RULE 8

MANNER OF MAKING ALLEGATIONS IN PLEADINGS

Section 1. In general. — Every pleading shall contain in a methodical and logical form, a
plain, concise and direct statement of the ultimate facts, including the evidence on which the
party pleading relies for his or her claim or defense, as the case may be.

If a cause of action or defense relied on is based on law, the pertinent provisions thereof and
their applicability to him or her shall be clearly and concisely stated. (1a)

NOTES:

As stated in the rule, you must only state the ultimate facts in drafting a pleading – in the complaint,
answer, reply or rejoinder, etc. But what is an ultimate fact?

Ultimate facts are those which are essential to a one’s cause of action or defense. The fact is essential if
your cause of action or defense would not be complete if you omit the same.

You already know the elements of a cause of action -- 1.) right pertaining to the plaintiff; 2.) obligation on
the part of the defendant; 3.) violation by defendant of plaintiff’s right; and 4.) injury cause to the plaintiff.
So, if, for example, you omit a statement pertaining to the violation supposedly committed by the
defendant, then your complaint, if you are the complainant, is, therefore, incomplete or insufficient.

Example:

You are drafting a complaint for collection of an unpaid loan. You already stated in the
complaint that you granted money to the defendant by way of loan, and that the latter
already received the money. So, by alleging, you already established that you have the
right to be paid and that the defendant has the correlative obligation to pay what he
borrowed from you. But, if by sheer inadvertence, you failed to state in your complaint
that the obligation had already matured and that you already made a demand for
payment, in that you just stated therein that the defendant owed you money, then your
complaint obviously failed to make out a cause of action.

So, you should not, therefore, omit to state in your complaint that the obligation already
fell due, and for which you demand a demand, so as to complete the statement of your
cause of action. That is an ultimate fact.

The rule, as it is now amended, provides that you have to state in your pleading the ultimate facts,
including the evidence on which the party-pleader relies for his claim or defense. This amendment is
precisely introduced in order be consistent with Section 7, Rule 8 of the Amended Rules, which provides:

Section 7. Action or defense based on document. - Whenever an action or defense is

based upon a written instrument or document, the substance of such instrument or
document shall be set forth in the pleading, and the original or a copy thereof shall be
attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading.
Under the 1997 Rules of Civil Procedure, the pleading shall only state the ultimate facts constituting the
claim or defense, as the case may. Evidentiary facts are not supposed to be stated in the pleading.
Evidentiary facts are the facts which will prove the ultimate facts. They should not be stated in the
pleading. They should be brought out during the trial.

Example:

Action for collection of sum of money. It is enough for the plaintiff to state in the
complaint that defendant obtained a loan of money from him evidenced by the
promissory described in the complaint, with a copy thereof attached to the complaint;
that the obligation fell due; that he made repeated demands for the defendant to pay,
but despite repeated demands he refused to pay.

Said averments of the ultimate facts is enough, more so that plaintiff attached to his
complaint a copy of the promissory note. He does not have to state therein that, on
March 1, 2020, he called up the defendant by phone and demanded payment from him;
that on March 3, 2020 he sent a letter demanding payment from the defendant; that he
again sent demand letters to the defendant on March 5, 10, and 15, all of 2020.
Likewise, he does not have to state therein that it was him who personally went to the
post office to send the letters via registered mail on the given dates; how he got there;
and who went with him in going there, if any. Those are but evidentiary facts and should
not, thus, be stated in full details in the complaint. In fact, under the 1997 Rules of Civil
Procedure, such demand letters – being in the nature of evidentiary facts – need not
even be specifically stated in the complaint and that copies of which need not be
attached to the complaint.

Be it noted, however, that while Section 1, Rule 8 of the Amended Rules mentions about this requirement
to just state the ultimate facts in the pleading, it now explicitly directs that the allegations in the pleading
must include the evidence on which the party-pleader relies for his claim or defense. More than that,
there is now a new provision under Section 6, Rule 7 of the Amended Rules which essentially requires
that any and all evidence -- documentary evidence, object evidence, and even testimonial evidence –
should now be stated in the pleading. It provides:

“Section 6. Contents. — Every pleading stating a party’s claims or defenses shall, in

addition to those mandated by Section 2, Rule 7, state the following:

(a) Names of witnesses who will be presented to prove a party’s claim or defense;

(b) Summary of the witnesses’ intended testimonies, provided that the judicial
affidavits of said witnesses shall be attached to the pleading and form an integral
part thereof. Only witnesses whose judicial affidavits are attached to the pleading shall
be presented by the parties during trial. Except if a party presents meritorious reasons as
basis for the admission of additional witnesses, no other witness or affidavit shall be
heard or admitted by the court; and

(c) Documentary and object evidence in support of the allegations contained in the
pleading.”

So, the poser is this: Are evidentiary facts now required to be stated in the pleading?
The answer seems to be in the affirmative. Nevertheless, it is opined that while evidentiary facts may
now be stated in the pleading, we should still be guided by the “ultimate facts” rule, in that such
averment must be done in such manner that the pleader would not go into full, specific, and the minutest
details – to the point that his pleading will be very long and voluminous.

So, in the immediately preceding scenario, and applying the Amended Rules, the pleader may, perhaps,
do well by stating, in essence, that “the defendant obtained a loan of money from him evidenced by the
promissory described in the complaint, with a copy thereof attached to the complaint; that the obligation
fell due; that he made repeated demands for the defendant to pay, evidenced by the demand letters dated
March 3, 5, 10, and 15, all of 2020, but despite repeated demands he refused to pay.” But, just the same,
in the complaint, the complainant does not have to specify in full details that it was him who personally
went to the post office to send the letters via registered mail on the given dates; how he got there; and
who went with him in going there, if any, etc.

Section 1, Rule 8 of the Amended Rules likewise provides that that the statement of ultimate facts must
be stated in a methodical and logical form and you must use plain, concise and direct statements or
language. The simpler the language, the better. You write to express, and not necessarily to impress.
Refrain from using idiomatic expressions.

Be it also noted that the rules now provide that if a cause of action or defense relied on is based on law,
the pertinent provisions thereof and their applicability to him or her shall be clearly and concisely stated.
So, you are now permitted to cite in your pleading the law on which your cause of action or defense is
based, but, more that, you should state in your pleading why such law is applicable in your case.

Example:

Your property was taken by the state for public purpose, sans payment of just
compensation. So, you filed a case for payment of just compensation. You are permitted
to cite in your pleading Section 9, Article III of the 1987 Philippine Constitution, which
provides: “Private property shall not be taken for public use without just compensation.”
Then, you should discuss why the law is applicable in your case.

But while the rules allow the pleader to cite in his pleading the law on which his cause of action or
defense is based, he is not, however, permitted to cite mere conclusions of facts or law.

Verily, the statement in the pleading that the defendant acted “willfully, maliciously, unlawfully and
arbitrary manner” is considered a mere conclusion of law, unless the same is supported by facts aptly set
forth in the pleading and supported by evidence attached thereto (De Dios v. Bristol Laboratories, 55
SCRA 349).

The pleader is not also required to state matters presumed by law, or those which are in the domain of
judicial notice.

Example:

In action of breach of contract of carriage, the complainant need not state in the
pleading that the driver acted negligently, and failure to make such allegation in the
complaint is not fatal, for the simple reason that, under the Civil Code, whenever there
is a breach of contract of carriage, there is a presumption of negligence on the part of
carrier. It is not for the passenger to prove that the common carrier is negligent.
 It is for the common carrier to prove that it is not negligent. After all, Art. 1756 of the
Civil Code provides: “In case of death of or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they prove that they
observed extraordinary diligence as prescribed in Articles 1733 and 1755.”

In like manner, in a pleading, the pleader need not state that the month of April consists
of just 30 days, as the court can simply take judicial notice of this fact.

Section 2. Alternative causes of action or defenses. — A party may set forth two or more
statements of a claim or defense alternatively or hypothetically, either in one cause of action
or defense or in separate causes of action or defenses. When two or more statements are
made in the alternative and one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or more of the alternative
statements. (2)

NOTES:

We already discussed this provision, albeit partially, when we discussed the following:

1.) Rule 2, Section 5 – where a party may, in one pleading state in the alternative or otherwise, as
many causes of action;
2.) Rule 3, Section 6 – on permissive joinder of parties; and
3.) Rule 3, Section 13 – on alternative defendants.

Emphasis should be made of the fact that the rules allow a party to set forth in one pleading two or more
statements of a claim or defense alternatively or hypothetically, even if the same be inconsistent, and that
where two or more statements are made in the alternative and one of these statements is sufficient, then
the pleading is already deemed sufficient, even if the other statement or statements are insufficient.

Example:

You are the registered owner of a certain parcel of land. Somebody entered your property
without asking permission from you, but you did not also interpose any objection during the time
that he physically entered your property. After 3 months from the time that person entered your
property, you finally decided to drive him out, so you sent him a letter, demanding that he vacate
your property. That person simply ignored your demand letter. You referred the matter to the
Office of the Barangay Chairman, supposedly for mediation, but he did not show up. So, you
want to file a case for ejectment. But you are at quandary whether the case is one for forcible
entry or one for unlawful detainer.

To remedy the situation, you can make alternative or hypothetical statements in your complaint.

You may state therein that “(i) The person entered your property and deprived you possession
thereof by strategy or stealth” – purportedly to establish a case for forcible entry. In the
alternative you can also state that “(ii) Assuming arguendo that you had tolerated his entry into,
and occupancy thereof, by your passivity or inaction, such possession becomes nonetheless illegal
when you served upon him a letter demanding that he vacate the property, thereby making such
‘tolerated possession’ illegal” – purportedly to establish a case for unlawful detainer.
 If your first statement is found to be insufficient to make out a case for forcible entry, your
complaint remains valid for as long as the other statement – pertaining to the case for unlawful
detainer -- is found to be sufficient.

The landmark case of La Mallorca vs. Court of Appeals, 17 SCRA 739, is illustrative of this rule, thus:

FACTS:

Mariano Beltran, his wife, and their 3 minor daughters boarded he Pambusco bus
owned by La Mallorca. When they reached their point of destination, they all
disembarked from the bus, but the father went back to the bus to get his bayong which
he had left behind. Unknown to him, his second minor daughter followed him. While
said Mariano Beltran was on the running board of the bus waiting for the conductor to
hand him his bayong which he left under one of its seats near the door, the bus, whose
motor was not shut off while unloading, suddenly started moving forward, evidently to
resume its trip, notwithstanding the fact that the conductor has not given the driver the
customary signal to start, since said conductor was still attending to the baggage left
behind by Mariano Beltran. Incidentally, when the bus was again placed into a complete
stop, it had travelled about ten meters from the point where the plaintiffs had gotten
off. Sensing that the bus was again in motion, Mariano Beltran immediately jumped
from the running board without getting his bayong. He landed on the side of the road
almost in front of the shaded place where he left his wife and children. At that precise
time, he saw people beginning to gather around the body of a child lying prostrate on
the ground, her skull crushed, and without life. The child was none other than his
daughter Raquel, who was run over by the bus in which she rode earlier together with
her parents. So, sps. Beltran filed a case for damages. The trial court found defendant
La Mallorca liable for breach of contract of carriage. On appeal to the Court of Appeals,
La Mallorca claimed that there could not be a breach of contract in the case, for the
reason that when the child met her death, she was no longer a passenger of the bus
involved in the incident and, therefore, the contract of carriage had already terminated.
Although the Court of Appeals sustained this theory, it nevertheless found the
defendant-appellant guilty of quasi-delict and held the latter liable for damages, for the
negligence of its driver, in accordance with Article 2180 of the Civil Code. On appeal to
the Supreme Court, La Mallorca contended that the Court of Appeals erred in holding it
liable for quasi-delict considering that respondents’ complaint was for breach of
contract.

HELD:

The inclusion in the complaint of averment for quasi-delict, while incompatible with the
other claim under the contract of carriage, is permissible under Section 2 of Rule 8 of
the New Rules of Court, which allows a plaintiff to allege causes of action in the
alternative, be they compatible with each other or not, to the end that the real matter in
controversy may be resolved and determined.
The same approach or legal recourse may also be resorted to by the defendant.

Example:

You are being sued for collection of an alleged monetary loan. But you had not signed any
contract of loan or, perhaps, a promissory note.

In defending the suit, you may argue that “(i) The action is unfounded because the money was
given to you by way of a gift or donation” and that “(ii) Even assuming, ex gratia argumenti, that
plaintiff gave the money to you by way of loan, the filing of the action had long prescribed.”

NOTE:

During the trial, however, you have to make up your mind on which defense to pursue. But
perhaps, by then, you can already make an informed decision because you already know the
evidence of the plaintiff.

But it is advisable to put forth said defenses, albeit conflicting, knowing full well that under
Section 1, Rule 9, defenses and objections not pleaded in the answer are deemed waived, subject
to some exceptions mentioned therein.

Section 3. Conditions precedent. — In any pleading, a general averment of the performance

or occurrence of all conditions precedent shall be sufficient.

NOTES:

To digress a bit, when we discussed about cause of action, we mentioned that it is not enough that one
has a cause of action before filing a case, in that it is equally required that he should have a right of action.

Parenthetically, right of action, more than the existence of a cause of action, requires the performance of
the conditions precedent, if any.

In some instances, there are things that are required to be done before one may institute a legal action,
such as:

1. Tender of payment is required before making a consignation (Art. 1256 of the Civil Code);

2. Prior resort to barangay conciliation proceedings in certain cases (Chapter 7, Title I, Book III of
the Local Government Code of 1991);

3. Earnest efforts toward a compromise must be undertaken when the suit is between members of
the same family and if no efforts were in fact made, the case must be dismissed (Article 151 of
the Family Code);
 4. Exhaustion of administrative remedies before resorting to judicial action (Lopez v. City of Manila,
303 SCRA 448);

5. Arbitration proceedings, especially when the contract between the parties provides for such
mechanism before recourse to judicial action.

Under Section 3, Rule 8 of the Amended Rules, it is enough to just make a general averment anent the
performance or occurrence of the conditions precedent. It is not required that the same should be stated
in full detail. You need not state in details of how you complied with any such condition precedent.

Example:

You wanted to oust a person who is occupying your property. As you reside in the same
locality, you first referred the matter to the Office of the Barangay Chairman, then to the
Lupong Tagapmayapa for conciliation-mediation, but such efforts failed.

In filing the case in court, you need not state in your complaint that “on the 2nd day of
February 2020, you lodged a formal complaint before the Office of Barangay Chairman;
that on the 3rd day of February 2020, defendant was served with summons directing him
to appear before the Brgy. Chairman, … xxx”. You only need to state that the matter had
been referred first to the Office of the Barangay Chairman/Lupong Tagapamayapa for
conciliation and mediation, but such efforts failed, leading to the issuance of a
Certification to File Action.

Section 4. Capacity. — Facts showing the capacity of a party to sue or be sued or the
authority of a party to sue or be sued in a representative capacity or the legal existence of
an organized association of persons that is made a party, must be averred. A party desiring
to raise an issue as to the legal existence of any party or the capacity of any party to sue or
be sued in a representative capacity, shall do so by specific denial, which shall include such
supporting particulars as are peculiarly within the pleader’s knowledge. (4)

NOTES:

The legal capacity of the party-disputants to sue or be sued be averred.

That explains why the first few paragraphs in a complaint would put forth the personal circumstances of
the party disputants, viz:

1. Plaintiff Otaner M. Noelag is a Filipino, of legal age, and resident of BR 119 Purple
Duke Street, Briza Subdivision, Nangka, Consolacion, Cebu. For facility and
convenience, plaintiff may be served with the notices and processes of this Honorable
Court through his counsel, at the address hereinafter given.

2. Defendant RMG Corporation is a domestic corporation, duly organized and existing

under Philippine laws, with principal place of business at M.L. Quezon Highway,
Maribago, Lapu-Lapu City, at which it may be served with summons and other processes
of this Honorable Court. Defendant is primarily engaged in hotel and resort business, as
it, in fact, owns and operates the Imperial Palace Waterpark Resort and Spa, located at
M.L. Quezon Highway, Maribago, Lapu-Lapu City.
It may be observed that, in the above example, it is specifically mentioned, among others, that plaintiff is
of legal age. This is because his legal capacity cannot just be presumed.

In like manner, the legal capacity of the defendant – as a domestic corporation duly organized under
Philippine laws – is specifically averred, as it cannot just be presumed that it is really a corporation.

If one is filing a case in his representative capacity, then his legal capacity to bring the action on behalf,
and for the benefit, of his named principal and his capacity to sign the pleading must be averred with
particularity. If one is filing a case as the attorney-in-fact of a disclosed principal, then he must specifically
mention that in the complaint; in fact, he must attach to the complaint a copy of the pertinent special
power of attorney, appointing him as such, conformably with Sections 4 & 5, Rule 7 of the Amended
Rules.

If, in the above, illustration, the defendant corporation would dispute plaintiff’s legal capacity to sue, then
it shall do so by making a specific denial in its answer and even raise that by way of affirmative defense,
and it shall include therein such supporting particulars as are peculiarly within the defendant’s knowledge
– e.g. by attaching to its pleading a copy of plaintiff’s alleged Birth Certificate showing that he is not yet of
legal age.

Section 5. Fraud, mistake, condition of the mind. — In all averments of fraud or mistake,
the circumstances constituting fraud or mistake must be stated with particularity. Malice,
intent, knowledge, or other condition of the mind of a person may be averred generally. (5)

NOTES:

Fraud or mistake must be averred with particularity.

Example:

You are duped into buying a fake gold bar. So, you are filing a case against the seller,
asking for rescission of the contract of sale and the reimbursement for what you paid for
and as purchase price. In your complaint, you cannot just casually allege that “Plaintiff
was duped or defrauded by the defendant into buying gold bar.” That allegation is not
sufficient.

You should rather state concisely, clearly, and methodologically how the fraud took
place. You may do well by, perhaps, stating that “On 01 April 2020, defendant went to
plaintiff’s house and introduced himself as the CEO of RMG Mining Corporation; that
defendant presented to the plaintiff an identification card purportedly showing that he,
the defendant, is the CEO RMG Mining Corporation; that, there and then, the defendant
presented to the plaintiff an alleged 24 karat gold bar, weighing 500 grams, and offered
the same for sale to the plaintiff for a measly sum of P500,000.00; that the defendant
represented and warranted to the plaintiff that it was a genuine and authentic 24 karat
gold bar; the defendant even presented to the plaintiff a supposed certification from the
Central Bank of the Philippines showing that it was pure gold; and that faithfully relying
on defendant’s representation and warranties, plaintiff bought the supposed gold bar
for a discounted price of P450,000.00; that plaintiff was horrified to learn later that the
alleged gold bar is fake, as it is but made of nickel, when plaintiff had it tested by, as he
wanted to pawn it at, ML pawnshop ….xxx,”
But malice, intent, knowledge, or other condition of the mind of a person may be just averred generally.
The reason for this is plain and obvious: It is difficult to fathom what is in the other person’s mind. So, you
are permitted to state in your pleading that “defendant acted with malice aforethought when he offered
the supposed gold bar for sale to the plaintiff.”

Section 6. Judgment. — In pleading a judgment or decision of a domestic or foreign court,

judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the
judgment or decision without setting forth matter showing jurisdiction to render it. An
authenticated copy of the judgment or decision shall be attached to the pleading. (6a)

NOTES:

Suppose you are the defendant in a case. But you sought for the dismissal of the present case on the
ground of res judicata.

In doing so, you may do well by presenting to the court an authenticated copy of the previous judgment
You are no longer required to establish that the court which rendered such previous jurisdiction had
validly acquired jurisdiction over the subject matter in that previous case and over the party-disputants
therein. The rules presume that the judgment is valid. But what you should present before the court
hearing the present case is an authenticated copy of such prior judgment or decision, and it should be
attached to your motion to dismiss or answer, as the case may be. A plain photocopy would not suffice.

Section 7. Action or defense based on document. - Whenever an action or defense is based

upon a written instrument or document, the substance of such instrument or document
shall be set forth in the pleading, and the original or a copy thereof shall be attached to the
pleading as an exhibit, which shall be deemed to be a part of the pleading. (7a)

NOTES:

Section 7, Rule 8 of the Amended Rules mentions of an actionable document. But what is an actionable
document?

An actionable document is one which is the basis or the foundation of the cause of action or defense and
not merely an evidence of the cause of action or defense (Araneta, Inc. vs. Lyric Film Exchange, 58 Phil.
736). It is the very heart and soul of your cause of action or defense, not merely an evidence thereof.

Verily, in an action for collection of sum of money based on a promissory note, such promissory note is
not just an evidence of the plaintiff’s cause of action but is it is the very cause of action or foundation of
his cause of action. As for the defendant in that action, the receipt, if any, is not only evidence of his
defense but is the very foundation of his defense. If it happens that plaintiff previously sent demand
letters to the defendant, such demand letters, while relevant and important in the case, are not
considered actionable documents.
The distinction between an actionable document and a non-actionable document assumes paramount
importance 1997 Rules of Civil Procedure, in that, for one, if the document is an actionable document --
like the promissory note and the receipt in the above scenario -- then it can be pleaded in the manner
prescribed under the previous Section 7, Rule 8 of the 1997 Rules of Civil Procedure, which provides for
two (2) alternative ways, viz:

1) The substance of such instrument or document shall be set forth in the pleading, and
the original or a copy thereof shall be attached to the pleading as an exhibit, which shall
be deemed to be a part of the pleading, or

2) Said copy may with like effect be set forth in the pleading

Under the 1997 Rules of Civil Procedure, one is permitted NOT to attach an actionable document to his
pleading, for as long a copy of said actionable document is set forth in the pleading. This could be done by
simply quoting the instrument verbatim. In so doing, the pleader may just state, among others, that:

“4) The defendant issued to the plaintiff a promissory note, viz:

`01 February 2019

For value received, I promise to pay Otaner Noelag or order the sum of
Php500,000.00, Philippine currency, on or before 01 March 2019.

Sgd: Waldimar Bigotilyo’

Bear in mind, however, that the foregoing manner of pleading an actionable document is no longer
allowed under the Amended Rules. It is interesting to note that under Section 7, Rule 8 of the Amended
Rules, the alternative way of pleading an actionable document as, thus, provided under paragraph (2) of
the previous Section 7, Rule 8 of the 1997 Rules of Civil Procedure has already been deleted.

As it is now, and under Section 7, Rule 8 of the Amended Rules, the only permissible way to plead and
actionable document is to set forth the substance of such instrument or document in the pleading, and
the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to
be a part of the pleading. This is done by stating in the complaint that …

1. Plaintiff Otaner Noelag is Filipino, of legal age, xxx of legal age xxx;

2. Defendant Waldimar Bigotilyo is likewise Filipino, of legal age, xxxxxxx;

3. Sometime on 01 February 2019, defendant Waldimar Bigotilyo secured a loan

from plaintiff Otaner Noelag for the sum of Php500,000.00, Philippine currency,
payable not later 01 March 2019. Copy of the said Promissory Note hereto
attached as Annex “A”, forming integral part hereof;
 4. The account is now overdue, and defendant Waldimar Bigotilyo failed and still
fails to pay the same unto and in favor of Plaintiff Otaner Noelag, despite the
demand letter sent by plaintiff to the defendant under date of 02 March 2019;

NOTE:

As can be observed, the main features of the promissory note are recited in the pleading
– the date of the instrument, the amount, the maturity date. Even then, and as required
in the rules, plaintiff still has to attach a copy of the promissory note, either the
original or plain photocopy thereof, to the complaint.

Simply put, while the manner of pleading an actionable document varies under the 1997 Rules of Civil
Procedure vis-a-viz the Amended Rules, the fact remains that AN ACTIONABLE DOCUMENT has to be
attached to the pleading. The only difference is the manner of pleading such actionable document.

But what is the rule with respect to non-actionable documents, like the demand letter dated 02 March
2019 in the given example? Does it have to be attached to the complaint also?

Under the 1997 Rules of Civil Procedure, the demand letter – being in the nature of an evidentiary fact
and is not an actionable document – need not be attached to the pleading or complaint.

But how about under the Amended Rules? To answer this question, let us revisit Section 6, Rule 7 of the
Amended Rules. It provides:

“Section 6. Contents. — Every pleading stating a party’s claims or defenses shall, in

addition to those mandated by Section 2, Rule 7, state the following:

(a) Names of witnesses who will be presented to prove a party’s claim or defense;

(b) Summary of the witnesses’ intended testimonies, provided that the judicial
affidavits of said witnesses shall be attached to the pleading and form an integral part
thereof. Only witnesses whose judicial affidavits are attached to the pleading shall be
presented by the parties during trial. Except if a party presents meritorious reasons as
basis for the admission of additional witnesses, no other witness or affidavit shall be
heard or admitted by the court; and

(c) Documentary and object evidence in support of the allegations contained in the
pleading.”

A cursory reading of Section 6, Rule 7 of the Amended Rules reveals that while the judicial
affidavits of the witness are required to be attached to the pleading, the same is not expressly
mentioned or required with respect to the documentary and object evidence – other than an
actionable document, of course. It merely requires that these (other) documentary and object
evidence be STATED in the pleading. Moreover, under Section 1, Rule 8 of the Amended Rules, it
seems to require only that the evidence be stated, when it provides, in part, that the “pleading
shall contain in a methodical and logical form, a plain, concise and direct statement of the
ultimate facts, including the evidence …”.
So, putting Section 6, Rule 7 of the Amended Rules and Section 7, Rule 8 of the Amended
Rules together, it may be argued that while ACTIONABLE DOCUMENT – like the promissory
note, in the given example – should be attached to the pleading or complaint, the OTHER
DOCUMENTARY EVIDENCE (NON-ACTIONABLE DOCUMENT) – like the demand letter in the
above example – need not be attached to the complaint, in that it is enough that it is stated or
averred therein.

As this remains to be clarified by the Supreme Court, the most prudent thing to do is to likewise
attach the demand letter aforesaid to the complaint. There is no harm in doing that. Besides, it
is better to err at the side of caution.

Section 8. How to contest such documents. - When an action or defense is founded upon a
written instrument, or attached to the corresponding pleading as provided in the preceding
section, the genuineness and due execution of the instrument shall be deemed admitted
unless the adverse party, under oath specifically denies them, and sets forth what he or she
claims to be the facts; but the requirement of an oath does not apply when the adverse party
does not appear to be a party to the instrument or when compliance with an order for an
inspection of the original instrument is refused. (8a)

NOTES:

How would you contest an actionable document attached to the pleading?

Section 8, Rule 8 provides us with answer, in that you have to:

1. Specifically deny it;

2. Such specific denial must be under oath; and
3. You should set forth the facts you claim to be true

Scenario:

If an action for collection of sum of money, for example, if the plaintiff attached to the
complaint the promissory note evidencing the loan and defendant wishes to contest the
genuineness and due execution of the promissory note, the defendant must, in his
answer, specifically deny under oath the genuineness and due execution thereof and set
forth what he claims to be the facts. Denial under oath is obtained if the answer has a
jurat, but in current usage, this means that the answer must be verified.

Failing to make such specific denial under oath, then the defendant is deemed to have
admitted the due genuineness and due execution of such actionable document – e.g.
the promissory note.
By “specific denial” is meant that the party complies with the provision of Section 10, Rule 8 of the
Amended Rules, thus:

Section 10. Specific denial. — A defendant must specify each material allegation of fact
the truth of which he or she does not admit and, whenever practicable, shall set forth the
substance of the matters upon which he or she relies to support his or her denial. Where a
defendant desires to deny only a part of an averment, he or she shall specify so much of it
as is true and material and shall deny only the remainder. Where a defendant is without
knowledge or information sufficient to form a belief as to the truth of a material averment
made to the complaint, he or she shall so state, and this shall have the effect of a denial.

By “genuineness” is meant that the document is not spurious, fake, counterfeit, intercalated, or of
different import on its face from the one executed by the party (Bough v. Cantiveros, 40 Phil. 208).

By “due execution” is meant that the document was signed voluntarily and knowingly by the party whose
signature appears thereon; that if signed by somebody else, such representative had the authority to do
so; that it was duly delivered; and that the formalities were complied with (Hibberd v. Rhode, 32 Phil.
476).

So, if, in the above situation, the defendant fails to specifically deny under oath the genuineness of the
promissory, he is deemed to have admitted that:

1. The party whose signature it bears signed it, or that is signature appearing therein is
authentic;

2. If the instrument is signed by another person, that other person is his agent and that
said person really signed for him under his authority;

3. At the time it was signed, the instrument was in the words and figures exactly as set
out in the pleading of the party relying upon it, or that it was not tampered with;

4. The document was delivered; and

5. The formal requisites of the law, if any, (such as, but not limited seal, notarization or
revenue stamp) have been complied with or waived.

Be it noted, however, that even if the party fails to specifically deny an actionable document under
oath, he is not precluded from setting forth the other defenses, such as:

1. Fraud;
2. Mistake;
3. Compromise;
4. Payment;
5. Statute of Limitations;
6. Estoppel;
7. Want of consideration;
8. Minority;
9. Imbecility;
 10. Imperfection in writing, or that the instrument fails to express the true agreement of the
parties; or
11. There is intrinsic ambiguity in the writing
Relevantly, where the due execution and genuineness of an actionable document is not specifically
denied under oath by the defendant, such document must be considered part of the complaint without
need of introducing evidence thereon (City of Cebu v. Court of Appeals, 258 SCRA 175). In other words,
such document need not anymore be formally offered in evidence, as the defendant is deemed to have
admitted the due execution and genuineness thereof.

But what happens if, despite the fact that the defendant fails to specifically deny under oath an actionable
document attached to the complaint, the plaintiff, in the course of the trial, still presented evidence to
prove the genuineness and due execution of such actionable document (which is not anymore required or
necessary given the implied admission by the defendant)? Where that happens, the plaintiff is deemed to
have waived the implied admission by the defendant of the document’s authenticity (Yu Chuck v. Kong
Li Po, 46 Phil 608; Legarda v. Ongsiako, 36 Phil. 186).

Example:

In an action for collection of sum of money, the plaintiff attached to the complaint the
promissory note evidencing the loan. In his answer, defendant, however, failed to
specifically deny under oath the genuineness and due execution thereof and set forth
what he claims to be the facts.

Such being the case, the defendant is deemed to have impliedly admitted the due
genuineness and execution of the promissory note. There is no need on the part of the
plaintiff to prove during the trial that the signature appearing in the promissory note is
that of the defendant. There is even no need on the part of the plaintiff to formally offer
said promissory note after presentation of his evidence in chief.

If, by inadvertence or otherwise, the plaintiff, during the trial, still presented evidence to
prove the authenticity of defendant’s signature on the promissory note, the plaintiff, in
effect, is thereby deemed to have abandoned or waived such implied admission by the
defendant of the document’s authenticity (an admission favorable to the plaintiff), such
that the defendant (despite his earlier implied admission) can now introduce evidence
tending to prove that the signature in the promissory note is not his.

But the ruling in the cases of Yu Chuck v. Kong Li Po, supra, and Legarda v. Ongsiako, supra, is now of
DOUBTFUL VALIDITY of in the light of the subsequent ruling in Bell Carpets Int’l Trading Corp. v. Court of
Appeals, 185 SCRA 35, wherein the Supreme court declared, in essence, that the admission drawn from
the failure to make a denial under oath of the genuineness and due execution of an actionable document
is a JUDICIAL ADMISSION, and as such, is CONCLUSIVE and cannot be contradicted unless shown to have
been made through palpable mistake that no such admission was made, as provided for in Section 4, Rule
129 of the Revised Rules on Evidence.

Take note also that if it is the defendant who attaches an actionable document in his answer – e.g. receipt
evidencing payment of an unpaid loan, in an action for collection of sum of money – the plaintiff, if he
wishes to contest such receipt, should file a verified reply, specifically denying therein the due the
genuineness and the execution of such receipt and setting forth what he claims to the facts, in accordance
with Section 8, Rule 8 of the Amended Rules, and in conjunction with Section 10, Rule 6 of the Amended
Rules, thus:
 Section 10. Reply. — All new matters alleged in the answer are deemed controverted. If
the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such
claims shall be set forth in an amended or supplemental complaint. However, the
plaintiff may file a reply only if the defending party attaches an actionable
document to his or her answer.

A reply is a pleading, the office or function of which is to deny, or allege facts in denial
or avoidance of new matters alleged in, or relating to, said actionable document.

In the event of an actionable document attached to the reply, the defendant may file a
rejoinder if the same is based solely on an actionable document.

But the foregoing requirement anent specific denial under oath of the genuineness and due execution
of an actionable document is NOT REQUIRED under the following circumstances:

1. The adverse party (against whom the actionable document is presented) does not
appear to be a party to the instrument (he does not sign the document, or the same is
not supposedly signed on his behalf); or

2. When compliance with an order of inspection of the original instrument is refused; or

3. The document appended to the pleading is not actually an actionable document (or that
it is merely an evidentiary matter, like a demand letter in an action for collection of sum
of money), in which even an unverified pleading controverting the same would suffice.

Section 9. Official document or act.- In pleading an official document or official act, it is

sufficient to aver that the document was issued or the act was done in compliance with law.
(9)

NOTES:

An official act or document may be pleaded by expediently alleging in the pleading that the document was
issued or the act was done in compliance with the law.

Verily, it is enough to just state in the pleading, for example, “that Cebu City Edgardo Labella issued
Memorandum No. 2020-233, on March 15, 2020, directing all offices in city hall to adopt a four-day
workweek as a precautionary measure against COVID-19.” There is no need to state that his act is valid, or
he acted in accordance with law.

In summary, the allegations in the pleadings may just be done GENERALLY in the following:

1.) Rule 8, Section 3– Conditions precedent;

2.) Rule 8, Section 5, 2nd sentence – Conditions of the mind;
3.) Rule 8, Section 6 – Judgment;
 4.) Rule 8, Section 9 – Official document or act

Upon the other hand, the averments must be done with PARTICULARITY under the following instances:

1.) Rule 8, Section 4, first sentence – Capacity to sue and be sued;

2.) Rule 8, Section 4, 2nd sentence – Legal existence of any party to sue or be sued;
3.) Rule 8, Section 5, first sentence – Fraud or mistake

Section 10. Specific denial. — A defendant must specify each material allegation of fact the
truth of which he or she does not admit and, whenever practicable, shall set forth the
substance of the matters upon which he or she relies to support his or her denial. Where a
defendant desires to deny only a part of an averment, he or she shall specify so much of it as
is true and material and shall deny only the remainder. Where a defendant is without
knowledge or information sufficient to form a belief as to the truth of a material averment
made to the complaint, he or she shall so state, and this shall have the effect of a denial.
(10a)

NOTES:

There are three modes of making a specific denial:

A. The defendant must specify each material allegation of fact, the truth of which he does not
admit and whenever practicable shall set forth the substance of the matters which he will rely
upon to support the denial;

Example:

“Paragraph 7(a) is specifically denied, the truth being that respondent was forced to leave
the conjugal dwelling, together with their four (4) children, because petitioner, then drunk
as usual, violently hit respondent several times during arguments. Petitioner’s coping
mechanism when confronted with domestic problems, is to resort to excessive drinking.
Since petitioner would become so unreasonable and violent every time he got drunk,
respondent and their children had to leave the conjugal dwelling and stay at her parents’
house for a month to protect her and their children from petitioner’s continued verbal and
physical abuses.”

The mere use of the words “specifically denies,” without any further support for the denial is
hollow or empty (Agton v. Court of Appeals, 113 SCRA 322).

B. When a pleader desires to deny only a part or a qualification on an averment, he shall specify
so much of it as true and material and he shall deny the remainder;

Example:

“Paragraph 2 of the Complaint is admitted, insofar as it is alleged that respondent is of

legal age, married, and a Filipino citizen. The allegation that respondent is presently
residing in Sta. Monica Homes, Timpolok Babag I, Lapu-Lapu City is specifically
denied, the truth being that, from the time petitioner and respondent separated de facto on
 17 March 2004 and up to the present, respondent has been residing in Maryville
Subdivision, Talamban, Cebu City.”

Where a fact is alleged with qualifying or language, and the words of the allegation as so
qualified or modified are just literally denied. In such case, the qualifying circumstances alone are
denied while the fact itself is admitted (Blume v. McGregor, 148 P 2d. 656, 64 Cal. App. 2d 244).
In such situation, the defendant’s denial is a NEGATIVE PREGNANT, and is equivalent to an
admission (Galofa v. Nee Bon Sing, 22 SCRA 48):

Galofa v. Nee Bon Sing, 22 SCRA 48

The plaintiff-appellee Apolonio Galofa filed a complaint against the defendant-

appellant Nee Bon Sing 1 for the recovery of possession of and to quiet title
over a certain parcel of land in Sta. Lourdes, Barcelona, Sorsogon, alleging
therein the prior ownership and possession of the land by his late father,
Francisco Galofa, and its adjudication in favor of the plaintiff in an oral partition
among his co-heirs. The complaint alleges further:

4. That plaintiff however, despite the foregoing, was unable to take actual
possession of the above-described property due to an unwarranted adverse
claim of rights of ownership and possession by the defendant and/or his
tenant or encargado, Abion Pantilone, alleging sale by a certain Fe Nicolas
of said property to defendant, which if true, had no right whatsoever to
legally dispose the above-described property not being the owner thereof,
aside from the fact that the defendant is not allowed under the law to own
and possess real properties being an alien, pursuant to the Constitution
and/or the Krivenko case;
xx xxx xxx

In his answer corresponding to the above-quoted allegations in the complaint,

the defendant-appellant Nee Bon Sing manifested as follows:

3. That the defendant denies the material averments contained in paragraph

4 of the Complaint, the truth being, that the defendant never asserted title of
ownership to the property described in the Complaint to anybody, much less
to the herein plaintiff in virtue of any deed of conveyance executed in favor
of the defendant by one Fe Nicolas, nor claimed any right over the said
property, either by himself or through another:

HELD: It is to be noted that, to the plaintiff's allegation of his inability to take

actual possession of the parcel of land due to "an unwarranted adverse claim of
rights of ownership and possession by the defendant . . .", followed by an
allegation of how such claim was exercised, the defendant's denial is as to "the
materials averments contained in paragraph 4 of the Complaint, . . ." conjoined
with his disclaimer or dominical or possessory rights in the manner alleged in
the complaint. The defendant's denial is, therefore, a negative pregnant, which is
equivalent to an admission.
 NOTE: This case is about possession of a parcel of land. In the above case,
defendant merely denies having asserted title in virtue of any deed of
conveyance executed in his favor by one Fe Nicolas, but defendant did not
specifically deny the allegation in the complaint that he effectively denied the
plaintiff of, or that the plaintiff was unable to take, actual possession of the
litigated property.

Another example:

The complaint alleges that “the defendant acted surreptitiously and maliciously entered
into, and actually occupied, plaintiff’s property.”

In the answer, defendant simply averred that “the foregoing allegation is specifically
denied, in that is it never true that defendant surreptitiously and maliciously entered
into, and occupied, plaintiff’s property” – and that’s all.

The foregoing allegation in the answer is a NEGATIVE PREGNANT because, in effect, the
defendant impliedly admitted having entered and occupied plaintiff’s property, only that
it was not, according to him, done surreptitiously and maliciously. He merely denied the
qualifying words describing the manner of his entry to the litigated property. It would
have been different if the defendant categorically stated to that “he never actually
entered and occupied plaintiff’s property, in any manner and under any circumstances,”
or words of similar import.

C. Where the defendant is without knowledge or information sufficient to form a belief as to the
truth of a material averment made in the complaint, he shall so state, and this shall have the
effect of a denial.

Example:
“2.0. Paragraph 13 of the complaint is denied for lack of knowledge sufficient to form a
belief as the truth of facts alleged therein, more so that there is nothing in the complaint
which shows or even hint that plaintiff underwent psychological therapy.”

But this kind of denial should be availed of with sincerity and in good faith, and not for the
purpose
of delay. Indeed, it has been held that said denial is unavailing if the fact to which want of
knowledge is asserted is to the knowledge of the court so plainly and necessarily within the
defendant’s knowledge that his averment of ignorance must be probably untrue (Capitol Motors
vs. Nemesio Yabut, G.R. No. L-28140, March 19, 1970).

So, where, in an action for collection of sum of money, the Real Estate Mortgage and the
promissory note signed and executed by the defendant are attached to the complaint, the
defendant cannot just casually aver in his answer that he has no knowledge about the same.
Either he admits the due execution and genuineness thereof or specifically denies the same (PNB
v. Utility Assurance & Surety Co., Inc. 177 SCRA 210). Defendant’s posturing that he has no
knowledge about the said documents is, under that circumstance, is empty and hollow; hence, it
is akin to an admission.
Section 11. Allegations not specifically denied deemed admitted. — Material averments in a
pleading asserting a claim or claims, other than those as to the amount of unliquidated
damages, shall be deemed admitted when not specifically denied. (11a)

NOTES:

Section 11, Rule 8 of the Amended Rules sets forth the effects of the failure to make a specific denial of a
material averments in a pleading asserting a claim or claims, and such pleading may include compulsory
counterclaims, cross-claims, third-party complaints (Valdez v. Paras, L-11474, May 13, 1959), and even a
reply, if any.

But even where there is a failure to make a specific denial of a material averments in a pleading asserting
a claim, the following matters are NOT deemed admitted:

1. Amount of unliquidated damages (like moral and exemplary damages);

2. Immaterial allegations (Worcester v. Lorenzana, L-9435, July 31, 1958);
3. Incorrect conclusions of facts drawn from facts set out in the complaint;
4. Conclusions of law;
5. Default (Section 1, Rule 9);
6. Annulment of marriage (Article 48, Family Code);
7. Legal Separation (Article 60, Family Code).

Conversely, if what is claimed is liquidated damages – that which the penalty expressly agreed upon and
stipulated in an instrument – the same is admitted if there is a failure to make a specific denial of a
material averments in a pleading asserting a claim.

Section 12. Affirmative defenses. — (a) A defendant shall raise his or her affirmative defenses in his
or her answer, which shall be limited to the reasons set forth under Section 5(b), Rule 6, and the
following grounds:

1. That the court has no jurisdiction over the person of the defending party;

2. That venue is improperly laid;

3. That the plaintiff has no legal capacity to sue;

4. That the pleading asserting the claim states no cause of action; and

5. That a condition precedent for filing the claim has not been complied with.

(b) Failure to raise the affirmative defenses at the earliest opportunity shall constitute a waiver
thereof.

(c) The court shall motu proprio resolve the above affirmative defenses within thirty (30) calendar
days from the filing of the answer.
(d) As to the other affirmative defenses under the first paragraph of Section 5(b), Rule 6, the court
may conduct a summary hearing within fifteen (15) calendar days from the filing of the answer.
Such affirmative defenses shall be resolved by the court within thirty (30) calendar days from the
termination of the summary hearing.

(e) Affirmative defenses, if denied, shall not be the subject of a motion for reconsideration or petition
for certiorari, prohibition or mandamus, but may be among the matters to be raised on appeal after
a judgment on the merits. (n)

NOTES:

This provision is something new and is not found under Rule 8 of the 1997 Rules of Civil Procedure.

It bears to emphasize, however, that the affirmative defenses enumerated under items (1) to (5) of
paragraph (a), Section 12, Rule 8, of the Amended Rules, are among the grounds for filing a motion to
dismiss under Rule 16 of the 1997 Rules of Civil Procedure. But said grounds are now being transposed to
Section 12, Rule 8 of the Amended Rules, where said grounds shall just be pleaded by way of affirmative
defenses.

The poser is this: Does Section 12, Rule 8 of the Amended Rules altogether prohibit the filing of a
Motion to Dismiss?

To answer the foregoing query, let us first consider the provision of Section 5, Rule 6, of the Amended
Rules, thus:

Section 5. Defenses. — Defenses may either be negative or affirmative.

(a) A negative defense is the specific denial of the material fact or facts alleged in the
pleading of the claimant essential to his or her cause or causes of action.

(b) An affirmative defense is an allegation of a new matter which, while hypothetically

admitting the material allegations in the pleading of the claimant, would nevertheless
prevent or bar recovery by him or her. The affirmative defenses include fraud, statute of
limitations, release, payment, illegality, statute of frauds, estoppel, former recovery,
discharge in bankruptcy, and any other matter by way of confession and avoidance.

Affirmative defenses may also include grounds for the dismissal of a complaint,
specifically, that the court has no jurisdiction over the subject matter, that there is
another action pending between the same parties for the same cause, or that the
action is barred by a prior judgment.

As it appears, the second paragraph of Section 5(b), Rule 6, of the Amended Rules mentions of the
following: (1) that the court has no jurisdiction over the subject matter; (2) that there is another action
pending between the same parties for the same cause; or (3 )that the action is barred by a prior
judgment. Informatively, these three (3) matters are also among the grounds for filing a motion to dismiss
under Rule 16 of the 1997 Rules of Civil Procedure. But under the second sentence of paragraph (b),
Section 5, Rule 6, of the Amended Rules, these three (3) other matters or grounds MAY now be pleaded in
the answer by way of affirmative defenses.
On the other hand, paragraph (a), Section 12, Rule 8, of the Amended Rules made reference to the
“reasons set forth under Section 5(b), Rule 6” [Notably, such provision is cited in its totality, as if to
include or embrace the reasons or grounds under the second paragraph of Section 5(b), Rule 6 -- (1) that
the court has no jurisdiction over the subject matter; (2) that there is another action pending between the
same parties for the same cause; or (3 ) that the action is barred by a prior judgment] . Notably, and, as
worded, paragraph (a), Section 12, Rule 8, of the Amended Rules provides that the grounds enumerated
under items (1) to (5) thereof, as well as the grounds or the “reasons set forth under Section 5(b), Rule 6”
(in its totality), SHALL be raised in the answer by way of affirmative defenses.

At a glance, it would appear that paragraph (a), Section 12, Rule 8, of the Amended Rules is RESTRICTIVE
in requiring that the grounds for dismissal of the actions SHALL only be pleaded in the answer by way of
affirmative defenses. On the other hand, the second paragraph of Section 5(b), Rule 6, of the Amended
Rules appears to be PERMISSIVE, in that it just provides that the three (3) other grounds - (1) that the
court has no jurisdiction over the subject matter; (2) that there is another action pending between the
same parties for the same cause; or (3 )that the action is barred by a prior judgment – MAY be pleaded in
the Answer by way of affirmative defense, thereby suggesting, from the other vantage point, that the
same may not be raised in the answer, such that the same may be raised in another pleading or, perhaps,
in a motion.

With this in mind, it would ostensibly appear that there are two postulates on whether the Amended
Rules now proscribe the filing of a motion to dismiss, viz:

1. First postulate. The Amended Rules altogether prohibit the filing of a motion to dismiss prior to,
or in lieu of, filing of the answer, in that any and all grounds for filing a motion to dismiss should
just be pleaded in the answer by way of affirmative defenses; OR

2. Second postulate. The Amended Rules still allows the filing of a motion to dismiss prior to the
filing of the answer, if it is based on any or all of the grounds enumerated under second
paragraph of Section 5(b), Rule 6 -- (1) that the court has no jurisdiction over the subject
matter; (2) that there is another action pending between the same parties for the same cause;
or (3 )that the action is barred by a prior judgment.

Be that as it may, it now appears that the second postulate is the correct one -- that is, the filing of a
motion to dismiss prior to the filing of the answer is STILL ALLOWED, if it is based on any or all of grounds
enumerated under the second paragraph of Section 5(b), Rule 6 -- (1) that the court has no jurisdiction
over the subject matter; (2) that there is another action pending between the same parties for the same
cause; or (3 )that the action is barred by a prior judgment; and, in addition thereto, also on the ground (4)
that the claim is barred by statute of limitations.

The foregoing submission finds meaning and support under Section 1, Rule 9 of the Amended Rules,
which still mentions of a motion to dismiss, thus:

Section 1. Defenses and objections not pleaded. — Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. However, when it
appears from the pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action pending between
the same parties for the same cause, or that the action is barred by a prior judgment
or by statute of limitations, the court shall dismiss the claim.
That the filing of a motion to dismiss is still allowed is all the more made evident by the provision of
Section 12 (a), Rule 15 of the Amended Rules, which provides, in part:

Section. 12. Prohibited motions. — The following motions shall not be allowed:

(a) Motion to dismiss except on the following grounds:

1) That the court has no jurisdiction over the subject matter of the claim;
2) That there is another action pending between the same parties for the same cause; and
3) That the cause of action is barred by a prior judgment or by the statute of limitations;

Harmonizing the foregoing provisions, it would now appear that:

1) The filing of a motion to dismiss prior to the filing of the answer is STILL ALLOWED, for as long it
is based on any or all of grounds enumerated under second paragraph of Section 5(b), Rule 6,
and Section 12 (b), Rule 15 of the Amended Rules -- (1) that the court has no jurisdiction over
the subject matter; (2) that there is another action pending between the same parties for the
same cause; or (3) that the action is barred by a prior judgment – and/or (4) that the claim is
barred by statute of limitationr. These are the four permissible grounds for filing a motion to
dismiss;

2) If no such motion to dismiss is filed based on any or all of the grounds enumerated under the
second paragraph of Section 5(b), Rule 6 and Section 12(b), Rule 15, of the Amended Rules, or
where the motion to dismiss is denied, then any or all of the said grounds must be pleaded in the
answer by way of affirmative defenses, together with any or all of the grounds enumerated
under items (1) to (5) of paragraph (a), Section 12, Rule 8, of the Amended Rules (which are no
longer grounds for filing a motion to dismiss, as they should just be pleaded in the answer by way
of affirmative defenses);

3) But even if any or all of the of the grounds enumerated under second paragraph of Section 5(b),
Rule 6, and Section 12(b) Rule 15 of the Amended Rules are not raised in the motion to dismiss or
pleaded in the answer by way of special defenses, the case or claim may still be dismissed on any
or all of those grounds, when it appears from the pleadings or the evidence on record that the
court has no jurisdiction over the subject matter, that there is another action pending between
the same parties for the same cause, or that the action is barred by a prior judgment, or by
statute of limitations, pursuant to Section 1, Rule 9 of the Amended Rules.

Take note further that the foregoing rule under Section 1, Rule 9 of the Amended Rules
effectively qualifies the provision under paragraph 12(b), Rule 8 of the Amended Rules which
provides that “(b) Failure to raise the affirmative defenses at the earliest opportunity shall
constitute a waiver thereof”.

Sight should not be lost of the fact where the answer contains affirmative defenses based on any or all of
the grounds enumerated under items (1) to (5) of paragraph (a), Section 12, Rule 8, of the Amended Rules
– 1) That the court has no jurisdiction over the person of the defending party; 2) That venue is improperly
laid; 3) That the plaintiff has no legal capacity to sue; 4) That the pleading asserting the claim states no
cause of action; and 5) That a condition precedent for filing the claim has not been complied with – the
court SHALL motu proprio resolve such affirmative defenses within thirty (30) calendar days from the
filing of the answer [Section 12(c), Rule 8 of the Amended Rules].
But where the affirmative defenses pleaded in the answer consist of any or all of the grounds under the
first (1st) paragraph of Section 5(b), Rule 6 of the Amended Rules – 1) fraud, 2) statute of limitations, 3))
release, 4) payment, 5) illegality, 6) statute of frauds, 7) estoppel, 8) former recovery, 9) discharge in
bankruptcy, and 10) any other matter by way of confession and avoidance – the court MAY conduct a
summary hearing thereon within fifteen (15) calendar days from the filing of the answer. Such affirmative
defenses shall be resolved by the court within thirty (30) calendar days from the termination of the
summary hearing [Section 12(d), Rule 8 of the Amended Rules]. Here, the court may or may not conduct
a summary hearing – meaning, the matter of conducting a summary hearing is left to the sound
discretion of the court or that the same is not mandatory. That conducting a summary hearing with
respect to affirmative defenses pleaded in the answer is discretionary on the court is buttressed by the
provision of Section 12(c), Rule 15 of the Amended Rules, thus:

Section. 12. Prohibited motions. — The following motions shall not be allowed:

xxx xxx xxx

(b) Motion to hear affirmative defenses;

Furthermore, be it noted that if the court denies the affirmative defenses pleaded in the answer, such
denial SHALL NOT be the subject of a motion for reconsideration or petition for certiorari, prohibition or
mandamus, but may be among the matters to be raised on appeal after a judgment on the merits
[Section 12(e), Rule 8 of the Amended Rules]. In other words, the trial of the case will proceed.

If, upon the other hand, a motion to dismiss is filed based on any or all of the permissible grounds --
(1) that the court has no jurisdiction over the subject matter; (2) that there is another action pending
between the same parties for the same cause; or (3 )that the action is barred by a prior judgment; and/or
(4) that the claim is barred by statute of limitation (which may also be raised by in the answer by way of
affirmative defenses) -- the court may, in the exercise of its discretion, call a hearing on such motion to
dismiss, pursuant to Section 6, Rule 15 of the Amended Rules, viz:

Section. 6. Notice of hearing on litigious motions; discretionary. — The court may, in

the exercise of its discretion, and if deemed necessary for its resolution, call a
hearing on the motion. The notice of hearing shall be addressed to all parties concerned,
and shall specify the time and date of the hearing.

But whether or not the court, in the exercise of its discretion, call a hearing on the motion to dismiss that
is filed, and considering that a motion to dismiss is considered a litigious motion [Section 5(2), Rule 15 of
the Amended Rules], the adverse party can, as he shall, file his or her opposition thereto , within five (5)
days from receipt hereof, in accordance with Section 5(c), Rule 15 of the Amended Rules, thus:

Section 5. Litigious motions. — (a) Litigious motions include:

1) Motion for bill of particulars;

2) Motion to dismiss;

xxx xxx xxx

xxx xxx xxx
 (c) The opposing party shall file his or her opposition to a litigious motion within five
(5) calendar days from receipt thereof. No other submissions shall be considered by the
court in the resolution of the motion.

The motion shall be resolved by the court within fifteen (15) calendar days from its
receipt of the opposition thereto, or upon expiration of the period to file such opposition.

And if the motion to dismiss is denied, then defendant shall file his answer to the complaint. An order
denying a motion to dismiss, being in the nature of an interlocutory order, is not subject to appeal, but it
may be among the matters to be raised on appeal after a judgment on the merits (Harrison Foundry &
Machinery, et al. v. Harrison Foundry Workers Association, et al., G.R. No. L-18432, June 19, 1963).
But what is the effect if the affirmative defense or a motion to dismiss is GRANTED?

Section 13, Rule 15 of the Amended Rules provides the answer, thus:

Section. 13. Dismissal with prejudice. — Subject to the right of appeal, an order
granting a motion to dismiss or an affirmative defense that the cause of action is barred
by a prior judgment or by the statute of limitations; that the claim or demand set forth in
the plaintiff’s pleading has been paid, waived, abandoned or otherwise extinguished; or
that the claim on which the action is founded is unenforceable under the provisions of the
statute of frauds, shall bar the refiling of the same action or claim.

Conversely, if the motion to dismiss or affirmative defense is granted and the ground for the dismissal of
the pending/present case or claim is that the claim is (1) barred by a prior judgment or (2) by the statute
of limitations; or (3) that the claim or demand set forth in the plaintiff’s pleading has been paid, waived,
abandoned or otherwise extinguished; or (4) that the claim on which the action is founded is
unenforceable under the provisions of the statute of frauds, then such order of dismissal (being with
prejudice) shall be subject to appeal. But once the said order of dismissal is affirmed on appeal with
finality, then the case or claim CANNOT ANYMORE BE REFILED.

But where the order of dismissal of the case of claim is based on the grounds other that the four (4)
grounds mentioned under Section 13, Rule 15 of the Amended Rules – these other grounds being, but not
limited to, (1) the venue is improperly laid; or (2) plaintiff has no legal capacity to sue; or (3) that the
complaint states no cause of action; or (4) that a condition precedent for filing the suit has not been
complied with; or (5) litis pendentia – such dismissal, if proper, is NOT A BAR to another action when the
circumstances change and warrant the refiling and prosecution of the same.

Section 13. Striking out of pleading or matter contained therein. — Upon motion made by
a party before responding to a pleading or, if no responsive pleading is permitted by these
Rules, upon motion made by a party within twenty (20) calendar days after the service of
the pleading upon him or her, or upon the court's own initiative at any time, the court may
order any pleading to be stricken out or that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out therefrom. (12a)

NOTES:
Before responding to a pleading, the purported party-pleader may move to strike out a pleading or a
portion thereof, for being sham, false, redundant, impertinent, or scandalous. Striking a pleading means
that the pleading will be deemed erased as if it was never filed. If a portion of the pleading be ordered
stricken out or expunged from the pleading, then such portion is deemed erased or not having been
written at all.

Take note that even without such motion, the court may at any time, and on its own accord or initiative,
order that a pleading or a portion thereof be stricken out or expunged for being for being sham, false,
redundant, impertinent, or scandalous.

Example:

In an action for recovery of parcel of land, the plaintiff averred in his complaint that the
defendant is an adulterer (a condition which, even if true, has no bearing or relation to the issue
in such case). If such be the case, the defendant may move to strike out such impertinent,
irrelevant, and scandalous allegation, and this the defendant should do before filing his answer
to the complaint.

But even without such motion from the defendant, the court may, on its own initiative, and at
any time or even after the defendant had already filed his answer to the complaint, direct that
such allegation be stricken out for being impertinent, irrelevant, or scandalous.
.
Such is without prejudice to appropriate sanctions that may be meted out to the pleader and/or his
lawyer, which may even include criminal prosecution for libel.

If the scandalous matter is contained in the Rejoinder, which under Section 10, Rule 6 of the Amended
Rules, seems to be the last pleading, then the motion to strike out the same may be filed by the plaintiff
within 20 days after service of the Rejoinder.