusive and may not be reviewed on appeal. A departure from the general rule may be warranted where the findings of fact of the Court of Appeals are contrary to the findings and conclusions of the trial court, or when the same is unsupported by the evidence on record. (Changco vs. Court of Appeals, et. al., G.R. No. 128033, 03/20/2002)

government, when it comes to the court to litigate with one of its citizens, must submit to the rules of procedure and its rights and privileges at every stage of the proceedings are substantially in every respect the same as those of its citizens; it cannot have a superior advantage. (National Housing Authority vs. Garcia, G.R. No. 143230,8- 20-04) WHEN TO APPLY ESTOPPEL Estoppel must be applied only in exceptional cases, as its misapplication could result in a miscarriage of justice. (Ouero vs. Court of Appeals, et. al., G.R. No. 131282, 01/04/2002) Assuming that the Court of Appeals should have dismissed Guevarra’s appeal on technical grounds, Pajuyo did not ask the appellate court to deny the motion for extension and petition for review at the earliest opportunity. Instead, Pajuyo vigorously discussed the merits of the case. It was only when the Court of Appeals ruled in Guevarra’s favor that Pajuyo raised the procedural issue against Guevarra’s petition for review. A party who, after voluntarily submitting a dispute for resolution, receives an adverse decision on the merits, is estopped from attacking the jurisdiction of the court. Estoppel sets in not because the judgment of the court is valid and conclusive adjudication, but because the practice of attacking the court’s jurisdiction after voluntarily submitting to it is against public policy. (Pajuyo vs. CA G.R. No. 146364, 6-3-2004) WHEN NOT TO APPLY ESTOPPEL • The fundamental rule is that, the lack of jurisdiction of the court over an action cannot be waived by the parties, or even cured by their silence, acquiescence or even by their express consent. Further, a party may assail the jurisdiction of the court over the action at any stage of the proceedings and even on appeal. •

The general rule is that the findings of facts of quasi-administrative bodies are conclusive and not subject to review by the Court. However, this rule does not apply if such findings are tainted with mistake or are not supported by substantial evidence. (Office of the Ombudsman vs. Angeles, G.R. No. 152244, 9- 27-04) Factual findings by quasi-judicial agencies, such as the NLRC, which have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only respect but even finality. (Kar Asia, Inc. vs. Corona, G.R. No. 154985, 8- 24-04)

ESTOPPEL

While an order or decision rendered without jurisdiction is a total nullity and may be assailed at any stage, active participation in the proceedings in the court, which rendered the order or decision, will bar such party from attaching its jurisdiction. (Sps. Gonzaga, et. al. s. Court of Appeals, et. al., G.R. No. 144025, 12/27/2002). An election of a specific theory for relief operates as bar to the subsequent adoption of a different and wholly inconsistent theory.

Under the principle of judicial estoppel, a party is bound by his judicial declarations and may not contradict them in a subsequent action or proceeding involving the same properties. The reason for the principle is to prohibit fraud and the deliberate shifting of position to suit the exigencies of each particular case that may arise concerning the subject matter of the controversy. That the petitioner is a government agency tasked to administer the property does not bar the application of the principle. This is so because when a sovereignty submits itself to the jurisdiction of the court and participates therein, its claims and rights of the private parties under similar circumstances. The

In Javier vs. Court of Appeals, the Court ruled that “if the party commits error in filing his suit or proceeding in a court that lacks jurisdiction to take cognizance of the same, such act may not at once be deemed sufficient basis of estoppel. It could have been the result of an honest mistake or of divergent interpretations of doubtful legal provisions. If any fault is to be imputed to

a party taking such course of action, part of the blame should be placed on the court which shall entertain the suit thereby lulling the parties into believing that they pursued their remedies in the correct forum under the rules. It is the duty of the court to dismiss an action whenever it appears that the court had no jurisdiction over the subject matter, should the Court render a judgment without jurisdiction, such judgment may be impeached or annulled for lack of jurisdiction, within ten (10) years from the finality of the same. (Duero vs. Court of Appeals, et. al., G.R. No. 131282, 01/04/2002) JURISDICTION

Macasaet vs. People Philippines, G.R. No. February 23, 2005)

of the 156747,

Well – settled is the rule that what determines the nature of an action as well as which court has jurisdiction over it are the allegations of the complaint and the character of the relief sought. (Ross Rica Sales Center Inc. vs. Spouses Ong, G.R. No. 132197, August 16, 2005) To determine which court has jurisdiction over the action, the complaint must allege the assessed value of the real property subject of the complaint or interest thereon. In this case, the complaint of the respondent against the petitioner is for recovery of possession of real property but the complaint does not contain any allegation of the assessed value of the lot. There is no showing on the face of the complaint that the RTC had jurisdiction over the action of the respondent. Moreover, as gleaned from the receipt of realty tax payments issued to the respondent, the assessed value of the property in 1993 was P8,300.00. patently then, the MTC and not the RTC had exclusive jurisdiction over the action of the respondent. Hence, all the proceedings in the RTC, including its decision, are null and void. (Laresma, vs. Abellana, G.R. No. 140973, 11-11-04)

Jurisdiction is the authority to hear and determine a cause. Jurisdiction over the subject matter is the power to hear and determine the general classes to which the proceedings in question belong. Jurisdiction over the subject matter is conferred by law and not by the consent or acquiescence of any or all of the parties or by erroneous belief of the court that it exists. Basic is the rule that jurisdiction over the subject matter is determine by the cause or causes of action as alleged in the complaint. But where the actual issues are evident from the records of the case, then jurisdiction over the subject matter need not depend upon the literal averments in the complaint, but on the law as applied to established facts. (Allied Domecq Phil., Inc., vs. Villon, G.R. No. 156264, 9-30-04) Jurisdiction is conferred by the Constitution or by law. It cannot be conferred by the will of the parties, nor diminished or waived by them. The jurisdiction of the court is determined by the averments of the complaint or Information, in relation to the law prevailing at the time of the filing of the criminal complaint or Information, and the penalty provided by law for the crime charged at the time of its commission. (Jaime Guinhawa vs. People of the Philippines, G.R. No. 162822, August 25, 2005) In criminal actions, it is a fundamental rule that venue is jurisdictional. Thus, the place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction. (Allen •

Generally, jurisdiction is determined by the law in force at the time of the institution of the action. When the petitioner filed the ejectment case on May 17, 1979, the applicable law was P.D. 1367, Section 1 which provided that labor arbiters shall not entertain claims for moral or other forms of damages. However, on May 1, 1980, during the pendencey of this case, P.D. 1691 was promulgated, amending of P.D. 1367 granting the Labor Arbiter jurisdiction over money claims. The later law, P.D. 1367 by P.D. 1691, is a curative statute which corrected the lack of jurisdiction of the labor arbiters at the start of the proceedings and therefore should be given retroactive application vis-à-vis pending proceedings. It was intended to correct a situation where two different tribunals had jurisdiction over separate issues arising

from the same labor conflict. (UST vs. CA, G.R. No. 124250, 10-18-04) ORIGINAL vs. EXCLUSIVE •

136109, 8-1-2002) Jurisdiction over the subject matter is determined by the allegations of the complaint. It is not affected by the pleas set up by the defendant in his answer or in a motion to dismiss, otherwise, jurisdiction would be dependent on his whims. The allegations in petitioner’s complaint show that the action is one for recovery of possession, not one which involves an agrarian dispute. The respondent’s only basis in assailing the jurisdiction of the trial court is that the subject matter of the case is an agricultural land and that they do not deny at all the allegation of the complaint of petitioners that there is no tenancy or leasehold agreement between them unmistakably show that there is no agrarian dispute to speak of over which the DARAB has exclusive original jurisdiction. (Snduco vs. Diaz, G.R. No. 147444, 10-01-04)

Original jurisdiction means jurisdiction to take cognizance of a cause at its inception, try it and pass judgment upon the law and facts, while exclusive jurisdiction precludes the idea of co-existence and refers to jurisdiction possessed to the exclusion of others. (Cubero vs. Laguna West Multi-Purpose Cooperatives, Inc., G.R. No. 166833, December 5, 2006)

OVER THE PERSON OF THE PARTIES

Courts acquire jurisdiction over the plaintiffs upon the filing of the complaint. On the other hand, jurisdiction over the defendants in a civil case is acquired either through the valid service of summons upon them or through their voluntary appearance in court and their submission to its authority. As a rule, if defendants have not been summoned, the court acquires no jurisdiction over their person and a judgment rendered against them is null and void. To be bound by a decision, a party should first be subject to the court’s jurisdiction. (Bank of the Philippine Islands vs. Spouses Evangelista, et. al., G.R. No. 146553, 11/27/2002) A court acquires jurisdiction over a person through either a valid service of summons or the person’s voluntary appearance in court. A court must necessarily have jurisdiction over a party for the latter to be bound by a court decision.

Generally accepted is the principle that no man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by judgment rendered by a court. (Padilla, et. al. vs. Court of Appeals, et. al., G.R. No. 123893, 11/22/2001) JURISDICTION MATTER OVER THE SUBJECT

The well entrenched principle is that the jurisdiction of the court over the subject matter on the existence of the action is determined by the material allegations of the complaint and the law, irrespective of whether or not the plaintiff is entitled to recover all or some of the claims or reliefs sought therein. We had ruled that the jurisdiction of the court over the nature of the action and the subject matter thereof cannot be made to depend upon the defenses set up in the court or upon a motion to dismiss for, otherwise, the question of jurisdiction would depend almost entirely on the defendant. The MTC does not lose its jurisdiction over an ejectment case by the simple expedient of a party raising as a defense therein the alleged existence of a tenancy relationship between the parties. (Sumawang vs. De Guzman, G.R. No. 150106) The MTC does not lose its jurisdiction over an ejectment case by the simple expedient of a party raising as a defense therein the alleged existence of a tenancy relationship between the parties. But it is the duty of the court to receive evidence to determine the allegation of tenancy. If after hearing, tenancy had in fact been shown to be the real issue, the court should dismiss the case for lack of jurisdiction. (Hilado vs. Chavez, G.R. No. 134742, 9- 22-04)

It is axiomatic that jurisdiction over the subject matter of a case is conferred by law and is determined by the allegations in the complaint and the character of the relief sought irrespective of whether the plaintiff is entitled to all or some of the claims. (RCPI vs. CA, G.R. No.

Jurisdiction is not affected by the pendency of another action or because the plaintiff is guilty of forum shopping. These matters cannot strip the court of jurisdiction because jurisdiction is fixed by law. (Agilent Technologies vs. Integrated Silicon Technology Phils. Corp., G.R. No. 154618, 4-14-04)

OVER THE ISSUES

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. The rule rests on the fundamental tenets of fair play. (Commissioner of Internal Revenue vs. Mirant Pagbilao Corporation, G.R. No. 159593, October 12, 2006)

DOCTRINE OF PRIMARY JURISDICTION

experience and services of the administrative tribunal to determine technical and intricate matters of fact, and a uniformity of ruling is essential to comply with the premises of the regulatory statute administered. The objective of the doctrine of primary jurisdiction is to guide a court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court. It applies where the claim is originally cognizable in the courts and comes into play, whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, has been placed within the special competence of an administrative body; in such case the judicial process is suspended pending referral of such issues to the administrative body for its view. (Smart vs. Piltel vs. NLRC, G.R. No. 151908; Globe vs. CA G.R. No. 152 063, 8-12-2003) NON-INTERFERENCE

The doctrine of primary jurisdiction precludes the courts from resolving a controversy over which jurisdiction has initially been lodged with an administrative body of special competence. For agrarian reform cases, jurisdiction is vested in the Department of Agrarian Reform (DAR); more specifically, in the Department of Agrarian Reform Adjudication Board (DARAB). (Bautista vs. Vda. De Villena, G.R. No. 152564,9- 1304) The doctrine of Primary Jurisdiction applies only where the administrative agency exercise its quasi-judicial or adjudicatory function. Thus, in cases involving specialized disputes, the practice has been to refer the same to an administrative agency of special competence pursuant to the doctrine of primary jurisdiction. The courts will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative tribunal prior to the resolution of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge,

In the absence of bad faith, the Court would not disturb the Ombudsman’s findings of absence of bad faith because of its policy of non-interference with the exercise by the Ombudsman of its investigatory and prosecutory powers. The policy consistently adopted in the Court’s decisions is not only a recognition of the authority of the Ombudsman mandated by the Constitution but for practicality as well. The courts will be graciously hampered by innumerable petitions assailing the dismissal of investigatory proceedings by the Office of the Ombudsman. (Flores vs. Office of the Ombudsman, G.R. No. 136769, 9-17-2002) A matter already on review by an appellate court may not be interfered with by the lower court. (New Sampaguita Builders Constructions, IN., et. al. vs. Estate of Canoso, et. al., G.R. No. 151447, 02/14/2003)

LACK OF JURISDICTION

Any decision rendered without jurisdiction is a total nullity and may be struck down at any time,

even on appeal before this Court; the only exception is when the party raising the issue is barred by estoppel. (Spouses Suntay vs. Eugenia Gocolay, G.R. No. 144892, September 23, 2005) EXCESS OF JURISDICTION ABSENCE OF JURISDICTION vs.

of certiorari. (Jaro vs. Court of Appeals, et. al., G.R. No. 127536, 02/19/2002) RESIDUAL JURISDICTION vs. RESIDUAL PREROGATIVES • Residual jurisdiction is embodied in Section 9 of Rule 41 of the Rules of Court. The residual jurisdiction of trial courts 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 record 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.

Excess of jurisdiction as distinguished from absence of jurisdiction means that an act, though within the general power of a tribunal, board, or officer, is not authorized and invalid with respect to the particular proceeding because the conditions which alone authorize the exercise of the general power in respect of it are wanting. Without jurisdiction means lack or want of legal power, right, or authority to hear and determine a cause or causes, considered either in general or with reference to a particular matter. It means lack of power to exercise authority. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or so gross as to amount to an evasion of a positive duty or to virtual refusal to perform the duty enjoined or to act at all in contemplation of law. (Sia vs. Villanueva, G.R. No. 152921, October 9, 2006)

The CA’ s motu proprio dismissal of petitioner’s Complaint could not have been based therefore, on residual jurisdiction under Rule 41. Undeniably, such order of dismissal was not one for the protection and preservation of the rights of the parties, pending the disposition of the case on appeal. What the CA referred to as residual prerogatives were the general residual powers of the courts to dismiss an action motu proprio upon the grounds mentioned in Section 1 of Rule 9 of the Rules of Court and under authority of Section 2 of Rule 1 of the same Rules. (Katon vs. Palanca, Jr. G.R. No. 151149, 9- 7-04)

ERROR OF JURISDICTION vs. ERROR OF JUDGMENT • An error of judgment is one that the court may commit in the exercise of its jurisdiction. Such an error does not make the court’s decision void and it may serve only as a ground for reversal if it is shown that prejudice has been caused by it. An error of judgment can be reviewed only by an appeal.

On the other hand, an error of jurisdiction is one where the act complained of was issued by the court, officer or quasi-judicial body without or in excess of jurisdiction or with grave abuse of discretion which is tantamount to lack or excess of jurisdiction. An error of jurisdiction renders a judgment void or at least voidable and which error is correctible only by the extraordinary writ

JURISDICTION; fees

Payment

of

docket The matter of payment of docket fees is not a mere triviality. These fees are necessary to defray court expenses in the handling of cases. Consequently in order to avoid tremendous losses to the judiciary, and to the government as well, the payment of docket fees cannot be made dependent on the outcome of the case, except when the claimant is a pauper litigant. (Emnace vs. CA, G.R. No. 126334, 11/23/2003)

Although the payment of the proper docket fees is a jurisdictional requirement, the trial court may allow the plaintiff in an action to pay the same within a reasonable time before the expiration of the applicable prescriptive or reglementary period. If the plaintiff fails to comply within this requirement, the defendant should timely raise the issue of jurisdiction or else he would be considered in estoppel. In the latter case, the balance between the appropriate docket fees and the amount actually paid by the plaintiff will be considered a lien or any award he may obtain in his favor. (Emnace vs. Court of Appeals, et. al., G.R. No. 126334, 11/23/2001)

Indeed, a court acquires jurisdiction over the claim of damages upon payment of the correct docket fees. (Nestle Philippines, Inc. vs. FY Sons, Inc., G.R. No. 150789, May 5, 2006)

It is well - established that the payment of docket fees within the prescribed period is mandatory for the perfection of an appeal. This is so because a court acquires jurisdiction over the subject matter of the action only upon the payment of the correct amount of docket fees regardless of the actual date of filing of the case in court. The payment of the fullamount of the docket fee is a sine qua non requirement for the perfection of an appeal. The court acquires jurisdiction over the case only upon the payment of the prescribed docket fees. (Meatmasters International Corp. vs. Lelis Integrated Development Corp., G.R. No. 163022, February 28, 2005)

JURISDICTION OF RTC OVER CASES INVOLVING TITTLE TO REAL PROPERTY

Appeal to the CA shall be taken within 15 days from the notice of judgment or final order appealed from. Within the same period appellant shall pay to the clerk of court which rendered the final order appealed from, the full amount of the appellate court docket and other lawful fees. The payment of the appellate docket fee is not a mere technicality of law or procedure. It is an essential requirement, without which the decision or final order appealed from would become final and executory as if no appeal was filed at all. (Papa, et. al. vs. De Leon, G.R. No. 140858, 11/27/2001)

The Regional Trial Court, formerly the Court of First Instance, is a court of general jurisdiction. All cases, the jurisdiction over which is not specifically provided for by law to be within the jurisdiction of any other court, fall under the jurisdiction of the Regional Trial Court. But the Regional Trial Court is also a court of limited jurisdiction over, among others, cadastral and land registration cases. All proceedings involving title to real property or specifically land registration cases, including its incidents such as the issuance of owner’s duplicate certificate of title, are matters cognizable by the Regional Trial Courts have jurisdiction over all actions involving possession of land, except forcible entry and illegal detainer. (Durisol Philippines, Inc. vs. Court of Appeals, er. Al., G.R. No. 121106, 02/20/2002) Note: Jurisdiction under R.A. No. 7691 is subject to assessed value of the land.

ASSESSED VALUE OF PROPERTY AS SHOWN BY THE TAX DECLARATION AS BASIS OF JURISDICTION OF COURT

Under paragraph 2 of Administrative Circular No. 09-94, the exclusion of the term “damages of whatever kind” in determining the jurisdiction amount under Section 19(8) and Section 33(1) of B.P. Blg. 129, as amended by R.A. 7691, applies to cases where the damages are

merely incidental to or a consequence of the main cause of action, the amount of such claim shall be considered in determining the jurisdiction of the court. (Ouano vs. PGTT International Investment Corporation, et. al., G.R. 134230, o7/17/2002) • When the action involves ownership and possession of real property, the jurisdiction over the subject matter of the claims is determined by the assessed value, not the market value, thereof, pursuant to Batas Pambansa Blg. 129, as amended by R.A. 7691.

Moreover, the finding of the judge that the value of the lot is higher than that indicated in the tax declaration is highly speculative. It is elementary that the tax declaration indicating the assessed value of the property enjoys the presumption of irregularity as it has been issued by the proper government agency. (Ouano vs. PGTT International Investment Corporation, et. al., G.R. No. 134230, 07/17/2002) INCAPABLE OF ESTIMATION PECUNIARY

it being a case in which the subject of litigation for permanent injunction against the termination of his contract, is incapable of pecuniary estimation. The prayer of respondent Uy in Civil Case No. 99-0425 to permanently enjoin petitioners from rescinding the LCA, is not forbidden under RA 7227, PD 1818, and RA 8975. Said prohibitive laws cover only temporary or preliminary restraining orders or injunctions to prevent unjustified stoppage of the implementation of government projects; but not permanent injunctions. Thus, the Parañaque RTC has jurisdiction to hear respondent Uy’s action and even grant his supplication for a permanent injunction. (BCDA vs. UY, G.R. No. 144062, November 2, 2006) RTC’s JURISDICTION – ENFORCEMENT OF GUARD SERVICE CONTRACT

Significantly, the respondents’ complaint has not sought to recover the possession or ownership of the subject land. Rather, it is principally an action to enjoin petitioner Bokingo and his representatives from committing acts that would tend to prevent the survey of the subject land. It cannot be said therefore that it is one of a possessory action. The respondents, as plaintiffs in the court a quo, to be entitled to the injunctive relief sought, need to establish the following requirements: (1) the existence of a right to be protected; and (2) that the acts against which the injunction is to be directed are violative of the said right. As such, the subject matter of litigation is incapable of pecuniary estimation and properly cognizable exclusively by the court a quo, a Regional Trial Court under Section 19 (1) of BP Blg. 129, as amended by RA 7691. (Bokingco vs. CA, G.R. No. 161739, May 4, 2006) • In the factual setting at bar, the Court rules that the Parañaque RTC has jurisdiction over the complaint of respondent Uy

It is well settled in law and jurisprudence that where no employer-employee relationship exists between the parties and no issue is involved which may be resolved by reference of the Labor Code, other labor statutes, or any collective bargaining agreement, it is the Regional Trial Court that has jurisdiction. (Urbanes, Jr. vs. Secretary of Labor and Employment, et. al., G.R. No. 122791, 02/19/2003)

JURISDICTION of DARAB The jurisdiction of DARAB is limited to cases involving a tenancy relationship between the parties. The following elements are indisputable to establish a tenancy relationship: (1) the parties are the landowner and the tenant or lessee; (2) the subject matter of the relationship is an agricultural land; (3) there is consent between the parties to the relationship; (4) the purpose of the relationship is to bring about agricultural production; (5) there is personal cultivation on the part of the lessee; and (6) the harvest is shared between the landowner and the tenant or agricultural lessee. (Almuete vs. Andres, G.R. No. 122276, 11/20/2002) • In an action for unlawful detainer, the defendants contended in their answer that they entered the land subject of the action in their own right and have acquired the same by ordinary prescription and that the Regional Director of the DENR has already upheld their possession in question and that they were entitled to the land because they have successfully proven their actual, notorious, physical, open and uninterrupted possession thereof since 1960. Defendants also contend that it is the DENR, not the courts which can decide the issue of possession. Plaintiff contends, on the other hand, that the decision of the DENR is not yet final.

possession is a matter that may be addressed to the courts. But once the DENR has decided, particularly through the grant of a homestead patent, and the issuance of the certificate of title, its decision on this point will normally prevail. (Heirs of Lourdes Saez Sabanpan vs. Cormoposa, G.R. No. 152807, 8-12-2003). • A boundary dispute arose between the Municipality of Kananga and the City of Ormoc. What court has jurisdiction over the case?

Ruling: Since there is no legal provision specially governing jurisdiction over boundary disputes between a municipality and an independent component city, it follows that regional trial courts have the power and the authority to hear and determine such controversy. (Municipality of Kanaga vs. Madrona, G.R. No. 141375, 4-30-2003)

Mere invocation of agricultural tenancy does not ipso facto divest the MTC of jurisdiction over a complaint for ejectment. (Rivera vs. Santiago, G.R. No. 146501, 828-2003). However, when tenancy is averred as a defense and is shown prima facie to be the real issue, the MTC must dismiss the case for lack of jurisdiction. Before doing so, the MTC must determine if such relationship was indeed the real issue. Because jurisdiction is determined by the allegations of the complaint, the MTC did not automatically lose its jurisdiction simply because respondents raised tenancy as a defense. It continued to have the authority to hear the case precisely to determine whether it had jurisdiction to dispose of the ejectment suit on its merits. (Rivera vs. Santiago, G.R. No. 146501, 8-28-2003) OF DIRECTOR OF

Ruling: Under the Public Land Act, the management and disposition of public land is under the primary control of the directors of Lands (now the Director of the Lands Management Bureau or LMB, subject to review by the DENR Secretary. As a rule, then, courts have no jurisdiction to intrude upon matters properly falling within the powers of the LMB. The powers given to the LMB and DENR to alienate and dispose of public land does not however, divest regular courts of jurisdiction over possessory actions instituted by occupants or applicants to protect their possessions. The power to determine who has actual physical possession of public land and who has the better right of possession remains with the courts. Therefore, while the issue as to who among the parties are entitled to a piece of land remains pending with the DENR, the question of recovery of

JURISDICTION LANDS

The jurisdiction of the Director of Lands is limited to public land and does not extend to land privately owned. A free patent which purports to convey land to which the government no longer has title at the time of its issuance does not vest any title in the patentee as against the registered owner. (Castillo vs. Balinghasay et. al., G.R. No. 150976, October 18, 2004)

JURISDICTION OF NATIONAL HOUSING AUTHORITY

Under Section 1 of P.D. 1344, the National Housing Authority has the exclusive jurisdiction to hear and decide the following cses: a) unsound real estate business practice; b) calims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the project owner, developer, dealer, dealer, broker, or salesman; and c) cases involving specific performance or contractual and statutory obligations filed by buyers of subdivision lot or condominium unit against the owner, dealer, dealer, broker, or salesman. (Spouses Kakilala vs. Iluminada, G.R. No. 143233, 10-1804)

Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control of the Ombudsman. Its power to investigate and prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. The Ombudsman on the other hand is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil, and criminal liability in every case where the evidence warrants. (Office of the Ombudsman vs. Enoc, G.R. No. 14595768, 01/25/2002) VENUE • Actions affecting title to or possession or real property or an interest therein (real actions), shall be commenced and tried in the proper court that has territorial jurisdiction over the area where the real property is situated. On the other hand, all other actions, (personal actions) shall be commenced and tried in the proper courts where the plaintiff resides or where the defendant or any of the principal defendants resides. (Cabutihan vs. Landcenter Construction and Development Corporation, G.R. No. 146594, 06/10/2002).

JURISDICTION; Ombudsman The power to investigate and to prosecute granted by the law to the ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause “any illegal act or omission of any public official” is broad enough to embrace any crime committed by a public officer or employee. Section 15 of RA 6770 gives the ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The grant of this authority does not necessary imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise of the Ombudsman of his primary jurisdiction over the cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. It must be stressed that the powers of the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and nonfeasance committed by public officers and employees during their tenure of office. The jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of a Special Prosecutor. The Office of the Special •

Referring to the place where a civil action is tried, venue, unlike jurisdiction which is conferred by law, is essentially a rule of procedure which looks primarily at the convenience of the litigants. A plaintiff impliedly elects venue by choosing the court where he files his complaint. Venue can even be subject to agreement by the parties. Under the old rules, such agreement to venue may be impliedly made by the defendant if he seasonably fails to object to it. While the present 1997 Rules of Civil Procedure does not contain similar provisions to Section 3 and 4 of the old rules, the deletion however cannot be taken to mean that objection to venue may not be raised at any time but that, rather, an objection to venue may still be made in an answer, if no motion to dismiss is filed. (Gumabon vs. Larin, G.R. No. 142523, 11/27/2001) IMPROPER VENUE The wrong venue, being merely a procedural infirmity and not jurisdictional impediment, does not, without timely exception, disallow the court to take cognizance of and proceed with the case. In failing to raise his objection to it either in a motion to dismiss or in his answer coupled by his having sought relief from the court and favorable judgment on his demurer to evidence, the party himself has evidence an acceptance on the venue of the action. (Gumabon vs. Larin, G.R. No. 142523, 11/27/2001).

part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff or which the latter may maintain an action for recovery of damages. A cause of action is sufficient if a valid judgment may be rendered thereon if the alleged facts were admitted or proved. In order to sustain a motion to dismiss for lack of cause of action, the complaint must show that the claim for relief does not exist, rather than that a claim has been merely defectively stated or is ambiguous, indefinite or uncertain. (Westmont Bank vs. Ong, G.R. No. 132560, 01/30/2002)

The test of the sufficiency of the allegations constituting the cause of action is whether, admitting the facts alleged, the court could render a valid judgment on the prayers. This test implies that the issue must be passed upon on the basis of the bare allegations in the complaint. The court does not inquire into the truth of such allegations and declare them to false. To do so would constitute a procedural error and a denial of the plaintiffs right to due process. (Sta. Ana Homeowner’s Assos. Vs. Gaston, G.R. No. 141961, 01/23/2002) Basic is the rule that only the allegations of the complaint may be used to determine whether a cause of action is being pleaded. Whether these are true or false is unimportant at this point. The test is, assuming the allegations to be true, can a valid judgment, as prayed for by the plaintiff, be rendered by the court? If so, then the complaint states a cause of action.

ACTIONS

It is axiomatic that the nature of an action is determined by the material allegations thereof and the reliefs prayed for therein, whether or not the plaintiff is entitled to such reliefs or only to some of them. The caption of the complaint is not determinative of the nature of the action. (National Housing Authority vs. Baello, et al., G.R. No. 143230, 8-20-04)

CAUSE OF ACTION • A cause of action is an act or omission by which a party violates a right of another. The essential elements of a cause of action are: (1) a legal right or rights of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the

In the present case, the complaint contains sufficient allegations to implicate Licaros in an alleged conspiracy to accumulate ill-gotten wealth. The contentions that his acts were done in good faith, or by the monetary Board are matters of defense that cannot abate the Complaint upon a motion to dismiss. The herein petitioners are seeking the dismissal of the present case, because 1) the action imputed to Licaros as CB

governor were allegedly official acts of the members of the Monetary Board acting as a collegial body; 2) the acquisition was done through a public bidding and in good faith. These contentions are evidently matters of defense, the veracity of which must be determined in a full-blown trial (or in a pre-trial stipulation), and not in a mere motion to dismiss. (Heirs of Licaros vs. Sandiganbayan, G.R. No. 157438, 1118-04) • HSBANK is being sued for unwarranted failure to pay the checks notwithstanding the repeated assurance of the drawer Thompson as to the authenticity of the checks and frequent directives to pay the value thereof to Catalan. Her allegations in the complaint that the gross inaction of HSBANK on Thompson’s inactions, as well as its evident failure to inform Catalan of the reason for its continued inactions and non-payment of the checks are sufficient statements of clear abuse of right for which it may be held liable to Catalan for any damages she incurred resulting therefrom.

the work of the trial court to save unnecessary costs and expense.” While nothing in the rules expressly prohibits consolidation of appealed case with a case being heard originally, consolidation of the two cases would not serve the purposes cited above if: (1) it would only delay the resolution of the two cases; (2) the two cases raise evidently intertwined; and (3) it does not appear certain that consolidation is a wise step where one or both cases had already been partially heard. The propriety of consolidation rests upon the sound discretion of the trial court judge. (Republic vs. Mangrobang, G.R. No. 130907, 11/27/2001) REAL ACTIONS Real actions, as opposed to personal actions, are those which affect the title to or possession of real property. Where a contrary claim to ownership is made by an adverse party, where the relief prayed for cannot be granted without the court deciding on the merits the issue of ownership and title, more specifically so as to who between the contending parties, would have a better right to the property, the case can only be but a real action. (Gumabon vs. Larin, G.R. No. 142523, 11/27/2001) • The cancellation of real estate mortgage filed by herein petitioner was primarily an action to compel private respondent bank to return to him the properties over which the bank had already initiated foreclosure proceeding because of the cancellation of the said respondent bank of the omnibus credit line. The prime objective is to recover said real properties. Respondent bank had already initiated the extrajudicial proceedings, and were it not for the timely issuance of restraining order secured by petitioner in the lower court, the same would have already been sold at a public auction. In sum, the cancellation of the real mortgage is a real action considering that a real mortgage is a real right and a real property by itself. An action for cancellation of real estate mortgage is necessarily an action affecting title to the property. It is, therefore, a real action which should be commenced and tried in the place where the subject property lies. (Go vs. United Coconut Planters Bank, G.R. No. 156187, Nov. 11, 2004)

HSBANK claims that Catalan has no action because under Section 189 of the Negotiable Instruments Law, “a check does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder and until it accepts or certifies it.” However, HSBANK is not being sued on the value of the checks itself but for how it acted in relation to Catalan’s claim for payment despite the repeated directives of the drawer Thompson to recognize the check the latter issued. Catalan may have prayed that she paid the value of the checks but it is axiomatic that what determines the nature of the action, as well as which court has jurisdiction over it, are the allegations of the complaint, irrespective of whether or not the plaintiff is entitles to recover upon all or some of the claims asserted therein. (Hongkong and Shanghai Banking Corp. Ltd. vs. Catalan, G.R. No. 159590,11-1804) CONSOLIDATION OF CASES • In PCGG vs. Sandiganbayan, the Court declared that “the main object of consolidation is to avoid multiplicity of suits, guard against oppression or abuse prevent delay, clear congested dockets, simplify

IN PERSONAM

A proceeding in personam is a proceeding to enforce personal rights and obligations brought against the person and is based on the jurisdiction of the person, although it may involve his right to, or the exercise of ownership of, specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the court. The purpose of a proceeding in personam is to impose through the judgment of a court, some responsibility or liability directly upon the person of the defendant. (Filemona Domagas vs. Vivian Layno Jensen, G.R. No. 158407, January 17, 2005)

Actions quasi in rem deal with the status, ownership or liability of a particular property but which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut off the rights or interests of all possible claimants. (Filemona Domagas vs. Vivian Layno Jensen, G.R. No. 158407, January 17, 2005) PARTIES TO CIVIL ACTIONS INDISPENSABLE PARTIES The presence of all indispensable parties is a condition sine qua non for the exercise of judicial power. It is precisely when an indispensable party is not before the court that the action should be dismissed. Thus, the plaintiff is mandated to implead all the indispensable parties, considering that the absence of one such party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. One who is a party to a case is not bound by any decision of the court; otherwise, he will be deprived of his right to due process. (Pedro Supulveda, Sr. vs. Atty. Pacifico Pelaez, G.R. No. 152195, January 31, 2005)

IN REM ACTIONS • A judicial reconstitution proceeding is one in rem. It denotes a restoration of the instrument which is supposed to have been lost or destroyed in its original form or condition. It denotes a restoration of the instrument which is supposed to have been lost or destroyed in its original form or condition. The purpose of the reconstitution of title or any document is to have the same reproduced, after observing the procedure prescribed by law, in the same form they were when the loss or destruction occurred.

The petition for reconstitution is mandated to prove not only the loss or destruction of the title sought to be reconstituted but also that at the time the said title was lost or destroyed, he was the registered owner thereof. The fact that no opposition is filed by a party or the Republic of the Philippines will not relieve the petitioner of his burden. The Republic of the Philippines is not estopped from assailing the petition if, on the basis of the law and evidence on record, such petition has no merit. (Republic of the Philippines vs. G.R. No. 146846, Aug. 31, 2004). QUASI IN REM ACTIONS

The Rules of Court compels the inclusion of a necessary party when there is an opportunity to include him because failure to include him would mean waiver of the claim against such party. (Rexion Realty Group, Inc. vs. Court of Appeals, et. al., G.R. No. 128412, 03/15/2002)

REAL PARTY IN INTEREST

A proceeding quasi in rem is one brought against persons seeking to subject the property of such persons to the discharge of the claims assailed. In an action quasi in rem, an individual is named as defendant and the purpose of the proceeding is to subject his interests therein to the obligation or loan burdening the property.

Basic it is in the law of procedure that every action must be prosecuted or defended in the name of the real party-in-interest, meaning, “the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit, a procedural rule reechoed in a long line of cases decided by this Court. (Republic of the Philippines vs. Gregorio Aguinoy Sr., G.R. No. 155394, February 17, 2005) “Interest” within the meaning of the rule means material interest, an interest in issue and to be affected by the decree, as

distinguished from mere interest in the question involved, or a mere incidental interest. The interest of the party must also be personal and not one based on a desire to vindicate the constitutional right of some third and unrelated party. Real interest, on the other hand, means a present substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate, or consequential interest. (VSC Commercial Enterprises, Inc., vs. Court of Appeals, et. al., G.R. No. 121159, 12/16/2002)

court may adopt the alternative of allowing the heirs of the deceased to be substituted for the deceased, is no longer true. (San Juan vs. Cruz, G.R. No. 167321, July 31, 2006)

In case the action is brought against the agent, the action must be brought against an agent acting in his own name and for the benefit of an undisclosed principal without joining the principal, except when the contract involves things belonging to the principal. The real party in interest is the party who would be benefited or injured by the judgment or is the party entitled to the avails of the suit. We have held that in such a situation, an attorney-in-fact is not a real party in interest and that there is no law permitting an action to be brought by and against an attorney-in-fact new title, null and void. (Carillo vs. Court of Apeals, G.r. No. 121165, September 26, 2006)

The failure of a counsel to comply with his duty under Section 16 of Rule 3 of the Revised Rules of Court, to inform the court of the death of his client and no substitution of such is effected, will not invalidate the proceedings and the judgment thereon if the action survives the death of such party. (Riviera Filipina, Inc. vs. Court of Appeals et. al., G.R. No. 117355, 04/05/2002) Formal substitution of heirs is not necessary when the heirs themselves voluntarily appeared, shared in the case and presented evidence in defense of the deceased party. This is precisely because the heir’s right to due process was not impaired. In other words, the purpose of the rule on substitution of a deceased party was already achieved. (Brioso vs. Rili-Mariano, G.R. No. 132765, 01/31/2003) Taxpayer’s

PARTIES IN INTEREST; suit

DEATH OF PARTY - Substitution of a party

The second paragraph of the rule is plain and explicit: the heirs may be allowed to be substituted for the deceased without requiring the appointment of an administrator or executor. However, if within the specified period a legal representative fails to appear, the court may order the opposing counsel, within a specified period, to process the appointment of an administrator or executor who shall immediately appear for the estate of the deceased. The pronouncement of this Court in Lawas v. Court of Appeals (relied upon by petitioner), that priority is given to the legal representative of the deceased (the executor or administrator) and that it is only in case of unreasonable delay in the appointment of an executor or administrator, or in cases where the heirs resort to an extrajudicial settlement of the estate that the

When the petition, brought by a citizen, involves the enforcement of constitutional rights, which are matters of transcendental public importance, the petitioner has the requisite locus standi. (Chavez vs. Public Estates Authority, et. al., G.R. No. 133250, 07/09/2002). MISJOINDER AND PARTIES NON-JOINDER OF

party to speak for the rest of the class. The rules require that courts must make sure that the persons intervening should be sufficiently numerous to fully protect the interest of all concerned. (MVRS Publication vs. Islamic Da’wah Council of the Philippines, G.R. No. 135306, 01/28/2003). PLEADINGS KINDS ANSWER (Allegation of fraud is not equivalent to denial under oath) • A reading of respondent’s Answer shows that the respondent did not specifically deny that he signed the loan documents. What he merely stated in his Answer was that the signature appearing at the face of the promissory note seems to be his. Respondent also denied any liability on the promissory note as he allegedly did not receive the amount stated therein, and the loan documents do not express the true intention of the parties. Respondent reiterated these allegations in his “denial under oath,” stating that “the promissory note sued upon, assuming that it exists and bears the genuine signature of herein defendant, the same does not bind him and that it did not truly express the real intention of the parties as stated in the defenses.

The non-joinder of indispensable parties is not a ground for the dismissal of an action. At any stage of a judicial proceeding and/or at such times as are just, parties may be added on the motion of a party or on the initiative of the tribunal concerned. If the plaintiff refuses to implead an indispensable party despite the order of the court, that court may dismiss the complaint for the plaintiff’s failure to comply with the order. The remedy is to implead the non-party claimed to be indispensable. (Pamplona Plantation Co., vs. Rodel Tinghil, G.R. No. 159121, February 3, 2005) Dismissal is not the remedy for nonjoinder of parties. Under the rules, the remedy is to implead the nonparty claimed to be necessary or indispensable in the action. (Vesagas vs. CA, G.R. No. 142924, 12/5/2001) Neither a misjoinder or non-joinder of parties is a ground for the dismissal of an action. Parties may be dropped or added by order of the court, on motion of any party or on the court’s own initiative at any stage of the action. The non-inclusion of a necessary party does not prevent the court from proceeding with the action, and the judgment rendered therein shall be without prejudice to the rights of such parties. (Cabutihan vs. Landcenter Construction and Development Corporation, G.R. No. 146594, 06/10/2002) PARTIES IN A CLASS SUIT

In determining the question of fair and adequate representations of members of a class, the court must consider: (1) whether the interest of the named party is coextensive with the interest of other members of the class; (2) the proportion of those who made the parties as it so bears to the total membership of the class; and (3) any other factor bearing on the ability of the named

Respondent’s denial do not constitute effective denial as contemplated in by law. To deny the genuineness and due execution of an actionable document the defendant must declare under oath that he did not sign the document or that it is otherwise false or fabricated. Neither does the statement of the answer to the effect that the instrument was procured by fraudulent representation raised any issue as to its genuineness or due execution. On the contrary such plea is an admission of the genuineness and due execution thereof, since it seeks to avoid the instrument upon the ground not affecting either. (Permanent Savings and Loan Bank vs. Velarde, G.R. No. 140608, 9-23-04) COUNTERCLAIM • A compulsory counterclaim is one which, being cognizable by the

regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. In Valencia vs. Court of Appeals, the Court capsulized the criteria or tests that may be used in determining whether a counterclaim is compulsory or permissive, summarized as follows: (1) Are the issues of fact and law raised by the claim and counterclaim largely the same? (2) Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule? (3) Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim? (4) Is there any logical relation between the claim and the counterclaim? Another test, applied on the more recent case of Quintanilla vs. Court of Appeals, is the “compelling test of compulsoriness” which requires “a logical relationship between the claim and counterclaim, that is, where conducting separate trials of the respective claims the parties would entail a substantial duplication of effort and time by the parties and the court”. There is no need for the party to pay docket fees for the compulsory counterclaim. On the other hand, in order for the trial court to acquire jurisdiction over the permissive counterclaim, the party is bound to pay the prescribed docket fees. (Alday vs. FGU Insurance Corporation, G.R. No. 138822, 01/23/2001) CROSS-CLAIM • Under Section 7 of Rule 6 of the 1988 Rules of Court, a cross-claim is proper only when: (1) it arises out of the subject matter of the complaint; (2) it is filed against a co-party; and (3) the crossclaimant stands to be prejudiced by the filing of the action against him.

other, the independent interest should be pursued in another proceeding. (Londres, et. al. vs. Court of Appeals, et. al., G.R. No. 136427, 12/17/2002) FORMAL REQUIREMENTS CERTIFICATION SHOPPING AGAINST FORUM

Forum shopping consists of filing multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to obtain a favorable judgment. (Ricardo S. Silverio Jr. vs. Filipino Business Consultants, R.R. No. 143312, August 12, 2005) There is forum shopping when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion, other than by appeal or certiorari in another. There can also be forum shopping when a party institutes two or more suits in different courts, either simultaneously or successively, in order to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same reliefs on the supposition that one or the other court would make a favorable disposition or increase a party’s chance of obtaining a favorable decision or action. It is an act of malpractice because it trifles with the courts, abuses their processes, degrades the administration of justice and adds to the already congested court dockets. (Teresita Villaluz vs. Rolando Ligon, G.R. No. 143721, August 31, 2005) To determine whether a party violated the rule against forum shopping, the most important question to ask is whether the elements of litis pendentia are present or whether a final judgment in once case will result to res judicata in another. Otherwise stated, to determine forum shopping the test is whether in the two or more cases pending, there is identity of parties, rights or causes of action, and reliefs sought. (Huibonhoa vs. Concepcion, G.R. No. 153785, August 3, 2006) The rules on forum shopping should not be literally interpreted. Even assuming that separate

The purpose of a cross-claim is to avoid multiplicity of suits. Multiplicity of suits should be avoided if the filing of a separate and independent action to recover a claim would entail proving exactly the same claim in an existing action. However, when the causes of action are distinct and separate from each

actions have been filed by two different parties involving essentially the same subject matter, no forum shopping is committed if the parties have not resorted to multiple judicial remedies. (R.P. vs. Express Telecommunications Co., Inc., et. al., G.R. No. 147096, 01/15/2002)

When there is no identity of parties and causes of action between the cases as to give rise to res judicata or litis pendentia, the allegation of forum shopping cannot prosper. (MR Holdings, Ltd. Vs. Bajar, et. al., G.R. No. 138104, 04/11/2002)

where a final judgment in one case will amount to res judicata in another. Hence, the following requisites concur: (1) identity of parties, or at least such parties as represent the same interests in both actions; (2) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (3) the identity of the two preceding particulars is such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration. (T’boli AgroIndustrial Development, Inc. (TADI) vs. Solilapsi, A.C. No. 4766, 12/27/2002). The certification of non-forum shopping is a mandatory part of an initiatory pleading and its omission may be excused only upon manifest equitable grounds proving substantial compliance therewith. (Spouses Ong vs. Court of Appeals, et. al., G.R. NO. 144581, 07/05/2002)

Forum shopping applies only to judicial cases or proceedings, not to disbarment proceedings. (Lucente, et. al. vs. Evangelista, Jr., A.C. No. 5957, 02/04/2003).

A disbarment case may proceed independently of the civil action for collection, without running afoul of the prohibition against forum shopping. Moreover, the elements of forum shopping are conspicuously absent. Between these two cases, there is no identity of parties, as the complainant is in no case a party to the administrative proceeding. Obviously, there is neither identity of rights asserted nor reliefs prayed for. Lastly, the judgment in the disbarment proceeding would not bar the collection case. (Fajardo vs. Bugaring, A.C. No. 5113, 10- 7-04) The essence of forum shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. In several cases, the Court has held that forum shopping exist when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion in another, or when he institutes two or more actions or proceedings grounded on the same cause to increase the chances of obtaining a favorable decision. An important factor in determining the existence of forum shopping is the vexation caused to the courts and parties-litigants by the filing of similar cases to claim substantially the reliefs.

A compulsory counterclaim is not a complaint or initiatory pleading that requires a certification against forum shopping. It bears stressing that the Rule distinctly provides that the required certification against forum shopping is intended to cover an “initiatory pleading,” meaning an “incipient application of a party asserting a claim for relief.” A compulsory counterclaim is not a complaint or initiatory pleading that requires a certification against forum shopping. Also, an Answer with Counterclaim filed merely to counter petitioners’ complaint that initiates the civil action is a responsive, not an initiatory pleading. In other words, the rule requiring such certification does not contemplate a defendant’s claim for relief that is derived only from, or is necessarily connected with, the main action or complaint. (Spouses Carpio vs. Rural Bank of Sto. Tomas Batangas, G.R. 153171, May 4, 2006)

Forum shopping exists where the elements of litis pendentia are present or

The certification against forum shopping must be by the plaintiff or any of the principal parties and not by the attorney. It is mandatory that the certification be executed by the petitioner himself, and not by the attorney. A certification against forum shopping executed by the counsel is cause for dismissal of the case. (Republic vs. Carmel Development, Inc., G.R. No. 142572, 02/20/2002)

In Sy Chin vs. CA, the Court held that the procedural lapse of a party’s counsel in signing the certificate of non-forum shopping may be overlooked if the interests of substantial justice would thereby be served. Further, in Damaso vs. NLRC, we noted that the certificate of non-forum shopping was executed by the petitioner’s counsel, but nevertheless resolved the case on its merits for the reason that “technicality should not be allowed to stand in the way of equitably and completely resolving the equity and obligations of the parties to a labor case.”

The service of the summons is not only required to give the court jurisdiction over the person of the defendant, but also to afford the latter an opportunity to be heard on the claim made against him. Thus, compliance with the rules regarding the service of summons is as much as an issue of due process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of his defense. It is elementary that before a person can be deprived of his property, he should first be informed of the claim against him and the theory on which such claim is premised. (Samartino vs. Raon, et. al., G.R. No. 131482, 07/03/2002)

The rules on forum shopping, which were precisely designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective which is the goal of all rules of procedure – that is, to achieve substantial justice as expeditiously as possible. (Great Southern Maritime Services Corp. vs. Jennifer Anne B. Acuña, G.R. no. 140189, February 28, 2005) SUMMONS

Summons belatedly served does not confer a retroactive acquisition of jurisdiction over the person of the defendant. The law does not allow for retroactivity of a belated service. Thus, where the writ of preliminary attachment was served upon the defendant on October 28, 1988 while the summons was served only on January 26, 1989, the subsequent service does not validate the enforcement of the writ. (Mangila vs. CA, G.R. No. 125027, 8-12-2002,)

SERVICE BY REGISTERED MAIL • If Service is made by registered mail, proof shall be made by the affidavit of the person mailing showing that it was mailed by depositing the copy in the post office in a sealed envelop, plainly addressed to the party or his counsel at his office, with postage fully pre-paid, and with the instruction to the post-master to return the mail to the sender after ten (10) days if undelivered. (Sec. 13, 7, Rule 13) The proof also requires the registry receipt issued by the mailing office.

The preferential rule regarding service of summons found in the Rules of Court applies suppletorily to the Revised Rules of the House of Representatives Electoral Tribunal. Hence, as regards the hierarchy in the service of summons, there ought to be no rational basis for distinguishing between regular court cases and election protest cases pending before the HRET. (Sandoval II vs. House of Representatives Electoral Tribunal, et. al., G.R. No. 149380, 07/03/2002)

In other words, if service is by registered mail, proof of service consists of the affidavit of the person mailing and the registry receipt, both of which must be appended to the motion. Absent one or the other or worse both, there is no proof of service. (Cruz vs. CA, G.R. No. 123340, 8-29-2002) SERVICE IN PERSON • In actions in personam, summons on the defendant must be served

by handling a copy thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him. If an effort to serve the summons personally to defendant is impossible, service may be effected by leaving copies of the summons at the defendant’s dwelling house or residence with some person of suitable age and discretion residing therein, or by leaving the copies at the defendant’s office or regular place of business with some competent person in charge thereof. Otherwise stated, service of summons upon the defendant shall be by personal service first and only when the defendant cannot be promptly served in person will substituted service be availed of. The impossibility of personal service justifying availment of substituted service should be explained in the proof of service and why efforts exerted towards personal service failed. The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Office’s Return, otherwise, the substituted service cannot be upheld. It is only under exceptional terms that the circumstances warranting substituted service of summons may be proved by evidence aliunde. It bears stressing that since service of summons especially for action in personam, is essential for the acquisition of jurisdiction over the person of the defendant, the resort to a substituted service must be duly justified. Failure to do so would invalidate all subsequent proceeding on jurisdictional grounds. (Samartino vs. Roan, et. al., G.R. No. 131482, 07/03/2002)

personally would make prompt service impossible, service maybe completed by substituted service, i.e., by leaving copies of the summons at his dwelling house or residence with some person of suitable age and discretion then residing therein or by leaving the copies at his office or regular place of business with some competent person in charge thereof. Substituted service derogates the regular method of personal service. It is an extraordinary method since it seeks to bind the respondents or the defendant to the consequences of a suit even though notice of such action is served not upon him but upon another whom the law could only presume would notify of the pending proceedings. As safeguard measures for this drastic manner of bringing in a person to answer for a claim. It is a required that statutory restrictions for substituted service must be strictly, faithfully and fully observed. In our jurisdiction, for substituted service of summons to be valid, it is necessary first to establish the following circumstances: (1) impossibility of service of summons within a reasonable time; (2) efforts exerted to locate the petitioners; and (3) service upon a person of sufficient age and discretion residing therein or some competent person in charge of his office or regular place of business. It is also essential that the pertinent facts providing these circumstances be stated in the proof of service of officer’s return itself and only under exceptional terms may they be proved by evidence aliunde. Failure to comply with this rule renders absolutely void the substituted service along with the proceedings taken thereafter for lack of jurisdiction over the person of the defendant or the respondent. (Sandoval II vs. House of Representatives Electoral Tribunal, et. al., G.R. No. 149380, 07/03/2002)

Where personal service of summons could not be effected on a party, substituted service could be availed of. Where the defendant resident is abroad or whose whereabouts are unknown, summons by publication may be effected under Sec. 16 and Sec. 14 of Rule 14. (Mangila vs. CA, G.R. No. 125027, 8-12-2002) It is well-established that summons upon a respondent or a defendant must be served by handling a copy thereof to him in person or, if he refuses to receive it, by tendering it to him. Personal service of summons most effectively ensures that the notice desired under the constitutional requirements of due process is accomplished. If, however, efforts to find him

The trial courts, clerks of court and process servers must ensure that summonses and other court processes are properly served in order to spare them, the litigants and the government from waste of efforts, time and resources resulting from the improper service of summonses. It is their duty to see to it that these are validly served in order to avoid needless delays in the outcomes of cases. (Bank of the Philippine Island vs. Spouses Evangelista, et. al., G.R. No. 146553, 11/27/2002)

The absence in the sheriff’s return of a statement about the impossibility of personal service does not conclusively prove that the substituted service is invalid. Besides, the sheriff’s neglect in making such a disclosure should not unduly prejudice the plaintiff if what was undisclosed was in fact done. Even if the defect is apparent on the face of the returns, evidence that would prove proper compliance with the Rules on substituted service may be presented. (Bank of the Philippine Islands vs. Spouses Evangelista, et. al., G.R. No. 146553, 11/27/2002)

trial court cannot render a valid judgment because it never acquired jurisdiction over her person since she was never served with summons. Is the service of summons valid? Ruling: The service of summons by publication is valid. Under Sec. 15 of Rule 14, extraterritorial service of summons by publication may be effected when the action affects the personal status of the plaintiff as in action for declaration of the nullity of marriage. The contention that the court had never acquired jurisdiction over the person of the non-resident spouse is erroneous. Such kind of jurisdiction applies only in an action in personam. When the case is an action in rem or quasi in rem, the court does not need jurisdiction over the person of the defendant in order to validly try the case. It only needs jurisdiction over the res like in an action for declaration of nullity of marriage. In this kind of action, jurisdiction over the person of the nonresident defendant is not essential. (Romualdez-Licaros vs. Licaros, G.R. No. 150656, 4- 29-03) PROCEEDINGS AFTER SERVICE OF SUMMONS MOTIONS MOTION ATTACKING A JUDGMENT OR PROCEEDING – OMNIBUS MOTION

SUBSTITUTED SERVICE

The impossibility of personal service, justifying substituted service should be explained in the proof of service and why efforts toward personal service failed. The pertinent facts and circumstances attendant to the service of service or Officer’s Return; Otherwise the substituted service cannot be upheld. (Samartino vs. Raon, 383 SCRA 664, 670, 2002). In the absence of even the barest compliance with the procedure for substituted service of summons outlined in the Rules of Court, the presumption of regularity in the performance of public function does not apply.

Resort to substituted service without first attempting to personally serve the process violates the rule granting absolute preference to personal service of summons and, only secondarily, when the defendant cannot be promptly served in person and after compliance with stringent formal and substantive requirements, permitting resorts to substituted service. (Sandoval II vs. House of Representatives Electoral Tribunal, et. al., G.R. No. 149380, 07/03/2002) EXTRATERRITORIAL SERVICE • Facts: The husband filed for the declaration of the nullity of his marriage based on the psychological incapacity of his wife. As the wife was at the time already a resident of the United States, summons by publication was effected by leave of court. After hearing, the marriage was declared a nullity. The wife insists that the

The Rule of Court requires that all available objections to a judgment or proceeding must be set up in an Omnibus Motion assailing it, otherwise, they are deemed waived. The Omnibus Motion Rule requires the movant to raise all the available exceptions in the single opportunity to avoid multiple placements objections. However, to apply that statutory norm, the objections must have been available to the party at the time the Motion was filed. (PH Credit Corporation vs. Court of Appeals, et. al., G.R. No. 109648, 11/22/2001) Sec. 5, Rule 15 of the Rules uses the mandatory term “must” in fixing the period within which the motion shall be scheduled for hearing, so that a motion that fails to comply with this mandatory provision is pro forma and does not merit the attention and consideration of the court. In the case at bar, Garcia does not even refute the fact that the Motion to

Dismiss was scheduled for hearing on 3 December 2004, or three (3) days beyond the ten (10)-day period in Sec. 5, Rule 15. Thus, the motion is a mere scrap of paper which does not toll the running of the prescriptive period to file an answer and is not entitled to judicial cognizance. The Motion to Dismiss remains defective and of no legal effect despite the disposition by the Sandiganbayan of the issue raised in the motion. The subsequent action of the court on a defective motion does not cure the flaw, for a motion with a fatally defective notice is a useless scrap of paper, and the court has no authority to act thereon. (Garcia vs. Sandiganbayan, G.R. No. 167103, August 31, 2006) MOTION TO DISMISS Under Section 1 of Rule 16 of the Revised Rules of Civil Procedure, a motion to dismiss shall be filed within the time for but before filing the answer to the complaint or pleading asserting a claim. (Kho vs. Court of Appeals, et. al., G.R. No. 115758, 03/19/2002) As a general rule, a complaint cannot be dismissed based on a ground not relied upon in a motion to dismiss and, therefore, not offering the plaintiff any chance to argue the point. Section 2 of Rule 16 of the Rules of Court requires that during the hearing of a motion to dismiss, the parties shall submit to the court their arguments on questions of law and their evidence on questions of fact, except those not available at that time. (Spouses Benito vs. Saquitan-Ruiz, G.R. No. 149906, 12/26/2002) Section 2 and 3 of Rule 16 (Motion to Dismiss) of the 1997 rules allow the presentation of evidence during the hearing on the motion to dismiss. These sections provide that at the hearing of the motion, the parties shall submit all arguments and evidence then available. If the case goes to trial, the evidence presented shall automatically constitute part of the evidence of the party who presented the same. Thus, it is not necessary to attach to the motion to dismiss the evidence required to establish the movant’s cause and failure to do so is not fatal to this case. (Republic vs. Carmel Development, Inc., G.R. No. 142572, 02/20/2002)

An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case, as it leaves something to be done by the court before the case is finally decided on the merits. As such, the general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari which is a remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be the subject of an appeal unless and until a final judgment or order is rendered. In order to justify the grant of the extraordinary remedy of certiorari, the denial of the motion to dismiss must have been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. (Douglas Lu Ym vs. Gertrudes Nabua, G.R. No. 161309, February 23, 2005)

LITIS PENDENTIA When the elements of litis pendentia exist, the action filed later should be abated to avoid multiplicity of suits. This is based on the maxim Qui prior est tempore, potior est jure (He who is before in time is the better in right). (Pascports Phils., Inc. vs. Niccolo Sports, Inc., G.R. No. 141602, 11/22/2001)

Litis pendentia as a ground for dismissal of an action refers to that situation wherein another action is pending between the same parties for the same cause of action and the second action becomes unnecessary and vexatious. (Times Transportation Co. vs. Santos Sotelo, G.R. No. 163786, February 16, 2005)

The relevant factors that a court must consider when it has to determine which case should be dismissed given the pendency of two actions are as follows: (1) the date of filing, with preference generally given to the first action filed to be retained; (2) whether the action filed to be dismissed was filed merely to pre-empt the latter action or to anticipate its filing and lay the basis for its dismissal; and (3) whether the action is the appropriate vehicle for litigating the issues between the parties. (Panganiban vs. Pilipinas Shell Petroleum Corporation, G.R. No. 131471, 01/22/2003)

One of two actions will be dismissed on ground of litis pendentia if the following requisites concur: (1) identity of parties, or at least such as representing the same interest in both actions; (2) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (3) the identity in the two (2) cases should be such that judgment in one who would amount to re judicata in the other. (Pascports Phils., Inc. vs. Niccolo Sports, Inc., G.R. No. 141602, 11/22/2001)

absolute bar to the second action. Otherwise put, the judgment or decree of the court of competent jurisdiction on the merits concludes the litigation between the parties, as well as their privies, and constitutes a bar to new action or suit involving the same cause of action between the same or any other tribunal. But where there is identity of parties in the first and second cases, but no identity of causes of action, the first judgment is conclusive only as to those matters actually and directly controverted and determined and not as to matters merely involved therein. This is the concept of res judicata known as “conclusiveness of judgment”. Stated differently, any right, fact or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which judgment is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and their privies whether or not the claim, demand, purpose or subject matter of the two action is the same. (Oropeza Marketing Corporation, et. al. vs. Allied Banking Corporation, G.R. No. 129788, 12/03/2002)

The requirement that a motion to dismiss should be filed within the time for filing the answer is not absolute. Even after an answer has been filed, a defendant can still file a motion to dismiss on the following grounds: (1) lack of jurisdiction; (2) litis pendentia; (3) lack of cause of action; and (4) discovery during trial of evidence that would constitute a ground for dismissal. Litis pendentia is also one of the grounds that authorize a court to dismiss a case motu propio. (Panganiban vs. Pilipinas Shell Petroleum Corporation, G.R. No. 131471, 01/22/2003)

RES JUDICATA • Res judicata literally means “a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment”. Res judicata lays the rule that an existing final judgment or decree rendered on the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction on the points and matters in issue in the first suit. The principle of res judicata has two aspects, namely: (1) bar by prior judgment as enunciated in Section 49(b) or Rule 39 of the 1997 Rules of Civil Procedure; and (2) “conclusiveness of judgment” which is contained in Section 47(c) of Rule 39.

The principle of res judicata has two aspects: (1) as a bar to the prosecution of a subsequent action based on the same claim or cause of action; and (2) as preclusion to the relitigation of particular issues or facts in another action between the same parties on a different demand or cause of action. (Amante San Pedro vs. Marciana Binalay, G.R. No. 126207, August 25, 2005) For res judicata to serve as an absolute bar to a subsequent action, the following requisites must concur: (1) there must be a final judgment or order; (2) the court rendering it must have jurisdiction over the subject matter and the parties; (3) it must be a judgment or order on the merits; and (4) there must be between the two cases identity of parties, subject matter and causes of action. (Amante San Pedro vs. Marciana Binalay, G.R. No. 126207, August 25, 2005) Res judicata does not set in where the court is without jurisdiction over the subject or person, and therefore, the judgment is a nullity such as the judgment by default

There is “bar by prior judgment” when, as between the first case where the judgment was rendered and the second case that is sought to be barred, there is identity of the parties, subject matter and cause of action. In this instance, the judgment in the first case constitutes an

and the order of restitution merely recognized the nullity of the judgment by default. The orders did not adjudicated on the merits of the case. (Ricardo S. Silverio Jr. vs. Filipino Business Consultants, R.R. No. 143312, August 12, 2005) Once an issue has been adjudicated in a valid final judgment of a competent court, it can no longer be controverted anew and should be finally laid to rest. However, the court is not precluded from reexamining its own ruling and rectifying errors of judgment if blind and stubborn adherence to res judicata would involve the sacrifice of justice to technicality. (De Leon, et. al. vs. Court of Appeals, et. al., G.R. No. 127182, 12/05/2001)

Inc., et. al., 01/23/2002)

G.R.

No.

101783,

For purposes of res judicata, only a substantial identity of parties is required and not absolute identity. There is substantial identity of parties when there is community of interest between a party in the first case and a party in the second case even if the latter was not impleaded in the first place. (Sps. Serrano, et. al. vs. Court of Appeals, et. al., G.R. No. 122930, 02/06/2002)

RES JUDICATA vs. LAW OF THE CASE • Law of the case has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule or decisions between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so as long as the facts on which such decisions was predicated continue to be the facts of the case before the court.

When there is identity of the cause or causes of action, there is necessarily identity for subject matter. But the converse is not true, for different causes of action may exist regarding the same subject matter, in which case, the conclusiveness of judgment shall be only with regard to the question directly and actually put in issue and decided in the first case. (Oropeza Marketing Corporation, et. al. vs. Allied Banking Corporation, G.R. No. 129788, 12/03/2002) Res judicata is founded on the principle that parties ought not to be permitted to litigate the same issue more than once. Hence, when a right of fact has been judicially tried and established by a court of competent jurisdiction, or an opportunity for such trial has been given, the judgment of the court— so long as it remains unreversed--is conclusive upon the parties and those in privity with them in law or estate. (Oropeza Marketing Corporation, et. al. vs. Allied Banking Corporation, G.R. No. 129788, 12/03/2002) A party by bringing forward, in a second case, additional parties cannot escape the effects of the principle of res judicata when the facts remain the same. Res judicata is not defeated by a minor difference of parties, as it does not require absolute but only substantial identity of parties. (Manila Electric Company vs. Philippine Consumers Foundation,

As a general rule, a decision on a prior appeal of the same case is held to be the law of the case whether that question is right or wrong, the remedy of the party deeming himself aggrieved is to seek a rehearing. The rule is necessary as a matter of policy to end litigation. Otherwise, there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions, or speculate of chances from changes in its members. The “ law of the case” is totally different from the concept of res judicata. Law of the case does not have the finality of the doctrine of res judicata and applies only to the one case, whereas res judicata forecloses parties or privies in one case by what has been done in another case. (Padillo vs. Court of Appeals, et. al., G.R. No. 119707, 11/29/2001) MOTION TO DISMISS; lack of cause of action

When the motion to dismiss is based on lack of cause of action, only the statements in the complaint may be properly considered, and the court cannot take cognizance of external facts or hold preliminary hearings to

ascertain their existence. (Government Service Insurance System vs. Court of Appeals, et. al., G.R. No. 128118, 02/15/2002) DISMISSAL OF ACTIONS • The motu propio dismissal of a case was traditionally limited to instances when the court clearly had no jurisdiction over the subject matter and when the plaintiff did not appear during trial, failed to prosecute his action for an unreasonable length of time or neglected to comply with the rules or with any order of the court. Outside of these instances, any motu propio dismissal would amount to a violation of the right of the plaintiff to be heard.

Except for qualifying and expanding Section 2 of Rule 9 and Section 3 of Rule 17 of the Revised Rules of Court, the amendatory 1997 Rules of Civil Procedure brought about no radical change. Under the new rules, a court may motu propio dismiss a claim when it appears from the pleadings or evidence on record that it has no jurisdiction over the subject matter; when there is another cause of action pending between the same parties for the same cause, or where the actions is barred by a prior judgment or by statute of limitations. Improper venue not being included in the enumeration, it should follow that motu propio dismissal on said ground would still not be allowed under the 1997 Rules of Civil Procedure Section 6 of Rule further provides that if not motion to dismiss has been filed, any of the grounds for dismissal provided under the rules, including improper venue, may be pleaded as an affirmative defense in the answer and, upon the discretion of the court, a preliminary hearing may be made thereon as if a motion to dismiss has been filed. (Gumabon, et. al. vs. Larin, G.R. No. 142523, 11/27/2002) DISMISSAL OF ACTIONS BASED ON DECLARATION OF THE PLAINTIFF AS NON-SUITED

In Bank of the Philippine Islands vs. Court of Appeals, the Court cautioned the courts against the improvident dismissal of cases based on a declaration of the plaintiff as nonsuited. While a court can dismiss a case on the ground of nonposequitur, the real test of such power is whether, under the circumstances, plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. In the absence of pattern or a scheme to delay the disposition of the case or a wanton failure to observe the mandatory requirement of the rules on the part of the plaintiff, courts should decide to dispense rather than wield their authority to dismiss. (Thermphil, Inc. vs. Court of Appeals, et. al., G.R. No. 129234, 11/20/2001) Indeed, the dismissal of a case, whether for failure to appear during trial or prosecute an action for an unreasonable length of time, rests on the sound discretion of the trial court. But this discretion must not be abused, nay gravely abused, and must be exercised soundly. Deferment of proceedings may be tolerated so that cases may be adjudged only after a full and free presentation of all the evidence by both parties. The propriety of dismissing the case must be determined by the circumstances surrounding each particular case. There must be sufficient reason to justify the dismissal of a complaint. (Thermphil, Inc. vs. Court of Appeals, et. al., G.R. No. 129234, 11/20/2001) LACHES Laches may be defined as the failure or neglect for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right should be barred from asserting the same, because to allow him to do so would be unjust to the person against whom such right is sought to be enforced. (Westmont Bank vs. Ong, G.R. No. 132560, 01/30/2002) • Laches is the failure or neglect, for an unreasonable length of time, to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within

a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. There is no absolute rule as to what constitutes laches or staleness of demand. Each case is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court and, being an equitable doctrine, its application is controlled by equitable considerations. It cannot be used to defeat justice or perpetuate fraud and injustice. Courts will not be guided or bound strictly by the statue of limitations or the doctrine of laches when to do so, manifest wrong or injustice would result. (Far East Bank and Trust Company vs. Querimit, G.R. No. 148582, 01/16/2002) ESTOPPEL While the participation in all stages of a case before the trial court, including invocation of its authority in asking for affirmative relief, effectively bars a party by estoppel from challenging the court’s jurisdiction, the Court noted that estoppel had become an equitable defense that is both substantive and remedial and its successful invocation can bar a right and not merely its equitable enforcement. Hence, estoppel ought to be applied with caution. For estoppel to apply, the action giving rise thereto must be equivocal and intentional because, if misapplied, estoppel may become a tool of injustice. (Duere vs. Court of Appeals,et. al., G.R. No. 131282, 01/01/2002) • Section 3 of Rule 47 expressly provides that a petition for annulment of judgment based on lack of jurisdiction must be filed before it is barred by laches or estoppel. Hence, it has been held that while jurisdiction over the subject matter of a case may be raised at any time of the proceedings, this rule presupposes that laches or estoppel has not supervened.

Court when stages of Philippines, al., G.R. No.

it failed to do so in the early the proceedings. (Dunsol Inc. vs. Court of Appeals, et. 121106, 02/20/2002)

The essential elements of estoppel are: (1) conduct of a party amounting to false representation or concealment of material facts or at least calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intent, or at last expectation, that this conduct shall be acted upon by, or at least influence, the other party; and (3) knowledge, actual or constructive, of the real facts. (Lim vs. (Queensland Tokyo Commodities, Inc., G.R. No. 136031, 01/04/2002) PRESCRIPTION An action for reconveyance based on an implied or constructive trust prescribes within ten years from the time of its creation or upon the alleged fraudulent registration of the property. Since registration of real property is considered a constructive notice to all persons, then the tenyear prescriptive period is reckoned from the time of such registering, filing or entering. (Vda. De Retrueto, et. al. vs. Barz, et. al., G.R. No. 148180, 12/19/2001) • Article 1144(3) of the Civil Code provides that an action upon a judgment must be brought within ten years from the time the right of action accrues.

This Court has time and again frowned upon the undesirable practice of a party submitting his case for decision and then accepting the judgment only if favorable, and attacking it for lack of jurisdiction when adverse. Here, the principle of estoppel or barred from raising the question of jurisdiction for the first time in a petition before the Supreme

On the other hand, Section 6 of Rule 39, Revised Rules of Court states: “A final and executory judgment or order may be executed on motion within five (5) years from 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 motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations.” The rule is that the court could issue a writ of execution by motion within five (5) years from finality of the decision. A writ of execution issued after the expiration of that period is null and void. Here is a need for the interested party to file an independent action for revival of judgment. The judgment may

be enforced after the lapse of this period and before the same is barred by the statute of limitations, by instituting an ordinary civil action. The reason is that after the lapse of the five-year period, the judgment is reduced to a mere right of action, by the institution of a complaint in the regular form. Such action must be filed within ten (10) years from the date the judgment became final. The decision having become stale, any action to enforce or revive it has prescribed. (Barrera, et. al. vs. Court of Appeals, et. al., G.R. No. 123925, 12/14/2001)

PROCEEDINGS COMMON TO ALL PARTIES MODES OF DISCOVERY; Request for Admission Rule 26 of the Revised Rules of Court seeks to obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admissions to enable a party to discover the evidence of the adverse side thereby facilitating an amicable settlement of the case or expediting the trial of the same. However, if the request for admission only serves to delay the proceeding by abetting redundancy in the pleadings, the intended purpose for the rule will certainly be defeated. (Duque vs, CA, G.R. No. 125383, 07/02/2002) When Rule 26 of the Rule of Court states that a party shall respond to the request for admission, it should not be strictly construed to mean that a party may not engage the services of counsel to make the response in his behalf. (Lanada vs. CA, et. al., G.R. No. 1023920, 02/01/2002). The application of the rules on modes of discovery rest upon the sound discretion of the court. In the same vein, the determination of the sanction to be imposed upon a party who fails to comply with the modes of discovery rests on the same sound judicial discretion. It is the duty of the courts to examine thoroughly the circumstances of each case and to determine the applicability of the modes of discovery, bearing always in mind the aim to attain an expeditious administration of justice. It need not be emphasized that upon the courts’ shoulders likewise rest the burden of determining whether the response of the requested party is a specific denial of the matters requested for admission. (Lanada vs. CA, et. al., G.R. No. 102390, 02/01/2002). SUMMARY JUDGMENT

A summary judgment is one granted by the court upon motion by a party for an expeditious settlement of a case, there appearing from the pleadings, depositions, admissions and affidavits that there are no important questions or issues of fact involved, and that therefore the moving party is entitled to judgment as a mater of law. (Jader-Manalo vs. Camasia, et. al., G.R. No. 147978, 01/23/2002) The test for propriety of a motion for summary judgment is “whether the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify the finding that, as a matter of law, there is no defense to the action or claim which is clearly meritorious”. (Herbosa vs. Court of Appeals, G.R. No. 119086, 01/21/2002). A court may grant a summary judgment to settle expeditiously a case if, on motion either party, there appears from the pleadings, depositions, admissions, and affidavits that that no important issues of the fact are involved, except the amount of damages. In such event, the moving party is entitled to a judgment as a matter of law. In a motion for summary judgment, the crucial question is: “Are the issues raised in the pleadings genuine, sham or fictitious, as shown by affidavits, depositions or admissions accompanying the motion?” (Manufacturers Hanover Trust Co. vs. Guerrero, G.R. No. 136804, 02/19/2003) PRE-TRIAL •

JUDGMENT

An order or a judgment is deemed final when it finally disposes of a pending action, so that nothing more can be done with it in the trial court. In other words, the order or judgment ends the litigation in the lower court. Au contaire, an interlocutory order does not dispose of the case completely, but leaves something to be done as regards the merits of the latter. (Madrigal Transport, Inc., vs. Lapanday Holdings Corp., G.R. No. 156067, Aug. 11, 2004) The rule is that: (1) a judgment in rem is binding upon the whole world, such as a judgment in a land registration case or probate of a will; and (2) a judgment in personam is binding upon the parties and their successors in interest but not upon strangers.

A judgment directing a party to deliver possession of a property to another is in personam. It is binding only against the parties and their successors in iterest by title subsequent to the commencement of the action. Suits to quiet title are not technically suits in rem, nor are they, strictly speaking, in personam, but being against the person in respect of the res, the proceedings are characterized as quasi in rem. The judgment in such proceedings is conclusive only between the parties. The Philippine Constitution no less, mandates that no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. This vital requirement is not only demanded from the courts. Quasi-judicial bodies are similarly required to give basis for all their decisions, rulings or judgments pursuant to the Administrative Code whose roots may also be traced to the Constitutional mandate. A decision need not be a complete recital of the evidence presented. So long as the factual and legal basis are clearly and distinctly set forth supporting the conclusions drawn therefrom, the decision arrived at is valid. Nonetheless, in order to effectively buttress the judgment arrived at, it is imperative that a decision should not be simply limited to the dispositive portion but must state the nature of the case, summarize the facts with reference to the record, and contain a statement of

The conduct of a pre-trial in civil actions have been mandatory as early as January 1, 1964, upon the effectivity of the Revised Rules of Court. Pre-trial is a procedural device intended to clarify and limit the basic issues between the parties. It thus paves the way for a less cluttered trial and resolution of the case. Its main objective is to simplify, abbreviate and expedite the trial, or totally dispense with it. Presiding therefrom, it is a basic legal precept that the parties are bound to honor the stipulations they made during the pre-trial. (Interlining Corporation, et. al. vs. Philippine Trust Company, G.R. No. 144190, 03/06/2002)

the applicable laws and jurisprudence and the tribunal’s assessment and conclusions on the case. This practice would better enable a court to make an appropriate consideration of whether the dispositive portion of the judgment sought to be enforced is consistent with the finding of facts and conclusions of law made by the tribunal that rendered the decision. Compliance with this requirement will sufficiently apprise the parties of the various issues involved but more importantly will guide the court in assessing whether the conclusion arrived at is consistent with the facts and the law. (People vs. Baring, Jr., G.R. No. 137933, 01/28/2002) A judgment promulgated after the judge who signed the decision has ceased to hold office is not valid and binding. In like manner, a decision penned by a judge during his incumbency cannot be validly promulgated after this retirement. When a judge retired all his authority to decide any case, i.e., to write, sign and promulgate the decision thereon also “retired” with him. In other words, he had lost entirely his power and authority to act on all cases assigned to him prior to his retirement. (Nazareno vs. Court of Appeals, et. al., G.R. No. 111610, 02/27/2002)

A void judgment is no judgment at all. It cannot be the source of any right nor of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ or execution based on it is void. (Nazareno vs. Court of Appeals, et. al., G.R. No. 111610, 02/27/2002)

The fact alone that the judge who penned the decision was not the same judge who heard the case and received the evidence therein would not render the findings in the said decision erroneous and unreliable. While the conduct and demeanor of witnesses may sway a trial court judge in deciding a case, it is not, and should not be, his only consideration. Even more vital for the trial court judge’s decision are the contents and substance of the witnesses’ testimonies, as borne out by the TSNs, as well as the object and documentary evidence submitted and made part of the records of the case. (Citibank, N.A. vs. Sabeniano, G.R. No. 156132,October 12, 2006)

The Constitution provides that a case shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the court itself. In Administrative Circular No. 28, dated July 3, 1989, the Supreme Court provided that a case is considered submitted for decision upon the admission of the evidence of the parties at the termination of the trial. The ninety (90) days period of deciding the case shall commence to run from submission of the case the court requires or allows its filing, the case shall be considered submitted for decision upon the filing of the last memorandum or the expiration of the period to do so, whichever is earlier. Lack of transcript of stenographic notes shall not be a valid reason to interrupt or suspend the period for deciding the case unless the case was previously heard by another judge not the deciding judge in which case the latter shall have the full period of ninety (90) days from the completion of the transcripts within which to decide the same. (Re: Problem of Delays in Cases Before the Sandiganbayan A.M. No. 00-805-SC, 11/28/2001).

IMMUTABILITY OF JUDGMENT

Litigation should end and terminate sometime and somewhere. It is essential to an effective and efficient administration of justice that, once a judgment has become final, the winning party should not be deprived of the fruits of the verdict. Courts must therefore guard against any scheme calculated to bring about that undesirable result. Thus, it is only proper for this Court to now write finis to this decade-old controversy. (REPUBLIC vs. “G” HOLDINGS, G.R.141241, NOVEMBER 22, 2005)

MODIFICATION OF JUDGMENT • When a judgment has become final and executory, it cannot be amended or modified anymore. Nothing is more settled in law than that once a judgment attains finality it thereby becomes immutable and unalterable. It may no longer be modified in any aspect, 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. However, this rule is subject to certain exceptions. One exception is that where facts and/or events transpire after a decision has become executory, which facts and/or events present a supervening cause or reason, which renders the final and executory decision no longer enforceable.

they received on May 26, 2000, they had fifteen days or until June 8, 2000 to appeal. They, however, did not appeal and instead filed on July 24, 2000 before the Court of Appeals the petition for certiorari. (Heirs of Baldomero Roxas Y Hermanos vs. Garcia, G.R. No. 146208, 8-12-04). REMEDIES AGAINST JUDGMENTS OR FINAL ORDERS NEW TRIAL; evidence Newly discovered

For a particular piece of evidence to be regarded as “newly discovered” for purposes of a new trial, it is essential that the offering party had exercised reasonable diligence in seeking to locate such evidence before pr during trial but had nonetheless failed to secure it. (Emin vs. De Leon, et. al., G.R. No. 139794, 02/27/2002). A motion for new trial must be based on newly discovered evidence. In which case, the following must concur: (1) the evidence is discovered after trial; (2) such evidence could not have been discovered and produced at the trial even with the exercise reasonable diligence; and (3) the evidence is material, not merely cumulative, corroborative, or impeaching and of such weigh that, if admitted, probably change the judgment. (People vs. Bongalon, G.R. No. 125025, 01/23/2002)

Under the law, the court may modify or alter a judgment even after the same has become executory whenever circumstances transpire rendering its execution unjust and inequitable, as where certain facts and circumstances justifying or requiring such modification or alteration transpired after the judgment has become final and executory. (Abalos, et. al. vs. Philex Mining Corporation, G.R. No. 140374, 11/27/2002) INTERLOCUTORY ORDER

Interlocutory Orders are those that determine incidental matters that do not touch on the merits of the case or put an end to the proceedings. The proper remedy to question an improvident interlocutory order is a petition for certiorari under Rule 65, not Rule 45. A petition for review under Rule 45 is the proper mode of redress to question final judgments. (Ricardo S. Silverio Jr. vs. Filipino Business Consultants, R.R. No. 143312, August 12, 2005) It is settled that an order dismissing a complaint is a final, not an interlocutory order, hence, a proper subject of appeal. If indeed petitioners received the Dec. 17, 1999 Order of the trial court dismissing their complaint on Feb. 1, 2000 and filed on Feb 3, 2000 a motion for reconsideration thereof, the Order denying which motion

Under the Rules, the moving party must show that he has a meritorious defense. The facts constituting the movant’s good and substantial defense, which he may prove if the petition were granted, must be shown in the affidavit which should accompany the motion for a new trial. We examined petitioner’s Affidavit of Merit and find that it did not contain clear statements of the facts constituting a good and valid defense which he might prove if given the chance to introduce evidence. The allegations that he has a “meritorious defense” and a “good cause” are mere conclusions which did not provide the court with any basis for determining the nature and merit of the case. An affidavit of merit should state facts, and not mere opinion or conclusions of law. Petitioner’s

motion for new trial and affidavit of merit did not mention the evidence which he was prevented from introducing, nor did it allege that such evidence would change the outcome of the case. (Uy vs. First Metro Integrated Steel Corporation, G.R. No. 167245, September 27, 2006) MOTION TO FILE EXTENSION OF MOTION FOR RECONSIDERATION DOES NOT TOLL REGLEMENTARY PERIOD As early as 1986, the Court has consistently held that the fifteenday reglementary period for appealing or for filing a motion for reconsideration or new trial cannot be extended, except in cases pending with the Supreme Court as a court of last resort which may in its discretion either grant or deny the extension requested. Consequently, the filing of petitioner’s motion for extension of time to file motion for reconsideration did not toll the fifteen-day period before the CA decisions become final and executory. Since the decision of the CA becomes final and executory at the time of the filing of the present petition, the Court can no longer alter or modify the same. The failure of the petitioner to file his motion for reconsideration within the period fixed by law renders the decision final and executory. Such failure carries with it the result that no longer be attacked by any of the parties or be modified, directly or indirectly, even the highest court of the land. Exceptions: matter of life, liberty honor or property; the existence of special or compelling circumstances; the merits of the case; cause not directly attributable to the fault or negligence of the party favored by the suspension of the rules; lack of any showing that the review sought is merely frivolous and dilatory; the other party will not be unjustly prejudiced thereby. (Barnes vs. Padilla, G.R. No. 160753, Sept. 30, 2004) FRESH PERIOD RULE • 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 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. The fresh period of 15 days becomes significant only when a party opts to file a motion for new trial or motion for reconsideration. (Neypes vs. Court of Appeals, G.R. No. 141524, September 14, 2005)

However, all is not lost for petitioner. In Neypes, et al. v. Court of Appeals, we standardized the appeal period provided in the Rules of Court. In Neypes, we granted a “fresh period” of 15 days within which to file the notice of appeal, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration or any final order or resolution. (Elbiña vs. Ceniza, G.R. No. 154019, August 10, 2006)

RELIEF FROM JUDGMENT

The Revised Rule on Summary Procedure covers all ejectment cases, regardless of whether they involve questions of ownership. Under that Rule, a petition for relief from judgment is a prohibited pleading. Hence, a party to an ejectment suit in the municipal trial court may not file such pleading in the regional trial court. (Siasat, et. al. vs. Court of Appeals, et. al., G.R. No. 129382, 01/23/2002). Section 3 of Rule 38 of the 1997 Rules of Civil Procedure provides that a verified petition for relief must be filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to set aside and not more than six (6) months after such judgment or final order has been entered or such proceeding has been taken. It must be accompanied with affidavits showing the fraud, accident mistake, or excusable negligence

relied upon, and the facts constituting petitioner’s good and substantial cause of action or defense. (Samartino vs. Raon, et. al., G.R. No. 131482, 07/03/2003) Under the former rule, an order denying a petition from relief from judgment was subject to appeal and, in the course thereof, the appellant could assail the judgment on the merits. The purpose of this rule was to enable the appellate court to determine not only the existence of the ground relied upon whether it be fraud, accident, mistake or excusable negligence, but also and primarily the merit of the appellant’s cause of action or defense, as the case maybe. Should the appellate court find that one of the grounds for relief from judgment existed and the petitioner had a good cause of action or defense, it would not reverse or modify the judgment on the merits because the judgment involved had become final and executory. Instead, it would reverse the denial or dismissal of the petition for relief from judgment in the main case, and remand the case to the lower court for a new trial in accordance with then Section 7, Rule 38 of the former Rules.

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 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. (Spouses Mesina vs. Meer, G.R. No. 146845, 07/02/2002) Relief will not be granted to a party who seeks to be relieved from the effects of the judgment when the loss of the remedy at law was due to his own negligence or a mistaken mode of procedure, otherwise, the petition for relief will be tantamount to reviving the right to appeal which has already been lost either because of inexcusable negligence or due to mistaken mode of procedure by counsel. However, in exceptional cases, when the mistake of counsel is so palpable that it amounts to gross negligence, the Court affords the party a second opportunity to vindicate his right. (Spouses Mesina vs. Meer, G.R. No. 146845, 07/02/2002) ANNULMENT OF JUDGMENTS •

On the other hand, The 1997 Rules of Civil Procedure, specifically Section 1(b) Rule 41, provides that no appeal may be taken from any order denying a petition for relief or any similar action seeking the relief from judgment. The last paragraph thereof, however, allows the aggrieved party to file a special civil action for certiorari under Rule 65 of the Rules. Under Section 4 of Rule 65 of the new Rules, the petition may be filed not latter than 60 days from notice of the judgment, order, or resolution sought to be annulled. (Government Service Insurance System vs. Bengson Commercial Buildings, Inc., G.R. No. 137448, 01/31/2002) • The procedural change in Rule 38 is in line with Rule 5, prescribing uniform procedure for municipal and regional trial courts and resignation of municipal/metropolitan trial courts or record. While Rule 38 uses the phrase “any court”, it refers only to municipal/metropolitan and regional trial courts.

An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose of such action is to have the final and executory judgment set aside so that there will be a renewal of litigation. It is resorted to in cases where the ordinary remedies of new trial, appeal, petition for relief from judgment, or other appropriate remedies are no longer available through no fault of the petitioner, and is based on only two grounds: extrinsic fraud, and lack of jurisdiction or denial of due process. (Cynthia Alaban vs. CA, G.R. No. 156021, September 23, 2005) An action to annul a final judgment on the ground of fraud lies only if the fraud is extrinsic or collateral in character. Fraud is regarded as extrinsic where 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. The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court. (Cynthia Alaban vs. CA, G.R. No. 156021, September 23, 2005)

Further it must be emphasized that the fraud or deceit cannot be of the losing party’s own doing, nor must it contribute to it. The extrinsic fraud must be employed against it by the adverse party, who because of some trick, artifice, or device, naturally prevails in the suit. The end result not only defeats legitimate rights of the losing party in the lawsuit. On a larger scale, it circumvents the adversarial system of our litigation process and makes a mockery of our judicial contests. (People vs. Vera, G.R. No. 134732, 05/29/2002).

for execution pending appeal but the losing party files a motion for reconsideration of the decision or final order within the required 15day period under Rule 39 of the Revised Rules of Court. In such a case, the motion of the prevailing party for execution pending appeal may be held in abeyance pending final resolution of the losing party’s motion for reconsideration of the decision or final order. Upon the other hand, if the losing party does not appeal the decision or final order, the execution of the decision becomes a matter of right on the part of the prevailing party. In such case, the motion for execution pending appeal becomes moot and academic, as the prevailing party may file a motion for a writ of execution of the decision or final order. (Sangkay vs. NPC, G.R. NO. 141447, May 4, 2006)

EXECUTION OF JUDGMENTS

Once a judgment becomes final, it is basic that the prevailing party is entitled as a matter of right to a writ of execution the issuance of which is the trial court’s ministerial duty, compellable by mandamus. (Greater Metropolitan Manila Solid Waste Management Committee vs. Jancom Environmental Corporation, G.R. No. 2163663, June 30, 2006)

EXECUTION PENDING APPEAL

However, the trial court may grant execution before the expiration of the period to appeal upon motion of the prevailing party provided that 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, and there are good reasons for such execution to be stated in a special order after due hearing. The rule does not proscribe the prevailing party from filing such motion even before the losing party has received his copy of the decision or final order of the trial court. Such motion for execution pending appeal may be filed by the prevailing party at any time before the expiration of the period to appeal. It may happen that, upon service on the prevailing party of a copy of the decision or final order of the trial court, he files a motion

Execution pending appeal requires the observance of the following requisites: (a) there must be a motion therefore by the prevailing party; (b) there must be a good reason for issuing the writ of execution; and (c) the good reason must be stated in a special order. The prevailing doctrine as provided for in Sec. 2, paragraph 3 of Rule 39 of the Rules of Court is that discretionary execution is permissible only when good reasons exist for immediately executing the judgment before finality or pending appeal or even before the expiration of the period to appeal. Good reasons consist of compelling circumstances justifying immediate execution lest judgment becomes illusory, or the prevailing party after the lapse of time be unable to enjoy it, considering the tactics of the adverse party who may have apparently no cause but to delay. Such reasons must constitute superior circumstances demanding urgency which will outweigh the injury or damages should the losing party secure a reversal of the judgment. The execution of judgment pending appeal is an exception to the general rule and must, therefore, be strictly construed. (Carlos Villamor vs. National Power Corporation, G.R. No. 146735, October 25, 2005)

WRIT OF EXECUTION

While it becomes the trial court’s ministerial duty to issue a writ of execution when a judgment or order becomes final and executory, a writ of execution may be refused on equitable grounds. (Spouses San Antonio vs. CA, et. al., G.R. No. 121810, 12/07/2001) It is a fundamental legal axiom that a Writ of Execution must conform strictly to the dispositive portion of the decision sought to be executed. (Banquerigo vs. Court of Appeals, G.R. No. 164633, August 7, 2006)

debtor which may be found owing to such debtor by a third person. In Perla Compania de Segurros, Inc. vs. Ramolete, the Court declared that through service of the writ of garnishment, the garnishee becomes a “virtual party” to or a “forced intervenor” in the case and the trial court thereby acquires jurisdiction to bind court thereby acquires jurisdiction to bind him to compliance with all the orders and processes of the trial court with a view to the complete satisfaction of the judgment of the court. (PNB Management and Development Corp, et. al. vs. R & R Metal Casting and Fabricating, Inc., G.R. No. 132245, 01/03/2002) SEVERAL JUDGMENT A several judgment is proper only when the liability of each party is clearly separate and distinct from that of his co-parties, such that the claims against each of them could have been the subject of separable suits, and judgment for or against one of them will not necessarily affect the other. Where a common cause of action exists against the defendants, as in actions against solidary debtors, a several judgment is not proper. (De Leon vs. Court of Appeals, et. al., G.R. No. 138884, 06/06/2002) EFFECT OF JUDGMENTS

The dispositive portion or the fallo is its decisive resolution and is thus the subject of execution. The other parts of the decision may be resorted to in order to determine the ratio decidendi for the disposition. Where there is a conflict between the dispositive part and the opinion of the court contained in the text or body of the decision, the former must prevail over the latter on the theory that the dispositive portion is the final order, while the opinions merely a statement ordering nothing. Hence, the execution must conform with that which is ordained or decreed in the dispositive portion of the decision. The only exception when the body of a decision prevails over the fallo is when the inevitable conclusion from the former is that there was a glaring error in the latter, in which case the body of the decision will prevail. (PH Credit Corporation vs. Court of Appeals, et. al., G.R. No. 109648, 11/22/2001). GARNISHMENT • In Tayabas Land Co. vs. Sharruf, the Court ruled that garnishment is consist in the citation of some stranger to the litigation, who is debtor to one of the parties to the action. By this means such debtor stranger becomes a forced intervenor, and the court having acquired jurisdiction over his personal means of citation, requires him to pay his debt, not to his former creditor, but to the new creditor, who is creditor in the main litigation. It is merely a case of involuntary novation by substitution of one creditor for another. Upon principle, the remedy is a species of attachment and execution for reaching any property pertaining to a judgment

The general rule that no court has the power to interfere by injunction with the judgments or decrees of another court with concurrent or coordinate jurisdiction possessing equal power to grant injunctive relief applies only when no thirdparty or a stranger to the action asserts a claim over the property levied upon, the claimant may vindicate his claim by an independent action in the proper civil court which may stop the execution of judgment on the property not belonging to the judgment debtor. (Yuppanco Cotton Mills, Inc. vs. CA, et. al., G.R. No. 126322, 01/16/2002)

EXECUTION OF JUDGMENT; where property is claimed by a third-party--remedies by third party claimants • A third-party whose property has been levied upon by a sheriff to enforce a decision against a judgment debtor is afforded with several alternative remedies to

protect its interests. The third-party may avail himself of alternative remedies cumulatively, and one will not preclude the third party from availing himself of the other alternative remedies in the event he failed in the remedy first availed. Thus, a third party may avail himself of the following alternative remedies: (1) file third-party claim with the sheriff of the labor arbiter; (2) if the third-party claim is denies, the third party may appeal the denial to the NLRC; (3) even if a third party claim was denied, a third party may still file a proper action with a competent court to recover ownership of the property illegally seized by the sheriff. (Yuppanco Cotton Mills vs. CA, G.R. No. 126322, 01/16/2002). SHERRIF

does not provide the period during the executing sheriff himself must act upon them, it nevertheless behooved the sheriff, as an officer of the court, to act reasonable dispatch on all matters entrusted to him or order not to unduly delay the administration of justice. (Talion vs. Ayupan, A.M. No. P-011529, 01/23/2002)

Sheriff’s are responsible, among other things, for the prompt service and implementation of writs and other orders issued by the Court. Sheriffs are court officers and like everyone else in judiciary, are called upon to discharge their sworn duties with great care and diligence. Sheriffs cannot afford to err or to be inefficient in the work assigned to him without compromising the integrity for their office and the proper administration of justice. When a part of the judicial machinery fails, the entire judicial system is virtually affected by it in an adverse way. (Oliveros vs. San Jose, A.M. No. P-02-1582, 01/28/2003) Under the 1997 Revised Rules of Civil Procedure, the service of summons maybe entrusted to the sheriff. He is required, within 5 days after service to make a return, personally or by registered mail, to the plaintiffs counsel, and to return the summons to the clerk who issued it, together with the proof of service. The sheriff has the duty to serve the process promptly and to make a return of his service within a reasonable time. This is necessary in order for the court to determine if the period for filing an answer has not yet expired. (Talion vs. Ayupan, A.M. No. P-01-1529, 01/23/2002) With respect to the petitions for extrajudicial foreclosure of mortgages, although Act No. 3135

Although a writ of execution is effective for 5 years from the date of entry of the judgment, the sheriff tasked with its implementation must proceed with reasonable dispatch to execute it and to make a return immediately. If it is not satisfied, he must make a report to the court starting the reason for the failure of execution within 30 days after his receipt of the writ and make a report every 30 days thereafter until the judgment is satisfied. (Talion vs. Ayupan, A.M. No. P-01-1529, 01/23/2002) Sheriffs play an important role in the administration of justice. As agents of the law, they are called upon to discharge their duties with due care and utmost diligence because in serving the court’s writs and processes and implementing its orders, they cannot afford to err without affecting the integrity of their office and the efficient administration of justice. (Development Bank of the Philippines vs. Nequinto, A.M. No. P-00-1371, 01/23/2002)

APPEAL

Time and again it has been held that the right to appeal is not a natural right or a part or a part of due process, it is merely a statutory privilege, and maybe exercise only in the manner and in accordance with the provisions of law. The party who seeks to avail of the same must comply with the requirements of the rules. Failing to do so, the right to appeal is lost. (Ong vs. CA, G.R. No. 152494, 922-04) The right to appeal is a statutory right and the party who seeks to avail of the same must comply with the requirements of the Rules. Failing to do so, the right to appeal is lost. (Asian Spirit Airlines vs. Spouses Benjamin and Anne Marie

Bautista, G.R. No. February 14, 2005)

164668,

Appeals, et. 11/22/2001)

al.,

G.R.

No.

142316,

In not a few instances, the Court relaxed the rigid application of the rules of procedure to afford the parties the opportunity to fully ventilate their cases on the merits. This is in line with the time-honored principle that cases should be only after giving all parties the chance to argue their causes and defenses. Technicality and procedural imperfection should, thus, not serve as basis of decisions. In that way, the ends of justice would be better served. (Asian Spirit Airlines vs. Spouses Benjamin and Anne Marie Bautista, G.R. No. 164668, February 14, 2005) The Rules of Court prescribe two (2) modes of appeal from decisions of the Regional Trial Court to the Court of Appeals. When the trial court decides a case in the exercise of its original jurisdiction, the mode of review is by an ordinary appeal in accordance with Section 2 (a) of Rule 41. In contrast, where the assailed decision was rendered by the trial court in the exercise of its appellate jurisdiction, the mode of appeal is via a petition for review pursuant to Rule 42.

The proper remedy of a party aggrieved by a decision of the Court of Appeals is a petition for review under Rule 45, which is not similar to a petition for certiorari under Rule 65 of the Rules of Court. A special civil action under Rule 65 is an independent action based on the specific grounds therein provided and, as a general rule, cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that under Rule 45. (Fortune Guarantee and Insurance Corporation vs. Court of Appeals, et. al., G.R. No. 110701, 03/12/2002). Appeals from the decisions or final orders of the Civil Service Commission to the Court of Appeals should be by a petition for review pursuant to Rule 43 of the 1997 Rules of Civil Procedure. As provided by Section 5 thereof, a copy of the petition should be served on the adverse party and on the Civil Service Commission. Section 6(a) provides that the petition should state the full names of the parties to the case without impleading the Civil Service Commission either as petitioner or respondent. Section 7 provides that the failure of the petitioner to comply with any of the foregoing requirements regarding proof of service and the contents of the petition is sufficient ground for the dismissal of the same. (Appeal from decision of Civil Service Commission, Pastor vs. City of Pasig, et. al., G.R. No. 146873, 05/09/2002). Under the Internal Rules of the Court of Appeals, each case is raffled to a Justice twice – the first raffle fro completion of records and the second raffle for study and report. (Raffling of cases, Public Estates Authority vs. Uy, G.R. No. 147933, 12/12/2001). FROM JUDGMENT ON THE

Cases elevated to the Court of Appeals are treated differently depending upon their classification into one of three (3) categories: appealed criminal cases and special cases. Be it noted that all cases are under the supervision and control of the members of the Court of Appeals in all stages, from the time of filing until the remand of the cases to the courts or agencies of origin. Ordinary appealed civil cases undergo two (2) stages. The first stage consists of completion of the records. The second stage is for study and report, which follows when an appealed case is deemed submitted for decision. At each stage, a separate raffle is held. Thus, a preliminary raffle is held at which time an appealed case is assigned to a justice for completion. After completion, when the case is deemed ripe for judgment the Justice to whom the case will be assigned for study and report. Each stage is distinct. It may happen that the Justice to whom the case was initially raffled for completion may not be the same Justice who will write the decision thereon. (De Liano, et. al. vs. Court of

APPEAL MERITS

The general rule is that the remedy to obtain reversal or modification of judgment on the merits is appeal. 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 vs. CA, G.R.No. 140150, August 22, 2005) APPEALS INVOLVING QUESTIONS OF LAW

the proofs before the appellate court will not be considered in disposing of the issues of an action. This is true whether the decision elevated for review originated from a regular court or an administrative agency or quasi-judicial body and whether it was rendered in a civil case, a special proceeding, or a criminal case. Piecemeal presentation of evidence is simply not accord with orderly justice. The same rules apply with greater force in certiorari proceedings. Indeed, it would be absurd to hold public respondent guilty of grave abuse of discretion for not considering evidence not presented before it. The patent unfairness of petitioner’s plea, prejudicing as it would public and private respondents alike, militates against the admission and consideration of the subject documents. (Matugas vs. COMELEC, G.R. No. 151944, 01- 2-04) CONSIDERATION OF MATTERS NOT ASSIGNED AS ERRORS IN AN APPEAL • While as a general rule, a party who has no appealed is not entitled to affirmative relief other than what was granted in the decision of the court below, law and jurisprudence authorize a tribunal to consider errors, although unassigned, if they involve: (1) errors affecting the lower court’s jurisdiction over the subject matter; (2) plain errors not specified; and (3) clerical errors.

A determination as to the correctness of the conclusions drawn from the pleadings undoubtedly involves a question of law. There is no dispute with respect to the fact that when an appeal raises only pure questions of law, the Supreme Court has jurisdiction to entertain the same. (Korea Exchange Bank vs. Filkor Business Integrated, Inc., et. al., G.R. No. 138292, 04/10/2002) Basic is the distinction between legal and factual issues. A question of law exist when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts; or when the issue does not call for an examination of probative value of the evidence presented, the truth or falsehood of facts or when the query invites calibration of the whole evidence considering mainly credibility of witnesses, the existence and relevancy of specific surrounding circumstances, as well as their relation to each other and to the whole, and the probability of the situation. (Chang Kai Shek College vs. CA, G.R. No. 152988, 824-04). While the well entrenched doctrine is that pure questions of fact may not be subject of appeal by certiorari under Rule 45 of the 1997 Rules of Civil procedure as this mode of appeal is generally restricted to questions of law, such rule is not absolute. There are instances when the Court admits of certain exceptions, as when the findings of the CA are contrary to those of the trial court. (DiazEnriquez vs. people of the Philippines, G.R. No. 141031, 8- 3104) The rule in appellate procedure is that a factual question may not be raised for the first time on appeal, and documents forming no part of

The 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. Rules of procedure are 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 be avoided. (C.F. Sharp & Co., Inc. vs. Northwest Airlines, Inc., G.R. No. 133498, 04/18/2002) • Nonetheless, the Supreme Court has rules that an appellate court is imbued with sufficient discretion to review matters, not otherwise assigned as errors on appeal, in the following instances:

a) Grounds not assigned as errors but affecting jurisdiction of the court over the subject matter. b) Matters not assigned as errors on appeal but are evidently plain or

clerical errors within contemplation of law; c) Matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice; d) Matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; e) Matters not assigned as errors on appeal but closely related to an error assigned; f) Matters not assigned as errors on appeal but upon which the determination of a question properly assigned is dependent. The foregoing citations specifically referred to “appellate courts” but are equally applicable to appellate administrative agencies, such as the SEC, where rules of procedure are liberally construed. (Law Firm of Abrenica, Tungol & Tibayan, et. al. vs. Court of Appeals, et. al., G.R. No. 143706, 04/05/2002) IS AN ORDER DENYING A MOTION FOR RECONSIDERATION APPEALABLE? • It depends.

order of dismissal itself. (Apuyan vs. Haldeman, G.R. No. 129980, Sept. 20, 2004) PERIOD OF APPEAL

The period of appeal is not only mandatory but more importantly, it is jurisdictional. (Tancinco vs. Government Service Insurance System, et. al., G.R. No. 132916, 11/16/2001) Rules on the perfection of appeals, particularly on the period for filing notices of appeal, must occasionally yield to the loftier ends of substantial justice and equity. In this case, the one-day delay in the filing of the Notice of Appeal was due to the senseless foot-dragging of the public prosecutor. The state must not be prejudice or estopped by the negligence of its agents. (Remulla vs. Manlongat, G.R. No. 148189, Nov. 11, 2004)

APPEAL AND DOCKET FEES

The proscription against appealing from an order denying a motion for reconsideration refers to an interlocutory order, and not to a final order or judgment. The rationale behind the rule is to prevent undue delay, useless appeal and undue inconvenience to the appealing party by having to assail orders as they are promulgated by the court, when they can be contested in a single appeal. The appropriate remedy is thus for the party to wait for the final judgment or order and assign such interlocutory order as an error of the court on appeal. The denial of a motion for reconsideration of an order of dismissal of a complaint is not an interlocutory order, however, but a final order as it puts an end to the particular matter resolved, or settles definitely the matter therein disposed of, and nothing is left for the trial court to do other than to execute the order. Not being an interlocutory order, an order denying a motion for reconsideration of an order of dismissal of a complaint is effectively an appeal of the

The mere filing of the Notice of Appeal is not enough, for it must be accompanied by the payment of the correct docket fees. Payment in full of docket fees within the prescribed period is mandatory. It is essential requirement without which the decision appealed from would become final and executory as if no appeal had been filed. Failure to perfect an appeal within the prescribed period is not mere technicality but jurisdictional and failure to perfect an appeal renders the judgment final and executory. (M.A. Santander Construction, G.R. no. 136477, November 10, 2004)

FAILURE TO FILE MEMORANDUM ON APPEAL • Rule 40, Section 7 of the 1997 Rules of Civil procedure is a new provision. Said section is based on Section 21(c) and (d) of the Interim Rules Relative to the Implementation of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129) with modifications. These include the following changes: (1) the appellant is required to submit a memorandum discussing the errors imputed to the lower court within fifteen (15) days from notice, and the appellee is given the same period counted from receipt of appellant’s

memorandum to file his memorandum; and (2) the failure of appellant to file a memorandum is a ground for the dismissal of the appeal. Rule 40, Section 7(b) provides that “it shall be the duty of the appellant to submit a memorandum” and failure to do so “shall be a ground for dismissal of the appeal.” The use of the word “shall” in a statute or rule expresses what is mandatory and compulsory. Further, the Rule imposes upon an appellant the “duty” to submit his memorandum. A duty is a “legal” or moral obligation, mandatory act, responsibility, charge, requirement, trust, chore, function, commission, debt, liability, assignment, role, pledge, dictate, office, (and) engagement.” Thus, under the express mandate of said Rule, the appellant is duty-bound to submit his memorandum on appeal. Such submission is not a matter of discretion on his part. His failure to comply with this mandate or to perform said duty will compel the RTC to dismiss his appeal. It is true that the Rules should be interpreted so as to give litigants ample opportunity to prove their respective claims and that a possible denial of substantial justice due to legal technicalities should be avoided. But it is equally true that an appeal being a purely statutory right, an appealing party must strictly comply with the requisites laid down in the Rules of Court. In other words, he who seeks to avail of the right to appeal must play by the rules. (Enriquez vs. Court of Appeals, et. al., G.R. No. 140473, 01/28/2003) FAILURE TO SERVE AND FILE COPIES OF APPELLATE BRIEF

A careful reading of the abovecited provision reveals that the parties have the option of submitting either: (1) a duplicate original or (2) a true copy of the assailed decision of final order certified correct by the clerk of court of the Regional Trial Court. A “duplicate original” need not be certified correct. However, it is equally important to note that a bare allegation that a copy of the assailed decision or final order is indeed a “duplicate original” is not sufficient to establish its authenticity or genuineness. Administrative Circular No. 3-96, paragraph 3(1)(2)(6), provides the definition of a “duplicate original copy”, the requisite indications to qualify a copy as such and the sanctions impose in case of non-compliance therewith. (Spouses Lim vs. Uni-Tan Marketing Corporation, G.R. No. 147328, 02/20/2002) DISMISSAL OF APPEAL • The grounds for dismissal of an appeal under Section 1 of Rule 50 of the Rules of Court are discretionary upon the Court of Appeals. This can be seen from the very wording of the Rules, which uses the word ‘may’ instead of ‘shall’.

Rule 50, Section 1(e) of the Revised Rules of Court, expressly authorizes the CA to dismiss an appeal for, inter alia, “failure of appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules”. (Del Mar vs. Court of Appeals, et. al., G.R. No. 139008, 03/13/2002)

With the exception of Sec. 1(b), the grounds for the dismissal of an appeal are directory and not mandatory and it is not the ministerial duty of the court to dismiss the appeal. The discretion, however, 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. (De Leon vs. Court of Appeals, et. al., G.R. No. 13884, 06/06/2002)

FAILURE TO SUBMIT DUPLICATE COPIES/CERTIFIED TRUE COPIES OF APPEALED JUDGMENT/ORDER • Section 2 of Rule 42 of the Rules of Court explicitly provides that a petition filed with the CA must be accompanied by duplicate originals or certified true copies of the assailed decisions or final orders.

The dismissal of appeals on purely technical grounds is frowned upon. While the right to appeal is a statutory, not natural right, nonetheless it is an essential part of our judicial system and court should proceed with caution so as not to deprive a party of the right to appeal, but rather, ensure that every party-litigant has the amplest opportunity for the proper and just disposition of his cause, freed from the constraints of technicalities. (Salazar, et. al. vs. Court of Appeals, et. al., G.R. No. 142920, 02/06/2002) The power conferred upon the Court of Appeals to dismiss an appeal is discretionary and not merely ministerial. With that

affirmation comes the caution that such 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. (Philippine Merchant Marine School, Inc. vs. Court of Appeals, et. al., G.R. No. 137771, 06/06/2002)

Procedural rules are required to be followed as a general rule, but they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his noncompliance with the procedure required. Dismissal of appeals purely on technical grounds is frowned upon and the rules of procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help secure not override, substantial justice, and thereby defeat their very aims. The rules have been drafted with the primary objective of enhancing fair trials and expediting the proper dispensation of justice. As a corollary, if their application and operation tend to subvert and defeat, instead of promote and enhance its objective, suspension of the rules is justified. (Rodil Enterprises, Inc. vs. Court of Appeals, et. al., G.R. No. 129609, 11/29/2001) PROVISIONAL REMEDIES

Considering the far-reaching effects of a writ of preliminary injunction, the trial court should have exercised more prudence and judiciousness in its issuance of the injunction order. While generally the grant of a writ of preliminary injunction rests on the sound discretion of the court taking cognizance of the case, extreme caution must be observed in the exercise of such discretion. The discretion of the court a quo to grant an injunctive writ must be exercised based on the grounds and in the manner provided by law. (Manila International Airport Authority vs. Court of Appeals, et. al., G.R. No. 118249, 02/14/2003)

PRELIMINARY INJUNCTION

To be entitled to the injunctive relief sought, need to establish the following requirements: (1) the existence of a right to be protected; and (2) that the acts against which the injunction is to be directed are violative of the said right. (Bokingo vs. CA, G.R. No. 161739, May 4, 2006) The requisites necessary for the issuance of a writ of preliminary injunction are: (1) the existence of a clear and unmistakable right that must be protected; and (2) an urgent and paramount necessity for the writ to prevent serious damage. The duty of the court taking cognizance of a prayer for a writ of preliminary injunction is to determine whether the requisites necessary for the grant of an injunction are present in the case before it.

Pursuant to Section 1 if Rule 58 of the Revised Rule of Civil Procedure, one of the grounds for the issuance of a writ of preliminary injunction is a proof that the applicant is entitled to the relief demanded and the whole or part of such relief demanded and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, either for a limited period of perpetually. Thus, a preliminary injunction order may be granted only when the application for the issuance of the same shows facts entitling the applicant to the relief demanded. This is the reason why the Court ruled that it must be shown that the invasion of the right sought to be protected is material and substantial, that the right of the complainant is clear and unmistakable, and, that there is an urgent and paramount necessity for the writ to prevent serious damage. (Kho vs. Court of Appeals, et. al., G.R. No. 115758, 03/19/2002)

PRELIMINARY MANDATORY INJUNCTION

It is a long settled rule that for a writ of preliminary mandatory injunction to issue, the following requisites must be present: (1) that the complainant has a clear and real right; (2) that his right has been violated and the invasion is material and substantial; and (3) there is an urgent and permanent necessity for the writ to prevent serious damage. Equally settled is that, as a rule, injunction will not be granted to take property out of the possession or control of one of the party or place it into that of another whose title has not clearly

been established by law. (Passport Phils., Inc. vs. Niccolo Sports, Inc., G.R. No. 141602, 11/22/2001)

Generally, the grant or denial of a writ of preliminary injunction in a pending case rests in the sound discretion of the court taking cognizance of the case. The assessment and the evaluation of evidence in the issuance of the writ of the preliminary injunction involve findings of facts ordinarily left to the trial court for its conclusive determination. (Bustamante, et. al. vs. Court of Appeals, et. al., G.R. No. 126371, 04/17/2002) A preliminary injunction is a provisional remedy, an adjunct to the main case subject to the latter’s outcome. Its sole objective is the preserve the status quo until the trial court hears fully the merits of the case. Its preliminary injunction purpose is not to correct the wrong already consummated, or to redress an injury already sustained, or to punish wrongful acts already committed, but to preserve and protect the rights of the litigants during the pendency of the case. The status quo sought to be preserved by a preliminary injunction is the last actual, peaceful and uncontested situation which precedes a controversy. The status quo should be existing ante litem motam or at the time of the filling case. For this reason, a preliminary injunction should not establish new relations between the parties, but merely maintain or re-establish the pre-existing relationship between them.

irremediable injury to some of the parties before their claims can be thoroughly studied and adjudicated its sole aim is to preserved then status quo until the merit of the case scan be heard fully”. Thus, it will be issued only upon a showing of a clear and unmistakable right that is violated. Moreover, an urgent and permanent necessity for its issuance must be shown by the applicant. (First Global Realty and Development Corporation vs. San Agustin, G.R. No. 144499, 02/19/2002)

A finding that the applicant for preliminary injunction may suffer damage not capable of pecuniary estimation does not suffice to support an injunction, where it appears that the right of the applicant is unclear or disputed. (Manila International Airport Authority vs. Court of Appeals, et. al., G.R. No. 118249, 02/11/2003) The granting of an injunctive writ based on a technical ground rather than compliance with the requisites for the issuance of the same is contrary to the primary objective of legal procedure which is to serve as a means to dispense justice to the deserving party. (Kho vs. Court of Appeals, et. al., G.R. No. 1157578, 03/19/2002) SPECIAL CIVIL ACTIONS

DECLATORY RELIEF

A preliminary injunction is not proper when its purpose is to take the property out of the possession or control of one party and transfer the same to the hands of another who did not have such control at the inception of the case and whose legal title has not clearly been established. Moreover, a writ of preliminary injunction may only require a party to refrain from a particular act or acts. (Bustamante, et. al. vs. Court of Appeals, et. al., G.R. No. 126371, 04/17/2002)

The purpose of a preliminary injunction, then, is “to prevent threatened or continuous

The purpose of an action for declaratory relief is to secure an authoritative statements of the rights and obligations of the parties under a statutes, deed, contract etc., for their guidance in the enforcement thereof, or compliance therewith, and not to settle issues arising from an alleged breach thereof. It maybe entertained only before the breach or violation of the statutes, deed, contract etc., to which it refers. The petition gives a practical remedy in ending controversies which have not reached the stage where other relief is immediately available. It supplies the need for as form of action that will set controversies at rest before they lead to repudiation of obligations, invasion of rights, and the commission of wrongs. (Manila Electronic Company vs. Philippine Consumers Foundation,

Inc., et. al., 01/23/2002) CERTIORARI

G.R.

No.

101783,

Certiorari is not proper if appeal is available. Where appeal is available to the aggrieved party, the action for certiorari will not be entertained. Remedies of appeal (including petitions for review) and certiorari are mutually exclusive, not alternative or successive. Hence, certiorari is not and cannot be a substitute for an appeal, especially if one’s own negligence or error in one’s choice of remedy occasioned such loss or lapse. One of the requisites of certiorari is that there be no available appeals any plain, speedy and adequate remedy. Where an appeal is available, certiorari will not prosper, even if the ground therefore is grave abuse of discretion. (Madrigal Transport Inc., vs. Lapanday Holdings Corporation, G.R. No. 156067, 8-11-04) A remedy is considered plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment or rule, order or resolution of the lower court or agency. (Carlito Montes vs. CA, G.R. No. 143797, May 4, 2006) An error in judgment is one which the court may commit in the exercise of its jurisdiction, and which error is reviewable only by an appeal. On the other hand, an error of jurisdiction is one where the act complained of was issued by the court, officer or a quasijudicial body without or in excess of jurisdiction, or with grave abuse of discretion. This error is correctible only by the extraordinary writ of certiorari.

respondent, but that it acted with grave abuse of discretion amounting to lack or excess of jurisdiction. (The Hongkong and Shanghai Banking Corporation vs. NLRC, G.R. No. 113541, 11/22/2001)

The phrase “grave abuse of discretion” is well-defined in our jurisprudence. It exists where an act of a court or tribunal is performed with a capricious or whimsical exercise of judgment equivalent to lack of jurisdiction. 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 a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. (Jinalinan Technical School, Inc. vs. NLRC, G.R. No. 163167, August 9, 2006) The general rule that the extraordinary writ of certiorari is not available to challenge interlocutory orders of the trial court may be subject to exceptions. When the assailed interlocutory orders are patently erroneous or issued with grave abuse of discretion the remedy of certiorari lies. (Ochoa vs. Choa, G.R. No. 143373) Under Section 5 rule 43 of the 1997 Rules of Civil Procedure as amended, final orders or resolutions of the CSC are appealable to the CA through petition for Review. As held by the court in numerous cases, a special civil action for certiorari is not a substitute for a lost or lapsed remedy of appeal. (Tuazon, Jr., et. al. vs. Godoy, G.R. No. 146927, 12/10/2002) A basic requisite for such action to lie is that there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law. Certiorari is a remedy of last recourse and is limited form of review. Its principal function is to keep inferior tribunals within their jurisdiction. Certiorari cannot be used as a substitute for the lost remedy of appeal. (Almuete, et. al. vs. Andres, G.R. No. 122276, 11/20/2002)

Considering that the instant petition assails the jurisdiction of the court a quo to issue the Writ of Execution, Notice and the Order of Demolition in view of the alleged non-finality of the decision of the CA, it falls within the ambit of a special civil action for certiorari under Rule 65 of the Rules of Court. (A.F. Sanchez Ibrokerage Inc., G.R. No. 147079, 12- 2104)

In special civil action for certiorari the petitioner has to show not merely the reversible error committed by the public

The appeal from a final disposition of the Court of Appeals is a petition for review under Rule 45 and not a special civil action under Rule 65 of the Rules of Court, now Rule 45 and Rule 65, respectively, of the 1997 Rules of Civil Procedure. Rule 45 is clear that decisions, final orders or resolutions of the Court of Appeals in any case, regardless of the nature of the action or proceeding involved, may be appealed to the Supreme Court by filing a petition for review, which would be but a continuation of the appellate process over the original case. Under Rule 45, the reglementary period to appeal is fifteen (15) days from notice of judgment or denial of motion for reconsideration.(San Miguel Corporation vs. Court of AppealsFormer Thirteenth Division, et. al., G.R. No. 146775, 01/30/2002) Rule 46 should be construed in relation to Rule 65 without tendering any of its provisions useless. This is evident in Section 6 of Rule 65 which provides that in petitions for certiorari before the Supreme Court and the Court of Appeals, the provision of Section 2, Rule 56, shall be observed.

Correction may be obtained only by appeal from the final decision. (Metropolitan Manila Development Authority vs. Jancom Environmental Corporation, et. al., G.R. No. 147465, 01/20/2002)

The sixty-day period shall be reckoned from the receipt of the resolution denying the motion for reconsideration. This amendment contained in AM No. 00-2-03-SC, was deemed applicable even if a petition had been filed before September 1, 2000, on the ground that rules regulating procedures should be made applicable to actions pending and undetermined at the time of their passage. (Universal Robina Corporation, et. al. vs. Court of Appeals, et. al., G.R. No. 144978, 01/15/2002) A prior motion for reconsideration is not indispensable for commencement of certiorari proceedings if the errors sought to be corrected in such proceedings had been duly heard and passed upon or were similar to the issues already resolved by the tribunal or agency below. Accordingly, the Court has excused the non-filing of a motion for reconsideration when such a motion would be basically pro-forma in nature and content, and where the questions raised are essentially legal in nature. (Candido, et. al. vs. Camacho, et. al., G.R. No. 136751, 01/15/2002) Under Rule 65 before the Rules of Court was amended in 1997, a petition for certiorari might be filed within a reasonable time from receipt of the resolution denying the motion for reconsideration. The reckoning date in counting the period of filing the petition is the receipt of notice of the denial of the motion for reconsideration. The reckoning date was neither the date when the order became final nor the date of the receipt of notice of the entry of judgment of such order. (Yu vs. People, G.R. No. 131106, 12/01/2002) In an appeal via certiorari, the Supreme Court may not review the factual findings of the Court of Appeals. When supported by substantial evidence, the findings of fact of the Court of Appeals are conclusive and binding on the parties and are not reviewable by

This simply means that the following rules which are of primary governance in the Court of Appeals, viz: Rule 46 (Original Actions in the Court of Appeals), Rule 48 (Preliminary Conference), Rule 49 (hearings on Oral Argument), Rule 51 (Judgment), and Rule 62 (Motion For Reconsideration) have been expressly made applicable to original actions in the Supreme Court save for those portions which deal strictly with and are specifically intended for appealed cases in the Court of Appeals. In fine, Rule 46 primarily governs original actions for certiorari filed in the Court of Appeals but Rule 65 generally serves to supplement the same. Rules 46 and 65 co-exist with each other and should be construed so as to give effect to every provision of both rules. (Republic vs. Carmel Development, Inc., G.R. No. 142572, 02/20/2002)

If the Court has jurisdiction over the subject matter and of the person, its rulings upon all questions involved are within its jurisdiction, however irregular or erroneous these may be, they cannot be corrected by certiorari.

this Court, unless the case falls under any of the recognized exceptions to the rule. (Blancia vs. Vda. De Calauor, G.R. No. 138251, 01/29/2002)

It is not required under Section 1 of Rule 65 of the Rules of Court that the trial judge himself be impleaded in a petition for certiorari. (Molina, et. al. vs. Court of Appeals, et. al., G.R. No. 143156, 01/13/2003) The filing of a motion for reconsideration before availing of the remedy of certiorari is not always sine qua non such as when the issue raised is one purely of law, or where the error is patent or the questions raised on certiorari are exactly the same as those already squarely presented to and passed upon by the court a quo. (Chas Realty and Development Corporation vs. Talavera, G.R. No. 151925, 02/06/2003) There are instances where the extraordinary remedy of certiorari may be resorted to despite the availability of an appeal. In Ruiz, Jr. vs. Court of Appeals, the Court cited several instances, such as, when public welfare and the advancement of public policy dictate, or when the broader interest of justice so require, or when the writs issued are null, or when the questioned order amounts to an oppressive exercise of judicial authority. (Metropolitan Manila Development Authority vs. Jancom Environmental Corporation, et. al., G.R. No. 147465, 01/30/2002) The distinctions between Rule 45 and 65 are far and wise, the most notable of which is that errors of jurisdiction are best reviewed in a special civil action for certiorari under Rule 65, while errors of judgment are correctible only by appeal in a petition for review under Rule 45. The rationale for the distinction is simple. When a court exercises its jurisdiction an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. This cannot be

allowed. The administration of justice would not countenance such a rule. Thus, an error of judgment that the court may commit in the exercise of its jurisdiction is not correctible through the original special civil action for certiorari. Appeal from a final disposition of the Court of Appeals is by was of a petition for review under Rule 45. (Riviera Filipina, Inc. Vs. Court of Appeals, et. al, G.R. No. 117355, 04/05/2002) CERTIORARI; Failure to implead the lower court

Under Section 4(a) of Rule 45 of the Rules of Court, it is no longer required to implead the lower courts of judges either as petitioners or respondents. Under Section 3, however, the lower tribunal should still be furnished a copy of the petition. (Bernabe vs. Alejo, G.R. No. 140500, 01/21/2002)

MANDAMUS

Mandamus lies to compel the performance, when refused, of a ministerial duty; but not to compel the performance of a discretionary duty. Mandamus will not issue to control or review the exercise of discretion of a public officer where the law imposes upon said public officer the right and duty to exercise his judgment in reference to any matter in which he is required to act. It is his judgment that is to be exercised and not that of the court. (Nilo Paloma vs. Danilo Mora, G.R. No. 157783, September 23, 2005) Mandamus is the proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, most especially when mandated by the constitution. To reiterate the right of the accused to the speedy disposition of a case is a right guaranteed under the fundamental law. Correlatively, it is the bounded duty of a court, as mandated by the Constitution to speedily dispose of a case before it. Thus, a party to a case may demand, as a matter mandated by the Constitution, expeditious action from all officials who are tasked with the administration of justice.

Ideally, a petition for Mandamus lies to compel the performance of a ministerial but not of a discretionary duty. More specifically, persons or public officials may be directed to act with or to exercise discretion, but not as to how that discretion should be exercised. Thus, it has been held that in a case where there is “gross abuse of discretion, manifest injustice or palpable excess of authority,” the writ may be issued to control precisely the exercise of such discretion. If the public prosecutor commits a nonfeasance in refusing to perform a specific duty imposed on him by law, he can be compelled by an action for mandamus. (Merciales vs. Court of Appeals, et. al., G.R. No. 124171, 03/18/2002)

Petitioner maintains that the decision of the RTC in the special civil action for prohibition can never attain finality because the said case was merely an adjunct to the ejectment suit in the MTC and has no independent existence apart from the ejectment suit. It argues that to hold otherwise would result in an unjust and absurd situation whereby the prevailing party on the merits in the main case will forever be barred, by the simple expedient of the other party’s obtaining an incidental writ of prohibition, from executing the judgment in the core of the case favorable to it and from enforcing a right and demandable obligation from the losing party.

A writ of mandamus is proper to compel the issuance of a writ of execution. In such a case, the person to whom the writ is addressed has no option but to obey the writ. Refusal to obey it is clearly a violation of the order of, and a manifest disrespect towards, a court of superior jurisdiction. (Lumapas vs. Tamin, 389 Phil. 730). However, for a writ of mandamus to be issued, it is essential that petitioner should have a clear legal right to the thing demanded and it must be the imperative duty of the respondent to perform the act required. (Philippine Coconut Authority vs. Primex Coco Products, G.R. No. 163088, July 20, 2006)

PROHIBITION

A special civil action of prohibition is an original and independent action and not merely a continuation or a part of the trial resulting in the rendition of the judgment or order complained of. Neither is such an action ancilliary or substitute to the action which the supervisory authority of the appellate court is sought and directed. It bears stressing that an action for prohibition or certiorari, for that matter, does not divest the inferior or trial court of its jurisdiction validly acquired over the case pending before it; it is merely an invocation for the exercise of its supervisory power over the lower court to insure that the lower court acts within its jurisdiction. (Mayon Estate Corp. vs. Marietta Altura, G.R. No. 134462, October 18, 2004)

We do not agree. A special civil action of prohibition is an original and independent action and not merely a continuation or part of the trial resulting in the rendition of the judgment or order complained of. Neither is such an action ancillary or substitute to the action against which the supervisory authority of the appellate court is sought and directed . It bears stressing that an action for prohibition or certiorari, for that matter, does not divest the inferior or trial court of its jurisdiction validly acquired over the case pending before it; it is merely an invocation for the exercise of its supervisory power over the lower court to insure that the lower court acts within its jurisdiction. If the lower court errs in the exercise of its jurisdiction, the remedy of the aggrieved party is to appeal in due course from an adverse judgment of the trial court absent grave abuse of its discretion amounting to excess or lack of jurisdiction. (Mayon Estate Corporation vs. Altura G.R.No. 134462 Oct. 18, 2004) • The issue being raised by petitioner in her motion is that she and her counsel were not duly notified of the pre-trial on July 30, 1998. But the trial court did not resolve this issue and denied outright petitioner’s motion.

Had the trial court set the motion for hearing and gave petitioner a chance to prove her allegation, it could have determine whether she was indeed notified or not of the pre-trial. Then the trial court could have resolved whether or not to reconsider the Judgment by default. Verily, by denying petitioners motion for reconsideration n the wrong ground that it is pro forma and by

declaring her as in default and allowing respondent to present his evidence exparte, the trial court deprived [etitioner of her right to due process, i.e., the fundamental rule that a person be accorded an opportunity to be heard. To allow a trial court to proceed against petitioner wh could not present her defenses apparently for lack of notice,is a denial of her right to beheard, our basic understanding of due process. (Tan vs. Dumarpa, G.R. No. 138777, Sept. 22, 2004) EXPROPRIATION; Just compensation

into consideration. Section 4 Rule 67 of the 1997 Rules of Civil Procedure provides that just compensation is to be determined as of the date of the taking or the filing of the complaint whichever came first. (Republic vs. Ker and Company Limited, G.R. No. 136171, 07/02/2002) • Republic Act No. 8974 (Rep. Act No. 8974), otherwise known as “An Act to Facilitate the Acquisition of Right-of-Way, Site or Location for National Government Infrastructure Projects and For Other Purposes” and its Implementing Rules and Regulations (Implementing Rules) had amended Rule 67 in many respects.

The constitutional limitation of “just compensation” is considered to be the sum equivalent to the market value of the property, broadly described to the price fixed by the seller in open market in the usual and ordinary course of legal action and competition or the fair value of the property as between one who receives, and one who desires to sell, it fixed at the time of the actual taking by the government. Thus, if property is taken for public use before the compensation is actually paid or deposited with the court. In fine, between the taking of the property and the actual payment, legal interests accrue in order to place the owner in a position as good as (but not better than) the position he was in before the taking occurred. (Republic vs. Court of Appeals, et. al., G.R. No. 146587, 07/02/2002) The Court has declared in Manotok vs. National Housing Authority that the statements made in tax documents by the assessor may serve as one of the factors to be considered by they cannot exclude or prevail over a court determination after expert commissioners have examined the property and all pertinent circumstances are taken into account and after all the parties have had the opportunity to fully plead their cases before a competent and unbiased tribunal. (Republic vs. Ker and Company Limited, G.R. No. 136171, 07/02/2002) In computing just compensation for expropriation proceedings, it is the value of the land at the time of the taking or at the time of the filing of the complainant and not at the time of the rendition of the judgment which should be taken

There are at least two crucial differences between the respective procedures under Rep. Act No. 8974 and Rule 67. Under the statute, the Government is required to make immediate payment to the property owner upon the filing of the complaint to be entitled to a writ of possession, whereas in Rule 67, the Government is required only to make an initial deposit with an authorized government depositary. Moreover, Rule 67 prescribes that the initial deposit be equivalent to the assessed value of the property for purposes of taxation, unlike Rep. Act No. 8974 which provides, as the relevant standard for initial compensation, the market value of the property as stated in the tax declaration or the current relevant zonal valuation of the Bureau of Internal Revenue (BIR), whichever is higher, and the value of the improvements and/or structures using the replacement cost method. Rep. Act No. 8974, which provides for a procedure eminently more favorable to the property owner than Rule 67, inescapably applies in instances when the national government expropriates property “for national government infrastructure projects. Thus, if expropriation is engaged in by the national government for purposes other than national infrastructure projects, the assessed value standard and the deposit mode prescribed in Rule 67 continues to apply. (Republic vs. Gingoyon, G.R. No. 166429, December 19, 2006) CONTEMPT OF COURT • There is no question that disobedience or resistance to a lawful writ, process, order, judgment or command of a court or

injunction granted by a court or judge constitutes indirect contempt. Section 3 of Rule 71 of the Revised Rules of Court provides for the mode of commencing proceedings for indirect contempt. Nazareno vs. Barnes interpreted a “written charge” to mean that either: (1) an order requiring the person to be charged with contempt to show why he should not be punished for contempt by way of a special civil action under Rule 71 be initiated in order for contempt proceedings to prosper: Strict compliance with the aforecited guidelines is mandatory considering that proceedings against a person alleged to be guilty of contempt, as in this case are commonly treated as criminal in nature. (Torcende vs. Sardido, A.M. No. MTJ-99-1238, 01/24/2003)

It must be remembered that the power to punish for contempt is inherent in all courts so as to preserve order in judicial proceedings as well as to uphold the administration of justice. The court must exercise the power of contempt for purposes that are impersonal because that power is not intended as a safeguard for the judges but for the functions they exercise. Thus, judges have time and again been enjoined to exercise their contempt power judiciously, sparingly, with utmost restraint and with the end in view of utilizing the same for correction and preservation of the dignity of the court, not for retaliation or vindication. (Torcende vs. Sardido, A.M. No. MTJ-99-1238, 01/24/2003)

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