Civil Procedure 2018

ChanRobles Professional Review, Inc.
Remedial Law
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Justice Magdangal M. de Leon
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I. General Principles
A. Concept of Remedial Law
Procedure in general
The means whereby the court reaches out to restore rights and remedy wrongs,
and includes every step which may be taken from beginning to the end of a case
(Maritime Company of the Philippines vs. Paredes, 19 SCRA 569 [1967]).
Kinds of procedure
1. As to purpose
a. civil procedure refers to the enforcement of a private
right
b. criminal procedure refers to the prosecution of an
offense
2. As to formality
a. formal procedure requires a set and definite process
to be observed in order that the remedy can issue
b. summary procedure where remedy sought is granted
without delay, and without the necessity of observing
the procedure fixed for ordinary cases
What is civil procedure?
The method of conducting a judicial proceeding to resolve disputes involving
private parties for the purpose of enforcing private rights or obtaining redress for
the invasion of rights.
Action and suit
In the Philippines, the terms action and suit are synonymous (Lopez vs. Compania
de Seguros (16 SCRA 855 [1966])
B. Substantive Law as Distinguished from Remedial Law
1. Substantive law the law that creates, defines regulates and
extinguishes rights and obligations
2. Remedial law the law that provides the procedure or remedy for
enforcement of rights and obligations through the courts of justice.
C. Rule-making Power of the Supreme Court
The Supreme Court has the constitutional power to promulgate rules concerning
pleading, practice and procedure in all courts (Art. VIII, Sec. 5[5], Constitution).
The power of Congress under the 1935 and 1973 Constitutions to repeal, alter or
supplement rules concerning pleading, practice and procedure was taken away
in the 1987 Constitution (Echegaray vs. Secretary of Justice, G.R. No. 132601,
January 19, 1999).
1. Limitations on the rule-making power of the Supreme Court [SUN]
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(a) The rules shall provide a simplified and inexpensive procedure for
the speedy disposition of cases,
(b) The rules shall be uniform for all courts of the same grade, and
(c) The rules shall not diminish, increase, or modify substantive rights.
(Art. VIII, Sec. 5[5], Constitution). [DIM]
In determining whether a rule prescribed by the Supreme Court, for the practice
and procedure of the lower courts, abridges, enlarges, or modifies any
substantive right, the test is whether the rule really regulates procedure, that is, the
judicial process for enforcing rights and duties recognized by substantive law and
for justly administering remedy and redress for a disregard or infraction of them. If
the rule takes away a vested right, it is not procedural. If the rule creates a right
such as the right to appeal, it may be classified as a substantive matter; but if it
operates as a means of implementing an existing right then the rule deals merely
with procedure. (Fabian vs. Desierto, G.R. No. 129742, September 16, 1998, 295
SCRA 40.)
Procedural and substantive rules
Test whether rule really regulates procedure, the judicial process for
enforcing rights and duties recognized by substantive law and for
justly administering remedy and redress for a disregard or infraction
thereof.
If it takes away a vested right, it is not procedural. If the rule creates
a right such as the right to appeal substantive.
If it operates as a means of implementing an existing right
procedural,
Exs. where to prosecute an appeal or transferring venue
of appeal (a) appeals from decisions of Ombudsman in
administrative cases be made to CA, or (b) requiring
that review of NLRC decisions be filed with CA (St. Martin
Funeral Home vs. NLRC, 295 SCRA 494 [1998])
2. Power of the Supreme Court to amend and suspend procedural rules
Inherent power of SC to SUSPEND its own rules or to EXEMPT a particular case from
the operation of said rules (pro hac vice) whenever demanded by justice (Rep.
vs. CA, 107 SCRA 504 [1981]; De la Cruz vs. Court of Appeals, 510 SCRA 103 ).
The right to create rules necessarily carries with it the power to suspend the
effectivity of its creation.
The power to suspend or even disregard rules can be so pervasive and
compelling as to alter even that which the Court itself had already declared to
be final (Apo Fruits Corp. vs. Land Bank of the Philippines, G.R. No. 164195,
October 12, 2010).
D. Nature of Philippine Courts
1. Meaning of a court
A court is a tribunal with the authority to adjudicate legal disputes between
parties and carry out the administration of justice in civil, criminal, and
administrative matters in accordance with the rule of law.
The system of courts that interpret and apply the law are collectively known as
the judiciary
2. Court as distinguished from a judge
A judge is a person who presides over court proceedings, either alone or as part
of a panel of judges. The judge conducts the trial impartially and in an open court.
The judge hears all the witnesses and any other evidence presented by the parties
of the case, assesses the credibility of the parties, and then issues a ruling on the
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matter at hand based on his or her interpretation of the law and his or her own
personal judgment.
3. Classification of Philippine courts
1. Regular Courts- Courts authorized to engage in the general
administration of justice.
These courts derive their powers from the Constitution. At the apex is
the Supreme Court. Below the Supreme Court are three tiers of lower-
level courts that initially decide controversies brought about by
litigants in the first instance.
a. Supreme Court
b. Court of Appeals
c. Regional Trial Court
d. Municipal Trial Court
2. Special Courts - Tribunals that have limited jurisdiction over certain
types of cases or controversies that special courts can hear are
limited only to those that are specifically provided in the special law
creating such special courts. Outside of the specific cases expressly
mentioned in the provisions of the statute creating the special court,
these courts have no authority to exercise any powers of
adjudication.
a. Sandiganbayan
b. Court of Tax Appeals
c. Sharia Court
3. Quasi-Judicial Agencies - Technically, judicial powers pertain to
and are exercised only by courts. However, the Philippine system of
government allows administrative agencies to exercise adjudicatory
powers in certain types of controversies, particularly if same would
facilitate the attainment of the objectives for which the
administrative agency had been created. Unlike regular and special
courts, quasi-courts do not possess judicial powers. Instead they
possess and in fact, exercise what are termed as quasi-judicial
powers.
4. Courts of original and appellate jurisdiction
a. Court of original jurisdiction one where a case is originally
commenced
1) Municipal Trial Court
2) Regional Trial Court
3) Court of Appeals
4) Supreme Court
b. Court of appellate jurisdiction one which has power or review over
the decisions or orders of a lower court
2) Court of Appeals
3) Supreme Court
5. Courts of general and special jurisdiction
a. General jurisdiction courts which take cognizance of all kinds of
cases, civil or criminal, except those assigned to special courts and
courts of limited jurisdiction
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b. Special jurisdiction courts which have the power to hear only
certain types of cases, or are clothed with special powers for the
performance of specified duties beyond which they have no
authority of any kind.
1) Sandiganbayan
2) Court of Tax Appeals
3) Sharia Court
6. Constitutional and statutory courts
a. Constitutional those created by the Constitution
1) Supreme Court
b. Statutory those created by the legislature
1) Court of Appeals
3) Municipal Trial Court
4) Sandiganbayan
5) Court of Tax Appeals
6) Sharia Court
7. Courts of law and equity
Philippine courts are both courts of law and equity. Hence, both legal and
equitable jurisdiction is dispensed with in the same tribunal. (. U.S. vs. Tamparong,
31 Phil. 321)
However, equity does not apply when there is a law applicable to a given case
(Smith Bell Co. vs. Court of Appeals, 267 SCRA 530). It is availed of only in the
absence of a law and is never availed of against statutory law or judicial
pronouncements (Velez vs Demetrio, G.R. No. 128576, August 13, 2002).
8. Principle of judicial hierarchy
Pursuant to this doctrine, direct resort from the lower courts to the Supreme Court
will not be entertained unless the appropriate remedy cannot be obtained in the
lower tribunals.
Rationale: (a) to prevent inordinate demands upon the SCs time and attention
which are better devoted to those matters within its exclusive jurisdiction, and (b)
to prevent further overcrowding of the SCs docket.
Thus, although the SC, CA and the RTC have CONCURRRENT jurisdiction to issue
writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and
injunction, such concurrence does not give the petitioner unrestricted freedom
of choice of court forum.
The SC will NOT ENTERTAIN DIRECT RESORT to it unless the redress desired cannot
be obtained in the appropriate courts, and exceptional and compelling
circumstances, such as cases of national interest and of serious implications, justify
the extraordinary remedy of writ of certiorari, calling for the exercise of its primary
jurisdiction (Heirs of Bertuldo Hinog vs. Melicor,455 SCRA 460 [2005]).
9. Doctrine of non-interference or doctrine of judicial stability
This principle holds that courts of equal and coordinate jurisdiction cannot
interfere with each other’s orders (Lapu-lapu Dev and Housing Corp vs. Group
Management Corp, 338 SCRA 493). Hence, a RTC has no power or authority to
nullify or enjoin the enforcement of a writ of possession issued by another Regional
Trial Court (Suico Industrial Corp vs; CA, 301 SCRA 212). The principle also bars a
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court from reviewing or interfering with the judgment of a co-equal court over
which it has no appellate jurisdiction or power of review (Villamor vs. Salas, 203
SCRA 540). Exc. Third party claim
The doctrine of judicial stability or non-interference in the regular orders or
judgments of a co-equal court, as an accepted axiom in adjective law, serves as
an insurmountable barrier to the competencia of the Makati court to entertain
the habeas corpus case on account of the previous assumption of jurisdiction by
the Cavite court, and the designation of petitioners as guardians ad litem of the
ward. This is based on the policy of peaceful co-existence among courts of the
same judicial plane. (Panlilio vs. Salonga, G.R. No. 113087, June 27, 1994).
II. General Principles on Jurisdiction
Juris and dico I speak by the law.
Power or capacity conferred by the Constitution. or by law to a court or tribunal
to entertain, hear and determine certain controversies, and render judgment
thereon
A. Jurisdiction over the parties
1. How jurisdiction over the plaintiff is acquired
Over person of plaintiff acquired upon filing of complaint or initiatory pleading
and paying docket or filing fees;
2. How jurisdiction over the defendant is acquired
Over person of defendant service on him of coercive process in the manner
provided by law (summons) or his voluntary submission to the jurisdiction of the
court or tribunal (voluntary appearance).
What is the effect of voluntary appearance?
The defendants voluntary appearance in the action shall be equivalent to
SERVICE OF SUMMONS.
However, inclusion in a motion to dismiss on other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary
appearance (Rule 14, Sec. 20).
NOTE:
a. Filing of a motion for reconsideration and appeal is tantamount to
voluntary submission to the jurisdiction of the court.
b. Any mode of appearance in court by a defendant or his lawyer is
equivalent to service of summons, absent any indication that the
appearance of counsel was precisely to protest the jurisdiction of the
court over the person of defendant (Delos Santos vs. Montesa, 221
SCRA 15 [1993]).
B. Jurisdiction over the subject matter
1. Meaning of jurisdiction over the subject matter
a. subject matter
1. The power to hear and determine cases of the general class to
which the proceeding in question belongs.
2. Determined by the LAW IN FORCE at the time of its institution. Once
the court acquires jurisdiction, it may not be ousted by any
subsequent law placing jurisdiction in another tribunal, except (a)
when the law itself so provides or (b) the statute is clearly intended to
apply to actions pending before its enactment.
3. Matter of legislative enactment which none but the legislature can
change.
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4. Once jurisdiction is acquired, court RETAINS it until the final

determination of the case
5. Never acquired by consent or acquiescence of the parties or by
laches, nor by unilateral assumption thereof by a tribunal.
6. Determined by the ALLEGATIONS in the complaint and the
CHARACTER of the relief sought.
7. Does not depend on pleas or defenses of defendant in an answer
or motion to dismiss.
2. Jurisdiction versus the exercise of jurisdiction
Jurisdiction is the authority to decide a cause, and not the decision rendered
therein. Where there is jurisdiction over the person and the subject matter, the
decision in all other questions arising in the case is but an exercise of such
jurisdiction. The errors which the court may commit in the exercise of jurisdiction
are merely errors of judgment which are the proper subject of an appeal. The
errors raised by petitioners in their petition for annulment of judgment assail the
content of the decision of the trial court and not the courts authority to decide
the suit. In other
words, they relate to the courts exercise of its jurisdiction, but petitioners failed to
show that the trial court did not have the authority to decide the case. (Tolentino
vs. Leviste, 443 SCRA 274 [2004]).
3. Error of jurisdiction as distinguished from error of judgment
An error of judgment is one in which the court may commit in the exercise of its
jurisdiction, and which error is reversible only by an appeal. Error of jurisdiction is
one where the act complained of was issued by the court without or in excess of
jurisdiction and which error is correctible only by the extraordinary writ of certiorari.
Certiorari will not be issued to cure errors by the trial court in its appreciation of
the evidence of the parties, and its conclusions anchored on the said findings and
its conclusions of law. As long as the court acts within its jurisdiction, any alleged
errors committed in the exercise of its discretion will amount to nothing more than
mere errors of judgment. (Julies Franchise Corporation vs. Ruiz, G.R. No. 180988,
August 28, 2009, 597 SCRA 463.)
4. How jurisdiction is conferred and determined
Conferred by the LAW IN FORCE at the time of its institution. Determined by the
ALLEGATIONS in the complaint and the CHARACTER of the relief sought
5. Doctrine of primary jurisdiction

The doctrine of primary jurisdiction precludes the courts from resolving a
controversy over which jurisdiction has initially been lodged with an administrative
body of special competence. (Fajardo vs. Flores, G.R. No. 167891, January 15,
2010)
6. Doctrine of adherence of jurisdiction
Once jurisdiction attaches it cannot be ousted by the happening of subsequent
events
although of such a character which should have prevented jurisdiction from
attaching in the first instance [the rule of adherence of jurisdiction] (Ramos vs.
Central Bank of the Philippines, 41 SCRA 565;. Lee vs. Presiding Judge, MTC of
Legaspi City, Br I, 145 SCRA 408).
Once the court acquires jurisdiction, it may not be ousted by any subsequent law
placing jurisdiction in another tribunal, except (a) when the law itself so provides
or (b) the statute is clearly intended to apply to actions pending before its
enactment.
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Once jurisdiction is acquired, court RETAINS it until the final determination of the
case
7. Objections to jurisdiction over the subject matter
When can the issue of jurisdiction be raised?
General rule jurisdiction over the subject matter or nature of the action may be
challenged AT ANY STAGE of the proceedings.
Exception when there is ESTOPPEL.
Party assailing jurisdiction of court must raise it at the first opportunity. While an
order or decision rendered without jurisdiction is a total nullity and may be assailed
at any stage, a party’s ACTIVE PARTICIPATION in the proceedings. without
questioning the jurisdiction until later, especially when an adverse judgment has
been rendered (Soliven vs. Fastforms Phils., Inc., 440 SCRA 389 [2004]).
A party cannot invoke the jurisdiction of the court to secure affirmative relief
against his opponent and after failing to obtain such relief, repudiate such
jurisdiction (Salva vs. CA, 304 SCRA 632 (1999).This includes the filing of a
counterclaim. Such practice cannot be tolerated for reasons of public policy
(Oca vs. CA, 278 SCRA 642 [2002]).
The earliest opportunity of a party to raise the issue of jurisdiction is in a motion to
dismiss filed before the filing or service of an answer. Lack of jurisdiction over the
subject matter is a ground for a motion to dismiss (Sec. 1[b], , Rule 16). If no motion
to dismiss is filed, the defense of lack of jurisdiction may be raised as an affirmative
defense in the answer (Sec. 6, Rule 16).
Under the omnibus motion rule, a motion attacking a pleading like a motion to
dismiss shall include all grounds then available, and all objections not so included
shall be deemed waived, except lack of jurisdiction over the subject matter (Sec.
8, Rule 15).
Jurisdiction over the subject matter may be raised at any stage of the
proceedings, even for the first time on appeal (Francel Realty Corporation vs.
Sycip, 469 SCRA 424 [2005])
Courts may take cognizance of the issue even if not raised by the parties
themselves. No reason to preclude the CA, for example, from ruling on this issue
even if the same had not been resolved by the trial court (Asia International
Auctioneers, Inc. vs., G.R. No. 163445, December 18, 2007).
8. Effect of estoppel on objections to jurisdiction
Heirs of Bertuldo Hinog vs. Melicor, G.R. No. 140954, April 12, 2005
After recognizing the jurisdiction of the trial court by seeking affirmative relief in
their motion to serve supplemental pleading upon private respondents,
petitioners are effectively barred by estoppel from challenging the trial court’s
jurisdiction. If a party invokes the jurisdiction of a court, he cannot thereafter
challenge the court’s jurisdiction in the same case. To rule otherwise would
amount to speculating on the fortune of litigation, which is against the policy of
the Court.
Salva vs. CA, 304 SCRA 632 (1999)

Facts: Squatters around San Jose Airport in Occidental Mindoro were relocated
in NFA lot. Actual occupants of lot filed forcible entry complaint against relocated
families and Mindoro Governor Josephine Sato.
Plaintiffs won in MTC. RTC affirmed. Sato filed notice of appeal. CA dismissed
appeal for being wrong remedy and ordered entry of judgment. MTC issued writ
of execution. Sato filed certiorari and prohibition with CA which was dismissed.
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Sato filed MR on the ground that MTC had no jurisdiction because the squatters
were relocated on a different lot. CA granted MR and dismissed plaintiffs
complaint for forcible entry.
Ruling: SC reversed CA decision issue of jurisdiction never raised before MTC, RTC
and CA. Raised for the first time in MR. .Party assailing jurisdiction of court must
raise it at the first opportunity. While an order or decision rendered without
jurisdiction is a total nullity and may be assailed at any stage, a party’s ACTIVE
PARTICIPATION in the proceedings. without questioning the jurisdiction until an
adverse resolution is issued will bar or estop such party from attacking the court’s
jurisdiction. Settled rule: a party cannot invoke the jurisdiction of the court to
secure affirmative relief against his opponent and after failing to obtain such
relief, repudiate such jurisdiction.
In Tijam vs. Sibonghanoy (G.R. No. L-21450 April 15, 1968) the defense of lack of
jurisdiction of the court that rendered the questioned ruling was held to be barred
by estoppel by laches. It was ruled that the lack of jurisdiction having been raised
for the first time in a motion to dismiss filed almost fifteen (15) years after the
questioned ruling had been rendered, such a plea may no longer be raised for
being barred by laches
In Calimlim vs. Ramirez (G.R. No. L-34362 November 19, 1982) ,despite the fact
that the one who benefited from the plea of lack of jurisdiction was the one who
invoked the court's jurisdiction, and who later obtained an adverse judgment
therein, we refused to apply the ruling in Sibonghanoy. The Court accorded
supremacy to the time-honored principle that the issue of jurisdiction is not lost by
waiver or by estoppel.
C. Jurisdiction over the issues
1. Authority to try and decide the issues raised by the pleadings of
the parties.
2. Conferred by the PLEADINGS or EXPRESS CONSENT of the parties.
3. An issue not duly pleaded may be tried and decided if no timely
objection is made by the parties.
4. In certain cases, as in probate proceedings, jurisdiction over the
issues is conferred by law.
D. Jurisdiction over the res or property in litigation
Acquired by the court over the property or thing in contest, and is obtained by
seizure under legal process of the court.
May result either from the SEIZURE of thing under legal process whereby it is
brought into actual custody of law, or INSTITUTION of legal proceedings whereby
the power of the court over the thing is recognized and made effective.
E. Jurisdiction of Courts
1. Supreme Court
A. Original Jurisdiction
1. Exclusive
Petitions for issuance of writs of certiorari, prohibition, and mandamus against the
following:
a. Court of Appeals
b. Commission on Elections En Banc
c. Commission on Audit (Sec. 7, Art. IX-A, 1987 Constitution)
d. Sandiganbayan
e. Court of Tax Appeals En Banc
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f. Ombudsman in criminal and non-administrative disciplinary cases

2. Concurrent
a. with Court of Appeals
1) Petitions for writs of certiorari, prohibition, and
mandamus against the Civil Service Commission
2) Petitions for writs of certiorari, prohibition and
mandamus against the National Labor Relations
Commission under the Labor Code (Sec. 9, Batas 129
[1983], as amended by Rep. Act No. 7902 [1995], St.
Martins Funeral Homes vs. National Labor Relations
Commission, G.R. No. 130866, September 16, 1998, 295
SCRA 494)
b. with Court of Appeals and Regional Trial Courts
1) Petitions for habeas corpus and quo warranto
2) Actions brought to prevent and restrain violations of
laws concerning monopolies and combinations in
restraint of trade (Sec. 17, Rep. Act No. 296 [1948], as
amended by Rep. Act No. 5440 [1968])
c. with Court of Appeals, Sandiganbayan and Regional Trial Courts
1) Petitions for certiorari, prohibition and mandamus
relating to an act or omission of a municipal trial court,
or of a corporation, a board, an officer or person
2) Petitions for issuance of writ of amparo (Sec. 3, A.M.
No. 07-9-12-SC or The Rule on the Writ of Amparo,
effective October 24, 2007)
3) Petitions for issuance of writ of habeas data (Sec. 3,
A.M. No. 08-1-16-SC effective February 2, 2008)
d. with Regional Trial Courts
Actions affecting ambassadors and other public ministers and
consuls (Sec. 5[1], Article VIII, 1987 Constitution; Sec. 21[2], Batas Blg.
129 [1983])
B. Appellate Jurisdiction
1. Ordinary Appeal
From the Court of Appeals, in all criminal cases involving offenses for which the
penalty imposed is reclusion perpetua or life imprisonment; or a lesser penalty is
imposed for offenses committed on the same occasion or which arose out of the
same occurrence that gave rise to the more severe offense for which the penalty
of death is imposed (Sec. 13[c], Rule 124, as amended by A.M. No. 00-5-03-SC,
effective October 15, 2004, Sec. 13[b], Rule 124)
2. Petition for Review on Certiorari
a. Appeals from Court of Appeals (Sec. 17, Rep. Act No. 296 [1948],
as amended by Rep. Act No. 5440 [1969]; Sec. 5[2], Article VIII, 1987
Constitution; Rule 45, 1997 Rules of Civil Procedure)
b. Appeals from the Sandiganbayan on pure questions of law,
except where the penalty imposed is reclusion perpetua, life
imprisonment, or death (Sec. 7, Pres. Decree No. 1606 [1979], as
amended by Rep. Act No. 8249 [1997]; Nunez vs. Sandiganbayan,
Nos. L-50581-50617, January 20, 1982, 111 SCRA 433; Rule 45, ibid. )
c. Appeals from judgments or final orders of Regional Trial Courts
exercising original jurisdiction in the following:
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1) All cases in which the constitutionality or validity of any

treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question;
2) All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation
thereto;
3) All cases in which the jurisdiction of any lower court is
in issue;
4) All cases in which only an error or question of law is
involved. (Sec. 5[2-a, b, c, and e], Article VIII, 1987
Constitution; Sec. 17, Rep. Act No. 296 [1948], as
amended; Sec. 9[3], Batas Pambansa Blg. 129 [1983];
Rule 45, ibid. ; Sec. 2[c], Rule 41; Sec. 3[e], Rule 122)
d. Appeals from decisions or final resolutions of the Court of Tax
Appeals en banc (Rule 16, Sec. 1, A.M. No. 05-11-07-CTA or The
Revised Rules of the Court of Tax Appeals; Sec. 1, Rule 45, as
amended by A.M. No. 07-7-12-SC dated December 12, 2007; See
also Rep. Act No. 9282 [2004])
3. Petition for certiorari filed within thirty (30) days from notice of the judgment/
final order/ resolution sought to be reviewed against the following: (Rule 64, 1997
Rules of Civil Procedure)
a. Commission on Elections (Sec. 7, Article IX-A, 1987 Constitution;
Aratuc vs. COMELEC, No. L-49705-09, February 8, 1979, 88 SCRA 251)
b. Commission on Audit (Ibid., 1987 Constitution)
2. Court of Appeals
1. Exclusive
a. Actions for annulment of judgments of Regional Trial Courts (Sec.
9[2], Batas Blg. 129 [1983]; Rule 47, 1997 Rules of Civil Procedure)
b. Petitions for certiorari, prohibition, and mandamus involving an act
or omission of a quasi-judicial agency, unless otherwise provided by
law (Sec. 4, Rule 65, as amended by A.M. No. 07-7-12-SC dated
December 12, 2007)
2. Concurrent
a. with Supreme Court
1) Petitions for writs of certiorari, prohibition, and mandamus against
the Civil Service Commission (Rep. Act No. 7902 [1995])
2) Petitions for writs of certiorari, prohibition and mandamus against
the National Labor Relations Commission under the Labor Code (Sec.
9, Batas 129 [1983], as amended by Rep. Act No. 7902 [1995], St.
Martins Funeral Homes vs. National Labor Relations Commission, G.R.
No. 130866, September 16, 1998, 295 SCRA 494)
b. with Supreme Court and Regional Trial Courts
1) Petitions for habeas corpus and quo warranto
2) Actions brought to prevent and restrain violations of laws
concerning monopolies and combinations in restraint of trade (Sec.
17, Rep. Act No. 296 [1948], as amended by Rep. Act No. 5440 [1968])
c. with Supreme Court, Sandiganbayan, and Regional Trial Courts
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1) Petitions for certiorari, prohibition and mandamus relating to an

act or omission of a municipal trial court, or of a corporation, a board,
an officer, or person
2) Petitions for issuance of writ of amparo (Sec. 3, A.M. No. 07-9-12-
SC or The Rule on the Writ of Amparo, effective October 24, 2007)
3) Petitions for issuance of writ of habeas data (Sec. 3, A.M. No. 08-1-
16- SC, effective February 2, 2008)
1. Ordinary Appeal
a. Appeals from Regional Trial Courts, except those appealable to
the Supreme Court under
b. Appeals from Regional Trial Courts on constitutional, tax,
jurisdictional questions involving questions of fact which should be
appealed first to the Court of Appeals (Sec. 17, subparagraph 4 of
the fourth paragraph of Rep. Act No. 296 [1948] as amended, which
was not intended to be excluded by Sec. 9[3], Batas Pambansa Blg.
129 [1983])
c. Appeals from decisions and final orders of the Family Courts (Sec.
14, Rep. Act No. 8369 [1997])
d. Appeals from Regional Trial Courts in criminal cases, where the
penalty imposed is reclusion perpetua, or life imprisonment, or where
a lesser penalty is imposed but for offenses committed on the same
occasion or which arose out of the same occurrence that gave rise
to the more serious offense for which the penalty of reclusion
perpetua or life imprisonment is imposed (Sec. 3[c], Rule 122, as
amended by A.M. No. 00-5-03-SC, effective October 15, 2004; People
vs. Mateo, G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640)
e. Direct Appeal from land registration and cadastral cases decided
by metropolitan trial courts, municipal trial courts, and municipal
circuit trial courts based on their delegated jurisdiction
2. Petition for certiorari against decisions and final resolutions of the National Labor
Relations Commission (A. M. No. 99-2-01-SC; St. Martin Funeral Homes vs. National
Labor Relations Commission, G.R. No. 13086, September 16, 1998, 295 SCRA 494;
Torres, et. al. vs. Specialized Packaging Development Corp., et. al. , G.R.
No.149634, July 6, 2004, 433 SCRA 455)
3. Automatic review in cases where the Regional Trial Courts impose the death
penalty (Secs. 3[d] and 10, Rule 122, as amended by A.M. No. 00-5-03-SC,
effective October 15, 2004; People vs. Mateo, supra)
4. Petition for review
a. Appeals from Regional Trial Courts in cases decided by the RTC in
the exercise of its appellate jurisdiction (Sec. 22, Batas Blg. 129 [1983];
Rule 42, 1997 Rules of Civil Procedure; Sec. 3[b], Rule 122)
b. Appeals from decisions of the Regional Trial Courts acting as
Special Agrarian Courts in cases involving just compensation to the
landowners concerned (Land Bank of the Philippines vs. De Leon, G.
R. No. 143275, September 10, 2002, 388 SCRA 537)
c. Appeals from awards, judgments, final orders, or resolutions of, or
authorized by, quasi-judicial agencies in the exercise of their quasi-
judicial functions. Among these are: CSC, GSIS, NEA, CIAC, SEC, DAR,
OP, CBAA, BPTTT, ERC, LRA, CAB, BOI, PAEC, SSS, IC, ECC, Voluntary
Arbitrator
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d. Appeals from the Office of the Ombudsman in administrative

disciplinary cases (A.M. No. 99-2-02-SC; Fabian vs. Desierto, G.R. No.
129742, September 16, 1998, 295 SCRA 470)
3. Court of Tax Appeals
A. Exclusive appellate jurisdiction
1. Decisions of the Commissioner of Internal Revenue in cases involving disputed
assessments, refunds of internal revenue taxes, fees or other charges, penalties in
relation thereto, or other matters arising under the National Internal Revenue or
other laws administered by the Bureau of Internal Revenue;
2. Inaction by the Commissioner of Internal Revenue in cases involving disputed
assessments, refunds of internal revenue taxes, fees or other charges, penalties in
relations thereto, or other matters arising under the National Internal Revenue
Code or other laws administered by the Bureau of Internal Revenue, where the
National Internal Revenue Code provides a specific period of action, in which
case the inaction shall be deemed a denial;
3. Decisions, orders or resolutions of the Regional Trial Courts in local tax cases
originally decided or resolved by them in the exercise of their original or appellate
jurisdiction;
4. Decisions of the Commissioner of Customs in cases involving liability for customs
duties, fees or other money charges, seizure, detention or release of property
affected, fines, forfeitures or other penalties in relation thereto, or other matters
arising under the Customs Law or other laws administered by the Bureau of
Customs;
5. Decisions of the Central Board of Assessment Appeals in the exercise of its
appellate jurisdiction over cases involving the assessment and taxation of real
property originally decided by the provincial or city board of assessment appeals;
6. Decisions of the Secretary of Finance on customs cases elevated to him
automatically for review from decisions of the Commissioner of Customs which
are adverse to the Government under Sec. 2315 of the Tariff and Customs Code;
7. Decisions of the Secretary of Trade and Industry, in the case of nonagricultural
product, commodity or article, and the Secretary of Agriculture in the case of
agricultural product, commodity or article, involving dumping and countervailing
duties under Sec. 301 and 302, respectively, of the Tariff and Customs Code, and
safeguard measures under Republic Act No. 8800, where either party may appeal
the decision to impose or not to impose said duties.
B. Jurisdiction over cases involving criminal offenses:
1. Exclusive original jurisdiction over all criminal offenses arising from violations of
the National Internal Revenue Code or Tariff and Customs Code and other laws
administered by the Bureau of Internal Revenue or the Bureau of Customs:
Provided, however, That offenses or felonies mentioned in this paragraph where
the principal amount of taxes and fees, exclusive of charges and penalties,
claimed is less than One million pesos (P1,000,000.00) or where there is no
specified amount claimed shall be tried by the regular courts and the jurisdiction
of the CTA shall be appellate. Any provision of law or the Rules of Court to the
contrary notwithstanding, the criminal action and the corresponding civil action
for the recovery of civil liability for taxes and penalties shall at all times be
simultaneously instituted with, and jointly determined in the same proceeding by
the CTA, the filing of the criminal action being deemed to necessarily carry with
it the filing of the civil action, and no right to reserve the filling of such civil action
separately from the criminal action will be recognized.
2. Exclusive appellate jurisdiction in criminal offenses0
!#"
"
a. Over appeals from the judgments, resolutions or orders of the

Regional Trial Courts in tax cases originally decided by them, in their
respective territorial jurisdictions.
b. Over petitions for review of the judgments, resolutions or orders of
the Regional Trial Courts in the exercise of their appellate jurisdiction
over tax cases originally decided by the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts in their
respective jurisdiction.
C. Jurisdiction over tax collection cases
1. Exclusive original jurisdiction in tax collection cases involving final
and executory assessments for taxes, fees, charges and penalties:
Provided, however, That collection cases where the principal
amount of taxes and fees, exclusive of charges and penalties,
claimed is less than One million pesos (P1,000,000.00) shall be tried by
the proper Municipal Trial Court, Metropolitan Trial Court and
Regional Trial Court.
2. Exclusive appellate jurisdiction in tax collection cases:
a. Over appeals from the judgments, resolutions or
orders of the Regional Trial Courts in tax collection cases
originally decided by them, in their respective territorial
jurisdictions.
b. Over petitions for review of the judgments, resolutions
or orders of the Regional Trial Courts in the exercise of
their appellate jurisdiction over tax collection cases
originally decided by the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts,
in their respective jurisdiction. (Sec. 7, RA 1125, amended
by RA 9282)
4. Sandiganbayan
1. Exclusive
a. Violation of Rep. Act No. 3019 [1960] (Anti-Graft) , Rep. Act No. RA 1379 [1955]
and Chapter II, Sec. 2, Title VII of Revised Penal Code; and other offenses
committed by public officials and employees in relation to their office, and
private individuals charged as co-principals, accomplices, and accessories
including those employed in government-owned or controlled corporations,
where one or more of the accused are officials occupying the following positions
in government, whether in a permanent, acting, or interim capacity, at the time
of the commission of the offense:
a. Officials of the Executive Branch xxx classified as salary grade 27
or higher xxx specifically including xxx
b. Members of Congress xxx
c. Members of the Judiciary xxx
d. Members of Constitutional Commissions xxx
e. All other national and local officials classified as salary grade 27
and higher In cases where none of the accused is occupying the
above positions, the original jurisdiction shall be vested in the proper
Regional Trial Court or Metropolitan Trial Court, etc., as the case may
be, pursuant to their respective jurisdictions. (Sec. 2, Rep. Act No.
7975 [1995], as amended by Rep. Act No. 8249 [1997]
In cases where there is no specific allegation of facts showing that the offense
was committed in relation to the public office of the accused, the original
!$"
"
jurisdiction shall also be vested in the proper Regional Trial Court or Metropolitan
Trial Court, etc., as the case may be. (Lacson vs. Executive Secretary, G.R. No.
128096, January 20, 1999, 310 SCRA 298)
b. Civil and criminal cases filed pursuant to and in connection with Executive
Order Nos. 1, 2, 14, and 14-A. (Sec. 2, Rep. Act No. 7975 [1995] as amended by
Rep. Act No. 8249 [1997]).
c. Violations of Rep. Act No. 9160, or Anti-Money Laundering Act of 2001, as
amended by Rep. Act No. 9194, when committed by public officers and private
persons who are in conspiracy with such public officers.
2. Concurrent with Supreme Court
Petitions for issuance of writs of certiorari, prohibition, mandamus, habeas corpus,
and injunction and other ancillary writs in aid of its appellate jurisdiction, including
quo warranto arising in cases falling under said Executive Order Nos. 1, 2, 14, and
14-A. (Ibid., as amended by Rep. Act No. 8249 [1997])
3. Concurrent with Supreme Court, Court of Appeals and Regional Trial Courts
a. Petitions for writ of amparo and writ of habeas data when action
concerns public data files of government offices (Sec. 3, A.M. No. 07-
9-12-SC or The Rule on the Writ of Amparo, effective October 24,
2007; Sec. 3, A.M. No. 08-1-16-SC, effective February 2, 2008)
b. Petitions for certiorari, prohibition, and mandamus, relating to an
act or omission of a Municipal Trial Court, corporation, board, officer,
or person (Sec. 4, Rule 65, as amended by A.M. No. 07-7-12-SC dated
December 12, 2007)
Decisions and final orders of Regional Trial Courts in the exercise of their original or
appellate jurisdiction under Pres. Decree No. 1606 [1979], as amended, shall be
appealable to the Sandiganbayan in the manner provided by Rule 122 of the
Rules of Court. (Sec. 5, Rep. Act No. 8249 [1997])
5. Regional Trial Courts

1. Civil
a. Exclusive
1) Subject of the action not capable of pecuniary
estimation;
Actions not capable of pecuniary estimation
1. Where it is primarily for the recovery of a
SUM OF MONEY, the claim is considered
capable of pecuniary estimation
jurisdiction, whether in the MTC or RTC,
would depend on the AMOUNT of the
claim.
2. Where the basic issue is other than the
right to recover a sum of money, or where
the money claim is purely incidental to, or a
consequence of the principal relief sought,
the subject of litigation may not be
estimated in terms of money jurisdiction
exclusively of RTC.
Exs. Expropriation
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"
specific performance
support
foreclosure of mortgage
annulment of judgment
actions questioning the validity
of a mortgage
annulment of deed of
conveyance
rescission
3. While actions under Sec. 33(3) of B.P. 129
are also incapable of pecuniary estimation,
the law specifically mandates that they are
cognizable by the MTC, METC, or MCTC
where the assessed value of the real
property involved does not exceed
P20,000.00 in Metro Manila, or P50,000.00, if
located elsewhere. (Russel vs. Vestil, G.R.
No. 119347, March 17, 1999).
2) Actions involving title to, or possession of real property
or any interest therein - where assessed value of property
exceeds P20,000.00 (P50,000.00 in Metro Manila) ,
excluding forcible entry and unlawful detainer
3) Actions in admiralty and maritime jurisdiction where
demand or claim exceeds P300,000.00 (P400,000.00 in
Metro Manila)
4) Matters of probate, testate and intestate - where.
gross value of estate exceeds P300,000.00 (P400,000.00
in Metro Manila)
5) Cases not within exclusive jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-
judicial functions.
6) All other cases where demand exclusive of interests,
damages of whatever kind, attorney’s fees, litigations
expenses and cost, or value of property in controversy
exceeds P300,000.00 (P400,000.00 in Metro Manila)
7) Additional original jurisdiction transferred under Sec.
5.2. of the Securities Regulation Code.
8) Application for issuance of writ of search and seizure
in civil actions for infringement of intellectual property
rights (Sec. 3, A.M. No. 02-1-06-SC, effective February 15,
2002)
9) Violations of Rep. Act No. 9160 or Anti-Money
Laundering Act of 2001, as amended by Rep. Act No.
9194.
b. Concurrent
1) with Supreme Court
Actions affecting ambassadors and other public
ministers and consuls (Sec. 21[1], Batas Blg. 129 [1983])
2) with Supreme Court and Court of Appeals
!&"
"
Petitions for habeas corpus and quo warranto (Sec. 5 [1],

Article VIII, 1987 Constitution)
3) with Supreme Court, Court of Appeals, and
Sandiganbayan
a) Petitions for certiorari, prohibition, and
mandamus, if they relate to an act or
omission of a municipal trial court,
corporation, board, officer, or person (Sec.
4, Rule 65, as amended by A.M. No. 07-7-12-
SC, dated December 12, 2007)
b) Petitions for writ of amparo and writ of
habeas data (Sec. 3, A.M. No. 07 9-12-SC or
The Rule on the Writ of Amparo, effective
October 24, 2007; Sec. 3, A.M. No. 08-1-16-
SC, effective February 2, 2008)
4) with metropolitan trial courts, municipal trial courts,
and municipal circuit trial courts Application for
Protection Order under Sec. 10, Rep. Act No. 9282, unless
there is a Family Court in the residence of petitioner.
5) with Insurance Commission
Claims not exceeding PhP 100,000.00 (Sec. 416, Insurance Code
[1974], Pres. Decree No. 612 [1975]. Applicable if subject of the action
is not capable of pecuniary estimation; otherwise, jurisdiction is
concurrent with Metropolitan Trial Court, etc.
2. Criminal
A. Exclusive
Criminal cases not within the exclusive jurisdiction of any court,
tribunal, or body. (Sec. 20, Batas Blg. 129 [1983]). These include
criminal cases where the penalty provided by law exceeds six (6)
years imprisonment irrespective of the fine. (Rep. Act No. 7691
[1994]). These also include criminal cases not falling within the
exclusive original jurisdiction of the Sandiganbayan, where none of
the accused are occupying positions corresponding to salary grade
27 and higher. (Rep. Act No. 7975 [1995] and Rep. Act No. 8249
[1997]).
But in cases where the only penalty provided by law is a fine, the
Regional Trial Courts have jurisdiction if the amount of the fine
exceeds PhP 4,000. (Rep. Act No. 7691 [1994] as clarified by
Administrative Circular No. 09-94 dated June 14, 1994).
All cases decided by lower courts (metropolitan trial courts, etc.) in
their respective territorial jurisdictions. (Sec. 22, Batas Blg. 129 [1983])
6. Family Courts
A. Exclusive and Original Jurisdiction
1. Criminal cases where one or more of the accused is below
eighteen (18) years of age but not less than nine (9) years of age,
when one or more of the victims is a minor at the time of the
commission of the offense: Provided, That if the minor is found guilty,
the court shall promulgate sentence and ascertain any civil liability
!'"
"
which the accused may have incurred. The sentence, however, shall
be suspended without need of application pursuant to Presidential
Decree No. 1903, otherwise known as The Child and Youth Welfare
Code; (RA 8369 [Family Courts Act of 1997])
2. Petitions for guardianship, custody of children, habeas corpus in
relation to the latter; (Sec. 3, A.M. No. 03-04-04-SC, effective May 15,
2003; Sec. 3, A.M. No. 03-02-05-SC, effective April 15, 2003)
3. Petitions for adoption of children and the revocation thereof;
(Secs. A.20 and B.28, A.M. No. 02-6-02-SC, effective August 22, 2002;
See also Rep. Act No. 9523 or An Act Requiring Certification of the
Department of Social Welfare and Development to Declare A Child
Legally Available for Adoption as a Prerequisite for Adoption
Proceedings, Amending for this Purpose Certain Provisions of
Republic Act No. 8552, otherwise known as The Domestic Adoption
Act of 1998, Republic Act No. 8043, otherwise known as The Inter-
Country Adoption Act of 1995, Presidential Decree No. 603, otherwise
known as The Child and Youth Welfare Code, and for Other Purposes,
approved on March 12, 2009)
4. Complaints for annulment of marriage, declaration of nullity of
marriage, and those relating to marital status and property relations
of husband and wife or those living together under different status
and agreements, and petitions for dissolution of conjugal partnership
of gains; (Sec. 2, A.M. No. 02-11-10-SC, effective March 15, 2003)
5. Petitions for involuntary commitment of a child, for removal of
custody against child-placement or child-caring agency or
individual, and for commitment of disabled child; (Secs. 4[b], 5[a][ii],
6[b], A.M. No. 02-1-19-SC, effective April 15, 2002)
6. Cases against minors cognizable under Rep. Act No. 9165, or The
Comprehensive Dangerous Drugs Act of 2002; (See also A.M. No. 07-
8-2-SC, effective November 5, 2007)
7. Violation of Rep. Act No. 7610 [1991], otherwise known as the
Special Protection of Children Against Child Abuse, Exploration and
Discrimination Act, as amended by Rep. Act No. 7658 [1993] and as
further amended by Rep. Act No. 9231 [2003];
8. (RA 9775 [Anti-Child Pornography Act of 2009]
9. Cases of violence against women and their children under Rep.
Act No. 9262, otherwise known as Anti-Violence Against Women and
their Children Act of 2004, including applications for Protection Order
under the same Act;
10 Criminal cases involving juveniles if no preliminary investigation is
required under Sec. 1, Rule 112 of Revised Rules on Criminal
Procedure (Sec. 1, A.M. No. 02-1-18-SC, effective April 15, 2002)
7. Municipal Trial Courts/ Metropolitan Trial Courts
A . Original Jurisdiction
1. Civil
a. Exclusive
1) Actions involving personal property
valued at not more than PhP 300,000.00
(PhP 400,000.00 in Metro Manila)
2) Actions demanding sums of money not
exceeding PhP 300,000.00 (Php4000,000.00
in Metro Manila) ; in both cases, exclusive of
!("
"
interest, damages, attorney’s fees, litigation

expenses and costs, the amount of which
must be specifically alleged, but the filing
fees thereon shall be paid.
These include admiralty and maritime
cases;
3) Actions involving title or possession of real
property where the assessed value does not
exceed PhP 20,000.00 (Php 50,000.00 in
Metro Manila) ;
4) Provisional remedies in principal actions
within their jurisdiction, and in proper cases,
such as preliminary attachment, preliminary
injunction, appointment or receiver and
delivery of personal property (Rule 57, 58,
59, and 60) ;
5) Forcible entry and unlawful detainer, with
jurisdiction to resolve issue of ownership to
determine issue of possession;
6) Probate proceedings, testate or
intestate, where gross value of estate does
not exceed PhP 300,000.00 or in Metro
Manila PhP 400,000.00; (Sec. 33, Batas Blg.
129 [1983] as amended by Rep. Act No.
7691 [1994])
7) Inclusion and exclusion of voters. (Sec. 38,
Batas Blg. 881, Omnibus Election Code of
the Philippines [1985]).
b. Delegated
Cadastral and land registration cases assigned by
Supreme Court where there is no controversy or
opposition and in contested lots valued at more than
PhP 100,000 (Sec. 34, Batas Blg. 129 [1983] as amended
by Rep. Act No. 7691 [1994])
c. Special
Petition for habeas corpus in the absence of all Regional
Trial Court judges. (Sec. 35, Batas Blg. 129 [1983])
2. Criminal
a. Exclusive
1) All violations of city or municipal ordinances
committed within their respective territorial jurisdictions;
2) All offenses punishable with imprisonment of not more
than six (6) years irrespective of the fine and regardless
of other imposable accessory or other penalties and the
civil liability arising therefrom; provided, however, that in
offenses involving damage to property through criminal
negligence, they shall have exclusive original
jurisdiction. (Sec. 32, Batas Blg. 129 [1983] as amended
by Rep. Act No. 7691 [1994])
3) All offenses committed not falling within the exclusive
original jurisdiction of the Sandiganbayan where none of
the accused is occupying a position corresponding to
!)"
"
salary grade 27 and higher. (As amended by Rep. Act

No. 7975 [1995] and Rep. Act No. 8249 [1997])
4) In cases where the only penalty provided by law is a
fine not exceeding PhP 4,000, the Metropolitan Trial
Courts, etc. have jurisdiction. (Administrative Circular No.
09-94, dated June 14, 1994)
b. Special
Applications for bail in the absence of all Regional Trial Court judges.
(Sec. 35, Batas Blg. 129 [1983])
8. Shariah Courts
Presidential Decree (P.D.) No. 1083 created the Sharia Courts, which have limited
jurisdiction over the settlement of issues, controversies or disputes pertaining to the
civil relations between and among Muslim Filipinos. Specifically, these
controversies require the interpretation of laws on Persons, Family Relations,
Succession, Contracts, and similar laws applicable only to Muslims. Despite the
seeming exclusivity of the jurisdiction of the Sharia Courts with regard to
controversies involving Muslims, the Supreme Court retains the power of review
orders of lower courts through special writs (R.A. 6734, Art. IX, Sec.1). This review
extends to decisions made by the Sharia Courts
F. Jurisdiction over small claims; cases covered by the rules on Summary
Procedure and Barangay Conciliation
Small Claims Cases(A.M. No. 08-8-7-SC, effective October 1, 2008)
All actions which are: (a) purely civil in nature where the claim of relief prayed for
by the plaintiff is solely for payment or reimbursement or sum of money, and (b)
the civil aspect of the criminal action, or reserved upon the filing of the criminal
action in court, pursuant to Rule 111 of the Revised Rules of Criminal Procedure,
where the value of the claim does not exceed Two Hundred Thousand Pesos
(P200,000.00) , exclusive of interest and costs.
Rule on Summary Procedure
A. Civil Cases
1. All cases of forcible entry and unlawful detainer, irrespective of the
amount of damages or unpaid rentals sought to be recovered.
Where attorney's fees are awarded, the same shall not exceed
twenty thousand pesos (P20,000.00).
2. All other cases, except probate proceedings, where the total
amount of the plaintiff's claim does not exceed one hundred
thousand pesos (P100,000.00) or, two hundred thousand pesos
(P200,000.00) in Metropolitan Manila, exclusive of interest and costs.
" (A.M. No. 02-11-09-SC, which took effect on November 25, 2002)
B. Criminal Cases:
1. Violations of traffic laws, rules and regulations;
2. Violations of the rental law;
3. Violations of municipal or city ordinances;
4. Violations of Batas Pambansa Bilang 22 (Bouncing Checks Law)
(A.M. No. 00-11 01-SC, which took effect on March 30, 2003)
5. All other criminal cases where the penalty prescribed by law for
the offense charged is imprisonment not exceeding six months, or a
fine not exceeding one thousand pesos (P1,000.00) , or both,
irrespective of other imposable penalties, accessory or otherwise, or
of the civil liability arising therefrom: Provided, however, that in
offenses involving damage to property through criminal negligence,
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"
this Rule shall govern where the imposable fine does not exceed ten
thousand pesos (P10,000.00).
Barangay Conciliation
All disputes are subject to Barangay conciliation pursuant to the Revised
Katarungang Pambarangay Law [formerly P. D. 1508, repealed and now
replaced by Secs. 399-422, Chapter VII, Title I, Book III, and Sec. 515, Title I, Book
IV, R.A. 7160, otherwise known as the Local Government Code of 1991], and prior
recourse thereto is a pre-condition before filing a complaint in court or any
government offices, except in the following disputes:
[1] Where one party is the government, or any subdivision or
instrumentality thereof;
[2] Where one party is a public officer or employee and the dispute
relates to the performance of his official functions;
[3] Where the dispute involves real properties located in different
cities and municipalities, unless the parties thereto agree to submit
their difference to amicable settlement by an appropriate Lupon;
[4] Any complaint by or against corporations, partnerships or juridical
entities, since only individuals shall be parties to Barangay
conciliation proceedings either as complainants or respondents
[Sec. 1, Rule VI, Katarungang Pambarangay Rules];
[5] Disputes involving parties who actually reside in barangays of
different cities or municipalities, except where such barangay units
adjoin each other and the parties thereto agree to submit their
differences to amicable settlement by an appropriate Lupon;
[6] Offenses for which the law prescribes a maximum penalty of
imprisonment exceeding one [1] year or a fine of over five thousand
pesos (P5,000.00) ;
[7] Offenses where there is no private offended party;
[8] Disputes where urgent legal action is necessary to prevent
injustice from being committed or further continued, specifically the
following:
[a] Criminal cases where accused is under police

custody or detention [See Sec. 412 (b) (1) , Revised
Katarungang Pambarangay Law];
[b] Petitions for habeas corpus by a person illegally
deprived of his rightful custody over another or a person
illegally deprived of or on acting in his behalf;
[c] Actions coupled with provisional remedies such as
preliminary injunction, attachment, delivery of personal
property and support during the pendency of the
action; and
[d] Actions which may be barred by the Statute of
Limitations.
[9] Any class of disputes which the President may determine in the
interest of justice or upon the recommendation of the Secretary of
Justice;
[10] Where the dispute arises from the Comprehensive Agrarian
Reform Law (CARL) [Secs. 46 & 47, R. A. 6657];
[11] Labor disputes or controversies arising from employer-employee
relations [Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor
#+"
"
Code, as amended, which grants original and exclusive jurisdiction

over conciliation and mediation of disputes, grievances or problems
to certain offices of the Department of Labor and Employment];
[12] Actions to annul judgment upon a compromise which may be
filed directly in court [See Sanchez vs. Tupaz, 158 SCRA 459].
G. Totality Rule [Note: This is out of place here]
III. Civil Procedure
A. Actions
1. Meaning of ordinary civil actions
Civil action one by which a party sues another for the enforcement or protection
of a right, or the prevention or redress of a wrong (Rule 1, Sec. 3)
May either be ordinary (Rules 1-56) or special (Rules 62-71) ; both are governed
by the rules for ordinary actions, subject to the specific rules prescribed for special
civil actions.
2. Meaning of special civil actions
One by which a party sues another for the enforcement or protection of a right,
or the prevention or redress of a wrong, but subject to specific rules. Examples:
interpleader, declaratory relief, certiorari, prohibition, mandamus, quo warranto,
eminent domain, foreclosure or mortgage, partition, forcible entry, unlawful
detainer and contempt.
3. Meaning of criminal actions
One by which the State prosecutes a person for an act or omission punishable by
law.
4. Civil actions versus special proceedings
Special proceedings a remedy by which a party seeks to establish a status, a right
or a particular fact.
5. Personal actions and real actions[distinction important in determining venue]
Kinds of civil action (As to cause or foundation)
a. personal
Seeks the recovery of personal property, enforcement of a contract or the
recovery of damages.
Venue: place where defendant or any of defendants resides or may be found, or
where plaintiffs or any of plaintiffs resides, at the election of plaintiff.
Transitory may be filed in any place or places where parties may reside.
b. real
Seeks the recovery of real property, or an action affecting title to property or for
recovery of possession, or for partition, or condemnation of, or foreclosure of
mortgage on real property.
Venue: province or city where property or any part thereof lies.
Local may be filed in a fixed place, where property or any part thereof lies.
6. Local and transitory actions
Local Action- One which is required by the Rules to be instituted in a particular
place in the absence of an agreement to the contrary. Ex. Real action.
Transitory- One the venue of which is dependent generally upon the residence of
the parties regardless of where the cause of action arose. Ex. Personal action.
7. Actions in rem, in personam and quasi in rem [distinction important in service
of summons]
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Kinds of civil action (As to object)

a. in personam
Action against a person on the basis of his personal liability, or one affecting the
parties alone, not the whole world, and the judgment thereon is binding only
against the parties properly impleaded.
Exs. forcible entry or unlawful detainer, recover ownership of land, recover
damages, specific performance.
b. in rem
Action against the res or thing itself, instead of against the person.
A real action may at the same time be an action in personam and not necessarily
an action in rem.
In rem to determine title to land, and the object of the suit is to bar
indifferently all who might be minded to make an objection against
the right sought to be established. Seeks judgment with respect
thereto against the whole world.
In personam concerns only the right, title and interest of the parties
to the land, not the title of the land against the whole world.
Exs. probate proceeding, cadastral proceeding, action affecting
personal status of plaintiff (Rule 14, Sec. 15) , insolvency proceeding,
land registration proceeding (not necessary to give personal notice
to owners or claimants to vest court with jurisdiction - publication of
notice brings in the whole world as a party in the case and vests court
with jurisdiction to hear and decide the case).
Contrast: in personam (a) cases involving auction sale of land for collection of
delinquent taxes are in personam mere publication of notice not sufficient; (b)
action to redeem, recover title to or possession of real property (not an action
against the whole world).
c. quasi in rem
Differs from true action in rem individual is named as defendant, and purpose of
proceeding is to subject his interest therein to the obligation or lien burdening the
property.
Neither strictly in personam nor in rem but it is an action in personam where a res
is affected by the decision.
Exs. partition, accounting under Rule 69 actions essentially for the purpose of
affecting defendants interest in the property and not to render a judgment
against him (Valmonte vs. CA, 252 SCRA 92 [1996]).
INDEPENDENT CIVIL ACTION - Art. 33, Civil Code. In cases of defamation, fraud,
and physical injuries a civil action for damages, entirely separate and distinct
from the criminal action, may be brought by the injured party. Such civil action
shall proceed independently of the criminal prosecution, and shall require only a
preponderance of evidence.
B. Cause of Action
1. Meaning of cause of action
Cause of action defined- a cause of action is the act or omission by which a party
violates a right of another (Rule 2, Sec. 2).
Elements of cause of action:
1. legal right of plaintiff
2. corresponding obligation of defendant to respect or not to violate
such right
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"
3. act or omission of defendant which violates the legal right of

plaintiff constituting a breach of the obligation of defendant to
plaintiff
2. Right of Action versus Cause of action
1. Cause of action
a. reason for bringing an action
b. formal statement of the operative facts that give rise to remedial
rights.
c. matter of procedure and is governed by the pleadings filed by the
parties
d. not affected by affirmative defenses (fraud, prescription, estoppel,
etc.)
2. Right of action
a. remedy for bringing an action
b. the remedial right to litigate because of the operative facts
c. matter of right and depends on substantive law
d. affected by affirmative defenses (fraud, prescription, estoppel,
etc.)
3. Failure to state a cause of action
Elements of a Cause of Action
A cause of action exists if the following elements are present:
1) a right in favor of the plaintiff by whatever means and under
whatever law it arises or is created;
2) an obligation on the part of the named defendant to respect or
not to violate such right; and
3) act or omission on the part of such defendant violative of the right
of the plaintiff or constituting a breach of the obligation of the
defendant to the plaintiff for which the latter may maintain an action
for recovery of damages. (Parañaque Kings Enterprises, Inc. vs. Court
of Appeals, G.R. No. 11538; February 16, 1997.)
The fundamental test for failure to state a cause of action is whether, admitting
the veracity of what appears on the face and within the four corners of the
complaint, plaintiff is entitled to the relief prayed for. Stated otherwise, may the
court render a valid judgment upon the facts alleged therein? Indeed, the inquiry
is into the SUFFICIENCY, not the veracity of the material allegations. If the
allegations in the complaint furnish sufficient basis on which it can be maintained,
it should not be dismissed regardless of the defenses that may be presented by
defendants. (AC Enterprise vs. Frabelle Properties Corp., G.R. No. 166744,
November 2, 2006.)
4. Test of sufficiency of a cause of action
How to determine cause of action by the FACTS ALLEGED in the complaint. Only
issue: ADMITTING such alleged facts TO BE TRUE, may the court render a VALID
JUDGMENT in accordance with the prayer in the complaint?
In determining whether the complaint states a cause of action, the ANNEXES
ATTACHED to the complaint may be considered, they being part of the
complaint.
5. Splitting a single cause of action and its effects
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Rule 2, Sec. 4. Splitting a single cause of action; effect of. If two or more suits are
instituted on the basis of the same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for the dismissal of the others.
Basic rule in filing of action (Rule 2, Secs. 3-4)
1. For one cause of action (one delict or wrong) , file only ONE ACTION or suit.
Generally, NO SPLITTING A SINGLE CAUSE OF ACTION. Reasons: a. to avoid
multiplicity of suits; b. to minimize expenses, inconvenience and harassment.
2. Remedy against splitting a single cause of action (two complaints separately
filed for one action) - defendant may file:
a. motion to dismiss on the ground of
(1) litis pendentia, if first complaint is still pending (Rule
16, Sec. 1 [e])
(2) res judicata, if first complaint is terminated by final
judgment (Rule 16, Sec. 1 [f])
b. answer alleging either of above grounds as affirmative defense
(Rule 16, Sec. 6)
If defendant fails to raise ground on time, he is deemed to have
WAIVED them. Splitting must be questioned in the trial court; cannot
be raised for the first time on appeal.
Splitting a cause of action prohibited
May a lessee file with MeTC an action for forcible entry and damages against the
lessor and a separate suit with RTC for moral and exemplary damages plus actual
and compensatory damages based on the same forcible entry?
NO. Claims for damages sprung from the main incident being heard before
MeTC. Unlawful taking or detention of property of another is only one single cause
of action regardless of number of rights that may have been violated. All such
rights should be alleged in a single complaint as constituting one single cause of
action (Progressive Development Corp. vs. CA, 301 SCRA 637 [1999])
The cause of action in the earlier Annulment Case is the alleged nullity of the REM
(due to its allegedly falsified or spurious nature) which is allegedly violative of
Good lands right to the mortgaged property. It serves as the basis for the prayer
for the nullification of the REM. The Injunction Case involves the same cause of
action, inasmuch as it also invokes the nullity of the REM as the basis for the prayer
for the nullification of the extrajudicial foreclosure and for injunction against
consolidation of title. While the main relief sought in the Annulment Case
(nullification of the REM) is ostensibly different from the main relief sought in the
Injunction Case (nullification of the extrajudicial foreclosure and injunction against
consolidation of title) , the cause of action which serves as the basis for the said
reliefs remains the same the alleged nullity of the REM. Thus, what is involved here
is the third way of committing forum shopping, i.e., filing multiple cases based on
the same cause of action, but with different prayers. (Asia United Bank vs.
Goodland Company, Inc., G.R. No. 191388, March 9, 2011)
6. Joinder and misjoinder of causes of action
Joinder of causes of action is the assertion of as many causes of action as a party
may have against an opposing party in one pleading alone. It is not compulsory,
but merely permissive. (Rule 2, Sec. 5)
What are the requisites for joinder of causes of action? (Rule 2, Sec. 5)
1. Compliance with the rule on permissive joinder of parties under
Rule 3, Sec. 6.
Must arise out of the same transaction or series of transactions AND
there is a common question of law or fact. Ex. A, owner of a property,
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can file an ejectment complaint against B, C and D who are

occupying his property without his consent.
2. A party cannot join in an ordinary action any of the special civil
actions. Reason: special civil actions are governed by special rules.
Ex. P500,000 collection cannot be joined with partition because the
latter is a special civil action.
3. Where the causes of action are between the SAME PARTIES but
pertain to DIFFERENT VENUES OR JURISDICTIONS, the joinder may be
allowed in the RTC, provided ONE OF THE CAUSES OF ACTION falls
within the jurisdiction of the RTC and the venue lies therein.
Exception: ejectment case may not be joined with an action within
the jurisdiction of the RTC as the same comes within the exclusive
jurisdiction of the MTC.
Unless the defendant did not object thereto, answered the
complaint, and went to trial because he is precluded from assailing
any judgment against him on the ground of estoppel or laches
(Valderrama vs. CA, 252 SCRA 406 [1996]).
N.B. An action for recovery of possession of property is a real action.
Thus, it should be filed in the place where the property is located,
pursuant to Rule 4, Section 1. (Decena vs. Piquero, G.R. No. 155736,
March 31, 2005).
N.B. As to joinder in the MTC, it must have jurisdiction over ALL THE
CAUSES OF ACTION and must have common venue.
4. Where the claims in all the causes of action are principally for
recovery of money, jurisdiction is determined by the AGGREGATE OR
TOTAL AMOUNT claimed (totality rule).
N.B. The totality rule applies only to the MTC totality of claims cannot
exceed the jurisdictional amount of the MTC.
There is no totality rule for the RTC because its jurisdictional amount is
without limit. Exc. In tax cases where the limit is below P1 million.
Amounts of P1 million or more fall within the jurisdiction of the CTA.
Misjoinder of causes of action not ground for dismissal of an action
A misjoined cause may, on motion of a party or on the initiative of the court, be
severed and proceeded with separately (Rule 2, Sec. 6).
Note: Unlike splitting of a cause of action, a misjoinder is NOT a ground for the
dismissal of an action.
C. Parties to Civil Actions
1. Real Parties in interest; Indispensable parties; Representatives as parties;
Necessary parties; Indigent Parties; Alternative defendants
Real Parties in interest;
Who are real parties in interest?

A real party in interest is the party who stands to be BENEFITED or INJURED by the
judgment in the suit or the party entitled to the avails of the suit.
Unless authorized by law or the Rules of Court, every action must be prosecuted
and defended in the name of the real party in interest. (Rule 3, Sec. 2).
A real party in interest PLAINTIFF is one who has a LEGAL RIGHT, while a real party
in interest DEFENDANT is one who has a correlative LEGAL OBLIGATION whose act
or omission violates the legal right of the former.
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Real interest a present substantial interest, as distinguished from a mere

expectancy, or a future, contingent, subordinate or consequential interest.
Minors represented by their parents were held as real parties in interest to file an
action to annul timber licenses issued by the state, under the following principles:
a. inter-generational responsibility
b. inter-generational justice
c. right of the people to a balanced and healthful ecology
d. minors represent themselves and the generations to come (Oposa
vs. Factoran, G.R. No. 101083, July 30,1993)
An action must be brought in the name but not necessarily by the real party in
interest. In fact, the practice is for an attorney-in-fact to bring action in the name
of the plaintiff.
Standing to sue or locus standi one who is directly affected by and whose interest
is IMMEDIATE AND SUBSTANTIAL in the controversy has the standing to sue. In other
words, he is a real party in interest. He has a personal stake in the outcome of the
controversy.
In a case involving constitutional issues, standing or locus standi means a personal
interest in the case such that the party has sustained or will sustain DIRECT INJURY
as a result of the government act that is being challenged.
Who are allowed to sue under this concept of locus standi? (Kilosbayan, Inc. vs.
Morato, 246 SCRA 540 [1995])
1. Taxpayers where there is a claim of illegal disbursement of public
funds.
2. Voters to question the validity of election laws because of their
obvious interest in the validity of such laws.
3. Concerned citizens if the constitutional question they raise is of
transcendental importance which must be settled early.
4. Legislators to question the validity of official action which they
claim infringes on their prerogatives as legislators.
Indispensable parties;
Indispensable parties (Rule 3, Sec. 7)
An indispensable party is one without whom NO FINAL DETERMINATION can be
had of an action. He shall be joined either as plaintiff or defendant.
His interests in the subject matter of the suit and in the relief sought are so bound
up with that of the other parties that his LEGAL PRESENCE as party to the
proceeding is an ABSOLUTE NECESSITY.
Without the presence of indispensable parties to a suit or proceeding, the
judgment of the court cannot attain real finality (Servicewide Specialists, Inc. vs.
CA, 251 SCRA 70 [1997]).
Examples of indispensable parties:
1. Vendors in an action to annul the sale
2. Lot buyers in an action for reconveyance of parcels of land which
had already been subdivided
3. Co-owners in an action for partition
4. Possessor of land in an action for recovery of possession
Where the obligation of the parties is solidary, either of the parties is indispensable,
and the other is not even a necessary party because complete relief is available
from either. (Cerezo vs. Tuazon, G.R. N0. 141538, March 23, 200
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Representatives as parties;
Representative parties (Rule 3, Sec. 3)
A representative party is one who represents or stands IN THE PLACE OF ANOTHER
and who is allowed to PROSECUTE OR DEFEND an action for the beneficiary.
The beneficiary shall be included in the title of the case and shall be deemed to
be the real party in interest.
Who are the representatives?
1.Trustee of an express trust
2. Guardian
3. Executor or administrator
4. Party authorized by law or the Rules of Court
5. Agent acting in his own name and for the benefit of an undisclosed
principal may sue or be sued without joining the principal except
when the contract involves things belonging to the principal.
Necessary parties;
Necessary parties (Rule 3, Sec. 8)
A necessary or proper party is one who is not indispensable but who ought to be
joined as party
a. if COMPLETE RELIEF is to be accorded as to those already parties,
or
b. for a COMPLETE DETERMINATION or SETTLEMENT of the claim
subject of the action.
Their presence is necessary to adjudicate the whole controversy but whose
interests are so far SEPARABLE that a final decree can be made in their absence
without affecting them.
Non-inclusion of a necessary party does not prevent the court from proceeding
in the action and the judgment is WITHOUT PREJUDICE to the rights of such
necessary party.
Examples of necessary parties:
1. Co-debtor in a joint obligation
2. Subsequent mortgagees or lien holders in judicial foreclosure of
mortgage
3. Possessor (tenant, etc.) in an action for recovery of ownership of
land (the owner is the indispensable party)
4. Owner in an action to recover possession of land (the possessor is
the indispensable party)
Indigent Parties;
Rule 3, Sec. 21. Indigent party. A party may be authorized to litigate his action,
claim or defense as an indigent if the court, upon an ex parte application and
hearing, is satisfied that the party is one who has no money or property sufficient
and available for food, shelter and basic necessities for himself and his family.
The authority to litigate as an indigent party includes an exemption from the
payment of:
1. Transcript of stenographic notes
2. Docket fees and other lawful fees
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Note: The amount of the docket and other lawful fees which the indigent was
exempted from paying shall be a LIEN on any judgment rendered in the case
favorable to the indigent, unless otherwise provided (Rule 3, Sec. 21).
The guidelines for determining whether a party qualifies as an indigent litigant are
provided for in Section 19, Rule 141, which reads:
Sec. 19. Indigent litigants exempt from payment of legal fees. Indigent litigant (a)
whose gross income and that of their immediate family do not exceed an amount
double the monthly minimum wage of an employee and (b) who do not own real
property with a fair market value as stated in the current tax declaration of more
than three hundred thousand pesos (P300,000.00) shall be exempt from the
payment of legal fees.
Alternative defendants-
Rule 2, Sec. 13. Alternative defendants.
Where the plaintiff is uncertain against who of several persons he is entitled to
relief, he may join any or all of them as defendants in the alternative, although a
right to relief against one may be inconsistent with a right of relief against the
other.
Parties to an action(Rule 3, Sec. 1)
1. Plaintiff - the claiming party, the counter-claimant or the third
(fourth, etc.) party plaintiff.
2. Defendant the original defending party, the defendant in a
counterclaim (plaintiff) , the cross-defendant (defendant in a cross-
claim) , or the third (fourth, etc.) -party defendant.
Parties to an action must be natural or juridical persons, possessed of LEGAL
PERSONALITY, otherwise, no suit can be lawfully prosecuted by or against said
persons.
A dead person cannot be a plaintiff or defendant in an action, as he possesses
NO LEGAL PERSONALITY to sue or be sued.
In general, who may be party plaintiff or party defendant?
1. Natural persons
a. Must be of legal age and with capacity to sue (Art. 37, Civil Code)
b. Husband and wife shall sue and be sued jointly (Rule 3, Sec. 4)
c. Minor or incompetent with the assistance of the father, mother,
guardian, or if he has none, a guardian ad litem (Rule 3, Sec. 5)
d. Non-resident
2. Juridical persons
Who are juridical persons? Art. 44, Civil Code
1) State and its political subdivisions
2) Other corporations, institutions and entities for public interest and
purpose, created by law (government-owned or controlled
corporations)
3) Corporations, partnerships and entities for private interest and
purpose to which the law grants a juridical personality.
4) Entities authorized by law (even if they lack juridical personality)
the persons who organized such entity may be sued under the name
by which they are generally or commonly known (Rule 3, Sec. 15)
Classification of parties
The parties to civil actions are classified as follows:
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1. Real parties in interest (Rule 3, Sec. 2)

2. Representative parties (Sec. 3)
3. Indispensable parties (Sec. 7)
4. Necessary parties (Sec. 8)
Lack of legal capacity to sue plaintiffs general disability to sue, such as on
account of minority, insanity, incompetence, lack of juridical personality or any
other general disqualifications of a party (Columbia Pictures, Inc. vs. CA, 261 SCRA
144 [1996])
Plaintiffs lack of legal capacity to sue is a ground for motion to dismiss (Rule 16,
Sec. 1[d]).
Ex. A foreign corporation doing business without a license lacks legal capacity to
sue.
Note: A sole proprietorship is not vested with juridical personality and
cannot sue or file or defend an action. There is no law authorizing sole
proprietorship to file a suit. A sole proprietorship does not possess a
judicial personality separate and distinct from the personality of the
owner of the enterprise. (Berman Memorial Park, Inc. vs. Francisco
Cheng, G.R. No. 154630, May 6, 2005)
As such, the proper caption should have been "Gerino Tactaquin doing business
under the name and style of G.V.T. Engineering Services", as is usually done in
cases filed involving sole proprietorships. (Tanvs. G.V.T. Engineering Services,
Acting through its Owner/ Manager Gerino V. Tactaquin, G.R. No. 153057 August
7, 2006)
Lack of personality to sue the fact that plaintiff is not the real party in interest.
Plaintiffs lack of personality to sue is a ground for a motion to dismiss based on the
fact that the complaint, on its face, states no cause of action (Rule 16, Sec. 1 [g]).
(Evangelista vs. Santiago, 457SCRA 744 [2005])
2. Compulsory and permissive joinder of parties
Rule 3, Sec. 6. Permissive joinder of parties.
All persons in whom or against whom any right to relief in respect to or arising out
of the SAME TRANSACTION or series of transactions is alleged to exist, whether
jointly, severally, or in the alternative, may, except as otherwise provided in these
Rules, join as plaintiffs or be joined as defendants in one complaint, where any
QUESTION OF LAW OR FACT COMMON to all such plaintiffs or to all such
defendants may arise in the action; but the court may make such orders as may
be just to prevent any plaintiff or defendant from being embarrassed or put to
expense in connection with any proceedings in which he may have no interest.
Rule 3, Sec. 7. Compulsory joinder of indispensable parties.
Parties in interest without whom NO FINAL DETERMINATION can be had of an
action shall be joined either as plaintiffs or defendants.
3. Misjoinder and non-joinder of parties
Rule 3, Sec. 9. Non-joinder of necessary parties to be pleaded.
Whenever in any pleading in which a claim is asserted a necessary party is not
joined, the pleader shall set forth his name, if known, and shall state why he is
omitted. Should the court find the reason for the omission unmeritorious, it may
order the inclusion of the omitted necessary party if jurisdiction over his person
may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall
be deemed a WAIVER of the claim against such party.
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The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be WITHOUT
PREJUDICE to the rights of such necessary party.
JOINDER OF PARTIES
Compulsory joinder of parties
What is the effect of failure to include indispensable parties?
The failure to include indispensable parties results in DISMISSAL of the action.
Parties in interest without whom there can be no final determination of an action
SHALL be joined either as plaintiffs or defendants (Rule 3, Sec. 7).
Absence of indispensable parties renders all subsequent actions of the court NULL
AND VOID. It results in lack of authority to act not only as to the party absent but
also as those present (Domingo vs. Scheer, 421 SCRA 468 [2004]).
Is failure to implead an indispensable party a ground for automatic dismissal of
the action?
NO. Neither misjoinder or non-joinder of parties is ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion of any party
on its own initiative at any stage of the action and on such terms as are just . Any
claim against a misjoined party may be severed and proceeded with separately
(Rule 3, Sec. 11).
Procedure for dismissal if indispensable party is not impleaded
a. The responsibility of impleading all the indispensable parties rests
on the plaintiff. To avoid dismissal, the remedy is to implead the non-
party claimed to be indispensable.
b. If plaintiff REFUSES to implead an indispensable party despite the
order of the court, the complaint may be dismissed upon motion of
defendant or upon the courts own motion.
c. Only upon unjustified failure or refusal to obey the order to include
is the action dismissed (Domingo vs. Scheer, supra).
Permissive joinder of parties (Rule 3, Sec. 6)
Persons may join as plaintiffs or may be joined as defendants when there is:
1. Right to relief by or against said persons in respect to or arising out
of the SAME TRANSACTION or series of transactions (connected with
the same subject matter of the suit) and
2. Question of law or fact COMMON to all such plaintiffs or to all such
defendants in the action.
Ex. In a damage suit by heirs of airline passengers who perished
in a plane crash, all the heirs of the dead passengers may join as plaintiffs against
the airline company. There is here a common question of fact and of law,
although each has a SEPARATE, DISTINCT and DIFFERENT CLAIM as to amount from
the others.
They cannot file a class suit, where there is only ONE RIGHT OR CAUSE OF ACTION
pertaining or belonging in common to many persons, not separately or severally
to distinguish the individual.
What are the effects of non-inclusion of a necessary party? (Rule 3, Sec, 9)
The failure to comply with the order for his inclusion, without justifiable cause, shall
be deemed a WAIVER of the claim against such party.
Said non-inclusion does not
a. prevent the court from proceeding in the action, and
b. the judgment rendered therein shall be
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c. WITHOUT PREJUDICE to the rights of such necessary party

Third party complaint (Rule 6, Sec. 11)
A third party complaint is a claim that a defending party may, with leave of court,
file against a person NOT A PARTY to the action, called the third (fourth, etc.) -
party defendant for
a. contribution
b. indemnity
c. subrogation or
d. any other relief in respect of his opponents claim.
> A third party complaint is an action actually
independent of, and separate and distinct from plaintiffs
complaint. Were it not for the Rules of Court, it would be
necessary to file the action separately from the original
complaint by the defendant against the third party
(Associated Bank. vs. CA, 233 SCRA 137 [1994])
> A third party plaintiff may assert a cause of action
against the third party defendant on a THEORY
DIFFERENT from that asserted by the plaintiff against the
defendant. Ex. a defendant in a contract may join as
third party defendant those liable to him in tort for the
plaintiffs claim against him or directly to the plaintiff
(Samala vs. Victor, 170 SCRA 453 [1989]).
Special joinder modes - Parties may also be joined in an action through three
special joinder modes:
a. class suits
b. intervention
c. interpleader
Class suits and interpleader parties are joined at the inception of the suit.
Involuntary because parties joined may or may not know that they are being
joined.
Intervention party is joined after the suit has been filed. Voluntary because a party
asks for leave of court to be allowed to intervene.
Intervention (Rule 19, Sec. 1)
An act or proceeding by which a THIRD PERSON is permitted to become a party
to an action or proceeding between other persons, and which results merely in
the addition of a new party or parties to an original action.
Purpose: to hear and determine at the same time all conflicting claims which may
be made to the subject matter in litigation.
Nature: It is not an independent proceeding, but merely an ancillary and
supplemental one, which must be subordinate to the main proceedings. An
intervenor is limited to the field of proceeding open to the main parties.
Interpleader (Rule 62, Sec. 1)
A remedy asking that the persons who claim the personal property or who
consider themselves entitled to demand compliance with the obligation be
required to LITIGATE AMONG THEMSELVES in order to determine finally who is
entitled to one or the other.
Indispensable element: conflicting claims upon the same subject matter are or
may be made against the plaintiff-interpleader who CLAIMS NO INTEREST in the
subject matter or an interest which in whole or in part is NOT DISPUTED by the
claimants.
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4. Class Suit
Class suit (Rule 3, Sec. 12)
An action filed or defended by one or more parties for the benefit of parties who
are so numerous that it is impracticable to bring them all before the court,
involving a matter which is of common or general interest to such numerous
persons.
There should be only ONE RIGHT OR CAUSE OF ACTION pertaining or belonging in
common to many persons, not separately or severally to distinguish the
individuals.
Petitioners minors assert that they represent their generation as well as generations
yet unborn. We find no difficulty in ruling that they can, for themselves, for others
of their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on
the concept of intergenerational responsibility insofar as the right to a balanced
and healthful ecology is concerned. (Oposa vs. Factoran, G.R. No. 101083, July
30, 1993, 224 SCRA 792).
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors
and generations yet unborn, is now enshrined in the Rules which allows the filing
of a citizen suit in environmental cases. The provision on citizen suits in the Rules
collapses the traditional rule on personal and direct interest, on the principle that
humans are stewards of nature. (Arigo vs. Swift, G.R. No. 206510, September 16,
2014)
Individual suit, class suit, derivative suit

(1) Where a stockholder or member is denied the right of inspection,
his suit would be individual because the wrong is done to him
personally and not to the other stockholders or the corporation.
(2) Where the wrong is done to a group of stockholders, as where
preferred stockholders rights are violated, a class or representative
suit will be proper for the protection of all stockholders belonging to
the same group.
(3) Whenever officials of the corporation refuse to sue or are the ones
to be sued or hold the control of the corporation, an individual
stockholder is permitted to institute a derivative suit on behalf of the
corporation wherein he holds stock in order to protect or vindicate
corporate rights. (Ching vs. Subic Bay Golf and Country Club, G.R.
No. 174353, September 10, 2014)
5. Suits against entities without juridical personality
Rule 3, Sec. 15. Entity without juridical personality as defendant.
When two or more persons not organized as an entity with juridical personality
enter into a transaction, they may be sued under the name by which they are
generally or commonly known.
In the answer of such defendant, the names and addresses of the persons
composing said entity must all be revealed.
6. Effect of death of party litigant
Rule 3, Sec. 16. Death of party; duty of counsel.
Whenever a party to a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to inform the court within thirty (30)
days after such death of the fact thereof, and to give the name and address of
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his legal representative or representatives. Failure of counsel to comply with this

duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased,
without requiring the appointment of an executor or administrator and the court
may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to
appear and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if
the one so named shall fail to appear within the specified period, the court may
order the opposing party, within a specified time, to procure the appointment of
an executor or administrator for the estate of the deceased and the latter shall
immediately appear for and on behalf of the deceased. The court charges in
procuring such appointment, if defrayed by the opposing party, may be
recovered as costs.
Rule 3, Sec. 17. Death or separation of a party who is a public officer. When a
public officer is a party in an action in his official capacity and during its pendency
dies, resigns, or otherwise ceases to hold office, the action may be continued and
maintained by or against his successor if, within thirty (30) days after the successor
takes office or such time as may be granted by the court, it is satisfactorily shown
to the court by any party that there is a substantial need for continuing or
maintaining it and that the successor adopts or continues or threatens to adopt
or continue the action of his predecessor. Before a substitution is made, the party
or officer to be affected, unless expressly assenting thereto, shall be given
reasonable notice of the application therefor and accorded an opportunity to
be heard.
Rule 3, Sec. 20. Action on contractual money claims. When the action is for
recovery of money arising from contract, express or implied, and the defendant
dies before the entry of final judgment in the court in which the action was
pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until the entry of final judgment. A favorable judgment
obtained by the plaintiff therein shall be enforced in the manner especially
provided in these Rules for prosecuting claims against the estate of a deceased
person.
The last sentence above refers to Rule 86 (Claims Against Estate). Sec. 5 thereof
refers to - Claims which must be filed under the notice. If not filed, barred.
Death of a party and duty of counsel to inform court
1. Construed together, Secs. 16 and 20 of the Rules of Court mean that ONLY
PURELY PERSONAL ACTIONS, i.e., legal separation involving nothing more than
bed-and board separation of the spouses, action for support, and the right of the
offended party to institute criminal action DO NOT SURVIVE the death of the
accused.
Such cases will be DISMISSED and the deceased CANNOT BE SUBSTITUTED by his
legal representative.
2. ALL OTHER ACTIONS SURVIVE the death of a party litigant.
In all such cases, substitution by the legal representative is proper.
Examples of claims NOT extinguished by death:
a. Recovery of real and personal property against the estate, such
as ejectment case
b. Enforcement of liens on such properties;
c. Recovery for an injury to person or property by reason of tort
committed by the deceased.
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d. Actions for the recovery of money, arising from a contract, express

or implied (Rule 3, Sec. 20)
What is the effect of failure by counsel to inform the court of death of a party on
the judgment against the party and writ of execution against his sole heir?
It will render the judgment and writ of execution VOID for lack of jurisdiction and
lack of due process. If counsel had notified the court of the party’s death, the
court would have ordered the substitution of the deceased by the sole heir (Rule
3, Sec. 16). The court acquired no jurisdiction over the sole heir upon whom the
trial and the judgment are not binding (Lawas vs. CA, 146 SCRA 173).
What is the effect of non-substitution of a deceased party?
Non-compliance with the rule on substitution would render the proceedings and
judgment of the trial court infirm because the court acquires no jurisdiction over
the persons of the legal representatives or of the heirs on whom the trial and the
judgment would be binding.
Thus, proper substitution of heirs must be effected for the trial court to acquire
jurisdiction over their persons and to obviate any future claim by any heir that he
was not apprised of the litigation against Bertuldo or that he did not authorize
Atty. Petalcorin to represent him.
No formal substitution of the parties was effected within thirty days from date of
death of Bertuldo, as required by Section 16, Rule 3 of the Rules of Court. Needless
to stress, the purpose behind the rule on substitution is the protection of the right
of every party to due process. It is to ensure that the deceased party would
continue to be properly represented in the suit through the duly appointed legal
representative of his estate. (Hinog vs. Melicor, 455 SCRA 460 [2005])
The Rules require the legal representatives of a dead litigant to be substituted as
parties to a litigation. This requirement is necessitated by due process. Thus, when
the rights of the legal representatives of a decedent are actually recognized and
protected, noncompliance or belated formal compliance with the Rules cannot
affect the validity of the promulgated decision. After all, due process had thereby
been satisfied. When a party to a pending action dies and the claim is not
extinguished, the Rules of Court require a substitution of the deceased. The
procedure is specifically governed by Section 16 of Rule 3. (Dela Cruz vs. Joaquin,
G.R. No. 162788, July 28, 2005).
Failure of counsel to comply with his duty under Section 16 to inform the court of
the death of his client and no substitution of such party is effected, will not
invalidate the proceedings and the judgment thereon if the action survives the
death of such party. Moreover, the decision rendered shall bind his successor-in-
interest. The instant action for unlawful detainer, like any action for recovery of
real property, is a real action and as such survives the death of Faustino Acosta.
His heirs have taken his place and now represent his interests in the instant petition.
(Limbauan vs. Acosta, G.R. No. 148606, June 30, 2008)
While it is true that a decision in an action for ejectment is enforceable not only
against the defendant himself but also against members of his family, his relatives,
and his privies who derived their right of possession from the defendant and his
successors-in-interest, it had been established that petitioner (defendants wife)
had, by her own acts, submitted to the jurisdiction of the trial court. She is now
estopped to deny that she had been heard in defense of her deceased husband
in the proceedings therein. (Vda. De Salazar v. CA, G.R. No. 121510, November
23, 1995)
D. Venue
Venue defined - the place where the action is triable, whether real or personal.
Relates to place of trial. Touches more of convenience of the parties rather than
the substance of the case. Procedural and not substantive.
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1. Venue versus Jurisdiction

1. Venue locality or place where the suit may be had. Relates to
jurisdiction over the person rather than subject matter. Provisions
relating to venue establish a relation between plaintiff and
defendant.
2. Jurisdiction power of the court to decide the case on the merits.
Provisions on jurisdiction establish a relation between the court and the subject
matter.
A court cannot motu proprio dismiss a complaint on the ground of improper
venue since improper venue may be WAIVED for failure to object to it (Decoycoy
vs. IAC, 195 SCRA 641 [1991]).
2. Venue of real actions (Rule 4, Sec. 1)
Court which has jurisdiction over area where property or any part thereof is
located.
Real actions - actions affecting title to or possession of real property, or interest
therein.
Examples:
a. recovery of possession
b. partition or condemnation
c. foreclosure of mortgage
d. annulment or rescission of sale of real property
(actually for recovery)
Forcible entry and detainer are real actions, regardless of amount of damages
involved. N.B. But venue may be changed and transferred to another place by
agreement of the parties, and such agreement is valid and enforceable
(Villanueva vs. Mosqueda, 115 SCRA 904 [1982]).
3. Venue of personal actions (Rule 4, Sec. 2)
Where plaintiff or any of principal plaintiffs reside, or where defendant or any of
the principal defendants resides, or in the case of a non-resident defendant,
where he may be found, at the election of the plaintiff.
Meaning of residence ACTUAL RESIDENCE or place of abode, which may not
necessarily be his legal residence or domicile, provided he resides therein with
continuity and consistency. Must be more than temporary.
Personal action where plaintiff seeks the recovery of personal property,
enforcement of contract or recovery of damages.
4. Venue of actions against non-residents (Rule 4, Sec. 3)
What is the venue of actions against nonresident defendant who is not found in
the Philippines?
1. If action affects PERSONAL STATUS of plaintiff, such as a legal
personal relationship which is not temporary nor terminable at the
mere will of the parties (annulment of marriage, recognition of a
natural child) venue is the court of place where PLANTIFF RESIDES.
While the court acquires jurisdiction over person of defendant, it does
not preclude the court from rendering valid judgment over the issue
regarding the personal status of plaintiff in relation to defendant.
This is an action quasi in rem.
2. If action affects any PROPERTY of defendant located in the
Philippines venue is the court in the area where PROPERTY or portion
thereof is SITUATED.
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While court acquires no jurisdiction over person of defendant, valid

judgment may be rendered against the property which is the one
impleaded and is the subject of judicial power (ex. where plaintiff is
already in possession of a lien sought to be enforced or by
attachment of the property).
This is an action in rem.
5. When the Rule on Venue Does not Apply (Rule 4, Sec. 4)
1. Where a specific rule or law provides otherwise.
Example: An offended party who is at the same time a public official can only
institute an action for damages arising from libel in two venues: (a) the place
where he holds office (if private individual, where he resided at the time of the
commission of the offense) and (b) the place where the alleged libelous articles
were printed and first published. N.B. applies also to the criminal case.
a. Unless and until the defendant OBJECTS to venue in a motion to
dismiss prior to a responsive pleading, venue cannot truly be said to
have been improperly laid.
b. A motion to dismiss belatedly filed could no longer deprive the trial
court of jurisdiction to hear and decide the civil action for damages.
Improper venue may be waived and such waiver may occur by
laches.
c. Objections to venue in such actions may be waived as it does not
relate to jurisdiction over the subject matter but rather over the
person. Laying of venue is PROCEDURAL and not substantive (Diaz vs.
Adiong, 219 SCRA 631 (1993)
d. A court cannot motu proprio dismiss a complaint on the ground of
improper venue since improper venue may be WAIVED for failure to
object to it (Dacoycoy vs. IAC, 195 SCRA 641 [1991]).
NOTE:
1) Under Sec. 1 of Rule 16, objections to improper venue must be
made in a motion to dismiss before responsive pleading is filed.
[Responsive pleading is one that seeks affirmative relief and sets up
defenses].
2) Improper venue (Sec. 1 (c) - that venue is improperly laid) may
now be raised as an AFFIRMATIVE DEFENSE in the answer if no motion
to dismiss has been filed (Rule 16, Sec. 6).
3) Under the old rule, when improper venue is not objected to in a
motion to dismiss, it is deemed WAIVED. This provision has been
deleted in the new rule.
2. Where parties have validly agreed in writing before filing of the action on
exclusive venue thereof.
6. Effects of Stipulations on Venue
Provision that We hereby expressly submit to the jurisdiction of the courts of
Valenzuela any legal action which may arise out of this promissory note is
PERMISSIVE stipulation only. It does not require the laying of venue in Valenzuela
exclusively or mandatorily. No qualifying or restrictive words like must, only or
exclusively. Hence no intent by parties to restrict the venue of actions arising out
of the promissory notes to the courts of Valenzuela only (Phil. Banking Corp. vs.
Tensuan, 228 SCRA 385 (1993}
The case at bar involves petitioners mortgaged real property located in
Parañaque City over which respondent bank was granted a special power to
foreclose extra-judicially. Thus, by express provision of Section 2, Act 3135, the sale
can only be made in Parañaque City.
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The exclusive venue of Makati City, as stipulated by the parties and sanctioned
by Section 4, Rule 4 of the Rules of Court, cannot be made to apply to the Petition
for Extrajudicial Foreclosure filed by respondent bank because the provisions of
Rule 4 pertain to venue of actions, which an extrajudicial foreclosure is not. (Sps.
Ochoa vs. ChinaBanking Corporation, G.R. No. 192877, March 23, 2011)
Complaint for unlawful detainer may be filed outside the municipality or city
where the real property is located, pursuant to the venue stipulation in the
contract
Maunlad Homes questioned the venue of Union Banks unlawful detainer action
which was filed in Makati City while the contested property is located in Malolos,
Bulacan. Citing Section 1, Rule 4 of the Rules of Court, Maunlad Homes claimed
that the unlawful detainer action should have been filed with the municipal trial
court of the municipality or city where the real property involved is situated. Union
Bank, on the other hand, justified the filing of the complaint with the MeTC of
Makati City on the venue stipulation in the contract which states that "the venue
of all suits and actions arising out of or in connection with this Contract to Sell shall
be at Makati City. "
While Section 1, Rule 4 of the Rules of Court states that ejectment actions shall be
filed in "the municipal trial court of the municipality or city wherein the real
property involved x x x is situated," Section 4 of the same Rule provides that the
rule shall not apply "where the parties have validly agreed in writing before the
filing of the action on the exclusive venue thereof.
(Union Bank of the Philippines vs. Maunlad Homes Inc., G.R. No. 190071, August
15, 2012)
TO SUMMARIZE:
Waiver of improper venue may be made through:
1. express waiver through written agreement.
2. implied waiver through failure to seasonably object to improper
venue in a motion to dismiss or answer
Improper venue may be questioned through:
1. motion to dismiss (Rule 16, Sec. 1[c])
- if denied, file with the higher court a petition for prohibition with
prayer for TRO and preliminary injunction, as lower court has no
power to enforce its orders in said case, the same being outside the
territorial jurisdiction of the judge before whom it was filed.
2. affirmative defense in answer (Rule 16, Sec. 6).
E. Pleadings
1. Kinds of Pleadings (Rule 6)
What is a pleading?
Written statements of the respective CLAIMS and DEFENSES of the parties
submitted to the court for appropriate judgment.
Pleadings allowed under the Rules of Court
a. Complaint
b. Answer
c. Counterclaim
d. Cross-claim
e. Reply
f. Third party (fourth party, etc.) complaint (Rule 2, Sec. 6)
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g. Complaint in intervention, answer in intervention (Rule 19. Sec. 3)

a. Complaint
Rule 6, Sec. 3. Complaint.
The complaint is the pleading alleging the plaintiff's cause or causes of action.
The names and residences of the plaintiff and defendant must be stated in the
complaint.
b. Answer
1. What is an answer?
An answer is a pleading in which a defending party sets forth his defenses (Rule
6, Sec. 4).
It may be an answer to the complaint, third party (fourth party, etc.) complaint,
counterclaim, or cross-claim.
Time to Plead
a. Answer to Complaint and Third-Party (Fourth-Party, etc.) Complaint fifteen (15)
days after service of summons, unless a different period is fixed by the court (Rule
11, Sec. 1)
However, under Rule 16, Section 4, if a motion to dismiss is denied, the movant
shall file his answer within the balance of the period provided by Rule 11 to which
he was entitled at the time of serving his motion, but not less than five (5) days in
any event, computed from his receipt of the notice of the denial. .
b. Answer of a defendant foreign private juridical entity
(1) when summons is served upon a resident agent fifteen (15) days
after service of summons;
(2) when summons is served on the government official designated
to receive the same thirty (30) days from receipt by the latter of the
summons.
c. Answer to Amended Complaint, Amended Counterclaim, Amended Cross-
Claim and Amended Third-Party (Fourth-Party, etc.)
Complaint:
(1) amended complaint was filed as a matter of right (Rule 10,
Section 2) fifteen (15) days after being served with a copy thereof;
and
(2) amended complaint was filed with leave of court (Rule 10,
Section 3) ten (10) days from notice of order admitting the amended
complaint.
Strict Observance of the Period
While the rules are liberally construed, the provisions on reglementary periods are
strictly applied for they are deemed indispensable to the prevention of needless
delays and necessary to the orderly and speedy discharge of judicial business.
Strict compliance with said periods is mandatory and imperative.
(1) Negative defenses
SPECIFIC DENIAL of the material fact or facts alleged in the pleading or the
claimant essential to his cause of action. (Rule 6, Section 5)
(2) Negative pregnant
A negative pregnant is a form of negative expression which carries with it in
affirmation or at least an implication of some kind favorable to the adverse party.
It is a denial pregnant with an admission of the substantial facts alleged in the
pleading. Where a fact is alleged with qualifying or modifying language and the
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words of the allegation as so qualified or modified are literally denied, it has been
held that the qualifying circumstances alone are denied while the fact itself is
admitted. (Guevarra vs. Eala, A.C. No. 7136, August 1, 2007)
A negative pregnant (sometimes called a pregnant denial) refers to a denial
which implies its affirmative opposite by seeming to deny only a qualification of
the allegation and not the allegation itself. For example, "I have never consumed
shabu while on duty" might imply that the person making the statement had
consumed shabu on other occasions, and was only denying that he had done so
while on duty.
(3) Affirmative Defenses
Allegation of a NEW MATTER which, while hypothetically admitting the material
allegations in the pleading of the claimant, would nevertheless PREVENT OR BAR
RECOVERY by him.
The affirmative defenses include fraud, statute of limitations, release, payment,
illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy,
and any other matter by way of confession and avoidance. (Rule 6, Sec. 5).
Note that some of these grounds are also grounds for motion to dismiss.
What are the two kinds of defenses that may be set forth in the answer?
1. Affirmative defenses allegation of a new matter which while
hypothetically admitting the material allegations in the pleading
would nevertheless prevent or bar recovery by the claiming party. It
is in the nature of confession and avoidance
2. Negative defenses specific denial of the material facts or facts
alleged in the pleading essential to establish the plaintiffs cause of
action (Rule 6, Sec. 5).
c. Counterclaims
A counterclaim is any claim which a DEFENDING PARTY may have against an
opposing party. (Rule 6, Sec. 6)
(1) Compulsory counterclaim
What is a compulsory counterclaim?
(1) One which, being cognizable by the regular courts of justice,
(2) ARISES OUT OF or is CONNECTED WITH the transaction or
occurrence constituting the subject matter of the opposing party’s
claim and
(3) does not require for its adjudication the presence of third parties
of whom the court cannot acquire jurisdiction.
(4) Such a counterclaim must be within the jurisdiction of the court
both as to the amount and the nature thereof,
(5) except that in an original action before the Regional Trial Court,
the counterclaim may be considered compulsory regardless of the
amount (Rule 6, Sec. 7) , meaning its amount need not be under RTC
jurisdiction.
Examples: (1) damages claimed to have been suffered as a consequence of the
action; (2) a claim for attorney’s fees; (3) in a possessory action, the defendants
claim of ownership
(2) Permissive counterclaim
What is a permissive counterclaim?
a. One which is not barred even if not set up and which has NO
LOGICAL RELATION with the transaction or occurrence that is the
subject matter of the opposing party’s claim, or
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b. even when there is such a connection, the court has no jurisdiction

to entertain the claim or it requires for its adjudication the presence
of third persons of whom the court cannot acquire jurisdiction
(National Marketing Corp. vs. Federation of United Namarco
Distributors, Inc., 49 SCRA 248 [1973]).
What is the difference between permissive and compulsory counterclaims?
a. In a permissive counterclaim, the docket and other lawful fees
should be paid and the same should be accompanied by a
certificate against forum shopping and certificate to file action
issued by the proper Lupon Tagapamayapa. It should also be
answered by the claiming party. It is NOT BARRED even if not set up
in the action.
b. In a compulsory counterclaim, no docket fee is paid and the
certificates mentioned above are not required. If it is not raised in the
answer, it shall be BARRED. (Rule 9, Sec. 2)
Examples of compulsory and permissive counterclaims: . A filed a suit for
collection of P350,000 against B in the RTC of Cebu City. Aside from alleging
payment as a defense, B in his answer, set up counterclaims for P120,000 as
damages and P25,000 as attorney’s fees as a result of the baseless filing of the
complainant, as well as for P230,000 as the balance of the purchase price of the
28 units of refrigerators he sold to A.
The RTC has jurisdiction over the compulsory counterclaims in the total amount of
P145,000 because in an original action before the RTC, the counterclaim may be
considered COMPULSORY regardless of amount (Rule 6, Sec. 7, 2nd sentence). This
means that even a compulsory counterclaim not exceeding P300,000 or P400,000
may be filed in the RTC.
But the RTC has no jurisdiction over the PERMISSIVE counterclaim of P230,000
because it does not exceed P300,000.
** In an action for recovery of land, the counterclaim for reimbursement of the
value of the improvements is in the nature of a compulsory counterclaim in . Thus,
the failure by private respondents to set it up bars their right to raise it in a
subsequent litigation. The rule on compulsory counterclaim is designed to achieve
resolution of the whole controversy at one time and in one action to avoid
multiplicity of suits (Baclayon vs. Court of Appeals, G.R. No. 89132, February 26,
1990)
N.B. : (1) A compulsory counterclaim that merely reiterates special
defenses which are deemed controverted even without a reply, or
raises issues which are deemed automatically joined by the
allegations of the complaint need not be answered. However, a
compulsory counterclaim which raises issues not covered by the
complaint should be answered.
(2) If the defendant has a compulsory counterclaim, he should not
file a motion to dismiss but an answer with a counterclaim, with the
ground for the motion to dismiss being asserted as an affirmative
defense pursuant to Rule 16, Sec. 6. The compulsory counterclaim is
deemed waived when defendant filed a motion to dismiss the
complaint instead of answering the same (Financial Building Corp.
vs. Forbes Park Association, Inc., G.R. No. 133119, August. 17, 2000).
(3) If the counterclaim is based on an ACTIONABLE DOCUMENT
attached to or copied in the counterclaim, the genuineness and due
execution of the instrument shall be DEEMED ADMITTED unless the
adverse party through a reply specifically DENIES UNDER OATH its
genuineness and due execution (Rule 8, Sec. 8)
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(3) In an action before the first level court (MTC, MeTC, MTCC, MCTC) the amounts
demanded in the counterclaim, cross-claim, third party complaint must fall
WITHIN THE JURISDICTION of said court, which should not exceed P300,000.00
(outside Metro Manila) and P400,000.00 (within Metro Manila) ,
***(3) Effect on the Counterclaim when the complaint is dismissed
1. If no motion to dismiss has been filed, any of the grounds for
dismissal under Rule 16 may be pleaded as an affirmative defense in
the answer, and in the discretion of the court, a preliminary hearing
may be had thereon as if a motion to dismiss has been filed The
dismissal is without prejudice to the right of the defendant to
prosecute his counterclaim in the same or separate action (Rule 16,
Sec. 6). .
2. When the plaintiff himself files a motion to dismiss his complaint
after the defendant has pleaded his answer with a counterclaim. If
the court grants the motion, the dismissal shall be limited to the
complaint. It shall be without prejudice to the right of the defendant
to prosecute his counterclaim in a separate action unless within 15
days from notice of the motion, manifests his preference to have his
counterclaim resolved in the same action(Rule 17, Sec. 2).
3. When the complaint is dismissed through the fault of the plaintiff
and at a time when a counterclaim has already been set up, the
dismissal is without prejudice to the right of the defendant to
prosecute his counterclaim in the same or separate action(Rule 17,
Sec. 3)
d. Cross-claims (Rule 6, Sec. 8)
What is a cross-claim?
a. Any claim by any party against a co-party
b. arising out of the transaction or occurrence
c. that is the subject matter of either the original action or of a
counterclaim therein.
Such cross-claim may include a claim that the party against whom it
is asserted is or may be liable to the cross-claimant for all or part or a
claim asserted in the action against the cross-claimant (Rule 6, Sec.
8).
A cross-claim is allowed to be interposed by a party against a co-
party to enable the former to RECOVER from the latter whatever he
might be made liable to pay the plaintiff.
Ex. If ABC Bank sues X and Y to collect a loan, Y, who merely acted as an
accommodation party, may file a cross-claim against X by claiming that X is the
actual debtor and should be liable for the payment of the loan (Bar 1997).
The dismissal of the complaint carries with it the dismissal of the cross-
claim which is purely defensive, but NOT a cross-claim seeking
affirmative relief (Torres vs. CA, 49 SCRA 67 [1973]).
A cross-claim that a party has at the time the answer is filed shall be
contained in said answer (Rule 11, Sec. 8). If not set up, it shall be
barred (Rule 9, Sec. 2). Hence, a cross-claim cannot be set up for the
first time on appeal (Loadmasters Customs Services, Inc. vs. Glodel
Brokerage Corporation, 639 SCRA 69)
A cross-claim that shall be barred if not asserted is one already
existing at the time the answer is filed, but not a cross-claim that may
mature or may be acquired after service of the answer. Such cross-
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claim may, with permission of the court, be presented by

supplemental pleading before judgment (Rule 11, Sec. 9)
A cross-claim omitted through oversight, inadvertence or excusable
neglect, or when justice requires, may, by leave of court, be set up
by amendment before judgment (Rule 11, Sec. 10)
Distinguish a cross-claim from a counterclaim.
a. A cross-claim is a claim against a co-party while a counterclaim is
a claim against an opposing party.
b. A cross-claim requires that filing fee be paid and that there be
certification against forum shopping while only permissive
counterclaim requires the same.
c. A cross-claim must be answered, otherwise there might be default
while a compulsory counterclaim need not be answered.
e. Third (fourth, etc.) party complaints
Rule 6, Sec. 11. Third, (fourth, etc.) -party complaint.
A third (fourth, etc.) -party complaint is a claim that a defending party may, with
leave of court, file against a person not a party to the action, called the third
(fourth, etc.) -party defendant, for contribution, indemnity, subrogation or any
other relief, in respect of his opponent's claim.
Ex. If the passenger of a bus sues the operator for breach of contract of carriage
because of injuries sustained by him in an accident, the operator may file a third-
party complainant against the driver for reimbursement
M assembles an owner-type jeep for O, who in turn rents it to P. Due to faulty
brakes, P meets a vehicular accident, causing him injuries. P files an action for
damages against O and M. O cannot file a third-party complaint against M
because both are already parties. Instead, O should file a cross-claim against M
(Bar 1996)
Tests to determine whether the third-party complaint is in respect of plaintiffs
claim:
1. Whether it arises out of the same transaction on which the plaintiffs
claim is based, or, although arising out of another or different
transaction, is connected with the plaintiffs claim;
2. Whether the third-party defendant would be liable to the plaintiff
or to the defendant for all or part of the plaintiffs claim against the
original defendant; and
3. Whether the third-party defendant may assert any defenses which
the third-party plaintiff has or may have to the plaintiffs claim.
(Capayas vs. CFI of Albay, 77 Phil 181).
Leave of court is necessary in filing a third (fourth, etc.) party complaint in order to
obviate delay in the resolution of the complaint, such as when the third-party
defendant cannot be located, or when unnecessary issues may be introduced,
or when a new and separate controversy is introduced. Leave of court is not
required in filing a counterclaim or cross-claim because the parties involved are
already parties to the case.
Where the trial court has jurisdiction over the main case, it also has jurisdiction over
the third party complaint, regardless of the amount involved as a third-party
complaint is merely auxiliary to and is a continuation of the main action. (Republic
v. Central Surety & Insurance Co., G.R. No. L-27802, Oct. 26, 1968)
The court, in furtherance of convenience or to avoid prejudice, may order a
separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or
of any separate issue or of any number of claims, cross-claims, counterclaims,
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third-party complaints or issues. But a separate trial may be denied if a party is

thereby deprived of his right to be heard upon an issue dealt with and determined
in the main trial. (Metropolitan Bank and Trust Company vs. Sandoval, G.R. No.
169677, February 18, 2013) - LPB
f. Complaint-in-intervention
INTERVENTION - a legal proceeding by which a person who is not a party to the
action is permitted by the court to become a party by intervening in a pending
action after meeting the conditions and requirements of the Rules of Court.
If the purpose of the motion for intervention is to assert a claim against either or
all of the original parties, the pleading shall be called a COMPLAINT-IN-
INTERVENTION
The intervenor shall file a complaint-in-intervention if he asserts a claim against
either or all of the original parties, or an answer-in-intervention if he unites with the
defending party in resisting a claim against the latter. (Rule 19, Sec. 3)
The answer to the complaint-in-intervention shall be filed within fifteen (15) days
from notice of the order admitting the same, unless a different period is fixed by
the court. (Rule 19, Sec. 4)
g. Reply
Rule 6, Sec. 10. Reply.
A reply is a pleading, the office or function of which is to deny, or allege facts in
denial or avoidance of new matters alleged by way of defense in the answer and
thereby join or make issue as to such new matters. If a party does not file such
reply, ALL the new matters alleged in the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the new matters so
alleged, such claims shall be set forth in an amended or supplemental complaint.
N.B. The filing of a reply is not necessary, because even if a party does not file a
reply, all the new matters that were alleged in the answer are deemed
controverted. (Rule 6, Sec. 10)
Exception:
***1. Where the defense in the answer is based on an actionable
document, a reply under oath must be made, otherwise, the
genuineness and due execution of the document shall be deemed
admitted (Rule 8, Sec. 8) (Veluz vs. Court of Appeals, G.R. No. 139951,
November 23, 2000)
2. Where the plaintiff files an action to recover a loan with interest
and the defendant in his answer alleges that the interest charged by
the plaintiff in is usurious, there is no need to file a reply to deny such
allegation. It is necessary to deny allegations of usury only if such
allegations are made in a complaint to recover usurious interest.
(Rule 8, Sec. 11)
2. Pleadings allowed in small claims cases and cases covered by the rule on
summary procedure
Small Claims-
a. Pleadings allowed
1. Statement of Claims (complaint)
2. Response (answer) - Secs 5 and 11, Rule of Procedure for Small
Claims Cases
3. Permissive counterclaim - The defendant may also elect to file a
counterclaim against the plaintiff that does not arise out of the same
transaction or occurrence, provided that the amount and nature
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thereof are within the coverage of this Rule and the prescribed
docket and other legal fees are paid. (Sec. 13, RPSCC)
b. Prohibited pleadings, motions and petitions
1. Motion to dismiss
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 (Sec. 14, RPSCC).
Summary Procedure
a . Pleadings allowed.
1. Complaint
2. Compulsory counterclaim
3. Cross-claims pleaded in the answer
4. Answer to these pleadings (Sec. 3, Rule on Summary Procedure)
b. Prohibited pleadings, motions and petitions
Same as in Small Claims Cases, except that motion to dismiss is allowed on the
ground of
- lack of jurisdiction over the subject matter, or
- failure to comply with barangay conciliation (Sec. 19, RSP).
3. Parts of a pleading (Rule 7)
a. Caption
The Caption contains the following:
1. Name of the court
2. Title of the action
3. Docket number, if assigned (Rule 7, Sec. 1)
The Body sets forth:
1. Designation
2. Allegations of the party’s claims and defenses
3. Relief prayed for (may add a general prayer for such further or
other relief as may be deemed just and equitable)
4. Date of the pleading (Rule 7, Sec. 2)
b. Signature and address
Rule,7 Sec. 3. Signature and address.
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Every pleading must be signed by the party or counsel representing him, stating
in either case his address which should not be a post office box.
The signature of counsel constitutes a CERTIFICATE by him that
(a) he has read the pleading;
(b) to the best of his knowledge, information, and belief there is good
ground to support it; and
(c) it is not interposed for delay.
An unsigned pleading produces NO LEGAL EFFECT. However, the court may, in its
discretion, allow such deficiency to be remedied if it shall appear that the same
was due to mere inadvertence and not intended for delay.
Counsel who (a) deliberately files an unsigned pleading, or (b) signs a pleading
in violation of this Rule, or (c) alleges scandalous or indecent matter therein, or (d)
fails to promptly report to the court a change of his address, shall be subject to
appropriate DISCIPLINARY ACTION.
c. Verification and certification against forum shopping
(1) Requirements of a corporation executing the verification/certification of non-
forum shopping
Verification
How is verification made?
It is verified by an affidavit. This affidavit declares that the:
1. Affiant has READ the pleading; and
2. Allegations therein are TRUE AND CORRECT of his PERSONAL
KNOWLEDGE or BASED ON AUTHENTIC RECORDS (Rule 7, Sec. 4)
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 (Rule 7, Sec. 4).
What is the significance of verification?
It is intended to secure an assurance that the allegations in a pleading are true
and correct and not the product of the imagination or a matter of speculation,
and that the pleading is filed in good faith. The absence of a proper verification
is cause to treat the pleading as unsigned and dismissible. (Chua vs. Torres, G.R.
No. 151900, August 30, 2005)
Is verification a jurisdictional requirement?
NO. The requirement regarding verification of a pleading is a FORMAL, nor
jurisdictional. Such requirement is simply a condition affecting the form of a
pleading, non-compliance with which does not necessarily render the pleading
fatally defective (Uy vs. Land Bank of the Phils., 336 SCRA 419 [2000]).
The absence of the signature of the person misjoined as a party-plaintiff in either
the verification page or certification against forum-shopping is not a ground for
the dismissal of the action(Chua vs. Torres, G.R. No. 151900, August 30, 2005)
Forum Shopping
Certification against forum shopping is required in filing a complaint and other
initiatory pleadings asserting a claim or relief (Rule 7, Sec. 5). This rule applies as
well to special civil actions since the rules for ordinary civil action are suppletory.
When is there forum shopping?

There is forum shopping when, as a result of an adverse opinion in one forum, a
party seeks a favorable opinion, other than by appeal or certiorari in another.
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There can also be forum shopping when a party institutes two or more suits in
different courts, either simultaneously or successively, in order to ask the courts to
rule on the same or related causes and/or to grant the same or substantially the
same reliefs on the supposition that one or the other court would make a
favorable disposition or increase a party’s chances of obtaining a favorable
decision or action. (Huibonhoa v. Concepcion, G.R. No. 153785, August 3, 2006)
Test to determine forum-shopping: To determine whether a party violated the rule
against forum shopping, the most important question to ask is whether the
elements of litis pendentia are present or whether a final judgment in one case
will result to res judicata in another. Thus, the test is whether in the two or more
cases pending, there is identity of:
1. Parties
2. Rights or causes of action
3. Reliefs sought (Huibonhoa v. Concepcion, supra)
Who executes certification against forum-shopping?
It is the plaintiff or principal party who executes the certification under oath (Rule
7, Sec. 5). It must be signed by the party himself and cannot be signed by his
counsels. The reason the certification against forum shopping is required to be
accomplished by petitioner himself is because only the petitioner himself has
actual knowledge of whether or not he has initiated similar actions or
proceedings in different courts or agencies. (Digital Microwave Corp. vs. CA, G.R.
No. 128550, March 16, 2000).
What are the undertakings of a party under the certification against forum
shopping?
1. That the party has not commenced or filed any claim involving the
same issues in any court, tribunal, or quasi-judicial agency and, to the
best of his knowledge, no such other action or claim is pending;
2. That if there is such other pending action or claim, a complete
statement of the present status thereof;
3. That if he should therefore learn that the same or similar action or
claim has been filed or is pending, he shall report that fact within five
days therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed (Rule 7, Sec. 5)
In what ways may forum shopping be committed?
1. Filing multiple cases based on the same cause of action and with
the same prayer, the previous case not having been resolved yet
(litis pendentia)
2. Filing multiple cases based on the same cause of action and the
same prayer, the previous case having been finally resolved (res
judicata)
3. Filing multiple cases based on the same cause of action but with
different prayers (splitting causes of action) where the ground for
dismissal is also either litis pendentia or res judicata).
Effect of forum shopping
1. If the forum shopping is NOT considered WILFUL and DELIBERATE,
the subsequent cases shall be DISMISSED WITHOUT PREJUDICE on one
of the two grounds mentioned above
Non-compliance with the rule on certification against forum
shopping is not curable by mere amendment and shall be a cause
for the dismissal of action without prejudice, unless otherwise
provided, upon motion and after hearing (Rule 7, Sec.5)
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2. If the forum shopping is WILFUL and DELIBERATE, both (or all, if there
are more than two actions) shall be DISMISSED WITH PREJUDICE (Ao-
As vs. CA, 491 SCRA 353 [2006])
Willful and deliberate forum shopping of the party or his counsel shall
be a ground for summary dismissal. This dismissal is with prejudice and
shall constitute DIRECT CONTEMPT as well as cause for administrative
sanctions on the part of counsel. (Rule 7, Sec. 5)
What are the requirements of forum shopping certificate for a corporation?
The lack of certification against forum shopping is generally not curable by the
submission thereof after the filing of the petition. Section 5 of Rule 45 provides that
the failure of the petitioner to submit the required documents that should
accompany the petition, including the certification against forum shopping, shall
be sufficient ground for the dismissal thereof. The same rule applies to
certifications against forum shopping signed by a person on behalf of a
corporation which are unaccompanied by proof that said signatory is authorized
to file a petition on behalf of the corporation. In certain exceptional
circumstances, however, the Court has allowed the belated filing of the
certification. (Mediserv, Inc. vs. Court of Appeals (special former 13th division)
and Landheights Development Corporation, G.R. No. 161368, April 5, 2010)
No proof of authority necessary
The following officials or employees of the company can sign the verification and
certification without need of a board resolution: (1) the Chairperson of the Board
of Directors, (2) the President of a corporation, (3) the General Manager or Acting
General Manager, (4) Personnel Officer, and (5) an Employment Specialist in a
labor case. In Corazon’s affidavit, she stated that she is the "office manager and
resident interpreter of the Manila Bureau of Fuji Television Network, Inc. " and that
she has "held the position for the last twenty-three years. " As the office manager
for 23 years, Corazon can be considered as having knowledge of all matters in
Fuji’s Manila Bureau Office and is in a position to verify "the truthfulness and the
correctness of the allegations in the Petition. " Thus, Fuji substantially complied with
the requirements of verification and certification against forum shopping. (Fuji
Television Network, Inc. vs. Espiritu, G.R. No. 204944-45, December 3, 2014)
d. Effect of the signature of counsel in a pleading
The signature of counsel constitutes a certificate by him that he has read the
pleading; that to the best of his knowledge, information, and belief there is good
ground to support it; and that it is not interposed for delay. (par. 2, Rule,7 Sec. 3.)
4. Allegations in a pleading (Rule 8)
a. Manner of making allegations
Rule 8, Sec. 1. In general. Every pleading shall contain in a methodical and logical
form, a plain, concise and direct statement of the ULTIMATE FACTS on which the
party pleading relies for his claim or defense, as the case may be, omitting the
statement of mere evidentiary facts.
(1) Condition precedent
In any pleading a general averment of the performance or
occurrence of all conditions precedent shall be sufficient. (Rule 8,
Sec. 3.)
(2) Fraud, mistake, malice, intent, knowledge and other condition of
the mind, judgments, official documents or acts
Rule 8, Sec. 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,
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knowledge or other condition of the mind of a person may be

averred GENERALLY.
b. Pleading an actionable document
Rule, 8, Sec. 7. Action or defense based on document.
Whenever an action or defense is based upon a written instrument or document,
the actionable document shall be pleaded by setting forth:
1. The substance of such document in the pleading and attaching
the original or copy thereof as an exhibit
2. Said document copied verbatim in the pleading (Sec. 7, Rule 8).
c. Specific denials
Rule 8, Sec. 10. Specific denial.
A defendant must specify each material allegation of fact the truth of which he
does not admit and, whenever practicable, shall set forth the substance of the
matters upon which he relies to support his denial. Where a defendant desires to
deny only a part of an averment, he 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 in the complaint, he shall so state, and this shall have the effect
of a denial.
(1) Effect of failure to make specific denials
Rule 8, Sec. 11. Allegations not specifically denied deemed admitted.
Material averments in the complaint, other than those as to the amount of
unliquidated damages, shall be deemed admitted when not specifically denied.
Allegations of usury in a complaint to recover usurious interest are deemed
admitted if not denied under oath.
N.B. If the allegations are deemed admitted, there is no more triable issue
between the parties and if the admissions appear in the answer of the defendant,
the plaintiff may file a motion for judgment on the pleadings under Rule 34
(2) When a specific denial requires an oath
Rule 8, Sec. 8. How to contest such documents.
When an action or defense is founded upon a written instrument (like a promissory
note which is the basis of a complaint for collection of sum of money) , copied in
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 claims to be the facts;
but the requirement of an oath does not apply (a) when the adverse party does
not appear to be a party to the instrument or (b) when compliance with an order
for an inspection of the original instrument is refused.
5. Effect of failure to plead (Rule 9)
1. Failure to plead defenses and objections (implied admissions)
Defenses not pleaded in a motion to dismiss or in the answer are deemed
WAIVED.
Exceptions:
These defenses may be raised at any stage of the proceedings even for the first
time on appeal:
1. Lack of jurisdiction over the subject matter (Note: This may,
however, be barred by laches - Tijam v. Sibonghanoy, G.R. No. L-
21450, April 15, 1968)
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2. Litis pendentia
3. Res judicata
4. Prescription (LLRP) (Rule 9, Sec. 1) Relate to omnibus motion rule
(Rule 15, Sec. 8)
Laches need not be specifically pleaded and may be considered by the court
on its own initiative in determining the rights of the parties. (Heirs of Valientes v.
Ramas, G.R. No. 157852; December 15, 2010)
2. Failure to plead a compulsory counterclaim and cross-claim
Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred.
A compulsory counterclaim, or a cross-claim, not set up shall be barred.
6. Default (Rule 9, Sec. 3)
a. When a declaration of default is proper
What are the grounds for the declaration of default?
a) Failure of a defending party to answer within the time allowed
(Rule 9, Sec. 3). This includes failure to answer a complaint, permissive
counterclaim, cross-claim, third-party complaint, etc.
b) Willful failure to appear before an officer to make a deposition,
after being served with a proper notice, or failure to serve answers
after proper service of interrogatories (Rule 29, Sec. 3)
c) Failure to appear at pre-trial (Rule 18, Sec. 5)
NOTE:
1. A declaration of default cannot be made by the court motu
proprio; there must be a motion to that effect (The Philippine British
Co., Inc. vs. De Los Angeles, 63 SCRA 50 [1975]).
2. If no motion to declare defendant in default is filed, the complaint
should be dismissed for failure to prosecute.
3. A defendants answer should be admitted where it had been filed
before it was declared in default, and no prejudice is caused to
plaintiff (Indiana Aerospace University vs. CHED. 356 SCRA 367 [2001])
b. Effect of an order of default
a. A party in default LOSES HIS STANDING in court. He cannot appear
therein, adduce evidence and be heard nor take part in trial. He
cannot file a motion to dismiss without first filing a motion to set aside
the order of default. He loses his right to present evidence, control
the proceedings and examine the witnesses or object to plaintiffs
evidence.
b. A motion to declare the defending party in default should be
served upon him. A party in default, however, shall be entitled to
NOTICE of subsequent proceedings but not to take part in the trial.
c. Being declared in default does not constitute a waiver of all rights.
What is waived is only the RIGHT TO BE HEARD and to PRESENT
EVIDENCE during trial while default prevails. A party in default is still
entitled to notice of final judgments and orders and proceedings
taken subsequent thereto. He may be cited and testify as a witness.
d. A party VALIDLY declared in default irreparably loses the right to
participate in the trial. A defendant IMPROVIDENTLY declared in
default may retain and exercise such right to participate in the trial
after the order of default and the subsequent judgment by default
are annulled and the case remanded to the court of origin. The
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former can only appeal. The latter may file a petition for certiorari
(Indiana Aerospace University vs. CHED, supra).
c. Relief from an order of default
Summary of the Remedies in Default
a. From notice of the order of default but BEFORE JUDGMENT
(1) motion to set aside order of default under Rule 9, Sec. 3(b)
(2) in a proper case, petition for certiorari under Rule 65.
b. AFTER JUDGMENT BUT BEFORE FINALITY
(1) motion for reconsideration under Rule 37, Section 1
(2) motion for new trial under Rule 37, Section 1
(3) appeal under Rule 41, Section 1
c. AFTER FINALITY OF JUDGMENT
(1) petition for certiorari under Rule 65
(2) petition for relief from judgment under Rule 38
(3) petition for annulment of judgment under Rule 47.
d. Effect of a partial default
Rule 9, Section 3(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.
e. Extent of relief
Two (2) kinds of Proceedings after Declaration of Default and the Extent of Relief
that may be Granted
(a) Without hearing
The Court may immediately render judgment granting the claimant
such relief as his pleading may warrant. Such relief however shall not
exceed the amount or be different in kind from that prayed for nor
award unliquidated damages. (Rule 9, Sec. 3)
(b) With Hearing
The Court may, in its discretion, allow or require the claimant to submit
evidence. Such reception of evidence may be delegated to the
Clerk of Court. After the reception of claimants evidence, the court
may render judgment granting the reliefs prayed for as established
by the evidence. It may also award unliquidated damages without
exceeding the amounts prayed for. (Rule 9, Sec. 3)
f. Actions where default is not allowed
a. Action for declaration of nullity of marriage; action for annulment
of marriage; action for legal separation (Rule 9, Sec. 3 [e])
NOTE: If the defending party fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a collusion exists
between the parties, and if there is no collusion, to intervene for the
State in order to see to it that the evidence submitted is not
fabricated.
b. Actions governed by the Rule on Summary Procedure and Rule of
Procedure for Small Claims Cases, where a motion to declare
defendant in default is not allowed.
c. Special civil actions of certiorari, prohibition and mandamus where
comment instead of an answer is required to be filed.
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7. Filing and Service of pleadings (Rule 13)

I. Payment of docket fees
What are the rules on payment of docket fees?
Manuel Uy Po Tiong filed complaint with RTC QC against Sun Insurance Office Ltd.
for refund of premiums, with damages that can be inferred from body of
complaint to be around P50M, but paid only P210 as docket fee. Later re-
amended complaint and supplemental complaint total claim of P64,601. Paid
total docket fee of P182,824. But petitioner claims he should pay P257,810.
Ruling:
a. Amount of damages prayed for should be specified not only in the
body of the pleading but also in the prayer, and said damages shall
be considered in the assessment and payment of filing fees.
b. It is not simply the filing of complaint or initiatory pleading but also
payment of prescribed docket fee that vests a trial court with
jurisdiction over subject matter or nature of the action.
c. Without payment of correct docket fee, no original complaint or
similar pleading is considered filed. Hence, amendment of such
complaint of similar pleading, or payment of docket fee based on
the amounts sought in the amended pleading will not vest jurisdiction
in the court.
d. Where the filing of the initiatory pleading is not accompanied by
payment of the docket fee, the court may allow payment of
deficient docket fee within a reasonable period but not beyond the
applicable prescriptive or reglementary period. Conclusion: if the
complete amount of docket fee is not paid, prescriptive period
continues to run as the complaint is deemed not filed.
e. The same rule applies to permissive counterclaims, third party
claims and similar pleadings, which shall not be considered filed
unless the filing fee is paid.
Where the trial court acquires jurisdiction over a claim by the filing of the
appropriate pleading and payment of the prescribed filing fee but, subsequently,
the court awards a claim not specified in the pleadings, such as damages arising
after the filing of the complaint or similar pleading, the additional filing fee therefor
shall constitute a lien on the judgment. (Sun Insurance Office, Ltd. vs. Asuncion,
170 SCRA 274 (1989) , reiterated in Tacay vs. RTC of Tagum, Davao del Norte, 180
SCRA 433 (1989) and Heirs of Bertuldo Hinog vs. Melicor, 455 SCRA 460 (2005) ).
II. Filing versus service of pleadings
What is filing?
It is the act of PRESENTING the pleading or other paper to the clerk of court (Rule
13, Sec.2)
What is service?
It is the act of PROVIDING A PARTY WITH A COPY of the pleading or paper
concerned. If any party has appeared by counsel, service upon him shall be
made upon his counsel or one of them, unless service upon the party himself is
ordered by the court. When a party is represented by counsel, service of notice
should be made upon counsel and not upon the party, unless service upon the
party himself is ordered by the court. (Rule 13, Sec. 2).
May a pleading be filed by ordinary mail?
No. Pleadings may only be filed personally or by registered mail. (Rule 13, Sec. 3)
What papers are required to be filed and served?
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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 13, Sec.4).
III. Periods of filing of pleadings (Rule 11)
30 days 15 days 10 days
1. Answer the 1. Answer to amended

to
complaint. complaint (NOT a matter of
right)
2. Answer to amended
Answer of a defendant
complaint (matter of 2. Answer to counterclaim
foreign private juridical or cross-claim
right)
entity.
3. Answer to third 3. Answer to supplemental
(fourth, etc.) - party complaint.
complaint. 4. Reply.
within fifteen (l5) days after service of

Answer to the complaint. summons, unless a different period is fixed
by the court.
Answer of a defendant foreign (30) days after receipt of summons by

private juridical entity. such entity
Answer to amended complaint within fifteen (l5) days after being served
(matter of right) with a copy thereof
ten (10) days from notice of the order

admitting the same. (An answer earlier
Answer to amended complaint
filed may serve as the answer to the
(NOT a matter of right)
amended complaint if no new answer is
filed.)
Answer to counterclaim or cross-

ten (l0) days from service
claim.
same rule as the answer to the complaint

Answer to third (fourth, etc.) - party (within fifteen (l5) days after service of
complaint. summons, unless a different period is fixed
by the court.)
within ten (l0) days from service of the

Reply.
pleading responded to
ten (10) days from notice of the order

Answer to supplemental complaint. admitting the same, unless a different
period is fixed by the court.
* Upon motion and on such terms

as may be just, the court may
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extend the time to plead provided

in these Rules.
* The court may also, upon like

terms, allow an answer or other
pleading to be filed after the time
fixed by these Rules
IV. Manner of filing

Rule 13, Sec. 3. Manner of filing. The FILING of pleadings, appearances, motions,
notices, orders, judgments and all other papers shall be made by presenting the
original copies thereof, plainly indicated as such, personally to the clerk of the
court or by sending them by registered mail. In the first case, the clerk of court
shall endorse on the pleading the date and hour of filing. In the second case, the
date of the mailing of motions, pleadings, or any other papers or payments or
deposits, as shown by the post office stamp on the envelope or the registry
receipt, shall be considered as the date of their filing, payment, or deposit in
court.
V. Modes of service (Rule 13, Sec. 5)
Service of pleadings, motions, notices, orders, judgments and other papers shall
be made either PERSONALLY or by MAIL.
(1) Personal service
Rule 13, Sec. 6. Personal service. Service of the papers may be made by delivering
personally a copy to the party or his counsel, or by leaving it in his office with his
clerk or with a person having charge thereof.
If no person is found in his office, or his office is not known, or he has no office,
then by leaving the copy, between the hours of eight in the morning and six in
the evening, at the party's or counsel's residence, if known, with a person of
sufficient age and discretion then residing therein.
(2) Service by mail
Rule 13, Sec. 7. Service by mail.
Service by registered mail shall be made by depositing the copy in the post office,
in a sealed envelope, plainly addressed to the party or his counsel at his office, if
known, otherwise at his residence, if known, with postage fully pre-paid, and with
instructions to the postmaster to return the mail to the sender after ten (l0) days if
undelivered. If no registry service is available in the locality of either the sender or
the addressee, service may be done by ordinary mail. (5a)
May service be done by ordinary mail?
Yes. Service may be done either by registered or ordinary mail.
(3) Substituted service
Rule 13, Section 8. Substituted Service. If service of pleadings, motions, notices,
resolutions, orders and other papers cannot be made under the two preceding
sections (personal service and service by mail) , the office and place of residence
of the party or his counsel being unknown, service may be made by delivering
the copy to the clerk of court, with proof of failure of both personal service and
service by mail. The service is complete at the time of such delivery.
(4) Service of judgments, final orders or resolutions
Rule 13, Sec. 9. Service of judgments, final orders or resolutions.
Judgments, final orders or resolutions shall be served either personally or by
registered mail. When a party summoned by publication has failed to appear in
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the action, judgments, final orders or resolutions against him shall be served upon
him also by publication at the expense of the prevailing party.
(5) Priorities in modes of service and filing
Rule 13, Sec. 11. Priorities in modes of service and filing.
Whenever practicable, the service and filing of pleadings and other papers shall
be done PERSONALLY. Except with respect to papers emanating from the court,
a resort to other modes must be accompanied by a written explanation why the
service or filing was not done personally. A VIOLATION OF THIS RULE MAY BE CAUSE
TO CONSIDER THE PAPER AS NOT FILED.
Rule 13, Sec. 11 requires personal service of petitions and other pleadings. This is
the general rule, while recourse to alternative modes of service and filing is the
exception.
Where recourse is made to the exception, a written explanation of why personal
service was not effected is indispensable, even when such explanation by its
nature is acceptable and manifest. Where no explanation is offered to justify
resort to other modes, the court may expunge the pleading. (Zulueta vs. Asia
Brewery, Inc., G.R. No. 138137, March 8, 2001)
(6) When service is deemed complete
Rule 13, Sec. 10. Completeness of service.
Personal service is complete upon actual delivery. Service by ordinary mail is
complete upon the expiration of ten (10) days after mailing, unless the court
otherwise provides. Service by registered mail is complete upon actual receipt by
the addressee, or after five (5) days from the date he received the first notice of
the postmaster, whichever date is earlier.
When service is deemed complete
1. PERSONAL SERVICE - Upon actual delivery
2. ORDINARY MAIL- Upon expiration of 10 days after mailing
3. REGISTERED MAIL - Upon actual receipt by the addressee OR five
(5) days from the date he received first notice from postmaster
4. SUBSTITUTED SERVICE- At the time of such delivery of the copy to
the clerk of court
(7) Proof of filing and service
Rule 13, Sec. 12. Proof of filing.
The FILING of a pleading or paper shall be proved by its existence in the record of
the case. If it is not in the record, but is claimed to have been filed PERSONALLY,
the filing shall be proved by the written or stamped acknowledgment of its filing
by the clerk of court on a copy of the same;
if filed by REGISTERED MAIL, by the registry receipt and by the affidavit of the
person who did the mailing, containing a full statement of the date and place of
depositing 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) days if not delivered.
Rule 13, Sec. 13. Proof of service.

Proof of PERSONAL SERVICE shall consist of a (a) written admission of the party
served, or (b) official return of the server, or (c) affidavit of the party serving,
containing a full statement of the date, place and manner of service. If the
service is by ORDINARY MAIL, proof thereof shall consist of an affidavit of the
person mailing of facts showing compliance with section 7 of this Rule. If service is
made by REGISTERED MAIL, proof shall be made by such affidavit and the registry
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receipt issued by the mailing office. The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter
together with the certified or sworn copy of the notice given by the postmaster
to the addressee.
What is a notice of lis pendens?
It is a notice of the pendency of a real action which the plaintiff or defendant
may record in the office of the register of deeds where the property subject of
the action is situated.
What is the purpose of a notice of lis pendens?
To serve as constructive notice to those not parties to the case that the real
property is the subject of a pending litigation (Rule 13, Sec. 14)
8. Amendment Amended and Supplemental Pleadings (Rule10)
Amendments in general (See below)
a. Amendment as a matter of right
Rule 10, Sec. 2. Amendments as a matter of right.
A party may amend his pleading once as a matter of right at any time BEFORE a
responsive pleading is served or, in the case of a reply, at any time within ten (l0)
days after it is served.
NOTES:
1. The filing by the defendant of a motion to dismiss does not affect
the plaintiffs right to amend his complaint without first securing leave
of court because a motion to dismiss is NOT a responsive pleading.
2. Leave of court is necessary AFTER the filing of a responsive
pleading. However, even substantial amendments may be made
under this Rule.
3. But such leave may be refused, if it appears to the court that the
motion was made with intent to delay.
b. Amendments by leave of court
Rule 10, Sec. 3. Amendments by leave of court.
Except as provided in the next preceding section, substantial amendments may
be made only upon leave of court. But such leave may be refused if it appears
to the court that the motion was made with intent to delay. Orders of the court
upon the matters provided in this section shall be made upon (a) motion filed in
court, and after (b) notice to the adverse party, and an (c) opportunity to be
heard.
c. Formal amendment
Rule 10, Sec. 4. Formal amendments.
A defect in the designation of the parties and other clearly clerical or
typographical errors may be summarily corrected by the court at any stage of
the action, at its initiative or on motion, provided no prejudice is caused thereby
to the adverse party.
d. Amendments to conform to or authorize presentation of evidence
Rule 10, Sec. 5. Amendment to conform to or authorize presentation of evidence.
When issues not raised by the pleadings are tried with the express or implied
consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the pleadings as may be necessary
to cause them to conform to the evidence and to raise these issues may be made
upon motion of any party at ANY TIME, even after judgment; but failure to amend
does not affect the result of the trial of these issues. If evidence is OBJECTED to at
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the trial on the ground that it is not within the issues made by the pleadings, the
court may allow the pleadings to be amended and shall do so with liberality if the
(a) presentation of the MERITS of the action and the (b) ends of SUBSTANTIAL
JUSTICE will be subserved thereby. The court may grant a continuance to enable
the amendment to be made.
Amendments to Conform to or Authorize Presentation of Evidence
When issues not raised by the pleadings are tried with the express or implied
consent of the parties
1. They shall be treated in all respects as if they had been raised in
the pleadings;
2. Such amendment of the pleadings as may be necessary to cause
them to conform to the evidence may be made upon motion of any
party at any time, even after judgment;
3. BUT failure to amend does NOT affect the result of the trial of these
issues.
If evidence is objected to at the trial on the ground that it is not within the issues
made by the pleadings
1. The court may allow the pleadings to be amended;
2. It shall do so with liberality if the presentation of the merits of the
action and the ends of substantial justice will be subserved thereby;
3. The court may grant a continuance to enable the amendment to
be made.
e. Different from supplemental pleadings
Rule 10, Section 1. Amendments in general.
Pleadings may be amended by (a) adding or striking out an allegation or the
name of any party, or by (b) correcting a mistake in the name of a party or a
mistaken or inadequate allegation or description in any other respect, so that the
actual merits of the controversy may speedily be determined, without regard to
technicalities, and in the most expeditious and inexpensive manner.
Rule 10, Sec. 6. Supplemental pleadings.
Upon motion of a party the court may, upon reasonable notice and upon such
terms as are just, permit him to serve a supplemental pleading setting forth
transactions, occurrences or events which have happened since the date of the
pleading sought to be supplemented. The adverse party may plead thereto
within ten (10) days from notice of the order admitting the supplemental
pleading.
NOTES:
1. The adverse party may plead thereto within ten (10) days from
notice of the order admitting the supplemental pleading. The answer
to the complaint shall serve as the answer to the supplemental
complaint if no new or supplemental answer is filed.
2. A supplemental pleading incorporates matters arising AFTER the
filing of the complaint. A supplemental pleading is always filed with
leave of court. It does not result in the withdrawal of the original
complaint.
f. Effect of amended pleading
Rule 10, Sec. 8. Effect of amended pleadings.
An amended pleading SUPERSEDES the pleading that it amends. However,
admissions in superseded pleadings may be received in evidence against the
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pleader; and claims or defenses alleged therein not incorporated in the

amended pleading shall be deemed waived.
What happens to the admissions in the original pleading?
They cease to be judicial admissions. Thus, they are to be considered as
extrajudicial admissions and may be proved by the party relying thereon by
formal offer in evidence of such original pleading. (Ching vs. CA, G.R. No. 110844,
April 27, 2000)
F. Summons (Rule 14)
1. Nature and purpose of summons in relation to actions in personam, in rem and
quasi in rem
Contents. -The summons shall be directed to the defendant, signed by the clerk
of court under seal, and contain:
(a) the name of the court and the names of the parties to the action;
(b) a direction that the defendant answer within the time fixed by
these Rules;
(c) a notice that unless the defendant so answers, plaintiff will take
judgment by default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad litem, if any,
shall be attached to the original and each copy of the summons. (Rule 14, Sec.
2)
SUMMONS is a writ by which the defendant is notified of the action brought
against him. Service of such writ is the means by which the court may acquire
jurisdiction over his person.
NON-SERVICE OR IRREGULAR SERVICE OF SUMMONS may be a ground for dismissal
for lack of jurisdiction over the person of the defending party.
What is the effect of lack of summons?
The trial court does not acquire jurisdiction and renders NULL AND VOID all
subsequent proceedings and issuances in the actions from the order of default
up to and including the judgment by default and the order of execution.
However, lack of summons may be WAIVED as when the defendant fails to make
any seasonable objection to the courts lack of jurisdiction over the person of the
defendant.
Summons May be Served ONLY by
1. Sheriff;
2. Sheriffs deputy; or
3. Other proper court officers; or
4. For justifiable reasons, by any suitable person authorized by the
court issuing the summons (Rule 14, Sec. 3)
ALIAS SUMMONS one issued by the clerk of court on demand of the plaintiff when
the original summons was returned without being served on any or all of the
defendants, or when summons has been lost. When issued, it supersedes the first
summons.
2. Voluntary appearance
Rule 14, Sec. 20. Voluntary appearance. The defendant's voluntary appearance
in the action shall be equivalent to service of summons. The inclusion in a motion
to dismiss of other grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance.
Voluntary appearance cures the defect in the service of summons.
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Exc.: Special appearance in court to challenge its jurisdiction over the person of
the defendant and the inclusion in a motion to dismiss of other grounds shall not
be deemed a voluntary appearance (La Naval Drug Corp. vs. CA, G.R. No.
103200, August 31, 1994).
SUMMONS
Modes of Service of Summons
There are four (4) modes of serving summons:
1) personal service;
2) substituted service;
3) constructive service (by publication) ; and
4) extraterritorial service.
What are the purposes of summons?
1. Actions in personam
a. To acquire jurisdiction over the person of the defendant; and
b. To give notice to the defendant that an action has been
commenced against him (Umandap vs. Sabio, Jr., G.R. No.
140244,August 29, 2000)
2. Actions in rem and quasi in rem not to acquire jurisdiction over the defendant
but mainly to satisfy the constitutional requirement of due process (Gomez vs. CA,
G.R. No. 127692,March 10, 2004).
3. Personal service
Rule 14, Sec. 6. Service in person on defendant.
Whenever practicable, the summons shall be served by HANDING a copy thereof
to the defendant in person, or, if he refuses to receive and sign for it, by
TENDERING it to him.
If there are two (2) or more defendants, each one of them should be served a
copy of the summons and the complaint (Bello vs. Ubo, 117 SCRA 91 [1982])
4. Substituted service
Rule 14, Sec. 7
If for justifiable causes, the defendant cannot personally be served with summons
within a reasonable time, service may be effected:
1) by leaving copies of the summons at the defendants RESIDENCE
with some person of suitable age and discretion then residing therein,
or
2) by leaving the copies at the defendants OFFICE or regular place
of business with some competent person in charge thereof.
In substituted service, it is immaterial that the defendant does not in fact receive
actual notice. This will not affect the validity of the service.
For substituted service to be justified, the following circumstances must be clearly
established: (a) personal service of summons within a reasonable time was
impossible; (b) efforts were exerted to locate the party; and (c) the summons was
served upon a person of sufficient age and discretion residing at the party’s
residence or upon a competent person in charge of the party’s office or place of
business. Failure to do so would invalidate all subsequent proceedings on
jurisdictional grounds (Robinson vs. Miralles, G.R. No. 163584, December 12, 2006)
For substituted service of summons to be available, there must be several
attempts by the sheriff to personally serve the summons within a reasonable
period [of one month] which eventually resulted in failure to prove impossibility of
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prompt service. Several attempts means at least three (3) tries, preferably on at
least two different dates. In addition, the sheriff must cite why such efforts were
unsuccessful. It is only then that impossibility of service can be confirmed or
accepted. (Manotoc vs. Court of Appeals, G.R. No. 130974, August 16, 2006, 499
SCRA 21)
If diligent efforts were undertaken by the Sheriff to serve summons upon the
defendant but he was PREVENTED from effecting such service by the DEFENDANT
HIMSELF, summons shall be deemed PROPERLY served and that the court has
acquired jurisdiction over the person of the defendant. (Robinson v. Miralles,
supra)
To warrant the substituted service of the summons and copy of the complaint, the
serving officer must first attempt to effect the same upon the defendant in person.
Only after the attempt at personal service has become futile or impossible within
a reasonable time may the officer resort to substituted service. Petitioners
insistence on personal service by the serving officer was demonstrably
superfluous. They had actually received the summonses served through their
substitutes, as borne out by their filing of several pleadings in the RTC, including
an answer with compulsory counterclaim ad cautelam and a pre-trial brief ad
cautelam. They had also availed themselves of the modes of discovery available
under the Rules of Court. Such acts evinced their voluntary appearance in the
action. (Macasaet vs. Co, G.R. No. 156759, June 05, 2013) - LPB
Defendants filing of a motion for resetting of the hearing of the motion for
execution effectively cured the defect of the substituted service of summons.
Although the substituted service of summons on defendant is patently defective
as the sheriffs return does not contain any statement with regard to the
impossibility of personal service, said defect was cured by his voluntary
appearance therein. An appearance in whatever form without expressly
objecting to the jurisdiction of the court over the person, is a submission to the
jurisdiction of the court over the person of the defendant or respondent. (Cezar
vs. Ricafort-Bautista, G.R. No. 136415,. October 31, 2006. )
In a proceeding in rem or quasi in rem , jurisdiction over the person of the
defendant is not a prerequisite to confer jurisdiction on the court provided that
the court acquires jurisdiction over the res. Nonetheless, summons must be served
upon the defendant not for the purpose of vesting the court with jurisdiction but
merely for satisfying the due process requirements. A resident defendant who
does not voluntarily appear in court, must be personally served with summons as
provided under Section 6, Rule 14 of the Rules of Court. (Biaco vs. Philippine
Countryside Rural Bank, G.R. No. 161417, February 8, 2007, 515 SCRA 106.)
5. Constructive service (by publication)
a. Service upon a defendant where his identity is unknown or where his
whereabouts are unknown
Rule 14, Sec. 14. Service upon defendant whose identity or whereabouts are
unknown. In ANY ACTION where the defendant is designated as an unknown
owner, or the like, or whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry, service may, by leave of court, be effected upon
him by publication in a newspaper of general circulation and in such places and
for such time as the court may order.
N.B. When the defendant is a resident of the Philippines, service of summons by
publication is allowed in any action, even in actions in personam.
Hence, this can be allowed in a suit for collection of sum of money, which is an in
personam action.
b. Service upon residents temporarily outside the Philippines
Rule 14, Sec. 16. Residents temporarily out of the Philippines.
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When any action is commenced against a defendant who ordinarily resides

within the Philippines, but who is temporarily out of it, service may, by leave of
court, be also effected out of the Philippines, as under the preceding section.
In ANY suit against a resident of the Philippines temporarily absent from the
country, the defendant may be served by SUBSTITUTED service because he still
leaves a definite place of residence where he is bound to return.
In addition, EXTRATERRITORIAL service [by personal service effected out of the
Philippines OR by publication in a newspaper of general circulation in such places
and for such time as the court may order] MAY be resorted to WITH LEAVE OF
COURT.
6. Extra-territorial service, when allowed
Rule 14, Sec. 15. Extraterritorial service.
Extraterritorial service of summons is allowed where the action is against a NON-
RESIDENT DEFENDANT who is NOT FOUND in the Philippines and the action:
1) affects the personal status of plaintiffs;
2) relates to or subject of which is property in the Philippines (real or
personal) , in which the defendant has claim, lien or interest, actual
or contingent; or
3) in which relief demanded consists wholly, or in part, in excluding
the defendant from any interest therein; or
4) property of defendant has been attached within the Philippines
A filed a complaint to collect a loan from B, who is a resident of Singapore. May
extraterritorial service of summons be effected?
No, since the action is in personam. However, if A attaches property of B in the
Philippines, the attachment would convert As action into one quasi in rem.
Extraterritorial service may then be effected.
To be effective, extraterritorial service of summons must be with LEAVE OF COURT
and only through any of the following means:
1. Personal service;
2. By publication (and copy of the summons and order of the court
must be sent by registered mail to the last known address) ;
3. Any other manner which the court may deem sufficient. (Rule 14,
Sec. 15).
*** May summons be validly served by telefax or email?
Yes. Extraterritorial service may be in any other manner the court may deem
sufficient.
NOTE:
a. The three modes of service of summons upon a non-resident must
be made OUTSIDE the Philippines, such as through the Philippine
Embassy in a country where defendant resides (Valmonte vs. CA, 252
SCRA 92 [1996]).
b. Service of summons on husband is not binding on wife who is a
non-resident (ibid.)
Gemperle v. Shenker (G.R. No. L-18164, January 23, 1967) (In contrast
to Valmonte): The lower court had acquired jurisdiction over
defendant husband, through service of the summons addressed to
him upon his wife, Mrs. Schenker, it appearing from said answer that
she is the representative and attorney-in-fact of her husband in the
aforementioned civil case, which apparently was filed at her behest,
in her representative capacity. .
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c. Substituted service or extraterritorial service of summons by leave

of court on a resident defendant who is temporarily outside of the
Philippines is valid. (Rule 14, Sec. 16).
NOTE:
a. Extraterritorial service of summons is proper only in actions in rem or quasi-in-
rem. this is so because in in rem and quasi in rem actions, jurisdiction over the
person of the defendant is not a pre-requisite to confer jurisdiction on the court
provided that the court acquires jurisdiction over the res.
In rem action against the thing itself instead of against the person
Quasi in rem individual is named as defendant since the purpose of the
proceeding is to subject his interest therein to the obligation or loan burdening
the property.
b. Any relief granted in in rem or quasi in rem actions must be confined to the res,
and the court cannot lawfully render a personal judgment against the defendant.
c. Where the action is in personam, such as where the plaintiff seeks to recover
damages for the alleged commission of an injury to the person or property of the
plaintiff, personal, or if not possible, substituted service of summons, and NOT
EXTRATERRITORIAL SERVICE, is necessary to confer jurisdiction upon the person of
defendant (Banco do Brasil vs. CA, June 16, 2000).
Extraterritorial Service only applies to action in rem or quasi in rem, but not if an
action is in personam. The complaint to declare the loan and Hedging Contracts
between the parties void with a prayer for damages is an action in personam.
Therefore Section 15 is inapplicable. However, the Court ruled that the petitioner,
by seeking affirmative reliefs from the trial court, is deemed to have voluntarily
submitted to the jurisdiction of the said court. A party cannot invoke the
jurisdiction of a court to secure affirmative relief against his opponent and after
obtaining or failing to obtain such relied, repudiate or question that same
jurisdiction. (NM Rothschild & Sons (Australia) Limited v. Lepanto Consolidated
Mining Company, G.R. No. 175799, November 28, 2011)
Can summons be served by mail?
NO. It cannot be served by mail but it can be done as a complementary to
service of summons by publication, but it does not mean that service by
registered mail alone would suffice. (Regalado, Remedial Law Compendium, Vol.
I, p. 242, 2005 ed)
7. Service upon prisoners and minors
Rule 14, Sec. 9. Service upon prisoners.
When the defendant is a prisoner confined in a jail or institution, service shall be
effected upon him by the officer having the management of such jail or institution
who is deemed deputized as a special sheriff for said purpose.
Rule 14, Sec. 10. Service upon minors and incompetents.
When the defendant is a minor, insane or otherwise an incompetent, service shall
be made upon him personally and on his legal guardian if he has one, or if none,
upon his guardian ad litem whose appointment shall be applied for by the
plaintiff. In the case of a minor, service may also be made on his father or mother.
Rule 14, Sec. 11. Service upon domestic private juridical entity. When the
defendant is a corporation, partnership or association organized under the laws
of the Philippines with a juridical personality, service may be made on the
president, managing partner, general manager, corporate secretary, treasurer,
or in house counsel.
Service on domestic private juridical entity
Service may be made on the:
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a. president
b. managing partner
c. general manager
d. corporate secretary
e. treasurer, or
f. in-house counsel.
Service on an agent of the corporation is not permitted. The designation of
persons or officers who are authorized to accept summons for a domestic
corporation is limited and more clearly specified. The rule states general manager
instead of only manager, corporate secretary instead of secretary and treasurer
instead of cashier.
Service of summons upon the Branch Manager of petitioner at its branch office in
Cagayan de Oro City instead of upon the general manager at its principal office
in Davao City is improper. Consequently, the trial court did not acquire jurisdiction
over the person of the petitioner. Any proceeding undertaken by the trial court
will consequently be null and void (E. B. Villarosa & Partner Co., Ltd. vs. Benito, 312
SCRA 65 [1999]).
Clearly, the summons was not served personally on the defendant (respondent)
through any of the officers enumerated in Section 11 of Rule 14; rather, summons
was served by substituted service on the defendants staff member, Romel
Dolahoy. Substituted service was resorted to on the servers first attempt at service
of summons, and there was no indication that prior efforts were made to render
prompt personal service on the defendant. (B. D. Long Span Builders, Inc. vs. R. S.
Ampeloquio Realty Development, Inc., G.R. No. 169919, September 11, 2009.
Service upon foreign private juridical entity (Rule 14, Sec. 12). When the
defendant is a foreign private juridical entity which has transacted business in the
Philippines, service may be made on its resident agent designated in accordance
with law for that purpose, or, if there be no such agent, on the government official
designated by law to that effect, or on any of its officers or agents within the
Philippines. If the foreign private juridical entity is not registered in the Philippines
or has no resident agent, service may, with leave of court, be effected out of the
Philippines through any of the following means:
a) By personal service coursed through the appropriate court in the
foreign country with the assistance of the Department of Foreign
Affairs;
b) By publication once in a newspaper of general circulation in the
country where the defendant may be found and by serving a copy
of the summons and the court order by registered mail at the last
known address of the defendant;
c) By facsimile or any recognized electronic means that could
generate proof of service; or
d) By such other means as the court may in its discretion direct. (As
amended by A.M. No. 11-3-6-SC, March 15, 2011)
This will be allowed only if there are well-pleaded allegations of having transacted
or doing business in the Philippines.
The fact of DOING BUSINESS in the Philippines must be established by appropriate
allegations in the complaint. The court need not go beyond the allegations of the
complaint in order to determine whether it has jurisdiction.
A determination that the foreign corporation is doing business is only tentative
and is made only for the purpose of enabling the local court to acquire jurisdiction
over the foreign corporation through service of summons pursuant to Rule 14,
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Section 12. Such determination does not foreclose a contrary finding should
evidence later show that it is not transacting business in the country.
Rule 14, Sec. 13. Service upon public corporations. When the defendant is the
Republic of the Philippines service may be effected on the Solicitor General.
When the defendant is the Republic of the Philippines, service may be effected
on the Solicitor General. The DPWH and its regional office are merely agents of
the Republic which is the real party in interest. Hence, the summons should have
been directed to the Republic through the OSG. Since the lower court was not
able to send summons to the OSG, it was not able to acquire jurisdiction over the
Republic. Therefore, the proceedings before the trial court and its decision are
hereby declared void. (Republic of the Philippines v. Alberto A. Domingo, G.R. No.
175299; September 14, 2011)
8. Proof of service
Rule 14, Sec. 18. Proof of service.
The proof of service of a summons shall be made in writing by the server and shall
set forth the manner, place, and date of service; shall specify any papers which
have been served with the process and the name of the person who received
the same; and shall be sworn to when made by a person other than a sheriff or
his deputy.
Rule 14, Sec. 19. Proof of service by publication.
If the service has been made by publication, service may be proved by the
affidavit of the printer, his foreman or principal clerk, or of the editor, business or
advertising manager, to which affidavit a copy of the publication shall be
attached, and by an affidavit showing the deposit of a copy of the summons and
order for publication in the post office, postage prepaid, directed to the
defendant by registered mail to his last known address.
G. Motions (Rule 15)
1. Motions in general
a. Definition of a motion
Rule 15, Section 1. Motion defined.
A motion is an application for relief other than by a pleading.
b. Motions versus pleadings
Rule 6, Section 1. Pleadings defined.
Pleadings are the written statements of the respective claims and
defenses of the parties submitted to the court for appropriate
judgment.
c. Contents and form of motions
Rule 15, Sec. 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.
Rule 15, Sec. 3. Contents.
A motion shall state the (a) relief sought to be obtained and the (b)
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.
d. Notice of hearing and hearing of motions - HNP
Rule 15, Sec. 4. Hearing of motion.
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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.
Rule 15, 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.
Rule 15, Sec. 6. Proof of service necessary. No written motion set for hearing shall
be acted upon by the court without proof of service thereof.
> e. Omnibus motion rule
Rule 15, Sec. 8. Omnibus motion.
Subject to the provisions of section 1 of Rule 9, a MOTION attacking a pleading,
order, judgment, or proceeding shall include all objections then available, and all
objections not so included shall be deemed WAIVED.
Gen. Rule: All available grounds for objection in attacking a pleading, order,
judgment, or proceeding [POJP] should be invoked at one time; otherwise, they
shall be deemed waived
Exc. The court may dismiss the case motu proprio based on:
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia
3. Res judicata; and
4. Prescription [LLRP] (Rule 9, Sec. 1)
f. Litigated and ex parte motions
Litigated motion - compliance with Rule 15 necessary. A litigious motion is one
which the court may not act upon without prejudicing the rights of the adverse
party. Ex. Motion for reconsideration, motion to dismiss, motion to declare
defendant in default, motion for execution, motion for judgment on the pleadings
and motion for summary judgment
Ex parte motions- While a motion may be allowed to be filed ex parte and is an
exception to the 3-day notice rule, it does not necessarily mean that the hearing
thereof shall be dispensed with. The court may still hear the same ex parte, that is,
in the absence of the opposing party, since the court can very well see to it that
the latter’s interests will be duly protected. An ex parte proceeding merely means
that it is taken for granted at the instance and for the benefit of one party, and
without notice to or contestation by any party adversely affected. Ex. motion for
extension of time to file answer; motion for postponement; motion for extension
of time to file record on appeal; motion to set case for pre-trial.
g. Pro-forma motions
A motion that does not comply with Rule 15, particularly Sections 4, 5 and 6
(hearing, notice of hearing, proof of service) , is a mere scrap of paper, should not
be accepted for filing and is not entitled to judicial cognizance and does not
affect any reglementary period involved for the filing of the requisite pleading.
As to Sections 4, 5, and 6, Rule 15 of the Rules of Court, they provide that the
notice of hearing shall be directed to the parties concerned, and shall state the
time and place for the hearing of the motion, are mandatory. If not religiously
complied with, they render the motion pro forma. As such, the motion is a useless
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piece of paper that will not toll the running of the prescriptive period. However,
jurisprudence such as the case of Philippine National Bank v. Paneda, 515 SCRA
639 (2007) have allowed for the liberal interpretation of such rules when there is
substantial compliance. Thus, even if the motion may be defective for failure to
address the notice of hearing of said motion to the parties concerned, the defect
was cured by the (a) courts taking cognizance thereof and the fact that the (b)
adverse party was otherwise notified (thru registered mail) of the existence of said
pleading. (Dumaguete v. Philippine Ports Authority, G.R. No. 168973; August 24,
2011)
2. Motion for Bill of Particulars (Rule 12)
Options available to the defendant upon receipt of the complaint
1. Filing of a motion for bill of particulars
2. Filing of a motion to dismiss
3. Filing of an answer to the complaint
a. Purpose and when applied for What is the purpose of a bill of particulars?
Its purpose is to aid in the preparation of a responsive pleading. An action cannot
be dismissed on the ground that the complaint is vague or indefinite (Galeon v.
Galeon, G.R. No. L-30380, Feb. 28, 1973).
It is a motion which seeks to clarify matters in the complaint which are vague,
ambiguous, or not averred with sufficient definiteness.
It applies to ANY PLEADING which in the perception of the movant contains
ambiguous allegations.
What is the nature of and procedure for a bill of particulars?
a. When filed. Before responding to a pleading. If the pleading is a
reply, the motion must be filed within ten (10) days from service.
b. Grounds. A party may move for a definite statement or for a bill of
particulars of any matter which is not averred with sufficient
definiteness or particularly to enable him properly to prepare his
responsive pleading.
The motion shall point out
1. The defects complained of;
2. The paragraphs wherein they are contained;
3. The details desired. (Rule 12, Sec. 1)
The motion must comply with the requirements for motions under Rule 15.
Otherwise, it shall be treated as a pro forma motion which shall not stop the
running of the period for filing the requisite pleading
b. Actions of the court
(1) Grant the motion, or
(2) Deny it outright, or
(3) Hold a hearing therein. (Rule 12, Sec. 2)
c. Compliance with the order and effect of noncompliance
Rule 12, Sec. 3. Compliance with order.
If the motion is GRANTED, either in whole or in part, the compliance therewith must
be effected within ten (l0) days from notice of the order, unless a different period
is fixed by the court.
The bill of particulars or a more definite statement ordered by the court may be
filed either in a separate or in an amended pleading, serving a copy thereof on
the adverse party
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What is the effect of non-compliance with order for bill of particulars?

a. If the order directing the plaintiff to submit a bill of particulars is not
complied with, or in case of insufficient compliance,
b. the court may order
c. the STRIKING OUT of the pleading or the portion thereof to which
the order was directed or,
d. MAKE SUCH ORDERS as it DEEMS JUST. (Rule 12, Sec. 4)
d. Effect on the period to file a responsive pleading

Rule 12, Sec. 5. Stay of period to file responsive pleading.
After SERVICE of the bill of particulars or of a more definite pleading, or after
NOTICE OF DENIAL of his motion, the moving party may file his responsive pleading
within the period to which he was entitled at the time of filing his motion, which
shall not be less than five (5) days in any event.
3. Motion to Dismiss (Rule 16)
Four general types of motion to dismiss under the Rules
1. Motion to dismiss before answer (Rule 16)
2. Motion to dismiss by plaintiff (Rule 17)
3. Motion to dismiss on demurrer to evidence after plaintiff has rested
his case (Rule 33)
4. Motion to dismiss appeal either in RTC (Rule 41, Sec. 13) , CA (Rule
50, Sec. 1) or SC (Rule 56, Sec. 5)
When may a court motu proprio dismiss a case?
1. When it appears from the pleadings or the evidence on record
that the following grounds for dismissal are present: lack of jurisdiction
over the subject matter; litis pendentia; res judicata and prescription
(Rule 9, Sec. 1) - LLRP
2. If for no justifiable cause, the plaintiff fails to appear on the date of
the presentation of his evidence in chief on the complaint, or to
prosecute his complaint for an unreasonable length of time, or to
comply with the Rules of Court or any order of the court (Rule 17, Sec.
3) ;and
3. After an examination of the allegations in the complaint and such
evidence attached thereto, the court may dismiss the complaint
outright on any of the grounds apparent therefrom [ex. lack of
jurisdiction] (Revised Rule on Summary Procedure, Sec. 4)
a. Grounds
What are the grounds for a motion to dismiss?(Rule 16, Section 1)
a. That the court has no jurisdiction over the person of the defending
party;
b. That the court has no jurisdiction over the subject matter of the
claim;
c. That venue is improperly laid;
d. That the plaintiff has no legal capacity to sue;
e. That there is another action pending between the same parties for
the same cause;
f. That the cause of action is barred by a prior judgment or by the
statute of limitations;
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g. That the pleading asserting the claim states no cause of action;

h. That the claim or demand set forth in plaintiffs pleading has been
paid, waived, abandoned, or otherwise extinguished;
i. That the claim on which the action is founded is unenforceable
under the provisions of the Statute of Frauds; and
j. That a condition precedent for filing the claim has not been
complied with.
NOTES:
1. The motion must comply with Rule 15. The court is without authority
to act on the motion without PROOF OF SERVICE of the notice of
hearing.
2. Waiver of defenses. Defenses and objections not pleaded whether
in a motion to dismiss or in the answer are deemed waived (Rule 9,
Sec. 1, 1st sentence).
Defenses and objections not waived even if not raised in a motion to dismiss or
answer. The court shall motu proprio dismiss the claim when it appears from the
pleadings or the evidence on record that:
a. The court has no jurisdiction over the subject matter (lack of
jurisdiction)
b. There is another action pending between the same parties for the
same cause (litis pendentia)
c. The action is barred by prior judgment (res judicata)
d. The action is barred by the statute of limitations (prescription) (Rule
9, Sec. 1, 2nd sentence). [LLRP]
Discussion of individual grounds
The court has no jurisdiction over the person of the defending party
The court has no jurisdiction over the subject matter of the claim.
The venue Is Improperly laid.
a. Venue of an action depends upon the:
(1) nature of the action
(2) residence of the parties
(3) stipulation of the parties
(4) law
b. Test to determine nature of action
The nature of the action is determined from the allegations of the complaint, the
character of the relief, its purpose and prime objective. When the prime objective
is to recover real property, it is a real action.
Plaintiff Has No Legal Capacity To Sue
a. Legal capacity to sue means that a party is not suffering from any
disability such as minority, insanity, covertures, lack of juridical
personality, incompetence, civil interdiction or does not have the
character or representation which he claims or with respect to
foreign corporation, that it is doing business in the Philippines with a
license.
b. In Pilipinas Shell Petroleum Corporation v. Dumlao, the Supreme
Court held that a person who has no interest in the estate of a
deceased person has no legal capacity to file a petition for letters of
administration. With respect to foreign corporations, the qualifying
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circumstances of plaintiffs capacity to sue being an essential

element must be affirmatively pleaded. The qualifying circumstance
is an essential part of the element of the plaintiffs capacity to sue.
The complaint must either allege that it is doing business in the
Philippines with a license or that it is a foreign corporation not
engaged in business and that it is suing in an isolated transaction.
Pendency Of Another Action Between The Same Parties
For The Same Cause (Litis Pendentia)
a. Rationale of the Rule: Like res judicata as a doctrine, litis pendentia
is a sanction of public policy against multiplicity of suits. The principle
upon which a plea of another action pending is sustained is that the
latter action is deemed unnecessary and vexatious.
b. Requisites of Litis Pendentia:
(1) Identity of parties, or at least such as representing the
same interest in both actions;
(2) Identity of rights asserted and prayed for, the relief
being founded on the same facts; and
(3) The identity on the preceding particulars should be
such that any judgment which may be rendered on the
other action will, regardless of which party is successful,
amount to res judicata in the action under
consideration.
Bar by prior judgment(Res Judicata)
a. Requisites of Res Judicata:
(1) the former judgment or order must be final;
(2) it must be a judgment or order on the merits;
(3) the court which rendered it had jurisdiction over the subject
matter and the parties; and
(4) there must be, between the first and second actions, identity of
parties, of subject matter and of cause of action.
b. Two aspects of Res Judicata
(1) Bar by Former Judgment when, between the first case where the
judgment was rendered, and the second case where the judgment
is invoked, there is identity of parties, subject matter and cause of
action.
(2) Conclusiveness of Judgment when there is an identity of parties
but not cause of action, the judgment being conclusive in the
second case only as to those matters actually and directly
controverted and determined, and not as to matters invoked
thereon.
c. A judicial compromise has the effect of res judicata and is immediately
executory and not appealable. The ultimate test in ascertaining the identity of
causes of action -- whether or not the same evidence fully supports and
establishes both the present cause of action and the former cause of action. Only
substantial, and not absolute, identity of parties is required for res judicata.
Bar by Statute of Limitations (Prescription of Actions)
An action prescribes by the lapse of time fixed in the Civil Code (Articles 1139 to
1155).
1. Eight years
a. actions to recover movables
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2. Thirty years
a. real actions over immovables
3. Ten years
a. written contract
b. obligation created by law
c. judgment
4. Six years
a. oral contract
b. quasi-contract
5. One year
a. forcible entry and unlawful detainer
b. defamation
6. Five years
All other actions whose periods are not fixed in the Civil Code or other laws
NOTES:
a. Prescription and estoppel cannot be invoked against the State
(Delos Reyes vs. CA, January 27, 1998, 285 SCRA).
b. Even if the defense of prescription has not been raised in a motion
to dismiss or an answer, if the plaintiffs complaint or evidence shows
that the action had prescribed, the action shall be dismissed. (Rule
9, Sec. 1)
c. Prescription cannot be invoked as a ground if the contract is
alleged to be void ab initio but where prescription depends on
whether contract is void or voidable, there must be a hearing.
The Claim States No Cause of Action
a. Elements of a Cause of Action
(1) a RIGHT in favor of the plaintiff by whatever means and under
whatever law it arises or is created;
(2) an OBLIGATION on the part of the named defendant to respect
or not to violate such right; and
(3) an ACT OR OMISSION on the part of such defendant violative of
the right of the plaintiff or constituting a breach of the obligation of
the defendant to the plaintiff for which the latter may maintain an
action for recovery of damages.
b. General rule: a motion to dismiss for failure to state a cause of action
HYPOTHETICALLY ADMITS the material allegations of the complaint.
Exceptions:
(1) allegations of which the court will take judicial notice are not true
(2) legally impossible facts
(3) facts inadmissible in evidence
(4) facts which appear by record or document included in the
pleadings to be unfounded
(5) matters of evidence
(6) surplusage and irrelevant matters
(7) scandalous matters
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(8) averments contradicted by more specific averments

(9) conclusions or interpretations of law
(10) allegations of fact the falsity of which is subject to judicial notice
(Tan vs. Director of Forestry, 125 SCRA 302 [1982])
What is the issue in a motion to dismiss on the ground that the complaint states no
cause of action?
Admitting the allegations of the complaint, may the court render VALID
JUDGMENT in accordance with its prayer and the law?
NOTE:
a. The insufficiency of the cause of action must appear on the FACE
OF THE COMPLAINT to sustain a dismissal on that ground.
b. No extraneous matter may be considered nor facts alleged which
would require evidence and therefore, must be raised as defenses
and await the trial.
The trial court may elect to hold a preliminary hearing on affirmative defenses as
raised in the answer under Section 6 of Rules 16 of the Rules of Court. Such a
hearing is not necessary when the affirmative defense is failure to state a cause
of action, and that it is, in fact, error for the court to hold a preliminary hearing to
determine the existence of external facts outside the complaint. The reception
and the consideration of evidence on the ground that the complaint fails to state
a cause of action, has been held to be improper and impermissible. Thus, in a
preliminary hearing on a motion to dismiss or on the affirmative defenses raised in
an answer, the parties are allowed to present evidence except when the motion
is based on the ground of insufficiency of the statement of the cause of action
which must be determined on the basis only of the facts alleged in the complaint
and no other. (Aquino vs. Quiazon, G.R. No. 201248, March 11, 2015)
For the ground to be effective, the insufficiency of the complaint must appear on
the face of the complaint, and nowhere else. It will be unfair to the plaintiff,
indeed, to determine the sufficiency of his cause of action from facts outside of
those pleaded in the complaint. A complaint should not be dismissed for
insufficiency unless it appears to a certainty, from the face of the complaint, that
plaintiff would be entitled to no relief under any state of facts which could be
proved within the facts alleged therein. (Sotto vs. Palicte, G.R. No. 159691,
February 17, 2014) - LPB
The Claim or Demand Has Been Paid, Waived, Abandoned, or Otherwise
Extinguished.
Under Art. 1231 of the Civil Code, obligations are extinguished:
(1) by payment or performance;
(2) by the loss of the thing due;
(3) by the condonation or remission of the debt;
(4) by the confusion or merger of rights of debtor and creditor;
(5) by compensation; and
(6) by novation
Obligations may also be extinguished by annulment, rescission, fulfillment of a
resolutory condition and prescription.
The Claim is Unenforceable Under the Statute of Frauds
The statute of frauds is governed by Art. 1403 (2) of the Civil Code, which provides
that
a. certain contracts therein enumerated, unless IN WRITING and
SUBSCRIBED by the party charged or by his agent,
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b. are UNENFORCEABLE and EVIDENCE on the agreement CANNOT

BE RECEIVED without the writing or secondary evidence of its
contents.
NOTES:
a. Where applied: The statute of frauds applies only to EXECUTORY
CONTRACTS and in actions for their SPECIFIC PERFORMANCE, not to
those which have been totally or partially performed. Performance,
which must be proved, takes the contract out of the operation of the
principle (Tankiko vs. Cesar, 302 SCRA 559 [1999])
b. Purpose: To prevent fraud and perjury in the enforcement of
obligations depending for their evidence on the unassisted memory
of witnesses by requiring certain contracts and transactions to be in
writing (Claudel vs. CA, 119 SCRA 113 [1999]).
A Condition Precedent For Filing The Claim Has Not Been Complied With
Where a condition precedent for filing the claim in court has not been complied
with, the cause of action has not accrued.
A complaint may be dismissed for FAILURE TO STATE A CAUSE OF ACTION if:
a. the case is between or among members of the SAME FAMILY and
there is no allegation that earnest efforts towards a COMPROMISE
has been exerted, or
b. the claim is referable to the Katarungang Pambarangay and prior
recourse to barangay CONCILIATION has not been made, or
c. the case involves a matter which the law requires that there be
EXHAUSTION of ADMINISTRATIVE REMEDIES before a litigant is allowed
to resort to court for reliefs, except where the complaint alleges facts
which bring the case under any of the exceptions thereto (Sunville
Timber Products, Inc. vs. Abad, 206 SCRA 582 [1992]).
b. Resolution of Motion
Rule 16, Sec. 3. After the hearing, the court may
1) dismiss the action or claim,
2) deny the motion, or
3) order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the
ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor.
c. Remedies of plaintiff when the complaint is dismissed
a. APPEAL the order granting the motion or
b. REFILE the complaint, except where grounds for dismissal are:
(1) that the cause of action is barred by prior judgment [res judicata]
(2) that the cause of action is barred by the statute of limitations
[prescription]
(3) that the claim or demand has been paid, waived, abandoned or
otherwise extinguished [extinguishment]
(4) that the claim is unenforceable under the statute of frauds
[statute of frauds] [RPES] (Rule 16, Sec. 5)
d. Remedies of the defendant when the motion to dismiss is denied
a. File his ANSWER (within the balance of the 15-day period to which
he was entitled at the time of serving the motion, but not less than 5
(!"
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days in any event, computed from his receipt of the order of denial
Rule 16, Sec. 4) and proceed with the hearing before the trial court.
b. if the decision is adverse, APPEAL therefrom. The denial of the
motion to dismiss being interlocutory, cannot be questioned by
certiorari; it cannot be the subject of appeal until judgment is
rendered (Casil vs. CA, January 28, 1998).
c. Exception: where the court denying the motion acts without or in
excess of jurisdiction or with grave abuse of discretion, the defendant
may question the denial by petition for CERTIORARI under Rule 65.
Reason: it would be unfair to require the defendant to undergo the
ordeal and expense of trial under such circumstances because the
remedy of appeal then would not be plain and adequate (Drilon vs.
CA, March 20, 1997).
***e. Effect of dismissal of complaint on certain grounds
Rule 16, Sec. 5. Effect of dismissal.
Subject to the right of appeal, an order granting a motion to dismiss based on
paragraphs (f) , (h) and (i) of section 1 hereof shall BAR the refiling of the same
action or claim. These are:
(1) that the cause of action is barred by prior judgment [res judicata]
(2) that the cause of action is barred by the statute of limitations
[prescription]
(3) that the claim or demand has been paid, waived, abandoned or
otherwise extinguished [extinguishment]
(4) that the claim is unenforceable under the statute of frauds
[statute of frauds] [RPES] (Rule 16, Sec. 5)
f. When grounds pleaded as affirmative defenses
Rule 16, Sec. 6. Pleading grounds as affirmative defenses.
If no motion to dismiss has been filed, any of the grounds for dismissal provided for
in this Rule may be pleaded as an affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be had thereon as if a motion
to dismiss had been filed.
The dismissal of the complaint under this section shall be without prejudice to the
prosecution in the same or separate action of a counterclaim pleaded in the
answer.
But no hearing if ground is failure to state a cause of action.
g. Bar by dismissal
See e above
h. Distinguished from demurrer to evidence under Rule 33:
After the plaintiff has completed the presentation of his evidence, the defendant
may move for dismissal on the ground that upon the facts and the law the plaintiff
has shown no right to relief. If his motion is DENIED, he shall have the right to present
evidence. If the motion is GRANTED but on appeal the order of dismissal is
reversed, he shall be deemed to have WAIVED the right to present evidence.
(Rules of Court, Rule 33, Sec. 1.)
A demurrer to evidence is differentiated from a motion to dismiss in that the former
can be availed of only after the presentation of plaintiffs evidence while the latter
is instituted as a general rule before a responsive pleading is filed.
Distinction between motion to dismiss for failure to state a cause of action and to
dismiss based on lack of cause of action.
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The first is raised in a motion to dismiss under Rule 16, Sec. 1 (g) before a responsive
pleading is filed and can be determined only from the ALLEGATIONS of the
pleading and not from evidentiary matters. The second is raised in a demurrer to
evidence under Rule 33 after the plaintiff has rested his case and can be resolved
only on the basis of the EVIDENCE he has presented in support of his claim(The
Manila Banking Corp. vs. University of Baguio, Inc., G.R. No. 159189, February 21,
2007)
When the motion for a demurrer to evidence is granted, the judgment of the court
is considered on the merits and so it has to comply with Rule 36, Section 1,
regarding the requirement that judgment should clearly and distinctly state the
facts and the law on which it is based. If the motion is denied, the order is merely
interlocutory. (Nepomuceno vs. Commission on Elections, G.R. No. 60601,
December 29, 1983, 126 SCRA 472.)
BAR QUESTION (1992) :
Is a motion to dismiss with counterclaim sanctioned by the Rules of Court?
a. If your answer is YES state your reasons.
b. If your answer is NO, give your reasons and state what the
defendant should instead file in court to preserve his counterclaim
while maintaining the ground asserted in his motion to dismiss as an
issue that should be the subject of a preliminary hearing,
ANSWER: No, because a counterclaim is contained in an answer and not in a
motion to dismiss.
What the defendant should do is to plead the ground of his motion to dismiss as
an affirmative defense in his answer, together with his counterclaim, and ask for
a preliminary hearing on his affirmative defense as if a motion to dismiss has been
filed. In the discretion of the court, a preliminary hearing may be had thereon as
if a motion to dismiss has been filed.
The dismissal of the complaint after preliminary hearing shall be without prejudice
to the prosecution in the same or separate action of a counterclaim pleaded in
the answer (Rule 16,Sec. 6).
NOTE: The counterclaim mentioned here apparently refers to a PERMISSIVE
counterclaim, as it allows its prosecution in the same or separate action. Only a
permissive counterclaim, and not a compulsory counterclaim, may be separately
or independently prosecuted.
H. Dismissal of Actions (Rule 17)
1. Dismissal upon notice by plaintiff; Two-dismissal rule
1. NOTICE OF DISMISSAL OF COMPLAINT
A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any
time before service of the answer or of a motion for summary judgment. (Rule 17,
Sec. 1).
General rule: the dismissal of the complaint under this rule is WITHOUT PREJUDICE.
Exceptions:
a. where the notice of dismissal so provides;
b. where the plaintiff has previously dismissed the same case in a
court of competent jurisdiction;
c. even where the notice of dismissal does not provide that it is with
prejudice but it is premised on the fact of payment by the defendant
of the claims involved. For the notice of dismissal to be effective,
there must be an order confirming the dismissal.
2. Dismissal upon motion by plaintiff; effect on existing counterclaim
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Rule 17, Sec. 2. Dismissal upon motion of plaintiff.

Except as provided in the preceding section, a complaint shall not be dismissed
at the plaintiff's instance save upon approval of the court and upon such terms
and conditions as the court deems proper. If a counterclaim has been pleaded
by a defendant prior to the service upon him of the plaintiff's motion for dismissal,
the dismissal shall be limited to the complaint. The dismissal shall be without
prejudice to the right of the defendant to prosecute his counterclaim in a
separate action unless within fifteen (15) days from notice of the motion he
manifests his preference to have his counterclaim resolved in the same action.
Unless otherwise specified in the order, a dismissal under this paragraph shall be
without prejudice. A class suit shall not be dismissed or compromised without the
approval of the court.
3. Dismissal due to the fault of plaintiff
Rule 17, Sec. 3. Dismissal due to fault of plaintiff.
If, for no justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or to prosecute his action
for an unreasonable length of time, or to comply with these Rules or any order of
the court, the complaint may be dismissed upon motion of the defendant or upon
the court's own motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action. This dismissal shall
have the effect of an ADJUDICATION UPON THE MERITS, unless otherwise declared
by the court.
4. Dismissal of counterclaim, cross-claim or third-party complaint
Rule 17, Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint.
The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-
claim, or third-party complaint. A voluntary dismissal by the claimant by notice as
in section 1 of this Rule, shall be made before a responsive pleading or a motion
for summary judgment is served or, if there is none, before the introduction of
evidence at the trial or hearing.
DISMISSALS
What dismissals are WITH prejudice?
a. Dismissal upon mere NOTICE without order of the court when filed
by a party who was once dismissed in a competent court an action
based on or including the same claim (Rule 17, Sec. 1).
b. Dismissal by order of the court upon a party’s MOTION which
specifies that the same shall be with prejudice to the filing of a
subsequent action based on or including the same claim (Rule 17,
Sec. 2).
c. Dismissal upon motion of a defendant or on the courts motion
upon plaintiffs FAILURE TO PROSECUTE his claim (Rule 17, Sec. 3).
d. Dismissal as a result of plaintiffs FAILURE TO APPEAR during the pre-
trial, unless otherwise ordered by the court (Rule 18, Sec. 5).
What dismissals are WITHOUT prejudice?
a. Dismissal for the first time by plaintiff upon mere NOTICE without
order of the court (Rule 17, Sec. 1).
b. Dismissal by order of the court upon plaintiffs own MOTION (Rule
17, Sec. 2).
c. Dismissal upon motion of defendant or upon the courts own
motion upon FAILURE TO PROSECUTE by plaintiff and the court
SPECIFIES that the same shall be without prejudice (Rule 17, Sec. 3).
When is an action dismissed for failure to prosecute?
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a. If the plaintiff fails to appear at the time of trial;

b. If he fails to prosecute his action for an unreasonable length of
time;
c. If he fails to comply with the Rules of Court or any order of the court
(Rule 17, Sec. 3)
NOTE:
Effect of dismissal for failure to prosecute - Once a case is dismissed for failure to
prosecute, this has the effect of an ADJUDICATION ON THE MERITS and is
understood to be WITH PREJUDICE to the filing of another action unless otherwise
provided for in the order of dismissal (De Knecht vs. CA, May 20, 1998).
Dismissal for failure to prosecute is an adjudication on the merits. Therefore, such
dismissal should be challenged by APPEAL within the reglementary period. (3A
Apparel Corporation vs. Metropolitan Bank and Trust Co. , G.R. No. 186175, Aug.
25, 2010)
I. Pre-trial (Rule 18)
1. Concept of pre-trial
Pre-trial is a procedural device by which the Court is called upon after the filing
of the last pleading to compel the parties and their lawyers to appear before it,
and negotiate an amicable settlement or otherwise make a formal statement
and embody in a single document the issues of fact and law involved in the
action, and such other matters as may aid in the prompt disposition of the action,
such as the number of witnesses the parties intend to present, the tenor or
character of their testimonies, their documentary evidence, the nature and
purpose of each of them and the number of trial dates that each will need to put
on his case. One of the objectives of pre-trial procedure is to take the trial of cases
out of the realm of surprise and maneuvering. (Permanent Concrete Products,
Inc. vs. Teodoro, G.R. No. 29776, November 29, 1968, 26 SCRA 332 )
Pre-trial also lays down the foundation and structural framework of another
concept, that is, the continuous trial system. (Circular No. 1-89, Administrative
Circular No. 4, September 4, 1988) Pre-trial is mandatory but not jurisdictional.
(Martinez vs. de la Merced, G.R. No. 82309, June 20, 1989, 174 SCRA 18)
Note: Section 4, Rule 18 imposes the duty on litigating parties and their respective
counsel to appear during pre-trial. The provision also provides for the instances
where the non-appearance of a party may be excused. Nothing, however, in
Section 4 provides for a sanction should the parties or their respective counsel be
absent during pre-trial. Instead, the penalty is provided for in Section 5. Notably,
what Section 5 penalizes is the failure to appear of either the plaintiff or the
defendant, and not their respective counsel (Paredes vs. Verano, G.R. No.
164375, October 12, 2006). )
2. Nature and purpose
What is the nature of pre-trial?
It is mandatory (Rule 18, Sec. 2).
Note: Pre-trial is mandatory in civil cases. In criminal cases, it is mandatory in cases
cognizable by the following:
1. Sandiganbayan
2. RTC
3. MeTC, MTCC, MTC, MCTC
It is also mandatory in both criminal and civil cases under the Rule on Summary
Procedure. The Courts authority is confined to a mere determination of the
propriety of rendering a judgment on the pleadings or a summary judgment
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What are the purposes of pre-trial?

The court shall consider the following purposes:
1. Possibility of an amicable settlement or of a submission to
alternative modes of dispute resolution;
2. Simplification of the issues;
3. Necessity or desirability of amendments to the pleadings;
4. Possibility of obtaining stipulations or admissions of facts and of
documents to avoid unnecessary proof;
5. Limitation of the number of witnesses;
6. Advisability of a preliminary reference of issues to a commissioner;
7. Propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefore
be found to exist;
8. Advisability or necessity of suspending the proceedings; and
9. Such other matters as may aid in the prompt disposition of the
action (Rule 18, Sec. 2).
3. Notice of pre-trial
Rule 18, Sec. 3. Notice of pre-trial.
The notice of pre-trial shall be served on counsel, or on the party who has no
counsel. The counsel served with such notice is charged with the duty of notifying
the party represented by him.
On whom must notice of pre-trial be served? (Rule 18, Sec. 3)
a. On counsel who is charged with the duty of notifying his client, or
b. On the party who has no counsel
Plaintiff required to move that the case be set for pre-trial
Under Rule 18, Sec. 1, after the last pleading has been served and filed, the
plaintiff has the duty to promptly move ex parte that the case be set for pre-trial.
If he does not file such motion within a reasonable period, the court may dismiss
the case for his failure to prosecute pursuant to Rule 17, Sec. 3 (failure to prosecute
his action for an unreasonable length of time).
This has been superseded by A.M. No. 03-1-09-SC (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) which took effect on August 29, 2006.
.
Under I.A.1.2 Within 5 days after filing of the reply, the plaintiff must promptly move
ex parte that the case by set for pre-trial conference. If the plaintiff fails to file such
motion within the given period, the Branch Clerk of Court SHALL ISSUE A NOTICE
OF PRE-TRIAL.
Binding effect of admissions or stipulations
Admissions or stipulations made during the pre-trial and stated in the pre-trial
order are BINDING upon the party making the admissions (Alano vs. CA, 383 SCRA
269 [1997]).
4. Appearance of parties; effect of failure to appear
Parties and their counsel BOTH have the duty to appear at pre-trial
Non-appearance may be excused only if:
1. A valid cause is shown; or
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2. A representative appears fully authorized in writing a) to enter into

an amicable settlement, b) to submit to alternative modes of dispute
resolution and c) to enter into stipulations or admissions of facts and
of documents. (Rule 18, Sec. 4)
The authorization in writing must be in the form of a SPECIAL POWER OF ATTORNEY.
What is the effect of failure of the parties to appear at the pre-trial?

1. If the plaintiff fails to appear - the action shall be dismissed with
prejudice, unless otherwise ordered by the court (Rule 18, Sec. 5, 1st
and 2nd sentences).
2. If the defendant fails to appear plaintiff shall be allowed to present
his evidence ex parte and the court shall render judgment on the
basis thereof (Rule 18, Sec. 5, 3rd sentence).
5. Pre-trial brief
The pre-trial brief(to be filed at least three days before the pre-trial) shall contain
the following:
1. Statement of the parties willingness to enter into amicable
settlement or alternative modes of dispute resolution, indicating the
desired terms
2. A summary of admitted facts and proposed stipulation of facts
3. Issues to be tried or resolved
4. 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 (A.M. No. 03-1-
09-SC)
5. A manifestation of their having availed OR their intention to avail
themselves of discovery procedures or referral to commissioners;
6. The number and names of witnesses and the substance of their
testimonies (Rule 18, Sec. 6)
Parties are bound by the representations and statements in their respective pre-
trial briefs as such are in the nature of judicial admissions.
What is the effect of failure to file a pre-trial brief?
Same effect as failure to appear at the pre-trial (Rule 18, Sec. 6).
As to plaintiff -- his complaint may be dismissed or he is non-suited.
As to defendant - he may be considered as in default, and plaintiff may be
authorized to present evidence ex parte against him. (Rule 18, Sec. 5)
Distinction between pre-trial in civil case and pre-trial in criminal case
Civil Case Criminal Case
1. it is set when the plaintiff moves ex 1. it is ordered by the court and no

parte to set the case for pre-trial. motion to set the case for pre-trial is
required from either the prosecution
or the defense.
(("
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2. the motion to set case for pre-trial is 2. the pre-trial is ordered by the court
made after the last pleading has been after arraignment and within 30 days
served and filed. from the date the court acquires
jurisdiction over the person of the
accused.
3. considers the possibility of an 3. does not include the considering of

amicable settlement as an important the possibility of amicable settlement
objective. of criminal liability as one of its
purposes.
4. the agreements and admissions 4. there is a stricter procedure

made in the pretrial are not required to required. All agreements or
be signed by both the parties and their admissions made or entered during
counsels. They are to be contained in the pretrial conference shall be
the record of pre-trial and the pre-trial reduced in writing and signed by
order. However, A.M. No. 03-1-09 SC both the accused and counsel,
dated July 13, 2004 now requires the otherwise, they cannot be used
proceedings during the preliminary against the accused.
conference to be recorded in the
Minutes of Preliminary Conference to be
signed by both parties and/or counsel.
The rule allows either the party or his
counsel to sign the minutes.
5. the sanction for non-appearance in a 5. the sanction are imposed upon the
pre-trial are imposed upon the plaintiff counsel for the accused or the
and the defendant in a civil case. prosecutor.
6. a pre-trial brief is required to be 6. pre-trial brief is not required to be

submitted submitted.
(Civil Procedure, A Restatement of
the Bar, Willard B. Riano, 2009 Edition
pp. 373-374)
Pre-Trial Order
The order of the court is issued upon the termination of the pre-trial.
The order shall contain
1. The matters taken up in the conference;
2. The action taken thereon;
3. The amendments allowed to the pleadings; and
4. The agreements or admissions made by the parties.
The pre-trial order shall define and limit the issues to be tried and shall control the
subsequent course of the action except if it is modified before trial to prevent
manifest injustice (Rule 18, Sec.7)
7. Alternative Dispute Resolution (ADR) - A.M. No. 01-10-5-SC-PHILJA, 0ctober 16,
2001
Coverage:
1. All civil cases, settlement of estates, and cases covered by the Rule
on Summary Procedure, except those which by law may not be
compromised;
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2. Cases cognizable by the Lupong Tagapamayapa under the

Katarungang Pambarangay Law;
3. The civil aspect of BP 22 cases; and
4. The civil aspect of quasi offenses under Title 14 of the Revised Penal
Code
The trial court, after determining the possibility of an amicable settlement or of a
submission to alternative modes of dispute resolution, shall issue an Order referring
the case to the Philippine Mediation Center (PMC) Unit for mediation and
directing the parties to proceed immediately to the PMC Unit.
The Order shall be personally given to the parties during the pre-trial. Copy of the
Order together with a copy of the Complaint and Answer/s, shall be furnished the
PMC Unit within the same date
The Supervisor of the PMC Unit shall assist the parties select a mutually acceptable
Mediator from a list of duly accredited Mediators and inform the parties about
the fees, if any, and the mode of payment. If the parties cannot agree on a
Mediator, then the Supervisor shall assign the Mediator. The trial court shall
immediately be notified of the name of the Mediator, and shall thereafter confirm
the selection/appointment of the Mediator. The Mediator shall immediately
commence the mediation proceedings unless both parties agree to reset the
mediation within the next five (5) working days, without need of further notice.
The Mediator shall be considered as an officer of the court
Lawyers may attend the mediation proceedings and shall cooperate with the
Mediator towards the amicable settlement of the dispute
The period during which the case is undergoing mediation shall be excluded from
the regular and mandatory periods for trial and rendition of judgment in ordinary
cases and in cases under summary procedure.
The period for mediation shall not exceed (30) days, extendible for another 30
days, in order to allow the parties sufficient time to reach a compromise
agreement and put an end to litigation
In case of SUCCESSFUL settlement, the trial court shall immediately be informed
and given (a) the original Compromise Agreement entered into by the parties as
basis for the rendition of a judgment by compromise which may be enforced by
execution or, (b) a withdrawal of the Complaint or, (c) a satisfaction of the claim.
If the mediation is NOT SUCCESSFUL, the Mediator shall issue a Certificate of Failed
Mediation for the purpose of returning the case for further judicial proceeding
Since mediation is part of Pre-Trial, the trial court shall impose the appropriate
sanction including but not limited to censure, reprimand, contempt and such
sanctions as are provided under the Rules of Court for failure to appear for pre-
trial, in case any or both of the parties absent himself/themselves, or for abusive
conduct during mediation proceedings
J. Intervention(Rule 19)
INTERVENTION is a legal proceeding by which a person who is NOT a party to the
action is permitted by the court to become a party by intervening in a pending
action after meeting the conditions and requirement set by the Rules of Court.
1. Requisites for intervention
Requisites For Intervention (Rule 19, Sec. 1)
1. There must be a motion for intervention filed BEFORE rendition of
judgment.
2. Movant must show in his motion that
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a. he has legal interest in the matter in litigation, in the

success of either of the parties in the action, or against
both parties.
b. he is situated as to be adversely affected by a
distribution or other disposition of property in the custody
of the court
3. Intervention must not unduly delay or prejudice the adjudication
of the rights of the original parties.
4. Intervenors rights may not be fully protected in a separate
proceeding.
LEGAL INTEREST one that is actual and material, direct and of an immediate
character, not merely contingent or expectant.
Intervention is NOT an absolute right (nor is it compulsory or mandatory) , as it is
within the courts discretion to grant the same.
Intervention is an ancillary and supplemental proceeding to an existing litigation.
Thus, the final dismissal of the principal action results in the denial for the motion
to intervene.
2. Time to intervene (Rule 19, Sec. 2)
Motion for intervention may only be filed BEFORE judgment is rendered by the trial
court.
The motions for intervention were filed after judgment had already been
rendered, indeed when the case was already final and executory. Certainly,
intervention can no longer be allowed in a case already terminated by final
judgment.
Intervention is merely collateral or accessory or ancillary to the principal action,
and not an independent proceeding; it is an interlocutory proceeding
dependent on or subsidiary to the case between the original parties. Where the
main action ceases to exist, there is no pending proceeding wherein the
intervention may be based. (Looyuko vs. Court of Appeals, G.R. No. 102696, July
12, 2001)
However, in some cases, the Supreme Court has allowed intervention after
judgment, and in one case even after the judgment had become final and
executory, to serve the ends of justice and equity. (Office of the Ombudsman vs.
Miedes, Sr., G.R. No. 176409, February 27, 2008)
Although Rule 19 of the Rules of Court is explicit on the period when a motion to
intervene may be filed. This rule, however, is not inflexible. Interventions have been
allowed even beyond the period prescribed in the Rule, when demanded by the
higher interest of justice. Interventions have also been granted to afford
indispensable parties, who have not been impleaded, the right to be heard even
after a decision has been rendered by the trial court, when the petition for review
of the judgment has already been submitted for decision before the Supreme
Court, and even where the assailed order has already become final and
executory. (Deogenes O. Rodriguez vs. Court of Appeals, G.R. No. 184589, June
13, 2013)
3. Remedy from the denial of motion to intervene
The remedy of the aggrieved party is APPEAL The allowance or disallowance of
a motion to intervene is addressed to the sound discretion of the court hearing
the case. This discretion, once exercised, is not reviewable by certiorari or
mandamus save in instances where such discretion is exercised in an arbitrary or
capricious manner. (Gallego vs. Galang, G.R. No. 130228, July 27, 2004)
Note: Rule 20 (Calendar of Cases) and Rule 22 (Computation of Time)
not included.
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K. Subpoena (Rule 21)

1. Subpoena duces tecum
Rule 21, Section 1. Subpoena and subpoena duces tecum.
Subpoena is a process directed to a person requiring him 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 deposition. It may also require him to
bring with him any books, documents, or other things under his control, in which
case it is called a subpoena duces tecum.
2. Subpoena ad testificandum
A process directed to a person requiring him 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 deposition. (Rule 21, Section 1)
Who issues subpoena?
1. The court before whom the witness is required to attend;
2. The court of the place where the deposition is to be taken;
3. The officer or body authorized by law to do so in connection with
investigations conducted by said officer or body; or
4. Any Justice of the SC or of the CA in any case or investigation
pending within the Philippines (Rule 21, Sec. 2)
What are the contents of subpoena?
It shall state the name of the court and the title of the action or investigation, shall
be directed to the person whose attendance is required, and in the case of a
subpoena duces tecum, it shall also contain a reasonable description of the
books, documents or things demanded which must appear to the court prima
facie relevant (Rule 21, Sec. 3)
3. Service of subpoena
Rule 21, Sec. 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, tendering to him the fees for one
days attendance and the kilometrage allowed by these Rules, except that, when
a subpoena is issued by or on behalf of the Republic of the Philippines or an officer
or agency thereof, the tender need not be made. The service must be made so
as to allow the witness a reasonable time for preparation and travel to the place
of attendance. If the subpoena is duces tecum, the reasonable cost of producing
the books, documents or things demanded shall also be tendered.
4. Compelling attendance of witnesses; Contempt
Rule 21, Sec. 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 deputy, to arrest the witness and bring
him before the court or officer where his 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 failure to answer the subpoena was willful and
without just excuse.
Rule 21, Sec. 9. Contempt.
Failure by any person without adequate cause to obey a subpoena served upon
him 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.
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5. Quashing of subpoena
Rule 21, Sec. 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 books, documents or things does not appear,
or if the person in whose behalf the subpoena is issued fails to advance the
reasonable cost of the production thereof.
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.
L. Modes of Discovery (Rules 23-29)
What are the different modes of discovery?
1. Depositions pending action (Rule 23)
2. Depositions before action or pending appeal (Rule 24)
3. Interrogatories to parties (Rule 25)
4. Admission by adverse party (Rule 26)
5. Production or inspection of documents and things (Rule 27)
6. Physical and mental examination of persons (Rule 28)
What is the purpose of the modes of discovery?
The various modes or instruments of discovery are meant to serve as a (1) device,
along with pre-trial under Rule 118, to NARROW and CLARIFY the basic issues
between the parties, and (2) device for ASCERTAINING the facts relative to those
issues. Purpose: to enable the parties, consistent with recognized privileges, to
obtain the fullest possible knowledge of the issues and facts before civil trials and
thus prevent that said trials be carried on in the dark.
What modes of discovery may be availed of without leave of court and generally
without court intervention?
a. depositions (whether by oral examination or written
interrogatories) under Rule 24)
b. interrogatories to parties under Rule 25
c. requests for admission under Rule 26.
Under the Rules of Court, leave of court is not necessary to avail of said modes of
discovery after an answer to the complaint has been served. It is only when an
answer has not yet been filed (but after jurisdiction has been obtained over the
defendant or property subject of the action) that prior leave of court is needed,
the reason being that at that time the issues are not yet joined and the disputed
facts are not clear.
What modes of discovery cannot be availed of without leave of court?
a. production or inspection of documents or things under Rule 27
b. physical and mental examination of persons under Rule 28, which
may be granted upon due application and showing of due cause.
1. Depositions pending action; Depositions before action or pending appeal
(Rules 23-24)
a. Meaning of deposition
What is deposition?
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A deposition is the taking of the testimony of any person, whether he be a party

or not, but at the instance of a party to the action. This testimony is taken out of
court. Deposition may be:
a. An oral examination
b. Written interrogatories (Rule 23, Sec 1,)
What is the dual function of deposition?
a. A method of discovery
Deposition is chiefly a mode of discovery. This purpose is evident from Section 2 of
Rule 23 on the broad scope of examination regarding any matter, not privileged,
which is relevant to the subject of the pending action, whether relating to the
claim or defense of any other party, the only requirement is that it be relevant
and not privileged.
b. An alternative mode of testimony
Section 4 of Rule 23 on the use of deposition is clearly indicative of the use of
deposition as an alternative mode of testimony in view of distance, death or
disability of the deponent.
When can depositions be availed of? :
a. During a pending action (Rule 23) deposition de benne esse
b. Before action or Pending appeal (Rule 24) deposition in
perpetuam rei memoriam
Before whom may depositions be taken?
1. If within the Philippines
a. Judge;
b. Notary public (Rule 23, Sec. 10,) ; or
c. Any person authorized to administer oaths, as
stipulated by the parties in writing (Rule 23, Sec. 14,).
2. If outside the Philippines
a. On notice, before a secretary of embassy or legation,
consul-general, consul, vice-consul, or consular agent of
the Philippines (Rule 23, Sec. 11,) ;
b. Before such person or officer as may be appointed by
commission or letters rogatory; or
c. Any person authorized to administer oaths, as
stipulated by the parties in writing (Rule 23, Sec. 14) ,
What is the requirement in taking deposition upon oral examination?
A party desiring to take the deposition of any person upon oral examination shall
give reasonable notice in writing to every other party to the action (Rule 23, Sec.
15)
What shall the notice state?
It shall state the time and place for taking the deposition and the name and
address of each person to be examined, if known, and if the name is not known,
a general description sufficient to identify him or the particular class or group to
which he belongs (Rule 23, Sec. 15).
How is deposition upon written interrogatories done?

A party desiring to take the deposition of any person upon written interrogatories
shall serve them upon every other party with a notice stating the name and
address of the person who is to answer them and the name or descriptive title
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and address of the officer before whom the deposition is to be taken. Within ten
(10) days thereafter, a party so served may serve cross-interrogatories upon the
party proposing to take the deposition. Within five (5) days thereafter, the latter
may serve re-direct interrogatories upon a party who has served cross-
interrogatories. Within three (3) days after being served with re-direct
interrogatories, a party may serve recross-interrogatories upon the party
proposing to take the deposition (Rule 23, Sec. 25).
Note: The duties of the officer under Secs. 17, 19, 20, 21 & 22 of Rule 23 shall also
be followed on deposition upon written interrogatories (Rule 23, Secs. 26 & 27).
Who may file a petition for deposition before action?
Any person who wants to perpetuate his own testimony or that of another person
regarding any matter that may be cognizable in any court of the Philippines (Rule
24, Sec. 1)
What are the contents of the motion for deposition pending appeal?
The motion shall state:
1. The names and addresses of the persons to be examined
2. The substance of the testimony which he expects to elicit from
each
3. The reason for perpetuating their testimony (Sec. 7, Rule 24).
Note: If the court finds that the perpetuation of the testimony is
proper to avoid a failure or delay of justice, it may make an order
allowing the depositions to be taken, and thereupon the depositions
may be taken and used in the same manner and under the same
conditions as are prescribed under Rule 23 (Rule 24, Sec. 7.
b. Uses; Scope of examination
Scope of Examination
May be any matter not privileged and which is relevant to the subject of the
pending action, including:
1. Claim or defense of any other party;
2. Existence, description, nature, custody, condition and location of
any books, documents, or other tangible things; and
3. Identity and location of persons having knowledge of relevant
facts (Rule 23, Sec. 2)
Examination and cross-examination.
Examination and cross-examination of deponents may proceed as permitted at
the trial under sections 3 to 18 of Rule 132.
A deposition is not generally supposed to be a substitute for the actual testimony
in open court of a party or witness. If the witness is available to testify, he should
be presented in court to testify. If available to testify, a party’s or witness
deposition is inadmissible in evidence for being hearsay. The exceptions however
to the inadmissibility of such deposition are provided for in Rule 23, Section 4. (Rule
23, Sec. 3)
Effect of taking deposition
A party shall NOT be deemed to make a person his own witness for any purpose
by taking his deposition (Rule 23, Section 7) , EXCEPT when the deposition is
introduced in evidence, then he will be deemed to have made the deponent his
witness (Rule 23 , Section 8).
The exception will NOT apply if the deposition used is that of an opposing party or
the deposition is used to impeach or contradict the deponent still NOT a witness
of the party taking the deposition.
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Use of depositions
Any part or all of the deposition, so far as admissible under the rules of evidence,
may be used
1) Against any party who was present or represented at the taking of
the deposition; or
2) Against one who had due notice of the deposition.
The deposition may be used for the following purposes:
1. BY ANY PARTY - For the purpose of contradicting or impeaching the
testimony of the deponent as witness
2. BY AN ADVERSE PARTY for any purpose - If the deponent is a party
or anyone who was at the time of the deposition was an officer,
director, or managing agent of a public or private corporation,
partnership or association which is a party, his deposition can be used
3. BY ANY PARTY for any purpose - If the deponent is a witness,
whether or not a party to the case, if the court finds
a) That the witness is dead; or
b) That the witness resides at a distance more than one
hundred (100) kilometers from the place of trial or
hearing, or is out of the Philippines (UNLESS it appears
that his absence was procured by the party offering the
deposition) ; or
c) That the witness is unable to attend or testify because
of age, sickness, infirmity or imprisonment; or
d) That the party offering the deposition has been
unable to procure the attendance of the witness by
subpoena; or
e) Upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest
of justice to allow the deposition to be used. (Rule 23,
Sec. 4)
Note: If only part of a deposition is offered in evidence by a PARTY, the ADVERSE
PARTY may require him to introduce all of it which is relevant to the part
introduced, and any party may introduce any other parts.
c. When may objections to admissibility be made
Objections may be made at the trial or hearing to receive in evidence any
deposition or part thereof.
Any reason which would require the exclusion of the evidence if the witness where
then present and testifying may be used as a reason for objection. (Rule 23, Sec.
6).
All objections made at the time of the examination to the qualifications of the
officer taking the deposition, manner of taking it, to evidence presented, conduct
of any party and any other objection to the proceedings shall be NOTED by the
officer taking the deposition. He has NO authority to rule on such objections. (Rule
23, Sec. 17)
When may the court make orders for the protection of parties and deponents?
After notice is served for taking a deposition by oral examination, upon motion
seasonably made by any party or by the person to be examined and for good
cause shown, the court in which the action is pending may make orders for the
protection of parties and deponents (Rule 23, Sec. 16,).
d. When may taking of deposition be terminated or its scope limited
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1. Upon motion or petition of any party or of the deponent; and

2. Upon showing that the examination is being conducted in bad
faith or in such manner as unreasonably to annoy, embarrass or
oppress the deponent or party,
3. The court may order the officer conducting the examination to
cease forthwith from taking the deposition, or may limit the scope
and manner of the taking of the deposition, as provided in Rule 23,
Sec. 16. (Rule 23, Sec. 18).
This section refers to protection orders during examination either by the court in
which the action is pending or where the deposition is being taken. When the
constitutional privilege against self-incrimination is invoked by deponent or his
counsel, the trial court may stop the examination to protect the deponents
constitutional right. Other grounds, such as bad faith which unreasonably annoy,
embarrass or harass deponent or party may likewise be invoked.
2. Written interrogatories to adverse parties (Rule 25)
Purpose and nature
Written interrogatories elicit material and relevant facts from any adverse party
(Note: answers may also be used as admissions of the adverse party). (Rule 25,
Section 1)
Answer to interrogatories
The interrogatories shall be ANSWERED FULLY in writing and shall be signed and
sworn to by the person making them. Such answer shall be filed and served to the
party submitting the interrogatory within fifteen (15) days from service of such
interrogatories UNLESS the court on motion and for good cause extends or
shortens the time. (Rule 25, Sec. 2)
Objections to interrogatories
1. May be presented to the court within 10 days after service thereof,
with notice as in the case of motions.
2. Answers shall be deferred until objections are resolved, which shall
be at the earliest possible time. (Rule 25, Sec. 3)
3. Grounds for objections:
(a) They require the statements of conclusions of law or
answers to hypothetical questions or opinions, or mere
hearsay, or matters not within the personal knowledge
of the interrogated party.
(b) Frivolous interrogatories need not be answered.
a. Consequences of refusal to answer
The court, on motion and notice may
1. Strike out all or any part of any pleading of that party; or
2. Dismiss the action or proceeding or any part thereof made if it was
the PLAINTIFF who refused to answer;
3. Enter judgment by default against the defendant, if it was the
DEFENDANT who refused to answer;
4. Order that party who refused to answer to pay reasonable
expense incurred by the other party and attorney’s fees (Rule 29,
Section 5)
If a party refuses to answer the WHOLE written interrogatory, Rule 29, Section 5,
shall apply. However, where a party refuses only to answer a PARTICULAR
question, Rule 29, Section 3 [c], shall apply (the main difference being that in
Section 3[c], there is no provision on payment of reasonable expenses/penalty)
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b. Effect of failure to serve written interrogatories

General Rule A party not served with written interrogatories may NOT be
compelled by the adverse party to give testimony in open court, or to give a
deposition pending appeal.
Exception when allowed by the court for good cause and to prevent a failure of
justice.
(Rule 25, Sec. 6)
3. Request for Admission (Rule 26)
Scope
a. Admission of the genuineness of any material and relevant
document described in and exhibited with the request;
b. Admission of the truth of any material and relevant matter of fact
set forth in the request;
c. A matter of fact not related to any documents may be presented
to the other party for admission or denial. (Rule 26, Sec. 1)
Objections to any request for admission shall be submitted to the court WITHIN the
period for and PRIOR to the filing of the sworn statement - Fifteen (15) days after
service of request.
Compliance shall be deferred until such objections have been resolved by the
court. (Rule 26,Sec. 2)
a. Implied admission by adverse party
(1) There is an IMPLIED ADMISSION of each of the matters of which an
admission is requested
(2) if the party to whom the request is made does NOT file and serve
a sworn statement EITHER a) denying specifically the matters of which
an admission is requested OR b) setting forth the reasons why he
cannot either admit or deny those matters
(3) within fifteen (15) days after service thereof or with such further
time as the court may allow on motion
Objections to any request for admission shall be submitted to the court by the
party requested within the period for and prior to the filing of his sworn statement
as contemplated in the preceding paragraph (15 days).
His compliance therewith shall be deferred until such objections are resolved,
which resolution shall be made as early as practicable. (Rule 26 Sec. 2)
The request for admission must be SERVED directly upon the PARTY REQUESTED.
Otherwise, that party cannot be deemed to have admitted the genuineness of
any relevant matters of fact set forth therein on account of failure to answer the
request for admission. (Nestle Philippines, Inc. and Santos vs. Court of Appeals and
Sps. Hemedez, G. R. No. 102404, February 1, 2002).
b. Consequences of failure to answer request for admission
See above.
c. Effect of admission
Any admission made pursuant to such request is for the purpose of the pending
action only and shall not constitute an admission by him for any other purpose.
The admission may NOT be used against the party who made it in any other
proceeding.
(Rule 26, Sec. 3)
d. Effect of failure to file and serve request for admission
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The party who fails to request for admission of material and relevant facts which
are or ought to be within the personal knowledge of such party shall NOT be
permitted to present evidence on such facts UNLESS otherwise allowed by the
court for good cause shown and to prevent failure of justice. (Rule 26, Sec. 5).
4. Production or inspection of documents or things(Rule 27)
UPON MOTION for good cause shown, the court may order any party (a) to
produce and permit the inspection and copying of documents, papers, books,
accounts, letters, photographs, objects or tangible things or (b) to permit entry
upon designated land or other property in his possession or control for the purpose
of inspecting, measuring, surveying or photographing the property or designated
relevant object or operation therein. (Rule 27, Sec. 1)
This is essentially a mode of discovery limited to the parties to the action. This is to
be differentiated from a subpoena duces tecum which is a means to compel the
production of evidence which may be directed to a person who may or may not
be a party to the action.
For a document to be produced
1. It should not be privileged;
2. It should constitute or contain evidence material and relevant to
any matter involved in the action; and
3. It must be within the party’s possession, custody or control. (Rule
27, Sec. 1)
The production or inspection of documents or things as a mode of discovery
sanctioned by the Rules of Court may be availed of by any party upon a showing
of good cause therefor before the court in which an action is pending. The court
may order any party: a) to produce and permit the inspection and copying or
photographing of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, which are not privileged; which
constitute or contain evidence material to any matter involved in the action; and
which are in his possession, custody or control; or b) to permit entry upon
designated land or other property in his possession or control for the purpose of
inspecting, measuring, surveying, or photographing the property or any
designated relevant object or operation thereon. (Air Philippines Corporation vs.
Pennswell, Inc., G.R. No. 172835, December 13, 2007
This mode of discovery does not mean that the person who is required to produce
the document or the thing will be deprived of its possession even temporarily. It is
enough that the requesting party be given the opportunity to inspect or copy or
photograph the document or take a look at the thing.
5. Physical and mental examination of persons (Rule 28)
When the mental or physical condition of a party is in controversy, the court,
UPON MOTION FOR GOOD CAUSE SHOWN and upon notice to the party to be
examined and to all other parties, may order the party to submit to a physical or
mental examination by a physician. (Rule 28, Secs. 1 and 2)
Requisites to obtain an Order for Examination:
1. A motion must be filed for the physical and mental examination;
2. The motion must show good cause for the examination;
3. Notice to the party to be examined and to all other parties;
4. The motion shall specify the time, place, manner, conditions and
scope of the examination and the person or persons by whom it is
made.
5. There must be a pending action; and
6 A party’s mental or physical condition is in controversy.
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Exs.
a. action involving physical injury
b. blood grouping test
c. annulment of marriage on the ground of impotency
d. guardianship over an incompetent or mentally retarded person
e. probate of a will by one claimed not to be in full possession of his
or her mental capacity
Since the results of the examination are intended to be made public, the same
are not covered by the physician-patient privilege (Sec 24(c) , Rule 130). Also,
unlike the privilege, the examination is not done to treat or cure the patient.
The party examined MAY request the party causing the examination to be made
to deliver to him a copy of a detailed report of the examining physician setting
out his findings and conclusions (Rule 28, Sec. 3).
Waiver of Privilege
By requesting and obtaining a report of the examination or by taking the
deposition of the
examiner, the party examined WAIVES any privilege he may have in that action
or any other involving the same controversy regarding the testimony of every
other person who has examined or may thereafter examine him in respect of the
same mental or physical examination (Rule 28, Sec. 4).
6. Consequences of refusal to comply with modes of discovery (Rule 29)

Consequences of Refusal
Under Sec. 3 --
If any party REFUSES TO OBEY--
1. The order directing him to answer designated questions under Sec.
1 of Rule 29;
2. The order to produce any document or other thing for inspection,
copying or photographing or to permit it to be done under Rule 27;
or
3. The order to submit to physical or mental examination under Rule
28, or
The court may issue any of the following orders:
a. Making the FACTS OR DOCUMENTS or MENTAL OR PHYSICAL
CONDITION sought to be discovered as ESTABLISHED for purposes of
the action;
b. REFUSING to allow the disobedient party to support or oppose
CLAIMS or DEFENSES
c. PROHIBITING the disobedient party from INTRODUCING in
evidence designated documents or items of testimony;
d. PROHIBITING the disobedient party from INTRODUCING evidence
of physical or mental condition;
e. STRIKING OUT all or any part of the pleading of the disobedient
party;
f. STAYING further proceedings until order is obeyed;
g. DISMISSING the action or proceeding or any part thereof;
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"
h. Rendering DEFAULT JUDGMENT against the disobedient party;

i. Directing the ARREST of the party concerned, except in a refusal to
submit to a physical or mental examination;
j. Directing PAYMENT of REASONABLE EXPENSES incurred by the other,
including attorney’s fees.
Under Sec. 5 --
If a party
1. FAILS TO APPEAR before the officer who is to take his deposition;
2. FAILS TO SERVE ANSWERS to interrogatories submitted under Rule
25
The court may issue any of the following orders:
a. STRIKING OUT all or any part of the pleading of the disobedient
party
b. DISMISSING the action or proceeding or any part thereof;
c. Rendering DEFAULT JUDGMENT against the disobedient party;
d. Directing PAYMENT of REASONABLE EXPENSES incurred by the
other, including attorney’s fees.
M. Trial (Rule 30)
1. Adjournments and postponements
Rule 30, Sec. 2. Adjournments and postponements.
A court may adjourn a trial from day to day, and to any stated time, as the
expeditious and convenient transaction of business may require, but shall have
no power to adjourn a trial for a longer period than one month for each
adjournment, nor more than three months in all, except when authorized in writing
by the Court Administrator, Supreme Court.
2. requisites of motion to postpone trial

a. for absence of evidence
Rule 30, Sec. 3. Requisites of motion to postpone trial for absence of evidence.
A motion to postpone a trial on the ground of absence of evidence can be
granted only upon affidavit showing the materiality or relevancy of such
evidence, and that due diligence has been used to procure it. But if the adverse
party admits the facts to be given in evidence, even if he objects or reserves the
right to their admissibility, the trial shall NOT BE POSTPONED.
b. for illness of party or counsel
Rule 30, Sec. 4. 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
illness is such as to render his non-attendance excusable.
3. Agreed statement of facts
Rule 30, Sec. 6. Agreed statement of facts.
The parties to any action may agree, in writing, upon the facts involved in the
litigation, and submit the case for judgment on the facts agreed upon, without
the introduction of evidence.
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"
If the parties agree only on some of the facts in issue, the trial shall be held as to
the disputed facts in such order as the court shall prescribe.
4. Order of trial; reversal of order
Rule 30 Sec. 5. Order of trial.
Subject to the provisions of Section 2 of Rule 31, and unless the court for special
reasons otherwise directs, the trial shall be limited to the issues stated in the pre-
trial order and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his
defense, counterclaim, cross-claim and third-party complaint;
(c) The third-party defendant, if any, shall adduce evidence of his
defense, counterclaim, cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of
the material facts pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has
been pleaded, shall adduce evidence in support of their defense, in
the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence
only, unless the court, for good reasons and in the furtherance of
justice, permits them to adduce evidence upon their original case;
and
(g) Upon admission of the evidence, the case shall be deemed
SUBMITTED FOR DECISION, unless the court directs the parties to argue
or to submit their respective memoranda or any further pleadings.
If several defendants or third-party defendants, and so forth, having separate
defenses appear by different counsel, the court shall determine the relative order
of presentation of their evidence.
When is a reverse order of trial allowed?
Where the defendant, in his answer, relies upon an affirmative defense, a reverse
order of trial shall take place. Since the defendant admits the plaintiffs claim but
seeks to avoid liability based on his affirmative defense he shall proceed first to
prove his exemption.
5. Consolidation or Severance of hearing or trial (Rule 31)
Rule 31, Section 1. Consolidation.
When actions involving a common question of law or fact are pending before
the court, it may order a joint hearing or trial of any or all the matters in issue in the
actions; it may order all the actions consolidated; and it may make such orders
concerning proceedings therein as may tend to avoid unnecessary costs or
delay.
Rule 31, Sec. 2. Separate trials.
The court, in furtherance of convenience or to avoid prejudice, may order a
separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or
of any separate issue or of any number of claims, cross-claims, counterclaims,
third-party complaints or issues.
6. Delegation of reception of evidence
Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of court.
The judge of the court where the case is pending shall personally receive the
evidence to be adduced by the parties. However, in default or ex parte hearings,
and in any case where the parties agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a member of the bar. The clerk
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"
of court shall have no power to rule on objections to any question or to the

admission of exhibits, which objections shall be resolved by the court upon
submission of his report and the transcripts within ten (10) days from termination of
the hearing.
7. Trial by commissioner (Rule 32)
a. Reference by consent or ordered on motion
Rule 32, Section 1. Reference by consent.
By written consent of both parties, the court may order any or all of the issues in a
case to be referred to a commissioner to be agreed upon by the parties or to be
appointed by the court. As used in these Rules, the word "commissioner" includes
a referee, an auditor and an examiner.
Rule 32, Sec. 2. Reference ordered on motion.
When the parties do not consent, the court may, upon the application of either
or of its own motion, direct a reference to a commissioner in the following cases:
(a) When the trial of an issue of fact requires the examination of a
long account on either side, in which case the commissioner may be
directed to hear and report upon the whole issue or any specific
question involved therein;
(b) When the taking of an account is necessary for the information of
the court before judgment, or for carrying a judgment or order into
effect;
(c) When a question of fact, other than upon the pleadings, arises
upon motion or otherwise, in any stage of a case, or for carrying a
judgment or order into effect.
b. Powers of the commissioner
Rule 32, Sec. 3. Order of reference; powers of the commissioner.
When a reference is made, the clerk shall forthwith furnish the commissioner with
a copy of the order of reference. The order may specify or limit the powers of the
commissioner, and may direct him to report only upon particular issues, or to do
or perform particular acts, or to receive and report evidence only, and may fix
the date for beginning and closing the hearings and for the filing of his report.
Subject to the specifications and limitations stated in the order, the commissioner
has and shall exercise the power to regulate the proceedings in every hearing
before him and to do all acts and take all measures necessary or proper for the
efficient performance of his duties under the order. He may issue subpoenas and
subpoenas duces tecum, swear witnesses, and unless otherwise provided in the
order of reference, he may rule upon the admissibility of evidence. The trial or
hearing before him shall proceed in all respects as it would if held before the
court.
c. Commissioners report; notice to parties and hearing on the report
Rule 32, Sec. 9. Report of commissioner.
Upon the completion of the trial or hearing or proceeding before the
commissioner, he shall file with the court his report in writing upon the matters
submitted to him by the order of reference. When his powers are not specified or
limited, he shall set forth his findings of fact and conclusions of law in his report. He
shall attach thereto all exhibits, affidavits, depositions, papers and the transcript,
if any, of the testimonial evidence presented before him.
Rule 32, Sec. 10. Notice to parties of the filing of report.
Upon the filing of the report, the parties shall be notified by the clerk, and they
shall be allowed ten (l0) days within which to signify grounds of objections to the
findings of the report, if they so desire. Objections to the report based upon
*#"
"
grounds which were available to the parties during the proceedings before the
commissioner, other than objections to the findings and conclusions therein set
forth, shall not be considered by the court unless they were made before the
commissioner.
Rule 32, Sec. 11. Hearing upon report.
Upon the expiration of the period of ten (l0) days referred to in the preceding
section, the report shall be set for hearing, after which the court shall issue an
order adopting, modifying, or rejecting the report in whole or in part, or
recommitting it with instructions, or requiring the parties to present further
evidence before the commissioner or the court.
N. Demurrer to Evidence (Rue 33)
1. Ground
Rule 33, Section 1. Demurrer to evidence.
After the plaintiff has completed the presentation of his evidence, the defendant
may move for dismissal on the ground that upon the facts and the law the plaintiff
has shown no right to relief. If his motion is denied, he shall have the right to present
evidence.
2. Effect of denial
If his motion is denied, he shall have the right to present evidence.
3. Effect of grant
If the motion is granted but on appeal the order of dismissal is reversed he shall
be deemed to have waived the right to present evidence.
4. Waiver of right to present evidence
If the motion is granted but on appeal the order of dismissal is reversed he shall
be deemed to have waived the right to present evidence.
5. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal
case
Civil Case Criminal Case

-defendant does not waive -if the court denies the motion to dismiss, the
his right to offer evidence in accused may adduce evidence in is defense
the event his motion is provided there was leave of court in filing the
denied motion. When the accused files such motion to
- If the motion is granted but dismiss without express leave of court, he waives
on appeal the order of the right to present evidence and submits the
dismissal is reversed he shall case for judgment on the basis of the evidence
be deemed to have waived of the prosecution. (Section 15, Rule 19)
the right to present evidence
-in case of reversal, the
appellate court shall render
judgment for the plaintiff
based on his evidence
alone. (Rule 33, Sec. 1 )
DEMURRER TO EVIDENCE
What is a motion for judgment on demurrer to evidence?
A motion to dismiss filed by the defendant after plaintiff has presented his
evidence on the ground of INSUFFICIENCY OF EVIDENCE.
Effects of filing a motion for judgment on demurrer to evidence:
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"
a. If the motion is GRANTED, the order granting it is a judgment on the

merits, which entitles the plaintiff to appeal.
b. if on appeal, the appellate court REVERSES the order granting the
motion, the defendant LOSES the right to present his own evidence
and loses the case.
c. If the motion is DENIED, the order of denial is an interlocutory order
and the defendant is entitled to present his own evidence.
Distinction between motion to dismiss for failure to state a cause of action and
motion to dismiss based on lack of cause of action.
The first is raised in a motion to dismiss under Rule 16, Sec. 1 (g) before a responsive
pleading is filed and can be determined only from the allegations of the pleading
and not from evidentiary matters. The second is raised in a demurrer to evidence
under Rule 33 after the plaintiff has rested his case and can be resolved only on
the basis of the evidence he has presented in support of his claim(The Manila
Banking Corp. vs. University of Baguio, Inc., G.R. No. 159189, February 21, 2007)
O. Judgments and Final Orders (Rule 36)
1. Judgment without trial
Kinds of Judgment and Definitions
a. Without Reception of Evidence
(1) Judgment on the Pleadings
Where an answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party’s pleading, the court may,
on motion of that party, direct judgment on such pleading. However,
in actions for declaration of nullity or annulment of marriage or for
legal separation, the material facts alleged in the complaint shall
always be proved. (Rule 36, Sec. 1)
(2) Summary Judgment
Summary judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions, and admissions on filed,
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 (Rule 35, Sec. 3)
b. With Partial Reception of Evidence
(1) Judgment by Default
If the defending party fails to answer within the time allowed
therefore, 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 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. (Rules of Court, Rule 9, Sec. 3.)
(2) Judgment on Demurrer to Evidence:
After the plaintiff has completed the presentation of his evidence,
the defendant may move for dismissal on the ground that upon the
facts and the law the plaintiff has shown no right to relief. If his motion
is denied, he shall have the right to present evidence. If the motion is
granted but on appeal the order of dismissal is reversed, he shall be
deemed to have waived the right to present evidence. (Rules of
Court, Rule 33, Sec. 1.)
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A demurrer to evidence is differentiated from a motion to dismiss in

that the former can be availed of only after the presentation of
plaintiffs evidence while the latter is instituted as a general rule before
a responsive pleading is filed.
When the motion for a demurrer to evidence is granted, the
judgment of the court is considered on the merits and so it has to
comply with Rule 36, Section 1, regarding the requirement that
judgment should clearly and distinctly state the facts and the law on
which it is based. If the motion is denied, the order is merely
interlocutory. (Nepomuceno v. Commission on Elections, G.R. No.
60601, December 29, 1983, 126 SCRA 472.)
2. Contents of a judgment
Rule 36 - Section 1. Rendition of judgments and final orders.
A judgment or final order determining the merits of the case shall be in writing
personally and directly prepared by the judge, stating clearly and distinctly the
facts and the law on which it is based, signed by him, and filed with the clerk of
the court. [WPSSF]
Memorandum Decision
Incorporation by reference of a decision of a lower court or portion thereof in the
decision of a higher court if only to avoid the cumbersome reproduction of the
decision of the lower court. The memorandum decision authorized under Section
40 of B.P. Blg. 129 should actually embody the findings of fact and conclusions of
law of the lower court in an annex attached to and made an indispensable part
of the decision. (Solid Homes, Inc. vs. Laserna, G.R. No. 166051, April 8, 2008)
3. Judgment on the pleadings (Rule 34)
What is a judgment on the pleadings?
Judgment by the court upon motion of a plaintiff, counterclaimant, cross-
claimant, or third party plaintiff, where an answer
a. Fails to enter an issue, or
b. Otherwise admits the material allegations of the complaint,
counterclaim, cross-claim or third party claim (Rule 34, Sec. 1).
NOTES:
1. The plaintiff must file a motion for judgment on the pleadings. The court cannot
motu proprio render judgment on the pleadings. (Pineda vs. Guevara, G.R. No.
143188, February 14, 2007)
2. In an action for annulment of judgment on the ground of psychological
incapacity, even if the defendant files an answer ADMITTING all the allegations in
the complaint, the plaintiff may not move for judgment on the pleadings. The
court should order the prosecutor to investigate whether or not a COLLUSION
exists between the parties. If there is collusion, the case should be dismissed. If
there is no collusion, the prosecutor should intervene for the State in order to see
if the evidence submitted is not fabricated (Rule 9, Sec. 3 (e).
If there is no controverted matter in the case after the answer is filed, the trial court
has the discretion to grant a motion for judgment on the pleadings filed by a
party. Where there are actual issues raised in the answer, such as one involving
damages, which require the presentation of evidence and assessment thereof by
the trial court, it is improper for a judge to render judgment based on the
pleadings alone. (Spouses Hontiveros v. Regional Trial Court of Iloilo, Br. 25, G.R.
No. 125465, June 29, 1999, 309 SCRA 340.)
The trial court may render a judgment on the pleadings upon motion of the
claiming party when the defending party's answer fails to tender an issue, or
otherwise admits the material allegations of the adverse party's pleading. For that
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"
purpose, only the pleadings of the parties in the action are considered. It is error
for the trial court to deny the motion for judgment on the pleadings because the
defending party's pleading in another case supposedly tendered an issue of fact.
(Fernando Medical Enterprises, Inc. vs. Wesleyan University Philippines, Inc., G.R.
No. 207970, January 20, 2016) - LPB
4. Summary judgments (Rule 35)
What is a summary judgment?
One granted by the court, upon motion of either party, for an expeditious
settlement of the case, there appearing from the pleadings, depositions,
admissions and affidavits that NO GENUINE ISSUES OF FACT are involved (except
the determination of the amount of damages) and that therefore the moving
party is entitled to a judgment as a matter of law.
It is also proper where the facts appear undisputed and certain from the
pleadings, depositions, admissions and affidavits, so that the ONLY ISSUE is ONE
OF LAW.
What are the bases of summary judgment?
1. Affidavits made on personal knowledge;
2. Depositions of the adverse party or a third party under Rule 23;
3. Admissions of the adverse party under Rule 26; and
4. Answers to interrogatories under Rule 25. All intended to show that:
a. There is no genuine issue as to any material fact,
except damages which must always be proved; and
b. The movant is entitled to a judgment as a matter of
law.
NOTES:
1. Genuine issue - issue of law which calls for the PRESENTATION OF
EVIDENCE as distinguished from an issue which is sham, fictitious,
contrived, set up in bad faith and patently unsubstantial so as not to
constitute a genuine issue for trial (Paz vs. CA, 181 SCRA 26 [1990]).
2. Although an answer may on its face tender issues requiring trial, yet
if its demonstrated by affidavits, depositions or admission is that those
issues are NOT GENUINE but sham or fictitious, the court is justified in
DISPENSING WITH THE TRIAL and rendering judgment for plaintiff.
a. for the claimant
Rule 35 Section 1. Summary judgment for claimant.
A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain
a declaratory relief may, at any time after the pleading in answer thereto has
been served, move with supporting affidavits, depositions or admissions for a
summary judgment in his favor upon all or any part thereof.
b. for the defendant
Rule 35, Sec. 2. Summary judgment for defending party.
A party against whom a claim, counterclaim, or cross-claim is asserted or a
declaratory relief is sought may, at any time, move with supporting affidavits,
depositions or admissions for a summary judgment in his favor as to all or any part
thereof.
c. when the case not fully adjudicated
Rule 35, Sec. 4. Case not fully adjudicated on motion.
If on motion under this Rule, judgment is not rendered upon the whole case or for
all the reliefs sought and a trial is necessary, the court at the hearing of the motion,
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by examining the pleadings and the evidence before it and by interrogating

counsel shall ascertain what material facts exist without substantial controversy
and what are actually and in good faith controverted. It shall thereupon make
an order specifying the facts that appear without substantial controversy,
including the extent to which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the action as are just. The
facts so specified shall be deemed established, and the trial shall be conducted
on the controverted facts accordingly.
d. affidavits and attachments
Rule 35, Sec. 5. Form of affidavits and supporting papers.
Supporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.
Certified true copies of all papers or parts thereof referred to in the affidavit shall
be attached thereto or served therewith. (5a, R34)
Rule 35, Sec. 6. Affidavits in bad faith.
Should it appear to its satisfaction at any time that any of the affidavits presented
pursuant to this Rule are presented in bad faith, or solely for the purpose of delay,
the court shall forthwith order the offending party or counsel to pay to the other
party the amount of the reasonable expenses which the filing of the affidavits
caused him to incur, including attorney’s fees. It may, after hearing, further
adjudge the offending party or counsel guilty of contempt.
In a motion for summary judgment, the crucial question is: are the issues raised in
the pleadings genuine, sham or fictitious, as shown by affidavits, depositions or
admissions accompanying the motion? A GENUINE ISSUE means an issue of fact
which calls for the presentation of evidence. The plaintiff cannot be said to have
admitted the averments in the defendants motion for partial summary judgment
and its supporting affidavit just because he failed to file an opposing affidavit.
Section 3, Rule 35 did not make the submission of an opposing affidavit
mandatory. (Manufacturers Hanover Trust Co. vs. Guerrero, G.R. No. 136804,
February 19, 2003)
When, on their face, the pleadings tender a genuine issue, summary judgment is
not proper. (Evadel Realty and Development Corporation vs. Soriano, G.R. No.
144291, April 20, 2001). The test for the propriety of a motion for summary judgment
is whether the pleadings, affidavits and exhibits in support of the motion are
sufficient to overcome the opposing papers and to justify the findings that, as a
matter of law, there is no defense to the action or the claim is clearly meritorious.
(Estrada vs. Consolacion, No. L-40948, June 29, 1976)
In summary judgments, the trial court can determine a genuine issue on the basis
of the pleadings, admissions, documents, affidavits or counter affidavits
submitted by the parties. When the facts as pleaded appear uncontested or
undisputed, then there is no real or genuine issue or question as to any fact, and
summary judgment is called for (Bitanga vs. Pyramid Construction Engineering
Corp., G.R. No. 173526, August 28, 2008).
Mere denials, unaccompanied by any fact which would be admissible in
evidence at a hearing, are not sufficient to raise a genuine issue of fact sufficient
to destroy a motion for summary judgment even though such issue was formally
raised by the pleadings. (Warner, Barnes & Co., Ltd. v. Luzon Surety Co., Inc., 95
Phil. 924 [1954].)
Courts are without discretion to deny a motion for summary judgment where there
is no genuine issue as to a material fact. Summary judgment is available even if
the pleadings ostensibly show genuine issue which by depositions or affidavits are
shown not to be genuine. (Diman v. Alumbres, G.R. No. 131466, November 27,
1998, 299 SCRA 459)
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A partial summary judgment may be rendered (Rule 35, Sec. 4) but the same is
interlocutory and not appealable. (Guevarra v. Court of Appeals, Nos. L-49024,
August 30, 1983, 124 SCRA 297.)
5. Judgment on the pleadings versus summary judgments
a. In judgment on the pleadings, the answer either does not tender
an issue or otherwise admits all the allegations in the complaint, while
the answer in summary judgment tenders some issues but these issues
are not genuine so they require no judicial determination.
b. It is the plaintiff, counterclaimant, cross-claimant or third party
plaintiff who avails of the remedy of a judgment on the pleadings
while summary judgment may be asked by the claimant or
defending party.
c. Judgment on the pleadings is based only on the pleadings while
summary judgment is based not only on the pleadings but also on
affidavits, admissions, depositions and other documents
d. In judgment on the pleadings there is no specific requirement
when the notice shall be served on the opposing party, hence it
should be served at least three (3) days before the date of the
hearing which in turn must not be later than ten (10) days after filing
of the motion, while a motion for summary judgment shall be served
at least ten (10) days before the date specified for hearing which in
turn must not be later than ten (10) days after filing of the motion.
6. Rendition of judgments and final orders
Rule 36 - Section 1. Rendition of judgments and final orders.
A judgment or final order determining the merits of the case shall be in writing
personally and directly prepared by the judge, stating clearly and distinctly the
facts and the law on which it is based, signed by him, and filed with the clerk of
the court. [ WPSSF]
7. Entry of judgments and final orders
Rule 36, Sec. 2. Entry of judgments and final orders.
If no appeal or motion for new trial or reconsideration is filed within the time
provided in these Rules, the judgment or final order shall forthwith be entered by
the clerk in the book of entries of judgments. The date of finality of the judgment
or final order shall be deemed to be the date of its entry. The record shall contain
the dispositive part of the judgment or final order and shall be signed by the clerk,
with a certificate that such judgment or final order has become final and
executory.
P. Post Judgment Remedies
1. Motion for New Trial or reconsideration (Rule 37)
a. Grounds
What are the grounds for a motion for new trial?
One or more of the following causes affecting the substantial rights of the
aggrieved party:
a. Fraud, accident, mistake or excusable negligence (FAME) which
ORDINARY PRUDENCE could not have guarded against and by
reason of which such aggrieved party had probably been IMPAIRED
IN HIS RIGHTS; or
b. Newly discovered evidence (NDE) which he could not, with
REASONABLE DILIGENCE, have discovered and produced at the trial,
and which if presented would probably ALTER THE RESULT (Rule 37,
Sec. 1).
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a. Fraud, accident, mistake, excusable negligence [FAME]

(1) Fraud must be extrinsic or collateral, the kind of fraud which
prevented the aggrieved party from having a trial or presenting his
case to the court, or was used to procure the judgment without fair
submission of the controversy. Examples: acts intended to keep the
unsuccessful party away from the court by a false promise of
compromise, or purposely keeps him in ignorance of the suit, or
where the attorney fraudulently pretends to represent a party and
connives at his defeat, or corruptly sells out his clients interest. (Magno
v. Court of Appeals, N. L-28486, September 10, 1981, 107 SCRA 819.)
Distinguished from intrinsic fraud which refers to the acts of a party at
the trial which prevented a fair and just determination of the case
(Palanca v. American Food Manufacturing Co., Inc., No. L-22822,
August 30, 1968, 24 SCRA 819.) and which could have been litigated
and determined at the trial or adjudication of the cases, such as
falsification, false testimony and so forth, and does not constitute a
ground for new trial. (Tarca v. Vda. De Carretero, 99 Phil. 419 [1956];
Conde v. Intermediate Appellate Court, No. L-70443, September 15,
1986, 144 SCRA 144)
(2) Mistake generally refers to mistakes of fact but may also include
mistakes of law where, in good faith, the defendant was misled in the
case. Thus, a mistake as to the scope and extent of the coverage of
an ordinance, (City of Iloilo v. Pinzon, 97 Phil.968 [Unreported] [1955].)
or a mistake as to the effect of a compromise agreement upon the
need for answering a complaint, (Salazar v. Salazar, 8 Phil. 183
[1907].) although actually constituting mistakes of law, have been
considered sufficient to warrant a new trial.
(3) Negligence must be excusable and generally imputable to the
party but the negligence of counsel is binding on the client just as the
latter is bound by the mistakes of his lawyer. (Gaba v. Castro, No. L-
56171, January 1, 1983, 120 SCRA 505; Ayllon v. Sevilla, No. L-79244,
December 10, 1987, 156 SCRA 257.) However, negligence of the
counsel may also be a ground for new trial if it was so great such that
the party was prejudiced and prevented from fairly presenting his
case. (People v. Manzanilla, 43 Phil. 167 [1922]; cf. Republic v. Arro,
No. L-48241, June 11, 1987, 150 SCRA 625.)
A motion for new trial based on FAME shall be supported by affidavits of merits
which may be rebutted by affidavits.
An affidavit of merits is one which states:
a) the nature or character of the fraud, accident, mistake or
excusable negligence on which the motion for new trial is based;
b) the facts constituting the movants good and substantial defenses
or valid causes of action (Ferrer v. Yap Sepeng, No. L-39373,
September 30, 1974, 60 SCRA 149.)
An affidavit of merits should state facts and not mere opinions or conclusions of
law. (Malipol v. Tan, No. L-27730, January 2, 1974, 55 SCRA 202). Affidavits of merits
may be dispensed with when the judgment is null and void as where the court
has no jurisdiction over the defendant or the subject matter (Republic v. De Leon,
101 Phil. 773 [1957]) or is procedurally defective as where judgment by default
was rendered before the reglementary period to answer had expired, as when
no notice of hearing was furnished him in advance. (Solaria v. Cruz, G.R. No.
20738, January 31, 1966, 16 SCRA 114). Affidavits of merits are not required in
motions for reconsideration (Mendoza v. Bautista, No. L-45885, April 8, 1983, 121
SCRA 760).
b. Newly discovered evidence [NDE]
**"
"
To warrant a new trial, newly discovered evidence

- must have been discovered after trial;
- could not have been discovered and produced at the trial despite
reasonable diligence;
- if presented would probably alter the result of the action. (National
Shipyards and Steel Corporation vs. Asuncion, 103 Phil. 67 [1958].)
Mere initial hostility of a witness at the trial does not constitute his
testimony into newly discovered evidence. (Arce vs. Arce, 106 Phil.
630 [1959].)
Is a second motion for new trial allowed?
Yes. A second motion for new trial is authorized. A motion for new trial shall include
all grounds then available and those not so included are deemed waived.
However, when a ground for a new trial was not existing or available when the
first motion was made, a second motion for new trial may be filed within the
period allowed but excluding the time during which the first motion had been
pending (Rule 37, Sec. 5).
What are the grounds for a motion for reconsideration?
a. the damages awarded are excessive;
b. the evidence is insufficient to justify the decision; or
c. the decision is contrary to law (Rule 37, Sec. 1). [DED]
Is a second motion for reconsideration allowed?
NO. A second motion for reconsideration of a judgment or final order is not
allowed. (Rule 37, Sec. 5). However, there may be second motion for
reconsideration of an interlocutory order.
Is a motion for extension of time to file a motion for new trial or reconsideration
allowed?
NO. A motion for extension of time to file a motion for new trial or reconsideration
is not allowed(Rule 40, Sec. 2; Rule 41, Sec. 3).
Exception: Said motion can be filed in the SUPREME COURT (Habaluyas Enterprises
vs. Japson, 142 SCRA 208 [1988]; Argel vs. CA, 316 SCRA 511 [1999]).
What is a pro forma motion for reconsideration and its effect?
When sufficient in form and substance, a motion for reconsideration satisfies the
requirements of Rule 37 and interrupts the running of the period of appeal.
A motion for reconsideration that does not comply with the requirements will be
treated as pro forma intended merely to delay the proceedings and thus will NOT
STAY OR SUSPEND the reglementary period (Marikina Valley Development
Corporation vs. Flojo, 251 SCRA 87 [1995]).
A pro forma motion for new trial and reconsideration does not toll the
reglementary period (Rule 37, Sec. 2, last sentence).
Although a motion for reconsideration may merely reiterate issues already passed
upon by the court, that by itself does not make it pro forma.
Otherwise, after the decision is rendered, the losing party would be confined to
motions for reopening and new trial (Marina Properties Corporation vs. CA, 294
SCRA 273 [1998]).
b. When to file
1. Time to File
A motion for reconsideration or new trial may be filed within the
period for taking appeal. Note that a pro forma motion for new trial
or reconsideration shall not toll the reglementary period. A pro forma
!++"
"
motion for reconsideration or new trial is one which does not comply
with the requirements of Rule 37 and does not toll the reglementary
period to appeal. (Cledera vs. Sarmiento, Nos. L-32450-51, June 10,
1971, 39 SCRA 552; Firme vs. Reyes, No. 35858, August21, 1979, 92
SCRA 713.)
2. A motion for reconsideration or new trial suspends the running of
the period to appeal but if denied, the movant has only the balance
of the reglementary period within which to take his appeal. (Rule 41,
Sec. 3 ). This is subject to Neypes vs. CA ruling.
c. Denial of the motion; effect
Rule 37, Sec. 9. Remedy against order denying a motion for new trial or
reconsideration.
An order denying a motion for new trial or reconsideration is NOT APPEALABLE,
the remedy being an appeal from the judgment or final order.
d. Grant of the motion; effect
Rule 37, Sec. 6. Effect of granting of motion for new trial.
If a new trial is granted in accordance with the provisions of this Rule, the original
judgment or final order shall be vacated, and the action shall stand for trial de
novo; but the recorded evidence taken upon the former trial, in so far as the same
is material and competent to establish the issues, shall be used at the new trial
without retaking the same.
Rule 39, Sec.7. Partial new trial or reconsideration.
If the grounds for a motion under this Rule appear to the court to affect the issues
as to only a part, or less than all of the matter in controversy, or only one, or less
than all, of the parties to it, the court may order a new trial or grant
reconsideration as to such issues if severable without interfering with the judgment
or final order upon the rest.
Rule 37, Sec. 8. Effect of order for partial new trial.
When less than all of the issues are ordered retried, the court may either enter a
judgment or final order as to the rest, or stay the enforcement of such judgment
or final order until after the new trial.
e. Remedy when motion is denied, Fresh 15-day period rule
Rule 37, Sec. 9. Remedy against order denying a motion for new trial or
reconsideration.
An order denying a motion for new trial or reconsideration is not appealable, the
remedy being an appeal from the judgment or final order.
In ordinary appeal under Rules 40 and 41, a party is now given a fresh period of
15 days from denial of motion for reconsideration or new trial within which to file
notice of appeal (Neypes vs. CA, G.R. No. 141524, September 14, 2005)
2. Appeals in General
a. Judgments and final orders subject to appeal
What can be appealed?
Only a final order or judgment on the merits may be the subject of an appeal.
Final order one which disposes of the whole subject matter or terminates a
particular proceeding or action, leaving nothing to be done but to enforce by
executing what has been determined.
Interlocutory order one which does not dispose of the case completely but leaves
something to be done upon its merits.
Remedies against Judgments or Final Orders
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"
Remedies BEFORE finality of judgment

1. Motion for reconsideration
Motion for new trial
2. Appeal
a. Ordinary appeal
Rule 40
Rule 41
b. Petition for review
Rule 42
Rule 43
c. Petition for review on certiorari
Rule 45
Remedies AFTER finality of judgment
1. Petition for certiorari
2. Petition for relief from judgment
3. Petition for annulment of judgment
APPEAL AND REVIEW
Election of proper mode of appeal or review depends on whether or not subject
judgment or order has become final and unappealable.
A. Not Yet Final and Unappealable there are three modes of reviewing on appeal
a judgment or final order:
1. Ordinary Appeal
a. perfected by filing a notice of appeal in the trial court within the
period specified in the Rules of Court.
b. appeal will be upon errors or questions of fact and law.
c. this mode applies to final judgments or orders:
of MTC to RTC (Rule 40)
of RTC (rendered in the exercise of original jurisdiction)
to CA (Rule 41)
of RTC to SB (PD 1606, am. by RA 8249)
of RTC to CA (Rule 122, as am. by A.M. No. 00-5-03-SC,
Oct. 15, 2004)
of SB to SC (P.D. 1606, as am. by RA 8249)
of CA to SC (Rule 124, as am. by A.M. No. 00-5-03-SC,
Oct. 15, 2004)
2. Petition for Review
a. to CA
b. from RTC - if judgment to be appealed from is rendered in the
exercise of its appellate jurisdiction (Rule 42)
c. from quasi-judicial agency (Rule 43)
3. Petition for Review on Certiorari
a. to SC under Rule 45
b. upon pure questions of law
c. from RTC, CA, SB or CTA
!+#"
"
B. Final and Unappealable An already UNAPPEALABLE judgment or final order

which can no longer be subject to review on its merits may still be ANNULLED OR
SET ASIDE thru any of the following modes:
1. Petition for Certiorari under Rule 65.
- ground: judgment rendered without or in excess of
jurisdiction, or grave abuse of discretion amounting to
lack of jurisdiction
2. Petition for Relief FROM JUDGMENT under Rule 38.
- grounds: fraud, accident, mistake, excusable
negligence
3. Petition for Annulment OF JUDGMENT under Rule 47
- grounds: extrinsic fraud or lack of jurisdiction
b. Matters not appealable
What are the orders not subject to appeal?
Sec. 1, Rule 41 expressly prohibits taking an appeal from certain orders, by
expressly providing that the remedy of the aggrieved party is to file an
appropriate special civil action under Rule 65:
Those which cannot be appealed:
1) An order denying a motion for new trial or reconsideration;
(Deleted by A.M. No. 07-7-12-SC dated December 4, 2007, which
took effect on December 27, 2007, governing amendments to Rules
41, 45, 58 and 65. Effect: neither appeal nor certiorari is a remedy.
The remedy is appeal from the judgment or final order [Sec. 9, Rule
37]. However, certiorari may be availed of if the order subject of the
motion for reconsideration is an interlocutory order)
Exceptions:
1. The denial of the motion for reconsideration of an order of dismissal of a
complaint is not an interlocutory order, however, but a final order as it puts an end
to the particular matter resolved, or settles definitely the matter therein disposed
of, and nothing is left for the trial court to do other than to execute the order.
Not being an interlocutory order, an order denying a motion for reconsideration
of an order of dismissal of a complaint is effectively an appeal of the order of
dismissal itself.
If the proscription against appealing an order denying a motion for
reconsideration is applied to any order, then there would have been no need to
specifically mention in both above-quoted sections of the Rules "final orders or
judgments" as subject of appeal. In other words, from the entire provisions of Rules
39 and 41, there can be no mistaking that what is proscribed is to appeal from a
denial of a motion for reconsideration of an interlocutory order. (Quelnan vs. VHF
Philippines, G.R. No. 145911, July 7, 2004)
The same ruling was made in Neypes vs. Court of Appeals (G.R. No. 141524,
September 14, 2005).
2. What therefore should be deemed as the "final order," receipt of which triggers
the start of the 15-day reglementary period to appeal the February 12, 1998 order
dismissing the complaint or the July 1, 1998 order dismissing the MR?
We sustain petitioners view that the order dated July 1, 1998 denying their motion
for reconsideration was the final order contemplated in the Rules. Shell and
Tabangaos appeal, albeit seemingly directed only at the October 5, 1999 denial
of their motion for reconsideration, was proper. Thus, we sustain the CAs denial for
being in accord with the rules and pertinent precedents. We further point out that
for petitioners to insist that the appeal was limited only to the assailed resolution
!+$"
"
of October 5, 1999 was objectively erroneous, because Shell and Tabangao

expressly indicated in their appellants brief that their appeal was directed at both
the February 3, 1998 decision and the October 5, 1999 resolution (Mendiola vs.
Court of Appeals, G.R. No. 159746, July 18, 2012) - LPB
3. Rule 41, Section 1, paragraph (a) of the Rules of Court, which provides that "[n]o
appeal may be taken from [a]n order denying a x x x motion for reconsideration,"
is based on the implied premise in the same section that the judgment or order
does not completely dispose of the case. The pertinent portion of Rule 41, Section
1 provides:
Section 1. Subject of appeal. An appeal may be taken from a judgment or final
order that completely disposes of the case, or of a particular matter therein when
declared by these Rules to be appealable.
In other words, what Section 1 of Rule 41 prohibits is an appeal taken from an
interlocutory order. An interlocutory order or judgment, unlike a final order or
judgment, does "not completely dispose of the case [because it leaves to the
court] something else to be decided upon. Appeals from interlocutory orders are
generally prohibited to prevent delay in the administration of justice and to
prevent "undue burden upon the courts.
Orders denying motions for reconsideration are not always interlocutory orders. A
motion for reconsideration may be considered a final decision, subject to an
appeal, if "it puts an end to a particular matter," leaving the court with nothing
else to do but to execute the decision.
"An appeal from an order denying a motion for reconsideration of an order of
dismissal of a complaint is effectively an appeal of the order of dismissal itself. " It
is an appeal from a final decision or order.
The trial courts order denying petitioner Republic of the Philippines motion for
reconsideration of the decision granting respondent Ortigas the authority to sell
its property to the government was not an interlocutory order because it
completely disposed of a particular matter. An appeal from it would not cause
delay in the administration of justice.
(Republic vs. Ortigas and Company Limited Partnership, G.R. No.171496, March 3,
2014)
*** The denial of a motion for reconsideration of an order granting the defending
party’s motion to dismiss is not an interlocutory but a final order because it puts
an end to the particular matter involved, or settles definitely the matter therein
disposed of, as to leave nothing for the trial court to do other than to execute the
order. Accordingly, the claiming party has a fresh period of 15 days from notice
of the denial within which to appeal the denial. The prohibition against appealing
an order denying a motion for reconsideration refers only to a denial of a motion
for reconsideration of an interlocutory order. (Alma Jose vs. Javellana, G.R. No.
158239, January 25, 2012) - LPB
1) An order denying a petition for relief or any similar motion seeking
relief from judgment;
2) An interlocutory order;
3) An order disallowing or dismissing an appeal;
4) 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;
5) An order of execution;
6) 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
!+%"
"
7) An order dismissing an action without prejudice.

The remedy against a dismissal of an action without prejudice is to file another
action, unless there are grounds for commencing a special civil action for
certiorari.
Under Sec. 5, Rule 18 (Pre-trial) , failure of plaintiff to appear at the pre-trial
conference shall be a cause for dismissal of the action. - - This dismissal shall be
with prejudice unless otherwise ordered by the court.
If the dismissal is expressly stated to be without prejudice, plaintiff cannot appeal
because he can file another action.
If the dismissal is with prejudice, remedy of plaintiff is to appeal from the order of
dismissal, which, being with prejudice, is a final resolution of the case.
c. Remedy against judgments and orders which are not appealable
In all of the above instances where the judgment or final order is not appealable,
the aggrieved party may file an appropriate special civil action under Rule 65.
(Rule 41, Sec. 1.)
Final Judgment Rule; Exceptions
Amendment of judgment before it becomes final and executory
Courts have inherent power to amend their judgments, to make them
conformable to the law applicable provided that said judgments have not yet
attained finality. In fact, motions for reconsideration are allowed to convince the
court that their rulings are erroneous and improper (Eternal Gardens Memorial vs.
IAC, 165 SCRA 439 [1988]).
When it finds that the ends of justice would be better served, the court may
disregard technicalities and amend its order or process that had not become final
(Villanueva vs. CFI of Oriental Mindoro, 119 SCRA 288)
A final judgment cannot be modified anymore.
When a final judgment becomes executory it becomes immutable and
unalterable.
The judgment may no longer be modified in any respect, even if the modification
is meant to correct what is perceived to be an erroneous conclusion of fact or
law, and regardless of whether the modification is to be made by the court
rendering it or by the highest court of the land. Any amendment or alteration
which substantially affects a final and executory judgment is null and void for lack
of jurisdiction, including the entire proceedings held for that purpose (Nunal vs.
CA, 221 SCRA 26 [1993]).
Instances where a court has authority to amend judgments that are already final
a. Correction of clerical errors; nunc pro tunc entries which cause no
prejudice to any party; where judgment is void (Nunal vs. CA, supra).
b. Where there is an AMBIGUITY caused by an omission or mistake in
the dispositive portion of a decision, the court may clarify such
ambiguity by an amendment even after the judgment had become
final. For this purpose, it may resort to the pleadings filed by the
parties and the courts findings of fact and conclusions of law
expressed in the body of the decision (Presbiterio vs. CA, 129 SCRA
450).
c. Where FACTS AND CIRCUMSTANCES transpire which render its
execution IMPOSSIBLE AND UNJUST and it therefore becomes
necessary in the interest of justice, to direct its modification in order
to harmonize the disposition with the prevailing circumstances.
Example: As observed by the Solicitor General, it may be true that the amount of
backwages and other benefits due to the private respondents as recomputed, is
!+&"
"
not in harmony with the literal import of the dispositive portion of the decision
subject of execution. However, at the time the recomputation was made in 1992,
5 years had already elapsed from the time the labor arbiter rendered his decision
on February 26, 1987. Thus, a recomputation was necessary to arrive at a just and
proper determination of the monetary awards due the private respondents.
(Industrial Timber Corp. vs. NLRC, 233 SCRA 597 [1994])
Once a judgment becomes immutable and unalterable by virtue of its finality, its
execution should follow as a matter of course. A supervening event, to be
sufficient to stay or stop the execution, must alter or modify the situation of the
parties under the decision as to render the execution inequitable, impossible, or
unfair. The supervening event cannot rest on unproved or uncertain facts. The
contention of petitioners that the sale by Jimmy Flores to them of his 1/4 share in
the western portion of the 402-square meter lot under the deed of sale dated
March 4, 1998 was a supervening event that rendered the execution inequitable
is devoid of merit. (Abrigo vs. Flores, G.R. No. 160786, June 17, 2013) - LPB
Petitioners claim that their former counsel was guilty of gross negligence for letting
the CA decision lapse into finality by not filing a motion for reconsideration or by
not appealing in due course to the Court. The Court will not override the finality
and immutability of a judgment based only on the negligence of a party’s counsel
in timely taking all the proper recourses from the judgment. To justify an override,
the counsels negligence must not only be gross but must also be shown to have
deprived the party the right to due process. (Sofio vs. Valenzuela, G.R. No. 157810,
February 15, 2012) - LPB
Where judgment has become final, what is the remedy for inclusion of a party-
heir?
After the decision became final and executory, the trial judge lost jurisdiction over
the case. Any modification that he would make, i.e., the inclusion of Mary Lyon
Martin would be in excess of his authority. The remedy of Mary is to file an
INDEPENDENT SUIT against the parties and all other heirs for her share in the subject
property, in order that all the parties in interest can prove their respective claims
(Nunal vs. CA, supra).
What is a judgment nunc pro tunc?
Literally, it means judgment now for then. One issued by a court as though it was
done when it ought to have been done, as when a judgment rendered some
years back which had not been recorded in the entry of judgment is ordered to
be so recorded, so that a writ of execution could be issued upon motion of the
prevailing party within the reglementary period.
It can only be issued when the thing ordered has previously been made, but by
inadvertence has not been entered. It cannot be issued to make material
change or amendment in a final decision
What is a supplemental judgment?
A supplemental judgment does not take the place or extinguish the original
judgment. It only serves to bolster or add something to the primary decision. A
supplement EXISTS SIDE BY SIDE with the original. It does not replace that which it
supplements
What is an amended judgment?
The lower court makes a study of the original judgment and renders the amended
and clarified judgment only after considering all the factual and legal issues. It is
an entirely new decision which SUPERSEDES the original decision.
What is obiter dictum?
It is an opinion expressed by a court, which is not necessary to the decision of the
case before it. It is neither enforceable as a relief nor a source of a judicially
actionable claim.
!+'"
"
What is the principle of stare decisis et non quieta movere?

It holds that a point of law, once established by the court, will generally be
followed by the same court and by all courts of lower rank in subsequent cases
involving a similar legal issue. This proceeds from the legal principle that, in the
absence of powerful countervailing considerations, like cases ought to be
decided alike.
It is founded on the necessity of securing certainty and stability in the law and
does not require identity of or privity of parties
d. Modes of appeal
(1) Ordinary appeal
ORDINARY APPEAL -- RULES 40 and 41
Rule 40 from MTC to RTC
Rule 41 from RTC to CA
What Rules 40 and 41 have in common
Same period to appeal 15 days from notice of judgment or final order; 30 days
where record on appeal is required (in certain sp. proc. and other cases of
multiple or separate appeals).
How appeal taken
1. filing notice of appeal(indicating parties to the appeal, judgment
or final order or part thereof appealed from, specify court to which
appeal is being taken {applies to appeal from RTC} and state
material dates showing timeliness of appeal) or notice of appeal plus
record on appeal with the court that rendered judgment or final
order.
2. service of copy on adverse party
3. payment of full amount of appellate court docket and other lawful
fees [Secs. 3 & 5, Rule 40; Secs. 2 & 5, Rule 41]
NOTES:
1. Period to file notice of appeal cannot be extended. No motion to
that effect shall be allowed.
2. 15 or 30 day period interrupted by timely filing of motion for new
trial or reconsideration.
3. Filing of motion for new trial and reconsideration cannot be
extended (exc. by the Supreme Court).
4. Appellant has only remaining period to file notice of appeal after
denial of motion for new trial or reconsideration.
WHEN MOTION FOR RECONSIDERATION FILED ON LAST DAY OF 15 DAY PERIOD
That day should be excluded so that when he received copy of order denying his
MR, he still has 1 day within which to perfect his appeal, excluding the day of
receipt and including the next day (BPA Data Systems Corp. v. CA, 254 SCRA 56
[1996]; Manila Memorial Park Cemetery Inc. v. CA, 344 SCRA 769 [2000])
Same effect filed on 14th day.
N.B. not less than 5 days in any event rule applies only to filing of answer after
denial of motion to dismiss (Rule 16, Sec. 4) ; denial of motion for bill of particulars
or service of BOP (Rule 12, Sec. 5) ; denial of motion to dismiss in interpleader (Rule
62, Sec. 4) ; and filing of petition for certiorari against COA and COMELEC
decisions (Rule 64, Sec. 3).
5. Fresh period of 15 days from denial of motion for reconsideration or new trial
!+("
"
(Neypes vs. CA, 469 SCRA 633 [2005]).

Same manner of perfection - Perfection of appeal and effect thereof in both
appeals from MTC to RTC and RTC to CA governed by Sec. 9, Rule 41.
When is appeal deemed perfected?
Appeal by NOTICE OF APPEAL deemed perfected as to him upon filing of NOA in
due time.
Appeal by RECORD ON APPEAL deemed perfected as to him with respect to
subject matter thereof upon approval of ROA filed in due time.
Payment of docket fees mandatory for perfection of appeal (Yambao vs. CA,
346 SCRA 141).
The general rule is that the perfection of an appeal in the manner and within the
period prescribed by law is, not only mandatory, but jurisdictional, and failure to
conform to the rules will render the judgment sought to be reviewed final and
unappealable. By way of exception, unintended lapses are disregarded so as to
give due course to appeals filed beyond the reglementary period on the basis of
strong and compelling reasons, such as serving the ends of justice and preventing
a grave miscarriage thereof. In this case, the last day for filing the petition for
review was on September 13, 2006. The petitioners entrusted the drafting of their
petition with their counsel, who in turn entrusted the attaching of the required
annexes to the petition with her secretary. The secretary resigned from her job
sometime later to avoid giving her employer "problems for unexpected absences
in the future. " Aside from this, the petitioners also submitted an Affidavit from the
secretary, who narrated her ordeal that day and why she was not able to inform
her employer of the whereabouts of the petition. A certification from the doctor
of one of the secretary’s children was also submitted to prove that the secretary
indeed brought her children to the doctor on September 14, 2006, the deadline
for filing the petition for review with the Court of Appeals. (Heirs of Rodolfo
Crisostomo vs. Rudex International Development Corporation, G.R. No. 176129,
August 24, 2011)
When does the court lose jurisdiction?
Appeal by NOTICE OF APPEAL upon perfection of appeals filed in due time and
expiration of time to appeal of other parties.
Appeal by RECORD ON APPEAL only over subject matter thereof upon approval
of records on appeal filed in due time AND expiration of time to appeal of other
parties.
Residual powers
Sec. 9, last par., Rule 41, applicable to MTC pursuant to Sec. 9, Rule 40 (Other
provs. 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. )
Prior to transmittal of original record or record on appeal, the court may
1. Issue orders for the protection and preservation of the rights of the
parties which do not involve any matter litigated in the appeal.
2. Approve compromises
3. Permit appeals of indigent parties
4. Order execution pending appeal in acc. with Sec. 2, Rule 39.
5. Allow withdrawal of appeal [IAPOA]
Power to dismiss appeal
Sec. 13, Rule 41. Dismissal of appeal Prior to transmittal of original record or record
on appeal to appellate court, trial court may dismiss the appeal for:
a. Having been taken out of time.
!+)"
"
b. Non-payment of docket and other lawful fees within reglementary

period. .
NOTES:
1. Payment of prescribed docket fees within the prescribed period,
both mandatory and jurisdictional, noncompliance with which is
fatal to an appeal. Without such payment, the appeal is not
perfected (Cu-Unjieng vs. CA, 479 SCRA 594 [2006])
2. Non-payment of docket fees within prescribed period -- ground for
dismissal of an appeal; rules relaxed only for the most persuasive and
weighty reasons (Far Corporation vs. Magdaluyo, 443 SCRA 218
[2004]).
Regional trial courts have jurisdiction over complaints for recovery of ownership or
accion reivindicatoria. Section 8, Rule 40 of the Rules on Civil Procedure
nonetheless allows the RTC to decide the case brought on appeal from the MTC
which, even without jurisdiction over the subject matter, may decide the case on
the merits. In the instant case, the MTC of Mambajao should have dismissed the
complaint outright for lack of jurisdiction but since it decided the case on its
merits, the RTC rendered a decision based on the findings of the MTC. (Provost vs.
CA, G.R. No. 160406,June 26, 2006).
The RTC should have taken cognizance of the case. If the case is tried on the
merits by the Municipal Court without jurisdiction over the subject matter, the RTC
on appeal may no longer dismiss the case if it has original jurisdiction thereof.
Moreover, the RTC shall no longer try the case on the merits, but shall decide the
case on the basis of the evidence presented in the lower court, without prejudice
to the admission of the amended pleadings and additional evidence in the
interest of justice. (Encarnacion vs. Amigo, G.R. No. 169793, September 15, 2006).
(2) Petition for review
PETITION FOR REVIEW RULES 42 and 43
Rule 42 governs petitions for review of decisions of RTC in exercise of appellate
jurisdiction over cases decided by MTC.
Special Agrarian Court decisions (LBP vs. De Leon, 388 SCRA 537; LBP vs. De Leon,
399 SCRA 376).
Rule 43 - petition for review of decisions, final orders, resolutions of quasi-judicial
agencies such as CSC, SEC, OP, LRA, SSS, GSIS, NEA, ERC, ECC, CAB, CIAC, BOI,
PAEC, etc.
1. DARAB decisions (Valencia vs. CA, 401 SCRA 666) exc. grave
abuse of discretion (Fortich vs. Corona, 289 SCRA 624).
2. Voluntary arbitrators (Sevilla Trading Co. vs. A.V.A. Tomas E.
Semana, et al., 428 SCRA 239).
3. Ombudsman resolutions or orders in administrative disciplinary
cases
Fabian v. Desierto (295 SCRA 470) - Sec. 27, RA 6770 providing appeal
direct to SC from administrative disciplinary cases unconstitutional as
no concurrence of SC. All appeals from decisions of the Ombudsman
in administrative disciplinary cases may be taken to the Court of
Appeals under Rule 43 of the 1997 Rules of Civil Procedure.
(Francisco, Jr. vs. Ombudsman, G.R. No. 154117, October 2, 2009 -
TDC) ; Cortes vs. Office of the Ombudsman (Visayas) , G.R. No.
187896, June 10, 2013)
v However, the decision, resolution or order of the
Ombudsman in an administrative case is final and
unappealable: (1) where the respondent is absolved of
!+*"
"
the charge; and (2) in case of conviction, where the

penalty imposed is public censure or reprimand,
suspension of not more than one month, or a fine
equivalent to one month salary. The remedy is a petition
for certiorari to the Court of Appeals under Rule 65.
(Dagan vs. Office of the Ombudsman, G.R. No. 184083,
November 19, 2013)
Ombudsman resolutions or orders in criminal cases
petition for certiorari to SC under Rule 65 (Sec. 14, 2nd
par., RA 6770) ; . De Chavez vs. Ombudsman, G.R. No.
168830, February 6, 2007; Lanting vs. Ombudsman, G.R.
No. 141426, May 6, 2005; Garcia Rueda vs. Pascasio, G.R.
No. 118141 September 5, 1997).
4. Decisions of the Board of Commissioners of the Bureau of
Immigration (Agus Dwikarna vs. Domingo, 433 SCRA 748)
5. Decisions and final orders of commercial courts under RA 8799
(A.M. No. 04-9-07-SC, Oct. 15, 2004).
***The rule providing that a petition for review under Rule 43 of the Rules of Court
is the proper mode of appeal in intra-corporate controversies, as embodied in A.
M. No. 04-9-07-SC, has been in effect since October 15, 2004. Hence, the filing by
POTC and PHC (Nieto Group) of the petition for certiorari on March 21, 2007 (C.A.
-G.R. SP No. 98399) was inexcusably improper and ineffectual. By virtue of its being
an extraordinary remedy, certiorari could neither replace nor substitute an
adequate remedy in the ordinary course of law, like appeal in due course.
(Philippine Overseas Telecommunications Corporation (POTC) vs. Africa, G.R. No.
184622, July 3, 2013 ) - LPB
N.B. Under Rule 6, Sec. 2 of the Financial Rehabilitation Rules of Procedure (2013)
, an order approving or disapproving a rehabilitation plan can only be reviewed
through a petition for certiorari under Rule 65 within 15 days from notice of the
decision or order. No motion for reconsideration required.
5. CIAC decisions (Metro Construction, Inc. vs. Chatham Properties, Inc., 365 SCRA
697 [2001]; Megaworld Globus Asia, Inc. vs. DSM Construction and Development
Corp., 424 SCRA 179 [2004]).
Excluded from Rule 43:
1. Judgments and final orders issued under the Labor Code (Sec. 2).
NLRC decisions (St. Martin Funeral Home vs. NLRC, 295 SCRA 494)
petition for certiorari to CA under Rule 65.
Decisions of Secretary of Labor (National Federation of Labor vs.
Laguesma, 304 SCRA 407) and Director of BLR (Abbot Laboratories
Phils. vs. Abbot Laboratories Employees Union, 323 SCRA 392 )
petition for certiorari to CA under Rule 65.
2. CTA decisions petition for review under Rule 45 (RA 9282).
3. Decisions of the DOJ Secretary in petitions for review
- petition for certiorari to CA under Rule 65 (Elma vs.
Jacobi, G.R. No. 155996,June 27, 2012; Angeles vs. Gaite,
G.R. No. 176596, March 23, 2011)
N.B. Under DOJ Memorandum Circular No. 58 dated June 30, 1993, the resolution
of the DOJ Secretary is appealable administratively to the Office of the President
if the offense charged is punishable by reclusion perpetua to death. From the OP,
the aggrieved party may file an appeal with the Court of Appeals under Rule 43.
An appeal or petition not clearly falling within the jurisdiction of the Office of the
President, as set forth above, shall be dismissed outright.
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"
What Rules 42 and 43 have in common

1. How appeal taken and time for filing -
a. Petition for review (3 legible copies with original copy
indicated as such) within 15 days from notice of
decision, final order, resolution, etc. or denial of MNT or
MR (or from date of last publication, if publication
acquired for its effectivity) Sec. 1, Rule 42; Sec. 4, Rule 43
b. Extendible 15 days, and no further extension except
for the most compelling reason and not to exceed 15
days (Id.)
c. Only one (1) MR allowed (Sec. 4, Rule 43). Deemed to
apply also to Rule 42.
2. Service of copy of petition on lower court and adverse party - -
serves as notice of appeal. (Sec. 1, Rule 42; Sec. 5, Rule 43)
3. Payment to CA clerk of court of docketing and other lawful fees
and deposit for costs. (Id.)
4. Perfection of appeal as to petitioner, upon timely filing of petition
and payment of docket and other lawful fees. (Id.)
Court or agency loses jurisdiction over case upon perfection of
appeals filed in due time and expiration of time to appeal of other
parties (Sec. 8, Rule 42). No similar provision in Rule 43, but apparently
appeal also perfected in same manner.
Mere filing of a motion for extension of time to file petition for review
under Rule 42 is not sufficient. Unless the appeal is perfected by timely
filing of the petition and payment of docket and other lawful fees,
the Court of Appeals does not acquire jurisdiction over the case
(Fernandez vs. CA, 458 SCRA 454
5. Effect of failure to comply with requirements shall be sufficient
ground for dismissal (Sec. 3, Rule 42; Sec. 7, Rule 43).
a. payment of docket and other lawful fees, deposit for
costs
b. proof of service of petition
c. contents of and documents which should
accompany petition (Sec. 2, Rule 42; Sec. 6, Rule 43) :
-state full names of parties without
impleading court or agency as petitioner or
respondent
-specific material dates showing filing within
period
-concise statements of facts and issues
involved and grounds relied upon
-accompanied by clearly legible duplicate
original or certified true copy of judgments
or final orders of both lower courts and
requisite number of plain copies thereof
and of the pleadings and other material
portions of the record as would support the
allegations in petition (Sec. 2, Rule 42) or of
decision, award, judgment, final order or
resolution together with certified true copies
of such material portions of the record
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"
referred to therein and other supporting

papers (Sec. 6, Rule 43).
-verification and certification against forum
shopping
6. Appeal not a matter of right, acceptance discretionary on CA.
Sec. 4, Rule 42; Sec. 8, Rule 43. Action on the petition
CA MAY REQUIRE respondent to file
COMMENT on the petition, within 10 days
from notice, or DISMISS petition if it finds the
same to be (a) patently without merit, (b)
prosecuted manifestly for delay, or (c)
questions raised too unsubstantial to require
consideration. (PPQ)
Sec. 6, Rule 42; Sec. 10, Rule 43. Due course
Upon filing of comment or other pleadings
which court may allow or require or
expiration of period for filing thereof,
petition may be given due course if CA 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, award, judgment, final
order or resolution. Otherwise, dismissed.
7. Appellate review solely of a pure question of law may be brought
to CA -- exception to rule that it can only be brought to SC (Rule 42 ,
Sec. 2; Rule 43, Sec. 3).
Rule 43 provides for an instance where an appellate review solely on
a question of law may be sought in the CA instead of this Court. In
the case at bar, the question on whether Santos can retire under RA
660 or RA 8291 is undoubtedly a question of law because it centers
on what law to apply in his case considering that he has previously
retired from the government under a particular statute and that he
was re-employed by the government. Thus, he availed of the proper
remedy which is a petition for review under Rule 43. (Jose Santos vs.
Committee on Claims Settlement, and Government Service
Insurance System (GSIS) ,G.R. No. 158071, April 2, 2009)
Where Rules 42 and 43 differ
Rule 42
Sec. 8. Perfection of appeal; effect thereof.
(b) Except in civil cases decided under the Rule on Summary
Proceeding, the appeal SHALL STAY the judgment of final order
unless the CA, the law, or these Rules shall provide otherwise.
Sec. 21, Rule on Summary Procedure:
The decision of the Regional Trial Court in civil cases governed by this
Rule, including forcible entry and unlawful detainer, shall be
IMMEDIATELY EXECUTORY, without prejudice to a further appeal that
may be taken therefrom.
Rule 43
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"
Sec. 12. Effect of appeal The appeal SHALL NOT STAY the award,
judgment, final order or resolution sought to be reviewed unless the
CA shall direct otherwise upon such terms as it may deem just.
N.B. Court of Appeals injunctive orders are not binding on the Ombudsman in
administrative disciplinary cases. (Buencamino vs. CA, April 12, 2007, Office of the
Ombudsman vs. Samaniego (Resolution dated October 5, 2010) and Facura vs.
CA, February 16, 2011).
Exhaustion of administrative remedies
Appeal by petition for review under Rule 43 requires that petitioner has EXHAUSTED
ALL ADMINISTRATIVE REMEDIES and that a final order or decision has been
rendered by the administrative body in the exercise of its quasi-judicial functions.
If there is no exhaustion or administrative remedies, appeal by petition for review
may not be the appropriate remedy but a special civil action under Rule 65
Distinction between ordinary appeal and petition for review. --
Ordinary appeal is a MATTER OF RIGHT
Petition for review is DISCRETIONARY
a. Failure to comply strictly with its requirements shall be sufficient
ground for dismissal Rule 42, Sec. 3; Rule 43, Sec. 7
b. The fact that petitioner has complied with all its requirements is no
assurance that the petition will be given due course, as CA will still
have to be convinced that court or agency concerned has
committed prima facie an error of fact or law that will warrant
reversal or modification of the appealed decision before it may be
given due course Rule 42, Sec. 6; Rule 43, Sec. 10
(3) Petition for review on certiorari
PETITION FOR REVIEW ON CERTIORARI UNDER RULE 45
1. How appeal taken and time for filing -
a. Verified petition within 15 days from notice of decision, final order
of resolution or denial of MNT or MR. (Secs. 1 & 2)
On motion duly filed and served, with payment of full amount of
docket and other lawful fees and deposit for costs before expiration
of reglementary period -- extension of 30 days only for justifiable
reasons.
b. Docket and other lawful fees, deposit for costs (Sec. 3)
c. Proof of service on lower court and adverse party (Id.)
2. Only questions of law may be raised (Sec. 1)
a. Question of law when there is doubt or difference of opinion as to what the law
is on a certain state of facts and which do not call for an examination of the
probative value of the evidence presented by the parties.
Exc. Petitions for review of decisions of RTC, Court of Appeals and Sandiganbayan
in petitions for writs of amparo or habeas data, and of the Court of Appeals in
petitions for writ of kalikasan, may raise questions of fact.
3. Dismissal or denial of petition (Sec. 5)
Dismissal failure of petitioner to comply with requirements of Sec. 4 regarding
- payment of docket and other lawful fees
- deposit for costs
- proof of service of petition
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"
- contents of and documents which should accompany petition shall

be SUFFICIENT GROUND for dismissal thereof
Denial on its own initiative or motu proprio, SC may deny petition on ground that
appeal
- patently without merit
- prosecuted manifestly for delay
- questions raised too unsubstantial to require consideration
4. When petition given due course (Sec. 6)
When court a quo -
1. has decided a question of substance not therefore determined by
SC, or has decided it in a way probably not in accord with law or with
applicable decisions of SC
2. has so far departed from accepted and usual course of judicial
proceedings, or so far sanctioned such departure by the lower court,
as to call for the power of supervision.
SC may review matters not specifically raised.
Once accepted by SC, THROWS ENTIRE CASE OPEN TO REVIEW.
5. Distinguished from certiorari as a special civil action
As mode of appeal
- appellate or superior court has jurisdiction over subject matter and
persons of the parties and can only review errors of judgment, i.e.,
questions or errors of law decided or committed by lower court
- appeal or continuation of the case either from CA, SB or CTA, or RTC
- parties are the same, appellant being the petitioner and appellee,
the respondent
- appellate court renders its own decision affirming, reversing or
modifying judgment or order appealed from
As special civil action
- superior court can only review errors of jurisdiction, i.e., acts of
respondent done without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction
- original or independent action, where inferior court, board or officer
is made respondent, together with person or persons interested in
sustaining the proceedings in the inferior court
- court cannot reverse inferior court’s decision and render a contrary
one, but can only annul or modify act complained of and all
proceedings flowing therefrom
6. Petition for Review under Rule 45 and special civil action under Rule 65 mutually
exclusive
These remedies are mutually exclusive and not alternative or successive.
Where the first is available, the second cannot be resorted to.
Special civil action under Rule 65 may not be allowed as a substitute for failure to
file petition under Rule 45 (Linzag vs. CA, 291 SCRA 304 [1998]).
However, in the interest of justice, SC may consider petition for certiorari under
Rule 65 as a petition for review under Rule 45, provided latter is filed within the
required period (Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305
[2000]).
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"
Petition for review under Rule 45 may be treated as a petition for certiorari under
Rule 65, in the interest of substantial justice. Dismissal of appeal purely on
technical grounds is frowned upon where the policy of the courts is to encourage
hearing of appeals on the merits. The rules of procedure ought not to applied in
a very rigid technical sense, as they are used only to help, not override, substantial
justice.
The strict application of procedural technicalities should not hinder the speedy
disposition of the case on the merits (Ramiscal vs. Sandiganbayan, 446 SCRA 166
[2004]). Callejo
Petition for review can be considered as a petition for certiorari, in the interest of
justice. -- Petitioner came to know of the judgment by default after it was
promulgated by the trial court while appeal was still available. In fact, she filed a
motion for reconsideration which was denied. What she should have done was
to file an ordinary appeal with the Court of Appeals. Instead, she came directly
to this Court via a petition for review on certiorari. However, in the interest of
justice, we consider the instant petition, pro hac vice, a petition for certiorari
under Rule 65, it appearing that the trial court committed grave abuse of
discretion in rendering the judgment by default. (Tan vs. Dumarpa, 438 SCRA 659
[2004])
Petitioner cannot file an alternative petition, i.e., delegating to the Supreme Court
the task of determining under which rule the petition should fall- petition for review
on certiorari under Rule 45 or certiorari under Rule 65. In this case, appeal was not
only available but also a speedy and adequate remedy. Petitioner should have
filed a petition for review. Under Rule 56, Section 5 (f) , a wrong or inappropriate
mode of appeal, as in this case, merits an outright dismissal. (Chua vs. Santos, 440
SCRA 365 [2004]) Callejo
Petition for review on certiorari is the proper remedy to assail the Court of Appeals
decision denying a petition for certiorari. Since petitioner filed instead a petition
for relief from judgment, the CA decision became final. After the CA denied his
petition for relief from judgment, petitioner filed a petition for review with the
Supreme Court seeking a reversal and setting aside of both CA decisions. Futile
because of the finality of the earlier decision and the fact that a petition for
certiorari, not a petition for review, is the correct remedy against a denial of a
petition for relief from judgment (Section 1 (b) , Rule 41) (Azucena vs. Foreign
Manpower Services, Inc. 441 SCRA 346 [2004]). Carpio-Morales
Motion for reconsideration not a sine qua non for filing of a petition for review
under Rule 45. We do not agree with the contention of respondent that a motion
for reconsideration ought to have been filed before the filing of the instant
petition (Commissioner of Internal Revenue vs. Hantex Trading Co., Inc., 454 SCRA
301 [2005]). Callejo)
7. Factual findings of CA binding on SC. 11 Exceptions:
(a) When the findings are grounded entirely on speculation, surmises,
or conjectures;
(b) When the inference made is manifestly mistaken, absurd, or
impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the CA went beyond the issues of the
case, or its findings are contrary to the admissions of both the
appellant and the appellee;
(g) When the CAs findings are contrary to those by the trial court;
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"
(h) When the findings are conclusions without citation of specific

evidence on which they are based;
(i) When the facts set forth in the petition as well as in the petitioners
main and reply briefs are not disputed by the respondent;
(j) When the findings of fact are premised on the supposed absence
of evidence and contradicted by the evidence on record; or
(k) When the CA manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a
different conclusion(Abalos vs. Torio, G.R. No. 175444, December 14,
2011)
Additional exception:
Those filed under writs of amparo, habeas data, or kalikasan.
Judicial Courtesy
Rule of judicial courtesy, meaning holding in abeyance the execution of a
judgment because of a pending petition for certiorari with the higher court, even
without the issuance of a temporary restraining order. In Eternal Garderns
Memorial Corp. vs. CA (164 SCRA 421 [1988]) , the role of judicial courtesy would
apply ONLY if there is a string probability that the issues before the higher court
would be rendered MOOT AND MORIBUND as a result of the continuation of the
proceedings in the lower court.
e. Issues to be raised on appeal
Errors of judgment committed by a court with jurisdiction over the subject matter
and the persons of the parties.
f. Period of appeal
Period of time to appeal must be strictly enforced on considerations of public
policy. The period is mandatory and jurisdictional (Government Service Insurance
System v. Gines, G.R. No. 85273, March 9, 1993, 219 SCRA 724.) and the failure to
do so renders the questioned decision final and executory that deprives the
appellate court of jurisdiction to alter the final judgment much less to entertain
the appeal (De Castro, Jr. v. Court of Appeals, No. L-36021, February 29, 1988, 158
SCRA 288.) or motion for new trial. (Velasco v. Ortiz, G.R. No. 51973, April 16, 1990,
184 SCRA 303) The decision of the Court of Appeals after expiration of the period
to appeal is null and void. (Antonio v. Court of Appeals, No. L-77656, August 31,
1987, 153 SCRA 592.)
g. Perfection of appeal
Rule 41, Sec. 9
A party’s appeal by notice of appeal is deemed perfected as to him upon the
filing of the notice of appeal in due time.
A party’s appeal by record on appeal is deemed perfected as to him with
respect to the subject matter thereof upon the approval of the record on appeal
filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the time to
appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only over the subject
matter thereof upon the approval of the records on appeal filed in due time and
the expiration of the time to appeal of the other parties.
Effect of Perfection of Appeal
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"
The court which rendered the appealed decision loses its jurisdiction over the
case. However, prior to the transmittal of the original record or record on appeal
to the appellate court, it may still do the following:
1. issue orders for the protection and preservation of the rights of the
parties which do not involve any matter litigated by the appeal;
2. approve compromises;
3. permit appeals of indigent parties;
4. order execution pending appeal in accordance with Section 2,
Rule 39; and
5. allow withdrawal of appeal. (Rule 41, Sec. 9) (IAPOA)
Participation of the Solicitor General during appeal
Under Presidential Decree 478, the Solicitor General shall represent the
Government in the Supreme Court and the Court of Appeals in all criminal
proceedings; represent the Government and its officers in the Supreme Court, the
Court of Appeals, and all other courts or tribunals in all civil actions and special
proceedings in which the Government or any officer thereof in his official
capacity is a party.
h. Appeal from judgments or final orders of the MTC
Rule 40
i. Appeal from judgments or final orders of the RTC
Rule 41
j. Appeal from judgments or final orders of the CA
Rule 45
k. Appeal from judgments or final orders of the CTA
Rule 45
l. Review of final judgments or final orders of the COA
Rule 64
m. Review of final judgments or final orders of the COMELEC
Rule 64
n. Review of final judgments or final orders of the CSC
Rule 43
o. Review of final judgments or final orders of the Ombudsman
Rule 43
p. Review of final judgments or final orders of the NLRC
Rule 65
q. Review of final judgments or final orders of quasi-judicial agencies
Rule 43
Dismissal, Reinstatement and Withdrawal of Appeal
Dismissal of Appeal
Court of Appeals
Rule 50
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:
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"
(a) Failure of the record on appeal to show on its face that the
appeal was taken within the period fixed by these Rules;
(b) Failure to file the notice of appeal or the record on appeal within
the period prescribed by these Rules;
(c) Failure of the appellant to pay the docket and other lawful fees
as provided in section 4 of Rule 41;
(d) Unauthorized alterations, omissions or additions in the approved
record on appeal as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the required number of
copies of his brief or memorandum within the time provided by these
Rules;
(f) Absence of specific assignment of errors in the appellant's brief, or
of page references to the record as required in section 13,
paragraphs (a) , (c) , (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the
correction or completion of the record within the time limited by the
court in its order;
(h) Failure of the appellant to appear at the preliminary conference
under Rule 48 or to comply with orders, circulars, or directives of the
court without justifiable cause; and
(i) The fact that the order or judgment appealed from is not
appealable.
SECTION 2. Dismissal of improper appeal to the Court of Appeals. An appeal
under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising
only questions of law shall be dismissed, issues purely of law not being reviewable
by said court. Similarly, an appeal by notice of appeal instead of by petition for
review from the appellate judgment of a Regional Trial Court shall be dismissed.
An appeal erroneously taken to the Court of Appeals shall not be transferred to
the appropriate court but shall be dismissed outright.
Supreme Court
Rule 56
SECTION 5. Grounds for dismissal of appeal. The appeal may be dismissed motu
proprio or on motion of the respondent on the following grounds:
(a) Failure to take the appeal within the reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other lawful fees or to
make a deposit for costs;
(d) Failure to comply with the requirements regarding proof of service
and contents of and the documents which should accompany the
petition;
(e) Failure to comply with any circular, directive or order of the
Supreme Court without justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the Supreme Court.
SECTION 6. Disposition of improper appeal. Except as provided in section 3, Rule
122 regarding appeals in criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court
by notice of appeal shall be dismissed.
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"
An appeal by certiorari taken to the Supreme Court from the Regional Trial court
submitting issues of fact may be referred to the Court of Appeals for decisions or
appropriate action. The determination of the Supreme Court on whether or not
issues of fact are involved shall be final.
Withdrawal of Appeal
Court of Appeals
Rule 50
SECTION 3. Withdrawal of appeal. An appeal may be withdrawn as of right at any
time before the filing of the appellee's brief. Thereafter, the withdrawal may be
allowed in the discretion of the court.
Reinstatement of Appeal
Petitioners' appeal should be reinstated in consonance with the dictates of justice
and fair play. An appeal may be reinstated, even after the remand of the record
to the trial court, where it appears that the dismissal of the appeal was made
under the erroneous impression that the appellants had abandoned their appeal
(Balajadia vs. Pineda, G.R. No. L-45335 January 31, 1978)
*** Dual Function of Appellate Courts
An appellate court serves a dual function. The first is the review for correctness
function, whereby the case is reviewed on appeal to assure that substantial justice
has been done. The second is the institutional function, which refers to the
progressive development of the law for general application in the judicial system.
The review for correctness function is concerned with the justice of the particular
case while the institutional function is concerned with the articulation and
application of constitutional principles, the authoritative interpretation of statutes,
and the formulation of policy within the proper sphere of the judicial function. (Re:
Letter Complaint Of Merlita B. Fabiana Against Presiding Justice Andres B. Reyes,
Jr., Associate Justices Isaias P.
Dicdican And Stephen C. Cruz, A.M. No. CA-13-51-J, July 2, 2013) - LPB
Harmless Error Rule in Appellate Decisions
Rule 51, Section 6. Harmless error. No error in either the admission or the exclusion
of evidence and no error or defect in any ruling or order or in anything done or
omitted by the trial court or by any of the parties is ground for granting a new trial
or for setting aside, modifying, or otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court inconsistent with substantial
justice. The court at every stage of the proceeding must disregard any error or
defect which does not affect the substantial rights of the parties.
If there was an error committed by the RTC in ascribing to the petitioner the
respondents testimony as adverse witness during cross-examination by his own
counsel, it constitutes a harmless error which would not, in any way, change the
result of the case. In the first place, the delineation of a piece of evidence as part
of the evidence of one party or the other is only significant in determining whether
the party on whose shoulders lies the burden of proof was able to meet the
quantum of evidence needed to discharge the burden. In civil cases, that burden
devolves upon the plaintiff who must establish her case by preponderance of
evidence. (Chua Gaw vs. Suy Ben Chua,G.R. No. 160855, April 16, 2008)
3. Relief from judgments, orders and other proceedings
a. Grounds for availing of the remedy
RELIEF FROM JUDGMENT RULE 38
Special remedy of equitable character, allowed only in exceptional cases, as
when there is no other available or adequate remedy.
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"
It is a special remedy in which equity and justice justify the grant to give petitioner
a last chance to defend his rights or protect his interest.
When available
1. Available only after
(a) decision or final order from which relief is sought has become final
and executory, and
(b) loss of the right to appeal.
Not available where (a) a party has another adequate remedy available him
(motion for new trial or appeal) and (b) he is not prevented from filing such motion
or taking the appeal.
2. Relief will not be granted when a party’s loss of legal remedy is due to his own
negligence or mistaken mode of procedure.
Otherwise, petition will be tantamount to reviving the right of appeal which has
already been lost because of inexcusable negligence or due to a mistake in the
mode of procedure taken by counsel.
Requisites:
a. fraud, accident, mistake or excusable negligence
- same meaning as those used as grounds for new trial under Rule 37.
- fraud must be extrinsic or collateral
What is extrinsic fraud?
Fraudulent scheme executed by a prevailing party litigant outside the trial against
the defeated party, his agents or attorneys or witnesses defeated party
prevented from exhibiting fully his side of the case by fraud or deception
practiced on him by his opponent. Examples:
- keeping him away from court
- false promise of compromise
- being kept ignorant of the case
- where his attorney fraudulently connives at his defeat
b. presence of good and substantial cause of action or defense, as the case may
be.
* affidavit of merit must accompany petition showing:
- facts constituting fraud, accident, mistake or excusable negligence
relied upon, and
- facts constituting petitioners good and substantial cause of action
or defense.
serves as jurisdictional basis for the court to entertain the petition. Exception- may
not be necessary
(a) where decision is null and void for want of jurisdiction,
(b) where a default judgment was entered even before petitioners
time to answer had expired, or
(c) where applicant had no notice of the trial, etc.
b. Time to file petition
Time for filing
(a) within 60 days after learns of judgment, order or other proceeding
to be set aside, and
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"
(b) not more than 6 months after judgment or order entered, or such
proceeding taken.
60-day period ordinarily counted from date of service of judgment or final order.
If there is no indication of receipt of service by petitioner or his counsel, it is his duty
to show that he received it within the 60-day period.
6-month period counted from the time judgment or final order is entered,
meaning entry or recording thereof by the clerk of court in the book of entries of
judgment after the same has become final or executory.
If clerk of court failed to enter judgment or final order in the book of entries, 6-
month period is counted from issuance of writ of execution, as the other
proceeding taken against petitioner.
Periods are non-extendible and never interrupted.
Exceptions exceptional circumstances when the period may be relaxed, for the
SC, in the interest of substantial justice, has the power to suspend its rules and to
consider petition filed beyond the period as seasonably filed.
c. Contents of petition
Rule 38, Sec. 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.
4. Annulment of Judgments or final orders and resolutions
a. Grounds for annulment
ANNULMENT OF JUDGMENT RULE 47
Governs annulment of judgments or final orders and resolutions in civil actions of
RTCs for which ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available thru no fault of petitioner.
Cannot be availed of
(1) where party had availed of remedy of new trial, appeal, petition
for relief or other appropriate remedy and lost therefrom; or
(2) where he failed to avail of any such remedy thru his own fault or
negligence.
Grounds and period for filing:
(1) Extrinsic fraud aggrieved party must show that he failed to avail of new trial,
appeal, petition for relief or other appropriate remedy due to extrinsic fraud done
against him.
a. Fraud must be committed by adverse party
Refers to acts outside the trial.
- prevents a party from having a trial, or a real contest,
or from presenting all of his case in court
- operates upon matters not pertaining to the judgment
itself but to the manner in which it was procured so that
there is no fair submission of the controversy.
b. In an ejectment case, the judge demanded and received money
from plaintiff in order that the latter may secure the favorable
outcome of the case. As a result of the acts of both plaintiff and the
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judge, defendant was prevented from receiving a fair and just trial.
Judgment annulled (Joven vs. Calilung, 477 SCRA 470).
c. Petition must be filed within four (4) years from discovery an action
based on fraud prescribes in 4 years.
(2) Lack of jurisdiction- judgment rendered without jurisdiction is null and void.
a. Nullity may be shown not only by what appears on the face of the
decision but also by the documentary and testimonial evidence
found in the record.
b. Petition filed before it is barred by laches or estoppel. While a void
judgment due to lack of jurisdiction is imprescriptible, the declaration
of its nullity may be barred by laches or estoppel.
Laches neglect or omission to assert a right with a reasonable time.
CA has no jurisdiction to entertain a petition to annul a final decision
of the SEC under Rule 47. Applies only to judgments or final orders of
RTC in civil cases, per Sec. 1. MTC judgments and final orders can be
annulled by RTC, per Sec. 10. CA can reverse or modify SEC decision
under Rule 43 (Galang vs. CA, 472 SCRA 259 [2005])
The fact that the judgment or final order has been executed does
not preclude the filing of the action for annulment of judgment.
(3) Lack of due process (National Housing Authority vs. Evangelista, G.R. No.
140945, May 16, 2005; Pinlac vs. Court of Appeals, G.R. No. 91486, January 19,
2001)
b. Period to file action
See above
c. Effects of judgment of annulment
A judgment of annulment shall set aside the questioned judgment or final order
or resolution and render the same null and void, without prejudice to the original
action being refiled in the proper court. However, where the judgment or final
order or resolution is set aside on the ground of extrinsic fraud, the court may on
motion order the trial court to try the case as if a timely a motion for new trial had
been granted therein. (Rule 47, Sec. 7)
5. Collateral attack of judgments
Direct attack - made through an action or proceeding the main object of which
is to annul or set aside or enjoin the enforcement of such judgment if not yet
carried into effect.
Exs. certiorari, annulment of judgment
Collateral attack made when, in another action to obtain a different relief, an
attack on the judgment is made as an incident in said action. Proper only when
the judgment, on its face, is null and void, as where it is patent that the court
which rendered said judgment has no jurisdiction (Co vs. Court of Appeals, 196
SCRA 705).
Q. Execution, Satisfaction and Effect of Judgments (Rule 39)
EXECUTION
What is execution?
Execution is a remedy afforded by law for the enforcement of a judgment, It is a
juridical writ issued to an officer authorizing and requiring him to execute then
judgment of the court (Pamantasan ng Lungsod ng Maynila vs. IAC, 143 SCRA
311 [1986]).
Execution means its enforcement by writ of execution and/or writ of possession or
demolition issued upon motion filed within 5 years from date of entry of the
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judgment or even after such 5-year period where the defeated party caused the
delay in the execution of the judgment or by independent action within 5 years
after said 5-year period (David vs. Ejercito, 71 SCRA 484 [1976]).
1. Difference between finality of judgment for purposes of appeal; for purposes of
execution
If the judgment does not order the doing of something or the payment of money,
there is nothing in the judgment which needs to be enforced or executed. Exs. (a)
judgment dismissing a case without pronouncement as to damages and costs;
(b) judgment in an injunction case which orders the defendant not to do an act;
(c) judgment declaring a contract null and void.
If the appeal period has lapsed, the judgment becomes final and unappealable,
not final and executory.
2. When execution shall issue
a. Execution as a matter of right
Requisites
1. On motion
2. Upon judgment or order that disposes of the action or proceeding
and
3. Upon expiration of the period to appeal therefrom and no appeal
has been duly perfected; or
4. When appeal has been duly perfected and resolved.
Once the judgment has become final and executory, the prevailing party may,
by motion, move for the issuance of a writ execution of the judgment in the court
of origin.
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. (Rule 39, Sec.
1)
What is the remedy against the court’s refusal to issue writ of execution?
Where the judgment or final order has become final and executory,
notwithstanding which the trial court refuses to issue a writ of execution by
denying the motion for execution without justifiable reason, the aggrieved party’s
remedy is to file a petition for MANDAMUS (Valenzona vs. CA, 226 SCRA 306
[1993]).
b. Discretionary execution
How may discretionary execution or execution pending appeal be availed of?
Requisites
1. Motion for execution filed by the prevailing party;
2. Notice of said motion to adverse party;
3. Good reasons stated in a special order after hearing.
This must be done while trial court has jurisdiction over the case and is in
possession of either the original record or record on appeal. The court may, in its
discretion, order execution even before the expiration of the period for appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal
may be filed with the appellate court. (Rule 39, Sec. 2(a) ).
Several separate or partial judgments MAY be executed under the SAME terms
and conditions as execution of judgment or final order pending appeal. (Rule 39,
Sec. 2(b) )
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Examples of good reasons:. (1) where there is danger of the judgment becoming
ineffectual, such as where the losing party is disposing to its assets, or articles
subject of the case would deteriorate; (2) where the judgment debtor is insolvent
or in imminent danger of being insolvent
What are the reasons that do not justify execution pending appeal?
a. appeal is frivolous and dilatory it is not for the trial court to decide
that question (Ong vs. CA, 203 SCRA 38 [1991])
b. posting of a bond to answer for damages is not alone a sufficient
reason, otherwise execution pending appeal could be obtained
through the mere filing of such bond (BF Corp. vs. EDSA Shangri-La
Hotel and Resort, Inc., 294 SCRA 109 [1998]).
c. the fact that the prevailing party is In financial distress (Intramuros
Tennis Club, Inc. vs. Court of Appeals, 341 SCRA 90)
How may discretionary execution be stayed?
a. upon approval by the proper court
b. of a sufficient SUPERSEDEAS BOND
c. filed by the party against whom it is directed
(1) conditioned upon the performance of the judgment
or order allowed to be executed
(2) in case it shall be finally sustained in whole or in part.
d. The bond thus given may be proceeded against on motion with
notice to the surety (Rule 39, Sec. 3).
What is the remedy where the judgment subject to discretionary execution is
reversed or annulled?
The trial court may, on motion, issue such orders of restitution or reparation of
damages as equity and justice may warrant under the circumstances (Rule 39,
Sec. 5).
3. How a judgment is executed
a. Execution by motion or by independent action
When may a judgment be executed by mere motion?
A final and executory judgment may be executed by mere motion within 5 years
from the date of its entry (Rule 39, Sec. 6).
When may a judgment be executed by action? (Revival of judgment)
After the lapse of 5 years from the date of its entry, 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 mere motion within 5 years from the date of
its entry and thereafter by action before it is barred by the statute of limitations
(Rule 39, Sec. 6).
Venue of action for revival of judgment
If the action for revival of judgment affects title to or possession of real property,
or interest therein, then it is a real action that must be filed with the court of the
place where the real property is located. Venue depends on nature of judgment
sought to be revived. (Infante vs. Aran Builders, Inc., G.R. No. 156596, August 24,
2007)
When is the 5-year period deemed extended?
The 5-year period may be deemed extended where the delay is through no fault
of the prevailing party but is due to the delay caused or occasioned by actions
of the judgment obligor for his benefit or advantage (Camacho vs. CA, 287 SCRA
311 [1998]).
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Mandatory execution
What judgments are immediately executory?
a. Judgments in actions for injunction, receivership, accounting,
support. (IRAS)
Such judgments shall not be stayed by an appeal therefrom unless
otherwise stated by the trial court. Also, on appeal, the appellate
court may make an order suspending, modifying, restoring or
granting the injunction, receivership, accounting or award of
support. (Rule 39, Sec. 4)
b. In forcible entry and unlawful detainer, if judgment is rendered
against the defendant, execution shall issue immediately upon
motion unless defendant complies with the requisites for staying
execution (Rule 70, Sec. 19).
c. In forcible entry and unlawful detainer, the judgment of the RTC in
aid of its appellate jurisdiction against the defendant shall be
immediately executory, without prejudice to further appeal to the
CA or SC (Rule 70, Sec. 21).
What is the remedy against improvident issuance of execution?
CERTIORARI lies against an order granting execution pending appeal when it is
not founded on good reasons. Appeal is not a speedy and adequate remedy
that can relieve the losing party of the immediate effects of an improvident
execution pending appeal (BF Corp. vs. EDSA Shangri-La Hotel and Resort, Inc.,
supra).
How shall the writ of execution be returned?
a. If the writ is satisfied -- The writ of execution shall be returnable to
the court issuing it immediately after the judgment has been satisfied
in part or in full.
b. If the writ is not satisfied -- If the judgment cannot be satisfied in full
within 30 days after issuance of the writ, the officer shall report to the
court and state the reasons therefor (Rule 39, Sec. 14).
b. Issuance and contents of a writ of execution (Rule 39, Sec. 8)
The writ of execution is issued in the name of the Philippines and shall state:
1. The name of the court which granted the motion;
2. The case number;
3. The dispositive portion of the judgment or order subject of the
execution; and
4. Shall 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
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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
movants
What are the grounds to quash the writ of execution?
1. When the writ of execution varies the judgment;
2. When there has been a change in the situation of the parties
making the execution inequitable or unjust;
3. When execution is sought to be enforced against a property
exempt from execution;
4. When it appears that the controversy has never been submitted to
the judgment of the court;
5. When the terms of the judgment are not clear enough and there
remains room for interpretation thereof;
6. When it appears that the writ of execution has been improvidently
issued
7. When it appears that the writ of execution is defective in
substance, or is issued against the wrong party, or that the judgment
debt has been paid or otherwise satisfied or the writ is issued without
authority. (Reburiano v. CA, 301 SCRA 342).
c. Execution of judgments for money (Rule 39, Sec. 9)
Three ways to enforce a judgment for money:
1. Immediate payment on demand
2. Satisfaction by levy
Note: The judgment obligor shall have discretion to choose which
property to levy; if not exercised, the officer shall levy first on personal
property, then on real property. The sheriff shall only sell property
sufficient to satisfy the judgment and other lawful fees.
3. Garnishment of debts and credits.
In executing a judgment for money, what steps shall the sheriff follow?
1. Immediate payment on demand. The officer shall demand from
the obligor the immediate payment of the full amount stated in the
judgment including the lawful fees in cash, certified check payable
to the judgment obligee or any other form of payment acceptable
to him;
2. Satisfaction by levy. If the judgment obligor cannot pay all or part
of the obligation in cash, certified check or other mode of payment,
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the officer shall levy upon the properties of the judgment obligor. The
judgment obligor shall have the option to choose which property or
part thereof may be levied upon. 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 personal judgment but
the sheriff shall sell only so much of the property that is sufficient to
satisfy the judgment and lawful fees;
3. Garnishment of debts and credits. The officer may levy on the
debts due the judgment debtor including bank deposits, financial
interests, royalties, commissions and other personal property not
capable of manual delivery in the possession or con troll of third
parties. This is called garnishment.
What is levy?
Levy is the act whereby a sheriff sets apart or appropriates for the purpose of
satisfying the command of the writ, a part or whole of the judgment debtors
property.
Levy and Garnishment
Levy is the seizure of property, personal and/or real, belonging to the judgment
debtor for subsequent execution sale to satisfy judgment. Garnishment is the
process of notifying a third person called the garnishee to retain and attach the
property he has in his possession or under his control belonging to the judgment
debtor, to make disclosure to the court concerning the same, and to dispose of
the same as the court shall direct to satisfy the judgment. (Rule 39, Sec. 9.)
Rulings on Levy
1. A valid levy is essential to the validity of an execution sale, and levy
is invalid if the notice of levy of real property is not filed with the office
of the register of deeds, the purpose of which is to notify third parties
who may be affected in their dealings with respect to such property.
(Valenzuela v. De Aguilar, No. L-18083-84, May 31, 1963, 8 SCRA 212)
Where a parcel of land levied upon execution is occupied by a party
other than a judgment debtor, the procedure is for the court to order
a hearing to determine the nature of said adverse possession.
(Guevara v. Ramos, No. L-24358, March 31, 1971, 38 SCRA 194.)
2. To effect a levy upon real property, the sheriff is required to do two
specific things:
(a) file with the register of deeds, a copy of the order
and description of the attached property and notice of
attachment; and
(b) leave with the occupant of the property a copy of
the same order, description and notice. (Delta Motors
Corporation v. Court of Appeals, No. L-78012, November
29, 1988, 168 SCRA 206.)
3. Notice to the owner who is not the occupant does not constitute
compliance with the statute. (Philippine Surety and Insurance Co.,
Inc. v. Zabal, No. L-21556, October 31, 1967, 21 SCRA 682.
Rulings on Garnishment
1 The garnishment of property to satisfy a writ of execution operates
as an attachment and fastens upon the property a lien by which the
property is brought under the jurisdiction of the court issuing the writ.
It is brought into custodia legis, under the sole control of such court.
(De Leon v. Salvador, No. L-30871, December 28, 1970, 35 SCRA 567.)
It is also known as attachment execution.
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2 Money judgments are enforceable only against property

unquestionably belonging to the judgment debtor. One man’s
goods shall not be sold for another man’s debts, as the saying goes.
(Ong v. Tating, No. L-61042, April 15, 1987, 149 SCRA 265.)
3 The prohibition against examination or an inquiry into a bank
deposit under Rep. Act No. 1405 does not preclude its being
garnished to insure satisfaction of judgment. (China Banking
Corporation v. Ortega, No. L-34964, January 31, 1973, 49 SCRA 355.)
4. Government-owned-and-controlled corporations have a
personality of their own, separate and distinct from the government;
their funds, therefore, although considered to be public in character,
are not exempt from garnishment. (Philippine National Bank v.
Pabalan, No. L-33112, June 15, 1978, 83 SCRA 595.)
5. All government funds deposited in an official depositary of the
Philippine Government by any of its agencies or instrumentalities,
whether by general or special deposit, remain government funds.
Hence, they may not be subject to garnishment or levy, in the
absence of corresponding appropriation as required by law (City of
Naga vs. Asuncion, G.R. No. 174042, July 9, 2008, citing City of
Caloocan v. Allarde, G.R. No. 107271, September 10, 2003, 410 SCRA
432, 439).
d. Execution of judgments for specific acts (Rule 39, Sec. 10)
What are the steps in executing a judgment for specific acts?
1. Conveyance, delivery of deeds, or other specific acts vesting title.
If a party fails to comply with the time specified, the court may direct
the act to be done at the cost of the disobedient party.
2. Sale of personal or real property. The officer shall sell such property,
describing it, and apply the proceeds in conformity with the
judgment.
3. Delivery or restitution of real properties. The officer shall demand
the losing party to peaceably vacate the property within three
working days, and restore possession to the judgment oblige;
otherwise the officer shall oust such disobedient party.
4. Removal of improvements on property subject of execution. The
officer shall not destroy, demolish or remove improvements except
upon special order of the court.
5. Delivery of personal property. The officer shall take possession of
the same and forthwith deliver it to the party entitled to satisfy any
judgment for money as therein provided
e. Execution of special judgments (Rule 39, Sec. 11)
Special judgment is one which can only be complied with by the judgment
obligor because of his personal qualifications or circumstances.
Requires the performance of any act other than payment of money, or the sale
or delivery of real or personal property.
Failure to comply with special judgment under Section 11 is punishable by
contempt by imprisonment. (Rule 39, Sec. 11)
f. Effect of levy on third persons (Rule 39, Sec. 12)
It creates a lien in favor of the judgment obligee over the right, title and interest
of the judgment obligor in such property at the time of the levy, subject to liens
and encumbrances then existing (Rule 39, Sec. 12).
4. Properties exempt from execution (Rule 39, Sec. 13)
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Properties exempt from execution.

Except as otherwise expressly provided by law, the following properties, and no
other, shall be exempt from execution;
(1) The judgment obligor's family home as provided by law, or the
homestead in which he resides, and land necessarily used in
connection therewith;
(2) Ordinary tools and implements personally used by him in his trade,
employment, or livelihood;
(3) 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;
(4) His necessary clothing and articles for ordinary personal use,
excluding jewelry;
(5) 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;
(6) Provisions for individual or family use sufficient for four months;
(7) 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;
(8) 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;
(9) So much of the salaries, wages, or earnings of the judgment
obligor of his personal services within the four months preceding the
levy as are necessary for the support of his family;
(10) Lettered gravestones;
(11) Monies benefits, privileges, or annuities accruing or in any
manner growing out of any life insurance;
(12) The right to receive legal support, or money or property obtained
as such support, or any pension or gratuity from the Government;
(13) Properties specially exempt by law.
But no article or species of property mentioned in his section shall be exempt from
execution issued upon a judgment recovered for its price or upon a judgment of
foreclosure of a mortgage thereon.
5. Proceedings where property is claimed by third persons (Rule 39, Sec. 16)
What are the requisites for a claim by a third person?
1. The property is levied.
2. The claimant is a person other than the judgment obligor or his
agent;
Note: A stranger or third person is any person other than the judgment
debtor or his agent. A party to the auction has no business filing a
third party claim over property involved in the action and which he
himself claims to belong to him (Tillson vs. CA, 197 SCRA 587 [1991]).
The mere filing of a terceria, or an affidavit stating complainant Gos
alleged title, under Sec. 16, Rule 39, or a motion to quash the writ of
execution does not stay the auction sale scheduled by the sheriff.
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Complainants are not strangers or third persons within the meaning

of Sec. 16, Rule 39. Hence, they have no requisite standing to file a
terceria, much less a separate complaint to annul the execution sale
which they inopportunely instituted before the RTC of Pasay City (Go
vs. Abrogar, 398 SCRA 166 [2003]).
3. Makes an affidavit [terceria]; of his title thereto or right to the
possession thereof stating the grounds of such right or title, and serves
the same upon the officer making the levy and the judgment obligee
(Rule 39, Sec 16).
What is the duty of the officer if the property sought to be levied on is claimed by
another person and proper proof of ownership or possession is served upon the
officer making levy?
The officer shall not be bound to keep the property, unless such judgment
obligee, on demand of the officer, files a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the property
levied on [Indemnity bond]. In case of disagreement as to such value, the same
shall be determined by the court issuing the writ of execution. No claim for
damages for the taking or keeping of the property may be enforced against the
bond unless the action therefor is filed within one hundred twenty (120) days from
the date of the filing of the bond.
When the writ of execution is issued in favor of the Republic of the Philippines, or
any officer duly representing it, the filing of such bond shall not be required, and
in case the sheriff or levying officer is sued for damages as a result of the levy, he
shall be represented by the Solicitor General and if held liable therefor, the actual
damages adjudged by the court shall be paid by the National Treasurer out of
such funds as may be appropriated for the purpose.
The officer shall not be liable for damages for the taking or keeping of the
property, to any third-party claimant if such bond is filed (Rule 39, Sec. 16).
Remedy of third party claimant; remedy of judgment obligee
1. The third party claimant may vindicate his claim to the property in
a separate action,
2. The judgment obligee may claim damages in the same or a
separate action against a third-party claimant who filed a frivolous or
plainly spurious claim.
What is the remedy from the denial of a third-party claim?
The third-party claimant is not obligated to file an action for damages against the
sheriff in case an indemnity bond was filed by the judgment creditor. The third-
party claimant may file a separate and independent action to establish ownership
to the property levied upon by the sheriff. In that action, he may secure an
injunction to restrain the sale of the attached property. (Arabay, Inc. vs. Salvador,
G.R. No. L-31077 March 17, 1978).
Neither an appeal nor a petition for certiorari is the proper remedy from the denial
of a third-party claim. Since the third-party claimant is not one of the parties to
the action, he could not, strictly speaking, appeal from the order denying its
claim, but should file a separate reinvindicatory action against the execution
creditor or a complaint for damages against the bond filed by the judgment
creditor in favor of the sheriff. The rights of a third-party claimant should be
decided in a separate action to be instituted by the third person. (Solidum vs. CA,
G.R. No. 161647, June 22, 2006)
Money judgments are enforceable only against the property incontrovertibly
belonging to the judgment debtor, and if the property belonging to any third
person is mistakenly levied upon to answer for another man’s indebtedness, such
person has all the right to challenge the levy through any of the remedies
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provided for under the Rules of Court. Section 16, Rule 39 specifically provides that
a third person may avail himself of the remedies of either terceria, to determine
whether the sheriff has rightly or wrongly taken hold of the property not belonging
to the judgment debtor or obligor, or an independent "separate action" to
vindicate his claim of ownership and/or possession over the foreclosed property.
Before the court can exercise its supervisory power to direct the release of the
property mistakenly levied and the restoration thereof to its rightful owner, the
claimant must first unmistakably establish his ownership or right of possession
thereon. [A] third person whose property was seized by a sheriff to answer for the
obligation of the judgment debtor may invoke the supervisory power of the court
which authorized such execution. Upon due application by the third person and
after summary hearing, the court may command that the property be released
from the mistaken levy and restored to the rightful owner or possessor. What said
court can do in these instances, however, is limited to a determination of whether
the sheriff has acted rightly or wrongly in the performance of his duties in the
execution of judgment, more specifically, if he has indeed taken hold of property
not belonging to the judgment debtor. The court does not and cannot pass upon
the question of title to the property, with any character of finality. (Villasi vs.
Garcia, G.R. No. 190106, January 15, 2014)
a. in relation to third party claim in attachment and replevin
In case of a third party claim in attachment (Rule 57, Sec. 14) and replevin (Rule
60, Sec. 7) , the third party claimant MAY STILL INTERVENE because there is still no
judgment. That is why said provisions state that the third party claimant may
vindicate his claim to the property in the same or separate action.
The timing of the filing of the third party claim is important because the timing
determines the remedies that a third party is allowed to file. A third party claimant
under Section 16 of Rule 39 may vindicate his claim to the property in a separate
action, because intervention is no longer allowed as judgment has already been
rendered. A third party claimant under Section 14 of Rule 57, on the other hand,
may vindicate his claim to the property by intervention because he has a legal
interest in the matter in litigation. (Fort Bonifacio Development Corporation vs.
Yllas Lending Corporation., G.R. No. 158997, October 6, 2008)
6. Rules on Redemption
What is the right of redemption?
The right of a judgment debtor or redemptioner to buy back from the purchaser
of the property sold at public auction by virtue of a writ of execution at anytime
within the reglementary period.
Who may redeem?
a. Judgment obligor or his successor in interest
b. Creditor who is a redemptioner (Rule 39, Sec. 27)
What is the time and manner of successive redemptions? (Rule 39,Sec. 28)
a. Judgment debtor (or his successor in interest) , if exercising
redemption ahead of mere redemptioner within 1 year from date of
registration of sheriffs certificate of sale (with Register of Deeds)
b. Redemptioner exercising redemption ahead of judgment debtor
(or his successor in interest) within 1 year from date of registration of
certificate of sale
c. Redemptioner redeeming from another redemptioner within 60
days after the last redemption
Deed and possession after expiration of redemption period
When is the purchaser entitled to possession and conveyance of the property sold
on execution?
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The purchaser is entitled to possession and conveyance of the property if no

redemption is made within one (1) year from the date of the registration of the
certificate of sale (Rule 39, Sec. 33).
Purchaser or last redemptioner is entitled to:
a. execution of final deed of sale by the sheriff to enable purchaser
or last redemptioner to consolidate his title to the property and to
issuance by the register of deeds of new title in his name.
b. physical possession of the property by means of a writ of possession
against the judgment obligor or his successor or interest or against
any person who occupied the land after filing of the case in which
judgment was rendered and writ of execution was issued.
7. Examination of Judgment Obligor When Judgment is unsatisfied
Upon return of the writ of execution, and judgment is still unsatisfied, the creditor
may ask the court to require the debtor to appear and his property or income be
examined.
Limitation
No judgment obligor shall be required to appear before a court or commissioner
outside the province or city in which such obligor resides or is found. (Rule 39, Sec.
36)
8. Examination of Obligor of Judgment Obligor
The court may order to be examined any person or corporation who has property
of the debtor, or is indebted to the debtor in order to bind the credits due to the
debtor. (Rule 39, Sec. 37).
Satisfaction of judgment
Rule 39, Sec. 44. Entry of satisfaction of judgment by clerk of court. Satisfaction of
a judgment shall be entered by the clerk of court in the court docket, and in the
execution book, upon the RETURN of a writ of execution showing the full
satisfaction of the judgment or upon the FILING of an admission to the satisfaction
of the judgment executed and acknowledged in the same manner as a
conveyance of real property by the judgment obligee or by his counsel unless a
revocation of his authority is filed, or upon the endorsement of such admission by
the judgment obligee or his counsel on the face of the record of the judgment.
Rule 39, Sec. 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.
9. Effect of Judgments or Final Orders (Rule 39, Sec. 47)
Against a Specific Thing
It is conclusive as to the title of the thing
In a Probate of a Will or Administration of the Estate of a Deceased Person
It is conclusive upon the will or administration but the probate of the will or the
granting of letters of administration shall only be prima facie evidence of the
death of the testator
In Respect to the Personal, Political, or Legal Condition or Status of a Particular
Person
It will be conclusive as to the condition, status, or relationship of such person
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BAR BY PRIOR JUDGMENT 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;
The judgment or decree of a court of competent jurisdiction concludes the
litigation between the parties and their successors or privies and bars a new
action or suit involving the same cause of action
CONCLUSIVENESS OF JUDGMENT 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.
Any right, fact or matter in issue which has been directly adjudicated upon or is
necessarily involved in the determination of the action by a competent court is
conclusively settled by the judgment or final order and CANNOT be litigated
again by the parties and their privies.
10. Enforcement and Effect of Foreign Judgments or Final Orders

(Rule 39, Sec. 48)
Enforcement
By filing an action based on said judgment; the foreign judgment is presumed to
be valid and binding.
Effect:
1. Against a specific thing - conclusive upon title to the thing.
2. Against a person - presumptive evidence of a right as between the
parties and their successors in interest by a subsequent title.
In BOTH instances, the judgment may be repelled by evidence of want of
jurisdiction, notice, collusion, fraud, or clear mistake of law or fact.
Under the above Rule, a foreign judgment or order against a person is merely
presumptive evidence of a right as between the parties. It may be repelled,
among others, by want of jurisdiction of the issuing authority or by want of notice
to the party against whom it is enforced. The party attacking a foreign judgment
has the burden of overcoming the presumption of its validity. Respondent, in
assailing the validity of the judgment sought to be enforced, contends that the
service of summons is void and that the Singapore court did not acquire
jurisdiction over it. . In the Philippines, jurisdiction over a party is acquired by service
of summons by the sheriff, his deputy or other proper court officer either personally
by handing a copy thereof to the defendant or by substituted service. in this case,
the Writ of Summons issued by the Singapore High Court was served upon
respondent at its office located at Mercure Hotel (formerly Village Hotel) , MIA
Road, Pasay City. The Sheriff's Return shows that it was received on May 2, 1998
by Joyce T. Austria, Secretary of the General Manager of respondent company.
But respondent completely ignored the summons, hence, it was declared in
default. Considering that the Writ of Summons was served upon respondent in
accordance with our Rules, jurisdiction was acquired by the Singapore High Court
over its person. Clearly, the judgment of default rendered by that court against
respondent is valid. (St. Aviation Services Co., Pte., Ltd., vs. Grand International
Airways, Inc., G.R. No. 140288, October 23, 2006)
How is a foreign judgment enforced?
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Foreign arbitral awards may be enforced under RA 9285 or the Alternative Dispute
Resolution Act of2004. The award must first be confirmed by the RTC and when so
confirmed shall be enforced in the same manner as final and executory
judgments of Philippine Courts
R. Provisional Remedies
PROVISIONAL REMEDIES UNDER THE RULES OF COURT:
a. Attachment (Rule 57)
b. Preliminary Injunction (Rule 58)
c. Receivership (Rule 59)
d. Replevin or delivery of private property (Rule 60)
e. Support Pendente Lite (Rule 61)
f. Criminal Cases (Rule 127 in connection with the civil action
deemed instituted with the criminal action)
OTHER PROVISIONAL REMEDIES

a. Temporary Protection Order [TPO] (RA 9262, Anti-Violence Against
Women and their Children; Rule on the Writ of Amparo)
b. Witness Protection Order [WPO] (RA 6981; Rule on the Writ of
Amparo)
c. Inspection Order [IO] (AM 07-9-12, Rule on the Writ of Amparo)
d. Production Order [PO] (AM 07-9-12, Rule on the Writ of Amparo)
e. Administration of Common Property (AM 02-11-12, Rule on
Provisional Orders)
f. Inspection, Examination of Accounts and Freeze Order (RA 9372,
Human Security Act)
g. Freeze Order under RA 9160 as amended by RA 9194 (Anti-Money
Laundering Act)
h. Seizure and Sequestration of Accounts and Assets (RA 9372,
Human Security Act)
i. Restriction of Travel (RA 9372, Human Security Act)
j. Stay Order (AM 00-8-10, Rules of Procedure on Corporate
Rehabilitation)
k. Hold Departure Order (Criminal cases under Circular 39-97 and
Family cases under AM 02-11-12)
l. Temporary visitation rights (AM 02-11-12, Rule on Provisional Orders
)
m. Guardian Ad Litem of Child (AM 02-1-19, Rule on Involuntary
Commitment of Children)
n. Temporary Custody of Child (AM 02-1-19 and AM 02-11-12)
o. Spousal and Child Support (AM 02-11-12, Rule on Provisional
Orders)
COMMON REQUIREMENTS
a. Affidavits are required to support the issuance of these remedies,
except injunction and receivership.
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b. Bond is also required to answer for damages by reason of the

improvident issuance of the writ. Exceptions: temporary restraining
order, support pendente lite, inspection of accounts and freeze
order (Human Security Act) , inspection and production orders (rule
on the writ of amparo) , seizure and sequestration of accounts and
assets (Human Security Act) , restriction of travel (Human Security
Act) and hold departure order (Circular 39-97 and AM 02-11-12).
Recovery of damages from the bond is governed by Rule 57, Section
20.
1. Nature of provisional remedies
Provisional remedies are temporary, auxiliary and ancillary remedies available to
a litigant for the protection of his rights while the main action is pending. They are
writs and processes which are not main actions and they presuppose the
existence of a main action.
They are provisional because they constitute temporary measures availed of
during the pendency of the action. They are ancillary because they are mere
incidents in and are dependent upon the result of the main action. (Regalado
2008 ed.)
When to apply and in what principal actions available:
1. Preliminary Attachment(Rule 57) at the COMMENCEMENT of the
action or at any time before entry of judgment
a. Recovery of a liquidated sum of money
b. Recovery of possession of property unjustly or
fraudulently taken, detained or converted
2. Preliminary Injunction(Rule 58) - at ANY STAGE of the action prior to
the judgment or final order
a. Action for injunction, whether or not coupled with
other prayers
b. Forcible entry and unlawful detainer
3. Receivership (Rule 59) at ANY STAGE of the proceedings and even
up to the stage after the judgment has become final and executory
as a means of enforcing the judgment
a. Receivership action
b. Real action involving title to or possession of realty
c. Foreclosure of mortgage
d. Dissolution of corporation
4. Replevin (Rule 60) - at the COMMENCEMENT of the action OR at
ANY TIME before answer
a. Recovery of possession of personal property
b. Recovery of personal property subject of chattel
mortgage as a preliminary step to extrajudicial
foreclosure
5. Support Pendente Lite (Rule 61) at the COMMENCEMENT of the
proper action or proceeding, or at ANY TIME prior to the judgment or
final order
a. Support, whether as the main case or as one of
several causes of action.
b. Criminal actions where the civil liability includes
support of the offspring as a consequence of the crime
(rape, seduction).
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2. Jurisdiction over provisional remedies

The court which grants or issues a provisional remedy is the court which has
jurisdiction over the main action. Even a municipal trial court may grant a
provisional remedy in action pending with it and within its jurisdiction. Exs. writ of
preliminary mandatory action, ancillary to the main action of ejectment (Rule 70,
Sec. 15). But where the main action is for support, provisional remedy of support
pendente lite may not be granted by a municipal trial court because the main
action is within the jurisdiction of the family court.
3. Preliminary Attachment
Preliminary attachment defined -
a. a provisional remedy
b. issued upon order of the court where the action is pending,
c. to be levied upon the property of the defendant therein,
d. the same to be held thereafter by the sheriff
e. as SECURITY for the satisfaction of a judgment in said action
f. in favor of the attaching creditor against the defendant. (Virata vs.
Aquino, September 10, 1973)
Ancillary to principal proceeding -
The attachment must fail if the suit itself cannot be maintained as the purpose of
the writ can no longer be satisfied.
When the main action is appealed the attachment is also considered appealed,
It cannot be the subject of an independent action (Olib vs. Pastoral, 188 SCRA
692 [1990]).
Writ of attachment may be issued ex parte
An order of attachment may be issued either ex parte or upon notice and hearing
by the court in which the action is pending, or by the Court of Appeals or Supreme
Court (Rule 57, Sec. 2).
It may be issued ex parte because to require notice to the adverse party would
defeat the purpose of attachment and enable the adverse party to abscond or
dispose of the property before the issuance of the writ (Mindanao Savings and
Loan Association, Inc. vs. CA, 172 SCRA 480).
v Several writs may be issued at the same time to the sheriffs of the courts of
different judicial regions. (Sec. 2)
Attachment and garnishment distinguished
Garnishment is an attachment by which the plaintiff seeks to subject to his claim
property of the defendant in the hands of a third person or money owed by such
third person or garnishee to the defendant. The rules on attachment also apply
to garnishment proceedings.
Attachment/Garnishment
Property is usually in the possession Property is in the possession of a of the party
litigant. third party
Subject is real or personal property Subject is personal property, usually debts or
security
(1) Preliminary Attachment (2) Garnishment (3) Levy on Execution
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Issued at the It is a kind of attachment Writ issued by the court

commencement of the in which the plaintiff after judgment by
action or at anytime before seeks to subject either which the property of
entry of the judgment as the property of the the judgment obligor is
security for the satisfaction defendant in the hands taken into the custody
of any judgment that may of the third person of the court before the
be recovered in the cases called the garnishee, to sale of the property on
provided for by the rules. his claim or the money in execution for the
Here the court takes custody which said third person satisfaction of a final
of the property of the party owes the defendant. judgment. It is a
against whom the Garnishment simply preliminary step to the
attachment is directed. impounds the property sale on execution of
in the possession of the the property of the
garnishee and maintains judgment debtor
the status quo until the
main action is finally
decided. Further, by
means of garnishment,
the plaintiff reaches
credits belonging to the
defendant and owing to
him from a third person
who is a stranger to the
litigation.
Garnishment of bank deposits does not violate the bank secrecy law (RA1405) -
because it does not involve examination or inquiry into the deposit, but is merely
to inform the court whether defendant has a deposit in the bank which may be
garnished.
When garnishment order lifted. A garnishment order shall be lifted if it is
established that: (a) the party whose accounts have been garnished has posted
a counterbond or has made the requisite cash deposit; (b) the order was
improperly or irregularly issued as where there is no ground for garnishment or the
affidavit and/or bond filed therefor are defective or insufficient; (c) the property
attached is exempt from execution, hence exempt from preliminary attachment;
or (d) the judgment is rendered against the attaching or garnishing creditor.
Discharge of attachment
1. Posting of counterbond (Sec. 12). Even before actual levy, seizure
may be prevented also under a counterbond (Sec. 5).
2. Showing of improper or irregular issuance (Sec. 13).
3. Judgment rendered against attaching party dismissal of principal
action (Sec. 19).
a. Grounds for issuance of writ of attachment

Grounds for issuance (Rule 57, Sec. 1)
1. Action for recovery of specified amount
2. Action involving embezzled property
3. Action to recover property fraudulently taken
4. Action involving fraud in contracting or performing obligation
5. Action against party who has removed or disposed of property to
defraud creditors
6. Action against non-resident defendant
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b. Requisites
Attachment bond (Rule 57, Sec.3)
An attachment bond is a pre-requisite to the issuance of a writ of attachment.
Until the attachment is discharged or lifted in accordance with law, the bond
continues to be valid even when the PREMIUM IS NOT PAID.
c. Issuance and contents of order of attachment; affidavit and bond
(Rule 57, Sec. 2) The 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.
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 applicant's
demand,
EXCEPT if such party makes a DEPOSIT or gives a BOND in an amount equal to that
fixed in the order. Amount may be (a) sufficient to satisfy the applicant's demand
or (b) the value of the property to be attached as stated by the applicant,
exclusive of costs.
Ex parte grant of the writ is allowed because it is possible that during the course
of the hearing, the part against whom the writ is sought may dispose of his
property or abscond before the writ is issued. (Filinvest Credit Corporation vs.
Relova, G.R. No. L-50378, September 30, 1982)
Affidavit and Bond (Rule 57, Secs. 3 and 4)
1. The AFFIDAVIT to be executed by the applicant himself or some
other person who personally knows the facts must show that:
a) There is a sufficient cause of action. The case is one of
those mentioned in Rule 57, Sec. 1
b) There is no sufficient security for the claim sought to
be enforced; and
c) The amount claimed in the action is as much as the
sum for which the order is granted above all legal
counterclaims;
2. The BOND must be executed to the adverse party in an amount
fixed by the judge, not exceeding the applicants claim, conditioned
that the latter will pay 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.
d. Rule on prior or contemporaneous service of summons
Prior or contemporaneous service of summons required
An ORDER of attachment may be granted ex parte. Its grant or denial rests upon
the sound discretion of the court.
However, its ENFORCEMENT shall be preceded or contemporaneously
accompanied by service of summons and copy of the complaint, order of
attachment and bond posted by the applicant (Davao Light and Power Co., Inc.
vs. CA, 204 SCRA 343 [1991]).
EXCEPTIONS TO PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS (Rule 57,
Sec. 5)
1. Summons could not be served personally or by substituted service
despite diligent efforts;
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2. Defendant is a resident of the Philippines temporarily absent

therefrom;
3. Defendant is a non-resident of the Philippines; or
4. The action is in rem or quasi in rem.
e. Manner of attaching real and personal property; when property attached is

claimed by third person
The sheriff enforcing the writ shall without attach only so much of the property of
the adverse party not exempt from execution, as may be sufficient to satisfy the
applicant's demand,
UNLESS the adverse party
(a) makes a DEPOSIT with the court from which the writ is issued, or
(b) gives a COUNTERBOND 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 applicant's affidavit and bond, and the order and writ of
attachment, on the defendant within the Philippines.
The rule on prior or contemporaneous service of summons shall apply, subject to
the exceptions enumerated earlier. (Rule 57, Section 5)
Rule 57, Sec. 7. Attachment of real and personal property; recording thereof.
The sheriff executing the writ shall attach real and personal property in the
following manner:
1. Real property, growing crops, or any other interest therein
a) 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
b) 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.
2. Personal property capable of manual delivery
a) By taking and safely keeping it in his custody, after issuing the
corresponding receipt therefor
3. Stocks or shares, or an interest in stocks and shares, of any corporation or
company
a) 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 pursuant to the
writ
4. Debts and credits, including bank deposits, financial interest, royalties,
commissions, and other personal property not capable of manual delivery
a) 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 the attachment is
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"
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
5. 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
a) 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
b) 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.
6. If the property sought to be attached is in custodia legis

a) A copy of the writ of attachment shall be filed with the proper
court or quasi-judicial agency, and notice of the attachment served
upon the custodian of such property.
Attachment of Debts, Credits, Similar Personal Property (Garnishment)
Those who have in their possession or control any credits or other similar personal
property which belongs to the party against whom the attachment is issued, or
owing any debts to him, shall be liable to the applicant for the amount of such
credits, debts or other similar property.
Such liability shall accrue from the time of service upon him of the copy of the writ
of attachment and until the attachment is discharged, or any judgment
recovered by him is satisfied, 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. (Rule 57, Section 8)
It is not necessary to serve summons upon the garnishee to acquire jurisdiction
upon him. All that is required is service upon him of the writ of garnishment.
When property attached is claimed by a third person
Rules regarding terceria (third party claims) Rule 57, Sec. 14
The third person whose property was levied on must make an
AFFIDAVIT of his title thereto, or right to the possession thereof,
stating the grounds of such right or title, and
serves such affidavit upon the sheriff while the latter has possession of
the attached property and a copy thereof upon the attaching party
The sheriff shall not be bound to keep the property as a general rule.
The sheriff is bound to keep the property when the attaching party,
on demand of the sheriff, files a BOND approved by the court to
INDEMNIFY the third-party claimant in a sum not less than the value
of the property levied upon. (indemnity bond)
In case of disagreement as to such value, the same shall be decided
by the court issuing the writ of attachment.
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 is filed.
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The proceedings set forth above shall not prevent such claimant or
any third person from vindicating his claim to the property in the
same or separate action.
or prevent the attaching party 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 attachment 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 attachment, 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.
!! The third party CANNOT APPEAL NOR AVAIL OF
CERTIORARI AS A REMEDY in the event that his claim is denied
since HE IS A NON-PARTY to the original action (Sierra vs.
Rodriguez and Northern Motors vs. Coquia),
!! Aside from Rule 57, Sec. 14, the other provisions of the
Rules of Court dealing with terceria or third party claims are
Rule 39, Sec. 16 (execution) and Rule 60, Sec. 7 (replevin).
Attachment bond under Sec. 3 is different from the bond under Sec. 14
(proceedings where property claimed by third person). Sec. 3 refers to the
attachment bond to assure the return of defendants property or the payment of
damages to the defendant if the plaintiffs action to recover possession of the
same property fails, in order to protect the person’s right of possession of said
property, or to prevent the defendant from destroying the same during the
pendency of the suit.
Under Sec. 14, the purpose of the bond is to indemnify the sheriff against any
claim by the intervenor to the property seized or for damages arising from such
seizure, which the sheriff was making and for which the sheriff was directly
responsible to the third party (Fort Bonifacio Development Corporation vs. Yllas
Lending Corporation, G.R. No. 158997, October 6, 2008).
f. Discharge of attachment and the counter-bond
After a writ of attachment has been enforced, the party whose
property has been attached, or the person appearing on his behalf,
may move for the discharge of the attachment wholly or in part on
the security given.
Grounds for discharge:
1. Debtor has posted a COUNTER-BOND or makes a
CASH DEPOSIT in an amount equal to that fixed by the
court in the order of attachment. But if the attachment
is sought to be discharged with respect to a particular
property, the counter-bond shall be equal to the value
of that property as determined by the court. In either
case, the cash deposit or the counter-bond shall secure
the payment of any judgment that the attaching party
may recover in the action (R57S12);
2. Attachment was improperly or irregularly issued or
enforced, as where there is no ground for attachment
under Section 1 (R57S13);
3 . The bond filed is defective or insufficient (R57S13);
4. Attachment is excessive but the discharge shall be
limited to the excess (R57S13);
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5. Property attached is exempt from execution (R57S2

and R57S5);
6. Judgment is rendered against the attaching creditor
(R57S19).
!! A discharge of the attachment must be made only after hearing. Ex
parte discharge is a disservice to the orderly administration of
justice(Peroxide Philippines Corporation vs. Court of Appeals, 199 SCRA
882].
g. Satisfaction of judgment out of property attached
If judgment be recovered by the attaching obligee 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:
1. 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;
2. If any balance remain 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;
3. 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 the section and furnish the parties with copies thereof. (Rule 57, Sec. 15)
If after realizing upon all the property attached, 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. (Rule 57, Sec.16)
When the judgment has become executory, the surety or sureties on the counter-
bond shall become charged on such counter-bond and bound to pay the
judgment oblige upon demand the amount due under the judgment, which may
be recovered from such surety or sureties after notice and summary hearing in
the same action. (Rule 57, Sec. 17)
Where the party, against whom attachment had been issued, has deposited the
money instead of giving counter-bond, it shall be applied under direction of the
court to the satisfaction of any judgment rendered in favour of the attaching
party. 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. (Rule 57, Sec. 18)
If judgment be rendered against the attaching party, all the proceeds of the sales
and money collected or received by the sheriff, under the order of attachment,
and all property attached remaining in any such sheriffs hands, shall be delivered
to the party against whom attachment was issued, and the order of attachment
discharged. (Rule 57, Sec. 19)
Preference of levy on attachment duly registered over a prior unregistered sale
The settled rule is that levy on attachment, duly registered, takes preference over
a prior unregistered sale. The preference created by the levy on attachment is
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not diminished even by the subsequent registration of the prior sale. This is so
because an attachment is a proceeding in rem. It is against the particular
property, enforceable against the whole world. The attaching creditor acquires a
specific lien on the attached property which nothing can subsequently destroy
except the very dissolution of the attachment or levy itself. The lien continues until
the debt is paid, or sale is had under execution issued on the judgment, or until
the judgment is satisfied, or the attachment discharged or vacated in some
manner provided by law. Thus, in the registry, the attachment in favor of
respondents appeared in the nature of a real lien when petitioner had his
purchase recorded. The effect of the notation of said lien was to subject and
subordinate the right of petitioner, as purchaser, to the lien (Valdevieso vs.
Damalerio, G.R. No. 133303, February 17, 2005, 451 SCRA 664, 670).
No sale of property covered by writ of preliminary attachment before prior
judgment; Exception
A writ of attachment is a provisional remedy and its issuance does not have the
effect of a final judgment over the property attached. Thus, the property cannot
be sold before final judgment.
Exception: An attached property may be sold after levy on attachment and
before entry of judgment whenever it shall be made to appear to the court In
which the action is pending, upon hearing with notice to both parties, that (a) the
attached property is perishable or that (b) the interests of all the parties to the
action will be subserved by the sale of the attached property (Rule 57, Sec. 11;
China Banking Corporation vs. Asian Corporation and Development Corporation,
G.R. No. 158271, April 8, 2008).
4. Preliminary Injunction(Rule 58)

a. Definitions and Differences: Preliminary Injunction and Temporary Restraining
Order
Temporary Restraining Order may be issued ex parte or without a hearing, and is
effective for a limited period.
Preliminary Injunction - may not be issued ex parte and is effective while the main
case is pending
PRELIMINARY INJUNCTION
There is no power, the exercise of which, is more delicate which requires greater
caution, deliberation, and sound discretion, or (which is) more dangerous in a
doubtful case than the issuing of an injunction. It is the strong arm of equity that
never ought to be extended unless in cases of great injury, where courts of law
cannot afford an adequate or commensurate remedy in damages. (University of
the Philippines v. Catungal, Jr. G.R. No. 121863 May 5, 1997, 272 SCRA 221, 236)
b. Requisites
Essential Requisites for the Issuance of Preliminary Injunction
1. There must be a right in esse or the existence of a right to be
protected.
2. The act against which the injunction is to be directed is a violation
of such right. (Philippine Sinter Corporation et. al. vs Cagayan Electric
Power and Light Co. Inc. GR No. 127371, April 25, 2002. 381 SCRA 582)
a. A writ of preliminary injunction, as an ancillary or
preventive remedy, may only be resorted to by a litigant
to protect or preserve his rights or interests and for no
other purpose during the pendency of the action.
(China Banking Corporation v. Court of Appeals G. R.
No.121158, December 5,1996,265 SCRA 327.) It should
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only be granted if the party asking for it is clearly entitled

thereto. (Climaco vs. Macadaeg, 114 Phil.870 [1962];
Subido v. Gopengco, G.R. No. 25618, March 28,1969, 27
SCRA 455; Police Commission v. Bello, G.R. Nos. 29959-
60, January 30, 1971, 37 SCRA 230; Capitol Medical
Center, Inc. v. Court of Appeals, G.R. No. 82499, Oct.
13,1989, 178 SCRA 493.)
b. An injunction will not issue to protect a right not in esse
and which may never arise or to restrain an act which
does not give rise to a cause of action. (Republic of the
Philippines v. Villarama G.R. No. 117733, September 5,
1997, 278 SCRA 736; Buayan v. Quintillan, supra, note
315.) There must exist a clear and actual right to be
protected and that the acts against which the writ is to
be directed are violative of the established right. (G & S
Transport Corporation vs CA 382 SCRA 262 GR No.
120287, May 28, 2002)
c. Kinds of Injunction
1. Preliminary prohibitory injunction order granted at any stage of the
action or proceeding prior to judgment or final order requiring a party
or court, agency or person to refrain from a particular act or acts
(Rule 58, Sec. 1)
2. Preliminary mandatory injunction order granted at any stage of
the action or proceeding prior to the judgment or final order requiring
the performance of a particular act or acts.
3. Final or permanent injunction - one issued in the judgment in the
case permanently restraining the defendant or making the
preliminary injunction permanent.
Under the Rules of Court, probability is enough basis for
injunction to issue as a provisional remedy, which is
different from injunction as a main action where one
needs to establish absolute certainty as basis for a final
and permanent injunction. (Hernandez vs. NAPOCOR,
G.R. No. 145328, March 23, 2006).
d. When writ may be issued
Rule 58, Sec. 3. Grounds for issuance of preliminary injunction.
A preliminary injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the
whole or part of such relief consists in restraining the commission or
continuance of the act or acts complained of, or in requiring the
performance of an act or acts, either for a limited period or
perpetually;
(b) That the commission, continuance or non-performance of the act
or acts complained of during the litigation would probably work
injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is
attempting to do, or is procuring or suffering to be done, some act or
acts probably in violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to render the
judgment ineffectual.
e. Grounds for issuance of preliminary injunction
PRELIMINARY INJUNCTI0N
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Purpose of preliminary injunction to preserve the status quo antelitem motam

(status before the suit) until the trial court hears fully the merits of the case. Its
primary purpose is not to correct a wrong already consummated or to redress an
injury already sustained, or to punish wrongful acts already committed, but to
preserve and protect the rights of the litigant during the pendency of the case
(Bustamante vs. CA, April 17, 2002).
Injunction is a preservative remedy
Injunction is a preservative remedy for the protection of substantive rights or
interests. It is not a cause action in itself but merely a provisional remedy, an
adjunct to a main suit.
Reason for injunction
So that the court may thereby prevent a threatened or continuous irremediable
injury to some of the parties before their claims can be thoroughly investigated
and advisedly adjudicated. The application of the writ rests upon an alleged
existence of an emergency or of a special reason for such an order before the
case can be regularly heard, and the essential conditions for granting such
temporary injunctive relief are that (a) the complaint alleges facts which appear
to be sufficient to constitute a cause of action for injunction and that (b) on the
entire showing on both sides, it appears, in view of all the circumstances, that the
injunction is reasonably necessary to protect the legal rights of the plaintiff
pending the litigation. (Estares vs. CA, 459 SCRA 604 [2005]).
Status quo sought to be preserved the last actual, peaceable and uncontested
situation [LAPUS] which precedes a controversy. The status quo should be existing
ante litem motam, or at the time of the filing of the case. For this reason, a
preliminary injunction should not establish new relations between the parties, but
merely maintain or re-establish the pre-existing relationship between them
(Bustamante vs. CA, supra).
Requisites for injunctive writ: (1) invasion of the right is material and substantial; (2)
the right of complainant is clear and unmistakable; (3) and there is an urgent and
permanent necessity of the writ to prevent serious damage.
Injunction not designed to protect contingent or future rights. Injunction will not
issue to protect a right not in esse and which may never arise, or to restrain an act
which does not give rise to a cause of action.
The complainants right or title must be CLEAR AND UNQUESTIONED, for equity, as
a rule, will not take cognizance of suits to establish title, and will not lend its
preventive aid where the complainants title or right is doubtful or disputed. The
possibility of irreparable damage, without proof of violation of an actual existing
right, is no ground for an injunction, being mere damnum absque injuria (Ulang
vs. CA, 225 SCRA 637 [1993]).
Distinguished from Prohibition
INJUNCTION PROHIBITION
Generally directed against a Generally directed against a court, tribunal or

party personal exercising judicial powers
Does not involve the jurisdiction May be on the ground that court is acting
of the court without or in excess of jurisdiction
May be the main action or

Always a main action
provisional remedy only
MANDATORY INJUNCTION
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Strict requisites for mandatory injunction. Since it commands the performance of

an act, a mandatory injunction does not preserve the status quo and is thus more
cautiously regarded than a mere prohibitive injunction (Gateway Electronics
Corporation vs. Land Bank of the Philippines, July 30, 2003, 407 SCRA 454,).
When injunction improper
Tay Chun Suy vs. CA, 229 SCRA 151 (1994) -
As between the buyer of a vessel at a prior extrajudicial foreclosure and the buyer
at a subsequent auction sale, both buyers failing to register their transactions, who
has a better right of dominion over the vessel?
Rule that no court has the power to interfere by injunction with the judgments of
another court with concurrent or coordinate jurisdiction applies only when NO
PARTY CLAIMANT involved. When a third party or a stranger to the action asserts
a claim over the property levied upon, the claimant may vindicate his claim by
an independent action in the proper civil court which may stop the execution of
the judgment on property not belonging to the judgment debtor.
Cases where injunction was held improper
1. To restrain collection of taxes except where there are special
circumstances that bear the existence of irreparable injury. (Churchill
& Tait v. Rafferty, 32 Phil. 580 [1915]).
2. To restrain the sale of conjugal properties where the claim can be
annotated on the title as a lien such as the husbands obligation to
give support. (Saavedra v. Estrada 56 Phil. 33 [1931])
3. To restrain a mayor proclaimed as duly elected from assuming his
office. (Cereno v. Dictado, No. L-81550, April 15, 1988, 160 SCRA 759.)
4. To restrain consummated or ministerial acts:
a. Not proper to restrain against disposing a case on the
merits. (Government Service Insurance System (GSIS) v.
Florendo, G.R. NO. 48603, September 29, 1989, 178 SCRA
76; Ortigas and Company Limited Partnership v. Court of
Appeals, No. L-79128, June 16, 1988, 162 SCRA 165.)
b. Not proper to stop the execution of judgment where
the judgment was already executed. (Meneses v.
Dinglasan, 81 Phil. 470 [1948])
c. The Regional Trial Court has no power to issue a writ of
injunction against the Register of Deeds if its effect is to
render nugatory a writ of execution issued by the
National Labor Relations Commission. (Ambrosio v.
Salvador, No. L-47651, December 11, 1978, 87 SCRA 217.)
d. A writ of injunction is not proper to stop the execution
of judgment where the judgment was already
executed. (Meneses v. Dinglasan, 81 Phil. 470 [1948])
e. But where the lower court enforced its judgment
before a party against whom the execution was
enforced could elevate his or her appeal in an injunction
suit, which was instituted to prevent said execution, an
independent petition for injunction in the Court of
Appeals is justified. (Manila Surety and Fidelity v.
Teodoro, G.R. No. 20530, June 29, 1967, 20 SCRA 463)
f. A writ of injunction should never issue when an action
for damages would adequately compensate the injuries
caused. The very foundation of the jurisdiction to issue
the writ of injunction rests in the possibility of irreparable
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injury, inadequacy of pecuniary compensation and the

prevention of the multiplicity of suits. Where facts are not
shown to bring the case within these conditions, the
reliefs of injunction should be refused. (Golding vs.
Balabat, 36 Phil. 941)
Writ of preliminary injunction may not be issued ex parte
A writ of preliminary injunction shall not be granted without prior notice and
hearing to the party or person sought to enjoined (Rule 58, Sec. 5). Reason: the
preliminary injunction may cause grave and irreparable injury to the person
enjoined.
However, temporary restraining order may be issued ex parte
1. If the matter is of extreme urgency and the applicant will suffer
grave injustice and irreparable injury, the court may issue a TRO
effective only for 72 hours from issuance, renewable after summary
hearing for a period not exceeding 20 days including the original 72
hours.
2 Only a TRO issued after a summary hearing can last for a period of
twenty days (Mayor Sampiano v. Judge Indar, A.M. No. RTJ-05-1953;
December 21, 2009 )
Issues on jurisdiction
1. Pursuant to the policy of judicial stability, the judgment or order of
a court of competent jurisdiction may not be interfered with by any
court of concurrent jurisdiction (Javier vs. Court of Appeals, February
16, 2004, 423 SCRA 11; See also Chings vs. Court of Appeals, February
24, 2003, 398 SCRA 88). Exc. Third party claim
2. Injunctions issued by the Regional Trial Courts are limited to acts
committed or to be committed within its territorial jurisdiction. The
doctrine is, however, limited to prohibitory and injunctive writs.
Section 21 of BP 129 reads: Original jurisdiction in other cases Regional
Trial Courts shall exercise original jurisdiction (1) in the issuance of writs
of certiorari, prohibition, mandamus, quo warranto, habeas corpus
and injunction which may be enforced in any party of their
respective regions.
3. Judge's authority to issue a writ of preliminary injunction only within
his/her territorial jurisdiction
As the presiding judge of RTC, Marawi City, he should have known
that Makati City was way beyond the boundaries of his territorial
jurisdiction insofar as enforcing a writ of preliminary injunction is
concerned. Section 21(1) of B.P. Blg. 129, as amended, provides that
the RTC shall exercise original jurisdiction in the issuance of writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and
injunction which may be enforced in any part of their respective
regions (Gomos vs. Adiong, A.M. No. RTJ-04-1863, October 22, 2004,
441 SCRA 162).
Allgemeine-Bau-Chemie Phils., Inc. vs. Metropolitan Bank & Trust Company, 482
SCRA 247 (2006)
1. An original action for injunction is outside the jurisdiction of the
Court of Appeals.
2. The appellate court’s jurisdiction to grant a writ of preliminary
injunction is limited to the actions or proceedings before it or in a
petition for certiorari, prohibition or mandamus under Rule 65.
3. An order granting or denying a preliminary injunction is not appeal
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f. Grounds for objection to, or for the dissolution of injunction or restraining order
1. Insufficiency of application
2. Other grounds (e.g. applicants bond is insufficient/defective) ,
upon affidavits of the party or person enjoined, which may be
opposed by the applicant also by affidavits.
3. If it appears after hearing that although the applicant is entitled to
the injunction or restraining order, the issuance or continuance
thereof would cause irreparable damage to the party or person
enjoined, while the applicant can be fully compensated for such
damages as he may suffer, and the former files a bond in an amount
fixed by the court conditioned that he will pay all damages which
the applicant may suffer by the denial or the dissolution of the
injunction or restraining order.
4. If it appears that the extent of the preliminary injunction or
restraining order granted is too great, it may be modified (Rule 57,
Sec. 6).
Not allowed to transfer possession
A court should not, by means of a preliminary injunction, transfer the property in
litigation from the possession of one party to another where the legal title is in
dispute and the party having possession asserts ownership thereto. (Toyota Motors
Philippines Corporation v. Court of Appeals, G.R. No. 102881, Dec. 7, 1992). The
function of injunction is to preserve the status quo ante. (Knecht v. Court of
Appeals, G.R. No. 56122, November 18, 1993)
This is more particularly applicable where the legal title is in dispute and the party
having possession asserts ownership in himself. (Gordillo and Martinez v. Del
Rosario, 39 Phil. 829 [1919])
Exceptions
a. Forcible entry in which the Court may issue preliminary mandatory
injunction (Rule 70, Sec. 15) and by Section 20 thereof involving leases
in which the court may, on appeal, grant similar mandatory
injunctive relief. The exception applies only to ejectment cases
exclusively cognizable by the municipal trial court. (Ramos v. Court
of appeals, G.R. 81354, July 26, 1988, 163 SCRA 583 )
b. Property covered by Torrens Title when there is a clear finding of
ownership and possession of the land or unless the subject property
is covered by a Torrens Title pointing to one of the parties as the
undisputed owner. (GSIS v. Florendo, supra, note 329; Cagayan de
Oro City Landless Residents Association, Inc. v. Court of Appeals, G.R.
No. 106043, March 4, 1996, 254 SCRA 229)
Not allowed to dispose of the main case on the merits
Courts should avoid issuing a writ of preliminary injunction which would in effect
dispose of the main case without trial. Such granting of JPV's application already
amounted to the virtual acceptance of JPV's alleged entitlement to preventing
the petitioner from considering and passing upon the applications of other parties
like Grahar to operate their own Private Emission Testing Center in Iloilo City based
on JPV's still controversial capability to serve all the registered motor vehicles in
Iloilo City pursuant to Department Order No. 2002-31. The granting amounted to
the prejudgment of the merits of the case, something the RTC could not validly
do. (City of Iloilo vs. Honrado, G.R. No. 160399, December 9, 2015) - LPB
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Injunctions not issued where act sought to be prevented had been committed /
consummated acts (fait accompli)
1. The remedy of injunction could no longer be availed of where the
act to be prevented had long been consummated. Where a span
of seven years has intervened from the time the award of the lot has
already been accomplished to the time petitioners complaint for
injunction was filed, injunction would just be an exercise in futility
(Zabat vs. CA, August 23, 2000, 338 SCRA 551).
2. A writ of preliminary injunction will not issue if the act sought to be
enjoined is a fait accompli or an accomplished or consummated act
(Transfield Philippines, Inc., vs. Luzon Hydro Corporation, November
22, 2004, 443 SCRA 307). By issuing a temporary restraining order and
writ of preliminary injunction enjoining the eviction of the
respondents, the Court of Appeals allowed the respondents to stay
in the property despite the mandatory provision of Section 19, Rule
70 of the Rules of Court. The appellate court, in effect, granted the
same injunctive relief which the respondents failed to secure from the
Regional Trial Court due to their procedural lapse (David vs. Navarro,
February 11, 2004, 422 SCRA 499).
SUMMARY LIST OF INSTANCES WHERE PRELIMINARY INJUNCTION IS PROHIBITED:
1. Injunction against courts or tribunals of co-equal rank prohibited.
(Roldan, Jr. v. Arca, G.R. No. 25434, July 25, 1975, 65 SCRA 336)
2. Injunction orders are prohibited in labor cases. (Associated Labor
Union (AKU-TUCP) v. Borromeo, No. L-75736, September 29, 1988, 166
SCRA 99; Kaisahan ng Mga Manggagawa v. Sarmiento, No. L-47853,
November 16, 1984, 133 SCRA 220)
3. Injunction beyond prayer in complaint (The Chief of Staff, AFP v.
Guadiz, Jr., No. L-35007, December 29, 1980, 101 SCRA 827) Enjoining
the prosecution of criminal proceedings. (Romero v. The Chief of
Staff, AFP, G.R. No. 84076, February 20, 1989, 170 SCRA 108; Reyes v.
Camilon, G.R. No. 46198, December 20, 1990, 192 SCRA 445 )
4. Injunctions to prevent the implementation of government
infrastructure projects. (Section 3, RA 8975)
5. Injunctions to prevent the implementation or execution of
contracts for the operation of a public utility. (G&S Transport
Corporation vs CA 382 SCRA 262 GR No. 120287, May 28, 2002)
6. Injunctions to prevent the foreclosure of real estate mortgages by
government financing institutions (OCA Circular no. 93-2004 in
relation to Sec. 21 Rule 141 of the Rules of Court, Sec.3 PD 385 and
Administrative Circular No. 07-99)
7. Injunctions to prevent the Anti Money Laundering Council from
issuing and /or implementing freeze orders, with the exception of writs
issued by the Court of Appeals and the Supreme Court (RA 9160 as
amended by RA 9194)
8. Injunctions to restrain the Presidential Agrarian Reform Council from
performing its tasks (Section 55 RA 6657)
9. Injunctions against public administrative officers in the issuance of
public grants for the exploitation of natural resources (PD 605)
Period to decide case when a higher court issues a writ of preliminary injunction
against a lower court, board or tribunal:
The trial court, the Court of Appeals, the Sandiganbayan or the Court of Tax
Appeals that issued a writ of preliminary injunction against a lower court, board,
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officer or quasi-judicial agency shall decide the main case or the petition within
six months from the issuance of the writ.
Under this provision, higher courts that restrain a lower court from proceeding with
a case by issuing a writ of preliminary injunction must decide the main case or
petition within six months in order not to unduly delay the main case lodged in a
lower court. (Section 5, Rule 58, as amended by A.M. No. 07-7-12-SC which took
effect on December 27, 2007)
g. Duration of TRO
Effectivity of TRO
RTC - 20 days
CA - 60 days
SC - until further orders
h. In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases
involving government infrastructure projects
Statutory Prohibitions against the Issuance of a Writ of Preliminary Injunction or
preliminary mandatory injunction
Under Rep. Act No. 8975
The issuance of temporary restraining orders, preliminary injunctions, or preliminary
mandatory injunctions against government infrastructure projects is prohibited
under this law.
Section 3 RA 8975 states that No court, except the Supreme Court shall issue any
TRO or preliminary injunction or preliminary mandatory injunction against the
government, or any of its subdivisions or officials, whether public or private acting
under the government direction to restrain, prohibit or compel the following acts:
1. Acquisition, clearance and development of the right-of-way
and/or site or location of any national government project;
2. Bidding or awarding of contract/ project of the national
government;
3. Commencement, prosecution, execution, implementation,
operation of any such contract or project;
4. Termination or rescission of any such contract/project; and
5. The undertaking or authorization of any other lawful activity
necessary for such contract/project.
Accordingly, a Regional Trial Court (RTC) that ignores the statutory prohibition and
issues a TRO or a writ of preliminary injunction or preliminary mandatory injunction
against a government contract or project acts contrary to law. (Nerwin Industries
Corporation vs. PNOC-Energy Development Corporation, G.R. No. 167057, April
11, 2012) – LPB
This law expressly repealed Presidential Decree No. 605 (prohibiting injunction
involving concessions, licenses and other permits issued by public administrative
office or bodies for the exploitation of natural resources) and Presidential Decree
No. 1818 (prohibiting injunction in cases involving infrastructures and natural
resources development and public utilities).
R.A. 8975 prohibits the issuance of TRO and/or writ of preliminary injunction against
national government infrastructure projects, not merely national government
projects. While the E-Passport Project is national in scope, it is an information and
communication technology project with no relation to infrastructure or any civil
works component. Hence, it is excluded from the coverage of R.A. 8975 and may
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be stayed by a writ of injunction. (Department of Foreign Affairs vs. Falcon, G.R.

No. 176657; September 1, 2010)
i. Rule on prior or contemporaneous service of summons in relation to attachment
(out of place here)
5. Receivership (Rule 59)
Receiver defined
Receiver is a representative of the court appointed for the purpose of
PRESERVING AND CONSERVING the property in litigation and prevent its possible
destruction or dissipation, if it were left in the possession of any of the parties. He
is not the representative of any or the parties but by all of them to the end that
their interests may be equally protected with the least possible inconvenience
and expense.
a. Cases when receiver may be appointed

b. Requisites
Rule 59, Section 1. Appointment of receiver.
Upon a verified application, one or more receivers of the property subject of the
action or proceeding may be appointed by the court where the action is
pending, or by the Court of Appeals or by the Supreme Court, or a member
thereof, in the following cases:
(a) When it appears from the verified application, and such other
proof as the court may require, that the party applying for the
appointment of a receiver has an interest in the property or fund
which is the subject of the action or proceeding, and that such
property or fund is in danger of being lost, removed, or materially
injured unless a receiver be appointed to administer and preserve it;
(b) When it appears in an action by the mortgagee for the
foreclosure of a mortgage that the property is in danger of being
wasted or dissipated or materially injured, and that its value is
probably insufficient to discharge the mortgage debt, or that the
parties have so stipulated in the contract of mortgage;
(c) After judgment, to preserve the property during the pendency of
an appeal, or to dispose of it according to the judgment, or to aid
execution when the execution has been returned unsatisfied or the
judgment obligor refuses to apply his property in satisfaction of the
judgment, or otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears that the appointment of a
receiver is the most convenient and feasible means of preserving,
administering, or disposing of the property in litigation.
During the pendency of an appeal, the appellate court may allow an application
for the appointment of a receiver to be filed in and decided by the court of origin
and the receiver appointed to be subject to the control of said court.
c. Requirements before issuance of an Order
Rule 59, Sec. 2. Bond on appointment of receiver.
Before issuing the order appointing a receiver the court shall require the applicant
to file a bond executed to the party against whom the application is presented,
in an amount to be fixed by the court, to the effect that the applicant will pay
such party all damages he may sustain by reason of the appointment of such
receiver in case the applicant shall have procured such appointment without
sufficient cause; and the court may, in its discretion, at any time after the
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appointment, require an additional bond as further security for such damages.

(3a)
d. General powers of a receiver
Rule 59, Sec. 6. General powers of receiver.
Subject to the control of the court in which the action or proceeding is pending,
a receiver shall have the power to bring and defend, in such capacity, actions in
his own name; to take and keep possession of the property in controversy; to
receive rents; to collect debts due to himself as receiver or to the fund, property,
estate, person, or corporation of which he is the receiver; to compound for and
compromise the same; to make transfers; to pay outstanding debts; to divide the
money and other property that shall remain among the persons legally entitled
to receive the same; and generally to do such acts respecting the property as
the court may authorize. However, funds in the hands of a receiver may be
invested only by order of the court upon the written consent of all the parties to
the action.
No action may be filed by or against a receiver without leave of the court which
appointed him.
e. Two (2) [actually 3] kinds of bonds
1. applicants bond (Rule 59, Sec. 2)
2. counterbond (Rule 59, Sec. 3)
3. receivers bond (Rule 59, Sec. 4)
f. Termination of receivership
Rule 59, Sec. 8. Termination of receivership; compensation of receiver.
Whenever the court, motu proprio or on motion of either party, shall determine
that the necessity for a receiver no longer exists, it shall, after due notice to all
interested parties and hearing, settle the accounts of the receiver, direct the
delivery of the funds and other property in his possession to the person adjudged
to be entitled to receive them, and order the discharge of the receiver from
further duty as such. The court shall allow the receiver such reasonable
compensation as the circumstances of the case warrant, to be taxed as costs
against the defeated party, or apportioned, as justice requires.
Receivership other than that under Rule 58
1. Receivership in aid of execution of judgment under Rule 39, Sec. 1
2. Bank receivership
3. Receivership in petitions for insolvency under the Insolvency Law
Appointment of a Receiver
The general rule is that neither party to the litigation should be appointed as a
receiver without the consent of the other because a receiver is supposed to be
an impartial and disinterested person. (Alcantara v. Abbas, No. L-14890,
September 30, 1963, 9 SCRA 54 )A clerk of court should not be appointed as a
receiver as he is already burdened with his official duties. (Abrigo v. Kayanan, No.
L-28601, March 18, 1983, 121 SCRA 20)
Specific situations when a receiver may be appointed
1. Family Code, Article 101
If a spouse, without just cause, abandons the other or fails to comply
with his or his obligations to the family, the aggrieved spouse may
petition the court for receivership.
2. Sec. 41, Rule 39
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The court may appoint a receiver of the property of the judgment

obligor; and it may also forbid the transfer or other disposition of, or
any interference with, the property of the judgment obligor not
exempt from execution.
3. After the perfection of an appeal, the trial court retains jurisdiction
to appoint a receiver of the property under litigation since this matter
does not touch upon the subject of the appeal. (Rules of Court, Rule
41, Sec. 9; Acua v. Caluag, 101 Phil. 446 [1957])
4. After final judgment, a receiver may be appointed as an aid to the
execution of judgment. (Philippine Trust Company v. Santamaria, 53
Phil. 463 [1929])
5. Appointment of a receiver over the property in custodia legis may
be allowed when it is justified by special circumstances as when it is
reasonably necessary to secure and protect the rights of the real
owner. (Dolar v. Sundiam, No. L-27631, April 30, 1971, 38 SCRA 616)
6. In a petition for corporate rehabilitation, when the court finds the
same to be sufficient in form and substance, the Court shall, within
five days from filing of the petition appoint a Rehabilitation and fix his
bond. (Rules of Procedure on Corporate Rehabilitation 2008)
6. Replevin (Rule 60)
What is replevin?
Replevin or delivery of personal property consists in the delivery, by order of the
court, of personal property by the defendant to the plaintiff upon filing of a bond.
Replevin and attachment distinguished
Preliminary Attachment Replevin
Available even if recovery of personal Available only if principal relief

property is only incidental relief in the action sought is recovery of personal
property; Relief for damages
are only incidental
Can be resorted to even if personal property Can be sought only where

is in the custody of a third person defendant is in actual or
constructive possession of the
personality involved
Extends to all kinds of property Extends only to personal

property capable of manual
delivery
To recover possession of personal property To recover personal property

unjustly detained; Presupposes that it is being even if it is not being
concealed, removed, or disposed to prevent concealed, removed, or
its being found or taken by the applicant disposed of
Can be resorted to even if property is in Cannot be availed of if property

custodia legis is under custodia legis
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a. When may writ be issued

b. Requisites
Steps in the Issuance and Implementation of a Writ of Replevin
1. A party praying for the recovery of possession of a personal
property files with the court at the commencement of the action or
before answer an application for a writ of replevin. (Rule 60, Sec. 1)
2. To accompany the application is the AFFIDAVIT which should state:
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 knowledge, information, and
belief;
c) that the property has not been distrained or taken for
a tax assessment or a fine pursuant to law, or seized
under a writ of execution or preliminary attachment, or
otherwise placed under custodia legis, or if so seized ,
that it is exempt from such seizure or custody; and
d) the actual market value of the property
Notes:
1) The applicant for a writ of replevin need not be the owner for it is
enough that he has a right to possess it. (Yang v. Valdez, G.R. No.
73317, August 31, 1989, 177 SCRA 141)
2) Replevin cannot be availed of if the property is in custodia legis or
where it is under attachment or was seized under a search warrant
(Pagkalinawan v. Gomez, Nos. L-22585, December 16, 1967, 21 SCRA
1275; Rules of Court, Rule 60, Sec. 2 (c ) except:
a) when the seizure is illegal; (Bagalihog v. Fernandez,
G.R. No. 96356, June 27, 1991, 198 SCRA 614) and
b) where there is reason to believe that the seizure will
not anymore be followed by the filing of the criminal
action in court or there are conflicting claims. (Chua v.
Court of Appeals, G.R. No. 79021, May 17, 1993, 222
SCRA 85)
3) The defendant is entitled to the return of the property taken under
a writ of replevin if the following requisites are met:
1) he posts a redelivery bond and
2) he furnishes the plaintiff of a copy of the undertaking
within five (5)
3) days from taking and
4) the bond is sufficient and in proper form. (Rule 60,
Secs. 5 and 6)
Note: The RTC had no jurisdiction to take cognizance of the petition for replevin
by respondents, issue the writ of replevin and order its enforcement. The Collector
of Customs had already seized the vehicles and set the sale thereof at public
auction. The RTC should have dismissed the petition for replevin at the outset. By
granting the plea of respondents (plaintiffs below) for the seizure of the vehicles
and the transfer of custody to the court, the RTC acted without jurisdiction over
the action and the vehicles subject matter thereof. The forfeiture of seized goods
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in the Bureau of Customs is a proceeding against the goods and not against the
owner. It is in the nature of a proceeding in rem, i.e., directed against the res or
imported articles and entails a determination of the legality of their importation.
In this proceeding, it is, in legal contemplation, the property itself which commits
the violation and is treated as the offender, without reference whatsoever to the
character or conduct of the owner (Asian Terminals, Inc. vs. Bautista-Ricafort, G.R.
No. 166901, October 27, 2006).
c. Affidavit and bond; Redelivery Bond
Rule 60, Sec. 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 market 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.
Order of Replevin
1) 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. (R60S3)
2) A writ of replevin may be served anywhere in the Philippines
Redelivery bond
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 redelivery bond that is, a bond executed to the
applicant:
1. In DOUBLE THE VALUE of the property as stated in the applicants
affidavit for the delivery of the property to the applicant, if such
delivery be adjudged; and
2. For the payment of such sum to him as may be recovered against
the adverse party; and
3. By serving a copy of such bond on the applicant. (R60S5)
d. Sheriffs duty in the implementation of the writ; when property is claimed by third
party
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Disposition of property by sheriff

1) The sheriff shall retain the property for 5 days. The adverse party
may object to the sufficiency of the bond or surety or he may file a
redelivery bond.
2) If after 5 days and the adverse party failed to object or his
redelivery bon is insufficient, the sheriff shall deliver the property to
the applicant (R60S6)
3)The defendant is entitled to the return of the property under writ of
replevin if:
a. He seasonably posts a redelivery bond (R60S5)
b. Plaintiffs bond is found to be insufficient or defective
and is not replaced with a proper bond.
c. Property is not delivered to plaintiff for any reason
(R60S6)
Rule 60, Sec. 7. Proceedings where property claimed by third person.
The third person against whom the writ or replevin had been issued
must make an
AFFIDAVIT of his title thereto, or right to the possession
thereof,
stating the grounds of such right or title, 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 as a general rule.
The sheriff is bound to keep the property when the applicant, on
demand of the sheriff, files 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 (indemnity bond)
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 is filed.
The proceedings set forth above shall not prevent such claimant or
any third person from vindicating his claim to the property, in the
same or a separate action.
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 attachment, 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.
S. Special Civil Actions (Rules 62-71)
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1. Nature of special civil actions

A special civil action is a civil action which aside from being governed by the rules
for ordinary civil action is subject to specific rules provided for it.
2. Ordinary civil actions versus special civil actions
An ordinary civil action is governed by the rules for ordinary civil actions while a
special civil action is governed by the rules for ordinary civil action and by specific
rules.
Every ordinary civil action must be based on a cause of action, while not every
special civil action must be based on a cause of action, as for instance,
declaratory relief. (Primer-Reviewer on Remedial Law, Manuel R. Riguera, First
Edition, p. 462)
A special civil action is a civil action which aside from being governed by the rules
for ordinary civil action is subject to specific rules provided for it.
How commenced:
o COMPLAINT (IEFPF)
a. interpleader
b. expropriation
c. foreclosure of real estate mortgage
d. partition
e. forcible entry and unlawful detainer
o PETITION (DRCPMQC)
a. declaratory relief
b. review of adjudications of Comelec and COA
c. certiorari
d. prohibition
e. mandamus
f. quo warranto
g .contempt
Writs of injunction, certiorari, mandamus, prohibition, quo warranto and habeas
corpus issued by the RTCs are enforceable within their respective judicial regions
(BP 129).
ORDINARY CIVIL ACTIONS SPECIAL CIVIL ACTIONS
Governed by rules for ordinary civil Generally governed by rules for ordinary
actions civil actions but subject to special rules
Must be based on a cause of action Not necessarily such as in certain special

meaning an act or omission has civil actions:
violated the rights of another 1. Declaratory relief no actual violation of
rights
2. Interpleader no interest in the subject
matter
May be filed initially in either the There are some special civil actions which
MTC or RTC depending upon the cannot be commenced in the MTC, i.e.
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"
jurisdiction amount or the nature of petitions for certiorari, prohibition and

the action. mandamus
Ordinary civil actions are filed as Some special civil actions are filed as
complaints. complaints, but others are filed as
petitions
3. Jurisdiction and venue

Venue is governed by the general rules on venue, except as
otherwise indicated in the particular rules for special civil actions.
Special civil actions within the jurisdiction of first level courts:
1. quieting of title if the assessed value is within its
jurisdiction
2. partition, if the assessed value is within its jurisdiction
(Russel vs. Vestil, March 17, 1999)
3. ejectment suits (Rule 70)
4. contempt (Rule 71)
4. Interpleader (Rule 62)
Definition
A remedy whereby a person who has property in his possession or has
an obligation to render wholly or partially,
without claiming any right in both,
comes to court and asks that the defendants who have made
conflicting claims upon the same property or who consider
themselves entitled to demand compliance with the obligation
be required to litigate among themselves in order to determine who
is entitled to the property or payment of the obligation (Beltran vs.
PHHC, 1969).
Purpose
To compel conflicting claimants to interplead and litigate their
several claims among themselves (R62S1)
To protect a person not against double liability but against a double
vexation in respect of one’s liability (Beltran vs. PHHC)
a. Requisites for interpleader
1) The plaintiff claims no interest in the subject matter or,
his claim is not disputed;
2) There must at least be two (2) or more CONFLICTING
CLAIMANTS;
3) The parties to be interpleaded must make effective
claims; and
4) The subject matter must be one and the same and
derived from the same source. (Feria, (2001) Civil
Procedure Annotated,Vol.2, p.425)
b. When to file
1. Interpleader was found to be a proper action in an
action by a lessee who does not know to whom to pay
rentals due to conflicting claims on the property
(Pagkalinawan v. Rodas, 80 Phil. 281 [1948]) and in an
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"
action by a bank where the purchaser of a cashier’s

check claims it was lost and another has presented it for
payment. (Mesina v. Intermediate Appellate Court, No.
L-70145, November 13, 1986, 145 SCRA 497).
2. It was however found to be improper in an action
where defendants had conflicting claims against the
plaintiff; (Beltran v. Peoples Homesite and Housing
Corporation, No. L-25138, August 28, 1969, 29 SCRA 145)
in an action where one of the defendants had earlier
sued the plaintiff and secured a judgment against him
which has already become final, the action being
barred by laches or unreasonable delay; (Wack Golf
and Country Club, Inc. v. Won, No. L-23851, March 26;
1976, 70 SCRA 165.) and in an action where there are
non-conflicting claims among the defendants, their
respective claims being separate and distinct from each
other. Hence, the complaint for interpleader may be
dismissed for lack of cause of action. (Vda. De Camilo
vs. Aranio, L-15653, September 29, 1961.)
3. An interpleader is commenced to protect a party, not
against double liability, but against double vexation on
account of one liability
4. The parties in an interpleader action may file
counterclaims, cross-claims, third party complaints and
responsive pleadings in the same action, as provided in
the second paragraph of Section 5 of Rule 62 of the 1997
Rules of Civil Procedure in the interest of a complete
adjudication of the controversy and its incidents. (Arreza
v. Diaz, Jr., GR No. 133113, August 30, 2001)
Procedural Features
1. Upon the filing of the complaint, the court shall issue an order
requiring the conflicting claimants to interplead with one another.
(Rule 62, Sec. 2)
2. The court may direct in the same order mentioned in the
preceding paragraph that the subject matter of the suit be paid or
delivered to the court.
3. The summons shall be accompanied by copies of the complaint
and order.
4. The defendants may file a motion to dismiss on the ground of the
impropriety of the interpleader action or on other appropriate
grounds specified in Rule 16.
5. The defendants shall serve a copy of the answer not only on the
plaintiff but also on their co-defendants who may file their reply
thereto.
6. The effect of a failure to plead within the prescribed period is that,
upon motion, the defendant will be declared in default and
thereafter, the Court renders judgment barring him from any claim in
respect of the subject matter.
5. Declaratory Reliefs and Similar Remedies (Rule 63)
a. Who may file the action
Rule 63, Section 1. Who may file petition.
Any person interested under a deed, will, contract or other written instrument,
whose rights are affected by a statute, executive order or regulation, ordinance,
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"
or any other governmental regulation may, before breach or violation thereof,

bring an action in the appropriate Regional Trial Court to determine any question
of construction or validity arising, and for a declaration of his rights or duties,
thereunder.
An action for the reformation of an instrument, to quiet title to real property or
remove clouds therefrom, or to consolidate ownership under Article 1607 of the
Civil Code, may be brought under this Rule.
Rule 63, Sec. 2. Parties.
All persons who have or claim any interest which would be affected by the
declaration shall be made parties; and no declaration shall, except as otherwise
provided in these Rules, prejudice the rights of persons not parties to the action.
Procedural Features
1. The petition must be filed before there is a breach of contract or
violation of the statute of ordinance. (Rule 63, Sec. 1)
2. A third-party complaint is not allowed. (Commissioner of Customs
v. Cloribel, No. L-21036, June 30, 1977, 77 SCRA 459) )
3. Except in actions for quieting of title, the courts action in an action
for declaratory relief is discretionary. Thus, the court, motu proprio or
upon motion, may refuse to exercise the power to declare rights and
to construe instruments in any case where a decision would not
terminate the uncertainty or controversy which gave rise to the
action or in any case where the declaration or construction is not
necessary under the circumstances. (Rule 63, Sec. 5)
4. When a statute, executive order or any government regulation or
ordinance is alleged to be unconstitutional, the Solicitor-General
should be notified by the party assailing the same. (Rule 63, Sec. 3)
5. If the validity of a local government ordinance is in question, the
prosecutor or attorney of the local government should be notified.
(Rule 63, Sec. 3)
6. A compulsory counterclaim is allowed. (Visayan Packing Corp. v.
Reparations Commission, GR No. L-29673, November 12, 1987)
7. When there is a breach of contract or violation of a statute or
ordinance before the final termination of the case, the case is
converted into an ordinary action. (Rule 63, Section 6)
b. Requisites of action for declaratory relief
1. The subject matter of the controversy must be a deed, will,
contract or other written instrument, statute, executive order or
regulation or ordinance; (Rule 63, Section 1)
2. There must be a justiciable controversy (Obiles v. Republic, 92 Phil.
864 [1953])
3. The controversy must be between persons whose interest is
adverse
4. The parties must have legal interest in the controversy
5. The controversy must be ripe for judicial determination (Board of
Optometry v. Colet, G.R. No. 122241, July 30, 1996, 260 SCRA 88)
6. The petition must be filed before there is a breach or violation. (Rule
63, Sec. 1.)
A petition for declaratory relief is ripe for judicial determination if there is a
threatened litigation in the immediate future, which litigation is imminent and
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inevitable unless prevented by the declaratory relief sought. (Tolentino v. Board

of Accountancy GR No. L-362, September 28, 1951).
c. When court may refuse to make judicial declaration
Rule 63, Sec. 5. Court action discretionary.
Except in actions falling under the second paragraph of Section 1 of this Rule, the
court, motu proprio or upon motion, may refuse to exercise the power to declare
rights and to construe instruments in any case where a decision would not
terminate the uncertainty or controversy which gave rise to the action, or in any
case where the declaration or construction is not necessary and proper under
the circumstances.
Declaratory Relief Improper in the Following Cases:
1. to obtain judicial declaration of citizenship (Dy Poco v.
Commissioner of Immigration, No. L-22313, March 31, 1966, 16 SCRA
615; Singson vs. Republic, No. L-21855, January 30, 1968, 22 SCRA 353)
;
2. to determine the validity or construction to be placed on a
registration certificate (Obiles v. Republic, supra.)
3. to seek relief on moot questions or to resolve hypothetical, abstract
or theoretical questions, or to decide claims which are uncertain (Lim
v. Republic, No. L-29535, February 27, 1971, 37 SCRA 783) ;
4. to resolve political issues or questions (Dela Llana v. Commission on
Elections, No. L-47245, December 9, 1977, 80 SCRA 525)
5. to test the correctness or validity of a court decision (Tanda v.
Aldaya, 52 O.G. No. 11,5175 (September 15, 1956)
6. to determine hereditary rights (Edades v. Edades, 52 O.G. No. 11,
5149 (September 15, 1956)
7. when the petition is based upon the happening of a contingent
event;
8. when the petitioner is not the real party in interest (Santos v.
Aquino, 94 Phil. 65 [1953])
9. when administrative remedies have not yet been exhausted.
(Ollada v. Central Bank, No. L-11357, May 31, 1962, 5 SCRA 297)
10. when the action purports to be a declaratory relief allegedly
because the terms of certain ordinances were ambiguous but is, in
reality, a petition for the declaration of nullity of these ordinances.
(Santos vs. Aquino ,the Municipal Council of Malabon, G.R. No.
L5101, November 28, 1953)
11. when judgment would have to be made, only after a judicial
investigation of the disputed issues rather than a construction of
definite stated rights, status and other relations, commonly expressed
in written instruments. In this case, what was sought was the
declaration that the private respondent was a corporation and that
it was separate and distinct from C.F. Sharp Kabushiki Kaisha and
that, therefore, it was not liable for the latters indebtedness (Kawasaki
Port Service Corp. v. Amores, GR No. L-58340 ,July 16, 1991).
- Even when the action is for a declaratory judgment, the court
may grant such affirmative relief as may be warranted by the
evidence when the allegations in the complaint are sufficient
to make out a case for specific performance or recovery of
property with claims for damages, and the defendants did not
raise an issue in the trial court to challenge the remedy or the
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form of the action availed of. (Adlawan v. IAC, G.R. No. 73022
February 9, 1989 )
- A third-party complaint is not proper when the main case is
for a declaratory relief. This is because in a third-party
complaint, the defendant or third-party plaintiff is supposed to
seek contribution, indemnity, subrogation or any other relief
from the third-party defendant in respect of the claim of the
plaintiff against him. (Customs v. Cloribel, G.R. No. L-21036 June
30, 1977)
- The non-joinder of persons who may claim interest which may
be affected by a declaratory judgment is not a jurisdictional
defect, as Section 2 of Rule 63 provides that said declaration
shall not prejudice their interests, unless otherwise provided in
the Rules of Court. (Baguio Citizens Action, Inc. v The City
Council, etc. of Baguio City, L-27247, April 20, 1983)
d. Conversion to ordinary action
Rule 63, Sec. 6. Conversion into ordinary action.
If before the final termination of the case, a breach or violation of an instrument
or a statute, executive order or regulation, ordinance, or any other governmental
regulation should take place, the action may thereupon be converted into an
ordinary action, and the parties shall be allowed to file such pleadings as may be
necessary or proper.
e. Proceedings considered as similar remedies
A. Reformation of an instrument
For an action for reformation of instrument to prosper, the following requisites must
concur: (1) there must have been a meeting of the minds of the parties to the
contract; (2) the instrument does not express the true intention of the parties; and
(3) the failure of the instrument to express the true intention of the parties is due to
mistake, fraud, inequitable conduct or accident. (Emilio vs. Rapal, G.R. No.
181855, 2010 March 30, 2010)
B. Consolidation of ownership
It is settled that the buyer in a foreclosure sale becomes the absolute owner of
the property purchased if it is not redeemed during the period of one year after
the registration of the sale. As such, he is entitled to the possession of the said
property and can demand it at any time following the consolidation of ownership
in his name and the issuance to him of a new transfer certificate of title. The buyer
can in fact demand possession of the land even during the redemption period
except that he has to post a bond in accordance with Section 7 of Act No. 3135,
as amended. No such bond is required after the redemption period if the property
is not redeemed. Possession of the land then becomes an absolute right of the
purchaser as confirmed owner. Upon proper application and proof of title, the
issuance of the writ of possession becomes a ministerial duty of the court. (BPI
Family Savings Bank, Inc. vs. Golden Power Diesel Sales Center, Inc., G.R. No.
176019, January 12, 2011 citing China Banking Corporation v. Lozada, G.R. No.
164919, 4 July 2008, 557 SCRA 177, citing IFC Service Leasing and Acceptance
Corporation v. Nera, 125 Phil. 595 [1967].)
C. Quieting of title to real property
For an action to quiet title to prosper, two (2) indispensable requisites must concur,
namely: (1) the plaintiff or complainant has a legal or an equitable title to or
interest in the real property subject of the action; and (2) the deed, claim,
encumbrance, or proceeding claimed to be casting cloud on his title must be
shown to be in fact invalid or inoperative despite its prima facie appearance of
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"
validity or legal efficacy. (Eland Philippines, Inc. vs. Garcia, G.R. No. 173289,
February 2010.)
Legal title denotes registered ownership, while equitable title means beneficial
ownership. In the absence of such legal or equitable title, or interest, there is no
cloud to be prevented or removed. (Mananquil vs. Moico, G.R. No. 180076,
November 21, 2012)
DECLARATORY RELIEF
What is declaratory relief?
A declaratory relief is an action which any person interested under a deed, will,
contract, or other written instrument, whose rights are afffected by a statute.
executive order or regulation, or ordinance may, before breach or violation
thereof, bring to determine any question of construction or validity arising from
the instrument or statute and for a DECLARATION of his RIGHTS or DUTIES
thereunder (Mirandon vs. Wellington Ty & Bros., Inc., 81 SCRA 506 [1978]).
In a petition for declaratory relief the subject matter must refer to a deed, will,
contract or other written instrument, or to a statute or ordinance, to warrant
declaratory relief. Any other matter not mentioned therein is deemed excluded.
This is under the principle of expressio unius est exclusio alterius. A petition for
declaratory relief cannot properly have a court decision as its subject matter.
(Reyes vs. Ortiz, G.R. No. 137794; August 11, 2010 - TDC)
What are the requisites for declaratory relief?
a. existence of a justiciable controversy;
b. controversy is between persons whose interests are adverse;
c. party seeking the relief has a legal interest in the controversy; and
d. the issue invoked is ripe for judicial determination (Board of
Optometry vs. Colet, 260 SCRA 89 [1996])
A justiciable controversy refers to an existing case or controversy that is
appropriate or ripe for judicial determination, not one that is conjectural or merely
anticipatory.
When is the remedy improper?
Where there is a BREACH of a contract, or VIOLATION of a statute or right.
Once there is a breach, the remedy is no longer an action for declaratory relief
but some other remedy.
Distinguish declaratory relief from interpleader
1. Interpleader - filed by a person who claims NO INTEREST
whatsoever in the subject matter.
2. Declaratory relief - party seeking relief has LEGAL INTEREST in the
controversy.
RTC has original jurisdiction

The Supreme Court assumes no jurisdiction over petitions for declaratory relief.
These petitions must be filed with the RTC, which has original jurisdiction over the
same (In re: Bermudez, 145 SCRA 160 [1986]).
A petition for declaratory relief should be brought in the appropriate regional trial
court. The purpose of the petition is to ask the court to determine any question of
construction or validity arising from the subject matter thereof, and for the
declaration of rights and duties thereunder. Hence, the subject matter of such
petition raises issues which are not capable of pecuniary estimation and must be
filed in the RTC (Sec. 19 [1], BP 129; Sec. 1, Rule 63). It would be error to file the
petition the petition with the Supreme Court which has no original jurisdiction to
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entertain a petition for declaratory relief (Ortega vs. Quezon City Government,
G.R. No. 161400, September 2, 2005).
However, where the action is for quieting of title which is a similar remedy under
the second paragraph of Sec. 1 of Rule 63, the jurisdiction will depend upon the
assessed value of the property.
6. Review of Judgments and Final Orders or Resolution of the COMELEC and COA
(Rule 64)
a. Application of Rule 65 under Rule 64
b. Distinction in the application of Rule 65 to judgments of the
COMELEC and COA and the application of Rule 65 to other tribunals,
persons and officers
REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC
AND COA
The mode of review of decisions or final orders of COMELEC and COA in the
exercise of their quasi-judicial functions is by means of petition for CERTIORARI
under Rule 65.
- Period for filing within 30 days from notice of the judgment or final
order or resolution.
- The filing of a motion for new trial or reconsideration of said
judgment or final or resolution, if allowed under the procedural rules
of the Commission concerned, shall INTERRUPT the 30-day period.
- If the motion is denied, the aggrieved party may file the petition
within the remaining period, but which shall not be less than 5 days in
any event, reckoned from the notice of default (Rule 64, Sec. 3).
Motion for reconsideration of decision of COMELEC Division required; not of
COMELEC En Banc
Under Sec. 1 (d) of COMELEC Rules of Procedure - no motion for reconsideration
of En Banc ruling, resolution, order or decision except in election cases.
Motion for reconsideration of COMELEC Division ruling should first be filed with
COMELEC En Banc, whose decision may be brought on certiorari to SC.
Exc. when division committed grave abuse of discretion, in which case the
aggrieved party may directly file a petition for certiorari with SC .
Fresh Period Rule under Neypes not applicable to the petition for certiorari from
the decision of the Commission on Audit under Rule 64. There is no parity between
the petition for review under Rule 42 and the petition for certiorari under Rule 64.
Rule 42 governs an appeal from the judgment or final order rendered by the
Regional Trial Court in the exercise of its appellate jurisdiction. The petition for
certiorari under Rule 64 is similar to the petition for certiorari under Rule 65, and
assails a judgment or final order of the Commission on Elections (COMELEC) , or
the Commission on Audit (COA). The petition is designed to correct only errors of
jurisdiction, not errors of judgment. (Fortune Life Insurance Company vs.
Commission on Audit, G.R. No. 213525, January 27, 2015) - LPB
7. Certiorari, Prohibition and Mandamus (Rule 65)
a. Definitions and distinctions
Certiorari
Definition:
The latin word certiorari literally means to be informed of, to be made certain in
regard to (Black’s law dictionary) Certiorari will issue only to correct errors of
jurisdiction and not to correct errors of procedure or mistakes in the courts findings
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and conclusions. (Lee vs. People 393 SCRA 397; Microsoft Corporation vs. Best
Deal Computer Center 389 SCRA 615)
Terminology
1) Without juri or a virtual duty to perform a duty enjoined
by law. (Duero vs. C.A. 373 SCRA 11 GR No.131282; Vda
de Daffon vs. CA, 387 SCRA 427 G.R. No. 129017, August
20, 2002)
PETITION FOR CERTIORARI UNDER RULE 65
How taken and time for filing (Secs. 1 & 4)
Verified petition 60 days from notice of judgment, order or resolution, or denial of
MR or MNT.
Period now inextendible. last paragraph of Section 4: No extension of time to file
the petition shall be granted except for compelling reasons and in no case
exceeding fifteen (15) days has been DELETED by A.M. No. 07-7-12-SC, effective
December 27, 2007.
Hence, petitions for certiorari must be filed strictly within 60 days from notice of
judgment or from the order denying a motion for reconsideration.
If the Court intended to retain the authority of the proper courts to grant
extensions under Section 4 of Rule 65, the paragraph providing for such authority
would have been preserved. The removal of the said paragraph under the
amendment by A.M. No. 07-7-12-SC of Section 4, Rule 65 simply meant that there
can no longer be any extension of the 60-day period within which to file a petition
for certiorari. (Laguna Metts Corporation vs. Court of Appeals, G.R. No. 185220,
July 27, 2009)
The general rule, as held in Laguna Metts Corporation, is that the filing of a petition
for certiorari is non-extendible. However, there are exceptions, as stated in
Domdom vs. Sandiganbayan, Labao vs. Flores and Mid-Islands Power Generation
vs. Court of Appeals, which can be summarized under two main grounds: to serve
substantial justice or to protect strong public interest (Republic vs. St. Vincent de
Paul Colleges, Inc., G.R. No. 192908, August.22, 2012)
Three (3) essential dates that must be stated in a petition for certiorari under Rule65
. First, the date when notice of the judgment or final order or resolution was
received; second, when a motion for new trial or reconsideration was filed; and
third, when notice of the denial thereof was received. Failure of petitioner to
comply with this requirement shall be sufficient ground for the dismissal of the
petition. Substantial compliance will not suffice in a matter involving strict
observance with the Rules. (Vinuya vs. Romuloc, G.R. No. 162230, August 12, 2014)
- LPB
Re-filing of petition for certiorari should be done within the 60-day period. Where
the dismissal by the Court of Appeals of the petition for certiorari in CA-G.R. SP No.
69744 for non-submission of a non-forum shopping certification was without
prejudice and petitioner could have re-filed such petition, such re-filing should still
be done within the prescribed period under Section 4, Rule 65 of the 1997 Rules
of Civil Procedure, or not later than sixty days from notice of the assailed Order of
the RTC. (Estrera vs. CA, G.R. No. 154235-36, August 16, 2006)
Abandonment of judicial courtesy
Unless there is a temporary restraining order or preliminary injunction issued by a
higher court, the main or principal case should proceed despite the filing of a
petition for certiorari questioning an act or omission of a court or tribunal
Section 7. Expediting proceedings; injunctive relief. - The court in which the
petition is filed may issue orders 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 proceedings. The petition shall not
!'&"
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interrupt the course of the principal case unless a temporary restraining order or
a writ of preliminary injunction has been issued against the public respondent from
further proceeding in the case.
The public respondent shall proceed with the principal case within ten (10) days
from the filing of a petition for certiorari with a higher court or tribunal, absent a
temporary restraining order or a preliminary injunction, or upon its expiration.
Failure of the public respondent to proceed with the principal case may be a
ground for an administrative charge.
Judicial courtesy, therefore, can no longer be used as an excuse by courts or
tribunals not to proceed with the principal case. This is the effect of the
amendment of Section 7.
!! Petitions for certiorari, prohibition and mandamus against
any interlocutory order are not available under the Rule on
Summary Procedure (Sec. 19) , in a petition for a writ of
amparo (Sec. 19, Rule on the Writ of Amparo) , and in a
petition for a writ of habeas data (Sec. 19, Rule on the Writ
of Habeas Data). and small claims cases (Sec. 14 (g). A.M.
No. 08-8-7-SC). By implication it is available against the
judgment.
!! If involving acts or omissions of a quasi-judicial agency,
petition filed in CA (Sec. 4)
Requisites:
a. Tribunal, board or officer exercises judicial or quasi-judicial
functions
b. Tribunal, board or officer has acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction
Denial of motion to dismiss or to quash, being interlocutory, cannot
be questioned by certiorari; it cannot be subject of appeal, until final
order or judgment is rendered. Remedy: to continue the case in due
course and, when an unfavorable verdict is handed down, to take
an appeal in the manner authorized by law. Exceptions (when
recourse to certiorari or mandamus appropriate) : (a) when trial court
issued the order without or excess of jurisdiction; (b) when there is
patent grave abuse of discretion by the trial court; or (c) when
appeal would not prove to be a speedy and adequate remedy as
when an appeal would not promptly relieve defendants from the
injurious effects of the patently mistaken order (DBP vs. La Campana
Development Corp., 448 SCRA 384 [2005]).
c. NO APPEAL or any plain, speedy and adequate remedy in the
ordinary course of law for the purpose of annulling or modifying the
proceeding
Generally, if appeal is available, certiorari cannot be resorted to.
Appeal and certiorari are mutually exclusive and not alternative or successive.
Certiorari filed instead of appeal during the period of appeal did not toll the
period or prevent judgment from becoming final (Del Rosario vs. Galagot,
Galagot, 166 SCRA 429[1998]).
If remedy of appeal had already been lost by petitioners own neglect or error in
choice of remedies, certiorari will not lie as substitute or tool to shield petitioner
from adverse consequences of such neglect of error (Professional Regulations
Commission vs. CA, 292 SCRA 155[1998]).
Exceptions:
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a. when public welfare and advancement of public policy dictate

b. when broader interest of justice so requires
c. when writs issued are null and void
d. when questioned order amounts to an oppressive exercise of
judicial authority
e. where appeal is not adequate, speedy and effective
In any of such instances, special civil action of certiorari may be availed of
- even during the pendency of the case or even after judgment, or
- even when appeal has been availed of
Availability of appeal does not foreclose recourse to
certiorari where appeal is not adequate, or equally
beneficial, speedy and sufficient (PNB vs. Sayoc, 292
SCRA 365 [1998]).
While general rule is that special civil action of certiorari
may not be used as substitute for lapsed appeal, rule
may be relaxed when rigid application will result in
manifest failure or miscarriage of justice (Mejares vs.
Reyes, 254 SCRA 425 [1992]).
> When remedies are not incompatible, filing of certiorari not
abandonment of appeal. In this case, the appeal is from the decision
in the main case, while certiorari is directed against the order
denying the motion for new trial (Lansang Jr. vs. CA, 184 SCRA 230
[1990]; St. Peter Memorial Park vs. Campos, 63 SCRA 180 [1975]).
Lansang: After judgment is rendered and an appeal therefrom
perfected, a petition for certiorari relating to certain incidents therein
may prosper where the appeal does not appear to be a plain,
speedy and adequate remedy. Appeal and certiorari are not
remedies that exclude each other. Although notice of appeal
indicated that Lansang was appealing from the decision and order
denying his motion for reconsideration, which in effect was a motion
for new trial, he filed certiorari against the order, because of the daily
penalty of P250 mentioned in the award (1985).
> An appeal from the judgment does not bar a certiorari petition
against the order granting execution pending appeal and the
concomitant issuance of a writ of execution. Appeal would not be
an adequate remedy from such premature execution when the
same is not founded on good reasons (Manacop vs. Equitable
PCIBank, 468 SCRA 256, [2005])
> Simultaneous filing of a petition for certiorari under Rule 65 and an
ordinary appeal under Rule 41 cannot be allowed since one remedy
would necessarily cancel each other. For certiorari to prosper, it is not
enough that the trial court committed grave abuse of discretion
amounting to lack or excess of jurisdiction; the requirement that there
be no appeal, or any plain, speedy and adequate remedy in the
ordinary course of law must also be satisfied. This is true even if the
error ascribed to the trial court is lack of jurisdiction, etc. While it may
be true that a judgment or final order was rendered under
circumstances that would otherwise justify resort to a special civil
action, the latter would be unavailing if there is an appeal, etc. If the
court has jurisdiction over the subject matter and of the persons, its
ruling upon all questions involved are within its jurisdiction and may
be corrected only by appeal from the decision (Manacop vs.
Equitable PCIBank, 468 SCRA 256, [2005])
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In a special civil action for certiorari, the Court of Appeals has ample authority to
receive new evidence and perform any act necessary to resolve factual issues.
Section 9 of Batas Pambansa Blg. 129, as amended, states that, "The Court of
Appeals shall have the power to try cases and conduct hearings, receive
evidence and perform any and all acts necessary to resolve factual issues raised
in cases falling within its original and appellate jurisdiction, including the power to
grant and conduct new trials or further proceedings. (Sps. Marcelo vs. LBC Bank,
G.R. No. 183575, April 11, 2011)
!! Motion for reconsideration required before certiorari can be
filed(Rule 65, Section 4) Its purpose is to grant an opportunity for the
court to correct any actual or perceived error attributed to it by the re-
examination of the legal and factual circumstances of the case.
!! Exceptions:
(a) where the order is a patent nullity, as where the court a quo has
no jurisdiction;
(b) where the questions raised in the certiorari proceeding have
been duly raised and passed upon by the lower court, or are the
same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the interests of the
government or the petitioner or the subject matter of the action is
perishable;
(d) where, under the circumstances, a motion for reconsideration
would be useless;
(e) where petitioner was deprived of due process and there is
extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent
and the granting of such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of
due process;
(h) where the proceedings was ex parte or in which the petitioner
had no opportunity to object; and
(i) where the issue raised is one purely of law or where public interest
is involved. (Novateknika Land Corporation vs. Philippine National
Bank, G.R. No. 194104, March 13, 2013; Republic vs. Bayao, G.R.
No. 179492, June 5, 2013)
Does the CTA have jurisdiction over a special civil action for certiorari assailing an
interlocutory order issued by the RTC in a local tax case?
YES. The authority of the CTA to take cognizance of petitions for certiorari
questioning interlocutory orders issued by the RTC in a local tax case is included
in the powers granted by the Constitution as well as inherent in the exercise of its
appellate jurisdiction.
It would be somewhat incongruent with the pronounced judicial abhorrence to
split jurisdiction to conclude that the intention of the law is to divide the authority
over a local tax case filed with the RTC by giving to the CA or this Court jurisdiction
to issue a writ of certiorari against interlocutory orders of the RTC but giving to the
CTA the jurisdiction over the appeal from the decision of the trial court in the same
case. It is more in consonance with logic and legal soundness to conclude that
the grant of appellate jurisdiction to the CTA over tax cases filed in and decided
by the RTC carries with it the power to issue a writ of certiorari when necessary in
aid of such appellate jurisdiction. (City of Manila vs. Cuerdo, G.R. No. 175723,
February 4, 2014. En Banc)
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PROHIBITION
What is the purpose of prohibition?
To prevent unlawful and oppressive exercise of legal authority and to provide for
a fair and orderly administration of justice.
It is directed against proceedings that are done by
a. any tribunal, corporation, board or officer whether exercising
b. judicial, quasi-judicial or ministerial functions,
c. without or in excess of jurisdiction, or with grave abuse of discretion,
d. there being no appeal or other plain, speedy and adequate
remedy in the ordinary course of law (Rule 65. Sec. 1).
Prohibition not to correct errors of judgment but to prevent or restrain usurpation
by inferior tribunals and to compel them to observe the limitation of their
jurisdictions.
It is a PREVENTIVE remedy, to restrain the doing of some act to be done. Not
intended to provide a remedy for acts already accomplished.
When does prohibition lie against an accomplished act?
When the wrongful act is continuing or the questioned act is a NULLITY, done
without or in excess of jurisdiction, or with grave abuse of discretion, and there
being no appeal or other plain, speedy and adequate remedy in the ordinary
course of law (Vergara vs. Roque, 78 SCRA 312 [1977]).
A petition for prohibition and injunction can be availed of to restrain an act that is
already fait accompli.
The present action is a petition for prohibition, certiorari, injunction, restraining
order and all other legal, just and equitable reliefs. It has been held that the
remedies of prohibition and injunction are preventive and, as such, cannot be
availed of to restrain an act that is already fait accompli. Where the act sought
to be prohibited or enjoined has already been accomplished or consummated,
prohibition or injunction becomes moot. Nevertheless, even if the principal issue is
already moot, this Court may still resolve its merits for the future guidance of both
bench and bar. Courts will decide a question otherwise moot and academic if it
is capable of repetition, yet evading review.
There are times when the controversy is of such character that, to prevent its
recurrence and to assure respect for constitutional limitations, this Court must pass
on the merits of a case. This is one such case. If not addressed here and now,
there is great probability that the central question involved in this case will haunt
us again in the future. Furthermore, if not corrected, such an act would give rise
to mischief and dangerous precedent whereby those in the corridors of power
could avoid judicial intervention and review by merely speedily and stealthily
completing the commission of an illegality.
In any event, the present petition is also for certiorari and there is no procedural
bar for the Court to pass upon the question of whether the proclamations of
respondents Guidote-Alvarez, Caparas, Maosa and Moreno as National Artists
were attended by grave abuse of presidential discretion. (National Artists vs.
Executive Secretary , G.R. No. : 189028, July 16, 2013)
Grave abuse of discretion lower court has exercised its power in an arbitrary or
despotic manner, by reason of passion or personal hostility, and it must be so
patent and gross as to amount to an evasion, or to a virtual refusal to perform the
duty enjoined or to act in contemplation of law.
Excess of jurisdiction the court, board or officer has jurisdiction over a case but
has transcended the same or acted without any authority.
MANDAMUS
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When is mandamus the proper remedy?

It is the proper remedy if it can be shown that there is neglect on the part of a
tribunal or officer in the performance of an act which the law specifically enjoins
as a duty or an unlawful exclusion of a party from the use and enjoyment of a
right or office to which he is entitled.
Requisites for mandamus to issue
a. The applicant must have a CLEAR LEGAL RIGHT to the thing
demanded. The right must be well-defined, clear and certain (Lemi
vs. Valencia, 26 SCRA 203 [1968]).
b. Mandamus never issues in doubtful cases, nor will it issue to
establish a legal right, but only to ENFORCE one that is already clearly
established (Lim Tay vs. CA, 293 SCRA 634 [1998]).
c. The respondent must have the POWER TO PERFORM the act
concerning which the application for mandamus is made. For
mandamus is a command to exercise a power already possessed
and to perform a duty already imposed (Alzate vs. Aldona, 8 SCRA
219 [1965]).
d. There must be UNREASONABLE DELAY in the performance of the
duty, notwithstanding demand to perform it (Assn. of Small
Landowners vs. Secretary of Agrarian Reform, 175 SCRA 343 [1989].
Ministerial and discretionary power
Mandamus will lie to compel the doing of a ministerial act.
It does not lie to control discretion, although it may issue to compel the exercise
of discretion but not the discretion itself. Mandamus can require action only but
not specific action where the act sought to be performed involves the exercise
of discretion (Sharp International Marketing vs. CA. 201 SCRA 299 [1991])
Mandamus is employed to compel the performance, when refused, of a
ministerial duty, but not to compel the performance of a discretionary duty. The
legal right to the performance of the particular act sought to be compelled must
be clear and complete. Otherwise, where the right sought to be enforced is in
substantial doubt or dispute, mandamus cannot issue. Thus, the issuance by the
LRA officials of a decree of registration is not a purely ministerial duty in cases
where they find that such would result to the double titling of the same parcel of
land. (Fidela R. Angeles vs. The Secretary of Justice, G.R. No. 142549, March 9,
2010)
When can mandamus issue to compel a discretionary act? when there is grave
abuse of discretion.
Ordinarily, mandamus will not prosper to compel a discretionary act. But where
there is gross abuse of discretion, manifest injustice or palpable excess of authority
equivalent to denial of a settled right to which petitioner is entitled, and there is
no other plain, speedy and adequate remedy, the writ shall issue(First Philippine
Holdings vs. Sandiganbayan, 253 SCRA 30 [1996]).
When mandamus may not lie
1. Where the position is disputed by two persons who both claim a
right thereto, mandamus does not lie to oust the person who
occupies it and exercises its functions. The remedy is an action for
QUO WARRANTO which tests the title to one’s office claimed by
another and to oust the holder from its enjoyment (Garces vs. CA,
159 SCRA 99 [1996]).
2. Mandamus does not lie to enforce the performance of contractual
obligations. A contractual obligation is not a duty specifically
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enjoined by law resulting from office, trust or station (Aprueba vs.

Ganzon, 18 SCRA 8 [1966]).
3. The appointing power being discretionary, mandamus does not lie
to compel the appointing authority to appoint a particular person to
a particular position, though how qualified he may be to the position
(Gloria vs. De Guzman, Jr., 249 SCRA 126 [1995]).
b. Requisites
c. When petition for certiorari, prohibition and mandamus is proper
1. When appeal is not a speedy and adequate remedy (Saludes v.
Pajarillo, 78 Phil. 754 [1947])
2. When an order is issued without or in excess of jurisdiction;
(Philippine National Bank v. Florendo, G.R. No. 62082, February 26,
1992, 206 SCRA 582)
3. In consideration of public welfare and for the advancement of
public policy (Jose v. Zulueta, No. L-16598, May 31, 1961, 2 SCRA 574)
4. Order is a patent nullity (Marcelo v. De Guzman, No. L-29077. June
29, 1982, 114 SCRA 657)
5. To avoid future litigation (St. Peter Memorial Park, Inc. v. Campos,
Jr., No. L-38280, March 21, 1975, 63 SCRA 180) ;
6. To avoid a miscarriage of justice (Escudero v. Dulay, No. L-60578,
February 23, 1988, 158 SCRA 69. ) ;
7. In furtherance of the broader interest of justice and equities
(Marahay v. Melicor, G.R. No. 44980, February 6, 1990, 181 SCRA 811).
d. Injunctive relief
SECTION 7. Expediting proceedings; injunctive relief . The court in which the
petition is filed may issue orders 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 proceedings. The petition shall not
interrupt the course of the principal case unless a temporary restraining order or
a writ of preliminary injunction has been issued against the public respondent from
further proceeding in the case.
e. Certiorari distinguished from Appeal by Certiorari; Prohibition and Mandamus
distinguished from Injunction; when and where to file petition
Certiorari as a Mode of Appeal Certiorari as a Special Civil Action (Rule

(Rule 45) 65)
Called petition for review on A special civil action that is an original

certiorari, is a mode of appeal, action and not a mode of appeal, and not
which is but a continuation of the a part of the appellate process but an
appellate process over the original independent action.
case
Seeks to review final judgments or May be directed against an interlocutory

final orders order of the court or where no appeal or
plain or speedy remedy available in the
ordinary course of law
Raises only questions of law Raises questions of jurisdiction because a

tribunal, board or officer exercising judicial
or quasi-judicial functions has acted
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without jurisdiction or in excess of

jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction
Filed within 15 days from notice of Filed not later than 60 days from notice of
judgment or final order appealed judgment, order or resolution sought to be
from, or of the denial of petitioners assailed and in case a motion for
motion for reconsideration or new reconsideration or new trial is timely filed,
trial; whether such motion is required or not, the
60 day period is counted from notice of
denial of said motion;
Extension of 30 days may be Extension no longer allowed;

granted for justifiable reasons
Does not require a prior motion for Motion for Reconsideration is a condition
reconsideration precedent, subject to exceptions
Stays the judgment appealed from Does not stay the judgment or order
subject of the petition unless enjoined or
restrained
Parties are the original parties with The tribunal, board, officer exercising
the appealing party as the judicial or quasi-judicial functions is
petitioner and the adverse party as impleaded as respondent
the respondent without
impleading the lower court or
judge
Filed with only the Supreme Court May be filed with the Supreme Court,
Court of Appeals, Sandiganbayan, or
Regional Trial Court
SC may deny the petition motu Court may dismiss the petition outright on
propio on the ground that the the ground that the same is patently
appeal is without merit, or without merit, or prosecuted manifestly for
prosecuted manifestly for delay, or delay, or that the questions raised are too
that the questions raised therein unsubstantial to require consideration
are too unsubstantial to require
consideration
(Prohibition and Mandamus distinguished from Injunction; when and where to file
petition
Prohibition Mandamus Injunction
Prohibition is an Mandamus is an Main action for injunction

extraordinary writ extraordinary writ seeks to enjoin the
commanding a tribunal, commanding a defendant from the
corporation, board or tribunal, corporation, commission or
person, whether exercising board or person, to do continuance of a specific
judicial, quasi-judicial or an act required to be act, or to compel a
ministerial functions, to done: particular act in violation
desist from further of the rights of the
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proceedings when said (a) When he unlawfully applicant. Preliminary

proceedings are without or neglects the injunction is a provisional
in excess of its jurisdiction, performance of an act remedy to preserve the
or with abuse of its which the law status quo and prevent
discretion, there being no specifically enjoins as a future wrongs in order to
appeal or any other plain, duty, and there is no preserve and protect
speedy and adequate other plain, speedy certain interests or rights
remedy in the ordinary and adequate during the pendency of
course of law(Sec. 2, Rule remedy in the ordinary an action.
65). course of law; or
(b) When one
unlawfully excludes
another from the use
and enjoyment of a
right or office to which
the other is
entitled(Sec. 3, Rule
65).
Prohibition Injunction
May be the main action or just

Always the main action
a provisional remedy
Directed against a court, a tribunal exercising

Directed against a party
judicial or quasi-judicial functions
Ground must be that the court acted without Does not involve a question of
or in excess of jurisdiction jurisdiction
Prohibition Mandamus
To prevent an act by a respondent To compel an act desired
May be directed against entities exercising May be directed against

judicial or quasi-judicial, or ministerial functions judicial and non-judicial entities
Extends only to ministerial

Extends to discretionary functions
functions
Mandamus Quo warranto
Clarifies who has legal title to

Clarifies legal duties, not legal titles
the office, or franchise
Respondent, without claiming any right to the

Respondent usurps the office
office, excludes the petitioner
f. Exceptions to filing of motion for reconsideration before filing petition

Motion for reconsideration is required before certiorari can be filed; exceptions:
1. where the order is a patent nullity, as where the court has no
jurisdiction
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2. where the questions raised have been duly raised and passed
upon by the lower court, or are the same as those raised before the
lower court
3. where there is an urgent necessity for the resolution of the question
and any further delay would prejudice the interests of the
government or of the petitioner or the subject matter of the action is
perishable
4. where, under the circumstances, a motion for reconsideration
would be useless
5. where petitioner was deprived of due process and there is extreme
urgency for relief
6. where, in a criminal case, relief from an order of arrest is urgent and
the granting of such relief by the trial court is improbable
7. where the proceedings in the lower court are a nullity for lack of
due process
8. where the proceedings were ex parte or in which the petitioner
had no opportunity to object
9. where the issue raised is one purely of law or where public interest
is involved
10. where judicial intervention is urgent
11. where its application may cause great and irreparable damage
12. failure of a high government official from whom relief is sought to
act on the matter
13. when the issue of non-exhaustion of administrative remedies has
been rendered moot
14. where special circumstances warrant immediate and more direct
action (Novateknika Land Corporation vs. Philippine National Bank,
G.R. No. 194104, March 13, 2013; Republic vs. Bayao, G.R. No. 179492,
June 5, 2013; Tan, Jr. vs. Sandiganbayan, 242 SCRA 452; Marawi
Marantao General Hospital vs. CA, 349 SCRA 321).
g. Reliefs petitioner is entitled to
Rule 65, Sec. 1 (Certiorari) --
x x x that judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.
Rule 65, Sec. 2 (Prohibition)
x x x that judgment be rendered commanding the respondent to desist from
further proceedings in the action or matter specified therein, or otherwise
granting such incidental reliefs as law and justice may require.
Rule 65. Sec. 3 (Mandamus)
x x x that judgment be rendered commanding the respondent,
immediately or at some other specified by the court, to do the act required
to be done to protect the rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the wrongful acts of the respondent.
h. Actions/Omissions of MTC/RTC in election cases
Rule 65, Sec. 4, as amended by A. M. No. 07-7-12 dated Dec, 12, 2007
If the petition relates to an act or omission of a municipal trial court or of a
corporation, board, officer or person, it shall be filed with the Regional Trial Court
exercising jurisdiction over the territorial area as defined by the Supreme Court. It
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may also be filed with the Court of Appeals whether or not the same is in aid of its
appellate jurisdiction, or with the Sandiganbayan if it is in aid of its appellate
jurisdiction. If the petition involves an act or omission of a quasi-judicial agency,
unless otherwise provided by law or these rules, the petition shall be filed with and
be cognizable only by the Court of Appeals.
In election cases involving an act or omission of a municipal or regional trial court,
the petition shall be filed exclusively with the Commission on Elections, in aid of
its appellate jurisdiction
Following the hierarchy of courts, no certiorari against the RTC shall be filed with
the Supreme Court. This will help prevent the clogging of the Supreme Courts
dockets as litigants will be discouraged from filing petitions directly with the
Supreme Court.
For election cases involving acts or omissions of a municipal or regional trial court,
the petition shall be filed exclusively with the Comelec as ruled by the Supreme
Court in Relampagos vs. Comelec (243 SCRA 690, April 27, 1995).
i. Where to file petition
See above
j. Effects of filing of an unmeritorious petition (for certiorari)
Rule 65
Section 8. Proceedings after comment is filed. - After the comment or other
pleadings required by the court are filed, or the time for the filing thereof has
expired, the court may hear the case or require the parties to submit memoranda.
If, after such hearing or filing of memoranda or the expiration of the period for
filing, the court finds that the allegations of the petition are true, it shall render
judgment for such relief to which the petitioner is entitled.
However, the court may dismiss the petition if it finds the same patently without
merit or prosecuted manifestly for delay, or if the questions raised therein are too
unsubstantial to require consideration. In such event, the court may award in favor
of the respondent treble costs solidarily against the petitioner and counsel, in
addition to subjecting counsel to administrative sanctions under Rules 139 and
139-B of the Rules of Court.
The Court may impose motu proprio, based on rep ipsa loquitur, other disciplinary
sanctions or measures on erring lawyers for patently dilatory and unmeritorious
petitions for certiorari.
8. Quo Warranto (Rule 66)
a. Distinguish from Quo Warranto in the Omnibus Election Code
Quo Warranto (Rule 66) Quo Warranto (Election Code)
Subject of the petition is in relation to Subject of the petition is in relation to an

an appointive office; elective office;
The issue is the legality of the Grounds relied upon are: (a) ineligibility
occupancy of the office by virtue of to the position; or (b) disloyalty to the
a legal appointment; Republic.
Petition is brought either to the May be instituted with the COMELEC by

Supreme Court, the Court of any voter contesting the election of any
Appeals or the Regional Trial Court; member of Congress, regional, provincial
or city officer; or to the MeTC, MTC or
MCTC if against any barangay official;
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Filed within one (1) year from the Filed within ten (10) days after the
time the cause of ouster, or the right proclamation of the results of the
of the petitioner to hold the office or election;
position arose;
Petitioner is the person entitled to the Petitioner may be any voter even if he is
office; not entitled to the office;
The court has to declare who the When the tribunal declares the
person entitled to the office is if he is candidate-elect as ineligible, he will be
the petitioner. unseated but the person occupying the
second place will not be declared as the
one duly elected because the law shall
consider only the person who, having
duly filed his certificate of candidacy,
received a plurality of votes.
b. When government commences an action against individuals

Rule 66, Section 1. Action by Government against individuals.
An action for the usurpation of a public office, position or franchise may be
commenced by a verified petition brought in the name of the Republic of the
Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises
a public office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision
of law, constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines
without being legally incorporated or without lawful authority so to
act.
c. When individual may commence an action
Rule 66, Sec. 5. When an individual may commence such an action.
A person claiming to be entitled to a public office or position usurped or unlawfully
held or exercised by another may bring an action therefor in his own name. (6)
d. Judgment in Quo Warranto action
Rule 66, Sec. 9. Judgment where usurpation found.
When the respondent is found guilty of usurping, intruding into, or unlawfully
holding or exercising a public office, position or franchise, judgment shall be
rendered that such respondent be ousted and altogether excluded therefrom,
and that the petitioner or relator, as the case may be, recover his costs. Such
further judgment may be rendered determining the respective rights in and to the
public office, position or franchise of all the parties to the action as justice requires.
e. Rights of a person adjudged entitled to public office
Rule 66, Sec. 10. Rights of persons adjudged entitled to public office; delivery of
books and papers; damages.
If judgment be rendered in favor of the person averred in the complaint to be
entitled to the public office he may, after taking the oath of office and executing
any official bond required by law, take upon himself the execution of the office,
and may immediately thereafter demand of the respondent all the books and
papers in the respondents custody or control appertaining to the office to which
the judgment relates. If the respondent refuses or neglects to deliver any book or
paper pursuant to such demand, he may be punished for contempt as having
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disobeyed a lawful order of the court. The person adjudged entitled to the office
may also bring action against the respondent to recover the damages sustained
by such person by reason of the usurpation.
QUO WARRANTO
What is quo warranto?
A petition for quo warranto is a proceeding to determine the right of a person to
the use or exercise of a franchise or office and to oust the holder from its
enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy
the privilege (Mendoza vs. Allas, 302 SCRA 623 [1999]).
Quo warranto and mandamus distinguished
Quo warranto remedy to try the right to an office or franchise and to oust the
holder from its enjoyment. There is usurpation or intrusion into office.
Mandamus lies to enforce clear legal duties, not to try disputed titles. Respondent,
without claiming any right to an office, excludes petitioner therefrom.
Who may be parties?

Any person claiming to be entitled to a public office may bring an action for quo
warranto without the intervention of the Solicitor General.
Only the person who is in unlawful possession of the office, and all who claim to
be entitled to that office may be made parties in order to determine their
respective rights thereto in the same action.
Period for filing
A petition for quo warranto and mandamus affecting titles to public office must
be filed within one (1) year from the date petitioner was ousted from his position.
This period is not interrupted by the prosecution of any administrative remedy.
While it may be desirable that administrative remedies be first resorted to, no one
is compelled or bound to do so, and as said remedies neither are prerequisite to
nor bar the institution of quo warranto proceedings, it follows that he who claims
the right to hold a public office allegedly usurped by another and who desires to
seek redress in the court, should file the proper judicial action within the
reglementary period (Galano vs. Roxas, 67 SCRA 8 [1975]).
Exception to one year period
Laches does not attach and failure to file quo warranto proceeding does not
operate adversely against a dismissed government employee where it was the
act of responsible government officials which contributed to the delay in the filing
of the complaint for reinstatement (Cristobal vs. Melchor, 78 SCRA 175 [1977])
9. Expropriation (Rule 67)
a. Matters to allege in complaint for expropriation
Rule 67, Section 1. The complaint.
The right of eminent domain shall be exercised by the filing of a verified complaint
which shall (a) state with certainty the right and purpose of expropriation, (b)
describe the real or personal property sought to be expropriated, and (c) join as
defendants all persons owning or claiming to own, or occupying, any part thereof
or interest therein, showing, so far as practicable, the separate interest of each
defendant. If the title to any property sought to be expropriated appears to be in
the Republic of the Philippines, although occupied by private individuals, or if the
title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or
certainty specify who are the real owners, averment to that effect shall be made
in the complaint.
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Contents of Complaint
1. Right and purpose of expropriation;
1. Description of the real or personal property sought to be
expropriated;
2. All persons owning or claiming to own or occupying any part or
interest therein must be named as defendants, showing, as far as
practicable, the separate interest of each defendants;
3. If the title of the property to be expropriated is in the name of the
Republic of the Philippines, although occupied by private individuals,
or if the title is obscure or doubtful, averment to that effect shall be
made in the complaint. (Rule 67, Section 1)
4. When the property already appears to belong to the Republic,
there is no sense in the Republic instituting expropriation proceedings
against itself. It can still, however, file a complaint for expropriation
against the private persons occupying the property. In such an
expropriation case, the owner of the property is not an indispensable
party. (Republic vs. Mangotara, G.R. No. 170375, October 13, 2010)
b. Two stages in every action for expropriation
Two (2) Stages in Expropriation Proceedings
1. Determination of the authority of the plaintiff to exercise the power
of eminent domain and the propriety of its exercise in the context of
the facts. This stage is terminated by either an order of dismissal of the
action or order of the condemnation declaring that expropriation is
proper and legal. These orders are final and therefore appealable.
(Municipality of Biñan v. Garcia, G.R. No. 69260, December 22, 1989,
180 SCRA 576)
2. Determination of just compensation. This is done with the
assistance of not more than three (3) commissioners. The order fixing
just compensation is also final and appealable. (Municipality of Biñan
v. Garcia, G.R. No. 69260, December 22, 1989, 180 SCRA 576) Just
compensation is to be determined as of the date of the taking of the
propriety or the filing of the complaint, whichever comes first.
c. When plaintiff can immediately enter into possession of the real property, in
relation to RA 8974
Expropriation procedures under Republic Act No. 8974 and Rule 67 of the Rules of
Court speak of different procedures, with the former specifically governing
expropriation proceedings for national government infrastructure projects.
(Republic of the Philippines, Represented by the Toll Regulatory Board vs. Holy
Trinity Realty Development Corp., G.R. No. 172410, April 14, 2008.)
The most crucial difference between Rule 67 and Rep. Act No. 8974 concerns the
particular essential step the Government has to undertake to be entitled to a writ
of possession. To be entitled to a writ of possession, Rule 67 merely requires the
Government to deposit with an authorized government depositary the assessed
value of the property for expropriation for it to be entitled to a writ of possession.
On the other hand, Rep. Act No. 8974 requires that the Government make a
direct payment to the property owner before the writ may issue. Moreover, such
payment is based on the zonal valuation of the BIR in the case of land, the value
of the improvements or structures under the replacement cost method, or if no
such valuation is available and in cases of utmost urgency, the proffered value of
the property to be seized. (Republic vs. Gingoyon, G.R. No. 166429, December 19,
2005)
It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit under
Rule 67 with the scheme of "immediate payment" in cases involving national
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government infrastructure projects. (Republic vs. Gingoyon, G.R. No. 166429,

December 19, 2005)
At the same time, Section 14 of the Implementing Rules recognizes the continued
applicability of Rule 67 on procedural aspects when it provides "all matters
regarding defenses and objections to the complaint, issues on uncertain
ownership and conflicting claims, effects of appeal on the rights of the parties,
and such other incidents affecting the complaint shall be resolved under the
provisions on expropriation of Rule 67 of the Rules of Court. " (Republic vs.
Gingoyon, G.R. No. 166429, December 19, 2005)
Under Rule 67, Sec. 2, the only requirement for immediate possession is notice to
the owner of the property and deposit of the amount equivalent to the assessed
value of the property. (National Power Corporation v. Jocson, GR Nos. 94193-99,
February 25, 1992) The issuance of the writ of possession becomes a ministerial
duty of the court if the preliminary deposit has already been made by the
expropriator. (Biglang-Awa v. Bacalla, GR Nos. 139927 and 139936, November 22,
2000)
Just compensation is determined as of time of taking of property or filing of
thecomplaint, whichever comes first (Republic vs. Vda. de Castellvi, G.R. No. L-
20620, August 15, 1974)
There is taking when:
1. the expropriator enters a private property;
2. the entry must be for more than a momentary period;
3. the entry should be under warrant or color of legal authority;
4. the property must be devoted to a public use or otherwise
informally appropriated or injuriously affected; and
5. the utilization of the property for public use must be in such a way
as to oust the owner and deprive him of all beneficial enjoyment of
the property. (Didipio Earth-Savers Multi-Purpose Association,
Incorporated vs. Elisea Gozun, G.R. No. 157882, March 30, 2006)
The appointment of commissioners is mandatory and cannot be dispensed with,
without violating the constitutional right to due process and the mandated rule
established by the Revised Rules of Court(Manila Electric Company vs. Pineda,
GR No. L-59791, February 13, 1992)
The court has the jurisdiction to determine, in the same expropriation
proceedings, conflicting claims of ownership over the property involved and
declare the lawful owner thereof. (Republic vs. CFI of Pampangs, L-27006, June
30, 1970)
In the event the judgment of expropriation is reversed by the appellate court and
the case is remanded to the lower court with the mandate to determine the
damages caused to the landowner, such landowner has the option of proving
such damages either in the same expropriation case or in a separate action
instituted for that purpose (MWV vs. De los Angeles, 55 Phil. 776) , as the judgment
denying the right of expropriation is not res judicata on the issue of damages
arising from such illegal expropriation (Republic vs. Baylosis, 109 Phil. 580)
d. New system of immediate payment of initial just compensation
See above
e. Defenses and objections
Rule 67, Sec. 3. Defenses and objections.
If a defendant has no objection or defense to the action or the taking of his
property, he may file and serve a notice of appearance and a manifestation to
that effect, specifically designating or identifying the property in which he claims
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to be interested, within the time stated in the summons. Thereafter, he shall be

entitled to notice of all proceedings affecting the same.
If a defendant has any objection to the filing of or the allegations in the complaint,
or any objection or defense to the taking of his property, he shall serve his answer
within the time stated in the summons. The answer shall specifically designate or
identify the property in which he claims to have an interest, state the nature and
extent of the interest claimed, and adduce all his objections and defenses to the
taking of his property. No counterclaim, cross-claim or third-party complaint shall
be alleged or allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the court, in
the interest of justice, may permit amendments to the answer to be made not
later than ten (10) days from the filing thereof. However, at the trial of the issue of
just compensation, whether or not a defendant has previously appeared or
answered, he may present evidence as to the amount of the compensation to
be paid for his property, and he may share in the distribution of the award.
f. Order of Expropriation
Rule 67, Sec. 4. Order of expropriation.
If the objections to and the defenses against the right of the plaintiff to
expropriate the property are overruled, or when no party appears to defend as
required by this Rule, the court may issue an order of expropriation declaring that
the plaintiff has a lawful right to take the property sought to be expropriated, for
the public use or purpose described in the complaint, upon the payment of just
compensation to be determined as of the date of the taking of the property or
the filing of the complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed by
any party aggrieved thereby. Such appeal, however, shall not prevent the court
from determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to dismiss
or discontinue the proceeding except on such terms as the court deems just and
equitable.
g. Ascertainment of just compensation
Rule 67, Sec. 5. Ascertainment of compensation.
Upon the rendition of the order of expropriation, the court shall appoint not more
than three (3) competent and disinterested persons as commissioners to ascertain
and report to the court the just compensation for the property sought to be taken.
The order of appointment shall designate the time and place of the first session of
the hearing to be held by the commissioners and specify the time within which
their report shall be submitted to the court.
Copies of the order shall be served on the parties. Objections to the appointment
of any of the commissioners shall be filed with the court within ten (10) days from
service, and shall be resolved within thirty (30) days after all the commissioners
shall have received copies of the objections.
h. Appointment of Commissioners; Commissioners report; Court action upon
commissioners report
See Rule 67, Sec. 5 above
Rule 67, Sec. 6. Proceedings by commissioners.
Before entering upon the performance of their duties, the commissioners shall
take and subscribe an oath that they will faithfully perform their duties as
commissioners, which oath shall be filed in court with the other proceedings in the
case. Evidence may be introduced by either party before the commissioners who
are authorized to administer oaths on hearings before them, and the
commissioners shall, unless the parties consent to the contrary, after due notice
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to the parties to attend, view and examine the property sought to be

expropriated and its surroundings, and may measure the same, after which either
party may, by himself or counsel, argue the case. The commissioners shall assess
the consequential damages to the property not taken and deduct from such
consequential damages the consequential benefits to be derived by the owner
from the public use or purpose of the property taken, the operation of its franchise
by the corporation or the carrying on of the business of the corporation or person
taking the property. But in no case shall the consequential benefits assessed
exceed the consequential damages assessed, or the owner be deprived of the
actual value of his property so taken.
Rule 67, Sec. 7. Report by commissioners and judgment thereupon.
The court may order the commissioners to report when any particular portion of
the real estate shall have been passed upon by them, and may render judgment
upon such partial report, and direct the commissioners to proceed with their work
as to subsequent portions of the property sought to be expropriated, and may
from time to time so deal with such property. The commissioners shall make a full
and accurate report to the court of all their proceedings, and such proceedings
shall not be effectual until the court shall have accepted their report and
rendered judgment in accordance with their recommendations. Except as
otherwise expressly ordered by the court, such report shall be filed within sixty (60)
days from the date the commissioners were notified of their appointment, which
time may be extended in the discretion of the court. Upon the filing of such report,
the clerk of the court shall serve copies thereof on all interested parties, with
notice that they are allowed ten (10) days within which to file objections to the
findings of the report, if they so desire.
Rule 67, Sec. 8. Action upon commissioners report.
Upon the expiration of the period of ten (10) days referred to in the preceding
section, or even before the expiration of such period but after all the interested
parties have filed their objections to the report or their statement of agreement
therewith, the court may, after hearing, accept the report and render judgment
in accordance therewith; or, for cause shown, it may recommit the same to the
commissioners for further report of facts; or it may set aside the report and appoint
new commissioners; or it may accept the report in part and reject it in part; and
it may make such order or render such judgment as shall secure to the plaintiff
the property essential to the exercise of his right of expropriation, and to the
defendant just compensation for the property so taken.
i. Rights of plaintiff upon judgment and payment
Rule 67, Sec. 10. Rights of plaintiff after judgment and payment.
Upon payment by the plaintiff to the defendant of the compensation fixed by the
judgment, with legal interest thereon from the taking of the possession of the
property, or after tender to him of the amount so fixed and payment of the costs,
the plaintiff shall have the right to enter upon the property expropriated and to
appropriate it for the public use or purpose defined in the judgment, or to retain
it should he have taken immediate possession thereof under the provisions of
section 2 hereof. If the defendant and his counsel absent themselves from the
court, or decline to receive the amount tendered, the same shall be ordered to
be deposited in court and such deposit shall have the same effect as actual
payment thereof to the defendant or the person ultimately adjudged entitled
thereto.
j. Effect of recording of judgment
Rule 67, Sec. 13. Recording judgment, and its effect.
The judgment entered in expropriation proceedings shall state definitely, by an
adequate description, the particular property or interest therein expropriated,
and the nature of the public use or purpose for which it is expropriated. When real
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estate is expropriated, a certified copy of such judgment shall be recorded in the

registry of deeds of the place in which the property is situated, and its effect shall
be to vest in the plaintiff the title to the real estate so described for such public
use or purpose.
EXPROPRIATION
Distinction between eminent domain and expropriation - Eminent domain is the
right. Power of the state to take or authorize the taking of any property within its
jurisdiction for public use without the owner’s consent. Inherent in sovereignty and
exists in a sovereign state without any recognition thereof in the Constitution.
Possessed by the State. By delegation, may also be possessed by local gov’ts,
other public entities, and public utilities.
Expropriation is the procedure for enforcing said right.
What are the stages of expropriation?
1. Determination of the RIGHT TO EXPROPRIATE or the authority of
plaintiff to exercise power of eminent domain and propriety of its
exercise in the context of the facts. It ends with an order of
condemnation declaring that plaintiff has lawful right to take the
property for public use or purpose after payment of just
compensation to be determined as of the date of filing of the
complaint. It may be an order of dismissal. Both orders are final
orders, hence appealable within 30 days.
2. Determination by the court of JUST COMPENSATION with the
assistance of three commissioners. Order fixing just compensation
also final because leaves nothing more to be done by the court
regarding the issue. Also appealable but within 15 days.
What is the period to appeal from order of expropriation?
In actions for eminent domain, as in actions for partition, two appeals are allowed
by law. Period is 30 days from notice of order of condemnation Cases where
multiple appeals are allowed, where record on appeal is required. In the event
of an appeal from a separate judgment, the original record cannot be sent up
to the appellate court. The record will have to stay with the trial court because it
will still try the case as regards the other defendants (Municipality of Biñan vs.
Garcia, 180 SCRA 576 [1989]).
Meaning of just compensation
Just compensation means the market value of the property at the time of taking.
It means a full and fair equivalent of the property for the loss sustained. Equivalent
shall be real, substantial, full and prompt. It must be fair not only to the owner but
also to the taker.
When should just compensation be determined?
The just compensation should be determined at the time of actual taking. The
provisions of Sec. 4, Rule 67, Rules of Court to the effect that just compensation is
to be determined at the time of taking of the property or the filing of the
complaint, whichever came first cannot prevail over Sec. 19, RA 7160, the Local
Government Code, a substantive law which provides that the amount to be paid
for the expropriate property shall be determined by the proper court based on
the fair market value at the time of taking the property. (The City of Cebu vs.
Spouses Degamo, G. R. No. 142971, May 7, 2002).
The expropriator who has taken possession of the property subject of
expropriation is obliged to pay reasonable compensation to the landowner for
the period of such possession although the proceedings had been discontinued
on the ground that the public purpose for the expropriation had meanwhile
ceased. (Republic vs. Borbon, G.R. No. 165654, January 12, 2015) - LPB
10. Foreclosure of Real Estate Mortgage (Rule 68)
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a. Judgment on foreclosure for payment or sale

Rule 68, Sec. 2. Judgment on foreclosure for payment or sale.
If upon the trial in such action the court shall find the facts set forth in the
complaint to be true, it shall ascertain the amount due to the plaintiff upon the
mortgage debt or obligation, including interest and other charges as approved
by the court, and costs, and shall render judgment for the sum so found due and
order that the same be paid to the court or to the judgment obligee within a
period of not less than ninety(90) days nor more than one hundred twenty(120)
days from the entry of judgment, and that in default of such payment the property
shall be sold at public auction to satisfy the judgment.
b. Sale of mortgaged property; effect
Rule 68, Sec. 3. Sale of mortgaged property; effect.
When the defendant, after being directed to do so as provided in the next
preceding section, fails to pay the amount of the judgment within the period
specified therein, the court, upon motion, shall order the property to be sold in
the manner and under the provisions of Rule 39 and other regulations governing
sales of real estate under execution. Such sale shall not affect the rights of persons
holding prior encumbrances upon the property or a part thereof, and when
confirmed by an order of the court, also upon motion, it shall operate to divest
the rights in the property of all the parties to the action and to vest their rights in
the purchaser, subject to such rights of redemption as may be allowed by law.
Upon the finality of the order of confirmation or upon the expiration of the period
of redemption when allowed by law, the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the possession of the property unless a
third party is actually holding the same adversely to the judgment obligor. The
said purchaser or last redemptioner may secure a writ of possession, upon motion,
from the court which ordered the foreclosure
c. Disposition of proceeds of sale
Rule 68, Sec. 4. Disposition of proceeds of sale.
The amount realized from the foreclosure sale of the mortgaged property shall,
after deducting the costs of the sale, be paid to the person foreclosing the
mortgage, and when there shall be any balance or residue, after paying off the
mortgage debt due, the same shall be paid to junior encumbrancers in the order
of their priority, to be ascertained by the court, or if there be no such
encumbrancers or there be a balance or residue after payment to them, then to
the mortgagor or his duly authorized agent, or to the person entitled to it.
d. Deficiency judgment
(1) Instances when court cannot render deficiency judgment
Rule 68, Sec. 5. How sale to proceed in case the debt is not all due.
If the debt for which the mortgage or encumbrance was held is not all due as
provided in the judgment, as soon as a sufficient portion of the property has been
sold to pay the total amount and the costs due, the sale shall terminate; and
afterwards, as often as more becomes due for principal or interest and other valid
charges, the court may, on motion, order more to be sold. But if the property
cannot be sold in portions without prejudice to the parties, the whole shall be
ordered to be sold in the first instance, and the entire debt and costs shall be
paid, if the proceeds of the sale be sufficient therefor, there being a rebate of
interest where such rebate is proper.
Rule 68, Sec. 6. Deficiency judgment.
If upon the sale of any real property as provided in the next preceding section
there be a balance due to the plaintiff after applying the proceeds of the sale,
the court, upon motion, shall render judgment against the defendant for any such
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balance for which, by the record of the case, he may be personally liable to the
plaintiff, upon which execution may issue immediately if the balance is all due at
the time of the rendition of the judgment; otherwise, the plaintiff shall be entitled
to execution at such time as the balance remaining becomes due under the
terms of the original contract, which time shall be stated in the judgment.
e. Judicial foreclosure versus extrajudicial foreclosure
Judicial and extrajudicial foreclosures distinguished
Judicial foreclosure of mortgage is governed by Rule 68 and must be done in
accordance with the procedure therein prescribed.
Extrajudicial foreclosure of mortgage is governed by Act No. 3135 as amended
and done by the sheriff pursuant to the special power of attorney inserted in the
mortgage document.
Extra-judicial Foreclosure (Act

Judicial foreclosure (Rule 68)
3135)
No complaint is filed; Complaint is filed with the courts;
No right of redemption except when

There is a right of redemption.
mortgagee is a banking institution; equity
Mortgagor has a right of
of redemption only (90 to 120 days, and
redemption for 1 year from
any time before confirmation of
registration of the sale;
foreclosure sale) ;
Mortgagee has to file a separate Mortgagee can move for deficiency

action to recover any deficiency; judgment in the same action
Buyer at public auction becomes

Buyer at public auction becomes
absolute owner only after finality of
absolute owner only after confirmation of
an action for consolidation of
the sale;
ownership;
Mortgagee is given a special

power of attorney in the mortgage
Mortgagee need not be given a special
contract to foreclose the
power of attorney.
mortgaged property in case of
default.
To enable the extrajudicial foreclosure of the Real Estate Mortgage of petitioners,

the special power to sell should have been either inserted in the REM itself or
embodied in a separate instrument attached to the REM. But it is not disputed that
no special power to sell was either inserted in the REM or attached to the REM.
Hence, respondent spouses as the foreclosing mortgagees could not initiate the
extrajudicial foreclosure, but must resort to judicial foreclosure pursuant to the
procedure set forth in Rule 68. The omission of the special power to sell the
property subject of the mortgage was fatal to the validity and efficacy of the
extrajudicial foreclosure, and warranted the invalidation of the entire
proceedings conducted by the sheriff. (Baysa vs. Plantilla, G.R. No. 159271, July
13, 2015) - LPB
f. Equity of redemption versus right of redemption
Right of redemption
Right of redemption is the prerogative to re-acquire the mortgaged property after
registration of the foreclosure sale exists only in extrajudicial foreclosure of
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mortgage. No such right is recognized in judicial foreclosure except only when

mortgagee is the PNB or a bank or banking institution.
In extrajudicial foreclosure, mortgagor may exercise right of redemption within 1
year from registration of sheriffs certificate of foreclosure sale.
Equity of redemption
Equity of redemption in judicial foreclosure of mortgage is the right to pay the
court or the judgment obligee the amount of the judgment within a period of not
less than 90 days nor more than 120 days from entry of judgment or even before
confirmation of sale by the court. After such order of confirmation, no redemption
can be effected. Limpin vs. IAC, 166 SCRA 87 (1988)
In default of such payment, the property shall be sold at public auction to satisfy
the judgment (Rule 68, Sec, 2).
Equity of Redemption Right of Redemption
The right of defendant mortgagor to A right granted to a debtor

extinguish the mortgage and retain mortgagor, his successor in interest or
ownership of the property by paying the any judicial creditor or judgment
debt within 90 to 120 days after the entry creditor or any person having a lien
of judgment or even after the on the property subsequent to the
foreclosure sale but prior to mortgage or deed of trust under
confirmation. which the property is sold to
repurchase the property within one
year even after the confirmation of
the sale and even after the
registration of the certificate of
foreclosure sale.
May be exercised even after the There is no right of redemption in a

foreclosure sale provided it is made judicial foreclosure of mortgage
before the sale is confirmed by order of under Rule 68. This right of redemption
the court. exists only in extrajudicial foreclosures
where there is always a right of
redemption within one year from the
date of sale(Sec. 3, Act 3135) , but
interpreted by the Court to mean one
year from the registration of the sale.
May also exist in favor or other General rule: In judicial foreclosures

encumbrances. If subsequent lien there is only an equity of redemption
holders are not impleaded as parties in which can be exercised prior to the
the foreclosure suit, the judgment in confirmation of the foreclosure sale.
favor of the foreclosing mortgagee This means that after the foreclosure
does not bind the other lien holders. In sale but before its confirmation, the
this case, their equity of redemption mortgagor may exercise his right of
remains unforeclosed. A separate pay the proceeds of the sale and
foreclosure proceeding has to be prevent the confirmation of the sale.
brought against them to require them to
redeem from the first mortgagee or from
the party acquiring the title to the
mortgaged property.
If not by banks, the mortgagors merely Exception: there is a right of

have an equity of redemption, which is redemption if the foreclosure is in
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simply their right, as mortgagor, to favor of banks as mortgagees,

extinguish the mortgage and retain whether the foreclosure be judicial or
ownership of the property by paying the extrajudicial. This right of redemption
secured debt prior to the confirmation is explicitly provided in Sec. 47 of the
of the foreclosure sale. General Banking Law of 2000. While
the law mentions the redemption
period to be one year counted from
the date of registration of the
certificate in the Registry of Property
Requisites for valid redemption in extrajudicial foreclosure

1.) Redemption must be made within 12 months from registration of
sale in the Register of Deeds.
2.) Payment of purchase price plus 1% interest per month, together
with assessments or taxes thereon, if any, paid by the purchaser after
the sale with the same rate of interests.
3.) Written notice of the redemption must be served on the officer
who made the sale and a duplicate filed with the Register of Deeds
(Rosales vs. Yboa, 120 SCRA 869 [1983]).
Deficiency judgment
Deficiency judgment may be awarded in favor of the plaintiff against the
mortgagor, if the proceeds of the sale of the property are not sufficient to satisfy
the judgment. Motion for deficiency judgment must be filled after then sale, when
the deficiency is known.
What is the prescriptive period to file action for deficiency in extrajudicial
foreclosure of real estate mortgage?
Ten (10) years (Arts. 1144 and 1142, Civil Code)
Writ of possession in extrajudicial foreclosure of mortgage
De Vera vs. Agloro, 448 SCRA 203 (2005)
The purchaser at public auction, who has a right to possession that extends after
the expiration of the redemption period, becomes the absolute owner of the
property when no redemption is made
After the 1 year period, the mortgagor loses all interest over it. The bond required
under Sec. 7 of RA 3135 is no longer needed. Possession becomes an absolute
right of the purchaser as confirmed owner. The purchaser can demand possession
at any time following the consolidation of ownership in his name and the issuance
to him of a new TCT.
After the consolidation of title in the buyers name for failure of the mortgagor to
redeem the property, the writ of possession becomes a matter of right. Its issuance
to a purchaser in an extrajudicial foreclosure is a merely ministerial function.
.An ex parte petition for issuance of a possessory writ under Sec. 7 of Act 3135 is
not, strictly speaking, a judicial process as contemplated in Art. 433 of the Civil
Code it is a non-litigious proceeding authorized in an extrajudicial foreclosure of
mortgage. It is brought for the benefit of one party only, and without notice to, or
consent by any person adversely interested. No need to notify the mortgagors
since they had already lost all their interests in the property when they failed to
redeem the same.
Even if the mortgagor appeals an order denying a petition assailing the writ of
possession granted to the buyer and the sale at public auction, the buyer remains
in possession of the property pending resolution of the appeal. It is the ministerial
duty of the court to issue writ of possession in favor of the purchaser in a
foreclosure sale. The trial court has no discretion on the matter.
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A writ of possession is a writ of execution employed to enforce a judgment to

recover the possession of land. It commands the sheriff to enter the land and give
possession of it to the person entitled under the judgment.
A writ of possession may be issued under the following instances: (1) in land
registration proceedings under Section 17 of Act 496; (2) in a judicial foreclosure,
provided the debtor is in possession of the mortgaged realty and no third person,
not a party to the foreclosure suit, had intervened; (3) in an extrajudicial
foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as
amended by Act No. 4118; and (4) in execution sales (last paragraph of Section
33, Rule 39 of the Rules of Court).
The present case falls under the third instance. Under Section 7 of Act No. 3135,
as amended by Act No. 4118, a writ of possession may be issued either (1) within
the one-year redemption period, upon the filing of a bond, or (2) after the lapse
of the redemption period, without need of a bond. (PNB vs. Sanao Marketing
Corporation, G.R. No. 153951, July 29, 2005)
A pending action for annulment of mortgage or foreclosure sale does not stay the
issuance of the writ of possession. The trial court, where the application for a writ
of possession is filed, does not need to look into the validity of the mortgage or
the manner of its foreclosure. The purchaser is entitled to a writ of possession
without prejudice to the outcome of the pending annulment case. To stress the
ministerial character of the writ of possession, the Court has disallowed injunction
to prohibit its issuance, just as it has held that its issuance may not be stayed by a
pending action for annulment of mortgage or the foreclosure itself.
Until the foreclosure sale of the property in question is annulled by a court of
competent jurisdiction, the issuance of a writ of possession remains the ministerial
duty of the trial court. The same is true with its implementation; otherwise, the writ
will be a useless paper judgment a result inimical to the mandate of Act No. 3135
to vest possession in the purchaser immediately. (Sps. Gatuslao vs. Yanson, G.R.
No. 191540, January 21, 2015)
Where the extra-judicially foreclosed real property is in the possession of a third
party who is holding the same adversely to the judgment debtor or mortgagor,
the RTCs duty to issue a writ of possession in favor of the purchaser of said real
property ceases to be ministerial and, as such, may no longer proceed ex parte.
In such a case, the trial court must order a hearing to determine the nature of the
adverse possession. For this exception to apply, however, it is not enough that the
property is in the possession of a third party, the property must also be held by the
third party ADVERSELY to the judgment debtor or mortgagor, such as a co-owner,
agricultural tenant or usufructuary. (Sps. Gatuslao vs. Yanson, G.R. No. 191540,
January 21, 2015)
The obligation of the court to issue an ex parte writ of possession in favor of the
purchaser in an extrajudicial foreclosure sale ceases to be ministerial once there
is a third party in possession of the property who has an adverse claim to the
mortgagor.
However, the third-party claim in this case was not presented at the onset of
litigation. In this case, petitioners opposed the writ of possession because of the
pendency of a civil case wherein they sought the annulment of the mortgage
and the foreclosure proceedings and not as vendees to an alleged sale of the
land in dispute. Petitioners raised for the first time their theory that they are third
parties (vendees) holding the property adversely to the mortgagor only after the
trial court had already granted a writ of possession. Worse, petitioners failed to
adduce evidence of the purported sale in their favor. (Cahilig &Siel vs. Terencio
& Mercantile Credit Resources Corp., G.R. No. 164470; November 28, 2011)
Respondent may rightfully take possession of the subject properties through a writ
of possession, even if he was not the actual buyer thereof at the public auction
sale. Respondent, as a transferee or successor-in interest of PNB by virtue of the
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contract of sale between them, is considered to have stepped into the shoes of
PNB. As such, he is necessarily entitled to avail of the provisions of Section 7 of Act
No. 3135, as amended, as if he is PNB. One of the rights that PNB acquired as
purchaser of the subject properties at the public auction sale, which it could
validly convey by way of its subsequent sale of the same to respondent, is the
availment of a writ of possession. (Sps. Gatuslao vs. Yanson, G.R. No. 191540,
January 21, 2015)
The remedy of a party from the trial courts order granting the issuance of a writ of
possession is to file a petition to set aside the sale and cancel the writ of
possession, and the aggrieved party may then appeal from the order denying or
granting said petition (Sec.8, Act 3135). When a writ of possession had already
been issued as in this case, the proper remedy is an appeal and not a petition for
certiorari. To be sure, the trial courts order granting the writ of possession is final.
The soundness of the order granting the writ of possession is a matter of judgment,
with respect to which the remedy of the party aggrieved is ordinary appeal. As
respondent availed of the wrong remedy, the appellate court erred in not
dismissing outright the petition for certiorari. (Producers Bank of the Philippines vs.
Excelsa Industries, Inc, G.R. No. 173820, April 16, 2012)
11. Partition (Rule 69)
a. Who may file complaint; who should be made defendants
Rule 69, Section 1. Complaint in action for partition of real estate.
A person having the right to compel the partition of real estate may do so as
provided in this Rule, setting forth in his complaint the nature and extent of his title
and an adequate description of the real estate of which partition is demanded
and joining as defendants all other persons interested in the property.
b. Matters to allege in the complaint for partition
Contents of the Complaint:
1.) Nature and extent of his title;
2.) Adequate description of the real estate of which partition is
demanded; and
3.) Defendants and all other persons interested in the property are
joined. (Rules of Court, Rule 69, Section 1)
c. Two (2) stages in every action for partition
Two Stages of the Action
1.) First Stage Determination of the propriety of partition
This involves a determination of whether the subject property is
owned in common and whether all the co-owners are made parties
in the case. All co-owners are indispensable parties. (Rules of Court,
Rule 3, Section 7. Compulsory joinder of indispensable parties. Parties
in interest without whom no final determination can be had of an
action shall be joined either as plaintiffs or defendants) The order may
also require an accounting of rents and profits recovered by the
defendant. This order of partition and accounting is appealable.
(Miranda vs. Court of Appeals, No. L-33007, June 18, 1976, 71 SCRA
295) If not appealed, then the parties may partition the common
property in the way they want. If they cannot agree, then the case
goes into the second stage. However, the order of accounting may
in the meantime be executed. (De Mesa vs. Court of Appeals, G.R.
No. 109387, April 25, 1994, 231 SCRA 773). Appeal period 30 days.
2.) Second Stage - The actual partitioning of the subject property
If the parties are unable to agree upon the partition, the partition
shall be done for the parties with the assistance of not more than
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three (3) commissioners. (Municipality of Biñan vs. Garcia, GR No.

69260, December 22, 1989) This is also a complete proceeding and
the order or decision is appealable. Appeal period 15 days
d. Order of partition and partition by agreement
Rule 69, Sec. 2. Order for partition, and partition by agreement thereunder.
If after the trial the court finds that the plaintiff has the right thereto, it shall order
the partition of the real estate among all the parties in interest. Thereupon the
parties may, if they are able to agree, make the partition among themselves by
proper instruments of conveyance, and the court shall confirm the partition so
agreed upon by all the parties, and such partition, together with the order of the
court confirming the same, shall be recorded in the registry of deeds of the place
in which the property is situated.
e. Partition by commissioners; Appointment of commissioners, Commissioners
report; Court action upon commissioners report
f. Judgment and its effects
Rule 69, Sec. 11. The judgment and its effect; copy to be recorded in registry of
deeds.
If actual partition of property is made, the judgment shall state definitely, by metes
and bounds and adequate description, the particular portion of the real estate
assigned to each party, and the effect of the judgment shall be to vest in each
party to the action in severalty the portion of the real estate assigned to him. If
the whole property is assigned to one of the parties upon his paying to the others
the sum or sums ordered by the court, the judgment shall state the fact of such
payment and of the assignment of the real estate to the party making the
payment, and the effect of the judgment shall be to vest in the party making the
payment the whole of the real estate free from any interest on the part of the
other parties to the action. If the property is sold and the sale confirmed by the
court, the judgment shall state the name of the purchaser or purchasers and a
definite description of the parcels of real estate sold to each purchaser, and the
effect of the judgment shall be to vest the real estate in the purchaser or
purchasers making the payment or payments, free from the claims of any of the
parties to the action. A certified copy of the judgment shall in either case be
recorded in the registry of deeds of the place in which the real estate is situated,
and the expenses of such recording shall be taxed as part of the costs of the
action.
g. Partition of personal property

Rule 69, Sec. 13. Partition of personal property.
The provisions of this Rule shall apply to partitions of estates composed of personal
property, or of both real and personal property, in so far as the same may be
applicable.
h. Prescription of action
Action for partition is imprescriptible for as long as the co-owners expressly or
impliedly recognize the co-ownership. (Heirs of Bartolome Infante and Juliana
Infante vs. Court of Appeals, G.R. No. 77202 June 22, 1988) However, if a co-owner
repudiates the co-ownership and makes known such repudiation to the other co-
owners, then partition is no longer a proper remedy of the aggrieved co-owner.
S/he should filed an accion reivindicatoria which is prescriptible. (Heirs of Catalino
Jardin vs. Heirs of Sixto Hallasgo, G.R. No. L-55225, September 30, 1982)
PARTITION
Define partition
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Partition is the division between two or more persons of real or personal property
which they own as co-partners, joint tenants or tenants in common, effected by
the setting apart of such interests so that they may enjoy and possess it severally.
Purpose is to put an end to the common tenancy of the land or co-ownership.
Presupposes that the thing to be divided is owned in common. It is immaterial in
whose name the properties were declared for taxation purposes for it is presumed
beforehand that the parties to the partition admit the fact of co-ownership and
now want to effect a separation of interest.
What are the issues in an action for partition?
Action for partition raises two issues:
1. whether plaintiff is co-owner of property
2. assuming plaintiff is co-owner, how to divide the property between
plaintiff and defendant or among the co-owners
Who are indispensable parties in partition?
All the co-owners
Who may effect partition?
Partition of the estate of a decedent may only be effected by
(1) the heirs themselves extra-judicially,
(2) the court in an ordinary action for partition,
(3) testator himself, and
(4) the third person designated by the testator
Partition of the estate may not be ordered in an action for quieting of title
(Alejandrino vs. CA, 295 SCRA 536 [1998])
To accord with the nature of the remedy of judicial partition, there are two stages
defined under Rule 69. The first relates to the determination of the rights of the
parties to the property held in common. The second concerns the physical
segregation of each party's just share in the property held in common. The second
stage need not be gone into should the parties agree on the physical partition.
(Oribello vs. Oribello, G.R. No. 163504, August 5, 2015) - LPB
12. Forcible Entry and Unlawful Detainer (Rule 70)
Distinguish forcible entry (FE) from unlawful detainer (UD)
a. Nature of possession. In FE, the defendants possession is illegal from
the beginning. In UD, the defendants possession is legal at the
beginning but becomes illegal by reason of termination of the lessees
right over the property
b. Prior physical possession. In FE, the plaintiff is deprived of prior
physical possession through force, intimidation, threats, strategy or
stealth. In UD, prior physical possession by the plaintiff is not alleged
because the defendant withholds possession after the expiration of
his right to possess.
c. Demand. In FE, no demand to vacate is required by law before
filing of the action. In UD, demand is jurisdictional.
d. Computation of period. In FE, the one year period is counted from
actual entry into the land. In UD, the one year period is counted from
the last demand
Estoppel to question jurisdiction
Where the action for FEUD was filed with the RTC, but the defendant did not move
to dismiss on such ground, filed his answer and went to trial, and thereafter the
trial court rendered judgment, estoppel by laches has already set in and
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precludes the judgment from assailing the judgment on such ground (Velarma vs.
CA, 252 SCRA 406 [1996]).
Sufficiency of complaint for unlawful detainer
A simple allegation that the defendant is unlawfully withholding the property is
sufficient without necessarily employing the terminology of the law. In an unlawful
detainer case, the defendants possession was originally lawful but ceased to be
so by the expiration of his right to possess (Barba vs. CA, G.R. No. 126638, Feb. 6,
2002).
When there are several demands to vacate
In case several demands to vacate are made, the period is reckoned from the
date of the LAST DEMAND.
Possession by tolerance
When there is possession by tolerance, possession or detainer becomes illegal only
from the time that there is a DEMAND to vacate. The year for bringing the action
for illegal detainer should be counted only from such demand (Ballesteros vs.
Abion, G. R. No. 143661, Feb. 9, 2006).
When to count one-year period in forcible entry
The one year period within which to bring an action for forcible entry is generally
counted from the date of ACTUAL ENTRY on the land, except that when entry was
made thru stealth, the one year period should be counted from the time the
plaintiff made the demand to defendant to vacate the land upon learning of
such dispossession (Ballesterso vs. Abion, supra).
Stealth any secret, sly or clandestine act to avoid discovery and to gain entrance
into or remain within the residence of another without permission
(Ong vs. Parel, 355 SCRA 691 [2001]).
Effect of claim of ownership on MTC jurisdiction
Hilario vs. CA, 260 SCRA 420 (1996)
a. All forcible entry and unlawful detainer cases have to be tried pursuant to the
Revised Rule on Summary Procedure regardless of whether or not the issue of
ownership is alleged by a party.
b. Inferior courts retain jurisdiction over ejectment cases even if the question of
possession cannot be resolved without passing upon the issue of ownership
subject to the same caveat that the issue posed as to ownership could be
resolved by the court for the sole purpose of determining the issue of possession.
c. An adjudication made therein regarding the issue of ownership should be
regarded as merely PROVISIONAL and therefore would not bar or prejudice an
action between the same parties involving title to the land.
d. Jurisdiction over the subject matter is determined by the nature of the action
as alleged or pleaded in the complaint. Even where defendant alleges ownership
or title in his answer, the court will not be divested of jurisdiction. A contrary rule
would pave the way for defendant to trifle with the ejectment suit, which is
summary in nature, as he could easily defeat the same through the simple
expedient of asserting ownership.
Cases that do not affect ejectment suit
Wilmont Auto Supply vs. CA, 208 SCRA 108 (1992)
1. Injunction suits instituted in the RTC by defendants in ejectment
actions in the municipal trial courts or other courts of the first level do
not abate the latter; and neither do proceedings on consignation of
rentals.
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2. An accion publiciana does not suspend an ejectment suit against

the plaintiff in the former.
3. A writ of possession case where ownership is concededly the
principal issue before the Regional Trial Court does not preclude nor
bar the execution of the judgment in an unlawful detainer suit where
the only issue involved is the material possession or possession de
facto of the premises.
4. An action for quieting of title to property is not a bar to an
ejectment suit involving the same property.
5. Suits for specific performance with damages do not affect
ejectment actions (e.g., to compel renewal of a lease contract)
6. An action for reformation of instrument (e.g., from deed of
absolute sale to one sale with pacto de retro) does not suspend an
ejectment suit between the same parties.
7. An action for reconveyance of property or accion reivindicatoria
also has no effect on ejectment suits regarding the same property.
8. Suits for annulment of sale, or title, or document affecting property
operate to abate ejectment actions respecting the same property.
Effect of absence of title
Pajuyo vs. CA, 430 SCRA 492 (2004)
a. The absence of title over a contested lot is not a ground for the
courts to withhold relief from the parties in an ejectment case.
b. Ownership or the right to possess arising from ownership is not an
issue in an action for recovery of possession.
c. The parties cannot present evidence to prove ownership or right
to legal possession except to prove the nature of the possession
when necessary to resolve the issue of physical possession.
d. The underlying philosophy behind ejectment suits is to prevent
breach of the peace and criminal disorder and to compel the party
out of possession to respect and resort to the law alone to obtain
what he claims to be his. The party should not take the law into his
own hands.
e. Courts must resolve the issue of possession even if the parties to the
ejectment are SQUATTERS. Courts should not leave squatters to their
own devices in cases involving recovery of possession.
Any one of the co-owners may bring an action for ejectment
The law, Art. 487 of the Civil Code, allows a co-owner to bring an action for
ejectment, which covers all kinds of actions for the recovery of possession,
including forcible entry and unlawful detainer, without the necessity of joining all
the other co-owners as co-plaintiffs, because the suit is deemed to be instituted
for the benefit of all.
An attorney in fact of a co-owner can file the ejectment suit
Since Art. 487 authorizes any one of the co-owners to bring an action for
ejectment and the suit is deemed to be for the benefit of all, without the co-
owners actually giving consent to the suit, it follows that an attorney-in-fact of the
plaintiff co-owner does not need authority from al the co-owners.
The execution of the certification against forum shopping by the attorney-in-fact
is proper
The execution of the certification against forum shopping by the attorney-in-fact
is not a violation of the requirement that the parties must personally sign the same.
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The AIF, who has authority to file the same, and who actually filed the complaint
as the representative of the plaintiff co-owner, pursuant to a SPA, is a PARTY to
the ejectment suit. In fact, Sec. 1, Rule 70 includes the representative of the owner
in an ejectment suit as one of the parties authorized to institute the proceedings.
a. Definitions and Distinction
What are the kinds of actions for the recovery of possession of real property?
1. Accion interdictal - summary action for forcible entry and unlawful
detainer which is brought within one (1) year from dispossession. MTC
has exclusive jurisdiction.
2. Accion publiciana - plenary action to recover the right of
possession when dispossession has lasted for more than one year or
when dispossession was effected by means other than those
mentioned in Rule 70, Sec. 1.
3. Accion reivindicatoria - action to recover ownership, including the
recovery of possession.
Forcible Entry Unlawful Detainer
The possession of the defendant is The possession of the defendant is lawful

unlawful from the beginning; issue from the beginning becomes illegal by
is which party has prior de facto reason of the expiration or termination of his
possession; right to the possession of the property;
The law does not require previous Plaintiff must first make such demand which
demand for the defendant to is jurisdictional in nature;
vacate;
The plaintiff must prove that he The plaintiff need not have been in prior
was in prior physical possession of physical possession;
the premises until he was deprived
by the defendant; and
The one year period is generally The one-year period is counted from the
counted from the date of actual date of last demand.
entry on the property.
b. Distinguished from accion publiciana and accion reinvindicatoria
Accion Publiciana Accion Reinvindicatoria
A plenary ordinary civil action for the recovery An action for the recovery of
of the better right of possession (juridical the exercise of ownership,
possession) , must be filed after the expiration particularly recovery of
of one year from the accrual of the cause of possession as an attribute or
action or from the unlawful withholding of incident of ownership;
possession of the realty. In other words, if at the
time of the filing of the complaint more than
one year had elapsed since defendant had
turned plaintiff out of possession or defendants
possession had become illegal, the action will
be not one of forcible entry or unlawful
detainer but anaccion publiciana (Valdez vs,
CA, GR 132424, May 2, 2006).
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The basis of the recovery of possession is the The basis for the recovery of
plaintiffs real right of possession or jus possession is ownership itself.
possessionis, which is the right to the possession
of the real property independent of ownership.
c. How to determine jurisdiction in accion publiciana and accion reinvindicatoria

Jurisdiction is determined by the assessed value of the property.
Sec. 22 of BP 129 as amended by R.A. No. 7691 (where the assessed value of the
real property does not exceed P20,000.00 or P50,000.00 in Metro Manila) grants
the MTC exclusive jurisdiction over subject case. The nature of an action is
determined not by what is stated in the caption of the complaint but its
allegations and the reliefs prayed for. Where the ultimate objective of the plaintiff
is to obtain title to real property, it should be filed in the proper court having
jurisdiction over the assessed value of the property subject thereof. (BF Citiland
Corporation vs. Marylin B. Otake, G.R. No. 173351, July 29, 2010; Spouses
Alcantara vs. Nido, G.R. No. 165133, April 19, 2010; Bernardo vs. Villegas, G.R. No.
183357, March 15, 2010; Barangay Piapi vs. Talip, G.R. No. 138248, September 7,
2005; Quinagoran vs. Court of Appeals, G.R. No. 155179, August 24, 2007)
The actions envisaged in the aforequoted provisions (Secs. 19 and 33. BP 129, as
amended by RA 7691) are accion publiciana and reivindicatoria. To determine
which court has jurisdiction over the action, the complaint must allege the
assessed value of the real property subject of the complaint or the interest
thereon (Laresma vs. Abellana, G.R. No. 140973, November 11, 2004, 442 SCRA
156)
d. Who may institute the action and when; against whom the action may be
maintained
Rule 70, 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 land or 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.
What is the period for bringing an action for forcible entry?
Within 1 year from such unlawful deprivation (Rule 70, Sec. 1).
Where the unlawful deprivation is by stealth, from the time the plaintiff came to
know of the unlawful deprivation (City of Manila vs. Garcia, L-26053, February 21,
1967)
e. Pleadings allowed
Rule 70, Sec. 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.
f. Action on the complaint
Rule 70, Sec. 5. Action on complaint.
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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.
g. When demand is necessary
Is prior demand necessary in an action for forcible entry?
No. Prior demand is not necessary in an action for forcible entry (Rule 70, Sec. 1)
Is prior demand necessary in an action for unlawful detainer?
1. No, in the first kind of unlawful detainer, a summary proceeding
filed by a lessor, vendor, vendee, or other person against whom the
possession of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession, by virtue of
any contract, express or implied. (Rule 70, Sec. 1). Prior demand is not
necessary because the defendants possession ipso facto becomes
unlawful after the expiration or termination of the right to hold
possession.
2 Yes, in the second kind of unlawful detainer, a summary
proceeding filed by the lessor to eject the lessee after the latter has
failed to pay or to comply with the conditions of the lease (Rule 70,
Sec. 2). Demand is necessary because the lessors possession does not
ipso facto become unlawful if he fails to pay or comply with the
conditions of the lease. Demand is necessary to put the lessee in
default.
In the second kind of unlawful detainer, how should demand be worded?
The lessor should make a demand for the lessee to pay the rent or comply with
the conditions of the lease AND vacate. Where the lessor served a written notice
upon the lessee to pay the rent or vacate the premises, he gave the lessee an
alternative of either paying the rent or vacating. When the lessee then elected to
stay after such demand, he became merely a debtor for the unpaid rental and
cannot be ejected until he defaults in payment and a demand is made upon
him. (Vda. de Murga vs. Chan, 25 SCRA 441).
Period to file action for unlawful detainer
Within 1 year after the unlawful withholding of possession.
1. Upon the expiration of the lease, the lessee is considered to be
unlawfully withholding the property. Hence, the right of action for
unlawful detainer immediately arises (Panganiban vs. Shell Petroleum
Corp., 395 SCRA 624)
2. In case of failure to pay or comply with the conditions of the lease,
the action shall be brought within one year from demand or the
posting of notice (if no person is found in the premises) , as provided
in Rule 70, Sec. 2)
h. Preliminary injunction and preliminary mandatory injunction
Rule 70, Sec. 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.
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i. Resolving defense of ownership

Rule 70, Sec. 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.
Is the judgment of the MTC in ejectment cases immediately executory?
The judgment of the MTC against the plaintiff is not immediately executory
pending appeal.
The judgment of the MTC against the defendant is immediately executory
pending appeal. However, the defendant may stay execution:
1. By perfecting an APPEAL. Appeal is perfected by filing a notice of
appeal and paying the required appeal and other lawful fees within
fifteen (15) days from notice of the judgment.
2. By filing a SUPERSEDEAS BOND to answer for what has been
adjudged in the judgment. The bond is to answer for the rents,
damages and costs accruing down to the judgment of the MTC
appealed from, as determined in the judgment, and
3. By DEPOSITING from time to time with the RTC the monthly rental
as adjudicated or the reasonable value of the use and occupation
of the property.
(Rule 70, Sec. 19)
What is the effect of failure of the defendant to make the periodic deposit?
The RTC, 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. (Rule 70, Sec. 19).
j. How to stay the immediate execution of judgment
To stay the immediate execution of the judgment in an ejectment case, the
defendant must perfect an appeal, file a supersedeas bond, and periodically
deposit the rentals becoming due during the pendency of the appeal. Otherwise,
the writ of execution will issue upon motion of the plaintiff. (Acbang vs. Luczon,
G.R. No. 164246, January 15, 2014) - LPB
Is the judgment of the RTC immediately executory?
Yes, under Rule 70, Sec. 21.
Rule 70, Sec. 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.
Section 21, Rule 70 provides that the judgment of the RTC in ejectment cases
appealed to it shall be immediately executory and can be enforced despite the
perfection of an appeal to a higher court. To avoid such immediate execution,
the defendant may appeal said judgment to the CA and therein apply for a writ
of preliminary injunction. In this case, the decisions of the MTCC, of the RTC, and
of the CA, unanimously recognized the right of the ATO to possession of the
property and the corresponding obligation of Miaque to immediately vacate the
subject premises. This means that the MTCC, the RTC, and the Court of Appeals
all ruled that Miaque does not have any right to continue in possession of the said
premises. It is therefore puzzling how the Court of Appeals justified its issuance of
the writ of preliminary injunction with the sweeping statement that Miaque
!*'"
"
"appears to have a clear legal right to hold on to the premises leased by him from
ATO at least until such time when he shall have been duly ejected therefrom by
a writ of execution of judgment caused to be issued by the MTCC. (Air
Transportation Office (ATO) vs. Hon. Court Of Appeals (Nineteenth Division) and
Bernie G. Miaque, G.R. No. 173616, June 25, 2014)
k. Summary procedure, prohibited pleadings
All ejectment cases are covered by the summary procedure regardless of
whether they involve questions of ownership. .
The adjudication of the case is done on the basis of affidavits and position papers.
The court is no longer allowed to hold hearings to receive testimonial evidence.
Should the court find it necessary to clarify certain issues, it may require the parties
instead to submit affidavits or other evidence. The proceeding is required to be
summary so as to promote the speedy disposition of ejectment cases.
In line with the summary nature of the action for forcible entry or unlawful
detainer, the filing of the following pleadings is prohibited:
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. Section 12 provides that cases requiring reply for conciliation,
whether there is no showing of compliance with such requirement,
shall be dismissed without prejudice, and may be reviewed only after
that requirement shall have been complied with.
2. Motion for 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. Intervention.
***Against whom judgment binding
An ejectment case is an action in personam since it merely seeks to enforce
personal liability against the defendant.
However, a judgment in an ejectment suit is binding not only on the defendants
but also against those not made parties thereto, if they are:
(1) trespassers, squatters or agents of the defendant fraudulently
occupying the property to frustrate the judgment
(2) guests or other occupants of the premises with the permission of
the defendant
(3) transferees pendente lite
(4) co-lessee
(5) members of the family, relatives and other privies of the
defendant (Sunflower Neighborhood Association vs. Court of
!*("
"
Appeals, G.R. No. 136274, September 3, 2003; Oro Cam Enterprises,

Inc. vs. CA, G.R. No. 128743, November. 29. 1999).
When a non-party is not included among the exceptions to the general rule , he
is not bound by the judgment in the ejectment case. (Sps. Stillgrove vs. Sabas,
A.M. No. P-06-2257, November 29, 2006)
RTC jurisdiction over a counterclaim in an appeal from a decision in an unlawful
detainer case
Where the defendant on appeal from a decision in an unlawful detainer case
files an amended pleading in which he raises a counterclaim for P250,000 as
moral and exemplary damages for the filing by the plaintiff of a baseless suit, the
RTC has no jurisdiction over the same. A counterclaim should be within the
jurisdiction of the RTC both raises to nature and amount. The counterclaim of
P250,000 is below the jurisdictional amount for the RTC. The RTC
is trying the case in the exercise of its appellate jurisdiction, rather than original
jurisdiction. Thus the exception in Rule 6, Sec. 7 that in the RTC a counterclaim shall
be considered compulsory regardless of the amount does not apply.
13. Contempt (Rule 71)
a. Kinds of contempt
Definition.
Contempt of court is a defiance of the authority, justice or dignity of the court,
such conduct as tends to bring the authority and administration of the law into
disrespect of, to interfere with, or prejudice parties litigant or their witnesses during
litigation. It is defined as a disobedience to the court by setting up an opposition
to its authority, justice and dignity. It signifies not only a willful disregard or
disobedience to the courts order but such conduct as tends to bring the authority
of the court and the administration of law into disrefute or in some manner to
impede the due administration of justice. (Halili v. Court of Industrial Relations, No.
L-24864, April 30, 1985, 136 SCRA 112)
What are the kinds of contempt?
Civil Contempt Criminal Contempt
It is the failure to do something ordered It is a conduct directed against the

to be done by a court or a judge for authority and dignity of the court or a
the benefit of the opposing party judge acting judicially; it is an
therein and is therefore and offense obstructing the administration of
against the party in whose behalf the justice which tends to bring the court
violated order was made; into disrepute or disrespect;
The purpose is to compensate for the The purpose is to punish, to vindicate

benefit of a party; the authority of the court and protect
its outraged dignity;
The rules of procedure governing Should be conducted in accordance

contempt proceedings or criminal with the principles and rules
prosecutions ordinarily are applicable to criminal cases, insofar as
such procedure is consistent with the
!*)"
"
inapplicable to civil contempt summary nature of contempt

proceedings. proceedings.
Direct Contempt Indirect Contempt
In general, committed in the presence It is not committed in the presence of

of or so near the court or judge as to the court, but done at a distance
obstruct or interrupt the proceedings which tends to belittle, degrade,
before it; obstruct or embarrass the court and
justice;
Acts constituting direct contempt are: Acts constituting indirect contempt

a) Misbehavior in the presence of or so are:
near the court as to obstruct or (a) Misbehavior as an officer of a court
interrupt the proceedings before it; in the performance of his official duties
or in his official transactions;
b) Disrespect toward the court;
c) Offensive personalities towards (b) Disobedience of or resistance to a
lawful writ, process, order, or judgment
others;
of a court, including the act of a
d) Refusal to be sworn as a witness or person who, after being dispossessed
to answer as a witness; or ejected from any real property by
e) Refusal to subscribe an affidavit or the judgment or process of any court
deposition when lawfully required to of competent jurisdiction, enters or
do so(Sec. 1) ; attempts or induces another to enter
into or upon such real property, for the
f) Acts of a party or a counsel which purpose of executing acts of
constitute willful and deliberate forum ownership or possession, or in any
shopping(Sec. 1, Rule 7) ; manner disturbs the possession given
g) Unfounded accusations or to the person adjudged to be entitled
allegations or words in a pleading thereto;
tending to embarrass the court or to (c) Any abuse of or any unlawful
bring it into disrepute(Re: Letter dated interference with the processes or
21 Feb. 2005 of Atty. Noel Sorreda, 464 proceedings of a court not constituting
SCRA 32) ; direct contempt under section 1 of this
Rule;
(d) Any improper conduct tending,
directly or indirectly, to impede,
obstruct, or degrade the
administration of justice;
(e) Assuming to be an attorney or an
officer of a court, and acting as such
without authority;
(f) Failure to obey a subpoena duly
served;
(g) The rescue, or attempted rescue, of
a person or property in the custody of
an officer by virtue of an order or
process of a court held by him(Sec. 3)
;
1. Direct Contempt - punished summarily, direct contempt consists of

misbehavior in the presence of or so near a judge as to interrupt or
obstruct the proceedings before the court or the administration of
!**"
"
justice, including disrespect toward the judge, offensive personalities

toward others, or refusal to be sworn or to answer as a witness, or to
subscribe to an affidavit or deposition when lawfully required to do
so (Guerrero vs. Villamor, 189 SCRA 355 [1989]).
2. Indirect Contempt - indirect or constructive contempt is one
committed away from the court involving disobedience or resistance
to a lawful writ, process, order, judgment or command of the court,
or tending to belittle, degrade, obstruct, interrupt or embarrass the
court (Delima vs. Gallardo, 77 SCRA 286 [1977]).
3. Civil Contempt- the failure to do something ordered by the court
which is for the benefit of a party.
4. Criminal Contempt- any conduct directed against the authority or
dignity of the court.
Two (2) kinds of Contempt (manner of commission)
1) Direct contempt which may be punished summarily under Section
1of Rule 71. (Section 1. Direct contempt punished summarily. - A
person guilty of misbehavior in the presence of or so near a court as
to obstruct or interrupt the proceedings before the same, including
disrespect toward the court, offensive personalities toward others, or
refusal to be sworn or to answer as a witness, or to subscribe an
affidavit or deposition when lawfully required to do so, may be
summarily adjudged in contempt by such court. .)
2) Indirect contempt which may be punished only after written
charge and due hearing under Section 3 of Rule 71. (Section 3.
Indirect contempt to be punished after charge and hearing. After a
charge in writing has been filed, and an opportunity given to the
respondent to comment thereon within such period as may be fixed
by the court and to be heard by himself or counsel)
Two (2) Aspects of Contempt (nature)
1) Civil Contempt is the failure to do something ordered to be done
by a court or a judge for the benefit of the opposing party therein.
(People v. Godoy/ Judge Eustaquio Z. Gacott, Jr. vs. Mauricio
Reynoso, Jr. and Eva P. Ponce De Leon G.R. Nos. 115908-09, March
29, 1995, 243 SCRA 64) It is an offense against the party in whose
behalf the violated order is made. Intent in committing the contempt
is immaterial. It is instituted by an aggrieved party, or his successor,
or someone who has a pecuniary interest in the right to be protected.
(People v. Godoy/ Judge Eustaquio Z. Gacott, Jr. vs. Mauricio
Reynoso, Jr. and Eva P. Ponce De Leon, G.R. Nos. 115908-09, March
29, 1995, 243 SCRA 64)
2) Criminal Contempt is conduct directed against the authority and
dignity of a court or of a judge, as in unlawfully assailing or
discrediting the authority and dignity of a court or a judge or in doing
a forbidden act. (People v. Godoy/ Judge Eustaquio Z. Gacott, Jr.
vs. Mauricio Reynoso, Jr. and Eva P. Ponce De Leon, G.R. Nos. 115908-
09, March 29, 1995, 243 SCRA 64) It is an offense against organized
society and is held to be an offense against public justice. Intent is a
necessary element in criminal contempt. It is generally the State who
is the real prosecutor. (People v. Godoy/ Judge Eustaquio Z. Gacott,
Jr. vs. Mauricio Reynoso, Jr. and Eva P. Ponce De Leon, G.R. Nos.
115908-09, March 29, 1995, 243 SCRA 64)
Note: A criminal contempt proceeding is in the nature of a criminal or quasi-
criminal actions and, therefore, punitive in nature. A civil contempt proceeding is
remedial and civil in nature.
#++"
"
b. Purpose and nature of each

See above
Is a charge and hearing required before a person may be punished for direct
contempt?
No. A person may be summarily adjudged in contempt and punished by the
court. (Rule 71, Sec. 1)
c. Remedy against direct contempt; penalty
Rule 71, Sec. 1. Contempt punished summarily. A person guilty of misbehavior in
the presence of or so near a court as to obstruct or interrupt the proceedings
before the same, including disrespect toward the court, offensive personalities
toward others, or refusal to be sworn or to answer as a witness, or to subscribe an
affidavit or deposition when lawfully required to do so, may be summarily
adjudged in contempt by such court and punished by a
(a) FINE not exceeding two thousand pesos (P2,000.00) or
IMPRISONMENT not exceeding ten (10) days, or both, if it be a
Regional Trial Court or a court of equivalent or higher rank, or by
(b) FINE not exceeding two hundred pesos (P200.00) or
IMPRISONMENT not exceeding one (1) day, or both, if it be a lower
court.
He may not appeal from the judgment. The remedy is CERTIORARI OR
PROHIBITION under Rule 65 on the ground of grave abuse of discretion or lack of
jurisdiction on the part of the judge.
Execution of the judgment shall be suspended if he files a BOND fixed by the court
conditioned that he will ABIDE BY AND PERFORM the judgment should the petition
be decided against him (Rule 71, Sec. 2)
d. Remedy against indirect contempt; penalty
Rule 71, Sec. 7. Punishment for indirect contempt.
(a) If the respondent is adjudged guilty of indirect contempt
committed against a Regional Trial Court or a court of equivalent or
higher rank, he may be punished by a FINE not exceeding thirty
thousand pesos (P30,000.00) or IMPRISONMENT not exceeding six (6)
months, or both.
(b) If he is adjudged guilty of contempt committed against a lower
court, he may be punished by a FINE not exceeding five thousand
pesos (P5,000.00) or IMPRISONMENT not exceeding one (1) month, or
both.
(c) If the contempt consists in the violation of a writ of injunction,
temporary restraining order or status quo order, he may also be
ordered to make complete restitution to the party injured by such
violation of the property involved or such amount as may be alleged
and proved.
Rule 71, Sec. 11. Review of judgment or final order; bond for stay. The judgment or
final order of a court in a case of indirect contempt may be APPEALED to the
proper court as in criminal cases.
But execution of the judgment or final order shall not be suspended until a BOND
is filed by the person adjudged in contempt, in an amount fixed by the court from
which the appeal is taken, conditioned that if the appeal be decided against
him he will ABIDE BY AND PERFORM the judgment or final order.
e. How contempt proceedings are commenced
Rule 71, Sec. 4. How proceedings commenced.
#+!"
"
Proceedings for indirect contempt may be initiated motu proprio by the court
against which the contempt was committed by an order or any other formal
charge requiring the respondent to show cause why he should not be punished
for contempt.
In all other cases, charges for indirect contempt shall be commenced by a
verified petition with supporting particulars and certified true copies of
documents or papers involved therein, and upon full compliance with the
requirements for filing initiatory pleadings for civil actions in the court concerned.
If the contempt charges arose out of or are related to a principal action pending
in the court, the petition for contempt shall allege that fact but said petition shall
be docketed, heard and decided separately, unless the court in its discretion
orders the consolidation of the contempt charge and the principal action for joint
hearing and decision.
What are the two ways to initiate indirect contempt?
1. SHOW CAUSE ORDER. Court issues order motu proprio or makes
formal charge requiring the respondent to show cause why he should
not be punished for contempt. The contempt contemplated is
usually in the nature of a criminal contempt.
2. VERIFIED PETITION. Party litigant or any aggrieved party files a
verified petition for that purpose, which should comply with the
requirements for filing initiatory pleadings in civil actions.
Before one may be convicted of indirect contempt, there must be compliance
with the following requisites: (a) a charge in writing to be filed; (b) an opportunity
for respondent to comment thereon within such period as may be fixed by the
court; and (c) an opportunity to be heard by himself or by counsel. (Tokio Marine
Malayan Insurance Company Inc. vs. Valdez, G.R. No. 150107, January 28, 2008).
f. Acts deemed punishable as indirect contempt
Grounds for Indirect Contempt:
1. Misbehavior of an officer of a court in the performance of his
official duties or in his official transactions.
2. Disobedience or resistance to a lawful writ, process, order or
judgment of a court, or any unauthorized intrusion to any real
property after being ejected;
3. Any abuse or any unlawful interference with the proceeding of a
court not constituting indirect contempt;
4. Any improper conduct tending, directly or indirectly to impede,
obstruct, or degrade the administration of justice;
5. Assuming to be an attorney or an officer of the court without
authority;
6. Failure to obey a subpoena duly served;
7. The rescue, or attempted rescue, of a person or property in the
custody of an officer. (Rule 71, Section 3.)
Grounds for Direct Contempt:
1. Disrespect toward the court;
2. Offensive personalities toward others
3. Refusal to be sworn or to answer as witness or to subscribe an
affidavit or deposition
4. Misbehavior in the presence of or so near a court as to obstruct or
interrupt the proceedings. (Rule 71, Section 1)
Where should the charge for indirect contempt be filed?
#+#"
"
1. If committed against a RTC or a court of equivalent or higher rank,

or against an officer appointed by it, the charge may be filed with
the RTC.
2. If committed against the MTC, the charge may be filed with the
RTC of the place in which the MTC is sitting; but the proceedings may
also be instituted in such MTC subject to appeal to the RTC of such
place in the same manner as provided in Rule 71, Sec. 11. (Rule 71,
Sec. 5)
3. If committed against a person or body exercising quasi-judicial
powers, the RTC of the
place wherein the contempt has been committed shall have jurisdiction over
such
charges. (Rule 71, Sec. 12)
g. When imprisonment shall be imposed
Rule 71, Sec. 8. Imprisonment until order obeyed.
When the contempt consists in the refusal or omission to do an act which is yet in
the power of the respondent to perform, he may be imprisoned by order of the
court concerned until he performs it.
N.B. This means that the penalty of imprisonment may exceed 6 months.
The dismissal of the indirect contempt charge amounts to an acquittal, which
effectively bars a second prosecution. Contempt is not a criminal offense.
However, a charge for contempt of court partakes of the nature of a criminal
action. Rules that govern criminal prosecutions strictly apply to a prosecution for
contempt. In fact, Section 11 of Rule 71of the Rules of Court provides that the
appeal in indirect contempt proceedings may be taken as in criminal cases. This
Court has held that an alleged contempt should be accorded the same rights as
that of an accused. Thus, the dismissal of the indirect contempt charge against
respondent amounts to an acquittal, which effectively bars a second
prosecution. (Digital Telecommunications Philippines, Inc. vs. Cantos, G.R. No.
180200, November 25, 2013)
h. Contempt against quasi-judicial bodies
Rule 71, Sec. 12. Contempt against quasi-judicial entities.
Unless otherwise provided by law, this Rule shall apply to contempt committed
against persons, entities, bodies or agencies exercising quasi-judicial functions, or
shall have suppletory effect to such rules as they may have adopted pursuant to
authority granted to them by law to punish for contempt. The Regional Trial Court
of the place wherein the contempt has been committed shall have jurisdiction
over such charges as may be filed therefor.
Quasi-judicial agencies that have the power to cite persons for indirect contempt
pursuant to Rule 71 of the Rules of Court can only do so by initiating them in the
proper Regional Trial Court. It is not within their jurisdiction and competence to
decide the indirect contempt cases. These matters are still within the province of
the Regional Trial Courts. In the present case, the indirect contempt charge was
filed, not with the Regional Trial Court, but with the PARAD, and it was the PARAD
that cited Mr. Lorayes with indirect contempt. (Land Bank of the Philippines vs.
Listana, G.R. No. 152611, August 5, 2003)
#+$"
"

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ChanRobles Professional Review, Inc.

1) Regional Trial Court

4. Once jurisdiction is acquired, court RETAINS it until the final

5. Doctrine of primary jurisdiction

Salva vs. CA, 304 SCRA 632 (1999)

f. Ombudsman in criminal and non-administrative disciplinary cases

1) All cases in which the constitutionality or validity of any

1) Petitions for certiorari, prohibition and mandamus relating to an

d. Appeals from the Office of the Ombudsman in administrative

a. Over appeals from the judgments, resolutions or orders of the

5. Regional Trial Courts

Petitions for habeas corpus and quo warranto (Sec. 5 [1],

interest, damages, attorney’s fees, litigation

salary grade 27 and higher. (As amended by Rep. Act

[a] Criminal cases where accused is under police

Code, as amended, which grants original and exclusive jurisdiction

Kinds of civil action (As to object)

3. act or omission of defendant which violates the legal right of

can file an ejectment complaint against B, C and D who are

Who are real parties in interest?

Real interest a present substantial interest, as distinguished from a mere

1. Real parties in interest (Rule 3, Sec. 2)

c. WITHOUT PREJUDICE to the rights of such necessary party

Individual suit, class suit, derivative suit

his legal representative or representatives. Failure of counsel to comply with this

d. Actions for the recovery of money, arising from a contract, express

1. Venue versus Jurisdiction

While court acquires no jurisdiction over person of defendant, valid

g. Complaint in intervention, answer in intervention (Rule 19. Sec. 3)

b. even when there is such a connection, the court has no jurisdiction

claim may, with permission of the court, be presented by

third-party complaints or issues. But a separate trial may be denied if a party is

When is there forum shopping?

knowledge or other condition of the mind of a person may be

7. Filing and Service of pleadings (Rule 13)

Every judgment, resolution, order, pleading subsequent to the complaint, written

30 days 15 days 10 days

1. Answer the 1. Answer to amended

within fifteen (l5) days after service of

Answer of a defendant foreign (30) days after receipt of summons by

ten (10) days from notice of the order

Answer to counterclaim or cross-

same rule as the answer to the complaint

within ten (l0) days from service of the

ten (10) days from notice of the order

* Upon motion and on such terms

extend the time to plead provided

* The court may also, upon like

IV. Manner of filing

Rule 13, Sec. 13. Proof of service.

pleader; and claims or defenses alleged therein not incorporated in the

When any action is commenced against a defendant who ordinarily resides

c. Substituted service or extraterritorial service of summons by leave

What is the effect of non-compliance with order for bill of particulars?

d. Effect on the period to file a responsive pleading

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

circumstances of plaintiffs capacity to sue being an essential

(8) averments contradicted by more specific averments

b. are UNENFORCEABLE and EVIDENCE on the agreement CANNOT

Rule 17, Sec. 2. Dismissal upon motion of plaintiff.

a. If the plaintiff fails to appear at the time of trial;

What are the purposes of pre-trial?

2. A representative appears fully authorized in writing a) to enter into

What is the effect of failure of the parties to appear at the pre-trial?