I.
Notarial Laws and Rules
A. Legislative Enactments and Judicial Issuances
i. Act No. 2103 – “An Act Providing for the
Acknowledgement and Authentication of
Instruments and Documents Without the
Philippine Islands” enacted on January 26,
1912
Section 1. An instrument or document acknowledged and
authenticated in any State, Territory, the District of Columbia,
or dependency of the United States, shall be considered
authentic if the acknowledgment and authentication are
made in accordance with the following requirements:
(a) The acknowledgment shall be made before a notary
public or an officer duly authorized by law of the country to
take acknowledgments of instruments or documents in the
place where the act is done. The notary public or the officer
taking the acknowledgment shall certify that the person
acknowledging the instrument or document is known to him
and that he is the same person who executed it, and
acknowledged that the same is his free act and deed. The
certificate shall be made under his official seal, if he is by law
required to keep a seal, and if not, his certificate shall so
state.
(b) The certificate of the notary public or the officer taking the
acknowledgment shall be authenticated by the country clerk
or his deputy, or by a clerk or deputy clerk of any court of
record of the county, municipality or judicial district wherein
the acknowledgment is taken, or by the secretary of state,
executive secretary, or other similar functionary of the state,
territory, the District of Columbia, or dependency of the
United States, as the case may be. The officer making the
authentication shall certify under the seal of his office or
court that the person who took the acknowledgment was at
the time duly authorized to act as notary public or that he
was duly exercising the functions of the office by virtue of
which he assumed to act, and that as such he had authority
under the law to take acknowledgment of instruments or
documents in the place where the acknowledgment was
taken, and that his signature and seal, if any, are genuine.
Section 2. An instrument or document acknowledged and
authenticated in a foreign country shall be considered
authentic if the acknowledgment and authentication are
made in accordance with the following requirements:
(a) The acknowledgment shall be made before (1) an
ambassador, minister, secretary of legation, chargé
d’affaires, consul, vice-consul, or consular agent of the
1
United States, acting within the country or place to which he
is accredited, or (2) a notary public or officer duly authorized
by law of the country to take acknowledgments of
instruments or documents in the place where the act is done.
(b) The person taking the acknowledgment shall certify that
the person acknowledging the instrument or document is
known to him, and that he is the same person who executed
it, and acknowledged that the same is his free act and deed.
The certificate shall be under his official seal, if he is by law
required to keep a seal, and if not, his certificate shall so
state. In case the acknowledgment is made before a notary
public or an officer mentioned in subdivision (2) of the
preceding paragraph, the certificate of the notary public or
the officer taking the acknowledgment shall be authenticated
by an ambassador, minister, secretary of legation, chargé
d’affaires, consul, vice-consul, or consular agent of the
2
United States, acting within the country or place to which he
is accredited. The officer making the authentication shall
certify under his official seal that the person who took the
acknowledgment was at the time duly authorized to act as
notary public or that he was duly exercising the functions of
the office by virtue of which he assumed to act, and that as
such he had authority under the law to take acknowledgment
of instruments or documents in the place where the
acknowledgment was taken, and that his signature and seal,
if any, are genuine.
Section 3. Instruments or documents acknowledged and
authenticated in substantial conformity with the provisions of
this Act before the same takes effect shall be considered
authentic.
Section 4. This Act shall not be construed to repeal in any
way any of the provisions contained in Chapter X, Part I, of
3
Act Numbered One hundred and ninety, entitled "An Act
providing a code or procedure in civil actions and special
proceedings in the Philippine Islands."
Enacted, January 26, 1912.
ii. The Old Notarial Law – Sec. 245 to 246 of Act
No. 2711 or the Revised Administrative Code of
the Philippines
SECTION 245. Notarial register. – Every notary public shall
keep a register to be known as the notarial register, wherein
record shall be made of all his official acts as notary; and he
shall supply a certified copy of such record, or any part
thereof, to any person applying for it and paying the legal
fees therefor.
Such register shall be kept in books to be furnished by the
Attorney-General to any notary public upon request and
upon payment of the actual cost thereof, but officers
exercising the functions of notaries public ex officio shall be
supplied with the register at Government expense. The
register shall be duly paged, and on the first page the
Attorney-General shall certify the number of pages of which
the book consist.
[2657–279.]
SECTION 246. Matters to be entered therein – The notary
public shall enter in such register, in chronological order, the
nature of each instrument executed, sworn to, or
acknowledged before him, the person executing, swearing
to, or acknowledging the instrument, the witnesses, if any, to
the signature, the date of the execution, oath, or
acknowledgment of the instrument, the fees collected by hint
for his services as notary in connection therewith, and; when
the instrument is a contract, he shall keep a correct copy
thereof as part of his records, and shall likewise enter in said
records a brief description of the substance thereof, and
shall give to each entry a consecutive number, beginning
with number one in each calendar year. The notary shall give
to each instrument executed, sworn to, or acknowledged
before him a number corresponding to the one in his
register, and shall also state on the instrument the page or
pages of his register on which the same is recorded. No
blank line shall be left between entries.
When a notary public shall protest any draft, bill of exchange,
or promissory note, he shall make a full and true record in
his notarial register of all his proceedings in relation thereto,
and shall note therein whether the demand or the sum of
money therein mentioned was made, of whom, when, and
where; whether he presented such draft, bill, or note;
whether notices were given, to whom, and in what manner;
where the same was made, and when, and to whom, and
where directed; and of every other fact touching the same.
At the end of each week the notary shall certify in his register
the number of instruments executed, sworn to,
acknowledged, or protested before him; or if none such,
certificate shall show this fact.
[2657–280]
A certified copy of each month’s entries as described in this
section and a certified copy of any instrument acknowledged
before them shall within the first ten days of the month next
following be forwarded by the notaries public to the clerk of
the Court of First Instance of the province and shall be filed
under the responsibility of such officer: Provided, That if
there is no entry to certify for the month, the notary shall
forward a statement to this effect in lieu of the certified
copies herein required.
[3068–1; C.A. 72–1.]
iii. Official Oaths – Sec. 40 to 42, Book I, Chapter
10 of Executive Order No. 292, s. 1987 –
Administrative Code of 1987, as amended
by Republic Act No. 6733
SECTION 40. Oaths of Office for Public Officers and
Employees.—All public officers and employees of the
government including every member of the armed forces
shall, before entering upon the discharge of his duties, take
an oath or affirmation to uphold and defend the Constitution;
that he will bear true faith and allegiance to it; obey the laws,
legal orders and decrees promulgated by the duly
constituted authorities; will well and faithfully discharge to the
best of his ability the duties of the office or position upon
which he is about to enter; and that he voluntarily assumes
the obligation imposed by his oath of office, without mental
reservation or purpose of evasion. Copies of the oath shall
be deposited with the Civil Service Commission and the
National Archives.
SECTION 41. Officers Authorized to Administer Oath.—(1)
The following officers have general authority to administer
oath: Notaries public, members of the judiciary, clerks of
courts, the Secretary of the either House of the Congress of
the Philippines, of departments, bureau directors, registers of
deeds, provincial governors and lieutenant-governors, city
mayors, municipal mayors and any other officer in the
service of the government of the Philippines whose
appointment is vested in the President.
(2) Oaths may also be administered by any officer whose
duties, as defined by law or regulation, require presentation
to him of any statement under oath.
SECTION 42. Duty to Administer Oath.—Officers authorized
to administer oaths, with the exception of notaries public,
municipal judges and clerks of court, are not obliged to
administer oaths or execute certificates save in matters of
official business; and with the exception of notaries public,
the officer performing the service in those matters shall
charge no fee, unless specifically authorized by law.
iv. Presentation of Community Tax Certificate on
Certain Occasions – Sec. 163, Republic Act No.
7160, Local Government Code of 1991
SECTION 163. Presentation of Community Tax Certificate
On Certain Occasions. – (a) When an individual subject to
the community tax acknowledges any document before a
notary public, takes the oath of office upon election or
appointment to any position in the government service;
receives any license, certificate, or permit from any public
authority; pays any tax or fee; receives any money from any
public fund; transacts other official business; or receives any
salary or wage from any person or corporation, it shall be the
duty of any person, officer, or corporation with whom such
transaction is made or business done or from whom any
salary or wage is received to require such individual to
exhibit the community tax certificate.
The presentation of community tax certificate shall not be
required in connection with the registration of a voter.
(b) When, through its authorized officers, any corporation
subject to the community tax receives any license,
certificate, or permit from any public authority, pays any tax
or fee, receives money from public funds, or transacts other
official business, it shall be the duty of the public official with
whom such transaction is made or business done, to require
such corporation to exhibit the community tax certificate.
(c) The community tax certificate required in the two
preceding paragraphs shall be the one issued for the current
year, except for the period from January until the fifteenth
(15th) of April each year, in which case, the certificate issued
for the preceding year shall suffice.
v. Effect of Failure to Stamp Taxable Document –
Sec. 201, Title VII [Documentary Stamp Tax] of
Republic Act No. 8424 or the Tax Reform Act of
1997
Section 201. Effect of Failure to Stamp Taxable Document.
– An instrument, document or paper which is required by law
to be stamped and which has been signed, issued, accepted
or transferred without being duly stamped, shall not be
recorded, nor shall it or any copy thereof or any record of
transfer of the same be admitted or used in evidence in any
court until the requisite stamp or stamps are affixed thereto
and cancelled.
vi. 2004 Rules on Notarial Practice – A.M. No. 02-
8-13-SC, SC En Banc Resolution dated July 6,
2004
EN BANC
A.M. No. 02-8-13-SC
RESOLUTION
Acting on the compliance dated 05 July 2004 and on the
proposed Rules on Notarial Practice of 2004 submitted by
the Sub-Committee for the Study, Drafting and Formulation
of the Rules Governing the Appointment of Notaries Public
and the Performance and Exercise of Their Official
Functions, of the Committees on Revision of the Rules of
Court and on Legal Education and Bar Matters, the Court
Resolved to APPROVE the proposed Rules on Notarial
Practice of 2004, with modifications, thus:
2004 Rules on Notarial Practice
RULE I: IMPLEMENTATION
SECTION 1. Title. - These Rules shall be known as the 2004
Rules on Notarial Practice.
SEC. 2. Purposes. - These Rules shall be applied and
construed to advance the following purposes:
(a) to promote, serve, and protect public interest;
(b) to simplify, clarify, and modernize the rules governing
notaries public; and
(c) to foster ethical conduct among notaries public.
SEC. 3. Interpretation. - Unless the context of these Rules
otherwise indicates, words in the singular include the plural,
and words in the plural include the singular.
RULE II: DEFINITIONS notary's signature and seal, and states the facts attested to
SECTION 1. Acknowledgment. - "Acknowledgment" refers to by the notary public in a particular notarization as provided
an act in which an individual on a single occasion: for by these Rules.

(a) appears in person before the notary public and presents SEC. 9. Notary Public and Notaty. - "Notary Public" and
an integrally complete instrument or document; "Notary" refer to any person commissioned to perform official
acts under these Rules.
(b) is attested to be personally known to the notary public or
identified by the notary public through competent evidence of SEC. 10. Principal. - "Principal" refers to a person appearing
identity as defined by these Rules; and before the notary public whose act is the subject of
notarization.
(c) represents to the notary public that the signature on the
instrument or document was voluntarily affixed by him for the SEC. 11. Regular Place of Work or Business. - The term
purposes stated in the instrument or document, declares that "regular place of work or business" refers to a stationary
he has executed the instrument or document as his free and office in the city or province wherein the notary public
voluntary act and deed, and, if he acts in a particular renders legal and notarial services.
representative capacity, that he has the authority to sign in
that capacity. SEC. 12. Competent Evidence of Identity. - The phrase
"competent evidence of identity" refers to the identification of
SEC. 2. Affirmation or Oath. - The term "Affirmation" or an individual based on:
"Oath" refers to an act in which an individual on a single
occasion: (a) at least one current identification document issued
by an official agency bearing the photograph and
(a) appears in person before the notary public; signature of the individual, such as but not limited to,
passport, driver’s license, Professional Regulations
(b) is personally known to the notary public or identified by Commission ID, National Bureau of Investigation
the notary public through competent evidence of identity as clearance, police clearance, postal ID, voter’s ID,
defined by these Rules; and Barangay certification, Government Service and
Insurance System (GSIS) e-card, Social Security System
(c) avows under penalty of law to the whole truth of the (SSS) card, Philhealth card, senior citizen card,
contents of the instrument or document. Overseas Workers Welfare Administration (OWWA) ID,
OFW ID, seaman’s book, alien certificate of
SEC. 3. Commission. - "Commission" refers to the grant of registration/immigrant certificate of registration,
authority to perform notarial acts and to the written evidence government office ID, certification from the National
of the authority. Council for the Welfare of Disable Persons (NCWDP),
Department of Social Welfare and Development (DSWD)
SEC. 4. Copy Certification. - "Copy Certification" refers to a certification; or [Amended: February 19, 2008 - see also
notarial act in which a notary public: http://www.supremecourt.gov.ph/publications/benchmark/20
08/02/020819.php]
(a) is presented with an instrument or document that is
neither a vital record, a public record, nor publicly (b) the oath or affirmation of one credible witness not privy to
recordable; the instrument, document or transaction who is personally
known to the notary public and who personally knows the
(b) copies or supervises the copying of the instrument or individual, or of two credible witnesses neither of whom is
document; privy to the instrument, document or transaction who each
personally knows the individual and shows to the notary
(c) compares the instrument or document with the copy; and public documentary identification.

(d) determines that the copy is accurate and complete. SEC. 13. Official Seal or Seal. - "Official seal" or "Seal"
refers to a device for affixing a mark, image or impression on
SEC. 5. Notarial Register. - "Notarial Register" refers to a all papers officially signed by the notary public conforming
permanently bound book with numbered pages containing a the requisites prescribed by these Rules.
chronological record of notarial acts performed by a notary
public. SEC. 14. Signature Witnessing. -The term "signature
witnessing" refers to a notarial act in which an individual on a
SEC. 6. Jurat. - "Jurat" refers to an act in which an individual single occasion:
on a single occasion:
(a) appears in person before the notary public and presents
(a) appears in person before the notary public and presents an instrument or document;
an instrument or document;
(b) is personally known to the notary public or identified by
(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as
the notary public through competent evidence of identity as defined by these Rules; and
defined by these Rules;
(c) signs the instrument or document in the presence of the
(c) signs the instrument or document in the presence of the notary public.
notary; and
SEC. 15. Court. - "Court" refers to the Supreme Court of the
(d) takes an oath or affirmation before the notary public as to Philippines.
such instrument or document.
SEC. 16. Petitioner. - "Petitioner" refers to a person who
SEC. 7. Notarial Act and Notarization. - "Notarial Act" and applies for a notarial commission.
"Notarization" refer to any act that a notary public is
empowered to perform under these Rules. SEC. 17. Office of the Court Administrator. - "Office of the
Court Administrator" refers to the Office of the Court
SEC. 8. Notarial Certificate. - "Notarial Certificate" refers to Administrator of the Supreme Court.
the part of, or attachment to, a notarized instrument or
document that is completed by the notary public, bears the SEC. 18. Executive Judge. - "Executive Judge" refers to the
Executive Judge of the Regional Trial Court of a city or
province who issues a notarial commission.
SEC. 19. Vendor - "Vendor" under these Rules refers to a
seller of a notarial seal and shall include a wholesaler or
retailer.
SEC. 20. Manufacturer. - "Manufacturer" under these Rules
refers to one who produces a notarial seal and shall include
an engraver and seal maker.
RULE III: COMMISSIONING OF NOTARY PUBLIC
SECTION 1. Qualifications. - A notarial commission may be
issued by an Executive Judge to any qualified person who
submits a petition in accordance with these Rules.
To be eligible for commissioning as notary public, the
petitioner:
SEC. 5. Notice of Summary Hearing. - (a) The notice of
summary hearing shall be published in a newspaper of
general circulation in the city or province where the hearing
shall be conducted and posted in a conspicuous place in the
offices of the Executive Judge and of the Clerk of Court. The
cost of the publication shall be borne by the petitioner. The
notice may include more than one petitioner.
(b) The notice shall be substantially in the following form;
NOTICE OF HEARING
Notice is hereby given that a summary hearing on the
petition for notarial commission of (name of petitioner) shall
be held on (date) at (place) at (time). Any person who has
any cause or reason to object to the grant of the petition may
file a verified written opposition thereto, received by the
undersigned before the date of the summary hearing.

(1) must be a citizen of the Philippines; ______________

(2) must be over twenty-one (21) years of age; Executive Judge

(3) must be a resident in the Philippines for at least one (1)
year and maintains a regular place of work or business in the
city or province where the commission is to be issued;
(4) must be a member of the Philippine Bar in good standing
with clearances from the Office of the Bar Confidant of the
Supreme Court and the Integrated Bar of the Philippines;
and
(5) must not have been convicted in the first instance of any
crime involving moral turpitude.
SEC. 6. Opposition to Petition. - Any person who has any
cause or reason to object to the grant of the petition may file
a verified written opposition thereto. The opposition must be
received by the Executive Judge before the date of the
summary hearing.
SEC. 7. Form of Notarial Commission. - The commissioning
of a notary public shall be in a formal order signed by the
Executive Judge substantially in the following form:
REPUBLIC OF THE PHILIPPINES

SEC. 2. Form of the Petition and Supporting Documents. - REGIONAL TRIAL COURT OF ______________
Every petition for a notarial commission shall be in writing,
verified, and shall include the following: This is to certify that (name of notary public) of (regular place
of work or business) in (city or province) was on this (date)
(a) a statement containing the petitioner's personal day of (month) two thousand and (year) commissioned by
qualifications, including the petitioner's date of birth, the undersigned as a notary public, within and for the said
residence, telephone number, professional tax receipt, roll of jurisdiction, for a term ending the thirty-first day of December
attorney's number and IBP membership number; , (year)

(b) certification of good moral character of the petitioner by at _______________

least two (2) executive officers of the local chapter of the
Integrated Bar of the Philippines where he is applying for Executive Judge
commission;
SEC. 8. Period Of Validity of Certificate of Authorization to
(c) proof of payment for the filing of the petition as required Purchase a Notarial Seal. - The Certificate of Authorization
by these Rules; and to Purchase a Notarial Seal shall be valid for a period of
three (3) months from date of issue, unless extended by the
(d) three (3) passport-size color photographs with light Executive Judge.
background taken within thirty (30) days of the application.
The photograph should not be retouched. The petitioner A mark, image or impression of the seal that may be
shall sign his name at the bottom part of the photographs. purchased by the notary public pursuant to the Certificate
shall be presented to the Executive Judge for approval prior
SEC. 3. Application Fee. - Every petitioner for a notarial to use.
commission shall pay the application fee as prescribed in the
Rules of Court. SEC. 9. Form of Certificate of Authorization to Purchase a
Notarial Seal. -The Certificate of Authorization to Purchase a
SEC. 4. Summary Hearing on the Petition. - The Executive Notarial Seal shall substantially be in the following form:
Judge shall conduct a summary hearing on the petition and
shall grant the same if: REPUBLIC OF THE PHILIPPINES

(a) the petition is sufficient in form and substance; REGIONAL TRIAL COURT OF_____________

(b) the petitioner proves the allegations contained in the CERTIFICATE OF AUTHORIZATION TO PURCHASE A
petition; and NOTARIAL SEAL

(c) the petitioner establishes to the satisfaction of the This is to authorize (name of notary public) of (city or
Executive Judge that he has read and fully understood these province) who was commissioned by the undersigned as a
Rules. notary public, within and for the said jurisdiction, for a term
ending, the thirty-first of December (year) to purchase a
The Executive Judge shall forthwith issue a commission and notarial seal.
a Certificate of Authorization to Purchase a Notarial Seal in
favor of the petitioner. Issued this (day) of (month) (year).
_______________ witnesses) and undersigned notary public"; and

Executive Judge (4) the notary public notarizes the signature by thumb or
other mark through an acknowledgment, jurat, or signature
SEC. 10. Official Seal of Notary Public. - Every person witnessing.
commissioned as notary public shall have only one official
seal of office in accordance with these Rules. (c) A notary public is authorized to sign on behalf of a person
who is physically unable to sign or make a mark on an
SEC. 11. Jurisdiction and Term. - A person commissioned as instrument or document if:
notary public may perform notarial acts in any place within
the territorial jurisdiction of the commissioning court for a (1) the notary public is directed by the person unable to sign
period of two (2) years commencing the first day of January or make a mark to sign on his behalf;
of the year in which the commissioning is made, unless
earlier revoked or the notary public has resigned under these (2) the signature of the notary public is affixed in the
Rules and the Rules of Court. presence of two disinterested and unaffected witnesses to
the instrument or document;
SEC. 12. Register of Notaries Public. - The Executive Judge
shall keep and maintain a Register of Notaries Public in his (3) both witnesses sign their own names ;
jurisdiction which shall contain, among others, the dates of
issuance or revocation or suspension of notarial (4) the notary public writes below his signature: "Signature
commissions, and the resignation or death of notaries public. affixed by notary in presence of (names and addresses of
The Executive Judge shall furnish the Office of the Court person and two \2] witnesses)"; and
Administrator information and data recorded in the register of
notaries public. The Office of the Court Administrator shall (5) the notary public notarizes his signature by
keep a permanent, complete and updated database of such acknowledgment or jurat.
records.
SEC. 2. Prohibitions. - (a) A notary public shall not perform a
SEC. 13. Renewal of Commission. - A notary public may file notarial act outside his regular place of work or business;
a written application with the Executive Judge for the provided, however, that on certain exceptional occasions or
renewal of his commission within forty-five (45) days before situations, a notarial act may be performed at the request of
the expiration thereof. A mark, image or impression of the the parties in the following sites located within his territorial
seal of the notary public shall be attached to the application. jurisdiction:

Failure to file said application will result in the deletion of the (1) public offices, convention halls, and similar places where
name of the notary public in the register of notaries public. oaths of office may be administered;

The notary public thus removed from the Register of (2) public function areas in hotels and similar places for the
Notaries Public may only be reinstated therein after he is signing of instruments or documents requiring notarization;
issued a new commission in accordance with these Rules.
(3) hospitals and other medical institutions where a party to
SEC. 14. Action on Application for Renewal of Commission. - an instrument or document is confined for treatment; and
The Executive Judge shall, upon payment of the application
fee mentioned in Section 3 above of this Rule, act on an (4) any place where a party to an instrument or document
application for the renewal of a commission within thirty (30) requiring notarization is under detention.
days from receipt thereof. If the application is denied, the
Executive Judge shall state the reasons therefor. (b) A person shall not perform a notarial act if the person
involved as signatory to the instrument or document -
RULE IV: POWERS AND LIMITATIONS OF NOTARIES
PUBLIC (1) is not in the notary's presence personally at the time of
SECTION 1. Powers. - (a) A notary public is empowered to the notarization; and
perform the following notarial acts:
(2) is not personally known to the notary public or otherwise
(1) acknowledgments; identified by the notary public through competent evidence of
identity as defined by these Rules.
(2) oaths and affirmations;
SEC. 3. Disqualifications. - A notary public is disqualified
(3) jurats; from performing a notarial act if he:

(4) signature witnessings; (a) is a party to the instrument or document that is to be

notarized;
(5) copy certifications; and
(b) will receive, as a direct or indirect result, any commission,
(6) any other act authorized by these Rules. fee, advantage, right, title, interest, cash, property, or other
consideration, except as provided by these Rules and by
(b) A notary public is authorized to certify the affixing of a law; or
signature by thumb or other mark on an instrument or
document presented for notarization if: (c) is a spouse, common-law partner, ancestor, descendant,
or relative by affinity or consanguinity of the principal within
(1)the thumb or other mark is affixed in the presence of the the fourth civil degree.
notary public and of two (2) disinterested and unaffected
witnesses to the instrument or document; SEC. 4. Refusal to Notarize. - A notary public shall not
perform any notarial act described in these Rules for any
(2) both witnesses sign their own names in addition to the person requesting such an act even if he tenders the
thumb or other mark; appropriate fee specified by these Rules if:

(3) the notary public writes below the thumb or other mark: (a) the notary knows or has good reason to believe that the
"Thumb or Other Mark affixed by (name of signatory by notarial act or transaction is unlawful or immoral;
mark) in the presence of (names and addresses of
(b) the signatory shows a demeanor which engenders in the register at any given time.
mind of the notary public reasonable doubt as to the former's
knowledge of the consequences of the transaction requiring SEC. 2. Entries in the Notarial Register. - (a) For every
a notarial act; and notarial act, the notary shall record in the notarial register at
the time of notarization the following:
(c) in the notary's judgment, the signatory is not acting of his
or her own free will. (1) the entry number and page number;

SEC. 5. False or Incomplete Certificate. - A notary public (2) the date and time of day of the notarial act;
shall not:
(3) the type of notarial act;
(a) execute a certificate containing information known or
believed by the notary to be false. (4) the title or description of the instrument, document or
proceeding;
(b) affix an official signature or seal on a notarial certificate
that is incomplete. (5) the name and address of each principal;

SEC. 6. Improper Instruments or Documents. - A notary (6) the competent evidence of identity as defined by these
public shall not notarize: Rules if the signatory is not personally known to the notary;

(a) a blank or incomplete instrument or document; or (7) the name and address of each credible witness swearing
to or affirming the person's identity;
(b) an instrument or document without appropriate notarial
certification. (8) the fee charged for the notarial act;

RULE V: FEES OF NOTARY PUBLIC (9) the address where the notarization was performed if not
SECTION 1. Imposition and Waiver of Fees. - For in the notary's regular place of work or business; and
performing a notarial act, a notary public may charge the
maximum fee as prescribed by the Supreme Court unless he (10) any other circumstance the notary public may deem of
waives the fee in whole or in part. significance or relevance.

SEC. 2. Travel Fees and Expenses. - A notary public may
charge travel fees and expenses separate and apart from
the notarial fees prescribed in the preceding section when
traveling to perform a notarial act if the notary public and the
person requesting the notarial act agree prior to the travel.
SEC. 3. Prohibited Fees. - No fee or compensation of any
kind, except those expressly prescribed and allowed herein,
shall be collected or received for any notarial service.
SEC. 4. Payment or Refund of Fees. - A notary public shall
not require payment of any fees specified herein prior to the
performance of a notarial act unless otherwise agreed upon.
Any travel fees and expenses paid to a notary public prior to
the performance of a notarial act are not subject to refund if
the notary public had already traveled but failed to complete
in whole or in part the notarial act for reasons beyond his
control and without negligence on his part.
SEC. 5. Notice of Fees. - A notary public who charges a fee
for notarial services shall issue a receipt registered with the
Bureau of Internal Revenue and keep a journal of notarial
fees. He shall enter in the journal all fees charged for
services rendered.
(b) A notary public shall record in the notarial register the
reasons and circumstances for not completing a notarial act.
(c) A notary public shall record in the notarial register the
circumstances of any request to inspect or copy an entry in
the notarial register, including the requester's name,
address, signature, thumbmark or other recognized identifier,
and evidence of identity. The reasons for refusal to allow
inspection or copying of a journal entry shall also be
recorded.
(d) When the instrument or document is a contract, the
notary public shall keep an original copy thereof as part of
his records and enter in said records a brief description of
the substance thereof and shall give to each entry a
consecutive number, beginning with number one in each
calendar year. He shall also retain a duplicate original copy
for the Clerk of Court.
(e) The notary public shall give to each instrument or
document executed, sworn to, or acknowledged before him a
number corresponding to the one in his register, and shall
also state on the instrument or document the page/s of his
register on which the same is recorded. No blank line shall
be left between entries.

A notary public shall post in a conspicuous place in his office
a complete schedule of chargeable notarial fees.
RULE VI: NOTARIAL REGISTER
SECTION 1. Form of Notarial Register. - (a) A notary public
shall keep, maintain, protect and provide for lawful inspection
as provided in these Rules, a chronological official notarial
register of notarial acts consisting of a permanently bound
book with numbered pages.
(f) In case of a protest of any draft, bill of exchange or
promissory note, the notary public shall make a full and true
record of all proceedings in relation thereto and shall note
therein whether the demand for the sum of money was
made, by whom, when, and where; whether he presented
such draft, bill or note; whether notices were given, to whom
and in what manner; where the same was made, when and
to whom and where directed; and of every other fact
touching the same.

The register shall be kept in books to be furnished by the
Solicitor General to any notary public upon request and upon
payment of the cost thereof. The register shall be duly
paged, and on the first page, the Solicitor General shall
certify the number of pages of which the book consists.
For purposes of this provision, a Memorandum of Agreement
or Understanding may be entered into by the Office of the
Solicitor General and the Office of the Court Administrator.
(b) A notary/ public shall keep only one active notarial
(g) At the end of each week, the notary public shall certify in
his notarial register the number of instruments or documents
executed, sworn to, acknowledged, or protested before him;
or if none, this certificate shall show this fact.
(h) A certified copy of each month's entries and a duplicate
original copy of any instrument acknowledged before the
notary public shall, within the first ten (10) days of the month
following, be forwarded to the Clerk of Court and shall be
under the responsibility of such officer. If there is no entry to
certify for the month, the notary shall forward a statement to
this effect in lieu of certified copies herein required.
SEC. 3. Signatures and Thumbmarks. - At the time of
notarization, the notary's notarial register shall be signed or a
thumb or other mark affixed by each:
(a) principal;
(b) credible witness swearing or affirming to the identity of a
principal; and
(c) witness to a signature by thumb or other mark, or to a
signing by the notary public on behalf of a person physically
unable to sign.
SEC. 4. Inspection, Copying and Disposal. - (a) In the
notary's presence, any person may inspect an entry in the
notarial register, during regular business hours, provided;
(1) the person's identity is personally known to the notary
public or proven through competent evidence of identity as
defined in these Rules;
(2) the person affixes a signature and thumb or other mark or
other recognized identifier, in the notarial .register in a
separate, dated entry;
(3) the person specifies the month, year, type of instrument
or document, and name of the principal in the notarial act or
acts sought; and
(4) the person is shown only the entry or entries specified by
him.
(b) The notarial register may be examined by a law
enforcement officer in the course of an official investigation
or by virtue of a court order.
(c) If the notary public has a reasonable ground to believe
that a person has a criminal intent or wrongful motive in
requesting information from the notarial register, the notary
shall deny access to any entry or entries therein.
SEC. 5. Loss, Destruction or Damage of Notarial Register. -
(a) In case the notarial register is stolen, lost, destroyed,
damaged, or otherwise rendered unusable or illegible as a
record of notarial acts, the notary public shall, within ten (10)
days after informing the appropriate law enforcement agency
in the case of theft or vandalism, notify the Executive Judge
by any means providing a proper receipt or
acknowledgment, including registered mail and also provide
a copy or number of any pertinent police report.
(b) Upon revocation or expiration of a notarial commission,
or death of the notary public, the notarial register and notarial
records shall immediately be delivered to the office of the
Executive Judge.
SEC. 6. Issuance of Certified True Copies. - The notary
public shall supply a certified true copy of the notarial record,
or any part thereof, to any person applying for such copy
upon payment of the legal fees.
RULE VII: SIGNATURE AND SEAL OF NOTARY PUBLIC
SECTION 1. Official Signature. - In notarizing a paper
instrument or document, a notary public shall:
(a) sign by hand on the notarial certificate only the name
indicated and as appearing on the notary's commission;
(b) not sign using a facsimile stamp or printing device; and
(c) affix his official signature only at the time the notarial act
is performed.
SEC. 2. Official Seal. - (a) Every person commissioned as
notary public shall have a seal of office, to be procured at his
own expense, which shall not be possessed or owned by
any other person. It shall be of metal, circular in shape, two
inches in diameter, and shall have the name of the city or
province and the word "Philippines" and his own name on
the margin and the roll of attorney's number on the face
thereof, with the words "notary public" across the center. A
mark, image or impression of such seal shall be made
directly on the paper or parchment on which the writing
appears.
(b) The official seal shall be affixed only at the time the
notarial act is performed and shall be clearly impressed by
the notary public on every page of the instrument or
document notarized.
(c) When not in use, the official seal shall be kept safe and
secure and shall be accessible only to the notary public or
the person duly authorized by him.
(d) Within five (5) days after the official seal of a notary
public is stolen, lost, damaged or other otherwise rendered
unserviceable in affixing a legible image, the notary public,
after informing the appropriate law enforcement agency,
shall notify the Executive Judge in writing, providing proper
receipt or acknowledgment, including registered mail, and in
the event of a crime committed, provide a copy or entry
number of the appropriate police record. Upon receipt of
such notice, if found in order by the Executive Judge, the
latter shall order the notary public to cause notice of such
loss or damage to be published, once a week for three (3)
consecutive weeks, in a newspaper of general circulation in
the city or province where the notary public is commissioned.
Thereafter, the Executive Judge shall issue to the notary
public a new Certificate of Authorization to Purchase a
Notarial Seal.
(e) Within five (5) days after the death or resignation of the
notary public, or the revocation or expiration of a notarial
commission, the official seal shall be surrendered to the
Executive Judge and shall be destroyed or defaced in public
during office hours. In the event that the missing, lost or
damaged seal is later found or surrendered, it shall be
delivered by the notary public to the Executive Judge to be
disposed of in accordance with this section. Failure to effect
such surrender shall constitute contempt of court. In the
event of death of the notary public, the person in possession
of the official seal shall have the duty to surrender it to the
Executive Judge.
SEC. 3. Seal Image. - The notary public shall affix a single,
clear, legible, permanent, and photographically reproducible
mark, image or impression of the official seal beside his
signature on the notarial certificate of a paper instrument or
document.
SEC. 4. Obtaining and Providing Seal. - (a) A vendor or
manufacturer of notarial seals may not sell said product
without a written authorization from the Executive Judge.
(b) Upon written application and after payment of the
application fee, the Executive Judge may issue an
authorization to sell to a vendor or manufacturer of notarial
seals after verification and investigation of the latter's
qualifications. The Executive Judge shall charge an
authorization fee in the amount of Php 4,000 for the vendor
and Php 8,000 for the manufacturer. If a manufacturer is also
a vendor, he shall only pay the manufacturer's authorization
fee.
(c) The authorization shall be in effect for a period of four (4)
years from the date of its issuance and may be renewed by
the Executive Judge for a similar period upon payment of the
authorization fee mentioned in the preceding paragraph.
. (d) A vendor or manufacturer shall not sell a seal to a buyer
except upon submission of a certified copy of the
commission and the Certificate of Authorization to Purchase
a Notarial Seal issued by the Executive Judge. A notary
public obtaining a new seal as a result of change of name public shall submit a signed and dated notice of such fact to
shall present to the vendor or manufacturer a certified copy the Executive Judge.
of the Confirmation of the Change of Name issued by the
Executive Judge. The notary public shall not notarize until:

(e) Only one seal may be sold by a vendor or manufacturer (a) he receives from the Executive Judge a confirmation of
for each Certificate of Authorization to Purchase a Notarial the new name of the notary public and/or change of regular
Seal, place of work or business; and

(f) After the sale, the vendor or manufacturer shall affix a
mark, image or impression of the seal to the Certificate of
Authorization to Purchase a Notarial Seal and submit the
completed Certificate to the Executive Judge. Copies of the
Certificate of Authorization to Purchase a Notarial Seal and
the buyer's commission shall be kept in the files of the
vendor or manufacturer for four (4) years after the sale.
(g) A notary public obtaining a new seal as a result of
change of name shall present to the vendor a certified copy
of the order confirming the change of name issued by the
Executive Judge.
RULE VIII: NOTARIAL CERTIFICATES
SECTION 1. Form of Notarial Certificate. - The notarial form
used for any notarial instrument or document shall conform
to all the requisites prescribed herein, the Rules of Court and
all other provisions of issuances by the Supreme Court and
in applicable laws.
SEC. 2. Contents of the Concluding Part of the Notarial
Certificate. - The notarial certificate shall include the
following:
(a) the name of the notary public as exactly indicated in the
commission;
(b) the serial number of the commission of the notary public;
(c) the words "Notary Public" and the province or city where
the notary public is commissioned, the expiration date of the
commission, the office address of the notary public; and
(b) a new seal bearing the new name has been obtained.
The foregoing notwithstanding, until the aforementioned
steps have been completed, the notary public may continue
to use the former name or regular place of work or business
in performing notarial acts for three (3) months from the date
of the change, which may be extended once for valid and
just cause by the Executive Judge for another period not
exceeding three (3) months.
SEC. 2. Resignation. - A notary public may resign his
commission by personally submitting a written, dated and
signed formal notice to the Executive Judge together with his
notarial seal, notarial register and records. Effective from the
date indicated in the notice, he shall immediately cease to
perform notarial acts. In the event of his incapacity to
personally appear, the submission of the notice may be
performed by his duly authorized representative.
SEC. 3. Publication of Resignation. - The Executive Judge
shall immediately order the Clerk of Court to post in a
conspicuous place in the offices of the Executive Judge and
of the Clerk of Court the names of notaries public who have
resigned their notarial commissions and the effective dates
of their resignation.
RULE XI: REVOCATION OF COMMISSION AND
DISCIPLINARY SANCTIONS
SECTION 1. Revocation and Administrative Sanctions. - (a)
The Executive Judge shall revoke a notarial commission for
any ground on which an application for a commission may
be denied.

(d) the roll of attorney's number, the professional tax receipt (b) In addition, the Executive Judge may revoke the
number and the place and date of issuance thereof, and the commission of, or impose appropriate administrative
IBP membership number. sanctions upon, any notary public who:

RULE IX: CERTIFICATE OF AUTHORITY OF NOTARIES (1) fails to keep a notarial register;
PUBLIC
SECTION 1. Certificate of Authority for a Notarial Act. - A (2) fails to make the proper entry or entries in his notarial
certificate of authority evidencing the authenticity of the register concerning his notarial acts;
official seal and signature of a notary public shall be issued
by the Executive Judge upon request in substantially the (3) fails to send the copy of the entries to the Executive
following form: Judge within the first ten (10) days of the month following;

CERTIFICATE OF AUTHORITY FOR A NOTARIAL ACT (4) fails to affix to acknowledgments the date of expiration of
his commission;
I, (name, title, jurisdiction of the Executive Judge), certify that
(name of notary public), the person named in the seal and (5) fails to submit his notarial register, when filled, to the
signature on the attached document, is a Notary Public in Executive Judge;
and for the (City/Municipality/Province) of the Republic of the
Philippines and authorized to act as such at the time of the (6) fails to make his report, within a reasonable time, to the
document's notarization. Executive Judge concerning the performance of his duties,
as may be required by the judge;
IN WITNESS WHEREOF, I have affixed below my signature
and seal of this office this (date) day of (month) (year). (7) fails to require the presence of a principal at the time of
the notarial act;
_________________
(8) fails to identify a principal on the basis of personal
(official signature) knowledge or competent evidence;

(seal of Executive Judge) (9) executes a false or incomplete certificate under Section
5, Rule IV;
RULE X: CHANGES OF STATUS OF NOTARY PUBLIC
SECTION 1. Change of Name and Address. (10) knowingly performs or fails to perform any other act
prohibited or mandated by these Rules; and
Within ten (10) days after the change of name of the notary
public by court order or by marriage, or after ceasing to (11) commits any other dereliction or act which in the
maintain the regular place of work or business, the notary judgment of the Executive Judge constitutes good cause for
revocation of commission or imposition of administrative
sanction. vii. Amendment to Sec 12(a) of the 2004 Rules on
Notarial Practice, A.M. No. 02-8-13-SC, SC En
(c) Upon verified complaint by an interested, affected or Banc Resolution dated February 19, 2008
aggrieved person, the notary public shall be required to file a
verified answer to the complaint.
A.M. No. 02-8-13-SC February 19, 2008
If the answer of the notary public is not satisfactory, the
Executive Judge shall conduct a summary hearing. If the RE: 2004 RULES ON NOTARIAL PRACTICE -
allegations of the complaint are not proven, the complaint The Court Resolved, upon the recommendation of the Sub
shall be dismissed. If the charges are duly established, the Committee on the Revision of the Rules Governing Notaries
Executive Judge shall impose the appropriate administrative Public, to AMEND Sec. 12 (a). Rule II of the 2004 Rules on
sanctions. In either case, the aggrieved party may appeal the Notarial Practice, to wit:
decision to the Supreme Court for review. Pending the
appeal, an order imposing disciplinary sanctions shall be
immediately executory, unless otherwise ordered by the Sirs/Mesdames:
Supreme Court.
Quoted hereunder, for your information, is a resolution of the
(d) The Executive Judge may motu proprio initiate Court En Banc dated February 19, 2008.
administrative proceedings against a notary public, subject to
the procedures prescribed in paragraph (c) above and
impose the appropriate administrative sanctions on the "A.M. No. 02-8-13-SC-Re: 2004 Rules on Notarial Practice. –
grounds mentioned in the preceding paragraphs (a) and (b). The Court Resolved, upon the recommendation of the Sub
Committee on the Revision of the Rules Governing Notaries
SEC. 2. Supervision and Monitoring of Notaries Public. - The Public, to AMEND Sec. 12 (a). Rule II of the 2004 Rules on
Executive Judge shall at all times exercise supervision over Notarial Practice, to wit:
notaries public and shall closely monitor their activities.
Rule II
SEC. 3. Publication of Revocations and Administrative
Sanctions. - The Executive Judge shall immediately order
the Clerk of Court to post in a conspicuous place in the DEFINITIONS
offices of the Executive Judge and of the Clerk of Court the
names of notaries public who have been administratively xxx
sanctioned or whose notarial commissions have been
revoked.
"Sec. 12. Component Evidence of Identity. The phrase
SEC. 4. Death of Notary Public. - If a notary public dies "competent evidence of identity" refers to the identification of
before fulfilling the obligations in Section 4(e), Rule VI and an individual based on:
Section 2(e), Rule VII, the Executive Judge, upon being
notified of such death, shall forthwith cause compliance with (a) at least one current identification document issued by an
the provisions of these sections. official agency bearing the photograph and signature of the
individual, such as but not limited to, passport, driver’s
RULE XII: SPECIAL PROVISIONS
license, Professional Regulations Commission ID, National
SECTION 1. Punishable Acts. - The Executive Judge shall
Bureau of Investigation clearance, police clearance, postal
cause the prosecution of any person who:
ID, voter’s ID, Barangay certification, Government Service
and Insurance System (GSIS) e-card, Social Security
(a) knowingly acts or otherwise impersonates a notary
System (SSS) card, Philhealth card, senior citizen card,
public;
Overseas Workers Welfare Administration (OWWA) ID,
OFW ID, seaman’s book, alien certificate of
(b) knowingly obtains, conceals, defaces, or destroys the
registration/immigrant certificate of registration, government
seal, notarial register, or official records of a notary public;
office ID, certification from the National Council for the
and
Welfare of Disable Persons (NCWDP), Department of Social
Welfare and Development (DSWD) certification; or
(c) knowingly solicits, coerces, or in any way influences a
notary public to commit official misconduct.
(b) xxxx."
SEC 2. Reports to the Supreme Court. - The Executive
Judge concerned shall submit semestral reports to the
Quisumbing, J., on official leave. Ynares-Santiago, J., on
Supreme Court on discipline and prosecution of notaries
leave.
public.

RULE XIII: REPEALING AND EFFECTIVITY PROVISIONS

SECTION 1. Repeal. - All rules and parts of rules, including B. Ex-Officio Notaries Public
issuances of the Supreme Court inconsistent herewith, are
hereby repealed or accordingly modified. i. Power of Municipal Trial Court and Municipal
Circuit Trial Court judges to act as Notaries
SEC. 2. Effective Date. - These Rules shall take effect on the Public Ex Officio, Supreme Court Circular 1-90,
first day of August 2004, and shall be published in a February 26, 1990
newspaper of general circulation in the Philippines which
provides sufficiently wide circulation.
CIRCULAR NO. 1-90 February 26, 1990
Promulgated this 6th day of July, 2004.

(Sgd.) Davide, Jr. C.J., Puno, Vitug, Panganiban,
Quisumbing, Ynarez-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr.,
Azcuna and Tinga, JJ.
TO: ALL JUDGES OF THE METROPOLITAN TRIAL
COURTS (METC), MUNICIPAL TRIAL COURTS IN CITIES
(MTCC), MUNICIPAL TRIAL COURTS (MTC), MUNICIPAL
CIRCUIT TRIAL COURTS (MCTC) SHARI'A COURTS, AND
THE INTEGRATED BAR OF THE PHILIPPINES (IBP)
SUBJECT: POWER OF THE MUNICIPAL TRIAL COURT
JUDGES AND MUNICIPAL CIRCUIT TRIAL COURT
JUDGES TO ACT AS NOTARIES PUBLIC EX OFFICIO
For the information and guidance of all concerned, quoted
hereunder, is the Resolution of the Court En Banc, dated
December 19, 1989, in Administrative Matter No. 89-11-1303
MTC, "Re: Request for clarification on the power of municipal
trial court judges and municipal circuit trial court judges to act
as Notaries Public Ex Officio":
Acting on a query regarding the power of municipal trial court
judges and municipal circuit trial court judges to act in the
capacity of notaries public ex officio in the light of the 1989
Code of Judicial Conduct, the Court Resolved to issue a
clarification on the matter.
Municipal trial court (MTC) and municipal circuit trial court
(MCTC) judges are empowered to perform the function of
notaries public ex officio under Section 76 of Republic Act
No. 296, as amended (otherwise known as the Judiciary Act
of 1948) and Section 242 of the Revised Administrative
Code. But the Court hereby lays down the following
qualifications on the scope of this power:
MTC and MCTC judges may act as notaries public ex officio
in the notarization of documents connected only with the
exercise of their official functions and duties [Borne v. Mayo,
Adm. Matter No. 1765-CFI, October 17, 1980. 100 SCRA
314; Penera v. Dalocanog, Adm. Matter No. 2113-MJ, April
22, 1981, 104 SCRA 193.] They may not, as notaries public
ex officio, undertake the preparation and acknowledgment of
private documents, contracts and other acts of conveyances
which bear no direct relation to the performance of their
functions as judges. The 1989 Code of Judicial Conduct not
only enjoins judges to regulate their extra-judicial activities in
order to minimize the risk of conflict with their judicial duties,
but also prohibits them from engaging in the private practice
of law (Canon 5 and Rule 5.07).
However, the Court, taking judicial notice of the fact that
there are still municipalities which have neither lawyers nor
notaries public, rules that MTC and MCTC judges assigned
to municipalities or circuits with no lawyers or notaries public
may, in the capacity as notaries public ex officio, perform any
act within the competency of a regular notary public,
provided that: (1) all notarial fees charged be for the account
of the Government and turned over to the municipal
treasurer (Lapena, Jr. vs. Marcos, Adm. Matter No. 1969-MJ,
June 29, 1982, 114 SCRA 572); and, (2) certification be
made in the notarized documents attesting to the lack of any
lawyer or notary public in such municipality or circuit.
Feliciano, J., is on leave
February 26, 1990.
(Sgd.) MARCELO B FERNAN
Chief Justice
ii. Guidelines relative to printing and distribution
of notarial books, 2004 Rules on Notarial
Practice, A.M. No. 02-8-13-SC, SC En Banc
Resolution dated August 15, 2006
Guidelines relative to printing and distribution of
notarial books, 2004 Rules on Notarial Practice, A.M. No.
02-8-13-SC, SC En Banc Resolution dated August 15,
2006
Re: 2004 Rules on Notarial Practice
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this
Court dated AUG 15 2006.
“A.M. No. 02-8-13-SC.- Re: 2004 Rules on Notarial
Practice.-
The Court Resolved to
(a) APPROVE the Proposed Guidelines in the
Implementation of the Provisions of the Memorandum of
Agreement between the Office of the Court Administrator
and the Office of the Solicitor General relative to printing and
distribution of Notarial Books, to wit:
1. Notaries public who render legal and notarial services
within the National Capital Judicial Region shall secure their
notarial registers from the Property Division, Office of the
Administrative Services of the Office of the Court
Administrator (OCA).
2. Notaries public in other judicial regions shall secure their
notarial registers from the Office of the Clerk of Court (OCC)
of the Regional Trial Court (RTC) of the city or province
under the supervision of the Executive Judge who issued
their respective notarial commissions. However, they may
also secure notarial registers from the Office of the Court
Administrator.
3. Notarial registers shall be available at P1,200.00[1][1]
each. Said amount shall cover only the costs of printing and
binding of the notarial registers exclusive of shipping charges
when sold in the provinces. Payments shall be made either
to the Cash Division, Financial Management Office, OCA, or
to the Clerk of Court/accountable officer in the OCC of the
RTC, as the case may be.
a. The amount collected shall be receipted and deposited to
a separate account of the fiduciary fund to be known as the
“Notarial Register Fund” (NRF).
b. The Cash Division, FMO, OCA, shall maintain with the
Land Bank of the Philippines a separate special account of
the fiduciary fund specifically for the NRF. A separate
cashbook shall also be kept and maintained for the
fund. Withdrawals of deposits shall be made only upon
authorization or approval by the Chief Justice or his duly
authorized representative.
c. The Court Administrator and the Financial Office of the
OCA shall be the authorized signatories for this fund.
4. In view of the current unavailability of notarial registers,
notaries public shall be allowed to use the temporary form
attached hereto. The notary public concerned shall file a
written request to use the improvised form with the executive
judge that issued his commission. A copy of his current
commission shall be attached to such request.
The notaries public who have been authorized to use such
forms shall have them book-bound and initialed on each and
every page by the executive judge before whom the request
was filed. Each bound copy shall have a maximum of 106
pages and shall be treated and used in the same manner as
the new notarial book.
Each request shall be limited to one bound copy. Should the
bound copy be used up before the new notarial books are
available, the notary public concerned may request anew for
the use of bound temporary forms. The use of bound
temporary forms shall end when the new notarial books are
available but, upon written request, the executive judge may
allow the notary public to use up the bound temporary forms.
5. The OCA shall, within the first ten (10) days of the first
month of every quarter remit to the Office of the Solicitor
General an amount equivalent to 10% of the gross
collections during the preceding quarter as the share of the
OSG in the sale of the notarial registers.

6. The printed certification of the Court Administrator as to

the number of pages of each notarial register shall be
countersigned by the following:

a. In the National Capital Judicial Region, the official of the

Office of the Court Administrator authorized by the Court
Administrator to so countersign; and

b. In the case of the other judicial regions, the Clerk of Court

of the Regional Trial Court of the city or province where such
book has been obtained for cost.

7. The Supreme Court Printing Office shall print the notarial

registers. In the event the Printing Office cannot meet the
requirements of the OCA, and subject to Republic Act No.
9184 (Government Procurement Reform Act), its
implementing rules and regulations, and existing Supreme
Court issuances on procurement, the Court Administrator
may contract out the printing of notarial registers to the
following printers in the following order:

a. UP Printing Services
b. The National Printing Office, or
c. Private printing firm

The OCA shall resort to the third option only if the first two
printers can not accommodate the requirements of the Court.
After the approval by the Court of these guidelines, the OCA
shall disseminate the same through a circular.

(b) DENY for lack of merit the motion filed by Chief Public
Attorney Persida V. Rueda-Acosta, praying for a
reconsideration of the resolution of January 31, 2006 which
denied her request for the exemption of PAO lawyers from
the payment of the fees for notarial commission and for the
exemption of their clients from the payment of filing fees;

(c) NOTE the letter dated September 5, 2005 of Mr.

Prescillano Y. Aguinias, Jr.;

(d) CONFIRM the opinions of then Court Administrator

Presbitero J. Velasco, Jr. and Deputy Court Administrator
Jose P. Perez that the Court does not render advisory
opinions;

(e) INFORM Mr. Agunias, Jr. that neither does the

Subcommittee on Revision of Rules Governing Notaries
Public render advisory opinions;

(f) AUTHORIZE the Clerks of Court of the Regional Trial

Courts to notarize not only documents relating to the
exercise of their official functions but also private documents,
subject to the following conditions: (i) all notarial fees
charged in accordance with Section 7(o) of Rule 141 of the
Rules of Court, and, with respect to private documents, in
accordance with the notarial fee that the Supreme Court may
prescribe in compliance with Section 1, Rule V of the 2004
Rules on Notarial Practice, shall be for the account of the
Judiciary and (ii) they certify in the notarized documents that
there are no notaries public within the territorial jurisdiction of
the Regional Trial Court;

(g) DIRECT the Court Administrator to issue a circular for the

purpose of implementing the above authority; and

(h) ADOPT a consolidated and uniform rate of fees for

notarial services.” Corona, J., on leave. Azcuna, J., abroad
on official business.

Very truly yours,

(SGD.) MA. LUISA D. VILLARAMA
Clerk of Court
A.M. No. P-02-1644
ARNEL S. CRUZ, complainant,
vs.
ATTY. LUNINGNING Y. CENTRON, Acting Clerk of Court, RTC-
OCC, Calapan City, respondent.
November 11, 2004 In a Compliance dated May 3, 2004, respondent explained that her
failure to timely file her manifestation was brought about by her heavy
volume of work and enormous responsibility as Clerk of Court of the
Regional Trial Court of Calapan City. She manifested her desire to
submit the instant case for resolution on the basis of the pleadings
filed.

We agree with the findings and recommendation of the OCA.

RESOLUTION

In administrative cases for disbarment or suspension against lawyers,

AUSTRIA-MARTINEZ, J.:
Before us is an administrative matter which stemmed from a letter-
complaint dated January 2, 2001, originally filed with the Office of the
Ombudsman, by Arnel S. Cruz against Atty. Luningning Y. Centron,
Clerk of Court VI, Regional Trial Court, Calapan City, Oriental Mindoro,
for acts constitutive of gross misconduct.
In a letter dated January 26, 2001, the Office of the Deputy
Ombudsman for Luzon referred the instant matter to the Office of the
1
Court Administrator (OCA) of this Court.
Complainant alleges: Atty. Centron assisted a certain Gloria Logdat
and Conchita de la Cruz in consummating the sale of a parcel of land
covered by Original Certificate of Title (OCT) No. 2186, in the name of
one Joaquina Jabat. Respondent’s assistance consisted in preparing
and notarizing the documents of sale. The said sale is illegal because
the property covered by the sale is still the subject of "reconstitution
and Extra-Judicial Settlement among the heirs." As a result of the
illegal sale, Logdat and de la Cruz are charged with estafa through
falsification of public documents. Respondent took advantage of her
being a lawyer to solicit the trust and confidence of the buyers of the
subject parcel of land. Respondent is involved in the disappearance of
OCT No. 2186, and she refuses to surrender the title which is in the
2 7
possession of one of her relatives. Complainant prays that respondent
be disbarred and removed from office.
the quantum of proof required is clearly preponderant evidence and the
4
burden of proof rests upon the complainant.
In the present case, we find that complainant failed to present clear
and preponderant evidence to show that respondent had direct and
instrumental participation in the preparation of documents and the
subsequent sale of the subject parcel of land covered by OCT No.
2186. Aside from the deed of sale covering the subject parcel of land
which was notarized by respondent, no competent evidence was
shown that would directly link her to the said sale. While it may be
logical to assume that respondent was the one who prepared the deed
of sale since she was the one who notarized it, we cannot give
evidentiary weight to such a supposition in the absence of any
evidence to support it. Moreover, complainant’s allegation that
respondent influenced the buyers of the subject parcel of land is
contradicted by the sworn affidavit of Adelfa Manes, who is one of the
buyers of the disputed piece of land. Manes attested to the fact that
respondent did not convince nor influence them in buying the subject
property. Likewise, we find no competent evidence to prove that
respondent is responsible for the alleged loss of the owner’s duplicate
copy of OCT No. 2186.
Nonetheless, we find that respondent is guilty of violating Section 41
5 6
(as amended by Section 2 of R. A. No. 6733) and Section 242 of the
8
Revised Administrative Code, in relation to Sections G, M and
9
N, Chapter VIII of the Manual for Clerks of Court.

In compliance with an Indorsement dated September 24, 2001 of the
OCA, respondent filed her Comment dated October 29, 2001, denying
involvement in the preparation of the documents and in the
consummation of the sale of the parcel of land covered by OCT No.
2186. Respondent claims that her only participation in the said sale is
that she was the one who notarized the deed of sale on account that
she was requested by the parties to notarize the same because they
cannot afford the notarial fee being charged by the notary public they
earlier approached. Respondent also denies any involvement in the
alleged loss of the owner’s duplicate copy of OCT No. 2186. She
claims that Conchita Acyatan de la Cruz and Gloria Acyatan Salamat-
Logdat gave the said certificate of title to their lawyer, Atty. Apolonia A.
3 was found guilty of notarizing various documents and administering
Comia-Soguilon.
On July 26, 2002, the OCA submitted a report finding the complaint to
be without basis. However, the OCA observed that respondent violated
the provisions of Section 242 of the Revised Administrative Code as
well as Section G, Chapter VIII of the Manual for Clerks of Court when
she notarized a deed of conveyance, a document which is not
connected with the exercise of her official functions and duties as Ex-
Officio Notary Public. Accordingly, the OCA recommended that
respondent be fined in the amount of P2,000.00 and sternly warned
that a repetition of the same or similar act(s) in the future will be dealt
with more severely.
Under these provisions, Clerks of Court are notaries public ex officio,
and may thus notarize documents or administer oaths but only when
the matter is related to the exercise of their official functions. As we
10
held in Astorga vs. Solas, clerks of court should not, in their ex-officio
capacity, take part in the execution of private documents bearing no
11
relation at all to their official functions. In the present case, it is not
within respondent’s competence, as it is not part of her official function
and duty, to notarize the subject deed of sale. Respondent is guilty of
abuse of authority.
12
In Astorga, we imposed a fine of P5,000.00 on a clerk of court who
oaths on matters which are alien to his official duties. In the present
case, it appearing that this is respondent’s first offense of this nature
and that she has only notarized one document, we find the OCA’s
recommended penalty of a fine of P2,000.00 commensurate to the
offense committed.
WHEREFORE, Atty. Luningning Y. Centron, Clerk of Court, Regional
Trial Court of Calapan City, Oriental Mindoro, is found guilty of abuse
of authority and is hereby ORDERED to pay a FINE of P2,000.00. She
is STERNLY WARNED that a repetition of the same or similar acts in
the future shall be dealt with more severely.

SO ORDERED.
In a resolution dated February 17, 2003, we resolved to require the
parties to manifest within ten days from notice if they are willing to
submit the matter for resolution on the basis of the pleadings filed. In
compliance therewith, complainant filed a manifestation dated March
28, 2003, indicating his desire to submit the case for resolution on the
basis of the pleadings filed. Respondent failed to file the required
manifestation within the period allowed by the Court.

In a Resolution dated March 8, 2004, we required respondent to show

cause why she should not be disciplinarily dealt with or held in
contempt for her failure to file the required manifestation.
ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B.
TIGNO, petitioners,
vs.
SPOUSES ESTAFINO AQUINO and FLORENTINA AQUINO and the
HONORABLE COURT OF APPEALS, respondents.
DECISION
TINGA, J.:
The controversy in the present petition hinges on the admissibility of a
single document, a deed of sale involving interest over real property,
notarized by a person of questionable capacity. The assailed ruling of
the Court of Appeals, which overturned the findings of fact of the
Regional Trial Court, relied primarily on the presumption of regularity
attaching to notarized documents with respect to its due execution. We
conclude instead that the document has not been duly notarized and
accordingly reverse the Court of Appeals.
The facts are as follow:
On 11 January 1980, respondent spouses Estafino and Florentina
Aquino (the Aquinos) filed a complaint for enforcement of contract and
1 promulgated a Decision reversing and setting aside the RTC
damages against Isidro Bustria (Bustria). The complaint sought to
enforce an alleged sale by Bustria to the Aquinos of a one hundred
twenty thousand (120,000) square meter fishpond located in Dasci,
Pangasinan. The property was not registered either under the Land
Registration Act or under the Spanish Mortgage Law, though
2 jurat did not render the instrument invalid; and that the non-assistance
registrable under Act No. 3344. The conveyance was covered by a
Deed of Sale dated 2 September 1978.
Eventually, Bustria and the Aquinos entered into a compromise
agreement, whereby Bustria agreed to recognize the validity of the
sale, and the Aquinos in turn agreed to grant to Bustria the right to
repurchase the same property after the lapse of seven (7) years.
Upon submission, the Court of First Instance of Pangasinan, Branch
VII, approved and incorporated the compromise agreement in a
Decision which it rendered on 7 September 1981.
3 to the Court of Appeals when it admitted the Deed of Sale. He also
Bustria died in October of 1986. On 1 December 1989, petitioner
Zenaida B. Tigno (Tigno), in substitution of her deceased father Isidro
4
Bustria, attempted to repurchase the property by filing a Motion for
Consignation. She deposited the amount of Two Hundred Thirty
Thousand Pesos (P200,000.00) with the trial court, now Regional Trial
Court (RTC), Branch 55 at Alaminos, Pangasinan. On 18 December
1989, the Aquinos filed an opposition, arguing that the right to
repurchase was not yet demandable and that Tigno had failed to make
a tender of payment. In an Order dated 10 October 1999, the RTC
5
denied the Motion for Consignation.
In June of 1991, Tigno filed a Motion for a Writ of Execution, which was
likewise opposed by the Aquinos, and denied by the RTC. Then, on 6
September 1991, Tigno filed an action for Revival of
6
Judgment, seeking the revival of the decision in Civil Case No. A-
7
1257, so that it could be executed accordingly. The Aquinos filed an
answer, wherein they alleged that Bustria had sold his right to
repurchase the property to them in a deed of sale dated 17 October
8
1985.
Among the witnesses presented by the Aquinos during trial were Jesus
De Francia (De Francia), the instrumental witness to the deed of sale,
and former Judge Franklin Cariño (Judge Cariño), who notarized the
same. These two witnesses testified as to the occasion of the
execution and signing of the deed of sale by Bustria. Thereafter, in
their Formal Offer of Documentary Evidence, the Aquinos offered for
admission as their Exhibit No. "8," the deed of sale (Deed of
9
Sale) purportedly executed by Bustria. The admission of the Deed of
Sale was objected to by Tigno on the ground that it was a false and
fraudulent document which had not been acknowledged by Bustria as
his own; and that its existence was suspicious, considering that it had
been previously unknown, and not even presented by the Aquinos
10
when they opposed Tigno's previous Motion for Consignation.
In an Order dated 6 April 1994, the RTC refused to admit the Deed of
11
Sale in evidence. A Motion for Reconsideration praying for the
12
admission of said exhibit was denied in an Order dated 27 April 1994.
Then, on 18 August 1994, a Decision was rendered by the RTC in
favor of Tigno. The RTC therein expressed doubts as to the
authenticity of the Deed of Sale, characterizing the testimonies of De
13
Francia and Cariño as conflicting. The RTC likewise observed that
nowhere in the alleged deed of sale was there any statement that it
14
was acknowledged by Bustria; that it was suspicious that Bustria was
not assisted or represented by his counsel in connection with the
15
preparation and execution of the deed of sale or that Aquino had
raised the matter of the deed of sale in his previous Opposition to the
16
Motion for Consignation. The RTC then stressed that the previous
Motion for Execution lodged by Tigno had to be denied since more
than five (5) years had elapsed from the date the judgment in Civil
Case No. A-1257 had become final and executory; but the judgment
could be revived by action such as the instant complaint. Accordingly,
the RTC ordered the revival of the judgment dated 7 September 1981
17
in Civil Case No. A-1257.
18
The Aquinos interposed an appeal to the Court of Appeals. In the
meantime, the RTC allowed the execution pending appeal of its
19
Decision. On 23 December 1996, the Court of Appeals Tenth Division
20
Decision. The appellate court ratiocinated that there were no material
or substantial inconsistencies between the testimonies of Cariño and
De Francia that would taint the document with doubtful authenticity;
that the absence of the acknowledgment and substitution instead of a
or representation of Bustria by counsel did not render the document
21
null and ineffective. It was noted that a notarized document carried in
its favor the presumption of regularity with respect to its due execution,
and that there must be clear, convincing and more than merely
preponderant evidence to contradict the same. Accordingly, the Court
of Appeals held that the RTC erred in refusing to admit the Deed of
Sale, and that the document extinguished the right of Bustria's heirs to
repurchase the property.
After the Court of Appeals denied Tigno's Motion for
22
Reconsideration, the present petition was filed before this Court.
Tigno imputes grave abuse of discretion and misappreciation of facts
argues that the appellate court should have declared the Deed of Sale
as a false, fraudulent and unreliable document not supported by any
consideration at all.
The general thrusts of the arguments posed by Tigno are factually
based. As such, they could normally lead to the dismissal of this
Petition for Review. However, while this Court is not ordinarily a trier of
23
facts, factual review may be warranted in instances when the findings
of the trial court and the intermediate appellate court are contrary to
24
each other. Moreover, petitioner raises a substantial argument
regarding the capacity of the notary public, Judge Cariño, to notarize
the document. The Court of Appeals was unfortunately silent on that
matter, but this Court will take it up with definitiveness.
The notarial certification of the Deed of Sale reads as follows:
ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES)
PROVINCE OF PANGASINAN) S.S.
MUNICIPALITY OF ALAMINOS)
SUBSCRIBED AND SWORN TO before me this 17th day of October
1985 at Alaminos, Pangasinan both parties known to me to be the
same parties who executed the foregoing instrument.
FRANKLIN CARIÑO
Ex-Officio Notary Public
Judge, M.T.C.

Alaminos, Pangasinan
There are palpable errors in this certification. Most glaringly, the
document is certified by way of a jurat instead of an acknowledgment.
A jurat is a distinct creature from an acknowledgment. An
acknowledgment is the act of one who has executed a deed in going
before some competent officer or court and declaring it to be his act or
deed; while a jurat is that part of an affidavit where the officer certifies
25
that the same was sworn before him. Under Section 127 of the Land
26
Registration Act, which has been replicated in Section 112 of
27
Presidential Decree No. 1529, the Deed of Sale should have been
28
acknowledged before a notary public.
But there is an even more substantial defect in the notarization, one
which is determinative of this petition. This pertains to the authority of
Judge Franklin Cariño to notarize the Deed of Sale.
It is undisputed that Franklin Cariño at the time of the notarization of
the Deed of Sale, was a sitting judge of the Metropolitan Trial Court of
29 30
Alaminos. Petitioners point out, citing Tabao v. Asis, that municipal
judges may not undertake the preparation and acknowledgment of
private documents, contracts, and other acts of conveyance which bear
no relation to the performance of their functions as judges. In
31
response, respondents claim that the prohibition imposed on municipal
court judges from notarizing documents took effect only in December
of 1989, or four years after the Deed of Sale was notarized by Cariño.
32
Respondent's contention is erroneous. Municipal Trial Court (MTC)
and Municipal Circuit Trial Court (MCTC) judges are empowered to
perform the functions of notaries public ex officio under Section 76 of
Republic Act No. 296, as amended (otherwise known as the Judiciary
Act of 1948) and Section 242 of the Revised Administrative
33 34
Code. However, as far back as 1980 in Borre v. Moya, the Court
explicitly declared that municipal court judges such as Cariño may
notarize only documents connected with the exercise of their official
35
duties. The Deed of Sale was not connected with any official duties of
Judge Cariño, and there was no reason for him to notarize it. Our
observations as to the errant judge in Borre are pertinent in this case,
considering that Judge Cariño identified himself in the Deed of Sale as
"Ex-Officio Notary Public, Judge, MTC:"
[A notary ex officio] should not compete with private law practitioners or
regular notaries in transacting legal conveyancing business.
In the instant case, it was not proper that a city judge should notarize
documents involving private transactions and sign the document in this
wise: "GUMERSINDO ARCILLA, Notary Public Ex-Officio, City Judge"
(p. 16, Rollo, Annex D of Complaint). In doing so, he obliterated the
36
distinction between a regular notary and a notary ex officio.
There are possible grounds for leniency in connection with this matter,
as Supreme Court Circular No. I-90 permits notaries public ex officio to
perform any act within the competency of a regular notary public
provided that certification be made in the notarized documents
attesting to the lack of any lawyer or notary public in such municipality
or circuit. Indeed, it is only when there are no lawyers or notaries public
37
that the exception applies. The facts of this case do not warrant a
relaxed attitude towards Judge Cariño's improper notarial activity.
There was no such certification in the Deed of Sale. Even if one was
produced, we would be hard put to accept the veracity of its contents,
38
considering that Alaminos, Pangasinan, now a city, was even then
not an isolated backwater town and had its fair share of practicing
lawyers.
There may be sufficient ground to call to task Judge Cariño, who
ceased being a judge in 1986, for his improper notarial activity.
Perhaps though, formal sanction may no longer be appropriate
considering Judge Cariño's advanced age, assuming he is still
39
alive. However, this Decision should again serve as an affirmation of
the rule prohibiting municipal judges from notarizing documents not
connected with the exercise of their official duties, subject to the
exceptions laid down in Circular No. 1-90.
Most crucially for this case, we should deem the Deed of Sale as not
having been notarized at all. The validity of a notarial certification
necessarily derives from the authority of the notarial officer. If the
notary public does not have the capacity to notarize a document, but
does so anyway, then the document should be treated as unnotarized.
The rule may strike as rather harsh, and perhaps may prove to be
prejudicial to parties in good faith relying on the proferred authority of
the notary public or the person pretending to be one. Still, to admit
otherwise would render merely officious the elaborate process devised
by this Court in order that a lawyer may receive a notarial commission.
Without such a rule, the notarization of a document by a duly appointed
notary public will have the same legal effect as one accomplished by a
non-lawyer engaged in pretense.
The notarization of a document carries considerable legal effect.
Notarization of a private document converts such document into a
public one, and renders it admissible in court without further proof of its
40
authenticity. Thus, notarization is not an empty routine; to the
contrary, it engages public interest in a substantial degree and the
protection of that interest requires preventing those who are not
qualified or authorized to act as notaries public from imposing upon the
41
public and the courts and administrative offices generally.
On the other hand, what then is the effect on the Deed of Sale if it was
not notarized? True enough, from a civil law perspective, the absence
of notarization of the Deed of Sale would not necessarily invalidate the
transaction evidenced therein. Article 1358 of the Civil Code requires
that the form of a contract that transmits or extinguishes real rights
over immovable property should be in a public document, yet it is also
an accepted rule that the failure to observe the proper form does not
render the transaction invalid. Thus, it has been uniformly held that the
form required in Article 1358 is not essential to the validity or
enforceability of the transaction, but required merely for
42
convenience. We have even affirmed that a sale of real property
though not consigned in a public instrument or formal writing, is
nevertheless valid and binding among the parties, for the time-honored
rule is that even a verbal contract of sale or real estate produces legal
43
effects between the parties.
Still, the Court has to reckon with the implications of the lack of valid
notarization of the Deed of Sale from the perspective of the law on
evidence. After all, the case rests on the admissibility of the Deed of
Sale.
Clearly, the presumption of regularity relied upon by the Court of
Appeals no longer holds true since the Deed of Sale is not a notarized
document. Its proper probative value is governed by the Rules of
Court. Section 19, Rule 132 states:
Section 19. Classes of documents.—For the purpose of their
presentation in evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers,
whether of the Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public except last wills
and testaments; and
(c) Public records, kept in the Philippines, of private documents
required by law to be entered therein.
All other writings are private. (Emphasis supplied.)
The Deed of Sale, invalidly notarized as it was, does not fall under the
enumeration of public documents; hence, it must be considered a
private document. The nullity of the alleged or attempted notarization
performed by Judge Cariño is sufficient to exclude the document in
question from the class of public documents. Even assuming that the
Deed of Sale was validly notarized, it would still be classified as a
private document, since it was not properly acknowledged, but merely
subscribed and sworn to by way of jurat.
Being a private document, the Deed of Sale is now subject to the
requirement of proof under Section 20, Rule 132, which states:
Section 20. Proof of private document.—Before any private document
offered as authentic is received in evidence, its due execution and
authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of
the maker.
Any other private document need only be identified as that which is
claimed to be.
The Deed of Sale was offered in evidence as authentic by the Aquinos,
who likewise insist that its enforceability militates against Tigno's claim.
Correspondingly, the burden falls upon the Aquinos to prove its
authenticity and due execution. The Court of Appeals clearly erred in
not appreciating the Deed of Sale as a private document and in
applying the presumption of regularity that attaches only to duly
notarized documents, as distinguished from private documents.
Did the RTC err then in refusing to admit the Deed of Sale? We hold
that it did not. Section 20, Rule 132 provides ample discretion on the
trier of fact before it may choose to receive the private document in
evidence. The RTC wisely refused to admit the Deed of Sale, taking
great lengths as it did to explain its doubts as to its veracity. The RTC
was not convinced of the proffered proof by the Aquinos, and the
exercise of its sound discretion as the primary trier of fact warrants due
respect.
The most telling observation of the RTC relates to the fact that for the
very first time respondents alleged the existence of the Deed of Sale
when they filed their answer to petitioner's current action to revive
44
judgment. Prior to the initiation of the present action, Tigno had tried
to operationalize and implement the Compromise Agreement through
two judicial means: consignation and execution of judgment. The
Aquinos duly opposed these prior attempts of the petitioner to exercise
the right to repurchase, but they did not raise then the claim that such
right to repurchase was already extinguished by the Deed of Sale.
Tigno attempted to exercise the right to repurchase only a few years
after the execution of the Deed of Sale to which respondents
themselves were signatories. Thus, it is incredulous that the Aquinos
did not invoke the Deed of Sale when they opposed in court petitioner's
successive attempts at consignation and execution of judgment. The
Deed of Sale, if in existence and valid, would have already precluded
Tigno's causes of action for either consignation or execution of
judgment. The only believable conclusion, as drawn by the RTC, was
that the Deed of Sale had yet to be created when petitioner moved in
1990 for consignation and execution of judgment—an existential
anomaly if we were to agree with the respondents that such document
had been signed and notarized back in 1985.
The dubiousness in origin of the Deed of Sale is not alleviated by the
other observations of the RTC. It also pointed to certain incredible
aspects in the Aquinos' tale of events. It noted that no receipts were
ever presented by the respondents to evidence actual payment of
consideration by them to Bustria, despite the allegation of the
45
respondents that the amount was covered by seven (7) receipts. The
Aquinos claimed that Bustria kept all the receipts, an assertion which
the RTC found as unbelievable, citing ordinary human nature to ask for
46
receipts for significant amounts given and to keep the same. In itself,
the absence of receipts, or any proof of consideration, would not be
conclusive since consideration is always presumed. However, given
the totality of the circumstances surrounding this case, the absence of
such proof further militates against the claims of the Aquinos.
We can appreciate in a similar vein the observation of the Court of
Appeals that Bustria did not bother to seek his lawyer's assistance as
regards the execution of the Deed of Sale, considering that the subject
property had previously been fiercely litigated. Although the Court of
Appeals was correct in ruling that the document would not be rendered
null or ineffective due to the lack of assistance of counsel, the
implausibility of the scenario strikes as odd and therefore reinforces the
version found by the RTC as credible.
The Court likewise has its own observations on the record that affirm
the doubts raised by the Court of Appeals. Isidro Bustria, who would
die in 1986, was already ninety-three (93) years old when he allegedly
signed the Deed of Sale in 1985. Still, the Aquinos asserted before the
RTC that Bustria traveled unaccompanied from his home in Dasol,
Pangasinan, passing through two towns to Alaminos, to execute the
Deed of Sale. Without discrediting the accomplishments of
nonagenarians capable of great physical feats, it should be
acknowledged as a matter of general assumption that persons of
Bustria's age are typically sedentary and rarely so foolhardy as to insist
on traveling significant distances alone.
Also of note is the fact that there are glaring differences as to the
alleged signature of Bustria on the Deed of Sale and as it otherwise
appears on the judicial record. Bustria's signature in the 1981
Compromise Agreement is noticeably shaky which is not surprising,
considering that it was subscribed when Bustria was eighty-nine (89)
years old. However, Bustria's signature on the Deed of Sale, which if
genuine was affixed when he was already ninety-three (93) years old,
is remarkably steady in its strokes. There are also other evident
differences between Bustria's signature on the Deed of Sale and on
other documents on the record.
Admittedly, these doubts cast above arise in chief from an appreciation
of circumstantial evidence. These have to be weighed against the
findings of the Court of Appeals that the fact that Bustria signed the
Deed of Sale was established by the respective testimonies of
witnesses De Francia and Judge Cariño. In its own appreciation of
these testimonies, the RTC alluded to notable inconsistencies in their
testimonies. As a final measure of analysis, the Court shall now
examine whether the appellate court was in error in reversing the
conclusion of the RTC on these testimonies.
The inconsistencies cited by the RTC were that De Francia testified
that Judge Cariño himself prepared and typed the Deed of Sale in his
47
office, where the document was signed, while Judge Cariño testified
that he did not type the Deed of Sale since it was already prepared
48
when the parties arrived at his office for the signing. On this point, the
Court of Appeals stated with utter nonchalance that a perusal of the
record revealed no material or substantial inconsistencies between the
testimonies of Judge Cariño and De Francia.
Strangely, the appellate court made no comment as to the
inconsistency pointed out by the RTC as to who prepared the Deed of
Sale. If the only point of consideration was the due execution of the
Deed of Sale, then the Court of Appeals should have properly come
out with its finding. Other variances aside, there are no contradictions
in the testimonies of Judge Cariño and De Francia on the question of
whether or not Bustria signed the Deed of Sale.
However, as earlier established, the Deed of Sale is a private
document. Thus, not only the due execution of the document must be
proven but also its authenticity. This factor was not duly considered by
the Court of Appeals. The testimonies of Judge Cariño and De Francia
now become material not only to establish due execution, but also the
authenticity of the Deed of Sale. And on this point, the inconsistencies
pointed out by the RTC become crucial.
The matter of authenticity of the Deed of Sale being disputed, the
identity of the progenitor of this all-important document is a material
evidentiary point. It is disconcerting that the very two witnesses of the
respondent offered to prove the Deed of Sale, flatly contradict each
other on the basis of their own personal and sensory knowledge.
Worse, the purported author of the Deed of Sale disavowed having
drafted the document, notwithstanding the contrary testimony
grounded on personal knowledge by the documentary witness.
Establishing the identity of the person who wrote the Deed of Sale
would not ordinarily be necessary to establish the validity of the
transaction it covers. However, since it is the authenticity of the
document itself that is disputed, then the opposing testimonies on that
point by the material witnesses properly raises questions about the due
execution of the document itself. The inconsistencies in the testimonies
of Judge Cariño and De Francia are irreconcilable. It is not possible to
affirm the testimony of either without denigrating the competence and
credibility of the other as a witness. If Judge Cariño was truthful in
testifying that he did not write the Deed of Sale, then doubt can be cast
as to the reliability of the notarial witness De Francia. It takes a leap of
imagination, a high level of gumption, and perverse deliberation for one
to erroneously assert, under oath and with particularities, that a person
drafted a particular document in his presence.

However, if we were to instead believe De Francia, then the integrity of

the notary public, Judge Cariño, would be obviously compromised.
Assuming that Judge Cariño had indeed authored the Deed of Sale, it
would indeed be odd that he would not remember having written the
document himself yet sufficiently recall notarizing the same. If his
testimony as to authorship of the document is deemed as dubious,
then there is all the reason to make a similar assumption as to his
testimony on the notarization of the Deed of Sale.

These inconsistencies are not of consequence because there is need

to indubitably establish the author of the Deed of Sale. They are
important because they cast doubt on the credibility of those witnesses
of the Aquinos, presented as they were to attest to the due execution
and authenticity of the Deed of Sale. The Court of Appeals was clearly
in error in peremptorily disregarding this observation of the RTC.

As a result, we are less willing than the Court of Appeals to impute

conclusive value to the testimonies of de Francia and Judge Cariño.
The totality of the picture leads us to agree with the trial court that the
Deed of Sale is ineluctably dubious in origin and in execution. The
Court deems as correct the refusal of the RTC to admit the Deed of
Sale, since its due execution and authenticity have not been proven.
The evidence pointing to the non-existence of such a transaction is so
clear and convincing that it is sufficient even to rebut the typical
presumption of regularity arising from the due execution of notarial
documents. However, for the reasons stated earlier, the Deed of Sale
is ineluctably an unnotarized document. And the lower court had more
than sufficient basis to conclude that it is a spurious document.

Since the validity of the Deed of Sale has been successfully assailed,
Tigno's right to repurchase was not extinguished at the time of the filing
of the Petition for revival of judgment, as correctly concluded by the
RTC. The Court of Appeals being in error when it concluded otherwise,
the reinstatement of the RTC Decision is warranted.

WHEREFORE, the Petition is GRANTED. The assailed Decision dated

23 December 1996 and Resolution dated 9 June 1997 of the Court of
Appeals in CA-G.R. CV No. 49879 is REVERSED, and the Decision
dated 18 August 1994 of the Regional Trial Court of Alaminos,
Pangasinan, Branch 55, in Civil Case No. A-1918 is REINSTATED.
Costs against respondents.

SO ORDERED.
[A.M. NO. MTJ-99-1204: July 28, 2008]
(Formerly OCA IPI No. 97-355-MTJ)
GERONIMO C. FUENTES, Complainant, v. JUDGE ROMUALDO G.
BUNO, Presiding Judge, Municipal Circuit Trial Court (MCTC),
Talibon-Getafe, Bohol, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
This administrative case against Judge Romualdo G. Buno of the
TH
4 Municipal Circuit Trial Court (MCTC), Talibon-Getafe, Bohol,
stemmed from a complaint filed by Geronimo C. Fuentes charging him
with abuse of discretion and authority and graft and corruption.
In his complaint, Geronimo Fuentes alleged that he is one of the nine
(9) heirs of Bernardo Fuentes, their father, who owned an agricultural
land located at San Jose, Talibon, Bohol, and that respondent judge
prepared and notarized an "Extra-Judicial Partition with Simultaneous
Absolute Deed of Sale" of the said agricultural land, executed by
complainant's mother Eulalia Credo Vda. de Fuentes, widow of
Bernardo Fuentes, and Alejandro Fuentes, on his own behalf and on
behalf of his brothers and sisters, including Geronimo Fuentes, as
heirs/vendors and one Ma. Indira A. Auxtero, as vendee; that in the
aforesaid document, the aforementioned agricultural land was sold,
transferred/conveyed by the heirs/vendors to the vendee despite the
fact that in his Special Power of Attorney (SPA), he merely appointed
his brother, Alejandro Fuentes to mortgage said agricultural land but
not to partition, much more to sell the same. According to complainant
Geronimo Fuentes respondent judge notarized said document as ex-
officio Notary Public, thereby abusing his discretion and authority as
well as committing graft and corruption.
In his 1st Indorsement dated December 2, 1997, the then Court
Administrator required the respondent to file his comment on the
complaint within ten days. In compliance thereto respondent judge
submitted his answer, which prayed for the dismissal of the complaint.
He admitted that on December 24, 1996, while he was the Presiding
Judge of the MCTC, Talibon-Getafe, stationed at Talibon, Bohol, he
notarized an Extra-Judicial Partition of Real Property with
Simultaneous Absolute Deed of Sale, described as Document No.
1158, Series of 1996. He explained his reasons and related the
circumstances surrounding the case as follows:
1. That in the last week of the month of September, 1996, Mrs. Eulalia
Vda. de Fuentes, Alejandro Fuentes together with Mrs. Helen A.
Auxtero and Miss Ma. Indira Auxtero came to my house and requested
me to make and prepare a document of sale between the Heirs of
Bernardo Fuentes and Ma. Indira Auxtero as Vendee and upon
verification of the papers they presented to the undersigned it was
found out that the land subject of the sale is a conjugal property of the
deceased Bernardo Fuentes and Eulalia Credo Vda. de Fuentes.
Being a conjugal property, the undersigned advised them to secure
special power of attorney for the children of Bernardo Fuentes who are
out of town.
2. On the 20th of December, 1996 Eulalia Vda. de Fuentes and
Alejandro Fuentes came back to the house bringing a special power of
attorney executed by Bonifacio Fuentes, Benjamin Fuentes, Urbano
Fuentes, Samuela Fuentes, Rufina Fuentes and Bernardo Fuentes, Jr.
carbon copy of the said Special Power of Attorney herewith attached
as Annex "A" of the answer. All these special power of attorney
empowers Alejandro Fuentes to execute a Deed of Sale of a parcel of
land under Transfer Certificate of Title No. 24937 registered in the
name of Bernardo Fuentes, their deceased father.
Since no special power of attorney was presented to the undersigned
executed by PO2 Geronimo Fuentes, the undersigned refused to make
their document of sale but Eulalia Vda. de Fuentes and Alejandro
Fuentes earnestly requested the undersigned to make and prepare the
necessary document saying that the special power of attorney of PO2
Geronimo Fuentes is coming and they are in urgent need of the money
and because of their request, the undersigned prepared the document,
and Extra-Judicial Partition of Real Property with Simultaneous
Absolute Deed of Sale in favor of Ma. Indira Auxtero. That PO2
Geronimo Fuentes was included in the Deed of Sale because of the
assurance of Alejandro Fuentes and Eulalia Vda. de Fuentes that the
Special Power of Attorney of PO2 Geronimo Fuentes is coming.
3. That after the necessary document was prepared Eulalia Vda. de
Fuentes and Alejandro Fuentes together with the vendee, Ma. Indira
Auxtero signed the document on December 24, 1996 and on that day
the said document was notarized by the undersigned.
4. That few days after the document was notarized, the undersigned
learned that the Special Power of Attorney executed by PO2 Geronimo
Fuentes empowered Alejandro Fuentes only to mortgage the property
so Mrs. Eulalia Vda. de Fuentes, Alejandro Fuentes and the vendee,
Ma. Indira Auxtero were called by the undersigned about the Special
Power of Attorney executed by PO2 Geronimo Fuentes but Eulalia
Fuentes and Alejandro Fuentes explained to the undersigned that they
will be responsible for PO2 Geronimo Fuentes considering that the
money was already spent by them and the vendee, Ma. Indira Auxtero
also assured the undersigned that if PO2 Geronimo Fuentes insists to
take back his share, she is willing and in fact she reserved the share of
Geronimo Fuentes, hence, the transaction was completed.
5. The undersigned is making and notarizing the document outside of
office hour cannot be said to have abuse his discretion and authority
since he was earnestly requested by Eulalia Vda. de Fuentes and
Alejandro Fuentes to prepare and notarized the document with
authority from his brothers and sisters and with respect to Eulalia Vda.
de Fuentes, she is selling her share of the conjugal property which is
one-half (1/2) of the entire parcel of land.
In the aforementioned answer, respondent judge contended that he
could not be charged of graft and corruption, since in a municipality
where a notary public is unavailable, a municipal judge is allowed to
notarize documents or deeds as ex-officio notary public. To support his
claim, he presented two certifications: one, from Atty. Azucena C.
Macalolot, Clerk of Court VI of the RTC, Branch 52, Talibon, Bohol,
who certified that according to their records and dockets, no petition for
commission and/or renewal of commission as notary public was
granted by the said court for calendar year 1996 and no appointment
as notary public was issued for that year; and the other, from Mayor
Juanario A. Item of Talibon, Bohol who also certified that no notary
public was staying and residing in the Municipality of Talibon, Bohol
during the year 1996.
Respondent judge contended that he did nothing wrong in preparing
and notarizing the said document and that he acted in good faith and in
obedience to the earnest plea of complainant's mother and siblings
who were in urgent need of money, and with their assurance that
complainant's SPA was forthcoming. In his attempt to explain his lack
of malice, respondent judge narrated that after learning that the SPA
only authorized his brother, Alejandro Fuentes to mortgage the
property, he summoned the latter, his mother and the buyer of the
land. Alejandro then assured him that they would be responsible to the
complainant and that the buyer was willing to return complainant's
share in the property. Respondent further questioned complainant's
sincerity in filing the complaint because the latter allegedly wanted
merely the respondent to persuade the buyer to return the whole
property to him instead of his share only.
In its Memorandum Report, the OCA recommended that the present
case be re-docketed as a regular administrative matter and that
respondent be fined in the amount of P10,000.00 for unauthorized
notarization of a private document, the same to be deducted from his
retirement benefit. The said OCA recommendation was premised on
the lack of authority of respondent judge to prepare and notarize the
document in question, which had no direct relation to the performance
of his official functions as a judge.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
1
While Section 76 of Republic Act No. 296, as amended, and Section
2
242 of the Revised Administrative Code authorize MTC and MCTC
judges to perform the functions of notaries public ex officio, the Court
laid down the scope of said authority in SC Circular No. 1-90. Conduct to regulate their extra-judicial activities in order to minimize
4
Pertinently, the said Circular reads: the risk of conflict with their judicial duties.

MTC and MCTC judges may act as notaries public ex officio in the
notarization of documents connected only with the exercise of their
official functions and duties [Borre v. Mayo, Adm. Matter No. 1765-CFI,
October 17, 1980, 100 SCRA 314; Penera v. Dalocanog, Adm. Matter
No. 2113-MJ, April 22, 1981, 104 SCRA 193]. They may not, as
notaries public ex officio, undertake the preparation and
acknowledgment of private documents, contracts and other acts of
conveyances which bear no direct relation to the performance of their
functions as judges. The 1989 Code of Judicial Conduct not only
enjoins judges to regulate their extra-judicial activities in order to
minimize the risk of conflict with their judicial duties, but also prohibits
them from engaging in the private practice of law (Canon 5 and Rule
5.07).
However, the Court, taking judicial notice of the fact that there are still
municipalities which have neither lawyers nor notaries public, rules that
MTC and MCTC judges assigned to municipalities or circuits with no
lawyers or notaries public may, in the capacity as notaries public ex
officio, perform any act within the competency of a regular notary
public, provided that: (1) all notarial fees charged be for the account of
the Government and turned over to the municipal treasurer (Lapena,
Jr. v. Marcos, Adm. Matter No. 1969-MJ, June 29, 1982, 114 SCRA
572); and, (2) certification be made in the notarized documents
attesting to the lack of any lawyer or notary public in such municipality
or circuit.
Rule 140 of the Rules of Court deals with the administrative sanctions
imposable on erring judges. Violation of Supreme Court rules,
directives and circulars is a Less Serious Charge punishable by
suspension from office or a fine of more than P10,000.00 but not
exceeding P20,000.00. However, respondent judge's application for
optional retirement had already been approved by the Court en banc
on March 10, 1998 in Administrative Matter No. 9449-Ret. and the
release of his retirement benefits was allowed provided that the
amount of P20,000.00 was withheld from the said retirement benefits,
pursuant to the Resolution of this Court's Third Division on June 16,
1999 in this administrative case, formerly docketed as Administrative
Matter OCA IPI No. 97-355-MTJ.
WHEREFORE, respondent Judge ROMUALDO G. BUNO, now retired,
of the Municipal Circuit Trial Court of Talibon-Getafe, Bohol, is found
LIABLE for failure to comply with SC Circular No. 1-90 and the Rules
on Notarial Practice. He is hereby ORDERED to pay a FINE of Twelve
Thousand Pesos (P12,000.00), to be deducted from the amount
withheld from his retirement benefits.
SO ORDERED.

The above-quoted SC Circular No. 1-90 prohibits judges from

undertaking the preparation and acknowledgment of private
documents, contracts and other deeds of conveyances which have no
direct relation to the discharge of their official functions. In this case,
respondent judge admitted that he prepared both the document itself,
entitled "Extra-judicial Partition with Simultaneous Absolute Deed of
Sale" and the acknowledgment of the said document, which had no
relation at all to the performance of his function as a judge. These acts
of respondent judge are clearly proscribed by the aforesaid Circular.

While it may be true that no notary public was available or residing

within respondent judge's territorial jurisdiction, as shown by the
certifications issued by the RTC Clerk of Court and the Municipal
Mayor of Talibon, Bohol, SC Circular No. 1-90 specifically requires that
a certification attesting to the lack of any lawyer or notary public in the
said municipality or circuit be made in the notarized document. Here,
no such certification was made in the Extra-Judicial Partition with
Simultaneous Deed of Sale. Respondent judge also failed to indicate in
his answer as to whether or not any notarial fee was charged for that
transaction, and if so, whether the same was turned over to the
Municipal Treasurer of Talibon, Bohol. Clearly, then, respondent judge,
who was the sitting judge of the MCTC, Talibon-Getafe, Bohol, failed to
comply with the aforesaid conditions prescribed by SC Circular No. 1-
90, even if he could have acted as notary public ex-officio in the
absence of any lawyer or notary public in the municipality or circuit to
which he was assigned.

Whether or not respondent judge truly acted in good faith when he

prepared and acknowledged the subject document is beside the point
since he failed to strictly observe the requirements of SC Circular No.
1-90. As noted by the then Court Administrator, the document involved
here is Document No. 1158, which shows that numerous documents
were notarized by respondent judge in the year 1996 alone.
Respondent judge was silent as to whether he charged fees when he
notarized documents and if so, whether he turned over the notarial
fees to the municipal treasurer. Moreover, contrary to Rule IV, Sec.
3
6(a) of the Rules on Notarial Practice of 2004, respondent notarized
the said document without the SPA of the attorney-in-fact of the
vendors which gave rise to the legal problem between the vendors and
the vendee concerning the scope of authority of the aforesaid attorney-
in-fact. By failing to comply with the conditions set for SC Circular No.
1-90 and violating the provision of the Rules on Notarial Practice of
2004, respondent judge failed to conduct himself in a manner that is
beyond reproach and suspicion. Any hint of impropriety must be
avoided at all cost. Judges are enjoined by the Code of Judicial
 C. Notarized Document as a Public Instrument
A.C. No. 5645. July 2, 2002
ROSALINDA BERNARDO VDA DE ROSALES, complainant,
vs. ATTY. MARIO G. RAMOS, respondent.
DECISION
BELLOSILLO, J.:
This complaint for disbarment was filed in behalf of complainant
Rosalinda Bernardo Vda. de Rosales by the National Bureau of
Investigation (NBI) against respondent Atty. Mario G. Ramos for
violation of Act No. 2711 of the Revised Administrative Code of 1917,
Title IV, Ch. 11, otherwise know as the Notarial Law, particularly Secs.
245 and 246 thereof.
In September 1990 Manuel A. Bernardo, brother of complainant
Rosalinda Bernardo Vda. de Rosales, borrowed from Rosalinda the
Original Transfer Certificate of Title No. 194464 covering Lot No. 1-B-
4-H in her name. The lot measures 112 square meters and is located
at the back of Manuel's house on Fabie Street, Paco, Metro Manila. On
25 November 1990 Rosalinda sold this lot to one Alfredo P. Castro.
When she asked her brother Manuel to return her title he refused.
On 22 October 1990 Rosalinda executed an Affidavit of Loss of her title
and presented the affidavit to the Register of Deeds of Manila.
On 3 September 1991 the Register of Deeds informed Rosalinda that
her title to the property was already transferred to Manuel by virtue of
a Deed of Absolute Sale she purportedly executed in favor of Manuel
on 5 September 1990. The document was notarized by respondent
Atty. Mario G. Ramos on 1 October 1990 and entered in his Notarial
Register as Doc. No. 388, Page No. 718, Book No. 10, Series of 1990.
Rosalinda however denied having signed any deed of sale over her
property in favor of Manuel.
On 3 September 1991 Rosalinda filed with the NBI a complaint for
falsification of public document against her brother Manuel. The NBI
invited respondent Atty. Ramos for questioning. The complaint alleged
among others that on 12 September 1991 Atty. Mario G. Ramos
executed an affidavit before the NBI admitting that when Manuel
presented the purported Deed of Absolute Sale to him for notarization,
he (Atty. Ramos) found some defects in the document and that
complainant Rosalinda was not around. The NBI Questioned
Documents Division also compared Rosalinda's signature appearing in
the Deed of Absolute Sale with samples of her genuine signature, and
found that the signature in the purported Deed of Absolute Sale and
her genuine signatures were not written by one and the same person.
On 5 October 1992 the NBI transmitted its findings to the Office of the
City Prosecutor of Manila with the recommendation that Manuel and
Atty. Ramos be prosecuted for Falsification of Public Document under
Art. 172 in relation to Art. 171 of The Revised Penal Code, and that
Atty. Ramos be additionally charged with violation of the Notarial Law.
The NBI also transmitted to the Integrated Bar of the Philippines (IBP)
Commission on Bar Discipline (CBD) photocopies of the NBI
investigation report and its annexes, and a verified complaint[1 for
disbarment signed by Rosalinda. The CBD received the records on 5
October 1992. On the same date, the CBD through Commissioner
Victor C. Fernandez directed respondent to submit an answer to the
complaint within fifteen (15) days from notice.
Respondent admitted in his Answer[2 that he had affixed his signature
on the purported Deed of Absolute Sale but failed to enter the
document in his Notarial Registry Book. He also admitted executing
before the NBI on 12 September 1991 an affidavit regarding the
matter. Respondent prayed for the dismissal of the complaint since
according to him he only inadvertently signed the purported Deed of
Absolute Sale and/or that his signature was procured through mistake,
fraud, undue influence or excusable negligence, claiming that he
simply relied on the assurances of Manuel that the document would not
be used for purposes other than a loan between brother and sister, and
that he affixed his signature thereon with utmost good faith and without
intending to obtain personal gain or to cause damage or injury to
another.
The CBD set the case for hearing on 3 March 2000, 28 April 2000, 16
June 2000 and 5 October 2000. Complainant never appeared. The
records show that the notices sent to her address at 1497 Fabie Street,
Paco, Manila, were returned unclaimed.[3
On 26 January 2002 the IBP Board of Governors approved the report
and recommendation of the CBD through Commissioner Fernandez
that the case against respondent be dismissed in view of complainant's
failure to prosecute and for lack of evidence on record to substantiate
the complaint.[4 The Investigating Commissioner found that the notices
sent to complainant were returned unclaimed with the annotation
"moved out," and that she did not leave any forwarding address, and
neither did she come to the CBD to inquire about the status of her
case. From these actuations, he concluded that complainant had lost
interest in the further prosecution of this case,[5 and so recommended
its dismissal.
We cannot wholly agree with the findings and recommendation of the
Investigating Commissioner. It is clear from the pleadings before us
that respondent violated the Notarial Law in failing to register in his
notarial book the deed of absolute sale he notarized, which fact
respondent readily admitted.
The Notarial Law is explicit on the obligations and duties of a notary
public. It requires him to keep a notarial register where he shall record
all his official acts as notary,[6 and specifies what information with
regard to the notarized document should be entered therein.[7 Failure
to perform this duty results in the revocation of his commission as
notary public.[8
The importance attached to the act of notarization cannot be
overemphasized. Notarization is not an empty, meaningless, routinary
act. It is invested with substantive public interest, such that only those
who are qualified or authorized may act as notaries
public.[9 Notarization converts a private document into a public
document thus making that document admissible in evidence without
further proof of its authenticity.[10 A notarial document is by law
entitled to full faith and credit upon its face. Courts, administrative
agencies and the public at large must be able to rely upon the
acknowledgment executed by a notary public and appended to a
private instrument.[11
For this reason notaries public must observe with utmost care the basic
requirements in the performance of their duties.[12 Otherwise, the
confidence of the public in the integrity of this form of conveyance
would be undermined.[13 Hence a notary public should not notarize a
document unless the persons who signed the same are the very same
persons who executed and personally appeared before him to attest to
the contents and truth of what are stated therein.[14 The purpose of
this requirement is to enable the notary public to verify the
genuineness of the signature of the acknowledging party and to
ascertain that the document is the party's free act and deed.[15
The notary public is further enjoined to record in his notarial registry the
necessary information regarding the document or instrument notarized
and retain a copy of the document presented to him for
acknowledgment and certification especially when it is a
contract.[16 The notarial registry is a record of the notary public's
official acts. Acknowledged documents and instruments recorded in it
are considered public documents. If the document or instrument does
not appear in the notarial records and there is no copy of it therein,
doubt is engendered that the document or instrument was not really
notarized, so that it is not a public document and cannot bolster any
claim made based on this document. Considering the evidentiary value
given to notarized documents, the failure of the notary public to record
the document in his notarial registry is tantamount to falsely making it
appear that the document was notarized when in fact it was not.
We take note of respondent's admission in his Answer that he had
affixed his signature in the purported Deed of Absolute Sale but he did
not enter it in his notarial registry. This is clearly in violation of the
Notarial Law for which he must be disciplined.

Respondent alleges that he merely signed the Deed of Absolute

Sale inadvertently and that his signature was procured through
mistake, fraud, undue influence or excusable negligence as he relied
on the assurances of Manuel A. Bernardo, a kababayan from
Pampanga, that the document would not be used for any illegal
purpose.

We cannot honor, much less give credit to this allegation. That

respondent notarized the document out of sympathy for
his kababayan is not a legitimate excuse. It is appalling that
respondent did away with the basics of notarial procedure in order to
accommodate the alleged need of a friend and client. In doing so, he
displayed a decided lack of respect for the solemnity of an oath in a
notarial document. He also exhibited his clear ignorance of the
importance of the office of a notary public. Not only did he violate the
Notarial Law, he also did so without thinking of the possible damage
that might result from its non-observance.

The principal function of a notary public is to authenticate documents.

When a notary public certifies to the due execution and delivery of the
document under his hand and seal he gives the document the force of
evidence. Indeed, one of the purposes of requiring documents to be
acknowledged before a notary public, in addition to the solemnity which
should surround the execution and delivery of documents, is to
authorize such documents to be given without further proof of their
execution and delivery.[17 Where the notary public is a lawyer, a
graver responsibility is placed upon him by reason of his solemn oath
to obey the laws and to do no falsehood or consent to the doing of
any.[18 Failing in this, he must accept the consequences of his
unwarranted actions.

From his admissions we find that Atty. Mario G. Ramos failed to

exercise the due diligence required of him in the performance of the
duties of notary public. We do not agree however that his negligence
should merit disbarment, which is the most severe form of disciplinary
sanction. Disbarment should never be imposed unless it is evidently
clear that the lawyer, by his serious misconduct, should no longer
remain a member of the bar. Removal from the bar should not really be
decreed when any punishment less severe - reprimand, temporary
suspension or fine - would accomplish the end desired.[19 Under the
circumstances, imposing sanctions decreed under the Notarial Law
and suspension from the practice of law would suffice.

WHEREFORE, for lack of diligence in the observance of the Notarial

Law, the commission of respondent Atty. Mario G. Ramos as Notary
Public, if still existing, is REVOKED and thereafter Atty. Ramos should
be DISQUALIFIED from reappointment to the office of Notary Public.

Respondent Atty. Mario G. Ramos is also SUSPENDED from the

practice of law for a period of six (6) months effective immediately. He
is DIRECTED to report to this Court his receipt of this Decision to
enable it to determine when his suspension shall have taken effect.

The Clerk of Court of this Court is DIRECTED to immediately

circularize this Decision for the proper guidance of all concerned.

Let copies of this Decision be furnished the Office of the Bar Confidant
and the Integrated Bar of the Philippines.

SO ORDERED.
A.C. No. 6294 November 17, 2004
ATTY. MINIANO B. DELA CRUZ, complainant,
vs.
ATTY. ALEJANDRO P. ZABALA, respondent.
RESOLUTION
QUISUMBING, J.:
In his Letter-Complaint for Disbarment filed before the Committee on
Bar Discipline of the Integrated Bar of the Philippines, complainant
Atty. Miniano B. Dela Cruz charged respondent, Atty. Alejandro P.
Zabala, for violating his oath as a notary public.
Complainant alleged that respondent notarized with unknown
witnesses, a fake deed of sale allegedly executed by two dead people,
in gross violation of his oath as a Commissioned Notary Public in
1
Quezon City.
Complainant averred that he was retained by a certain Demetrio C.
Marero last December 21, 1996, to finance and undertake the filing of
a Petition for the Issuance of a Second Duplicate Original of the
Owner's copy of Original Certificate of Title (OCT) No. 4153, in the
names of Sps. Pedro Sumulong and Cirila Tapales before the Regional
Trial Court of Antipolo City, Branch 72. The court issued an Order
2
approving the said petition on March 10, 1997.
On May 20, 1997, complainant purchased the said property from
Marero and had the title transferred to him and his wife. OCT No. 4153
was then cancelled and replaced by Transfer Certificate of Title (TCT)
No. 330000.
3
The next day, complainant requested a certain Mrs. Adoracion Losloso
and Mr. Nestor Aguirre to register the title in the former's name at the
Assessor's Office of Antipolo City. However, they were unable to do so
because the property was already registered in the name of Antipolo
Properties, Inc., under TCT No. N-107359.
4
On May 27, 1997, respondent notarized a Deed of Absolute Sale over
the land covered by OCT No. 4153, executed by Cirila Tapales and
5
Pedro Sumulong in favor of the complainant and his wife.
On December 9, 1997, Mr. Marero filed a Complaint for Reconveyance
of Title of the land, subject of the Deed of Sale which was notarized by
respondent, with damages against the complainant and his wife. The
Deed of Sale was the same document Marero used when he filed a
complaint for Estafa thru Falsification of Public Document docketed as
I.S. No. 98-16357 before the Quezon City Prosecutor's Office and in a
disbarment case docketed as Adm. Case No. 4963 against
6
complainant.
Purportedly, to clear his name, complainant filed this complaint for
disbarment against respondent. According to complainant, respondent
notarized an irregular document where one of the parties to the
transaction was already dead, grossly violating his oath as a notary
public.
7 certificate shall be made under his official seal, if he is by law
The IBP then required the respondent to file his answer to the said
allegations.
Respondent, in his Answer alleged that as a notary, he did not have to
go beyond the documents presented to him for notarization. In notarial
law, he explains, the minimum requirements to notarize a document
are the presence of the parties and their presentation of their
community tax certificate. As long as these requirements are met, the
documents may be notarized. Furthermore, he adds, when he
notarized the Deed of Sale, he had no way of knowing whether the
persons who appeared before him were the real owners of the land or
were merely poseurs.
8
Thereafter, the parties were ordered to appear before the IBP
Commission on Bar Discipline on July 31, 2001 and August 21, 2001,
and required to submit their position papers.
The IBP Commission on Bar Discipline, in its Report dated September
29, 2003, recommended that respondent be reprimanded for violating
9
Canon 5 of the Code of Professional Responsibility. The allegations
with respect to the prayer for disbarment were recommended for
dismissal for insufficiency of evidence. The Commissioner held that
complainant failed to establish by convincing proof that respondent had
to be disbarred because of his notarial negligence. The alleged failures
of respondent did not indicate a clear intent to engage in unlawful,
dishonest, immoral or deceitful conduct, according to the Commission's
Report.
Noteworthy, however, respondent did not deny that he notarized the
cited Deed of Sale under the circumstances alleged by complainant. It
appears that there was negligence on respondent's part which, in our
view, is quite serious. Thus, we cannot conclude that he did not violate
10
the Notarial Law, and our rules regarding Notarial Practice. Nor
11
could we agree that, as recommended by the IBP, he should only be
reprimanded. At least his commission as Notary Public should be
revoked and for two years he should be disqualified from being
commissioned as such.
The IBP noted that on its face, the Deed of Sale was not executed by
the purported vendee and that only Pedro Sumulong appeared and
executed the deed even though the property was co-owned by Pedro
Sumulong and Cirila Tapales. In addition, a copy of the title was not
attached to the said Deed of Sale when it was presented for
notarization. The aforementioned circumstances should have alerted
respondent. Given the ease with which community tax certificates are
obtained these days, respondent should have been more vigilant in
ascertaining the identity of the persons who appeared before him.
We have empathically stressed that notarization is not an empty,
meaningless routinary act. It is invested with substantive public
interest. It must be underscored that the notarization by a notary public
converts a private document into a public document, making that
document admissible in evidence without further proof of authenticity
thereof. A notarial document is, by law, entitled to full faith and credit
upon its face. For this reason, a notary public must observe with
utmost care the basic requirements in the performance of their duties;
otherwise, the confidence of the public in the integrity of this form of
conveyance would be undermined.
12
Section 1 of Public Act No. 2103 provides,
...
(a) The acknowledgment shall be made before a notary
public or an officer duly authorized by law of the country to
take acknowledgments of instruments or documents in the
place where the act is done. The notary public or the officer
taking the acknowledgment shall certify that the person
acknowledging the instrument or document is known to him
and that he is the same person who executed it, and
acknowledged that the same is his free act and deed. The
required to keep a seal, and if not, his certificate shall so
state. [Emphasis ours.]
A notary public should not notarize a document unless the persons
who signed the same are the very same persons who executed and
personally appeared before him to attest to the contents and the truth
of what are stated therein. These acts of the affiants cannot be
delegated because what are stated therein are facts they have
personal knowledge of and are personally sworn to. Otherwise, their
representative's names should appear in the said documents as the
ones who executed the same.
13
The function of a notary public is, among others, to guard against any
14
illegal or immoral arrangements. By affixing his notarial seal on the
instrument, he converted the Deed of Absolute Sale, from a private
document into a public document. In doing so, respondent, in effect,
proclaimed to the world that (1) all the parties therein personally
appeared before him; (2) they are all personally known to him; (3) they
were the same persons who executed the instruments; (4) he inquired
into the voluntariness of execution of the instrument; and (5) they
acknowledged personally before him that they voluntarily and freely
15
executed the same. As a lawyer commissioned to be a notary public,
respondent is mandated to discharge his sacred duties with faithful
observance and utmost respect for the legal solemnity of an oath in an
16
acknowledgment or jurat. Simply put, such responsibility is incumbent
upon him, he must now accept the commensurate consequences of his
professional indiscretion. His act of certifying under oath an irregular
Deed of Absolute Sale without ascertaining the identities of the
persons executing the same constitutes gross negligence in the
performance of duty as a notary public.

WHEREFORE, this Court finds respondent Atty. Alejandro P. Zabala

GUILTY of gross negligence in his conduct as a notary public. His
notarial commission, if still existing, is hereby REVOKED and he is
DISQUALIFIED from being commissioned as a notary public for a
period of two (2) years. He is DIRECTED to report the date of his
receipt of this Resolution to the Court within five (5) days from such
receipt. Further, he is ordered to SHOW CAUSE why he should not be
subject to disciplinary action as a member of the Bar.

Let copies of this Resolution be furnished to all the courts of the land
as well as the Integrated Bar of the Philippines, and the Office of the
Bar Confidant. Let this Resolution be also made of record in the
personal files of the respondent.

SO ORDERED.
A.C. No. 5281 February 12, 2008
MANUEL L. LEE, petitioner,
vs.
ATTY. REGINO B. TAMBAGO, respondent.
RESOLUTION
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee
charged respondent Atty. Regino B. Tambago with violation of the
Notarial Law and the ethics of the legal profession for notarizing a
spurious last will and testament.
In his complaint, complainant averred that his father, the decedent
Vicente Lee, Sr., never executed the contested will. Furthermore, the
spurious will contained the forged signatures of Cayetano Noynay and
Loreto Grajo, the purported witnesses to its execution.
In the said will, the decedent supposedly bequeathed his entire estate
to his wife Lim Hock Lee, save for a parcel of land which he devised to
Vicente Lee, Jr. and Elena Lee, half-siblings of complainant.
The will was purportedly executed and acknowledged before
1
respondent on June 30, 1965. Complainant, however, pointed out that
2
the residence certificate of the testator noted in the acknowledgment
3
of the will was dated January 5, 1962. Furthermore, the signature of
the testator was not the same as his signature as donor in a deed of
4
donation (containing his purported genuine signature). Complainant
averred that the signatures of his deceased father in the will and in the
deed of donation were "in any way (sic) entirely and diametrically
5
opposed from (sic) one another in all angle[s]."
Complainant also questioned the absence of notation of the residence
certificates of the purported witnesses Noynay and Grajo. He alleged
that their signatures had likewise been forged and merely copied from
their respective voters’ affidavits.
Complainant further asserted that no copy of such purported will was
on file in the archives division of the Records Management and
Archives Office of the National Commission for Culture and the Arts
(NCCA). In this connection, the certification of the chief of the archives
division dated September 19, 1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an
AFFIDAVIT executed by BARTOLOME RAMIREZ on June
6
30, 1965 and is available in this Office[’s] files.
Respondent in his comment dated July 6, 2001 claimed that the
complaint against him contained false allegations: (1) that complainant
was a son of the decedent Vicente Lee, Sr. and (2) that the will in
question was fake and spurious. He alleged that complainant was "not
a legitimate son of Vicente Lee, Sr. and the last will and testament was
7
validly executed and actually notarized by respondent per affidavit of
Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated
8
by the joint affidavit of the children of Vicente Lee, Sr., namely Elena
9
N. Lee and Vicente N. Lee, Jr. xxx."
Respondent further stated that the complaint was filed simply to harass
him because the criminal case filed by complainant against him in the
Office of the Ombudsman "did not prosper."
Respondent did not dispute complainant’s contention that no copy of
the will was on file in the archives division of the NCCA. He claimed
that no copy of the contested will could be found there because none
was filed.
Lastly, respondent pointed out that complainant had no valid cause of
action against him as he (complainant) did not first file an action for the
declaration of nullity of the will and demand his share in the
inheritance.
In a resolution dated October 17, 2001, the Court referred the case to
the Integrated Bar of the Philippines (IBP) for investigation, report and
10
recommendation.
In his report, the investigating commissioner found respondent guilty of
violation of pertinent provisions of the old Notarial Law as found in the
Revised Administrative Code. The violation constituted an infringement
11 12
of legal ethics, particularly Canon 1 and Rule 1.01 of the Code of
13
Professional Responsibility (CPR). Thus, the investigating
commissioner of the IBP Commission on Bar Discipline recommended
the suspension of respondent for a period of three months.
The IBP Board of Governors, in its Resolution No. XVII-2006-285
dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner of the
above-entitled case, herein made part of this Resolution as
Annex "A"; and, finding the recommendation fully supported
by the evidence on record and the applicable laws and rules,
and considering Respondent’s failure to comply with the laws
in the discharge of his function as a notary public, Atty.
Regino B. Tambago is hereby suspended from the practice
of law for one year and Respondent’s notarial commission
is Revoked and Disqualified from reappointment as Notary
Public for two (2) years.
14
We affirm with modification.
A will is an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his
15
estate, to take effect after his death. A will may either be notarial or
holographic.
The law provides for certain formalities that must be followed in the
execution of wills. The object of solemnities surrounding the execution
of wills is to close the door on bad faith and fraud, to avoid substitution
16
of wills and testaments and to guarantee their truth and authenticity.
A notarial will, as the contested will in this case, is required by law to
be subscribed at the end thereof by the testator himself. In addition, it
should be attested and subscribed by three or more credible witnesses
17
in the presence of the testator and of one another.
The will in question was attested by only two witnesses, Noynay and
Grajo. On this circumstance alone, the will must be considered
18
void. This is in consonance with the rule that acts executed against
the provisions of mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity.
The Civil Code likewise requires that a will must be acknowledged
before a notary public by the testator and the witnesses. The
19
importance of this requirement is highlighted by the fact that it was
segregated from the other requirements under Article 805 and
embodied in a distinct and separate provision.
20
An acknowledgment is the act of one who has executed a deed in
going before some competent officer or court and declaring it to be his
act or deed. It involves an extra step undertaken whereby the signatory
actually declares to the notary public that the same is his or her own
21
free act and deed. The acknowledgment in a notarial will has a two-
fold purpose: (1) to safeguard the testator’s wishes long after his
demise and (2) to assure that his estate is administered in the manner
that he intends it to be done.
A cursory examination of the acknowledgment of the will in question
shows that this particular requirement was neither strictly nor
substantially complied with. For one, there was the conspicuous
absence of a notation of the residence certificates of the notarial
witnesses Noynay and Grajo in the acknowledgment. Similarly, the
notation of the testator’s old residence certificate in the same
acknowledgment was a clear breach of the law. These omissions by
respondent invalidated the will.
As the acknowledging officer of the contested will, respondent was
required to faithfully observe the formalities of a will and those of
22
notarization. As we held in Santiago v. Rafanan:
The Notarial Law is explicit on the obligations and duties of
notaries public. They are required to certify that the party to
every document acknowledged before him had presented
the proper residence certificate (or exemption from the
residence tax); and to enter its number, place of issue and
date as part of such certification.
These formalities are mandatory and cannot be disregarded,
considering the degree of importance and evidentiary weight attached
23 24
to notarized documents. A notary public, especially a lawyer, is
bound to strictly observe these elementary requirements.
The Notarial Law then in force required the exhibition of the residence
certificate upon notarization of a document or instrument:
Section 251. Requirement as to notation of payment of
[cedula] residence tax. – Every contract, deed, or other
document acknowledged before a notary public shall have
certified thereon that the parties thereto have presented their
proper [cedula] residence certificate or are exempt from the
[cedula] residence tax, and there shall be entered by the
notary public as a part of such certificate the number, place
of issue, and date of each [cedula] residence certificate as
25
aforesaid.
The importance of such act was further reiterated by Section 6 of the
26
Residence Tax Act which stated:
When a person liable to the taxes prescribed in this Act
acknowledges any document before a notary public xxx it
shall be the duty of such person xxx with whom such
transaction is had or business done, to require the exhibition
of the residence certificate showing payment of the
residence taxes by such person xxx.
In the issuance of a residence certificate, the law seeks to establish the
true and correct identity of the person to whom it is issued, as well as
the payment of residence taxes for the current year. By having allowed
decedent to exhibit an expired residence certificate, respondent failed
to comply with the requirements of both the old Notarial Law and the
Residence Tax Act. As much could be said of his failure to demand the
exhibition of the residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to
furnish a copy of the notarized will to the archives division, Article 806
provides:
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witness. The notary public
shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court. (emphasis
supplied)
Respondent’s failure, inadvertent or not, to file in the archives division
a copy of the notarized will was therefore not a cause for disciplinary
action.
Nevertheless, respondent should be faulted for having failed to make
the necessary entries pertaining to the will in his notarial register. The
old Notarial Law required the entry of the following matters in the
notarial register, in chronological order:
1. nature of each instrument executed, sworn to, or
acknowledged before him;
2. person executing, swearing to, or acknowledging the
instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the
instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the
27
substance of the instrument.
In an effort to prove that he had complied with the abovementioned
rule, respondent contended that he had crossed out a prior entry and
entered instead the will of the decedent. As proof, he presented a
photocopy of his notarial register. To reinforce his claim, he presented
28
a photocopy of a certification stating that the archives division had no
copy of the affidavit of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible unless
it is shown that the original is unavailable. The proponent must first
prove the existence and cause of the unavailability of the
29
original, otherwise, the evidence presented will not be admitted.
Thus, the photocopy of respondent’s notarial register was not
admissible as evidence of the entry of the execution of the will because
it failed to comply with the requirements for the admissibility of
secondary evidence.
In the same vein, respondent’s attempt to controvert the certification
30
dated September 21, 1999 must fail. Not only did he present a mere
31
photocopy of the certification dated March 15, 2000; its contents did
not squarely prove the fact of entry of the contested will in his notarial
register.
32
Notaries public must observe with utmost care and utmost fidelity the
basic requirements in the performance of their duties, otherwise, the
confidence of the public in the integrity of notarized deeds will be
33
undermined.
Defects in the observance of the solemnities prescribed by law render
the entire will invalid. This carelessness cannot be taken lightly in view
of the importance and delicate nature of a will, considering that the
testator and the witnesses, as in this case, are no longer alive to
34
identify the instrument and to confirm its contents. Accordingly,
respondent must be held accountable for his acts. The validity of the
will was seriously compromised as a consequence of his breach of
35
duty.
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. — The following
derelictions of duty on the part of a notary public shall, in the
discretion of the proper judge of first instance, be sufficient
ground for the revocation of his commission:
xxx xxx xxx
(b) The failure of the notary to make the proper entry or
entries in his notarial register touching his notarial acts in the
manner required by law.
xxx xxx xxx
 (f) The failure of the notary to make the proper notation
36
regarding cedula certificates.

These gross violations of the law also made respondent liable for
violation of his oath as a lawyer and constituted transgressions of
37 38
Section 20 (a), Rule 138 of the Rules of Court and Canon 1 and
39
Rule 1.01 of the CPR.

The first and foremost duty of a lawyer is to maintain allegiance to the

Republic of the Philippines, uphold the Constitution and obey the laws
40
of the land. For a lawyer is the servant of the law and belongs to a
profession to which society has entrusted the administration of law and
41
the dispensation of justice.

While the duty to uphold the Constitution and obey the law is an
obligation imposed on every citizen, a lawyer assumes responsibilities
well beyond the basic requirements of good citizenship. As a servant of
the law, a lawyer should moreover make himself an example for others
42
to emulate. Being a lawyer, he is supposed to be a model in the
43
community in so far as respect for the law is concerned.

44
The practice of law is a privilege burdened with conditions. A breach
of these conditions justifies disciplinary action against the erring
lawyer. A disciplinary sanction is imposed on a lawyer upon a finding or
acknowledgment that he has engaged in professional
45
misconduct. These sanctions meted out to errant lawyers include
disbarment, suspension and reprimand.

46
Disbarment is the most severe form of disciplinary sanction. We have
held in a number of cases that the power to disbar must be exercised
47
with great caution and should not be decreed if any punishment less
severe – such as reprimand, suspension, or fine – will accomplish the
48
end desired. The rule then is that disbarment is meted out only in
clear cases of misconduct that seriously affect the standing and
49
character of the lawyer as an officer of the court.

Respondent, as notary public, evidently failed in the performance of the

elementary duties of his office. Contrary to his claims that he
"exercised his duties as Notary Public with due care and with due
regard to the provision of existing law and had complied with the
elementary formalities in the performance of his duties xxx," we find
that he acted very irresponsibly in notarizing the will in question. Such
recklessness warrants the less severe punishment of suspension from
the practice of law. It is, as well, a sufficient basis for the revocation of
50
his commission and his perpetual disqualification to be commissioned
51
as a notary public.

WHEREFORE, respondent Atty. Regino B. Tambago is hereby found

guilty of professional misconduct. He violated (1) the Lawyer’s Oath;
(2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the
Code of Professional Responsibility; (4) Art. 806 of the Civil Code and
(5) the provisions of the old Notarial Law.

Atty. Regino B. Tambago is hereby SUSPENDED from the practice of

law for one year and his notarial commission REVOKED. Because he
has not lived up to the trustworthiness expected of him as a notary
public and as an officer of the court, he
is PERPETUALLY DISQUALIFIED from reappointment as a notary
public.

Let copies of this Resolution be furnished to all the courts of the land,
the Integrated Bar of the Philippines and the Office of the Bar
Confidant, as well as made part of the personal records of respondent.

SO ORDERED.
A.C. No. 7781 September 12, 2008
DOLORES L. DELA CRUZ, MILAGROS L. PRINCIPE, NARCISA L.
FAUSTINO, JORGE V. LEGASPI, and JUANITO V.
LEGASPI, complainants,
vs.
ATTY. JOSE R. DIMAANO, JR., respondent.
DECISION
VELASCO, JR., J.:
In their complaint for disbarment against respondent Atty. Jose R.
Dimaano, Jr., Dolores L. Dela Cruz, Milagros L. Principe, Narcisa L.
Faustino, Jorge V. Legaspi, and Juanito V. Legaspi alleged that on July
16, 2004, respondent notarized a document denominated
as Extrajudicial Settlement of the Estate with Waiver of
Rights purportedly executed by them and their sister, Zenaida V.L.
Navarro. Complainants further alleged that: (1) their signatures in this
document were forged; (2) they did not appear and acknowledge the
document on July 16, 2004 before respondent, as notarizing officer;
and (3) their purported community tax certificates indicated in the
document were not theirs.
According to complainants, respondent had made untruthful
statements in the acknowledgment portion of the notarized document
when he made it appear, among other things, that complainants
"personally came and appeared before him" and that they affixed their
signatures on the document in his presence. In the process,
complainants added, respondent effectively enabled their sister,
Navarro, to assume full ownership of their deceased parents’ property
in Tibagan, San Miguel, Bulacan, covered by Transfer Certificate of
Title No. T-303936 and sell the same to the Department of Public
Works and Highways.
In his answer, respondent admitted having a hand in the preparation of
the document in question, but admitted having indeed notarized it. He
explained that "he notarized [the] document in good faith relying on the
representation and assurance of Zenaida Navarro that the signatures
and the community tax certificates appearing in the document were
true and correct." Navarro would not, according to respondent, lie to
him having known, and being neighbors of, each other for 30 years.
Finally, respondent disclaimed liability for any damage or injury
considering that the falsified document had been revoked and
canceled.
In his Report and Recommendation, the Investigating Commissioner of
the Office of the Commission on Bar Discipline, Integrated Bar of the
Philippines (IBP), found the following as established: (1) the
questioned document bore the signatures and community tax
certificates of, and purports to have been executed by, complainants
and Navarro; (2) respondent indeed notarized the questioned
document on July 16, 2004; (3) complainants did not appear and
acknowledge the document before respondent on July 16, 2004; (4)
respondent notarized the questioned document only on Navarro’s
representation that the signatures appearing and community tax
certificates were true and correct; and (5) respondent did not ascertain
if the purported signatures of each of the complainants appearing in
the document belonged to them.
The Commission concluded that with respondent’s admission of having
notarized the document in question against the factual backdrop as
thus established, a clear case of falsification and violation of the
Notarial Law had been committed when he stated in the
Acknowledgment that:
Before me, on this 16th day of July 16, 2004 at Manila,
personally came and appeared the above-named persons
with their respective Community Tax Certificates as follows:
xxxx
who are known to me to be the same persons who executed
the foregoing instrument and they acknowledge to me that
the same is their own free act and deed. x x x
For the stated infraction, the Commission recommended, conformably
1
with the Court’s ruling in Gonzales v. Ramos, that respondent be
suspended from the practice of law for one (1) year; that his notarial
commission, if still existing, be revoked; and that he be disqualified for
reappointment as notary public for two (2) years. On September 28,
2007, the IBP Board of Governors passed Resolution No. XVIII-2007-
147, adopting and approving the report and recommendation of the
Commission.
We agree with the recommendation of the Commission and the
premises holding it together. It bears reiterating that notaries public
should refrain from affixing their signature and notarial seal on a
document unless the persons who signed it are the same individuals
who executed and personally appeared before the notaries public to
attest to the truth of what are stated therein, for under Section 1 of
Public Act No. 2103 or the Notarial Law, an instrument or document
shall be considered authentic if the acknowledgment is made in
accordance with the following requirements:
(a) The acknowledgment shall be made before a notary
public or an officer duly authorized by law of the country to
take acknowledgments of instruments or documents in the
place where the act is done. The notary public or the officer
taking the acknowledgment shall certify that the person
acknowledging the instrument or document is known to him
and that he is the same person who executed it, and
acknowledged that the same is his free act and deed. The
certificate shall be made under his official seal, if he is by law
required to keep a seal, and if not, his certificate shall so
2
state.
Without the appearance of the person who actually executed the
document in question, notaries public would be unable to verify the
genuineness of the signature of the acknowledging party and to
ascertain that the document is the party’s free act or
3
deed. Furthermore, notaries public are required by the Notarial Law to
certify that the party to the instrument has acknowledged and
presented before the notaries public the proper residence certificate (or
exemption from the residence certificate) and to enter its number,
4
place, and date of issue as part of certification. Rule II, Sec. 12 of
5
the 2004 Rules on Notarial Practice now requires a party to the
instrument to present competent evidence of identity. Sec. 12 provides:
Sec. 12. Competent Evidence of Identity.-The phrase
"competent evidence of identity" refers to the identification of
an individual based on:
(a) at least one current identification document issued by an
official agency bearing the photograph and signature of the
individual, such as but not limited to, passport, driver’s
license, Professional Regulations Commission ID, National
Bureau of Investigation clearance, police clearance, postal
ID, voter’s ID, Barangay certification, Government Service
Insurance System (GSIS) e-card, Social Security System
(SSS) card, Philhealth card, senior citizen card, Overseas
Workers Welfare Administration (OWWA) ID, OFW ID,
seaman’s book, alien certificate of registration/immigrant
certificate of registration, government office ID, certificate
from the National Council for the Welfare of Disabled
Persons (NCWDP), Department of Social Welfare and
Development certification [as amended by A.M. No. 02-8-13-
SC dated February 19, 2008]; or
(b) the oath or affirmation of one credible witness not privy to
the instrument, document or transaction who is personally
known to the notary public and who personally knows the
individual, or of two credible witnesses neither of whom is
privy to the instrument, document or transaction who each
personally knows the individual and shows to the notary
public documentary identification.
One last note. Lawyers commissioned as notaries public are mandated
to discharge with fidelity the duties of their offices, such duties being
dictated by public policy and impressed with public interest. It must be
remembered that notarization is not a routinary, meaningless act, for
notarization converts a private document to a public instrument,
making it admissible in evidence without the necessity of preliminary
6
proof of its authenticity and due execution. A notarized document is by
law entitled to full credit upon its face and it is for this reason that
notaries public must observe the basic requirements in notarizing
documents. Otherwise, the confidence of the public on notorized
documents will be eroded.

WHEREFORE, for breach of the Notarial Law, the notarial commission

of respondent Atty. Jose R. Dimaano, Jr., if still existing, is REVOKED.
He is DISQUALIFIED from being commissioned as notary public for a
period of two (2) years and SUSPENDED from the practice of law for a
period of one (1) year, effective upon receipt of a copy of this Decision,
with WARNING that a repetition of the same negligent act shall be
dealt with more severely.

Let all the courts, through the Office of the Court Administrator, as well
as the IBP and the Office of the Bar Confidant, be notified of this
Decision and be it entered into respondent’s personal record.

SO ORDERED.
D. Notarial Acts

i. Jurat – Section 6, Rule II of the 2004 Rules on

Notarial Practice

SEC. 6. Jurat. - “Jurat” refers to an act in which an individual

on a single occasion:

(a) appears in person before the notary public and presents

an instrument or document;
(b) is personally known to the notary public or identified by
the notary public through competent evidence of identity as
defined by these Rules;
(c) signs the instrument or document in the presence of the
notary; and
(d) takes an oath or affirmation before the notary public as to
such instrument or document.

ii. Acknowledgment – Section 1, Rule II of the

2004 Rules on Notarial Practice;

SECTION 1. Acknowledgment. - “Acknowledgment” refers to

an act in which an individual on a single occasion:

(a) appears in person before the notary public and presents

an integrally complete instrument or document;
(b) is attested to be personally known to the notary public or
identified by the notary public through competent evidence of
identity as defined by these Rules; and -
(c) represents to the notary public that the signature on the
instrument or document was voluntarily affixed by him for the
purposes stated in the instrument or document, declares that
he has executed the instrument or document as his free and
voluntary act and deed, and, if he acts in a particular
representative capacity, that he has the authority to sign in
that capacity.
[G.R. No. 114829. March 1, 1995.]
MAXIMINO GAMIDO Y BUENAVENTURA, Petitioner, v. NEW
BILIBID PRISONS (NBP) OFFICIALS, Respondents.
SYLLABUS
1. LEGAL FORMS; SIMILARITIES AND DIFFERENCE OF JURAT
AND ACKNOWLEDGEMENT. — A jurat “is that part of an affidavit in
which the officer certifies that the instrument was sworn to before him
(Theobald v. Chicago Ry. Co., 75 III. App. 208). It is not a part of a
pleading but merely evidences the fact that the affidavit was properly
made (Young v. Wooden, 265 SW 24, 204 Ky. 694).” (LORENZO M.
TAÑADA and FRANCISCO A. RODRIGO, Modern Legal Forms, vol. I,
sixth ed., 1985 printing, 31). The jurat in the petition in the case also
begins with the words “subscribed and sworn to me.” To subscribe
literally means to write underneath, as one’s name; to sign at the end
of a document (Black’s Law Dictionary, Fifth ed., 1279). To swear
means to put on oath; to declare on oath the truth of a pleading, etc.
(Id., 1298). Accordingly, in a jurat, the affiant must sign the document
in the presence of and take his oath before a notary public or any other
person authorized to administer oaths. As to acknowledgment, Section
1 of Public Act No. 2103 provides: (a) The acknowledgment shall be
made before a notary public or an officer duly authorized by law of the
country to take acknowledgment of instruments or documents in the
place where the act is done. The notary public or the officer taking the
acknowledgment shall certify that the person acknowledging the
instrument or document is known to him and that he is the same
person who executed it, and acknowledged that the same is his free
act and deed. The certificate shall be made under his official seal, if he
is by law required to keep a seal, and if not, his certificate shall so
state. (See Lorenzo M. Tañada and Francisco A. Rodrigo, Modern
Philippine Legal Forms, vol. II, 1964 Fifth ed., 735).
2. LEGAL ETHICS; ATTORNEYS; NOTARY PUBLIC;
ADMINISTRATION OF OATHS AND TAKING OF
ACKNOWLEDGEMENT, DICTATED BY PUBLIC POLICY. — Notaries
public and others authorized by law to administer oaths or to take
acknowledgments should not take for granted the solemn duties
appertaining to their offices. Such duties are dictated by public policy
and are impressed with public interest.
3. ID.; ID.; ID.; EXECUTION OF THE JURAT WITHOUT THE
PRESENCE OF PETITIONER CONSTITUTES GRAVE
MISCONDUCT; CASE AT BAR. — Administratively, as a lawyer
commissioned as a notary public, Atty. Icasiano M. dela Rea
committed grave misconduct when he agreed to prepare the jurat in
the petition in this case in the absence of petitioner Gamido, thereby
making it appear that the latter personally signed the certification of the
petition and took his oath before him when in truth and in fact the said
petitioner did not. WHEREFORE, for grave misconduct, ATTY.
ICASIANO M. DE LA REA is hereby FINED in the sum of FIVE
THOUSAND PESOS (P5,000.00), without prejudice to criminal
prosecution as may be warranted under the circumstances. He is
WARNED that the commission of the same or similar acts in the future
shall be dealt with more severely.
RESOLUTION
DAVIDE, JR., J.:
In the Resolution of 7 September 1994, we required Atty. Icasiano M.
dela Rea of No. 42 National Road corner Bruger Subdivision, Putatan,
Muntinlupa, Metro Manila, to show cause why no disciplinary action
should be taken against him for making it appear in the jurat of the
petition in this case that the petitioner subscribed the verification and
swore to before him, as notary public, on April 1994, when in truth and
in fact the petitioner did not.
In his explanation of 23 December 1994 which was received by this
Court on 25 January 1995, Atty. Icasiano M. dela Rea admitted having
executed the jurat without the presence of petitioner Gamido. He
alleges:chanrob1es virtual 1aw library
Firstly, I must honestly admit that I notarized it not in his presence. I did
it in the honest belief that since it is jurat and not an acknowledgment,
it would be alrights [sic] to do so considering that prior to April 19, 1994
and thereafter, I know Mr. Gamido since I have been in and out of New
Bilibid Prisons, not only because my office is here only across the
Municipal Building of Muntinlupa, Metro Manila but because I handled
a number of cases involving prisoners and guards of NBP as well as
some of its personnels [sic]. That in fact, I attempted to have the
document personally signed by him but considering that I have to
strictly observe rules and regulations of the NBP, particularly on visit, I
did not pursue anymore my intention to have it notarized before
me.chanrobles law library : red
Secondly, that in notarizing the document, I honestly feel and by heart
and in good faith, that as a notary public and as a practicing lawyer, I
could modestly contribute in the orderly administration of justice. The
Gamido family use to come in the office and in fact hiring the legal
services of the undersigned but I refused to handle since I am already
pre-occupied in other cases of similar importance. That on December
13, 1994 I receive a letter from Mr. Gamido, last paragraph of which is
read as follows:jgc:chanrobles.com.ph
"Sanay po Atty. ay maawa kayo sa akin na nagdudusa nang walang
kasalanan. Alang alang po sa kaawa awa kong familiya, kailangan ang
aking kalinga. Ang tulong ninyo ang siyang daan upang ako ay
makaalis sa pagpapahirap ng mga taong walang puso at kaluluwa,
walang awa sa kapua, at sa sambayanang Pilipino."cralaw virtua1aw
library
Then he apologizes to the Court and assures it that henceforth he
would be more careful and circumspect:chanrob1es virtual 1aw library
That I am praying for an apology to the Hon. Supreme Court if what I
did was wrong and the Hon. Supreme Court is assured that perhaps
what transpired was a wrong judgment or honest mistake. That the
Hon. Chairman and its Hon. Members are assured that when I signed
the petition not in Gamido’s presence it is never intended to do a
wrong, to commit illegal or criminal acts but merely in the honest and
sincere belief that it is valid and legal. The Hon. Supreme Court is
assured that it is never intended for malice or for money.
This Hon. Chairman and its Hon. Members are further assured that
from hereon, I am more careful and circumspect in the exercise of this
noble and grand profession and that no amount or consideration will
sway or change this conviction. This is my life. This is the life of my
family.
Atty. dela Rea’s explanation is unsatisfactory; however, his
spontaneous voluntary admission may be considered in mitigation of
his liability.chanrobles virtual lawlibrary
As a notary public for a long time, as evidenced by the fact that his
questioned jurat is indicated to have been entered in Book 45 of his
notarial register, he should know the similarities and differences
between a jurat and an acknowledgment.
A jurat which is normally in this form:chanrob1es virtual 1aw library
Subscribed and sworn to before me in ____________, this ____ day of
__________, affiant having exhibited to me his Community (before,
Residence) Tax Certificate No. __________ issued at __________ on
___________.
"is that part of an affidavit in which the officer certifies that the
instrument was sworn to before him (Theobald v. Chicago Ry. Co., 75
Ill. App. 208). It is not a part of a pleading but merely evidences the fact
that the affidavit was properly made (Young v. Wooden, 265 SW 24,
204 Ky. 694)." (LORENZO M. TAÑADA and FRANCISCO A.
RODRIGO, Modern Legal Forms, vol. I, sixth ed., 1985 printing, 31).
The jurat in the petition in the case also begins with the words
"subscribed and sworn to me."cralaw virtua1aw library
To subscribe literally means to write underneath, as one’s name; to
sign at the end of a document (Black’s Law Dictionary, Fifth ed., 1279).
To swear means to put on oath; to declare on oath the truth of a
pleading, etc. (Id., 1298). Accordingly, in a jurat, the affiant must sign
the document in the presence of and take his oath before a notary
public or any other person authorized to administer oaths.

As to acknowledgment, Section 1 of Public Act No. 2103

provides:chanrob1es virtual 1aw library

(a) The acknowledgment shall be made before a notary public or an

officer duly authorized by law of the country to take acknowledgment of
instruments or documents in the place where the act is done. The
notary public or the officer taking the acknowledgment shall certify that
the person acknowledging the instrument or document is known to him
and that he is the same person who executed it, and acknowledged
that the same is his free act and deed. The certificate shall be made
under his official seal, if he is by law required to keep a seal, and if not,
his certificate shall so state. (See Lorenzo M. Tañada and Francisco A.
Rodrigo, Modern Philippine Legal Forms, vol. II, 1964 Fifth ed.,
735).chanrobles.com.ph : virtual law library

It is obvious that the party acknowledging must likewise appear before

the notary public or any other person authorized to take
acknowledgments of instruments or documents.

The claim or belief of Atty. dela Rea that the presence of petitioner
Gamido was not necessary for the jurat because it is not an
acknowledgment is patently baseless. If this had been his belief since
he was first commissioned as a notary public, then he has been
making a mockery of the legal solemnity of an oath in a jurat. Notaries
public and others authorized by law to administer oaths or to take
acknowledgments should not take for granted the solemn duties
appertaining to their offices. Such duties are dictated by public policy
and are impressed with public interest.

His prior acquaintance and friendship with petitioner Gamido provides

no excuse for non-compliance with his duty. If Atty. dela Rea were
faithful to his duty as a notary public and if he wanted to accommodate
a friend who was inside a prison, he could have gone to the latter’s cell
since he openly admitted that he has "been in and out of New Bilibid
Prisons, not only because [his] office is here only across the Municipal
Building of Muntinlupa, Metro Manila but because [he] handled a
number of cases involving prisoners and guards of NBP as well as
some of its personnels [sic]."cralaw virtua1aw library

Administratively, as a lawyer commissioned as a notary public, Atty.

Icasiano M. dela Rea committed grave misconduct when he agreed to
prepare the jurat in the petition in this case in the absence of petitioner
Gamido, thereby making it appear that the latter personally signed the
certification of the petition and took his oath before him when in truth
and in fact the said petitioner did not.chanrobles.com.ph : virtual law
library

WHEREFORE, for grave misconduct, ATTY. ICASIANO M. DE LA

REA is hereby FINED in the sum of FIVE THOUSAND PESOS
(P5,000.00), without prejudice to criminal prosecution as may be
warranted under the circumstances. He is WARNED that the
commission of the same or similar acts in the future shall be dealt with
more severely.

SO ORDERED.
 iii. Affirmation or Oath – Section 2, Rule II of the
2004 Rules on Notarial Practice
SEC. 2. Affirmation or Oath. - The term “Affirmation” or
“Oath” refers to an act in which an individual on a single
occasion:
(a) appears in person before the notary public;
(b) is personally known to the notary public or identified by
the notary public through competent evidence of identity as
defined by these Rules; and
(c) avows under penalty of law to the whole truth of the
contents of the instrument or document.
iv. Commission – Section 3, Rule II of the 2004
Rules on Notarial Practice
SEC. 3. Commission. - “Commission” refers to the grant of
authority to perform notarial acts and to the written evidence
of the authority.
v. Copy certification – Section 4, Rule II of the
2004 Rules on Notarial Practice
SEC. 4. Copy Certification. - “Copy Certification” refers to a
notarial act in which a notary public:
(a) is presented with an instrument or document that is
neither a vital record, a public record, nor publicly
recordable;
(b) copies or supervises the copying of the instrument or
document;
(c) compares the instrument or document with the copy; and
(d) determines that the copy is accurate and complete.
vi. Notarial Register – Section 5, Rule II of the
2004 Rules on Notarial Practice
SEC. 5. Notarial Register. - “Notarial Register” refers to a
permanently bound book with numbered pages containing a
chronological record of notarial acts performed by a notary
public.
vii. Notarial Certificate – Section 8, Rule II of the
2004 Rules on Notarial Practice
SEC. 8. Notarial Certificate. - “Notarial Certificate” refers to
the part of, or attachment to, a notarized instrument or
document that is completed by the notary public, bears the
notary's signature and seal, and states the facts attested to
by the notary public in a particular notarization as provided
for by these Rules.
E.
viii. Competent Evidence of Identity – Section 12,
Rule II of the 2004 Rules on Notarial Practice
SEC. 12. Competent Evidence of Identity. - The phrase
“competent evidence of identity” refers to the identification of
an individual based on:
(a) at least one current identification document issued by an
official agency bearing the photograph and signature of the
individual; or
(b) the oath or affirmation of one credible witness not privy
to the instrument, document or transaction who is personally
known to the notary public and who personally knows the
individual, or of two credible witnesses neither of whom is
privy to the instrument, document or transaction who each
personally knows the individual and shows to the notary
public documentary identification.
ix. Signature witnessing – Section 14, Rule II of
the 2004 Rules on Notarial Practice
SEC. 14. Signature Witnessing. - The term “signature
witnessing” refers to a notarial act in which an individual on a
single occasion:
(a) appears in person before the notary public and presents
an instrument or document;
(b) is personally known to the notary public or identified by
the notary public through competent evidence of identity as
defined by these Rules; and
(c) signs the instrument or document in the presence of the
notary public.
x. Authority to certify the affixing of a signature
by thumb or other mark – Section 1(b), Rule IV
of the 2004 Rules on Notarial Practice
(b) A notary public is authorized to certify the affixing of a
signature by thumb or other mark on an instrument or
document presented for notarization if:
(1) the thumb or other mark is affixed in the presence of the
notary public and of two (2) disinterested and unaffected
witnesses to the instrument or document;
(2) both witnesses sign their own names in addition to the
thumb or other mark;
(3) the notary public writes below the thumb or other mark:
"Thumb or Other Mark affixed by (name of signatory by
mark) in the presence of (names and addresses of
witnesses) and undersigned notary public"; and
(4) the notary public notarizes the signature by thumb or
other mark through an acknowledgment, jurat, or signature
witnessing.
xi. Signing on behalf of a person physically
unable to sign or make a mark – Section 1(c),
Rule IV of the 2004 Rules on Notarial Practice
(c) A notary public is authorized to sign on behalf of a person
who is physically unable to sign or make a mark on an
instrument or document if:
(1) the notary public is directed by the person unable to sign
or make a mark to sign on his behalf;
(2) the signature of the notary public is affixed in the
presence of two disinterested and unaffected witnesses to
the instrument or document;
(3) both witnesses sign their own names;
(4) the notary public writes below his signature: “Signature
affixed by notary in presence of (names and addresses of
person and two [2] witnesses)”; and
(5) the notary public notarizes his signature by
acknowledgment or jurat.
Admissibility of Documents
1. Classes of documents and Proof of private
documents, Sections 19 & 20, Rule 132 of the
Revised Rules on Evidence
Section 19. Classes of documents. – For the purpose of
their presentation in evidence, documents are either public
or private. Public documents are:
(a) The written official acts, or records of the sovereign
authority, official bodies and tribunals, and public officers,
whether of the Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public except
last wills and testaments;
(c) Documents that are considered public documents under
treaties and conventions which are in force between the
Philippines and the country of source; and
(d) Public records, kept in the Philippines, of private
documents required by law to be entered therein. All other
writings are private.
Section 20. Proof of private document[s]. – Before any
private document offered as authentic is received in
evidence, its due execution and authenticity must be proved
by any of the following means:
(a) By anyone who saw the document executed or written;
(b) By evidence of the genuineness of the signature or
handwriting of the maker[;] or
(c) By other evidence showing its due execution and
authenticity. Any other private document need only be
identified as that which it is claimed to be.

2. Public documents as evidence and Proof of notarial

documents, Sections 23 & 30, Rule 132 of the
Revised Rules on Evidence

Section 23. Public documents as evidence. – Documents

consisting of entries in public records made in the
performance of a duty by a public officer are prima facie
evidence of the facts therein stated. All other public
documents are evidence, even against a third person, of the
fact which gave rise to their execution and of the date of the
latter.

Section 30. Proof of notarial documents. – Every instrument

duly acknowledged or proved and certified as provided by
law, may be presented in evidence without further proof, the
certificate of acknowledgment being prima facie evidence of
the execution of the instrument or document involved.
G.R. No. L-46892 September 30, 1981 EIGHTY ONE THOUSAND
FOUR HUNDRED TWENTY
(181,420) SQUARE METERS.
HEIRS OF AMPARO DEL ROSARIO, plaintiffs-appellees,
All points referred to are
vs.
indicated on the plan and are
AURORA O. SANTOS, JOVITA SANTOS GONZALES, ARNULFO O.
marked on the ground as
SANTOS, ARCHIMEDES O. SANTOS, ERMELINA SANTOS
follows: ...
RAVIDA, and ANDRES O. SANTOS, JR., defendants-appellants.

of which above-described property, I own one-half

(1/2) interest thereof being my attorney's fee, and
the said 20,000 square meters will be transferred
GUERRERO, J.: unto the VENDEE as soon as the title thereof has
been released by the proper authority or
1 authorities concerned:
The Court of Appeals, in accordance with Section 31 of the Judiciary
Act of 1948, as amended, certified to Us the appeal docketed as CA-
G.R. No. 56674-R entitled "Amparo del Rosario, plaintiff-appellee, vs. That the parties hereto hereby agree that the
Spouses Andres Santos and Aurora Santos, defendants-appellants," VENDOR shall execute a Deed of Confirmation of
as only questions of law are involved. Deed of Sale in favor of the herein VENDEE as
soon as the title has been released and the
subdivision plan of said Lot 1 has been approved
On January 14, 1974, Amparo del Rosario filed a complaint against the by the Land Registration Commissioner.
spouses Andres F. Santos and Aurora O. Santos, for specific
performance and damages allegedly for failure of the latter to execute
the Deed of Confirmation of Sale of an undivided 20,000 square IN WITNESS WHEREOF, I have hereunto set my
meters of land, part of Lot 1, Psu-206650, located at Barrio Sampaloc, hand this 28th day of September, 1964, in the City
Tanay, Rizal, in malicious breach of a Deed of Sale (Exhibit A or 1) of Manila, Philippines.
dated September 28, 1964.
s/ ANDRES F. SANTOS t/ ANDRES F. SANTOS
Amparo del Rosario died on Sept. 21, 1980 so that she is now
substituted by the heirs named in her will still undergoing probate With My Marital Consent:
proceedings. Andres F. Santos also died, on Sept. 5, 1980, and he is
substituted by the following heirs: Jovita Santos Gonzales, Arnulfo O.
Santos, Archimedes O. Santos, Germelina Santos Ravida, and Andres s/ Aurora O. Santos (Wife) t/ Aurora O. Santos
O. Santos, Jr. (Wife)

The Deed of Sale (Exh. A or 1) is herein reproduced below: SIGNED IN THE PRESENCE OF: s/ Felicitas C.
Moro s/ Corona C. Venal
DEED OF SALE
REPUBLIC OF THE PHILIPPINES) ) SS.
KNOW ALL MEN BY THESE PRESENTS:
BEFORE ME, a Notary Public for and in Rizal,
Philippines, personally appeared Andres F.
I, ANDRES F. SANTOS, of legal age, married to Santos, with Res. Cert. No. 4500027 issued at
Aurora 0. Santos, Filipino and resident cf San Paranaque, Rizal, on Jan. 9, 1964, B-0935184
Dionisio, Paranaque, Rizal, Philippines, for and in issued at Paranaque, Rizal on April 15, 1964, and
consideration of the sum of TWO THOUSAND (P Aurora 0. Santos, with Res. Cert. No. A-4500028
2,000.00) PESOS, Philippine Currency, the receipt issued at Paranaque, Rizal, on Jan. 9, 1964,
whereof is hereby acknowledged, do hereby giving her marital consent to this instrument, both
SELLS, CONVEYS, and TRANSFERS (sic) unto of whom are known to me and to me known to be
Amparo del Rosario, of legal age, married to Fidel the same persons who executed the foregoing
del Rosario but with legal separation, Filipino and instruments and they acknowledged to me that the
resident of San Dionisio, Paranaque, Rizal, same is their free act and voluntary deed.
Philippines that certain 20,000 square meters to
be segregated from Lot 1 of plan Psu-206650
along the southeastern portion of said lot, which IN WITNESS WHEREOF, I have hereunto signed
property is more particularly described as follows: this instrument and affixed my notarial seal this lst
day of October, 1964, in Pasig, Rizal, Philippines.
A parcel of land (Lot 1 as
shown on plan Psu-206650, Doc. No. 1792; Page No. 85; Book No. 19; Series
situated in the Barrio of of 1964.
Sampaloc, Municipality of
Tanay, Province of Rizal.
s/ FLORENCIO LANDRITO t/ FLORENCIO
Bounded on the SW., along
LANDRITO
lines 1-2-3, by Lot 80 of Tanay
Public Land Subdivision, Pls-
2
39; on the NW., along lines 3- NOTARY PUBLIC Until December 31, 1965
4-5, by Lot 2; and along lines
5-6-7-8-9-10-11, by Lot 6; on
Plaintiff claimed fulfillment of the conditions for the execution of the
the NE., along lines 11-12-13,
Deed of Confirmation of Sale, namely: the release of the title of the lot
by Lot 3: and along lines 13-
and the approval of the subdivision plan of said lot by the Land
1415, by Lot 4, all of plan Psu-
Registration Commission. She even enumerated the titles with their
206650; and on the SE., along
corresponding land areas derived by defendants from the aforesaid lot,
line 15-1, by Lot 5 of plan
to wit:
Psu- 206650 ... ; containing
an area of ONE HUNDRED
 (a) TCT 203580 — 30,205 sq. meters admitted, adopted as their own and marked as Exhibits 1 to 17. In
addition, the latter offered Exhibit 18, which was their reply to plaintiff's
letter of demand dated December 21, 1973.
(b) TCT 203581 — 19, 790 sq. meters

From the various pleadings filed in this case by plaintiff, together with
(c) TCT 167568 — 40,775 sq. meters
the annexes and affidavits as well as the exhibits offered in evidence at
the pre-trial, the Court a quo found the following facts as having been
In a motion to dismiss, defendants pleaded, inter alia, the defenses of duly established since defendant failed to meet them with
lack of jurisdiction of the court a quo over the subject of the action and countervailing evidence:
lack of cause of action allegedly because there was no allegation as to
the date of the approval of the subdivision plan, no specific statement
In February, 1964, Teofilo Custodia owner of a
that the titles therein mentioned were curved out of Lot I and no clear
parcel of unregistered land with an area of
showing when the demands were made on the defendants. They
approximately 220,000 square meters in Barrio
likewise set up the defense of prescription allegedly because the deed
Sampaloc, Tanay, Rizal, hired Attorney Andres F.
of sale was dated September 28, 1964 and supposedly ratified October
Santos "to cause the survey of the above-
1, 1964 but the complaint was filed only on January 14, 1974, a lapse
mentioned property, to file registration proceedings
of more than nine years when it should have been filed within five
in court, to appear and represent him in all
years from 1964 in accordance with Article 1149, New Civil Code.
government office relative thereto, to advance all
expenses for surveys, taxes to the government,
Defendant also claimed that the demand set forth in the complaint has court fees, registration fees ... up to the issuance
been waived, abandoned or otherwise extinguished. It is alleged that of title in the name" of Custodia. They agreed that
the deed of sale was "only an accommodation graciously extended, out after the registration of the title in Custodio's name,
of close friendship between the defendants and the plaintiff and her and "after deducting all expenses from the total
casual business partner in the buy and sell of real estate, one Erlinda area of the property," Custodio would assign and
3
Cortez;" that in order to allay the fears of plaintiff over the non- deliver to Santos "one-half (1/2) share of the whole
collection of the debt of Erlinda Cortez to plaintiff in various sums property as appearing in the certificate of title so
exceeding P 2,000.00, defendants, who were in turn indebted to issued." Exh. B or 2).
Erlinda Cortez in the amount of P 2,000.00, voluntarily offered to
transfer to plaintiff their inexistent but expectant right over the lot in
On March 22, 1964, Custodio's land was surveyed
question, the same to be considered as part payment of Erlinda Cortez'
under plan Psu-226650 (Exh. D or 4). It was
indebtedness; that as Erlinda Cortez later on paid her creditor what
divided into six (6) lots, one of which was a road
was then due, the deed of sale had in effect been extinguished.
lot. The total area of the property as surveyed was
Defendants thereby characterized the said deed of sale as a mere
211,083 square meters. The respective areas of
tentative agreement which was never intended nor meant to be ratified
the lots were as follows:
by and acknowledged before a notary public. In fact, they claimed that
they never appeared before Notary Public Florencio Landrito.
Lot 1 181,420
square
Finally, defendants alleged that the claim on which the action or suit is
meters
founded is unenforceable under the statute of frauds and that the
cause or object of the contract did not exist at the time of the Lot 2 7,238
transaction. square
meters
Lot 3 7,305
After an opposition and a reply were filed by the respective parties, the square
Court a quo resolved to deny the motion to dismiss of defendants. meters
Defendants filed their answer with counterclaim interposing more or Lot 4 5,655
less the same defenses but expounding on them further. In addition, square
they claimed that the titles allegedly derived by them from Lot 1 of meters
Annex A or I were cancelled and/or different from said Lot I and that Lot 5 5,235
the deed of sale was simulated and fictitious, plaintiff having paid no square
amount to defendants; and that the deed was entrusted to plaintiff's meters
care and custody on the condition that the latter; (a) would secure the Road Lot 6 4,230
written consent of Erlinda Cortez to Annex A or I as part payment of square
what she owed to plaintiff; (b) would render to defendants true meters
accounting of collections made from Erlinda showing in particular the TOTAL 211,083
consideration of 2,000.00 of Annex A or I duly credited to Erlinda's square
4
account. meters

Plaintiff filed a reply and answer to counterclaim and thereafter a xxx xxx xxx
motion for summary judgment and/or judgment on the pleadings on the
ground that the defenses of defendants fail to tender an issue or the
same do not present issues that are serious enough to deserve a trial On December 27, 1965, a decree of registration
5
on the merits, submitting on a later date the affidavit of merits. No. N-108022 was issued in Land Registration
Defendants filed their corresponding opposition to the motion for Case No. N-5023, of the Court of First Instance of
summary judgment and/or judgment on the pleadings. Not content with Rizal, LRC Record No. N-27513, in favor of Teofilo
the pleadings already submitted to the Court, plaintiff filed a reply while Custodia married to Miguela Perrando resident of
defendants filed a supplemental opposition. Tanay, Rizal. On March 23, 1966, Original
Certificate of Title No. 5134 (Exh. Q or 17) was
issued to Custodio for Lots 1, 2, 3, 4 and 5, Psu-
With all these pleadings filed by the parties in support of their 206650, with a total area of 206,853 square
respective positions, the Court a quo still held in abeyance plaintiff's meters. The areas of the five (5) lots were as
motion for summary judgment or judgment on the pleadings pending follows:
the pre-trial of the case. At the pre-trial, defendants offered by way of
compromise to pay plaintiff the sum of P2,000.00, the consideration
stated in the deed of sale. But the latter rejected the bid and insisted on Lot 1 181,420
the delivery of the land to her. Thus, the pre-trial proceeded with the square
presentation by plaintiff of Exhibits A to Q which defendants practically meters
Lot 2 7,238 Lot 5-A 30,205 square
square meters
meters
Lot 3 7,305 Lot 5-B 19,795 square
square meters
meters
Lot 4 5,655 TOTAL 50,000 square
square meters
meters
Lot 5 5,235
square Upon registration of Psd-78008 on October 3,
meters 1967, Santos' TCT No. 167585 (Exh. J) was
cancelled and TCT No. 203578 for Lot 5- A and
TCT No. 203579 for Lot 5-B were supposed to
In April to May, 1966, a consolidation-subdivision
have been issued to Santos (See Entry 6311 in
survey (LRC) Pcs-5273 (Exh. E or 5) was made on
Exh. J or 10). Actually, TCT No. 203580 was
the above lots converting them into six (6) new lots
issued for Lot 5-A (Exh. K or 1 1), and TCT No.
as follows:
203581 for Lot 5-B (Exh. L or 12), both in the
name of Andres F. Santos.
xxx xxx xxx
Out of Custodio's original Lot 1, Psu-206650, with
Lot 1 20,000 an area of 181,420 square meters, Santos was
square given a total of 90,775 square meters, registered
meters in his name as of October 3, 1967 under three (3)
Lot 2 40,775 titles, namely:
square
meters
Lot 3 50,000
square
meters TCT No.
Lot 4 40,775 167585 for
square Lot 4 Pcs- 40,775 sq.
meters 5273 m.
Lot 5 50,000 (Exh. J or 10)
square TCT No.
meters 203580 for
Road Lot 6 5,303 Lot 5-A Psd- 30,205 sq.
square 78008 m.
meters (Exh. K or 11)
TOTAL 206,853 TCT No.
square 203581 for
meters Lot 5-B Psd- 19,795 sq.
78008 m.
(Exh. L or 12)
On June 22, 1966, the consolidation-subdivision
plan (LRC) Pcs-5273 (Exh. E or 5) was approved 90,775
sq.m.
by the Land Registration Commission and by the
Court of First Instance of Rizal in an order dated
July 2, 1966 (Entry No. 61037 T-167561, Exh. Q). plus one-half of the road lot, Lot 6, PCS-5273, with
Upon its registration, Custodio's O.C.T. No. 5134 an area of 5,303 square meters, which is
(Exh. Q) was cancelled and TCT Nos. 167561, registered jointly in the name of Santos and
167562, 167563, 167564 (Exh. G), 167565 (Exh. Custodio (Exh. B & E)
6

H and 167566 were issued for the six lots in the

name of Custodio (Entry No. 61035, Exh. Q).
On June 23, 1966, Custodio conveyed to Santos
Lots 4 and 5, Pcs-5273 with a total area of 90,775
square meters (Exh. B or 2) described in
Custodio's TCT No. 167564 (Exh. G or 7) and TCT
No. 167565 (Exh. H or 8), plus a one-half interest
in the Road Lot No. 6, as payment of Santos'
attorney's fees and advances for the registration of
Custodio's land.
Upon registration of the deed of conveyance on
July 5, 1966, Custodio's TCT Nos. 167564 and
167565 (Exhs. G and H) were cancelled. TCT No.
167568 (Exh. I or 9) for Lot 4 and TCT No. 167585
(Exh. J or 10) for Lot 5 were issued to Santos.
On September 2, 1967, Santos' Lot 5, with an area
of 50,000 square meters was subdivided into two
(2) lots, designated as Lots 5-A and 5-B in the plan
Psd-78008 (Exh. F or 6), with the following areas:
The court a quo thereupon concluded that there are no serious factual
issues involved so the motion for summary judgment may be properly
granted. Thereafter, it proceeded to dispose of the legal issues raised
by defendants and rendered judgment in favor of plaintiff. The
dispositive portion of the decision states as follows:
WHEREFORE, defendants Andres F. Santos and
Aurora Santos are ordered to execute and convey
to plaintiff Amparo del Rosario, within ten (10)
days from the finality of this decision, 20,000
square meters of land to be taken from the
southeastern portion of either Lot 4, Pcs-5273,
which has an area of 40,775 square meters,
described in TCT No. 167568 (Exh. I or 9) of from
their LOL 5-A. with an area of 30,205 square
meters, described in TCI No. 203; O (Exh. K or
11). The expenses of segregating the 20,000
square meters portion shall be borne fqually by the
parties. rhe expenses for the execution and
registration of the sale shall be borne by the
defendants (Art. 1487, Civil Code). Since the
defendants compelled the plaintiff to litigate and
they failed to heed plainliff's just demand, they are
 further ordered to pay the plaintiff the sum of
P2,000.00 as attorney's fees and the costs of this
action.
7 admission of the genuineness of the document is meant that the party
SO ORDERED.
Aggrieved by the aforesaid decision, the defendant's filed all appeal to
the Court of Appeals submitting for resolution seven assignments of
errors, to wit:
I. The lower court erred in depriving the appellants
of their right to the procedural due process.
II. The lower court erred in holding that the
appellee's claim has not been extinguished.
III. The lower court erred in sustaining appellee's
contention that there are no other unwritten
conditions between the appellants and the
appellee except those express in Exh. "1" or "A",
and that Erlinda Cortez' conformity is not required
to validate the appellants' obligation.
IV. The lower court erred in holding that Exh. "l" or
"A" is not infirmed and expressed the true intent of
the parties.
V. The lower court erred in declaring that the
appellants are co-owners of the lone registered
owner Teofilo Custodia.
VI. The lower court erred in ordering the appellants
to execute and convey to the appellee 20,000 sq.
m. of land to be taken from the southeastern
portion of either their lot 4, Pcs-5273, which has an
area of 40,775 sq.m., described in T.C.T. No.
167568 (Exh. 9 or 1), or from their lot No. 5-A, with
an area of 30,205 sq.m. described in T.C.T. No.
203580 (Exh. 11 or K), the expenses of
segregation to be borne equally by the appellants
and the appellee and the expenses of execution
and registration to be borne by the appellants.
VII.
Thelowercourterredinorderingtheappellantstopayto
the appellee the sum of P2,000. 00 as attorney's
8
fee and costs.
The first four revolve on the issue of the propriety of the rendition of
summary judgment by the court a quo, which concededly is a question
of law. The last three assail the summary judgment itself. Accordingly,
the Court of Appeals, with whom the appeal was filed, certified the
records of the case to this Court for final determination.
For appellants herein, the rendition of summary judgment has deprived
them of their right to procedural due process. They claim that a trial on
the merits is indispensable in this case inasmuch as they have denied
under oath all the material allegations in appellee's complaint which is
based on a written instrument entitled "Deed of Sale", thereby putting
in issue the due execution of said deed.
Appellants in their opposition to the motion for summary judgment
and/or judgment on the pleadings, however, do not deny the
genuineness of their signatures on the deed of sale.
(Par. 3 of said Motion, p. 101, Record on Appeal). They do not contest
the words and figures in said deed except in the acknowledgment
portion thereof where certain words were allegedly cancelled and
changed without their knowledge and consent and where, apparently,
they appeared before Notary Public Florencio Landrito when, in fact,
they claimed that they did not. In effect, there is an admission of the
due execution and genuineness of the document because by the
admission of the due execution of a document is meant that the party
whose signature it bears admits that voluntarily he signed it or that it
was signed by another for him and with his authority; and the
whose signature it bears admits that at the time it was signed it was in
the words and figures exactly as set out in the pleading of the party
relying upon it; and that any formal requisites required by law, such as
swearing and acknowledgment or revenue stamps which it requires,
9
are waived by him.
As correctly pointed out by the court a quo, the alleged false
notarization of the deed of sale is of no consequence. For a sale of real
property or of an interest therein to be enforceable under the Statute of
10
Frauds, it is enough that it be in writing. It need not be notarized. But
the vendee may avail of the right under Article 1357 of the New Civil
Code to compel the vendor to observe the form required by law in
order that the instrument may be registered in the Registry of
11
Deeds. Hence, the due execution and genuineness of the deed of
sale are not really in issue in this case. Accordingly, assigned error I is
without merit.
What appellants really intended to prove through the alleged false
notarization of the deed of sale is the true import of the matter, which
according to them, is a mere tentative agreement with appellee. As
such, it was not intended to be notarized and was merely entrusted to
appellee's care and custody in order that: first, the latter may secure
the approval of one Erlinda Cortez to their (appellants') offer to pay a
debt owing to her in the amount of P2,000.00 to appellee instead of
paying directly to her as she was indebted to appellee in various
amounts exceeding P2,000.00; and second once the approval is
secured, appellee would render an accounting of collections made
from Erlinda showing in particular the consideration of P2,000.00 of the
deed of sale duly credited to Erlinda's account.
According to appellants, they intended to prove at a full dress trial the
material facts: (1) that the aforesaid conditions were not fulfilled; (2)
that Erlinda Cortez paid her total indebtedness to appellee in the
amount of P14,160.00, the P2,000.00 intended to be paid by appellant
included; and (3) that said Erlinda decided to forego, renounce and
refrain from collecting the P2,000.00 the appellants owed her as a
countervance reciprocity of the countless favors she also owes them.
Being conditions which alter and vary the terms of the deed of sale,
such conditions cannot, however, be proved by parol evidence in view
of the provision of Section 7, Rule 130 of the Rules of Court which
states as follows:
Sec. 7. Evidence of written agreements when the
terms of an agreement have been reduced to
writing, it is to be considered as containing all such
terms, and, therefore, there can be, between the
parties and their successors in interest, no
evidence of the terms of the agreement other than
the contents of the writing, except in the following
cases:
(a) Where a mistake or imperfection of the writing,
or its failure to express the true intent and
agreement of the parties, or the validity of the
agreement is put in issue by the pleadings;
(b) When there is an intrinsic ambiguity in the
writing. The term "agreement" includes wills."
The parol evidence rule forbids any addition to or contradiction of the
terms of a written instrument by testimony purporting to show that, at or
before the signing of the document, other or different terms were orally
agreed upon by the parties.
12
While it is true, as appellants argue, that Article 1306 of the New Civil
Code provides that "the contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem
convenient, provided that they are not contrary to law, morals, good
customs, public order, or public policy" and that consequently,
appellants and appellee could freely enter into an agreement imposing
as conditions thereof the following: that appellee secure the written
conformity of Erlinda Cortez and that she render an accounting of all
collections from her, said conditions may not be proved as they are not
embodied in the deed of sale.
The only conditions imposed for the execution of the Deed of
Confirmation of Sale by appellants in favor of appellee are the release
of the title and the approval of the subdivision plan. Thus, appellants
may not now introduce other conditions allegedly agreed upon by them
because when they reduced their agreement to writing, it is presumed
that "they have made the writing the only repository and memorial of
truth, and whatever is not found in the writing must be understood to
13
have been waived and abandoned."
Neither can appellants invoke any of the exceptions to the parol
evidence rule, more particularly, the alleged failure of the writing to
express the true intent and agreement of the parties. Such an
exception obtains where the written contract is so ambiguous or
obscure in terms that the contractual intention of the parties cannot be
understood from a mere reading of the instrument. In such a case,
extrinsic evidence of the subject matter of the contract, of the relations
of the parties to each other, and of the facts and circumstances
surrounding them when they entered into the. contract may be
received to enable the court to make a proper interpretation of the
14
instrumental. In the case at bar, the Deed of Sale (Exh. A or 1) is
clear, without any ambiguity, mistake or imperfection, much less
obscurity or doubt in the terms thereof. We, therefore, hold and rule
that assigned errors III and IV are untenable.
According to the court a quo, "(s)ince Santos, in his Opposition to the
Motion for Summary Judgment failed to meet the plaintiff's evidence
with countervailing evidence, a circumstance indicating that there are
no serious factual issues involved, the motion for summary judgment
may properly be granted." We affirm and sustain the action of the trial
court.
Indeed, where a motion for summary judgment and/or judgment on the
pleadings has been filed, as in this case, supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such
facts as may be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify as to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred to in the
15
affidavitshalibeattachedtheretoorservedtherewith.
Examining the pleadings, affidavits and exhibits in the records, We find
that appellants have not submitted any categorical proof that Erlinda
Cortez had paid the P2,000.00 to appellee, hence, appellants failed to
substantiate the claim that the cause of action of appellee has been
extinguished. And while it is true that appellants submitted a receipt for
P14,160.00 signed by appellee, appellants, however, have stated in
their answer with counterclaim that the P2,000.00 value of the property
covered by the Deed of Sale, instead of being credited to Erlinda
Cortez, was conspicuously excluded from the accounting or receipt
signed by appellee totalling P14,160.00. The aforesaid receipt is no
proof that Erlinda Cortez subsequently paid her P2,000.00 debt to
appellee. As correctly observed by the court a quo, it is improbable that
Cortez would still pay her debt to appellee since Santos had already
paid it.
Appellants' claim that their P2,000.00 debt to Erlinda Cortez had been
waived or abandoned is not also supported by any affidavit, document
or writing submitted to the court. As to their allegation that the
appellee's claim is barred by prescription, the ruling of the trial court
that only seven years and six months of the ten-year prescription
period provided under Arts. 1144 and 155 in cases of actions for
specific performance of the written contract of sale had elapsed and
that the action had not yet prescribed, is in accordance with law and,
therefore, We affirm the same.
The action of the court a quo in rendering a summary judgment has
been taken in faithful compliance and conformity with Rule 34, Section
3, Rules of Court, which provides that "the judgment sought shall be
rendered forthwith if the pleadings, depositions, and admissions on file
together with the affidavits, show that, except as to the amount of
damages, there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. "
Resolving assignments of errors, V, VI, and VII which directly assail the
summary judgment, not the propriety of the rendition thereof which We
have already resolved to be proper and correct, it is Our considered
opinion that the judgment of the court a quo is but a logical
consequence of the failure of appellants to present any bona
fide defense to appellee's claim. Said judgment is simply the
application of the law to the undisputed facts of the case, one of which
is the finding of the court a quo, to which We agree, that appellants are
owners of one-half (1/2) interest of Lot I and, therefore, the fifth
assignment of error of appellants is without merit.
By the terms of the Deed of Sale itself, which We find genuine and not
infirmed, appellants declared themselves to be owners of one-half (1/2)
interest thereof. But in order to avoid appellee's claim, they now
contend that Plan Psu-206650 where said Lot I appears is in the
exclusive name of Teofilo Custodio as the sole and exclusive owner
thereof and that the deed of assignment of one-half (1/2) interest
thereof executed by said Teofilo Custodio in their favor is strictly
personal between them. Notwithstanding the lack of any title to the said
lot by appellants at the time of the execution of the deed of sale in
favor of appellee, the said sale may be valid as there can be a sale of
an expected thing, in accordance with Art. 1461, New Civil Code,
which states:
Art. 1461. Things having a potential existence may
be the object of the contract of sale.
The efficacy of the sale of a mere hope or
expectancy is deemed subject to the condition that
the thing will come into existence.
The sale of a vain hope or expectancy is void.
In the case at bar, the expectant right came into existence or
materialized for the appellants actually derived titles from Lot I .
We further reject the contention of the appellants that the lower court
erred in ordering the appellants to execute and convey to the appellee
20,000 sq.m. of land to be taken from the southeastern portion of either
their Lot 4, Pcs-5273, which has an area of 40,775 sq.m., described in
T.C.T. No. 167568 (Exh. 9 or 1), or from their Lot No. 5-A, with an area
of 30,205 sq.m. described in T.C.T. No. 203580 (Exh. 11 or K), the
expenses of segregation to be borne equally by the appellants and the
appellee and the expenses of execution and registration to be borne by
the appellants. Their argument that the southeastern portion of Lot 4 or
Lot 5-A is no longer the southeastern portion of the bigger Lot 1, the
latter portion belonging to the lone registered owner, Teofilo Custodia
is not impressed with merit. The subdivision of Lot I between the
appellants and Teofilo Custodio was made between themselves alone,
without the intervention, knowledge and consent of the appellee, and
therefore, not binding upon the latter. Appellants may not violate nor
escape their obligation under the Deed of Sale they have agreed and
signed with the appellee b3 simply subdividing Lot 1, bisecting the
same and segregating portions to change their sides in relation to the
original Lot 1.
Finally, considering the trial court's finding that the appellants
compelled the appellee to litigate and they failed to heed appellee's
just demand, the order of the court awarding the sum of P2,000.00 as
attorney's fees is just and lawful, and We affirm the same.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment
appealed from is hereby AFFIRMED in toto, with costs against the
appellants.
SO ORDERED.
[G.R. NO. 140608: September 23, 2004]
PERMANENT SAVINGS AND LOAN BANK, Petitioner, v. MARIANO
VELARDE, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
In a complaint for sum of money filed before the Regional Trial Court of
Manila (Branch 37), docketed as Civil Case No. 94-71639, petitioner
Permanent Savings and Loan Bank sought to recover from respondent
Mariano Velarde, the sum of P1,000,000.00 plus accrued interests and
penalties, based on a loan obtained by respondent from petitioner
bank, evidenced by the following: (1) promissory note dated
1 (b) THE CAUSE OF ACTION, CONCLUDING ARGUENTI THAT IT
September 28, 1983; (2) loan release sheet dated September 28,
2 EXISTS, IS BARRED BY PRESCRIPTION AND/OR LACHES.
1983; and (3) loan disclosure statement dated September 28,
3
1983. Petitioner bank, represented by its Deputy Liquidator after it was
placed under liquidation, sent a letter of demand to respondent on July
4
27, 1988, demanding full payment of the loan. Despite receipt of said
5
demand letter, respondent failed to settle his account. Another letter of
6 15
demand was sent on February 22, 1994, and this time, respondent's
counsel replied, stating that the obligation "is not actually existing but
covered by contemporaneous or subsequent agreement between the
7 On appeal, the Court of Appeals agreed with the trial court and
parties '"
In his Answer, respondent disclaims any liability on the instrument,
thus:
2. The allegations in par. 2, Complaint, on the existence of the alleged
loan of P1-Million, and the purported documents evidencing the same,
only the signature appearing at the back of the promissory note, Annex
"A" seems to be that of herein defendant. However, as to any liability
arising therefrom, the receipt of the said amount of P1-Million shows
that the amount was received by another person, not the herein
defendant. Hence, no liability attaches and as further stated in the
special and affirmative defenses that, assuming the promissory note
exists, it does not bind much less is there the intention by the parties to
bind the herein defendant. In other words, the documents relative to
8
the loan do not express the true intention of the parties.
Respondent's Answer also contained a denial under oath, which reads:
I, MARIANO Z. VELARDE, of age, am the defendant in this case, that I
caused the preparation of the complaint and that all the allegations
thereat are true and correct; 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
9 Before going into the merits of the petition, the Court finds it necessary
the real intention of the parties as stated in the defenses; '
During pre-trial, the issues were defined as follows:
1. Whether or not the defendant has an outstanding loan obligation
granted by the plaintiff;
2. Whether or not the defendant is obligated to pay the loan including
interests and attorney's fees;
3. Whether or not the defendant has really executed the Promissory
Note considering the doubt as to the genuineness of the signature and
as well as the non-receipt of the said amount;
4. Whether or not the obligation has prescribed on account of the lapse
of time from date of execution and demand for enforcement;
andcralawlibrary
5. Whether or not the defendant is entitled to his counterclaim and
10
other damages.
On September 6, 1995, petitioner bank presented its sole witness,
Antonio Marquez, the Assistant Department Manager of the Philippine
Deposit Insurance Corporation (PDIC) and the designated Deputy
Liquidator for petitioner bank, who identified the Promissory
11 12
Note dated September 28, 1983, the Loan Release Sheet dated
September 28, 1983, and the Disclosure Statement of Loan Credit
13
Transaction.
After petitioner bank rested its case, respondent, instead of presenting
evidence, filed with leave of court his demurrer to evidence, alleging
the grounds that:
(a) PLAINTIFF FAILED TO PROVE ITS CASE BY
PREPONDERANCE OF EVIDENCE.
14
The trial court, in its Decision dated January 26, 1996, found merit in
respondent's demurrer to evidence and dismissed the complaint
including respondent's counterclaims, without pronouncement as to
costs.
16
affirmed the dismissal of the complaint in its Decision dated October
17
27, 1999. The appellate court found that petitioner failed to present
any evidence to prove the existence of respondent's alleged loan
obligations, considering that respondent denied petitioner's allegations
in its complaint. It also found that petitioner bank's cause of action is
18
already barred by prescription.
Hence, the present Petition for Review on Certiorariunder Rule 45 of
the Rules Court, with the following assignment of errors:
4.1
THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER
FAILED TO ESTABLISH THE GENUINENESS, DUE EXECUTION
AND AUTHENTICITY OF THE SUBJECT LOAN DOCUMENTS.
4.2
THE COURT OF APPEALS ERRED IN HOLDING THAT
PETITIONER'S CAUSE OF ACTION IS ALREADY BARRED BY
19
PRESCRIPTION AND OR LACHES.
to reiterate the well-settled rule that only questions of law may be
raised in a Petition for Review on Certiorari under Rule 45 of the Rules
20
of Court, as "the Supreme Court is not a trier of facts." It is not our
function to review, examine and evaluate or weigh the probative value
21
of the evidence presented.
There are, however, exceptions to the rule, e.g., when the factual
inferences of the appellate court are manifestly mistaken; the judgment
is based on a misapprehension of facts; or the CA manifestly
overlooked certain relevant and undisputed facts that, if properly
22
considered, would justify a different legal conclusion. This case falls
under said exceptions.
The pertinent rule on actionable documents is found in Rule 8, Section
7 of the Rules of Court which provides that when the cause of action is
anchored on a document, the genuineness or due execution of the
instrument shall be deemed impliedly admitted unless the defendant,
under oath, specifically denies them, and sets forth what he claims to
be the facts.
It was the trial court's opinion that:
The mere presentation of supposed documents regarding the loan, but
absent the testimony of a competent witness to the transaction and the
documentary evidence, coupled with the denial of liability by the
defendant does not suffice to meet the requisite preponderance of
evidence in civil cases. The documents, standing alone, unsupported
by independent evidence of their existence, have no legal basis to
stand on. They are not competent evidence. Such failure leaves this
Court without ample basis to sustain the plaintiff's cause of action and
other reliefs prayed for. The loan document being challenged. (sic)
Plaintiff did not exert additional effort to strengthen its case by the
required preponderance of evidence. On this score, the suit must be
23
dismissed.
The Court of Appeals concurred with the trial court's finding and
affirmed the dismissal of the complaint, viz.:
'The bank should have presented at least a single witness qualified to
testify on the existence and execution of the documents it relied upon
to prove the disputed loan obligations of Velarde. - This falls short of
the requirement that (B)efore any private writing may be received in
evidence, its due execution and authenticity must be proved either: (a)
By anyone who saw the writing executed; (b) By evidence of the
genuineness of the handwriting of the maker; or (c) By a subscribing
witness. (Rule 132, Sec. 21, Rules of Court)'
It is not true, as the Bank claims, that there is no need to prove the
loan and its supporting papers as Velarde has already admitted these.
Velarde had in fact denied these in his responsive pleading. And
consistent with his denial, he objected to the presentation of Marquez
as a witness to identify the Exhibits of the Bank, and objected to their
admission when these were offered as evidence. Though these were
grudgingly admitted anyway, still admissibility of evidence should not
24
be equated with weight of evidence. -
A reading of respondent's Answer, however, shows that 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
back 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
25
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
26
the real intention of the parties as stated in the defenses '"
Respondent's denials do not constitute an effective specific denial as
27
contemplated by law. In the early case of Songco v. Sellner, the
Court expounded on how to deny the genuineness and due execution
of an actionable document, viz.:
'This means that 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 raise any issue as to its
genuineness or due execution. On the contrary such a plea is an
admission both of the genuineness and due execution thereof, since it
seeks to avoid the instrument upon a ground not affecting either.
In fact, respondent's allegations amount to an implied admission of the
due execution and genuineness of the promissory note. The admission
of the genuineness and due execution of a document means that the
party whose signature it bears admits that he voluntarily signed the
document or it was signed by another for him and with his authority;
that at the time it was signed it was in words and figures exactly as set
out in the pleading of the party relying upon it; that the document was
delivered; and that any formalities required by law, such as a seal, an
acknowledgment, or revenue stamp, which it lacks, are waived by
28
him. Also, it effectively eliminated any defense relating to the
authenticity and due execution of the document, e.g., that the
document was spurious, counterfeit, or of different import on its face as
the one executed by the parties; or that the signatures appearing
29
thereon were forgeries; or that the signatures were unauthorized.
Clearly, both the trial court and the Court of Appeals erred in
concluding that respondent specifically denied petitioner's allegations
regarding the loan documents, as respondent's Answer shows that he
failed to specifically deny under oath the genuineness and due
execution of the promissory note and its concomitant documents.
Therefore, respondent is deemed to have admitted the loan documents
and acknowledged his obligation with petitioner; and with respondent's
implied admission, it was not necessary for petitioner to present further
evidence to establish the due execution and authenticity of the loan
documents sued upon.
While Section 22, Rule 132 of the Rules of Court requires that private
documents be proved of their due execution and authenticity before
they can be received in evidence, i.e., presentation and examination of
witnesses to testify on this fact; in the present case, there is no need
for proof of execution and authenticity with respect to the loan
30
documents because of respondent's implied admission thereof.
Respondent claims that he did not receive the net proceeds in the
amount of P988,333.00 as stated in the Loan Release Sheet dated
31
September 23, 1983. The document, however, bears respondent's
32 33
signature as borrower. Res ipsa loquitur. The document speaks for
itself. Respondent has already impliedly admitted the genuineness and
due execution of the loan documents. No further proof is necessary to
show that he undertook the obligation with petitioner. "A person cannot
34
accept and reject the same instrument."
The Court also finds that petitioner's claim is not barred by prescription.
Petitioner's action for collection of a sum of money was based on a
written contract and prescribes after ten years from the time its right of
35
action arose. The prescriptive period is interrupted when there is a
36
written extrajudicial demand by the creditors. The interruption of the
prescriptive period by written extrajudicial demand means that the said
37
period would commence anew from the receipt of the demand.
38
Thus, in the case of The Overseas Bank of Manila v. Geraldez, the
Court categorically stated that the correct meaning of interruption as
distinguished from mere suspension or tolling of the prescriptive period
is that said period would commence anew from the receipt of the
demand. In said case, the respondents Valenton and Juan, on
February 16, 1966, obtained a credit accommodation from the
Overseas Bank of Manila in the amount of P150,000.00. Written
extrajudicial demands dated February 9, March 1 and 27, 1968,
November 13 and December 8, 1975 and February 7 and August 27,
1976 were made upon the respondents but they refused to pay. When
the bank filed a case for the recovery of said amount, the trial court
dismissed the same on the ground of prescription as the bank's cause
of action accrued on February 16, 1966 (the date of the manager's
check for P150,000.00 issued by the plaintiff bank to the Republic
Bank) and the complaint was filed only on October 22, 1976. Reversing
the ruling of the trial court, the Court ruled:
An action upon a written contract must be brought within ten years
from the time the right of action accrues (Art. 1144[1], Civil Code). "The
prescription of actions is interrupted when they are filed before the
court, when there is a written extrajudicial demand by the creditors,
and when there is any written acknowledgment of the debt by the
debtor" (Art. 1155, Ibid, applied in Gonzalo Puyat & Sons, Inc. v. City
of Manila, 117 Phil. 985, 993; Philippine National Bank v. Fernandez,
L-20086, July 10, 1967, 20 SCRA 645, 648; Harden v. Harden, L-
22174, July 21, 1967, 20 SCRA 706, 711).
A written extrajudicial demand wipes out the period that has already
elapsed and starts anew the prescriptive period. Giorgi says: "La
interrupcion difiere de la suspension porque borra el tiempo
transcurrido anteriormente y obliga a la prescripcion a comenzar de
nuevo" (9 Teoria de las Obligaciones, 2nd Ed., p. 222). "La
interrupcion . . . quita toda eficacia al tiempo pasado y abre camino a
un computo totalmente nuevo, que parte del ultimo momento del acto
interruptivo, precisamente, como si en aquel momento y no antes
hubiese nacido el credito" (8 Giorgi, ibid pp. 390-2).
That same view as to the meaning of interruption was adopted in
Florendo v. Organo, 90 Phil. 483, 488, where it ruled that the
interruption of the ten-year prescriptive period through a judicial
demand means that "the full period of prescription commenced to run
anew upon the cessation of the suspension". "When prescription is
interrupted by a judicial demand, the full time for the prescription must
be reckoned from the cessation of the interruption" (Spring v. Barr, 120
So. 256 cited in 54 C.J.S. 293, note 27). That rule was followed in
Nator and Talon v. CIR, 114 Phil. 661, Sagucio v. Bulos, 115 Phil. 786
and Fulton Insurance Co. v. Manila Railroad Company, L-24263,
November 18, 1967, 21 SCRA 974, 981.
WHEREFORE, the petition is GRANTED. The Decisions of the
Regional Trial Court of Manila (Branch 37) dated January 26, 1996,
and the Court of Appeals dated October 27, 1999 are SET ASIDE.
Respondent is ordered to pay One Million Pesos (P1,000,000.00) plus
25% interest and 24% penalty charge per annum beginning October
13, 1983 until fully paid, and 25% of the amount due as attorney's fees.
Costs against respondent.
SO ORDERED.

Interruption of the prescriptive period as meaning renewal of the

original term seems to be the basis of the ruling in Ramos v. Condez,
L-22072, August 30, 1967, 20 SCRA 1146, 1151. In that case the
cause of action accrued on June 25, 1952. There was a written
acknowledgment by the vendors on November 10, 1956 of the validity
of the deed of sale.

In National Marketing Corporation v. Marquez, L-25553, January 31,

1969, 26 SCRA 722, it appears that Gabino Marquez executed on
June 24, 1950 a promissory note wherein he bound himself to pay to
the Namarco P12,000 in installments within the one-year period
starting on June 24, 1951 and ending on June 25, 1952. After making
partial payments on July 7, 1951 and February 23, 1952, Marquez
defaulted.

His total obligation, including interest, as of October 31, 1964,

amounted to P19,990.91. Written demands for the payment of the
obligation were made upon Marquez and his surety on March 22,
1956, February 16, 1963, June 10, September 18 and October 13,
1964. Marquez did not make any further payment.

The Namarco sued Marquez and his surety on December 16, 1964.
They contended that the action had prescribed because the ten-year
period for suing on the note expired on June 25, 1962. That contention
was not sustained. It was held that the prescriptive period was
interrupted by the written demands, copies of which were furnished the
surety.

Respondent's obligation under the promissory note became due and

demandable on October 13, 1983. On July 27, 1988, petitioner's
counsel made a written demand for petitioner to settle his obligation.
From the time respondent's obligation became due and demandable
on October 13, 1983, up to the time the demand was made, only 4
years, 9 months and 14 days had elapsed. The prescriptive period then
commenced anew when respondent received the demand letter on
39
August 5, 1988. Thus, when petitioner sent another demand letter on
40
February 22, 1994, the action still had not yet prescribed as only 5
years, 6 months and 17 days had lapsed. While the records do not
show when respondent received the second demand letter,
nevertheless, it is still apparent that petitioner had the right to institute
the complaint on September 14, 1994, as it was filed before the lapse
of the ten-year prescriptive period.

Lastly, if a demurrer to evidence is granted but on appeal the order of

dismissal is reversed, the movant shall be deemed to have waived the
41
right to present evidence. The movant who presents a demurrer to
the plaintiff's evidence retains the right to present their own evidence, if
the trial court disagrees with them; if the trial court agrees with them,
but on appeal, the appellate court disagrees with both of them and
reverses the dismissal order, the defendants lose the right to present
their own evidence. The appellate court shall, in addition, resolve the
case and render judgment on the merits, inasmuch as a demurrer aims
42
to discourage prolonged litigations. Thus, respondent may no longer
offer proof to establish that he has no liability under the loan
documents sued upon by petitioner.

The promissory note signed and admitted by respondent provides for

the loan amount of P1,000,000.00, to mature on October 13, 1983,
with interest at the rate of 25% per annum. The note also provides for a
penalty charge of 24% per annum of the amount due and unpaid, and
25% attorney's fees. Hence, respondent should be held liable for these
sums.
F. Validity of Contracts – General Rule: A defective
notarization does not affect the validity of a contract

1. Articles 1305, 1306, and 1318, New Civil Code

Article 1305. A contract is a meeting of minds between two

persons whereby one binds himself, with respect to the
other, to give something or to render some service. (1254a)

Article 1306. The contracting parties may establish such

stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law,
morals, good customs, public order, or public policy.

Article 1318. There is no contract unless the following

requisites concur:

(1) Consent of the contracting parties;

(2) Object certain which is the subject matter of the contract;

(3) Cause of the obligation which is established. (1261)


G.R. No. 148280 July 10, 2007
LORETA AGUSTIN CHONG, also known as LORETA GARCIA
AGUSTIN, Petitioner,
vs.
THE HONORABLE COURT OF APPEALS, SPOUSES PEDRO and
ROSITA DE GUZMAN and FORTUNE DEVELOPMENT
CORPORATION, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari assails the September 14, 2000
1
Decision of the Court of Appeals in CA-G.R. CV No. 47487, which
2
affirmed the August 8, 1994 Decision of the Regional Trial Court of
Manila, Branch 7 in Civil Case No. 89-50138 dismissing petitioner’s
complaint, and ordering her to pay ₱50,000.00 as moral damages,
₱10,000.00 as attorney’s fees and costs of the suit, as well as the May
28, 2001 Resolution which denied petitioner’s motion for
reconsideration.
On August 25, 1989, petitioner Loreta Agustin Chong filed a
3 located in Singalong is owned by respondent-spouses; and that
Complaint for annulment of contracts and recovery of possession
against respondent-spouses Pedro and Rosita de Guzman, and
Fortune Development Corporation before the Regional Trial Court of
Manila.
Petitioner alleged that she is the common-law wife of Augusto Chong;
that on February 13, 1980, she bought a parcel of land (subject lot)
from respondent corporation as evidenced by Contract to Sell No. 195,
particularly described as follows:
"A parcel of land (Lot 1 Block 4, of the consolidation-subdivision plan
(LRC) Pcs-18730, being a portion of the consolidation of Lot 4522 and
4524, Parañaque Cadastre, Lots 1 & 2 (LRC) Psd-169203) L.R.C. Rec.
Nos. N-27442, N-27463, N-13960), situated in the Barrio of San
Dionisio, Province of Rizal, containing an area of TWO HUNDRED
SIXTY SIX (266) square meters, more or less."
She further alleged that by virtue of a special power of attorney she
executed in favor of Augusto, the latter sold the subject lot to
respondent-spouses under the Transfer of Rights and Assumption of
Obligation dated January 30, 1984 allegedly for ₱80,884.95 which
petitioner or Augusto never received, thus, said sale is null and void for
lack of consideration; and that despite repeated demands, respondent-
spouses refused to turn over the possession of the subject lot to
petitioner.
Petitioner likewise denied selling the house constructed on the subject
lot to respondent-spouses for ₱25,000.00, claiming that she could not
have executed the Deed of Sale because at the time it was allegedly
notarized on February 24, 1987, she was working in Hong Kong as a
domestic helper. Thus, said sale is void for being a forgery. Petitioner
alleged that despite repeated demands, respondent-spouses refused
to surrender the possession of the aforesaid house.
Petitioner also claimed that she is the owner of a house located at
1191 P. Zapanta, Singalong, Manila; that without her knowledge and
consent, respondent-spouses rented said house to other persons and
collected rent; and that despite repeated demands, respondent-
spouses refused to return the possession of the house as well as the
rentals collected therefrom.
Petitioner prayed that the Transfer of Rights and Assumption of
Obligation as well as the Deed of Sale be declared null and void; that
respondent-spouses be ordered to turn over the possession of the
houses and lots in Parañaque and Singalong to petitioner; and that
respondents indemnify her for actual, moral and exemplary damages
as well as attorney’s fees.
4
Respondent-spouses moved to dismiss the complaint for failure to
state a cause of action but it was denied by the trial court. On
5
December 11, 1989, respondent-spouses filed their Answer to the
Complaint while respondent corporation failed to file its answer within
the reglementary period hence, it was declared in default.
During the pre-trial, respondent-spouses orally moved for leave of
court to file an amended answer which was granted. On May 18, 1990,
respondent-spouses filed their Amended Answer with
6
Counterclaim. Petitioner filed a Motion to Strike Out Amended
7
Answer alleging that no prior written motion for leave to file amended
answer was filed in violation of Section 3, Rule 10 of the Rules of Court
and that the amended answer contained substantial amendments, but
8
same was denied by the trial court in an Order dated July 16, 1990.
In their amended answer, respondent-spouses asserted that the
Transfer of Rights and Assumption of Obligation was supported by
sufficient consideration; that they paid ₱125,000.00, and not
₱25,000.00 as alleged by petitioner, for the house on the subject lot;
that the Deed of Sale over the house constructed on the subject lot
was signed by petitioner on February 22, 1987 while she was still in the
country but it was notarized only on February 24, 1987 or after she had
left to work abroad; that petitioner failed to allege or submit any
actionable document to prove her claim of ownership; that the house
petitioner’s complaint is malicious and baseless which entitles them to
actual, moral, exemplary and nominal damages, as well as attorney’s
fees.
After trial on the merits, the trial court rendered a Decision finding thus:
The Court is convinced that the document entitled Transfer of Rights
and Assumption of Obligation is sufficiently supported by valuable
consideration. The evidence presented by the [respondent-spouses]
has shown that for the house and lot [respondent-spouses] paid almost
₱480,000.00 and this definitely is more than sufficient compensation
for the house and lot in question. The Court believes, considering the
evidence on record, that [petitioner] on February 22, 1987 received the
amount of ₱25,000.00 from Pedro de Guzman before she left for
Hongkong. Unfortunately, the document was not notarized on that day
but two days thereafter. The Court also believes that it was the
[respondent- spouses] who paid the sum of ₱105,000.00, the
obligation of Augusto Chong and [petitioner] to Rosario Cabelin and as
a consequence, all the documents pertaining thereto were given to the
[respondent-spouses] by Rosario Cabelin. The Court also notes that
[petitioner] and Augusto Chong could not even agree as to who was
indebted to Rosario Cabelin. [Petitioner] tried to deny that she was
indebted to Rosario Cabelin while Augusto Chong claimed that it was
[petitioner] who was indebted to Rosario.
The Court, therefore, considering those inconsistencies of the
[petitioner] and her paramour refuses to believe their testimonies.
On the other hand, the Court finds the testimony of [respondent Pedro
de Guzman] and his witnesses to be believable and consistent with the
evidence received by it.
It is clear from the aforementioned discussion that [petitioner] has
failed to prove by a preponderance of evidence her causes of action
against [respondents]. On the other hand, [respondents] have shown
the baselessness of the complaint filed by [petitioner].
WHEREFORE, premises considered, judgment is rendered for
[respondents] by dismissing the complaint and sentencing [petitioner]
to pay the [respondents] ₱50,000.00 as moral damages plus
9
₱10,000.00 as attorney’s fees, plus costs of suit.
Petitioner appealed to the Court of Appeals which rendered the
assailed Decision affirming in toto the decision of the trial court.
Hence, the instant petition.
Petitioner raises four issues, to wit: (1) whether the trial court erred in
admitting respondent-spouses’ amended answer in violation of Section
3, Rule 10 of the Rules of Court, (2) whether petitioner was deprived of
due process when during the pre-trial, respondent-spouses failed and
refused to furnish her copies of the documents that they intended to
present, in violation of Section 6, Rule 18 of the Rules of Court, (3)
whether the trial court erred in not finding that the Transfer of Rights
and Assumption of Obligation dated January 30, 1984 was void or, in
the alternative, unenforceable as against petitioner.
Petitioner claims that the trial court erred in granting respondent-
spouses’ oral manifestation or motion for leave to file an amended
answer. She argues that respondent-spouses should have filed a
written motion for leave to file an amended answer, pursuant to Section
10
3, Rule 10 of the Rules of Court. She argues that the purpose of the
rule is to help the trial court determine whether the proposed
amendments constitute substantial amendments to their original
answer and whether the motion is intended to delay the proceedings,
as well as to give the adverse party an opportunity to be heard.
The contention lacks merit.
The trial court allowed respondent-spouses to amend their answer
after it observed that their original answer merely contained specific
denials without clearly setting forth, as far as practicable, the truth of
the matter upon which they rely to support such denial as required
11
under Section 10, Rule 8 of the Rules of Court. Further, after denying
the material allegations in the Complaint, respondent-spouses merely
stated in their original answer that "[a]ll other arguments embodied in
[their prior] motion to dismiss are reiterated as part of the special and
12
affirmative defenses herein." Under these conditions, the trial court
justifiably deemed it necessary for respondent-spouses to amend their
answer in order to sufficiently clarify the issues to be tried and thereby
expedite the proceedings. In granting respondent-spouses’ motion to
file an amended answer, the trial court acted within its discretion
pursuant to Section 2, Rule 18 of the Rules of Court:
SEC. 2. Nature and purpose. – The pre-trial is mandatory. The court
shall consider:
xxxx
(c) The necessity or desirability of amendments to the pleadings;
Trial court allowed the filing of an amended answer to avoid multiplicity
of suits, to determine the real controversies between the parties and to
decide the case on the merits without unnecessary delay, all of which
form the bases for the liberality of the rule in allowing amendments to
13
pleadings. This was in consonance with the basic tenet that the Rules
of Court shall be liberally construed to promote the just, speedy and
14
inexpensive disposition of every action.
Petitioner next asserts that during the pre-trial, respondent-spouses did
not furnish her with copies of the documents that they intended to
15
present, in violation of Section 6, Rule 18 of the Rules of Court.
Petitioner claims that she was denied due process and that the trial
court gave respondent- spouses undue advantage during the trial of
this case.
Petitioner’s contention lacks merit.
16
The records show that respondent-spouses’ Pre-Trial Brief dated
April 10, 1990 enumerated the documents to be presented during the
trial as well as the purposes of their presentation. Although copies of
the documents enumerated therein were not attached to the Pre-Trial
Brief, they were nonetheless previously attached to respondent-
17 18
spouses’ Motion To Dismiss dated September 8, 1989, Reply to
petitioner’s opposition to the motion to dismiss dated September 25,
19
1989, and Amended Answer With Counterclaim dated May 11, 1990,
all of which were copy furnished to petitioner. During trial, petitioner
was afforded every opportunity to examine respondent-spouses’
documentary evidence, and to controvert the same. Petitioner even
cross-examined respondent-spouses on these documents at length
and challenged their validity during the presentation of both her
evidence-in-chief and rebuttal evidence. Consequently, petitioner can
not now claim that she was denied due process and that she was
unable to adequately prosecute her case.
Petitioner’s main contention rests on the alleged nullity or, in the
alternative, unenforceability of the Transfer of Rights and Assumption
of Obligation dated January 30, 1984.
We agree with the findings of the lower courts that the parties
voluntarily executed the Transfer of Rights and Assumption of
Obligation dated January 30, 1984 and that the same was supported
by valuable consideration. The evidence on record sufficiently
established that on February 13, 1980, petitioner bought the subject lot
from respondent corporation under Contract to Sell No. 195 and
thereafter, began paying the stipulated monthly installments thereon.
20
On April 18, 1983, she executed a Special Power of Attorney in favor
of Augusto Chong, granting the latter the power to "mortgage,
encumber, sell and dispose the property (subject lot) under such terms
and conditions which my said attorney (Augusto) may deem
acceptable x x x" and "pay any/all my valid obligations to the proper
21
person/s x x x." On July 1, 1983, one Rosario Cabelin filed a
complaint for sum of money against petitioner and Augusto with the
Regional Trial Court of Pasay City which was docketed as Civil Case
No. 1102-P. Under threat of preliminary attachment, petitioner, who
was then working as a domestic helper in Hong Kong, sought the
assistance of respondent-spouses to settle the case. Subsequently,
Rosario, Augusto and petitioner, with Augusto acting as petitioner’s
22
attorney-in-fact, entered into a Compromise Agreement dated July
25, 1983 wherein petitioner and Augusto agreed to pay the amount of
₱55,000.00 to Rosario. To guarantee the payment of the remaining
balance of the debt in the amount of ₱105,000.00, Augusto, again
acting as petitioner’s attorney-in-fact, executed a Deed of Sale with
23
Right to Repurchase dated July 25, 1983 over the subject lot in favor
of Rosario in consideration of the aforesaid sum. In addition, Augusto,
respondent-spouses, Gualberto and Fe Arceta jointly and severally
promised to pay the aforesaid sum on or before July 24, 1984 under a
24
Promissory Note dated July 24, 1983.
Sometime in December 1983, Rosario demanded payment of the
remaining balance of the debt. Respondent-spouses agreed to pay
Rosario the amount of ₱105,000.00 provided petitioner will transfer her
rights over the subject lot to them. Thus, after respondent-spouses had
paid Rosario, Augusto, acting under the aforementioned Special Power
of Attorney, executed a Transfer of Rights and Assumption of
25
Obligation dated January 30, 1984 in favor of respondent-spouses
and with the conformity of respondent corporation. Correspondingly,
26
Rosario executed a Quitclaim in favor of Augusto releasing him from
the aforementioned Deed of Sale with Right to Repurchase and
Promissory Note. Thereafter, respondent-spouses paid the remaining
monthly installments and transferred the title over the subject lot in
their names as evidenced by Transfer Certificate of Title No.
27
1292 issued on January 21, 1988.
Petitioner asserts, however, that the Transfer of Rights and
Assumption of Obligation is null and void because it lacked valuable
consideration. She claims that she executed the Special Power of
Attorney in favor of Augusto with the understanding that the
subsequent transfer of the subject lot to respondent-spouses would be
28
merely simulated ("kunwarian"). She claims that respondent-spouses
and her nieces enticed her into executing the Special Power of
Attorney because Augusto might sell the subject lot while petitioner is
abroad and use the proceeds thereof to support his children with his
29
legal wife. Thus, petitioner agreed to execute the Special Power of
Attorney in favor of Augusto for the sole purpose of transferring the
subject lot in the name of respondent-spouses through a simulated
sale.
We are not persuaded.
If petitioner believes that Augusto would appropriate the property
during her absence, then she should not have executed the Special
Power of Attorney in his favor authorizing him to dispose of the subject
lot. If it was truly her intention to prevent Augusto from disposing the
subject lot, then she could have simply retained the rights over the
subject lot in her name or directly transferred the same to the name of
respondent- spouses before she left for Hong Kong. Notably, when
petitioner was presented as a witness during the presentation of her
rebuttal evidence, she claimed that she executed the Special Power of
Attorney to help her nieces, Gualberto and Fe Arceta, secure a loan for
30
the purported repair of the latter’s duplex house. Augusto was
allegedly appointed as petitioner’s attorney-in-fact so that the former
31
could act as a co-maker of the loan. Unfortunately for petitioner,
these inconsistencies cast doubt on her credibility.
Petitioner’s claim that Augusto was not empowered to dispose of the
subject lot in order to pay off an alleged debt she owed to Rosario, is
not worthy of belief. The clear and unmistakable tenor of the Special
Power of Attorney reveals that petitioner specifically authorized
Augusto to sell the subject lot and to settle her obligations to third
persons. The Special Power of Attorney is a duly notarized document
and, as such, is entitled, by law, to full faith and credit upon its
32
face. Notarization vests upon the document the presumption of
regularity unless it is impugned by strong, complete and conclusive
33
proof. Rather than challenging its validity, petitioner admitted in open
court that she signed the Special Power of Attorney with a full
34 35
appreciation of its contents and without reservation.
Petitioner likewise admitted that Rosario was her creditor when she
was first presented as a witness during the reception of
36
evidence. Even petitioner’s own witness, Augusto, testified that
petitioner was indebted to Rosario due to a failed business venture
37 38
involving a store in Baclaran, Manila. In her Letter dated February 6,
1984 to respondent- spouses, petitioner, likewise, admitted that she
was indebted to Rosario and sought the assistance of respondent-
spouses to help pay off her debts.
In fine, the evidence on record sufficiently established that petitioner’s
rights over the subject lot were validly transferred to respondent-
spouses in consideration of the latter’s payment of petitioner’s debts to
Rosario. When Augusto executed the Transfer of Rights and
Assumption of Obligations on behalf of petitioner, he was acting within
his powers under the Special Power of Attorney for valuable
consideration. In a contract of agency, the agent acts in representation
39
or in behalf of another with the consent of the latter, and the principal
is bound by the acts of his agent for as long as the latter acts within the
40
scope of his authority. Hence, the Transfer of Rights and Assumption
of Obligations is valid and binding between the parties.
Lastly, petitioner impugns the jurisdiction of the Pasay City RTC in Civil
Case No. 1102-P on the ground that it never acquired jurisdiction over
her person because summons were allegedly not properly served on
her, and that she never authorized Augusto to enter into the
compromise agreement in said case on her behalf. According to
petitioner, she was in Hong Kong when the collection suit was filed by
Rosario against her and Augusto. In short, she assails the validity of
the judgment based on compromise agreement since the proceedings
in Civil Case No. 1102-P were presumably terminated after the parties
entered into a Compromise Agreement dated July 25, 1983. She posits
that all the documents signed by Augusto on her behalf, specifically,
the Compromise Agreement dated July 25, 1983, Deed of Sale with
Right to Repurchase dated July 25, 1983, and Transfer of Rights and
Assumption of Obligation dated January 30, 1984, are unenforceable
as against her.
Petitioner’s contention must likewise fail.
A judgment based on a compromise agreement is a judgment on the
merits wherein the parties have validly entered into stipulations and the
evidence was duly considered by the trial court that approved the
41
agreement. It is immediately executory and not appealable unless set
42 43
aside on grounds of nullity under Article 2038 of the Civil Code, and
44
has the effect of a judgment of the court. Further, well-entrenched is
the rule that a party may attack the validity of a final and executory
judgment through three ways:
The first is by petition for relief from judgment under Rule 38 of the
Revised Rules of Court, when judgment has been taken against the
party through fraud, accident, mistake or excusable negligence, in
which case the petition must be filed within sixty (60) days after the
petitioner learns of the judgment, but not more than six (6) months after
such judgment was entered. The second is by direct action to annul
and enjoin the enforcement of the judgment. This remedy presupposes
that the challenged judgment is not void upon its face, but is entirely
regular in form, and the alleged defect is one which is not apparent
upon its face or from the recitals contained in the judgment. x x x
‘under accepted principles of law and practice, long recognized in
American courts, the proper remedy in such case, after the time for
appeal or review has passed, is for the aggrieved party to bring an
action enjoining the judgment, if not already carried into effect; or if the
property has already been disposed of, he may institute suit to recover
it.’ The third is either a direct action, as certiorari, or by a collateral
attack against the challenged judgment (which is) void upon its face, or
that the nullity of the judgment is apparent by virtue of its own recitals.
As aptly explained by Justice Malcolm in his dissent in Banco Español-
Filipino v. Palanca, supra, ‘A judgment which is void upon its face, and
which requires only an inspection of the judgment roll to demonstrate
its want of vitality is a dead limb upon the judicial tree, which should be
lopped off, if the power so to do exists.’
In the case at bar, the want of jurisdiction of the Pasay RTC in Civil
Case No. 1102-P due to the alleged non-service of summons has not
been established by petitioner. The judgment based on compromise
agreement made therein was likewise not established as being void
upon its face. Except for the self-serving allegation that she was in
Hong Kong when the collection suit was filed, petitioner did not present
competent proof to prove that she was not properly served with
summons. Even if it were true that she was abroad when the collection
suit was filed against her, summons could still be served through
45 46
extraterritorial service under Section 16 in relation to Section 15, of
Rule 14 of the Rules of Court. Undeniably, the Pasay City RTC in Civil
Case No. 1102-P enjoys the presumption of regularity in the conduct of
its official duties which was not fully rebutted by petitioner.
Petitioner bewails that the records of Civil Case No. 1102-P was
destroyed due to a fire that gutted the Pasay City Hall Building on
47
January 18, 1992 as evidenced by a Certification dated November 6,
2001 issued by the Office of the Clerk of Court, RTC, Pasay City.
However, petitioner was not without recourse considering that she
could have filed a petition for the reconstitution of the records of said
case, and thereafter, sought the annulment of the judgment therein, if
warranted. The procedure for the reconstitution of records could have
48
been done either under Act No. 3110, which is the general law that
49
governs the reconstitution of judicial records, or under Section 5(h) of
Rule 135 of the Rules of Court which recognizes the inherent power of
the courts to reconstitute at any time the records of their finished
50
cases. Since petitioner failed to avail of the proper remedies before
the proper forum, we cannot rule on, much less disturb, the validity of
the proceedings before the Pasay City RTC in Civil Case No. 1102-P.
At any rate, whether or not petitioner was properly served with
summons in Civil Case No. 1102-P, and that Augusto was not
authorized to enter into the Compromise Agreement dated July 25,
1983 on her behalf, will not affect the outcome of this case. There is
sufficient evidence on record to establish that petitioner impliedly
ratified the compromise agreement as well as the other documents
executed pursuant thereto. Implied ratification may take various forms
such as by silence or acquiescence; by acts showing approval or
adoption of the contract; or by acceptance and retention of benefits
51
flowing therefrom.
In the instant case, petitioner claimed that she learned of the transfer of
the subject lot to respondent-spouses as part of the settlement in the
52
collection suit in May 1985; however, she did not take steps to
immediately assail the alleged unauthorized transfer of the same. She
failed to adequately explain why she waited four years later or until
1989 to file the subject complaint to annul the aforesaid documents.
More importantly, instead of asserting her rights over the subject lot
after discovering the alleged fraudulent and unauthorized transfer of
the same to respondent-spouses in May 1985, petitioner subsequently
sold the house constructed on the subject lot also to respondent-
spouses on February 22, 1987 for the sum of ₱25,000.00. This act
runs counter to the reaction of one who discovers that his or her
property has been fraudulently conveyed in favor of another.
Indubitably, this act only fortifies the previous finding that petitioner has
authorized and consented to, or, at the very least, ratified the sale of
the subject lot to respondent-spouses to pay off her debts to Rosario.
53
Petitioner alleges that the Deed of Sale dated February 24, 1987 is a
forgery. She denies having signed the aforesaid deed and claims that
on February 24, 1987, the date when the deed was allegedly notarized,
she was in Hong Kong working as a domestic helper.
Branch 7, in Civil Case No. 89-50138, dismissing the complaint, and
ordering petitioner to pay ₱50,000.00 as moral damages, ₱10,000.00
as attorney’s fees and costs of the suit, and its May 28, 2001
Resolution denying petitioner’s motion for reconsideration, are
AFFIRMED.
Costs against petitioner.

The trial court and the Court of Appeals found otherwise. They gave SO ORDERED.
credence to the claim of respondent Pedro de Guzman that petitioner
signed the Deed of Sale and received the ₱25,000.00 consideration
therefor on February 22, 1987 or two days before she left for Hong
Kong. However, the deed was notarized only on February 24, 1987 as
admitted by respondent Pedro de Guzman. The Court of Appeals
noted that even a cursory examination of the signature appearing on
the Deed of Sale would show that it was written by one and the same
hand that signed the Contract to Sell which petitioner admits contained
54
her signature. In addition, Augusto admitted that he signed the deed
as evidenced by the signature in the portion of the deed where he gave
55
his marital consent to the sale. Further, as per the request of
56
petitioner in a Letter dated February 22, 1987, respondent- spouses
gave petitioner’s son and sister the sum of ₱122,000.00 as additional
consideration for the house built on the subject lot. Thereafter,
57
petitioner’s son and sister signed an Annotation dated March 20,
1987 in said Letter acknowledging receipt of the aforesaid
sum.1avvphi1

It was established that petitioner received valuable consideration for

the sale of the house on the subject lot. Concededly, the notarization of
the deed was defective as respondent Pedro de Guzman himself
admitted that the deed was notarized only two days after petitioner had
signed the deed and at which time she was already in Hong Kong. In
short, petitioner did not appear before the notary public in violation of
58
the Notarial Law which requires that the party acknowledging must
appear before the notary public or any other person authorized to take
59
acknowledgments of instruments or documents. Nevertheless, the
defective notarization of the deed does not affect the validity of the sale
60
of the house. Although Article 1358 of the Civil Code states that the
sale of real property must appear in a public instrument, the formalities
required by this article is not essential for the validity of the contract but
is simply for its greater efficacy or convenience, or to bind third
61
persons, and is merely a coercive means granted to the contracting
parties to enable them to reciprocally compel the observance of the
62
prescribed form. Consequently, the private conveyance of the house
63
is valid between the parties.

Based on the foregoing, we are satisfied that the sale of the subject lot
and the house built thereon was made for valuable consideration and
with the consent of petitioner. Consequently, we affirm the findings of
the lower courts which upheld the validity of the transfer of petitioner’s
rights over the subject lot as well as the sale of the house built thereon
in favor of respondent-spouses.

Anent petitioner’s claim that she is the owner of another house located
at 1191 P. Zapanta, Singalong, Manila, the same must similarly fail.
Aside from the self-serving statement that she owns the house,
petitioner merely presented a Metropolitan Waterworks and Sewerage
64
System Official Water Receipt dated December 7, 1979, a water
65
installation Receipt dated August 22, 1979, and a Manila Electric
66
Company (Meralco) Warrant to purchase a stock of Meralco
Securities Corporation dated December 24, 1975, all in her name, to
establish her claim. Suffice it to state, petitioner’s evidence does not
meet the quantum of proof necessary to establish that she is the
rightful owner of the aforesaid house. At best, they prove that she
resided in the aforesaid house sometime in the 1970s or long before
she filed the subject complaint on August 25, 1989. Basic is the rule
that in civil cases, the burden of proof is on the plaintiff to establish her
case by a preponderance of evidence. If she claims a right granted or
created by law, she must prove her claim by competent evidence. She
must rely on the strength of her own evidence and not on the
67
weakness of that of her opponent. This, petitioner failed to do.

WHEREFORE, the petition is DENIED. The September 14, 2000

Decision of the Court of Appeals in CA-G.R. CV No. 47487 which
affirmed the August 8, 1994 Decision of the Regional Court of Manila,
 2. Competent evidence of the affiant’s identity –

The President of the Church of Jesus Christ of Latter

Day Saints v. BTL Construction Corporation, G.R. No.
176439, February 26, 2007

*Wala yung 2007 case, meron lang sa Google yung

January 15, 2014 case.

Exceptions: Where the law requires notarization as a requisite for

validity

3. Donation of immovable property

Article 749 of the Civil Code

Article 749. In order that the donation of an immovable may

be valid, it must be made in a public document, specifying
therein the property donated and the value of the charges
which the donee must satisfy.

The acceptance may be made in the same deed of donation

or in a separate public document, but it shall not take effect
unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the

donor shall be notified thereof in an authentic form, and this
step shall be noted in both instruments.
G.R. No. 132681 December 3, 2001
RICKY Q. QUILALA, petitioner,
vs.
GLICERIA ALCANTARA, LEONORA ALCANTARA, INES REYES
and JOSE REYES, respondent.
YNARES-SANTIAGO, J.:
On February 20, 1981, Catalina Quilala executed a "Donation of Real
Property Inter Vivos" in favor of Violeta Quilala over a parcel of land
located in Sta. Cruz, Manila, containing an area of 94 square meters,
and registered in her name under Transfer Certificate of Title No.
17214 of the Register of Deeds for Manila.
The "Donation of Real Property Inter Vivos" consists of two pages. The
first page contains the deed of donation itself, and is signed on the
bottom portion by Catalina Quilala as donor, Violeta Quilala as donee,
1
and two instrumental witnesses. The second page contains the
Acknowledgment, which states merely that Catalina Quilala personally
appeared before the notary public and acknowledged that the donation
was her free and voluntary act and deed. There appear on the left-
hand margin of the second page the signatures of Catalina Quilala and
one of the witnesses, and on the right-hand margin the signatures of
2
Violeta Quilala and the other witness. The Acknowledgment reads:
REPUBLIC OF THE PHILIPPINES )
QUEZON CITY ) S.S.
Before Me, a Notary Public, for and in the City of Quezon,
Philippines, this 20th day of Feb. 1981, personally appeared
CATALINA QUILALA, with Residence Certificate No.
19055265 issued at Quezon City on February 4, 1981,
known to me and to me known to be the same person who
executed the foregoing instruments and acknowledged to me
that the same is her own free and voluntary act and deed.
I hereby certify that this instrument consisting of two (2)
pages, including the page on which this acknowledgment is
written, has been signed by CATALINA QUILALA and her
instrumental witnesses at the end thereof and on the left-
hand margin of page 2 and both pages have been sealed
with my notarial seal.
In witness whereof, I have hereunto set my hand, in the City
of Quezon, Philippines, this 20th day of Feb., 1981.
(SGD.) NOTARY PUBLIC
Until December 31, 1981
(illegible)
DOC NO. 22;
PAGE NO. 6;
BOOK NO. XV;
SERIES OF 1981.
The deed of donation was registered with the Register of Deeds and, in
due course, TCT No. 17214 was cancelled and TCT No. 143015 was
issued in the name of Violeta Quilala.
On November 7, 1983, Catalina Quilala died. Violeta Quilala likewise
died on May 22, 1984. Petitioner Ricky Quilala alleges that he is the
surviving son of Violeta Quilala.
Meanwhile, respondents Gliceria Alcantara, Leonora Alcantara, Ines
Reyes and Juan Reyes, claiming to be Catalina's only surviving
relatives within the fourth civil degree of consanguinity, executed a
deed of extrajudicial settlement of estate, dividing and adjudicating
unto themselves the above-described property.
On September 13, 1984, respondents instituted against petitioner and
Guillermo T. San Pedro, the Registrar of Deeds of Manila, an action for
the declaration of nullity of the donation inter vivos, and for the
cancellation of TCT No. 143015 in the name of Violeta Quilala. The
case was docketed as Civil Case No. 84-26603 of the Regional Trial
Court of Manila, Branch 17. Subsequently, respondents withdrew their
complaint as against Guillermo T. San Pedro and he was dropped as a
party-defendant.
The trial court found that the deed of donation, although signed by both
Catalina and Violeta, was acknowledged before a notary public only by
the donor, Catalina. Consequently, there was no acceptance by Violeta
of the donation in a public instrument, thus rendering the donation null
and void. Furthermore, the trial court held that nowhere in Catalina's
SSS records does it appear that Violeta was Catalina's daughter.
Rather, Violeta was referred to therein as an adopted child, but there
was no positive evidence that the adoption was legal. On the other
hand, the trial court found that respondents were first cousins of
Catalina Quilala. However, since it appeared that Catalina died leaving
a will, the trial court ruled that respondents' deed of extrajudicial
settlement can not be registered. The trial court rendered judgment as
follows:
WHEREFORE, judgment is hereby rendered in favor of
plaintiffs Gliceria Alcantara, Leonarda Alcantara, Ines Reyes
and Juan Reyes and against defendant Ricky A. Quilala, as
follows:
1. Declaring null and void the deed of donation of real
property inter vivos executed on February 20, 1981 by
Catalina Quilala in favor of Violeta Quilala (Exhs. A as well
as 11 and 11-A.);
2. Ordering the Register of Deeds of Manila to cancel
Transfer Certificate of Title No. 143015 in the name of
Violeta Quilala and to issue a transfer certificate of title in the
name of the Estate of Catalina Quilala;.
3. Dismissing the complaint insofar as it seeks the
registration of the deed of extrajudicial settlement (Exhs. B
and B-1,) and the issuance by the Register of Deeds of
Manila of a transfer certificate of title in the names of the
plaintiffs; and
4. Dismissing the counterclaim of defendant Ricky A. Quilala.
No costs.
3
SO ORDERED.
Petitioner appealed the aforesaid decision. On July 30, 1997, the Court
of Appeals rendered a decision affirming with modification the decision
of the trial court by dismissing the complaint for lack of cause of action
without prejudice to the filing of probate proceedings of Catalina's
4
alleged last will and testament.
WHEREFORE, the appealed decision is hereby AFFIRMED
with the following MODIFICATION:
(3) DISMISSING the complaint for lack of cause of action
without prejudice to the filing of the necessary probate
proceedings by the interested parties so as not to render
nugatory the right of the lawful heirs.
Petitioner filed a motion for reconsideration, which the Court of Appeals
5
denied on February 11, 1998. Hence, this petition for review, raising
the following assignment of errors:
A. THE COURT OF APPEALS ERRED IN RULING THAT
THE DEED OF DONATION OF REAL PROPERTY INTER-
VIVOS IS NOT REGISTRABLE.
instrument shall be signed on the left margin thereof by the
person or persons executing the instrument and their
witnesses, and all the pages sealed with the notarial seal,
and this fact as well as the number of pages shall be stated
in the acknowledgment. Where the instrument acknowledged
relates to a sale, transfer, mortgage or encumbrance of two
or more parcels of land, the number thereof shall likewise be
set forth in said acknowledgment." (italics supplied).

B. THE COURT OF APPEALS ERRED ON UPHOLDING

As stated above, the second page of the deed of donation, on which
THE LOWER COURT'S RULING THAT VIOLETA QUILALA
6 the Acknowledgment appears, was signed by the donor and one
IS NOT THE DAUGHTER OF CATALINA QUILALA.
witness on the left-hand margin, and by the donee and the other
witness on the right hand margin. Surely, the requirement that the
The principal issue raised is the validity of the donation executed by contracting parties and their witnesses should sign on the left-hand
Catalina in favor of Violeta. Under Article 749 of the Civil Code, the margin of the instrument is not absolute. The intendment of the law
donation of an immovable must be made in a public instrument in order merely is to ensure that each and every page of the instrument is
7
to be valid, specifying therein the property donated and the value of authenticated by the parties. The requirement is designed to avoid the
the charges which the donee must satisfy. As a mode of acquiring falsification of the contract after the same has already been duly
ownership, donation results in an effective transfer of title over the executed by the parties. Hence, a contracting party affixes his
8
property from the donor to the donee, and is perfected from the signature on each page of the instrument to certify that he is agreeing
9
moment the donor knows of the acceptance by the donee, provided to everything that is written thereon at the time of signing.
the donee is not disqualified or prohibited by law from accepting the
donation. Once the donation is accepted, it is generally considered
10 Simply put, the specification of the location of the signature is merely
irrevocable, and the donee becomes the absolute owner of the
11 directory. The fact that one of the parties signs on the wrong side of the
property. The acceptance, to be valid, must be made during the
12 page does not invalidate the document. The purpose of authenticating
lifetime of both the donor and the donee. It may be made in the same
13 the page is served, and the requirement in the above-quoted provision
deed or in a separate public document, and the donor must know the
14 is deemed substantially complied with.
acceptance by the donee.

In the same vein, the lack of an acknowledgment by the donee before

In the case at bar, the deed of donation contained the number of the
the notary public does not also render the donation null and void. The
certificate of title as well as the technical description of the real
instrument should be treated in its entirety. It cannot be considered a
property donated. It stipulated that the donation was made for and in
private document in part and a public document in another part. The
consideration of the "love and affection which the DONEE inspires in
15 fact that it was acknowledged before a notary public converts the deed
the DONOR, and as an act of liberality and generosity." This was
of donation in its entirety a public instrument. The fact that the donee
sufficient cause for a donation. Indeed, donation is legally defined as
was not mentioned by the notary public in the acknowledgment is of no
"an act of liberality whereby a person disposes gratuitously of a thing
16 moment. To be sure, it is the conveyance that should be acknowledged
or right in favor of another, who accepts it."
as a free and voluntary act. In any event, the donee signed on the
second page, which contains the Acknowledgment only. Her
The donee's acceptance of the donation was explicitly manifested in acceptance, which is explicitly set forth on the first page of the
the penultimate paragraph of the deed, which reads: notarized deed of donation, was made in a public instrument.

That the DONEE hereby receives and accepts the gift and
donation made in her favor by the DONOR and she hereby
expresses her appreciation and gratefulness for the kindness
17
and generosity of the DONOR.
Below the terms and stipulations of the donation, the donor, donee and
their witnesses affixed their signature. However, the Acknowledgment
appearing on the second page mentioned only the donor, Catalina
Quilala. Thus, the trial court ruled that for Violeta's failure to
acknowledge her acceptance before the notary public, the same was
set forth merely on a private instrument, i.e., the first page of the
instrument. We disagree.
It should be stressed that this Court, not being a trier of facts, can not
make a determination of whether Violeta was the daughter of Catalina,
or whether petitioner is the son of Violeta. These issues should be
ventilated in the appropriate probate or settlement proceedings
affecting the respective estates of Catalina and Violeta. Suffice it to
state that the donation, which we declare herein to be valid, will still be
18
subjected to a test on its inofficiousness under Article 771, in relation
to Articles 752, 911 and 912 of the Civil Code. Moreover, property
donated inter vivos is subject to collation after the donor's
19
death, whether the donation was made to a compulsory heir or a
20
stranger, unless there is an express prohibition if that had been the
donor's intention.
21

WHEREFORE, in view of the foregoing, the petition is GRANTED. The

The pertinent provision is Section 112, paragraph 2 of Presidential appealed decision of the Court of Appeals , is REVERSED and SET
Decree No. 1529, which states:
ASIDE, and a new judgment is rendered dismissing Civil Case No. 84-
26603.
Deeds, conveyances, encumbrances, discharges, powers of
attorney and other voluntary instruments, whether affecting SO ORDERED.
registered or unregistered land, executed in accordance with
law in the form of public instruments shall be registrable:
Provided, that, every such instrument shall be signed by
person or persons executing the same in the presence of at
least two witnesses who shall likewise sign thereon, and
shall be acknowledged to be the free act and deed of the
person or persons executing the same before a notary public
or other public officer authorized by law to take
acknowledgment. Where the instrument so
acknowledged consists of two or more pages including the
page whereon acknowledgment is written, each page of the
copy which is to be registered in the office of the Register of
Deeds, or if registration is not contemplated, each page of
the copy to be kept by the notary public, except the page
where the signatures already appear at the foot of the
G.R. No. 160488 September 3, 2004 a) An implied trust was created with plaintiff as
trustor and private defendant Lucila A. Ponce
1 married to private defendant Engr. Romeo D.
FELOMINA ABELLANA, petitioner,
Ponce as trustee pursuant to Article 1448 of the
vs.
New Civil Code;
SPOUSES ROMEO PONCE and LUCILA PONCE and the
REGISTER OF DEEDS of BUTUAN CITY, respondents.
b) The implied trust, having been created without
the consent of the trustee and without any
DECISION
condition, is revoked;

YNARES-SANTIAGO, J.:
c) The private defendants, who are spouses,
execute the necessary deed of conveyance in
This is a petition for review on certiorari assailing the June 16, 2003 favor of the plaintiff of the land, covered by and
2
decision of the Court of Appeals in CA-G.R. CV No. 69213, which embraced in TCT NO. T-2874, in controversy and
3
reversed and set aside the August 28, 2000 decision of the Regional in the event private defendants refuse to execute
Trial Court of Butuan City, Branch 2, in Civil Case No. 4270. the deed of conveyance, the public defendant City
Register of Deeds of Butuan to cancel TCT No. T-
2874 and issue a new one in lieu thereof in the
The facts as testified to by petitioner Felomina Abellana are as follows:
name of the plaintiff;

On July 15, 1981, Felomina, a spinster, pharmacist and aunt of private

d) The private defendants spouses to pay jointly
respondent Lucila Ponce, purchased from the late Estela Caldoza-
4 5 and severally plaintiff the sum of PhP25,000.00 as
Pacres a 44,297 square meter agricultural lot with the intention of attorney’s fees and PhP4,000.00 as expenses of
6
giving said lot to her niece, Lucila. Thus, in the deed of sale, the latter
litigation;
was designated as the buyer of Lot 3, Pcs-10-000198, covered by
Original Certificate of Title No. P-27, Homestead Patent No. V-1551
7
and located at Los Angeles, Butuan City. The total consideration of e) The dismissal of the counterclaim of private
the sale was P16,500.00, but only P4,500.00 was stated in the deed defendants spouses[;] and
8
upon the request of the seller.
f) The private defendants to pay the costs.
Subsequently, Felomina applied for the issuance of title in the name of
her niece. On April 28, 1992, Transfer Certificate of Title (TCT) No. 18
9 10 SO ORDERED.
2874 over the subject lot was issued in the name of Lucila. Said title,
however, remained in the possession of Felomina who developed the
11 12
lot through Juanario Torreon and paid real property taxes thereon. Private respondent spouses appealed to the Court of Appeals which
set aside the decision of the trial court ruling that Felomina failed to
prove the existence of an implied trust and upheld respondent
The relationship between Felomina and respondent spouses Romeo
spouses’ ownership over the litigated lot. The appellate court further
and Lucila Ponce, however, turned sour. The latter allegedly became
held that even assuming that Felomina paid the purchase price of the
disrespectful and ungrateful to the point of hurling her insults and even
lot, the situation falls within the exception stated in Article 1448 of the
attempting to hurt her physically. Hence, Felomina filed the instant
Civil Code which raises a disputable presumption that the property was
case for revocation of implied trust to recover legal title over the
13 purchased by Felomina as a gift to Lucila whom she considered as her
property.
own daughter. The decretal portion thereof, states –

Private respondent spouses Lucila, also a pharmacist, and Romeo, a

marine engineer, on the other hand, claimed that the purchase price of
the lot was only P4,500.00 and that it was them who paid the same.
The payment and signing of the deed of sale allegedly took place in the
office of Atty. Teodoro Emboy in the presence of the seller and her
14
siblings namely, Aquilino Caldoza and the late Lilia Caldoza.
A year later, Juanario approached Lucila and volunteered to till the lot,
15
to which she agreed. In 1987, the spouses consented to Felomina’s
proposal to develop and lease the lot. They, however, shouldered the
real property taxes on the lot, which was paid through Felomina. In
1990, the spouses demanded rental from Felomina but she refused to
16
pay because her agricultural endeavor was allegedly not profitable.
When Lucila learned that a certificate of title in her name had already
been issued, she confronted Felomina who claimed that she already
gave her the title. Thinking that she might have misplaced the title,
Lucila executed an affidavit of loss which led to the issuance of another
17
certificate of title in her name.
On August 28, 2000, the trial court rendered a decision holding that an
implied trust existed between Felomina and Lucila, such that the latter
is merely holding the lot for the benefit of the former. It thus ordered the
conveyance of the subject lot in favor of Felomina. The dispositive
portion thereof, reads:
IN VIEW OF THE FOREGOING, judgment is hereby
rendered declaring, directing and ordering that:
WHEREFORE, premises considered, the appealed decision
of the Regional Trial Court, Branch 2, Butuan City, in Civil
Case No. 4270, is hereby REVERSED AND SET ASIDE. A
new one is heretofore rendered dismissing the complaint
below of plaintiff-appellee, F[e]lomina Abellana.
19
SO ORDERED.
Felomina filed a motion for reconsideration but the same was
20
denied. Hence, the instant petition.
The issue before us is: Who, as between Felomina and respondent
spouses, is the lawful owner of the controverted lot? To resolve this
issue, it is necessary to determine who paid the purchase price of the
lot.
After a thorough examination of the records and transcript of
stenographic notes, we find that it was Felomina and not Lucila who
truly purchased the questioned lot from Estela. The positive and
consistent testimony of Felomina alone, that she was the real vendee
of the lot, is credible to debunk the contrary claim of respondent
spouses. Indeed, the lone testimony of a witness, if credible, is
21
sufficient as in the present case. Moreover, Aquilino Caldoza, brother
22
of the vendor and one of the witnesses to the deed of sale,
categorically declared that Felomina was the buyer and the one who
23
paid the purchase price to her sister, Estela.
Then too, Juanario, who was allegedly hired by Lucila to develop the
lot, vehemently denied that he approached and convinced Lucila to let
him till the land. According to Juanario, he had never spoken to Lucila
about the lot and it was Felomina who recruited him to be the caretaker
24
of the litigated property.
The fact that it was Felomina who bought the lot was further bolstered
by her possession of the following documents from the time of their
issuance up to the present, to wit: (1) the transfer certificate of
25 26
title and tax declaration in the name of Lucila; (2) the receipts of real
property taxes in the name of Felomina Abellana for the years 1982-
27 28
1984, 1992-1994 and 1995; and (3) the survey plan of the lot.
Having determined that it was Felomina who paid the purchase price of
the subject lot, the next question to resolve is the nature of the
transaction between her and Lucila.
29
It appears that Felomina, being of advanced age with no family of her
own, used to purchase properties and afterwards give them to her
nieces. In fact, aside from the lot she bought for Lucila (marked as
Exhibit "R-2"), she also purchased 2 lots, one from Aquilino Caldoza
(marked as Exhibit "R-1") and the other from Domiciano Caldoza
(marked as Exhibit "R-3"), which she gave to Zaida Bascones (sister of
Lucila), thus:
Q I am showing to you again Exhibit R, according to you[,]
you bought Exhibits R-1, R-2 and R-3, do you remember
that?
A Yes sir.
xxx xxx xxx
Q Aquilin[o] Caldoza conveyed this land in Exhibit R-1 to
you?
A Yes, sir.
Q Is this now titled in your name?
A No. I was planning to give this land to my nieces. One of
which [was] already given to Mrs. [Lucila] Ponce.
Q I am talking only about this lot in Exhibit R-1[.]
A Not in my name.
Q In whose name was this lot in Exhibit R-1 now?
A In the name of Zaida Bascones.
Q Who prepared the deed of sale?
A At the start it was in the name of Rudy
30
[Torreon]. Because Rudy [Torreon] knew that there is some
trouble already about that lot he made a deed of sale to the
name of Zaida Bascones, which I planned to give that land to
her (sic).
Q As regards Exhibit R-1, you bought it actually?
A Yes, sir.
Q But the … original deed of sale was in the name of
Rudolfo [Torreon]?
A Yes, sir.
Q And later on Rudolfo [Torreon] again transferred it to Zaida
Bascones?
31
A Yes, sir.
Likewise, in the case of Lucila, though it was Felomina who paid for the
lot, she had Lucila designated in the deed as the vendee thereof and
had the title of the lot issued in Lucila’s name. It is clear therefore that
Felomina donated the land to Lucila. This is evident from her
declarations, viz:
Witness
A In 1981 there was a riceland offered so I told her that I
will buy that land and I will give to her later (sic), because
since 1981 up to 1992 Mrs. Lucila Ponce has no job.
Q Where is the land located?
A In Los Angeles, Butuan City.
Q Who was the owner of this land?
A The owner of that land is Mrs. Estela Caldoza-Pacr[e]s.
The husband is Pacr[e]s.
xxx xxx xxx
Q What did you do with this land belonging to Mrs. Estela-
Caldoza- Pacr[e]s?
A I paid the lot, then worked the lot, since at the start of my
buying the lot until now (sic).
Q You said that you told Lucila Ponce that you would
give the land to her later on, what did you do in
connection with this intention of yours to give the land
to her?
A So I put the name of the title in her name in good
faith (sic).
Q You mean to tell the court that when you purchased this
land located at Los Angeles, Butuan City, the instrument of
sale or the deed of sale was in the name of Lucila Ponce?
32
A Yes, sir.
xxx xxx xxx
Q Did you not ask your adviser Rudolfo [Torreon] whether it
was wise for you to place the property in the name of Lucila
Ponce when you are the one who is the owner?
33
A Because we have really the intention to give it to her.
Generally, contracts are obligatory in whatever form they may have
been entered into, provided all the essential requisites for their validity
are present. When, however, the law requires that a contract be in
some form in order that it may be valid, that requirement is absolute
and indispensable. Its non-observance renders the contract void and of
34
no effect. Thus, under Article 749 of the Civil Code –
Article 749. In order that the donation of an immovable
property may be valid, it must be made in a public document,
 specifying therein the property donated and the value of the
charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a
separate public document, but it shall not take effect unless it is done
during the lifetime of the donor.
donation. Dispensation of such solemnities would give rise to
anomalous situations where the formalities of a donation and a will in
donations inter vivos, and donations mortis causa, respectively, would
be done away with when the transfer of the property is made in favor of
a child or one to whom the donor stands in loco parentis. Such a
scenario is clearly repugnant to the mandatory nature of the law on
donation.

If the acceptance is made in a separate instrument, the donor shall be

While Felomina sought to recover the litigated lot on the ground of
notified thereof in an authentic form, and this step shall be noted in
implied trust and not on the invalidity of donation, the Court is clothed
both instruments.
with ample authority to address the latter issue in order to arrive at a
46
just decision that completely disposes of the controversy. Since rules
In the instant case, what transpired between Felomina and Lucila was of procedure are mere tools designed to facilitate the attainment of
a donation of an immovable property which was not embodied in a justice, they must be applied in a way that equitably and completely
47
public instrument as required by the foregoing article. Being an oral resolve the rights and obligations of the parties.
35
donation, the transaction was void. Moreover, even if Felomina
enjoyed the fruits of the land with the intention of giving effect to the
As to the trial court’s award of attorney’s fees and litigation expenses,
donation after her demise, the conveyance is still a void
the same should be deleted for lack of basis. Aside from the
donation mortis causa, for non-compliance with the formalities of a
36 allegations in the complaint, no evidence was presented in support of
will. No valid title passed regardless of the intention of Felomina to
said claims. The trial court made these awards in the dispositive
donate the property to Lucila, because the naked intent to convey
portion of its decision without stating any justification therefor in
without the required solemnities does not suffice for gratuitous 48
37 the ratio decidendi. Their deletion is therefore proper.
alienations, even as between the parties inter se. At any rate,
Felomina now seeks to recover title over the property because of the
alleged ingratitude of the respondent spouses. Finally, in deciding in favor of Felomina, the trial court ordered
respondent spouses to execute a deed of sale over the subject lot in
favor of Felomina in order to effect the transfer of title to the latter. The
Unlike ordinary contracts (which are perfected by the concurrence of
proper remedy, however, is provided under Section 10 (a), Rule 39 of
the requisites of consent, object and cause pursuant to Article
38 the Revised Rules of Civil Procedure which provides that "x x x [i]f real
1318 of the Civil Code), solemn contracts like donations are
or personal property is situated within the Philippines, the court in lieu
perfected only upon compliance with the legal formalities under Articles
39 40 of directing a conveyance thereof may by an order divest the title of
748 and 749. Otherwise stated, absent the solemnity requirements
any party and vest it in others, which shall have the force and effect of
for validity, the mere intention of the parties does not give rise to a
a conveyance executed in due form of law."
contract. The oral donation in the case at bar is therefore legally
inexistent and an action for the declaration of the inexistence of a
41
contract does not prescribe. Hence, Felomina can still recover title WHEREFORE, in view of all the foregoing, the petition
from Lucila. is GRANTED and the June 16, 2003 decision of the Court of Appeals
in CA-G.R. CV No. 69213 is REVERSED and SET ASIDE. The August
42 28, 2000 decision of the Regional Trial Court of Butuan City, Branch 2,
Article 1448 of the Civil Code on implied trust finds no application in
in Civil Case No. 4270, is REINSTATED with the
the instant case. The concept of implied trusts is that from the facts
following MODIFICATIONS:
and circumstances of a given case, the existence of a trust relationship
is inferred in order to effect the presumed intention of the
43
parties. Thus, one of the recognized exceptions to the establishment (1) Declaring petitioner Felomina Abellana as the absolute
44
of an implied trust is where a contrary intention is proved, as in the owner of Lot 3, Pcs-10-000198;
present case. From the testimony of Felomina herself, she wanted to
give the lot to Lucila as a gift. To her mind, the execution of a deed with
(2) Ordering the Register of Deeds of Butuan City to cancel
Lucila as the buyer and the subsequent issuance of title in the latter’s
TCT No. T-2874 in the name of respondent Lucila Ponce
name were the acts that would effectuate her generosity. In so carrying
and to issue a new one in the name of petitioner Felomina
out what she conceived, Felomina evidently displayed her unequivocal
Abellana; and
intention to transfer ownership of the lot to Lucila and not merely to
constitute her as a trustee thereof. It was only when their relationship
soured that she sought to revoke the donation on the theory of implied (3) Deleting the awards of attorney’s fees and litigation
trust, though as previously discussed, there is nothing to revoke expenses for lack of basis.
because the donation was never perfected.
No pronouncement as to costs.
In declaring Lucila as the owner of the disputed lot, the Court of
Appeals applied, among others, the second sentence of Article 1448
which states – SO ORDERED.

"x x x However, if the person to whom the title is conveyed is

a child, legitimate or illegitimate, of the one paying the price
of the sale, no trust is implied by law, it being disputably
presumed that there is a gift in favor of the child."

Said presumption also arises where the property is given to a person to

whom the person paying the price stands in loco parentis or as a
45
substitute parent.

The abovecited provision, however, is also not applicable here

because, first, it was not established that Felomina stood as a
substitute parent of Lucila; and second, even assuming that she did,
the donation is still void because the transfer and acceptance was not
embodied in a public instrument. We note that said provision merely
raised a presumption that the conveyance was a gift but nothing
therein exempts the parties from complying with the formalities of a
3. Partnership where immovable is contributed

Article 1771 to 1773 of the Civil Code

Article 1771. A partnership may be constituted in any form,

except where immovable property or real rights are
contributed thereto, in which case a public instrument shall
be necessary. (1667a)

Article 1772. Every contract of partnership having a capital

of three thousand pesos or more, in money or property, shall
appear in a public instrument, which must be recorded in the
Office of the Securities and Exchange Commission.

Failure to comply with the requirements of the preceding

paragraph shall not affect the liability of the partnership and
the members thereof to third persons. (n)

Article 1773. A contract of partnership is void, whenever

immovable property is contributed thereto, if an inventory of
said property is not made, signed by the parties, and
attached to the public instrument. (1668a)

4. Notarial Will

Article 805 and 806 of the Civil Code

Article 805. Every will, other than a holographic will, must be

subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.

The testator or the person requested by him to write his

name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon

which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.

If the attestation clause is in a language not known to the

witnesses, it shall be interpreted to them. (n)

Article 806. Every will must be acknowledged before a

notary public by the testator and the witnesses. The notary
public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court. (n)
G.R. No. L-20357 November 25, 1967

IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF

THE WILL OF GREGORIO GATCHALIAN, deceased. PEDRO
REYES GARCIA, petitioner-appellant,
vs.
FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G.
COSCA, FEDERICO G. TUBOG, VIRGINIA G. TALANAY and
ANGELES G. TALANAY, oppositors-appellees.

E. Debuque for petitioner-appellant.

E. L. Segovia for oppositors-appellees.

DIZON, J.:

This is an appeal taken by Pedro Reyes Garcia from the decision of

the Court of First Instance of Rizal in Special Proceedings No. 2623
denying the allowance of the will of the late Gregorio Gatchalian, on
the ground that the attesting witnesses did not acknowledge it before a
notary public, as required by law.

On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of

age, died in the municipality of Pasig, Province of Rizal, leaving no
forced heirs. On April 2 of the same year, appellant filed a petition with
the above named court for the probate of said alleged will (Exhibit "C")
wherein he was instituted as sole heir. Felipe Gatchalian, Aurora G.
Camins, Angeles G. Cosca, Federico G. Tubog, Virginia G. Talanay
and Angeles G. Talanay, appellees herein, opposed the petition on the
ground, among others, that the will was procured by fraud; that the
deceased did not intend the instrument signed by him to be as his will;
and that the deceased was physically and mentally incapable of
making a will at the time of the alleged execution of said will.

After due trial, the court rendered the appealed decision finding the
document Exhibit "C" to be the authentic last will of the deceased but
disallowing it for failure to comply with the mandatory requirement of
Article 806 of the New Civil Code — that the will must be
acknowledged before a notary public by the testator and the witnesses.

An examination of the document (Exhibit "C") shows that the same was
acknowledged before a notary public by the testator but not by the
instrumental witnesses.

Article 806 of the New Civil Code reads as follows:

Every will must be acknowledged before a notary public by

the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the
office of the Clerk of Court.

We have held heretofore that compliance with the requirement

contained in the above legal provision to the effect that a will must be
acknowledged before a notary public by the testator and also by the
witnesses is indispensable for its validity (In re: Testate Estate of
Alberto, G. R. No. L-11948, April 29, 1959). As the document under
consideration does not comply with this requirement, it is obvious that
the same may not be probated.

WHEREFORE, the decision appealed from is affirmed, with costs.

G.R. No. 122880 April 12, 2006 Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang
nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na
kailanman siyang mag-lagak ng piyansiya.
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng
ERNESTO G. CASTILLO, Respondents. Hunyo, 1981.

DECISION (Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
TINGA, J.:

PATUNAY NG MGA SAKSI

The core of this petition is a highly defective notarial will, purportedly
executed by Eugenia E. Igsolo (decedent), who died on 16 December
1982 at the age of 80. In refusing to give legal recognition to the due Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong
execution of this document, the Court is provided the opportunity to ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya
assert a few important doctrinal rules in the execution of notarial wills, niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng
all self-evident in view of Articles 805 and 806 of the Civil Code. nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t
sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
A will whose attestation clause does not contain the number of
tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng
pages on which the will is written is fatally defective. A will whose
nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng
attestation clause is not signed by the instrumental witnesses is
kasulatan ito.
fatally defective. And perhaps most importantly, a will which does
not contain an acknowledgment, but a mere jurat, is fatally
defective. Any one of these defects is sufficient to deny probate. EUGENIA E. IGSOLO
A notarial will with all three defects is just aching for judicial address: 500 San Diego St.
rejection. Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
There is a distinct and consequential reason the Civil Code provides a
comprehensive catalog of imperatives for the proper execution of a QUIRINO AGRAVA
notarial will. Full and faithful compliance with all the detailed requisites address: 1228-Int. 3, Kahilum
under Article 805 of the Code leave little room for doubt as to the Pandacan, Manila Res. Cert. No. A-458365
validity in the due execution of the notarial will. Article 806 likewise Issued at Manila on Jan. 21, 1981
imposes another safeguard to the validity of notarial wills — that they
be acknowledged before a notary public by the testator and the
LAMBERTO C. LEAÑO
witnesses. A notarial will executed with indifference to these two codal
address: Avenue 2, Blcok 7,
provisions opens itself to nagging questions as to its legitimacy.
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
The case stems from a petition for probate filed on 10 April 1984 with
the Regional Trial Court (RTC) of Manila. The petition filed by petitioner
JUANITO ESTRERA
Felix Azuela sought to admit to probate the notarial will of Eugenia E.
address: City Court Compound,
Igsolo, which was notarized on 10 June 1981. Petitioner is the son of
City of Manila Res. Cert. No. A574829
the cousin of the decedent.
Issued at Manila on March 2, 1981.

The will, consisting of two (2) pages and written in the vernacular
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa
Pilipino, read in full:
Lungsod ng Maynila.

HULING HABILIN NI EUGENIA E. IGSOLO

(Sgd.)
PETRONIO Y. BAUTISTA
SA NGALAN NG MAYKAPAL, AMEN:
Doc. No. 1232 ; NOTARIO PUBLIKO
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Page No. 86 ; Until Dec. 31, 1981
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi- Book No. 43 ; PTR-152041-1/2/81-Manila
1
isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling Series of 1981 TAN # 1437-977-8
habilin at testamento, at binabali wala ko lahat ang naunang ginawang
habilin o testamento:
The three named witnesses to the will affixed their signatures on the
left-hand margin of both pages of the will, but not at the bottom of the
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La attestation clause.
Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at
ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
The probate petition adverted to only two (2) heirs, legatees and
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
devisees of the decedent, namely: petitioner himself, and one Irene
Lynn Igsolo, who was alleged to have resided abroad. Petitioner
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan prayed that the will be allowed, and that letters testamentary be issued
sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa to the designated executor, Vart Prague.
mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28,
Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din
The petition was opposed by Geralda Aida Castillo (Geralda Castillo),
ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa
who represented herself as the attorney-in-fact of "the 12 legitimate
inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten 2
heirs" of the decedent. Geralda Castillo claimed that the will is a
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan
forgery, and that the true purpose of its emergence was so it could be
sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24,
utilized as a defense in several court cases filed by oppositor against
Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay
petitioner, particularly for forcible entry and usurpation of real property,
walang pasubali’t at kondiciones;
all centering on petitioner’s right to occupy the properties of the
3 8
decedent. It also asserted that contrary to the representations of
petitioner, the decedent was actually survived by 12 legitimate heirs,
namely her grandchildren, who were then residing abroad. Per records,
it was subsequently alleged that decedent was the widow of Bonifacio
4 who had substituted his since deceased mother-in-law, Geralda
Igsolo, who died in 1965, and the mother of a legitimate child,
5 Castillo. In a Decision dated 17 August 1995, the Court of Appeals
Asuncion E. Igsolo, who predeceased her mother by three (3) months.
Oppositor Geralda Castillo also argued that the will was not executed
and attested to in accordance with law. She pointed out that
decedent’s signature did not appear on the second page of the will,
and the will was not properly acknowledged. These twin arguments are
among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated
6 Code that "the number of pages used in a notarial will be stated in the
10 August 1992. The RTC favorably took into account the testimony of
the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano,
and Juanito Estrada. The RTC also called to fore "the modern
tendency in respect to the formalities in the execution of a will x x x
with the end in view of giving the testator more freedom in expressing
7
his last wishes;" and from this perspective, rebutted oppositor’s
arguments that the will was not properly executed and attested to in
accordance with law.
After a careful examination of the will and consideration of the
testimonies of the subscribing and attesting witnesses, and having in
mind the modern tendency in respect to the formalities in the execution
of a will, i.e., the liberalization of the interpretation of the law on the
formal requirements of a will with the end in view of giving the testator
more freedom in expressing his last wishes, this Court is persuaded to
rule that the will in question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at
the end of the will after the signature of the testatrix, the following
statement is made under the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling
dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana
na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit
at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at
bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t
dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial
compliance with the requirements of the law.
On the oppositor’s contention that the attestation clause was not
signed by the subscribing witnesses at the bottom thereof, this Court is
of the view that the signing by the subscribing witnesses on the left
margin of the second page of the will containing the attestation clause
and acknowledgment, instead of at the bottom thereof, substantially
satisfies the purpose of identification and attestation of the will.
With regard to the oppositor’s argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the
attestation did not state the number of pages thereof, it is worthy to
note that the will is composed of only two pages. The first page
contains the entire text of the testamentary dispositions, and the
second page contains the last portion of the attestation clause and
acknowledgement. Such being so, the defects are not of a serious
nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page,
which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the testatrix
on the will is a forgery, the testimonies of the three subscribing
witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of
the will.
The Order was appealed to the Court of Appeals by Ernesto Castillo,
reversed the trial court and ordered the dismissal of the petition for
9
probate. The Court of Appeals noted that the attestation clause failed
to state the number of pages used in the will, thus rendering the will
10
void and undeserving of probate.
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil
attestation clause" is merely directory, rather than mandatory, and thus
11
susceptible to what he termed as "the substantial compliance rule."
The solution to this case calls for the application of Articles 805 and
806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed
at the end thereof by the testator himself or by the testator's name
written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required
to retain a copy of the will, or file another with the office of the Clerk of
Court.
The appellate court, in its Decision, considered only one defect, the
failure of the attestation clause to state the number of pages of the will.
But an examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state
12
the number of pages of the will. There was an incomplete attempt to
comply with this requisite, a space having been allotted for the
insertion of the number of pages in the attestation clause. Yet the blank
was never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial
13
court, citing in the process Uy Coque v. Navas L. Sioca and In re: Will
14
of Andrada. In Uy Coque, the Court noted that among the defects of
the will in question was the failure of the attestation clause to state the
15
number of pages contained in the will. In ruling that the will could not
be admitted to probate, the Court made the following consideration
which remains highly relevant to this day: "The purpose of requiring the
number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet
would completely change the testamentary dispositions of the will
and in the absence of a statement of the total number of sheets
such removal might be effected by taking out the sheet and
changing the numbers at the top of the following sheets or pages.
If, on the other hand, the total number of sheets is stated in the
attestation clause the falsification of the document will involve the
inserting of new pages and the forging of the signatures of the testator
and witnesses in the margin, a matter attended with much greater
16
difficulty."
The case of In re Will of Andrada concerned a will the attestation
clause of which failed to state the number of sheets or pages used.
This consideration alone was sufficient for the Court to declare
"unanim[ity] upon the point that the defect pointed out in the attesting
17
clause is fatal." It was further observed that "it cannot be denied that
the x x x requirement affords additional security against the danger that
the will may be tampered with; and as the Legislature has seen fit to
18
prescribe this requirement, it must be considered material."
Against these cited cases, petitioner cites Singson v.
19 20
Florentino and Taboada v. Hon. Rosal, wherein the Court allowed
probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will. Yet the
appellate court itself considered the import of these two cases, and
made the following distinction which petitioner is unable to rebut, and
which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show
that the attestation does not state the number of pages used upon
which the will is written. Hence, the Will is void and undeserving of
probate.
We are not impervious of the Decisions of the Supreme Court in
"Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and
Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195,"
to the effect that a will may still be valid even if the attestation does not
contain the number of pages used upon which the Will is written.
However, the Decisions of the Supreme Court are not applicable in the
aforementioned appeal at bench. This is so because, in the case of
"Manuel Singson versus Emilia Florentino, et al., supra," although the
attestation in the subject Will did not state the number of pages used in
the will, however, the same was found in the last part of the body of the
Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as
amended by Act No. 2645, which requires that the attestation clause
shall state the number of pages or sheets upon which the will is written,
which requirement has been held to be mandatory as an effective
safeguard against the possibility of interpolation or omission of some of
the pages of the will to the prejudice of the heirs to whom the property
is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil.
30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil.
611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or
pages composing the will and that if this is missing or is omitted, it will
have the effect of invalidating the will if the deficiency cannot be
supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different. While
the attestation clause does not state the number of sheets or pages
upon which the will is written, however, the last part of the body of the
will contains a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a
broad and more liberal view has been adopted to prevent the will of the
testator from being defeated by purely technical considerations." (page
165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the
notarial acknowledgement in the Will states the number of pages used
in the:
"x x x
We have examined the will in question and noticed that the attestation
clause failed to state the number of pages used in writing the will. This
would have been a fatal defect were it not for the fact that, in this case,
it is discernible from the entire will that it is really and actually
composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains
the entirety of the testamentary dispositions is signed by the testatrix at
the end or at the bottom while the instrumental witnesses signed at the
left margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament
consists of two pages including this page" (pages 200-201, supra)
(Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will
is not stated in any part of the Will. The will does not even contain any
notarial acknowledgment wherein the number of pages of the will
21
should be stated.
Both Uy Coque and Andrada were decided prior to the enactment of
the Civil Code in 1950, at a time when the statutory provision
governing the formal requirement of wills was Section
22
618 of the Code of Civil Procedure. Reliance on these cases remains
apropos, considering that the requirement that the attestation state the
23
number of pages of the will is extant from Section 618. However, the
enactment of the Civil Code in 1950 did put in force a rule of
interpretation of the requirements of wills, at least insofar as the
attestation clause is concerned, that may vary from the philosophy that
governed these two cases. Article 809 of the Civil Code states: "In the
absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in
the language used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial
compliance with all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code
Commission, which stated that "the underlying and fundamental
objective permeating the provisions on the [law] on [wills] in this project
consists in the [liberalization] of the manner of their execution with the
end in view of giving the testator more [freedom] in [expressing] his last
wishes. This objective is in accord with the [modern tendency] in
24
respect to the formalities in the execution of wills." However,
petitioner conveniently omits the qualification offered by the Code
Commission in the very same paragraph he cites from their report, that
such liberalization be "but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and
25
improper pressure and influence upon the testator."
26
Caneda v. Court of Appeals features an extensive discussion made by
Justice Regalado, speaking for the Court on the conflicting views on the
manner of interpretation of the legal formalities required in the execution of
27
the attestation clause in wills. Uy Coque and Andrada are cited therein,
along with several other cases, as examples of the application of the rule of
28
strict construction. However, the Code Commission opted to recommend a
more liberal construction through the "substantial compliance rule" under
Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to
how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will
was notarized. All these are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the presence of
each other must substantially appear in the attestation clause,
being the only check against perjury in the probate
29
proceedings. (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes
in its assailed decision, considering that the failure to state the number
of pages of the will in the attestation clause is one of the defects which
cannot be simply disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation clause failed to state that
the witnesses subscribed their respective signatures to the will in the
30
presence of the testator and of each other, the other omission cited
by Justice J.B.L. Reyes which to his estimation cannot be lightly
disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now
stands, is that omission which can be supplied by an examination of
the will itself, without the need of resorting to extrinsic evidence, will not
be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will
31
itself." Thus, a failure by the attestation clause to state that the
testator signed every page can be liberally construed, since that fact
can be checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one another’s
presence should be considered a fatal flaw since the attestation is the
32
only textual guarantee of compliance.
The failure of the attestation clause to state the number of pages on
which the will was written remains a fatal flaw, despite Article 809. The
purpose of the law in requiring the clause to state the number of pages
on which the will is written is to safeguard against possible interpolation
or omission of one or some of its pages and to prevent any increase or
33
decrease in the pages. The failure to state the number of pages
equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the
execution of which they had ostensibly just witnessed and subscribed
to. Following Caneda, there is substantial compliance with this
requirement if the will states elsewhere in it how many pages it is
comprised of, as was the situation in Singson and Taboada. However,
in this case, there could have been no substantial compliance with the
requirements under Article 805 since there is no statement in the
attestation clause or anywhere in the will itself as to the number of
pages which comprise the will.
At the same time, Article 809 should not deviate from the need to
comply with the formal requirements as enumerated under Article 805.
Whatever the inclinations of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in Section 618
of the Code of Civil Procedure, convinced that these remained effective
safeguards against the forgery or intercalation of notarial
34
wills. Compliance with these requirements, however picayune in
impression, affords the public a high degree of comfort that the testator
himself or herself had decided to convey property post mortem in the
35
manner established in the will. The transcendent legislative intent,
even as expressed in the cited comments of the Code
Commission, is for the fruition of the testator’s incontestable
desires, and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals.
However, an examination of the will itself reveals a couple of even
more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear
on the left-hand margin of the will, they do not appear at the bottom of
the attestation clause which after all consists of their averments before
the notary public.
36
Cagro v. Cagro is material on this point. As in this case, "the
signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the
37
same is signed by the witnesses on the left-hand margin." While
38
three (3) Justices considered the signature requirement had been
substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly
signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the
will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand
margin.
We are of the opinion that the position taken by the appellant is correct.
The attestation clause is "a memorandum of the facts attending the
execution of the will" required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the witnesses,
since the omission of their signatures at the bottom thereof negatives
their participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law and
may be deemed as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages.
If an attestation clause not signed by the three witnesses at the bottom
thereof, be admitted as sufficient, it would be easy to add such clause
to a will on a subsequent occasion and in the absence of the testator
39
and any or all of the witnesses.
The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental witnesses
sign each page of the will, from the requisite that the will be "attested
and subscribed by [the instrumental witnesses]." The respective intents
behind these two classes of signature are distinct from each other. The
signatures on the left-hand corner of every page signify, among others,
that the witnesses are aware that the page they are signing forms part
of the will. On the other hand, the signatures to the attestation clause
establish that the witnesses are referring to the statements contained
in the attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will. An unsigned
attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the
unsigned attestation clause, such signatures cannot demonstrate these
witnesses’ undertakings in the clause, since the signatures that do
appear on the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this
case signed the attestation clause itself, but not the left-hand margin of
the page containing such clause. Without diminishing the value of the
instrumental witnesses’ signatures on each and every page, the fact
must be noted that it is the attestation clause which contains the
utterances reduced into writing of the testamentary witnesses
themselves. It is the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used upon which the
will is written; the fact that the testator had signed the will and every
page thereof; and that they witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated these elemental
facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly
attested to by the instrumental witnesses, as they failed to sign the
attestation clause.
Yet, there is another fatal defect to the will on which the denial of this
petition should also hinge. The requirement under Article 806 that
"every will must be acknowledged before a notary public by the testator
and the witnesses" has also not been complied with. The importance of
this requirement is highlighted by the fact that it had been segregated
from the other requirements under Article 805 and entrusted into a
separate provision, Article 806. The non-observance of Article 806 in
this case is equally as critical as the other cited flaws in compliance
with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista,
wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic),
40
1981 dito sa Lungsod ng Maynila." By no manner of contemplation
can those words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a deed in going
before some competent officer or court and declaring it to be his act or
41
deed. It involves an extra step undertaken whereby the signor
actually declares to the notary that the executor of a document has
attested to the notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it
does not hew to the usual language thereof. A jurat is that part of an
affidavit where the notary certifies that before him/her, the document
42
was subscribed and sworn to by the executor. Ordinarily, the
language of the jurat should avow that the document was subscribed
and sworn before the notary public, while in this case, the notary public
averred that he himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses the signing of
and swearing in of the executors of the document, which in this case
would involve the decedent and the instrumental witnesses.

Yet even if we consider what was affixed by the notary public as

a jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be "acknowledged", and not
merely subscribed and sworn to. The will does not present any textual
proof, much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their own free act
or deed. The acknowledgment made in a will provides for another all-
important legal safeguard against spurious wills or those made beyond
the free consent of the testator. An acknowledgement is not an empty
43
meaningless act. The acknowledgment coerces the testator and the
instrumental witnesses to declare before an officer of the law that they
had executed and subscribed to the will as their own free act or deed.
Such declaration is under oath and under pain of perjury, thus allowing
for the criminal prosecution of persons who participate in the execution
of spurious wills, or those executed without the free consent of the
testator. It also provides a further degree of assurance that the testator
is of certain mindset in making the testamentary dispositions to those
persons he/she had designated in the will.

It may not have been said before, but we can assert the rule, self-
evident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and sworn to
before a notary public.

There are two other requirements under Article 805 which were not
fully satisfied by the will in question. We need not discuss them at
length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the
instrumental witnesses sign each and every page of the will on the left
margin, except the last; and that all the pages shall be numbered
correlatively in letters placed on the upper part of each page. In this
case, the decedent, unlike the witnesses, failed to sign both pages of
the will on the left margin, her only signature appearing at the so-called
44
"logical end" of the will on its first page. Also, the will itself is not
numbered correlatively in letters on each page, but instead numbered
with Arabic numerals. There is a line of thought that has disabused the
notion that these two requirements be construed as
45
mandatory. Taken in isolation, these omissions, by themselves, may
not be sufficient to deny probate to a will. Yet even as these omissions
are not decisive to the adjudication of this case, they need not be dwelt
on, though indicative as they may be of a general lack of due regard for
the requirements under Article 805 by whoever executed the will.

All told, the string of mortal defects which the will in question suffers
from makes the probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.
 5. Registration of Documents

Forms in conveyancing – Section 112 of Presidential Decree

No. 1529 or the Property Registration Decree

Section 112. Forms in conveyancing. The Commissioner of

Land Registration shall prepare convenient blank forms as
may be necessary to help facilitate the proceedings in land
registration and shall take charge of the printing of land title
forms.

Deeds, conveyances, encumbrances, discharges, powers of

attorney and other voluntary instruments, whether affecting
registered or unregistered land, executed in accordance with
law in the form of public instruments shall be registerable:
Provided, that, every such instrument shall be signed by the
person or persons executing the same in the presence of at
least two witnesses who shall likewise sign thereon, and
shall acknowledged to be the free act and deed of the
person or persons executing the same before a notary public
or other public officer authorized by law to take
acknowledgment. Where the instrument so acknowledged
consists of two or more pages including the page whereon
acknowledgment is written, each page of the copy which is
to be registered in the office of the Register of Deeds, or if
registration is not contemplated, each page of the copy to be
kept by the notary public, except the page where the
signatures already appear at the foot of the instrument, shall
be signed on the left margin thereof by the person or
persons executing the instrument and their witnesses, and
all the ages sealed with the notarial seal, and this fact as well
as the number of pages shall be stated in the
acknowledgment. Where the instrument acknowledged
relates to a sale, transfer, mortgage or encumbrance of two
or more parcels of land, the number thereof shall likewise be
set forth in said acknowledgment.

6. Transfer of Ownership

Delivery of the thing sold – Articles 1498 and 1544 of the

Civil Code

Article 1498. When the sale is made through a public

instrument, the execution thereof shall be equivalent to the
delivery of the thing which is the object of the contract, if
from the deed the contrary does not appear or cannot clearly
be inferred.

With regard to movable property, its delivery may also be

made by the delivery of the keys of the place or depository
where it is stored or kept. (1463a)

Article 1544. If the same thing should have been sold to

different vendees, the ownership shall be transferred to the
person who may have first taken possession thereof in good
faith, if it should be movable property.

Should it be immovable property, the ownership shall belong

to the person acquiring it who in good faith first recorded it in
the Registry of Property.

Should there be no inscription, the ownership shall pertain to

the person who in good faith was first in the possession; and,
in the absence thereof, to the person who presents the
oldest title, provided there is good faith.
G.R. No. 92989 July 8, 1991
PERFECTO DY, JR. petitioner,
vs.
COURT OF APPEALS, GELAC TRADING INC., and ANTONIO V.
GONZALES, respondents.
Zosa & Quijano Law Offices for petitioner.
Expedito P. Bugarin for respondent GELAC Trading, Inc.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari seeking the reversal of the
March 23, 1990 decision of the Court of Appeals which ruled that the
petitioner's purchase of a farm tractor was not validly consummated
and ordered a complaint for its recovery dismissed.
The facts as established by the records are as follows:
The petitioner, Perfecto Dy and Wilfredo Dy are brothers. Sometime in
1979, Wilfredo Dy purchased a truck and a farm tractor through
financing extended by Libra Finance and Investment Corporation
(Libra). Both truck and tractor were mortgaged to Libra as security for
the loan.
The petitioner wanted to buy the tractor from his brother so on August
20, 1979, he wrote a letter to Libra requesting that he be allowed to
purchase from Wilfredo Dy the said tractor and assume the mortgage
debt of the latter.
In a letter dated August 27, 1979, Libra thru its manager, Cipriano Ares
approved the petitioner's request.
Thus, on September 4, 1979, Wilfredo Dy executed a deed of absolute
sale in favor of the petitioner over the tractor in question.
At this time, the subject tractor was in the possession of Libra Finance
due to Wilfredo Dy's failure to pay the amortizations.
Despite the offer of full payment by the petitioner to Libra for the
tractor, the immediate release could not be effected because Wilfredo
Dy had obtained financing not only for said tractor but also for a truck
and Libra insisted on full payment for both.
The petitioner was able to convince his sister, Carol Dy-Seno, to
purchase the truck so that full payment could be made for both. On
November 22, 1979, a PNB check was issued in the amount of
P22,000.00 in favor of Libra, thus settling in full the indebtedness of
Wilfredo Dy with the financing firm. Payment having been effected
through an out-of-town check, Libra insisted that it be cleared first
before Libra could release the chattels in question.
Meanwhile, Civil Case No. R-16646 entitled "Gelac Trading, Inc. v.
Wilfredo Dy", a collection case to recover the sum of P12,269.80 was
pending in another court in Cebu.
On the strength of an alias writ of execution issued on December 27,
1979, the provincial sheriff was able to seize and levy on the tractor
which was in the premises of Libra in Carmen, Cebu. The tractor was
subsequently sold at public auction where Gelac Trading was the lone
bidder. Later, Gelac sold the tractor to one of its stockholders, Antonio
Gonzales.
It was only when the check was cleared on January 17, 1980 that the
petitioner learned about GELAC having already taken custody of the
subject tractor. Consequently, the petitioner filed an action to recover
the subject tractor against GELAC Trading with the Regional Trial
Court of Cebu City.
On April 8, 1988, the RTC rendered judgment in favor of the petitioner.
The dispositive portion of the decision reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendant, pronouncing that the
plaintiff is the owner of the tractor, subject matter of this
case, and directing the defendants Gelac Trading
Corporation and Antonio Gonzales to return the same to the
plaintiff herein; directing the defendants jointly and severally
to pay to the plaintiff the amount of P1,541.00 as expenses
for hiring a tractor; P50,000 for moral damages; P50,000 for
exemplary damages; and to pay the cost. (Rollo, pp. 35-36)
On appeal, the Court of Appeals reversed the decision of the RTC and
dismissed the complaint with costs against the petitioner. The Court of
Appeals held that the tractor in question still belonged to Wilfredo Dy
when it was seized and levied by the sheriff by virtue of the alias writ of
execution issued in Civil Case No. R-16646.
The petitioner now comes to the Court raising the following questions:
A.
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS MISAPPREHENDED THE FACTS AND ERRED
IN NOT AFFIRMING THE TRIAL COURT'S FINDING THAT
OWNERSHIP OF THE FARM TRACTOR HAD ALREADY
PASSED TO HEREIN PETITIONER WHEN SAID
TRACTOR WAS LEVIED ON BY THE SHERIFF
PURSUANT TO AN ALIAS WRIT OF EXECUTION ISSUED
IN ANOTHER CASE IN FAVOR OF RESPONDENT GELAC
TRADING INC.
B.
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS EMBARKED ON MERE CONJECTURE AND
SURMISE IN HOLDING THAT THE SALE OF THE
AFORESAID TRACTOR TO PETITIONER WAS DONE IN
FRAUD OF WILFREDO DY'S CREDITORS, THERE BEING
NO EVIDENCE OF SUCH FRAUD AS FOUND BY THE
TRIAL COURT.
C.
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS MISAPPREHENDED THE FACTS AND ERRED
IN NOT SUSTAINING THE FINDING OF THE TRIAL
COURT THAT THE SALE OF THE TRACTOR BY
RESPONDENT GELAC TRADING TO ITS CO-
RESPONDENT ANTONIO V. GONZALES ON AUGUST 2,
1980 AT WHICH TIME BOTH RESPONDENTS ALREADY
KNEW OF THE FILING OF THE INSTANT CASE WAS
VIOLATIVE OF THE HUMAN RELATIONS PROVISIONS
OF THE CIVIL CODE AND RENDERED THEM LIABLE
FOR THE MORAL AND EXEMPLARY DAMAGES
SLAPPED AGAINST THEM BY THE TRIAL COURT. (Rollo,
p. 13)
The respondents claim that at the time of the execution of the deed of
sale, no constructive delivery was effected since the consummation of
the sale depended upon the clearance and encashment of the check
which was issued in payment of the subject tractor.
In the case of Servicewide Specialists Inc. v. Intermediate Appellate
Court. (174 SCRA 80 [1989]), we stated that:
xxx xxx xxx
The rule is settled that the chattel mortgagor continues to be
the owner of the property, and therefore, has the power to
 alienate the same; however, he is obliged under pain of
penal liability, to secure the written consent of the
mortgagee. (Francisco, Vicente, Jr., Revised Rules of Court
in the Philippines, (1972), Volume IV-B Part 1, p. 525). Thus,
the instruments of mortgage are binding, while they subsist,
not only upon the parties executing them but also upon those
who later, by purchase or otherwise, acquire the properties
referred to therein.
The absence of the written consent of the mortgagee to the
sale of the mortgaged property in favor of a third person,
therefore, affects not the validity of the sale but only the
penal liability of the mortgagor under the Revised Penal
Code and the binding effect of such sale on the mortgagee
under the Deed of Chattel Mortgage.
xxx xxx xxx
The mortgagor who gave the property as security under a chattel
mortgage did not part with the ownership over the same. He had the
right to sell it although he was under the obligation to secure the written
consent of the mortgagee or he lays himself open to criminal
prosecution under the provision of Article 319 par. 2 of the Revised
Penal Code. And even if no consent was obtained from the mortgagee,
the validity of the sale would still not be affected.
Thus, we see no reason why Wilfredo Dy, as the chattel mortgagor can
not sell the subject tractor. There is no dispute that the consent of Libra
Finance was obtained in the instant case. In a letter dated August 27,
1979, Libra allowed the petitioner to purchase the tractor and assume
the mortgage debt of his brother. The sale between the brothers was
therefore valid and binding as between them and to the mortgagee, as
well.
Article 1496 of the Civil Code states that the ownership of the thing
sold is acquired by the vendee from the moment it is delivered to him in
any of the ways specified in Articles 1497 to 1501 or in any other
manner signing an agreement that the possession is transferred from
the vendor to the vendee. We agree with the petitioner that Articles
1498 and 1499 are applicable in the case at bar.
Article 1498 states:
Art. 1498. When the sale is made through a public
instrument, the execution thereof shall be equivalent to the
delivery of the thing which is the object of the contract, if
from the deed the contrary does not appear or cannot clearly
be inferred.
xxx xxx xxx
Article 1499 provides:
Article 1499. The delivery of movable property may likewise
be made by the mere consent or agreement of the
contracting parties, if the thing sold cannot be transferred to
the possession of the vendee at the time of the sale, or if the
latter already had it in his possession for any other reason.
(1463a)
In the instant case, actual delivery of the subject tractor could not be
made. However, there was constructive delivery already upon the
execution of the public instrument pursuant to Article 1498 and upon
the consent or agreement of the parties when the thing sold cannot be
immediately transferred to the possession of the vendee. (Art. 1499)
The respondent court avers that the vendor must first have control and
possession of the thing before he could transfer ownership by
constructive delivery. Here, it was Libra Finance which was in
possession of the subject tractor due to Wilfredo's failure to pay the
amortization as a preliminary step to foreclosure. As mortgagee, he
has the right of foreclosure upon default by the mortgagor in the
performance of the conditions mentioned in the contract of mortgage.
The law implies that the mortgagee is entitled to possess the
mortgaged property because possession is necessary in order to
enable him to have the property sold.
While it is true that Wilfredo Dy was not in actual possession and
control of the subject tractor, his right of ownership was not divested
from him upon his default. Neither could it be said that Libra was the
owner of the subject tractor because the mortgagee can not become
the owner of or convert and appropriate to himself the property
mortgaged. (Article 2088, Civil Code) Said property continues to
belong to the mortgagor. The only remedy given to the mortgagee is to
have said property sold at public auction and the proceeds of the sale
applied to the payment of the obligation secured by the mortgagee.
(See Martinez v. PNB, 93 Phil. 765, 767 [1953]) There is no showing
that Libra Finance has already foreclosed the mortgage and that it was
the new owner of the subject tractor. Undeniably, Libra gave its
consent to the sale of the subject tractor to the petitioner. It was aware
of the transfer of rights to the petitioner.
Where a third person purchases the mortgaged property, he
automatically steps into the shoes of the original mortgagor.
(See Industrial Finance Corp. v. Apostol, 177 SCRA 521 [1989]). His
right of ownership shall be subject to the mortgage of the thing sold to
him. In the case at bar, the petitioner was fully aware of the existing
mortgage of the subject tractor to Libra. In fact, when he was obtaining
Libra's consent to the sale, he volunteered to assume the remaining
balance of the mortgage debt of Wilfredo Dy which Libra undeniably
agreed to.
The payment of the check was actually intended to extinguish the
mortgage obligation so that the tractor could be released to the
petitioner. It was never intended nor could it be considered as payment
of the purchase price because the relationship between Libra and the
petitioner is not one of sale but still a mortgage. The clearing or
encashment of the check which produced the effect of payment
determined the full payment of the money obligation and the release of
the chattel mortgage. It was not determinative of the consummation of
the sale. The transaction between the brothers is distinct and apart
from the transaction between Libra and the petitioner. The contention,
therefore, that the consummation of the sale depended upon the
encashment of the check is untenable.
The sale of the subject tractor was consummated upon the execution
of the public instrument on September 4, 1979. At this time
constructive delivery was already effected. Hence, the subject tractor
was no longer owned by Wilfredo Dy when it was levied upon by the
sheriff in December, 1979. Well settled is the rule that only properties
unquestionably owned by the judgment debtor and which are not
exempt by law from execution should be levied upon or sought to be
levied upon. For the power of the court in the execution of its judgment
extends only over properties belonging to the judgment debtor.
(Consolidated Bank and Trust Corp. v. Court of Appeals, G.R. No.
78771, January 23, 1991).
The respondents further claim that at that time the sheriff levied on the
tractor and took legal custody thereof no one ever protested or filed a
third party claim.
It is inconsequential whether a third party claim has been filed or not by
the petitioner during the time the sheriff levied on the subject tractor. A
person other than the judgment debtor who claims ownership or right
over levied properties is not precluded, however, from taking other
legal remedies to prosecute his claim. (Consolidated Bank and Trust
Corp. v. Court of Appeals, supra) This is precisely what the petitioner
did when he filed the action for replevin with the RTC.
Anent the second and third issues raised, the Court accords great
respect and weight to the findings of fact of the trial
court.1âwphi1 There is no sufficient evidence to show that the sale of
the tractor was in fraud of Wilfredo and creditors. While it is true that
Wilfredo and Perfecto are brothers, this fact alone does not give rise to
the presumption that the sale was fraudulent. Relationship is not a
badge of fraud (Goquiolay v. Sycip, 9 SCRA 663 [1963]). Moreover,
fraud can not be presumed; it must be established by clear convincing
evidence.

We agree with the trial court's findings that the actuations of GELAC
Trading were indeed violative of the provisions on human relations. As
found by the trial court, GELAC knew very well of the transfer of the
property to the petitioners on July 14, 1980 when it received summons
based on the complaint for replevin filed with the RTC by the petitioner.
Notwithstanding said summons, it continued to sell the subject tractor
to one of its stockholders on August 2, 1980.

WHEREFORE, the petition is hereby GRANTED. The decision of the

Court of Appeals promulgated on March 23, 1990 is SET ASIDE and
the decision of the Regional Trial Court dated April 8, 1988 is
REINSTATED.

SO ORDERED.
 7. Effectivity as against Third Persons

a. Assignment of credits and Partnership having a capital of

P3,000.00 or more – Articles 1625 and 1772 of the Civil
Code

Article 1625. An assignment of a credit, right or action shall

produce no effect as against third persons, unless it appears in a
public instrument, or the instrument is recorded in the Registry of
Property in case the assignment involves real property. (1526)

Article 1772. Every contract of partnership having a capital of

three thousand pesos or more, in money or property, shall appear
in a public instrument, which must be recorded in the Office of the
Securities and Exchange Commission.

Failure to comply with the requirements of the preceding

paragraph shall not affect the liability of the partnership and the
members thereof to third persons. (n)

b. Marriage settlements – Article 77 of the Family Code

Art. 77. The marriage settlements and any modification thereof

shall be in writing, signed by the parties and executed before the
celebration of the marriage. They shall not prejudice third persons
unless they are registered in the local civil registry where the
marriage contract is recorded as well as in the proper registries of
properties. (122a)
G.R. No. 77502 January 15, 1988
EMILIA B. SANTIAGO, plaintiff-appellant,
vs.
PIONEER SAVINGS AND LOAN BANK, ET. AL., defendants-
appellees.
MELENCIO-HERRERA, J.:
An appeal certified by the Court of Appeals to this Tribunal for
determination since only a question of law is involved.
The facts are not controverted.
Plaintiff-appellant, Emilia P. Santiago, is the registered owner of a
parcel of land situated at Polo, Valenzuela, Metro Manila, with an area
of approximately 39,007 square meters, covered by T.C.T. No. B-
41669 (briefly, the Title) of the Register of Deeds of Caloocan City
(hereinafter, simply the Disputed Property).
On 7 April 1983, plaintiff-appellant executed a Special Power of
Attorney in favor of Construction Resources Corporation of the
Philippines (CRCP, for short) authorizing and empowering CRCP:
1. To borrow money and make, execute, sign and
deliver mortgages of real estate now owned by me
and standing in my name and to make, sign,
execute and deliver any and all promissory notes
necessary in the premises.
2. For the purpose of these presents, or for the
purpose of securing the payment of any loan,
indebtedness or obligation which my attorney-in-
fact may obtain or contract with the bank, its
renewal, extension of payment of the whole or any
part thereof, said attorney-in-fact is hereby
authorized and empowered to transfer and convey
by way of mortgage in favor of the bank, ... (the
Disputed Property).
On 8 April 1983, CRCP executed a Real Estate Mortgage over the
Disputed Property in favor of FINASIA Investment and Finance
Corporation to secure a loan of P1 million. The mortgage contract
specifically provided that in the event of default in payment, the
mortgagee may immediately foreclose the mortgage judicially or
extrajudicially. The promissory note evidencing the indebtedness was
dated 4 March 1983.
The Special Power of Attorney executed by plaintiff-appellant in
CRCP's favor, the Real Estate Mortgage by CRCP in favor of FINASIA,
together with the Board Resolution dated 28 March 1983 authorizing
the CRCP President to sign for and on its behalf, were duly annotated
on the Title on 12 April 1983.
On 29 July 1983, FINASIA executed in favor of defendant-appellee,
Pioneer Savings & Loan Bank, Inc. (Defendant Bank, for brevity), an
"Outright Sale of Receivables without Recourse" including the
receivable of P610,752.59 from CRCP.
On 21 May 1984, FINASIA executed a "Supplemental Deed of
Assignment" in favor of Defendant Bank confirming and ratifying the
assignment in the latter's favor of the receivable of P610,752.59 from
CRCP and of the mortgage constituted by CRCP over the disputed
property.
On 12 July 1984, the aforesaid Supplemental Deed of Assignment was
inscribed on the Title.
CRCP failed to settle its obligation and Defendant Bank opted for
extrajudicial foreclosure of the mortgage. The notice of auction sale
was scheduled on 16 May 1985.
On 13 May 1985, on learning of the intended sale, plaintiff-appellant
filed before the Regional Trial Court of Valenzuela, Metro Manila,
Branch CLXXII, an action for declaration of nullity of the real estate
mortgage with an application for a Writ of Preliminary Injunction (Civil
Case No. 2231-V-55).
1
On 14 May 1985, the Trial Court issued a Temporary Restraining
Order enjoining the sale at public auction of the Disputed Property.
Basically, plaintiff-appellant claimed in her Complaint that she was not
aware of any real estate mortgage she had executed in favor of
Defendant Bank; that she had not authorized anyone to execute any
document for the extrajudicial foreclosure of the real estate mortgage
constituted on the Disputed Property and that since the notice of
Sheriffs sale did not include her as a party to the foreclosure
proceedings, it is not binding on her nor on her property.
Defendant Bank opposed the application for Preliminary Injunction and
asserted its right to extrajudicially foreclose the mortgage on the
Disputed Property based on recorded public documents.
During the hearing on the petition for Preliminary Injunction, plaintiff-
appellant, through counsel, admitted the due execution of plaintiff-
appellant's Special Power of Attorney in favor of CRCP, the Real
Estate Mortgage by CRCP to FINASIA, the Outright Sale of
Receivables by FINASIA to Defendant Bank, as well the Supplemental
Deed of Assignment by FINASIA to Defendant Bank.
On 30 May 1985, the Trial Court granted the Petition for Preliminary
Injunction enjoining the public auction sale of the mortgaged property
upon plaintiff-appellant's posting of a bond in the amount of
P100,000.00.
On 7 June 1985, Defendant Bank filed a Motion to Dismiss the main
case on the ground that the complaint did not state a cause of action
followed on 24 June 1985 with a Motion for Reconsideration of the
Order granting the Writ of Preliminary Injunction, both of which Motions
plaintiff-appellant opposed.
On 30 August 1985, the Trial Court reconsidered its Order of 30 May
1985, dissolved the Writ of Preliminary Injunction, and ordered the
dismissal of the case for lack of cause of action.
Plaintiff-appellant appealed to the Court of Appeals, which, as stated at
the outset, certified the case to us on a pure question of law.
In the meantime, with the dissolution of the Preliminary Injunction, it
appears that defendant Bank completed its extrajudicial foreclosure
and the Disputed Property was sold at public auction on January 1986,
after a re-publication of the notice of sale, since the first scheduled sale
was enjoined by the Trial Court.
Plaintiff-appellant maintains that:
I. The Lower Court erred in dismissing the
complaint and lifting the Preliminary Injunction by
relying solely on the admission of the counsel of
the plaintiff-appellant of certain documentary
exhibits presented by the counsel of the
defendant-appellee.
II. The Lower Court erred in relying on the case
of Wenceslao Vinzons Tan vs. Director of
Forestry which it qualifies as "on all fours with the
case at bar."
 III. The Lower Court erred in ignoring the pertinent case. The assignment was made in a public instrument and proper
8
doctrines in the Supreme Court cases cited by the recording in the Registry of Property was made. While notice may not
plaintiff-appellant in her Opposition to Motion to have been given to plaintiff-appellant personally, the publication of the
Dismiss. Notice of Sheriff's Sale, as required by law, is notice to the whole
world.
IV. The Lower Court erred in holding that notice of
the scheduled sale of the land sent to the agent The full-dress hearing that plaintiff-appellant prays for wherein she
(CRCP) is also Notice to the principal (Plaintiff intends to prove that she tried to contact the President of CRCP to
Appellant), the land owner. urge him to pay the mortgage loan, that she had failed to do so despite
several attempts; that she did not know that FINASIA had sold its
receivables including that of CRCP to Defendant Bank; and that she
and prays that she be given "a real day in Court" so that she may
was not informed by CRCP of the scheduled foreclosure sale will not
testify and give her side of the case.
tilt the scales of justice in her favor in the face of incontrovertible
documentary evidence before the Court.
Upon the factual and legal context, the errors assigned are without
merit.
Plaintiff-appellant's recourse is against CRCP, specially considering
her allegation that the latter had failed to observe their agreement.
It is true that the determination of the sufficiency of a cause of action
must be limited to the facts alleged in the Complaint and no other
2 WHEREFORE, the Order appealed from is hereby AFFIRMED, with
should be considered. In this case, however, a hearing was held and
costs against plaintiff-appellant.
documentary evidence was presented, not on the Motion to Dismiss
but on the question of granting or denying plaintiff-appellant's
application for a Writ of Preliminary Injunction, Counsel for plaintiff- SO ORDERED.
appellant admitted an the evidence presented. That being so, the Trial
Court committed no reversible error in considering said evidence in the
resolution of the Motion to Dismiss.

Furthermore, "even if the complaint stated a valid

cause of action, a motion to dismiss for
insufficiency of cause of action will be granted if
documentary evidence admitted by stipulation
disclosing facts sufficient to defeat the claim
enabled the court to go beyond disclosure in the
complaint" (LOCALS No. 1470, No. 1469, and No.
1512 of the International Longshoremen's
Association vs. Southern Pacific Co., 6 Fed. Rules
Service, p. 107; U.S. Circuit Court of Appeals, Fifth
Circuit, Dec. 7, 1952; 131 F. 2d 605). Thus,
although the evidence of the parties were
presented on the question of granting or denying
petitioner-appellant's application for a writ of
preliminary injunction, the trial court correctly
applied said evidence in the resolution of the
3
motion to dismiss. ...

While, as contended by plaintiff-appellant, some aspects of this case

differ from those in Tan, the doctrinal ruling therein, as quoted above,
is squarely applicable to the case at bar. The cases which plaintiff-
appellant cites express the general rule when there is no "documentary
evidence admitted by stipulation disclosing facts sufficient to defeat the
claim." Where, however, such evidence is before the Court and has
been stipulated upon, a Court can go "beyond the disclosure in the
4
complaint."

Moreover, the rule is explicit that "rules of procedure are not to be

applied in a very rigid, technical sense; rules of procedure are used
5
only to help secure substantial justice."

The evidence on record sufficiently defeats plaintiff-appellant's claim

for relief from extrajudicial foreclosure. Her Special Power of Attorney
in favor of CRCP specifically included the authority to mortgage the
Disputed Property. The Real Estate Mortgage in favor of FINASIA
explicitly authorized foreclosure in the event of default. Indeed,
foreclosure is but a necessary consequence of non-payment of a
mortgage indebtedness. Plaintiff-appellant, therefore, cannot rightfully
claim that FINASIA, as the assignee of the mortgagee, cannot
extrajudicially foreclose the mortgaged property. A mortgage directly
and immediately subjects the property upon which it is imposed to the
6
fulfillment of the obligation for whose security it was constituted.

The assignment of receivables made by the original mortgagee,

FINASIA, to Defendant Bank was valid, since a mortgage credit may
be alienated or assigned to a third person, in whole or in part, with the
7
formalities required by law. Said formalities were complied with in this
c. Affidavit
d. Special Power of Attorney – Article 1878 of the Civil Code
Article 1878. Special powers of attorney are necessary in
the following cases:
(1) To make such payments as are not usually considered as
acts of administration;
(2) To effect novations which put an end to obligations
already in existence at the time the agency was constituted;
(3) To compromise, to submit questions to arbitration, to
renounce the right to appeal from a judgment, to waive
objections to the venue of an action or to abandon a
prescription already acquired;
(4) To waive any obligation gratuitously;
(5) To enter into any contract by which the ownership of an
immovable is transmitted or acquired either gratuitously or
for a valuable consideration;
(6) To make gifts, except customary ones for charity or those
made to employees in the business managed by the agent;
(7) To loan or borrow money, unless the latter act be urgent
and indispensable for the preservation of the things which
are under administration;
(8) To lease any real property to another person for more
than one year;
(9) To bind the principal to render some service without
compensation;
(10) To bind the principal in a contract of partnership;
(11) To obligate the principal as a guarantor or surety;
(12) To create or convey real rights over immovable
property;
(13) To accept or repudiate an inheritance;
(14) To ratify or recognize obligations contracted before the
agency;
(15) Any other act of strict dominion. (n)
e. Last Will and Testament
i. Notarial Will – Article 805 and 806 of the Civil
Code
Article 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (n)
Article 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The notary
public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court. (n)
ii. Holographic Will – Article 810 to 814 of the Civil
Code
Article 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed. (678, 688a)
Article 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to. (619a)
Article 812. In holographic wills, the dispositions of the
testator written below his signature must be dated and
signed by him in order to make them valid as testamentary
dispositions. (n)
Article 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
disposition has a signature and a date, such date validates
the dispositions preceding it, whatever be the time of prior
dispositions. (n)
Article 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will, the testator must authenticate
the same by his full signature. (n)
f. Release, Waiver and Quitclaim – Article 6 of the Civil Code
Article 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right
recognized by law. (4a)
g. Demand Letter
h. Preparatory to filing an ejectment case – Rule 70 of the
Rules of Court
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
Section 1. Who may institute proceedings, and when. –
Subject to the provisions of the next succeeding section, a
person deprived of the possession of any land or building by
force, intimidation, threat, strategy, or stealth, or a lessor,
vendor, vendee, or other person against whom the
possession of any landor building is unlawfully withheld after
the expiration or termination of the right to hold possession,
by virtue of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor,
vendee, or other person, may, at any time within one (1) year
after such unlawful deprivation or withholding of possession,
bring an action in the proper Municipal Trial Court against
the person or persons unlawfully withholding or depriving of
possession, or any person or persons claiming under them,
for the restitution of such possession, together with damages
and costs. (1a)
Section 2. Lessor to proceed against lessee only after
demand. – Unless otherwise stipulated, such action by the
lessor shall be commenced only after demand to pay or
comply with the conditions of the lease and to vacate is
made upon the lessee, or by serving written notice of such
demand upon the person found on the premises, or by
posting such notice on the premises if no person be found
thereon, and the
lessee fails to comply therewith after fifteen (15) days in the
case of land or five (5) days in the case of buildings. (2a)
Section 3. Summary procedure. – Except in cases covered
by the agricultural tenancy laws or when the law otherwise
expressly provides, all actions for forcible entry and unlawful
detainer, irrespective of the amount of damages or unpaid
rentals sought to be recovered, shall be governed by the
summary procedure hereunder provided. (n)
Section 4. Pleadings allowed. – The only pleadings allowed
to be filed are the complaint, compulsory counterclaim and
cross-claim pleaded in the answer, and the answers thereto.
All pleadings shall be verified. (3a, RSP)
Section 5. Action on complaint. – The court may, from an
examination of the allegations in the complaint and such
evidence as may be attached thereto, dismiss the case
outright on any of the grounds for the dismissal of a civil
action which are apparent therein. If no ground for dismissal
is found, it shall forthwith issue summons. (n)
Section 6. Answer. – Within ten (10) days from service of
summons, the defendant shall file his answer to the
complaint and serve a copy thereof on the plaintiff.
Affirmative and negative defenses not pleaded therein shall
be deemed waived, except lack of jurisdiction over the
subject matter. Cross-claims and compulsory counterclaims
not asserted in the answer shall be considered barred. The
answer to counterclaims or cross-claims shall be served and
filed within ten (10) days from service of the answer in which
they are pleaded. (5, RSP)
Section 7. Effect of failure to answer. – Should the defendant
fail to answer the complaint within the period above
provided, the court, motu proprio or on motion of the plaintiff,
shall render judgment as may be warranted by the facts
alleged in the complaint and limited to what is prayed for
therein. The court may in its discretion reduce the amount of
damages and attorney’s fees claimed for being excessive or
otherwise unconscionable, without prejudice to the
applicability of section 3 (c), Rule 9 if there are two or more
defendants. (6, RSP)
Section 8. Preliminary conference; appearance of parties. –
Not later than thirty (30) days after the last answer is filed, a
preliminary conference shall be held. The provisions of Rule
18 on pre-trial shall be applicable to the preliminary
conference unless inconsistent with the provisions of this
Rule.
The failure of the plaintiff to appear in the preliminary
conference shall be cause for the dismissal of his complaint.
The defendant who appears in the absence of the plaintiff
shall be entitled to judgment on his counterclaim in
accordance with the next preceding section. All cross-claims
shall be dismissed. (7, RSP)
If a sole defendant shall fail to appear, the plaintiff shall
likewise be entitled to judgment in accordance with the next
preceding section. This procedure shall not apply where one
of two or more defendants sued under a common cause of
action who had pleaded a common defense shall appear at
the preliminary conference.
No postponement of the preliminary conference shall be
granted except for highly meritorious grounds and without
prejudice to such sanctions as the court in the exercise of
sound discretion may impose on the movant. (n)
Section 9. Record of preliminary conference. – Within five (5)
days after the termination of the preliminary conference, the
court shall issue an order stating the matters taken up
therein, including but not limited to:
1. Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the parties;
3. Whether, on the basis of the pleadings and the
stipulations and admissions made by the parties, judgment
may be rendered without the need of further proceedings, in
which event the judgment shall be rendered within thirty (30)
days from issuance of the order;
4. A clear specification of material facts which remain
controverted; and
5. Such other matters intended to expedite the disposition of
the case. (8, RSP)
Section 10. Submission of affidavits and position papers. –
Within ten (10) days from receipt of the order mentioned in
the next preceding section, the parties shall submit the
affidavits of their witnesses and other evidence on the factual
issues defined in the order, together with their position
papers setting forth the law and the facts relied upon by
them. (9, RSP)
Section 11. Period for rendition of judgment. – Within thirty
(30) days after receipt of the affidavits and position papers,
or the expiration of the period for filing the same, the court
shall render judgment.
However, should the court find it necessary to clarify certain
material facts, it may, during the said period, issue an order
specifying the matters to be clarified, and require the parties
to submit affidavits or other evidence on the said matters
within ten (10) days from receipt of said order. Judgment
shall be rendered within fifteen (15) days after the receipt of
the last affidavit or the expiration of the period for filing the
same.
The court shall not resort to the foregoing procedure just to
gain time for the rendition of the judgment. (n)
Section 12. Referral for conciliation. – Cases requiring
referral for conciliation, where there is no showing of
compliance with such requirement, shall be dismissed
without prejudice, and may be revived only after that
requirement shall have been complied with. (18a, RSP)
Section 13. Prohibited pleadings and motions. – The
following petitions, motions, or pleadings shall not be
allowed:
1. Motion to dismiss the complaint except on the ground of
lack of jurisdiction over the subject matter, or failure to
comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment,
or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or
any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against
any interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions. (19a, RSP)
Section 14. Affidavits. – The affidavits required to be
submitted under this Rule shall state only facts of direct
personal knowledge of the affiants which are admissible in
evidence, and shall show their competence to testify to the
matters stated therein.
A violation of this requirement may subject the party or the
counsel who submits the same to disciplinary action, and
shall be cause to expunge the inadmissible affidavit or
portion thereof from the record. (20, RSP)
Section 15. Preliminary injunction. – The court may grant
preliminary injunction, in accordance with the provisions of
Rule 58 hereof, to prevent the defendant from committing
further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible
entry or unlawful detainer may, within five (5) days from the
filing of the complaint, present a motion in the action for
forcible entry or unlawful detainer for the issuance of a writ of
preliminary mandatory injunction to restore him in his
possession.
The court shall decide the motion within thirty (30) days from
the filing thereof. (3a)
Section 16. Resolving defense of ownership. – When the
defendant raises the defense of ownership in his pleadings
and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall
be resolved only to determine the issue of possession. (4a)
Section 17. Judgment. – If after trial the court finds that the
allegations of the complaint are true, it shall render judgment
in favor of the plaintiff for the restitution of the premises, the
sum justly due as arrears of rent or as reasonable
compensation for the use and occupation of the premises,
attorney’s fees and costs. If it finds that said allegations are
not true, it shall render judgment for the defendant to recover
his costs. If a counterclaim is established, the court shall
render judgment for the sum found in arrears from either
party and award costs as justice requires. (6a)
Section 18. Judgment conclusive only on possession; not
conclusive in actions involving title or ownership. – The
judgment rendered in an action for forcible entry or detainer
shall be conclusive with respect to the possession only and
shall in no wise bind the title or affect the ownership of the
land or building. Such judgment shall not bar an action
between the same parties respecting title to the land or
building.
The judgment or final order shall be appealable to the
appropriate Regional Trial Court which shall decide the same
on the basis of the entire record of the proceedings had in
the court of origin and such memoranda and/or briefs as may
be submitted by the parties or required by the Regional Trial
Court. (7a)
Section 19. Immediate execution of judgment; how to stay
same. – If judgment is rendered against the defendant,
execution shall issue immediately upon motion, unless an
appeal has been perfected and the defendant to stay
execution files a sufficient supersedeas bond, approved by
the Municipal Trial Court and executed in favor of the plaintiff
to pay the rents, damages, and costs accruing down to the
time of the judgment appealed from, and unless, during the
pendency of the appeal, he deposits with the appellate court
the amount of rent due from time to time under the contract,
if any, as determined by the judgment of the Municipal Trial
Court. In the absence of a contract, he shall deposit with the
Regional Trial Court the reasonable value of the use and
occupation of the premises for the preceding month or period
at the rate determined by the judgment of the lower court on
or before the tenth day of each succeeding month or period.
The supersedeas bond shall be transmitted by the Municipal
Trial Court, with the other papers, to the clerk of the Regional
Trial Court to which the action is appealed.
All amounts so paid to the appellate court shall be deposited
with said court or authorized government depositary bank,
and shall be held there until the final disposition of the
appeal, unless the court, by agreement of the interested
parties, or in the absence of reasonable grounds of
opposition to a motion to withdraw, or for justifiable reasons,
shall decree otherwise. Should the defendant fail to make
the payments above prescribed from time to time during the
pendency of the appeal, the appellate court, upon motion of
the plaintiff, and upon proof of such failure, shall order the
execution of the judgment appealed from with respect to the
restoration of possession, but such execution shall not be a
bar to the appeal taking its course until the final disposition
thereof on the merits.
After the case is decided by the Regional Trial Court, any
money paid to the court by the defendant for purposes of the
stay of execution shall be disposed of in accordance with the
provisions of the judgment of the Regional Trial Court. In any
case wherein it appears that the defendant has been
deprived of the lawful possession of land or building pending
the appeal by virtue of the execution of the judgment of the
Municipal Trial Court, damages for such deprivation of
possession and restoration of possession may be allowed
the defendant in the judgment of the Regional Trial Court
disposing of
the appeal. (8a)
Section 20. Preliminary mandatory injunction in case of
appeal. – Upon motion of the plaintiff, within ten (10) days
from the perfection of the appeal to the Regional Trial Court,
the latter may issue a writ of preliminary mandatory
injunction to restore the plaintiff in possession if the court is
satisfied that the defendant’s appeal is frivolous or dilatory,
or that the appeal of the plaintiff is prima facie meritorious.
(9a)
Section 21. Immediate execution on appeal to Court of
Appeals or Supreme Court. – The judgment of the Regional
Trial Court against the defendant shall be immediately
executory, without prejudice to a further appeal that may be
taken therefrom. (10a)
i. Preparatory to filing a complaint for violation of Batas
Pambansa Blg. 22 or the Bouncing Checks Law- Rule 7 to 9;
Sec. 11, Rule 13 of the Rules of Court
RULE 7
PARTS AND CONTENTS OF A PLEADING
Section 1. Caption. – The caption sets forth the name of the
court, the title of the action, and the docket number if
assigned.
The title of the action indicates the names of the parties.
They shall all be named in the original complaint or petition;
but in subsequent pleadings, it shall be sufficient if the name
of the first party on each side be stated with an appropriate
indication when there are other parties.
Their respective participation in the case shall be indicated.
(1)
Section 2. The body. – The body of the pleading sets forth its
designation, the allegations of the party’s claims or defenses,
the relief prayed for, and the date of the pleading.
(a) Paragraphs. – The allegations in the body of a pleading
shall be divided into paragraphs so numbered as to be
readily identified, each of which shall contain a statement of
a single set of circumstances so far as that can be done with
convenience. A paragraph may be referred to by its number
in all succeeding pleadings.
(b) Headings. – When two or more causes of action are
joined, the statement of the first shall be prefaced by the
words “first cause of action,” of the second by “second cause
of action,” and so on for the others.
When one or more paragraphs in the answer are addressed
to one of several causes of action in the complaint, they shall
be prefaced by the words “answer to the first cause of
action”
or “answer to the second cause of action” and so on; and
when one or more paragraphs of the answer are addressed
to several causes of action, they shall be prefaced by words
to that effect.

(c) Relief. – The pleading shall specify the relief sought, but it
may add a general prayer for such further or other relief as
may be deemed just or equitable.
(d) Date. – Every pleading shall be dated. (4)
Section 3. Signature and address. – (a) Every pleading [and
other written submissions to the court] must be signed by the
party or counsel representing him or her.
(b) The signature of counsel constitutes a certificate by him
or her that he or she has read the pleading and document;
that to the best of his or her knowledge, information, and
belief, formed after an inquiry reasonable under the
circumstances:
(1) It is not being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation;
(2) The claims, defenses, and other legal contentions are
warranted by existing law or jurisprudence, or by a non-
frivolous argument for extending, modifying, or reversing
existing jurisprudence;
(3) The factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after availment of the modes of discovery under these
[R]ules; and
(4) The denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably
based on belief or a lack of information.
(c) If the court determines, on motion or motu proprio and
after notice and hearing, that this [R]ule has been violated, it
may impose an appropriate sanction or refer such violation
to the proper office for disciplinary action, on any attorney,
law firm, or party that violated the rule, or is responsible for
the violation. Absent exceptional circumstances, a law firm
shall be held jointly and severally liable for a violation
committed by its partner, associate, or employee. The
sanction may include, but shall not be limited to, non-
monetary directive or sanction; an order to pay a penalty in
court; or, if imposed on motion and warranted for effective
deterrence, an order directing payment to the movant of part
or all of the reasonable attorney’s fees and other expenses
directly resulting from the violation, including attorney’s fees
for the filing of the motion for sanction. The lawyer or law firm
cannot pass on the monetary penalty to the client. (3a)
Section 4. Verification. – Except when otherwise specifically
required by law or rule, pleadings need not be under oath or
verified.
A pleading is verified by an affidavit of an affiant duly
authorized to sign said verification. The authorization of the
affiant to act on behalf of a party, whether in the form of a
secretary’s certificate or a special power of attorney, should
be attached to the pleading, and shall allege the following
attestations:
(a) The allegations in the pleading are true and correct
based on his or her personal knowledge, or based on
authentic documents;
(b) The pleading is not filed to harass, cause unnecessary
delay, or needlessly increase the cost of litigation; and
(c) The factual allegations therein have evidentiary support
or, if specifically so identified, will likewise have evidentiary
support after a reasonable opportunity for discovery.
The signature of the affiant shall further serve as a
certification of the truthfulness of the allegations in the
pleading.
A pleading required to be verified that contains a verification
based on “information and belief,” or upon “knowledge,
information and belief,” or lacks a proper verification, shall be
treated as an unsigned pleading. (4a)
Section 5. Certification against forum shopping. – The
plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for
relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he [or she] has not
theretofore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-
judicial agency and, to the best of his [or her] knowledge, no
such other action or claim is pending therein; (b) if there is
such other pending action or claim, a complete statement of
the present status thereof; and (c) if he
[or she] should thereafter learn that the same or similar
action or claim has been filed or is pending, he [or she] shall
report that fact within five (5) calendar days therefrom to the
court wherein his [or her] foresaid complaint or initiatory
pleading has been filed.
The authorization of the affiant to act on behalf of a party,
whether in the form of a secretary’s certificate or a special
power of attorney, should be attached to the pleading.
Failure to comply with the foregoing requirements shall not
be curable by mere amendment of the complaint or other
initiatory pleading but shall be cause for the dismissal of the
case without prejudice, unless otherwise provided, upon
motion and after hearing. The submission of a false
certification or non-compliance with any of the undertakings
therein shall constitute indirect contempt of court, without
prejudice to the corresponding administrative and criminal
actions. If the acts of the party or his [or her] counsel clearly
constitute willful and deliberate forum shopping, the same
shall be ground for summary dismissal with prejudice and
shall constitute direct contempt, as well as a cause for
administrative sanctions. (5a)
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. (n)
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)
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)
Section 3. Conditions precedent. – In any pleading, a
general averment of the performance or occurrence of all
conditions precedent shall be sufficient. (3)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
RULE 9
EFFECT OF FAILURE TO PLEAD
Section 1. Defenses and objections not pleaded. – Defenses
and objections not pleaded either in a motion to dismiss or in
the answer are deemed waived. However, when it appears
from the pleadings or the evidence on record that the court
has no jurisdiction over the subject matter, that there is
another action pending between the same parties 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.
(1)
Section 2. Compulsory counterclaim, or cross-claim, not set
up barred. – A compulsory counterclaim, or a cross-claim,
not set up shall be barred. (2)
Section 3. Default; [d]eclaration of. – If the defending party
fails to answer within the time allowed therefor, the court
shall, upon motion of the claiming party with notice to the
defending party, and proof of such failure, declare the
defending party in default. Thereupon, the court shall
proceed to render judgment granting the claimant such relief
as his or her pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence. Such
reception of evidence may be delegated to the clerk of court.
(a) Effect of order of default. – A party in default shall be
entitled to notice[s] of subsequent proceedings but shall not
to take part in the trial.
(b) Relief from order of default. – A party declared in default
may at any time after notice thereof and before judgment, file
a motion under oath to set aside the order of default upon
proper showing that his or her failure to answer was due to
fraud, accident, mistake or excusable negligence and that he
or she has a meritorious defense. In such case, the order of
default may be set aside on such terms and conditions as
the judge may impose in the interest of
justice.
(c) Effect of partial default. – When a pleading asserting a
claim states a common cause of action against several
defending parties, some of whom answer and the others fail
to do so, the court shall try the case against all upon the
answers thus filed and render judgment upon the evidence
presented.
(d) Extent of relief to be awarded. – A judgment rendered
against a party in default shall [neither] exceed the amount
or be different in kind from that prayed for nor award
unliquidated
damages.
(e) Where no defaults allowed. – If the defending party in
action for annulment or declaration of nullity of marriage or
for legal separation fails to answer, the court shall order the
Solicitor General or his or her deputized public prosecutor, to
investigate whether or not a collusion between the parties
 exists, and if there is no collusion, to intervene for the State
in order to see to it that the evidence submitted is not
fabricated. (3a)
j. Sec. 139 of Republic Act No. 7160 or the, Local Government
Code of 1991
SECTION 139. Professional Tax. – (a) The province may
levy an annual professional tax on each person engaged in
the exercise or practice of his profession requiring
government examination at such amount and reasonable
classification as the sangguniang panlalawigan may
determine but shall in no case exceed Three hundred pesos
(P300.00).
(b) Every person legally authorized to practice his profession
shall pay the professional tax to the province where he
practices his profession or where he maintains his principal
office in case he practices his profession in several places:
Provided, however, That such person who has paid the
corresponding professional tax shall be entitled to practice
his profession in any part of the Philippines without being
subjected to any other national or local tax, license, or fee for
the practice of such profession.
(c) Any individual or corporation employing a person subject
to professional tax shall require payment by that person of
the tax on his profession before employment and annually
thereafter.
(d) The professional tax shall be payable annually, on or
before the thirty-first (31st) day of January. Any person first
beginning to practice a profession after the month of January
must, however, pay the full tax before engaging therein. A
line of profession does not become exempt even if
conducted with some other profession for which the tax has
been paid. Professionals exclusively employed in the
government shall be exempt from the payment of this tax.
(e) Any person subject to the professional tax shall write in
deeds, receipts, prescriptions, reports, books of account,
plans and designs, surveys and maps, as the case may be,
the number of the official receipt issued to him.
k. Bar Matter No. 287, SC En Banc Resolution dated July 9,
1985, quoted in OCA Circular No. 10-85, July 24, 1985
Bar Matter No. 287, SC En Banc Resolution dated July 9,
1985, quoted in OCA Circular No. 10-85, July 24, 1985
CIRCULAR NO. 10
[1985]
TO: INTERMEDIATE APPELLATE COURT,
SANDIGANBAYAN, COURT OF TAX APPEALS,
REGIONAL TRIAL COURTS, METROPOLITAN TRIAL
COURTS, MUNICIPAL TRIAL COURTS IN CITIES,
MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT
TRIAL COURTS
SUBJECT: INCLUSION OF NUMBER AND DATE OF
OFFICIAL RECEIPT OF PAYMENT OF ANNUAL
MEMBERSHIP DUES TO THE INTEGRATED BAR OF THE
PHILIPPINES, IN ALL PLEADINGS, MOTIONS AND
PAPERS TO BE FILED IN COURT.
For the information and guidance of all concerned, quoted
hereunder is the Resolution En Banc of this Court dated July
9, 1985 in Bar Matter No. 287, to wit:
“Effective August 1, 1985, all lawyers shall indicate in all
pleadings, motions and papers signed and filed by them in
any ourt in the Philippines, the number and date of their
official receipt indicating payment of their annual
membership dues to the Integrated Bar of the Philippines for
the current year: Provided, however, That such official
receipt number and date for any year may be availed of and
indicated in all such pleadings, motions and papers filed by
them in Court up to the end of the month of February of the
next succeeding year.” Strict compliance herewith is hereby
enjoined.
July 24, 1985.
[Sgd.] ARTURO B. BUENA
Acting Court Administrator
l. Bar Matter No. 1132, SC En Banc Resolution dated 12
November 2002
[B.M. No. 1132.November 12, 2002]
RE: REQUEST TO REQUIRE LAWYERS TO INDICATE IN
THE PLEADING THEIR NUMBER IN THE ROLL OF
ATTYS.
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this
Court dated 12 NOV 2002.
Bar Matter No. 1132 (Re: Request to Require Lawyers to
Indicate in the Pleading their Number in the Roll of
Attorneys.)
The Court Resolved, upon recommendation of the Office of
the Bar Confidant, to GRANT the request of the Board of
Governors of the Integrated Bar of the Philippines and the
Sangguniang Panlalawigan of Ilocos Norte to require all
lawyers to indicate their Roll of Attorneys Number in all
papers or pleadings submitted to the various judicial or
quasi-judicial bodies in addition to the requirement of
indicating the current Professional Tax Receipt (PTR) and
the IBP Official Receipt or Life Member Number.
Strict compliance herewith is hereby enjoined effective
immediately. Austria-Martinez, J., is on leave.
Very truly yours,
LUZVIMINDA D. PUNO
Clerk of Court
(Sgd.) MA. LUISA D. VILLARAMA
Asst. Clerk of Court
m. A.M. No. 07-6-5-SC, SC En Banc Resolution dated July 20,
2007, Statement of Contact Details of the Parties or their
Counsel in all Pleadings or Papers filed with the Supreme
Court
*Wala sa Google
n. Bar Matter No. 1922, SC En Banc Resolution dated June 3,
2008, Recommendation of the Mandatory Continuing Legal
Education (MCLE) Board to Indicate in All Pleadings Filed
the Courts the Counsel’s MCLE Certificate of Compliance or
Certificate of Exemption
B.M. No. 1922 June 3, 2008
RE. NUMBER AND DATE OF MCLE CERTIFICATE OF
COMPLETION/EXEMPTION REQUIRED IN ALL
PLEADINGS/MOTIONS.
Sirs/Mesdames:
 Quoted hereunder, for your information is a resolution of the
Court En Banc dated June 3, 2008
"Bar Matter No. 1922. – Re: Recommendation of the
Mandatory Continuing Legal Education (MCLE) Board to
Indicate in All Pleadings Filed with the Courts the Counsel’s
MCLE Certificate of Compliance or Certificate of Exemption.
– The Court Resolved to NOTE the Letter, dated May 2,
2008, of Associate Justice Antonio Eduardo B. Nachura,
Chairperson, Committee on Legal Education and Bar
Matters, informing the Court of the diminishing interest of the
members of the Bar in the MCLE requirement program.
The Court further Resolved, upon the recommendation of the
Committee on Legal Education and Bar Matters,
to REQUIRE practicing members of the bar to INDICATE in
all pleadings filed before the courts or quasi-judicial bodies,
the number and date of issue of their MCLE Certificate of
Compliance or Certificate of Exemption, as may be
applicable, for the immediately preceding compliance
period. Failure to disclose the required information
would cause the dismissal of the case and the
expunction of the pleadings from the records.
The New Rule shall take effect sixty (60) days after its
publication in a newspaper of general circulation." Caprio-
Morales Velasco, Jr., Nachura, JJ., on official leave.
(adv216a)
o. A.M. No. 05-11-07-CTA, SC En Banc Resolution dated
November 3, 2005, Sec. 6, Rule 6 of the Revised Rules of
the Court of Tax Appeals
SEC. 6. Entry of appearance. – An attorney may enter his
appearance by signing the initial pleading. An attorney may
later enter his appearance only by filing an entry of
appearance with the written conformity of his client.
The initial pleading or entry of appearance shall show:
(1) The attorney’s specific address which must not be a Post
Office Box number;
(2) His Roll of Attorney’s Number;
(3) The date and number of his current membership due in
the Integrated Bar of the Philippines (IBP) per Official
Receipt, or Lifetime Member Number;
(4) Current Professional Tax Receipt (PTR) number together
with date and place of issuance; and
(5) MCLE certificate number and date of issue, unless
exempt.
The attorney or party entering his appearance shall serve a
copy of the entry of appearance upon the opposing party. An
attorney who appears in open court without previously
having filed his written appearance must give his business
address to the Clerk of Court and file his written appearance
within forty-eight hours from such open court appearance.
An attorney or party who has filed his appearance and who
changes his address of record shall notify the Clerk of Court
and the adverse party of such change of address, and a
separate notice of such change of address shall be filed for
each additional case. (RCTA, Rule 10, sec. 1a)
p. Bar Matter No. 2012, February 10, 2009, Proposed Rule on
Mandatory Legal Aid Service for Practicing Lawyers
B.M. No. 2012 February 10, 2009
PROPOSED RULE ON MANDATORY LEGAL AID
SERVICE FOR PRACTICING LAWYERS
RESOLUTION
Acting on the Memorandum dated January 27, 2009 of
Justice Renato C. Corona re: Comment of the Integrated Bar
of the Philippines on our Suggested Revisions to the
Proposed Rule of Mandatory Legal Aid Service for Practicing
Lawyers, the Court Resolved to APPROVE the same.
This Resolution shall take effect on July 1, 2009 following
publication of the said Rule and its implementing regulations
in at least two (2) newpapers of general circulation.
February 10, 2009
RULE ON MANDATORY LEGAL AID SERVICE
SECTION 1. Title. - This Rule shall be known as "The Rule
on Mandatory Legal Aid Service."
SECTION 2. Purpose. - This Rule seeks to enhance the
duty of lawyers to society as agents of social change and to
the courts as officers thereof by helping improve access to
justice by the less privileged members of society and
expedite the resolution of cases involving them. Mandatory
free legal service by members of the bar and their active
support thereof will aid the efficient and effective
administration of justice especially in cases involving indigent
and pauper litigants.
SECTION 3. Scope. - This Rule shall govern the mandatory
requirement for practicing lawyers to render free legal aid
services in all cases (whether, civil, criminal or
administrative) involving indigent and pauper litigants where
the assistance of a lawyer is needed. It shall also govern the
duty of other members of the legal profession to support the
legal aid program of the Integrated Bar of the Philippines.
SECTION 4. Definition of Terms. - For purposes of this
Rule:
(a) Practicing lawyers are members of the Philippine Bar
who appear for and in behalf of parties in courts of law and
quasi-judicial agencies, including but not limited to the
National Labor Relations Commission, National Conciliation
and Mediation Board, Department of Labor and Employment
Regional Offices, Department of Agrarian Reform
Adjudication Board and National Commission for Indigenous
Peoples. The term "practicing lawyers" shall exclude:
(i) Government employees and incumbent elective officials
not allowed by law to practice;
(ii) Lawyers who by law are not allowed to appear in court;
(iii) Supervising lawyers of students enrolled in law student
practice in duly accredited legal clinics of law schools and
lawyers of non-governmental organizations (NGOs) and
peoples’ organizations (POs) like the Free Legal Assistance
Group who by the nature of their work already render free
legal aid to indigent and pauper litigants and
(iv) Lawyers not covered under subparagraphs (i) to (iii)
including those who are employed in the private sector but
do not appear for and in behalf of parties in courts of law and
quasi-judicial agencies.
(b) Indigent and pauper litigants are those defined under
Rule 141, Section 19 of the Rules of Court and Algura v. The
Local Government Unit of the City of Naga (G.R. No.150135,
30 October 2006, 506 SCRA 81);
(c) Legal aid cases are those actions, disputes, and
controversies that are criminal, civil and administrative in
nature in whatever stage wherein indigent and pauper
litigants need legal representation;
(d) Free legal aid services refer to appearance in court or
quasi-judicial body for and in behalf of an indigent or pauper
litigant and the preparation of pleadings or motions. It shall
also cover assistance by a practicing lawyer to indigent or
poor litigants in court-annexed mediation and in other modes
of alternative dispute resolution (ADR). Services rendered
when a practicing lawyer is appointed counsel de oficio shall
also be considered as free legal aid services and credited as
compliance under this Rule;
(e) Integrated Bar of the Philippines (IBP) is the official
national organization of lawyers in the country;
(f) National Committee on Legal Aid (NCLA) is the committee
of the IBP which is specifically tasked with handling legal aid
cases;
(g) Committee on Bar Discipline (CBD) is the committee of
the IBP which is specifically tasked with disciplining
members of the Bar;
(h) IBP Chapters are those chapters of the Integrated Bar of
the Philippines located in the different geographical areas of
the country as defined in Rule 139-A and
(i) Clerk of Court is the Clerk of Court of the court where the
practicing lawyer rendered free legal aid services. In the
case of quasi-judicial bodies, it refers to an officer holding an
equivalent or similar position.
The term shall also include an officer holding a similar
position in agencies exercising quasi-judicial functions, or a
responsible officer of an accredited PO or NGO, or an
accredited mediator who conducted the court-annexed
mediation proceeding.
SECTION 5. Requirements. -
(a) Every practicing lawyer is required to render a minimum
of sixty (60) hours of free legal aid services to indigent
litigants in a year. Said 60 hours shall be spread within a
period of twelve (12) months, with a minimum of five (5)
hours of free legal aid services each month. However, where
it is necessary for the practicing lawyer to render legal aid
service for more than five (5) hours in one month, the excess
hours may be credited to the said lawyer for the succeeding
periods.
For this purpose, a practicing lawyer shall coordinate with
the Clerk of Court for cases where he may render free legal
aid service. He may also coordinate with the IBP Legal Aid
Chairperson of the IBP Chapter to inquire about cases where
he may render free legal aid service. In this connection, the
IBP Legal Aid Chairperson of the IBP Chapter shall regularly
and actively coordinate with the Clerk of Court.
The practicing lawyer shall report compliance with the
requirement within ten (10) days of the last month of each
quarter of the year.
(b) A practicing lawyer shall be required to secure and obtain
a certificate from the Clerk of Court attesting to the number
of hours spent rendering free legal aid services in a case.
The certificate shall contain the following information:
(i) The case or cases where the legal aid service was
rendered, the party or parties in the said case(s) for whom
the service was rendered, the docket number of the said
case(s) and the date(s) the service was rendered.
(ii) The number of hours actually spent attending a hearing
or conducting trial on a particular case in the court or quasi-
judicial body.
(iii) The number of hours actually spent attending mediation,
conciliation or any other mode of ADR on a particular case.
(iv) A motion (except a motion for extension of time to file a
pleading or for postponement of hearing or conference) or
pleading filed on a particular case shall be considered as
one (1) hour of service.
The Clerk of Court shall issue the certificate in triplicate, one
(1) copy to be retained by the practicing lawyer, one (1) copy
to be retained by the Clerk of Court and one (1) copy to be
attached to the lawyer's compliance report.
(c) Said compliance report shall be submitted to the Legal
Aid Chairperson of the IBP Chapter within the court’s
jurisdiction. The Legal Aid Chairperson shall then be tasked
with immediately verifying the contents of the certificate with
the issuing Clerk of Court by comparing the copy of the
certificate attached to the compliance report with the copy
retained by the Clerk of Court.
(d) The IBP Chapter shall, after verification, issue a
compliance certificate to the concerned lawyer. The IBP
Chapter shall also submit the compliance reports to the IBP’s
NCLA for recording and documentation. The submission
shall be made within forty-five (45) days after the mandatory
submission of compliance reports by the practicing lawyers.
(e) Practicing lawyers shall indicate in all pleadings filed
before the courts or quasi-judicial bodies the number and
date of issue of their certificate of compliance for the
immediately preceding compliance period. Failure to disclose
the required information would cause the dismissal of the
case and the expunction of the pleadings from the records.
(f) Before the end of a particular year, lawyers covered by
the category under Section 4(a)(i) and (ii), shall fill up a form
prepared by the NCLA which states that, during that year,
they are employed with the government or incumbent
elective officials not allowed by law to practice or lawyers
who by law are not allowed to appear in court.
The form shall be sworn to and submitted to the IBP Chapter
or IBP National Office together with the payment of an
annual contribution of Two Thousand Pesos (P2,000). Said
contribution shall accrue to a special fund of the IBP for the
support of its legal aid program.
(g) Before the end of a particular year, lawyers covered by
the category under Section 4(a)(iii) shall secure a
certification from the director of the legal clinic or of the
concerned NGO or PO to the effect that, during that year,
they have served as supervising lawyers in a legal clinic or
actively participated in the NGO’s or PO’s free legal aid
activities. The certification shall be submitted to the IBP
Chapter or IBP National Office.
(h) Before the end of a particular year, lawyers covered by
the category under Section 4(a)(iv) shall fill up a form
prepared by the NCLA which states that, during that year,
they are neither practicing lawyers nor covered by Section
(4)(a)(i) to (iii). The form shall be sworn to and submitted to
the IBP Chapter or IBP National Office together with the
payment of an annual contribution of Four Thousand Pesos
(P4,000) by way of support for the efforts of practicing
lawyers who render mandatory free legal aid services. Said
contribution shall accrue to a special fund of the IBP for the
support of its legal aid program.
(i) Failure to pay the annual contribution shall subject the
lawyer to a penalty of Two Thousand Pesos (P2,000) for that
year which amount shall also accrue to the special fund for
the legal aid program of the IBP.
SECTION 6. NCLA. -
(a) The NCLA shall coordinate with the various legal aid
committees of the IBP local chapters for the proper handling
and accounting of legal aid cases which practicing lawyers
can represent.
(b) The NCLA shall monitor the activities of the Chapter of
the Legal Aid Office with respect to the coordination with
Clerks of Court on legal aid cases and the collation of
certificates submitted by practicing lawyers.
(c) The NCLA shall act as the national repository of records
in compliance with this Rule.
(d) The NCLA shall prepare the following forms: certificate to
be issued by the Clerk of Court and forms mentioned in
Section 5(e) and (g).
(e) The NCLA shall hold in trust, manage and utilize the
contributions and penalties that will be paid by lawyers
pursuant to this Rule to effectively carry out the provisions of
this Rule. For this purpose, it shall annually submit an
accounting to the IBP Board of Governors.
The accounting shall be included by the IBP in its report to
the Supreme Court in connection with its request for the
release of the subsidy for its legal aid program.
SECTION 7. Penalties. -
(a) At the end of every calendar year, any practicing lawyer
who fails to meet the minimum prescribed 60 hours of legal
aid service each year shall be required by the IBP, through
the NCLA, to explain why he was unable to render the
minimum prescribed number of hours. If no explanation has
been given or if the NCLA finds the explanation
unsatisfactory, the NCLA shall make a report and
recommendation to the IBP Board of Governors that the
erring lawyer be declared a member of the IBP who is not in
good standing. Upon approval of the NCLA’s
recommendation, the IBP Board of Governors shall declare
the erring lawyer as a member not in good standing. Notice
thereof shall be furnished the erring lawyer and the IBP
Chapter which submitted the lawyer’s compliance report or
the IBP Chapter where the lawyer is registered, in case he
did not submit a compliance report. The notice to the lawyer
shall include a directive to pay Four Thousand Pesos
(P4,000) penalty which shall accrue to the special fund for
the legal aid program of the IBP.
(b) The "not in good standing" declaration shall be effective
for a period of three (3) months from the receipt of the erring
lawyer of the notice from the IBP Board of Governors. During
the said period, the lawyer cannot appear in court or any
quasi-judicial body as counsel. Provided, however, that the
"not in good standing" status shall subsist even after the
lapse of the three-month period until and unless the penalty
shall have been paid.
(c) Any lawyer who fails to comply with his duties under this
Rule for at least three (3) consecutive years shall be the
subject of disciplinary proceedings to be instituted motu
proprio by the CBD. The said proceedings shall afford the
erring lawyer due process in accordance with the rules of the
CBD and Rule 139-B of the Rules of Court. If found
administratively liable, the penalty of suspension in the
practice of law for one (1) year shall be imposed upon him.
(d) Any lawyer who falsifies a certificate or any form required
to be submitted under this Rule or any contents thereof shall
be administratively charged with falsification and dishonesty
and shall be subject to disciplinary action by the CBD. This is
without prejudice to the filing of criminal charges against the
lawyer.
(e) The falsification of a certificate or any contents thereof by
any Clerk of Court or by any Chairperson of the Legal Aid
Committee of the IBP local chapter where the case is
pending or by the Director of a legal clinic or responsible
officer of an NGO or PO shall be a ground for an
administrative case against the said Clerk of Court or
Chairperson. This is without prejudice to the filing of the
criminal and administrative charges against the malfeasor.
SECTION 8. Credit for Mandatory Continuing Legal
Education (MCLE). - A lawyer who renders mandatory legal
aid service for the required number of hours in a year for the
three year-period covered by a compliance period under the
Rules on MCLE shall be credited the following: two (2) credit
units for legal ethics, two (2) credit units for trial and pretrial
skills, two (2) credit units for alternative dispute resolution,
four (4) credit units for legal writing and oral advocacy, four
(4) credit units for substantive and procedural laws and
jurisprudence and six (6) credit units for such subjects as
may be prescribed by the MCLE Committee under Section
2(9), Rule 2 of the Rules on MCLE.
A lawyer who renders mandatory legal aid service for the
required number of hours in a year for at least two
consecutive years within the three year-period covered by a
compliance period under the Rules on MCLE shall be
credited the following: one (1) credit unit for legal ethics, one
(1) credit unit for trial and pretrial skills, one (1) credit unit for
alternative dispute resolution, two (2) credit units for legal
writing and oral advocacy, two (2) credit units for substantive
and procedural laws and jurisprudence and three (3) credit
units for such subjects as may be prescribed by the MCLE
Committee under Section 2(g), Rule 2 of the Rules on
MCLE.
SECTION 9. Implementing Rules. - The IBP, through the
NCLA, is hereby given authority to recommend implementing
regulations in determining who are "practicing lawyers," what
constitute "legal aid cases" and what administrative
procedures and financial safeguards which may be
necessary and proper in the implementation of this rule may
be prescribed. It shall coordinate with the various legal
chapters in the crafting of the proposed implementing
regulations and, upon approval by the IBP Board of
Governors, the said implementing regulations shall be
transmitted to the Supreme Court for final approval.
SECTION 10. Effectivity. - This Rule and its implementing
rules shall take effect on July 1,2009 after they have been
published in two (2) newspapers of general circulation.
 shall have been made, "this interim period being deemed to
be at that time already a forbearance of credit" (Eastern
G.R. Nos. 147933-34 December 12, 2001
Shipping Lines Inc. v. Court of Appeals et al., 243 SCRA 78
[1994]; Keng Hua Paper Products Co., Inc. v. Court of
PUBLIC ESTATES AUTHORITY, petitioner, Appeals, 286 SCRA 257 [1998]; Crismina Garments Inc. v.
vs. Court of Appeals, G.R. No. 128721, March 9, 1999).
ELPIDIO S. UY, doing business under the name and style EDISON
DEVELOPMENT & CONSTRUCTION, AND THE COURT OF 3
SO ORDERED.
APPEALS, respondents.

Both petitioner and respondent filed petitions for review with the Court
YNARES-SANTIAGO, J.:
of Appeals. In CA-G.R. SP No. 59308, petitioner contested the
monetary awards given by the CIAC. On the other hand, respondent
This is a petition for review of the Joint Decision dated September 25, filed CA-G.R. SP No. 59849, arguing that the CIAC erred in awarding a
1 2
2000 and the Joint Resolution dated April 25, 2001 of the Court of reduced amount for equipment stand-by costs and for denying his
Appeals in the consolidated cases CA-G.R. SP Nos. 59308 and 59849. claims for additional costs for topsoil hauling and operating costs of
water trucks.
Petitioner Public Estates Authority is the government agency tasked by
the Bases Conversion Development Authority to develop the first-class The two petitions were consolidated. On September 25, 2000, the
memorial park known as the Heritage Park, located in Fort Bonifacio, Court of Appeals rendered the now assailed Joint Decision, dismissing
Taguig, Metro Manila. On November 20, 1996, petitioner executed with the petitions, to wit:
respondent Elpidio S. Uy, doing business under the name and style
Edison Development & Construction, a Landscaping and Construction
WHEREFORE, premises considered, the petitions in CA-
Agreement, whereby respondent undertook to perform all landscaping
G.R. SP No. 59308, entitled "Public Estates Authority v.
works on the 105-hectare Heritage Park. The Agreement stipulated
Elpidio S. Uy, doing business under the name and style of
that the completion date for the landscaping job was within 450 days,
Edison Development & Construction," and CA-G.R. SP No.
commencing within 14 days after receipt by respondent of petitioner's
59849, "Elpidio S. Uy, doing business under the name and
written notice to proceed. Due to delays, the contracted period was
style of Edison Development & Construction v. Public
extended to 693 days. Among the causes of the delay was petitioner's
Estates Authority," are both hereby DENIED DUE COURSE
inability to deliver to respondent 45 hectares of the property for
and accordingly, DISMISSED, for lack of merit.
landscaping, because of the existence of squatters and a public
cemetery.
Consequently, the Award/Decision issued by the
Construction Industry Arbitration Commission on May 16,
Respondent instituted with the Construction Industry Arbitration
2000 in CIAC Case No. 02-200, entitled "Elpidio S. Uy, doing
Commission an action, docketed as CIAC Case No. 02-2000, seeking
business under the name and style of Edison Development
to collect from petitioner damages arising from its delay in the delivery
& Construction v. Public Estates Authority," is hereby
of the entire property for landscaping. Specifically, respondent alleged
AFFIRMED in toto.
that he incurred additional rental costs for the equipment which were
kept on standby and labor costs for the idle manpower. Likewise, the
delay incurred by petitioner caused the topsoil at the original supplier to No pronouncement as to costs.
be depleted, which compelled respondent to obtain the topsoil from a
farther source, thereby incurring added costs. He also claims that he 4
SO ORDERED.
had to mobilize water trucks for the plants and trees which have
already been delivered at the site. Furthermore, it became necessary
to construct a nursery shade to protect and preserve the young plants Both parties filed motions for reconsideration. Subsequently, petitioner
and trees prior to actual transplanting at the landscaped area. filed with the Court of Appeals an Urgent Motion for Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction,
seeking to enjoin the CIAC from proceeding with CIAC Case No. 03-
On May 16, 2000, the CIAC rendered a decision, the dispositive
2001, which respondent has filed. Petitioner alleged that the said case
portion of which reads:
involved claims by respondent arising from the same Landscaping and
Construction Agreement, subject of the cases pending with the Court
WHEREFORE, judgment is hereby rendered in favor of the of Appeals.
Claimant Contractor ELPIDIO S. UY and Award is hereby
made on its monetary claim as follows:
On April 25, 2001, the Court of Appeals issued the assailed Joint
Resolution, thus:
Respondent PUBLIC ESTATES AUTHORITY is directed to
pay the Claimant the following amounts:
WHEREFORE, the present Motion/s for Reconsideration in
CA-G.R. SP No. 59308 and CA-G.R. SP No. 59849 are
P19,604,132.06 — for the cost of idle time of equipment. hereby both DENIED, for lack of merit.
2,275,721.00 — for the cost of idled manpower.
Accordingly, let an injunction issue permanently enjoining the
6,050,165.05 — for the construction of the nursery shade net area.
Construction Industry Arbitration Commission from
605,016.50 — for attorney's fees. proceeding with CIAC Case No. 03-2001, entitled ELPIDIO
S. UY, doing business under the name and style of EDISON
DEVELOPMENT & CONSTRUCTION v. PUBLIC ESTATES
Interest on the amount of P6,050,165.05 as cost for the
AUTHORITY and/or HONORABLE CARLOS P. DOBLE.
construction of the nursery shade net area shall be paid at
the rate of 6% per annum from the date the Complaint was
5
filed on 12 January 2000. Interest on the total amount of SO ORDERED.
P21,879,853.06 for the cost of idled manpower and
equipment shall be paid at the same rate of 6% per annum
Hence, this petition for review, raising the following arguments:
from the date this Decision is promulgated. After finality of
this Decision, interest at the rate of 12% per annum shall be
paid on the total of these 3 awards amounting to I
P27,930,018.11 until full payment of the awarded amount
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
DENYING DUE COURSE PETITIONER'S (SIC) PETITION FILED
PURSUANT TO RULE 43 OF THE 1997 RULES OF CIVIL
PROCEDURE APPEALING THE ADVERSE DECISION OF THE CIAC
A QUO.
II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
DENYING THE HEREIN PETITIONER'S MOTION FOR
RECONSIDERATION ON THE JOINT DECISION PROMULGATED
ON SEPTEMBER 25, 2000.
III
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT
ALLOWING THE APPEAL ON THE MERITS TO BE THRESHED OUT
PURSUANT TO EXISTING LAWS AND JURISPRUDENCE ALL IN
INTEREST OF DUE PROCESS.
IV
THE HONORABLE COURT OF APPEALS ERRED IN DENYING
PETITIONER'S CLAIM FOR UNRECOUPED BALANCE IN THE 15%
ADVANCE PAYMENT; UNRECOUPED BALANCE ON PRE-PAID
MATERIALS, AND OVERPAYMENT BASED ON ACTUAL PAYMENT
MADE AS AGAINST PHYSICAL ACCOMPLISHMENTS.
V lawful fees, the deposit for costs, proof of service of the
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE CIAC DECISION FINDING RESPONDENT ENTITLED TO
ATTORNEY'S FEES IN THE AMOUNT OF P605,096.50 — WHICH IS
10% OF THE AMOUNT AWARDED FOR THE CLAIM OF NURSERY
SHADE CONSTRUCTION WHILE DENYING PETITIONER'S
COUNTERCLAIM FOR ATTORNEY'S FEES.
VI
THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING
THAT PETITIONER'S OBLIGATION, IF ANY, HAS BEEN
EFFECTIVELY EXTINGUISHED.
VII
THE HONORABLE COURT OF APPEALS ERRED IN NOT
ORDERING THE RESPONDENT TO REIMBURSE THE PETITIONER
THE AMOUNT OF P345,583.20 THE LATTER PAID TO THE
6
CONSTRUCTION INDUSTRY ARBITRATION COMMISSION.
7 We have carefully gone over the decision of the CIAC in CIAC Case
After respondent filed its comment on August 20, 2001, this Court
8
issued a resolution dated September 3, 2001 requiring petitioner to file
its reply within ten days from notice. Despite service of the resolution
on petitioner and its counsel on October 1, 2001, no reply has been
filed with this Court to date. Therefore, we dispense with the filing of
petitioner's reply and decide this case based on the pleadings on
record.
The petition is without merit.
Petitioner assails the dismissal of its petition by the Court of Appeals
based on a technicality, i.e., the verification and certification of non-
forum shopping was signed by its Officer-in-Charge, who did not
appear to have been authorized by petitioner to represent it in the
case. Petitioner moreover argues that in an earlier resolution, the First
Division of the Court of Appeals gave due course to its petition. Despite
this, it was the Seventeenth Division of the Court of Appeals which
rendered the Joint Decision dismissing its petition.
The contention is untenable. Petitioner, being a government owned
and controlled corporation, can act only through its duly authorized
representatives. In the case of Premium Marble Resources, Inc. v.
9
Court of Appeals, which the Court of Appeals cited, we made it clear
that in the absence of an authority from the board of directors, no
person, not even the officers of the corporation, can validly bind the
10
corporation. Thus, we held in that case:
We agree with the finding of public respondent Court of
Appeals, that "in the absence of any board resolution from its
board of directors the [sic] authority to act for and in behalf of
the corporation, the present action must necessary fail. The
power of the corporation to sue and be sued in any court is
lodged with the board of directors that exercises its corporate
powers. Thus, the issue of authority and the invalidity of
plaintiff-appellant's subscription which is still pending, is a
matter that is also addressed, considering the premises, to
the sound judgment of the Securities and Exchange
11
Commission."
Therefore, the Court of Appeals did not err in finding that, in view of the
absence of a board resolution authorizing petitioner's Officer-in-Charge
to represent it in the petition, the verification and certification of non-
forum shopping executed by said officer failed to satisfy the
requirement of the Rules. In this connection, Rule 43, Section 7, of the
1997 Rules of Civil Procedure categorically provides:
Effect of failure to comply with requirements. — The failure
of the petition to comply with any of the foregoing
requirements regarding the payment of the docket and other
petition, and the contents of and the documents which
should accompany the petition shall be sufficient ground for
the dismissal thereof.
Anent petitioner's contention that its petition had already been given
due course, it is well to note that under the Internal Rules of the Court
of Appeals, each case is raffled to a Justice twice — the first raffle for
completion of records and the second raffle for study and
12
report. Hence, there was nothing unusual in the fact that its petition
was first raffled to the First Division of the Court of Appeals but was
later decided by the Seventeenth Division thereof. Petitioner's
imputations of irregularity have no basis whatsoever, and can only be
viewed as a desperate attempt to muddle the issue by nit-picking on
non-essential matters. Likewise, the giving of due course to a petition
is not a guarantee that the same will be granted on its merits.
Significantly, the dismissal by the Court of Appeals of the petition was
based not only on its fatal procedural defect, but also on its lack of
substantive merit; specifically, its failure to show that the CIAC
committed gross abuse of discretion, fraud or error of law, such as to
warrant the reversal of its factual findings.
No. 02-2000, and we have found that it contains an exhaustive
discussion of all claims and counterclaims of respondent and
petitioner, respectively. More importantly, its findings are well
supported by evidence which are properly referred to in the record. In
all, we have found no ground to disturb the decision of the CIAC,
especially since it possesses the required expertise in the field of
construction arbitration. It is well settled that findings of fact of
administrative agencies and quasi-judicial bodies, which have acquired
expertise because their jurisdiction is confined to specific matters, are
generally accorded not only respect, but finality when affirmed by the
13
Court of Appeals.
Thus, we affirm the factual findings and conclusions of the CIAC as
regards the arbitral awards to respondent. The records clearly show
that these are amply supported by substantial evidence.
Coming now to petitioner's counterclaims, we find that the CIAC
painstakingly sifted through the records to discuss these, despite its
initial observation that petitioner "absolutely omitted to make any
 14
arguments" to substantiate the same. As far as the unrecouped however, that the instant petition has no merit, the motion for
balance on prepaid materials are concerned, the CIAC found: consolidation is rendered also without merit, as there will be no more
petition to consolidate with the said case. Hence, the motion to
consolidate filed in this case must be denied.
The Arbitral Tribunal finds the evidence adduced by the
Respondents (petitioner herein) sorely lacking to establish
this counterclaim. The affidavit of Mr. Jaime Millan touched However, in order not to prejudice the deliberations of the Court's
on this matter by merely stating this "additional claim Second Division in G.R. No. 147925-26, it should be stated that the
a) Unrecouped balance on prepaid materials amounting to findings made in this case, especially as regards the correctness of the
P45,372,589.85." No further elaboration was made of this findings of the CIAC, are limited to the arbitral awards granted to
bare statement. The affidavit of Mr. Roigelio A. Cantoria respondent Elpidio S. Uy and to the denial of the counterclaims of
merely states that as Senior Accountant, it was he who petitioner Public Estates Authority. Our decision in this case does not
prepared the computation for the recoupment of prepaid affect the other claims of respondent Uy which were not granted by the
materials and advance payment marked as "Annex "B" of CIAC in its questioned decision, the merits of which were not submitted
Respondent's Compliance/Submission dated 16 March to us for determination in the instant petition.
2000. Examination of that single page document shows that
for the 2nd Billing, the amount of P32,695,138.86 was "75%
WHEREFORE, in view of the foregoing, the petition for review is
Prepaid" for some unspecified "Materials on Hand." The rest
DENIED. The Motion to Consolidate this petition with G.R. No. 147925-
of the other items were payments for "trees and shrubs RCP
26 is also DENIED.
Baluster & Cons. Paver, and GFRC (Baluster)" in various
amounts taken from other billings. The billings themselves
have not been introduced in evidence. No testimonial SO ORDERED.
evidence was also offered to explain how these
computations were made, if only to explain the meaning of
those terms above-quoted and why the recoupment of
amounts of the various billings were generally much lower
than the payment for materials. As stated at the outset of the
discussion of these additional claims, "it is not the burden of
this Tribunal to dig into the haystack to look for the proverbial
15
needle to support these counterclaims."

On the other hand, we find that the CIAC correctly deferred

determination of the counterclaim for unrecouped balance on the
advance payment. It explained that the amount of this claim is
determined by deducting from respondent's progress billing a
proportionate amount equal to the percentage of work accomplished.
However, this could not be done since petitioner terminated the
construction contract. At the time the CIAC rendered its decision, the
issue of the validity of the termination was still pending determination
by the Regional Trial Court of Parañaque. Thus, in view of the non-
fulfillment of that "precondition to the grant" of petitioner's counterclaim,
16
the CIAC deferred resolution of the same. In the case at bar,
petitioner still failed to show that its termination of the construction
contract was upheld by the court as valid.

Anent petitioner's claim for attorney's fees, suffice it to state that it was
represented by the Government Corporate Counsel in the proceedings
before the CIAC. Attorney's fees are in the nature of actual damages,
17
which must be duly proved. Petitioner failed to show with convincing
evidence that it incurred attorney's fees.

Petitioner further argues that its liability to respondent has been

extinguished by novation when it assigned and turned over all its
contracted works at the Heritage Park to the Heritage Park
18
Management Corporation. This, however, can not bind respondent,
who was not a party to the assignment. Moreover, it has not been
shown that respondent gave his consent to the turn-over. Article 1293
of the Civil Code expressly provides:

Novation which consists in substituting a new debtor in the place of the

original one, may be made even without the knowledge or against the
will of the latter, but not without the consent of the creditor. Payment by
the new debtor gives him the rights mentioned in articles 1236 and
1237. (emphasis ours)

Lastly, petitioner argues that respondent should reimburse to it all fees

paid to the CIAC by reason of the case. To be sure, this contention is
based on the premise that the suit filed by respondent was
unwarranted and without legal and factual basis. But as shown in the
CIAC decision, this was not so. In fact, respondent was adjudged
entitled to the arbitral awards made by the CIAC. These awards have
been sustained by the Court of Appeals, and now by this Court.

It appears that there is a pending motion to consolidate the instant

petition with G.R. No. 147925-26, filed by respondent. Considering,
G.R. No. 147989 February 20, 2006
ROLANDO CLAVECILLA, Petitioner,
vs.
TERESITO QUITAIN and RICO QUITAIN, et al., Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a petition for review on certiorari assailing the
1 (RTC) dismissed the appeal for Clavecilla’s failure to file the
Resolution of the Court of Appeals (CA) dated October 5, 2000 which
dismissed Rolando Clavecilla’s petition on the ground that the
verification and certification of non-forum shopping was signed by
counsel without the proper authority from petitioner, as well as the
2
Resolution dated March 28, 2001 which denied petitioner’s motion for
reconsideration.
The facts are as follows:
Teresito and Rico Quitain (Quitains) filed on March 7, 1997, a
complaint against Rolando Clavecilla (Clavecilla) before the Municipal
Trial Court in Cities, Branch 6, Davao City (MTCC) for the enforcement
of the amicable settlement entered into by them on August 19, 1996
before the Lupon Tagapamayapa, Barangay Talomo, Davao. Pertinent
portions of said settlement reads:
1. That the respondent (Clavecilla) agreed to purchase the
property on October 15, 1996.
2. Failure to pay the property on the said date the
respondent will voluntarily vacate the place with the
assistance of five thousand (₱5,000.00) pesos only.
3. The complainant (Rico Quitain) agreed to the demand of
3
the respondent.
The Quitains alleged that Clavecilla failed to pay the amount agreed
upon and six months had already passed since the agreement was
4
entered into and yet Clavecilla has still not left the premises.
Clavecilla answered that the August 19, 1996 agreement was no
longer enforceable since it was novated by an agreement dated
5 No. 28-91 inutile.
October 29, 1996. Said agreement reads:
xxx
1. That both parties agreed to meet again on Nov. 5, 1996 at
the Barangay for another round of talk (sic).
2. That on Nov. 5, 1996 the respondent will pay the 50%
total amount of the selling price of the said lot, 111 sq.m.
more or less located at Lot 1989-A being a portion of Lot
1989 (T.C.T. # T-6615) at Talomo proper.
3. Price per sq.m. ₱1,000.00 only.
4. Failure to accomplished (sic) this Nov. 5, 1996
requirement, the respondent will voluntarily vacate the said
lot with a ₱5,000.00 assistance for their effort.
6
5. All agreement is final upon signing.
xxx
Clavecilla claims that on November 5, 1996, he appeared at
the barangay and was supposed to pay Quitains the 50% price of the
7
lot in question but they were not present. Rico Quitain asserts
however that he was present that day as shown by a certification made
8
by the office of the lupon of said barangay.
On March 8, 2000, the MTCC rendered its Decision in favor of the
Quitains finding that there was no novation, as the October 29, 1996
was not incompatible with the August 19, 1996 agreement but was only
9
a reiteration of the earlier agreement.
10
Clavecilla filed a notice of appeal.
On June 20, 2000, the Regional Trial Court of Davao City, Branch 33
11
memorandum on appeal within the period prescribed by the Rules.
Clavecilla filed a Motion for Reconsideration and For Leave of Court to
Admit Appeal Memorandum claiming that his counsel was not able to
file the memorandum on appeal on time since said counsel was
diagnosed with pneumonia and had to rest for more than ten
12
days. Clavecilla then filed an Appeal Memorandum claiming that the
MTCC erred in rendering judgment against him since he did not sign
the agreement but it was his wife Erlinda who signed the same without
13
authority from him.
On July 5, 2000, the RTC denied Clavecilla’s motion stating that the
reason advanced by Clavecilla’s counsel for his failure to file the
appeal memorandum on time is not a compelling reason, and even if
such memorandum was given due course, the arguments raised by
Clavecilla therein are not sufficient to justify a reversal of the Decision
14
of the lower court.
Petitioner filed another motion for reconsideration dated July 21, 2000
15
which was denied by the RTC on the same day.
On September 13, 2000, petitioner filed a petition for review under
Rule 42 of the Rules of Court with the CA which rendered the herein
assailed Resolution on October 5, 2000 thus:
The Verification and Certification of non-forum shopping, which
accompanied the petition at bench, was executed and signed by
petitioner’s counsel Atty. Oswaldo A. Macadangdang, without the
proper authority from petitioner, in violation of Sec. 5, Rule 7 and Sec.
2, Rule 42 of the 1997 Rules of Civil Procedure. The duty to certify
under oath is strictly addressed to petitioner, Rolando Clavecilla. To
allow delegation of said duty to anyone would render Revised Circular
16
xxx
xxxx
Accordingly, the Court Resolves to DENY DUE COURSE and
to DISMISS the petition.
17
SO ORDERED.
Petitioner’s motion for reconsideration was also denied on March 28,
2001 as follows:
Petitioner moves for the reconsideration of our Resolution dated 05
October 2000 dismissing the petition for the reason that the certificate
of non-forum shopping was signed by petitioner’s counsel and not by
the petitioner.1avvphil.net
Admitting that the duty to sign under oath the certificate is addressed to
the petitioner, petitioner attached to his motion a Special Power of
Attorney dated 09 August 2000 authorizing his counsel to sign the
certificate. The court believes that this authorization was made after
the petition had been filed, in a vain attempt to cure the fatal defect, for
if Atty. Maca[d]angdang had such authority, he would have indicated
that in the Verification and Certification he signed on 25 August 2000
attached to the petition.
In any event, it is a settled rule that the certificate against forum
shopping must be executed by the petitioner and not by counsel. xxx
To merit the Court’s Consideration, petitioner must show reasonable
cause for failure to personally sign the certification. x x x This petitioner
failed to show. (citations omitted)
WHEREFORE, the Motion for Reconsideration is DENIED for lack of
merit.
18
SO ORDERED.
Hence, the present petition alleging that:
THE HONORABLE COURT OF APPEALS ERRED IN DEPARTING
FROM THE ACCEPTED JURISPRUDENCE OF ALLOWING LIBERAL
INTERPRETATION OF THE RULES OF COURT PROVIDED
PETITIONER SUBSTANTIALLY COMPLIED WITH CIRCULAR NO.
28-91 AS SHOWN IN THE SPECIAL POWER OF ATTORNEY WHICH
19
HE ATTACHED TO HIS MOTION FOR RECONSIDERATION.
Petitioner avers that: his lawyer had the authority to sign the
certification against forum shopping; the CA was hasty in concluding
that the authorization of petitioner’s lawyer was made after the petition
had been filed; the CA should have granted petitioner the benefit of the
doubt that he gave such authorization to his lawyer at the time that his
lawyer signed the verification and certification against forum shopping;
petitioner’s failure to have a properly executed certification against
forum shopping attached to his petition for review is not fatal; the rules
of procedure are used only to help secure and not override substantial
justice, and the CA departed from the established liberal interpretation
of the rules despite petitioner’s substantial compliance with the rule on
20
non-forum shopping.
Rico Quitain in his Comment countered that: the petition is not
sufficient in form and substance and is utterly deficient in factual and
procedural bases; petitioner named "Teresito Quitain, Rico Quitain, et
al." as respondents without specifying who "et al." referred to; Teresito
Quitain is already deceased and the MTCC as early as June 5, 1998
already ordered Teresito’s substitution; the spouse and children of
Teresito, to wit, Lolita, Rene, Ruel, Radi and Romy, all surnamed
Quitain, have the right to be informed of the filing of the petition and the
fact that they were not so specifically named as respondents but were
referred to as "et al." makes the petition a sham pleading; petitioner
failed to attach certified true copies of the MTCC Decision dated March
8, 2000 and the RTC Order dated July 5, 2000 which should have
been included as annexes in the present petition as they are material
to the case, and the petition does not allege a good and valid defense
which, if appreciated, could probably cause the reversal of the July 5,
21
2000 and March 8, 2000 issuances.
The parties filed their respective Memoranda reiterating their
22
respective contentions.
After evaluating the records of the case and the issues raised by the
parties, the Court finds that the CA did not err in denying the petition
and motion for reconsideration filed by Clavecilla before it. The Court
however finds different grounds for denying Clavecilla’s petition.
First, it must be determined whether there existed a special power of
attorney in favor of petitioner’s counsel when the petition before the CA
was filed.
The CA in its Resolution dated March 28, 2001, stated that it believes
that the special power of attorney in favor of the lawyer attached to
petitioner’s motion for reconsideration was only made after the petition
had been filed reasoning that if the counsel had such authority from the
beginning, he would have attached the same when the petition was
first filed.
The Court disagrees.
The rule is that any suspicion on the authenticity and due execution of
the special power of attorney which is a notarized document, thus a
public document, cannot stand against the presumption of regularity in
their favor absent evidence that is clear, convincing and more than
23
merely preponderant.
In this case, the petition before the CA was filed on September 13,
24
2000. The special power of attorney meanwhile was dated August 9,
25
2000. Absent any proof that the special power of attorney was not
actually in existence before the petition was filed, this Court has no
recourse but to believe that it was indeed in existence at such time.
The next matter to be determined is whether the CA was correct in
dismissing Clavecilla’s petition and motion for reconsideration,
notwithstanding the authority given by Clavecilla in favor of his lawyer
to sign the verification and certification in his behalf.
The Court answers in the affirmative.
Obedience to the requirements of procedural rules is needed if we are
to expect fair results therefrom, and utter disregard of the rules cannot
justly be rationalized by harking on the policy of liberal
26
construction. Time and again, this Court has strictly enforced the
requirement of verification and certification of non-forum shopping
27
under the Rules of Court. This case is no exception.
Verification is required to secure an assurance that the allegations of
the petition have been made in good faith, or are true and correct and
28
not merely speculative.
In this case, petitioner’s counsel signed the verification alleging that he
had read the petition and the contents thereof are true and correct of
29
his own "knowledge and belief."
On this ground alone, the petition should already be dismissed for as
provided for in Section 4 Rule 7 of the Rules of Court, as amended by
A.M. No. 00-2-10-SC dated May 1, 2000:
Sec. 4. Verification. ---xxx
A pleading is verified by an affidavit that the affiant has read the
pleading and that the allegations therein are true and correct of his
personal knowledge or based on authentic records.1avvphil.net
A pleading required to be verified which contains a verification based
on "information and belief," or upon "knowledge, information and
belief," or lacks a proper verification, shall be treated as an unsigned
pleading.
While the Court has exercised leniency in cases where the lapse in
observing the rules was committed when the rules have just recently
30
taken effect, the attendant circumstances in this case however do not
warrant such leniency.1avvphil.net
The certification against forum shopping in this case was signed by
petitioner’s counsel despite the clear requirement of the law that
petitioners themselves must sign the certification. The certification
must be made by petitioner himself and not by counsel, since it is
petitioner who is in the best position to know whether he has previously
commenced any similar action involving the same issues in any other
31
tribunal or agency. And the lack of a certification against forum
shopping, unlike that of verification, is generally not cured by its
32
submission after the filing of the petition.
As explained by this Court in Gutierrez v. Sec. of Dept. of Labor and
33
Employment:
x x x [T]he certification (against forum shopping) must be signed by the
plaintiff or any of the principal parties and not by the attorney. For such
certification is a peculiar personal representation on the part of the
principal party, an assurance given to the court or other tribunal that
there are no other pending cases involving basically the same parties,
issues and causes of action.
x x x Obviously it is the petitioner, and not always the counsel whose
professional services have been retained for a particular case, who is
in the best position to know whether he or it actually filed or caused the
filing of a petition in that case. Hence, a certification against forum
34
shopping by counsel is a defective certification.
35
In Mariveles Shipyard Corp. v. Court of Appeals, this Court further
elucidated that:
In this case, petitioner did not present any cause for his failure to
personally sign the certification against forum shopping at the time that
the petition was filed at the CA. He merely acknowledged in his motion
for reconsideration of the October 5, 2000 Resolution of the CA that he
43
"has the duty to certify under oath." He then asked for a
reconsideration of the said Resolution and attached a Special Power of
44
Attorney executed by him in favor of his lawyer.
There is also no showing that there is substantial merit in petitioner’s
claims. In his petition before the CA and in his Appeal Memorandum
filed with the RTC, petitioner argues that he is not a party to the
amicable settlement as it was his wife who signed the same without
45
authority from him. Petitioner in his Answer however admitted having
entered into an agreement with the Quitains, before the lupon of
46
their barangay on August 19, 1996.

Petitioner also claims that the August 19, 1996 agreement was
x x x In the case of natural persons, the Rule requires the parties
novated by the one dated October 29, 1996. The claim has no merit.
themselves to sign the certificate of non-forum shopping. x x x [I]n
the case of the corporations, the physical act of signing may be
performed, on behalf of the corporate entity, only by specifically Novation cannot be presumed but must be clearly shown either by the
authorized individuals for the simple reason that corporations, as express assent of the parties or by the complete incompatibility
47
artificial persons, cannot personally do the task between the old and the new agreements. In this case, the October
36
themselves. (emphasis supplied) 29, 1996 agreement merely held that the parties shall meet again on
November 5, 1996 at which time petitioner shall pay 50% of the
37 purchase price or he will vacate the property. His obligation to pay the
In the case of Santos v. Court of Appeals, the Court further clarified,
purchase price or to vacate the property in case of his failure to do so,
that even with a special power of attorney executed by the petitioners
still exists and was not extinguished by the October 29, 1996
in favor of their counsel to sign the certification on their behalf, still the
agreement.
rule stands. Thus:

Records also show that Rico Quitain was ready to comply with his part
We are aware of our ruling in BA Savings Bank v. Sia that a
of the agreement as he was present at the barangay on November 5,
certification against forum shopping may be signed by an authorized 48
1996 to receive the payment from Clavecilla. Quitain also consigned
lawyer who has personal knowledge of the facts required to be
the amount of ₱5,000.00 to the court, which is the amount he agreed to
disclosed in such document. However, BA Savings Bank must be
give Clavecilla to assist him and his family when they leave the
distinguished from the case at bar because in the former, the 49
property.
complainant was a corporation, and hence, a juridical person.
Therefore, that case made an exception to the general rule that the
certification must be made by the petitioner himself since a corporation As correctly pointed out by the RTC, even if petitioner’s appeal was
can only act through natural persons. In fact, physical actions, e.g., allowed to proceed, still the arguments raised are not sufficient to
signing and delivery of documents, may be performed on behalf of the overturn the ruling of the MTCC.
corporate entity only by specifically authorized individuals. In the
instant case, petitioners are all natural persons and there is no
It is also worth mentioning that the petitioner erred in including the
showing of any reasonable cause to justify their failure to
name of Teresito in the caption of the petition and using only the
personally sign the certification. It is noteworthy that PEPSI in its
phrase "et al." to refer to the heirs who substituted him after his death.
Comment stated that it was petitioners themselves who executed the
As pointed out by respondent Rico Quitain, Teresito is already
verification and certification requirements in all their previous
deceased and was already substituted by his heirs, namely: Lolita,
pleadings. Counsel for petitioners argues that as a matter of policy,
widow of Teresito, Rene, Ruel, Radi, and Romy, sons of Teresito, in
a Special Power of Attorney is executed to promptly and effectively 50
the Order of the MTCC dated June 5, 1998. Consequently, the
meet any contingency relative to the handling of a case. This argument
above-named heirs are deemed co-respondents in the present petition.
only weakens their position since it is clear that at the outset no
justifiable reason yet existed for counsel to substitute petitioners
in signing the certification. In fact, in the case of natural persons, WHEREFORE, the petition is DENIED for lack of merit. Costs against
this policy serves no legal purpose. Convenience cannot be made petitioner.
38
the basis for a circumvention of the Rules. (emphasis supplied)
SO ORDERED.
While there are cases when the Court has relaxed the rule requiring
that in case of a natural person, he shall personally sign the non-forum
shopping certification, in such cases the Court found compelling and
justifiable reasons to relax observance of the rules.

39 40
In Donato v. Court of Appeals and Wee v. Galvez the Court noted
that the petitioners were already in the United States, thus the signing
of the certification by their authorized representatives was deemed
41
sufficient compliance with the rules. In Orbeta v. Sendiong the Court
found that the annulment of judgment filed by the parties was
meritorious thus the certification signed by the daughter of petitioner
who had a general power of attorney in her favor was deemed
42
sufficient. In Sy Chin v. Court of Appeals the Court also upheld
substantial justice and ruled that the failure of the parties to sign the
certification may be overlooked as the parties’ case was meritorious.

No such justifiable or compelling reasons exist in the case at bar.

G.R. No. 146459 June 8, 2006
HEIRS OF DICMAN, namely: ERNESTO DICMAN, PAUL DICMAN,
FLORENCE DICMAN FELICIANO TORRES, EMILY TORRES,
TOMASITO TORRES and HEIRS OF CRISTINA ALAWAS and
BABING COSIL, * Petitioners,
vs.
JOSE CARIÑO and COURT OF APPEALS, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
This refers to the petition for review on certiorari under Rule 45 of the
1
Rules of Court questioning the Decision dated June 30, 2000 of the
Court of Appeals (CA) in C.A.-G.R. CV No. 33731, which affirmed in
toto the Decision dated November 28, 1990 of the Regional Trial Court
(RTC), Branch 7 (Baguio City), La Trinidad, Benguet; and the CA
Resolution dated December 15, 2000 which denied the petitioners’
motion for reconsideration.
The petition originated from an action for recovery of possession of the
eastern half of a parcel of land situated in Residence Section "J",
Camp Seven, Baguio City, consisting of 101,006 square meters, more
2
or less, and identified as Lot 46, Ts-39, Plan SWO-37115.
The antecedent facts are clear:
The subject land, at the turn of the 20th century, had been part of the
land claim of Mateo Cariño. Within this site, a sawmill and other
buildings had been constructed by H.C. Heald in connection with his
lumber business. On March 14, 1916, H.C. Heald sold the buildings to
Sioco Cariño, son of Mateo Cariño and grandfather of private
respondent Jose Cariño. Sioco Cariño then took possession of the
buildings and the land on which the buildings were situated.
3 received from my son, Guzman A. Cariño x x x have ceded, transferred
Ting-el Dicman, predecessor-in-interest of the petitioners, namely,
Ernesto Dicman, Paul Dicman, Florence Dicman, Babing Cosil,
Feliciano Torres, Cristina Alawas, Emily Torres and Tomasito Torres,
and resident of Atab, a sitio within the City of Baguio but located at
some distance from the land in controversy, had been employed by
Sioco Cariño as his cattle herder. On the advice of his lawyers, and
because there were already many parcels of land recorded in his
4 ceded, conveyed and transferred one half of his title, rights and
name, Sioco Cariño caused the survey of the land in controversy in
the name of Ting-el Dicman.
On October 22, 1928, Ting-el Dicman executed a public instrument
entitled "Deed of Conveyance of Part Rights and Interests in
Agricultural Land" with Sioco Cariño. The deed reads:
DEED OF CONVEYANCE OF PART RIGHTS AND
INTERESTS IN AGRICULTURAL LAND.
KNOW ALL PERSONS BY THESE PRESENTS:
That I, Ting-el Diac-man, of legal age, widower, and resident of the
sitio known as "Atab", near Camp Seven, City of Baguio, Philippine
Islands, DO HEREBY STATE, viz: —
That I am the applicant for a free-patent of a parcel of land (public),
having a surface of over ten (10) hectares, surveyed by the District
Land Office of Baguio for me, and located in the place known as Camp
Seven, Baguio;
That to-date I have not as yet received the plan for said survey;
That Mr. Sioco Cariño has advanced all expenses for said survey for
me and in my name, and also all other expenses for the improvement
of said land, to date;
That for and in consideration of said advance expenses, to me made
and delivered by said Mr. Sioco Cariño, I hereby pledge and promise to
convey, deliver and transfer unto said Sioco Cariño, of legal age,
married to Guilata Acop, and resident of Baguio, P.I., his heirs and
assigns, one half (1/2) of my title, rights, and interest to and in the
aforesaid parcel of land; same to be delivered, conveyed and
transferred in a final form, according to law, to him, his heirs and
assigns, by me, my heirs, and assigns, as soon as title for the same is
issued to me by proper authorities.
That this conveyance, transfer, or assignment, notwithstanding its
temporary nature, shall have legal force and effect; once it is approved
by the approving authorities all the final papers and documents, this
instrument shall be considered superseded.
After I have received my title to said parcel of land I bind myself, my
heirs and assigns, to execute the final papers and forward same for
approval of the competent authorities at Mr. Sioco Cariño’s expense.
WITNESS MY HAND in the City of Baguio, P.I., this, the 22nd day of
October, 1928, A.D.
5
his right thumbmark
TING-EL DIAC-MAN
After the execution of the foregoing deed, Sioco Cariño, who had been
in possession of the land in controversy since 1916, continued to stay
thereon.
On January 10, 1938, Sioco Cariño executed, as seller, a public
instrument entitled "Deed of Absolute Sale" covering the subject land
and its improvements with his son, Guzman Cariño, as buyer. The
contract states in part:
x x x for and in consideration of the sum of ONE PESO (P 1.00)
Philippine Currency and other valuable considerations which I had
and conveyed as by these presents do hereby cede, convey and
transfer unto the [sic] said Guzman A. Cariño, his heirs, executors,
administrators and assigns, all my rights, title, interests in and
participation to that parcel of land (public) covered by an application for
free patent with a surface area of Ten (10) hectares, surveyed by the
District Land Office of Baguio in the name of Pingel Dicman, and who
interests to me under an instrument executed by the said owner in the
city of Baguio, Philippines, on the 22nd day of October, 1928 A.D. and
duly ratified before Notary Public x x x together with all improvements
therein, consisting of oranges, mangoes, and other fruit trees and a
building of strong materials (half finished) x x x, which building was
purchased by me from H.C. Heald on March 14, 1916, free from all
liens and encumbrances, with full rights and authority to the said
Guzman A. Cariño to perfect his claim with any government agency the
proper issuance of such patent or title as may be permitted to him
under existing laws.
xxxx
6
In a letter dated January 15, 1938, Sioco Cariño asked his son,
Guzman Cariño, who had been doing business in Damortis, Sto.
Tomas, La Union, to take possession of the subject land and
7
building. Guzman Cariño moved to Baguio as requested and occupied
the property. Evidence was adduced in the RTC to the effect that
Guzman Cariño took possession of the property publicly, peacefully,
and in the concept of owner: the directory of Baguio Telephones
published in October 1940 lists the residence of Guzman A. Cariño at
Camp 7, Baguio City, along with his telephone number; pictures were
taken of him and his family, including the private respondent who was
then an infant, depicting the property in the background; U.S. Army
authorities obtained permission from Guzman Cariño to use a part of
the land in question after the war; he introduced various improvements
on the property over the years and exercised acts of ownership over
them; he permitted the use of portions of the land to Governor Eulogio
Rodriguez, Jr. and the Boy Scouts of Rizal Province; he leased out
portions of the land to Bayani Pictures, Inc.; and his neighbors
confirmed the possession and occupation over the property of Guzman
Cariño and, after him, his son, herein private respondent Jose Cariño.
These findings of fact were either confirmed or uncontroverted by the
8 On April 20, 1983, petitioners, suing as compulsory heirs of Ting-el
CA.
On July 27, 1954, Guzman Cariño had the entire Lot 46 resurveyed so
as to indicate the half portion that belonged to him and the other half
that belonged to the petitioners. The resurvey evenly divided the lot
into Lot 76-A and 76-B, and purportedly indicated that Lot 76-A,
consisting of 50,953 square meters, belonged to the petitioners, while
Lot 76-B, also consisting of 50,953 square meters, formerly pertained
to Sioco Cariño and, later, to Guzman Cariño. Additionally, the
resurvey indicated the house where private respondent Jose Cariño
resided and, before him, where his predecessors-in-interest, Sioco and
Guzman Cariño, also resided.
On May 23, 1955, Guzman Cariño filed a Free Patent Application over
the land in question. The application was given due course, but
Guzman later withdrew it when he decided to file his opposition to the
petition later filed by the heirs of Ting-el Dicman. This petition, entitled
"Petition of the Heirs of Dicman to Reopen Civil Reservation Case No.
1, G.L.R.O. 211," was filed by Felipe Dicman, Bobing Dicman and
Cating Dicman, in their capacity as compulsory heirs of Ting-el Dicman
on April 24, 1959 with the Court of First Instance of Baguio. The
petition sought to establish ownership over Lot 76-A and Lot 76-B
which, taken together, covered an area of 10.1006 hectares. Guzman
Cariño opposed the petition insofar as he insisted ownership over Lot
76-B, the land in controversy. The Estate of Sioco Cariño likewise filed
an opposition.
On March 6, 1963, the trial court rendered a partial judgment and
confirmed that the title over Lot 76-A belonged to the heirs of Ting-el
Dicman, there having been no adverse claim. But as to Lot 76-B, the
trial court found it necessary to hold further hearing in order to decide
on the adverse claims of the parties.
Meanwhile, on January 8, 1960, while the foregoing petition was
pending in the trial court, President Carlos P. Garcia issued
Proclamation No. 628 "excluding from the operation of the Baguio
Townsite Reservation certain parcels of public land known as ‘Igorot
Claims’ situated in the City of Baguio and declaring the same open to
disposition under the provisions of Chapter VII of the Public Land Act."
The Proclamation further provided that the "Igorot Claims" enumerated
therein shall be "subject to the condition that except in favor of the
government or any of its branches, units, or institutions, lands acquired
by virtue of this proclamation shall not be encumbered or alienated
within a period of fifteen years from and after the date of issuance of
patent." One such claim pertained to the "Heirs of Dicman," to wit:
Name Lot No. Survey Plan Residence Section Area (Sq.m.)
Heirs of 46 Swo-37115 "J" 101,006
Dicman
Before the trial court could dispose of the case, the Supreme Court
9
promulgated Republic v. Marcos which held that Courts of First
Instance of Baguio have no jurisdiction to reopen judicial proceedings
on the basis of Republic Act No. 931. As a consequence, on July 28,
1978, the trial court dismissed the petition to reopen Civil Reservation
Case No. 1, G.L.R.O. 211 insofar as Lot 76-B was concerned, and the
certificate of title issued pursuant to the partial decision involving Lot
76-A was invalidated. The trial court stated that the remedy for those
who were issued titles was to file a petition for revalidation under
Presidential Decree No. 1271, as amended by Presidential Decrees
No. 1311 and 2034.
After the dismissal of the case, Guzman Cariño was left undisturbed in
his possession of the subject property until his death on August 19,
1982. His remains are buried on the land in question, next to the large
house purchased in 1916 by his father, Sioco Cariño (the grandfather
of private respondent), from H.C. Heald. Guzman’s widow and son,
private respondent Jose Sioco C. Cariño, continued possession of the
10
subject property.
Dicman, revived the foregoing case by filing a complaint for recovery of
possession with damages involving the subject property with the RTC,
docketed as Civil Case No. 59-R. As earlier stated, petitioners, then
complainants, originally sought to recover possession of the eastern
half of the parcel of land situated in Residence Section "J", Camp
Seven, Baguio City, consisting of 101,006 square meters, more or less,
and identified as Lot 46, Ts-39, Plan SWO-37115.
Petitioners, then plaintiffs, averred in their complaint:
10. That however, this Honorable Court was not able to decide the [ ]
petition for reopening as far as the remaining eastern half portion of the
above-described property is concerned due to the fact that the said
petition was dismissed for alleged lack of jurisdiction; x x x
11. That because of the above-mentioned dismissal, the conflict
between herein plaintiffs and defendant over the half eastern portion of
the above-described property which was one of the issues supposed to
be decided in the said judicial reopening case remains undecided;
12. That after the dismissal of the abovementioned petition and before
the dispute between herein plaintiffs and defendant over the eastern
half portion of the above-described property, defendant unlawfully and
illegally continue to occupy portion [sic] of the above-described
property to the clear damage and prejudice of herein plaintiffs;
13. That the defendant has no valid claim of ownership and possession
over any of the portions of the above-described property;
14. That plaintiffs and their predecessors-in-interest have been
religiously paying the realty taxes covering the above-described
11
property x x x
Private respondent Jose Cariño filed his answer and prayed for
dismissal. He alleged that his predecessors-in-interest had acquired
the land by onerous title through the "Deed of Absolute Sale" dated
January 10, 1938 executed by his grandfather, Sioco Cariño, as seller,
and his father, Guzman Cariño, as buyer; that the property was earlier
acquired by Sioco Cariño by virtue of the "Deed of Conveyance of Part
Rights and Interests in Agricultural Land" dated October 22, 1928
executed between Sioco Cariño and Ting-el Dicman; and that he has
been in possession of the subject property for 55 years peacefully, in
good faith, and in concept of owner and therefore perfected title over
the same through acquisitive prescription.
On June 13, 1983, the administratrix of the Estate of Sioco Cariño filed
a motion to intervene with the RTC. On July 1, 1983, the RTC granted
said motion. On July 11, 1983, the Estate of Sioco Cariño filed its
Complaint-in-Intervention, praying for quieting of title among the
adverse claimants.
The RTC, through an ocular inspection on February 15, 1984, found
that the larger building still stands on the land in controversy and,
together with the surrounding area, constituted the residence and was
in the possession of private respondent and his family.
On November 28, 1990, the RTC rendered its decision in favor of
private respondent, the dispositive portion of which states:
IN VIEW OF THE FOREGOING, judgment is hereby rendered as
follows:
1. Plaintiffs’ complaint is hereby DISMISSED;
2. Plaintiffs’-Intervenors complaint-in-intervention is hereby
dismissed;

3. Defendant is hereby declared the lawful possessor and as
the party who has the better right over the land subject
matter [sic] of this action and as such he may apply for the
confirmation of his title thereto in accordance with law (R.A.
12
No. 8940 )[.] Defendant’s counterclaim is dismissed;
4. Costs is [sic] adjudged against the plaintiff and plaintiff-
intervenor.
SO ORDERED.
To support its ruling, the RTC found that the tax declarations and their
revisions submitted as evidence by the petitioners made no reference
13
to the land in question; that no tax declaration over the land declared
in the name of the Estate of Sioco Cariño had been submitted as
evidence, and that the intervenor-estate presented tax declarations
over the building only; that it was Guzman Cariño alone who declared
for taxation purposes both the land and the improvements thereon in
14
his name; that there is no evidence to the
effect that petitioners ever filed any action to challenge the validity of
the "Deed of Conveyance of Part Rights and Interests in Agricultural
Land" dated October 22, 1928; that even assuming that this instrument
may be invalid for whatever reason, the fact remains that Sioco Cariño
and his successors-in-interest had been in possession of the subject
property publicly, adversely, continuously and in concept of owner for
15
at least 55 years before the filing of the action; that Sioco’s
successor, Guzman Cariño, had been in open and continuous
possession of the property in good faith and in the concept of owner
from 1938 until his death in 1982 and, hence, the Estate of Sioco
Cariño has lost all rights to recover possession from Guzman Cariño or
his heirs and assigns; and that although the Estate of Sioco Cariño
attempted to assail the genuineness and due execution of the "Deed of
Absolute Sale" dated January 10, 1938 executed by Sioco Cariño in
favor of his son, Guzman Cariño, the challenge failed since no
16
evidence had been adduced to support the allegation of forgery.
On January 23, 1991, petitioners seasonably filed their notice of
appeal. The RTC, however, denied the motion for reconsideration and
motion to admit appeal filed by the Estate of Sioco Cariño on July 3,
1991 for being filed out of time.
Petitioners raised the following issues before the Court of Appeals:
1. THE HONORABLE TRIAL COURT SERIOUSLY ERRED
IN NOT CONSIDERING THE DOCUMENTARY EVIDENCE
OF THE PLAINTIFFS-APPELLANTS AND THE
STRAIGHTFORWARD DECLARATIONS OF THEIR
WITNESS.
2. THE HONORABLE TRIAL COURT ERRED IN
CONSIDERING THE DEED OF CONVEYANCE [OF] PART
RIGHTS AND INTERESTS IN AGRICULTURAL LAND
EXECUTED BY DICMAN IN FAVOR OF SIOCO CARIÑO
DESPITE ITS NULLITY.
3. THE HONORABLE TRIAL COURT ERRED IN
DECLARING DEFENDANT-APPELLEE TO HAVE A
BETTER RIGHT TO THE PROPERTY IN DISPUTE.
4. THE HONORABLE TRIAL COURT ERRED IN
DISMISSING THE COMPLAINT AND NOT GRANTING THE
RELIEFS PRAYED FOR THEREIN.
On June 30, 2000, the CA dismissed the petition and affirmed in toto
the ruling of the RTC. On December 15, 2000, the CA issued a
Resolution denying petitioners’ motion for reconsideration.
The CA based its ruling on the following reasons: that the petitioners
raised for the first time on appeal the issue on whether the "Deed of
Conveyance of Part Rights and Interests in Agricultural Land" is void
ab initio under Sections 145 and 146 of the Administrative Code of
17
Mindanao and Sulu (which was made applicable later to the Mountain
Province and Nueva Viscaya by Act 2798, as amended by Act 2913,
and then to all other cultural minorities found within the national
18
territory by virtue of Section 120 of the Public Land Act ) and, hence,
19
cannot be considered by the reviewing court; that, even if this issue
were considered, the records fail to show that Ting-el Dicman, though
an Igorot, is a non-Christian and, hence, the foregoing laws are not
20
applicable; that there was sufficient proof of consideration for the said
21
deed; and that even if the deed were a mere contract to sell and not
22
an absolute sale, under Borromeo v. Franco the obligation on the part
of the purchaser to perfect the title papers within a certain time is not a
condition subsequent nor essential to the obligation to sell, but rather
the same is an incidental undertaking the failure to comply therewith
not being a bar to the sale agreed upon.
23
On February 12, 2001, petitioners, through newly retained counsel,
filed their petition for review on certiorari under Rule 45.
Petitioners raise the following grounds for the petition:
A.
THE COURT OF APPEALS ERRED IN RULING THAT THE
PROVISIONS OF ACT NO. 2798 ARE NOT APPLICABLE TO THE
"DEED OF CONVEYANCE" EXECUTED BY PING-EL DICMAN ON
THE GROUNDS THAT THERE IS NO PROOF THAT HE WAS A
NON-CHRISTIAN AND THAT BAGUIO CITY IS NOT COVERED BY
THE SAID ACT.
B.
THE COURT OF APPEALS ERRED IN THE APPLICATION OF THE
RULING IN BORROMEO V. FRANCO (5 PHIL 49 [1905]) THAT AN
AGREEMENT ON THE PART OF THE PARTY TO A CONTRACT TO
PERFECT THE TITLE PAPERS TO A CERTAIN PROPERTY WITHIN
A CERTAIN TIME IS NOT A CONDITION SUBSEQUENT OR
ESSENTIAL OF THE OBLIGATION TO SELL [sic].
C.
THE COURT OF APPEALS ERRED IN RULING THAT THE
PROPERTY SUBJECT OF LITIGATION AND OVER WHICH
RESPONDENT’S IMPROVEMENTS ARE BUILT BELONGS TO
RESPONDENT NOTWITHSTANDING UNCONTROVERTED
EVIDENCE THAT PETITIONERS’ PREDECESSOR-IN-INTEREST
PING-EL DICMAN HAD APPLIED FOR FREE PATENT OVER THE
SUBJECT AREA AND HAD BEEN ISSUED PLAN SWO-37115 IN HIS
NAME BY THE BUREAU OF LANDS IN 1954 AND HAD BEEN IN
ACTUAL, OPEN, PEACEFUL, ADVERSE AND CONTINUOUS
POSSESSION OF THE PROPERTY SINCE THE EARLY 1900s
UNTIL HIS DEATH WHEN HIS GRANCHILDREN AND
SUCCESSORS-IN-INTEREST, THE PETITIONERS, TOOK OVER
AND CONTINUED THE POSSESSION OF THEIR GRANDFATHER,
PING-EL DICMAN.
On March 2, 2001, petitioners filed their Manifestation and Motion to
Substitute Babing Cosil and Cristina Alawas With Their Respective
Heirs stating, among others, that Julio F. Dicman, son of petitioner
Ernesto Dicman, had been appointed by the petitioners to sign the
petition for and in their behalf, but due to distance and time constraints
between Makati City and Baguio, he was not able to submit the same
in time for the deadline for the petition on February 12, 2001.
Petitioners attached the Special Power of Attorney seeking to formalize
the appointment of Julio F. Dicman as their attorney-in-fact and to ratify
his execution of the verification and certification of non-forum shopping
for and on behalf of the petitioners.
On March 15, 2001, private respondent filed with this Court a Motion
for Leave of Court to File Motion to Dismiss and/or Deny Due Course,
arguing that the petition failed to comply with the requirements for
verification and certification of non-forum shopping. The affiant of the
petition, according to private respondent, is not a principal party in the
case; rather, he is merely the son of Ernesto Dicman, one of the
petitioners. The verification and certification reads:
VERIFICATION AND CERTIFICATION
I, JULIO F. DICMAN, of legal age, Filipino, with residence address at
Camp 7, Montecillo Road, Baguio City, after being first duly sworn in
accordance with law, do hereby depose and state:
1. I am one of the petitioners in the above-entitled case;
x x x (emphasis supplied)
To private respondent, since Ernesto Dicman, one of the petitioners,
appears to be alive, he excludes his son as the successor-in-interest of
Ting-el Dicman. The verification, therefore, is false in view of the
statement under oath that Julio F. Dicman is a petitioner when in fact
he is not, and should be cause for the dismissal of the case and
indirect contempt of court, without prejudice to administrative and
criminal action.
On May 2, 2001, in their Manifestation and Motion for Leave to File the
Attached Reply and Reply, petitioners argued that while it may be true
that the verification and certification to the petition were signed by Julio
F. Dicman, the son of one of the petitioners, they subsequently
confirmed his authority to sign on behalf of all the petitioners through
the Special Power of Attorney submitted to the Court in a Manifestation
and Motion to Substitute Babing Cosil and Cristina Alawas With Their
Respective Heirs filed on March 2, 2001. Petitioners invoked
substantial compliance and prayed that the Court overlook the
procedural lapse in the interest of substantial justice. The parties
thereafter submitted their respective memoranda.
The petition must be dismissed on the following grounds:
1. Section 5, Rule 7 of the 1997 Rules of Civil Procedure, which
requires the pleader to submit a certificate of non-forum shopping to be
executed by the plaintiff or principal party, is mandatory, and non-
compliance therewith is a sufficient ground for the dismissal of the
24
petition. The forum shopping certification must be signed by the party
himself as he has personal knowledge of the facts therein
25
stated. Obviously, it is the plaintiff or principal party who is in the best
position to know whether he actually filed or caused the filing of a
26
petition in the case. Where there are two or more plaintiffs or
petitioners, all of them must sign the verification and non-forum
certification, and the signature of only one of them is
27
insufficient, unless the one who signs the verification and certification
has been authorized to execute the same by, and on behalf of, the co-
28
plaintiff or co-petitioner. But it must be stressed that the requirement
the principal party himself should sign the certification applies only to a
natural person and not to a juridical person which can only act through
29
its officer or duly authorized agent.
However, the Court has also held that the rules on forum shopping
were designed to promote and facilitate the orderly administration of
justice and thus should not be interpreted with such absolute
literalness as to subvert its own ultimate and legitimate objective. The
rule of substantial compliance may be availed of with respect to the
contents of the certification. This is because the requirement of strict
compliance with the provisions regarding the certification of non-forum
shopping merely underscores its mandatory nature in that the
certification cannot be altogether dispensed with or its requirements
30
completely disregarded. Thus, under justifiable circumstances, the
Court has relaxed the rule requiring the submission of such certification
considering that although it is obligatory, it is not
31
jurisdictional. lawphil.net
But a perusal of the relevant decisions handed down by this Court
consistently shows that substantial compliance may be invoked and
the procedural lapse overlooked provided that, where the petitioner is a
natural person as in the case at bar, the authorized signatory must also
32
be a principal party or co-petitioner. Petitioners, as natural persons,
cannot therefore appoint a non-party to sign for them, especially since
only the petitioners occupy the best position to know whether they
actually filed or caused the filing of a petition in this case and who
personally know the facts stated in the petition. On this point alone the
petition should be dismissed.
2. It is a settled rule that in the exercise of the Supreme Court’s power
of review, the Court is not a trier of facts and does not normally
undertake the re-examination of the evidence presented by the
contending parties during the trial of the case considering that the
findings of facts of the CA are conclusive and binding on the Court.
While jurisprudence has recognized several exceptions in which factual
issues may be resolved by this Court, namely: (1) when the findings
are grounded entirely on speculation, surmises or conjectures; (2)
when the inference made is manifestly mistaken, absurd or impossible;
(3) when there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of facts are
conflicting; (6) when in making its findings the CA went beyond the
issues of the case, or its findings are contrary to the admissions of both
the appellant and the appellee; (7) when the findings are contrary to
the trial court; (8) when the findings are conclusions without citation of
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 respondent; (10) when the findings of fact are
premised on the supposed absence of evidence and contradicted by
the evidence on record; and (11) when the CA manifestly overlooked
certain relevant facts not disputed by the parties, which, if properly
33
considered, could justify a different conclusion, none of these
exceptions has been shown to apply in the present case and, hence,
this Court may not review the findings of fact made by the lower courts.
3. Petitioners argue on appeal that the "Deed of Conveyance of Part
Rights and Interests in Agricultural Land" dated October 22, 1928
executed between Sioco Cariño and Ting-el Dicman is void ab initio for
lack of approval of competent authorities as required under Section
145 in relation to Section 146 of the Administrative Code of Mindanao
and Sulu, the application of which was later extended to the Mountain
Province and Nueva Viscaya and, thereafter, throughout the entire
34
national territory; that the sale was without valid consideration; and
that the said deed is not an absolute sale but merely a contract to sell
subject to the suspensive condition that the papers evidencing the title
must first be perfected. These arguments were lumped under the
following issue in their appeal to the CA:
2. THE HONORABLE TRIAL COURT ERRED IN CONSIDERING THE
DEED OF CONVEYANCE [OF] PART RIGHTS AND INTERESTS IN
AGRICULTURAL LAND EXECUTED BY DICMAN IN FAVOR OF
SIOCO CARIÑO DESPITE ITS NULLITY.
The foregoing issue and the incidents thereunder were never raised by
the petitioners during the proceedings before the RTC. Suffice it to say
that issues raised for the first time on appeal and not raised timely in
35
the proceedings in the lower court are barred by estoppel. Matters,
theories or arguments not brought out in the original proceedings
cannot be considered on review or appeal where they are raised for
the first time. To consider the alleged facts and arguments raised
belatedly would amount to trampling on the basic principles of fair play,
justice and due process.
36
4. Even if this Court should declare the sale null and void or the
agreement merely a contract to sell subject to a suspensive condition
that has yet to occur, private respondent nonetheless acquired
37
ownership over the land in question through acquisitive prescription.
The records show that as early as 1938, the land in controversy had
been in the possession of Guzman Cariño, predecessor-in-interest of
private respondent, continuously, publicly, peacefully, in concept of
owner, and in good faith with just title, to the exclusion of the
petitioners and their predecessors-in-interest, well beyond the period
required under law to acquire title by acquisitive prescription which, in
38
this case, is 10 years. The findings of fact of the lower courts, and
which this Court has no reason to disturb, inescapably point to this
conclusion: immediately after the "Deed of Absolute Sale," a public
instrument dated January 10, 1938, had been executed by Sioco
Cariño in favor of his son, Guzman Cariño (the father of private
respondent), the latter immediately occupied the property; the 1940
directory of Baguio Telephones lists his residence at Camp 7, Baguio
City along with his telephone number; his permitting the use of portions
of the property to various third parties; his introduction of improvements
over the land in controversy; the testimonial accounts of his neighbors;
and that it was Guzman Cariño alone who declared for tax purposes
both the land and the improvements thereon in his name, while the tax
declarations of the other claimants made no reference to the subject
39
property. Although arguably Sioco Cariño may not have been the
owner of the subject property when he executed the "Deed of Absolute
Sale" in 1938 in favor of his son, the requirement of just title is
nonetheless satisfied, which means that the mode of transferring
ownership should ordinarily have been valid and true, had the grantor
40
been the owner. By the time the successors-in-interest of Ting-el
Dicman sought to establish ownership over the land in controversy by
filing their "Petition of the Heirs of Dicman to Reopen Civil Reservation
Case No. 1, G.L.R.O. 211" on April 24, 1959 with the trial court, and
which Guzman timely opposed, more than 20 years had already
elapsed. Thus, the 10-year period for acquisitive prescription is
deemed satisfied well before Guzman’s possession can be said to be
41
civilly interrupted by the filing of the foregoing petition to reopen. After
the dismissal of that case on July 28, 1978, Guzman Cariño was left
undisturbed in his possession of the subject property until his death on
August 19, 1982. His remains are buried on the land in question.
Thereafter, Guzman’s widow and son, herein private respondent,
continued possession of the subject property in the same manner.
When petitioners, heirs of Ting-el Dicman, tried to revive the case on
April 20, 1983, they had, far before that time, lost all rights to recover
possession or ownership.
5. Prescinding from the issue on prescription, the petitioners and their
predecessors-in-interest are nonetheless guilty of laches.
Laches has been defined as such neglect or omission to assert a right,
taken in conjunction with the lapse of time and other circumstances
causing prejudice to an adverse party, as will operate as a bar in
42
equity. It is a delay in the assertion of a right which works
43
disadvantage to another because of the inequity founded on some
44
change in the condition or relations of the property or parties. It is
45
based on public policy which, for the peace of society, ordains that
relief will be denied to a stale demand which otherwise could be a valid
46
claim. It is different from and applies independently of prescription.
While prescription is concerned with the fact of delay, laches is
concerned with the effect of delay. Prescription is a matter of time;
laches is principally a question of inequity of permitting a claim to be
enforced, this inequity being founded on some change in the condition
of the property or the relation of the parties. Prescription is statutory;
laches is not. Laches applies in equity, whereas prescription applies at
law. Prescription is based on a fixed time, laches is
47
not. Laches means 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 within a reasonable time, warranting the
presumption that the party entitled to assert it either has abandoned or
48
declined to assert it. It has been held that even a registered owner of
property under the Torrens Title system may be barred from recovering
49
possession of property by virtue of laches.
Given the foregoing findings of fact, all the four (4) elements of laches,
as prescribed by the decisions of this Court, are present in the case, to
wit:
1. a. Conduct on the part of the defendant, or of one under whom he
claims, giving rise to the situation of which complaint is made and for
which the complaint seeks a remedy;
2. b. Delay in asserting the complainant’s rights, the complainant
having had knowledge or notice, of the defendant’s conduct and having
been afforded an opportunity to institute a suit;
3. c. Lack of knowledge or notice on the part of the defendant that the
complainant would assert the right on which he bases his suit; and
d. Injury or prejudice to the defendant in the event relief is accorded to
50
the complainant, or the suit is not held to be barred.
As correctly held by the RTC, there is no evidence to the effect that
Ting-el Dicman or his successors-in-interest ever filed any action to
question the validity of the "Deed of Conveyance of Part Rights and
Interests in Agricultural Land" after its execution on October 22,
51
1928 despite having every opportunity to do so. Nor was any action
to recover possession of the property from Guzman Cariño instituted
anytime prior to April 24, 1959, a time when the period for acquisitive
prescription, reckoned from Guzman’s occupation of the property in
1938, had already transpired in his favor. No evidence likewise
appears on the record that Sioco Cariño or his Estate ever filed any
action to contest the validity of the "Deed of Absolute Sale" dated
52
January 10, 1938. Though counsel for the Estate of Sioco Cariño
tried to assail the deed as a forgery in the trial court, the attempt failed
and no appeal was lodged therefrom. It will be difficult for this Court to
assume that the petitioners and their predecessors were all the while
ignorant of the adverse possession of private respondent and his
predecessors given the publicity of their conduct and the nature of their
acts. Private respondent and his predecessors-in-interest were made
to feel secure in the belief that no action would be filed against them by
such passivity. There is no justifiable reason for petitioners’ delay in
asserting their rights—the facts in their entirety show that they have
slept on them. For over 30 years reckoned from the "Deed of
Conveyance of Part Rights and Interests in Agricultural Land" dated
October 22, 1928, or 20 years reckoned from the "Deed of Absolute
Sale" dated January 10, 1938, they neglected to take positive steps to
assert their dominical claim over the property. With the exception of
forgery, all other issues concerning the validity of the two instruments
abovementioned, as well as the averment that the former was in the
nature of a contract to sell, were issues raised only for the first time on
appeal and cannot therefore be taken up at this late a stage. The
features of this case are not new. The Court has on several occasions
held in particular that despite the judicial pronouncement that the sale
of real property by illiterate ethnic minorities is null and void for lack of
approval of competent authorities, the right to recover possession has
nonetheless been barred through the operation of the equitable
53
doctrine of laches.
6. Petitioners argue that Proclamation No. 628 issued by then
President Carlos P. Garcia on January 8, 1960 had the effect of
"segregating" and "reserving" certain Igorot claims identified therein,
including one purportedly belonging to the "Heirs of Dicman," and
prohibiting any encumbrance or alienation of these claims for a period
of 15 years from acquisition of patent. But by the time the Proclamation
had been issued, all rights over the property in question had already
been vested in private respondent. The executive issuance can only go
so far as to classify public land, but it cannot be construed as to
prejudice vested rights. Moreover, property rights may not be altered or
deprived by executive fiat alone without contravening the due process
54
guarantees of the Constitution and may amount to unlawful taking of
private property to be redistributed for public use without just
55
compensation.
The recognition, respect, and protection of the rights of indigenous
peoples to preserve and develop their cultures, traditions, and
institutions are vital concerns of the State and constitute important
public policies which bear upon this case. To give life and meaning
unto these policies the legislature saw it fit to enact Republic Act No.
8371, otherwise known as The Indigenous Peoples Rights Act of 1997,
as a culminating measure to affirm the views and opinions of
indigenous peoples and ethnic minorities
56
on matters that affect their life and culture. The provisions of that law
unify an otherwise fragmented account of constitutional, jurisprudential
and statutory doctrine which enjoins the organs of government to be
vigilant for the protection of indigenous cultural communities as a
57
marginalized sector, to protect their ancestral domain and ancestral
58
lands and ensure their economic, social, and cultural well-being, and
to guard their patrimony from those inclined to prey upon their
59
ignorance or ductility. As the final arbiter of disputes and the last
bulwark of the Rule of Law this Court has always been mindful of the
highest edicts of social justice especially where doubts arise in the
interpretation and application of the law. But when in the pursuit of the
loftiest ends ordained by the Constitution this Court finds that the law is
clear and leaves no room for doubt, it shall decide according to the
principles of right and justice as all people conceive them to be, and
with due appreciation of the rights of all persons concerned.
WHEREFORE, the instant petition is DENIED and the assailed
Decision and Resolution of the Court of Appeals are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 132007. August 5, 1998
SOLAR TEAM ENTERTAINMENT, INC., Petitioner, v. HON. HELEN
BAUTISTA RICAFORT,in her capacity as Presiding Judge of the
Regional Trial Court of Paraaque, Metro Manila (Branch 260),
TEAM IMAGE ENTERTAINMENT, INC., FELIX S. CO, JEFFREY C.
CAL, and KING CUISIA, Respondents.
DECISION
DAVIDE, JR., J.:
At issue is whether respondent judge committed grave abuse of
discretion amounting to lack or excess of jurisdiction in denying
petitioners motion to expunge private respondents answer with
counterclaims on the ground that said pleading was not served
personally; moreover, there was no written explanation as to why
personal service was not accomplished, as required by Section 11 of
Rule 13 of the 1997 Rules of Civil Procedure.
The antecedents are not disputed.
On 10 July 1997, Petitioner, as plaintiff, filed before the Regional Trial
Court (RTC) in Paraaque, Metro Manila, a complaint for recovery of
possession and damages with prayer for a writ of replevin against
1
herein private respondents. The case was docketed as Civil Case No.
97-0304 and was assigned to Branch 260 of said court, presided over
by public respondent Judge Helen Bautista-Ricafort.
Summonses and copies of the complaint were forthwith served on
private respondents. On 25 July 1997, their counsel filed a notice of
appearance with urgent ex-parte motion for extension of time to
2
plead, which the court granted in its order of 4 August
3
1997. cräläwvirtualibräry
On 8 August 1997, private respondents, as defendants, filed their
4
Answer (with Counterclaims). A copy thereof was furnished counsel
for petitioner by registered mail; however, the pleading did not contain
any written explanation as to why service was not made personally
upon petitioner-plaintiff, as required by Section 11 of Rule 13 of the
1997 Rules of Civil Procedure.
On 11 August 1997, petitioner filed a motion to expunge the Answer
(with Counterclaims) and to declare herein private respondents in
5
default, alleging therein that the latter did not observe the mandate of
the aforementioned Section 11, and that there was:
[A]bsolutely no valid reason why defendant[s] should not have
personally served plaintiffs ... counsel with [a] copy of their answer [as]
(t)he office of defendants (sic) counsel, Atty. Froilan Cabaltera, is just a
stone [sic] throw away from the office of [petitioners] counsel, with an
estimate (sic) distance of about 200 meters more or less.
Petitioner further alleged that the post office was about ten (10) times
farther from the office of Atty. Cabaltera.
6
On 15 August 1997, private respondents filed their opposition to the
above mentioned motion, alleging that petitioners rigid and inflexible
reliance on the provisions of Section 11, Rule 13 ... is an adventitious
resort to technicality and is contrary to Section 6 of Rule 3 ... which
admonishes that said Rules shall be liberally construed in order to
promote their objective in securing a just, speedy and inexpensive
disposition of [e]very action and proceeding; and that Section 11, Rule
13 notwithstanding, private respondents religiously complied with
[Section 5 of Rule 13] by personally present[ing] to the clerk of court
their said Answer ... furnishing a copy thereof to the counsel for
[petitioner] by way of registered mail.
On 8 September 1997, public respondent Judge Bautista-Ricafort
7
issued an order stating that under Section 11 of Rule 13 it is within the
discretion of the [trial court] whether to consider the pleading as filed or
not, and denying, for lack of merit, petitioners motion to expunge the
Answer (with Counterclaims) and to declare private respondents in
default.
8
Petitioner immediately moved for reconsideration of the order, but
public respondent Judge Bautista-Ricafort denied this motion in her
9
order of 17 November 1997. The order justified the denial in this wise:
Section 6 [of] Rule 1 of the 1997 Rules of Civil Procedure ordains that
the Rules shall be liberally construed in order to promote their objective
of securing a just, speedy and inexpensive disposition of every action
and proceeding.
Liberal construction of the rules and the pleading is the controlling
principle to effect substantial justice.
As pointed out by the Supreme Court in Alonso vs. Villamor, 16 Phil.
315, "the error in this case is purely technical. To take advantage of it
for other purposes than to cure it, does not appeal a fair sense of
justice. Its presentation as fatal to plaintiff a [sic] case smacks of skill
rather than right. A litigation is not a game of technicalities in which
one, more deeply schooled and skilled in the subtle art of movement
and position, entraps and destroys the other. It is rather, a contest in
which each contending party fully and fairly lays before the Court the
facts in issue and then, brushing aside as wholly trivial and indecisive
all imperfections or form of technicalities of procedure, asks that justice
be done upon the merits. Lawsuits, unlike duels, are not to be won by a
rapier's thrust."
While it is desirable that the above Rules be faithfully and even
meticulously observed, courts should not strict about procedural lapses
that do not really impair the proper administration of justice.
Furthermore, it is well settled that litigations should, as much as
possible be decided on their merits and not on technicalities.
Petitioner thus filed the instant special civil action of certiorari,
contending that public respondent Judge Bautista-Ricafort committed
grave abuse of discretion amounting to lack or excess of jurisdiction
when she admitted private respondents' "Answer (with Counterclaims)"
notwithstanding private respondents' clear, admitted and inexcusable
violation of Section 11, Rule 13 of the 1997 Rules of Civil Procedure, in
that: (a) the "Answer (with Counterclaims)" was not served personally
upon petitioners counsel despite the undisputed fact that the offices of
private respondents counsel and that of petitioners counsel are only
about 200 meters away from each other; and (b) the Answer did not
contain any explanation as to why the answer was not served
personally.
In their Comment, filed in compliance with the resolution of 2 February
1998, and to which petitioner filed a Reply, private respondents aver
that public respondent Judge Bautista-Ricafort correctly admitted
private respondents Answer (with Counterclaims) in light of Section 6,
Rule 1 of the 1997 Rules of Civil Procedure; that Section 11 of Rule 13
begins with the phrase whenever practicable, thereby suggesting that
service by mail may still be effected depending on the relative priority
of the pleading sought to be filed; and when service is not done
personally, it is more prudent and judicious for the courts to require a
written explanation rather than to expunge the pleading outright or
consider the same as not being filed.
In view of the importance of the issue raised, which is, undoubtedly,
one of the first impression, the Court resolved to give due course to the
petition and consider it submitted for decision on the basis of the
pleadings filed by the parties.
Section 5, Rule 13 of the 1997 Rules of Civil Procedure prescribes two employee is regularly present to receive pleadings, or where service is
modes of service of pleadings, motions, notices, orders, judgments and done on the last day of the reglementary period and the office of the
other papers, namely: (1) personal service; and (2) service by mail. adverse party or opposing counsel to be served is closed, for whatever
The first is governed by Section 6, while the second, by Section 7 of reason.
said Rule. If service cannot be done either personally or by mail,
substituted service may be resorted to under Section 8 thereof.
Returning, however, to the merits of this case, in view of the proximity
between the offices of opposing counsel and the absence of any
Pursuant, however, to Section 11 of Rule 13, service and filing of attendant explanation as to why personal service of the answer was
pleadings and other papers must, whenever practicable, be done not effected, indubitably, private respondents counsel violated Section
personally; and if made through other modes, the party concerned 11 of Rule 13 and the motion to expunge was prima facie meritorious.
must provide a written explanation as to why the service or filing was However, the grant or denial of said motion nevertheless remained
not done personally. The section reads: within the sound exercise of the trial courts discretion. Thus, as guided
by Section 6, Rule 1 of the 1997 Rules of Civil Procedure, which
ordains that the Rules shall be liberally construed in order to promote
SEC. 11. Priorities in modes of service and filing. -- Whenever
their objective of securing a just, speedy and inexpensive disposition of
practicable, the service and filing of pleadings and other papers shall
every action or proceeding, as well as by the dictum laid down
be done personally. Except with respect to papers emanating from the
in Alonso v. Villamor, 16 Phil. 315 [1910], the trial court opted to
court, a resort to other modes must be accompanied by a written
exercise its discretion in favor of admitting the Answer (with
explanation why the service or filing was not done personally. A
Counterclaims), instead of expunging it from the record.
violation of this Rule may be cause to consider the paper as not
filed.(n)
To our mind, if motions to expunge or strike out pleadings for violation
of Section 11 of Rule 13 were to be indiscriminately resolved under
Note that Section 11 refers to both service of pleadings and other
Section 6 of Rule 1 or Alonzo v. Villamor and other analogous cases,
papers on the adverse party or his counsel as provided for in Sections
then Section 11 would become meaningless and its sound purpose
6, 7 and 8; and to the filing of pleadings and other papers in court.
negated. Nevertheless, we sustain the challenged ruling of the trial
court, but for reasons other than those provided for in the challenged
Personal service and filing are preferred for obvious reasons. Plainly, order.
such should expedite action or resolution on a pleading, motion or
other paper; and conversely, minimize, if not eliminate, delays likely to
The 1997 Rules of Civil Procedure took effect only on 1 July 1997,
be incurred if service or filing is done by mail, considering the
while the questioned Answer (with Counterclaims) was filed only on 8
inefficiency of the postal service. Likewise, personal service will do th
August 1997, or on the 39 day following the effectivity of the 1997
away with the practice of some lawyers who, wanting to appear clever,
Rules. Hence, private respondents counsel may not have been fully
resort to the following less than ethical practices: (1) serving or filing
aware of the requirements and ramifications of Section 11, Rule 13. In
pleadings by mail to catch opposing counsel off-guard, thus leaving the
fact, as pointed out by petitioners counsel, in another case where
latter with little or no time to prepare, for instance, responsive
private respondents counsel was likewise opposing counsel, the latter
pleadings or an opposition; or (2) upon receiving notice from the post
similarly failed to comply with Section 11.
office that the registered parcel containing the pleading of or other
paper from the adverse party may be claimed, unduly procrastinating
before claiming the parcel, or, worse, not claiming it at all, thereby It has been several months since the 1997 Rules of Civil Procedure
causing undue delay in the disposition of such pleading or other took effect. In the interim, this Court has generally accommodated
papers. parties and counsel who failed to comply with the requirement of a
written explanation whenever personal service or filing was not
practicable, guided, in the exercise of our discretion, by the primary
If only to underscore the mandatory nature of this innovation to our set
objective of Section 11, the importance of the subject matter of the
of adjective rules requiring personal service whenever practicable,
case, the issues involved and the prima facie merit of the challenged
Section 11 of Rule 13 then gives the court the discretion to consider a
pleading. However, as we have in the past, for the guidance of the
pleading or paper as not filed if the other modes of service or filing
Bench and Bar, strictest compliance with Section 11 of Rule 13 is
were resorted to and no written explanation was made as to why
mandated one month from promulgation of this Decision.
personal service was not done in the first place. The exercise of
discretion must, necessarily, consider the practicability of personal
service, for Section 11 itself begins with the clause whenever WHEREFORE, the instant petition is DISMISSED considering that
practicable. while the justification for the denial of the motion to expunge the
Answer (with Counterclaims) may not necessarily be correct, yet, for
the reasons above stated, the violation of Section 11 of Rule 13 may
We thus take this opportunity to clarify that under Section 11, Rule 13
be condoned.
of the 1997 Rules of Civil Procedure, personal service and filing is the
general rule, and resort to other modes of service and filing, the
exception. Henceforth, whenever personal service or filing is No pronouncement as to costs.
practicable, in light of the circumstances of time, place and person,
personal service or filing is mandatory. Only when personal service or
SO ORDERED.
filing is not practicable may resort to other modes be had, which must
then be accompanied by a written explanation as to why personal
service or filing was not practicable to begin with. In adjudging the
plausibility of an explanation, a court shall likewise consider the
importance of the subject matter of the case or the issues involved
therein, and the prima facie merit of the pleading sought to be
expunged for violation of Section 11. This Court cannot rule otherwise,
lest we allow circumvention of the innovation introduced by the 1997
Rules in order to obviate delay in the administration of justice.

Here, the proximity between the offices of opposing counsel was

established; moreover, that the office of private respondents counsel
was ten times farther from the post office than the distance separating
the offices of opposing counsel. Of course, proximity would seem to
make personal service most practicable, but exceptions may
nonetheless apply. For instance, where the adverse party or opposing
counsel to be served with a pleading seldom reports to office and no
q. Motions
Rule 15 of the Rules of Court
RULE 15 MOTIONS
Section 1. Motion defined. - A motion is an application for
relief other than by a pleading. (1)
Section 2. Motions must be in writing. - All motions shall be
in writing except those made in open court or in the course of
a hearing or trial.
A motion made in open court or in the course of a hearing or
trial should immediately be resolved in open court after the
adverse party is given the opportunity to argue his or her
opposition thereto.
When a motion is based on facts not appearing on record,
the court may hear the matter on affidavits or depositions
presented by the respective parties, but the court may direct
that the matter be heard wholly or partly on oral testimony or
depositions. (2a)
Section 3. Contents. - Amotion shall state the relief sought to
be obtained and the grounds upon which it is based, and if
required by these Rules or necessary to prove facts alleged
therein, shall be accompanied by supporting affidavits and
other papers. (3)
[Section 4. Hearing of motion. - Deleted]
Section 4. Non-litigious motions. - Motions which the court
may act upon without prejudicing the rights of adverse
parties are non-litigious motions. These motions include:
a) Motion for the issuance of an alias summons;
b) Motion for extension to file answer;
c) Motion for postponement;
d) Motion for the issuance of a writ of execution;
e) Motion for the issuance of an alias writ of execution;
f) Motion for the issuance of a writ of possession;
g) Motion for the issuance of an order directing the sheriff to
execute the final certificate of sale; and
h) Other similar motions.
These motions shall not be set for hearing and shall be
resolved by the court within five (5) calendar days from
receipt thereof. (n)
Section 5. Litigious motions. - (a) Litigious motions include:
1) Motion for bill of particulars;
2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has been
filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
11) Motion for summary judgment;
12) Demurrer to evidence;
13) Motion to declare defendant in default; and
14) Other similar motions.
(b) All motions shall be served by personal service,
accredited private courier or registered mail. or electronic
means so as to ensure their receipt by the other party.
(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. (n)
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. (5a)
Section 7. Proof of service necessary. - No written motion
shall be acted upon by the court without proof of service
thereof, pursuant to Section 5(b) hereof. (6a)
Section 8. Motion day. - Except for motions requiring
immediate action, where the court decides to conduct
hearing on a litigious motion, the same shall be set on a
Friday. (7a)
Section 9. Omnibus motion. - Subject to the provisions of
[S]ection 1 of Rule 9, a motion attacking a pleading, order,
judgment, or proceeding shall include all objections then
available, and all objections not so included shall be deemed
waived. (8a)
Section 10. Motion for leave. - A motion for leave to file a
pleading or motion shall be accompanied by the pleading or
motion sought to be admitted. (9)
Section 11. Form. - The Rules applicable to pleadings shall
apply to written motions so far as concerns caption,
designation, signature, and other matters of form. (10)
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.

(b) Motion to hear affirmative defenses;

(c) Motion for reconsideration of the courts action on the

affirmative defenses;

(d) Motion to suspend proceedings without a temporary

restraining order or injunction issued by a higher court;

(e) Motion for extension of time to file pleadings, affidavits or

any other papers, except a motion for extension to file an
answer as provided by Section 11, Rule 11; and

(f) Motion for postponement intended for delay, except if it is

based on acts of God, force majeure or physical inability of
the witness to appear and testify. If the motion is granted
based on such exceptions, the moving party shall be warned
that the presentation of its evidence must still be terminated
on the dates previously agreed upon.

A motion for postponement, whether written or oral. shall. at

all times, be accompanied by the original official receipt from
the office of the clerk of court evidencing payment of the
postponement fee under Section 21 (b), Rule 14 L to be
submitted either at the time of the filing of said motion or not
later than the next hearing date. The clerk of court shall not
accept the motion unless accompanied by the original
receipt. (n)

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 plaintiffs 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. (5, R16)
G.R. No. L-40945 November 10, 1986
IGMEDIO AZAJAR, petitioner,
vs.
THE HONORABLE COURT OF APPEALS (Second Division) and
CHAM SAMCO & SONS, INC., respondents.
NARVASA, J.:
Petitioner seeks reversal of the Resolution of the respondent Court of
Appeals (now Intermediate Appellate Court) dated March 25, 1975
setting aside the judgment by default rendered against private
respondent by the Court of First Instance, and directing that said
respondent be allowed to file its answer to the complaint and after
joinder of issues, trial be had and judgment rendered on the merits.
This case originated from a complaint filed by petitioner Igmedio Azajar
against respondent Cham Samco and Sons, Inc. in the Court of First
1
Instance (now Regional Trial Court) of Camarines Sur. Azajar's claim,
briefly, is that he had purchased from defendant (hereafter referred to
simply as Cham Samco), thru the latter's agent, 100 Kegs of nails of
various sizes, specified in one of Cham Samco's printed order forms,
and had given to the agent P18,000.00 in fun payment thereof; but in
breach of contract, Cham Samco had offered to deliver only a part of
the quantity ordered.
Cham Samco filed a motion to dismiss on two grounds: (1) failure of
the complaint to state a cause of action-the complaint's language
indicating not a perfected sale but merely an "offer to buy by plaintiff
that was partly accepted by defendant," and failing to show that as
explicitly required by the order form prices had been confirmed by
2 plus interest in both instances, and the additional
Cham Samco's "Manila Office," and (2) that venue was improperly
laid-Cham Samco's invariable conditions in transactions of this nature,
as Azajar well knew from many such transactions in the past, being
3 P7,500.00 for attorney's fees and related
that "any legal action thereon must be instituted in the City of Manila.
The motion to dismiss contained a notice addressed to the Clerk of
Court reading as follows:
The Clerk of Court
Court of First Instance of Camarines Sur
Naga City
Sir:
Please submit the foregoing motion to the Court for its consideration
and resolution immediately upon receipt thereof.
Makati, Rizal for Naga City, February 4, 1974
(SGD) POLO S. PANTALEON
Copy furnished:
Atty. Augusta A. Pardalias
Naga City
4
NF-927
It is this notice that has given rise to the controversy at bar.
Contending that such a notice was fatally defective and rendered the
Motion to Dismiss incapable of to the period to answer, Azajar filed a
motion dated February 20, 1974 to declare Cham Samco in default,
which the Court granted. By Order dated February 22, 1974 the Court
pronounced Cham Samco in default and allowed Azajar to present
evidence ex parte. The Court justified the order of default in the wise:
On February 4, 1974, defendant thru counsel
instead of an answer to the complaint, filed a
"Motion to Dismiss" which, in legal contemplation,
is not a motion at an because the ."notice" therein
is directed to the Clerk of Court instead of to the
party concerned (as required by Section 5, Rule
15 of the Rules of Court) and is without the
requisite notice of time and place of hearing; that a
motion "with a notice of hearing (a) directed to the
Clerk of Court not to the parties; and (b) merely
stating that the same be "submitted for resolution
of the Honorable Court upon receipt thereof," copy
of which motion was duly furnished to and
received by "the adverse counsel is fatally
defective and did not toll the running of the period
to appeal" (Cladera v. Sarmiento, 39 SCRA 552).
Consequently, inasmuch as the "motion to dismiss
in this case is a mere scrap of paper because it is
without the requisite notice of time and place of
hearing (Manakil v. Hevilla, 42 Phil. 81; Roman
Catholic Bishop v. Unisan, 44 Phil. 866; Director of
Lands v. Sanz, 45 Phil. 117; and Manila Surety v.
Bath, 14 SCRA 435), the filing thereof did not
suspend the running ' of the period to file the
required responsive pleading. That from' February
4, 1974 to February 21, 1974, seventeen (17) days
had lapsed and defendant failed to file any
5
responsive pleading ...
Then on March 30, 1974, the Trial Court rendered judgment by default
against defendant Cham Samco ordering it:
... to deliver immediately to the plaintiff the nails
mentioned in the Order Form No. 9020 (Exhibit A);
(2) requiring defendant to pay plaintiff the sum of
P15,000.00 by way of actual damages, the sum of
P10,000.00 by way of consequential damages,
sum of P5,000.00, for exemplary damages; (3)
ordering defendant to pay plaintiff the sum of
expenses of litigation; and (4) to pay the costs.
Cham Samco filed a Motion for New Trial on April 9, 1974. It
contended that its failure to observe the rules governing notice of
motions was due to excusable negligence, "because the grounds
alleged in the Motion to Dismiss were all in such nature and character
that addressed themselves to a motu proprio resolution by the court
6
and thus rendered a hearing dispensable. It also alleged certain
defenses available to it which if duly alleged and proven, would
7
absolve it from any liability. This motion was denied.
Cham Samco went to the Court of Appeals on certiorari asserting that
the trial court acted with grave abuse of discretion amounting to lack of
jurisdiction in declaring it in default and then rendering judgment by
8
default. The petition was dismissed for lack of merit by the Court of
9
Appeals on November 20, 1974.
But on motion for reconsideration seasonably presented, the Court of
10
Appeals reversed itself. By Resolution dated March 25, 1975, it set
aside the Trial Court's order of default of February 22, 1974, judgment
by default of March 13, 1974, and Order dated June 4, 1974 denying
Cham Samco's motion for new trial, and directed the lower Court to
allow Cham Samco to file its answer to the complaint and upon due
joinder of issues, to try and decide the case on the merits.
The Court held that:
... (t)he notice in the motion which was addressed
to the clerk of court asking him to submit the
motion for the consideration of the court is a
substantial compliance with the provision of
section 3 Rule 16 of the Rules of Court. Verily
under the said rule, the Court has the alternative of
either hearing the case or deferring the hearing
and determination thereof until the trial on the
merits. Thus upon the filing of said motion the
court should have set the motion for hearing or
outrightly deny the motion, or otherwise postpone
 the hearing until the trial on the ground that the
grounds thereof do not appear to be indubitable.
The prompt filing and apparently valid grounds
invoked in the motion are not the acts and
declarations of a defaulting party.
... (E)ven assuming that the declaration of default
of the petitioner was in order we find that the trial
court committed a grave abuse of discretion when
it denied the motion for new trial that was filed by
the petitioner not only on the ground of excusable
negligence we have above discussed but also on
the ground that it has a meritorious defense. and
... (E)xcessive damages have been awarded to the
private respondent. In addition to ordering the
petitioner to deliver to the private respondent the
nails ordered by the latter, the petitioner was also
ordered to pay not only P15,000 actual damages
for profits that the private respondent could have
earned but also consequential damages of
P10,000 for the unrealized profits that the said
earnings and capital of the plaintiff could have
earned, plus interest in both instances, exemplary
damages of P5,000 and P7,500 for attorney's fees
and related expenses of litigation. Thus for the
capital of respondent of P18,100.00 in the
purchase of the nails, the petitioner was ordered to
pay damages of a total of P37,500.00, which
including the interest awarded can amount to over
P40,000, more than double the value of the said
investment of respondent. Under Section 1, Rule
37 of the Rules of Court award of excessive
damages could be a ground for new trial.
2) the further fact that its motion to dismiss was based on two grounds
on which a hearing was superfluous, the first, failure of the complaint to
state a cause of action, being determinable exclusively from the
allegations of the complaint and no evidence being allowable thereon;
and the second, that venue is improperly laid, being resolvable
17
exclusively on the basis of documents annexed to the motion.
These considerations, to be sure, did not erase movant's duty to give
notice to the adverse party of the date and time of the hearing on its
motion, the purpose of said notice being, as already stressed, not only
to give the latter time to oppose the motion if so minded, but also to
determine the time of its submission for resolution. Without such
notice, the occasion would not arise to determine with reasonable
certitude whether and within what time the adverse party would
respond to the motion, and when the motion might already be resolved
by the Court. The duty to give that notice is imposed on the movant,
not on the Court.
Withal the reasons for Cham Samco's erroneous notion of the
dispensability of a hearing on its motion to dismiss are not utterly
without plausibility. This circumstance, taken together with the fact,
found by the Intermediate Appellate Court and not disputed by
petitioner Azajar, that Cham Samco has meritorious defenses which if
proven would defeat Azajar's claim against it, and the eminent
desirability more than once stressed by this Court that 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
18
some procedural imperfections, all conduce to concurrence with the
Court of Appeals that "the ends of justice would be better served in this
case if we brush aside technicality and afford the petitioner its day in
court.
WHEREFORE, the Resolutions of the Court of Appeals appealed from,
are affirmed. Costs against petitioner.

The Court concluded its opinion with the observation that "the ends of
SO ORDERED.
justice would be better served in this case if we brush aside technicality
and afford the petitioner its day in court.

It was wrong, of course, for Cham Samco to have failed to set its
motion to dismiss for hearing on a specified date and time. The law
explicitly requires that notice of a motion shall be served by the
appellant to all parties concerned at least three (3) days before the
hearing thereof, together with a copy of the motion, and of any
11
affidavits and other papers accompanying it; and that the notice shag
be directed to the parties concerned, stating the time and place for the
12
hearing of the motion. The uniform holding of this Court has been
13
that a failure to comply with the requirement is a fatal flaw. Such
notice is required to avoid surprises upon the opposite party and give
the latter time to study and meet the arguments of the motion, as well
as to determine or make determinable the time of submission of the
14
motion for resolution.

Cham Samco quite frankly admits its error. It pleads however that
under the circumstances the error be not regarded as irremediable or
that it be deemed as constituting excusable negligence, warranting
relief. It argues that legal and logical considerations, which it took to be
tenable, caused it to theorize that a hearing on the motion was
dispensable. It also adverts to its position of affirmative defenses in
addition to those set out in its motion to dismiss which if ventilated and
established at the trial would absolve it from all liability under the
complaint.

Cham Samco's belief that it was not necessary that its motion to
dismiss be set for hearing was avowedly engendered by two factors,
namely:

1) the fact that while the Rules of Court "specify the motions which can
15
be heard only with prior service upon adverse parties, said Rules "do
not point out which written motions may be ex parte, preferring, it
appears, to leave to the court, in motions other than those specified,
the discretion either to ex parte resolve ... or to call the parties to a
16
hearing ...; and
A.M. No. RTJ-05-1896 April 29, 2005
ATTY. JULIUS NERI, Complainant,
vs.
JUDGE JESUS S. DE LA PEÑA, respondent.
RESOLUTION
CORONA, J.:
This is a case for grave misconduct, gross ignorance of the law and/or
incompetence filed by Atty. Julius Z. Neri against Judge Jesus S. de la
Peña. It originated from a civil case for damages filed by Emmanuel
Aznar against Citibank (which was represented by complainant as
counsel), docketed as Civil Case No. CEB-16474 and raffled to the
Regional Trial Court of Cebu, Branch XX, presided over by Judge
1
Ferdinand J. Marcos.
Plaintiff Aznar had filed suit due to the alleged blacklisting of his
Citibank Preferred Mastercard which, according to him, was
dishonored in several establishments in Singapore and Malaysia while
he was on holiday, causing him great inconvenience and
embarrassment. He presented, as evidence, several receipts, plane
tickets, a computer print-out allegedly showing that his card had been
declined for being "over limit", a statement of account and his lone
2
testimony. Defendant Citibank presented several documentary
exhibits to the effect that Aznar's card had not been placed on any "hot
3
list" and could not possibly have been blacklisted. After trial, Judge
4
Marcos dismissed the case for lack of merit.
Dissatisfied with the decision, Aznar filed through counsel a motion for
reconsideration, with motion to re-raffle the case. In an order dated
September 11, 1998, Acting Presiding Judge Ramon Codilla (who
succeeded Marcos), citing the fact that he was "occupied with two (2)
salas" and the fact that "the Presiding Judge who originally penned the
decision is a credit card holder of CITIBANK…whose membership
could naturally influence the outcome of this case in favor of the
defendant bank," directed the re-raffling of the case to RTC Cebu
Branch X, presided over by respondent Judge Jesus de la
5 In his rejoinder, respondent defended his appreciation of the ex
Peña. Respondent then ordered Citibank to file its comment on
6 parte manifestation. He likewise reiterated his claim that the
Aznar's motion for reconsideration. Citibank filed its opposition
instead. In an order dated November 25, 1998, respondent granted
Aznar's motion for reconsideration:
WHEREFORE, the Motion for Reconsideration is hereby
GRANTED. The DECISION dated May 29, 1998 is hereby
reconsidered, and consequently, the defendant is hereby
condemned liable to pay the following sums of money:
a) P10,000,000.00 as moral damages;
b) P 5,000,000.00 as exemplary damages;
c) P 1,000,000.00 as attorney's fees; and
d) P200,000.00 as litigation expenses.
7
SO ORDERED.
As a result of the Order, complainant filed this administrative case on
July 16, 1999, which was docketed as Control No. 41-99-P. Charging
respondent with dishonesty, he alleged that respondent, contrary to his
pronouncement in his order, had rendered his decision without ever
8
having read the transcripts of the case. To support this contention,
complainant presented certifications from the Clerk of Court of Branch
9 10
XX and the Clerk of Court of the RTC of Cebu City that the
transcripts of the case had remained in their custody and that the
respondent never borrowed them all throughout.
Complainant also charged respondent with gross ignorance of the law
and/or incompetence. He alleged that respondent had improperly
considered as a business record Aznar's computer print-out which in
reality did not meet the requisites to be rightly considered as such.
Aznar never testified as to the date and time the subject print-out was
encoded, or who encoded and printed the same, nor did he establish
personal knowledge of who prepared the print-out, or whether it was
prepared by one responsible for it in his professional capacity or in the
performance of his official duty or in the regular course of his business.
Finally, the person who prepared it did not testify in court or on
deposition.
Complainant went on to say that respondent's incompetence and
dishonesty showed in his failure to appreciate and evaluate Citibank's
extensive documentary evidence which clearly established that it did
not blacklist Aznar's Mastercard.
Finally, complainant pointed out that the damages respondent awarded
to plaintiff Aznar were scandalously exorbitant. He prayed for
respondent's dismissal from the service.
11
On September 3, 1999, respondent filed his comment. He principally
contended that, having appealed from his decision to the Court of
Appeals, the complainant should not have filed this administrative
case. Respondent decried complainant's case as forum-shopping. In
his defense, respondent asserted that he had in fact read the
transcripts, having received copies thereof attached to an ex
12
parte manifestation filed by plaintiff Aznar. He also defended the
amount of damages he awarded by comparing them to those awarded
in a 1973 case, with inflation taken into account.
13
Complainant then filed his reply to the comment, assailing the ex
parte manifestation which respondent had supposedly relied upon in
deciding the case. He pointed out that respondent should not have
even considered the said manifestation because Citibank had not been
served a copy and it was filed after office hours. He likewise refuted
respondent's allegations of forum-shopping and impropriety in filing an
administrative case while an appeal was pending.
14
administrative complaint should not have been filed with the appeal.
On February 28, 2001, the Second Division of this Court resolved to
hold the administrative case in abeyance until the final resolution of the
Court of Appeals of CA-GR CV No. 62554, Aznar v. Citibank. By this
15
time, the case had been re-docketed as AM No. 01-1131-RTJ.
On January 8, 2004, the Court of Appeals decided in favor of Citibank,
vacating respondent's decision and reinstating the dismissal of the
16
case by Judge Marcos. On June 8, 2004, complainant filed a
manifestation, with the Court of Appeals' decision attached, pointing
out that this administrative complaint was now ready for resolution.
In a manifestation dated June 14, 2004, respondent prayed for the
resolution of the case and once more asked for its dismissal. He cited
the fact that the Court of Appeals decision made no mention of his
administrative lapses and that his decision was an exercise of purely
judicial discretion. He also listed the various posts he had held as a
Regional Trial Court judge as well as the commendations he had
received from the Honorable Chief Justice. He also pointed out that
this administrative complaint was the only one ever filed against him in
all his years of service.
17
In a memorandum dated August 27, 2004, the Office of the Court
Administrator reported its findings.
Because respondent based his assailed order mostly on the ex
parte manifestation submitted by the counsel for plaintiff Aznar, the
OCA found him liable for violating Section 4, Rule 13, in relation to
Section 5, Rule 15 of the Revised Rules of Civil Procedure:
(Rule 13)
SEC. 4. Papers required to be filed and served. — Every
judgment, resolution, order, pleading subsequent to the
complaint, written motion, notice, appearance, demand, offer
of judgment or similar papers shall be filed with the court,
and served upon the parties affected.
(Rule 15)
SEC. 4. Hearing of motion. — Except for motions which the
court may act upon without prejudicing the rights of the
adverse party, every written motion shall be set for hearing
by the applicant.
According to the OCA, the fact that plaintiff Aznar had failed to serve a
copy of his ex parte manifestation upon Citibank should have been
reason enough for respondent to disregard the same.
Likewise noting the fact that the ex parte manifestation was filed
beyond office hours, the OCA found that this "created an idea that
there was a covert attempt to favor Aznar." However, citing the
absence of substantial evidence, it pointed out that "it should not be
presumed that the procedural lapse committed by respondent (was)
attended by corrupt motive of flagrant disregard of the rules." The OCA
also considered in respondent's favor his defense that he was merely
trying to help decongest the dockets. Finally, the OCA found the
charges of gross ignorance of law and incompetence to be without
basis, and found him liable instead for simple misconduct. The OCA
recommended a fine of P10,000.
We adopt part of the findings of the Court Administrator.
seriously afoul of the precepts of fair play, specially since respondent
only mentioned the document after this administrative case was filed
against him. Indeed, there seems to be something gravely amiss in
respondent's sense of fairness and righteousness, the primary
requisites of a good judge.
Furthermore, we cannot help but find extreme bias and bad intent in
respondent's award to Aznar of a whopping P16.2 million in damages
considering that, not having tried the case himself, the only records he
actually read came from no one else but Aznar himself. By itself, the
unconscionable amount of the award evinces indubitable malice on
respondent's part and the shady circumstances in which he granted it
show that he knowingly rendered a manifestly unjust decision.
As a member of the judiciary, respondent's every action is supposed to
be beyond reproach and above suspicion. The 2004 Code of Judicial
Conduct clearly states that "Judges shall avoid impropriety and the
21
appearance of impropriety in all of their activities." By acting on a
document which was sorely defective (for two reasons: failure to serve
a copy on the adverse party and failure to file it during office hours),
and by making an egregiously large award of damages in favor of
plaintiff Aznar, he inevitably opened himself up to suspicion of having
entered into a dirty, secret deal with Aznar and thereby severely
tarnished the impartiality with which he was at all times supposed to
conduct himself.
Given respondent's actions, we disagree with the OCA's findings of
simple misconduct. Because of the highly anomalous manner in which
respondent rendered his decision, as well as the questionable content
of the decision itself, which was eventually overturned by the Court of
Appeals, we find him guilty of knowingly rendering an unjust judgment
or order as determined by a competent court in an appropriate
22
proceeding.

The penalty for this offense ranges from a fine of P20,000, to

But we disagree with its finding that the respondent violated both Rules
13 and 15 of the 1997 Revised Rules of Civil Procedure.
Section 4, Rule 13 requires that adverse parties be served copies of all
pleadings and similar papers. Section 4, Rule 15 requires a movant to
set his motion for hearing, unless it is one of those which a court can
act upon without prejudicing the rights of the other party. The prevailing
doctrine in our jurisdiction is that a motion without a notice of hearing
18
addressed to the parties is a mere scrap of paper. In Cui v. Judge
19
Madayag, we held that "any motion that does not contain proof of
service of notice to the other party is not entitled to judicial cognizance.
(Such) motion is nothing but a (mere) scrap of paper." It is important,
however, to note that these doctrines refer exclusively to motions.
23
suspension from three to six months, to dismissal from the service. In
this case, the penalty of suspension for six months is appropriate, with
a warning that another such infraction of this nature will warrant a more
severe penalty.
WHEREFORE, Judge JESUS S. DE LA PEÑA is hereby found
GUILTY of knowingly rendering an unjust judgment or order as
determined by a competent court in an appropriate proceeding and is
hereby SUSPENDED from office for six months. Considering the
gravity of this offense, he is hereby warned that another infraction of
this kind will merit a penalty beyond mere suspension from public
office.

SO ORDERED.
The logic for such a requirement is simple: a motion invariably contains
a prayer which the movant makes to the court, which is usually in the
interest of the adverse party to oppose. The notice of hearing to the
adverse party is therefore a form of due process; it gives the other
party the opportunity to properly vent his opposition to the prayer of the
movant. In keeping with the principles of due process, therefore, a
motion which does not afford the adverse party the chance to oppose it
should simply be disregarded. The same principle applies to objections
to interrogatories which also require a notice of hearing like motions
20
under Section 3, Rule 25 of the Rules.

However, the same cannot be said for manifestations which, unless

otherwise indicated, are usually made merely for the information of the
court. There is generally nothing to contest or argue; the manifesting
party is just making a statement for the knowledge of the court, such as
in this case. There is nothing in either the Rules or in jurisprudence that
requires judges to disregard a manifestation that does not have proof
of service.

This is not to say, however, that respondent is off the hook. While it is
true that he was under no obligation to disregard Aznar's ex
parte manifestation, he should have at least called attention to its
irregularity, both by admonishing Aznar and by informing the adverse
party of its filing. That he acted on it — indeed, based his decision
on it — while Citibank was totally unaware of its existence ran

A.M. No. RTJ-04-1886 May 16, 2005
ALFREDO G. BOISER, complainant,
vs.
JUDGE JOSE Y. AGUIRRE, JR., REGIONAL TRIAL COURT,
BRANCH 55, HIMAMAYLAN CITY, NEGROS
OCCIDENTAL, respondent.
DECISION
CHICO-NAZARIO, J.:
1 Respectfully submitted to the Honorable Court our
The instant administrative case arose from the complaint of Alfredo G.
Boiser filed with the Office of the Court Administrator (OCA) charging
Judge Jose Y. Aguirre, Jr., Regional Trial Court (RTC) of Himamaylan
City, Negros Occidental, Branch 55, with Grave Abuse of Discretion
and Gross Ignorance of the Law.
Complainant Alfredo Boiser was the plaintiff in an ejectment case filed
before the Municipal Trial Court (MTC) of Himamaylan City, Negros
2 On 17 November 2004, we referred the case to Court of Appeals
Occidental. On 11 July 2003, the MTC rendered a decision in favor of
complainant, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendant as follows:
1) For the defendant to vacate subject land known
as Lot No. 2023 situated at Brgy. Candumarao,
Hinigaran, Negros Occiental, consisting of 5.5536
hectares leased by the plaintiff from Mary Nonasco
and Ofelia Donado, heirs of the registered owners,
the late spouses Narciso Gayares and Paz Nava,
and to peacefully turn over possession thereof to
the plaintiff;
2) For the defendant to pay plaintiff the amount of
P200,000.00 by way of actual damages;
3) For defendant to pay plaintiff attorney’s fees in
the amount of P10,000.00 plus P1,000.00 as
appearance fee and to pay the cost.
The writ of preliminary injunction issued by the Court is
hereby ordered dismissed.
The case was appealed to the RTC of Negros Occidental, Branch 55.
On 15 October 2003, defendant-appellant Salvador Julleza filed a
motion to release bond on the ground that the MTC of Hinigaran,
Negros Occidental, in its decision dated 11 July 2003, had already
resolved the writ of preliminary injunction without mentioning the
applicant’s liability.
3 during the pendency of his case. The court retains its
On 16 October 2003, respondent judge granted the motion.
Complainant alleged that the issuance by respondent judge of the
Order dated 16 October 2003 is indicative of his ignorance of the law
considering that the motion did not state that he was furnished a copy
of the motion thereby depriving him of his right to due process. He also
averred that the motion was a mere scrap of paper for failure to state
the time and date of hearing. He further alleged that respondent
manifested gross ignorance when he resolved to grant the motion to
release the injunction bond considering that the same was meant to
answer for damages that he may suffer due to defendant’s continued
illegal possession of the land.
4 under the situation.
On 15 January 2004, the OCA required respondent to file his
comment.
5
In his comment dated 12 February 2004, respondent judge maintained
that the filing of the administrative complaint against him is hasty and
uncalled for. He said there must have been a miscommunication
between the complainant and his counsel because had either of them
exerted effort to find out the result of the appealed case, they would
have discovered that he affirmed in toto the decision of the lower court
in favor of the complainant.
6
On 14 April 2004, complainant filed a motion to withdraw complaint.
7
On 3 August 2004, the OCA submitted its recommendation, thus:
recommendation that this administrative case be RE-
DOCKETED as a regular administrative matter and that
respondent Judge Jose Y. Aguirre, Jr., be FINED in the
amount of P21,000.00 for Gross Ignorance of the Law and
be STERNLY WARNED that a repetition of the same or
similar acts will be dealt with more severely.
8
Justice Monina Zenarosa for investigation, report and investigation.
Consequently, the case was scheduled for preliminary conference on
17 February 2005. On the said date, complainant Alfredo Boiser, with
his counsel Atty. Salvador Sabio, and respondent judge appeared.
During the preliminary conference, Atty. Sabio manifested that the
complainant had already filed his motion to withdraw the complaint and
was no longer interested in pursuing the case. On the other hand,
respondent judge manifested he had retired from the service as of 01
November 2004 and is now appearing as a private citizen. He further
informed the court that he was submitting the case without further
comment as he had already filed his comment to the complaint.
After investigation, Justice Zenarosa submitted her
9
report recommending the dismissal of the complaint.
Prefatorily, the Court must reiterate the rule that mere desistance on
the part of the complainant does not warrant the dismissal of an
administrative complaint against any member of the bench. The
withdrawal of complaints cannot divest the Court of its jurisdiction nor
strip it of its power to determine the veracity of the charges made and
to discipline, such as the results of its investigation may warrant, an
erring respondent. The court’s interest in the affairs of the judiciary is a
10
paramount concern that must not know bounds.
Anent respondent’s retirement on 01 November 2004, it has been
settled that the Court is not ousted of its jurisdiction over an
administrative case by the mere fact that the respondent public official
11
ceases to hold office during the pendency of respondent’s case. This
12
was expounded in the case of Perez v. Abiera, cited in the case
13
of Judge Rolando G. How v. Teodora Ruiz, et. al., thus:
[T]he jurisdiction that was Ours at the time of the filing of the
administrative complaint was not lost by the mere fact that
the respondent public official had ceased to be in office
jurisdiction either to pronounce the respondent official
innocent of the charges or declare him guilty thereof. A
contrary rule would be fraught with injustices and pregnant
with dreadful and dangerous implications. x x x If only for
reasons of public policy, this Court must assert and maintain
its jurisdiction over members of the judiciary and other
officials under its supervision and control for acts performed
in office which are inimical to the service and prejudicial to
the interests of litigants and the general public. If innocent,
respondent official merits vindication of his name and
integrity as he leaves the government which he served well
and faithfully; if guilty, he deserves to receive the
corresponding censure and a penalty proper and imposable
We shall now discuss respondent’s liability relative to the lack of notice
of hearing and proof of service of the questioned motion.
The Rules of Court requires that every motion must be set for hearing
by the movant, except those motions which the court may act upon
without prejudicing the rights of the adverse party. The notice of
hearing must be addressed to all parties and must specify the time and
date of the hearing, with proof of service. Sections 4, 5 and 6 of Rule
15 of the 1997 Rules on Civil Procedure provide:
SECTION 4. Hearing of motion.- Except for motions which
the court may act upon without prejudicing the rights of the
adverse party, every written motion shall be set for hearing
by the applicant.
Every written motion required to be heard and the notice of
the hearing thereof shall be served in such a manner as to
ensure its receipt by the other party at least three (3) days
before the date of hearing, unless the court for good cause
sets the hearing on shorter notice.
SEC. 5. Notice of hearing.- The notice of hearing shall be
addressed to all parties concerned, and shall specify the
time and date of the hearing which must not be later than ten
(10) days after the filing of the motion.
SEC. 6. Proof of service necessary.- No written motion set
for hearing shall be acted upon by the court without proof of
service thereof.
It appears that the Motion to Release Bond was defective as it did not
have a proper notice of hearing. The date and time of the hearing were
not specified. Neither complainant nor his counsel was furnished a
copy thereof. These were never controverted by respondent judge.
A motion without notice of hearing is pro forma, a mere scrap of paper.
It presents no question which the court could decide. The court has no
reason to consider it and the clerk has no right to receive it. The
rationale behind the rule is plain: unless the movant sets the time and
place of hearing, the court will be unable to determine whether the
adverse party agrees or objects to the motion, and if he objects, to
hear him on his objection, since the rules themselves do not fix any
14
period within which he may file his reply or opposition. The objective
of the rule is to avoid a capricious change of mind in order to provide
15
due process to both parties and ensure impartiality in the trial.
and notice of hearing requirements, and was sentenced to
pay a fine of Five Thousand (P5,000.00) Pesos with a stern
warning that repetition of the same or similar acts in the
future will be dealt with more severely.
24
2. In Espino v. Salubre, the court found respondent judge
guilty of gross ignorance of the law and was sentenced to
pay a fine of Five Thousand Pesos (P5,000.00), when
respondent judge continued with the investigation and
subsequent issuance of a warrant of arrest against
complainant notwithstanding that the records of the case had
been transmitted to the provincial fiscal and an information
has already been filed in court.
3. In Josefina M. Villanueva v. MTC Judge Benjamin E.
25
Almazan, the court found respondent judge guilty of gross
ignorance of the law and was sentenced to pay a fine of Five
Thousand Pesos (P5,000.00), with stern warning that a
repetition of the same or similar act shall be dealt with more
severely, when he conducted a preliminary investigation in a
case cognizable by the Municipal Trial Court.
4. In Acting Solicitor General Romeo de la Cruz v. Judge
26
Carlito A. Eisma, RTC, Branch 13, Zamboanga City, a fine
of P5,000.00 was imposed on the respondent judge for gross
ignorance of the law and abuse of authority, for preventing
the execution of the decision of the RTC, Branch 17, a court
of equal rank and jurisdiction.
Ignorance of the law, which everyone is bound to know, excuses no
27
one - much more so judges. It is a truism that the life chosen by a
judge as a dispenser of justice is one which is demanding. By virtue of
the delicate position which he occupies in the society, he is duty bound
28
to be the embodiment of competence and integrity. Because of this, a
judge who is not knowledgeable of the law which he is obligated to
implement will not be able to live up to the judiciary’s exacting
29
standards.
WHEREFORE, the Court finds Judge Jose Y. Aguirre, Jr., of the
Regional Trial Court of Negros Occidental, Branch 55, guilty of gross
ignorance of the law, and hereby imposes on him a fine of FIVE
THOUSAND PESOS (P5,000.00) to be deducted from his retirement
benefits.

Also, without proof of service to the adverse party, a motion is nothing

16 SO ORDERED.
but an empty formality deserving no judicial cognizance. The rule
mandates that the same shall not be acted upon by the court. Proof of
17
service is mandatory.

As can be seen the law involved is simple and elementary, lack of

conversance therewith constitutes gross ignorance of the law. Judges
are expected to exhibit more than just cursory acquaintance with
statutes and procedural laws. They must know the laws and apply
18
them properly in all good faith. Judicial competence requires no less.

Clearly, respondent judge had ignored a fundamental rule. He acted

too precipitately in granting defendant’s motion despite the absence of
the requirements as above prescribed. As a judge, Judge Aguirre is
expected to keep abreast of laws and prevailing
19
jurisprudence. Unfamiliarity with the rules is a sign of incompetence.
Basic rules must be at the palm of his hand. A judge must be
acquainted with legal norms and precepts as well as with procedural
20
rules. When a judge displays utter lack of familiarity with the rules, he
21
erodes the confidence of the public in the courts. Ignorance of the law
22
by a judge can easily be the mainspring of injustice.

Thus, in the following cases a fine of Five Thousand Pesos was

imposed:

23
1. In Mutilan v. Adiong, A.M. No. RTJ-00-1581, 2 July
2002, 383 SCRA 513, the Court found respondent judge
guilty of gross ignorance of the law for granting a motion for
garnishment without compliance with the proof of service
A.M. No. RTJ-05-1921 September 30, 2005 Orders dated September 3 and October 4, 2002 and dismissing the
complaint in Civil Case No. 364-0-2002 for declaration of marriage for
improper venue.
(Formerly OCA IPI No. 04-1973-RTJ)

Harlinghausen filed a motion for reconsideration, but it was denied by

MA. TERESA H. DE JESUS, Complainant,
the Appellate Court. He then filed with this Court a petition for review
vs.
on certiorari, docketed as G.R. No. 158333. In a Resolution of June 23,
2003, we denied the petition for his failure to show that the Court of
vs.
Appeals committed a reversible error. Upon finality of our Resolution
JUDGE RENATO J. DILAG, PRESIDING JUDGE, REGIONAL TRIAL
on August 12, 2003, an Entry of Judgment was made on October 3,
COURT, BRANCH 73, OLONGAPO CITY, Respondent. 5
2003.

DECISION
SANDOVAL-GUTIERREZ, J:
1 served upon the adverse party three (3) days before the hearing; and
In a complaint dated February 4, 2004 filed with the Office of the Court
Administrator (OCA), complainant Maria Teresa H. De Jesus charged
respondent Judge Renato J. Dilag of the Regional Trial Court of
Olongapo City, Branch 73, with gross ignorance of the law, rendering
unjust orders, abuse of authority and misuse of court processes.
Complainant alleged inter alia that on August 26, 2002, her husband
Wolfgang Heinrich Konrad Harlinghausen (Harlinghausen) filed a
petition for declaration of nullity of their marriage with the Regional Trial
Court of Olongapo City, Branch 73, docketed as Civil Case No. 364-0-
2002.
On August 27, 2002, Harlinghausen, through counsel, filed an "Urgent
Ex-Parte Motion to Preserve Properties to be Collated." On the same
2 considering that the conjugal funds are being misappropriated by
day, respondent judge issued an Order setting the hearing of the
motion on August 30, 2002.
Complainant now contends that respondent judge, in issuing the Order
of September 3, 2002 granting Harlinghausen’s Urgent Ex-Parte
Motion to Preserve Properties to be Collated, is ignorant of the law and
abused his authority. The motion lacks the notice of hearing to be
proof of service of the motion upon the adverse party.
Complainant further contends that in issuing the Order dated October
4, 2002 directing the BID to allow Harlinghausen to enter this country,
respondent judge abused his authority and misused court processes.
In his comment, respondent judge explained that he did not disregard
the basic procedural rules. Although the Urgent Ex-Parte Motion to
Preserve Properties to be Collated lacks a notice of hearing,
nevertheless he set the motion for hearing to enable the adverse party,
herein complainant, to participate therein or to file an opposition.
Besides, the Rules allow him to act upon an ex-parte motion requiring
"quick action," like the motion before him. There was urgency
complainant. Moreover, he conducted clarificatory hearing. At any rate,
his questioned Order is not tainted with "bad faith or fraud."

On August 29, 2002, complainant received summons in Civil Case No. With respect to the Order of October 4, 2002, respondent judge
364-0-2002. Forthwith, she filed a motion to dismiss the complaint on
explained that he did not overstep his jurisdiction. He recognized the
the ground of improper venue. This was denied by respondent judge.
authority of the BID. In fact, he stated in his questioned Order that it is
without prejudice to the authority of the BID over Harlinghausen.
On August 30, 2002, respondent judge considered the "Urgent Ex-
Parte Motion to Preserve Properties to be Collated" submitted for
In his Report and Recommendation, Court Administrator Presbitero J.
resolution after hearing the testimonies of Harlinghausen’s attorney-in- Velasco, Jr. stated inter alia that:
fact, Harry E. Joost, and his counsel of record, Atty. Edmundo S.
Carian.
"A thorough examination of the instant case reveals abuse of authority
3 bordering on gross ignorance of the law. Records show that, relative to
On September 3, 2002, respondent judge issued an Order granting
the petition for declaration of nullity of marriage, respondent Judge
the urgent ex-parte motion and placing under legal custody the
issued at least two orders that were bluntly nullified by the appellate
properties enumerated therein. The Register of Deeds of Tarlac, court. The rules and principles ignored were so basic, and haste was
among others, was directed to annotate the Order on the 62 land titles
characteristically palpable from the incidents.
allegedly purchased by Harlinghausen’s wife using his money without
his consent.
xxx
On October 2, 2002, Harlinghausen, through counsel, filed another Ex-
Parte Motion praying for the issuance of an Order directing the Bureau Likewise, respondent cannot take shield from the fact that his assailed
of Immigration and Deportation (BID) to allow him to enter this country orders were already set aside by the appellate court through the proper
in order to prosecute his petition for declaration of nullity of marriage. judicial remedies. Precisely, his cited jurisprudence itself explicitly
states, ‘It is only after the available judicial remedies have been
exhausted or when the appellate tribunal have spoken with finality that
On October 4, 2002, respondent judge issued an Order granting
the door to an inquiry to his administrative liability may be said to have
Harlinghausen’s Ex-Parte Motion.
opened or closed.’ A display of haste and disregard of basic rules is a
norm incompatible with the prudent attitude and sobriety expected of a
Eventually, complainant filed with the Court of Appeals a petition good judge."
for certiorari assailing respondent judge’s Order dated September 3,
2002 granting Harlinghausen’s Urgent Ex-Parte Motion to Preserve He recommended that:
Properties to be Collated; Order dated October 4, 2002 granting his
Urgent Ex-Parte Motion to enter this country; and Order denying her
(complainant’s) motion to dismiss the complaint for improper venue. "1. The instant complaint be RE-DOCKETED as a regular
Complainant averred that in issuing the challenged Orders, respondent administrative matter;
judge acted with grave abuse of discretion tantamount to lack or
excess of jurisdiction. The petition was docketed as CA-G.R. SP No.
2. The respondent Judge, for abuse of authority and gross ignorance of
74167.
the law, be accordingly meted a FINE in the amount of twenty
thousand pesos (₱20,000.00) with a WARNING that future similar
On February 20, 2003, the Court of Appeals rendered a infractions shall be dealt with more severely."
4
Decision granting complainant’s petition, declaring void the assailed
 6
In our Resolution dated January 24, 2005, we required the parties to
manifest whether they are submitting the case for resolution on the
basis of the pleadings and records filed.
Subsequently, both parties submitted their respective Manifestations
stating their willingness to submit the case for decision based on the
records.
On the challenged Order of September 3, 2002, Sections 4, 5 and 6,
Rule 15 of the 1997 Rules of Civil Procedure, as amended, are
pertinent, thus:
While it is true that the Court of Appeals has set aside the questioned
twin Orders, the fact remains that respondent judge has shown his
ignorance of both substantive and procedural laws which warrants an
administrative sanction.
The Court recognizes that "not every judicial error bespeaks ignorance
of the law and that, if committed in good faith, does not warrant
administrative sanction, but only in cases within the parameters of
tolerable misjudgment. Where, however, the procedure is so simple
and the facts so evident as to be beyond permissible margins of error,
11
as in this case, to still err thereon amounts to ignorance of the law."

In this case, respondent judge displayed a deplorable deficiency in his

SECTION 4. Hearing of motion. – Except for motions which the court
grasp of the basic principles governing motions, specifically, the three-
may act upon without prejudicing the rights of the adverse party, every
day notice rule and the requisite proof of service. Also, he showed his
written motion shall be set for hearing by the applicant.
utter lack of knowledge and understanding of our immigration laws.

Every written motion required to be heard and the notice of the hearing
As an advocate of justice and a visible representation of the law, a
thereof shall be served in such a manner as to ensure its receipt by the
judge is expected to keep abreast with and be proficient in the
other party at least three (3) days before the date of hearing, unless 12
application and interpretation of the law. When the law is sufficiently
the court for good cause sets the hearing on shorter notice.
basic, as what is involved in the present case, a judge owes it to his
office to simply apply it; anything less than that would be gross
13
SECTION 5. Notice of hearing. – The notice of hearing shall be ignorance of the law.
addressed to all parties concerned, and shall specify the time and date
of the hearing which must not be later than ten (10) days after the filing 14
In Tugot v. Coliflores, we held that judicial competence demands that
of the motion.
judges should be proficient in both procedural and substantive aspects
of the law. Anything less than this strict standard would subject them to
SECTION 6. Proof of service necessary. – No written motion set for administrative sanction.
hearing shall be acted upon by the court without proof of service
thereof.
It is imperative that judges be conversant with basic legal principles.
The Code of Judicial Conduct, in fact, enjoins judges to "be faithful to
15
Obviously, respondent judge blatantly disregarded the above the law and maintain professional competence."
provisions. Instead of denying the motion outright for being manifestly
defective, he granted the same. While he set the motion for hearing,
Under Section 1, Rule 140 of the Revised Rules of Court on the
still the three-day notice was not observed, thus complainant failed to
Discipline of Justices and Judges, gross ignorance of the law is
attend the hearing. Clearly, she was deprived of her right to due
classified as a serious charge punishable by either dismissal from the
process.
service, suspension from office or a fine of more than ₱20,000.00 but
not exceeding ₱40,000.00.
When a judge fails to consider so basic and elemental a rule, a law, or
a principle in the discharge of his duties, he is either too incompetent
We believe that an imposition of ₱30,000.00 fine upon respondent
and undeserving of his position, or is too vicious that the oversight or
judge is in order.
omission was deliberately done in bad faith and in grave abuse of
7
judicial authority. In both instances, the judge’s dismissal is in order.
WHEREFORE, respondent Judge Renato J. Dilag is hereby
found GUILTY of gross ignorance of the law and is
Likewise, respondent’s failure to afford complainant the opportunity to
ordered to pay a FINE of THIRTY THOUSAND PESOS (₱30,000.00)
be heard as a matter of due process of law deserves administrative
8 upon notice.
sanction.

SO ORDERED.
Relative to the challenged Order dated October 4, 2002, respondent
judge shows his ignorance of the Philippine Immigration Act of 1940,
as amended. This law confers upon the Commissioner of the BID, to
the exclusion of the courts of justice, the power and authority to
enforce its provisions, specifically the admission of foreigners to this
country.

9
We sustain the observation of the Court of Appeals that the Order of
respondent judge directing the BID to allow the entry of Harlinghausen
to this country would effectively countermand the order of
10
detention issued by the BID and "constitutes an intrusion into its
prerogatives as regards the entry, admission, exclusion, registration,
repatriation, monitoring and deportation of foreigners within our
national territory."

In his desperate attempt to evade administrative sanction, respondent

judge maintains that since complainant has already resorted to a
proper remedy, i.e., by filing a petition for certiorari with the Court of
Appeals questioning his twin Orders, she is barred from filing the
instant administrative complaint involving the same Orders. He cited
our ruling in Hilario vs. Ocampo III, 371 SCRA 260 (2001) that "where
some judicial means is available, an administrative complaint is not the
appropriate remedy for an act of a judge deemed aberrant or irregular."
II. Basic Legal Forms
A. Forms for Contracts
a. Extra-Judicial Settlement – Secs. 1 and 2, Rule 74
of the Rules of Court
Section 1. Extrajudicial settlement by agreement between
heirs. — If the decedent left no will and no debts and the
heirs are all of age, or the minors are represented by their
judicial or legal representatives duly authorized for the
purpose, the parties may without securing letters of
administration, divide the estate among themselves as they
see fit by means of a public instrument filed in the office of
the register of deeds, and should they disagree, they may do
so in an ordinary action of partition. If there is only one heir,
he may adjudicate to himself the entire estate by means of
an affidavit filled in the office of the register of deeds. The
parties to an extrajudicial settlement, whether by public
instrument or by stipulation in a pending action for partition,
or the sole heir who adjudicates the entire estate to himself
by means of an affidavit shall file, simultaneously with and as
a condition precedent to the filing of the public instrument, or
stipulation in the action for partition, or of the affidavit in the
office of the register of deeds, a bond with the said register
of deeds, in an amount equivalent to the value of the
personal property involved as certified to under oath by the
parties concerned and conditioned upon the payment of any
just claim that may be filed under section 4 of this rule. It
shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within two
(2) years after the death of the decedent.
The fact of the extrajudicial settlement or administration shall
be published in a newspaper of general circulation in the
manner provided in the nest succeeding section; but no
extrajudicial settlement shall be binding upon any person
who has not participated therein or had no notice thereof.
Section 2. Summary settlement of estate of small value. —
Whenever the gross value of the estate of a deceased
person, whether he died testate or intestate, does not
exceed ten thousand pesos, and that fact is made to appear
to the Court of First Instance having jurisdiction of the estate
by the petition of an interested person and upon hearing,
which shall be held not less than one (1) month nor more
than three (3) months from the date of the last publication of
a notice which shall be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in
the province, and after such other notice to interest persons
as the court may direct, the court may proceed summarily,
without the appointment of an executor or administrator, and
without delay, to grant, if proper, allowance of the will, if any
there be, to determine who are the persons legally entitled to
participate in the estate, and to apportion and divide it
among them after the payment of such debts of the estate as
the court shall then find to be due; and such persons, in their
own right, if they are of lawful age and legal capacity, or by
their
guardians or trustees legally appointed and qualified, if
otherwise, shall thereupon be entitled to receive and enter
into the possession of the portions of the estate so awarded
to them respectively. The court shall make such order as
may be just respecting the costs of the proceedings, and all
orders and judgments made or rendered in the course
thereof shall be recorded in the office of the clerk, and the
order of partition or award, if it involves real estate, shall be
recorded in the proper register's office.
b. Affidavit of Self-Adjudication
c. Deed of Sale of Registered Land
d. Contract of Lease with right of first refusal
e. Deed of Donation – Article 725 to 773 of the Civil
Code
TITLE III
DONATION
CHAPTER 1
Nature of Donations
Article 725. Donation is an act of liberality whereby a person
disposes gratuitously of a thing or right in favor of another,
who accepts it. (618a)
Article 726. When a person gives to another a thing or right
on account of the latter's merits or of the services rendered
by him to the donor, provided they do not constitute a
demandable debt, or when the gift imposes upon the donee
a burden which is less than the value of the thing given,
there is also a donation. (619)
Article 727. Illegal or impossible conditions in simple and
remuneratory donations shall be considered as not imposed.
(n)
Article 728. Donations which are to take effect upon the
death of the donor partake of the nature of testamentary
provisions, and shall be governed by the rules established in
the Title on Succession. (620)
Article 729. When the donor intends that the donation shall
take effect during the lifetime of the donor, though the
property shall not be delivered till after the donor's death, this
shall be a donation inter vivos. The fruits of the property from
the time of the acceptance of the donation, shall pertain to
the donee, unless the donor provides otherwise. (n)
Article 730. The fixing of an event or the imposition of a
suspensive condition, which may take place beyond the
natural expectation of life of the donor, does not destroy the
nature of the act as a donation inter vivos, unless a contrary
intention appears. (n)
Article 731. When a person donates something, subject to
the resolutory condition of the donor's survival, there is a
donation inter vivos. (n)
Article 732. Donations which are to take effect inter vivos
shall be governed by the general provisions on contracts and
obligations in all that is not determined in this Title. (621)
Article 733. Donations with an onerous cause shall be
governed by the rules on contracts and remuneratory
donations by the provisions of the present Title as regards
that portion which exceeds the value of the burden imposed.
(622)
Article 734. The donation is perfected from the moment the
donor knows of the acceptance by the donee. (623)
CHAPTER 2
Persons Who May Give or Receive a Donation
Article 735. All persons who may contract and dispose of
their property may make a donation. (624)
Article 736. Guardians and trustees cannot donate the
property entrusted to them. (n)
Article 737. The donor's capacity shall be determined as of
the time of the making of the donation. (n)
Article 738. Al those who are not specially disqualified by
law therefor may accept donations. (625)
Article 739. The following donations shall be void:
(1) Those made between persons who were guilty of
adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of the same
criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants
and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of
nullity may be brought by the spouse of the donor or donee;
and the guilt of the donor and donee may be proved by
preponderance of evidence in the same action. (n)
Article 740. Incapacity to succeed by will shall be applicable
to donations inter vivos. (n)
Article 741. Minors and others who cannot enter into a
contract may become donees but acceptance shall be done
through their parents or legal representatives. (626a)
Article 742. Donations made to conceived and unborn
children may be accepted by those persons who would
legally represent them if they were already born. (627)
Article 743. Donations made to incapacitated persons shall
be void, though simulated under the guise of another
contract or through a person who is interposed. (628)
Article 744. Donations of the same thing to two or more
different donees shall be governed by the provisions
concerning the sale of the same thing to two or more
different persons. (n)
Article 745. The donee must accept the donation personally,
or through an authorized person with a special power for the
purpose, or with a general and sufficient power; otherwise,
the donation shall be void. (630)
Article 746. Acceptance must be made during the lifetime of
the donor and of the donee. (n)
Article 747. Persons who accept donations in representation
of others who may not do so by themselves, shall be obliged
to make the notification and notation of which article 749
speaks. (631)
Article 748. The donation of a movable may be made orally
or in writing.
An oral donation requires the simultaneous delivery of the
thing or of the document representing the right donated.
If the value of the personal property donated exceeds five
thousand pesos, the donation and the acceptance shall be
made in writing. Otherwise, the donation shall be void.
(632a)
Article 749. In order that the donation of an immovable may
be valid, it must be made in a public document, specifying
therein the property donated and the value of the charges
which the donee must satisfy.
The acceptance may be made in the same deed of donation
or in a separate public document, but it shall not take effect
unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the
donor shall be notified thereof in an authentic form, and this
step shall be noted in both instruments. (633)
CHAPTER 3
Effect of Donations and Limitations Thereon
Article 750. The donation may comprehend all the present
property of the donor, or part thereof, provided he reserves,
in full ownership or in usufruct, sufficient means for the
support of himself, and of all relatives who, at the time of the
acceptance of the donation, are by law entitled to be
supported by the donor. Without such reservation, the
donation shall be reduced in petition of any person affected.
(634a)
Article 751. Donations cannot comprehend future property.
By future property is understood anything which the donor
cannot dispose of at the time of the donation. (635)
Article 752. The provisions of article 750 notwithstanding, no
person may give or receive, by way of donation, more than
he may give or receive by will.
The donation shall be inofficious in all that it may exceed this
limitation. (636)
Article 753. When a donation is made to several persons
jointly, it is understood to be in equal shares, and there shall
be no right of accretion among them, unless the donor has
otherwise provided.
The preceding paragraph shall not be applicable to
donations made to the husband and wife jointly, between
whom there shall be a right of accretion, if the contrary has
not been provided by the donor. (637)
Article 754. The donee is subrogated to all the rights and
actions which in case of eviction would pertain to the donor.
The latter, on the other hand, is not obliged to warrant the
things donated, save when the donation is onerous, in which
case the donor shall be liable for eviction to the concurrence
of the burden.
The donor shall also be liable for eviction or hidden defects
in case of bad faith on his part. (638a)
Article 755. The right to dispose of some of the things
donated, or of some amount which shall be a charge
thereon, may be reserved by the donor; but if he should die
without having made use of this right, the property or amount
reserved shall belong to the donee. (639)
Article 756. The ownership of property may also be donated
to one person and the usufruct to another or others, provided
all the donees are living at the time of the donation. (640a)
Article 757. Reversion may be validly established in favor of
only the donor for any case and circumstances, but not in
favor of other persons unless they are all living at the time of
the donation.
Any reversion stipulated by the donor in favor of a third
person in violation of what is provided in the preceding
paragraph shall be void, but shall not nullify the donation.
(614a)
Article 758. When the donation imposes upon the donee the
obligation to pay the debts of the donor, if the clause does
not contain any declaration to the contrary, the former is
understood to be liable to pay only the debts which appear to
have been previously contracted. In no case shall the donee
be responsible for the debts exceeding the value of the
property donated, unless a contrary intention clearly
appears. (642a)
Article 759. There being no stipulation regarding the
payment of debts, the donee shall be responsible therefor
only when the donation has been made in fraud of creditors.
The donation is always presumed to be in fraud of creditors,
when at the time thereof the donor did not reserve sufficient
property to pay his debts prior to the donation. (643)
CHAPTER 4
Revocation and Reduction of Donations
Article 760. Every donation inter vivos, made by a person
having no children or descendants, legitimate or legitimated
by subsequent marriage, or illegitimate, may be revoked or
reduced as provided in the next article, by the happening of
any of these events:
(1) If the donor, after the donation, should have legitimate or
legitimated or illegitimate children, even though they be
posthumous;
(2) If the child of the donor, whom the latter believed to be
dead when he made the donation, should turn out to be
living;
(3) If the donor subsequently adopt a minor child. (644a)
Article 761. In the cases referred to in the preceding article,
the donation shall be revoked or reduced insofar as it
exceeds the portion that may be freely disposed of by will,
taking into account the whole estate of the donor at the time
of the birth, appearance or adoption of a child. (n)
Article 762. Upon the revocation or reduction of the donation
by the birth, appearance or adoption of a child, the property
affected shall be returned or its value if the donee has sold
the same.
If the property is mortgaged, the donor may redeem the
mortgage, by paying the amount guaranteed, with a right to
recover the same from the donee.
When the property cannot be returned, it shall be estimated
at what it was worth at the time of the donation. (645a)
Article 763. The action for revocation or reduction on the
grounds set forth in article 760 shall prescribe after four
years from the birth of the first child, or from his legitimation,
recognition or adoption, or from the judicial declaration of
filiation, or from the time information was received regarding
the existence of the child believed dead.
This action cannot be renounced, and is transmitted, upon
the death of the donor, to his legitimate and illegitimate
children and descendants. (646a)
Article 764. The donation shall be revoked at the instance of
the donor, when the donee fails to comply with any of the
conditions which the former imposed upon the latter.
In this case, the property donated shall be returned to the
donor, the alienations made by the donee and the mortgages
imposed thereon by him being void, with the limitations
established, with regard to third persons, by the Mortgage
Law and the Land Registration laws.
This action shall prescribe after four years from the
noncompliance with the condition, may be transmitted to the
heirs of the donor, and may be exercised against the
donee's heirs. (647a)
Article 765. The donation may also be revoked at the
instance of the donor, by reason of ingratitude in the
following cases:
(1) If the donee should commit some offense against the
person, the honor or the property of the donor, or of his wife
or children under his parental authority;
(2) If the donee imputes to the donor any criminal offense, or
any act involving moral turpitude, even though he should
prove it, unless the crime or the act has been committed
against the donee himself, his wife or children under his
authority;
(3) If he unduly refuses him support when the donee is
legally or morally bound to give support to the donor. (648a)
Article 766. Although the donation is revoked on account of
ingratitude, nevertheless, the alienations and mortgages
effected before the notation of the complaint for revocation in
the Registry of Property shall subsist.
Later ones shall be void. (649)
Article 767. In the case referred to in the first paragraph of
the preceding article, the donor shall have a right to demand
from the donee the value of property alienated which he
cannot recover from third persons, or the sum for which the
same has been mortgaged.
The value of said property shall be fixed as of the time of the
donation. (650)
Article 768. When the donation is revoked for any of the
causes stated in article 760, or by reason of ingratitude, or
when it is reduced because it is inofficious, the donee shall
not return the fruits except from the filing of the complaint.
If the revocation is based upon noncompliance with any of
the conditions imposed in the donation, the donee shall
return not only the property but also the fruits thereof which
he may have received after having failed to fulfill the
condition. (651)
Article 769. The action granted to the donor by reason of
ingratitude cannot be renounced in advance. This action
prescribes within one year, to be counted from the time the
donor had knowledge of the fact and it was possible for him
to bring the action. (652)
Article 770. This action shall not be transmitted to the heirs
of the donor, if the latter did not institute the same, although
he could have done so, and even if he should die before the
expiration of one year.
Neither can this action be brought against the heir of the
donee, unless upon the latter's death the complaint has been
filed. (653)
Article 771. Donations which in accordance with the
provisions of article 752, are inofficious, bearing in mind the
estimated net value of the donor's property at the time of his
death, shall be reduced with regard to the excess; but this
reduction shall not prevent the donations from taking effect
during the life of the donor, nor shall it bar the donee from
appropriating the fruits.
For the reduction of donations the provisions of this Chapter
and of articles 911 and 912 of this Code shall govern. (654)
Article 772. Only those who at the time of the donor's death
have a right to the legitime and their heirs and successors in
interest may ask for the reduction or inofficious donations.
Those referred to in the preceding paragraph cannot
renounce their right during the lifetime of the donor, either by
express declaration, or by consenting to the donation.
The donees, devisees and legatees, who are not entitled to
the legitime and the creditors of the deceased can neither
ask for the reduction nor avail themselves thereof. (655a)
Article 773. If, there being two or more donations, the
disposable portion is not sufficient to cover all of them, those
of the more recent date shall be suppressed or reduced with
regard to the excess. (656)
f. Real Estate Mortgage – Article 2085 to 2092, 2124
to 2131 of the Civil Code
CHAPTER 1
Provisions Common to Pledge and Mortgage
Article 2085. The following requisites are essential to the
contracts of pledge and mortgage:
(1) That they be constituted to secure the fulfillment of a
principal obligation;
(2) That the pledgor or mortgagor be the absolute owner of
the thing pledged or mortgaged;
(3) That the persons constituting the pledge or mortgage
have the free disposal of their property, and in the absence
thereof, that they be legally authorized for the purpose.
Third persons who are not parties to the principal obligation
may secure the latter by pledging or mortgaging their own
property. (1857)
Article 2086. The provisions of article 2052 are applicable to
a pledge or mortgage. (n)
Article 2087. It is also of the essence of these contracts that
when the principal obligation becomes due, the things in
which the pledge or mortgage consists may be alienated for
the payment to the creditor. (1858)
Article 2088. The creditor cannot appropriate the things
given by way of pledge or mortgage, or dispose of them. Any
stipulation to the contrary is null and void. (1859a)
Article 2089. A pledge or mortgage is indivisible, even
though the debt may be divided among the successors in
interest of the debtor or of the creditor.
Therefore, the debtor's heir who has paid a part of the debt
cannot ask for the proportionate extinguishment of the
pledge or mortgage as long as the debt is not completely
satisfied.
Neither can the creditor's heir who received his share of the
debt return the pledge or cancel the mortgage, to the
prejudice of the other heirs who have not been paid.
From these provisions is excepted the case in which, there
being several things given in mortgage or pledge, each one
of them guarantees only a determinate portion of the credit.
The debtor, in this case, shall have a right to the
extinguishment of the pledge or mortgage as the portion of
the debt for which each thing is specially answerable is
satisfied. (1860)
Article 2090. The indivisibility of a pledge or mortgage is not
affected by the fact that the debtors are not solidarily liable.
(n)
Article 2091. The contract of pledge or mortgage may
secure all kinds of obligations, be they pure or subject to a
suspensive or resolutory condition. (1861)
Article 2092. A promise to constitute a pledge or mortgage
gives rise only to a personal action between the contracting
parties, without prejudice to the criminal responsibility
incurred by him who defrauds another, by offering in pledge
or mortgage as unencumbered, things which he knew were
subject to some burden, or by misrepresenting himself to be
the owner of the same. (1862)
CHAPTER 3
Mortgage
Article 2124. Only the following property may be the object
of a contract of mortgage:
(1) Immovables;
(2) Alienable real rights in accordance with the laws,
imposed upon immovables.
Nevertheless, movables may be the object of a chattel
mortgage. (1874a)
Article 2125. In addition to the requisites stated in article
2085, it is indispensable, in order that a mortgage may be
validly constituted, that the document in which it appears be
recorded in the Registry of Property. If the instrument is not
recorded, the mortgage is nevertheless binding between the
parties.
The persons in whose favor the law establishes a mortgage
have no other right than to demand the execution and the
recording of the document in which the mortgage is
formalized. (1875a)
Article 2126. The mortgage directly and immediately
subjects the property upon which it is imposed, whoever the
possessor may be, to the fulfillment of the obligation for
whose security it was constituted. (1876)
Article 2127. The mortgage extends to the natural
accessions, to the improvements, growing fruits, and the
rents or income not yet received when the obligation
becomes due, and to the amount of the indemnity granted or
owing to the proprietor from the insurers of the property
mortgaged, or in virtue of expropriation for public use, with
the declarations, amplifications and limitations established by
law, whether the estate remains in the possession of the
mortgagor, or it passes into the hands of a third person.
(1877)
Article 2128. The mortgage credit may be alienated or
assigned to a third person, in whole or in part, with the
formalities required by law. (1878)
Article 2129. The creditor may claim from a third person in
possession of the mortgaged property, the payment of the
part of the credit secured by the property which said third
person possesses, in the terms and with the formalities
which the law establishes. (1879)
Article 2130. A stipulation forbidding the owner from
alienating the immovable mortgaged shall be void. (n)
Article 2131. The form, extent and consequences of a
mortgage, both as to its constitution, modification and
extinguishment, and as to other matters not included in this
Chapter, shall be governed by the provisions of the
Mortgage Law and of the Land Registration Law. (1880a)
g. Chattel Mortgage – Article 2085 to 2123, 2140 to
2141 of the Civil Code; Act No. 1508, as amended,
with Affidavit of Good Faith
CHAPTER 5
Chattel Mortgage
Article 2140. By a chattel mortgage, personal property is
recorded in the Chattel Mortgage Register as a security for
the performance of an obligation. If the movable, instead of
being recorded, is delivered to the creditor or a third person,
the contract is a pledge and not a chattel mortgage. (n)
Article 2141. The provisions of this Code on pledge, insofar
as they are not in conflict with the Chattel Mortgage Law
shall be applicable to chattel mortgages. (n)
h. Deed of Release of Real Estate or Chattel
Mortgage
i. Pre-Nuptial Agreement – Articles 74 to 81 of the
Family Code
Art. 74. The property relationship between husband and wife
shall be governed in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom. (118)
Art. 75. The future spouses may, in the marriage
settlements, agree upon the regime of absolute community,
conjugal partnership of gains, complete separation of
property, or any other regime. In the absence of a marriage
settlement, or when the regime agreed upon is void, the
system of absolute community of property as established in
this Code shall govern. (119a)
Art. 76. In order that any modification in the marriage
settlements may be valid, it must be made before the
celebration of the marriage, subject to the provisions of
Articles 66, 67, 128, 135 and 136. (121)
Art. 77. The marriage settlements and any modification
thereof shall be in writing, signed by the parties and
executed before the celebration of the marriage. They shall
not prejudice third persons unless they are registered in the
local civil registry where the marriage contract is recorded as
well as in the proper registries of properties. (122a)
Art. 78. A minor who according to law may contract marriage
may also execute his or her marriage settlements, but they
shall be valid only if the persons designated in Article 14 to
give consent to the marriage are made parties to the
agreement, subject to the provisions of Title IX of this Code.
(120a)
Art. 79. For the validity of any marriage settlement executed
by a person upon whom a sentence of civil interdiction has
been pronounced or who is subject to any other disability, it
shall be indispensable for the guardian appointed by a
competent court to be made a party thereto. (123a)
Art. 80. In the absence of a contrary stipulation in a marriage
settlement, the property relations of the spouses shall be
governed by Philippine laws, regardless of the place of the
celebration of the marriage and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting
property not situated in the Philippines and executed in the
country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered
into in the Philippines but affecting property situated in a
foreign country whose laws require different formalities for its
extrinsic validity. (124a)
Art. 81. Everything stipulated in the settlements or contracts
referred to in the preceding articles in consideration of a
future marriage, including donations between the prospective
spouses made therein, shall be rendered void if the marriage
does not take place. However, stipulations that do not
depend upon the celebration of the marriages shall be valid.
(125a)
j. Deed of Assignment of Credits – Article 1624 to
1635 of the Civil Code
CHAPTER 8
Assignment of Credits and Other Incorporeal Rights
Article 1624. An assignment of creditors and other
incorporeal rights shall be perfected in accordance with the
provisions of article 1475. (n)
Article 1625. An assignment of a credit, right or action shall
produce no effect as against third persons, unless it appears
in a public instrument, or the instrument is recorded in the
Registry of Property in case the assignment involves real
property. (1526)
Article 1626. The debtor who, before having knowledge of
the assignment, pays his creditor shall be released from the
obligation. (1527)
Article 1627. The assignment of a credit includes all the
accessory rights, such as a guaranty, mortgage, pledge or
preference. (1528)
B.
Article 1628. The vendor in good faith shall be responsible
for the existence and legality of the credit at the time of the
sale, unless it should have been sold as doubtful; but not for
the solvency of the debtor, unless it has been so expressly
stipulated or unless the insolvency was prior to the sale and
of common knowledge.
Even in these cases he shall only be liable for the price
received and for the expenses specified in No. 1 of article
1616.
The vendor in bad faith shall always be answerable for the
payment of all expenses, and for damages. (1529)
Article 1629. In case the assignor in good faith should have
made himself responsible for the solvency of the debtor, and
the contracting parties should not have agreed upon the
duration of the liability, it shall last for one year only, from the
time of the assignment if the period had already expired.
If the credit should be payable within a term or period which
has not yet expired, the liability shall cease one year after
the maturity. (1530a)
Article 1630. One who sells an inheritance without
enumerating the things of which it is composed, shall only be
answerable for his character as an heir. (1531)
Article 1631. One who sells for a lump sum the whole of
certain rights, rents, or products, shall comply by answering
for the legitimacy of the whole in general; but he shall not be
obliged to warrant each of the various parts of which it may
be composed, except in the case of eviction from the whole
or the part of greater value. (1532a)
Article 1632. Should the vendor have profited by some of
the fruits or received anything from the inheritance sold, he
shall pay the vendee thereof, if the contrary has not been
stipulated. (1533)
Article 1633. The vendee shall, on his part, reimburse the
vendor for all that the latter may have paid for the debts of
and charges on the estate and satisfy the credits he may
have against the same, unless there is an agreement to the
contrary. (1534) ARTICLE 1634. When a credit or other
incorporeal right in litigation is sold, the debtor shall have a
right to extinguish it by reimbursing the assignee for the price
the latter paid therefor, the judicial costs incurred by him, and
the interest on the price from the day on which the same was
paid.
A credit or other incorporeal right shall be considered in
litigation from the time the complaint concerning the same is
answered.
The debtor may exercise his right within thirty days from the
date the assignee demands payment from him. (1535)
Article 1635. From the provisions of the preceding article
shall be excepted the assignments or sales made:
(1) To a co-heir or co-owner of the right assigned;
(2) To a creditor in payment of his credit;
(3) To the possessor of a tenement or piece of land which is
subject to the right in litigation assigned. (1536)
Partnership and Corporate Forms
a. Articles of Partnership – Articles 1767, 1770 to
1774 of the Civil Code
Article 1767. By the contract of partnership two or more
persons bind themselves to contribute money, property, or
industry to a common fund, with the intention of dividing the
profits among themselves.
Two or more persons may also form a partnership for the
exercise of a profession. (1665a)
Article 1770. A partnership must have a lawful object or
purpose, and must be established for the common benefit or
interest of the partners.
When an unlawful partnership is dissolved by a judicial
decree, the profits shall be confiscated in favor of the State,
without prejudice to the provisions of the Penal Code
governing the confiscation of the instruments and effects of a
crime. (1666a)
Article 1771. A partnership may be constituted in any form,
except where immovable property or real rights are
contributed thereto, in which case a public instrument shall
be necessary. (1667a)
Article 1772. Every contract of partnership having a capital
of three thousand pesos or more, in money or property, shall
appear in a public instrument, which must be recorded in the
Office of the Securities and Exchange Commission.
Failure to comply with the requirements of the preceding
paragraph shall not affect the liability of the partnership and
the members thereof to third persons. (n)
Article 1773. A contract of partnership is void, whenever
immovable property is contributed thereto, if an inventory of
said property is not made, signed by the parties, and
attached to the public instrument. (1668a)
Article 1774. Any immovable property or an interest therein
may be acquired in the partnership name. Title so acquired
can be conveyed only in the partnership name. (n)
b. Articles of Incorporation – Sec. 10 to 15 of the
Corporation Code
SEC. 10. Number and Qualifications of Incorporators. – Any
person, partnership, association or corporation, singly or
jointly with others but not more than fifteen (15) in number,
may organize a corporation for any lawful purpose or
purposes: Provided, That natural persons who are licensed
to practice a profession, and partnerships or associations
organized for the purpose of practicing a profession, shall
not be allowed to organize as a corporation unless otherwise
provided under special laws. Incorporators who are natural
persons must be of legal age.
Each incorporator of a stock corporation must own or be a
subscriber to at least one (1) share of the capital stock.
A corporation with a single stockholder is considered a One
Person Corporation as described in Title XIII, Chapter III of
this Code.
SEC. 11. Corporate Term. – A corporation shall have
perpetual existence unless its articles of incorporation
provides otherwise.
Corporations with certificates of incorporation issued prior to
the effectivity of this Code, and which continue to exist, shall
have perpetual existence, unless the corporation, upon a
vote of its stockholders representing a majority of its
outstanding capital stock, notifies the Commission that it
elects to retain its specific corporate term pursuant to its
articles of incorporation: Provided, That any change in the
corporate term under this section is without prejudice to the
appraisal right of dissenting stockholders in accordance with
the provisions of this Code.
A corporate term for a specific period may be extended or
shortened by amending the articles of incorporation:
Provided, That no extension may be made earlier than three
(3) years prior to the original or subsequent expiry date(s)
unless there are justifiable reasons for an earlier extension
as may be determined by the Commission: Provided, further,
That such extension of the corporate term shall take effect
only on the day following the original or subsequent expiry
date(s).
A corporation whose term has expired may apply for a
revival of its corporate existence, together with all the rights
and privileges under its certificate of incorporation and
subject to all of its duties, debts and liabilities existing prior to
its revival. Upon approval by the Commission, the
corporation shall be deemed revived and a certificate of
revival of corporate existence shall be issued, giving it
perpetual existence, unless its application for revival
provides otherwise.
No application for revival of certificate of incorporation of
banks, banking and quasibanking institutions, preneed,
insurance and trust companies, non-stock savings and loan
associations (NSSLAs), pawnshops, corporations engaged
in money service business, and other financial intermediaries
shall be approved by the Commission unless accompanied
by a favorable recommendation of the appropriate
government agency.
SEC. 12. Minimum Capital Stock Not Required of Stock
Corporations. – Stock corporations shall not be required to
have a minimum capital stock, except as otherwise
specifically provided by special law.
SEC. 13. Contents of the Articles of Incorporation. – All
corporations shall file with the Commission articles of
incorporation in any of the official languages, duly signed
and acknowledged or authenticated, in such form and
manner as may be allowed by the Commission, containing
substantially the following matters, except as otherwise
prescribed by this Code or by special law:
(a) The name of the corporation;
(b) The specific purpose or purposes for which the
corporation is being formed. Where a corporation has more
than one stated purpose, the articles of incorporation shall
indicate the primary purpose and the secondary purpose or
purposes: Provided, That a nonstock corporation may not
include a purpose which would change or contradict its
nature as such; (c) The place where the principal office of
the corporation is to be located, which must be within the
Philippines;
(d) The term for which the corporation is to exist, if the
corporation has not elected perpetual existence;
(e) The names, nationalities, and residence addresses of the
incorporators;
(f) The number of directors, which shall not be more than
fifteen (15) or the number of trustees which may be more
than fifteen (15);
(g) The names, nationalities, and residence addresses of
persons who shall act as directors or trustees until the first
regular directors or trustees are duly elected and qualified in
accordance with this Code;
(h) If it be a stock corporation, the amount of its authorized
capital stock, number of shares into which it is divided, the
par value of each, names, nationalities, and residence
addresses of the original subscribers, amount subscribed
and paid by each on the subscription, and a statement that
some or all of the shares are without par value, if applicable;
(i) If it be a nonstock corporation, the amount of its capital,
the names, nationalities, and residence addresses of the
contributors, and amount contributed by each; and
(j) Such other matters consistent with law and which the
incorporators may deem necessary and convenient. An
arbitration agreement may be provided in the articles of
incorporation pursuant to Section 181 of this Code.
The articles of incorporation and applications for
amendments thereto may be filed with the Commission in
the form of an electronic document, in accordance with the
Commission’s rules and regulations on electronic filing.
SEC. 14. Form of Articles of Incorporation. – Unless
otherwise prescribed by special law, the articles of
incorporation of all domestic corporations shall comply
substantially with the following form:
Articles of Incorporation of
______________________
(Name of Corporation)
The undersigned incorporators, all of legal age, have
voluntarily agreed to form a (stock) (nonstock) corporation
under the laws of the Republic of the Philippines and certify
the following:
First: That the name of said corporation shall be
“_______________, Inc., Corporation or OPC”;
Second: That the purpose or purposes for which such
corporation is incorporated are: (If there is more than one
purpose, indicate primary and secondary purposes);
Third: That the principal office of the corporation is located in
the City/Municipality of ______________________, Province
of _______________________, Philippines;
Fourth: That the corporation shall have perpetual existence
or a term of ______________ years from the date of
issuance of the certificate of incorporation;
Fifth: That the names, nationalities, and residence addresses
of the incorporators of the corporation are as follows:
Name Nationality Residence
Sixth: That the number of directors or trustees of the
corporation shall be _________________; and the names,
nationalities, and residence addresses of the first directors or
trustees of the corporation are as follows:
Name Nationality Residence
Seventh: That the authorized capital stock of the corporation
is ______________ PESOS (P________), divided into
_____ shares with the par value of ____________ PESOS
(P_______________) per share. (In case all the shares are
without par value): That the capital stock of the corporation is
__________________________ shares without par value.
(In case some shares have par value and some are without
par value): That the capital stock of said corporation consists
of __________________________ shares, of which
_______________________ shares have a par value of
_________________ PESOS (P____________) each, and
of which _______________________ shares are without par
value.
Eighth: That the number of shares of the authorized capital
stock above-stated has been subscribed as follows:
(Modify No. 8 if shares are with no-par value. In case the
corporation is nonstock, Nos. 7 and 8 of the above articles
may be modified accordingly, and it is sufficient if the articles
state the amount of capital or money contributed or donated
by specified persons, stating the names, nationalities, and
residence addresses of the contributors or donors and the
respective amount given by each.)
Ninth: That _____________________ has been elected by
the subscribers as Treasurer of the Corporation to act as
such until after the successor is duly elected and qualified in
accordance with the bylaws, that as Treasurer, authority has
been given to receive in the name and for the benefit of the
corporation, all subscriptions, contributions or donations paid
or given by the subscribers or members, who certifies the
information set forth in the seventh and eighth clauses
above, and that the paid-up portion of the subscription in
cash and/or property for the benefit and credit of the
corporation has been duly received.
Tenth: That the incorporators undertake to change the name
of the corporation immediately upon receipt of notice from
the Commission that another corporation, partnership or
person has acquired a prior right to the use of such name,
that the name has been declared not distinguishable Name
of Subscriber Nationality No. of Shares Subscribed Amount
Subscribed Amount Paid Page 8 of 73 from a name already
registered or reserved for the use of another corporation, or
that it is contrary to law, public morals, good customs or
public policy.
Eleventh: (Corporations which will engage in any business or
activity reserved for Filipino citizens shall provide the
following): “No transfer of stock or interest which shall reduce
the ownership of Filipino citizens to less than the required
percentage of capital stock as provided by existing laws shall
be allowed or permitted to be recorded in the proper books
of the corporation, and this restriction shall be indicated in all
stock certificates issued by the corporation.”
IN WITNESS WHEREOF, we have hereunto signed these
Articles of Incorporation, this _______ day of
_____________, 20_____ in the City/Municipality of
______________________, Province of
_______________________, Republic of the Philippines.
(Names and signatures of the incorporators)
_______________________________________
(Name and signature of Treasurer)
SEC. 15. Amendment of Articles of Incorporation. – Unless
otherwise prescribed by this Code or by special law, and for
legitimate purposes, any provision or matter stated in the
articles of incorporation may be amended by a majority vote
of the board of directors or trustees and the vote or written
assent of the stockholders representing at least two-thirds
(2/3) of the outstanding capital stock, without prejudice to the
appraisal right of dissenting stockholders in accordance with
the provisions of this Code. The articles of incorporation of a
nonstock corporation may be amended by the vote or written
assent of majority of the trustees and at least two-thirds (2/3)
of the members.
The original and amended articles together shall contain all
provisions required by law to be set out in the articles of
incorporation. Amendments to the articles shall be indicated
by underscoring the change or changes made, and a copy
thereof duly certified under oath by the corporate secretary
and a majority of the directors or trustees, with a statement
that the amendments have been duly approved by the
required vote of the stockholders or members, shall be
submitted to the Commission.
The amendments shall take effect upon their approval by the
Commission or from the date of filing with the said
Commission if not acted upon within six (6) months from the
date of filing for a cause not attributable to the corporation.
c. By-Laws – Sec. 46 to 47 of the Corporation Code
SEC. 46. Contents of Bylaws. – A private corporation may
provide the following in its bylaws:
(a) The time, place and manner of calling and conducting
regular or special meetings of the directors or trustees;
(b) The time and manner of calling and conducting regular or
special meetings and mode of notifying the stockholders or
members thereof;
(c) The required quorum in meetings of stockholders or
members and the manner of voting therein;
(d) The modes by which a stockholder, member, director, or
trustee may attend meetings and cast their votes;
(e) The form for proxies of stockholders and members and
the manner of voting them;
(f) The directors’ or trustees’ qualifications, duties and
responsibilities, the guidelines for setting the compensation
of directors or trustees and officers, and the maximum
number of other board representations that an independent
director or trustee may have which shall, in no case, be
more than the number prescribed by the Commission;
(g) The time for holding the annual election of directors or
trustees and the mode or manner of giving notice thereof;
(h) The manner of election or appointment and the term of
office of all officers other than directors or trustees;
(i) The penalties for violation of the bylaws;
(j) In the case of stock corporations, the manner of issuing
stock certificates; and
(k) Such other matters as may be necessary for the proper
or convenient transaction of its corporate affairs for the
promotion of good governance and anti-graft and corruption
measures.
An arbitration agreement may be provided in the bylaws
pursuant to Section 181 of this
Code.
SEC. 47. Amendment to Bylaws. – A majority of the board of
directors or trustees, and the owners of at least a majority of
the outstanding capital stock, or at least a majority of the
members of a nonstock corporation, at a regular or special
meeting duly called for the purpose, may amend or repeal
the bylaws or adopt new bylaws. The owners of two-thirds
(2/3) of the outstanding capital stock or two-thirds (2/3) of the
members in a nonstock corporation may delegate to the
board of directors or trustees the power to amend or repeal
the bylaws or adopt new bylaws: Provided, That any power
delegated to the board of directors or trustees to amend or
repeal the bylaws or adopt new bylaws shall be considered
as revoked whenever stockholders owning or representing a
majority of the outstanding capital stock or majority of the
members shall so vote at a regular or special meeting.
Whenever the bylaws are amended or new bylaws are
adopted, the corporation shall file with the Commission such
amended or new bylaws and, if applicable, the stockholders’
or members’ resolution authorizing the delegation of the
power to amend and/or adopt new bylaws, duly certified
under oath by the corporate secretary and a majority of the
directors or trustees.
The amended or new bylaws shall only be effective upon the
issuance by the Commission of a certification that the same
is in accordance with this Code and other relevant laws.
d. Board Resolution authorizing corporate officer to
obtain a bank loan
e. Secretary’s Certificate
f. Proxy to attend a stockholder’s meeting – Sec. 58
of the Corporation Code
SEC. 58. Voting Trusts. – One or more stockholders of a
stock corporation may create a voting trust for the purpose of
conferring upon a trustee or trustees the right to vote and
other rights pertaining to the shares for a period not
exceeding five (5) years at any time: Provided, That in the
case of a voting trust specifically required as a condition in a
loan agreement, said voting trust may be for a period
exceeding five (5) years but shall automatically expire upon
full payment of the loan. A voting trust agreement must be in
writing and notarized, and shall specify the terms and
conditions thereof. A certified copy of such agreement shall
be filed with the corporation and with the Commission;
otherwise, the agreement is ineffective and unenforceable.
The certificate or certificates of stock covered by the voting
trust agreement shall be cancelled and new ones shall be
issued in the name of the trustee or trustees, stating that
they are issued pursuant to said agreement. The books of
the corporation shall state that the transfer in the name of the
trustee or trustees is made pursuant to the voting trust
agreement.
The trustee or trustees shall execute and deliver to the
transferors, voting trust certificates, which shall be
transferable in the same manner and with the same effect as
certificates of stock.
The voting trust agreement filed with the corporation shall be
subject to examination by any stockholder of the corporation
in the same manner as any other corporate book or record:
Provided, That both the trustor and the trustee or trustees
may exercise the right of inspection of all corporate books
and records in accordance with the provisions of this Code.
Any other stockholder may transfer the shares to the same
trustee or trustees upon the terms and conditions stated in
the voting trust agreement, and thereupon shall be bound by
all the provisions of said agreement.
No voting trust agreement shall be entered into for purposes
of circumventing the laws against anti-competitive
agreements, abuse of dominant position, anti-competitive
mergers and acquisitions, violation of nationality and capital
requirements, or for the perpetuation of fraud.
Unless expressly renewed, all rights granted in a voting trust
agreement shall automatically expire at the end of the
agreed period. The voting trust certificates as well as the
certificates of stock in the name of the trustee or trustees
shall thereby be deemed cancelled and new certificates of
stock shall be reissued in the name of the trustors.
The voting trustee or trustees may vote by proxy or in any
manner authorized under the bylaws unless the agreement
provides otherwise.
g. Notice of Stockholder’s meeting – Sec. 50 to 51 of
the Corporation Code
SEC. 50. Place and Time of Meetings of Stockholders or
Members. – Stockholders’ or members’ meetings, whether
regular or special, shall be held in the principal office of the
corporation as set forth in the articles of incorporation, or, if
not practicable, in the city or municipality where the principal
office of the corporation is located: Provided, That any city or
municipality in Metro Manila, Metro Cebu, Metro Davao, and
other Metropolitan areas shall, for purposes of this section,
be considered a city or municipality.
Notice of meetings shall be sent through the means of
communication provided in the bylaws, which notice shall
state the time, place and purpose of the meetings.
Each notice of meeting shall further be accompanied by the
following:
(a) The agenda for the meeting;
(b) A proxy form which shall be submitted to the corporate
secretary within a reasonable time prior to the meeting;
(c) When attendance, participation, and voting are allowed
by remote communication or in absentia, the requirements
and procedures to be followed when a stockholder or
member elects either option; and
(d) When the meeting is for the election of directors or
trustees, the requirements and procedure for nomination and
election.
All proceedings and any business transacted at a meeting of
the stockholders or members, if within the powers or
authority of the corporation, shall be valid even if the meeting
is improperly held or called: Provided, That all the
stockholders or members of the corporation are present or
duly represented at the meeting and not one of them
expressly states at the beginning of the meeting that the
purpose of their attendance is to object to the transaction of
any business because the meeting is not lawfully called or
convened.
SEC. 51. Quorum in Meetings. – Unless otherwise provided
in this Code or in the bylaws, a quorum shall consist of the
stockholders representing a majority of the outstanding
capital stock or a majority of the members in the case of
nonstock corporations.
h. Minutes of Meetings
i. Arbitration Clause – Republic Act. No. 9285 or
the Alternative Dispute Resolution Act of 2004
Republic Act No. 9285 April 2, 2004
AN ACT TO INSTITUTIONALIZE THE USE OF AN
ALTERNATIVE DISPUTE RESOLUTION SYSTEM IN THE
PHILIPPINES AND TO ESTABLISH THE OFFICE FOR
ALTERNATIVE DISPUTE RESOLUTION, AND FOR
OTHER PURPOSES
Be it enacted by the Senate and House of Representatives
of the Philippine Congress Assembled:
CHAPTER 1 - GENERAL PROVISIONS
SECTION 1. Title. - This act shall be known as the
"Alternative Dispute Resolution Act of 2004."
SEC. 2. Declaration of Policy. - it is hereby declared the
policy of the State to actively promote party autonomy in the
resolution of disputes or the freedom of the party to make
their own arrangements to resolve their disputes. Towards
this end, the State shall encourage and actively promote the
use of Alternative Dispute Resolution (ADR) as an important
means to achieve speedy and impartial justice and declog
court dockets. As such, the State shall provide means for the
use of ADR as an efficient tool and an alternative procedure
for the resolution of appropriate cases. Likewise, the State
shall enlist active private sector participation in the
settlement of disputes through ADR. This Act shall be
without prejudice to the adoption by the Supreme Court of
any ADR system, such as mediation, conciliation, arbitration,
or any combination thereof as a means of achieving speedy
and efficient means of resolving cases pending before all
courts in the Philippines which shall be governed by such
rules as the Supreme Court may approve from time to time.
SEC. 3. Definition of Terms. - For purposes of this Act, the
term:
(a) "Alternative Dispute Resolution System" means any
process or procedure used to resolve a dispute or
controversy, other than by adjudication of a presiding judge
of a court or an officer of a government agency, as defined in
this Act, in which a neutral third party participates to assist in
the resolution of issues, which includes arbitration,
mediation, conciliation, early neutral evaluation, mini-trial, or
any combination thereof;
(b) "ADR Provider" means institutions or persons accredited
as mediator, conciliator, arbitrator, neutral evaluator, or any
person exercising similar functions in any Alternative Dispute
Resolution system. This is without prejudice to the rights of
the parties to choose nonaccredited individuals to act as
mediator, conciliator, arbitrator, or neutral evaluator of their
dispute.
Whenever reffered to in this Act, the term "ADR
practitioners" shall refer to individuals acting as mediator,
conciliator, arbitrator or neutral evaluator;
(c) "Authenticate" means to sign, execute or adopt a symbol,
or encrypt a record in whole or in part, intended to identity
the authenticating party and to adopt, accept or establish the
authenticity of a record or term;
(d) "Arbitration" means a voluntary dispute resolution
process in which one or more arbitrators, appointed in
accordance with the agreement of the parties, or rules
promulgated pursuant to this Act, resolve a dispute by
rendering an award;
(e) "Arbitrator" means the person appointed to render an
award, alone or with others, in a dispute that is the subject of
an arbitration agreement;
(f) "Award" means any partial or final decision by an
arbitrator in resolving the issue in a controversy;
(g) "Commercial Arbitration" An arbitration is "commercial if it
covers matter arising from all relationships of a commercial
nature, whether contractual or not;
(h) "Confidential information" means any information, relative
to the subject of mediation or arbitration, expressly intended
by the source not to be disclosed, or obtained under
circumstances that would create a reasonable expectation
on behalf of the source that the information shall not be
disclosed. It shall include (1) communication, oral or written,
made in a dispute resolution proceedings, including any
memoranda, notes or work product of the neutral party or
non-party participant, as defined in this Act; (2) an oral or
written statement made or which occurs during mediation or
for purposes of considering, conducting, participating,
initiating, continuing of reconvening mediation or retaining a
mediator; and (3) pleadings, motions manifestations, witness
statements, reports filed or submitted in an arbitration or for
expert evaluation;
(i) "Convention Award" means a foreign arbitral award made
in a Convention State;
(j) "Convention State" means a State that is a member of the
New York Convention;
(k) "Court" as referred to in Article 6 of the Model Law shall
mean a Regional Trial Court;
(l) "Court-Annexed Mediation" means any mediation process
conducted under the auspices of the court, after such court
has acquired jurisdiction of the dispute;
(m) "Court-Referred Mediation" means mediation ordered by
a court to be conducted in accordance with the Agreement of
the Parties when as action is prematurely commenced in
violation of such agreement;
(n) "Early Neutral Evaluation" means an ADR process
wherein parties and their lawyers are brought together early
in a pre-trial phase to present summaries of their cases and
receive a nonbinding assessment by an experienced, neutral
person, with expertise in the subject in the substance of the
dispute;
(o) "Government Agency" means any government entity,
office or officer, other than a court, that is vested by law with
quasi-judicial power to resolve or adjudicate dispute
involving the government, its agencies and instrumentalities,
or private persons;
(p) "International Party" shall mean an entity whose place of
business is outside the Philippines. It shall not include a
domestic subsidiary of such international party or a
coventurer in a joint venture with a party which has its place
of business in the Philippines.
The term foreigner arbitrator shall mean a person who is not
a national of the Philippines.
(q) "Mediation" means a voluntary process in which a
mediator, selected by the disputing parties, facilitates
communication and negotiation, and assist the parties in
reaching a voluntary agreement regarding a dispute.
(r) "Mediator" means a person who conducts mediation;
(s) "Mediation Party" means a person who participates in a
mediation and whose consent is necessary to resolve the
dispute;
(t) "Mediation-Arbitration" or Med-Arb is a step dispute
resolution process involving both mediation and arbitration;
(u) "Mini-Trial" means a structured dispute resolution method
in which the merits of a case are argued before a panel
comprising senior decision makers with or without the
presence of a neutral third person after which the parties
seek a negotiated settlement;
(v) "Model Law" means the Model Law on International
Commercial Arbitration adopted by the United Nations
Commission on International Trade Law on 21 June 1985;
(w) "New York Convention" means the United Nations
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards approved in 1958 and ratified by the
Philippine Senate under Senate Resolution No. 71;
(x) "Non-Convention Award" means a foreign arbitral award
made in a State which is not a Convention State;
(y) "Non-Convention State" means a State that is not a
member of the New York Convention.
(z) "Non-Party Participant" means a person, other than a
party or mediator, who participates in a mediation
proceeding as a witness, resource person or expert;
(aa) "Proceeding" means a judicial, administrative, or other
adjudicative process, including related pre-hearing motions,
conferences and discovery;
(bb) "Record" means an information written on a tangible
medium or stored in an electronic or other similar medium,
retrievable form; and
(cc) "Roster" means a list of persons qualified to provide
ADR services as neutrals or to serve as arbitrators.
SEC. 4. Electronic Signatures in Global and E-
Commerce Act. - The provisions of the Electronic
Signatures in Global and E-Commerce Act, and its
implementing Rules and Regulations shall apply to
proceeding contemplated in this Act.
SEC. 5. Liability of ADR Provider and Practitioner. - The
ADR providers and practitioners shall have the same civil
liability for the Acts done in the performance of then duties
as that of public officers as provided in Section 38 (1),
Chapter 9, Book of the Administrative Code of 1987.
SEC. 6. Exception to the Application of this Act. - The
provisions of this Act shall not apply to resolution or
settlement of the following: (a) labor disputes covered by
Presidential Decree No. 442, otherwise known as the Labor
Code of the Philippines, as amended and its Implementing
Rules and Regulations; (b) the civil status of persons; (c) the
validity of a marriage; (d) any ground for legal separation; (e)
the jurisdiction of courts; (f) future legitime; (g) criminal
liability; and (h) those which by law cannot be compromised.
CHAPTER 2 - MEDIATION
SEC. 7. Scope. - The provisions of this Chapter shall cover
voluntary mediation, whether ad hoc or institutional, other
than court-annexed. The term "mediation' shall include
conciliation.
SEC. 8. Application and Interpretation. - In applying
construing the provisions of this Chapter, consideration must
be given to the need to promote candor or parties and
mediators through confidentiality of the mediation process,
the policy of fostering prompt, economical, and amicable
resolution of disputes in accordance with the principles of
integrity of determination by the parties, and the policy that
the decision-making authority in the mediation process rests
with the parties.
SEC. 9. Confidentiality of Information. - Information
obtained through mediation proceedings shall be subject to
the following principles and guidelines:
(a) Information obtained through mediation shall be
privileged and confidential.
(b) A party, a mediator, or a nonparty participant may refuse
to disclose and may prevent any other person from
disclosing a mediation communication.
(c) Confidential Information shall not be subject to discovery
and shall be inadmissible if any adversarial proceeding,
whether judicial or quasi-judicial, However, evidence or
information that is otherwise admissible or subject to
discovery does not become inadmissible or protected from
discovery solely by reason of its use in a mediation.
(d) In such an adversarial proceeding, the following persons
involved or previously involved in a mediation may not be
compelled to disclose confidential information obtained
during mediation: (1) the parties to the dispute; (2) the
mediator or mediators; (3) the counsel for the parties; (4) the
nonparty participants; (5) any persons hired or engaged in
connection with the mediation as secretary, stenographer,
clerk or assistant; and (6) any other person who obtains or
possesses confidential information by reason of his/her
profession.
(e) The protections of this Act shall continue to apply even of
a mediator is found to have failed to act impartially.
(f) a mediator may not be called to testify to provide
information gathered in mediation. A mediator who is
wrongfully subpoenaed shall be reimbursed the full cost of
his attorney's fees and related expenses.
SEC. 10. Waiver of Confidentiality. - A privilege arising
from the confidentiality of information may be waived in a
record, or orally during a proceeding by the mediator and the
mediation parties.
A privilege arising from the confidentiality of information may
likewise be waived by a nonparty participant if the
information is provided by such nonparty participant.
A person who discloses confidential information shall be
precluded from asserting the privilege under Section 9 of this
Chapter to bar disclosure of the rest of the information
necessary to a complete understanding of the previously
disclosed information. If a person suffers loss or damages in
a judicial proceeding against the person who made the
disclosure.
A person who discloses or makes a representation about a
mediation is preclude from asserting the privilege under
Section 9, to the extent that the communication prejudices
another person in the proceeding and it is necessary for the
person prejudiced to respond to the representation of
disclosure.
SEC. 11. Exceptions to Privilege. -
(a) There is no privilege against disclosure under Section 9 if
mediation communication is:
(1) in an agreement evidenced by a record authenticated by
all parties to the agreement;
(2) available to the public or that is made during a session of
a mediation which is open, or is required by law to be open,
to the public;
(3) a threat or statement of a plan to inflict bodily injury or
commit a crime of violence;
(4) internationally used to plan a crime, attempt to commit, or
commit a crime, or conceal an ongoing crime or criminal
activity;
(5) sought or offered to prove or disprove abuse, neglect,
abandonment, or exploitation in a proceeding in which a
public agency is protecting the interest of an individual
protected by law; but this exception does not apply where a
child protection matter is referred to mediation by a court or a
public agency participates in the child protection mediation;
(6) sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice filed
against mediator in a proceeding; or
(7) sought or offered to prove or disprove a claim of
complaint of professional misconduct of malpractice filed
against a party, nonparty participant, or representative of a
party based on conduct occurring during a mediation.
(b) There is no privilege under Section 9 if a court or
administrative agency, finds, after a hearing in camera, that
the party seeking discovery of the proponent of the evidence
has shown that the evidence is not otherwise available, that
there is a need for the evidence that substantially outweighs
the interest in protecting confidentiality, and the mediation
communication is sought or offered in:
(1) a court proceeding involving a crime or felony; or
(2) a proceeding to prove a claim or defense that under the
law is sufficient to reform or avoid a liability on a contract
arising out of the mediation.
(c) A mediator may not be compelled to provide evidence of
a mediation communication or testify in such proceeding.
(d) If a mediation communication is not privileged under an
exception in subsection (a) or (b), only the portion of the
communication necessary for the application of the
exception for nondisclosure may be admitted. The admission
of particular evidence for the limited purpose of an exception
does not render that evidence, or any other mediation
communication, admissible for any other purpose.
SEC. 12. Prohibited Mediator Reports. - A mediator may
not make a report, assessment, evaluation,
recommendation, finding, or other communication regarding
a mediation to a court or agency or other authority that make
a ruling on a dispute that is the subject of a mediation,
except:
(a) Where the mediation occurred or has terminated, or
where a settlement was reached.
(b) As permitted to be disclosed under Section 13 of this
Chapter.
SEC. 13. Mediator's Disclosure and Conflict of Interest. -
The mediation shall be guided by the following operative
principles:
(a) Before accepting a mediation, an individual who is
requested to serve as a mediator shall:
(1) make an inquiry that is reasonable under the
circumstances to determinate whether there are any known
facts that a reasonable individual would consider likely to
affect the impartiality of the mediator, including a financial or
personal interest in the outcome of the mediation and any
existing or past relationship with a party or foreseeable
participant in the mediation; and
(2) disclosure to the mediation parties any such fact known
or learned as soon as is practical before accepting a
mediation.
(b) If a mediation learns any fact described in paragraph (a)
(1) of this section after accepting a mediation, the mediator
shall disclose it as soon as practicable.
At the request of a mediation party, an individual who is
requested to serve as mediator shall disclose his/her
qualifications to mediate a dispute.
This Act does not require that a mediator shall have special
qualifications by background or profession unless the special
qualifications of a mediator are required in the mediation
agreement or by the mediation parties.
SEC. 14. Participation in Mediation. - Except as otherwise
provided in this Act, a party may designate a lawyer or any
other person to provide assistance in the mediation. A lawyer
of this right shall be made in writing by the party waiving it. A
waiver of participation or legal representation may be
rescinded at any time.
SEC. 15. Place of Mediation. - The parties are free to agree
on the place of mediation. Failing such agreement, the place
of mediation shall be any place convenient and appropriate
to all parties.
SEC. 16. Effect of Agreement to Submit Dispute to
Mediation Under Institutional Rules. - An agreement to
submit a dispute to mediation by any institution shall include
an agreement to be bound by the internal mediation and
administrative policies of such institution. Further, an
agreement to submit a dispute to mediation under
international mediation rule shall be deemed to include an
agreement to have such rules govern the mediation of the
dispute and for the mediator, the parties, their respective
counsel, and nonparty participants to abide by such rules.
In case of conflict between the institutional mediation rules
and the provisions of this Act, the latter shall prevail.
SEC. 17. Enforcement of Mediated Settlement
Agreement. - The mediation shall be guided by the following
operative principles:
(a) A settlement agreement following successful mediation
shall be prepared by the parties with the assistance of their
respective counsel, if any, and by the mediator.
The parties and their respective counsels shall endeavor to
make the terms and condition thereof complete and make
adequate provisions for the contingency of breach to avoid
conflicting interpretations of the agreement.
(b) The parties and their respective counsels, if any, shall
sign the settlement agreement. The mediator shall certify
that he/she explained the contents of the settlement
agreement to the parties in a language known to them.
(c) If the parties so desire, they may deposit such settlement
agreement with the appropriate Clerk of a Regional Trial
Court of the place where one of the parties resides. Where
there is a need to enforce the settlement agreement, a
petition may be filed by any of the parties with the same
court, in which case, the court shall proceed summarily to
hear the petition, in accordance with such rules of procedure
as may be promulgated by the Supreme Court.
(d) The parties may agree in the settlement agreement that
the mediator shall become a sole arbitrator for the dispute
and shall treat the settlement agreement as an arbitral award
which shall be subject to enforcement under Republic Act
No. 876, otherwise known as the Arbitration Law,
notwithstanding the provisions of Executive Order No. 1008
for mediated dispute outside of the CIAC.
CHAPTER 3 - OTHER ADR FORMS
SEC. 18. Referral of Dispute to other ADR Forms. - The
parties may agree to refer one or more or all issues arising in
a dispute or during its pendency to other forms of ADR such
as but not limited to (a) the evaluation of a third person or (b)
a mini-trial, (c) mediation-arbitration, or a combination
thereof.
For purposes of this Act, the use of other ADR forms shall be
governed by Chapter 2 of this Act except where it is
combined with arbitration in which case it shall likewise be
governed by Chapter 5 of this Act.
CHAPTER 4 - INTERNATIONAL COMMERCIAL
ARBITRATION
SEC. 19. Adoption of the Model Law on International
Commercial Arbitration. - International commercial
arbitration shall be governed by the Model Law on
International Commercial Arbitration (the "Model Law")
adopted by the United Nations Commission on International
Trade Law on June 21, 1985 (United Nations Document
A/40/17) and recommended approved on December 11,
1985, copy of which is hereto attached as Appendix "A".
SEC. 20. Interpretation of Model Law. - In interpreting the
Model Law, regard shall be had to its international origin and
to the need for uniformity in its interpretation and resort may
be made to the travaux preparatories and the report of the
Secretary General of the United Nations Commission on
International Trade Law dated March 25, 1985 entitled,
"International Commercial Arbitration: Analytical
Commentary on Draft Trade identified by reference number
A/CN. 9/264."
SEC. 21. Commercial Arbitration. - An arbitration is
"commercial" if it covers matters arising from all relationships
of a commercial nature, whether contractual or not.
Relationships of a transactions: any trade transaction for the
supply or exchange of goods or services; distribution
agreements; construction of works; commercial
representation or agency; factoring; leasing, consulting;
engineering; licensing; investment; financing; banking;
insurance; joint venture and other forms of industrial or
business cooperation; carriage of goods or passengers by
air, sea, rail or road.
SEC. 22. Legal Representation in International
Arbitration. - In international arbitration conducted in the
Philippines, a party may be presented by any person of his
choice. Provided, that such representative, unless admitted
to the practice of law in the Philippines, shall not be
authorized to appear as counsel in any Philippine court, or
any other quasi-judicial body whether or not such
appearance is in relation to the arbitration in which he
appears.
SEC. 23. Confidential of Arbitration Proceedings. - The
arbitration proceedings, including the records, evidence and
the arbitral award, shall be considered confidential and shall
not be published except (1) with the consent of the parties,
or (2) for the limited purpose of disclosing to the court of
relevant documents in cases where resort to the court is
allowed herein. Provided, however, that the court in which
the action or the appeal is pending may issue a protective
order to prevent or prohibit disclosure of documents or
information containing secret processes, developments,
research and other information where it is shown that the
applicant shall be materially prejudiced by an authorized
disclosure thereof.
SEC. 24. Referral to Arbitration. - A court before which an
action is brought in a matter which is the subject matter of an
arbitration agreement shall, if at least one party so requests
not later that the pre-trial conference, or upon the request of
both parties thereafter, refer the parties to arbitration unless
it finds that the arbitration agreement is null and void,
inoperative or incapable of being performed.
SEC. 25. Interpretation of the Act. - In interpreting the Act,
the court shall have due regard to the policy of the law in
favor of arbitration. Where action is commenced by or
against multiple parties, one or more of whom are parties
who are bound by the arbitration agreement although the
civil action may continue as to those who are not bound by
such arbitration agreement.
SEC. 26. Meaning of "Appointing Authority.". -
"Appointing Authority" as used in the Model Law shall mean
the person or institution named in the arbitration agreement
as the appointing authority; or the regular arbitration
arbitration institution under whose rules the arbitration is
agreed to be conducted. Where the parties have agreed to
submit their dispute to institutional arbitration rules, and
unless they have agreed to a different procedure, they shall
be deemed to have agreed to procedure under such
arbitration rules for the selection and appointment of
arbitrators. In ad hoc arbitration, the default appointment of
an arbitrator shall be made by the National President of the
Integrated Bar of the Philippines (IBP) or his duly authorized
representative.
SEC. 27. What Functions May be Performed by
Appointing Authority. - The functions referred to in Articles
11(3), 11(4), 13(3) and 14(1) of the Model Law shall be
performed by the Appointing Authority, unless the latter shall
fail or refuse to act within thirty (30) days from receipt of the
request in which case the applicant may renew the
application with the Court.
SEC. 28. Grant of Interim Measure of Protection. -
(a) It is not incompatible with an arbitration agreement for a
party to request, before constitution of the tribunal, from a
Court an interim measure of protection and for the Court to
grant such measure. After constitution of the arbitral tribunal
and during arbitral proceedings, a request for an interim
measure of protection or modification thereof, may be made
with the arbitral tribunal or to the extent that the arbitral
tribunal has no power to act or is unable to act effectively,
the request may be made with the Court. The arbitral tribunal
is deemed constituted when the sole arbitrator or the third
arbitrator who has been nominated, has accepted the
nomination and written communication of said nomination
and acceptance has been received by the party making
request.
(b) The following rules on interim or provisional relief shall be
observed:
(1) Any party may request that provision relief be granted
against the adverse party:
(2) Such relief may be granted:
(i) to prevent irreparable loss or injury:
(ii) to provide security for the performance of any obligation;
(iii) to produce or preserve any evidence; or
(iv) to compel any other appropriate act or omission.
(3) The order granting provisional relief may be conditioned
upon the provision of security or any act or omission
specified in the order.
(4) Interim or provisional relief is requested by written
application transmitted by reasonable means to the Court or
arbitral tribunal as the case may be and the party against
whom the relief is sought, describing in appropriate detail the
precise relief, the party against whom the relief is requested,
the grounds for the relief, and evidence supporting the
request.
(5) The order shall be binding upon the parties.
(6) Either party may apply with the Court for assistance in
Implementing or enforcing an interim measure ordered by an
arbitral tribunal.
(7) A party who does not comply with the order shall be liable
for all damages resulting from noncompliance, including all
expenses, and reasonable attorney's fees, paid in obtaining
the order's judicial enforcement.
SEC. 29. Further Authority for Arbitrator to Grant Interim
Measure of Protection. - Unless otherwise agreed by the
parties, the arbitral tribunal may, at the request of a party,
order any party to take such interim measures of protection
as the arbitral tribunal may consider necessary in respect of
the subject matter of the dispute following the rules in
Section 28, paragraph 2. Such interim measures may
include but shall not be limited to preliminary injuction
directed against a party, appointment of receivers or
detention, preservation, inspection of property that is the
subject of the dispute in arbitration. Either party may apply
with the Court for assistance in implementing or enforcing an
interim measures ordered by an arbitral tribunal.
SEC. 30. Place of Arbitration. - The parties are free to
agree on the place of arbitration. Failing such agreement, the
place of arbitration shall be in Metro Manila, unless the
arbitral tribunal, having regard to the circumstances of the
case, including the convenience of the parties shall decide
on a different place of arbitration.
The arbitral tribunal may, unless otherwise agreed by the
parties, meet at any place it considers appropriate for
consultation among its members, for hearing witnesses,
experts, or the parties, or for inspection of goods, other
property or documents.
SEC. 31. Language of the Arbitration. - The parties are
free to agree on the language or languages to be used in the
arbitral proceedings. Failing such agreement, the language
to be used shall be English in international arbitration, and
English or Filipino for domestic arbitration, unless the arbitral
tribunal shall determine a different or another language or
languages to be used in the proceedings. This agreement or
determination, unless otherwise specified therein, shall apply
to any written statement by a party, any hearing and any
award, decision or other communication by the arbitral
tribunal.
The arbitral tribunal may order that any documentary
evidence shall be accompanied by a translation into the
language or languages agreed upon by the parties or
determined in accordance with paragraph 1 of this section.
CHAPTER 5 - DOMESTIC ARBITRATION
SEC. 32. Law Governing Domestic Arbitration. - Domestic
arbitration shall continue to be governed by Republic Act No.
876, otherwise known as "The Arbitration Law" as amended
by this Chapter. The term "domestic arbitration" as used
herein shall mean an arbitration that is not international as
defined in Article (3) of the Model Law.
SEC. 33. Applicability to Domestic Arbitration. - Article 8,
10, 11, 12, 13, 14, 18 and 19 and 29 to 32 of the Model Law
and Section 22 to 31 of the preceding Chapter 4 shall apply
to domestic arbitration.
CHAPTER 6 - ARBITRATION OF CONSTRUCTION
DISPUTES
SEC. 34. Arbitration of Construction Disputes:
Governing Law. - The arbitration of construction disputes
shall be governed by Executive Order No. 1008, otherwise
known as the Constitution Industry Arbitration Law.
SEC. 35. Coverage of the Law. - Construction disputes
which fall within the original and exclusive jurisdiction of the
Construction Industry Arbitration Commission (the
"Commission") shall include those between or among parties
to, or who are otherwise bound by, an arbitration agreement,
directly or by reference whether such parties are project
owner, contractor, subcontractor, quantity surveyor,
bondsman or issuer of an insurance policy in a construction
project.
The Commission shall continue to exercise original and
exclusive jurisdiction over construction disputes although the
arbitration is "commercial" pursuant to Section 21 of this Act.
SEC. 36. Authority to Act as Mediator or Arbitrator. - By
written agreement of the parties to a dispute, an arbitrator
may act as mediator and a mediator may act as arbitrator.
The parties may also agree in writing that, following a
successful mediation, the mediator shall issue the settlement
agreement in the form of an arbitral award.
SEC. 37. Appointment of Foreign Arbitrator. - The
Construction Industry Arbitration Commission (CIAC) shall
promulgate rules to allow for the appointment of a foreign
arbitrator or coarbitrator or chairman of a tribunal a person
who has not been previously accredited by CIAC: Provided,
That:
(a) the dispute is a construction dispute in which one party is
an international party
(b) the person to be appointed agreed to abide by the
arbitration rules and policies of CIAC;
(c) he/she is either coarbitrator upon the nomination of the
international party; or he/she is the common choice of the
two CIAC-accredited arbitrators first appointed one of whom
was nominated by the international party; and
(d) the foreign arbitrator shall be of different nationality from
the international party.
SEC. 38. Applicability to Construction Arbitration. - The
provisions of Sections 17 (d) of Chapter 2, and Section 28
and 29 of this Act shall apply to arbitration of construction
disputes covered by this Chapter.
SEC. 39. Court to Dismiss Case Involving a Construction
Dispute. - A regional trial court which a construction dispute
is filed shall, upon becoming aware, not later than the pretrial
conference, that the parties had entered into an arbitration to
be conducted by the CIAC, unless both parties, assisted by
their respective counsel, shall submit to the regional trial
court a written agreement exclusive for the Court, rather than
the CIAC, to resolve the dispute.
CHAPTER 7 - JUDICIAL REVIEW OF ARBITRAL
AWARDS
A. DOMESTIC AWARDS
SEC. 40. Confirmation of Award. - The confirmation of a
domestic arbitral award shall be governed by Section 23 of
R.A. 876.
A domestic arbitral award when confirmed shall be enforced
in the same manner as final and executory decisions of the
Regional Trial Court.
The confirmation of a domestic award shall be made by the
regional trial court in accordance with the Rules of Procedure
to be promulgated by the Supreme Court.
A CIAC arbitral award need not be confirmed by the regional
trial court to be executory as provided under E.O. No. 1008.
SEC. 41. Vacation Award. - A party to a domestic
arbitration may question the arbitral award with the
appropriate regional trial court in accordance with the rules
of procedure to be promulgated by the Supreme Court only
on those grounds enumerated in Section 25 of Republic Act
No. 876. Any other ground raised against a domestic arbitral
award shall be disregarded by the regional trial court.
B. FOREIGN ARBITRAL AWARDS
SEC. 42. Application of the New York Convention. - The
New York Convention shall govern the recognition and
enforcement of arbitral awards covered by the said
Convention.
The recognition and enforcement of such arbitral awards
shall be filled with regional trial court in accordance with the
rules of procedure to be promulgated by the Supreme Court.
Said procedural rules shall provide that the party relying on
the award or applying for its enforcement shall file with the
court the original or authenticated copy of the award and the
arbitration agreement. If the award or agreement is not made
in any of the official languages, the party shall supply a duly
certified translation thereof into any of such languages.
The applicant shall establish that the country in which foreign
arbitration award was made is a party to the New York
Convention.
If the application for rejection or suspension of enforcement
of an award has been made, the regional trial court may, if it
considers it proper, vacate its decision and may also, on the
application of the party claiming recognition or enforcement
of the award, order the party to provide appropriate security.
SEC. 43. Recognition and Enforcement of Foreign
Arbitral Awards Not Covered by the New York
Convention. - The recognition and enforcement of foreign
arbitral awards not covered by the New York Convention
shall be done in accordance with procedural rules to be
promulgated by the Supreme Court. The Court may, grounds
of comity and reciprocity, recognize and enforce a
nonconvention award as a convention award.
SEC. 44. Foreign Arbitral Award Not Foreign Judgment. -
A foreign arbitral award when confirmed by a court of a
foreign country, shall be recognized and enforced as a
foreign arbitral award and not a judgment of a foreign court.
A foreign arbitral award, when confirmed by the regional trial
court, shall be enforced as a foreign arbitral award and not
as a judgment of a foreign court.
A foreign arbitral award, when confirmed by the regional trial
court, shall be enforced in the same manner as final and
executory decisions of courts of law of the Philippines.
SEC. 45. Rejection of a Foreign Arbitral Award. - A party
to a foreign arbitration proceeding may oppose an
application for recognition and enforcement of the arbitral
award in accordance with the procedural rules to be
promulgated by the Supreme Court only on those grounds
enumerated under Article V of the New York Convention.
Any other ground raised shall be disregarded by the regional
trial court.
SEC. 46. Appeal from Court Decisions on Arbitral
Awards. - A decision of the regional trial court confirming,
vacating, setting aside, modifying or correcting an arbitral
award may be appealed to the Court of Appeals in
accordance with the rules of procedure to be promulgated by
the Supreme Court.
The losing party who appeals from the judgment of the court
confirming an arbitral award shall required by the appealant
court to post counterbond executed in favor of the prevailing
party equal to the amount of the award in accordance with
the rules to be promulgated by the Supreme Court.
SEC. 47. Venue and Jurisdiction. - Proceedings for
recognition and enforcement of an arbitration agreement or
for vacation, setting aside, correction or modification of an
arbitral award, and any application with a court for arbitration
assistance and supervision shall be deemed as special
proceedings and shall be filled with the regional trial court (i)
where arbitration proceedings are conducted; (ii) where the
asset to be attached or levied upon, or the act to be enjoined
is located; (iii) where any of the parties to the dispute resides
or has his place of business; or (iv) in the National Judicial
Capital Region, at the option of the applicant.
SEC. 48. Notice of Proceeding to Parties. - In a special
proceeding for recognition and enforcement of an arbitral
award, the Court shall send notice to the parties at their
address of record in the arbitration, or if any party cannot be
served notice at such address, at such party's last known
address. The notice shall be sent at least fifteen (15) days
before the date set for the initial hearing of the application.
CHAPTER 8 - MISCELLANEOUS PROVISIONS
SEC. 49. Office for Alternative Dispute Resolution. -
There is hereby established the Office for Alternative Dispute
Resolution as an attached agency to the Department of
Justice (DOJ) which shall have a Secretariat to be headed
by an executive director. The executive director shall be
appointed by the President of the Philippines.
The objective of the office are:
(a) to promote, develop and expand the use of ADR in the
private and public sectors; and
To assist the government to monitor, study and evaluate the
use by the public and the private sector of ADR, and
recommend to Congress needful statutory changes to
develop. Strengthen and improve ADR practices in
accordance with world standards.
SEC. 50. Powers and Functions of the Office for
Alternative Dispute Resolution. - The Office for Alternative
Dispute Resolution shall have the following powers and
functions:
(a) To formulate standards for the training of the ADR
practitioners and service providers;
(b) To certify that such ADR practitioners and ADR service
providers have undergone the professional training provided
by the office;
 (c) To coordinate the development, implementation,
monitoring, and evaluation of government ADR programs;
(d) To charge fees for their services; and
(e) To perform such acts as may be necessary to carry into
effect the provisions of this Act.
SEC. 51. Appropriations. - The amount necessary to carry
out the provisions of this Act shall be included in the General
Appropriations Act of the year following its enactment into
law and thereafter.
SEC. 52. Implementing Rules and Regulations (IRR). -
Within one (1) month after the approval of this Act, the
secretary of justice shall convene a committee that shall
formulate the appropriate rules and regulations necessary for
the implementation of this Act. The committee, composed of
representatives from:
(a) the Department of Justice;
(b) the Department of Trade and Industry;
(c) the Department of the Interior and Local Government;
(d) the president of the Integrated Bar of the Philippines;
(e) A representative from the arbitration profession; and
(f) A representative from the mediation profession; and
(g) A representative from the ADR organizations
shall within three (3) months after convening, submit the IRR
to the Joint Congressional Oversight Committee for review
and approval. The Oversight Committee shall be composed
of the chairman of the Senate Committee on Justice and
Human Rights, chairman of the House Committee on
Justice, and one (1) member each from the majority and
minority of both Houses.
The Joint Oversight Committee shall become functus officio
upon approval of the IRR.
SEC. 53. Applicability of the Katarungan Pambarangay. -
This Act shall not be interpreted to repeal, amend or modify
the jurisdiction of the Katarungan Pambarangay under
Republic Act No. 7160, otherwise known as the Local
Government Code of 1991.
SEC. 54. Repealing Clause. - All laws, decrees, executive
orders, rules and regulations which are inconsistent with the
provisions of this Act are hereby repealed, amended or
modified accordingly.
SEC. 55. Separability Clause. - If for any reason or
reasons, any portion or provision of this Act shall be held
unconstitutional or invalid, all other parts or provisions not
affected shall thereby continue to remain in full force and
effect.
SEC. 56. Effectivity. - This act shall take effect fifteen days
(15) after its publication in at least two (2) national
newspapers of general circulation.
C. Judicial Forms
a. Complaint for Forcible Entry or Unlawful Detainer
(Ejectment) – Rule 70 of the Rules of Court
b. Complaint for a Sum of Money (based on a
Promissory Note) with application for the issuance
of a temporary restraining order (TRO) and/or a
writ of preliminary attachment – Sec. 6 to 8, Rules
8 and 57 of the Rules of Court
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)
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)
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)
RULE 57
PRELIMINARY ATTACHMENT
Section 1. Grounds upon which attachment may issue. - At
the commencement of the action or at any time before entry
of judgment, a plaintiff or any proper party may have the
property of the adverse party attached as security for the
satisfaction of any judgment that may be recovered in the
following cases:
(a) In an action for the recovery of a specified amount of
money or damages, other than moral and exemplary, on a
cause of action arising from law, contract, quasi-contract,
delict or quasi-delict against a party who is about to depart
from the Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a
public officer, or an officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the course of his
employment as such, or by any other person in a fiduciary
capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property unjustly
or fraudulently taken, detained or converted, when the
property, or any part thereof, has been concealed, removed,
or disposed of to prevent its being found or taken by the
applicant or an authorized person;
(d) In an action against a party who has been guilty of a
fraud in contracting the debt or incurring the obligation upon
which the action is brought, or in the performance thereof;
(e) In an action against a party who has removed or
disposed of his property, or is about to do so, with intent to
defraud his creditors; or
(f) In an action against a party who does not reside and is
not found in the Philippines, or on whom summons may be
served by publication. (1a)
Section 2. Issuance and contents of order. - An order of
attachment may be issued either ex parte or upon motion
with notice and hearing by the court in which the action is
pending, or by the Court of Appeals or the Supreme Court,
and must require the sheriff of the court to attach so much of
the property in the Philippines of the party against whom it is
issued, not exempt from execution, as may be sufficient to
satisfy the applicants demand, unless such party makes
deposit or gives a bond as hereinafter provided in an amount
equal to that fixed in the order, which may be the amount
sufficient to satisfy the applicants demand or the value of the
property to be attached as stated by the applicant, exclusive
of costs. Several writs may be issued at the same time to the
sheriffs of the courts of different judicial regions. (2a)
Section 3. Affidavit and bond required. - An order of
attachment shall be granted only when it appears by the
affidavit of the applicant, or of some other person who
personally knows the facts, that a sufficient
cause of action exists, that the case is one of those
mentioned in section 1 hereof, that there is no other
sufficient security for the claim sought to be enforced by the
action, and that the amount due to the applicant, or the value
of the property the possession of which he is entitled to
recover, is as much as the sum for which the order is
granted above all legal counterclaims. The affidavit, and the
bond required by the next succeeding section, must be duly
filed with the court before the order issues. (3a)
Section 4. Condition of applicant s bond. - The party applying
for the order must thereafter give a bond executed to the
adverse party in the amount fixed by the court in its order
granting the issuance of the writ, conditioned that the latter
will pay all the costs which may be adjudged to the adverse
party and all damages which he may sustain by reason of
the attachment, if the court shall finally adjudge that the
applicant was not entitled thereto. (4a)
Section 5. Manner of attaching property. - The sheriff
enforcing the writ shall without delay and with all reasonable
diligence attach, to await judgment and execution in the
action, only so much of the property in the Philippines of the
party against whom the writ is issued, not exempt from
execution, as may be sufficient to satisfy the applicants
demand, unless the former makes a deposit with the court
from which the writ is issued, or gives a counter-bond
executed to the applicant, in an amount equal to the bond
fixed by the court in the order of attachment or to the value of
the property to be attached, exclusive of costs. No levy on
attachment pursuant to the writ issued under section 2
hereof shall be enforced unless it is preceded, or
contemporaneously accompanied, by service of summons,
together with a copy of the complaint, the application for
attachment, the applicants affidavit and bond, and the order
and writ of attachment, on the defendant within the
Philippines.
The requirement of prior or contemporaneous service of
summons shall not apply where the summons could not be
served personally or by substituted service despite diligent
efforts, or the defendant is a resident of the Philippines
temporarily absent therefrom, or the defendant is a non-
resident of the Philippines, or the action is one
in rem or quasi in rem. (5a)
Section 6. Sheriffs return. - After enforcing the writ, the
sheriff must likewise without delay make a return thereon to
the court from which the writ issued, with a full statement of
his proceedings under the writ and a complete inventory of
the property attached, together with any counter-bond given
by the party against whom attachment is issued, and serve
copies thereof on the applicant. (6a)
Section 7. Attachment of real and personal property;
recording thereof - Real and personal property shall be
attached by the sheriff executing the writ in the following
manner:
(a) Real property, or growing crops thereon, or any interest
therein, standing upon the record of the registry of deeds of
the province in the name of the party against whom
attachment is issued, or not appearing at all upon such
records, or belonging to the party against whom attachment
is issued and held by any other person, or standing on the
records of the registry of deeds in the name of any other
person, by filing with the registry of deeds a copy of the
order, together with a description of the property attached,
and a notice that it is attached, or that such real property and
any interest therein held by or standing in the name of such
other person are attached, and by leaving a copy of such
order, description, and notice with the occupant of the
property, if any, or with such other person or his agent if
found within the province. Where the property has been
brought under the operation of either the Land Registration
Act or the Property Registration Decree, the notice shall
contain a reference to the number of the certificate of title,
the volume and page in the registration book where the
certificate is registered, and the registered owner or owners
thereof.
The registrar of deeds must index attachments filed under
this section in the names of the applicant, the adverse party,
or the person by whom the property is held or in whose
name it stands in the records. If the attachment is not
claimed on the entire area of the land covered by the
certificate of title, a description sufficiently accurate for the
identification of the land or interest to be affected shall be
included in the registration of such attachment;
(b) Personal property capable of manual delivery, by taking
and safely keeping it in his custody, after issuing the
corresponding receipt therefor;
(c) Stock s or shares, or an interest in stock s or shares, of
any corporation or company, by leaving with the president or
managing agent thereof, a copy of the writ, and a notice
stating that the stock or interest of the party against whom
the attachment is issued is attached in pursuance of such
writ;
(d) Debts and credits, including bank deposits, financial
interest, royalties, commissions and other personal property
not capable of manual delivery, by leaving with the person
owing such debts, or having in his possession or under his
control, such credits or other personal property, or with his
agent, a copy of the writ, and notice that the debts owing by
him to the party against whom attachment is issued, and the
credits and other personal property in his possession, or
under his control, belonging to said party, are attached in
pursuance of such writ;
(e) The interest of the party against whom attachment is
issued in property belonging to the estate of the decedent,
whether as heir, legatee, or devisee, by serving the executor
or administrator or other personal representative of the
decedent with a copy of the writ and notice that said interest
is attached. A copy of said writ of attachment and of said
notice shall also be filed in the office of the clerk of the court
in which said estate is being settled and served upon the
heir, legatee or devisee concerned.
If the property sought to be attached is in custodia legis, a
copy of the writ of attachment shall be filed with the proper
court or quasi-judicial agency, and notice of the attachment determined by the court. In either case, the cash deposit or
served upon the custodian of such property. (7a) the counter-bond shall secure the payment of any judgment
that the attaching party may recover in the action. A notice of
the deposit shall forthwith be served on the attaching party.
Section 8. Effect of attachment of debts, credits and all other
Upon the discharge of an attachment in accordance with the
similar personal property. - All persons having in their
provisions of this section, the property attached, or the
possession or under their control any credits or other similar
proceeds of any sale thereof, shall be delivered to the party
personal property belonging to the party against whom
making the deposit or giving the counter-bond, or to the
attachment is issued, or owing any debts to him, at the time
person appearing on his behalf, the deposit or counter-bond
of service upon them of the copy of the writ of attachment
aforesaid standing in place of the property so released.
and notice as provided in the last preceding section, shall be
Should such counter-bond for any reason be found to be or
liable to the applicant for the amount of such credits, debts or
become insufficient, and the party furnishing the same fail to
other similar personal property, until the attachment is
file an additional counter-bond, the attaching party may apply
discharged, or any judgment recovered by him is satisfied,
for a new order of attachment. (12a)
unless such property is delivered or transferred, or such
debts are paid, to the clerk, sheriff, or other proper officer of
the court issuing the attachment. (8a) Section 13. Discharge of attachment on other grounds. - The
party whose property has been ordered attached may file a
motion with the court in which the action is pending, before
Section 9. Effect of attachment of interest in property
or after levy or even after the release of the attached
belonging to the estate of a decedent. - The attachment of
property, for an order to set aside or discharge the
the interest of an heir, legatee, or devisee in the property
attachment on the ground that the same was improperly or
belonging to the estate of a decedent shall not impair the
irregularly issued or enforced, or that the bond is insufficient.
powers of the executor, administrator, or other personal
If the attachment is excessive, the discharge shall be limited
representative of the decedent over such property for the
to the excess. If the motion be made on affidavits on the part
purpose of administration. Such personal representative,
of the movant but not otherwise, the attaching party may
however, shall report the attachment to the court when any
oppose the motion by counter-affidavits or other evidence in
petition for distribution is filed, and in the order made upon
addition to that on which the attachment was made. After
such petition, distribution may be awarded to such heir,
due notice and hearing, the court shall order the setting
legatee, or devisee, but the property attached shall be
aside or the corresponding discharge of the attachment if it
ordered delivered to the sheriff making the levy, subject to
appears that it was improperly or irregularly issued or
the claim of such heir, legatee, or devisee, or any person
enforced, or that the bond is insufficient, or that the
claiming under him. (9a)
attachment is excessive, and the defect is not cured
forthwith. (13a)
Section 10. Examination of party whose property is attached
and persons indebted to him or controlling his property;
Section 14. Proceedings where property claimed by third
delivery of property to sheriff. - Any person owing debts to
person. - If the property attached is claimed by any person
the party whose property is attached or having in his
other than the party against whom attachment had been
possession or under his control any credit or other personal
issued or his agent, and such person makes an affidavit of
property belonging to such party, may be required to attend
his title thereto, or right to the possession thereof, stating the
before the court in which the action is pending, or before a
grounds of such right or title, and serves such affidavit upon
commissioner appointed by the court, and be examined on
the sheriff while the latter has possession of the attached
oath respecting the same. The party whose property is
property, and a copy thereof upon the attaching party, the
attached may also be required to attend for the purpose of
sheriff shall not be bound to keep the property under
giving information respecting his property, and may be
attachment, unless the attaching party or his agent, on
examined on oath. The court may, after such examination,
demand of the sheriff, shall file a bond approved by the court
order personal property capable of manual delivery
to indemnify the third-party claimant in a sum not less than
belonging to him, in the possession of the person so required
the value of the property levied upon. In case of
to attend before the court, to be delivered to the clerk of the
disagreement as to such value, the same shall be decided
court or sheriff on such terms as may be just, having
by the court issuing the writ of attachment. No claim for
reference to any lien thereon or claim against the same, to
damages for the taking or keeping of the property may be
await the judgment in the action. (10a)
enforced against the bond unless the action therefor is filed
within one hundred twenty (120) days from the date of the
Section 11. When attached property may be sold after levy filing of the bond.
on attachment and before entry of judgment. - Whenever it
shall be made to appear to the court in which the action is
The sheriff shall not be liable for damages for the taking or
pending, upon hearing with notice to both parties, that the
keeping of such property, to any such third-party claimant, if
property attached is perishable, or that the interests of all the
such bond shall be filed. Nothing herein contained shall
parties to the action will be subserved by the sale thereof,
prevent such claimant or any third person from vindicating
the court may order such property to be sold at public
his claim to the property, or prevent the attaching party from
auction in such manner as it may direct, and the proceeds of
claiming damages against a third-party claimant who filed a
such sale to be deposited in court to abide the judgment in
frivolous or plainly spurious claim, in the same or a separate
the action. (11a)
action.

Section 12. Discharge of attachment upon giving counter-

When the writ of attachment is issued in favor of the
bond. - After a writ of attachment has been enforced, the
Republic of the Philippines, or any officer duly representing
party whose property has been attached, or the person
it, the filing of such bond shall not be required, and in case
appearing on his behalf, may move for the discharge of the
the sheriff is sued for damages as a result of the attachment,
attachment wholly or in part on the security given. The court
he shall be represented by the Solicitor General, and if held
shall, after due notice and hearing, order the discharge of the
liable therefor, the actual damages adjudged by the court
attachment if the movant makes a cash deposit, or files a
shall be paid by the National Treasurer out of the funds to be
counter-bond executed to the attaching party with the clerk
appropriated for the purpose. (14a)
of the court where the application is made, in an amount
equal to that fixed by the court in the order of attachment,
exclusive of costs. But if the attachment is sought to be Section 15. Satisfaction of judgment out of property
discharged with respect to a particular property, the counter- attached; return of sheriff. - If judgment be recovered by the
bond shall be equal to the value of that property as attaching party and execution issue thereon, the sheriff may
cause the judgment to be satisfied out of the property
attached, if it be sufficient for that purpose in the following
manner:
(a) By paying to the judgment obligee the proceeds of all
sales of perishable or other property sold in pursuance of the
order of the court, or so much as shall be necessary to
satisfy the judgment;
(b) If any balance remains due, by selling so much of the
property, real or personal, as may be necessary to satisfy
the balance, if enough for that purpose remain in the sheriffs
hands, or in those of the clerk of the court;
(c) By collecting from all persons having in their possession
credits belonging to the judgment obligor, or owing debts to
the latter at the time of the attachment of such credits or
debts, the amount of such credits and debts as determined
by the court in the action, and stated in the judgment, and
paying the proceeds of such collection over to the judgment
obligee.
The sheriff shall forthwith make a return in writing to the
court of his proceedings under this section and furnish the
parties with copies thereof. (15a)
Section 16. Balance due collected upon an execution;
excess delivered to judgment obligor. - If after realizing upon
all the property attached, including the proceeds of any debts
or credits collected, and applying the proceeds to the
satisfaction of the judgment, less the expenses of
proceedings upon the judgment, any balance shall remain
due, the sheriff must proceed to collect such balance as
upon ordinary execution. Whenever the judgment shall have
been paid, the sheriff, upon reasonable demand, must return
to the judgment obligor the attached property remaining in
his hands, and any proceeds of the sale of the property
attached not applied to the judgment. (16a)
Section 17. Recovery upon the counter-bond. - When the
judgment has become executory, the surety or sureties on
any counter-bond given pursuant to the provisions of this
Rule to secure the payment of the judgment shall become
charged on such counter-bond and bound to pay the
judgment obligee upon demand the amount due under the
judgment, which amount may be recovered from such surety
or sureties after notice and summary hearing in the same
action. (17a)
Section 18. Disposition of money deposited. - Where the
party against whom attachment had been issued has
deposited money instead of giving counter-bond, it shall be
applied under the direction of the court to the satisfaction of
any judgment rendered in favor of the attaching party, and
after satisfying the judgment the balance shall be refunded to
the depositor or his assignee. If the judgment is in favor of
the party against whom attachment was issued, the whole
sum deposited must be refunded to him or his assignee.
(18a)
Section 19. Disposition of attached property where judgment
is for party against whom attachment was issued. - If
judgment be rendered against the attaching party, all the
proceeds of sales and money collected or received by the
sheriff, under the order of attachment, and all property
attached remaining in any such officers hands, shall be
delivered to the party against whom attachment was issued,
and the order of attachment discharged. (19a)
Section 20. Claim for damages on account of improper,
irregular or excessive attachment. - An application for
damages on account of improper, irregular or excessive
attachment must be filed before the trial or before appeal is
perfected or before the judgment becomes executory, with
due notice to the attaching party and his surety or sureties,
setting forth the facts showing his right to damages and the
amount thereof. Such damages may be awarded only after
proper hearing and shall be included in the judgment on the
main case.
If the judgment of the appellate court be favorable to the
party against whom the attachment was issued, he must
claim damages sustained during the pendency of the appeal
by filing an application in the appellate court, with notice to
the party in whose favor the attachment was issued or his
surety or sureties, before the judgment of the appellate court
becomes executory. The appellate court may allow the
application to be heard and decided by the trial court.
Nothing herein contained shall prevent the party against
whom the attachment was issued from recovering in the
same action the damages awarded to him from any property
of the attaching party not exempt from execution should the
bond or deposit given by the latter be insufficient or fail to
fully satisfy the award. (20a)
c. Complaint for Replevin with application for
Replevin – Rule 60 of the Rules of Court
RULE 60
REPLEVIN
Section 1. Application. - A party praying for the recovery of
possession of personal property may, at the commencement
of the action or at any time before answer, apply for an order
for the delivery of such property to him, in the manner
hereinafter provided. (1a)
Section 2. Affidavit and bond. - The applicant must show by
his own affidavit or that of some other person who personally
knows the facts:
(a) That the applicant is the owner of the property claimed,
particularly describing it, or is entitled to the possession
thereof;
(b) That the property is wrongfully detained by the adverse
party, alleging the cause of detention thereof according to
the best of his knowledge, information, and belief;
(c) That the property has not been distrained or taken for a
tax assessment or a fine pursuant to law, or seized under a
writ of execution or preliminary attachment, or otherwise
placed under custodia legis, or if so seized, that it is exempt
from such seizure or custody; and
(d) The actual mark et value of the property.
The applicant must also give a bond, executed to the
adverse party in double the value of the property as stated in
the affidavit aforementioned, for the return of the property to
the adverse party if such return be adjudged, and for the
payment to the adverse party of such sum as he may
recover from the applicant in the action. (2a)
Section 3. Order. - Upon the filing of such affidavit and
approval of the bond, the court shall issue an order and the
corresponding writ of replevin describing the personal
property alleged to be wrongfully detained and requiring the
sheriff forthwith to take such property into his custody. (3a)
Section 4. Duty of the sheriff. - Upon receiving such order,
the sheriff must serve a copy thereof on the adverse party,
together with a copy of the application, affidavit and bond,
and must forthwith take the property, if it be in the
possession of the adverse party, or his agent, and retain it in
his custody. If the property or any part thereof be concealed
in a building or enclosure, the sheriff must demand its
delivery, and if it be not delivered, he must cause the
building or enclosure to be broken open and take the
property into his possession. After the sheriff has taken
possession of the property as herein provided, he must keep
it in a secure place and shall be responsible for its delivery to
the party entitled thereto upon receiving his fees and
necessary expenses for taking and keeping the same. (4a)
Section 5. Return of property. - If the adverse party objects
to the sufficiency of the applicants bond, or of the surety or
sureties thereon, he cannot immediately require the return of
the property, but if he does not so object, he may, at any
time before the delivery of the property to the applicant,
require the return thereof, by filing with the court where the
action is pending a bond executed to the applicant, in double
the value of the property as stated in the applicants affidavit
for the delivery thereof to the applicant, if such delivery be
adjudged, and for the payment of such sum to him as may
be recovered against the adverse party, and by serving a
copy of such bond on the applicant. (5a)
Section 6. Disposition of property by sheriff. - If within five (5)
days after the taking of the property by the sheriff, the
adverse party does not object to the sufficiency of the bond,
or of the surety or sureties thereon; or if the adverse party so
objects and the court affirms its approval of the applicants
bond or approves a new bond, or if the adverse party
requires the return of the property but his bond is objected to
and found insufficient and he does not forthwith file an
approved bond, the property shall be delivered to the
applicant. If for any reason the property is not delivered to
the applicant, the sheriff must return it to the adverse party.
(6a)
Section 7. Proceedings where property claimed by third
person. - If the property taken is claimed by any person other
than the party against whom the writ of replevin had been
issued or his agent, and such person makes an affidavit of
his title thereto, or right to the possession thereof, stating the
grounds therefor, and serves such affidavit upon the sheriff
while the latter has possession of the property and a copy
thereof upon the applicant, the sheriff shall not be bound to
keep the property under replevin or deliver it to the applicant
unless the applicant or his agent, on demand of said sheriff,
shall file a bond approved by the court to indemnify the third-
party claimant in a sum not less than the value of the
property under replevin as provided in section 2 hereof. In
case of disagreement as to such value, the court shall
determine the same. No claim for damages for the taking or
keeping of the property may be enforced against the bond
unless the action therefor is filed within one hundred twenty
(120) days from the date of the filing of the bond.
The sheriff shall not be liable for damages, for the taking or
keeping of such property, to any such third-party claimant if
such bond shall be filed. Nothing herein contained shall
prevent such claimant or any third person from vindicating
his claim to the property, or prevent the applicant from
claiming damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the same or a separate
action.
When the writ of replevin is issued in favor of the Republic of
the Philippines, or any officer duly representing it, the filing of
such bond shall not be required, and in case the sheriff is
sued for damages as a result of the replevin, he shall be
represented by the Solicitor General, and if held liable
therefor, the actual damages adjudged by the court shall be
paid by the National Treasurer out of the funds to be
appropriated for the purpose. (7a)
Section 8. Return of papers. - The sheriff must file the order,
with his proceedings indorsed thereon, with the court within
ten (10) days after taking the property mentioned therein.
(8a)
Section 9. Judgment. - After trial of the issues, the court shall
determine who has the right of possession to and the value
of the property and shall render judgment in the alternative
for the delivery thereof to the party entitled to the same, or
for its value in case delivery cannot be made, and also for
such damages as either party may prove, with costs. (9a)
Section 10. Judgment to include recovery against sureties. -
The amount, if any, to be awarded to any party upon any
bond filed in accordance with the provisions of this Rule,
shall be claimed, ascertained, and granted under the same
procedure as prescribed in section 20 of Rule 57. (10a)
d. Entry of Appearance
e. Withdrawal of Counsel – Sec. 26, Rule 138 of the
Rules of Court
Section 26. Change of attorneys. — An attorney may retire
at any time from any action or special proceeding, by the
written consent of his client filed in court. He may also retire
at any time from an action or special proceeding, without the
consent of his client, should the court, on notice to the client
and attorney, and on hearing, determine that he ought to be
allowed to retire. In case of substitution, the name of the
attorney newly employed shall be entered on the docket of
the court in place of the former one, and written notice of the
change shall be given to the advance party.
A client may at any time dismiss his attorney or substitute
another in his place, but if the contract between client and
attorney has been reduced to writing and the dismissal of the
attorney was without justifiable cause, he shall be entitled to
recover from the client the full compensation stipulated in the
contract. However, the attorney may, in the discretion of the
court, intervene in the case to protect his rights. For the
payment of his compensation the attorney shall have a lien
upon all judgments for the payment of money, and
executions issued in pursuance of such judgment, rendered
in the case wherein his services had been retained by the
client.
f. Affidavit of Service – Rule 13, Section 16 of the
Rules of Court
Section 16. Proof of filing. - The filing of a pleading or any
other court submission shall be proved by its existence in the
record of the case.
(a) If the pleading or any other court submission is not in the
record, but is claimed to have been filed personally, the filing
shall be prove[n] by the written or stamped acknowledgment
of its filing by the clerk of court on a copy of the pleading or
court submission;
(b) If the pleading or any other court submission was filed by
registered mail, the filing shall be proven by the registry
receipt and by the affidavit of the person who mailed
it, containing a full statement of the date and place of deposit
of the mail in the post office in a sealed envelope addressed
to the court, with postage fully prepaid, and with instructions
to the postmaster to return the mail to the sender after ten
(10) calendar days if not delivered.
(c) If the pleading or any other court submission was filed
through an accredited courier service, the filing shall be
proven by an affidavit of service of the person who brought
the pleading or other document to the service provider,
together with the couriers official receipt and document
tracking number.
(d) If the pleading or any other court submission was filed by
electronic mail. the same shall be proven by an affidavit of
electronic filing of the filing party accompanied by a paper
copy of the pleading or other document transmitted or a
written or stamped acknowledgment of its filing by the clerk
of court. If the paper copy sent by electronic mail was filed by
registered mail. paragraph (b) of this Section applies.
(e) If the pleading or any other court submission was filed
through other authorized electronic means, the same shall
be proven by an affidavit of electronic filing of the filing party
accompanied by a copy of the electronic acknowledgment of
its filing by the court. (12a)
g. Answer with Counterclaim – Rules 8, 9 and 16 of
the Rules of Court;
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)
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)
Section 3. Conditions precedent. - In any pleading. a general
averment of the performance or occurrence of all conditions
precedent shall be sufficient. (3)
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 pleaders knowledge. (4)
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)
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)
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)
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)
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)
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)
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)
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)
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 courts 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)
RULE 9
EFFECT OF FAILURE TO PLEAD
Section 1. Defenses and objections not pleaded. - Defenses
and objections not pleaded either in a motion to dismiss or in
the answer are deemed waived. However, when it appears
from the pleadings or the evidence on record that the court
has no jurisdiction over the subject matter, that there is
another action pending between the same parties 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.
(1)
Section 2. Compulsory counterclaim, or cross-claim, not set
up barred. - A compulsory counterclaim, or a cross-claim, not
set up shall be barred. (2)
Section 3. Default; [d]eclaration of. - If the defending party
fails to answer within the time allowed therefor, the court
shall, upon motion of the claiming party with notice to the
defending party, and proof of such failure, declare the
defending party in default. Thereupon, the court shall
proceed to render judgment granting the claimant such relief
as his or her pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence. Such
reception of evidence may be delegated to the clerk of court.
(a) Effect of order of default. - A party in default shall be
entitled to notice[s] of subsequent proceedings but shall not
to take part in the trial.
(b) Relief from order of default. - A party declared in default
may at any time after notice thereof and before judgment, file
a motion under oath to set aside the order of default upon
proper showing that his or her failure to answer was due to
fraud, accident, mistake or excusable negligence and that
he or she has a meritorious defense. In such case, the order
of default may be set aside on such terms and conditions as
the judge may impose in the interest of justice.
(c) Effect of partial default. - When a pleading asserting a
claim states a common cause of action against several
defending parties, some of whom answer and the others fail
to do so, the court shall try the case against all upon the
answers thus filed and render judgment upon the evidence
presented.
(d) Extent of relief to be awarded. - A judgment rendered
against a party in default shall [neither] exceed the amount
or be different in kind from that prayed for nor award
unliquidated damages.
(e) Where no defaults allowed. - If the defending party in
action for annulment or declaration of nullity of marriage or
for legal separation fails to answer, the court shall order
the Solicitor General or his or her deputized public
prosecutor, to investigate whether or not a collusion between
the parties exists, and if there is no collusion, to intervene for
the State in order to see to it that the evidence submitted is
not fabricated. (3a)
RULE 16
MOTION TO DISMISS
[Provisions either deleted or transposed]
Permanent Savings and Loan Bank v.
Velarde, G.R. NO. 140608. September 23, 2004;
439 SCRA 1 (2004) - SUPRA
h. Motion to Dismiss – Rules 15 and 16 of the Rules
of Court
RULE 15 MOTIONS
Section 1. Motion defined. - A motion is an application for
relief other than by a pleading. (1)
Section 2. Motions must be in writing. - All motions shall be
in writing except those made in open court or in the course of
a hearing or trial.
A motion made in open court or in the course of a hearing or
trial should immediately be resolved in open court after the
adverse party is given the opportunity to argue his or her
opposition thereto.
When a motion is based on facts not appearing on record,
the court may hear the matter on affidavits or depositions
presented by the respective parties, but the court may direct
that the matter be heard wholly or partly on oral testimony or
depositions. (2a)
Section 3. Contents. - Amotion shall state the relief sought to
be obtained and the grounds upon which it is based, and if
required by these Rules or necessary to prove facts alleged
therein, shall be accompanied by supporting affidavits and
other papers. (3)
[Section 4. Hearing of motion. - Deleted]
Section 4. Non-litigious motions. - Motions which the court
may act upon without prejudicing the rights of adverse
parties are non-litigious motions. These motions include:
a) Motion for the issuance of an alias summons;
b) Motion for extension to file answer;
c) Motion for postponement;
d) Motion for the issuance of a writ of execution;
e) Motion for the issuance of an alias writ of execution;
f) Motion for the issuance of a writ of possession;
g) Motion for the issuance of an order directing the sheriff to
execute the final certificate of sale; and
h) Other similar motions.
These motions shall not be set for hearing and shall be
resolved by the court within five (5) calendar days from
receipt thereof. (n)
Section 5. Litigious motions. - (a) Litigious motions include:
1) Motion for bill of particulars;
2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has been
filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
11) Motion for summary judgment;
12) Demurrer to evidence;
13) Motion to declare defendant in default; and
14) Other similar motions.
(b) All motions shall be served by personal service,
accredited private courier or registered mail. or electronic
means so as to ensure their receipt by the other party.
(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. (n)
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. (5a)
Section 7. Proof of service necessary. - No written motion
shall be acted upon by the court without proof of service
thereof, pursuant to Section 5(b) hereof. (6a)
Section 8. Motion day. - Except for motions requiring
immediate action, where the court decides to conduct
hearing on a litigious motion, the same shall be set on a
Friday. (7a)
Section 9. Omnibus motion. - Subject to the provisions of
[S]ection 1 of Rule 9, a motion attacking a pleading, order,
judgment, or proceeding shall include all objections then
available, and all objections not so included shall be deemed
waived. (8a)
Section 10. Motion for leave. - A motion for leave to file a
pleading or motion shall be accompanied by the pleading or
motion sought to be admitted. (9)
Section 11. Form. - The Rules applicable to pleadings shall
apply to written motions so far as concerns caption,
designation, signature, and other matters of form. (10)
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.
(b) Motion to hear affirmative defenses;
(c) Motion for reconsideration of the courts action on the
affirmative defenses;
(d) Motion to suspend proceedings without a temporary
restraining order or injunction issued by a higher court;
(e) Motion for extension of time to file pleadings, affidavits or
any other papers, except a motion for extension to file an
answer as provided by Section 11, Rule 11; and
(f) Motion for postponement intended for delay, except if it is
based on acts of God, force majeure or physical inability of
the witness to appear and testify. If the motion is granted
based on such exceptions, the moving party shall be warned
that the presentation of its evidence must still be terminated
on the dates previously agreed upon.
A motion for postponement, whether written or oral. shall. at
all times, be accompanied by the original official receipt from
the office of the clerk of court evidencing payment of the
postponement fee under Section 21 (b), Rule 14 L to be
submitted either at the time of the filing of said motion or not
later than the next hearing date. The clerk of court shall not
accept the motion unless accompanied by the original
receipt. (n)
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 plaintiffs 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. (5, R16)
RULE 16
MOTION TO DISMISS
[Provisions either deleted or transposed]
i. Motion to Admit – Sec. 10, Rule 15 of the Rules of
Court
Section 10. Motion for leave. - A motion for leave to file a
pleading or motion shall be accompanied by the pleading or
motion sought to be admitted. (9)
j. Motion for Extension of Time – Sec. 12(e), Rule 15
and Section 11, Rule 11 of the Rules of Court
(e) Where no defaults allowed. - If the defending party in
action for annulment or declaration of nullity of marriage or
for legal separation fails to answer, the court shall order
the Solicitor General or his or her deputized public
prosecutor, to investigate whether or not a collusion between
the parties exists, and if there is no collusion, to intervene for
the State in order to see to it that the evidence submitted is
not fabricated. (3a)
l. Motion to Lift Order of Default – Sec. 3, Rule 9 of
the Rules of Court
m. Ex-Parte Motion to Set Case for Pre-Trial – Sec. 1,
Rule 18 of the Rules of Court

Section 1. When conducted. - After the

Section 12. Prohibited motions. - The following motions shall
not be allowed:
(e) Motion for extension of time to file pleadings, affidavits or
any other papers, except a motion for extension to file an
answer as provided by Section 11, Rule 11; and
Section 11. Extension of time to file an answer. - A
defendant may, for meritorious reasons, be granted an
additional period of not more than thirty (30) calendar days to
file an answer. A defendant is only allowed to file one (1)
motion for extension of time to file an answer.
A motion for extension to file any pleading, other than an
answer, is prohibited and considered a mere scrap of paper.
The court, however, may allow any other pleading to be filed
after the time fixed by these Rules. (11a)
last responsive pleading has been served and filed, the
branch clerk of court shall issue, within five (5) calendar days
from filing, a notice of pre-trial which shall be set not later
than sixty (60) calendar days from the filing of the last
responsive pleading. (1a)
n. Special Power of Attorney for Pre-Trial – Sec. 4,
Rule 18 of the Rules of Court
Section 4. Appearance of [p]arties. - It shall be the duty of
the parties and their counsel to appear at the pre-trial, court-
annexed mediation, and judicial dispute resolution, if
necessary. The non-appearance of a party and counsel may
be excused only for acts of God, force majeure, or duly
substantiated physical inability.

k. Motion to Declare Defendant in Default – Sec. 3,

Rule 9 of the Rules of Court

Section 3. Default; [d]eclaration of. - If the defending party

fails to answer within the time allowed therefor, the court
shall, upon motion of the claiming party with notice to the
defending party, and proof of such failure, declare the
defending party in default. Thereupon, the court shall
proceed to render judgment granting the claimant such relief
as his or her pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence. Such
reception of evidence may be delegated to the clerk of court.

(a) Effect of order of default. - A party in default shall be

entitled to notice[s] of subsequent proceedings but shall not
to take part in the trial.

(b) Relief from order of default. - A party declared in default

may at any time after notice thereof and before judgment, file
a motion under oath to set aside the order of default upon
proper showing that his or her failure to answer was due to
fraud, accident, mistake or excusable negligence and that
he or she has a meritorious defense. In such case, the order
of default may be set aside on such terms and conditions as
the judge may impose in the interest of justice.

(c) Effect of partial default. - When a pleading asserting a

claim states a common cause of action against several
defending parties, some of whom answer and the others fail
to do so, the court shall try the case against all upon the
answers thus filed and render judgment upon the evidence
presented.

(d) Extent of relief to be awarded. - A judgment rendered

against a party in default shall [neither] exceed the amount
or be different in kind from that prayed for nor award
unliquidated damages.
[G.R. No. 147793. December 11, 2003.] reason. Finally, when it became apparent that the parties would not be
able to arrive at an amicable settlement, the trial court scheduled a pre-
BOAZ INTERNATIONAL TRADING CORPORATION and F. R. trial conference anew for 20 October 1998.
CEMENT CORPORATION, Petitioners, v. WOODWARD JAPAN,
INC. and NORTH FRONT SHIPPING SERVICES, "On the scheduled day of the pre-trial conference, both Woodward and
INC., Respondents. its counsel failed to appear. Consequently, counsel for Boaz and F. R.
Cement moved that Woodward be declared non-suited, that the
DECISION complaint against them be dismissed and that they be allowed to
presence evidence on their counterclaim.

PANGANIBAN, J.: "Third-party defendant North Front likewise filed a motion to dismiss
the third-party complaint which was not objected to by third-party
plaintiffs Boaz and F. R. Cement.
The liberal construction of the Rules of Court is resorted to only to
promote substantial justice, not to delay or undermine legal processes. "In an Order dated 20 October 1998, the court a quo granted the
The Rules are designed to assure the orderly and predictable course of motion of Boaz and F. R. Cement to dismiss the complaint of
justice. Unduly relaxing them would be an injustice to the innocent Woodward and the motion of North Front to dismiss the third-party
parties who honor and obey them, and unfairly reward those who complaint of Boaz and F. R. Cement.
neglect or fail to follow them.
"Counsel for Woodward thereafter filed an urgent ex parte motion 1) to
The Case reconsider the Order of 20 October 1998, 2) to set aside the same
Order allowing Boaz and F. R. Cement to present their evidence ex
parte and 3) to allow Woodward to present its evidence. Petitioners
Before us is a Petition for Review 1 under Rule 45 of the Rules of Boaz and F. R. Cement filed their opposition thereto.
Court, assailing the January 18, 2001 Decision 2 and the April 2, 2001
Resolution 3 of the Court of Appeals (CA) in CA-GR SP No. 56848. We "In an Order dated 16 February 1999, Woodward’s urgent ex[-]parte
quote the decretal portion of the Decision:chanrob1es virtua1 1aw motion was denied for being filed out of time.
1ibrary
"On 28 April 1998, Boaz and F. R. Cement presented their evidence
"WHEREFORE, premises considered, the Order dated 09 August 1999 consisting of the testimony of one Jose Ernesto Rodriguez and
is MODIFIED in the sense that the third-party complaint of Boaz reserved the right to present the original of certain documents. No
International Trading Corp. and F. R. Cement Corp. against North formal offer of evidence has yet been made by Boaz and F. R.
Front Shipping Services, Inc. must be as it is hereby reinstated. In all Cement.
other respects, the Order is AFFIRMED. Finally, the writ of preliminary
injunction issued by this Court on 29 June 2000 is perforce dissolved." "On 25 June 1999, Woodward filed a ‘Motion to Reinstate Plaintiff’s
4 (Woodward’s) Complaint and Allow Them to Present Evidence Ex-
Parte.’ In support of its motion, Woodward attached the affidavit of Atty.
The assailed Resolution denied petitioners’ Motion for Pierre M. Alcantara, as associate lawyer of the law firm of Belo, Gozon,
Reconsideration. Parel, Asuncion and Lucila Law Office which handled Woodward’s
case in the court a quo. The affidavit of Atty. Alcantara explained the
On the other hand, the dispositive portion of the August 9, 1999 Order circumstances why Woodward was not represented in the pre-trial
of the Regional Trial Court (RTC) of Makati City (Branch 135), which conference on 20 October 1998. The affidavit likewise contains Atty.
the CA later modified, reads as follows:jgc:chanrobles.com.ph Alcantara’s tacit admission of his neglect to fully protect the interests of
Woodward.
"WHEREFORE, premises considered, Order is hereby
issued:chanrob1es virtual 1aw library "Boaz and F. R. Cement filed their opposition to Woodward’s motion to
which Woodward filed a reply.
‘1. Reinstating plaintiff’s complaint and allowing plaintiff to present its
evidence on its complaint; "In an Order dated 9 August 1999, the trial court granted Woodward’s
‘Motion to Reinstate Plaintiff’s (Woodward’s) Complaint and Allow
‘2. Allowing plaintiff to refute and/or present evidence against the ex- Them to Present Evidence Ex-Parte, . . .
pare evidence presented by defendants on their counterclaim.’" 5
x x x
The Facts
"Boaz and F. R. Cement moved for reconsideration but the trial court in
The facts of the case are summarized by the CA as its Order of 12 November 1999 denied the same." 6
follows:jgc:chanrobles.com.ph
Imputing grave abuse of discretion on the part of the trial court,
"Respondent Woodward Japan, Inc. (Woodward, for brevity) filed a petitioners elevated the case to the CA under Rule 65.chanrob1es
complaint for a ‘Sum of Money and Damages’ against petitioners Boaz virtua1 1aw 1ibrary
International Trading Corp. (Boaz, for brevity) and F. R. Cement Corp.
(F. R. Cement, for brevity). The complaint, docketed as Civil Case No. Ruling of the Court of Appeals
96-1440, was raffled to the RTC of Makati, Branch 135, presided over
by public respondent Judge Francisco B. Ibay.
In prosecuting the claim of Woodward against petitioners, its lawyers
"Petitioners Boaz and F. R. Cement filed their [A]nswer to the acted negligently, according to the CA’s ruling, which we
complaint as well as a third party complaint against North Front quote:jgc:chanrobles.com.ph
Shipping Services, Inc. (North Front[,] for brevity).
"As admitted by Atty. Pierre M. Alcantara in his affidavit which was
"Respondent North Front filed its answer to the third-party complaint appended to Woodward’s motion to reinstate complaint, a high fever
with a counterclaim against the third-party plaintiffs. prevented him from attending the pre-trial conference scheduled on 20
October 1998. This fact was made known to the handling lawyer, Atty.
"The court a quo scheduled a pre-trial conference for 04 November Jonel S. Mercado. However, no action was taken by Atty. Mercado to
1997. This initial pre-trial conference was however postponed to give assign a substitute counsel for the pre-trial conference. Consequently,
the parties time to settle their respective claims amicably. Succeeding Woodward was declared non-suited and its complaint against Boaz
schedules of pre-trial conference were likewise cancelled for the same and F. R. Cement was dismissed. To compound the initial neglect of
the two lawyers, neither of them had seen fit to take appropriate action Jurisdiction of the RTC to Reverse Its October 20, 1998 Order
to protect their client’s interest. While Atty. Alcantara filed a motion for
reconsideration, the same was filed out of time, hence, denied by the Indisputably, the August 9, 1999 Order reversed the one issued on
trial court. Worse, both Attys. Alcantara and Mercado failed to inform October 20, 1998, which, as early as November 15, 1998, was already
the handling partner, Atty. Enrique Belo, and most of all, the client final as to Woodward. This reversal cannot be countenanced. When
Woodward of the status of the case a quo. Consequently, the order of the dismissal of an order attains finality through the lapse of the 15-day
dismissal attained finality leaving Woodward no option but to file the reglementary period, the issuing court loses jurisdiction and control
motion to reinstate its complaint." 7 over that order, and it can no longer make any disposition inconsistent
with its dismissal. 10 Upon the finality of the dismissal, the court has no
However, the appellate court further ruled that" [c]ounsel’s gross more power to amend, modify, reverse or set aside the order. 11
negligence should not be allowed to deprive Woodward of a chance to
prove its claim as this would amount to injustice and outright Legal Basis of the Motion Reinstating the Complaint
deprivation of property." It further held that "when the court a quo
granted Woodward’s motion to reinstate the complaint, it in effect The Motion to Reinstate Complaint asked the trial court to reverse or
amended, in the interest of justice, its previous order declaring reconsider its Order dismissing the Complaint. Hence, this Motion was
Woodward non-suited." All considered, the CA found that the trial court in reality Woodward’s second motion for reconsideration, as it was filed
did not act without or in excess of jurisdiction or with grave abuse of months after the denial of its first one. Section 5 of Rule 37 explicitly
discretion when it reinstated Woodward’s Complaint. states that" [n]o party shall be allowed a second motion for
reconsideration of a judgment or final order." Clearly, Woodward’s
Hence, this Petition. 8 Motion to Reinstate its Complaint was not sanctioned by the Rules of
Court or the law.
The Issues
Liberal Interpretation of the Rules of Court

Petitioners raise the following issues for our Respondent Woodward pushes for a liberal interpretation of the Rules
consideration:jgc:chanrobles.com.ph of Court. It insists that the emerging trend in our jurisprudence is to
afford all litigants the amplest opportunity for the proper and just
"Whether or not the Court of Appeals erred in ruling that Judge Ibay determination of their cause, free from the constraints of technicalities.
acted within the ambit of his jurisdiction and without grave abuse of
discretion when he granted Woodward’s ‘Motion To Reinstate Indeed, espoused by jurisprudence and the Rules is liberal
Complaint.’ interpretation which, however, is geared towards the attainment of a
certain goal: "a just, speedy and inexpensive disposition of every
"Whether or not Judge Ibay acted without or in excess of his action and proceeding." 12 Respondent Woodward has failed to show
jurisdiction or with grave abuse of discretion amounting to lack or how a liberal construction of the Rules, which it violated with impunity,
excess of jurisdiction in ordering the reinstatement of the complaint in would result in the attainment of that goal. On the other hand, there are
Civil Case No. 96-1440. a number of reasons that justify the disallowance of such interpretation
in the present case.chanrob1es virtua1 law library
- Whether or not Woodward was bound by the negligence of its
counsel Pretrial

- Whether or not the appearance of the parties at the pre-trial First, the rules on pretrial were designed precisely to secure the just,
conference is mandatory. speedy and inexpensive disposition of an action. The parties
themselves — not only their counsels — are required to be present, so
- Whether or not Woodward’s consistent failure to observe the that they can discuss and possibly agree on a settlement and thus end
provisions of the Rules of Court should be considered fatal to its cause. the case justly, speedily and inexpensively right there and then. The
Rules 13 explicitly impose upon the former the duty to appear at the
- Whether or not the reinstatement of Woodward’s Complaint had any pretrial conference. The representative of Woodward, as well as its
legal basis. counsel, failed to do so on the date set for the purpose — not just on
October 20, 1998, but also earlier, on September 17, 1998. By its
- Whether or not Judge Ibay already lost jurisdiction to amend, modify, unexplained nonappearance, it inexcusably delayed the case and even
reverse or set aside his dismissal order dated 20 October 1998 on 10 caused added expense to the opposing party who had come to court in
November 1998." 9 obedience to the Rules. Evidently, the RTC’s October 20, 1998 Order
dismissing the case was proper and in accord with Section 5 of Rule
The main issue to be resolved is whether the CA erred in sustaining 18, which provides that" [t]he failure of the plaintiff to appear [for
the RTC’s Order reinstating the Complaint of Woodward. pretrial] shall be cause for dismissal of the action."cralaw virtua1aw
library
The Court’s Ruling Procedural Rules

Second, after violating the rules on pretrial, Woodward had the temerity
The Petition has merit. to file a Motion for Reconsideration beyond the 15-day reglementary
period, again in violation of the Rules. Then, upon denial of that
Main Issue:chanrob1es virtual 1aw library Motion, instead of properly elevating the denial to the appellate court
for review, it filed a Motion to Reinstate Complaint. As previously
Reinstatement of the Complaint explained, the latter Motion amounted to a second motion for
reconsideration, which is prohibited by the Rules. By its acts,
On October 20, 1998, Woodward and its counsel failed to appear for a Woodward unnecessarily delayed the disposition of the case and
pre-trial conference in Civil Case No. 96-1440. Hence, on motion of caused additional expenses to all involved. Furthermore, such acts
petitioners, its Complaint was dismissed in an Order issued on the indicate a propensity to violate the Rules or a gross ignorance thereof,
same day. Respondent Woodward filed a Motion for Reconsideration either of which deserves nothing less than opprobrium.
of the Order on November 12, 1998, 17 days after it received a copy
thereof. The trial court denied the Motion for being filed out of time. Negligence of Counsel
On June 25, 1999, more than seven (7) months after the finality of the Third, the CA did not err in finding negligence on the part of the
November 12, 1998 Order, Woodward filed a "Motion to Reinstate [its] counsel of Woodward, which is nonetheless bound by such
Complaint and Allow [it] to Present Evidence." This Motion was granted negligence. "Settled [is the] rule that the negligence of counsel binds
by the RTC in its August 9, 1999 Order. the client." 14 We find no cogent reason to depart from this settled rule,
especially because the counsel’s negligence in the present case has
not been sufficiently explained.

To cater to the pleas of Woodward and to reinstate its Complaint would

put a premium on negligence and thus encourage the non-termination
of this case. Like all other clients, Respondent Woodward is bound by
the acts of its counsel in the conduct of a case and has to bear with the
consequences thereof. It cannot thereafter be heard to complain that
the result might have been different had its counsel proceeded
differently. The rationale for the rule is easily discernible. If the
negligence of counsel be admitted as a reason for opening a case,
there would never be an end to litigation so long as there is a new
counsel to be hired every time it is shown that the prior one had not
been sufficiently diligent, experienced or learned. 15

Merit of Respondent’s Collection Case

Fourth, Respondent Woodward has failed to demonstrate that it has a

meritorious case. It filed a collection case against Petitioner Boaz
International Trading Corp. (hereinafter referred to as "Boaz") for
demurrage charges in the total sum of US$75,065.96. Yet it has failed
to show prima facie any agreement on the payment of demurrages.
The April 18, 1995 Letter, 16 which Woodward unilaterally made and
which Petitioner Boaz did not sign, does not show that the latter agreed
to pay demurrages of "US$6,500/half despatch" in case the discharge
rate fell below 2,500MT.

Contrary to Woodward’s contention, Boaz has not admitted the April

18, 1995 Letter-Agreement. Paragraph 1.8 of the Answer is not a
"negative pregnant." Woodward itself states that a "negative pregnant
is that form of denial which at the same time involves an affirmative
implication favorable to the opposing party." Since the aforementioned
paragraph is explicitly an admission, not a denial, it follows that it
cannot be taken as a denial pregnant with an admission of substantial
facts.

To sum up, the trial court gravely abused its discretion in issuing its
August 9, 1999 Order, considering that (1) its October 20, 1998 Order
was already final; (2) the reinstatement of the Complaint is not in
accordance with the Rules of Court or the law; and (3) there is no
justification for liberally construing the Rules in order to serve the ends
of justice. Corollary to this conclusion, the CA erred in affirming the
August 9, 1999 Order of the RTC and in ordering the reinstatement of
the third-party Complaint of petitioners against North Front Shipping
Services, Inc.

WHEREFORE, the Petition is GRANTED. The August 9, 1999 Order of

the trial court is SET ASIDE and NULLIFIED. No pronouncement as to
costs.

SO ORDERED.
 o. Pre-Trial Brief – Sec. 6, Rule 18 of the Rules of
Court; A.M. No. 03-1-09-SC, SC En Banc
Resolution dated July 13, 2004, Rule on
Guidelines to be Observed by Trial Court Judges
and Clerks of Court in the Conduct of Pre-trial and
Use of Deposition-Discovery Measures
Section 6. Pre-trial brief - The parties shall file with the court
and serve on the adverse party, in such manner as shall
ensure their receipt thereof at least three (3) calendar days
before the date of the pre-trial, their respective pre-trial briefs
which shall contain, among others:
(a) A concise statement of the case and the reliefs prayed
for;
(b) A summary of admitted facts and proposed stipulation of
facts;
(c) The main factual and legal issues to be tried or resolved;
(d) The propriety of referral of factual issues to
commissioners;
(e) The documents or other object evidence to be mark
ed, stating the purpose thereof;
(f) The names of the witnesses, and the summary of their
respective testimonies; and
(g) A brief statement of points of law and citation of
authorities.
Failure to file the pre-trial brief shall have the same effect as
failure to appear at the pre-trial. (8)
A.M. No. 03-1-09-SC
RE: PROPOSED RULE ON GUIDELINES TO BE
OBSERVED BY TRIAL COURT JUDGES AND CLERKS
OF COURT IN THE CONDUCT OF PRE-TRIAL AND USE
OF DEPOSITION-DISCOVERY MEASURES
RESOLUTION
Acting on the recommendation of the Chairman of the
Committee on Revision of the Rules of Court submitting for
this Court's consideration and approval the Proposed Rule
on Guidelines to be Observed by Trial Court Judges and
Clerks of Court in the Conduct of Pre-Trial and Use of
Deposition-Discovery Measures, the Court Resolved to
APPROVE the same. The said Rule is hereto attached as an
integral part of this Resolution.
The Rule shall take effect on August 16, 2004 following its
publication in a newspaper of general circulation not later
than July 30, 2004.
GUIDELINES TO BE OBSERVED BY TRIAL COURT
JUDGES AND CLERKS OF COURT IN THE CONDUCT OF
PRE-TRIAL AND USE OF DEPOSITION-DISCOVERY
MEASURES
The use of pre-trial and the deposition-discovery measures
are undeniably important and vital components of case
management in trial courts. To abbreviate court proceedings,
ensure prompt disposition of cases and decongest court
dockets, and to further implement the pre-trial guidelines laid
down in Administrative Circular No. 3-99 dated January 15,
1999 and except as otherwise specifically provided for in
other special rules, the following guidelines are issued for the
observance and guidance of trial judges and clerks of court:
I. PRE-TRIAL
A. Civil Cases
1. Within one day from receipt of the complaint:
1.1 Summons shall be prepared and shall contain a reminder
to defendant to observe restraint in filing a motion to dismiss
and instead allege the grounds thereof as defenses in the
Answer, in conformity with IBP-OCA Memorandum on Policy
Guidelines dated March 12, 2002. A copy of the summons is
hereto attached as Annex "A;" and
1.2 The court shall issue an order requiring the parties to
avail of interrogatories to parties under Rule 25 and request
for admission by adverse party under Rule 26 or at their
discretion make use of dispositions under Rule 23 or other
measures under Rules 27 and 28 within five days from the
filing of the answer. 1 A copy of the order shall be served
upon the defendant together with the summons and
upon the plaintiff.
Within five (5) days from date of filing of the reply, 2 the
plaintiff must promptly move ex parte that the case be set for
pre-trial conference. 3 If the plaintiff fails to file said motion
within the given period, the Branch COC shall issue a notice
of pre-trial.
2. The parties shall submit, at least three (3) days before the
pre-trial, pre-trial briefs containing the following: 4
a. A statement of their willingness to enter into an amicable
settlement indicating the desired terms thereof or to submit
the case to any of the alternative modes of dispute
resolution;
b. A summary of admitted facts and proposed stipulation of
facts;
c. The issues to be tried or resolved;
d. The documents or exhibits to be presented, stating the
purpose thereof. (No evidence shall be allowed to be
presented and offered during the trial in support of a party's
evidence-in-chief other than those that had been earlier
identified and pre-marked during the pre-trial, except if
allowed by the court for good cause shown);
e. A manifestation of their having availed or their intention to
avail themselves of discovery procedures or referral to
commissioners; and
f. The number and names of the witnesses, the substance of
their testimonies, and the approximate number of hours that
will be required by the parties for the presentation of their
respective witnesses.
A copy of the Notice of Pre-trial Conference is hereto
attached as Annex "B."
The rule on the contents of the pre-trial brief must strictly be
complied with.
The parties are bound by the representations and
statements in their respective pre-trial briefs.
3. At the start of the pre-trial conference, the judge shall
immediately refer the parties and/or their counsel if
authorized by their clients to the PMC mediation unit for
purposes of mediation if available. 5 If mediation fails, the
judge will schedule the continuance of the pre-trial
conference. Before then, the Judge may refer the case to the
Branch COC for a preliminary conference to assist the
parties in reaching a settlement, to mark the documents or
exhibits to be presented by the parties and copies thereof to
be attached to the records after comparison and to consider
such other matters as may aid in its prompt disposition. 6
During the preliminary conference, the Branch COC shall
also ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of the
documents marked as exhibits. The proceedings during the
preliminary conference shall be recorded in the "Minutes of
Preliminary Conference" to be signed by both parties and/or
counsel, the form of which is hereto attached as Annex "C".
The minutes of preliminary conference and the exhibits shall
be attached by the Branch COC to the case record before
the pre-trial
4. Before the continuation of the pre-trial conference, the
judge must study all the pleadings of the case, and
determine the issues thereof and the respective positions of
the parties thereon to enable him to intelligently steer the
parties toward a possible amicable settlement of the case,
or, at the very least, to help reduce and limit the issues. The
judge should not allow the termination of pre-trial simply
because of the manifestation of the parties that they cannot
settle the case. He should expose the parties to the
advantages of pre-trial. He must also be mindful that there
are other important aspects of the pre-trial that ought to be
taken up to expedite the disposition of the case. 7
The Judge with all tact, patience, impartiality and with due
regard to the rights of the parties shall endeavor to persuade
them to arrive at a settlement of the dispute. 8 The court
shall initially ask the parties and their lawyers if an amicable
settlement of the case is possible. If not, the judge may
confer with the parties with the opposing counsel to consider
the following:
a. Given the evidence of the plaintiff presented in his pre-trial
brief to support his claim, what manner of compromise is
considered acceptable to the defendant at the present
stage?
b. Given the evidence of the defendant described in his pre-
trial brief to support his defense, what manner of
compromise is considered acceptable to the plaintiff at the
present stage?
If not successful, the court shall confer with the party and his
counsel separately.
If the manner of compromise is not acceptable, the judge
shall confer with the parties without their counsel for the
same purpose of settlement.
5. If all efforts to settle fail, the trial judge shall:
a. Adopt the minutes of preliminary conference as part of the
pre-trial proceedings and confirm markings of exhibits or
substituted photocopies and admissions on the genuineness
and due execution of documents;
b. Inquire if there are cases arising out of the same facts
pending before other courts and order its consolidation if
warranted;
c. Inquire if the pleadings are in order. If not, order the
amendments if necessary;
d. Inquire if interlocutory issues are involved and resolve the
same;
e. Consider the adding or dropping of parties;
f. Scrutinize every single allegation of the complaint, answer
and other pleadings and attachments thereto and the
contents of documents and all other evidence identified and
pre-marked during pre-trial in determining further admissions
of facts and documents. To obtain admissions, the Court
shall ask the parties to submit the depositions taken under
Rule 23, the answers to written interrogatories under Rule 25
and the answers to request for admissions by the adverse
party under Rule 26. It may also require the production of
documents or things requested by a party under Rule 27 and
the results of the physical and mental examination of
persons under Rule 28;
g. Define and simplify the factual and legal issues arising
from the pleadings. Uncontroverted issues and frivolous
claims or defenses should be eliminated. For each factual
issue, the parties/counsel shall state all the evidence to
support their positions thereon. For each legal issue,
parties/counsel shall state the applicable law and
jurisprudence supporting their respective positions thereon. If
only legal issues are presented, the judge shall require the
parties to submit their respective memoranda and the court
can proceed to render judgment; 9
h. Determine the propriety of rendering a summary judgment
dismissing the case based on the disclosures made at the
pre-trial or a judgment based on the pleadings, evidence
identified and admissions made during pre-trial; 10
i. Ask parties to agree on the specific trial dates for
continuous trial in accordance with Circular No. 1-89 dated
January 19, 1989; adhere to the case flow chart determined
by the court, which shall contain the different stages of the
proceedings up to the promulgation of the decision and use
the time frame for each stage in setting the trial dates.
The One-Day Examination of Witness Rule, that is, a witness
has to be fully examined in one (1) day only, shall be strictly
adhered to subject to the courts' discretion during trial on
whether or not to extend the direct and/or cross-examination
for justifiable reasons. On the last hearing day allotted for
each party, he is required to make his formal offer of
evidence after the presentation of his last witness and the
opposing party is required to immediately interpose his
objection thereto. Thereafter, the Judge shall make the ruling
on the offer of evidence in open court. However the judge
has the discretion to allow the offer of evidence in writing in
conformity with Section 35, Rule 132;
j. Determine the most important witnesses to be heard and
limit the number of witnesses (Most Important Witness Rule).
The facts to be proven by each witness and the approximate
number of hours per witness shall be fixed;
k. At his discretion, order the parties to use the affidavits of
witnesses as direct testimonies subject to the right to object
to inadmissible portions thereof and to the right of cross-
examination by the other party. The affidavits shall be based
on personal knowledge, shall set forth facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.
The affidavits shall be in question and answer form, and
shall comply with the rules on admissibility of evidence;
l. Require the parties and/or counsel to submit to the Branch
COC the names, addresses and contact numbers of the
witnesses to be summoned by subpoena;
m. Order the delegation of the reception of evidence to the
Branch COC under Rule 30; and
n. Refer the case to a trial by commissioner under Rule 32
During the pre-trial, the judge shall be the one to ask
questions on issues raised therein and all questions or
comments by counsel or parties must be directed to the
judge to avoid hostilities between the parties.
6. The trial judge shall schedule the pre-trial in the afternoon
sessions and set as many pre-trial conferences as may be
necessary.
7. All proceedings during the pre-trial shall be recorded. The
minutes of each pre-trial conference shall contain matters
taken up therein more particularly admissions of facts and
exhibits and shall be signed by the parties and their counsel.
8. The judge shall issue the required Pre-Trial Order within
ten (10) days after the termination of the pre-trial. Said Order
shall bind the parties, limit the trial to matters not disposed of
and control the course of the action during the trial. A sample
Pre-Trial Order is hereto attached as Annex "D."
However, the Court may opt to dictate the Pre-Trial Order in
open court in the presence of the parties and their counsel
and with the use of a computer, shall have the same
immediately finalized and printed. Once finished, the parties
and/or their counsel shall sign the same to manifest their
conformity thereto.
9. The court shall endeavor to make the parties agree to an
equitable compromise or settlement at any stage of the
proceedings before rendition of judgment.
B. Criminal Cases
1. Before arraignment, the Court shall issue an order
directing the public prosecutor to submit the record of the
preliminary investigation to the Branch COC for the latter to
attach the same to the record of the criminal case.
Where the accused is under preventive detention, his case
shall be raffled and its records transmitted to the judge to
whom the case was raffled within three days from the filing of
the complaint or information. The accused shall be arraigned
within ten days from the date of the raffle. The pre-trial of his
case shall be held within ten days after arraignment unless a
shorter period is provided for by law. 11
2. After the arraignment, the court shall forthwith set the pre-
trial conference within thirty days from the date of
arraignment, and issue an order: (a) requiring the private
offended party to appear thereat for purposes of plea-
bargaining except for violations of the Comprehensive
Dangerous Drugs Act of 2002, and for other matters
requiring his presence; 12 (b) referring the case to the
Branch COC, if warranted, for a preliminary conference to be
set at least three days prior to the pre-trial to mark the
documents or exhibits to be presented by the parties and
copies thereof to be attached to the records after comparison
and to consider other matters as may aid in its prompt
disposition; and (c) informing the parties that no evidence
shall be allowed to be presented and offered during the trial
other than those identified and marked during the pre-trial
except when allowed by the court for good cause shown. A
copy of the order is hereto attached as Annex "E". In
mediatable cases, the judge shall refer the parties and their
counsel to the PMC unit for purposes of mediation if
available.
3. During the preliminary conference, the Branch COC shall
assist the parties in reaching a settlement of the civil aspect
of the case, mark the documents to be presented as exhibits
and copies thereof attached to the records after comparison,
ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of
documents marked as exhibits and consider such other
matters as may aid in the prompt disposition of the case. The
proceedings during the preliminary conference shall be
recorded in the Minutes of Preliminary Conference to be
signed by both parties and counsel. (Please see Annex "B")
The Minutes of Preliminary Conference and the exhibits shall
be attached by the Branch COC to the case record before
the pre-trial.
4. Before the pre-trial conference the judge must study the
allegations of the information, the statements in the affidavits
of witnesses and other documentary evidence which form
part of the record of the preliminary investigation.
5. During the pre-trial, except for violations of the
Comprehensive Dangerous Drugs Act of 2002, the trial judge
shall consider plea-bargaining arrangements. 13 Where the
prosecution and the offended party agree to the plea offered
by the accused, the court shall:
a. Issue an order which contains the plea-bargaining arrived
at;
b. Proceed to receive evidence on the civil aspect of the
case; and
c. Render and promulgate judgment of conviction, including
the civil liability or damages duly established by the
evidence. 14
6. When plea bargaining fails, the Court shall:
a. Adopt the minutes of preliminary conference as part of the
pre-trial proceedings, confirm markings of exhibits or
substituted photocopies and admissions on the genuineness
and due execution of documents and list object and
testimonial evidence;
b. Scrutinize every allegation of the information and the
statements in the affidavits and other documents which form
part of the record of the preliminary investigation and other
documents identified and marked as exhibits in determining
further admissions of facts, documents and in particular as to
the following: 15
1. the identity of the accused;
2. court's territorial jurisdiction relative to the offense/s
charged;
3. qualification of expert witness/es;
4. amount of damages;
5. genuineness and due execution of documents;
6. the cause of death or injury, in proper cases;
7. adoption of any evidence presented during the preliminary
investigation;
8. disclosure of defenses of alibi, insanity, self-defense,
exercise of public authority and justifying or exempting
circumstances; and
9. such other matters that would limit the facts in issue.
c. Define factual and legal issues;
d. Ask parties to agree on the specific trial dates and adhere
to the flow chart determined by the court which shall contain
the time frames for the different stages of the proceeding up
to promulgation of decision and use the time frame for each
stage in setting the trial dates;
e. Require the parties to submit to the Branch COC the
names, addresses and contact numbers of witnesses that
need to be summoned by subpoena; 16 and
f. Consider modification of order of trial if the accused admits
the charge but interposes a lawful defense.
7. During the pre-trial, the judge shall be the one to ask
questions on issues raised therein and all questions must be
directed to him to avoid hostilities between parties.
8. All agreements or admissions made or entered during the
pre-trial conference shall be reduced in writing and signed by
the accused and counsel, otherwise, they cannot be used
against the accused. The agreements covering the matters
referred to in Section 1 of Rule 118 shall be approved by the
court. (Section 2, Rule 118)
9. All proceedings during the pre-trial shall be recorded, the
transcripts prepared and the minutes signed by the parties
and/or their counsels.
10. The trial judge shall issue a Pre-trial Order within ten (10)
days after the termination of the pre-trial setting forth the
actions taken during the pre-trial conference, the facts
stipulated, the admissions made, evidence marked, the
number of witnesses to be presented and the schedule of
trial. Said Order shall bind the parties, limit the trial to
matters not disposed of and control the course of the action
during the trial.
p. Motion for Postponement – Section 12 (f), Rule 15
of the Rules of Court; Sec. 3 and 4, Rule 30 of the
Rules of Court
Section 12. Prohibited motions. - The following motions shall
not be allowed:
(f) Motion for postponement intended for delay, except if it is
based on acts of God, force majeure or physical inability of
the witness to appear and testify. If the motion is granted
based on such exceptions, the moving party shall be warned
that the presentation of its evidence must still be terminated
on the dates previously agreed upon.
A motion for postponement, whether written or oral. shall. at
all times, be accompanied by the original official receipt from
the office of the clerk of court evidencing payment of the
postponement fee under Section 21 (b), Rule 14 L to be
submitted either at the time of the filing of said motion or not
later than the next hearing date. The clerk of court shall not
accept the motion unless accompanied by the original
receipt. (n)
[Section 3. Requisites of motion to postpone trial for absence
of evidence. - Deleted]
Section 3. Requisites of motion to postpone trial for illness of
party or counsel. - A motion to postpone a trial on the ground
of illness of a party or counsel may be granted if it appears
upon affidavit or sworn certification that the presence of such
party or counsel at the trial is indispensable and that the
character of his or her illness is such as to render his or
her non-attendance excusable. (4a)
Section 4. Hearing days and calendar call. - Trial shall be
held from Monday to Thursday, and courts shall call the
cases at exactly 8:30 a.m. and 2:00 p.m. pursuant to
Administrative Circular No. 3-99. Hearing on motions shall
be held on Fridays, pursuant to Section 8, Rule 15.
All courts shall ensure the posting of their court calendars
outside their courtrooms at least one (1) day before the
scheduled hearings, pursuant to OCA Circular No. 250-
2015. (n)
q. Motion for Intervention – Rule 19 of the Rules of
Court
RULE 19
INTERVENTION
Section 1. Who may intervene. - A person who has a legal
interest in the matter in litigation, or in the success of either
of the parties, or an interest against both, or is so situated as
to be adversely affected by a distribution or other disposition
of property in the custody of the court or of an officer thereof
may, with leave of court, be allowed to intervene in the
action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of
the rights of the original parties, and whether or not the
intervenors rights may be fully protected in a separate
proceeding. (1)
Section 2. Time to intervene. - The motion to intervene may
be filed at any time before rendition of judgment by the trial
court. A copy of the pleading-in-intervention shall be
attached to the motion and served on the original parties. (2)
Section 3. Pleadings-in-intervention. - The intervenor shall
file a complaint-in-intervention if he or she asserts a claim
against either or all of the original parties, or an answer-in-
intervention if he or she unites with the defending party in
resisting a claim against the latter. (3a)
Section 4. Answer to complaint-in-intervention. - The answer
to the complaint-in-intervention shall be filed within fifteen
(15) calendar days from notice of the order admitting the
same, unless a different period is fixed by the court. (4a)
r. Request for the Issuance of Subpoena – Rule
21 of the Rules of Court
RULE 21
SUBPOENA
Section 1. Subpoena and subpoena duces tecum. -
Subpoena is a process directed to a person requiring him or
her to attend and to testify at the hearing or the trial of an
action, or at any investigation conducted by competent
authority, or for the taking of his or her deposition. It may
also require him to bring with him or her any book s,
documents, or other things under his or her control, in which
case it is called a subpoena duces tecum. (1a)
Section 2. By whom issued. - The subpoena may be issued
by -
(a) [T]he court before whom the witness is required to attend;
(b) [T]he court of the place where the deposition is to be
taken;
(c) [T]he officer or body authorized by law to do so in
connection with investigations conducted by said officer or
body; or
(d) [A]ny Justice of the Supreme Court or the Court of
Appeals in any case or investigation pending within the
Philippines.
When application for a subpoena to a prisoner is made, the
judge or officer shall examine and study carefully such
application to determine whether the same is made for a
valid purpose.
No prisoner sentenced to death, reclusion perpetua or life
imprisonment and who is confined in any penal institution
shall be brought outside the penal institution for appearance
or attendance in any court unless authorized by the Supreme
Court. (2a)
Section 3. Form and contents. - A subpoena shall state the
name of the court and the title of the action or investigation,
shall be directed to the person whose attendance is required,
and in the case of a subpoena duces tecum, it shall also
contain a reasonable description of the book s, documents or
things demanded which must appear to the court prima
facie relevant. (3)
Section 4. Quashing a subpoena. - The court may quash a
subpoena duces tecum upon motion promptly made and, in
any event, at or before the time specified therein if it is
unreasonable and oppressive, or the relevancy of the book
s, documents or things does not appear, or if the person in
whose behalf the subpoena is issued fails to advance the
reasonable cost of the production thereof.
The court may quash a subpoena ad testificandum on the
ground that the witness is not bound thereby. In either case,
the subpoena may be quashed on the ground that the
witness fees and kilometrage allowed by these Rules were
not tendered when the subpoena was served. (4)
Section 5. Subpoena for depositions. - Proof of service of a
notice to take a deposition, as provided in [S]ections 15 and
25 of Rule 23, shall constitute sufficient authorization for the
issuance of subpoenas for the persons named in said notice
by the clerk of the court of the place in which the deposition
is to be taken. The clerk shall not, however, issue
a subpoena duces tecum to any such person without an
order of the court. (5)
Section 6. Service. - Service of a subpoena shall be made in
the same manner as personal or substituted service of
summons. The original shall be exhibited and a copy thereof
delivered to the person on whom it is served. The service
must be made so as to allow the witness a reasonable time
for preparation and travel to the place of attendance.
Costs for court attendance and the production of documents
and other materials subject of the subpoena shall be
tendered or charged accordingly. (6a)
Section 7. Personal appearance in court. - A person present
in court before a judicial officer may be required to testify as
if he or she were in attendance upon a subpoena issued by
such court or officer. (7a)
Section 8. Compelling attendance. - In case of failure of a
witness to attend, the court or judge issuing the subpoena,
upon proof of the service thereof and of the failure of the
witness, may issue a warrant to the sheriff of the province, or
his or her deputy, to arrest the witness and bring him or
her before the court or officer where his or her attendance is
required, and the cost of such warrant and seizure of such
witness shall be paid by the witness if the court issuing it
shall determine that his or her failure to answer the
subpoena was willful and without just excuse. (8a)
Section 9. Contempt. - Failure by any person without
adequate cause to obey a subpoena served upon him or
her shall be deemed a contempt of the court from which the
subpoena is issued. If the subpoena was not issued by a
court, the disobedience thereto shall be punished in
accordance with the applicable law or Rule. (9a)
Section 10. Exceptions. - The provisions of [S]ections 8 and
9 of this Rule shall not apply to a witness who resides more
than one hundred (100) kilometers from his or her residence
to the place where he or she is to testify by the ordinary
course of travel, or to a detention prisoner if no permission of
the court in which his or her case is pending was obtained.
(10a)
s. Formal Offer of Evidence – Sec. 34 and 35, Rule
132 of the Rules of Court
Section 34. Off er of evidence. – The court shall consider no
evidence which has not been formally offered. The purpose
for which the evidence is offered must be specified. (34)
Section 35. When to make off er. – All evidence must be
offered orally. The off er of the testimony of a witness in
evidence must be made at the time the witness is called to
testify. The off er of documentary and object evidence shall
be made after the presentation of a party’s testimonial
evidence. (35a)
t. Motion for Execution – Rule 39 of the Rules of
Court
RULE 39
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
Section 1. Execution upon judgments or final orders. - Execution shall
issue as a matter of right, on motion, upon a judgment or order that
disposes of the action or proceeding upon the expiration of the period
to appeal therefrom if no appeal has been duly perfected. (1a)
If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for in the court of origin, on motion
of the judgment obligee, submitting therewith certified true copies of
the judgment or judgments or final order or orders sought to be
enforced and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the
interest of justice so requires, direct the court of origin to issue the
writ of execution. (As amended by Cir. No. 24-94.)
Section 2. Discretionary execution.
(a) Execution of a judgment or final order pending appeal. - On
motion of the prevailing party with notice to the adverse party filed in
the trial court while it has jurisdiction over the case and is in
possession of either the original record or the record on appeal, as
the case may be, at the time of the filing of such motion, said court
may, in its discretion, order execution of a judgment or final order
even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution
pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be
stated in a special order after due hearing.
(b) Execution of several, separate or partial judgments. - A several,
separate or partial judgment may be executed under the same terms
and conditions as execution of a judgment or final order pending
appeal. (2a)
Section 3. Stay of discretionary execution. - Discretionary execution
issued under the preceding section may be stayed upon approval by
the proper court of a sufficient supersedeas bond filed by the party
against whom it is directed, conditioned upon the performance of the
judgment or order allowed to be executed in case it shall be finally
sustained in whole or in part. The bond thus given may be proceeded
against on motion with notice to the surety. (3a)
Section 4. Judgments not stayed by appeal. - Judgments in actions
for injunction, receivership, accounting and support, and such other
judgments as are now or may hereafter be declared to be
immediately executory, shall be enforceable after their rendition and
shall not be stayed by an appeal taken therefrom, unless otherwise
ordered by the trial court. On appeal therefrom, the appellate court in
its discretion may make an order suspending, modifying, restoring or
granting the injunction, receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or protection
of the rights of the adverse party. (4a)
Section 5. Effect of reversal of executed judgment. - Where the
executed judgment is reversed totally or partially, or annulled, on
appeal or otherwise, the trial court may, on motion, issue such orders
of restitution or reparation of damages as equity and justice may
warrant under the circumstances. (5a)
Section 6. Execution by motion or by independent action. - A final and
executory judgment or order may be executed on motion within five
(5) years from the date of its entry. After the lapse of such time, and
before it is barred by the statute of limitations, a judgment may be
enforced by action. The revived judgment may also be enforced by
motion within five (5) years from the date of its entry and thereafter by
action before it is barred by the statute of limitations. (6a)
Section 7. Execution in case of death of party. - In case of the death
of a party, execution may issue or be enforced in following manner:
(a) In case of the death of the judgment obligee, upon the application
of his executor or administrator, or successor in interest;
(b) In case of the death of the judgment obligor, against his executor
or administrator or successor in interest, if the judgment be for the
recovery of real or personal property, or the enforcement of a lien
thereon;
(c) In case of the death of the judgment obligor, after execution is
actually levied upon any of his property, the same may be sold for the
satisfaction of the judgment obligation, and the officer making the
sale shall account to the corresponding executor or administrator for
any surplus in his hands. (7a)
Section 8. Issuance, form and contents of a writ of execution. - The
writ of execution shall: (1) issue in the name of the Republic of the
Philippines from the court which granted the motion; (2) state the
name of the court, the case number and title, the dispositive part of
the subject judgment or order; and (3) require the sheriff or other
proper officer to whom it is directed to enforce the writ according to its
terms, in the manner hereinafter provided:
(a) If the execution be against the property of the judgment obligor, to
satisfy the judgment, with interest, out of the real or personal property
of such judgment obligor;
(b) If it be against real or personal property in the hands of personal
representatives, heirs, devisees, legatees, tenants, or trustees of the
judgment obligor, to satisfy the judgment, with interest, out of such
property;
(c) If it be for the sale of real or personal property, to sell such
property, describing it, and apply the proceeds in conformity with the
judgment, the material parts of which shall be recited in the writ of
execution;
(d) If it be for the delivery of the possession of real or personal
property, to deliver the possession of the same, describing it, to the
party entitled thereto, and to satisfy any costs, damages, rents, or
profits covered by the judgment out of the personal property of the
person against whom it was rendered, and if sufficient personal
property cannot be found, then out of the real property; and
(e) In all cases, the writ of execution shall specifically state the
amount of the interest, costs, damages, rents, or profits due as of the
date of the issuance of the writ, aside from the principal obligation
under the judgment. For this purpose, the motion for execution shall
specify the amounts of the foregoing reliefs sought by the movant.
(8a)
Section 9. Execution of judgments for money, how enforced. -
(a) Immediate payment on demand. - The officer shall enforce an
execution of a judgment for money by demanding from the judgment
obligor the immediate payment of the full amount stated in the writ of
execution and all lawful fees. The judgment obligor shall pay in cash,
certified bank check payable to the judgment obligee, or any other
form of payment acceptable to the latter, the amount of the judgment
debt under proper receipt directly to the judgment obligee or his
authorized representative if present at the time of payment. The
lawful fees shall be handed under proper receipt to the executing
sheriff who shall turn over the said amount within the same day to the
clerk of court of the court that issued the writ.
If the judgment obligee or his authorized representative is not present
to receive payment, the judgment obligor shall deliver the aforesaid
payment to the executing sheriff. The latter shall turn over all the
amounts coming into his possession within the same day to the clerk
of court of the court that issued the writ, or if the same is not
practicable, deposit said amounts to a fiduciary account in the
nearest government depository bank of the Regional Trial Court of
the locality.
The clerk of said court shall thereafter arrange for the remittance of
the deposit to the account of the court that issued the writ whose
clerk of court shall then deliver said payment to the judgment obligee
in satisfaction of the judgment. The excess, if any, shall be delivered
to the judgment obligor while the lawful fees shall be retained by the
clerk of court for disposition as provided by law. In no case shall the
executing sheriff demand that any payment by check be made
payable to him.
(b) Satisfaction by levy. - If the judgment obligor cannot pay all or part
of the obligation in cash, certified bank check or other mode of
payment acceptable to the judgment obligee, the officer shall levy
upon the properties of the judgment obligor of every kind and nature
whatsoever which may be disposed of for value and not otherwise
exempt from execution giving the latter the option to immediately
choose which property or part thereof may be levied upon, sufficient
to satisfy the judgment. If the judgment obligor does not exercise the
option, the officer shall first levy on the personal properties, if any,
and then on the real properties if the personal properties are
insufficient to answer for the judgment.
The sheriff shall sell only a sufficient portion of the personal or real
property of the judgment obligor which has been levied upon.
When there is more property of the judgment obligor than is sufficient
to satisfy the judgment and lawful fees, he must sell only so much of
the personal or real property as is sufficient to satisfy the judgment
and lawful fees.
Real property, stock s, shares, debts, credits, and other personal
property, or any interest in either real or personal property, may be
levied upon in like manner and with like effect as under a writ of
attachment.
(c) Garnishment of debts and credits. - The officer may levy on debts
due the judgment obligor and other credits, including bank deposits,
financial interests, royalties, commissions and other personal
property not capable of manual delivery in the possession or control
of third parties. Levy shall be made by serving notice upon the person
owing such debts or having in his possession or control such credits
to which the judgment obligor is entitled. The garnishment shall cover
only such amount as will satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the court within five (5)
days from service of the notice of garnishment stating whether or not
the judgment obligor has sufficient funds or credits to satisfy the
amount of the judgment. If not, the report shall state how much funds
or credits the garnishee holds for the judgment obligor. The garnished
amount in cash, or certified bank check issued in the name of the
judgment obligee, shall be delivered directly to the judgment obligee
within ten (10) working days from service of notice on said garnishee
requiring such delivery, except the lawful fees which shall be paid
directly to the court.
In the event there are two or more garnishees holding deposits or
credits sufficient to satisfy the judgment, the judgment obligor, if
available, shall have the right to indicate the garnishee or garnishees
who shall be required to deliver the amount due; otherwise, the
choice shall be made by the judgment obligee.
The executing sheriff shall observe the same procedure under
paragraph (a) with respect to delivery of payment to the judgment
obligee. (8a, 15a)
Section 10. Execution of judgments for specific act. - (a) Conveyance,
delivery of deeds, or other specific acts; vesting title. - If a judgment
directs a party to execute a conveyance of land or personal property,
or to deliver deeds or other documents, or to perform any other
specific act in connection therewith, and the party fails to comply
within the time specified, the court may direct the act to be done at
the cost of the disobedient party by some other person appointed by
the court and the act when so done shall have like effect as if done by
the party. If real or personal property is situated within the Philippines,
the court in lieu of directing a conveyance thereof may by an order
divest the title of any party and vest it in others, which shall have the
force and effect of a conveyance executed in due form of law. (10a)
(e) Household furniture and utensils necessary for housekeeping, and
used for that purpose by the judgment obligor and his family, such as
the judgment obligor may select, of a value not exceeding one
hundred thousand pesos;
(f) Provisions for individual or family use sufficient for four months;
(g) The professional libraries and equipment of judges, lawyers,
physicians, pharmacists, dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not exceeding three hundred
thousand pesos in value;
(h) One fishing boat and accessories not exceeding the total value of
one hundred thousand pesos owned by a fisherman and by the lawful
use of which he earns his livelihood;

(b) Sale of real or personal property. - If the judgment be for the sale (i) So much of the salaries, wages, or earnings of the judgment
of real or personal property, to sell such property, describing it, and obligor for his personal services within the four months preceding the
apply the proceeds in conformity with the judgment. (8[c]a) levy as are necessary for the support of his family;

(c) Delivery or restitution of real property. - The officer shall demand (g) Lettered gravestones;
of the person against whom the judgment for the delivery or
restitution of real property is rendered and all persons claiming rights
under him to peaceably vacate the property within three (3) working (k) Monies, benefits, privileges, or annuities accruing or in any
days, and restore possession thereof to the judgment obligee; manner growing out of any life insurance;
otherwise, the officer shall oust all such persons therefrom with the
assistance, if necessary, of appropriate peace officers, and
employing such means as may be reasonably necessary to retake (l) The right to receive legal support, or money or property obtained
possession, and place the judgment obligee in possession of such as such support, or any pension or gratuity from the Government;
property. Any costs, damages, rents or profits awarded by the
judgment shall be satisfied in the same manner as a judgment for
(m) Properties specially exempted by law.
money. (13a)

But no article or species of property mentioned in this section shall be

(d) Removal of improvements on property subject of execution. -
exempt from execution issued upon a judgment recovered for its
When the property subject of the execution contains improvements
price or upon a judgment of foreclosure of a mortgage thereon. (12a)
constructed or planted by the judgment obligor or his agent, the
officer shall not destroy, demolish or remove said improvements
except upon special order of the court, issued upon motion of the Section 14. Return of writ of execution. - The writ of execution shall
judgment obligee after due hearing and after the former has failed to be returnable to the court issuing it immediately after the judgment
remove the same within a reasonable time fixed by the court. (14a) has been satisfied in part or in full. If the judgment cannot be satisfied
in full within thirty (30) days after his receipt of the writ, the officer
shall report to the court and state the reason therefor. Such writ shall
(e) Delivery of personal property. - In judgments for the delivery of
continue in effect during the period within which the judgment may be
personal property, the officer shall take possession of the same and
enforced by motion. The officer shall make a report to the court every
forthwith deliver it to the party entitled thereto and satisfy any
thirty (30) days on the proceedings taken thereon until the judgment
judgment for money as therein provided. (8a)
is satisfied in full, or its effectivity expires. The returns or periodic
reports shall set forth the whole of the proceedings taken, and shall
Section 11. Execution of special judgments. - When a judgment be filed with the court and copies thereof promptly furnished the
requires the performance of any act other than those mentioned in parties. (11 a)
the two preceding sections, a certified copy of the judgment shall be
attached to the writ of execution and shall be served by the officer
Section 15. Notice of sale of property on execution. - Before the sale
upon the party against whom the same is rendered, or upon any
of property on execution, notice thereof must be given as follows:
other person required thereby, or by law, to obey the same, and such
party or person may be punished for contempt if he disobeys such
judgment. (9a) (a) In case of perishable property, by posting written notice of the
time and place of the sale in three (3) public places, preferably in
conspicuous areas of the municipal or city hall, post office and public
Section 12. Effect of levy on execution as to third persons. - The levy
mark et in the municipality or city where the sale is to take place, for
on execution shall create a lien in favor of the judgment obligee over
such time as may be reasonable, considering the character and
the right, title and interest of the judgment obligor in such property at
condition of the property;
the time of the levy, subject to liens and encumbrances then existing.
(16a)
(b) In case of other personal property, by posting a similar notice in
the three (3) public places above-mentioned for not less than five (5)
Section 13. Property exempt from execution. - Except as otherwise
days;
expressly provided by law, the following property, and no other, shall
be exempt from execution:
(c) In case of real property, by posting for twenty (20) days in the
three (3) public places abovementioned a similar notice particularly
(a) The judgment obligors family home as provided by law, or the
describing the property and stating where the property is to be sold,
homestead in which he resides, and land necessarily used in
and if the assessed value of the property exceeds fifty thousand
connection therewith;
(P50,000.00) pesos, by publishing a copy of the notice once a week
for two (2) consecutive week s in one newspaper selected by raffle,
(b) Ordinary tools and implements personally used by him in his whether in English, Filipino, or any major regional language
trade, employment, or livelihood; published, edited and circulated or, in the absence thereof, having
general circulation in the province or city;

(c) Three horses, or three cows, or three carabaos, or other beasts of

burden, such as the judgment obligor may select necessarily used by
him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary personal use,
excluding jewelry;
(d) In all cases, written notice of the sale shall be given to the
judgment obligor, at least three (3) days before the sale, except as
provided in paragraph (a) hereof where notice shall be given at any
time before the sale, in the same manner as personal service of
pleadings and other papers as provided by section 6 of Rule 13.
The notice shall specify the place, date and exact time of the sale the amount of such loss, with costs, and may punish him for contempt
which should not be earlier than nine 0clock in the morning and not if he disobeys the order. The amount of such payment shall be for the
later than two 0clock in the afternoon. The place of the sale may be benefit of the person entitled to the proceeds of the execution, unless
agreed upon by the parties. In the absence of such agreement, the the execution has been fully satisfied, in which event such proceeds
sale of real property or personal property not capable of manual shall be for the benefit of the judgment obligor. The officer may
delivery shall be held in the office of the clerk of court of the Regional thereafter reject any subsequent bid of such purchaser who refuses
Trial Court or the Municipal Trial Court which issued the writ or which to pay. (22a)
was designated by the appellate court. In the case of personal
property capable of manual delivery, the sale shall be held in the
Section 21. Judgment obligee as purchaser. - When the purchaser is
place where the property is located. (18a)
the judgment obligee, and no third party claim has been filed, he
need not pay the amount of the bid if it does not exceed the amount
Section 16. Proceedings where property claimed by third person. - If of his judgment. If it does, he shall pay only the excess. (23a)
the property levied on is claimed by any person other than the
judgment obligor or his agent, and such person makes an affidavit of
Section 22. Adjournment of sale. - By written consent of the judgment
his title thereto or right to the possession thereof, stating the grounds
obligor and obligee, or their duly authorized representatives, the
of such right or title, and serves the same upon the officer making the
officer may adjourn the sale to any date and time agreed upon by
levy and a copy thereof upon the judgment obligee, the officer shall
them. Without such agreement, he may adjourn the sale from day to
not be bound to keep the property, unless such judgment obligee, on
day if it becomes necessary to do so for lack of time to complete the
demand of the officer, files a bond approved by the court to indemnify
sale on the day fixed in the notice or the day to which it was
the third-party claimant in a sum not less than the value of the
adjourned. (24a)
property levied on. In case of disagreement as to such value, the
same shall be determined by the court issuing the writ of execution.
No claim for damages for the taking or keeping of the property may Section 23. Conveyance to purchaser of personal property capable of
be enforced against the bond unless the action therefor is filed within manual delivery. - When the purchaser of any personal property,
one hundred twenty (120) days from the date of the filing of the bond. capable of manual delivery, pays the purchase price, the officer
making the sale must deliver the property to the purchaser and, if
desired, execute and deliver to him a certificate of sale. The sale
The officer shall not be liable for damages for the taking or keeping of
conveys to the purchaser all the rights which the judgment obligor
the property, to any third party claimant if such bond is filed. Nothing
had in such property as of the date of the levy on execution or
herein contained shall prevent such claimant or any third person from
preliminary attachment. (25a)
vindicating his claim to the property in a separate action, or prevent
the judgment obligee from claiming damages in the same or a
separate action against a third-party claimant who filed a frivolous or Section 24. Conveyance to purchaser of personal property not
plainly spurious claim. capable of manual delivery. - When the purchaser of any personal
property, not capable of manual delivery, pays the purchase price,
the officer making the sale must execute and deliver to the purchaser
When the writ of execution is issued in favor of the Republic of the
a certificate of sale. Such certificate conveys to the purchaser all the
Philippines, or any officer duly representing it, the filing of such bond
rights which the judgment obligor had in such property as of the date
shall not be required, and in case the sheriff or levying officer is sued
of the levy on execution or preliminary attachment. (26a)
for damages as a result of the levy, he shall be represented by the
Solicitor General and if held liable therefor, the actual damages
adjudged by the court shall be paid by the National Treasurer out of Section 25. Conveyance of real property; certificate thereof given to
such funds as may be appropriated for the purpose. (17a) purchaser and filed with registry of deeds. - Upon a sale of real
property, the officer must give to the purchaser a certificate of sale
containing:
Section 17. Penalty for selling without notice, or removing or defacing
notice. - An officer selling without the notice prescribed by section 15
of this Rule shall be liable to pay punitive damages in the amount of (a) A particular description of the real property sold;
five thousand (P5,000.00) pesos to any person injured thereby, in
addition to his actual damages, both to be recovered by motion in the
same action; and a person willfully removing or defacing the notice (b) The price paid for each distinct lot or parcel;
posted, if done before the sale, or before the satisfaction of the
judgment if it be satisfied before the sale, shall be liable to pay five
thousand (P5,000.00) pesos to any person injured by reason thereof, (c) The whole price paid by him;
in addition to his actual damages, to be recovered by motion in the
same action. (19a)
(d) A statement that the right of redemption expires one (1) year from
the date of the registration of the certificate of sale.
Section 18. No sale if judgment and costs paid. - At any time before
the sale of property on execution, the judgment obligor may prevent
Such certificate must be registered in the registry of deeds of the
the sale by paying the amount required by the execution and the
place where the property is situated. (27a)
costs that have been incurred therein. (20a)

Section 26. Certificate of sale where property claimed by third person.

Section 19. How property sold on execution; who may direct manner
- When a property sold by virtue of a writ of execution has been
and order of sale. - All sales of property under execution must be
claimed by a third person, the certificate of sale to be issued by the
made at public auction, to the highest bidder, to start at the exact time
sheriff pursuant to sections 23, 24 and 25 of this Rule shall make
fixed in the notice. After sufficient property has been sold to satisfy
express mention of the existence of such third-party claim. (28a)
the execution, no more shall be sold and any excess property or
proceeds of the sale shall be promptly delivered to the judgment
obligor or his authorized representative, unless otherwise directed by Section 27. Who may redeem real property so sold. - Real property
the judgment or order of the court. When the sale is of real property, sold as provided in the last preceding section, or any part thereof sold
consisting of several known lots, they must be sold separately; or, separately, may be redeemed in the manner hereinafter provided, by
when a portion of such real property is claimed by a third person, he the following persons:
may require it to be sold separately. When the sale is of personal
property capable of manual delivery, it must be sold within view of
those attending the same and in such parcels as are likely to bring (a) The judgment obligor, or his successor in interest in the whole or
the highest price. The judgment obligor, if present at the sale, may any part of the property;
direct the order in which property, real or personal, shall be sold,
when such property consists of several known lots or parcels which
can be sold to advantage separately. Neither the officer conducting (b) A creditor having a lien by virtue of an attachment, judgment or
the execution sale, nor his deputies, can become a purchaser, nor be mortgage on the property sold, or on some part thereof, subsequent
interested directly or indirectly in any purchase at such sale. (21a) to the lien under which the property was sold. Such redeeming
creditor is termed a redemptioner. (29a)

Section 20. Refusal of purchaser to pay. - If a purchaser refuses to

pay the amount bid by him for property struck off to him at a sale Section 28. Time and manner of, and amounts payable on,
under execution, the officer may again sell the property to the highest successive redemptions; notice to be given and filed. - The judgment
bidder and shall not be responsible for any loss occasioned thereby; obligor, or redemptioner, may redeem the property from the
but the court may order the refusing purchaser to pay into the court purchaser, at any time within one (1) year from the date of the
registration of the certificate of sale, by paying the purchaser the
amount of his purchase, with one per centum per month interest
thereon in addition, up to the time of redemption, together with the
amount of any assessments or taxes which the purchaser may have
paid thereon after purchase, and interest on such last named amount
at the same rate; and if the purchaser be also a creditor having a
prior lien to that of the redemptioner, other than the judgment under
which such purchase was made, the amount of such other lien, with
interest.
Property so redeemed may again be redeemed within sixty (60) days
after the last redemption upon payment of the sum paid on the last
redemption, with two per centum thereon in addition, and the amount
of any assessments or taxes which the last redemptioner may have
paid thereon after redemption by him, with interest on such last-
named amount, and in addition, the amount of any liens held by said
last redemptioner prior to his own, with interest. The property may be
again, and as often as a redemptioner is so disposed, redeemed from
any previous redemptioner within sixty (60) days after the last
redemption, on paying the sum paid on the last previous redemption,
with two per centum thereon in addition, and the amounts of any
assessments or taxes which the last previous redemptioner paid after
the redemption thereon, with interest thereon, and the amount of any
liens held by the last redemptioner prior to his own, with interest.
Written notice of any redemption must be given to the officer who
made the sale and a duplicate filed with the registry of deeds of the
place, and if any assessments or taxes are paid by the redemptioner
or if he has or acquires any lien other than that upon which the
redemption was made, notice thereof must in like manner be given to
the officer and filed with the registry of deeds; if such notice be not
filed, the property may be redeemed without paying such
assessments, taxes, or liens. (30a)
Section 29. Effect of redemption by judgment obligor, and a certificate
to be delivered and recorded thereupon; to whom payments on
redemption made. - If the judgment obligor redeems, he must make
the same payments as are required to effect a redemption by a
redemptioner, whereupon, no further redemption shall be allowed and
he is restored to his estate. The person to whom the redemption
payment is made must execute and deliver to him a certificate of
redemption acknowledged before a notary public or other officer
authorized to take acknowledgments of conveyances of real property.
Such certificate must be filed and recorded in the registry of deeds of
the place in which the property is situated, and the registrar of deeds
must note the record thereof on the margin of the record of the
certificate of sale. The payments mentioned in this and the last
preceding sections may be made to the purchaser or redemptioner,
or for him to the officer who made the sale. (31a)
Section 30. Proof required of redemptioner. - A redemptioner must
produce to the officer, or person from whom he seek s to redeem,
and serve with his notice to the officer a copy of the judgment or final
order under which he claims the right to redeem, certified by the clerk
of the court wherein the judgment or final order is entered; or, if he
redeems upon a mortgage or other lien, a memorandum of the record
thereof, certified by the registrar of deeds; or an original or certified
copy of any assignment necessary to establish his claim; and an
affidavit executed by him or his agent, showing the amount then
actually due on the lien. (32a)
Section 31. Manner of using premises pending redemption; waste
restrained. - Until the expiration of the time allowed for redemption,
the court may, as in other proper cases, restrain the commission of
waste on the property by injunction, on the application of the
purchaser or the judgment obligee, with or without notice; but it is not
waste for a person in possession of the property at the time of the
sale, or entitled to possession afterwards, during the period allowed
for redemption, to continue to use it in the same manner in which it
was previously used; or to use it in the ordinary course of husbandry;
or to make the necessary repairs to buildings thereon while he
occupies the property. (33a)
Section 32. Rents, earnings and income of property pending
redemption. - The purchaser or a redemptioner shall not be entitled to
receive the rents, earnings and income of the property sold on
execution, or the value of the use and occupation thereof when such
property is in the possession of a tenant. All rents, earnings and
income derived from the property pending redemption shall belong to
the judgment obligor until the expiration of his period of redemption.
(34a)
Section 33. Deed and possession to be given at expiration of
redemption period; by whom executed or given. - If no redemption be
made within one (1) year from the date of the registration of the
certificate of sale, the purchaser is entitled to a conveyance and
possession of the property; or, if so redeemed whenever sixty (60)
days have elapsed and no other redemption has been made, and
notice thereof given, and the time for redemption has expired, the last
redemptioner is entitled to the conveyance and possession; but in all
cases the judgment obligor shall have the entire period of one (1)
year from the date of the registration of the sale to redeem the
property. The deed shall be executed by the officer making the sale
or by his successor in office, and in the latter case shall have the
same validity as though the officer making the sale had continued in
office and executed it.
Upon the expiration of the right of redemption, the purchaser or
redemptioner shall be substituted to and acquire all the rights, title,
interest and claim of the judgment obligor to the property as of the
time of the levy. The possession of the property shall be given to the
purchaser or last redemptioner by the same officer unless a third
party is actually holding the property adversely to the judgment
obligor. (35a)
Section 34. Recovery of price if sale not effective; revival of judgment.
- If the purchaser of real property sold on execution, or his successor
in interest, fails to recover the possession thereof, or is evicted
therefrom, in consequence of irregularities in the proceedings
concerning the sale, or because the judgment has been reversed or
set aside, or because the property sold was exempt from execution,
or because a third person has vindicated his claim to the property, he
may on motion in the same action or in a separate action recover
from the judgment obligee the price paid, with interest, or so much
thereof as has not been delivered to the judgment obligor; or he may,
on motion, have the original judgment revived in his name for the
whole price with interest, or so much thereof as has been delivered to
the judgment obligor. The judgment so revived shall have the same
force and effect as an original judgment would have as of the date of
the revival and no more. (36a)
Section 35. Right to contribution or reimbursement. - When property
liable to an execution against several persons is sold thereon, and
more than a due proportion of the judgment is satisfied out of the
proceeds of the sale of the property of one of them, or one of them
pays, without a sale, more than his proportion, he may compel a
contribution from the others; and when a judgment is upon an
obligation of one of them, as security for another, and the surety pays
the amount, or any part thereof, either by sale of his property or
before sale, he may compel repayment from the principal. (37a)
Section 36. Examination of judgment obligor when judgment
unsatisfied. - When the return of a writ of execution issued against
property of a judgment obligor, or anyone of several obligors in the
same judgment, shows that the judgment remains unsatisfied, in
whole or in part, the judgment obligee, at any time after such return is
made, shall be entitled to an order from the court which rendered the
said judgment, requiring such judgment obligor to appear and be
examined concerning his property and income before such court or
before a commissioner appointed by it, at a specified time and place;
and proceedings may thereupon be had for the application of the
property and income of the judgment obligor towards the satisfaction
of the judgment. But no judgment obligor shall be so required to
appear before a court or commissioner outside the province or city in
which such obligor resides or is found. (38a)
Section 37. Examination of obligor of judgment obligor. - When the
return of a writ of execution against the property of a judgment obligor
shows that the judgment remains unsatisfied, in whole or in part, and
upon proof to the satisfaction of the court which issued the writ, that a
person, corporation, or other juridical entity has property of such
judgment obligor or is indebted to him, the court may, by an order,
require such person, corporation, or other juridical entity, or any
officer or member thereof, to appear before the court or a
commissioner appointed by it, at a time and place within the province
or city where such debtor resides or is found, and be examined
concerning the same. The service of the order shall bind all credits
due the judgment obligor and all money and property of the judgment
obligor in the possession or in the control of such person, corporation,
or juridical entity from the time of service; and the court may also
require notice of such proceedings to be given to any party to the
action in such manner as it may deem proper. (39a)
Section 38. Enforcement of attendance and conduct of examination. -
A party or other person may be compelled, by an order or subpoena,
to attend before the court or commissioner to testify as provided in
the two preceding sections, and upon failure to obey such order or
subpoena or to be sworn, or to answer as a witness or to subscribe
his deposition, may be punished for contempt as in other cases.
Examinations shall not be unduly prolonged, but the proceedings may
be adjourned from time to time, until they are completed. If the
examination is before a commissioner, he must take it in writing and
certify it to the court. All examinations and answers before a court or
commissioner must be under oath, and when a corporation or other
juridical entity answers, it must be on the oath of an authorized officer
or agent thereof. (40a)
Section 39. Obligor may pay execution against obligee. - After a writ
of execution against property has been issued, a person indebted to
the judgment obligor may pay to the sheriff holding the writ of
execution the amount of his debt or so much thereof as may be
necessary to satisfy the judgment, in the manner prescribed in
section 9 of this Rule, and the sheriff s receipt shall be a sufficient
discharge for the amount so paid or directed to be credited by the
judgment obligee on the execution. (41a)
Section 40. Order for application of property and income to
satisfaction of judgment. - The court may order any property of the
judgment obligor, or money due him, not exempt from execution, in
the hands of either himself or another person, or of a corporation or
other juridical entity, to be applied to the satisfaction of the judgment,
subject to any prior rights over such property.
If, upon investigation of his current income and expenses, it appears
that the earnings of the judgment obligor for his personal services are
more than necessary for the support of his family, the court may order
that he pay the judgment in fixed monthly installments, and upon his
failure to pay any such installment when due without good excuse,
may punish him for indirect contempt. (42a)
Section 41. Appointment of receiver. - The court may appoint a
receiver of the property of the judgment obligor; and it may also forbid
a transfer or other disposition of, or any interference with, the
property of the judgment obligor not exempt from execution. (43a)
Section 42. Sale of ascertainable interest of judgment obligor in real
estate. - If it appears that the judgment obligor has an interest in real
estate in the place in which proceedings are had, as mortgagor or
mortgagee or otherwise, and his interest therein can be ascertained
without controversy, the receiver may be ordered to sell and convey
such real estate or the interest of the obligor therein; and such sale
shall be conducted in all respects in the same manner as is provided
for the sale of real estate upon execution, and the proceedings
thereon shall be approved by the court before the execution of the
deed. (44a)
Section 43. Proceedings when indebtedness denied or another
person claims the property. - If it appears that a person or
corporation, alleged to have property of the judgment obligor or to be
indebted to him, claims an interest in the property adverse to him or
denies the debt, the court may authorize, by an order made to that
effect, the judgment obligee to institute an action against such person
or corporation for the recovery of such interest or debt, forbid a
transfer or other disposition of such interest or debt within one
hundred twenty (120) days from notice of the order, and may punish
disobedience of such order as for contempt. Such order may be
modified or vacated at any time by the court which issued it, or by the
court in which the action is brought, upon such terms as may be just.
(45a)
Section 44. Entry of satisfaction of judgment by clerk of court. -
Satisfaction of a judgment shall be entered by the clerk of court in
the court dock et, and in the execution book, upon the return of a writ
of execution showing the full satisfaction of the judgment, or upon the
filing of an admission to the satisfaction of the judgment executed and
acknowledged in the same manner as a conveyance of real property
by the judgment obligee or by his counsel unless a revocation of his
authority is filed, or upon the endorsement of such admission by the
judgment obligee or his counsel on the face of the record of the
judgment. (46a)
Section 45. Entry of satisfaction with or without admission. -
Whenever a judgment is satisfied in fact, or otherwise than upon an
execution, on demand of the judgment obligor, the judgment obligee
or his counsel must execute and acknowledge, or indorse, an
admission of the satisfaction as provided in the last preceding
section, and after notice and upon motion the court may order either
the judgment obligee or his counsel to do so, or may order the entry
of satisfaction to be made without such admission. (47a)
Section 46. When principal bound by judgment against surety. -
When a judgment is rendered against a party who stands as surety
for another, the latter is also bound from the time that he has notice of
the action or proceeding, and an opportunity at the suretys request to
join in the defense. (48a)
Section 47. Effect of judgments or final orders. - The effect of a
judgment or final order rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final order, may be as
follows:
(a) In case of a judgment or final order against a specific thing, or in
respect to the probate of a will, or the administration of the estate of a
deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to
another, the judgment or final order is conclusive upon the title to the
thing, the will or administration, or the condition, status or relationship
of the person; however, the probate of a will or granting of letters of
administration shall only be prima facie evidence of the death of the
testator or intestate;
(b) In other cases, the judgment or final order is, with respect to the
matter directly adjudged or as to any other matter that could have
been raised in relation thereto, conclusive between the parties and
their successors in interest by title subsequent to the commencement
of the action or special proceeding, litigating for the same thing and
under the same title and in the same capacity; and
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been adjudged in
a former judgment or final order which appears upon its face to have
been so adjudged, or which was actually and necessarily included
therein or necessary thereto. (49a)
Section 48. Effect of foreign judgments or final orders. - The effect of
a judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing, the
judgment or final order is conclusive upon the title to the thing; and
(b) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as between
the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. (50a)
u. Notice of Lis Pendens – Sec. 19, Rule 13 of the
Rules of Court; Sec. 76 of Presidential Decree No.
1529
Section 19. Notice of lis pendens. - In an action affecting the
title or the right of possession of real property, the plaintiff
and the defendant, when affirmative relief is claimed in his or
her answer, may record in the office of the registry of deeds
of the province in which the property is situated a notice of
the pendency of the action. Said notice shall contain the
names of the parties and the object of the action or defense,
and a description of the property in that province affected
thereby. Only from the time of filing such notice for record
shall a purchaser, or encumbrancer of the property affected
thereby, be deemed to have constructive notice of the
pendency of the action, and only of its pendency against the
parties designated by their real names.
The notice of lis pendens hereinabove mentioned may be
cancelled only upon order of the court, after proper showing
that the notice is for the purpose of molesting the adverse
party, or that it is not necessary to protect the rights of the
party who caused it to be recorded. (14a)
Section 76. Notice of lis pendens. No action to recover
possession of real estate, or to quiet title thereto, or to
remove clouds upon the title thereof, or for partition, or other
proceedings of any kind in court directly affecting the title to
land or the use or occupation thereof or the buildings
thereon, and no judgment, and no proceeding to vacate or
reverse any judgment, shall have any effect upon registered
land as against persons other than the parties thereto,
unless a memorandum or notice stating the institution of
such action or proceeding and the court wherein the same is
pending, as well as the date of the institution thereof,
together with a reference to the number of the certificate of
title, and an adequate description of the land affected and
the registered owner thereof, shall have been filed and
registered.
v. Third Party Claim – Sec. 16, Rule 39 of the Rules
of Court
w. Motion for Reconsideration – Rule 37 of the Rules
of Court
x. Notice of Appeal – Rules 40 and 41 of the Rules
of Court
RULE 40
APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS
Section 1. Where to appeal. - An appeal from a judgment or
final order of a Municipal Trial Court may be taken to the
Regional Trial Court exercising jurisdiction over the area to
which the former pertains. The title of the case shall remain
as it was in the court of origin, but the party appealing the
case shall be further referred to as the appellant and the
adverse party as the appellee. (n)
Section 2. When to appeal. - An appeal may be taken within
fifteen (15) days after notice to the appellant of the judgment
or final order appealed from. Where a record on appeal is
required, the appellant shall file a notice of appeal and a
record on appeal within thirty (30) days after notice of the
judgment or final order.
The period of appeal shall be interrupted by a timely motion
for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be
allowed. (n)
Section 3. How to appeal. - The appeal is taken by filing a
notice of appeal with the court that rendered the judgment or
final order appealed from. The notice of appeal shall indicate
the parties to the appeal, the judgment or final order or part
thereof appealed from, and state the material dates showing
the timeliness of the appeal.
A record on appeal shall be required only in special
proceedings and in other cases of multiple or separate
appeals.
The form and contents of the record on appeal shall be as
provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal
where required, shall be served on the adverse party. (n)
Section 4. Perfection of appeal; effect thereof - The
perfection of the appeal and the effect thereof shall be
governed by the provisions of section 9, Rule 41. (n)
Section 5. Appellate court docket and other lawful fees. -
Within the period for taking an appeal, the appellant shall
pay to the clerk of the court which rendered the judgment or
final order appealed from the full amount of the appellate
court dock et and other lawful fees. Proof of payment thereof
shall be transmitted to the appellate court together with the
original record or the record on appeal, as the case may be.
(n)
Section 6. Duty of the clerk of court. - Within fifteen (15) days
from the perfection of the appeal, the clerk of court or the
branch clerk of court of the lower court shall transmit the
original record or the record on appeal, together with the
transcripts and exhibits, which he shall certify as complete,
to the proper Regional Trial Court. A copy of his letter of
transmittal of the records to the appellate court shall be
furnished the parties. (n)
Section 7. Procedure in the Regional Trial Court.
(a) Upon receipt of the complete record or the record on
appeal, the clerk of court of the Regional Trial Court shall
notify the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be the
duty of the appellant to submit a memorandum which shall
briefly discuss the errors imputed to the lower court, a copy
of which shall be furnished by him to the adverse party.
Within fifteen (15) days from receipt of the appellants
memorandum, the appellee may file his memorandum.
Failure of the appellant to file a memorandum shall be a
ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of the appellee or the
expiration of the period to do so, the case shall be
considered submitted for decision. The Regional Trial Court
shall decide the case on the basis of the entire record of the
proceedings had in the court of origin and such memoranda
as are filed. (n)
Section 8. Appeal from orders dismissing case without trial;
lack of jurisdiction. - If an appeal is taken from an order of
the lower court dismissing the case without a trial on the
merits, the Regional Trial Court may affirm or reverse it, as
the case may be. In case of affirmance and the ground of
dismissal is lack of jurisdiction over the subject matter, the
Regional Trial Court, if it has jurisdiction thereover, shall try
the case on the merits as if the case was originally filed with
it. In case of reversal, the case shall be remanded for further
proceedings.
If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court
on appeal shall not dismiss the case if it has original
jurisdiction thereof, but shall decide the case in accordance
with the preceding section, without prejudice to the
admission of amended pleadings and additional evidence in
the interest of justice. (n)
Section 9. Applicability of Rule 41. - The other provisions of
Rule 41 shall apply to appeals provided for herein insofar as
they are not inconsistent with or may serve to supplement
the provisions of this Rule. (n)
RULE 41
APPEAL FROM THE REGIONAL TRIAL COURTS
Section 1. Subject of appeal. - An appeal may be taken from
a judgment or final order that completely disposes of the
case, or of a particular matter therein when declared by
these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a petition for relief or any similar motion
seeking relief from judgement; (b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of fraud,
mistake or duress, or any other ground vitiating consent;
(e) An order of execution;
(f) A judgment or final order for or against one or more of
several parties or in separate claims, counterclaims, cross-
claims and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom; and
(g) An order dismissing an action without prejudice.
In any of the foregoing circumstances, the aggrieved party
may file an appropriate special civil action as provided in
Rule 65. (As amended by A.M No. 07-7-12-SC,
December 1, 2007.)
Section 2. Modes of appeal.
(a) Ordinary appeal. - The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of
its original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment or final
order appealed from and serving a copy thereof upon the
adverse party. No record on appeal shall be required except
in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In
such cases, the record on appeal shall be filed and served in
like manner.
(b) Petition for review. - The appeal to the Court of Appeals
in cases decided by the Regional Trial Court in the exercise
of its appellate jurisdiction shall be by petition for review in
accordance with Rule 42.
(c) Appeal by certiorari. - In all cases where only questions of
law are raised or involved, the appeal shall be to the
Supreme Court by petition for review on certiorari in
accordance with Rule 45. (n)
Section 3. Period of ordinary appeal; appeal in habeas
corpus cases. - The appeal shall be taken within fifteen (15)
days from notice of the judgment or final order appealed
from. Where a record on appeal is required, the appellants
shall file a notice of appeal and a record on appeal within
thirty (30) days from notice of the judgment or final order.
However, on appeal in habeas corpus cases shall be taken
within forty-eight (48) hours from notice of the judgment or
final order appealed from. (A.M No. 01-1-03-SC,
June 19, 2001.)
The period of appeal shall be interrupted by a timely motion
for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be
allowed. (n)
Section 4. Appellate court docket and other lawful fees. -
Within the period for taking an appeal, the appellant shall
pay to the clerk of the court which rendered the judgment or
final order appealed from, the full amount of the appellate
court dock et and other lawful fees. Proof of payment of said
fees shall be transmitted to the appellate court together with
the original record or the record on appeal. (n)
Section 5. Notice of appeal. - The notice of appeal shall
indicate the parties to the appeal, specify the judgment or
final order or part thereof appealed from, specify the court to
which the appeal is being taken, and state the material dates
showing the timeliness of the appeal. (4a)
Section 6. Record on appeal; form and contents thereof -
The full names of all the parties to the proceedings shall be
stated in the caption of the record on appeal and it shall
include the judgment or final order from which the appeal is
taken and, in chronological order, copies of only such
pleadings, petitions, motions and all interlocutory orders as
are related to the appealed judgment or final order for the
proper understanding of the issue involved, together with
such data as will show that the appeal was perfected on
time. If an issue of fact is to be raised on appeal, the record
on appeal shall include by reference all the evidence,
testimonial and documentary, taken upon the issue involved.
The reference shall specify the documentary evidence by the
exhibit numbers or letters by which it was identified when
admitted or offered at the hearing, and the testimonial
evidence by the names of the corresponding witnesses. If
the whole testimonial and documentary evidence in the case
is to be included, a statement to that effect will be sufficient
without mentioning the names of the witnesses or the
numbers or letters of exhibits. Every record on appeal
exceeding twenty (20) pages must contain a subject index.
(6a)
Section 7. Approval of record on appeal. - Upon the filing of
the record on appeal for approval and if no objection is filed
by the appellee within five (5) days from receipt of a copy
thereof, the trial court may approve it as presented or upon
its own motion or at the instance of the appellee, may direct
its amendment by the inclusion of any omitted matters which
are deemed essential to the determination of the issue of law
or fact involved in the appeal. If the trial court orders the
amendment of the record, the appellant, within the time
limited in the order, or such extension thereof as may be
granted, or if no time is fixed by the order within ten (10)
days from receipt thereof, shall redraft the record by
including therein, in their proper chronological sequence,
such additional matters as the court may have directed him
to incorporate, and shall thereupon submit the redrafted
record for approval, upon notice to the appellee, in like
manner as the original draft.(7a)
Section 8. Joint record on appeal. - Where both parties are
appellants, they may file a joint record on appeal within the
time fixed by section 3 of this Rule, or that fixed by the court.
(8a)
Section 9. Perfection of appeal; effect thereof - A partys
appeal by notice of appeal is deemed perfected as to him
upon the filing of the notice of appeal in due time.
A partys appeal by record on appeal is deemed perfected as
to him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction
over the case upon the perfection of the appeals filed in due
time and the expiration of the time to appeal of the other
parties.
In appeals by record on appeal, the court loses jurisdiction
only over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the
time to appeal of the other parties.
In either case, prior to the transmittal of the original record or
the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of
Rule 39, and allow withdrawal of the appeal. (9a)
Section 10. Duty of clerk of court of the lower court upon
perfection of appeal. - Within thirty (30) days after perfection
of all the appeals in accordance with the preceding section, it
shall be the duty of the clerk of court of the lower court:
(a) To verify the correctness of the original record or the
record on appeal, as the case may be, and to make a
certification of its correctness;
(b) To verify the completeness of the records that will be
transmitted to the appellate court;
(c) If found to be incomplete, to take such measures as may
be required to complete the records, availing of the authority
that he or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall indicate in
his letter of transmittal the exhibits or transcripts not included
in the records being transmitted to the appellate court, the
reasons for their non-transmittal, and the steps taken or that
could be taken to have them available.
The clerk of court shall furnish the parties with copies of his
letter of transmittal of the records to the appellate court.
(10a)
Section 11. Transcript. - Upon the perfection of the appeal,
the clerk shall immediately direct the stenographers
concerned to attach to the record of the case five (5) copies
of the transcripts of the testimonial evidence referred to in
the record on appeal. The stenographers concerned shall
transcribe such testimonial evidence and shall prepare and
affix to their transcripts an index containing the names of the
witnesses and the pages wherein their testimonies are
found, and a list of the exhibits and the pages wherein each
of them appears to have been offered and admitted or
rejected by the trial court. The transcripts shall be
transmitted to the clerk of the trial court who shall thereupon
arrange the same in the order in which the witnesses
testified at the trial, and shall cause the pages to be
numbered consecutively. (12a)
Section 12. Transmittal. - The clerk of the trial court shall
transmit to the appellate court the original record or the
approved record on appeal within thirty (30) days from the
perfection of the appeal, together with the proof of payment
of the appellate court dock et and other lawful fees, a
certified true copy of the minutes of the proceedings, the
order of approval, the certificate of correctness, the original
documentary evidence referred to therein, and the original
and three (3) copies of the transcripts. Copies of the
transcripts and certified true copies of the documentary
evidence shall remain in the lower court for the examination
of the parties. (11a)
Section 13. Dismissal of appeal. - Prior to the transmittal of
the original record or the record on appeal to the appellate
court, the trial court may, motu proprio or on motion, dismiss
the appeal for having been taken out of time or for non-
payment of the dock et and other lawful fees within the
reglementary period. (As amended by A.M No. 00-2-10-SC,
May 1, 2000.)
y. Appeal Brief – Sec. 13 and 14, Rule 44 of the
Rules of Court
Section 13. Contents of appellant’s brief - The appellant’s
brief shall contain, in the order herein indicated, the
following:
(a) A subject index of the matter in the brief with a digest of
the arguments and page references, and a table of cases
alphabetically arranged, textbook s and statutes cited with
references to the pages where they are cited;
(b) An assignment of errors intended to be urged, which
errors shall be separately, distinctly and concisely stated
without repetition and numbered consecutively;
(c) Under the heading Statement of the Case,a clear and
concise statement of the nature of the action, a summary of
the proceedings, the appealed rulings and orders of the
court, the nature of the judgment and any other matters
necessary to an understanding of the nature of the
controversy, with page references to the record;
(d) Under the heading Statement of Facts,a clear and
concise statement in a narrative form of the facts admitted by
both parties and of those in controversy, together with the
substance of the proof relating thereto in sufficient detail to
make it clearly intelligible, with page references to the
record;
(e) A clear and concise statement of the issues of fact or law
to be submitted to the court for its judgment;
(f) Under the heading Argument,the appellants arguments on
each assignment of error with page references to the record.
The authorities relied upon shall be cited by the page of the
report at which the case begins and the page of the report on
which the citation is found;
(g) Under the heading Relief,a specification of the order or
judgment which the appellant seeks; and
(h) In cases not brought up by record on appeal, the
appellants brief shall contain, as an appendix, a copy of the
judgment or final order appealed from. (16a, R46)
Section 14. Contents of appellee s brief - The appellee’s
brief shall contain, in the order herein indicated, the
following:
(a) A subject index of the matter in the brief with a digest of
the arguments and page references, and a table of cases
alphabetically arranged, textbook s and statutes cited with
references to the pages where they are cited;
(b) Under the heading Statement of Facts,the appellee shall
state that he accepts the statement of facts in the appellant s
brief, or under the heading Counter-Statement of Facts,he
shall point out such insufficiencies or inaccuracies as he
believes exist in the appellants statement of facts with
references to the pages of the record in support thereof, but
without repetition of matters in the appellants statement of
facts; and
(c) Under the heading Argument,the appellee shall set forth
his arguments in the case on each assignment of error with
page references to the record. The authorities relied on shall
be cited by the page of the report at which the case begins
and the page of the report on which the citation is found.
(17a, R46)
G.R. No. 142316 November 22, 2001
FRANCISCO A.G. DE LIANO, ALBERTO O. VILLA-ABRILLE, JR.,
and SAN MIGUEL CORPORATION, petitioners,
vs.
HON. COURT OF APPEALS and BENJAMIN A.
TANGO, respondents.
DE LEON, JR., J.:
Before us is a petition for review on certiorari praying for the reversal of
1 lapses justify the dismissal of the appeal, pursuant to Section
the Resolution dated June 4, 1999 issued by the former Fourteenth
Division of the Court of Appeals in CA-G.R. CV No. 60460, which
dismissed the appeal of herein petitioners on procedural grounds as
well as its Resolution of February 23, 2000 which denied their motion
for reconsideration.
The relevant facts are:
On March 30, 1998, the Regional Trial Court of Quezon City, Branch
2 3
227 issued a Decision in Civil Case No. Q-95-24332, the dispositive
portion of which is hereunder quoted:
WHEREFORE, premises considered, defendant San Miguel
Corporation is hereby ordered
1. To release to the plaintiff the owner's duplicate copy of
TCT No. 299551 in the same [sic] of Benjamin A. Tango;
2. To release to plaintiff the originals of the REM contracts
dated December 4, 1990 and February 17, 1992 and to
cause the cancellation of the annotation of the same on
plaintiffs [sic] TCT No. 299551;
3. To pay the plaintiff the following sums:
3.1. P100,000.00 as and by way of moral
damages;
3.2. P50,000.00 as and by way of attorney's fees;
3.3. costs of suit.
SO ORDERED.
In brief, the case involved the cancellation of two (2) real estate
mortgages in favor of petitioner San Miguel Corporation (SMC)
executed by private respondent Benjamin A. Tango over his house and
lot in Quezon City. The mortgages were third party or accommodation
mortgages on behalf of the spouses Bernardino and Carmelita Ibarra
who were dealers of SMC products in Aparri, Cagayan. Other
defendants in the case were Francisco A.G. De Liano and Alberto O.
Villa-Abrille, Jr., who are senior executives of petitioner SMC.
SMC, De Liano and Abrille appealed the aforesaid decision to the
Court of Appeals. In due time, their counsel, Atty. Edgar B. Afable, filed
4
an Appellants' Brief which failed to comply with Section 13, Rule 44 of
the Rules of Court. The appellee (herein private respondent) was quick
to notice these deficiencies, and accordingly filed a "Motion to Dismiss
5 6
Appeal" dated March 8, 1999. Required to comment, the appellants
averred that their brief had substantially complied with the contents as
set forth in the rules. They proffered the excuse that the omissions
were only the result of oversight or inadvertence and as such could be
considered "harmless" errors. They prayed for liberality in the
application of technical rules, adding that they have a meritorious
defense.
On June 4, 1999, the appellate court issued the first assailed
7
resolution dismissing the appeal. The Court of Appeals held, as
follows:
xxx xxx xxx
As pointed out by plaintiff-appellee, the Brief does not
contain a Subject Index nor a Table of Cases and
Authorities, with page references. Moreover, the Statement
of the Case, Statement of Facts, and Arguments in the Brief
has no page reference to the record. These procedural
1 (f), Rule 50 of 1997 Rules of Civil Procedure, as amended,
which reads:
"SECTION 1. Grounds for dismissal of appeal. —
An appeal may be dismissed by the Court of
Appeals, on its own motion, or on that of the
appellee, on the following grounds:
xxx xxx xxx
(f) Absence of specific assignment of errors in the
appellant's brief, or of page references to the
record as required in section 13, paragraphs (a),
(c), (d) and (f) of Rule 44;"
xxx xxx xxx
Finally, defendants-appellants, despite having been notified
of such defects, still failed to amend their Brief to conform to
the Rules, and instead, argues that these are mere
"harmless errors." In the case of Del Rosario v. Court of
Appeals, G.R. No. 113899, February 22, 1996, 241 SCRA
553 [1996], the Supreme Court, in sustaining the dismissal of
the petitioner's appeal for non-compliance with the rule on
the contents of the Appellant's Brief, ruled that:
"Long ingrained in our jurisprudence is the rule
that the right to appeal is a statutory right and a
party who seeks to avail of the right must faithfully
comply with the rules. x x x These rules are
designed to facilitate the orderly disposition of
appealed cases. In an age where courts are
bedeviled by clogged dockets, these rules need to
be followed by appellants with greater fidelity.
Their observance cannot be left to the whims and
caprices of appellants. x x x
Having ruled as such, the Court need not resolve plaintiff-
appellee's contention that the issues raised in the appeal are
mere questions of law.
The appellants (herein petitioners) sought to have the foregoing
resolution reconsidered. Simultaneously, through the same counsel,
they filed a "Motion to Admit Amended Defendants-Appellants'
8
Brief." The appellate court denied the consolidated motions in its
9
Resolution of February 23, 2000.
From the denial of their motion for reconsideration, only petitioner SMC
10
interposed the instant petition. As grounds for allowance, petitioner
contends that:
A
THE COURT OF APPEALS ERRED IN DISMISSING SMC's
APPEAL ON THE BASIS OF PURE TECHNICALITIES AND
EVEN AFTER SMC HAS CORRECTED THE TECHNICAL
DEFECT OF ITS APPEAL.
B (f) Under the heading "Argument," the appellant's arguments
THE COURT OF APPEALS ERRED IN DISMISSING SMC's
APPEAL WITHOUT CONSIDERING ITS MERITS.
1. There are valid grounds to reverse the RTC's
award of damages in favor of Tango. The award of
damages has no basis in fact or in law.
2. The appeal involves a question of substance
which should have been resolved by the Court of
Appeals, to wit: whether a third party mortgagor
can unilaterally withdraw the mortgage without the
consent of the debtor and creditor.
The petition has no merit.
The premise that underlies all appeals is that they are merely rights
which arise from statute; therefore, they must be exercised in the
manner prescribed by law. It is to this end that rules governing
pleadings and practice before appellate courts were imposed. These
rules were designed to assist the appellate court in the
accomplishment of its tasks, and overall, to enhance the orderly
administration of justice.
In his definition of a brief, Justice Malcolm explained thus:
x x x [L]et it be recalled that the word "brief" is derived from
the Latin brevis, and the French briefe, and literally means a
short or condensed statement. The purpose of the brief, as
all law students and lawyers know, is to present to the court
in concise form the points and questions in controversy, and
by fair argument on the facts and law of the case to assist
the court in arriving at a just and proper conclusion. The brief
should be so prepared as to minimize the labor of the court
in the examination of the record upon which the appeal is
11
heard and determined. [emphasis supplied]
Relative thereto, Section 13, Rule 44 of the Revised Rules of Court
governs the format to be followed by the appellant in drafting his brief,
as follows:
Contents of appellant's brief. — The appellant's brief shall
contain, in the order herein indicated, the following:
(a) A subject index of the matter in the brief with a digest of
the arguments and page references, and a table of cases
alphabetically arranged, textbooks and statutes cited with
references to the pages where they are cited;
(b) An assignment of errors intended to be urged, which
errors shall be separately, distinctly and concisely stated
without repetition and numbered consecutively;
(c) Under the heading "Statement of the Case," a clear and
concise statement of the nature of the action, a summary of
the proceedings, the appealed rulings and orders of the
court, the nature of the judgment and any other matters
necessary to an understanding of the nature of the
controversy, with page references to the record;
(d) Under the heading "Statement of Facts," a clear and
concise statement in a narrative form of the facts admitted by
both parties and of those in controversy, together with the
substance of the proof resulting thereto in sufficient detail to
make it clearly intelligible, with page references to the
record;
(e) A clear and concise statement of the issues of fact or law
to be submitted to the court for its judgment;
on each assignment of error with page references to the
record. The authorities relied upon shall be cited by the page
of the report at which the case begins and the page of the
report on which the citation is found;
(g) Under the heading "Relief," a specification of the order or
judgment which the appellant seeks; and
(h) In cases not brought up by record on appeal, the
appellant's brief shall contain, as an appendix, a copy of the
judgment or final order appealed from.
This particular rule was instituted with reason, and most certainly, it
was not intended to become " a custom more honored in the breach
than in the observance." It has its logic, which is to present to the
appellate court in the most helpful light, the factual and legal
antecedents of a case on appeal.
The first requirement of an appellant's brief is a subject index. The
index is intended to facilitate the review of appeals by providing ready
reference, functioning much like a table of contents. Unlike in other
jurisdiction, there is no limit on the length of appeal briefs or appeal
memoranda filed before appellate courts. The danger of this is the very
real possibility that the reviewing tribunal will be swamped with
voluminous documents. This occurs even though the rules consistently
urge the parties to be "brief" or "concise" in the drafting of pleadings,
briefs, and other papers to be filed in court. The subject index makes
readily available at one's fingertips the subject of the contents of the
brief so that the need to thumb through the brief page after page to
locate a party's arguments, or a particular citation, or whatever else
needs to be found and considered, is obviated.
An assignment of errors follows the subject index. It is defined in this
wise:
An assignment of errors in appellate procedure is an
enumeration by appellant or plaintiff in error of the errors
alleged to have been committed by the court below in the
trial of the case upon which he seeks to obtain a reversal of
the judgment or decree; it is in the nature of a pleading, and
performs in the appellate court the same office as a
declaration or complaint in a court of original jurisdiction.
Such an assignment is appellant's complaint, or pleading, in
the appellate court, and takes the place of a declaration or
bill; an appeal without an assignment of errors would be
similar to a suit without a complaint, bill, or declaration. The
assignment is appellant's declaration or complaint against
the trial judge, charging harmful error, and proof vel non of
assignment is within the record on appeal.
xxx xxx xxx
The object of such pleadings is to point out the specific
errors claimed to have been committed by the court below, in
order to enable the reviewing court and the opposing party to
see on what points appellant or plaintiff in error intends to
ask a reversal of the judgment or decree, and to limit
discussion to those points. The office of an assignment of
errors is not to point out legal contentions, but only to inform
the appellate court that appellant assigns as erroneous
certain named rulings; the function of the assignment is to
group and bring forward such of the exceptions previously
noted in the case on appeal as appellant desires to preserve
and present to the appellant.
12
It has been held that a general assignment of errors is unacceptable
under the rules. Thus, a statement of the following tenor: that "the
Court of First Instance of this City incurred error in rendering the
judgment appealed from, for it is contrary to law and the weight of the
13
evidence," was deemed insufficient. The appellant has to specify in
what aspect of the law or the facts that the trial court erred. The
conclusion, therefore, is that the appellant must carefully formulate his
assignment of errors. Its importance cannot be underestimated, as
Section 8, Rule 51 of the Rules of Court will attest:
Questions that may be decided. — No error which does not
affect the jurisdiction over the subject matter or the validity of
the judgment appealed from or the proceedings therein will
be considered unless stated in the assignment of errors, or
closely related to or dependent on an assigned error and
properly argued in the brief, save as the court may pass
upon plain errors and clerical errors.
The rules then require that an appellant's brief must contain both a
"statement of the case" and a "statement of facts." A statement of the
case gives the appellate tribunal an overview of the judicial
antecedents of the case, providing material information regarding the
nature of the controversy, the proceedings before the trial court, the
orders and rulings elevated on appeal, and the judgment itself. These
data enable the appellate court to have a better grasp of the matter
entrusted to it for its appraisal.
In turn, the statement of facts comprises the very heart of the
appellant's brief. The facts constitute the backbone of a legal
argument; they are determinative of the law and jurisprudence
applicable to the case, and consequently, will govern the appropriate
relief. Appellants should remember that the Court of Appeals is
empowered to review both questions of law and of facts. Otherwise,
where only a pure question of law is involved, appeal would pertain to
this Court. An appellant, therefore, should take care to state the facts
accurately though it is permissible to present them in a manner
favorable to one party. The brief must state the facts admitted by the
parties, as well as the facts in controversy. To laymen, the distinction
may appear insubstantial, but the difference is clear to the practitioner
and the student of law. Facts which are admitted require no further
proof, whereas facts in dispute must be backed by evidence. Relative
thereto, the rule specifically requires that one's statement of facts
should be supported by page references to the record. Indeed,
disobedience therewith has been punished by dismissal of the
14
appeal. Page references to the record are not an empty requirement.
If a statement of fact is unaccompanied by a page reference to the
record, it may be presumed to be without support in the record and
15
may be stricken or disregarded altogether.
When the appellant has given an account of the case and of the facts,
he is required to state the issues to be considered by the appellate
court. The statement of issues is not to be confused with the
assignment of errors: they are not one and the same, for otherwise, the
rules would not require a separate statement for each. The statement
of issues puts forth the questions of fact or law to be resolved by the
appellate court. What constitutes a question of fact or one of law
should be clear by now:
At this point, the distinction between a question of fact and a
question of law must be clear. As distinguished from a
question of law which exists "when the doubt or difference
arises as to what the law is on certain state of facts"—"there
is a question of fact when the doubt or difference arises as to
the truth or the falsehood of alleged facts;" or when the
"query necessarily invites calibration of the whole evidence
considering mainly the credibility of witnesses, existence and
relevancy of specific surrounding circumstances, their
relation to each other and to the whole and the probabilities
16
of the situation."
Thereafter, the appellant is required to present his arguments on each
assigned error. An appellant's arguments go hand in hand with his
assignment of errors, for the former provide the justification supporting
his contentions, and in so doing resolves the issues. It will not do to
impute error on the part of the trial court without substantiation. The
mere elevation on appeal of a judgment does not create a presumption
that it was rendered in error. The appellant has to show that he is
entitled to the reversal of the judgment appealed, and he cannot do this
unless he provides satisfactory reasons for doing so. It is therefore
essential that —
x x x [A]s far as possible, the errors and reasons assigned
should be supported by a citation of authorities. The failure
to do so has been said to be inexcusable; and, although a
point made in the brief is before the court even though no
authorities are cited and may be considered and will be
where a proposition of well established law is stated, the
court is not required to search out authorities, but may
presume that counsel has found no case after diligent search
or that the point has been waived or abandoned, and need
not consider the unsupported errors assigned, and ordinarily
will not give consideration to such errors and reasons unless
it is apparent without further research that the assignments
17
of errors presented are well taken.
In this regard, the rules require that authorities should be cited by the
page of the report at which the case begins, as well as the page of the
report where the citation is found. This rule is imposed for the
convenience of the appellate court, for obvious reasons: since
authorities relied upon by the parties are checked for accuracy and
aptness, they are located more easily as the appellate court is not
bound to peruse volume upon volume, and page after page, of reports.
Lastly, the appellant is required to state, under the appropriate
heading, the reliefs prayed for. In so doing, the appellate court is left in
no doubt as to the result desired by the appellant, and act as the
circumstances may warrant.
Some may argue that adherence to these formal requirements serves
but a meaningless purpose, that these may be ignored with little risk in
the smug certainty that liberality in the application of procedural rules
can always be relied upon to remedy the infirmities. This misses the
point. We are not martinets; in appropriate instances, we are prepared
to listen to reason, and to give relief as the circumstances may warrant.
However, when the error relates to something so elementary as to be
inexcusable, our discretion becomes nothing more than an exercise in
frustration. It comes as an unpleasant shock to us that the contents of
an appellant's brief should still be raised as an issue now. There is
nothing arcane or novel about the provisions of Section 13, Rule 44.
The rule governing the contents of appellants' briefs has existed since
18
the old Rules of Court, which took effect on July 1, 1940, as well as
19
the Revised Rules of Court, which took effect on January 1, 1964,
until they were superseded by the present 1997 Rules of Civil
Procedure. The provisions were substantially preserved, with few
revisions.
An additional circumstance impels us to deny the reinstatement of
petitioner's appeal. We observed that petitioner submitted an
"Amended Appellant's Brief" to cure the infirmities of the one first filed
on its behalf by its lawyer. All things being equal, we would have been
inclined to grant the petition until we realized that the attempt at
compliance was, at most, only a cosmetic procedure. On closer
scrutiny, the amended brief was as defective as the first. Where the
first brief lacked an assignment of errors but included a statement of
issues, the amended brief suffered a complete reversal: it had an
assignment of errors but no statement of issues. The "statement of
facts" lacked page references to the record, a deficiency symptomatic
of the first. Authorities were cited in an improper manner, that is, the
exact page of the report where the citation was lifted went
20
unspecified. The amended brief did not even follow the prescribed
order: the assignment of errors came after the statement of the case
and the statement of facts. No one could be expected to ignore such
glaring errors, as in the case at bar. The half-hearted attempt at
submitting a supposedly amended brief only serves to harden our
resolve to demand a strict observance of the rules.
We remind members of the bar that their first duty is to comply with the
rules, not to seek exceptions. As was expressed more recently in Del
21
Rosario v. Court of Appeals, which was rightfully quoted by the
appellate court, we ruled that:
Petitioner's plea for liberality in applying these rules in
preparing Appellants' Brief does not deserve any sympathy.
Long ingrained in our jurisprudence is the rule that the right
to appeal is a statutory right and a party who seeks to avail
of the right must faithfully comply with the rules. In People v.
 Marong, we held that deviations from the rules cannot be
tolerated. The rationale for this strict attitude is not difficult to
appreciate. These rules are designed to facilitate the orderly
disposition of appealed cases. In an age where courts are
bedeviled by clogged dockets, these rules need to be
followed by appellants with greater fidelity. Their observance
cannot be after to the whims and caprices of appellants. In
the case at bar, counselor petitioners had all the opportunity
to comply with the above rules. He remained obstinate in his
non-observance even when he sought reconsideration of the
ruling of the respondent court dismissing his clients' appeal.
Such obstinacy is incongruous with his late plea for liberality
in construing the rules on appeal. [italics supplied]
Anent the second issue, it may prove useful to elucidate on the
processing of appeals in the Court of Appeals. In so doing, it will help
to explain why the former Fourteenth Division of the appellate court
could not look into the merits of the appeal, as petitioner corporation is
urging us to do now.
The Rules of Court prescribe two (2) modes of appeal from decisions
of the Regional Trial Courts 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
22
Rule 41. In contrast, where the assailed decision was rendered by
the trial court in the exercise of its appellate jurisdiction, the mode of
23
appeal is via a petition for review pursuant to Rule 42. We are more
concerned here about the first mode since the case at bar involves a
decision rendered by the Regional Trial Court exercising its original
jurisdiction.
the second stage. The Justice in-charge of completion exceeds his
province should he examine the merits of the case since his function is
to oversee completion only. The prerogative of determining the merits
of an appeal pertains properly to the Justice to whom the case is
raffled for study and report. The case at bar did not reach the second
stage; it was dismissed during completion stage pursuant to Section 1
(f) of Rule 50. Consequently, petitioner's contention that the appellate
court should have considered the substance of the appeal prior to
dismissing it due to technicalities does not gain our favor.
Generally, the negligence of counsel binds his client. Actually, Atty.
28
Afable is also an employee of petitioner San Miguel Corporation. Yet
even this detail will not operate in petitioner's favor. A corporation, it
should be recalled, is an artificial being whose juridical personality is
only a fiction created by law. It can only exercise its powers and
transact its business through the instrumentalities of its board of
directors, and through its officers and agents, when authorized by
resolution or its by-laws.
x x x Moreover, " . x x x a corporate officer or agent may
represent and bind the corporation in transactions with third
persons to the extent that authority to do so has been
conferred upon him, and this includes powers which have
been intentionally conferred, and also such powers as, in the
usual course of the particular business, are incidental to, or
may be implied from, the powers intentionally conferred,
powers added by custom and usage, as usually pertaining to
the particular officer or agent, and such apparent powers as
the corporation has caused persons dealing with the officer
29
or agent to believe that it has conferred.

Cases elevated to the Court of Appeals are treated differently
depending upon their classification into one of three (3) categories:
24
appealed civil cases, 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
25
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, thus:
That Atty. Afable was clothed with sufficient authority to bind petitioner
SMC is undisputable. Petitioner SMC's board resolution of May 5, 1999
attests to that. Coupled with the provision of law that a lawyer has
authority to bind his client in taking appeals and in all matters of
30
ordinary judicial procedure, a fortiori then, petitioner SMC must be
held bound by the actuations of its counsel of record, Atty. Afable.
WHEREFORE, the instant petition is hereby DENIED for lack of merit,
with cost against petitioner San Miguel Corporation.

SO ORDERED.
When case deemed submitted for judgment. — A case shall
be deemed submitted for judgment:

A. In ordinary appeals. —

1) Where no hearing on the merits of the main

case is held, upon the filing of the last pleading,
brief, or memorandum required by the Rules or by
the court itself, or the expiration of the period for its
filing;

2) Where such a hearing is held, upon its

termination or upon the filing of the last pleading or
memorandum as may be required or permitted to
be filed by the court, or the expiration of the period
26
for its filing.

xxx xxx xxx

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, a second raffle is conducted to
determine the Justice to whom the case will be assigned for
27
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.

The aforesaid distinction has a bearing on the case at bar. It becomes

apparent that the merits of the appeal can only be looked into during
 z. Affidavit of Merit attached to a petition for relief
from judgment – Sec. 3, Rule 38 of the Rules of
Court
Section 3. Time for filing petition; contents and verification. -
A petition provided for in either of the preceding sections of
this Rule must be verified, filed within sixty (60) days after
the petitioner learns of the judgment, final order, or other
proceeding to be set aside, and not more than six (6) months
after such judgment or final order was entered, or such
proceeding was taken; and must be accompanied with
affidavits showing the fraud, accident, mistake, or excusable
negligence relied upon, and the facts constituting the
petitioner’ s good and substantial cause of action or defense,
as the case may be. (3)
aa. Petition for Review from the Regional Trial Courts
to the Court of Appeals – Rule 42 of the Rules of
Court
RULE 42
PETITION FOR REVIEW FROM THE REGIONAL TRIAL
COURTS
TO THE COURT OF APPEALS
Section 1. How appeal taken; time for filing. - A party
desiring to appeal from a decision of the Regional Trial Court
rendered in the exercise of its appellate jurisdiction may file a
verified petition for review with the Court of Appeals, paying
at the same time to the clerk of said court the corresponding
docket and other lawful fees, depositing the amount of
P500.00 for costs, and furnishing the Regional Trial Court
and the adverse party with a copy of the petition. The petition
shall be filed and served within fifteen (15) days from notice
of the decision sought to be reviewed or of the denial of
petitioners motion for new trial or reconsideration filed in due
time after judgment. Upon proper motion and the payment of
the full amount of the dock et and other lawful fees and the
deposit for costs before the expiration of the reglementary
period, the Court of Appeals may grant an additional period
of fifteen (15) days only within which to file the petition for
review. No further extension shall be granted except for the
most compelling reason and in no case to exceed fifteen (15)
days. (n)
Section 2. Form and contents. - The petition shall be filed in
seven (7) legible copies, with the original copy intended for
the court being indicated as such by the petitioner, and shall
(a) state the full names of the parties to the case, without
impleading the lower courts or judges thereof either as
petitioners or respondents; (b) indicate the specific material
dates showing that it was filed on time; (c) set forth concisely
a statement of the matters involved, the issues raised, the
specification of errors of fact or law, or both, allegedly
committed by the Regional Trial Court, and the reasons or
arguments relied upon for the allowance of the appeal; (d) be
accompanied by clearly legible duplicate originals or true
copies of the judgments or final orders of both lower courts,
certified correct by the clerk of court of the Regional Trial
Court, the requisite number of plain copies thereof and of the
pleadings and other material portions of the record as would
support the allegations of the petition.
The petitioner shall also submit together with the petition a
certification under oath that he has not theretofore
commenced any other action involving the same issues in
the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; if there is
such other action or proceeding, he must state the status of
the same; and if he should thereafter learn that a similar
action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and other tribunal or
agency thereof within five (5) days therefrom. (n)
Section 3. Effect of failure to comply with requirements. - The
failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the dock et and other
lawful fees, the deposit for costs, proof of service of the
petition, and the contents of and the documents which
should accompany the petition shall be sufficient ground for
the dismissal thereof. (n)
Section 4. Action on the petition. - The Court of Appeals may
require the respondent to file a comment on the petition, not
a motion to dismiss, within ten (10) days from notice, or
dismiss the petition if it finds the same to be patently without
merit, prosecuted manifestly for delay, or that the questions
raised therein are too unsubstantial to require consideration.
(n)
Section 5. Contents of comment. - The comment of the
respondent shall be filed in seven (7) legible copies,
accompanied by certified true copies of such material
portions of the record referred to therein together with other
supporting papers and shall (a) state whether or not he
accepts the statement of matters involved in the petition; (b)
point out such insufficiencies or inaccuracies as he believes
exist in petitioner’s statement of matters involved but without
repetition; and (c) state the reasons why the petition should
not be given due course. A copy thereof shall be served on
the petitioner. (n)
Section 6. Due course. - If upon the filing of the comment or
such other pleadings as the court may allow or require, or
after the expiration of the period for the filing thereof without
such comment or pleading having been submitted, the Court
of Appeals finds prima facie that the lower court has
committed an error of fact or law that will warrant a reversal
or modification of the appealed decision, it may accordingly
give due course to the petition. (n)
Section 7. Elevation of record. - Whenever the Court of
Appeals deems it necessary, it may order the clerk of court
of the Regional Trial Court to elevate the original record of
the case including the oral and documentary evidence within
fifteen (15) days from notice. (n)
Section 8. Perfection of appeal; effect thereof -
(a) Upon the timely filing of a petition for review and the
payment of the corresponding dock et and other lawful fees,
the appeal is deemed perfected as to the petitioner.
The Regional Trial Court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
However, before the Court of Appeals gives due course to
the petition, the Regional Trial Court may issue orders for the
protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of
Rule 39, and allow withdrawal of the appeal. (9a, R41)
(b) Except in civil cases decided under the Rule on Summary
Procedure, the appeal shall stay the judgment or final order
unless the Court of Appeals, the law, or these Rules shall
provide otherwise. (n)
Section 9. Submission for decision. - If the petition is given
due course, the Court of Appeals may set the case for oral
argument or require the parties to submit memoranda within
a period of fifteen (15) days from notice. The case shall be
deemed submitted for decision upon the filing of the last
pleading or memorandum required by these Rules or by the
court itself. (n)
bb. Petition for Review (Appeal from the quasi–judicial
agency to the Court of Appeals) – Rule 43 of the
Rules of Court
RULE 43
APPEALS FROM THE COURT OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES TO THE COURT OF
APPEALS
Section 1. Scope. - This Rule shall apply to appeals from
judgments or final orders of the Court of Tax Appeals and
from awards, judgments, final orders or resolutions of or
authorized by any quasi judicial agency in the exercise of its
quasi -judicial functions. Among these agencies are the Civil
Service Commission, Central Board of Assessment Appeals,
Securities and Exchange Commission, Office of the
President, Land Registration Authority, Social Security
Commission, Civil Aeronautics Board, Bureau of Patents,
Trademark s and Technology Transfer, National
Electrification Administration, Energy Regulatory Board,
National Telecommunications Commission, Department of
Agrarian Reform under Republic Act No. 6657, Government
Service Insurance System, Employees Compensation
Commission, Agricultural Inventions Board, Insurance
Commission, Philippine Atomic Energy Commission, Board
of Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators authorized by law. (n)
Section 2. Cases not covered. - This Rule shall not apply to
judgments or final orders issued under the Labor Code of
Philippines. (n)
Section 3. Where to appeal. - An appeal under this Rule may
be taken to the Court of Appeals within the period and in the
manner herein provided, whether the appeal involves
questions of fact, of law, or mixed questions of fact and law.
(n)
Section 4. Period of appeal. - The appeal shall be taken
within fifteen (15) days from notice of the award, judgment,
final order or resolution, or from the date of its last
publication, if publication is required by law for its effectivity,
or of the denial of petitioners motion for new trial or
reconsideration duly filed in accordance with the governing
law of the court or agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon proper motion and
the payment of the full amount of the dock et fee before the
expiration of the reglementary period, the Court of Appeals
may grant an additional period of fifteen (15) days only within
which to file the petition for review. No further extension shall
be granted except for the most compelling reason and in no
case to exceed fifteen (15) days. (n)
Section 5. How appeal taken. - Appeal shall be taken by
filing a verified petition for review in seven (7) legible copies
with the Court of Appeals, with proof of service of a copy
thereof on the adverse party and on the court or agency a
quo. The original copy of the petition intended for the Court
of Appeals shall be indicated as such by the petitioner.
Upon the filing of the petition, the petitioner shall pay to the
clerk of court of the Court of Appeals the docketing and other
lawful fees and deposit the sum ofP500.00 for costs.
Exemption from payment of docketing and other lawful fees
and the deposit for costs may be granted by the Court of
Appeals upon a verified motion setting forth valid grounds
therefor. If the Court of Appeals denies the motion, the
petitioner shall pay the docketing and other lawful fees and
deposit for costs within fifteen (15) days from notice of the
denial. (n)
Section 6. Contents of the petition. - The petition for review
shall (a) state the full names of the parties to the case,
without impleading the court or agencies either as petitioners
or respondents; (b) contain a concise statement of the facts
and issues involved and the grounds relied upon for the
review; (c) be accompanied by a clearly legible duplicate
original or a certified true copy of the award, judgment, final
order or resolution appealed from, together with certified true
copies of such material portions of the record referred to
therein and other supporting papers; and (d) contain a sworn
certification against forum shopping as provided in the last
paragraph of section 2, Rule 42. The petition shall state the
specific material dates showing that it was filed within the
period fixed herein. (2a)
Section 7. Effect of failure to comply with requirements. - The
failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the dock et and other
lawful fees, the deposit for costs, proof of service of the
petition, and the contents of and the documents which
should accompany the petition shall be sufficient ground for
the dismissal thereof. (n)
Section 8. Action on the petition. - The Court of Appeals may
require the respondent to file a comment on the petition, not
a motion to dismiss, within ten (10) days from notice, or
dismiss the petition if it finds the same to be patently without
merit, prosecuted manifestly for delay, or that the questions
raised therein are too unsubstantial to require consideration.
(6a)
Section 9. Contents of comment. - The comment shall be
filed within ten (10) days from notice in seven (7) legible
copies and accompanied by clearly legible certified true
copies of such material portions of the record referred to
therein together with other supporting papers. The comment
shall (a) point out insufficiencies or inaccuracies in
petitioners statement of facts and issues; and (b) state the
reasons why the petition should be denied or dismissed. A
copy thereof shall be served on the petitioner, and proof of
such service shall be filed with the Court of Appeals. (9a)
Section 10. Due course. - If upon the filing of the comment or
such other pleadings or documents as may be required or
allowed by the Court of Appeals or upon the expiration of the
period for the filing thereof, and on the basis of the petition or
the records the Court of Appeals finds prima facie that the
court or agency concerned has committed errors of fact or
law that would warrant reversal or modification of the award,
judgment, final order or resolution sought to be reviewed, it
may give due course to the petition; otherwise, it shall
dismiss the same. The findings of fact of the court or agency
concerned, when supported by substantial evidence, shall be
binding on the Court of Appeals. (n)
Section 11. Transmittal of record. - Within fifteen (15) days
from notice that the petition has been given due course, the
Court of Appeals may require the court or agency concerned
to transmit the original or a legible certified true copy of the
entire record of the proceeding under review. The record to
be transmitted may be abridged by agreement of all parties
to the proceeding. The Court of Appeals may require or
permit subsequent correction of or addition to the record.
(8a)
Section 12. Effect of appeal. - The appeal shall not stay the
award, judgment, final order or resolution sought to be
reviewed unless the Court of Appeals shall direct otherwise
upon such terms as it may deem just. (10a)
Section 13. Submission for decision. - If the petition is given
due course, the Court of Appeals may set the case for oral
argument or require the parties to submit memoranda within
a period of fifteen (15) days from notice. The case shall be
deemed submitted for decision upon the filing of the last
pleading or memorandum required by these Rules or by the
Court of Appeals. (n)
cc. Petition for Review on Certiorari – Rule 45 of the
Rules of Court
RULE 45
APPEAL BY CERTIORARI TO THE SUPREME COURT
Section 1. Filing of petition with Supreme Court. - A party
desiring to appeal by certiorari from a judgment, final order
or resolution of the Court of Appeals, the Sandiganbayan,
the Court of Tax Appeals, the Regional Trial Court or other
courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari.
The petition may include an application for a writ of
preliminary injunction or other provisional remedies and shall
raise only questions of law which must be distinctly set forth.
The petitioner may seek the same provisional remedies by
verified motion filed in the same action or proceeding at any
time during its pendency. (As amended by A.M No. 07-7-12-
SC, December 12, 2007.)
Section 2. Time for filing; extension. - The petition shall be
filed within fifteen (15) days from notice of the judgment or
final order or resolution appealed from, or of the denial of the
petitioners motion for new trial or reconsideration filed in due
time after notice of the judgment. On motion duly filed and
served, with full payment of the dock et and other lawful fees
and the deposit for costs before the expiration of the
reglementary period, the Supreme Court may for justifiable
reasons grant an extension of thirty (30) days only within
which to file the petition. (1a, 5a)
Section 3. Docket and other lawful fees; proof of service of
petition. - Unless he has theretofore done so, the petitioner
shall pay the corresponding dock et and other lawful fees to
the clerk of court of the Supreme Court and deposit the
amount ofP500.00 for costs at the time of the filing of the
petition. Proof of service of a copy thereof on the lower court
concerned and on the adverse party shall be submitted
together with the petition. (1a)
Section 4. Contents of petition. - The petition shall be filed in
eighteen (18) copies, with the original copy intended for the
court being indicated as such by the petitioner, and shall (a)
state the full name of the appealing party as the petitioner
and the adverse party as respondent, without impleading the
lower courts or judges thereof either as petitioners or
respondents; (b) indicate the material dates showing when
notice of the judgment or final order or resolution subject
thereof was received, when a motion for new trial or
reconsideration, if any, was filed and when notice of the
denial thereof was received; (c) set forth concisely a
statement of the matters involved, and the reasons or
arguments relied on for the allowance of the petition; (d) be
accompanied by a clearly legible duplicate original, or a
certified true copy of the judgment or final order or resolution
certified by the clerk of court of the court a quo and the
requisite number of plain copies thereof, and such material
portions of the record as would support the petition; and (e)
contain a sworn certification against forum shopping as
provided in the last paragraph of section 2, Rule 42. (2a)
Section 5. Dismissal or denial of petition. - The failure of the
petitioner to comply with any of the foregoing requirements
regarding the payment of the dock et and other lawful fees,
deposit for costs, proof of service of the petition, and the
contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the
petition on the ground that the appeal is without merit, or is
prosecuted manifestly for delay, or that the questions raised
therein are too unsubstantial to require consideration. (3a)
Section 6. Review discretionary. - A review is not a matter of
right, but of sound judicial discretion, and will be granted only
when there are special and important reasons therefor. The
following, while neither controlling nor fully measuring the
courts discretion, indicate the character of the reasons which
will be considered:
(a) When the court a quo has decided a question of
substance, not theretofore determined by the Supreme
Court, or has decided it in a way probably not in accord with
law or with the applicable decisions of the Supreme Court; or
(b) When the court a quo has so far departed from the
accepted and usual course of judicial proceedings, or so far
sanctioned such departure by a lower court, as to call for an
exercise of the power of supervision. (4a)
Section 7. Pleadings and documents that may be required;
sanctions. - For purposes of determining whether the petition
should be dismissed or denied pursuant to section 5 of this
Rule, or where the petition is given due course under section
8 hereof, the Supreme Court may require or allow the filing
of such pleadings, briefs, memoranda or documents as it
may deem necessary within such periods and under such
conditions as it may consider appropriate, and impose the
corresponding sanctions in case of non-filing or unauthorized
filing of such pleadings and documents or non-compliance
with the conditions therefor. (n)
Section 8. Due course; elevation of records. - If the petition is
given due course, the Supreme Court may require the
elevation of the complete record of the case or specified
parts thereof within fifteen (15) days from notice. (2a)
Section 9. Rule applicable to both civil and criminal cases. -
The mode of appeal prescribed in this Rule shall be
applicable to both civil and criminal cases, except in criminal
cases where the penalty imposed is death, reclusion
perpetua or life imprisonment. (n)
dd. Petition for Certiorari, Prohibition or Mandamus –
Rule 65 of the Rules of Court
RULE 65
CERTIORARI, PROHIBITION AND MANDAMUS
Section 1. Petition for certiorari. - When any tribunal, board
or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting Section 5. Respondents and costs in certain cases. - When
such incidental reliefs as law and justice may require. the petition filed relates to the acts or omissions of a judge,
court, quasi-judicial agency, tribunal, corporation, board,
The petition shall be accompanied by a certified true copy of officer or person, the petitioner shall join, as private
the judgment, order or resolution subject thereof, copies of respondent or respondents with such public respondent or
all pleadings and documents relevant and pertinent thereto, respondents, the person or persons interested in sustaining
and a sworn certification of non-forum shopping as provided the proceedings in the court; and it shall be the duty of such
in the third paragraph of section 3, Rule 46. (1a) private respondents to appear and defend, both in his or
their own behalf and in behalf of the public respondent or
respondents affected by the proceedings, and the costs
Section 2. Petition for prohibition. - When the proceedings of awarded in such proceedings in favor of the petitioner shall
any tribunal, corporation, board, officer or person, whether be against the private respondents only, and not against the
exercising judicial, quasi-judicial or ministerial functions, are judge, court, quasi-judicial agency, tribunal, corporation,
without or in excess of its or his jurisdiction, or with grave board, officer or person impleaded as public respondent or
abuse of discretion amounting to lack or excess of respondents.
jurisdiction, and there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law,
Unless otherwise specifically directed by the court where the
a person aggrieved thereby may file a verified petition in the
petition is pending, the public respondents shall not appear
proper court, alleging the facts with certainty and praying that
in or file an answer or comment to the petition or any
judgment be rendered commanding the respondent to desist
pleading therein. If the case is elevated to a higher court by
from further proceedings in the action or matter specified
either party, the public respondents shall be included therein
therein, or otherwise granting such incidental reliefs as law
as nominal parties. However, unless otherwise specifically
and justice may require.
directed by the court, they shall not appear or participate in
the proceedings therein. (5a)
The petition shall likewise be accompanied by a certified true
copy of the judgment, order or resolution subject thereof,
Section 6. Order to comment. - If the petition is sufficient in
copies of all pleadings and documents relevant and pertinent
form and substance to justify such process, the court shall
thereto, and a sworn certification of non-forum shopping as
issue an order requiring the respondent or respondents to
provided in the third paragraph of section 3, Rule 46. (2a)
comment on the petition within ten (10) days from receipt of
a copy thereof. Such order shall be served on the
Section 3. Petition for mandamus. - When any tribunal, respondents in such manner as the court may direct,
corporation, board, officer or person unlawfully neglects the together with a copy of the petition and any annexes thereto.
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
In petitions for certiorari before the Supreme Court and the
excludes another from the use and enjoyment of a right or
Court of Appeals, the provisions of section 2, Rule 56, shall
office to which such other is entitled, and there is no other
be observed. Before giving due course thereto, the court
plain, speedy and adequate remedy in the ordinary course of
may require the respondents to file their comment to, and not
law, the person aggrieved thereby may file a verified petition
a motion to dismiss, the petition. Thereafter, the court may
in the proper court, alleging the facts with certainty and
require the filing of a reply and such other responsive or
praying that judgment be rendered commanding the
other pleadings as it may deem necessary and proper. (6a)
respondent, immediately or at some other time to be
specified by the court, to do the act required to be done to
protect the rights of the petitioner, and to pay the damages Section 7. Expediting proceedings; injunctive relief - The
sustained by the petitioner by reason of the wrongful acts of court in which the petition is filed may issue orders
the respondent. expediting the proceedings, and it may also grant a
temporary restraining order or a writ of preliminary injunction
for the preservation of the rights of the parties pending such
The petition shall also contain a sworn certification of non-
proceedings. The petition shall not interrupt the course of the
forum shopping as provided in the third paragraph of section
principal case, unless a temporary restraining order or a writ
3, Rule 46. (3a)
of preliminary injunction has been issued, enjoining the
public respondent from further proceeding in the case. (7a)
Section 4. When and where to file the petition. - The petition
shall be filed not later than sixty (60) days from notice of the
The public respondent shall proceed with the principal case
judgment, order or resolution. In case a motion for
within ten (10) days from the filing of a petition for certiorari
reconsideration or new trial is timely filed, whether such
with a higher court or tribunal, absent a temporary restraining
motion is required or not, the petition shall be filed not later
order or a preliminary injunction, or upon its expiration.
than sixty (60) days counted from the notice of the denial of
Failure of the public respondent to proceed with the principal
the motion.
case may be a ground for an administrative charge. (As
amended by A.M No. 07-7-12-SC, December 12, 2007.)
If the petition relates to an act or an omission of a municipal
trial court or of a corporation, a board, an officer or a person,
Section 8. Proceedings after comment is filed. - After the
it shall be filed with the Regional Trial Court exercising
comment or other pleadings required by the court are filed,
jurisdiction over the territorial area as defined by the
or the time for the filing thereof has expired, the court may
Supreme Court. It may also be filed with the Court of
hear the case or require the parties to submit memoranda. If,
Appeals or with the Sandiganbayan, whether or not the
after such hearing or filing of memoranda or upon the
same is in aid of the courts appellate jurisdiction. If the
expiration of the period for filing, the court finds that the
petition involves an act or an omission of a quasi-judicial
allegations of the petition are true, it shall render judgment
agency, unless otherwise provided by law or these rules, the
for such relief to which the petitioner is entitled.
petition shall be filed with and be cognizable only by the
Court of Appeals.
However, the court may dismiss the petition if it finds the
same patently without merit or prosecuted manifestly for
In election cases involving an act or an omission of a
delay, or if the questions raised therein are too unsubstantial
municipal or a regional trial court, the petition shall be filed
to require consideration. In such event, the court may award
exclusively with the Commission on Elections, in aid of its
in favor of the respondent treble costs solidarily against the
appellate jurisdiction. (As amended by A.M No. 07-7-12-SC,
petitioner and counsel, in addition to subjecting counsel to
December 12, 2007.)
administrative sanctions under Rules 139 and 139-B of the
Rules of Court.
The Court may impose motu proprio, based on res ipsa
loquitur, other disciplinary sanctions or measures on erring
lawyers for patently dilatory and unmeritorious petitions for
certiorari. (As amended by A.M No. 07-7-12-SC,
December 12, 2007.)
Section 9. Service and enforcement of order or judgment. - A
certified copy of the judgment rendered in accordance with
the last preceding section shall be served upon the court,
quasi-judicial agency, tribunal, corporation, board, officer or
person concerned in such manner as the court may direct,
and disobedience thereto shall be punished as contempt. An
execution may issue for any damages or costs awarded in
accordance with section 1 of Rule 39. (9a)
ee. Petition for Letters of Administration – Rule 78 of
the Rules of Court
RULE 78
Letters Testamentary and of Administration, When and
to Whom Issued
Section 1. Who are incompetent to serve as executors or
administrators. — No person in competent to serve as
executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of
the trust by reason of drunkenness, improvidence, or want of
understanding or integrity, or by reason of conviction of an
offense involving moral turpitude.
Section 2. Executor of executor not to administer estate. —
The executor of an executor shall not, as such, administer
the estate of the first testator.
Section 3. Married women may serve. — A married woman
may serve as executrix or administratrix, and the marriage of
a single woman shall not affect her authority so to serve
under a previous appointment.
Section 4. Letters testamentary issued when will allowed. —
When a will has been proved and allowed, the court shall
issue letters testamentary thereon to the person named as
executor therein, if he is competent, accepts the trust, and
gives bond as required by these rules.
Section 5. Where some coexecutors disqualified others may
act. — When all of the executors named in a will can not act
because of incompetency, refusal to accept the trust, or
failure to give bond, on the part of one or more of them,
letters testamentary may issue to such of them as are
competent, accept and give bond, and they may perform the
duties and discharge the trust required by the will.
Section 6. When and to whom letters of administration
granted. — If no executor is named in the will, or the
executor or executors are incompetent, refuse the trust, or
fail to give bond, or a person dies intestate, administration
shall be granted:
(a) To the surviving husband or wife, as the case may be, or
next of kin, or both, in the discretion of the court, or to such
person as such surviving husband or wife, or next of kin,
requests to have appointed, if competent and willing to
serve;
(b) If such surviving husband or wife, as the case may be, or
next of kin, or the person selected by them, be incompetent
or unwilling, or if the husband or widow, or next of kin,
neglects for thirty (30) days after the death of the person to
apply for administration or to request that administration be
granted to some other person, it may be granted to one or
more of the principal creditors, if may be granted to one or
more of the principal creditors, if competent and willing to
serve;
(c) If there is no such creditor competent and willing to serve,
it may be granted to such other person as the court may
select.
ff. Petition for the Appointment of Guardians – Rule
93 of the Rules of Court
RULE 93
Appointment of Guardians
Section 1. Who may petition for appointment of guardian for
resident. — Any relative, friend, or other person on behalf of
a resident minor or incompetent who has no parent or lawful
guardian, or the minor himself if fourteen years of age or
over, may petition the court having jurisdiction for the
appointment of a general guardian for the person or estate,
or both, of such minor or incompetent. An officer of the
Federal Administration of the United States in the Philippines
may also file a petition in favor of a ward thereof, and the
Director of Health, in favor of an insane person who should
be hospitalized, or in favor of an isolated leper.
Section 2. Contents of petition. — A petition for the
appointment of a general guardian must show, so far as
known to the petitioner:
(a) The jurisdiction facts;
(b) The minority or incompetency rendering the appointment
necessary or convenient;
(c) The names, ages, and residence of the relatives of the
minor or incompetent, and of the person having him in their
care;
(d) The probable value and character of his estate;
(e) The name of the person for whom letters of guardianship.
The petition shall be verified; but no defect in the petition or
verification shall render void the issuance of letters of
guardianship.
Section 3. Court to set time for hearing. Notice thereof. —
When a petition for the appointment of a general guardian is
filed, the court shall fix a time and place for hearing the
same, and shall cause reasonable notice thereof to be given
to the persons mentioned in the petition residing in the
province, including the minor if above 14 years of age or the
incompetent himself, and may direct other general or special
notice thereof to be given.
Section 4. Opposition to petition. — Any interested person
may, by filing a written opposition, contest the petition on the
ground of majority of the alleged minor, competency of the
alleged incompetent, or the insuitability of the person for
whom letters are prayed, and may pray that the petition be
dismissed, or that letters of guardianship issue to himself, or
to any suitable person named in the opposition.
Section 5. Hearing and order for letters to issue. — At the
hearing of the petition the alleged in competent must be
present if able to attend, and it must be shown that the
required notice has been given. Thereupon the courts shall
hear the evidence of the parties in support of their respective
allegations, and, if the person in question is a minor, or
incompetent it shall be appoint a suitable guardian of his
person or estate, or both, with the powers and duties
hereinafter specified.
Section 6. When and how guardian for non-resident
appointed. Notice. — When a person liable to be put under
guardianship resides without the Philippines but the estate
therein, any relative or friend of such person, or any one
interested in his estate, in expectancy or otherwise, may
petition a court having jurisdiction for the appointment of a
guardian for the estate, and if, after notice given to such
person and in such manner as the court deems proper, by
publication or otherwise, and hearing, the court is satisfied
that such non-resident is a minor or incompetent rendering a
guardian necessary or convenient, it may appoint a guardian
for such estate.
Section 7. Parents as guardians. — When the property of
the child under parental authority is worth two thousand
pesos or less, the father of the mother, without the necessity
of court appointment, shall be his legal guardian. When the
property of the child is worth more than two thousand pesos,
the father or the mother shall be considered guardian of the
child's property, with the duties and obligations of guardians
under this rules, and shall file the petition required by section
2 hereof. For good reasons the court may, however, appoint
another suitable person.
Section 8. Service of judgment. — Final orders or judgments
under this rule shall be served upon the civil registrar of the
municipality or city where the minor or incompetent person
resides or where his property or part thereof is situated.
gg. Complaint-Affidavit – Rules 110 and 112 of the
Rules of Court
RULE 110
Prosecution of Offenses
Section 1. Institution of criminal actions. — Criminal actions
shall be instituted as follows:
(a) For offenses where a preliminary investigation is required
pursuant to section 1 of Rule 112, by filing the complaint with
the proper officer for the purpose of conducting the requisite
preliminary investigation.
(b) For all other offenses, by filing the complaint or
information directly with the Municipal Trial Courts and
Municipal Circuit Trial Courts, or the complaint with the office
of the prosecutor. In Manila and other chartered cities, the
complaint shall be filed with the office of the prosecutor
unless otherwise provided in their charters.
The institution of the criminal action shall interrupt the
running period of prescription of the offense charged unless
otherwise provided in special laws. (1a)
Section 2. The Complaint or information. — The complaint
or information shall be in writing, in the name of the People
of the Philippines and against all persons who appear to be
responsible for the offense involved. (2a)
Section 3. Complaint defined. — A complaint is a sworn
written statement charging a person with an offense,
subscribed by the offended party, any peace officer, or other
public officer charged with the enforcement of the law
violated. (3)
Section 4. Information defined. — An information is an
accusation in writing charging a person with an offense,
subscribed by the prosecutor and filed with the court. (4a)
Section 5. Who must prosecute criminal actions. — All
criminal actions commenced by a complaint or information
shall be prosecuted under the direction and control of the
prosecutor. However, in Municipal Trial Courts or Municipal
Circuit Trial Courts when the prosecutor assigned thereto or
to the case is not available, the offended party, any peace
officer, or public officer charged with the enforcement of the
law violated may prosecute the case. This authority cease
upon actual intervention of the prosecutor or upon elevation
(This Section was repealed
of the case to the Regional Trial Court.
by A.M. No. 02-2-07-SC effective May 1, 2002)
The crimes of adultery and concubinage shall not be
prosecuted except upon a complaint filed by the offended
spouse. The offended party cannot institute criminal
prosecution without including the guilty parties, if both alive,
nor, in any case, if the offended party has consented to the
offense or pardoned the offenders.
The offenses of seduction, abduction and acts of
lasciviousness shall not be prosecuted except upon a
complaint filed by the offended party or her parents,
grandparents or guardian, nor, in any case, if the offender
has been expressly pardoned by any of them. If the offended
party dies or becomes incapacitated before she can file the
complaint, and she has no known parents, grandparents or
guardian, the State shall initiate the criminal action in her
behalf.
The offended party, even if a minor, has the right to initiate
the prosecution of the offenses of seduction, abduction and
acts of lasciviousness independently of her parents,
grandparents, or guardian, unless she is incompetent or
incapable of doing so. Where the offended party, who is a
minor, fails to file the complaint, her parents, grandparents,
or guardian may file the same. The right to file the action
granted to parents, grandparents or guardian shall be
exclusive of all other persons and shall be exercised
successively in the order herein provided, except as stated in
the preceding paragraph.
No criminal action for defamation which consists in the
imputation of the offenses mentioned above shall be brought
except at the instance of and upon complaint filed by the
offended party. (5a)
The prosecution for violation of special laws shall be
governed by the provisions thereof. (n)
Section 6. Sufficiency of complaint or information. — A
complaint or information is sufficient if it states the name of
the accused; the designation of the offense given by the
statute; the acts or omissions complained of as constituting
the offense; the name of the offended party; the approximate
date of the commission of the offense; and the place where
the offense was committed.
When an offense is committed by more than one person, all
of them shall be included in the complaint or information.
(6a)
Section 7. Name of the accused. — The complaint or
information must state the name and surname of the
accused or any appellation or nickname by which he has
been or is known. If his name cannot be ascertained, he
must be described under a fictitious name with a statement
that his true name is unknown.
If the true name of the accused is thereafter disclosed by him
or appears in some other manner to the court, such true
name shall be inserted in the complaint or information and
record. (7a)
Section 8. Designation of the offense. — The complaint or
information shall state the designation of the offense given
by the statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense,
reference shall be made to the section or subsection of the
statute punishing it. (8a)
Section 9. Cause of the accusation. — The acts or
omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in
ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable
a person of common understanding to know what offense is
being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment. (9a)
Section 10. Place of commission of the offense. — The
complaint or information is sufficient if it can be understood
from its allegations that the offense was committed or some
of the essential ingredients occurred at some place within
the jurisdiction of the court, unless the particular place where
it was committed constitutes an essential element of the
offense or is necessary for its identification. (10a)
Section 11. Date of commission of the offense. — It is not
necessary to state in the complaint or information the precise
date the offense was committed except when it is a material
ingredient of the offense. The offense may be alleged to
have been committed on a date as near as possible to the
actual date of its commission. (11a)
Section 12. Name of the offended party. — The complaint or
information must state the name and surname of the person
against whom or against whose property the offense was
committed, or any appellation or nickname by which such
person has been or is known. If there is no better way of
identifying him, he must be described under a fictitious
name.
(a) In offenses against property, if the name of the offended
party is unknown, the property must be described with such
particularity as to properly identify the offense charged.
(b) If the true name of the of the person against whom or
against whose properly the offense was committed is
thereafter disclosed or ascertained, the court must cause the
true name to be inserted in the complaint or information and
the record.
(c) If the offended party is a juridical person, it is sufficient
state its name, or any name or designation by which it
known or by which it may be identified, without need
averring that it is a juridical person or that it is organized
accordance with law. (12a)
Section 13. Duplicity of the offense. — A complaint or
information must charge but one offense, except when the
law prescribes a single punishment for various offenses.
(13a)
Section 14. Amendment or substitution. — A complaint or
information may be amended, in form or in substance,
without leave of court, at any time before the accused enters
his plea. After the plea and during the trial, a formal
amendment may only be made with leave of court and when
it can be done without causing prejudice to the rights of the
accused.
However, any amendment before plea, which downgrades
the nature of the offense charged in or excludes any
accused from the complaint or information, can be made
only upon motion by the prosecutor, with notice to the
offended party and with leave of court. The court shall state
its reasons in resolving the motion and copies of its order
shall be furnished all parties, especially the offended party.
(n)
If it appears at any time before judgment that a mistake has
been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing
of a new one charging the proper offense in accordance with
section 19, Rule 119, provided the accused shall not be
placed in double jeopardy. The court may require the
witnesses to give bail for their appearance at the trial. (14a)
Section 15. Place where action is to be instituted. —
(a) Subject to existing laws, the criminal action shall be
instituted and tried in the court of the municipality or territory
where the offense was committed or where any of its
essential ingredients occurred.
(b) Where an offense is committed in a train, aircraft, or other
public or private vehicle while in the course of its trip, the
criminal action shall be instituted and tried in the court of any
municipality or territory where such train, aircraft or other
vehicle passed during such its trip, including the place of its
departure and arrival.
(c) Where an offense is committed on board a vessel in the
course of its voyage, the criminal action shall be instituted
and tried in the court of the first port of entry or of any
municipality or territory where the vessel passed during such
voyage, subject to the generally accepted principles of
international law.
(d) Crimes committed outside the Philippines but punishable
under Article 2 of the Revised Penal Code shall be
cognizable by the court where the criminal action is first filed.
(15a)
Section 16. Intervention of the offended party in criminal
action. — Where the civil action for recovery of civil liability is
instituted in the criminal action pursuant to Rule 111, the
offended party may intervene by counsel in the prosecution
of the offense. (16a)
RULE 112
Preliminary Investigation
to
is Section 1. Preliminary investigation defined; when required.
of — Preliminary investigation is an inquiry or proceeding to
in determine whether there is sufficient ground to engender a
well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for
trial.
Except as provided in section 7 of this Rule, a preliminary
investigation is required to be conducted before the filing of a
complaint or information for an offense where the penalty
prescribed by law is at least four (4) years, two (2) months
and one (1) day without regard to the fine. (1a)
Section 2. Officers authorized to conduct preliminary
investigations. —
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit
Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall
include all crimes cognizable by the proper court in their
respective territorial jurisdictions. (2a)
Section 3. Procedure. — The preliminary investigation shall
be conducted in the following manner:
(a) The complaint shall state the address of the respondent
and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting
documents to establish probable cause. They shall be in
such number of copies as there are respondents, plus two
(2) copies for the official file. The affidavits shall be
subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their
absence or unavailability, before a notary public, each of
who must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss it if he finds no
ground to continue with the investigation, or issue a
subpoena to the respondent attaching to it a copy of the
complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence
submitted by the complainant which he may not have been
furnished and to copy them at his expense. If the evidence is
voluminous, the complainant may be required to specify
those which he intends to present against the respondent,
and these shall be made available for examination or
copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall
be made available for examination, copying, or
photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with
the complaint and supporting affidavits and documents, the
respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for
his defense. The counter-affidavits shall be subscribed and
sworn to and certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to the
complainant. The respondent shall not be allowed to file a
motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if
subpoenaed, does not submit counter-affidavits within the
ten (10) day period, the investigating officer shall resolve the
complaint based on the evidence presented by the
complainant.
(e) The investigating officer may set a hearing if there are
facts and issues to be clarified from a party or a witness. The
parties can be present at the hearing but without the right to
examine or cross-examine. They may, however, submit to
the investigating officer questions which may be asked to the
party or witness concerned.
The hearing shall be held within ten (10) days from
submission of the counter-affidavits and other documents or
from the expiration of the period for their submission. It shall
be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the
investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial. (3a)
Section 4. Resolution of investigating prosecutor and its
review. — If the investigating prosecutor finds cause to hold
the respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information that
he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof;
that the accused was informed of the complaint and of the
evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he
shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief
state prosecutor, or to the Ombudsman or his deputy in
cases of offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and
shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the
dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground
that a probable cause exists, the latter may, by himself, file
the information against the respondent, or direct any other
assistant prosecutor or state prosecutor to do so without
conducting another preliminary investigation.
If upon petition by a proper party under such rules as the
Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of
the provincial or city prosecutor or chief state prosecutor, he
shall direct the prosecutor concerned either to file the
corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal
of the complaint or information with notice to the parties. The
same rule shall apply in preliminary investigations conducted
by the officers of the Office of the Ombudsman. (4a)
Section 5. Resolution of investigating judge and its review.
— Within ten (10) days after the preliminary
investigation, the investigating judge shall transmit the
resolution of the case to the provincial or city prosecutor, or
to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its
original jurisdiction, for appropriate action. The resolution
shall state the findings of facts and the law supporting his
action, together with the record of the case which shall
include: (a) the warrant, if the arrest is by virtue of a
warrant; (b) the affidavits, counter-affidavits and other
supporting evidence of the parties; (c) the undertaking or bail
of the accused and the order for his release; (d) the
transcripts of the proceedings during the preliminary
investigation; and (e) the order of cancellation of his bail
bond, if the resolution is for the dismissal of the complaint.
Within thirty (30) days from receipt of the records, the
provincial or city prosecutor, or the Ombudsman or his
deputy, as the case may be, shall review the resolution of
the investigating judge on the existence of probable cause.
Their ruling shall expressly and clearly state the facts and
the law on which it is based and the parties shall be
furnished with copies thereof. They shall order the release of
an accused who is detained if no probable cause is found
against him. (5a)
Section 6. When warrant of arrest may issue. — (a) By the
Regional Trial Court. — Within ten (10) days from the filing of
the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the
evidence on record clearly fails to establish probable cause.
If he finds probable cause, he shall issue a warrant of arrest,
or a commitment order if the accused has already been
arrested pursuant to a warrant issued by the judge who
conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 7 of
this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice and the
issue must be resolved by the court within thirty (30) days
from the filing of the complaint of information.
(b) By the Municipal Trial Court. — When required pursuant
to the second paragraph of section 1 of this Rule, the
preliminary investigation of cases falling under the original
jurisdiction of the Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court, or Municipal Circuit
Trial Court may be conducted by either the judge or the
prosecutor. When conducted by the prosecutor, the
procedure for the issuance of a warrant or arrest by the
judge shall be governed by paragraph (a) of this
section. When the investigation is conducted by the judge
himself, he shall follow the procedure provided in section 3 of
this Rule. If the findings and recommendations are affirmed
by the provincial or city prosecutor, or by the Ombudsman or
his deputy, and the corresponding information is filed, he
shall issue a warrant of arrest. However, without waiting for
the conclusion of the investigation, the judge may issue a
warrant of arrest if he finds after an examination in writing
and under oath of the complainant and his witnesses in the
form of searching question and answers, that a probable
cause exists and that there is a necessity of placing the
respondent under immediate custody in order not to frustrate
the ends of justice.
(c) When warrant of arrest not necessary. — A warrant of
arrest shall not issue if the accused is already under
detention pursuant to a warrant issued by the municipal trial
court in accordance with paragraph (b) of this section, or if
the complaint or information was filed pursuant to section 7
of this Rule or is for an offense penalized by fine only. The
court shall then proceed in the exercise of its original
jurisdiction. (6a)
Section 7. When accused lawfully arrested without warrant.
— When a person is lawfully arrested without a warrant
involving an offense which requires a preliminary
investigation, the complaint or information may be filed by a
prosecutor without need of such investigation provided an
inquest has been conducted in accordance with existing
rules. In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the offended party
or a peace office directly with the proper court on the basis of
the affidavit of the offended party or arresting officer or
person.
Before the complaint or information is filed, the person
arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the
provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding
the waiver, he may apply for bail and the investigation must
be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without
a preliminary investigation, the accused may, within five (5)
days from the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his
defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438)
Section 8. Records. — (a) Records supporting the
information or complaint. — An information or complaint filed
in court shall be supported by the affidavits and counter-
affidavits of the parties and their witnesses, together with the
other supporting evidence and the resolution on the case.
(b) Record of preliminary investigation. — The record of the
preliminary investigation, whether conducted by a judge or a
fiscal, shall not form part of the record of the case. However,
the court, on its own initiative or on motion of any party, may
order the production of the record or any its part when
necessary in the resolution of the case or any incident
therein, or when it is to be introduced as an evidence in the
case by the requesting party. (8a)
Section 9. Cases not requiring a preliminary investigation
nor covered by the Rule on Summary Procedure. —
(a) If filed with the prosecutor. — If the complaint is filed
directly with the prosecutor involving an offense punishable
by imprisonment of less four (4) years, two (2) months and
one (1) day, the procedure outlined in section 3(a) of this
Rule shall be observed. The prosecutor shall act on the
complaint based on the affidavits and other supporting
documents submitted by the complainant within ten (10)
days from its filing.
(b) If filed with the Municipal Trial Court. — If the complaint
or information is filed directly with the Municipal Trial Court or
Municipal Circuit Trial Court for an offense covered by this
section, the procedure in section 3(a) of this Rule shall be
observed. If within ten (10) days after the filing of the
complaint or information, the judge finds no probable cause
after personally evaluating the evidence, or after personally
examining in writing and under oath the complainant and his
witnesses in the form of searching question and answers, he
shall dismiss the same. He may, however, require the
submission of additional evidence, within ten (10) days from
notice, to determine further the existence of probable cause.
If the judge still finds no probable cause despite the
additional evidence, he shall, within ten (10) days from its
submission or expiration of said period, dismiss the
case. When he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the accused had
already been arrested, and hold him for trial. However, if the
judge is satisfied that there is no necessity for placing the
accused under custody, he may issue summons instead of a
warrant of arrest. (9a)
hh. Petition for Review – DOJ Circular No. 70, July 3,
2000, 2000 NPS Rules on Appeal
DEPARTMENT CIRCULAR NO. 70
 SUBJECT: 2000 NPS RULE ON APPEAL
July 3, 2000
In the interest of expeditious and efficient administration of
justice and in line with recent jurisprudence, the following
Rule governing appeals from resolutions of prosecutors in
the National Prosecution Service, to be known as the 2000
NPS Rule on Appeal, is hereby adopted.
SECTION 1. Scope. - This Rule shall apply to appeals from
resolutions of the Chief State Prosecutor, Regional State
Prosecutors and Provincial/City Prosecutors in cases subject
of preliminary investigation/ reinvestigation.
SECTION 2. Where to appeal. An appeal may be brought to
the Secretary of Justice within the period and in the manner
herein provided.
SECTION 3. Period to appeal. The appeal shall be taken
within fifteen (15) days from receipt of the resolution, or of
the denial of the motion for reconsideration/reinvestigation if
one has been filed within fifteen (15) days from receipt of the
assailed resolution. Only one motion for reconsideration shall
be allowed.
SECTION 4. How appeal taken. An aggrieved party may
appeal by filing a verified petition for review with the Office of
the Secretary, Department of Justice, and by furnishing
copies thereof to the adverse party and the Prosecution
Office issuing the appealed resolution.
SECTION 5. Contents of petition. - The petition shall contain
or state: (a) the names and addresses of the parties; (b) the
Investigation Slip number (I.S. No.) and criminal case
number, if any, and title of the case, including the offense
charged in the complaint; (c) the venue of the preliminary
investigation; (d) the specific material dates showing that it
was filed on time; (e) a clear and concise statement of the
facts, the assignment of errors, and the reasons or
arguments relied upon for the allowance of the appeal; and
(f) proof of service of a copy of the petition to the adverse
party and the Prosecution Office concerned.
The petition shall be accompanied by legible duplicate
original or certified true copy of the resolution appealed from
together with legible true copies of the complaint,
affidavits/sworn statements and other evidence submitted by
the parties during the preliminary investigation/
reinvestigation.
If an information has been filed in court pursuant to the
appealed resolution, a copy of the motion to defer
proceedings filed in court must also accompany the petition.
The investigating/reviewing/approving prosecutor shall NOT
be impleaded as party respondent in the petition. The party
taking the appeal shall be referred to in the petition as either
"Complainant-Appellant" or "Respondent- Appellant".
SECTION 6. Effect of failure to comply with requirements.
The failure of the petitioner to comply with any of the
foregoing requirements shall constitute sufficient ground for
the dismissal of the petition.
SECTION 7. Action on the petition. The Secretary of Justice
may dismiss the petition outright if he finds the same to be
patently without merit or manifestly intended for delay, or
when the issues raised therein are too unsubstantial to
require consideration. If an information has been filed in
court pursuant to the appealed resolution, the petition shall
NOT be given due course if the accused had already been
arraigned. Any arraignment made after the filing of the
petition shall NOT bar the Secretary of Justice from
exercising his power of review.
SECTION 8. Comment. Within a non-extendible period of
fifteen (15) days from receipt of a copy of the petition, the
adverse party may file a verified comment, indicating therein
the date of such receipt and submitting proof of service of his
comment to the petitioner and the Prosecution Office
concerned. Except when directed by the Secretary of
Justice, the investigating/reviewing/approving prosecutor
need not submit any comment.
If no comment is filed within the prescribed period, the
appeal shall be resolved on the basis of the petition.
SECTION 9. Effect of the appeal. Unless the Secretary of
Justice directs otherwise, the appeal shall NOT hold the filing
of the corresponding information in court on the basis of the
finding of probable cause in the appealed resolution.
The appellant and the trial prosecutor shall see to it that,
pending resolution of the appeal, the proceedings in court
are held in abeyance.
SECTION 10. Withdrawal of appeal. Notwithstanding the
perfection of the appeal, the petitioner may withdraw the
same at any time before it is finally resolved, in which case
the appealed resolution shall stand as though no appeal has
been taken.
SECTION 11. Reinvestigation. If the Secretary of Justice
finds it necessary to reinvestigate the case, the
reinvestigation shall be held by the investigating prosecutor,
unless, for compelling reasons, another prosecutor is
designated to conduct the same.
SECTION 12. Disposition of the appeal. The Secretary may
reverse, affirm or modify the appealed resolution. He may,
motu proprio or upon motion, dismiss the petition for review
on any of the following grounds:
• That the petition was filed beyond the period
prescribed in Section 3 hereof;
• That the procedure or any of the requirements
herein provided has not been complied with;
• That there is no showing of any reversible error;
• That the appealed resolution is interlocutory in
nature, except when it suspends the proceedings
based on the alleged existence of a prejudicial
question;
• That the accused had already been arraigned
when the appeal was taken;
• That the offense has already prescribed; and
• That other legal or factual grounds exist to warrant
a dismissal.
SECTION 13. Motion for reconsideration. The aggrieved
party may file a motion for reconsideration within a non-
extendible period of ten (10) days from receipt of the
resolution on appeal, furnishing the adverse party and the
Prosecution Office concerned with copies thereof and
submitting proof of such service. No second or further motion
for reconsideration shall be entertained.
SECTION 14. Repealing clause. This Circular supersedes
Department Order No. 223 dated June 30, 1993 and all other
Department issuances inconsistent herewith.
SECTION 15. Effectivity. This Circular shall be published
once in two (2) newspapers of general circulation, after
which it shall take effect on September 1, 2000.
ii. Comment – DOJ Circular No. 70, July 3,
2000, 2000 NPS Rules on Appeal
jj. Counter-Affidavit – Rule 112 of the Rules of Court
kk. Affidavit of Desistance
ll. Information – Rules 110 and 117 of the Rules of
Court; DOJ Circular No. 61, September 21,
1993, New Rules on Inquest
RULE 117
 Motion to Quash
Section 1. Time to move to quash. — At any time before
entering his plea, the accused may move to quash the
complaint or information. (1)
Section 2. Form and contents. — The motion to quash shall
be in writing, signed by the accused or his counsel and shall
distinctly specify its factual and legal grounds. The court
shall consider no ground other than those stated in the
motion, except lack of jurisdiction over the offense charged.
(2a)
Section 3. Grounds. — The accused may move to quash
the complaint or information on any of the following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the
offense charged;
(c) That the court trying the case has no jurisdiction over the
person of the accused;
(d) That the officer who filed the information had no authority
to do so;
(e) That it does not conform substantially to the prescribed
form;
(f) That more than one offense is charged except when a
single punishment for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute
a legal excuse or justification; and
(i) That the accused has been previously convicted or
acquitted of the offense charged, or the case against him
was dismissed or otherwise terminated without his express
consent. (3a)
Section 4. Amendment of the complaint or information. — If
the motion to quash is based on an alleged defect of the
complaint or information which can be cured by amendment,
the court shall order that an amendment be made. (4a)
If it is based on the ground that the facts charged do not
constitute an offense, the prosecution shall be given by the
court an opportunity to correct the defect by amendment.
The motion shall be granted if the prosecution fails to make
the amendment, or the complaint or information still suffers
from the same defect despite the amendment. (n)
Section 5. Effect of sustaining the motion to quash. — If the
motion to quash is sustained, the court may order that
another complaint or information be filed except as provided
in section 6 of this rule. If the order is made, the accused, if
in custody, shall not be discharged unless admitted to bail. If
no order is made or if having been made, no new information
is filed within the time specified in the order or within such
further time as the court may allow for good cause, the
accused, if in custody, shall be discharged unless he is also
in custody for another charge. (5a)
Section 6. Order sustaining the motion to quash not a bar to
another prosecution; exception. — An order sustaining the
motion to quash is not a bar to another prosecution for the
same offense unless the motion was based on the grounds
specified in section 3 (g) and (i) of this Rule. (6a)
Section 7. Former conviction or acquittal; double jeopardy.
— When an accused has been convicted or acquitted, or the
case against him dismissed or otherwise terminated without
his express consent by a court of competent jurisdiction,
upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and
after the accused had pleaded to the charge, the conviction
or acquittal of the accused or the dismissal of the case shall
be a bar to another prosecution for the offense charged, or
for any attempt to commit the same or frustration thereof, or
for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or
information.
However, the conviction of the accused shall not be a bar to
another prosecution for an offense which necessarily
includes the offense charged in the former complaint or
information under any of the following instances:
(a) the graver offense developed due to supervening facts
arising from the same act or omission constituting the former
charge;
(b) the facts constituting the graver charge became known or
were discovered only after a plea was entered in the former
complaint or information; or
(c) the plea of guilty to the lesser offense was made without
the consent of the prosecutor and of the offended party
except as provided in section 1 (f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or
serves in whole or in part the judgment, he shall be credited
with the same in the event of conviction for the graver
offense. (7a)
Section 8. Provisional dismissal. — A case shall not be
provisionally dismissed except with the express consent of
the accused and with notice to the offended party.
The provisional dismissal of offenses punishable by
imprisonment not exceeding six (6) years or a fine of any
amount, or both, shall become permanent one (1) year after
issuance of the order without the case having been revived.
With respect to offenses punishable by imprisonment of
more than six (6) years, their provisional dismissal shall
become permanent two (2) years after issuance of the order
without the case having been revived. (n)
Section 9. Failure to move to quash or to allege any ground
therefor. — The failure of the accused to assert any ground
of a motion to quash before he pleads to the complaint or
information, either because he did not file a motion to quash
or failed to allege the same in said motion, shall be deemed
a waiver of any objections based on the grounds provided for
in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. (8)
Inquest Procedures (DOJ Circular No. 61, 1993)
Evidence Needed for an Inquest Proceedings
SECTION 1. Concept .—Inquest is an informal and summary
investigation con-ducted by a public prosecutor in criminal
cases involving persons arrested and detained without the
benefit of a warrant of arrest issued by the court for the
purpose of deter-mining whether or not said persons should
remain under custody and correspondingly be charged in
court.
SEC. 2. Designation of Inquest Officers.—The City or
Provincial Prosecutor shall designate the Prosecutors
assigned to inquest duties and shall furnish the Philippine
National Police (PNP) a list of their names and their
schedule of assignments. If, however, there is only one
Prosecutor in the area, all inquest cases shall be referred to
him for appropriate action. Unless otherwise directed by the
City or Provincial Prosecutor, those assigned to inquest
duties shall discharge their functions during the hours of their
designated assignments and only at the police
stations/headquarters of the PNP in order to expedite and
facilitate the disposition of inquest cases.
SEC. 3. Commencement and Termination of Inquest.—The
inquest proceedings shall be considered commenced upon
receipt by the Inquest Officer from the law enforcement
authorities of the complaint/referral documents which should
include:
a. the affidavit of arrest;
b. the investigation report;
c. the statement of the complainant and witnesses; and
d. other supporting evidence gathered by the police in the
course of the latter’s investigation of the criminal incident
involving the arrested or detained person. The inquest
Officer shall, as far as practicable, cause the affidavit of
arrest and statements/affidavits of the complainant and the
witnesses to be subscribed and sworn to before him by the
arresting officer and the affiants. The inquest proceedings
must be terminated within the period prescribed under the
provisions of Article 125 of the Revised Penal Code, as
amended. *
SEC. 4. Particular Documents Required in Specific Cases.—
The submission, presentation of the documents listed herein
below should as far as practicable, be required in the
following cases by the Inquest Officer.
Violation of the Anti-Fencing Law (PD 1612)
a. a list/inventory of the articles and items subject of the
offense; and
b. statement of their respective value
Illegal Possession of Explosives (PD 1866)
a. chemistry report duly signed by the forensic chemist and
b. photograph of the explosives, if readily available.
Violation of the Fisheries Law (PD 704)(now RA 8550)
a. photograph of the confiscated fish, if readily available; and
b. certification of the Bureau of Fisheries and Aquatic
Resources;
Violation of the Forestry Law (PD 705)
a. scale sheets containing the volume and species of the
forest products confiscated, number of pieces and other
important details such as estimated value of the products
confiscated;
b. certification of Department of Environment and Natural
Resources/Bureau of Forest Management; and
c. seizure receipt. The submission of the foregoing
documents shall no absolutely be required if there are other
forms of evidence submitted which will sufficiently establish
the facts sought to be proved by the foregoing documents.
SEC. 5. Incomplete documents.—When the documents
presented are not complete to establish probable cause, the
Inquest Officer shall direct the law enforcement agency to
submit the required evidence within the period prescribed
under the provisions of Article 125 of the Revised Penal
Code, as amended; otherwise, the Inquest Officer shall order
the release of the detained person and, where the inquest is
conducted outside of office hours, direct the law enforcement
agency concerned to file the case with the City or Provincial
Prosecutor for appropriate action.
SEC. 6. Presence of the detained person.—The presence of
the detained person who is under custody shall be ensured
during the proceedings. However, the production of the
detained person before the Inquest Officer may be
dispensed with in the following cases:
a. if he is confined in a hospital;
b. if he is detained in a place under maximum security;
c. if production of the detained person involve security risks;
or
d. if the presence of the detained person is not feasible by
reason of age, health, sex and other similar factors.
The absence of the detained person by reason of any of the
foregoing factors must be noted by the Inquest Officer and
reflected in the record of the case.
SEC. 7. Charges and counter-charges.—All charges and
counter-charges arising from the same incident shall, as far
as practicable, be consolidated and inquested jointly to avoid
contradictory or inconsistent dispositions.
SEC. 8. Initial duty of the inquest officer .—The Inquest
Officer must first deter-mine if the arrest of the detained
person was made in accordance with the provisions of
paragraphs (a) and (b) of Section 5, Rule 113 of the 1985
Rules on Criminal Procedure, as amended, which provide
that arrests without a warrant may be effected:
a. when, in the presence of the arresting officer, the person
to be arrested has committed, is actually committing, or is
attempting to commit an offense; or
b. when an offense has in fact just been committed, and the
arresting officer has personal knowledge of facts indicating
that the person to be arrested has committed it. For this
purpose, the Inquest Officer may summarily examine the
arresting officers on the circumstances surrounding the
arrest or apprehension of the detained per-son.
SEC. 9. Where arrest not properly effected.—Should the
Inquest Officer find that the arrest was not made in
accordance with the Rules, he shall:
a. recommend the release of the person arrested or
detained;
b. note down the disposition of the referral document;
c. prepare a brief memorandum indicating the reasons for
the action taken; and
d. forward the same, together with the record of the case, to
the City or Provincial Prosecutor for appropriate action.
Where the recommendation for the release of the detained
person is approved by the City or Provincial Prosecutor but
the evidence on hand warrant the conduct of a regular
preliminary investigation, the order of release shall be served
on the officer having custody of said detainee and shall
direct the said officer to serve upon the detainee the
subpoena or notice of preliminary investigation, together with
the copies of the charge sheet or complaint, affidavits or
sworn statements of the complainant and his witnesses and
other supporting evidence.
c. the place where the accused is actually detained;
d. the full names and addresses of the complainant and
witnesses;
e. a detailed description of the recovered item, if any;
f. the full name and address of the evidence custodian;
g. the age and date of birth of the complainant or the
accused, if eighteen (19) years of age or below; and
h. the full names and addresses of the parents, custodians
or guardians of the minor complainant or accused, as the
case may be.

SEC. 10. Where the arrest property effected.—Should the SEC. 15. Absence of probable cause.—If the Inquest Officer
Inquest Officer find that the arrest was properly effected, the finds no probable cause, he shall:
detained person should be asked if he desires to avail
himself of a preliminary investigation, if he does, he shall be
made to execute a waiver of the provisions of Article 125 of a. recommend the release of the arrested or detained
the Revised Penal Code, as amended, with the assistance of person;
a lawyer and, in case of non-availability of a lawyer, a
responsible person of his choice. The preliminary
b. note down his disposition on the referral document;
investigation may be conducted by the Inquest Officer
himself or by any other Assistant Prosecutor to whom the
case may be assigned by the City or Provincial Prosecutor, c. prepare a brief memorandum indicating the reasons for
which investigation shall be terminated within fifteen(15) the action taken; and
days from its inception.
d. forthwith forward the record of the case to the City or
SEC. 11. Inquest proper .—Where the detained person does Provincial Prosecutor for appropriate action.
not opt for a preliminary investigation or otherwise refuses to
execute the required waiver, the Inquest Officer shall
If the recommendation of the Inquest Officer for the release
proceed with the inquest by examining the sworn
of the arrested or detained person is approved, the order of
statements/affidavits of the complainant and the witnesses
release shall be served on the officer having custody of the
and other supporting evidence submitted to him. If
said detainee. Should the City or Provincial Prosecutor
necessary, the Inquest Officer may require the presence of
disapprove the recommendation of release, the arrested or
the complainant and witnesses and subject them to an
detained person shall remain under custody, and the
informal and summary investigation or examination for
correspond-ing complaint/information shall be filed by the
purposes of determining the existence of probable cause.
City or Provincial Prosecutor or by any Assistant Prosecutor
to whom the case may be assigned.
SEC. 12. Meaning of probable cause.—Probable cause
exists when the evidence submitted to the Inquest Officer
SEC. 16. Presence at the crime scene.—Whenever a dead
engenders a well-founded belief that a crime has been
body is found and there is reason to believe that the death
committed and that the arrested or detained person is
resulted from foul play, or from the unlawful acts or
probably guilty thereof.
omissions of other persons and such fact has been brought
to his attention, the Inquest Officer shall:
SEC. 13. Presence of probable cause.—If the Inquest Officer
finds that probable cause exists, he shall forthwith prepare
a. forthwith proceed to the crime scene or place of discovery
the corresponding complaint/information with the
of the dead person;
recommendation that the same be filed in court. The
complaint/information shall indicate the offense committed
and the amount of bail recommended, if bailable. Thereafter, b. cause an immediate autopsy to be conducted by the
the record of the case, together with the prepared com- appropriate medico-legal officer in the locality or the PNP
plaint/information, shall be forwarded to the City or Provincial medico-legal division or the NBI medico-legal office, as the
Prosecutor for appropriate action. The complaint/information case may be;
may be filed by the Inquest Officer himself or by any other
Assistant Prosecutor to whom the case may be assigned by
c. direct the police investigator to cause the taking of
the City or Provincial Prosecutor.
photographs of the crime scene or place of discovery of the
dead body;
SEC. 14. Contents of information.—The information shall,
among others, contain:
d. supervise the investigation to be conducted by the police
authorities as well as the recovery of all articles and pieces
a. a certification by the filing Prosecutor that he is filing the of evidence found thereat and see to it that the same are
same in accordance with the provisions of Section 7, Rule safeguarded and the chain of the custody thereof properly
112 of the 1985 Rules on Criminal Procedure, as amended, recorded; and
in cases cognizable by the Regional Trial Court;
e. submit a written report of his finding to the City or
b. the full name and alias, if any, and address of the Provincial Prosecutor for appropriate action.
accused;
SEC. 17. Sandiganbayan cases.—Should any complaint
cognizable by the Sandiganbayan be referred to an Inquest
Officer for investigation, the latter shall, after conducting the
corresponding inquest proceeding, forthwith forward the
complete record to the City or Provincial Prosecutor for
appropriate action
mm. Motion to Quash Information – Rules 110 and 117
of The Rules of Court
nn. Petition for Bail – Rule 114 of the Rules of Court
RULE 114
Bail
Section 1. Bail defined. — Bail is the security given for the
release of a person in custody of the law, furnished by him or
a bondsman, to guarantee his appearance before any court
as required under the conditions hereinafter specified. Bail
may be given in the form of corporate surety, property bond,
cash deposit, or recognizance. (1a)
Section 2. Conditions of the bail; requirements. — All kinds
of bail are subject to the following conditions:
(a) The undertaking shall be effective upon approval, and
unless cancelled, shall remain in force at all stages of the
case until promulgation of the judgment of the Regional Trial
Court, irrespective of whether the case was originally filed in
or appealed to it;
(b) The accused shall appear before the proper court
whenever required by the court of these Rules;
(c) The failure of the accused to appear at the trial without
justification and despite due notice shall be deemed a waiver
of his right to be present thereat. In such case, the trial may
proceed in absentia; and
(d) The bondsman shall surrender the accused to the court
for execution of the final judgment.
The original papers shall state the full name and address of
the accused, the amount of the undertaking and the
conditions herein required. Photographs (passport size)
taken within the last six (6) months showing the face, left and
right profiles of the accused must be attached to the bail.
(2a)
Section 3. No release or transfer except on court order or
bail. — No person under detention by legal process shall be
released or transferred except upon order of the court or
when he is admitted to bail. (3a)
Section 4. Bail, a matter of right; exception. — All persons in
custody shall be admitted to bail as a matter of right, with
sufficient sureties, or released on recognize as prescribed by
law or this Rule (a) before or after conviction by the
Metropolitan Trial Court, Municipal Trial Court, Municipal
Trial Court in Cities, or Municipal Circuit Trial Court, and (b)
before conviction by the Regional Trial Court of an offense
not punishable by death, reclusion perpetua, or life
imprisonment. (4a)
Section 5. Bail, when discretionary. — Upon conviction by
the Regional Trial Court of an offense not punishable by
death, reclusion perpetua, or life imprisonment, admission to
bail is discretionary. The application for bail may be filed and
acted upon by the trial court despite the filing of a notice of
appeal, provided it has not transmitted the original record to
the appellate court. However, if the decision of the trial court
convicting the accused changed the nature of the offense
from non-bailable to bailable, the application for bail can only
be filed with and resolved by the appellate court.
Should the court grant the application, the accused may be
allowed to continue on provisional liberty during the
pendency of the appeal under the same bail subject to the
consent of the bondsman.
If the penalty imposed by the trial court is imprisonment
exceeding six (6) years, the accused shall be denied bail, or
his bail shall be cancelled upon a showing by the
prosecution, with notice to the accused, of the following or
other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated by the
circumstance of reiteration;
(b) That he has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail
without valid justification;
(c) That he committed the offense while under probation,
parole, or conditional pardon;
(d) That the circumstances of his case indicate the
probability of flight if released on bail; or
(e) That there is undue risk that he may commit another
crime during the pendency of the appeal.
The appellate court may, motu proprio or on motion of any
party, review the resolution of the Regional Trial Court after
notice to the adverse party in either case. (5a)
Section 6. Capital offense defined. — A capital offense is an
offense which, under the law existing at the time of its
commission and of the application for admission to bail, may
be punished with death. (6a)
Section 7. Capital offense of an offense punishable by
reclusion perpetua or life imprisonment, not bailable. — No
person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, shall
be admitted to bail when evidence of guilt is strong,
regardless of the stage of the criminal prosecution. (7a)
Section 8. Burden of proof in bail application. — At the
hearing of an application for bail filed by a person who is in
custody for the commission of an offense punishable by
death, reclusion perpetua, or life imprisonment, the
prosecution has the burden of showing that evidence of guilt
is strong. The evidence presented during the bail hearing
shall be considered automatically reproduced at the trial, but
upon motion of either party, the court may recall any witness
for additional examination unless the latter is dead, outside
the Philippines, or otherwise unable to testify. (8a)
Section 9. Amount of bail; guidelines. — The judge who
issued the warrant or granted the application shall fix a
reasonable amount of bail considering primarily, but not
limited to, the following factors:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that accused was a fugitive from justice when
arrested; and
(j) Pendency of other cases where the accused is on bail.
Excessive bail shall not be required. (9a)
Section 10. Corporate surety. — Any domestic or foreign
corporation, licensed as a surety in accordance with law and
currently authorized to act as such, may provide bail by a
bond subscribed jointly by the accused and an officer of the
corporation duly authorized by its board of directors. (10a)
Section 11. Property bond, how posted. — A property bond
is an undertaking constituted as lien on the real property
given as security for the amount of the bail. Within ten (10)
days after the approval of the bond, the accused shall cause
the annotation of the lien on the certificate of title on file with
the Register of Deeds if the land is registered, or if
unregistered, in the Registration Book on the space provided
therefor, in the Registry of Deeds for the province or city
where the land lies, and on the corresponding tax declaration
in the office of the provincial, city and municipal assessor
concerned.
Within the same period, the accused shall submit to the court
his compliance and his failure to do so shall be sufficient
cause for the cancellation of the property bond and his re-
arrest and detention. (11a)
Section 12. Qualifications of sureties in property bond. —
The qualification of sureties in a property bond shall be as
follows:
(a) Each must be a resident owner of real estate within the
Philippines;
(b) Where there is only one surety, his real estate must be
worth at least the amount of the undertaking;
(c) If there are two or more sureties, each may justify in an
amount less than that expressed in the undertaking but the
aggregate of the justified sums must be equivalent to the
whole amount of bail demanded.
In all cases, every surety must be worth the amount
specified in his own undertaking over and above all just
debts, obligations and properties exempt from execution.
(12a)
Section 13. Justification of sureties. — Every surety shall
justify by affidavit taken before the judge that he possesses
the qualifications prescribed in the preceding section. He
shall describe the property given as security, stating the
nature of his title, its encumbrances, the number and amount
of other bails entered into by him and still undischarged, and
his other liabilities. The court may examine the sureties upon
oath concerning their sufficiency in such manner as it may
deem proper. No bail shall be approved unless the surety is
qualified. (13a)
Section 14. Deposit of cash as bail. — The accused or any
person acting in his behalf may deposit in cash with the
nearest collector or internal revenue or provincial, city, or
municipal treasurer the amount of bail fixed by the court, or
recommended by the prosecutor who investigated or filed
the case. Upon submission of a proper certificate of deposit
and a written undertaking showing compliance with the
requirements of section 2 of this Rule, the accused shall be
discharged from custody. The money deposited shall be
considered as bail and applied to the payment of fine and
costs while the excess, if any, shall be returned to the
accused or to whoever made the deposit. (14a)
Section 15. Recognizance. — Whenever allowed by law or
these Rules, the court may release a person in custody to
his own recognizance or that of a responsible person. (15a)
Section 16. Bail, when not required; reduced bail or
recognizance. — No bail shall be required when the law or
these Rules so provide.
When a person has been in custody for a period equal to or
more than the possible maximum imprisonment prescribe for
the offense charged, he shall be released immediately,
without prejudice to the continuation of the trial or the
proceedings on appeal. If the maximum penalty to which the
accused may be sentenced is destierro, he shall be released
after thirty (30) days of preventive imprisonment.
A person in custody for a period equal to or more than the
minimum of the principal penalty prescribed for the offense
charged, without application of the Indeterminate Sentence
Law or any modifying circumstance, shall be released on a
reduced bail or on his own recognizance, at the discretion of
the court. (16a)
Section 17. Bail, where filed. — (a) Bail in the amount fixed
may be filed with the court where the case is pending, or in
the absence or unavailability of the judge thereof, with any
regional trial judge, metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge in the province, city, or
municipality. If the accused is arrested in a province, city, or
municipality other than where the case is pending, bail may
also be filed with any regional trial court of said place, or if no
judge thereof is available, with any metropolitan trial judge,
municipal trial judge, or municipal circuit trial judge therein.
(b) Where the grant of bail is a matter of discretion, or the
accused seeks to be released on recognizance, the
application may only be filed in the court where the case is
pending, whether on preliminary investigation, trial, or on
appeal.
(c) Any person in custody who is not yet charged in court
may apply for bail with any court in the province, city, or
municipality where he is held. (17a)
Section 18. Notice of application to prosecutor. — In the
application for bail under section 8 of this Rule, the court
must give reasonable notice of the hearing to the prosecutor
or require him to submit his recommendation. (18a)
Section 19. Release on bail. — The accused must be
discharged upon approval of the bail by the judge with whom
it was filed in accordance with section 17 of this Rule.
Whenever bail is filed with a court other than where the case
is pending, the judge who accepted the bail shall forward it,
together with the order of release and other supporting
papers, to the court where the case is pending, which may,
for good reason, require a different one to be filed. (19a)
Section 20. Increase or reduction of bail. — After the
accused is admitted to bail, the court may, upon good cause,
either increase or reduce its amount. When increased, the
accused may be committed to custody if he does not give
bail in the increased amount within a reasonable period. An
accused held to answer a criminal charge, who is released
without bail upon filing of the complaint or information, may,
at any subsequent stage of the proceedings and whenever a
strong showing of guilt appears to the court, be required to
give bail in the amount fixed, or in lieu thereof, committed to
custody. (20a)
Section 21. Forfeiture of bond. — When the presence of the
accused is required by the court or these Rules, his
bondsmen shall be notified to produce him before the court
on a given date and time. If the accused fails to appear in
person as required, his bail shall be declared forfeited and
the bondsmen given thirty (30) days within which to produce
their principal and to show cause why no judgment should be
rendered against them for the amount of their bail. Within the
said period, the bondsmen must:
(a) produce the body of their principal or give the reason for
his non-production; and
(b) explain why the accused did not appear before the court
when first required to do so.
Failing in these two requisites, a judgment shall be rendered
against the bondsmen, jointly and severally, for the amount
of the bail. The court shall not reduce or otherwise mitigate
the liability of the bondsmen, unless the accused has been
surrendered or is acquitted. (21a)
Section 22. Cancellation of bail. — Upon application of the
bondsmen, with due notice to the prosecutor, the bail may be
cancelled upon surrender of the accused or proof of his
death.
The bail shall be deemed automatically cancelled upon
acquittal of the accused, dismissal of the case, or execution
of the judgment of conviction.
In all instances, the cancellation shall be without prejudice to
any liability on the bond. (22a)
Section 23. Arrest of accused out on bail. — For the
purpose of surrendering the accused, the bondsmen may
arrest him or, upon written authority endorsed on a certified
copy of the undertaking, cause him to be arrested by a police
officer or any other person of suitable age and discretion.
An accused released on bail may be re-arrested without the
necessity of a warrant if he attempts to depart from the
Philippines without permission of the court where the case is
pending. (23a)
Section 24. No bail after final judgment; exception. — No
bail shall be allowed after the judgment of conviction has
become final. If before such finality, the accused has applies
for probation, he may be allowed temporary liberty under his
bail. When no bail was filed or the accused is incapable of
filing one, the court may allow his release on recognizance to
the custody of a responsible member of the community. In
no case shall bail be allowed after the accused has
commenced to serve sentence. (24a)
Section 25. Court supervision of detainees. — The court
shall exercise supervision over all persons in custody for the
purpose of eliminating unnecessary detention. The executive
judges of the Regional Trial Courts shall conduct monthly
personal inspections of provincial, city, and municipal jails
and their prisoners within their respective jurisdictions. They
shall ascertain the number of detainees, inquire on their
proper accommodation and health and examine the
condition of the jail facilities. They shall order the segregation
of sexes and of minors from adults, ensure the observance
of the right of detainees to confer privately with counsel, and
strive to eliminate conditions inimical to the detainees.
In cities and municipalities to be specified by the Supreme
Court, the municipal trial judges or municipal circuit trial
judges shall conduct monthly personal inspections of the
municipal jails in their respective municipalities and submit a
report to the executive judge of the Regional Trial Court
having jurisdiction therein.
A monthly report of such visitation shall be submitted by the
executive judges to the Court Administrator which shall state
the total number of detainees, the names of those held for
more than thirty (30) days, the duration of detention, the
crime charged, the status of the case, the cause for
detention, and other pertinent information. (25a)
Section 26. Bail not a bar to objections on illegal arrest, lack
of or irregular preliminary investigation. — An application for
or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the
warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of the
charge against him, provided that he raises them before
entering his plea. The court shall resolve the matter as early
as practicable but not later than the start of the trial of the
case. (n)
oo. Judicial Affidavit Rule (A.M. No. 12-8-8-SC)
promulgated on September 4, 2012 but to take
effect on January 1, 2013
A.M. No. 12-8-8-SC
JUDICIAL AFFIDAVIT RULE
Whereas, case congestion and delays plague most courts in
cities, given the huge volume of cases filed each year and
the slow and cumbersome adversarial syste1n that the
judiciary has in place;
Whereas, about 40% of criminal cases are dismissed
annually owing to the fact that complainants simply give up
con1ing to court after repeated postponements;
Whereas, few foreign businessmen make long-term
investments in the Philippines because its courts are unable
to provide ample and speedy protection to their investments,
keeping its people poor;
Whereas, in order to reduce the time needed for completing
the testimonies of witnesses in cases under litigation, on
February 21, 2012 the Supreme Court approved for piloting
by trial courts in Quezon City the compulsory use of judicial
affidavits in place of the direct testimonies of witnesses;
Whereas, it is reported that such piloting has quickly resulted
in reducing by about two-thirds the time used for presenting
the testimonies of witnesses, thus speeding up the hearing
and adjudication of cases;
Whereas, the Supreme Court Committee on the Revision of
the Rules of Court, headed by Senior Associate Justice
Antonio T. Carpio, and the Sub-Committee on the Revision
of the Rules on Civil Procedure, headed by Associate Justice
Roberto A. Abad, have recommended for adoption a Judicial
Affidavit Rule that will replicate nationwide the success of the
Quezon City experience in the use of judicial affidavits; and
Whereas, the Supreme Court En Banc finds merit in the
recommendation;
NOW, THEREFORE, the Supreme Court En Banc hereby
issues and promulgates the following:
Section 1. Scope. - (a) This Rule shall apply to all actions,
proceedings, and incidents requiring the reception of
evidence before:
(1) The Metropolitan Trial Courts, the Municipal Trial Courts
in Cities, the Municipal Trial Courts, the Municipal Circuit
Trial Courts, and the Shari' a Circuit Courts but shall not
apply to small claims cases under A.M. 08-8-7-SC;
(2) The Regional Trial Courts and the Shari'a District Courts;
(3) The Sandiganbayan, the Court of Tax Appeals, the Court
of Appeals, and the Shari'a Appellate Courts;
(4) The investigating officers and bodies authorized by the
Supreme Court to receive evidence, including the Integrated
Bar of the Philippine (IBP); and
(5) The special courts and quasi-judicial bodies, whose rules
of procedure are subject to disapproval of the Supreme
Court, insofar as their existing rules of procedure contravene
1 (f) A jurat with the signature of the notary public who
the provisions of this Rule.
(b) For the purpose of brevity, the above courts, quasi-
judicial bodies, or investigating officers shall be uniformly
referred to here as the "court."
Section 2. Submission of Judicial Affidavits and Exhibits in
lieu of direct testimonies. - (a) The parties shall file with the
court and serve on the adverse party, personally or by
licensed courier service, not later than five days before pre-
trial or preliminary conference or the scheduled hearing with
respect to motions and incidents, the following:
(1) The judicial affidavits of their witnesses, which shall take
the place of such witnesses' direct testimonies; and
(2) The parties' docun1entary or object evidence, if any,
which shall be attached to the judicial affidavits and marked
as Exhibits A, B, C, and so on in the case of the complainant
or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case
of the respondent or the defendant.
(b) Should a party or a witness desire to keep the original
document or object evidence in his possession, he may,
after the same has been identified, marked as exhibit, and
authenticated, warrant in his judicial affidavit that the copy or
reproduction attached to such affidavit is a faithful copy or
reproduction of that original. In addition, the party or witness
shall bring the original document or object evidence for
comparison during the preliminary conference with the
attached copy, reproduction, or pictures, failing which the
latter shall not be admitted.
This is without prejudice to the introduction of secondary
evidence in place of the original when allowed by existing
rules.
Section 3. Contents of judicial Affidavit. - A judicial affidavit
shall be prepared in the language known to the witness and,
if not in English or Filipino, accompanied by a translation in
English or Filipino, and shall contain the following:
(a) The name, age, residence or business address, and
occupation of the witness;
(b) The name and address of the lawyer who conducts or
supervises the examination of the witness and the place
where the examination is being held;
(c) A statement that the witness is answering the questions
asked of him, fully conscious that he does so under oath,
and that he may face criminal liability for false testimony or
perjury;
(d) Questions asked of the witness and his corresponding
answers, consecutively numbered, that:
(1) Show the circumstances under which the witness
acquired the facts upon which he testifies;
(2) Elicit from him those facts which are relevant to the
issues that the case presents; and
(3) Identify the attached documentary and object evidence
and establish their authenticity in accordance with the Rules
of Court;
(e) The signature of the witness over his printed name; and
administers the oath or an officer who is authorized by law to
administer the same.
Section 4. Sworn attestation of the lawyer. - (a) The judicial
affidavit shall contain a sworn attestation at the end,
executed by the lawyer who conducted or supervised the
examination of the witness, to the effect that:
(1) He faithfully recorded or caused to be recorded the
questions he asked and the corresponding answers that the
witness gave; and
(2) Neither he nor any other person then present or assisting
him coached the witness regarding the latter's answers.
(b) A false attestation shall subject the lawyer mentioned to
disciplinary action, including disbarment.
Section 5. Subpoena. - If the government employee or
official, or the requested witness, who is neither the witness
of the adverse party nor a hostile witness, unjustifiably
declines to execute a judicial affidavit or refuses without just
cause to make the relevant books, documents, or other
things under his control available for copying, authentication,
and eventual production in court, the requesting party may
avail himself of the issuance of a subpoena ad
testificandum or duces tecum under Rule 21 of the Rules of
Court. The rules governing the issuance of a subpoena to
the witness in this case shall be the same as when taking his
deposition except that the taking of a judicial affidavit shal1
be understood to be ex parte.
Section 6. Offer of and objections to testimony in judicial
affidavit. - The party presenting the judicial affidavit of his
witness in place of direct testimony shall state the purpose of
such testimony at the start of the presentation of the witness.
The adverse party may move to disqualify the witness or to
strike out his affidavit or any of the answers found in it on
ground of inadmissibility. The court shall promptly rule on the
motion and, if granted, shall cause the marking of any
excluded answer by placing it in brackets under the initials of
an authorized court personnel, without prejudice to a tender
of excluded evidence under Section 40 of Rule 132 of the
Rules of Court.
Section 7. Examination of the witness on his judicial
affidavit. - The adverse party shall have the right to cross-
examine the witness on his judicial affidavit and on the
exhibits attached to the same. The party who presents the
witness may also examine him as on re-direct. In every case,
the court shall take active part in examining the witness to
determine his credibility as well as the truth of his testimony
and to elicit the answers that it needs for resolving the
issues.
Section 8. Oral offer of and objections to exhibits. - (a) Upon
the termination of the testimony of his last witness, a party
shall immediately make an oral offer of evidence of his
documentary or object exhibits, piece by piece, in their
chronological order, stating the purpose or purposes for
which he offers the particular exhibit.
the opposing party, and the defaulting party pays a fine of
not less than P 1,000.00 nor more than P 5,000.00 at the
discretion of the court.
(b) The court shall not consider the affidavit of any witness
who fails to appear at the scheduled hearing of the case as
required. Counsel who fails to appear without valid cause
despite notice shall be deemed to have waived his client's
right to confront by cross-examination the witnesses there
present.
(c) The court shall not admit as evidence judicial affidavits
that do not conform to the content requirements of Section 3
and the attestation requirement of Section 4 above. The
court may, however, allow only once the subsequent
submission of the compliant replacement affidavits before
the hearing or trial provided the delay is for a valid reason
and would not unduly prejudice the opposing party and
provided further, that public or private counsel responsible
for their preparation and submission pays a fine of not less
than P 1,000.00 nor more than P 5,000.00, at the discretion
of the court.

(b) After each piece of exhibit is offered, the adverse party
shall state the legal ground for his objection, if any, to its
admission, and the court shall immediately make its ruling
respecting that exhibit.
(c) Since the documentary or object exhibits form part of the
judicial affidavits that describe and authenticate them, it is
sufficient that such exhibits are simply cited by their
markings during the offers, the objections, and the rulings,
dispensing with the description of each exhibit.
Section 9. Application of rule to criminal actions. - (a) This
rule shall apply to all criminal actions:
(1) Where the maximum of the imposable penalty does not
exceed six years;
Section 11. Repeal or modification of inconsistent rules. -
The provisions of the Rules of Court and the rules of
procedure governing investigating officers and bodies
authorized by the Supreme Court to receive evidence are
repealed or modified insofar as these are inconsistent with
the provisions of this Rule.1âwphi1
The rules of procedure governing quasi-judicial bodies
inconsistent herewith are hereby disapproved.
Section 12. Effectivity. - This rule shall take effect on
January 1, 2013 following its publication in two newspapers
of general circulation not later than September 15, 2012. It
shall also apply to existing cases.
Manila, September 4, 2012.

(2) Where the accused agrees to the use of judicial

affidavits, irrespective of the penalty involved; or

(3) With respect to the civil aspect of the actions, whatever

the penalties involved are.

(b) The prosecution shall submit the judicial affidavits of its

witnesses not later than five days before the pre-trial, serving
copies if the same upon the accused. The complainant or
public prosecutor shall attach to the affidavits such
documentary or object evidence as he may have, marking
them as Exhibits A, B, C, and so on. No further judicial
affidavit, documentary, or object evidence shall be admitted
at the trial.

(c) If the accused desires to be heard on his defense after

receipt of the judicial affidavits of the prosecution, he shall
have the option to submit his judicial affidavit as well as
those of his witnesses to the court within ten days from
receipt of such affidavits and serve a copy of each on the
public and private prosecutor, including his documentary and
object evidence previously marked as Exhibits 1, 2, 3, and
so on. These affidavits shall serve as direct testimonies of
the accused and his witnesses when they appear before the
court to testify.

Section 10. Effect of non-compliance with the judicial

Affidavit Rule. - (a) A party who fails to submit the required
judicial affidavits and exhibits on time shall be deemed to
have waived their submission. The court may, however,
allow only once the late submission of the same provided,
the delay is for a valid reason, would not unduly prejudice