CIVPRO |
and effect of law if not in conflict with the positive law. The
MODULE 1
GENERAL PRINCIPLES
A. CONCEPTS OF REMEDIAL LAW
Remedial law
Remedial law refers to the rules which provide the system for
the protection of rights, prevention of the violation of such
rights and the means of redress for such violations. Such rules
also provide the methods for the enforcement of obligations
recognized by law and lay out the procedure by which suits
are filed, tried, and decided upon by the courts of justice.
Concept of remedial law
Rules of Procedure by which courts applying laws of all kinds
can properly administer justice. They include rules of
pleadings, practice and evidence.
Plays a vital role in the administration of justice. It lies at the
very core of procedural due process, which means a law which
hears before it condemns, one which proceeds upon inquiry
and renders judgment only after trial, and contemplates an
opportunity to be heard before judgment is rendered.
Remedial Law is that branch of law which prescribes the
method of enforcing rights or obtaining redress for their
invasion.
Nature of remedial law
Rules of Court have the force and effect of law. Strict
compliance with the rules has been held mandatory and
imperative.
Bar 2006: How are remedial laws implemented in our
system of government?
A: Remedial laws are implemented in our system of
government through the pillars of the judicial system,
including the prosecutor service, our courts of justice and
quasi-judicial agencies.
Sources of remedial law
1. Rules of Court.
a. Procedural laws and rules. The main source of
remedial law in the Philippines is the Rules of Court
promulgated by the SC.
2. Circulars issued by the SC.
3. Administrative orders/issuances of the SC.
4. Some provisions in the Philippine Constitution.
5. Some statutes passed by the legislature.
6. Different laws creating the judiciary. (PPT of Judge)
7. Internal rules. (PPT of Judge)
8. Court decisions. (PPT of Judge)
Major aspects of remedial law
1. Civil procedure
2. Criminal procedure
3. Special proceedings
4. Evidence
Scope of civil procedure in the rules of court:
1. Ordinary civil actions
2. Provisional remedies
3. Specific civil actions
Note: Rules of Court cannot be called as laws in strict sense.
But since they are promulgated by the SC, they have the force
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Rules are subordinate to the statute; the latter prevails.
B. SUBSTANTIVE LAW VIS-À-VIS REMEDIAL LAW
Substantive law
Substantive law creates, defines, and regulates and duties
concerning life, liberty, or property or the powers of agencies
or instrumentalities for the administration of public affairs,
which when violated gives rise to a cause of action.
(a) Creates vested rights
(b) Generally prospective in application
(c) Enacted by Congress
Remedial law is not substantive law.
Remedial law does not create rights or obligations but lays
down the methods by which the rights and obligations arising
from the substantive law are protected enforced and given
effect.
(a) Does not create vested rights
(b) GR: May be applied retroactively
Exceptions:
a. Statute expressly provides
b. Under the circumstances when it would not be
feasible or would work injustice
c. If to do so would intricate problems of due process
or impair independence of courts
(c) SC empowered to promulgate the rules.
Fabian v. Desierto
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 substantive matter; but if it operates as a means of
implementing an existing right, then the rule deals merely with
procedure.
Panay Railways, Inc. v. Heva Management and
Development Corp.
Payment of docket fees is procedural. Statutes and rules
regulating the procedure of courts are considered applicable to
actions pending and unresolved at the time of their passage. This
retroactive application does not violate any right of a person
adversely affected.
Prospective effect of the Rules of Court
(a) The Rules of Court are not penal laws and are not to be
given retroactive effect.
(b) The rules shall govern cases after they take effect, and
also to pending cases, except if, in the opinion of the
court, their application would not be feasible or would
work injustice in which event, the former procedure shall
apply.
Exception, retroactive effect of Rules of Court
Rules of procedure may be made applicable to actions pending
and undetermined at the time of their passage, and are
deemed retroactive in that sense and to that extent.
Tan Jr. v CA
The retroactive application of procedural laws will not apply if
it would not be possible or feasible or would work injustice.
Nor may procedural laws be applied retroactively to pending
actions if to do so would involve intricate problems of due
process or impair the independence of courts. Hence,
remedial statues which do not create new or take away vested
rights, but only operate in furtherance of the remedy or
confirmation of rights already existing, do not come within the
legal conception of a retroactive law, or the general rule
against the retroactive operation of statutes.
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Fabian v Desierto
Generally, rules or statutes involving a transfer of cases from
one court to another, are procedural and remedial merely and
that, as such they are applicable to actions pending at the
time the statute went into effect or, in the case at bar, when
its invalidity was declared.
Q: How shall the Rules of Court be construed?
A: The Rules of Court should be liberally construed in order to
promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding.
When procedural rules apply to pending actions
Rule 114 of the Rules of Court. The rules are applicable also
to “further proceedings in cases then pending” when the Rules
of Court took effect.
When procedural rules do not apply to pending actions
The rule does not apply to pending actions:
(a) Where the statute itself or by necessary implication
provides that pending actions are excepted from its
operation;
(b) If applying the rule to pending proceedings would impair
vested rights;
(c) When to do so would not be feasible or would work
injustice; or
(d) If doing so would involve intricate problems of due
process or impair the independence of the courts.
Actions/proceedings governed by the Rules of Court
The Rules of Court shall govern the procedure observed in civil
actions, criminal actions, and special proceedings and shall
also apply in all courts, except as otherwise provided by the
SC.
Actions/proceedings not governed by the Rules of
Court
1. Sec. 4, Rule 1 of the RoC
a. Election cases
b. Land registration cases
c. Cadastral cases
d. Naturalization cases
e. Insolvency proceedings
2. The RoC may apply to Sec. 4, Rule 1 by:
a. Analogy, or
b. In a suppletory character and whenever practicable
and convenient
3. Administrative bodies. They are not bound by the
technical niceties of law and procedure and the rules
obtaining in the courts of law.
4. Judicial rules of procedure do not apply to non-judicial
proceedings, among others, labor disputes.
a. Technical rules of procedure are not applicable in
labor cases, but may apply only by analogy or in a
suppletory character, as when there is a need to
attain substantial justice and an expeditious,
practical and convenient solution to a labor problem.
Reliance on the technical rules on evidence in labor
cases is misplaced.
b. Labor case - mere affidavits are hearsay, when used
in court proceedings because the affiants were not
presented in the labor case for cross-examination,
was deemed not persuasive.
c. Even in appeals in labor cases, the requirement of
proof of service may be dispensed with since, in such
appeals, non-service of copy of the appeal or appeal
memorandum to the adverse party is not a
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
jurisdictional defect which calls for the dismissal of
the appeal.
5. The rule on formal offer of evidence is not applicable to a
case involving a petition for naturalization.
6. Quasi-judicial and administrative bodies are not bound by
the technical rules of procedure, that technicalities should
never be used to defeat the substantive rights of a party.
The need to follow fundamental evidentiary rules
While administrative or quasi-judicial bodies are not bound by
the technical rules of procedure, this rule cannot be taken as
a license to disregard fundamental evidentiary rules; the
decision of the administrative agencies and the evidence it
relies upon must, at the very lease be substantial.
C. RULE-MAKING POWER OF THE SUPREME COURT
Section 5(5), Art. VIII, Constitution of the Philippines
expressly confers upon the Supreme Court the power to:
“Promulgate rules concerning the protection and enforcement
of constitutional rights, pleading, practice, and procedure in all
courts… Rules of procedure shall remain effective unless
disapproved by the Supreme Court.”
(a) The rule-making power of the SC specifically includes the
constitutional power to promulgate rules concerning
pleading, practice and procedure.
(b) Its rule-making power has the sole prerogative to amend,
repeal, or even establish new rules for a more simplified
and inexpensive process, and the speedy disposition of
cases. This power is exclusive domain of the SC.
(c) Other branches of government are said to trespass upon
the rule-making power of the SC if they enact laws or
issue orders that effectively repeal, alter or modify and of
the procedural rules promulgated by the Court. E.g.
a. Sec. 14 of RA 6670 as ineffective. This provision
prohibits courts, except the SC, from issuing a writ
of injunction to delay an investigation of the
Ombudsman, unless the subject matter of the
investigation is outside its jurisdiction. The Court held
that the authority of a court to issue injunctive writs
is embodied in Rule 58 of RoC and is part of its
inherent power to issue all auxiliary writs and other
means necessary to carry its jurisdiction into effect
under Sec. 6 of Rule 135 of RoC.
b. Sec 27 of RA 6770 as unconstitutional. The provision
states that decisions or orders of the Ombudsman
may be appealed to the SC by filing a petition for
certiorari within 10 days from receipt of the written
notice of the order, directive or decision or denial of
the MR in accordance with Rule 45 of the RoC. Under
the Constitution, “No law shall be passed increasing
the appellate jurisdiction of the SC as provided in this
Constitution without its advice and concurrence.”
Since it was passed without the SC’s advice and
concurrence, its passage was in violation of Sec. 30,
Art. VI of the 1987 Constitution. Such provision was
also inconsistent with Sec. 1, Rule 45 of the 1997
RoC which applies only to a review of “judgments or
final orders of the CA, SB, The Court of Tax Appeals,
RTC, or other courts authorized by law.” Such
remedy does not apply to a review of judgments or
final orders of quasi-judicial agencies, such as the
Office of the Ombudsman, the remedy being a Rule
43 appeal to the CA.
c. Cooperative Code cannot provide for rules on
summons and service of processes which are
contrary to those provided in the Rules of Court.
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Service of summons in civil, criminal, or special
proceedings is a matter of procedure which cannot
be replaced by the Cooperative.
Limitations on the Rule-making power of the SC
The following limitations are imposed by the Constitution
(1) The rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases;
(2) The rules shall be uniform for courts of the same grade;
and
(3) The rules shall not diminish, increase, or modify
substantive rights.
Remedial law:
a. Object: not to cause undue protraction of the litigation,
but to facilitate the adjudication of conflicting claims and
to serve, rather than to defeat, the ends of justice.
b. Implementation: through the judicial system, including
the prosecutor service of courts and quasi-judicial
agencies.
c. Interpretation: GR: rules shall be liberally construed in
order to promote their objective of securing a JUST,
SPEEDY and INEXPENSIVE disposition of every action and
proceeding. (Sec. 6, Rule 1)
Exceptions: When rules involve technical matters
a) Reglementary periods
b) Rule on forum shopping; and
c) Service of Summons
Martos v. New San Jose Builders, Inc.
Failure to observe the formality in failing to sign for those
persons concerned was a fatal defect. Out of many dismissed
employees, only 1 signed. They had plenty of opportunities to
rectify. Still, the concerned parties argued for the liberal
interpretation. SC did not apply liberal interpretation. Liberal
interpretation may only be invoked where there is an excusable
formal error in a pleading provided it does not subvert the essence
of the proceeding and there connotes a reasonable attempt at
compliance.
Fundamental is the precept that rules of procedure are meant
not to thwart but to facilitate the attainment of justice hence, their
rigid application may, for deserving reasons, be subordinated by
the need for an apt dispensation of substantial justice in the normal
course. They ought to be relaxed when there is subsequent or
even substantial compliance, consistent with the policy of liberality
espoused by Rule 1, Section 6.
d. Rule on Uniform Interpretation - The principle that
every statute must be so construed and harmonized with
other statutes applies to interpreting different sets of
rules such as the Rules of Civil Procedure and the Rule on
Summary Procedure
Power of the SC to amend and suspend procedural
rules
(1) The SC has the power to amend, repeal or even establish
new rules for a more simplified and inexpensive process,
and the speedy disposition of cases.
a. It carries with that power to overturn judicial
precedents on points of remedial law through the
amendment of the Rules of Court.
b. The Court is invested with the power to suspend the
application of the rules of procedure as a necessary
complement to its power to promulgate the same.
(2) It is within the power of the SC to make exceptions to the
Rules of Court.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
a. “The courts have the power to relax or suspend
technical or procedural rules or to except a case from
their operation when compelling reasons so warrant
or when the purpose of justice requires it. What
constitutes good and sufficient cause that would
merit suspension of the rules is discretionary upon
the courts.
(3) The power to suspend technical rules is observed to be
broader and more pervasive when exercised by the SC.
a. Jurisprudence, the principle that when a decision
becomes final, the same can, and should, never be
disturbed. The judgment of courts must become final
at some definite date fixed by law.
b. Nevertheless, the rule has not been spared from the
Court’s power to suspend a rule. From the viewpoint
of the Court, “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.
(4) The power to suspend procedural rules or relax the
application of such rules, has also been exercised in
criminal cases.
a. Sec. 23, Rule 119 of the Rules of Court, an order
denying a demurrer to evidence shall not be
reviewable by certiorari or appeal before judgment.
However, case of SB denied a demurrer to evidence
as having been issued with grave abuse of discretion.
(5) Matter of bail: a person charged with an offense
punishable by RP or life imprisonment shall not be
admitted to bail when evidence of guilt is strong. (bail as
a matter of discretion). One case, granted bail not based
on evidence but on the basis of his age and fragile health.
Upholding the fundamental human rights, value & dignity
of every person.
(6) Suspension of the Rules of Court is not based on whim,
caprice or flimsy reasons. Jurisprudence cite important
factors that would warrant such suspension:
a. The existence of special or compelling
circumstances;
b. The merits of the case;
c. A cause not entirely attributable to the fault or
negligence of the party favored by the suspension of
rules;
d. A lack of any showing that the review sought is
merely frivolous and dilatory; and
e. The rights of the other party will not be unjustly
prejudiced thereby.
(7) The Court could take cognizance of a petition despite its
procedural infirmities, as when the petitioner has no legal
standing to file the same.
a. Being a mere procedural technicality, the
requirement of locus standi may be waived by the
Court in the exercise of its discretion given the
transcendental importance of the constitutional
issues it raises when the petition challenges the
constitutionality of the manner by which the
President of the Philippines makes appointments to
the judiciary.
(8) Litigations should be decided on the merits and not on
technicalities.
a. One case, Court allowed the perfection of appeal
despite delay of 6 days, since the Republic stands to
lose hundreds of hectares of land already title in its
name. To prevent miscarriage of justice.
b. Another case, the Court suspend the rule that a
motion for extension of the time to file a MR in the
CA does not toll the 15-day period to appeal. The
Court held that the procedural infirmity was not
entirely attributable to the fault of the petitioner and
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there was lack of any showing that the review sought
is merely frivolous and dilatory.
c. Similar case, the Court permitted the delay of 7 days
in the filing of MR in view of the CA’s erroneous
application of legal principles to prevent the resulting
inequity that may arise from the outright denial of
the petition.
Pro hac vice rule
Jurisprudence has described pro hac vice as a Latin term
meaning “for this one only.” When the ruling is qualified as
such, the same cannot be used as a precedent to govern other
cases.
The rule on liberal construction; purpose
Sec. 6 of Rule 1 of the Rules of Court
The Rules shall be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive
disposition of every action and proceeding.
Power of the Supreme Court to Amend and Suspend
Procedural Rules
1. When transcendental matters of life, liberty or state
security are involved
2. To relieve a litigant of an injustice commensurate
with his failure to comply with the prescribed
procedure and the mere invocation of substantial
justice is not a magical incantation that will
automatically compel the Court to suspend
procedural rules
3. When compelling reasons so warrant or when the
purpose of justice requires it. What constitutes a
good and sufficient cause that would merit
suspension of the rules is discretionary upon courts
4. Where substantial and important issues await
resolutions
5. The constitutional power of the Supreme Court to
promulgate rules of practice and procedure
necessarily carries with it the power to overturn
judicial precedents on points of remedial law through
the amendment of the Rules of Court
6. The rule which states that the mistakes of counsel
bind the client, may not be strictly followed where
observance of it would result in the outright
deprivation of the client’s liberty or property, or
where the interest of justice so requires. Simply put,
procedural rules may be relaxed in order to prevent
injustice to a litigant.
In sum, the Court deems it appropriate to relax the technical
rules of procedure in order to afford petitioner the fullest
opportunity to establish the merits of its appeal.
General rule:
Zealous observance of the rules is till the general course of
action as it serves to guarantee the orderly, just and speedy
disposition of cases.
Pilapil v. Heirs of Briones
The Rule is that the SC is not a trier of facts. But the SC found
out that the RTC and CA made an erroneous judgment on an
erroneous assumption. Thus, the SC relaxed the rules because of
the mistake and applied the exception of the rule. The Court
abandonment the rule of not being a trier of facts. Thus,
compliance is the Rule; abandonment should only be done in the
most exceptional circumstances.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
While it is true that findings of fact of the Court of Appeals and the
RTC are binding and conclusive upon this Court, such is not
absolute, and there are recognized exceptions thereto. This Court
justifies its departure from the general rule and the conduct of its
own review of the evidence and other records in the Petition at
bar, given that (1) the factual conclusions of the Court of Appeals
and the RTC are grounded entirely on speculation, surmise and
conjecture; (2) the inference made were manifestly mistaken; and
(3) the findings of fact of the Court of Appeals and the RTC are
conclusions without citation of specific evidence on which they are
based.
Exception
Liberal approach is the exception to the compliance of the
Rules.
Commissioner of Internal Revenue v. Migrant Pagbilao
Corp.
The Commissioner changed his theory on appeal. The SC said
that he cannot introduce a new theory. Commissioner asking that
the tax refund should not be given to the corporation by virtue of
the VAT assessment because they are a VAT company, but it was
only franchise company. Thus, they should not be liable with VAT
tax. This statement was not presented only on appeal, not before
the lower courts. SC said that courts have the power to relax
procedural rules when compelling reasons so warrant or when the
purpose of justice requires it.
De Guzman v. Sandiganbayan
This case involves anti-graft and was filed to the SB. Accused
filed a demurrer of evidence, but was no longer to do so. SB
convicted him. Once you file a demurer of evidence, you can no
longer present evidence. But the SC was convinced of the
presentation of evidence because of a documentary evidence that
will make him innocent. Thus, the SC relaxed the rules because it
involves the liberty of a person, which is a compelling reason.
The rules of procedure should be viewed as mere tools
designed to facilitate the attainment of justice. Their strict and rigid
application, which would result in technicalities that tend to
frustrate rather than promote substantial justice, must always be
avoided.
CTMC Int’l v. Bhagis Int’l Corp.
Where strong considerations of substantial justice are
manifest on the petition, the strict application of the rules of
procedure may be relaxed, in the exercise of its equity jurisdiction.
A rigid application of the rules of procedure will not be entertained
if it will obstruct rather than serve the broader interests of justice
in the light of the prevailing circumstances in the case under
consideration.
Exception to the exception
Parties praying for the liberal interpretation of the rules must
be able to hurdle that heavy burden of proving that they
deserve an exceptional treatment.
Prieto v. Alpadi Development Corp.
Parties praying for liberal interpretation has the burden of
proving that they deserve an exceptional treatment. It was never
the Court’s intent to forge a bastion for erring litigants to violate
the rules with impunity.
Co-Unjieng v. CA
Non-payment of docket fees. It so happened that the docket
fees was paid more than 4 months. But SC said that you cannot
compare the movant’s case to a case where the delay was for 4 or
6 days. Mere invocation of substantial justice is not a magical
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incantation that will automatically compel the court to suspend
procedural rules.
Court Judge

A tribunal officially assembled Simply an officer of such

For you to avail the privilege of liberal interptration, you must under authority of law. tribunal.
sufficiently establish that you are entitled to the same because
of good faith, willingness to comply but with reasons beyond Disqualification of a judge does
your control. May be disqualified.
not affect the court.

Summary: Reasons that warrant the suspension of the It is being in imagination

Physical person.
Rules of Procedure comparable to a corporation.
1. The existence of special or compelling circumstances
2. The merits of the case A court may be considered an
A judge is a public officer
3. A cause not entirely attributable to the fault or negligence office
of the party favored by the suspension of rules
A court is an organ of the
4. A lack of any showing that the review sought is merely government with a personality
frivolous and dilatory separate and distinct from the
5. The other party will not be unjustly prejudiced thereby person or judge who sits on it.
6. Transcendental matters of life, liberty or state security

Power to stay proceedings and control its processes
Security Bank Corp. vs. Judge Victorio
Power to stay proceedings and control its processes - is
incidental to the power inherent in every court to control the
disposition of the cases on its dockets, considering its time and
effort, and that of counsel and the litigants. But if the proceedings
may be stayed, it must be done in order to avoid multiplicity of
suits and prevent vexatious litigations, conflicting judgments, and
confusion between litigants and courts.
PHILIPPINE JUDICIAL SYSTEM
D. NATURE OF THE PHILIPPINE COURTS
Philippine courts are both courts of law and equity. Hence,
both legal and equitable jurisdiction is dispensed with in the
same tribunal.
Meaning of a court
A court is an entity or body vested with a portion of the judicial
power.
It is an organ of government belonging to the judicial
department the function of which is the application of the laws
to the controversies brought before it as well as the public
administration of justice. It is a governmental body officially
assembled under authority of law at the appropriate time and
place for the administration of justice through which the State
enforces its sovereign rights and powers. It is a board or
tribunal which decides a litigation or contest.
Section 1, Art. VIII of the 1987 Philippine
Constitution. The judicial power shall be vested in one Supreme
Court and in such other lower courts as may be established by law.
Lower courts are created to divide the cases. There is division
of labor and this division is done thru delineating jurisdiction
among courts.
Functions of court
1. Decide actual controversies and not to give opinions upon
abstract propositions
2. Apply the law
3. Interpret the law
Court as distinguished from a judge
Classification of Philippine Courts
1. Constitutional and Statutory Courts
2. Superior Courts and First-Level courts (Inferior courts)
3. Courts of Original Jurisdiction and Courts of Appellate
jurisdiction
4. Civil Courts and Criminal Courts
5. Courts of law and Courts of equity
6. Courts of record; probate courts; Land Registration
Courts; Ecclesiastical Courts; Military Courts
Constitutional Courts and Statutory Courts
Constitutional courts are those that owe their creation and
existence to the Constitution. Their existence as well as the
deprivation of their jurisdictions and power cannot be made
the subject of legislation. The Supreme Court is the only court
created by the Constitution.
Statutory courts are those created by law whose jurisdiction
is determined by legislation. These may be abolished likewise
by legislation. All courts except the Supreme Court are
statutory courts. The Sandiganbayan was not directly created
by the Constitution but by law pursuant to a constitutional
mandate.
Superior Courts and Inferior Courts
A superior court is one with controlling authority over other
courts, and with an original jurisdiction of its own. An inferior
court is one which is subordinate to another court, the
judgment of which may be reviewed by a higher tribunal.
When do we say that one is a superior court or an inferior
court?
It depends on the power of one as against the other.
N.B. Only an MTC is a genuine inferior court and only the SC
is a genuine superior court.
Courts of Original Jurisdiction and Courts of Appellate
Jurisdiction
A court is one with original jurisdiction when actions or
proceedings are originally filed with it. A court is one with
appellate jurisdiction when it has the power of review over the
decisions or orders of a lower court.
MTCs are courts of original jurisdiction without appellate
jurisdiction. RTC is likewise a court of original jurisdiction with
respect to cases originally filed with it; and appellate court
with respect to cases decided by MTCs within its territorial
jurisdiction.

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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The CA is primarily a court of appellate jurisdiction with
competence to review judgments of the RTCs and specified
quasi-judicial agencies. It is also a court of original jurisdiction
with respect to cases filed before it involving issuance of
certiorari, mandamus, quo warranto, habeas corpus and
prohibition. CA is a court of original and exclusive jurisdiction
over actions for annulment of judgments of RTCs.
The Supreme Court is fundamentally a court of appellate
jurisdiction but it may also be a court of original jurisdiction
over cases affecting ambassadors, public ministers and
consuls, and in cases involving petitioners for certiorari,
prohibition and mandamus. The Supreme Court En Banc is not
an appellate court to which decisions or resolutions of a
division of the Supreme Court may be appealed.
Civil Courts and Criminal Courts
Civil courts are those that entertain only civil cases while
criminal courts are those that entertain only criminal cases.
Courts of law and courts of equity
A court of law decides a case according to the promulgated
state (law) while a court of equity decides a case according to
the common precepts of what is right and just without
inquiring into the terms of the statutes.
Q: What is equity?
Equity denotes a concept of fairness, justness and right
dealing among men. It regards the spirit of the law and not
its letter, the intent rather than the circumstance.
Q: Do we always apply equity to a case?
Equity is not applied in all cases. It does not apply when there
is a law applicable to a case.
Classification of Courts
1. Regular courts:
a. Supreme Court
b. Court of Appeals
c. Regional Trial Courts; and
d. Metropolitan Trial Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts, Municipal Circuit Trial
Courts
2. Special Courts
a. Sandiganbayan
b. Court of Tax Appeals
c. Shari’a District Courts, Shari’a Circuit Courts
d. Family Courts
3. Quasi-Courts or Quasi-Judicial Agencies
Courts-martial
Courts-martial are agencies of executive character, and one
of the authorities “for the ordering of courts-martial has been
held to be attached of the constitutional functions of the
President as Commander-in-Chief, independently of
legislation.” Unlike courts of law, they are not a portion of the
judiciary.
Military commissions or tribunals
Military commissions or tribunals, by whatever name they are
called, are also not courts within the Philippine Judicial System
Not belonging to the judicial branch of the government, it
follows that courts-martial and military commissions or
tribunals must pertain to the executive department. They are,
in fact, simply instrumentalities of the executive power
provided by Congress for the President, as Commander-in-
Chief, to aid him in properly commanding the army and navy
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
and enforcing discipline therein, and utilized under his orders
or those of his authorized military representatives.
Policy of Judicial Hierarchy
A higher court will not entertain direct resort to it unless the
redress desired cannot be obtained in the appropriate courts.
The SC is a court of last resort. It cannot and should not be
burdened with the task of deciding cases in the first instances.
Its jurisdiction to issue extraordinary writs should be exercised
only where absolutely necessary or where serious and
important reasons exist.
This is an ordained sequence of recourse to courts vested with
concurrent jurisdiction, beginning from the lowest, on to the
next higher, and ultimately to the highest. This hierarchy is
determinative of the venue of appeals, and is likewise
determinative of the proper forum for petitions for
extraordinary writs. This is an established policy necessary to
avoid inordinate demands upon the Court’s time and attention
which are better devoted to those matters within its exclusive
jurisdiction, and to preclude the further clogging of the Court’s
dockets.
The doctrine on hierarchy of courts may be disregarded if
warranted by the nature and importance of the issues raised
in the interest of speedy justice and to avoid future litigations,
or in cases of national interest and of serious implications.
Further, there is another reason why the Court enjoins strict
adherence to the doctrine on hierarchy of courts. As
explained, the doctrine of hierarchy of courts was created to
ensure that every level of the judiciary performs its designated
roles in an effective and efficient manner.
Exceptions to the doctrine:
1. When genuine issues of constitutionality are raised
that must be addressed immediately
2. When the case involves transcendental importance
3. When the case is novel
4. When the constitutional issues raised are better
decided by the Supreme Court
5. When time is of the essence
6. When the subject of review involves acts of a
constitutional organ
7. When there is no other plain, speedy, adequate
remedy in the ordinary course of law
8. When the petition includes questions that may affect
public welfare, public policy, or demanded by the
broader interest of justice
9. When the order complained of was a patent nullity
10. When the appeal was considered as an inappropriate
remedy
Doctrine of Exhaustion of Administrative Remedies
Parties are generally precluded from immediately seeking the
intervention of courts when the law provides for remedies
against the action of an administrative board, body or officer.
The practical purpose behind the principle of exhaustion of
administrative remedies is to provide an orderly procedure by
giving the administrative agency an opportunity to decide the
matter by itself correctly and to prevent unnecessary and
premature resort to the courts. However, this is not an iron
clad rule and admits of several well-defined exceptions.
Inherent Powers of the Court
Sec. 5, Rule 135 of the Rules of Court provides that every
court shall have the power:
a) preserve and enforce order
b) enforce order in proceedings before it
c) compel obedience to its judgments, orders and processes
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CIVPRO |
d) to control the conduct of its ministerial officers
e) to compel attendance of persons to testify in a case
pending therein
f) to administer oaths
g) to amend and control its processes and order so as to
conform to law and justice
h) to authorize a copy of a lost or destroyed pleading or
other paper to be filed and used In lieu of original and to
supply deficiencies in its records and proceedings.
Brief history on civil procedure in the Philippines
(a) The origin of our law on procedure is American. Forget
the law on procedure during the Spanish regime. But the
first known ancestor of the law on Civil Procedure was the
old Act 190, otherwise known as the Code of Civil
Procedure, which was enacted on August 7, 1901 by the
United States and the Philippine Commission.
(b) And that was the law until 1940 because on July 1, 1940,
SC enacted the Rules of Court which we now call the Old
Rules of Court. That continued for another 24 years until
Jan 1, 1964 when the SC enacted the Revised Rules of
Court repealing the Old Rules of Court. And that
continued for another 33 years until July 1, 1997 where
the SC enacted and which took effect on that day (July 1,
1997) the New Rules on Civil Procedure.
(c) Just recently, the 2019 Proposed Amendment to the
Rules on Civil Procedure took effect on May 1, 2020.
JURISDICTION
E. JURISDICTION OF COURTS
Jurisdiction defined
(a) It means authority or the power to hear, try and decide a
case.
(b) It also includes the power to enforce the judgment as the
judgment is the end for which jurisdiction is exercised,
and it is only through the judgment and its execution that
the power of the court is made efficacious and its
jurisdiction complete.
(c) The power to control the execution of its decision is an
essential aspect of jurisdiction. It cannot be subject of
substantial subtraction and the most important part of the
litigation is the process of execution of decisions.
4. RULE 9 SEC. 1 – “x x x when it appears from the pleadings
x x x that the court has no jurisdiction over the subject
matter x x x, the court shall dismiss the claim.
5. When the court has jurisdiction, it is its duty to exercise
the same and to render a decision. Failure to do so may
be enforced by way of a mandamus proceedings.
Note:
➢ A judgment of a court without jurisdiction over the
case is null and void. This ground of lack of
jurisdiction may be raised even on appeal. Exception:
Jurisdictional estoppel.
➢ What determines the jurisdiction of the court is the
nature of the action pleaded as appearing from the
allegations in the complaint. The averments and the
character of the relief sought are the ones to be
consulted.
➢ The principle is that jurisdiction over the subject
matter of a case is conferred by law and determined
by the allegations in the complaint which comprise a
concise statement of the ultimate facts constituting
the plaintiff’s cause of action. The nature of an
action, as well as which court or body has jurisdiction
over it, is determined based on the allegations
contained in the complaint of the plaintiff,
irrespective of whether or not the plaintiff is entitled
to recover upon all or some of the claims asserted.
Jurisdiction being a matter of substantive law, the
established rule is that the statue in force at the time
of the commencement of the action determines the
jurisdiction of the court.
Error of Jurisdiction v. Error of Judgment
Error of Jurisdiction Error of Judgment
When a court takes cognizance
of a case over the subject
matter of which it has no
When a court acquires
jurisdiction, the decision or
jurisdiction, or acts in excess of
order arising in the case is but
jurisdiction or with grave abuse
an exercise of jurisdiction.
of discretion amounting to lack
They are merely
of jurisdiction, the court
commits an ERRORS OF JUDGMENT.
ERROR OF JURISDICTION

Test of Jurisdiction Such act would be null and Such mistake will bind unless
Whether the court has the power to enter into the inquiry void. corrected.
and not whether the decision is right or wrong.
They are reviewable by the Reviewable by appeal.
(d) Correctness or rightfulness of the decision relates to the extraordinary writ of certiorari.
exercise of and not to the authority itself.
(e) The court’s jurisdiction to hear and decide a case is based
on law. In other words, jurisdiction is conferred by law. Types of Jurisdiction
1. Based on the cases tried
a. General jurisdiction
Duty of the Court to Determine Its Jurisdiction b. Special or limited jurisdiction
1. It is the duty of the court to consider the question of 2. Based on the nature of the case
jurisdiction before it looks at other matters involved in the a. Original
case. b. Appellate
2. Courts are bound to take notice of the limits of their 3. Based on the nature and extent of exercise
authority and they may act accordingly by dismissing the a. Exclusive
action even through the issue of jurisdiction is not raised b. Concurrent or coordinate
or not even suggested by counsel.
3. If it finds that it has no jurisdiction, the court’s only Courts of General Jurisdiction v Courts of Limited
recourse is to dismiss the case motu proprio or upon Jurisdiction
motion for without authority it cannot act. Courts of general jurisdiction are those with competence to
decide on their own jurisdiction and take cognizance of all
cases, civil and criminal, of a particular nature. A court may

7
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
CIVPRO |
also be considered general if it has the competence to exercise
jurisdiction over cases not falling within the jurisdiction of any
court, tribunal person, or body exercising judicial or quasi-
judicial functions.
Courts of a limited jurisdiction are those which have
jurisdiction only for a particular purpose or are clothed with
special powers for the performance of specified duties beyond
which they have no authority of any kind.
A court may also be considered ‘general’ if it has the
competence to exercise jurisdiction over cases not falling
within the jurisdiction of any court, tribunal, person or body
exercising judicial or quasi-judicial functions. It is in this
context that the RTC is considered a court of general
jurisdiction.
Courts of Original and Courts of Appellate Jurisdiction
Explained above
Exclusive Jurisdiction and Concurrent Jurisdiction
Exclusive jurisdiction means that a case can only be filed in a
certain court, and not in any other court. That court has
exclusive jurisdiction to hear and decide a case. Original
jurisdiction means jurisdiction to take cognizance of a case at
its inception, try it and pass judgment upon the law and facts.
Exclusive jurisdiction precludes the idea of co-existence and
refers to jurisdiction possessed to the exclusion of others.
Concurrent jurisdiction means that a case can be filed in two
or more courts. This is also called coordinate jurisdiction and
refers to the power of different courts to take cognizance of
the same subject matter. However, the court first taking
cognizance of the case assumes jurisdiction to the exclusion
of the other courts.
Principles of Jurisdiction
(a) Exclusionary Principle.
The court first acquiring jurisdiction excludes all others.
(b) Judicial Hierarchy.
Direct resort to the Supreme Court will cause the
dismissal of the recourse. This policy is designed to shield
SC from having to deal with causes that are also well
within the competence of the lower courts, and thus leave
time to the Court to deal with the more fundamental and
more essential tasks that the Constitution has assigned to
it.
(c) Judicial Stability/Principle of Non-interference.
No court has the authority to interfere by injunction with
the judgment of another court of coordinate jurisdiction.
This doctrine applies with equal force to administrative
bodies. When the law provides for an appeal from the
decision of an administrative body to the SC or CA, it
means that such body is co-equal with the RTC in terms
of rank and stature, and logically beyond the control of
the latter.
The rationale for the rule is founded on the concept of
jurisdiction: a court that acquires jurisdiction over the
case and renders judgment therein has jurisdiction over
its judgment, to the exclusion of all other coordinate
courts, for its execution and over all incidents, and to
control, in furtherance of justice, the conduct of
ministerial officers acting in connection with this
judgment.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
(d) Doctrine of Ancillary Jurisdiction
It involves the inherent or implied power of the court to
determine issues incidental to the exercise of its primary
jurisdiction. A court may determine all questions relative
to the matters brought before it, the matter in which the
trial shall be conducted, determine the hours by which
the witnesses and lawyers may be heard, and direct the
disposition of money deposited in court in the course of
the proceedings, appoint the receiver, or grant an
injunction or attachment or garnishment.
It is the duty of the court to issue orders or resolutions
not mentioned explicitly expressed in the rules as part of
its functions in the disposition or adjudication of the case,
for purposes of disposing its exercise of its primary
jurisdiction. Thus, it is an inherent power of the court to
perform its primary jurisdiction.
ELEMENTS OF JURISDICTION IN CIVIL CASES
(1) Jurisdiction over the subject matter
(2) Jurisdiction over the person of the parties to the case
(3) Jurisdiction over the res; and
(4) Jurisdiction over the issues.
F. JURISDICTION OVER THE SUBJECT MATTER
(a) Jurisdiction over the subject property is conferred by law,
which may be either the Constitution or a statute.
(b) It is never acquired by consent or submission of the
parties or by their laches.
(c) This is a matter of legislative enactment which none but
the legislature can change.
(d) It cannot be acquired by an agreement of the parties,
waiver, or failure to object.
(e) The law that confers jurisdiction refers to substantive law,
not a procedural law. It likewise does not refer to an
administrative order or circular.
General Rule
It is a settled rule that jurisdiction over the subject matter is
determined by the allegations in the complaint regardless of
whether or not the plaintiff is entitled to his claims.
Exception:
Salmorin vs. Zaldivar, G.R. No. 169691, July 23, 2008.
Ejectment cases within the jurisdiction of MTC but if the
defendant alleges tenancy to exist between him and plaintiff, the
court should receive evidence in support of claim of tenancy. If
after hearing, tenancy had in fact been shown to be the real issue,
the court should dismiss the case for lack of jurisdiction. The case
is cognizable with Court of Agrarian Reform (now DARAB).
Note: Pursuant to DOJ Department Circular No. 40, dated
June 7, 2010, when a complaint is filed with the regular courts,
automatic referral must be had to DARAB.
[continue of jurisdiction over the subject matter]
(f) It is a matter of substantive law, the established rule is
that statute in force at the time of the commencement of
the action determines jurisdiction – has no retroactive
effect.
a. For example: MTC filed, but a new law transferred
the jurisdiction; the jurisdiction stays because
jurisdiction is determined in the allegations of the
complaint at the commencement of the action.
Doctrine of Primary Jurisdiction
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CIVPRO |
Villaflor vs. CA
Courts will not resolve a question which is within its
jurisdiction and also of an administrative tribunal, esp. where the
question demands the exercise of sound administrative discretion
requiring the special knowledge and experience of said tribunal in
determining technical and intricate matters of fact.
US vs. Western Pacific Co.; Industrial Enterprises vs. CA,
184 SCRA 426
The judicial process is suspended pending referral of such
issues to the administrative body for its view.
The reasons for the existence and the purpose is serves are
two-fold: (1) the desire for the uniformity and (2) the reliance on
administrative expertise
The objective is to guide a court in determining whether it
should refrain from exercising its jurisdiction until after an
administrative agency has determined some questions or
some aspect of some question arising in the proceeding before
the court. This doctrine precludes the courts from receiving a
controversy over which jurisdiction has initially been lodged
with an administrative body of special competence.
Doctrine of Continuity of Jurisdiction
(Adherence of Jurisdiction)
Ramos vs. Central Bank, 41 SCRA 586
Jurisdiction once it attaches 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.
People vs. Cawaling, 293 SCRA 267
Jurisdiction is not affected by a new law placing a proceeding
under the jurisdiction of another tribunal EXCEPT when otherwise
provided in the statute or if the statute is clearly intended to apply
to actions pending even before its enactment.
Echegaray vs. Sec. of Justice, 301 SCRA 96; Republic vs.
Atlas Farms, 345 SCRA 296
Even after the judgment has become final, the court retains
jurisdiction to enforce and execute it.
Exceptions: doctrine of continuity of jurisdiction
(1) When there is express provision in the statute on
retroactive application
(2) When the statute is clearly intended to apply to actions
pending before its enactment; or
(3) When the statute is curative. (Garcia vs. Martinez, 90
SCRA 331 and Atlas Fertilizer vs. Hon. Navarro, 149 SCRA
432)
a. Curative – e.g. court had no jurisdiction, but because
of a new law, the erroneous court, acquired
jurisdiction, curing the defect.
How jurisdiction over the Subject Matter is acquired
by the Court
1. It is conferred by law applicable at the time of the
commencement of the action; and
2. Jurisdiction must be properly invoked by filing of
complaint or information.
3. When a complaint is filed in court, the basic questions
that ipso facto are to be immediately resolved by the
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
court on its own are: (a) what is the subject matter of
their complaint filed before the court? (b) does the court
have jurisdiction over the said subject matter of the
complaint before it?
Objections to jurisdiction over the subject matter
(a) The court may on its own initiative object to an erroneous
jurisdiction.
(b) Through a motion to dismiss filed before the filing or
service of an answer. New Rules: it can only be raised as
an affirmative defense (Sec. 12 Rule 8) or through a
Motion to dismiss (Sec.5 Rule 15)
(c) Even if a motion to dismiss was filed and the issue of
jurisdiction was not raised therein, a party may, when he
files an answer, raise the lack of jurisdiction as an
affirmative defense because his defense is not barred
under the omnibus motion rule. (Sec 9 Rule 15)
(d) The objection may be raised at any stage of the
proceedings, even for the first time on appeal.
(e) If the party only raised the lack of jurisdiction for the first
time on appeal, did not render them in estoppel.
a. Exception: Tijam vs. Sibonghanoy (23 SCRA 29)
update: Velasquez vs. Lisondra Land, G.R. 231290,
August 27, 2020
Velasquez v. Lisondra (2020)
Adopt the general rule of adopting the raising of lack of
jurisdiction for the first time in appeal; the Tijam case was a
rare exception. In Velasquez case, the estoppel was properly
applied when the party only raised the rule when the decision
of the HLURB was not favorable to him. Thus, it amounts to
unfairness. Note: The doctrine of estoppel must be applied
with great care and only when strong equitable considerations
are present.
G. JURISDICTION OVER THE PERSON (PARTIES)
(a) It is the power to render a personal judgment against a
party to an action or proceeding through service of
process or by voluntary appearance of a party during the
progress of a cause.
(b) The power of the court to bring before it persons to be
affected by the judgment so as to give him an opportunity
to be heard, and to render a judgment binding upon his
person.
(c) In criminal cases, court acquire jurisdiction over the
person of the accused by having him (1) arrested; (2) by
service of the warrant of arrest; or (3) by his voluntary
surrender
(d) In civil cases, it depends on whether the party is the
plaintiff or defendant.
(e) The mode of acquisition of jurisdiction over the plaintiff
and the defendant applies to both ordinary and special
civil actions like mandamus or unlawful detainer cases.
(f) The rule requiring jurisdiction over the parties is based on
due process. Due process consists of notice and hearing.
Jurisdiction over the parties is the power of the courts to
make decisions that are binding on them.
(g) Violation of due process is a jurisdictional defect. Hence,
proper service of summons is imperative. A decision
rendered without proper service of summons suffers a
jurisdictional infirmity. In the service of summons,
personal service is the preferred mode. As a rule,
summons must be served personally on a defendant.
How jurisdiction over the plaintiff is acquired
a. As to plaintiff –
a) His filing of the complaint or petition. The filing
of the complaint or petition is deemed his
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CIVPRO |
invoking of the jurisdiction of the court over his
person.
Note: Do not forget the payment of correct
docket fee. By doing so, he submits himself to
the jurisdiction of the court.
How jurisdiction over the defendant is acquired
b. As to Defendant –
a) Through a valid service of summons upon him
or his voluntary submission to the court’s
authority. Thus, if he is not served with
summons or if there was improper service, any
Judgment rendered by the court will not bind
him.
b) voluntary submission of the defendant to the
jurisdiction of the court can be by: a.) waiver;
b.) consent or c.) lack of objection by the
defendant
c) one who seeks an affirmative relief is deemed to
have submitted to the jurisdiction of the court
d) however, if an appearance is specially to
challenge the jurisdiction over his person, it
cannot be considered to have submitted to the
court’s authority
Note:
➢ Jurisdiction over the person of the defendant is
required only in an action in personam. It is not a
prerequisite in an action in rem and quasi in rem. In
an action in personam, jurisdiction over the person is
necessary for the court to validly try and decide the
case, while 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 the latter has jurisdiction over the res.
➢ A defendant who files a motion to dismiss, assailing
the jurisdiction of the court over his person, together
with other grounds raised therein, is not deemed to
have appeared voluntarily before the court. What the
rule on voluntary appearance means is that the
voluntary appearance of the defendant in court is
without qualification, in which case he is deemed to
have waived his defense of lack of jurisdiction over
his person due to improper service of summons.
Certain actions which could be construed as voluntary
appearance are:
1. When the defendant’s counsel files the corresponding
pleading thereon;
2. When the defendant files a motion for reconsideration of
the judgment by default
3. When the defendant files a petition to set aside the
judgment by default
4. When the defendant and plaintiff jointly submit a
compromise agreement for the approval of the court
5. When the defendant files an answer to the contempt
charge
6. When the defendant files a petition for certiorari without
questioning the court’s jurisdiction over his person
How to raise objection to jurisdiction over the person
of the defendant
Either in a Motion to Dismiss or as an Affirmative defense
included in the answer. Otherwise it is deemed waived.
La Naval Drug Corp. vs. CA
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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.
Constructive custody, custodia legis
When the property is not literally brought in court, but the
court has custody of the property or thing.
H. JURISDICTION OVER THE RES OR THE PROPERTY
IN LITIGATION
The power or authority of the court over the thing or property
under litigation. It is the power to bind the “thing”.
How acquired:
1. seizure whereby the property is brought into actual or
constructive custody of the court or
2. result of the institution of the legal proceedings, in which
power of the court is recognized and made effective.
Importance:
There are instances when the court cannot acquire jurisdiction
over the defendant like when he is abroad. But if the court
acquires jurisdiction over the res, the case may go on.
I. JURISDICTION OVER THE ISSUE
Meaning of issue:
It is a disputed point or question to which parties to an action
have narrowed down their several allegations and upon which
they are desirous of obtaining a decision.
Jurisdiction over the issue
Jurisdiction over the issue is the authority to try and decide
the issues raised in the pleadings of the parties.
In order to determine whether or not a court has jurisdiction
over the issues, one must examine the pleadings. Jurisdiction
over the issue is conferred and determined by the pleadings
of the parties. The pleadings present the issues to be tried
and determined whether or not the issues are of fact or law.
From the pleadings of the parties, the court will determine
what the issues are to be resolved. If it is not raised in the
pleadings, the court does not have jurisdiction over matters
not included therein. However, even if not included in the
pleadings but there is waiver or failure to object in the
presentation of evidence, jurisdiction is now conferred.
Note: Jurisdiction over the issues may also be determined and
conferred by stipulation of the parties as when in the pre-trial,
the parties enter into stipulations of facts and documents or
enter into agreement simplifying the issues of the case.
Jurisdiction over subject matters v. over the issues
Jurisdiction over the
Jurisdiction over the issues
subject matter
The power to hear and try a The power of the court to resolve
particular case. questions involved in the case.
Acquired upon filing of the
Acquired upon the filing of
answer which joins the issues
the complaint,
involved in the case.
Supreme Court
(a) Its jurisdiction is found in the fundamental law itself.
(b) Composed of the Chief Justice and 14 Associate Justices
(c) Principal Functions:
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CIVPRO |
a. Adjudication (Judicial power);
b. Administration (Disciplinary power) and
c. Rule making
(d) It sits either en banc or in divisions of 3, 5 or 7 members.
At present, it has 3 divisions of 5 members each.
(e) The court en banc is not an appellate court to which
decisions or resolutions of a division may be appealed.
(f) No doctrine or principle of law laid down by the court in
a decision rendered en banc or in division may be
modified or reversed except by the court sitting en banc.
En Banc Cases
(a) constitutionality of a treaty, executive agreement, law,
ordinance or exec order or regulation
(b) criminal cases where death penalty is imposed
(c) cases raising novel questions of law
(d) affecting ambassadors, public ministers and consuls
(e) doctrine or principle laid down by the court en banc or
division may be modified or reversed
(f) cases assigned to division inc MR which in the opinion of
at least 3 members merit the attention of the
Court en banc
(g) cases wherein majority of the en banc membership may
deem of sufficient importance to merit its attention
(h) cases where penalty is the dismissal of a judge, officer,
or employee of the SC, disbarment of a lawyer, or
suspension of any of them for a period of more than one
year or a fine of P10,000
(i) cases involving decisions, resolutions or orders of the
Sandiganbayan, Comelec, COA or Military Tribunal
(j) Habeas corpus against government or military officials.
Original Jurisdiction (Article Viii Sec 5 Par 1)
1. Exclusive
2. Concurrent
a. Court of Appeals
b. Court of Appeals and RTC
c. Court of Appeals, Sandiganbayan and RTC
d. RTC
The Supreme Court has exclusive original jurisdiction
over cases effecting ambassadors, other public ministers and
consuls, and over petitions for certiorari, prohibition and
mandamus, quo warranto and habeas corpus.
Likewise, it has exclusive original jurisdiction over
petitions for issuance of certiorari, prohibition and mandamus
directe against the CA, COMELEC en Banc, COA,
Sandiganbayan, Court of Tax Appeals and Office of the
Ombudsman in criminal and non administrative disciplinary
cases.
It has jurisdiction to review, revise, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may provide,
final judgments and orders of lower courts in:
a. 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
b. All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation thereto
c. All cases in which the jurisdiction of any lower court is in
issue
d. All criminal cases in which the penalty imposed is reclusion
perpetua or higher
e. All cases in which only an error or question of law is involved
Concurrent original jurisdiction:
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
a. With CA in petitions for certiorari, prohibition and
mandamus against the RTC, CSC, Central Board of
Assessment Appeals, NLRC, Quasi-Judicial agencies
and writ of kalikasan, all subject to the doctrine of
hierarchy of courts
b. With the CA, Sandiganbyan, RTC and Shari-ah in
petitions for certiorari, prohibition and mandamus
against lower courts and bodies; and in petitions for
quo warranto,and writs of habeas corpus, all subject
to the doctrine of hierarchy of courts
c. With CA, RTC and Sandiganbayan for petitions for
writs of amparo and habeas data
d. Concurrent and original jurisdiction with the RTC in
cases affecting ambassadors, public minsters and
consuls.
Appellate jurisdiction by way of petition for review on certiorari
(appeal by certiorari under Rule 45) against the CA, CTA en
banc, Sandiganbayan, RTC on pure questions of law; and in
cases involving the constitutionality or validity of a law or
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance or
regulation, legality of a tax, impost, assessment, toll or
penalty, jurisdiction of a lower court; and CTA in its decisions
rendered en banc.
Appellate Jurisdiction
(SEC. 5 PAR 2 ART VIII, Constitution)
(a) Automatic review – from the CA, all criminal cases
involving offenses for which the penalty imposed is death.
(b) Ordinary Appeal by Notice of Appeal - all criminal cases
involving offenses which the penalty imposed is reclusion
perpetua or life imprisonment
(c) Petition for Review on Certiorari (Rule 45)
(d) Special Civil Action of Certiorari
Petition for Review on Certiorari (Rule 45) From
Decisions of the RTC
(a) If RTC declares a law as unconstitutional, the same has
to be appealed directly to the SC. It cannot pass through
the CA because the SC has exclusive appellate jurisdiction
regarding the matter.
(b) If there is purely an issue of jurisdiction of RTC, the SC
shall have exclusive appellate jurisdiction. However, if the
jurisdictional issue is mixed with a factual issue, the
appeal should be in the CA w/o prejudice to the filing of
the same with the SC later.
(c) Also, if only question of law is at issue without any mix of
question of fact, go directly to SC, otherwise, appeal must
be made to CA first. This applies to both criminal and
civil.
(d) QUESTION OF LAW vs. QUESTION OF FACT tip: if the
review requires a re-examination of the evidence, then
it involves a question of fact.
Questions of Law vs. Questions of Fact
A question of law arises when there is doubt as to what the
law is on a certain state of facts, while there is a question of
fact when the doubt arises as to the truth or falsity of the
alleged facts. For a question to be one of law, the question
must not involve the examination of the probative value of the
evidence presented by the litigants or any of them. The
resolution of the issue must rest solely on what the law
provides on the given set of circumstances. Once it is clear
that the issue invites a review of the evidence presented, the
question posed is one of fact. Thus, the test of whether a
question is one of law or of fact is not the appellation given to
such question by the party raising the same; rather it is
whether the appellate court can determine the issue raised
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CIVPRO |
without reviewing or evaluating the evidence, in which case,
it is a question of law; otherwise, it is a question of fact.
The Supreme Court Is Not A Trier Of Facts.
The SC will no longer look for the factual matters. They will
only rely on the facts made by the lower courts or the courts
of origin.
(a) Passing upon a factual issue is not within the province of
the Court. The findings of facts of the Court of Appeals
are not generally reviewable by the SC. Also, factual
findings of the trial court, particularly when affirmed by
the CA, are generally binding on the Court.
(b) It is not SC’s function to determine the weight of the
evidence supporting the assailed decision.
Exceptions: factual issues may be resolved by the
SC
a) When findings 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 misapprehension of
facts;
e) When the findings of acts are conflicting;
f) CA in making its findings, went beyond the issues of
the case or its findings are contrary to the admissions
of both appellant and appellee;
g) When the findings are contrary to the trial court
h) When the findings are conclusions without citation of
specific evidence on which they are based
i) When the facts set forth in the petition, as well as in
the petitioner’s main and reply briefs, are not
disputed by the respondent
j) When the findings of fact are premised on the
supposed absence of evidence and contradicted by
the evidence on record; and
k) when the CA manifestly overlooked certain relevant
facts not disputed by the parties, which, if
properly considered, could not justify a
different conclusion.
Other Constitutional Provisions Dealing With the
Jurisdiction of the Supreme Court
(a) Art. IX, Decisions, Ruling or Oder of COMELEC, COA and
CSC may be brought to the Supreme Court on certiorari
by the aggrieved party within 30 days from receipt of the
copy thereof.
a. However, based on the present law, CSC decision is
no longer directly appealable to the SC. It should be
appealed to the CA.
(b) SC as Presidential Electoral Tribunal (Art. VII, Sec. 4 last
par.)
(c) Judicial Review of Presidential Proclamation of Martial
Law or Suspension of the Privilege of Habeas Corpus (Art.
VII, Section 18(3).
a. The SC can inquire into the basis on why martial law
is declared.
(d) Congress and Jurisdiction of the SC
a. Congress does not have the power to lessen or
deprive the SC of its jurisdiction (Sec 5 Art VIII).
However, it can increase its powers and jurisdiction,
PROVIDED it is with the latter’s advise and
concurrence. (Art. VI, Sec 30)
Court of Appeals
(a) Jurisdiction of CA is governed by BP 129 or the Judicial
Reorganization Act of 1980
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
(b) CA is composed of 69 justices constituting 23 divisions.
They decide cases by division of 3. They sit en banc only
for administrative matters and not to decide a case.
(c) CA was formerly called Intermediate Appellate Court
Original Jurisdiction Of The Court Of Appeals
1. Exclusive
a. (BP 129, Sec. 9[2]; Rules of Civil Procedure – Rule
47) and (Rule 65 Sec. 4, as amended)
2. Concurrent
a. With the SC
b. With the SC and RTC
c. With the SC, Sandiganbayan and RTC
There shall be no simultaneous filing of petitions for writs of
certiorari, etc. Thus, a violation of this shall constitute
contempt of court and dismissal of both petitions w/o
prejudice to the taking of appropriate action against the
counsel or party concerned. (Interim Rules Sec. 17)
CA has exclusive original jurisdiction in actions for the
annulment of judgments of the RTC.
It has original jurisdiction to issue writs of mandamus,
prohibition, certiorari, habeas corpus and quo warranto and
auxiliary writs or processes whether or not in aid of its
appellate jurisdiction.
Concurrent original jurisdiction:
➢ With SC to issue writs of certiorari, prohibition and
mandamus against the RTC, CSC, CBAA, other quasi-
judicial agencies mentioned in Rule 43, and the NLRC,
and writ of kalikasan.
➢ With the SC, Sandiganbayan, RTC, and Shari-ah to issue
writs of certiorari, prohibition and mandamus against
lower courts and bodies and writs of quo warranto,
habeas corpus, whether or not in aid of its appellate
jurisdiction, and writ of continuing mandamus on
environmental cases.
➢ With the SC, RTC and Sandiganbayan for petitions for
writs of amparo and habeas data
➢ Freeze order over illegally-acquired properties (RA 1379)
➢ Cases falling under RA 4200.
Exclusive appellate jurisdiction:
➢ by way of ordinary appeal from the RTC and the Family
Courts.
➢ by way of petition for review from the RTC rendered by
the RTC in the exercise of its appellate jurisdiction.
➢ by way of petition for review from the decisions,
resolutions, orders or awards of the CSC, CBAA and other
bodies mentioned in Rule 43 and of the Office of the
Ombudsman in administrative disciplinary cases.
➢ Over decisions of MTCs in cadastral or land registration
cases pursuant to its delegated jurisdiction; this is
because decisions of MTCs in these cases are appealable
in the same manner as decisions of RTCs.
➢ The CA has jurisdiction over orders, directives and
decisions of the Office of the Ombudsman in
administrative cases only. It cannot, therefore, review the
orders, directives or decisions of the Office of the
Ombudsman in criminal or non-administrative cases.
Appellate Jurisdiction of the Court Of Appeals
1. Ordinary Appeal by Notice of Appeal or with Record on
Appeal
2. Special Civil Action of Certiorari (Rule 65)
3. Automatic Review
4. Petition for Review
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CIVPRO |
The appellate jurisdiction of the CA is EXCLUSIVE except in
criminal cases decided by the RTC when the penalty imposed
is reclusion perpetua, life imprisonment or death.
RA 7902, the appeal from the CSC has been transferred to the
CA, so what is left behind in the Constitution are the COMELEC
and the COA.
Power to Try and Conduct Hearings
Sec. 9 last paragraph, BP 129
(a) Even if the CA is not a trial court, it has the power to try
cases and conduct hearings, receive evidence and
perform any and all acts necessary to resolve factual
issues in cases falling within its original and appellate
jurisdiction including the power to grant and conduct new
trials or further proceedings. S
(b) Linger and Fisher vs. IAC, 125 SCRA 522 – the power of
the CA to receive evidence is limited to incidental facts
which were not 100 percent touched upon or matters
overlooked by the trial court.
Instances where the CA may act as trial court
➢ In annulment of judges
➢ When a motion for new trial is granted by the CA
A petition for habeas corpus shall be set for hearing
➢ To resolve factual issues in cases within its original
and appellate jurisdiction
➢ In cases of new trial based on newly discovered
evidence
➢ In cases involving claims for damages arising from
provisional remedies
➢ In writ of amparo proceedings
➢ In writ of kalikasan proceedings
➢ In writ of habeas data proceedings
Regional Trial Courts
Exclusive Original Jurisdiction
Sec. 19 BP 129 as amended by R.A. 7691
(a) Additional original jurisdiction transferred under Sec. 5.2
of the Securities Regulation Code
(b) 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 12,
2002)
(c) Violations of Anti-Money Laundering Act of 2001
Concurrent Original Jurisdiction of the RTC
1. With the Supreme Court in actions affecting
ambassadors, other public ministers and consuls
2. With the Supreme Court and the Court of Appeals in
petitions for certiorari, prohibition and mandamus against
lower courts and bodies in petitions for quo warranto,
habeas corpus, and writ of continuing mandamus on
environmental cases
3. With the Supreme Court, Court of Appeals, and
Sandiganbayan in petitions for writs of habeas data and
amparo
4. With the Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts
5. With the Insurance Commission
RTC: In Criminal Cases
Sec. 20 of BP 129 as amended by R.A. 7691
(a) Criminal Cases not within the exclusive jurisdiction of any
court, tribunal, or body
(b) Criminal cases where the penalty provided by law exceeds
six (6) years imprisonment irrespective of fine
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
(c) 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
(d) Cases where the amount of fine to be imposed exceeds
P4,000.00
In complex crimes, jurisdiction is lodged with the trial court
having jurisdiction to impose the maximum and most serious
penalty.
RTC: In All Civil Actions In Which The Subject Of The
Litigation Is Incapable Of Pecuniary Estimation.
(a) How to determine if action is capable or incapable of
pecuniary estimation? SC adopted a criterion of first
ascertaining the nature of the principal action or remedy
sought.
(b) Thus, if the basic issue is something other than the right
to recover a sum of money, where the money claim is
merely incidental.
Examples: Specific performance, support or foreclosure of
mortgage or annulment of judgment, also actions questioning
the validity of a mortgage, annulling a deed of sale or
conveyance and to recover the price paid and for rescission
which is a counterpart of specific performance. (Russel vs.
Vestil, 304 SCRA 739)
But, this has been modified in Go vs. UCPB wherein the court
declared that foreclosure of REM as well as actions to annul
REM is a real right. So an action to annul a REM necessarily
affects title to the real property, where jurisdiction is
determined by the assessed value of the property.
In All Civil Actions Which Involve Title To Or
Possession Of, Real Property Or Any Interest Therein
(a) Real Actions- one affecting title to or possession of real
property or interest therein.
(b) Where the assessed value exceeds Four hundred
thousand pesos (P400,000). If lesser, MTC has
jurisdiction
(c) Except for Forcible Entry and Unlawful Detainer cases
whose jurisdiction lies with MTC regardless of the value
of the property.
(d) Real actions may include Accion Publiciana, Accion
Reinvindicatoria, Quieting of Title
Admiralty and maritime jurisdiction
(a) Where the demand or claim exceeds Two Million pesos
(2,000,000)
In all matters of probate, both testate and intestate
(a) Where the gross value of the estate exceeds Two Million
pesos (P2,000,000)
In All Actions Involving The Contract Of Marriage And
Marital Relations
Modified by RA 8369 (Sec. 5), The Family Courts Act of 1997.
Family Court have already been constituted, therefore, these
cases are with the jurisdiction of the Family Courts.
In All Civil Actions And Special Proceedings Falling
Within The Exclusive General Jurisdiction Of A
Juvenile And Domestic Relations Court And Of The
Court Of Agrarian Relations as now provided by law.
(a) Also modified by RA 8369, Family Court has jurisdiction
in cases involving minors
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(b) And, with the enactment of the Comprehensive Agrarian
Reform Law, all agrarian disputes were transferred to
DAR particularly the DARAB Except in two cases:
a. petitions for determination of just compensation to
landowners and
b. prosecution of criminal offenses under said Act.
In All Other Cases In Which The Demand Exceeds Two
Million Pesos (P2,000,000)
(a) Money claims or action to collect sum of money.
(b) If value of claim is more than P2,000,000– RTC
(c) If value of claim is = or less than P2,000,0000 – MTC
(d) In determining jurisdictional limit, do not include interest,
damages, attorney’s fees, etc.
However, if damages is the main cause of action (not
incidental as meant by exclusive of damages in money claims)
the amount thereof must be included in determining the
jurisdictional limit of the MTC. (SC Circular No. 09-94:
Guidelines in the Implementation of RA 7691)
Note: If Damages is only incidental to the main case, it should
not be considered in determining which has jurisdiction.
In All Cases Not Within The Exclusive Jurisdiction Of
Any Court, Tribunal, Person Or Body Exercising
Judicial Or Quasi-Judicial Functions.
Original Concurrent Jurisdiction with the Supreme
Court
(a) Issuance of writs of certiorari, prohibition, mandamus,
quo warranto, habeas corpus, and injunction which may
be enforced in any part of their respective regions.
(b) In actions affecting ambassadors and other public
ministers and consuls. (Sec. 21, BP 129)
Note: RTC has original and exclusive jurisdiction to hear and
decide intra-corporate controversies.
Appellate Jurisdiction of the RTC (Sec. 22, Bp 129)
(a) All cases decided by lower courts in their respective
territorial jurisdiction.
(b) Review the case based on the records of the proceedings
submitted by the court of origin.
(c) RTC ruling in exercise of its appellate jurisdiction may be
assailed or questioned in CA through a Petition for
Review. CA may or may not entertain the petition upon
prima facie evidence that RTC has committed an error
fact or law that will warrant a reversal or modification of
the decision or judgment sought to be reviewed.
Metropolitan Trial Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts, Municipal Circuit Trial
Courts
As To Original Jurisdiction – Sec. 33 BP 129 as
amended by RA 11576
(a) Exclusive original jurisdiction over civil actions and
probate proceedings, testate and intestate, including the
grant of provisional remedies in proper cases, where the
value of the personal property, estate or amount of the
demand does not exceed Two Million pesos (P2,000,000)
exclusive of interest, damages of whatever kind,
attorney’s fees, litigation, expenses, and costs, the
amount of which must be specifically alleged: Provided
that interest, damages of whatever kind, attorney’s fees,
litigation expenses, and costs, the amount of which must
be specifically alleged xxx
(b) Exclusive original jurisdiction over cases of forcible entry
and unlawful detainer: Provided that when, in such cases,
the defendant raises the question of ownership in his
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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
(c) Exclusive original jurisdiction in all civil actions which
involve title to, or possession of real property, or any
interest therein where the assessed value of the property
or any interest therein does not exceed Four hundred
thousand pesos (P400,000) exclusive on interest,
damages of whatever kind, attorney’s fees, litigation
expenses and costs: Provided, that in cases of land not
declared for taxation purposes, the value of such property
shall be determined by the assessed value of the adjacent
lots
(d) Exclusive original jurisdiction in admiralty and maritime
actions where the demand or claim does not exceed Two
million pesos (P2,000,000)
As To Delegated Jurisdiction – Sec. 34 BP 129
Delegated Cadastral and land registration cases assigned by
the SC where there is no controversy or opposition and in
contested lots which does not exceed P100,000
As To Special Jurisdiction – Sec. 35 BP 129
Special Petition for habeas corpus in the absence of all RTC
Judges.
In Criminal Cases – Sec. 32, BP 129
Note: Not every action involving real property is a real action
because the realty may only be incidental to the subject
matter of the suit. Example is an action for damages to real
property, while involving realty is a personal action because
although it involves real property, it does not involve any of
the issues mentioned. Fundamental and prime objective must
be related with real property.
K. TOTALITY RULE
(a) “where there are several claims or causes of actions
between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the
totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of
the same or different transactions.” (Sec. 33 par 1 BP
129.)
(b) Rule subject to the rule on joinder of parties
a. joinder of parties is only proper when there is a
common question of fact and law.
Jurisdiction and payment of docket fees
(a) It is not the filing of the complaint or appropriate initiatory
pleading, but the payment of the prescribed docket fee,
that vests a trial court with jurisdiction over the subject
matter or nature of the action.
(b) Even if the amount of damages and attorney’s fees do
not determine jurisdiction, they must still be specifically
alleged in the complaint for the purpose of payment of
docket fees. Thus, the higher the amount one is claiming,
the higher the filing fee.
J. JURISDICTION OVER SMALL CLAIMS, CASES
COVERED BY THE RULES ON SUMMARY PROCEDURE
AND BARANGAY CONCILIATION
Summary Procedure
A.M. NO. 02-11-09-SC
(a) Cases covered: Civil cases
a. Forcible entry and unlawful detainer; and
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CIVPRO |
b. other claims, EXCEPT probate proceedings where
the total claim does not exceed P100,000 or
P200,000 (Metro Manila)
Under RA 7691, the limit is P300,000 or P400,000 for
Metro Manila
(b) Cases covered: Criminal cases
a. Violations of traffic laws, rules and regulations
b. Violations of the rental law
c. Violations of municipal or city ordinance
d. Violations of BP 22
e. All other criminal cases where the penalty is
imprisonment not exceeding 6 months and/or fine of
P1,000 irrespective of other penalties or civil
liabilities arising therefrom; and
f. Offenses involving damage to property through
criminal negligence where the imposable fine is not
exceeding P10,000.
Civil Cases
All disputes involving parties who actually reside in the same
city or municipality.
(a) If the only contending party is the government or
instrumentality, it is exempt from barangay conciliation.
However, if government is only one of the contending
parties, barangay conciliation should still be undertaken
among other parties.
(b) An action for annulment of compromise agreement is
generally not required to undergo barangay conciliation
(c) only involves natural persons and not where any of the
parties is a juridical person
(d) Barangay conciliation is a condition precedent for the
filing of a complaint in court and non-compliance is a
ground for dismissal of the complaint for lack of
cause of action.
(e) Failure to submit for barangay conciliation is not a
requirement for the court to acquire jurisdiction. Thus,
failure to raise it in the Answer is considered a waiver.

Small Claims Cases Cases covered:

A.M. NO. 08-8-7-SC
To be filed with the MeTC, MTCC, MTC, MCTC
1. Purely civil in nature where the claim or relief prayed for
is solely for the payment of sum of money
2. Civil aspect of criminal actions either filed before the
institution of the criminal action or reserved upon the
filing of the criminal action in court pursuant to Rule 111
of the Rules of Criminal Procedure.
These claims or demands may be:
Criminal cases:
When punishable by imprisonment of not more than one year
or fine of not more than Php5,000
Q: What is the object of the Katarungang Pambarangay Law?
The object of the Katarungang Pambarangay Law is to effect
an amicable settlement of disputes among family and
barangay members at the barangay level without judicial
recourse and consequently help relieve the court of docket
congestion.

For money owed under For damages arising from

any of the following: any of the following:

a) Contract of Lease
b) Contract of Loan
c) Contract of Services
d) Contract of Sale or
e) Contract of Mortgage
a) Fault or negligence
b) Quasi-contract
c) Contract

3. The enforcement of a barangay amicable settlement or

an arbitration award involving money claim. Limit –
P300,000 or P400,000 Metro Manila

Katarungang Pambarangay Law

Where to file:
(a) Civil Cases
a) Disputes between residents of the same barangay:
must be brought for settlement in the said barangay
b) Disputes between residents of different but adjoining
barangays and the parties agree to submit their
differences to amicable settlement within the same
city or municipality where any of the respondents
reside at the election of the complainant.
c) Disputes involving real property or any interest when
the parties agree to submit their differences to
submit to amicable settlement by an appropriate
lupon shall be brought in the barangay where the
real property or larger portion thereof is situated and
d) Disputes arising at the workplace where the
contending parties are employed or at the institution
where such parties are enrolled for study shall be
brought in the barangay where such workplace or
institution is located.

Cases covered:
15
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
CIVPRO |
The rules in special civil actions is more or less the same in
MODULE 2 the special proceedings.

Meaning of criminal actions

ACTIONS Sec. 3[b], Rule 1, Rules of Court
A criminal action is one by which the State prosecutes a
person for an act or omission punishable by law.
ACTIONS
Action, defined
Civil action v. Criminal action
An action is the legal and formal demand of one’s right from
another person made and insisted in a court of justice. Civil Action Criminal Action

“Action” and “suit” are synonymous but the operative act When the purpose of the When the purpose of the
which converts a claim into an “action” or “suit” is the filing of proceedings is primarily proceedings is primarily
the same with a court of justice. Filed elsewhere, as with some compensatory or remedial. punishment.
other body or office not a court of justice, the claim may not
be properly categorized under either term. Purpose of civil and criminal action
Sec. 3[a(b)], Rule 1, Rules of Court
The kinds of actions are ordinary and special, civil and 1. Civil Action. The purpose of an action is either to protect
criminal, ex contractu and ex delicto, penal and remedial, real, a right or prevent or redress a wrong.
personal ,and mixed action, action in personam, in rem and 2. Criminal Action. The purposes is to prosecute a person
quasi in rem. for an act or an omission punishable by law.

Meaning of ordinary civil actions Significance of the distinction

Sec. 3[a], Rule 1, Rules of Court
A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or
redress of a wrong.
A civil action may be either ordinary or special.
Q: Why are they called special civil actions?
Because they are governed by special rules not found in
ordinary civil actions. But it doesn’t mean that in special civil
actions, the rules on ordinary civil actions no longer apply.
They still apply, but only suppletorily.
Suppletory application of rules of ordinary civil actions
in special proceedings
Sec. 2, Rule 72, Rules of Court
In the absence of special provisions, the rules provided for in
ordinary actions shall be, as far as practicable, applicable in
special proceedings. A demurrer of evidence in Rule 33 may
apply in special proceedings. [Bar 2015]
Example: Case by Judge, the lawyer petitioned for special
proceeding, and another heir just appeared in the initial
hearing. The lawyer of the oppositor that they will file a formal
opposition. But they failed to do inspite of the court allowed
them to do so. Petitioner moved to declare them in default. In
response, the oppositor filed its comment to object the motion
claiming that the rules does not allow these types of motion
to declare in default. Judge applied the rules in ordinary civil
actions to apply in the case. This is because the rules in special
proceeding was silent in the case.
Special civil actions in the Rules of Court
1. Interpleader;
2. Declaratory relief and similar remedies;
3. Review of judgments and final orders or resolutions of the
Commission on Elections and the Commission on Audit;
4. Certiorari, prohibition, and mandamus;
5. Quo warranto;
6. Expropriation;
7. Foreclosure of real estate mortgage;
8. Partition;
9. Forcible entry and unlawful detainer; and
10. Contempt.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
They have different set of rules.
Purpose of Special Proceeding
Sec. 3[c], Rule 1, Rules of Court
The purpose of a special proceeding is to establish a status, a
right, or a particular fact.
(a) The determination of who the legal heirs of the deceased
are must be made in the proper special proceedings in
court and not in an ordinary suit for the recovery of
ownership and possession of real property.
(b) Matters relating to the rights of filiation and heirship must
be in the proper special proceeding instituted precisely for
the purpose of determining such rights. Thus, a status of
an illegitimate child claiming for heirship could not be
adjudicated in an ordinary civil action like recover of
property.
There is no real defendant because it is to establish a status,
a right, or particular fact.
Special Proceedings under the Rules of Court
Sec. 1, Rule 72, Rules of Court
1. Settlement of estate of deceased persons;
2. Escheat;
3. Guardianship and custody of children;
4. Trustees;
5. Adoption;
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons;
8. Habeas corpus;
9. Change of name;
10. Voluntary dissolution of corporations;
11. Judicial approval of voluntary recognition of minor natural
children;
12. Constitution of family home;
13. Declaration of absence and death; and
14. Cancellation or correction of entries in the civil registry.
Special proceedings in other cases
The enumeration are not exclusive and the other types.
1. Arbitration [Sec. 22 of RA 876, The Arbitration Law]
2. Proceedings for recognition and enforcement of an
arbitration agreement or for vacation, setting aside,
correction or modification of an arbitral award, and any
application with a court for arbitration assistance and
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CIVPRO |
supervision shall be deemed as special proceedings. [Sec.
47, RA 9285, ADR act of 2004]
3. Petition for a writ of amparo.
a. It is a remedy by which a party seeks to establish a
status, a right of particular fact. It is not a civil or
criminal action; the summary nature of the petition
does not make the Revised Summary Procedure
applicable. (De Lima v. Gatdula)
4. A verified petition for approval of the bond filed by a
parent to exercise legal guardianship over the property of
his emancipated children. [Art. 225, Family Code]
5. A liquidation proceeding involving a bank involving the
administration and disposition of an insolvent’s assets for
the benefit of its creditors. (Consolidated Bank and Trust
Corporation v. CA)
6. Writ of habeas data.
Significance of special proceeding
Magdaleno Ypon v. Ricaforte
Determination of the legal heirs must be filed with the proper
special proceedings and not in an ordinary suit for the recovery of
ownership and possession of real property.
Magdaleno modified, case in 2020
Heirs wanted to enforce their right in a suit for reconveyance,
annulment of sale, as the legal heirs of the decedent, registered
owner, in an ordinary civil action. However, the SC ruled that they
could not do so, they must first file the appropriate proceeding,
which is a special proceeding, in order for them to be recognized
as legal heirs. Their right is anchored on their status. SC dismissed
the claim.
REAL ACTIONS AND PERSONAL ACTIONS [Bar 1994]
Real action
Sec. 1, Rule 4, Rules of Court
An action is real when it affects title to or possession of real
property, or an interest therein.
Personal action
Sec. 2, Rule 4, Rules of Court
All other actions are personal actions.
If the action does not involve a claim of or recovery of
ownership of or title to real property, it is a personal action.
Real actions example:
(a) Actions for unlawful detainer,
(b) Forcible entry,
(c) Accion publiciana,
(d) Accion reinvidindicatoria,
(e) Quieting of title or
(f) Removal of a cloud on a title.
Real actions other examples
a) Action is real when it is founded upon the privity of real
estate. That means that realty, or an interest therein, is
the subject matter of the action.
a. Not every action involving real property is a “real
action” because they may only be incidental to the
subject matter of the suit.
b) It is important that the matter in litigation must also
involve or affect any of the following issues:
a. Title to or possession of real property, or interest
therein. [Sec. 1, Rule 4, Rules of Court]
c) Those affecting title, or for recovery of possession, or for
partition or condemnation of, or foreclosure of mortgage,
on real property.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
a. An action for damages to real property, while
involving realty, is a personal action because,
although it involves real property, it does not involve
any of the issues mentioned.
d) An action to foreclose a real estate mortgage.
a. But an action to compel the mortgagee to accept
payment of the mortgage debt and release the
mortgage is a personal action. (Hernandez v. Rural
Bank of Lucena, Inc.)
b. An action to annul a real estate mortgage foreclosure
sale is a real action. This is because the action is
intertwined with the issue of ownership, which is the
recovery of the property is its primary objective.
e) Claim of the title to and the possession of the land.
a. Although the main relief sought in the action is the
delivery of the certificate of title, said relief depends
upon who between the parties, has a better right to
the lot. It is impossible for the Court to decide the
main relief without passing the claim of parties with
respect to the title and possession of the land. Hence
a real action. (Espineli v. Santiago)
f) When the sale is fictitious, consequently, a non-existent
contract.
a. There being no contract between the parties, there
is nothing to annul the action. Hence, the action
cannot be an action for the annulment of sale, rather,
for the recovery of the fishpond, a real action.
(Pascual v. Pascual)
Personal actions, examples
a) An action to recover possession of a personal property.
b) An action for declaration of the nullity of marriage.
a. As such, it may be commenced and tried where the
plaintiff or any of the principal plaintiffs resides, or
where any of the principal defendants resides, at the
election of the plaintiff. (Tamano v. Ortiz)
c) An action for specific performance with damages is a
personal action as long as it does not involve a claim of
or recovery of ownership of or title to real property.
(Siasoco v. CA, citing La Tondena Distillers v. Ponferrada)
a. A complaint denominated for a specific performance,
but prays for the issuance of a deed of sale of a land,
to acquire ownership thereof, its primary and nature
is to recover a land, is a real action. (Gochan v.
Gochan)
b. It is a personal action if the primary action is to
enforce the contract to execute a deed of sale.
(Spouses Saraza v. Francisco)
c. When the allegations in the complaint do not claim
ownership of the land, but seeks for the execution of
a deed of sale, personal action. (Andamos v. JM
Tuason)
d) Breach of contract.
a. Where the complaint alleged that there is breached
of contract and the party prays for its rescission and
the party be ordered to return the land, the ultimate
purpose is to recover possession of real property,
and not a mere breach of contract. (De Jesus v.
Coloso)
b. Action is to annul a sale but the prime objective is to
recover real property, action is real. Thus, there is a
need to file at the proper venue.
e) Annul the cancellation of the award of a house and lot.
This is because it does not involve title to, ownership, or
possession of real property. Action is to compel the
recognition of the validity of the previous award by
seeking a declaration that the cancellation is null and
void. (Hernandez v. Development Bank of the
Philippines) [Bar 1976; 1978]
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f) An action to annul a contract of loan, and its accessory
real estate mortgage.
Rule on annulment of deed of real estate mortgage
a) Personal action – Where the action is merely to annul a
deed of real estate mortgage, the action is a personal
action if ownership has not yet passed to another.
b) Real action – when ownership had already been
transferred, the primary purpose of the action becomes
the recovery of said ownership.
Significance: distinction of personal and real actions
It is important for the purpose of determining the venue of
the action. Jurisdictions over real actions will involve
determination of the assessed value of the property.
LOCAL AND TRANSITORY ACTIONS
Local action – Real action
Sec. 1, Rule 4, Rules of Court
A real action is “local,” i.e., its venue depends upon the
location of the property involved in the litigation because
“Actions affecting title to or possession of real property, or
interest therein, shall be commenced and tried in the proper
court which has jurisdiction over the area wherein the real
property involved, or a portion thereof, is situated.” [Italics
supplied]
Regardless of the residence of the parties, the action must be
filed in the place where the property is situated.
Transitory action – Personal action
Sec. 2, Rule 4, Rules of Court
A personal action is “transitory,” i.e., its venue depends upon
the residence of the plaintiff or the defendant. A personal
action “may be commenced and tried where the plaintiff or
any of the principal plaintiff resides, or where the 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. [Bar 1994]
Steps in determining the venue of an action
1. Determine if the action is real or personal; and
2. An application of the rules on venue under Rule 4 of the
Rules of Court.
Example:
a) Action for a sum of money.
a. Personal action.
b. If it is instituted by a Manila resident against a QC
resident, the venue of the action is either Manila or
Quezon, at the election of the plaintiff.
b) Forcible entry.
a. Real action.
b. If it is instituted by a Manila resident against a QC
resident, the venue of the action is neither of these
places if the property subject of the action is located
in Makati city. Makati city is the venue.
c. Forcible entry and detainer actions shall be tried in
the MTC wherein the real property is situated. [Sec.
1, Rule 4, Rules of Court.]
c) Recovery of possession.
a. Real action.
b. Recovery of possession of the leased premises
located in Davao City, and the payment of accrued
rentals. The venue of the action is in Davao. [Bar
1991]
d) Recovery of ownership.
a. Real action.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
b. An action to annul a sale of land located in Baguio,
where recover of ownership is essentially material
issue in the case, it must be filed in Baguio.
e) Annulment the cancellation of the award.
a. Personal action.
b. Where an award of a house and lotto the plaintiff
was unilaterally cancelled, an action that seeks to
annul the cancellation of the award over the house
and lot is a personal action. The action does not
involve title to, ownership or possession of real
property. Venue is the residence of the plaintiff or
that of the defendant, at the option of the plaintiff.
[Bar 1976; 1978]
f) Recovery of deficiency after extrajudicial
foreclosure
a. Personal action.
b. An action to recover the deficiency after the
extrajudicial foreclosure of the real property
mortgage is a personal action because it does not
affect title to or possession of real property, or any
interest therein. (Hernandez v. DBP)
Docket fees
Heirs of Bertuldo v. Melicor
Real actions prescribe in third years. Therefore, the non-
payment of docket fees through no fault of the plaintiff, will not
result in the dismissal of the complaint for as long as they were in
good faith and relief merely on the assessment of the clerk of
court.
ACTIONS IN REM, IN PERSONAM AND QUASI IN REM
Action in personam
An action in personam is a proceeding to enforce personal
rights and obligations brought against the person is based on
the jurisdiction of the person. In actions in personam, the
judgment is for or against a person directly.
Purpose of in personam
Its purpose is to compose, through the judgment of the court,
some responsibility or liability directly upon the person of the
defendant.
Jurisdiction in action in personam
Jurisdiction over the parties is required because they seek to
impose personal responsibility or liability upon a person.
Examples of action in personam
a) Actions for collection of a sum of money and damages;
b) Action for unlawful detainer or forcible entry;
c) Action for specific performance;
d) Action to enforce a foreign judgment in a complaint for
breach of contract
e) Cases involving an auction sale of land for the collection
of delinquent taxes. Notice by publication is necessary to
send the notice of tax delinquency directly to the tax
payer.
f) An action for reconveyance whose property has been
wrongfully registered under the Torrens system in
another’s name.
g) An action for injunction.
h) Petition for annulment of a judgment.
a. Any judgment will bid only the parties properly
impleaded
Actions in rem
Actions in rem are actions against the thing itself. They are
binding upon the whole world.
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The “thing” is not the party; only legal or natural persons may
be parties in rem actions.
Example of action in rem
Petitions which concern status of a person.
a) Petition for adoption
b) Correction of entries in the birth certificate
a. E.g. date of birth, an action against a thing, and not
against a person.
c) annulment of marriage, nullity of marriage
d) petition to establish illegitimate filiation
e) registration of land under the Torrens system
f) forfeiture proceedings
g) a land registration case or probate of a will is also an
action in rem. [Bar 1994]
h) proceedings under the Financial Rehabilitation Rules of
Procedure of 2013
Publication, binds the whole world as a party
In land registration proceedings, failure to give a personal
notice to the owners or claimants of the land is not a
jurisdictional defect. It is the publication of such notice that
brings in the whole world as a party in the case, and vests the
court with jurisdiction. (Adez Realty, Inc. v CA)
a. In quasi in rem, jurisdiction over the person of the
non-resident defendant is not essential. Service
summons on a non-resident defendant who is not
found in the country is required, not for the purpose
of physically acquiring jurisdiction over his person,
but simply in pursuance of the requirements of fair
play, so that he may be informed of the pendency of
the action against him and the possibility that
property belonging to him or in which he has an
interest may be subjected to a judgment in favor of
a resident, and that he may thereby be accorded an
opportunity to defend in the action, should he be so
minded. (Biaco v. Philippine Countryside Rural Bank)
c) action for partition and action for accounting
a. Such actions are essentially for the purpose of
affecting the defendant’s interest in the property and
not to render a judgment against him. (Valmonte v.
CA)
d) An action for annulment of certificate of title is quasi in
rem.
a. It is an action that subjects a person’s interest over
a property to a burden. Such action for annulment of
certificate of title threatens petitioner’s interst in the
property. (De Pedro v. Romasan Dev’l. Corp.)

The decision of the court, after finality, binds not only the
parties, but the whole world. Everyone is legally bound to
acknowledge and give effect to the judgment. Thus, in
correction in the date of certificate under a final judgment, a
government agency is bound to give effect to the said
judgment. (CSV v. Magoyag)
Quasi in rem
A proceeding quasi in rem is one brought against persons
seeking to subject the property of such persons in the
discharge. However, later on, the effect will be binding upon
the whole world.
An action quasi in rem names a person as defendant, but its
object is to subject that person’s interest in a property to a
corresponding lien obligation. (Lucas v. Lucas)
Unlike suits in rem, a quasi in rem judgment is conclusive only
between the parties.
Significance of distinction between actions in rem, in
personam and quasi in rem
In order to determine whether or not the jurisdiction over the
person of the defendant is required and consequently to
determine the type of summons to be employed.
(a) Sec. 6, Rule 14, Rules of Court
Against a resident defendant in an action in personam,
this jurisdiction is acquired by service in person on the
defendant.
(b) Sec. 7, Rule 14, Rules of Court
In case he (person in [a]) cannot be served in person
within a reasonable time, by substituted summons.
(c) Sec. 20, Rule 14, Rules of Court
Without a valid service of summons, the court cannot
obtain jurisdiction over the person of the defendant,
unless he voluntary appears in the action. This voluntary
appearance is equivalent to service of summons.
Asiavest Limited v. CA

Example: Foreclosure of mortgage In action in persona against a non-resident who does not
voluntarily submit himself to the authority of the court, personal
service within the state is essential to the acquisition of jurisdiction
In personam In rem Quasi in rem over his person. This method is possible, if such defendant is
physically present in the country. If he is not found therein, the
It names a person as court cannot acquire jurisdiction over his person and, therefore,
It is directed
It is lodged defendant, but its object cannot acquire jurisdiction over his person and, therefore, cannot
against the
against a person is to subject that person’s validly try the case against him.
thing itself
based on interest in a property to a
instead of the
personal liability. corresponding lien or
person.
obligation. Gomez v. CA
In an action for specific performance against a non-resident
Jurisdiction who is not found within the Philippines, summons by publication
will not enable the court to acquire jurisdiction over him.
In personam In rem Quasi in rem

Jurisdiction over the Jurisdiction over the person of the Innovations of the court to have convenience in
person of the defendant defendant is not a prerequisite to service of summons.
is necessary for the court confer jurisdiction on the court Service upon foreign private juridical entities.
to validly try and decide provided that the court acquires Sec. 14, Rule 14 of the New Rules of Court
the case. jurisdiction over res.
When the defendant is a foreign private juridical entity which
has transacted or is doing business in the Philippines, as
Examples of actions quasi in rem defined by law, service may be made on its resident agent
a) suits to quiet title designated in accordance with law for that purpose, or, if
b) actions for foreclosure and attachment proceedings there be no such agent, on the government official designated

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by law to that effect, or on any of its officers, agents, directors
or trustees within the Philippines.
If the foreign private juridical entity is not registered in the
Philippines, or has no resident agent but has transacted or is
doing business in it, as defined by law, such service may, with
leave of court, be effected outside 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;
(d) By electronic means with the prescribed proof of service;
or
(e) By such other means as the court, in its discretion, may
direct. (12a)
Service upon foreign private juridical entities.
Sec. 16, Rule 14 of the New Rules of Court
In any action where the defendant is designated as an
unknown owner, or the like, or whenever his or her
whereabouts are unknown and cannot be ascertained by
diligent inquiry, within ninety (90) calendar days from the
commencement of the action, service may, by leave of
court, be effected upon him or her by publication in a
newspaper of general circulation and in such places and for
such time as the court may order.
Any order granting such leave shall specify a reasonable time,
which shall not be less than sixty (60) calendar days after
notice, within which the defendant must answer. (14a)
Extraterritorial service.
Sec. 17, Rule 14 of the New Rules of Court
When the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the
plaintiff or relates to, or the subject of which is, property
within the Philippines, in which the defendant has or claims a
lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the
defendant has been attached within the Philippines, service
may, by leave of court, be effected out of the Philippines by
personal service as under Section 6; or as provided for in
international conventions to which the Philippines is a party;
or by publication in a newspaper of general circulation in such
places and for such time as the court may order, in which case
a copy of the summons and order of the court shall be sent
by registered mail to the last known address of the defendant,
or in any other manner the court may deem sufficient. Any
order granting such leave shall specify a reasonable time,
which shall not be less than sixty (60) calendar days after
notice, within which the defendant must answer. (15a)
Classification of action
1. According to the object of the action
a. In personam action
b. In rem action
2. According to foundation
a. Personal action
b. Real action
It does not mean that an action in personam is a personal
action. Likewise, an action in rem is a real action.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Action in rem, but real action
(a) An action to recover title to or possession of real property
is a real action, but it is an action in personam. It is not
brought against the whole world, but against the person
upon whom the claim is made. [Bar 1994]
(b) An action to recover a parcel of land is a real action, but
it is an action in personam, for it binds a particular
individual only, although it concerns the right to a tangible
thing. (Republic v. CA)
(c) An action for the declaration of nullity of a marriage is a
personal action because it is not founded on real estate.
And it is in rem action because the issue of the status of
a person is one directed against the whole world. One’s
status is a matter that can be set up against anyone in
the world.
(d) An action in personam is not necessarily a personal
action. Nor is a real action necessarily an action in rem.
The distinction is important to determine whether or not
jurisdiction over the person of the defendant is required
and consequently to determine the type of summons to
be employed.
Action in personam, personal action
(a) An action for damages.
(b) An action for specific performance.
(c) An action for injunction, also a suit for injunction [Bar
1997]
Action in rem or quasi in rem, treated as in personam
An action in rem or quasi in rem is treated as an action in
personam if the defendant presents himself in the action. If
there is no appearance of the defendant, the case becomes in
its essential nature, a proceding in rem.
Independent Civil Action
Sec. 2, Rule 111, Rules of Court
In the cases provided for in Articles 31, 32, 33, 34 and 2177
of the Civil Code of the Philippines, an independent civil action
entirely separate and distinct from the criminal action, may be
brought by the injured party during the pendency of the
criminal case, provided the right is reserved as required in the
preceding section. Such civil action shall proceed
independently of the criminal prosecution, and shall require
only a preponderance of evidence.
To sum up:
The question of whether the trial court has jurisdiction
depends on the nature of the action
– whether the action is in personam, in rem, or quasi in rem.
The rules on service of summons under Rule 14 likewise apply
according to the nature of the action.
An action in personam is an action against a person on the
basis of his personal liability. An action in rem is an action
against the thing itself instead of against the person. An action
quasi in rem is one wherein an individual is named as
defendant and the purpose of the proceeding is to subject his
interest therein to the obligation or lien burdening the
property.
In an action in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide
the case, as well as to determine what summons to serve. In
a proceeding in rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite to confer
jurisdiction over the res. Jurisdiction over the res is acquired
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either (1) by the seizure of the property under legal process,
whereby it is brought into actual custody of the law; or (2) as
a result of the institution of legal proceedings, in which the
power of the court is recognized and made effective.
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

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c. Thereafter, the defendant remained in possession
MODULE 2 and deprived the plaintiff of the enjoyment of the
property; and
d. The plaintiff instituted the complaint for ejectment
CAUSE OF ACTION within 1 year form the last demand to vacate the
property. (Diaz v. Spouses Punzalan)
e. There must be a demand to vacate, the intention is
Action v. Cause of Action
to vacate and the purpose is to regain possession.
(a) Action.
An action is the suit filed in court for the enforcement or
Others examples of causes of action where it does not
protection of a right, or the prevention or redress of a
establish the 3 elements
wrong.
1. Applied to administrative cases
(b) Cause of action.
a. Not so strictly enforced that one must clearly state
It is the basis of the action filed.
that the complainant has a cause of action against
respondent. It is sufficient that the respondent has
Sec. 1, Rule 2, Rules of Court
violated a standard or norm of a particular office.
It requires that every ordinary civil action must be based on a
2. Based on contracts
cause of action.
a. It is not necessary that there must be proof that
there is negligence on the part of the defendant. In
Cause of action, defined
a contract of carriage, it is a presumption that there
Sec. 1, Rule 2, Rules of Court
is diligence. If he fails to observe diligence and the
A cause of action is the act or omission by which a party
passenger is injured, then there is a breach of
violates the rights of another.
contract of carriage. And the negligence is already
presumed.
Elements of a cause of action
3. Based on the vicarious liability of an employer.
(1) A legal right in favor of the plaintiff
(2) A correlative legal duty of the defendant to respect such a. Negligence of the employee should be attributed to
the employer. There is no need to include in the
rights
complaint the elements of the cause of action.
(3) An act or omission by such defendant in violation of the
4. For a sum of money based on a promissory note.
right of the plaintiff with a resulting injury or damage to
a. Just attached the promissory note. It would not be
the plaintiff for which the latter may maintain an action
basis for dismissal for failure to state a cause of
for the recovery of relief from the defendant. [Without
action.
this element, a cause of action will not arise.]
5. For malicious prosecution.
Although the first 2 elements may exist, a cause of action
Elements of Right of Action
arises only upon the occurrence of the last element, giving the
a. Plaintiffs must have a good cause of action.
plaintiff the right to maintain an action in court for recovery of
b. Plaintiff must have performed all conditions
damages or other appropriate relief.
precedent to the filing of the action in court.
Need to state the cause of action
Right of action v. Cause of Action
The complaint must clearly state the cause of action. This
A cause of action refers to the delict or wrong committed by
means that all the elements of the cause of action required by
the defendants, whereas right of action refers to the right of
substantive law must clearly appear from a reading of a
the plaintiff to institute the action.
complaint.
A cause of action is created by substantive law whereas right
Example of cause of action
of action is regulated by procedural law. Also, a right of action
a) An action for a sum of money arising from a loan.
may be lost by prescription while cause of action cannot.
a. Allege that the debt is due and demandable in the
complaint. The complaint must contain that there
1999 Bar: Distinguish action from cause of action.
was a prior demand upon debtor to pay and such
An action is one by which a party sues another for the
demand was unheeded.
enforcement of protection of a right or the prevention or
b) Forcible entry. Three elements must be alleged in the
redress of a wrong. A cause of action is the act or omission by
complaint:
which a party violates a right of another. An action must be
a. Plaintiff must allege his prior physical possession of
based on a cause of action.
the property;
b. Plaintiff must also assert that he deprived of the
Test of the sufficiency of cause of action
possession of the property either by force,
Test on whether or not the complaint states a cause of
intimidation, threat, strategy, or stealth
action
c. Plaintiff must file the action within 1 year from the
Admitting the truth of the facts alleged, can the court render
deprivation of possession or from the time he learned
a valid judgment in accordance with the prayer? Stated
of his deprivation of physical possession of the land
otherwise, may the court render a valid judgment upon the
or building.
facts alleged therein?
c) Unlawful detainer: elements must be alleged.
a. Defendant’s initial possession of the property was
To be taken into account are only the material allegations in
lawful, either by contract with or by tolerance of the
the complaint; extraneous facts and circumstances or other
plaintiff;
b. Eventually, such possession became illegal upon the matters aliunde are not considered.
plaintiff’s notice to the defendant of the termination
Determining a sufficient cause of action
of the latter’s right of possession;

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The statements in the complaint are to be considered. It is
error for the court to take cognizance of external facts or to
hold preliminary hearings to determine its existence.
The sufficiency of the statement of the cause of action must
appear on the fact of the complaint and its existence may be
determined only by the allegations in the complaint,
consideration of other facts being proscribed and any attempt
to prove extraneous circumstances not being allowed.
Other matters aside from allegations in the complaint
Exceptions to matters aliunde to be considered
Not a hard fast rule. There are some cases other matters aside
from the allegations of the complaint are considered.
(a) The documents attached to the complaint to truly
determine the sufficiency of the cause of action.
(b) The court may consider, in addition to the complaint, the
appended annexes or documents, other pleadings of the
plaintiff, or admission in the records. This is because such
annexes are parts of the complaint.
Rare exception
Alberto v. CA
The court considered the responsive pleading as they “clarify
the merits of the cause of action since they are already party of
the records of the case and should therefore be considered.
Failure to state a cause of action
Sec. 1[g], Rule 16, Rules of Court
The ground for dismissal, in relation to a cause of action, is
not “lack or absence of cause of action.” The ground is that
“the pleading asserting the claim states no cause of action.”
Thus, failure to state a cause of action is not the same as an
absence or lack of a cause of action.
Insufficiency, ground for dismissal
Failure of a complaint to state of a cause of action means that
the complaint’s allegations are insufficient for the court to
know that the rights of the plaintiff were violated by the
defendant. The insufficiency of the allegations in the pleading
is ground for dismissal.
• Remedy: Affirmative defense. (motion to dismiss). New
Rules, Sec. 12 (4), Rule 8 – Manner of making allegations
in pleadings.
Lack of cause of action, not a ground for dismissal
Lack of cause of action refers to a situation where the
evidence does not prove the cause of action alleged in the
pleading. It also refers to the insufficiency of the factual basis
for the action.
• Remedy: to demur to the evidence.
Failure to State Cause of Lack of Cause of Action
Action
Refers to the insufficiency of Refers to a situation where
the allegations in the the evidence failed to prove
pleading. the cause of action.
The proper remedy when The proper remedy when
there is a failure to state a the complaint is not based
cause of the action is to on a cause of action is to file
allege the same as in a Demurrer of Evidence.
affirmative defense in the
Answer.
Effect of finding a cause of action in the complaint
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
A finding that the complaint states no cause of action is a
ground for the dismissal of the said complaint. However, a
finding that the complaint sufficiently states a cause of action
does not necessarily mean that the complaint is meritorious;
it shall only result in the hearing of the case for presentation
of evidence by the parties. (Manaloto v. Veloso III)
Thus, the claiming party has the obligation to offer evidence
to support the allegations of his cause of action.
There is no need to require the presentation of evidence to
determine whether the complaint states a cause of action
because the complaint will disclose the compliance or non-
compliance of the required statement of the cause of action.
Failure to state a cause of action and lack of a cause of
action
Heirs of Dolleton v. Fil-Estate Management, Inc.
The elementary test for failure to state a cause of action is
whether the complaint alleges facts which if true would justify the
relief demanded. 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 defense that may be
presented by the defendant.
Importance of the Allegations in the complaint
The cause of action in a complaint is what the allegations in
the body of the complaint define and describe, not what the
designation of the complaint states.
Splitting a single cause of action and its effects
Splitting a single cause of action
Sec. 4, Rule 2, Rules of Court
Splitting a single cause of action is the act of instituting two
or more suits on the basis of the same cause of action.
In splitting a cause of action, the pleader divides a single
cause of action, claim or demand into 2 or more parts and
brings a suit for each part. It applies to complaints,
(compulsory) counterclaims and cross-claims.
Dela Cruz v. CA
A cause of action for the reconveyance of title over property
does not include a cause of action for forcible entry or unlawful
detainer.
This is not splitting, because you can file a separate case for
forcible entry and unlawful detainer. There is no legal basis
that both have the same cause of action. Thus, it is allowed
to file separate actions.
You cannot file a separate case of forcible entry and damages,
it has the same cause of action. Splitting of the cause of action
is not allowed.
[Judge said compare Benedicto and Progressive Corp]
Benedicto v. Treyes
It bears noting, however, that as reflected in the earlier-
quoted allegations in the complaint for damages of herein
petitioners, their claim for damages have no direct relation to their
loss of possession of the premises.
It had to do with respondent's alleged harvesting and carting
away several tons of milkfish and other marine products in their
fishponds, ransacking and destroying of a chapel built by petitioner
CGR Corporation, and stealing religious icons and even
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decapitating the heads of some of them, after the act of
dispossession had occurred.
Thus, Res judicata may not apply because the court in a
forcible entry case has no jurisdiction over claims for damages
other than the use and occupation of the premises and attorney's
fees. Neither may forum-shopping justify a dismissal of the
complaint for damages, the elements of litis pendentia not being
present, or where a final judgment in the forcible entry case will
not amount to res judicata in the former.
Petitioners' filing of an independent action for damages other
than those sustained as a result of their dispossession or those
caused by the loss of their use and occupation of their properties
could not thus be considered as splitting of a cause of action
Progressive Development Corp. Inc. v. CA
A party may not institute more than one suit for a single cause
of action. Under Sec. 4 of the same Rule, 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 other or others.
There is no question at all that private respondent's cause of
action in the forcible entry case and in the suit for damages is the
alleged illegal retaking of possession of the leased premises by the
lessor, petitioner herein, from which all legal reliefs arise. Simply
stated, the restoration of possession and demand for actual
damages in the case before the MeTC and the demand for
damages with the RTC both arise from the same cause of action,
i.e., the forcible entry by petitioner into the leased premises.
Splitting a cause of action, prohibited
Sec. 3, Rule 2, Rules of Court
A party may not institute more than 1 suit for a single cause
of action.
Rationale of the prohibition
It is discouraged because it breeds multiplicity of suits, clogs
the court dockets, leads to vexatious litigation, operates as an
instrument of harassment, and generates unnecessary
expenses to the parties.
Dynamic Builders v. Presbitero, Jr
Splitting of a single cause of action violates the policy against
multiplicity of suits, whose primary objective is to avoid unduly
burdening the dockets of the court.
Example of splitting a single cause of action
(a) A bank cannot file a civil action against the debtor for the
collection of debt and, then, subsequently file an action
to foreclose the mortgage. This would be splitting a single
cause of action. (Danao v. CA)
Effect of splitting a single cause of action [Bar 1998,
1999]
Sec. 4, Rule 2, Rules of Court
1. If 2 or more suits are instituted for a single cause of
action, “the filing of one or a judgment upon the merits
in any one is available as a ground for dismissal of the
others. Remedy of the defendant is to file a motion to
dismiss (grounds include: litis pendentia or res judicata)
2. It need not be the 2nd action filed should be dismissed. A
defendant may move for the dismissal of the first case
and as to which action should be dismissed would depend
upon judicial discretion and the prevailing circumstances
of the case.
3. The remedy of the defendant is to file a motion to dismiss
on the ground of litis pendencia, res judicata or forum
shopping.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
1999 Bar: What is the rule against splitting a cause of action
and its effect on the respective rights of the parties for failure
to comply with the same?
The rule against splitting a cause of action and its effect is that
if two or more suits are instituted on the basis of the same
cause of action, the filing of one or a judgment on the merits
in any one is available as a ground for the dismissal of the
others.
Three tests
Three tests to ascertain whether 2 suits relate to a single or
common cause of action.
1. Whether the same evidence support and sustain both the
first and second causes of action (the same evidence test)
2. Whether the defenses in one case may be used to
substantiate the complaint in the other.
3. Whether the cause of action in the second case existed
at the time of the filing of the first complaint.
Umale v. Canoga Park Development Corp
There is no splitting cause of action when the cause of action
of unlawful detainer in the second case has not yet existed at the
time of filing of the first unlawful detainer case.
Remedy against splitting a cause of action:
The defendant may file a motion to dismiss based on either of
the following grounds:
1. Litis pendentia
2. Res judicia
Effect of failure, there is a waiver on the right to question.
Thus, there is a need to timely submit it.
Prohibited motions.
Section. 12. Rule 15 of the New Rules of Court
The following motions shall not be allowed:
(a) Motion to dismiss except on the following grounds:
1) That the court has no jurisdiction over the subject
matter of the claim;
2) That there is another action pending between the
same parties for the same cause; and
3) That the cause of action is barred by a prior
judgment or by the statute of limitations;
Section. 5 (b). Rule 6 of the New Rules of Court
Section. 12 (d). Rule 8 of the New Rules of Court
As to the other affirmative defenses under the first paragraph
of Section 5(b), Rule 6, the court may conduct a summary
hearing within fifteen (15) calendar days from the filing of the
answer. Such affirmative defenses shall be resolved by the
court within thirty (30) calendar days from the termination of
the summary hearing.
Section. 12 (c). Rule 8 of the New Rules of Court
When the party file an affirmative defense
Trial will not proceed if the incidents are not resolved with the
court.
Joinder and misjoinder of causes of action
Joinder of causes of action
Sec. 5, Rule 2, Rules of Court
Joinder of causes of action is the assertion of as many causes
of action as a party may have against another in 1 pleading.
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It is the process of uniting 2 or more demands or rights of
action in 1 action. This is merely permissive.
Sec. 5[b], Rule 2, Rules of Court
The joinder shall not include special civil actions or actions
governed by special rules. Thus, a joinder can only be applied
in ordinary civil actions.
Example:
D owes C P350,000 due on January 5, 2018.
D owes C P350,000 due on February 13, 2018.
Both debts are evidenced by a promissory note and incurred
for different. D has not paid the debts despite demand. Each
debt is a separate cause of action.
Under the rule on joinder, C may file a single suit against D
for the collection of both debts, despite the claims being
actually separate causes of action and having arisen out of
different transactions.
Is C obliged to join the causes of action against D?
[Bar 1999]
A: No. C is not obliged to do so. He may file a single suit for
each of the claims, if he desires, because each debt is a
separate cause of action. Joinder of action is not compulsory.
It is merely permissive. The Rule uses the word “may,” not
“shall.”
Joinder when there are multiple parties
(b) If there is only one plaintiff and one defendant, the rule
on joinder of parties does not apply. Simply because there
are no parties to be joined.
(c) It only applies when there are 2 or more plaintiffs and/or
2 or more defendants.
Rules before joining the parties
1) The party shall comply with the rules on joinder of parties
in Sec. 6, Rule 3 of the Rules of Court.
Requisites of joining the parties
Before causes of action and parties can be joined in a
complaint involving multiple parties, the following must
be complied with:
(1) The right to relief in favor of or against several
persons;
(2) The right to relief must arise out of the same
transaction or series of transactions and
(3) There must be a question of law or fact common to
all parties.
Spouses Perez v. Hermano
It is well to remember that the joinder cause of action may
involve the same parties or different parties. If the joinder involves
different parties, like herein case, there must be a question of fact
or law common to both parties joined, arising out of the same
transaction/s.
In the instant case, it can be deduced from the averments
made in the complaint that there are questions of fact and law
common to both Zecson Land, Inc. and Hermano arising from a
series of transaction over the same properties
2) The joinder shall include special civil actions governed by
special 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 1 of the causes of
action falls within the jurisdiction of the said court and
venue lies therein; and
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Spouses Decena v. Spouses Piquero
The venue was not properly laid down in the case at hand.
The resolution of this case is anchored on whether or no Section 5
Rules 2 of the Rules of Court is applicable. Under this rule a party
may assert as many cause of action as he may have against the
respondent subject to the conditions enumerated therein.
Section 5 does not apply since the petitioners’ in this case only
h ad one cause of action against the respondents, i.e. the breach
of the MOA. The action for attorney’s fees and damages are merely
incidental to the main cause.
A cause of action should not be confused with the remedies
or reliefs prayed for. A cause of action is to be found in the facts
alleged in the complaint and not in the prayer for relief. The mere
fact that the plaintiff prays for multiple reliefs does not indicate
that he has stated more than one cause of action. If the allegations
of the complaint show one primary right and one wrong, only one
cause of action is alleged. Where two or more primary rights and
wrongs appear, there is a joinder of causes of action.
4) Totality test – where claims in all causes of action are
principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction (Sec. 5, Rule 2)
Application of totality test
If C will join the causes of action, the suit shall be filed at the
RTC because the total amount of the debts is within that
court’s jurisdiction.
Example:
(a) No joinder:
a. C is creditor of D for P350,000
b. C is creditor of E for P375,000
c. Both debts are due and have been contracted
separately.
d. Cannot join because the debt of D is a transaction
different from the debt of E. Hence, they cannot be
sued under a single complaint. Each cause of action
should be subject of a separate complaint.
(b) Joinder.
a. P is a passenger in a bus owned by O and drive by
D.
b. Accident occurred where D was negligent and P
sustained injuries.
c. P can sue both O and D in the same complaint
because the liability arose out of the same accident
which gave rise to a common question of law or fact.
d. In the same accident, injured passengers in the same
mishap may join as plaintiffs against O and D.
(c) Joinder:
a. A and B signed a promissory note for P1M to be
jointly liable in favor of C, with 2 distinct obligations.
b. A owes C P500,000
c. B owes C P500,000
d. C may join A and B under 1 complaint because the
debt of A and B arose of the same transaction, i.e.,
the same promissory note and would necessarily give
rise to a common question of law or fact.
Misjoinder of causes of action, remedy
Sec. 6, Rule 2, Rules of Court
When there is a misjoinder of causes of action, the
erroneously joined cause of action can be severed and
proceeded with separately upon motion by a party or upon
the court’s own initiative. Misjoinder is not a ground for
dismissal of an action.
Misjoinder may cause dismissal of a complaint/action
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While a misjoinder is not a ground for dismissal, yet if the
plaintiff refuses to server the misjoined cause of action as
ordered by the court, the complaint may be dismissed
conformably with the mandate of Sec. 3 of Rule 17, which
authorizes the dismissal of a complaint for, among others,
failure to comply with the order of the court. ( Salvador v.
Patricia)

Can there be a valid judgment in case of misjoined causes of

action?
Ada v. Baylon, G.R. No. 182435
Misjoinder is a not a ground for dismissal. The courts have the
power, acting upon the motion of a party to the case, to order the
severance of the misjoined causes of action to be proceeded with
separately. However, if there is no objection to the improper
joinder or the court did no motu proprio direct a severance, then
there exists no bar in the simultaneous adjudication of all the
erroneously joined causes of action
However, this only applies if the court has jurisdiction of all
the causes of action notwithstanding the misjoinder of the same.
If the court has no jurisdiction over a misjoined cause of action,
then it has to be severed. Any adjudication would be nullified.

Splitting of a Cause of Joinder of a Cause of

Action Action

Multiplicity of suits. Minimizes the suits

Subject for dismissal No effect of non-doing.

Note:
Joinder of parties is compulsory if there are parties without
whom no final determination can be had of an action.

Bar: Give the effects of the following: Non-joinder of a

necessary party.
The court may order the inclusion of an omitted necessary
party if jurisdiction over his person may be obtained. The
failure to comply with the order for his inclusion without
justifiable cause is a waiver of the claim against such party.
The court may proceed with the action but the judgment
rendered shall be without prejudice to the rights of such
necessary party.

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6. A dissolved corporation may prosecute and defend suits
MODULE 2 by or against it provided that the suits (i) occur within 3
years after its dissolution, and (ii) the suits are in
connection with the settlement and closure of its affairs.
PARTIES TO CIVIL ACTIONS 7. A partnership for the practice of law, constituted in
accordance with the Civil Code of the Philippines acquires
juridical personality by operation of law.
PARTIES TO CIVIL ACTIONS
Parties to a civil action
Note:
1. Plaintiff
a. Juridical persons have personalities separate and distinct
2. Defendant
from those of the natural persons that compose them. A
judgment rendered against a corporation is not a
Plaintiff
judgment rendered against a corporate stockholder.
Sec. 1, Rule 3, Rules of Court
When the corporate officers have been illegally searched,
Plaintiff is the claiming party, the counter-claimant, the cross-
the right to contest the transgression does not belong to
claimant or the third (fourth, etc.)-party plaintiff.
any corporate officer, but it belongs to the corporation.
The objection to an unlawful search and seizure is purely
The plaintiff is the claiming party and is the one who files the
personal and cannot be availed of by third persons.
complaint. The term may not apply to the original plaintiff. It
b. The interest which entitles a person to intervene in a suit,
may also apply to a defendant who files a counterclaim, a
between other parties, must be in the matter in litigation
cross-claim or a third-party complaint.
and such direct and immediate character that the
intervenor will either gain or lose by direct legal operation
Defendant
and effect of the judgement. Shareholders are not the
Sec. 1, Rule 3, Rules of Court
owners of the corporate property but is owned by the
The defending party. The term “defendant” refers also to a
corporation as a distinct legal person.
defendant in a counterclaim, the cross-defendant, or the third
(fourth, etc.)-party defendant. c. But, even if the cause of action belongs to the
corporation, if the board refuses to sue despite demand
by the stockholders to sue and protect or vindicate
If a counterclaim is filed against the original plaintiff, he
corporate rights, a stockholder is allowed by law to file a
becomes the defendant and the original defendant, a plaintiff
derivative suit in the corporate name. In such suit, the
in the counterclaim.
real party in interest is actually the corporation and the
stockholders filing the action is a mere nominal party.
Who may be parties to a civil action?
1. Natural persons
Entity without a juridical personality as a defendant
2. Juridical persons
Sec. 15, Rule 3, Rules of Court
3. Entities authorized by law [Sec. 1, Rule 3, Rules of Court]
When 2 or more persons not organized as an entity with
juridical personality enter into a transaction, they may be sued
Where the complaint by a plaintiff not authorized to be a party
under the name by which they are generally or commonly
to a case, because it is not a natural person or a juridical
known. (Applies only as a defendant.)
person or entity authorized by law, it becomes dismissible on
the ground of lack of legal capacity to sue.
The responsible pleading of the entity sued must disclose the
names and addresses of its members since they are the
Juridical persons as a party to a civil action
persons ultimately liable to the plaintiff.
Those enumerated in Article 44 of the Civil Code:
1. The State and its political subdivisions
However, the authority to be a party under this section is
2. Other corporations, institutions and entities for public
confined only to being a defendant and not as a plaintiff.
interest or purpose, created by law
3. Corporations, partnerships and associations for private
Example:
interest or purpose to which the law grants a juridical
If A, B, C, D, and E entered into transactions using the
personality, separate and distinct from that of each
common name “Sea Quest Corp,” they may be sued as Sea
shareholder, partner or member.
Quest Corp.
Entities authorized by law to be parties
Note, the authority to be a party under this section is confined
1. Sec. 21 of the Corporation Code, a corporation by
only to being a defendant and not as a plaintiff.
estoppel is precluded in denying its existence and the
members thereof can be sued and be held liable as
Effect when a party impleaded is not authorized to be
general partners.
a party
2. A contract of partnership having a capital of P3,000 or
Sec. 1[d], Rule 3, Rules of Court
more but which fails to comply with the registration
Where the plaintiff is not a natural or a juridical person or an
requirements is liable as a partnership to third persons.
entity authorize by law, a motion to dismiss may be filed on
3. The estate of a deceased person is a juridical entity that
the ground that the “plaintiff has no legal capacity to sue.”
has a personality of its own. Since it has a personality of
its own, it may be a party to an action.
Where the plaintiff has the legal capacity to sue, but is not the
4. A legitimate labor organization may sue and be sued in
person who should sue because he is not the real party in
its registered name.
interest, the complaint is dismissible on the ground that the
5. The Roman Catholic Church may be a party and as its
properties, the archbishop or diocese, to which they complaint “states no cause of action.”
belong, may be a party.
Action if the party impleaded is not authorized to be a
party
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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
CIVPRO |
Sec. 12, Rule 8, Rules of Court Instance both are sued despite separation of property
No. 3. Plaintiff not authorized One spouse may end up being sued and held answerable for
The ground that “the plaintiff has no legal capacity to sue.” the liabilities incurred by the other spouse because “The
liability of the spouses to creditors for family expenses shall,
No. 4. Defendant not authorized however, be solidary. (Article 146 of the Family Code)
The ground that the “pleading asserting a claim states no
cause of action.” Because a complaint cannot possibly state a Foreign corporations
cause of action against one who cannot be a party to a civil Foreign corporation, right to sue:
action. Whether a foreign corporation is possessed of the right to sue
in the Philippines is determined as follows:
Sec. 1[h], Rule 3, Rules of Court 1. If the foreign corporation is transacting or doing business
Where it is the defendant who is not a natural or juridical in the Philippines with a license, it has the right to sue
person or an entity authorized by law, the complaint may be within the jurisdiction of the Philippines;
dismissed on the ground that the “pleading asserting the claim 2. If it is transacting or doing business without a license, it
states no cause of action” or “failure to state a cause of cannot sue;
action.” 3. If it is not transacting or doing business in the Philippines,
it can sue even if it is not possessed of any license.
Lack of legal capacity to Lack of legal personality to
sue sue Foreign corporation, right to be sued:
A foreign corporation may be sued in the Philippines:
It refers to plaintiff’s general 1. If it is transacting or doing business in the Philippines with
disability to sue such as on a license;
account of minority, insanity;
The plaintiff is not the real
2. If it is transacting or doing business in the Philippines
incompetence, lack of juridical without a license;
party in interest.
personality or any other
general disqualifications of a
However, if it is not transacting or doing business in the
party.
Philippines and does not have any license to so transact or do
Can be raised as an affirmative business in the Philippines, it cannot be sued in the Philippines
Can be an affirmative defense for lack of jurisdiction.
defense based on the ground
that the complaint states no
for lack of legal capacity to
cause of action.
sue. Summary
Right of foreign corporations to bring suit in Philippine Courts.
a. If it does business in the Philippines with the required
Averment of capacity to sue or be sued
license, it can sue before Philippine courts on any
Sec. 4, Rule 8, Rules of Court
transaction.
Facts showing the capacity of a party to sue or be sued, or
b. If it does business in the Philippine without a license, it
the authority of a party to sue or be sued in a representative
cannot sue before the Philippine courts.
capacity, or the legal existence of an organized association of
c. If it is not doing business, it needs no license to sue
person that is made a party, must be averred.
before Philippine courts on an isolated transaction or on
a cause of action entirely independent of any business
Minor or incompetent as a party
transaction.
Sec. 5, Rule 3, Rules of Court
d. If without license and not doing business in the
A minor or an incompetent party may sue or be sued. He can
Philippines, not disqualified from filing and prosecuting on
be a party, not through, but with the assistance of his father,
action for unfair competition.
mother, guardian, or if he has none, a guardian ad litem.
e. If doing business but without license, a Philippine citizen
or entity who entered into a contract with it is estopped
Suit by or against spouses
from challenging the foreign corporation’s personality in
Sec. 4, Rule 3, Rules of Court
a suit brought before the Philippine courts.
Husband and wife shall sue or be sued jointly, except as
provided by law.
Kinds of Parties in the Civil Action
1. Real Parties in interest;
They shall sue and be sued jointly inasmuch as both are co-
2. Indispensable parties;
administrators of the community property under the system
3. Representatives as parties;
of absolute community of property, as well as the conjugal
4. Necessary parties;
partnership property.
5. Indigent Parties;
6. Alternative Defendants
Exceptions:
1. Articles 101 & 108 of FC – a spouse abandons the other.
Real party in interest
2. Article 111 of FC – a spouse mortgages, alienates or
Sec. 2, Rule 3, Rules of Court
disposes exclusive properties.
He is the party who stands to be:
3. Article 145 FC – a property relations is separation of
1. Benefited;
property.
2. Injured by the judgment of the suit; or
4. Article 135 & 142 – grounds for judicial separation of
3. The party entitled to the avails of the suit.
property.
“Real” interest
Instance when a spouse need not be joined in a suit
The interest must be real, which is a present substantial
When the litigation pertains to an exclusive property of a
interest as distinguished from a mere expectancy or a future,
spouse.
contingent subordinate or consequential interest. It is an

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interest that is material and direct, as distinguished from a
mere incidental interest.
Sec. 2, Rule 3, Rules of Court
Unless otherwise authorized by law or by the Rules, “every
action must be prosecuted or defended in the name of the real
party in interest.” If a suit is not brought in the name of or
against the real party in interest, a motion to dismiss may be
filed on the ground that the complaint states no cause of
action.
Determining the real party in interest
The determination of who the real party in interest requires
the going back to the elements of a cause of action, where it
involves the existence of a right and a violation of such right.
Elements of a cause of action
(1) A legal right in favor of the plaintiff
(2) A correlative legal duty of the defendant to respect such
rights
(3) An act or omission by such defendant in violation of the
right of the plaintiff with a resulting injury or damage to
the plaintiff for which the latter may maintain an action
for the recovery of relief from the defendant. [Without
this element, a cause of action will not arise.]
The person who committed the valuation is the real party in
interest. Likewise, the person whose right was violated.
Purpose of the requirement
1. To prevent the prosecution of actions by persons without
any right, title or interest in the case;
2. To require that the actual party entitled to legal relief be
the one to prosecute the action; and
3. To avoid multiplicity of suits; and
4. To discourage litigation and keep it within certain bounds,
pursuant to sound public policy.
Relativity of contracts
Contracts can only bind the parties who entered into it, and
cannot fair or prejudice a third person. Hence, one who is not
a party to a contract, and for whose benefit t was not
expressly made, cannot maintain an action on it.
a. Heirs, other authorized parties.
A person, who has not taken part in the contract, cannot sue
or be sued for performance or cancellation thereof unless he
shows that his interest is affected thereby i.e. being an
assignee of a right or a right of action.
As a rule, under the doctrine of relativity of contracts
embodies in Article 1311 of the Civil Code, only the contracting
parties, their heirs and assigns are bound by the stipulation of
the contract.
Recognized exceptions of parties in a contract
1. Stipulation pour autrui. The party not privy to the
contract but whose benefit the stipulation was conferred
by the parties, may sue provided he accepted and
communicated his acceptance of the beneficial stipulation
prior to its revocation.
2. Article 1313. Creditors are protected in cases of
contracts intended to defraud them, i.e., filing a suit for
rescission of contract to redress the fraud.
Examples of real party in interest
1. Parties in a contract.
a. Exception: pour autrui. A stipulation expressly
conferring benefits to a third person.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
2. Sec. 3, Rule 3 of Rules of Court. Where an agent acts in
his own name and for the benefit of an undisclosed
principal, the gent may sue or be sued in his own name,
without joining the principal, except when the contract
involves things belonging to the principal.
3. Lawful possessor, not the owner of the land, may bring
an action to recover possession.
4. In an action of forcible entry, the possessor/lessee is the
real party in interest as plaintiff and not the owner/lessor.
a. But in an action to recover damages for injury caused
by the deforciant on the property, the owner/lessor
is the real party in interest.
5. Any of the co-owners may bring an action for ejectment
suit.
6. A contract of partnership, it is the partnership, not its
officers or agents, which should be impleaded in any
litigation involving property registered in its name.
7. Condominium unit owners and residents affected by an
oil leak, which made the place inhabitable, are real parties
in interest.
Stonehill v. Diokno
It is the corporation that is the real party in interest in
assailing the legality of the search made on the corporate offices
owned by the corporation. Thus, the corporate cannot sue.
However, if the board of the corporation refuses to sue
despite demands from the stockholders, the stockholder may file
a case through a derivative suit in the corporate name. in the suit,
it is the corporation that is the real party while the stockholder is
merely a nominal party.
Not real parties in interest
1. A mere agent, who is not an assignee of the principal,
cannot bring suit entered into in behalf of the principal.
Ground for dismissal when a party is not the real party
in interest
(a) Sec. 12, par. 4, Rule 8 of the New Rules
When a party is not a real party in interest, it can be
raised as an affirmative defense citing the ground “that
the pleading asserting the claim states no cause of action.
(b) “Any decision rendered against a person who is not a real
party in interest in the case cannot be executed. Hence,
a complaint filed against such person should be dismissed
for failure to state a cause of action.” (Aguila v. CA)
Real interest → Locus Standi
A real interest is a present, substantial interest, as
distinguished from a mere expectancy, or a future, contingent,
subordinate or consequential interest and a suit may be
dismissed if the plaintiff or the defendant is not a real party in
interest.
Domingo v. Carague
SC struck down the case on the basis because the petitioners
had no legal standing. They were not real party of the interest
because they did not stand to be aggrieved of the COA resolution.
Noteworthy: petitioners cited the 3 authorities laid down in
Chavez v. Pubic Estate Authorities, Agan, Jr. v. PIATCO, and
Information Technology Foundation v. COMELEC. In all 3 cases,
the SC sustained that the petitioners had legal standing to file the
petition on the issue of legality or constitutionality of a government
action/policy/execution of an executive prerogative. SC held that
it cannot be applied in the case at bar.
Even if 3 authorities cited, the petitioners herein, they did not
suffer immediate adverse effect, but somehow classified as non-
private suits.
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In a non-private suits, this doctrine (locus standi) requires that
the one who sues, must show, he has sustained injury as a
result of a government action, or has a material interest in the
issued affected by the challenged official act.
Locus standi
The doctrine of locus standi or legal standing refers to a
personal and substantial interest in a case such that the party
has sustained or will sustain direct injury because of the
challenged governmental act.
Elements of locus standi
(1) He has personally suffered some actual damage or
threatened injury because of the allegedly illegal conduct
of the government;
(2) The injury is fairly traceable to the challenged action; and
(3) The injury is likely to be redressed by the remedy being
sought.
Real part in interest v Locus standi
The difference between the rule on standing and real party in
interest has been noted by authorities thus: "It is important to
note . . . that standing because of its constitutional and public
policy underpinnings, is very different from questions relating
to whether a particular plaintiff is the real party in interest or
has capacity to sue. Although all three requirements are
directed towards ensuring that only certain parties can
maintain an action, standing restrictions require a partial
consideration of the merits, as well as broader policy concerns
relating to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in
some cases suits are brought not by parties who have been
personally injured by the operation of a law or by official action
taken, but by concerned citizens, taxpayers or voters who
actually sue in the public interest. Hence the question in
standing is whether such parties have "alleged such a personal
stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination
of difficult constitutional questions." (Kilosbayan v Morato)
In private suits, locus standi requires a litigant to be a "real
party in interest," which is defined as "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." (Planters Products Inc.
v Fertiphil Corporation)
Locus standi or the standing to sue cannot be easily brushed
aside for it is demanded by the Constitution. Lozano v.
Nograles2 reminds us:
The rule on locus standi is not a plain procedural rule but a
constitutional requirement derived from Section 1, Article VIII
of the Constitution, which mandates courts of justice to settle
only "actual controversies involving rights which are legally
demandable and enforceable."3 (Emphasis in the original)
Fundamentally, only parties who have sustained a direct injury
are allowed to bring the suit in court. Rule 3, Section 2 of the
Rules of Court provides that every action must be prosecuted
or defended in the name of the person who would benefit or
be injured by the court's judgment. This person is known as
the real party in interest. (Concurring opinion of J. Velasco in
Segovia v.Climate Change Commission)
Example:
(a) Quo warranto brought by private person to question the
constitutionality of the appointment made by the
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Philippine President and to oust the holder from its
enjoyment, the petitioner must show a clear right to the
contested office. The right to the office must be clear.
Hence, a mere nominee to a position does not lend a legal
ground to proceed with the action, being included in the
list of nominees submitted by the JBC, only gives the
petitioner a possibility, NOT certainty, of being appointed
to the position, considering the discretionary power of the
appointing power of the Ph. President. Hence, petitioner
had no legal standing.
(b) Quo warranto filed by the IBP to oust certain appointees
of the President to the Judiciary. The IBP does not qualify
under Rule 66 of the Rules of Court as an individual
claiming to be entitled to the positions in question.
Locus standi: non-traditional suitors (non-private
suits)
Rule on locus standi is mere procedural technicality, hence,
the rule is relaxed by the SC allowing persons who may not
have been personally injured by the operation of a law or any
governmental act. The minimum norms are as follows:
1. For taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure is
unconstitutional.
2. For voters, there must be a showing of obvious interest
in the validity of the law in question.
3. For concerned citizens, there must be a showing that the
issues raised are of transcendental importance which
must be settled early.
4. For legislators, there must be a claim that the official
action complained of infringes on their prerogatives as
legislators.
Additional right on locus standi, public right.
Every citizen has the right to interfere and see that a public
offense be properly pursued and punished, and that a public
grievance be remedies.
(5) When a citizen exercise his “public right” and challenges a
supposedly illegal or unconstitutional executive or
legislative action, he represents the public at large, thus,
clothing him with the requisite locus standi.
Question of Constitutionality
Application of the doctrine involving questions of
constitutionality since it is one of the requisites before such
questions may be judicially entertained.
The prevailing rule in constitutional litigation is that no
question involving the constitutionality or validity of a law or
governmental act may be heard or decided by the court,
unless there is compliance of the legal requisites for judicial
inquiry.
Legal requisites of judicial inquiry:
1. There must be an actual case or controversy calling for
the exercise of judicial power.
2. The person challenging the act must have the standing to
question the validity of the subject act or issuance. (locus
standi)
3. The question of constitutionality must be raised at the
earliest opportunity.
4. The issue of constitutionality must be lis mota of the case.
Oposa v. Factoran
It was a class suit as tax payers, by minors, represented by
their parents. SC held that they had legal standing.
Intergenerational responsibility and intergenerational justice. The
minors have the personality to sue in behalf of the succeeding
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generations insofar as the right to a balanced and healthful ecology
was concerned.
Plaintiff in environmental cases.
Sec. 4, Rule 2, Rules of Procedure for Envi Cases
Any real party in interest, including the government and
juridical entities authorized by law, may file a civil action
involving the enforcement or violation of any environmental
law.
Standing of marine mammals
The Court did not rule in favor of the legal standing of the
marine mammals, the petition was, nevertheless, not
dismissed on procedural grounds because the Stewards, in
their personal capacities, joined in the suit were declared to
have required standing.
Representatives as parties
Sec. 3, Rule 3, Rules of Court
Some actions may be allowed to be prosecuted or defended
by a representative or someone acting in a fiduciary capacity
like a trustee of an express trust, a guardian (a minor or
incapacitated person), and executor or administrator (of an
estate or deceased person), or a party authorized by law or
by the Rules.
Even where the action allowed to be prosecuted or defended
by a representative party or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest.
Impleading the beneficiary as a party is mandatory since the
said beneficiary is deemed to be the real party in interest.
Failure to state the name, not fatal
The mere failure to include the name of the party in the title
of the complaint is not fatal because the rules of court requires
the court to go into the substance of the form and not be
misled of a false or wrong name. This pertains to the rule on
interpretation, what governs is the body and not the head.
Even if the caption of the case does not include the name of
the real-party in interest, what will govern is the allegations
mentioned.
Citizen suit under the Rules of Procedure for Envi
Cases
Sec. 5, Rule 2, Part II of RoC for Envi Cases
A citizen suit may be filed by any Filipino citizen in
representation of others, including minors or generations yet
unborn, to enforce rights or obligations under environmental
laws.
This is the offshoot of the Oposa v. Factoran case, there is
now a rule for environmental cases. Where it has already been
institutionalized that minors can file a citizen suit.
When citizen suit is filed
When the suit is filed, the court shall issue which shall contain
the following:
(a) A brief description of the cause of action;
(b) A brief description of the reliefs prayed for, and
(c) An order requiring all interested parties to manifest their
interest to intervene in the case within 15 days from
notice thereof.
Sec. 1, Rule 19, Rules of Court
Unlike in the Rules of Court, in ordinary civil actions, the court
does not issue an order requiring interested parties to
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
manifest their intention to intervene. Instead, it is the
intervenor who asks for leave of court to intervene and his
intervention rests on judicial discretion.
Indispensable party
Sec. 7, Rule 3, Rules of Court
An indispensable party is a real party in interest without whom
no final determination can be had of an action.
An indispensable party is one whose interest in the subject
matter of the suit and the relief suit are so inextricably
intertwined with the other parties that his legal presence as a
party to the proceeding is an absolute necessity.
A person is not an indispensable party if his interest in the
controversy or subject matter is separable from the interest of
the other parties.
Note:
a) An indispensable party is one who must be included in an
action before it may properly go forward.
b) Strangers to a case are not bound by the judgment
rendered by the court.
c) Joinder of indispensable parties is mandatory and not
permissive.
d) The presence of indispensable parties is a condition for
the exercise of juridical power and when an indispensable
party is not before the court, the action should be
dismissed. The absence of an indispensable party renders
all subsequent actions of the court null and void for want
of authority to act, not only to the absent parties, but
even as to those present.
Test of indispensable party
Tests to determine whether a party is an indispensable party:;
1. Can relief by afforded to the plaintiff without the presence
of the other party?
a. IOW, did the court acquire jurisdiction of the
appropriate party against whom any judgment may
be executed? If NO-not an indispensable party.
2. Can the case be decided on its merits without prejudicing
the rights of the other party? (Rep. v. SB, GR No. 152154)
a. Without prejudice to the rights of the other party, it
has something to do with the right to due process.
Because a party has to be afforded with due process
to be able to refute the allegations against him.
Effect of failure to join an indispensable party
1. The action should be dismissed.
2. The absence of an indispensable party renders all
subsequent actions for the court null and void for want to
authority to act, not only as to the absent parties but even
as to those present.
The inclusion of indispensable parties is a jurisdictional
requirement. Any decision rendered by a court without first
obtaining the required jurisdiction over indispensable parties
is null and void for want of jurisdiction, not only as to the
absent parties but even as to those present.
This is because indispensable parties are those without whom
no final determination can be had of an action.
No outright dismissal
Pamplona v. Tinghil
There should not be outright dismissal if an indispensable
party is not impleaded. The Court is fully clothed with the authority
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to dismiss a complaint due to the fault of the plaintiff as when,
among others, he does not comply with any order of the court.
However, an outright dismissal is not the immediate remedy
under the Rules of Court. It is error for the court to order the
dismissal of the case.
Sec. 8, Rule 3, Rules of Court
A necessary party is one who is not indispensable but who
ought to be joined as a party to the case:
1. If complete relief is to be accorded as to those already
parties, or
2. For a complete determination or settlement of the claim
subject of the action.

Sec. 11, Rule 3, Rules of Court Sec. 9, Rule 3, Rules of Court

Instead, parties may be dropped or added by the court on Whenever in any pleading in which a claim is asserted a
motion of any party or on its own initiative at any stage of the necessary party is not joined, the pleader shall set forth his
action and on such terms as are just. name, if known, and shall state why he is omitted.

Sec. 11, Rule 3, Rules of Court The non-inclusion of a necessary party does not prevent the
Aside from dismissing the complaint or denying the motion, it court from proceeding in the action.
may order the amendment of the pleading.
A final determination of the case can be had but only among
It is only when the order of the court to implead an the parties already impleaded even if a necessary party, for
indispensable party goes unheeded may the case be some justifiable reason, is not joined.
dismissed. That is, the party refuses to implead an
indispensable party despite order of the court. Distinction between indispensable and necessary
party
Ordoña v The Local Civil Registrar of Pasig
There are instances where failure to implead and to notify the Indispensable party Necessary party
affected or interested parties are cured by the publication of
Party must be joined under Party should be joined
the notice of hearing. These special circumstances are "when and all conditions. whenever possible.
earnest efforts were made by petitioners in bringing to court
all possible interested parties; the interested parties Not mandatory. He has to be
themselves initiated the corrections proceedings; there was joined only whenever possible
no actual or presumptive awareness of the existence of the His presence is mandatory. to afford complete relief to the
interested parties; or when the party was inadvertently left parties and to avoid multiple
out." litigations.

Tan v Yabut Court cannot proceed without A final decree can be had even
him. without a necessary party.
An indispensable party is one whose interest will be affected
by the court’s action in the litigation and without whom no Additional distinction in Judge’s PPT
final determination of the case can be had. Such party is one
whose interest in the subject matter of the suit and the relief A necessary party is one who is
sought are so inextricably intertwined with the other parries' not indispensable but who out
in that his/her legal presence as a party to the proceeding is to be joined as a party if:
Parties in interest without
an absolute necessity. When an indispensable party is absent, whom no final determination 1. complete relief is to be
there cannot be a resolution of the dispute of the parties can be had of fan action shall accorded as to those already
before the court which is effective, complete, or equitable. be joined either as plaintiffs parties; or
Therefore, the absence of an indispensable party renders all or defendants.
2. for a complete determination
subsequent actions of the court null and void for want of or settlement of the claim or
authority to act, not only as to the absent parties but even as subject of the action.
to those present.
The case may be determined in
There are two consequences of a finding that indispensable No valid judgment if they are court but the judgment therein
parties have not been joined. First is the declaration that all not joined. will not afford a complete relief
subsequent actions of the lower court are null and void for in favor of the prevailing party.
lack of jurisdiction. Second is that the case should be
remanded to the trial court for the inclusion of indispensable Example: Collection of sum of money.
parties. It is only upon the plaintiff’s refusal to comply with an • The borrower and the lender are the indispensable
order to join indispensable parties that the case may be parties.
dismissed. • If the borrower is not able to pay the lender, he relies the
payment of another person, 3rd party, for the source of
It is basic that in non-joinder of indispensable parties, the case his funds, e.g. the employer; it is advisable for the plaintiff
should not be dismissed. Instead, the indispensable party to implead the employer or 3rd person to include in the
should be impleaded. Non-joinder of indispensable parties is suit for him to be able to have a complete relief, so that,
not a ground for the dismissal of an action. The remedy is to if he obtains a favorable judgment, he can execute it
implead the non-party claimed to be indispensable. Parties directly to the 3rd party.
may be added by order of the court or on motion of a party
or on its own initiative at any stage of the action or at such Another example: a joint obligation
times as are just. In instances of non-joinder of indispensable • A joint obligation where co-owners promised to deliver
parties, the proper remedy is to implead them and not dismiss their share.
the case. • Since, the obligation is joint, the plaintiff can go to the
person where the obligation is due and demandable.
Necessary parties
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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
CIVPRO |
• Since he cannot materially enjoy the use of the property
transferred in the name of the property, if judgment
favors him, for the entire property, he can sue the other
co-owner where his obligation is not yet due. That other
co-owner can be impleaded as a necessary party for the
plaintiff to have a complete relief.
Bar answers:
(a) Duty of pleader if a necessary party is not joinder; effect.
Whenever, in any pleading in which claim is asserted, a
necessary party is not joinder, the pleader shall set forth
the name of the necessary party, if his name is known,
and state why such party is omitted.
(b) When court may order joinder of a necessary party.
If the reason given for the non-joinder of the necessary
party is found by the court to be unmeritorious, it may
order the pleader to join the omitted party if jurisdiction
over his person may be obtained.
(c) Effect of failure to comply with the order of the court.
The failure to comply with the order of court to include a
necessary party, without justifiable cause, shall be
deemed a waiver of the claim against such party.
(d) Effect of a justified non-inclusion of a necessary party.
Effect of non-joinder of a necessary party
Sec. 9, Rule 3, Rules of Court
1. The court may order the inclusion of the omitted
necessary party if jurisdiction over his person may be
obtained;
2. The failure to comply with the order for his inclusion,
without justifiable cause, shall be deemed a waiver of the
claim against such party;
3. 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 the necessary party.
Alternative defendants
Suing a defendant in the alternative
Sec. 13, Rule 3, Rules of Court
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.
Simply, where the plaintiff cannot definitely identify who
among 2 or more persons should be impleaded as a
defendant, he may join all of them as defendants in the
alternative.
Example: car accidents where the injured party did not know
who was liable to the accident. The plaintiff can sue all the
drivers because he cannot expected to know right away to
whom his complaint is directed.
Rule when unknown identity or name of the defendant
Sec. 14, Rule 3, Rules of Court
Whenever the identity or name of the defendant is unknown,
he may sued as the unknown owner, heir, devisee, or by such
other designation as the case may require; when his identity
or true name is discovered, the pleading must be amended
accordingly.
Indigent parties
Sec. 21, Rule 3, Rules of Court
A party may be authorized to litigate as an indigent if the court
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.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
He is one:
1. Whose gross income and that of his immediate family do
not exceed on amount double the monthly minimum
wage of an employee;
2. Who does not own real property with a fair market value
as stated in the current tax declaration or more than
P300,000 (Sec. 19, Rule 141 as amended by AM No. 04-
02-04 SC)
The application and hearing to litigate as an indigent litigant
is made ex parte.
Relevance of a party being indigent
Exemption from payment if indigent litigant
1. Payment of docket fees
2. Other lawful fees
3. Transcripts of stenographic notes, which the court may
order to be furnished him.
However, the amount of the docket fee and other lawful fees,
which the indigent was exempted from paying, shall be lien
on the judgment rendered in the case favorable to the
indigent. A lien on the judgment shall not arise if the court
provides otherwise.
Challenged indigency
The status of being indigent may be challenged by the other
party.
If the court found the indigent party is in fact a person with
sufficient income and property, the proper docket and lawful
fees shall be assessed and collected by the clerk of court. The
grant of authority to contest the party as indigent is property
after hearing, not ex parte.
Pro forma party & Unwilling co-plaintiff
Pro forma party (Nominal party)
One who is joined as a plaintiff or defendant, not because
such party has any real interest in the subject matter or
because any relief is demanded, but merely because the
technical rules of pleadings require the presence of such party
on the record.
This happens in special proceeding cases: e.g. change of entry
in birth certificates, or issuances of TCT, you must implead the
Registry of Deeds where the property is located because it is
provided under PD 1529. These parties are not expected to
file any pleading, but it is only for the reason that any decision
will bind them.
Unwilling co-plaintiff
Sec. 10, Rule 3, Rules of Court
A party who is supposed to be a plaintiff but whose consent
to be joined cannot be obtained, as when he refused to be a
party to the action. He may be made a defendant, and the
reasons thereof shall be stated in the complaint.
Compulsory and permissive joinder of parties
Compulsory joinder of indispensable parties
The joinder of indispensable parties is mandatory and the
responsibility of impleading all the indispensable parties rests
on the plaintiff.
Without the presence of indispensable parties to the suit, the
judgment of the court cannot attain finality. Otherwise stated,
the absence of an indispensable party renders all subsequent
actions of the court null and void for want of authority to act
not only as to the absent party but even as to those present.
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Joinder of other parties, permissive
Sec. 6, Rule 3, Rules of Court
Only the joinder of indispensable parties are compulsory. The
joinder of other parties is merely permissive.
Requisites of permissive joinder of parties
1. Right to relief arises out of the same transaction or series
of transactions; and
2. There is a question of law or fact common to all the
plaintiffs or defendants.
Spouses Perez v. Hermano
It is well to remember that the joinder cause of action may
involve the same parties or different parties. If the joinder involves
different parties, like herein case, there must be a question of fact
or law common to both parties joined, arising out of the same
transaction/s.
In the instant case, it can be deduced from the averments
made in the complaint that there are questions of fact and law
common to both Zecson Land, Inc. and Hermano arising from a
series of transaction over the same properties
Rationale of permissive joinder of parties
To have controversies and matters related thereto settled
once and for all once they are brought to the courts for
determination.
When may the court order the joinder of a necessary
party?
If the reason given for non-joinder of the necessary party is
found to be unmeritous, the court may order the pleader to
join the omitted party if the jurisdiction over his person may
be obtained.
The failure to comply with the order, without justifiable cause,
shall be deemed a waiver of the claim against such party.
Misjoinder and non-joinder of parties
Misjoinder of party
A party is misjoined when he is made a party to the action
although he should not be impleaded.
Non-Joinder party
A party is not joined when he is supposed to be joined but is
not impleaded in the action.
Neither misjoinder nor non-joinder of parties is a ground for
dismissal of an action. The rules prohibit the dismissal on the
ground of misjoinder or non-joinder of parties but allows
amendment of the complaint at any stage of the proceedings,
through a motion or an order of the court on its initiative.
However, when the order of the court to impleaded an
indispensable party goes unheeded, the court may order the
dismissal of the case.
Class suits
A class suit is an action where 1 or more may sue for the
benefit of all if the requisites for said action are complied.
Determination of class suit
The determination of whether there is a class suit or not
depends upon the attendant facts, not merely because it is
designated as such in the pleadings.
Requisites for class suit
Sec. 12, Rule 3, Rules of Court
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
(1) The subject matter of the controversy must be of
common or general interest to many persons;
(2) The persons are so numerous that it is impracticable to
join all as parties;
(3) The parties before the court are sufficiently numerous
and representative as to fully protect the interest of all
concerned; and
(4) The representatives sue or defend for the benefit of all.
Not commonality of interest in the subject matter
A class suit does not require a commonality of interest in the
questions involved in the suit. What is required is the common
or general interest in the subject matter.
Note: An action does not become a class suit merely because
it is designated as such in the pleadings. Whether the suit is
or is not a class suit depends upon the attendant facts.
Subject matter of the action
It is meant the physical, the things real or personal, the
money, lands, chattels, and the like, in relation to the suit
which is prosecuted and not the delict or wrong committed by
the defendant.
No class suits
(a) There is no class suit in an action filed by 400 residents,
initiated through a former mayor, to recover damages
sustained due to exposure of toxic wastes. Each plaintiff
has a separate and distinct injury. Each supposed plaintiff
has to prove his own injury. There is not common or
general interest in the injuries allegedly suffer by the
members of the class. [Bar 1994]
(b) No class suit in an action for damages filed by the
relatives of the fatalities in a plane crash. There is no
common or general interest in the injuries or death of all
passengers in the plane. Each has a distinct and separate
interest which must be proven individually. [Bar 1991]
(c) No class suit when the interests are conflicting. An action
brought by 17 residents of a town with a population of
2,460 persons to recover possession of a holy image was
held not to qualify as a class suit because the plaintiffs
did not represent the membership of the churches they
purport to support and that the interests of the plaintiffs
conflict with those of the other inhabitants who were
opposed to the recovery.
(d) No class suit by a corporation to recover property of its
members.
(e) No class suit to recover real property individually held. A
class suit does not lie in an action for recovery of real
property where separate portions of the same parcel of
land were occupied and claimed individually by different
parties to the exclusion of each other.
(f) No class suit to recover damages for personal reputation.
No class suit was filed by associations of sugar planters
to recover damages in behalf of individual sugar planters.
Class suit in the environment and natural resources.
There is a class suit in an action filed by minors represented
by their parents, in behalf of themselves and others who are
equally concerned about the preservation of the country’s
resources, their generation, as well as generations yet unborn.
Dismissal or compromise of a class suit
Sec. 2, Rule 17, Rules of Court
A class suit shall not be dismissed or compromised without the
approval of the court. This is to protect the common interests
of all those who initiated the class suit.
Class suit distinguished from representative suit
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Representative
Class suit Claims that survive v. Claims that do not survive
suit
The question as to whether an action survives depends on the
It is a representative suit insofar as the nature of the action and the damage sued for.
persons who institute it represent the
entire class of persons who have the x.
Claims that survive Claims that do not survive
same interest or who suffered the same
injury.
Those that are not purely
Those that are purely personal.
personal.
The beneficiary is
Persons in class suit are not suing
deemed to be the
merely as representatives, but are real In cause of action that
real party in interest, In causes of action that do not
parties in interest directly injured by the survive, the wrong
not the survive, the injury complained
acts or omission complained of. complained of affects
representative. of is to the person, the property
primarily and principally
and rights of property affected
property or property rights,
being incidental. (Cruz v. Cruz,
Substitution of party upon death the injuries to the person
Gr. No. 173292)
The substitution of the deceased would not be ordered by the being merely incidental.
court in cases where the death of the party would extinguish
Recovery of real or personal
the action because substitution is proper only when the action
property interests;
survives. Enforcement of a lien;
recovery for damages of
Sec. 16, Rule 3, Rules of Court injury; they all survive the
The heirs of the deceased may be allowed to be substituted death of the defendant.
for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint a Actions and omissions arising
guardian ad litem for the minor heirs. from delicts.

Instances: court appoints an executor/administrator Ejectment cases.

When any of the following happens, the court may order the
opposing party to procure the appointment of an executor or
administrator for the estate of the deceased, within a specified
time.
(a) The counsel of the deceased does not name a legal
representative, or
(b) There is a representative named but he fails to appear
within the specified period.
Effect of death of party litigant
1. Purely personal action.
The death of either of the parties extinguishes the claim
and the action is dismissed. E.g. action for support,
specific performance, such as painting.
2. Action that is not purely personal.
The claim is not extinguished and the party should be
substituted by his heirs, executors or administrators. In
case of minor heirs, the court may appoint a guardian ad
litem for them. E.g. specific performance for the
execution of the deed of sale, not purely personal, may
be substituted.
3. Sec. 2, Rule 17, Rules of Court
Action for recovery of money arising from contract
and the defendant dies before entry of final
judgment.
It shall not be dismissed but shall instead be allowed to
continue until entry of judgment. A favorable judgment
obtained by the plaintiff shall be enforced in the manner
provided in the rules for prosecuting claims against the
estate of a deceased person.
Effect of death of a party, duty of the counsel
1. The death of the client extinguishes the attorney-client
relationship and divests the counsel of his authority to
represent the client. Neither does he become a counsel
of the heirs of the deceased unless his services are
engaged by said heirs.
2. It is the duty of the counsel of the deceased the party to
inform the court of such fact within 30 days after such
death. The counsel has the obligation to give the name
and address of the legal representative of the deceased.
Examples of actions which survive the death of a party
Sec. 1, Rule 87, Rules of Court
Actions that survive against a decedent’s executors or
administrators, and they are:
(a) Actions to recover real and personal property from the
estate;
(b) Actions to enforce a lien thereon; and
(c) Actions to recover damages for an injury to person or
property.
Additional jurisprudence
(d) Actions for damages survives upon death and should not
be dismissed.
(e) Actions to recover personal property like replevin
(f) Actions to recover real property like forcible entry,
unlawful detainer, accion publiciana, accion
reinvindicatoria.
(g) Actions to enforce a lien like foreclosure of mortgages.
(h) Action for quieting of title with damages.
(i) Ejectment case.
(j) Action to recover damages arising from delicts.
If the action does not survive like legal separation, the proper
action of the court is to simply dismiss the case.
Purpose of non-survival of claims
The reason for the dismissal of the case is that upon the death
of the defendant a testate or intestate proceeding shall be
instituted in the proper court wherein all his creditors must
appear and file their claims which shall be paid proportionately
out of the property left by the deceased.
Purpose and importance of substitution of the
deceased
It is for the protection of the right to due process. It is to
ensure that the deceased would continue to be properly
represented in the suit through the duly appointed legal
representative of the estate.

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The purpose of the rule of substitution, when proper, is to
apprise the heir or substitute that he is being brought to the
jurisdiction of the court in lieu of the deceased party by
operation of law.

Prior substitution is effect for the trial court to obtain

jurisdiction over the persons and to obviate any future claim
that he or she was apprised of the litigation.

Effect of non-compliance with the rules on

substitution
Non-compliance with the rules on substitution of a deceased
party renders the proceedings of the trial court infirm because
the court has no jurisdiction over the person of the legal
representative or heirs of the deceased.

Exceptions:
1. When the heirs themselves voluntarily appeared and
participated in the proceedings;
2. In ejectment cases, where the counsel fails to inform the
court of the death of his client and thereby results to the
non-substitution of the deceased by his legal
representatives.

Dela Cruz v. Joaquin

The Rule on substitution presents that when a party to a
pending action dies and the claim is not extinguished, the rules of
court require a substitution of the deceased. This rule was made
to protect every party’s right to due process. Thus, a legal
representative is required to substitute the case. And no
adjudication can be made against the successor of the deceased if
the fundamental right to a day in court is denied.
Further, a formal substitution is not necessary when the heirs
voluntarily appear in the case. But in a strict application, the rule
on substitution by heirs is not a matter of jurisdiction, but a
requirement of due process. Mere failure to substitution is not a
sufficient ground to nullify a trial court’s decision. The alleging
party must prove that there was an undeniable violation of due
process.
In the case at bar, there was a motion for substitution by the
heirs of Pedro in 2002 before the CA. The heirs voluntarily
participated in the case. Then, the motion for substitution was
granted. Even so, the issue of substitution cannot be held as a
ground to nullify a court’s decision.

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Reason of the rule fixing the venue
MODULE 2 Designed to ensure a just and orderly administration of
justice, or the impartial and evenhanded determination of
every action and proceeding.
VENUE
The other reason is to attain the greatest convenience
possible to the party litigants by taking into consideration the
VENUE
maximum accessibility to them of the courts of justice.
Venue is the place where a case is to be tried which an action
or proceeding should be brought. The specific RTC or MTC.
When can a stipulation on venue be valid?
This is because jurisdiction may refer to an RTC or MTC, but
An exclusive venue stipulation is valid and binding
there should be proper filing at the exact place, city or
provided:
municipality, where the case is to be tried.
1. The stipulation on the chosen venue is exclusive in nature
or inherent;
Venue versus Jurisdiction
2. It is expressed in writing by the parties thereto: and
Venue Jurisdiction 3. It is entered into before the filing of the suit.

The place, or geographical area Determining the venue

where an action is to be filed
and tried.
Can only be set up as an
affirmative defense in the
responsive pleading (Answer)
Sec. 12, Rule 8. Old rule allows
you to file a motion to dismiss,
not anymore in the new rules.
May be waived by failure to
object as an affirmative defense
or by stipulation of the parties.
Matter of procedural law. They
are provided in the rules.
May be subject of stipulation by
the parties.
Establishes a relation between
the plaintiff/petitioner &
defendant/respondent.
GR: Not a ground for a motu
proprio (meaning at the instance
of the court without any motion
filed by any party) dismissal.
Exception: in cases subject of
summary procedure.
Power of the court to hear
and decide a case.
Can be brought up at any
stage of the proceedings, but
may be barred by estoppel
Cannot be waived.
Matter of substantive law.
They are provided under the
law, BP 129.
Cannot be the subject of the
agreement of the parties.
Establishes a relation
between the court and the
subject matter.
It is a ground for a motu
proprio dismissal in case of
lack of jurisdiction over the
subject matter.
One must inquire into the primary purpose of the action, not
the title or heading given to such action.
Venue personal or real actions
The rules on venue do not give a plaintiff the freedom to bring
suits wherever he chooses. In order to know the venue of a
particular action, the basic step is to determine if the action is
personal or real. The determination is fixed by law under rules
of court.
Venue of real actions
Sec. 1, Rule 4, Rules of Court
Venue is local and, thus, generally, the venue is the place
where the property or any portion of the same is situated.
Note:
Annulment is a personal action, but if an action for annulment
of mortgage becomes a real action if there has already been
a foreclosure sale. Chua v. Total Office
Actions affecting title to, or possession of, real property, or
interest therein, shall be commenced and tried in the proper
court which has jurisdiction over the area wherein the real
property involved, or a portion thereof, is situated.
If the action is real, the venue is the place where the real
property is situated. The residences of the parties are
irrelevant to the choice of venue.

Venue in personal actions

Venue in civil cases
Venue is not a matter of jurisdiction. It does not equate to the
jurisdiction of the court. It is procedural and not substantive.
Venue is procedural and may be waived by the party if not
seasonably raised either in a motion to dismiss or in the
answer.
Venue in criminal cases
Venue is jurisdictional.
Sec. 3, Rule 117, Rules of Court
Venue is an essential element of jurisdiction, where the
information is filed in a place where the offense was
committed. If filed in a place where the offense was not
committed, there is lack of jurisdiction over the offense
charged. Because it is jurisdiction, it cannot be waived by the
parties.
Sec. 2, Rule 4, Rules of Court
The venue in personal actions is where the plaintiff or any of
the principal plaintiffs resides, or where the defendant or any
of the principal defendants resides, at the election of the
plaintiff.
They are referred as “transitory” because its venue ‘moves’
depending on the residences of the party. If there are more
than 1 parties, the principal parties should be the basis for
determining the proper venue.
Residence
In the rule on venue on personal actions, residence means his
personal, actual habitation or his actual place or abode,
whether permanent or temporary, as distinguished from
“domicile” which denotes a fixed permanent residence to
which, when absent, one has the intention of returning.

Territoriality principle – the place where the offense Actual residence may in some cases be the legal residence or
committed shall have jurisdiction over the case. domicile, but for purposes of venue, actual residence is the
place of abode and not necessarily legal residence or domicile
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Physical presence, nonetheless, must be more than temporary
and must be with continuity and consistency.
There can be no election as to the venue of the filing of a
complaint when the plaintiff has no residence. Your only
option, as plaintiff, is to file the case where the defendant is
residing. Since you have no residence, you have no basis for
filing a particular case in a given area.
Phil Banking Corp v. Tensuan
Venue is exclusive when the stipulation clearly indicates,
through qualifying and restrictive words that the parties
deliberately exclude causes of actions from the operation of the
ordinary permissive rules on venue and that they intended
contractually to designate a specific venue to the exclusion of any
other court also competent and accessible to the parties under the
ordinary rules on venue of actions.

Residence of a domestic corporation is the place, within the

Effects of Stipulations on Venue
Philippines, where its principal office is located. Though, a
Parties may agree on a specific venue which could be in a
corporation has no residence in the same sense that it is
place where neither of them resides, as long as the agreement
applied to a natural person. But for practical purposes, a
is:
corporation in a sense has a resident where its principal office
Sec. 4 [b], Rule 4, Rules of Court
is located as state in the articles of incorporation, as provided
1. In writing;
in the Corporation Code.
2. Made before the filing of the action; and
3. Exclusive as to the venue
Venue of actions against non-residents
Defendant does not reside but found in the
Written stipulations to venue, mandatory or
Philippines.
permissive
1. Personal actions.
Restrictive – suit may be filed only in the place agreed upon.
Sec. 2, Rule 4, Rules of Court
The venue is where the plaintiff or any of the principal
Permissive – parties may file their suits not only in the place
plaintiffs resides, or where the non-resident defendant
agreed upon but also in the places fixed by the rules.
may be found, at the election of the plaintiff.
2. Real Actions.
It must be emphasized that the mere stipulation on the venue
Sec. 1, Rule 4, Rules of Court
of an action, however, is not enough to preclude parties from
Shall be commenced and tried in the proper court which
bringing a case in other venues. The parties must be able to
has jurisdiction over the area wherein the real property
show that such stipulation is exclusive.
involved, or a portion thereof is situated.
a. Exclusive word – e.g. “filed only in…” “Solely, exclusively
in this court, in no other court, Particularly, Nowhere else
Defendant does not reside and is not found in the
but/except,” or words of equal import.
Philippines
b. Absence of such pertains to permissiveness. In the
Sec. 3, Rule 4, Rules of Court
absence of such restrictive words, the stipulation should
The action may be commenced and tried in the court of the
be deemed as merely an agreement on an additional
place where the plaintiff resides or where the property or any
forum, not as limiting venue.
portion thereof is situated or found.
Note:
The rule on venue shall apply:
Venue stipulations do not, as a rule, supersede the general
Sec. 3, Rule 4, Rules of Court
rule set forth in Rule 4 in the absence of qualifying or
a. Any of the defendants is a non-resident and, at the same
restrictive words. This means:
time, not found in the Philippines; and
b. The action affects the personal status of the plaintiff; or
General rule:
c. The action affects any property of the non-resident
The rules on venue is the default rule.
defendant located in the Philippines.
Exception:
When the Rules on venue do not apply
When there are restrictive words in written stipulations.
1. When a specific rule or law provides otherwise.
a. Quo warranto filed by OSG with the RTC.
b. Petition for a continuing writ of mandamus if filed Legaspi v. Republic
with the RTC, other than the SC or CA, shall be filed In this case the Construction Agreement included the
with the RTC exercising jurisdiction over the territory stipulation “the contractor hereby expressly waiving any other
where the actionable neglect or omission occurred. venue.” The venue is specific to Quezon City and accompanied by
c. The civil (as well as criminal) action for damages in the words highlighted. This connotes an exclusive stipulation of
written defamation shall be filed with the RTC of the venue.
province or city where the libelous article is printed
and first published… (Art. 360 of the RPC) Additional notes:
2. Where the parties have validly agreed in writing before 1. Restrictive stipulation on venue not binding when
the filing of the action on the exclusive venue thereof. the validity of the contract is assailed
A complaint directly assailing the validity of the written
When the rules on venue do not apply instrument itself should not be bound by the exclusive
When can you say that there is an exclusive venue? venue stipulation contained therein and should be filed in
In interpreting stipulations, an inquiry must be made as to accordance with the general rules on venue.
whether or not the agreement is restrictive in the sense that
the suit may be filed only in the place agreed upon, or 2. Erroneous dismissal based on improper venue
permissive in that the parties may file their suits not only in
the place agreed upon, but also in the places fixed by the
rules.
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Improper venue is not one of the grounds wherein the
court may dismiss an action motu proprio on the basis of
the pleadings.
3. No appeal, denied motion to dismiss on improper
venue
A defendant cannot appeal from the order of denial of his
motion to dismiss based on improper venue. An order
denying a motion to dismiss is merely interlocutory. It is
not final. And only final orders may be appealed. Normal
remedy is to file an answer and interpose the ground as
an affirmative defense, go to trial and appeal from the
adverse judgment.
4. SC change of venue
To avoid miscarriage of justice, the SC may order a
change of venue. This rule refers to both civil and criminal
cases since the constitutional provision does not
distinguish.
5. Instances when court may make motu proprio to
dismiss based on proper venue
A court may motu proprio dismiss a case from:
(a) An examination of the allegations in the complaint,
and
(b) Such evidence as may be attached thereto, on any
of the grounds apparent therefrom for the dismissal
of a civil action.
Agbayani v. Sayo, summary
(1) Whether offended party is public official or private
person, criminal action may be filed in the RTC of the
province or city where the libelous article is printed and
first published.
(2) If private individual – RTC of where he actually resided at
the time of the commission of the offense.
(3) If public officer whose office is in Manila at the time of
the commission of the offense – RTC of Manila
(4) If public officer outside of Manila – RTC of the province
or city where held office at the time of the commission of
the offense.
Doctrines in Module 2 cases:
Heirs of Hinog v. Melicor
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. 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.
Sun Insurance Office Ltd. V Asuncion
It is not simply the filing of the complaint or appropriate
initiatory pleading, but the payment of the prescribed docket
fee, that vests a trial court with jurisdiction over the subject
matter or nature of the action. Where the filing of the initiatory
pleading is not accompanied by payment of the docket fee,
the court may allow payment of the fee within a reasonable
time but in no case beyond the applicable prescriptive or
reglementary period.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
The same rule applies to permissive counterclaims, third-party
claims and similar pleadings, which shall not be considered
filed until and unless the filing fee prescribed therefor is paid.
The court may also allow payment of said fee within a
reasonable time but also in no case beyond its applicable
prescriptive or reglementary period.
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 judgment awards
a claim not specified in the pleading, or if specified the same
has been left for determination by the court, the additional
filing fee therefor shall constitute a lien on the judgment. It
shall be the responsibility of the Clerk of Court or his duly
authorized deputy to enforce said lien and assess and collect
the additional fee.
DO-ALL Metals Industries v. Security Bank Corp
The plaintiffs' non-payment of the additional filing fees due on
their additional claims did not divest the RTC of the jurisdiction
it already had over the case.
Lu v Lu Ym
The Court had laid down the test in determining whether the
subject matter of an action is incapable of pecuniary
estimation by ascertaining the nature of the principal action or
remedy sought.
If the action is primarily for the recovery of sum of money, the
claim is considered capable of pecuniary estimation. However,
where the basic issue is something other than the right to
recover a sum of money, the money claim being only
incidental to or merely a consequence of, the principal relief
sought, the action is incapable of pecuniary estimation.
The erroneous annotation of a notice of lis pendens does not
negate good faith. The overzealousness of a party in
protecting pendente lite his perceived interest, inchoate or
otherwise, in the corporation’s properties from depletion or
dissipation, should not be lightly equated to bad faith.
That notices of lis pendens were erroneously annotated on the
titles does not have the effect of changing the nature of the
action. The aggrieved party is not left without a remedy, for
they can move to cancel the annotations.
Diaz v Adiong
It is clear that an offended party who is at the same time a
public official can only institute an action arising from libel in
two (2) venues: the place where he holds office, and the place
where the alleged libelous articles were printed and first
published.
However, unless and until the defendant objects to the venue
in a motion to dismiss prior to a responsive pleading, the
venue cannot truly be said to have been improperly laid since,
for all practical intents and purposes, the venue though
technically wrong may yet be considered acceptable to the
parties for whose convenience the rules on venue had been
devised. Well-settled is the rule that improper venue may be
waived and such waiver may occur by laches.
Note: Venue in an action arising from libel is only mandatory
if it is not waived by defendant.
Legaspi v Republic
A provision regarding venue can either be restrictive, i.e. the
case MUST be submitted to that venue, or permissive, i.e. the
venue is merely an option, meaning it can be filed in the place
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of residence or at the place where the property is located or
at the place stipulated. Restrictive stipulations regarding
venues are usually accompanied with words like “exclusively”
“shall only” or “to the exclusion of other courts”.
Dacoycoy v IAC
The motu proprio dismissal of petitioner's complaint by
respondent trial court on the ground of improper venue is
plain error, obviously attributable to its inability to distinguish
between jurisdiction and venue.
Questions or issues relating to venue of actions are basically
governed by Rule 4 of the Revised Rules of Court. It is said
that the laying of venue is procedural rather than substantive.
It relates to the jurisdiction of the court over the person rather
than the subject matter. Provisions relating to venue establish
a relation between the plaintiff and the defendant and not
between the court and the subject matter. Venue relates to
trial not to jurisdiction, touches more of the convenience of
the parties rather than the substance of the case.
Jurisdiction treats of the power of the court to decide a case
on the merits; while venue deals on the locality, the place
where the suit may be had. In the instant case, even granting
for a moment that the action of petitioner is a real action,
respondent trial court would still have jurisdiction over the
case, it being a regional trial court vested with the exclusive
original jurisdiction over "all civil actions which involve the title
to, or possession of, real property, or any interest therein . .
." in accordance with Section 19 (2) of Batas Pambansa Blg.
129.
Dismissing the complaint on the ground of improper venue is
certainly not the appropriate course of action at this stage of
the proceeding, particularly as venue, in inferior courts as well
as in the courts of first instance (now RTC), may be waived
expressly or impliedly. Where defendant fails to challenge
timely the venue in a motion to dismiss as provided by Section
4 of Rule 4 of the Rules of Court, and allows the trial to be
held and a decision to be rendered, he cannot on appeal or in
a special action be permitted to challenge belatedly the wrong
venue, which is deemed waived.
Thus, unless and until the defendant objects to the venue in
a motion to dismiss, the venue cannot be truly said to have
been improperly laid, as for all practical intents and purposes,
the venue, though technically wrong, may be acceptable to
the parties for whose convenience the rules on venue had
been devised. The trial court cannot pre-empt the defendant's
prerogative to object to the improper laying of the venue by
motu proprio dismissing the case.
Heirs of Dolleton v Fil-Estate Management Inc.
The elementary test for failure to state a cause of action is
whether the complaint alleges facts which if true would justify
the relief demanded. 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
defense that may be presented by the defendant.
To sustain a motion to dismiss for lack of cause of action, the
complaint must show that the claim for relief does not exist,
rather than that a claim has been defectively stated, or is
ambiguous, indefinite or uncertain.
Del Rosario v Far East Bank
In determining whether causes of action are identical to
warrant the application of the rule of res judicata, the test is
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
to ascertain whether the same evidence which is necessary to
sustain the second action would suffice to authorize a recovery
in the first even in cases in which the forms or nature of the
two actions are different. Simply stated, if the same facts or
evidence would sustain both, the two actions are considered
the same within the rule that the judgment in the former is a
bar to the subsequent action.
CGR Corporation v. Treyes
The Court ruled that no claim for damages arising out of
forcible entry or unlawful detainer may be filed separately and
independently of the claim for restoration of possession.
Res judicata may not apply because the court in a forcible
entry case has no jurisdiction over claims for damages other
than the use and occupation of the premises and attorney’s
fees.
Joseph v. Bautista
A cause of action is understood to be the delict or wrongful
act or omission committed by the defendant in violation of the
primary rights of the plaintiff. It is true that a single act or
omission can be violative of various rights at the same time,
as when the act constitutes juridically a violation of several
separate and distinct legal obligations. However, where there
is only one delict or wrong, there is but a single cause of action
regardless of the number of rights that may have been
violated belonging to one person.
The singleness of a cause of action lies in the singleness of
the delict or wrong violating the rights of one person.
Nevertheless, if only one injury resulted from several wrongful
acts only one cause of action arises.
Progressive Development Corp v CA
A claim cannot be divided in such a way that a part of the
amount of damages may be recovered in one case and the
rest, in another. The rule was aimed at preventing repeated
litigations between the same parties in regard to the same
subject of the controversy and to protect the defendant from
unnecessary vexation. Nemo debet bis vexari pro una et
eadem cause.
Sps Perez v Hermano
Refer to discussion on joinder of parties and rules on
misjoinder
Spouses Decena v. Spouses Piquero
The essential elements of a cause of action are the following:
1. The existence of a legal right on the plaintiff
2. Duty of the defendant to respect this right
3. An act or omission in violation of this right
A cause of action should not be confused with the remedies
or reliefs prayed for. A cause of action is to be found in the
facts alleged in the complaint and not in the prayer for relief.
It is the substance and not the form that is controlling. A party
may have two or more causes of action against another party.
A joinder of causes of action is the uniting of two or more
demands or right of action in a complaint. The question of the
joinder of causes of action involves in particular cases a
preliminary inquiry as to whether two or more causes of action
are alleged.
Evangelista v. Santiago
It should be clarified that the “plaintiff has no legal capacity
to sue” and “the pleading asserting the claim states no cause
of action” are two different grounds for a motion to dismiss or
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are two different affirmative defenses. Lack of legal capacity
to sue means that the plaintiff is not in the exercise of his civil
rights, or does not have the necessary qualification to appear
in the case, or does not have the character or representation
he claims. On the other hand, a case is dismissible for lack of
personality to sue upon proof that the plaintiff is not the real-
party-in-interest, hence grounded on failure to state cause of
action. The term “lack of capacity to sue” should not be
confused with the term “lack of personality to sue.” While the
former refers to a plaintiff’s general disability to sue, such as
on account of minority, insanity, incompetence, lack of
juridical personality or any other general disqualifications of a
party, the latter refers to the fact that the plaintiff is not the
real-party-in interest. Correspondingly, the first can be a
ground for a motion to dismiss based on the ground of lack of
legal capacity to sue; whereas the second can be used as a
ground for a motion to dismiss based on the fact that the
complaint, on the face thereof, evidently states no cause of
action.
Excellent Quality Apparel Inc. v Win Multi Rich
Builders Inc.
A suit may only be instituted by the real party in interest. A
sole proprietorship does not have an authority to file a case.
A sole proprietorship is a business enterprise, unorganized
business owned by one person where he/she is liable for all
the debts and obligations of the business. In the case of
Mangila v. CA, a sole proprietorship does not have an authority
to file a suit in court.
There is no law authorizing sole proprietorships to file a suit
in court. A sole proprietorship does not possess a juridical
personality separate and distinct from the personality of the
owner of the enterprise. The law merely recognizes the
existence of a sole proprietorship as a form of business
organization conducted for profit by a single individual and
requires its proprietor or owner to secure licenses and permits,
register its business name, and pay taxes to the national
government. The law does not vest a separate legal
personality on the sole proprietorship or empower it to file or
defend an action in court.
Domingo v Carague
Petitioners failed to show any present substantial interest in
the outcome of the case. Nor may petitioners claim that as
taxpayers, they have legal standing since nowhere in their
petition do they claim that public funds are being spent in
violation of law or that there is a misapplication of the
tax­payers’ money.
Oposa v Factoran
Inter-generational responsibility and inter-generational
justice. Minors have legal standing, including those
generations not yet born.
Pascual v Robles
In the case at bar, Robles is an indispensable party. He stands
to be injured or benefited by the outcome of the petition. He
has an interest in the controversy that a final decree would
necessarily affect his rights, such that the courts cannot
proceed without his presence. Moreover, as provided for
under the Section 5, Rule 65 of the Rules of Court, Robles is
interested in sustaining the assailed CA decision considering
that he would benefit from such judgment. As such, his non-
inclusion would render the petition for certiorari defective.
Petitioner, thus, committed a mistake in failing to
implead Robles as respondent. The rule is settled that the non-
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
joinder of indispensable parties is not a ground for the
dismissal of an action. The remedy is to implead the non-party
claimed to be indispensable. Parties may be added by order
of the court on motion of the party or on its own initiative at
any stage of the action and/or at such times as are just. If
petitioner refuses to implead an indispensable party despite
the order of the court, the latter may dismiss the
complaint/petition for the plaintiff’s/petitioner’s failure to
comply therewith.
Limos v Odones
The non-joinder of indispensable parties is not a ground for
the dismissal of an action. The remedy is to implead the non-
party claimed to be indispensable. Parties may be added by
order of the court on motion of the party or on its own
initiative at any stage of the action and/or such times as are
just. It is only when the plaintiff refuses to implead an
indispensable party despite the order of the court, that the
latter may dismiss the complaint.
Cerezo v Tuazon
An indispensable party is one whose interest is affected by the
court’s action in the litigation, and without whom no final
resolution of the case is possible. However, Mrs. Cerezo's
liability as an employer in an action for a quasi-delict is not
only solidary, it is also primary and direct.
The responsibility of two or more persons who are liable for a
quasi-delict is solidary. Where there is a solidary obligation on
the part of debtors, as in this case, each debtor is liable for
the entire obligation. Hence, each debtor is liable to pay for
the entire obligation in full. There is no merger or renunciation
of rights, but only mutual representation. 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. Therefore, jurisdiction over
Foronda is not even necessary as Tuazon may collect damages
from Mrs. Cerezo alone.
Moreover, an employer's liability based on a quasi-delict is
primary and direct, while the employer's liability based on a
delict is merely subsidiary. The words "primary and direct," as
contrasted with "subsidiary," refer to the remedy provided by
law for enforcing the obligation rather than to the character
and limits of the obligation.
Laperal Development Corp v CA
A proper party is one which ought to be a party if complete
relief is to be accorded as between those already parties. A
party is indispensable if no final determination can be had of
an action unless it is joined either as plaintiff or defendant.
Mathay v Consolidated Bank and Trust Company
The necessary elements for the maintenance of a class suit
are accordingly: (1) that the subject matter of the controversy
be one of common or general interest to persons, and (2) that
such persons be so numerous as to make it impracticable to
bring them all to the court. An action does not become a class
suit merely because it is designated as such in the pleadings.
Whether the suit is or is not a class suit depends upon the
attending facts, and the complaint, or other pleading initiating
the class action should allege the existence of the necessary
facts, to wit, the existence of a subject matter of common
interest, and the existence of a class and the number of
persons in the alleged class, in order that the court might be
enabled to determine whether the members of the class are
so numerous as to make it impracticable to bring them all
before the court, to contrast the number appearing on the
record with the number in the class and to determine whether
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claimants on record adequately represent the class and the
subject matter of general or common interest.

The statute also requires, as a prerequisite to a class suit, that

the subject-matter of the controversy be of common or
general interest to numerous persons. Although it has been
remarked that the "innocent 'common or general interest'
requirement is not very helpful in determining whether or not
the suit is proper", the decided cases in our jurisdiction have
more incisively certified the matter when there is such
common or general interest in the subject matter of the
controversy. By the phrase "subject matter of the action" is
meant "the physical facts, the things real or personal, the
money, lands, chattels, and the like, in relation to which the
suit is prosecuted, and not the delict or wrong committed by
the defendant."

Spouses de la Cruz v Joaquin

The legal representatives of a dead litigant must substitute as
parties to a litigation. The issue of substitution cannot be held
as a ground to nullify a trial court’s decision.

The Rule on substitution presents that when a party to a

pending action dies and the claim is not extinguished, the
rules of court require a substitution of the deceased. This is
under Section 16, Rule 3 of the ROC. This rule was made to
protect every party’s right to due process. Thus, a legal
representative is required to substitute the case. And no
adjudication can be made against the successor of the
deceased if the fundamental right to a day in court is denied.

Further, a formal substitution is not necessary when the heirs

voluntarily appear in the case. But in a strict application, the
rule on substitution by heirs is not a matter of jurisdiction, but
a requirement of due process. Mere failure to substitution is
not a sufficient ground to nullify a trial court’s decision. The
alleging party must prove that there was an undeniable
violation of due process.

Limbauan v Acosta
It is well-settled that the 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.

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Pleadings
Pleadings are written statements of the respective claims and
defenses of the parties submitted to the court for appropriate
judgment. Pleadings aim to define the issues and foundation
of proof to be submitted during the trial, and to apprise the
court of the rival claims of the parties.
Pleadings are either initiatory or responsive.
Note: If you have a complaint, you cannot just go to court and
verbally narrate to the judge your cause/s of action. If you are
the defendant, you cannot also verbally appeal and raise your
defenses to the judge as if you are making a confession. Your
complaint or defenses have to be in writing.
“In writing” means that your written statements must also
follow the prescribed /standard form (e.g. efficient paper
rule). It must not be through a letter or text message.
Judge Q: Pleadings are formal statements by the parties of
the operative facts of their respective claims. Complainant
must include in his pleading, the claims if it is an initiatory
pleading and the relief he is asking so a mere letter will not
suffice because you must set forth the claims set forth, the
basis under the law and specific acts in order to assert or seek
relief in applying a specific provision of law in a given set of
facts and it must be done properly.
What is the effect if a document is submitted and will
not qualify as a pleading?
It will not be treated by the court. The allegations must be
clearly set forth to confer jurisdiction. Otherwise, the court will
not take cognizance of the action in submitting said document.
Necessity and purpose of pleadings
Pleadings are designed to develop and present the precise
points in dispute between the parties. Their office is to inform
the court and the parties of the facts in issue.
Pleadings are intended to secure a method by which the issues
may be properly laid before the court. Pleadings also supply
the framework that guides the court in conducting the
proceedings. The actions of the court primarily depend upon
the parties’ allegations in their pleadings.
Judge Q ppt:
1. In order to confer jurisdiction of a court, that the subject
matter be presented for its consideration in a mode
sanctioned by law and this is done by the filing of a
complaint or other pleading
2. They are intended to secure a method by which the
issues may be properly laid before the court
3. They are designed to develop and present the precise
points in dispute between the parties
Functions of the Defendant
1. To inform the defendant clearly and definitely of the
claims against him so that he may be prepared to meet
the issues at trial
2. To inform the defendant of all material facts on which
the plaintiff relies to support his demand
3. To state the theory of a cause of action which forms the
bases of plaintiff's claim of liability. This is in line with
due process.
Construction of pleadings
All pleadings shall be liberally construed so as to do substantial
justice. They should receive a fair and reasonable construction
in accordance with the natural intendment of the words and
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
language used and the subject matter involved. The intention
of the pleader is the controlling factor in construing a pleading
and should be read in accordance with its substance, not its
form.
However, while it is the rule that pleadings should be liberally
construed, it is also a rule that a party is strictly bound by the
allegations, statements or admissions made in his pleadings
and cannot be permitted to take a contradictory position.
Thus, it has been held that an admission in the pleadings
cannot be controverted by the party making such admission
and are conclusive as to him, and that all proofs submitted by
him contrary thereto or inconsistent therewith should be
ignored, whether objection is interposed or not.
Judge Q: Pleadings should be liberally construed so as to do
substantial justice. The intention of the pleader is the
controlling factor in construing a pleading and should be read
in accordance with its substance and not its form. It is also a
rule that the party is strictly bound by the allegations,
statements or admissions made in his pleadings and cannot
be permitted to take a contradictory position. A party is not
allowed to take inconsistent theories with respect to his
pleadings.
Construction of ambiguous allegations in pleadings
In case there are ambiguities in the pleadings, the same must
be construed most strongly against the pleader and that no
presumptions in his favor are to be indulged in. This rule
proceeds from the theory that it is the pleader who selects the
language used and if his pleading is open to different
constructions, such ambiguities must be at the pleader’s peril.
Nature of a pleading; how determined
It is axiomatic that the nature of an action is determined by
the allegations of the complaint or petition and the character
of the relief sought.
Judge Q: Not by its title but the averments found in the body.
So even if caption is forcible entry but the body states plenary
action, then the body must prevail. What determines the
pleading is the allegations, not the title. The court shall grant
relief warranted by the allegations and proof even if no such
relief is prayed for.
Pleadings allowed
Sec. 2, Rule 6. The claims of a party are asserted in a
complaint, counterclaim, cross-claim, third (fourth,etc-) party
complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the
pleading asserting a claim against him or her. An answer may
be responded to by a reply only if the defending party attaches
an actionable document to the answer.
What are the major pleadings identified by the rules?
1. Complaint
2. Answer
3. Counterclaim
4. Cross-claim
5. Reply
6. Third-party complaint
7. Counter cross claim
8. Complaint in intervention
Pleadings allowed in cases covered by the Rules on
Summary Procedure
When a case falls under the Rules on Summary Procedure, the
only pleadings allowed to be filed are:
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➢ Complaint
➢ Compulsory counter-claim, pleaded in the answer
➢ Cross-claim, pleaded in the answer
➢ Answers thereto
Prohibited Pleadings:
➢ Permissive counterclaim
➢ Third-party complaint
➢ Reply
➢ Pleading in intervention
Pleadings allowed in cases covered by Small Claim
cases
The only pleadings allowed under small claim cases are:
➢ Statement of Claim
➢ Reply
➢ Counterclaim in the Response
Kinds of Pleadings
Complaint
Complaint is the pleading alleging the plaintiff’s cause or
causes of action, stating therein the names and residences of
the plaintiff and defendant.
It is a concise statement of the ultimate facts constituting the
plaintiff’s cause or causes of action, with the specification of
the relief sought, but it may add a general prayer for such
further relief as may be deemed just and equitable. A
complaint is also known as the “Initiatory Pleading.” The
allegations in the complaint must contain the elements of a
cause of action.
Significance of filing the complaint
The filing of the complaint is the act of presenting the said
complaint to the clerk of court. For the purpose of filing, the
original must be presented personally to the clerk of court or
sent by registered mail.
The filing of the original complaint in court signifies the
commencement of the civil action. By the filing of the
complaint, the court also acquires jurisdiction over the person
of the plaintiff. Submission to the jurisdiction of the court is
implied from the very filing of the complaint where affirmative
reliefs is prayed for by the plaintiff. It also has the effect of
interrupting the prescription of actions pursuant to Art. 1155
of the Civil Code of the Philippines.
Judqe Q: This is logical for the guidance of the court in
acquiring jurisdiction. A complaint is a concise statement of
the ultimate facts constituting the plaintiff's cause or causes
of action, with the specification of the relief sought, but it may
add a general prayer for such further relief as may be deemed
just and equitable.
Evidentiary facts are those facts which are necessary for
determination of the ultimate facts. They are the premises
upon which conclusions of ultimate facts are based. On the
other hand, ultimate facts are the essential facts constituting
the plaintiff's cause of action. A fact is essential if it cannot be
stricken out without leaving the statement of the cause of
action insufficient. A pleading should state the ultimate facts
essential to the rights of an action or defense asserted, as
distinguished from mere conclusion of act, or conclusion of
law. An allegation that a contract is valid, or void, as in the
instant case, is a mere conclusion of law.
However, in the new rules, this has been dramatically changed
since you now need to include the evidentiary facts. If you fail
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
to include the JA of your witnesses, no other witnesses may
be introduced during the trial. The particular rule I am talking
about is sec 6 rule 7. It is an innovation under the new rules
requiring parties to include in the pleading names of witnesses
and their testimonies already. Moreover, it also requires
attachment in the pleading, documentary and object evidence
in support of the allegations contained in the pleading and we
all know that all of the attachments are considered an integral
part of the pleading. So in a new way, the new rules not only
require statement of ultimate facts but also evidentiary facts-
Now this has been given the phrase na lay all your cards on
the table. In fact, you are laying everything--no more
surprises because the rule is quite clear--that you must include
all your evidence. So it is now being exposed to the opposing
party as what the rule requires, so somehow this innovation
is considered as a shift from the former rule which only
requires narration of ultimate facts.
Answer
An answer is a pleading in which a defending party sets forth
his defenses. It may allege legal provisions relied upon for
defense.
It may likewise be the response to a counterclaim or cross-
claim. It may be an answer to the complaint, an answer to a
counter-claim, or an answer to a cross-claim.
Defenses
Defenses may either be affirmative or negative.
Negative Defenses
Negative defenses are the specific denials of the material fact
or facts alleged in the pleading of the claimant essential to his
cause or causes of action.
When the answer sets forth negative defenses, the burden of
proof rests upon the plaintiff, and when the answer alleges
affirmative defenses, the burden of proof devolves upon the
defendant.
The three modes of specific denials are:
a. Absolute Denial- where the defendant specifies each
material allegations of fact, the truth of which he does
not admit and whenever practicable sets forth the
substance of the matters upon which he relies to support
such denial
b. Partial Denial- where the defendant does not make a total
denial of the material allegations in a specific paragraph,
denying only a part of the averment. In doing so, he
specifies that part the truth of which he admits and denies
only the remainder.
c. Denial by Disavowal of Knowledge- where the defendant
alleges having no knowledge or information sufficient to
form a belief as to the truth of a material averment made
in the complaint. Such denial must be made in good faith.
Judge Q: So a negative defense consists of a specific denial.
Specific denials must be made under oath, so it goes without
saying that an answer must be under oath because that is
where you assert the defenses, in the answer, particularly
when it is under an actionable document.
Denial-what is an effect if there is admission? You are not
raising it as an issue anymore. Usually, factual issues are
involved in admission so if a party has admitted(?) , then the
opposing party need not adduce evidence. Now, if the
answering party makes a general denial meaning it does not
indicate with specific controverting admissions, an admission
of the material averments in a pleading asserting a claim or
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claims (considered insufficient denials). So if you want to
deny, you must state the reasons why you are denying. So for
instance if the allegation is you incurred default in the
payment of your loan obligation, your denial should be stated
in such a way that you will controvert the statement. If mo
ingon lang ka na the allegation is untrue and baseless, it is a
general denial which is considered an insufficient denial so one
must be very careful in raising the factual issues involved by
properly making a specific denial because a denial classified
as a general denial is tantamount to an admission.
Negative Pregnant
Negative pregnant is an admission in avoidance which does
not qualify as a specific denial.
It is a form of some negative expression carries with it an
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 words
of the allegation as so qualified or modified are literally denied,
the qualifying circumstances alone are denied while the fact
itself is admitted.
Judge Q: It does not qualify as a specific denial. It is conceded
to be actually an admission. otherwise stated, it refers to a
denial which implies its affirmative opposite by seeming to
deny only a qualification or an incidental aspect of the
allegation but not the main allegation itself.
A denial in the form of a negative pregnant is an ambiguous
pleading since it cannot be ascertained whether it is a fact, or
only the qualification that is intended to be denied. You must
deny the main point of the claim and not the qualification.
Affirmative Defenses
Affirmative defenses are allegations of new matters which,
while hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or bar
recovery by him. Affirmative defenses include:
a. Fraud
b. Statute of limitations
c. Release
d. Payment
e. Illegality
f. Statute of frauds
g. Estoppel
h. Former recovery
i. Discharge in bankruptcy
j. Any other matter by way of confession and avoidance
Affirmative defenses may also include grounds for the
dismissal of a complaint, specifically, that the court has no
jurisdiction over the subject matter, that there is another
action pending between parties for the same cause, or that
the action is barred by a prior judgment.
Note: Additional Special Affirmative Defenses (Rule 8, Section
12, New Rules)
1. Lack of jurisdiction over the person
2. Venue is improperly laid
3. Plaintiff has no legal capacity to sue
4. Pleading states no cause of action
5. Failure to comply with condition precedent to the
filing of the case
Judge Q: Affirmative defenses are allegations of new matters
which, while hypothetically admitting the material allegations
in the pleading of the claimant, would nevertheless prevent or
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
bar recovery by him. So what are the diff kinds of affirmative
defense? So an affirmative defense presupposes that there is
an admission of the material allegation but because there is a
new matter, the other party does not admit liability because
of this new matter. For instance, payment.
When you raise affirmative defenses, it will not amount to
acceptance of the jurisdiction of the court, however, in your
answer, you include affirmative reliefs in such a way that you
are accepting jurisdiction, it is now considered a voluntary
appearance and acquiescence to the court's jurisdiction
except for lack of jurisdiction on the subject matter.
Counterclaim
A counterclaim is any claim which a defending party may have
against an opposing party. It is in itself a claim or cause of
action interposed in an answer. It partakes of a complaint by
the defendant against the plaintiff. It is either compulsory or
permissive.
Judge Q: A counterclaim is any claim which a defending party
may have against an opposing party. This is typically
introduced in the answer. It partakes of a complaint by the
defendant against the plaintiff.
Two types of counterclaim. It is imperative that we make a
proper distinction because different rules apply. A compulsory
counterclaim is one which, being cognizable by the regular
courts of justice, arises out of or is connected with the
transaction or occurrence constituting the subject matter of
the opposing party’s claim and does not require for its
adjudication, the presence of third parties of whom the court
cannot acquire jurisdiction. Why considered compulsory?
because answering party must include it in his answer
whereas a permissive counterclaim is a counterclaim which
does not arise out of nor is it necessarily connected with the
subject matter of the opposing party’s claim. there is an
absence of logical connection with the subject matter of the
complaint.
Compulsory Counterclaim
A compulsory counterclaim is one which, being cognizable by
the regular courts of justice, arises out of or is connected with
the transaction or occurrence constituting the subject matter
of the opposing party’s claim and does not require for its
adjudication, the presence of third parties of whom the court
cannot acquire jurisdiction. Such a counterclaim must be
within the jurisdiction of the court both as to the amount and
the nature thereof, except that in an original action before the
RTC, the counterclaim may be considered compulsory
regardless of the amount. A compulsory counterclaim not
raised in the same action is barred, unless otherwise allowed
by these Rules.
Note: It is a counterclaim which arises out of the same
transaction which is the same subject matter of the plaintiff’s
complaint. Such counterclaim is very much related to the
cause of action in the complaint.
If your counterclaim is compulsory, you must have to set that
up in your answer, otherwise it is deemed waived.
It is compulsory where:
a. It is cognizable by a regular court of justice.
b. It arises out of, or is necessarily connected with the
transaction or occurrence that is the subject matter of the
opposing party’s claim
c. It does not require for its adjudication the presence of
third parties whom the court cannot acquired jurisdiction
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d. The trial court has jurisdiction to entertain the claim, option to file a separate
except that in an original action before the RTC, the counterclaim.
counterclaim may be considered compulsory regardless Need not be answered. Will Must be answered,
of the amount. not be considered in default otherwise default.
e. The defending party has a counterclaim at the time he Not an initiatory pleading Initiatory pleading
files his answer. Need not be accompanied Must be accompanied by a
by a certification against certification against forum
Note: Even if the compulsory counterclaim falls below the forum shopping and shopping and whenever
jurisdictional amount of the RTC, such counterclaim may be certificate to file action by required by law ,also a
pleaded as long as the original action is filed before the RTC. the Lupong Tagapamayapa. certificate to file action by
the Lupong Tagapamaya.
But if the original action is filed before the MTC and my Requirement that the court Must be within the
compulsory counterclaim is beyond the jurisdictional amount has jurisdiction to entertain jurisdiction of the court
of the MTC, then that cannot be pleaded by way of both as to the amount and where the case is pending
counterclaim in the action before the MTC because the nature. Relevant as to cases and cognizably by regular
exception applies only where the main action is filed before filed in the MTC. courts of justice.
the RTC.

The tests to determine whether or not a counterclaim is Effect on the Counterclaim when the complaint is
compulsory are: dismissed
a. Issues- Are the issues of fact or law raised by the The nature of the counterclaim notwithstanding, the dismissal
counterclaim largely the same? of the complaint does not ipso jure result in the dismissal of
b. Res judicata- Would res judicata bar a subsequent suit on the counterclaim, and the latter may remain for independent
defendant’s claim absent the compulsory counterclaim adjudication of the court, provided that such counterclaim,
rule? states a sufficient cause of action and does not labor under
c. Evidence- Will substantially the same evidence support or any infirmity that may warrant its outright dismissal. Stated
refute plaintiff’s claim as well as the defendant’s differently, the jurisdiction of the court over the counterclaim
counterclaim? that appears to be valid on its face, including the grant of any
d. Logical Relation-Is there any logical relationship between relief thereunder, is not abated by the dismissal of the action.
the claim and the counterclaim? The court’s authority to proceed with the disposition of the
counterclaim independent of the main action is premised on
Permissive Counterclaim the fact that the counterclaim, on its own, raises a novel
Permissive counterclaim is a counterclaim which does not question which may be aptly adjudicated by the court based
arise out of nor is it necessarily connected with the subject on its own merits and evidentiary support.
matter of the opposing party’s claim. There is an absence of
logical connection with the subject matter of the complaint. It Judge Q: What happens if the complaint or main action is
is not barred even if not set up in the action. dismissed? Does it mean that the counterclaim is also
dismissed? That is a very important question that needs to be
Note: If your claim is permissive, you can file it separately answered because even practitioners are confused on how to
anytime. go about the counterclaim. The rule is if a ground to dismiss
is pleaded as an affirmative defense and the court dismisses
The requirements of a permissive counterclaim are: the complaint, the counterclaim (compulsory or permissive) is
a. It does not require for its adjudication the presence of not dismissed. How should the defending party pursue his
third parties of whom the court cannot acquire jurisdiction counterclaim notwithstanding the order of dismissal?
b. It must be within the jurisdiction of the court wherein the 1. He will now pray to the court to allow him to adduce
case is pending and is cognizable by the regular courts of evidence in support of his counterclaim so the court will allow
justice him to present evidence in support of his counterclaim
c. It does not arise out of the same transaction or series of 2. When the plaintiff himself files a motion to dismiss after the
transactions subject of the complaint defendant has field an answer with counterclaim. if the court
d. Payment of correct docket fee grants the motion to dismiss, the same is limited only to the
complaint. it shall be without prejudice to the right of the
Importance to Determine the Nature of Counterclaim defendant to prosecute his counterclaim in a separate action
1. If the nature of the counterclaim is considered as unless within 15 days from notice of the motion, manifests his
compulsory, you don’t have to pay for the filing fee. preference to have his counterclaim resolved in the same
2. If the counterclaim is compulsory, it must be pleaded action (sec 2, rule 17)
in the very same action, otherwise, it is barred 3. When the complaint is dismissed through the fault of the
forever, unless otherwise provided for under the plaintiff and at a time when a counterclaim has already been
Rules. set up, the dismissal is without prejudice to the right of the
defendant to prosecute his counterclaim in the same or
Compulsory Permissive separate action (sec 3, rule 17)---basta mo survive ang
Counterclaim Counterclaim counterclaim
Does not require for its May require for its
adjudication the presence of adjudication the presence of Now what if it is the defendant who files a motion to dismiss?
third parties third parties. Not applied to So in the examples, i gave earlier, it is the plaintiff. What
all, only some. happens if it is the defendant? He did not set it up in his
Barred if not set up in the It is not barred even if not affirmative defenses but files a motion to dismiss (financial
action set up in the action because building corporation v forbes park association). Court said that
the defendant has the if the dismissal of the main action results in the dismissal of

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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the counterclaim already filed, the filing of the motion to
dismiss is an implied waiver of the compulsory counterclaim.
A compulsory counterclaim is auxiliary to the original suit and
derives its jurisdictional support therefrom. A counterclaim
presupposes the existence of a claim against the party filing
the counterclaim. Hence, when there is no claim against the
counterclaimant, the counterclaim is improper and it must be
dismissed, more so where the complaint is dismissed at the
instance of the counterclaimant. In other words, if the
dismissal of the main action results in the dismissal of the
counterclaim already filed, it stands to reason that the filing
of a motion to dismiss the complaint is an implied waiver of
the compulsory counterclaim because the grant of the motion
ultimately results in the dismissal of the counterclaim.
Cross-claims
A cross-claim is any claim by one party against a co-party
arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counterclaim
therein. Such cross-claim may cover all or part of the original
claim.
Note: A cross-claim is actually a form of a claim where the
defendant will pass on the blame to his co-defendant.
Requisites of a cross-claim
1. A claim by one party against a co-party
2. It must arise out of the subject of the complaint or
of the counterclaim
3. The cross-claimant is prejudiced by the claim against
him by the opposing party.
Ruiz v CA
The Supreme Court ruled that when the main action is
dismissed, a cross claim must also be dismissed. The life of a
cross claim depends on the life of the main action such that is
the main action is dismissed, the cross claim will have to be
automatically dismissed.
A cross claim could not be the subject of an independent
adjudication. Once it loses the nexus upon which its life
depended, then it must also be dismissed.
GR: Barred if not set up
XCP: Thorough oversight, inadvertence, or excusable
negligence or when justice requires it may still be set up with
leave of court by amendment before judgment.
1999 Bar: Distinguish a counterclaim from a cross-claim.
A counterclaim is distinguished from a cross-claim in that a
cross-claim is any claim by one party against a co-party arising
out of the transaction or occurrence that is the subject matter
either of the original action or a counterclaim therein. A
counterclaim is against a co-party.
Counterclaim Cross-claim
Filed by the defendant Filed by the defendant
against the plaintiff against a co-defendant.
May be asserted whether or Cross claims must always
not it arises out of the same arise out of the same
transaction for as long as it transaction or occurrence
is a permissive counterclaim that is the subject matter of
the action or at the very
least, the counterclaim
therein
A counterclaim (especially The life of the cross-claim
permissive), even if the depends on the life of the
main action is dismissed, main action. A cross-claim is
merely a consequence of
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
the counterclaim may still the case filed by the plaintiff
survive. against the defendant.
Where the main action is
dismissed, the cross-claim is
also dismissed.0020
Third (fourth, etc.) party complaints
It 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.
The third (fourth, etc.)-party complaint shall be denied
admission, and the court shall require the defendant to
institute a separate action, where: (a) the third (fourth, etc.)-
party defendant cannot be located within thirty calendar days
from the grant of such leave; (b) matters extraneous to the
issue in the principal case are raised or (c) the effect would
be to introduce a new and separate controversy into the
action.
The admission of a third-party complaint lies within the sound
discretion of the trial court. If leave to file a third-party
complaint is denied, then the proper remedy is to file a
separate case, not to insist on the admission of the third-party
complaint all the way up to the Court. (Note: But you can still
appeal, if you want)
Purpose of third party complaint
1. Contribution
2. Indemnity
3. Subrogation
4. Any other relief in respect to opponent’s claim
Four Tests to Determine Propriety of Third-Party Complaint
1. Whether it arises out of the same transaction on which
plaintiff’s claim is based
2. Whether the third-party’s complaint, although arising
out of another transaction, is connected with the
plaintiff’s claim
3. Whether this-party defendant would be liable to the
original plaintiff’s claim. Although the third-party
defendant’s liability arises out of another transaction
4. Whether the third-party defendant may assert any
defense which the third-party plaintiff has or may have
against plaintiff’s claim
Note: 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 ancillary to and is a continuation of the main action.
Judge Q: 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.
Leave of Court is Necessary
A third (fourth, etc. )- party complaint cannot be filed
immediately. It is necessary 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. The permission of the court must be secured.
The court may deny the same if:
a. A third (fourth, etc. )- party defendant cannot be
located within 30 days from the grant of such leave
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b. Matters extraneous to the issue in the principal case
are raised
c. The effect would be to introduce a new and separate
controversy into the action.
Third-Party Complaint Cross Claim
Must be related to the main Must arise from the action
action or at least, counterclaim in
the principal action
It is filed against a person It is filed against a person
who is not an originally who is already a party in the
impleaded defendant action
Requires leave of court Does not require leave of
court
Requires payment of docket Does not require payment
fee like a permissive of docket fee
counterclaim
Complaint-in-Intervention
Complaint-in-intervention is a pleading whereby a third party
asserts a claim against either or all of the original parties. If
the pleading seeks to unite with the defending party in
resisting a claim against the latter, he shall file an answer-in-
intervention.
If at any time before judgment, a person not a party to the
action believes that he has a legal interest in the matter in
litigation in a case in which he is not a party, he may, with
leave of court, file a complaint-in-intervention in the action if
he asserts a claim against one or all of the parties.
Note: Intervention is not a matter of right but may be
permitted when the applicant shows facts which satisfy the
requirements of the statute authorizing intervention. The
allowance or disallowance of a motion for intervention rests
on the sound discretion of the court after consideration of the
appropriate circumstances. It is not an absolute right.
Judge Q: Complaint-in-intervention is a pleading whereby a
third party asserts a claim against either or all of the original
parties.
It is the remedy by which a third part, not originally impleaded
in a proceeding, becomes a litigant therein to enable him to
protect or preserve a right or interest which may be affected
by such proceeding. It is an answer in intervention when the
intervenor unites with the defending party in resisting a claim
against the latter (sec 3, rule 19). Intervention is never an
independent action, it is merely ancillary and supplemental to
an existing litigation, and in subordination to the main
proceeding.
example niya is torrens title na wala na transfer--nya napalit
sa lain---so need na sya mo intervene. The purpose is to settle
in one action and to settle the whole controversy among all
the persons involved who are interested in the case.
Requisites for intervention
Intervention shall be allowed when a person has:
a. A legal interest in the matter in litigation
b. A legal interest in the success of any of the parties
c. An interest against both parties
d. When he is so situated as to be adversely affected
by a distribution or disposition of property in the
custody of the court or an officer thereof
In granting or denying the intervention, the court is required
to balance certain considerations:
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
a. Whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties
b. Whether or not the intervenor’s rights may be fully
protected in a separate proceeding
Judge Q: Just like in the case of Mactan Cebu v Heirs of Minoza
Court did not allow them to intervene because to allow
intervention would result to delay because the main issue to
be resolved is whether those with legal interest has the right
over the land formerly sold to MCIAA. So ma delay njud
because they need to adduce evidence whereas the main
issue is w/n MCIA has right to retain ownership over the
property so court said that an independent controversy cannot
be injected into a suit by intervention, hence, such
intervention will not be allowed where it would enlarge the
issues in the action and expand the scope of the remedies. It
is not proper where there are certain facts giving the
intervenor’s case an aspect peculiar to himself and
differentiating it clearly from that of the original parties; the
proper course is for the would-be intervenor to litigate his
claim in a separate suit.21 Intervention is not intended to
change the nature and character of the action itself, or to stop
or delay the placid operation of the machinery of the trial. The
remedy of intervention is not proper where it will have the
effect of retarding the principal suit or delaying the trial of the
action.
How must it be made? with leave of court---consider the
requisites in sec1 rule 19. A motion to intervene may be filed
anytime before judgment----so file ka dapat motion with leave
of court to intervene---so u file a motion for you to be allowed
to intervene and attached to your motion, you must already
include either the complaint or answer in intervention so court
may then allow you to intervene or not.
Copy of the pleadings in intervention shall be attached to the
motion and served on the original parties (sec2, rule 19)
When should you file motion to intervene?
Anytime before rendition of judgment of trial court
Exceptions:
1. Appeal but only with respect to indispensable parties
2. Government case where there is final judgment
3. Transcendental importance
What happens if denied?
Appeal is proper remedy. An intervenor's right to appeal only
applies to the denial of his intervention. Not being a party to
the case, he cannot question the decision of the court. He can
only question the striking of his motion for intervention so
remedy is file an appeal but only with respect to the denial of
his intervention. The appeal is only limited to the decision of
the court denying his motion.
Meaning of legal interest
The legal interest must be one that is actual, material, direct
and of an immediate character, not merely contingent or
expectant, so that the intervenor will either gain or lose by the
direct legal operation of the judgment.
The interest contemplated by law must be actual, substantial,
material, direct and immediate, and not simply contingent or
expectant. It must be of such direct and immediate character
that the intervenor will either gain or lose by the direct legal
operation and effect of the judgment. Otherwise, if persons
not parties to the action were allowed to intervene,
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proceedings would become unnecessarily complicated,
expensive and interminable.
Procedure for intervention
1. The motion and pleading shall be served upon the
original parties.
2. The intervenor shall file a motion for intervention
attaching thereto his pleading-in-intervention. The
pleading to be filed depends upon the purpose of the
intervention.
3. The answer to the complaint-in-intervention shall be
filed within 15 days from notice of the order
admitting the same, unless a different period is fixed
by the courts.
Time for Intervention
The motion to intervene may be filed at any time before
rendition of judgment by the trial court. Hence, intervention
after trial and decision can no longer be permitted.
Reply
All new matters alleged in the answer are deemed
controverted. If the plaintiff wishes to interpose any claims
arising out of the new matters so alleged, such claims shall be
set forth in an amended or supplemental complaint. However,
the plaintiff may file a reply only if the defending party
attaches an actionable document to his or her answer.
A reply is a pleading, the office or function of which is to deny,
or allege facts in denial or avoidance of new matters alleged
in, or relating to, said actionable document.
In the event of an actionable document attached to the reply,
the defendant may file a rejoinder if the same is based solely
on an actionable document.
When is reply mandatory?
When the answer is based on actionable document
Distinguish “Reply” from “Answer to Counterclaim”
A reply is a response to the defense set up by the defendant
in his answer, whereas, the answer to counterclaim is a
response of the plaintiff to the counterclaim of the defendant.
Secondly, the filing of a reply is generally optional while the
filing of an answer to counterclaim is mandatory.
Note: If there are new matters raised in the answer of the
defendant, all new matters raised in the answer are deemed
controverted or denied by the plaintiff. Reply is necessary only
if the answer of the defendant which raises new matters
contains an actionable document. If there is none, there is
no need to file a reply.
Judge Q: The rule is very clear. You are not allowed to file a
reply but you have the option if there is an actionable
document. Now what if the plaintiff still needs to controvert?
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. So the rule itself also
says that he has the option not to file a reply but set it forth
in an amended or supplemental complaint.
Under the old rules, reply may or may not be filed---but in the
new one, not allowed na sya if the answer does not introduce
an actionable document. A REPLY IS NOT ALLOWED TO BE
FILED IF YOU WILL NOT CONTROVERT THE DUE EXECUTION
AND GENUINESS OF THE ACTIONABLE DOCUMENT THAT
WAS INTRODUCED IN THE ANSWER SO IF THE PLAINTIFF
WANTS TO CONTROVERT, HE CAN FILE AN AMENDED OR
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
SUPPLEMENTATL COMPLAINT WHICH MUST BE WITH LEAVE
OF COURT SUBJECT TO THE GRANT. Why? BECAUSE AN
ANSWER HAS ALREADY BEEN FILED SO THAT ONE IS VERY
CLEAR.
A reply is typically a pleading filed by the plaintiff in response
to the answer. First is complaint then answer for 30 days then
reply. General rule is reply is not allowed. Exception is
only when there is an actionable document attached
to the answer.
Parts of a Pleading
➢ Caption
➢ Text or body
➢ Signature and Address
➢ Verification
➢ Certification against forum shopping
Captions of the Pleading
The caption contains the following: (a) name of the court; (b)
title of the action; and (c) docket number, if assigned.
Title of the Action
The title of the action contains the names of the parties whose
participation in the case shall be indicated. This means that
the parties shall be indicated as either plaintiff or defendant.
They shall all be named in the original complaint or petition;
but in subsequent pleadings, it shall be sufficient if the name
of the first party on each side be stated with an appropriate
indication whether there are other parties.
Their respective participation in the case shall be indicated.
The Body
The body of the pleading sets forth its designation, the
allegations of the party’s claims or defenses, the relief prayed
for, and the date of the pleading.
Paragraphs
The allegations in the body of a pleading shall be divided into
paragraphs so numbered as to be readily identified, each of
which shall contain a statement of a single set of
circumstances so far as that can be done with convenience. A
paragraph may be referred to by its number in all succeeding
pleadings.
Every pleading, including the complaint, is not supposed to
allege conclusions. A pleading must only aver facts because
conclusions are for the court to make.
The rule requires that a pleading need not only contain the
allegations of “ultimate facts,” i.e., the facts essential to a
party’s cause of action or defense or such acts as are so
essential that they cannot be stricken out without leaving the
statement of the cause of action inadequate. The ultimate
facts are to be stated in a methodical and logical form, and in
a plain, concise and direct manner.
Headings
When two or more causes of action are joined, the statement
of the first shall be prefaced by the words “first cause of
action,” of the second cause of action by the words, “second
cause of action” and so on.
Relief
The pleading shall specify the relief sought, but it may add a
general prayer for such further or other relief as may be
deemed just or equitable (prayer). It is a settled rule that a
court cannot grant a relief not prayed for in the pleadings or
in excess of that being sought.
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Date
Every pleading shall be dated.
Signature and address
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.
In the absence of a proper notice to the court of a change of
address, service upon the parties must be made at the last
address of their counsel of record.
Therefore, only the signature of either the party himself or his
counsel operates to validly convert a pleading from one that
is unsigned to one that is signed.
Effect of an unsigned pleading
An unsigned pleading produces no legal effect.
Significance of the signature of counsel
The signature of the 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. A counsel’s
signature on a pleading is such an integral part of a pleading
that failure to comply with this requirement reduces a pleading
to a mere scrap of paper totally bereft of legal effect.
Sec. 3 (a), Rule 7. Every pleading and other written
submissions to the court must be signed by the party or
counsel representing him or her
(b) The signature of counsel constitutes a certificate by him
or her that he or she has read the pleading and document;
that to the best of his or her knowledge, information, and
belief formed after an inquiry reasonable under the
circumstances:
(1) It is not being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation;
(2) The claims, defenses, and other legal contentions are
warranted by existing law or jurisprudence, or by a non-
frivolous argument for extending, modifying, or reversing
existing jurisprudence;
(3) The factual contentions have evidentiary support or, if
specifically, so identified, will likely have evidentiary
support after availment of the modes of discovery under
the Rules and
(4) The denials of factual contentions are warranted on the
evidence or, if specifically, so identified, are reasonably
based on belief or a lack of information.
Judge Q: What is interesting about the amendment of the
rules is that the signature includes a lot of warranties.
When counsel is subject to disciplinary action in
connection with pleadings
A counsel shall be subject to disciplinary action in the following
cases: (a) when he deliberately files an unsigned pleading; (b)
when he deliberately files an unsigned pleading; (c) when he
alleges in the pleading scandalous or indecent matter; or (d)
when he fails to promptly report to the court a change of his
address.
Effect of violation of the Rule
Sec. 3 (c), Rule 7. If the court determines, on motion or
motu proprio and after notice and hearing, that the Rule has
been violated, it may impose an appropriate section or refer
such violation to the proper office for disciplinary action, on
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
any attorney, law firm, or party that violated the rule, or is
responsible for the violation. Absent exceptional
circumstances, a law firm shall be held jointly and severally
liable for a violation committed by its partner, associate or
employee. The sanction may include, but shall not be limited
to, non-monetary directive or sanction; an order to pay a
penalty in court; or if imposed on motion and warranted for
effective deterrence, an order directing payment to the
movant of part or all of the reasonable attorney's fees and
other expenses directly resulting from the violation, including
attorney’s fees for the filing of the motion for sanction. The
lawyer or law firm cannot pass on the monetary penalty to the
client.
Verification
Pleadings need not be under oath, verified or accompanied to
an affidavit, except when so required by law or rule.
A pleading is verified by an affidavit of an affiant duly
authorized to sign said verification. The authorization of the
affiant to act on behalf of a party, whether in the form of a
secretary’s certificate or a special power of attorney, should
be attached to the pleading, and shall allege the following
attestations:
a. The allegations in the pleading are true and correct
based on his or her personal knowledge, or based on
authentic documents
b. The pleading is not filed to harass, cause
unnecessary delay, or needlessly increase the cost of
litigation
c. The factual allegations therein have evidentiary
support or, if specifically so identified, will likewise
have evidentiary support after a reasonable
opportunity for discovery.
The signature of the affiant shall further serve as a
certification of the truthfulness of the allegation in the
pleading.
A pleading required to be verified that contains a verification
based on “information and belief” or upon “knowledge,
information and belief,” or lacks a proper verification, shall be
treated as an unsigned pleading.
Note: The pleader’s affirmation of the truth and correctness
of his allegations in the pleading must be based not only on
his “knowledge and belief” BUT on his “personal
knowledge” or “based on authentic record.”
How a pleading is verified
The affidavit declares that : (a) the affiant has read the
pleading; and (b) the allegations therein are true and correct
of his personal knowledge or based on authentic records.
Should every pleading be verified?
NO. As a general rule, pleadings need not be verified. It is only
required when the law so provides as in the following:
a. Petition for Relief from Judgment
b. Petition for Review under Rule 42
c. Petition for Review under Rule 43
d. Appeal by Certiorari under Rule 45
e. Petition for Annulment of Judgment of RTC
f. Petition for certiorari, prohibition, mandamus, etc.
When deemed substantially complied with
The verification requirement is “deemed substantially
complied with when one who has an ample knowledge to sear
to the truth of the allegations in the complaint or petition signs
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the verification, and when matters alleged in the petition have
been made in good faith or are true and correct.”
Datem v Alphaland (2021)
It is settled that the verification of a pleading is only a formal,
not a jurisdictional requirement intended to secure the
assurance that the matters alleged in a pleading are true and
correct.
Significance of a verification
The verification requirement is significant, as 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 proper verification is cause to treat the pleading as
unsigned and dismissible.
It is to hold the pleader liable for perjury if it turns out that
the statements in the pleading are not true. If a document is
verified, meaning it is notarized by a lawyer, you will be held
liable for perjury. If the law does not require the pleading to
be verified, then you should not verify the pleading.
Effect of lack of verification or of a defective
verification
A pleading required to be verified but lacks the proper
verification shall be treated as an unsigned pleading. Hence,
it produces no legal effect.
It has, however, been held that the absence of a verification
or the non-compliance with the verification requirement does
not necessarily render the pleading defective. It is only a
formal and not a jurisdiction requirement. The requirement is
a condition affecting only the form of the pleading. The court
may order its submission or correction, or act on the pleading
if the attending circumstances are such that strict compliance
with the Rule may be dispensed with in order that the ends of
justice may be served. The rule is in keeping with the principle
that rules of procedure are established to secure substantial
justice and that technical requirements may be dispensed with
in meritorious cases.
Datem v Alphaland (2021)
The Court laid down the following guidelines with respect to
non-compliance with the requirements on or submission of a
defective verification:
1. A distinction must be made between non-compliance with
the requirement on or submission of defective
verification, and non-compliance with the requirement on
or submission of defective certification against forum
shopping.
2. As to verification, non-compliance therewith or a defect
therein does not necessarily render the pleading fatally
defective. The court may order its submission or
correction or act on the pleading if the attending
circumstances are such that strict compliance with the
Rule may be dispensed with in order that the ends of
justice may be served thereby.
3. Verification is deemed substantially complied with when
one who has ample knowledge to swear to the truth of
the allegations in the complaint or petition signs the
verification, and when matters alleged in the petition
have been made in good faith or are true and correct.
Variance in dates of Pleading Filed
A variance in the dates is a matter that may be satisfactorily
be explained. To demand the litigants to read the very same
document that is to be filed in court is too rigorous a
requirement since what the Rules require is for a party to read
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
the contents of a pleading without any specific requirement
on the form or manner in which the reading is to be done.
What is important is that efforts were made to satisfy the
objective of the Rule, that is, to ensure good faith and veracity
in the allegations of a pleading.
Other requirements
All pleadings, motions and papers filed in court by counsel has
to indicate his professional tax receipt (PTR), current IBP
receipt indicating its date of issue, the purpose of which is to
see to it that he pays his tax and membership due regularly,
MCLE compliance and Roll number; plus contact number, and
disc for Supreme Court bound petitions.
Certification against forum shopping
The certification against forum shopping is a sworn statement
certifying to the following matters:
a. 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
b. That if there is such other pending action or claim, a
complete statement of the present status thereof
c. 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 (5) calendar days
therefrom to the court wherein his aforesaid complaint
or initiatory pleading has been filed.
The authorization of the affiant to act on behalf of a party,
whether in the form of a secretary’s certificate or a special
power of attorney, should be attached to the pleading.
Failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other
initiatory pleading but shall be cause for the dismissal of the
case without prejudice, unless otherwise provided, upon
motion and after hearing. The submission of a false
certification or non-compliance with any of the undertakings
therein shall constitute indirect contempt of court, without
prejudice to the corresponding administrative and criminal
actions. If the acts of the party or his counsel clearly constitute
willful and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for
administrative sanctions.
Certificate applies to
The requirements involving the certification against forum
shopping apply both to natural and juridical persons since no
distinction is made between natural and juridical persons by
the Rules of Court.
Further, it is only required in INITIATORY PLEADINGS.
Certification is not a jurisdictional requirement
The certificate is mandatory under Sec. 5, Rule 7, but not
jurisdictional.
Purpose of the certification
The certification constitutes an assurance given to the court
or other tribunal that there are no other pending cases
involving basically the same parties, issues and causes of
action. The purpose of prohibiting forum shopping is also to
prevent contradictory decisions of two or more courts on the
same controversy.
The rationale is that a party should not be allowed to pursue
simultaneous remedies in two different fora. Filing multiple
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petitions or complaints constitutes abuse of court processes,
which tends to degrade the administration of justice, wreaks
havoc upon orderly judicial procedure, and adds to the
congestion of the heavily burdened dockets of the courts.
Meaning of forum shopping
Forum shopping is the act by a party of repetitively availing of
several judicial remedies in different courts, simultaneously or
successively, all substantially founded on the same
transactions and the same essential facts or circumstances,
and all raising substantially the same issues either pending or
already resolved adversely by some other court.
Specifically, there is forum shopping where there exist:
➢ Identity of parties, or at least such parties as
represent the same interests in both actions
➢ Identity of rights asserted and relief prayed for, the
relief being founded on the same facts
➢ The identity of the two preceding particulars is such
that any judgment rendered in the pending case,
regardless of which party is successful, would
amount to res judicata in the other case.
Three ways of committing forum shopping
1. Filing multiple cases based on the same cause of
action and with the same prayer, the previous case
not having been resolved yet (where the ground for
dismissal is litis pendentia)
2. Filing multiple cases based on the same cause of
action and the same prayer, the previous case having
been finally resolved (where the ground for dismissal
is res judicata)
3. Filing multiple cases based on the same cause of
action, but with different prayers (splitting of causes
of action , where the ground for dismissal is also
either litis pendentia or res judicata)
Determination of the existence of 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. Otherwise
stated, to determine the existence of forum shopping, the test
is to see whether in the two or more cases pending, there is:
(a) identity of parties; (b) identity of rights or causes of action;
and (c) identity of reliefs sought.
Where the reliefs sought in the two actions are different, there
is no forum shopping even if the parties in the actions are the
same. Where one action is for a permanent injunction and the
other is a petition for certiorari, there is no identity of reliefs.
What pleadings require a certification against forum
shopping (Initiatory pleadings)
1. Complaint
2. Permissive counterclaim
3. Cross-claim
4. Third (fourth, etc.) party complaint
5. Complaint-in-intervention
Certificate of forum shopping, who executes
It is the plaintiff or principal party who executes the
certification under oath, and not the attorney. It must be
signed by the party himself and cannot be signed by his
counsels. As a general and prevailing rule, a certification
signed by counsel is a defective certification and is a valid
cause for dismissal.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
If, however, for justifiable reasons, the party-pleader is unable
to sign, he must execute a special power of attorney
designating his counsel of record to sign in his behalf.
Certificate of forum shopping, who executes:
Rationale
It is the petitioner and not the counsel who is in the best
petition to know whether he or it actually filed or caused the
filing of a petition. It is only the petitioner who has actual
knowledge whether he has initiated similar action/s in other
courts, agencies or tribunals.
Rule if there are several plaintiffs or petitioners;
exception
The certification against forum shopping must be signed by all
the plaintiffs or petitioners in a case; otherwise, those who did
not sign will be dropped as parties to the case. Under
reasonable or justiciable circumstances, however, as when the
plaintiffs share a common interest and invoke a common
cause of action or defense, the signature of only one of them
substantially complies with the rule.
The above rule will not be applied if dishonesty attended the
signing of the certificate as when it was made to appear that
one of the petitioners had signed the certification against
forum shopping despite his having passed away seven years
before.
Juridical entities
Juridical entities can only perform physical acts through
properly delegated individuals. Hence, the certification may be
executed by properly authorized persons.
With respect to a corporation, the certification must be
executed by an officer or member of the board of directors or
by one who is duly authorized by a resolution of the board of
directors; otherwise, the complaint will have to be dismissed.
Exception: The following can sign the verification and
certification without need of a board resolution.
1. Chairperson of the Board of Directors
2. President of a corporation
3. General Manager or Acting General Manager
4. Personnel Officer
5. Employment Specialist in a labor case
Q: What if the board resolution was submitted
belatedly, however, it was antedated?
Yes. For as long as they can prove that at the time of signing,
they were actually authorized even if the sec certificate was
issued much much later as long as it is stated that the board
resolution issued a certification on the said date. If you really
analyze the case in pal, the court found out that the board
resolution was only issued after they issued the resolution.
Q: Would initiatory pleadings require verification and
certification against forum shopping?
Both. Usually practice is, a party is made to execute a
verification and certification against forum shopping---so
joined na sila---so title is verification and certification of non-
forum shopping so in one document, there is already
compliance under the rules.
Q: since in the case of midland, pwede ra but what if
naay lain?
We have to follow the person named in the board resolution.
Midland rule only applies in the absence of a board resolution
because this is only an exception, but for me, it is more
prudent to first issue the board resolution in any case just to
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be sure, just to be on the safe side, because one of the things
the court will consider is if there is authority and if you file a
case in court, and the presiding judge might have missed this
ruling, probably dismiss the case because of non-compliance
so might as well comply.
Now, if there is violation of this rule, what is the consequence?
General rule is it should be raised at the earliest opportunity
in a motion to dismiss or similar pleading. That was the
instruction in one case but since the entire rule has been
deleted and transposed in a different rule, it may be raised as
one of the affirmative defenses. However, it can be raised in
later stages even if the proceedings have already started for
as long as the violation arises from or will result in the loss of
jurisdiction over the subject matter or if the ground is
pendency of the same parties in the same cause meaning litis
pendentia, res judicata--that's why i pointed out earlier that
the same principles in the splitting of action are the same and
statute of limitations has already set in.
No forum shopping in simultaneously filing a quo
warranto petition and a complaint for impeachment
Quo warranto and impeachment may proceed independently
of each other as these remedies are distinct as to (1)
jurisdiction, (2) grounds, (3) applicable rules pertaining to
initiation, filing and dismissal, and (4) limitations. The
respondent’s title to hold a public office is the issue in quo
warranto petition while impeachment necessarily presupposes
that the respondent legally holds the public office.
Pleadings requiring a certification against forum
shopping
The certification against forum shopping applies to the
complaint and other initiatory pleadings asserting a claim for
relief.
A comment is not an initiatory pleading. A comment required
by an appellate tribunal is merely an expression of the views
and observations of a respondent for the purpose of giving
the court sufficient information as to whether the petition is
legally proper as a remedy to the acts complained of. It does
not require a certification against forum shopping.
Applicability to special civil actions
The Court held that the rule requiring a certification against
forum shopping applies as well to special civil action since a
special civil action is governed by the rules for ordinary civil
actions, subject to the specific rules prescribed for a special
civil action.
Effects of non-compliance with the rule on
certification against forum shopping
➢ A violation of the rule requiring the certification against
forum shopping does not authorize the court to dismiss a
case on its own motion or initiative. The rule requires that
the dismissal be upon motion and hearing.
➢ If the case is dismissed for failure to comply with the
certification requirement, the dismissal is, as a rule,
“without prejudice,” unless the order of dismissal
otherwise provides. Hence, where the dismissal is silent
as to the character of the dismissal, the dismissal is to be
presumed without prejudice to the filing of the complaint.
➢ Q: If a complaint is dismissed for failure to comply with
the required certification against forum shopping, may
the plaintiff appeal from the order of dismissal where such
dismissal is without prejudice? No. This is because an
order dismissing an action without prejudice is, as a rule,
not appealable. The remedy provided for under Sec. 1 of
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Rule 41 is to avail of the appropriate special civil action
under Rule 65.
➢ The failure to submit a certification against forum
shopping is a ground for dismissal, separate and distinct
from forum shopping as a ground for dismissal.
Compliance with the certification against forum shopping
is separate from, and independent of, the avoidance of
forum shopping.
GR: Non-compliance or a defect in the certification is not
curable by its subsequent submission or correction.
Exception: The Court exercised leniency and relaxed the rules
on the ground of substantial compliance due to the presence
of special circumstances or compelling reasons.
Effect of willful and deliberate forum shopping;
dismissal of all pending claims
If the acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be a ground
for summary dismissal. Here, no motion to dismiss and
hearing are required. The dismissal in this case is with
prejudice and shall constitute direct contempt, as well as
cause for administrative sanctions.
Jurisprudence holds that if the forum shopping is not
considered willful and deliberate, the subsequent case shall be
dismissed without prejudice on the ground of either litis
pendentia or res judicata.
Effect of submission of a false certification
Under the Rules, the submission of a false certification shall
constitute indirect contempt of court without prejudice to the
corresponding administrative and criminal sanctions.
Effect of non-compliance with the undertakings
Failure to comply with the undertakings in the certification
against forum shopping has the same effect as the submission
of a false certification.
Summary Guidelines Respecting Non-Compliance with
the Requirements of or Submission of Defective,
Verification and Certification against Forum Shopping
1. A distinction must be made between non-compliance
with the requirement on or submission of defective
verification, and non-compliance with the requirement
on or submission of defective certification against forum
shopping.
2. As to verification, non-compliance therewith or a defect
therein does not necessarily render the pleading fatally
defective. The court may order its submission or
correction or act on the pleading if the attending
circumstances are such that strict compliance with the
Rule may be dispensed with in order that the ends of
justice may be served thereby.
3. Verification is deemed substantially complied with when
one who has ample knowledge to swear to the truth of
the allegations in the complaint or petition signs the
verification, and when matters alleged in the petition
have been made in good faith or are true and correct.
4. As to certification against forum shopping, non-
compliance therewith or a defect therein, unlike in
verification, is generally not curable by its subsequent
submission or correction thereof, unless there is a need
to relax the Rule on the ground of substantial
compliance or presence of special circumstances or
compelling reasons.
5. The certification against forum shopping must be
signed by all the plaintiffs or petitioners in a case;
otherwise, those who did not sign will be dropped as
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parties to the case. Under reasonable or justifiable
circumstances, however, as when all the plaintiffs or
petitioners share a common interest and invoke a
common cause of action or defense, the signature of
forum shopping substantially complies with the Rule.
6. Finally, the certification against forum shopping must
be executed by the party-pleader, not by his counsel.
If, however, for reasonable or justifiable reasons, the
party-pleader is unable to sign, he must execute a
Special Power of Attorney designating his counsel of
record to sign on his behalf.
Two Kinds of facts in a Pleading
1. Ultimate Facts
2. Evidentiary Facts
Note: Under the formal rules, when you make an allegation in
the pleading, you are supposed to state only the ultimate
facts. You should avoid divulging evidentiary matters because
these are matters that you can present during the trial. You
just state the ultimate facts without need of stating the
evidentiary matters. In the 2019 Amendments, you have to
state evidentiary facts.

Authorization of the Affiant If your pleading is based on a provision of law, you have to
Section 5 (2). The authorization of the affiant to act on quote the provision of law in your pleading- the pertinent
behalf of a party, whether in the form of a secretary’s provision thereof and the applicability to you shall be clearly
certificate or a special power of attorney, should be attached and concisely stated in the pleading.
to the pleading.
Distinguish ultimate facts from evidentiary facts.
Contents The ultimate facts support your claims or defenses while the
Section 6, Rule 7. Every pleading stating a party’s claims or evidentiary facts support the ultimate facts.
defenses shall, in addition to those mandated by Section 2,
Rule 7, state the following: Ultimate Facts Evidentiary Facts Conclusions of
(a) Names of witnesses who will be presented to prove Law
a party’s claim or defense These are the Those which are Not sustained by
(b) Summary of the witnesses’ intended testimonies, important and necessary to declarations of
provided that the judicial affidavits of said witnesses substantial facts prove the facts. It does not
shall be attached to the pleading and form an integral which either ultimate fact or aid the complaint
part thereof. Only witnesses whose judicial affidavits directly form the which furnish setting forth a
are attached to the pleading shall be presented by basis of the evidence of the cause of action.
the parties during trial. Except if a party presents plaintiff’s primary existence of some
meritorious reasons as basis for the admission of right and duty or other facts. Note: One must
additional witnesses, no other witness or affidavit directly make up not state
shall be heard or admitted by the court. the wrongful acts conclusions of
(c) Documentary and object evidence in support of the or omissions by law and
allegations contained in the pleading. the defendant. statements of
mere evidentiary
Under the Amendment, when you file a complaint you must facts as this can
indicate or incorporate in the complaint or answer the name be subjected to a
of your witnesses and ALL the judicial affidavit of your motion to strike.
witnesses must be attached to the pleading- complaint or
answer- and they shall form an integral part thereof. Even the
documentary and object evidence must be attached. Judge Q: Ultimate facts refer to the essential facts of the
claim. A fact is essential if it cannot be stricken out without
Contents, rationale leaving the statement of the cause of action.
To ensure that a person filing a case or a pleading would at
the time of filing, already have evidentiary basis to back the How do you determine whether a fact is essential to
same up, and there would be no delay caused by parties still your cause of action or defense?
trying to find the evidence as basis for the claims during the The test to determine whether the fact is essential to your
pendency of the case. cause of action is: if the statement in the pleading cannot be
deleted. Because if you delete it, the statement of your cause
General Rule: Only witnesses whose judicial affidavits are of action or defense becomes incomplete, a certain element
attached to the pleading shall be presented by the parties of cause of action disappears.
during the trial.
What are the other matters that should not be stated
Exception: If a party presents meritorious reasons as basis for in a pleading?
the admission of additional witnesses. 1. Facts which are presumed by law
2. Conclusions of fact or law
RULE 8. MANNER OF MAKING ALLEGATIONS IN 3. Matters which are in the domain of judicial notice
PLEADING need not be alleged
Section 1, Rule 8. In general. Every pleading shall contain
in a methodical and logical form, a plain, concise and direct Facts which are presumed by law
statement of the ultimate facts, including the evidence on Presumptions under the law need not be alleged in a pleading.
which the party pleading relies for his or her claim or defense, When a fact is already presumed by law, there is no need to
as the case may be. make that allegation because your cause of action would still
be complete.
If a cause of action or defense relied on is based on law, the
pertinent provisions thereof and their applicability to him or Facts that may be averred generally
her shall be clearly and concisely stated. 1. Performance or occurrence of all conditions
precedent
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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
CIVPRO |
2. Capacity to sue or be sued
3. Capacity to sue or be sued in a representative
capacity
4. Legal existence of an organized association of
persons that is made a party
5. Malice, intent, knowledge or other condition of the
mind of a person
6. Judgment or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a board or
officer without setting forth matter showing
jurisdiction to render it. An authenticated copy of the
judgment shall be attached.
7. Official documents or acts
Alternative Causes of Action or Defense
SECTION 2. Alternative Causes of Action or Defenses.
— A party may set forth two or more statements of a claim or
defense alternatively or hypothetically, either in one cause of
action or defense or in separate causes of action or defenses.
When two or more statements are made in the alternative and
one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or
more of the alternative statements.
Note: If you are not sure who between the two is liable to the
plaintiff, you can sue both of the defendants in the alternative.
How are allegations in a pleading made?
a. Condition Precedent- General
b. Capacity to Sue- Particularity
c. Fraud or Mistake- Particularity
d. Malice, intent, condition of mind- General
e. Allegations of Judgment- General
Conditions Precedent
Section 3. Conditions Precedent. In any pleading, a
general averment of the performance or occurrence of all
conditions precedent shall be sufficient.
Conditions precedent are matters which must be complied
with before a cause of action arises. When a claim is subject
to a condition precedent, the compliance of the same must be
alleged in the pleading.
Failure to comply with a condition precedent is an independent
ground for a motion to dismiss: that a condition precedent for
filing the claim has not been complied.
The following are examples of conditions precedent:
1. A tender of payment is required before making a
consignation
2. Exhaustion of administrative remedies is required in
certain cases before resorting to judicial action.
3. Prior resort to barangay conciliation proceedings is
necessary in certain cases.
4. Earnest efforts toward a compromise must be
undertaken when the suit is between members of the
same family and if no efforts were in fact made, the
case must be dismissed.
5. Arbitration may be a condition precedent when the
contract between the parties provides for arbitration
first before recourse is made to judicial remedies.
Effect of failure to comply with a condition precedent
The failure to comply with a condition precedent before the
filing of a complaint is no longer a ground for an allowable
motion to dismiss under the Amended Rules. However, it is an
affirmative defense that must be set out in the answer or else,
it is deemed waived.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Capacity
Section 4. Capacity. - Facts showing the capacity of a party
to sue or be sued or the authority of a party to sue or be sued
in a representative capacity or the legal existence of an
organized association of persons that is made a party, must
be averred. A party desiring to raise an issue as to the legal
existence of any party or the capacity of any party to sue or
be sued in a representative capacity, shall do so by specific
denial, which shall include such supporting particulars as are
peculiarly within the pleader's knowledge.
Note: State it with particularity. For example, if you sue as a
representative of a real party in interest, you must have to
particularly state the basis of your authority and attach the
special power of attorney authorizing you right to sue for and
in behalf of the real party in interest.
Fraud, mistake, condition of the mind
Section 5. Fraud, mistake, condition of the mind. In all
averments of fraud or mistake, the circumstances constituting
fraud or mistake must be stated with particularity. Malice,
intent, knowledge or other conditions of the mind of a person
may be averred generally.
Note: Fraud or mistake must be stated with particularity while
malice, intent or condition of the mind can be stated with
generality.
The particulars in alleging fraud or mistake would necessarily
include the time, place and specific acts of fraud committed
against him. These particulars would help apprise the judge
of the kind of fraud involved in the complaint. Note that under
the Civil Code of the Philippines, there are various types of
frauds. However, malice, intent or condition of the mind need
not be stated with particularity. The rule is borne out of human
experience since it is difficult to state the particulars
constituting these matters.
Example: The allegations that the defendant acted in bad
faith, arbitrarily illegally, wrongfully and in violation of law are
merely conclusions of fat or conclusions of law. It does not
state the ultimate facts.
Allegations of judgment
Section 6. Judgment- In pleading a judgment or decision
of a domestic or foreign court, judicial or quasi-judicial
tribunal, or of a board or officer, it is sufficient to aver the
judgment or decision without setting forth matter showing
jurisdiction to render it. An authenticated copy of the
judgment or decision shall be attached to the pleading.
Note: Allegations of judgment can be stated with generality.
When you invoke a judgment of a foreign court or a domestic
court, you do not have to state that the court has jurisdiction
because it is presumed that the court is vested with the proper
authority or jurisdiction to hear it. However, if there is an
authenticated copy of the judgment or decision, it must be
attached to the pleading.
Rationale
The rule is consistent with the evidentiary presumption that
“a court, or judge acting as such, whether in the Philippines
or elsewhere, was acting in the lawful exercise of jurisdiction.”
That jurisdiction is presumed is, however, only a disputable,
not a conclusive presumption.
Action or Defense Based on Document
Section 7. Action or Defense Based on Document.
Whenever an action or defense is based upon a written
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instrument or document, the substance of such instrument or
document shall be set forth in the pleading, and the original
or a copy thereof shall be attached to the pleading as an
exhibit, which shall be deemed to be a part of the pleading.
Note: No need to copy in verbatim the document in your
pleading. You just pick the portion in the document which is
relevant to your cause of action or defense. You quote the
pertinent portion and you attach the entire document as an
exhibit and part of the pleading.
However, The Amended Rules deleted the provision allowing
for the copying of the instrument of the pleading. Therefore,
such is no longer allowed as a means of pleading an actionable
document. This means that setting forth the substance of the
actionable document and the attachment of such to the
pleading is the only way to plead the document under the
Amended Rules.
Actionable Document
An actionable document is a document which serves as the
basis of plaintiff’s cause of action or the defendant’s defense.
Otherwise stated, it is a document relied upon by either the
plaintiff or defendant.
Actionable document, how pleaded
Whenever an actionable document is the basis of a pleading,
the rule specifically directs the pleader to set forth in the
pleading the substance of the instrument or the document, (a)
and to attach the original or the copy of the document to the
pleading as an exhibit and to be part of the pleading; or (b)
with like effect, to set forth in the pleading said copy of the
instrument or document. This manner of pleading a document
applies only to one which is the basis of action or defense.
Hence, if the document does not have the character of an
actionable document, as when as it is merely evidentiary, it
need not be pleaded strictly in the manner prescribed by Sec.
7, Rule 8.
How to Contest Such Document
Section 8. How to Contest Such Documents.- When an
action or defense is founded upon a written instrument, or
attached to the corresponding pleading as provided in the
preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse
party, under oath, specifically denies them, and sets forth
what he or she claims to be the facts; but the requirement of
an oath does not apply when the adverse party does not
appear to be a party to the instrument or when compliance
with an order for an inspection of the original instrument is
refused.
General Rule: The adverse party, under oath, specifically
denies them, and sets forth what he or she claims to be the
facts.
Exceptions: The requirement of an oath does not apply when:
1. The adverse party does not appear to be a party to
the instrument
2. Compliance with an order for an inspection of the
original instrument is refused.
Note: You have to deny the actionable document under oath.
Failure to answer an actionable document amounts to an
admission of the authenticity of its due execution. (or to the
admission of the genuiness and due execution of the
actionable document)
Meaning of admission
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
By the admission of the genuiness and due execution of an
instrument is meant that the party whose signature it bears
admit that he signed it or that it was signed by another for
him with his authority; that at the time it was signed, it was
in words and figures exactly as set out in the pleadings of the
party relying upon it; that the document was delivered; and
that any formal requisites required by law, such as a seal,
acknowledgment, or revenue stamp, which it lacks, are
waived by him.
Effect of failure to deny under oath an actionable document
When a party fails to deny, the genuiness and due execution
of the actionable document is deemed admitted. As such,
defenses that are implied from said admission are necessarily
waived like the defenses of forgery of the document, lack of
authority and so on.
Defenses not cut off by the admission of genuiness and due
execution
The following defenses, among others, may be interposed
despite the implied admission of the genuiness and due
execution of the document: (a) payment or non-payment; (b)
want of consideration; (c) illegality of consideration; (d) usury
and (e) fraud. These defenses are not inconsistent with the
admission of the genuiness and due execution of the
instrument and are not, therefore barred.
Official Document or act
Section 9. Official document or act. – In pleading an
official document or official act, it is sufficient to aver that the
document was issued or the act was done in compliance with
law.
Specific Denial
Section 10. Specific Denial.- A defendant must specify
each material allegation of fact the truth of which he or she
does not admit and, whenever practicable, shall set forth the
substance of the matters upon which he or she relies to
support his or her denial. Where a defendant desires to deny
only a part of an averment, he or she shall specify so much of
it as is true and material and shall deny only the remainder.
Where a defendant is without knowledge or information
sufficient to form a belief as to the truth of a material
averment made [to] the complaint, he or she shall so state,
and this shall have the effect of a denial.
Three ways to make a specific denial:
1. By specifically denying the averment and, whenever
possible, setting forth the substance of the matters relied
upon for such denial
2. Partial denial- He may admit a portion of the averments
in the complaint and specifically deny the rest and state
what is the truth of what is denied.
3. By an allegation of lack of knowledge or information
sufficient to form a belief as to the truth of the averment
in the opposing party’s.
Note: If such matters are plainly and necessarily within the
defendant’s knowledge, a claim of “ignorance of information
will not be considered a specific denial.”
Specific denial, purpose
The purpose of requiring the defendant to make a specific
denial is to make him disclose the matters alleged in the
complaint which he succinctly intends to disprove at the trial,
together with the matter which he relied upon to support the
denial. The parties are compelled to lay their cards on the
table.
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When a specific denial must be coupled with an oath
1. A denial of an actionable document
2. A denial of allegations of usury in a complaint to
recover usurious interest (deleted in the new Rules)
But, the requirement of an oath does not apply:
1. When the adverse party does not appear to be a
party to the instrument
2. When compliance with an order for an inspection of
an original instrument is refused.
An answer raising a specific denial based on the above
grounds is deemed to be under oath if it contains verification.
Effect of failure to specifically deny material
averments in the complaint
Section 11. Allegations not specifically denied deemed
admitted. - Material averments in a pleading asserting a
claim or claims, other than those as to the amount of
unliquidated damages, shall be deemed admitted when not
specifically denied.
Effect of failure to specifically deny material averments in the
complaint is that said averment are deemed admitted, except:
a. Amount of unliquidated damages
b. Immaterial averments
c. Conclusion of facts or law
An admission in a pleading cannot be controverted by the
party making such admission because the admission is
conclusive as to him. All proofs submitted by his contrary
thereto or inconsistent therewith should be ignored whether
an objection is interposed by a party or not. Said admission is
a judicial admission, having been made by a party in the
course of the proceedings in the same case, and does not
require proof. A party who desires to contradict his own
judicial admission may do so only by either of two ways: (a)
by showing that the admission was made through palpable
mistake; or (b) that no such admission was made.
Note: 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.
Warner Barnes & Co v Reyes
Denial based on lack of knowledge or information sufficient to
form a belief (general denial) on the content of a document
which is actually in the possession of the defendant is
tantamount to an admission.
Negative Pregnant
Negative pregnant is an admission in avoidance which does
not qualify as a specific denial. It is a form of denial which at
the same time involves an affirmative implication favorable to
the opposing party. It is tantamount to an admission.
It is a form of some negative expression carries with it an
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 words
of the allegation as so qualified or modified are literally denied,
the qualifying circumstances alone are denied while the fact
itself is admitted.
Allegations not specifically deemed admitted
General Rule: Allegations not specifically denied are deemed
admitted.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Exceptions:
1. Allegations as to amount of damages
2. Allegations which are immaterial to the cause of
action
3. Allegation in the complaint where no answer has
been filed by defendant
Affirmative Defenses
Section 12. Affirmative Defenses- (a) A defendant shall
raise his or her affirmative defenses in his or her answer,
which shall be limited to the reasons set forth under Section
5 (b), Rule 6, and the following grounds:
1. That the court has no jurisdiction over the person of
the defending party
2. That venue is improperly laid
3. That the plaintiff has no legal capacity to sue
4. That the pleading asserting the claim states no cause
of action
5. That a condition precedent for filing the claim has
not been complied with
(b) Failure to raise the affirmative defenses at the earliest
opportunity shall constitute a waiver thereof.
(c) The court shall motu proprio resolve the above affirmative
defenses within thirty (30) calendar days from the filing of the
answer.
(d) As to the other affirmative defenses under the first
paragraph of Section 5 (b) Rule 6, the court may conduct a
summary hearing within fifteen (15) calendar days from the
filing of the answer. Such affirmative defenses shall be
resolved by the court within thirty (30) calendar days from the
termination of the summary hearing.
(e) Affirmative defenses, if denied, shall not be the subject of
a motion for reconsideration or petition for certiorari,
prohibition, or mandamus, but may be among the matters to
be raised on appeal after a judgment on the merits.
What are these affirmative defenses under Section 5
(B) of Rule 6?
Affirmative defenses include:
a. Fraud
b. Statute of limitations
c. Release
d. Payment
e. Illegality
f. Statute of frauds
g. Estoppel
h. Former recovery
i. Discharge in bankruptcy
j. Any other matter by way of confession and avoidance
Note: If you raise the grounds enumerated in Section 12 (a)
as an affirmative defense, the court can decide on these right
away without conducting a hearing, motu proprio. There is no
need of a hearing anymore because the court is mandated to
resolve or decide on your affirmative defenses within 30 days
from the filing of your Answer without any hearing.
However, as to the Affirmative defenses under the first
paragraph of Section 5(b) Rule 6, the court may conduct a
summary hearing within 15 days from the filing of the Answer
and the same shall be resolved within 30 days from the
termination of the summary hearing.
Sec 5 (b) Rule Sec 5 (b) Sec 12 (a)
6 1st par Rule 6 2nd par Rule 8
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Affirmati 1. Fraud 1. Lack of 1. Lack of Striking Out of Pleading or Matter Contained Therein
ve 2. Statute jurisdicti jurisdicti Section 13. Striking out of pleading or matter
Defenses of on over on over contained therein. – Upon motion made by a party before
Limitatio the the responding to a pleading or, if no responsive pleading is
ns subject person permitted by these Rules, upon motion made by a party within
3. Release matter 2. Venue is twenty (20) calendar days after the service of the pleading
4. Payment 2. Litis improper upon him or her, or upon the court’s own initiative at any time,
5. Illegality pendenti ly laid the court may order any pleading to be stricken out or that
6. Statute a 3. Plaintiff any sham or false, redundant, immaterial, impertinent, or
of Frauds 3. Res has no scandalous matter be stricken out therefrom.
7. Estoppel judicata legal
8. Former capacity Striking out of pleading or matter contained therein must be
recovery to sue done upon motion before responding to a pleading or within
9. Discharg 4. Pleading 20 days from receipt of the pleading.
e in states no
bankrupt cause of Rule 9. EFFECT OF FAILURE TO PLEAD
cy action Section 1. Defenses and objections not pleaded. –
10. Other 5. Failure Defenses and objections not pleaded either in a motion to
matter to dismiss or in the answer are deemed waived. However, when
by way comply it appears from the pleadings or the evidence on record that
of with the court has no jurisdiction over the subject matter, that
confessio conditio there is another action pending between the same parties for
n or n the same cause, or that the action is barred by a prior
avoidanc precede judgment or by statute of limitations, the court shall dismiss
e. nt to the the claim.
filing of
the case. What is the effect if you failed to answer the
Hearing The Court Needs The court complaint?
may conduct clarification. must motu According to the Rule, these defenses and objections are
a summary proprio deemed waived.
hearing UP opinion: resolve these
within 15 Curiously, the affirmative Now what are these defenses?
days from the Amended defenses 1. Special affirmative defenses
filing of the Rules do not within 30 2. Defense of fraud
Answer. Such provide a calendar 3. Illegality of contract
affirmative time for days from the 4. The contract is unenforceable under the Statute of
defense shall which the filing of the Frauds
be resolved court must Answer
by the court act on the What are these objections that are not deemed
within 30 grounds in waived?
days from the the 2nd par of 1. Lack of jurisdiction over the subject matter
termination Sec 5 (b) 2. Litis pendentia
of the Rule 6 when 3. Res judicata
summary they are 4. Prescription of action
hearing. alleged as
affirmative Note: If these four grounds for objection are present in the
defenses in complaint filed, and it is noticed by the court, the court, by its
the answer. own volition, can dismiss the case outright. In other words,
Section 12, the court can motu proprio dismiss the case if it finds that it
Rule 8 merely does not have jurisdiction over the subject matter. Or, if the
provides for a court finds that there is litis pendentia, res judicata, or if the
period for the action has already prescribed.
affirmative
defense Note: Judge Q has included statute of limitations (Sec.1, Rule
listed in the 9 under the exceptions)
first par of
Sec 5(b) Rule Section 2. Compulsory counterclaim, or cross-claim,
6 and not for not set up barred. – A compulsory counterclaim, or a cross-
those listed claim, not set up shall be barred.
under the 2nd
par. Note: Set them up, otherwise they will be barred.

Effect of Denial Compulsory Counterclaim v Permissive Counterclaim

Affirmative defenses, if denied, shall not be the subject of a A compulsory counterclaim is one which, being cognizable by
motion for reconsideration or petition for certiorari, prohibition the regular courts of justice, arises out of or is connected with
or mandamus, but may be among the matters to be raised on the transaction or occurrence constituting the subject matter
appeal after judgment on the merit. (Section 12 (e), Rule 6 of the opposing party’s claim and does not require for its
of the 2019 Amendment) adjudication, the presence of third parties of whom the court
cannot acquire jurisdiction. Permissive counterclaim is a
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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
CIVPRO |
counterclaim which does not arise out of nor is it necessarily
connected with the subject matter of the opposing party’s
claim. It is not barred even if not set up in the action.
GR: A compulsory counterclaim or crosss-claim not set up in
the answer is deemed barred.
Exception: A counterclaim or cross-claim which either matured
or was acquired by a party after serving his pleading may,
with the permission of the court, be presented as a
counterclaim or cross-claim by supplemental pleading before
judgment.
Note: Counterclaim or cross-claims omitted through oversight,
inadvertence, or excusable neglect or when justice requires
may be set up by amendment before judgment. Leave of court
is necessary.
Section 3. Default; [d]eclaration of. – If the defending
party fails to answer within the time allowed therefor, the
court shall, upon motion of the claiming party with notice to
the defending party, and proof of such failure, declare the
defending party in default. Thereupon, the court shall proceed
to render judgment granting the claimant such relief as his or
her pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.
(a) Effect of order of default. – A party in default shall be
entitled to notice[s] of subsequent proceedings but shall not
to take part in the trial.
(b) Relief from order of default. – A party declared in default
may at any time after notice thereof and before judgment, file
a motion under oath to set aside the order of default upon
proper showing that his or her failure to answer was due to
fraud, accident, mistake or excusable negligence and that he
or she has a meritorious defense. In such case, the order of
default may be set aside on such terms and conditions as the
judge may impose in the interest of justice.
(c) Effect of partial default. – When a pleading asserting a
claim states a common cause of action against several
defending parties, some of whom answer and the others fail
to do so, the court shall try the case against all upon the
answers thus filed and render judgment upon the evidence
presented.
(d) Extent of relief to be awarded. – A judgment rendered
against a party in default shall [neither] exceed the amount or
be different in kind from that prayed for nor award
unliquidated damages.
(e) Where no defaults allowed. – If the defending party in
action for annulment or declaration of nullity of marriage or
for legal separation fails to answer, the court shall order the
Solicitor General or his or her deputized public prosecutor, to
investigate whether or not a collusion between the parties
exists, and if there is no collusion, to intervene for the State
in order to see to it that the evidence submitted is not
fabricated.
Note: Under the amendment, the defendant has 30 days to
answer from receipt of summons.
Judge Q: Default is quite common. That’s why in the flowchart
it is very important to take note of the period, number of days
which has been changed from working days to calendar days.
Counting the number of days is very crucial because if there
is failure to observe this period, it will prove to be prejudicial
or even fatal to your cause or defense. So once there is a
ground for you to be declared in default, it is prejudicial
because if the court sustains the position of the opposing
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
party, you are no longer allowed to participate in the
proceedings.
What are the requisites? Six requisites provided under the
rules.
Note: The court has no authority to motu proprio declare the
defendant in default.
What happens when you fail to answer within the
reglementary period of 30 days?
You may be declared in default.
Why “may be?”
Because declaration of default is not automatic. It requires a
motion to be filed by the plaintiff.
Default
Default is a procedural concept that occurs when the
defending party fails to file his answer within the reglementary
period. It does not occur from the failure of the defendant to
attend either the pre-trial or trial.
The rule on default clearly establishes the “failure to answer
within the time allowed therefor” as the ground for a
declaration of default. From the tenor of the Rules, default
does not technically occur from the failure of the defendant to
attend either the pre-trial or the trial. Hence, the failure of the
defendant to appear at the pre-trial, while a cause for the
court to order the plaintiff to present his evidence ex parte
and for the court to render judgment on the basis thereof, is
not the ground for declaration of default as the term is
contemplated under Section 3, Rule 9 of the Rules of Court.
A judgment by default is based on an order of default.
A default judgment is frowned upon because of the policy of
the law to hear every litigated case on the merits. But the
default judgment will not be vacated unless the defendant
satisfactorily explains the failure to file the answer, and show
that it has a meritorious defense.
Requisites before a defending party may be declared
in default
1. The court has validly acquired jurisdiction over the person
of the defending party, either by service of summons or
voluntary appearance.
2. The defending party must have failed to answer within
the period provided by the Rules of Court.
3. The claiming party must file a motion to declare the
defending party in default.
4. The claiming party must prove that the defending party
has failed to answer within the period provided by the
Rules of Court.
5. The defending party must be notified of the motion to
declare him in default.
a. In accordance with due process
6. There must be a hearing of the motion to declare the
defending party in default.
a. To give the opportunity to the defendant to
explain his side
No Motu Proprio declaration of default
Under Section 3, Rule 9 of the Rules of Court, the three
requirements to be complied with by the claiming party before
the defending party can be declared in default are: (1) that
the claiming party must file a motion praying that the court
declare the defending party in default; (2) the defending party
must be notified of the motion to declare it in default; (3) the
claiming party must prove that the defending party failed to
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answer the complaint within the period provided by the rule.
It is plain, therefore that the default of the defending party
cannot be declared motu proprio. Where there is no motion,
there can be no declaration of default.
However, a different rule is followed in environmental cases.
Should the defendant fail to answer within the period
provided, the court shall declare the defendant in default and,
upon motion of the plaintiff, shall receive evidence ex parte
and render judgment based thereon and the reliefs prayed
for.
When a declaration of default is proper
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.
Failure to serve the answer to the adverse party
The defendant who files his answer in time, but failed to serve
a copy thereof upon the adverse party, may validly be
declared in default. This failure is not, however, fatal because
the declaration of default may be set aside by a timely and
proper motion with the requisite affidavit of merit and
provided no loss of time occurs.
Effect of an order of default
A party in default shall be entitled to notice of subsequent
proceedings but not take part in the trial.
While the defendant can no longer take part in the trial, he is,
nevertheless entitled to notices of subsequent proceedings. It
is submitted that he may participate in the trial not as a party,
but as a witness.
A declaration of default is not tantamount to an admission of
the truth or the validity of the plaintiff’s claims. It should be
emphasized that the mere fact that the defendant was not
able to answer the complaint does not automatically mean
that the trial court will render a judgment in favor of the
plaintiff. The trial court must still determine whether the
plaintiff is entitled to the reliefs prayed for.
Note: When a motion to declare a defendant in default is filed,
the court will issue you an order of default. And after that, the
court may right away decide and render judgment by default.
Or if not, the court will require the plaintiff to present his
evidence ex parte, and thereafter, render judgment by
default.
Order of Default v Judgment of Default
The order of default is issued by the court once a motion to
declare defendant in default is filed, and the court is convinced
that the defendant is duly notified, but the defendant failed to
answer within the reglementary period. So, the court will issue
an Order of Default, and require the plaintiff to present
evidence ex parte. After that, the court will render judgment
by default.
Note: When the court issues an order of default, it is not
appealable because it is merely an interlocutory order. But the
judgment of default is appealable because it is already the
final judgment of the court. That’s the difference between an
order of default and judgment by default.
Effect of partial default
When a pleading asserts a claim against several defending
parties and some file and serve their answers but the others
do not, the courts shall try the case against all the defending
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
parties based on the answers filed and render judgment upon
the evidence presented where the claim states a common
cause of action against them.
Judge Q: The court should proceed with the case for as long
as there is a common cause of action against them
notwithstanding partial default.
What is the rule on partial default?
The rule is that if there is partial default, those defendants
who did not answer can be benefited by the defense raised by
the answering defendant/s.
This is because they are sued in solidum. This means that
there is a common cause of action against them. So, if the
answering defendant/s succeed or win the case, then the non-
answering defendant/s also win the case.
Action of the court after the declaration/order of
default
1. When a party is declared in default, the court may do
either of two things:
a. Proceed to render judgment granting the claimant
such relief as his pleading may warrant
b. Require the claimant to submit evidence ex parte.
2. The choice of which action to take is a matter of judicial
discretion. The court need not personally receive the
evidence if it decides to hear the evidence of the claiming
party. The reception of the evidence may be delegated to
the clerk of court.
Admission of answer filed out of time
It is within the sound discretion of the trial court to permit the
defendant to file his answer and be heard on the merits even
after the reglementary period for filing the answer expires.
The Rules of Court provides for discretion on the part of the
trial court not only to extend the time for filing an answer but
also to allow an answer to be filed after the reglementary
period.
Where the answer is filed beyond the reglementary period but
before the defendant is declared in default and there is no
showing that defendant intends to delay the case, the answer
should be admitted.
Extension of the time to answer
To reiterate, the rule is that the defendant’s answer should be
admitted where it is filed before a declaration of default and
no prejudice is caused to the plaintiff.
Relief from an order of default
1. Remedy after notice of order and before judgment:
a. Motion to set aside order of default, showing that
(a) the failure to answer was due to fraud,
accident, mistake, or excusable negligence, and
(b) the defendant has a meritorious defense-
there must be an affidavit of merit.
2. Remedy after judgment but before finality:
a. Motion for new trial under Rule 37
b. Appeal from the judgment as being contrary to the
evidence or the law
3. Remedy after judgment becomes final and executory:
a. Petition for relief from judgment under Rule 38
b. Action for nullity of judgment under Rule 47
4. If the order of default is valid, certiorari is not available.
If the default order was improvidently issued, that is, the
defendant was declared in default, without a motion, or
without having served with summons before the
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expiration of the reglementary period to answer,
Certiorari is available as a remedy.
Current judicial trend on defaults
The issuance of orders of default should be the exception
rather than the rule. Default orders shall be allowed only in
clear cases of obstinate refusal by the defendant to comply
with the orders of the trial court because suits should, as much
as possible, be decided on the merits and not on technicalities.
Thus, in practice, an answer under oath containing the
defenses of the defendant, may, under the rules on liberal
interpretation, be deemed as the equivalent of an affidavit of
merit.
Affidavit of merit
It is an affidavit executed by the defendant explaining not only
the reason why he was not able to answer within the
reglementary period, but it will also state that if only the court
will allow him to answer and lift or set aside the order of
default, he has a very good and meritorious defense.
Note: The reason for the affidavit of merit is so that the court
can apprise if it will allow the lifting of the order of default. If
the defendant cannot show that he has a good defense, why
will the court lift the order of default?
But if the reason why he was not able to answer is not because
of fraud, mistake, accident and excusable negligence, but
because he has not received the summons yet- the sheriff did
not serve the summons to him but to another person who has
the same name as the defendant, then the affidavit of merit
is not required.
If the court will deny the motion to lift on the ground
that he has not yet received the summons, when that
court has not acquired jurisdiction over his person,
what is the remedy of the defendant?
The defendant can immediately go to the higher court by way
of certiorari under Rule 65. Why? Because that constitutes
grave abuse of discretion amounting to lack or excess if
jurisdiction.
Effect of Lack of Affidavit of Merit
If your motion to lift order of default is not accompanied by
an affidavit of merit, your motion will not be acted upon by
the court, or it will be treated as a pro forma motion.
A motion that fails to comply with the requirements under the
Rules will be treated as a pro forma motion. And a pro forma
motion does not toll the running of the reglementary period
to avail of that particular remedy.
Extent of relief
A judgment rendered against a party in default may not
exceed the amount or be different from that prayed for nor
include unliquidated damages which are not awarded. In fact,
there can be no automatic grant of relief as the court has to
weigh the evidence. Furthermore, there can be no award of
unliquidated damages.
The Rules provide that the court can only award the relief
stated in the complaint and proven by the plaintiff. The court
can only award liquidated damages (those that are already
determinable at the time of the filing of the case) and not
those unliquidated damages (damages that are subject to
proof during the trial of the case. e.g. moral damages).
Actions where default are not allowed
No judgment by default is allowed in actions for:
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
a. Annulment of marriage
b. Declaration of nullity of marriage
c. Legal separation
In the action above, the court shall order the prosecuting
attorney to investigate whether or not a collusion between the
parties exists, and if there is no collusion, to intervene for the
State in order to see to it that the evidence submitted is not
fabricated.
Judge Q: No defaults are allowed. Defendant can still file his
or her answer.
Other instances where no default is allowed:
1. Special civil actions for certiorari, prohibition and
mandamus
2. Summary procedure
3. Small claims
4. Environmental cases
Judgment by default for refusal to comply with the
modes of discovery
The rule is that a default order and, consequently, a default
judgment is triggered by the failure of the defending party to
file the required answer. By way of exception, a judgment by
default may be rendered in the following cases despite an
answer having been filed:
a. If a disobedient party refuses to obey an order
requiring him to comply with the various modes of
discovery
b. If a party or officer or managing agent of a party
willfully fails to appear before the officer who is to
take his deposition, or a party fails to serve answers
to interrogatories.
Motion to declare default, where prohibited
1. Rules of Procedure for Small Claims Cases
2. Rules on Writ of Amparo (In case the respondent fails
to file a return, the court, justice or judge shall
proceed to hear the petition ex parte.)
3. Rules on Writ of Habeas Data (same with writ of
amparo)
4. Revised Rules on Summary Procedure
Rule 10. AMENDED AND SUPPLEMENTAL PLEADINGS
Amendments and supplemental pleadings refer to changes on
the original pleading filed.
How is amendment made?
Amendment consists of the correction of some allegations in
the pleading that you filed.
How pleadings are amended
Sec. 1, Rule 10. Amendments in General. Pleadings may
be amended in the following manner:
(a) By adding or striking out an allegation;
(b) By adding or striking out the name of any party;
(c) By correcting a mistake in the name of a party;
(d) By correcting a mistaken or inadequate allegation;
(e) By correcting a mistaken or inadequate description in any
other respect.
Reason for allowing amendment
Amendments are allowed so that the actual merits of the
controversy may speedily be determined without regard to
technicalities, and in the most expeditious and inexpensive
manner.
How to file amended pleadings
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When any pleading is amended, a new copy of the entire
pleading, incorporating the amendments, which shall be
indicated by appropriate marks, shall be filed.
Types of Amendments
1. Amendment as a matter of right
2. Amendment as a matter of judicial discretion
Amendment as a matter of right
Section 2, Rule 10. 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 (10) calendar days after it is
served.
A party has the right to amend his pleading as a matter of
right, so long as the pleading is amended only once and before
a responsive pleading is served.
In case of a reply to which there is no responsive pleading, it
may be amended as a matter of right at any time within 10
days after it is served. Thus, before an answer is served on
the plaintiff, the latter may amend his complaint as a matter
of right.
The defendant may also amend his answer as a matter of
right, before a reply is served upon him. In either case, there
is no need to file a motion for leave to amend the pleading.
After the service of a responsive pleading, a party can amend
his pleading only upon prior leave of court.
Amendment before trial courts
Sec. 2, Rule 10 refers to an amendment made before the trial
court, not to amendments before the CA. The CA is vested
with discretion to admit or deny amendment petitions filed
before it.
The right to amend a pleading as a matter of right, may,
according to the Rules, be exercised only once. Hence, even
if no responsive pleading has yet been served, if the
amendment is subsequent to a previous amendment made as
a matter of right, the subsequent amendment must be with
leave of court.
Matter of judicial policy
As a matter of judicial policy, courts are impelled to treat
motions for leave to file amended pleadings with liberality.
This is especially true when a motion for leave is filed during
the early stages of proceedings or, at least, before trial.
Jurisprudence states that bona fide amendments to pleadings
should be allowed in the interest of justice so that every case
may, so far as possible, be determined on its real facts and
the multiplicity of suits thus may be prevented. Hence, as long
as it does not appear that the motion for leave was made with
bad faith or with intent to delay the proceedings, courts are
justified to grant leave and allow the filing of an amended
pleading. Once a court grants leave to file an amended
pleading, the same becomes binding and will not be disturbed
on appeal unless it appears that the court had abused its
discretion.
Applicability of mandamus
The court would be in error if it refuses to admit an amended
pleading when its exercise is a matter of right. This error is
correctible my mandamus because the trial court’s duty to
admit an amended complaint made as a matter of right is
purely ministerial.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Amendment made during the pendency of a motion to
dismiss
If a motion to dismiss is filed, an amendment to the complaint
would still be a matter of right during the pendency of the
motion to dismiss. Such a motion is not a responsive pleadings
and its filing does not preclude the exercise of the plaintiff’s
right to amend his complaint.
As to whether or not the plaintiff could so amend his complaint
as a matter of right, the Supreme Court reiterated the rule
that a party may amend his pleading once as a matter of right
at any time before a responsive pleading is served. The court
explained that a motion to dismiss is not a responsive pleading
and so the duty of the trial court is to admit the amended
complaint. Such duty is a ministerial one because the
amendment, under the circumstances, is a matter of right.
The amendment is a matter of right and, hence, cannot be
refused by the court.
Note: Once there is already an answer filed by the defendant,
the plaintiff can no longer amend his complaint without the
permission of the court. That is if his amendment is a
substantial amendment. Substantial amendment cannot be
done anymore by the plaintiff once the defendant has already
filed his answer. He can do that, but it must be with leave of
court.
So, he must file a motion for leave of court to amend his
complaint, and he will attach to his motion the proposed
amended complaint.
Now, take note that amendment is a matter of right if
there is yet no responsive pleading. But what if instead
of filing an answer, the defendant filed a motion to
dismiss? Is an MTD a responsive pleading?
No.
So, can the plaintiff amend his complaint as a matter
of right?
Yes, the plaintiff can still amend his complaint as a matter of
right because a MTD is not considered a responsive pleading.
Now, when there is already an answer, you must ask
permission of the court, it’s no longer a matter of right but a
matter of judicial discretion EXCEPT if your amendment is a
mere formal amendment.
Amendments by leave of court
Section 3. Amendments by leave of court. – Except as
provided in the next preceding [S]ection, substantial
amendments may be made only upon leave of court. But such
leave shall be refused if it appears to the court that the motion
was made with intent to delay [or] confer jurisdiction on the
court, or the pleading stated no cause of action from the
beginning which could be amended. Orders of the court upon
the matters provided in this [S]ection shall be made upon
motion filed in court, and after notice to the adverse party,
and an opportunity to be heard.
Leave of court is required for an amendment made after
service of a responsive pleading. This rule assumes more force
and effect especially when the amendment is substantial since
substantial amendments, after the service of a responsive
pleading, may be made only upon leave of court. The plaintiff,
for example, cannot amend his complaint by changing his
cause of action or adding a new one without leave of court.
Even if the amendment be with leave of court, it still stands
to be eventually rejected where such amendment appears to
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the court to have been made with the intent to delay the
proceedings.
Substantial alteration in the cause of action or defense is not
a bar to the amendment of the original complaint so long as
the amendment is not meant for delay.
GR: Substantial amendments may only be made upon leave
of court.
Requisites:
1. Motion for leave of court, accompanied by the amended
pleading sought to be admitted
2. Notice is given to the adverse party
3. Parties are given the opportunity to be heard.
No cure to no cause of action
A complaint which fails to state a cause of action may be cured
by evidence presented during trial. However, Sec. 5 is
applicable only if a cause of action in fact exists at the time
the complaint is filed, but the complaint is defective for failure
to allege the essential facts.
A complaint whose cause of action has not yet accrued cannot
be cured or remedied by an amendment or supplemental
pleading alleging the existence or accrual of a cause of action
while the case is pending.
Also, if a complaint failed to aver the fact that certain
conditions precedent were undertaken and complied with, the
failure to so allege the same may be corrected by evidence of
compliance with said conditions without objection from the
other party.
Formal Amendment
Section 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.
Note: Formal amendment refers to the amendment of the
pleading in order to correct some clerical or typographical
errors, or some statements that are harmless and
innocuous- it will not affect the right of the defendant.
In fact, formal amendment can be made through the court’s
own volition, even without the plaintiff’s volition. If the court
finds that there are clerical or typographical error, it can order
for the correction of these without leave of court. But when
there is a substantial amendment, then leave of court is
required.
When amendment must be denied
1. When amendment is to delay the action
2. When amendment is for the purposes of making the
complaint confer jurisdiction upon the court
a. IOW, it is clear that in the original complaint
filed, the court did not have jurisdiction over the
subject matter of the case
3. When the pleading states no cause of action from the
beginning, and the amendment is for the purpose of
curing it.
Exception to the rule that defenses not raised are
deemed waived
Section 5. No amendment [necessary] 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
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
if they had been raised in the pleadings. No amendment of
such pleadings deemed amended is necessary to cause them
to conform to the evidence.
Note: In Section 5 of the old Rules, prior to the present
amendment, it was stated there that the court is not supposed
to entertain issues not included in the respective pleadings of
the parties. But, if during the trial, one party raises an issue
which ought not to be included because it was not in the pre-
trial or it was not among the issues raised in the pleadings of
both parties, but the other party did not object to it and
allowed the plaintiff to prove that kind of issue, under the old
Rules, the court will allow a party to amend his complaint.
But now, under the 2019 amendment, there is no need
anymore to amend. The court can already consider it as one
of the issues in the case even if it was not raised in the
pleadings of the parties, and it was not included in the issues
in the pre-trial conference.
Supplemental pleadings
Section 6. Supplemental pleadings. – Upon motion of a
party[,] the court may, upon reasonable notice and upon such
terms as are just, permit him or her 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) calendar days from notice of the order
admitting the supplemental pleading.
What is a supplemental pleading?
A supplemental pleading is one which sets forth transactions,
occurrences, or events which have happened since the date
of the pleadings sought to be supplemented. It must be done
upon motion of the party, with reasonable notice to the other
party. Once approved by the court, the adverse party may
plead thereto within 10 days from notice of order admitting
the supplemental pleadings.
The filing of supplement pleadings always requires leave of
court. The court may allow the pleading only upon such terms
as are just. This leave is sought by filing of a motion with
notice to all parties. Because amendment here is no longer a
matter of right, but a matter of judicial discretion.
Amended pleading v supplemental pleading
Amended Pleading Supplemental Pleading
Refers to facts existing at Refers to facts arising after
the time of the the filing of the original
commencement of the pleading
action (only purpose is to
make a correction)
Results in the withdrawal of Is merely in addition to, but
the original pleading does not result in the
withdrawal of the original
pleading
Can be made as a matter of Always with the leave of
right court
Must be appropriately No such requirement of
marked making an appropriate mark
How do you make an amendment?
The new facts or allegations that you inserted in your original
pleading must be identified by underlining those facts- the
words or sentences that are new in your pleading- should be
properly identified by underlining or italicizing them, so
that the other party and the court itself will immediately know
that this is the portion that was introduced as an amendment.
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Cause of action in supplemental pleading
When the cause of action in the supplemental complaint is
different from the cause of action mentioned in the original
complaint, the court should not admit the supplemental
complaint.
As its very name denotes, a supplemental pleading only serves
to bolster or add something to the primary pleading. A
supplemental pleading exists side by side with the original. It
does not replace that which it supplements. Moreover, a
supplemental pleading assumes that the original pleading is
to stand and that the issues joined with the original pleading
remain as issues to be tried in the action. It is but a
continuation of the complaint.
Answer to a supplemental pleading; not mandatory
A supplemental complaint may be answered within 10 days
from notice of the order admitting the same, unless a different
period is fixed by court. The answer to the complaint shall
serve as the answer to the supplemental complaint if no new
or supplemental answer is filed.
Thus, the filing of an answer to the supplemental pleading is
not mandatory because of the use of the word “may.”
How Amended Pleadings are Filed
Section 7. Filing of amended pleadings . – When any
pleading is amended, a new copy of the entire pleading,
incorporating the amendments, which shall be indicated by
appropriate marks, shall be filed.
Effect of amended pleading
Section 8. Effect of amended pleadings. – An amended
pleading supersedes the pleading that it amends. However,
admissions in superseded pleadings may be offered in
evidence against the pleader, and claims or defenses alleged
therein not incorporated in the amended pleading shall be
deemed waived.
What is the effect of an amended pleading?
Admission in superseded pleadings may be received in
evidence against the pleader; and claims and defenses alleged
therein not incorporated in the amended pleading shall be
deemed waived.
Rationale
The reason why a superseded pleading may still be received
as evidence against the pleader is that such is the nature of a
judicial admission. Despite its being superseded and
withdrawn, the admissions therein are still considered
“extrajudicial admissions”, and may be proved by the party
relying thereon by formal offer in evidence of such original
pleading.
Effect of the amended pleading on the original
pleading
When a pleading is amended, the original pleading is deemed
to have been abandoned. The original pleading is superseded
or disappears from the records. The defenses in the original
pleadings not reproduced in the amended pleadings are
waived.
Effect of the amendment on admission made in the
original pleading
Admissions in superseded pleadings may be received in
evidence against the pleader. The admission made in the
original pleadings ceased to be judicial admissions. They are
now considered as extrajudicial admissions. Thus, to use them
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
against the party, they need to be formally offered in
evidence. These still need to be proved, supported by
evidence.
Summons after complaint is amended; when required
and when not required
Although the original complaint is deemed superseded by the
pleading that amends it, it does not ipso facto follow the
service of new summons is required. Where the defendants
have already appeared before the trial court by virtue of a
summons in the original complaint, the amended complaint
may be served upon them without need of another summons,
even if new causes of action are alleged. A court’s jurisdiction,
once it is acquired, continues until the case is terminated.
Conversely, when the defendants have not yet appeared in
court, new summons for the amended complaint must be
served on them.
However, where a new defendant is impleaded, summons
must be served upon him so that the court may acquire
jurisdiction over his person because, logically, the new
defendant cannot be deemed to have already appeared by
virtue of summons under the original complaint in which he
was not yet a party.
Rule 11. WHEN TO FILE RESPONSIVE PLEADING
A responsive pleading is a pleading in answer to the pleading
containing the claim of the other party. These are examples
of responsive pleadings:
1. Answer
2. Answer to Counterclaim
3. Answer to Cross-claim
4. Answer to third party complaints
Note: A Motion to Dismiss is not a responsive pleading. Thus,
the plaintiff can still amend his complaint as a matter of right
because there is no responsive pleading filed yet.
Answer to the Complaint
Section 1. Answer to the complaint. – The defendant shall
file his or her answer to the complaint within thirty (30)
calendar days after service of summons, unless a different
period is fixed by the court.
➢ When to file: 30 days counted from the time he
received the summons and the complaint
➢ Rule: Exclude the first day and include the last
➢ Effect of interruption: If there is an interruption (such
as filing of MTD or Bill of Particulars), it will interrupt
the running of the reglementary period to answer. It
tolls the running of the period. If the MTD or Bill of
Particulars is granted, the period to answer will
continue.
Note: The Rules allow for a motion to extend time to file an
answer, as long as it is for meritorious reasons. Such may only
be availed of by the defendant once and may not exceed 30
calendar days.
Judge Q: This is an amendment to the old rules which required
only 15 days. What is the rationale? If you recall, what is
required is not only the ultimate facts but also evidentiary
facts.
Period to Answer for Defendant Corporation
Section 2. Answer of a defendant foreign private
juridical entity. – Where the defendant is a foreign private
juridical entity and service of summons is made on the
government official designated by law to receive the same,
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the answer shall be filed within sixty (60) calendar days after
receipt of summons by such entity.
➢ When to file: Within 60 calendar days if the
defendant is a foreign corporation and the summons
were served through the govt agency which has
control over the nature of the business of the
corporation, the period to answer is 60 days.
➢ If the corporation is a bank, the summons may be
served through the governor of the Central Bank. If
the corporation is an insurance company, the
summons may be coursed through the insurance
commissioner. Depending on the nature of business,
the court may serve the summons through the
appropriate government agency.
Answer to Amended Complaint
Section 3. Answer to amended complaint. – [When] the
plaintiff files an amended complaint as a matter of right, the
defendant shall answer the same within thirty (30) calendar
days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall
answer the amended complaint within fifteen (15) calendar
days from notice of the order admitting the same. An answer
earlier filed may serve as the answer to the amended
complaint if no new answer is filed.
This Rule shall apply to the answer to an amended
counterclaim, amended cross-claim, amended third (fourth,
etc.)-party complaint, and amended complaint-in-
intervention.
It depends on the kind of amendment:
➢ If filed as a matter of right- 30 days from the receipt of
the copy of the amended complaint.
➢ If filed not a matter of right- 15 days. The period is
shorter. In this kind of amendment, leave of court is
required. The plaintiff must file a motion for leave of
court, attaching his proposed amendment to the motion,
subject to the approval of the court. Here, the defendant
has already enough time to read and study the proposed
amended complaint. By the time the court will grant the
motion for leave of court, the defendant has had enough
time to read and prepare. The 15-day period will start to
run from receipt of the order of the court granting the
motion for leave of court to amend the complaint. When
you receive the proposed amended complaint which is
attached to the motion for leave of court, do not answer
right away! For all you know, the court may not grant the
motion for leave to amend the complaint. Wait for the
order of the court granting the motion.
Answer to Counterclaim or Cross-Claim
Section 4. Answer to counterclaim or cross-claim. – A
counterclaim or cross-claim must be answered within twenty
(20) calendar days from service.
➢ When to file: 20 days from receipt of the
counterclaim or cross-claim
Answer to Third-Party Complaint
Section 5. Answer to third (fourth, etc.)-party
complaint. – The time to answer a third (fourth, etc)-party
complaint shall be governed by the same rule as the answer
to the complaint.
➢ When to file: 30 days, similar to the answer to the
original complaint because a third-party complaint is
in the nature of an original action. Like an original
action of a defendant against a third-party
defendant.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
➢ A third-party complaint requires leave of court. So a
defendant, before he can file such complaint, must
file a motion for leave of court to file a third-party
complaint. The third-party defendant will not also file
his Answer right away even if he already has a copy
of the complaint. He must wait for the court to
approve the motion for leave to file a third-party
complaint. Once the court grants it, the defendant
has 30 days to file his Answer to the third-party
complaint.
Reply
Section 6. Reply. – A reply, if allowed under Section 10, Rule
6 hereof, may be filed within fifteen (15) calendar days from
service of the pleading responded to.
➢ When to file: Only 15 days. The filing of a reply is not
mandatory except if there is an actionable document. If
there are new matters raised in the answer of the
defendant, the plaintiff is already deemed to have denied
or controverted those matters. But if there is an
actionable document, he must file a reply and he has only
15 days to file a reply to the defendant’s answer.
Answer to Supplemental Complaint
Section 7. Answer to supplemental complaint. – A
supplemental complaint may be answered within twenty (20)
calendar days from notice of the order admitting the same,
unless a different period is fixed by the court. The answer to
the complaint shall serve as the answer to the supplemental
complaint if no new or supplemental answer is filed.
➢ A supplemental complaint also requires leave of court.
When the plaintiff wants to introduce additional matters
to his complaint, he must secure the approval of the
court. When the court grants the motion for leave to file
a supplemental complaint, that is the time when the 20-
day period starts to run from the receipt of the order of
the court allowing the filing of the supplemental
complaint.
Counterclaim & Cross-Claim Arising After Answer
Section 8. Existing counterclaim or cross-claim. – A
compulsory counterclaim or a cross-claim that a defending
party has at the time he or she files his or her answer shall be
contained therein.
Section 9. Counterclaim or cross-claim arising after
answer. – A counterclaim or a cross-claim which either
matured or was acquired by a party after serving his or her
pleading may, with the permission of the court, be presented
as a counterclaim or a cross-claim by supplemental pleading
before judgment.
➢ The same may be allowed by the court through a
supplemental pleading. This presupposes that your
counterclaim occurs only after you have already filed your
answer. There are events that transpired after you have
filed your answer that necessitates the conclusion of the
said matter as a counterclaim in your answer. You can
introduce it by way of a supplemental pleading.
➢ The same is true with a cross-claim by a defendant
against his co-defendant if the matter happens after the
filing of the original answer. It can be introduced through
a supplemental pleading. As you already know, as a
supplemental pleading, it can only be introduced with
prior leave of court.
➢ GR: A compulsory counterclaim, or a cross-claim, not set
up shall be barred.
o Exceptions: Omitted Counterclaim or Cross-
claim or Counterclaim or Cross-Claim after Answer
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crossclaim
Omitted Counterclaim or Cross-claim (amendment but amended xxx
with leave of court) Answer to Within 20 Service
Section 10. Omitted counterclaim or cross-claim. – counterclaim or calendar days
When a pleader fails to set up a counterclaim or a cross-claim cross-claim
through oversight, inadvertence, or excusable neglect, or Answer to third Same as answer Same as answer
when justice requires, he or she may, by leave of court, set party complaint to the complaint to the complaint
up the counterclaim or cross-claim by amendment before Reply Within 15 Service of the
judgment. calendar days pleading
➢ If the defendant can show to the court some justifiable responded to
reason (or even by oversight or negligence) why he Answer to Within 20 Notice of the
failed to include that in his answer, he can file a motion supplemental calendar days order admitting
for leave of court. complaint (unless a the same
different period)
Extension of Time to Plead
Section 11. Extension of time to file an answer. – A Rule 12. BILL OF PARTICULARS
defendant may, for meritorious reasons, be granted an Section 1. When applied for; purpose. – Before
additional period of not more than thirty (30) calendar days to responding to a pleading, a party may move for a definite
file an answer. A defendant is only allowed to file one (1) statement or for a bill of particulars of any matter, which is
motion for extension of time to file an answer. not averred with sufficient definiteness or particularity, to
enable him or her properly to prepare his or her responsive
A motion for extension to file any pleading, other than an pleading. If the pleading is a reply, the motion must be filed
answer, is prohibited and considered a mere scrap of paper. within ten (10) calendar days from service thereof. Such
The court, however, may allow any other pleading to be filed motion shall point out the defects complained of, the
after the time fixed by these Rules. paragraphs wherein they are contained, and the details
desired.
Judge Q: Correlate this also the rules allowing or providing for
instances where a party can be considered in default. You also Note: The period to file a motion refers to the period for filing
have to consider the policy of the Supreme Court or the the responsive pleading in Rule 11. Thus, where the motion
current judicial trends in default. for bill of particulars is directed to a complaint, the motion
should be filed within 15 days after service of summons. If the
➢ You can ask for one extension of 30 days. You cannot motion is directed to a counterclaim, then the same must be
ask for more. No extension to file other pleading is filed within 10 days from service of the counterclaim which is
allowed, only time to file Answer. the period provided for by Sec. 4, Rule 11 to answer a
➢ Nota bene: The court, however, may allow any other counterclaim.
pleadings to be filed after the time fixed by these Rules.
What is a bill of particulars?
Summary of Periods of Filings of Pleadings A bill of particulars is a more definite statement of any manner
Responsive Period Reckoning which is not averred with sufficient definiteness or particularity
Pleadings Point in a pleading so as to enable the opposing party to prepare
Answer to the Within 30 Service of his responsive pleading.
Complaint calendar days summons
(unless a Note: It is the remedy of answering party in case the pleading
different period is of the other party is vague or not clearly worded. Vague or
fixed) ambiguous means susceptible to two or more interpretations.
Answer of a Within 60 Receipt of
defendant foreign calendar days summons by such If you are the defendant and you found out that some
private juridical entity paragraphs in the complaint are very vague, do you have to
entity whose answer right away? No. You are not compelled to answer a
summons was complaint that contains ambiguous statements or allegations.
served on the
government IOW, the function of a bill of particulars is to clarify the
official allegations in the pleading so an adverse party may be
designated by informed with certainty of the exact character of a cause of
law action or a defense. Without the clarifications sought by the
Answer to Within 30 Service of a copy motion, the movant may be deprived of the opportunity to
amended calendar days of the amended submit an intelligent responsive pleading.
complaint as a complaint
matter of right What is your remedy?
Answer to Within 15 Notice of the Your remedy is to file a Motion for Bill of Particulars. It is a
amended calendar days order admitting form of request by the defendant but addressed to the court
complaint NOT as the amended asking the court to order the plaintiff to particularize or clarify
a matter of right complaint some of the ambiguous statements in his complaint. The
Answer to an Same as answer Same as answer purpose is to allow the defendant to prepare intelligently his
amended to an amended to an amended answer to the complaint. `
counterclaim complaint complaint
amended, Requirements for the motion

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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The motion shall point out the defects complained of, the
paragraphs wherein they are contained, and the details
desired.
Action by the Court
Section 2. Action by the court. – Upon the filing of the
motion, the clerk of court must immediately bring it to the
attention of the court, which may either deny or grant it
outright, or allow the parties the opportunity to be heard.
The court may:
➢ Deny the motion outright;
➢ Grant the motion outright;
➢ Hold a hearing on the motion.
Section 3. Compliance with order. – If the motion is
granted, either in whole or in part, the compliance therewith
must be effected within ten (10) calendar 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.
Note: If the judge feels that the filing of the bill of particulars
is a dilatory tactic, the judge has the discretion to outrightly
deny if the court finds that there is no ambiguity. If the court
agrees with the defendant that there is ambiguity, it may allow
the parties to be heard and grant the motion for bill of
particular. The compliance must be effected within 10 days
from notice of the order unless a different period is fixed.
The Bill of Particulars may be filed in two ways:
1. Separate pleading
2. Amended pleading
Effect of Non-Compliance
Section 4. Effect of non-compliance. – If the order is not
obeyed, or in case of insufficient compliance therewith, the
court may order the striking out of the pleading or the portions
thereof to which the order was directed [,] or make such other
order as it deems just.
Effect of Filing of a Bill of Particulars
Section 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 or her motion, the
moving party may file his or her responsive pleading within
the period to which he or she was entitled at the time of filing
his or her motion, which shall not be less than five (5) calendar
days in any event.
Note: The filing of a bill of particulars stops or interrupts the
running of the period to file an answer. But, at least 5 days to
answer. (E.g. if you filed a Motion for Bill of Particulars on the
28th day, which means you have 2 days left), the rules say you
should have at least 5 days to answer.
Bill of Particulars Becomes Part of the Pleading
Section 6. Bill a part of pleading. – A bill of particulars
becomes part of the pleading for which it is intended.
The Bill of Particulars becomes part of the complaint.
Effect on the period to file a responsive pleading
A motion for bill of particulars is not a pleading; hence, not a
responsive pleading. Whether or not his motion is granted, the
movant may file his responsive pleading. When he files a
motion for BOP, the period to file the responsive pleading is
stayed or interrupted. After service of the bill of particulars
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
upon him or after notice of the denial of his motion, he may
file his responsive pleading within the period to which he is
entitled to at the time the motion for bill of particulars is filed.
If he has still eleven (11) days to file his pleading at the time
the motion for BOP is filed, then he has the same number of
days to file his responsive pleading from the service upon him
of the BOP. If the motion is denied, then he has the same
number of days within which to file his pleading counted from
his receipt of the notice of the order denying his motion. If the
movant has less than five (5) days to file his responsive
pleading after service of the bill of particulars or after notice
of the denial of his motion, he nevertheless has five (5) days
within which to file his responsive pleading
Rule 13. FILING AND SERVICE OF PLEADINGS,
JUDGMENT, AND OTHER PAPERS
Section 1. Coverage. – This Rule shall govern the filing of
all pleadings, motions, and other court submissions, as well as
the service thereof, except those for which a different mode
of service is prescribed.
Judge Q: The term filing and service is a technical term
because there is a specific definition under these Rules.
Section 2. Filing and [s]ervice, defined. – Filing is the act
of submitting the pleading or other paper to the court.
Service is the act of providing a party with a copy of the
pleading or any other court submission. If a party has
appeared by counsel, service upon such party shall be made
upon his or her counsel, unless service upon the party and the
party’s counsel is ordered by the court. Where one counsel
appears for several parties, such counsel shall only be entitled
to one copy of any paper served upon him by the opposite
side.
Where several counsels appear for one party, such party shall
be entitled to only one copy of any pleading or paper to be
served upon the lead counsel if one is designated, or upon
any one of them if there is no designation of a lead counsel. (
Filing
Filing is the act of submitting the pleading or other paper to
the court.
IOW, delivery of the pleading into the hands of the clerk of
court.
Service
Service is the act of providing a party with a copy of the
pleading or any other court submission.
IOW, refers to the act of furnishing a copy of the pleading to
the other party.
Judge Q: It is important that prior to filing, he must make a
service to the other party. Otherwise, he would not be able to
file the pleading in court. That is why it is a rule always in
court, when the clerk will receive the pleading filed by a
particular party, he must examine first if he has made the
proper service. Otherwise, the clerk of court will not consider
the pleading filed. So that is a very important point that must
be raised when talking about filing and service.
Upon whom service shall be made
1. If a party has not appeared by counsel, then service must
be made upon him.
2. If a party has appeared by counsel, service upon such
party shall be made upon his or her counsel, unless
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service upon the party and the party’s counsel is ordered
by the court. Where one counsel appears for several
parties, such counsel shall only be entitled to one copy of
any paper served by the opposite side.
3. Where several counsels appear for one party, such party
shall be entitled to only one copy of any pleading or paper
to be served upon the lead counsel if one is designated,
or upon any one of them if there is no designation of a
lead counsel.
Notice to counsel
Notice to counsel is effective notice to client, while notice to
the client and not his counsel is not notice in law, unless, for
instance, when the court or tribunal orders service upon the
party or when the technical defect in the manner of notice is
waived.
Note:
Subject to compelling reasons involving substantial justice,
service of a petition upon a party, when that party is
represented by counsel of record, is a patent nullity and is not
binding upon the party wrongfully served. Reason: the parties,
generally, have no formal education or knowledge of the rules
of procedure; they, may also be unaware of the rights and
duties of a litigant relative to the receipt of a decision.
Service upon counsel representing several parties
Where one counsel appears for several parties, service shall
be made upon said counsel but he shall be entitled only to 1
copy of any paper served upon by the opposite side. Hence,
if he represents 3 parties in the same case, he cannot insist of
being served with 3 copies of the paper served upon him.
Manner of filing
Section 3. Manner of filing. – The filing of pleadings and
other court submissions shall be made by:
(a) Submitting personally the original thereof, plainly indicated
as such, to the court;
(b) Sending them by registered mail;
(c) Sending them by accredited courier; or
(d) Transmitting them by electronic mail or other electronic
means as may be authorized by the [c]ourt in places where
the court is electronically equipped.
In the first case, the clerk of court shall endorse on the
pleading the date and hour of filing. In the second and third
cases, the date of the mailing of motions, pleadings, [and
other court submissions, and] 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. The envelope shall be attached
to the record of the case. In the fourth case, the date of
electronic transmission shall be considered as the date of
filing.
1. Personally
2. Registered mail
3. By accredited courier
4. By electronic mail or other electric means
Personally
The most common mode of filing is by filing it personally.
How do you do it?
You deliver the complaint to the court by handing it over the
clerk of court. The clerk of court will put a stamp on the date
it was received and you will pay the filing fee or the docket
fee to the clerk of court.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
The clerk of court shall indicate or endorse on the pleading or
paper filed, the date and hour of filing.
Does it mean that the party himself should file?
No, it can be that the representative will file, usually their
clerks or managers.
Registered Mail
The date of the mailing of motions, pleadings, and other
courts submissions, and payments or deposits, as shown by
the post office stamp on the envelope or registry receipt, shall
be considered as the date of filing, payment or deposit in
court. The rule also requires that the envelope be attached to
the record of the case.
For example, if you are residing in Cebu and you would like to
file a case for real action in Davao because the property is
located therein, you do not have to go to Davao. You can have
the complaint prepared here in Cebu City and mail it to the
Regional Trial Court of Davao addressed to the Clerk of Court.
The preferred mode of mailing is by registered mail.
Remember that your complaint is not considered filed without
payment of the filing fee. Your complaint must be
accompanied by a postal money order. Your complaint mailed
to Davao must already include your payment of the docket fee
and other lawful fees.
By Accredited Courier
In places where there is no facility for registered mailing, you
may do it by an accredited private courier like LBC.
The date of the mailing of motions, pleadings, and other
courts submissions, and payments or deposits, as shown by
the post office stamp on the envelope or registry receipt, shall
be considered as the date of filing, payment or deposit in
court. The rule also requires that the envelope be attached to
the record of the case.
Judge Q: As far as I know, the Supreme Court has not yet
designated an accredited courier. I have not yet received a
circular regarding this.
By electronic mail or other electronic means
It may also be filed by electronic mail or other electronic
means if allowed by the parties.
The date of electronic transmission shall be considered as the
date of filing.
Note: The Republic of the Philippines, its agencies and
instrumentalities are exempt from paying the legal fees
provided in the rule. Local governments and government-
owned or controlled corporations with or without independent
charters are not exempt from paying such fees.
However, all court actions, criminal or civil, instituted at the
instance of the provincial, city or municipal treasurer or
assessor under Section 280 of the Local Government Code of
1991 shall be exempt from the payment of court and sheriff’s
fees.
Judge Q: Only available if court is equipped to receive email.
How to prove filing
If personally filed
1. The filing of a pleading or paper shall be proved by its
existence in the record.
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2. If it is not in the record, but is claimed to have been filed
personally, the filing shall be proved y the written or
stamped acknowledgement of its filing by the clerk of
court on a copy of the same.
If registered mail
The proof of filing is by the registry receipt and 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 10 days if not delivered.
Papers required to be filed and served
Section 4. Papers required to be filed and served. –
Every judgment, resolution, order, pleading subsequent to the
complaint, written motion, notice, appearance, demand, offer
of judgment or similar papers shall be filed with the court, and
served upon the parties affected.
1. Judgments
2. Resolutions
3. Orders
4. Pleadings subsequent to the complaint
5. Written motions
6. Notices
7. Appearances
8. Demands
9. Offers of judgment
10. Similar papers
Service of Pleadings
Modes of service
Section 5. Modes of [s]ervice. – Pleadings, motions,
notices, orders, judgments, and other court submissions shall
be served personally or by registered mail, accredited courier,
electronic mail, facsimile transmission, other electronic means
as may be authorized by the [c]ourt, or as provided for in
international conventions to which the Philippines is a party.
Modes of service
Pleadings, motions, orders, judgments and other courts
submissions shall be served:
1. Personally
2. By registered mail
3. By accredited courier
4. By electronic mail, facsimile transmission, or other
electronic means as may be authorized by the Court
5. By service as provided for in international conventions to
which the Philippines is a party
a. Note: Guidelines on implementation in the Phil of
the Hague Service convention
6. Substituted service
Personal Service
Section 6. Personal [s]ervice. – Court submissions may be
served by personal delivery of a copy to the party or to the
party’s counsel, or to their authorized representative named
in the appropriate pleading or motion, or by leaving it in his
or her office with his or her clerk, or with a person having
charge thereof. If no person is found in his or her office, or
his or her office is not known, or he or she 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 residing
therein.
Personal Service
1. Delivering personally a copy of the pleading to the
party or his counsel
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
2. Leaving it in counsel’s office or any person in charge
thereof
3. If no person is found in his office, by leaving a copy
thereof, between 8am to 6pm at the party’s or
counsel’s residence with any person of suitable age
and discretion
Which comes first, the filing or service of a pleading?
It depends on what pleading you are filing. If you are filing an
initiatory pleading such as complaint, the filing comes first.
Once it is filed in court, it is not anymore your duty or
obligation to furnish a copy of the complaint to the defendant
or other party-it is the obligation of the court.
So if you will submit 4 or 5 copies of your complaint, the court
will give you one copy of that while the rest will be retained
by the court. Some of the copies will be served by the court
to the defendant together with the Summons.
The sheriff will serve the summons and attached therewith is
a copy of the complaint. The filing of the complaint comes first
before it is served to the defendant.
If you are the defendant and you received the Summons, you
will have to prepare your Answer. Your Answer must be filed
in court and at the same time furnish a copy to the plaintiff.
Which one should come first, the service or the filing?
The Service of the Answer to the plaintiff will now come first
before the filing. Before you file the Answer in court, you will
have to furnish a copy of the pleading to the other party. All
subsequent pleadings after the filing of the complaint must be
served first before it is filed in court. Why?
The court will not accept any pleadings filed before it if there
is no proof that you have furnished a copy of the pleading to
the other party so that the other party will know you have filed
a pleading and she will have sufficient time to prepare a
response to that pleading.
How do you serve the pleading?
Normally, you serve it by personal service.
How is personal service of pleading done?
1. By delivering personally a copy of the pleading to the
party or his counsel
a. For example, your lawyer has a messenger in his
office. The messenger of the office will be the one
to serve a copy of your Answer to the lawyer or
plaintiff. After serving the Answer, the messenger
will now go to court and file it. When the court
receives your answer, the first thing it will do is to
check if there is proof that the plaintiff has already
been furnished a copy of the said Answer.
The pleadings that you furnish to the other party need
not be furnished to the party but through the lawyer.
The pleading shall be served personally to the lawyer or
if he cannot be located, then to the party.
2. If the lawyer is not around when the pleading is served,
it can be served to the secretary of the lawyer or any
person in charge thereof in the law office.
a. Once the secretary receives it, you have to let her
sign showing that she received it and the date and
time it was received.
3. If no person is found in his office, it can be served by
leaving a copy thereof, between 8Am to 6PM at the
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party’s or counsel’s residence with any person of suitable
age and discretion.
Service by mail
Section 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 to the
party’s counsel at his or her office, if known, otherwise at his
or her residence, if known, with postage fully pre-paid, and
with instructions to the postmaster to return the mail to the
sender after ten (10) calendar 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.
Service by mail:
1. Registered Mail
2. Accredited courier
Between an accredited private courier and registered mail, the
latter is the preferred mode of service. But in places where
there is no registered mail service, then you may mail it
through an accredited private courier.
How service by registered mail is made:
1. Depositing the copy in the post office in a sealed envelope
2. The copy must be plainly addressed to the party or
counsel at his office, if known. Otherwise, address to his
residence, if known.
3. Postage must be fully prepaid
4. Copy must come with instructions to the postmaster to
return the mail to the sender after 10 calendar days if the
copy remains undelivered.
Ordinary mail- if no registry service is available in the locality
of either the sender or addressee, service can be made
through ordinary mail.
Substituted Service
Section 8. Substituted service. – If service of pleadings,
motions, notices, resolutions, orders and other papers cannot
be made under the two preceding [S]ections, the office and
place of residence of the party or his or her 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.
Substituted Service of Pleadings
If service of pleadings, etc. and other papers cannot be made
personally or 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
to both personal service and service by mail. The service is
complete at the time of such delivery.
Note: Substituted service of pleadings refers to that delivery
of the copy of the pleading to the clerk of court because the
address of the other part’s lawyer or the address of the party
himself could not be found in the mailing address. The copy
intended for the adverse party shall be delivered to the clerk
of court and that in itself shall be considered as a substituted
service of pleading.
Note 2: Unlike the other means of service, it seems that there
is no provision under the Amended Rules which outlines how
service via accredited courier is done.
At most, the Amended Rules only provide that in the case of
judgments, final orders, and resolutions, such service must be
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
preceded by an ex parte motion requested by any party to the
proceedings.
Service of Decisions, Orders, or Resolutions
Section 13. Service of [j]udgments, [f]inal [o]rders or
[r]esolutions. – Judgments, final orders or resolutions shall
be served either personally or by registered mail. Upon ex
parte motion of any party in the case, a copy of the judgment,
final order, or resolution may be delivered by accredited
courier at the expense of such party. When a party summoned
by publication has failed to appear in the action, judgments,
final orders or resolutions against him or her shall be served
upon him or her also by [means of] publication at the expense
of the prevailing party.
Service of court judgments, decisions, orders or resolutions
shall be done:
1. By personal service
2. By registered mail
3. By publication
4. By accredited courier, upon ex parte motion of any
party
Nota Bene: Service of decision by publication is allowed only
if the summons was also served by publication. Decisions,
orders, or resolutions of the court shall also be served to all
parties of the case. They must all be served with a copy.
By personal service
How does the court serve the parties with a copy of its
judgments, decisions, orders, resolutions?
It shall be done by personal service. When we say personal
service, it will be delivered by the court. The court has its own
messenger called a process server who will serve it personally
to the lawyer of the party at the law office. If the lawyer is not
around, it shall be given to the secretary who will receive it
and stamp the rubber stamp of the office with the date and
time she received the same.
By registered mail
If the lawyer or party is holding office in another province or
in a place that is far from the court, then it becomes
impractical to serve a copy at the province or place of the
party. Thus, they may serve it by registered mail.
Now the court has already an arrangement with the postal
office that court orders and processes will be coursed through
the post office by way of registered mail.
By publication
The third option is by publication. The decision of the court
may be served by publication only if the summons was
also served by publication.
This refers to a situation whereby the Summons was served
by publication because the defendant could no longer be
located nor found. After the service of summons by
publication, the plaintiff may be allowed to present her
evidence ex parte. After she is through presenting her
evidence, the court will decide. If the court will decide in favor
of the plaintiff, the court shall also publish the decision in a
newspaper because the Summons was also published in a
newspaper.
Service by Electronic Means and Fascimile (if both
parties consented to it)
Section 9. Service by electronic means and facsimile. –
Service by electronic means and facsimile shall be made if the
party concerned consents to such modes of service.
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Service by electronic means shall be made by sending an e-
mail to the party’s or counsel’s electronic mail address, or
through other electronic means of transmission as the parties
may agree on, or upon direction of the court.
Service by facsimile shall be made by sending a facsimile copy
to the party’s or counsel’s given facsimile number.
a. Service by electronic means- sending e-mail to the
parties or counsel’s e-mail address or through other
electronic means
b. Service by facsimile shall be made by sending a
facsimile copy to the party
Note: Section 9 is allowed only if both parties consented to it.
Judge Q: The rules is not explicit as to how consent is given
so in my court, we made a consent form so that it satisfies the
requirement under the Rules of Court.
What are other electronic means?
Not sure. Maybe by viber, chat, etc.? If the respective parties
agreed to the sending of the respective pleadings through
electronic means, then they will have to submit to the court
their email addresses and telephone numbers for the use of
facsimile.
Presumptive service
Section 10. Presumptive service. – There shall be
presumptive notice to a party of a court setting if such notice
appears on the records to have been mailed at least twenty
(20) calendar days prior to the scheduled date of hearing and
if the addressee is from within the same judicial region of the
court where the case is pending, or at least thirty (30)
calendar days if the addressee is from outside the judicial
region.
There is a presumptive notice to a party of a court setting if
such notice appears on the records to have been mailed at
least 20 days prior to date of hearing if the addressee is within
the same judicial region or at least 30 days if the addressee is
residing outside the judicial region.
Note: When the court sends out notices of hearing, the court
will send it by registered mail because the party or his counsel
is residing in another province. Once it is made, there is a
presumption that the notice has been received by the other
party after the lapse of 20 days, provided that the court and
the addressee belongs to the same judicial region or 30 days
if the addressee is residing outside the judicial region.
Here in Cebu, if the RTC of Cebu sends out a notice to parties
residing in Bohol, Negros Occidental, or Siquijor, it requires at
least 20 days for the presumption of service to apply since
these places belong to the same judicial region. If the party is
outside the 7th judicial region, it requires 30 days.
Note 2: Since it is provided as a mere presumption, it may be
subject to proof to the contrary, such as when counsel
adduces evidence that notice of the court setting was indeed
not served.
Change of Electronic Mail Address or Facsimile
Number
Section 11. Change of electronic mail address or
facsimile number. – A party who changes his or her
electronic mail address or facsimile number while the action is
pending must promptly file, within five (5) calendar days from
such change, a notice of change of e-mail address or facsimile
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
number with the court and serve the notice on all other
parties. Service through the electronic mail address or
facsimile number of a party shall be presumed valid unless
such party notifies the court of any change, as
aforementioned.
Note 1: Must notify the court in 5 days.
Note 2: If you agree to the service by electronic means and
you later on change your email address, you must immediately
notify the court. Otherwise, the court will not be faulted if it
relied to your old email address, you cannot complain later on
that you have not received it. Any actual change in the e-mail
addresses or facsimile numbers of the parties will not bind the
court unless the party gives notice of the change.
Subject of Electronic Mail or Facsimile Must Follow the
Prescribed Format of Caption
Section 12. Electronic mail and facsimile subject and
title of pleadings and other documents. – The subject of
the electronic mail and facsimile must follow the prescribed
format: case number, case title and the pleading, order or
document title. The title of each electronically-filed or served
pleading or other document, and each submission served by
facsimile shall contain sufficient information to enable the
court to ascertain from the title: (a) the party or parties filing
or serving the paper, (b) nature of the paper, (c) the party or
parties against whom relief, if any, is sought, and (d) the
nature of the relief sought.
Note: When you send a pleading or any other document by
electronic means to the other party and furnish a copy thereof
to the court via electronic means, it has to be done in the
same format as a pleading as we have discussed in Rule 7.
Most importantly, it should indicate the nature of the pleading
filed.
The subject of the e-mail and facsimile must follow the
prescribed format:
1. Case number, followed by
2. Case title, followed by
3. The pleading, order or document title
*The title of each electronically filed or served pleading or
document, and each submission served by facsimile, shall
contain sufficient information to enable the court to ascertain
from the title:
1. the parties filing or serving the paper
2. the nature of the paper
3. the party or parties against whom relief, if any, is sought
and
4. the nature of the relief sought.
Conventional Service or Filing
Section 14. Conventional service or filing of orders,
pleadings and other documents. – Notwithstanding the
foregoing, the following orders, pleadings, and other
documents must be served or filed personally or by registered
mail when allowed, and shall not be served or filed
electronically, unless express permission is granted by the
[c]ourt:
(a) Initiatory pleadings and initial responsive pleadings, such
as an answer;
(b) Subpoena, protection orders, and writs;
(c) Appendices and exhibits to motions, or other documents
that are not readily amenable to electronic scanning may, at
the option of the party filing such, be filed and served
conventionally; and
(d) Sealed and confidential documents or records.
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Note: Initiatory pleadings and answers must follow the
conventional way of service.
What is the conventional service?
Personal service and Personal Filing
But the Answer may be through registered mail or private
courier.
GR: The following should not be served or filed electronically,
and shall be filed or served personally or by registered mail:
1. Initiatory pleadings and initial responsive pleadings
(answer)
2. Subpoena, protection orders, and writs
3. Appendices and exhibits to motions, or other
documents that are not readily amenable to
electronic scanning (at the option of the party filing)
4. Sealed and confidential documents or records
Exception: When the court gives express permission for
them to be filed electronically.
Completeness of Service
Section 15. Completeness of service. – Personal service
is complete upon actual delivery. Service by ordinary mail is
complete upon the expiration of ten (10) calendar days after
mailing, unless the court otherwise provides. Service by
registered mail is complete upon actual receipt by the
addressee, or after five (5) calendar days from the date he or
she received the first notice of the postmaster, whichever date
is earlier. Service by accredited courier is complete upon
actual receipt by the addressee, or after at least two (2)
attempts to deliver by the courier service, or upon the
expiration of five (5) calendar days after the first attempt to
deliver, whichever is earlier.
Electronic service is complete at the time of the electronic
transmission of the document, or when available, at the time
that the electronic notification of service of the document is
sent. Electronic service is not effective or complete if the party
serving the document learns that it did not reach the
addressee or person to be served.
Service by facsimile transmission is complete upon receipt by
the other party, as indicated in the facsimile transmission
printout.
a. Personal- actual delivery
b. Ordinary mail- after 10 days from mailing
c. Registered mail- upon actual receipt or after 5 days
from first receipt of notice from postmaster
whichever is earlier
d. Accredited courier- upon actual receipt or after 2
attempts or after 5 days from first attempt to serve
it
e. Electronic service- is complete at the time of the
electronic transmission of the document, or when
available, at the time when the electronic notification
of service of the document is sent. Electronic service
is not effective or complete if the party serving the
document learns that it did not reach the addressee
or person to be served
f. Service by facsimile transmission- is complete upon
receipt by the other party, as indicated in the
facsimile transmission printout
Note: If it is done by personal service, for example, if your
pleading was served at the office of the lawyer of the opposing
party, actual receipt thereof is deemed a complete service.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
If it is done by ordinary mail, it is deemed complete after 10
days from mailing. There is a presumption of completeness of
service.
If it is done by registered mail, the actual receipt or after 5
days from first receipt of notice from postmaster, whichever
is earlier, is deemed a completeness of service. For example,
if you mail your pleading to Davao and both the other party
and his lawyer resides in Davao while the case is tried here in
Cebu.
In registered mail, the pleading is placed in an envelope and
the name of the addressee is indicated, and attached to it is a
registry return card. When you deliver it to the post office,
you tell the cashier or the person in charge that you will mail
it by registered mail – the registry return card must be
attached. The post office will issue to you a receipt which will
serve as proof that you mailed it by registered mail. Such
receipt should be attached to the copy of the pleading in court
because the clerk of court will try to check it. When that
envelop has already been delivered to Davao City, the lawyer
who receives it will be asked by the postman to sign the
registry receipt evidencing that he already received it. The
postman will detach the registry receipt from the envelop and
mail it back to the post office of Cebu City and the latter will
deliver the registry receipt to you. That is the best proof that
the lawyer in Davao has already received your mail. You will
submit it to the court so that it will be attached to the record.
In the meantime, for purposes of filing a pleading, that
registered receipt issued to you by the post office of Cebu City
must be attached to the pleading and file it in court because
that clerk of court will check if you have furnished a copy of
the pleading to the opponent.
In Davao, the service of the pleading will be deemed complete
upon actual receipt by the lawyer in Davao or it is possible
that the post office in Davao will notify the lawyer that he has
a registered mail in the post office to be picked up. Otherwise,
if he fails to pick it up after the lapse of 5 days, that registered
mail shall be deemed served.
In the case of an accredited courier, the service of the
pleading shall be deemed complete upon actual receipt or
after 2 attempts or after 5 days from the first attempt to serve
it.
Electronic service is complete at the time of the electronic
transmission of the document, or when available, at the time
when the electronic notification of service of the document is
sent. Electronic service is not effective or complete if the party
serving the document learns that it did not reach the
addressee or person to be served.
When you will send an email to someone, you will know
whether that email was received by the addressee or not by
checking the “Sent” items, or you will be notified that the
email was not sent to the addressee.
Service by facsimile transmission is complete upon
receipt by the other party, as indicated in the facsimile
transmission printout. When you say facsimile, there is already
a printout that was already received by the other party.
Proof of Filing
Section 16. Proof of filing. – The filing of a pleading or any
other court submission shall be proved by its existence in the
record of the case.
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(a) If the pleading or any other court submission is not in the and document tracking
record, but is claimed to have been filed personally, the filing number
shall be prove[n] by the written or stamped acknowledgment Electronic Filing By an affidavit of electronic
of its filing by the clerk of court on a copy of the pleading or filing of the filing party, and
court submission; a paper copy of the pleading
(b) If the pleading or any other court submission was filed by or other document
registered mail, the filing shall be proven by the registry transmitted, or a written or
receipt and by the affidavit of the person who mailed it, stamped acknowledgment
containing a full statement of the date and place of deposit of of its filing by the clerk of
the mail in the post office in a sealed envelope addressed to court
the court, with postage fully prepaid, and with instructions to Filing by other authorized By an affidavit of electronic
the postmaster to return the mail to the sender after ten (10) electronic means filing of the filing party, and
calendar days if not delivered. a copy of the electronic
(c) If the pleading or any other court submission was filed acknowledgment of its filing
through an accredited courier service, the filing shall be by the court.
proven by an affidavit of service of the person who brought
the pleading or other document to the service provider, Proof of Service
together with the courier’s official receipt and document Section 17. Proof of service. – Proof of personal service shall
tracking number. consist of a written admission of the party served, or the
(d) If the pleading or any other court submission was filed by official return of the server, or the affidavit of the party
electronic mail, the same shall be proven by an affidavit of serving, containing a statement of the date, place and manner
electronic filing of the filing party accompanied by a paper of service. If the service is made by:
copy of the pleading or other document transmitted or a (a) Ordinary mail. – Proof shall consist of an affidavit of the
written or stamped acknowledgment of its filing by the clerk person mailing stating the facts showing compliance with
of court. If the paper copy sent by electronic mail was filed by [S]ection 7 of this Rule.
registered mail, paragraph (b) of this Section applies. (b) Registered mail. – Proof shall be made by [the] affidavit
(e) If the pleading or any other court submission was filed mentioned above and the registry receipt issued by the
through other authorized electronic means, the same shall be mailing office. The registry return card shall be filed
proven by an affidavit of electronic filing of the filing party immediately upon its receipt by the sender, or in lieu thereof[,]
accompanied by a copy of the electronic acknowledgment of the unclaimed letter together with the certified or sworn copy
its filing by the court. of the notice given by the postmaster to the addressee.
(c) Accredited courier service. – Proof shall be made by an
How do you prove that you have filed the pleading in affidavit of service executed by the person who brought the
court? pleading or paper to the service provider, together with the
The best proof that you have filed the pleading in court is courier’s official receipt or document tracking number.
when your pleading is already attached to the records of the (d) Electronic mail, facsimile, or other authorized electronic
court or the stamp by the clerk of court with her signature and means of transmission. – Proof shall be made by an affidavit
the date and time of the filing. of service executed by the person who sent the e-mail,
facsimile, or other electronic transmission, together with a
If it cannot be proven, present the affidavit of your messenger printed proof of transmittal.
in the law office that he is the one who filed it at such date
and time. Note: The best proof of service may also be the signature of
the secretary of the lawyer of the other party or the signature
Mode Proof of Filing of the lawyer who receives it.
Personal Filing By the written or stamped
acknowledgment of its filing If it is by registered mail, the best evidence is the registry
by the clerk of court on a return card that is returned to you by the post office.
copy of the pleading or
court submission Mode Proof of Service
Filing by registered mail By the registry receipt and Personal Service A written admission of the
the affidavit of the person party served, or the official
who mailed it containing a return of the server, or the
full statement of the date affidavit of the party
and place of deposit of the serving, containing a
mail in the post office in a statement of the date,
sealed envelope addressed place, and manner of
to the court, with postage service
fully prepaid, and with the Service by ordinary mail An affidavit of the person
instructions to the mailing stating the facts
postmaster to return the Note: This mode of service showing compliance with
mail to the sender after 10 may only be availed of if no Sec. 7, Rule 13.
calendar days if not registry service is available
delivered. in the locality as per Sec. 7,
Filing by accredited courier By an affidavit of service of Rule 13
the person who brought the Service by Registered Mail An affidavit of the person
pleading or other document mailing stating the facts
to the service provider and showing compliance with
the courier’s official receipt Section 7, Rule 13 and the

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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registry receipt issued by required to pay the deficiency, but jurisdiction is not
the mailing office. automatically lost.
Service by accredited An affidavit of service
courier executed by the person who Payment of docket fees for cases on appeal
brought the pleading or The amended Rules requires that the appellate docket and
paper to the service other lawful fees must be paid within the same period for
provider, and the courier’s taking an appeal. Note that the appellate docket fee is not
official receipt or document paid in the appellate court but in the court which rendered the
tracking number. judgment or final order.
Service by Electronic Mail, An affidavit of service
Facsimile, or other executed by the person who Payment of docket fee within the prescribed period is
authorized electronic means sent the e-mail, facsimile, or mandatory for the perfection of an appeal. Without such
of transmission other electronic payment, the appellate court does not acquire jurisdiction
transmission, and printed over the subject matter of the action and the decision sought
proof of transmissal. to be appealed from becomes final and executory. Hence,
nonpayment is a valid ground for dismissal of an appeal.
Court-issued Orders and Other Documents However, delay in the payment of the docket fees confers
Section 18. Court-issued orders and other documents. upon the court a discretionary, not mandatory, power to
– The court may electronically serve orders and other dismiss an appeal.
documents to all the parties in the case which shall have the
same effect and validity as provided herein. A paper copy of
the order or other document electronically served shall be
retained and attached to the record of the case.

The best proof of service is the process server of the court.

Notice of Lis Pendens

Section 19. Notice of lis pendens. – In an action affecting the
title or the right of possession of real property, the plaintiff
and the defendant, when affirmative relief is claimed in his or
her answer, may record in the office of the registry of deeds
of the province in which the property is situated a notice of
the pendency of the action. Said notice shall contain the
names of the parties and the object of the action or defense,
and a description of the property in that province affected
thereby. Only from the time of filing such notice for record
shall a purchaser, or encumbrancer of the property affected
thereby, be deemed to have constructive notice of the
pendency of the action, and only of its pendency against the
parties designated by their real names. The notice of lis
pendens hereinabove mentioned may be cancelled only upon
order of the court, after proper showing that the notice is for
the purpose of molesting the adverse party, or that it is not
necessary to protect the rights of the party who caused it to
be recorded.

Note: A notice of lis pendens is a notice annotated at the back

of the title of the property to serve as a warning to the whole
world that the property is a subject of a pending case or
litigation so that whoever will deal with that property will be
made aware that the property is subject to a pending case. So
if there is a notice of lis pendens attached at the back of the
title, the buyer of the property cannot claim that he is a buyer
in good faith- that is the purpose of the notice of lis pendens.

Payment of docket fees

Not simply the filing of the complaint or appropriate initiatory
pleading, but the payment of the prescribed docket fee, that
vests a trial court with jurisdiction over the subject matter or
nature of the action.

In some cases, liberal interpretation was applied where

nonpayment of docket fee at the time of the filing of the
complaint does not automatically cause the dismissal of the
case, as long as the fee is paid within the applicable
prescriptive or reglementary period.

Also, if the amount of the docket fee is insufficient considering

the amount of the claim, the party filing the case will be
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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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RULE 14. SUMMONS
Summons is a writ or process issued and served upon the
defendant in a civil action for the purpose of securing his
appearance therein- that is, of acquiring jurisdiction over the
person of the defendant. It is a written order from the court
informing the defendant that there is a case filed against him,
and he has to file his answer to that complaint.
Summons in civil cases is the counterpart of warrant of arrest
in criminal cases. Under the Rules on Criminal Procedure,
when an information is filed in court, the judge will issue a
warrant of arrest. In civil cases, when a complaint is filed in
court, the court will issue what is known as a summons under
Section 1.
The issuance of summons is not discretionary on the part of
the court or the clerk of court but is a mandatory requirement.
Section 1 directs that the clerk of court shall issue the
corresponding summons to the defendant upon: (1) the filing
of the complaint, and (2) the payment of the requisite legal
fees.
The use of the term “shall” leaves no doubt as to the
mandatory character of service of summons.
Importance of summons
Service of summons is a vital and indispensable ingredient of
due process and compliance with the rules regarding the
service of summons is not only a requirement of due process
but also of jurisdiction.
Since the essence of due process lies in the reasonable
opportunity to be heard and to submit any evidence the
defendant may have in support of his defense, he must be
properly served with summons.
Purpose of summons
Its purpose is two-fold:
1. To acquire jurisdiction over the person of the defendant
2. To notify that the defendant that an action has been
commenced so that he may be given an opportunity to
be heard on the claim against him.
Note:
➢ The service of summons enables the court to acquire
jurisdiction over the person of the defendant. If there is
no service of summons, any judgment rendered or
proceedings had in a case are null and void, except in
case of voluntary appearance.
➢ In an action in personam, jurisdiction over the person of
the defendant is necessary for the court to validly try and
decide the case.
➢ By the filing of the complaint and the payment of the
required filing and docket fees, the court acquires
jurisdiction only over the person of the plaintiff, not over
the person of the defendant. Acquisition of jurisdiction
over the latter is accomplished by a valid service of
summons upon him. Service of summons logically follows
the filing of the complaint. Note further that the filing of
the complaint tolls the running of the prescriptive period
of the cause of action in accordance with Article 1155 of
the Civil Code.
➢ The court would be devoid of authority to hold a person
liable for the relief prayed for by the plaintiff without first
vesting upon said court jurisdiction over the person of the
defendant.
➢ On the basis of the principle mentioned above, a
judgment rendered against a corporation, ordering it to
pay the plaintiff, is not a valid judgment, where the
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
corporation was not summoned to the suit, even if its
president knew of the action in his capacity as counsel for
the other defendant. Basic is the rule that the corporation
has a personality separate and distinct from the people
who compose it.
➢ In an action in rem or quasi in rem, jurisdiction over the
defendant is not required and the court acquires
jurisdiction over an action as long as it acquires
jurisdiction over the res. The purpose of summons in
these actions is not the acquisition of jurisdiction over the
defendant but mainly to satisfy the constitutional
requirement of due process.
Service of summons applies to any action
Regardless of the type of action---whether it is in personam,
in rem or quasi in rem- proper service of summons is
imperative.
Effect of knowledge of the filing of the action
Knowledge by the defendant of the action filed against him
does not dispense with the needs for summons. Summons
must still be issued and served.
How is jurisdiction over the person acquired?
Jurisdiction over the person of the defendant is acquired
through a coercive process, generally by the service of
summons issued by the court, or through the defendant’s
voluntary appearance or submission to the court. Stated
otherwise, without a valid service of summons, a court may
still acquire jurisdiction over the person of the defendant,
unless he voluntarily submits himself to the jurisdiction of the
court.
Thus, while a trial court acquires jurisdiction over the person
of the defendant by service of summons, a court may still
acquire jurisdiction over the person of the defendant if he
performs acts which could be reasonably construed as
voluntary appearance.
Voluntary appearance
Voluntary appearance is any appearance of the defendant in
court, provided he does not raise the question of lack of
jurisdiction of the court.
An appearance is whatever form, without explicitly objecting
to the jurisdiction of the court over the person, is a submission
to the jurisdiction of the court over the person. It may be
made by simply filing a formal motion, or plea or answer. If
his motion is for any other purpose than to object to the
jurisdiction of the court over his person, he thereby submits
himself to the jurisdiction of the court.
When is a defendant deemed to have made a voluntary
appearance?
a. Voluntary appearance of attorney
b. A motion, by answer or simple manifestation
c. A telegraphic motion for postponement
d. Filing a motion for dissolution of attachment
e. Failure to question the invalid service of summons
f. Filing a motion for extension of time to file an answer
g. Filing a Motion to Dismiss on the ground of lack of
jurisdiction over its person and at the same time
raising affirmative defenses and praying for
affirmative relief
Uniformity of the rules of summons
The rules on summons apply with equal force in actions before
the RTC, MTC, MTCC, MCTC and MTTTC. This is because the
procedure in the Municipal Trial Courts shall be the same as
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in the RTC. Except (a) where a particular provision expressly
or impliedly applies only to either of said courts, or (b) in civil
cases governed by the Rule on Summary Procedure.
Section 1. Clerk to issue summons. – Unless the
complaint is on its face dismissible under Section 1, Rule 9,
the court shall, within five (5) calendar days from receipt of
the initiatory pleading and proof of payment of the requisite
legal fees, direct the clerk of court to issue the corresponding
summons to the defendants.
Judge Q: Under the revised version, it is incumbent upon the
judge before he directs. The section gives the obligation to
the judge to direct the clerk of court. Why is this made an
obligation? That is because he is also under obligation to
examine the complaint because it says there unless the
complaint is on its face dismissible under Rule 9, Section 1.
This has been emphasized by the chairman of the revision
committee, Justice Quismundo, reminding judges to carefully
comply with this. And the grounds if you remember are lack
of jurisdiction over the subject matter, litis pendentia, res
judicata and the statute of limitations so it is incumbent over
the court to go over the complaint even before directing the
clerk to issue summons because if the court finds that there
is no jurisdiction, court is under obligation to dismiss the case
motu proprio so no need of issuance of summons so in that
level alone, the case is already dismissed so this is an
innovation under the new rules. So remember only those
grounds and if there is no ground for dismissal, the court
should do it within 5 calendar days and direct the clerk of court
to issue the summons. In my court, I issue an order directing
the clerk of court so it should also be part of the record. In
theory, it says 5 calendar days but in reality, it is not actually
the filing of the case with the clerk of court. In every station
there is one clerk of court for all branches and each branch
has a branch clerk of court. So how should the complaint be
filed? With the office of the clerk of court for the entire station
so there is one clerk of court for all branches but once the
case is raffled, it will be transmitted to the branch where it is
raffled and the records will be transmitted from the clerk of
court to that branch. So how should we count the days? So it
is unfair to start counting even before the particular case has
been raffled to a particular branch. So, when the complaint
has been transmitted to the particular branch where the case
is raffled so if there is no ground for dismissal, then the clerk
of court will issue
How, Who and When Issued
The summons is issued- once the complaint is filed in court,
within 5 days from the filing of the complaint and the payment
of docket and other lawful fees, the judge will direct the clerk
of court to issue the summons. And the summons is issued in
the name of the Republic of the Philippines, contains the
caption of the case; the court where it is filed or the court
which issued the summons.
Who will sign it?
The summons is also signed by the clerk of court, and the
complaint will be attached to it.
Summary
➢ Who will issue? The clerk of court
➢ Who will sign it? The clerk of court
➢ When is it issued? 5 days after the filing of the complaint
and the payment of docket and other lawful fees
➢ What to attach? A copy of the complaint
➢ What is its contents? Refer to Section 2
➢ To whom is the summons directed? The defendant
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Section 2. 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) When authorized by the court upon ex parte motion, an
authorization for the plaintiff to serve summons to the
defendant;
(c) A direction that the defendant answer within the time fixed
by these Rules; and
(d) 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.
Judge Q: For 2 (b), take note this is not applicable in all cases
since service of summons must be primarily served by the
sheriff but only where there is a failure to serve, the plaintiff
is allowed to serve. In cases where plaintiff will serve himself,
plaintiff must file ex parte motion. Another important
document that must be served is a copy of the complaint. That
is quite logical. If you are being directed to file an answer,
there is a requirement that the complaint must be attached
and in cases where a defendant is a minor or incompetent,
there must also be an order of the court appointing guardian
ad litem. The rules does not provide for the number of copies
Is the defendant bound to comply with the summons
where service was made without attaching a copy of
the complaint?
In Pagalaran vs. Bal-latan 13 Phil. 135, the defendant was
served summons but without a copy of the complaint. She did
not appear and file her answer as ordered. The trial court then
issued an order declaring her in default. A principal issue
raised in the SC was whether or not the proceedings in the
trial court should be annulled on the ground that the
defendant had never been summoned pursuant to the Rules
because she was not served a copy of the complaint.
The SC, while admitting that the service of summons was
defective, treated the defect as having been waived by the
defendant’s failure to seasonably challenge the trial court’s
jurisdiction over her person. She should have appeared to
challenge the jurisdiction of the court.
If a complaint is amended and an additional defendant
is included, is there a necessity of issuing new
summons on the additional defendant?
Yes. When an additional defendant is included in the action,
summons must be served upon him for the purpose of
enabling the court to acquire jurisdiction over his person. The
case is commenced against the additional defendant upon the
amendment in the complaint.
Suppose a defendant, who has already been
summoned, died, and there was substitution of party,
his legal representative was substituted in his place, is
there a necessity of issuing new summons on the
substituted defendant?
No. The order of the court ordering him to be substituted is
already sufficient. Anyway, he is only a continuation of the
personality of the original defendant. Just serve the copy of
the order, where is ordered to be substituted.
BAR Q: If a defendant is served with summons and
later on the complaint is amended by the plaintiff, is
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there a necessity that another summons be issued and
served based on the amended complaint? Or is the
summons of the original complaint sufficient?
It depends on whether the amendment was made before or
after defendant’s appearance in the action.
If the defendant has not filed an answer to the original
complaint there must be another summons issued on the
amended complaint. A new summons must be served all over
again based on the amended complaint. If the defendant has
already filed an answer to the original complaint or he has
already appeared in the action, and after that the complaint is
amended, there is no need of issuing new summons on the
amended complaint.
Connecting the question with Rule 11, suppose the
defendant was served with summons on the original
complaint and before he could answer, there is now an
amended complaint, so there will be new summons on
the amended complaint, what is the period to file an
answer?
The period to file an answer is 15 days all over again. There
will be another period of 15 days to file an answer to the
amended complaint upon receipt of the amended complaint
and the summons.
Suppose the defendant has already filed an answer to
the original complaint and after that there is an
amended complaint, what must the plaintiff do?
This time, there is no need of summons. All that the plaintiff
has to do is furnish the defendant a copy of the amended
complaint together with the motion to admit it. Just serve the
defendant a copy of the amended complaint with a copy of
the order admitting the filing of the amended complaint.
Section 3. By whom served. – The summons may be
served by the sheriff, his or her deputy, or other proper court
officer, and in case of failure of service of summons by them,
the court may authorize the plaintiff - to serve the summons
- together with the sheriff.
In cases where summons is to be served outside the judicial
region of the court where the case is pending, the plaintiff
shall be authorized to cause the service of summons.
If the plaintiff is a juridical entity, it shall notify the court, in
writing, and name its authorized representative therein,
attaching a board resolution or secretary’s certificate thereto,
as the case may be, stating that such representative is duly
authorized to serve the summons on behalf of the plaintiff.
If the plaintiff misrepresents that the defendant was served
summons, and it is later proved that no summons was served,
the case shall be dismissed with prejudice, the proceedings
shall be nullified, and the plaintiff shall be meted appropriate
sanctions.
If summons is returned without being served on any or all the
defendants, the court shall order the plaintiff to cause the
service of summons by other means available under the Rules.
Failure to comply with the order shall cause the dismissal of
the initiatory pleading without prejudice.
Who will serve the summons?
1. Sheriff
2. Deputy Sheriff
3. Other proper court officer (like the process server)
4. Plaintiff, in case of failure by (1) to (3), if authorized by
the court
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Note: This is something new under the 2019 Amendment.
Now, the plaintiff can already serve summons if the people
listed in 1-3 failed to serve it upon the defendant. But the
plaintiff cannot serve it alone; he must be accompanied by the
sheriff.
What will the plaintiff do if the summons is not yet served? He
will file a motion in court asking the court to authorize him,
together with the sheriff, to serve the summons on the
defendant.
This will normally apply if the defendant resides in a faraway
province, and the plaintiff wants the summons served
immediately; he is willing to shoulder the expenses together
with the sheriff. That is allowed now, but with prior approval
of the court.
Judge Q: It should be the sheriff who should serve. In in his
sala, there is no permanent sheriff so how do they serve it?
They ask for the assistance of the sheriff at large, the sheriff
assigned to the clerk of court. He will serve as the ex-officio
sheriff but recently their sheriff resigned so there is no sheriff
available so next option is judge directed the court process
server to serve summons. Now there is an underscored
portion and in case of failure to serve summons, court may
authorize plaintiff to serve summons together with the sheriff.
So it's a bit confusing. It means that there is an existing officer
but they failed to serve summons through the allowed modes
of service so last option would be, perhaps reason is failure to
find the specific defendant, however, in the service of
summons, he must be accompanied by the sheriff. Take note
that it is only the sheriff, no other officer. In my case, then it
would be difficult to comply because the rules is explicit that
it should be together with the sheriff. If not accompanied by
the sheriff, that is a ground for invalidating the service of
summons.
Second paragraph, take note that the area should be outside
the judicial region of the court so in my case, rtc mandaue and
the seventh judicial region and scope is province of cebu,
bohol, negros oriental so these are the areas. So if the address
is within that judicial region, very crucial to determine, if it is
outside, for instance in baguio or ilocos, the plaintiff shall be
authorized to cause the service of summons. This time there
is no requirement that he should be accompanied by the
sheriff
Third paragraph, it is clear that he should be authorized. Now,
if the plaintiff misrepresents, the case shall be dismissed with
prejudice. This is a fatal consequence. Proceedings shall be
nullified and naay appropriate sanctions which can be
classified as contemptuous
Next paragraph, if summons is returned without being served,
what is the option? Court can cause issue service of summons
by other means available under the rules because the primary
mode of service is personal service and if it is being returned,
then you have to resort to other means. Failure to comply with
the order shall cause the dismissal of the initiatory pleading
without prejudice--with reference to the order of the court to
reference.
Effect if plaintiff misrepresents in the service of
summons
The complaint or the case will immediately be dismissed with
prejudice, and the plaintiff will also suffer the consequences
of his action because the court may impose disciplinary action
on him.
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Section 4. Validity of summons and issuance of alias
summons[.] – Summons shall remain valid until duly served,
unless it is recalled by the court. In case of loss or destruction
of summons, the court may, upon motion, issue an alias
summons.
There is failure of service after unsuccessful attempts to
personally serve the summons on the defendant in his or her
address indicated in the complaint. Substituted service should
be in the manner provided under Section 6 of this Rule.
Judge Q: Section 4 of the new rules is now quite different.
Validity of summons and issuance of alias summons. So this
is quite controversial with the introduction of the revised
version. Revision committee was quick to point out that there
was no new meaning-no expiry-however, in case of loss, court
may upon issue, issue an alias summons. The common
understanding of practitioners and judges is when the
summons is not served and there is a return, that there is
failure to serve summons, that would be the basis to issue an
alias summons when in truth, the summons is valid even if
there is failure to serve. It is only the fact of loss or disruption
of summons, only time court will issue an alias summons.
There is failure of summons after unsuccessful attempt so
substituted service should be provided in the manner provided
for under Section 6 of the rule. So a service of summons is
unsuccessful if there is no personal service however, the
sheriff is under obligation to resort to substituted service that
is provided under sec 6 of this rule.
Rule in case of Failure of the Sheriff to Serve Summons
The plaintiff may request the court that he will be allowed to
serve the summons.
What is the lifespan of a summons?
The validity of the summons is until it is served, unless
recalled by the court.
However, in the event that the summons is destroyed or lost
in the hands of the plaintiff or the sheriff, the court may issue
an alias summons.
Alias summons
Alias summons is one issued when the original has not
produced its effects because of a defect in form or in the
manner of service, and when issued supersedes the first writ.
IOW, it is the second summons issued after the plaintiff tried
to serve the first summons but failed to do so.
Section 5. Service in person on defendant. – Whenever
practicable, the summons shall be served by handing a copy
thereof to the defendant in person and informing the
defendant that he or she is being served, or, if he or she
refuses to receive and sign for it, by leaving the summons
within the view and in the presence of the defendant.
How is the summons served?
Summons must be served to the defendant personally.
Meaning, it must be served personally to the defendant,
wherever the defendant may be.
When are summons served during the day?
Summons may be served at any time of the day.
Note: It can be served anywhere. But the first rule is that you
have to serve it at the residence of the defendant, or if not at
his office.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
But, if he cannot be found at his residence or at his office, the
sheriff can serve it in any other place where the defendant
can be found. So, if somebody told the sheriff that the
defendant can always be found at the cockpit arena every
Sunday, the sheriff can go there and serve the summons to
the defendant in the cockpit arena.
Refusal to Receive Summons
What if the defendant refused to receive the
summons?
If the defendant refused to receive the summons, the sheriff
can leave the summons in front of the defendant and tell the
defendant, “Okay, if you will not receive this, I will leave it
here, and I will report to the court that I already found you, I
already handed the summons to you, but you refused to
accept it.”
So maybe, to be safe, the sheriff will take a picture with his
cellphone, together with the defendant and then leave the
summons there.
The court cannot be held hostage by the defendant’s refusal
to receive the summons. So, if he refused to receive the
summons, then leave the summons in front of him, and the
sheriff can go and report to the court. Because once the
summons is served, it is the duty of the sheriff to immediately
make a report. We call that return of service of
summons.
Return of Service of Summons
Within five days from the service of summons on the
defendant, the sheriff will have to make a report or a return
of service of summons to the court.
Copy-furnish the lawyer of plaintiff so that the plaintiff will
know when the defendant received the summons, so he can
also start counting the reglementary period for the defendant
to file his answer. So that if the defendant will not file his
answer within the reglementary period, the plaintiff can file a
motion to declare the defendant in default.
Section 6. Substituted service. – If, for justifiable causes,
the defendant cannot be served personally after at least three
(3) attempts on two (2) different dates, service may be
effected:
(a) By leaving copies of the summons at the defendant’s
residence to a person at least eighteen (18) years of age and
of sufficient discretion residing therein;
(b) By leaving copies of the summons at [the] defendant’s
office or regular place of business with some competent
person in charge thereof. A competent person includes, but is
not limited to, one who customarily receives correspondences
for the defendant;
(c) By leaving copies of the summons, if refused entry upon
making his or her authority and purpose known, with any of
the officers of the homeowners’ association or condominium
corporation, or its chief security officer in charge of the
community or the building where the defendant may be
found; and
(d) By sending an electronic mail to the defendant’s electronic
mail address, if allowed by the court.
Substituted Service of Summons
In the event that the defendant cannot be located, in spite of
diligent efforts of the sheriff, he could not find the defendant
despite several attempts, then the sheriff may now resort to
substituted service of summons.
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Now, the meaning of “several attempts” here is that the sheriff
will have to make at least three attempts on two different
dates. This is something new. Three attempts.
He cannot make the three attempts in just one day. Three
attempts, but on two different dates. So, it can be that the
first and second attempt on the same day, and the third
attempt on another day.
If despite the three attempts on two different dates, the
sheriff could still not find the defendant, then the sheriff can
resort to substituted service of summons.
What is this substituted service of summons?
This simply means that the sheriff can give the summons to
another person for and in behalf of the defendant.
In substituted service of summons, actual receipt of the
summons by the defendant through the person served must
be shown. It further requires that where there is substituted
service, there should be a report indicating that the person
who received the summons in defendant’s behalf was one with
whom petitioner had a relation of confidence ensuring that the
latter would receive or would be notified of the summons
issued in his name.
Why must the material facts and circumstances
sustaining the validity of substituted service be
necessarily stated?
It is because substituted service is in derogation of the usual
method of service. It is a method extraordinary in character
and, hence, may be used only as prescribed and in the
circumstances authorized by statute. Failure to faithfully,
strictly, and fully comply with the requirements of substituted
service renders said service ineffective.
Residence
So, what the sheriff will do- he will go to the residence of the
defendant and serve the summons on a person: (1) residing
at that place; (2) must be at least 18 years of age; and (3) a
person of suitable age and discretion.
Office or the place of work
Serve it on a person in charge thereof
Time of Service (Substituted Service)
The summons shall be served, if it is substituted service,
between the time of eight in the morning up to six o clock in
the evening.
Note: Manotoc v CA provides an exhaustive discussion on
what constitutes valid resort to substituted service of
summons:
1. Impossibility of prompt personal service
a. The party relying on substituted service or the sheriff
must show that defendant cannot be served promptly
or there is impossibility of prompt service.
b. 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 prompt service.
"Several attempts" means at least 3 tries, preferably
on at least 2 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.
2. Specific details in the return
a. The sheriff must describe in the Return of Summons
the facts and circumstances surrounding the
attempted personal service. The efforts made to find
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
the defendant and the reasons behind the failure must
be clearly narrated in detail in the Return. The date
and time of the attempts on personal service, the
inquires made to locate the defendant, the name/s of
the occupants of the alleged residence or house of
defendant and all other acts done, though futile, to
serve the summons on defendant must be specified
in the Return to justify substituted service.
3. A person of suitable age and discretion
a. A person of suitable age and discretion is one who has
attained the age of full legal capacity and is
considered to have enough discernment to
understand the importance of a summons.
“Discretion” is defined as “the ability to make
decisions which represent a responsible choice and for
which an understanding of what is lawful, right or wise
may be presupposed.”
4. A competent person in charge
a. The person on whom the substituted service will be
made must be the one managing the office or
business of defendant, such as the president or
manager; and such individual must have sufficient
knowledge to understand the obligation of the
defendant in the summons, its importance, and the
prejudicial effects arising from inaction on the
summons.
GR: Personal service is the preferred mode of service of
summons.
Exception: Substituted service
Note 2: It must be noted too that substituted service
presupposes that the place where the summons is served is
the defendant’s current address or office/regular place of
business. Thus, where the defendant neither resides nor holds
office in the address stated in the summons, substituted
service cannot be resorted to.
Substituted Service of Summons v. Substituted
Service of Pleadings
Substituted Service of Substituted Service of
Summons Pleadings
Refers to the delivery of the Consists of the delivery of
summons and the complaint the pleadings to the clerk of
to another person who is court because the other
residing at the place of the party and his lawyer could
defendant, and the person no longer be found or
is at least 18 years of age, served with a copy of the
and is of suitable age and pleading.
discretion, OR, if not, in the
place of work, and it shall be
given to the person in
charge thereof.
Effect if defendant does not actually receive the summons
Where the substituted service has been validly served, its
validity is not affected by the defendant’s failure to actually
receive the summons from the person with whom the
summons had been left. It is immaterial that the defendant
does not in fact receive actual notice. The rule does not
require the sheriff or any authorized server to verify that the
summons left in the defendant’s residence or office was
actually delivered to the defendant.
Section 7. Service upon entity without juridical
personality. – When persons associated in an entity without
juridical personality are sued under the name by which they
are generally or commonly known, service may be effected
upon all the defendants by serving upon any one of them, or
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upon the person in charge of the office or place of business
maintained in such name. But such service shall not bind
individually any person whose connection with the entity has,
upon due notice, been severed before the action was filed.
Can an entity without juridical personality be sued?
The answer is yes. Like the answer I gave you before, a group
of friends, say three of them, engaged in a business of trading.
And so, they set up a store and they called it “XYZ Trading.”
That was not registered with SEC as a partnership or
corporation, but they engaged in a business without juridical
personality.
When a customer or a client would sue XYZ Trading, he would
sue XYZ Trading and the summons would be made on the
manager of that store. Or, if he knows who are the real
owners, the summons can be served on any of the known
owners or to the manager of the said entity.
Judge Q: There is no major change. If there has been
disassociation, then service will not bind that corporate entity.
Section 8. Service upon prisoners. – When the defendant
is a prisoner confined in a jail or institution, service shall be
effected upon him or her by the officer having the
management of such jail or institution who is deemed as a
special sheriff for said purpose. The jail warden shall file a
return within five (5) calendar days from service of summons
to the defendant.
Note: The summons shall be coursed through the jail warden,
and the jail warden is the one who will deliver the summons
to the prisoner, and be the one to prepare the return of service
of summons for the court, within five days from the time he
served the summons to the prisoner.
Judge Q: The one who is actually making the personal service
is the jail warden designated as the special sheriff.
Section 9. Service consistent with international
conventions. – Service may be made through methods
which are consistent with established international
conventions to which the Philippines is a party.
Judge Q: That is why I’ve been reminding you about the
Hague conventions. This court (my court) has not yet have
the occasion to apply this particular type of service. We will
take that up later when we are done about the discussion for
each section.
Administrative Order 251-2020 (Guidelines on the
Implementation in the Philippines of The Hague Service
Convention on the service abroad of judicial documents in civil
and commercial matters)
The Hague Service Convention establishes a streamlined
transmission of judicial and extrajudicial documents from One
State Party to Another, and provides transnational litigants
with methods for the service of documents abroad, simplifies
and expedites the service of documents abroad, and
guarantees that service will be brought to the notice of the
recipient in sufficient time.
Sec. 2. The Hague Service Convention shall apply in the
Philippines, provided the following conditions are present:
a. A document is to be transmitted from one State party
for service to another state party
b. The address of the intended recipient in the receiving
state party is known
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
c. The document to be served is a judicial document
and
d. The document to be served relates to a civil or
commercial matter.
Sec 3. Grounds for Objecting to Requests- The Central
Authority may decline the request for service if it does not
comply with the provisions of the Hague Service Convention,
or when compliance with the request would infringe upon its
sovereignty or security.
Service
The transmission and formal delivery of documents that is
legally sufficient to charge the defendant with notice of a
pending action; Provided, that it shall not be interpreted to
comprise substantive rules relating to the actual service of
process, nor shall it determine the conditions or formalities of
that service.
Model Form
Refers to the form annexed to the Hague Service Convention
consisting of three parts:
1. Request for service, which is sent to the Central
Authority of the Requested State seeking assistance
in the service of documents
2. Certificate, which confirms whether or not the
documents have been served
3. Summary of the Document to be Served which is
delivered to the addressee and preceded by a
Warning relating to the legal nature, purpose and
effects of the document to be served.
Note: The Rules of Court, as amended, and other pertinent
laws and rules, shall apply suppletorily to the Guidelines.
Application
Upon motion for leave of court of a party in a civil or
commercial proceeding, the court shall determine whether
extraterritorial service through the Hague Service Convention
is necessary, in accordance with Rules 13 and 14 of the Rules
of Court, as amended. The motion shall be accompanied, in
duplicate, by the following documents:
a. A copy of the Model Form, including the Request,
Certificate, Summary of Documents to be Served and
Warning
b. The original documents to be served or certified true
copies thereof, including all annexes
c. Certified translations of the Model Form and all
accompanying documents, where necessary
d. An undertaking to pay in full any fees associated with
the service of the documents and
e. Any other requirements of the requested state,
taking into account its reservations, declarations and
notifications, which may be found in the HCCH
website
Order granting extraterritorial service
If the court finds that the extraterritorial service under the
Hague Convention is warranted, it shall issue an order to that
effect. The Order shall include a directive to the requesting
party to procure and submit a prepaid courier pouch which
shall be used for the transmission of documents from the court
to the Central Authority of the Requested State.
Section 10. Service upon minors and incompetents. –
When the defendant is a minor, insane or otherwise an
incompetent person, service of summons shall be made upon
him or her personally and on his or her legal guardian if he or
she has one, or if none, upon his or her guardian ad litem
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whose appointment shall be applied for by the plaintiff. In the
case of a minor, service shall be made on his or her parent or
guardian.
Note: In case of an incompetent, summons shall be served
upon the incompetent person AND to this legal guardian, or
in the case of a minor, it shall be served to the parents, who
are also the legal guardians of the minors.
Judge Q: No major change except those gender equal terms.
Section 11. Service upon spouses. – When spouses are
sued jointly, service of summons should be made to each
spouse individually.
Note: In case the husband and wife are sued jointly, summons
must be served to each of them individually. Each of them
must be given a copy of the summons.
Section 12. 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 of the corporation wherever
they may be found, or in their absence or unavailability, on
their secretaries.
If such service cannot be made upon any of the foregoing
persons, it shall be made upon the person who customarily
receives the correspondence for the defendant at its principal
office.
In case the domestic juridical entity is under receivership or
liquidation, service of summons shall be made on the receiver
or liquidator, as the case may be.
Should there be a refusal on the part of the persons above-
mentioned to receive summons despite at least three (3)
attempts on two (2) different dates, service may be made
electronically, if allowed by the court, as provided under
Section 6 of this Rule.
Judge Q: Take note personal service may be made on any of
these officers and the enumeration is exclusive. Branch
manager is not general manger so these persons are exclusive
and exhaustive. But in the last part, in their absence, it may
be made on their secretaries. If it cannot be served on that
particular officer, it may be served upon any person who
customarily receives the correspondence for the defendant at
its principal office.
If naa na syas receiver or liquidator. Take note, only those
juridical entity under receivership or liquidation, if there is a
sanction for receivership, it must be in accordance with the
law. Should there be refusal on the part of the persons, this is
personal service. Service may be made electronically if
allowed by the court so this is quite different with respect to -
-hang on let me backtrack--ordinary service of summons---
those who are not juridical entities. If there is failure to effect
personal service, pwede substituted service, last one being
electronic mail. Now with regard to corporate entities, with
failure to serve, the rules provide that the substituted service
may be made electronically as provided under sec 6 of this
rule. This is convenient on the part of the court because there
is no need to serve personally.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
How is summons served upon a private juridical
person? Meaning a private corporation? Who can
receive summons for corporations?
If the defendant is a private corporation, the summons must
be served to the following officials:
1. President
2. Managing Partner
3. General Manager
4. Corporate Secretary
5. Treasurer
6. In-house Counsel
7. Their Secretaries
8. Any person who normally receives letters
Note: In the Old Rules, this is exclusive. These are the only
persons who can receive summons on behalf of a corporation.
If you served summons to other officers, the summons is not
properly served, and the service can be questioned.
Now, under the amendment, even the secretary of any of
these officers can receive summons for the corporation, but
only in the absence of these officers. So, if these officers
mentioned, if none of them is around, none of them can
receive the summons for the corporation, then, the summons
can be served on the secretary of any of them.
Or, it can even be served on any person in the company who
normally receives letters or communications. So, if we have
the overall secretary, or whoever is the person in charge of
receiving letters or communications, summons can be served
on any of them.
Section 13. Duty of counsel of record. – Where the
summons is improperly served and a lawyer makes a special
appearance on behalf of the defendant to, among others,
question the validity of service of summons, the counsel shall
be deputized by the court to serve summons on his or her
client.
Note: Where a lawyer appears in court to question the validity
of the service of summons on his client, the defendant, the
court can simply deputize his lawyer to serve the summons on
the defendant. Because remember, a lawyer is an office of the
court. So, if you tell the judge, “Your Honor, we cannot
proceed with this case because my client, the defendant, was
not properly served with summons.”- the judge can simply
say, “Okay, you who are a lawyer, are also an officer of the
court. Will you please serve this to your client, okay?”
And the judge will deliver the summons to the lawyer, and the
lawyer will be deputized to serve the summons. So, the
problem is solved.
Judge Q: Very interesting. If he questions/ makes an
appearance to the court because the basis is invalidity of the
service of summons, the counsel shall be deputized. Take note
of the word “shall”. Counsel shall be deputized to serve
summons on his client. This is convenient on the part of the
court rather than resorting or going back to square one
because the court might have overlooked the improper
service. Why? Because he is the best person to know the
whereabouts of the defendant. So what is the learning? Might
as well not file any pleading lest be deputized to serve
summons. That would be the best option anyway that is a new
revision. Very interesting coverage so I am anticipating these
particular provisions so I am anticipating this to be done in the
bar exams.
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Section 14. Service upon foreign private juridical
entit[ies]. – When the defendant is a foreign private juridical
entity which has transacted or is doing business in the
Philippines, as defined by law, 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, agents, directors or trustees within the Philippines.
If the foreign private juridical entity is not registered in the
Philippines, or has no resident agent but has transacted or is
doing business in it, as defined by law, such service may, with
leave of court, be effected outside 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 [D]epartment
of [F]oreign [A]ffairs;
(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;
(d) By electronic means with the prescribed proof of service;
or
(e) By such other means as the court, in its discretion, may
direct.
Note: As a general rule, a foreign corporation not doing
business here in the Philippines cannot be sued here. “Doing
business” does not refer to just one isolated transaction, but
to a series of transactions. If a foreign corporation is doing
business here, it can be sued through its agent or through a
government official designated by law to receive it.
Agent
If a foreign corporation is doing business here in the
Philippines, then service of summons can be done through its
agent. And if the service is served on its agent, then the period
to answer for that corporation is the same as that of an
ordinary defendant, and that is 30 days.
Government Officials Designated by Law
Summons can be coursed through a government official
designated by law to receive the summons for and in behalf
of these corporations.
Who are these officials?
It depends on the nature of the business of the foreign
corporation:
➢ Insurance business- Insurance Commissioner
➢ Banking- Central Bank Governor
➢ In any other business- DTI Secretary
Service upon a foreign corporation not registered in
the Philippines but is doing business in the Philippines
Service may, with leave of court, be effected outside the
Philippines through:
a. Personal service coursed through the court in the foreign
country with the assistance of the DFA
b. Publication once in a newspaper in the country where the
defendant resides
c. By facsimile
d. Electronic means with proof of service
e. Other such means as the court may direct
Service of Summons by the Plaintiff
When service of summons may be done by the plaintiff:
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
a. In case of failure of service of summons by the sheriff,
the court may authorize the plaintiff to serve the
summons together with the sheriff
b. In case the summon shall be served outside the judicial
region of the court that issued it
c. If the summons is returned without being served on any
defendant, the court may order the plaintiff to serve by
other means.
Modes of Service
1. Personal Service
a. It is effected by handing a copy thereof to the
defendant in person, and if he refuses to receive and
sign,by tendering it to him.
2. Substituted Service
a. By leaving copies of the summons at the defendant’s
residence with some person of suitable age and
discretion then residing therein
b. By leaving the copies at the defendant’s office or
regular place of business with some competent
person in charge thereof
c. By giving the summons to any homeowner’s
association officers, or condominium corporation
d. By electronic mail, if allowed by court.
3. Service by publication
a. Secs. 14, 15 and 16
b. If the service of summons is done through
publication, then the defendant must be given not
less than 60 days to file an answer. It’s up to the
court if they give the defendant 70 days or 80 days
to answer, that’s up to the discretion of the court.
But it must not be less than 60 days.
Section 15. Service upon public corporations. – When
the defendant is the Republic of the Philippines, service may
be effected on the Solicitor General; in case of a province, city
or municipality, or like public corporations, service may be
effected on its executive head, or on such other officer or
officers as the law or the court may direct.
Note: Now, if the defendant is a public corporation, summons
can be served on the public official who is in-charge of the
corporation, like the President or the general manager.
If the defendant is the Republic of the Philippines, service may
be effected on the Solicitor General.
Service upon an unincorporated government agency
Jurisprudence instructs that when a suit is directed against an
unincorporated government agency, which, because it is
unincorporated, possesses no juridical personality of its own,
the suit is against the agency’s principal, i.e., the State.
Section 16. 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 or her whereabouts are unknown and cannot be
ascertained by diligent inquiry, within ninety (90) calendar
days from the commencement of the action, service may, by
leave of court, be effected upon him or her by publication in
a newspaper of general circulation and in such places and for
such time as the court may order.
Any order granting such leave shall specify a reasonable time,
which shall not be less than sixty (60) calendar days after
notice, within which the defendant must answer.
Note: Now, if service has to be done to a defendant is
unknown, service will be done through publication.
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attached within the Philippines, service may, by leave of court,
Summary be effected out of the Philippines by personal service as under
Defendant How Service of Summons is [S]ection [5]; or as provided for in international conventions
Made to which the Philippines is a party; or by publication in a
Entity without juridical Service shall be made: newspaper of general circulation in such places and for such
personality (1) On the manager of time as the court may order, in which case a copy of the
the entity summons and order of the court shall be sent by registered
(2) On each of the mail to the last known address of the defendant, or in any
owners of the other manner the court may deem sufficient. Any order
entity, if known granting such leave shall specify a reasonable time, which
Prisoners Service shall be made to the shall not be less than sixty (60) calendar days after notice,
jail warden, who must within which the defendant must answer.
prepare a return of service
of summons within 5 days Extraterritorial Service of Summons
from actual service to the Extraterritorial service of summons is proper only in four
prisoner. instances namely:
Minor or incompetent If incompetent: a. When the action affects the personal status of the
1. The incompetent plaintiffs
himself and b. When the action relates to, or the subject of which
2. His/her legal is, property within the Philippines, in which the
guardian defendant has or claims a lien or interest, actual or
If minor: On his parents contingent
Spouses who are sued Each of them must be c. When the relief demanded in such action consists,
jointly served with summons wholly or in part, in excluding the defendant from
individually. any interest therein
Defendant whose identity is Service may be done d. When the property of the defendant has been
unknown. through publication. attached within the Philippines
Public corporation On the officer-in-charge of
the corporation When the defendant cannot be found, or is outside the
country, summons may be served by:
Service of Summons by Publication a. Personal service;
Publication is notice to the whole world that the proceeding b. Publication, only if:
has for its object to bar indefinitely all who might be minded a. The case affects the personal status of the plaintiff
to make an objection of any sort against the right sought to b. It involves a property within the Philippines, in which
be established. It is the publication of such notice that brings defendant has a claim, interest or lien
the whole world as a party in the case and vests the court with c. The property of the defendant has been attached
jurisdiction to hear and decide it. c. In any manner the court may deem sufficient

When allowed: Personal Service

1. In any action where the defendant designated is an
unknown owner, or the like; or whenever his
whereabouts are unknown and cannot be
ascertained by diligent inquiry. Within 90 days from
commencement by action, and by leave of court
2. When the defendant does not reside and is not found
in the Philippines, and the action affects the personal
status of the plaintiff; or relates to or the subject of
which is property within the Philippines in which the
defendant has or claims a lien or interest; or the
property of the defendant has been attached within
the Philippines
3. Any action 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 by publication.
If the plaintiff is very rich and he can afford to buy a ticket for
the sheriff to go to the United States and serve the summons
personally, well and good. That’s fine.
In Any Matter the Court may Deem Sufficient
Service of summons by personal service on a non-resident
defendant is not allowed. Service of summons by mail is not
allowed. However, if the summons was sent abroad, but was
actually received by the defendant, then the service will be
considered substantial compliance with the rules.
Requisites for Extraterritorial service of summons
1. The defendant is a nonresident
2. He is not found in the Philippines
3. The action against him is either in rem or quasi in
rem.

Note: The present rule expressly states that summons by
publication applies “in any action where the defendant is
designated as an unknown owner, etc.
Section 17. Extraterritorial service. – When the
defendant does not reside and is not found in the Philippines,
and the action affects the personal status of the plaintiff or
relates to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding the defendant from
any interest therein, or the property of the defendant has been
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Section 18. Residents temporarily out of the
Philippines. – 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
[S]ection.
Section 19. Leave of court. – Any application to the court
under this Rule for leave to effect service in any manner for
which leave of court is necessary shall be made by motion in
writing, supported by affidavit of the plaintiff or some person
on his [or her] behalf, setting forth the grounds for the
application.
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Section 20. Return. – Within thirty (30) calendar days from
issuance of summons by the clerk of court and receipt thereof,
the sheriff or process server, or person authorized by the
court, shall complete its service. Within five (5) calendar days
from service of summons, the server shall file with the court
and serve a copy of the return to the plaintiff’s counsel,
personally, by registered mail, or by electronic means
authorized by the Rules.
Should substituted service have been effected, the return shall
state the following:
(1) The impossibility of prompt personal service within a
period of thirty (30) calendar days from issue and receipt of
summons;
(2) The date and time of the three (3) attempts on at least
two (2) different dates to cause personal service and the
details of the inquiries made to locate the defendant residing
thereat; and
(3) The name of the person at least eighteen (18) years of
age and of sufficient discretion residing thereat, name of
competent person in charge of the defendant’s office or
regular place of business, or name of the officer of the
homeowners’ association or condominium corporation or its
chief security officer in charge of the community or building
where the defendant may be found.
Return of Service of Summons
This refers to the report of the sheriff to the court that he has
already served the summons.
The sheriff must describe how the summons was served. If it
was personally served on the defendant, the return of service
must specify: (1) when it was served to the defendant, and
(2) where.
If done via substituted service of summons:
1. The name of the person who received the summons
at the resident of the defendant
2. When the summons was served
3. That the substituted service of summons was
resorted to because he could not locate the
defendant despite several attempts
4. That he made at least three attempts on two
separate dates to serve the summons personally on
the defendant, but failed, so that’s why he resorted
to substituted service.
Section 21. 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
or her deputy.
If summons was served by electronic mail, a printout of said
e-mail, with a copy of the summons as served, and the
affidavit of the person mailing, shall constitute as proof of
service.
Judge Q: This one is very important because it must be
established that there was a successful or valid service of
summons in order for the court to acquire jurisdiction. Cannot
overemphasize this point because many cases ruled by the SC
have established that there must be strict compliance of the
Rules and the fact that there is merely a substantial
compliance will not suffice because we are talking about
acquiring jurisdiction over the person of the defendant so the
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
rules must be observed to the letter. In fact, in one case, the
principle of regularity in the performance of official functions
will not be totally applicable if there is sufficient evidence that
the rules have not been complied with meaning you cannot
hide under the cloak of substantial compliance because we are
talking about jurisdiction. That is why the rules is explicit that
in the return, all of these must be mentioned. Anything short
of these will invalidate the service of summons and what is
the effect? The defendant can move for the dismissal of the
case based on lack of jurisdiction.
Section 22. Proof of service by publication. – If the
service has been made by publication, service may be proved
by the affidavit of the publisher, 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 or her last known address.
Note: Proof of service of summons shall be made:
1. In writing by the server
2. Set forth the manner, place and date of service
3. Specify any papers which have been served with the
process
4. Name of the person who received the same
5. Shall be sworn when made by a person other than a
sheriff or the sheriff’s deputy
If through publication: The editor-in-chief will execute an (1)
affidavit of publication and then (2) you attach a newspaper
copy where the publication of the summons appeared
If through electronic mail:
1. A print out of the email
2. Copy of the summons as served
3. Affidavit of the person mailing
Section 23. 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 be deemed a voluntary appearance.
Judge Q: I want you to take note of this also. Section 23 now
says, there is now a shift of policy. Under the old rules,
“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.” Even if the defendant
thru counsel files a pleading, particularly a motion to dismiss
citing several grounds including lack of jurisdiction over the
person, the same shall not be considered a voluntary
appearance. BUT under the new rules, it is very different, the
exact opposite. “The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the person of the
defendant shall be deemed a voluntary appearance.” So one
should be very careful. So what does this imply? This is a
departure from the ruling in La Naval v CA. Now, if he files a
motion to dismiss and includes therein other grounds, then it
is deemed a voluntary appearance so when can we say that
there is no voluntary appearance? Only when he files a motion
to dismiss based on lack of jurisdiction over the person of the
defendant as a sole ground so there is now a shift of the
policy. Because probably, to the mind of the Committee, when
you file a pleading and it includes other issues, it clearly
indicates that you want the court to address other issues
surrounding or related to the case. It would be a clear
indication that you want to submit yourself to the jurisdiction
of the court. You want to avail of the processes and perhaps
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that’s the reason why there is a dramatic shift in the policy so
forget the rulings of the court with respect to the filing of a
motion because it will be considered a voluntary appearance.

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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RULE 15. MOTIONS Pleading Motion
Purpose is to submit a claim Purpose is to apply for an
Section 1. Motion defined. – A motion is an application for or defense for appropriate order not included in the
relief other than by a pleading. judgment judgment
May be initiatory Can never be such as it is
Judge Q: Technically, a motion can also be classified as a filed in a case that is already
pleading but if the purpose of a pleading is other than an pending in court
application for relief, then it is considered as a regular pleading Always filed before May be filed after judgment
(?) so a motion is a special pleading wherein a party is asking judgment
for relief from the court. It is important to know the Only 9 kinds of pleadings Only three motions which
fundamentals or rudiments of assigning or denominating your while any application for a actually seek judgment
pleading as a motion. You must remember that you must see relief other a judgment can
to it that there is a prayer. That is the primary rule you must be made in a motion
observe. It is quite astonishing to see other lawyers that, Must be written May be oral when made in
going to file a pleading with a name other than a motion, for open court or in the course
instance, manifestation, so when we designate a pleading as of a hearing or trial
something other than a motion, then one would not expect to Generally states substantial Not a pleading, even when
apply for relief. But more often than that if he designates it as questions reduced to writing. It
such other than a motion, and yet includes a prayer, then generally relates to
technically, what he his filing is a motion so it’s quite important procedural matters
that you should be forthright in filing a pleading. If you’re filing Not an independent remedy
a pleading with a relief, then it is a motion so it is crucial for and thus cannot replace an
you to designate the pleading as a motion. action to enforce a legal
right
Motions in general
1. Motion ex parte- One which does not require that the Section 2. Motions must be in writing. – All motions shall
parties be heard and which the court may act upon be in writing except those made in open court or in the course
without prejudicing the rights of the other party. It is a of a hearing or trial.
motion made without the presence of a notification to the
other party because the question generally presented is A motion made in open court or in the course of a hearing or
not debatable. Sometimes this kind of motion may be
trial should immediately be resolved in open court, after the
granted as when the motion asks for the correction of an adverse party is given the opportunity to argue his or her
evidently misspelled word, or obvious error in addition, or opposition thereto.
subtraction of an amount, or when a clarification is
sought, or when the motion is one for extension of one When a motion is based on facts not appearing on record, the
or two days within which to file a pleading. court may hear the matter on affidavits or depositions
2. Litigated motion- One where notice to the adverse party presented by the respective parties, but the court may direct
is necessary to afford the latter an opportunity to resist that the matter be heard wholly or partly on oral testimony or
the application. It is one which is the opposite of a motion
depositions.
ex parte, hence, one made with notice to the adverse
party so that an opposition thereto may be made, such Judge Q: The most common motion orally made is a motion
as one where the court is requested by an administrator to exclude or strike out a particular testimony. There are
of an estate to allow sale of certain properties at certain certain motions that can be made right then and there while
prices. the hearing is ongoing so as a rule, all motions shall be in
3. Motion of course- a motion for a certain kind of relief or writing except those made in open court. Now, if you compare
remedy to which the movant is entitled as a matter of it to the old provision, Sec. 2 has additional paragraphs.
right, and not as a matter of discretion on the part of the
court. Moreover, the allegations contained in such a Second paragraph is in keeping with the reasons for
motion do not have to be investigated or verified. An practicality so when a motion is orally made, judge is expected
example would be a motion filed out of time, because this to render a resolution right there and then. Of course, after
motion may be disposed of the court on its initiative. giving the other party an opportunity to argue particularly to
Another example would be a motion to sell certain make known his position.
property after the period given by the court to the debtor
to pay has elapsed, and such previous order had specified Third paragraph- take note that the subject matter of the
that the property be sold in case of default. motion is based on facts not appearing on record so probably
4. Special motion- the opposite of a motion of course, here the issue being raised is not one of those factual allegations
the discretion of the court is involved; moreover, usually raised in the pleading so it is something new being brought to
an investigation of the facts alleged is re quired. the attention of the court. So in order for the court to take
5. Omnibus motion- a motion which in broad sense cognizance of said motion, he may direct the parties to hear
combines different motions all filed at the same time the matter based on the affidavits or depositions presented by
either to save time or for convenience. In a strict sense, the respective parties and in addition, he may direct the
it is a motion attacking a proceeding, and containing all matter to be heard wholly or partly on a hearing or oral
the objections available at said time because all deposition. As a rule, if the court will call for a hearing, he may
objections not so included shall be deemed waived.
consider the affidavits or depositions but he may also require
6. Motion to dismiss (Rule 16, deleted) to present oral testimonies in order for the court to fully
appreciate the issues fully presented to aid the court so there
is now a requirement for the parties to conduct a hearing on
affidavits or depositions.

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
CIVPRO |
Section 3. Contents. – A motion shall state the relief sought
to be obtained and the grounds upon which it is based, and if
required by these Rules or necessary to prove facts alleged
therein, shall be accompanied by supporting affidavits and
other papers.
Requisites for a valid motion
1. It must be in writing (Sec.2) except in open court.
a. Innovation in the 2019 amendment. When a
motion is made in open court, it must be
resolved immediately by the court, right then
and there. This will prevent unnecessary delay
because some judges will just say “just put that
in writing” so dugay pa ma resolve. Now, the
amendment requires that the judge should be
firm and knowledgeable of the rules so he can
immediately resolve an oral motion in open
court
2. Contents (Sec. 3)
a. Must contain the relief sought for, the grounds
upon which it is based and the laws that back it
up.
b. If required by the Rules or necessary to prove
facts alleged therein, shall be accompanied by
supporting affidavit and other papers.
3. Hearing a litigious motion is discretionary on the court.
Is it necessary that a motion be accompanied by
supporting affidavits and other papers?
No, unless required by the Rules or necessary to prove facts
alleged therein.
[Section 4. Hearing of motion. – Deleted]
Judge Q: If you notice, Section 4 is different. It is quite
necessary to point this out since this is already deleted
because as a rule, a motion may not be heard in open court
but there are instances where a hearing may be conducted.
That is the old rule. Section 4 of the New Rules gives us the
first classification of motions known as non-litigious motions.
Section 4. Non-litigious motions. – Motions which the
court may act upon without prejudicing the rights of adverse
parties are non-litigious motions. These motions include:
a) Motion for the issuance of an alias summons;
b) Motion for extension to file answer;
c) Motion for postponement;
d) Motion for the issuance of a writ of execution;
e) Motion for the issuance of an alias writ of execution;
f) Motion for the issuance of a writ of possession;
g) Motion for the issuance of an order directing the sheriff to
execute the final certificate of sale; and
h) Other similar motions.
These motions shall not be set for hearing and shall be
resolved by the court within five (5) calendar days from receipt
thereof.
Judge Q: There is a reason why there is this classification.
These are not material issues or will not prejudice the right of
the opposing party. Most of these remedies call for the
exercise of the residual power of the court. Meaning residual,
there are certain actions needed to be done by the court post-
judgment when everything has been solved post-finality. The
purpose of classifying it as non-litigious is because there is no
more hearing to be conducted. The issues involved are not
quite complicated so there is no need for a longer period to
weigh on the issues involved.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Section 5. Litigious motions. – (a) Litigious motions
include:
1) Motion for bill of particulars;
2) Motion to dismiss;
3) Motion for new trial;
4) Motion for reconsideration;
5) Motion for execution pending appeal;
6) Motion to amend after a responsive pleading has been filed;
7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of demolition;
9) Motion for intervention;
10) Motion for judgment on the pleadings;
11) Motion for summary judgment;
12) Demurrer to evidence;
13) Motion to declare defendant in default; and
14) Other similar motions.
(b) All motions shall be served by personal service, accredited
private courier or registered mail, or electronic means so as to
ensure their receipt by the other party.
(c) The opposing party shall file his or her opposition to a
litigious motion within five (5) calendar days from receipt
thereof. No other submissions shall be considered by the court
in the resolution of the motion.
The motion shall be resolved by the court within fifteen (15)
calendar days from its receipt of the opposition thereto, or
upon expiration of the period to file such opposition.
Note: If the other party wants to answer a motion, he must
answer it within 5 days and the court will resolve that within
15 days from the receipt of the opposition/comment.
Judge Q: There’s a need for the other party to protect his
pending rights. What’s the significance of classifying them? All
motions require for the court to properly evaluate and allow
the other party to file his opposition or present his arguments
against the relief being prayed for in said motion.
Letter B is very important for these type of motions. This
particular type of motions is considered litigious so the other
party will be given the opportunity to present his side so it is
a requirement that he must be served properly with a copy of
his motion.
Now, the next one is quite innovative on the part of the
amendments. The judges have noticed that once there is a
motion filed, that would be the beginning of a series of
pleadings. Once the movant (the one who will file a motion),
the action of the other party is to file a claim. Since he is going
to present his arguments, the movant also wants to refute the
arguments of the opposition. And after giving a reply, the
attitude of a party is, he must have the last say, that is why
he will file another pleading in answer to the reply, i.e.
rejoinder. That is an endless exchange of pleadings and will
somehow add to the burden of the court in reading those
pleadings. It is quite burdensome on the part of the court. So
in order to correct this practice, to spare the court, the new
rules is quite strict on this matter that once a motion is filed,
the only pleading to be allowed after the filing of the motion
is the opposition of the opposing party and he should file his
opposition within 5 calendar days from receipt thereof. The
rule seems to be stringent even if it involves voluminous
documents, perhaps a motion will attach documents
irregardless of the voluminous nature of said motion, the rule
only requires the opposing party to file his opposition to said
motion within 5 calendar days from receipt thereof. After the
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filing, no other submission shall be considered by the court.
No other pleading is allowed so only until the opposition.
Now, when do we start counting? From receipt thereof. The
old practice is to wait for the order of the court to take note
of the filing and directing the party to file his opposition. Now,
the rule is strict that once a motion is filed and there is proof
of service, then the 5 day period should start from the day the
copy was served to him so there is no longer any need for the
court to direct to the opposing party to make his comment.
The only thing the court will wait is the filing of the opposition
or the expiration of the period. This is the solution of the old
habit of lawyers. They have become very crafty in even
designating their pleadings because of the different exchange
of documents, one after the other.
Section 6. Notice of hearing on litigious motions;
discretionary. – The court may, in the exercise of its
discretion, and if deemed necessary for its resolution, call a
hearing on the motion. The notice of hearing shall be
addressed to all parties concerned, and shall specify the time
and date of the hearing.
Judge Q: Is there a notice of hearing that must be observed?
That is no longer required. So take note, with respect to
litigious motions, notice of hearing is not a requirement. It is
not mandatory but only discretionary. The court may call a
hearing if he finds it necessary.
Notice of hearing
The written motion and the notice of hearing thereof shall be
served in such a manner as to ensure its receipt by the other
party. The notice for hearing shall be addressed to all the
parties concerned. It shall also specify the time and date of
the hearing.
Section 7. Proof of service necessary. – No written
motion shall be acted upon by the court without proof of
service thereof, pursuant to Section 5(b) hereof.
Judge Q: The movant is also required to present proof of
service. That is why no written motion shall be acted upon by
the court without proof of service.
Section 8. Motion day. – Except for motions requiring
immediate action, where the court decides to conduct hearing
on a litigious motion, the same shall be set on a Friday.
Note: Is usually on a Friday afternoon, or if Friday is a non-
working day, in the afternoon of the next working day.
Judge Q: The rule sets that it should always be on a Friday,
does not specify when as long as it is a Friday.
Section 9. Omnibus motion. – Subject to the provisions of
[S]ection 1 of Rule 9, a motion attacking a pleading, order,
judgment, or proceeding shall include all objections then
available, and all objections not so included shall be deemed
waived.
Note: It is a motion that contains several grounds as basis.
The rule is that if you file a motion in court such as a motion
to dismiss, you have to state all the grounds available to you.
You must not present a piece-meal. Otherwise, those grounds
that were not included in your motion will no longer be
entertained by the court.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
The word “omnibus” means “all embracing or all
encompassing.” An omnibus motion is one attacking a
pleading, order, judgment or a proceeding which shall include
all objections then available and objections not so included
shall not be deemed waived.
The rule is a procedural principle which requires that every
motion that attacks a pleading, judgment, order or
proceedings shall include all grounds then available, and all
objections not so included shall be deemed waived. Since the
rule is subject to the provisions of Sec. 1 , Rule 9, the
objections mentioned therein are not deemed waived even if
not included in the motion. These objections are: (1) that the
court has no jurisdiction over the subject matter, (2) that
there is another action pending between the same parties for
the same cause, (3) that the action is barred by a prior
judgment and (4) that the action is barred by the statute of
limitations.
A motion to dismiss is a typical example of a motion subject
to omnibus motion rule, since a motion to dismiss attacks a
complaint which is a pleading (note: no more motion to
dismiss)
Judge Q: Those that are matters that are considered as
grounds for dismissal, grounds, objections or attacking a
pleading shall be set forth in a motion and those not so
included shall be deemed waived. A motion shall include all
objections then available.
Exceptions to this, under Sec. 1, Rule 9, lack of jurisdiction
over the subject matter, litis pendentia, res judicata and
prescription.
Section 10. Motion for leave. – A motion for leave to file a
pleading or motion shall be accompanied by the pleading or
motion sought to be admitted.
Note: A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be
admitted. If not accompanied by the pleading, the court will
not act on the motion.
If the motion is a motion for leave of court to file an amended
complaint or a motion for leave of court to file a supplemental
pleading, the rules now provide that such motion shall be
accompanied by the pleading so to be admitted. If not
accompanied by the pleading, the court will not act on the
motion.
Judge Q: For instance, motion for leave to file a complaint in
intervention so when you file a motion for leave, you must
also attach a copy of your complaint in intervention. Another
common example is demurrer to evidence. When you file a
motion for leave to submit demurrer to evidence, you must
also attach a copy of your demurrer. That is a requirement
because you are asking the court to suspend proceedings. And
then in order for the court to properly evaluate to grant the
leave, you must also indicate why it is important, because you
have an important prayer either to amend, or file a complaint
in intervention or demurrer to evidence. I hope you take note
of this because this one is often disregarded or overlooked by
practitioners.
Section 11. Form. – The Rules applicable to pleadings shall
apply to written motions so far as concerns caption,
designation, signature, and other matters of form.
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Note: Same with form of pleading. There is a caption, body,
prayer or relief and the date and time. Whatever is the caption
of the main case, it shall also be the caption of the motion.
Judge Q: There must also be a format to be followed but most
of the courts will not be too strict about this as long as the
substance is expressed in an explicit manner.
Section 12. Prohibited motions. – The following motions
shall not be allowed:
(a) Motion to dismiss except on the following grounds:
1) That the court has no jurisdiction over the subject matter
of the claim;
2) That there is another action pending between the same
parties for the same cause; and
3) That the cause of action is barred by a prior judgment or
by the statute of limitations;
(b) Motion to hear affirmative defenses;
(c) Motion for reconsideration of the court’s action on the
affirmative defenses;
(d) Motion to suspend proceedings without a temporary
restraining order or injunction issued by a higher court;
(e) Motion for extension of time to file pleadings, affidavits or
any other papers, except a motion for extension to file an
answer as provided by Section 11, Rule 11; and
(f) Motion for postponement intended for delay, except if it is
based on acts of God, force majeure or physical inability of
the witness to appear and testify. If the motion is granted
based on such exceptions, the moving party shall be warned
that the presentation of its evidence must still be terminated
on the dates previously agreed upon.
A motion for postponement, whether written or oral, shall, at
all times, be accompanied by the original official receipt from
the office of the clerk of court evidencing payment of the
postponement fee under Section 21(b), Rule 141, to be
submitted either at the time of the filing of said motion or not
later than the next hearing date. The clerk of court shall not
accept the motion unless accompanied by the original receipt.
Judge Q: Next classification is prohibited motions. Those
which are not to be filed. If filed, these will be a mere scrap
of paper. They will not be entertained.
No need to move for hearing on affirmative defenses since the
court must resolve it without a need for prayer or motion by
the parties. Motion for reconsideration per se is not a
prohibited pleading. But if the court action is adverse
specifically to the affirmative defenses, no motion for
reconsideration is allowed.
Prohibited Motions
1. Motion to Dismiss, except:
a. Lack of jurisdiction over the subject matter
b. Litis pendentia
c. Res judicata
d. Prescription
2. Motion to hear affirmative defense
a. In the former rules, you may ask the court to hear
first the affirmative defenses. If the court is
convinced on the validity of your affirmative
defense, the court can dismiss the case. But now, if
your affirmative defenses incorporated in your
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
answer is not based on any of the four grounds
mentioned here, the court can right away resolve
the affirmative defenses without you asking for a
hearing. There will no longer be a trial on the merits
of the case.
3. Motion for reconsideration of the court’s action on the
affirmative defense
a. If the court dismissed the complaint for the reason
that it is clear from the allegations of the complaint
that it does not state a cause of action, can the
plaintiff file a motion for reconsideration? NO. What
if the court dismissed it based on improper venue,
can you file a motion for reconsideration? NO
4. Motion to suspend proceedings without TRO or Injunction
issued by the higher court
a. You cannot anymore ask the court to suspend the
proceeding if there is no TRO or PI issued by the
higher court. That is one way of removing dilatory
tactics.
5. Motion for extension of time to file pleadings, affidavits
or any other papers, except a motion for extension to file
an answer.
a. The only pleading that you can ask for an extension
of time to file is the Answer.
b. Under the new Rules, only one motion for extension
is allowed.
6. Motion for postponement intended for delay, except if it
is based on acts of God, force majeure or physical inability
of the witness to appear and testify. If the motion is
granted based on such exceptions, the moving party shall
be warned that the presentation of its evidence must still
be terminated on the dates previously agreed upon.
a. Motion for postponement is allowed only on two
grounds:
i. Force majeure
ii. Physical inability of the witness to appear- it
should be supported with a medical certificate
which is subscribed and sworn to before a notary
public.
b. Payment of motion for postponement fee- When
you ask for postponement, you have to pay a fee
(P100 with the clerk of court). Attach the receipt to
the motion for postponement.
Judge Q: All types of motion for postponement is prohibited
except if they are based on the grounds of force majeure, acts
of God or physical inability. If there are five trial dates for the
plaintiff, can he ask to present for five trial dates still? No
more. He only has 4 trial dates left.
Section 13. Dismissal with prejudice. – Subject to the
right of appeal, an order granting a motion to dismiss or an
affirmative defense that the cause of action is barred by a
prior judgment or by the statute of limitations; that the claim
or demand set forth in the plaintiff’s pleading has been paid,
waived, abandoned or otherwise extinguished; or that the
claim on which the action is founded is unenforceable under
the provisions of the statute of frauds, shall bar the refiling of
the same action or claim.
1. Res judicata
2. The claim has already been paid, waived, or
abandoned or extinguished
3. Claim is unenforceable under the statute of frauds.
Effect
Cannot be re-filed but it is subject to appeal.
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This means that if the ground for dismissal is other than these
three, then the dismissal is without prejudice to the refiling.
What are the other grounds for dismissal?
a. Lack of jurisdiction over the subject matter
b. Improper venue
c. Lack of legal capacity to sue
d. Failure to state cause of action
e. Failure to comply with a condition precedent
Judge Q: When there is dismissal with prejudice, a party will
no longer be allowed or given the right to file the same type
of case based on said grounds as mentioned under this
Section.
Before we end the discussion on motions, we have to take
note of a pro-forma motion. What is this?
Pro-forma motions
A pro forma motion is one which does not satisfy the
requirements of the rules and one which will be treated as a
motion intended to delay the proceedings.
It is a motion which does not comply with the Rules and is
considered as one filed merely to delay the proceedings. It is
not entitled to judicial cognizance and does not stop the
running of the period for filing the requisite pleading so if it is
a pro-forma motion, then it has no legal effect. That is very
crucial for instance for purposes of filing a timely appeal. If
one files a motion for reconsideration, it will stop the
reglementary period so for instance in a regular appeal, the
losing party can file an appeal within 15 days but if he files a
motion for reconsideration, it will stop the running of the
reglementary period. But if it turns out that the MR is classified
as a pro-forma motion, then the filing of the motion will not
stop the running of the period. That’s why it’s important to
know whether a pleading is pro-forma. One that does not
comply with the rules on motions. Otherwise, it has no legal
effect.
Rule 12. BILL OF PARTICULARS
Judge Q: Bill of particulars is a special motion which the rules
treat specially because an entire rule is devoted on the
procedure.
Section 1. When applied for; purpose. – Before
responding to a pleading, 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 particularity, to
enable him or her properly to prepare his or her responsive
pleading. If the pleading is a reply, the motion must be filed
within ten (10) calendar days from service thereof. Such
motion shall point out the defects complained of, the
paragraphs wherein they are contained, and the details
desired.
Note: The period to file a motion refers to the period for filing
the responsive pleading in Rule 11. Thus, where the motion
for bill of particulars is directed to a complaint, the motion
should be filed within 15 days after service of summons. If the
motion is directed to a counterclaim, then the same must be
filed within 10 days from service of the counterclaim which is
the period provided for by Sec. 4, Rule 11 to answer a
counterclaim.
Judge Q: We have already discussed the manner of making
allegations and in making those, you must state it with
definiteness or particularity. Now, if a pleading fails to satisfy
the requirement of particularity, the remedy is a motion for
bill of particulars. But, one must also take note that when the
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
pleading does not sufficiently state a cause of action, the
remedy is a motion to dismiss for failure of cause of action so
you have to discern whether the proper remedy is a motion to
dismiss or motion for bill of particulars. Even if the allegations
are vague but nevertheless, able to make out specific grounds,
then the remedy of the motion to dismiss will turn out to be
unavailing so the remedy in case of vague statements is
through a motion for bill of particulars.
In order to understand, I have assigned you cases particularly
in the case of Virata v Sandiganbayan. The court said that it
is the office or function as well as the object or purpose of a
bill of particulars to amplify or limit a pleading. So the purpose
is really to make a detailed account or to limit the scope of the
subject of the pleading, specify more minutely or particularly
a claim or defense which is placed in general terms so that the
opposing party and the court will know as to the precise
nature, character, scope, and extent of the cause of action or
defense relied on by the pleader, and apprise the opposite
party of the case which he has to meet. It has also been stated
that it is the function or purpose of a bill of particulars to
define, clarify, particularize, and limit or circumscribe the
issues in the case, to expedite the trial, and assist the court.
The purpose is to make a refined version.
For instance, in a complaint for damages on the ground of
breach of contract and it is said that defendant must be made
liable for breach so there is no particular statement especially
when the contract contains numerous provisions. So which
particular term is he talking about? That is a very basic
example. Another example would be a collection case and the
complaint states that defendant has failed to honor his
monetary obligations. And it so happens, there are a lot of
monetary obligations so which one is he talking about?
And another purpose is in order for surprise to be avoided and
to help the opposing party in framing his answer so that he
could make an intelligent answer. What happened in this
case? *discusses case of Virata*
What is a bill of particulars?
A bill of particulars is a more definite statement of any manner
which is not averred with sufficient definiteness or particularity
in a pleading so as to enable the opposing party to prepare
his responsive pleading.
Note: It is the remedy of the answering party in case the
pleading of the other party is vague or not clearly worded.
Vague or ambiguous means susceptible to two or more
interpretations.
If you are the defendant and you found out that some
paragraphs in the complaint are very vague, do you have to
answer right away? No. You are not compelled to answer a
complaint that contains ambiguous statements or allegations.
IOW, the function of a bill of particulars is to clarify the
allegations in the pleading so an adverse party may be
informed with certainty of the exact character of a cause of
action or a defense. Without the clarifications sought by the
motion, the movant may be deprived of the opportunity to
submit an intelligent responsive pleading.
What is your remedy?
Your remedy is to file a Motion for Bill of Particulars. It is a
form of request by the defendant but addressed to the court
asking the court to order the plaintiff to particularize or clarify
some of the ambiguous statements in his complaint. The
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purpose is to allow the defendant to prepare intelligently his
answer to the complaint. `
Judge Q: What are the known instances where a bill of
particulars is allowed?
1. When the allegations are indefinite and uncertain that
the nature cannot be understood therefrom
2. When the allegations are so vague that they do not
appear therefrom in what capacity a party sues or is
issued
3. When the allegations are uncertain as to time, place,
quantity, title, person or any other matter required to
be pleaded with certainty
4. When the allegations are faulty in the application
setting out two grounds for a single claim
5. When denials are so indefinite and uncertain that it
cannot be understood what is being denied and what is
being admitted.
6. Particulars of details of computation of bank accounts
are allowed
7. Technicalities are frowned upon so technical terms must
be clearly explained and described
8. Conclusions of law such as defeat, machination, false
pretenses, misrepresentation and threats are
conclusions of law and mere allegations thereof without
a statement of facts is not sufficient
a. If you remember in the midterm exam, the remedy
was not a motion for bill of particulars but motion to
dismiss since it invoked the special jurisdiction of the
court, i.e. commercial court, but other than that, the
remedy is a bill of particulars.
Requirements for the motion
The motion shall point out the defects complained of, the
paragraphs wherein they are contained, and the details
desired.
Action by the Court
Section 2. Action by the court. – Upon the filing of the
motion, the clerk of court must immediately bring it to the
attention of the court, which may either deny or grant it
outright, or allow the parties the opportunity to be heard.
The court may:
➢ Deny the motion outright;
➢ Grant the motion outright;
➢ Hold a hearing on the motion.
Judge Q: As a rule, there is no requirement that said motion
should be heard by the court. And any action of the court
should not be grave abuse of discretion because it is
sanctioned by the court.
Section 3. Compliance with order. – If the motion is
granted, either in whole or in part, the compliance therewith
must be effected within ten (10) calendar 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.
Note: If the judge feels that the filing of the bill of particulars
is a dilatory tactic, the judge has the discretion to outrightly
deny if the court finds that there is no ambiguity. If the court
agrees with the defendant that there is ambiguity, it may allow
the parties to be heard and grant the motion for bill of
particular. The compliance must be effected within 10 days
from notice of the order unless a different period is fixed.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
The Bill of Particulars may be filed in two ways:
3. Separate pleading
4. Amended pleading
Judge Q: The minimum period is 10 calendar days unless the
court will give a longer period. The party may amend his
complaint to give a more detailed account or file a bill of
particulars as a separate pleading.
Effect of Non-Compliance
Section 4. Effect of non-compliance. – If the order is not
obeyed, or in case of insufficient compliance therewith, the
court may order the striking out of the pleading or the portions
thereof to which the order was directed [,] or make such other
order as it deems just.
Judge Q: The court has the authority to strike out the pleading
as a whole or only the portions to which the order was
directed. In the case of a plaintiff, the court may strike out his
complaint and would result in the dismissal of the case. In the
case of the defendant, his answer may be striked out and
would have the effect of making him in default because of his
failure to file within the time allowed so non-compliance could
be fatal. Also, the court has the authority to dismiss the case
for failure of the party or plaintiff to comply with his order
which is found in Section 3, Rule 17.
Effect of Filing of a Bill of Particulars
Section 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 or her motion, the
moving party may file his or her responsive pleading within
the period to which he or she was entitled at the time of filing
his or her motion, which shall not be less than five (5) calendar
days in any event.
Note: The filing of a bill of particulars stops or interrupts the
running of the period to file an answer. But, at least 5 days to
answer. (E.g. if you filed a Motion for Bill of Particulars on the
28th day, which means you have 2 days left), the rules say you
should have at least 5 days to answer.
Judge Q: As what we have said, the defendant is given 30
days to file an answer but once a motion for bill of particulars,
it will stay the period for him to file a responsive pleading. In
the event his motion is denied, the period will continue to run
after the denial but nevertheless, it should not be less than 5
calendar days so that’s the basis of the continuation of the
period in filing a responsive pleading.
Bill of Particulars Becomes Part of the Pleading
Section 6. Bill a part of pleading. – A bill of particulars
becomes part of the pleading for which it is intended.
The Bill of Particulars becomes part of the complaint.
Effect on the period to file a responsive pleading
A motion for bill of particulars is not a pleading; hence, not a
responsive pleading. Whether or not his motion is granted, the
movant may file his responsive pleading. When he files a
motion for BOP, the period to file the responsive pleading is
stayed or interrupted. After service of the bill of particulars
upon him or after notice of the denial of his motion, he may
file his responsive pleading within the period to which he is
entitled to at the time the motion for bill of particulars is filed.
If he has still eleven (11) days to file his pleading at the time
the motion for BOP is filed, then he has the same number of
days to file his responsive pleading from the service upon him
of the BOP. If the motion is denied, then he has the same
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number of days within which to file his pleading counted from
his receipt of the notice of the order denying his motion. If the
movant has less than five (5) days to file his responsive
pleading after service of the bill of particulars or after notice
of the denial of his motion, he nevertheless has five (5) days
within which to file his responsive pleading.
RULE 16. MOTION TO DISMISS
Provisions either deleted or transposed
Judge Q: The entire Rule 16 no longer exists but it didn’t mean
that motion to dismiss is no longer allowed. As what we’ve
learned, motion to dismiss can still be filed although it is a
prohibited pleading. As a review, Section 12 states that a
motion to dismiss is a prohibited except on the following
grounds: no jurisdiction over the subject matter, res judicata,
litis pendentia and statute of limitations. Are these the only
grounds that can be used for the dismissal of the action? That
is not exclusive because if you may recall in Rule 8, Section
12, you can raise affirmative defenses. This section talks about
grounds that can be cited in an affirmative defense which has
the effect of dismissing the action.
It’s better to first discuss Rule 6, 5 (b). What are the
affirmative defenses available? *reads the provision* these
are affirmative defenses that can be taken up in the course of
hearing but another set is those already enumerated under
the exceptions of using a motion to dismiss as a ground.
Now, let’s go back to Section 12, Rule 8. There are more
grounds. *reads provision* Failure to raise the affirmative
defenses at the earliest opportunity shall constitute a waiver
thereof. *proceeds to discuss Section 12, Rule 8.*
What is now the remedy if there is a denial of the affirmative
defense? If there is a denial based on the 5 affirmative
grounds, what is the remedy? Apparently, under the new
rules, under Rule 15, it is a prohibited pleading for a motion
for reconsideration of the court’s action of the affirmative
defense.
So what is the downside of citing a ground for dismissal as
one of the affirmative defenses. Let me be clear about this.
The defendant or the answering party has the option, for
instance: lack of jurisdiction over the subject matter; he has
two courses of action- he may include it in his affirmative
defense. However, he is not also prohibited to file a motion to
dismiss because it is not a prohibited motion. If he files a
motion to dismiss based on this ground, and it is denied, he
still has the remedy of filing a motion for reconsideration. The
rule apparently states that if he cites lack of jurisdiction over
the subject matter as one of his affirmative defense and it is
denied, can he still file a motion for reconsideration? The new
rules apparently prohibit him to do so because of paragraph
© Motion for reconsideration of the court’s action on the
affirmative defense is a prohibited pleading. So what is the
better strategy? If you have a ground (kato 4), then it’s better
for you to file a motion to dismiss rather than incorporate it as
one of the affirmative defenses. Why? Because a motion for
reconsideration is not considered a prohibited pleading.
As you can see, in litigious motions, motion for reconsideration
is allowed. Now, question is, there is a rule for raising that the
issue on lack of jurisdiction can be raised anytime even
pending appeal so later on if your affirmative defense is
denied based on this, then you are not allowed to file a motion
for reconsideration. Is there still an option? It is my humble
opinion that it cannot bar you from filing a motion to dismiss
since a motion to dismiss is not a prohibited pleading based
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
on this ground (lack of jurisdiction over the subject matter). I
want you to take note of this very interesting action based on
the dismissal for this ground.
It’s also important to have a brief discussion on this particular
ground (litis pendentia). It’s worthwhile to discuss the
requisites of liits pendentia. In the case of Lim v Vianzon, it
states that the following are the requisites of litis pendentia:
(1) identity of the parties or at least such parties representing
the same interest in both actions; (2) identity of rights
asserted and reliefs prayed for with respect to the facts; (3)
identity with respect to the two proceeding particulars such
that any judgment rendered in a pending case will amount to
res judicata in another case; which brings us to the second
type of ground which is res judicata.
What are the requisites? (1) the former judgment must be
final; (2) the court which rendered it has jurisdiction over the
subject matter and the parties; (3) judgment must be decided
on the merits; and (4) there must be identity of parties,
subject matter and causes of action. The important element
in many cases is when there is judgment on the merits. It’s
very pivotal in determining whether res judicata exists
meaning there is adjudication on the reliefs prayed for by the
parties. Res judicata, as a ground for dismissal is based on
two grounds: public policy and necessity. This makes it the
interest of the State to put an end to the litigation and the
hardship of the individual of being vexed twice for the same
cause. So that’s the basis for these grounds.
So what is now the effect if the court denies the motion to
dismiss? We discussed the options available. So what happens
if the court grants the affirmative defense or motion to
dismiss? What is the remedy of the aggrieved party? Can he
still re-file the case? Or is he already barred? It all depends. If
it can still be rectified, if there is any infirmity that can be
rectified, then it can still be re-filed. For instance, if there is
lack of jurisdiction over the person, the remedy is to re-file
and properly serve the summons. Another, when the court has
jurisdiction over the subject matter of the claim, then you file
it in the proper court. Now, venue is improperly laid, if
dismissed, plaintiff can file in proper venue. If no legal
capacity to sue, then he can have the option of asking for
another person to properly represent him. When there is an
action pending between the same parties for the same case,
he can have the option of filing the same case where the
action is pending. Where the pleading states no cause of
action, then you amend the pleading so as to include
allegations that would state a cause of action. If the condition
precedent has not been complied with, there is an opportunity
to avail of the condition. These are instances where action can
still be re-filed.
However, there are instances where re-filing is barred:
1. If cause of action is barred by prior judgment
2. Barred by the statute of limitations/prescription
3. Demand has been paid, waived or extinguished
4. Claim is unenforceable under the Statute of Frauds
What is now the remedy of the party whose case was
dismissed and can no longer be re-filed? To appeal the
dismissal. Now, as what I’ve said, when we say what is the
mode of appeal available. He cannot file an ordinary appeal.
What is the remedy? Special civil action for certiorari for grave
abuse of discretion amounting to lack or excess of jurisdiction
but the problem is one of the requisites for filing of a special
civil action for certiorari is that there must be a motion for
reconsideration. These are important requisites. In fact, it is
jurisdictional in the CA that there has been an MR which was
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first considered. Now, if the ground for your dismissal is based
on for instance, venue is improperly laid, you cannot file a
motion to dismiss because that is a prohibited pleading. If
your case will be dismissed based on your affirmative defense,
the plaintiff cannot file a motion for reconsideration so since
you cannot file, you cannot appeal the action of the court
granting the ground of dismissal based on improper venue. So
what is the option for you? You can only wait after the case
has been tried then cite that ground as the basis for your
appeal. Meanwhile, if your ground is any of these (kato 4) and
it is incorporated as an affirmative defense, same result. Why?
Because if it is dismissed based on an affirmative defense, the
plaintiff still cannot file because there is a prohibition. So, in
both cases, whether motion to dismiss or affirmative defense,
if the court grants or dismisses the action, then, I stand
corrected. If it is cited in a motion to dismiss and the court
issues a ruling dismissing the case, then you can file a motion
for reconsideration and elevate it to the CA. I hope that is very
clear.

PROCEEDINGS AFTER SERVICE OF SUMMONS AND

DISMISSAL OF ACTIONS
Here, three options are available to defendant upon receipt of
the complaint, to wit:
a. Filing of a motion for bill of particulars
b. Filing of a motion to dismiss
c. Filing of an answer to the complaint

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RULE 17. DISMISSAL OF ACTIONS
The dismissal of a case is normally at the instance of the
defendant. This is done by way of a motion to dismiss if the
ground is lack of jurisdiction over the subject matter, litis
pendentia, res judicata or prescription. The defendant can also
ask for the dismissal of the case through his answer which
contains the affirmative defenses.
There are times where the case will be dismissed at the
instance of the plaintiff. Is it possible? Yes. This could be done
as a matter of right or as a matter of judicial discretion. Sec.
1 refers to the dismissal of the complaint as a matter of right.
Judge Q: We are talking about the dismissal of the action on
the part of the plaintiff.
Section 1. Dismissal upon notice by plaintiff. – 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. Upon such notice being filed,
the court shall issue an order confirming the dismissal. Unless
otherwise stated in the notice, the dismissal is without
prejudice, except that a notice operates as an adjudication
upon the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or
including the same claim.
Judge Q: Section 1 is not a motion but a notice. What is the
difference? In a motion, you are asking from the court of the
relief, asking for the court to exercise his judicial discretion. A
notice merely notifies so there is no need for the court to
exercise its judicial discretion. A notice by the plaintiff that he
is dismissing the case. Section 1 talks about dismissal as a
matter of right, hence no need for approval from the court.
So, the judge can dismiss it upon a notice of dismissal. Upon
notice, the court shall issue an order confirming the dismissal.
Take note that it does not approve but just confirms it.
However, the dismissal without prejudice rule is only
applicable if the plaintiff has not exhausted the two-dismissal
rule. So the last portion talks about the two-dismissal rule. He
can only exercise this right twice so if he files a notice of
dismissal earlier, he can still file for the second time around
because once there is a dismissal for the second time around,
then it is already with prejudice. If there is a second dismissal,
then the notice of dismissal constitutes dismissal with
prejudice.
When a matter of right
If the defendant has not yet filed an Answer or a Motion for
Summary Judgment.
If there is yet no answer, the plaintiff can always dismiss the
case that he filed and all he has to do is send a notice of
dismissal to the defendant and copy furnish the court. This is
not a Motion because you are not asking a favor from the
court. It is your right to withdraw. The appropriate term here
is “Notice of Withdrawal of the Complaint” or “Notice of
Dismissal.”
When dismissal as a matter of right ceases
Under the clear terms of Section 1, the dismissal as a matter
of right ceases when an answer or a motion for summary
judgment is served on the plaintiff and not when the answer
or the motion is filed with the court. Thus, if a notice of
dismissal is filed by the plaintiff even after an answer has been
filed in court but before the responsive has been served on
the plaintiff, the notice of dismissal is still a matter of right.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Dismissal without prejudice; exceptions
GR: A dismissal made by the filing of a notice of dismissal is a
dismissal without prejudice, i.e., the complaint can be refiled.
The dismissal will, however, be one with prejudice in any of
the following situations:
a. The notice of dismissal by the plaintiff provides that
the dismissal is with prejudice
b. The plaintiff has previously dismissed the same case
in a court of competent jurisdiction based on or
including the same claim.
If the plaintiff files a notice of dismissal providing therein a
reason that prevents the refiling of the complaint, the
dismissal must be deemed one with prejudice even if the
notice does not state that the dismissal is with prejudice.
By Notice of Dismissal
Dismissal is without prejudice except when the order of
dismissal provides otherwise or under the Two Dismissal Rule.
Two-Dismissal Rule
The notice of dismissal operates as an adjudication upon the
merits.
Applies when the plaintiff has:
1. A twice dismissed action
2. Based on or including the same claim
3. In a court of competent jurisdiction
The second notice of dismissal will bar the refiling of the action
because it will operate as an adjudication of the claim upon
the merits. In other words, the claim may only be filed twice,
the first being claimed embodied in the original complaint.
Since, as a rule, the dismissal is without prejudice, the same
claim may be refiled. However, if the refiled claim or complaint
is dismissed again through a second notice of dismissal, that
second notice triggers the application of the two-dismissal rule
and the dismissal is to be deemed one with prejudice because
it is considered an adjudication upon the merits.
For the above rule to apply, the complaints must have been
dismissed in a court of competent jurisdiction. To illustrate:
PP files in the RTC an action to collect P300k from DD. The
complaint was dismissed when PP immediately filed a notice
of dismissal. The claim was again filed in the MTC. Before DD
served either an answer or a motion for summary judgment,
PP filed a notice of dismissal. Does the two-dismissal rule
apply?
No, it does not. The first court, the RTC was not a court of
competent jurisdiction because the claim was below the
jurisdictional amount.
Dismissed by mere notice of amendment
1. Before the service of an answer or motion for summary
judgment.
2. Upon the filing of the notice of dismissal, the court shall
issue an order confirming the dismissal.
It is not the order confirming the dismissal which operates to
dismiss the complaint. As the name of the order implies, said
order merely confirms a dismissal already effected by the filing
of the notice of dismissal.
Section 2. Dismissal upon motion of plaintiff. – Except
as provided in the preceding [S]ection, a complaint shall not
be dismissed at the plaintiff’s instance save upon approval of
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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 or her 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 or her counterclaim in a
separate action unless within fifteen (15) calendar days from
notice of the motion he or she manifests his or her preference
to have his or her 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.
➢ When the defendant has already filed an answer, the
plaintiff can still ask for the dismissal of the complaint but
this time, there must be leave of court. The dismissal is
no longer a matter of right on the part of the plaintiff but
a matter of judicial discretion.
Effect of dismissal upon existing counterclaim
The dismissal does not include the counterclaim that has
already been incorporated in the answer of the defendant
unless the defendant manifested her intention to have her
counterclaim be tried in the same action.
The withdrawal of the case does not include the counterclaim,
meaning the counterclaim can stand if the defendant, within
15 days from receipt of order of the court allowing the
dismissal of the complaint, manifests that she wants her
counterclaim to be tried in the same court. Or she may
manifest that the counterclaim be tried in a separate action.
If a counterclaim has already been pleaded by the defendant
prior to the service upon him of the plaintiff’s motion to
dismiss, and the court grants said motion to dismiss, the
dismissal “shall be limited to the complaint” (Sec. 2, Rule 17).
The phraseology of the provision is clear: the counterclaim is
not dismissed, whether it is a compulsory or a permissive
counterclaim because the rule makes no distinction.
The defendant if he so desires may prosecute his counterclaim
either in a separate action or in the same action. Should he
choose to have his counterclaim resolved in the same action,
he must notify the court of his preference within fifteen (15)
days from the notice of the plaintiff’s motion to dismiss.
Should he opt to prosecute his counterclaim in a separate
action, the court should render the corresponding order
granting and reserving his right to prosecute his claim in a
separate complaint.
Judge Q: This time, not upon notice but upon a motion. It is
now through a motion and not mere notice because it is no
longer a matter of right on the part of the plaintiff but a matter
of judicial discretion. *Reads Section 2* The court will now
assess whether the ground for dismissal still upon the
plaintiff’s instance. What happens to the counterclaim?
*Reads Section 2* The counterclaim can still be heard on by
court by trial. The rule applies to compulsory or permissive
counterclaim since the law does not distinguish provided that
within 15 calendar days from the notice of motion, he
manifests his or her preference to have his counterclaim
resolved in the same action.
Now, what is the effect if he fails to file a manifestation that
he intends to prosecute his counterclaim in the same action?
Once the court issues a dismissal, the defendant loses his right
to prosecute his counterclaim in the same action but it will not
bar his right to prosecute the counterclaim in another action.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Now, unless otherwise provided, the dismissal under this
paragraph shall be without prejudice. The last part talks about
a class suit.
Section 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 or her evidence in chief on the complaint,
or to prosecute his or her 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 or her
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.
3 Grounds for Dismissal due to the Fault of Plaintiff
1. When the plaintiff fails to appear on the date of the
presentation of his evidence in chief without justifiable
cause
a. When it is the turn of the plaintiff after the
pretrial, the initial trial will be for the
presentation of evidence of the plaintiff. When
the plaintiff and the counsel fail to appear
without any justifiable reason, the court may
dismiss the case for failure of the plaintiff to
present evidence.
2. When the plaintiff fails to prosecute his case for
unreasonable length of time
a. This is also called non prosequitur.
b. A dismissal on the basis of non prosequitur
means that the plaintiff is chargeable with want
of due diligence in failing to proceed with
reasonable promptness or willingness on the
part of the plaintiff to prosecute.
3. When plaintiff fails to comply with the Rules of Court or
any order of the court for no justifiable reason or cause.
a. When you are required by the court to comply
with certain rules or any order of the court and
you did not comply, that will be a ground to
dismiss your case.
Note: Judge Q subdivided number 3 into two parts
➢ The dismissal due to the fault of the plaintiff may be done
by the court on its own motion or upon a motion filed by
the defendant.
➢ When there are no justifiable reasons that explain the
plaintiff’s absence during the presentation of his evidence
in chief, the court may dismiss the complaint. The use of
the word, “may” denotes its directory nature and
operates to confer upon the court the discretion to decide
between the dismissal of the case on this technicality.
When can a court dismiss an action motu proprio
1. Failure to prosecute for an unreasonable length of time
2. Failure to appear at the trial
3. Failure to comply with the rules
4. Failure to comply with the order of the court
5. Lack of jurisdiction
Judge Q: It is not based on the action of the plaintiff. The first
two actions are based on the action of the plaintiff. Section 3
talks about dismissal due to the fault of the plaintiff for failure
on his part. *Reads Section 3* This time, without prejudice to
the right of the defendant to prosecute his or her counterclaim
in the same or in a separate action so this may be with or
without prejudice on the re-filing. I want you to take note of
this also.
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Section 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 [S]ection 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.

Note: Rule 17 shall apply also to the dismissal of any

counterclaim, cross-claim, or third party-complaint.

Voluntary dismissal by the claimant by notice as in Sec. 1, Rule

17 shall be made:
a. Before a responsive pleading or a motion for
summary judgment is served
b. If there is none, before the introduction of evidence
at trial or hearing.

Judge Q: Discusses counterclaim, cross-claim and third-party

complaint. The rules above, provisions of this Rule shall apply
likewise. *reads section 4* same effect, responsive pleading,
as long as made before. If no responsive pleading filed, then
it can be made before the introduction of evidence at the trial
or hearing.

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RULE 18. PRE-TRIAL
Judge Q: This is a very important stage in the course of
proceedings because in this stage, we encounter a lot of
technical matters that the party and his counsel will
encounter. So it is imperative that the parties will know about
the intricacies of the 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 the court 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 the
prompt disposition of the action.
All of these matters should be taken up before they proceed
to trial. Although technically, pre-trial is part of the hearing.
So who are the players? It must be conducted before the court
with the parties and their counsel.
When Conducted
Section 1. When conducted. – After the last responsive
pleading has been served and filed, the branch clerk of court
shall issue, within five (5) calendar days from filing, a notice
of pre-trial which shall be set not later than sixty (60) calendar
days from the filing of the last responsive pleading.
Note: The purpose of the pre-trial is to simplify the issues and
lay down the rules before proceeding to a full-blown trial. A
pre-trial is a procedural device held prior to the trial.
When is a pre-trial conducted by the court?
Upon the receipt of an Answer to the complaint which is a
responsive pleading, or if there is a need for a Reply upon
receipt of the Answer, when the issues are already joined, the
Clerk of Court must within 5 days from that responsive
pleading set the case for pre-trial.
The pre-trial date should not be more than 60 days from the
filing of the last responsive pleading.
Note: For purposes of the pre-trial, the expiration of the period
for the filing of the last pleading without it having been served
and filed is sufficient.
Judge Q: Once complaint is filed, summons is issued.
Defendant is given 30 days to file his Answer and after, the
plaintiff will also file his reply. The last responsive pleading
that can be filed is now a Reply to an Answer. Where the last
pleading has not been served and filed, the case is not yet
ready for pre-trial so just to guide us in one of the rulings of
the SC in Pioneer Insurance. So, we have to wait for the filing
of the last responsive pleading.
Earlier, I gave you a flowchart. Use that flowchart to take note
of the periods.
Section 2. Nature and [p]urpose. – The pre-trial is
mandatory and should be terminated promptly. The court
shall consider:
(a) The possibility of an amicable settlement or of a
submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The possibility of obtaining stipulations or admissions of
facts and of documents to avoid unnecessary proof;
(d) The limitation of the number and identification of
witnesses and the setting of trial dates;
(e) The advisability of a preliminary reference of issues to a
commissioner;
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
(f) The propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action should a valid
ground therefor be found to exist;
(g) The requirement for the parties to:
1. Mark their respective evidence if not yet marked
in the judicial affidavits of their witnesses;
2. Examine and make comparisons of the adverse
parties’ evidence vis-a-vis the copies to be marked;
3. Manifest for the record stipulations regarding the
faithfulness of the reproductions and the
genuineness and due execution of the adverse
parties’ evidence;
4. Reserve evidence not available at the pre-trial, but
only in the following manner:
i. For testimonial evidence, by giving the
name or position and the nature of the
testimony of the proposed witness;
ii. For documentary evidence and other
object evidence, by giving a particular
description of the evidence.
No reservation shall be allowed if not made
in the manner described above.
(h) Such other matters as may aid in the prompt disposition
of the action.
The failure without just cause of a party and counsel to appear
during pre-trial, despite notice, shall result in a waiver of any
objections to the faithfulness of the reproductions marked, or
their genuineness and due execution.
The failure without just cause of a party and/or counsel to
bring the evidence required shall be deemed a waiver of the
presentation of such evidence.
The branch clerk of court shall prepare the minutes of the pre-
trial, which shall have the following format: (See prescribed
form)
Note: Pre-trial is a procedural device intended to clarify and
limit the basic issues between the parties. It thus paves the
way for a less cluttered trial and resolution of the case. Its
main objective is to simplify, abbreviate and expedite trial, or
totally dispense with it. It is a basic precept that the parties
are bound to honor the stipulations made during the pre-trial.
Jurisprudence considers a pre-trial is one designed to narrow
and clarify the basic issues between the parties, ascertain the
facts relative to the issues and enable the parties to obtain the
fullest possible knowledge of the issues and facts before civil
trials, and thus, prevent the said trials to be carried on in the
dark. Thus, to obviate It is intended to make certain that all
issues necessary to the disposition of a case are properly
raised. The element of surprise, parties are expected to
disclose at a pre-trial conference all issues of law and fact they
intent to raise at the trial, except such as may involve
privileged or impeaching matters.
Mandatory character of a pre-trial
Pre-trial is mandatory in civil cases. It is mandatory for the
trial court to conduct pre-trial in civil cases in order to realize
the paramount objective of simplifying, abbreviating and
expediting trial. In light of these objectives, the parties are
mandatorily required to submit their respective pre-trial briefs.
Failure of the parties to do so is a ground for dismissal of the
action with prejudice, unless otherwise ordered by the court.
Judge Q: In one of the rulings of the SC, it said that it is not
a mere technicality for it serves a vital objective in simplifying,
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abbreviating and expediting trial. So this is an opportunity for
the court to steer the course of the case to prevent a long
trial. This is a tool to be used under the Rules in order for the
case to be disposed of with expediency. So this is an
opportune time for the court to use its authority over the
parties. So a pre-trial is an opportunity to allow the parties to
enter into an amicable settlement.
Referral to the Philippine Mediation Center
At the start of the preliminary conference, the judge is
mandated to refer the parties and/or their counsels to the
mediation unit of the Philippine Mediation Center for purposes
of mediation. If mediation fails, the judge will schedule the
continuance of the preliminary conference. This rule applies
to Metro Manila, Cebu, Davao City and other places where
Philippine Mediation Center Units may be further organized
and designated.
Discussion of factors:
1. The possibility of an amicable settlement or of a
submission to alternative modes of dispute resolution.
Section 8. Court-[a]nnexed [m]ediation. – After pre-trial
and, after issues are joined, the court shall refer the parties
for mandatory court-annexed mediation.
The period for court-annexed mediation shall not exceed thirty
(30) calendar days without further extension.
Judge Q: After the conduct of pre-trial and issues joined, the
court shall refer the parties to mandatory CAM. There is a
mediation center created by the SC where there are mediators
assigned in a given area to act as mediators between the
parties and explore all avenues of amicable settlement
between the parties. This is part and parcel of the pre-trial.
When should CAM transpire? Court will assign a specific date
directing mediator to conduct mediation on a specific date as
stated in the notice of pre-trial. If the CAM would be
successful, the case will be terminated and that is the end of
the proceedings.
It is important that pre-trial be conducted or terminated first
before the CAM. Once the case is referred back to the court,
trial will proceed but there is still one more method and that
is through JDR.
Section 9. Judicial [d]ispute [r]esolution. – Only if the
judge of the court to which the case was originally raffled is
convinced that settlement is still possible, the case may be
referred to another court for judicial dispute resolution. The
judicial dispute resolution shall be conducted within a non-
extendible period of fifteen (15) calendar days from notice of
failure of the court-annexed mediation.
If judicial dispute resolution fails, trial before the original court
shall proceed on the dates agreed upon. All proceedings
during the court-annexed mediation and the judicial dispute
resolution shall be confidential. (n)
Note: During the pre-trial, the first thing that the judge will
ask the parties is whether or not the case can be settled
amicably. If yes, the court will ask if the parties are willing to
undergo Court Annex Mediation and if in the CAM there is still
no agreement, it will be referred to Judicial Dispute
Resolution. Only if there is failure to settle in the JDR will the
case be returned to the court.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
The parties and counsels on the CAM process are informed
that their appearance in the mediation proceedings before the
PMCU is mandatory. The mediation shall be conducted by the
PMCU under the auspices of the court, and that failure to
appear may be punished by contempt of court or cause the
imposition of sanctions as provided in Section 5, Rule 18 of
the 2019 Amendments to the 1997 Rules of Civil Procedure.
(A.M. No. 19-10-20 SC)
Under the Guidelines, the trial court shall impose the following
sanctions:
• Dismissal of the case, when there is failure of the plaintiff
and counsel to appeal without valid cause when so
required; or
• Ex parte presentation of plaintiff’s evidence and dismissal
of defendant’s counterclaim when there is failure of the
defendant and counsel to appear without valid cause
when so required
Judge Q: Take note that it is the court who will do the JDR
but it is another judge who will conduct the JDR.
Judge Q: If the court is convinced that there is a possibility of
amicable settlement, then he can advise the parties to come
up with the terms of amicable settlement. This is very crucial
because it is easier to convince the parties to enter into an
amicable settlement since they have not yet spent money. It
is in human nature that the parties have a chance for amicable
settlement. So, it is crucial for the court to convince the parties
to enter into an amicable settlement. If not, the rules provide
that it is mandatory for the parties to submit to judicial dispute
resolution.
The court is directed or the judge should not allow the
termination of a pre-trial simply because of a manifestation of
the parties that they cannot settle the case. Instead, he should
expose the parties to the advantages of pre-trial. He must also
be mindful that there are important aspects of the pre-trial
that ought to be taken up to expedite the disposition of the
case. This is a case in the ruling of Ramos v Spouses Labella.
There is a reason why the court issued this because it is a
practice before by the parties to dispense with the pre-trial
upon a joint manifestation. That should not be the policy of
the court because the rule clearly states that a pre-trial is
mandatory, therefore, the court has no authority to dispense
with the pre-trial before taking up all these matters.
What are the cases that cannot be referred to CAM and
JDR?
a. Civil cases which by law cannot be compromised, as
follows:
a. The civil status of persons
b. The validity of a marriage or a legal separation
c. Any ground for legal separation
d. Future support
e. Jurisdiction of courts
f. Future legitime
b. Civil aspect of non-mediatable criminal cases
c. Petitions for habeas corpus
d. All cases under RA 9296 (VAWC)
e. Cases with pending application for Restraining
Orders/Preliminary Injunctions
2. Simplification of the issues
The court will simplify the issues of the case.
Judge Q: Of course, there may be minor issues that may be
dispensed with. So, they may agree to dispense with them
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and they will agree with the material and pertinent issues to
be resolved by the court.
3. Possibility of obtaining stipulations or admission of facts
and of documents to avoid unnecessary proof
One of the purpose of the pre-trial is to shorten the pre-trial
proper. One way of shortening the pre-trial proper is for
parties to agree on what facts they can both agree.
In stipulations and admissions of facts, the plaintiff may ask
the defendant: “Do you agree on this stipulation of facts as
stated in the complaint?” And the defendant will also ask the
plaintiff: “Will you admit these as facts?”
When the parties already agree on a particular fact, there is
no need for them anymore to present evidence to prove that
fact.
For example, a case for breach of contract with damages. The
parties will agree that they entered into a contract of
partnership. There is no need any more to prove that they
entered into a contract of partnership because it is already
admitted by both of them.
They may also agree or stipulate that the documents are
genuine.
Judge Q: The court can limit the factual issues it would
determine or identify. That is why the parties are required to
enter into stipulations or admissions.
If all other efforts fail, the judge should endeavor to achieve
the other purposes of a pre-trial like, among others, obtaining
admissions or stipulations of fact or directing the parties to
present evidence which were obtained through the modes of
discovery. So, all of these must be taken up notwithstanding
the fact that the parties failed to enter into an amicable
settlement.
4. Limitation of the number and identification of witnesses
and the setting of trial dates
The court will ask the parties on how many witnesses they
intend to present, who are these witnesses and what they are
going to testify.
The court may say that the party does not have to present all
the witnesses because they are only corroborative. It will just
lengthen the proceeding. That is the purpose of a pre-trial,
where the judge will try to limit the number of witnesses and
identify the witnesses.
The judge will then set a date when they are going to testify.
Judge Q: This is also important to help in the early expedient
resolution of the case. The court must be keen in identifying
which witnesses are vital or merely corroborative or a
duplication to the testimonies of other witnesses.
5. Advisability of a preliminary reference of issues to a
commissioner
The parties will have to agree on this.
A commissioner is someone considered to be an expert. If the
judge does not have a technical knowledge about the case,
then the judge may refer the case to a commissioner. The job
of the commissioner is only to determine the facts of the case.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
It is the judge who will apply the law.
For example, the controversy is about land boundary. A and B
are quarreling over the boundary of their land. You do not
expect the judge to know the exact boundary. That will be
determined by looking at the title of the plaintiff and the
defendant, and it will be plotted by a geodetic engineer. It is
only the geodetic engineer who will know where the real
boundary is. In that case, the judge needs the help of a
geodetic engineer. That matter is also decided in the pre-trial
of whether there is a need to refer the matter first before a
commissioner to determine the factual issues.
Judge Q: If it is beyond the expertise of the legal minds, then
it is advisable that there must be reference of the issues to
the commissioner.
6. Propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action should a
valid ground therefore be found to exist
During the pre-trial, the judge will try to see whether the
matter can be resolved right away without going to a full
blown trial. The judge will decide on the propriety of a
judgment on the pleading or summary judgment or dismissing
the action should there be a valid ground.
If the judge finds out that there is no more valid issue to be
resolved, the judge may render judgment on the pleadings or
resort to a summary judgment. If the judge finds during the
pre-trial conference that the case filed by the plaintiff has
already prescribed, the court may out rightly dismiss the case.
Judge Q: If the court finds that it is appropriate to render
judgment based only on the pleadings or render a summary
judgment or ground to dismiss the case, then it must be
included in the pre-trial.
7. The requirement for the parties to: (a) mark their
respective evidence if not yet marked in the judicial
affidavits of their witnesses and (b) examine and make
comparisons of the adverse parties’ evidence vis-à-vis the
copies to be marked
This is new. This is not found in the Old Rules. The
requirement for the parties to mark their respective exhibits is
part of the pre-trial stage. The court will require the parties to
mark their documentary exhibits first. This is normally done
before the Clerk of Court. The documentary exhibits shall be
pre-marked by the COC.
During the pre-marking, normally, what is attached to your
pleading are just the machine copies of the original document.
During this stage, you have to bring the original and show it
to the lawyer of the opposing party.
For example, if you are the lawyer for the plaintiff, you tell to
the lawyer of the defendant that you have marked the Deed
of Sale in the Judicial Affidavit as Exhibit A. It is only a machine
copy and not the original. You will ask the lawyer of the
defendant to examine the original and compare it to the
machine copy and state for the record that it is a faithful
reproduction of the original. That is how the marking is done.
That is also what the defendant will do. The defendant will ask
the lawyer of the plaintiff to examine the machine copy and
compare it to the original.
Under the rules, a machine copy is still admissible as evidence
in court. If you ask the court to mark a machine copy, that will
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be objected during the formal offer of exhibits. You must bring
the original and for that machine copy to be admissible, it
must be compared first to the original. The opposing party
should be given that opportunity to compare the machine
copy to the original.
If the original is already lost, you have to explain that to the
court.
(c) Manifest for the record stipulations regarding the
faithfulness of the reproductions and the genuineness and due
execution of the adverse parties’ evidence and (d) reserve
evidence not available at the pre-trial, but only in the following
manner: (i). For testimonial evidence, by giving the name or
position and the nature of the testimony of the proposed
witness; (ii). For documentary evidence and other object
evidence, by giving a particular description of the evidence.
During the pre-trial, you are allowed to make a reservation.
You can say, “Your Honor, I resolve to present an additional
witness or testimonial evidence ; or I resolve to present
additional documentary and object evidence.”
But you have to present to court why you were not able to
present the evidence during the pre-trial.
When you ask for additional presentation of testimonial
evidence, you have to inform the court who that person is and
if his testimony will be relevant to the case.
For documentary evidence, you also have to explain to the
court that the documentary evidence is not yet available to
the court.
Judge Q: Evidence may be testimonial or documentary
evidence so at this stage, the parties must present their
evidence, to lay all their cards on the table. One of the ways
of presenting evidence is the marking so that in the course of
the trial, these evidence will be identified. Plaintiff-
alphabetical; defendant- numerical. The pre-trial also serves
to the parties to examine and make comparisons of the
adverse parties.
If the party is going to present a photocopy of the document,
he must also present the original and for the other party to
admit the authenticity of the document. As a rule, you must
present all your evidence in the pre-trial stage but there is
some evidence which are not readily available and the pre-
trial has already been set so he can make a reservation as
long as the party gives a proper description. As what I’ve said,
the purpose of a pre-trial is to do away with the corrobative
statements of witnesses. That is why the most important
witness rule is important. In the nature of testimony, the court
can already identify if the statement of the witness is
important.
Now, here comes an important part. The failure of the
appearance of the party and counsel to appear during pre-trial
despite notice shall result in a waiver of any objection to the
faithfulness of the reproductions marked because in the pre-
trial stage, that is where you make your stipulations. Another
effect, it will be a waiver of the presentation of evidence
unless you make a reservation.
Notice of Pre-Trial
Section 3. Notice of pre-trial. – The notice of pre-trial shall
include the dates respectively set for:
(a) Pre-trial;
(b) Court-Annexed Mediation; and
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
(c) Judicial Dispute Resolution, if necessary.
The notice of pre-trial shall be served on counsel, or on the
party [if he] or she has no counsel. The counsel served with
such notice is charged with the duty of notifying the party
represented by him or her.
Non-appearance at any of the foregoing settings shall be
deemed as non-appearance at the pre-trial and shall merit the
same sanctions under Section 5 hereof.
Note: The notice of pre-trial shall include the dates
respectively set for:
a. Pre-trial
b. Court-annexed mediation
c. Judicial Dispute Resolution, if necessary
The notice of pre-trial shall be served on counsel, or on the
party if he or she has no counsel. The counsel served with
such notice is charged with the duty of notifying the party
represented by him or her.
To whom does the sheriff serve the notice of the pre-
trial?
To the lawyer of the plaintiff and the defendant
Note: The sheriff will not send the notice of the pre-trial to the
plaintiff himself or the defendant because if they are
represented by a lawyer, notice to their lawyer is deemed a
notice to them.
So when the lawyer receives the notice of pre-trial, it is the
duty of the lawyer to immediately inform his client of the date
of the pre-trial conference.
Importance of notice of pre-trial
Notice of pre-trial is so important that it would be grave abuse
of discretion for the court for example, to allow the plaintiff to
present his evidence ex parte for failure of the defendant to
appear before the pre-trial who did not receive through his
counsel a notice of pre-trial. Accordingly, there is no legal
basis for a court to consider a party notified of the pre-trial
and to consider that there is no longer a need to send notice
of pre-trial merely because it was his counsel who suggested
the date of pre-trial.
Effect of Lack of Notice of Pre-Trial
Lack of notice of pre-trial voids a subsequently issued
decision. Its absence renders the pre-trial and all subsequent
proceedings null and void.
Judge Q: Sending a notice of pre-trial stating the date, time
and place of pre-trial is mandatory. Its absence will render the
pre-trial and subsequent proceedings void. This must be so as
part of the party’s right to due process. (Agulto v Tecson) so
this explains why you cannot do away with a pre-trial.
The date for pre-trial, CAM or JDR is different. In the Rules of
court, notice of counsel is notice to party so there is no
obligation to serve notice to party. Just to highlight the
importance of notice, “If no notice of pre-trial is served, all the
proceedings at the pre-trial, et seq are null and void. Hence,
the absence of the requisite notice of pre-trial to the
defendant’s counsel or to the defendant himself, in case he
has no counsel, nullifies the order allowing the plaintiff to
present his evidence.” So there must be proof that notice of
pre-trial was sent to the parties.
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Take note, non-appearance should be deemed as non-
appearance at the trial.
Appearance of the Parties
Section 4. Appearance of [p]arties. – It shall be the duty
of the parties and their counsel to appear at the pre-trial,
court-annexed mediation, and judicial dispute resolution, if
necessary. The non-appearance of a party and counsel may
be excused only for acts of God, force majeure, or duly
substantiated physical inability.
A representative may appear on behalf of a party, but must
be fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute
resolution, and to enter into stipulations or admissions of facts
and documents.
Note: Appearance of parties is mandatory. Parties and their
counsels must appear during the pre-trial. The only exceptions
are the following:
1. Act of God or force majeure or physical inability of a
witness
2. He authorized somebody to appear for him
3. The person authorized must be clothed with the
proper authority in writing to enter into settlement
and stipulation of facts
4. If the party is a corporation, the authority must be
through a Board Resolution
If you cannot attend the pre-trial conference because you are
sick and confined in the hospital, that is a valid reason for
resetting or postponement of pre-trial. But if you ask for a
postponement, you have to pay a postponement fee.
Even if you are not physically incapacitated but you cannot be
present because you are out of town, you can authorize
somebody to appear before you in the pre-trial. Usually, the
party himself will authorize his lawyer. The party will execute
a special power of attorney giving authority to his lawyer to
appear for and in his behalf. That SPA will be a mere scrap of
paper if it does not contain a specific authority of his attorney-
in-fact to enter into settlement or compromise the case.
Remember, one of the purpose of a pre-trial is to find a way
to settle the dispute.
If the party is a corporation, you cannot expect a juridical
person to appear in court. It must be a natural person. That
person who will appear for and in behalf of a corporation must
also be armed with the necessary authority. The authority is
not an SPA but a Board Resolution. An SPA is only needed if
the party to be represented is an individual.
If you appear for a corporation, armed with an SPA signed by
the President or the Chairman of the Board, that is not valid
because it has no authority to assign somebody to appear for
the corporation. It is the Board who has the authority, so it
must be through a Board Resolution.
Appearance by Representative
A representative may appear on behalf of a party, but must
be fully authorized in writing to:
a. Enter into an amicable settlement
b. To submit to alternative modes of dispute resolution
c. To enter into stipulations or admissions of facts and
documents
Judge Q: I highlighted the word “AND” so both the party and
the counsel must appear. Mere conflict of schedule is not a
ground. He must be able to prove that it is force majeure or
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
tantamount to a fortuitous event. In the event that a party will
be unable to appear, a representative who is authorized in
writing may appear.
It is not sufficient for the written authority to give to the
representative the power to enter into one of the matters
mentioned in Sec. 4. The authority must also confer upon the
representative the power to enter into alternative dispute
resolution and stipulations and admissions of fact. If the
authority does not clearly state the authority required under
this Rule, it will be treated as absence of authority and once
there is absence of written authority, then it will be as if the
parties failed to appear. Will it be sufficient for the party not
to appear based on other ground as long as he has a
representative? The answer is no, because the only occasion
he is excused for his non-appearance are the ones mentioned
in the Section. To excuse his appearance, he must also issue
a written authority. So it is not enough that there is a ground
to excuse him but he must also issue a written authority. I
want you to take note of that. Can the counsel be authorized
instead of another party? Yes, there is no prohibition under
the law.
Now, one important point during pre-trial, since a
representative is authorized to enter into stipulations, there is
no basis for the representative to move for a resetting once
he is asked if he will admit to enter into stipulation because
he is authorized to admit stipulations. He cannot say “I’m not
sure. I will defer it to the party.” Can he ask for a resetting
based on the fact that he will still refer it to the party? No,
because once you are clothed with authority, you are
presumed to have full authority to enter into an amicable
settlement.
Effect of Failure to Appear
Section 5. Effect of failure to appear . – When duly
notified, the failure of the plaintiff and counsel to appear
without valid cause when so required[,] pursuant to the next
preceding [S]ection, shall cause the dismissal of the action.
The dismissal shall be with prejudice, unless otherwise
ordered by the court. A similar failure on the part of the
defendant and counsel shall be cause to allow the plaintiff to
present his or her evidence ex parte within ten (10) calendar
days from termination of the pre-trial, and the court to render
judgment on the basis of the evidence offered.
Plaintiff- dismissal with prejudice
Defendant- Plaintiff will be allowed to present his evidence
ex parte. It is as if the party is in default. Remedy is to file a
motion for reconsideration and not a motion to lift default.
Effect of failure to appear by the plaintiff
The failure of the plaintiff to appear shall be cause for the
dismissal of the action. This dismissal shall be with prejudice
except when the court orders otherwise. Since the dismissal
of the action shall be with prejudice, unless otherwise
provided, the same shall have the effect of an adjudication on
the merits thus, final. The remedy of the plaintiff is to appeal
from the order of dismissal. An order dismissing an action with
prejudice is appealable. Under the Rules, it is only when the
order of dismissal is without prejudice, that appeal cannot be
availed of. Since appeal is available, certiorari is not the
remedy because the application of a petition for certiorari
under Rule 65 is conditioned upon the absence of appeal or
any plain, speedy and adequate remedy.
Judge Q: What if the plaintiff failed to appear but his counsel
was able to appear? Still, it is a ground for dismissal if it is
without valid cause. What is the remedy of the plaintiff? He
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may appeal the order of dismissal or re-file the complaint, if
the order of dismissal is without prejudice. As a rule, the
dismissal is to be with prejudice unless otherwise ordered by
the court. So he can appeal the case through a special civil
action for certiorari.
Effect of failure to appear by the defendant
The failure of the defendant to appear shall be cause to allow
the plaintiff to present his evidence ex parte and for the court
to render judgment on the basis of the evidence presented by
the plaintiff. The order of the court allowing the plaintiff to
present his evidence ex parte does not dispose of the case
with finality. The order is therefore, merely interlocutory,
hence not appealable. Under Sec. 1 © of Rule 41, no appeal
may be taken from an interlocutory order. The defendant who
feels aggrieved by the order may move for the reconsideration
of the order and if the denial is tainted with grave abuse of
discretion, he may file a petition for certiorari.
Gemina v Heirs of Espejo
It is only when both the party-litigant (plaintiff or defendant)
and his counsel fail to appear in pre-trial that there be the
concomitant consequence of either a dismissal (plaintiff and
counsel were absent), or presentation of evidence ex parte
(defendant and counsel were absent).
N.B. If the court grants the motion, there is no need to set for
another pre-trial.
Under the Old Rules, the term used is as in default. But it was
already removed. What the court will do is to direct the
plaintiff to present evidence ex parte before the COC. The
remedy of the party-defendant who failed to appear during
the pre-trial is not to file a motion to lift default because he is
not in default here. What he should file is a motion for
reconsideration. He will explain in the MR why he was not able
to appear during the pre-trial. It should be valid reason.
If the court grants the motion, there is no need to set for
another pre-trial. If the plaintiff is done presenting his
evidence ex-parte and the defendant files and MR and the
court grants the MR, the case will be recalled and the
defendant will be allowed to cross-examine the witnesses of
the plaintiff, but there is no need any more to set the case for
new trial, not unless the parties themselves have requested
the court to set the case again for pre-trial.
That is the ruling in the cases of DBP v CA and Young v CA.
GR: When a pre-trial is terminated, you do not go back to it.
The court shall let the plaintiff continue and just let the
defendant cross-examine the plaintiff’s witnesses. As a
general rule a second pre-trial cannot be granted, the remedy
instead is to go to trial. (DBP v CA)
XPN: The pre-trial stage is completed after a party had been
ordered non-suited and the complaint is dismissed or after the
court allows the plaintiff to present his evidence ex-parte. The
order lifting it does not revert the action to its pre-trial stage,
or authorize, much less, a second pre-trial UNLESS the parties
themselves had voluntarily agreed that the case be set anew
for pre-trial. Neither the rules nor the doctrine bars the parties
from agreeing, after such lifting, to hold a pre-trial and to
effectively accomplish its objectives. (Young v CA)
Assuming that the plaintiff is already presenting
evidence, and the defendant filed a motion for
reconsideration. The court reconsidered and recalled
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
the plaintiff’s ex-parte presentation of evidence. Do
they have to back to pre-trial?
No. Follow the case of DBP v CA. Unless, the parties
themselves had voluntarily agreed that the case be set anew
for pre-trial.
Judge Q: What is the remedy of the defendant? The defendant
may move for the reconsideration of the order and if the denial
is tainted with grave abuse of discretion, he may file a petition
for certiorari. Just take note of the remedies as to the orders
of the court.
Pre-trial brief
Section 6. Pre-trial brief. – The parties shall file with the
court and serve on the adverse party, in such manner as shall
ensure their receipt thereof at least three (3) calendar days
before the date of the pre-trial, their respective pre-trial briefs
which shall contain, among others:
(a) A concise statement of the case and the reliefs prayed for;
(b) A summary of admitted facts and proposed stipulation of
facts;
(c) The main factual and legal issues to be tried or resolved;
(d) The propriety of referral of factual issues to
commissioners;
(e) The documents or other object evidence to be marked,
stating the purpose thereof;
(f) The names of the witnesses, and the summary of their
respective testimonies; and
(g) A brief statement of points of law and citation of
authorities.
Failure to file the pre-trial brief shall have the same effect as
failure to appear at the pre-trial.
Note: One of the requirements for pre-trial is that both parties
must submit to the court a pre-trial brief at least 3 calendar
days before the scheduled pre-trial conference.
Contents:
1. A concise statement of the case and the reliefs prayed for
a. You have to state what the case is all about.
Usually, you can present that in 2 to 3
paragraphs. You also state the reliefs prayed for.
b. Summary of cause of action/defense and
prayer/counterclaim.
2. A summary of admitted facts and proposed stipulation of
facts
a. What are the facts as alleged by the other party
that you will need to admit, so that he does not
have to prove that at the same time, you make
a proposed stipulation of facts- you will also
counter-propose facts stated in your Answer
that the plaintiff will admit. Whatever fact
admitted by the parties, there is no need to
prove them anymore.
b. Facts you are willing to admit in pre-trial
conference. If you are proposing the other party
to stipulate, you must also propose to the other
party.
3. The main factual and legal issues to be tried or resolved
a. To your mind, what are the main factual issues
or legal issues to be tried or resolved by the
court. The court will try to summarize and
simplify it.
b. Issues subject to the approval of the court
during the pre-trial conference
4. The propriety of referral or factual issues to
commissioners
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a. If aid of commissioners is needed with respect
to voluminous evidence
5. The documents or other object evidence to be marked,
stating the purpose thereof
a. You will state in your brief the documents to be
submitted or marked and its corresponding
purpose.
6. The names of the witnesses, and the summary of their
respective testimonies
a. This is very necessary because the court will
determine whether these witnesses are still
needed in the case
7. A brief statement of points of law and citation of
authorities
a. You include in your pre-trial brief before the laws
and jurisprudence you relied upon in support of
your claim or defense.
b. In order to support your position/defense, state
the points of law and the jurisprudence.
N.B. Failure to file a pre-trial brief before the date of pre-trial
shall have the same effect as failure to appear at the pre-trial.
If a party did not submit his Pre-trial brief and this party and
his counsel appeared during the pre-trial, the other party and
his counsel can say that he does not recognize the presence
of the lawyer and his client because they failed to file their
Pre-Trial Brief, it is as if they have not appeared in the Pre-
Trial. Also ask the court that you be allowed to present
evidence ex parte because the defendant is now declared in
default- he has no standing here because of failure to submit
his pre-trial.
Judge Q: So a pre-trial brief is a pleading that the parties are
required to file. He must make sure that the opposing party
has been served the pre-trial brief. It is important to take note
of the period because failure to file the pre-trial brief should
have the same effect as failure to appear at the pre-trial. Take
note of this.
The parties are bound by the representations and statements
in their respective pre-trial briefs. Hence, such representations
and statements are in the nature of judicial admission in
relation to Sec 4, Rule 129. This covers the rule on evidence.
The dismissal of the complaint for failure to file pre-trial brief
is discretionary on the part of the trial court. (Ramos v
Spouses Lavendia)
Record of Pre-Trial
The proceeding for pre-trial shall be recorded and thereafter
the court will issue the pre-trial order.
The Pre-Trial Order will summarize what transpired during the
pre-trial such as issues agreed upon by the parties to be
resolved by the court, facts agreed by the parties, and the
controverted facts that will be tried in court.
No termination of pre-trial for failure to settle
The judge should not allow the termination of pre-trial simply
because of the manifestation of the parties that they cannot
settle the case. Instead, he should expose the parties to the
advantages of a pre-trial. He must also be mindful that there
are important aspects of the pre-trial that ought to be taken
up to expedite the disposition of the case.
If all efforts to settle fail, the trial judge shall endeavor to other
purposes of a pre-trial like, among others, obtaining
admissions or stipulations of fact.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
One Day Examination of Witness Rule
The court shall ask the parties to agree on the specific dates
for continuous trial, adhere to the case flow chart determined
by the court, and use the time frame for each stage in setting
the trial dates. Adherence to the One Day Examination of
Witness Rule shall be required where the witness shall be fully
examined in one day only, subject to the court’s discretion
during the trial on whether or not to extend the examination
for justifiable reasons.
Most Important Witness Rule
Where no settlement has been effected, the court shall follow
the Most Important Witness Rule, where the court shall
determine the most important witnesses, limit the number of
such witnesses and require the parties and/or counsels to
submit to the branch clerk of court the names, addresses and
contact numbers of the witnesses to be summoned by
subpoena. Note, however, that the court may also refer the
case to a trial by commissioner under Rule 32.
Questions are to be asked by the judge
During the pre-trial, the judge shall be the one to ask
questions on issues raised by the parties, and all questions or
comments by counsel or parties must be directed to the judge
to avoid hostilities between the parties.
Pre-trial Order
Section 7. Pre-Trial Order. – Upon termination of the pre-
trial, the court shall issue an order within ten (10) calendar
days which shall recite in detail the matters taken up. The
order shall include:
(a) An enumeration of the admitted facts;
(b) The minutes of the pre-trial conference;
(c) The legal and factual issue/s to be tried;
(d) The applicable law, rules, and jurisprudence;
(e) The evidence marked;
(f) The specific trial dates for continuous trial, which shall be
within the period provided by the Rules;
(g) The case flowchart to be determined by the court, which
shall contain the different stages of the proceedings up to the
promulgation of the decision and the use of time frames for
each stage in setting the trial dates;
(h) A statement that the one-day examination of witness rule
and most important witness rule under A.M. No. 03-1-09-SC
(Guidelines for Pre-Trial) shall be strictly followed; and
(i) A statement that the court shall render judgment on the
pleadings or summary judgment, as the case may be.
The direct testimony of witnesses for the plaintiff shall be in
the form of judicial affidavits. After the identification of such
affidavits, cross-examination shall proceed immediately.
Postponement of presentation of the parties’ witnesses at a
scheduled date is prohibited, except if it is based on acts of
God, force majeure or duly substantiated physical inability of
the witness to appear and testify. The party who caused the
postponement is warned that the presentation of its evidence
must still be terminated within the remaining dates previously
agreed upon.
Should the opposing party fail to appear without valid cause
stated in the next preceding paragraph, the presentation of
the scheduled witness will proceed with the absent party being
deemed to have waived the right to interpose objection and
conduct cross-examination.
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The contents of the pre-trial order shall control the valid cause? The presentation will continue and is waiver so
subsequent proceedings, unless modified before trial to the rules is very clear.
prevent manifest injustice.
Flowchart
Note: The pre-trial order shall already contain the dates of
trial. Under the New Rules, the plaintiff is only given 90 days
to finish presenting his evidence. The same is true with the
defendant. In the flow chart of the case, the court will state
the date of the trial, the court will state there the CAM, JDR
and then back to the court, and then the finalization of the
trial. Then the start of the presentation of evidence for the
plaintiff. It is already specified when the first witness will be
presented, the second, the third, etc.

To avoid delay, we now adopt the One Day Witness Rule.

IOW, when the witness is presented in the witness stand, he
will also be cross-examined on that same day because that
witness has already executed a Judicial Affidavit. It will not be
long anymore because that witness already executed a JA. If
that witness is the witness for the plaintiff and you are the
lawyer for the defendant, before that witness sits in the
witness stand, the counsel for the defendant already has a
copy of the JA. So when the witness is already presented, it
will just only take one or two minutes for the lawyer of the
plaintiff to present him. He will just be asked to identify the
JA whether everything stated there is true and correct,
whether he has read the affidavit and understand the contents
thereof, whether it is his signature found in the affidavit,
whether he confirms and affirms the truthfulness of the
statement in the affidavit.

The lawyer of the defendant is already prepared to conduct

the cross-examination.

The Pre-Trial Order is very important because it now

governs the subsequent proceedings. It is the guiding
rule for the subsequent proceedings.
The pre-trial order shall also contain a statement that the one-
day examination of witness rule and most important witness
rule under A.M. No. 03-1-09 SC (Guidelines for Pre-Trial) shall
be strictly followed and also a statement that the court shall
render judgment on the pleadings or summary judgment, as
the case may be, that is if the court finds that there is no need
any more for a trial or hearing and presentation of evidence
because there is no controverted issues here.
Judge Q: The admissions embodied in the pre-trial order are
binding upon the parties and conclusive upon them so once it
forms part of the pre-trial order, then there is no need to
adduce evidence to that effect.
Take note that each party is given a period of total 180 days
to present evidence so this is the timeline allowed by the
Rules.
Another important thing is the case flowchart. That is why it
is important for you to familiarize with the flowchart, the one
I gave you earlier.
Also take note, that without submission of the judicial
affidavit, no witness may be allowed to be presented and
testify for it forms part of the pre-trial. Judicial affidavits are
statements made by a witness in the form of a question and
answer format.
The party who causes postponement will not merit the
addition of another trial date. What if the opposing party failed
to appear? Meaning through counsel fails to appear without
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Note: Testimonies of witnesses should be in affidavit form. No
witnesses can be presented in court without prior judicial
affidavit. Postponement of presentation of a witness on a date
specified is prohibited, except:
i. Acts of God or force majeure
ii. Physical inability
N.B. The party who caused the postponement is warned that
the presentation of his evidence must be terminated within
the allotted time.
Judgment after Pre-Trial
If there are no more controverted issues, the court will
proceed to decide based on summary judgment or judgment
on the pleadings.
Section 10. Judgment after pre-trial. – Should there be
no more controverted facts, or no more genuine issue as to
any material fact, or an absence of any issue, or should the
answer fail to tender an issue, the court shall, without
prejudice to a party moving for judgment on the pleadings
under Rule 34 or summary judgment under Rule 35, motu
proprio include in the pre-trial order that the case be
submitted for summary judgment or judgment on the
pleadings, without need of position papers or memoranda. In
such cases, judgment shall be rendered within ninety (90)
calendar days from termination of the pre-trial.
The order of the court to submit the case for judgment
pursuant to this Rule shall not be the subject to appeal or
certiorari. (Judge Q: Since it is still premature)
How
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When there are no more controverted issues, the court will
decide right away.

When
Within 90 days but shall not be subject to appeal or certiorari

N.B. All proceedings for court annexed mediation and Judicial

Dispute Resolution are confidential.

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
CIVPRO |
RULE 19. INTERVENTION
Intervention is a legal proceeding by which a third person,
who is not originally impleaded in 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.
Who May Intervene
Section 1. Who may intervene. – A person who has a legal
interest in the matter in litigation, or in the success of either
of the parties, or an interest against both, or is so situated as
to be adversely affected by a distribution or other disposition
of property in the custody of the court or of an officer thereof
may, with leave of court, be allowed to intervene in the action.
The court shall consider whether or not the intervention will
unduly delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenor’s rights may
be fully protected in a separate proceeding.
Note 1: 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 requirements set by the Rules.
This third person who intervenes is one who is not originally
impleaded in the action.
Note 2: Intervention is a remedy given to an outsider of the
case to participate.
For example, A filed a case against B. C says she will be
affected in that case because she has an interest in the subject
matter of the case.
Can C intervene?
Yes
Grounds
1. The intervenor has a legal interest on the matter under
litigation
2. The intervenor has a legal interest in the success of either
of the parties
3. The intervenor has a legal interest against both
4. The intervenor is so situated as to be adversely affected
by a distribution or other disposition of property in the
custody of the court or of an officer thereof.
Exceptions
1. With respect to indispensable parties, intervention may
be allowed even on appeal
2. When the intervenor is the Republic
3. Intervention may be allowed after judgment where
necessary to protect some interest which cannot
otherwise be protected; and for the purpose of preserving
the intervenor’s right to appeal
4. Class suit
Note 3:
Intervention is merely collateral or accessory or ancillary to
the principal action and not an independent proceeding. With
the final dismissal of the original action, the complaint in
intervention can no longer be acted upon.
Exception:
The intervenor in a pending case is entitled to be heard like
any other party. A claim in intervention that seeks affirmative
relief prevents a plaintiff from taking a voluntary dismissal of
the main action. Where a complaint in intervention was filed
before plaintiff’s action had been expressly dismissed, the
intervenor’s complaint was not subject to dismissal on the
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
ground that no action was pending, since dismissal of
plaintiff’s action did not affect the rights of the intervenor or
affect the dismissal of intervenor’s complaint.
Denial of a motion to intervene does not constitute res
judicata. Remedy of the intervenor is to file a separate action.
Note 4: Intervention is never an independent action, but is
ancillary and supplemental to the existing litigation. Its
purpose is not to obstruct nor unnecessarily delay the placid
operation of the machinery of trial, but merely to afford one
not an original party, yet having a certain right or interest in
the pending case, the opportunity to appear and be joined so
he could assert or protect such right or interests. However,
the remedy of intervention is not a matter of right but rests
on the sound discretion of the court upon compliance with the
first requirement on legal interest and the second requirement
that no delay and prejudice should result as spelled out under
Section 1, Rule 19 of the Rules of Court.
Judge Q: Intervention is merely optional. Hence, the court has
the full measure of discretion in permitting or allowing the
same. That is why this is the exception rather than the rule.
From Section 1 alone, we can already gather the requisites.
What would be the basis of the court in determining the
approval of a motion to intervene? Whether or not the
intervention will unduly delay or prejudice the adjudication of
the rights of the original parties. Take note that the party
intervening is not an original party. Another factor is whether
or not the intervenor’s rights may be fully protected in a
separate proceeding. As a general rule, parties seeking to
intervene can adequately protect his interest in a separate
proceeding so if it will benefit to the whole parties concerned,
then the judge may allow the intervention.
Intervention is not an independent proceeding but is ancillary
and supplemental to an existing litigation (Saw v CA)
Discussion on the grounds
1. The intervenor has a legal interest on the matter under
litigation.
The legal interest must be one that is actual and material,
direct and of an immediate character, not merely contingent
or expectant so that the intervenor will either gain or lose by
the direct legal operation of the judgment. Thus, when the
title to the property has been already declared void by final
judgment, intervention will not revive or reinstate the
movant’s title derived from the title declared void.
2. The intervenor has a legal interest in the success of either
of the parties
So you are interested in the plaintiff winning or the defendant
winning.
3. The intervenor has an interest against both parties.
I am not interested in the victory of either the plaintiff or the
defendant. I am interested with my victory against both. So it
becomes a three-cornered fight.
4. The intervenor is so situated as to be adversely affected
by a distribution or other disposition of property in the
custody of the court or of an officer thereof.
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E.g. Sonny secures a writ of preliminary attachment against
Gemma but the property attached preliminarily happens to be
my property. So I can move to intervene because I am
adversely affected by the distribution.
Can you not file a third-party claim if your property is
wrongfully attached? Yes you can, but that is not the only
remedy. The law allows the third person to file an intervention
in the main action.
Is intervention a right or a privilege?
No. It is discretionary.
Requisites for intervention:
1. There must be a motion for intervention filed before
rendition of judgment by the trial court.
2. The movant must show in his motion that the:
a. Intervention will not unduly delay or prejudice the
adjudication of the rights of original parties
b. Intervenors rights may not be fully protected in a
separate proceeding
When and How to File
Section 2. Time to intervene. – The motion to intervene
may be filed at any time before rendition of judgment by the
trial court. A copy of the pleading-in-intervention shall be
attached to the motion and served on the original parties.
Note: If you are the intervenor, you file a motion for leave of
court to intervene. Duly attached already to your motion is a
copy of your complaint in intervention.
Effect of dismissal of main action on the intervention
If the intervention is dependent on the existence of the main
action, it will also be dismissed because it is ancillary to the
main action.
Remedy in case intervention is denied
The remedy of the aggrieved party is a motion for
reconsideration. Intervention is an interlocutory order action
or judgment; hence unappealable. Mandamus is not a remedy
as one cannot compel the court to do a discretionary act. But,
if there is grave abuse of discretion, mandamus or certiorari
may be resorted to.
Judge Q: This is a mandatory requirement for the court to
determine if there is merit in your motion. That is the only way
for the court to fully assess or to guide him to the factors that
he must consider in this section, whether they are present or
not.
Pleadings-in-intervention
Section 3. Pleadings-in-intervention. – The intervenor
shall file a complaint-in-intervention if he or she asserts a
claim against either or all of the original parties, or an answer-
in-intervention if he or she unites with the defending party in
resisting a claim against the latter.
If you are allowed to intervene, what kind of pleading
will you file?
You can file (1) complaint-in-intervention or (2) answer-in-
intervention.
If you intervene to side with the plaintiff, then you file a
complaint in intervention against the defendant. If you side
with the defendant, you file an Answer-in-intervention and go
against the plaintiff.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
A person can intervene only if he has a legal interest in the
case on the subject matter under litigation or a legal interest
on the success of either party.
If he does not side on any of the two, what will he file?
File a Complaint-in-Intervention and he will make both the
plaintiff and the defendant as the defendants.
For example, A filed a case against B to recover a parcel of
land. C claims to be the real owner of the land. C can intervene
and file a Complaint-in-Intervention against A and B since his
intervention is not in favor of either of the parties.
Factors to consider whether or not to allow intervention
1. Whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties
2. Whether or not the intervenor’s right may be fully
protected in a separate proceeding.
Answer to Complaint-in-Intervention
Section 4. Answer to complaint-in-intervention. – The
answer to the complaint-in-intervention shall be filed within
fifteen (15) calendar days from notice of the order admitting
the same, unless a different period is fixed by the court.
Judge Q: This presupposes that the motion for intervention
has already been granted by the court and the answer shall
be filed within 15 calendar days. Another note is that an
intervention cannot alter the nature of the action and the
issues are already joined by the parties so the cause of action
cannot be shifted because of an intervention so the original
action must still be considered. In the same way that a change
in theory of the defense is not a proper intervention.
Intervention shall not alter the theory of either parties.
Now, the rule is a motion for intervention can be filed at
anytime before rendition of judgment of the trial court. After
rendition of judgment, a motion to intervene is barred.
Exceptions
1. With respect to indispensable parties, intervention may
be allowed even on appeal
2. When the intervenor is the Republic
a. Prescription does not lie against the State. The State
shall not be bound by the mistakes of its agents.
3. Intervention may be allowed after judgment where
necessary to protect some interest which cannot
otherwise be protected; and for the purpose of preserving
the intervenor’s right to appeal
a. If there is no other remedy and it is the only option
available, the Court somehow relaxed the strict rule
4. May be allowed during the pendency of the appeal, where
the interest of justice so requires
a. This is the common refuge if in case the rules would
be inadequate or too restrictive.
5. Class suit (Note: Not mentioned in judge’s ppt)
What is now the remedy of the denial of a motion to
intervene?
The general rule is that the granting of a motion to intervene
is a matter of judicial intervention and once exercised, the
decision of the court cannot be reviewed or controlled by
mandamus, however erroneous it may be.
However, when there is an arbitrary abuse of discretion, in
this case, mandamus may issue if there is no other adequate
remedy.
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Unless there is showing that there is grave abuse of discretion,
then mandamus will be tenable. The court’s power to allow or
deny intervention is circumscribed by the basic juridical
procedure that only a person with interest in an action or
proceeding may be allowed to intervene. This discretion
however must be exercised judiciously and only after
consideration of all circumstances obtaining in the case. Thus,
where substantial interest in the subject matter of the movant
is undisputed, a denial of a motion to intervene is an injustice.
So in any case, the court must weigh whether or not to allow
or deny the motion to intervene; would work as an injustice
on the part of the movant then the court should defer his
judgment.

Note: Judge Q skipped Rule 20.

RULE 20. CALENDAR OF CASES

Section 1. Calendar of cases. – The clerk of court, under

the direct supervision of the judge, shall keep a calendar of
cases for pre-trial, for trial, those whose trials were adjourned
or postponed, and those with motions to set for hearing.
Preference shall be given to habeas corpus cases, election
cases, special civil actions, and those so required by law.

Section 2. Assignment of cases. – The assignment of

cases to the different branches of a court shall be done
exclusively by raffle. The assignment shall be done in open
session of Which adequate notice shall be given so as to afford
interested parties the opportunity to be present.

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
CIVPRO |
RULE 21. SUBPOENA
It is a court process issued by the court. In Latin, it literally
means “under the pain of penalty.” It is a directive on a person
subject of the subpoena to appear and testify as a rule or
appear and show the document or evidence.
Definition
Section 1. Subpoena and subpoena duces tecum. –
Subpoena is a process directed to a person requiring him or
her to attend and to testify at the hearing or the trial of an
action, or at any investigation conducted by competent
authority, or for the taking of his or her deposition. It may also
require him to bring with him or her any books, documents,
or other things under his or her control, in which case it is
called a subpoena duces tecum.
Subpoena
It 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 under the laws of the Philippines, or
for taking of his deposition.
Issued by the court to require a person to appear in court and
testify
Two Kinds of Subpoena
1. Subpoena duces tecum
a. It is a process directed to a person requiring him to
bring with him at the hearing or trial of an action
any books, documents or other things under his
control.
b. IOW, you are required to bring some documents to
be identified in court.
2. Subpoena ad testificandum
a. It is a process by which the court, at the instance of
a party, commands a witness who has in his
possession or control some document or paper that
is pertinent to the issues of a pending controversy
to produce it at the trial.
b. IOW, you are required to testify only in connection
to the case pending in court.
Note: If It requires you to appear and bring documents and
at the same time testify, that is called subpoena duces
tecum ad testificandum.
Judge Q: When you say “investigation conducted by
competent authority”, it is a government agency usually the
prosecutor’s office or investigative agency. It is a compulsory
order compelling him to attend or testify either in a court or
investigative body. It may also refer to an order directing a
witness to appear for the taking of his deposition. We will take
up deposition later. The first kind of subpoena is simply known
as subpoena. If it will require him to bring a book or other
things under his or her control, it is a subpoena duces tecum.
If he is also called to testify and bring the things, it is a
subpoena duces tecum ad testificandum.
By whom issued
Section 2. By whom issued. – The subpoena may be issued
by –
(a) [T]he court before whom the witness is required to attend;
(b) [T]he court of the place where the deposition is to be
taken;
(c) [T]he officer or body authorized by law to do so in
connection with investigations conducted by said officer or
body; or
(d) [A]ny Justice of the Supreme Court or the Court of Appeals
in any case or investigation pending within the Philippines.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
When application for a subpoena to a prisoner is made, the
judge or officer shall examine and study carefully such
application to determine whether the same is made for a valid
purpose.
No prisoner sentenced to death, reclusion perpetua or life
imprisonment and who is confined in any penal institution
shall be brought outside the penal institution for appearance
or attendance in any court unless authorized by the Supreme
Court.
Who are authorized to issue 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 officers
or body
4. Any justice of the Supreme Court or of the Court of
Appeals in any case or investigation pending within the
Philippines
Can you subpoena a prisoner to appear in court?
Yes, but the law says that the judge should be very careful to
find out whether it is issued for a valid purpose because there
is a risk. If a prisoner is going to be brought out in jail because
he has to testify in a case, that might be an occasion for him
to escape. So, the court should be very careful about that. The
court should have to find out whether it is necessary.
And take note, “No prisoner sentenced to death, reclusion
perpetua or life imprisonment and who is confined in any
penal institution shall be brought outside the penal institution
for appearance or attendance in any court unless authorized
by the Supreme Court.”
Form and Contents
Section 3. Form and contents. – A subpoena shall state
the name of the court and the title of the action or
investigation, shall be directed to the person whose
attendance is required, and in the case of a subpoena duces
tecum, it shall also contain a reasonable description of the
books, documents or things demanded which must appear to
the court prima facie relevant.
Judge Q: Nothing really to discuss. Just a matter of reading.
Grounds of a Motion to Quash Subpoena
Section 4. Quashing a subpoena. – The court may quash
a subpoena duces tecum upon motion promptly made and, in
any event, at or before the time specified therein if it is
unreasonable and oppressive, or the relevancy of the 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.
Grounds of a Motion to Quash Subpoena Duces Tecum
1. If the subpoena is unreasonable or oppressive
a. Best example is if it violates Section 3- it does not
contain a reasonable description of the book,
documents, or things demanded.
2. The relevancy of the books, things, or documents does
not appear
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a. There appears to be no connection between the
documents which are being sought and the issues
in the case.
3. The person in whose behalf the subpoena is issued fails
to advance the reasonable cost for the production thereof
a. Reasonable cost must be paid to the person in
exchange for looking for the document.
Grounds of a Motion to Quash Supboena Ad Testificandum
That the witness is not bound thereby.
Even if it is a subpoena ad testificandum, you may file a
quashal of the subpoena if you are residing more than 100km
from the court. IOW, you are not bound thereby if you are
residing more than 100km from the court. That is what we call
viatory right.
Viatory Right
The right not to be compelled to attend upon a subpoena by
reason of the distance from the residence of the witness to
the place where he is to testify sometimes called the viatory
right of a witness.
Note: Such right applies only in civil cases, not criminal cases.
Judge Q: Court may cancel or quash the subpoena. For
instance, if subpoena is for voluminous documents, court may
quash. There is a requirement that there must be a tender of
the cost in favor of the person producing the documents.
As to ad testificandum, if the witness is not named or
identified in the pre-trial, so there is no basis for the issuance
of a subpoena. If there is no tender of the cost, it is a ground
for the quashal of the subpoena.
Subpoena for Deposition
Section 5. Subpoena for depositions. – Proof of service
of a notice to take a deposition, as provided in [S]ections 15
and 25 of Rule 23, shall constitute sufficient authorization for
the issuance of subpoenas for the persons named in said
notice by the clerk of the court of the place in which the
deposition is to be taken. The clerk shall not, however, issue
a subpoena duces tecum to any such person without an order
of the court.
Note: In case of deposition issued by a judge of a court, the
judge requested to conduct a deposition may issue a
subpoena to the witness. But the court can only issue a
subpoena to the witness if there is already proof that the other
party was furnished a copy of that subpoena.
Judge Q: So this only applies to deposition.
Service of Subpoena
Section 6. Service. – Service of a subpoena shall be made
in the same manner as personal or substituted service of
summons. The original shall be exhibited and a copy thereof
delivered to the person on whom it is served. The service must
be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance.
Costs for court attendance and the production of documents
and other materials subject of the subpoena shall be tendered
or charged accordingly.
How is subpoena served?
1. Personally
2. Registered mail
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Judge Q: Procedure is the same as to summons. May be
allowed as to personal and substituted service only. Service of
a subpoena is a procedural requirement, the purpose of which
is to give a witness an ample opportunity to prepare.
The party who is required to make a tender is the party asking
for the issuance of the subpoena.
Personal appearance in court
Section 7. Personal appearance in court. – A person
present in court before a judicial officer may be required to
testify as if he or she were in attendance upon a subpoena
issued by such court or officer.
Judge Q: So he will be treated as if the subpoena is issued by
the court. His attendance is not by virtue of a subpoena, it just
so happened that he was in court.
Dean M: I don’t think this provision is still applicable. There is
no need of a subpoena if the witness is already inside the
court room. What is actually contemplated here is that during
the trial of the case and the court will ask you if you have
other witnesses and you say that you have other witnesses
inside the court room, a subpoena is not anymore necessary
to be issued.
The general rule is that a person cannot testify in court if he
is not subpoenaed. But if he is already inside the courtroom,
he does not need to be subpoenaed and he can be compelled
to testify right away. That is under the Old Rules. I don’t know
why this is still carried in the New Rules. I don’t think that this
is still applicable in a sense that there is a rule that you cannot
testify if you have not executed a judicial affidavit. This is not
anymore allowed.
Compelling Attendance
Section 8. Compelling attendance. – In case of failure of
a witness to attend, the court or judge issuing the subpoena,
upon proof of the service thereof and of the failure of the
witness, may issue a warrant to the sheriff of the province, or
his or her deputy, to arrest the witness and bring him or her
before the court or officer where his or her attendance is
required, and the cost of such warrant and seizure of such
witness shall be paid by the witness if the court issuing it shall
determine that his or her failure to answer the subpoena was
willful and without just excuse.
Judge Q: So he must bear the consequence of his failure to
attend. This is to emphasize that this is a court process which
must not be taken lightly. So if you are issued a subpoena,
you must appear. It is only for justifiable reasons that your
absence might be excused.
Section 9. Contempt. – Failure by any person without
adequate cause to obey a subpoena served upon him or her
shall be deemed a contempt of the court from which the
subpoena is issued. If the subpoena was not issued by a court,
the disobedience thereto shall be punished in accordance with
the applicable law or Rule.
Note: A person can be compelled to attend. Otherwise, if a
witness is subpoenaed and he refuses to attend without
justifiable reason, the court can order the sheriff to arrest the
person. This is what we call as bench warrant. He will be
brought to court and he will explain to the court why he did
not appear despite the issuance of subpoena, or he will be
cited in contempt.
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Judge Q: Apart from being arrested or pay the cost of issuance
of warrant, he may also be charged with contempt of court
and issued a fine for penalty.
Exceptions
Section 10. Exceptions. – The provisions of [S]ections 8
and 9 of this Rule shall not apply to a witness who resides
more than one hundred (100) kilometers from his or her
residence to the place where he or she is to testify by the
ordinary course of travel, or to a detention prisoner if no
permission of the court in which his or her case is pending was
obtained.
Judge Q: This applies to witnesses residing more than 100km
from the court which he is directed to appear or testify or if
the person subject of the subpoena is a detention prisoner.
He must ask the permission of the court in which his case is
pending. He is not bound by the sanctions under Section 8 or
9.
RULE 22. COMPUTATION OF TIME
Section 1. How to compute time. – In computing any
period of time prescribed or allowed by these Rules, or by
order of the court, or by any applicable statute, the day of the
act or event from which the designated period of time begins
to run is to be excluded and the date of performance included.
If the last day of the period, as thus computed, falls on a
Saturday, a Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next working day.
Section 2. Effect of interruption. – Should an act be done
which effectively interrupts the running of the period, the
allowable period after such interruption shall start to run on
the day after notice of the cessation of the cause thereof.
The day of the act that caused the interruption shall be
excluded in the computation of the period.
NOTABLE MENTION DURING RECITS:
Doctrine of Exhaustion of Administrative Remedies
The doctrine of exhaustion of administrative remedies, like the
doctrine on hierarchy of courts, is not an iron-clad rule. It
admits of several well-defined exceptions. It has been held
that the principle of exhaustion of administrative remedies
may be dispensed in the following instances:
1. When there is violation of due process
2. When the issue involved is purely a legal question
3. When the administrative action is patently illegal and
amounts to lack or excess of jurisdiction
4. When there is estoppel on the part of the administrative
agency concerned
5. When there is irreparable injury
6. When the respondent is a department secretary whose
acts, as an alter ego of the President, bears the implied
and assumed approval of the latter
7. When to require exhaustion of administrative remedies
would be unreasonable
8. When it would amount to a nullification of a claim
9. When the subject matter is a private land in land case
proceedings
10. When the rule does not provide a plain, speedy and
adequate remedy
11. When there are circumstances indicating the urgency of
judicial intervention; and unreasonable delay would
greatly prejudice the complainant
12. When no administrative review is provided by law
13. Where the rule of qualified political agency applies
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
14. When the issue of non-exhaustive remedies has been
rendered moot
Recits Questions:
1. Enumerate the essential requisites of a ground for
dismissal of a bar by prior judgment.
2. When can a defendant be deemed to have voluntarily
appeared before the court?
3. What are the instances when a service of summons by
publication is allowed?
4. What is the omnibus motion rule?
5. What are the instances when prior exhaustion of
administrative remedies may be dispensed with
6. When should pre-trial be conducted
7. When can a judgment proceed immediately after the
conduct of pre-trial
8. What is the proper remedy to the dismissal of the action
due to the plaintiff’s failure to appear at the pre-trial
9. In a suit for collection of sum of money, can jurisdiction
over the person of the defendant be acquired through
extraterritorial service if the defendant is a nonresident
and cannot be found in the Philippines
10. In relation to the previous question, a case of collection
of sum of money, the plaintiff cannot avail of
extraterritorial service because it is an action in
personam, is the plaintiff left without a remedy?
11. In the same case, this time the defendant is a resident,
however, temporarily out of the country. Can service of
summons be made through extraterritorial service?
12. In the same facts, is the availment of extraterritorial
service of summons exclusive? Same facts, collection
case against a resident who is temporarily out of the
country
13. How does one effect extraterritorial service of summons?
14. In the service of summons, when can the principle of
regularity in the performance of official functions be
applied?
15. Is a hearing required before a court may act on a pending
motion?
16. When is the court required to immediately rule on a
motion and what are its conditions?
17. In the return of the service of summons through
substituted service, what should be stated therein?
18. When can a Motion to Dismiss be not considered a
prohibited pleading
19. Can an evidence be reserved by a party during pre-trial
and how
20. What is the effect of the failure of a party and counsel to
appear at pre-trial despite notice
21. What is the rule on postponement on the presentation of
a witness of a party at a scheduled date
22. When can a court-annexed mediation be conducted and
when can a judicial dispute resolution be conducted
23. What is the duty of the judge or officer when an
application for issuance of a subpoena to a prisoner is
made
24. What is now the result if there is non-observance of prior
exhaustion of administrative remedies? (fatal to one’s
cause of action; No cause of action; dismissal of the case
due to lack of cause of action)
Republic v Felix, 2020
Failure to observe the doctrine of exhaustion of administrative
remedies does not affect the jurisdiction of the court. We have
repeatedly stressed this in a long line of decisions. The only
effect of non-compliance with this rule is that it will deprive
the complainant of a cause of action, which is a ground for a
motion to dismiss. If not invoked at the proper time, this
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ground is deemed waived and the court can then take
cognizance of the case and try it.
Cases mentioned during recits:
1. Can you identify the type of admissions mentioned in the
case of Halimao v Villanueva
MTD which hypothetically admits to the allegations only
applies when the ground is based on no cause of action. It
does not apply when the ground is lack of jurisdiction over the
subject matter or jurisdiction over the person,res judicata, litis
pendentia, prescription, unenforceability or on the allegation
that suits must be between the members of the same family
and no earnest efforts towards a compromise has been made.
In such cases, the hypothetical admission is limited to the
facts alleged in the complaint which relate to and are
necessary for the resolution of these grounds as preliminary
matters involving substantive or procedural laws, but not to
the other facts of the case.
On the other hand, when the motion to dismiss is based on
payment, waiver, abandonment (or any of the affirmative
defenses), the motion to dismiss does not hypothetically, but
actually admits, the facts alleged in the complaint. So that
when a motion to dismiss on these grounds is denied, what is
left to be proven in the trial is no longer the existence of the
debt but the fact vel non of payment by the defendant.
2. Tan v CA- In the ruling of the SC, the court did not apply
the rule that once a defendant moves for the dismissal of
the complaint on the ground of failure to state a cause of
action-the SC did not apply the rule that once a motion is
filed, the facts alleged in the complaint are hypothetically
admitted. Can you elaborate on this further.
The flaw in this conclusion is that, while conveniently echoing
the general rule that averments in the complaint are deemed
hypothetically admitted upon the filing of a motion to dismiss
grounded on the failure to state a cause of action, it did not
take into account the equally established limitations to such
rule, i.e., that a motion to dismiss does not admit the truth of
mere epithets of fraud; nor allegations of legal conclusions;
nor an erroneous statement of law; nor mere inferences or
conclusions from facts not stated; nor mere conclusions of
law; nor allegations of fact the falsity of which is subject to
judicial notice; nor matters of evidence; nor surplusage and
irrelevant matter; nor scandalous matter inserted merely to
insert the opposing party; nor to legally impossible facts; nor
to facts which appear unfounded by a record incorporated in
the pleading, or by a document referred to; and, nor to
general averments contradicted by more specific averments.
A more judicious resolution of a motion to dismiss, therefore,
necessitates that the court be not restricted to the
consideration of the facts alleged in the complaint and
inferences fairly deducible therefrom. Courts may consider
other facts within the range of judicial notice as well as
relevant laws and jurisprudence which the courts are bound
to take into account, and they are also fairly entitled to
examine records/documents duly incorporated into the
complaint by the pleader himself in ruling on the demurrer to
the complaint.
3. In the case of Calalang v CA, why did the Supreme Court
consider the ruling of the lower court dismissing the
complaint for failure of plaintiff’s counsel to appear as too
severe as a sanction
Unless a party's conduct is so negligent, irresponsible,
contumacious, or dilatory as to provide substantial grounds
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
for dismissal for non-appearance, the courts should consider
lesser sanctions which would still amount into achieving the
desired end. And there is authority that an order dismissing a
plaintiff's complaint without prejudice for failure of his counsel
to appear at a pre-trial conference must be reversed as too
severe a sanction to visit on a litigant where the record is
devoid of evidence reflecting the litigant's willful or flagrant
disregard for the Court's authority.
4. What is the decision of the Supreme Court pertaining to
issues that were not taken up in the pre-trial in the case
of LCK v Planters Inc.
However, in cases in which the issue may involve privileged
or impeaching matters, or if the issues are impliedly included
therein or may be inferable therefrom by necessary
implication to be integral parts of the pre-trial order as much
as those that are expressly stipulated, the general rule will not
apply.
A pre-trial order is not meant to be a detailed catalogue of
each and every issue that is to be or may be taken up during
the trial. Issues that are impliedly included therein or may be
inferable therefrom by necessary implication are as much
integral parts of the pre-trial order as those that are expressly
stipulated.
5. In the case of Galura v Math Agro Corp, the court said
that the substituted service of summons requires that it
must be followed strictly, faithfully and fully. What is the
rationale behind this principle that requires strict
compliance of the rules
Service of summons upon the defendant is the means by
which the court may acquire jurisdiction over his person. In
the absence of a valid waiver, trial and judgment without such
service are null and void. This process is solely for the benefit
of the defendant. Its purpose is not only to give the court
jurisdiction of the person of the defendant, but also to afford
the latter an opportunity to be heard on the claim made
against him.
The summons must be served to the defendant in person. It
is only when the defendant cannot be served personally within
a reasonable time that a substituted service may be made.
Impossibility of prompt service should be shown by stating the
efforts made to find the defendant personally and the fact that
such efforts failed. This statement should be made in the proof
of service. This is necessary because substituted service is in
derogation of the usual method of service. It has been held
that this method of service is "in derogation of the common
law; it is a method extraordinary in character, and hence may
be used only as prescribed and in the circumstances
authorized by statute". Thus, under the controlling decisions,
the statutory requirements of substituted service must be
followed strictly, faithfully and fully, and any substituted
service other than that authorized by the statute is considered
ineffective.
Indeed, the constitutional requirement of due process requires
that the service be such as may be reasonably expected to
give the desired notice to the party of the claim against him.
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MODES OF DISCOVERY
Judge Q: There are several rules that covers different modes
of discovery starting with Rule 23. It is imperative to briefly
discuss the nature and purpose of discovery before we take
up the relevant provisions under the rules covering the same.
Let us start with the concept of the modes of discovery. Just
like the purpose of adopting the rules on pre-trial, modes of
discovery is very essential in trying to abbreviate the
proceedings by determining through these devices the real
issues that will be taken up by the court in the course of the
trial. The concept of discovery as ruled in Fortune Corporation
is as follows, “The rules providing for pre-trial discovery of
testimony, pre-trial inspection of documentary evidence and
other tangible things, and the examination of property and
person, was an important innovation in the rules of
procedure. The promulgation of this group of rules satisfied
the long-felt need for a legal machinery in the courts to
supplement the pleadings for the purpose of disclosing the
real points of dispute between the parties and affording an
adequate factual basis in preparation for trial.
One way of looking at it is for the rules to allow the parties
interested in determining what are the real and actual issues
legal or factual by availing of these different modes of
discovery so that the adverse party would have no choice but
to unearth all his cards on the table. This is a mechanism
provided under the rules that the parties could not avoid
because the rules also provide for certain measures of
compulsion. There are certain sanctions provided under the
rules for unjust refusal of adhering to the modes of discovery
if the opposing party seeks to avail of the same.
This is a very important tool to be used by the court so that
the real issues can be determined and without all the other
matters that are deemed irrelevant or impertinent. So just like
in the purpose of adopting a pre-trial, this is another way for
the court to limit the matters that will be taken up during trial
in order to avoid a long and protracted hearing of this case.
To continue, the circular on the conduct of pre-trial and use
of deposition discovery (A.M. 03-1-09 SC) now requires the
court to issue an order requiring parties to avail of the Modes
of Discovery. Now, it doesn’t mean that if it forms part of the
pre-trial stage, it can only be availed only at that stage. You
will learn later on that it can be availed of any time during the
pendency of the case. And as the new rules have adopted, the
policy that the court can direct the parties to avail or allow the
parties to avail of the different modes of discovery particularly
before trial will commence so that the court and the parties
involved will only take up matters that are necessary.
Discovery
Discovery is a device employed by a party to obtain, from the
adverse party, information about relevant matters on the case
in preparation for the trial. In the early days of litigation, a
party would learn about the opponent’s evidence only during
the trial proper. The rules of procedure have, however,
evolved to their present state in which litigation has ceased to
be a game of surprises. Now, parties are allowed to have
knowledge of relevant facts in possession of the adverse party
and to require the disclosure of evidence even prior to trial.
Purpose of discovery
The broad purpose of discovery procedures is to permit
mutual knowledge before trial of all relevant facts gathered by
both parties so that either party may compel the other to
disgorge facts whatever he has in his possession. In the
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
practical sense, the modes of discovery are designed to serve
as an additional device for settlement aside from a pre-trial.
The disclosure of relevant facts in possession of the adverse
party may possibly encourage amicable settlement of the case
after a party realizes the weakness of his position.
In sum, the basic purposes of the rules of discovery are:
a. To enable a party to obtain knowledge of material
facts within the knowledge of the adverse party or of
third parties through depositions
b. To obtain knowledge of material facts or admissions
from the adverse party through written
interrogatories
c. To obtain admissions from the adverse party
regarding the genuineness of relevant documents or
relevant matters of fact through requests for
admissions
d. To inspect relevant documents or objects, and lands
or other property in the possession and control of the
adverse party
e. To determine the physical or mental condition of a
party when such is in controversy.
Depositions must be competent, relevant, authentic, and
offered.
Note: Modes of discovery are intended to be cumulative, and
not alternative or mutually exclusive.
Discovery is not mandatory but failure to avail carries
sanctions in Rules 25 and 26.
Judge Q: The purpose of this device along with the pre-trial
hearing is to narrow and clarify the basic issues between the
parties. It is also used as a device for ascertaining the facts
relative to those issues.
In the case of Tinio v Manzano, the modes of discovery are
designed to serve as an additional device aside from pre-trial,
to narrow and clarify the basic issues between the parties, to
ascertain the facts relative to the issues and to enable the
parties to obtain the fullest possible knowledge of the issues
and facts before civil trials and thus prevent the said trials to
be carried on in the dark and that all issues necessary to the
disposition of a case are properly raised. So as to
unnecessarily drag the hearing of the case because parties
would provide for matters that are not pertinent, this one
would be obviated or avoided.
In the case of Republic v Sandiganbayan, it was held that “The
time-honored cry of fishing expedition can no longer provide
a reason to prevent a party from inquiring into the facts
underlying the opposing party’s case through the discovery
procedures. Probably, if one would avail of the discovery
devices, a party would be able to determine what are the basis
of the complaining party in filing the case and if found later
that he has no evidence to base his claim, then there is an
opportunity to have the case dismissed outright for failure to
establish a basis of his complaint, hence the term, fishing
expedition. It can be determined after the modes of discovery
has been availed of by the concerned party, maybe
discovered, that what the complaining party is doing is a mere
fishing expedition. In other words, he has no sufficient
evidence to establish or support his case. So that would be
the use or purpose of discovery.
Indeed it is the purpose and policy of the law that the parties
– before the trial if not indeed even before the pre-trial- should
discover or inform themselves of all the facts relevant to the
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action, not only those known to their adversaries; in other
words, the desideratum is that civil trials should not be
carried on in the dark; and the Rules of Court make this
ideal possible through the deposition-discovery set forth in
Rules 24 to 29. What these rules seek to achieve is for the
purpose of determining whether the claiming party really has
sufficient evidence or in other words, it will be determined
whether or not he is just engaged in a fishing expedition.
To proceed, the rules on discovery are intended to (a) enable
a party to obtain knowledge of material facts within the
knowledge of the adverse party or of third parties through
deposition; (b) obtain knowledge of material facts or
admissions from the adverse party through written
interrogatories; (c) obtain admissions from the adverse party
regarding the genuineness of relevant documents or relevant
matters of fact through requests for admission; (d) inspect
relevant documents or objects and lands or other property in
the possession or control of the adverse party; and (e)
determine the physical or mental condition of a party when
such is in controversy.
You may notice all of these items cover the different modes
of discovery so these are the subject matters of the modes of
discovery.
This mutual discovery enables a party to discover the evidence
of the adverse party and thus facilitates an amicable
settlement or expedites the trial of the case. All parties are
required to lay their cards on the table so that justice can be
rendered on the merits of the case (Koh v IAC). So all parties
are required to lay their cards on the table so that justice can
be rendered on the merits of the case. IOW, what the rules is
trying to achieve is for the party to be given an opportunity to
demand from the adverse party to lay his cards on the table.
Just to emphasize these principles, discovery is a devise
employed by a party to obtain information about relevant
matters on the case from the adverse party in preparation for
the trial. As contemplated by the rules, this devise may be
used by all the parties to the case. Any party can avail of these
different modes of discovery and if you have noticed, the 2019
Amendments include rules that would somehow aid the court
in threshing out the issues to be ruled upon because the rules
already require the parties to attach in their initiatory pleading,
in the case of a complaining party, all of their documentary,
testimonial or object evidence. It is also another way of
determining the real issues to be taken up or adjudicated by
the court in the case.
Importance of the rules of discovery
The importance of the rules of discovery is that they shorten
the period of litigation and speed up adjudication. The evident
purpose is to enable the parties, consistent with recognized
principles, to obtain the fullest possible knowledge of the facts
and issues before civil trials and thus prevent said trials from
being carried on in the dark. The rules of discovery serve as
(a) devices, along with the pre-trial hearing under Rule 18, to
narrow and clarify the basic issues between the parties; and
(b) devices for ascertaining the facts relative to those issues.
Judge Q: What is the importance of these modes of discovery?
CJ Andres Narvasa, the ponente in the case of Republic v
Sandiganbayan notices and highlights the fact that it is
lamentable that among far too many lawyers (and not a few
judges), are not even familiar or even outright ignorant about
the nature, purpose, and operation of the modes of discovery,
at least a strong yet unreasoned and unreasonable
disinclination to resort to them- which is a great pity for the
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
intelligent and adequate use of the deposition- discovery
mechanism, coupled with pre-trial procedure, could as the
experience of other jurisdictions convincingly demonstrates,
effectively shorten the period of litigation and speed up
adjudication.
In the cases filed in court, there has not been any significant
effect of these rules, frankly speaking, because based on the
cases pending in my court, availment of the modes of
discovery are very rare. It is seldom availed of by the parties.
For some reason or another, it has not been availed of by the
parties and the former CJ is not wrong in his observation that
if their counsels will be very keen and conscious in adapting
the modes of discovery, it will effectively shorten the period
and speed up adjudication.
In another case, to ensure that availment of the modes of
discovery is otherwise untrammeled and efficacious, the law
imposes serious sanctions on the party who refuses to make
discovery, such as dismissing the action or proceeding or part
thereof,…; taking the matters inquired into as established in
accordance with the claim of the party seeking discovery;
refusal to allow the disobedient party support or oppose
designated claims or defenses (Marcelo v Sandiganbayan)
As what I’ve mentioned earlier, the rules is quite explicit on
the mandatory nature of the different modes of discovery
because if there is refusal of the other party to cooperate in
the discovery procedure, they would suffer some sanctions as
you will learn later on.
The application of the rules on the modes of discovery rests
upon the sound discretion of the court. In the same vein, the
determination of the sanction to be imposed upon a party who
fails to comply with the modes of discovery rests on the same
sound judicial discretion. It is the duty of the courts to
examine thoroughly the circumstances of each case and to
determine the applicability of the modes of discovery, bearing
always in mind the aim to attain an expeditious administration
of justice. (Lanada v CA)
So the court should take an active part in steering the course
of the case through the effective application of the rules on
the modes of discovery. As what I have already identified,
what are the different modes of discovery?
What are the different modes of discovery?
1. Deposition
a. Pending Action- De Benne Esse (Rule 23)
b. Before Action- In Perpetuam Rei Memoriam (Rule
24)
2. Written Interrogatories to Parties (Rule 25)
3. Request for Admission of Adverse Parties (Rule 26)
4. Production or Inspection of Documents and Things (Rule
27)
5. Physical and Mental Examination of Persons (Rule 28)
Modes are Cumulative
The fact that a party has resorted to a particular method of
discovery will not bar subsequent use of other discovery
devices.
On the other hand, leave of court is required as regards
discovery by (a) production or inspection of documents or
things in accordance with Rule 27, or (b) physical and mental
examination of persons under Rule 28, which may be granted
upon due application and a showing of due cause (Fortune
Corporation v CA)
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Discovery Still Applies Even if Motion for Bill of
Particulars is Denied
Take note that the purpose of filing a motion for BOP is to
request the other party to state with particularity his
allegations so that the moving party will be able to make an
intelligent answer. There is a need to state with particularity
his allegations so that a proper defense can be interposed by
the movant.
With respect to modes of discovery, the objective really, is to
determine the pieces of evidence so evidentiary facts are
going to be elicited. So, the matters on which discovery is
desired are the same matters subject of a prior motion for bill
of particulars denied for lack of merit is beside the point.
Indeed xxx a bill of particulars may elicit only ultimate facts,
not so called evidentiary facts. The latter are without a doubt
proper subject of discovery. (Republic v Sandiganbayan)
Limitations inevitably arise when it can be shown that the
examination is being conducted in bad faith or in such a
manner as to annoy, embarrass, or oppress the person subject
to the inquiry (See Secs 16 and 18, Rule 23)
One must see to it that his purpose of availing of these devices
is for good cause or in good faith. Otherwise, the opposing
party will unnecessarily be dragged and there is a specific
safeguard for that.
Further limitations come into existence when the inquiry
touches upon the irrelevant or encroaches upon the
recognized domains of privilege or privileged communication.
There are certain types of evidence that may not be disclosed
based on grounds of confidentiality so communications
between spouses and patient-doctor confidentiality are not
covered by these devices so the basic requisites for modes of
discovery limits those that are made in bad faith or those that
are used to annoy, embarrass and oppress the other party
including a limitation to those who are either irrelevant or
covered by privileged communication.
The liberty of a party to make discovery is well-nigh
unrestricted if the matters inquired into are otherwise relevant
and not privileged, and the inquiry is made in good faith and
within the bounds of law (Republic v Sandiganbayan)
While there are limitations to the rules of discovery, even
when permitted to be undertaken without leave and without
judicial intervention, such limitations inevitably arise when it
can be shown that the examination is being conducted in bad
faith; or in such a manner as to annoy, embarrass, or oppress
the person subject to the inquiry; or when the inquiry touches
upon the irrelevant or encroaches upon the recognized
domains of privilege. So this is just a reiteration of that basic
limitation.
How do you distinguish Bill of Particulars from Modes
of Discovery?
Bill of Particulars is Rule 12, when you compel the party to
clarify vague statements of ultimate facts, but it is not an
instrument to compel the other party to reveal evidentiary
facts. The Modes of Discovery are intended to compel the
other party to reveal his evidence and evidentiary facts.
Duty of the court in relation to the modes of discovery
The modes of discovery are considered by the Supreme Court
as vital components of case management in pre-trial courts.
Hence, aside from preparing the summons within one day
from the receipt of the complaint, the court is required to issue
an order requiring the parties to avail of interrogatories to
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
parties under Rule 25 and request for admission by adverse
party under Rule 26 or at their discretion make use of
depositions under Rule 23 or other measures under Rules 27
and 28 within five (5) days from the filing of the answer. A
copy of this order shall also be served upon the plaintiff.
Deposition
Deposition is the taking of the testimony of any person,
whether he be a party or not, but at the instance of a party to
the action. This testimony is taken out of court. It may be
either by oral examination, or by a written interrogatory.
Deposition is the advanced taking of the testimony of a
prospective witness.
Deposition has two classifications:
1. Deposition de benne esse
2. Deposition in perpetuam rei memoriam
Judge Q: In a broad sense, deposition refers to any written
statement verified by oath. A deposition is the testimony of a
witness, put or taken in writing, under oath or affirmation,
before a commissioner, examiner or other judicial officer, in
answer to interlocutory and cross-interlocutory, and usually
subscribed by the witnesses. So do not be misled with the
statement that it is a testimony of a witness. In no way can it
replace the testimony given by a witness in open court when
a hearing is conducted. Technically, it is a testimony but it will
not take the place of a testimony given in open court.
Distinguish deposition from an affidavit.
Affidavit is also a sworn statement of a witness but the
statement is taken ex-parte (no cross-examination) without
formal interrogation and opportunity for cross-examination.
But in deposition there is a cross-examination, there is a
confirmation as if he is already testifying in court.
Affidavits are not admissible in evidence except in cases
governed by the Rule on Summary Procedure (but take note
that this has already been modified under the Judicial Affidavit
Rule) or in ordinary cases subject to cross-examination.
Depositions are intended as a means to compel disclosure of
facts resting in the knowledge of a party or other person,
which are relevant in a suit/proceeding.
Always remember that the objective of availing a discovery
procedure is to ascertain and know the relevant issues or facts
in evidence. It does not take the place of an evidence that is
going to be presented in court. Deposition devices is only a
means of helping a party in ascertaining the actual facts or
issues. It may or may not be used in evidence but they are
not in itself, evidence.
Functions of Deposition
1. Depositions are chiefly a mode of discovery.
Depositions are principally made available by law to the
parties as a means of informing themselves of all the relevant
facts; they are not therefore generally meant to be a
substitute for the actual testimony in open court of a party or
witness. The deponent must as a rule be presented for oral
examination in open court at the trial or hearing. This is a
requirement of Section 1, Rule 132, Rules of Evidence.
So this is what I mentioned earlier, that it will not take the
place of evidence that is going to be presented in court.
Evidence can be testimonial, object or documentary. It is just
to help the parties in ascertaining the relevant facts.
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In the case of Republic v Sandiganbayan, the court said that
deposition is chiefly a mode of discovery whose primary
function is to supplement the pleadings for the purpose of
disclosing the real points of dispute between the parties and
affording an adequate factual basis during the preparation for
trial. Since depositions are principally made available to the
parties as a means of informing themselves of all the relevant
facts, depositions are not meant as substitute for the actual
testimony in open court of a party or witness. ( But you will
learn later on that there is an exception to this. Depositions
can take the place of actual testimony in open court.)
Generally, the deponent must be presented for oral
examination in open court at the trial or hearing.
So it doesn’t mean that when a deposition is taken, then that
witness is no longer required to be presented during the
hearing. This is quite clear under this ruling.
2. 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.
Deposition is allowed as a departure from the accepted and
usual judicial proceedings of examining witnesses in open
court where their demeanor could be observed by the trial
judge, consistent with the principle of promoting just, speedy
and inexpensive disposition of every action and proceeding
and provided it is taken in accordance with the provisions of
the Rules of Court, i.e., with leave of court if summons have
been served, and without such leave if an answer has been
submitted; and provided further that a circumstance for its
admissibility exists.
A deposition should not(?); judge said not but ‘not’ is
mentioned in the case) be allowed, absent any showing that
taking it would prejudice any party. It is accorded a broad and
liberal treatment and the liberty of a party to make discovery
is well-nigh unrestricted if the matters inquired into are
otherwise relevant and not privileged, and the inquiry is made
in good faith and within the bounds of law.
(b) An alternative mode of testimony
This is an exception. Under Section 4 of Rule 23, particularly
paragraph c thereof, the use of deposition is clearly indicative
of the use of deposition as an alternative mode of testimony
in view of distance of residence of deponent, death or
disability of the deponent. This is the same situation in
criminal cases allowing conditional examination of witnesses
for the accused (This is quite specific because deposition to
be presented as testimony in a criminal case can only be
availed of with respect to the evidence of the accused, not the
prosecution. That is explicit in Section 13, Rule 119) or for the
prosecution (See Section 15, Rule 119). So also is the
deposition allowed under the Rule of Examination of a Child
Witness. (There is also a rule promulgated by the Supreme
Court governing examination of child witnesses. These are
instances where deposition may be used as an alternative to
testimony in open court.)
If the purpose is only for use as testimony- the ground
therefor is not solely relevancy but there must be a showing
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
of necessity or unavailability of the deponent to appear
and testify in court. So necessity or unavailability must be
the basis. If there is another way in securing the testimony of
the witness in open court, this should not be resorted to
because this is just an alternative mode of testimony.
Classification
1. Deposition de bene esse- One taken in a pending action
2. Deposition in perpetuam rei memoriam- those taken prior
to the institution of an apprehended or intended action
3. For: videotaped deposition- the one that is covered under
the rule on examination of child witness
a. Rule on Examination of Child Witness- The
prosecutor, counsel, or guardian ad litem may apply
for an order that a deposition be taken of the
testimony of the child and that it be recorded and
preserved on videotape. This is the only instance
where a videotaped deposition is allowed.
b. If the court finds that the child will not be able to
testify in open court at trial, it shall issue an order that
the deposition of the child be taken and preserved by
videotape. (especially if a child in his tender years)
c. The judge shall preside at the videotaped deposition
of a child. Objections to deposition testimony or
evidence, or parts thereof, and the grounds for the
objection shall be stated and shall be ruled upon at
the time of the taking of the deposition.
Purpose of Deposition
1. Assist the parties in ascertaining the truth and in checking
and preventing perjury
2. Provide an effective means of detecting and exposing
false, fraudulent claims and defenses
a. To really ascertain whether the evidence relied by
the court are genuine or based on actual facts
3. Make available in a simple, convenient and inexpensive
way, facts which otherwise could not be proved except
with greater difficulty
4. Educate the parties in advance of trial as to the real value
of their claims and defenses thereby encouraging
settlements
a. Somehow, this gives a different perspective to the
contending parties in order to evaluate later on that
in reality, his claim may not be able to muster the
application of the law so perhaps he needs some
perspective and reflection whether it would be
advisable to proceed to trial so he must be given an
opportunity to reassess his case for the matter
5. Expedite litigation
a. Quite obvious that all matters that may be taken up
are those that are relevant
6. Safeguard against surprise
a. It requires for the parties to lay their cards on their
table. No surprises allowed
7. Prevent delay
8. Simplify and narrow the issues
9. Expedite and facilitate both preparation and trial
a. So it will be clear, the parties are given a clearer
picture and be able to anticipate the course of the
trial.
Depositions serve as a device for ascertaining the facts relative
to the issues of the case. The evident purpose is to enable the
parties, consistent with recognized privileges, to obtain the
fullest possible knowledge of the issues and facts before civil
trials and thus prevent the said trials from being carried out in
the dark.
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RULE 23. DEPOSITION DE BENNE ESSE (DEPOSITION
PENDING ACTION)
Who are those persons whom you can take a
deposition of?
The answer is any person. Anyone. You can take the
deposition of your opponent. You can take the deposition of
any person whom you suspect will be utilized by your
opponent as his witness.
What would be the advantage of that?
The advantage of taking a deposition of the prospective
witness of your opponent is that the witness will presumably
answer truthfully because he is not yet coached by the lawyer
of the opposing party.
Because if you wait for the time that that person will be
presented in court as a witness for your opponent, probably
he is already coached by the lawyer of your opponent.
Manner of Taking Depositions
The taking of deposition is of two kinds. It can either be:
1. Deposition by written interrogatories
2. Deposition by oral examinations
Judge Q: The rules allow taking of deposition within or outside
the Philippines or upon oral examination or written
interrogatories. The rules will not deny the party to cross-
examination because it is explicitly provided in the Rules as
you can see in the provision themselves.
Petitioner’s claim that his right to cross-examine private
respondent’s witnesses will be curtailed has no merit since
petitioner is fully accorded the opportunity for cross-
examination under Section 25, Rule 23 of the Rules of Court.
What’s the difference between the two?
In a deposition upon oral examination, you ask the question
directly to the witness, just like in the trial before the judge,
and it will be recorded.
Whereas, in a deposition by written interrogatories, the
questions are prepared/written beforehand- it is in writing-
and it is sent by the deponent (the person who will testify),
and it will be read to him by the deposition officer, and his
answer will be reduced to writing.
There must be a deposition officer and under the law, even a
notary public is qualified to act as deposition officer because
he can administer oaths.
Depositions Pending Action, When Taken
Section 1. Depositions pending action, when may be
taken. – Upon ex parte motion of a party, the testimony of
any person, whether a party or not, may be taken by
deposition upon oral examination or written interrogatories.
The attendance of witnesses may be compelled by the use of
a subpoena as provided in Rule 21. Depositions shall be taken
only in accordance with these Rules. The deposition of a
person confined in prison may be taken only by leave of court
on such terms as the court prescribes.
Judge Q: As the name suggests, a deposition can be made
orally or in writing. Leave of court may be only taken when
the deposition is of a person confined in prison.
How do you avail of the deposition pending action?
Upon ex parte motion of a party to the case.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Scope of examination
Section 2. Scope of Examination- Unless otherwise
ordered by the court as provided by Section 16 or 18, the
deponent may be examined regarding any matter not
privileged, which is relevant to the pending action, whether
relating to the claim or defense of any other party, including
the existence, description, nature, custody, condition, and
location of any books, documents, or other tangible things and
the identity and location of persons having knowledge of
relevant facts.
What are the questions that you are allowed to ask the
deponent?
The deponent may be examined on any matter, provided:
1. It is not privileged
2. It is relevant to the subject of a pending action.
3. The court may issue orders to protect the parties and
its deponents under Sections 16 or 18.
Judge Q: Section 16 or 18 talk about protection orders. It
could cover any matter as long as it is relevant to the subject
of the pending action made by the pleadings or likely to arise
under the pleadings, not privileged and not restricted by a
protective order.
What are the requirements?
➢ 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
This relates to Section 16, orders for the protection of parties
and deponents. Just to give us an idea of the scope of
examination. What is the exception. If there is good cause
shown to exclude other matters identified under Section 16,
the only way it can be done is after notice is served and upon
motion made by any party or by the person to be examined
for good cause shown for the protection order under Rule 16.
So what are the items? The court in which the action is
pending may make an order:
a. That the deposition shall not be taken
b. That it may be taken only at some designated place other
than that stated in the notice
c. That it may be taken only on written interrogatories
d. That certain matters shall not be inquired into
e. That the scope of the examination shall be held with no
one present except the parties to the action and their
officers or counsel
f. That after being sealed, the deposition shall be opened
only by order of the court, or that secret processes,
developments, research need not be disclosed
g. That the parties shall simultaneously file specified
documents or information enclosed in sealed envelopes
to be opened as directed by the court
h. The court may make any other order which justice
requires to protect the party or witness from annoyance,
embarrassment, or oppression.
So these are the different types of protection orders that the
court may issue under Section 16 but see to it that the
requirements are complied with. If made before the notice,
then it is a pre-mature motion.
Just to expound on the word “good cause”, good cause means
substantial reason- one that affords a substantial excuse. A
particular and specific demonstration of facts, as distinguished
from conclusory statements, is required to establish good
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cause for the issuance of a protective order so it must not be
conjectural. It should be based on actual facts.
Allegation that petitioner merely intended to annoy, harass or
oppress the proposed deponent cannot ably support the
setting aside of a notice to take deposition in the absence of
proof. There must be basis.
Inconvenience to the party whose deposition is to be taken is
not a valid objection to the taking of his deposition. So mere
inconvenience would not qualify within the scope of the term
“good cause” so it must be more than that.
Another type of protection order is one that is issued during
examination. Take note of the distinction class. Under Section
18, protection orders during examination. What are the
requirements?
a. At any time during the taking of the deposition
b. On motion or petition of any party or of the deponent
c. 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.
This is to protect the witness whose testimony will be taken in
oral deposition. The court in which the action is pending or
the RTC of the place where the deposition is being taken may
order either:
a. Cessation or termination of the deposition
b. Limiting the scope and manner of the taking of the
deposition, as provided in Section 16
Those are the type of orders that the court may issue so it is
only the court who can issue to terminate or limit the
examination. Section 18 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 deponent’s constitutional right.
Other grounds, such as bad faith which unreasonably annoy,
embarrass or harass deponent or party may likewise be
invoked.
Examination & Cross-Examination
Section 3. Examination and cross-examination. –
Examination and cross-examination of deponents may
proceed as permitted at the trial under [S]ections 3 to 18 of
Rule 132.
Judge Q: Those that are found in Sections 3 to 18 of Rule 132.
It is as if the witness is being subjected to direct examination
and cross examination so all the rules are applicable.
Attendance of the deponents/witnesses; sanctions
The attendance of witnesses to be examined may be
compelled by the use of a subpoena. In case of the failure of
a witness to attend, the court or judge issuing the subpoena,
upon proof and service thereof and the of the failure of the
witness, may issue a warrant thereof and the failure of the
witness, may issue a warrant to arrest the said witness and
bring him before the court or officer where his attendance is
required. Also, failure to obey a subpoena, without justifiable
cause, shall be deemed a contempt of the court from which
the subpoena is issued.
Uses of Deposition
A deposition may be sought for use in a future action, during
a pending action or for use in a pending appeal. If the
deposition is for use during a pending action, it is commonly
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
called a deposition benne esse and is governed by Rule 23. If
it is to perpetuate a testimony for use in future proceedings
as when it is sought before the existence of an action, or for
cases on appeal, it is called a deposition in perpetuam rei
memoriam. Any or all of the deposition, so far as admissible
under the rules of evidence, may be used (a) against any party
who was present or represented at the taking of the
deposition, or (b) against one who had due notice of the
deposition.
The deposition may be used for the following purposes:
a. For contradicting or impeaching the testimony of the
deponent as a witness
b. For any purpose by the adverse party where the
deponent is a party
c. For any purpose by any party, where the deponent is a
witness if the court finds that:
a. The witness is dead
b. The witness resides more than 100km 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
c. That the witness is unable to attend or testify because
of age, sickness, infirmity, or imprisonment
d. That the party offering the deposition has been
unable to procure the attendance of witnesses by
subpoena
e. When exceptional circumstances exist
d. 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.
Note: Certiorari will not lie against an order admitting or
rejecting a deposition in evidence. The remedy is an appeal
from the judgment. The reason is because it is merely an error
of law not grave abuse of discretion.
Judge Q: The deposition may be used against any party who
was present or was represented at the taking of the deposition
or who had due notice thereof. As what I’ve said, deposition
is not evidence. But once it is being offered as part of
evidence, it can be used against that party who was present
or represented at the taking of deposition or even if he was
absent at the taking as long as he had due notice of the
deposition taking.
The deposition may be used for the following purposes:
a. By any party for the purpose of contradicting or
impeaching the testimony of deponent as witness
i. Happens when the deponent is also testifying in
court
ii. Can be used to question his credibility. This is very
relevant or usually happens when he issues
contradictory statements so the way to impeach him
is to confront him with the deposition he made
before his actual testimony in court.
b. By the adverse party for any purpose where the deponent
is a party or at the time of taking the deposition was an
officer, director, or managing agent of a public or private
corporation, partnership, or association which is a party.
i. Can only be used by an adverse party if the
deponent is an adverse party to the case or if
manager xxx
c. By any party for any purpose, where the deponent is a
witness, whether or not a party, in case of
i. Death
ii. Non-residence of deponent
iii. Disability of a witness
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iv. Non-procurement by subpoena
v. Exceptional circumstances
vi. These are the 5 instances where deposition can be
used as testimony of the deponent who asks as the
witness.
d. 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.
In the case of Sales v Sabino, the Court held that while
depositions may be used as evidence in court proceedings,
they are generally not meant to be a substitute for the actual
testimony in open court of a party or witness. Stated
differently, a deposition is not to be used when the deponent
is at hand. Indeed, any deposition offered during a trial to
prove the facts therein set out, in lieu of the actual oral
testimony of the deponent in open court, may be opposed and
excluded on the ground of hearsay. However, depositions may
be used without the deponent being called to the witness
stand by the proponent, provided the existence of certain
conditions is first satisfactorily established. Five exceptions for
the admissibility of a deposition are listed in Section 4.
Depositions are allowed as a departure from the accepted and
usual judicial proceedings of examining witnesses in open
court, where their demeanor could be observed by the trial
judge; and the procedure is not on that account rendered
illegal nor is the deposition, thereby taken, inadmissible. (San
Luis v Rojas)
A party’s objection to the admission in evidence of the
testimony of the notary public who supposedly notarized the
deed of sale taken in another case in which petitioners were
not parties is persuasive. Such testimony does not qualify as
an exception to the hearsay rule under Sec. 47, Rule 130 of
the Rules of Court. None of the circumstances for the
admission of the testimony given at a former proceeding
obtains in this case. IOW, the court said that the case does
not fall under any of the instances. Not only were petitioners
not parties to the former proceeding and hence without
opportunity to cross-examine the notary public, there was also
no proof that the notary public was already deceased or
unable to testify. Hence, the testimony should not have been
accorded any probative weight. (Ilao-Quianay v Mapile)
Depositions may be used for the trial or for the hearing of a
motion or an interlocutory proceeding. When we say
interlocutory proceeding, matters are to be taken up not for
the purpose of disposing the case if it only involves incidents.
The present case involved a circumstance that fell under the
above-cited Section 4 (c) (2) of Rule 23- the witnesses of
petitioner in Metro Manila resided beyond 100 km from Sultan
Kudarat, the place of hearing. Petitioner offered the
depositions in support of its Motion to Quash (the Writ of
Execution) and for the purpose of proving that the trial court’s
Decision was not yet final. As previously explained, despite the
fact that trial has already been terminated, a deposition can
still be properly taken. (Jonathan Landoil International Co Inc
v Spouses Mangudadatu)
The testimony or deposition of a witness given in a former
case or proceeding may be given in evidence against the
adverse party where the witness is deceased, out of or cannot
with due diligence be found in the Philippines, unavailable or
otherwise unable to testify. The preconditions set forth must
be strictly complied with. The inability to testify does not cover
the case of witnesses who were subpoenaed but did not
appear (They may be cited in contempt). The inability must
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
proceed from a grave cause, almost amounting to death, as
when the witness is old and has lost the power of speech.
(Cariaga v CA)
There is nothing in the Rules of Court or in jurisprudence
which restricts a deposition to the sole function of being a
mode of discovery before trial. Under certain conditions and
for certain limited purposes, it may be taken even after trial
has commenced and may be used without the deponent being
actually called to the witness stand. There is no rule that limits
deposition-taking only to the period of pre-trial or before it;
no prohibition exists against the taking of depositions after
pre-trial. There can be no valid objection to allowing them
during the process of executing final and executory
judgments, when the material issues of fact have become
numerous or complicated. (Pajarillaga v CA) so this is an
example where even the decision has already been rendered.
In fact, it is pending execution, still the court allowed for the
deposition to be taken.
So leave of court is no longer relevant. This has already been
deleted. The only instance when it is required is with respect
to taking of deposition of prisoners.
Rule 23 of the Rules of Court allows the taking of depositions
in civil cases, either upon oral examination or written
interrogatories , before any judge, notary public or person
authorized to administer oaths at any time or place within the
Philippines; or before any Philippine consular official,
commissioned officer or person authorized to administer oaths
in a foreign state or country, with no additional requirement
except reasonable notice in writing to the other party. But for
purposes of taking the deposition in criminal cases, more
particularly of a prosecution witness who would foreseeably
be unavailable for trial, the testimonial examination should be
made before the court, or at least before the judge, where the
case is pending as required by the clear mandate of Section
15, Rule 119 of the Revised Rules of Criminal Procedure (Harry
Go v People)
The condition of the private complainant being sick and of
advanced age falls within the provision of Section 15, Rule 119
of the Rules of Court. However, said rule substantially provides
that he should be conditionally examined before the court
where the case is pending (because of his sickness, illness or
advanced age, it will be justifiable). Thus, this Court concludes
that the language of Section 15, Rule 119 must be interpreted
to require the parties to present testimony at the hearing
through live witnesses, whose demeanor and credibility can
be evaluated by the judge presiding at the hearing, rather
than by means of deposition. Nowhere in the said rule permits
the taking of deposition outside the Philippines whether the
deponent is sick or not. (Harry Go v People) What is
promulgated by the SC in this case is that the rules only apply
to deposition taking in the Philippines. It is not applicable
outside with respect to witnesses for prosecution because the
rules is very explicit that it must be made before the judge or
court where the case is pending so that is not possible for
foreign deposition-taking.
Rules 23 to 28 of the Rules of Court provide for the different
modes of discovery that may be resorted to by a party to an
action. These rules are adopted either to perpetuate the
testimonies of witnesses or as modes of discovery. In criminal
proceedings, Sections 12, 13 and 15, Rule 119 of the Revised
Rules of Criminal Procedure, which took effect on December
1, 2000, allow the conditional examination of both the defense
and prosecution witness.
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Unlike an examination of a defense witness which, pursuant
to Section 13, Rule 119 of the Revised Rules of Criminal
Procedure, may be taken before any judge, or, if not
practicable, a member of the Bar in good standing so
designated by the judge in the order, or, if the order be made
by a court of superior jurisdiction, before an inferior court to
be designated therein, the examination of a witness for the
prosecution under Section 15 may be done only before the
court where the case is pending. So that’s quite different.
It is true that Section 3, Rule 1 of the Rules of Court provides
that the rules of civil procedure apply to all actions, civil or
criminal, and special proceedings. In effect, it says that the
rules of civil procedure have suppletory application to criminal
cases. However, it is likewise true that the criminal
proceedings are primarily governed by the Revised Rules of
Criminal Procedure. Considering that Rule 119 adequately and
squarely covers the situation in the instant case, we find no
cogent reason to apply Rule 23 suppletorily or otherwise.
(Cuenco v Risos)
Suppose I will take the deposition of Juan dela Cruz.
The first part is in my favor but when he was cross-
examined by the other party, he clarified his answers
and turned out that his original answers were not
really in my favor.
So there are two parts of the deposition: PART ONE, in the
general questions, the answers seem to be in my favor; PART
TWO, when the questions are specific, it turned out that it was
not in my favor. So if I am the lawyer what I will offer is the
part one as my evidence because it is in favor of my client.
The other party will present the other part.
In evidence, the party is not obliged to offer in evidence
documents which are against his cause. It is now the job of
the other lawyer to offer the other part thereof. So if this is
so, the picture created will only be half of the whole picture.
Is this unethical as it is suppressing the truth?
No, I am not suppressing the truth. Lawyers are not allowed
to lie. Nowhere in the Legal Ethics is it being espoused that
lawyers are told to lie. In fact, a lawyer must be honest and
true for the administration of justice. It is the lawyer of the
other side who has the absolute right to complete the picture
by offering the other half. I am not under obligation to help
the other side. A lawyer has no obligation to present
everything. He is only under the obligation to support the
interest of my client. What is unethical is when you present
something against the interest of your client.
Is it not twisting the truth?
No. twisting the truth is changing the facts. I am not changing
the facts of the story. I am only presenting one side of the
story. But definitely the other party is not precluded from
testifying to present the other half of the story. If the other
party fails to present the other half of the story, that is their
problem. Do not blame me.
Deposition cannot be used if the deponent is present
or available
One of the important rules in deposition is that a deposition
cannot be used if the deponent is present or available.
Now what does it mean?
For example, I filed a case against the defendant, and while
the case was pending, I was told that one of my very
important witnesses is dying. He has just been found out by
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
the doctor to have a terminal cancer, stage 4, and that he may
die at any time. You do not know yet when he could testify in
court, kay wa pa nagsugod ang hearing.
So, you are afraid that by the time the hearing of the case will
start, he will no longer be available. So, what will you do? You
will take his deposition. Preserve his testimony for future use
so that when the hearing starts and he is already dead, well,
you can still use his deposition. It is as if he is still alive and
he testified in open court.
But then, if by the time the hearing starts, that person is still
alive and is still capable of testifying, his deposition will be
nothing. But, the opponent may use his deposition to
contradict him, to impeach him. So, deposition cannot be used
as a substitute for an open testimony of the witness in court.
Effect of Substitution of Parties
Section 5. Effect of substitution of parties. – Substitution
of parties does not affect the right to use depositions
previously taken; and, when an action has been dismissed and
another action involving the same subject is afterward
brought between the same parties or their representatives or
successors in interest, all depositions lawfully taken and duly
filed in the former action may be used in the latter as if
originally taken therefor.
What is the effect of substitution of parties?
If a deposition has already been taken, and later on, there is
a substitution of one of the parties, like one of the parties dies,
and he is substituted by his heirs, his executor or administrator
of his estate, the deposition-taking can still be used for or
against that party.
Plaintiff filed a case against defendant. Depositions
were taken. Later, one of the parties died and there
was a substitution. Is there a need of taking
depositions again? Will the deposition already taken
be also applicable to the same case although the
parties are now different?
Yes. The substitution of parties does not affect the right to
use depositions previously taken.
Jolina files a case against Maya and depositions were
taken. Later, the case is dismissed without prejudice.
Jolina re-filed the case. Is it necessary for depositions
to be taken all over again?
No need. The depositions taken in the dismissed case will still
apply to the new case. There is no need of repeating the whole
process.
Judge Q: The validity of the deposition will not be affected
even if there is substitution of the parties. In fact, when an
action has been dismissed and another action involving the
same subject is afterward brought between the same parties
or their representatives or successors in interest, all
depositions lawfully taken and duly filed in the former action
may be used in the latter as if originally taken therefore.
This can be also used to subsequent cases if it involves the
same parties. That is found in Section 5.
Objections to Admissibility
Section 6. Objections to admissibility. – Subject to the
provisions of [S]ection 29 of this Rule, objections may be
made at the trial or hearing to receiving in evidence any
deposition or part thereof for any reason which would require
the exclusion of the evidence if the witness were then present
and testifying.
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Deposition Officer Cannot Rule on Objection
Any objections to the admissibility of the deposition cannot be
ruled by the deposition officer. The deposition officer has no
authority to rule on the objection. He will just note it down on
his record.
And it’s the judge who is handling the case who will eventually
decide whether the objection is valid or not.
Can you object to the evidence which is being offered
during the deposition taking?
Yes, however the deposition officer cannot rule but the
objection is recorded. It is the judge who will rule on the
objection during the trial.
Judge Q: It will not take the place of the testimony of a person
as a witness as what I have been mentioning so it could be a
basis for objection.
Waiver of objections
The act of cross-examining the deponent during the taking of
the deposition cannot be considered a waiver of the right to
object to its admissibility as evidence in the trial proper. A
party is not estopped from challenging the admissibility of the
deposition just because he participated in the taking thereof
(the basic ground for objection is that the testimony is
classified as a hearsay evidence). Under Section 29, Rule 23
of the Rules of Court, while errors and irregularities in
depositions as to notice, qualifications of the officer
conducting the deposition, and manner of taking the
deposition are deemed waived if not objected to before or
during the taking of the deposition, objections to the
competency of a witness or the competency, relevancy, or
materiality of testimony may be made for the first time at the
trial and need not be made at the time of the taking of the
deposition, unless they could be obviated at that point (so
meaning to say if at the time of taking of deposition, all of the
parties are present because the deposition will allow the other
party to conduct his cross-examination. The fact that he did
not object to the competency or admissibility of the testimony
and the party participating did not make an objection as to
the admissibility of the evidence will not be considered as a
wavier on his part in the course of the trial). Certiorari will not
lie against an order admitting or rejecting a deposition in
evidence, the remedy being an appeal from the final judgment
(so when you say certiorari, it is a special civil action assailing
the order of the court with respect to matters that are
interlocutory but with respect to orders of the court admitting
or rejecting the deposition, can only be questioned on appeal,
not through a special civil action.)(Sales v Sabino)
Effect of Taking Depositions
Section 7. Effect of taking depositions. – A party shall
not be deemed to make a person his or her own witness for
any purpose by taking his or her deposition.
GR: A party shall not be deemed to make a person his own
witness for any purpose by taking his deposition because
depositions are taken for discovery and not for use as
evidence.
XPN: If a party offers the deposition in evidence, then he is
deemed to have made the deponent his witness.
XPN to the XPN: Unless the deposition is that of an opposing
party or the deposition is used to impeach or contradict the
deponent.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Judge Q: Reason: because depositions are taken for discovery
and not for evidence so it does not mean that a party asking
for the deposition cannot be compelled to make that person
to be his witness in his case so he will not be estopped from
refusing to make that person his witness in the course of his
trial.
Effect of Using Depositions
Section 8. Effect of using depositions. – The introduction
in evidence of the deposition or any part thereof for any
purpose other than that of contradicting or impeaching the
deponent makes the deponent the witness of the party
introducing the deposition, but this shall not apply to the use
by an adverse party of a deposition as described in paragraph
(b) of [S]ection 4 of this Rule.
Judge Q: When he introduces a deposition, that party
introducing the deposition will automatically make the
deponent as his witness except when the introduction of the
deposition is used to contradict or impeach the deponent
himself and if the adverse party uses the deposition of the
other party or of anyone who at the time of taking the
deposition was an officer, director, or managing agent of a
public or private corporation, partnership, or association which
is a party.
As what I’ve said, a deposition is not evidence. It’s only an aid
in discovery. That is why, a deposition to take part in the case,
it must be formally offered in evidence. In the case of Heirs of
Pedro Pasag v Sps Parocha, a formal offer is necessary
because judges are mandated to rest their findings of fact and
their judgment only and strictly upon the evidence offered by
the parties at the trial. Its function is to enable the trial judge
to know the purpose or purposes for which the proponent is
presenting the evidence. On the other hand, this allows
opposing parties to examine the evidence and object to its
admissibility. Moreover, it facilitates review as the appellate
court will not be required to review documents not previously
scrutinized by the trial court.
Rebutting Depositions
Section 9. Rebutting deposition. – At the trial or hearing,
any party may rebut any relevant evidence contained in a
deposition whether introduced by him or her or by any other
party.
Note: It is just like a witness in court. If a witness says
something in court, you can always prove that that is not true.
If it is a deposition, the same thing- you can always rebut the
truth of what he said in his deposition.
Judge Q: Of course, he is given an opportunity. It will not be
constituted as a waiver on his part if he took part in the
deposition-taking of the other party.
Who Can Be a Deposition Officer
Section 10. Persons before whom depositions may be
taken within the Philippines. – Within the Philippines,
depositions may be taken before any judge, notary public, or
the person referred to in [S]ection 14 hereof.
Persons before Whom Depositions May be Taken in
Foreign Countries
Section 11. Persons before whom depositions may be
taken in foreign countries. – In a foreign state or country,
depositions may be taken (a) on notice before a secretary of
embassy or legation, consul general, consul, vice-consul, or
consular agent of the Republic of the Philippines; (b) before
such person or officer as may be appointed by commission or
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under letters rogatory; or (c) the person referred to in
[S]ection 14 hereof.
If deposition is taken in the Philippines
1. Judge
a. Not necessary the judge acting on the case. You can even
request a judge in Manila to be the deposition officer and
he will not be the one to decide.
2. Notary public
a. Authorized by law to administer oath. Take note that not
all lawyers are notary publics. To be a notary public, you
have to apply for commission in the court of the place
where you are practicing.
3. Persons authorized to administer oaths under Sec. 14
If deposition is taken outside the country
1. On notice before a secretary of embassy or legation1,
consul general, consul, vice-consul, or consular
agent of the Republic of the Philippines
2. Before such person or officer as may be appointed
by commission or under letters rogatory2
3. The person referred to in Sec. 14 thereof
Who is the person referred to in Sec. 14?
Any person authorized to administer oaths in that foreign
country can also be a deposition officer.
If the deposition is taken outside the country, how is
it done? Can it be done by oral examination also or by
written interrogatories?
Yes, it can be done by oral examination or written
interrogatories.
Our court is requesting its counterpart court in that country
for some cooperation under the theory of reciprocity where
our court will promise that in the event that that foreign court
will make a request, they will also be accommodated.
Commission
A commission may be defined as an instrument issued by a
court of justice, or other competent tribunal, to authorize a
person to take depositions or do any other act by authority of
such court or tribunal.
Letters rogatory
Letters rogatory is an instrument whereby the foreign court is
informed of the pendency of the case and the name of the
foreign witnesses, and is requested to cause their depositions
to be taken in due course of law, for the furtherance of justice,
with an offer on the party of the court making the request, to
do the like for the other, in a similar case.
It is an instrument sent in the name and by the authority of a
judge or court to another, requesting the latter to cause to be
examined, upon interrogatories filed in a case pending before
the former, a witness who is within the jurisdiction of the
judge or court to whom such letters are addressed.
Example: The case is in Davao. W lives in North Korea. P
should file a motion in court for the court to issue a letters
rogatory. The judge will make a formal communication to the
court in Pyongyang to please take W’s deposition with the
following request: to mail back the answer and offer to return
the favor. If the request is ignored, there is nothing that we
can do. But normally, they comply.

How about in places where we do not have an So letters rogatory is a request to the appropriate foreign
embassy? judicial authority to take the deposition of a witness who is in
For those countries where we do not have diplomatic their jurisdiction and please send us a copy and we assure you
relations, you have to avail of (b). So, in this case, the person in the future, if you have the same problem, we will
who is authorized to take the deposition may be the one who reciprocate.
is authorized by the commission or if not by commission, by
letters rogatory. That is international law. Deposition can be understood by the
officer in any other country because it is internationally
Commission and Letters Rogatory known. If the officer in the foreign country will not do it, we
Section 12. Commission or letters rogatory. – A have no choice because it is only a request.
commission or letters rogatory shall be issued only when
necessary or convenient, on application and notice, and on Distinction
such terms and with such direction as are just and Commission Letters Rogatory
appropriate. Officers may be designated in notices or Issued to a non-judicial Issued to the appropriate
commissions either by name or descriptive title and letters foreign officer who will judicial officer of the foreign
rogatory may be addressed to the appropriate judicial directly take the testimony country who will direct
authority in the foreign country. somebody in said foreign
country; such officer will
Note: A letter commission is an appointment made by our then direct somebody in
court here to a qualified person living abroad to act as a said foreign country to take
deposition officer. The problem with letter commission is that down the testimony
deposition officer does not have coercive power over the Applicable rules of The methods of procedure
witness. procedure are those of the must, from the nature of the
requesting court; the rules case, be altogether under
If the witness will not come, what is the remedy of the of procedure in issuing a the control of the foreign
requesting party in the Philippines? commission are entirely tribunal which is appealed
He will ask the court for the issuance of a letters rogatory. It under its control (so the to for assistance in the
is the request of our court in the PH for a judge in that foreign primary mode is through a administration of justice.
country to take the deposition of the witness. That judge will commission)
have coercive power because he can cite that witness in
contempt.

1
A legation is a diplomatic representative office of lower rank than an 2
Letters rogatory or letters of request are a formal request from a
embassy. Where an embassy is headed by an ambassador, a legation court to a foreign court for some type of judicial assistance. The most
is headed by a minister. Ambassadors outrank ministers and have common remedies sought by letters rogatory are service of process
precedence at official events. and taking of evidence.
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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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Resorted to if permission of
the foreign country is given
Leave of court is not
necessary
A commission may be
defined as an instrument
issued by a court of justice,
or other competent tribunal,
to authorize a person to
take depositions, or do any
other act by authority of
such court or tribunal.
An instrument issued by a
court of justice, or other
competent tribunal to
authorize a person to take
depositions, or do any other
act by authority of such
court or tribunal.
Resorted to if the execution
of the commission is refused
in the foreign country
Leave of court is necessary
Letters rogatory may be
defined as an instrument
sent in the name and by the
authority of a judge or court
to another, requesting the
latter to cause to be
examined, upon
interrogatories filed in a
cause pending before the
former, a witness who is
within the jurisdiction of the
judge or court to whom
such letters are addressed.
An instrument sent in the
name and by authority of a
judge or court to another,
requesting the latter to
cause to be examined, upon
interrogatories filed in a
cause pending before the
former, a witness who is
within the jurisdiction of the
judge or court to whom
such letters are addressed.
Judge Q: Section 13 details the instances wherein the officer
is disqualified to take disposition in any of the following
instances:
a. If he is related to the deponent within the 6 th degree of
consanguinity
b. If he is an employee or attorney of one of the parties
c. If he is related to the attorney of the deponent within the
same degree, or employee of such counsel
d. Financially interested in the action
Section 14. Stipulations regarding taking of
depositions. – If the parties so stipulate in writing,
depositions may be taken before any person authorized to
administer oaths, at any time or place, in accordance with
these Rules, and when so taken may be used like other
depositions.
Deposition upon Oral Examination
Section 15. Deposition upon oral examination; notice;
time and place. – A party desiring to take the deposition of
any person upon oral examination shall give reasonable notice
in writing to every other party to the action. The notice shall
state the time and place for taking the deposition and the
name and address of each person to be examined, if known,
and if the name is not known, a general description sufficient
to identify him or her or the particular class or group to which
he or she belongs. On motion of any party upon whom the
notice is served, the court may for cause shown enlarge or
shorten the time.

Judge Q: It would be illogical and unreasonable to expect
respondent to comply with the letters rogatory without the
cooperation of the very institution or personality named in the
letters rogatory and requested to examine the witnesses.
While a court had the authority to entertain a discovery
request, it is not required to provide judicial assistance
thereto. (Dulay v Dulay)
In the case of American Airlines v CA, the Court said that the
subsequent appearance of the said security officer before the
Philippine consul in Geneva on September 19, 1994 and the
answer to the cross-interrogatories propounded by the private
respondent was transmitted to the trial court by the Philippine
consul in Geneva on September 23, 1994 should be deemed
as full compliance with the requisites of the right of the private
respondent to cross-examine the petitioner’s witness. The
deposition filed by the petitioner should be reinstated as part
of the evidence and considered together with the answer to
the cross-interrogatories.
The Court found that it was in compliance with the procedure
with respect to deposition taking in foreign countries so the
same was made before a consul officer so it satisfied the
compliance or complied with the rules on deposition.
Disqualification for a deposition officer
Section 13. Disqualification by interest. – No deposition
shall be taken before a person who is a relative within the
sixth degree of consanguinity or affinity, or employee or
counsel of any of the parties; or who is a relative within the
same degree, or employee of such counsel; or who is
financially interested in the action.
Note: The deposition officer should not be:
➢ A relative within the sixth degree of consanguinity or
affinity, or employee or counsel of any of the parties;
➢ Or who is a relative within the same degree, or employee
of such counsel
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Note 1: There are two types of deposition taking:
1. Deposition upon oral examination
2. Deposition upon written interrogatories. The former
is governed by Section 15 which is the most popular:
Question—answer and everything is recorded.
Take note that before deposition is taken, there should be
notice to the adverse party. The notice shall state the time
and place for taking the deposition and the name and address
of each person to be examined.
Note 2: If there is already an answer, leave of court is no
longer required so the requesting party will send a notice to
take deposition of a prospective witness. He will notify the
other party so the other party can participate and even ask
cross-examination questions. The requesting party will inform
the court where the case is pending.
If the witness is residing in Davao City and you have a lawyer
friend in Davao, you may request your lawyer friend to be the
deposition officer. That lawyer would normally have to hire a
stenographer. There is a payment for the deposition officer. If
you want to save money, you might as well ask the clerk of
court in Davao to be the one to act as the deposition officer
because they are government officials. The advantage of
making the COC as the deposition officer is that he already
has the stenographer, etc.
The opposing party will have to attend the deposition if it is
by oral examination. During the deposition taking, the party
can object to the line of questions asked but the deposition
officer cannot rule on the objections even if the deposition
officer is a judge in Davao. The one who will rule on the
objection is the judge of the court where the case is pending.
Section 16. Orders for the protection of parties and
deponents. – After notice is served for taking a deposition
by oral examination, upon motion seasonably made by any
party or by the person to be examined and for good cause
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shown, the court in which the action is pending may make the
following orders:
(a) That the deposition shall not be taken;
(b) That the deposition may be taken only at some designated
place other than that stated in the notice;
(c) That the deposition may be taken only on written
interrogatories;
(d) That certain matters shall not be inquired into;
(e) That the scope of the examination shall be held with no
one present except the parties to the action and their officers
or counsel;
(f) That after being sealed the deposition shall be opened only
by order of the court;
(g) That secret processes, developments, or research need
not be disclosed; or
(h) That the parties shall simultaneously file specified
documents or information enclosed in sealed envelopes to be
opened as directed by the court.
The court may make any other order which justice requires to
protect the party or witness from annoyance, embarrassment,
or oppression.
Note: While it is true that leave of court is not necessary
anymore, you have to remember that it is related to a pending
case and the court has control over the case. That is why,
while leave of court is not necessary, any party who is
aggrieved can go to court and complain. Deposition is purely
your concern provided nobody would come here and
complain. That is one of the limitations of deposition taking.
Salient guidelines in the taking of an oral deposition
Section 17. Record of examination; oath; objections. –
The officer before whom the deposition is to be taken shall
put the witness on oath and shall personally, or by some one
acting under his or her direction and in his or her presence,
record the testimony of the witness. The testimony shall be
taken stenographically unless the parties agree otherwise. All
objections made at the time of the examination to the
qualifications of the officer taking the deposition, or to the
manner of taking it, or to the evidence presented, or to the
conduct of any party, and any other objection to the
proceedings, shall be noted by the officer upon the deposition.
Evidence objected to shall be taken subject to the objections.
In lieu of participating in the oral examination, parties served
with notice of taking a deposition may transmit written
interrogatories to the officers, who shall propound them to the
witness and record the answers verbatim.
Section 18. Motion to terminate or limit examination.
– At any time during the taking of the deposition, on motion
or petition of any party or of the deponent and upon a showing
that the examination is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass, or oppress the
deponent or party, the court in which the action is pending or
the Regional Trial Court of the place where the deposition is
being taken may order the officer conducting the examination
to cease forthwith from taking the deposition, or may limit the
scope and manner of the taking of the deposition, as provided
in [S]ection 16 of this Rule. If the order made terminates the
examination, it shall be resumed thereafter only upon the
order of the court in which the action is pending. Upon
demand of the objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary to make
a notice for an order. In granting or refusing such order, the
court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may
deem reasonable.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Note: Section 16 and 18 are similar. They both talk about the
power of the court to control the deposition taking. Section 16
is about protective orders BEFORE deposition taking. Section
18 talks about protective orders DURING the deposition taking
where the court may stop or limit the deposition taking.
A motion to terminate or limit examination may be filed:
1. Any time during the taking of the deposition
2. On motion or petition of any party or of the deponent
3. Upon showing that the examination is conducted in:
a. Bad faith
b. In such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party
When the constitutional privilege against self-incrimination is
invoked by the deponent or his counsel, the trial court may
stop the examination.
Protection Order (Sec 16) v Motion to Terminate or Limit
Examination (Sec 18)
Protection Order Motion to Terminate or Limit
Examination
Provides protection to the Provides such protection
party or witness before the during the taking of the
taking of the deposition testimony
Motion for issuance is filed Motion for issuance is filed
with the court in which the in the court in which the
action is pending action is pending or the RTC
of the place where the
deposition is being taken
Section 19. Submission to witness; changes; signing. –
When the testimony is fully transcribed, the deposition shall
be submitted to the witness for examination and shall be read
to or by him or her, unless such examination and reading are
waived by the witness and by the parties. Any changes in form
or substance which the witness desires to make shall be
entered upon the deposition by the officer with a statement
of the reasons given by the witness for making them. The
deposition shall then be signed by the witness, unless the
parties by stipulation waive the signing or the witness is ill or
cannot be found or refuses to sign. If the deposition is not
signed by the witness, the officer shall sign it and state on the
record the fact of the waiver or of the illness or absence of the
witness or the fact of the refusal to sign together with the
reason given therefor, if any, and the deposition may then be
used as fully as though signed, unless on a motion to suppress
under [S]ection 29(f) of this Rule, the court holds that the
reasons given for the refusal to sign require rejection of the
deposition in whole or in part.
Note: So after the deposition of the deponent is taken, the
deposition officer shall submit the deposition to the deponent
for examination. He may change his answers but he must
state the reason for the change. And he signs it, unless the
parties by stipulation waive the signing, or the witness is ill, or
cannot be found or refuses to sign. In the latter cases, the
deposition will be signed by the deposition officer.
During the trial of the case, the lawyer of the
requesting party will tell the court: “Your Honor, the next
witness is Juan Dela Cruz who is residing in Davao City.
Considering that he cannot come to Cebu City, we have
decided to take the deposition of that witness. It was
conducted before Atty. Abo Gado of Davao City in the
presence of the opposing party and his lawyer.”
The judge will say: “Clerk of Court, will you please bring the
envelope containing the transcript.” The transcript will be
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considered as a transcript of stenographic notes in a hearing
conducted by the judge, as if it was conducted before that
judge.
The other party will now call the attention of the
judge: “Your Honor, during the deposition taken in Davao,
there was that question asked by the requesting party found
in page 5 of the transcript which is Question No. 18. I made
an objection. May we ask the court to make a ruling on the
objection?” The judge will either sustain or overrule.
Section 20. Certification and filing by officer. – The
officer shall certify on the deposition that the witness was duly
sworn to by him or her and that the deposition is a true record
of the testimony given by the witness. He or she shall then
securely seal the deposition in an envelope indorsed with the
title of the action and marked “Deposition of (here insert the
name of witness)” and shall promptly file it with the court in
which the action is pending or send it by registered mail to the
clerk thereof for filing.
Section 21. Notice of filing. – The officer taking the
deposition shall give prompt notice of its filing to all the
parties.
Section 22. Furnishing copies. – Upon payment of
reasonable charges therefor, the officer shall furnish a copy of
the deposition to any party or to the deponent.
Note: Any party can ask for a copy of the deposition upon
payment of reasonable charges therefor.
Section 23. Failure to attend of party giving notice. – If
the party giving the notice of the taking of a deposition fails
to attend and proceed therewith and another attends in
person or by counsel pursuant to the notice, the court may
order the party giving the notice to pay such other party the
amount of the reasonable expenses incurred by him or her
and his or her counsel in so attending, including reasonable
attorney’s fees.
Note: Suppose the opposing counsel is from Manila was
notified of the schedule of the taking of a deposition of a
witness in Davao. And he came over. But the deposition did
not proceed because the party sending the notice did not
show up. So he caused the other party a lot of inconvenience.
The Manila lawyer can file a motion in court to ask for
reimbursement of all his expenses in this case.
Section 24. Failure of party giving notice to serve
subpoena. – If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon him or
her and the witness because of such failure does not attend,
and if another party attends in person or by counsel because
he or she expects the deposition of that witness to be taken,
the court may order the party giving the notice to pay to such
other party the amount of the reasonable expenses incurred
by him or her and his or her counsel in so attending, including
reasonable attorney’s fees.
Note: Suppose the opposing counsel is from Manila was
notified of the schedule of the taking of a deposition of a
witness in Davao. And he came over. The party sending the
notice is also present. But this time it is the witness who is
absent because the party sending the notice forgot to have
the witness subpoenaed. Again, the Manila lawyer can file a
motion in court to ask for reimbursement of all his expenses.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Section 25. Deposition upon written interrogatories;
service of notice and of interrogatories. – A party
desiring to take the deposition of any person upon written
interrogatories shall serve them upon every other party with
a notice stating the name and address of the person who is to
answer them and the name or descriptive title and address of
the officer before whom the deposition is to be taken. Within
ten (10) calendar days thereafter, a party so served may serve
cross-interrogatories upon the party proposing to take the
deposition. Within five (5) calendar days thereafter, the latter
may serve re-direct interrogatories upon a party who has
served cross-interrogatories. Within three (3) calendar days
after being served with re-direct interrogatories, a party may
serve recross-interrogatories upon the party proposing to take
the deposition.
Note: The difference between a deposition upon oral
examination and written interrogatories is that in oral
examination, the questions and the answers are oral.
In deposition upon written interrogatories, the questions are
prepared already in advance and that is direct interrogatories.
And then they furnish you a copy and after receiving it, you
may also, within 10 days, prepare your questions or cross-
interrogatories and you also furnish them copies of it. And
based on that, they can ask further questions. If they are now
sufficient, the deposition officer shall compound the question
one by one but every question requires an answer.
Practically, there is no personal confrontation of the witness.
If your witness is abroad, it is very expensive for you to go
there and conduct an oral examination. So, the practical
means is only deposition upon written interrogatories.
Judge Q: The duties of the officer under Section 17, 19, 20,
21 & 22 of Rule 23 shall also be followed on deposition upon
written interrogatories.
Section 26. Officers to take responses and prepare
record. – A copy of the notice and copies of all interrogatories
served shall be delivered by the party taking the deposition to
the officer designated in the notice, who shall proceed
promptly, in the manner provided by [S]ections 17, 19 and 20
of this Rule, to take the testimony of the witness in response
to the interrogatories and to prepare, certify, and file or mail
the deposition, attaching thereto the copy of the notice and
the interrogatories received by him or her.
Section 27. Notice of filing and furnishing copies. –
When a deposition upon interrogatories is filed, the officer
taking it shall promptly give notice thereof to all the parties,
and may furnish copies to them or to the deponent upon
payment of reasonable charges therefor.
Section 28. Orders for the protection of parties and
deponents. – After the service of the interrogatories and
prior to the taking of the testimony of the deponent, the court
in which the action is pending, on motion promptly made by
a party or a deponent, and for good cause shown, may make
any order specified in [S]ections 15, 16 and 18 of this Rule
which is appropriate and just or an order that the deposition
shall not be taken before the officer designated in the notice
or that it shall not be taken except upon oral examination.
Note: So the protections provided under Sections 15, 16 and
18 are also applicable in oral examinations.
Are the mistakes in deposition taking fatal?
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Note 2:
1. Written interrogatories shall be served upon every
party with notice.
2. The notice shall state the name and address of the
person to answer it.
3. The name, title, and address of the deposition
officer.
4. Within 10 days, the person asked may serve cross-
interrogatories.
5. Deposition officer shall give notice of filing in court
(Sec. 27)
It is a kind of deposition-taking where only the deponent and
the deposition officer will appear. The witness in Davao will be
asked to appear before Atty. Abo Gado at his law office
because the written questions have been mailed to him. The
opposing party will also prepare their own questions and mail
it to the deposition officer.
[S]ections 17, 19, 20 and 26 of this Rule are waived unless a
motion to suppress the deposition or some part thereof is
made with reasonable promptness after such defect is, or with
due diligence might have been, ascertained.
Note: So, if you will notice, majority of all the errors are
waived if objection thereto is not promptly made.
Judge Q: *Reads (a)* so if it is not observed, the rules relating
to the proper issuance of a notice for taking of deposition,
once the party participates, it amounts to waiver unless he
makes a prompt objection. The qualification of the officer is
also deemed waived if he participates without making a timely
objection before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or could be
discovered with reasonable diligence. So if the disqualification
only becomes apparent in the course of deposition taking,
then that’s the time objection may be taken.

The lawyer will now say: “There are two sets of questions that As to competency, *reads (c)* until (f) and rephrases. With
you will answer. The first set is prepared by the counsel for respect to the other provisions not taken up, the rest is just a
the plaintiff.” The deposition officer will note down the matter of reading from 1 to 29.
answers.

After that, he will read the cross-interrogatory questions of the

other party. Everything will be placed and sealed in a brown
envelope and sent to the court in Cebu City.

Section 29. Effect of errors and irregularities in

depositions. –
(a) As to notice. – All errors and irregularities in the notice for
taking a deposition are waived unless written objection is
promptly served upon the party giving the notice.

(b) As to disqualification of officer. – Objection to taking a

deposition because of disqualification of the officer before
whom it is to be taken is waived unless made before the taking
of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with
reasonable diligence.

(c) As to competency or relevancy of evidence. – Objections

to the competency of a witness or the competency, relevancy,
or materiality of testimony are not waived by failure to make
them before or during the taking of the deposition, unless the
ground of the objection is one which might have been
obviated or removed if presented at that time.

(d) As to oral examination and other particulars. – Errors and

irregularities occurring at the oral examination in the manner
of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of the
parties and errors of any kind which might be obviated,
removed, or cured if promptly prosecuted, are waived unless
reasonable objection thereto is made at the’ taking of the
deposition.

(e) As to form of written interrogatories. – Objections to the

form of written interrogatories submitted under [S]ections 25
and 26 of this Rule are waived unless served in writing upon
the party propounding them within the time allowed for
serving succeeding cross or other interrogatories and within
three (3) calendar days after service of the last interrogatories
authorized.

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

the manner in which the testimony is transcribed or the
deposition is prepared, signed, certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by the officer under
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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
CIVPRO |
RULE 24. DEPOSITIONS BEFORE ACTION OR PENDING
APPEAL
Two Types of Deposition Taking:
1. Deposition Pending Action
2. Deposition Before Action or Pending Appeal
In Rule 23, you take a testimony or deposition of people in
relation to a pending case. There is already a pending case in
court, so everything is based on a pending action.
The next rule (Rule 24) is deposition before a case is filed.
That is why it is called Depositions Before Action. Actually, the
concept of depositions before action is not really new. This is
also found in the Rules prior to 1997 but was found in another
rule. It was called Perpetuation of Testimony (Rule 134 of the
old Rules of Court). What the new rules did was simply to
transfer Rule 134 to Rule 24.
A deposition before action and a deposition pending appeal
are referred to as perpetuation of testimony or perpetua rei
memoriam because their objective is to perpetuate the
testimony of a witness for future use.
Depositions under this Rule are also taken conditionally to be
used at the trial only in case the deponent is not available.
Depositions under this Rule do not prove the existence of any
right or facts of the facts which they relate, as it can be
controverted at the trial in the same manner as though no
perpetuation of testimony was ever had.
However, in the absence of any objection to its taking, and
even if the deponent did not testify at the hearing, the
perpetuated testimony constitutes prima facie proof of facts
referred to in the deposition.
For example, the petitioner has a cause of action which has
not yet accrued. In such a case, inasmuch as he cannot bring
the action until the cause of action accrues, he may
perpetuate his testimony or that of another person (Feria,
2001 p. 534)
EXAMPLE: Suppose there is a case which I would like to file
against B. But for the moment I cannot file it yet. I intend to
file a case against him. So there is an expected case between
us in the future only there are certain things that I still have
to do. But if I file a case against B, I have some witnesses who
are all ready like A and C. But the trouble is, I learned lately
that A will die soon. He has cancer and C will have to leave
for abroad, never to come back. Definitely, if I will file the
case, there are no more witnesses available.
Q: Is there a way of taking testimony or deposition in advance
even before wala pang kaso?
A: YES, by applying Rule 24. I will file a petition before the
court known as Petition to Perpetuate the Testimony of A and
C. Well, even if there is as yet no case, I will just file a petition
under Rule 24. If I can prove really that the testimony would
be relevant or important the court will issue an order allowing
me to take deposition in advance.
Judge Q: Rule 24 covers deposition where there is no pending
case filed between the parties unlike the previous rule, the
deposition party is already a party to the case whereas in this
rule, depositions are intended to perpetuate the testimony of
a party or any person whose testimony will be used in a case
that will be filed in the future. That’s why Rule 24 addresses
the objective: to perpetuate the testimony of a witness for use
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
in the future. The most common ground asking for deposition
before action is that the witness whose deposition will be
taken is already frail or in advanced age and it could not be
ascertained whether he could survive the time when the case
will be finally filed against an expected party.
The deposition under this rule is also used for the same
purposes as those embodied in Secs. 4 and 5 of Rule 23.
Section 1. Depositions before action; petition. – A
person who desires to perpetuate his or her own testimony or
that of another person regarding any matter that may be
cognizable in any court of the Philippines, may file a verified
petition in the court of the place of the residence of any
expected adverse party.
Judge Q: It is clearly stated in Section 1 that the proceedings
will be initiated by the filing of a verified petition unlike in Rule
23 there is already a pending case that is why the deposition
can be initiated through the filing of a proper motion. That is
understandable since there is no case yet.
Note: Petition to take deposition before action:
1. Must be done with leave of court
2. In the court of the place where the expected adverse
party resides
It is reasonable for the petition to be filed in that venue so
that it would compel the expected adverse party to attend or
participate in the deposition taking. He will not have any
excuse not to attend. Of course, the person who is considered
as an expected adverse party would naturally resist because
he is not interested to participate in such proceedings. You
see, if a proceeding is initiated where a lawsuit is forthcoming,
you would naturally resist and perhaps make some excuses so
in order to arrest that possibility, it then should be filed at the
court where he is a resident.
What are the purposes of the petition?
A petition may be filed by any person:
1. Who wants to perpetuate his own testimony
2. Who wants to perpetuate the testimony of another
person
It may be availed only in civil cases and not in criminal cases.
Where will you file it?
In the court of the place of the residence of any expected
adverse party because there is still no case. So you have to
file an independent petition under Rule 24.
Formal and Jurisdictional Requisites
Section 2. Contents of petition. – The petition shall be
entitled in the name of the petitioner and shall show: (a) that
the petitioner expects to be a party to an action in a court of
the Philippines but is presently unable to bring it or cause it to
be brought; (b) the subject matter of the expected action and
his or her interest therein; (c) the facts which he or she desires
to establish by the proposed testimony and his or her reasons
for desiring to perpetuate it; (d) the names or a description of
the persons he or she expects will be adverse parties and their
addresses so far as known; and (e) the names and addresses
of the persons to be examined and the substance of the
testimony which he or she expects to elicit from each, and
shall ask for an order authorizing the petitioner to take the
depositions of the persons to be examined named in the
petition for the purpose of perpetuating their testimony.
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Contents:
1. that the petitioner expects to be a party to an action in a
court of the Philippines but is presently unable to bring it
or cause it to be brought;
2. the subject matter of the expected action and his or her
interest therein;
3. the facts which he or she desires to establish by the
proposed testimony and his or her reasons for desiring to
perpetuate it;
4. the names or a description of the persons he or she
expects will be adverse parties and their addresses so far
as known; and
a. he must include in the petition the parties expected to
be an adverse party so that he can participate and
notice is sent to that particular person. That is to
satisfy the requirement of due process.
5. the names and addresses of the persons to be examined
and the substance of the testimony which he or she
expects to elicit from each, and shall ask for an order
authorizing the petitioner to take the depositions of the
persons to be examined named in the petition for the
purpose of perpetuating their testimony.
The petition shall be verified and shall be filed in the place of
residence of any expected adverse party. It shall contain the
matters set forth in Sec. 2 of Rule 24.
Judge Q: So what is now the next step upon filing of the
petition and it has complied with the requirements? *Reads
Section 3*
Section 3. Notice and service. – The petitioner shall serve
a notice upon each person named in the petition as an
expected adverse party, together with a copy of the petition,
stating that the petitioner will apply to the court, at a time and
place named therein, for the order described in the petition.
At least twenty (20) calendar days before the date of the
hearing, the court shall cause notice thereof to be served on
the parties and prospective deponents in the manner provided
for service of summons.
Note: The petitioner shall serve a notice upon each person
named in the petition as an expected adverse party, together
with a copy of the petition, stating that the petitioner will apply
to the court, at a time and place named therein, for the order
described in the petition.
The court will decide whether the deposition shall be by oral
examination or by written interrogatories.
Judge Q: Notice of the filing of the petition is important. If you
may recall, the preferred mode of service of summons is
through personal service and we have to take note of the
procedure to be observed. So in Section 3, there are two
service made on the expected adverse party: (1) service of
the copy of the petition to be made by the petitioner and (2)
the notice sent by the court setting the date of the hearing of
the petition.
Section 4. Order and examination. – If the court is
satisfied that the perpetuation of the testimony may prevent
a failure or delay of justice, it shall make an order designating
or describing the persons whose deposition may be taken and
specifying the subject matter of the examination and whether
the depositions shall be taken upon oral examination or
written interrogatories. The depositions may then be taken in
accordance with Rule 23 before the hearing.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Note: If the petition is granted, the court will now allow the
deposition of these people to be taken and they are taken
simply by following Rule 23.
Judge Q: What are the contents of the order?
a. Designates or describes the persons whose deposition
may be taken
b. Specifies the subject matter of the examination
c. Specifies whether the depositions shall be taken upon oral
examination or written interrogatories
There’s also an instance where the taking of the deposition
may be made prior to the hearing in Section 3 so for valid
reasons, the deposition may then be taken in accordance with
Rule 23 before the hearing. For instance, it is quite imminent
that the witness will not be able to survive in the coming days
so time is of the essence.
Section 5. Reference to court. – For the purpose of
applying Rule 23 to depositions for perpetuating testimony,
each reference therein to the court in which the action is
pending shall be deemed to refer to the court in which the
petition for such deposition was filed.
Note: Rule 23 says, “the court in which the action is pending.”
But there is still no pending action here. So it automatically
refers to the court in which the petition for the perpetuation
was filed.
Judge Q: There are parts of the provision which made
reference to Rule 23 stating that the rules stated in Rule 23
will also be applicable in Rule 24. However, for purposes of
clarity, Section 5 states that in the application of provisions
under Rule 23 for perpetuating testimony, each reference
therein to the court in which the action is pending shall be
deemed to refer to the court in which the petition for such
deposition was filed.
We have to take note of the difference. Under rule 23, the
court being referred to that will issue the order for deposition
taking shall be the court where the action is pending but under
Rule 24, we have no case yet. So if we apply Rule 23, we
should also modify to mean that the court being referred to in
Rule 23, so that it will be applicable in the current rule, is
deemed to refer to the court in which the petition for
deposition was filed meaning the court where the residents of
the adverse party is located.
Section 6. Use of deposition. – If a deposition to
perpetuate testimony is taken under this Rule, or if, although
not so taken, it would be admissible in evidence, it may be
used in any action involving the same subject matter
subsequently brought in accordance with the provisions of
[S]ections 4 and 5 of Rule 23.
Note: If deposition is taken under this Rule, it may be used in
any action involving the same subject matter subsequently
brought.
How do you use the perpetuation of testimony?
The same uses of an ordinary deposition- for impeachment,
for any other purpose like the witness is already dead- the
same under Rule 23. So the rule under Rule 23 is also
applicable to Rule 24.
Judge Q: So that’s the idea there that intention of taking the
deposition is to perpetuate the testimony in the event that the
person whose testimony is taken will no longer being alive
when the case is filed, then it may be used as his testimony
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pursuant to the provisions of Sec. 4 and 5 of Rule 23 in the
event that the case is filed.
Depositions under Rule 24 should be taken conditionally. I
WANT TO EMPHASIZE THIS PARTICULAR POINT because
they are to be used at the trial or proceeding only if deponent
is not available. So it is just a contingent measure employed
by the parties in accordance with the current rules under Rule
24 for the purposes of making a reservation in the event that
the witness whose deposition was taken will no longer be
available when the time comes that it is needed for its
presentation, then that’s the time that the deposition will be
used. But if the witness is still available during the case is
heard and his testimony will be heard, then it shall not take
the place of the oral testimony to be given in open court.
If the deposition is not taken in accordance with this Rule, it
may be used as prior inconsistent statements to impeach the
testimony of the deponent, provided the predicate is laid in
accordance with Section 13 of Rule 132. This is just an
explanation of this particular portion, “although not so taken
xxx” but the purpose of presenting it as evidence is only to
impeach the testimony of the deponent in the event that he
makes some inconsistent statement between his deposition
and his actual testimony given in open court. So that’s the
only purpose even if not made in accordance with the rules. A
deposition may still be used but only for that particular
purpose.
Section 7. Depositions pending appeal. – If an appeal
has been taken from a judgment of a court, including the
Court of Appeals in proper cases, or before the taking of an
appeal if the time therefor has not expired, the court in which
the judgment was rendered may allow the taking of
depositions of witnesses to perpetuate their testimony for use
in the event of further proceedings in the said court. In such
case the party who desires to perpetuate the testimony may
make a motion in the said court for leave to take the
depositions, upon the same notice and service thereof as if
the action was pending therein.
The motion shall state (a) the names and addresses of the
persons to be examined and the substance of the testimony
which he or she expects to elicit from each; and (b) the reason
for perpetuating their testimony. If the court finds that the
perpetuation of the testimony is proper to avoid a failure or
delay of justice, it may make an order allowing the depositions
to be taken, and thereupon the depositions may be taken and
used in the same manner and under the same conditions as
are prescribed in these Rules for depositions taken in pending
actions.
Note: Depositions are taken pending appeal with the view to
their being used in the event of further proceedings in the
court of origin or appellate court.
For example, a party may perpetuate the testimony of a
witness which was objected by the adverse party and ruled
out by the court. If the appellate court should reverse the
decision/order of the lower court, it could admit the deposition
as additional evidence or remand the case back to the lower
court for such admission in accordance with Sections 4 and 5
of Rule 23
Q: What is deposition PENDING APPEAL?
A: Obviously, there is a case already on appeal. So how do
you apply Rule 24 under this kind of situation?
EXAMPLE: There is a case between K and B. K lost. After he
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
received a copy of the decision, he discovered a material
witness whom he failed to present. So this is a newly
discovered evidence (NDE). Had K known of his existence, he
would have won the case. So, K will file a motion for new trial
based on NDE. If his motion is granted, there will be new trial.
But, if his motion is denied, K will appeal. While waiting for
the decision of the court, the witness tells him that he will be
leaving for Afghanistan and will come back no more. So, K will
use Section 7. He will file a motion asking to take the
deposition of a witness pending appeal in the event that his
motion for new trial is granted, because the witness has to go
and cannot wait for the new trial.
So in the event that if I win the appeal, the case will go back.
I can present the testimony because by that time he may
already be dead. In effect, para na ring deposition before
appeal. So it is also perpetuating the testimony of a possible
witness, in the event the appeal is decided in your favor.
That’s why it is called deposition pending appeal.
When Taken:
1. During the pendency of an appeal
2. Even before appeal is filed, but, the period to appeal
has not yet expired
Where to file
In the court which renders the judgment (court of origin, not
the appellate court)
How
Same as Rule 23
Deposition pending appeal means there was a case filed, in
fact, it has already been decided and the decision of the court
was appealed. The deposition is taken during the pendency of
the appeal even before it is filed but the period to appeal has
not yet expired.
Why do you have to take the deposition of a
prospective witness when there is no more trial?
There are times when the appellate court may require the
parties to present additional evidence. If you expect to present
additional testimonial evidence but that witness is dying or
about to leave the country and may not be available at the
time you will be required to present, then you can perpetuate
his testimony. This is under Rule 24.
Judge Q: There is already a case but the lower court has
rendered its decision and the aggrieved party has the relief of
appealing the case to a higher court or elevate the case to a
higher court in order to assail said decision. This is an instance
wherein if there is an appeal filed, there is a possibility that
the appellate court may direct the parties to adduce additional
evidence in order to be able to adjudicate or rule on the issues
raised on appeal. IOW, it is in anticipation of the order of the
appellate court to order additional evidence. These are taken
with the view to their being used in the event of further
proceedings in the court of origin or the appellate court.
Example: A party may perpetuate the testimony of a witness
which was objected by the adverse party and ruled out by the
court. If the appellate court should reverse the decision or
order of the lower court, it could admit the deposition as
ADDITIONAL EVIDENCE or remand the case to the lower court
for such admission in accordance with Secs. 4 and 5 of Rule
23. And since there is a directive remanding the case, there is
still a continuation of the proceedings and it could be that the
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parties are required to be able to present more evidence. This
is where deposition pending appeal will have basis because in
anticipation of these scenarios, of the ruling of the appellate
court, that the parties seeking for the deposition of a particular
person due to the fact that he might no longer be available
when the time comes that the particular evidence will be
presented in the course of the trial, that will be the basis of
the subject deposition.

So how is this objective of asking for the deposition pending

appeal if an appeal has been taken from a judgment of a court
including the CA in proper cases or even before the taking of
an appeal, if the time thereof has not expired, the court in
which the judgment was rendered may allow the taking of
depositions of witnesses to perpetuate their testimony for use
in the event of further proceedings. So the term further
proceedings are the different scenarios that may happen after
the appellate proceedings will be taken up or transpire such
as a remand or directing the parties to adduce additional
evidence. So the rule is not explicit as to how the party will
ask for the deposition taking but I would assume that it can
be made through a proper motion considering that there is
already a pending case. Sorry, I stand corrected. There is a
proper motion with leave of court to take the deposition upon
the same notice and service thereof as if the action was
pending therein.

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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RULE 25. INTERROGATORIES TO PARTIES
This is another procedure wherein a party can ask the
opposing party questions for purposes of eliciting facts from
him.
Going back to Rule 23, what are the modes of
deposition taking?
1. Deposition upon oral examination
2. Deposition upon written interrogatories
Section 1. Interrogatories to parties; service thereof.
– Upon ex parte motion, any party desiring to elicit material
and relevant facts from any adverse parties shall file and serve
upon the latter written interrogatories to be answered by the
party served or, if the party served is a public or private
corporation or a partnership or association, by any officer
thereof competent to testify in its behalf.
Purpose of written interrogatories
To elicit facts from any adverse party
Judge Q: So unlike the discovery procedure by way of
deposition, the person to be subjected to discovery is the
adverse party only. Deposition may be taken from the party
himself who is asking himself or any person for purposes of
using it in a case pending or before a case is filed to
perpetuate testimonies.
Distinguished from Bill of Particulars
The purpose of a BOP is for the party filing the motion to get
clarification or asking the opposing party to state his allegation
with particularity in order for him to make an intelligent
answer.
Now, with respect to interrogatories, this is not limited to the
allegations in the pleading to state it with particularity. In this
rule, the purpose is really to elicit the material and relevant
facts from any adverse party so it may relate to any matter
not even mentioned in the pleading but only for purposes of
being able to get a clearer picture of the evidence that may
be presented by the adverse party so that he can prepare for
trial so essentially that is the difference from bill of particulars.
The trial court order denying the written interrogatories was
interlocutory in nature. And the extraordinary writ of certiorari
is generally not available to challenge an interlocutory order
of a trial court, the proper remedy in such cases being an
ordinary appeal from an adverse judgment where
incorporated in said appeal are the grounds for assailing the
interlocutory order. Nonetheless, this by no means is an
absolute rule. This court finds that the order disallowing
petitioner’s written interrogatories are patently erroneous,
hence the resort to certiorari is warranted. (Ong v Mazo)
In another case, in Locsin v Sandiganbayan, the court also
gave a guideline in an instance when Rule 25 can be availed
of. This case involved the failure of the party to make a
clarification by way of amending his complaint. The court said
that even if that particular party was unable to avail of the
remedy in amending the complaint can nevertheless obtain
his purpose of introducing the information that needs to be
introduced through either listing them ad admitted facts or he
can propose it as stipulation of facts during the pre-trial or he
can avail of written interrogatories under Rule 25 from the
opposing party on the proposed amendments. So this is a
practical application of Rule 25 just to give you an idea of the
usefulness of this particular mode of discovery.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
As discussed, leave of court is no longer necessary under the
Amendments since it is now upon ex parte motion.
Section 2. Answer to interrogatories. – The
interrogatories shall be answered fully in writing and shall be
signed and sworn to by the person making them. The party
upon whom the interrogatories have been served shall file and
serve a copy of the answers on the party submitting the
interrogatories within fifteen (15) calendar days after service
thereof, unless the court, on motion and for good cause
shown, extends or shortens the time.
Note: The interrogatories shall be answered fully in writing
and shall be signed and sworn to by the person making them.
Answers cannot be made by an agent or attorney; answers
not made by the parties are nullities. A judgment by default
may be rendered against a party who fails to answer written
interrogatories.
Judge Q: So perhaps the reason for the extension is that it
consists of several or voluminous pages or it will require him
to gather enough information for him to properly make an
answer to interrogatories and it is established that the 15-day
period provided under the laws would not be sufficient so that
would be upon motion of the adverse party for extension or
shortening of answer to interrogatories.
Is leave of court required before one can avail of
interrogatories to parties?
No. This is now upon ex parte motion.
Interrogatories to parties are written questions directly
addressed to your opponent in the case. Such opponent will
have to answer within 15 calendar days after service thereof,
unless the court, on motion and for good cause show, extends
or shortens the time.
Note: As compared to a bill of particulars which is directed to
a pleading and designed to seek for a more definite statement
or for particulars in matters not availed with sufficient
definiteness in a pleading, interrogatories are not directed
against a particular pleading and what is sought is the
disclosure of all material and relevant facts from a party.
Objection to Interrogatories
Section 3. Objections to interrogatories. – Objections to
any interrogatories may be presented to the court within ten
(10) calendar days after service thereof, with notice as in case
of a motion; and answers shall be deferred until the objections
are resolved, which shall be at as early a time as is practicable.
Suppose you do not want to answer my questions
because you believe my questions are improper, you
want to object to my questions, what is your remedy?
You go to the court where the case is pending and object. Let
the court decide whether you will have to answer or not.
Judge Q: So the adverse party to whom the written
interrogatory is directed and served before making an answer
can also interpose any objections upon any ground and he
must file his objection with notice to the adverse party within
10 days from service. Answers shall be deferred until the
objections are resolved, which shall be at as early a time as is
practicable. So it all depends upon the discretion of the court,
what timeline he will allow to the objections that will be made
and the actual answer to interrogatories which presupposes
that he has already made a ruling on said objections.
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Number of Interrogatories Difference between written interrogatories in Rule 23
Section 4. Number of interrogatories. – No party may, from interrogatories under Rule 25
without leave of court, serve more than one set of 1. There is a deposition officer in Rule 23 while there is none
interrogatories to be answered by the same party. in Rule 25
a. Less expensive option since there is no need for a
Note: Only ONE set of interrogatories by the same party is deposition officer
allowed. Leave of court is necessary for succeeding sets of 2. Written questions are coursed through a deposition
interrogatories. officer while in Rule 25, the questions are directed to the
opposing party
As a general rule, when you send questions to your opponent, a. Less expensive option since there is no need for a
you better compile because as a rule, no party is given the deposition officer
privilege of securing more than one set of interrogatories. b. Questions are prepared beforehand and are
submitted to the deposition officer who will ask the
Judge Q: How many questions? No limit but he may only serve deponent the questions and he will record the
one set of interrogatories because it is for practical reasons answers whereas under Rule 25, the questioning is
because you are already given an opportunity to serve written direct.
interrogatories, might as well incorporate all the facts you 3. Under Rule 23, questions may be addressed to any
need to elicit from him in one go and if you do it piecemeal, persons while in Rule 25 it should be addressed to a party
that would tantamount to unnecessarily dragging the only
proceedings further so it is provided under the Rules that the a. Under Rule 25, you can only ask questions to your
requesting party is only allowed to serve one set of opponent. You cannot ask questions to a stranger.
interrogatories. Exception is if he desires to serve another set, Unlike in Rule 23, you can take the deposition of any
then he can do so with leave of court and that now rests on person whether a party or not. In Rule 25, the
the sound discretion of the court, if he will allow. questioning is direct. Plaintiff questions the
defendant; defendant questions the plaintiff.
The rules will not however disclose the right of the opportunity
of the requesting party to file or to serve more than one set if Depositions Written
the interest of justice so requires. Of course, that all rests on Interrogatories
the sound discretion of the court. Upon whom Interrogatories Only to an
served are delivered to adverse party
Scope and Use of Interrogatories officer duly
Section 5. Scope and use of interrogatories. – authorized to
Interrogatories may relate to any matters that can be inquired take the
into under [S]ection 2 of Rule 23, and the answers may be deposition who
used for the same purposes provided in [S]ection 4 of the shall take note of
same Rule. the answer
thereto.
Judge Q: The scope of deposition is the same of that of Availability of Available No cross
interrogatories. In Gerochi v Department of Energy, the SC cross interrogation
ruled that although the field of inquiry that may be covered interrogation
by depositions or interrogatories is as broad as when the On whom Any party who Only on the party
interrogated party is called as witness to testify orally at trial, answers are was present or served
the inquiry must only extend to what is RELEVANT and binding was represented
MATERIAL to the issue subject of the suit as provided for in or who had due
Section 5 of Rule 25. The rule of relevancy and materiality, notice or had the
otherwise you would unduly harass or annoy that adverse opportunity to
party. serve cross-
interrogatories
Note: You can ask any question provided they are not Time to answer No specific period Within 15 days
privileged and they are relevant to the case. provided after service,
unless extended
What kind of questions can you ask under Rule 25 to or reduced by the
your opponent? court
The same questions that you can ask in Rule 23 Section 2
which is anything that is related to the claim or defense Effect of Failure to Serve Written Interrogatories
provided it is relevant and it is not privileged. Section 6. Effect of failure to serve written
interrogatories. – Unless thereafter allowed by the court for
Suppose there are already answers to the good cause shown and to prevent a failure of justice, a party
interrogatories given by your opponent, how do you not served with written interrogatories may not be compelled
use those answers? by the adverse party to give testimony in open court, or to
They have the same uses under Rule 23, Section 4- you can give a deposition pending appeal.
use it for impeachment, or any other purpose like to prove an
admission already made by the adverse party. Note: A party not served with written interrogatories may not
be compelled by the adverse party to give the testimony in
Since answers to interrogatories may be used for the same open court, or to give a deposition pending appeal.
purposes as depositions, they may also be the basis of a
summary judgment under Rule 35. This is to compel parties to avail of the modes of discovery. If
there are questions you really want to ask the opposing party,

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do not wait for trial to begin. If you do not avail of this mode
of discovery, the dire consequence is you will no longer be
allowed to compel the adverse party to give testimony in open
court or to give deposition pending appeal. The only exception
is when the court allows it for good cause shown and to
prevent a failure of justice.
Judge Q:
GR: Unless a party had been served written interrogatories,
he may not be compelled by the adverse party to : (a) give
testimony in open court; or (2) give a deposition pending
appeal.
Exc: The court allows it for good cause shown and to prevent
failure of justice.
So this is usually the common ground in relaxing this rule to
serve a higher purpose which is failure of justice.
Case Analysis: A person subpoenaed must be served with
written interrogatories:
a. To prevent fishing expeditions and needless delays
b. To maintain order and facilitate the conduct of trial
It will be presumed that a party who does not serve written
interrogatories on the adverse party beforehand will most
likely be unable to elicit facts useful to its case if it later opts
to call the adverse party to the witness stand as its witness.
Instead, the process could be treated as a fishing expedition
or an attempt at delaying the proceedings; it produces no
significant result that a prior written interrogatories might
bring. Since the calling party is deemed bound by the adverse
party’s testimony, compelling the adverse party to take the
witness stand may result in the calling party damaging its own
case.

If the plaintiff fails or refuses to answer the interrogatories, it

may be a good basis for the dismissal of his complaint for non-
suit unless he can justify such failure or refusal. The Rules of
Court prescribes the procedures and defines all the
consequence/s for refusing to comply with the different modes
of discovery. (Marcelo v Sandiganbayan)

As what I have mentioned in the previous lecture, that this

discovery procedure should not be ignored because failure to
comply may result to fatal consequences.

What about written interrogatories directed to defendant and

he refuses or fails to comply? You cannot find any provision
under Rule 25 but if you go to Rule 29, Section 5, this provides
for a general provision applicable to all modes of discovery but
it says that if any party fails to serve to interrogatories
submitted under Rule 25 after proper service of such, the
court on motion and notice, may strike out all or any part of
any pleading of that party or dismiss the action or proceeding
or any part thereof, or enter a judgment by default against
that party and in its discretion, order him or her to pay
reasonable expenses incurred by the other, including
attorney’s fees. So these are the sanctions that may be met
by the non-compliant party. This is what I was talking about
to emphasize the mandatory nature of these proceedings so
if a party avails, it is advisable for the opposing party to
cooperate because his failure to do so will result to fatal
consequences.

Note: In Afulgencia v Metropolitan Bank & Trust Co, this Court

stated that in “civil cases, the procedure of calling the adverse
party to the witness stand is not allowed, unless written
interrogatories are first served upon the latter.” The petitioner
Spouses Afulgencia sought the issuance of a subpoena duces
tecum and ad testificandum to compel the officers of the bank
to testify and bring documents pertaining to the extrajudicial
foreclosure and sale of a certain parcel of land. Metrobank
moved to quash the issuance of the subpoenas on the ground
of non-compliance with Section 6, Rule 25 of the Rules of
Court. In quashing the issuance of the subpoena, the Court
reminded litigants that the depositions are a mechanism by
which fishing expeditions and delays may be avoided. Further
written interrogatories aid the court in limiting harassment
and to focus on what is essential to a case.

Spouses Afulugencia
Rule: As a rule, in civil cases, the procedure of calling the
adverse party to the witness stand is not allowed, unless
written interrogatories are first served upon the latter.

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CIVPRO |
RULE 26. ADMISSION BY ADVERSE PARTY
Rule 26 is also known as REQUEST FOR ADMISSION.
Admission by adverse party or request for admission is similar
to interrogatories. You send questions to your opponent and
he’s bound to answer in writing within 15 days under oath but
the framing of the questions are different.
In a request for admission, you are requiring the opposing
party to admit the truth or authenticity of certain documents.
For example: “Do you admit the genuineness of the
documents marked as Annex A?” We are talking here of
DOCUMENTS which are NOT ACTIONABLE because if the
document is actionable then it has to be pleaded properly.
In other words, if I have 20 documents, to find out whether
you will admit them or not, I will send you a copy and ask,
“Do you admit the genuineness of this? Do you admit the
truth?” So, the main difference between Rule 26 and Rule 25
is in the framing of the question. If the question is framed in
such a way that the premise is laid down and I ask you
whether or not you admit, then the question is proper under
Rule 26. BUT if the question if framed in such a way that it is
not answerable by yes or no, then apply Rule 25.
Example: Suppose my question is like this, “Who was with
you?” That is proper under Rule 25. If I say, “A and B were
with you, admitted?” That is Rule 26. That is why the way the
questions were framed determines what kind of mode of
discovery you are going to apply.
Judge Q: This is the next mode of discovery procedure
wherein either of the parties requests the other or his adverse
party to make some admissions. This is another way of limiting
the scope of the trial because if there is admission on the
opposing party then the party requesting for admission need
not adduce evidence and in fact it will shorten the proceedings
so this is one way of abbreviating the proceedings because
the parties will no longer need to adduce evidence, iow
dispense with the presentation of evidence on the matters
being admitted subject the request of admission.
The purpose of this rule is to relive the parties of the costs of
proving facts which will not be disputed on trial and the truth
of which can be ascertained by reasonable inquiry. It relates
to the main issues, factual issues, and may also refer to other
issues indirectly related to the same.
Request for Admission
Section 1. Request for admission. – At any time after
issues have been joined, a party may file and serve upon any
other party a written request for the admission by the latter
of the genuineness of any material and relevant document
described in and exhibited with the request or of the truth of
any material and relevant matter of fact set forth in the
request. Copies of the documents shall be delivered with the
request unless copies have already been furnished.
Note: Leave of court is not necessary here. This is because
there is already an answer when you avail of this mode of
discovery. The issues have already been joined. You can
request for admission of the genuineness of any material and
relevant document.
Purpose of written request for admission
To expedite trial and relieve the parties of the costs of proving
facts which will not be disputed on trial and the truth of which
can be ascertained by reasonable inquiry
When may request be made?
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
At any time after the issues have been joined (after the
responsive pleading has been served).
So what will you request the other party to admit?
1. The genuineness of any material and relevant
document described and in exhibited with the
request and/or
2. of the truth of any material and relevant matter of
fact set forth in the request or
3. a matter of fact not related to any documents may
be presented to the other party for admission or
denial
When do you apply this mode of discovery?
At anytime after issues have been joined. Meaning, there is
already an answer.
What is the difference of Rule 25 and Rule 26?
In Rule 26, you are requesting for the admission of the
genuineness of any material and relevant document. In Rule
25, you are asking for the opposing party to answer some
questions maybe to admit certain facts but not documents.
Request for admission and actionable document
The former is proper when the genuineness of an evidentiary
document is sought to be admitted. If not denied under oath,
its genuineness is deemed impliedly admitted. Essentially it is
a mode of discovery; while the latter must be attached to the
complaint or copied therein. Its genuineness and due
execution is deemed impliedly admitted unless specifically
denied under oath, by the adverse party.
Judge Q: Careful reading of the said section will prove that
there is no need for the filing of a motion as the rule states.
Let me tell you beforehand that the matters that may be
covered by the request may relate to any relevant document.
Take note that it is not limited to the actionable document as
what we have learned in the past lectures. It may relate to
any document as long as it is material or relevant to the issues
to be resolved or to be taken up in the course of the trial and
in order for the other party to be given an opportunity to
assess on how to make these admissions, these documents
must be described in or exhibited in with the request so it’s
advisable to attach these documents in order to be fair to the
opposing party or the first type of request may relate to any
to the admission of the genuineness of any material or
relevant document or material and relevant matter of fact set
forth in the request. Take note that the subject matter of the
request for admission relates to factual issues so any request
that would seek for the admission of provision of law or any
legal issue or perhaps to elicit an opinion of the opposing party
is improper as it is not a proper subject matter of this
particular mode of discovery.
Now, you have noticed that the time within which the request
will be made is provided in the Section. It says at any time
after issues have been joined so after the answer or the
responsive pleading has been filed by the defendant. That is
the time when all of the issues have been joined because the
complaint states the cause of action and when the defendant
files his responsive pleading, he will state his counter-claims
or defenses.
So what are the issues that will be resolved by the court
because it has been properly denied or controverted or
counter argued in the responsive pleading? So take note of
these important requirements and requisites: period within
which to file to make a request and the coverage of the
request. And the last statement is also understandable. As
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what I’ve said earlier, to be fair to the opposing party, to give
him an opportunity to make a careful evaluation or
assessment and to guide him as to the manner of making said
admission, the rules provide that documents being cited as
part of the request should be delivered to the opposing party
unless it has been attached earlier, perhaps it was attached to
the pleading.
The rules relating to admission by adverse party should not
be used as to further delay the proceedings as what happened
in Limos v Spouses Odones. The Supreme Court said,
“Petitioners sought to compel respondents to deny once again
the very matters they had already denied, a redundancy (so if
the purpose of the request for admission is merely to elicit an
admission from the opposing party on matters that have
already been denied in their previous pleading then it would
already be a redundancy so you cannot expect them to make
an admission to a fact that was already covered in their
specific denials) , which if abetted, will serve no purpose but
to delay the proceedings and thus defeat the purpose of the
rule on admission as a mode of discovery which is ‘to expedite
trial and relieve parties of the costs of proving facts which will
not be disputed on trial and the truth of which can be
ascertained by reasonable inquiry.’”
So if the objective there is not to expedite the trial but merely
to drag the case because it has been proven to be a redundant
endeavor, then that would not serve the objective of the rules
so that is not allowed. A request of admission is not in
accordance with the rules if it is proven to be a redundancy.
As discussed, when request may be made? At any time after
the issues have been joined. (after the responsive pleading
has been served). The request for admission must be served
directly upon the party; otherwise the party to whom the
request is directed cannot be deemed to have admitted the
genuineness of any relevant document described in and
exhibited with the request or relevant matters of fact set forth
therein on account of failure to answer the request for
admission.
This is a very important portion of the rules because it must
properly comply with the procedure and to make a proper
request for admission, it must be served directly on the party.
What is the significance of compliance with this procedure?
Because if a proper request is made upon the party and he
fails to make the admission within a given period, what is the
effect? There is already an implied admission as we will see in
the succeeding section so one must prove that there is proper
service of the request upon the opposing party and it should
be made directly upon the party and we will learn later on that
service on the counsel of the party is not sufficient compliance
and once there is sufficient compliance, then the opposing
party is now obligated to make a proper admission or denial
as the case may be and if he fails to do so even if he does not
make an express denial pursuant to the Rules, there is already
an implied denial if he fails to do so within the given period.
Now, if the opposite happens, there is a request for admission
but it does not comply with the requirement that it should be
served directly upon the party, then the failure of the opposing
party to make a denial or admission as the case may be, will
not result to an implied admission. So that is the difference of
the result of the failure to follow or comply with the said rule.
Scope
a. admission of the genuineness of any material and
relevant document described in and exhibited with the
request
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
b. admission of the truth of any material and relevant
matter of fact set forth in the request
a. not legal matter or opinion because that is
specifically provided in the rules
c. a matter of fact not related to any documents may be
presented to the other party for admission or denial
a. even if it does not relate to any of the documents,
as long as it is considered a matter of fact that may
be classified as material or relevant, then it can also
be a proper subject matter or coverage of the
request
Procedure
In the case of Briboneira v CA, the SC said that the request
for admission must be served directly upon the party;
otherwise the party to whom the request is directed cannot
be deemed to have admitted the genuineness of any relevant
document described in and exhibited with the request or
relevant matters of fact set forth therein on account of failure
to answer the request for admission.
It’s quite clear that there must be compliance with the results
and the result is that if there is failure to comply, then the
opposing party cannot be considered as to have impliedly
admitted the request or the facts covered by the request.
May the COUNSEL of a party to whom a written request for
admission is addressed under Section 1, Rule 26 ANSWER
such request for his client?
Yes. However, as the Court has observed in Briboneria v CA,
Sec 1 of Rule 26 requires that the request for admission must
be SERVED directly upon the PARTY REQUESTED. (Service to
the lawyer is service to the client. Apparently, this is not the
case in this particular rule because there is a specific rule
which says that it must be served directly upon the party).
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.
Private respondents’ failure to serve copies of the request for
admission directly upon the petitioners themselves suffice to
strike out petitioners’ responses to said request. (Nestle
Philippines, Inc and Santos v CA and Sps Hemedez)
In the case of Duque v CA, records show that only the counsel
of the respondents was furnished copies of the requests.
Consequently, the requests for admissions made by the
petitioners were not validly served and therefore, private
respondents cannot be deemed to have admitted the truth of
the matters upon which admission were requested. Take note
of this ruling because it interprets the relevant provision under
Rule 26 that if there is no direct service to the party but only
to the counsel, it is not considered as a valid service and
therefore private respondents cannot be deemed to have
admitted the truth of the matters upon which admission were
requested.
In another ruling in Po v CA, a party should not be compelled
to admit matters of fact already admitted by his pleading
and… to make a second denial of those already denied in his
answer to the complaint. It becomes, therefore, unnecessary
to dwell on the issue of the propriety of an UNSWORN
response to the request for admission. A request for admission
that merely reiterates the allegations in an earlier pleading is
inappropriate under Rule 26, which, as a mode of discovery,
contemplates of interrogatories that would CLARIFY and tend
to shed light on the truth or falsity of the allegations in the
pleading.
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IOW, the requesting party making a request to matters that
have already been denied, cannot complain if the answer or
statements made by the opposing party does not comply with
the formal requirements because it says that it must be a
sworn statement so it cannot complain and say that there is
improper admission and since it does not comply with the
formal requirements, then Section 2 says that it tantamounts
to an implied admission. It cannot be considered as such
because in the first place, the request is not proper because it
covers facts that have already been admitted by his pleading.
Alright, take note. Even assuming that a reply to the request
is needed, it is undisputed that the DBP filed its Comment
either admitting or specifically denying again the matters
sought to be admitted and stating the reasons therefor. That
the Comment was not under oath is not a substantive, but
merely a formal, defect which can be excused in the interest
of justice conformably to the well-entrenched doctrine that all
pleadings should be liberally construed as to do substantial
justice. The filing of such Comment substantially complied
with Rule 26. (DBP v CA) In this case, instead of filing a sworn
statement as required in Section 2, instead filed a Comment.
The court said in DBP v CA you should not be too strict in
expecting the opposing party to comply with the rules because
the doctrine is pleadings should be liberally construed when
there is substantial compliance.
Implied Admission
Section 2. Implied admission. – Each of the matters of
which an admission is requested shall be deemed admitted
unless, within a period designated in the request, which shall
not be less than fifteen (15) calendar days after service
thereof, or within such further time as the court may allow on
motion, the party to whom the request is directed files and
serves upon the party requesting the admission a sworn
statement either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons
why he or she cannot truthfully either admit or deny those
matters.
Objections to any request for admission shall be submitted to
the court by the party requested within the period for and
prior to the filing of his or her sworn statement as
contemplated in the preceding paragraph and his or her
compliance therewith shall be deferred until such objections
are resolved, which resolution shall be made as early as
practicable.
Note: The request is deemed admitted if the party requested
fails to answer the request within fifteen calendar days after
service thereof.
So, if I send to you a request for admission, what is your duty?
Within 15 calendar days, you must answer my request under
oath whether admitting or denying my request. Take note,
“under oath.”
Suppose you ignore my request within 15 days. You did not
do anything. You did not bother to file any answer to my
request for admission. What is the effect of failure to answer
the request?
You are deemed to have admitted. There is an implied
admission of all the things that I asked you to admit. Section
2 says, each of the matters of which an admission is requested
shall be deemed admitted unless you file your answer to the
request. Meaning, if you will not answer my request, under
the law, all the matter which I request you to admit are
deemed impliedly admitted. That is the penalty for not
bothering to file your reply under Rule 26.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Bar Q: A sends a request for admission to B and B made
an admission. However, during the trial, A did not offer
in evidence the answers to the request. Can the court
take judicial notice of the answers?
Yes, under the Rules, you are already required to file and
serve. Therefore the court may now take judicial notice
because it already forms part of the record.
Po v CA
When a matter is already effectively denied in the pleading,
as in the case of an actionable document attached to the
compliant (i.e. Promissory note) but was specifically denied in
the answer, there is no need anymore to ask it again under
Rule 26. If requested and not denied, there is no admission.
Judge Q: So the rule is if you are being requested for
admission, you must file a sworn statement. That sworn
statement would depend on the response that you make,
whether you deny or admit or neither. At least set forth in
detail the reasons why you cannot truthfully admit or deny the
same. As long as it is a sworn statement, whatever the
contents of your document, it will now be considered as a
compliance or an action to the request which will not result to
an implied admission of the facts subject of the request. I
hope you got that. The minimum number of days to respond
is 15 days but at the option of the requesting party, he may
also provide for a longer period or upon proper motion, the
court will allow the same.
Second paragraph of Section 2: Instead of submitting a sworn
statement within the given period, the party has the option, if
he has good reasons to do so, file an objection to any request
for admission and the same should be submitted to the court
within the same period to submit a sworn statement and it will
suspend the running of the period within which to make a
sworn statement. And it is justifiable that the compliance of
the sworn statement may in the meantime be deferred until
such objections have been resolved by the court, perhaps
objections may relate to procedural issues, perhaps with
respect to the subject matter or coverage of the request, if
the request involves admission relating to legal issues or
asking for an opinion, that is not allowed. So he may raise that
in his objections.
If the admission relates to all of the issues involved to be
resolved in the court and there is implied admission owing to
the failure of the opposing party to file his sworn statement
as an action to the request for admission, then it will result to
a summary judgment since there is nothing left to be proven
in a full blown trial. Practically all of these issues have already
been admitted, then it may result to summary judgment.
Each matter must be denied specifically under oath setting
forth in detail the reason why he cannot truthfully admit or
deny. The silence of defendant on the plaintiff’s request for
admission amounts to an implied acceptance of the facts set
forth therein with the effect that plaintiff’s claim stood
undisputed. (Manzano v Despabiladeras)
Remedy of the party
The remedy of the party, in this case, is to file a motion to be
relieved of the consequences of the implied admission. The
amendment of the complaint per se cannot set aside the legal
effects of the request for admission since its materiality has
not been affected by the amendment.
Motion to be relieved of the consequences of implied
admission. The amendment of the complaint per se cannot set
aside the legal effects of the request for admission since its
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materiality has not been affected by the amendment. So what
if there is a pending request and an amendment was made on
the complaint. Would it now result to an abandonment of the
request? The rule says that as long as it will not affect the
materiality of the complaint as amended, then the opposing
party is not relieved of the consequences of an implied
admission in case he fails to submit a sworn statement within
the period provided under the Rules.
In Limos v Spouses Odones, under these rules, a party who
fails to respond to a Request for Admission shall be deemed
to have impliedly admitted all the matters contained therein.
In this case, the redundant and unnecessarily vexatious
nature of petitioners’ Request for Admission rendered it
ineffectual, futile, and irrelevant so as to proscribe the
operation of the implied admission rule in Section 2, Rule 26
of the Rules of Court. There being no implied admission
attributable to respondents’’ failure to respond, the argument
that a preliminary hearing is imperative loses its point. So
what the Supreme Court is actually saying is that the implied
admission rule will not be operative if it will be established that
the subject matter of the request covers matters that are
already redundant. So this is just a reiteration of what we have
discussed.
Withdrawal of Admission; Effect of Failure to File and
Serve Request for Admission
Section 3. Effect of admission. – Any admission made by
a party pursuant to such request is for the purpose of the
pending action only and shall not constitute an admission by
him or her for any other purpose nor may the same be used
against him or her in any other proceeding.
Note: Section 3 is for the purpose of evidence. An admission
made by a party pursuant to a request for admission is only
good for that case. It cannot be used in any other case or
proceeding. It limits therefore the effectivity of an admission.
It is only valid for the pending case.
Judge Q: What is the effect of an admission under Section 3?
An admission under this Section is for the purpose of the
pending action only and cannot be used in other proceedings.
In See Bay View Hotel Inc v Ker, an admission is in the nature
of evidence and its legal effects become part of the records
the case; hence, it could be availed of by any party including
the party who was subsequently impleaded. Even if he is not
a participant in the request for admission, either as a
requesting party or a requested party, even if he was just
impleaded subsequently, meaning he was not yet a party
when the request for compliance thereof was made. He just
entered into the picture later on, he can still avail of the
benefits of admission because it forms part of the records of
the case.
Section 4. Withdrawal. – The court may allow the party
making an admission under this Rule, whether express or
implied, to withdraw or amend it upon such terms as may be
just.
Is the party admitting allowed to withdraw, change or
amend his previous admissions?
Yes, but with leave of court.
Judge Q: Once again, this rests on the sound discretion of the
court because the phrase “as may be just” can be subject to
different applications.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Section 5. Effect of failure to file and serve request for
admission. – Unless otherwise allowed by the court for good
cause shown and to prevent a failure of justice, a party who
fails to file and serve a request for admission on the adverse
party of material and relevant facts at issue which are, or
ought to be, within the personal knowledge of the latter, shall
not be permitted to present evidence on such facts.
Can you withdraw the admission that you have made?
Yes
What is the effect of failure to file and serve a request
for admission?
The same as that of Rule 25.
Example: Let’s assume that there is a fact which I want to
prove and I know that you know but I do not know whether
you’ll admit it or not. Under the rules, I have to send you a
request for admission to confirm it.
Suppose I do not send you a request because anyway there
are very few lawyers who do that. So, I did not send a request
and then during the trial, I will just try to prove it. Then the
adverse party says, “What are you trying to prove? You should
have sent me a request for admission” And then you say that
you forgot to send one.
So, the adverse party objects. This is something which the
party could have admitted had I resorted to a request for
admission under Rule 26, and since I did not, then he can now
prevent me from proving it.
GR: If you did not serve a request for admission on the
adverse party of material and relevant facts at issue which
are, or ought to be, within the personal knowledge of the
latter, you shall not be permitted to present evidence on such
facts.
XPNS:
1. Unless otherwise allowed by the court for good cause
shown
2. To prevent a failure of justice
Judge Q:
Scope
Material and relevant facts at issue which are, or ought to be,
within the personal knowledge of the adverse party.
In the case of DBP v CA, the court said, “The rule authorizing
a party to call on the other party to make an admission implies
the making of demands for admission of relevant and material
matters of fact and NOT for admission of matters of LAW,
CONCLUSIONS, or OPINIONS. So it’s purely factual, matters
of fact, the coverage of this discovery procedure.
What are the sanctions? The party who fails to file and serve
a request for admission shall not be permitted to present
evidence on such fact. Evidence relating to the request for
admission when he fails to file and serve the same. Cannot
present evidence that there is an implied admission or that an
express admission was made if he failed to follow the
procedure.
Except that the court allows such request for good cause
shown and to prevent failure of justice. So recourse to this
common refuge of the rule that in order to promote
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substantial justice or prevent failure of justice, that could be a
justification to relax the rules.

To whom Request for Admission be Made

Reboneria v CA
A request for admission must be addressed to the party and
not to his lawyer. So, if the request was sent to the lawyer for
the adverse party and the latter did not answer, the failure to
answer will not matter as the request is not valid.

PSCFC Financing Corp v CA

However, if the request for admission was properly sent to the
party and the latter requested his lawyer to answer it, the
answer is valid. Under the Rules, a client can always act
through his lawyer and that he is bound by the actuation of
the latter.

Principles to Remember:
1. A request must be directed to the party whose admission
is sought. Service of request to any other person is not a
valid request at all.
2. A request must always be directed to the party whose
admission is sought, but the latter may delegate to his
lawyer the right to answer the request. Such is valid so
long as there is a valid authorization.

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RULE 27. PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS
Judge Q: Rule 27 relates to the production or inspection of
documents or things. This is only a short rule because it only
covers one section but it covers the procedure wherein a party
will be able to compel the opposing party to produce for the
production and inspection of documents things or property in
order for him to be able to explore all the possible factual
issues involving the controversy to be resolved by the court
where the case is pending.
It says a motion for production and inspection of documents
should not demand a roving inspection of a promiscuous mass
of documents. The rule says that it must be upon motion of
any party showing good cause. When you say good cause,
there must be some kind of limit as to the scope of production
or inspection. It should not be tantamount to a roving
inspection so if in case the party requesting for the production
would need some documents, it must be relevant to the issues
involved. Not all documents that are in the possession of the
opposing party, okay? The inspection should be limited to
those documents designated with sufficient particularity in the
motion, so it should not cover general types of documents. It
must be stated in particular which will be part of the motion
itself such that the adverse party can easily identify the
documents he is required to produce.
The reason behind this rule as mentioned in Solidbank
Corporation case, Rule 27 permits “fishing” for evidence. The
lament against a fishing expedition no longer precludes a part
from prying into the facts underlying his opponent’s case.
Mutual knowledge of all relevant facts gathered by both
parties is essential to proper litigation. To that end, either
party may compel the other to disgorge whatever facts he has
in his possession. However, fishing for evidence that is allowed
under the rules is not without limitations. So, in this sense
the requesting party is engaged in some sort of fishing
expedition but not that kind which the rules is prohibiting but
only for purposes of acquiring additional information which is
not readily accessible by that party because he has no means
to do so considering that those documents are in the
possession of the opposing party. Now, this is very common
procedure that has been adopted, especially with respect to
cases involving large corporations, perhaps dealing with issues
of fraud or misrepresentation on the part of the corporate
officers or any case involving banks or financial institutions
which involves relevant financial or bank documents. Now for
the other party to be able to acquire sufficient information that
is not privileged, this is the Rule that he can resort to. So he
will ask the court upon proper motion that he will get copies
of documents that are relevant or part of the case directing
the opposing party to produce copies of the documents *reads
provision*.
Distinguish Production or Inspection of Documents or
Things under Rule 27 from Subpoena Duces Tecum
under Rule 21
The following are the distinctions:
1. Rule 27 is essentially a mode of discovery whereas Rule
21 is a means of compelling production of evidence which
must be brought to court
2. Rule 27 is limited to parties in the action whereas Rule 21
may be directed to any person, whether a party or not
3. The order under Rule 27 is issued only upon motion with
notice to the adverse party whereas a subpoena under
Rule 21 may be issued upon an ex-parte application.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Production or Inspection of Subpoena Duces Tecum
Documents or Things
Essentially a mode of Means of compelling
discovery production of evidence
The rules are limited to the May be directed to a non-
parties to the action party
May be asked before and/or May be asked only during
during trial trial
The order under this rule is May be issued upon an ex
issued only upon motion parte application
with notice to the adverse
party
Also, the case of Security Bank Corporation v CA, the rule on
discovery “requires the parties to play the game with cards on
the table so that the possibility of fair settlement before trial
is measurably increased.” This is one way of preventing
needless cases or suits because if it can be carefully evaluated,
it will turn out that a complaint or defense has no basis based
on the totality of evidence that may be presented against the
complaint or the defense.
The provision shows that 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 therefore 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; so that’s the first part. Now,
the second part of this rule covers any party may move for
the issuance of an order permitting the opposing party to
enter upon designated land *reads section 1* so this is akin
to an ocular inspection. It is to be initiated by one of the
parties through the filing of a motion to allow the movant to
enter into the property of the opposing party. So this is very
common in cases of real property- to determine the state of
the land which is the subject of the dispute particularly the
boundaries or if there is any issue involving a structure of the
building, could also be the basis for an issuance of inspection.
So these are very common incidents in several cases wherein
a party may ask to be allowed to inspect and enter the
premises of a property so perhaps if it involves boundary
disputes or conditions of buildings or structures in a damage
suit so this is one way for the other party to be able to obtain
relevant information relating to the issues involved in the case.
So the order may cover any of these actions: inspecting,
measuring, surveying, or photographing the property or any
designated relevant object or operation thereon. I remember
one case that was pending in my court wherein there was a
prayer for PI because the structure built on the property that
is adjacent to the property of the complainant, according to
him, posed a hazard to his structure because of some faulty
manner in which the construction was undertaken and he
feared that if it will be indeed found out that the property was
not built pursuant to the Building Code of the Philippines, then
it would result to an unfortunate incident wherein his property
will be damaged in case the property collapses so he asked
the court to issue an order allowing him to make an inspection
bringing with him his engineers to ascertain whether the specs
were made pursuant to the standards under the law so that is
an example of discovery.
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All documents mentioned in a Deed of Assignment transferring
the credit of the plaintiff in a pending litigation should be
accessible to the defendant through a Motion for Production
or Inspection of Documents under Rule 27. So this is a
justification for the court to allow the party to be able to
inspect or demand production and inspect documents.
So in the case of Eagleridge Development Corporation v
Cameron Granville 3 Asset Management Inc, the Supreme
Court said, “Undoubtedly, the trial court had effectively placed
petitioners at a great disadvantage inasmuch as respondent
effectively suppressed relevant documents related to the
transaction involved in the case a quo. Furthermore, the
remedies of discovery encouraged and provided for under the
Rules of Court to be able to compel the production of relevant
documents had been put to naught by the arbitrary act of the
trial court.” So as you can see, the objective really is to compel
the contending party or adverse party to produce all the
documents that may help in the eventual resolution or
adjudication of the issues involved in the case. He shall not be
allowed to suppress anything that might be a tool of injustice
so for this purpose , if for good cause shown, the other party
has reason to believe that there are certain documents that
needs to be included in the case which was consciously not
included by the opposing party because it would be prove to
be damaging to this cause so this particular mode would be a
tool in order to aid the court and the parties to assess whether
it would be justifiable to proceed or just to settle.
Under Section 3, Rule 29, this talks about sanctions that may
be imposed on the party who refuses to comply with that
order. We will discuss that later on anyway it is worth
mentioning that the enumeration therein is not exclusive
because Section 3 provides the phrase “among others” so it is
non-exclusive or non-exhaustive so the judge may make
orders as are just.
The second part of the rule covers an order of entry upon
designated land or other property and I already mentioned
certain examples that may find application of this rule. Before
we continue, the order must be specific as to time, place,
manner of making inspections, etc. this is quite logical
because if you will not specify the time, perhaps, it will be
unfair to the person requested to produce to allow the entry
of his property. What if the requesting party will enter his
premises at 12mn? That would be impractical so that is why
the time, place and manner should be specified so the
opposing party will have ample opportunity to prepare these
documents and for convenience also of both parties.
Section 1. Motion for production or inspection; order.
– Upon motion of any party showing good cause therefor, the
court in which an action is pending may (a) order any party to
produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any
designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved
in the action and which are in his or her possession, custody
or control; or (b) order any party to permit entry upon
designated land or other property in his or her possession or
control for the purpose of inspecting, measuring, surveying,
or photographing the property or any designated relevant
object or operation thereon. The order shall specify the time,
place and manner of making the inspection and taking copies
and photographs, and may prescribe such terms and
conditions as are just.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Note: This rule applies only to a pending action and the things
or documents subject of the motion must be only those within
the possession, control, or custody of a party.
Production of documents affords more opportunity for
discovery than a subpoena duces tecum as will be shown later
when the two are distinguished.
However, the rule is not intended for use as a dragnet or any
fishing expedition.
The documents to be produced:
1. Should not be privileged
2. Should constitute or contain evidence material to any
matter involved in the action, and which are in his
possession, custody or control
When can you avail of this?
When the documents presented by the opposing party are not
very clear, you can file a motion for requesting the party to
produce the document in court for inspection so that you can
have it photocopied in a brand new photocopier.
Note: The Court ruled that the availment of a motion for
production, as one of the modes of discovery, is not limited to
the pre-trial stage. Rule 27 does not provide for any time
frame within which the discovery mode of production or
inspection of documents can be utilized. The rule only requires
leave of court.
Requisites for a valid inspection of documents or things
1. A motion (leave of court) must be filed
2. The motion must show good cause for its grant
3. Notice of motion must be furnished to all parties
4. The motion must sufficiently describe the documents or
things to be produced or examined
5. The documents or things to be examined must contain
evidence material to the pending action
6. The documents or things to be examined must not be
privileged
7. The documents or things to be examined must be in the
possession of the adverse party or, at least, under his
control.
A party has all the right to examine the documents presented
by the opposing party. If the subject matter of the case is a
thing that is not movable, you can request for ocular
inspection.
EXAMPLE: Harry Potter sued Voldemortz. The case involves
accounting. Voldemortz is in possession of several invoices
and receipts which he would present in trial. Harry wants to
get hold of and inspect all these documents. Since these are
not actionable documents, Voldemortz is not required to show
or include them in the pleadings. No need to plead. So, Harry
want to see these books, photographs, accounts, objects
which Harry know Voldemortz will present during the trial. If
Harry will ask Voldemortz to show these things, I don't think
Voldemortz will accommodate Harry.
Q: In the above example, what is the remedy of Harry?
A: Harry will apply Rule 27 by filing a motion in court stating
that Voldemortz is in the possession of such documents and
Harry would like to see, inspect or have them copied, provided
they are relevant and not privileged. And the court will issue
an order directing Voldemortz on a specified time on place to
bring them for purposes of inspection, survey, copying,
photocopying, etc. Voldemortz has no choice but to show
Harry all these objects.
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EXAMPLE: Harry sued Voldemortz for recovery of ownership

of land. Voldemortz in possession and such is in a position to
enable to properly describe the land and all its improvements.
Harry would like to see the property to inspect and survey the
same.

Q: What is Harry’s remedy?

A: File a motion in court to permit him (Harry) to enter the
land for purposes of inspecting, measuring, surveying or
photographing the property. And the court will issue an order
specifying the time, place and the manner of inspection. Now,
Harry will have an access to the documents, things, land, etc.
which are under Voldemortz’s control or possession.

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RULE 28. PHYSICAL AND MENTAL EXAMINATION OF
PERSONS
When Examination May be Ordered
Section 1. When examination may be ordered. – In an
action in which the mental or physical condition of a party is
in controversy, the court in which the action is pending may
in its discretion order him or her to submit to a physical or
mental examination by a physician.
Judge Q: So what are the instances? This is quite specific. It
only applies where the mental or physical condition of a party
is in controversy. The most common one is guardianship
proceedings or petitions for the declaration of incapacity of a
particular person due to the unsoundness of his mind or in
guardianship proceedings where petitioner asks where he be
appointed as guardian for purposes of managing the assets or
properties of the incompetent person. That is very relevant
because the basis of the grant of the petition is the mental
incapacity or physical condition of the award or person subject
to the guardianship so in order to ascertain, to help the court
in ascertaining the merit of the petition or controversy, the
court in which the action is pending may, in his discretion
order him to submit to a physical or mental examination by a
physician.
Requisites
1. There must be a pending action
2. A party’s mental or physical condition is in controversy.
Section 2. Order for examination. – The order for
examination may be made only on motion for good cause
shown and upon notice to the party to be examined and to all
other parties, and shall specify the time, place, manner,
conditions and scope of the examination and the person or
persons by whom it is to be made.
Note: Rule 28 applies in all actions where the mental or
physical condition of a party is in question or controversy.
Like in a civil case for Declaration of Nullity of Marriage on the
ground of psychological incapacity, you can be forced to
submit yourself to an examination by a psychologist or
psychiatrist. When the issue of the mental condition of the
person is involved such as when he is insane when he entered
into the contract, then you can request for an examination of
the mental condition of the person.
Suppose you are requesting for the examination of a
cadaver of a person, what rule will you use?
I do not think you can use Rule 28 because physical and
mental examination of a person here refers to a living person.
If the person is already dead, it can be considered a thing and
not a person. You can probably use Rule 27 which is the
production or inspection of a thing.
Requisites of physical and mental examination of persons
under Rule 28
1. A motion must be filed for the physical and mental
examination.
a. The physical or mental condition must be a subject
of controversy of the action
2. The motion must show good cause for the examination.
3. Notice of the motion must be given to the party to be
examined and to all other parties
a. To satisfy the due process requirements
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.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Judge Q: Take note, an order to submit to a physical
examination is an interlocutory order, thus no appeal is
allowed. As what I’ve said in previous lectures, an order that
does not dispose the main issues of the case should not be
subject to appeal because it is not a final decision or judgment
but merely an interlocutory order, any manner that is
incidental to the pending case which does not totally dispose
of the main issues of the case. So since it is not a final
judgment, it shall not be the subject matter of regular appeal.
Section 3. Report of findings . – If requested by the party
examined, the party causing the examination to be made shall
deliver to him or her a copy of a detailed written report of the
examining physician setting out his or her findings and
conclusions. After such request and delivery, the party causing
the examination to be made shall be entitled upon request to
receive from the party examined a like report of any
examination, previously or thereafter made, of the same
mental or physical condition. If the party examined refuses to
deliver such report, the court on motion and notice may make
an order requiring delivery on such terms as are just, and if a
physician fails or refuses to make such a report[,] the court
may exclude his or her testimony if offered at the trial.
Note: As the plaintiff, if you ask the court to let the defendant
submit himself for the mental or physical examination, the
defendant has the right to demand for a copy of the findings
of the doctor.
Judge Q: The party to be examined has the right to get a copy
as long as he makes a proper request. The requesting party
can also demand for the presentation or submission of other
mental or physical conditions that were previously made
thereafter.
Section 4. Waiver of privilege. – By requesting and
obtaining a report of the examination so ordered or by taking
the deposition of the examiner, the party examined waives
any privilege he or she may have in that action or any other
involving the same controversy, regarding the testimony of
every other person who has examined or may thereafter
examine him or her in respect of the same mental or physical
examination.
Rules governing the rights of parties on the report of the
examining physician regarding the physical or mental
condition of party examined:
e. The person examined, shall, upon request, be entitled to
a copy of the detailed written report of the examining
physician setting out his findings and conclusions
f. The party causing the examination to be made shall be
entitled upon request to receive from the party examined,
a like report of any examination previously or thereafter
made, of the same physical or mental condition
g. If the party examined refuses to deliver such report, the
court on motion and notice may make an order requiring
delivery;
i. If a physician fails or refuses to make such report, the
court may exclude his testimony if offered at the trial
h. The party examined who obtains a reports of the
examination or takes the deposition of the examiner
waives any privilege he may have in that action or any
other action 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.
i. Because by requesting for a copy of the examination,
that person who was examined is deemed to have
waived the physician-patient privilege.
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Judge Q: This section covers the issue of privilege. Can he
invoke the privileged communication that he is entitled? That
is not applicable because the main issue here is his mental or
physical condition. So if there is a request for the examination-
obtaining a report of the examination then he loses his
privilege under this section.

Pertaining to the different modes of discovery, when

is leave of court required? Not required?

1. Depositions
➢ Pending action, no REQUIRED
answer filed yet
➢ Pending action, NOT REQUIRED
answer filed already
➢ Before action or REQUIRED
pending appeal
2. Interrogatories
➢ No answer filed yet REQUIRED
➢ Answer filed NOT REQUIRED
already
3. Request for NOT REQUIRED
admission
4. Production or REQUIRED
Inspection of
Documents or Things
5. Physical and Mental REQUIRED
Examination of
persons

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RULE 29. REFUSAL TO COMPLY WITH MODES OF
DISCOVERY
Judge Q: As what we have mentioned in the previous lectures,
the modes of discovery is mandatory so no one can refuse
compliance of the modes of discovery. As what we’ve said, the
value of these rules of discovery is to aid the parties in
expediting the proceedings, limiting the issues, and to
perhaps, inspire the parties to settle the controversy once and
for all. So in order for the availment of the modes of discovery
to be effective, there must be sanctions involved.
Section 1. Refusal to answer. – If a party or other
deponent refuses to answer any question upon oral
examination, the examination may be completed on other
matters or adjourned as the proponent of the question may
prefer. The proponent may thereafter apply to the proper
court of the place where the deposition is being taken, for an
order to compel an answer. The same procedure may be
availed of when a party or a witness refuses to answer any
interrogatory submitted under Rules 23 or 25.
If the application is granted, the court shall require the
refusing party or deponent to answer the question or
interrogatory and if it also finds that the refusal to answer was
without substantial justification, it may require the refusing
party or deponent or the counsel advising the refusal, or both
of them, to pay the proponent the amount of the reasonable
expenses incurred in obtaining the order, including attorney’s
fees.
If the application is denied and the court finds that it was filed
without substantial justification, the court may require the
proponent or the counsel advising the filing of the application,
or both of them, to pay to the refusing party or deponent the
amount of the reasonable expenses incurred in opposing the
application, including attorney’s fees.
Refusal to Answer
➢ Movant of deposition upon oral examination may proceed
to ask questions on other matters
➢ Movant may ask from the court for an order to compel
from the deponent to answer. If the court finds the
refusal to answer unreasonable, it may order deponent
and counsel to pay reasonable expenses incurred by the
proponent in obtaining the order
➢ If the court finds the motion unjustifiable, it may order
the proponent to pay reasonable expenses in refusing the
motion.
Judge Q: The objective here is to compel if the deponent
refuses to answer. There must be an order of the court to
compel him to do so. If there is an order to compel and he
still refuses, then it a refusal to comply with the order of the
court which is a ground for direct contempt.
Second paragraph: because you have wasted and resources
of the opposing party for making a refusal that is not justified
so he should be able to shoulder or bear the burden of
expenses.
Third paragraph: so the scenario here is when there is no basis
to file an application, then they should also bear the burden
of reimbursing the opposing party of the expenses they have
incurred because they have to unnecessarily file their
opposition to the application.
Section 2. Contempt of court. – If a party or other witness
refuses to be sworn or refuses to answer any question after
being directed to do so by the court of the place in which the
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
deposition is being taken, the refusal may be considered a
contempt of that court.
Contempt
If the refusal to obey is wanton, the court may cite that person
in contempt of court.
Other Consequences:
1. If the refusing party is the plaintiff, the court may dismiss
his case
2. If the refusing party is the defendant, he may be declared
as in default
3. Refusal to allow the inspection of a thing or document
shall be taken to be established for the purposes of the
action in accordance with the claim of the party obtaining
the order
4. If a party refuses to admit the genuineness of a document
under Rule 16, the refusing party may be ordered to pay
the reasonable expenses incurred in making such proof,
including attorney’s fees.
Judge Q: Refusal to answer is a basis of that action. In the
case of Jaravata v Karolus, the Court said, “The CA was correct
in finding that the court a quo erred in rendering a judgment
by default against the defendants for refusal or failure to
answer written interrogatories, without first requiring an
application by the proponent to compel an answer. This is the
requisite procedure under Section 1 of Rule 29 of the 1997
Rules of Procedure.
The proper recourse should be to seek an order from the court
to compel the deponent to answer, not to right away issue or
render a judgment by default.
Require the party or his advising counsel or both to pay the
amount of reasonable expenses incurred including attorney’s
fees. We have already taken this one up.
Section 3. Other consequences. – If any party or an officer
or managing agent of a party refuses to obey an order made
under [S]ection 1 of this Rule requiring him or her to answer
designated questions, or an order under Rule 27 to produce
any document or other thing for inspection, copying, or
photographing or to permit it to be done, or to permit entry
upon land or other property, or an order made under Rule 28
requiring him or her to submit to a physical or mental
examination, the court may make such orders in regard to the
refusal as are just, and among others the following:
(a) An order that the matters regarding which the questions
were asked, or the character or description of the thing or
land, or the contents of the paper, or the physical or mental
condition of the party, or any other designated facts shall be
taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support
or oppose designated claims or defenses or prohibiting him or
her from introducing in evidence designated documents or
things or items of testimony, or from introducing evidence of
physical or mental condition;
(c) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing
the action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party; and
(d) In lieu of any of the foregoing orders or in addition thereto,
an order directing the arrest of any party or agent of a party
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for disobeying any of such orders except an order to submit
to a physical or mental examination.
Judge Q: “Among others” I mentioned that earlier so these
sanctions are non-exhaustive. So they can still issue orders or
sanctions that are not included in this enumeration.
So what are the instances wherein the court can issue such
sanctions in cases where a party refuses to obey an order
made under Section 1 of this rule requiring him to answer
designated questions apart from the one provided in Section
2 which is contempt of court and to pay reasonable fees. That
is provided in Section 1 so on top of that, the court can also
make some additional sanctions. So these are the cases *
reads the provisions in Section 3*
Paragraph a: so the sanction here is the matters, issuing an
order that the matters involved in the question or the
character or description, and physical and mental condition
are taken to be established. (already established) so that’s
very harsh because it will be prejudicial to your cause if you
are relying on a particular defense. That’s why you have to
comply.
Paragraph b: so that is also quite prejudicial if you are being
prohibited to introduce evidence relating to the documents
that are requested or to the mental and physical condition.
Paragraph c: another very fatal sanction. So one must be very
keen on following the order of the court in relation to these
modes of discovery. Otherwise, you face very serious
consequences.
Paragraph d: it even leads to arrest except if it is an order to
submit to a physical or mental examination. So that is the only
exception there.
Section 4. Expenses on refusal to admit. – If a party after
being served with a request under Rule 26 to admit the
genuineness of any document or the truth of any matter of
fact, serves a sworn denial thereof and if the party requesting
the admissions thereafter proves the genuineness of such
document or the truth of any such matter of fact, he or she
may apply to the court for an order requiring the other party
to pay him or her the reasonable expenses incurred in making
such proof, including [reasonable] attorney’s fees. Unless the
court finds that there were good reasons for the denial or that
admissions sought were of no substantial importance, such
order shall be issued.
Judge Q: This talks about Rule 26.
Requisites:
1. A party is served with a request under Rule 26 to admit
the genuineness of any document or truth of any matter
of fact
2. Such party serves a sworn denial thereof
3. The party requesting the admissions thereafter proves
the genuineness of such document or the truth of any
such matter of fact.
4. The party requesting the admissions applies to the court
for an order requiring the other party to pay him for the
reasonable expenses incurred in making such proof.
Note: The consequence under Section 4 for refusal to admit
is the payment of the expenses incurred in PROVING the
document or fact denied, as contrasted with the consequences
in the other modes of discovery. So the sanction involved here
is payment of reasonable expenses but it will also not prevent
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
the other party if there are available sanctions provided in the
other sections, particularly Section 3.
Section 5. Failure of party to attend or serve answers.
– If a party or an officer or managing agent of a party willfully
fails to appear before the officer who is to take his or her
deposition, after being served with a proper notice, or fails to
serve answers to interrogatories submitted under Rule 25
after proper service of such interrogatories, the court on
motion and notice, may strike out all or any part of any
pleading of that party, or dismiss the action or proceeding or
any part thereof, or enter a judgment by default against that
party, and in its discretion, order him or her to pay reasonable
expenses incurred by the other, including attorney’s fees.
Judge Q: Let us compare this to Section 1 because Section 1
talks about the refusal to answer or a person refusing to
answer any interrogatory. This only talks about refusal to
answer a question. That presupposes that he is compliant in
appearing during the date designated by the court for
deposition taking. It is only that he refuses to answer a
particular question or interrogatory.
So Section 5 talks about a party who actually refuses to appear
before the officer who is to take his or her deposition after
being served with the proper notice or fails to serve answers
to interrogatories submitted under rule 25. So altogether, he
is refusing to allow for the taking of his deposition or to refuse
to answer interrogatories upon proper service. So the court,
may, on motion or notice, strike out all or any part of the
pleading of the party; or dismiss the action or proceeding or
any part thereof; or enter a judgment by default or in his
discretion, order him or her to pay reasonable expenses
incurred by the other including attorney’s fees.
So we have to also consider the sanctions involved.
Section 6. Expenses against the Republic of the
Philippines. – Expenses and attorney’s fees are not to be
imposed upon the Republic of the Philippines under this Rule.
Judge Q: Let us take up some cases involving sanctions.
In Capitol Hills Golf & Country Club, Inc v. Sanchez, the court
said, “To ensure the availment of the modes of discovery is
otherwise untrammeled and efficacious, the law imposes
serious sanctions on the party who refuses to make discovery,
such as dismissing the action or proceeding or part thereof, or
rendering judgment by default against the disobedient party;
contempt of court, or arrest of the party or the agent of the
part; payment of the amount of reasonable expenses incurred
in obtaining a court order to compel discovery; taking the
matters inquired into as established in accordance with the
claim of the party seeking discovery; refusal to allow the
disobedient party to support or oppose designated claims or
defenses ; striking out pleadings or parts thereof ; staying
further proceedings.”
So if there is refusal the court should evaluate first if there is
unjust refusal because if there is a refusal on account of the
fact that the documents sought were not particularly
described in the motion, then there is a reason why they
cannot comply. What if the motion just mentions in sweeping
terms ‘all documents related to this account or account
number,’ that is quite broad so it is very unfair of the part of
the requested party to prepare all these documents so that’s
why it must be particularly described. So perhaps to state with
particularity, transactions involved for this period, then it is
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probably fair. So if there is a refusal, that would not result to
the imposition of sanctions provided under Rule 29.
For the last part of the lecture, the ruling in Lanada v CA
guides everyone with respect to the application of the sound
judicial discretion taking into account the overriding interest
of justice the circumstances of each case. It stated, “The
determination of the sanction a court should impose for failure
of a party to comply with the modes of discovery rests on
sound judicial discretion, taking into account the overriding
interest of justice and the circumstances of each case.”
SUMMARY:
A. Refusal to answer any question
Upon refusal to answer, the proponent may apply to the court
for an order to compel an answer.
If the application is granted, the court shall:
a. Require the refusing party or deponent to answer the
question or interrogatory, and
b. If it also finds that the refusal to answer was without
substantial justification, the court may require the
refusing party to pay the proponent in the amount of
the reasonable expenses incurred in obtaining the
order, including attorney’s fees
c. If denied and filed without substantial justification,
the court may require the proponent to pay the
refusing party the amount of the reasonable
expenses incurred in obtaining the order, including
attorney’s fees.
The court on motion and notice may:
a. Strike out all or any part of any pleading of that party
b. Dismiss the action or proceeding or any part thereof
c. Enter a judgment by default against that party
d. In its discretion, order him or her to pay reasonable
expenses incurred by the other, including attorney’s
fees.
If a party refuses to answer the whole written
interrogatories, Sec. 5 of Rule 29 applies
Where a party refuses to answer a particular question in the
set of written interrogatories and despite an order compelling
him to answer, still refuses to obey the order, Sec. 3 (c) will
apply.
Expenses and attorney’s fees are not to be imposed upon the
Republic of the Philippines.
The consequences under Section 5 will apply if a party refuses
to answer the whole set of written interrogatories, and not
just a particular question. Where the party upon whom the
written interrogatories is served, refuses to answer a
particular question in the set of written interrogatories and
despite an order compelling him to answer the particular
question, still refuses to obey the court, Sec. 3 (c) of Rule 29
will apply.

The refusal may be considered a contempt of that court.

B. Refusal to be sworn

The refusal may be considered a contempt of that court.

C. Refusal to answer designated questions or refusal

to produce documents or to submit to physical or
mental examination

The court may make such orders in regard to the refusal as

are just, and among others the following:
1. Prohibit the disobedient party from introducing evidence
of physical or mental condition
2. Refuse to allow the disobedient party to support or
oppose claims or defenses
3. Strike out pleadings or parts thereof
4. Stay further proceedings
5. Dismiss the action or proceeding or any part thereof
6. Render a judgment by default against disobedient party
7. Direct the arrest of any party or agent of a party
disobeying any of such orders except an order to submit
to a physical or mental examination

D. Refusal to admit under Rule 26

The court, upon proper application, may issue an order

requiring the other party to pay him reasonable expenses
incurred, including attorney’s fees PROVIDED that the party
requesting proves genuineness of such document of truth
UNLESS the court finds:
a. There were good reasons for denial
b. Admissions sought were of no importance

E. Failure of party to attend or serve answers to

written interrogatories
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RULE 30. TRIAL
What is a trial?
A trial is the judicial process of investigating and determining
the legal controversies, starting with the production of
evidence by the plaintiff and ending with his closing
arguments. It refers to the stage in the litigation process
where the parties will be presenting their evidence-in-chief.
It can also be defined as the judicial examination and
determination of the issues between the parties to the actions.
Simply put, a trial is the judicial process of investigating and
determining the legal controversies between or among the
parties. During the trial, the parties present their respective
evidence of their claims and defenses. Such claims and
defenses shall constitute the bases for the judgment of the
court. The purpose of a trial is for the court to resolve that
issue.
Trial and hearing
The terms ‘trial’ and ‘hearing’ are sometimes interchangeably
used. There is, however, a marked difference between these
terms. Trial is the reception of evidence and other processes,
as it embraces the period for the introduction of evidence by
both parties. Hearing is a broader term and is not confined to
the trial and presentation of the evidence because it actually
embraces several stages in the litigation. It includes the pre-
trial and the determination of granting or denying a motion.
Judge Q: So any incident that transpires before the court
whether it is acting on a motion will be considered as hearing
so the term hearing has a broader scope.
When trial is necessary/ unnecessary
1. Generally, a trial is necessary when there are issues to be
tried as a result of the specific denials of the material
allegations in the complaint. Where no issues are
presented in the case because the defending party’s
answer to the complaint tenders no issue, there is no
reason to conduct a trial since there is no triable issue. In
such a case, the court may, on motion, render a judgment
on the pleadings.
2. A civil case may be adjudicated upon without the need
for a trial in any of the following cases:
a. Where the pleadings of the parties tender no issue
at all, a judgment on the pleadings may be directed
by the court
b. Wherefrom the pleadings, affidavits, depositions
and other papers, there is actually no genuine
issue, the court may render a summary judgment
c. Where the parties have entered into a compromise
or amicable settlement either during the pre-trial or
while the trial is in progress
d. Where the complaint has been dismissed with
prejudice, or when the dismissal has the effect of an
adjudication on the merits
e. Where the case falls under the operation of the rules
on summary procedure
f. Where the parties agree, in writing, upon the facts
involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the
introduction of evidence.
If the parties agree only on some of the facts in
issue, the trial shall be held as to the disputed facts
in such order as the court shall prescribe.
g. When there is a judgment on confession
Schedule of Trial
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Section 1. Schedule of trial. – The parties shall strictly
observe the scheduled hearings as agreed upon and set forth
in the pre-trial order.
(a) The schedule of the trial dates, for both plaintiff and
defendant, shall be continuous and within the following
periods:
i. The initial presentation of plaintiff’s evidence shall
be set not later than thirty (30) calendar days after
the termination of the pre-trial conference. Plaintiff
shall be allowed to present its evidence within a
period of three (3) months or ninety (90) calendar
days which shall include the date of the judicial
dispute resolution, if necessary;
ii. The initial presentation of defendant’s evidence
shall be set not later than thirty (30) calendar days
after the court’s ruling on plaintiff’s formal offer of
evidence. The defendant shall be allowed to present
its evidence within a period of three (3) months or
ninety (90) calendar days;
iii. The period for the presentation of evidence on the
third (fourth, etc.)-party claim, counterclaim or
cross-claim shall be determined by the court, the
total of which shall in no case exceed ninety (90)
calendar days; and
iv. If deemed necessary, the court shall set the
presentation of the parties’ respective rebuttal
evidence, which shall be completed within a period
of thirty (30) calendar days.
(b) The trial dates may be shortened depending on the
number of witnesses to be presented, provided that the
presentation of evidence of all parties shall be terminated
within a period of ten (10) months or three hundred (300)
calendar days. If there are no third (fourth, etc.)-party claim,
counterclaim or cross-claim, the presentation of evidence shall
be terminated within a period of six (6) months or one
hundred eighty (180) calendar days.
(c) The court shall decide and serve copies of its decision to
the parties within a period not exceeding ninety (90) calendar
days from the submission of the case for resolution, with or
without memoranda.
Note: The schedule of trial- the schedule of the presentation
of evidence of the plaintiff and the defendant- is already
provided in the pre-trial order of the court. So, during the pre-
trial conference, the parties will already agree with the judge
on the dates for the plaintiff to present his evidence, and the
dates for the defendant to present his evidence.
The parties must strictly adhere to the schedule of the
hearing agreed upon in the Pre-Trial.
a. Initial presentation of evidence for the plaintiff shall not
be later than 30 calendar days from the termination of
the pre-trial. Plaintiff shall have 90 days to finish
presenting his evidence, which includes the JDR, if
necessary.
b. The initial presentation of defendant’s evidence shall be
set not later than 30 calendar days after the court’s ruling
on the plaintiff’s formal offer of evidence. The defendant
shall be allowed to present its evidence within a period of
3 months or 90 calendar days.
• Before the defendant will present his evidence, right
after the plaintiff will finish presenting his last
witness or evidence, the plaintiff will now have to
formally offer his exhibits.
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What do you mean by formal offer of exhibits?
Formal offer of exhibit means that you will now offer to the
court all documentary exhibits that you have marked during
the trial. And then, you offer these exhibits, and then you state
what is the purpose of offering these exhibits.
Now, under the amendment, you have to offer your exhibits
orally. The court will then rule on the admissibility or non-
admissibility of the exhibits. After the ruling of the exhibits,
the defendant will now present his evidence. The initial
presentation of defendant’s evidence shall be set not later
than 30 calendar days after the court’s ruling on the plaintiff’s
formal offer of evidence. The defendant shall be allowed to
present his evidence within a period of also 90 days.
Judge Q: This is very crucial because any evidence offered but
not formally offered cannot be considered as part of the
evidence or in the judgment so it is a necessary requirement
after the party has presented their documents and objects and
testimonies in the course of the trial to formally offer. When
you say formally offer, you also state the purpose in which it
is presented. This one will be discussed further in evidence.
After the formal offer, the court will now render its ruling
taking into consideration the rules on evidence particularly the
admissibility of evidence so the ruling will focus more on the
kind of evidence being presented and its purpose. When we
say the kind, is it admissible under the rules on evidence? or
is it only hearsay? so the court will now rule whether or not it
is admissible. Also, for the purpose, the court will rule whether
the evidence is relevant or not. After, the court will issue its
order, that’s the time the plaintiff has rested his case so it has
already exhausted all of its evidence presented. Rested his
case means he has exhausted the presentation of evidence,
cannot present any more evidence except for certain instances
c. The period for the presentation of evidence on the third
(fourth, etc-) party claim, counterclaim or cross-claim
shall be determined by the court, the total of which shall
in no case exceed 90 calendar days
d. If deemed necessary, the court shall set the presentation
of the parties’ respective rebuttal evidence, which shall
be completed within a period of 30 calendar days.
• If the plaintiff feels that there is a need to rebut the
evidence of the defendant, he may ask the court
that he be given time to rebut the evidence. So, he
will have time for rebuttal evidence
• Likewise, if the defendant feels there is also a need
to rebut the rebuttal evidence of the plaintiff, then
he will ask for presentation of sur-rebuttal evidence.
All of this should be done within a period of thirty
calendar days.
N.B.: This has to be strictly observed because under the
amendment, the presentation of evidence of all parties shall
be terminated within a period of ten months or three hundred
calendar days.
The court shall decide and serve copies of its decision to the
parties within a period not exceeding ninety calendar days
from the submission of the case for resolution, with or without
memoranda.
So, a total of 13 months, the case will be finished.
Effects of Non-Compliance with the Period Limits
1. Does not render the proceedings invalid
2. Not divest the court of its authority to hear and decide
the case
3. Proceeding beyond such maximum period is still valid and
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
4. Any decision that the court may eventually render in the
case is still valid and binding
5. May impose administrative sanctions on the presiding
judge concerned, if the delay in the termination of the
case is unjustified
Adjournments and postponements
Section 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 [(1)] month for each adjournment, nor more
than three [(3)] months in all, except when authorized in
writing by the Court Administrator, Supreme Court.
The party who caused the postponement is warned that the
presentation of its evidence must still be terminated on the
remaining dates previously agreed upon.
Note: There can be an adjournment or postponement of the
trial of the case.
Judge Q: If you remember in the rules of pre-trial, the pre-
trial order already gives us the pre-trial dates that shall be
strictly observed and there is a strict policy in postponement.
In fact, motion for postponement is prohibited except force
majeure, acts of God or physical inability but Section 2 allows
for the continuation of the presentation of the evidence. So it
may continue but the court may adjourn from day to day so it
must be expeditious and convenient business transaction and
the court is court is allowed to continue no longer than one
month or no longer than 3 months all in all.
GR: The general rule is that a court may adjourn a trial from
day-to-day, and to any stated time, as the expeditious and
convenient business of transaction may require.
Limitation: The court has no power to adjourn a trial for a
period longer than one month for each adjournment, nor more
than three months in all, except when authorized in writing by
the Court Administrator of the Supreme Court. There is now a
warning that the movant must still have to finish the
presentation of his evidence within the period allocated to
him.
Postponement or continuance; not a matter of right
Postponement is not a matter of right. It is addressed to the
sound discretion of the court which should always be
predicated on the consideration that more than the mere
convenience of the courts or of the parties, the ends of justice
and fairness should be served thereby. Furthermore, this
discretion must be exercised intelligently. In the absence of
grave abuse of discretion, it cannot be controlled by
mandamus.
A motion for postponement should not be filed on the last
hour especially when there is no reason why it could not have
been presented earlier. A party asking for postponement has
no absolute right to expect that his motion would be granted.
Are adjournment and postponement the same?
Technically, they are more or less the same. But there is a
difference between the two, actually. Because adjournment
means continuance of the case for lack of material time.
Postponement, on the other hand, means there is already a
scheduled day, but for some valid reason, that scheduled date
of trial cannot proceed. Because the witness in in the hospital
or is in the ICU, or the lawyer is very sick, or whatever
for/some valid reason.
Role of judges in adjournments and postponements
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The Constitution guarantees the right of persons against
unreasonable delay in the disposition of cases before all
judicial, quasi-judicial or administrative bodies. Judges play an
active role in ensuring that cases are resolved with speed and
dispatch so as not to defeat the cause of the litigants. The
mandatory continuous trial system was adopted precisely to
minimize delay in the process and expedite the resolution of
cases in the trial courts by holding trials on scheduled dates
without needless postponements and terminating the entire
proceedings within ninety days from the initial hearing. The
need for speedy administration of justice cannot be ignored.
Excessive delay in the disposition of cases renders the rights
of people guaranteed by various legislations inutile
[Section 3. Requisites of motion to postpone trial for absence
of evidence. – Deleted]
Section 3. Requisites of motion to postpone trial for
illness of party or counsel. – A motion to postpone a trial
on the ground of illness of a party or counsel may be granted
if it appears upon affidavit or sworn certification that the
presence of such party or counsel at the trial is indispensable
and that the character of his or her illness is such as to render
his or her non-attendance excusable.
Postponement on the ground of illness
a. A motion for postponement must be filed
b. The motion must be supported by an affidavit or sworn
certification showing that (1) the presence of the party or
counsel at the trial is indispensable, and (2) that the
character of his illness is such as to render his non-
attendance excusable.
There are two conditions:
1. That the party must be one to testify on that scheduled
hearing- his presence must be indispensable
a. Because if, for example, the plaintiff already finished
testifying, it is already the turn of his or her second
witness, and the plaintiff becomes sick, he (plaintiff)
cannot ask for postponement because he is sick
because anyway, his presence during the trial is not
anymore necessary. He has already testified. He
cannot insist that as a plaintiff, I have the right to be
present at every stage of the hearing. No, that’s not
correct. Once you have already testified, your
presence is not anymore needed.
2. The character of the illness must be such as to render
his or her non-attendance excusable.
a. He must be very sick.
Supported by a Medical Certificate
And if the motion for postponement is based on the illness of
a party or counsel, it must be supported by a medical
certificate. And, what else? The medical certificate issued by
the doctor must be notarized or subscribed and sworn to
before a notary public.
However, a motion for postponement which is not verified
should be granted if it appears that the claim of the movant is
meritorious.
Judge Q: It may appear that the rule is quite stringent with
respect to postponements. As you can see, it requires
submission of affidavit of sworn certification. It’s so strict, the
rules say “requires.” Compliance of these requirements but in
reality, you cannot submit an affidavit if the party or counsel
is indisposed and this usually happens in the date of trial. The
policy really is that it should be left to the sound discretion of
the trial court. This is why in reality, this is not enforced but it
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
is part of the rules and it can be cited as basis for denying a
motion but in reality, it is still based on the sound discretion
of the trial court and if the judge is strict, he can cite this
particular provision. So that's the usual practice.
Hearing Days and Calendar Call
Section 4. Hearing days and calendar call. – Trial shall
be held from Monday to Thursday, and courts shall call the
cases at exactly 8:30 a.m. and 2:00 p.m., pursuant to
Administrative Circular No. 3-99. Hearing on motions shall be
held on Fridays, pursuant to Section 8, Rule 15.
All courts shall ensure the posting of their court calendars
outside their courtrooms at least one (1) day before the
scheduled hearings, pursuant to OCA Circular No. 250-2015.
Note: The hearing days shall only be from Mondays to
Thursdays (8:30 am and 2pm) because the last working day,
which is Friday, is devoted for motion day. And, the hearing
shall start promptly at 8:30 in the morning, or 2 if it is an
afternoon hearing.
Order of Trial
Section 5. Order of trial. – Subject to the provisions of
[S]ection 2 of Rule 31, and unless the court for special reasons
otherwise directs, the trial shall be limited to the issues stated
in the pre-trial order and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his or her
complaint;
(b) The defendant shall then adduce evidence in support of
his or her defense, counterclaim, cross-claim and third-party
complaint;
(c) The third-party defendant, if any, shall adduce evidence of
his or her defense, counterclaim, cross-claim and fourth-party
complaint;
(d) The fourth-party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them;
(e) The parties against whom any counterclaim or cross-claim
has been pleaded, shall adduce evidence in support of their
defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and 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.
Judge Q: Section 5 gives us a flow of the trial subject to the
provisions of Sec 2, Rule 31. This is just a detailed provision
with respect to the flow of presentation of evidence. So it's
now up to the court to manage the order of trial if in case
there are several defendants having separate defenses so the
court should determine the relative order of evidence.
What is the order of trial?
1. Plaintiff to present evidence
2. Defendant shall then adduce evidence
3. The third-party defendant, if any, shall adduce evidence
4. The fourth-party defendant, and so forth, if any, shall
present evidence.
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5. The parties against whom any counterclaim or cross-
claim has been pleaded shall adduce evidence in support
of his defense
6. The parties may then adduce rebutting evidence
7. Upon admission of evidence, the case shall be deemed
submitted for decision, unless the court directs the parties
to argue or to submit their respective memoranda.
N.B. The foregoing order of trial applies only to regularly
controverted claims. Also, take note that the law says “the trial
shall be limited to the issues stated in the pre-trial order.”
However, reverse trial is possible. This is availed of when
defendant alleges or adduces affirmative defenses, thus, the
order shall start with the defendant.
What is the difference between the evidence
mentioned in paragraph (f) and the evidence
mentioned in paragraphs (a) and (b)?
Paragraphs [a] and [b] refer to what we call EVIDENCE IN
CHIEF to prove your main cause of action or your defense. In
paragraph [f], the evidence is not evidence in chief but
REBUTTAL EVIDENCE to dispute the side of the other party.
Is a party allowed to present evidence in chief in the
rebuttal stage?
GR: No, because paragraph (f) provides that the parties may
then respectively adduce rebutting evidence only. If you have
evidence to prove your cause of action or defense, you should
have done it earlier.
XPN: “Unless the court, for good reasons and in the
furtherance of justice, permits them to adduce evidence upon
their original case” Meaning it permits them to adduce
evidence in chief but you need the permission of the court.
Give instances when the court may allow the party to
present additional evidence in chief during rebuttal to
prove his cause of action.
1. When it is newly discovered
2. When the evidence was omitted through inadvertence or
mistake
3. When the purpose is to correct evidence previously
offered
4. When the additional evidence offered is material and not
merely cumulative or impeaching
What is a memorandum?
A memorandum is practically a thesis where you will
summarize your position and you argue why you should win.
That is where you cite evidence. You convince the court that
you have proven your cause of action or defense. Then you
cite the testimonies, the exhibits, the transcripts and of
course, the argument, the jurisprudence, the law. That is
where you argue. You do not argue in your pleading.
Pleadings, complaint, answer is not the time to argue. There,
you only state the facts. You argue after the trial where you
interpret now the evidence and convince the court.
Oral Offer of Exhibits
Section 6. Oral offer of exhibits. – The offer of evidence,
the comment or objection thereto, and the court ruling shall
be made orally in accordance with Sections 34 to 40 of Rule
132.
Note: The offer of exhibits must be done orally, in open court.
And after you have formally offered your exhibits in open
court, the other party must immediately give their comment
or objection, and right then and there, the court will rule.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Judge Q: As what I have mentioned earlier, section 6 provides
that right after the presentation of evidence, formal offer of
exhibits shall follow.
Rules for offering testimonial evidence
- Must be made at the time that the witness is made to testify
orally
- Any objection thereto will have to be done verbally and the
court will also rule on it orally
- Offering such testimony is oral. The testimony itself is in a
judicial affidavit.
Rules for offering documentary and object evidence
The offer of all kinds evidence shall be done orally, in the same
way that the comments or objections thereto shall be done
orally, as well as the ruling of the court thereon.
Agreed Statement of Facts
Section 7. Agreed statement of facts. – The parties to
any action may agree, in writing, upon the facts involved in
the litigation, and submit the case for judgment on the facts
agreed upon, without the introduction of evidence.
If the parties agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order as the court
shall prescribe.
Note: This refers to stipulation of facts. This actually happens
during the pre-trial, as discussed. Trial can already be
dispensed with if, during the pre-trial, the parties could agree
on all the material facts of the case. So, there is no more
controverted facts.
N.B. Stipulation of facts are not permitted in the following
cases:
1. Annulment of marriage
2. Declaration of nullity of marriage
3. Legal separation
Judge Q: This is not often used by practitioners but could help
in the expedient resolution of the case because right after, the
parties may agree on the facts and submit it for judgment
without the introduction of evidence so even if they have
opposing views but they agree on the facts, they agree that
they share the same view on the facts, then what is to be
resolved is the application of facts on a given law. If this is the
case, there is no need to proceed to trial because there is
nothing to establish. So in this case, if there is an agreement
of the parties, they will submit to the court. However, if the
parties agree on only some of the facts, the trial shall be held
as to the disputed facts in such order as the court shall
prescribe so basically, these are matters that are set forth in
the pretrial. Even if there are certain factual issues that cannot
be agreed upon by the parties, if there are agreed facts and
others not, it is still helpful. This one is actually very helpful
for the speedy disposition of the case.
[Section 7. Statement of judge. – Deleted]
Section 8. Suspension of actions. – The suspension of
actions shall be governed by the provisions of the Civil Code
and other laws.
Note: The best possible ground for the parties to ask the
suspension of the hearing is found in Article 2030 of the New
Civil Code.
Article 2030, Civil Code. Every civil action or proceeding
shall be suspended:
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1. If willingness to discuss a possible compromise is
expressed by one or both parties; or
2. If it appears that one of the parties, before the
commencement of the action or proceeding, offered to
discuss a possible compromise but the other party
refused the offer.
The duration and terms of the suspension of the civil action or
proceeding and similar matters shall be governed by such
provisions of the rules of court as the Supreme Court shall
promulgate. Said rules of court shall likewise provide for the
appointment and duties of amicable compounders.
According to Article 2030 of the civil code, if at anytime while
the case is going on, one of the parties would like to discuss
a POSSIBLE AMICABLE SETTLEMENT OR COMPROMISE, they
can ask for the suspension of proceedings. Why? The court of
the law favors compromises or amicable settlements in civil
cases.
However, the reception of such evidence may be delegated
under the following conditions:
1. The delegation may be made only in default hearings, or
ex parte hearings and in any case where the parties agree
in writing
a. IOW, the defendant is already in default
2. The reception of evidence shall be made only by the clerk
of court, who is a member of the bar, of that court
a. This is true only in the RTC since in the MTC,
their clerks of court are not lawyers.
3. Said clerk shall have no power to rule on objections to
any question or to admission of evidence or exhibits; and
4. He shall submit his report and transcripts of the
proceedings, together with the objections to be resolved
by the court within 10 days from the termination of the
hearing.

So at anytime that one party expresses its desire to settle,

even in the middle of the case, the court is authorized to
suspend the action to give the parties opportunity to settle
because of the policy of the law to encourage the parties to
settle amicably.

What are the matters that cannot be the subject of

compromise?
Under Article 2035 of the New Civil Code, the following cannot
be the subject of compromise:
1. The civil status of persons (whether legitimate or
illegitimate)
2. The validity of a marriage or a legal separation
3. Any ground for legal separation
4. Future support
5. The jurisdiction of courts
6. Future legitime

Section 9. Judge to receive evidence; delegation to

clerk of court. – The judge of the court where the case is
pending shall personally receive the evidence to be adduced
by the parties. However, in default or ex parte hearings, and
in any case where the parties agree in writing, the court may
delegate the reception of evidence to its clerk of court who is
a member of the bar. The clerk of court shall have no power
to rule on objections to any question or to the admission of
exhibits, which objections shall be resolved by the court upon
submission of his or her report and the transcripts within ten
(10) calendar days from termination of the hearing.

Judge Q: If you remember in the rules, if there is an order of

default, the party who was declared in default can no longer
participate in the proceedings so there is no evidence on the
part of the respondent or if the party failed to appear on pre-
trial, the rule says that the court will allow the plaintiff to
present its evidence ex parte or if agreed in writing. So in
these instances, the court may delegate this to the clerk of
court who is a member of the bar. Usually in ex parte hearing
or order of default, there is no occasion for the clerk of court
to rule on the objection because there is no opposing party
but in the case if agreed in writing, the clerk of court may only
take note of it and then it will be referred to the presiding
judge.

GR: The judge shall personally receive and resolve the

evidence to be adduced by the parties.

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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RULE 31. CONSOLIDATION OR SEVERANCE
Consolidation is a procedural device, granted to the court, as
an aid in deciding how cases in its docket are to be tried, so
that the business of the court may be dispatched expeditiously
while providing justice to the parties. To promote this end, the
rule allows the consolidation and a single trial of several cases
in the court’s docket, or in the consolidation of issues within
those cases.
The actions to be consolidated must involve a common
question of law or fact. The rule is clear.
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.
Note: Consolidation means that when there are several
actions or cases pending before the same judge involving a
common question of law or fact, it may order a joint hearing
or trial.
GR: Consolidation is discretionary upon the court.
XPN: Consolidation becomes a matter of duty when the cases
are:
1. Pending before the same judge; or
2. Filed with different branches of the same RTC and one of
such cases has not been partially tried.
Purpose: to avoid multiplicity of suits, guard against
oppression or abuse, prevent delay, clear congested dockets,
simplify the work of the trial court and save unnecessary costs
and expenses, to attain justice with the least expense and it
contributes to the swift dispensation of justice and is in accord
with the aim of providing the parties the just, speedy, and
inexpensive determination of their cases before the courts.
Note: Now, the Supreme Court has invariably allowed the
consolidation of cases in different branches of the same court
or in even in different courts.
When is consolidation of actions proper?
Consolidation of actions is proper:
1. When two or more actions involve the same or a common
question of law or fact; and
2. The said actions are pending before the same court.
3. If filed with different courts, an authorization from the
Supreme Court is necessary.
Note: Consolidation will not apply when the cases were filed
in different courts.
Consolidation of actions vis a vis joinder of causes of action
Joinder of causes of action is like consolidation but the
consolidation was done at the time of the filing of the case.
But here, in consolidation, the different cases were already
filed, and it is the court or the other party who asked the court
for the consolidation of these cases.
The purpose of consolidation is to achieve the same effect of
permissive joinder of parties. That is why there is a connection
between consolidation and joinder of parties.
Note: In consolidation of cases, the case bearing the higher
docket number is consolidated with the case having the lower
docket number.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Companion Cases
When there are a lot of cases coming from different parties of
the country but with a common question of fact or law or legal
issue. These are then consolidated in the SC and decided
together for the first time. Thus, these are called companion
cases because the same issues are being raised in the
petitions.
Three ways of consolidating cases
1. By recasting the cases already instituted- reshaping of
the cases by amending the pleading and dismissing some
cases and retaining only one case. There must be joinder
of causes of action and of parties
2. By consolidation proper or by consolidating the existing
cases- it is a joint trial with joint decision, the cases
retaining their original docket numbers; and
3. By test-case method- by hearing only the principal case
and suspending the hearing on the other cases until
judgment has been rendered in the principal case. The
cases retain their original docket numbers.
Consolidation of cases on appeal and assigned to different
divisions of the SC and CA is also authorized.
Consolidation of Criminal and Civil Cases
Consolidation of criminal and civil cases is allowed, but the
degree of proof will differ.
Kinds of Consolidations
In the context of legal procedure, the term consolidation is
used in three different senses:
a. Where all except one of several actions are stayed until
one is tried, in which case the judgment in the one trial is
conclusive as to the others: quasi-consolidation
b. Where several actions are combined into one, lose their
separate identity, and become a single action in which a
single judgment is rendered. This is illustrated by a
situation where several actions are pending between the
same parties stating claims which might have been set
out originally in one complaint: actual consolidation
c. Where several actions are ordered to be tried together
but each retains its separate character and requires the
entry of a separate judgment. This type of consolidation
does not merge the suits into single action, or cause the
parties to one action to be parties to the other:
consolidation for trial
Teston v DBP
A court may order several actions pending before it to be tried
together where they arise from the same act, event or
transaction, involve the same or like issues and depend largely
or substantially on the same evidence, provided that the court
has jurisdiction over the cases to be consolidated and that a
joint trial will not give one party an undue advantage or
prejudice the substantial rights of any of the parties.
However, consolidation should be denied when prejudice
would result to any of the parties or would cause
complications, delay, cut off, or restrict the rights of a party.
Section 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.
Note: This is for convenience or to avoid prejudice.
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When a separate trial of claims is conducted by the court
under this section, it may render separate judgments on each
claim (see Sec. 5, Rule 36)

This provision permitting separate trials presupposes that the

claims involved are within the jurisdiction of the court. When
one of the claims is not within its jurisdiction, the same should
be dismissed, so that it may be filed in the proper court.

Example: Paspasero bus, owned by Paspasero, Inc. collided

with Danghag bus, owned by Danghag, Inc., resulting in the
instantaneous death of Johnny, an alleged passenger of
Danghag bus.

The heirs of Johnny filed a civil case for damages against

Danghag, Inc., based on culpa- contractual. Danghag, Inc.
filed its answer to the complaint, contending, among others,
that Johnny was not, in legal contemplation a “passenger” of
its bus, as he just surreptitiously hitched a ride thereon.
Moreover, the vehicular collision was due to the fault of the
driver of Paspasero bus. Thereafter, and with prior leave of
court, Danghag, Inc. filed a third-party complaint against
Paspasero, Inc. and its driver.

In that action, the third-party defendants – Danghag, Inc. and

its bus driver – may file a motion asking for a separate trial of
the third-party complaint against them, or that there be
separate a schedule or schedules for the trial thereof, such
that they may not appear in the trial of the main case by and
between the heirs of Johnny and Danghag, Inc.

The court, in the exercise of its discretion, may grant such

motion and order for a separate trial insofar as the third-party
is complaint, especially, if, for instance, the third-party
defendants are not from the place where the trial court sits.

Where that happens, the sequence or order in the

presentation of evidence as, thus, outlined in Section 5, Rule
30 of the Amended Rules may strictly be followed.

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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RULE 32. TRIAL BY COMMISSIONER
A commissioner is a person to whom a case pending in court
is referred, for him to take testimony, hear the parties and
report thereon to the court, and upon whose report, if
confirmed, judgment is rendered.
When can we have a trial by commissioner?
It is necessary only when there are factual issues that are
beyond the competence of the judge to resolve. These are
very technical issues that the judge cannot solve.
Reference
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.
Note: Reference to a commissioner may be had by the written
consent of both parties.
GR: Trial by commissioner depends largely upon the
discretion of the court; but the following are instances when
such appointment is mandatory:
1. Expropriation
2. Partition
3. Settlement of estate of a deceased person in case of
contested claims
4. Submission of accounting by executors or administrators
Note: An irregularity in the appointment of a commissioner
must be seasonably raised in the trial court where the defect
could still be remedied. It can be waived by consent of the
parties or implied.
Section 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.
When can this trial by commissioner occur?
1. Reference by consent of the parties
2. Reference ordered on motion
3. The court on its own volition, motu proprio
Section 1 is reference by consent and Section 2 is reference
ordered on motion. Paragraphs (a), (b) and (c) are the good
grounds for a motion to appoint a commissioner.
In (a), it requires an examination of a long account. The best
example here is accounting. In (b) and (c), notice that a
commissioner may be appointed for carrying a judgment or
order into effect. Thus, a commissioner, can be appointed not
only to help the court render a decision, but also help the court
enforce a decision – even if the case is finished. Because
sometimes, problems arise on how to implement a decision of
the court.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
So take note that trial by commissioner is allowed not only for
the purpose of the court rendering the judgment but also for
the purpose of carrying a judgment or order into effect.
Order of Reference; Powers of the Commissioner
Section 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 or her 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 or
her 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
or her and to do all acts and take all measures necessary or
proper for the efficient performance of his or her duties under
the order. He or she may issue subpoenas and subpoenas
duces tecum, swear witnesses, and unless otherwise provided
in the order of reference, he or she may rule upon the
admissibility of evidence. The trial or hearing before him or
her shall proceed in all respects as it would if held before the
court.
Requisites of the order of reference
1. It must state the purpose
2. It must be in writing
3. It may specify or limit the power of the commissioner.
Order of Reference
When a reference is made, the clerk shall furnish the
commissioner with a copy of the order of the reference, which
may contain the following:
1. Specifications or limitations of the powers of the
commissioner
2. A direction to report only upon particular issues, to do or
perform particular acts, or to receive and report evidence
only; and
3. The date for beginning and closing the hearings and that
for the filing of his report.
Powers of the Commissioner
1. Exercise power to regulate the proceedings before him
2. Do all acts and take all measures necessary or proper for
the efficient performance of his duties
3. Swear witnesses
4. Issue subpoenas and subpoenas duces tecum
5. Unless otherwise provided in the order of reference, rule
upon the admissibility of evidence
Note: Requirement of hearing cannot be dispensed with as
this is the essence of due process.
Oath of Commissioner; Proceedings before the
Commissioner
Section 4. Oath of commissioner. – Before entering upon
his or her duties the commissioner shall be sworn to a faithful
and honest performance thereof.
Section 5. Proceedings before commissioner. – Upon
receipt of the order of reference and unless otherwise
provided therein, the commissioner shall forthwith set a time
and place for the first meeting of the parties or their counsel
to be held within ten (10) calendar days after the date of the
order of reference and shall notify the parties or their counsel.
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Failure of Parties to Appear Before Commissioner
Section 6. Failure of parties to appear before
commissioner. – If a party fails to appear at the time and
place appointed, the commissioner may proceed ex parte or,
in his or her discretion, adjourn the proceedings to a future
day, giving notice to the absent party or his or her counsel of
the adjournment.
Note: Where the order was merely to examine the accounts
involved in the counterclaim without any direction to hold
hearings, the commissioner does not need the presence of the
parties.
Refusal of Witness
Section 7. Refusal of witness. – The refusal of a witness
to obey a subpoena issued by the commissioner or to give
evidence before him or her, shall be deemed a contempt of
the court which appointed the commissioner.
Note: The commissioner is actually very powerful. He is the
alter ego of the judge. He can subpoena any person to be a
witness in the case and the refusal of the witness to obey or
to give evidence before him shall be deemed a contempt of
the court which appointed the commissioner. He does not
have the power to cite the witness in contempt but he can
recommend to the judge who appointed him.
Commissioner shall avoid delays
Section 8. Commissioner shall avoid delays. – It is the
duty of the commissioner to proceed with all reasonable
diligence. Either party, on notice to the parties and
commissioner, may apply to the court for an order requiring
the commissioner to expedite the proceedings and to make
his or her report.
Note: So if the commissioner is dilly-dallying the submission
of his findings or report, either party can ask the court for an
order requiring the commissioners to expedite.
Report of the Commissioner
Section 9. Report of commissioner. – Upon the
completion of the trial or hearing or proceeding before the
commissioner, he or she shall file with the court his or her
report in writing upon the matters submitted to him or her by
the order of reference. When his or her powers are not
specified or limited, he or she shall set forth his or her findings
of fact and conclusions of law in his or her report. He or she
shall attach thereto all exhibits, affidavits, depositions, papers
and the transcript, if any, of the testimonial evidence
presented before him or her.
Report of the Commissioner
Upon completion of the hearing, the commissioner must file
his report in court stating his findings of facts and conclusions
of law. However, the conclusions of law are not binding,
merely recommendatory.
Notice and Objections
Section 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 (10) calendar 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.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Notice and Objections
The clerk shall notify the parties of the filing of the report
and they are given ten (10) days to file their comment.
Notice of the filing of the report must be sent to the parties
for the purpose of giving them an opportunity to present their
objections. The failure to grant the parties, in due form, this
opportunity to object may, in some instances, constitute a
serious error in violation of their substantial rights.
The rule, however, is not absolute. In Manila Trading and
Supply Co. vs. Phil. Labor Union, 71 Phil. 539, it was ruled that
although the parties were not notified of the filing of the
commissioner’s reports, and the court failed to set said report
for hearing, if the parties who appeared before the
commissioner were duly represented by counsel and given an
opportunity to be heard, the requirement of due process has
been satisfied, and a decision on the basis of such report, with
the other evidence of the case is a decision which meets the
requirements of fair and open hearing.
Hearing
Section 11. Hearing upon report. – Upon the expiration of
the period of ten (10) calendar 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.
Hearing upon the report
After ten days, the court will set the report for hearing and
thereafter issue an order adopting, modifying or rejecting it.
In the hearing to be conducted on the commissioner’s report,
the court will review only so much as may be drawn in
question by proper objections. It is not expected to rehear the
case upon the entire record.
Although the commissioner is appointed by the court, the
court is not duty-bound to adopt the findings of the
commissioner. The judge is still the boss, the one who
decides. If he finds that the factual findings are inaccurate, he
can always reject it or order the commissioner to modify his
report. But most often, because the commissioner is an
expert, the judge will adopt the findings.
Stipulation as to findings
Section 12. Stipulations as to findings. – When the
parties stipulate that a commissioner’s findings of fact shall be
final, only questions of law shall thereafter be considered.
Note: The parties may stipulate that the commissioner’s
findings of fact shall be final. Thus, only questions of law shall
thereafter be considered.
They cannot anymore question the factual findings of the
commissioner. The only thing they can raise are questions of
law.
Compensation of Commissioner
Section 13. Compensation of commissioner. – The court
shall allow the commissioner such reasonable compensation
as the circumstances of the case warrant, to be taxed as costs
against the defeated party, or apportioned, as justice requires.
Note: The commissioner shall be entitled to reasonable
compensation which shall be taxed as costs against the
defeated party, or apportioned, as justice required (Sec. 13).
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If only one party wanted to refer the matter to a commissioner

because the other party is against the referral of the case to
the commissioner, whoever lost the case will shoulder the
cost, or apportioned as justice requires.

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RULE 33. DEMURRER TO EVIDENCE
It is a motion to dismiss filed by the defendant after the
plaintiff had rested his case on the ground of insufficiency of
evidence. The purpose of which is to discourage prolonged
litigation.
A demurrer to evidence is actually a motion to dismiss on the
ground of insufficiency of evidence. It is a remedy available to
the defendant, to the effect that the evidence produced by the
plaintiff is insufficient in point of law to make out or sustain
an issue. The main point in a demurrer to evidence is whether
or not the plaintiff had been able to establish a prima facie
evidence. In other words, a demurrer is an objection by one
of the parties in an action, to the effect that the evidence
which his adversary produced is insufficient to make out a
case or sustain the issue.
In a demurrer to evidence, however, it is premature to speak
of “preponderance of evidence” because it is filed prior to the
defendant’s presentation of evidence; it is precisely the office
of a demurrer to evidence to expeditiously terminate the case
without the need of the defendant’s evidence. Hence, what is
crucial is the determination as to whether the plaintiffs
evidence entitles it to the relief sought.
Note: The provision of the Rules of Court governing demurrer
to evidence does not apply to an election case.
Stage of the proceedings when demurrer to evidence is
availed of
After the plaintiff has completed the presentation of his or her
evidence.
Ground
Take note, the only ground for demurrer to evidence is that
the plaintiff has no right to relief. This ground is equivalent to
“insufficiency of evidence.”
Res judicata is an inappropriate ground for sustaining a
demurrer to evidence, even as it stands as a proper ground
for a motion to dismiss. A demurrer may be granted if, after
the presentation of plaintiff’s evidence, it appears upon the
facts and the law that the plaintiff has shown no right to relief.
In contrast, the grounds for res judicata present themselves
even before the presentation of evidence, and it should be at
that stage that the defense of res judicata shall be invoked as
a ground for dismissal.
Demurrer to Evidence
Section 1. Demurrer to evidence. – After the plaintiff has
completed the presentation of his or her 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 or her motion is denied, he or she shall have the right
to present evidence. If the motion is granted but on appeal
the order of dismissal is reversed, he or she shall be deemed
to have waived the right to present evidence.
Action on Demurrer
Section 2. Action on demurrer to evidence. – A demurrer
to evidence shall be subject to the provisions of Rule 15.
The order denying the demurrer to evidence shall not be
subject of an appeal or petition for certiorari, prohibition or
mandamus before judgment.
Judge Q: The more important part here is the 2 nd paragraph.
This is an innovation introduced under the recent
amendments. Appeals, even petitions for certiorari is not even
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
allowed. Why? Because the defense still has an opportunity to
challenge the ruling in his defense and in submitting the case
for decision, he might even include it in his memorandum. In
other words, the defense will not be deprived of the
opportunity to present his defense and if later on, the
judgment will be unfavorable to him, he can even raise it at
the time the case is being appealed to the appellate court.
Demurrer to Evidence v Motion to Dismiss
This is different from a motion to dismiss in the sense that a
Motion to Dismiss is normally filed after receiving the
complaint and before you answer. If your MTD is denied by
the court, you will then file your answer. In a Demurrer to
Evidence, there is already a trial and in fact, the plaintiff has
already finished presenting his evidence. After the plaintiff is
through with the presentation of evidence, you feel that the
plaintiff was not able to prove his case. The evidence
presented is not sufficient to support his cause of action. If
that is the case, you ask the court to dismiss the case by filing
a demurrer to evidence.
The ground is lack of cause of action as distinguished from
failure to state cause of action. Before a trial, the court may
dismiss the case for failure to state the cause of action. If
there is already a trial and the plaintiff failed to prove his case
and establish all the elements of a valid cause of action, the
court can dismiss the case based on lack of cause of action.
Effects of the Grant or Denial of Demurrer to Evidence
1. If granted, but reversed on appeal, the defendant loses
his right to present evidence.
a. In the case of reversal, the appellate court shall
render judgment for the plaintiff based on the
evidence alone.
2. If denied, the defendant can still present his evidence.
a. Where the court denies a demurrer to evidence, it
should set the date for the reception of the
defendant’s evidence in chief. It should not proceed
to grant the relief.
If the court grants the Demurrer, the case will be dismissed
and that is considered an adjudication on the merits.
Remedy of the Parties
1. If granted, the dismissal is considered an adjudication on
the merits, hence, the remedy is appeal.
a. The appellate court should not remand the case
for further proceedings but should render
judgment on the basis of the evidence submitted
by the plaintiff. Remanding the case to the RTC
avails the plaintiff the opportunity to adduce
evidence, which is against the Rules.
2. If denied, the order of denial is merely interlocutory and
appeal is not the remedy.
a. The order denying the demurrer to evidence shall
not be the subject of an appeal or petition for
certiorari, prohibition or mandamus before
judgment.
b. The remedy then is to proceed to trial, and if the
defendant loses, to appeal the judgment and
include in the assigned errors, the denial of the
demurrer to evidence.
c. However, it can be the subject of a petition for
certiorari in case of grave abuse of discretion or
an oppressive exercise of judicial authority.
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What is the remedy of the plaintiff if the Demurrer is
granted?
Plaintiff can appeal the dismissal of the case. If the appellate
court reverses the decision of the trial court, and finds that
there is sufficient evidence, the defendant loses his right to
present evidence. So, the plaintiff wins the case and the
defendant loses without him being able to present his
evidence. That is the danger of a demurrer to evidence in civil
cases.

What if the demurrer is denied?

The defendant can still present his evidence.

Difference between Demurrer to Evidence in Civil

Cases from Criminal Cases

Civil Cases Criminal Cases

Leave of court is not
required before filing.
Appealable, if granted
If denied, defendant may
proceed to present
evidence.
Court cannot make a
demurrer motu proprio
Leave of court may or may
not be required.
Not appealable as it will
result to double jeopardy
If denied, accused may
present evidence only if he
filed it with leave of court.
Court can dismiss motu
proprio

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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JUDGMENT
A judgment is the final ruling by a court of competent
jurisdiction regarding the rights or other matters submitted to
it in an action or proceeding. A judgment is the court’s official
and final consideration and determination of the respective
rights and obligations of parties.
It is vital to keep in mind that, in the process of rendering a
judgment or in resolving controversies, courts can only
consider facts and issues pleaded by the parties. Courts, as
well as magistrates presiding over them, are not omniscient.
They can only act on the facts and issues presented before
them in appropriate pleadings. They may not even substitute
their own personal knowledge for evidence. Nor may they take
notice of matters except those expressly provided as subjects
of mandatory judicial notice.
Judgment and decision
Judgment is normally synonymous with decision. However, a
decision is much broader in scope than a judgment. A decision
contains the findings of fact of the court and the law relied
upon in support of the court’s decision. A decision of the court
refers to the entire document prepared and promulgated by
the judge adjudicating and determining the rights of the
parties to the case. It contains the findings of facts and the
conclusions of law, the reasons and the evidence to support
such findings, as well as the discussion of issues leading to
the its determination.
Judgment is part of the decision. In fact, it is found in the last
part. It is otherwise known as the dispositive portion of the
decision or the fallo- the decretal portion. It is the
WHEREFORE clause.
Requisites of a valid judgment
a. The court or tribunal must be clothed with authority to
hear and determine the matter before it.
b. The court must have jurisdiction over the parties and the
subject matter.
c. The parties must have been given an opportunity to
adduce evidence in their behalf.
d. The evidence must have been considered by the tribunal
in deciding the case.
e. The judgment must be in writing, personally and directly
prepared by the judge. A verbal judgment is, in
contemplation of law, not in esse, therefore, ineffective.
f. The judgment must clearly state the facts and the law
upon which it is based, signed by the judge and filed with
the clerk of court.
The parties to a litigation should be informed of how it was
decided with an explanation of the factual and legal reasons
that led to the conclusions of the court. The court cannot
simply say that the judgment is in favor of X and Y and just
leave it at that without any justification whatsoever so he may
appeal to the higher court, if permitted, should he believe that
the decision should be reversed.
Faithful adherence to the requisites of a judgment as required
by the Constitution is a paramount component of due process
and fair play. A decision that does not clearly and distinctly
state the facts and the law on which it is based leaves the
parties in the dark as to how it was reached and is precisely
prejudicial to the losing party, who is unable to pinpoint the
possible errors of the court for review by a higher tribunal. A
decision, with nothing to support it, is a patent nullity and
should be struck down and set aside as void.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Contents of a Judgment
A judgment has two parts: (a) the body of the judgment or
the ratio decidendi, and (b) the dispositive portion of the
judgment or fallo. The body of the decision is not the part of
the judgment that is subject to execution but the fallo because
it is the latter which is the latter which is the judgment of the
court. The importance of fallo or dispositive portion of a
decision should state whether the complaint or petition is
granted or denied, the specific relief granted, and the costs.
It is the dispositive part of the judgment that actually settles
and declares the rights and obligations of the parties, finally,
definitively, and authoritatively.
N.B. The judgment must bear the signature of the judge.
What happens if there is a conflict between the
decision and the fallo? The judgment or the fallo has a
conflict with the body. Which one will prevail?
GR: The judgment or the fallo will prevail. This rule applies
only when the dispositive part is definite, clear, and
unequivocal.
XPN: Where the inevitable conclusion from the body of the
decision is that there was a mistake in the dispositive portion,
the body of the decision will prevail.
Note: The rule is that in case of ambiguity or uncertainty in
the dispositive portion of a decision, the body of the decision
may be scanned for guidance in construing the judgment.
As jurisprudence instructs, “The operative part in every
judgment is the dispositive portion or the fallo.”
Ambiguity; clarificatory judgment
Where the judgment is difficult to execute because of
ambiguity in its terms, it is suggested that the remedy one
should avail of, for the removal of the ambiguity in the
judgment, is the filing of a motion for clarificatory judgment
and not to assail the judgment as void.
What is the difference between a judgment and on
opinion of the court?
The judgment or fallo is the final disposition of the Court which
is reflected in the dispositive portion of the decision. A decision
is directly prepared by the judge and signed by him,
containing clearly and distinctly a statement of the facts
proved and the law upon which the judgment is based. An
opinion of the court is the informal expression of the views of
the court and cannot prevail against its final order. The
opinion of the court is contained in the body of the decision
that serves as a guide or enlightenment to determine the ratio
decidendi of the decision. The opinion forms no part of the
judgment even if combined in one instrument, but may be
referred to for the purpose of construing the judgment.
Distinguish clearly but briefly: Legislative facts and
adjudicative facts
Legislative facts refer to facts mentioned in a statute or in an
explanatory note, while adjudicative facts are facts found in a
court decision.
What is a memorandum decision?
A memorandum decision is one rendered by an appellate court
and incorporates by reference the findings of fact and
conclusions of law contained in the decision or order under
review.
Although a memorandum decision is permitted under certain
conditions, it cannot merely refer to the conclusions of the
lower court. The appellate court must make full findings of
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fact and conclusions of law on its own. As long as a
memorandum decision states the nature of the case,
summarizes the facts with references to the record, and
contains a statement of the applicable laws and jurisprudence
and the tribunal’s assessment and conclusions on the case,
the constitutional requirement of a valid judgment will not be
transgressed.
When a judgment becomes final
➢ The term “final” when used to describe a judgment, may
be used in two sense. In the first, it refers to a judgment
that disposes of a case in a manner that leaves nothing
more to be done by the court in respect thereto. In this
sense, a final judgment is distinguished from an
interlocutory order which does not finally terminate or
dispose of the case.
➢ By implication from Sec. 1 of Rule 39, the word “final”
may also refer to a judgment that is no longer appealable
and is already being capable of being executed because
the period for appeal has elapsed without a party having
perfected an appeal or if there has been an appeal, it has
already been resolved by a highest possible tribunal. In
this sense, the judgment is commonly referred to as one
that is “final and executory.”
➢ A final order is defined as one which disposes of the
subject matter in its entirety or terminates a particular
proceeding or action, leaving nothing else to be done but
to enforce by execution what has been determined by the
court.
Interlocutory Order
An interlocutory order does not dispose of the case completely
but leaves something to be decided upon by the court. It does
not end the court’s task of adjudicating the parties’
contentions and determining their rights and liabilities as
regards each other, but obviously indicates that other things
remain to be done by the court.
The word interlocutory refers to something intervening
between the commencement and the end of the suit which
decides some point or matter but is not a final decision of the
whole controversy. They only determine incidental matters
that do not touch on the merits of the case or put an end to
the proceedings.
Its effects are merely provisional in character and substantial
proceedings have to be further conducted by the court in
order to finally resolve the issue or controversy.
Distinction between a final order and interlocutory order
The distinction is important because a final order, that
completely disposes of a case, is appealable while an
interlocutory order is not appealable.
The proper remedy to question an improvident interlocutory
order is a petition for certiorari under Rule 65, not Rule 45. A
petition for review under Rule 45 is the proper mode of redress
to question only final judgments. One cannot appeal from an
interlocutory order. Permitting appeals from such an order
may result in multiplicity of appeals in a single action, thus
prolonging the action. Under Sec. 1, Rule 41, it is clear that
interlocutory orders are not appealable.
Doctrine of Immutability of Judgments and
Unalterabality of Final Judgments
➢ Under the doctrine of finality or immutability of judgment,
a decision that has acquired finality becomes immutable
and unalterable, and may no longer be modified in any
respect, even if the modification is meant to correct
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
erroneous conclusions of fact and law, and whether it be
made by the court that rendered it or by the Highest
Court of the land. Any act which violates this principle
must immediately be struck down.
➢ Immutability of judgments is the fundamental principle
that a judgment that has become final and executory is
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, regardless of whether the modification is
attempted to be made by the court rendering it or by the
highest court of the land.
➢ Controversies cannot drag on indefinitely because the
rights and obligations of every litigant must not hang in
suspense for an indefinite period of time. The doctrine is
not a mere technicality to be brushed aside, but a matter
of public policy as well as a time-honored procedural
policy.
➢ The doctrine presupposes the existence of a valid
judgment. A void judgment never acquires the status of
a final and executory judgment. Parties may, therefore,
challenge the judgment without running afoul of the
doctrine of immutability of judgment. A direct attack may
be brought either through a petition for annulment of
judgment.
➢ The doctrine of immutability of judgments bars courts
from modifying decisions that had already attained
finality, even if the purpose of the modification is to
correct errors of fact or law
➢ It is well-settled that a decision that has acquired finality
becomes immutable and unalterable, and may no longer
be modified in any respect, even if the modification is
meant to correct erroneous conclusions of fact and law,
and whether it be made by the court that rendered it or
by the Highest Court of the land.
o There are, however, exceptions to the general rule,
namely: (1) the correction of clerical errors; (2) the
so-called nunc pro tunc entries which cause no
prejudice to any party; (3) void judgments; and (4)
whenever circumstances transpire after the finality
of the decision rendering its execution unjust and
inequitable or in other words, the existence of a
supervening act.
➢ Well-entrenched in jurisprudence is the rule that factual
findings of the trial court, especially when affirmed by the
appellate court, are accorded the highest degree of
respect and considered conclusive between the parties,
save for the following exceptional and meritorious
circumstances: (1) when the factual findings of the
appellate court and the trial court are contradictory; (2)
when the findings of the trial court are grounded entirely
on speculation, surmises or conjectures; (3) when the
lower court’s inference from its factual findings is
manifestly mistaken, absurd or impossible; (4) when
there is grave abuse of discretion in the appreciation of
facts; (5) when the findings of the appellate court go
beyond the issues of the case, or fail to notice certain
relevant facts which, if properly considered, will justify a
different conclusion; (6) when there is a misappreciation
of facts; (7) when the findings of fact are themselves
conflicting; and (8) when the findings of fact are
conclusions without mention of the specific evidence on
which they are based, are premised on the absence of
evidence, or are contradicted by evidence on record
➢ The court ruled that a judgment on compromise
agreement is a judgment on the merits. It has the effect
of res judicata, and is immediately final and executory
unless set aside because of falsity or vices of consent.
The doctrine of immutability of judgments bars courts
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from modifying decisions that have already attained
finality, even if the purpose of the modification is to
correct errors of fact or law.
➢ When given judicial approval, a compromise agreement
becomes more than a contract binding upon the parties.
Having been sanctioned by the court, it is entered as a
determination of a controversy and has the force and
effect of a judgment. It is immediately executory and not
appealable, except for vices of consent or forgery. The
nonfulfillment of its terms and conditions justifies the
issuance of a writ of execution; in such an instance,
execution becomes a ministerial duty of the court
➢ As a general rule, the perfection of an appeal in the
manner and within the period permitted by law is not only
mandatory but also jurisdictional, and the failure to
perfect the appeal renders the judgment of the court final
and executory. As such, it has been held that the
availability of an appeal is fatal to a special civil action for
certiorari for the same is not a substitute for a lost appeal.
This is in line with the doctrine of finality of judgment or
immutability of judgment under which a decision that has
acquired finality becomes immutable and unalterable,
and may no longer be modified in any respect, even if the
modification is meant to correct erroneous conclusions of
fact and law, and whether it be made by the court that
rendered it or by the Highest Court of the land. Any act
which violates this principle must immediately be struck
down.
o Similarly, while it is doctrinally entrenched that
certiorari is not a substitute for a lost appeal, the
Court has allowed the resort to a petition for
certiorari despite the existence of or prior availability
of an appeal, such as: (1) where the appeal does
not constitute a speedy and adequate remedy; (2)
where the orders were also issued either in excess
of or without jurisdiction; (3) for certain special
considerations, as public welfare or public policy; (4)
where in criminal actions, the court rejects rebuttal
evidence for the prosecution as, in case of acquittal,
there could be no remedy; (5) where the order is a
patent nullity; and (6) where the decision in the
certiorari case will avoid future litigations.
Reasons for the rule on immutability of judgments
The doctrine is founded on considerations of public policy and
sound practice that, at the risk of occasional errors, judgments
shall become final at some definite point in time.
The attitude of judicial reluctance towards the annulment of a
judgment, final order or final resolution is understandable, for
the remedy disregards the time-honored doctrine of
immutability and unalterability of final judgments, a solid
corner stone in the dispensation of justice by the courts.
Two-fold purpose
The doctrine of immutability and unalterability serves a two-
fold purpose, namely:
(a) to avoid delay in the administration of justice and thus,
procedurally, to make orderly the discharge of judicial
business; and
(b) to put an end to judicial controversies, at the risk of
occasional errors, which is precisely why the courts exist.
As to the first, a judgment that has acquired finality becomes
immutable and unalterable and is no longer to be modified in
any respect even if the modification is meant to correct an
erroneous conclusion of fact or of law, and whether the
modification is made by the court that rendered the decision
or by the highest court of the land. As to the latter,
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
controversies cannot drag on indefinitely because
fundamental considerations of public policy and sound
practice demand that the rights and obligations of every
litigant must not hang in suspense for an indefinite period of
time.
Remedies against a final and executory judgment;
exceptions to the doctrine of immutability of
judgments
a. The correction of clerical errors
b. The so-called nunc pro tunc entries which cause no
prejudice to any party
c. Whenever circumstances transpire after the finality of the
decision rendering its execution unjust and inequitable
d. In cases of special and exceptional nature as when facts
and circumstances transpire which render the judgment’s
execution impossible or unjust, when necessary in the
interest of justice to direct its modification to harmonize
the disposition wit prevailing circumstances
e. In case of void judgments
f. When there is a strong showing that a grave injustice
would result from the application of the Rules
g. When there are grounds for annulment of the judgment
or a petition for relief
h. In criminal cases, when a law, is enacted reducing the
penalties for certain crimes, the entry of judgment may
be recalled in order to impose the new penalty mandated
i. To clarify an ambiguity
j. In a judgment for support, because it can be amended
anytime
Judgment on the merits
A judgment is on the merits when it amounts to a legal
declaration of the respective rights and duties of the parties
based upon the disclosed facts. “Merits,” as a matter of
substance in law, as distinguished from a matter of form,
refers to the real or substantial grounds of action or defense,
as contrasted with some technical or collateral matter raised
in the course of the suit. There could be a judgment on the
merits even if there is no trial. A ruling based on a motion to
dismiss, without any trial or formal presentation of evidence,
can still be a judgment on the merits. A judgment that the
defense was substantial enough to overcome the relief sought
is a judgment on the merits.
What appears to be essential to a judgment on the merits is
that it be a reasoned decision, which clearly states the facts
and the law on which it is based.
Doctrine of the law of the case
Whatever is once irrevocably established as the controlling
legal rule or decision between the same parties in the case
continues to be the law of the case, whether correct on
general principles or not, so long as the facts on which such
decision was predicated continue to be the facts of the case
before the court. This principle generally finds application in
cases where (1) an appellate court passes on a question and
(2) the appellate court remands the case to the lower court
for further proceedings; the lower court and even the
appellate courts on subsequent appeal of the case are, thus,
bound by how such question had been previously settled.
This must be so for reasons of practicality and the orderly
adjudication of cases. The doctrine of the law of the case is
“necessary to enable an appellate court to perform its duties
satisfactorily and efficiently, which would be impossible if a
question, once considered and decided by it, were to be
litigated anew in the same case upon any and every
subsequent appeal.” It is founded on the policy of ending
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litigation. The need for judicial orderliness and economy
require such stability in the final judgments of courts or
tribunals of competent jurisdiction.
The doctrine of the law of the case provides that questions of
law previously determined by a court will generally govern a
case through all its subsequent stages where the
determination has already been made on a prior appeal to a
court of last resort.
Judgment penned by a judge who did not hear the
evidence
It is not necessary that the judge who heard the evidence be
the same judge who shall pen the decision. The judge trying
the case may die, resign, be disabled, or transferred to
another court. In such an eventuality, another judge has to
continue and finish the trial. The succeeding judge can
examine and evaluate the evidence already presented by the
simple expedient of going over the transcripts of the testimony
of the witnesses in the same manner as appellate courts
review the evidence on record. Such reliance does not violate
substantive and procedural due process.
The fact that the trial judge who penned the decision was
different from the one who received the evidence is not one
of the exceptions that warrant a factual review of the case.
This is because he can merely rely on the transcribed
stenographic notes taken during the trial as the basis for his
decision.
Judgment penned by a judge who had ceased to be a
judge
A decision penned by a judge after his retirement cannot be
validly promulgated and cannot acquire a binding effect. In
like manner, a decision penned by a judge during his
incumbency cannot be validly promulgated after his
retirement. When a judge retires, all his authority to decide
any case, i.e., to write, sign and promulgate the decision has
also “retired” with him. In other words, he had lost entirely his
power and authority to act on all cases assigned to him prior
to his retirement.
Judgments or decisions of the Supreme Court serve as
precedents.
Rule on stare decisis; applies only to Supreme Court
decisions
The principle of stare decisis et non quieta movere 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.
The doctrine enjoins adherence to judicial precedents and
requires courts in a country to follow the rule established in a
decision of the Supreme Court. That decision becomes a
judicial precedent to be followed in subsequent cases by all
courts in the land. The doctrine is based on the principle that
once a question of law has been examined and decided, it
should be deemed settled and closed to further argument.
It should be noted, however, that the doctrine of stare decisis
becomes operative only when judicial precedents are set by
the pronouncements of the Supreme Court to the exclusion of
lower courts. This rule is true regardless whether the decisions
of the lower courts are logically or legally sound. Only
decisions of the Supreme Court become part of the legal
system.
Pro hac vice rulings
Pro hac vice is a Latin term meaning “for this particular
occasion only.” A pro hac vice ruling cannot be relied upon as
a precedent to govern other cases.
Res judicata v stare decisis
The focal point of res judicata is the judgment while the focal
point of stare decisis is the doctrine created.
Obiter dictum
An obiter dictum is an opinion expressed by a court, which is
not necessary to the determination of the case before it. It is
neither enforceable as a relief nor a source of a judicially-
actionable claim.

Judgment penned by a judge who was transferred

A judge who was permanently transferred to another court of
equal jurisdiction, before the case heard by him was decided,
may validly prepare and sign his decision on the said case and
send the same to the court where he was originally assigned.
The judge who pens the decision of a case heard by him
before he was assigned or transferred to another district or
branch of the court of equal jurisdiction is considered an
incumbent judge, albeit assigned to a different branch at the
time the decision was promulgated.

Judgments of the Supreme Court, precedents

The decisions of the Supreme Court form part of the legal
system. Hence, every court must take cognizance of the
decisions of the Supreme Court. Said decisions are proper
subjects of mandatory judicial notice. Members of the Bench
have a responsibility to know and apply the latest holdings of
the Supreme Court.

It is the duty of the lower courts to obey the decisions of the

Supreme Court and render obeisance to its status as the apex
of hierarchy of courts. A lower court cannot reverse or set
aside the decisions or orders of a superior court, especially of
the Court, for to do so will nullify the essence of review and
negate the principle of hierarchy of courts. For there is only
one Supreme Court from whose decisions all other courts
should take their bearings.

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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RULE 34. JUDGMENT ON THE PLEADINGS
Rule 34 and Rule 35 are both called accelerated judgments.
These are instances where the court may proceed to the case
without conducting a trial.
The first one is called Judgment on the Pleadings.
Judge Q: If this sounds familiar, we already took this up when
we took up rule 18. One of the purposes of pre-trial and we
all know pre-trial is mandatory. Applying his discretion, it
would be best to render judgment on the pleadings. What is
the implication? It is an expeditious way of terminating civil
action. No more trial and judgment will be served right away
based on the substance of his pleadings. This is an advantage
on the part of the plaintiff. But we must always bear in mind
that for the court to exercise the authority, certain conditions
must be met.
Judgment on the Pleadings
Section 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.
What does tender an issue mean?
Even if the defendant has filed an answer to the complaint,
the manner of making an answer fails to put up a defense or
mount a defense, a valid defense for the court to resolve. So
for instance, the defendant mentions a denial but is classified
as a general denial, what the rule says is that for an issue to
be raised, the denial must be specific or particular. If general,
it is tantamount to an admission and that is also an effect on
the judgment on the pleadings.
Nature of Judgment on the Pleadings
1. The concept of a judgment on the pleadings will not apply
when no answer is filed. It will come into operation when
an answer is served and filed but the same time fails to
tender an issue or admits the material allegations of the
adverse party’s pleading.
2. When there is no answer, the proper remedy for the
plaintiff is to file a motion to declare defendant in default.
3. The answer admits the material allegations of the adverse
party’s pleading by (a) expressly admitting the truth of
such allegations; (b) failing to make specific denial of the
material allegations; or (c) omitting to deal with them at
all.
How is judgment on the pleading done?
1. By motion of the plaintiff
a. A judgment on the pleadings must be on motion of
the claimant.
2. By the court’s own volition or motu proprio, if the court
during the pre-trial finds the same to be proper
One who prays for judgment on the pleadings without offering
proof of his own allegations and without giving the opposing
party any opportunity to introduce evidence must be
understood to admit all the material and relevant allegations
of the opposing party and to rest his motion for judgment on
those allegations taken together with such of his own as are
admitted in the pleadings
When to file
1. Where an answer fails to tender an issue
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
a. When it neither admits nor denies the allegations
in the complaint
b. When all the denials in the answer are general
denials and not specific
2. Otherwise admits the material allegations of the adverse
party’s pleading
Note: When no answer is filed, the remedy is to move that the
defendant be declared in default.
Effects of Filing a Motion for Judgment on the Pleading
Plaintiff is deemed to have admitted all the relevant
allegations of fact of the defendant in his answer.
XPN:
1. Plaintiff is not deemed to have admitted irrelevant
allegations in the defendant’s answer.
2. Defendant is not deemed to have admitted allegations of
damages in the complaint.
When Not Proper
1. Declaration of nullity of marriage
2. Annulment of marriage
3. Legal separation
4. When the issue is the amount of unliquidated damages
because there must always be evidence to prove such
amount (mentioned in other notes)
5. When only conclusions of law are being alleged
(mentioned in other notes)
Our law does not allow the marriage to be terminated by
agreement of the parties.
Example: Randi filed an action for collection of sum of money
against Waldi. Randi attached to the complaint the promissory
note purportedly signed by Waldi. In his answer, Waldi simply
denied having secured a loan from Randi and averred that the
signature appearing in the promissory note is not his – and
that is his only defense – but his answer containing such denial
is not verified or under oath
Can Randi move than the court render judgment on the
pleadings?
Yes. Inasmuch as the only issue in the case is whether or not
Waldi contracted a loan from Randi and considering that
Waldi, in his answer, failed to make denial under oath, he is
thereby deemed to have admitted due execution of the
promissory note appended to the complaint; hence, judgment
on the pleadings is proper.
Requisites:
Before a judgment on the pleadings may be had:
1. An answer has been filed (which fails to tender an issue,
or otherwise admits the material allegations of the
adverse party)
2. Upon motu proprio or upon motion of the plaintiff
3. It must be written, because it is a litigious motion
Action on Motion for Judgment on the Pleadings
Section 2. Action on motion for judgment on the
pleadings. – The court may motu proprio or on motion
render judgment on the pleadings if it is apparent that the
answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party’s pleadings.
Otherwise, the motion shall be subject to the provisions of
Rule 15 of these Rules.
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Any action of the court on a motion for judgment on the Motion for judgment on the
pleadings shall not be subject of an appeal or petition for pleadings is filed by a
certiorari, prohibition or mandamus. claiming party like a plaintiff
or counterclaimant
Note: If the judge denied your motion for judgment on the May be ordered motu
pleading, you cannot question that by certiorari or by appeal. proprio by the court
Based on the pleadings
Further, from the reference to Rule 15, it follows that a motion alone
for judgment on the pleadings is considered an allowable
litigious motion. As such, there must be proof of service to the Entire case may be
other party who shall have 5 calendar days to file an terminated
opposition. From receipt of such, the court shall have 15
calendar days to resolve the motion.
Motion for summary
judgment may be filed by
either the claiming or the
defending party
May be ordered motu
proprio by the court
Based on the pleadings,
affidavits, depositions and
admissions
May only be partial

Judge Q: Now, this is not subject of an appeal because it is

not a judgment or final order. As a rule, those that are
considered rulings of the court finally disposing of the action
will be subject to appeal but since the action of the court will
not have the effect of totally disposing of the main case, hence
it is called an interlocutory order, hence not subject to appeal.
What is also striking is the fact that it is not subject to
certiorari, prohibition and mandamus. These are special civil
actions, perhaps the framers of these amendments deem it
best to reserve any grounds for assailing the adverse decision
of the court. This will be best reserved when the time comes,
that the aggrieved party will elevate it to the appellate court-
Just to consolidate their grounds including interlocutory orders
so that it will expedite the proceedings. Before, it will result
for the case to be prolonged because of several remedies
availed of by the parties through a special civil action for
certiorari and it would be cause for unnecessarily suspending
the trial of the main case. Now this time, in 2019 amendments,
it is clear cut that any ruling of the court will no longer be
allowed. Any petition for certiorari in the meantime will not be
allowed so this perhaps would somehow make the
adjudication of the case more expeditious.

If you have a copy of your flowchart, you may notice, this is

simpler. If you remember, pretrial will be conducted within 60
days an answer is filed but between the filing of answer and
conduct of pre-trial, plaintiff has option to file motion for
judgment on the pleadings. ALWAYS REMEMBER THAT
ONLY PLAINTIFF CAN MOVE FOR JUDGMENT ON THE
PLEADINGS precisely because the objective is to rule based
on the allegations of the complaint so the 60-day period would
be enough to file a motion. Will it matter if plaintiff failed to
file a motion? Is there an occasion even if plaintiff failed to file
a motion? As what I've said under the rules on pre-trial, the
court may motu proprio make a judgment based on the
pleadings if based on his discretion, he shall issue a judgment
on the pleadings. If route is to file a motion, the court must
see to it that the grounds are apparent or if more assessment
is needed so judge can properly determine whether to grant
or deny. So once a resolution is issued granting the said
motion, he has within 90 days to issue an order or decision
based on the pleadings only. If there is denial of motion, then
proceed to pre-trial.

Difference between Judgment on the Pleadings and

Summary Judgment

Judgment on the Pleadings Summary Judgment

Absence of a factual issue in Involves an issue, but the
the case because the issue is not genuine
answer tenders no issue at
all IOW, just a shadow
defense, just to prolong the
proceedings

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CIVPRO |
RULE 35. SUMMARY JUDGMENTS
In Rule 34, the answer filed by the defendant has put up no
defense at all. No defense has been raised or the answer
admits all the material allegations in the adverse party’s
pleadings. In Rule 35, the answer filed by the defendant puts
up a defense but the defense is not a genuine defense.
Meaning, it is invoked only for the purpose of delay and the
defense is not actually seriously being interposed.
Judge Q: This one is similar to rules on judgment on the
pleadings because it will also serve as a shortcut for court to
proceed right away in rendering judgment but the grounds are
different. What is their common denominator? Speedy
resolution or disposition of the same case- same cause but
different.
Define summary judgment procedure
A summary judgment procedure is a method for promptly
disposing of actions in which there is no genuine issue as to
any material fact.
It is proper where, upon a motion filed after the issues had
been joined and on the basis of the pleadings and papers filed,
the court finds that there is no genuine issue as to any
material fact except as to the amount of damages.
Summary Judgment for Claimant
Section 1. Summary judgment for claimant. – A party
seeking to recover upon a claim, counterclaim, or cross-claim
or to obtain a declaratory relief may, at any time after the
pleading in answer thereto has been served, move with
supporting affidavits, depositions or admissions for a summary
judgment in his or her favor upon all or any part thereof.
Section 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 or her favor as to all or any part
thereof.
Summary Judgment is proper when it appears to the court
that:
1. There is no genuine issue as to any material fact, except
as to the amount of damages
2. The moving party is entitled to judgment as a matter of
law
Note: Summary judgment is proper only if there is clearly no
genuine issue as to any material fact in the action. If there is
any question or controversy, there should be trial on the
merits.
The party who moves for summary judgment has the burden
of demonstrating clearly the absence of genuine issues of fact,
or that the issue posed is patently insubstantial as to
constitute a genuine issue.
What is a genuine issue?
A genuine issue is an issue of fact which requires the
presentation of evidence as distinguished from an issue which
is a sham, fictitious, contrived or a false claim. When the facts
as pleaded appear uncontested or undisputed, then there is
no real or genuine issue or question as to the facts, and
summary judgment is called for.
Trial courts have limited authority to render summary
judgments and may do so only when there is clearly no
genuine issue as to any material fact. When the facts as
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
pleaded by the parties are disputed or contested, proceedings
for summary judgment cannot take the place of trial.
Genuine issue is an issue of fact which calls for the
presentation of evidence as distinguished from an issue which
is sham, fictitious, contrived, and patently unsubstantial so as
not to constitute a genuine issue for trial.
Summary judgment, trigger
What triggers a summary judgment is the absence of a
genuine factual issue. It is not proper where there are factual
issues to be resolved by the presentation of evidence. Even if
there is a complicated question of law, if there is no issue as
to the facts, a summary judgment is not barred.
Example: I filed a case against you for collection of sum of
money. In your answer, you said, “I have already paid my
debt. I have here the receipt to prove that I paid.”
Is there an issue? Yes, the issue is whether or not you have
paid the debt. But then, I, as the plaintiff says that is not true
and that the receipt is fake.
What is the remedy? I will file a motion for summary judgment
and I will challenge your allegation that you have already paid
me through depositions and affidavits.
How is it done
1. By the filing of a motion for summary judgment with
supporting affidavits, depositions, or admission
2. The adverse party may file his comment or opposition
within 5 days from receipt of the motion
3. A hearing will be conducted only if ordered by the court
(Note: No more mandatory hearing)
4. Court renders a summary judgment
Dean M: As the plaintiff, I know that you were just inventing
your defense of payment para duna kay ika- himo nga issue
because you know you haven’t paid me yet. You are expecting
the help from your brother in the US but the money hasn’t
arrived yet. You want to buy time. What is the best way to
buy time? You answer the complaint and make up a defense.
As the plaintiff, what will I do? I will prove that you haven’t
paid me yet. For example, you have sent me a letter a few
weeks ago where you asked for forgiveness for not being able
to pay yet since your money from the US hasn’t arrived yet.
That is a strong evidence that you have not paid yet. That is
where summary judgment will come in. There is an issue but
the issue is not genuine, it is a sham, a fake.
In Judgment on the Pleading, wala gyuy issue nga gi raise kay
ni admitar man dayon ka nga utangan ka but the reason why
you haven’t been able to pay is because you have no money
yet.
Who can File
1. Plaintiff- may file the motion after the answer has been
served, and therefore, must wait until the issues have
been joined
2. Defendant- He can move for summary judgment at any
time
TEST: Whether or not the pleadings, affidavits and exhibits in
support of the motion are sufficient to overcome the opposing
papers and to justify the finding that, as a matter of law, there
is no defense to the action or claim is clearly meritorious
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Motions and Proceedings Thereon
Section 3. Motion and proceedings thereon. – The
motion shall cite the supporting affidavits, depositions or
admissions, and the specific law relied upon. The adverse
party may file a comment and serve opposing affidavits,
depositions, or admissions within a non-extendible period of
five (5) calendar days from receipt of the motion. Unless the
court orders the conduct of a hearing, judgment sought shall
be rendered forthwith if the pleadings, supporting affidavits,
depositions and admissions on file, 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 judgment
as a matter of law.
Any action of the court on a motion for summary judgment
shall not be subject of an appeal or petition for certiorari,
prohibition or mandamus.
Note: The motion for summary judgment must be
accompanied by:
1. Supporting affidavits;
2. Depositions or admissions; and
3. The specific law relied upon
If it turns out that a party was lying, that party will be liable
for perjury because an affidavit is to be notarized.
Section 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 may, by examining the pleadings and the evidence
before it and by interrogating counsel [,] ascertain what
material facts exist without substantial controversy, including
the extent to which the amount of damages or other relief is
not in controversy, and direct such further proceedings in the
action as are just. The facts so ascertained shall be deemed
established, and the trial shall be conducted on the
controverted facts accordingly.
Judge Q: This happens if the complaint has several allegations
and several issues being raised and the defendant puts up
different types of allegations, some are genuine and some are
not. So only those not will be considered for summary
judgment but for other issues will proceed to trial. This is what
we call a rendition of a partial summary judgment but any
rendition should be treated as an interlocutory order and not
a final judgment.
Partial Summary Judgment
The rules authorize the rendition of partial summary
judgment. Such judgment is interlocutory in nature and is
not a final and appealable judgment. The appeal from such
partial judgment should be taken together with the judgment
in the entire case after trial shall have been conducted.
Section 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.
What are the forms of affidavits under Rule 35?
1. Supporting affidavits- to support the motion for summary
judgment
2. Opposing (counter) affidavits- to oppose the motion for
Summary Judgment
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Requisites of supporting or opposing affidavits to a motion for
Summary Judgment
1. The affidavit shall be made based on personal knowledge
2. It shall set forth such facts as would be admissible in
evidence
3. The affiant is competent to testify to the matters stated
therein
4. Certified true copies of all papers or parts thereof referred
to in the affidavit shall be attached thereto or served
therewith
Jude Q: What is the implication? It is important because in
secs 1 and 2, motions must be accompanied with documents.
What is the value of these documents for the court to rule in
a motion for summary judgment? Good chance that the party
will be able to establish that there is no genuine issue and for
the opposing party to concede especially if he is obliged to
submit an affidavit to support his defense since he will be then
liable for perjury. So it will somehow facilitate, it is a useful
guide for the court to determine that the answer or responsive
pleading actually has no genuine issue because once he
executes an affidavit based on falsities, and it is under oath,
he will be running the risk of being charged with perjury. So
this is very useful as what we have learned in previous topics.
So going back to the example I made, if the defendant claims
payment when in fact there is none, then he is required to file
an affidavit and once he files and it turns out to be false, then
that would be a reason for him to be charged with perjury so
in order to prevent that from happening, section 5 is very
helpful. So those that are not information based on his
personal knowledge are what we know as hearsay and for
more reason that the motion for summary judgment be
rendered in favor of the movant.
Section 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 or her to incur, including attorney’s fees
[, i]t may, after hearing, further adjudge the offending party
or counsel guilty of contempt.
Sanctions
1. Damages
2. Perjury
3. Contempt
Point to remember
GR: You cannot secure judgment by motion alone. this is
because a motion is defined as any petition for relief other
than the relief prayed for in the pleadings.
XPN: There are three known exceptions where a motion can
already pray for immediate relief. They are:
1. Rule 33- Demurrer to Evidence
2. Rule 34- Judgment on the Pleadings
3. Rule 35- Summary Judgment
Pascual v Consolidated Sps Rural Bank
Spouses failed to appear during pretrial and insisted that the
reason was because they had earlier filed a motion for
summary judgment and when the time came for the pre-trial
conference, they failed to appear. And they justified it saying
that the court has not resolved their motion for summary
judgment. Is it important to resolve motion for summary
judgment before conducting pre-trial? Apparently not. The
conduct of pre-trial is mandatory notwithstanding the motion
for summary judgment. And what are the effects? For plaintiff,
dismissal of the complaint. For defendant, court will allow
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plaintiff to present evidence ex parte just like in default. In
fact, it is an opportune time for them to raise this matter in
the pre-trial conference.

Asian Construction and Development Corporation v

PCI Bank
Judge Q: Very good example for an answer failing to render a
genuine issue. Hence, proper for summary judgment.

When there is no genuine issue as to any material fact and

the moving party is entitled to a judgment as a matter of law,
summary judgment may be allowed. Summary or accelerated
judgment is a procedural technique aimed at weeding out
sham claims or defenses at an early stage of litigation thereby
avoiding the expense and loss of time involved in a trial.

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RULE 36. JUDGMENTS, FINAL ORDERS AND ENTRY
THEREOF
There are three important stages in a civil action:
1. First stage: Issue Formulation Stage
2. Second Stage: Stage of Proof (Rule 30 on Trial)
3. Third Stage: Judgment Stage
Define judgment
Judgment is the final consideration and determination by a
court of the rights of those parties as those rights presently
exists, upon matters submitted to it in an action or proceeding.
A judgment is deemed final when it finally disposes of a
pending action, so that nothing more can be done with it in
the trial court.
How Final Judgment is Rendered
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.
Note: A final judgment on the merits of the case must be:
1. In writing
2. Personally and directly prepared by the judge
3. Stating clearly and distinctly the facts and the law on
which it is based
4. Signed by the judge
5. Filed with the clerk of court
Note: These are the formal requisites of a valid judgment.
The judgment shall be in writing
Bar Question: After the parties presented their evidence, the
judge asked the lawyers, “Are you going to argue?” The
parties said, “No more, Your honor. We are waiving our right
to argue.” So the judge dictated the decision to the clerk of
court. The judgment was against the defendant. The
defendant appealed next day. Do you count the period of
appeal from that date when he heard the decision?
A: NO. You still have to wait for the written decision.
Presumably, what is dictated by the judge will be transcribed.
From the time you receive it is the reckoning period for appeal,
notwithstanding the hearing of such decision in open court.
That is not yet the formal decision because under the law,
there is no such thing as oral decision. The judgment must be
in writing. Officially the decision is known to you on the date
you received the written judgment. Not the date when he
dictated it in your presence. There are judges before who
could do that. Even now those judges in Manila who became
justices today do practice such type of judgment. At present,
judges no longer possess such skill. They are given 90 days to
decide the issue and yet at times, they could not do so within
the period mandated by law. How much more on the spot
decision?
It shall be personally and directly prepared by the judge
It is presumed that the judgment will be made by the judge
himself. The judge should not designate the writing to other
people. There must be no ghost writer.
It shall state clearly and distinctly the facts and law on which
it is based
There must be a justification for the dispositive portion. It is a
requirement in the Constitution. Section 14, Article VII
I states, “No decision shall be rendered by any court
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
without expressing therein clearly and distinctly the facts and
the law on which it is based.”
Every decision of every court must state the facts and the law
on which it is based. It must be in every court, no exceptions,
whether SC or an MTC. The Constitutional provision on this
requirement applies to all courts from the highest to the
lowest.
However, the Judiciary Law allows the appellate court to make
a Memorandum Decision. If the CA will affirm the RTC, in
order to shorten the period for waiting for the decision and in
order to hasten it, Section 40 of BP 129 allows the appellate
court to simply quote verbatim the findings and conclusion of
the trial court and adopt it as its own.
Memorandum Decision
A memorandum decision is one rendered by an appellate court
and incorporates by reference the findings of fact and
conclusions of law contained in the decision or order under
review.
The reason for allowing the findings of facts and conclusions
of law to be incorporated by reference is to avoid the
cumbersome reproduction and repetition of the decision of the
lower court in the decision of the higher court. To be valid,
however, such decision must not simply incorporate the
findings of facts and the conclusions of the lower court by
reference. It must also provide direct access to the facts and
the law being adopted, which must be contained in a
statement attached to the decision and made an indispensable
part of the decision. The appellate court must make full
findings of fact and conclusions of law on its own.
Note: As long as a memorandum decision states the nature of
the case, summarizes the facts with references to the record,
and contains a statement of the applicable laws and
jurisprudence and the tribunal’s assessment and conclusions
on the case, the constitutional requirement of a valid
judgment will not be transgressed.
Does the law require a particular style of writing a
decision?
No, style is based on every individual, so long as the facts and
the law are distinctively stated. That is the minimum
requirement. The law does not care how you do it because
the manner of presenting the facts and the law and the
discussion is a matter of style. Every person has his own style,
and whether it is good or bad does not matter as long as you
comply with the law.
As held in Nicos Industrial Corp v CA, “Kilometric decisions
without much substance must be avoided, to be sure, but the
other extreme, where substance is also lost in the wish to be
brief, is no less unacceptable either.” Too long is bad, too
short is bad either. “The ideal decision is that which, with
welcome economy of words, arrives at the factual findings,
reaches the legal conclusions, renders its ruling and, having
done so, ends.” This means, brief but comprehensive.
Submission of decision
When is the case deemed submitted for decision?
A case is deemed submitted for resolution upon the filing of
the last pleading, brief or memorandum required by the Rules
of Court.
When must decision be made?
All cases filed must be decided or resolved by the Supreme
Court within 24 months from the date of their submission for
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decision, and unless reduced by the Supreme Court, within 12
months for all lower collegiate courts and three months for all
other lower courts. (Art. VIII, Sec. 15 (1), 1987 Philippine
Constitution)
Supreme Court 24 months
CA 12 months
RTC and MTC 3 months
The 90-day period for deciding the case commences from the
submission of the case for decision without memoranda. In
case the court requires or allows its filing, the case shall be
considered submitted for decision upon the filing of the last
memorandum, or the expiration of the period to do so,
whichever is earlier. In cases where the court allows the filing
of memoranda, no further orders announcing the submission
of the case for decision is necessary before they are deemed
submitted for decision.
As a general principle, rules prescribing the time within which
certain acts must be done, or certain proceedings taken, are
considered absolutely indispensable to the prevention of
needless delays and to orderly and speedy discharge of official
business.
Extension of the period to render a decision
An extension of the period to render a decision may be set by
the Supreme Court upon request by the judge concerned on
account of heavy caseload or by other reasonable excuse.
Without an extension granted by the court, a delay in the
disposition of the case is tantamount to gross inefficiency on
the part of the judge.
Rendition of Judgment, when
Rendition of judgment is the filing of the same with the clerk
of court. It is not the pronouncement of the judgment in open
court that constitutes the rendition. Even if the judgment has
already been put in writing and signed, it is still subject to
amendment if it has not yet been filed with the clerk of court
and before its filing does not yet constitute the real judgment
of the court. It is not the writing of the judgment or its signing
which constitutes rendition of the judgment.
However, a minute resolution can be issued by the Supreme
Court in the dismissal of petitions for review on certiorari.
➢ Date of promulgation- date that the signed decision is
delivered to the court
➢ Promulgation of judgment- the process by which a
decision is published, officially announced, made known
to the public or delivered to the COC for filing, coupled
with notice to the parties or their counsel.
Minute Resolution
When the SC denies your petition for certiorari in one sentence
only, it simply means that the decision of the lower court is
correct. Remember, the petition for certiorari under Rule 65 is
not a matter of right. In fact, Appeal by Certiorari under Rule
45 is not a matter of right- it is a matter of privilege. The court
may always deny it if it finds that your petition for certiorari is
unmeritorious.
Section 2. Entry of judgments and final orders. – If no
appeal or motion for new trial or reconsideration is filed within
the time provided in these Rules, the judgment or final order
shall forthwith be entered by the clerk in the book of entries
of judgments. The date of finality of the judgment or final
order shall be deemed to be the date of its entry. The record
shall contain the dispositive part of the judgment or final order
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
and shall be signed by the clerk, with a certificate that such
judgment or final order has become final and executory.
Note: The date of the finality of judgment or final order shall
be deemed to be the date of its entry.
Why is it relevant to know the entry of judgment?
It is relevant because there are some remedies provided for
by the Rules that you can avail of based on the Entry of
Judgment and not on the basis of the day the judgment
becomes final.
Examples:
(a) the execution of a judgment by motion is within five (5)
years from the entry of the judgment;
(b) the filing of a petition for relief has, as one of its periods,
not more than six (6) months from the entry of the judgment
of final order.
Types of Judgment
1. Judgment for or against one or more several parties
2. Several judgment
3. Separate judgment
4. Judgment for specific act
5. Special judgment
6. Judgment nunc pro tunc
7. Judgment upon compromise
8. Judgment upon confession
9. Clarificatory judgment
10. Sin perjuico judgment
11. Conditional judgment
12. Incomplete judgment
13. Judgment upon the merits
14. Judgment by default
15. Judgment on the pleadings
16. Summary judgment
17. Judgment for specificator
18. Judgment on demurrer to evidence
19. Final judgment
20. Amended and supplemental judgment
Discussion:
Several Judgment
It is a judgment rendered by a court against one or more
defendants, but not against all, leaving the action to proceed
against the other.
Judgment Nunc Pro Tunc
“Nunc pro tunc” is a Latin phrase that means “now for then.”
A judgment nunc pro tunc is made to enter into the record an
act previously done by the court, which had been omitted
either through inadvertence or mistake. A judgment nunc pro
tunc is one intended to enter into the record acts which had
already been done, but which do not yet appear in the record.
Parties seeking the issuance of a nunc pro tunc judgments or
orders must allege and prove that the court took a particular
action and that the action was omitted through inadvertence.
It is an order of the court requiring a retroactive re-dating of
an order, judgment or document filing be entered or recorded
in a judgment. The object of a judgment nunc pro tunc is not
the rendering of a new judgment and the ascertainment and
determination of newer rights, but is one placing in proper
form on the record, the judgment that had been previously
rendered, to make it speak the truth, so as to make judicial
errors, such as to render a judgment which the court ought to
have rendered, in place of the one it did erroneously render,
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nor to supply non-action by the court, however erroneous the
judgment may have been. In a sense, it is a correction of
clerical and not a judicial error.
Judge Q example: For instance, when a judge renders
decision, he must base it on the trial or evidence presented
but due to his inadvertence, he failed to include certain
important facts so there were portions of the decision omitted.
So as a remedy, court may include those matters that were
missed so judge now has an improved decision so there is
already a former judgment although there is an incomplete
one. So what are to be added are things that actually
happened. The judge has no right to include something which
did not transpire during the hearing-that is to be considered
as highly irregular.
In what cases is a judgment nunc pro tunc NOT
proper?
A judgment nunc pro tunc is not proper in the following
instances:
1. It cannot remedy errors or omission in an imperfect or
improper judgment.
2. It cannot change the judgment in any material respect
3. It cannot correct judicial errors, however, flagrant and
glaring they may be.
Judge Q: Only allowed if it will only make a correction to
include those that were inadvertently admitted those that
transpired during the hearing.
Judgment upon a Compromise
A judgment upon a compromise is one rendered by the court
on the basis of a compromise agreement entered into
between the parties to the action.
It is rendered with the consent of the parties for the purpose
of effecting a compromise or settlement of an action. This is
the type of judgment which the law encourages because it is
a judgment with the consent of the parties for the purpose of
effecting a compromise or settlement.
Judgment upon compromise is the only judgment that is
immediately executory.
In a compromise judgment, is the court required to
make findings of fact and conclusions of law? Why?
In a compromise judgment, the court is not required to make
findings of fact and conclusions of law. In contemplation of
law, the court is deemed to have adopted the statement of
facts and conclusions of law made and resolved by the parties
themselves in their compromise agreement; and their consent
has made it both unnecessary and improper for the court to
make a preliminary adjudication of the matters thereunder
covered.
How do you define a compromise?
Under Art. 2028 of the Civil Code, a compromise agreement is
defined as “a contract whereby the parties, by making
reciprocal concessions, avoid litigation or put an end to one
already commenced.”
What is the effect of a compromise agreement entered
into by a lawyer without any special authority from his
client? Is it a null and void agreement?
A lawyer cannot, without special authority, compromise his
client’s litigation. A judgment upon a compromise entered by
the court, not subscribed by the party sought to be bound by
the compromise agreement, and in the absence of a special
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
authority to the lawyer to bind his client in the said agreement,
it is unenforceable.
Judge Q: It must always be remembered that the compromise
must be entered into by the parties and if not, one duly
authorized by him or her. one way of proving authority is
through SPA. If no authority, then compromise will be
invalidated.
Suppose the client learned about what his lawyer did
and he did not reject the agreement, as a matter of
fact he complied with it, what is now the effect on such
agreement?
The agreement is now perfectly valid and enforceable because
the party himself did not question his lawyer’s authority. When
it appears that the client, on becoming aware of the
compromise and the judgment, failed to repudiate promptly
the action of his lawyer, he will not afterwards be heard to
contest it.
Effect of judgment based on a compromise
1. The compromise judgment is not appealable and it is
immediately executory.
2. It cannot be annulled unless it is vitiated with error,
deceit, violence or forgery of documents.
3. It constitutes res judicata.
a. However, the compromise agreement cannot be
executed without the agreement being converted
into a judicial compromise.
Suppose you enter into a compromise agreement and
there is a judgment. You want to escape from the
compromise judgment on the ground that your
consent was vitiated by mistake, error, deceit,
violence. How do you question it? What is your
remedy?
The correct remedy is for the party to file an action for
annulment of judgment before the CA pursuant to Section 9,
par.2 of the Judiciary Law.
The parties may submit a compromise agreement at any stage
of the case, even if judgment has already become final and
executory, and even without the approval of the court.
Judgment Upon a Confession (Cognovit Actionem)
This is a judgment rendered by the court when a party
expressly agrees to the other party’s claim or acknowledges
the validity of the claim against him. It is one entered against
a person upon his admission or confession of liability without
the formality, time and expense involved in an ordinary
proceeding.
Two kinds of judgment by confession:
1. Judgment by Cognovit Actionem
a. A judgment upon a confession is also known as
“cognovit judgment.”
b. The defendant after service instead of entering a plea
acknowledges and confesses that the plaintiff’s cause
of action is just and rightful.
c. Also known as “no contest” in American Law
2. Judgment by confession relicta verification
a. After pleading and before trial, the defendant both
confessed the plaintiff’s cause of action and withdrew
or abandoned his plea or other allegations,
whereupon judgment is entered against him without
proceeding to trial.
b. Allowed but one has to do it himself and must not be
done in advance.
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Judgment upon
compromise
Liability of the defendant is
to be determined in
accordance with the terms
of the agreement of the
parties
There is give and take; the
parties haggle, bargain and
agree on the terms of
judgment; there is mutual
or reciprocal concessions
The provisions and terms
are settled and agreed upon
by the parties to the action,
and which are entered in
the record by the consent of
the court
Remedy against judgment by consent, confession or
compromise
File a motion to set it aside then if denied file a petition under
65 which is appropriate.
Judgment upon confession
Defendant confesses the
action and consents to the
judgment that the court
may render in accordance
with the compromise and
the prayer therein
Unilateral. It comes from
the defendant who admits
his liability and accepts that
judgment be rendered
against him.
An affirmative and voluntary
act of the defendant
himself. The court exercises
a certain amount of
supervision over the entry
of judgment.
It is rendered to clarify an ambiguous judgment or one difficult
to comply with.
Where the judgment is difficult to execute because of
ambiguity in its terms, the remedy is to file a motion for
clarificatory judgment and not to assail the judgment as void.
Promulgation of judgment
This refers to the process by which a decision is published,
officially announced, made known to the public or delivered to
the clerk of court for filing, coupled with notice to the parties
or their counsel.
Promulgation of judgment
1. The court renders a decision
2. After receipt of notice, the losing party has the following
options:
a. Accept the decision without further contest in which
case the judgment becomes final and the period to
appeal has lapsed
b. Contest the judgment in which case he can
i. File an appeal within 15/30 days from notice of
judgment
ii. File a motion for reconsideration or a motion for
new trial within the period to appeal reckoned
from notice of judgment.

Conditional Judgment If he filed a motion for recon or motion for new trial, two
A conditional judgment is one which is subject to the possibilities can happen:
performance of a condition precedent and is not final until the 1. If granted, the court can modify the decision or allow new
condition is performed. It is one wherein the effectivity of trial
which depends upon the occurrence or non-occurrence of an 2. If denied, the losing party may appeal within a fresh
event. period of 15 days from notice of denial

Is a conditional judgment valid? Amendment of judgment; supplemental judgment

No, it is not valid. In truth, such judgment contains no
disposition at all and is a mere anticipated statement of what
the court shall do in the future when a particular event should
happen. For this reason, as a general rule, judgments of such
kind, conditioned upon a contingency, are held to be NULL
and VOID.
Incomplete Judgment
An incomplete judgment is one which leaves certain matters
to be settled in a subsequent proceeding. There is a decision
but there are still other matters to be incorporated later in
such decision.
The power to amend a judgment is inherent to the court
before judgment becomes final and executory
GR: After judgment has become final and executory, the court
cannot amend the same.
XPN:
1. To make corrections of clerical error, not substantial
amendments, as by an amendment nunc pro tunc
2. To clarify an ambiguity which is borne out by and
justifiable in the context of the decision
3. In judgments for support, which can always be amended
from time to time

This is like an interlocutory judgment. This judgment is Note: An amended judgment, however, should not be
defective since a judgment can never become final, it having confused with a supplemental judgment. The amended
left certain matters to be settled for its completion in a decision is an entirely new decision which supersedes or takes
subsequent proceeding. the place of the place of the original decision.

Sin Perjuicio Argument
It is a judgment that violates the requirements in Section 15,
Article VIII of the Constitution insofar as it is without
statements of facts to support its conclusions. It is one which
contains only the dispositive portion of the decision and
reserves the making of findings of fact and conclusions of law
in a subsequent judgment.
Is a sin perjuicio judgment valid?
No, it is a void judgment.
Judgment upon the Merits
It is one that is rendered after consideration of the evidence
submitted by the parties during the trial of the case.
GR: The validity of a judgment order of a court cannot be
collaterally attacked.
XPN:
1. Lack of jurisdiction
2. Irregularity of its entry apparent from the face of the
record
Section 3. Judgment for or against one or more of
several parties. – Judgment may be given for or against one
or more of several plaintiffs, and for or against one or more
of several defendants. When justice so demands, the court
may require the parties on each side to file adversary
pleadings as between themselves and determine their
ultimate rights and obligations.

Clarificatory judgment
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Suppose there are 2 plaintiffs A and B, can the court
render judgment in favor of plaintiff A and against
plaintiff B? Or, is it possible that in one case, one
defendant will win and the other defendant will lose?
YES, especially when the causes of action or defenses are not
the same. One may invoke a defense that is only applicable to
him but not applicable to others.

Section 4. Several judgments. – In an action against

several defendants, the court may, when a several judgment
is proper, render judgment against one or more of them,
leaving the action to proceed against the others.

Note: Several judgment is one rendered by a court against

one or more defendants and not against all of them leaving
the action to proceed against the others.

Several judgment is proper where the liability of each party is

clearly separable and distinct from his co-parties such that the
claims against each of them could have been the subject of
separate suits, and the judgment for or against one of them
will not necessarily affect the other. A several judgment is not
proper in an action against solidary debtors.

Is it possible that more than one judgment will arise

in a civil action?
Yes, there’s a judgment in favor of the plaintiff against the
defendant and the trial still continues with respect to other
defendants. That would involve more than one decision.
Judgment in favor of one defendant is rendered already but
the trial will continue with respect to other defendants is
possible under Section 4.

Section 5. Separate judgments. – When more than one

claim for relief is presented in an action, the court, at any
stage, upon a determination of the issues material to a
particular claim and all counterclaims arising out of the
transaction or occurrence which is the subject matter of the
claim, may render a separate judgment disposing of such
claim. The judgment shall terminate the action with respect to
the claim so disposed of and the action shall proceed as to the
remaining claims. In case a separate judgment is rendered,
the court by order may stay its enforcement until the rendition
of a subsequent judgment or judgments and may prescribe
such conditions as may be necessary to secure the benefit
thereof to the party in whose favor the judgment is rendered.

Note: Separate judgment is one rendered by a court disposing

of a claim among several others, presented in a case after
determination of the issues material to a particular claim and
all counterclaims arising out of transaction or occurrence
which is the subject matter of said claim.

It is proper where more than one claim for relief is presented

in an action and a determination as to the issues material to
the claim has been made. The action shall proceed as to the
remaining claims.

Section 6. Judgment against entity without juridical

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

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POST-JUDGMENT REMEDIES from receipt entry of laches or
of notice judgment. estoppel
Remedies before a judgment becomes final and
executory Spectrum of Remedies
a. Motion for reconsideration
o Prohibited in a case under summary procedure Plaintiff Defendant
b. Motion for new trial Rule 17: Dismissal of Action Motion to Dismiss;
o Prohibited in a case under summary procedure Affirmative defenses
c. Appeal Rule 34: Judgment on the Rule 33: Demurrer to
pleadings evidence
Remedies after judgment becomes final and executory Rule 35: Summary
a. Petition for relief from judgment judgment
b. Action to annul a judgment Rule 37: Motion for new Rule 37: Motion for new
c. Certiorari trial/ reconsideration trial/ reconsideration
d. Collateral attack of a judgment Rule 40-45: Appeals Rule 40-45: Appeals
Rule 38: Petition for relief Rule 38: Petition for relief
When does a judgment become final and executory?
Rule 47: Annulment of Rule 47: Annulment of
A judgment becomes executory upon the expiration of the
judgment judgment
period to appeal from a judgment or order that finally disposes
of the action or proceeding, if no appeal has been duly
perfected. A judgment also becomes executory after an
appeal taken from the judgment or order has been finally
resolved.

On the other hand, within the period for appeal, reckoned

from the notice of the judgment or final order, the said
judgment or final order is not yet executory except those
judgments which, under the Rules are immediately executory.
Such judgments are enforceable after their rendition and shall
not be stayed by an appeal taken therefrom.

Thus, the remedies against a judgment would necessarily

refer to those remedies (a) before a judgment becomes final
and executory, and (b) after the same becomes executory.

What is the effect when judgment becomes final and

executory?
Under Rule 36, the court loses jurisdiction over the case. The
decision cannot be changed anymore. But as long as
judgment is not yet final, the court can change the decision.

What is the effect of filing a motion for new trial or

reconsideration on the period to appeal?
The period to appeal is suspended. Period to appeal is
suspended except if your motion for new trial or
reconsideration is pro-forma.

Motion for New Petition for Action to Annul

Trial Relief from Judgment
Judgment
Grounds: Grounds: Grounds:
1. Extrinsic 1. Extrinsic 1. Extrinsic
fraud fraud fraud
2. Accident 2. Accident 2. Lack of
3. Mistake of 3. Mistake of jurisdiction
fact fact over the
4. Excusable 4. Excusable subject
negligence negligence matter
Period of filing: Period of filing: Period of filing:
1. Within fifteen 1. Within sixty 1. Extrinsic
days from (60) days fraud- within
receipt of after four years
notice of petitioner from
judgment or learns of the discovery
final order judgment or 2. Lack of
(Notice of order, and jurisdiction-
Appeal); or not more before
2. Within thirty than six (6) barred by
(30) days months after
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CIVPRO |
RULE 37. NEW TRIAL OR RECONSIDERATION
Object of the Motion
The motion for reconsideration referred to under Rule 37 is
one that is directed against a judgment or a final order. It is
not the motion for reconsideration of an interlocutory order
which normally precedes a petition for certiorari under Rule
65.
Motion for reconsideration in cases covered by
summary procedure
A motion for reconsideration of a judgment is a prohibited
motion in a case that falls under the 1991 Revised Rules on
Summary Procedure. The motion is also prohibited in actions
for unlawful detainer and forcible entry, such actions being
governed by the Rules on Summary Procedure.
Motion for Reconsideration in Small Claims Cases
A motion for reconsideration of a judgment is prohibited under
Sec. 16 © of the Rules of Procedure in Small Claims Cases, as
amended.
Motion for reconsideration in petitions for writ of
amparo and habeas data
In a petition for writ of amparo and habeas data, the motion
for reconsideration that is prohibited is one directed against
an interlocutory order or interim relief order. The rule does
not proscribe the filing of a motion for reconsideration of the
final judgment or order that grants or denies a writ of amparo.
The same rule applies in a petition for a writ of habeas data.
Motion for reconsideration in environmental cases
A motion for reconsideration of a judgment is allowed.
Does the mere filing of a motion for reconsideration
cure the due process defect?
No, the mere filing of a motion for reconsideration cannot cure
the due process defect, especially if the motion was filed
precisely to raise the issue of violation of the right to due
process and the lack of opportunity to be heard on the merits
remained.
In other words, if a person has not been given the opportunity
to squarely and intelligently answer the accusations or rebut
the evidence presented against him, or raise substantive
defenses through the proper pleadings before a quasi-judicial
body where he or she stands charged, then a due process
problem exists. This problem worsens and the denial of his
most basic right continues if, in the first place, he is found
liable without having been charged and this finding is
confirmed in the appeal or reconsideration process without
allowing him to rebut or explain his side on the finding against
him.
Motion for new trial in cases covered by summary
procedure
A motion for new trial is a prohibited motion in a case that
falls under the 1991 Revised Rules on Summary Procedure.
Motion for new trial in small claims cases
A motion for new trial is prohibited under Sec. 16 © of the
Rule of Procedure in Small Claims Cases, as amended.
Motion for new trial in environmental cases
In environmental cases, a motion for new trial is allowed in
highly meritorious cases or to prevent a manifest miscarriage
of justice.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Grounds for New Trial
Section 1. Grounds of and period for filing motion for
new trial or reconsideration. – Within the period for taking
an appeal, the aggrieved party may move the trial court to set
aside the judgment or final order and grant a new trial for one
or more of the following causes materially affecting the
substantial rights of said party:
(a) Fraud, accident, mistake or excusable negligence which
ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been
impaired in his rights; or
(b) Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced at the
trial, and which if presented would probably alter the result.
Within the same period, the aggrieved party may also move
for reconsideration upon the grounds that the damages
awarded are excessive, that the evidence is insufficient to
justify the decision or final order, or that the decision or final
order is contrary to law.
Note: Rule 37 refers to remedies available AFTER judgment
but BEFORE judgment becomes final.
There are two remedies mentioned in Rule 37:
a. Motion for new trial
b. Motion for reconsideration
When filed
Within the period for taking an appeal
Judge Q: The period for taking an appeal is within 15 days
within notice of the denial. After that period, the judgment
becomes final.
Note: No motion for extension of time to file in a motion for
new trial or reconsideration shall be allowed. (Sec. 3, Rule 41,
Rules of Court)
Effect of the filing of a motion on the period to appeal
The timely filing of a motion for reconsideration interrupts the
period of appeal.
Grounds for New Trial
1. Fraud, accident, mistake, and excusable negligence
(FAME)
2. Newly discovered evidence
Note: Fraud must refer only to extrinsic fraud.
Judge Q: In both grounds, these must materially affect
substantial rights. These must tackle the main issues and not
the side issues.
FAME
This means you were not able to answer and participate in the
trial which resulted already to the rendition of judgment that
is adverse to you because of FAME.
Actually, this MNT is a continuation to the remedy given to
you under Rule 9- Declaration of Default.
When a complaint is filed against you, you are supposed to
file an Answer within 30 days. If you failed to Answer the
complaint within the reglementary period, you may be
declared in default. The plaintiff will ask the court that you be
declared in default because the court cannot motu proprio
declare you in default.
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After the declaration of default, the court will allow the plaintiff
to present evidence ex parte. If you discovered that you have
already been declared in default but the court has not yet
rendered judgment in that case, your first remedy is to file a
Motion to Lift the Order of Default or Motion to Set Aside the
Order of Default under the ground of FAME.
If you convinced the judge that there is a justified reason why
you failed to file an Answer, then you will be allowed to file
your Answer. If you did not know about the case until the
court renders judgment by default, it is only after the
judgment was rendered that you discovered about the case –
your remedy is Motion for New Trial on the ground of FAME.
Ground Definition
Fraud The fraud must be extrinsic.
Any fraudulent scheme
executed outside of the trial
by the prevailing party
against the losing party,
who, because of such fraud,
is prevented from
presenting his side of the
case, or judgment was
procured without fair
submission of the
controversy
Mistake It may either be a mistake
of fact or mistake of law
made in good faith by the
defendant who was misled
in the case
Excusable negligence It must be one that is
imputable to the party.
the trial of the case, whereby the defeated party was
prevented from presenting fully his side of the case by
deception practiced on him by the prevailing party.
The use of forged instruments, or perjured testimonies during
trial is not an extrinsic fraud. Such evidence does not preclude
a party’s participation in the trial (Bobis vs. CA 348 SCRA 23;
Strait Times vs. CA GR 126673 August 28, 1998). Offering
perjured testimony or offering manufactured evidence is
intrinsic and not extrinsic fraud.
Intrinsic fraud is not sufficient to annul a judgment (Conde vs.
IAC GR L-70443, Sept, 15, 1986). INTRINSIC FRAUD is that
fraud which was an issue in the litigation such as perjury, false
testimony, concealment of evidentiary facts, but did not
prevent you from presenting your case. That is not a ground
for annulment of judgment. So take note of that principle.
Judge Q: If the plaintiff has talked about a compromise but
plaintiff’s true intention is to defraud defendant. This is a
simple example. For this purpose, this can be used as a
ground by the defendant to file a motion for new trial because
this has substantially affected his right to be heard.
Accident
Accident is something unforeseen, something unexpected or
unanticipated.
When is accident a sufficient ground for new trial?
Example: A party failed to appear in court because he got sick
at the last minute. Or, in the middle of the trial, the lawyer of
the party becomes sick. With that, the complaint was
dismissed or there was a judgment against you. You can move
for new trial on the ground of accident.

Note: Negligence of counsel Example: The defendant was declared in default because he
is binding on the client did not file an answer but actually he filed an answer through
except if it was so great as mail, but somehow the post office did not deliver it to the
to prejudice the client and court. That is an accident. With that, I can move for new trial
prevent fair presentation of or lift the order of default.
the case.
Example: The trial was this morning. But I received only the
For the grounds of fraud, mistake, or excusable negligence, notice of trial on March 9, 1998 stating that the trial is on
attachment of affidavit of merit is required; otherwise, it would March 5. So the notice of hearing was received days after the
be a pro forma motion. scheduled date. That is an accident which is a ground for new
trial.
A Motion based on FAME- supported by affidavits of merit
which may be rebutted by affidavits GR: A client is bound by the mistakes of his lawyer and he
A motion based on newly-discovered evidence- supported by cannot file a motion for new trial on the ground of mistake of
affidavits of the witnesses by whom such evidence is expected his lawyer.
to be given, or by duly authenticated documents which are XPN: When the decision is based on equity like in the case of
proposed to be introduced in evidence. People v Manzanilla

Fraud It was held in the aforementioned case that, “A new trial is

Fraud is regarded as extrinsic or collateral in character where
it prevents a party from having a trial or from presenting his
entire case to the court, or where it operates upon matters
pertaining not to the judgment itself but to the manner in
which it is procured. The overriding consideration when
extrinsic fraud is alleged is that the fraudulent scheme of the
prevailing litigant prevented a party from having his day in
court. This kind of fraud prevents the aggrieved party from
having a trial or presenting his case to the court, or is used to
procure the judgment without fair submission of the
controversy, as when there is a false promise of a compromise
or when one is kept ignorant of the suit.
Stated in another way, extrinsic fraud exists when there is a
fraudulent act committed by the prevailing party outside of
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
sometimes granted where the incompetency or negligence of
the party’s counsel in the conduct of the case is so great that
party’s rights are prejudiced and he is prevented from
presenting his cause of action or defense.
Judge Q: If the accident is the cause why the party failed to
present his evidence due to accident- fortuitous event. It could
also be used as a ground for new trial.
Mistake
Judge Q: Must be done in good faith. One must establish that
the reason why the party was not able to present evidence
because of an honest mistake but we have this principle in law
that the mistake of a lawyer will not bind his client but always
remember that the degree of mistake is different when it is
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caused by his lawyer. So when we say a plain and simple
mistake like forgetting the date of hearing, I don’t think this is
acceptable.
But in certain occasions, based on equity, the court allowed
the mistake of a lawyer, as an excusable mistake that has
effectively deprived the party from presenting his evidence,
the court relaxed this particular rule.
Excusable Negligence
Gross negligence of counsel is not a ground for new trial.
However, it is sometimes difficult to determine whether the
negligence is excusable or inexcusable.
When is negligence excusable and when is it
inexcusable?
Our only guide here is decided cases because there are many
cases where the SC said that, it is excusable so we will grant
a new trial.
Inexcusable Negligence, Examples
Example: If a defendant lost a case because his lawyer failed
to file an answer. And the excuse of the lawyer was, “I forgot
about the deadline. Nalimutan ko. I did not keep tract of the
deadline to file an answer.” And the SC said, “No dice. That is
not excusable on the part of the lawyer.”
Example: Your case was dismissed because you failed to
appear in court. Here comes now your lawyer asking for new
trial on the ground of excusable negligence, “I failed to appear
in court because I again forgot about that schedule” or
“because I failed to wake-up because the night before, I and
my friends went to a (Wigmore) party and I went home
drunk.” Do you think the SC will honor that? Is that excusable?
Of course not
Excusable Negligence, Examples
Example: The answer has to be filed the following day. The
lawyer told the secretary, “I’m leaving tonight. I’ll come back
one week later. You better file tomorrow the answer because
tomorrow is the deadline.” Then he left but the secretary failed
to file it because she also got sick. Ayan. Nagkapatong-patong
na ang malas. Excusable iyan.
When Motion for New Trial based on FAME not accompanied
by affidavit of merits
GR: Denied
XPNS:
1. The court has no jurisdiction over the defendant/ subject
matter, so the judgment is null and void
2. The judgment is defective as where a judgment by
default was rendered even before the reglementary
period to answer had expired
3. The defendant was deprived of his day in court as when
no notice of hearing was furnished him.
Judge Q: These grounds should be examined on a case to
case basis.
Newly Discovered Evidence
Elements:
a. The evidence was only discovered after trial
b. It could not have been discovered and produced at the
trial even with the exercise of reasonable diligence
c. The evidence is of such weight that if admitted, would
probably alter the result of the action
d. It must be material and not merely collateral, cumulative,
or corroborative.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Judge Q: When you say corroborative, it carries the same
evidentiary weight as those already presented so it does not
really alter the result.
Note: These standards, also known as the “Berry rule”, trace
their origin to the 1851 case of Berry v State of Georgia.
Newly discovered evidence need not be newly created
evidence. It may and does commonly refer to evidence
already in existence prior or during trial but which could not
have been secured and presented during the trial despite
reasonable diligence on the part of the litigant.
N.B. Newly discovered evidence does not refer to forgotten
evidence.
New Trial v Reopening of Trial
A new trial is a remedy that seeks to temper the severity of a
judgment or prevent a failure of justice. The grant of a new
trial, is generally speaking, addressed to the sound discretion
of the court which cannot be interfered with unless a clear
abuse thereof is shown.
New trial is different from reopening of trial. In the former,
there is already a decision of the court after trial while in
reopening of trial, there is yet no decision and you want to
introduce additional evidence which you forgot to present.
New Trial Reopening of Trial
There is already a decision There is yet no decision and
of the court after trial. you want to introduce
additional evidence which
you forgot to present
Done after promulgation of Properly presented after
judgment either or both parties have
formally offered and closed
evidence before judgment
What will you do?
You ask the court for the reopening of the trial for you to be
allowed to present such evidence.
Motion for Reconsideration
Judge Q: Motion for reconsideration is what is ordinarily filed
by the losing party. A losing party can file a MR also within the
same period to perfect an appeal.
Grounds for a motion for reconsideration
1. The damages awarded are excessive
a. That means you admit that you lost the case but the
damages awarded was too much. You can ask the
court to lower the damages awarded.
2. The evidence is insufficient to justify the decision or final
order.
a. You argue that the decision of the case is not
supported by sufficient evidence- the evidence
presented by the prevailing party is not enough to
justify a decision in his favor.
3. The decision or final order is contrary to law.
a. You have to point the part of the decision which is not
supported by sufficient evidence or which are contrary
to law.
Judge Q: The last two are the common grounds used by
practitioners or the losing party.
What is the effect of failure to comply with the
requirements?
Your motion will be treated as a pro forma motion.
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An instance of a pro-forma motion is when you only reiterate
what has already been stated in your Memorandum, obviously
your purpose is only to delay the disposition of the case and
that will be treated a pro forma motion.
If it contains same arguments and manner of discussion
appearing in your opposition to the motion to dismiss, that
motion will also be considered as a pro forma motion.
Motion for reconsideration
A Motion for Reconsideration shall point out specifically the
findings or conclusions of the judgment or final order which
are not supported by the evidence or which are contrary to
law, making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to
be contrary of such findings or conclusions.
Note: A pro forma Motion for New Trial or Motion for
Reconsideration shall not toll the reglementary period of
appeal.
Contents of Motion for New Trial or Reconsideration
and Notice Thereof
Section 2. Contents of motion for new trial or
reconsideration and notice thereof. – The motion shall be
made in writing stating the ground or grounds therefor, a
written notice of which shall be served by the movant on the
adverse party.
A motion for new trial shall be proved in the manner provided
for proof of motions. A motion for the cause mentioned in
paragraph (a) of the preceding section shall be supported by
affidavits of merits which may be rebutted by affidavits. A
motion for the cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by whom such
evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.
A motion for reconsideration shall point out specifically the
findings or conclusions of the judgment or final order which
are not supported by the evidence or which are contrary to
law, making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to
be contrary to such findings or conclusions.
A pro forma motion for new trial or reconsideration shall not
toll the reglementary period of appeal.
Judge Q: I would like to direct your attention to this, “a written
notice of which shall be served by the movant on the adverse
party”. This one is a bit curious because the rules on motion
have been amended. Prior to the 2019 amendment, the rule
says that a moving party must include in his motion a notice
of hearing notifying the opposing party that the motion shall
be submitted for the resolution of the court on said date and
time and it shall be served upon the parties at least 3 days
before the hearing. However, prior to the amendment, it has
already been deleted. Somehow, for a motion for new trial,
the contents thereof will include a written notice, a notice of
hearing. So how are we going to harmonize this apparent
conflict? Considering also that under the 2019 Amendments,
a hearing is not necessary. So, considering that the rules have
been altered or changed, we can already do away with this
written notice if one files a motion for new trial or
reconsideration. Although this one has not been modified
under the new rules, we can also consider that this is impliedly
deleted but we’ll see once this particular matter is subject to
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
interpretation in a given case. But for now, there is no need
of notice.
Note: A motion for new trial will not toll the running of the
reglementary period to appeal if not accompanied by an
affidavit of merit because it will be treated as a pro forma
motion. The affidavit of merit must not only allege that the
movant has a meritorious defense, he must recite and
describe the facts constituting FAME.
What should be the form of a motion for new trial?
It must be in writing. You must state the ground or grounds
for the motion, whether it is FAME or newly discovered
evidence. Then, of course, you must serve a copy of the
motion to the adverse party. Meaning, you comply with all the
requisites of a valid motion.
Requirements when the ground is F.A.M.E.
A motion for new trial based on FAME must include an affidavit
of merit, which states:
a. The nature or character of FAME
b. The facts constituting the movant’s good and substantial
defense or valid cause of action
c. The evidence which he intends to present if his motion is
granted.
Affidavit of merits
The affidavit of merits, must be one showing the facts (not
mere conclusions or opinions) constituting the valid cause of
action or defense which the movant may prove in case a new
trial is granted, because a new trial would serve no purpose
and would just waste the time of the court as well as the
parties if the complaint is after all groundless or the defense
is nil or effective.
An affidavit of merits is one which recites the nature and
character of FAME on which the motion is based and stating
the movant’s good and substantial cause of action or defense
and the evidence he intends to present if the motion is
granted, which evidence should be such as to warrant
reasonable belief that the result of the case would probably
be otherwise. (Paz v Inandan)
Judge Q: An affidavit of merit is mandatory because you will
allege factual matters for a new trial, it must be under oath
because if one is under oath, the propensity of making made-
up facts is very few and this is to ensure that whatever
allegations you make is a real fact.
The same purpose for the second ground, under pain of
perjury if he provides falsehoods. This is also to help the court
in assessing the grounds relied upon are meritorious or not so
that’s the purpose of requiring affidavits of merit.
Effect of no affidavit of merit? Motion will be immediately
denied.
Two types of pro-forma motion for new trial
1. It is a motion for new trial which does not comply in
substance or in form with Sections 1 and 2 of Rule 37.
2. A second motion for new trial on a ground available to
the party when the first motion was filed
When Motion for New Trial considered pro forma:
There are several rulings in the Supreme Court regarding pro-
forma motions. When is it considered a pro-forma motion?
1. Based on the same ground raised in preceding Motion for
New Trial or Motion for Reconsideration already denied
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2. Contains the same arguments and manner of discussion
in the prior opposition to a motion to dismiss which was
granted
3. The new ground alleged in the 2nd Motion for New Trial
was available and could have been alleged in the first
MNT which was denied
4. Based on the ground of insufficiency of evidence/ that the
judgment is contrary to law, but does not specify the
supposed defects in judgment
5. Based on FAME but does not specify the facts constituting
these grounds and/or is not accompanied by an affidavit
of merits.
6. Non- compliance with the requirements of Rule 15
Judge Q: The one consistently held by the SC but to me is not
applicable is the failure to indicate notice of hearing. That is
no longer required but as what I’ve said earlier, might as well
include it in your motion lest your motion be denied for failure
to follow the requirements under Section 2.
Is mere repetition of the issues raised considered a ground for
a motion to be treated as pro-forma? No, since pro-forma
means non-compliance with the requirements of Section 2.
(note: was not able to follow this)
What is the effect of a pro-forma motion for new trial?
The period to appeal is NOT interrupted by the filing of such
motion for new trial. Even the right to appeal may be forfeited
because of this defect.
Can you file a motion for reconsideration by just
simply stating that “the decision is wrong or contrary
to law” or “the findings of the judge are not supported
by evidence?”
No. Under Section 2, 3rd paragraph, you must point out
specifically the findings or conclusions of the judgment or final
order which are not supported by the evidence or which are
contrary to law, making express reference to the testimonial
or documentary evidence or to the provisions of law alleged
to be contrary to such findings or conclusions.
What happens when you file a motion for
reconsideration without making any reference,
exhibit, etc? Meaning, you did not comply with the 3 rd
paragraph
Your motion will be denied because it is pro-forma.
Another point: When you file a motion for reconsideration on
the ground that the judgment is contrary to law, it is not
enough for you to say that. You must always point out clearly
why it is contrary to law, otherwise your motion will be denied
or treated as pro-forma.
Judge Q: The term used by the rules is that “you must point
out why it is contrary to law.”
A lawyer worth his salt must always remember this rule. He
must be keen in applying this particular rule. There are even
a lot of decisions of SC in notices of hearing. When in doubt,
in the meantime, just, for the sake of compliance with the
form provided under Section 2, I would advise that you must
include a notice of hearing in your motions because that might
be used against you if you do not follow the rules. But it is my
humble submission that this must be modified.
Blockmate’s Question: If you already filed a motion to appeal,
are you already not allowed to file a motion for new trial or
reconsideration?
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Judge Q answer: That would already be inconsistent because
once you file an appeal or appeal per se is perfected, the lower
court will automatically lose jurisdiction. IOW, he can no
longer issues relating to the case so a notice of
reconsideration or new trial should be addressed to the lower
court and not the appellate court. When you perfect an
appeal, the lower court already loses jurisdiction. And the
objective of a motion for reconsideration is to give the lower
court an opportunity to correct itself if it issues a contrary
judgment.
Effects when Motion is Granted
Section 6. Effect of granting of motion for new trial. –
If a new trial is granted in accordance with the provisions of
this Rule, the original judgment or final order shall be vacated,
and the action shall stand for trial de novo; but the recorded
evidence taken upon the former trial, in so far as the same is
material and competent to establish the issues, shall be used
at the new trial without retaking the same.
Section 3. Action upon motion for new trial or
reconsideration. – The trial court may set aside the
judgment or final order and grant a new trial, upon such terms
as may be just, or may deny the motion. If the court finds that
excessive damages have been awarded or that the judgment
or final order is contrary to the evidence or law, it may amend
such judgment or final order accordingly.
Note: If a new trial is granted, the original judgment or final
order shall be vacated and the action shall stand for trial de
novo. In other words, you will be allowed to present your
evidence, file your answer, and contradict the evidence of the
plaintiff.
When the court grants the motion for reconsideration and
finds that excessive damages have been awarded or that the
judgment or final order is contrary to the evidence or law, it
may amend such judgment or final order accordingly.
➢ If the MR is based on the ground that the decision of the
court is contrary to law or not supported by evidence and
the court grants the MR- it means that the court has to
reverse its own decision. It will have to issue a new
decision in favor of the party who filed the MR.
In Section 3, how will the court resolve your motion
for new trial?
The court may either deny or may set aside the judgment or
final order and grant a new trial. Literally, if the judgment is
set aside, there will be a trial de novo, a Latin word for new
trial.
Bar question: If Cholo files a Motion for New Trial and
it is granted, will there always be a trial de novo?
It depends on the ground for the motion.
a. If the ground is FAME, there will be a trial de novo
because the proceeding will be set aside.
b. If the ground is NDE, there is no trial de novo. The
evidence admitted which is based on the same decision
will remain. The case will be opened only for the purpose
of admitting the new evidence.
If Cholo files a Motion for Reconsideration and it is
granted, will there be a trial de novo?
There is no trial de novo. The court will simply amend its
judgment. It is only a re-study of provision. The court will
study its decision and go over the evidence and find out
whether it made a mistake or not.
Effects if Motion is Denied
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Section 9. Remedy against order denying a motion for
new trial or reconsideration. – An order denying a motion
for new trial or reconsideration is not appealable, the remedy
being an appeal from the judgment or final order.
Note:
Movant must appeal the judgment within 15 days from receipt
of the order denying his motion and not just for the balance
of the period.
If your MNT was denied, what is your remedy? Can you
appeal the order of the court denying your motion?
No. You cannot appeal the order denying your MNT. But you
can appeal the judgment itself.
What you should do is to immediately file a Notice of Appeal.
The same is true for a denial of your MR. You appeal from the
judgment of the main case and not from the order denying
your Motion for Reconsideration.
If you believe that your denial of Motion for Reconsideration
constitutes grave abuse of discretion on the part of the judge,
you can question it by Petition for Certiorari under Rule 65- a
special civil action. Your basis is grave abuse of discretion
amounting to lack or excess of jurisdiction.
When can you perfect your appeal?
The rule before was that you only have the balance of the
period that was interrupted by the filing of MNT/MR. However,
the court changed this in the case of Neypes v CA.
Fresh period; Neypes rule
This rule provides that the movant has a fresh period of 15
days from receipt or notice of the order denying or dismissing
the motion for reconsideration within which to file a notice of
appeal. This new period assumes importance if either a motion
for reconsideration or a motion for new trial has been filed but
was denied or dismissed. This fresh period rule applies not
only to Rule 41 governing appeals from the RTC but also to
Rule 40 governing appeals from MTC to RTC, Rule 42 on
petitions for review from the RTC to the CA, Rule 43 on appeal
from quasi-judicial agencies to the CA, and Rule 45 governing
appeals by certiorari to the SC. Accordingly, this rule was
adopted to standardize the appeal periods provided in the
Rules to afford fair opportunity to review the case and, in the
process, minimize errors of judgment. Obviously, the new 15-
day period may be availed of only if either motion is filed;
otherwise, the decision becomes final and executory after the
lapse of the original appeal period provided in Rule 41.
It needs to be emphasized that the ruling shall not be applied
where no motion for new trial or motion for reconsideration
has been filed, in which case the 15-day period for appeal shall
run from notice of the judgment. for reconsideration or a
motion for new trial has been filed but was denied or
dismissed.
The doctrine of finality of judgment dictates that, at the risk
of occasional errors, judgments or orders must become final
at some point in time. In Neypes, the Supreme Court, in order
to standardize the appeal periods provided in the Rules and to
afford litigants fair opportunity to appeal their cases, declared
that an aggrieved party has a fresh period of 15 days counted
from receipt of the order dismissing a motion for a new trial
or motion for reconsideration, within which to file the notice
of appeal in the RTC.
Neypes Rule applicable only to judicial proceedings
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
The Neypes rule covers only judicial proceedings. Hence, the
rule does not apply to administrative appeals like appeals from
the decision of the HLURB to the Office of the President. Also,
the Neypes rule does not apply to appeals from the Local
Board of Assessment Appeals to the Central Board of
Assessment Appeals since the Appeal is not judicial but
administrative.
Resolution of Motion
Section 4. Resolution of motion. – A motion for new trial
or reconsideration shall be resolved within thirty (30) days
from the time it is submitted for resolution.
Note: If the motion is denied, the movant has a “fresh period”
of fifteen days from receipt of notice of the order denying or
dismissing the motion for reconsideration within which to file
a notice of appeal for the same reason and grounds as the
“fresh period” rule governing a denial of a motion for
reconsideration.
It is clear from Neypes that the ruling shall not be applied
where no motion for new trial or motion for reconsideration
has been filed in which case the 15-day period for appeal shall
run from notice of judgment.
Order of denial, not appealable
The fresh period rule does not refer to the period within which
to appeal from the order denying the motion for
reconsideration but to the period within which to appeal from
the judgment itself because an order denying a motion for
reconsideration or new trial is not appealable.
Remedy when motion is denied
The remedy from an order denying a motion for
reconsideration is not to appeal from the order of denial
because such order is not appealable. The remedy is to appeal
from the judgment or final order itself subject of the motion.
Second Motion for New Trial or Reconsideration
Section 5. Second motion for new trial. – A motion for
new trial shall include all grounds then available and those not
so included shall be deemed waived. A second motion for new
trial, based on a ground not existing nor available when the
first motion was made, may be filed within the time herein
provided excluding the time during which the first motion had
been pending.
No party shall be allowed a second motion for reconsideration
of a judgment or final order.
Note: “Single motion rule” simply means that a party shall not
be allowed to file a second motion for reconsideration of a
judgment or final order.
Judge Q: Only on the basis that the NDE is not available when
the first motion was filed because if it is available during the
time the first motion was field, it is deemed waived. But with
respect to MR, the section is quite clear. A second motion for
reconsideration is considered pro-forma.
Can you file a second motion for new trial and a second
motion for reconsideration?
Motion for New Trial- Yes, you can file a second motion for
new trial provided that it is based on another ground that was
not yet existing at the time you filed the first MNT.
Motion for Reconsideration- No, you are not allowed to file a
second MR. It is only in the Supreme Court where you can file
a second MR.
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Summary of Post-Judgment Remedies under Rule 37 negligence, the aggrieved party can no longer avail of the
MNT MR remedy of petition for relief from judgment.
Grounds (Sec. 1, 1. Fraud, 1. Damages
Rule 37) accident, awarded are The denial of a motion for reconsideration signifies that the
mistake or excessive grounds relied upon have been found, upon due deliberation,
excusable 2. That the to be without merit, as not being of sufficient weight to
negligence evidence is warrant a modification of the judgment or final order. It
2. Newly insufficient means not only that the grounds relied upon are lacking in
discovered to justify the merit but also that any other, not so raised, is deemed waived
evidence decision or and may no longer be set up in a subsequent motion or
final order application to overturn the judgment; and this is true,
3. That the whatever may be the title given to such motion or application,
decision or whether it be “second motion for reconsideration” or “motion
final order is for clarification” or “plea for due process” or “prayer for a
contrary to second look,” or “motion to defer, or set aside, entry of
law judgment.”
Second MNT/MR A 2nd MT may be A 2nd MR of a
(Sec. 5, Rule 37) allowed if based judgment or final Judge Q: Discussed Neypes v CA.
on a ground not order is not
existing or allowed. Outline of the process (after trial)
available when 1. Decision/judgment
the 1st MNT was Note: This 2. Motion for new trial/ reconsideration
made prohibition does 3. If denied, court makes an order denying your motion for
not apply to new trial or reconsideration
interlocutory 4. Appeal based on the decision/judgment and not based on
orders. the order denying your motion.
Effect if granted The original The court may
judgment or final amend the Gemina v Heirs of Espejo
order shall be judgment or final Lack of notice of hearing in a Motion for Reconsideration is
vacated and the order if the cured when the adverse party filed pleadings opposing said
action shall stand ground relied motion and had the opportunity to be heard in compliance
for trial de novo upon prevails with the requirements of due process.
but the recorded (Section 3, Rule
evidence shall be 37)
used in the new
trial without
retaking the same
(Sec 6, Rule 37)

Partial New Trial or Reconsideration

Section 7. Partial new trial or reconsideration. – If the
grounds for a motion under this Rule appear to the court to
affect the issues as to only a part, or less than all of the matter
in controversy, or only one, or less than all, of the parties to
it, the court may order a new trial or grant reconsideration as
to such issues if severable without interfering with the
judgment or final order upon the rest.

Can there be a partial new trial or reconsideration?

Yes. But only if the issue partially resolved can be severed
from the other cases.

Effect of Order for Partial New Trial

Section 8. Effect of order for partial new trial. – When
less than all of the issues are ordered retried, the court may
either enter a judgment or final order as to the rest, or stay
the enforcement of such judgment or final order until after the
new trial.

Remedy Against Order Denying a Motion for New Trial

or Reconsideration
Section 9. Remedy against order denying a motion for
new trial or reconsideration. – An order denying a motion
for new trial or reconsideration is not appealable, the remedy
being an appeal from the judgment or final order.

Note:
When the motion for new trial is denied on the ground of
fraud, accident, mistake of fact or law, or excusable
180
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
CIVPRO |
APPEALS
An appeal is the remedy available to a litigant seeking to
reverse or modify a judgment on the merits of a case. In less
technical terms, an appeal is used to correct errors of
judgments of a lower court or tribunal such as errors in the
application of the rules of evidence, in the appreciation of the
credibility of the witnesses or in the appreciation of the facts
of the case. It is not designed to corrects acts constituting
grave abuse of discretion amounting to lack of jurisdiction or
other errors of jurisdiction of the court. It is a basic procedural
rule that errors of judgment are correctible by appeal while
errors of jurisdiction are correctible by certiorari.
Judge Q: One of the important things a lawyer must have is
to be able to master the proper mode of appeal. This is
jurisdictional considering that the relief of appeal is a matter
of statutory right and is not considered a natural or inherent
right. So that is the nature of appeal and unlike other
remedies, where it is discretionary for the court to grant
whereas the right appeal properly invoked requires for the
court to exercise jurisdiction. So it stands to reason that the
party must be careful in choosing the mode of appeal under
the appropriate circumstances.
Rules
• Rule 40- Appeal from Municipal Courts to the Regional
Trial Courts
• Rule 41- Appeal from the Regional Trial Courts
• Rule 42- Petition for Review from the Regional Trial
Courts to the Court of Appeals
• Rule 43- Appeals from the Court of Tax Appeals and
Quasi-Judicial Agencies to the Court of Appeals
• Rule 44- Ordinary Appealed Cases
• Rule 45- Appeal by Certiorari to the Supreme Court
General Principles on Appeals
➢ An appeal is a proceeding undertaken to have a decision
reconsidered by bringing it to a higher court authority.
The right to appeal is neither a natural right nor is a
component of due process.
➢ The right to appeal is not part of due process but a mere
statutory privilege that has to be exercised only in the
manner and in accordance with the provisions of law.
➢ The general rule is that the remedy to obtain reversal or
modification of judgment on the merits is appeal. This is
true even if the error, or one of the errors, ascribed to the
court rendering the judgment is its lack of jurisdiction
over the subject matter, or the exercise of power in
excess thereof, or grave abuse of discretion in the
findings of fact or of law set out in the decision.
➢ An interlocutory order is not appealable until after the
rendition of the judgment on the merits.
o Exception: Doctrine of Procedural Void
➢ It is an oft-repeated doctrine in appeals that findings of
trial courts on the credibility of witnesses deserve a high
degree of respect. Having observed their deportment in
court, the trial judge is in a position to determine the issue
of credibility. For this reason, the findings of trial judges
will not be disturbed on appeal in the absence of any clear
showing that they have overlooked, misunderstood or
misapplied some facts or circumstances of weight and
substance that could have altered the judgment.
➢ Doctrinally-entrenched is that the right to appeal is a
statutory right and the one who seeks to avail that right
must comply with the statute or rules. The perfection of
appeal in the manner and within the period set by law is
not only mandatory but jurisdictional as well; hence,
failure to perfect the same renders the judgment final and
executory.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
➢ When there is no law providing for the remedy of appeal,
such as in small claims cases as provided under A.M. No.
08-8-7- SC, one cannot, therefore, decry that he is denied
due process.
Judge Q: As what I’ve said, a right to appeal is not a natural,
even a constitutional right. It is a statutory privilege-available
only if granted or as provided by statutes. It is a relief allowing
the party to question or assail a judgment or final order. Its
objective is to reverse an adverse decision or to modify in case
he doesn't fully agree with the ruling of the court so the
purpose could either be total reversal because it is an error in
judgment or there are some decisions which you would not
agree to make some modifications on the judgment.
It has become the doctrine that, such that if one fails to
observe the requirements even if you made an appeal and it
is not in accordance with the rules, technically you have not
perfected the appeal so what is the result? It will now become
final and executory. So you will not have any other revenue.
This is of course in line with the liberal construction rule. The
first statement I made, it is important for a lawyer worth his
salt, must be proficient in choosing the right mode of appeal
because it will prove to be fatal to his cause because the rules
are classified as technical in nature and in fact, if you fail to
comply with the requirements, the CA or SC will consider itself
as not having jurisdiction and that will be the basis of throwing
out your appeal but still it is subject to the interpretation of
the appellate court if a liberal construction will be warranted
but as a rule, in fact, practitioners are very keen in seeing to
it that all documentary requirements and proper mode are
followed. So you must also be careful in deciding to make an
appeal because an appeal only applies to judgment or final
orders and not to interlocutory orders. Interlocutory orders
that does not totally dispose of the case will not be appealable
until the finality of judgment on the merits
So as a rule, an interlocutory order, for example, a denial of
MTD does not totally dispose of the case because the case
may continue if there is a denial. But is there a way to question
it, when the case is terminated, then he may raise it or if the
issuance of the order is considered an act which results to a
grave abuse of discretion on the part of the judge that such
type of abuse would result to the court acting in excess of
jurisdiction, not through an appeal but a special civil action
through a petition for certiorari under rule 65 so if one would
file a notice to appeal, such notice to appeal will automatically
be filed as an erroneous mode because only final orders or
judgment are appealable.
Certain Rules on Appeal
a. No trial de novo anymore. The appellate courts must
decide the case on the basis of the record, except when
the proceedings were not duly recorded as when there
was absence of a qualified stenographer
b. There can be no new parties
c. There can be no change of theory
d. There can be no new matters
e. There can be amendments of pleadings to conform to the
evidence submitted before the trial court.
f. The liability of solidary defendant who did not appeal is
not affected by appeal of solidary debtor
g. Appeal by guarantor does not inure to the principal
h. The appellate court cannot dismiss the appealed case for
failure to prosecute because the case must be decided on
the basis of the record.
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Judgments or orders that are appealable
An appeal may be taken only from judgments or final orders
that completely disposes of the case, or of a particular matter
therein when declared by the Rules to be appealable.
Hence, an interlocutory order is not appealable until after the
finality of judgment on the merits. The purpose of the rule
that only those final orders or judgments that finally dispose
of a case are appealable is to avoid multiplicity of appeals. If
even interlocutory orders were to be made appealable, a party
would be encouraged to interpose numerous appeals even on
incidental questions. This practice would cause considerable
delays in the trial on the merits of a case aside from the
unnecessary expenses that would inevitably be incurred by
the parties.
It is also already well-settled that a party may not change his
theory of the case on appeal.
Judgments or orders that are not appealable
a. An order denying a petition for relief or any similar motion
seeking relief from judgment
b. An interlocutory order
c. An order disallowing or dismissing an appeal
d. An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of
fraud, mistake or duress, or any other ground vitiating
consent
e. An order of execution
• Judge Q: But as what we have learned, it can be
subject for petition for relief from judgment.
f. A judgment or final order for or against one or more of
several parties or in separate claims, counterclaims,
cross-claims, and third-party complaints, while the main
case is pending, unless the court allows an appeal
therefrom
• Judge Q: Because it does not completely dispose of
the case
g. An order dismissing an action without prejudice
• Judge Q: For instance, an order dismissing the
action or the case on the ground of improper venue
is not an appealable order because it is without
prejudice. What is the option? To file the case in the
proper venue that is not with prejudice but without
prejudice.
Review: What are those judgements with prejudice?
1. Res judicata
2. Claim has been paid, waived, or abandoned, or
extinguished
3. Claim is barred by the statute of limitations
4. Dismissal of the case for the repeated failure of the
plaintiff to appear in the pre-trial
5. Claim is unenforceable under the Statute of Frauds
Note: A question that was never raised in the courts below
cannot be allowed to be raised for the first time on appeal
without offending basic rules of fair play, justice and due
process. For an appellate court to consider a legal question, it
should have been raised in the court below. It would be unfair
to the adverse party who would have no opportunity to
present evidence in contra to the new theory, which it could
have done had it been aware of it at the time of the hearing
before the trial court. It is true that this rule admits of
exceptions as in cases of lack of jurisdiction, where the lower
court committed plain error, where there are jurisprudential
developments affecting the issues, or when the issues raised
present a matter of public policy.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
In the same vein, objections relating to non-compliance with
the verification and certification of non-forum shopping
requirements should not be raised for the first time on appeal.
GR: Only matters being raised on appeal may be considered
XPN:
a. Absolute lack of jurisdiction over the subject matter
b. When there is noncompliance with the requisites of a
valid judgment
i. Becomes apparent that the judgment issued is not a
valid one
c. If there is obvious error that the lower court committed
errors that affects the validity of the proceedings
i. Remember the rules on pre-trial. If no pre-trial, what
is the effect? Proceedings will be null and void, so even
if not raised on appeal, appellate court can still take
cognizance
d. If there is an error closely related to an assigned one or
one of those considered errors but somehow closely
related or dependent, it can be taken up on appeal
e. If there is plain and clerical error even if not raised
Note: Another exception to the rule that a party may not
change his or her theory on appeal is if in the interest of justice
and within the sound discretion of the appellate court the
factual bases thereof would not require presentation of any
further evidence by the adverse party in order to enable it to
properly meet the issue raised in the new theory.
Judge Q: What are the matters to be taken up on appeal?
Does it mean that the judgment of the lower court, the
appellate court will take up all of the issues by the court of
origin? The rule is only issues that are raised on appeal can
be taken up by the appellate court. What are the points that
the party raises as an error of the lower court? Meaning to say
that these are the portions of the judgment that the party
disagrees and that’s the one the party assigns an error.
That's why in a pleading of appeal, you must indicate the
assignment of errors so to save time, the appellate court only
has the authority to rule on this assignment of errors. Those
not being raised but form part of the main case in the lower
court. Appellate court will not have to take them up
altogether; only those raised in appeal. If the party elevating
the matter on appeal, l will introduce a theory other than the
one in the main case, can the appellate court rule on this
theory? That is not proper and not allowed because if you
change that theory, that would be violative of the other party's
right to due process so there should be no surprises. Only
those adopted during the case in the lower court should be
included in the matters to be taken up during the appeal so
no new theories are allowed. In one case, the court even said
that it would be unfair to the other party; which it could have
done before the appeal. That’s the reason why the appellant
is not allowed to introduce new theories. The rule is: no
question of issue will be taken up on appeal unless it has been
raised in the court of origin-points of law not taken up in the
lower court cannot be taken up by the appellate court so basic
reason of due process is the reason.
What is the role of the appellee?
Confined in refuting the assigned errors of the appellant. He
merely assumes a defensive position.
Harmless errors
There are errors committed by the trial court which do not
affect the substantial rights of these parties. These errors are
“harmless” and do not require the automatic reversal of the
judgment of the lower court. In other words, even if an
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evidence has been improperly admitted by the trial court, the
error will be disregarded on appeal if the impact of the
evidence on the case is slight and insignificant. For example,
if despite a timely objection, evidence of the previous
negligent act of the defendant was erroneously admitted, such
evidence will not affect an adverse judgment against said
defendant whose negligence in the case under consideration
was sufficiently proven through evidence independent of the
one erroneously admitted.
Remedy in case the judgment or final order is not
appealable
In those instances, where the judgment or final order is not
appealable, the aggrieved party may file the appropriate
special civil action under Rule 65 (Sec. 1 R 41). However, as
of December 27, 2007, an aggrieved party may no longer
assail an order denying a motion for new trial or a motion for
reconsideration by way of Rule 65 as per A.M. No. 07-7-12-
SC, such ground having been removed from the enumeration
in Sec. 1 of Rule 41. The proper remedy is to appeal from the
judgment (Sec. 9 R 37).
Appeals in criminal cases
“In criminal cases, it is axiomatic that where an accused
appeals the decision against him, he throws open the whole
case for review and it then becomes the duty of the SC to
correct any error as may be found in the appealed judgment,
whether it was made the subject of assignment of errors or
not.”
Payment of docket fees
The Court has consistently held that payment of docket fee
within the prescribed period is mandatory for the perfection
of an appeal. Without such payment, the appellate court does
not acquire jurisdiction over the subject matter of the action
and the decision sought to be appealed from becomes final
and executory.
Payment of docket fees and other legal fees within the
prescribed period is both mandatory and jurisdictional,
noncompliance without which is fatal to an appeal. The full
amount of the appellate court docket and other lawful fees
must be paid to the clerk of court which rendered the
judgment or final order appealed from. Without the payment
of docket fees, the appeal is not perfected and the appellate
court does not acquire jurisdiction to entertain the appeal,
thereby rendering the decision sought to be appealed final and
executory. Nonpayment of the appellate court docket and
other lawful fees within the reglementary period is a ground
for the dismissal of an appeal.
Note however that in the exercise of its impartial jurisdiction,
the Court allows a liberal construction of the rules on the
manner and periods for perfecting appeals in order to serve
the demands of substantial justice.
Record on appeal
An appeal is normally made by filing a notice of appeal with
the court which rendered the judgment or final order appealed
from (Sec. 2(a), Rule 41, Rules of Court). No record on appeal
shall be required except in special proceedings and other
cases of multiple or separate appeals where the law or the
Rules of Court so require.
In a case where multiple appeals are allowed, a party may
appeal only a particular incident in the case and not all of the
matters involved in the same case. The others which are not
made the subject of the appeal remain to be resolved by the
trial court. The record on appeal is required so the appellate
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
court may have a record of the proceedings to resolve a
separate and distinct issue raised in the appeal, and since the
original records remain with the trial court it still can resolve
the other issues of the case not made subject of the appeal.
A record on appeal is a reproduction of the case records, more
or less, containing, among other things, the judgment or final
order from which the appeal is taken and, in chronological
order, copies of only such pleadings, petitions, motions and all
interlocutory orders as are related to the appealed judgment
or final order for the proper understanding of the issue
involved, together with such data as will show that the appeal
was perfected on time, but excepting therefrom other
pleadings and motions that are not necessary in resolving the
issues on appeal need not be included the record on appeal,
like motion for postponement, etc.
Every record on appeal exceeding twenty pages must contain
a subject index. It is like a history book, as it shall state, in
chronological order, the important stages of the case.
Contents of Record on Appeal
1. A caption as would readily show who the party-disputants
are
2. The case number; and the nature of the case
3. Signed by counsel
Example:
Jurisprudence recognizes the existence of multiple appeals in
a complaint for expropriation because there are two stages in
every action for expropriation. The first stage is the
determination of the lawful right of the plaintiff to take the
property sought to be expropriated culminating in an order of
expropriation (Sec. 4 R 67). This order of expropriation may
be appealed by any party by filing a record on appeal (Tan vs.
Republic 523 SCRA 203).
The second stage is the determination by the court of the just
compensation for the property sought to be expropriated. A
second and separate appeal may be taken from this order
fixing the just compensation (Tan vs. Republic, supra).
Multiple appeals are allowed in special proceedings, in actions
for recovery of property with accounting, in the special actions
for eminent domain and foreclosure of mortgage. The
rationale behind allowing more than one appeal in the same
case is to enable the rest of the case to proceed in the event
that a separate and distinct issue is resolved by the court and
held to be final (Roman Catholic Archbishop of Manila vs. CA
GR 111324 July 5, 1996).
Perfection of the appeal
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
The notice of appeal does not require the approval of the
court. The function of the notice of appeal is merely to notify
the trial court that the appellant was availing of the right to
appeal, and not to seek the court’s permission that he be
allowed to pose an appeal.
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RULE 50. DISMISSAL OF APPEAL
Section 1. Grounds for dismissal of appeal. – An appeal
may be dismissed by the Court of Appeals, on its own motion
or on that of the appellee, on the following grounds:
(a) Failure of the record on appeal to show on its face that the
appeal was taken within the period fixed by these Rules;
(b) Failure to file the notice of appeal or the record on appeal
within the period prescribed by these Rules;
(c) Failure of the appellant to pay the docket and other lawful
fees as provided in section 5 of Rule 40 and 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. (1a; En Banc Resolution, February 17, 1998.)
Note: Please take note however that these grounds for the
dismissal of the appeal are not all mandatory. Most of them
are directory. It is not a ministerial job of the CA to dismiss
the appeal if these grounds exist. The only one that is
mandatory is the failure to file a notice of appeal on time or
failure to file the records on appeal on time. The appellate
court is very strict in your compliance of the reglementary
period to perfect your appeal. The other grounds can be
excused, like unauthorized alterations, omissions, or additions
in the approved record on appeal.
If it is an appeal by records on appeal, you file that with the
RTC because it is subject to the approval of the RTC. Once the
RTC approves the records on appeal, the latter will be
forwarded to the CA for you. If the CA discovers that there are
unauthorized alterations in the records on appeal after it has
been approved by the RTC, that would be a sign of cheating
on the part of the appellant or petitioner. That can be a ground
for dismissal of your appeal, but that is not mandatory. The
court can excuse if you can give explanation. If it is an honest
alteration, the court may not dismiss your appeal.
Another one is the specific assignment of errors in the
appellant’s brief or a failure of the appellant to take the
necessary steps for the correction or completion of the record
within time. IOW, not all of these grounds are mandatory –
most of them are directory.
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
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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.
1. Appeal from RTC to CA on pure question of law
2. Appeal by notice of appeal instead of petition for
review under Rule 42 from RTC to CA.
Note: If the appeal is considered an improper appeal, the
appellate court will have to dismiss it.
Example: If you file an Ordinary Appeal from the decision of
the RTC, you will appeal that to the CA. However, if you only
raise pure questions of law, you cannot appeal to the Court of
Appeals for pure questions of law. You go directly to the
Supreme Court by way of a petition for certiorari under Rule
45.
If it is a Petition for Review under Rule 42 or Rule 43, you can
raise pure questions of law. In an Ordinary Appeal governed
by Rule 41, you have to go to the Supreme Court. If you
appeal it to the CA, the CA will dismiss it. Or, you appeal the
case to the SC but it is not on pure questions of law. You
mixed it with questions of fact. The SC will surely dismiss it.
Unlike before, in the 1964 Rules – the appellate court will not
dismiss it. The appellate court to whom you filed that wrong
mode of appeal will just refer it to the proper court. Now, the
rule is different. If it is an improper appeal, the court will
dismiss it.
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.
Note: An appeal erroneously taken to the Court of Appeals
shall not be transferred to the appropriate court but shall be
dismissed outright.
Can you withdraw the appeal that you have already
filed?
(a) Matter of Right- before appellee’s brief is filed
(b) Discretionary- after filing of appellee’s brief
RULE 52. MOTION FOR RECONSIDERATION
Section 1. Period for filing. – A party may file a motion for
reconsideration of a judgment or final resolution within fifteen
(15) days from notice thereof, with proof of service on the
adverse party.
Section 2. Second motion for reconsideration. – No
second motion for reconsideration of a judgment or final
resolution by the same party shall be entertained.
Section 3. Resolution of motion. – In the Court of
Appeals, a motion for reconsideration shall be resolved within
ninety (90) days from the date when the court declares it
submitted for resolution.
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Section 4. Stay of execution. – The pendency of a motion
for reconsideration filed on time and by the proper party shall
stay the execution of the judgment or final resolution sought
to be reconsidered unless the court, for good reasons, shall
otherwise direct.

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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RULE 40. APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS
Judge Q: This is the procedure from MTC to question the
judgment or final order before the RTC so RTC has appellate
jurisdiction.
What are the first level courts?
MeTC, MTCC, MCTC or MTC
Where to Appeal
Section 1. Where to appeal. – An appeal from a judgment
or final order of a Municipal Trial Court may be taken to the
Regional Trial Court exercising jurisdiction over the area to
which the former pertains. The title of the case shall remain
as it was in the court of origin, but the party appealing the
case shall be further referred to as the appellant and the
adverse party as the appellee.
Note: Decisions of the MTC are appealable to the RTC which
has jurisdiction over the area where the MTC sits. As you all
know, a regional trial court has specific jurisdiction. For
example, the RTC in Cebu City has territorial jurisdiction only
within Cebu City (before it used to cover Talisay, Minglanilla,
Naga, up to Carcar).
Examples:
1. If the decision was rendered by the municipal trial court
in Bantayan, the appeal will be taken to the RTC in Bogo.
It will be raffled in the four branches of RTC there.
2. If the decision was rendered in a municipal trial court of
Cebu City, the appeal will be taken to the Regional Trial
Court of Cebu City.
When to Appeal
Section 2. When to appeal. – An appeal may be taken
within fifteen (15) days after notice to the appellant of the
judgment or final order appealed from. Where a record on
appeal is required, the appellant shall file a notice of appeal
and a record on appeal within thirty (30) days after notice of
the judgment or final order.
The period of appeal shall be interrupted by a timely motion
for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be
allowed.
Note:
1. The period remains to be 15 days for ordinary appeal.
2. 30 days if records on appeal is required.
3. Period is interrupted by motion for reconsideration or new
trial.
In relation to certain jurisprudence, the 15-day period cannot
be extended. It cannot be extended but it can be interrupted
by a timely motion for new trial or reconsideration. And no
motion for extension of time to file a motion for new trial or
reconsideration shall be allowed.
Note 2: Judge Q discussed the ruling in Neypes. Please refer
to Neypes ruling found above. So in Neypes ruling, applicable
to all types of appeal whether notice of appeal or record on
appeal.
How about the 30-day period? Is the 30-day period
extendible?
Yes. It is extendible for record on appeal, on the condition that
the Motion to Extend must be filed within the original 30 days
and provided further that the movant has no right to expect
that his motion will be granted.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
So the 15-day period can never be extended but the 30-day
period is extendible based on jurisprudence. This is because a
notice of appeal is normally a one-paragraph document. You
can do that in just 5 minutes. But a record on appeal is
makapal. That is why it is 30 days. Sometimes kulangin pa
yung 30-day period. So you can extend it provided you file the
motion for extension during the original 30-day period.
How to Appeal
Section 3. How to appeal. – The appeal is taken by filing a
notice of appeal with the court that rendered the judgment or
final order appealed from. The notice of appeal shall indicate
the parties to the appeal, the judgment or final order or part
thereof appealed from, and state the material dates showing
the timeliness of the appeal.
A record on appeal shall be required only in special
proceedings and in other cases of multiple or separate
appeals.
The form and contents of the record on appeal shall be as
provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal where
required, shall be served on the adverse party.
How do you appeal?
Under Section 3, you file a Notice of Appeal to the court that
rendered judgment, so MTC. And it “shall indicate the parties
to the appeal, the judgment or final order or part thereof
appealed from, and state the material dates showing the
timeliness of the appeal.”
Notice of Appeal
The notice of appeal applies to ordinary civil actions. It
consists of one paragraph. The caption will remain the same
as the original caption.
Ordinary Appeals that Require Records on Appeal
1. In special proceedings
2. Where the court renders several or separate judgments
3. In actions for recovery of property with accounting
4. In actions for partition with accounting
5. In the special civil action for eminent domain
6. Foreclosure of mortgage
Material Data Rule
These are the 2 important things you have to state in the
notice of appeal:
1. The date that you received the adverse decision
2. The date you filed the appeal
In Special Proceedings
You have to file a notice of appeal and a records on appeal
within 30 days.
It is a tedious process to prepare a record on appeal. In special
proceedings, it is clear that the MTC now has jurisdiction to
entertain SPs such as probate of the will and settlement of the
estate of a deceased person.
Multiple Appeals
Refers to appeal of a decision that is decided by the court in
separate stages. For example, in Expropriation cases, the
court will decide if your property can be subjected to
expropriation. That order of the court itself is already
appealable but it does not mean that the entire case has
already been decided because the court is still to decide how
much is the just compensation.
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Judge Q: IOW, you must prove that you served notice of
appeal or record on appeal on adverse party. If judgment is
rendered by the MTC, notice of appeal must be filed with said
court, it should not be filed with the RTC where your case will
be transferred on appeal. As what I've said, notice of appeal
must be filed in the court which rendered the judgment or
final order.
Section 3 also says that the parties of the appeal must be
indicated and part of the order appealed from; doesn't have
to cite the final judgment, only the dispositive portion. You
must also state the material dates showing the timeliness of
the appeal, that the judgment was rendered on said date and
the notice was received on said date because the appellate
court will be able to determine whether notice or record on
appeal was filed on time.
Material dates: those that will record the timeliness of the
appeal. Why? Go back to grounds on dismissal. If appellate
court will evaluate and notice that there is non-compliance
with the things that must be in the notice of appeal, then it is
a ground for dismissal.
Section 4. Perfection of appeal; effect thereof. – The
perfection of the appeal and the effect thereof shall be
governed by the provisions of section 9, Rule 41.
When is the appeal deemed perfected?
Under Section 9, Rule 41. From the moment the appeal is
deemed perfected, the MTC loses jurisdiction over the case.
And by fiction of law, jurisdiction is automatically transferred
to the RTC.
Note: The notice of appeal does not require the approval of
the court. The function of the notice of appeal is merely to
notify the trial court that the appellant was availing of the right
to appeal, and not to seek the court’s permission that he be
allowed to pose an appeal. The trial court’s only duty with
respect to a timely notice of appeal is to transmit the original
record of the case to the appellate court.
Appellate Court Docket Fee
Section 5. Appellate court docket and other lawful
fees. – Within the period for taking an appeal, the appellant
shall pay to the clerk of the court which rendered the
judgment or final order appealed from the full amount of the
appellate court docket and other lawful fees. Proof of payment
thereof shall be transmitted to the appellate court together
with the original record or the record on appeal, as the case
may be.
Judge Q: Another requirement is payment of docket fee. How
to prove? Proof of payment attaching the receipt. If you fail
to attach, it means you have not paid, so if in case, di ma
attach, case will be dismissed.
Note: You have to pay it in in the court of origin. Once you file
your notice of appeal, you also pay your docket fee. The
receipt of payment of the docket fee will be attached to the
records of the case that will be forwarded to the RTC.
Duty of the Clerk of Court
Section 6. Duty of the clerk of court. – Within fifteen (15)
days from the perfection of the appeal, the clerk of court or
the branch clerk of court of the lower court shall transmit the
original record or the record on appeal, together with the
transcripts and exhibits, which he shall certify as complete, to
the proper Regional Trial Court. A copy of his letter of
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
transmittal of the records to the appellate court shall be
furnished the parties.
Note: The Clerk of Court is given 15 days to complete the
records of the case, gather all the evidence and the pleadings,
compile them, and forward all the records of the case to the
RTC. Upon receipt of the records, the RTC Clerk of Court will
immediately inform the parties that the records of the case
are already in the RTC. The appellant is then given 15 days to
file his Memorandum. Upon receipt of the Memorandum, the
appellee is also given the same period of 15 days to file his/her
Memorandum.
Judge Q: Upon the perfection of appeal, COC is under
obligation to transmit the records in case of ordinary civil
actions or a portion in case of record on appeal together with
the transcripts. ALWAYS REMEMBER THAT ALL CASE
RECORDS MUST BE TRANSMITTED INCLUDING THE
TRANSCRIPTS. Why important? It is for the appellate court to
have a full assessment or evaluation of the propriety and the
merits of the appeal because on appeal, there is no hearing
to be conducted unless there is a hearing for clarificatory
purpose but as a rule, it is a battle of pleadings, so all of these
evidence is already reflected in the lower court for the
appellate court to properly evaluate.
REMEMBER: THE NOTICE OF APPEAL DOES NOT REQUIRE
THE APPROVAL OF THE COURT. FUNCTION IS TO NOTIFY
THE TRIAL COURT THAT HE WILL AVAIL OF THE APPEAL.
ONLY DUTY IS TO TRANSMIT THE RECORDS. IT IS THE
APPELLATE COURT THEN WHO WILL ASSESS WHETHER AN
APPEAL HAS BEEN PERFECTED SO ONCE RECORD HAS BEEN
TRANSMITTED, THE COC WILL RECEIVE THE RECORDS AND
SHALL NOTIFY THE PARTIES OF SUCH FACT
Procedure in the Regional Trial Court
Section 7. Procedure in the Regional Trial Court. –
(a) Upon receipt of the complete record or the record on
appeal, the clerk of court of the Regional Trial Court shall
notify the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be the
duty of the appellant to submit a memorandum which shall
briefly discuss the errors imputed to the lower court, a copy
of which shall be furnished by him to the adverse party. Within
fifteen (15) days from receipt of the appellant’s memorandum,
the appellee may file his memorandum. Failure of the
appellant to file a memorandum shall be a ground for dismissal
of the appeal.
(c) Upon the filing of the memorandum of the appellee or the
expiration of the period to do so, the case shall be considered
submitted for decision. The Regional Trial Court shall decide
the case on the basis of the entire record of the proceedings
had in the court of origin and such memoranda as are filed.
Judge Q: Basis of the court in rendering its decision on appeal
is the case record and memorandum of the appellant and the
appellee. Now if appellee fails to file his memorandum, he
loses opportunity to refute the contentions of the appellant
but does it mean that he will lose? No, because if the
appellant's contention has no merit, then he may still win.
IOW, optional on the part of the appellee whether or not to
file his memorandum
Effect if the appellant fails to file Appellant’s Memorandum
The appeal will be dismissed. In Section 7(b), the submission
of the Appellant’s Memorandum is a compulsory rule and
noncompliance therein authorizes the dismissal of the appeal.
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When is the case on appeal deemed submitted for
decision?
It is deemed submitted upon receipt of the appellee’s
memorandum or the lapse of time for the appellee to file such
memorandum.
Unlike the appellant’s memorandum, the appellee’s
memorandum is optional. The appellee is given 15 days from
the receipt of the appellant’s memorandum to file his
memorandum. If the appellee does not file, the RTC will
consider the case as submitted for decision.
Suppose the appellant has filed his memorandum and
it is the appellee who failed to file his memorandum.
What is the effect of such failure?
Under paragraph [c], the case shall be submitted for decision
without appellee’s memorandum. And it does not necessarily
mean that the appellee will lose the case by not filing his
memorandum because for all you know the decision of the
lower court is very clear, whether he files a memorandum or
not, he will still win.
Appeal from Orders Dismissing Case without Trial;
Lack of Jurisdiction
Section 8. Appeal from orders dismissing case without
trial; lack of jurisdiction. – If an appeal is taken from an
order of the lower court dismissing the case without a trial on
the merits, the Regional Trial Court may affirm or reverse it,
as the case may be. In case of affirmance and the ground of
dismissal is lack of jurisdiction over the subject matter, the
Regional Trial Court, if it has jurisdiction thereover, shall try
the case on the merits as if the case was originally filed with
it. In case of reversal, the case shall be remanded for further
proceedings.
If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court
on appeal shall not dismiss the case if it has original
jurisdiction thereof, but shall decide the case in accordance
with the preceding section, without prejudice to the admission
of amended pleadings and additional evidence in the interest
of justice.
Judge Q: I can relate to this because there was an ejectment
case appealed to my court so from MTC to RTC. What is the
action of the RTC of an appeal dismissing the case for lack of
jurisdiction? Example, unlawful detainer case. In UD, it is
jurisdictional and-based on the rules, he has a period of one
year from time to demand, if he fails to allege it in his
complaint. Now if the UD case was filed out of time, then court
has no jurisdiction to entertain this ejectment case so if he
dismisses this UD, it is a final judgment due to lack of
jurisdiction because it disposes of the case and if the
aggrieved party appeals this from MTC to RTC and if RTC
affirms the decision of the lower court and yet, the case filed
by the party is an action to recover possession.
That’s the objective of the ejectment case, it is not an UD case
but a case which can be classified as a plenary action or accion
publiciana which should be taken cognizance by the RTC.
What happens if the RTC where the case is appealed has
jurisdiction for the accion publiciana because there is an action
to recover possession, so this is a very unique ruling because
section 8 of rule 40 says, *reads section 8* IOW, he will not
entirely throw out the case. The rule says if the court has
jurisdiction over the subject matter, his action shall not be
limited to dismissing, instead it must try the case as if the
action was originally filed with the RTC.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
So this one is a very specific rule which requires the appellate
court to take cognizance of the case as if it was originally filed
before it. So this actually happened in my sala so this is where
I conducted my research and true enough. So not limited to
affirmation because it shall be treated as originally filed in the
RTC and I believe that this applies in all cases, not only UD
cases.
So what if lower court did not dismiss but on appeal, it was
raised and the RTC sustains the assignment on error, meaning
lower court did not have jurisdiction over the subject matter
and yet it conducted a hearing. Does this mean that the
proceedings is nullified? No, because the court is not confined
to the ruling that there is no jurisdiction but it considers it
originally filed in RTC so it will adopt proceedings and base
the rulings on the evidence produced.
Section 9. Applicability of Rule 41. – The other provisions
of Rule 41 shall apply to appeals provided for herein insofar
as they are not inconsistent with or may serve to supplement
the provisions of this Rule.
Note: Rule 41 provisions may also be used in appeals from
MTC to RTC. It is more comprehensive. It refers to appeal
from RTC to CA on cases decided by the RTC pursuant to its
original jurisdiction. This is also applicable to Rule 40 insofar
as they are not inconsistent.
Rule when the MTC dismisses the case without conducting a
trial
Two Scenarios:
1. If an appeal is taken from an order of the lower court
dismissing the case without a trial on the merits
a. The RTC may affirm or reverse it, as the case may
be
b. In case of affirmance and the ground of dismissal is
lack of jurisdiction over the subject matter, the RTC,
if it has jurisdiction thereover, shall try the case on
the merits as if the case was originally filed with it.
c. In case of reversal, the case shall be remanded for
further proceedings.
2. If the case was tried on the merits by the lower court
without jurisdiction over the subject matter, the Regional
Trial Court on appeal shall not dismiss the case if it has
original jurisdiction thereof, but shall decide the case in
accordance with the preceding section, without prejudice
to the admission of amended pleadings and additional
evidence in the interest of justice.
If the MTC feels that it has no jurisdiction to try the case and
dismisses it, the plaintiff will naturally appeal it to the RTC. If
the RTC finds out that the MTC is correct, it will assume
jurisdiction and will be the one to decide the case. However,
if the MTC erred in dismissing the case, the RTC will remand
the case back to the RTC. This is to save the appellant from
paying another docket fee.
It is possible that the MTC wrongly assumes jurisdiction. So,
when an appeal is made on the decision of the MTC, the RTC
may assume jurisdiction. But since the MTC has already
conducted a trial, the parties will no longer have to conduct a
trial. Instead, the RTC may require them to add additional
pleadings and evidence to support their respective claims.
Problem: Tomas filed a case against Ka Noli to collect a loan
of P50,000 before the MTC. But upon motion to dismiss
alleging that MTC has no jurisdiction, the court dismissed the
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complaint without trial. That is disposing of the case without
trial. Now, RTC said, “MTC has jurisdiction.”

In that case, what will the RTC do?

The RTC will order the MTC to conduct trial.

Problem: Suppose the complaint filed by Tomas against Ka

Noli is for P500,000 before the MTC. It is clear that the MTC
has no jurisdiction. Ka Noli moved to dismiss the case and it
was dismissed. But Tomas appealed to the RTC believing that
the dismissal was wrong. Of course the order of the MTC is
correct. It should have been filed with the RTC.

What will happen now to the case?

The RTC will not dismiss the case but instead assumes
jurisdiction. The RTC which has jurisdiction, shall try the case
on the merits as if the case was originally filed in the RTC.

The second paragraph has slight modification:

Problem: Tomas files a case against Ka Noli for P500,000

before the MTC. Ka Noli filed a motion to dismiss on the
ground of lack of jurisdiction. But the motion to dismiss of Ka
Noli was denied and the court tried the case. So, the trial is
void. The judgment rendered is also void. So Ka Noli appealed.

What will happen on appeal from the decision of the

MTC which tried a case even though it has no
jurisdiction over it?
Since the decision (on the merits) was appealed to the RTC,
the RTC will assume jurisdiction over the case. The RTC will
convert the appellate jurisdiction into an original jurisdiction
instead of dismissing an appeal. It will treat it as if it has been
filed for the first time in the RTC and not as an appealed case.
The purpose here is to avoid double payment of docket fees.

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RULE 41. APPEAL FROM THE REGIONAL TRIAL What is the test for determining whether a judgment
COURTS or order is final or interlocutory?
Majority of the important rules are found here in Rule 41. The test for the determination of whether a judgment or order
is final or interlocutory is this: Does it leave something to be
Judge Q: There are 3 modes of appeal from the decision of done in the trial court with respect to the merits of the case?
the RTC. So if the losing party seeks reversal, he can avail of If it does, it is interlocutory, hence, you cannot appeal yet; if
these different modes: it does not, it is final and therefore you can appeal.
1. Ordinary appeal under Rule 41
2. Petition for review under Rule 42 Remedy
3. Petition for review by certiorari to the SC which is covered Since you cannot appeal the orders mentioned above, the
by Rule 45 remedy is to file certiorari under Rule 65.

This applies to appeals of judgment of RTC in the exercise of Interlocutory Order Remedy
its original jurisdiction. This is called an ordinary appeal under Order denying the Proceed with trial and then
Rule 41. For example, action in judgment for specific affirmative defenses appeal from the judgment in
performance and if appealed, will be under Rule 41 and you pleaded in the answer the case and assign, as one
will have to follow procedure in making an appeal. of the errors on appeal, the
denial of the affirmative
Subject of Appeal defense
Section 1. Subject of appeal. – An appeal may be taken Order of the court Proceed with trial and then
from a judgment or final order that completely disposes of the submitting the case for appeal from the judgment in
case, or of a particular matter therein when declared by these judgment on the pleadings the case and assign, as one
Rules to be appealable. No appeal may be taken from: or summary judgment of the errors on appeal,
(a) An order denying a petition for relief or any similar motion such order submitting the
seeking relief from judgement; case for judgment on the
(b) An interlocutory order; pleading or summary
(c) An order disallowing or dismissing an appeal; judgment
(d) An order denying a motion to set aside a judgment by Order denying the demurrer Proceed with trial and then
consent, confession or compromise on the ground of fraud, to evidence appeal from the judgment in
mistake or duress, or any other ground vitiating consent; the case and assign, as one
(e) An order of execution; of the errors on appeal, the
(f) A judgment or final order for or against one or more of denial of the demurrer to
several parties or in separate claims, counterclaims, cross- evidence
claims and third-party complaints, while the main case is Order of the court An appeal from the
pending, unless the court allows an appeal therefrom; and approving or denying a judgment in the case and
(g) An order dismissing an action without prejudice. motion for judgment on the assign, as one of the errors
pleadings on appeal, the
In any of the foregoing circumstances, the aggrieved party approval/denial of the
may file an appropriate special civil action as provided in Rule motion for judgment on the
65. (As amended by A.M. No. 07-7-12-SC, December 1, 2007.) pleadings
Order of the court An appeal from the
Note: An appeal may be taken from a judgment or final order approving or denying a judgment in the case and
that completely disposes of the case. If that order does not motion for summary assign, as one of the errors
dispose of the case with finality, it is called an interlocutory judgment on appeal, the
order which is not appealable. approval/denial of the
motion for summary
If appeal is available, certiorari under Rule 65 cannot be judgment
available.
What are the cases where dismissal may be without
Final Order Interlocutory Order prejudice?
One that finally disposes of One that determines 1. First dismissal of the complaint at the instance of the
a case, leaving nothing incidental matters that does plaintiff, unless the court directs otherwise
more to be done by the not touch on the merits of 2. Dismissal of the action for failure to prosecute, or failure
Court in respect thereto. the case or put an end to to appear at trial, or to comply with the rules or order of
the proceedings the court under Section 3, Rule 17 of the Amended Rules,
Subject to appeal Proper remedy to question where the order of dismissal expressly states that the
an improvident interlocutory dismissal does not operate as an adjudication on the
order is a petition for merits
certiorari under Rule 65 3. Non-compliance with the requirement anent certification
Must express clearly and Not considered decisions or against forum shopping, unless the order of dismissal
distinctly the facts and the judgments within the states that such dismissal is with prejudice
law on which it is based constitutional definition 4. Dismissal of the case based on the affirmative defenses
that:
Why are interlocutory orders unappealable? a) Venue is improperly laid
To forestall useless appeals and avoid undue inconvenience to b) Plaintiff has no legal capacity to sure
appealing party by having to assail orders as they are c) States no cause of action
promulgated by the court, when all such orders may be d) A condition precedent for filing a claim has not been
contested in a single appeal. complied with

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5. Dismissal of the case for non-payment of the correct
docket fees
6. Dismissal of the case because the complaint is pro-forma
Modes of Appeal
Section 2. Modes of appeal. –
(a) Ordinary appeal. – The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing a notice of appeal
with the court which rendered the judgment or final order
appealed from and serving a copy thereof upon the adverse
party. No record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals
where the law or these Rules so require. In such cases, the
record on appeal shall be filed and served in like manner.
(b) Petition for review. – The appeal to the Court of Appeals
in cases decided by the Regional Trial Court in the exercise of
its appellate jurisdiction shall be by petition for review in
accordance with Rule 42.
(c) Appeal by certiorari. – In all cases where only questions of
law are raised or involved, the appeal shall be to the Supreme
Court by petition for review on certiorari in accordance with
Rule 45.
Modes of Appeal
1. Ordinary Appeal- Refers to an appeal from the decision of
the RTC in the exercise of its original jurisdiction. You can
appeal it by a mere (1) notice of appeal when it is an
ordinary civil action; or (2) an appeal by notice of appeal
plus records on appeal if it involves special proceedings
or multiple appeals.
2. Petition for review under Rule 42- This is a mode of
appeal from the decision of the RTC done in the exercise
of its appellate jurisdiction. The case originated in the
Municipal Trial Court and it was appealed to the Regional
Trial Court.
3. Appeal by certiorari under Rule 45- This is different from
Rule 65. Here, this is an appeal from the decision of the
RTC directly taken to the Supreme Court. The basis of the
appeal is pure question of law.
Ordinary Appeal v Petition for Review
Ordinary Appeal Petition for Review
The case was decided by The case was decided by
the RTC pursuant to its the RTC pursuant to its
original jurisdiction. The appellate jurisdiction.
case was originally filed in
the RTC.
Example: You filed an action for recovery of money amounting
to P1 million. Obviously the jurisdiction is in the RTC. Now,
you lost and you want to go to the CA. What is your mode of
appeal? Ordinary Appeal because the case was decided by the
RTC pursuant to its original jurisdiction.
Period of Ordinary Appeal
Section 3. Period of ordinary appeal; appeal in habeas
corpus cases. – The appeal shall be taken within fifteen (15)
days from notice of the judgment or final order appealed from.
Where a record on appeal is required, the appellants shall file
a notice of appeal and a record on appeal within thirty (30)
days from notice of the judgment or final order. However, on
appeal in habeas corpus cases shall be taken within forty-eight
(48) hours from notice of the judgment or final order appealed
from. (A.M. No. 01-1-03-SC, June 19, 2001.)
The period of appeal shall be interrupted by a timely motion
for new trial or reconsideration. No motion for extension of
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
time to file a motion for new trial or reconsideration shall be
allowed.
Judge Q: Why is there a difference of the reglementary
period? Because in notice of appeal, all you have to do is
submit a notice to court on questions of law and fact; cite
dispositive portion and material dates. This is quite different
on record on appeal because you are already required to
prepare the grounds upon which you rely upon in making the
appeal. And taking into account the Neypes rule, because you
have two options: whether to file an appeal right away or to
file MR or MNT as it is applicable but take note that if it is an
interlocutory order, as what I've said, it only covers-you
cannot appeal an interlocutory order under this Mode-You can
wait until the case will be completely disposed of and then cite
it as one of the assignment of errors or you can question right
away under Rule 65 citing grave abuse of discretion but in this
case, you have to file MR because under rule 65, it is
jurisdictional.
MR is jurisdictional before you can elevate the order under
Rule 65 but in ordinary appeal, party may or may not file for
MR or MNT. He may proceed right away with notice of appeal
but if he chooses to file MR, the court will observe the Neypes
rule.
Period of Appeal
1. Ordinary Appeal- 15 or 30 days
2. Habeas corpus- 48 hours
Interruption of period to appeal
Interruption of period to appeal by motion for new trial or
motion for reconsideration. No motion for extension of time to
file motion for new trial or reconsideration is allowed.
Example: You receive a judgment on January 31. You filed a
motion for reconsideration on February 10. So, interrupted
and then on February 20, you receive the order denying the
motion for reconsideration. When is the last day to appeal?
“The period to appeal is suspended if a motion for
reconsideration or one for a new trial is filed, which, if denied,
continues to run upon receipt of the order denying the same
as if no interruption has occurred. The time during which a
motion for reconsideration or one for new trial has been
pending shall be counted from the date the motion is duly filed
to the date when the movant is duly notified of the denial
thereof.”
“The period during which the motion is pending with the trial
court includes the day the same is filed because the motion
shall have been already placed under the court's consideration
during the remaining hours of the day. The very date the
motion for reconsideration has been filed should be excluded
from the appeal period.”
The fresh period rule shall apply to:
1. Rule 40 governing appeals from the MTCs to the RTCs
2. Rule 41 governing appeals from the RTCs to CA
3. Rule 42 on petitions for review from the RTCs to the CA
4. Rule 43 on appeals from quasi-judicial agencies to the CA
5. Rule 45 governing appeals by certiorari to the SC
A Motion for Reconsideration of an Interlocutory Order Is not
Subject to the 15-day Rule
If the order is interlocutory, you can file a motion for
reconsideration for it even beyond the 15-day rule because it
is not the one governed by Rule 37 when it speaks of a Motion
for Reconsideration.
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Docket Fee and Other Lawful Fees
Section 4. Appellate court docket and other lawful
fees. – Within the period for taking an appeal, the appellant
shall pay to the clerk of the court which rendered the
judgment or final order appealed from, the full amount of the
appellate court docket and other lawful fees. Proof of payment
of said fees shall be transmitted to the appellate court
together with the original record or the record on appeal.
Note: Assuming that the Clerk of Court accepts your notice of
appeal despite not having paid the docket fee, you still have
to pay it provided it is still within the reglementary period to
file the docket fee. If beyond the reglementary period, it is
now the court’s discretion whether to accept it or not.
What provision of the Rules authorizes such dismissal?
Is there any direct provision of the Rules of Court
which authorizes the dismissal of the appeal by non-
payment of the appeal docket fee?
Yes, under Rule 50 Section 1 (c).
Notice of Appeal
Section 5. Notice of appeal. – The notice of appeal shall
indicate the parties to the appeal, specify the judgment or final
order or part thereof appealed from, specify the court to which
the appeal is being taken, and state the material dates
showing the timeliness of the appeal.
Note: The appeal of the decision from the RTC to the CA could
be done either through Notice of Appeal or Record of Appeal.
Notice of Appeal
This is for ordinary civil actions. All you have to do is to file a
notice of appeal that consists only of one paragraph where
you state the date when you received the adverse decision
and you are not contented with the decision. Hence, appeal
to the higher court.
Material Data Rule
There are only two important dates to state in the Notice of
Appeal under the Material Data Rule:
1. The date when the decision was received
2. The date when notice of appeal was filed
Contents
1. Parties to the appeal
2. Judgment or final order or part thereof appealed from
3. Court to which the appeal is being taken
4. Material dates showing the timeliness of the appeal
Record on Appeal: Contents
Section 6. Record on appeal; form and contents
thereof. – The full names of all the parties to the proceedings
shall be stated in the caption of the record on appeal and it
shall include the judgment or final order from which the appeal
is taken and, in chronological order, copies of only such
pleadings, petitions, motions and all interlocutory orders as
are related to the appealed judgment or final order for the
proper understanding of the issue involved, together with
such data as will show that the appeal was perfected on time.
If an issue of fact is to be raised on appeal, the record on
appeal shall include by reference all the evidence, testimonial
and documentary, taken upon the issue involved. The
reference shall specify the documentary evidence by the
exhibit numbers or letters by which it was identified when
admitted or offered at the hearing, and the testimonial
evidence by the names of the corresponding witnesses. If the
whole testimonial and documentary evidence in the case is to
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
be included, a statement to that effect will be sufficient
without mentioning the names of the witnesses or the
numbers or letters of exhibits. Every record on appeal
exceeding twenty (20) pages must contain a subject index.
Contents of the record on appeal
1. Full names of all the parties to the proceedings shall be
stated in the caption of the record on appeal
2. The judgment or final order from which the appeal is
taken
3. In chronological order, copies of only such pleadings,
petitions, motions and all interlocutory orders as are
related to the appealed judgment or final order for the
proper understanding of the issue involved
4. Together with such data as will show that the appeal was
perfected on time
Note: The requirement that the record on appeal must show
on its face that the appeal was perfected on time is mandatory
and jurisdictional that if not complied with, the appeal must
be dismissed.
Exception: If the trial court issued an order to the effect that
the appeal was seasonably perfected with the filing of the
notice of appeal and the record on appeal within the
reglementary period.
Record on Appeal
A record on appeal is simply a reproduction of all the pleadings
filed by the parties, all the motions filed by the parties, all the
orders issued by the court and the final judgment rendered by
the court arranged in chronological order.
If the case is not an ordinary civil action but a special
proceeding or a case that involves multiple appeals, the mode
of appeal is not just by mere Notice of Appeal but has to be
by Record on Appeal.
When we say Appeal by Record on Appeal, you still have to
file a Notice of Appeal but at the same time file the Record on
Appeal.
The period is longer than an appeal by Notice of Appeal. An
appeal by Notice of Appeal shall be done within 15 days
whereas when it is an appeal by Records on Appeal, the period
is 30 days.
What is a Record on Appeal and why is it required in
special civil cases?
Record on Appeal is a summary of all that transpired in the
RTC in relation to that particular case. You have to present in
chronological form all of the copies of pleadings, motions,
interlocutory orders issued by the court that are related to the
appealed judgment or final order for the proper understanding
by the appellate court of the issue involved in that particular
case. You have to reproduce the entire records of the case.
You attach the Complaint, the Answer, the Reply, and all
subsequent pleadings filed until the appealed decision is
issued. You also incorporate the orders and interlocutory
orders relative to the case. They are to be presented in
chronological order so that the appellate court will have a
better understanding of the case.
But why is it required? Because in Ordinary Civil Actions, when
the appeal is perfected, the clerk of court of the RTC transmits
the entire record to the CA. But in special proceedings or in
civil cases where multiple appeals are allowed, when an order
or judgment is rendered, the case still continues so the records
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are not yet elevated. So, how can the CA understand what
happened without the records? That is called the record on
appeal.
Do you have to include there every motion, every order
of the case?
No, the law says you reproduce in chronological order copies
of only such pleadings, motions, petitions, and all interlocutory
orders as are relating to the appealed judgment or final order
for the proper understanding of the issues involved. This is to
allow the appellate court to review the order appealed from.
But there are some motions that need not be included, for
example, motion to postpone.
Multiple Appeals
Why do you have to reproduce the records of the case?
In the example given a while ago, in a multiple appeal for
example – it is a case where the court renders a final judgment
on a particular issue of the case and that particular issue is
already appealable. But since the other issues have not yet
been decided by the court, the entire records of the case
cannot be forwarded to the CA yet, it has to remain with the
RTC because the trial court is still not yet finished with the
case, it still has other issues to resolve.
Since you are only appealing a portion of a case which is the
judgment of the trial court on a particular issue, you cannot
bring the records of the case to the CA – you have to make
your own record and that is the Record on Appeal.
You are practically reproducing the records of the case in the
court. The records of the case is what we call as the
expediente. The expediente or the records of the case in the
possession of the court are arranged chronologically starting
from the complaint down to the last pleading. The manner by
which the records of the court shall be reproduced by
appellant. IOW, he makes his own records if he appeals a
certain portion of the decision to the appellate court.
Multiple appeals are allowed in:
1. Special proceedings
2. Actions for recovery of property with accounting
3. Actions for partition of property with accounting
4. Special civil actions of eminent domain (expropriation)
5. Special civil actions for foreclosure of the mortgage
What if the party filed a record on appeal without a
notice of appeal? Should the appeal be dismissed?
No, the appeal will not be dismissed because the filing of the
record on appeal is harder to comply with than the filing of a
notice of appeal. The filing of the record on appeal is more
expressive of the desire of the party to appeal.
Approval of record on appeal
Section 7. Approval of record on appeal. – Upon the filing
of the record on appeal for approval and if no objection is filed
by the appellee within five (5) days from receipt of a copy
thereof, the trial court may approve it as presented or upon
its own motion or at the instance of the appellee, may direct
its amendment by the inclusion of any omitted matters which
are deemed essential to the determination of the issue of law
or fact involved in the appeal. If the trial court orders the
amendment of the record, the appellant, within the time
limited in the order, or such extension thereof as may be
granted, or if no time is fixed by the order within ten (10) days
from receipt thereof, shall redraft the record by including
therein, in their proper chronological sequence, such
additional matters as the court may have directed him to
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
incorporate, and shall thereupon submit the redrafted record
for approval, upon notice to the appellee, in like manner as
the original draft.
Note: When you file an appeal by Record on Appeal, you
submit a Record on Appeal with the RTC for approval. You do
not bring the record right away to the CA. You file your appeal
with the RTC, the court of origin. You will file a Notice of
Appeal and then a Record on Appeal, which is practically a
sort of reproduction of records of the case before the court.
The appeal by Records of Appeal is subject to the approval of
the RTC.
What you have to remember here is that in appeals, where a
record on appeal is required, the law requires an approval.
The record on appeal has to be approved by the court. In
ordinary cases where you only file a notice of appeal, approval
is not required. A record on appeal has to be approved
because the other party is given the right to object your record
on appeal.
The possible grounds for objections are – necessary pleadings
were not produced or, you did not reproduce the pleading
properly.
If no objection within 5 days
The RTC will require the other party to make a comment on
your appeal. After the comment is made, the RTC will decide
whether the records are complete and accurate before it will
grant the same.
If no objection is made within 5 days by the other party, the
RTC will approve the Record on Appeal.
Order Amendment to be complied within 10 days
If there is an objection by the other party arguing that the
Record of Appeal is not very accurate since there are some
orders or pleadings that were not included in the Records of
Appeal submitted to the appellant because apparently it was
not favorable to him. it is incumbent to the other party to call
the attention of the court that it is not accurate.
The court will order the appellant to amend the Record on
Appeal. That order must be complied with within a period of
10 days.
Joint Record on Appeal
Section 8. Joint record on appeal. – Where both parties
are appellants, they may file a joint record on appeal within
the time fixed by section 3 of this Rule, or that fixed by the
court.
Is it possible that both sides will appear?
Yes, when both are not satisfied. If they both appeal, they
may make a Joint Record on Appeal
Can you ask the court for an extension to file the
Records on Appeal?
Yes. The court may extend the period to file Records on
Appeal but not the Notice of Appeal.
Why?
Because it is very easy to make the Notice of Appeal. It is only
one paragraph. It is just composed of 1-3 sentences.
But the records of appeal needs time to prepare. 30 days may
not be enough to prepare the Records on Appeal. That is why
you may ask the court for an extension of time to file Records
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on Appeal. Normally, the RTC will grant an extension of time
to file Records on Appeal but not the Records on Appeal.
Perfection of Appeal
Section 9. Perfection of appeal; effect thereof. – A
party’s appeal by notice of appeal is deemed perfected as to
him upon the filing of the notice of appeal in due time.
A party’s appeal by record on appeal is deemed perfected as
to him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over
the case upon the perfection of the appeals filed in due time
and the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction
only over the subject matter thereof upon the approval of the
records on appeal filed in due time and the expiration of the
time to appeal of the other parties.
In either case, prior to the transmittal of the original record or
the record on appeal, the court may issue orders for the
protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal.
Judge Q: What is the effect of perfection of appeal? The lower
court already loses its jurisdiction. IOW, cannot act on matters
involved in the case. However, there is this doctrine of residual
jurisdiction-authority of the trial court to issue orders for the
protection and preservation of the rights of the parties which
do not involve any matter related to the appeal.
If the decision has become final and executory, doctrine of
residual jurisdiction is not applicable. Meaning to say, orders
of execution will be in the jurisdiction of the lower court.
Note:
(a) As to him (appellant)
a. Upon filing of Notice of Appeal (This is in case of
ordinary civil actions)
b. Upon approval of Record on Appeal (it is not upon
the filing of Notice of Appeal)
(b) As to the other party (appellee)
a. Upon his filing also of the Notice of Appeal or the
lapse of the period to appeal
Review
Appeal is deemed perfected as to the filing of Notice of Appeal
by the appellant and the lapse of period to appeal by the
appellee.
If it is an appeal by Records on Appeal, it is deemed perfected
upon the approval of the Records on Appeal by the court that
was submitted by the appellant and also the lapse of the
period of the party to file a Record of Appeal if he wants to.
Effect of perfection of Appeal
What is the effect of the perfection of an appeal?
The court loses jurisdiction over the case.
Therefore, as a rule, the RTC could no longer act on anything
regarding the case.
XPN: Residual jurisdiction
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Residual Jurisdiction
Residual jurisdiction refers to the authority of a trial court to
issue orders for the protection and preservation of the rights
of the parties, which do not involve any matter litigated by the
appeal, approve compromises, permit appeals of indigent
litigants, order execution pending appeal in accordance with
Sec. 2 of Rule 39, and allow withdrawal of the appeal provided
these are done prior to the transmittal of the original record
or the record on appeal, even if the appeals have already been
perfected or despite the approval of the record on appeal, or
in case of a petition for review under Rule 42 before the Court
of Appeals gives due course to the petition.
The concept of residual jurisdiction of the trial court is
available at a stage in which the court is normally deemed to
have lost jurisdiction over the case or the subject matter
involved in the appeal. There is no residual jurisdiction to
speak of where no appeal or petition has even been filed.
N.B. This can be done only if the records of the case are still
with the trial court. IOW, although the appeal is perfected
already and jurisdiction is transferred from the lower court to
the appellate court, for as long as the records of the case has
not yet been forwarded by the trial court to the court of
appeals, it may still entertain some matters pertaining to the
case.
Effect of perfected appeal
1. 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.
2. 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.
GR: Once an appeal is deemed perfected from the viewpoint
of both sides, the trial court loses jurisdiction over the case.
The jurisdiction is automatically transferred to the CA.
Are there exceptions to the rule? Are there things that
the trial court can do even if it has no more
jurisdiction? What things or actions can the trial court
do?
Residual jurisdiction
Can the parties settle the case amicably despite the
fact that there is already an appeal?
Yes, compromise is welcome anytime.
Now, who will approve the compromise?
Technically, the court has no jurisdiction. But for as long as
the records are still there, the trial court can approve the
compromise. Now, suppose the records are already
transmitted to the CA? Then you better submit your
compromise agreement before the CA.
Duty of the Clerk of Court upon Perfection of Appeal
Section 10. Duty of clerk of court of the lower court
upon perfection of appeal. – Within thirty (30) days after
perfection of all the appeals in accordance with the preceding
section, it shall be the duty of the clerk of court of the lower
court:
(a) To verify the correctness of the original record or the
record on appeal, as the case may be, and to make a
certification of its correctness;
(b) To verify the completeness of the records that will be
transmitted to the appellate court;
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(c) If found to be incomplete, to take such measures as may
be required to complete the records, availing of the authority
that he or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall indicate in
his letter of transmittal the exhibits or transcripts not included
in the records being transmitted to the appellate court, the
reasons for their non-transmittal, and the steps taken or that
could be taken to have them available.
The clerk of court shall furnish the parties with copies of his
letter of transmittal of the records to the appellate court.
Judge Q: Now, within 30 days, different from rule 40 because
under Rule 40, clerk of court has within 15 days to transmit.
In Rule 41, within 30 days, COC shall verify the correctness
and completeness of the record so he has 30 days. Proper
court under rule 40 is CA. Within 45 days from receipt of notice
of COC, appellant is required to file a brief with proof of service
upon the appellee and within 45 days from receipt of
appellant's brief, appellee will file brief with proof of service.
Same under Rule 40, only need to file pleadings. The rules
also allow appellant to file a reply to appellee's brief covering
points that were covered. Extension of time not allowed unless
there is a good and just cause. In practice, court of appeals
typically allows extension of time.
What are the questions that may be raised on appeal? An
appeal from RTC to CA should not raise pure questions of law
because of Sec 2 of Rule 50 of the RoC. Under this Rule, an
appeal to Rule 41 raising only questions of law should be
dismissed. Issues of law not being reviewable by the court
under the same conditions, an appeal via notice of appeal
should be dismissed so ordinary appeal covers questions of
law or fact but in no case shall it be pure questions of law
otherwise dismissed. In pure questions of law, proper mode is
petition for review under rule 45.
Note: Once the appeal is already perfected, it is the duty of
the COC of the RTC:
1. To verify the correctness of original records and certify its
correctness
2. To verify completeness of records
3. If incomplete, to complete it
4. To transmit records to appellate courts within 30 days
N.B. If efforts to complete records fail to state in its transmittal
letter the reason for failure and steps taken to remedy it.
Example: TSN could no longer be produced. There is one
stenographic notes of one hearing that is no longer available
because when the hearing was conducted, the stenographer
is already dead. She was not able to transcribe the transcript
of stenographic notes in that particular hearing. The
stenographic notes is personal to him/her. Other
stenographers cannot transcribe, di sila kasabot. Dili na ma
transcribe since the stenographer already died. So the
stenographic notes cannot be completed. There is one
stenographic note that is missing which is very important for
a complete understanding of the case.
If that’s the case, the COC has to explain that in his transmittal
letter to the CA. The CA may ask the parties to agree on what
transpired on that particular hearing. They will have some sort
of stipulation of facts of what transcribed from the hearing,
what where the questions and answers, what was the
testimony all about. That could be resorted to in case the
record is incomplete.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Note: Even if the appeal has already been perfected but the
records have not yet been transmitted to the appellate court,
the trial court still has jurisdiction to set aside its order
approving the record on appeal.
Transcript
Section 11. Transcript. – Upon the perfection of the appeal,
the clerk shall immediately direct the stenographers
concerned to attach to the record of the case five (5) copies
of the transcripts of the testimonial evidence referred to in the
record on appeal. The stenographers concerned shall
transcribe such testimonial evidence and shall prepare and
affix to their transcripts an index containing the names of the
witnesses and the pages wherein their testimonies are found,
and a list of the exhibits and the pages wherein each of them
appears to have been offered and admitted or rejected by the
trial court. The transcripts shall be transmitted to the clerk of
the trial court who shall thereupon arrange the same in the
order in which the witnesses testified at the trial, and shall
cause the pages to be numbered consecutively.
Transfer of Stenographic Notes
These are the records of the questions and answers of the
witness during a particular hearing which should be in 5 copies
to be submitted to the Court of Appeals.
Transmittal
Section 12. Transmittal. – The clerk of the trial court shall
transmit to the appellate court the original record or the
approved record on appeal within thirty (30) days from the
perfection of the appeal, together with the proof of payment
of the appellate court docket and other lawful fees, a certified
true copy of the minutes of the proceedings, the order of
approval, the certificate of correctness, the original
documentary evidence referred to therein, and the original
and three (3) copies of the transcripts. Copies of the
transcripts and certified true copies of the documentary
evidence shall remain in the lower court for the examination
of the parties.
Note: It should be transmitted 30 days from perfection of the
appeal.
Section 13. Dismissal of appeal. – Prior to the transmittal
of the original record or the record on appeal to the appellate
court, the trial court may, motu proprio or on motion, dismiss
the appeal for having been taken out of time or for non-
payment of the docket and other lawful fees within the
reglementary period. (As amended by A.M. No. 00-2-10-SC,
May 1, 2000.)
Note: The trial court may motu proprio or on motion dismiss
the appeal on the following grounds:
1. Appeal taken out of time
2. Non-payment of docket fee
The dismissal of the appeal by non-payment of docket fee is
one of the grounds for the dismissal of appeal under Rule 50
but the court is given the discretion not to dismiss the case
and instead allow the parties to file the correct amount of
docket fee.
But when the appeal is taken out of time, normally the court
is very strict on this. It will dismiss the case because
compliance with the reglementary period to perfect an appeal
is mandatory and jurisdictional.
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Can the trial court dismiss the appeal on the ground
that the appeal is dilatory?
No. The trial court has no power to say that the appeal is
dilatory. Such question can only be passed upon by the
appellate court. Otherwise, trial courts can easily forestall
review or reversal of their decisions no matter how erroneous
such decisions may be. (Dasalla vs. Caluag, L-18765. July 31,
1963; GSIS vs. Cloribel, L- 22236, June 22, 1965; Republic vs.
Rodriguez, L-26056, May 29, 1969) The only ground for the
trial court to dismiss appeal is for having been taken out of
time. That’s all.

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RULE 42. PETITION FOR REVIEW FROM THE In Rule 41, you file your Notice of Appeal with the RTC, the
REGIONAL TRIAL COURTS TO THE COURT OF APPEALS court which rendered the decision you are questioning. When
Rule 42 applies to an appeal from the judgment or final order you file a Record on Appeal, you also file it with the RTC
of the Regional Trial Court to the Court of Appeals in cases because it is subject to the approval of the RTC. Once
decided by the former in the exercise of its appellate approved by the RTC, the approved Records on Appeal will
jurisdiction. then be submitted to the CA. In Rule 42, you file the appeal
with the Court of Appeals already.
May a petition for review be treated as a notice of
appeal? How Appeal Taken
No, even if the contents of the former already included the a. By verified petition
required contents of the latter, these modes of appeal clearly a. Within 15 days from notice of judgment or final order,
remain distinct procedures which cannot, absent any or
compelling reason therefore, be loosely interchanged with one b. Within 15 days from notice of denial of petitioner’s
another. MNT or MR
b. Paying at the same time the docket fees and other lawful
How Appeal Taken fees with the CA
Section 1. How appeal taken; time for filing. – A party c. Deposit P500 for cost
desiring to appeal from a decision of the Regional Trial Court d. Furnish the RTC and adverse party a copy of the petition
rendered in the exercise of its appellate jurisdiction may file a
verified petition for review with the Court of Appeals, paying How does it differ from Rule 41?
at the same time to the clerk of said court the corresponding In Rule 41, you file the docket fee in the RTC. In Rule 42, you
docket and other lawful fees, depositing the amount of file the docket fee directly with the CA, and not anymore to
P500.00 for costs, and furnishing the Regional Trial Court and the RTC.
the adverse party with a copy of the petition. The petition shall
be filed and served within fifteen (15) days from notice of the In addition to the docket fees, you are also required to pay
decision sought to be reviewed or of the denial of petitioner’s other lawful fees plus a deposit of P500 pesos for cost. You
motion for new trial or reconsideration filed in due time after pay that with the CA and not with the RTC. You will also need
judgment. Upon proper motion and the payment of the full to furnish the RTC and the adverse party a copy of the
amount of the docket and other lawful fees and the deposit petition.
for costs before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen (15) Summary
days only within which to file the petition for review. No
further extension shall be granted except for the most Rule 41 Rule 42
compelling reason and in no case to exceed fifteen (15) days. Appeal from the decision of Appeal from the decision of
the RTC in the exercise of its the RTC in the exercise of its
Judge Q: Only one extension is allowed. This is quite different original discretion appellate jurisdiction
from ordinary appeal because ordinary appeal is made by Mode of appeal is either Verified petition for review
filing a verified petition for review with the CA paying at the notice of appeal or record
same time, to the COC the corresponding docket and other on appeal
lawful fees, depositing the amount of P500 and furnishing the Appeal is filed with the RTC Appeal is filed with the
RTC and adverse party of the copy of the petition. Court of Appeals
The docket fees and other The docket fees, other
Note: This Rule 42 also refers to the appeal from the decision lawful fees is paid with the lawful fees, and deposit of
of the RTC to the Court of Appeals but Rule 42 refers to the RTC the amount of P500 for
appeal of the decision of the RTC to the CA on cases that were costs is directly paid with
decided by the RTC in its exercise of appellate jurisdiction. the CA
Meaning, the case did not really originate from the RTC. The
case originated in the MTC, it was appealed to the RTC, and How many copies of the petition?
when the RTC decided the case against the losing party, the You have to prepare at least 7 copies. Unlike in the SC where
latter may appeal the decision of the RTC to the CA. The mode you have to prepare 18 copies.
of appeal is no longer by Notice of Appeal or by Record of
Appeal. It shall be called Petition for Review under Rule 42. When to file
Within 15 days from notice of the decision or denial of motion
Remember! A petition for review under Rule 42 must be for reconsideration or new trial
VERIFIED.
What is the difference in period to file between Rule
Rule 41 v Rule 42 41 and Rule 42?
What is the difference between Rule 41 and Rule 42? In Rule 41, if your motion for reconsideration is denied, you
Rule 41 refers to the appeal from the decision of the RTC in can still appeal within the remaining balance of the 15-day
the exercise of its original jurisdiction. period. In Rule 42, the 15-day period starts all over again
because the law says “or of the denial.” So, another fresh 15
Rule 42 refers to the appeal from the decision of the RTC in days. This because it is more difficult to prepare a petition for
the exercise of its appellate jurisdiction over the MTC. review. This is more time- consuming than a simple notice of
appeal.
The method of appeal is also quite different. In Rule 42, when
the case is decided by the RTC in the exercise of its appellate Example: The case was decided by the MTC, appealed to the
jurisdiction and you are not contented with the decision and RTC. And then in the RTC, you lost again. You receive a copy
appeal it to the CA, what you will file is a Petition for Review of the decision on March 31. On April 10, you file a motion for
under Rule 42.
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reconsideration. And then on April 20, you receive the order
denying the MFR.
How many days more are left for you to file your
petition for review?
The answer is 15 days all over again. Look at the law: “The
petition shall be filed and served within fifteen (15) days from
notice of the decision sought to be reviewed or of the denial
of petitioner’s motion for new trial or reconsideration.”
Meaning, you count another 15 days from the denial.
So the filing a motion for new trial or reconsideration in Rule
42 does not only interrupt the running of the period but it
commences to run all over again. Unlike in Rule 41, in ordinary
appeal, where the filing of the motion for reconsideration or
new trial merely interrupts the running of the period to appeal.
And it commences to run again from the time you are notified
that your motion is denied. See the difference?
Actually, if you are not serious in your study of appeal, you
will not see these distinctions. You will just assume that the
principles under Rule 41 and Rule 42 are the same.
Under Section 1, is the 15-day period to file petition
for review extendible?
Under Rule 41, the 15-day period to file notice of appeal is not
extendible – no exceptions. But in Rule 42, the 15-day period
to file petition for review is EXTENDIBLE according to the last
sentence of Section 1, provided you pay your docket and other
lawful fees, the CA will grant additional 15 days within which
to file a petition for review.
Where will you file your motion for extension of time
to file petition for review?
You file your motion for extension to the CA. The CA itself will
grant the extension.
How many more days can the CA grant?
The CA may grant extension of time to file petition for 15 days
only after complying with the prior conditions of payment of
docket fees and cost.
Can you ask for extension?
No further extension except for most compelling reason.
The general rule is that you are only allowed one extension.
But if you read Rule 42 it says there that no further extension
except for most compelling reason.
Form and Contents
Section 2. Form and contents. – The petition shall be filed
in seven (7) legible copies, with the original copy intended for
the court being indicated as such by the petitioner, and shall
(a) state the full names of the parties to the case, without
impleading the lower courts or judges thereof either as
petitioners or respondents; (b) indicate the specific material
dates showing that it was filed on time; (c) set forth concisely
a statement of the matters involved, the issues raised, the
specification of errors of fact or law, or both, allegedly
committed by the Regional Trial Court, and the reasons or
arguments relied upon for the allowance of the appeal; (d) be
accompanied by clearly legible duplicate originals or true
copies of the judgments or final orders of both lower courts,
certified correct by the clerk of court of the Regional Trial
Court, the requisite number of plain copies thereof and of the
pleadings and other material portions of the record as would
support the allegations of the petition.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
The petitioner shall also submit together with the petition a
certification under oath that he has not theretofore
commenced any other action involving the same issues in the
Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there is such other
action or proceeding, he must state the status of the same;
and if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme
Court, the Court of Appeals, or different divisions thereof, or
any other tribunal or agency, he undertakes to promptly
inform the aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom.
Forms and contents of a Petition for review
1. Petition shall be in 7 copies
2. State the full names of the parties without impleading the
lower court judge as respondent
a. Take note of Section 2. Do not implead the lower
court or the judge. We only do that in certiorari under
Rule 65 in Special Civil Actions, but not on appeal
3. Indicate specific material dates
a. The date you received the decision and the date you
filed your appeal
4. Set forth concisely a statement of the matters involved,
issues raised, specification of errors of facts or law or both
5. Reasons or arguments relied upon for the allowance of
the appeal
6. Accompanied by clearly legible duplicate originals or true
copies of the judgment or final orders appealed
7. Submit a certification of non-forum shopping
a. failure to comply with such would mean the dismissal
of the case.
Under paragraph (c), what issues can you raise in the
petition for review?
Errors of fact, errors of law, or both- mixed errors of fact or
law.
Isn’t it that if it is an error of law, it should be filed
with the SC? How do you reconcile this with the
Constitution?
Actually, when the law says decisions of the RTC appealable
directly to the SC, it was decided pursuant to its original
jurisdiction. But if it is decided pursuant to its appellate
jurisdiction, the appeal should be to the CA even on pure
questions of law without prejudice of going to the SC later on.
Effect of failure to comply with requirements
Section 3. Effect of failure to comply with
requirements. – The failure of the petitioner to comply with
any of the foregoing requirements regarding the payment of
the docket and other lawful fees, the deposit for costs, proof
of service of the petition, and the contents of and the
documents which should accompany the petition shall be
sufficient ground for the dismissal thereof.
Note: Failure to comply with the requirements results to a
dismissal of the appeal.
What are these requirements?
1. Payment of docket fee and other lawful fees or payment
of deposit for costs
2. Filing your petition within the reglementary days of 15
days
3. Prepared in 7 copies
4. Compliance with the forms and contents as required by
the rules like stating the full names of the parties,
indicating the specific material dates, setting forth
concisely a statement of the matters involved, the issues
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raised, and the specification of errors of facts or law or
both
5. Reasons or arguments relied upon for the allowance of
appeal
6. Attachment of the clearly legible duplicate original or true
copies of the judgment or final orders appealed
7. Certificate of Non-Forum Shopping
Note: Failure to append the pleadings and material portions
of the record does not justify the outright dismissal of the
petition. There is substantial compliance when the pleadings
were attached to the MR.
Action on the Petition
Section 4. Action on the petition. – The Court of Appeals
may require the respondent to file a comment on the petition,
not a motion to dismiss, within ten (10) days from notice, or
dismiss the petition if it finds the same to be patently without
merit, prosecuted manifestly for delay, or that the questions
raised therein are too unsubstantial to require consideration.
Judge Q: Non-compliance with requirement can be a ground
for dismissal of petition. In fact, CA can outrightly dismiss the
petition as stated in Section 4 as if it is patently without any
merit or prosecuted merely for delay.
Require Comment within 10 days; Outright Dismissal
Once your petition for review is already filed with the
Court of Appeals, what will the CA do?
a. It may require the respondent to comment within 10 days
b. It may dismiss the case outright.
Note: If you are the respondent in the PFR under Rule 42,
once you receive the petition filed by the petitioner-appellant,
do not answer right away. For all you know, it might dismiss
the case outright because the CA can dismiss the petition
outright.
Remember, the PFR which is a mode of appeal is not a matter
of right but a matter of judicial discretion or a privilege given
to you only after you have complied with the requirements
under the law.
Grounds for Outright Dismissal
1. Petition is patently without merit
2. Prosecuted manifestly for delay
3. Questions raised therein are too unsubstantial to require
consideration
Contents of Comment
Section 5. Contents of comment. – The comment of the
respondent shall be filed in seven (7) legible copies,
accompanied by certified true copies of such material portions
of the record referred to therein together with other
supporting papers and shall (a) state whether or not he
accepts the statement of matters involved in the petition; (b)
point out such insufficiencies or inaccuracies as he believes
exist in petitioner’s statement of matters involved but without
repetition; and (c) state the reasons why the petition should
not be given due course. A copy thereof shall be served on
the petitioner.
Note: If the court finds that the petition has complied with all
the requirements under the law and therefor it is sufficient in
form and substance, the CA may require the respondent to file
his comment to the petition.
The comment:
1. Must be in 7 copies
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
2. Statement whether he accepts the statement of matters
involved
3. Point out insufficiencies or inaccuracies in the statement
of matters involved
4. Statement of reasons why the petition should not be
given due course
Due Course
Section 6. Due course. – If upon the filing of the comment
or such other pleadings as the court may allow or require, or
after the expiration of the period for the filing thereof without
such comment or pleading having been submitted, the Court
of Appeals finds prima facie that the lower court has
committed an error of fact or law that will warrant a reversal
or modification of the appealed decision, it may accordingly
give due course to the petition.
When you file a petition for review from the RTC to the
CA, is the CA obliged to entertain the petition?
No, this is discretionary under Section 6. The CA may or may
not give due course to the petition unlike in ordinary appeal.
When the CA says “petition is given due course”, the next step
is that the CA will now require the RTC to elevate the entire
records of the case within 15 days from notice for review. That
is now the time where the Court of Appeals will closely
scrutinize the records of the case. There is prima facie
evidence that the lower court has committed an error of fact
or law.
If your petition is given due course by the Appellate Court, it
means that you have a big chance of winning. If otherwise the
CA finds that your petition is unmeritorious, it can outrightly
dismiss your petition without really requiring the respondent
to file a Comment.
In ordinary appeal under Rule 41, when you file notice of
appeal and you pay your docket fee, your appeal is
automatically entertained. At least it will be heard by the CA.
But in Rule 42, it is not the same. When you go there, whether
your petition for review will be given due course or not even
if you have paid the docket fee. Normally, the CA will require
you to comment and then chances are after another month
and after reading your petition and your comment, the CA will
refuse to give due course to your petition, “Your petition is
hereby dismissed!” So, you must convince the CA that there
is merit.
What happens when the petition for review is given
due course?
The parties will be required to submit their respective
memoranda.
Elevation of Record
Section 7. Elevation of record. – Whenever the Court of
Appeals deems it necessary, it may order the clerk of court of
the Regional Trial Court to elevate the original record of the
case including the oral and documentary evidence within
fifteen (15) days from notice.
When appeal is deemed perfected
Section 8. Perfection of appeal; effect thereof. –
(a) Upon the timely filing of a petition for review and the
payment of the corresponding docket and other lawful fees,
the appeal is deemed perfected as to the petitioner.
The Regional Trial Court loses jurisdiction over the case upon
the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
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However, before the Court of Appeals gives due course to the
petition, the Regional Trial Court may issue orders for the
protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal.
(b) Except in civil cases decided under the Rule on Summary
Procedure, the appeal shall stay the judgment or final
order unless the Court of Appeals, the law, or these Rules
shall provide otherwise.
When is appeal deemed perfected?
In the case of a Petition for Review, the appeal is deemed
perfected as to the appellant-petitioner the moment he:
1. Files the PFR to the CA and
2. At the same time pay the docket fees, other lawful fees
plus deposit for costs
Does the RTC have the power to act despite the fact
that the petition for review is already before the CA?
Suppose I lost in the MTC, and I also lost on appeal in
the RTC. I file a petition for review. What happens to
the decision? Can the decision be enforced?
NO, it cannot be enforced yet because it is not yet final. We
still have to wait for the appeal to be dismissed or to be
entertained and denied later. Under paragraph [b], the appeal
shall stay the judgment or final order UNLESS the CA, the law
or these rules should provide otherwise.
Effect of Perfection
1. Trial court loses jurisdiction
a. XPN: Residual jurisdiction
2. Appeal stays judgment or final order
a. XPN: Rule on summary procedure
Examples: Ordinary case which emanated from the Municipal
Trial Court (MTC) and does not fall under the Rules of
Summary Procedure
If that case is appealed to the RTC and the RTC affirmed the
decision of the of the MTC, but you are still not contented and
appealed the decision of the RTC by filing a Petition for Review
under Rule 42. The decision of the RTC affirming the decision
of the MTC cannot be implemented yet. It will stay the
judgment or final order of the RTC.
Judgment of the RTC was on a case that falls under Summary
Procedure decided by the MTC
The decision of the RTC even if appealed to the Court of
Appeals under Rule 42 shall not stay the execution.
E.g. Ejectment case
Forcible entry or unlawful detainer belongs to the exclusive
jurisdiction of the MTC and it is under the Rules of Summary
Procedure.
Suppose the MTC ruled in favor of the plaintiff ordering the
defendant to vacate the land. The defendant appealed the
case to the RTC. The RTC affirmed the decision of the MTC.
The defendant appealed the case to the CA by way of Petition
for Review under Rule 42.
Will the ejectment of the defendant be stayed by his appeal
to the Court of Appeals?
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
No because it is under the Rules of Summary Procedure not
unless the defendant puts up a supersedeas bond, then the
Court of Appeals may allow it.
Jurisdiction of the RTC
1. The RTC 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.
2. However, before the CA gives due course to the petition,
the RTC may:
a. Issue orders for the protection and preservation of
the rights of the parties which do not involve any
matter litigated by the appeal, approve
compromises
b. Permit appeals of indigent litigants
c. Order execution pending appeal in accordance with
Sec. 2 of Rule 39
d. Allow withdrawal of the appeal
Note: The Doctrine of Residual Jurisdiction of the RTC, at item
(2) above, applies as in cases under Rule 42, except that the
RTC must exercise this jurisdiction before the CA gives due
course to the petition. [Sec. 8(a), Rule 42]
In contrast, the RTC must exercise residual jurisdiction in Rule
41 prior to transmittal of the original record or the record on
appeal. [Sec. 9, Rule 41]
Submission for Decision
Section 9. Submission for decision. – If the petition is
given due course, the Court of Appeals may set the case for
oral argument or require the parties to submit memoranda
within a period of fifteen (15) days from notice. The case shall
be deemed submitted for decision upon the filing of the last
pleading or memorandum required by these Rules or by the
court itself.
Note: The Court may set the case for:
a. Oral argument or
b. Ask parties to submit a memoranda
Judge Q: So far, we have discussed Rules 41 and 42
41- mode of appeal for decision of the court in the exercise of
its original jurisdiction
42- mode of appeal of a judgment of RTC in exercise of its
appellate jurisdiction so it follows that a petition for review is
not available in judgments issued by MTCs because it does not
have appellate jurisdiction.
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RULE 43. APPEALS FROM THE COURT OF TAX APPEALS
AND QUASI-JUDICIAL AGENCIES TO THE COURT OF
APPEALS
Scope
Section 1. Scope. – This Rule shall apply to appeals from
judgments or final orders of the Court of Tax Appeals and from
awards, judgments, final orders or resolutions of or authorized
by any quasi- judicial agency in the exercise of its quasi-
judicial functions. Among these agencies are the Civil Service
Commission, Central Board of Assessment Appeals, Securities
and Exchange Commission, Office of the President, Land
Registration Authority, Social Security Commission, Civil
Aeronautics Board, Bureau of Patents, Trademarks and
Technology Transfer, National Electrification Administration,
Energy Regulatory Board, National Telecommunications
Commission, Department of Agrarian Reform under Republic
Act No. 6657, Government Service Insurance System,
Employees Compensation Commission, Agricultural
Inventions Board, Insurance Commission, Philippine Atomic
Energy Commission, Board of Investments, Construction
Industry Arbitration Commission, and voluntary arbitrators
authorized by law.
What is the petition for review under Rule 43?
This Rule applies to the appeal from decisions of the following
quasi-judicial bodies, in the exercise of its quasi-judicial
power.
The petition for review under Rule 43 refers to the appeal from
the decision of the CTA and from the different quasi-judicial
agencies. And the decision of the quasi-judicial agencies shall
be appealed to the CA by way of a petition for review. It’s
different from a petition for review under Rule 42.
This Rule 43 applies only to appeal from the decisions of the
following quasi-judicial bodies in the exercise of its quasi-
judicial powers.
Note:
The SEC has already been divested of its quasi-judicial
powers; they can no longer hear, entertain or decide intra-
corporate disputes; the quasi-judicial power of the SEC was
already transferred to the RTC.
Decisions of the CTA are now appealable directly to the SC
pursuant to RA 9282 amending RA 1125. The CTA now is
treated as equal to the CA.
Global Medical Center of Laguna Inc v Ross Systems
International (2021)
The CA is divested of jurisdiction for future appeals from CIAC
arbitral awards that will be field after the promulgation of the
Decision (May 11, 2021; uploaded August 6, 2021). Thus, for
future appeals, if the issue to be raised is a pure question of
law, the appeal should be filed directly and exclusively with
the Court through a petition for review under Rule 45. If the
parties will appeal the factual issues on the ground of a
challenge to the integrity of the CIAC or violation of the
Constitution or positive law, the appeal may be filed with CA
through the special civil action for certiorari under Rule 65, on
grounds of grave abuse of discretion amounting to lack or
excess in jurisdiction.
Cases not covered
Section 2. Cases not covered. – This Rule shall not apply
to judgments or final orders issued under the Labor Code of
Philippines.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Cases Not Covered
1. NLRC and DOLE decisions are not covered, but this has
already been abandoned in the case of St. Martin Funeral
Homes v NLRC
2. Appeals from the decisions of the Office of the
Ombudsman is now appealable to the CA (Fabian v
Desierto)
3. RTC decisions when it is acting as a corporate court is
appealable to the CA under Rule 43 and not Rule 41.
NLRC and DOLE decisions
Before, in the Labor Code, decisions of the NLRC and DOLE is
appealable directly to the SC. But not anymore now because
the SC, in the case of St. Martin Funeral Homes, said: “We
have to observe the hierarchy of courts. You should not
directly go to the SC from the decision of a quasi-judicial body.
You should pass through the CA before you can reach the SC.”
So, in the St. Martin Funeral Homes, the decision of the NLRC
is appealable to the CA by way of a petition for certiorari under
Rule 65, which is actually not a mode of appeal. It’s by way of
an original special civil action under Rule 65.
Now, if the CA decides on that case and still you are not
contented, then that is the time you can now go to the SC.
But this time, you have to use another certiorari. This time, it
will be way of a certiorari under Rule 45.
Decisions of the RTC acting as a corporate court
Sec. 5.2, RA 8799. The Commission’s jurisdiction over all
cases enumerated under section 5 of Presidential Decree No.
902-A is hereby transferred to the Courts of general
jurisdiction or the appropriate Regional Trial Court: Provided,
That the Supreme Court in the exercise of its authority may
designate the Regional Trial Court branches that shall exercise
jurisdiction over the cases. The Commission shall retain
jurisdiction over pending cases involving intra- corporate
disputes submitted for final resolution which should be
resolved within one (1) year from the enactment of this Code.
The Commission shall retain jurisdiction over pending
suspension of payment/rehabilitation cases filed as of 30 June
2000 until finally disposed.
The decisions of the RTC now, acting as a corporate court, is
appealable to the CA under Rule 43 and not under Rule 41.
Remember, that under RA 8799 and AM No. 04-9-07- SC, the
RTC is vested with the jurisdiction now to hear and decide
intra-corporate disputes. These are cases that originally
belonged to the jurisdiction of the SEC. But since the SEC has
already been divested, by RA 8799, of its quasi-judicial power,
these intra-corporate disputes will now be tried in the RTC.
And when the RTC acting as a corporate court decides the
case involving intra-corporate disputes, the RTC here is
treated like a quasi-judicial body. And therefore, the mode of
appeal is Rule 43 and not Rule 41. Because, Rule 41 applies
only to decisions of the RTC done in the exercise of its original
jurisdiction. Now here, the RTC, when it decides a corporate
case or intra-corporate dispute, is acting as a special court; a
corporate court and so, the mode of appeal is Rule 43.
Note: Judge Q discussed the cases of Royal Plant Union v Coca
Cola and Coco Cola Bottlers.
Where to appeal
Section 3. Where to appeal. – An appeal under this Rule
may be taken to the Court of Appeals within the period and in
the manner herein provided, whether the appeal involves
questions of fact, of law, or mixed questions of fact and law.
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Where do you file your petition for review under Rule
43?
You file it with the CA, even on pure questions of law. In other
words, even if there is no question of fact involved- you are
questioning the decision of the quasi-judicial body on the basis
of a pure question of law- you can elevate that to the CA. You
need not go to the SC directly.
Period to Appeal
Section 4. Period of appeal. – The appeal shall be taken
within fifteen (15) days from notice of the award, judgment,
final order or resolution, or from the date of its last
publication, if publication is required by law for its effectivity,
or of the denial of petitioner’s motion for new trial or
reconsideration duly filed in accordance with the governing
law of the court or agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon proper motion and the
payment of the full amount of the docket fee before the
expiration of the reglementary period, the Court of Appeals
may grant an additional period of fifteen (15) days only within
which to file the petition for review. No further extension shall
be granted except for the most compelling reason and in no
case to exceed fifteen (15) days.
Period to appeal
1. 15 days from receipt of judgment OR order denying the
motion for reconsideration or new trial
2. Only one motion for reconsideration is allowed
3. Motion for extension of time to file petition can be granted
only for 15 days after payment of required fees
How appeal is taken
Section 5. How appeal taken. – Appeal shall be taken by
filing a verified petition for review in seven (7) legible copies
with the Court of Appeals, with proof of service of a copy
thereof on the adverse party and on the court or agency a
quo. The original copy of the petition intended for the Court
of Appeals shall be indicated as such by the petitioner.
Upon the filing of the petition, the petitioner shall pay to the
clerk of court of the Court of Appeals the docketing and other
lawful fees and deposit the sum of P500.00 for costs.
Exemption from payment of docketing and other lawful fees
and the deposit for costs may be granted by the Court of
Appeals upon a verified motion setting forth valid grounds
therefor. If the Court of Appeals denies the motion, the
petitioner shall pay the docketing and other lawful fees and
deposit for costs within fifteen (15) days from notice of the
denial.
How Appeal Taken
1. Verified petition in 7 copies
2. Proof of service to adverse party and the court, or agency
a quo
3. Payment of docket fees, etc.
Contents of the petition
Section 6. Contents of the petition. – The petition for
review shall (a) state the full names of the parties to the case,
without impleading the court or agencies either as petitioners
or respondents; (b) contain a concise statement of the facts
and issues involved and the grounds relied upon for the
review; (c) be accompanied by a clearly legible duplicate
original or a certified true copy of the award, judgment, final
order or resolution appealed from, together with certified true
copies of such material portions of the record referred to
therein and other supporting papers; and (d) contain a sworn
certification against forum shopping as provided in the last
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
paragraph of section 2, Rule 42. The petition shall state the
specific material dates showing that it was filed within the
period fixed herein.
Contents
1. Full name of the parties
2. Concise statements of the facts, etc
3. Copy of the original judgment
4. Certificate of non-forum shopping
The procedure is practically the same as that of Rule 42.
Effect of failure to comply with requirements
Section 7. Effect of failure to comply with
requirements. – The failure of the petitioner to comply with
any of the foregoing requirements regarding the payment of
the docket and other lawful fees, the deposit for costs, proof
of service of the petition, and the contents of and the
documents which should accompany the petition shall be
sufficient ground for the dismissal thereof.
What is the effect of the failure to comply with the
requirements?
Dismissal of the petition
Action on the Petition
Section 8. Action on the petition. – The Court of Appeals
may require the respondent to file a comment on the petition,
not a motion to dismiss, within ten (10) days from notice, or
dismiss the petition if it finds the same to be patently without
merit, prosecuted manifestly for delay, or that the questions
raised therein are too unsubstantial to require consideration.
Now, what will be the action of the CA on the petition
for review under Rule 43?
The same as that under Rule 42. Either the CA will:
a. Entertain your petition and require the respondent to file
their comment
b. If not, the CA may outrightly dismiss your petition if:
i. It is patently without merit
ii. It is executed manifestly for delay
iii. The arguments raised therein are too unsubstantial to
warrant consideration
Just like Rule 42, your petition is not a matter of right. The CA
may throw out of the window your petition right away without
even requiring the other party to comment if the CA feels that
your petition is really, very unmeritorious.
Contents of Comment
Section 9. Contents of comment. – The comment shall be
filed within ten (10) days from notice in seven (7) legible
copies and accompanied by clearly legible certified true copies
of such material portions of the record referred to therein
together with other supporting papers. The comment shall (a)
point out insufficiencies or inaccuracies in petitioner’s
statement of facts and issues; and (b) state the reasons why
the petition should be denied or dismissed. A copy thereof
shall be served on the petitioner, and proof of such service
shall be filed with the Court of Appeals.
Now, if the CA will require the respondent to file his
comment, the comment of the respondent must:
1. Point out the inaccuracies of the petition
2. State the reasons why the petition be denied
3. Must be filed within 10 days
Due Course
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Section 10. Due course. – If upon the filing of the comment
or such other pleadings or documents as may be required or
allowed by the Court of Appeals or upon the expiration of the
period for the filing thereof, and on the basis of the petition
or the records the Court of Appeals finds prima facie that the
court or agency concerned has committed errors of fact or law
that would warrant reversal or modification of the award,
judgment, final order or resolution sought to be reviewed, it
may give due course to the petition; otherwise, it shall dismiss
the same. The findings of fact of the court or agency
concerned, when supported by substantial evidence, shall be
binding on the Court of Appeals.
Due Course
Findings of fact of the court or agency concerned, when
supported by substantial evidence, shall be binding on the CA.
Doctrine of Primary Jurisdiction
Just like Rule 42, if the court finds that there is prima facie
evidence of error committed by the quasi- judicial body, it may
give due course to the petition.
However, in Rule 43, the factual findings of a quasi- judicial
body, when supported by substantial evidence, shall be
binding on the CA. What this means is that factual findings of
a quasi-judicial body should have great weight on the CA
under the doctrine of primary jurisdiction because these quasi-
judicial bodies are supposed to be experts in their respective
fields.
Like, for example, when you talk of DAR or DARAB. They are
experts in agricultural matters, mga agricultural disputes, dili
ba? So, since they are specialized – like for example, the
Construction Industry Adjudication Commission, or CIAC –
they are supposed to be experts in the construction industry.
Usually, when the dispute is between the owner of the
building and the contractor, the contract between them would
usually contain a provision that any dispute arising out of said
construction contract, it shall be referred to the arbitrator. And
the findings of the arbitrator – which is the CIAC – is
appealable to the CA.
And when the CIAC decides the case – since they are
supposed to be experts on construction matters since the
persons who comprise the CIAC, normally there are three of
them called commissioners, they are usually engineers; civil
engineers and lawyers. And so, since they are civil engineers,
they know much about how a building is constructed and who
violated the terms. Like unsa, sakto ba na ang gigamit na
papilit sa tiles, okay?
So, if there is a controversy there, this CIAC will be the one to
decide. And the factual findings of the CIAC will be respected
by the CA. It will not anymore be disturbed. In other words,
the CA will adapt the factual findings. So the CA will only
examine the legal issues raised, not the factual issues because
the decision of the quasi-judicial body, who is considered to
be an expert, is binding on the CA.
Transmittal of records
Section 11. Transmittal of record. – Within fifteen (15)
days from notice that the petition has been given due course,
the Court of Appeals may require the court or agency
concerned to transmit the original or a legible certified true
copy of the entire record of the proceeding under review. The
record to be transmitted may be abridged by agreement of all
parties to the proceeding. The Court of Appeals may require
or permit subsequent correction of or addition to the record.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Note: When the CA gives due course to a petition, it will order
the quasi-judicial bodies to immediately elevate the records of
the case to the CA for review.
Effect of appeal
Section 12. Effect of appeal. – The appeal shall not stay
the award, judgment, final order or resolution sought to be
reviewed unless the Court of Appeals shall direct otherwise
upon such terms as it may deem just.
Note: It will not stay the award, judgment or final order sought
to be reviewed unless the CA provides otherwise.
Now, when you appeal the decision of a quasi- judicial body
to the CA, what will be the effect of that appeal? Will it prevent
the execution of the judgment?
Normally, when you appeal, it means that the decision is not
yet final so it will stay the execution of the judgment. But in
the case of petition for review under Rule 43, the appeal under
Rule 43 on the decision of a quasi-judicial body will not stay
the award, judgment or final order sought to be reviewed
unless the CA provides otherwise.
In other words, when the quasi-judicial body decides the case,
that decision is immediately executory. Even if the losing party
will appeal it to the CA, the prevailing party can have it
executed immediately, not unless the CA provides otherwise.
And how is it done?
When you appeal the ruling of a quasi-judicial body to the CA,
you must also pray to the CA the issuance of a writ of
preliminary injunction or a TRO to prevent the immediate
execution or enforcement of the decision of the quasi-judicial
body.
Dean M: Without a TRO or preliminary injunction issued by
the CA, the decision can now be executed despite the
pendency of the appeal.
Submission for decision
Section 13. Submission for decision. – If the petition is
given due course, the Court of Appeals may set the case for
oral argument or require the parties to submit memoranda
within a period of fifteen (15) days from notice. The case shall
be deemed submitted for decision upon the filing of the last
pleading or memorandum required by these Rules or by the
Court of Appeals.
When does the CA decide an appeal under Rule 43?
The case shall be deemed submitted after both parties have
already presented their respective memorandum, or after the
lapse of the period for them to file their memorandum.
Bar Q: Explain each mode of certiorari: As a mode of review
of the decisions of the National Labor Relations Commission
and the Constitutional Commissions. (2.5%)
Certiorari as a mode of review of the decision of the NLRC is
elevated to the Court of Appeals under Rule 65, as held in the
case of St. Martin’s Funeral Home v. NLRC (GR No. 130865,
09/16/1998). Certiorari as a mode of review from the
Commission of Audit (COA) and COMELEC is elevated to the
Supreme Court within 30 days from notice of the judgment,
decision or final order or resolution sought to be reviewed, as
provided for under Rule 64 of the Rule of Civil Procedure. In
the case of the Civil Service Commission (CSC), review of its
judgments is through petitions for review under Sec. 5, Rule
43.
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Review of decisions of the NLRC
The remedy of a party aggrieved by the decision of the
National Labor Relations Commission is to promptly move for
the reconsideration of the decision and if denied to timely file
a special civil action of certiorari under Rule 65 within 60 days
from notice of the decision. In observance of the doctrine of
hierarchy of courts, the petition for certiorari should be filed
with the Court of Appeals.
The Court of Appeals may review such decision only when
there is a grave abuse of discretion amounting to lack of
jurisdiction. It will not review the entire decision of the NLRC
for reversible errors on questions of fact and law.
Appeals from the Sandiganbayan
Decisions and final orders of the Sandiganbayan shall be
appealable to the Supreme Court by way of a petition for
review on certiorari under Rule 45 raising pure questions of
law. Certiorari under Rule 65 is not the remedy.
The appellate jurisdiction of the Supreme Court over decisions
and final orders of the Sandiganbayan is limited only to
questions of law. Its factual findings, as a rule, are conclusive
upon the Court.
Review of the rulings of the Ombudsman
The rulings of the Office of the Ombudsman may either be (a)
in administrative disciplinary cases or (b) criminal cases.
In administrative disciplinary cases, the rulings of the Office
of the Ombudsman are appealable to the Court of Appeals via
Rule 43. In these cases, the mode of review is appeal.
In criminal cases, the ruling of the Ombudsman shall be
elevated to the Supreme Court by way of Rule 65. The
Supreme Court’s power of review over resolutions and orders
of the Office of the Ombudsman is restricted only to
determining whether grave abuse of discretion has been
committed by it.
When decision of the Ombudsman is final and
appealable
The Court recognizes only two instances where a decision of
the Ombudsman is considered final and unappealable and,
thus, immediately executory. The first is when the respondent
is absolved of the charge; and second is, 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.
Appeals from judgments of the Court of Tax Appeals
Under Sec. 11 of RA 9282, no civil proceeding involving
matters arising under the NIRC, the TCC or the Local
Government Code shall be maintained, except as herein
provided, until and unless an appeal has been previously filed
with the CTA en banc and disposed of in accordance with the
provisions of the Act. A party adversely affected by a
resolution of a Division of CTA on a motion for reconsideration
or new trial, may file a petition for review with the CTA en
banc.
Sec. 11 of RA 9282 further provides that a party adversely
affected by a decision or ruling of the CTA en banc may file
with the SC a verified petition for review on certiorari pursuant
to Rule 45.
Effect of non-compliance
An appeal directly filed to the Supreme Court from the Court
of Tax Appeals division must be dismissed for failure to comply
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
with the procedure on appeal. It must be emphasized that an
appeal is neither a natural nor a constitutional right, but is
merely statutory. The implication of its statutory character is
that the party who intends to appeal must always comply with
the procedures and rules governing appeals; or else, the right
of appeal may be lost or squandered. Neither is the right to
appeal a component of due process. It is a mere statutory
privilege and may be exercised only in the manner prescribed
by, and in accordance with, the provisions of law
Review of judgments of the COMELEC
A judgment, resolution or final order of the COMELEC may be
brought by the aggrieved party to the SC on Certiorari under
Rule 65 by filing the petition within 30 days from notice. A
petition filed beyond said period is deemed filed out of time.
The above rule has been held not to be encompassing since
not all petitions for the review of judgments or final order of
these commissions should be filed under Rule 64.
Review of judgments of the Commission on Audit
A judgment, resolution or final order of the Commission on
Audit may be brought by the aggrieved party to the SC on
certiorari under Rule 65 by filing the petition within 30 days
from notice.
Appeals from judgments of the Civil Service
Commission
A judgment, final order or resolution of the Civil Service
Commission may be taken to the CA under Rule 43. Note the
difference between the mode of appeal from a judgment of
the CSC and the mode of appeal from the judgments of other
constitutional commissions.
Jurisprudence affirms that decisions and resolutions of the
COA are reviewable by the Supreme Court, not via an appeal
by certiorari under Rule 45, but through a special civil action
for certiorari under Rule 64 in relation to Rule 65 of the Rules
of Court.
However, in administrative disciplinary cases decided by the
COA, the proper remedy in case of an adverse decision is an
appeal to the Civil Service Commission and not a petition for
certiorari before this Court under Rule 64.
Summary
Review of To the Via Within
final orders
or final
judgment
from the
CSC CA Rule 43 15 days
COA SC Rule 65 30 days
COMELEC SC Rule 64 (65) 30 days
Appeals from judgments of the Office of the President
The judgments, resolutions or final orders of the Office of the
President may be taken to the Court of Appeals under Rule
43.
Review of the resolution of the Secretary of Justice;
rule for violations of tax and tariff laws
It has been held that courts cannot reverse the findings of the
Secretary of Justice except in clear cases of grave abuse of
discretion. The Court of Appeals is clothed with jurisdiction to
review the resolution issued by the Secretary of the DOJ
through a petition for certiorari under Rule 65 of the Rules of
Court, solely on the ground of grave abuse of discretion
amounting to lack of jurisdiction.
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The rule, that the CA has jurisdiction to review the resolution

of the DOJ through a petition for certiorari under Rule 65, does
not apply to tax and tariff offenses.

Appeal to the Office of the President from the decision

of the DOJ
While judicial pronouncements do not allow an appeal to the
CA under Rule 43 from the resolution of the Secretary of
Justice, the appeal referred to in such pronouncements
evidently pertains only to a judicial appeal.

An administrative appeal is not proscribed by the previously

cited jurisprudence. Memorandum Circular No. 58 dated June
30, 1993 provides that appeals from or petition for review of
“decisions/orders/ resolutions of the Secretary of Justice on
preliminary investigations of criminal cases are entertained by
the Office of the President” under the following conditions
which have to be established as jurisdictional facts:
a. The offense involved is punishable by reclusion perpetua
to death
b. New and material issues are raised which were not
previously presented before the Department of Justice
and were not hence, ruled upon
c. The prescription of the offense is not due to lapse within
six months from notice of the questioned resolution
d. The appeal or petition for review is filed within 30 days
from notice.

From the Office of the President, the aggrieved party may file
an appeal with the Court of Appeals pursuant to Rule 43.

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KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
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PROCEDURE IN THE COURT OF APPEALS
Rule 44 refers to the procedure in the CA for ordinary appeals
governed by Rule 41. So Rule 44 is actually related to Rule 41.
Rule 41 refers to appeal from the decision of the RTC to the
CA on ordinary actions or special proceedings; or actions that
were filed in the RTC as an original action.
RULE 44. ORDINARY APPEALED CASES
Title of Cases
Section 1. Title of cases. – In all cases appealed to the
Court of Appeals under Rule 41, the title of the case shall
remain as it was in the court of origin, but the party appealing
the case shall be further referred to as the appellant and the
adverse party as the appellee.
What are the procedures?
When you appeal the ruling of the RTC to the CA, and it
involves an ordinary civil action or a case that was originally
filed in the RTC, the title of the case shall remain.
Counsel and Guardians
Section 2. Counsel and guardians. – The counsel and
guardians ad litem of the parties in the court of origin shall be
respectively considered as their counsel and guardians ad
litem in the Court of Appeals. When others appear or are
appointed, notice thereof shall be served immediately on the
adverse party and filed with the court.
GR: Whoever appeals as counsel of a party of the appellant
or appellee, shall remain to be counsel on appeal.
XPN: Unless that lawyer notified the CA immediately that he
already ceased to become the counsel.
So, if there is no notice of a change of the lawyer, the CA has
the right to presume that whoever appeared for that party in
the RTC is also the lawyer of the case on appeal. So, all notices
will be sent to that lawyer.
Order of Transmittal of Record
Section 3. Order of transmittal of record. – If the original
record or the record on appeal is not transmitted to the Court
of Appeals within thirty (30) days after the perfection of the
appeal, either party may file a motion with the trial court, with
notice to the other, for the transmittal of such record or record
on appeal.
Steps in Filing an Appeal under Rule 41 (Secs. 4-13)
Section 4. Docketing of case. – Upon receiving the original
record or the record on appeal and the accompanying
documents and exhibits transmitted by the lower court, as well
as the proof of payment of the docket and other lawful fees,
the clerk of court of the Court of Appeals shall docket the case
and notify the parties thereof.
Within ten (10) days from receipt of said notice, the appellant,
in appeals by record on appeal, shall file with the clerk of court
seven (7) clearly legible copies of the approved record on
appeal, together with the proof of service of two (2) copies
thereof upon the appellee.
Any unauthorized alteration, omission or addition in the
approved record on appeal shall be a ground for dismissal of
the appeal.
Section 5. Completion of record. – Where the record of
the docketed case is incomplete, the clerk of court of the Court
of Appeals shall so inform said court and recommend to it
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
measures necessary to complete the record. It shall be the
duty of said court to take appropriate action towards the
completion of the record within the shortest possible time.
Section 6. Dispensing with complete record. – Where
the completion of the record could not be accomplished within
a sufficient period allotted for said purpose due to insuperable
or extremely difficult causes, the court, on its own motion or
on motion of any of the parties, may declare that the record
and its accompanying transcripts and exhibits so far available
are sufficient to decide the issues raised in the appeal, and
shall issue an order explaining the reasons for such
declaration.
Section 7. Appellant’s brief. – It shall be the duty of the
appellant to file with the court, within forty-five (45) days from
receipt of the notice of the clerk that all the evidence, oral and
documentary, are attached to the record, seven (7) copies of
his legibly typewritten, mimeographed or printed brief, with
proof of service of two (2) copies thereof upon the appellee.
Section 8. Appellee’s brief. – Within forty-five (45) days
from receipt of the appellant’s brief, the appellee shall file with
the court seven (7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of service of two
(2) copies thereof upon the appellant.
Section 9. Appellant’s reply brief. – Within twenty (20)
days from receipt of the appellee’s brief, the appellant may
file a reply brief answering points in the appellee’s brief not
covered in his main brief.
Section 10. Time for filing memoranda in special cases.
– In certiorari, prohibition, mandamus, quo warranto and
habeas corpus cases, the parties shall file, in lieu of briefs,
their respective memoranda within a non-extendible period of
thirty (30) days from receipt of the notice issued by the clerk
that all the evidence, oral and documentary, is already
attached to the record.
The failure of the appellant to file his memorandum within the
period therefor may be a ground for dismissal of the appeal.
Cases with Special Procedure for Appeal to CA:
1. Certiorari
2. Prohibition
3. Mandamus
4. Quo warranto
5. Habeas corpus
Section 11. Several appellants or appellees or several
counsel for each party. – Where there are several
appellants or appellees, each counsel representing one or
more but not all of them shall be served with only one copy
of the briefs. When several counsel represent one appellant
or appellee, copies of the brief may be served upon any of
them.
Section 12. Extension of time for filing briefs. –
Extension of time for the filing of briefs will not be allowed,
except for good and sufficient cause, and only if the motion
for extension is filed before the expiration of the time sought
to be extended.
Section 13. Contents of appellant’s brief. – The
appellant’s brief shall contain, in the order herein indicated,
the following:
(a) A subject index of the matter in the brief with a digest of
the arguments and page references, and a table of cases
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alphabetically arranged, textbooks and statutes cited with
references to the pages where they are cited;
(b) An assignment of errors intended to be urged, which errors
shall be separately, distinctly and concisely stated without
repetition and numbered consecutively;
(c) Under the heading “Statement of the Case,” a clear and
concise statement of the nature of the action, a summary of
the proceedings, the appealed rulings and orders of the court,
the nature of the judgment and any other matters necessary
to an understanding of the nature of the controversy, with
page references to the record;
(d) Under the heading “Statement of Facts,” a clear and
concise statement in a narrative form of the facts admitted by
both parties and of those in controversy, together with the
substance of the proof relating thereto in sufficient detail to
make it clearly intelligible, with page references to the record;
(e) A clear and concise statement of the issues of fact or law
to be submitted to the court for its judgment;
(f) Under the heading “Argument,” the appellant’s arguments
on each assignment of error with page references to the
record. The authorities relied upon shall be cited by the page
of the report at which the case begins and the page of the
report on which the citation is found;
(g) Under the heading “Relief,” a specification of the order or
judgment which the appellant seeks; and
(h) In cases not brought up by record on appeal, the
appellant’s brief shall contain, as an appendix, a copy of the
judgment or final order appealed from.
Subject Index
Will contain where you will find the sub-topics, in what page
you can find it in the appellant’s brief
Assignment of errors
The first part of the appellant’s brief after the subject index is
the assignment of errors, where you enumerate what are the
errors committed by the RTC which you want the CA to look
into and examine.
Statement of the Case
Then you make a statement of the case. Very brief. In just
one paragraph, what is the case all about? So that the justices
of the CA who will review it will immediately know what is the
case all about.
Statement of Facts
This is where you start telling the story. How this controversy
started, until you filed a case, until the court conducted a
hearing, until the court rendered judgment.
Statement of Issues
So, you narrate the facts of the case and after you have
narrated the facts of the case from your own point of view,
you state what are the issues that you want the appellate
court to resolve.
Arguments
And then, you start your discussion and arguments. You start
to discuss these issues and you arguments in support of your
contention that the trial court has committed an error in trying
the case.
Relief
And at the end, what is the relief you are asking for. What are
you asking the appellate court
Rules
GR: Only errors specifically assigned and properly argued in
the brief shall be considered by the court.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
XPNS:
e. Errors affecting jurisdiction
f. Plain and clerical errors
g. Unassigned errors closely related to or dependent upon
an assigned error, and which is properly argued in the
brief
Section 14. Contents of appellee’s brief. – The appellee’s
brief shall contain, in the order herein indicated, the following:
(a) A subject index of the matter in the brief with a digest of
the arguments and page references, and a table of cases
alphabetically arranged, textbooks and statutes cited with
references to the pages where they are cited;
(b) Under the heading “Statement of Facts,” the appellee shall
state that he accepts the statement of facts in the appellant’s
brief, or under the heading “Counter-Statement of Facts,” he
shall point out such insufficiencies or inaccuracies as he
believes exist in the appellant’s statement of facts with
references to the pages of the record in support thereof, but
without repetition of matters in the appellant’s statement of
facts; and
(c) Under the heading “Argument,” the appellee shall set forth
his arguments in the case on each assignment of error with
page references to the record. The authorities relied on shall
be cited by the page of the report at which the case begins
and the page of the report on which the citation is found.
Note: An appellee who has not appealed cannot make
assignment of errors in his brief.
What is the effect of the failure of the appellant to file
his appellant’s brief?
It will lead to the dismissal of the appeal.
Now, what about if it is the appellee who did not file
the appellee’s brief?
It will not affect the appellee because the filing of the
appellee’s brief is not mandatory. It is optional for the
appellee. But for the appellant, that is mandatory for him.
If the appellee did not file his appellee’s brief, it simply means
that he concurs with the decision of the RTC, that there’s
nothing wrong with the decision of the RTC.
What is a brief? What is its purpose?
The word “BRIEF” is derived from the Latin word “BREVIS”
[AND BRUTTHEAD] and the French word “BREFIE”, and
literally means a short or condensed statement. Its purpose is
to present to the court in concise form the points and
questions in controversy, and by fair argument on the facts
and law of the case, to assist the court to arrive at a just and
fair conclusion. It should be prepared as to minimize the labor
of the court in the examination of the record upon which the
appeal is heard.
Is the 45-day period to file extendible?
Yes, that is Section 12.
When do you file the motion for extension of time to
file brief?
The motion for extension of time is filed BEFORE the
expiration of the time sought to be extended. (Section 12)
BUT sometimes the SC can be liberal about extension.
Ordinary Civil Actions: Notice of Appeal
Now, upon receipt of the records, the clerk of court of the CA
must immediately notify the parties, or approved records on
appeal must be filed within 10 days.
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Now, what are the steps here when the RTC decides the case
and it is an ordinary civil action?
You are not happy? Just file a notice of appeal. One
paragraph. You file it with the RTC, and you pay the docket
fees. You don’t present your arguments yet why the RTC is
wrong, and why the ruling of the RTC must be reversed by
the CA. Nothing yet. Nothing. Just a notice of appeal.
But if it’s a special proceeding, you file now a notice of appeal
AND a record on appeal. Now, a record on appeal, as I’ve
already explained to you, will present in chronological order
all the pleadings, orders (interlocutory orders or judgments of
the court which are not yet final), AND you also discuss there
the errors committed by the court. So, it’s just like a petition
for review. (Cont’d. in Sec. 5.)
Note: You may raise any question of law or fact that has been
raised in the court below. He cannot, for the first time on
appeal, say something which was not raised in the trial court.
Another thing is, he cannot change his theory on appeal,
either theory on the cause of action or theory on the defense.
Is the appellee required to make assignment of errors?
The APPELLEE is not required to make assignment of errors,
except when his purpose is to seek affirmation of the
judgment on other grounds or reasons not stated in the
decision.
If the appellee seeks modification of the judgment, is
it enough for him to make assignment of errors?
In such a case, the appellee must appeal; an assignment of
error is not enough.

Now, when you file a notice of appeal, the clerk of court of GR: If you are the winning party, you may appeal the decision
the RTC will immediately complete the records and submit the if you think you are entitled for more. So, you must appeal.
records with the CA. So, the CA will direct the RTC to You cannot just state of errors in the appellee’s brief.
immediately forward the records, and the clerk of court of the XPN: You may state assignment of errors to support the
CA will examine if the records are already complete. decision – to support, not to change, the decision. If you want
to change the decision, you appeal (general rule).
Once it is already complete, then the CA will notify both
parties- the appellant and the appellee- that: When may the CA act as a trial court?
1. The records are already with the CA, and 1. In annulment of judgments
2. The appellant will now be ordered to file his appellant’s 2. When a motion for new trial is granted by the Court of
brief within 45 days from receipt of the order of the CA Appeals
3. A petition for Habeas Corpus shall be set for hearing
And when the appellant will file the appellant’s brief with the 4. To resolve factual issues in cases within its original and
CA, he he must furnish a copy of it to the appellee. And the
appellate jurisdiction
appellee is also given the same period of 45 days to file his
5. In cases of new trial based on newly discovered evidence
appellee’s brief.
6. In cases involving claims for damages arising from
So, in an ordinary appeal under Rule 41, if you are the provisional remedies
appellant, you have so much time to prepare your arguments 7. In amparo proceedings
before the CA why the RTC has committed an error, and why
the decision of the RTC must be changed. You have enough
time because (1) you still have to wait for the CA to order you
to file your appellant’s brief, and (2) you still have 45 days
after the order. You can even ask for an extension to file your
appellant’s brief, and you will be given another 45 days. So
maabot nakag 90 days preparing your appellant’s brief.

Special Proceedings: Notice of Appeal + Record on Appeal

Now, if the appeal is not by mere notice of appeal but also by
record on appeal, the clerk of court of the CA must notify the
RTC to forward now the records on appeal to the CA.

So, the records on appeal that were already approved by the

RTC will be forwarded to the CA for proper review.

Summary
RTC CA
1. Decision 1. Docketing of cases
2. Notice of appeal/ 2. Appellant’s brief
records on appeal 3. Appellee’s brief
3. Completion of records 4. Reply brief
4. Transmittal 5. Memorandum in lieu of
brief

Section 15. Questions that may be raised on appeal. –

Whether or not the appellant has filed a motion for new trial
court below, he may include in his assignment of errors any
question of law or fact that has been raised in the court below
and which is within the issues framed by the parties.

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RULE 45. APPEAL BY CERTIORARI TO THE SUPREME
COURT
Judge Q: This shall not be mistaken as petition for certiorari
under rule 65. Rule 65 can be availed of by interlocutory
orders or orders of the court where there is no appropriate
remedy so Rule 65 is a catch all rule where party has no
adequate or speedy remedy and the ground is grave abuse of
discretion just like what will happen in cases covered under
rule 45.
Appeal by certiorari under Rule 45 is not exclusive to decisions
from the RTC. Appeal by certiorari is available also to
judgments, final orders of the CA. If you notice, title is appeal
to SC, not only judgment by the lower court.
Appeal by Certiorari to the Supreme Court
Section 1. Filing of petition with Supreme Court. – A
party desiring to appeal by certiorari from a judgment, final
order or resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial
Court or other courts, whenever authorized by law, may file
with the Supreme Court a verified petition for review on
certiorari. The petition may include an application for a writ of
preliminary injunction or other provisional remedies and shall
raise only questions of law which must be distinctly set forth.
The petitioner may seek the same provisional remedies by
verified motion filed in the same action or proceeding at any
time during its pendency. (As amended by A.M. No. 07-7-12-
SC, December 12, 2007.)
Judge Q: Appeal to the SC on pure questions of law,
appropriate remedy is appeal by certiorari under Rule 45; only
applies to judgments or final orders of RTC in the exercise of
its original jurisdiction so if decision is in exercise of its
appellate jurisdiction then Rule 45 is not the appropriate
remedy.
When the decision is rendered by the RTC in the exercise of
its appellate jurisdiction, whether the appellant raises only
questions of fact, the appeal shall be brought to the CA by
filing a petition for review under rule 42 and even if only a
question of law is raised. So if the appeal is a pure question
of law and in the exercise of original jurisdiction of the RTC,
under Rule 45.
Appeal from the judgment, final order or resolution of the CA
where the petition shall raise only question of law distinctly
set forth, the fling of a petition for certiorari under Rule 65 is
availing of an improper remedy, the petition should merit an
outright dismissal. That's also a special provision for rule 45.
It may include a writ of preliminary injunction or other
provisional remedies. Under the rules on provisional remedies,
the party, usually the complaining party will avail of certain
remedies while the case is still pending. We have attachment
or injunction, the same is available even under Rule 45 by
special provision of section 1.
Note: This is the only mode of appeal from the decision of the
CA, SB, RTC, or other courts to the SC. If the RTC is in exercise
of its appellate jurisdiction, proper remedy is to appeal to the
CA via Rule 42 even if only questions of law are raised.
Scope
1. Decisions of the CA, CTA, Sandiganbayan and RTC
Question of Law
Only question of law may be raised to the Supreme Court,
Except in Writs of:
a. Amparo
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
b. Habeas corpus
c. Kalikasan
When does a question of law exist?
A question of law exists when there is a doubt/controversy as
to what the law is on a certain state of facts. If the test is
whether the appellate court can determine the issue raised
without reviewing or evaluation the evidence, it is a question
of law.
Question of Law v Question of Fact
1. Question of Fact- When the issue involves a
determination of whether or not the facts as alleged by a
particular party is true or not. It involves the calibration
of the evidence presented by the parties to the case.
Normally, the parties will differ in their interpretation of
what are the true facts in the case. So the court will
determine what really are the facts. The court will require
the parties to present evidence in support of their
respective claims.
2. Question of Law- When the fact is already determined by
the court and the court will now decide what law to apply,
or after knowing what law to apply the court gives its
interpretation. If you question the decision of the court
based on a fact, that is already a matter of question of
law because you are questioning whether the law
applicable to the case was correctly applied by the court.
The test of whether a question is one of law or one of fact is
whether the appellate court can determine the issue raised
without reviewing or evaluating the evidence. If so, it is a
question of law; otherwise, it is a question of fact. Once it is
clear that the issue invites a review of the evidence presented,
the question posed is one of fact. If the appellate court can
determine the issue raised without reviewing or evaluating the
evidence, it is a question of law.
Factual-issue bar- Rule
The rule that only questions of law shall be raised in a Rule 45
petition, has been referred to as the Factual-Issue-Bar-Rule.
The above rule is predicated on the principle that the Supreme
Court is not a trier of facts; only errors of law are generally
reviewable in a petition for review on certiorari.
A Rule 45 petition is limited to questions of law since factual
findings of the lower courts are, as a rule, conclusive on the
Supreme Court. In other words, in a Rule 45 petition, the
scope of the Supreme Court’s judicial review is confined only
to errors of law and does not extend to questions of fact.
The rule further means that factual findings of the lower
courts will generally not be disturbed since it is not the Court’s
function to once again analyze and calibrate evidence that has
already been considered in the lower courts. Hence, a petition
which asks the Supreme Court to review the factual
determination of the Court of Appeals, is not appropriate
under Rule 45 since it is not a trier of facts and is not to review
the evidence on record.
Note: The question of a tenancy relationship is a question of
fact which cannot be raised in a Rule 45 petition.
Examples of issues of facts which cannot be raised under Rule
45
1. The issue of whether or not probable cause exists in the
issuance of a warrant of arrest
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2. A petition seeking the review of the award of damages Rule 45 Rule 65
involves a question of fact and cannot, as a rule, be Question of law Grave abuse of discretion
reviewed in a Rule 45 petition Mode of appeal Original action and is
3. A petition, where the issue presented to the Court is the (continuation). Review directed on interlocutory
correctness of the lower court’s appreciation of the judgments on the merit orders
evidence, cannot be raised in a Rule 45 petition, since the Must be made within Must be filed not later than
issue is one of fact. reglementary period to 60 days from notice of
4. The issue of whether or not a mortgagee was in good appeal judgment
faith is a question of fact and cannot be entertained in a Appeal stays judgment, Does not stay judgment
Rule 45 petition award or order appealed unless a TRO is issued by
5. A request in a Rule 45 petition for the Court to re-examine from the court
the testimony of a witness in the transcript of Petition and respondent are Aggrieved party against the
stenographic notes concerning his alleged testimonial the original parties. Lower lower court or quasi-judicial
proof of damages court judge not to be agency and the prevailing
6. Whether one is entitled to moral and exemplary damages impleaded party
7. Whether a person acted with good faith or bad faith in Prior filing of a motion for Filing of a motion for
purchasing and registering real property reconsideration not required reconsideration is a
8. Whether the deed of sale entered into by the parties is a condition precedent
simulated contract Appellate court is in the Higher court exercises its
9. An assertion that no tenancy relationship existed between exercise of its appellate original jurisdiction and
the parties is a question of fact jurisdiction and power of power of control and
10. Determination of whether or not there exists a perfected review supervision over lower court
contract of sale
11. Determination of whether or not a worker abandoned his Judge Q: Another distinction is certiorari may be filed before
work the CA and SC because they have concurrent jurisdiction
12. Whether or not there was delay by one party in the (doctrine of hierarchy of courts) but in case of Rule 45, only
performance of his obligations in SC. Under Rule 45, subject of appeal is to review final
judgment or final orders while in Rule 65, it is directed towards
Referral to the CA an interlocutory order--orders that do not dispose of the main
If a Rule 45 appeal, which raises a question of fact, is taken case--so that is the remedy for parties aggrieved of the ruling
to the Supreme Court from the RTC, the appeal may be denied
of the court. Another important distinction is Rule 45 stays the
by the Court on its own initiative because of the settled rule judgment appealed from. Usually practice of trial lawyers is to
that only questions of law may be entertained in a petition for include a relief for injunction under Rule 65 especially if it
review on certiorari. involves significant or substantial amounts of money and to
prevent further injury of the parties with the continuation of
The Court, however, instead of denying the appeal, has the proceedings and since they are the one who claims, then
another option. It may refer the appeal to the Court of they must establish a right in esse--a right that is obvious but
Appeals. more often than not in practice, the CA rarely grants TRO or
injunctions under rule 65. It's very rare.
Appeals in criminal cases
In criminal cases, the Supreme Court in a petition for review Party cannot simultaneously file
on certiorari under Rule 45 may deal with questions of fact. As a rule, a party cannot simultaneously file a petition both
The rule, that only questions of law may be raised in a Rule under Rules 45 and 65 of the Rules of Court because said
45 petition in an appeal of a criminal conviction before the procedural rules pertain to different remedies and have
Supreme Court, is not controlling. This is because the appeal distinct applications. The remedy of appeal under Rule 45 and
opens the entire records of the criminal case for review. The an original action for certiorari under Rule 65 are mutually
implication is that the Court is not limited to reviewing exclusive, and not alternative or cumulative. Thus, a party
questions of law. In its review of the case, the Court may even should not join both petitions in one pleading. When a party
examine any error even if not assigned by the accused. This adopts an improper remedy, his petition may be dismissed
error may include errors of fact. outright.
Where questions of fact may be raised However, the Court may set aside technicality for justifiable
Appeals from the final order of a writ of amparo, habeas data reasons.
and writ of kalikasan may raise questions of fact, law, or both
GR: Only questions of law may be raised in petitions filed
Certiorari under Rule 45 is different from Rule 65 under Rule 45.
XPNS:
Judge Q: This is the common mistake by practitioners and a. When the findings are grounded entirely on speculation,
judges considering that petitioners for review for certiorari is surmises or conjectures
totally different from Rule 65. The confusion is understandable b. When the inference made is manifestly mistaken, absurd
considering both modes are initiated by a petition. There are or impossible
several distinctions. One thing I pointed out last time, under c. When there is grave abuse of discretion
Rule 45, no need for a party to file a MR. However, under Rule d. When the judgment is based on a misapprehension of
65, it is a requirement because failure to file a MR would be
facts
fatal to the particular special civil action because it is e. When the findings of facts are conflicting
jurisdictional. It is however the option of the losing party to f. When in making its findings the Court of Appeals went
avail of this relief. beyond the issues of the case, or its findings are contrary
to the admissions of both the appellant and the appellee

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g. When the findings are contrary to the trial court
h. When the findings are conclusions without citation of
specific evidence on which they are based
i. when the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the
respondent
j. when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on
record
k. when the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which if
properly considered, would justify a different conclusion
l. appeal from the judgment or final order in a petition for
writ of amparo
m. appeal from the judgment or final order in a petition for
habeas date
n. appeal from the judgment or final order in a petition for
writ of kalikasan
Once the Court rules that the issues involved are questions of
fact, then it can no longer be appealed.
When a Rule 65 petition is treated as a Rule 45 petition
The rule is that the filing of a special civil action for certiorari
under Rule 65, when the proper remedy should have been to
file a petition for review on certiorari under Rule 45, merits
the outright dismissal of the petition.
On several occasions, however, the Court has treated a
petition for certiorari as a petition for review on certiorari
when:
a. The petition has been filed within the 15-day
reglementary period
b. Public welfare and the advancement of public policy
dictate such treatment
c. The broader interests of justice require such treatment
d. The writs issued were null and void
e. The questioned decision or order amounts to an
oppressive exercise of judicial authority
When appellate court can waive the proper assignment of
errors to consider errors not assigned:
a. Grounds not assigned as errors but affecting jurisdiction
over the subject matter
b. Matters not assigned as errors on appeal but are evidently
plain or clerical errors within contemplation of law
c. Matters not assigned as errors on appeal but
consideration of which is necessary in arriving at a just
decision and complete resolution of the case or to serve
the interests of justice or to avoid dispensing peacemeal
justice
d. Matters not specifically assigned as errors on appeal but
raised in the trial court and are matters of record having
some bearing on the issue submitted which the parties
failed to raise or which the lower court ignored
e. Matters not assigned as errors on appeal but closely
related to an error assigned
f. Matters not assigned as errors on appeal but upon which
the determination of a question properly assigned, is
dependent
Time for filing
Section 2. Time for filing; extension. – The petition shall
be filed within fifteen (15) days from notice of the judgment
or final order or resolution appealed from, or of the denial of
the petitioner’s motion for new trial or reconsideration filed in
due time after notice of the judgment. On motion duly filed
and served, with full payment of the docket and other lawful
fees and the deposit for costs before the expiration of the
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
reglementary period, the Supreme Court may for justifiable
reasons grant an extension of thirty (30) days only within
which to file the petition.
Time to file
1. Within 15 days from receipt of the judgment appealed
from or from denial of motion for reconsideration or new
trial
2. Motion for extension may be granted only for 30 days
Note: The Neypes doctrine is also applicable to Rule 45
petitions.
Judge Q: Is a motion for extension of time to file petition
allowed under the rules? Section 2 says that for justifiable
reasons, the court can allow an extension for thirty days. More
importantly, that the motion is filed and served and the
payment of the docket fee within the 15-day period. The rule
says once you file a motion for extension, the SC, if based on
meritorious ground, can grant 30 days extension.
If you compare this under Rule 42, the same period and the
court may allow an additional period of 15 days of extension
but in the case of Rule 45, extension is allowed for 30 days
but in Rule 43, only period of 15 days but the same period
within which to file within 15 days from notice of decision. You
just make the comparison.
Payment of Docket Fee and Cost
Section 3. Docket and other lawful fees; proof of
service of petition. – Unless he has theretofore done so, the
petitioner shall pay the corresponding docket and other lawful
fees to the clerk of court of the Supreme Court and deposit
the amount of P500.00 for costs at the time of the filing of the
petition. Proof of service of a copy thereof on the lower court
concerned and on the adverse party shall be submitted
together with the petition.
Note: Pay with docket fee with the Supreme Court and with
proof of service on the other party and the court.
Contents of Petition
Section 4. Contents of petition. – The petition shall be
filed in eighteen (18) copies, with the original copy intended
for the court being indicated as such by the petitioner, and
shall (a) state the full name of the appealing party as the
petitioner and the adverse party as respondent, without
impleading the lower courts or judges thereof either as
petitioners or respondents; (b) indicate the material dates
showing when notice of the judgment or final order or
resolution subject thereof was received, when a motion for
new trial or reconsideration, if any, was filed and when notice
of the denial thereof was received; (c) set forth concisely a
statement of the matters involved, and the reasons or
arguments relied on for the allowance of the petition; (d) be
accompanied by a clearly legible duplicate original, or a
certified true copy of the judgment or final order or resolution
certified by the clerk of court of the court a quo and the
requisite number of plain copies thereof, and such material
portions of the record as would support the petition; and (e)
contain a sworn certification against forum shopping as
provided in the last paragraph of section 2, Rule 42.
Contents
1. Full name of the parties
2. Indicate material dates
3. Set forth concisely a statement of the matters involved,
and the arguments in support of the petition
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4. Accompanied by original or certified true copy of the
judgment
5. Certification of non-forum shopping
Dismissal or denial of petition
Section 5. Dismissal or denial of petition. – The failure
of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other
lawful fees, deposit for costs, proof of service of the petition,
and the contents of and the documents which should
accompany the petition shall be sufficient ground for the
dismissal thereof.
The Supreme Court may on its own initiative deny the petition
on the ground that the appeal is without merit, or is
prosecuted manifestly for delay, or that the questions raised
therein are too unsubstantial to require consideration.
Grounds for dismissal
1. Failure to comply with the requirement regarding
payment of docket fee and other lawful fees, and deposit
for cost.
2. Failure to show proof of service
3. Failure to observe contents of petition and the documents
(at least the certified true copies or the duplicate copies)
that must accompany it
Additional Grounds
1. Appeal is without merit
2. Prosecuted manifestly for delay
3. Question is too unsubstantial
Review is discretionary
Section 6. Review discretionary. – A review is not a
matter of right, but of sound judicial discretion, and will be
granted only when there are special and important reasons
therefor. The following, while neither controlling nor fully
measuring the court’s discretion, indicate the character of the
reasons which will be considered:
(a) When the court a quo has decided a question of substance,
not theretofore determined by the Supreme Court, or has
decided it in a way probably not in accord with law or with the
applicable decisions of the Supreme Court; or
(b) When the court a quo has so far departed from the
accepted and usual course of judicial proceedings, or so far
sanctioned such departure by a lower court, as to call for an
exercise of the power of supervision.
Note: A review is not a matter of right, but of sound judicial
discretion, and will be granted only when there are special
important reasons therefore.
Reasons for the court to grant the petition
1. When the court a quo has decided a question of
substance, not theretofore determined by the Supreme
Court, or has decided it in a way not in accord with the
law
2. When the court a quo has so far departed from the
accepted and usual course of judicial proceeding as to call
for an exercise of the power of supervision
The court can outrightly dismiss your petition for certiorari
under Rule 45 in one sentence. We call that minute resolution.
Judge Q: In other words, every appeal is not a matter of right
but of sound judicial discretion so that is a basis of the court
exercising its jurisdiction whether to allow the subject petition
or not.
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
GR: A decision of a court must contain a discussion on how
the court arrived on the conclusion. There should be findings
of fact and a conclusion of law.
XPN: The Supreme Court, being the highest court of the land,
can outright dismiss a petition by way of a minute resolution.
When the Court does this, it means that the SC affirms the
decision of the lower court.
Pleadings and other documents; sanction
Section 7. Pleadings and documents that may be
required; sanctions. – For purposes of determining whether
the petition should be dismissed or denied pursuant to section
5 of this Rule, or where the petition is given due course under
section 8 hereof, the Supreme Court may require or allow the
filing of such pleadings, briefs, memoranda or documents as
it may deem necessary within such periods and under such
conditions as it may consider appropriate, and impose the
corresponding sanctions in case of non-filing or unauthorized
filing of such pleadings and documents or non-compliance
with the conditions therefor.
Sanction
A REPLY is not mandatory but the Supreme Court may require
or allow the petitioner to file a reply. For example, you file a
petition or appeal by certiorari to the SC questioning the ruling
of the CA. The SC gave due course to your petition and
required the respondent to give his comment or answer. After
that, the SC may require petitioner to file a reply to the
comment. If you don’t file a reply, it would not result to the
dismissal of the petition because a reply is not mandatory BUT
if it is the SC who ordered you to file a reply and you did not
obey, it would lead to the dismissal of your appeal by
certiorari. This is the sanction.
Due Course; Elevation of Records
Section 8. Due course; elevation of records. – If the
petition is given due course, the Supreme Court may require
the elevation of the complete record of the case or specified
parts thereof within fifteen (15) days from notice.
Note: If the court finds that indeed there are prima facie
evidence of error committed by the court a quo, the SC will
give due course to your petition. It will issue an order giving
due course to your petition and thereafter order the CA to
elevate all your records to the SC for appropriate review.
Like Rule 42, the giving of due course to your petition does
not mean that it is granted. It simply means that the appellate
court finds sufficient basis for them to exercise the power of
judicial review.
In real life, it is really difficult to have your petition entertained
by the SC. In the COC’s office alone, there is already a
screening committee who will examine the petitions for
certiorari. If a petition does not comply with the requirements
under the law, it is outrightly dismissed.
Rule applicable to both Civil and Criminal Cases
Section 9. Rule applicable to both civil and criminal
cases. – The mode of appeal prescribed in this Rule shall be
applicable to both civil and criminal cases, except in criminal
cases where the penalty imposed is death, reclusion perpetua
or life imprisonment.
Bar Q: May the aggrieved party file a petition for certiorari to
the Supreme Court under Rule 65 instead of filing petition for
review on certiorari under Rule 45 for the nullification of a
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decision of the Court of Appeals in the exercise either of its
original or appellate jurisdiction? Explain.
The remedy to nullify a decision of the Court of Appeals is a
petition for review on certiorari in the Supreme Court under
Rule 45 instead of a petition for certiorari under Rule 65,
except in certain exceptional circumstances such as where
appeal is inadequate. By settled jurisprudence, certiorari is not
a substitute for lost appeal.

Bar Q: Explain certiorari: As a mode of appeal from the

Regional Trial Court or the Court of Appeals to the Supreme
Court. (2.5%)
Certiorari as a mode of appeal is governed by Rule 45 which
allows appeal from judgment, final order of resolution of the
Court of Appeals, Sandiganbayan, the RTC or other courts to
the Supreme Court via verified petition for review whenever
authorized by law raising only questions of law distinctly set
forth.

213
KGM | EH 302 | 2020-2021 Sources: Riano, GST, Brabante, Judge Q’s lectures, Atty G’s T, Other notes from higher years
Civpro | Premid Notes

214
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Civpro | Premid Notes
RULE 38. RELIEF FROM JUDGMENTS, ORDERS, OR who was never a party to the case, or even summoned to
OTHER PROCEEDINGS appear therein, cannot avail of a petition for relief from
Relief from judgment, more popularly known as petition for judgment.
relief, is a remedy provided by law to any person against
whom a decision or order is entered through fraud, accident, Judge Q: Always remember that this remedy is only available
mistake, or excusable negligence. This remedy is equitable in to the parties.
character, allowed only in exceptional cases when there is no
other available or adequate remedy provided by law or by the Petition for Relief from Judgment, Order or Other
rules. Proceedings
Section 1. Petition for relief from judgment, order, or
When a party has another remedy available to him, which may other proceedings. – When a judgment or final order is
be either a motion for new trial or appeal from an adverse entered, or any other proceeding is thereafter taken against a
decision of the trial court, and he was not prevented by fraud, party in any court through fraud, accident, mistake, or
accident, mistake or excusable negligence from filing such excusable negligence, he may file a petition in such court and
motion or taking such appeal, he cannot avail himself of a
in the same case praying that the judgment, order or
petition for relief.
proceeding be set aside.
Judge Q: If you compare this to a party who has defaulted,
this ground is also similar to the ground for filing a motion to Petition is available to proceedings after the judgment
set aside an order of default so if you compare the ground for A petition for relief is available not only against a judgment or
order of setting aside an order of default as well as the motion final order. Under Sec. 1 of Rule 38, it is also available when
for new trial and petition for relief, they have the same “any other proceeding is thereafter, taken against the
grounds but they are different in a sense that it can only be petitioner in any court through fraud, accident, mistake, or
availed in different stages in the proceedings. excusable negligence”. Thus, it was held that a petition for
relief is also applicable to a proceeding taken after the entry
Grounds of judgment or final order such as an order of execution.
1. When a judgment or final order is entered, or any other
proceeding is thereafter taken against the petitioner in Petition for Relief from Judgment: FAME
any court through FAME
If there is already a final judgment of the court or the
2. When the petitioner has been prevented from taking an
judgment has already become final, your remedy now – if you
appeal by FAME
were deprived of your day in court because of fraud, accident,
MNT (Rule 37) v Petition from Relief (Rule 38) mistake or excusable negligence (FAME) – your remedy now
is to file a petition for relief from judgment, where you ask the
Motion for New Trial Petition from Relief court to set aside that judgment and allow you to present your
Available before the Available after the judgment evidence.
judgment becomes final and becomes final and
executory executory Now, actually, petition for relief from judgment is your
Applies to judgments and Applies to other penultimate remedy, second to the last remedy under the
final orders only proceedings Rules if you were deprived of your day in court.
Grounds are FAME and Grounded on FAME
newly discovered evidence First Remedy
Filed within the time to Should be filed within 60 You recall that the first remedy is a motion to lift the order of
appeal days from knowledge of the default. When a complaint was filed, and you were not able
judgment and within 6 to answer the complaint for which reason you were declared
months from entry of
in default, what is your remedy? You can ask the court to set
judgment
aside the order of default – that is if the court has not yet
If denied, order is not If denied, the order denying
appealable, hence, remedy a petition for relief is also rendered a decision. That is before judgment, while the case
is appeal from judgment not appealable but the is still pending in court. You ask the court to set aside the
appropriate remedy is the order declaring you in default, and that you be allowed to file
appropriate civil action your answer and present your evidence. The reason is FAME.
under Rule 65 It’s because of fraud, accident, mistake or excusable
Legal remedy Equitable remedy negligence, you were not able to answer.
Need not be verified Must be verified
Second Remedy
A party who has filed a motion for new trial, but which was Now, but if there is already a decision, you still have a remedy.
denied, cannot file a petition for relief. These two remedies The second remedy is a motion for new trial. You can avail of
are said to be exclusive of each other. It is when a party this after a judgment has already been rendered, but the
aggrieved by a judgment has not been able to file a motion judgment has not yet come final. In other words, the second
for new trial that a petition for relief can be filed. remedy of new trial is a remedy you can avail during the
reglementary period to appeal, which is fifteen (15) days.
Petition is only available to the parties
Within that period, you may file a motion for new trial.
A petition for relief from judgment together with a motion for
new trial and a motion for reconsideration are remedies
available only to parties in the proceedings where the assailed Third Remedy
judgment is rendered. In fact, it has been held that a person
215
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Civpro | Premid Notes
Now, if the judgment has already become final and executory
– meaning, the 15-day period to file an appeal has already
expired – you still have a remedy. And what is your third
remedy? Rule 38, which is petition for relief from judgment.
Here you ask the court to set aside the judgment, and that
you be allowed to file your answer and present your evidence
because the reason why you were not able to file your answer
and to present evidence is because of FAME: fraud, accident,
mistake and excusable negligence.
Fraud, Accident, Mistake and Excusable Negligence
Fraud, Example
Summons was actually served on you by substituted service
because you cannot be located. It is a valid service, diba?
Now, the one who received the summons, who is your maid,
was approached by a representative of the plaintiff. She was
given a big amount of money to keep the summons and the
complaint so that you will not know about it. So, there was
fraud committed by the plaintiff in order to prevent you from
answering and participating in the trial.
Accident, Example
The summons was served through your secretary in your
office because you were not served personally; when the
sheriff attempted to serve it to you personally, you were not
around. So, the sheriff resorted to substituted service. It was
given to your secretary.
Is that a valid service? Yes, a valid substituted service.
Now, the secretary received the summons, placed it in her
drawer but when the secretary returned at the end of the day
to her home, she met an accident, and she died. So, she never
had the opportunity to show the complaint to you until the
period to answer expired, and until the court had rendered
judgment.
Now, it was only later on that you learned about the summons
and the complaint when they started to clean the table of your
secretary. They discovered the complaint. Now, there was no
ill-motive on the part of your secretary. It was really by
accident that the summons was not delivered to you.
Now, what is your remedy? Your remedy is:
1) Motion to lift order of default if there is yet no judgment;
or
2) If there is already a judgment, but it has not yet become
final: your remedy is a motion for new trial; or
3) If the judgment is already final and executory, your third
remedy is petition for relief from judgment.
Fourth Remedy
Do you still have a remedy if you could no longer file a petition
for relief from judgment because the period to file one has
already expired? The answer is yes. And your fourth remedy
is found in Rule 47, Annulment of Judgment of the RTC. And
this time, you have to file it with the CA.
Summary of Remedies
Stage of the Case Remedy
Bayocboc notes as amended by KGM
There is no judgment yet Motion to lift order of
default
There is already a Motion for new trial
judgment, but it is not yet • File during
final reglementary period to
appeal
• Grounds: FAME
There is already a Petition for relief from
judgment, and it has judgment
already become final and
executory
Failure to file a petition for Annulment of judgment or
relief of judgment final orders
Now, in the case of petition for relief from judgment,
where will you file your petition?
You will file it in the very same court which rendered the
judgment. Thus, petition for relief from a judgment, final
order or proceeding involved in a case tried by a municipal
court shall be filed in and decided by the same court in the
same case, or in the Regional Trial Court if the case was
decided by it.
Judge Q: This is not an independent action but merely a
continuation of the old case.
Petition for Relief from Denial of Appeal
Section 2. Petition for relief from denial of appeal. –
When a judgment or final order is rendered by any court in a
case, and a party thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented from taking an
appeal, he may file a petition in such court and in the same
case praying that the appeal be given due course.
Note: The remedy of petition for relief is not only limited to
judgments but the law says “orders, or other proceedings.”
That is very broad.
Example: I lost the case and I filed an appeal and the appeal
was beyond 15 days. So, there will be an order denying my
appeal because my appeal should be within 15 days.
Judge Q: What happens if he receives an adverse judgment?
File a notice of appeal in ordinary civil cases, not to the
appellate court but to the court where the case was decided.
Section 2 talks about this second situation- when the appeal
is denied- so the remedy for petition for relief is not limited to
judgment but the law says orders or other proceedings. So
Section 2 talks about an order denying your appeal. That could
also be the subject of a petition for relief.
And suppose such order prevented me from taking an
appeal because of FAME, can I file a petition for relief?
Yes, not from the judgment but from the order denying my
appeal on the ground of FAME. And the court will grant me
relief by allowing me to appeal. So there, I am not questioning
the judgment but I am only questioning the order not allowing
me to appeal.
Note: Under Section 2, you have had your day in court but
you were not able to file your appeal within the reglementary
period of 15 days because of FAME.
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Civpro | Premid Notes
Time for Filing Petitions
Section 3. Time for filing petition; contents and
verification. – A petition provided for in either of the
preceding sections of this Rule must be verified, filed within
sixty (60) days after the petitioner learns of the judgment,
final order, or other proceeding to be set aside, and not more
than six (6) months after such judgment or final order was
entered, or such proceeding was taken; and must be
accompanied with affidavits showing the fraud, accident,
mistake, or excusable negligence relied upon, and the facts
constituting the petitioner’s good and substantial cause of
action or defense, as the case may be.
Judge Q: When should you make your petition for relief?
Remember that a petition is filed in the same court which
rendered the decision.
For instance, a judgment was issued on December 2020. You
have within 6 months to file a petition for relief from judgment
so until when? You have until June to file a petition from relief
of judgment. However, if you learned of the judgment, let's
say January 2021, the decision was issued in December, you
received notice on January 2021. Can you still file on June
2021? That is not allowed since the law says it should be
within 60 days. So when you received a notice, you only have
until April 2021 to file your petition. So you must take note of
these 2 periods so your petition from relief is compliant of this
section.
When can you file your petition for relief from
judgment?
Your petition from relief for judgment must be filed within
60 days after the petitioner- after you learn of the judgment,
final order, or other proceeding to be set aside, and not more
than 6 months after such judgment or order was entered.
The double period required under Section 3, Rule 38 is
jurisdictional and should be strictly complied with. Strict
compliance with these periods stems from the equitable
character and nature of petition for relief. A petition for relief
of judgment filed beyond the reglementary period is dismissed
outright.
Note: You will notice that there are two prescriptive periods
here: 60 days and 6 months. The 60 days means 60 days from
knowledge of the decision. From the time you learned about
the decision, you only have 60 days to file your PFR from
Judgment. But it should not exceed 6 months from the entry
of judgment.
This is where the amendment becomes very relevant because
the basis here is “entry of judgment”, not the “finality of
judgment”.
And as I have said already in my previous lecture, there is a
difference between “entry of judgment” and “finality of
judgment”.
Finality of Judgment Entry of Judgment
Judgment becomes final But the entry of judgment
after the lapse of the 15-day refers to the time that the
Bayocboc notes as amended by KGM
period to file appeal. It clerk of court enters the
automatically becomes final judgment in the book
final. of entries of judgment. And
this could fall under two
different dates, for sure
Now, the basis in Rule 38 is entry of judgment, not finality.
That is why, if the clerk of court is lazy or the clerk of court
did not right away enter the final judgment in the book of
entries of judgment, it will extend the period of the losing
party to file a petition for relief from judgment. That is good
for the losing party, but bad for the prevailing party.
In order to avoid this, the 1997 Rules provides that the date
the judgment becomes final shall also be considered as the
date of entry of judgment. So, wala nay diperensya karon.
The moment the 15-day period to file an appeal expires, the
judgment becomes final, and that day is also considered to be
the date the judgment was entered, even if in reality, the
judgment was entered a week after. It does not matter when
the clerk of court enters the judgment in the book of entries
of judgment.
Contents of the Petition
A petition for relief from judgment must be verified and
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.
Note: The requirement is the same as that of a motion to lift
order. There is an affidavit of merit that will explain the fraud,
accident, mistake or excusable negligence that caused you not
to answer or that prevented you from answering.
However, in Republic v De Leon, such affidavit of merit is not
anymore required when the judgment or order is void for want
of jurisdiction. “Want of jurisdiction” means that the
defendant was not really served his summons through no fault
of the defendant or his representative.
Judge Q: Another requirement is the affidavit of merits.
Affidavit of merits talks about two types. The first one relates
to the factual allegations in support of your ground which is
either FAME. The other affidavit talks about the ground that
would warrant the relief in the case you are paying for.
1. Factual allegations supporting your claim through FAME
2. There is a compelling reason for you to be able to present
your evidence based on the affidavit of merit.
Instances when an affidavit of merit is not necessary
1. When there is no jurisdiction over the defendant
2. When there is no jurisdiction over the subject matter
3. Where judgment is taken by default
4. Where judgment was entered by mistake or was obtained
by fraud
5. Other similar cases
What will happen if a party files a petition for relief
without any affidavit of merits, or with a defective
affidavit?
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Civpro | Premid Notes
The defect is fatal and the petition will be denied outright
because of lack of affidavit of merits. It is the affidavit of
merits which serves as the jurisdictional basis for the court to
entertain a petition for relief.
Problem: The judgment was entered against me last
December 1997, and there was entry of final judgment in
December 1997. I learned about it last December also; and
now March, 1998, I will file a petition for relief from judgment.
Can I still file the petition for relief?
No more. Although it is within 6 months from date of entry
BUT definitely, between December to March is more than 60
days. So the petition can no longer be filed. That is how you
apply the two periods. Both periods must be complied with.
Is the period for filing a petition for relief extendible?
The remedy allowed by Rule 38 is merely an act of grace or
benevolence intended to afford a litigant a penultimate
opportunity to protect his interest. Considering the nature of
such relief and of the purpose behind it, the periods fixed by
said rule are NON-EXTENDIBLE and is never interrupted; nor
can it be subject to any condition or contingency because it is
itself devised to meet a condition or contingency.
Judge Q: This is already sort of a grace period so you have to
avail of such opportunity considering the nature of such relief,
the periods which is based on equity are non-extendible and
can never be interrupted nor can it be subject to any condition
or contingency because it is itself devised to meet a condition
or contingency.
Order to File an Answer
Section 4. Order to file an answer. – If the petition is
sufficient in form and substance to justify relief, the court in
which it is filed, shall issue an order requiring the adverse
parties to answer the same within fifteen (15) days from the
receipt thereof. The order shall be served in such manner as
the court may direct, together with copies of the petition and
the accompanying affidavits.
Judge Q: Based on the propriety of the petition filed by the
opposing party. There is a hearing to be conducted and if the
court grants the petition, he will also order for the reopening
of the trial, allowing the losing party to present his evidence.
Note: This remedy precludes the issuance of summons upon
its filing. If the petition is sufficient in form and in substance,
the court shall issue an order requiring the adverse parties to
answer within 15 days from receipt thereof.
When a petition for relief from judgment is filed in court, the
court will examine whether your petition is sufficient in form
and substance to justify relief.
If the court finds that your petition is sufficient in form and
substance, the court will issue an order requiring the adverse
party – the plaintiff – to answer your petition for relief from
judgment within fifteen (15) days from receipt thereof.
After the plaintiff filed his answer or comment to your petition
for relief from judgment, the court will now set the petition for
relief from judgment for hearing, where the movant-
Bayocboc notes as amended by KGM
defendant – the petitioner-defendant – will present evidence
to support his petition for relief from judgment, and the other
party will also be given a chance to present evidence to rebut
or contradict the claim of the petitioner-defendant.
Preliminary Injunction Pending Proceedings
Section 5. Preliminary injunction pending
proceedings. – The court in which the petition is filed, may
grant such preliminary injunction as may be necessary for the
preservation of the rights of the parties, upon the filing by the
petitioner of a bond in favor of the adverse party, conditioned
that if the petition is dismissed or the petitioner fails on the
trial of the case upon its merits, he will pay the adverse party
all damages and costs that may be awarded to him by reason
of the issuance of such injunction or the other proceedings
following the petition; but such injunction shall not operate to
discharge or extinguish any lien which the adverse party may
have acquired upon the property of the petitioner.
Judge Q: This talks about an ancillary relief available to a
losing party which is a relief to enjoin or preliminary injunction
especially if the adverse party performed initiatory acts for
execution of the judgment. So it would now be considered as
once the judgment has already been executed, even if there
is a pending petition, then the pending petition would become
mooted if there is already an execution considering that the
judgment has already been considered as accomplished.
Now, a relief for preliminary injunction can only be availed to
the losing party if he puts up a bond which is a guarantee to
answer for all types of damages that will be incurred due to
the injunction. The appropriate time if a petition is filed, such
prayer must be granted together with the filing of the petition,
the court will now take up the prayer for injunction first.
Note: In the meantime, while the case is pending, the court
may grant preliminary injunction for the preservation of the
rights of the parties, upon filing of the petitioner of a bond in
favor of the adverse party.
The preliminary injunction that the court may issue is to
prevent the execution of the judgment. Remember, that when
the petition for relief from judgment is filed, there is already
a final judgment. Hence, the judgment could be the subject
of a writ of execution. There is nothing in the Rules that
precludes the execution of the judgment that is already
executory upon proper application of the prevailing party
during the pendency of the petition. The petitioner, therefore,
would be interested in the preservation of the status quo, as
well as the preservation of the rights of the parties, before the
petition is resolved. So, the plaintiff – the prevailing party –
may ask the court for execution.
That is why when you file a petition for relief from judgment,
you should also ask from the court at the same time the
issuance of a writ of preliminary injunction to prevent the
execution of the judgment until your petition for relief from
judgment is resolved.
Now here, you will have to put up an injunction bond before
the court will grant the preliminary injunction in order to hold
in abeyance the issuance of the writ of execution. The bond
is conditioned upon the payment to the adverse party of all
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Civpro | Premid Notes
damages and costs that may be awarded by reason of the
issuance of the injunction or the other proceedings following
the petition.
Rule: Execution of judgment is not stayed unless a writ of
preliminary injunction is issued by the court.
Upon the filing of the petition
1. The court in which the petition is filed may grant such
preliminary injunction as may be necessary for the
preservation of the right of the parties, upon the filing by
the petitioner of a bond in favor of the adverse party
2. Such injunction shall not discharge any lien which the
adverse party may have acquired upon the property of
the petitioner
Example: I lost in a case. The judgment became final and
executory because I did not make an appeal. However, I filed
a petition for relief. In the meantime, my opponent is asking
the court to execute the decision which is his right because
the judgment is already final and executory. In other words, I
am questioning the judgment of the court while he is asking
the court to enforce the judgment.
Now, what is my remedy to stop the enforcement of
the judgment?
Under Section 5, I can ask the court to issue a writ of
preliminary injunction to stop the enforcement of the
judgment. But I have to put up a BOND conditioned that in
the event that my petition for relief is not meritorious, I will
pay for all the damages that the other party will incur because
of the delay in the execution.
Proceedings after Answer is Filed: Hearing of the
Petition
Section 6. Proceedings after answer is filed. – After the
filing of the answer or the expiration of the period therefor,
the court shall hear the petition and if after such hearing, it
finds that the allegations thereof are not true, the petition
shall be dismissed; but if it finds said allegations to be true, it
shall set aside the judgment or final order or other proceeding
complained of upon such terms as may be just. Thereafter the
case shall stand as if such judgment, final order or other
proceeding had never been rendered, issued or taken. The
court shall then proceed to hear and determine the case as if
a timely motion for a new trial or reconsideration had been
granted by it.
Judge Q: In effect, the court will vacate its judgment and will
order for the trial of the case. So it is already a relief allowing
the party to ask the court to disregard its final judgment or
decision and to make a new one so it has to be based on
compelling reasons. The court must be circumspect in
granting this petition because it would result to doing its job
that it has already done. There must be some good reason to
set aside its decision or judgment.
Hearing of the Petition
If the court grants the petition, it will then conduct a hearing
of the case on the merits. So, there are actually two
hearings to be conducted by the court:
1. To determine whether the petition will be granted
2. The other will be on the merits if the petition is granted
Bayocboc notes as amended by KGM
Note: When the court grants your petition for relief from
judgment, it does not mean that you already win the case.
What the court will do is just to set aside the judgment
momentarily and allow you now to present your evidence.
So, after the grant of your petition for relief from judgment,
there will be another hearing, and this time, it will be a hearing
on the merits. It will be a hearing on the merits where you will
present your evidence-in-chief.
Take note that petition for relief is not akin to appeal. In the
first place, there is no appeal here. In petition for relief, you
are not asking the court to change its decision. When a
petition for relief from judgment is granted, the decision
against you will be set aside as if it was never rendered and
we will try the case all over again. In a petition for relief, the
court has no power to change its decision because it has
already become final and executory. But its power under Rule
38 is to set it aside as if it was never rendered and conduct a
new trial as if a motion for new trial has been filed.
Procedure Where the Denial of An Appeal is Set Aside
Section 7. Procedure where the denial of an appeal is
set aside. – Where the denial of an appeal is set aside, the
lower court shall be required to give due course to the appeal
and to elevate the record of the appealed case as if a timely
and proper appeal had been made.
Judge Q: This relates to Section 2, so this one does not take
so much time and effort for the lower court because it only
needs to set aside the denial and give due court to the appeal
and elevate the record.
Can I file a petition for relief from the denial of an
appeal?
Yes
And if my petition for relief from the order denying the
appeal is granted, what will happen?
According to Section 7, the court will now grant the appeal
and allow the appeal to proceed as if it was filed on time.
Meaning, the judgment will not be set aside but I will be given
the right to appeal if the failure to file an appeal as due to
FAME.
No petition for relief in the Supreme Court
Can petitioner avail of a petition for relief from
judgment under Rule 38 from a resolution of the SC
denying his petition for review?
The SC in Purcon vs. MRM Philippines, Inc. GR 182718,
September 26, 2008 answered the question in the negative.
A petition for relief from judgment is not an available remedy
in the SC. In summary the SC explained, thus:
“First, although Section 1 of Rule 38 states that when a
judgment or final order is entered through fraud, accident,
mistake or excusable negligence, a party in any court may file
a petition for relief from judgment, this rule must be
interpreted in harmony with Rule 56, which enumerates the
original cases cognizable by the Supreme Court, thus:
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Civpro | Premid Notes
Section 1. Original cases cognizable. – Only petition for
certiorari, prohibition, mandamus, quo warranto, habeas
corpus, disciplinary proceedings against members of the
judiciary and attorneys, and cases affecting ambassadors,
other public ministers and consuls may be filed originally in
the Supreme Court.
“A petition for relief from judgment is not included in the list
of Rule 56 cases originally cognizable by the Court.
Second, while Rule 38 uses the phrase “any court,” it refers
only to the Municipal/Metropolitan and Regional Trial Courts.
Starting from: a motion to lift the order of default or a motion
to set aside the order of default. Then, if there is already a
judgment, but the judgment has not yet become final: motion
for new trial; and if there is already a final judgment, you still
have a third remedy: petition for relief from judgment, which
you can bring within 60 days from knowledge of the
judgment, but not more than 6 months from the date the
judgment was entered. If the 6-month period has already
expired, your last recourse now will be annulment of judgment
by the Court of Appeals, governed by Rule 47, which we will
discuss later on.

As revised, Rule 38 radically departs from the previous rule as

it now allows the Metropolitan or Municipal Trial Court which
decided the case or issued the order to hear the petition for
relief. Under the old rule, a petition for relief from the
judgment or final order of Municipal Trial Courts should be
filed with the Regional Trial Court.

The procedural change in Rule 38 is in line with Rule 5,

prescribing uniform procedure for Municipal and Regional Trial
Courts and designation of Municipal/Metropolitan Trial Courts
as courts of record.

Third, the procedure in the CA and the Supreme Court are

governed by separate provisions of the Rules of Court. It may,
from time to time, be supplemented by additional rules
promulgated by the Supreme Court through resolutions or
circulars. As it stands, neither the Rules of Court nor the
Revised Internal Rules of the CA allows the remedy of petition
for relief in the CA.xxx”

Earlier, in Mesina vs. Meer 383 SCRA 625, the Court ruled that
a petition for relief from judgment is not an available remedy
in the CA and the SC.

Remedies if Rule 38 is no longer available

1. Petition for annulment of judgment under Rule 47
2. A direct or collateral attack if judgment is void ab initio
for lack of jurisdiction

Note: Under AM No. 08-8-7 SC, otherwise known as the Rule

of Procedure for Small Claims Cases, a Motion for New Trial
or Reconsideration (R 37), and a Petition for Relief from
Judgment (R 38) are prohibited pleadings.

Both remedies, likewise, are prohibited pleadings under the

Rule on Summary Procedure.

Petition for relief in environmental cases

In environmental cases, a petition for relief from judgment
shall be allowed in highly meritorious cases or to prevent a
manifest miscarriage of justice.

Review of Rule 38
So, to recall, a person who lost the case because he was
deprived of his day in court – because he was not able to
answer and present his evidence in court – has so many
remedies under the law.

220
Bayocboc notes as amended by KGM
Civpro | Premid Notes
RULE 47. ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS
A petition for annulment of judgment is a remedy in equity so
exceptional in nature that it may be availed of only if the
judgment, final order, or final resolution sought to be annulled
was rendered by a court lacking jurisdiction or through
extrinsic fraud, and only when other remedies are wanting. It
is never resorted to as a substitute for the person’s own
neglect in not promptly availing himself of the ordinary or
other appropriate remedies.
Moreover, parties aggrieved by final judgments, orders or
resolutions cannot be allowed to easily and readily abuse a
petition for annulment of judgment. Thus, the Court has
instituted safeguards by limiting the grounds for annulment of
judgment to lack of jurisdiction and extrinsic fraud, and by
prescribing in Section 1, Rule 47 of the Rules of Court that the
petitioner should show that the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies are no
longer available without fault on the part of the petitioner. A
petition for annulment that ignores or disregards any of the
safeguards cannot prosper.
Further, it must be emphasized through fault on the part of
the petitioner. A petition for annulment that ignores or
disregards any of the safeguards cannot prosper.
Judge Q: One of the reliefs available to a losing party after
judgment becomes final. If you may recall, the CA as the one
who has exclusive jurisdiction as the one who has jurisdiction
so it is an original action unlike petition for relief. In case of
annulment of judgment, it should be with the CA since it has
original and exclusive jurisdiction.
Purpose of Rule 47
The objective of the remedy of annulment of judgment or final
order is to undo or set aside the judgment or final order, and
thereby grant to the petitioner an opportunity to prosecute his
cause or to ventilate his defense. If the ground relied upon is
lack of jurisdiction, the entire proceedings are set aside
without prejudice to the original action being refiled in the
proper court. If the judgment or final order or resolution is set
aside on the ground of extrinsic fraud, the CA may on motion
order the trial court to try the case as if a timely motion for
new trial had been granted therein.
Annulment is an original action
Annulment of a judgment is an original action, which is
separate and distinct and independent of the case where the
judgment sought to be annulled is rendered. It is not a
continuation or progression of the same case. Thus,
regardless of the nature of the original action, in the decision
sought to be annulled, be it in personam, in rem or quasi in
rem, the respondent should be duly notified of the petition
seeking to annul the court’s decision over which the
respondent has a direct or indirect interest.
Limitation to Applicability
Rule 47 limits the applicability of the remedy of annulment of
judgment to final judgments, orders or resolutions. A final
judgment is one which finally disposes of a case, leaving
nothing more for the court to do in respect thereto. Rule 47
does not apply to an order implementing a writ of execution
issued over certain real properties since the order is not a final
order as it merely enforces a judicial process over an identified
object. It does not involve an adjudication on the merits or
determination of the rights of the parties. Note that the proper
Bayocboc notes as amended by KGM
remedy against an order of execution is the appropriate
special civil action under Rule 65.
When remedy may be invoked
The remedy may not be invoked, not only where the petitioner
or party has failed to avail himself of the remedies of new trial,
appeal, petition for relief or other appropriate remedies
through his own fault or negligence, but also where he has
availed himself of such remedies, but lost.
The remedy of annulment of judgment is also an exception to
the “final judgment rule” or to the doctrine of immutability of
judgments. This is because, when the judgment is annulled,
the old judgment will be set aside.
Compromise Agreement
A compromise agreement has the effect and authority of res
judicata between the parties, and is immediately final and
executory, unless rescinded upon grounds that vitiate
consent. Once stamped with judicial imprimatur, it is more
than a mere contract between the parties. Any effort to annul
the judgment based on compromise on the ground of extrinsic
fraud must proceed in accordance with Rule 47 of the Rules
of Court.
Requirements that must be satisfied before a Rule 47 petition
can prosper
1. The remedy is available only when the petitioner can no
longer resort to the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies
through no fault of the petitioner
2. An action for annulment of judgment may be based only
on two grounds: extrinsic fraud and lack of jurisdiction
3. The action must be filed within the temporal window
allowed by the Rules
a. Extrinsic fraud- within 4 years from the
discovery of the extrinsic fraud
b. Lack of jurisdiction- must be brought before it is
barred by laches or estoppel
Note: There is also a formal requisite that the petition be
verified, and must allege with particularity the facts and the
law relied upon for annulment, as well as those supporting the
petitioner's good and substantial cause of action or defense,
as the case may be.
Who may file the action?
The petitioner need not be a party to the judgment sought to
be annulled. What is essential is that the petitioner is one who
can prove his allegation that the judgment was obtained by
the use of fraud and collusion and that he was affected
thereby (Alaban vs. CA; Islamic Da’Wah Council of the Phil.
vs. CA 178 SCRA 178). An action for annulment can be filed
by one who was not a party to the action in which the assailed
judgment was rendered. It is a remedy in law independent of
the case where the judgment sought to be annulled is
promulgated
Coverage
Section 1. Coverage. – This Rule shall govern the
annulment by the Court of Appeals of judgments or final
orders and resolutions in civil actions of Regional Trial Courts
for which the ordinary remedies of new trial, appeal, petition
for relief or other appropriate remedies are no longer available
through no fault of the petitioner.
Note: The Court of Appeals may annul the judgment of the
RTC if the remedies of new trial, appeal, petition for relief from
221
Civpro | Premid Notes
judgment or other remedies are no longer available through
no fault of the petitioner.
This petition falls under the exclusive and original jurisdiction
of the Court of Appeals. It is exclusive because you cannot file
it in any other court. It is original because you can commence
it only in the Court of Appeals.
It is a continuation of the remedies that were already provided
in the Rules under Rule 9 (Declaration of Default), Rule 37
(New Trial or Reconsideration), and Rule 38 (Petition for
Relief).
Judge Q: If everything else fails, if not able to file a timely
appeal or MNT has been denied, the losing party can file a
petition for annulment of judgment. This is resorted to in
cases where the ordinary remedies of new trial, appeal or
others are not available through no fault of the petitioner:
based on two grounds: extrinsic fraud and lack of jurisdiction-
-and another ground which is denial of due process.
This remedy is available when the ordinary remedies are no
longer available to through no fault of the petitioner. The
remedy may no longer be invoked if party has availed of MNT
or appeal. What the SC is saying is if you have the earliest
opportunity to seek relief, then seek the appropriate remedy,
if you fail not to, then you will lose that relief, any whatsoever.
Unlike in rule 38, a person who is not the party to the case
can file a petition of annulment of judgment. Petitioner need
not be a party. What is essential is petitioner is one who can
prove and that he was the one protected thereby.
What happens if you learn about the case after 6
months from the time the judgment has become final
and executory? What is your remedy?
Your last remedy is Rule 47- Annulment of Judgment of the
RTC
When you file an annulment of Judgment, it is necessary to
state in your petition that you were not able to avail of the
Petition for New Trial, or you were not able to appeal, or avail
of Petition for Relief, or other remedies through no fault of
your own.
IOW, you knew only of the case for the first time only AFTER
the lapse of 6 months from the time the judgment becomes
final and executory.
Question of jurisdiction over quasi-judicial bodies
Regional trial courts have no jurisdiction to annul judgments
of quasi-judicial bodies of equal rank. Likewise, the CA also
has no jurisdiction over such action. IOW, no annulment of
judgments of quasi-judicial agencies is allowed. Rule 47 can
only be taken to the Court of Appeals.
Section 9 of BP 129 and Rule 47 of the Rules of Court both
state that the CA has jurisdiction over annulment of
judgments of regional trial courts only. The Court ruled that
the "silence of B.P. Blg. 129 on the jurisdiction of the CA to
annul judgments or final orders and resolutions of quasi-
judicial bodies like the DARAB indicates its lack of such
authority."
Section 2. Grounds for annulment. – The annulment may
be based only on the grounds of extrinsic fraud and lack of
jurisdiction.
Bayocboc notes as amended by KGM
Extrinsic fraud shall not be a valid ground if it was availed of,
or could have been availed of, in a motion for new trial or
petition for relief.
Grounds:
1. Extrinsic fraud
a. Extrinsic fraud should not be a valid ground if availed
of, or could have been availed of, in a motion for new
trial or petition for relief
2. Lack of jurisdiction
a. The rationale for the restriction is to prevent the
extraordinary action from being used by a losing party
to make a complete farce of a duly promulgated
decision that has long become final and executory.
N.B. If the ground is extrinsic fraud, the petitioner must allege
that he failed to avail of new trial, appeal, or petition for relief
through no fault of his own. However, if the ground of lack of
jurisdiction is also included, then there is no need to allege
said condition precedent.
Judge Q: Jurisprudence has provided an additional ground
which is denial of due process. In fact, in the second
paragraph, extrinsic fraud shall not be a valid ground if it was
availed of, or could have been availed of, in a motion for new
trial or petition for relief. So you cannot avail of this anymore.
*Discussed case of Leona v Balange and mentioned doctrine
of immutability of judgment* In other words, if we have an
opportunity to avail of a relief, you must resort to it right away.
If you choose not to avail and then later on question the
judgment, the court will deny your petition.
With regard to lack of jurisdiction, the petitioner must show
not mere grave abuse of discretion but absolute lack of
jurisdiction. You will learn later in Rule 65, it is based on the
claim that the lower court acted with grave abuse of discretion
amounting to lack or in excess of jurisdiction. That is not what
is meant here. It only simply means lack of jurisdiction over
the subject matter or over the person of the defendant.
Extrinsic fraud
Extrinsic fraud exists when there is a fraudulent act committed
by the prevailing party outside of the trial of the case, whereby
the defeated party was prevented from presenting fully his
side of the case by fraud or deception practiced on him by the
prevailing party.
Fraud is extrinsic where the unsuccessful party had been
prevented from exhibiting folly his case, by means of fraud or
deception, as by keeping him away from court, or by a false
promise of a compromise; or where the defendant never had
knowledge of the suit, being kept in ignorance by the acts of
the plaintiff or where an attorney fraudulently or without
authority assumes to represent a party and connives at his
defeat; these and similar cases which show that there has
never been a real contest in the trial or hearing of the case
are reasons for which a new suit may be sustained to set aside
and annul the former judgment and open the case for a new
and fair hearing. Ultimately, the overriding consideration is
that the fraudulent scheme of the prevailing litigant prevented
a party from having his day in court
Note: It also refers to acts where the losing party never had
knowledge of the suit being kept in ignorance by the acts of
the other party. However, mistake or gross negligence of a
222
Civpro | Premid Notes
lawyer does not amount to an extrinsic fraud that would
warrant a ground for annulment.
Take note that extrinsic fraud shall not be a valid ground if it
was availed of, or could have been availed of, in a motion for
new trial or petition for relief.
May fraud by an attorney-in-fact be considered a
ground for annulment?
Yes, in Cosmis Lumber Corp v CA, the Court held that “The
highly reprehensible conduct of attorney-in-fact in the civil
case constituted an extrinsic or collateral fraud by reason of
which the judgment rendered thereon should have been
struck down. Not all the legal semantics in the world can
becloud the unassailable fact that petitioner was deceived and
betrayed by its attorney-in-fact. The latter deliberately
concealed from petitioner, her principal, that a compromise
agreement had been forged with the end result that a portion
of petitioner’s property was sold literally for a song, for
P26,000. Thus completely kept unaware of its agent’s artifice,
petitioner was not accorded even a fighting chance to
repudiate the settlement so much so that the judgment based
thereon became final and executory.”
Is forgery or perjury extrinsic fraud?
No, the use of forged instruments or perjured testimonies
during trial is not an extrinsic fraud. Such evidence does not
preclude a party’s participation in the trial. Offering
manufactured evidence is intrinsic and not extrinsic fraud.
Intrinsic fraud is not sufficient to annul a judgment.
Lack of jurisdiction
Lack of jurisdiction, as a ground for annulment of judgment,
refers to either lack of jurisdiction over the person of the
defending party or over the subject matter of the claim. Where
the court has jurisdiction over the defendant and over the
subject matter of the case, its decision will not be voided on
the ground of absence of jurisdiction.
In a petition for annulment of judgment grounded on lack of
jurisdiction, it is not enough that there is an abuse of
jurisdictional discretion. It must be shown that the court
should not have taken cognizance of the case because the law
does not confer it with jurisdiction over the subject matter.
Petitioner must show an absolute lack of authority on the part
of the court to hear and decide the case. There would be no
valid ground to grant the petition for annulment where the
error raised pertain to the trial court’s exercise of jurisdiction,
not the absence of jurisdiction.
Example: Lack of jurisdiction means that you did not know
about the case because the Summons was not served on you
– there was no valid service of Summons, so you did not know
about the case.
If you were not served with Summons, the court has not yet
acquired jurisdiction over your person. The entire proceeding
will be null and void for lack of jurisdiction over the person of
the defendant.
Note: The rules is quite specific that in annulment of
judgment, it is important for the defendant who files the
petition for annulment of the judgment of the RTC to state
that he was not able to answer or he was not able to avail of
the remedy of trial, to appeal, to file a petition for relief from
judgment through no fault of his own.
Bayocboc notes as amended by KGM
IOW, if he knew about the judgment after it was rendered but
before it became final – he could have availed of New Trial.
Or if he knew about the judgment after it became final but
the six-month period to file a petition for relief from judgment
has already expired and he failed to file a petition for relief
from judgment – he is not allowed anymore to file an
annulment of judgment. It was his fault because he did not
avail of the available remedies, he cannot say through no fault
of his own.
Dean M: If the ground is extrinsic fraud, the petitioner must
allege that he failed to avail of new trial, appeal, petition for
relief through no fault of his own. HOWEVER, if the ground is
lack of jurisdiction, there is no need for you to state that you
were not able to avail of new trial, appeal, or petition for relief
from judgment through no fault of his own.
Coombs v Castaneda
A judgment ordering a reconstitution of title is null and void if
the title is not really lost but in the possession of the rightful
owner. If the title was not lost, the RTC does not have
jurisdiction to grant the reconstitution of title. Thus, the
judgment of the court ordering reconstitution can be assailed
by Annulment of Judgment under Rule 47 on the ground of
lack of jurisdiction and there is no need any more to state in
the petition that petitioner failed to avail of appeal, petition
for relief, etc., through no fault of his own.
Period for Filing Action
Section 3. Period for filing action. – If based on extrinsic
fraud, the action must be filed within four (4) years from its
discovery; and if based on lack of jurisdiction, before it is
barred by laches or estoppel.
Filing and Contents of Petition
Section 4. Filing and contents of petition. – The action
shall be commenced by filing a verified petition alleging
therein with particularity the facts and the law relied upon for
annulment, as well as those supporting the petitioner’s good
and substantial cause of action or defense, as the case may
be.
The petition shall be filed in seven (7) clearly legible copies,
together with sufficient copies corresponding to the number
of respondents. A certified true copy of the judgment or final
order or resolution shall be attached to the original copy of
the petition intended for the court and indicated as such by
the petitioner.
The petitioner shall also submit together with the petition
affidavits of witnesses or documents supporting the cause of
action or defense and a sworn certification that he has not
theretofore commenced any other action involving the same
issues in the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; if there is
such other action or proceeding, he must state the status of
the same, and if he should thereafter learn that a similar
action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and other tribunal or
agency thereof within five (5) days therefrom.
Contents:
1. Verified petition in 7 copies
2. Affidavits of witnesses or documents
3. Certification of non-forum shopping
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Civpro | Premid Notes
Action by the Court
Section 5. Action by the court. – Should the court find no
substantial merit in the petition, the same may be dismissed
outright with specific reasons for such dismissal.
Should prima facie merit be found in the petition, the same
shall be given due course and summons shall be served on
the respondent.
Note: The court can outrightly dismiss your petition if it finds
your petition to be patently without merit or prosecuted
manifestly for delay. If the court finds that your petition to
annul the judgment of the RTC is really unmeritorious, it can
dismiss the case right away. If it finds that there is merit to
your petition, it will issue summons and it will be served on
the respondent for the respondent to file his Answer. That is
when the court acquires jurisdiction over the respondent.
Take note that this is different from Rule 46. In Rule 46 there
is no Summons. In Rule 47, there is an issuance of Summons.
In Rule 46, the court acquires jurisdiction the moment the
respondent receives the initial action of the court and the
initial action of the court is either to dismiss or to require him
to comment. In Rule 47, the Court of Appeals will issue
Summons and it will be served on the defendant. The
defendant will now be required to file his Answer to the
petition for annulment.
Procedure
Section 6. Procedure. – The procedure in ordinary civil
cases shall be observed. Should a trial be necessary, the
reception of the evidence may be referred to a member of the
court or a judge of a Regional Trial Court.
What happens if the judgment is annulled? Can the
plaintiff re-file the case?
Yes, because it is as if there was no judgment.
Effect of judgment
Section 7. Effect of judgment. – 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 motion for new trial had been granted therein.
Judge Q: If extrinsic fraud, similar to Rule 38.
What will be the effect if the court grants the
annulment of the judgment?
It depends on the ground:
a. Lack of jurisdiction- judgment is set aside without
prejudice to the filing of the case.
a. If the defendant is able to prove that he was really
not served with summons, the entire proceeding will
be null and void but it will not prevent the plaintiff
from refiling the case. This time, he must see to it that
the sheriff will serve the summons properly on the
defendant
b. Extrinsic fraud- trial de novo, as if a timely motion for new
trial is filed
a. The judgment will be vacated and it is as if a new trial
is granted by the court. There will be a trial de novo
as if a timely motion for new trial is filed. The
Bayocboc notes as amended by KGM
defendant will be allowed to file his Answer and
present his evidence.
What happens if by the time you re-file the case the
prescriptive period has already lapsed?
As a general rule, while the action for annulment is pending,
the prescriptive period for filing is interrupted.
Suspension of prescriptive period
Section 8. Suspension of prescriptive period. – The
prescriptive period for the refiling of the aforesaid original
action shall be deemed suspended from the filing of such
original action until the finality of the judgment of annulment.
However, the prescriptive period shall not be suspended
where the extrinsic fraud is attributable to the plaintiff in the
original action.
Judge Q: So there is a suspension of the running of the
prescriptive period.
Note: The prescriptive period is suspended when you file a
petition for annulment of judgment. If the court grants the
petition and the basis is lack of jurisdiction, the plaintiff can
still refile the cases. However, if the basis of the annulment is
due to intrinsic fraud, the court will allow trial de novo.
Except: If the extrinsic fraud is attributable to the plaintiff in
the original action – If the extrinsic fraud was committed by
the plaintiff, the suspension of the prescriptive period will not
apply.
Relief available
Section 9. Relief available. – The judgment of annulment
may include the award of damages, attorney’s fees and other
relief. If the questioned judgment or final order or resolution
had already been executed, the court may issue such orders
of restitution or other relief as justice and equity may warrant
under the circumstances.
Note: Judgment may include awards of damages, attorney’s
fees and other reliefs and orders of restitution.
Annulment of judgments or final orders of MTCs
Section 10. Annulment of judgments or final orders of
Municipal Trial Courts. – An action to annul a judgment or
final order of a Municipal Trial Court shall be filed in the
Regional Trial Court having jurisdiction over the former. It
shall be treated as an ordinary civil action and sections 2, 3 4,
7, 8 and 9 of this Rule shall be applicable thereto.
Is there an action of annulment of judgments of MTC?
Yes, if there is annulment of judgment of the RTC, by
implication, there is in the MTC. You cannot file it in the CA.
You file it in the RTC.
Annulment of judgment of the MTC will fall under the rule on
jurisdiction of the RTC – any action which does not belong to
the jurisdiction of any other courts (Section 19 [6], BP 129)
or, an action the subject matter of which is incapable of
pecuniary estimation (Section 19 [1], BP 129) That would be
the authority.
Thus, if the judgment of the MTC is already final and the
period to file a petition for relief of judgment has already
expired, you can still have the judgment of the MTC vacated
by filing a petition for annulment of judgment before the RTC.
You apply the same procedure in Rule 47.
224
Civpro | Premid Notes
Judge Q: So another relief is certiorari under Rule 65 but you
are going to take that up in special civil actions so I will just
defer this action.

225
Bayocboc notes as amended by KGM
Civpro | Premid Notes
RULE 65. CERTIORARI, PRHOBITION AND
MANDAMUS
Three remedies under Rule 65:
1. Certiorari
2. Prohibition
3. Mandamus
Certiorari is a remedy for the correction of errors of
jurisdiction, not errors of judgment. It is an original and
independent action that was not part of the trial that had
resulted in the rendition of the judgment or order complained
of. More importantly, since the issue is jurisdiction, an original
action for certiorari may be directed against an interlocutory
order of the lower court prior to an appeal from the judgment
Certiorari is not and cannot be made a substitute for an appeal
where the latter remedy is available but was lost through fault
or negligence. The remedy to obtain a reversal of judgment
on the merits is appeal. This holds true even if the error
ascribed to the lower court is its lack of jurisdiction over the
subject matter, or the exercise of power in excess thereof, or
grave abuse of discretion. The existence and availability of the
right to appeal prohibits the resort to certiorari because one
of the requirements for certiorari is that there is no appeal.
Certiorari generally lies only when there is no appeal nor any
other plain, speedy or adequate remedy available to
petitioners. Certiorari cannot be allowed when a party to a
case fails to appeal a judgment despite the availability of that
remedy, certiorari not being a substitute for lost appeal.
Purpose of Certiorari
The purpose of certiorari is to correct errors of jurisdiction only
or grave abuse of jurisdiction amounting to lack or excess of
jurisdiction. Its principal office is only to keep the inferior
within the parameters of its jurisdiction. It does not concern
itself with errors of judgment; its province is confined to issues
of jurisdiction or grave abuse of discretion.
It is a remedy narrow in scope. It is not a general utility tool
in the legal workshop. Its function is to raise only questions of
jurisdiction and no other. Do not file certiorari if your purpose
is to raise a factual issue or to ask for a re-evaluation of the
facts and evidence. This is because the office of certiorari has
been reduced to the correction of defects of jurisdiction solely
and cannot be legally used for any other purpose.
In summary, Rule 65 of the Rules of Court requires a petition
for certiorari to comply with certain basic requirements:
a. The petition is directed against a tribunal, board or officer
exercising judicial or quasi-judicial functions
b. Such tribunal, board or officer has acted without or in
excess of jurisdiction, or grave abuse of discretion
amounting to lack or excess of jurisdiction
c. There is no appeal, or any plain, speedy or adequate
remedy in the ordinary course of law
Exceptions to the rule that certiorari is not available when the
period for appeal has lapsed and certiorari may still be invoked
when appeal is lost are the following:
a. Appeal was lost without the appellant’s negligence
b. When public welfare and the advancement of public
policy dictates
c. When the broader interest of justice so requires
d. When the writs issued are null and void
e. When the questioned order amounts to an oppressive
exercise of judicial authority
Bayocboc notes as amended by KGM
Certiorari under Rule 65 is not an appeal
A petition for certiorari under Rule 65 is an original action,
unlike the certiorari in Rule 45 which is a mode of appeal.
Filing a petition for certiorari is hence, like filing a new action.
Since it is an original and independent action, the judgment
in the petition for certiorari is correctible by an appeal, not by
another petition for certiorari.
Judicial discretion
A writ of certiorari is an extraordinary prerogative writ that is
never demandable as a matter of right.
The acceptance of a petition for certiorari, prohibition and the
giving of due course thereto, is addressed to the sound
discretion of the court.
Motion for Reconsideration
The general rule is that before filing a petition for certiorari
under Rule 65 of the Rules of Court, the petitioner is
mandated to comply with a condition precedent: the filing of
a motion for reconsideration of the assailed order, and the
subsequent denial thereof by the court a quo.
The well-established rule is that the motion for
reconsideration is an indispensable condition before an
aggrieved party can resort to the special civil action for
certiorari under Rule 65 of the Rules of Court. The rationale
for the rule is that the law intends to afford a lower tribunal
an opportunity to rectify such errors or mistakes it may have
committed before resort to courts of justice can be had.
Exceptions to the rule requiring a motion for reconsideration
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 proceedings
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 of 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 the 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 proceeding was ex parte or in which the
petitioner had no opportunity to object
i. Where the issue raised is one purely of law or public
interest is involved
Petition for certiorari
Section 1. Petition for certiorari. – When any tribunal,
board or officer exercising judicial or quasi- judicial functions
has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings
of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.
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The petition shall be accompanied by a certified true copy of
the judgment, order or resolution subject thereof, copies of
all pleadings and documents relevant and pertinent thereto,
and a sworn certification of non-forum shopping as provided
in the third paragraph of section 3, Rule 46.
Against Whom Filed
Against any tribunal, board or officer exercising judicial or
quasi-judicial functions
Judicial function-refers to the power to determine what the
law is, what are the legal rights of the parties, and adjudicate
their rights. This is exercised by regular courts.
What are quasi-judicial bodies?
Quasi-judicial bodies are bodies or entities of the government
but they do not belong to the judicial branch – they belong to
the executive branch. But although they belong to the
executive branch, they are given under the law or the
Constitution the power or authority to conduct a hearing and
decide a case.

Basis of the Petition Since they do not belong to the judicial branch, they are called
a. If acted without or in excess of jurisdiction quasi-judicial bodies performing quasi-judicial functions.
b. With abuse of discretion amounting to lack or in excess
of jurisdiction Without Jurisdiction v Excess of Jurisdiction v Grave Abuse of
Discretion
Note: The remedy of certiorari under Rule 65 based on grave
abuse of discretion committed by the respondent court applies Without Excess of Grave Abuse of
only against a court or a quasi-judicial body. It must be Jurisdiction Jurisdiction Discretion
performing a judicial or quasi-judicial function. Meaning, it is Means he does Means he is It means such
tasked to decide a case. not have the legal clothed with the capricious and
power to power to whimsical
Conditions determine the determine the exercise of
case case but he judgment as is
What are the conditions for the filing of a petition for oversteps his equivalent to lack
certiorari under Rule 65? authority of jurisdiction or
a. There is no appeal, or any plain, speedy and adequate in other words,
remedy in the ordinary course of law. where the power
b. Aggrieved party shall file a verified petition seeking the is exercised in an
annulment of subject order arbitrary or
c. Petition to be accompanied by certified true copy of the despotic manner
judgment or order by reason of
d. Certification of non-forum shopping passion or
e. Proper to correct error of jurisdiction not of judgment personal hostility,
and it must be so
Error of jurisdiction- the court or quasi-judicial body assumes patent and gross
jurisdiction over a case but it does not really have jurisdiction as to amount to
under the law. If the court has no jurisdiction, the entire an invasion of
proceeding is null and void. If you call the attention of the positive duty or to
court and filed a motion to dismiss showing that the court has a virtual refusal to
no jurisdiction over the subject matter, yet the court denied perform the duty
the motion to dismiss and insisted on trying the case. enjoined or to act
in contemplation
What will be your remedy? of law
Your remedy is not an appeal from the decision of the court
denying your MTD because that is not appealable. That is an The judge has discretion. Judicial power is an exercise of
interlocutory order. discretion. It is a discretionary power. But if you abuse your
discretion and you exercise it in an arbitrary and despotic
Your remedy is certiorari – you go to the next higher court manner by reason of passion or personal hostility, then your
questioning the actuation of the judge of that lower court on act can be questioned under Rule 65. Abuse of discretion is
insisting to have the jurisdiction even if it does not have tantamount to lack or in excess of jurisdiction.
jurisdiction over the case.
Petition for Prohibition and Mandamus
When the court has no jurisdiction and it still insisted on trying Section 2. Petition for prohibition. – When the
the case, there is now a case of error of jurisdiction which is proceedings of any tribunal, corporation, board, officer or
correctible only by certiorari. If the court, however, has person, whether exercising judicial, quasi-judicial or
jurisdiction over the case and conducted a hearing pursuant ministerial functions, are without or in excess of its or his
to its jurisdiction but committed errors in the appreciation of jurisdiction, or with grave abuse of discretion amounting to
facts and application of law, it is only a mere error of lack or excess of jurisdiction, and there is no appeal or any
judgment. other plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified
Error of Judgment- the court has jurisdiction but it committed petition in the proper court, alleging the facts with certainty
an error in deciding the case. It is correctible by appeal and and praying that judgment be rendered commanding the
not by certiorari. respondent to desist from further proceedings in the action or
matter specified therein, or otherwise granting such incidental
Respondent must be performing a judicial or quasi-judicial reliefs as law and justice may require.
function

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Civpro | Premid Notes
The petition shall likewise be accompanied by a certified true
copy of the judgment, order or resolution subject thereof,
copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as
provided in the third paragraph of section 3, Rule 46.
Against whom filed
a. Tribunal
b. Corporation
c. Board
d. Officer
e. Person
Whether exercising judicial, quasi-judicial, or ministerial
functions
Prohibition is a special civil action. The respondent here is
exercising not only judicial or quasi-judicial functions but also
ministerial functions.
Basis of the Petition for Prohibition
a. Without or in excess of jurisdiction- if the respondent is a
judicial or quasi-judicial body
b. Grave abuse of discretion amounting to lack or in excess
of jurisdiction
c. There is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law.
Where to File
RTC, CA, SC
If the act that you are questioning is that of the RTC, then
naturally, you file the Prohibition with the CA, or if not, to the
Supreme Court. But normally, you will have to do it with the
CA first. You cannot go directly to the SC because there is
already a ruling that although the Supreme Court has
concurrent jurisdiction over special civil actions of certiorari,
prohibition, and mandamus, quo warranto, you still have to
observe the principle of hierarchy of courts.
If what you are questioning is that of a quasi-judicial body
performing a quasi-judicial function, you can file your Petition
for Prohibition in the RTC, or in the CA, or SC.
Prayer for TRO or Preliminary Injunction
A prayer for TRO or Preliminary Injunction must be prayed for
to prevent the act during the pendency of the case.
Prohibition does not lie against legislative functions
Prohibition lies against judicial or ministerial functions, but not
to legislative functions.
Exhaustion of Administrative Remedies
Exhaustion of administrative remedies must be availed of if
the petition is against an executive official.
Section 3. Petition for mandamus. – When any tribunal,
corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the
respondent, immediately or at some other time to be specified
by the court, to do the act required to be done to protect the
rights of the petitioner, and to pay the damages sustained by
the petitioner by reason of the wrongful acts of the
respondent.
The petition shall also contain a sworn certification of non-
forum shopping as provided in the third paragraph of section
3, Rule 46.
Against whom Filed
a. Tribunal
b. Corporation
c. Board
d. Office
e. Person
Grounds of Petition for Mandamus
a. Respondent unlawfully neglects the performance of an
act which the law specifically enjoins as a duty resulting
from an office, trust, or station
b. He unlawfully excludes another from the use and
enjoyment of a right or office to which said person is
entitled
Conditions
a. There is no other plain, speedy, and adequate
remedy in the course of law
b. The petition must be verified
c. The petition must contain a certificate of non-forum
shopping
These conditions are common to the three special civil actions
of mandamus, certiorari, and prohibition.
Compel performance of ministerial duty
Mandamus will lie to compel performance of a ministerial duty
NOT a discretionary duty.
A petition for mandamus is premature if there are
administrative remedies available to the petitioner except
when the case involves only legal question.
Definitions and distinctions

Principle of Political Question Certiorari Prohibition Mandamus

Certiorari Prohibition and Mandamus to do not generally lie, Intended to Prevent the Compel the
subject to some exceptions, against legislative and executive correct an act commission of an performance of
branches or the members thereof acting in the exercise of performed by act an act
their official functions because of the principle of political respondent
question. Extends to Applies to both Applies to
discretionary acts discretionary and ministerial acts
Expanded Scope of Certiorari ministerial acts
While Rule 65 specifically requires that the respondent be a Lies only against
tribunal, board, or officer exercising judicial or quasi- judicial respondent doing Lies to both judicial and non-judicial
functions, recent pronouncements of the Court have extended judicial or quasi-
the reach of the petition to functions that are neither judicial judicial functions
or quasi-judicial.
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Civpro | Premid Notes
Court. It may also be filed with the Court of Appeals or with
Certiorari Prohibition Mandamus the Sandiganbayan, whether or not the same is in aid of the
As to Whom Directed court’s appellate jurisdiction. If the petition involves an act or
Directed against Directed against Directed against an omission of a quasi-judicial agency, unless otherwise
the action of an the entity or the an entity or provided by law or these rules, the petition shall be filed with
entity or person person himself person exercising and be cognizable only by the Court of Appeals.
exercising judicial exercising ministerial
or quasi-judicial judicial, quasi- function In election cases involving an act or an omission of a municipal
function judicial or or a regional trial court, the petition shall be filed exclusively
ministerial with the Commission on Elections, in aid of its appellate
function jurisdiction. (As amended by A.M. No. 07-7-12-SC, December
As to Grounds 12, 2007.)
Entity or person is Entity or person is Entity or person is
alleged to have alleged to have alleged to have Where do you file your certiorari?
acted acted, acting, or been unlawfully: In the next highest court- if the act was committed in the RTC,
1. Without is about to act: 1. Neglected a you will file it to the CA or you may file it also in the Supreme
jurisdiction 1. Without ministerial Court
or jurisdiction duty
2. In excess of or 2. Excluded GR: Where appeal is available, certiorari will not lie.
jurisdiction 2. In excess of another from XPNS:
3. With grave jurisdiction a right or a. Where appeal does not constitute a speedy and adequate
abuse of 3. With grave office remedy
discretion abuse of b. Where Order is in excess of or without jurisdiction
amounting discretion c. Where the Order is a patent nullity
to lack or amounting d. Where the decision in certiorari will avoid future litigation
excess of to lack or
jurisdiction excess of Do you have to wait for the court to finish hearing the
jurisdiction case and decide the case before questioning the
As to Purpose jurisdiction of the court?
To annul or nullify To have For respondent to No. It will be useless to wait for the court to decide because
a proceeding respondent desist do the act it has no jurisdiction. The proceedings is null and void. If the
from further required and to court is without jurisdiction or in excess of jurisdiction, the
proceeding pay damages order of the court is a patent nullity in denying your MTD. You
As to Nature of Remedy go directly to certiorari.
This remedy is This remedy is This remedy is:
corrective- to preventive and 1. Affirmative When do you file?
Not later than 60 days from notice of the judgment or order
correct negative- to or positive- if
denying the motion for reconsideration
usurpation of restrain or the
jurisdiction prevent performance
From the time you receive the order, you have 60 days to file
usurpation of of a duty is
the Petition for Certiorari, Prohibition, and Mandamus.
jurisdiction ordered or
2. Negative- if a
Within that 60 days, you may file an MR and if denied, you
person is
are given a fresh period of another 60 days.
ordered to
desist from
Respondents and costs in certain cases
excluding
another from Section 5. Respondents and costs in certain cases. –
When the petition filed relates to the acts or omissions of a
a right or
judge, court, quasi-judicial agency, tribunal, corporation,
office
board, officer or person, the petitioner shall join, as private
respondent or respondents with such public respondent or
The petition shall also contain a sworn certification of non-
respondents, the person or persons interested in sustaining
forum shopping as provided in the third paragraph of Section
the proceedings in the court; and it shall be the duty of such
3, Rule 46.
private respondents to appear and defend, both in his or their
own behalf and in behalf of the public respondent or
Where Petition Filed
respondents affected by the proceedings, and the costs
Section 4. When and where to file the petition. – The
awarded in such proceedings in favor of the petitioner shall
petition shall be filed not later than sixty (60) days from notice
be against the private respondents only, and not against the
of the judgment, order or resolution. In case a motion for
judge, court, quasi-judicial agency, tribunal, corporation,
reconsideration or new trial is timely filed, whether such
board, officer or person impleaded as public respondent or
motion is required or not, the petition shall be filed not later
respondents.
than sixty (60) days counted from the notice of the denial of
the motion.
Unless otherwise specifically directed by the court where the
petition is pending, the public respondents shall not appear in
If the petition relates to an act or an omission of a municipal
or file an answer or comment to the petition or any pleading
trial court or of a corporation, a board, an officer or a person,
therein. If the case is elevated to a higher court by either
it shall be filed with the Regional Trial Court exercising
party, the public respondents shall be included therein as
jurisdiction over the territorial area as defined by the Supreme
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Civpro | Premid Notes
nominal parties. However, unless otherwise specifically
directed by the court, they shall not appear or participate in
the proceedings therein.
Note: If the act or omission refers to that of a judge, court,
quasi- judicial agency, etc., the petitioner shall join as private
respondent the person interested in the proceeding and it is
his duty to appear and defend the decision. The Judge will be
the public respondent but he need not answer or appear in
the case as he is only a nominal party.
In a petition for certiorari, since you are questioning the
actuations of the judge in its decision, you have to implead
the judge as one of the respondents – that’s what we call as
public respondent. But your opponent in that case to whom
the judge rendered a decision in his favor, should be the
principal respondent or called the private respondent.
Here, the judge need not answer your Petition for Certiorari.
It will be your opponent who will answer your petition for
certiorari and it is his job to defend the action of the judge as
valid under the law because it is in his favor.
Order to Comment
Section 6. Order to comment. – If the petition is sufficient
in form and substance to justify such process, the court shall
issue an order requiring the respondent or respondents to
comment on the petition within ten (10) days from receipt of
a copy thereof. Such order shall be served on the respondents
in such manner as the court may direct, together with a copy
of the petition and any annexes thereto.
In petitions for certiorari before the Supreme Court and the
Court of Appeals, the provisions of section 2, Rule 56, shall be
observed. Before giving due course thereto, the court may
require the respondents to file their comment to, and not a
motion to dismiss, the petition. Thereafter, the court may
require the filing of a reply and such other responsive or other
pleadings as it may deem necessary and proper.
Note: If your petition is already filed, the court may outrightly
dismiss the case if it is glaringly unmeritorious.
If sufficient in form and substance, the trial court may require
the respondent to comment within 10 days from receipt of the
copy of order. In the SC and CA, reply may be required.
Expediting proceedings
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, enjoining 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. (As
amended by A.M. No. 07-7-12-SC, December 12, 2007.)
Bayocboc notes as amended by KGM
Note: Unless a TRO or Preliminary Injunction is issued, the
court may continue with the proceeding within 10 days from
filing of the petition.
Proceedings after comment is filed
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
upon 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 res ipsa
loquitur, other disciplinary sanctions or measures on erring
lawyers for patently dilatory and unmeritorious petitions for
certiorari. (As amended by A.M. No. 07-7-12-SC, December
12, 2007.)
After Comment
The court may hear the case or require the parties to file
memoranda.
Action of the court
It may grant the petition or deny it if it finds to be patently
without merit, etc. If unmeritorious, the court may award in
favor of the respondent treble costs against petitioner and
counsel.
These grounds for the dismissal by the court are also common
grounds under Petition for Review under Rule 42 and Rule 43.
Court may impose motu proprio other disciplinary sanction on
erring lawyers for patently dilatory and unmeritorious
petitions for certiorari.
When may court ourightly dismiss the petition?
a. It finds the same patently without merit or prosecuted
manifestly for delay, or
b. If the questions raised therein are too insubstantial to
require consideration
What is the effect of dismissal?
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.
Service and enforcement of order or judgment
Section 9. Service and enforcement of order or
judgment. – A certified copy of the judgment rendered in
accordance with the last preceding section shall be served
upon the court, quasi-judicial agency, tribunal, corporation,
board, officer or person concerned in such manner as the
court may direct, and disobedience thereto shall be punished
as contempt. An execution may issue for any damages or
costs awarded in accordance with section 1 of Rule 39.
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Civpro | Premid Notes
Note: Judgment of the court shall be served upon the court,
quasi-judicial agency, tribunal, corporation, board or officer in
such manner as the court may direct. Disobedience thereto is
punishable as contempt. Execution may issue for any
damages or costs awarded.

2008 Bar: Compare the certiorari jurisdiction of the

Supreme Court under the Constitution with that under
Rule 65 of the Rules of Civil Procedure. (4%)
The certiorari jurisdiction of the Supreme Court under the
Constitution is the mode by which the Court exercises its
expanded jurisdiction, allowing it to take corrective action
through the exercise of its judicial power. Constitutional
certiorari jurisdiction applies even if the decision was not
rendered by a judicial or quasi-judicial body; hence, it is
broader than the writ of certiorari under Rule 65, which is
limited to cases involving a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government and there is no
other plain and speedy remedy available to a party in the
ordinary course of law.

Bar Q: In 1996, Congress passed RA 8189, otherwise known

as the Voter’s Registration Act of 1996, providing for
computerization of elections. Pursuant thereto, the COMELEC
approved the Voter’s Registration and Identification System
(VRIS) Project. It issued invitations to pre-qualify and bid for
the project. After the public bidding, Fotokina was declared
and was issued a Notice of Award. But COMELEC Chairman
Gener Go objected to the award on the ground that under the
Appropriations Act, the budget for the COMELEC’s
modernization is only P1 billion. He announced to the public
that the VRIS project has been set aside. Two Commissioners
sided with Chairman Go, but the majority voted to uphold the
contract.

Meanwhile, Fotokina filed with the RTC a petition for

mandamus to compel the COMELEC to implement the
contract. The Office of the Solicitor General (OSG),
representing Chairman Go, opposed the petition on the
ground that mandamus does not lie to enforce contractual
obligations. During the proceedings, the majority of
Commissioners filed a manifestation that Chairman Go was
not authorized by the COMELEC En Banc to oppose the
petition.

Is a petition for mandamus an appropriate remedy to

enforce contractual obligations?
No, the petition for mandamus is not an appropriate remedy
because it is not available to enforce a contractual obligation.
Mandamus is directed only to ministerial acts, directing or
commanding a person to do a legal duty

231
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Civpro | Premid Notes
COLLATERAL ATTACK OF A JUDGMENT
How do you attack a judgment which is void?
It depends:
a. When the judgment is null and void on its very face, the
judgment may be attacked
a. Directly
b. Collaterally
b. When the nullity is not apparent on the face of the
judgment, the judgment can only be directly attacked
What is a collateral attack?
A collateral attack is made when, in another action to obtain
a different relief, an attack on the judgment is made as an
incident in said action. This is 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.
Meaning, there is no need for me to file a case but I can invoke
its nullity anytime because a judgment which is void on its
very face can be attacked at anytime, in any manner
anywhere.
EXAMPLE of Collateral attack: You are moving to execute a
judgment. I will oppose the execution on the ground that the
judgment is void. That is collateral attack. I’m just saying that
the judgment cannot be enforced because it is null and void.
But I never filed a direct action to declare its nullity. That can
be done if the judgment is void on its very face.
Another example: A petition for certiorari under Rule 65 is a
direct attack. It is filed primarily to have an order annulled. An
action for annulment of a judgment is likewise a direct attack
on a judgment. A motion to dismiss a complaint for collection
of a sum of money filed by a corporation against the
defendant on the ground that the plaintiff has no legal
capacity to sue is a collateral attack on the corporation. A
motion to dismiss is incidental to the main action for sum of
money. It is not filed as an action intended to attack the legal
existence of the plaintiff
What is a direct attack?
By direct attack means you must file an action to declare its
nullity. So there must be a case for its annulment.
Again, when the judgment is null and void on its face, (1) you
may file a direct action to annul it under Rule 47. Or, (2) it can
also be attacked collaterally, a direct attack is not necessary.
A collateral attack will suffice.
EXAMPLE: RTC decided a forcible entry. By simply reading the
decision, obviously the RTC has no jurisdiction. Therefore, I
can attack it directly by filing a case for its annulment under
Rule 47. OR, I will not file a case under Rule 47 but I will
attack it collaterally. Meaning, bayaan ko lang. I will raise that
issue during execution. If you move for execution, I can
oppose, “You cannot execute because the RTC has no
jurisdiction over the case. Therefore, the judgment is void.”
So it is not necessary to file a case to declare the decision as
null and void. That is collateral attack.
But if the judgment is not void on its face but the nullity is
intrinsic or nakatago – not obvious ba – the rule is, you must
file a direct action for its annulment which must be done
before the action is barred by laches or estoppel. So it is
necessary to file a case for annulment of judgment under Rule
47.
Bayocboc notes as amended by KGM
Bayog v Natino
A final and executory judgment may be set aside in three
ways:
1. By petition for relief from judgment under Rule 38
2. When the judgment is void for want of jurisdiction, by
direct attack, by certiorari, annulment of judgment or by
collateral attack
3. When the judgment was obtained by fraud and Rule 38
cannot be applied anymore
Distinction between a direct attack from a collateral
attack
A direct attack of a judgment is made through an action or
proceeding, the main object of which is to annul, set aside or
enjoin the enforcement of such judgment, if not yet carried
into effect; or if the property has been disposed of, the
aggrieved party may sue for recovery. A collateral attack is
made when, in another action to obtain a different relief, an
attack on the judgment is made incident in said action. This is
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.
An earlier case explains:
“Under existing rules there are three ways by which
a final and executory judgment may be set aside.
The first is by petition for relief from judgment under
Rule 38 of the Revised Rules of Court, when
judgment has been taken against the party through
fraud, accident, mistake or excusable negligence, in
which case the petition must be filed within sixty (60)
days after the petitioner learns of the judgment, but
not more than six months after such judgment was
entered. The second is by direct action to annul and
enjoin the enforcement of the judgment. This
remedy presupposes that the challenged judgment
is not void upon its face, but is entirely regular in
form, and the alleged defect is one which is not
apparent upon its face or from the recitals contained
in the judgment. Xxx the third is either a direct
action, as certiorari, or by a collateral attack against
the challenged judgment which is void upon its face,
or that the nullity of the judgment is apparent, by
virtue of its own recitals x x x.” (Macabingkil v PHHC,
72 SCRA 326, 343; emphasis supplied)
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Civpro | Premid Notes
RULE 39. EXECUTION, SATISFACTION AND EFFECT OF
JUDGMENTS
Execution is the remedy afforded for the satisfaction of a
judgment. Its object being to obtain satisfaction of the
judgments on which the writ is issued. It is the fruit and end
of the suit, and is the life of the law.
It would be useless if there is judgment but you cannot
enforce the same.
Judge Q: In my opinion, this is a crucial part of the
proceedings because this is where the prevailing party will be
able to have his victory converted from it being a mere victory
on paper but in fulfillment or realization of his victory and that
it is through execution. It is also essential for a party to be
able to comply with the proceedings involving execution and
satisfaction of judgment. It is the ministerial duty of the
court to execute.
Writ of execution
A writ of execution is a judicial writ issued to an officer
authorizing him to execute a judgment of the court.
Unlike in the judgment and final order, the dispositive portion
directs the parties, but the writ of execution is a command
given to the officer of the court, usually the sheriff, to execute
the judgment by virtue of such writ and such writ is proof of
his authority to execute the judgment on behalf of the
prevailing party. So a writ is a sort of directive or command
to that particular court officer.
Part of the judgment to be executed
1. The dispositive portion (also called fallo) of the judgment
is that part which is subject to execution under Rule 39
of the Rules of Court.
2. Jurisprudence considers this portion of the judgment as
that which finally vests rights upon the parties, sets
conditions for the exercise of those rights, and imposes
the corresponding duties and obligations. Hence, if there
is a conflict between the dispositive portion of the
decision and the body thereof, the dispositive portion
controls irrespective of what appears in the body.
Difference between finality of judgment for purpose of
appeal; for purposes of execution
The term “final” when used to describe a judgment may be
used in two senses. In the first, it refers to a judgment that
disposes of a case in a manner that leaves nothing more to
be done by the court in respect thereto. In this sense, a final
judgment is distinguished from an interlocutory order which
does not finally terminate or dispose of the case. Since the
finality of a judgment has the effect of ending the litigation,
an aggrieved party may then appeal from the judgment.
Under Sec. 1, Rule 41, an appeal may be taken from a
judgment or final order that completely disposes of the case.
Under the same rule, an appeal cannot be taken from an
interlocutory order.
In another sense, the word “final” may refer to a judgment
that is no longer appealable and is already capable of being
executed because the period for appeal has elapsed without
a party having perfected an appeal or if there has been
appeal, it has already been resolved by a highest possible
tribunal (PCGG vs. Sandiganbayan, 455 SCRA 526). In this
sense, the judgment is commonly referred to as one that is
final and executory.
Bayocboc notes as amended by KGM
When the judgment becomes final and executory,
what are the effects?
The finality of a judgment produces three effects to wit:
1. The prevailing party is entitled to have the judgment
executed as a matter of right and the issuance of the
corresponding writ of execution becomes a ministerial
duty of the court.
Judge Q: Take note because we have to distinguish between
the ministerial duty or whether the court is required to
exercise its discretion because if a judgment becomes final
and executory, it becomes a matter of right and hence, any
motion initiated by the prevailing party, the court has no other
action on such motion but to grant it because it is ministerial
in nature.
2. The court rendering the judgment loses jurisdiction over
the case so that it can no longer correct the judgment in
substance, except to make corrections of clerical errors
and omissions plainly due to inadvertence or negligence.
If after the judgment is rendered, you file a motion for
reconsideration or new trial, there is a possibility for the
court to change its mind and its judgment. But once the
judgment has become final, the court has no more power
to change its judgment substantially. The error will also
become final, you can no longer change anything
substantial.
XPN: There is one type of judgment which can be
changed substantially even long after it became final as
an exception to this rule. In the study of Persons,
Judgment for Support. The judgment for support, which
can be modified at any time because the obligation to
give support depends not only on the resources of the
obligor, but also on the ever-changing needs of the
obligee.
Example: The father refuses to support his minor child.
After trial, the court orders the father to support the child
at P1,000 per month. Four years later, the father is
already well-off and the child is already in nursery or
kindergarten. So the child tells his lawyer that the amount
for support must be increased from P1,000 to P5,000.
The father says, “the court said P1,000 and if you change
that to P5,000, that would be substantial.”
The father is wrong. The amount for support can be
changed anytime. In the same manner. The amount can
also be lowered, as when the father loses his job.
Judge Q: The court no longer has any authority to modify
its judgment even if it can be classified later on as an
error of judgment. This is an important concept because
that is the purpose of the procedure in declaring the
judgment as final so as not to reopen the proceedings
once again. So the intention of the procedure is to put an
end to litigation and there is no more opportunity for the
parties to somehow have a recourse or ventilate any of
the issues because it has already been disposed of so
once the decision becomes final, the court already loses
its jurisdiction.
In fact, immutability of the judgment of the court but if
there are some errors that are purely clerical, a judgment
may be modified notwithstanding its finality so if it plainly
due to negligence and there is a need to rectify, this is
somehow sort of an exception to the rule. But in a very
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few cases, one of which, is the judgment on support, this
is also an exception, that even if it becomes final, the
court has authority to amend its judgment particularly the
amount of support.
3. Res judicata supervenes.
The same cause of action between the same parties can
never be the subject matter of another litigation in the
future. Any subsequent case is barred by prior judgment.
Judge Q: So just remember these 3 effects.
When execution shall issue
1. It is settled that upon finality of the judgment, the
prevailing party is entitled, as a matter of right, to a writ
of execution to enforce the judgment, the issuance of
which is a ministerial duty of the court
The right to execution is compellable by mandamus. This
is in accordance with the doctrine of immutability of final
judgments, which states that, as a rule, a judgment that
has become final and executory is immutable and
unalterable, and may no longer be modified in any
respect. The denial of execution of judgment is a ground
for mandamus because execution is a ministerial duty of
the court.
2. As a rule, parties are not allowed to object to the
execution of a final judgment. One exception is when the
terms of the judgment are not clear enough and there
remains room for interpretation. If the exception applies,
the adverse party may seek the stay of execution or the
quashal of the writ of execution.
Who will enforce the judgment?
The very same court which rendered the judgment.
Execution shall be applied for in the court of origin. If an
appeal has been duly perfected and finally resolved, the
execution may be applied for also in the court of origin on
motion of the judgment obligee. (Sec. 1) In filing a motion for
execution of an appealed judgment, there is no need to wait
for the records of the case to be remanded to the court of
origin. All that is required is for the appeal to have been duly
perfected and finally resolved before execution may be
applied for.
This is because when the judgment obligee files a motion for
execution in the court of origin, all he has to do is to attach
the certified true copies of (a) the judgment of the appellate
court, and (b) the entry of said judgment (Sec. 1) even if the
records have not as yet been remanded to the court of origin.
This procedure prevents needless delays in the execution of
the judgment. If for whatever reason, the execution cannot
be had with dispatch in the court of origin, the new rules
likewise afford the judgment obligee a remedy. He may file a
motion with the appellate court to direct the court of origin, in
the interest of justice, to issue the writ of execution (Sec.1).
Writ of execution to a judicial writ issued to an officer
authorizing him to execute the judgment of the court.
How is execution generally done?
It is generally done by filing a motion for execution by the pre-
vailing party and the court will then issue an order of
execution, which will be followed with a writ of execution, and
the sheriff will enforce the judgment.
Bayocboc notes as amended by KGM
When you file a motion for execution in the court that
rendered judgment, do you have to notify the losing
party? Do you have to furnish them a copy of your
motion in order for them to attend?
The answer is no because there he has no more standing
there in court. Once he lost, no more. He should not be
notified anymore.
There is no need for him to be notified because he is supposed
to know that there is already a judgment – because he
received the judgment – but he allowed the period to appeal
to expire, so that means he’s ready to face the consequences;
he’s ready to pay what is ordered by the court.
How can the court issue the order when it has already
lost jurisdiction over the case because from what we
have learned here is that, one of the effects of the
finality of judgment is that the court loses jurisdiction
over the case. And when the court loses jurisdiction, it
can no longer act on the case. So, how can it still issue
orders in that case when actually, once the judgment
becomes final and executory, the trial court loses
jurisdiction over the case and it can no longer act in
that case?
What is meant by that statement is that, the court can no
longer change the judgment. That is why new trial and
reconsideration is not anymore available in this stage. The
judgment is beyond the power of the court to change or alter.
BUT definitely the court can act on that case for the purpose
of enforcing its judgment because it is absurd to claim that a
trial court has the power to try and hear a case but once the
judgment has already become final, it has no more power to
enforce it. If you will really describe jurisdiction in its complete
aspect, we can say jurisdiction is “the power of the court to
act on the case, to try, to decide and to enforce its judgment.”
That would be more complete. Because enforcement is part
of the court's jurisdiction.
Judge Q: Rationale: How can a court still issue an order when
it has already lost its jurisdiction
It is understood that the inherent power of the court, although
not specifically mentioned in the Rules, it is part of his inherent
power not only to hear and decide and render its decision but
also to enforce the same so that is the rationale why he can
still act on the motion for execution because it is part of its
inherent power to enforce its decision.
The description of the jurisdiction of the court in its complete
aspect should be stated as follows: the power of the court to
act on the case, to try, to decide and to enforce its judgment.
This is a more complete description of the court’s jurisdiction.
So that’s the basis why he still has the authority to act on the
motion.
Against whom shall the execution issue?
Generally, execution can issue only against a (losing) party to
the case and not against one who is a complete stranger
because majority of judgments are in personam. They are
only enforceable against the parties themselves or their
successors-in-interest – people who derive their rights from
him. And a judgement can never be enforced against a
complete stranger who never had his day in court.
What is the subject matter of the execution? How
would you do that?
Carefully read the dispositive portion or the wherefore clause.
From there, you can already determine how and what is the
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scope of the execution. That is why judges should also be
careful in crafting their decisions so as not to allow any room
of ambiguity and also, direct to the point. Simple and clear,
so it can be easily understood.
Where to File Motion for Execution
1. Court of origin
2. Appealed case
Court of origin
Where will you file your motion for execution of
judgment? In the RTC or in the CA?
In the RTC, the court of origin. It is not the appellate court
that will issue the writ of execution.
Do you have to inform the losing party of your motion
for execution in the RTC in this appealed case?
The answer is yes. This time, you have to notify the other
party because the RTC may even conduct a hearing on your
motion for execution.
The reason why you have to notify the losing party is because
there might be some supervening events that transpired while
the case is pending that would make the execution inequitable
or not right anymore. There might be something that
happened because of the lapse of time – events or
circumstances that may change the situation of the parties.
So, he must be notified, and he has the right to object and
explain to the court why execution must not be granted.
When can you file it?
Under the 1997 Revised Rules, the prevailing party need not
wait for the records of the case to be returned to the RTC
from the CA. All he has to do is to secure a certified true copy
of the decision of the CA, and he can attach to his motion,
and
the RTC can already entertain his motion for execution.
Appealed Case (When Motion for Writ of Execution May be
Filed with the CA)
You can file your motion for writ of execution in the CA if the
RTC, which is the court of origin, is dilly-dallying the issuance
of the writ.
You can go to the CA, and the CA will issue an order directing
the RTC to immediately issue the writ of execution. The CA
will not be the one to issue the writ of execution. They will not
issue the writ of execution. They will only order the RTC to act
accordingly and issue the writ. So, it’s still the RTC who will
issue the writ of execution.
Writ of execution must conform with judgment
The writ of execution must conform to the dispositive portion
of the decision to be executed and the execution is void if it is
in excess of and beyond the original judgment or award for it
is a settled general principle that a writ of execution must
conform strictly to every essential particulars of the judgment
promulgated.
Thus, if the judgment does not provide for the payment of
interest, the writ of execution cannot modify the judgment by
requiring the judgment obligor to pay interest. That part of
the writ imposing interest is void.
Grounds for Quashal of Writ of Execution
1. It was improvidently issued
a. For instance, the court has not yet issued an order for
execution and then a writ was issued or if in case the
Bayocboc notes as amended by KGM
court issued an order denying the motion and then it
followed that a writ was issued by the COC thinking
that the court granted the motion so that is an
improvident issuance of the writ.
2. It is defective in substance
3. It is issued against the wrong party
4. The judgment was already satisfied
a. The judgment debtor did not wait for the execution.
He automatically made payment and there was an
acknowledgment of the payment.
5. It was issued without authority
6. There is a change in the situation of the parties making
the execution inequitable or unjust.
a. You remember the example I gave, ejectment case
wherein the occupant was adjudged at he losing party
and the lessor was the prevailing party and thereafter,
while the appeal was pending, in the meantime, the
owner mortgaged it and it was foreclosed and the
occupant became the owner because he is the
purchaser in the foreclosure sale. So if there is already
a change of the situation wherein the losing party is
now the new owner, it would be absurd to enforce the
writ of execution against him, he now being the
proper owner.
7. The controversy was never validly submitted to the court
a. If it can be ascertained that the subject of the writ
was not one of the issues so it is a deviation from the
judgment.
8. The writ of execution varies the terms of the judgment
a. As what I’ve said, then any execution conducted is a
nullity.
9. It is enforced against property exempt from execution
a. The Rules also provide of a list of properties that are
exempt from execution. In all cases, the most
common is the family home is exempt from execution.
Essential requisites of a writ of execution
1. It must conform strictly to the decision or judgment which
gives it life
2. It cannot vary the intent of the judgment it seeks to
enforce.
Kinds/Classes of Execution
As to Nature
1. Execution as a matter of right (compulsory)
2. Execution as a matter of judicial discretion
As to Enforcement
1. By motion
2. By independent action
Execution as to Nature
Execution as a matter of right
Section 1. Execution upon judgments or final orders. –
Execution shall issue as a matter of right, on motion, upon a
judgment or order that disposes of the action or proceeding
upon the expiration of the period to appeal therefrom if no
appeal has been duly perfected.
If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for in the court of origin,
on motion of the judgment obligee, submitting therewith
certified true copies of the judgment or judgments or final
order or orders sought to be enforced and of the entry thereof,
with notice to the adverse party.
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The appellate court may, on motion in the same case, when
the interest of justice so requires, direct the court of origin to
issue the writ of execution. (As amended by Cir. No. 24-94.)
Judge Q: There is no execution motu proprio. It is always on
motion of the interested party. It becomes final and executory
if the period to appeal has already lapsed without the filng of
the appeal.
Do not be deceived by the statement that it is “immediately
executory.” Because in all cases, it must be through the
initiative of the prevailing party so only through the proper
motion notwithstanding the language of the decision.
What are the conditions for compulsory execution?
1. If a judgment has disposed already of the action or
proceeding, then it can be executed.
2. The period to appeal has expired and no appeal has been
filed/ taken from the judgment.
Under the first condition, if a judgment has disposed already
of the action or proceeding then it can be executed because
if the judgment or order has not yet disposed of the action or
proceeding, that is called an interlocutory judgment or order.
One of the effects of finality of a judgment under Rule 36 is
that the prevailing party is entitled to have the judgment
executed as a matter of right. And it is the ministerial duty of
the court to execute its own judgment. So once the judgment
has become final, all that the winner or prevailing party has
to do is to file an action in court for execution, the court has
to issue.
When the law says it is a matter of right upon a judgment or
order that disposes the action or proceeding, it means that
after the judgment was rendered, there is nothing more for
the court to do because its job is over. Therefore, if there is
something more that the court can do, as a rule, you cannot
execute. That is why conditional judgments, incomplete
judgments cannot be executed.
Under the second condition, we must wait for the period to
appeal to expire before we can move for execution. So, if the
period to appeal has not yet expired, then we cannot execute
the judgment.
Once a judgment becomes final and executory, the prevailing
party can have it executed as a matter of right, and the
issuance of a writ of execution becomes the ministerial duty
of the court. Once a decision becomes final and executory, it
is the ministerial duty of the presiding judge to issue a writ of
execution except in certain cases, as when subsequent events
would render execution of judgment unjust.
Judgments and orders become final and executory by
operation of law and not by judicial declaration. The trial court
need not even pronounce the finality of the order as the same
becomes final by operation of law. Its finality becomes a fact
when the reglementary period for appeal lapses, and no
appeal is perfected within such period.
Considering that the case was elevated on appeal and
the records of the appeal has been forwarded to the
appellate court, is there a need to wait for the records
of the case to be transmitted back to the Court of
Origin before the prevailing party be allowed to file a
motion for execution?
Bayocboc notes as amended by KGM
Sec. 1 2nd par. Specifically states that the filing of a motion for
execution would be sufficient by submitting a certified true
copy of the judgment or final order sought to be enforced and
the entry thereof, with notice to the adverse party.
So the judgment we are talking about is the judgment of the
appellate court. It could be one which affirmed or modified
the judgment of the lower court.
Is there an exception to this rule?
Third paragraph offers the exception. First two paragraphs is
in the court of origin but in the case of the third paragraph, it
is the appellate court which can do so. So, the order emanates
from the appellate court but it is still the lower court which
issues the corresponding writs. But, since this is an exception
to the rule, it must be proven that there is a compelling reason
to do so. When the interest of justice so requires.
May the court refuse to execute a judgment on the
ground that the judgment was wrong or erroneous?
NO, because it is a matter of and the issuance of the
corresponding writ of execution upon a final and executory
judgment is a ministerial duty of the court to execute which is
compellable by mandamus. The principle is: No matter how
erroneous a judgment may be, so long as the lower court had
jurisdiction over the parties and the subject matter in
litigation, (in short the judgment is valid), the said judgment
is enforceable by execution once it becomes final and
executory. The error also becomes final. If it is erroneous, the
remedy is to appeal, otherwise the error becomes final as well.
GR: Judgment is enforceable by execution once it becomes
final and executory.
XPN:
1. When there has been a change in the situation of the
parties, which makes the execution inequitable
2. When it appears that the controversy has never been
submitted to the judgment of the court
3. When the judgment was novated by subsequent
agreement of the parties
4. When it appears that the writ of execution has been
improvidently issued
5. When the writ of execution is defective in substance
6. When the writ of execution is issued against the wrong
party
7. When the judgment debt has been paid or otherwise
satisfied
8. When a petition for relief from judgment is filed, and a
writ of preliminary injunction is issued
9. When the judgment has become dormant and the five-
year period to enforce it by a mere motion has expired
10. When the judgment is incomplete
11. When the judgment has already been executed by the
voluntary compliance thereof by the parties
12. When execution is sought more than five years from its
entry without the judgment having been revived
13. When the judgment sought to be executed is conditional
14. When refusal to execute judgment has become
imperative in the higher interest of justice
When there has been a change in the situation of the parties,
which makes the execution inequitable
There has been a supervening event that happened which
makes execution inequitable.
EXAMPLE: There was a case where A filed a case to eject B
from his property and B lost the case and there was a
judgment ordering him to vacate the property of A. But while
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the case was going on, A mortgaged his property to the bank.
In the meantime, he failed to pay his loan and the bank
foreclosed the mortgage. So the property was sold at public
auction. And at the auction sale, B, the one occupying it,
bought the property. The owner now is B. But there is a final
judgment ejecting him. Now, shall we insist on the judgment
ejecting B? No because B is now the owner. The fact that B
became the owner is a supervening event.
Take note however that for the supervening event to apply,
the supervening event must happen after the judgment has
become final and executory. Not that the supervening event
happened while the case was going on. If the case is going
on and something happened which you believe would make
the decision against you unfair, your duty is to bring it to the
attention of the court so that the court deciding the case
would take that into consideration.
The Court, in the case of Valenzona v CA held that, “While the
rule is that a stay of execution of a final judgment may be
authorized if necessary to accomplish the ends of justice, as
for instance, where there has been a change in the situation
of the parties which makes such execution inequitable,
nevertheless the said rule cannot be invoked when the
supposed change in the circumstances of the parties took
place while the case was pending, for the reason that there
was then no excuse for not bringing to the attention of the
court the fact or circumstance that affects the outcome of the
case.”
When the judgment was novated by subsequent agreement
Can the parties enter into a compromise agreement
when there is already a decision?
Yes. Compromise agreement is welcome anytime- before the
case is filed, while the case is going on, while the case is on
appeal.
Now suppose there is a decision in my favor against
you and then you approach me and say “Can we just
talk about this?” Then we arrive at another agreement
which we signed, where the agreement is different
from the decision in my favor. Can it be done?
Yes, I can waive my rights under the judgment. There is now
a new agreement between us.
Can I execute on the original judgment?
Not anymore because the new agreement novated the
judgment. Take note that in case of novation, the new
obligation must be totally incompatible with the first
obligation.
Can one court by injunction or restraining order stop
the execution of a judgment of another court?
GR: No, because that will amount to interference.
XPN: (1) Rule 38, Section 5; (2) when there is an action for
annulment of judgment of the RTC filed in the CA
Is there another instance where a judgment may be
executed as a matter of right?
Yes, when the losing party appealed the RTC decision to the
CA and the CA affirmed the decision of the RTC. Kung may
appeal, the judgment is not final, you cannot execute. The
case is now in the CA, the CA decided in your favor, the RTC
judgment was affirmed and the CA decision has also become
final and executory. So you can now execute.
How do you execute in that situation?
Bayocboc notes as amended by KGM
That is now covered by the second and third paragraphs of
Section 1.
Is there another instance when execution becomes a
matter of right?
Yes. It is found in Section 4.
GR: If there is an appeal, the judgment will be stayed.
XPN: Judgments in actions for injunction, receivership,
accounting, support, judgment declared to be immediately
executory.
Is there another instance when execution becomes a
matter of right?
Yes, under Rule 70-a judgment of the MTC in a forcible entry
or unlawful detainer case is immediately executory even if it
is not yet final and executory.
Judge Q: Once the court issues a judgment in favor of the
plaintiff, there is already an order under Rule 70 that it is
immediately executory even if there is a pending appeal by
the defendant. The only way the execution can be prevented
for execution is through filing a supersedeas bond by the
defendant.
To Summarize:
When is execution a matter of right?
1. Section 1, paragraph 1- no appeal; judgment becomes
final
2. Section 1, paragraph 2- there is an appeal, once the CA
judgment becomes final
3. Section 4- judgment in an action for injunction,
receivership, accounting, support, judgment declared to
be immediately executory
4. Rule 70-judgments in forcible entry and unlawful detainer
cases
Discretionary Execution
Section 2. Discretionary execution. –
(a) Execution of a judgment or final order pending appeal. –
On motion of the prevailing party with notice to the adverse
party filed in the trial court while it has jurisdiction over the
case and is in possession of either the original record or the
record on appeal, as the case may be, at the time of the filing
of such motion, said court may, in its discretion, order
execution of a judgment or final order even before the
expiration of the period to appeal. After the trial court has lost
jurisdiction, the motion for execution pending appeal may be
filed in the appellate court. Discretionary execution may only
issue upon good reasons to be stated in a special order after
due hearing.
(b) Execution of several, separate or partial judgments. – A
several, separate or partial judgment may be executed under
the same terms and conditions as execution of a judgment or
final order pending appeal.
Note: Here, there is already a judgment, but the judgment
has not yet become final. The reglementary period to appeal
has not yet expired. So, you can ask for execution of a
judgment even though that judgment has not yet become
final if there is a valid ground for discretionary execution.
So here, it’s called execution as a matter of judicial discretion,
because it is within the discretion of the court.
Concept of discretionary execution
The concept of discretionary execution constitutes an
exception to the general rule that a judgment cannot be
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executed before the lapse of the period for appeal or during
the pendency of an appeal. A discretionary execution is called
“discretionary” precisely because it is not a matter of right.
The execution of a judgment under this concept is addressed
to the discretionary power of the court. Unlike judgments that
are final and executory, a judgment subject to discretionary
execution cannot be insisted upon but simply prayed and
hoped for because a discretionary execution is not a matter of
right.
A discretionary execution like an execution pending appeal
must be strictly construed because it is an exception to the
general rule. It is not meant to be availed of routinely because
it applies only in extraordinary circumstances. It should be
interpreted only insofar as the language thereof fairly
warrants, and all doubts should be resolved in favor of the
general rule. Where the execution is not in conformity with
the rules, the execution is null and void.
Note: The Court of Appeals, has no authority to issue
immediate execution pending appeal of its own decisions
therein. Discretionary execution is allowed pending appeal
only on a judgment of the trial court upon good reason to be
stated in a special order. A judgment of the CA cannot be
executed pending appeal. Good reasons have been held to
consist of compelling circumstances that justify immediate
execution, less the judgment becomes illusory.
Why?
Out of respect to the Supreme Court. When the case is already
pending appeal before the SC, nobody should touch it. Only
the SC has exclusive control or supervision over the case.
Requisites for discretionary execution
a. There must be a motion filed by the prevailing party with
notice to the adverse party
i. With more reason that notice must be given or to
satisfy the due process requirement because you are
asking an extraordinary relief
b. There must be good reasons to justify the discretionary
execution
i. Good reasons consist of compelling circumstances
justifying immediate execution, lest judgment
becomes illusory, that is, the prevailing party’s
chances for recovery on execution from the judgment
debtor are altogether nullified.
ii. The “good reason” yardstick imports a superior
circumstance demanding urgency that will outweigh
injury or damage to the adverse party and one such
“good reason” that has been held to justify
discretionary execution is the imminent danger of
insolvency of the defeated party.
iii. The sufficiency of “good reasons” depends upon the
circumstances of the case and the parties thereto.
c. The good reasons must be stated in a special order after
due hearing.
i. The court must justify the execution pending appeal.
The order itself must state the good reason why it
allowed execution pending appeal.
d. There must be a hearing of the motion for discretionary
execution
i. This is an exception. If it is a motion for execution
pending appeal and if it calls for the discretion of the
court, it is a requirement that there must be hearing
of the motion.
What will happen if there are no good reasons?
Bayocboc notes as amended by KGM
The writ of execution is void because it does not state why
you are executing a judgment. And remember that execution
pending appeal is the exception rather than the rule. And
there is a possibility that the judgment in your favor will be
reversed on appeal.
Good reasons for the court to grant execution pending appeal
1. Where the lapse of time will make the judgment
ineffective
2. Where the appeal is clearly dilatory
3. Where the judgment is for support
4. Where the article subject of the case would deteriorate
5. Where the defendants are exhausting their income
6. Where the judgment debtor is in imminent danger of
insolvency
7. Where the prevailing party is of advanced age
Judge Q: Thus, in these cases decided by the Court,
circumstances must be superior outweighing the injury or
damages that might result, should the losing party secure a
reversal of the judgement, of course, it would be prejudicial
to the appellant, the person or the party who appealed the
case, if in the event that (he will emerge as the winning) - if
he is able to asked to secure a reversal of the judgement. So
what’s the point of appealing if the judgement has already
been executed, why it was still a pending appeal.
So in a lot of cases, the Supreme Court allowed or sort of
affirmed the decision of the lower court to execute the
judgement pending appeal. In the case of Lao vs. Mencias,
the Court approved or granted the motion for execution
pending appeal, as it was well established that the judgement
debtor, the losing party, the person who is directed to satisfy
the judgement is on the verge of insolvency. And if execution
will be delayed, then the judgement in favor of the winning
part will become illusory, would become useless. It will only
be reduced to a paper victory or an empty victory. So given
the circumstances, it is imperative that execution may be
allowed pending appeal.
Also in another interesting case of Fortune Guarantee and
Insurance Corporation vs COA, the Court allowed execution
pending appeal because it is a judgement awarding or
allowing for a monetary award of 2M + interest in favor of the
electric cooperative because the main case stemmed from its
claim from the insurer, regarding the damage costs due to a
natural calamity. Since this was covered in their insurance
policy, they instituted a claim against the insurance company
and because of the refusal, they were forced to seek the
Court’s intervention and eventually they emerged as the
winning party and then the award was to, for the insurance
company to pay 2M pesos + interest and incidental damages.
Aggrieved with the decision of the lower court, the insurance
company appealed the decision of the court. In the meantime,
while the appeal was pending, the electric cooperative filed a
motion for execution citing the importance of restoring their
facilities so that it can provide electricity, a very important
utility to its subscribers or to its consumers. The court, in
favoring the motion for execution reasoned, that the need for
these customers of the electric cooperative to be, for their
power to be restored the soonest possible time can be
classified as a good reason for the execution of the judgement
pending appeal, without prejudice of course, as to the
outcome of the case on appeal. But this is one of the instances
wherein the court will allow execution even if it is a pending
appeal so this is one good example of a discretionary appeal.
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Civpro | Premid Notes
In another case also, Federation of United NAMARCO
Distribution vs. Court of Appeals, the court said, “The fact that
the goods subject of the judgement will perish or deteriorate
during the pendency of the appeal because these are
consumable goods is reason enough to grant execution
pending appeal because this is one of the instances wherein
the judgement in favor of the plaintiff would become
ineffective, when the delivery of the goods would have to wait
until the appealed case will be resolved and it will take a
longer period of time. So it is in the interest of the plaintiff
that immediate execution will follow, notwithstanding the
pendency of the appeal.” So I think you get the idea of these
instances that will be classified as good reasons. So as a rule,
it should not be issued but there are exemptions. This is the
beauty of studying law, the exceptions rather than the rule.
Now, also in another related provision, in unlawful detainer
cases, the failure of an unlawful detainer case that make the
required periodic deposits to cover the amount of rentals due
under the contract or for payment of the reasonable value of
the use and occupation of the premises. Or the failure to post
a supersedeas bond may be good reasons to allow execution
pending appeal. So that is an express provision under the
rules for unlawful detainer cases, to require periodic deposits
even if the issue of being liable to pay the same is still one of
the major issues on appeal. The court will allow execution of
that judgement and that is by virtue of provision under the
rules, Section 19 Rule 70. So what then are the requisites for
discretion nearly execution as provided in Section 2 of Rule
39? (Please refer to enumeration found above)
Frivolous appeal as reason for discretionary execution
Where the sole reason given by the trial court in allowing
execution is that the appeal is frivolous and dilatory, execution
pending appeal cannot be justified because the authority to
disapprove an appeal pertains to the appellate court. Mere
allegation that the appeal is dilatory is not a good reason to
merit discretionary execution.
Financial distress as reason for discretionary execution
The fact that the prevailing party is in financial distress is also
not in itself a good reason to justify execution pending appeal.
Can there be two or more judgments arising out of one
case?
Yes (Sections 4 and 5 of Rule 36)
Can the first judgment be immediately executed while
waiting for rendition of the second judgment?
Generally, the court will decide. If the court agrees, there has
to be a good reason.
Remedy of Certiorari
If the court grants the discretionary execution, the losing
party may avail of certiorari if such discretionary execution is
granted without basis.
What are the instances wherein execution is allowed?
Pending appeal- execution is allowed. Another instance, if
there is no perfected appeal yet, while the trial court has
jurisdiction over the case, it can be filed in the trial court. But
if it has lost jurisdiction because the appeal has been
perfected and the records has been transmitted to the
appealing court, then execution will be made with the
appealing court. Or if in cases where execution can be made
with respect to judgement that can be separated or there is
partial judgement just like a recorded appeal. So, execution
can be made so far as the partial judgement is considered.
Bayocboc notes as amended by KGM
Where to file an application for discretionary
execution?
The motion for discretionary execution shall be filed with the
trial court, the court that issued the judgement while it has
jurisdiction over the case and while it is in possession of the
original record or the record on appeal but if the trial court
has lost jurisdiction, the motion for execution pending appeal
may be filed in the appealing courts.
How to Prevent Execution Pending Appeal
Section 3. Stay of discretionary execution. –
Discretionary execution issued under the preceding section
may be stayed upon approval by the proper court of a
sufficient supersedeas bond filed by the party against whom
it is directed, conditioned upon the performance of the
judgment or order allowed to be executed in case it shall be
finally sustained in whole or in part. The bond thus given may
be proceeded against on motion with notice to the surety.
Note: By offering a supersedeas bond. However, the filing of
a supersedeas bond does not entitle the judgment debtor to
the suspension of execution as a matter of right. Hence,
where the needs of the prevailing party are urgent, the court
can order immediate execution despite such supersedeas
bond.
Judge Q: Section 3 provides for stay of discretionary
execution. It says discretionary execution issued under the
preceding section may be stayed upon approval by the proper
court of a sufficient supersedeas bond, filed by the party
against whom it is directed, conditioned upon the
performance of the judgement or order allowed to be
executed in case it shall be finally sustained in whole or in
part. The bond thus given may be preceded against on motion
with notice to the surety. This presupposes that the court
already considers that execution may be allowed while the
appeal is pending however the losing party the one who
appealed have the option of moving for the execution be
stayed or enjoined and he can only seek approval of his
motion to stay the execution.
What he’s actually saying is “Can you please do not proceed
with execution because there is a pending appeal?” But since
the Court already agrees with the movant that execution will
be proper in this case because of good reason, he can still
prevent the execution by putting up a bond known as
supersedeas bond, a bond that would guarantee to answer for
any damage that the prevailing party may incur by virtue of
the stay of execution, meaning to say, he was unable to
execute the decision therefore not being able to take
advantage of the situation at that particular time when
execution would be necessary at that time. If he lost that
opportunity because of the stay of execution, whatever
damage he incurred, in case the judgement will be affirmed
or sustained meaning the appellant – the one who appealed
the case lost the appeal in other words the judgement has
been sustained therefore the plaintiff or the winning party is
really entitled for execution then the bond will answer for
whatever – the performance of a judgement and if unable, if
it proves that execution will no longer be feasible when the
judgement has been issued on appeal then the winning party
can proceed against the bond upon motion. So this is that
condition, before stay of execution will be allowed, there must
be a supersedeas bond conditioned upon the performance. If
it cannot be executed already then the prevailing party can go
after said bond.
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Civpro | Premid Notes
GR: When a defendant puts up a supersedeas bond, the court
shall recall the execution pending appeal because
discretionary execution is the exception rather than the
general rule.
XPN: Notwithstanding the filing of the supersedeas bond by
the appellant, execution pending appeal may still be granted
by the court IF THERE ARE SPECIAL AND COMPELLING
REASONS justifying the same outweighing the security offered
by the supersedeas bond.
Example of Exception: Judgment for support. The same may
be executed pending appeal even notwithstanding the filing
of a supersedeas bond by the appellant. Support is something
which should not be delayed. What is the use of the
supersedeas bond when the need of the plaintiff is today and
not 5 or 6 weeks from now?
Judgment Not Stayed By Appeal (IRAS)
Section 4. Judgments not stayed by appeal. –
Judgments in actions for injunction, receivership, accounting
and support, and such other judgments as are now or may
hereafter be declared to be immediately executory, shall be
enforceable after their rendition and shall not be stayed by an
appeal taken therefrom, unless otherwise ordered by the trial
court. On appeal therefrom, the appellate court in its
discretion may make an order suspending, modifying,
restoring or granting the injunction, receivership, accounting,
or award of support.
The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or
protection of the rights of the adverse party.
Judgments not stayed by appeal
1. Injunction
2. Receivership
3. Accounting
4. Support
The rule, however, that the above judgments are immediately
executory and not stayed by an appeal, is not absolute
because the court is authorized to order otherwise. Also on
appeal therefrom, the appellate court in its discretion may
make an order, suspending, modifying, restoring or granting
the injunction, receivership, accounting or award of support.
Note: Failure to comply with the requirements to stay
execution entitles the plaintiff to execution of the plaintiff.
Judge Q: It’s only upon the order of the appellate court that
the execution is stayed but if there is no order, if it is
immediately executory, it is a matter of right of the prevailing
party even if there is an appeal filed. For example, in an
injunction case, the lower court decided in favor of the plaintiff
and ordered the defendant from entering into the property of
the plaintiff. That’s the dispositive portion and then the
defendant appealed to the appellate court. Since there is an
appeal, the order, as a rule will not be executory but because
of Section 4, the plaintiff has the right to file a motion for
execution notwithstanding the appeal, because of the express
provision under this particular rule. Even if there is a pending
appeal, it will not allow the defendant to continue with his act
in trespassing of the property of the plaintiff. So, that’s an
example.
Execution By Motion or By Independent Action
Section 5. Effect of reversal of executed judgment. –
Where the executed judgment is reversed totally or partially,
Bayocboc notes as amended by KGM
or annulled, on appeal or otherwise, the trial court may, on
motion, issue such orders of restitution or reparation of
damages as equity and justice may warrant under the
circumstances.
Judge Q: If it will be proven that the losing party is not liable
so there is and there was execution made during the
pendency of the appeal, the court will order him to return
restitution or to indemnify or damages incurred that was the
result of the execution pending appeal.
Section 6. Execution by motion or by independent
action. – A final and executory judgment or order may be
executed on motion within five (5) years from the date of its
entry. After the lapse of such time, and before it is barred by
the statute of limitations, a judgment may be enforced by
action. The revived judgment may also be enforced by motion
within five (5) years from the date of its entry and thereafter
by action before it is barred by the statute of limitations.
How do you execute a motion?
You file a motion for execution before the same court which
rendered the judgment.
How is the execution enforced?
Under Section 6, there are 2 modes:
1. Execution by motion- within 5 years from the date of its
entry
2. Execution by independent action if the five-year period to
execute by motion has elapsed with no motion having
been filed and before it is barred by the statute of
limitations.
Execution by Motion
Execution BY MOTION means that the prevailing party shall
ask the court to issue a writ of execution by simply filing a
motion in the same case.
Example: I am the plaintiff and I have a judgment here
against the defendant. I do not know of any assets of the
defendant because the defendant for the meantime is as poor
as a rat. But after a certain period of time he becomes a
wealthy man. All I have to do is to file a motion and the court
will order the execution, provided the motion is filed within 5
years from the date of the entry of judgment. The date of the
entry of judgment and the date of finality are the same.
Judge Q: The date of entry, as we already know, is not the
actual date when it was transcribed in the record of
judgement. It will in fact retroact to the day when the
judgement became final. So if it is within the 5-year period
from the date or the entry of judgement transpired, the
execution can be made through a motion filed by the winning
party. If beyond the 5-year period, or the 5-year period has
elapsed and before it is barred by statute of limitations, which
is 10 years, so the statute of limitations for execution of
judgement, meaning to say it is barred forever, is after 10
years after the date of entry. And under Section 6, as it is
being worded, after the lapse of such time and before it is
barred by statute of limitations, a judgement may be enforced
by action. When you say by action, it is not technically a
continuation of the proceeding that resulted to the judgement
or final order. It is an independent action, a separate ordinary
action and it is a complaint – a complaint should be filed and
the prayer is a revival of the action. It has to be emphasized
that the date of finality of judgement or final order shall be
deemed to be the date of its entry, but the provision says that
entry of judgement actually means the date of finality after
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Civpro | Premid Notes
the period to appeal has lapsed or when the appellate decision
has become final. Once a judgement becomes final and
executory, the prevailing party can have it executed as a
matter of right and the issuance of a writ of execution
becomes a ministerial duty of the court.
It is axiomatic that once a decision abstains finality, it
becomes the law of the case regardless of any claim that it is
erroneous. I believe that I discussed this last time, that
whatever error that the court made in making this decision
becomes conclusive to the parties because the decision has
now become final and it is also an effect to the parties who
were unable to avail of the remedies provided for by the law.
If there is an error of judgement, there is always a mode of
seeking relief but if the parties fail to seek relief within the
allowed the period, then the error becomes conclusive on the
parties. They have no choice but to accept even if it is
erroneous. The judgement may no longer be altered even at
the risk of occasional, legal infirmities and errors. So it
supports the principle of once the decision becomes final, it
becomes immutable - immutability of judgements, it can no
longer be modified saved for instances where it may be
allowed, it will serve as exceptions. Now, as what I’ve said, it
is a requirement that judgement be executed that a motion
must first be filed, it is not automatic, it is not self-executing
because the prevailing party or the winning party must still file
a motion to that effect. Motion is indispensable even if the
judgement is immediately executory.
Lifetime of the writ of execution
The writ shall continue in effect during the period within which
the judgment may be enforced by motion (Sec. 14). Hence,
the writ is enforceable within the five-year period from entry
of judgment as provided for in Sec. 6 because within that
period, the writ may be enforced by motion. This is an
amendment to the old rule (Sec. 11 R 39) which provided that
the lifetime of the writ was 60 days from the receipt of the
writ by the officer required to enforce it.
Judge Q: It is also within 5 years from the date of entry if it is
made by a motion or even after 5 years but before it is barred
by a statute of limitation so if it is within the period for revival
of judgment.
So in one case, just to cite, the court said, “If the writ of
execution is different from the judgment or even exceeds the
term of the judgment, it is a nullity and may be quashed on
motion. Any proceedings conducted by virtue of that defective
writ will be nullified. If there is an execution sale, it shall be
nullified.”
Suppose the defendant becomes rich after 5 years, can
I still file a motion to execute?
No more, because execution by motion must be filed within 5
years only from the date of its entry. If the judgment was not
executed within the 5-year period, the judgment has become
dormant.
A writ of execution issued by motion of the prevailing party
after five (5) years from the date of entry of the judgment is
null and void. There is then a need for the prevailing party to
file an independent action for the revival of the judgment
before the action is barred by the statute of limitations.
What is a dormant judgment?
A dormant judgment is one that was not executed within 5
years.
Bayocboc notes as amended by KGM
Revival of Judgment
An action for revival of judgment is no more than a procedural
means of securing the execution of a previous judgment which
has become dormant after the passage of 5 years without it
being executed upon motion of the prevailing party. It is not
intended to reopen any issue affecting the merits of the
judgement debtor’s case nor the propriety or correctness of
the first judgement. One might have an impression since it is
a complaint, it will now allow the other party to question the
merits disposed of by the court in the original case, that is not
allowed because it will result to the reopening of the issues
which is already unnecessary. An action for revival of
judgement is a new and independent action different and
distinct from the recovery and property, or the main case
wherein the cause of action is the decision itself and not the
merits of the action upon which the judgement sought to be
enforced is rendered.
The action must be filed within 10 years from the date the
judgment became final since the action to enforce a judgment
prescribes in 10 years from the finality of judgment.
Judge Q: The law allows for the lapse of the 5-year period in
order to give an opportunity to the prevailing party, who at
that time has no means for its execution due to some
constraints. So the court will give him a grace period of 5
years, however, after the lapse of 5 years he still has a chance
to execute the judgement in his favor but only through an
independent action. Execution of a judgement can no longer
be effected by filing a motion after 5 years, the remedy would
be to file an independent action for the revival of a judgement.
When a writ of execution is issued by motion after 5 years,
from the date of entry of judgement, such motion is
considered null and void and have no effect. In fact, an
execution- actual execution made because of the defective
motion, meaning the motion was filed beyond the 5-year
period, execution can be nullified, can be questioned by the
losing party since the execution under the circumstances is
null and void, or have no legal effect. However, the court in
certain instances may allow execution even beyond the lapse
of the 5-year period, but in very rare occasions.
In one case, the Court allowed for the filing of the motion
beyond the 5 year period because the delay in the execution
of the judgement was because of causes that are attributable
to the judgement debtor himself. Perhaps in cases when the
judgement debtor would make some representation to the
winning party, the judgement creditor, not to pursue the
execution because in the meantime, he is trying to find means
to settle his obligation and execution at this point will be
impractical, probably was able to convince the judgement
creditor to defer any action for executions and it turned out
that his request would prove to be fruitless. I mentioned
earlier that after the lapse of 5 years, the judgement becomes
dormant.
So how can that dormant judgment be awakened?
The procedure is to file another civil action. A civil action for
revival of judgment. That is what you call EXECUTION BY
INDEPENDENT ACTION which must be filed before it is barred
by the statute of limitations. The second sentence states,
“after the lapse of such time (which is 5 years) and before it
is barred by the statute of limitations, a judgment may be
enforced by action.”
Judge Q: This is costlier because this is considered an original
action.
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Civpro | Premid Notes
Actually, the action for a revival of judgement only involves
very simple issues, whether or not it has complied with the
requirements pursuant to rule 39. There’s no issue really if
there is ground to base an action for revival other than the
fact that it was made beyond the 5-year period. You cannot
even question why he failed to execute within 5 years because
the law, the rules already provide that it is his prerogative or
option to file a revival of judgement of a dormant judgement
– revival of a dormant judgement.
In other words, there is no room in an action for a revival of
judgement, no room for any issues involving the main case or
the original case. Revival of judgement is premised on the
assumption that the decision to revive either by motion or
independent action is already final and executory.
When will it be barred by the statute of limitations?
According to Article 1144 of the New Civil Code, the judgment
may be enforced only within ten (10) years.
The ten-year period commences to run from the finality of the
judgment which is the period within which the judgment can
be enforced (Art. 1152 in relation to Art. 1144[3], Civil Code).
Because under the Rules, the date of the finality of the
judgment or final order shall be deemed to be the date of
entry (Sec. 2 R 36) the period shall run also from the date of
entry of the judgment.
An action for revival of judgment presupposes that the same
can no longer be enforced by mere motion. This means that
from the date of the finality of the judgment no motion was
filed for the execution of said judgment, thus, the need for its
enforcement by action.
The action for revival of judgment is no more than a
procedural means of securing the execution of a previous
judgment which has become dormant after the passage of five
years without it being executed upon motion of the prevailing
party.
The action to revive a judgment must be filed within ten years
from the date the judgment becomes final because an action
to enforce a judgment prescribes in ten years from the finality
of the judgment (Art. 1144[3] in relation to Art. 1152, Civil
Code of the Philippines). Since the date of the finality of the
judgment or final order shall be deemed to be the date of the
entry (Sec. 2 R 36), the prescriptive period shall run from the
date of entry of the judgment.
When a judgment is revived under Section 6, such revived
judgment may also be enforced by motion within 5 years from
the date of its entry and thereafter by action also before it is
barred by the statute of limitations.
Illustration: First judgment became final in 1990. You can
enforce that until 2000 by motion (1990-1995) or by
independent action (1995 – 2000). Suppose in 2000, you were
able to secure a second judgment reviving the first judgment,
under the new rules, there is another ten years. The first
judgment by motion. The next 5 years is by independent
action. So, to illustrate:
Bayocboc notes as amended by KGM
Revived judgment a new judgment
A revived judgment is deemed a new judgment separate and
distinct from the original judgment. It is not a continuation of
the original judgment. The action to revive the judgment is a
new action and results in a new judgment constituting a new
cause of action with a new period of limitation. Hence, the ten
(10) year period to revive the revived judgment shall
commence to run from the date of the finality of the revived
judgment and not from the date of finality of the old, original
judgment
If the prevailing party fails to have the decision enforced by a
motion after the lapse of five years from the date of entry of
the judgment, the said judgment is reduced to a right of action
which must be enforced by the institution of the complaint in
a regular court within ten years from the time the judgment
became final.
Suppose you decided to execute the judgment on the
8th year, you filed an action for the revival of the
judgment in court. If the court grants it, when can you
execute the judgment and how?
You can enforce that within 5 years on a mere motion. You
still have until the 13th year (8+5 years) to file a motion for
the revival of judgment.
If you failed to file such motion on the 13th year, can
you file a second motion for revival of judgment?
In the case of Bondoc, the court said yes but this was later
abandoned in the case of PNB v Deloso and Luzon Surety v
IAC. In these two case, the court said you can no longer file
a second action for revival of judgment. HOWEVER, these two
cases were later on abandoned by the 1997 Rules of Civil
Procedure. Section 6, Rule 39 reiterated the Bondoc ruling
where the revived judgment may also be enforced by motion
within 5 years from the date of its entry and thereafter by
action before it is barred by the statute of limitations.
According to the Bondoc ruling, when the court revives the
judgment in the 8th year after it becomes final, the order of
the court reviving the judgment is a new judgment itself which
can be enforced by a mere motion within 5 years and by
another action for revival after 5 years but not more than 10
years. So on and so forth.
Action for revival not to reopen any issue affecting the merits
of the judgment
An action for revival of judgment is not intended to reopen
any issue affecting the merits of the judgment debtor’s case
nor the propriety or the correctness of the first judgment. It
is a new and independent action wherein the cause of action
is the decision itself and not the merits of the action upon
which the judgment sought to be enforced is rendered (Juco
vs. Heirs of Tomas Siy Chung Fu GR 150233 February 16,
2005; Saligumba vs. Palanog, supra). It is an “original action,
242
Civpro | Premid Notes
not a mere incident of the primitive suit or a mere auxiliary or
supplemental remedy”
The purpose of the new action is not to reexamine and retry
issues already decided and the cause of action of this new
action is the judgment to be revived and no identity of causes
of action can be said to exist between the first and the second
actions. The consideration of any issue affecting matters that
could have been raised in the previous case must be deemed
as definitely foreclosed. It is not meant to retry the case all
over again.
Venue of revival of judgment action
“... the proper venue depends on the determination of
whether the present action for revival of judgment is a real
action or a personal action ... if the action for revival of
judgment affects title to or possession of real property, or
interest therein, then it is a real action that must be filed with
the court of the place where the real property is located. If
such action does not fall under the category of real actions, it
is then a personal action that may be filed with the court of
the place where the plaintiff or defendant resides...”
Judge Q: Now in one interesting case, in Infante vs. Aran
Builders Inc., the original action involved the execution of a
deed of sale because it turned out that the Makati Court ruled
in favor of the plaintiff which was asking for the conveyance
of the property involved. So the main case involves an action
in rem, involving title 2 of a real property. At that time, both
parties were residence of Mandaluyong but at that time
Mandaluyong has no RTC yet. By the time that the judgement
became final and the execution would only be made through
a revival of judgement, the plaintiff – the prevailing party in
that case, filed an action for a revival of judgement in
Mandaluyong because this time there is already a RTC in
Mandaluyong at that time. The contention of the defendant
rather, the contention really is that since there’s an RTC in
Mandaluyong, the action for revival should have been filed in
the RTC in Mandaluyong. That’s the contention of the
defendant. The court siding or affirming the arguments of the
plaintiff, because the revival of judgement was filed in RTC
Makati where the property is located ruled that the proper
venue for the revival of judgement depends on whether the
original action involves an action in person am or action in
rem. Judging from the dispositive portion of the final
judgement, it is for conveyance of a property through an order
coming from the defendant to issue a deed of sale and to
deliver the property to the plaintiff. Since it is an action in rem,
it should be filed with the court having, where the property is
located. So it has been settled already that in actions for
revival of judgement the venue is based on whether the
action– original action is in rem or in person.
When the five-year period to execute by motion may be
interrupted
In many instances, the delays in the execution of the
judgment were through causes clearly attributable to the
judgment debtor as when he employs legal maneuvers to
block the enforcement of the judgment. Delays attributable to
the defendant have the effect of suspending the running of
the prescriptive period for the enforcement of the judgment
There are instances where the Court allowed execution by
motion even after the lapse of five years upon meritorious
grounds. These exceptions have one common denominator,
and that is, the delay is caused or occasioned by actions of
the judgment debtor and/or is incurred for his benefit or
advantage. It has been held that in computing the time limit
Bayocboc notes as amended by KGM
for enforcing a final judgment, the general rule is that the time
when the execution is stayed, either by agreement of the
parties for a definite time, by injunction, or by the taking of
an appeal or writ of error, shall not be included. Thus, the
time during which execution is stayed should be excluded, and
the said time will be extended by any delay occasioned by the
debtor as when the writ of execution cannot be enforced
within the five-year period because the debtor filed petitions
in the CA and in the SC challenging the trial court’s judgment
as well as the writ of execution. Such petitions suspended or
interrupted the further enforcement of the writ
The period may also be interrupted by the agreement of the
parties to suspend the enforcement of the judgment
When 5 and 10 year periods do not apply
1. Special proceedings, such as land registration and
cadastral cases, wherein the right to ask for a writ of
possession does not prescribe
2. Judgments for support which do not become dormant
and which can always be executed by motion despite
lapse of the five-year period because the obligation is a
continuing one and the court never loses jurisdiction to
enforce the same
Discuss briefly the nature of the action for
enforcement of a dormant judgment.
The action for enforcement of a dormant judgment is an
ordinary civil action the object of which is two-fold, namely,
a. To revive the dormant judgment
b. To execute the judgment reviving it, if it grants the
plaintiff any relief
Hence, the rights of the judgment-creditor depend upon the
second judgment. Being an ordinary civil action, it is subject
to all defenses, objections and counterclaims which the
judgment-debtor may have except that no inquiry can be
made as to the merits of the first judgment. Therefore,
defenses that do not go to the merits of the first judgment,
such as lack of jurisdiction, collusion, fraud, or prescription,
may be set up by the judgment-debtor.
What is the exception to the rule on dormant
judgment?
The only exception is the judgment for support which does
not become dormant, nor does it prescribe. You can execute
it anytime even beyond the 5-year period and any unpaid
installment may be executed by motion. So, even if the
judgment is more than 5 years old, the defendant defaulted
on the seventh year, you just file a motion to collect that
judgment.
Suppose the judgment was executed and the property
of the defendant was levied on the 4th year, and the
next stage is the auction sale.
The SC said the auction sale must also be WITHIN 10 years.
So, even if the property was levied, the auction sale must be
within 10 years. Not only the levy of the property must be
done within 10 years but also the including the auction sale,
otherwise, any auction sale done beyond 10 years in null and
void.
Bar Q: A filed the Metropolitan Trial Court (MTC) of Manila an
action for specific performance against B, a resident of
Quezon City, to compel the latter to execute a deed of
conveyance covering a parcel of land situated in Quezon City
having an assessed value of P19,000. B received the summons
and a copy of the Complaint on 02 January 2003. On January
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Civpro | Premid Notes
2003, B filed a motion to dismiss the complaint on the ground
of lack
of jurisdiction contending that the subject matter of the suit
was incapable of pecuniary estimation. The court denied the
motion. In due time, B filed with the RTC a petition for
certiorari praying that the said Order be set aside because the
MTC had no jurisdiction over the case.
On 13 February 2003, A filed with the MTC a motion to declare
B in default. The motion was opposed by B on the ground that
his Petition for Certiorari was still pending. (6%)
a. Was the denial of the MTD the Compliant correct?
b. Resolve the motion to declare the defendant in
default.
a. The denial of the Motion to Dismiss the Complaint was
not correct. Although the assessed value of the parcel of
land involved was P19,000, within the jurisdiction of the
MTC of Manila, the action filed by A for Specific
Performance against B to compel the latter to execute a
Deed of Conveyance of said parcel of land was not
capable of pecuniary estimation and, therefore, the action
was within the jurisdiction of the RTC.
Bar Q: A filed a case against B. While awaiting decision on
the case, A goes to the United States to work. Upon her return
to the Philippines seven years later, A discovered that a
decision was rendered by the court in her favor a few months
after she had left. Can A file a motion for execution of
the judgment? Reason briefly. (5%)
No, A cannot file a motion for execution of the judgment seven
years after the entry of the judgment. She can only do that
within five (5) years from entry of judgment. However, she
can file a case for revival of the judgment, which can be done
before it is barred by the statute of limitations (Rule 39,
Section 6) which is within ten (10) years from the date of
finality of the judgment
To summarize:
Mode When Enforced
By Motion Within 5 years from the date
of entry of the judgment
By independent action After the lapse of five years
from the date of entry and
before it is barred by the
statute of limitations (10
years from the date of
entry)
Execution In Case of Death of a Party
Section 7. Execution in case of death of party. – In case
of the death of a party, execution may issue or be enforced in
following manner:
(a) In case of the death of the judgment obligee, upon the
application of his executor or administrator, or successor in
interest;
(b) In case of the death of the judgment obligor, against his
executor or administrator or successor in interest, if the
judgment be for the recovery of real or personal property, or
the enforcement of a lien thereon;
(c) In case of the death of the judgment obligor, after
execution is actually levied upon any of his property, the same
may be sold for the satisfaction of the judgment obligation,
and the officer making the sale shall account to the
corresponding executor or administrator for any surplus in his
hands.
Bayocboc notes as amended by KGM
Note: It depends on who died and it depends on the kind of
judgment:
1. If the judgment was favorable rendered to the plaintiff
who died- can be enforced by his executor or
administrator
Judge Q: Because once a person dies, the proper proceeding
should be the settlement of his estate, should be initiated
before a provide court, who has jurisdiction if there is judicial
settlement. If there is judicial settlement, it is with the
jurisdiction of the provide court, the probate court will then
appoint an administrator if there is no will, but if there is a will
and there is a decedent, the one who died, appointed a person
who will act as an administrator is called an executor. Or if
there is no executor or administrator appointed yet because it
would take longer period to appoint by a provide court, it
could be the successor in interest – could be his surviving
spouse or next in kin. So once the judgement creditor dies, it
is now the duty of the executor/administrator to move for the
execution of the judgement, either by motion or independent
action.
So there is no difficulty when it comes to judgement creditor.
2. If the losing party died- the prevailing party may still ask
for execution which shall be enforced against the
executor or administrator of the deceased losing party
Judge Q: An action or a claim should be made against his
executor/administrator or successor in interest.
If it is a money judgment
Death of judgment obligor- after execution is actually levied
upon any of his property, the same may be sold for the
satisfaction of the judgment obligation, and the officer making
the sale shall account to the corresponding executor or
administrator for any surplus in his hands.
If it is a case for collection of sum of money where the
defendant died after judgment, the plaintiff cannot ask for a
writ of execution. What he should do is bring the judgment in
his favor to the administrator or executor of the defendant
and present it as a money claim.
However, if the defendant died after a motion for execution
has already been granted and the sheriff has already levied
the property of the defendant, the execution sale will proceed.
The sheriff will account for the proceeds of the sale to the
executor.
Judge Q: If you compare this to letter B, if there is no levy yet
and the action is for recovery for real or personal property,
execution can be made against the estate/administrator. A
claim can be made against the e/a, however if it is only a sum
of money, execution for a sum of money, execution will not
issue, the judgement obligee or the judgement creditor should
file a claim against the estate of the judgement obligor under
rule 86, meaning to say he will participate in the settlement
of the estate, in the probate proceedings before the court, to
claim a money judgement but it only applies to an action for
sum of money, when it is a money claim. Money claim
meaning collection of sum of money, there’s already a
judgement in favor of the creditor. So the judgement creditor
now, will not go against the e/a, he will file a money claim in
the probate proceedings, that’s the distinction there. Whereas
it is for recovery of real/personal property or an action rather
than a monetary claim, execution can be made against the
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Civpro | Premid Notes
executor or administrator. Of course, for obvious reasons,
execution could no longer be made against the judgement
debtor, he’s already dead, so you go after the administrator
who will act as his representative. Alright, I hope that’s clear,
you make the distinction.
Forms and Contents of a Writ of Execution
Section 8. Issuance, form and contents of a writ of
execution. – The writ of execution shall:
(1) issue in the name of the Republic of the Philippines from
the court which granted the motion;
(2) state the name of the court, the case number and title,
the dispositive part of the subject judgment or order; and
(3) require the sheriff or other proper officer to whom it is
directed to enforce the writ according to its terms, in the
manner hereinafter provided:
(a) If the execution be against the property of the judgment
obligor, to satisfy the judgment, with interest, out of the real
or personal property of such judgment obligor;
(b) If it be against real or personal property in the hands of
personal representatives, heirs, devisees, legatees, tenants,
or trustees of the judgment obligor, to satisfy the judgment,
with interest, out of such property;
(c) If it be for the sale of real or personal property, to sell such
property, describing it, and apply the proceeds in conformity
with the judgment, the material parts of which shall be recited
in the writ of execution;
(d) If it be for the delivery of the possession of real or personal
property, to deliver the possession of the same, describing it,
to the party entitled thereto, and to satisfy any costs,
damages, rents, or profits covered by the judgment out of the
personal property of the person against whom it was
rendered, and if sufficient personal property cannot be found,
then out of the real property; and
(e) In all cases, the writ of execution shall specifically state
the amount of the interest, costs, damages, rents, or profits
due as of the date of the issuance if the writ, aside from the
principal obligation under the judgment. For this purpose, the
motion for execution shall specify the amounts of the
foregoing reliefs sought by the movant.
Writ of Execution
WRIT OF EXECUTION is actually the document which is issued
by the court addressed to the sheriff. The writ is actually the
instruction to the sheriff on what he should do. It would
depend on what kind of decision.
Judge Q: A judicial writ is issued directing an officer and
authorizing him to execute the judgement of the court.
Execution therefore is the fruit and end of the suit and is the
life of the law. A judgement that is left unexecuted is nothing
but an empty victory for the prevailing party. So as what I’ve
said, it is very important on the part of the prevailing party to
see to it or to monitor that the procedure that is being
observed or that will transpire is a conformity to the rules.
So it is also important that the writ must be compliant with
the form, because the writ if it does not conform to the rules
may be quashed, and what is the consequence of a writ that
is being quashed? It cannot be enforced because the losing
party will also try its best to prevent any form of execution
and if it has good reason or good ground to question it, of
course it will grab the opportunity aided by his council. That
is where you can already see or observe the strategies or
maneuverings of a trial of a practitioner. That’s how a lawyer
can earn his keep, within the bounds of the law, if a lawyer is
worth his salt and is knowledgeable of the procedure
particularly in the execution phase, he will always use the law
Bayocboc notes as amended by KGM
to his advantage that is why it is very crucial, that’s why on
the part of the court, see to it that – on the part of the
prevailing party, he must also be keen that the writ of
execution issued by the court should be compliant with the
procedure.
Important: The important amendment now is that the writ
shall specifically state the exact amount of the principal,
interest, costs, damages, rents, profits due as of the date of
the issuance of the writ. Since you are the interested party,
you should be the one to compute and your computation
should be incorporated in your motion for issuance of the writ
of execution.
The writ shall only state the dispositive portion of the decision
and not the entire body.
It shall contain a specific instruction for the sheriff on how to
execute the judgment.
Judge Q: It shall also require the sheriff, or other proper
officer to whom it is directed to enforce the writ according to
its terms and the manner of execution is another thing. In
fact, this is an occupational part of hazard for sheriff, it is
already a norm that sheriffs are facing administrative cases
because of artists wanting to vindicate their rights by
questioning the proceedings made by the sheriff. The sheriff
should also be knowledgeable and be very careful in
execution. He must see to it that the objective or the
dispositive part of the decision must be observed.
What are the manners of execution?
Please refer to Section 8, Rule 39 (a)- (e).
Judge Q: That is why it is important for a lawyer to see to it
that in his motion for execution, he must be very specific to
ask for the execution of the judgment because typically the
judgment may just state indeterminate amount apart from the
principal obligation, he might state an indeterminate amount
such as 6% annually so for a proper execution, the lawyer
must also indicate specifically the amount that is due for
execution.
In certain cases, there is also a special kind of writ known as
writ of possession meaning placing the property in the hands
of a party. So what are these cases? In the case of Mabale v
Apalisoc: (1) land registration proceedings; (2) extra-judicial
foreclosure of real estate mortgage; (3) judicial foreclosure of
mortgage as well as (4) execution sale. So if a person is
considered as a purchaser in an execution sale he is now the
owner of the subject property being the purchaser so if the
property is still in the possession of the judgment debtor, the
court will now issue a writ of possession so that the purchaser
will acquire possession of the property. That’s the purpose of
the writ, just to have the force of law against ta judgment
debtor because typically, the judgment debtor will always
resist, being an uninterested party especially after judgment
is being issued against him.
Bar Q: A obtained a money judgment against B. After the
finality of the decision, the court issued a writ of execution for
the enforcement thereof. Conformably with the said writ, the
sheriff levied upon certain properties under B’s name. C filed
a third-party claim over said properties claiming that B had
already transferred the same to him.
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Civpro | Premid Notes
A moved to deny the third-party claim and to hold B and C
jointly and severally liable to him for the money judgment
alleging that B had transferred said properties to C to defraud
him (A).
After due hearing, the court denied the third-party claim and
rendered an amended decision declaring B and C jointly and
severally liable to A for the money judgment. (4%)
Suggested Answer: No, C has not been properly impleaded as
a party defendant. He cannot be held liable for damages
against A without a trial. In fact, since no bond was filed by
B, the sheriff is liable to C for damages. C can file a separate
action to enforce his third- party claim. It is in that suit that B
can properly raise the ground of fraud against C. However,
the execution may proceed where there is a finding that the
claim is fraudulent. Besides, judgment is already final.
Execution of a Money Judgment
Section 9. Execution of judgments for money, how
enforced. –
(a) Immediate payment on demand. – The officer shall
enforce an execution of a judgment for money by demanding
from the judgment obligor the immediate payment of the full
amount stated in the writ of execution and all lawful fees. The
judgment obligor shall pay in cash, certified bank check
payable to the judgment obligee, or any other form of
payment acceptable to the latter, the amount of the judgment
debt under proper receipt directly to the judgment obligee or
his authorized representative if present at the time of
payment. The lawful fees shall be handed under proper
receipt to the executing sheriff who shall turn over the said
amount within the same day to the clerk of court of the court
that issued the writ.
If the judgment obligee or his authorized representative is not
present to receive payment, the judgment obligor shall deliver
the aforesaid payment to the executing sheriff. The latter shall
turn over all the amounts coming into his possession within
the same day to the clerk of court of the court that issued the
writ, or if the same is not practicable, deposit said amounts to
a fiduciary account in the nearest government depository bank
of the Regional Trial Court of the locality.
The clerk of said court shall thereafter arrange for the
remittance of the deposit to the account of the court that
issued the writ whose clerk of court shall then deliver said
payment to the judgment obligee in satisfaction of the
judgment. The excess, if any, shall be delivered to the
judgment obligor while the lawful fees shall be retained by the
clerk of court for disposition as provided by law. In no case
shall the executing sheriff demand that any payment by check
be made payable to him.
(b) Satisfaction by levy. – If the judgment obligor cannot pay
all or part of the obligation in cash, certified bank check or
other mode of payment acceptable to the judgment obligee,
the officer shall levy upon the properties of the judgment
obligor of every kind and nature whatsoever which may be
disposed of for value and not otherwise exempt from
execution giving the latter the option to immediately choose
which property or part thereof may be levied upon, sufficient
to satisfy the judgment. If the judgment obligor does not
exercise the option, the officer shall first levy on the personal
properties, if any, and then on the real properties if the
personal properties are insufficient to answer for the
judgment.
Bayocboc notes as amended by KGM
The sheriff shall sell only a sufficient portion of the personal
or real property of the judgment obligor which has been levied
upon. When there is more property of the judgment obligor
than is sufficient to satisfy the judgment and lawful fees, he
must sell only so much of the personal or real property as is
sufficient to satisfy the judgment and lawful fees.
Real property, stocks, shares, debts, credits, and other
personal property, or any interest in either real or personal
property, may be levied upon in like manner and with like
effect as under a writ of attachment.
(c) Garnishment of debts and credits. – The officer may levy
on debts due the judgment obligor and other credits, including
bank deposits, financial interests, royalties, commissions and
other personal property not capable of manual delivery in the
possession or control of third parties. Levy shall be made by
serving notice upon the person owing such debts or having in
his possession or control such credits to which the judgment
obligor is entitled. The garnishment shall cover only such
amount as will satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the court within
five (5) days from service of the notice of garnishment stating
whether or not the judgment obligor has sufficient funds or
credits to satisfy the amount of the judgment. If not, the
report shall state how much funds or credits the garnishee
holds for the judgment obligor. The garnished amount in cash,
or certified bank check issued in the name of the judgment
obligee, shall be delivered directly to the judgment obligee
within ten (10) working days from service of notice on said
garnishee requiring such delivery, except the lawful fees
which shall be paid directly to the court.
In the event there are two or more garnishees holding
deposits or credits sufficient to satisfy the judgment, the
judgment obligor, if available, shall have the right to indicate
the garnishee or garnishees who shall be required to deliver
the amount due; otherwise, the choice shall be made by the
judgment obligee.
The executing sheriff shall observe the same procedure under
paragraph (a) with respect to delivery of payment to the
judgment obligee.
Execution of Judgments for Money, How Enforced
1. Sheriff to demand payment
The judgment obligor shall pay in cash, certified bank check
payable to the judgment obligee, or any other form of
payment acceptable to the latter. Personal check is not
allowed.
Another option is dacion en pago. If the judgment creditor is
willing to accept, there is no problem. If he cannot pay, the
sheriff will proceed to the 2nd stage which is satisfaction by
levy.
Judge Q: So it is expedient if at the time of execution, he
(sheriff) is accompanied by the judgment obligor because the
option of the manner of paying rests on the fact that it is
acceptable to the judgment creditor.
2. Satisfaction by levy
The officer shall levy upon the properties of the judgment
obligor of every kind and nature whatsoever which may be
disposed of for value and not otherwise exempt from
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Civpro | Premid Notes
execution giving the latter the option to immediately choose
which property or part thereof may be levied upon, sufficient
to satisfy the judgment.
If in the RD naay titulo ang judgment obligor didto, the sheriff
will tatak it with “levy on execution of judgment” so buyers
beware. Sometimes, you will see appliances such as
refrigerators and even motorcycles in court. These things
have been levied by the sheriff on execution.
Here, personal property shall first be levied before real
property.
Judge Q: The property is in custodial egis. So this time, it is
now the option of the judgment debtor. If the judgment
obligor does not want to participate because he is indifferent
to the levy, the officer shall first levy on the personal
properties, if in case he has a jet ski then he can levy said
property. If there is none, the sheriff will then levy on the real
property if the personal property is insufficient.
So it’s always important for an execution sale to be valid, there
must be a proper levy. If personal property, can be seized
right then and there. If real property, levy can be made by
submitting a copy of the writ and notice of levy with the
registry of deeds where the property is located and it will be
annotated at the back of the title.
3. Garnishment of debts and credits
The officer may levy on debts due the judgment obligor and
other credits, including bank deposits, financial interests,
royalties, commissions and other personal property not
capable of manual delivery in the possession or control of third
parties.
The sheriff may go to the debtor of the judgment debtor and
garnish the amount that he is supposed to pay to the latter.
Most common example is the garnishment of bank deposit.
When a writ of garnishment is served on a bank, the bank will
have to answer within 5 days.
Judge Q: I remember one time when I was still connected
with a bank and I was one of the legal officers, there was a
very important issue with an LGU who was a depositor.
Judgment was issued against the LGU, when the mayor got
wind of the fact of the judgment, he immediately sent a latter
notifying us that any attempt to garnish shall be resisted,
practically warning us that if we will heed the order of
garnishment, he will be forced to withdraw so what
happened? Eventually, we received the notice of garnishment
and we had no choice but to deliver or we will be cited in
contempt so what happened next? The next week, they
withdrew their money. So it’s very crucial for the banks to
comply with a court order, that’s how important the order /
execution of judgment is. The rules already provide different
modes of satisfaction.
To summarize
The sheriff should demand from the judgment obligor the
immediate payment in cash, certified bank check or any other
mode of payment acceptable to the judgment obligee. If the
judgment obligor cannot pay by these methods immediately
or at once, he can exercise his option to choose which of his
property can be levied upon. If he does not exercise this
option immediately or when he is absent or cannot be located,
he waives such right, and the sheriff can now first levy his
Bayocboc notes as amended by KGM
personal properties, if any, and then the real properties if the
personal properties are insufficient to answer for the
judgment.
What happens if the creditor is not around?
Under the 2nd paragraph of Section 9 (a), the payment is made
to the sheriff and he is supposed to endorse it to the clerk of
court. The clerk of court will look for the obligee to remit the
money.
In the second sentence, this usually happens if the execution
is to be done outside of the locality.
Suppose the cash is insufficient. What will the sheriff
do?
He shall levy upon the properties of the judgment of the
judgment obligor not otherwise exempt from execution.
Define levy.
Levy is the act whereby a sheriff sets apart or appropriates,
for the purpose of satisfying the command of the writ, a part
or the whole of the judgment-debtor’s property
What is the importance of levy with respect to
execution of a money judgment?
Levy is a pre-requisite to the auction sale. In order that an
execution sale may be valid, there must be a previous valid
levy. A sale not preceded by a valid levy is void and the
purchaser acquires no title.
A levy upon real property is made by the officer by performing
two specific acts: (a) filing with the Register of Deeds a copy
of the order, description of the attached property and notice
of attachment; and (b) leaving with the occupant of the
property copy of the same order, description and notice. Non-
compliance with any of these requisites is fatal because a
special statutory provision respecting the manner of carrying
out levy of attachment must be strictly complied with and
departure therefrom shall invalidate the levy.
Judge Q: A lawful levy on execution is indispensable to a valid
sale on execution. Unless it is preceded by a valid levy, the
execution sale is void and the purchaser acquires no title to
the property sold. When we say execution sale, it is an auction
sale. Hence, it shall not transmit title thereto since the
proceedings conducted are void then there is no right that can
stem from an invalid act.
What kind of property can be levied?
Any- real, personal, tangible, intangible- except those
properties exempt from execution
Does the debtor have the right to tell the sheriff what
property he should levy?
Yes. The law gives the debtor or defendant the option to
immediately choose which property or part thereof may be
levied upon sufficient to satisfy the judgment. Example: I am
the debtor and I have many properties. And the sheriff would
like to levy on my house and lot, or ‘yung Toyota Altis ko.
Under the law, I have the right to choose among them.
And the sequence of levying is to levy the personal properties
first. Then real properties if personal properties are not
sufficient.
Under the second paragraph of [b], when the sheriff levies on
the property of the judgment debtor and the judgment debtor
has more than sufficient property to cover the judgment debt,
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Civpro | Premid Notes
the sheriff cannot levy all the properties. Or else, he will be
made liable. For example, the debt is only P 30,000, tapos ang
i-levy mo kotse (Toyota Altis) at bahay, which worth millions?
My golly! That’s too much! You sell only up to the point that
the judgment will be satisfied.
But if it is real property or intangible property like
shares of stocks, debts, credits, can you levy on these?
Yes. And under the last paragraph of (b), they may be levied
upon in like manner and with like effect as under a writ of
attachment under Rule 57 on attachment.
What are these properties which may be the subject
of garnishment?
Credits which include bank deposits, financial interests,
royalties, commissions and other personal property not
capable of manual delivery – intangibles. You send a notice
upon the person owing such debts or having in his possession
or control such credits. And it shall cover only such amount as
will satisfy the judgment.
Example: Bank account. I will file a case against you, talo ka.
I learned that you have a deposit with Sanikoh Bank. Puwede
kong habulin yan ba, because that is credit. In obligations and
contracts, the relationship of the depositor and the bank is
that of a creditor and debtor. It is not a contract of deposit
because actually, the bank is borrowing money from you.
Kaya nga, it pays you interest eh.
So, under garnishment, the bank is being commanded not to
pay you but instead pay the sheriff. Garnishee refers to the
debtor, like the bank. When the bank deposit is garnished, the
second paragraph tell us what the bank will do. And if there
are 2 or more banks na ma-garnish, under the next
paragraph, the debtor obligor will determine. If he does not
exercise his option, then the judgment creditor will determine.
Garnishment
Judge Q: Garnishment is a form of levy on the debts due the
debtor including bank deposits. It is a kind of an attachment
for which credits belonging to the judgment debtor and owing
to him from a stranger to the litigation. A writ of attachment
is substantially a writ of execution except that it emanates at
the beginning instead of at the termination of the suit. It
places the attached properties in custodia legis, obtaining
pendente lite a lien until the judgment of the proper tribunal
upon the plaintiff’s claim that the plaintiff’s claim is established
when the lien becomes effective as of the date of the levy.
So a garnishment can be availed of even at the inception of
the trial. Let me just share to you the strategy we employed,
SOP with the legal team of the bank before we initiate a civil
action against the delinquent debtor. What we do is we
investigate so we will deploy them (credit collection officers)
so we will investigate whether there are properties in the
name of the delinquent borrower before we initate a court
action and from there we will decide whether it is practical to
file a case. We will ask a certificate of leviable properties and
we will assess before we will file a case. At the inception of
the proceedings, you can already pray for preliminary
attachment by way of garnishment of bank deposits so it will
be reserved by the bank and the procedure of garnishment
must see to it that it will not violate the right of the depositor
under the secrecy of bank deposits.
So what is the procedure of garnishment?
Garnishment of debts and credits
Bayocboc notes as amended by KGM
Garnishment shall be made by: (a) serving notice upon the
third person having in possession or control of the credits in
favor of the judgment obligor; (b) the third person or
garnishee shall make a written report to the court within five
days from service of the notice of garnishment stating
whether or not the judgment obligor has sufficient funds to
satisfy the judgment without divulging the actual amount of
deposit. If sufficient, the garnishee shall deliver the amount in
cash or certified check directly to the judgment oblige within
10 working days from service of notice on said garnishee. The
lawful fees shall be directly paid to the court. If the amount is
insufficient, the garnishee shall make a report as to the
amount he holds for the judgment obligor.
Judge Q: This time, he will have no choice but to divulge and
it is still not in violation of the right of the obligor under the
bank secrecy law because it is one of the exceptions in the
law: by virtue of a court order.
Execution of Judgments for Specific Act
Section 10. Execution of judgments for specific act. –
(a) Conveyance, delivery of deeds, or other specific acts;
vesting title. – If a judgment directs a party to execute a
conveyance of land or personal property, or to deliver deeds
or other documents, or to perform any other specific act in
connection therewith, and the party fails to comply within the
time specified, the court may direct the act to be done at the
cost of the disobedient party by some other person appointed
by the court and the act when so done shall have like effect
as if done by the party. If real or personal property is situated
within the Philippines, the court in lieu of directing a
conveyance thereof may by an order divest the title of any
party and vest it in others, which shall have the force and
effect of a conveyance executed in due form of law.
(b) Sale of real or personal property. – If the judgment be for
the sale of real or personal property, to sell such property,
describing it, and apply the proceeds in conformity with the
judgment.
(c) Delivery or restitution of real property. – The officer shall
demand of the person against whom the judgment for the
delivery or restitution of real property is rendered and all
persons claiming rights under him to peaceably vacate the
property within three (3) working days, and restore
possession thereof to the judgment obligee; otherwise, the
officer shall oust all such persons therefrom with the
assistance, if necessary, of appropriate peace officers, and
employing such means as may be reasonably necessary to
retake possession, and place the judgment obligee in
possession of such property. Any costs, damages, rents or
profits awarded by the judgment shall be satisfied in the same
manner as a judgment for money.
(d) Removal of improvements on property subject of
execution. – When the property subject of the execution
contains improvements constructed or planted by the
judgment obligor or his agent, the officer shall not destroy,
demolish or remove said improvements except upon special
order of the court, issued upon motion of the judgment
obligee after due hearing and after the former has failed to
remove the same within a reasonable time fixed by the court.
(e) Delivery of personal property. – In judgments for the
delivery of personal property, the officer shall take possession
of the same and forthwith deliver it to the party entitled
thereto and satisfy any judgment for money as therein
provided.
Execution of Judgment for Specific Act
Means that the act such as a judgment ordering the defendant
to deliver the title to the court so it can be cancelled and a
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Civpro | Premid Notes
new title can be issued or to execute a deed of sale in favor
of the plaintiff.
Refusal to Comply
If the judgment obligor refuses to comply, he cannot be cited
in contempt because that form of judgment can be complied
by other persons. For example, if he will not surrender the
title, the court can always order the register of deeds to cancel
the title of the judgment obligor. If he refuses to execute a
deed of sale, the clerk of court can be ordered to execute such
deed in favor of the plaintiff.
Judge Q: With respect to compliance of a specific act, the
court can appoint another person to perform such acts at the
expense of the disobedient party and the act shall have the
same effect as if it was performed by the other party. So it
will be complied with at the expense of the judgment debtor.
Execution for a Judgment for the delivery or restitution of real
property
Immediacy of execution does not mean instant execution.
When a decision is immediately executory it does not mean
dispensing with the required three-day notice. The
requirement of a notice to vacate is based on the rudiments
of justice and fair play. The rule requires that notice be served
“on the person against whom the judgment for the delivery or
restitution of real property is rendered and all persons
claiming rights under him.”
Examples of the first sentence (a)
1) An action for reconveyance of property where you are
asking the defendant, a title owner, to convey to you his
property. The property will be held in trust or that the title be
in your name instead of his;
2) Pacto de retro. I sold to you my land and I am repurchasing
it, pero ayaw mo. You refuse to execute a deed of sale
returning the property to me;
3) Public Land Law. I am the owner of a property under
homestead or free patent and sold it after the prohibition
period. Under the public land law, I have the right to
repurchase it within 5 years. Ayaw mong ibalik, so idemanda
kita. Of course, if I win, you will be directed to return to me
the property and execute a deed of sale.
4) An action for specific performance to compel you to return
to me said property. And the court will order: “Alright, execute
a deed of sale.” You refuse. The court may order the clerk of
court to sign the deed of sale or the Register of Deeds will be
ordered to register the same as if done by the obligor. The
obligor’s signature is not needed.
Example for (b)
The best example for (b) is an action for termination of co-
ownership where there are 50 co-owners of one hectare- the
property will be ordered sold and the proceeds will be
distributed among the co-owners.
Example for (c)
This is applicable to actions for forcible entry, unlawful
detainer, accion publiciana.
Judge Q: That is why in most cases when the writ of execution
is enforced, sheriff will always seek the assistance of police
officers because they are always more often than not, met
with physical resistance.
So, what is the procedure?
The sheriff will give the defendant the chance to vacate the
property, “I am giving you the chance to vacate within three
Bayocboc notes as amended by KGM
(3) working days and restore possession thereof.” And then
ayaw mo pa rin, I will use force to oust you with the assistance
of the appropriate peace officers and place the judgment
obligee in possession of such property.
And if there are damages or unpaid rentals, I will also levy the
property under Section 9. Because sometimes, aside from
ousting the defendant, meron pang money judgment like
unpaid rentals. So, the property of the defendant may be
levied. That is the procedure.
In San Manuel v Tupas, it was held that “The immediate
enforcement of a writ of ejectment execution is carried out by
giving the defendant a notice of such writ and making a
demand that defendant comply therewith within a reasonable
period, normally from three (3) to five (5) days, and it is only
after such period that the sheriff enforces the writ by the
bodily removal of the defendant and his personal belongings.”
Example of (d)
When you oust the defendant in regard of a possession
case, is a writ of execution a sufficient basis for the
removal of improvements of the property?
NO. Under paragraph [d], the plaintiff or judgment obligee
still
have to get a special order from the court by filing a petition
to authorize the destruction or removal of the improvements
of the property after the defendant is given a reasonable time
to remove his shanty or house voluntarily.
In other words, there must be a special order. The writ of
execution only authorizes you to oust the defendant
physically, but not to destroy any property. Just like in
squatters, you need a special order for demolition.
Judge Q: If the judgment directs the defendant to vacate the
property, the sheriff must oust the party and a corresponding
demolition order must be issued by the court in order to effect
a removal of an improvement constructed by the defeated
party.
Paragraph e
Paragraph [e] is related to REPLEVIN – action to recover
personal property – where the plaintiff is trying to repossess
a personal property from the defendant. For example, bili ka
ng appliance tapos hindi mo nabayaran, babawiin yan ng
appliance center. Or, the finance company or the car dealer
will resort to replevin to recover the unit by filing an action for
replevin against the buyer.
Take note that the procedure for enforcing a money judgment
is different from enforcing a judgment for ejectment, or
recovery of possession. Enforcement of money judgment is in
Section 9 – you get the money. Kung walang money, you levy
on the property of the defendant. If it is ejectment or recovery
of possession of property, you follow Section 10, paragraph
[c].
Bar Q: The trial court rendered judgment ordering the
defendant to pay the plaintiff moral and exemplary damages.
The judgment was served on the plaintiff on October 1, 2001,
and on the defendant on October 5, 2001. On October 8,
2001, the defendant filed a notice of appeal from the
judgment, but the following day, October 9, 2001, the plaintiff
moved for the execution of the judgment pending appeal. The
trial court granted the motion upon the posting by the plaintiff
of a bond to indemnify the defendant for damages it may
suffer as a result of the execution. The court gave as a special
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Civpro | Premid Notes
reason for its order the imminent insolvency of the defendant.
Is the order of execution pending appeal correct?
Why? (5%)
No, because awards for moral and exemplary damages cannot
be the subject of execution pending appeal. The execution of
any award for moral and exemplary damages is dependent on
the outcome of the main case. Liabilities for moral and
exemplary damages, as well as the exact amounts remain
uncertain and indefinite pending resolution by the Court of
Appeals or Supreme Court.
Execution of Special Judgments
Section 11. Execution of special judgments. – When a
judgment requires the performance of any act other than
those mentioned in the two preceding sections, a certified
copy of the judgment shall be attached to the writ of execution
and shall be served by the officer upon the party against
whom the same is rendered, or upon any other person
required thereby, or by law, to obey the same, and such party
or person may be punished for contempt if he disobeys such
judgment.
Note: Here, the judgment of the court orders the judgment
obligor to do a particular act which only he can do. It cannot
be delegated to another person. If he will not obey the
judgment, it cannot be done by others. The failure to obey
will constitute contempt of court.
Judge Q: He will be cited for contempt and may be punished
by imprisonment, just to compel him. It is an act to be
performed by said person, but if it can be made by another
person, then it can be performed at the expense of the
judgment debtor.
Ordinary v Special Judgment
A judgment is ordinary if the judgment orders the defendant
to pay money, like a collection case (sec. 9) or to deliver real
or personal property (sec. 10). On the other hand, a judgment
is a special judgment if it is a judgment which requires the
defendant to perform an act other than payment of money or
delivery of property. It refers to a specific act which a party or
person must personally do because his personal qualifications
and circumstances have been taken into consideration.
Example of a special judgment
Usurpation of government office. You are the city treasurer
and somebody else is appointed city treasurer and you refuse
to vacate. So there will be a quo warranto proceeding. Then
the judgment will order you to vacate your position, such
judgment is a special judgment because you are not ordered
to pay anything nor deliver property.
What is the difference between the ordinary and
special judgments?
A special judgment may be enforced by contempt if the
defendant refuses to comply with the judgment. But if it is an
ordinary judgment and the defendant refuses to comply, it is
not a ground for contempt.
Under Section 9, if the judgment-debtor refuses to pay his
debt, you cannot cite him in contempt because under the
Constitution, no person shall be imprisoned for debt. The
correct procedure under Section 9 is you look for properties
of the defendant and then ipa-levy mo. You do not send the
debtor to jail.
Bayocboc notes as amended by KGM
Under Section 10 if the squatter refuses to vacate, you cannot
cite him in contempt and send him to jail. Kung ayaw, you get
police for back up. That is the procedure.
But under Section 11, if defendant is ordered to vacate his
office because he is no longer the city treasurer, the plaintiff
can have him arrested and brought to jail because that is a
special judgment which can be enforced by contempt.
Give a specific rule on special judgment
Section 9 of Rule 65 – Special Civil Action for Certiorari,
Prohibition and Mandamus. A judgment in certiorari,
prohibition or mandamus case, if not complied with, is
punishable by contempt.
Bar Q: An amicable settlement was signed before a Lupon
Tagapamayapa on January 3, 2001. On July 6, 2001, the
prevailing party asked the Lupon to execute the amicable
settlement because of the non-compliance of the other party
with the terms of the agreement. The Lupon concerned
refused to execute the settlement/agreement. Is the Lupon
correct in refusing to execute the settlement /
agreement. (3%)
Yes, the Lupon is correct in refusing to execute the
settlement/agreement because the execution sought is
already beyond the period of six months from the date of the
settlement within which the Lupon is authorized to execute.
After the six-month period, the prevailing party should move
to execute the settlement/agreement in the appropriate city
or municipal court.
Effects of Levy on Execution
Section 12. Effect of levy on execution as to third
persons. – The levy on execution shall create a lien in favor
of the judgment obligee over the right, title and interest of the
judgment obligor in such property at the time of the levy,
subject to liens and encumbrances then existing.
Levy
Levy means the act or acts by which an officer sets apart or
appropriates a part or the whole of the property of the
judgment debtor for purposes of the prospective execution
sale.
Lien
A lien is a “legal claim or charge on property, either real or
personal, as a collateral or security for the payment of some
debt or obligation. A lien, until discharged, follows the
property.
What is the effect of the levy on the property of the
judgment debtor?
The levy on execution shall create a lien in favor of the
judgment obligee over the right, title and interest of the
judgment obligor in such property at the time of the levy,
subject to liens and encumbrances then existing.
If the property levied by the sheriff was already encumbered
by the judgment debtor to another person, then the
encumbrance is superior to the levy.
Judge Q: If there is an encumbrance by virtue of a mortgage
indebtedness, it is a secured credit and hence there is a
mortgage agreement and the same is annotated on the title,
so the levy on execution is subordinate to the right of the
mortgagee because if levy of execution is made and after
which an execution sale is conducted, the purchaser must
honor the lien and encumbrance existing at the time of levy
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Civpro | Premid Notes
because the lien or encumbrance is superior to the levy on
execution but even if it is an encumbered property, it can still
be subject to execution.
Example: The sheriff levied a land belonging to a judgment
debtor. Unfortunately, that land was already mortgaged by
the judgment debtor to a bank, so the levy is inferior to the
mortgage because the law says the levy is subject to the lien
and encumbrances then existing. IOW, once the judgment
debtor fails to pay the bank, the bank can still foreclose the
mortgage on the property.
What are the properties that the sheriff can levy?
The sheriff can levy any property of the judgment debtor
whether real or personal. If it is intangible, it can garnish the
intangible property – it is still in the nature of a levy.
However, there are properties of the judgment debtor that are
exempt from execution sale enumerated in Section 13.
Property Exempt from Execution
Section 13. Property exempt from execution. – Except
as otherwise expressly provided by law, the following
property, and no other, shall be exempt from execution:
(a) The judgment obligor’s family home as provided by law,
or the homestead in which he resides, and land necessarily
used in connection therewith;
(b) Ordinary tools and implements personally used by him in
his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other
beasts of burden, such as the judgment obligor may select
necessarily used by him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary personal
use, excluding jewelry;
(e) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the judgment
obligor and his family, such as the judgment obligor may
select, of a value not exceeding one hundred thousand pesos;
(f) Provisions for individual or family use sufficient for four
months;
(g) The professional libraries and equipment of judges,
lawyers, physicians, pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other professionals, not
exceeding three hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding the total
value of one hundred thousand pesos owned by a fisherman
and by the lawful use of which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the four
months preceding the levy as are necessary for the support of
his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or in any
manner growing out of any life insurance;
(l) The right to receive legal support, or money or property
obtained as such support, or any pension or gratuity from the
Government;
(m)Properties specially exempted by law.
But no article or species of property mentioned in this section
shall be exempt from execution issued upon a judgment
recovered for its price or upon a judgment of foreclosure of a
mortgage thereon.
Family Home
The house where your family resides. It is the house where
the members of the family resides, including the lot.
Bayocboc notes as amended by KGM
Judge Q: The family cannot merely claim that the home is
exempt from execution because it is a family home. There
must be sufficient proof to the sheriff. Failure to do so will
estop the party from claiming that it is exempt from execution.
(Sps. Versola v CA)
For instance, you lost in a case where you are liable for
P200T. You have no other property left except that
house where you live. Can the sheriff levy the house
to answer such obligations?
No. The judgment obligor’s family home and the land
necessarily used in connection therewith is exempt. That is a
guarantee that no matter how many obligations you have,
there is no way for you to be thrown to the street – to be a
homeless person. Your house cannot be levied; but in the
Family Code, there’s a limit, if your house is a mansion worth
millions, that is not exempt. Please review your Family Code
on this matter.
Ordinary tools and implements personally used by him in his
trade, employment or livelihood
This is self-explanatory. If you are a carpenter, you earn your
living by being a carpenter. What are the ordinary tools that
you must have? Saw, hammer, etc. By public policy and by
legal provision, the tools and implements used by a carpenter
in his trade, employment, or livelihood cannot be levied by the
sheriff.
The Court held in the case of Pentagon Security v Jimenez
that, “The term ‘tools and implements’ refers to instruments
of husbandry or manual labor needed by an artisan craftsman
or laborer to obtain his living. Here, PSIA is a business
enterprise. It does not use the firearms personally, but they
are used by its employees. Not being a natural person,
petitioner cannot claim that the firearms are necessary for its
livelihood.”
Now, what is interesting in the PENTAGON case is that the SC
says that firearms can be levied, they can be sold at public
auction. SC: “However, for security reasons, and to prevent
the possibility that the firearms to be sold at the execution
sale may fall into the hands of lawless and subversive
elements, the sale at public auction should be with the prior
clearance and under supervision of the PNP.” Otherwise, the
persons who might bid are kidnappers, NPA, Abu Sayyaff,
(Kuratong Baleleng, MILF, MNLF, Lost Command, Kulto Pinish,
Polgas, PAOCTF, Osama bin Laden et al, etc.) So, there must
be a prior clearance on the sale of the firearms during the
auction sale.
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
For example, you are a farmer. You plow your land by a
carabao. You cannot levy the carabao. OR, if you are a
cochero, you have a horse for your caretela. You cannot levy
the horse. [ang horse shit, pwede! Pero yung horse mismo, di
pwede!] And under the prior rules, only 2 horses, 2 cows or
carabaos are exempt. The new rules make it three (3).
His necessary clothing and articles for ordinary personal use,
excluding jewelry
You cannot levy on the debtor’s wardrobe. These are articles
for ordinary personal use. This article excludes jewelry. All
other things for basic needs are exempt, like personal comb,
toothbrush, etc.
Judge Q: Jewelry is a luxury and not anymore a necessity.
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Civpro | Premid Notes
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
Household furniture like dining table, dining chair, sala set,
utensils necessary for housekeeping and used for the purpose
by the obligor and his family like plates, forks, spoons. How
can you eat without those utensils. BUT there’s a limit that the
value does not exceed P100,000. If the value exceeds, it can
be levied.
Provisions for individual or family use sufficient for four
months
For example, one sack of rice for daily consumption, canned
goods – provisions for consumption good for 4 months are
exempt. If you have one bodega of rice, that’s another story.
The professional libraries and equipment of judges, lawyers,
physicians, pharmacists, dentists, engineers, surveyors,
clergymen, teachers and other professional not exceeding
three hundred thousand pesos in value
Your books, books of judges and professionals and equipment
–maybe the computer, typewriter, dentist’s chair, equipment
of engineers are exempt provided the value does not exceed
P300,000.
One fishing boat and accessories not exceeding the total value
of one hundred thousand (P100,000.00) pesos owned by a
fisherman and by the lawful use of which he earns his
livelihood;
So much of the salaries, wages, or earnings of the judgment
obligor for his personal services within the four months
preceding the levy as are necessary for the support of his
family;
The salary of a person within 4 months is exempt. For
example, you have backwages of 6 months. Only 2 months
salary can be levied. Exempt ang 4 months.
Technically, wages and salaries are exempt as long as they
are necessary for support of living. If you earn a minimum
wage, everything may be exempted. But if you earn P50,000
a month and you support only two people, the court may levy
on the excess.
Lettered gravestones
Why will you levy on lettered gravestones?
Judge Q: For the life of me, I have never really understood
why this is excluded and I never even bothered to know why
so let’s just leave it at that.
Monies, benefits, privileges, or annuities accruing or in any
manner growing out of any life insurance
The proceeds of life insurance. The amount received by the
beneficiaries cannot be levied, not a single centavo.
The right to receive legal support, or money or property
obtained as such support, or any pension or gratuity from the
Government
The right to receive legal support. For instance, ako na lang
ang mag receive ng support mo. Hindi pwede yan. Also the
money given monthly to you if you are receiving support
cannot be levied. Any pension or gratuity from the
government- GSIS pension, for example
Properties specially exempt by law
Bayocboc notes as amended by KGM
This is very broad.
Give an example where a property is exempt from
execution under the special law?
1. Property obtained pursuant to a free patent application,
homestead.
2. Under social legislation, SSS benefits are also exempt
from execution
3. Under CARP law, the property acquired by a tenant under
the law cannot be levied also
4. Property mortgaged with the DBP by virtue of a special
provision
5. Property taken over by alien property administration
6. Savings of national prisoners deposited with the Postal
Savings Bank
7. Backpay of pre-war civilian employees
8. Philippine government backpay to guerillas
9. Labor wages except debts
10. Copyrights
When the property mentioned is not exempt from execution
If the property mentioned in Section 13 is the subject of
execution because of a judgment for the recovery of the price
or upon a judgment of foreclosure of a mortgage upon the
property, the property is not exempt from execution.
Sections 15-34 Sale
Sections 35-43 How to satisfy judgment
Sections 44-45 Meaning of satisfaction of
judgment
Bar Q: A lawyer went to Alemars professional books supply.
He bought books worth half a million. That was utang –
P500,000. The store decided to sue the lawyer for such
amount not paid. The bookstore got a judgment. There was a
levy on the lawyer’s property. The sheriff levied on the same
books which became the source of the case. The lawyer
claimed exemption under Section 13 up to P300,000 because
it forms part of his professional library. Is the lawyer
correct??
The lawyer is WRONG because of the last paragraph of
Section 13 that no article or species of properties mentioned
in this section shall be exempt from execution issued upon a
judgment recovered for the price or upon a judgment of
foreclosure of a mortgage thereon.
What the law says, is the properties mentioned here (in
Section 13) are exempt, EXCEPT when that debt arose out of
that property. For example, here, why are you indebted to
Alemars? Because of unpaid books. So the very books which
gave rise to an obligation are not exempt from execution.
But if another creditor will file a case against the lawyer, and
that other creditor will win, that creditor cannot levy on the
books because they are exempt. But the creditor from whom
the books were bought can levy on the same books which
gave rise to an obligation.
The same thing with FAMILY HOME. For example, you will
build a family home and then, hindi mo binayaran ang
materials, labor and there was judgment against you. The
creditor and the owner can levy on the house. He cannot claim
exemption because the debt arose out of that same family
home.
Another example: You borrowed money from the bank. You
mortgaged your house. Later on, you cannot pay the loan.
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Civpro | Premid Notes
The bank foreclosed the mortgage. You cannot argue that
your house cannot be levied. Kaya nga may utang ka because
of your house. Since you mortgaged it, that is not covered by
the exemption.
What is the reason behind this exemption?
The reason for this exemption is PUBLIC POLICY. And
common sense no? – the debtor should pay but this should
not deprive him of a means to earn his living. You can levy on
his property but not to the extent of depriving him of his
provisions for support, means of livelihood by throwing him
on to the street, homeless, penniless, despondent, dejected,
mournful, melancholy, forlorn…
Return of the Writ of Execution
Section 14. Return of writ of execution. – The writ of
execution shall be returnable to the court issuing it
immediately after the judgment has been satisfied in part or
in full. If the judgment cannot be satisfied in full within thirty
(30) days after his receipt of the writ, the officer shall report
to the court and state the reason therefor. Such writ shall
continue in effect during the period within which the judgment
may be enforced by motion. The officer shall make a report
to the court every thirty (30) days on the proceedings taken
thereon until the judgment is satisfied in full, or its effectivity
expires. The returns or periodic reports shall set forth the
whole of the proceedings taken, and shall be filed with the
court and copies thereof promptly furnished the parties. (11a)
Lifespan of the Writ of Execution
The lifespan of a Writ of Execution is the same as that period
within which you can enforce judgment by mere motion which
is 5 years from the time the judgment becomes final. The
period to file a motion for execution is also the same period
within which the Writ of Execution is valid.
If the sheriff will serve the writ of execution on the defendant
and it is not fully satisfied, the sheriff must make a report to
the court that the obligation was only partially paid. The
sheriff will keep the writ of execution within 5 years and make
a periodic report to the judge stating that he has not yet found
any properties of the debtor or if he has found properties, he
will also report that to the judge but it is still not fully enough
to pay the obligation of the debtor.
Every 30 days, the sheriff is supposed to report to the court
of the progress of his execution of the judgment of the court
or how the writ of execution was implemented.
Alias Writ of Execution
If the writ is lost or destroyed, you can ask for an alias writ of
execution.
Execution Sale: Notice
Section 15. Notice of sale of property on execution. –
Before the sale of property on execution, notice thereof must
be given as follows:
(a) In case of perishable property, by posting written notice
of the time and place of the sale in three (3) public places,
preferably in conspicuous areas of the municipal or city hall,
post office and public market in the municipality or city where
the sale is to take place, for such time as may be reasonable,
considering the character and condition of the property;
(b) In case of other personal property, by posting a similar
notice in the three (3) public places above-mentioned for not
less than five (5) days;
(c) In case of real property, by posting for twenty (20) days
in the three (3) public places above-mentioned a similar notice
Bayocboc notes as amended by KGM
particularly describing the property and stating where the
property is to be sold, and if the assessed value of the
property exceeds fifty thousand (P50,000.00) pesos, by
publishing a copy of the notice once a week for two (2)
consecutive weeks in one newspaper selected by raffle,
whether in English, Filipino, or any major regional language
published, edited and circulated or, in the absence thereof,
having general circulation in the province or city;
(d) In all cases, written notice of the sale shall be given to the
judgment obligor, at least three (3) days before the sale,
except as provided in paragraph (a) hereof where notice shall
be given at any time before the sale, in the same manner as
personal service of pleadings and other papers as provided by
section 6 of Rule 13.
The notice shall specify the place, date and exact time of the
sale which should not be earlier than nine o’clock in the
morning and not later than two o’clock in the afternoon. The
place of the sale may be agreed upon by the parties. In the
absence of such agreement, the sale of real property or
personal property not capable of manual delivery shall be held
in the office of the clerk of court of the Regional Trial Court or
the Municipal Trial Court which issued the writ or which was
designated by the appellate court. In the case of personal
property capable of manual delivery, the sale shall be held in
the place where the property is located.
Note: Auction sale follows levy. There must be notices
because auction sale is open to the public. Notices must be
posted in 3 public places preferably in the municipal hall, post
office and public market. In paragraph [c], if the property to
be sold is REAL property, the notices must describe the
property, its location, assessed value if exceeding P50,000.
Aside from notices, the law requires PUBLICATION in a
newspaper so that many people can read it.
You try to go there in the Hall of Justice, may bulletin board
diyan sa labas. Notices are posted there. If you are interested
in buying something, para mura, tingnan mo diyan.
The law is very detailed now. The notice must specify the date
of the sale, time, place etc. And the SC ruled that these
requirements are to be strictly complied with.
For example: You do not comply with the posting in 3
conspicuous places. The SC said the requirements of the law
for the holding of the public auction should be strictly
followed. Why? Because in a public auction, you are depriving
someone of his property- the judgment debtor. So, all the
requirements of the law intended to deprive the owner of his
ownership over his property should be followed.
Who will conduct?
It is the sheriff who will conduct the execution sale
Where will the sheriff conduct the execution sale?
It depends on what property is levied and up for sale.
a. Real property or immovable property- the sale shall be
conducted in the office of the Clerk of Court of the court
who rendered the decision and issued the writ of
execution
b. Personal property- can be sold where the personal
property is located
When shall the execution of sale be done?
The sheriff will be the one to decide on that.
Notice of Sale
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A. Posting of Notice in 3 conspicuous places
What is a conspicuous place?
It means a place where many people converge or go to.
When will the execution sale be conducted?
It depends.
20 days- real properties
5 days-personal properties
Reasonable time-perishable
B. Publication: Real Properties worth more than P50,000
If the value of the property to be sold is more than P50k, the
notice of execution must also be published in a newspaper of
general circulation in the place where the execution sale will
be conducted.
It shall be published once a week for 2 consecutive weeks.
C. In all cases the debtor must be notified at least three days
before the sale
In all cases whether real or personal property – whatever is
the nature of the property to be sold in an execution sale, the
debtor himself must be personally notified at least three days
before the sale.
D. Contents of Notice: Place, date, exact time and
description of the thing to be sold
What does the notice of execution sale contain?
1. It contains the place where the execution is conducted
2. Date and exact time
3. Description of the thing or things to be sold
Terciera
Section 16. Proceedings where property claimed by
third person. – If the property levied on is claimed by any
person other than the judgment obligor or his agent, and such
person makes an affidavit of his title thereto or right to the
possession thereof, stating the grounds of such right or title,
and serves the same upon the officer making the levy and a
copy thereof upon the judgment obligee, the officer shall not
be bound to keep the property, unless such judgment obligee,
on demand of the officer, files a bond approved by the court
to indemnify the third-party claimant in a sum not less than
the value of the property levied on. In case of disagreement
as to such value, the same shall be determined by the court
issuing the writ of execution. No claim for damages for the
taking or keeping of the property may be enforced against the
bond unless the action therefor is filed within one hundred
twenty (120) days from the date of the filing of the bond.
The officer shall not be liable for damages for the taking or
keeping of the property, to any third-party claimant if such
bond is filed. Nothing herein contained shall prevent such
claimant or any third person from vindicating his claim to the
property in a separate action, or prevent the judgment obligee
from claiming damages in the same or a separate action
against a third-party claimant who filed a frivolous or plainly
spurious claim.
When the writ of execution is issued in favor of the Republic
of the Philippines, or any officer duly representing it, the filing
of such bond shall not be required, and in case the sheriff or
levying officer is sued for damages as a result of the levy, he
shall be represented by the Solicitor General and if held liable
therefor, the actual damages adjudged by the court shall be
Bayocboc notes as amended by KGM
paid by the National Treasurer out of such funds as may be
appropriated for the purpose.
Judge Q (in summary for the said provision): So the sheriff
has no authority if there is a claim properly filed and how
should the claim be made? Through an affidavit and stating
his grounds and duly serving it upon the officer, he cannot
proceed with the levy but if the judgment creditor on demand
of the sheriff files a bond which will answer any damage the
third-party may incur, then the officer will proceed with levy.
In case of disagreement as to such value, the same shall be
determined by the court issuing the writ of execution.
This also just sets a limit to the period within which to file a
claim and so the government will already guarantee to answer
for any damage.
Note: The power of a court in executing judgments extends
only to properties unquestionable belonging to the judgment
debtor alone. An execution can be issued only against a party
and not against one who did not have his day in court. The
duty of the sheriff is to levy the property of the judgment
debtor and not a third person.
What is Terceria?
A terceria is a third-party claim – when a property that was
levied by the sheriff is claimed by another person, not the
judgment debtor.
What will that person do? For example, the property levied y
the sheriff is not owned by the debtor, but owned by someone
else. That third person will complain and go to the sheriff to
tell him he is the owner of the property and not the judgment
debtor.
What will the third-party do?
He will file a third-party claim known as terceria. He will submit
the claim in an affidavit form to the sheriff and copy furnished
to the court. The claim must be supported by evidences.
For example, if the property levied is a car – he must present
the registration of the car indicating that he is the owner.
Requisites for a claim by a third person
a. The property is levied
b. The claimant is a person other than the judgment obligor
or his agent
c. An affidavit of his title thereto or right to the possession
thereof stating the grounds of such right or title
d. The claimant serves the affidavit upon the officer making
the levy and the judgment oblige/creditor
Judge Q: So as what I’ve said, what should the officer do? If
claimed by a third person, he shall not be bound to keep the
property unless the creditor files a bond. The officer shall not
be liable for damages if such bond is filed because the bond
will be the one to answer for any damage incurred by the
third-party claimant.
What the Sheriff Must Do
The sheriff must not proceed with the execution sale.
Otherwise, the sheriff will be personally liable to the third-
party claimant in the event the third party claimant proves
that he is the real owner of the property.
Bond to be put by creditor
If the judgment creditor is confident that he can prove that it
is not owned by the third-party claimant, he can tell the sheriff
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Civpro | Premid Notes
that he will answer for whatever damages the sheriff may be
held liable. The judgment creditor will put up a bond.
Remedy of Third-Party Claimant
What will the third-party claimant do?
The third party claimant must have to go to court – not to the
court which issued the writ of execution – but he must file a
case known as a reinvindicatory action to prove his ownership
of the property.
Court cannot resolve issue of ownership
The court who issued the execution cannot resolve the issue
of ownership.
Note: When there is a third-party claim, the Sheriff will refer
it to the judge who issued the writ of execution.
The judge will conduct a summary hearing to determine
whether the third-party claim is really a legitimate claim. If the
judge is convinced that the property really belongs to the third
party complainant, the judge can order the sheriff to release
that property from the levy.
If the judgment obligee (creditor) will oppose the third- party
claim and argue that the third-party claimant is not really the
owner but the judgment debtor who only executed a fictitious
sale – that is a matter that is already beyond the power to
resolve the issue of ownership. The best advice that the judge
can give is to tell the third- party claimant to go to court and
file a case of reinvindicatoria to recover the property that was
already levied by the sheriff.
Further, it was held in the case of Sy v Discaya that if your
property was erroneously levied under Rule 39, you can seek
relief from the very same court which rendered the judgment
by simply filing a motion to question the actuation of the
sheriff, because execution is part of the process in that case
and the sheriff is an officer of the court and the court has the
complete control over the actuation of the sheriff. Therefore,
why require the 3rd-party to file another action when he can
seek relief in the same case? Meaning, the third party can seek
relief in the same case but only to determine whether the
sheriff acted rightly or wrongly, BUT not for the purpose of
determining the issue of ownership. Questions of ownership
cannot be decided here. There must be a separate action for
the issue of ownership.
Is a husband, who was not a party to the suit but
whose conjugal property was executed on account of
the other spouse’s debt, considered a “stranger” to the
suit?
In Buado v Court of Appeals, the Court held that resolve the
issue, it must first be determined whether the debt had
redounded to the benefit of the conjugal partnership or not.
In the negative, the spouse is a stranger to the suit who can
file an independent separate action, distinct from the action
in which the writ was issued.
Lifespan of the bond (120 days)
If the third-party complainant will not file a case in court within
120 days from the time that the property was levied, the bond
put up by the judgment creditor will be free. IOW, the bond
has a lifespan only of 120 days.
Note: After 120 days, if no reinvindicatory action is filed by
the third-party claimant, the bond is already free. The third-
party claimant could no longer recover from the bond because
the bond is actually intended to answer for whatever damage
Bayocboc notes as amended by KGM
the third-party claimant may suffer if he can prove later on
that he is the real owner of the property.
Creditor may also claim damages
The New Rules (1997) also allow the creditor to file a claim
against the third-party claimant if during the hearing he was
able to prove that the third-party claim is frivolous,
unfounded, or baseless.
Note: If the third-party claimant is constrained to file a
reinvindicatory action in another court (because he cannot file
it in the same court) – he will file it as a regular action. The
other court where the reinvindicatory action is filed has the
power to issue a writ of preliminary injunction to prevent the
sheriff from proceeding with the execution sale over the
property. That is not considered as an interference of a court
from the power of a co-equal court who issued the execution.
ILLUSTRATION: Lolo decided to go on a long vacation and
he entrusted to Karen (ang paborito ni Lolo) all his personal
property like appliances – TV, refrigerator, car, etc. Karen
used the property owned by Lolo while he was not around.
Unknown to Lolo, Karen has a pending civil case filed by Gina.
Gina obtained a judgment against Karen. There was levy on
execution. The sheriff went to the premises of Karen, he found
all these properties and he enforced the levy.
Lolo came home and went to get the property from Karen.
Karen said, they were all levied by the sheriff. Lolo is a person
who is not the defendant but his properties were erroneously
levied because the sheriff thought they belong to Karen who
was in possession of them.
What is the remedy of Lolo who is not a defendant?
The remedy is to apply Section 16, Rule 39 – You file with the
sheriff, copy furnish Gina, what is known as the third-party
claim or TERCERIA. Terceria is an affidavit asserting that he
is the owner of the property levied. So with that the sheriff is
now placed on guard because the sheriff may be held liable if
he continues to sell the property of the defendant. So, he is
not bound to the proceedings regarding the sale unless the
judgment obligee, on demand of the sheriff, files a bond
approved by the court to indemnify a third party claimant in
the sum not less than the value of the property levied on.
Suppose sabi ni Gina: “Huwag kang maniwala diyan.
Kalokohan iyan. Drama lang yan ni Karen at Lolo. Proceed
with the auction sale!” Gina has to file a bond if she insists
that the auction sale must proceed. Gina must put up a bond
approved by the court to indemnify the third-party claimant,
a sum not less than the value of the property. If the property
is worth half a million, the bond must also be half a million.
Then auction sale may proceed because there’s already a
bond to answer for the damages. The sale may go on despite
the third party claim.
Third-party claim v Third party complaint
What is a third party complaint under Rule 6?
A third-party complaint under Rule 6 is a PLEADING filed by a
defendant against the third person not a party to the action
for contribution, indemnity, subrogation, or any other relief in
respect of the plaintiff’s complaint.
What is a third-party claim under Rule 39?
A third-party claim (terceria) under RULE 39 is an AFFIDAVIT
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made by a third person who claims to be entitled to the
property in the custody of a sheriff by virtue of a writ of
execution.
The one who files a third party claim is technically called third-
party CLAIMANT. The one who files a third party complaint is
called third- party PLAINTIFF. I notice that even in SC
decisions, the SC commits that lapse: “The defendant filed a
third party complaint” or sometimes “third party claimant.”
But actually, the correct term is third-party plaintiff.
If I am the third person and I want to vindicate my
claim to that property, is a third party claim procedure
the only remedy I have under the law? Even if there’s
a third party claim, auction sale may proceed as long
as there’s a bond. But I want the auction sale not to
proceed and I want the property to be returned in my
favor, do I have any other remedy?
YES. Second paragraph: “Nothing herein contained shall
prevent such claimant or any third person from vindicating his
claim to the property in a SEPARATE ACTION.” So, the remedy
of third-party claim is NOT exclusive. There is nothing in
Section 16 which says that a third person is deprived of a right
to file a separate action.
As the lawyer of Lolo, I have another option: instead of filing
a third party claim, I would file a case in court – the separate
case would name Gina as the defendant. The cause of action
is that the sheriff mistakenly or erroneously levied the
properties not owned by Karen because I am the real owner.
Since there was a mistaken levy, I am also asking the court to
declare the levy as null and void, the auction sale should not
proceed.
The court might rule in my favor, so a separate action is
allowed. Thus, a third-party claim is not the only remedy
available under the law for the third party claimant.
Suppose I am the lawyer of Lolo, bakit pa ako mag-file
ng another case? Can I not just complain to the court
which rendered the decision? Can I not just file a
motion asking the judge to order the release of the
property? Is a separate action not a violation of the
rule against multiplicity of suits?
No. You cannot bring out the issue to determine the
ownership of the property. Intervention here is not proper.
The SC said you cannot intervene because under Rule 19, an
intervention can only be done at any time before judgment.
But here in Rule 39, we are now on the stage of execution.
Intervention comes too late. The judge has already decided
the case. So, a separate action is the proper remedy.
Summary of remedies
The remedies of a third person whose property was seized by
the sheriff to answer for the obligation of a judgment obligor
are the following:
1. Invoke the supervisory power of the court which
authorized such execution
2. Terceria- third party claim
3. Any proper action to vindicate his claim to the property,
meaning a separate civil action
Penalty for Selling Without Notice
Section 17. Penalty for selling without notice, or
removing or defacing notice. – An officer selling without
the notice prescribed by section 15 of this Rule shall be liable
to pay punitive damages in the amount of five thousand
Bayocboc notes as amended by KGM
(P5,000.00) pesos to any person injured thereby, in addition
to his actual damages, both to be recovered by motion in the
same action; and a person willfully removing or defacing the
notice posted, if done before the sale, or before the
satisfaction of the judgment if it be satisfied before the sale,
shall be liable to pay five thousand (P5,000.00) pesos to any
person injured by reason thereof, in addition to his actual
damages, to be recovered by motion in the same action. (19a)
Note: Section 17 deals with penalty for selling without notice.
If the sheriff will conduct an execution sale without proper
notice like posting of notices in 3 conspicuous places and
notifying personally the judgment debtor- he is liable for
damages.
Penalty- punitive damages of P5k to be paid by the sheriff to
the person injured thereby.
How to Prevent Execution Sale
Section 18. No sale if judgment and costs paid. – At any
time before the sale of property on execution, the judgment
obligor may prevent the sale by paying the amount required
by the execution and the costs that have been incurred
therein. For example, the bank is foreclosing your mortgage
and selling the property at public auction. To stop the bank
from proceeding with the sale, you go to the bank and pay all
your obligations.
When there is already a notice of levy of execution,
will it still be possible for the judgment debtor to
prevent the execution sale? How can the judgment
debtor prevent the execution sale?
By paying the obligation stated in the writ of execution to the
judgment creditor.
Manner and Order of Execution Sale
Section 19. How property sold on execution; who may
direct manner and order of sale. – All sales of property
under execution must be made at public auction, to the
highest bidder, to start at the exact time fixed in the notice.
After sufficient property has been sold to satisfy the execution,
no more shall be sold and any excess property or proceeds of
the sale shall be promptly delivered to the judgment obligor
or his authorized representative, unless otherwise directed by
the judgment or order of the court. When the sale is of real
property, consisting of several known lots, they must be sold
separately; or, when a portion of such real property is claimed
by a third person, he may require it to be sold separately.
When the sale is of personal property capable of manual
delivery, it must be sold within view of those attending the
same and in such parcels as are likely to bring the highest
price. The judgment obligor, if present at the sale, may direct
the order in which property, real or personal, shall be sold,
when such property consists of several known lots or parcels
which can be sold to advantage separately. Neither the officer
conducting the execution sale, nor his deputies, can become
a purchaser, nor be interested directly or indirectly in any
purchase at such sale.
If there are several properties levied by the sheriff in
preparation for the prospective execution sale, who
decides which property shall be sold first?
It is the sheriff. But if the judgment debtor (the owner of the
property to be sold) is present in the execution sale, he will
be the one to decide which property will be sold first. In the
absence of that, the sheriff will be the one to decide and the
personal property shall be sold first before the real property.
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Note: When the sheriff sells the properties that were levied on
execution, he will continue with the sale until the full amount
of the obligation is reached. Once the full amount is reached,
he will stop the execution sale and return the properties not
yet sold.
Now, the last paragraph, the last sentence says, “neither the
officer conducting the execution sale, nor his deputies, can
become a purchaser, nor be interested directly or indirectly in
any purchase at such sale”. So the sheriff and his deputy
cannot participate in the auction, these are prohibited interest.
I think there is also a prohibition in the Civil Code on this —
on prohibited sales. The judge cannot be interested in the sale
of a property which is the subject matter of the litigation. The
lawyer here cannot purchase a property involving a case
which he handled, to prevent conflict of interest.
Refusal of Purchaser to Pay
Section 20. Refusal of purchaser to pay. – If a purchaser
refuses to pay the amount bid by him for property struck off
to him at a sale under execution, the officer may again sell
the property to the highest bidder and shall not be responsible
for any loss occasioned thereby; but the court may order the
refusing purchaser to pay into the court the amount of such
loss, with costs, and may punish him for contempt if he
disobeys the order. The amount of such payment shall be for
the benefit of the person entitled to the proceeds of the
execution, unless the execution has been fully satisfied, in
which event such proceeds shall be for the benefit of the
judgment obligor. The officer may thereafter reject any
subsequent bid of such purchaser who refuses to pay.
Note: If during the execution sale, someone submits the
highest bid so that the sheriff awarded it to him. However,
after the sheriff awarded it to the highest bidder, he backed
out and said it was a joke only.
What will happen?
If the highest bidder refuses to pay the purchase price, the
sheriff can proceed with the execution sale and conduct
another auction sale for that property. If it is bought for a
price lower than what is bidded by the ‘joker’ – he will pay for
the difference.
Example: What was sold is a car. In the execution sale, there
were several bidders and Mr. X bid to buy the car for 800K.
The sheriff sold the property to Mr. X.
Mr. X later said he was only joking. What will the sheriff do?
The sheriff will conduct again the execution sale. If the highest
bid is 600K, Mr. X will now pay the difference between 800K
and 600K. He will pay 200K. That is the penalty for making a
joke!
May he bid again?
No more. The officer may thereafter reject any subsequent
bid of such purchaser who refused to pay. So do not fool
around there when you make a bid. You must be serious and
you must be ready to pay for you bid.
Judgment Obligee as Purchaser
Section 21. Judgment obligee as purchaser. – When the
purchaser is the judgment obligee, and no third- party claim
has been filed, he need not pay the amount of the bid if it
does not exceed the amount of his judgment. If it does, he
shall pay only the excess.
Bayocboc notes as amended by KGM
Can the creditor participate in the execution sale?
Yes. The sale is open to the public. In fact most of the time,
it is only the judgment creditor who will attend the execution
sale. The judgment creditor will participate because he will be
interested na mahalin na para mabayaran siya. He will be the
one to bid and the amount will be lower than the actual price.
Bid of the judgment creditor is lower than the amount of
obligation
GR: If the bid of the judgment creditor/oblige is lower than
the obligation, he need not pay the sheriff.
For example: The obligation of the judgment debtor is 1M and
his car was sold to the judgment creditor for only 400K. He
does not have to shell out 400K because the obligation was
1M.
Bid of the judgment creditor is lower than the amount of
obligation but the property sold is subject to a third-party
claim
XPN: If the property sold is subject to a third-party claim, and
in the execution sale the highest bidder is the judgment
creditor and the bid was lower than the total obligation, the
judgment creditor still has to pay in cash because there is a
third party-claimant.
Bid of judgment creditor is higher than the amount of
obligation
The judgment creditor is normally obliged to pay the sheriff if
his bid is in an amount more than the obligation of the
judgment debtor.
Example: The obligation is 1M. The sheriff sold a land to the
judgment creditor for 1.3M. He will only pay the balance – the
difference of 300K. He will deliver the payment to the sheriff
and the sheriff will turn over the excess to the judgment
debtor.
Adjournment of Sale
Section 22. Adjournment of sale. – By written consent of
the judgment obligor and obligee, or their duly authorized
representatives, the officer may adjourn the sale to any date
and time agreed upon by them.
Without such agreement, he may adjourn the sale from day
to day if it becomes necessary to do so for lack of time to
complete the sale on the day fixed in the notice or the day to
which it was adjourned.
Suppose the auction sale was scheduled today but was not
finished on the same day. Then we can continue tomorrow.
Suppose we will continue next week. Then both parties must
agree by written consent of the judgment obligor and oblige
if we will postpone it to another date.
Do you know why these things are very important?
Because you already advertised that it will be held on this day.
So any change on the date has to be strictly complied with.
What properties can be sold at public auction?
Either real or personal property
Two types of Personal Property
1. One capable of manual delivery
2. One not capable of manual delivery (intangibles)
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What is the procedure for the sale of personal property
capable of manual property and one not capable of
manual delivery?
You have Sections 23 and 24.
When it comes to real property, what is the
procedure?
The procedure is Section 25.
Conveyance to Purchaser of Property Sold
Section 23. Conveyance to purchaser of personal
property capable of manual delivery. – When the
purchaser of any personal property, capable of manual
delivery, pays the purchase price, the officer making the sale
must deliver the property to the purchaser and, if desired,
execute and deliver to him a certificate of sale. The sale
conveys to the purchaser all the rights which the judgment
obligor had in such property as of the date of the levy on
execution or preliminary attachment.
Personal Property
The sale conveys to the purchaser all the rights which the
judgment obligor had in such property as of the date of the
levy on execution or preliminary attachment.
In the execution sale, the property that is sold shall be
immediately conveyed by the sheriff to the highest bidder if
what was sold is a personal property.
If what was sold is a car and the sheriff awarded it to Mr. A
who was the highest bidder, Mr. A must be ready to pay the
amount immediately. The sheriff thereafter will issue to Mr. A
a certificate of sale. The moment a certificate of sale is issued
to Mr. A, ownership is immediately transferred to him.
In fact, ownership will retroact to the time that the car was
levied by the sheriff – not from the time Mr. A delivered the
purchase price. It will retroact to the time of the levy.
What is the significance of that?
If the judgment debtor sold the car to another person before
the execution sale but AFTER the levy, Mr. A has a preferred
right as against the buyer of the car because his ownership of
the car will retroact to the time of the levy or to the time of
attachment.
If the property sold is a personal property, immediate transfer
of ownership takes place. The property shall be delivered to
you immediately.
What is the procedure for the sale of property capable
of manual delivery?
When the property is CAPABLE OF MANUAL DELIVERY, and
you are the highest bidder, I will deliver the car to you, and
execute and deliver to you a certificate of sale. The certificate
of sale should be signed by the sheriff to prove that you are
the highest bidder. And with that certificate of sale, you can
register that with the LTO. Automatically, the LTO will transfer
the ownership and the registration of the car in your name.
Section 24. Conveyance to purchaser of personal
property not capable of manual delivery. – When the
purchaser of any personal property, not capable of manual
delivery, pays the purchase price, the officer making the sale
must execute and deliver to the purchaser a certificate of sale.
Such certificate conveys to the purchaser all the rights which
the judgment obligor had in such property as of the date of
the levy on execution or preliminary attachment.
Bayocboc notes as amended by KGM
Personal Property not capable of Manual Delivery
If the property sold is not capable of manual delivery, the
ownership is transferred upon the delivery to you by the
sheriff of the Certificate of Sale. It will still retroact to the time
of the levy.
Examples: airplane, ship
What is the procedure for the sale of property NOT
CAPABLE of MANUAL DELIVERY? Those intangible
assets?
There is nothing to physically give you. But according to
Section 24, the officer making the same must execute and
deliver to the purchaser a certificate and that is actually
tantamount to delivery already.
When you buy a personal property at an auction sale
and the sheriff executes a certificate of sale in your
favor, do you become the owner of the property?
Both sections say, “the sale conveys to the purchaser all the
rights which the judgment obligor have in such property as of
the date of the levy on execution.” At the sale, you acquire all
the rights which the obligor had in such property. You become
the owner because you acquire the judgment obligor’s right
of ownership over such property.
BUT suppose the obligor holding the property is not the owner
of the property although he has some right over the property
and his rights where sold, then you only acquire whatever
rights he has over the property. You do not acquire ownership.
A spring cannot rise higher than its source.
Example: You are the defendant but you enjoy rights over the
property as usufructuary – you are the beneficial owner of the
property but not the naked owner. And your rights as
usufructuary were levied. I am the purchaser. Can I acquire
naked ownership? Of course NOT. I only acquire beneficial
ownership. I only acquire whatever right the debtor has over
the property.
In Leyson v Tanada, the court held that “At a sheriff’s sale
they do not sell the land advertised to sell, although that is a
common acceptation, but they simply sell what interest in that
land the judgment debtor has; and if you buy his interest, and
it afterwards develops that he has none, you are still liable on
your bid, because you have offered so much for his interest in
open market, and it is for you to determine before you bid
what is his interest in the property.”
So, it is for you to determine what his interest is before you
bid. That is why you look at the sheriff’s notice of sale, there
is a warning: “Notice to prospective bidders. You are advised
to find out whatever interest the debtor has.”
Do not confuse this with private sale of property- warranty
against eviction- this is not present in sheriff’s sale. The sheriff
does not warrant the ownership of the property. The law only
warrants the guarantee that you will acquire whatever interest
he has. And if his interest is less than what you expect, then
sorry. This is a case of caveat emptor- buyer beware. This is
the thing you have to remember about auction sale.
Section 25. Conveyance of real property; certificate
thereof given to purchaser and filed with registry of
deeds. – Upon a sale of real property, the officer must give
to the purchaser a certificate of sale containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
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Civpro | Premid Notes
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one (1)
year from the date of the registration of the certificate of sale.
Such certificate must be registered in the registry of deeds of
the place where the property is situated.
Real Property
The officer must give to the purchaser a certificate of sale
containing:
a. A particular description of the property sold
b. The price for each distinct or parcel
c. The whole price paid by him
d. A statement that the right of redemption expires one year
from the date of registration of the certificate of sale.
Such certificate must be registered in the Registry of
Property of the place where the property is situated.
It is different if what was sold during the execution sale is a
real property. If what is sold is real property, ownership is not
immediately transferred to the buyer.
What the sheriff will issue to him is only a certificate of sale
but that certificate of sale will not transfer ownership of the
real property to the highest bidder. It is only an evidence that
he bought the property in the execution sale but he is not yet
the owner of the property.
Why?
Because the judgment debtor is still given the right to redeem
the property within 1 year from the registration of the
certificate of sale. IOW, the right of redemption on the part of
the judgment debtor will start to run from the time of the
registration of the certificate of sale.
Where is it registered?
In the Office of the Registry of Property or the Registry of
Deeds in the place where the property is located
It is incumbent upon the purchaser of a real property in an
execution sale to immediately register the Certificate of Sale
that was issued to him by the Sheriff to the Registry of Deeds
so that the 1 year redemption period will begin to run. If he
will not register it, mas malipay ang judgment debtor because
his period to redeem will be extended.
What is the main difference between a sale of personal
property under Section 23 and sale of real property
under Section 25?
When the property sold at public auction is real property, the
debtor has one (1) year to redeem the property. That’s what
you call the RIGHT OF REDEMPTION from the purchaser. But
if the property sold at public auction is personal property, like
cars or appliances, there is no right of redemption.
There is no right of redemption in personal property. That is
only recognized in real property. So if your (personal) property
is sold at public auction, and then there is a highest bidder,
you cannot say, “Anyway, pwede ko namang bawiin iyon.”
NO, wala iyang bawi, kanya na yan. But if the property sold
at public auction is real property, that is not kissing your land
goodbye. You have one year to redeem it. That is your last
chance.
Sale of interest or right of the debtor on the property
There is no warranty against eviction. Caveat emptor rule
applies.
Bayocboc notes as amended by KGM
To Summarize:
If you are the highest bidder, when do you acquire
ownership of the property sold in an auction sale?
It depends whether the property sold is personal or real:
a. If it is personal property, the title is transferred after
payment of the purchase price and delivery upon the
purchaser. Delivery is either physical or symbolic
b. If it is real property, the title is transferred, not after the
auction sale, but after the expiration of the right to
redeem.
There is no right of redemption under personal property. It
can only be exercised in real property.
Now, take note that the period to redeem is ONE YEAR FROM
THE DATE OF THE REGISTRATION of the certificate of sale in
the office of the registrar of deeds. It is NOT from the date of
the auction sale.
Is the one year under the present rule and the 12
months under the old rules the same?
No, and we know that 12 months is 360 days. One month is
30 days times 12 is 360 days. But one year is 365 days. So
they are not the same.
Can you attack the validity of an auction sale?
GR: No, you cannot attack the auction sale on the
presumption that every fair sale is final. There is a
presumption of regular performance of duty by the sheriff.
XPN:
1. When it is shown from the nature of the irregularity or
from intrinsic facts injury resulted therefrom. Meaning,
there were serious irregularities committed by the officer
in conducting the sale like no publication, no notice, no
prior levy, etc.
a. Irregularities such as (1) no publication; (2) no notice;
or (3) no prior levy
2. When the price obtained at the execution sale is
shockingly inadequate and it is shown that a better price
can be obtained as a resale. Meaning, the highest bid is
shockingly inadequate.
XPN to the XPN: The rule that you can question the validity
of the auction sale if the price obtained is shockingly
inadequate applies ONLY when the property sold is PERSONAL
property. The exception does not apply when the property
sold is real property because if the property sold is a personal
property, there is no right of redemption. But if the property
sold is real property, you cannot complain because, anyway,
you have one year to pay and the redemption price is lower.
So, you are not really prejudiced. So why are you
complaining? That’s what the SC said in the case of Ramos v
Pablo.
Example: If the property subject to execution is a car worth
800K and was sold only for 100K, that is unfair to the
judgment debtor. 100K ra ang madeduct sa iyang utang. So,
the judgment debtor can complain on the ground of gross
inadequacy of the sale of personal property.
Certificate of Sale Where Property Claimed by Third
Person
Section 26. Certificate of sale where property claimed
by third person. – When a property sold by virtue of a writ
of execution has been claimed by a third person, the
certificate of sale to be issued by the sheriff pursuant to
sections 23, 24 and 25 of this Rule shall make express mention
of the existence of such third-party claim.
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Civpro | Premid Notes
Note: If the property sold at public auction is a subject of a
third party claim under Section 16, the certificate of sale to
the property is issued subject to the outcome of the third party
claim by a stranger.
Who May Redeem Real Property in Execution Sales
Section 27. Who may redeem real property so sold. –
Real property sold as provided in the last preceding section,
or any part thereof sold separately, may be redeemed in the
manner hereinafter provided, by the following persons:
(a) The judgment obligor, or his successor in interest in the
whole or any part of the property;
(b) A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, or on some part
thereof, subsequent to the lien under which the property was
sold. Such redeeming creditor is termed a redemptioner.
Who are entitled to redeem real property?
1. The judgment obligor or his successor-in-interest
2. A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, subsequent
to the lien under which the property was sold. He is
known as the REDEMPTIONER.
Judge Q: To identify him, he is called the redemptioner. The
right of redemption is only available for execution sales of real
property as well as extrajudicial foreclosure of real property
under Act 3135. Right of redemption is not available under
judicial foreclosure. What is available is equity of redemption.
Note: A mortgagee can be a redemptioner even if his
mortgage has not yet matured, but his mortgage contract
must have been executed after the entry of judgment.
Generally, in judicial foreclosure sale, there is no right of
redemption, but only equity of redemption. In sale of estate
property to pay off debts of the estate, there is no redemption
at all. Only in extrajudicial foreclosure sale and sale on
execution is there the right of redemption.
Judgment Obligor or his Successors-in-Interest
Judgment obligor is clear – the defendant who lost the case –
the defendant whose property was levied. Or, his successor-
in-interest.
Who are these successors-in-interest?
1. The heirs
2. Any person, even not related to the judgment debtor, to
whom the right of redemption was transferred to by the
judgment debtor.
Remember that the right of the debtor to redeem the property
is a transferrable right.
For EXAMPLE: During the one-year period to redeem, the
judgment debtor died. So it could be his heirs, his children,
his spouse who could exercise the right to redeem because
they step into his shoes. Also, successor-in-interest would also
refer to a person to whom the obligor assigned or transferred
his right to redeem.
Can the defendant sell, aside from transferring, his
right to another person?
YES, because the right to redeem is property by itself. My right
to redeem is also property such as an interest to the real
property which can be the subject matter of a sale.
Bayocboc notes as amended by KGM
Example: “Alright, may property ako worth P5 million. Na-
sheriff for P2 million. Wala na, hindi ko na kaya. Ibenta ko sa
iyo for P3 million. Give me P1 million cash at ikaw na ang mag
redeem sa purchaser.” Ginansiya ka pa rin di ba? P5 million
gud iyon. So I can sell, and once I sell the right to redeem to
you, you are classified as successor-in-interest for the
judgment obligor.
Redemptioners
A redemptioner is a creditor having a lien by virtue of an
attachment, judgment or mortgage on the property sold, or
on some part thereof, subsequent to the lien under which the
property was sold.
ILLUSTRATION: Suppose there is a title owned by X and he
has four (4) creditors. Let’s say the property is worth P10
million and he owes A for P2 million. So A levied the property.
Now there’s another judgment in favor of B and there is no
other property, ito na lang. So ang ginawa ni B, tinatakan niya
– another P2 million.
Under the Law on Land Titles and Deeds, B has inferior rights.
In other words, the right of A is superior to the right of B. A
has no obligation to respect the right of B but B is obliged to
respect the right of A. And Assuming that there is a third
creditor – C – for another P2 million. Thus, subsequent holder
din si C. If D is also a creditor, apat na sila.
Of course, the right of A is superior. He levies the property,
may one year to redeem. Sabi ni X, “Wala na akong property,
so ano pang pakialam ko kay B?” Suppose X will not redeem,
so A becomes the owner after one year. What happens to B,
C and D? Bura lahat kayo because you are underneath. A has
no obligation to respect your liens.
In other words, A acquires the entire property for only P2M
because hindi na interesado si X. Shempre si B interesado. So
B will pay A within the redemption period para matanggal si
A. Yung utang ni X na P2M binayaran niya kay A. So P4 million
na ang hawak ni B. And B will now be the number one. B will
now acquire the property. Pero sabi ni C, “Hindi pwede iyan,
lugi ako!” Kasi pagna- acquire na ni B ang property, patay na
naman si C and D. Sabi ni C, “Bababuyin, ah este... Babayaran
kita (B)! O ayan ang P4 million. Saksak mo sa baga mo!” D
can do the same thing to C.
Iyan ang tinatawag na redemptioners – people who have lien
subsequent because that is your only way to protect your lien
over the property. Anyway, even if D will pay everybody, hindi
pa rin lugi because the property is worth P10 million. But he
spent P8 million because he had to buy or redeem it from
people who are ahead of him. That is the illustration of
redemptioners, they have a personality or a right to redeem
the property from whoever is ahead of him in order to protect
his lien over the property because if he will not redeem, the
quickest one will acquire the property free from any lien or
encumbrance. Eh, kung wala na yung property? Patay na ako.
What property will I get to satisfy the account wala na akong
property, isa nalang. That is the rule on redemption. That is
what Section 27 is all about.
Take note that redemptioners cannot redeem if the judgment
debtor redeems.
Time and Manner of, and Amounts Payable on,
Successive Redemptions; Notice to be Given and Filed
Section 28. Time and manner of, and amounts payable
on, successive redemptions; notice to be given and
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filed. – The judgment obligor, or redemptioner, may redeem
the property from the purchaser, at any time within one (1)
year from the date of the registration of the certificate of sale,
by paying the purchaser the amount of his purchase, with one
per centum per month interest thereon in addition, up to the
time of redemption, together with the amount of any
assessments or taxes which the purchaser may have paid
thereon after purchase, and interest on such last named
amount at the same rate; and if the purchaser be also a
creditor having a prior lien to that of the redemptioner, other
than the judgment under which such purchase was made, the
amount of such other lien, with interest.
Property so redeemed may again be redeemed within sixty
(60) days after the last redemption upon payment of the sum
paid on the last redemption, with two per centum thereon in
addition, and the amount of any assessments or taxes which
the last redemptioner may have paid thereon after redemption
by him, with interest on such last-named amount, and in
addition, the amount of any liens held by said last
redemptioner prior to his own, with interest. The property may
be again, and as often as a redemptioner is so disposed,
redeemed from any previous redemptioner within sixty (60)
days after the last redemption, on paying the sum paid on the
last previous redemption, with two per centum thereon in
addition, and the amounts of any assessments or taxes which
the last previous redemptioner paid after the redemption
thereon, with interest thereon, and the amount of any liens
held by the last redemptioner prior to his own, with interest.
Written notice of any redemption must be given to the officer
who made the sale and a duplicate filed with the registry of
deeds of the place, and if any assessments or taxes are paid
by the redemptioner or if he has or acquires any lien other
than that upon which the redemption was made, notice
thereof must in like manner be given to the officer and filed
with the registry of deeds; if such notice be not filed, the
property may be redeemed without paying such assessments,
taxes, or liens.
Judgment Obligor or redemption may redeem at any time
within from the date of the registration of the Certificate of
Sale by paying the purchaser:
a. The amount of his purchase price (amount of
redemption)
b. Amount of any assessments or taxes which the purchaser
may have paid after purchase
c. If the purchaser be also a creditor having a prior lien to
that of the redemptioner, other than the judgment under
which such purchase was made, the amount of such lien
d. With 1 percent per month interest up to the time of
redemption
Property redeemed may again be redeemed within 60 days
after the last redemption by a redemptioner, upon payment
of:
a. The sum paid on the last redemption, with additional 2
percent
b. The amount of any assessments or taxes which the last
redemptioner may have paid thereon after redemption by
him, with interest
c. The amount of any liens held by said last redemptioner
prior to his own, with interest
ILLUSTRATION: Brown Sugar is a judgment obligor. She
has four creditors (A, B, C, and D) and all of them obtained
judgment against her and all of them levied on the same
property. Brown Sugar is given one year from the registration
Bayocboc notes as amended by KGM
of the sale to redeem it from A. Now, suppose SUGAR cannot
redeem, B will be the one to redeem because the first
redemptioner and the judgment obligor have one year to
redeem from the date of registration. That is what Section 28
says “the judgment obligor, or redemptioner.” Now, C is given
60 days to redeem. After that, wala ng right. Suppose C was
able to redeem, D has another 60 days to redeem from C.
So what is the period of redemption?
There are two periods of redemption: The judgment obligor
and first redemptioner are given ONE YEAR from the date of
registration of the certificate of sale to redeem and after that
all subsequent redemptioners are given 60 days.
So the second redemptioner can redeem it within 60 days. So,
within 60 days, the 3rd redemptioner can redeem it. Pasa yan,
in order that the redemptioner can protect their lien over the
property. So, the redemption period is ONE YEAR and 60
DAYS
respectively.
Judge Q: The one who will recover within 60 days is known
as the subsequent redemptioner.
Suppose Brown Sugar or B would like to redeem the
property from A. How much will the property be
redeemed?
Under Section 28, the purchase or the bid price for the
property PLUS one percent per month interest, and
reimbursement for taxes of the property with interest also.
But definitely, the redemption price = the bid price + 1%
interest month. So, if you will redeem after one year, the bid
price and 12% of the bid price.
Another Example:
The debtor was not able to pay his loan obligation to the
creditor. The creditor filed a case against him; he lost the
case; the sheriff levied the property of the debtor, which is a
parcel of land. It was sold in an execution sale, and it was
bought by Mr. X for P1Mn.
The land is worth P3Mn, but it was bought for only P1Mn by
Mr. X. Now, while the case was ongoing, the same debtor has
another creditor that he has not paid. So that other creditor,
Mr. A, filed a case against him and he also won the case. And
he also levied the same property that was already levied also
previously by the original creditor. Or, another one, Mr. B, filed
a case against the same debtor, and he was able to secure a
writ of attachment on the same property that was already
previously levied in favor of the original creditor. And there’s
another creditor, Mr. C, who claims that the property was
mortgaged to him by the debtor. But the mortgage was done
after it was already levied by the original creditor.
In other words, Mr. A acquired a lien over the property that
was already sold to Mr. X by virtue of a judgment by the court.
so, he was able to levy the property. Mr. B was able to acquire
a lien on the same property by virtue of a writ of attachment
issued by the court. And Mr. C acquired a lien over the same
property by virtue of a mortgage. When the debtor failed to
pay him, he foreclosed the mortgage. But since the rights of
Mr. A, B and C were acquired after the property was already
levied by the original creditor, then Mr. A, B and C cannot
impose their rights superior to that of the original creditor. But
they can, however, exercise the right of redemption. They can
redeem the same property from Mr. X, who is the buyer of the
property in the execution sale.
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Now, they can do that only if the original debtor fails to
redeem it within the period of one year. Okay, so this is how
it will happen.
Now, Mr. X bought the property in the execution sale, so he
is the buyer of the property. A certificate of sale was issued to
him by the sheriff. Now, the original debtor intimated to his
other debtors creditors, Mr. A, B and C that he could no longer
redeem that property. He has no money to redeem the
property for P1Mn.
A, B and C can redeem the property from X because they are
all redemptioners. They are all considered redemptioners. Any
one of them can redeem it from Mr. X, the purchaser.
Paunahay lang, kinsay makauna nila.
Effect of Redemption by Judgment Obligor, and a
Certificate to be Delivered and Recorded Thereupon;
to Whom Payments on Redemption Made
Section 29. Effect of redemption by judgment obligor,
and a certificate to be delivered and recorded
thereupon; to whom payments on redemption made.
– If the judgment obligor redeems, he must make the same
payments as are required to effect a redemption by a
redemptioner, whereupon, no further redemption shall be
allowed and he is restored to his estate. The person to whom
the redemption payment is made must execute and deliver to
him a certificate of redemption acknowledged before a notary
public or other officer authorized to take acknowledgments of
conveyances of real property. Such certificate must be filed
and recorded in the registry of deeds of the place in which the
property is situated, and the registrar of deeds must note the
record thereof on the margin of the record of the certificate
of
sale. The payments mentioned in this and the last preceding
sections may be made to the purchaser or redemptioner, or
for him to the officer who made the sale.
So in the previous example, how much will Mr. A pay
Mr. X?
Mr. A has to pay Mr. X the P1Mn the latter paid in the
execution sale plus 1% interest plus whatever expenses or
taxes was paid by Mr. X in connection to the purchase of that
property. So, tanan gasto ni Mr. X, plus 1% interest per
month.
Now, after Mr. A redeemed the property, Mr. B can redeem
the property also from Mr. A. But, he must do it within 60 days
from the time that Mr. A redeemed the property from Mr. X.
And if Mr. B redeems the property from Mr. A, he must
reimburse Mr. A for all the expenses that the latter paid for
redeeming that property plus 2% interest per month.
So, Mr. B redeemed the property from Mr. A. Mr. C can
redeem the property from Mr. B also. In the same manner, he
will have to reimburse Mr. B for all that he has paid, plus 2%
interest per month.
So, all the redemptioners – Mr. A, B and C – can redeem it
from the purchaser, bisag asa nilang tulo ang makaredeem.
Magpaunhanay na lang sila. It’s not that any of them will be
given preference. But the first one who redeems it, the other
one can redeem it from him; and the other one can also
redeem it from the second redemptioner.
Suppose Tikla redeems the property from Joshua. If
the sheriff will execute in favor of Tikla a certificate of
redemption, to whom should Tikla pay?
Bayocboc notes as amended by KGM
The law says she can pay directly to the petitioner, the
redemptioner or the person who made the sale.
Proof Required of Redemptioner
Section 30. Proof required of redemptioner. – A
redemptioner must produce to the officer, or person from
whom he seeks to redeem, and serve with his notice to the
officer a copy of the judgment or final order under which he
claims the right to redeem, certified by the clerk of the court
wherein the judgment or final order is entered; or, if he
redeems upon a mortgage or other lien, a memorandum of
the record thereof, certified by the registrar of deeds; or an
original or certified copy of any assignment necessary to
establish his claim; and an affidavit executed by him or his
agent, showing the amount then actually due on the lien.
How are they going to exercise that right of
redemption?
If you are a redemptioner, you have to notify the sheriff that
you are going to exercise your right of redemption as a
redemptioner. And to prove that you are a redemptioner, you
show to the sheriff the basis of your being a redemptioner.
When Redemptioners Cannot Redeem
When the ORIGINAL OWNER wants to redeem the property
from B, there is NO NEED for him to prove his right as a
judgment debtor. The judgment debtor has the automatic
right to redeem.
But when it is B, C or D (REDEMPTIONERS) who wants to
redeem, they MUST PROVE to the sheriff that they are
qualified to redeem. They must prove their status because not
every person in the world has the right to redeem. The right
to redeem is only given to the debtor, the successor-in-
interest or the redemptioner. Thus, you must prove your
personality to effect redemption.
Partial Redemption (General Banking Act)
Now, when you redeem the property from the purchaser, all
you have to pay is the amount that the purchaser has paid
plus interest and other expenses or taxes. But, this will not
apply under the General Banking Act. But if the original
creditor is the bank, it is not enough that he will pay the value
of the property bought by the purchaser. He must pay his
entire obligation to the bank. What do I mean by that?
If the debt of the debtor to the bank is 1Mn, and his land was
foreclosed by the bank – because it was the collateral or the
bank filed against him and it was levied by the sheriff and sold
in an execution sale – the land was bought only for P700k. If
the debtor would decide to redeem it from the purchaser, he
will not pay just the P700k. He must pay the P1Mn he owes
to the bank – P700k to the purchaser, and P300k to the bank.
The bank should be fully paid. That is the rule under the
General Banking Act. So, it will not apply to PNB, DBP and
other banking institutions. So that is the rule when it comes
to redemption of property.
Manner of Using Premises and Right to Fruits Pending
Redemption
Section 31. Manner of using premises pending
redemption; waste restrained. – Until the expiration of
the time allowed for redemption, the court may, as in other
proper cases, restrain the commission of waste on the
property by injunction, on the application of the purchaser or
the judgment obligee, with or without notice; but it is not
waste for a person in possession of the property at the time
of the sale, or entitled to possession afterwards, during the
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Civpro | Premid Notes
period allowed for redemption, to continue to use it in the
same manner in which it was previously used; or to use it in
the ordinary course of husbandry; or to make the necessary
repairs to buildings thereon while he occupies the property.
Judge Q: Section 31 Specifically affords certain rights to a
judgment debtor. He is entitled to the possession of the
property until the expiration of the period of redemption
because he has option to redeem. It’s proper that the property
not be turned over yet. He also has the right to collect the
rents and profits until the period of redemption (he can still
enjoy the fruits), to use the property as it was previously used
and to make the necessary repairs and use it in the ordinary
course of husbandry or the manner of taking care of the
property so these are the rights of the judgment debtor while
the period of redemption has not yet expired.
Problem: Suppose X is the debtor, A is the purchaser
because the highest bidder could be any person. During the
1-year period to redeem, who is in possessor of the property?
The purchaser or the debtor?
The debtor. During the one-year period, it is his. The buyer or
the purchaser cannot take over during the institution. He has
to wait for the one-year period to expire before he can take
over. Therefore, X continues to occupy the property. He
continues to use it the same manner it was previously used.
Use it in the ordinary course of husbandry, to make the
necessary repairs to buildings thereon while he occupies the
property.
Suppose 8 months has passed. X said, “Mukhang wala
na akong pag-asa. Hindi ko na ito mababayaran. Sige,
wasakin ko na lang ang property. Sirain ko na lang. I
will make a waste of the land. I will cut all the coconut
trees. I will destroy all the improvements. Para pag-
take-over mo, wala na. Bwahahaha!” What is the
remedy of A?
He can ask the court to issue a writ of injunction according to
Section 31 – an injunction to restrain the commission of waste
on the property. So, you can also stop him by injunction.
Section 32. Rents, earnings and income of property
pending redemption. – The purchaser or a redemptioner
shall not be entitled to receive the rents, earnings and income
of the property sold on execution, or the value of the use and
occupation thereof when such property is in the possession of
a tenant. All rents, earnings and income derived from the
property pending redemption shall belong to the judgment
obligor until the expiration of his period of redemption.
Note: Section 32 is the continuation of Section 31.
My property was sold on execution in your favor. But
my property earns income. May mga tenants diyan na
nagbabayad ng renta. During the one-year period,
who will get the rentals? The purchaser or the debtor?
The debtor. He continues to receive all the earnings. For
defensive purposes, he is still the owner. You wait for the one-
year redemption period to expire to get the income.
What happens if after the lapse of one year there is no
redemption? What is the next step?
That is Section 33.
Deed of Possession after Expiration of Redemption
Period- Retroacts to the Time of Levy
Section 33. Deed and possession to be given at
expiration of redemption period; by whom executed or
Bayocboc notes as amended by KGM
given. – If no redemption be made within one (1) year from
the date of the registration of the certificate of sale, the
purchaser is entitled to a conveyance and possession of the
property; or, if so redeemed whenever sixty (60) days have
elapsed and no other redemption has been made, and notice
thereof given, and the time for redemption has expired, the
last redemptioner is entitled to the conveyance and
possession; but in all cases the judgment obligor shall have
the entire period of one (1) year from the date of the
registration of the sale to redeem the property. The deed shall
be executed by the officer making the sale or by his successor
in office, and in the latter case shall have the same validity as
though the officer making the sale had continued in office and
executed it.
Upon the expiration of the right of redemption, the purchaser
or redemptioner shall be substituted to and acquire all the
rights, title, interest and claim of the judgment obligor to the
property as of the time of the levy. The possession of the
property shall be given to the purchaser or last redemptioner
by the same officer unless a third party is actually holding the
property adversely to the judgment obligor.
Judge Q: So the purchaser is entitled to possession if no
redemption has been made within one year so just take note
of the redemption price as stated in Section 28 whereas after
the period of redemption, the purchaser is now entitled to
possession.
Note: If the period to redeem expires, no more right of
redemption. What will happen? The sheriff now will now
execute in favor of the highest bidder or purchaser what is
known as the final deed of sale or DEED OF CONVEYANCE.
Remember that there are two documents here which the
sheriff executes in case of real property.
What are the two documents which the sheriff
executes in case of real property?
1. Certificate of sale
a. After the auction sale, he will execute in your favor
the certificate of sale under Section 25, by the time
you register that, you start counting the one year.
2. Deed of conveyance
a. If after one year there is no redemption, a deed of
conveyance is executed.
Certificate of sale
1. The officer must give to the purchaser a certificate of sale
containing:
a. A particular description of the real property sold
b. The price paid for each distinct lot or parcel
c. The whole price paid by him
d. A statement that the right of redemption expires one year
from the date of the registration of the certificate of sale
2. Must be registered in the registry of deeds of the place
where the property is situated. From registration of said
certificate, the 1 year redemption period starts
3. Certificate of sale after execution sale is merely a
memorial of the fact of sale and does not operate as
conveyance.
Deed of Conveyance
1. Executed upon the expiration of the period to redeem
a. The purchaser or redemptioner shall be substituted to
and acquire all the rights, title, interest and claim of
the judgment or obligor to the property as of the time
of the levy
2. Executed by the officer making the sale
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3. Under the expiration of the right of redemption
a. Hence, the certificate of sale of real property does not
confer any right to the possession or ownership, of
the real property purchased. It is the deed of sale
executed by the sheriff at the expiration of the period
of redemption which entitles the purchaser to
possession of the property sold.
Which of the two documents transfers the ownership
to the purchaser?
Only the deed of conveyance transfers title to the property.
The certificate of sale one year ago does not transfer the
ownership of the land to the purchaser. It is only a memorial
that you are the highest bidder, that you paid so much and
that you are the purchaser but there is no transfer of
ownership. Only the final deed of sale in Section 33 conveys
title to property. So do not confuse the sheriff’s certificate of
sale under Section 25 with the final deed of sale under Section
33. Although in an extra-judicial foreclosure, there is no need
of deed of sale. Only affidavit of consolidation is needed under
the mortgage law.
How can the sheriff give it to you? Suppose the debtor
refuse to vacate, is there a need to file another action
of unlawful detainer or forcible entry?
There is no more need of filing another action to eject the
former owner. The procedure is, the purchaser can ask the
court to issue a WRIT OF POSSESSION under the Property
Registration Decree to take over the property.
What if the property is no longer in the possession of
the judgment debtor?
The Supreme Court said that if the property is no longer in the
possession of the judgment debtor, at the time when the final
deed of sale was executed – meaning, there is already another
person occupying the land – the court cannot remove that
person summarily by issuing a writ of possession. So the court
will not issue a writ of possession right away. Because that
person must be given an opportunity to be heard what reason
he has why he occupied the land. For all you know, he might
have a better right to the land, as he might have acquired it
before the levy. So, dili pwede writ of possession basta the
property is in the hands of a third person. There should be a
hearing first before the court will place the purchaser in
possession of the property.
Now, if there is no one occupying it, and the debtor voluntarily
surrenders possession of the land, then the purchaser now
will become the absolute owner of the land from the moment
the sheriff executed to him a final deed of sale. In fact, the
ownership of the purchaser will retroact to the time of the
levy. In other words, it is as if, under the law, he is the owner
of the property not from the time he bought it from the
execution sale but from the time the property was levied by
the sheriff. That’s why, as I have said, it’s very important to
note when the ownership will be conveyed because if there
are transfers made by the original debtor after the levy, that
transfer or conveyance will not prevail against the right of the
purchaser because the ownership of the purchaser is deemed
to retroact to the time of the levy.
Is there a deadline for a judgment debtor to claim
exemption from execution of his property? Can the
debtor still raise the issue that the property is exempt
from execution after the expiration of the redemption
period?
Bayocboc notes as amended by KGM
The rules do not expressly mention up to what point “although
the rules of court does not prescribe the period within which
to claim the exemption, the rule is, nevertheless, well-settled
that the right of exemption must be claimed by the debtor
himself at the time of the levy or within a reasonable time
thereafter.” What is “reasonable time”?
“’REASONABLE TIME,’ for purposes of the law on exemption,
does not mean a time after the expiration of the one-year
period for judgment debtors to redeem the property sold on
execution, otherwise it would render nugatory final bills of sale
on execution and defeat the very purpose of execution - to
put an end to litigation.”
The Supreme Court held that claims for exemption from
execution of properties under Section 13 must be presented
before its sale on execution by the sheriff.
Meaning, you raise the issue of exemption at the time of the
levy but not later that the auction sale. There is a deadline
because if you claim exemption after that, it is too late. Thus,
the claim for exemption must be raised. That is the ruling in
the case of Gomez v Galeone.
Recovery of Price if Sale is Not Effective
Section 34. Recovery of price if sale not effective;
revival of judgment. – If the purchaser of real property sold
on execution, or his successor in interest, fails to recover the
possession thereof, or is evicted therefrom, in consequence of
irregularities in the proceedings concerning the sale, or
because the judgment has been reversed or set aside, or
because the property sold was exempt from execution, or
because a third person has vindicated his claim to the
property, he may on motion in the same action or in a
separate action recover from the judgment obligee the price
paid, with interest, or so much thereof as has not been
delivered to the judgment obligor; or he may, on motion, have
the original judgment revived in his name for the whole price
with interest, or so much thereof as has been delivered to the
judgment obligor. The judgment so revived shall have the
same force and effect as an original judgment would have as
of the date of the revival and no more.
Judge Q: So the option of the purchaser in the execution sale
is to recover the purchase price from the judgment obligor.
Revival of Judgment by Motion
Now, if the purchaser of the property cannot take possession
of the property – because as I have said, when the period to
redeem the property expires, and the sheriff would now like
to put the possession with the purchaser of the property – it
turns out that somebody is already occupying the property.
And that somebody happens to prove that he has a better
right than the purchaser. So, he cannot be ousted.
So, what will happen? The purchaser has the right to recover
the price that he paid if the sale is not effective. Or if not, the
purchaser can ask the court to revive the judgment and put
the judgment in his favor.
Recovery of purchase price if sale is not effective
If the purchaser of real property sold on execution, or his
successor in interest, (1) fails to recover the possession
thereof, or (2) is evicted therefrom, in consequence of
irregularities in the proceedings concerning the sale, or
because the judgment has been reserved or set aside, or
because the property sold was exempt from execution, or
because a third person has vindicated his claim, to the
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property, the purchaser may, on motion in the same action or
in a separate action:
a. Recover from the judgment oblige the price paid, with
interest, or so much thereof as has not been delivered to
the judgment obligor; or
b. Have the original judgment revived in his name for the
whole price with interest, or so much thereof as has been
delivered to the judgment obligor.
i. The judgment so revived shall have the same force and
effect as an original judgment would have as of the date
of the revival and no more.
Note: A purchaser’s right of possession is recognized only as
against the judgment debtor and his successor-in- interest. It
is not so against persons whose right of possession is adverse.
When a third party is in possession of the property purchased,
the possession is presumed to be based on just title – a
presumption which may be overcome by the purchaser in a
judicial proceeding for recovery of the property.
Suppose A is the highest bidder. There is a third-party
claim which turned out to be valid. So the property is
removed from A. So, paano naman si A? Nakabayad
gud siya diyan. Paano niya babawiin ang kuwarta
niya?
A’s options under Section 34:
1. Recover the money from oblige (A here is not the
judgment obligee)
2. Have the judgment revived in your name and you look
for other properties of the obligor to execute because:
a. He lost possession of the property
b. He was evicted
c. There was irregularity of the proceedings
d. The judgment appeal has been reversed or set aside
on appeal
e. The property sold was exempt from execution
f. A third person has validity of his claim of the property
Right to Contribution or Reimbursement for One of the
Several Judgment Debtors
Section 35. Right to contribution or reimbursement. –
When property liable to an execution against several persons
is sold thereon, and more than a due proportion of the
judgment is satisfied out of the proceeds of the sale of the
property of one of them, or one of them pays, without a sale,
more than his proportion, he may compel a contribution from
the others; and when a judgment is upon an obligation of one
of them, as security for another, and the surety pays the
amount, or any part thereof, either by sale of his property or
before sale, he may compel repayment from the principal.
Note: The judgment debtor, if there are several debtors, and
the judgment debtor exercise the right of redemption, he may
ask for reimbursement from the other debtors.
The judgment is against A, B, and C, solidary debtors.
A paid everything. What is the right of A?
A has the right to seek reimbursement from B and C.
Or if the surety was made to pay the loan, he can claim
reimbursement from the principal debtor. That’s under the
Law on Obligations and Contracts- right to reimbursement.
Remedies in Aid of Execution
What are the aids of a creditor in case the judgment
obligor appears to have no property that the sheriff
can levy?
These are what we call remedies in aid of execution:
Bayocboc notes as amended by KGM
1. Examination of judgment obligor
2. Examination of obligor of judgment obligor
3. Enforcement of attendance and conduct of examination
4. Obligor of judgment obligor may pay execution to oblige
5. Garnishment of income more than enough for the support
of his family
6. Appointment of receiver
7. Sale of ascertainable interest of judgment obligor in real
estate
8. Proceedings when indebtedness is denied or property
claimed by other persons
The purpose of the remedies in aid of execution is to help the
oblige realize the fruits of the judgment. It is sometimes very
hard to grasp out properties of the obligor especially if he
knows how to hide them by conveying remedies to assist him
in locating the properties of the defendant and these remedies
in aid of execution are found in Section 36 to Section 43. And
the most famous are those found in Sections 36 and 37.
Examination of Judgment Obligor
Section 36. Examination of judgment obligor when
judgment unsatisfied. – When the return of a writ of
execution issued against property of a judgment obligor, or
any one of several obligors in the same judgment, shows that
the judgment remains unsatisfied, in whole or in part, the
judgment obligee, at any time after such return is made, shall
be entitled to an order from the court which rendered the said
judgment, requiring such judgment obligor to appear and be
examined concerning his property and income before such
court or before a commissioner appointed by it, at a specified
time and place; and proceedings may thereupon be had for
the application of the property and income of the judgment
obligor towards the satisfaction of the judgment. But no
judgment obligor shall be so required to appear before a court
or commissioner outside the province or city in which such
obligor resides or is found.
Note: So under Section 36, you can ask the court to render
judgment to allow you to subpoena the obligor and take the
witness stand subject to questioning so that you can discover
where his properties are. So in effect, Section 36 is related to
modes of discovery. This is actually a mode of discovery. This
is a type of deposition taking. It is related to the subject of
deposition taking where the discovery of the witness stand to
effect execution.
Judge Q: It is by virtue of an order of the court requiring him
to be examined as to his property and income.
EXAMPLE: The sheriff did not find any property of the
obligor. So the obligee can file a motion under Section 36 for
examination of the obligor under oath hoping that in the
course of asking questions, he might make some admissions.
And the procedure is the same as in deposition but this is only
done right inside the courtroom.
Examination of Judgment Obligor When Judgment is
Unsatisfied
When Applicable
When the return of the writ issued against property of a
judgment obligor shows that judgment remains unsatisfied
Procedure
The judgment obligee, at any time after such return is made,
shall be entitled to an order from the court which rendered
the said judgment:
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a. Requiring such judgment obligor to appear and be
examined concerning his property and income before
such court or before a commissioner appointed by it, at a
specified time and place; and
b. Proceedings may thereupon be had for the application of
the property and income of the judgment obligor towards
the satisfactions of the judgment
When judgment obligor not required to appear/be examined
a. When he is required to appear before a court or
commissioner outside the province or city in which such
obligor resides or is found
b. After the lapse of the five years within which a judgment
may be enforced by motion.
Order for payment in fixed monthly installments
If upon investigation of his current income and expenses, it
appears that the earnings of the judgment obligor for his
personal services are more than necessary for the support of
his family, the court may order that:
a. He pay the judgment in fixed monthly installments
b. Upon his failure to pay any such installment when due
without good excuse, may punish him for indirect
contempt
BAR Q: The plaintiff, a Manila resident, sued the defendant,
a resident of Malolos, Bulacan, in the RTC-Manila for a sum of
money. When the sheriff tried to serve the summons with a
copy of the complaint on the defendant at his Bulacan
residence, the sheriff was told that the defendant had gone to
Manila for business and would not be back until the evening
of that day. So, the sheriff served the summons, together with
a copy of the complaint, on the defendant’s 18-year old
daughter, who was a college student. For the defendant’s
failure to answer the complaint within the reglementary
period, the trial court, on motion of the plaintiff, declared the
defendant in default. A month later, the trial court rendered
judgment holding the defendant liable for the entire amount
prayer for in the complaint.
After the judgment had become final, a writ of execution was
issued by the court. As the writ was returned unsatisfied, the
plaintiff filed a motion for an order requiring the defendant to
appear before it and to be examined regarding his property
and income. How should the court resolve the motion?
(2%)
Answer: The RTC-Manila should deny the motion because it is
in violation of the rule that no judgment obligor shall be
required to appear before a court, for the purpose of
examination concerning his property and income, outside the
province or city in which such obligor resides. In this case, the
judgment obligor resides in Bulacan
Examination of the Obligor of Judgment Obligor
Section 37. Examination of obligor of judgment
obligor. – When the return of a writ of execution against the
property of a judgment obligor shows that the judgment
remains unsatisfied, in whole or in part, and upon proof to the
satisfaction of the court which issued the writ, that a person,
corporation, or other juridical entity has property of such
judgment obligor or is indebted to him, the court may, by an
order, require such person, corporation, or other juridical
entity, or any officer or member thereof, to appear before the
court or a commissioner appointed by it, at a time and place
within the province or city where such debtor resides or is
found, and be examined concerning the same. The service of
the order shall bind all credits due the judgment obligor and
Bayocboc notes as amended by KGM
all money and property of the judgment obligor in the
possession or in the control of such person, corporation, or
juridical entity from the time of service; and the court may
also require notice of such proceedings to be given to any
party to the action in such manner as it may deem proper.
Judge Q: Take note that this remedy of the judgment creditor
can only be filed before the court or commissioner appointed
where the debtor resides or is found. No judgment obligor
shall be required to appear before the court or commissioner
outside the province where he is found.
Note: Under Section 37, you can also examine people whom
you believe owe the obligor such as his debtors, or those
holding his property, so that you can discover all his
collectibles and ask that the same be garnished. So this time,
it is the “obligor” of the judgment obligor who will be
examined.
So, if somebody would tell the plaintiff-creditor, “You know,
Mr. X is indebted to your debtor in the amount of P1Mn.
Naghilom-hilom ra na imong debtor nga naa siyay collectible
from Mr. X nga P1Mn.”
Well, you can ask the court to summon Mr. X to come to court,
and Mr. X will be asked whether or not he is indebted to your
debtor for P1Mn. If he will admit that he has a payable, then
you can ask the court to order Mr. X to hold the payment and
instead pay the money to you.
EXAMPLE: Kenneth, Thadd, and Francis owe the judgment
obligor a sum of money. The obligee can file a motion under
Section 37 to subpoena Kenneth, Thadd and Francis to find
out if it is true that they are indebted to the judgment obligor.
In this case, the oblige can as the court to garnish the money.
Examination of Obligor of Judgment Obligot
When applicable
a. When the return of a writ of execution against the
property of a judgment obligor shows that the judgment
remains unsatisfied, in whole or in part, and
b. Upon proof that a person, corporation, or other juridical
entity has property of such judgment obligor is indebted
to him
Procedure
The court may, by an order:
a. Require such person, corporation, or other juridical entity,
or any officer or member thereof, to appear before the
court or a commissioner appointed by it, at a time and
place within the province or city where such debtor
resides or is found, and
b. Be examined concerning the same
Effect of order
The service of the order shall:
a. Bind all credits due the judgment obligor and all money
and property of the judgment obligor in the possession
or in the control of such person, corporation, or juridical
entity from the time of service, and
b. The court may also require notice of such proceedings to
be given to any party to the action in such manner as it
may deem proper
Note: This is not applicable if there is no issue concerning the
indebtedness of the bank and there is no denial by the
depositor of the existence of the deposit with the bank which
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is considered a credit in favor of the depositor against the
bank.
When alleged obligor denies debt or claims property
The court may:
a. Authorize the judgment oblige to institute an action
against such person or corporation for the recovery of
such interest or debt
b. Forbid a transfer or other disposition of such interest or
debt within 120 days from notice of the order, and
c. May punish disobedience of such order as for contempt
Impropriety of an action for damages as a remedy
Where the writ of execution is unsatisfied, the remedy to
enforce it is Secs. 38-39, and not a complaint for damages.
Bar Q: The writ of execution was returned unsatisfied. The
judgment obligee subsequently received information that a
bank holds a substantial deposit belonging to the judgment
obligor. If you are the counsel of the judgment obligee,
what steps would you take to reach the deposit to
satisfy the judgment?
I would ask for a writ of garnishment against the deposit in
the bank (Rule 57, Section 9[c])
If the bank denies holding the deposit in the name of
the judgment obligor but your client’s informant is
certain that the deposit belongs to the judgment
obligor under an assumed name, what is your remedy
to reach the deposit?
I will move for the examination under oath of the bank as a
debtor of the judgment debtor (Rule 39, Section 37). I will ask
the court to issue an order requiring the judgment obligor, or
the person who has the property of such judgment obligor, to
appear before the court and be examined in accordance with
Sections 36 and 37 of Rule 39, for the complete satisfaction
of the judgment award.
Enforcement of Attendance and Conduct of
Examination
Section 38. Enforcement of attendance and conduct of
examination. – A party or other person may be compelled,
by an order or subpoena, to attend before the court or
commissioner to testify as provided in the two preceding
sections, and upon failure to obey such order or subpoena or
to be sworn, or to answer as a witness or to subscribe his
deposition, may be punished for contempt as in other cases.
Examinations shall not be unduly prolonged, but the
proceedings may be adjourned from time to time, until they
are completed. If the examination is before a commissioner,
he must take it in writing and certify it to the court. All
examinations and answers before a court or commissioner
must be under oath, and when a corporation or other juridical
entity answers, it must be on the oath of an authorized officer
or agent thereof.
Note: Section 38 is the continuation of Section 37. If the
judgment obligor, or Kenneth, Thad and Francis refuse to
comply with the subpoena, they can be punished for
contempt.
He has a third right- enforcement of attendance and conduct
of examination of these persons:
1. The judgment obligor or
2. The obligor of the judgment obligor
Obligor of Judgment Obligor May Pay Execution to
Obligee
Bayocboc notes as amended by KGM
Section 39. Obligor may pay execution against
obligee. – After a writ of execution against property has been
issued, a person indebted to the judgment obligor may pay to
the sheriff holding the writ of execution the amount of his debt
or so much thereof as may be necessary to satisfy the
judgment, in the manner prescribed in section 9 of this Rule,
and the sheriff’s receipt shall be a sufficient discharge for the
amount so paid or directed to be credited by the judgment
obligee on the execution.
Note: The obligor of the judgment obligor may pay directly to
the judgment obligee through the writ of execution
Here, there is a change of the party creditor. The best
example is garnishment from a bank. B is the debtor of the
judgment obligor. If B, instead of paying the judgment
obligor, will pay the judgment creditor, B is no longer indebted
to the judgment obligor.
Order for Application of Property or Income
The court may order any property of the judgment obligor, or
money due him, not exempt from execution, in the hands of
either himself or another person, or of a corporation or other
juridical entity, to be applied to the satisfaction of the
judgment, subject to any prior rights over such property.
After a writ of execution against property has been issued, a
person indebted to the judgment obligor may pay to the
sheriff holding the writ of execution the amount of his debt or
so much thereof as may be necessary to satisfy the judgment,
in the manner prescribed in Sec. 9, Rule 39 and the sheriffs
receipt shall be a sufficient discharge for the amount so paid
or directed to be credited by the judgment obligee on the
execution
Garnishment of Income More than Enough for the
Support of His Family
Section 40. Order for application of property and
income to satisfaction of judgment. – The court may
order any property of the judgment obligor, or money due
him, not exempt from execution, in the hands of either himself
or another person, or of a corporation or other juridical entity,
to be applied to the satisfaction of the judgment, subject to
any prior rights over such property.
If, upon investigation of his current income and expenses, it
appears that the earnings of the judgment obligor for his
personal services are more than necessary for the support of
his family, the court may order that he pay the judgment in
fixed monthly installments, and upon his failure to pay any
such installment when due without good excuse, may punish
him for indirect contempt.
Note: If upon investigation of his current income and
expenses, it appears that the earnings of the judgment obligor
for his personal services are more than necessary for the
support of his family, the court may order that he pay the
judgment obligee in fixed monthly installments, and upon his
failure to pay any such installment when due without good
excuse, may punish him for indirect contempt.
Can the salary of an employee be garnished?
Yes, IF there is excess for support of his family. Normally, you
cannot levy on the earnings of a person which he needs for
support of his family. But actually, it is not the entire earnings
because if you’re earning a lot, it is more than sufficient for
your family. So the excess of your income can be garnished
under Section 40.
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Appointment of Receiver
Section 41. Appointment of receiver. – The court may
appoint a receiver of the property of the judgment obligor;
and it may also forbid a transfer or other disposition of, or any
interference with, the property of the judgment obligor not
exempt from execution.
Note: The court may appoint a receiver who is an officer of
the court who will manage the property of the litigants
pending litigation. This remedy is found under Rule 59 on
Receivership. The purpose of receivership is to preserve the
property by placing it in the hands of the court to remove it
from the control of a party because a party may dispose of
the property.
Judge Q: If it is practical to appoint a receiver under the
circumstances. Might as well order the sheriff to levy the
property than to appoint a receiver. This is one of the
remedies if the writ of execution is returned unsatisfied.
Sale of Ascertainable Interest of Judgment Obligor in
Real Estate
Section 42. Sale of ascertainable interest of judgment
obligor in real estate. – If it appears that the judgment
obligor has an interest in real estate in the place in which
proceedings are had, as mortgagor or mortgagee or
otherwise, and his interest therein can be ascertained without
controversy, the receiver may be ordered to sell and convey
such real estate or the interest of the obligor therein; and such
sale shall be conducted in all respects in the same manner as
is provided for the sale of real estate upon execution, and the
proceedings thereon shall be approved by the court before the
execution of the deed.
Judge Q: Only the interest and not the property, where he is
a mortgagor or mortgagee.
EXAMPLE: The obligor turns out to have an interest in real
property as a mortgagee, or he has a right to redeem, or right
to foreclose, or right to repurchase. The obligee can levy on
these rights because these rights are property rights by
themselves. This time, it is not the property which is sold but
your interest.
Proceedings When Indebtedness is Denied or Property
is Claimed by Other Persons
Section 43. Proceedings when indebtedness denied or
another person claims the property. – If it appears that
a person or corporation, alleged to have property of the
judgment obligor or to be indebted to him, claims an interest
in the property adverse to him or denies the debt, the court
may authorize, by an order made to that effect, the judgment
obligee to institute an action against such person or
corporation for the recovery of such interest or debt, forbid a
transfer or other disposition of such interest or debt within
one hundred twenty (120) days from notice of the order, and
may punish disobedience of such order as for contempt. Such
order may be modified or vacated at any time by the court
which issued it, or by the court in which the action is brought,
upon such terms as may be just.
Judge Q: These are the options provided under the Rules in
the event that there is unsatisfied judgment.
EXAMPLE: The obligee cannot find any property of the
obligor. But there is a rumor that Pong owes the obligor a sum
of money. Upon examination, Pong denies indebtedness. But
Bayocboc notes as amended by KGM
the obligee believes that he has evidence that Pong owes the
obligor money. In this case, the obligee can ask the court that
he be allowed to file a collection case against Pong on behalf
of the obligor.
Can the obligee be considered as a real party in
interest in this case?
Yes, the obligee is now considered as a representative party.
Section 43 is an example of the phrase, “or a party authorized
by law or these Rules...” under Rule 3, Section 3.
Satisfaction of Judgment
Section 44. Entry of satisfaction of judgment by clerk
of court. – Satisfaction of a judgment shall be entered by the
clerk of court in the court docket, and in the execution book,
upon the return of a writ of execution showing the full
satisfaction of the judgment, or upon the filing of an admission
to the satisfaction of the judgment executed and
acknowledged in the same manner as a conveyance of real
property by the judgment obligee or by his counsel unless a
revocation of his authority is filed, or upon the endorsement
of such admission by the judgment obligee or his counsel on
the face of the record of the judgment.
What does satisfaction of judgment mean?
SATISFACTION OF JUDGMENT is the compliance with or
fulfillment of the mandate thereof
Execution is not the same as satisfaction. Execution is the
method of enforcement of a judgment. Satisfaction refers to
compliance with or fulfillment of the mandate of judgment.
Normally, execution precedes satisfaction. But you can satisfy
a judgment without execution by simply paying voluntarily.
And when the judgment is satisfied, it has to be recorded the
manner of which is found in Sections 44 and 45 – either the
sheriff himself will record “fully satisfied,” or, the creditor will
file an admission that the judgment is fully satisfied, or, the
debtor on motion will ask that it be recorded that he has
already paid.
Who may compel satisfaction of judgment?
Satisfaction of judgment may be compelled by the judgment-
creditor by means of execution, or by the judgment-debtor by
means of voluntary payment.
Can a plaintiff appeal from the judgment and at the
same time move for execution of the same? Can you
do both without being self-contradictory? Can you
demand satisfaction of judgment and at the same time
appeal said judgment?
PRIOR CASES say, you cannot do it because it is inconsistent.
When you comply with the satisfaction of judgment, you are
already accepting the correctness of judgment. But when you
are appealing it, you do not accept the same. That was the
old ruling which was MODIFIED in the case of Vital-Goson v
CA.
It depends upon the nature of the judgment as being
indivisible or not. This is the doctrine laid down by this Court
in a case decided as early as 1925, Verches v. Rios, where the
judgment is INDIVISIBLE, acceptance of full satisfaction of the
judgment annihilates the right to further prosecute the
appeal; and that even partial execution by compulsory legal
process at the instance of the prevailing party, places said
party in estoppel to ask that the judgment be amended.”
Indivisible means either you accept it as correct or you appeal.
But you can not have your cake and eat it too.
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“Where the judgment is DIVISIBLE, estoppel should not
operate against the judgment creditor who causes
implementation of a part of the decision by writ of execution.
This is the clear import of Verches and the precedents therein
invoked. The principle is fully consistent not only with the
opinion that acceptance of payment of only the
uncontroverted part of the claim should not preclude the
plaintiff from prosecuting his appeal, to determine whether he
should not have been allowed more, but also with logic and
common sense.” In other words, if a judgment is divisible,
there is no prohibition.
Example of divisible judgment: A judgment adjudicating
2 or more causes of action – I am satisfied with one cause but
I am not with the other. So, my appeal is only on the 2nd
cause of action where the award should be higher. I am not
appealing in the first cause of action and the defendant did
not also appeal. So I can move to execute that portion of
judgment, as far as the first cause of action is concerned and
continue with my appeal on the second. This is a divisible
judgment. This is allowed.
Problem: Plaintiff sues for P1 million damages. The court
gave an award of P500,000 only (one-half the damages sued
for). Defendant did not appeal because he is satisfied with the
judgement. Meaning, he accepts the liability of up to
P500,000, “Judgment is good.” Plaintiff, however, is not
satisfied, “It should be P1 million, so I will appeal.” He believes
that even if he loses the appeal, he is insured as to the
P500,000.
Can plaintiff move for the satisfaction of P500,000 and
let the other half continue on appeal?
YES, I think so. Anyway, there is no quarrel with respect to
the first half. To my mind, this is a DIVISIBLE judgment since
defendant accepts it and even if plaintiff loses appeal, the
former is still liable up to P500,000. So the plaintiff might as
well claim it now for it is final insofar as the defendant is
concerned while plaintiff’s appeal is with respect to the
balance. This is a possibility under the ruling in VITAL-GOSON.
Section 45. Entry of satisfaction with or without
admission. – Whenever a judgment is satisfied in fact, or
otherwise than upon an execution, on demand of the
judgment obligor, the judgment obligee or his counsel must
execute and acknowledge, or indorse, an admission of the
satisfaction as provided in the last preceding section, and after
notice and upon motion the court may order either the
judgment oblige or his counsel to do so, or may order the
entry of satisfaction to be made without such admission.
Section 46. When principal bound by judgment against
surety. – When a judgment is rendered against a party who
stands as surety for another, the latter is also bound from the
time that he has notice of the action or proceeding, and an
opportunity at the surety’s request to join in the defense.
Note: When there is a judgment against the surety, the
principal debtor is also bound by the judgment from the time
he has notice of the action or proceeding and an opportunity
at the surety’s request to join in the defense. The surety is
only liable legally but the real party liable is the debtor.
Res Judicata
Section 47. Effect of judgments or final orders. – The
effect of a judgment or final order rendered by a court of the
Bayocboc notes as amended by KGM
Philippines, having jurisdiction to pronounce the judgment or
final order, may be as follows:
(a) In case of a judgment or final order against a specific
thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status
of a particular person or his relationship to another, the
judgment or final order is conclusive upon the title to the
thing, the will or administration, or the condition, status or
relationship of the person; however, the probate of a will or
granting of letters of administration shall only be prima facie
evidence of the death of the testator or intestate;
(b) In other cases, the judgment or final order is, with respect
to the matter directly adjudged or as to any other matter that
could have been raised in relation thereto, conclusive between
the parties and their successors in interest by title subsequent
to the commencement of the action or special proceeding,
litigating for the same thing and under the same title and in
the same capacity; and
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been
adjudged in a former judgment or final order which appears
upon its face to have been so adjudged, or which was actually
and necessarily included therein or necessary thereto.
Note: We know what this is all about – when the matter is
already decided or finish already, you cannot re-open that
easily. The direct provision of law which enunciates that
principle is Section 47, which is composed of 3 portions:
paragraphs [a], [b] and [c].
Now, paragraph [a] is the principle of res adjudicata as applied
in judgment in rem (binding on the whole world) or at least
quasi in rem. Paragraphs [b] and [c] are the application of the
same doctrine with respect to judgment in personam (binding
only on the parties).
RES ADJUDICATA and RES JUDICATA are the same. In the
Philippines, that is influenced by Roman Law and Spanish Law
(Pua vs. Lapitan, 57 O.G. 4914) But the principle is known
worldwide, although maybe known by another name. In
Anglo-American law, it is known as the doctrine of Estoppel
By Judgment (Fajardo vs. Bayona, 98 Phil. 659). But it is the
same. The concept is similar.
What is the FOUNDATION PRINCIPLE upon which the
doctrine of res judicata rests?
It rests from the principle that parties ought not to be
permitted to litigate the same issue more than once; that
when a right or fact has been judicially tried and determined
by a court of competent jurisdiction, or where an opportunity
for such trial had been given, the judgment of the court shall
be conclusive upon the parties and those in privity with them.
Otherwise, without this doctrine, litigation would become
interminable, rights of parties would be involved in endless
confusion, courts would be stripped of their most efficient
powers, and the most important function of government, that
of ascertaining and enforcing rights, would go unfulfilled.
Requisites of res judicata
There is res judicata if the following requisites are present:
1. The judgment or order invoked as res judicata must be
final
2. The court rendering the same must have jurisdiction over
the subject matter and of the parties
3. The judgment or order must be upon the merits; and
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4. There must be, between the two cases, identity of
parties, identity of subject matter, and identity of cause
of action.
So the elements are similar with litis pendentia. Actually, they
are based on the same rule – splitting of the cause of action.
The only difference is, in litis pendentia, the first action is still
pending. In res adjudicata, the first action has already been
decided and the decision has already become final.
First requisite: Judgment of order invoked must be final
When it says ‘final’, the previous judgment has been final and
executory (Hubahib vs. Insular Drug, 64 Phil. 119) Meaning,
it can no longer be changed. This is because there is such a
thing as final and appealable. A final and executory judgment
is already beyond the power of the court to alter while a final
and appealable judgment is still subject to modification by the
appellate court.
So where there is a judgment now that you received, and
before it becomes executory, you filed another case, it is not
res judicata. It is litis pendentia because the first case is still
pending.
Example: Jessa files a case against Charles. Charles lost and
then appealed. While his appeal is pending, Jessa filed the
same case against Charles. Charles filed a motion to dismiss
the second case. The ground for the motion to dismiss should
be Litis Pendentia because while there is already a decision,
the same is not yet final and executory. It is still on appeal. In
such case, it is improper to invoke the principle of res
adjudicata because the first element is missing.
When did the first judgment become final? Is it before
the second case is filed? Or is it after the second case
is filed?
Either one. It could have been final before the filing of the
second action or after, provided when the defendant invoked
it, the first judgment is already final.
Second requisite: The court rendering the same must have
jurisdiction over the subject matter and of the parties
Meaning, the first judgment is valid because if the court never
acquired jurisdiction over the subject matter and the parties
and rendered judgment, the judgment is void and cannot be
invoked as res judicata.
May a voidable judgment be invoked as res judicata?
Yes, because such kind of judgment is binding upon the
parties until annulled.
Third Requisite: The judgment or order must be upon the
merits.
What do we mean by this? A judgment on the merits for the
purpose of res judicata is one finally settling the issues raised
in the pleadings. Normally, it is after trial when there is
presentation of evidence.
Therefore, when a complaint is dismissed for lack of
jurisdiction or improper venue, even if said dismissal becomes
final, the plaintiff can re-file the case because the dismissal
upon improper venue or lack of jurisdiction is not upon the
merits. It never dealt with the correctness or validity of the
cause of action. There should be trial, generally.
So, GENERALLY, a dismissal without a trial is not an
adjudication upon the merits EXCEPT in Rule 17, Section 3
where the case was dismissed for failure of the plaintiff to
Bayocboc notes as amended by KGM
appear during the presentation of his evidence in chief, or to
prosecute his action for an unreasonable, period of time, or
failed to comply with the rules or order of the court. There is
no trial there but according to Rule 17, Section 3, the dismissal
shall have the effect of an adjudication upon the merits. This
is the exception even if there was no trial in the first case.
Fourth requisite: There must be, between the two cases,
identity of parties, identity of subject matter and identity of
cause of action
When is there identity of parties for the purpose of res
judicata?
1. When the parties in the second action are the same as
the parties in the first action
2. When the parties in the second action are successors-in-
interest of the parties in the first action, such as heirs or
purchasers who acquired title after the commencement
of the first action.
EXAMPLE: The example I gave you, the quarrel between
parents, then the children did the same. That is the same
parties. The children are the successors-in-interest of the
original parties, although literally they are not the same
parties.
Note: The doctrine of res adjudicata applies not only to the
decisions of regular courts but can be invoked even in
administrative cases. It also applies to decisions of
administrative bodies.
When is there identity of subject matter?
There is identity of subject matter if in the second case, the
same thing is involved or included in the first case.
EXAMPLE: A judgment in an action for the recovery of a large
tract of land shall be a bar for a subsequent action for the
recovery of a smaller parcel included in the large tract.
EXAMPLE: A judgment in an action for accounting of a certain
funds would be a bar for a subsequent action for the partition
of the same funds.
EXAMPLE: A case for recovery of property was dismissed. The
losing party files, a second case for recovery of the value of
the property. In this case, there is res adjudicata. So, you can
not deviate. Kahit konting retoke lang, it is the same.
That is why the SC had to give some tests to determine
whether the causes of action are the same or not. Among
these tests given by the Court:
When is there identity of causes of action for the
purpose of res judicata?
There is identity of causes of action for the purpose of res
judicata when the two actions are based on the same delict
or wrong committed by the defendant, even if the remedies
be different. You cannot change the remedy in order to escape
from the principle of res judicata.
Sometimes, it is one of the hardest – same cause of action –
because sometimes there are 2 causes of action which are
interrelated, even between the same parties. Now, if there are
2 interrelated causes of action, there is no res adjudicata.
Interrelated only, because the law says similar causes of
action. That is hard to determine.
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Tests to Determine Whether or Not the Causes of Action are “It is worth stating here that the controversy in the instant
the Same case is not just an ordinary suit between parties over a trivial
1. Same evidence test matter but a litigation initiated by the natural mother over the
a. Res adjudicata can not be applied even though in welfare and custody of her child, in which the State has a
the 2 cases there is identity of parties, subject paramount interest.” This is not a simple collection case.
matter, and relief prayed for, the evidence adduced “The fundamental policy of the State as embodied in the
to sustain the cause of action in the first case is not Constitution in promoting and protecting the welfare of
sufficient to sustain the second case. So, the children shall not be disregarded by the courts by mere
evidence was sufficient to prove the first case while technicality in resolving disputes which involve the family and
the same evidence is not sufficient to prove the the youth.”
second case. Therefore, it must be a different cause
of action for how come the same evidence will not So there is a collision here between the family view found in
suffice anymore. So, it must be a different one. the Constitution and the technical principle of res adjudicata.
2. Inconsistency test If we sustain the principle of res adjudicata then the mother
a. One test of the identity of cause of action is whether can no longer recover her child. But if we disregard res
or not he judgment sought in the subsequent case judicata, the mother will be given a chance to get back her
will be inconsistent with the prior judgment. child, which is higher in value than res judicata.
Meaning, you are asking for a decision which is in
conflict with the original decision. This principle was actually repeated in the case of Salud v CA
where it was held that “There should not be a mechanical and
Suppose there is inconsistency, is this a sign of res uncaring reliance on res judicata where more important
judicata or no res judicata? societal values deserve protection. The doctrine of res
Well, I think if there is an inconsistency, that is a sign of res adjudicata is a rule of justice which cannot be rigidly applied
adjudicata because you are trying to change what has already when it results to injustice.”
been rendered. To my mind, that is how it should be
interpreted because if the judgment I am seeking is Distinguish Bar by a former judgment and
inconsistent with what has been decided, then I think that is conclusiveness of judgment
violating the rule of res adjudicata – I am re-opening The following are the distinctions:
something which was already decided.
Bar by a former Conclusiveness of
3. And the test in the case of Guevarra v Benito judgment judgment
a. The causes of action can not be the same if the Effect Constitutes an The first
cause of action in one case only arose after the absolute bar to all judgment is
judgment in the other. The principle of res judicata matters directly conclusive only
extends only to the facts and conditions as they adjudged as well on matters
existed at the time the judgment was rendered. as matters that actually litgated
might have been and adjudged in
Those are the important principles to remember. adjudged the first action
under paragraph
Rare Instances Where SC Refuses to Allow Res Judicata ©
despite its existence Requisites There must be Even if there is
Another point, res adjudicata is a rule of law, rule of identity of identity of parties
convenience, of practicality and when the evidence are parties, subject or subject matter,
present, the courts shall not allow second litigation. We know matter, and it is not necessary
that but I have to admit that there are some rare cases where cause of action that there is
despite the elements of res adjudicata, the courts refused to identity of causes
allow it. of action

This is what we call EQUITY CASES. But this is very rare. When
there is a higher principle to be observed rather than the rule
of res adjudicata – there are higher values of society which
would be subverted if we will stick to res adjudicata. A good
example is the case of Suarez v CA.
In this case, the Court held that “The principle of res judicata
should be disregarded if its application would involve the
sacrifice of justice to technicality.” In other words, this is what
we call EQUITY.
The application of the res adjudicata should be taken on a
case to case basis; you cannot say you apply res adjudicata
through and through. It must be taken under the particular
facts obtained. Meaning, there are certain facts in that case
which will warrant a deviation from the usual rule, to do
“otherwise would amount to denial of justice and/or bar to a
vindication of a legitimate grievance.”
Example of Bar by Former Judgment: Compulsory
counterclaim. I filed a case against you for recovery of land.
Meron ka pa lang claim sa akin for reimbursement for
necessary expenses. It must be set-up in the main action
otherwise it is barred forever. But you did not set it up and
then afterwards, you file a case against me for reimbursement
for necessary expenses, I will move to dismiss. Your claim is
already barred because you should have raised it as a
compulsory counterclaim in the first action. The barring of the
counterclaim is considered as the application of res adjudicata
by applying the concept of bar by a former judgment.
Example of Conclusiveness of Judgment: The debtor borrows
from the creditor P3 million payable in 3 installments without
any acceleration clause. When the first installment fell due the
creditor sue the debtor and the debtor raised the defense of
forgery, “That the promissory note is forged and as an
alternative defense assuming that the promissory note is
valid, the first installment was already extinguished by

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Civpro | Premid Notes
payment.” After trial, the court decided against the defendant.
Tapos na. Now, the second installment fell due. It is another
cause of action. Now, here comes the plaintiff filing the case
to collect the second installment.
Can the debtor raise again, in the second case, the
defense of forgery of the promissory note?
No, we have already decided that the promissory note was
genuine and that there was no forgery. This is the same
promissory note that we are talking about. So in other words,
the issue of forgery is already adjudged in the first case and
therefore res judicata in the second installment.
Can the debtor raise the defense of payment, that the
second installment is already paid or is it also barred?
Yes, because in the first case, what was resolved was whether
the first installment is paid. The judgment is already
conclusive on matters directly adjudged but not to matters
which have not been adjudged. The issue on whether the
second or third installment have already been paid was never
adjudged in the first case. That is the application. Take note
that there is no identity of cause of action.
Note: Res adjudicata is only applicable between adverse
parties in the former suit and not between parties. Co-parties
for the judgment therein ordinarily settle claims as to their
relative rights and liabilities as co-plaintiffs or co-defendants
per se.
Is the finding of no ER-EE relationship in the first case
res judicata to the second case for illegal termination?
YES. “The issue of employer-employee relationship is crucial
in the determination of the rights of the parties in both cases.
Res adjudicata applies even when the cause of action is not
similar under the concept of conclusiveness of judgment. The
ruling in the first case that there is no Employer-Employee
relationship between the parties is conclusive in subsequent
cases although the cause of action is not the same.”
“If were we to ignore the principle of res judicata, an absurd
situation would arise where the same administrative agency
would have diametrically opposed conclusions based on
apparently similar circumstances.” This is what will happen -
for the second case, there is ER-EE relationship. It is the same
agency which said there is none in the first case.
Other principles in law which may be confused with res
judicata:
1. Law of the case
2. Stare decisis
What about the law of the case?
LAW OF THE CASE means that legal conclusions announced
on a first appeal, whether on the general law of the law as
applied to the concrete facts, not only prescribe the duty and
limit the power of the trial court to strict obedience and
conformity thereto, but they become and remain the law of
the case in all after steps, whether in the lower court or in the
appellate court on a subsequent appeal.
Example: There is a case between us and then an issue is
raised before the CA and there is a ruling, right or wrong. That
ruling will subsequently bind the parties in the same litigation.
Once the case comes back, the future now of the case will be
governed by that ruling. Right or wrong, that principle will now
be the controlling principle affecting the parties. The principle
will continue until the case is terminated.
Bayocboc notes as amended by KGM
Can a case be re-opened if the law of the case has been
changed?
NO, because when the case was decided, it was the governing
law at the time, even if it turns out to be wrong.
“Under the law of the case concept, whatever is once
irrevocably established as the controlling legal principle or
decision continues to be the law of the case between the same
parties in the same case, whether correct or not, so long as
the facts on which such decision was predicated continue to
be the facts of the case before the court. Such stability and
conclusiveness given to final judgments of courts of
competent jurisdiction are said to be grounded on reasons of
public policy, judicial orderliness and economy as well as
protection of the time and interests of the litigants.”
What do you mean by stare decisis?
Stare Decisis means that the decision of a court should stand
as precedents for future guidance
Distinguish res judicata and stare decisis.
Res judicata operates between two actions involving the same
parties and the same cause(of action); while STARE DECISIS
refers to cases with different parties.
STARE DECISIS refers only to decisions of the SC (decisions
of the CA are not a basis of stare decisis); while the doctrine
of RES ADJUDICATA refers to all courts: SC, CA, RTC and
MTC.
Distinguish Law of the Case and Stare Decisis
LAW OF THE CASE refers only to one case which may or may
not be invoked in subsequent cases, while STARE DECISIS
may refer to various cases which are usually invoked in
subsequent cases.
Other principles to remember under res judicata
➢ The doctrine of res judicata by conclusiveness of
judgment postulates that when a right or fact has been
judicially tried and determined by a court of competent
jurisdiction, or when an opportunity for such trial has
been given, the judgment of the court, as long as it
remains unreversed, should be conclusive upon the
parties and those in privity with them
➢ A compromise agreement has the effect and authority of
res judicata between the parties, and is immediately final
and executory, unless rescinded upon grounds that vitiate
consent. Once stamped with judicial imprimatur, it is
more than a mere contract between the parties. Any
effort to annul the judgment based on compromise on
the ground of extrinsic fraud must proceed in accordance
with Rule 4 7 of the Rules of Court
Section 48. Effect of foreign judgments or final orders.
– The effect of a judgment or final order of a tribunal of a
foreign country, having jurisdiction to render the judgment or
final order is as follows:
(a) In case of a judgment or final order upon a specific thing,
the judgment or final order is conclusive upon the title to the
thing; and
(b) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as
between the parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction,
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want of notice to the party, collusion, fraud, or clear mistake in Philippine jurisprudence and international law that a foreign
of law or fact. judgment may be barred from recognition if it runs counter to
public policy
Note: Sec. 48 is actually a law on conflict of laws - effect of
foreign judgment. If a judgment is rendered in U.S. and is In an action for enforcement of foreign judgment, the Court
being invoked in the Philippines, should we honor it? Yes. So, has limited review over the decision rendered by the foreign
is it conclusive? Yes. The law says, in case of judgment upon
tribunal. The Philippine courts cannot pass upon the merits of
a specific thing, the judgment or final order is conclusive
the case pursuant to the incorporation clause of the
effectively.
Constitution, unless there is proof of want of jurisdiction, want
Problem: Mortverine and Mistiqla were both in the U.S. and of notice to the party, collusion, fraud, or clear mistake of law
they quarreled about the ownership of a ring. They went to or fact
an American court. After trial, the court ruled that Mortverine
is the legitimate owner of the ring. The judgment became Under Rule 39, Section 48, a foreign judgment or order
final. Subsequently both of them came to the Philippines and against a person is merely presumptive evidence of a right as
Mistiqla filed a case against Mortverine to recover the same between the parties. It may be repelled, among others, by
ring. Sabi ni Mortverine, “Res adjudicata na ito eh, tapos na want of jurisdiction of the issuing authority or by want of
yan. Here is the decision in America. Therefore it is settled.” notice to the party against whom it is enforced. The party
attacking a foreign judgment has the burden of overcoming
Is A correct?
the presumption of its validity.
YES. Under paragraph [a]. In case of a foreign judgment upon
a SPECIFIC THING, the judgment is conclusive upon the
parties. Hindi puwedeng buksan. That’s already litigated Bar: What are the rules on the recognition and
abroad, merong nang decision. We will respect it. enforcement of foreign judgments in our courts?
The rules on the recognition and enforcement of foreign
Suppose the judgment is against a person. The law says it is judgments in our courts are as follows:
(a) In case of a judgment or final order upon a specific thing,
presumptive evidence of a right as between parties.
the judgment or final order is conclusive upon the title to the
thing (Sect 48[a]);
Example: A and B were both Americans. They were married
(b) In case of a judgment or final order against a person, the
in the U.S. and obtained a divorce in the states. They came to
judgment or final order is presumptive evidence of a right as
the Philippines. The issue is whether the marriage was validly
between the parties and their successors in interest by a
terminated. According to one party, “Yes, meron man tayong
subsequent title (Section 48[b]).
divorce ba.” Is the decree of divorce abroad involving this
American couple allowed in the Philippines considering we
In either case, the judgment or final order may be repelled by
have no divorce here? That is their law. It is presumptive
evidence of a want of jurisdiction, want of notice to the party,
evidence of a right of the parties.
collusion, or fraud, or clear mistake of law or fact.
Example: H and W are Philippine citizens. They went abroad
and somehow able to get a divorce in an American court which Can a foreign arbitral award be enforced in the
became final. They came back here. Will the Philippine court Philippines under those rules? Explain briefly.
No. Foreign arbitral awards are not enforced like foreign court
honor the divorce? Here, the judgment may be repelled by
judgments under Rule 39 of the Rules of Court, but they can
want of jurisdiction of the American court, etc. The judgment
be enforced under Section 44. A foreign arbitral award, when
is presumed to be valid unless you can attack by showing lack
confirmed by the RTC, shall be enforced in the same manner
of jurisdiction.
as final and executory decisions of courts of the Philippines.
Said law provides that the case shall be filed with the RTC as
What is the principle in private international law? A judgment
a special proceeding, and if the 1958 New York Convention on
of divorce rendered by an American court between 2 Filipinos
the Recognition and Enforcement of Foreign Judgments is not
is null and void. Why? The American court never acquired
applicable, the court may, on grounds of comity and
jurisdiction over the status of the parties (because they are
reciprocity, recognizes a non-convention award as a
not U.S. citizens). But judgment in personam is honored here
convention award.
except when there is want of jurisdiction, want of notice to
the party, collusion, fraud, or clear mistake of law or fact.
How about a global injunction issued by a foreign
How do you enforce a foreign judgment? court to prevent dissipation of funds against a
The usual procedure, you file a case against the same defendant therein who has assets in the Philippines.
defendant here and the cause of action is enforcement of a Explain briefly.
Yes, a global injunction, also known as the Mareva Injunction,
foreign judgment. And then the Philippine court will render a
should be considered as an order of foreign court. Therefore,
judgment enforcing it and then you can execute.
the rules on recognition and enforcement of foreign
judgments under Rule 39 must apply. However, to prevent
Note:
dissipation of funds, the action to enforce must be
A foreign judgment on the mere strength of its promulgation
accompanied with an application for preliminary injunction
is not yet conclusive, as it can be annulled on the grounds of
want of jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact. It is likewise recognized

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Civpro | Premid Notes
RULE 48. PRELIMINARY CONFERENCE the 2019 Amendments, motions are no longer set for hearings
unlike before where a motion must be set for hearing, but that
Section 1. Preliminary conference. – At any time during is only true for trial courts. In the appellate court (in the CA
the pendency of a case, the court may call the parties and
their counsel to a preliminary conference:
(a) To consider the possibility of an amicable settlement,
except when the case is not allowed by law to be
compromised;
(b) To define, simplify and clarify the issues for determination;
(c) To formulate stipulations of facts and admissions of
documentary exhibits, limit the number of witnesses to be
presented in cases falling within the original jurisdiction of the
court, or those within its appellate jurisdiction where a motion
for new trial is granted on the ground of newly discovered
evidence; and
(d) To take up such other matters which may aid the court in
the prompt disposition of the case. (Rule 7, CA Internal Rules)

Section 2. Record of the conference. – The proceedings

at such conference shall be recorded and, upon the conclusion
thereof, a resolution shall be issued embodying all the actions
taken therein, the stipulations and admissions made, and the
issues defined.

Section 3. Binding effect of the results of the

conference. – Subject to such modifications which may be
made to prevent manifest injustice, the resolution in the
preceding section shall control the subsequent proceedings in
the case unless, within five (5) days from notice thereof, any
party shall satisfactorily show valid cause why the same
should not be followed.

RULE 49. ORAL ARGUMENT

Section 1. When allowed. – At its own instance or upon

motion of a party, the court may hear the parties in oral
argument on the merits of a case, or on any material incident
in connection therewith.

The oral argument shall be limited to such matters as the

court may specify in its order or resolution.

Note: Oral arguments before the CA seldom happen. But it is

allowed. A case pending in the CA can have oral argument:
1. Upon motion of a party for oral argument
2. Upon court’s own volition

Section 2. Conduct of oral argument. – Unless authorized

by the court, only one counsel may argue for a party. The
duration allowed for each party, the sequence of the
argumentation, and all other related matters shall be as
directed by the court.

Note: If the party is represented by many counsel, only one

of the counsel can orally argue the speak. That person is
called the lead counsel.

Section 3. No hearing or oral argument for motions. –

Motions shall not be set for hearing and, unless the court
otherwise directs, no hearing or oral argument shall be
allowed in support thereof. The adverse party may file
objections to the motion within five (5) days from service,
upon the expiration of which such motion shall be deemed
submitted for resolution.

Note: There is no hearing of a motion or oral argument. Under

274
Bayocboc notes as amended by KGM