CIVIL PROCEDURE

Volume I
THE BAR LECTURES SERIES

.'.WILLARD B. RJ:A;N01'
Bar Reviewer in Remedial Law, Commercial Law ::m,l Qh,ll I ,11·'
Author: Fundamentals of Civil Procedul'"'
Evidence (A Restatement for the Bai');
Civil Procedure (A Restatement for the Dm•\· ·
Evidence (The Bar Lectures Series); "
Criminal Procedure (The Bar Lectures So:d
Dean, College of Law, University of the Eaat
Former Dean & Executive Dean, College of Lr,,t ·
San Sebastian College Recoletos-Mo,nil
Member, Remedial Law and Commercial Law
U.P. Law Center
Former Profe�sorial Lecturer, Philippine· Judici
Supreme Court of the Philippines

2ci:1-9.

Bantam Edition

nb_
�REX Book Stor
Published & Distributed by

856 Nicanor Reyes, Sr. St.

Tel. Nos. 736·05-67'�-735-13-64
19TT C.M. Recto Avenue
Tel. Nos. 735-55-27 • 735-55-34
Manila, Philippines
www.rexpublishing.com.ph
,...�.,~J.ii=i.=•
. =•�=
=���.�u
 PhilippinerGopyright 2019

by

'-\_.iJ�✓�
WILLARD B. RIANO A DAUGHTER'S MESSAGE TO THE READERS

I humbly present to you my father's last and greatest wo:r

These editio!}s" ai;e very special to me(finc,e contained in thes · palJ iJ
are my father's last words and part of the legacy that he left,· -�o th
No portioh; of this book may be b�pied or world. Much of the writing was done in my home, surround d b.
. ··•; :··,

reproduced in books, pamphlets, outlines or notes,
whether printed, mimeographed, typewritten, copied
in different electronic devices or in any other form, for
�istribution or sale, without the written permission
of the author except brief passages in books, articles,
reviews, legal papers, and judicial or other official
proceedings with proper citation.
Any copy of this book without the correspond­
ing number and the signature of the author on this
page either proceeds from an illegitimate s9urce or is
• ·1
family. My father would hunker down in front of his laptOl) rw,d
write tirelessly from morning· to night, taking breaks thr u h 11
· the day to play with his grandson, Christopher, or chat with 11 • .f
· was during these times that I saw my Dad's passion for his booL
well as his deep compassion for his students. It showed in th · fl 01·
that he took to craft each sentence, each paragraph, ·and ea h 11 (
so that nothing would be lost in the translation of the law. H wo11ld,
read me excerpts and ask if, as a layman, I understood what h
trying to get across. I think that was always his measure of u · I
for his writing: if a person, like me, with no education in th· lrtw
could understand the concept he was trying to explain, th n l

in possession of one who has no authority to dispose on the right path.

of the same.
This is the common thread in the books my father author d: L
simplify law concepts in a manner that is easy to grasp. H to l th
ALL RIGHTS RESERVED
most daunting law subjects, and presented them in such a way tbnL
BY THE AUTHOR ,they became less the behemoth than they were previously thou ht.
He transferred, through the pages, his innate understandin · of
·No. -2241 ··.""''Remedial Law subjects in a way that inade it easier for hi r ad, t
to understand.
ISBN 978-621-04-0196°7 To his readers, I hope you find inspiration in these pa
persevere and be one step closer to your dreams. I hope y u find
within yourself the "homicidal instinct" to succeed, and th str lJJth
and faith to stay in your chosen path. In the words of my dad, " li v
in what you are now. Have faith in what you snaU become.
05-RL-00084-0 9 786210 401967 come true with faith."

,Niiia Riano-Lourida
Printed by Los Angeles, California

November 22, 2019

iii
 DED,,ts;ATION

"To Nina . ,: . my baby ...

and
her babies ..."

iv
 CONTENTS

·;!:Chapter I
!-<!.
�ft
Gerieral Principles
I. Remedial La:'w and the Rules of Co11:1:t

C.oncept of remedial law; sources ................................ "'""'"""

Substantive law distinguished from remedial law
_ (Bar 2006) .......... : ..................................................... , ....... ..
,,::\'Jajor aspects of remedial law .....................................,.............,
· · Scope of civil procedure in the Rules of Court ..........................
Pfospective effect of the Rules of Court (Bar 2011 ) . , ............. ..
when procedural rules do not apply to pending action.a ..........
:\,_Actions or proceedings governed by the Rules of Cou·rt..........,
Attions or proceedings not governed by the
·,
Rules of Court ....................................................................
The need to follow fundamental evidentiary rules ..................

II. Rule-Making Power of the Supre1no '-J<nn•

_ Constitutional authority to promulgate rules ..........................
).,imitations on the rule-making power of the
,.,;:'.;:_ - Supreme Court ................................................. ...... ... ........ :H
Power. to amend and suspend the rules .................................... �
Pro hac vice rule......................................................................... :r •t
The rule on liberal construction; purpose (Bar 1998) ..... ......... 'l 1'
General rule on compliance with procedural rules;
exceptions........................................................................... I�

III. Nature of the Philippine Court

Courts of law and equity; application of equity
jurisdiction ;J(
When equity does not apply I'
-- I
Judicial power Ill
Doctrine of hierarchy of courts (principle of judicial
hierarchy) (Bar 2011; 2017) 11)

vi vii
When the doctrine_ of hierarctiy'of courts may bE:l Chapter II
disregarded (Bai; 2011):..................................................... 21 Jurisdiction and Venue
Doctrine of non-interference or doctrine of judicial
stability (Bar 2011) ........................................................... 22 I. Jurisdiction
Constitutional and statutory courts......................................... . 23 Jurisdiction in General .....................................................
Civil and criminal courts ........................................................... 23 ... Jurisdiction; meaning........... ;.......................................... '.
Superior and inferior courts ...................................................... 24 ;:rurisdiction is not the power ofthe judge ........................
Courts of general and special jurisdiction ................................ 24 Jurisdiction does not refer to. the decision itself .......... , ...
Courts of_�riginal arid appellate jur,isdiction.��······················•.•· 24 Aspects of jurisdiction ................................... ;...................
Original aiid exclusive jurisdictiorif,qistinguished................
,,,.' · · · . ,.,,,
:,t
_, ,,.
26 ., . -ft\ . ' :{
ConcurI"entcJunsdict10n................... ::......................................;;;,, 26 J.urisdiction over plie Subject Matter........../::;: ................. ..
Meaning of 'court' ......................_.... :, ..�........................................:. 27 Meaning of jurism.c;:tion over the subject m1atter........ ,,.,.,
Court distinguished from a judge: .............. ,.......................... ::. 28 Duty of a court to dismiss an action for lack
of jurisdiction over the subject matter.....................
Effect of lack of jurisdiction over the subject matt 1·..... ..
IV. The Basi� Processes of Ordinary
Jurisdiction versus the exercise cif jurisdiction ............, ..
Civil Actions
Error of jurisdiction versus error of judgment
Introduction 28 (Bar 1989).................................................... :·.....,, .....
I. Complaint ........................................................................... 31 Test of jurisdiction ........................................................... ,
A. Right of action and cause of action .......................... 32 An erroneous judgment is not void.................................. ,
B. Jurisdiction ............................................................... 35 Jurisdiction and cause of action (Bar 1988).....................
C. Venue ....................... ;·................................................ . 36 How jurisdiction over the subject matter is con£ l'l' d ....
D. Parties .................................................. :...·................. 38 Consequences of the rule that jurisdiction is
E. Prescription and conditions precedent .................... 38 conferred by law ........................................................ I

F. Preparation of the complaint ................................... 40 The law applicable to the case ................................ ......... I

G. Provisional remedies ................................................ 42 How jurisdiction over the subject matter is

H. Filing of the complaint ............................................. determined (Bar 2014; 2015).....................................
43
( )
C!iption of the case is not controlling ...............................
I. Possible .scenariqs after the filing of the
I I)

complaint ..... :.................................................... 44 The defenses and the evidence do not

determine jurisdiction ............., ................................ I
. j

II. Summons ........................................................................... 47 The amount awarded does not determine

A. Motion for bill of particulars .................................... 48 jurisdiction (Bar 2015)..............................................
B. Motion to dismiss ...................................................... 49 Doctrine of pr1mary jurisdiction (primary
III. Answer ........................................................................... 51 administrative jurisdiction) ..................................... 71
A. Default....................................................................... 52 Doctrine of exhaustion of administrative
B. . Counterclaim,. cross-claim, third-party remedies.and doctrine of primary
complaint, reply and intervention ................... 53 jurisdiction ................................................................
Exceptions to the doctrine of primary jurisdiction ..........
IV. Pre-trial...................... .............................. .......................... 55 Doctrine of adherence of jurisdiction
V. Trial ··················································································· 56 (continuity of jurisdiction)�..................................... ..
VI. Judgment ........................................................................... 56 Doctrine of ancillary (incidentalffurisdiction ..................
VII. Post-judgment remedies.................................................... 57 Doctrine of judicial stability .......................................... :..
VIII. Execution and satisfaction of judgments ......................... 58 Objections to jurisdiction over the subject matter ...........

viii ix
 Effect of estoppel on objeotions t0 jurisdiction................. 82 Jurisdiction ·of the Court of Appeals................................. 106
Jurisdict,ion over th_e stibject matter a_nd the Original e;x:clu�iye jµrisdiction of the .
. omnibus motion rule...... :.......................................... 83 Court of Appeals ................................................ ...... 106
C. Jurisdiction over the Parties ............................................ 85 Original concurrent jurisdiction of the
Meaning of jurisdiction over the person; Court of Appeals ...................................................... 100
jurisdiction in personam........................................... 85 Power to try and conduct hearings like a
How jurisdiction over the persons of the trial court (Bar 2008)..... ,.......................................... 10
parties is acquired (Bar 2009)..................... .............. 86 . . Jurisdiction of the Court of Tax App�als .............. ............ 10
.-Voluntary appearance of.the defendant (Bar 2017) ........ 86
;Effect of pleading additi?nal defenses aside froni:ti, Jurisdiction �JMunicipal Trial Court�t.··························
,.,,, Explanatoryiiiote ................................ !:.:·...........................
lack of jurisdiction.1'8\rer the person of --i

the defendant; prior:rule re-examined ........ :.;......... 87 Demand not �;icceeding P300,000 or P4_Q0,000.
When jurisdiction over the person of the defendant Meaning of interest ..............................-: ,...........................
is required ................... :.................................'............ 88 Totality Rule (Bar 2014; 2015)
Necessity for ser�ce of summons .................................. :.. 90 Actic;ms involving personal property.. ,..............................
Probate proceedings
D. Jurisdiction over the Issues.............................................. 92 Granting provisional remedies
Meaning of jurisdiction over the issue ............................. 92 Delegated jurisdiction
How jurisdiction over the issue is conferred Special jurisdiction............................................................
and determined ............ :............................................ 92 Summary procedure; small claims cases
Distinction between a question of law and a (Bar 2013; 2014)........................................................ Ut
question of fact (Bar 2004) ....................................... 93 Actions for forcible entry and unlawful
When an issue arises eveh if not raised detainer (Bar 2009; 2014)......................................... U
in the pleadings........ ;................................................ 94 Actions_ involving title to, possession of or any
E. Jurisdiction over the Res ............ ..... .. ............................... 95 interest in real property; meaning........................... !1,
Meaning of jurisdiction over the res; actions Basis is assessed value (Bar 2008; 2009) ................. ........ J2.
in personam, in rem, and quasi in rem.................... 95 The need to allege the assessed value; when failur
How acquired .........·............................................................ 98 to allege assessed value is not fatal......................... Ull
Extent of relief when jurisdiction is only Allegation of assessed value is immaterial on appeal..... 18
over the res ....................... ....
· ,... .•......•. ,....................... 99 . ,+,--,,Inquiring into the primary rel,ief or ultimate
objective of the complaint......................................... 13
F. Jurisdiction of the Supreme Court (Bar 2014) ................ 100 Accion publiciana; accion reivindicatoria (Bar 2010) ..... 134
Basic principles in relation to the jurisdiction Real a�tions (actions involving title to, possession of,
of the Supreme Court ....... ........................................ 100 or any interest in real property) are also
Original exclusive jurisdiction of the Supreme Court .... 102 incapable of pecuniary e.stimation ..................... . .. . . 18 .
Original concurrent jurisdiction of the
Jurisdiction over appeals from judgments
Supreme Court ......................................................... 103 of the MTC ................................................ :............... 10
Appellate jurisdiction........................................................ 104
Original cases cognizable by the Supreme J. Jurisdiction of the Regional Trial Courts (Bar 2016)...... 1
Court.......................................................................... 104 Exclusive original jurisdiction of the RTC ...................... . 1:'l
Appeal to the Supreme Court ........................................... 105 Concurrent original jurisdictiori',of
,__ the
Cases which must be heard En Banc............................... 105 Regional Trial Court............. :.................................. .
Procedure when the opinion Supreme Court En Banc Appellate jurisdiction
is equally divided (Bar 2012) ................................... 106 Special jurisdiction to try special cases............................

X xi
 · :· yVhen court may make a motu proprio
Jurisdiction over intra-qoiporate controversies.............. 141 dismissal based on improper venue il\11
Effect on jurisdiction when an.intra-corporate case is Denial of a·motion to dismiss based on
erroneously assigned by raffle to a regular improper venue; no appeal um
branch of the Regional Trial Court .......................... 146 Improper venue is not jurisdictional;
RTC is a court of general jurisdiction .............................. 147 waiver of improper venue ......................................... l1
Actions incapable of pecuniary estimation Authority of the Supreme Court in relation
(Bar 1997; 2003; 2009) ........................ : ..................... 148
to venue of cases l 1J1l
Action for partition of real property 156
Action for foreclosure of real estate mortgag� 156
1 Chapter Ill
Action to enforce thef41ayment of
damages undetii penal clause ..............
c!c
i: ............. .. 157
���-
· Causes
'
/fi
of Action, Acticiris,
'
and Parties
Extent of trial court'sjurisdiction when
I. Cause of Action.,:(Rule 2)
acting as a probite com::t (Bar 2011) 157
Ill),
K. Jurisdiction of the Family Courts......................... L ...... ,. 157
. J:rµportance of a cause of action ..................................... ,,.,..,,.,..
11\1
"· ·M,eaning and elements of a cause of action .....................,.,...,..
L. Jurisdiction of Shari'a Courts ........................................... 159 .'llhe need to state the cause of action ...............................,....,.. I 1111
Shari'a courts; types 159 'l'ne test on whether or not the complaint states
Original jurisdiction of Shari'a District Courts 159 . a cause of action................................................... ::............ !'1111
Concurrent jurisdiction of Shari'a District Courts ......... ,160 ·Failure to state a cause of action and lack of a caus
Appellate jurisdiction of Shari'a District Courts 161 of action..................................................................... ,.,,.,,,, I Iii
Finality of decisions........................................................... 161 ln1portance of the allegations in the complaint......... , .............. I
Original jurisdiction of Sh.ari'a Circuit Courts 161 tffect of a finding that the complaint 'states a
Rules applicable............... :............................., ................... . 162 cause of action...................................................................,
. Cause of action as applied to administrative cases.............'.....
II. Venue (Rule 4) Cause of action arising from law ...............................................
Meaning of venue 162 ·c:ause of action based on contracts ...........................................
Venue in civil cases; venue in criminal cases 162 · Cause of action based on the vicarious liability
Some specific distinctions between jurisdiction ., of an employer .., ................................................................ lliir
(over the subject"matter) and venue (Bar 2006) ..... 163 -;Ca;pse of action in environmental cases.................................... 11)1
Basic venue analysis ... : 165 r,....,;@a'use of action for partition raising issue
Venue in personal actiqns (Bar 2011; 2017) 165 of ownership ....................................................................... ill!
Venue in real actions (Bar 2009; 20t8) 167 )\ctipn distinguished from cause of action (Bar 1999) ............. 1 l)t
Venue of actions against non-residents affecting the $plitting a single cause of action (Bar 1996; 1999;
personal status of the plaintiff; actions 2005; 2017); reason for prohibition................................... I l)f
affecting property of the non-resident in Anticipatory breach 1()1
the Philippines 170 '" ".J\fff(;lct of splitting a single cause of action
When the rules oii. venue do not ·apply 172 · · (Bar 1998; 1-999) ................ :............................................... 1()

Stipulations on venue (Bar 1997; 2001; 2012) 173 Joinder of causes of action (Bar 1996; 1999; 2000;
A restrictive stipulation on venue is not binding 2005; 2011; 2012; 2015) .....................................................
when the validity of the contract is assailed ........... 177 Joinder when there are multiple parties .................................
Venue in a contract of adhesion........................................ 178 Joinder of claims in small claims casE!s ....................................
Complementary-contracts-construed-together rule ........ 179 Remedy in case of misjoinder of causes of action ............, ...,..,.
Adopted illustrations......................................................... 181
Dismissal based on improper venue ................................. 182
xiii
xii
 I;t-�ctions pqlsory joinder ofindispensable patties ;...... ,.................. . .::Jlj;J
fot of non-joinder of indispensable ·parties
l)J

Definition .............................. : ............... :.................................... 212.

'.Jfi!l
Civil actions and criminal actions............................................. 212
ure to implead an indispensable party;
Actions distinguished from special proceedings ··. not a groundfor dismissal(Bar 2010) ..............................
(Bar 1996; 1998) ................................................................ ' :joinder and non-joinder of parties (Bar 2009; 2010) ..........
213
.essary parties............................,................................... ,,,,,.. ,
The special proceedings under the Rules ofCourt;
tinction between· an indispensable and a
applicability ofrules in ordinary civil actions ................. 213
necessary party........................................ ,.: ....................... /,I
Special civil actions in the Rules . ofCourt ................................ 215
'uty of'pleader ifa necessary party is not joined;
Real and personal actions (Bar 2004; 2006) .../................. :........ 216
effeqt (Bar 1998) ................ '.\:1/•·············.........................\''" Jni
Significance ofthe di$linction between a persg}1al . en coµrt may order joinder ofijnecessary
action and a re�taction (Bar 2016) ....... �t':'....................... 219 ':.''
. party (Bar 1998) ................ :.,. .;:............... :..................... 1,....
In personam and in r�m and quasi in rem acti9ns
qlH
:ffect
·· offailure to comply with the order ofthe
(Bar 1994; 2009;'2014) .............................. :..... 222 cou;t (Bar 1998; 2011) ......... .'........................................... .. !l/i.l
Significance ofdistinction between actions in rem, feet ofa justified non-inclusion ofa necessary
in personam and quasi in rem 227 party (Bar 1998) ....................................................... ,..,.... ,
Requirement ofnotice or summons...................... :.................... 230 . willing co-plaintiff................................................ ,, .... ,..,..,,..,
Example ofwhen an action in rem or quasi in rem is ;tfernative defendants (Bar 2011)........................... ,. '"'""""'"
be treated as in personam..................................... ,........... 231 . Jri.known identity or name ofthe defendant ................. ,...,,.,.,
,d
When summons by publication ma:)' be made in an 'E· ffect ofdeath ofa party on the attorney-client
action in personam 232 relationship; duty ofcounsel (Bar 2016) ......................... m1_1
·• 'Action ofcourt upon notice ofdeath; effect ofdea:tl
III. Parties (Rule 3) >;"i on the case (Bar 2009) ...................................................,.., •1111
Parties to a civil action 232 i{Tiriportance of substitution ofthe deceased ......... . ................. tl!J
Who may be parties 233 ),Nb requirement for amendment ofcomplaint
Juridical persons as parties....................................................... . or service ofsummons ................................................. ,...., Ill l
233
Entities authorized by law to be parties................................... ·,:pµrpose and importance ofsubstitution of the d
235
tl I
Entity without a juridical personality as a defendant............. ;/'Examples of actions which survive the death of a
236
··; party (Bar 2011) ................................................................
Effect when a party impleade!1 is not authorized
lj

ions for the recovery ofmoney arising from

to be a party................................... ..................................... . 237 ''"cpritractual obligations.:............... ,..·.............. : .... ,, ...... ,....,,
Averment ofcapacity to sue or be sued 238
'i

,;ic}ion for recover� ofrr_ioney arising from contract,

Minor or incompetent as a party............................................... 238 �,;;�11;1 expressed or 1mphed..................................................... ,...,
Real party in interest (Bar 1988; 1989; 2015) 238
l.f

cfhcompetency or incapacity ofa party during th

Determining the real party in interest 239 >li:· pendency ofthe action.......................................................
Doctrine oflocus standi 242 ct�t�nsfer of interest ..................................................... ,,............ ,
Plaintiff in environmental cases 245 J;,J,fu!j��nt parties (Bar 2016) ................................................. ,.... ,
Ground for dismissal when a party is not the real · ·F,iole ofthe 'Solicitor General' ....................................................
party in interest................................................................. 245 'Shit by or against spouses .........................................................
Representative parties............................................................... 246 Class su1·t·, requ1s1tes· ·
.................................................................,
Citizen suit under the Rules ofProcedure for Qommonality ofinterest in the subject matter ....................,..
Environmental Cases 247 NP class suit when interests are conflicting .............................
Standing ofmarine mammals 248 °WP class suit by a corporation to recover property
Indispensable parties (Bar 1996; 2015; 2017) 250 ofits members II

XlV xv
No class suit to recover realp>:,pperty Verificatio:11.in a plead , iHg (�ar 20J8 , ),., .............................
individually held......... :!..................................................... 270 How a pleading is verified......................, ............: .............
No class suit to recover damages for personal Significance of a·v.erifi�tion .........., .....:..; .........................
reputation .................................................•........ ,............... 271 Effect of laclc of a verification or of a defective
Common or general interest in the environment verification (Bar �OH) !Mll,
and natural resources ....................................................... 271 Other requirements ........................................................... �Llll
Dismissal or compromise of a class suit .., ......... ,...................... 272 Certification against forum shopping
qiass suit distinguished from representative suit ................... 272 (Bar 2000; 2009; 2010; 2014) ................................... , w,1
Purpose .of the certification .............................................. , . !\I\)\
Chapter IV1 ? . Meaning of forum shopping �llll l
�.% Y� The certification. is n<;>t/i!,jurisdictional requireµien't....... '.\tlfl
,, :/' Three ways of committing forum shopping ........':........, ....
.· );�· • t..:;•✓�• -'
Pleadings and M;btions / f
1.11111

I. Ple�ding� ',;.Determination
., of the existence
· · of forum
shopping
A. General Principles on Pleadings..........................;............ 274
!.ll!II
There is no forum shopping in simultaneously
Nature of pleadings ........................................................... 274 filing a quo warranto petiti9.:n. and a
Necessity and purpose of pleadings.................................. 274 complaintfor impeachment
Construction of pleadings ................,.,............................... 275
"·'I, I
Who execute.�the certification against forum
Construction of ambiguous allegatJ.o:ns in pleadings....... 275 shopping (Bar 2000); exception ..................':, .... , ....... "i 1
Pleadings allowed by the Rules of Court (Bar 1996) ....... 276 Signing the certification when the plaintiff is
Pleadings allowed under the Rules on
Summary Procedure ................................................. 276
juridical entity
Rule if there are several plaintiffs or
.................. ,,,j

Pleadings in the Rule of :Procedure for Small petitioners; exception (Bar 2016) ............................. • '11(
Claims Cases ....................................... :.. :.................. 276 Pleadings requiring a certification arainst
Pleadings not allowed in a petition for a forum shopping ......................................................... tt1
Writ of Amparo ot Habeas Data .............................. 277 Applicability to special civil actions ................................. '1111
Pleadings in the Rules of Procedure for Effects of non-compliance with the rule on
Environmental Cases . ......................................... ..... 278 certification against forum shoppin
Nature of a pleading; how determined............................. 278 (Bar 1996) ................................................................., fll 1
B. Parts of a Pleading ......:..................................................... 279 Effect of willful and deliberate forum
Caption of the pleading ....................'................................. 279 shopping; dismissal of all pending claims ...............
Title of the action............................................................... 279 Effect of submission of a false certification .....................,
Effect of non-<;:ompliance with the undertak.inao ........... ..
Body of the pleading ....... : ........................................ ;......... 279
Summary of guidelines respecting non-
Headings; designation of causes of actions
compliance with the requirements of or
joined in one complaint............................................. 280
submission of defective, verification and
Allegations of ultimate facts............................................. 280
certification against. forum shopping .......................
Relief .......................................: ........................:................. 281
tQ

Signature and address ...................................................... 282 Allegations in Pleadings ....................................... , ........... tQ11
Effect of an unsigned pleading ......................................... 283 Allegations of conditions precedent .............................. , .. , 1,~1 i
Significance of the signature of counsel Effect of failure to comply with a condition prnood1111/,... , (IIJ'
(Bar 1996; 2013)........................................................ 283 Pleading a judgment ...............:...,.,............................... , .., .. \I If,
When counsel is subject to disciplinary Pleading an official document or act ....................... , ......., 1111,
action in connection with pleadings......................... 284 Pleading capacity to sue or be sued ...............................'.. , 11111

XVI xvii
 Pleading fraud, mista:ke,j-pr... condition of the mind........... 306 Kinds of defense·s in the answer ......... ,...•... ,.:... :...... 323
Pleading alternative caU:ses of actions or defenses.......... 307 Effect of absence ofa spedfic deniaL.:............ ,........ 324
Pleading actionable documents (Bar 1991; Purpose of a specific deniaT.... :..... ::.:.................:...... 325
2004; 2005 ; 2017) ................. :.................................... 309 Kinds of specific denials (Bar 2011; 2015)............... 325
How to contest an actionable document; Negative pregnant ......... :.......................................... 328
oath required (Bar 2010 ; 2017) .................. ,............. 310 When a specific denial must be coupled
When an oath is not required (Bar 1987; 2017)............... 311 with ari oath (Bar 2010) ............. :....................• ' 329
Meaning of admission .... .................................... ............... 312 Matters not deemed admitted'by the
Defenses cut off by the admission of failure to make a specific denial...... :............... 331
g�µuineness and due execqtion .............................. :\ 312 Affirmative <f�fenses ........................ ;.. iy••················· 332
DefenJ�:s not cut off by the adnU'.ssion of lt;' Periods to fil��a n answer to a complaitit ...... ........... 38
gepuineness and due execution (Bar 2017) .............' 312 2(a). Default:''..................................... :L:.................. 383
Nature of Defimlt (Bar 2013; 2014; 201,5; 2017) ..... · 331.:l
D. Filing l'ind Service of Pleadings/Judgments Requisites before a defending party m�y be
and Other Papers in Civil Cases................... J.......... 313
declared in default (Bar t999 ;
Meaning of 'filing'.............................................................. 313 2013 ; 2015) ........................... :........................... 88
Meaning of 'service'....................... ;................................... 313 No motu propri6 declaration of default ................... 3a
Upon whom service shall be made ................................... 313 Failure to serve the answer to the
Service upon counsel representing several parties ......... 314 adverse party...................................... :�............ u::lO
Manner of filing.................................................................. 314 Effect of a declaration/order of default
How to prove filing ............................................................ 315 (Bar 2012) ......................................................... D�J7
Papers required to be filed and served............................. 315 Effect of partial default (Bar 2011).................. :....... 5J8
Modes of service................ ,................................................. 316 Action of the court after the declaration/
Service of judgments, final orders or resolutions ............ 316 order of default............ ·······;····························· :nm
Personal service; priority in modes of service Court not required to receive evidence
and filing .................. ...... ................. .......................... 316 personally
When personal service is deemed complete..................... 316 Admission of answer filed out of time......................
Service by mail .................................................................. 317 Extension of the time to answer
When service by mail is deemed complete....................... 317 Remedies of a defending party d�clared
Substituted service............................................................ 318 in default (Bar 1998 ; 2012 ; 2013)
When substituted service is complete.............................. 318 Current judicial trend On defaults
How to prove service (Bar 2011; 2012)............................. 318 Implied lifting of the order of default
E. Kinds of Plead1ngs..... :....................................... "·············· 319 Extent of relief in a judgment by default
1. Complaint.................................................................. 319 Cases where a declaration/order of default
Meaning of complaint............................................... 319 cannot be made................................................. 3�1,tl
Filing of the complaint; significance........................ 319 Judgment by default for refusal to comply
Payment of docket fees and acquisition of with the modes of discovery............................. 3,1,1,
jurisdiction........................................................ 319 Failure to file response under the Rules
Effect of failure to pay docket fee on of Procedure for Small Claims Case
supplemental complaint .................................. 322 (Bar 2012) ..................................................... .... 811
Payment of docket fees for cases on appeal............. 322 Failure to file a return under the Rules
on the Writ of Amparb'.. ,.................................. Btl,n
2. Answer....................................................................... 323 Failure to file a return under the rules
Nature of an answer................................................. 323 on the Writ of Habeas Data............................. 8ti f

xviii xix
 Failure to file an a_ps.y,rer under the 19. 91 Time for intervention.. ;•............................ ,,,,....,........
Revised RuleS: on Summary Procedure 7. Reply........................................................... ;., ........ , .. ,.,
. (Bar 2012; 2017) ... :..................... :..................... 345 Nature of a reply ...•....................:....................... :......
3. Counterclaim............................................................. 346 Filing of reply, not- mandatory ..................... , ....... ""
Nature of a counterclaim (Bar 1999; 2007; 2010); When filing of reply is advisable .............................,
kinds .............. ,.................................................. 346 Period to file a reply................................................. ,
Compulsory and permissive counterclaims............. 347 F. Amendment of Pleadings.(Rule 10) .................................,
Compulsory counterclaim; tests............................... 347 How pleadings are amended;
The need to set up a compulsory reason for allowing amendment.....................,.........
counterclaim in.the same action ............ :.:······ 350 Amendment �,s a matter of right (Bav�000; 201.::l) .........
Incompatibility betw��n a compulsory ct�� Applicability;:qf ma�damµs ..•............. ,[Ji/,...........................
counterclaim artcl. a motion to dismiss . ...\........ 351 Amendment inade during the pendency of
, Permissive countercl�im (Bar 2011)................'.;...... 352 motion tp dismiss (Bar 1979; 200!5; 2011t) .............., l'!I_I
Distinctions between.a compulsory and a Amendment by leave of court (Bar 1986; 1004: �01,1),.., in•�
permissive counterclaim ....................... '........... 353 Amendment to cure a failure to state a ca.us
How to set up an omitted counterclaim................... 356 of action (Bar 2004; 2013)....................... ,................. !'Ill
How to set up a counterclaim arising Amendment to conform to the evidence
after the answer ............................................... 356 (Bar 2004; 2013) .........................................,.....,,....... .
Period to answer a counterclaim.................. '............ 356 No amendment where no cause of action
Effect of the dismissal of a complaint exists ......................................................................... ,,
on the counterclaim already Amendment to correct a jurisdictional defect
set up (Bar 2010) .............................................. 356 before a responsive pleading is served
Options of the defendant who has (Bar 2005)..................................................................
pleaded a counterclaim.................................... 358 Amendment to correct a jurisdictional defect
4. Cross-Claim............................................................... 359 after a responsive pleading is served ...................,.., I
Nature of a cross-claim............................................. 359 Effect of the amendment on the original plendin1r ,......... !J{II
No cross-claim for the first time Effect of the amendment on admissions mad
on appeal.. .......................................................... 360 in the original pleading .......................................... " fl

Distinctions between a counterclaim Summons after complaint is amended; when

and a cros.s-claim �ar 1��9) ., ................,........ 360 required and when not required ..........................,...
How to set up a cross-claim arising Supplemental pleadings........:....... '.................'...................
after the answer ............................................... 360 Cause of action in supplemental pleadings......................
How to set tip an omitted cross-claim...................... 361 Answer to a supplemental pleading;
Period to answer a cross-claim................................. 361 not mandatory.......................................................,,,, 11111

5. Third (Fourth, Etc.)-Party Complaint ..................... 361

Nature of a third-party complaint ........................... 361 II. Motions in Civil Case
Leave of court......................................... :.................. 362 Definition of a motion ................................... : ............................
Answer to a third-party complaint .......................... 362 Form of motions ........................................................................ .
6. Intervention .............................. ................................ 363 Contents of a motion ..................................................................
Nature of intervention (Bar 2011) ........................... 363 Hearing of motion; litigated and ex parte motions ..................
Requisites for intervention (Bar 2000) .................... 364 Notice of hearing .............................. ;,,·......................................
, .
Meaning of legal interest.......................................... 365 .Proof of service ........................................................................ t"
Procedure for intervention ....................................... 367 Motion day ..................................................................................

xx XXI
Effect of failure to set the motipn for hearing, A. Service in person on defendant
include a notice of hear?lg �nd serve (formerly personal service of summons) ....•............ 409
the motion (Secs. 4, 5, 6 of Rule 15)........, ......................... 386 Substituted service of suminoris
Summary of the requirements in filing a motion ................... . 386 (Bar 2004; 2006; 2013i 2016; 2017; 2018) .... : .......... , •U
Motion for leave to file a motion ................................................ 387 How substituted service is made ..............:........·............... 41
The Omnibus motion rule (Bar 2010; 2011) ............................. 387 Effect if defendant does not actually receive
Prohibited motions under the 1991 Revised Rules the summons-...............•.........
· : ....... ·...........; ................
on Summary Procedure ..................................................... 388 When defendant prevents service of summons................
Prohibited motions in the Rules on the Writs of Summons by ptiblication ........... ,., ........; .......,· ...-.............. ,..
:.,,. Amparo and Habeas Qata.............................:....! .............. 388 Service �pon a defendant whoseJp-entity or
·
Pi:�p.ibited motions under t,�e Rules of Procedure :if}: wh;¢,r· eabouts are unknown.\i'f1 ...... .................... , ...... ' !.:
1 • for Small Claims Case�, as amended .............. L: ............ . Service upon a resident temporarily out
389
Pr9liibited motions under t:l,1.e Rules of Procedure of t�e Philippines ................,_:,·································--· . ' 4213
,
for Environmental Cases ..... :................................., .......... 389 Extraterritorial service of summons ................ ,............... 4'
Actions involved in extraterritorial service
ChapterV of summons
Modes of extraterritorial service (Bar 2008; 2013) ..... ,... ,
Summons Application of principles····································,:········••··"
Purpose and importance of summons ...........................: ........... 391 Suits against non-resident defendants who hav, .
Service of summons applies to any•actions .............................. 392 properties in the Philippines but are outsid
Summons in actions in personam (Bar 2016) .......................... 392 of the country .................................................... , ....... (Lt);'
Effect of knowledge of the filing of the action........................... 393
Purpose of summons in actions "in rem and quasi il). rem ........ 394 ChapterVI
Voluntary appearance by the defendant (Bar 20i'7) ................ 395 Proceedings After Service of Summons
Who issues the summons........................................................... 400 and Dismissal of Actions
When summons is issued........................................................... 400
To whom summons is directed Preliminary statements .................................................... ,ti}
400
Who serves summons (Bar 2012) 400 Motion for Bill of Particulars
Contents of the summons .......................................................... 400 When to file the motion ..................................................... 48
Return and proor"of service (Bar 2012) ..................................... 401 Purpose o( the motion···········:···········•·•·,··························· 136
Unifor�ity of the rules �n summons ........................................ 401 Purpose of a motion for bill of particulars in a
Service upon an entity without a juridical personality ........... 401 criminal case (Bar 2018) ........................................... 4;:
Service upon a prisoner 402 Requirements for the motion ............................................ 43
Service upon a minor and an incompetent 402 Action.of the court (Bar 2008; 2010; 2012) ....................... 438
Service upon a domestic private juridical entity ...................... 402 Compliance with the order.............. , ................................. 438
Old rule on service upon a domestic Bill of particulars as part of the pleading ........................ 439
private juridical entity 403 Effeot of non-compliance or insufficient compliance
Service upon a foreign private juridical entity ......................... 406 with the order of the court ....................................... 439
Foreign private juridical entities not registered in the Stay of period to file responsive pleading......................... 439
Philippines or have no resident agents 408 R Motion to Dismiss
Service upon the Republic of the Philippines 409 A motion to dismiss is not a ple'ading .............................. 440
Service upon public corporations 409 Hypothetical admissions of a motion to dismiss
Service upon an unincorporated government agency 409 (Bar 1989) .................................................................. 440
xxii XXlll
 Omnibus motion (Bar 29;,l{l)....................................:·········· 441 Chapter VII
Contents and form of the motion to dismiss .................... 443
Time to file the motion ...............................:...................... · 443 · Pre-Trial and M�des of Discovery
When a motion to dismiss may be filed even after Pre-Trial
the answer has been served and filed...................... 444 Concept, nature, and purpose of a pre-trial
Grounds for motion to dismiss .......................................... 445 (Bar 2009) .................................................................. 46
Laches as a ground for a motion to dismiss Preliminary conference .......................................... ; .......... 465
under Rule 16 ............................................................ 446 Effect of failure to conduct a pre-trial .. ........................... . 46
Res judicata as a.ground for a rriotion to.dismiss; Referral to the Philippine Mediation Center ............•...... · 466
aspects of r�judicata (Bar 2011) ·····+'�···················· 446 How pre-trial is called; filing of motion by ,,
Elements of res j:iillicata (in relation to th�'concept ?;? plaintiff (Bar 1999) .;l!:i.................................... J;; · ,· ... '. 466
of "bar by a p;ior judgment") (Bar 2Q°il) ................. 448 When motion is to be filed by plaintiff;
Elements of res judicata (in relation to ,,' role of the branch clerkofcourt ....................... :.': .... 46G
.
"cone1us1veness .
o.f JUdgmen ' t") ······················:·········· 448 The meaning of 'last pleading' 4G
Distinctions between the two types of res judicata ......... 449 Notice of pre�trial (Bar 1977) ............................................ 40'/
Application of res judicata to quasi-judicial Appearance of parties and cou_nsels in the pre-trial
proceedings .....:·............................................... ; .......... 450 (Bar 1992) .................................................................. 0
No res judicata in criminal proceedings ........................... 450 Effect of failure to appear by the plaintiff
Dismissal on the ground of litis pendentia 451 (Bar 1980; 1981; 1989); remedy ·01
Pleading grounds as affirmative defenses ....................... 451 Effect of failure to appear by the defendant
Remedy of the defendant if the motion is denied ............ 452 (Bar 2011); remedy
When certiorari is available.............................................. 452 How non-appearance is excused
Remedies of the plaintiff if the motion to dis).lliss Pre-trial brief; filing and contents
is granted .................................................................. 453 Identification and marking of evidence ........................... .
When complaint cannot be refiled (Bar 2011) 454 Legal effect of representations and statements
Effect of dismissal of complaint on the counterclaim in the pre-trial brief ........................................... , ......
(Bar 2008; 2010) ........................................................ 455 Effect of failure to file a pre-trial brief............................ .
Hearing of the motion to dismiss ...................................... 455 No termination of pre-trial for failure to settle
C. Dismissal by the Plaintiff One Day Examination of Witness Rule
Dismissal by mere notice of dismissal (Bar 2009; 2016)................................"'·······················,
(Bar 2017; 2018) 457 Most Important Witness Rule (Bar 2016)
Dismissal without prejudice; exceptions .......................... . 457 Questions are to be asked by the judge ............................
Two-dismissal rule (Bar 1989; 2017; 2018) ...................... 458 Pre-trial order ..... ; ..............................................................
Dismissal by filing a motion to dismiss ............................ 459 Implied issues are deemed included in the
Dismissal without prejudice (Sec. 2, Rule 17) 459 pre-trial order 476
Dismissal due to the fault of plaintiff Distinctions between pre-trial in civil cases
(Sec. 3, Rule 1 7) 459 and pre-trial in criminal cases (Bar 1997) 47
Dismissal with prejudice (Sec. 3, Rule 17) 460 Preliminary conference under the 1991 Revised
Effect of dismissal on the counterclaim already Rules on Summary Procedure................................. . ,1
pleaded (Bar 2008; 2010) .......................................... 461 Preliminary conference in the Court of Appeals
Dismissal of counterclaim, cross-claim or and Supreme Court 1,
third-party complaint 462 Modes of Discovery
Meaning and purpose of "discovery"
xxiv XXV
 Duty of the court in relflt;i,.on to the modes IV. Production or Inspection of Documents o.r
of discovery ...........!...................... ; .............................. 480 Things (Rule 27)
Mod�s of discovery under the Rules bf Court Purpose (Bar 2012) .'................................................................... 49
(Bar 2000) ................................................................. 480 Filing of a motion; order of the, court ....................................... . 497
Privileged documents ....................................... ,.: ...................... . 49.
I. Depositions (Rules 23-24; Bar 2010)
Depositions pending action; when leave of court V. Physical a.nd Mental Examination of Persons

i��Jir::� ��:: ;: : : : : : : : :�)}f: : : : : : : : : : : : : : : : : :}�;: : :_: : :

is required .......................................................................... 481 (Rule 28).
Scope of the examination; manner of examination .. .'...............
At�endance of th�/ip.eponerits/witnesses; s�ctions .................. ·4g3
482
i 40
408
Oral Deposition :tt ................................. "(.tL···········:················ 4$'5 ... ,_. .............. 409
Salient guidelines.in the taking of an oral !].eposition ............. 48q Walyer of privilege ............. -'.··· .. ········........................ ..
' ' ,' , ·i
Deposition upon written interrogatories .. !............................... 487 of Discovety
VI. Refusal to Comply with the Modes
Before whom taken .............................................. �'....... :.l.....'.: .... 488 (Rule 29)
Use of depositions pending action ..... : ....................................... 488
Effect of substitution of parties ................................................. 489 A. Refusal to answer any question upon oral
examination
DO
Effect of the taking of deposition of a person ........................... 489
tion
Effect of using the deposition of a person .............................. , .. 490 B. Refusal to answer designated or particular ques
Depositions before action ................. ........................................... 490 or refusal to produce documents or things or
exam inati on .........
Perpetuation of testimony before action ................................... 490 to submit to physical or mental
Depositions pending appeal....................................................... 490 C. Refusal to be sworn
D. Refusal to admit
II. Interrogatories to Parties (Bar 2016) (Rule 25) E. Failure to attend depositions or to serve
answers to interrogatories (Bar 2010) 01
Purpose of interrogatories to parties (Bar 2012; 2016) ............ 491
Distinguished from a bill of particulars.................................... 492 Chapter VIII
Distinguished from written interrogatories in a )

ment
deposition .......... , ................................................................ 492 Trial, Demurrer to Evidence and Judg
Procedure (Bar 2016) .........:..._.................................................... 492 A. Trial
Effect of failure to s�rve written interrogatories ..................... 493 503
· Meaning of 'trial'
503
Trial and hearing
III. Admission by Adverse Party ) 503
When trial is necessary/unnecessary (Bar 1996 505
(Bar 2016; 2018) (Rule 26)
trial ........ ........................................ ........ ......................
Notice of 505
Purpose of admission by adverse party 493 Calendaring of cases
...................... 505
When request is made 494 Session hours........................................................ 505
.. , ........ ....................
Effect of not filing a written request for admission Adjournments and postponements ...-......... 506
........ ........ ............ .
(Bar 2012) 494 Limitation on the authority to adjourn........ 506
er of right
Effect of failure to file and serve a sworn statement Postponement or continuance; not a matt 506
of denial (Bar 2018) 494 Postponement on the ground of illness
nce
Effect of admission 495 Postponement on the ground of ab§1;mce of evide 507
Deferment of compliance 495 (Bar 1975)
507
Withdrawal of admission ........................................................... 495 Reception of evidence

xxvi xxvii
 528
Issues in the trial .................. ,l1 :..i ............................................... 507 ·Pro hac vice rulings............ ;:....................................... : ........ ; ......
Agreed statement of facts ..... L .................................................. 1507 The. principles of stare decisjs and res judicata
Order of 'trial; modification of the order of trial; compared ..................; ........" ......•..................... :........ : .......... . 529
. 529
hot tub hearing .................................................................. 508 ' . ' Obiter dictum ...................... ····· .................................................
Reopening the case of a party for the purpose of .......... .......... .......... .......... ..... . 530
Wp.en a judgment becomes fi:i:laL
introducing further evidence ............................................ 510 judica ta .......... .......... .......... ..... . 531
Effects of final judgments; res
. 533
Consolidation or severance (Bar 2011) ..................................... 510 Amendment of judgment; supplemental judgment.. : ..............
Kinds of consolidations ................................: .............................. 511 y of judgm nts (Bar 2011) .......... ....... . 534
Doctr�ne of immutabilit e
on ii:nmu tabilit y of judgm ents .......... .... .-.. 535
Re asons for the rule
B. Demurrer to Evidence _ j�medies again st a fina](� nd e xecuto ry judgm e rifa
Motion to dis'hiiss in Rule 16 distinguished from · }F exceptions to the db�t�ine of imi;nutability -· t
of judgments ......... ,'.........................................'.. .-................. 535
demurrer; to evidence.....................,. ................................... '.513
. 538
Stage of the pfoceedings when demurrer to evidence Meaning of "judgment orlthe merits" ..................../, ..............
..... . 538
is availed of ..............................................................L ••••••••• 514 <Doctrine of the law of the case ............. , ..............................
......... . 539
Ground for a demurrer to evidence 514 ··Several judgment ..............................-...............................
.......... ........ . 5¼0
Effect of denial of the demurrer to evidence............................. 514 Eleparate judgment ..................................................
540
Effect of granting the demurrer to evidence............................. 515 Conditional judgment
Demurrer in a civil case as distinguished from 540
Judgment sin p erjuicio
a demurrer in a criminal case ,(Bar 2007) 516 Judgment nunc pro tune (literally, "now for then")
(Bar 2012; 2014)
541
..
C. Judgment Judgment upon a compromise (Bar 1996; 2012) ..............·......
41

Judgment upon a confession (cognovit action e m) 64 : ·l

Meaning of a judgment ............. i'. ............................:••.•··············· 517
Judgment and decision 517
D. Judgment on the Pleadings
Requisites of a valid judgment 517
(Bar 1978; 1993; 1999; 2014; 2015; 2016)
Orders granting or denying a motion to dismiss ...................... 519
Conflict between the dispositive portion and Nature of judgment on the pleadings
body of the decision 519 . Motion required; resolving the motion
Ambiguity in the judgmerit;.. clarificatory judgment................. 520 Cases where judgment on the pleadings will not apply.......... .
Resolutions of the· Supreme Court. ........................................... . .. . . 520
Iriterlocutory orders 521 E. Summary Judgment
Questioning interlocutory orders .............................................. 522
Memorandum decisions (Bar 2012) 522 Nature of summary judgment (Bar 1986; 1989;
Meaning of rendition of judgment ............................................. 523 1996; 1999; 2014; 2015; 2016)........................................... ;1
Period within which to render a decision ................................. 524 Motion required........................._................................................. ;1
Extension of the period to render a decision ............................ 524 Distinctions between a judgment on the pleadi ngs and a
Judgment penned by a judge who did not hear · summary judgment (Bar 1989; 2016) ...............................
the evidence............................................................... 525 Judgment against an entity without a juridical
Judgment penned by a judge who had ceased to personality................................................................ .
be a judge 526 Entry of judgment; date thereof.. ............................................ .. tH
Judgment penned by a judge who was transferred 526 Relevance of knowing the da te of the.,entry
Judgments of the Supreme Court; precedents 526 of a judgmen t
1,1
Rule on stare decisis; applies only to Supreme
Cour t decisions 527

xxviii xxix
 s�pterJX When to file ........................................................................ 563
Post Ju(J.gnient Remedies Effect ofthe filing oftlie motion on the period
to appeal ....................... :..................·...... :................. 564
I� Remedies
· Before a Judgment Becomes Final
Form ofa motionfor new trial....., .......•.............·.............. . 564
. and' Executory
Groundsfor a motionfor new trial (Bar 2011) ............... . 564
Post judgment remedies available to the.aggrieved Non-compliance with this req�irement would
party (Bar 2006) ................... h•········......... ; ........ .:... : reduce the motion to a mere proforma motion .......
, ......... 550 565
A. Motion for Reconsideration (Rule 37; Affidavit ofmerit ............................................: ....... : ...... : ... 565
, Bar 2009; 2014) Newly-discovered evidence; requisites ........ :......... ,.......•.. 565
·• � .
,./if, ....
Oli,J�ct ofthe motion ....... ,.'.�1 ....... : ........................... " Gross negligence ofcounsel not a · · • . ::· . . ·
M0tion for reconsideratiorilin cases covered by
551 grou,nd f�'j! new trial.................. ;c.,,t ................. , ...... 566
· summary Resolution ofthe motion ....:...,,.......•.... .f.\'....................... ,. 566
procedure ...,:'. ....................................... ,.:..... 551
Motionfor reconsideration in small claims cases Denial ofthe ri).otion; the "Fresh Period;'. Rule:..,............. 566
.... /..... 552 Order ofdenial, not appealable ............ ::............... ; .......... 566
Motion for reconsideration in petitionsfor
Remedy when motion is denied ...................................•..•. · 566
writ ofamparo and habeas data 552 Effect ofgranting the motion for new tr1al
Motionfor reconsideration in environmental cases ......:. 552 (Bar 2011) .. :.................................. ; .... :....................... 567
When to file ........................................................................ 552 Partial new. trial ............................................. ,.;.,....·........ ;.. 567
Effect of the filing ofa motion on the period to appeal ... 553 Second motion for new trial, ............................. :::......, ....... 568
Grounds for a motionfor reconsideration;
what to allege New trial in appealed cases 568
553
Proforma motion (Bar 2011) ....................................
........ 554 APPEALS
Resolution ofthe motion:;•.............................................
.... 555
Remedy against the order denying a General principles on appeal 60
motion for reconsideration Judgments or orders that are appealable
555
Remedy when motion is denied Judgments or orders that are not
555
The "Fresh Period" rule; Neypes rule........................... appealable (Bar 2014)............................................... 1
.... 556
The Neypes rule has no application to non-judicial Remedy in case the judgment or final order is not
proceedings.....-........................................................... appealable
558
Application ofthe Neypes rule to criminal cases......... Remedy against an order ofexecution; exceptions ..........
.... 559
Order of denial, not appealable Issues that may and Il1ay not be rais�d on appeal ..........
560
Effect ofgranting a motion for reconsideration......... Role ofthe appellee
...... 561
Partial reconsideration Errors to be considered by the appellate court ................
561
The "Single Motion'; rule (Bar 2013) Harmless errors (Bar 2017)
561
Motion for reconsideration in appealed cases; Appeals in criminal cases ................................................. .
stay ofexecution (Rule 52; Bar 2012; Payment ofdocket fee; liberal construction
2013; 2016) 562 Record on appeal; notice ofappeal
Dismissal ofan appeal ....................................... , .............. .
B. Motion for New Trial (Rule 37) Withdrawal ofthe appeal..................................................
Nature ofa new trial
562
Motion for new trial in cases covered by A. Appeal from Municipal Trial Courts to the
summary procedure 563 Regional Trial Co,!lrts (Rule 40)
Motion for new trial in small claims cases........
............... 563 Where to appeal from a judgment or final
Motion for new trial in environmental cases
563 order ofa Municipal Court (Bar 2014) 6
XXX
xxxi
Effect of failure to set the motipn for hearing, Service in person on defendant
include a notice of hear#i·g and serve (formerly personal service of summons) ................, II I
the motion (Secs. 4, 5, 6 of Rule 15).................................. 386 Substituted service of summons
Summary of the requirements in filing a motion.................... 386 (Bar 2004; 2006; 2013{ 2016; 2017; 2018).............,.,
Motion for leave to file a motion................................................ 387 How substituted service is. made.............. :.. --·............,.,,,. •1 11
1

The Omnibus motion rule (Bar 2010; 2011) ............................. 387 Effect if defendant does not actually receiv
Prohibited motions under the 1991 Revised Rules the summons...............•......... ;..................... , ...,.,,.,..,,
on Summary Procedure..................................................... 388 When defendant prevents service of summon1i,.,,.,..,.,.,.,.
Prohibited motions in the Rules on the Writs of Summons by publication........... ;.......... :............ ,,.,,.,.,,.,.,,.
, Amparo and Habeas :Qata................................ ;\;••············ 388 Service �pon a defendant whoseJidentity O:t"
Pi;i1pibited motions under t.ne Rules of Procedure ;:{ whereabouts are unknown'.1 1 •••••••.
··•.. for Small Claims Case�, as amended .............. L'.............. 389 Service upon a resident temporarily out
' '_!i.�:
t,,
n •• ,; .. """'"'""'"
•" �."

Prohibited motions under the Rules of Procedure of the Philippines....................:.................... ,.,.., 11

Extrater�ito;ial service of summrins .......................... ,., .. , ' 1!·111
11,,.11 .. ,

for Environmental Cases ......'................................. ,.......... 389

•,
·�· ·1:.

Actions involved in extraterritorial servio

ChapterV of summons.: ..................................... •·••••••••••••••••••••••
Modes of extraterritorial service (Bar 20081 �O 1111,.. ,......
Summons Application of principles ....•.. ,....... ,.............................. ,....
Purpose and importance of summons ........................... :........... 391 Suits against non-resident defendants who hnvl
Service of summons applies to any:actions .............................. 392 properties in the Philippines but ax·o 011l,1ili/i
Summons in actions in personam (Bar 2016) .......................... 392 of the country ....................................... ,,,., ......,,,,,.,,,, tfl
Effect of knowledge of the filing of the action........................... 393
Purpose of summons in actions"in rem and quasi i� rem........ 394 ChapterVI
Voluntary appearance by the defendant (Bar 201°7)................ 395 Proceedings After Service of Smmno:n
Who issues the summons........................................................... 400 and Dismissal of Actions
When summons is issued........................................................... 400
To whom summons is directed.................................................. 400 Preliminary statements t:111
Who serves summons (Bar 2012) .............................................. 400 A. Motion for Bill of Particulars
Contents of the summons.......................................................... 400 When to file the motion.....................................................
Return and proor'of service (Bar 2012)..................................... 401 Purpose o( the motion 3'"'
Uniformity of tlie rules �n summons ..................................... '... 401 Purpose of a motion for bill of particulars in a
Service upon an entity without a juridical personality ........... 401 criminal case (Bar 2018)...........................................
Service upon a prisoner .............................. :.............................. 402 Requirements for the motion
Service upon a minor and an incompetent............................... 402 Action of the court (Bar 2008; 2010; 2012).......................
Service upon a domestic private juridical entity...................... 402 Compliance with the order.............. ,.................................
Old rule on service upon a domestic Bill of particulars as part of the pleading
private juridical entity ... :... :.... :........................................ 403 Effeot of non-compliance or insufficient compliance
Service upon a foreign private juridical entity......................... 406 with the order of the court 439
Foreign private juridical entities not registered in the Stay of period to file responsive pleading......................... 439
Philippines or have no resident agents............................ 408 B. Motion to Dismiss
Service upon the Republic of the Philippines........................... 409 A motion to dismiss is not a plJading 440
Service upon public corporations ................ .............................. 409 Hypothetical admissions of a motion to dismiss
Service upon an unincorporated government agency .............. 409 (Bar 1989).................................................................. 440
xxii xxiii
 F. Mode of App aj to the Supreme Court
f1 Judicial discretion............. ,...................................... ,.. , .... , ........ . 653
'
II - Remedies After a Judgment has Become Final Motion for reconsideration ...........................,........................... . 653
and Executory Exceptions to the rule requiring a motion for
reconsideration .................................. •···· •• •·• • • • • • • •· • • •········ ···· 654
A. Petition for Relief from Judgments Orders Material Data (Date) :B-u�e................................... ,...................... 655
or Other Proceedings (Rule 38) Certific�tion l;lgainst forum shopping .............................········ .. 656
Nature of the petition ................................................................ 632 Jurisdiction (Bar 2012); observance of hierarchy
Grounds for a petition for relief; proper court.......................... q33 of courts.......................................................... :•·················· 656
Extrinsic fraud; concept (Bar 20li) ..................................... :.... 634 Certiorari does not interrupt the principal case ......... ....... :..... 657
.
.·�Petition is available only to the parties·············":.................... 634 Remedy in,order to interrupt the c�urse of the.
1 prin<';_ipal case ..... :................. ;�{\ ················ ............... . ;..,..,: '·�·: . 657
J 1F�tition is available to p�oceedings after the judiment .......... 63p
C�rtiorari ti.nder the Constitution ahd the R'.1les
\
i '
·,: When. to file ·················-'··········································:··················· 635 .
,,Form of the petition; affidavit of merit ................ :·.................... 636 of Court; the expanded conce�ts of certior��1 and
. /
Order to answer ............................ '. .................................,.......... 636 prohibition in relation to the �ov.:er of jud1c1al reVIew .: .. 658
Hearing of the petition............................................................... 636 • When a petition for declaratory rehef 1s proper _and
Action of the court............... ........................................................ 636 not a petition for certiorari ................................... • ... • •·•.... 6p2
.
Preliminary injunction pending the petition for relief ............ 637
No petition for relief in the Supreme Court and D. Collateral Attack of a Judgme!1t
Court of Appeals····················;··········································· 638 Distinction between a direct attack from a collateral
No petition for relief in summary procedure, small claims ..... 639 attack ................................................................................. 663
Petition for relief in environmental cases................................. 640
ChapterX
B. Annulment of Judgments, Final Orders or
Resolutions (Rule 47) Execution and Satisfaction of Judgments
Nature of the action ............................................................... Meaning of execution .................................••······························ 665
.... 640 Part of the judgment to be executed ......................... ••..•• ....• ..· .. 665
Court in which action is commenced ....................................
.... 642 665
Grounds for annulment (Bar 2014; 2016)........................... When execution shall issue ...............................•• ......· ........· .... ..
...... 642
Extrinsic fraud ............................................................... How execution shall issue ................•......... •· •· .......................·· .. 666
............ 643
Forgery or perjury.................. :............................................. Where application for execution made...................................... 667
...... 644
Lack of jurisdiction ................... :.......................... :.................. . No appeal from an order of executio� ......,........................ ,........ 6(\8
... 644 Form and contents of writ of execut10n .................................. .. 668
Period for filing the action .............................................
............ 645
Who may file the action ...................................................... Duty of the sheriff ....................... •.... •• ...... • ....· ..· ...· .....· ......··· ..· ..· 668
....... 645
Effect of a judgment of annulment.................................... Writ of execution should conform to the dispositive
........ 646
Remedy when the questioned judgment has already portion of the judgment......................•.......... • ........· ....· ..··· 668
been executed.................................................................... Lifetime of the writ of execution (Bar 1995)........• ........•........· .. 669
. 647 When execution will be denied.................................................. 669
Application of Rule 47; annulment of
judgments of the MTC............... :...................................... Quashal of a writ of execution (Bar 2009) ............. :.................. 670
. 647
Annulment of judgments of quasi-judicial bodies ........ Modes of execution of a judgment
............ 647 (Bar 1982; 1987; 1997) ...................................................... 672
C. Certiorari (Rule 65) Revival of judgment (Bar 1997)................................................ . 673
Venue of an action to revive a judgment ................................. . 679
Nature of the remedy (Bar 2013) .............................................. 648 When the five-year period is interrupted (Bar 1993)............. .. 680
Certiorari under Rule 65 is not an appeal .............................. . 652 When the five- and 10-year periods do not apply ................... .. 681

xxxiv XXXV
 Stay of execution of a judgmep&, exceptions ............................. 681 Chapter XI
Judgments not stayed by l:!-Pp'eaL ..,.........................., ................. 6�2 Miscellaneous Rules
Discretionary execution (Bar1991; 1995) 683
Requisites for discretionary execution ...................................... 684 A. Small Claims Cases (Basic Features)
Discretionary execution is to be strictly construed 685 A.M. No.08 -8-7-SC (The Revised Rules of Procedure
Good reasons .............................................................................. 685 for Small Claims) ............................................................... 706
Frivolous appeal as reason for discretionary execution ........... 687 Purpose/Objectives .................................................................... 707
Posting of bond as reason for discretionary Inapplicability of strict procedural rules 707
··execution (Bar1991) ........................, ...................:; ........... 68J Jurisdiction ...·: ....................................... :·.................................... '707
Financial distress .�b reason for discretionary . ·',}
Conf,.Tencement of the claimi.:;�tatement of claims .. ·O t .......... 709
execution ......i:( .....................................:\H: ......................... .
' ::,,i·

689':; f
Venue .................................. .;;:......................................},,· .......... 710
Where to file an application for discretionary execution ......... 689 Actiop. of the court; dismissal ....................................... , ............ 711
Remedy where thejudgment subjlilct to disctetionary Summons ..............................:·........................................: ........... 712
execution is reversed or annulled ...........................'. .......... 689 Response 712
Execution in case the judgment obligee dies 689 Hearing/postponement 713
Execution in case thejudgment obligor dies 690 Decision/Execution .................................................................... . 714
How to execute judgments for money; summary ..................... 690 Appeal ......................................................................................... 715
Money judgments are enforceable only against Reminders 715
property of judgment debtor 692
Garnishment of debts and credits 693 B. Basic Features of the Barangay
Levy of encumbered property 693 Conciliation Proceedings
Effect of levy and sale of property ............................................. 694
Execution of a judgment for the performance Basic Principles 716
of a specific act 694 Proceedings before the barangay are not judicial
Execution for a judgment for the delivery or proceedings 71
restitution of real property (Bar 1995) Importance of barangay,conciliation proceedings
695
Contempt is not a remedy (Bar2012) 717
696
Removal of improvements on the property subject No motu proprio dismissal 719
of execution· Rule in relation to cases covered by summary procedure ....... 719
697 Non-
Property exempt from executiori{Bar 1981) 697 . . .. compliance with conciliation proceedings is not
jurisdictional. .. .'.............; .....................................·.............. . 719
When the property mentioned is not exempt
Subject matters for settlement (Bar2009) 720
from execution 698
Venue 724
Proceedings when property levied upon is claimed
Initiation of proceedings 724
by third persons; terceria (Bar1982 ; 1984;
Personal appearance of parties 725
1993; 2011) .......................................................... : .............. 698 Parties to the proceedings 725
Miscellaneous principles to be remembered in
Form of settlement ................ :................................................... 725
execution sales ................................................................... 701 Effect of amicable settlement and award; repudiation ........... 726
Sale and redemption of real property (Bar2009) ..................... 703 Repudiation of the settlement 727
Effect if no redemption is made 703 Execution of award or settlement (Bar2012) ......................... .. 728
Rents, income and earnings of the property
pending the redemption 704 Case Index 730
Remedy when the judgment is unsatisfied
(Bar1983;2002;2008) 704

xxxvi xxxvii
¥129 Chapter I
GENERAL PRINCIPLES

I. REMEDIAL LAW AND TIIE RULES

•OF COURT

" Concept o( remedi�I law; sources

1. Remedial law, as commonly understood, refers to
the rules which provide the system for the protection of
rights, the 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.
2. Stated in some other way, remedial law provides
the "means and methods whereby causes of action may be
effectuated, wrongs redressed and reliefs obtained" (Black's
Law Dictionary, 5th Ed., 1162, citing Schmitt v. Jenkins Truck
Lines, Inc., 260.Iowa 556, 149 N. W2d 789, 792).
3. The Rules of Court, promulgated by the Supreme
Court, constitutes the main source of remedial law in the
Philippines. It is not, however, the only source. Rules of
procedure may come from circulars and administrative
issuances of the Supreme Court. Procedural rules are also
embodied in some provisions of the Philippine Constitution
and even in some statutes passed by the legislature .

Substantive law distinguished from remedial law (Bar 2006)

./ 1. Remedial law is not �{ibstantive law. Substantive
law creates, defines, and regulates rights and duties

1

2 CML PR,,91:IBDURE, VOLUME I
THE BAR LECTURES SERIES
concerning life, liberty, or property (See Primicias v.
Scope of civil procedure, in the Rules of Court
Ocampo, 93 Phil. 446, 452). Remedial law does not create
rights or obligations but lays down the methods by which
the rights and obligations atisihg from substantive law are
protected, enforced and given effect (See Bustos v. Lucero, .
81 Phil. ,640, 653-654). Remecli,al law, in other words, is that
aspect of ;i
law which provides method for enforcin'g·; rights,
preventing the violatiOn of such rights arid obtaining
redress for their violations. _Remedial law, also known as
adjective law, prescribes the practice, method, apd procedure
by which substantive law is enforced and made effective.
2. Recall that, under the Civil Code, those who, in the
performance of their obligations are guilty of, among others,
fraud or negligence, are liable for damages in favor of the
persons aggrieved by such acts (See Art. 1170, Civil Code).
While this provision clearly creates a right to damages on tlle
part of the victim of fraud 1 or negligence, it does not outline
the means by which damages may be obtained from the erring
party. It is remedial law, specifically civil procedure, which
provides the methods by which the aggrieved party may
recover damages.
Recall too that, m;ider the Revised Penal Code, a person
who shall kill another ,with evident premeditation or in
consideration of a price, reward or promise� shall be guilty
of murder and shall be punished by reclusion perpetua (See
· Art. 248, Revised Penal Code). The Revised Penal Code,
however, does not lay down the procedure for the punishment
of the perpetrator. For this, recourse has to be made to the
provisions of the rules on criminal procedure, another part of
remedial law.
Major aspects of remedial law
/Remedial law has the following major aspects: (a) Civil
Procedure, (b) Criminal Procedure, (c) Special Proceedings,
and (d) Evidence. In addition to these aspects, there are some
special rules of procedure emanating from various circulars
issued by the Supreme Court.
CHAPTER! 3
GENEi:!:iL PRINCIPLES
Civil procedure includes:
(a) oi:dinary civi_l actions (Rules 1-56);
(b) provisional remedies (Rules 57- 6 1); and
(c)' spec_ial �iyiI actions (Rules . 6,2"7J).
.. ·_.-: . . )/t; .� . . :.::, .... ,::._�_;,_
The Rules of Court, as a whole, has r�ference to the bod
rules governing pleading, practice and procedure promulgated : ;
by the Supreme Court pursuant to its 'rule-making po�ers
under the Constitution. Since such rules do not origin::,lte·from
the legislature, they cannot be called laws in the strict serise of
the word. However, since they are promulgated by authority
of law, they have the force and effect of law (Alvero v. De la
Rosa, 76 Phil. 428, 434) if not in conflict with positive law.
The Rules are subordinate to statute, and in case of conflict,
the statute will prevail (Shioji v. Harvey, 43 Phil. 333, 342;
Inchausti v. De Leon, 24 Phil. 224, 226; Altavas v. Court of
Appeals, 106 Phil. 940, 943).
Prospective effect of the Rules of Court (Bar 2011)
1. The rules embodied in the Rules of Court are not
, penal laws and are not to be given retroactive effect (Bermejo
v. Barrios, 31 SCRA
.
764, 776).
.
2. The rules shall govern cases brought 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 (See Rule 144, 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 (See
In the Matter to Declare in Contempt of Court Hon. Simeon
Datumanong, 497 SCRA 626, 636-637). The rules are
retroactive only in this sense (PCI Leasing and Finance, Inc.
v. Go Ko, 454 SCRA 586, 592; see also Go v. Sunbanon, 642
SCJxA 367, 383).
 4 CML PRO.G:EDURE, VOLUME I
THE BA.)1 LECTURES SERIES
It need be mentioned that Rule 144 expressly makes
the rules under the Rules of Court applicable'also to "further
proceedings in cases then pending" when the Rules of Court
took effect. 'For instance, the Oourf applied tope:ndi:ng actions,
a rule promulgated through a case (Neypes v. Court of Appeals,
469 SCRA 633) which sta.ndardized the period fpr appeai by
allowing a 'fresh period' 'of15 days within whi¢h to file the
notite of appeal with the :Regional Trial Court, tbunted· from
recE!_ipt of the order dismissing a motion for a 'pew trial or
motion for reconsideration.
Declared the Court:
"x x x Being procedural in nature, Neypes is deemed
to be applicable to actions pending and undetermined at
the time of its effectivity and is thus, retroactive in that
sense and to that extent" ·(First Aqua Traders, Inc. v.
Bank of the Philippine Islands, 514 SCRA 223, 226-227).
When procedural rules do not apply to pending actions
While a procedural rule may be made applicable to actions
pending and undetermined at the time of their passage and is
retroactive in that sense, the rule does not apply:
(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
(Tan v. Court of Appeals, 373 SCRA 524, 537).
Actions or proceedings governed by the Rules of Court
The Rules of Court shall govern the procedure to be
observed in civil actions, criminal actions, and special
proceedings (Sec. 3, Rule 1, Rules of Court) and shall also apply
. C�'.l";l!;RI. 5
GENERAL PRINCIPLES
in all courts, except as otherwise provided by the Supreme
Court (Sec. 2, Rule 1, Rules of Court).
Actions or proceedings not governed by the Rules of. Court
✓ 1. Sec. 4, Rule l of the Rules ofCourt clearly provides .
that theRulepshall not apply to th� following cases:
· (a) !{electiqn .?ases;
(b) land registration cas�s;
(c) cadastral cases;
(d) naturalization cases; and
(e) insolvency proceedings.
2. The use of the Rules of Court is not totally
prohibited in the cases enumerated in the preceding number.
The Rules may apply to the above cases by: (a) analogy, or
(b) in a suppletory character and whenever practicable and
convenient (Sec. 4, Rule 1, Rules of Court).
3. It has also been held that rules of procedure
imposed in judicial proceedings are unavailing in cases befor
administrative bodies. Accordingly, l:ldministrative bodi
are not bound by the technical niceties oflaw and procedur
and the rules obtaining -in the courts of law (Department
of Agrarian Reform v. Uy, 515 SCRA 376, 399). Even the
COMELEC, a quasi-judicial body, is not bound to strictiy
adhere to the technical rules of procedure in the presentation
of evidence (Reyes v. Commission on Elections, G.R. No.
207264, June 25, 2013). It has similarly been declared that
the rules on evidence are not strictly applied in proceedings
before administrative bodies such as the Board of Medicine
(Atienza v. Board of Medicine, 642 SCRA 523, 529, February
9, 2011).
4. Jurisprudence has actually long affirmed the
principle that the judicial rules of procedure do not apply to
non-judicial proceedings, among others, labor disputes.
Labor disputes are not governed by the strict and technical
rules on evidence and procedure observed in the regular courts

6 CIVIL PR.Op�pUR:ii:, VOLUME I
THE BA.it LECTURES.SERIES
of law. 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.
labo_r problem (Sime Darby Employees Association v. NLRC,
510 SCRA 204, 222; See also Panunci,llo v. CAP Phils., Inc.,
'ffel 5 SCRA 323, 3,41). T.liat is why a reliimce ·&n the technical
rules on evidence in lkbor cases is misplaced. To apply, for
instance, the concept ofjudicial admissions in' such cases, is to
exact compliance with technicalities contrary to �he demands
of substantial justice (Mayon Hotel and Restaurant v. Adana,
458 SCRA 609, 629).
/ An earlier labor case held that although mere affidavits
are hearsay, when used in court proceedings, the argument
that the affidavits attached to:the case are hearsay because
the affiants were not presented in the labor case for cross­
examination, was deemed p.ot persuasive. This is because,
the rules on evidence are not strictly observed in proceedings
before administrative bodies like the NLRC where decisions
may be reached on the basis of position papers only. Rules
that prevail in judicial proceedings are not controlling before
the labor arbiter and the NLRC (Bantolino v. Coca-Cola
Bottlers Phils., Inc., 40$ SCRA 699, 703). Even in appeals
in labor cases, · the requirement of proof of service may be
dispensed with sfoce, in such· appeais, non-service of copy of
the appeal or appeal memorandum to the adverse party is
not a jurisdictional defect which calls for the dismissal of the
appeal (Millennium Erectors Corporation v. Magallanes, 634
SCRA 708, 713-714).
5. In a much earlier case, the petitioner-argued against
the order of the appellate court admitting a documentary
evidence not formally offered in evidence in the trial court.
The petitioner, invoking Sec. 34 of Rule 132, argued that only
evidence which has been formally offered shall be considered
by the court and that such formal offer is made in the trial
court and not for the first time in the appellate court. The
contention, however, was ruled by the Supreme Court as
bereft of merit. The Court emphasized that the rule on formal
,,, l• .c�-Ell.I, - ... 7
:GEJ:'IER.AL PRINCIPLES.
offer of evidence is not applic;able to a case involvi:µg a petition
for naturaliza_tion (Ong Chia v. Republic, 328 SCRA 749, 756).
6. In another case of a more recent vintage, the Court
brushed aside the respondent's objection to· the subrni�sion
of· J:l1ere phot_ocopies in .a quasi-judicial proceeding. involving
iSSll�S in Jntellectual prqp�l'.ty:_ '.l'he' Court r,eit�i;ated,the rule
that qual#-j�diciaJ and 'aqiµini��rative bodies' -�t� 7:1-oi�:bound
by the techmcal rules of proced-iire, that te�hmcahties'should
never be used to defeat the suh$tantive rights of a party, and
that every litigant should be afforded the opp.orturi.ity for
the proper and just determination of his cause, '.free from the
constraints of technicalities (Birkenstoqk Orthopaedie GMBH
and Co. KG v. Philippine Shoe Expo Marketing Corporation,
G.R. No. 194307, November 20, 20i3).
The need to follow fundamental evidentiary rules
The Supreme Court, however, emphasized that "While
administrative or quasi-judicial bodies x x x, are not bound
by the technical rules of procedure, this rule cannot be taken
as a license to disregard fundamental evidentiary rules; th
decision of the administrative agencies and the evidence it
relies upon must, at the very least be substantial" (Primo v.
Mendoza Vda. de Erederos, G.R. Nos. 172532 and 172544-4
November 20, 2013).
II. RULE-MAKING POWER OF
THE SUPREME COURT
Constitutional authority to promulgate rules
/ 1. Sec. 5(5), Art. VIIL Constitution of the Philippines
expressly confers upon the Supreme Court the power to:
"x x x Promulgate rules concerning the protection
and enforcement of constitutional rights, pleading,
practice, and procedure in aH courts, the admission to the
practice of law, the integrated bar, and legal assistance. to
the underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts, of the same grade,
8 CML PR0,,9EPURE, VOLUME I
THE BAR!LECTURES SERIES
and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-
]
judicial bodies shall remain effective unless disapproved
by the Supreme Court."
2: The rule•making power of the Supreme Court
specifically include�, the constitutional pq,yver to promulgate
rules concern1rig ple'ading, practice/and p�ocedure (Sec. 5[5},
Art. VIIL Constituti9n of the Philippines). Describing its rule­
making power under the 1987 Constitution, the Supreme
Court explained:
"x x x The rule-making power. of th[e] Court has
expanded. Th[e] Court for the first time, was given the
power to disapprove rules of procedure of special courts
and quasi-judicial bodies. But most important, the 1987
Constitution took away the power of Congress to repeal,
alter or supplement rules concerning pleading, practice
and procedure. In fine, the power to promulgate rules of
pleading, practice and procedure is no longer shared by
th[e] Court with Congress, more so with the executive x x
x" (Echegaray u. Secretary of Justice, 301 SCRA 96, 112;
/See also /ll§tipona, Jr. u. Lobrigo, G.R. No. 226679, August
15, 2017).
The Court, .in further ,describing its rule-making power,
also held that "It 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" (Neypes v. Court
of Appeals, 469 SCRA 633, 643-644; italics supplied). Such
power is now the exclusive domain of the Supreme Court
(Estipona, Jr. v. Lobrigo, C.R. No. 226679, August 15, 2017).
3.. The other branches of government are said to
trespass upon the rule-making power of the Supreme Court if
they enact laws or issue orders that effectively repeal, alter or
modify any of the procedural rules promulgated by the Court
(Estipona, Jr. v. Lobrigo, C.R. No. 226679, August 15, 2017).
For example, in Carpio Morales v. Court of Appeals
(6th Division), C.R. Nos. 217126-27, November 10, 2015, the
Court declared the first paragraph of Sec. 14 of R.A. 6770
CHAPTER! 9
GENERAL PRINCIPLES
as ineffective. This provision prohibits courts, except the
Supreme Court, from issuing a writ of injunction to delay art
investigation oftheOmbudsman, unless the subject matter of
the investigation is outside its jurisdiction. The Court ruled
the same to contravene the rule-making authority of the
Court. It held that the authority of a court tq issue.injunctive
writs:is embodied in Rule 5a;:of the Rules of.Q�:mrt,�nd is part
of its·:inherent power to is�ti.e all auxiliary writs<and other
means necessary to carry its jurisdiction into effect .under Sec.
6 of R\ile 135 of the same Rules.
Also, in Fabian v. Desierto, C.R. No. 129742, September
16; 1998, the Court struck down the fourth paragraph of Sec,
27, R.A. 6770 as unconstitutional. The provision states that
decisions or orders of the Ombudsman may be appealed to
the Supreme Court 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 motion for reconsideration in
accordance with Rule 45 of the Rules of Court. This provision,
ruled the Court, had the effect of increasing the appellate
jurisdiction of the Court. Under the Constitution, "No law
shall be passed increasing the appellate jurisdiction of the
Supreme Court as provided in this Constitution without its
advice and concurrence." Since it was passed without its
advice and concurrence, its passage was in violation of Sec. 30,
'Art. VI of the 1987Constitution. Moreover, this provision was
found to be inconsistent with Sec. 1, Rule 45 of the 1997 Rules
of Procedure which applies only to a review of "judgments or
final orders of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court, or other courts
authorized by law." This 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 Court of Appeals.
In an earlier case, in Cathq,y Metal Corporation v. Laguna
West Multi-Purpose Cooperative, Inc., C.R. No. 172204, July
2, 2014, the Court ruled that the Cooperative Code cannot
provide for rules on summons and service of processes which
are contrary to those provided in the Rules of Court. Service of
 10 CML PROC,§DURE; VOLUME I
THE BAf!?1;JfoTURES SERIES
summons in civil, criminal, or special proceedings is a matter
of procedure which cannot be replaced by the Cooperative
Code.
Limitations on the rule-making power of the Supreme Court
The following limitations are imposed by the Consiitution
· ,:,
on the rlile-niaking power of thEfSup:reme Court:
(a) The rules shall . provjde a simplifiecl and
inexpensive procedure for the speedy disposition ofcases;
(b) The rules shall be uniform for courts· of the
same grade; and
(c) The rules shall not diminish, increase, or modify
substantive rights (Sec. 5[5], Art. VIIL Constitution of the
Philippines).
Power to amend and suspepd the rules
1. The Supreme Court has the pbwer to amend,
repeal or even establish new rules for a more simplified and
ip.expensive process, and the speedy disposition of cases
-1Neypes v. Court of Appeals, supra; Makati Insurance Co., Inc.
v. Reyes, 561 SCRA 234, 245). The constitutional power of the
Supreme Court.to promulgate rules of practice and procedure
and to amend or repeal the'same necessarily carries with it the
power to overturn judicial p�ec�dents on p�ints of remedial law
through the amendment of the Rules of Court (Pinga v. Heirs
of Santiago, 494 SCRA 393, 398). 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 (Estipona, Jr. v. Lobrigo, G.R. No. 226679, August 15,
2017). .
2. "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" (Commissioner of Internal
Revenue v. Mirant Pagbilao Corporation, 504 SCRA 484, 496).
· CHAPTER! 11
GENERAL PRINCIPLES
Thus, it is within the power of the Supreme Court to n:1ake
exceptions to the Rules ofcCourt. It may permit the.full and
exhaustive ventilation of the parties' arguments and positions
despite the supposed technical infirmities ofa petition or its
alleged procedural flaws (Estipona, Jr. v. Lobrigo, G.R. No.
226679, August 15, 2017).
3. The power ti suspend technical rtiles is obse:rved
to be broader and more pervasive when ej{ercised by the
Supreme Court. For instance, one jurisprudimtial rule that
has been followed with remarkable consistency is the principle
that when a decision becomes ·final, the same can, and sh.,ould,
never be distµrhed. The rule is grounded on the fundamental
principle of pµllLic policy and sound practice that, at the risk
of occasional error, the judgment of courts must become :final
at some definite date fixed by law (See Gonzalo Puyat & Sons,
Inc. v. Alcaide, G.R. No. 167952, October 19, 2016; TomCtS v.
Criminal Investigation and Detection Group [CIDGJ, G.R, No.
208090, November 9, 2016). Nevertheless, the rule has not
been spared from the Court's power to suspend a rule. From
the point of view of the Court, "[T]he power to suspend or even
disregard rules can be so pervasive and compelling as to 0lter
even that which the Court itself had already declared to be
final" (Apo Fruits Corporation v. Land Bank of the Philippines,
632 SCRA 727, 762-763; For further readings, see Sumbilla v.
'Matrix"Finance Corporation, G."R.No. 197582, June 29, 2015).
4. The power to suspend procedural rules or rela� the
application of such rules, has also been exercised in criminal
cases. Note that under 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,
when the Sandiganbayan, in one celebrated case, denied
a demurrer to evidence filed by the accused, a petitior'l for
certiorari was entertained by the Supreme Court. It gra nted
the petition and set aside the resolution of the SandiganbtlYan
_
denying the demurrer to evidence as having been issued . with f
grave abuse of discretion. The Court, in the case, declared that
the "exercise of this power to correct grave abuse of discretion
amounting to lack or excess of jurisdiction on the pa:rt of
12 CML PROPEDURE, VOLUME I
THE BAifLECTURES SERIES
any branch or instrumentality of the Government cannot be
thwarted by rules of procedure to the contrary or for the sake
of the convenience of one side" (Macapagal-Arroyo
.. v. People,
G.R. No. 220598, July 19, 2016).
The Court, on April 18, 2017, in denying the prosecution's
motion forJreconsideration in th1 same case held that/'[T]he
. .
prohibition. contained in Section: 223, Rule 119 of the Rules of
Court is not an insuperable obst�cle to the review by the Court
of the denial of the demurrer to evidence through 'certiorari."
5. Another principle, that has guided tdal courts on
the matter of bail, is that a person charged with an offense
punishable by reclusion perpetua or life imprisonment shall
not be admitted to bail when evidence of guilt is strong (See
Sec. 7, Rule 114, Rules of Cour,t). The tenor of the provision,
which merely echoes the Constitution, allows the denial or
the granting of bail on the basis of the evidence. The accused
is not entitled to bail when the evidence of guilt is strong;
otherwise, he may be allowed bail. In one case, however, the
Court granted bail to the accused, not necessarily on the basis
of the evidence,· but on the basis, among others, of his age
and fragile health. The decision was guided, not only by the
principal purpose of bail, which is to guarantee the appearance
of the accused at the trial, 9ut also by what the Court described
as the "national eommitment to uphold the fundamental
human rights as well as the value and dignity of every person
x x x" (See Enrile v. Sandiganbayan [Third Division], G.R. No.
213847, August 18, 2015).
6. The suspension of the Rules by the Court is not
based on whim·, caprice or flimsy reasons. Jurisprudence cite
important factors that wouid warrant such suspension, like:
(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;
CHAPTER! 13
GENERAL PRINCIPLES
(d) a lack-of any showing that the review sought i:;;
merely frivolous,and dilatory; and
(e) the rights of the other party will riot be unjustly
prejudiced thereby (Sarmiento v. Zaratan, 514 SCIJ4
246, 260, citing Sanchez v. Court of Appeals, 404 BCRA
P. eople v. Layag,. ':G.R. i No. 214875, October;
540; See·.·•also".•·'''
17, 2016);
7. The. Cour.t could take cogni,zance,·of a petition desBity
its procedural infirmities, as when the petitioner has no l<:;gal
standing to file the same. Being a mere proceduraltechnicality,
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 as when the
petition challenges the constitutionality of the manner by
which the President of the Philippines makes appointments
to the judiciary (Aguinaldo v. Aquino IIL G.R. No. 224302
November 29, 2016).
8. It has been consistently held that litigations should,
as much as possible, be decided on the merits and not· on
technicalities. For example, in one case, the Court allowed
the perfection of the appeal of the Republic, despite the delay
of six days, since the Republic stands to. lose hu�dreds of
hectares of land already titled in its name. This was done
in order t; prevent a gr�s� mis��-r�iage �{j��ti�e. Al��'
{�
another case, the Court suspended the rule that a motion for
extension of time to file a motion for reconsideration in the CA
�loes 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 there was lack of any showing that
the review sought is merely frivolous and dilatory. Similarly,
in a later case, the Court permitted the delay of seven days
in the filing of the motion for reconsideration in view of the
CA's erroneous application of.legal principles to prevent the
resulting inequity that might arise from the outright denial of
the petition (Mitra v. Sablan-Geuarra, G.R. No. 213994, April
18, 2018; Citations of the Court, omitted).
 14 CML PROQ;EDURE, VOLUME I
THE B� LECTURES SERIES
Pro hac vice rule
When the Court, in certain exceptional circumstances,
suspends a procedural rule in a particular case, the decision
therein cannot be relied on as a precedent since the ruling is
for that particular case only or pro hac vice. Jurisprudence has
described pro hac vice as a Latin term meaning "for this orie
'bnly.'(When the ruling is q'{ialified as such, Jhe saµrn cannot
be used as a precedent to govern other cases . (Highpoint
Development Corporation v., Republic, G.R. No. 224389,
November 7, 2018).
I The rule on liberal construction; purpose (Bar 1998)
1. The rule is expressed in Sec. 6 of Rule 1 of the Rules
of Court, thus:
"SEC. 6. Construction. - These Rules shall be
liberally construed in order to promote their objective
of securing a just, speedf and inexpensive. disposition of
every action and proceeding."
2. While jurisprudence recognizes the importance
of procedural rules in ensuring effective enforcement of
substantive rights, the law abhors technicalities that impede
the cause of justice (See, for further readings, Miranda v.
Sandiganbayan, G.R. Nos. 144760-61, August 2, · 2017).·
Hence, the rule is that courts should not be unduly strict
on procedural lapses that do not really impair the proper
administration of justice. The higher objective of procedural
rules is to ensure that the substantive rights of the parties are
protected. Litigations should, as much as possible, be decided
on the merits and not on technicalities (Regulus Development,
Inc. v. De la Cruz, G.R. No. 198172, January 25, 2016; See also
Career Executive Service Board v. Civil Service Commission,
G.R. No. 196890, January 11, 2018).
3. A fundamental rule recognized by the Court with
consistency, hence, worth remembering, is that "Procedural
rules are set not to frustrate the ends of substantial justice
but are tools to expedite the resolution of cases on the merits"
. CHAPTER! 15
GENERAL PRINCIPLES
(Pilipinas Makro, Inc. v. Coco Charcoal Phils., Inc., G.R. No.
196419, October 4, 2017). Hence, matters of procedure normally
take a backseat when issues of substantial or transcend.ental
importance are present (Estipona; Jr. v. Dobrigo, G.R.. No;
226679, August 15, 2017). The rule on liberal construction
involves a relaxation of the procedural rules when their rigid
application wi!tild hinder sul>stantiaf justice. This is:becat,ise
the rules of p;bcedure are niere toolsi�designed to facilii�te the
attainment ofjµstice. In sum, the rule means that a strict
and rigid. application of the rul�s of'procedur�, espe�ially 'on
technical matters, which tend to frustrate rather than promote
substantial justice, must be avoided (The Manila Banking
Corporation v. Bases Conversion Development Authority, G.R.
No. 230144, January 22, 2018).
General rule on compliance with procedural rules; exceptions
1. Although the Court has invariably relaxed the rule
on technicalities in order to afford litigants their day in court,
liberal application of procedural rules is still the exception
(Melendres v. Gutierrez, G.R. No. 194346, June 18, 2018). In
other words, the zealous observance of the rules is still the
general course of action as it serves to guarantee the orderly,
just and speedy disposition of cases (Ben Line Agencies
Philippines, Inc. v. Madson, G.R. No. 195887, January 10,
. ., . . '
2oi 8).
2. It has been emphasized that "invocation ofsubstantial
justice is not a magical incantation that will automatically
compel" the Court to suspend procedural rules. Such rules
"are not to be belittled or dismissed simply because their
non-observance may have resulted in prejudice to a party's.
substantive rights" (Cu-Unjieng v. Court of Appeals, 479 SCRA
594, 604; Indoyon, Jr. v. Court of Appeals, 693 SCRA 203, 208-
209, March 12, 2013; Philcontrust Resources, Inc. v. Santiago,
G.R. No. 174760, July 26, 2017; See also Cortal v. Inaki A.
Larrazabal Enterprises, G.R. No. 199107, August 30, 2017).
The phrase, "in the interest of justice" is not "a magic wand
that would automatically compel the suspension of procedural
rules" (Ramos v. Alvendia, 568 SCRA 239, 249; See also Cortal
 16 CML PRQQJi:DURE, VOLUME I
THE B4'LECTURES SERIES
v. Inaki A. Larrazabal Enterprises, G.R. No. 199107, August
30, 2017).
It needs to be reiterated that compliance with the
procedural rules is still the general rule, and abandonme:µt
thereof should only be ·done · in the most exceptional
circumstances (See Pilapil v. Heirs of Brione_s, 514 SCRA
1-97, 201). Earlier; the :court cautionecflitig4;ts that there
should be an effort on the part of the party invoking liberality
to· explain his failure to· abide by the rules (See Abrenica v.
The Law Firm of Abrenica, Tungol and Tibayan, 502 SCRA
614, 622). In other words, 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.
It was never the Court's intent "to forge a bastion for erring
litigants to violate the rules with impunity" (Prieto v. Alpadi
Development Corporation, G.R. No: 191025, July 31, 2013;
See also Magsino v. De Ocarµ,po, G.R. No. 166944, August 18,
2014; See also Philcontrust Resources, Inc. v: Santiago, G.R.
No. 174760, July 26, 2017).
III. NATURE OF THE PHILIPPINE COURTS
Courts of law a,nd equity; .application of equity jurisdiction
1. Philippine courts are ·courts of both law and equity.
Hence, both legal and equitable jurisdictions are dispensed
with in the same tribunal (U.S. v. Tamparong, 31 Phil. 321,
327). When the Court relaxes the strict application of the rules
where strong considerations of justice are manifest, the court
is said to be in the exercise of its equity jurisdiction (Lefebre
V. A Brown Company, Inc., G.R. No. 224973, September 27,
2017). Thus, when the Court justifiably disregards procedural
lapses, it does so in the exercise of its equity jurisdiction.
2. Equity is "justice outside legality" (Ocampo v.
Enriquez, G.R. No. 225973, August 8, 2017). The various
rulings of the Court suggest that the term, equity jurisdiction,
is used to describe the power of the court to resolve issues
presented in a case, in accordance with the natural rules of
<::f;IAPTER I. 17
GENERAL PRINCIPLES
fairness and justice, and in the absence of a clear, positive law
governing such issues.
Equity administers justice according to the basic- tenets
of fairness. Equity denotes a concept of fairness, justness,
and right dealing among men (Black's Law Dictionary, 5th
Ed., ;:540}./ Equity seeks to re�9h and do complete ,':�ustice
where· thErcourts of law are incompetent to· do so becaµse of
l
the ·inflexibility of the rules anc the lack of power to :adapt
their judgments to the special circumstances of cases, Equity
regards the· spirit of the law and not its letter, the intent and
not the form, the substance rather than the circumstance (Air
Manila v. Court of Industrial Relations, 83 SCRA 579, 589).
When equity does not apply
1. Equity is not to be applied in all c'a_ses. Equity does
not apply when there is a law applicable to a given case (Smith
Bell Co. v. Court of Appeals, 267 SCRA 530; 542). For all its
conceded merits, equity is available only in the absence of law
and not as its replacement (Tankiko v. Cezar, 302 SCRA 55.9,
570, citing Aguila v. Court of First Instance .of Batangas, 160
SCRA 579; Ocampo v. Enriquez, G.R. No. 225973, August 8,
2017). It is never availed of against statutory l�w or judicial
pronouncements (Velez v. Demetria, 387 SCRA 232, 238; Be.U
. {{Court of Appeals, 267 SCRA'530; 542; DaXJia�Chan v. Court ·
of Appeals, 268 SCRA 677, 687; Ocampo v. Enriquez, G.R. No.
225973, August 8, 2017).
2. One case is illustrative. Here, the petitioner, upon
sensing the inadequacy of her legal arguments, pleaded that
''those who have less in life sho1J.ld have more in law." She also
sought the application of the Filipino values of pakikisama
and pakikipagkapwa-tao in resolving her case. In reaction to
her plea, the Court declared:
"Such appeal of petitio�er is based on equity which
has been aptly described as 'justice outside legality.'
However, equity is applied only in the absence of, and
never against, statutory law or judicial rules of procedure.
As found by respondent court x x x such equitable
 18 CML PROQEDURE, VOLUME I
THE B�·LECTURE$ SERIES
arguments cannot prevail over the legal findings" (David­
Chan v. Court of Appeals, 268 SCRA 677, 687).
3; In an action to annul a contract of sale of a land,
the buyer moved for the court to order the seller to deposit in
court the amount initially given to the seller as consideratfon
for the land to prevent the dissipation of the amount paid.
The seller opposelthe motion ar�ing t�at a deposit is·;◊t ·
among the provisional remedies enumerated in the Rul�s
of Court. The Court, nevertheless, granted the motion. The
Court considered the case as one that clearly showed a hiatus
in the Rules of Court and in the law because deposit is not
so provided under the Rules as a provisional remedy. If the
hiatus is left alone, it will result in unjust enrichment in
favor of the seller at the expense of the buyer. It may also
imperil the obligation of restitution, a precondition to the
annulment of a contract. This is a case of insufficiency of the
law and Art. 9 of the Civil Code mandates a ruling despite
the "silence, obscurity or insufficiency of the laws." This calls
for the application of equity, which fills the open spaces of the
law. In ordering the deposit, the court accordingly exercised
its "equity jurisdiction" (Reyes v. Lim, 408 SCRA 560, 566).
Judicial power
1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government (Sec. I, Art. VIII,
Philippine Constitution).
2. By constitutional fiat, judicial power is not only
vested in the Supreme Court. It is also vested in the lower
courts created by law. Because judicial power includes the duty
to settle actual controversies, courts are generally constrained
to rule upon moot and academic cases. In other words, to
. . . . 9HN'TER I. 19
GENERAL PRINCIPLES
merit judicial review, the cases should present conflicting or
opposite legal rights, with real and substantial controversies
admitting of specific reliefs (For further readings, see Land
. Bank of the Philippines v. Fastech Synergy Philippines, Inc.,
CIR. No. 206150, August 9, 2017). An issue becomes moot
and· a_cademic when any declaration thereon would be of no
Jjrac�fcal use or value such·fas there is no a'.ctualjubstantial
· relief to which the parti�s- would be entitled (Ocampo v.
Enriquez, G.R. No. 225973, August 8, 2017).
. It is vital to remember that judicial revi'ew does not
C ••
,:;
only extend to matters that require the duty to settle actual
controversies. It also includes the duty to determine whether
or not any branch or instrumentality of the government
has committed acts constituting grave abuse of discretion
amounting to lack or excess of jurisdiction. That government
instrumentality subject to judicial review may be one exercising
judicial, quasi-judicial, executive or legislative powers. The
nature of the functions of the branch or instrumentality of
the government, committing acts constituting grave abuse /
of discretion, is irrelevant (See Araullo v. Aquino III, G.R.
No. 209287, July 1, 2014; Samahan ng mga Progresibon
Kabataan [SPARK] v. Quezon City, G.R. No. 225442, August
8, 2017).
m,ctrine of hierarchy of courts (principle ofjudicial hierarchy)
(Bar 2011; 2017) f
r
1. Under the doctrine of hierarchv , of courts., where
courts have concurrent jurisdiction over a subject matter, such
concurrence of jurisdiction does not grant the party seeking
_relief the absolute freedom to file a p�tition in any court of
his choice. Pursuant to this doctrine, a case must be filed I
first before the lowest court possible having the appropriate I
jurisdiction, except if one can advance a special reason which
would allow a party a direct J;'fSOrt to a higher court.
2. Concurrent or coordinate jurisdiction is that which
is exercised by different courts over the same subject matter
(See Unduran v. Aberasturi, G.R. No. 181284, April 18,
2017). It is the concurrence of jurisdiction among several
20. CMLPROCEOURE,VOLUMEI
THE BAR n'ECTURES
. . SERI ES
4
courts which triggers the application of the doctrine. For
instance, the Supreme Court's original jurisdiction to issue
writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus, and injunction is not exclusive. Its jurisdiction
is concurrent with the Court of Appeals and the Regional
Trial Court. But a direct invocation of the Supreme Court's
jµrisdicti1:m is �llowed only whetj there are special reasons fqr
doing so, cleariy: set out in the petitiob'.: The principle requir�'s
that resort m�st first be made to the lower-ranked court
exercising concurrent jurisdiction with a higher court. Henc�,
the petition must, as a rule, be filed first with the Regional
Trial Court (See Osmeiia III v. Abaya, G.R. No. 214756,
January 13, 2016; Ocampo v. Enriquez, G.R. No. 225973,
November 8, 2016; See also Chiquita Brands, Inc. v. Omelia,
G.R. No. 189102, June 7, 2017). Also, while the Supreme
Court has concurrent original jurisdiction with Regional Trial
Courts in cases affecting ambassadors, other public ministers,
and consuls (Sec. 5, Art. VIII, Constitution of the Philippines;
Sec. 21[2], B.P. 129), the better procedure is to file the action
with the Regional Trial Court. In other words, the rule is that
such concurrence in jurisdiction does not give a litigant an
unbridled freedom of choice of forum (Lanao del Norte Electric
Cooperative, Inc. v. Provincial Government of Lanao del Norte,
G.R. No. 185420, August 29, 2017; For further readings, see
Roldan 7:. Barrios, G.R. Nb. 214f/03, April 2,3, 2018).
In one relatively recent case, several petitions for certiorari
and prohibition were filed directly in the Supreme Court
raising, among others, the issue on whether or not officials of
the Armed Forces of the Philippines committed grave abuse
of discretion when they issued directives to comply with the
verbal order of the president to have the remains ·of former
President Ferdinand Marcos interred at the Libingan ng mga
Bayani. In relation to the doctrine of hierarchy of courts, the
Supreme Court explained, thus:
"x x x [P]etitioners cannot simply brush aside
the doctrine of hierarchy of courts that requires such
petitions to be filed first with the. proper Regional Trial
Court (RTC). The RTC is not just a trier of facts, but can
•. CHAE-TERI 21
GENERAL PRINCIPLES
also resolve questions oflaw in the exercise ofits origin
al
and concurrent jurisdiction over petitions for certiqr ari,
prohibition and mandamus, and has the power to issue
restraining order and injunction when proven necessary"
(Ocampo v. Enriquez, G.R. No. 225973, November 8,
·2016).
3. The doctrine:that requires respect for the hierarchy
II iary
of courts was created tcierisure that every lev&lof the judic
effect ive and effici ent
performs its designated roles in an
t in the denia l
manner. A disregard of the doctrine may resul
of a p�tition (See De Lima v. Guerrero, G.R. No. 22978 1,
nes
October 10, 2017; citations of the Court, omitted; Trilla
2234 51, Marc h 14, 2018;
IV v. Castillo-Marigomen, G.R. No.
214803
for further readings, see Roldan v. Barrios, G.R. No.
April 23, 2018).
garded
When the doctrine of hierarchy of courts may be disre
(Bar 2011)
1. The policy on the hierarchy of courts is not to b
regarded as an ironclad rule. There were instances when it
application has not been absolute and direct resort to a highel'
court was allowed (See Rama u. Moises, G.R. No. 197146,
August 8, 2017). The policy may be disregarded if warranted by
the nature and importance .o f the issues raised in . the interest
of speedy justice and to avoid future litigations (Declarador u.
Bansales, 499 SCRA 341, 348, citing Fortich v. Corona, 28.9
SCRA 624; For further readings, see Roldan v. Barrios, G.R.
No. 214803, April 23, 2018).
2. _ Jurisprudence allowed a direct resort to a higher
court in certain cases like:
(a) when there are special and important reason
clearly stated in the petition;
(b) when dictated· by public welfare and the
advancement of public policy;
(c) when demanded by the broader interest of
justice;
22
THE BAR LECTURES SERIES
CML PROGJDURE, VOLUME.I
1 GENERAL PRINCIPLES
(d) when the ·challenged orders were patent
nullities;
(e) when analogous exceptional and compelling
circumstances called for and justified the immediate and
direct handling by the Court (Republic v. Caguioa, 691
SCRAJ/06, 316-317, February 20, 2013);
<t' when there are g�nuine issues of cori;titu­
tionality that must be addressed at the most immediate
time (The Diocese of Bacolod iJ. Commission on Elections,
G.R. No. 205728, January 21, 2015; Chiqz:tita Brands,
Inc. v. Omelia, G.R. No. 189102, June 7, 2017; See also
Lanao del Norte Electric Cooperative, Inc. (). Provincial
Government of Lanao del Norte, G.R. No. 185420, August
29, 2017); or
(g) when the issues raised are of transcendental
importance (Rama v. Moises, G.R. No. 197146, August 8,
2017; For further read�ngs, see Roldan v. Barrios, G.R.
No. 214803, April 23, 2018).
Doctrine of non-interference or doctrine of judicial stability
(Bar 2011)
1. The doctrine of non-interference (doctrine of
judicial stability) holds that courts of equal and coordinate
jurisdiction cannot interfe�e with each other's orders {Lapu­
Lapu Development and Housing Corporation v. Group
Management Corporation, 388 SCRA 493, 508, citing People
v. Woolcock, 244 SCRA 235). Hence, a Regional Trial Court
has no power or authority to nullify or enjoin the enforcement
of a writ of possession issued by another Regional Trial Court
(Suico Industrial Corporation u. Court of Appeals, 301 SCRA
212, 213). The principle also bars a court from reviewing or
interfering with the judgment of a co-equal court over which
it has no appellate jurisdiction or power of review (Villamar
v. Salas, 203 SCRA 540, 543; Maiialac v. Gellada, A.M. No.
RTJ-18-2535, October 8, 2018).
2. The doctrine of non-interference applies with equal
force to administrative bodies. When the law provides for an
appeal from the decision of an administrative body to the
. C�T�R I . . 23
Supreme Court. or Court of Appeals, it means that such body
is co-equal with the Regional Trial Court in terms of rank
f
and stature, and logically be, yond the control of the latter I
(Philippine Sinter Corporation v. Cagayan Electric Power and
Light Co., Inc., 381 SCRA 582, 591).
' � atutor
Constitution�! and;,st
. -'·
y courts ' ' ''.
1. A constitutional court is one created by a direct
I
constitutional· provision. An example of this court is the
Supreme Court of the Philippines. It owes its creation from
the Constitution itself (Sec. 1, Art. VIII, Constitution of the
Philippines). In the Philippines, only the Supreme Court is a
constitutional court.
2. A statutory court is one created by a law other than
the constitution. All courts in the Philippines, except the
Supreme Court, are statutory courts. They have been created
by statutory enactments. Even the Sandiganbayan is not a
constitutionally-created court. It was not directly created I
by the Constitution but was created by law pursuant to a j
constitutional mandate. The 1973 Constitution required the
then Batasang Pambansa to create a special court to be known
as the Sandiganbayan (Sec. 5, Art. XIII, 1973 Constitution). Its
existence continues to be recognized by the 1987 Constitution.
While its existence is mandated by the . Constitution, its
creation was through and by P.D. 1486, issued by President r
Ferdinand E. Marcos pursuant to his legislative powers under
Amendment No. 6 of the 1973 Philippine Constitution.
Civil and criminal courts
1. Ci�il courts are those which determine controversies
between private persons. Criminal courts are those which
adjudicate offenses alleged to have been committed against
the State (21 C.J.S., Courts, §,4).
2. Philippine courts exercise both civil and criminal
jurisdictions because of the principle in Art. 100 of the Revised
Penal Code that every person criminally liable for a felony is
also civilly liable.
 24 CML PROCEDURE VOLUME I
THE B.Af t'ECTURES SERIES CHAPTER.I· .. 25
GENERAL PRINCIPLES

Superior· and inferior courts

appellate jurisdiction when it has the power, of review over the
. . 1. In the general sense, a court is 'superior' or 'infer decisions or orders of a lower court (21 C.J.S., Courts,, §3).
. ior'
�n re�at10n to an?ther court Hence, a Municipal Trial
Court is 2. Metropolitan Trial Courts, Municipal Circuit Trial
infer10r to a Regional Trial Court while the latter is infer
ior to · Courts, and Municipal Trial Courts are courts of original
the Court 9f Appeals. All courts in the Philippines are
inferior jurisdiction. The Regional Trial Court is, likewise, a court
to the �upreme Court.
of original juri�diction with respect to cases originally filed 'f
2.:�• A superior co�t i��bne with contr6iling :�uthority I
.

w�th it l::mt is al�o a court of app�llateJur1sdiction with iespect

over other courts, and with ;rn: original jurisdiction of to cases . decid�d by tp.e M�nid.pal · Trial Courts w1thin
Ah inferior court is one which"is subordinate to anoth
its own. . ifs
er court ter;ritorialj-q.risdiction (S�p.-?2, If P. lt9). .
the judgment of which may be reviewed by a higher
tribunai The Regional Trial · Court is also a court of original
(21 C.J.S., Courts, §28).
jurisdiction, for instance, with respect to a petition for a writ
Courts of general and special jurisdiction of amparo (Sec. 3, The Rules on the Writ of Amparo) or a
petition for a writ of -habeas data (Sec. 3, The Rules on -the
1. Courts of general jurisdiction are those with Writ of Habeas Data). There are in fact, various cases which
com�etence to decide on their own jurisdiction and cannot be filed originally in any other court, but only with th
take
cogmzance of all cases, civil and criminal, of a parti Regional Trial Court like actions for specific performance and
cular
nature. real actions involving real property with· an assessed value
Courts of special (limited) jurisdiction are those whic in excess of P50,000 in Metro Manila or in excess of P20,000
h outside Metro Manila.
h�ve juris_diction only for a particular purpose or are
clothed
with spec1�l powers for the performance of specified 3. The Court of Appeals is primarily a court of appellat
duties
beyond which t�ey_ have no authority of any kind (21 jurisdiction with competence to review judgments of th
C.J.S.,
Cou�ts, §3). It !S, m other words, that which is confi Regional Trial Courts and specified quasi-judicial agencies
ned to
ar�1c�lar causes 01; which _ cap. be exercised only (Sec. 9[3], B.P. 129). It i� also a court of original jurisdiction
� under
limitations and circumstances prescribed by statute (Und with respect to cases filed before it . involving issuanc of
uran
v. Aberasturi, G.R. No. 181284, April 18, 2017). writs of certiorari, mandamus, quo warranto, habeas corpu
2. A court may also be considered 'general' if it has and prohibition. It is also a court of original and exclusive
t�e �ompet�n�e t? �xercise jurisdiction over cases not jurisdiction over actions for annulment of judgments of
falling Regional Trial Courts (Sec. 9[1][2], B.P. 129).
withi� _the ?ur�s?iction of any court, tribunal, person,
or body
exerc1smg Judicial_o� quasi-judicial functions (Secs. 19[6] It is also a cou:r_:t of original jurisdiction with respect to
and
20 B.P. 129, Judiciary Reorganization Act of 1980
). It is in a petition for a writ of amparo (Sec. 3, The Rules on th·e Writ
of Amparo) or a petition for a writ of habeas data (Sec. 3, The /
:
this context that the Regional Trial Court is consi
dered a
court of general jurisdiction. Rules on the Writ of Habeas Data). Note that these petitions
may be filed originally not only with the Regional Trial Court,
Courts of original and appellate jurisdiction the Sandiganbayan or the si:i:preme Court but al o with th
1. A court is one with original jurisdiction when actio Court of Appeals. An action to annul the judgment of th '\,1'
ns cannot be filed in any other court but originally, only with th
or proceedings are originally filed with it. A court is
one with RTC.
26 CML�RQCEDURE,VOLUMEI
THE �AR LECTURES SERIES
4. The Supreme Court is also. fundamentally a
court of appellate jurisdiction but it -may also be a court of
ori.ginal jurisdiction over cas(;)s affecting amb�ssadors, public
ministers and consuls, and in cases involving petitions for
certiorari, prohibition and mandamus (Sec. 5[1}, Art. VIII,
Constitution of the Phiiippines). It may also be a c6urt of
9,riginal jurisdictipn iri f:a petition for a.writ l�f amparo (Sec. .
$, The Rules on the Wr# of Amparo) ot a petifibn for a writ of
habeas data (Sec; 3, The R�les on the Writ of: Habeas Data).
Note: The Supreme Court en bane is not an 'appellate court
to which decisions or resolutions of a division of the Supreme
Court may be appealed. Bar 1990
Note: It will be observed that appellate courts have "dual
jurisdictions" in the sense that they are riot only appellate
courts but also courts with or,iginal jurisdiction.
Original and exclusive jurisdiction distinguished
l. Original jurisdi�tion means jq.risdiction to take
cognizance of a case at its inception, try it and pass judgment
upon the law and facts, while exclusive jurisdiction precludes
the idea of co-existence and refers to jurisdiction possessed to
the exclusion of others (Cubero v. Laguna West Multi-Purpose
Cooperatives, Inc., 509 SCRA 410, 416).
2. A court may be' conferred both original and exclusive .
jurisdiction over :{particular subject matter. Examples: (a) The
Municipal Trial Court has exclusive original jurisdiction over
cases of forcible entry and unlawful detainer (Sec. 33[2}, B.P.
129, as amended); (b) The Regional Trial Court has exclusive
original jurisdiction over all civil actions in which the subject
matter of the litigation is incapable of pecuniary estimation
(Sec. 19[1}, B.P. 129; as amended); (c) The Court of Appeals
has exclusive original jurisdiction over actions for annulment
of judgments of the Regional Trial Court (Sec. 9[2], B.P. 129,
as amended).
Concurrent jurisdiction
1. Concurrent jurisdiction, also called coordinate
jurisdiction, is the power of different courts to take cognizance
CHAPTER! :;'/
GENERAL PRINCIPLES
of the same subject matter. Where there is
jurisdiction, the court first taking cognizance
assumes jurisdiction to the exclusion of the other
Examples:
. (a) The Supreme, Court has concu1-rGllG 1,:1;lui1111!
jurisdt�tion with; Regioh,al Tfial Courts in cnsJ11 t1fl'111;t;lr 111
ambassadors, other pu�iic ministers, and cofo11; io (iJ,;n,
Art. VIII, Constitution of the Philippines; Srw. tJ,/f-11/, 11, I ,
129);
(b) The Supreme Court has conorn•mnl, o!'lp;lr·1rd
jurisdiction with the Court of Appeals 111 1JiJl,ll lm1
certiorari, prohibition, and man,clamv,1
Regional Trial Courts (Sec. 5, Art. V:"
the Philippines; Sec. 9[1], B.P. 129)·
(c) The Supreme Court
jurisdiction with the Court of 1··
Trial Courts in petitions fo
and mandamus against lower
petitions for quo warranto and
VIII, Constitution of the Philip
Sec. 21[1}, B.P. 129).
2. As earlier mentioned, the con
among courts of different ranks is subj
hierarchy of courts.
Meaning of 'court'
A court is an organ of government bolo,11
judicial department the function of which io [,h
of the laws to controversies brought beforn i (, n
public administration of justice (Black's Lciw /Jt,1•
Ed., 356). A court is called uppr and authoriz:od I,!
justice. Sometimes, it refers to the place whi.lJ'
administered (20 Am Jur 2d, Courts, §
Courts, §1).
 28 CML P�OCEOURE, VOLUME I
THE'IBAR LECTURES SERIES
Court distinguished from a judge
Although the terms, "court" and "judge," have ofte:n been
erroneously mied ·interchangeably, they. have the following
marked distinctions:
(a) A court is a tribunal officially assembled under
authority ofi1aw; a judge is;simpl� an officer of such
tribunal(Wagenhorst v. Philadelphia Life Insurance Co.,
358 Pa. 55, 55A2d 762, cited by Blqck's Law Dictionary,
5th Ed.). . . . traditionally been portrayecl. to be. Inevitably, as he gains
(b) A court is an organ of the government (Black's
Law Dictionary, 5th Ed., 318) with a personality separate
and distinct from the person or judge who sits on it (People
v. Carlos, 78 Phil. 535, 543).
(c) A court is a being in imagination comparable
to a corporation, whereas a judge is a physical person
(People ex rel. Herndon v. Opekl, 188 Ill 194, 58 NE 996,
cited by Black's Law Dictionary, 5th -Ed.).
(d) A judge is a public officer (Todd v. United States,
158 US 278, 39 L Ed 982, 15 S ct. 889, cited by Black's
Law Dictionary, 5th Ed.) while a court is an office.
(e) Jurisdiction does not attach to the judge but to
the court. The continuity �f a court and the efficacy of its
proceedings are not affected by the death, resignation, or
cessation from the service of the judge presiding over it. In
other words, the judge may resign, become incapacitated,
or be disqualified to hold office, but the court remains
(ABC Davao Auto Supply, Inc. v. Court of Appeals, 284
SCRA 218,222).
fV. THE BASIC PROCESSES OF ORDINARY
CIVIL ACTIONS
81r1troductio11
At the outset, the reader needs to be cautioned that
the rules on civil procedure, embodied in the Rules of Court,
are not arranged in accordance with how . they. are usually
CHAPTER I 29
GENER.AL PRINCIPLES
employed in litigation. He:nce, to a beginner, the. vario_us
principles in the Rules of Court may appear to b� a mere
mishmash of rules, scattered and unrelated. It "is, therefore,
understandable for him to be initially perplexed by the rules
especially when he wonders how such rules are to beapplied
in the real world. The impression is, however, only initial and
does �ot reflect what procec;lµral law really fa: Gr�� , ually but
steadlly, however, the student of procedure will :i;ealize that
procedural law is far from being the difficult ·subject it has
mastery of the fundamentals on the subject, he will Soon learn
to appreciate how the subject has been molded by the Court
ip.to a system with a logic of its own that is both rhythmic and
fascinating.
Experience has told us fairly well that it is the ability
to conceptualize the relationships among procedural rules,
which e_nables one to respond with ease to the unexpected
twists in the field of litigation and to even the most cerebrally­
formulated questions in the bar. As a first step to develop such
ability, the principles in this material have been rearranged
not only to enable the reader to approximate the application of
procedural rules in both the bar examinations and litigation
s.ituations but also to prevent his being mired in mer
technicalities.
This work represents a deliberate and an honest attempt
to demystify procedural law, bring civil procedure to a more
understandable and workable level, and dispel the impression
that remedial law is a subject that is either abstract or too
circuitous for comfort. If the reader finds many phrases in
this work stripped of the usual ·legal jargon, this is because
emphasis has been made on bringing civil procedure to a more
practical dimension. The writer believes that another critical
step to achieve this purpose is to avoid the use of impenetrable
legalese or to reduce its use to the barest minimum.
As the title of this topic indicates, this worl� has no
pretensions of being complete, comprehensive and exhaustive.
This is not written for the seasoned lawyer and more so, for
 CIVIL PI!i9QEDURE, VOLUME I
30
THE BAR LECTURES SERIES
the bench. Any material for both the experienced litigator and
the bench requires a more profound analysis ofthe rules and
a treatment that expertly blends the philosophical and the
legal. Such material will, and should, ulti�ately furnish the
reader with the reasons behind every proceduraJprinciple. In
addition, it requp:-es a language that is uniquely regal, yet far,
from being>1;1bsttact or snobbish. · ';,.
...
This material is, on the contrary, humbly written for
j··\,
those who want to start exploring the field of procedure. It is,
in short, written for the novice and the inexperienced. This
material may not be able to take you into every "rabbit hole"
since the rules found in this work attempt to mirror only the
most fundamental aspects of the civil litigation process. The
principles included in this work do not embody all the possible
issues which may arise in 'litigation. Every experienced
lawyer knows that there are certain situations in the cours�
of litigation which unexpectedly occur in the course of the
proceedings and which cannot be reason.ably foreseen even
by the most comprehensive material on procedure. Besides,
there are topics which, due ·to the demands of both scope and
priorities, have to be intentionally left out. This work contains
only those topics deemed indispensable to the acquisition of
the core knowledge required to pass the bar examinations
and start a ca'.reer in tri'al practice. The more complicated
situations· and the finer aspects i:ri civil procedure would
automatically present themselves to the new lawyer as he
acquires experience in the field.
The reader needs to be also reminded that although there
are aspects of the Rules, in fact quite a substantial number of
them, which have to be committed to memory, route memory
has never been the key to success in both litigation and the
bar examinations. Much depend on one's understanding of
the relationships among the isolated principles in the Rules
of Court. The mastery of these relationships will allow the
reader to grasp the most essential procedural principles, so he
may later on proceed to a level of understanding beyond mere
fundamentals.
CHAl'TE;R,I 11
GENERAL PRINCIPLES
As he wades throughthe topics included in this ma.to•·
should not come as a surprise to the reader to find that o
tenets of substantive law have been included in the disOLHJfl11J11
ofthe principles found in this work. This is intentionnl and ,rlli
an important reason. It is imperative for the studer1t of tho !11
to ��al1ze that substantiv� law constitutei:i'the very fouu.11\Llc)T
of'.procedural law '. In otlfer words, without sul;istau'tlvo lnw
. "
procedural law cannot exist.
"'."" :·· •·. . I
{ That procedural law owes its existence t@
law is not difficult to understand. For exa1nplo1 subotn,1,t,i\l
law provides, through Art. 11 70 of the Civ-11
those obligors who are guilty of fraud, neglip
contravention of the tenor of the obligation ur0
damages. While the liability for damages is clour
for by substantive law, the Civil Code fails to lo.
procedure by which an obligor could be made liabl
mandated liability. This omission is supplied by tl
civil procedure which requires the filing of a complai
a court. Also, while substantive law, through Axt. 248 of tho
Revised Penal Code provides that one who commits lTI.U!'dUl'
shall be penalized by reclusion perpetua, the same law dooH
not establish the procedure by which an offender may be n1ad
answerable for the offense committed. The answer is not found
in the Revised Penal Code. It is found in the rules of cril'ninnl
procedure which similarly requires, among others, the {i}in1i
of a criminal information before the court.
I. Complaint
At this stage, it is necessary for the student to full
understand that the rules of civil procedure in the Rules 0£
Court are not self-executing. Even a court, vested by law
with jurisdiction over certain subject matters, cannot, 01
its own initiative, take cognizance of a case and try to sett
conflicting claims between and among individuals. Without
someone going to court to invoke the rules and the jurisdicti
of the court, such rules would be nothing but mere dark
letters written on a white background. It is the act of fili
the initiatory pleading called a complaint, that triggers botl
 CML P:i;tOQEDURE, VOLUME I
32
THE BAR LECTURES SERIES
the practical application of procedural rules and the laws on
jurisdiction.
The complaint is the first document, technically called a
pleading, which is filed in court by a party called the plaintiff.
It is the filing of this complaint in court which signifies the
commencement of a civil action.
The pjiinary purpose o; this. pleading is to sue an'dther
for the enforcement or protection of a right, or the prevep.tion
or redress of a wrong. Through his complaint, the piaintiff
apprises the adverse party, called the defendanti of the nature
and basis of the claim. Most important, it is the filing of the
complaint which enables the court to acquire jurisdiction over
the person of the plaintiff. This jurisdiction is. implied from
the fact that by seeking affirmative relief from the court, he
recognizes the jurisdiction of the court. In other words, by the
mere filing of the complaint, the plaintiff, in a civil action,
voluntarily submits himself to the jurisdiction of the court.
' '
A. Right of action and cause of action
1. From the point of view of the plaintiff, the need for
the application of the rules of civil procedure starts when he
believes that someone has violated his rights. A complaint
is filed not because one' simply wants to file a complaint.
The iitigation process involves much more than the mere
mechanical act of drafting the complaint and filing the same
with the court. The filing of a complaint requires a prior
determination whether or not the plaintiff possesses a legal
right to file the desired complaint. This, in turn, requires
knowing whe�her or not the plaintiff has a cause qf action
enforceable against the defendant.
A cause of action arises when someone violates the rights
of another. This cause of action has its origins in substantive
law. While it is procedural law which outlines the methods and
processes by which one may sue another for the enforcement
or protection of his rights, it is substantive law which supplies
the legal basis for the existence of the right itself and the
corresponding legal prerogative to demarid its protection. In
CHAPTER I 33
GENERAL PRINCIPLES
other words, an inquiry i:o.to substantive law is imperative
because, as it has been previously said, such law is the very
foundation of procedural law.
Everyone who is conscious of the intimate relationship
between substantive law and remedial law knows that the
, causes of action in cjvil proceedings actual�y arise from the
'5traditional sources of a civil obligation, li�e law, contracts,
; quasi-contracts, deliJts and quasi-delicts?.For instance, a
,' creditor who is not paid by his debtor a just and lawful debt
despite a valid demand, may have a cause of action against
the latter for breach of a contract of loan. A victim of the
negligent act of another may have a cause of action against
the negligent defendant based on a quasi-delict. A person
victimized by robbery may have a cause of action against the
perpetrator of the crime based on the principle that a person
criminally liable is also civilly liable. A person whose money
or goods were delivered by mistake to another may have a
cause of action against the latter for the return of what was
received. The government may have a cause of action against
a taxpayer who refuses to pay the taxes which, under the law,
he is supposed to pay. Hence, every cause of action must be
predicated upon a provision of substantive law. So, if a person
wants to recover damages from another, he should anchor
h-i.�.. �l�im, for instance, upon Art. 1170 of the Civil Code of
. the Philippines which makes a' pe�soii, who cornmits fraud,
negligence or delay, liable for damages.
2. A cause of action involves a right of the plaintiff and
a violation of this right by the defendant. The rules refer to
it as an act or omission by which a party violates the rights
of another. Without a violation of this right, there can be no
cause of action and, without this cause of action, there would
be no right to invoke the rules of procedure and file a suit
against the defendant. This right to file a suit is called a right
of action. The right of action, which is procedural in character,
is the consequence of the violation of the right of the plaintiff.
Hence, the rule: There is no right of action where there is no
cduse of action.
 CIVIL Pfl:{:)CEDURE, VOLUME I
34
THE BAR LECTURES SERIES
Jurisprudence, however, as will be seen later within
the pages of this material, declares, in no uncertain terms,
that it is not enough that a party has a cause of action. The
rules require the plaintiff to sufficiently allege those ultimate
facts which, taken together, constitute one's cause of action,
In other words, the plaintiff,in his complaint,>should state a
cause bf action against,the defendant. Accordingly; the test
of the sufficiency of the averlll.ents in the pleading fa whether
the court can render a val�d judgment upon the., same. in
accordance with the prayer in the complaint, assuming-tJ:iat
the facts, as alleged, are true.
For a complaint to state a cause of action, the rules
emphasize, not the truth of the material allegations of the
complaint, but the sufficiency of such allegations. The truth, of
the allegations of the complaint, will be tested and determined
in the trial and not at the time of the filing of the complaint.
The failure of the complaint to state the elements of his cause
of action supplies a ground for the dismissal of the complaint,
even if the actual truth discloses that the plaintiff has a cause
of action against the defendant.
Take the example of a debtor who refuses to pay a just
and valid debt despite demand upon him by his creditor on
the due date of the obligation. Clearly, under the facts, the
creditor has a cause of action against the defendant. Because
he knows he has a cause of action, the creditor files a complaint
for a sum of money. The complaint alleges the following: That
the debtor borrowed from the creditor a specified amount of
money; That said debt was incurred five years before the filing
of the complaint; That despite the lapse of five years, the debt
remained unpaid. Query: May the complaint be dismissed
on the basis of its allegations? The answer should be in the
affirmative. The complaint may be dismissed, not because
of a lack of a cause of action, but because of the failure of
the complaint to state that cause of action. While it is true
that the creditor has a cause of action against the debtor, his
complaint miserably failed to state the elements of his cause
of action. First, the complaint failed to allege that the debt
has matured. Second, it failed to allege that on the maturity
CHAPTER! 35
GENERAL
"' PRINCIPLES
date or thereafter, the creditor demanded upon the debtor the
payment of the obligation, and; third, that despite· demand
no payment was tendered by the debtor. The absence of these
allegations resulted in the failure of the complaint to ,"sta.te a
cause of actio:µ."
3. · While a plaintiff may have a legitimate cause of
action, as 'a resttlt of a violation o/ hi�}ights, he is pre�lude�
by the Ru_les from instituting more than o:he suit for a:single
cause of action. He cannot, in other words, split a single .6aus�
of action into several.parts and make each part the sub3ect of
a separate complaint. He cannot, for instance; sue for a sum
of money in one complaint and sue separately for recovery of
interest arisingfrom the same cause of action that gave rise to
the collection suit. The reason for the rule is the judicial policy
of preventing the clogging of the court dockets which norrrially
arises from the filing of multiple of suits based on the sam
cause of action.
Following general procedural principles, if a debtor owt:
a creditor the unpaid amounts of P350,000 and P300,00
under separate promissory notes, the creditor has two causes
of action against the debtor. Hence, he may file two separat
actions against the debtor to collect the sums owed in his
favor. However, based on the same judicial policy of easing
the court dockets, a plaintiff, under certain circumstances, is
allowed to assert iii- one· complaint as many'causes · of" action
he may have against the same opposing party. Thus, if he so
desires, he may join the collection of the amounts of P350,000
and P300,000 in a single complaint. The joining of two causes
of action in one complaint is, in procedural jargon, termed
"joinder of causes of action."
B. Jurisdiction
1. If a cause of action exists, the plaintiff is now ready
to consider the preparation. of the complaint. But before
doing so, he proceeds to determine which court should tak
cognizance of the action. This involves an inquiry into th
laws onjurisdiction because the plaintiff is, as a fundamental
principle, obligated to file his complaint with the court vested
36 CML PR<DCEDURE, VOLUME I
THE B4R LECTURES SERIES
with jurisdiction over the subject matter ofthe action. Filing
the complaint with the wrong court is a ground for dismissal
of the complaint either upon proper motion by the adverse
party or upon the court's own motion (motu proprio). The
dismissal is inevitable because any judgment rendered bf a
coUJJt without jurisdiction 9ver the subject matter is a nullity.
.'·'f ::; {·< :·· i•. i.s.
? 2. The student oCprocedure nee·ds to pe reminded,
at this stage, that the rules on jurisdiction over the subject
matter are not found in lhe :Rules of Court, the principles
therein being merely procedural. Jurisdiction of�his type is a
matter ofsubstantive law, not ofmere procedure. Substantive
law, for instance, will tell the reader that jurisdiction over
civil actions and probate proceedings is determined by the
value of the personal property, estate or demand in relation
to the place where the action is to be instituted, within Metro
Manila or outside ofit; that in Metro Manila, a claim ofmore
than P400, 000 is within the jurisdiction ofthe Regional Trial
Court, and; that outside Metro Manila, a claim ofmore than
P300, 000 is within the jurisdiction, also ofthe Regional Trial
Court.
The law will also tell the student that jurisdiction over
real actions, i.e., those which involve title to, possession of, real
property, or any interest ,therein will be apportioned among
courts using the assessed value ofthe property as benchmark;
that in Metro Manila, where the real property subject of the
action has an assessed value ofmore than P50, 000, the action
is to be filed with the Regional Trial Court, and; that outside
of Metro Manila, if the real property has an assessed value
of more than P20, 000, the action should be instituted with
the Regional Trial Court. -A reading of substantive law will
also reveal that jurisdiction, likewise, speaks of delegated
jurisdiction and special jurisdiction and that there are actions
incapable of pecuniary estimation, i.e., where the demand is
one other than for a sum ofmoney.
C. Venue
1. The court with the appropriate jurisdiction having
been determined, the plaintiff goes on to determine the place
CHAPTER I 37
GENERAL PRINCIPLES
where the action is to be filed. In procedural terms, this place
is called the venue of the action. A complaint filed, even .in
the court with the appropriate jurisdiction, runs the risk of
being dismissed, on motion, ifcommenced in the wrong place.
However, unlike the laws on jurisdiction which authorize a
dismissal by tlie court on its own motion, the ru.les on venue
preclude a coi1rt from dismissing /::!of,,COmplaint mdtu p'ropr.io,
except when!· so authorized by a: 13pecial rule like the ici'ne
provided for .under the 1991 Revi.sed Rules on Summary
Procedure. Under the rules governing cases subject· to
summary procedure, the court may dismiss the case outright
on any ofthe grounds for the dismissal ofa civil action.
2. In determining the venue ofan ordinary civil . action,
.
the plaintiff will, inevitably, have to initially consider whether
or not the action to be filed is a real action or a personal action.
If the action is real (one that affects title to, possession of, or
any interest in real property), the action shall be commenced
and tried in the place where the real property involved or a
portion thereofis situated. Ifthe action is personal, the action
may be commenced and tried in the place where the plaintiff
resides or where the defendant resides, or in the case ofa non­
resident defendant, where he may be found, at the election of
the plaintiff.
3. Tl!,e plaintiff will . have. tq lqC>lr jn�.o any. possible
restrictive stipulations on venue. Ifthe parties have agreed in
writing on the exclusive venue prior to the filing ofthe action,
then the place stipulated is the only venue. This restrictive
type of stipulation precludes the filing of the action in some
other place. Where, however, the parties stipulated on a
place not intended _to be the exclusive venue for the action,
such stipulation is deemed merely permissive. A permissive
stipulation operates to provide an additional venue for the
action in addition to those set by the rules. Thus, where the
stipulation restricts the venue t,o a particular place as when it
provides, "only in Manila" or similar words, the venue of the
action is Manila, and no other place. On the other hand, �here
the stipulation provides "shall be filed in Manila," without
any restrictive words accompanying the same, Manila will
 38 CIVIL PR,9taEDURE, VOLUME I
THE BAR LECTURES SERIES
be deemed only an additional venue aside from the possible
venues provided for by the Rules.
D. Parties
1. · Not anyone could be a plaintiff. To be a plaintiff,
i one should be/ a real)party in inter(;lst. Th�re is now a ie.ed
'::•to ascertain �hethe:t7\)r not the plaintiff is a real party in
interest. A plaintiff, who claims to be one, ,must sufficiently
. allege ownership of a right violated by the adverse party.
In the words of the Rules, he must be one who ''stands to.be
benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit."
2. The plaintiff then will find himself expanding
his analysis by determining those who are to be impleaded
as defendants. This determination is vital because, as a
rule, a suit can be commenced only against one averred to
have violated the plaintiffs rights. In doing,so, he identifies
whether the defendant is an indispensable party or a mere
necessary party. The distinction is vital because where the
party is indispensable, his joinder is compulsory. Without an
indispensable party, no final determination of an action could
be had. On the contrary, the non-inclusion of a necessary
party does not prevent the court from proceeding with the
action although, without such party, no complete relief may
be accorded as to those already parties.
3. All the above determinations mean that the party
or his counsel sees to it that the rules on parties are complied
with. In short, as parts of his initial preparations for the case,
the plaintiff, preferably through a lawyer, meticulously pours
over the principles governing actions, right of action, causes of
action, jurisdiction, venue, and parties.
E. Prescription and conditions precedent
1. All the above principles having been considered,
plaintiff will be obligated to thoroughly and carefully verify
from the substantive laws whether or not there still exists a
sustainable cause of action by confronting himself with a very
CHAPTER!.. 39
GENERAL PRINCIPLES .·
f
qasic question: Is the action already barre.cl by the statute of
limitations? If it is, th�n,.the right of action has cea1:1e,d.. It.h,as
ceased because it has prescribed and prescription is one of the
well-recognized grounds for the dismissal of a complaint, the
same being a mode of extinguishment of a legal obligation. One
principle consistently1 applied by courts is: When it appears·
from the. pleadings or tp.e evigence on recorqjthat t�e action
has prescribed, the court is riia'.ndated by the Rules tt>,dismiss
the claim. When dismissed on the ground of prescription, the
refiling of the same action or claim is barred.
For example, under Art. 1144 of the Ci.vil Code of the
Philippines, actions upon a written contract, an obligation
created by law, or a judgment, prescribe after 10 years from
the time the cause of action accrues. The same Code provides
in Art. 1147 that actions for forcible entry, unlawful detainer
and defamation must be commenced within one year from the
accrual of the cause of action.
2. There are actions· which require the performance r
of conditions precedent. Compliance with such conditions is /
imperative and cannot be conveniently ignored. For instance,
there are certain cases where parties are required to avail of
barangay conciliation proceedings before invoking judicial tf
intervention. Also, parties need to undergo arbitration
pi:ocess.es before E?eeking j_udicial relief when so required
by contractual stipulations.. Compliance :wlth conditions r
precedent is not, however, sufficient. Compliance therewith
;must be alleged in the complaint for it to sufficiently state a
cause of action.
3. There are conditions precedent which actually
constitute elements of the plaintiffs cause of action. An action.
for collection of a sum of money, for example, must be preceded
by a demand to pay pursuant to Art. 1169 of the Civil Code
?f the Philippines. Under this provis�on, the debtor, as a rule,
incurs no delay unless there be a prior demand made by the r
creditor.
Pursuant to Sec. 2 of Rule 70 of the Rules of Court, an
action for unlawful detainer predicated �pon the non-payment
40 CIVIL PRQOEDURE, VOLUME I
THE BAR LECTURESSERIES
of rentals must, likewise, come only after a demand upon the
defendant to pay and vacate the premises is made, and su'ch
demand is not heeded by the latter.
Actions between members of the same family must be
preceded by attempts to have the controversy settled and
compromi�ed by jirtue of Art._,151 of,!the Family Cpde of;},
the Philippines: The Family Code decJares, in unequivocal
language, that no suit between· members of the same· family
shall prosper, uriless it should appear from the verified
complaint or petition that earnest efforts toward a compromise
have been made, and that such efforts have failed. If it. is
shown that no such efforts were made, the case, pursuant to
Art. 151 of the Family Code, "must be dismissed."
F. Preparation of the complaint
1. The preparation of a complaint requires recognition
and mastery of certain principles. Most prominent among
these is the rule that the complaint or any other pleading is
not designed to be a narration and an exposition of evidentiary
matters. Any pleading need only state the ultimate facts
which constitute. a party's claim or defense. Such facts are
to be alleged plainly, concisely, and directly in a methodical
and logical form. Because the rule requires alleging only
the ultimate facts, statements of evidentiary facts. are to be
omitted. Also to be omitted are conclusions of law. Conclusions
are to be made by the court while evidentiary matters are to
be presented in 'the trial.
2. There are situations where the suit is predicated
upon the alleged fraudulent acts of the defendant. If this be
so, the rule requires that the circumstances constituting fraud
or mistake be stated with particularity to enable the court to
determine the type of fraud committed by the defendant and
his subsequent liability, if there be any. Under the Civil Code,
depending on the kind of fraud committed, fraud may be a
cause for the annulment or rescission of a contract. It may also
be a ground for liability for damages alone. It may even be a
cause for an action for the reformation of an instrument. The
CHAFI'ERI 41
GENERAL PRINCIPLES
same rule mandating a partic1JJ3:i:- narration of cir�umstance1,
of fraud applies to averments-o·:6:misfake.Averments ofmalice,
intent, knowledge or other condition of the mind' of a pE3rson
may, however, be averred generally.
3. An action filed may, sometimes, be based . upon
a document, as when a ,collection sui,t, is ba�ed upon a
proniissory note executed :.by the defendant. Sm;_h. document
needs to be prop�rly pleaded in the cqmplaint' by se' tting
forth the substance of the-instrument in the coi;nplaint and
attaching the original or a copy thereof as an integral part of
the complaint.
The defending party may opt to deny the genuineness and
due execution of the promissory note. When - he does so, the
rule is established that a mere specific denial of such matters
would not be a sufficient denial. The rule requires the denial
to be under oath; otherwise, the defendant will be deemed to
have admitted the genuineness and due execution of the note.
It is also possible that a complaint is filed to recover
usurious interest. If the defending party desires to deny the
usurious interest, he must do so under oath because a mere
specific denial of such interest is not sufficient. The allegations
of usury in the complaint are deemed admitted if not denied
under oath.
4. The complaint must specify the' relief sought
although the rule allows the addition of a general prayer for
such other reliefs as the court may deem just or equitable.
Although part of the complaint, the relief or prayer is not
largely determinative of the cause of action. The nature of the
eause of action is primarily determined by the allegations in
the body of the complaint and not by the prayer alone.
5. The complaint must be dated. It must, likewise,
be signed by the party or by the counsel representing him.
Signing the complaint is mandatory because an unsigned
pleading produces no legal effect.
6. When it is the counsel who signs the pleading, his
--signature constitutes a certificate by him that he has read the
42 CML }i'Jl,QCEDURE, VOLUME I
THE BAR LECTURES SERIES
pleading; that to the best of his knowledge, information, and
belief, there are good grounds to support it; and that it" is not
interposed for delay.
7. The complaint must designate the address of the
party or his counsel.· This address should not be a post office
box.
:_
8. Should every complaint · or any other pleading be
?�-·
under oath, .verified or accon:ipanied by affidavit? The geI).era l
rule on the matter is that a pl�ading need not be ;verified, unless
specifically mandated by law or a particular rule. For (;lxample,
all pleadings und er the 1991 Rule on Summary Procedure
have to be verified. Petitions for certiorari, prohibition, and
mandamus must, likewise, be verified.
9. The complaint and other initiatory pleading must
contain or be accompanied by a certification against forum
shopping in which the plaintiff or principal party certifies,
among others, that he ha; not commenced any action or nled
any claim involving the same issues pending in, or already
resolved, in any other tribunal. Failure to comply with this
requirement is a ground for the dismissal of the complaint
upon motion and after hearing.
G. Provisional remedies
1. D epending upon the nature of the action, the
plaintiff may avail of any of the provisional remedies provided
for under the Rules like preliminary attachment, preliminary
injunction, receivership, replevin or support pendente lite.
Provisional remedies are not permanent or fiqal reliefs. They
.are, as the name indicates, merely temponuy reliefs that may
be availed of by a party in the meantime that the main action
is being litigat ed and there is yet no final judgment in the
case.
In an action for forcible entry, for instance, the plaintiff
may ask for a writ of preliminary mandatory injunction to
restore him in the possession of his land during the pendency
of the main case. In an action for collection of a sum of mone y,
the plaintiff may, a.t the commencement of the action, apply
01:W''.J.'E� I . 43
GENEMJ, PRINCIPLES
for the issuance of a writ of preliminary attachment of the
defendant's. properties where it is_ sh.own that the d�fen,.dant
is about to depart from the Philippines with the intention of
defrauding the plaintiff-creditor. This atta.chment is obtllined
to secure the future execution of the judgm�nt and avoid the
sad spectacle of a winning party lit,'1rally holding an em�.ty
pag b ecause tl).y e sheriff cannot find properties of the losing
·party to satisf _:the jufiginent. > ' l:i
In an action for support where the resolution thereof may
possibly come �hly after a p:totracted litigation, the plairitlff
may ask the court to order the defendant to give support' to
the plaintiff dwing the pendency of the action. This remedy is
known in: the Rules as support pendente lite. In an action for
damages against an electric company which wrongly cut off
the power supply to the plaintiff's factory, the latter may ask
the court to issue a writ of preliminary mandatory injunction
to restore power in the meantime that litigation on the main
action is in progress.
H. Filing of the complaint
1. After all those mentioned above have been considered
and duly complied with, the complaint shall now be filed. Th
filing of the complaint is the act of presenting the same before
the clerk of court.
....- .. 2. The ru1Ed:i:dhis jurisdictfoii'is that when an action
is filed, the filing must be accompanied by the payment of the
requisite docket and filing fees. The fees must be paid because,
as a rule, the court acquires jurisdiction over the c as e only
upon payment of the prescribed fees. Without payment, the
general rule is that the complaint is not considered filed.
Payment of the full amount of the docket fee is mandatory
and jurisdictional.
This rule was, however, relaxed by the Supreme Court in
some cases in which payment, of the fee within a reasonable
time, but not b eyond the prescriptive period, was permitted. If
the fees are not paid at the time of the filing, the court acquires
j¥risdiction only upon full payment of the fees within a
ieasonable time, as the court may grant, b arring prescription.
 44 CML P,R!W;EDUEE, VOLUME I
THE B1{R LECTURE$ SERIES
Even on appeal, the general . rule is that payment of
docket fees within the prescribed period·is mandatory for the
perfection of the appeal although there were instances when
the rule had been applied with'liberality. It is well-established
that, as a general rule, the payment of docket fees within the
required period i� m·andatory· for the perfection of an appeal. .
. 3. When the coinplaintls filed and th� prescribed fees
are paid, the action is deemed commenced. The court, then,
acquires jurisdiction over the ·person of the plaintiff and the
running of the prescriptive period for the action is interrupted.
I. Possible scenarios after the filing of the complaint
l. Dismissal of the complaint by the plaintiff
Sometimes, after the complain,t has been duly filed, the plaintiff
may, for reasons personal or otherwise, entertain doubts as to
the need to pursue the complaint filed against the defendant.
In this case, he may exerdse the option of dismissing his own
complaint. If the dismissal is made before the adverse party
has served an answer or a motion for summary judgment,
he may have his own complaint dismissed by the mere filing
of a notice of dismissal. A motion to dismiss is not required.
Upon such notice, the court shall issue an order confirming
the dismissal. The dismi;,sal by notice of dismissal is without
prejudice to its being refiled later, unless.otherwise stated in
the notice of dismissal or when the refiling is barred by, what
jurisprudence calls·, 'the two-dismissal' rule because the action
had already been previously dismissed twice by the plaintiff
in a competent court in an action based on or including the
same claim.
After service of the answer or a motion for summary
judgment, the plaintiff can no longer have his action dismissed
by mere notice.. The plaintiff now has to file a motion to dismiss
his complaint. The grant or denial of the motion to dismiss is
now a matter addressed to sound judicial discretion because
this type of dismissal is no longer a matter of right.
If the court allows the dismissal of the complaint, only the
complaint is dismissed. A counterclaim, already pleaded prior
CHAPTER!. 45
GENERAL PRIN'cIPLES
to the service upon the defendant of the motion for dismissal,
,,. is riot affected by the dismissal of the· complaint and is-without
prejudice to the right of the defendant · to prosecute his
counterclaim in the same or in a separate action. Adismissal,
under this rule, is deemed a dismissal without prejudice to the
�efiling of the complaint, unless otherwise stated in the order
. dismisial.
· bf . . ·�' ;k
. -f�?. ·: · · .. .-,. . . .1,;11,, i.
2. Dismis1al by the court-The court shall, on5ts owni
motion, dismiss the complaint if-it appears from the complaint:.,
or the pleadings that the court has no jurisdiction over· th$
subject matter, that there is another action pending betweei;i
the same parties for the same ciuse, or that the action is
barred by a prior judgment or by the statute limitations.
The court may, on its own motion, or· upon motion of
the adverse party, dismiss a complaint for causes. due to
the fault of the plaintiff. This happens when the plaintiff,
without justifiable cause, fails to appear on the date of the
presentation of his evidence in chief, to prosecute his action for
an unreasonable length of time, or to comply with the Rule1?
or any order of the court. This dismissal will have the effect
of an adjudication upon the merits, unless the court declares
ptherwise. This means that, as a rule, the complaint can no
,longer be refiled if the dismissal is anchored on any of the
_.,�,gr-oundsmentioned in-this.paragraph.
3. Amendment of the complaint-Instead of dismissing
his complaint, as explained . in the prece. ding number, it
frequently happens that the plaintiff finds the need to amend
his complaint. He may amend his complaint, for example, by
correcting a mistaken or an inadequate allegation therein.
Amendment of the pleading is a matter of right as long
as it is made before the other party has served a responsive
pleading. So, if the plaintiff desires to amend his complaint
before the defendant serves his answer, the amendment may
be done as a matter of right and the court has no discretion on
the matter. In such a case, the amendment has to be accepted
. by the court as a ministerial duty, the amendment being made
'as a matter of right. Amendment may even be done to correct
46 CIVIL PRPGEDURE, VOLUME I
THE B$ LECTURES SERIES
an error in jurisdiction or to effect a change in the cause of
action provided the amendment is still a matter of right. Note
that an amendment made as a matter of rig}J.t may, by the
terms of the Rules, be availed of only once.
It has often been asked whether or not the plaintiff may
ameµd his complaiµt as a ,watter of right;even after a motion
to dismiss has be�n serv�d. The logicalanswe:r,·is that, he
may do so and this is becl:luse a motion to dismiss is not a
responsive pleading. Hence, his right to amend his complaint
is not affected by the service of a motion to dismiss. After a
responsive pleading has been served, amendment must be
with leave of court. This means that after ari answer has been
served, an amendment may be done only with the approval of
the court. The amendment, in this case, is no longer a matter
of right and becomes a matter· of judicial discretion.
Although existing jurisprudence adopts a liberal policy on
amendments, such amendment may be refµsed if it appears to
the court that the amendment is intended for delay. Under
current rules, the fact that the amendment substantially
alters the cause of action is not a ground for the court to
refuse the amendment. It is an amendment with the intent
to delay the proceedings which would justifies the court in
refusing any motion for J.eave to amend the pleading. Also,
when the court lias no jurisdiction over the subject matter
of the complaint and the amendment is for the purpose of
conferring jurisdiction upon the court where the amendment
is no longer a matter of right, the amendment shall not be
allowed. Common reason suggests that, in this case, since
the court is without jurisdiction over the complaint, it has no
jurisdiction to act ori the motion for leave to amend.
An amendment may also arise by implication when
matters not raised in the pleadings are tried with the express
or implied consent of the parties, as when no objection is
interjected on the evidence offered on a matter not in issue
in the pleadings. When this occurs, the issues tried with the
consent of the· parties shall be treated as if they had been
raised in the pleadings. The pleadings may, then, be amended
· .CHAP.T,ER'l. 47
GENERAL'PR.INCIPLES
to conform to the evidence, although an actual amendment
- nee· d not be made because failure to do so will not affect the
r.esult of the trial on said issues.
II.Summons
.
· . L Upo11 the filing of;,the COIT,).plaint and t9,� pay�rnt
. .
..
,
of the requisite legal fees;: the cletk of court shall issue'.the
'corresponding summons to the defendant. For the defendant,
�l. ·, • •. . ' I
', '
the i�rvice of summons represents the usual beginning of
civil procedure. The summons orders the defendant to file an
· ·answer to the complaint and also, reminds him that, unless
ihe does so, the court may render· a· judgment against. him
by default and grant to the plaintiff the relief applied for.
Attached to the summons is a copy of the complaint.
The summons may be served by the sheriff, his deputy, or
other proper officer, or by any suitable person authorized by
the court issuing the summons. The summons and copy of the
complaint are to be served upon the defendant in person but,
if he cannot be served despite diligent efforts, summons may
be served by an alternative mode called substituted service.
,This consists in serving the summons at the residence of
; ;£he defendant or his regular place of bus.iness with a person
'i�{ualified to so receive the summons in accordance with the
,,,,::gples.-,Subject to certain exceptions,-the ..Jong-stan.cling rule
is .that summons by publication is not a recognized mode
of service for the purpose of acquiring jurisdiction over the
perscin of the defendant.
2. Recall that the filing of the complaint enables the
Cl!)µrt to acquire jurisdiction over the person of the plaintiff.
·c·-·This jurisdiction, however, does not extend to the person
of the defendant. Absent a voluntary appearance, it is the
service of summons upon the defendant which enables the
court to acquire jurisdiction over his person in those actions
traditionally called actions in' personam. The summons is a
coercive process which places the person, even of the unwilling
defendant, under the jurisdiction of the court. Service of
./
: ummons, likewise, represents a compliance with the rule on
, �
f • iri'otice -' an essential element of constitutional due process.
 48 CIVIL P�OCEDURE, VOLUME I
THE BAR LECTURES SERIES
3. The rules on summons mandate specific procedures
for service upon certain classes df defendants. When, for
instance, the defendant is a minor, insane or incompetent,
service of summons shall be made upon him personally and on
his legal guardian if he_has one, or, if none, upon his guardian
ad litem, or, in the case of a minor, upon his father or mother.
,:;, ii
If the defJndant a domestic c�tporatiot or partnershfp,
service may be made 'on certain specific persons only like the
president, managing 'partner, general manager, corporate
secretary, treasurer, or in-house counsel.
When the defendant is a prisoner confined in a jail or
institution, service shall be effected upon him ,(the prisoner)
by the officer having management of the jail or institution.
Such manager is deemed deputized as a special sheriff for
said purpose. The reader, therefore, has to go through all the
modes of service of summons clearly spelled out in the Rules.
4. One rule that stands out un�er the topic on
summons is the rule that service of summons is not the only
way by which the court acquires the requisite jurisdiction
over the person of the defendant in certain actions. Service
of summons may be dispensed with if the defendant makes
a voluntary appearance. Under the Rules, the defendant's
voluntary appearance in the action shall be equivalent to
service of summons. Also; in some special civil actions, an
order to comment served upon the respondent would enable
the court to acquire jurisdiction over his person.
A. Motion for bill of particulars
1. Although the summons directs the defenda1:1-t to
file an answer to the complaint, he is procedurally under no
obligation to outrightly file an answer since the rule allows
him certain procedural options.
For instance, if after reading the complaint, the defendant
finds that, because of the ambiguity in certain material
allegations in the complaint, he cannot possibly serve an
intelligent answer, he need not serve his answer unless and
until the alleged ambiguities are clarified by the plaintiff.
CHAPTER I· 49
GENERAL PRINCIPLES
. These ambiguities may b_e sought to be clarified through a
i•• "tlill.ofparticulars submitted by the plaintiff, upon order .ofthe
eourt and upon motion of the other.party. It must be clarified
that a motion for bill of particulars is not solely directedto•th.e
;. Jomplaint. Any other pleading m�y be the object of a iuotion
f;'-.:fqr bill of particulars.
·:�:'.[\:�i 2. '}Upon being iibtified 'bf the motion ;by the:.!clerk of
· �ourt, the court may either deny or grant.theJnotion outright,
·0r· allow,the parties the opportunity to be heard. The court,
therefore, is not obliged to conduct a hearing on the motion.
. 3. If the rriotion is granted, the party directed to submit
a bill of particulars must comply witli the order within 10 days
from notice. If the order is not obeyed, or in case compliance
�s ihsufficient, the court may order the striking out of the
· pleading or the portions thereof or make such other order as it
may deem just.
4. A motion for bill of particulars is not filed in order
to discover the evidence of the other party. For this purpose,
the movant should avail of the various modes of discovery
under the Rules of Court. The purpose of a motion for bill of
particulars is plainly to enable the movant to properly prepare
-pis responsive pleading.
t'.: .:9, , -· Motion to dismiss
1. After the plaintiff submits a bili of particulars which
clarifies the ambiguities in the complaint, the defendant
may now file his answer. If, however, fro_m the reading of the
complaint, a solid basis exists for the immediate dismissal of
the action, the defendant, instead of filing his· answer, may
avail of another option, i.e., to file a motion to dismiss. A
motion to dismiss need not be preceded by a motion for bill
of particulars because the defendant may, forthwith, file a
motion to dismiss upon service'•
of the summons upon him.
2. There are numerous grounds for a motion to dismiss
and these must be invoked by filing the requisite motion.
Normally, a court will wait for a party to file a motion to
dismiss even if the ground for dismissal is known to it. For
50 CIVIL ,P,i}OCE:J:?T.JlfE, VOLUME I
THE}BAR LECTURES SERIES
instance, unless the case is covered by the Rules on Summary
Procedure, the court will, and ought to,refrain from dismissing
a complaint on the ground of improper ve,nue even if the
venue is blatantly defective. Venue is a matter designed for
the convenience of the parties and if no party complains about
the venue, it is not for th� court to take, up the c�dgels for any.'
party. ' .. . J:ir
There are, however, grounds for dis�issal which the cou�t
will recognize ort its own motion. Lack'of jurisdiction over the
subject matter of the action, litis pendentia, res judicata, and
prescription are reasons for the court to effect a motu proprio
dismissal of the complaint, whenever any of these grounds
appears from the pleadings or the evidence on record.
3. The motion to dismiss is to be heard and after the
hearing, the court may dismiss the action or claim, deny the
motion, or order the amendment of the pleading. The court
is without authority to d'efer the motion b�sed on the reason
that the ground relied upon is not indubitable.
4. A motion to dismiss is an omnibus motion. The
latter motion is one which attacks a pleading. A motion to
dismiss is an omnibus motion since it attacks a pleading
by seeking its dismissal. As such, when it is filed, it shall
include all objections then available, and all objections not so.
' � . .. -·
.- .
included shall be deemed waived, except certain defenses like
. . •··
lack of jurisdiction over the subject matter of the action, litis
pendentia, res judicata, and prescription.
5. If no motion to dismiss has been filed, any of the
grounds for the dismissal provided in the rules governing a
motion to dismiss may lie pleaded as an affirmative defense in
the answer, and, in the discretion of the court, a preliminary
hearing may be had on the defense relied upon as if a timely
motion to dismiss had been filed.
6. The dismissal of the complaint through a motion to
dismiss does not necessarily preclude the refiling of the same.
For instance, where a complaint was dismissed on the ground
ofimproper venue, the plaintiff may refile the complaint, this
CHAPTER! 51
GENERAL PRINCIPLES
time, in the proper venue. Where the dismissal was ordered
by: the court for lack· of jurisdicticm over the subject matter,
the plaintiff may refile the same in the court with the proper
jurisdiction.
There are, however, certain grounds for dismissal of the
complaint which wi� bar the, refiling of the same claim. These
grourids are bar b:? a prior}judgment, statute ofiiimitations,
the �laim or demand has been extinguished, or the claim is
unenforceable under the provisions of the statute of frauds.
III. Answer
1. If there exists no ground for a motion to dismiss or
if the motion is rightfully denied, the defendant has to file
his answer. The answer is the responsive pleading to the
complaint. The answer gives notice to the plaintiff as to which
allegations in the complaint the defendant decides to conte,st
a:r;i,d put in issue. The answer may invoke both negative and
affirmative defenses.
2. A negative defense is the specific denial of th
material fact or facts alleged in the pleading of the claimant.
�ot every denial qualifies as a correct denial. The denial is
:required to be a specific denial. The answer must specifically
��nY the material averments in the other party's pleading
- . . ., . ' . "
H-ni�riuse·. material averirients not . specifically denied are
trtemed admitted. If the answer, for example, admits all the
rhaterial averments in the complaint, the answer is deemed to
have failed to tender an issue. Since there is no triable issue, a
trial is completely unnecessary. The claiming party may then
fifa a motion for a judgment on the pleadings and the court
.. ciay direct a judgment based on the pleadings already filed.
3. An affirmative defense essentially consists of a
hypothetical admission of the material allegations in the
pleading of the claimant but,,nevertheless, prevents or bars
recovery by him. For instance, a defendant may admit that
his negligence caused the injuries of the plaintiff but he can
1.1?'loriger be held liable because the plaintiff had previously
lieerdully compensated for all the .injuries he sustained.. The

52 CML PRO.,QEDURE,.VOLUME I
THE BM(LECTURES SERIES
defendant may also argue, in his defense, that the court has
no jurisdiction over the subject matter of the complaint or that­
the aGtion has already prescribed.
4. The filing of an answer is important. Failure of the
defending party to file an answer entitles the claiming party
to file a.. motion to declare hii:p. in default.
:..-:·
A. Default ·
1. When he is declared; in default, the defending pa�ty
loses his standing in court and is not allowed ! to take part
in the trial. After issuing an order of default, the court may
proceed to render judgment granting the claiming party such
relief as his complaint may warrant unless, in its discretion,
it requires the plaintiff to sub:rp.it evidence on his claim.
2. An important principle in this regard is the rule
that the court's declaration pf default should be preceded by a
motion to declare the said party in default together with proof
of such failure. The rule, therefore, precludes the court from
declaring the defending party in default on its own motion.
3. A party declared in default is said to have lost
his standing in court. Hence, he can no longer appear as a
party in the case. Althqugh barred from participating in
the proceedings, he is, however, still entitled to notices of
subsequent proceedings. He is also accorded a relief from the
order. from the order of default. He may,. at any time after
notice thereof and before judgment, file a motion under oath
to set aside the order of default. The motion must show that
his failure to answer was due to fraud, accident, mistake, or
excusable negligence, and that he has a meritorious defense.
The order of default may be set aside on such terms and
conditions as the judge may impose in the interest of justice.
4. It is, likewise, important to emphasize that a default
order will not be issued in certain cases like in an action for
annulment of marriage, declaration of nullity of marriage, or
legal separation, even if the defendant fails to answer. Instead,
the court shall order the prosecuting attorney to investigate
CHAPTER! 53
GENERAL PRINCIPLES
i'-�hether or not collusion exists between the parties and
�pr-eyent fabrication of evidence.
1
. 5. When the order of default ripens into a judgment by
t aefa.ult, there is a limit imposed by the Rules on the extent of
�.relief to be awarded in _the judgment. A judgment rendered
ed o be different, in
�(�ainst a party, in def�ult shall not exc� _ f
�Rmd from that .prayed.for nor award unhqmdated damages,,
Counterclaim, cross-claim, third-party complaint, reply
and intervention
1. It happens frequently enough that the defendant
pas his. own claim against the plaintiff. When the defendant
\ 'Mes his answer to the complaint, said answer may be coupled
irith a counterclaim, which is a pleading in its own right. A
�ounterclaim is a pleading which sets forth a claim a defendin
party may have against an opposing party. A counterclaim is
: . ';iJways directed against an opposing party, not against a co­
"i?arty.
The counterclaim may be one that is compulsory OJ
o_ne that is permissive. A compulsory counterclaim, which
defending party has at the time he files his answer, shall b,,
'¢ontained therein. A permissive counterclaim does not hav
;t·6(be raised in the same proce. edings because, by its nature, it
f--)Jbuld ·be·invoked as an independent· action: -The reader shou.l '
'*now the important differences between these two types ol
counterclaims. The differences are explained within the page�
ofthis work.
. 2. There are instances when two or more defendant!
, Ar� named in a complaint. It also happens that one defendani
has a claim against his co--defendant, · arising out of th<
transaction or occurrence which is the subject matter of th,
complaint. The claiming defendant may, then, in his answer
interpose a pleading against his co-defendant. This pleadini
is known as a cross--claim. This is a pleading containing th1
claim by one party against a co--party. Thus, if P files an actior
f._or a sum of money against A and B, A may file a cross-clairr
:.#gainst B, his co--defendant. In his cross-claim, he may asse:t·
54 CML PRQCEDURE, VOLUME I
THE BAR1'.,ECTURES SERIES
that it was actually B who benefitted from the proceeds of the
loan, A being merely an accommodation party. If A or B files
a claim against P, such claim is called a counterclaim, not a
cross-claim.
3. There are also cases when a defendant, named i_n the
complaint, has a cause of action against one who is not-� party
to the action. This cause of actibn is a claim against ti third
person either for contribution, ihdemnity, subr�gation,\)r any
other reli�f in respect of.the plaintiffs claim. The def�ndant
may bring in the third person into the suit and implead him as
a party by filing, with leave of court, a third-p<irty complaint
against him, thus, making him a party to the action.
4. Recall that the defendant files an answer to the
complaint. This answer is the responsive pleading to the
complaint. May the plaintiff, likewise, make his own response
to the answer? Under the Rules, the plaintiff can. Upon receipt
of the answer of the defendant, the plaintiff may respond to
the answer. This response 'is done throug4 a pleading called
a reply. The purpose of a reply is to deny or allege facts in
denial or avoidance of new matters alleged in the answer. A
reply is the plaintiffs responsive pleading to the answer of
the defendant. A reply, unlike the answer, is not a compulsory
pleading. While the failure to file an answer may lead to
a declaration of default, . the failure to file a reply does not
have the same consequence. The failure to file a reply will
not, likewise, result in the implied admission of the material
allegations in the answer because allegations of new matters
in the answer, even if not replied to, are deemed controverted
or denied.
5. Recall, also, that a person, not a party to the original
action, may be impleaded by an originafpartynnd brought into
the action through a pleading called a third-party complaint.
Now, what if a person, not a party to the complaint, wants to
be a party to the action, and no party is impleading him as a
defendant through a third-party complaint? How could this be
procedurally possible?
There are provisions in the Rules that adequately meet
the above situatio.n. This is made possible through a process
CHAPTER! 55.
GENERAL PRINCIPLES
called intervention. Under the Rules, 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 if he asserts a claim against one
or all of the parties. On the other hand, if he unites with the
defending party inlresisting a claim aga,fa1.st said party, he
may file an �nswerifo-intervention.
IV. Pre-trial
1. After the last pleading has been served and filed,
it is the duty of the plaintiff to promptly move ex parte that
the case be set for pre-trial. A pre-trial is mandatory and
failure to appear thereat by either party will result in advers
consequences for the absent party. In a pre-trial, the parties
shall, among others, consider the possibility of an amicabl
settlement or submission of the case to alternative modes of
dispute resolution. A pre-trial has several purposes. Hence,
the mere failure of the parties to effect a compromise is not a
ground for the court to terminate the pre-trial.
2. During the pre-trial stage and, generally, at any
time even before pre-trial or trial, the parties may obtain
information from each other through the employment of
devices, collectively knnwn as °discovery procedures.
3. The notice of pre-trial shall be served on counsel, or
on the party himself if such party has no counsel. The counsel
served with such notice is charged with the duty of notifying
his client.
4. Appearance in the pre-trial is the duty of both th
counsel and the parties. The unjustified failure of the plaintiff
to appear shall be cause for the dismissal of the action. Th
dismissal is with prejudice unless otherwise ordered by th
court. A similar failure of the defendant shall be a cause for
the court to allow the plaintiff to present his evidence ex parL.
The judgment of the court shall be based on the evidenc
presented by the plaintiff.
 56 CML PROCEDURE,VOLUMEI
THE BAR'LEC TURES SERIES
5. · At least three days before the date of the pre-trial,
the parties are required to file with the court and serve upon
each other their respective pre-trial briefs. Failure to file the
same shall be equivalent to failure to appear at the pre-trial.
6. After the pre-trial, the court shall issue a pre-trial
order. The contents of the order shail control the subsequent
cours(:) of the action,:unless the same is modified foil,reasons of
justice. . ,- ,, ,...
V. Trial
1. Should there be no amicable settlement or
compromise forged between the parties, the case will be set for
trial. During the trial, the parties present their evidence on
their claims and defenses. The plaintiff presents his evidence
first. After he rests his case, the defendant will present his
own evidence.
However, if the defendant believes that, upon the facts
and the law, the plaintiff is not entitled·to relief, he may,
instead of presenting his own evidence, move for the dismissal
of the case. He does so by way of a demurrer to evidence. If
the demurrer is denied, the defendant still has the right to
present his evidence. If the demurrer is granted but on appeal
the order of dismissal is reversed, the defendant is deemed to
have yvaived h1s right to present evidence.
2. A trial is not an indispensable stage of a civil action.
A judgment may be rendered even without a trial as when a
case is permanently dismissed as a consequence of a motion
to dismiss on certain grounds like prescription or bar by a
prior judgment. A judgment may also be rendered based on
the pleadings.. Here, no trial is required because the basis
of the decision would merely be the pleadings of the parties.
A judgment upon a compromise may also be rendered even
without a trial.
VI. Judgment
1. A judgment is rendered after the submission of the
evidence of t}J,e parties has been con,cluded. It is the decision
CHAPTER I 57
GENERA L PRI N CIPLES
of the court and represents its official determination of the
respective rights and obligations of the parties to the case.
2.. There is no oral judgment under the Rules. It has to
be in writing, personally and directly prepared by the judge,
stating clearly the facts and the law on which it is based,
signed l:>y him, and filed with the clerk of court:
3.''· Cent/&1 to the conce�t of agiidgment is the date. qf
entry of the judgment which, under current procedure, is also
the date of the finality of thejudgment The date of entry of the
judgment finds relevance when the judgment is to be executed
by motion. A final and executory judgment may be executed
on motion withiri five years from the date of its entry. The
date of the entry of judgment is also relevant when a litigant
files a petition for relief from judgment which is filed within
60 days after the petitioner learns of the judgment, final order
or other proceeding, and not more than six months after such
judgment or final order was entered.
VII. Post-judgment remedies
1. The judgment will inevitably declare that a party
wins and the other party loses the litigation. The judgment is
not the end for the losing party because he is afforded remedies
against the adverse judgment.
These remedies may be categorized into: (a) remedies
before the judgment becomes final and executory, and (b)
remedies after the judgment becomes final and executory.
2. Before the judgment becomes final and executory,
the aggrieved party may file: (a) a motion for reconsideration,
(b) a motion for new trial, or (c) an appeal. If the motion for
new trial or the motion for reconsideration is denied, the
aggrieved party may appeal from the judgment within the
period for appeal following the so-called "fresh period" rule.
3. After the judgment becomes final and executory, a
party may no longer appeal because the period for appeal has
already lapsed. The judgment has become final and executory
.and the prevailing party may, at any time within five years
 58 CMLPROQEDURE,VOLUMEI
THE BA'R.'f'.ECTURES SERIES
from its, date of entry, file a motion for the execution of the
judgment rendered in his favor. The losing party may, however,
avail of extraordinary remedies at this stage like: (a) a petition
for relief, (b) an action to annul the judgment, (c) certiorari, or
(d) even an attack against the judgment collaterally when the
nullity of the judgment is· plain and evident on its face.
VIII. Execution a'.rtd satisfaction of jud
i'.1.;;
gments
When all the remedies available to a party have been ·
exhausted and the case is finally decided, the judgment of the
court shall then be subject to execution. This is the remed
y
afforded by procedural rules for the enforcement of the
judgment. It is the fruit, as well as the end of the action.
Postscript: A separate second volume of this material will
discuss provisional remedies and special civil actions.
-oOo-
Chapter II
JURISDICTION AND VENUE
I. JURISDIC'r.ION
A. Jurisdiction in General
Jurisdiction; meaning
1. Jurisdiction has, traditionally, been referred to as
the power and authority of the court to hear, try and decide
a case (See Continental Micronesia, Inc. v. Basco, G.R. Nos.
178382-83; September 23, 2015; Mendez v. Shari'a District
Court, 5th Shari'a District, Cotabato City, G.R. No. 201614,
January 12, 2016; Barangay Mayamot v. Antipolo City, G.R.
No. 187349, August 17, 2016; Spouses Sanchez v. Vda. De
Aguilar, G.R. No. 228680, September 17, 2018).
The power of a court to hear and decide a controversy
"x x x includes the power to determine whether or not it has the
authority to hear and determine the controversy presented,
and the right to decide whether or not the statement of facts
that confer jurisdiction exists, as well as all other matters that
arise in the case legitimately before the court. Jurisdiction
imports the power and authority to declare the law, to expound
or to apply the laws x x x, to hear and determine issues of
law and of fact, the power to hear, determine, and pronounce
judgment on the issues before the court, and the power to
inquire into the facts, to apply the law, and to pronounce
the judgment'' (Salvador v. Patricia, Inc., G.R. No. ) 95834,
November 9, 2016; See also Bilag v. Ay-Ay, G.R. No. 189950,
April 24, 2017).
2. The traditional concept of jurisdiction has tradition­
ally been referred to as the authority of the court to hear,
try, and determine a case. This definition has, however, been
59
 61
CHAPTER II
60 CMLPROCEDURE,VOLUMEI JURISDICTION AND VENUE
THE/BAA LECTURES SERIES

(b) jurisdiction over the parties;

expanded to include the authority of the court to execute its
and
decisions. It was held that the power to control the execution (c) jurisdiction over the issues of the case;
(d) jurisdiction over .the res or thing
of the decision of the court is an essential aspect of jurisdiction involved in
and that the most important part of a litigation, whether civil
the litigation (Boston Equity Resource
s, Inc. v. Court of
or criminal, is the process of execution of decisions (Echegaray
Appeals, G.R. No. 173946, June 19, 2013).
v. Secretary of Justice, 301 · SCRA 96, 108). Quite recently, the
Court explained that the execut�on of a j;gdgment is inc.idental
B. Jurisdiction oJer the Subject MattJr
to the juHsdictiontalready acqtiired by the trial court (Mejia�
-:··•
'
·:.-'

Espinoza v. Carino, G.R. No. 193397, J�nuary 25, 2017). matter

Meaning of jurisdiction over the subject
Note: Comm�n usage tells us that, when a legal treatise the subject matter
As earlier mentioned, jurisdiction over
makes reference to the term "jurisdiction," witliout it specifying r court to hear the
is referred to as the power of a particula
the type or aspect of jurisdiction, the same should be construed term also refers to
type of case that is then before it. The
as referring to jurisdiction over the subject matter. class of cases to which
the jurisdiction of the court over the
a particular case belongs (Black's Law
Dictionary, 5th Ed.,
Development
767; citations omitted; De Pedro v. Romasan
Jurisdiction is not the power of the judge
2014). Following
It is the court, not the judge, which by law, is vested with Corporation, G.R. No. 194751, November 26, "actions
l actions" or
jurisdiction. The judge merely presides over the court. Thus, this definition, "real actions," "persona
to be considered as
jurisprudence holds that' jurisdiction is not the authority of incapable of pecuniary estimation" are
the judge but of the court. Jurisdiction does not attach to subject matters.
the court but to the judge. Hence, the continuity of a court
lack of jurisdiction
and the efficacy of its proceedings are not affected by the Duty of a court to dismiss an action for
death, resignation, or cessation from the service of the judge over the subject matter
presiding over it (See ABC Davao Auto Supply, Inc. v. Court of c questions
Appeals, G.R. No. 113296, January 16, 1998). l. When a complaint is filed in court, the basi
that 'ipso {dcto are to be immediately reso
lved by the court on
ter of the com plaint
..Jurisdiction does not refer to the decision itself its own are: (a) What is the subject mat
t have jurisdict ion over
filed before the court? (b) Does the cour
Jurisdiction is the authority of the court to decide a e questions inevitably
the said subject matter? Answering thes
case, and not the decision rendered therein (Republic v. "G" on jurisdiction.
requires looking into the applicable laws
Holdings, Inc., 475 SCRA 608, 619). The authority of the court "it is important
to decide a case, an� not tb.e decision rendered therein, is what Jurisprudence� therefore, teaches that
rmine whether or not
makes up jurisdiction (Lim v. Pacquing, 236 SCRA 211, 219; that a court or tribunal should first dete
ter presented before it,
citations omitted). it has jurisdiction over the subject mat
without jurisdiction
considering that any act that it performs
binding legal effect
As�ec�s of jurisdiction shall be null and void, and without any
2017).
In discussing jurisdiction, its several aspects need to be (Bilag v. Ay-Ay, G.R. No. 189950, April 24,
of the court
considered, namely: 2. Under the Rules of Court, it is the duty
ars that the court has
(a) jurisdiction over the subject matter; to dismiss an action whenever it appe
 62 CMLPROCEOVRE,VOLUMEI
THE BAR L�CTURES SERIES
no jurisdiction over the subject matter (Tagalog v. Lim Vda.
de Gonzalez, G.R. No. 201286, July 18, 2014; See also De
Pedro v. Romasan Development Corporation, G.R. No. 194751,
November 26, 2014).
The relevant provision of the Rules. of Court provides
that: "x x x .when it .3.ppears from the pleac;lings or the evidence
on record that the):ourt has no jurisdiction over the subject
matter, x x x the court shall dismiss the claim" (Sec. 1, Rule 9,
Rules of Court; Italics supplied). .
3. Even if the question of jurisdiction over the subject
matter was not raised by either of the parties, the courts
will have to first address such question before delving into
the procedural and substantive issues of the case. Courts are
bound to take notice of the limits of their authority and, even if
such question is neither raised by the pleadings or suggested
by counsel, they may recognize the want of jurisdiction and
act accordingly by staying pleadings, dismissing the action, or
otherwise noticing the defect, at any stage of the proceedings
(Bureau of Customs v. Devanadera, G.R. No. 193253,
September 8, 2015). Bar 1992
Effect of lack of jurisdiction over the subject matter
1. The general rule i$ that proceedings conducted or
decisions made by a court are legally void where there is �n
absence of jurisdiction over the subject matter. This is true
even where the court in good faith believes that the subject
matter is within its jurisdiction. A court devoid of jurisdiction
over the case cannot make a decision in favor of either party.
_ It can only dismiss the case for want of jurisdiction. A decision
rendered by a court devoid of jurisdiction may be the subject
of a collateral attack, if that jurisdictional defect appears on
the face of the record. And where lack of jurisdiction over the
subject matter appears on the face of the record, an appellate
court may, on its own initiative, dismiss the action (See Am
Jur 2d, §97, 1965 Ed.; citations by Am Jur omitted; see also
Tagalog v. Lim Vda. De Gonzalez, G.R. No. 201286, July 18,
2014; see also Bilag v. Ay-Ay, G.R. No. 189950, April 24, 2017).
CHAPTER II 63
JURISDICTION AND VENUE
2. The Court, in another case, clearly instructs:
"Indeed, a void judgment for lack ofjurisdiction is no
judgment at all. It cannot be the source of any right, nor
the creator of any obligation. All acts performed pursuant
to it and aHclaims emanating from it have no legal effect.
Hence, it can never become final and any writ of execution
ba'sed on it is void'' (Balibago Faith Baptist Church,,Jnc. u.
Faith in Christ Jesus Baptist Church, Inc.; G.R. 191527,
August 22, 2016; see also Aichi Forging Company of Asia,
Inc. v. Court of Tax Appedls, En Banc, G.R. No. 193625,
August 30, 2017).
Hence, if a complaint should have been filed with the
MTC, but the RTC took cognizance of the case erroneously
filed with it, the RTC seriously erred in proceeding with the
case. Note: When the court dismisses the complaint for lack of
jurisdiction over the subject matter, it is performing the only
authority that it has under the circumstances, i.e., to order
such dismissal. It would be error for that court to refer or
forward the case to another court with the proper jurisdiction.
Bar 2004
Jurisdiction versus the exercise of jurisdiction
Jurisdiction is not the same as the exercise of jurisdiction.
As distinguished from the exercise of jurisdiction, jurisdiction
is the authority to decide a case. Jurisdiction is the 'power·or
authority of the court (Arranza v. B.F. Homes, Inc., 333 SCRA
799, 812). The exercise of this power or authority is called
the exercise of jurisdiction and where there is jurisdiction
over the person and the subject matter, the decision on all
other questions arising in the case is but an exercise of that
jurisdiction (See Salvador v. Patricia, Inc., G.R. No. 195834,
November 9, 2016).
Thus, when a complaint for unlawful detainer is filed with
the Municipal Trial Court, the question as to why it was filed
with such court is a matter of jurisdiction. When the cou_rt acts
according to such jurisdiction, renders a decision on the case
and executes its decision, such acts constitute the exercise
of jurisdiction. Of course, implied from the above distinction

64 CML PROCEDURE, VOLUME I
THE B� 'LtCTURES SERIES
is the rule that a valid exercise of jurisdiction presupposes
that the court exercising jurisdiction has jurisdiction over the
nature of the action.
Error of jurisdiction versus error of judgment (Bar 1989)
1. An error of j�risdiction is <;me which occurs when the
court exercises a jurisdicti9n not cghferred upon it by lav/: It
may· also occur when the court or tribunal, although vested
with jurisdi�tion, acts in excess of its jurisdiction or with
grave abuse of discretion amount:Ing to lack ofjurisdiction
(See GSIS v. Oliza, 304 SCRA 421, 426; for further readings,
see also Cabrera v. Lapid, 510 SCRA 55, 66).
. .
Take for instance, a Municipal Trial Court which
assumed jurisdiction over a criminal information for murder,
tried the accused and subsequently rendered a judgment
thereon. Whether the judgment it rendered be one of acquittal
or conviction is of no consequence because, by assuming
jurisdiction over a murder case, the court committed an error
of jurisdiction. By law, it has no jurisdiction over the offense
of murder since the same is punishable by reclusion perpetua
by virtue of Art. 248 of the Revised Penal Code. Under Art. 27
of the Revised Penal Code, the penalty of reclusion perpetua
involves imprisonment for "twenty years and one day to forty
years." Under current law; a Municipal Trial Court has no
exclusive original jurisdiction over offenses punishable by
imprisonment exceeding six years (Sec. 32, B.P. l 29as amended
by R.A. 7691). Here, there is lack of jurisdiction because the
court or tribunal is not vested by law with authority or power
to take cognizance of the case.
Another instance when the .court _may be deemed to
have acted without jurisdiction is when, in the exercise of its
jurisdiction, it acted beyond the power conferred upon it, i.e.,
it acted in excess of the jurisdiction conferred upon it by law
(For further readings, see Vette Industrial Sales Company,
Inc. v. Cheng, 509 SCRA 532, 543). Take, a Regional Trial
Court vvhich assumed jurisdiction over an action for specific
performance, an action deemed to be one incapable of
. pecuniary estimation. In taking cognizance over the case, the
CHAPTER II 65
JURISDICTION AND VENUE
court is not deemed to have committed an error of jurisdiction.
It has, by law, jurisdiction over actions incapable of pecuniary
estimation (Sec. 19[1], B.P. 129 as amended by R.A. 7691).
However, if during the course of the proceedings, the court,
issued orders clearly contrary to the facts and the law, and
whimsically and capriciously refused to reconsider said
or'ders despite having the opportunity of. doing §O, the court is .
deemed to have been deprived of the jurisdiction it originally·
had since its acts are deemed to be tainted with a grave abuse
of discretion "am:ounting to lack of jurisdiction."
2. An error of judgment is not to be equated with an
error of jurisdiction. An error of judgment presupposes that
the court is vested with jurisdiction over the subject matter of
the action but, in the process of exercising that jurisdiction, it
committed mistakes in the appreciation of the facts and the
evidence leading to an erroneous judgment. These mistakes
are mere errors of judgment and not errors of jurisdiction
because the decision, although erroneous, was rendered by a
court vested with jurisdiction over the subject matter.
As long as the court acts within its jurisdiction, any
alleged errors committed in the exercise of its discretion
will amount to nothing more than mere errors of judgment
(Cabrera v. Lapid, 510 SCRA 55, 66; Heirs of Maura So v.
Obliosca, 542 SCRA 406, 417). It must also be noted that the
mere fact that the court misapplied the facts and the evidence
and made erroneous conclusions, does not necessarily give
rise to errors of jurisdiction. Such errors are merely errors of
judgment (See Miranda v. Sandiganbayan, G.R. Nos. 144760-
61, August 2, 2017). Errors of jurisdiction are correctible by
certiorari while errors of judgment-are correctible by appeal
(See Bank of the Philippine Islands v. Co, G.R. No. 171172,
November 9, 2015; see also, Salvador v. Patricia, Inc., G.R. No.
195834, November 9, 2016).
Test of jurisdiction
The test of jurisdiction is not whether or not the judgment
of the court is legally correct. The test is whether or not, under

66 CML PR(?,,C�DURE, VOLUME I
THE BAR'LECTURES SERIES
the law, it has the power or authority to take cognizance of
a particular subject matter. If the court has such authority,
then the court has jurisdiction even if its conclusions turn out
to be erroneous. The erroneous conclusion of the court would
be merely an error of judgment,_ not an error of jurisdiGtion.
As .the Court puts it:
i, .� '.
· "The test of jurisdiction is whether or not the c6urt
or tribunal had the power to enter on the inquiry, not
whether or not its conclusions, in the course thereof,
were correct, for the power to decide necessarily carries
with it the power to decide wrongly as well as rightly.
In a manner of speaking, the lack of the power to act at
all results in a judgment that is void; while the lack of
the power to render an erroneous decision results in a
judgment that is valid until set aside. That the decision
is erroneous does not divest the court or tribunal that
rendered it of the jurisdiction conferred by law to try the
case. Hence, if the court or tribunal has jurisdiction over
the civil action, whatever error may be attributed to it
simply one of judgment, not of jurisdiction; appeal, not
certiorari, lies to correct the error" (Saluador u. Patricia,
Inc., C.R. No. 195834, November 9, 2016).
An erroneous judgment is.not void
1. Where a court has jurisdiction, an erroneous decision
cannot be deemed void (20 Am Jur 2d §90, 1965), although the
error may be the subject of an appeal brought by the aggrieved
party.
A very early case clearly explained that, if the court has
jurisdiction, it is altogether immaterial how grossly irregular
or manifestly erroneous its proceedings may have been. The
judgment cannot be considered a nullity, and cannot, therefore,
be collaterally impeached. Such a judgment is binding on the
parties unless it is reversed or annulled in a direct proceeding
(Herrera u. Barretto, 25 Phil. 245, 256, citing Miller v. Rowan,
25 Ill., 344; For further readings, see Salvador v. Patricia,
Inc., G.R. No. 195834, November 9, 2016).
CHAPTER II 67
JURISDICTION AND VENUE
2. On the contrary, if there is a total want of jurisdiction
in a court, its proceedings are an absolute nullity, confer no
right and afford no protection but will be pronounced void
when collaterally attacked (Herrera u. Barretto, ibid., citing
Miller v. Rowan, ibid.). The judgment may be struck down at
any time, even on appeal; the only exception is when the party
raising the.issue fo barred by estoppel :(Suntay v. Gocolay,
470 SCRA. 627, 638; Bank of the Philippine Islands v. ALS
Management & Development Corporatfon, 427 SCRA 564,
575).
Jurisdiction and cause of action (Bar 1988)
1. Jurisdiction is the power or authority of a court
(Cuenca u. PCGG, 535 SCRA 102, 114). It is the authority
to hear and determine a cause - the right to act in a case
(Arranza v. B.F. Homes, Inc., 333 SCRA 799, 812).
2. A cause of action does not refer to the authority of
the court. A cause of action is the act or omission of a person
violative of the rights of others. Under Sec. 2, Rule 2 of the
Rules of Court, a cause of action "is the act or omission by
which a party violates a right of another."
How jurisdiction over the subject matter is conferred
Jurisdiction over the subject matter is conferred by
law (Spouses Sanchez v. Vda. De Aguilar, G.R. No. 228680,
September 17, 2018). The conferring law may be the
Constitution, or the statute organizing the court or tribunal,
or the special or general statute defining the jurisdiction of an
exis_ting court or tribunal. That law must be that which is in
force at the time of the commencement of the action (Salvador
v. Patricia, Inc., G.R. No. 195834, November 9, 2016; Ku v.
RCBC Securities, G.R. No. 219491, October 17, 2018). Hence, if
one wants to know the court with.jurisdiction over a complaint
for forcible entry, accion publiciana, or partition of real party,
one must look into the laws on jurisdiction, not the Rules of
Court or any procedural rule.

68 CMLP RQCED URE,VOLUMEI
THE B�'LECTURES SERIES
Consequences of the rule that jurisdiction is conferred by
law
1. Since jurisdiction over the subject matter is
conferred only by the Constitution or by law, its existence
does not depend upon the regularity of its exercise by the
court or tribunal (Salvador v. Patricia, Inc., C.R. No. 195834,
November 9, 2016). It i'J· not dependeht on tHe consent or
ob3ection or the �cts or ornissions of the parties. or anyone of
them (Aichi Forging Company of Asia, Inc., v. -Court of Tax
Appeals En Banc, C.R. No. 193625, August 30, 2017).
It cannot be (1) granted by the agreement of the parties;
(2) acquired, waived, enlarged, or diminished by any act or
omission of the parties; or (3) conferred by the acquiescence of
the courts (Republic v. Estipular, 336 SCRA 333,340; De Jesus
v. Garcia, 19 SCRA 554, 558; De la Rosa v. Roldan, 501 SCRA
34, 51; Buena/Lor v. Ramirez, C.R. No. 201607, February 15,
2017).
Because jurisdiction is conferred by law, it cannot be
conferred by the administrative policy of any court (Arranza
v. B.F. Homes, Inc., 333 SCRA 799, 812). Also, it cannot be
conferred by a court's unilateral assumption of jurisdiction
(Tolentino v. Social Security Commission, 138 SCRA 428,434).
Jurisdiction may not be changed by the mere agreement of the
parties (Atlas Developer & Steel Industries, ·Inc. v. Sarmiento
Enterprises, Inc., 184 SCRA 153,155). It cannot be the subject
matter of a contract (Luna v. Carandang, 26 SCRA 306, 309).
Bar 1992
2. A case of more recent vintage teaches: "x x x
jurisdiction cannot be presumed or implied, but mu::it. appear
clearly from the law or it will not be held to exist, but it may
be conferred on a court or tribunal by necessary implication
as well as by express terms. It cannot be conferred by the
agreement of the parties; or by the court's acquiescence; or
by the erroneous belief of the court that it had jurisdiction;
or by the waiver of objections; or by the silence of the parties"
(Salvador u. Patricia, Inc., C.R. No. 195834, November 9,
2016; Italics supplied).
CHAPTER II 69
JURI S DI CTION AND VENUE
The law applicable to the case
the
Jurisdiction being a matter of substantive law,
at the time ofth e
established rule is that the statute in force the
dicti on of
commencement of the action determines the juris
No. 187349,
court (Barangay Mayamot v. Antipolo City, C.R.
August 17, 2016; Salvador v. Patricia, Inc., C.R. No. 195834,
y, No. 219491,
November 9, 2016; Ku v. RCBC Sec· · rities, C.R. ·· ·
October 17, 2018).
How jurisdiction over the subject matter is determined (Bar
2014; 2015)
1. While jurisdiction is conferred by law, jurisdiction is
determined by the allegations in the complaint, as well as by
the character of the relief sought (See Geronimo v. Calderon,
C.R. No. 201781, December 10, 2014; Cabling v. Dangcalan,
C.R. No. 187696, June 15, 2016; French v. Court of Appeals,
G.R. No. 220057, July 12, 2017; Spouses Sanchez v. Vda. De
Aguilar, G.R. No. 228680, September 17, 2018).
The allegations in the complaint determine both . the
nature of the action and the jurisdiction of the court (Balibago
Faith Baptist Church, Inc. v. Faith in Christ Jesus Baptist
Church, Inc., C.R. No. 191527, August 22, 2016; French v.
Court of Appeals, C.R. No. 220057, July 12, 2017; see also
Hidalgo v. Velasco, G.R. No. 202217, April 25, 2018).
For the purpose of determining jurisdiction, the trial
court must interpret and apply the law on jurisdiction in
relation to the averments or allegations of ultimate facts in
the complaint regardless of whether or not the plaintiff is
entitled to recover all or some of the claims or reliefs sought
therein (Continental Micronesia, Inc. - v. Basso, C.R. Nos.
178382-83, September 23, 2015; Salvador v. Patricia, Inc.,
C.R. No. 195834, November 9, 2016; See also North Greenhills
Association, Inc. v. Morales, G.R. No. 222821, August 9, 2017).
2. Since it is axiomatic that what determiI).es the
nature of the action and which court has jurisdiction over
said action is determined by the allegations in the complaint
. and the character of the relief sought, in ascertaining, for
 70 CMLPR9QEDURE,VOLUMEI
THE B� LECTURES SERIES
instance, whether an action is one for forcible entry, only
such ave�ments of the complaint and the relief sought are to
be exam�ned. If the requisite elements of forcible entry are
averred m the complaint, then the action is one for forcible
entry within the jurisdiction of the Municipal Trial Court
_
even if the evidence during the proceedings i dicates that it is
·: some other c3:use of action.
This mean that ·in determining whether or not a court
·has jurisdiction over the complaint before it,.the court should
not inquire into the truth of such allegations. What the
court should do is to consider the material allegations in the
complaint in relation to the relief sought. The truth shall, later
on, be determined during the trial. Hence, if the complaint
avers that the defendant owes the plaintiff an amount within
the jurisdiction of the Regional Trial Court, then it is that
court that has jurisdiction over the subject matter based on
the allegations of the complaint, even if later on it is proven
that the debt is way below the jurisdiction of the Regional
Trial Court.
Caption of the case is not controlling
1. The cause of action in a complaint is not what the
title or designation of the complaint states, but what the
allegations in the body of the com.plaint define and describe.
The designation or caption is not controlling for it is not even
an indispensable part of the complaint (De la Cruz u. Court
of Appeals, 510 SCRA 103, 117; see also Barangay Mayamot
u. 1-ntipolo City, G.R. No. 187349, August 17, 2016; Balibago
_ the complaint and the character of the relief sought are
Faith Baptist Church, Inc. u. Faith in Christ Jesus Baptist
Church, Inc., G:R. No.- 191527, August 22, 2016). Jurisdiction
does not depend on the complaint's caption. Hence, a complaint
merely bearing the caption, "recovery of possession," is actually
an unlawful detainer case if it contains the jurisdictional facts
of said action (Spouses Erorita u. Spouses Dumlao, G.R. No.
195477, January 25, 2016).
Even an alleged action for a sum of money may also
actually· be ari action for unlawful detainer based· on the
CHAPTER II 71
JURISDICTION AND VENUE
material allegations of the complaint. In one case, a complaint
was titled, "Collection of a Sum of Money with Damages" filed
with the Regional Trial Court. The complaint arose out of the
failure of the defendant to pay the rentals in arrears, amounting
to more than P900,000, on certain leased commercial spaces.
A reading of the complaint showed that the demand inade
upon the '..defendant was for the)atter to pay and vac!lte the
premises. The type of demand made was held to make out a ·
cause of action for unlawful detainer, not a mere collection of
a sum of money (Barrazona u. RTC of Baguio, 486 SCRA 555,
561). The reason for the ruling is not difficult to comprehend
because whether or not the defendant pays, the complaint
sought for an order to have said defendant vacate the property.
Hence, the complaint was truly one for ejectment. The result
would have been different had the demand been, "to pay or
vacate." In this type of demand, the defendant need not vacate
if he is able to pay the amount owed to the plaintiff. Bar 2011
2. In summary of the above-mentioned principles, the
Supreme Court, in one case clearly explains:
"[J]urisdiction 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 plaintiffs 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 therein. The averments in
the ones to .be consulted. Once vested by the allegations
in the complaint, jurisdiction also remains vested
irrespective of whether or not the plaintiff is entitled to
recover upon all or some of the claims asserted therein.
x x x" (Medical Plaza Makati Condominium v. Cullen,
G.R. No. 181416, November 11, 2013; see also Unduran
v. Aberasturi, G.R. No. 181284, October 20, 2015; North
Greenhills Association, Inc. u. Morales, G.R. No. 222821,
August 9, 2017).

72 CIVIL PRf),GEDURE, VOLUME I
THE BAR LECTURES SERIES
The defenses and the evidence do not determine jurisdic­
tion
1. Jurisdiction cannot be made to depend upon the
defenses set up in the answer, in a motion to dismiss or in a
motion for reconsideration (Balibago Faith Baptist Church,
Inc. v. Faith in 9]irist Jesus Bq,ptist ClJ:urch, Inc., G.P,. No.
191527, August 22; 2016). This has to be:so, for otherwise, the
ends of justice wo�ld be frustrated by m�king the sufficiency of
this kind of action dependent upon the defendant in all cases
(Tomas Claudio Memorial College, Inc. v. Court of Appeals,
316 SCRA 502, 508). The defendant may easily delay a case by
raising other issues, then, claim lack of jurisdiction (Spouses
Erorita v. Spouses Dumlao, G.R. No. 195477, January 25,
2016; see also Balibago Faith Baptist Church, Inc. v. Faith in
Christ Jesus Baptist Church, Inc., G.R. No. 191527, August
22, 2016).
The settled rule is that jurisdiction is based on the
allegations in the initiatory pleading and· the defenses in
the answer are deemed irrelevant and immaterial in its
determination (De la Cruz v. Court of Appeals, 510 SCRA
103, 120); otherwise, the question of jurisdiction would almost
entirely depend upon the defendant (For related readings, see
City of Dumaguete v. Philippine Ports Authority, 656 SCRA
102;. Cadimas v. Carrion, 567 SCRA 101; Fort Bonifacio
Development Corp.. v. Domingo, 580 SCRA 397).
. .
2. Becausejurisdiction is determined by the allegations
in the complaint and is not affected by the pleas or theories
set up by the defendant in his motion to dismiss or answer
(Javellana v. Presiding Judge, RTC Branch 30, 443 SCRA
497, 506), the Municipal Trial Court does not lose its
jurisdiction over, an ejectment case by the mere allegation
that the defendant asserts ownership over the litigated
property (Tecson v. Gutierrez, 452 SCRA 781, 787; Miranda
v. Bera, 435 SCRA 532, 540). In the same vein, the MTC
does not automatically lose its exclusive original jurisdiction
over ejectment cases by the mere allegations of a tenancy
relationship (Vda. De Victoria v. Court of Appeals, 449 SCRA
319, 334; see lVlagpili v. De Jesus, 474 SCRA 366, 372).
CHAPTER II 73
JURISDICTION AND VENUE
However, while the Municipal Trial Court does not lose
its jurisdiction over an ejectment case by the simple expedient
of a party raising as a defense therein the alleged existence of.a
tenancy relationship between the parties, yet if, after hearing,
tenancy had in fact been shown to be the real issue, the court
should dismiss the case for lack of jurisdiction (See Hilado v.
Chavez, 438 SCRA 623, 641;£/42). Inignaciov. CFipfBulacan,
42 SCRA 89, 95, it .J.ras held::''that while the allegations in the
complaint make out a case fQr forcible entry, where tenancy is
averred by way of defense and is proved to be the real issue,
the case should be dismissed for lack of jurisdiction as the
case should properly be filed with the then Court of Agrarian
Relations (now DARAB)" (De la. Cruz v. Court of Appeals, 510
SCRA 103, 116).
In Ignacio and other ejectment cases (Salandanan v.
Tizon, 62 SCRA 388; Concepcion v. CFI of Bulacan, 119 SCRA
222), where tenancy was the defense, the court went beyond
the allegations in the complaint in determining jurisdiction in
resolving a motion to dismiss based on lack of jurisdiction over
the subject matter and required the presentation of evidence
to prove or disprove the defense of tenancy. After finding the
real issue to be tenancy, the cases were dismissed for lack of
jurisdiction.
It must be borne in mind, however, th:at the, Municipal
Trial Court does not automatically lose its jurisdiction over
ejectment cases by the mere allegation of the defense of tenancy
relationship between the parties (Onquit v. Binamira-Parcia,
297 SCRA 354, 362; Vda. De Victoria v. Court of Appeals,
supra). The court continues to have the· authority to hear
and evaluate the evidence, precisely to determine· whether
or not it has jurisdiction, and, if, after hearing, tenancy is
shown to exist, it shall dismiss the case for lack of jurisdiction
(Velasquez v. Cruz, G.R. No. 191479, September 21, 2015). The
rule, still, is that jurisdiction of the court is determined by the
allegations in the complaint.
 74 CIVIL PROCEDURE, VOLUME I
THE BAR i'ECTURES SERIES
The amount awarded does not determine jurisdiction (Bar
2015)
1. Since it is a basic rule that jurisdiction over the
subject matter is determined by the allegations in the com-
. plaint (Gustilo v. Gustilo III, 659 SCRA 619, 622), jurisdiction
does not dep�nd on the amgunt ultimately substaritiated and
awarded by the trial court (Dionisio\v. Sison Puerto, 60 SCRA
471, 477). ... .. .. . .
2. Thus, where a complaint'seeking for the paym�nt
of Pl million is filed with the Regional Trial Court, but after
considering the evidence presented, the court rendered a
judgment for orily P300,000, an amount within the jurisdiction
of the Municipal Trial Court if originally filed, the Regional
Trial Court did not lose jurisdiction over the action. It,
therefore, has the authority to render a judgment for P300,000.
It is submitted, however, that the above rule does not
apply in the reverse. Where a complaint for the recovery of
a loan of P300,000 is filed with the Municipal Trial Court,
but after consideration of the evidence, it is shown that the
amount recoverable is Pl million, an amount within the
jurisdiction of the Regional Trial Court if originally filed, the
Municipal Trial Court cannot render judgment for Pl million
for lack of jurisdiction.
Doctrine of primary jurisdiction (primary administrative
jurisdiction)
1. The doctrine of primary jurisdiction tells us that the
courts cannot, and will not, resolve a controversy involving a
question which is within t�e juris_diction of an administrative
tribunal, especially where the question demands the exercise
of sound administrative discretion requiring the special
knowledge, experience and services of the administrative
tribunal to determine technical and intricate matters of fact
(International Service for the Acquisition of Agri-Biotech
Applications, Inc. v. Greenpeace Southeast Asia [Philippines},
C.R. No. 209271, December 8, 2015; see Land Bank of the
Philippines v. Dalauta, G.R. No. 190004, August 8, 2017).
CHAPTER II 75
JURISDICTION AND VENUE
2. The objective of the doctrine of primary jurisdiction
is to guide the court in determining whether it should refrain
from exercising its jurisdiction until after an administrative
agency has determined some question or some aspect of
some question arising in the proceeding before the court (For
additional readings, see Unduran v. Aberastilri, · G.R. No.
1'81284, April 1;8, 201
3. Examples:
(a) Iri agrarian reform cases, primary jurisdiction
is vested in the Department of Agrarian Reform (bAR)
more specifically, in the Department of Agrarian Reform
Adjudicatofy Board (DARAB), as provided for in Sec. 50
of R.A. 6657 (Land Bank of the Philippines v. Dalauta,
G.R. No. 190004, August 8, 2017).
(b) Under Commonwealth Act No. 327, as amended
by Sec. 26 of P.D. 1445, it is the Commission on Audit
which has primary jurisdiction over money claims against
government agencies and instrumentalities. This power
includes the settlement of all debts and claims of any
sort due from or owing to the government or any of its
subdivisions, agencies and instrumentalities. Thus, it is
the Commission on Audit, not the Regional Trial Court,
which has primaryjurisdiction to pass upon money claims
against :;1local government unit (The Province of Aklan v.
Jody King Construction and Development Corporation,·
G.R. Nos. 197592 and 202623, November 27, 2013).
(c) The MWSS is in the best position to evaluate and
decide which bid for a waterworks project was compatible
with its development plan (Concerned Officials of the
MWSS v. Vasquez, 240.SCRA 502);
(d) The Civil Service Commission is better equipped
in handling cases involving the employment status of
employees as it is within its field of expertise (Paloma v.
Mora, 470 SCRA 711);
(e) The determination of factual issues in labor
situations is vested in the Mediator-Arbiter and the
Department of Labor and Employment. Pursuant to
76 CML P RPCEDURE,VOLUMEI
THE B� LECTURES SERIES
the doctrine . of primary jurisdiction, the Court should
refrain from resolving such controversies unless the case
falls under recognized and well-established exceptions.
The doctrine of primary jurisdiction does not warrant a
court to arrogate unto himself the authority to resolve as
controversy the jurisdiction over which is. initially1odged
witl, i an administrative body of special coinpetenc� (Coca­
Cola Bottlers. Philippines; Inc. v. flocos and Technical
Employees Union [IPTEUJ, G.R. No. 193798, September
9, 2015). . where a remedy before an administrative body is provided
(f) Disputes regarding the validity of circulars
implementing the GSIS law should first be brought
to the GSIS Board, and not to the courts, as required
by law. Under the doctrine of primary jurisdiction,
courts are precluded from resolving a controversy over
which jurisdiction has initially been lodged with an
administrative body of special competence (Garcia v.
Tolentino, G.R. No. 153810, August 121 2015).
Doctrine of exhaustion of administrative remedies and
doctrine of primary jurisdiction
The doctrine of exhaustion of administrative remedies
may be considere.d corollary to the doctrine of primacy
jurisdiction or VIce versa. It would be more accurate to state that
the doctrines c�mpiement each other. The distlnction lies on·
what the doctrines give more emphasis.
The doctrine of primary jurisdictibn emphasizes the
initial conferment of jurisdiction over a particular matter to an
administrative body before a court could exercise jurisdiction
over the same. The doctrine is based on the theory that there
are some controversies which demand the exercise of sound
administrative discretion requiring the special knowledge,
experience and services of the administrative tribunal to
determine technical and intricate matters of fact, before
passing on the controversy to the courts for adjudication. For
example, in agrarian reform cases, primary jurisdiction is
vested in the DAR, more specifically in the DARAB as provided
for in Section 50 of R.A. No. 6657. The provision gives the
CHAPTER II 77
JURISDI CTIONAND VENUE
DARAB quasi-judicial powers to determine and adjudicate
land reform matters.
The doctrine of exhaustion of administrative remedies,
although may also involve administrative jurisdiction over' a
specific matter, gives emphasis to procedural requirements
which a party should follow before seeking judicial relief.
As jurisprudence '.�eclares: "x x x [U]ri.cler the doctriiie of.
exhaustion of administrative remedies, {t is mandated 'that
.,
1
by statute, relief must be sought by exhausting this remedy
prior to bringing the action in court in order to give that
administrative body every opportunity to decide a matter
that comes within its jurisdiction" (Power Sector Assets and
Liabilities Management Corporation v. Commissioner of
Internal Revenue, G.R. No. 198146, August 8i 2017).
Exceptions to the doctrine of primary jurisdiction
The doctrine of exhaustion of administrative remedies
and the corollary doctrine of primary jurisdiction, which are
based on sound public policy and practical considerations,
are not inflexible rules. There are many accepted exceptions,
such as: (a) where there is estoppel on ·the part of the
party invoking the doctrine; (b) where the challenged
administrative act is patently illegal, amounting to lack of
jurisdiction; (c) where there is unreasonable delay or �fflci�l.
inaction that will irretrievably prejudice the complainant;
(d) where the amount involved is relatively small so as to
make the rule impractical and oppressive; (e) where the
question involved is purely legal and will ultimately have
to be decided by the courts of justice; (f) where judicial
intervention is urgent; (g) when its application may cause
great and irreparable damage; (h) where the controverted
acts violate due process; (i) when the issue of non-exhaustion
of administrative remedies has been rendered moot; G)
when there is no other plain, speedy and adequate remedy;
(k) when strong public interest is involved; and (]) in quo
warranto proceedings. x x x" (International Service for the
Acquisition of Agri-Biotech Applications, Inc. v.. Greenpeace
 78 CIVIL PROCEDURE, VOLUME I
THE BfR' LECTURES SERIES
Southeast Asia [Philippines], G.R. No. 209271, December 8,
2015; See also The Province of Aklan v. Jody King Construction
and Development Corporation, G.R. Nos. 197592 and 202623,
November 27, 2013).
Doctrine of adherence · of jurisdiction (continuity of
jurisdiction)
1. The doctrine of adherence of jurisdlttion means
that once jurisdiction ha1, attached, it cannot l;>e ousted by
subsequent happenings or events, although <iJf a character
which would have prevented jurisdiction from attaching in the
first instance. The court, once jurisdiction has been acquired,
retains that jurisdiction until it finally disposes of the case
(Bantua v. Mercader, 350 SCRA 86, 96; Aruego, Jr. v. Court
of Appeals, 254 SCRA 711, 719-720; San Miguel Corporation
u. Sandiganbayan, 340 SCRA 289, 321; Padlan u. Dinglasan,
694 SCRA 91, 98-99, March 20, 2013). Otherwise stated, once
jurisdiction attaches, it shall not be removed from the court
until the termination of the case (Ambassador Hotel, Inc. v.
Social Security System, G.R. No. 194137, June 21, 2017).
2. Because of the doctrine, if, in an action for ejectment,
the defendant voluntarily surrenders the premises subject of
the action to the plaintiff, the surrender of the property does
not divest the court of ju.risdiction (Pamintuan v. Tiglao, 53
Phil. 1, 4).
Also, if the court has jurisdiction to act on a motion at
the time it was filed, that jurisdiction to resolve the motion
continues until the matter is resolved and is not lost by the
subsequent filing of a notice of appeal (Asmala u. COMELEC,
289 SCRA 746, 752).
3. It was ruled that the jurisdiction which the court
had at the time of the filing of the complaint is not lost by
the mere fact that the respondent judge ceased to be in office
during the pendency of the case (Victory Liner v. Belosillo, 425
SCRA 79, 89).
4. In another case, it was held that the trial court did
not lose jurisdiction over the case involving a public official
CHAPTER II 79
JURISDICTION AND VENUE
by the mere fact that said official ceased to be in office during
the pendency of the case (Flores v. Sumaljag, 290 SCRA 568,
579-580). Likewise, the fact that the complainant resigned
after the filing of the administrative complaint did not affect
the case because jurisdiction had already been acquired over
the case upon the filing of the complaint. Jurisdiction, once
acquired, is not lost by the resignat,ion of the coIII'plaini:n.g
party; lt contiriues until the· case iE!•'terminated (Basilio 'v.
Dinio, 634 SCRA 516, 523).
Also, the retirement from the service of a public official
during the pendency of an administrative case against him,
does not render the case moot and academic. Once jurisdiction
attaches, "it cannot be defeated by the acts of the respondent,
save only when death intervenes and · the action does not
survive" (Office of the Ombudsman v. Dechavez, G.R. No.
176702, November 13, 2013).
5. Even the finality of the judgment does not totally
deprive the court of jurisdiction over the case. What the court
loses is the power to amend, modify, or alter the judgment.
Even after the judgment has become final, the court retains
jurisdiction to enforce and execute it (Echegaray v. Secretary
of Justice, 301 SCRA 96, 106; Republic v. Atlas Farms, 345
SCRA 296, 300).
6. In People v. Cawaling, ,293 SCRA 267, 288, the Court
had the occasion to declare:
"x x x Once the court acquires jurisdiction, it may
not be ousted from the case by any subsequent events,
su,ch as a new legislation placing such proceedings under
the jurisdiction of another tribl.!nal. The only recognized
exceptions to the rule x x x arise when: (1) there is an
express provision in the statute, or (2) the statute is
clearly intended to apply to actions pending before its
enactment."
Doctrine of ancillary (incidental) jurisdiction
1. This power refers to the authority of an office or
tribunal to do all things necessary for the. administration
 80 CML PR0,9EDURE, VOLUME I
THE BAR, LECTURES SERIES
of justice within the scope of its jurisdiction, and for the
enforcement of its judgment and mandate (University of the
Immaculate Conception v. Office of the Secretary of Labor and
Employment, G.R. Nos. 178085-178086, September 14, 2015).
In other words, ancillary jurisdiction refers to the power
of every· court to adopt such means and perform such acts
necessary to carry its jurisdiction into effect. The tenor of Sec.
'·6, Rule 135 of the Rules of Court is explicit: >
"x x x When by law jurisdiction is conferred on a court
or judicial officer, all auxiliary writs, processes.and other
means necessary to carry it into effect may be employed by
such court or officer; and if the procedure to be followed in
the exercise of such jurisdiction is not specifically pointed
out by law or by these rules, any suitable process or mode
of proceeding may be adopted which appears conformable
to the spirit of said law or rules."
2. Corollary to the ,above provision is Sec. 5 of Rule
135 which enumerates the inherent powers of a court, among
which are: "x x x To compel obedience to its judgments, orders
and processes x x x " (Sec. 5[c], Rule 135, Rules of Court); and
"x x x To amend and control its process and orders so as to
make them conformable to law and justice" (Sec. 5[g], Rule
135, Rules of Court).
, Doctrine of judicial stability
1. The doctrine of judicial stability is one which
precludes a court from interfering by injunction with the
regular orders of a co-equal court. "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 o�er its judgment, to the exclusion of all other
coordinate courts, for its execution and over all its incidents,
and to control, in furtherance of justice, the conduct of
ministerial officers acting in connection with that judgment"
(Tan v. Cinco, G.R. No. 213054, June 15, 2016; see also Del
Rosario v. Ocampo-Ferrer, G.R. No. 215348, June 20, 2016).
2. If a court violates the law or the rules on the issuance
of a writ, the appropriate action is to assail the writ before
CHAPTER II. 81
JURISDICTION AND VENUE
the issuing court. Upon failure to seek redress from the. said
court, the remedy is not to resort to a co-equal body but to a
higher court with authority to nullify the action of the issuing
court (Barroso v. Omelia, G.R. No. 194767, October 14, 2015;
also cited in Del Rosario v. Ocampo-Ferrer; ibid.). Thus, under
the doctripe, a Regional Trial Court is precluded from issuing
a';ri injunc#on against a writ issµed by another Regional Trial
Court. The remedy is to go to a higher court to enjoin the acts
of the court if the latter refuses to correct its error and _denies
any motion assailing the writ it issued.
Objections to jurisdiction over the subject matter
1. The earliest opportunity of a party to raise the issue
of jurisdiction is in a motion to dismiss filed before the filing of
the answer because lack of jurisdiction overthe subject matter
is a ground for a motion to dismiss (Sec. l[b}, Rule 16, Rules of
Court). Bar 1990
2. , Jurisprudence explains that the prevailing rule is
that jurisdiction over the subject matter may be raised at any
stage of the proceedings, even for the first time on appeal (See
Calimlim v. Ramirez, 118 SCRA 399, 406;Pangilinan v. Court
of Appeals, 321 SCRA 51, 59; Francel Realty Corporation v.
Sycip, 469 SCRA 424, 431; Commissioner of Internal Revenue
· v. Mirant Pagbilao Corporation, G.R. No.· 1.80434, January 20,
2016; Erorita v. Spouses Dumlao, G.R. No. 195477, January
25, 2016). Even if the parties did not raise the issue of
jurisdiction, the reviewing court, on appeal, is not precluded
from ruling that the lower court had no jurisdiction over the
case (See Regulus Development Corporation v. De la Cruz,
G.R. No. 198172, January 25, 2016). Hence, the issue may
even be tackled motu propio for the first time on appeal (Narra
Nickel Mining and Development Corporation v. Redmont
Consolidated Mines Corporation, G.R. No. 202877, December
9, 2015). Whenever it appears that the court has no jurisdiction
over the subject matter, the action shall be dismissed. This
defense may be interposed at any time, during appeal or even
after final· judgment (Barangay Mayamot, Antipolo City v.
Antipolo City, G.R. No. 187349, August 17, 2016).
 CIVIL PRPQEDURE, VOLUME I
82
THE B4R, LECTURES SERIES
The reason for the above rule is that jurisdiction is
conferred by law, and lack of it affects the very authority of the
court to take cognizance of and render judgment on the action
(Asiatrust Development Bank v. First Aikka Development, Inc.
and Univac Development, Inc., 650 SCRA 172, 184; Carpio­
o,i
Morales v. Court Appeal�, G.R. Nos. 2) 7126-27, November
10, 2015). _Jurisdi<;!,�ion over the subject m*ter, being con.ferred
by law, is not for the courts or the parties to conveniently set
aside (Barangay ·.Mayamot, Antipolo City v. Antipolo City,
G.R. No. 187349, August 17, 2016).
Effect of estoppel on objections to jurisdiction
1. While it is true that jurisdiction over the subject
matter may be raised at any stage of the proceedings since
it is conferred by law, it is, nevertheless, settled that a party
may be barred from raising it on the ground of estoppel (La'o
v. Republic, 479 SCRA 439,, 446).
The doctrine of estoppel by laches was in:itially emphasized
by the Court in the leading case of Tijam v. Sibonghanoy,
23 SCRA 29, 35. Here, the Supreme Court barred a belated
objection to jurisdiction that was raised by a party only when
an adverse decision was rendered by the lower court against it
and because it raised the issue only after almost 15 years and
after seeking affirmative relief from the court and actively
participating in all stages of the proceedings. The doctrine,
as declared by the Supreme Court in Tijam, is "based upon
grounds of public policy x x x and is principally a question of
the inequity or unfairness of permitting a right or claim to be
enforced or asserted."
2. The Court, however, cautioned that estoppel by
laches may only be invoked to bar the defense of lack of
jurisdiction if the factual milieu is analogous to Tijam v.
Sibonghanoy (Spouses Erorita v. Spouses Dumlao, G.R. No.
195477, January 25, 2016). The contention that the defense
of lack of jurisdiction may be waived by estoppel through
active participation in the trial is not the general rule, but an
exception, best characterized by the circumstances in Tijam
CHAPTER II 83
JURISDICTION AND VENUE
v. Sibonghanoy (Mangaliag v. Catubig-Pastoral, 474 SCRA
153, 162). Where the factual settings attendant in Tijam v.
Sibonghanoy are not present, the application of estoppel by
laches would not be justified (Vda. De Herrera v: Bernardo,
650 SCRA 87, 97-98).
3.. Aside from a belated objection to ju,risdiction,
one fs.ct pattern cdmmon:iamong the cases, W:herein the
Court invoked estoppel to prevent a party from questioning
jurisdiction, is a party's active participation in all.stages of a
case. This participation includes invoking the authority of the
court in seeking affirmative relief, and questioning the court's
jurisdiction only after receiving a ruling or decision adverse to
his case, for the purpose of annulling everything done in the
trial in which he has actively participated.
After voluntarily submitting a case and encountering
an adverse decision on the merits, it is too late for the loser
to question the jurisdiction or power of the court. The Court
frowns upon the undesirable practice of a party submitting
his case for decision and then accepting the judgment, only
if favorable, and attacking it for lack of jurisdiction, when
adverse (United Church of Christ in the Philippines, Inc. v.
Bradford United Church of Christ, Inc., 674 SCRA 92, 104,
June 20, 2012; Maxicare PCIB Cigna Healthcare v. Contreras,
689 SCRA 763, 772, January 30, 2013; See also Heirs of Jose
Fernando v. De Belen, G.R. No. 186366, Juiy 3, 2013).
It is settled that the active participation of a party before
a court is tantamount to recognition of that court's jurisdiction
and willingness to abide by the court's resolution (Torres v.
Aruego, G.R. No. 201271, September 20, 2017).
Jurisdiction over the subject matter and the omnibus motion
rule
1. An omnibus motion is a motion attacking a pleading,
order, judgment, or proceeding (Sec. 8, Rule 15, Rules of Court).
A motion to dismiss, by seeking for the dismissal of a claim,
definitely attacks a pleading. Under this definition, a motion
to dismiss is an omnibus motion under Sec. 8 of Rule 15.
 84, CIVIL PR9Q,EDURE, VOLUME I
THE BA'R LECTURES SERIES
The same rule requires an omnibus motion to include all
objections then available, and all objections not so included
shall be deemed waived. Hence, pursuant to the omnibus
motion rule, when a motion to dismiss is filed, all the objections
or defenses available to the movant, at the time of the filing
of the same, shall be invoked. Those not invoked despite their
unava.ilabilityfrshall be deeme
- . d waiv�d. .
Thus, for instance, if a motion to dismiss is filed by the
' '
defendant on 'certain grounds but failed to include therein
some available defenses, like improper venue' and failure
to state a cause of action, said defenses could no longer be
invoked later in the answer. The rule is simple. Available
defenses not invoked are considered waived.
2. The omnibus motion rule, however, is, by the terms
of Sec. 8 of Rule 15, "Subject to the provisions of Section 1 of
Rule 9."
The pertinent provision of Sec. 1 of Rule 9 declares:
"x x x However, when it appears from the pleadings
or the evidence on record that the court has no jurisdiction
over the subject matter, that there is another action
pending between the same parties for the same cause, or
that the action is barreq. by a prior judgment or by statute
of limitations, the court shall dismiss the claim."
The above provision, in relation to Sec. 8 of Rule 15, clearly
spells out the corollary rule that there are certain defenses
which are not waived even if not invoked in the motion to
dismiss. Such non-waivable defenses, stated in their simplest
terms, are: (a) lack of jurisdiction over the subject matter; (b)
litis pendencia; (c) res judicata; and (d) prescription. Hence, if a
motion to dismiss was filed and the issue of lack of jurisdiction
over the subject matter was not raised therein, a party may,
when he files an answer, still raise the lack of jurisdiction as
an affirmative defense because this defense is not barred by
the omnibus motion rule. Bar 2011
CHAPTER II 85
JURISDICTION AND VENUE
C. Jurisdiction over the Parties
Meaning of jurisdiction over the person; jurisdiction in
personam
Jurisdiction over the parties refers to the power of the
court to make decisions that are binding on persons (De Pedro
v:' Romasan Developm!ent Corporation, G.Ji, No. 194751,
November 26, 2014). It is the legal power of thJ court to render
a.personal judgment aga.inst a party to an action or proceeding
(Black's Law Dictionary, 5th Ed., 767, citing Imperial v. Hardy,
La, 302 So.2d 5, 7). Also called 'jurisdiction in personam," it
is the power which a court has over the defendant's person
which is required before a court can enter a personal or an
in personam judgment (Black's Law Dictionary, 5th Ed., 766,
citing Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565).
"Jurisdiction over the person or jurisdiction in personam
x x x is an element of due process that is essential in all actions,
civil or criminal, except in actions in rem or quasi in rem" (Guy
v. Gacott, G.R. No. 206147, January 13, 2016). Jurisdiction
over the person of a litigant is vital for the enforcement of an
order or judgment of the court against such person. A person
not within the jurisdiction of the court is not bound by th
judgment of that court.
Thus, when it is the partnership that is sued for money
and a partner was not impleaded in the action and never made
a party to the. case, the property of said partner could not be
the object of the execution to satisfy a judgment rendered
against the partnership. "The power of the court in executin
judgments extends only to properties unquestionably belong­
ing 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" (Guy v. Gacott, ibid.). Also, where the action
filed is against a stockholder of a corporation, let us say, in a
suit for the recovery of ill-gotten wealth, the failure to implead
the corporation cannot bind said corporation since the court
did not have jurisdiction over it. Otherwise, the fundamen­
tal right to due process will be violated (Philippine Coconu
Producers Federation, Inc. [COCOFEDJ v. Republic, G.R. Nos.
86 CML PRQ,CEDURE, VOLUME I
THE BAR LECTURES SERIES
177857-58, October 5, 2016). This ruling is a recognition of the
separate personalities of a partnership and a corporation (See
Art. 44, Civil Code), such that the liability of a partnership or
a corporation is not the liability of the partner or stockholder,
vice versa.
How juri�
, diction over �he
·· pers�ns
..·. of the parties is a�quired
(Bar 2009)
· 3. Generally; a person voluntarily submits to the
1. ·The manner by which the court acquires jurisdiction
over the parties depends on whether the party is the plaintiff
or the defendant.
2. Jurisdiction over the plaintiff is acquired as soon
as he files his complaint or petition (De Pedro v. Romasan
Development Corporation, G.R. No. 194751, November 26,
2014; Heirs of Josefina Gabriel v. Cebrero, G.R. No. 222737,
November 12, 2018) because by the mere filing of the complaint,
the plaintiff, in a civil action, voluntarily submits himself to
the jurisdiction of the court (Guy v. Gacott, supra; See also
Onstott v. Upper Tagpos Neighborhood Association, Inc., G.R.
No. 221047, September 14, 2016). Bar 1981; 1994; 2009
3. Jurisdiction over the person of the defendant in civil
cases is acquired either by his voluntary appearance in court
and his submission to its· authority or by service of summons
(Sec. 20; Rule 14, Rules of Court; Macasaet v. Co, G.R. No.·
156759, June 5, 2013; Guy v. Gacott, supra; Onstott v. Upper
Tagpos Neighborhood Association, Inc., ibid.; KT Construction
Supply, Inc. v. Philippine Savings Bank, G.R. No. 228435,
June 21, 2017).
Voluntary appearance of the defendant (Bar 2017)
1. The court may acquire jurisdiction over the person
of the defendant without service of summons or despite a
defective service of summons. This aspect of jurisdiction may
be acquired when the defendant voluntarily appears in the
action. "The defendant's voluntary appearance in the action
shall be equivalent to service of summons" (Sec. 20, Rule 14,
Rules of Court).
CHAPTER II 87
JURISDICTION AND VENUE
2. To constitute voluntary appearance, it must be
the kind that amounts to a voluntary submission to the
jurisdiction of the court. Submission to the court's jurisdiction
takes the form of an appearance that seeks affirmative relief ,
except when the relief sought is for the purpose of objecting to
the jurisdiction of ·:.the court over the person of the defendant.
_�_ ;-".;
:-· '.• '
court's jurisdiction when he or she participates in the trial
despite improper service of summons (De' Pedro v. Romasan
Development Corporation, supra). As a general proposition,
one who seeks an affirmative relief is deemed to have
submitted to the jurisdiction of the court like the filing · of
motions to admit answer, for additional time to file an answer,
for reconsideration of a default judgment or to lift the order
of default. This rule, however, is tempered by the concept of
conditional appearance, such that a party who makes a special
appearance to challenge, among others, the court's jurisdiction
over his person cannot be considered to have submitted to it'"'
authority. The objection, however, must be explicitly made or
made in an unequivocal manner. Failure to do so constitutes
voluntary submission to the jurisdiction of the court, especially
in instances where a pleading or motion seeking affirmativ
relief is filed and submitted to the court for resolution (Onstott
v. Upper Tagpos Neighborhood Association, Inc., ·supra).
Effect of pleading additional defenses aside from lack of
jurisdiction over the person of the defendant; prior rule re•
examined
1. Under the former procedure, if the defendant rl!is
the objection of lack of jurisdiction over his person in a motio
to dismiss, the motion must rely only on that particular ground.
If the defendant appears in court, objects to its jurisdictioll
over his person and, at the same time, alleges other grounds,
the appearance would be deemed a general appearance which
was, in effect, a voluntary submission to the jurisdiction of th
court (Republic v. Ker & Company, Ltd., 18 SCRA 207, 21:J,
214).
 88 CML PROQEDURE, VOLUME I
THE BAR.LECTURES SERIES
In Wang Laboratories v. Mendoza, 156 SCRA 44, 54, for
instance, the Court has ruled that "even though the defendant
objects to the jurisdiction of the court, if, at the same time,
he alleges any non-jurisdictional ground for dismissing the
action, the court acquires jurisdiction over him."
�- The above rule w�s reexamined in La Naval Drug
Corporation v. Coutt of Appeals, 236 SCRA 78. This leading
case appropriately held that if a plaintiff may as�ert two or
more ·causes of actions, a defendant should also be allowed,
under the Rules of Court, to put up his own defenses
alternatively or hypothetically. The Court stressed that it
should not be the invocation of available additional defenses
that should be construed as a waiver of the defense of lack of
jurisdiction over the person of the defendant, but the failure
to raise the defense.
The pronouncements in La Naval are now embodied in
Sec. 20 of Rule 14 which provides:
"x x x 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."
The rule, as it now stands, allows the raising of defenses
· in addition to lack of jurisdiction over the person of the
defendant, without creating an inference of a voluntary
submission to the jurisdiction of the court (Sec. 20, Rule 14,
Rules of Court).
When jurisdiction over the person of the defendant is required
1. Jurisprudence suggests that jurisdiction over the
person of the defendant is required in an action in personam.
Jurisdiction over the person of the defendant is not a
prerequisite in an action in rem and quasi in rem.
As recently held by the Court:
"x x x In actions in personam, the judgment is for
or against a person directly. Jurisdiction over the parties
CHAPTER II 89
JURISDICTION AND VENUE
is required in actions in personam because they seek to
impose personal responsibility or liability upon a person.
Courts need not acquire jurisdiction over parties on
this basis in in rem and quasi in rem actions. Actions in
rem or quasi in rem are not directed against the person
b;rned on his or her personaLliability X X x" (De Pedro V.
Roinasan l)evelopment Corporation): G.R. No. 194751,
November �6, 2014).
Another case similarly holds:
"x x x In a proceeding .in rem or quasi in rem,
jurisdiction over the person of the defendi,mt is not . a
prerequisite to confer jurisdiction on the court, provided
that the latter has jurisdiction over the res. Jurisdiction
over the res is acquired either (a) by the seizure of the
property under legal process, whereby it is brought into
actual custody of the law; or (b) as a result of the institution
of legal proceedings, in which the power of the court is
recognized and made effective. The service of summons
or notice to the defendant is not for the purpose of vesting
the court with jurisdiction but merely for satisfying the
due process requirements" (Alba v. Court of Appeals, 465
SCRA 495, 505-506).
"Jurisdiction over the person or jurisdiction in personam
- the power of the court to render a personal judgment or to
subject the parties in a particular action to the judgment and
other rulings rendered in the action - is an element of due
process that is essential in all actions, except in actions in
rem or quasi in rem." Hence, a judgment should be executed
only against the persons who were parties to the case and not
against one not a party and who did not have his day in court.
The duty of the sheriff is to levy the property of the judgment
debtor, not that of a third person (See Guy v. Gacott, G.R. No.
206147, January 13, 2016).
2. An action in personam is an action against a person
on the basis of his personal liability. An action in re·m is an
action against the thing itself, instead of against the person.
An action quasi in rem is one wherein an individual is named
 90 CIVIL PROCEDURE, VOLUME I
THE B�'''LECTURES SERIES
as defendant and the purpose of the proceeding is to subject
his interest therein to the obligation or lien burdening the
property (Asiavest Limited v. Court of Appeals, 296 SCRA
539, 552).
. Petitions directed against the "thing" itself or the res,
V'{hich concerns the status of a per�on like; a petition
a)ioption, anni.,ilment of marriage, o'r corre�tion of entries
for
in the birth certificate, are actions in rem (Alba v. Court of
Appeals, supra/
3. Forfeiture proceedings are actions in rem. "These
proceedings do not terminate in the imposition of a penalty
but merely in the forfeiture of the properties either acquired
illegally or related to unlawful activities in favor of the State.
As an action in rem, it is a proceeding against the thing itself
instead of against the person. x x x For this purpose, service
may be made by publication as such mode of service is allowed
in actions in rem and quasi in rem" (Republic v. Glasgow
Credit and Collection Services, Inc., 542 SCRA 95, 112).
4. In an action in personam, jurisdiction over the
person of the defendant is necessary for the court to validly try
and decide the case (Asiavest Limited v. Court of Appeals, 296
SCRA 539, 552). On the other hand, in a proceeding in rem or
quasi in rem, jurisdiction. over the person of the defendant is
not a prerequisite to confer jurisdiction on the court provided
that the court acquires jurisdiction over the res. However,
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 (Asiavest Limited v.
Court of Appeals, 296 SCRA 539, 554; For related readings,
see Gomez v. Court of Appeals, 425 SCRA 98; PCI Bank v.
Alejandro, 533 SCRA 738; Biaco v. Philippine Countryside
Rural Bank, 515 SCRA 106).
Necessity for service of summons
1. The fact that the action is one in rem or quasi in
rem does not mean that the persons interested in the subject
matter of the action need not be summoned. In order to
CHAPTER II 91
JURISDICTION AND VENUE
satisfy the requirements of due process, summons upon such
persons is required regardless of the nature of the action. The
summons in such actions is not for the purpose of acquiring
jurisdiction over such persons but to serve the ends of due
. process. If, however, they l'/.ppear in the action, as when the
proper pleadi�gs is served and filed, It is as if the action is one
in p¢rsonam;;i, Such appearance emibles the court to acquire
personal jurisdiction over them. . .. "
2. Take the case of an action to annul a certificate of
title. Jurisprudence holds that:
"An action for annulment of certificate of title is
quasi in rem. It is not an action against a person on the
basis of his personal liability, but an action that subjects
a person's interest over a property to a burden. The
action for annulment of a certificate of title threatens
petitioner's interest in the property. Petitioner is entitled
to due process with respect to that interest. The court
does not have competence or authority to proceed with an
action for annulment of certificate of title without giving
the person, in whose name the certificate was issued, all
the opportunities to be heard.
Hence, regardless of the nature of the action, proper
service of summons is imperative. A decision rendered
without proper service of summons suffers .a defect in
jurisdiction. Respondent's institution of a proceeding for
annulment of petitioner's certificate of title is sufficient
to vest the court with jurisdiction over the res, but it is
not sufficient for the court to proceed with the case with
authority and competence.
Personal service of summons is the preferred mode
of service of summons. Thus, as a rule, summons roust
be served personally upon the defendant or respondent
wherever he or she may be found. If the defendant or
respondent refuses to receive the summons, it shall be
tendered to him or her (De Pedro v. Romasan Development
Corporation, G.R. No. 194751, November 26, 2014; italics
supplied).
 92 CML PROCEDURE, VOLUME I
THE ijl\R LECTURES SERIES
D. Jurisdiction over the Issues
Meaning of jurisdiction over the issue
l. Jurisdiction over the issue is the power of the court
to try and decide the issues raised in the pleadings of the
parties (Reyes v. D/az, 73 Phil. 484, 487).
2. An issu�·, is a disputed point �t question to ;,hich
parties to an action have narrowed 'down their several
allegations and upon which .they are desirous of obtaining a
decision (Black's Law Dictionary, 5th Ed., 745, citing Muller v.
Muller, 235 Cal. App. 2d, 341, 45 Cal. Rptr. 182, 184). Where
there is no disputed point, there is no issue:
How jurisdiction over the issue is conferred and determined
l. Generally, jurisdiction over the issues is conferred
and determined by the allegations in the pleadings of the
parties. The pleadings present the issues to be tried and
determine whether or not the issues are of fact or of law (61A
Am Jur 2d, Pleadings, §1).
An issue arises because a material allegation of a claiming
party is specifically denied by the defending party. The denial,
to be specific, must conform to any of the denials prescribed in
Sec. 10 of Rule 8. A denial, made not in accordance with the
said rule, is to be construed as an admission, a circumstance
which does not give rise to an issue. Thus, where the defendant
admits all the material allegations of fact of the claiming
party, there is no controverted issue between the parties.
Under Rule 34 of the Rules of Court, where an answer
fails to tender an issue, or otherwise admits the material
allegations of the adverse party's pleading: a judgment on
the pleadings may be rendered by the court upon a motion
properly filed.
2. 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 an agreement simplifying the issues of the case
(See Sec. 2, Rule 18, Rules of Court).
CHAPTER II 93
JURISDICTION AND VENUE
3. Jurisdiction over the issues may also be conferred
by waiver or failure to object to the presentation of evidence
on a matter not raised in the pleadings. Here, the parties try,
with their express or implied consent, issues not raised in the
pleadings. The issues tried shall be treated in all respects as
if they had been raised in the pleadings (See Sec. 5, Rul_e 1 O;
; Rules �( Court). ,::
Distin�tion between a question of law and a question of fact
(Bar 2004) ·
l. The issue in a case may be either one of law or of
fact.
There is a question of law when the doubt or difference
a�ises as to what the law is on a certain set of facts. There is
a question of fact when the doubt or difference arises as to the
truth or falsehood of the alleged facts (Spouses Santos v. Court
of Appeals, 337 SCRA 67, 74). For a question to be one of law,
the same must not involve an 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 (Velayo-Fong v. Spouses Velayo,
510 SCRA 320, 329-330; Alicando v. People, G.R. No. 181119,
July 31, 2013; International Hotel Corporation v. Joaquin, Jr.,
G.R. No. 158361, April 10, 2013). In short, the test of whether
a question is one of law or of fact is whether the court can
determine the issue raised without reviewing or evaluating
the evidence. If there is no need for such evaluation, the issue
is one of law; otherwise, it is a question of fact (National
Association of Electricity Consumers for Reforms v. Manila
Electric Company, G.R. No. 191150, October 10, 2016).
Thus, where the question disputed by the parties is
whether or not the debtor has paid the debt, the issue is one
of fact. Where the question is whether or not the manner
of payment is of the type which produces the legal effect of
extinguishing the obligation, the issue becomes one of law.

94 CMLJ?ROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Also, when, under a given set of facts, the issue is whether or
not the law on double sales applies, there is a question of law.
When in a case, the issue is the genuineness or due execution
of a document, the question is one of fact.
2. Where the threshold issue is whether certain
paragraphs i:p. an agreement are vqid for being contrary}to
law or public;policy, it is oh0.ous thJtthe issue is aquestionof
law (Avon Cosmetics, Inc. v. Luna, 511 SCRA 376, 388).
When an issue arises even if not raised in the pleadings
1. While it is a rule that an issue arises from the
pleadings of the parties, an issue may arise in the case without
it having been raised in the pleadings. This occurs when the
parties try an issue with their consent. Under Sec. 5 of Rule
10, when issues not raised in the pleadings are tried with the
express or implied consent of the parties, they shall be treated
in all respects as if they, had been raised in the pleadings
(Estolas v. Acena, 448 SCRA 233, 245). Under the same rule,
upon motion of any party, the pleadings may be amended
to conform to the evidence but the failure to so amend does
not affect the result of the trial of these issues because the
pleadings are deemed impliedly or constructively amended to
embody the issues tried with the consent of the parties.
' On the other hand, an action in rem or quasi in rem is directed
, 2. T·he consent of the parties may be inferred from the
failure to interpose an objection to the presentation of evidence
on a matter not alleged in the pleadings. Thus, where the
issue, as determined in the complaint and answer, is one of
mere possession of property, any evidence showing ownership
must be objected to, ownership not being an issue raised in
the pleadings. However, if the evidence is not objected to
seasonably, the matter of ownership will be deemed to have
been raised by the parties in their pleadings and the evidence
becomes admissible.
3. If the complaint did not allege a claim for salary
differential, but no objection was interposed on the evidence
presented to prove the claim for salary differential, the Labor
Arbiter correctly considered the evidence (Cindy and Lynsy
Garment v. NLRC, 284 SCRA 38, 45).
CHAPTER II 95
JURISDICTION AND VENUE
4. If, in a complaint for a sum of money filed before the
Regional Trial Court, the plaintiff did not allege the making
of a demand for payment before commencing suit but, during
the trial, plaintiff duly offered in evidence a letter of demand
to prove the making of an extrajudicial demand on the
defendant, and the letter was admitted in evidence without
objection of the defendatit, it is as if the matter ,pf demand was
raised in the pleadings. The court committediho procedural
error in admitting the letter of demand in evidence. Bar 2004
E. Jurisdiction over the Res
Meaning of jurisdiction over the res; actions in personam, in
rem, and quasi in rem
1. ''Res," in civil law, is a 'thing,' an 'object.' It means
everything that may form an object of rights, in opposition to
'persona' which is the subject of rights. The term, res, includes
an object, subject-matter or status (Black's Law Dictionary,
5th Ed., 1172; citations omitted).
2. Actions in personam and in rem or quasi in rem
differ in that an action in personam is directed against a
specific person and seeks a personal judgment against him.
· agairtst the thing or property or status of a person and seeks
a judgment with respect thereto as against the whole world
(Romualdez-Licaros v. Licaros, 401 BCRA 762, 770). This
means that a judgment in an action in rem or quasi in rem is
one rendered for or against the thing itself and not against a
person.
3. Jurisdiction over the res refers to the court's
jurisdiction over the thing or the property which is the subject
of the action. This type of jurisdiction is necessary when the
action is one in rem or quasi in rem. When the action is one in
personam, jurisdiction over the res is not sufficient to authorize
the court to render a judgment against the defendant. In
an action in personam, jurisdiction over the person of the
defendant is required.
 CML P;ROCEDURE, VOLUME I
96
THE BAR LECTURES SERIES
Thus, jurisprudence holds that if the action is in rem or
quasi in rem, jurisdiction over the person of the defendant is
not required for the court to proceed with the action. What
is required is jurisdiction over the res although summons
must also be served upon the defendant in order to satisfy the
requirements of due process (Gomez v. Court of Appeals, 425
SCRA 98�'.:104). .,;- ..
i > able to acquir'e jurisdiction over his person,;"an indispensable
4. Where the action is in personam, jurisdiction over
the person of the defendant is necessary for the court to validly
try and decide the case. This is because the· action is one
brought on the basis of the personal liability of the defendant
(Banco do Brasil v. Court of Appeals, 333 SCRA 545, 557,' for
additional readings, see Romualdez-Licaros v. Licaros, supra).
Take a very simple example of an action for a sum of
money, an action in personam. When a plaintiff files such an
action against the defendant, he asks the court for a judgment
ordering the defendant to pay him the amount owed. In
order for the court to be vested with the· authority to order
the defendant to pay the sum demanded by the plaintiff, it is
imperative for the court to have jurisdiction over the person of
the defendant. This is achieved by a valid service of summons
upon him or by his voluntary appearance in the action.
Without such authority, the court is devoid of any power to
command the defendant to pay.
5. When the action is either in rem or quasi in rem,
the action is directed against a specific property or "res" and
not against a particular person. Hence, jurisdiction over the
"res" is sufficient as long as summons is properly served upon
the defendant or persons who stand to be benefited or injured
by the judgment. It has to be emphasized that the service of
summons in either of these actions, is made to comply with
the demands of due process and not necessarily to acquire
jurisdiction over the defendant.
Consider a case involving a former Filipino and resident
of Manila. After the death of his parents, from whom he
inherited several prime residential lots, he left for the United
States. After several years, he became an American citizen
and now permanently resides in New York. While on vacation
CHAPTERiI 97
JURISDICTION AND VENUE
in Manila, he borrowed P2 million from his cousin but he failed
to pay the debt on the due date despite repeated demands.
After a complaint for a sum of money was filed against him by
his cousin, the sheriff, serving the summons, discovered that
the defendant had already left the country. Notice that the
defendant is a non-resident who, at the same time, is Iio longer
·. , : found in the Philippines. Under the facts, the court will not be
. requirement in an action in personam. As will be discussed in
a later chapter of this.treatise, service in person or substituted
service cannot be availed of to acquire jurisdiction over the
person of the non-resident who, at the same time, is absent
from the country.
There is, however, a remedy supplied by the Rules. Under
Rule 57, the plaintiff may obtain from the court a writ of
preliminary attachment over his property in the Philippines.
When the writ is issued, and the property is attached, the
defendant may, with leave of court, have the defendant served
with summons pursuant to the rules on extraterritorial
service of summons. This mode of service becomes available
since the action for a sum of money, an action in personam,
has been converted into an action quasi in rem by virtue of the
attachment of the defendant's property in the Philippines. Now,
once the property has been attached, the plaintiff may initiate
the proceedings against the property of the 'defendant even if
�he defendant is not subject to the in personam jurisdiction
of the court. Viewed from another perspective, the property
takes the place of the defendant who cannot be or refuses to
be subjected to the jurisdiction of the court. Since jurisdiction
over the "res" has already been acquired as a consequence of
the attachment of the defendant's property, trial may proceed
against the property of the defendant. The proceedings will be
one, not against the person of the defendant, but against his
property.
Similarly, where the proceeding is quasi in rem like
an action to foreclose a real estate mortgage against a non­
resident defendant who is not found in the Philippines, the
jurisdiction of the court over the res, which is the property
98 CML fJ.l,OCEDURE, VOLUME I
THE EAR LECTURES SERIES
mortgaged, is sufficient for the court to order the foreclosure
of the mortgage. Summons must be served, however, upon
the mortgagor to comply with the demands of due process. If
the mortgagor does not appear in the action, the jurisdiction
and the subsequent judgment of the court, in this case, will
be liniited to the foreclosed property or its value since its
jurisdiction extends only to the property foreclosed{;
,,,> ,,., ..
.' :;:..,,·
Where the proceeding is the allowance or proba.te of a will,
an in rem proceeding, jurisdiction over the res, i.e., the will and
the estate mentioned therein, is sufficient for jurisdictional
purposes. Personal jurisdiction over the persons of those
.interested in the will is not necessary because the proceeding
is not intended to impose a personal liability against them.
However, the court is mandated to notify the heirs, legatees,
devisees of the time and place for proving the will to comply
with the requirements of due process.
How acquired
1. Jurisdiction over the res may be acquired by the
court by placing the property or thing under its custody
(custodia legis) or constructive seizure. Example: Attachment
of property in which property is placed in the actual custody
of the court.
It may also .be acquired by the court through statutory
authority conferring upon it the power to deal with the
property or thing. Example: Suits involving the status of the
parties; suits involving the property in the Philippines of non­
resident defendants.
The Court more clearly explains:
"Jurisdiction over the property which is the subject
of the litigation may result either from a seizure of the
property under legal process, whereby it is brought into
the actual custody of the law, or it may result from the
institution of legal proceedings wherein, under special
provisions of law, the power of the court over the property
is recognized and made effective. In the latter case, the
property, though at all times within the potential power
of the colirt, may never be taken into actual custody at
CHAPTER II 99
JURISDICTION AND VENUE
all. An illustration of the jurisdiction acquired by actual
seizure is found in attachment proceedings, where the
property is seized at the beginning of the action, or some
subsequent stage of its progress, and held to abide with
the final event of the litigation. An illustration of what
[th]e [Court] term[s] potential jurisdiction over the res, is
found in the. proceeding to register the,title of land under
[the] system:for the registration of la�\:l- Here the court,
without takihg actual physical controf'over the property
assumes, at the instance of some per�on claiming to be
owner, to exercise a jurisdiction in rem over the property
and to adjudicate the title in favor of the petitioner against
all the world" (Banco Espanol-Filipino v. Palanca, 37
Phil. 921, 927-928; italics supplied).
2. A land registration case is a proceeding in rem, and
jurisdiction over the res, in this case, cannot be acquired,
unless there is a constructive seizure of the land through
publication and service of notice (Republic v. Herbieto, 459
SCRA 183, 196). The seizure in this case, is not an actual
seizure of the land.
Extent of relief when jurisdiction is only over the res
1. The court exercising an in rem or quasi in rem
jurisdiction has limited powers. Its jurisdiction extends only
to the valu� of the property over which its jurisdiction' is
based. If the proven claim exceeds the value of the property;
the court has no authority to render a deficiency judgment.
Stated in another way, any relief granted in rem or in
quasi in rem actions must be confined to the res, and the court
cannot lawfully render a judgment against the defendant
(Banco do Brasil v. Court ofAppeals, 333 SCRA 545, 558) where
jurisdiction has not been acquired by the court over the person
of the defendant. Thus, if in an action to foreclose a real estate
mortgage, where the jurisdiction acquired by the court is only
over the res and not over the person of the defendant (because
the debtor-mortgagor is a non-resident who is also outside of
the Philippines), the relief of the creditor extends only to the
property foreclosed or to its value. If in the foreclosure sale,
there arises a deficiency, a deficiency judgment, authorized
 100 CMLPROCEDURE,VOLUME I
THE ]3AR LECTURES SERIES
by Sec. 6 of Rule 68, against the debtor-mortgagor would not
be feasible. This is because the collection of the deficiency is
a proceeding in personam which requires jurisdiction over
the person of the debtor-mortgagor. There being no personal
jurisdiction over his person, a deficiency judgment cannot be
r�ndered against him.
,:;. 2. In th� earli�r example, where th/property of a
non-resident was attached to convert the action from one
in personam to one quasi in rem, the judgme·nt of the court
will extend only to the property attached or its value. If the
plaintiffs claim, for instance, is P2 million but the property
attached has a value of only Pl.5 million, the judgment
of the court would be limited only to the latter amount. It
cannot order the defendant to pay the difference since it has
no jurisdiction over the person of the defendant. It has only
acquired jurisdiction over the property attached.
Remember, that summons to the defendant is required
whatever be the nature of the action. The defendant who
learns of the attachment of his property is now confronted
with two choices - let his property answer for his alleged
obligation or personally appear and put up a full-blown
defense. If he unequivocally appears in the action or performs
acts constituting volun�ary appearance in the action, like
filing an answer to the complaint, the court will now acquire
jurisdiction over his person. In such a case, the action is
deemed to reacquire the status of an action in personam.
Under the facts, the court has also acquired jurisdiction to
render judgment ordering the defendant to pay the difference
because it has acquired jurisdiction over the person of said
defendant.
F. Jurisdiction of the Supreme Court
(Bar 2014)
Basic principles in relation to the jurisdiction of the Supreme
Court
1. The Supreme Court is not a trier of facts. Under Rule
45 of the Rules of Court, only questions of law are generally
CHAPTER II 101
JURISDICTION AND VENUE
reviewed by the Court. Questions of fact are not entertained
(See Caranto v. Bergesen D. Y. Phils., Inc., G.R. No. 170706,
August 26, 2015; Multi-International Business Data System,
Inc. v. Martinez, G.R. No. 175378, November 11, 2015; DST.
Movers Corporation v. General Insurance Corporation, G.R.
· No. 198627, January 13, 2016; Divine Word College of Laoag
v. Mina, G.� No. 195155, April 1�,,,2016).
1 ,t
It is not the function of the Supreme Court to analyze
and weigh all over again evide�ce already considered in
the proceedings below (Gatan v. Vinarao, G.R. No. 205912,
October 18, 2017) since such matters are issues of fact. The
appreciation and resolution of factual issues are the functions
of the lower courts, whose resulting findings are received
with respect and binding on the Supreme Court, especially
when such findings are affirmed by the Court of Appeals
(Republic v. Looyuko, G.R. No. 170966, June 22, 2016; see
Bacalso v. Aca-ac, G.R. No. 172919, January 13, 2016) and
cannot be reviewed on appeal by the Supreme Court as long
as such findings are supported by the records, or are based
on substantial evidence (Terelay Investment and Development
Corporation v. Yulo, G.R. No. 160924, August 5, 2015). Also,
factual findings of quasi-judicial bodies, like the NLRC, when
they coincide with those of the Labor Arbiter, if supported by
substantial evidence, are accorded respect and even finality
by the Court (Dasco v. Philtranco Servic� Enteprise�, Inc.,
G.R. No. 211141, June 29, 2016).
Hence, if an appeal by certiorari is taken to the Supreme
Court from the Regional Trial Court raising or submitting
issues of fact, such appeal may be referred to the Court of
Appeals for appropriate action (Sec. 6, Rule 56, Rules of Court).
The Supreme Court does not have to dismiss an improper
appeal.
2. "A question oflaw exists when the doubt or controversy
concerns the correct application of law or jurisprudence to
a certain set of facts; or when the issue does not call for an
examination of the probative value of the evidence presented,
the truth or falsehood of facts being admitted. A question of
fact exists when the doubt or difference arises as to the truth
 CIVIL PRQ(::.,EDURE, VOLUME I
102
THE BAR LECTURES SERIES
or falsehood of facts or when the query invites calibration of
the whole evidence considering mainly the credibility of the
witnesses, the existence or relevancy of specific surrounding
circumstances as well as their relatiori. to each other and to the
whole, and the probability of the situation" (Ligtas v. People,
, G.R. No. 200751, August 17, 2015).
Where the issu/brought is wh�ther olhot a lower cou:rt
has the power or authority to hear and determine a cause of
· action or where the issue concerns the correct interpretation
or application of relevant laws and rules, the qu.estion posed
is one of law, hence, cognizable by the Supreme Court (See
Gomez u. Montalban, 548 SCRA 693, 702). However, a
challenge against the findings of the Court of Appeals, that
the petitioner had a homicidal instinct when he hacked the
victim, raises a question of fact which the Court would not,
as a rule, entertain (See Abella u. People, G.R. No. 198400,
October 2, 2013).
Jurisprudence, however, has carved out some recognized
exceptions to the above rule. For example, when the
findings of facts of the trial court and the reviewing court
are conflicting, factual issues may be resolved by the Court,
as when the findings of the Labor Arbiter and the NLRC
are frontally inconsisten� with the findings of the Court of
Appeals (See Caranto v. Bergesen D. Y. Phils., Inc.,. G.R. No.
170706, August 26, 2015). Another exception, among others, is
when the findings of the court below are grounded entirely on
speculation, surmises or conjectures (Sabellina v. Buray, G.R.
No. 187727, September 2, 2015). Note: A more comprehensive
discussion of the topic is found in a later chapter of this
material.
Original exclusive jurisdiction of the Supreme Court
The Supreme Court has exclusive original jurisdiction in
petitions for certiorari, prohibition, and mandamus against
the:
(a) Court of Appeals (Sec. 17, Judiciary Act of
1948);
CHAPTER II 103
JURISDICTION AND VENUE
(b) Commission on Elections (Sec. 7, Art. IX, 1987
Constitution of the Philippines);
(c) Commission on Audit (Sec. 7, Art. IX, 1987
Constitution of the Philippines);
(d) Sandiganbayan (P.D. 1606.as amended); and
; ...(. e) Court of 'J:'ax Appeals.
;-
Original C?Oncurrent jurisdiction of the Supreme Cou�
1. The Supreme Court has concurrent original
jurisdiction with the Court of Appeals in petitions for certiorari,
prohibition, and mandamus against the:
(a) Regional Trial Court (Sec. 21[1], B.P. 129);
(b) Civil Service Commission (R.A. 7902);
(c) Central Board of Assessment Appeals (Note:
Because the decisions of the Central Board of Assessment
Appeals are now appealable to the Court of Tax Appeals
under Sec. 7(5] of R.A. 9282, it is submitted that the
original jurisdiction of the Supreme Court over such
petitions is concurrently exercised with the Court of Tax
Appeals);
(d) National Labor Relations Commission (St.
Martin Funeral Homes v. NLRC, 295 SCRA 494; R.A.
7902); and
(e) Other quasi-judicial agenci€3s (B.P. 129; R.A.
7902; Heirs of Hinog u. Melicor, 455 SCRA 460).
This jurisdiction is subject to the doctrine of hierarchy
of Courts (Liga ng mga Barangay Nat(onal v. Atienza, 420
SCRA 562, 572; Lacson Hermanas, Inc. v. Heirs of Ignacio,
462 SCRA 290, 294).
2. Concurrent original jurisdiction with the Court of
Appeals and the Regional Trial Court in petitions for certiorari,
prohibition, and mandamus against lower courts and bodies,
and in petitions for quo warranto and habeas corpus. This
jurisdiction is subject to the doctrine of hierarchy of courts

104 CML PROeEDURE, VOLUME I
THE BAR LECTURES SERIES
(Secs. 9[1], 21[1], B.P. 129; Sec. 5, Art. VIIL 1987 Constitution
of the Philippines).
3. Concurrent original jurisdiction with the Regional
Trial Court in cases affecting ambassadors, public ministers,
and consuls (Sec, 21[2], B.P. 129; Sec. 5, Art. VIIL 1987
Constitution of t!;e Philippines).
' _-_:,
Appellate jurisdiction
The Supreme Court has appellate jurisdiction by way of
petition for review on certiorari (appeal by certiorari under
Rule 45) against the: (a) Court of Appeals, {b) Sandiganbayari,
(c) Regional Trial Courts on pure questions of law (Sec. 1, Rule
45) 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 (Sec. 5, Art. VIIL
Constitution of the Philippines), and (d) Court of Tax Appeals
in its decisions rendered en bane (Sec. 11, R.A. 9282).
Original cases cognizable by the Supreme Court
1. As a rµle, cases are not filed originally with the
Supreme Court. The rule is, however, subject to certain
'exceptions. Subject to the doctrine of hierarchy of courts, only
the following may be filed originally with the Supreme Court:
a. petition for certiorari;
b. petition for prohibition;
- c. petition for mandamus;
d. petition for quo warranto;
e. petition for habeas corpus;
f. disciplinary proceedings against members of
the judiciary and attorneys; and
g. cases affecting ambassadors, other public
ministers, and consuls (Sec. 1, Rule 56, Rules of Court),
CHAPTER II 105
JURISDICTION AND VENUE
2. A petition for a writ of amparo may also be filed
directly with the Supreme Court (Sec. 3, The Rules on the Writ
o f Amparo) aside from the other courts mentioned. A petition
for a writ of habeas data may also be filed directly with the
Supre_me Court (Sec. 3, The Rules on the Writ of Habeas Data).
App�al to the Supreme Coort
,,
' _;;�';
1. An appeal to the Supreme Court may be taken only
by a ''petition for review on certiorari, except in criminal cases
where the penalty imposed is death, reclusion perpetua, or
life imprisonment (Sec. 3, Rule 56, Rules of Court). The mode
of appeal to the Supreme Court referred to. under Sec. 3 of
Rule 56 is an appeal by certiorari under Rule 45 (also called
petition for review on certiorari).
2. The appeal is made by filing with the Supreme
Court a verified petition for review on certiorari raising only
questions of law (Sec. 1, Rule 45, Rules of Court). Again, it
heeds to be remembered that, as a rule, questions of fact are
not to be raised in an appeal by way of Rule 45.
Cases which must be heard En Banc
Under the Constitution of the Philippines, the following
c;ases should be heard by the Supreme Court En Banc:
(a) All cases involving the constitutionality of a
treaty, international or executive agreement, or law (Sec.
4[2], Art. VIII);
(b) All cases which, under the Rules of Court, are
. reqqJred to be heard en bane (Sec. 4[2},. Art. VIII);
(c) All cases involving the constitutionality, ap­
plication, or operation of presidential decrees, proclama­
tions, orders, instructions, ordinances, and other regula­
tions (Sec. 4[2], Art. VIII);
(d) Cases heard by a division when the r'equired
number in the division is not obtained (Sec. 4[3], Art.
VIII);
 106 CML P,R,pCEDURE, VOLUME I
THE BAR LECTURES SERIES
(e) Cases involving a modification or reversal of a
doctrine or principle of law laid down previously by the
Supreme Court in a decision rendered En Banc or by a
division (Sec. 4[3], Art. VIII);
(f) Cases involving the discipline of judges of lower
courts(Sec. 11, Art. VIII);
!,:S·t : Jbe filed with t:q.e Cou:i;t of Appeals.
· (g) Contests relating the election;· returnt and
qualifjcations of the Preside:nt or Vice President (S,ec. 4,
last paragraph, Art. VII).
Procedure when the opinion of the Suprerne Court En Banc
is equally divided (Bar 2012)
Where the opinion of the Supreme Court en bane is
equally divided, or the necessary majority cannot be had, the
case shall again be deliberated on. If after such deliberation
no decision is reached, the original action commenced in the
court shall be dismissed. In appealed cas�s, the judgment or
order appealed from shall stand affirmed. On all incidental
matters, the petition or motion shall be denied (Sec. 7, Rule
56', Rules of Court).
G. Jurisdiction of the Court of Appeals
1. Unlike the Supreme Court which could sit En
Banc in order to resolve cases, the Court of Appeals may sit
En Banc only for the purpose of exercising administrative,
ceremonial, or other non-adjudicatory functions (Sec. 4, B.P.
129, as amended).
Original exclusive jurisdiction of the Court of Appeals
The Court of Appeals shall exercise exclusive original
jurisdiction in actions for the annulment of the judgments of
Regional Trial Courts (Sec. 9[2], B.P. 129, as amended).
Original concurrent jurisdiction of the Court of Appeals
1. The Court of Appeals has concurrent and original
Jurisdiction with the Supreme Court to issue writs of certiorari
CHAPTER II 107
JURISDICTION AND VENUE
prohibition, and mandamus against the (a) Regional Trial
Court, (b) Civil Service Commission, (c) Other quasi-judicial
agencies mentioned in Rule 43, and (e) National Labor
Relations Commission (St. Martin Funeral Homes v. NLRC,
295 SCRA 494, 509). Following the doctrine of hierarchy of
courts, the petition for certiorari against the NLRC must first
2. The Court bf Appeals has concurrent and original
jurisdiction with the Supreme Court and t]i.e Regional Trial
Court to issue writs of certiorari, prohibition, and mandamus
against lower courts and bodies and also writs of quo warranto
and habeas corpus. Bar 2011
Note: Under the law, the original jurisdiction of the
Court of Appeals to issue writs of mandamus, prohibition,
certiorari, habeas corpus, and quo warranto, and auxiliary
writs or processes may be exercised whether or not in aid of
its appellate jurisdiction (Sec. 9[1], B.P. 129, as amended).
Previously, the Court of Appeals could issue these writs only
in aid of its appellate jurisdiction.
3. The Court of Appeals has exclusive appellate
jurisdiction by way of ordinary appeal from the judgments of
the Regional Trial Court and the Family Courts (Sec. 9[3],
B.P. 129, as amended; Sec. 14, R.A. 8369).
4. Exclusive appellate jurisdiction by way of petition
for review from the judgment of the Regional Trial Court
rendered in the exercise of its appellate jurisdiction (See Sec.
22, B.P. 129, as amended; Rule 42, Rules of Court; Sec. 9, B.P.
129).
5. Exclusive appellate jurisdiction by way 0f petition
for review from the decisions, resolutions, orders or awards of
the Civil Service Commission, and other bodies mentioned in
Rule 43 (Sec. 9[3], B.P. 129).
The decisions of the Office of the Ombudsman in
administrative disciplinary cases are appealable to the Court
of Appeals (Enemecio u. Office of the Ombudsman, 419 SCRA
82, 90; Gonzales v. Rosas, 423 SCRA 488, 494).
108 CIVIL PR9QEDURE, VOLUME I
THE BAR LECTURES SERIES
Note that under R.A. 9282, the judgments and final
orders of the Court of Tax Appeals are no longer appealable by
way of petition for review to the Court of Appeals. Judgments
of the Court of Tax Appeals rendered en bane are appealable
to the Supreme Court by way of Rule 45 (Sec. 11, R.A. 9282).
6. , Appellate jurisdiction over decisio11s of Municipal
Trial Courts in cadasti;al or lartd registration cases i:>ursuant
to its delegated jurisdiction because decisions of Municipal
Trial Courts in these cases are appealable in the same manner
as decisions of Regional Trial Courts (Sec. 34,, B.P. 129, as
amended).
Power to try and conduct hearings like a trial court (Bar 2008)
1. Even if the Court of Appeals is not basically a trial
court, unlike the Regional Trial Court or the Municipal Trial
Court, which are actually trial courts, under the law, 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 not only within its original jurisdiction
but also in cases falling within its appellate jurisdiction. This
authority includes the power to grant and conduct new trials
or further proceedings (Sec. 9[3}, B.P. 129, as amended by R.A.
7902).
It has been held that the Court of Appeals may pass upon
the evidence to factual issues as when a petition for certiorari
is filed before it (Alcazaren v. Univet Agricultural Products,
Inc., 475 SCRA 636, 650). The court may even act like a trial
court in resolving motions for new trial, petitions for writ of
amparo, habeas data, habeas corpus or, in actions to annul
the judgment of the RTC over which the Court of Appeals has
original jurisdiction. Bar 2008
2. Sec. 9 of B.P. 129, as amended, provides:
XXX
"The Court of Appeals shall have the power to try
cases and conduct hearings, receive evidence and perform
any and all acts necessary to resolve factual issues
raised in cases falling within its original and appellate
CHAPTER II 109
JURISDICTION AND VENUE
jurisdiction, including the power to grant and conduct
new trials or further proceedings x x x" (See Philippine
National Bank v. Pasimio, G.R. No. 205590, September
2, 2015/
3. The authority granted by law to the Court of Appeals
· · to the following
to conduct trials-. or hearings is subject !.
limitatio�s: ,.,,
(a) trials or hearings must be-continuous;
(b) trials and hearings must be completed within
three months, except when extended by the Chief Justice
(Sec. 9[3}, B.P. 129 as amended).
H. Jurisdiction of the Court of Tax Appeals
Aside from its jurisdiction over certain criminal offenses,
Sec. 7 of R.A. 9282 provides that the Court of Tax Appeals
shall exercise:
A. Exclusive appellate jurisdiction to review by appeal:
1. Decisions of the Commissioner of Internal
Revenue in cases involving disputed assessments,
refunds of internal revenue taxes, fees or other charges,
penaltifs in relation thereto, or other matters arising
under the National Internal Revenue Code or other laws
administered by the Bureau of Internal Revenue;
2. Inaction by the Commissioner of Internal
Revenue in cases involving disputed assessments,
refunds of internal revenue taxes, fees or other charges,
penalties in relations thereto, or other matters arising
under the National Internal Revenue Code or other laws
administered by the Bureau of Internal Revenue, where
the National Internal Revenue Code provides a specific
period of action, in which case the inaction shall be
deemed a denial;
3. Decisions, orders or resolutions of the Regional
Trial Courts in local tax cases originally decided or
110 CIVIL PROCEDURE,
"'
VOLUME I
THE B� LECTURES SERIES
resolved by them in the exercise of their original or
appellate jurisdiction;
4. Decisions of the Commissioner of Customs in
cases involving liability for customs duties, fees or other
money {:harges, seizure, detention or release of property
affected, fines, forfeitures or other penalti�s in relation
.,, thereto, or other matters arising under the'Customs Law
or other laws administered by the Bureau of Customs;
5. Decisions of the Central Board of Assessment
Appeals, in the exercise of its appellate jurisdiction,
over cases involving the assessment and taxation of real
property originally decided bythe provincial or city board
of assessment appeals;
6. Decisions of the Secretary of Finance on
customs cases elevated to him automatically for review
from decisions of the Commissioner of Customs which
are adverse to the Government under Sec. 2315 of the
Tariff and Customs Code; and
7. Decisions of the Secretary of Trade and Industry,
in the case of nonagricultural product, commodity or
article, and the Secretary of Agriculture in the case of
agricultural product, commodity or article, involving
d1.rr.nping and countervailing duties under Secs. 301 and,
302, respectively, of the Tariff and Customs Code, and
safeguard measures under R.A. 8800, where either party
may appeal the decision to impose or not to impose said
duties.
B. Jurisdiction over tax collection cases:
1. Exclusive original jurisdiction in tax collection
cases involving final and executory assessments for taxes,
fees, charges and penalties: Provided, however, That
collection cases where the principal amount of taxes and
fees, exclusive of charges and penalties claimed, is less
than One million pesos (Pl, 000, 000) shall be tried by the
proper Municipal Trial Court, Metropolitan Trial Court,
and Regional Trial Court.
CHAPTER II 111
JURISDICTION AND VENUE
2. Exclusive appellate jurisdiction in tax collection
cases:
a. Over appeals from the judgments, resolu­
tions or orders of the Regional Trial Courts in tax·
collection cases originally decided by them, in their
respective territorial jurisdiction.
J:' b. Over petitions fqr review of the judgmeh_ts,
resolutions or orders of the Regional Trial Courts in
the exercise of their appe,llate jurisdiction over ,tax
collection cases originally decided by the Metropo­
litan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts, in their respective
jurisdictions.
I. Jurisdiction of Municipal Trial Courts
Explanatory note
l. R.A. 7691 (An Act Expanding the Jurisdiction of
the Metropolitan Courts, Municipal Circuit Trial Courts, and
Municipal Trial Courts, Amending for the Purpose Batas
Pambansa Blg. 129, Otherwise Known as the ''Judiciary
Reorganization Act of 1980"), which took effect on April 15,
1994 (Per Administrative Circular 09-94, June 14, 1994),
amended the jurisdictional provisions of B.P. 129 and, in effect,
-��panded the jurisdiction of the Metropolitan Trial Courts,
Municipal ·.Trial Courts, and the . Municipal Circuit Trial
Courts. The succeeding paragraphs treat of the jurisdiction of
s_aid courts which shall be referred to as the "MTC."
2. When R.A. 7691 took effect on April 15, 1994, the
jurisdiction of the MTC was set at an amount not exceeding
Pl00, 000 outside Metro Manila, and not exceeding P200, 000 in
Metro Manila. However, Sec. 5 ofR.A. 7691 provided that five
years from the effectivity ofR.A. 7691, the amount of Pl00, 000
for courts outside Metro Manila shall be adjusted to P200, 000
and the amount of P200, 000 for Metro Manila shall be adjusted
to P400, 000. It further provided that the jurisdictional amount
of P200, 000 for courts outside Metro Manila shall be further
adjusted to P300, 000 five years thereafter. Hence, at present,
the jurisdiction of the MTC outside Metro Manila covers an
112 CIVILP�QCEDURE,VOLUMEI
THE BAR LECTURES SERIES
amount not exceeding P300,000. That of the Metropolitan
Trial Court remains constant at an amount not exceeding
P400,000.
The pertinent provision provides:
"Section 5. After. five (5) years from the effectivity
of this Act, the jutisdictionaFamounts mentioned in Sec.
19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Elg.
129 as amended by this Act, shall be adjusted to Two
hundred thousand pesos 1 (P200,000.00). Five (5) years
thereafter, such jurisdictional amounts shall be adjusted
further to Three hundred thousand pesos (P300,000.00):
Provided, however, That in the case of Metro Manila;
the abovementioned jurisdictional amounts shall be
adjusted after five (5) years from the effectivity of this
Act to Four hundred thousand pesos (P400,000.00)."
Note: The amounts referred to above did not take effect
automatically on April 15, 1994, the date of the effectivity
of the law. Per OCA Circular No. 21-99 (April 15, 1999),
the adjustments took effect on March 20, -1999 and five (5)
years thereafter.
3. The basic barometer of the jurisdiction of the MTC is
the jurisdictional amount. The jurisdictional amount referred
to is the value of the personal property, estate, or amount of
the demand involved in the civil action or proceedings (Sec.
33[1], B.P. 129, as amended; See for further readings, Cabrera
v. Francisco, C.R. No. 172293, August 28, 2013).
Demand not exceeding P300,000 or P400,000
1. The MTC exercises exclusive original jurisdiction
over civil actions where the value of _the personal prope�ty,
estate or amount of the demand does not exceed P300,000
outside Metro Manila, or not more than P400,000 within Metro
Manila (Sec. 1, R.A. 7691; Sec. 33[1], B.P. 129, as amended).
Where the demand exceeds the amounts mentioned, the
Regional Trial Court has exclusive original jurisdiction (Sec.
19[8], B.P. 129, as amended).
Note: The amount of P300,000 is the result of adjustments
authorized under Sec. 5 of R.A. 7691 as previously discussed.
CHAPTER II 113
JURI S DI CTION AN D VENUE
2. The jurisdictional amount does not include the
following:
(a) interest;
(b) damages of whatever kind;
Jc) attorney's fees;
"1''(d) litig�tion expens�s; and
(e) costs (Sec. 33[1], B.P. 129, as amended; see also
Cabrera v. Francisco, supra).
Although excluded in determining the jurisdiction of
· the court, the above items, however, shall be included in
determining the filing fees (Sec. 33[1], B.P. 129, as amended).
3. In Administrative Circular No. 09-94, it was made
clear that "The exclusion of the term 'damages of whatever
kind' in determining the jurisdictional amount under Sec.
19(8) and Sec. 33(1) of B.P. 129, as amended by R.A. 7691,
applies to cases where the damages are merely incidental to or
o
a consequence of the main cause of action. However, in cases
where the claim for damages is the main cause of action, or
one of the causes of action, the amount of such claim shall be
considered in determining the jurisdiction of the court."
4. In one case, the plaintiff, in the RTC, prayed that
the defendants be made° to pay moral damages in the amount
of P300,000; P50,000 as exemplary damages; P50,000 as
attorney's fees; P20,000 as litigation expenses and costs of
suits. The defendants filed a motion to dismiss and argued
that since the amount of the claim for moral damages was not
more than P300,000, the MTC, not the RTC, has jurisdiction.
All other claims, they contended-, should be excluded from the
computation of the jurisdictional amount.
The issue presented was: Should the amount of moral
damages prayed for in the complaint be the sole basis for
determining which court has jurisdiction or should the total
amount of all the damages claimed regardless of kind and
nature, s1.1-ch as exemplary, nominal damages, attorney's
fees, and other claims be used? The Court held, that based
114 CML PROCEDURE, VOLUME I
THE BAR JJECTURES SERIES
on the allegations of the complaint, it was clear that the main
action was for damages. Hence, the other forms of damages,
attorney's fees and litigation expenses and costs, were not
merely incidental to or consequences of the main action but
constituted
-
the primary relief prayed for. Since . the total _
-
amount claimed was P420,000, the RTC has jurisdiction.
Ruled the Couft:
"x XX The exclusion of th� term damages of whatever
kind in determining · the jurisdictional amount. x x x
applies to cases where the damages are merely incidental
to or consequence of the main cause .of action. However,
in cases where the main claim for damages is the main
cause of action, or one of the causes of action, the amount
of such claim shall be considered in determining the
jurisdiction of the court" (Sante u. Clarauall, G.R. No.
173195, February 22, 2010; italics supplied).
Meaning of interest
In Gomez v. Montalban, 548 SCRA 693, the debtor
expressly agreed to pay the principal amount of the loan, plus
15% monthly interest to the creditor. When the agreed amount
was not paid, the creditor sued for a sum of money in the
RTG. The principal amoun� of the loan was P40,000 incurred
in 1998 but the amount of the demand, per allegation of the
complaint, was P238,000. The latter amount was inclusive
of accrued interest since 1998 up to the time the complaint
was filed. Note that, at the time the complaint was filed, the
amount alleged was still within the jurisdiction of the RTC. It
was only in 2004 when the maximum jurisdictional amount of
P300,000 was applied to the MTG outside Metro Manila.
As to whether or not the interest should be included in
the determination of the jurisdiction of the court, the Supreme
Court ruled that:
XXX
"Since the interest on the loan is a primary and
inseparable component of the cause of action, not merely
incidental thereto, and already determinable at the
CHAPTER II 115
JURISDICTION AND VENUE
time of the filing of the Complaint, it must be included
in the determination of which court has jurisdiction over
petitioner's case. Using as basis the P238,000.00 amount
being claimed by petitioner from respondent for payment
of the principal loan and interest, this Court finds that it
is well within the jurisdictional amount fixed by law for
RTC's."
Totality Rule (Bar 2014; 2015)
t. Under the totality rule, 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[1}, B.P. 129,
as amended) or whether they arose from a single cause of
action or several causes of action (See Pajares v. Remarkable
Laundry and Dry Cleaning, G.R. No. 212690, February 20,
2017).
2. The totality rule presupposes that the various claims
of the same or different parties are allowed to be embodied
in the same complaint, or that the different causes of action,
which are joined, accrue in favor of the same plaintiff/s and
against the same defendant/s and that no misjoinder of parties
is involved. If so, then the total amount of the claims shall
be the basis of the court's jurisdiction and not the amount of
the individual claims. This rule is applied in relation to the
rules on permissive joinder of parties in Sec. 6 of Rule 3 and
the rules on joinder of causes of action under Sec. 5 of Rule
2 (Please refer to discussions in the succeeding chapter; see
also Pantranco North Express, Inc. v. Buncan, 453 SCRA 482,
489).
Illustration: DD owes PP the following: P250,000
representing the balance on the purchase price of a car;
P250,000 based on a simple loan; P275,000 also based on
another loan. All debts are due and a demand to pay went
unheeded. If an action is filed and the causes of action are
joined, the basis of jurisdiction would be the total amount due.
The RTC, in this case, has jurisdiction. If each debt is made
116 CML PR(i)◊EDURE; VOLUME I
THE BAR LECTURES SERIES
the subject of a separate complaint, the MTC, by reason of the
amount, has jurisdiction.
Actions involving personal property
The MTC has exclusive original jurisdiction over civil
actions where the value qf the pers01;1l:l.l property-in controversy
does not exceed P300,000 (outside Metro Manila), or does
not exceed P400,000 in Metro Manila (Sec. 33[1], B.P. 129,
as amended; Bee. 3, R.A. 7691). If the value of the property
exceeds the said amounts, the Regional Trial Court has
jurisdiction (Sec. 19[8], B.P. 129, as amended).
Probate proceedings
1. The MTC has exclusive original jurisdiction over
probate proceedings, testate and intestate, where the gross
value of the estate does not exceed P300,000 outside Metro
Manila or, does not exceed P400,000 within Metro Manila
(Sec. 3, R.A. 7691; Sec. 19[4], B.P. 129, as amended; Sec. 33[1],
B.P. 129, as amended). Where the gross value of the estate
exceeds the amounts mentioned, the Regional Trial Court
has exclusive original jurisdiction (Sec. 19[4], B.P. 129, as
amended).
2. A petition for probate of a will involving an estate
valued at P200,000 falls under the jurisd:i:ction of the MTC.
Bar 1997
Granting provisional remedies
The MTC has exclusive original jurisdiction to grant
provisional remedies in proper cases (Sec. 33[1], B.P. 129, as
amended). This rule presupposes that the MTC has jurisdiction
over the principal action. The power to grant provisional
remedies depends upon which court has jurisdiction over the
principal action.
Delegated jurisdic�ion
1. The MTC also exercises delegated jurisdiction in
cadastral and land registration cases covering lots where
CHAPTER II 117
JURISDICTION AND VENUE
there is no controversy or opposition, or contested lots the
value of which does not exceed Pl00,000, as may be delegated
by the Supreme Court (Sec. 34, B.P. 129; Sec. 4, R.A. 7691). A
delegation of the cases to the MTC need be made by the SC.
2. · The value of the lot shall be ascertained by the (a)
. affidavit of the claim�nt, or (b) agreement qf the respective
:�laimants · if there ire more than one, d:r (c) from the
. corresponding tax declaration of the real property (Sec. 34,
B.P. 129, cis amended by R.A. 7691).
3. The decision of the MTC shall be appealable in the
same manner as the decision of the Regional Trial Court (Sec.
34, B.P. 129, as amended; Sec. 4, R.A. 7691). Hence, the MTC,
acting under its delegated jurisdiction, may be deemed to be
acting as a Regional Trial Court. The decision of the MTC
in cadastral and land registration cases, therefore, shall be
appealable to the Court of Appeals following the procedure in
Rule 41. Bar 2009
4. The jurisdiction is only a delegated one because it
is the Regional Trial Court (formerly Court of First Instance)
which normally has jurisdiction over cadastral and land
registration cases. Without such delegation made by the
Supreme Court, the MTC cannot exercise jurisdiction over
cadastral and land registration case_s.
A relatively recent case held:
"Presently, jurisdiction over an application for
land registration remains with the RTC where the land
is situated, except when such jurisdiction is delegated
by the Supreme Court to the Metropolitan Trial Court,
Municipal Trial Courts, and Municipal ·circuit Trial
Courts under certain circumstances" (City of Dumaguete
u. Philippine Ports Authority, G.R. No. 168973, August
24, 2011).
Special jurisdiction
1. The MTC has also been conferred by law a special
jurisdiction to hear and decide petitions for a writ of habeas
-
 118 CML PRQ,CEDURE, VOLUME I
THE BAR LECTURES SERIES
corpus in the absence of all the Regional Trial Court judges in
the
= province or city (Sec. 35, B.P. 129, as amended).
2. The special jurisdiction includes the authority to
hear and decide applications for bail in criminal cases in the
province or city where the absent Regional Trial Court judges
sit (Sec. 35, B.P. 129, as amended). Bar 2012
�� � �
Summary procedure; small claims cases (Bar 2013; 2014)
. .
The MTC has exclusive jurisdiction over, cases falling
under the 1991 Rules on Summary Procedure (Sec. 36, B.P.
129, as amended) and the Rule of Procedurefor Small Claims
Cases (Sec. 2, A.M. No. 08-8-7-SC).
Actions for forcible entry and unlawful detainer (Bar 2009;
20i4)
l. The MTC has exclusive original jurisdiction over
forcible entry and unlawful detainer cases (Sec. 33[2], B.P.
129, as amended; Sec. 3, R.A. 7691). These are both ejectment
cases, otherwise known as accion interdictal.
- the purpose is recover any land or building by a possessor
2. The issue in unlawful detainer and forcible entry
is possession, not ownership of real property. May the court,
however, resolve an issu� of ownership in either action? The
law on the matter is quite clear. It instructs that when the
defendant, in an unlawful detainer case or a forcible entry
case, raises the question of ownership in his pleadings and
the issue of possession cannot be resolved without deciding
the issue of ownership, the court may resolve the issue
of ownership but only for the purpose of determining the
issue of possession (Sec. 33[2], B.P. 129; as amended; Sec. 3,
R.A. 7691). In other words, when the issue of ownership is
inseparably linked to that of possession, the court may pass
upon that issue to determine who between the parties has the
better right to possess the property (Baleares v. Espanto, G.R.
No. 229645, June 6, 2018). This means that when the court
can resolve the issue of possession without dealing with the
issue of ownership, the court will refrain from resolving the
issue of ownership.
CHAPTER II n,
JURISDICTION AND VENUE
The Court explains that any issue on ownership arising
in forcible entry or unlawful detainer is resolved only
provisionally for the purpose of determining the principal
issue of possession (Echanes v. Spouses Hailar, G.R. No.
203880, August 10, 2016). In other words, the adjudication
of the issue of ownership is not final and binding. The same
is only for the purpose of resolving the.'jssue of ownership.
Otherwise stated/the adjudication of thlissue of ownership is
only provisional, a.nd not a bar to an action between the same
parties involving title to the property (Baleares v. Espanto,
G.R. No. 229645, June 6, 2018).
3. As a reminder, an action for unlawful detainer is one
the purpose of which is to recover possession of real property
from one who illegally withholds possession after the expiration
of his right to hold possession under any contract, express or
implied. The possession by the defendant in unlawful detainer
is originally legal but became illegal due to the expiration
or termination of the right to possess (Bulalacao-Soriano v.
Papina, G.R. No. 213187, August 24, 2016). In forcible entry,
deprived of possession by force, intimidation, threat, strategy
or stealth (See Sec. 1, Rule 70, Rules of Court). The possession
by the defendant in forcible entry is illegal from its inception.
Actions involving title to, possession of or any interest in
real property; meaning
1. An action "involving title to real property" means
that the plaintiffs cause of action is based on a claim that
he owns such property or that he has the legal rights to have
exclusive conj;rol, possession, enj9yment, or disposition of the
same. Title is the "legal link between (1) a person who owns
property, and (2) the property itself' (Heirs of Sebe v. Heirs
of Sevilla, 603 SCRA 395, 404; See also Vda. De Herrera v.
Bernardo, G.R. No. 170251, June 1, 2011; Padlan v. Dinglasan,
694 SCRA 91, 100, March 20, 2013).
"Title" is different from a "certificate of title." The latter
is the document of ownership under the Torrens system of
registration issued by the government through the Register
 CML PROCEDURE, VOLUME I
120
THE BAR'.LECTURES SERIES
of Deeds.' While title is the claim, right or interest in real
property, a certificate of title is the evidence of such claim.
Another way of looking at it is that, while "title" gives the
owner the right to demand or be issued a "certificate of title,"
the holder of a certificate of title does not necessarily possess
valid title to the real property. The issuance of a certificate.
of title' does not give the owner any better title than, what he..
actually has in law. Thus, a::plaintiffs action for cancellation·
or nullification of a certificate of title may only be a necessary
consequence of the defendant's lack of title to real property.
Further, although the certificate of title may have been lost,
burned, or destroyed and later on reconstituted, title subsists
and remains unaffected unless it is transferred or conveyed to
another or subjected to a lien or encumbrance (Heirs of Sebe u.
Heirs of Sevilla, 603 SCRA 395, 404-405).
•
2. Under Sec. 33[3] of B.P. 129 as amended, the MTC
has jurisdiction over actions involving title to, or possession
of real property, or any interest therein, depending on the
assessed value of the property involved. Where the assessed
value of the property does not exceed twenty thousand pesos
(P20,000.00) outside Metro Manila, or does not exceed fifty
thousand pesos (P50, 000. 00) in Metro Manila, it is the MTC
which has jurisdiction. If the assessed value of the property
exceeds such amounts, th� RTC has jurisdiction (Sec. 19[2],
B.P.129, as amended).
The above is a new provision brought about by the
amendments introduced by R.A. 7691. Before the amendments,
such actions, called real actions, with the exception of forcible
entry and unlawful detainer cases, were subject to the
jurisdiction of the RTC. As it stands, under the amendments,
jurisdiction· over real actions is now shared between the MTC
and the RTC depending on the assessed value of the property.
3. One significant Supreme Court decision (Heirs of
Valeriano S. Concha, Sr. u. Spouses Lumocso, 540 SCRA 1),
involving three complaints, incisively discussed the effects
of the changes in the law on jurisdiction, brought about by
R.A. 7691 on actions involving "title to, possession of and any
interest in real property."
CHAPTER II 121
JURISDICTION AND VENUE
The three complaints, filed with the RTC, involved
actions for reconveyance and/or annulment of transfer
certificate of titles which, according to the plaintiffs, were
obtained by the defendants through "fraud, deceit, bad faith,
and misrepresentation." The defendants argued, among
others, that the court had no jurisdiction over the complaints
pursuant to Sec. 19[2] of .B.P. 129, as;;:1mended by R.A. 769�,
thei assessed v�lue of the subject lots being less than P20,000.
The petitioners countered that the nature of their
complaints, were suits for reconveyance and/or annulment of
certificates of title, the subject matters of which are incapable
-0-0
of pecuniary estimation, which, under the law, fall within the
exclusive original jurisdiction of the RTC.
The Court, speaking through Chief Justice Puno, agreed
with the trial court that the common allegations in the three
complaints, were actually actions for reconveyance of real
property. Significantly, the Court declared that the actions for
reconveyance in the subject cases were also actions to remove
cloud on a title (otherwise commonly known as quieting of
title under Sec. 1 of Rule 63) jurisdiction over which would be
determined by the assessed value of the property.
The Court instructed:
"These cases may also be considered as actions to
remove cloud on one;s title as they are intended to procure
the cancellation of an instrument constituting a claim on
petitioners' alleged title which was used to injure or vex
them in the enjoyment of their alleged title.
Being in the nature of actions for reconveyance
_ or actions to remove cloud on one's title, the applicable
law to determine which court has jurisdiction is Section
19(2) of B.P. 129, as amended by R.A. No. 7691, viz.:
Section 19. Jurisdiction in Civil Cases. - Regional
Trial Courts shall exercise exclusive original jurisdiction:
XXX
(2) In all civil actions which involve the title to,
or possession of, real property, or any interest therein,
where the assessed value of the property involved
 122 CIVIL f�{)CEDURE, VOLUME I
THE BAR LECTURES SERIES
exceeds Twenty thousand pesos (P20,000.00) or for civil
actions in Metro Manila, where such value exceeds Fifty
thousand pesos (P50,000.00) except actions for forcible
entry into and unlawful detainer of lands or buildings,
original jurisdiction over which is conferred upon the
Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts;
' is onez the subject matter of which was incapabl�
:,.,;;·
XXX
In the cases at bar, it is undisputed that the subject
lots are situated in Cogon, Dipolog City and their assessed
values are less than P20,000.00 x x x
XXX
Hence, the MTC clearly has jurisdiction over
the instant cases.
Petitioners' contention that this case is one that is
incapable of pecuniary estimation under the exclusive
original jurisdiction of the RTC pursuant to Section 19(1)
of B.P. 129 is erroneous." (Supra, pp. 15-16; emphasis
supplied).
The Court continued, thus:
"In a number of cases, [the Court] ha[s] held that
actions for reconveyance of or for cancellation of title to
or to quiet title over. �eal property are actions that fall
under the classification of cases that involve 'title to,
or possession of, real property, or any interest therein'
(Supra, p. 16; Emphasis supplied).
To emphasize the distinction between the old and the
new laws, the Court, through Chief Justice Puno, succinctly
explained: - -
XXX
"The original text of Section 19(2) of B.P. 129 as well
as its forerunner, Section 44(b) of R.A. 296, as amended,
gave the RTCs (formerly courts of first instance) exclusive
original jurisdiction "[i]n all civil actions which involve
the title to, or possession of, real property, or any interest
therein, except actions for forcible entry into and unlawful
CHAPTER II 123
JURISDICTION AND VENUE
detainer of lands or buildings, original jurisdiction over
which is conferred upon Metropolitan Trial Courts,
[MTCs], and Municipal Circuit Trial Courts (conferred
upon the city and municipal courts under R.A. 296, as
amended)." Thus; under the old law, there was no
substantial effect on jurisdiction whether a case
of pecuniary estimation, url.(ier Section. 19(1) of B.:e:
129 or one involving title to property under Section 19(2).
The distinction between the two classes became
crucial with the amendment introduced by R.A. No.
7691 in 1994 which expanded the exclusive original
jurisdiction of the first level courts to include "all
civil actions which involve title to, or possession
of, real property, or any interest therein where the
assessed value of the property or interest therein does not
exceed Twenty thousand pesos (P20,000.00) or, in civil
actions in Metro Manila, where such assessed value does
not exceed Fifty thousand pesos (P50,000.00) exclusive
of interest, damages of whatever kind, attorney's fees,
litigation expenses and costs." Thus, under the present
law, original jurisdiction over cases the subject matter
of which involves "title to, possession of, real property or
any interest therein" under Section 19(2) of B.P. 129 is
divided between the first and second level courts, with
the assessed value of the real property involved as the
benchmark. This amendment was introduced to "unclog
the overloaded dockets of the RTCs which would result in
the speedier administration of justice." (Supra, pp. 17-18;
Emphasis made by the Court).
In a subsequent case involving a determination of
whether or an action is incapable of pecuniary estimation or a
real action, the Court had the occasion to clarify the anew the
distinction between the old and the new law on jurisdiction.
The Court explained:
If th[e] case were decided under the original text
of Batas Pambansa 129 or even under its predecessor,
Republic Act 296, determination of the nature of the case
as a real action would have ended the controversy. Both
real actions and actions incapable of pecuniary estimation
foll within the exclusive original jurisdiction of the RTC.
 124 CML PROCEDURE, VOLUME I CHAPTER II 125
THE B4R"LECTURES SERIES JURISDICTION AND VENUE

But, with the amendment of B.P. 129 by R.A. 7691, title to, or possession of, real property, or any interest therein.
the distinction between these two kinds of actions has It further held that original jurisdiction over cases involving
become pivotal. The amendment expanded the exclusive
such subject matters is divided between the first and second
original jurisdictjon of the first level courts to include real
actions involving property with an assessed value of less level courts (MTC and RTC), depending on the assessed value
than P20,000.00 xxx" (Heirs of Sebe v. Heirs of Sevilla, of the real property.
603 SCRA 395,.402-403). 5. , Prior to Concha, the Court, through Justice Chico-
:,,�
Nazarid:had ruled: ;;,-
4:· The ruling in the 'Valeriano Concha cas� treat
ed
in the immediately · preceding number, was adop "The mortgage of the subject property to the Bfl.nk
ted in a
subsequent controversy. In San Pedro v. Asdalp,, of Commerce, annotated on the Spouses San Pablo's
593 SCRA
397, the respondents filed with the Metropolitan TCT, · constitutes a cloud on their title to the subject
Trial Court
(MeTC) of Quezon City, Branch 42, a complaint property, which may, at first, appear valid and effective,
against the
petitioners for accion reinvindicatoria, quieting but is allegedly invalid or voidable for having been made
of title and without their knowledge and authority as registered
damages, with prayer for preliminary mandator
y injunction owners. We thus, have established that the case filed
involving a property alleged to have an asses
sed value of by the spouses San Pablo before the MTC is actually an
P32,100. action for quieting of title, a real action, the jurisdiction
The petitioners, for their part, filed a moti over which is determined by the assessed value of the
on to property. The assessed value of the subject property
dismiss said complaint on the ground that the
MeTC had located in Mandaue City, as alleged in the complaint, is
no jurisdiction over the subject matter of the actio
n, as the P4,900.00, which aptly falls within the jurisdiction of the
subject of litigation was incapable of pecuniary
estimation. MTC" (Bank of Commerce v. Spouses San Pablo, Jr., 522
The motion to dismiss was denied. The denial was
anchored SCRA 713, 723-724; Emphasis ours).
on the relevant provisions of B.P. 129, as amended,
declaring
that the MeTC has exclusive original jurisdicti 6. In a case involving friar lands, the Court, speaking
on over actions
involving title to or possession of real property through Justice Bersamin, clearly instructed that the original
of small value.
The petitioners; motion for reconsideration was and exclusive jurisdiction over a complaint for quieting of title
also denied.
and reconveyance belongs to either the Regional Trial Court
The RTC sustained the MeTC ruling, stating [RTC] or the Municipal Trial Court [MTC] (Heirs of Spouses
that, in
accordance with Sec. 33(3) of R.A. 7691, amending Reterta v. Spouses Mores, 655 SCRA 580, 585) using the
B.P. 129,
the MeTC had jurisdiction over the complaint assessed value as basis (Supra, p. 598).
for accion
reinvindicatoria, as it involves recovery of owne
rship and 7. A more r:ecent pronouncement of the Court, however,
possession of real property, located in Quezon
City, with an is worth revisiting. In Spouses Sabitsana, Jr. v. Muertegui,
assessed value not exceeding P50,000.
G.R. No. 181359, August 5, 2013, the Court declared:
The Supreme Court, in sustaining the lower courts,
merely reiterated its ruling in Heirs of Valeriano S. Concha, "On the question of jurisdiction, it is clear under the
Sr. u. Spouses Lumocso, 540 SCRA 1, which had previously Rules that an action for quieting of title may be instituted
in the RTCs regardless of the assessed value of the
ruled that an action for quieting of title over real property, like property in dispute. Under Rule 63 of the Rules of Court,
an action for reconveyance of or cancellation of title to real an action to quiet title to real property or remove cloud
property, falls under the classification. of cases that involve
•
therein may be brought in the appropriate RTC."
126 CML P�QQEDURE, VOLUME I
THE B� LECTURES SERIES
In Sabitsana, the Court observed that the action for
quieting of title was :filed to prevent a cloud being cast upon
the plaintiffs application for title and to obtain a declaration
of his rights. In this sense, ruled the court, "the action is one for
declaratory relief, which properly falls within the jurisdiGtion
of the RTC pursuant to Rule 63 �f the Rules:» Note that in
this case, it is;evident that the ruling was analyzed based o_h
f
the purpose fo: which th� action was filed. Since the purpose
was to obtain ''.a declaration of rights," it was treated as orie
for declaratory relief, hence, 'within the jurisdiction of the
Regional Trial Court. It should also be noted that Sabitsana
ruling was rooted on Rule 63 of the Rules of Court, not on the
mandatory provisions of B.P. 129, as amended.
8. A previous pronouncement of the Supreme Court is
enlightening, thus:
"The second paragraph of Section 1, Rule 63 of
the Rules of Court specifically refers to (D an action
for the reformation of an instrument, recognized under
Articles 1359 to 1369 of the Civil Code; (2) an action to
quiet title, authorized by Articles 476 to 481 of the Civil
Code; and (3) an action to consolidate ownership required
by Article 1607 of the Civil Code in a sale with a right
to repurchase. These three remedies are considered
similar to declaratory telief because they also result in
the adjudication of the legal rights cif the litigants, often
without the need of execution to carry the judgment into
effect.
"To determine which court has jurisdiction over the
actions identified in the second paragraph of Section 1,
Rule 63 of the Rules of Court, said provision must be read
together with those of the Judiciary Reorganization Act of
1980, as amended.
"It is important to note that Section 1, Rule 63 of
the Rules of Court does not categorically require that an
action to quiet title be filed before the RTC. It repeatedly
uses the word may [which means] that an action for
0
quieting of title may be brought under [the] Rule on
petitions for declaratory relief, and a person desiring to
file a petition for declaratory relief may x x x bring an
CHAPTER II 127
JURISDICTION AND VENUE
action in the appropriate Regional Trial Court. The use
of the word may in a statute denotes that the provision
is merely permissive and indicates a mere possibility, an
opportunity or an option.
"In contrast, the mandatory provision of the
Judiciary Reorgani�ation Act cif 1980, as· amended,
, uses the word shall and explicitly requires th�J:MTC to
: exercise exclusive original jurisdiction ovei·,all civil
actions which involve title to or possession of real property
' where the assessed va1ue does not exceed P20,000.00
x x x" (Malana u. Tappa, G.R. No. 181303, September 17,
2009; Italics supplied).
9. The pronouncements in Malana v. Tappa were
reiterated by the Court in a more recent case. Here, the
Court explained, by way of reminder, that for the purpose of
determining jurisdiction, the trial court must interpret and
apply the law on jurisdiction in relation to the averments
or allegations of the ultimate facts in the complaint. For
example, the RTC has jurisdiction over the cause of action for
injunction because it is one incapable of pecuniary estimation.
But the same cannot be true in the case of quieting of title,
which is in the nature of a real action - that is, an action that
involves the issue of ownership or possession of real property,
or any interest in real property - in view of the expansion of
· the jurisdiction of the first level· courts under RA. 7691. As
such, the determination of which trial court had jurisdiction
over the real action is dependent on the assessed value of the
property in dispute. Since in the controversy at hand, the
complaint did not contain any averment of the assessed value
of the property, such failure left the trial court bereft of any
basis to determine which court could validly take cognizance·
of the cause of action for quieting of title (Salvador v. Patricia,
Inc., C.R. No. 195834, November 9, 2016).
Basis is assessed value (Bar 2008; 2009)
1. The basis of jurisdiction in real actions is the assessed
value of the property involved as alleged in the complaint
(Salvador v. Patricia Inc., G.R. No. 195834, November 9, 2016).
 128 CML PRQQ,EDURE, VOLUME I
THE BAR LECTURES SERIES
Illustrative of the application of the law is the case of Geonzon
Vda. De Barrera v. Heirs of Vicente Legaspi, 565 SCRA 192;
The facts point to a complaint for reconveyance of
possession of real property with preliminary injunction and
damages filed with the Regional Trial Court. One of the
defenses raised by the defendants was the court's lack of
- jurisdictiori over th«t complaint/ the asses�ed value �f the
subject property being only Pll, 160 as reflected in the
uncontroverted tax declaration. The trial court, in its decision,
rejected the contention of the defendant holding that since
the complaint alleged the estimated value of the land as
P50,000, such allegation must prevail over the assessed value
of Pll, 160 relied upon by the defense. What determines the
nature of the action and the jurisdiction over the complaint,
said the trial court, are the facts alleged in the complaint and
not those alleged in the answer of the defendants. The Court
of Appeals affirmed the trial.court's disposition on the issue of
jurisdiction over the subject matter.
In a subsequent petition for review on certiorari, the
Supreme Court held:
"The subject land has an assessed value of Pll, 160 as
reflected in Tax Declaration No. 7565, a common exhibit
of the parties. The bare· claim of respondents that it has
a value of P50,000 thus.fails. The case, therefore, falls
within the exclusive original jurisdiction of the municipal
trial court.
It was error then for the RTC to take cognizance of
the complaint based on the allegation that 'the present
estimated value [of the land is] P50,000' x x x The
estimated value, commonly referred to as the fair market
value is entirely different from the assessed value of the
property" (Italization ours).
2. One later case is, likewise, illuminating. Here,
the plaintiffs filed, in the Regional Trial Court, an action
for annulment of documents, reconveyance and recovery of
possession of two lots which had a total assessed value of
P9, 910 . The complaint also prayed for damages. The plaintiffs
CHAPTER II 129
JURISDICTION AND VENUE
claimed that they owned the subject lots but, through fraud,
the defendant allegedly succeeded in having them sign the
documents (affidavits of quitclaim) conveying the lots to him.
Being illiterate, they relied on the explanation of the defendant
that what they signed were "deeds of real estate mortgage"
covering a loan that they got from him. Although it appeared
· that the dqcuments, which turned out to be, deeds conveying
··ownership over the t\vo lots, we.re notarizEid, the plairitiffs
claimed that they did. not appear before any notary public.
Using the affidavits of quitclaim, the defendant applied for
and obtained free patent titles covering the two lots.
The RTC dismissed the case for lack of jurisdiction over
the subject matter because accordingly, the ultimate relief
sought by the plaintiffs was the reconveyance of title and
possession over two lots that had a total assessed value of less
than P20, 000. The RTC concluded that the complaint should
have been filed with the Municipal Trial Court.
In their motion for reconsideration, which was denied,
the plaintiffs pointed out that the RTC should have classified
their complaint as one for annulment of documents, an action
incapable of pecuniary estimation, and not one involving title
to or possession of real property because, in their complaint,
they asked the court, not only to resolve the dispute over
ownership and possession of the lots, but also to rule on the
validity of the affidavits of quitclaim, the subsequent deeds
of confirmation of sale, and the titles over the properties.
The plaintiffs claimed that their action was, first, for the
declaration of nullity of the documents of conveyance that
the defendant tricked them into signing and, second, for the
reconveyance of the certificate of title for the two lots that the
defendant succeeded in getting. The subject of their action is,
they conclude, incapable of pecuniary estimation. Thus, the
RTC should try the case as provided in Sec. 19[ 1] of B.P. 129,
as amended.
The Court identified the issue as whether or not the
action involving the two lots valued at less than P20, 000 falls
within the jurisdiction of the RTC.

130 CML ��QCEDURE, VOLUME I
THE BAR LECTURES SERIES
The Court, in ruling on the issue, started with a
restatement of the principle that whether a court has
jurisdiction over the subject matter of a particular action is
determined by the plaintiffs allegations in the complaint
and the principal relief he seeks in .the light of the law that
apportions the jurisdiction <;>f courts.
The Court.'found, on 1le basis of the allegations in the
complaint, that the action is not about the declaration of the
' . .
nullity of the documents or'the reconveyance to the plaip.tiffs
of the certificates of title covering the two lots. The Court
emphasized that, "[T]hese would merely follow after the trial
court shall have first resolved the issue of which between
the contending parties is the lawful owner of such lots, the
one also entitled to their possession. Based on the pleadings,
the ultimate issue is whether or not defendants defrauded
the plaintiffs of their property by making them sign the
documents of conveyance rather than just a deed of real estate
mortgage to secure their debt to him. The action is, therefore,
about ascertaining which of these parties is the lawful owner
of the subject lots, jurisdiction over which is determined by
the assessed value of such lots."
Here, as observed by the Court, the total assessed value
of the two lots subject of the suit was only P9,910, an amount
which does not exceed the jurisdictional thresliold value of
P20,000 fixed by law (Heirs of Sebe v. Heirs of Sevilla, 603
SCRA 395, 402-403).
3. When parties disagree on the correct boundary
of adjacent lots, the controversy must be treated as one for
owuership, not mere possession. The Court in one Gase
explained:
"x x x [A] boundary dispute must be resolved in
the context of accion reivindicatoria, not an ejectment
case. The boundary dispute is not about possession, but
-
encroachment, that is, whether the property claimed
x x x formed part of the plaintiffs property. A boundary
dispute cannot be settled summarily under Rule 70 of the
Rules of Court, the proceedings under which are limited to
CHAPTER II 131
JURISDICTION AND VENUE
unlawful detainer and forcible entry. In unlawful detainer,
the defendant unlawfully withholds the possession of
the premises upon the expiration or termination of his
right to hold such possession under any contract, express
or implied. The defendant's possession was lawful at
• the beginning, becoming unlawful only because of the
expiration or •. termination of his righ� of possession. In
forcible entry, the possession of the (lefendant is .illegal
from the very beginning, and the issue centers on which
between the plaintiff and the defend.ant had the prior
possession de facto" (Manalang v. Bacani, G.R. No.
156995, January 12, 2015;Javier v. De Guzman, G.R. No.
186204, September 2, 2015).
The need to allege the assessed value; when failure to allege
assessed value is not fatal
1. The Court in Quinagoran v. Court of Appeals, 531
SCRA 104, 113-114, unequivocally ruled that the complaint
has to allege the assessed value of the property. A complaint,
ruled the Court in Quinagoran, "must allege the assessed
value of the property x x x to determine which court has
jurisdiction over the same. This is because the nature of the
action and which court has original and exclusive jurisdiction
over the same is determined by the material allegations of the
complaint, the type of relief prayed for by the plaintiff and the
law in effect when the action is filed x x x" (See also Padlan v.
Dinglasan, 694 SCRA 91, 100-101, March 20, 2013).
More recent pronouncement echoes the same rule
governing real actions. In real actions, held the Court, "[T]he
complaint must allege the assessed value of the real property
_ subject of the complaint or the interest thereon to d�termine
which court has jurisdiction over the action. This is required
because the nature of the action and the court with original
and exclusive jurisdiction over the same is determined by the
material allegations of the complaint, the type of relief prayed
for by the plaintiff, and the law in effect when the aGtion is
filed, irrespective of whether the plaintiffs are entitled to
some or all of the claims asserted therein" (Supapo v. Spouses
de Jesus, G.R. No. 198356, April 20, 2015).
132 CML PRp.GEDURE, VOLUME I
THE BAA LECTURES SERIES
2. "x x x If the assessed value is not alleged in
the complaint, the action should be dismissed for lack of
jurisdiction. The reason behind this rule is that the trial court
is not afforded the means of determining from the allegations
of the basic pleading whether jurisdiction_ over the subject
matter of the action pertains to it or to another court. After all,
c3urts cannot take judl�ial notice-of the asse�sed or market
��]ue of lan'd�" (CablinJ�. Dangc�lan, G.R. Nb'. 187696, June
15, 2016). Note: In cases of land . not declarec . l for taxation
purposes, the value of the property shall be d�termined by
the assessed value of the adjacent lot (Sec. 33[3], B.P. 129 as
amended; Cabling u. Dangcalan, ibid.).
3. Note, however, that the non-inclusion of the assessed
value on the face of the complaint is not fatal if attached to the
complaint is a tax declaration showing the assessed value of
the property. Annexes to the complaint have been held to be
part of, and should be considered together with the complaint
in determining the jurisdiction of the court. The ruling that
the court cannot take judicial notice of the assessed value of
the land does not apply to a case in which attached to the
complaint is a tax declaration or some other document showing
the assessed value of said land (Bangko Sentral ng Pilipinas
u. Legaspi, G.R. No. 2059(!6, March 2, 2016).
Allegation of assessed value is immaterial on appeal
The amount involved is immaterial for purposes of the
RTC's appellate jurisdiction. Cases decided by the MTC are
generally appealable to the RTC irrespective of the amount
involved. Sec. 22 of B.P. 129 as amended vests upon the RTC
the exercise of appellate jurisdiction over all cases decided by
the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts in their respective territorial
jurisdictions.
One case explained: "It is true that under the prevailing
law, x x x in actions involving title to or possession of real
property or any interest therein, there is a need to allege the
assessed value of the real property subject of the action, or
. CHAPTER II 133
JURISDICTION AND VENUE
interest therein, for purposes of determining which court
x x x has jurisdiction over the action. However, it must be
clarified that this requirement applies only if these courts are
in the exercise of their original jurisdiction x x x the assessed
value of the disputed lot is immaterial for the purpose of
· x x x appeilate jurisdiction (Heirs of Arrienda u. Kalaw; G.R.
N_o. 204314, April 6, 20f6).
Inquiring into the primary relief or ultimate objective of the
complaint
l. Jurisprudence has always stressed the need to
inquire into the material allegations in the complaint and the
character of the relief sought in order to determine the nature
and subject matter of a petition or complaint, irrespective of
whether the petitioner or complainant is entitled to any or all
such reliefs (Vda. De Herrera u. Bernardo, 650 SCRA 87, 94).
Hence, it was held that where the ultimate objective
of the plaintiffs is to obtain title to real property, it should
be filed with the proper court having jurisdiction over the
assessed value of the property subject thereof (Barangay
Piapi u. Talip, 469 SCRA 409, 413). Also, a complaint brought
primarily to enforce a contractual right to repurchase a real
property previously sold to the buyer, is an action for specific
performance l;lnd thus, must be filed with the Regional Trial
Court. Bar 201 7
2. In one case, the Court sustained the Court of Appeals
when it ruled that an action for reconveyance of real property,
as gleaned from the allegations of the complaint, located in
Bolinao, Pangasinan, with an assessed value of P54,370, is
cognizable by the RTG, the assessed value being over P20,000.
Here, the Court looked into the material allegations of the
complaint which showed the primary purpose of the action
as one for reconveyance of real property (De Vera u. Spouses
Santiago, G.R. No. 179457, June 22, 2015).
3. In a case of a more recent vintage, the Court ruled
that a complaint denominated as one for "Breach of Contract
& Damages" is neither an action for specific performance nor
 134 CML PRP,QEDURE, VOLUME I
THE Biffi LECTURES SERIES
a complaint for rescission of a contract where the complaint
primarily prays for the payment of damages as a means of
enforcing the penal clause embodied in the contract between
the parties (See Pajares v. Remarkable Laundry and Dry
Cleaning, G.R. No. 212690, February 20, 2017).
4. In another case, although the action was .denomi­
nated as one for '.'1cancellation of deeds of sale, transfer
certificates of title and of the joint venture agreement, since
the complaint, bas�d on the allegations therein, actually
sought for the recovery of real properties, the complaint, held
the Court, involved a real action and, thus, the assessed value
should be considered in computing the fees (Serrano v. Delica,
465 SCRA 82, 88-89).
5. In another case, a complaint for resc1ss1on or
annulment of a contract was held to be one not susceptible
of pecuniary estimation even if it may eventually result in
the recovery of real property, taking into consideration the
allegations and the nature of the relief sought (De Leon v.
Court of Appeals, 278 SCRA 94 as cited in Home Guaranty
Corporation v. R-II Builders, Inc., 652 SCRA 649, 657).
6. In one case, a complaint was filed with the MTC
for reconveyance of real property (with an assessed value of
P12, 400) with declaration of nullity of original certificate of
title (OQT), having been allegedly obtained by fraud. On the.
issue of whether or not the case should have been filed with
the RTC because it involved a subject matter incapable of
pecuniary estimation, the Court held that the same was a real
action because the primary relief was to recover ownership
of real property. Considering its assessed value, the MTC
had properly ex�rcised jurisdiction over the action (Maslag v.
Monzon, G.R. No. 174908, June 17, 2013).
Accion publiciana; accion reivindicatoria (Bar 2010)
1. Accion publiciana is a plenary action for recovery
-
of possession in an ordinary civil proceeding, in order to
determine the better and legal right to possess, independently
of title. The objective of the plaintiffs in accion publiciana is to
recover possession only, not ownership. However, where the
CHAPTER II 135
JURISDICTION AND VENUE
parties raise the issue of ownership, the courts may pass upon
the issue to determine who between the parties has the right
to possess the property. This adjudication, however, is not a
final and binding determination of the issue on ownership; it is
only for the purpose of resolving the issue of possession where
the issue on ownership is inseparably linked to the issue of
possession. The adjµdication q( the issue pf ownership, being
provisional, is not a:bar to an action betw�en the same.parties
involving title to the property (Catindig v. Vda. De Meneses,
641 SCRA 350, 359-360).
Accion publiciana is also used to refer to an ejectment
suit where the cause of dispossession is. not among the
grounds for forcible entry and unlawful detainer, or when
possession has been lost for more than one year and can no
longer be maintained under Rule 70 of the Rules of Court
(Modesto v. Urbina, 633 SCRA 383, 391). In other words, if at
the time of the filing of the complaint more than one year had
elapsed since defendant had turned plaintiff out of possession
or defendant's possession had become illegal, the action will
be an accion publiciana (Velasquez v. Cruz, G.R. No. 191479,
September 21, 2015; for further readings, See Zaragoza v.
floilo Santos Truckers, Inc., G.R. No. 224022, June 28, 2017).
2. An accion reinvindicatoria is a suit which has for
its object the recovery of possession over the real property as
owner. It involves recovery of ownership and possession based
°
on said ownership.
The determining jurisdictional element for accion
reinvindicatoria is the assessed value of the property in
question. For properties outside Metro Manila, the RTC
has jurisdiction if the assessed value exceeds P20, 000, and
the MTC, if the assessed value is P20, 000 or below. An
assessed value can have reference only to the tax rolls in the
municipality where the property is located, and is contained in
the tax declaration. It is elementary that the tax declaration
indicating the assessed value of the property enjoys the
presumption of regularity as it has been issued by the proper
government agency (See Hilario v. Salvador, 457 SCRA 815,
827).

136 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
3. The rule that accion publiciana lies within the
exclusive original jurisdiction of the Regional Trial Court,
regardless of the value of the property, no longer holds true.
As things now stand under R.A. 7691, a distinction must be
made between those properties t:µe assessed. value of w:hich
does not exceed P20,000, if outside Metro Manila, and P50,000,
if.Within Metto Manila (in which caie, an accii>n publician,a
should be filed with the MTC). Where the a;sessed vaiue
is greater than the amounts mentioned, the Regional Trial
Court has jurisdiction (Quinagoran v. Court of Appeals, 531
SCRA 104, 112-114). Bar 2010
4. In a later case, decided in accordance with
Quinagoran, the Court sustained the filing of a complaint
for accion publiciana in the MeTC of Caloocan City on the
basis of the allegation that the assessed value of the subject
lot, located in Metro Manila, is only P39,980. Given that the
plaintiffs duly complied with the jurisdictional requirements,
the Court held that the MeTC of Caloocan properly acquired
jurisdiction over the complaint for accion publiciana (Supapo
v. Spouses De Jesus, G.R. No. 198356, April 20, 2015).
In a more recent case, the Court of Appeals surprisingly
ruled, despite jurisprudence to the contrary, that the MTC
had no jurisdiction over a complaint for accion publiciana.
The Court, in clear language struck down the proriouncement
and held: "It is no longer good law to consider that all cases
for accion publiciana lie with the RTC regardless of the value
of the property." The jurisdiction of the court over said action
would now be determined by the assessed value of the property
(Cabling v. Dangcalan, G.R. No. 187696, June 15, 2016).
5. It must be emphasized that the jurisdiction of the
court, under R.A. 7691, over an action involving title to or
possession of land is not determined by the market value of
•
the property but by the assessed value thereof. The assessed
value of real property is the fair market value of the real
property multiplied by the assessment level. It is synonymous
to taxable value. The fair market value is the price at which
a property may be sold by a seller, who is not compelled to
CHAPTER II 137
JURISDICTION AND VENUE
sell, and bought by a buyer, who is not compelled to buy (See
Hilario v. Salvador, 457 SCRA 815, 826).
6. The law should now be clear at this point. The MTC
has exclusive original jurisdiction over civil actions involving
title to or possession of real property, or any interest therein,
where the assessed value pf the property or interest therein
does not excee'd P20,000:putside ME:itro Manila or P50,000
in Metro Manila. The amounts mentioned are exclusive of
interest, damages of whatever kind, attorney's fees, litigation
expenses, and costs (Sec. 33{3}, B.P. 129, as amended). 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 (Sec. 3, R.A. 7691; Sec. 33{3}, B.P. 129, as
amended). Bar 2008
The above rule excludes the real actions of forcible entry
and unlawful detainer which are within the exclusive original
jurisdiction of the MTC, regardless of the assessed value of
the property involved (Sec. 33{2}, B.P. 129, as amended).
°
Real actions (actions involving title to, possession of, or
'
any interest in real property) are also incapable of pecuniary
estimation
. ... 1. One must be reminded that jurisprudence does
·•not deny that actions like reconveyance of· real property,
quieting of title to real property, accion publiciana, accion
reivindicatoria, foreclosure of real estate mortgage, partition
of real property and similar actions, are also actions incapable
of pecuniary estimation. They are, however, also real actions.
_
The landmark case of Russel 1;1_ Vestil, 304 SCRA 738, 745-
746, acknowledged that actions involving title to, possession
of or any interest in real property in Sec. 33[3] of B.P. 129 are
also incapable of pecuniary estimation. However, because of
the new law, the assessed value of the property should now be
considered in determining jurisdiction if actions incapable of
pecuniary estimation are also real actions.
138 CMLPROCED URE,VOLUMEI
THE BAR;LECTURES SERIES
The Court, in very succinct language, declared:
"While actions under Sec. 33[3] of B.P. 129 as
amended are also incapable of pecuniary estimation,
the law specifically mandates that they are cognizable
by the MTC, METC, or MCTC where the assessed value
of the real property involved X X X. If the value exceeds
P20,0Q0.00 or P50;000.00 as th:e case may; be, it is th�:
Region;al Trial Coti:rts which have jurisdiction under Sec.>
19[2] xx x" (Underscoring ours).
2. Thus, it may be gleaned from jurisprudence that if
the action is real, based on the allegations in the complaint,
even if the same be one incapabJe of pecuniary estimation,
the assessed value of the property �ecomes determinative of
jurisdiction. Consider also the following pronouncements by
the Court:
(a) "Based on the amendments introduced by
R.A. 7691, real actions no longer reside under the
exclusive original jurisdiction of the .RTCs. Under the
said amendments, Metropolitan Trial Courts (MeTCs),
Municipal Trial Courts (MTCs) and Municipal Circuit
Trial Courts (MCTCs) now have jurisdiction over real
actions if the assessed value of the property involved does
not exceed P20,000.00, or in Metro Manila, where such
assessed value does not exceed P50,000.00. Otherwise, if
the assessed value exceeds P20,000.00 or P50,000.00, as
the case may be, jurisdiction is with the RTC" (Heirs of
Arrienda v. Kalaw, G.R. No. 204314, April 6, 2016),
(b) that while civil actions which involve title to, or
possession of, real property, or any interest therein, are
also incapable of pecuniary estimation x x x the court's
jurisdiction will be determined by the assessed value
of the property involved. (Roldan v. Barrios, C.R. No.
214803, April 23, 2018).
Jurisdiction over appeals from judgments of the MTC
Judgments of the MTC shall be appealable to the Regional
Trial Courts (Secs. 22 and 38, B.P. 129 as amended; Sec. 1,
Rule 40, Rules of Court).
CHAPTERII 139
JURISDICTION AND VENUE
J. Jurisdiction of the Regional Trial Courts
(Bar 2016)
Exclusive original jurisdiction of the RTC
Under Sec. 19 of B.P. 129, as am,ended, and other
:pertinent provisions of the same law, the. Regional Trial
'exclusive original jurisdiction
Courts shall exercise "' over the
•·
following cases:
1. All civil' actions in which the subject of the
litigation is incapable of pecuniary estimation;
2. All civil actions which involve title to, or
possession of, real property or an interest therein, where
the �s�essed value of such property involved exceeds
P20,000 outside Metro Manila, or for civil actions in
Metro Manila where such value exceeds P50,000;
Note: Excepted from the above rule are actions for
forcible entry and unlawful detainer of land or buildings,
exclusive original jurisdiction over which is conferred
upon the MTC.
3. All actions in admiralty and maritime
jurisdiction where the demand or claim exceeds P300,000
outside Metro Manila, or in Metro Manila, where such
demand or claim exceeds P400,000; Bar 2010
4. All matters of probate, both testate and
intestate, where the gross value of the estate exceeds
P300,000 outside Metro Manila or, in probate matters in
Metro Manila, where such gross value exceeds P400,000;
5. In all actions involving the contract of marriage
and marital relations;
Note: This jurisdiction is deemed modified by Sec.
5 of R.A. 8369, the law which established the Family
Courts. However, under Sec. 17 of R.A. 8369, in. areas
where there are no Family Courts, the cases referred to
in Sec. 5 of the law shall be adjudicated by the Regional
Trial Court.
 140 CIVILPR08EDURE,VOLUME I
THE BM LECTURES SERIES
6. All cases not within the exclusive jurisdiction of
any court, tribunal, person or body exercising judicial or
quasi-judicial functions;
Note: This jurisdiction is often described as the
'general' jurisdiction of the RTC making it- a court of
'gEi!?:eral jurisdiction.' . �;
-
,"
7. All civil actions and special proceedings falling
within the exclusive original jurisdiction of the Juvenile
and Domestic Relations Court an:d of the Court of
Agrarian Relations as now provided by law; and
Note: The jurisdiction of the RTG over cases under
the exclusive original jurisdiction of the Juvenile and
Domestic Relations Court is subject to R.A. 8369, the law
establishing Family Courts.
8. All other cases in which the demand or the
value of the property in controversy exceeds P300,000
outside Metro Manila, or in Metro Manila where the
demand exceeds P400,000, exclusive of interest, damages
of whatever kind, attorney's fees, litigation expenses and
costs.
Concurrent original jurisdiction of the Regional Trial Court
' designated by the Supreme Court to handle exclusively
1. Concurrent• and original · jurisdiction with the
Supreme Court in actions affecting ambassadors, other public
ministers, and consuls (Sec. 21[2], B.P. 129, as amended; Sec.
5, Art. VIIL Constitution of the Philippines).
2. Concurrent and original jurisdiction with the
Supreme Court and Court of Appeals in petitions for certiorari,
prohibition, and mandamus against lower courts arid bodies
and in petitions for quo warranto and habeas corpus (Sec.
21[1], B.P. 129; Sec. 9[1], B.P. 129).
Appellate jurisdiction
1. The Regional Trial Court exercises appellate
jurisdiction over all cases decided by Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial
CHAPTER II 141
JURISDICTION AND VENUE
Courts in their respective territorial jurisdictions (Sec. 22,
B.P..129, as amended).
2. The decisions of the Regional Trial Court in the
exercise of its appellate jurisdiction shall be appealable by
petition for review to the Court of Appeals. The appeal shall.
be given due cours'9 only when the petition shows prima faCie
that the lower court has committed an t�rror of fatt or law
that would warran:t a reversal or modifi.2ation of the decision
or judgment sought to be reviewed (Sec. 22, B.P. 129, as
amended).
3. In the exercise of its appellate jurisdiction, the RTC
does not have the authority of the Court of Appeals in Sec. 9
of B.P. 129 as amended, to try cases, conduct hearings or new
trials, receive evidence and such other acts to resolve factual
issues. The basis of the decision of the Regional Trial Court
in a case appealed to it shall be (a) the entire record of the
proceedings had in the court of origin, and (b) such memoranda
and/or briefs as may be submitted by the parties or required
by the court (Sec. 22, B.P. 129, as amended).
Special jurisdiction to try special cases
Certain branches of the Regional Trial Co_urt may be
criminal cases, juvenile and domestic relations cases, agrarian
<
cases, urban and land reform cases which do not fall under the
jurisdiction of quasi-judicial bodies and agencies, and/or such
other special cases as the Supreme Court may determine in
the interest of a speedy and efficient administration of justice
(Sec. 23, B.P. 129, as amended).
Jurisdiction over intra-corporate controversies
1. By virtue of Item 5.2 of Sec. 5 of The Securities
Regulation Code (R.A. 8799), jurisdiction over cases
enumerated in Sec. 5 of P.D. 902-A, was transferred from
the Securities and Exchange Commission to the "Courts of
general jurisdiction or the appropriate Regional Trial Court."
The same provision also provided that the Supreme Court
142 CIVIL PROCEDURE, VOLUME I
THE BAR tECTURES SERIES
may designate the Regional Trial Court branches that shall
exercise jurisdiction over said cases.
In other words, "[U]pon the enactment of R.A. 8799,
jurisdiction over intracorporate disputes, including derivative
suits, is now vested . in the RTC's designated as special
commercial courts by thi1, Court pursuant to AM. No. 00-1)-
03'.SC promulgated on November 2i; 2000" (For&st Hills Golf
arid Country Club, Inc. v. Fil-Estate, Inc., G.R. No. 206649,
July 20, 2016; Ku v. RCBC Securities, G.R. -No. 219491,
October 17, 2018).
It was held that the word "or" in Item 5.2, Sec. 5 of R.A.
8799 was intentionally used by the legislature to particularize
the fact that the phrase, "the Courts of Genera.I jurisdiction"
is equivalent to the phrase, "the appropriate Regional Trial
Court." In other words, ruled the Court, "the jurisdiction of
the SEC over the cases enumerated under Section 5 of PD
902-A was transferred to the courts of general jurisdiction,
that is to say (or, otherwise known as), the proper Regional
Trial Courts" (Gonzales v. GJH Land, Inc., G.R. No. 202664,
November 10, 2015).
The cases under Sec. 5 of P.D. 902-A, the exclusive and
original jurisdiction over which were transferred from the
Securities and Exchange' Commission to the Regional Trial
··
Court are the" following:
(a) Devises or schemes employed by or any acts, of
the board of directors, business associates, its officers or
=
partnership, amounting to fraud and misrepresentation
which may be detrimental to the interest of the public and/
or of the stockholders, partners, members of associations
or organizations registered with the Commission;
(b) Controversies arising out of intra-corporate or
partnership relations, between and, among stockholders,
members or associates; between any or all of them and the
corporation, partnership or association of which they are
stockholders, members or associates, respectively; and
between such corporation, partnership or association and
CHAPTER II 143
. JURISDICTION AND VENUE
the state insofar as it concerns their individual franchise
or right to exist as such entity;
(c) Controversies in the election or appointments
of directors, trustees, officers or managers of such corpo­
rations, partnerships or associations; and
(d) ..Petitions .of corpor1:1.tions, partnerships or
associations to be declared in the state of suspension:'of
payments in cases where the 'corporation, partnership
or association possesses sufficient property to cover all
its debts but foresees the impossibility of meeting them
when they respectively fall due or in cases where the
corporation, partnership or association has rio sufficient
assets to cover its liabilities, but is under the management
of a Rehabilitation Receiver or Management Committee.
2. One case gives light to the jurisdiction of the RTC
in intra-corporate controversies. Here, respondent purchased
a condominium unit which was covered by a duly registered
certificate of title. Later, the petitioner demanded from the
respondent, payment for alleged unpaid association dues and
assessments. Respondent disputed this demand, claiming
that he had been religiously paying his dues, shown by the
fact that he was previously elected president and director of
the petitioner. Consequently, the respondent was prevented
from exercising his right to vote and be voted for during the
2002 election of the petitioner's Board of Directors, allegedly
because he was a delinquent member of the petitioner.
This prompted respondent to demand from petitioner an
explanation why he was considered a delinquent payer
despite the settlement of the obligation. When the petitioner
failed to make the explanation requested, he filed a complaint
for damages against the petitioner in the RTC, acting as a
regular court.
One of the main issues sought to be resolved by the
Supreme Court was whether or not the controversy inv:olves
intra-corporate issues as would fall within the jurisdiction of
the RTC sitting as a special commercial court, an ordinary
action for damages within the jurisdiction of regular courts,
144 CML PROC�,.PURE, VOLUME I
THE BAR'LECTURES SERIES
or one falling under the jurisdiction of the Housing Land Use
Regulatory Board (HLURB).
The Court's explanation is illuminating, thus:
"In determining whether a dispute constitutes an
intra-corporate controversy, the Court uses two tests,
namely, the relationship test.: and the nature of the
contrdtJersy test.
"An intra-corporate controversy is . one. which
pertains to any of the following relationships: (1) between
the corporation, partnership or association and the public;
(2) between the corporation, partnership or association
and the State insofar as its franchise, permit or license
to operate is concerned; (3) between the corporation,
partnership or association and its stockholders, partners,
members or officers; and (4) among the stockholders,
partners or associates themselves. Thus, under the
relationship test, the exist�nce of any of the above intra­
corporate relations makes the case intra-cor:porate.
"Under the nature of the controversy test, the
controversy must not only be rooted in the existence of
an intra-corporate relationship, but must as well pertain
to the enforcement of the parties' correlative rights and
obligations under the Corporation Code and the internal
and intra-corporate regulatory rules of the corporation.
In other words, jurisdiction should be determined by •
considering both the relationship of the parties as well as
the nature of the question involved.
"Applying the two tests, we find and so hold that the
case involves intra-corporate controversy. It obviously
arose from the intra-corporate relations between the
parties; and the questions involved pertain to their rights
and obligations under the Corporation Code and matters
relating to the regulation of the corporation.
"Admittedly, petitioner is a condominium corpo­
ration duly organized and existing under Philippine
laws, charged with the management of the Medical Plaza
Makati. Respondent, on the other hand, is the registered
owner of Unit No.1201 and is thus a stockholder/member
of the condominium corporation. Clearly, there is an
CHAPTER II 145
JURISDICTION AND VENUE
intra-corporate relationship between the corporation and
a stockholder/member.
"The nature of the action is determined by the
body rather than the title of the complaint. Though
denominated as an action for damages, an examination
of the allegations made by respondent in his complaint
shows\hat the case principally dwells on the propriety
of the.1ssessment made by petitioner agairi�t respondent
as weli as the validity of petitioner's act in preventing
respondent from participating in the election of the
corporation's Board of Directors. Respondent contested
the alleged unpaid dues and assessments demanded by
petitioner.
"The issue is not novel. The nature of an action
involving any dispute as to the validity of the assessment
of association dues has been settled by the Court x x x
that the dispute as to the validity of the assessments is
purely an intracorporate matter between petitioner and
respondent and is, thus, within the exclusive jurisdiction
i;:,f the RTC sitting as a special commercial court x x x"
(Medical Plaza Makati Condominium Corporation v.
Cullen; C.R. No. 181416, November 11, 2013; For further
readings, see also Dy Teban Trading, Inc. v. Dy, C.R. No.
185647, July 26, 2017; See also Tumagan v. Kairuz, C.R.
No. 198124, September 12, 2018; Ku v. RCBC Securities,
C.R. No. 219491, Octo_ber 17, 2018).
3. Under the relationship test, where the controversy
involves shareholders of record of the corporation, even where
the ownership of shares by one of them is questioned, the
matter is an intra-corporate controversy. Under the nature of
the CQntroversy test, where the purpose of the litigation is to
prevent a stockholder from inspecting the corporate books on
the ground that he is not the true owner of his alleged shares,
the controversy is intra-corporate (Belo Medical Group, Inc. v.
Santos, G.R. No. 185894, August 30, 2017).
4. There are no intra-corporate relations between the
parties where the plaintiff petitioner is neither a stockholder,
partner, member or officer of the defendant corporation.
Moreover, the questions involved neither pertain to the parties'

146 CIVIL PROGEDURE, VOLUME I
THE BAA LECTURES SERIES
rights and obligations under the Corporation Code, if any, nor
to matters directly relating to the regulation of the corporation.
The action for a sum of money, specific performance and
damages springs from the parties' relationship as an investor
and a securities broker. The case i� not an intra-corpora,te
dispute and, instead, is a mere ordinary civil action (Ku v. .
RCB.C Securitie�/G.R. No. 219491, Oct-gber 17, 20!8).
Effect on juriscliction when an intra-corporate case is .
erroneously assigned by raffle to a regular branch of the
Regional Trial Court
In one case, the plaintiffs filed an intra-corporate case
with the Office of the Clerk of Court in the RTC of Muntinlupa
City, which is the official station of the designated special
commercial court. The case, however, was raffled to a branch
of the RTC which is not a special commercial court. Later,
the defendants filed a motion to dismiss on the ground of lack
of jurisdiction over the subject matter, pointing ou:t that the
case involves an intra-corporate dispute which should be tried
by the special commercial court of Muntinlupa City, not by a
regular RTC. The court agreed and dismissed the case.
The essential issue brought to the Supreme Court for its
resolution is whether or not the court erred in dismissing the
case for lack of jurisdiction over the subject matter.
In reversing and setting aside the order of dismissal of
the case by the trial court, the Court ruled that the erroneous
raffling of the case to a regular branch was only a matter
of procedure. Having filed the intra-corporate case with the
Office of the Clerk of Court of the RTC of Muntinlupa City,
which is also the official station of the special commercial
court, the court had acquired jurisdiction over the subject
matter or the nature of the action upon the filing of the
complaint. The Court further explained that the objective
behind the designation of special commercial courts is to
promote expediency and efficiency in the exercise of the RTC's
jurisdiction over the cases enumerated under Sec. 5 of P.D.
902-A Such designation has nothing to do with the statutory
CHAPTER II . 147
JURISDICTION AND VENUE
conferment of jurisdiction because the power to define,
prescribe and apportion jurisdiction is, as a general rule, a
matter of legislative prerogative.
In such a scenario in which the case was erroneously
raffled to a regular court, the proper course of action, ruled
the Court, was not for the commercial case to be dismissed
; but tp refer the base to the Executive Judge for re-docketing as
a co�mercial case and as;igning the same to thfdesignated
special commercial court. bocket fees· already paid shall be
duly credited, and any excess, refunded (Gonzales v. GJH
Land, Inc., G.R. No. 202664, November 10, 2015; See also Forest
Hills Golf and Country Club, Inc. v. Fil-Estate Properties, Inc.
v. Dy, G.R. No. 206649, July 20, 2016; Dy Teban Trading, Inc.,
G.R. No. 185647, July 26, 2017).
RTC is a court of general jurisdiction
1. Sec. 19[6] of B.P. 129, as amended, includes as part
of the exclusive original jurisdiction of the RTC, cases "not
within the exclusive jurisdiction of any court, tribunal, person
or body exercising judicial or quasi-judicial functions."
On the basis of the above provision, jurisprudence
declares that unlike the Municipal Trial Court, which is a court
of limited jurisdiction because it can only take cognizance of
cases expressly provided by law, the Regional Trial Court is a
court of general jurisdiction because all cases, the jurisdiction
of which is not specifically provided by law to be within the
jurisdiction of any other court falls within the jurisdiction of
the Regional Trial Court (Durisol Philippines, Inc. v. Court of
Appeals, 377 SCRA 353; Sec. 19[6], B.P. 129; See also Gonzales
v. GJH Land, Inc., supra).
2. The designation of certain courts as special
commercial courts is only to streamline the workload of the
Regional Trial Courts. Such courts designated as special
commercial courts are still considered courts of general
jurisdiction. The designation does not, in a way, limit their
jurisdiction to hear and decide cases of all nature, whether
civil, criminal or special proceedings. Such courts still
 148 CMLPROCEDURE,VOLUMEI
THE BAR .LECTURES SERIES
have the 'jurisdiction to hear and decide cases of specific
performance (Majestic Plus Holding International, Inc. v.
Bullion Investment and Development Corporation, G.R. No.
201017, December 5, 2016),
This designation was not made by statute but only by an
internal Supreme Court rule under its authority to promulgate
rules governing matters of procedure an� its constitutional
mahdate to supervi;e the:administration 6:f all cburts and the
personnel thereof. Certainly, an internal. rule promulgated
by the Court0 cannot go beyond the commanding statute. But
as a more fundamental reason, the designation of Special
. Commercial Courts is, to stress, merely an incident related to
the court's exercise of jurisdiction, which, as first discussed,
is distinct from the concept of jurisdiction over the subject
matter. The RTC's general jurisdiction over ordinary civil cases
OO
is, therefore, not abdicated by an internal rule streamlining
court procedure (Majestic Plus Holding International, Inc. v.
Bullion Investment and Development Corporation, ibid.).
; amount of docket fees.
3. The designation of a branch of the RTC as a special
commercial court does not diminish its power as a court of
general jurisdiction. It could still take cognizance of a petition
for injunction (Concorde Condominium, Inc. v. Baculio, G.R.
No. 203678, February 17, 2016). In another case, it was also
held that the fact th�n an action for injunction was raffled to,
and heard by, an RTC sitting as a commercial court is more an
issue of procedure than one of jurisdiction. Where a party has
submitted to the authority of the RTC without objecting to the
procedural impropriety, an objection to the same is deemed
waived and cannot [be] raised for the first time on appeal (Dy
Teban Trading, Inc. v. Dy, G.R. No. 185647, July 26, 2017).
2009) 0
Actions irn:::apable of pecuniary estimation (Bar ·1997; 2003;
1. It is, at this point, necessary to reiterate a consistent
refrain in jurisprudence: That the nature of the action is not
determined by what is stated in the caption of the complaint
but by the allegations in the complaint and the relief prayed
149
CHAPTER II
JURISDICTION AND VENUE
for. The ultimate objective of the complaint must be inquired.
into. For instance, an action for reconveyance of real property
will not be · deemed one incapable of pecuniary estimation
where the ultimate objective is to obtain title to the property.
The Court, thus, held:
. . "Wh,ere the ultimate .dbjective of the plaintiffs_;/?( x x
is to obtain title to real property, it should be filed .in the
proper court having jurisdiction over the assessed value
of the property subject thereof' (Barangay Piapi v. Talip,
469 SCRA 409, 413).
2. The reader is advised to always look into the facts
of the case and determine the primary purpose of the action.
This is because an action denominated as one for specific
performance may not really be one for specific performance
but one for recovery or acquisition of ownership of property.
This analysis will have effect on venue, jurisdiction and the
An early case clearly explained, thus:
"Although appellant's complaint is entitled to be one
for specific performance, yet the fact that he asked that
a deed of sale of a parcel of land situated in Quezon City
be issued in his favor and that a transfer certificate of
title covering said land be issued to him shows that the
primary objective and nature of the action is to recover
. the parcel of land itself because to execute in favor of
appellant the conveyance requested there is need to make
a finding that he is the owner of the land which in the
last analysis resolves itself into an issue of ownership"
(National Steel Corporation v. Court of Appeals, G.R. No.
123215, February 2, 1999).
In other words, in order to determine if an action is one
incapable of pecuniary estimation, it is necessary to ascertain
the nature of the principal remedy sought. If it is primarily
for the recovery of a sum of money, it is capable of pecuniary
estimation. Jurisdiction over the action would then depend
upon the amount of the claim. Where the basic issue is
something other than the right to recover a sum of money, or
 CML PROGEDURE, VOLUME I
150
THE BAR'LECTURES SERIES
a-
the money claim is merely incidental to the principal relief,
the action is incapable of pecuniary estimation (Russel v.
Vestil, 304 SCRA 739, 744; Barangay San Roque v. Heirs of
Pastor, 334 SCRA 127, 132-133; Ungria v. Court of Appeals,
654 SCRA 314, 324-325). Examples: An action for reformation
of an instrument; rescission of a contract; action for specific
performance. ':i ::c ' :
Hence, where the main purpose of filing the action is to
collect the commission allegedly promised· by the defendarit
should the plaintiffs be able to sell a particular lot, and also
for recovery of compensation for services rendered, the action
is principally for the collection of a sum of money and not one
incapable of pecuniary estimation (Cabrera v. Francisco, G.R.
No. 172293, August 28, 2013).
3. In Genesis Investment, Inc. v. Heirs of Ebarasabal,
G.R. No. 181622, November 20, 2013, the action filed was
denominated as one for "Declaration of Nullity of Documents,
I
Recovery of Shares, Partition, Damages and Attorney's Fees."
The case involved a parcel of land with an assessed value
of Pll,990 . One important issue that reached the Supreme
Court was whether or not the action is primarily one which
is incapable of pecuniary estimation or one which primarily
affects title to, possession of, or an interest in real property. If
it be the former, the Regional Trial Court has jurisdiction. If it
be the latter, either the Regional Trial Court or the Municipal
Court has jurisdiction, depending on the assessed value of the
property.
To resolve the issue, the Supreme Court used as criterion
the ascertainment of the nature of the principal .action or
remedy sought. The Court found that the principal relief
sought was the nullification of the Extrajudicial Settlement
with Sale, a relief that is one other than the recovery of a sum
of money hence, an action incapable of pecuniary estimation,
jurisdiction over which is lodged in the Regional Trial Court.
The Court found the case to be a "joinder of causes of action
which comprehends more than the issue of partition of or
recovery of shares or interest over the real property in question
CHAPTER II 151
JURISDICTION AND VENUE
but includes an action for declaration of nullity of contracts
and documents which is incapable of pecuniary estimation"
(Genesis Investment, Inc. v. Heirs of Ebarasabal, supra).
4. A complaint for expropriation is incapable of
pecuniary estimation. An expropriation suit does not involve
tlle recovery of money. Rather it deals with the �xercise by the
go'verm�ent of its autho�ity an'd right to take private property
for public use (Barangay San Roque v. Heirs of Pastor, 334
SCRA 127, 133). The subject of the expropriation suit is the
government's exercise of eminent domain, a matter that is
incapable of pecuniary estimation (Barangay San Roque v.
÷
Heirs of Pastor, ibid.).
5. An action seeking to annul a resolution of a
government-owned and controlled corporation is an action
incapable of pecuniary estimation (Polomolok Water District
v. Polomolok General Consumers Association, Inc., 636 SCRA
647, 652-653).
6. An action for the annulment of an extrajudicial
foreclosure sale of teal property with an assessed value
of P50, 000 located in Laguna is incapable of pecuniary
estimation. Bar 2000
7. An action for specific performance ,is one generally
. v. Vestil,
considered incapable of pecuniary estimation (Russel
.
304 SCRA 738, 745).
The amount of damages that may be claimed in addition
to the prayer for specific performance is not determinative
of jurisdiction. Thus, an action for specific performance and
damages of P2 00, 000 is cognizable by the Regional Trial
Court even if the amount of damages sought to be recovered is
within the jurisdiction of the Municipal Trial Court.
Where, however, the demand is in the alternative, as
in an action to compel the defendant to deliver the house by
completing its construction or to pay a certain sum, the action
is one that is capable of pecuniary estimation (Cruz v. Tan, 87
Phil. 627, 629). Thus, an action for specific performance, or,
in the alternative, for damages, in the amount of Pl80, 000 is
 152 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
one capable of pecuniary estimation because of the alternative
prayer which is for a sum of mohey. Here, the amount of
damages is determinative of jurisdiction. Bar 1997
8. If, as gleaned from the complaint, the principal
relief sought is for the court to issue an injunction against the
adverse p&rty a,nd .his representatives to permanently enjoin
them froid preventing the survey of''the subject land, the
i
complaint is not a possessory action but one for injunction. As
such, the subject matter of litigation is'incapable of pecuniary
estimation and properly cognizable exclusively by the Regional
Trial Court under Sec. 19(1) of B.P. 129, as amertded by R.A.
7691 (Bokingo v. Court of Appeals, 489 SCRA 521, 532-533;
see also Republic v. Principalia Management and Personnel
Consultants, Inc., G.R. No. 198426, September 2, 2015).
→ to do
9. An action for a writ of injunction is within the
jurisdiction of the Regional Trial Court. It is an action
incapable of pecuniary estimation. Bar 1997; 2009
-
10. An action for the replevin of a motorcycle valued
at Pl50,000 is capable of pecuniary estimation. The basis of
jurisdiction is the value of the personal property sought to be
recovered. The stated value is within the jurisdiction of the
MTC. Bar 1997 A SU it between
µ tight pleaded
to held
party
a-
property by a 3to
11. An. action for interpleader is capable of pecuniary
estimation where the subject matter is either real or personal
property. If the subject of interpleader is real property, then
the jurisdictional amount is determined by the assessed value
of the land. If it be personal property, then the value of the
property.
However, if the subject matter of the case is the
. .
performance of an obligation, the subject matter is one
incapable of pecuniary estimation and the MTC has no
jurisdiction (See Feria and Noche, Provisional Remedies
and Special Civil Actions, 2007, p. 147). Hence, an action
for interpleader to determine who between the defendants is
entitled to receive the amount of P190,000 from the plaintiff
is within the jurisdiction of the MTC. Bar 1997
CHAPTER II 153
JURISDICTION AND VENUE
12. One early case decided by the Court is Russel u.
Vestil, 304 SCRA 738. This case was filed in September 199.4,
barely five months after R.A. 7691 took effect. The. action
was denominated as one for "Declaration of Nullity and
Partition" and filed with the RTC under the theory that the
same is incapable of pecuniary estimation under Sec. 19[1]
of :a/P. 129, as ameµded by R.A. 7691. Th�. document, which
the. plaintiffs sought.to be annulled, was the· "I>�claration of
Heirs and Deed of Confirmation of Previous Oral Partition"
executed among the defendants, a document which, according
to the plaintiffs, had the effect of excluding them from their
rights over the property as co-heirs. The defendants filed a
motion to dismiss the complaint harkirtg on the court's alleged
not
lack of jurisdiction over the subject matter, the land-sought to
to do or
be partitioned having an assessed value of only P5,000 which
under Sec. 33[3] of B.P. 129, as amended by R.A. 7691, falls
within the jurisdiction of the MTC.
tetum or recovery In deciding the issue of jurisdiction, the Court resorted
to an examination of the pertinent portions of the complaint
of possession
which, according to the Court, disclosed that the primary relief
sought by the plaintiffs was to have the document in question
annulled. Citing previous pronouncen;tents, the Court stressed
2pm ties to determine
matter of claim
in Russel v. Vestil that in determining whether an action is
a
one the subject matter of which is incapable of pecuniary
-
· estimation, it is imperative to ascertain "the nature of the
principal action or remedy sought." Since the main purpose of
the plaintiffs was to have the document annulled, the action
filed was one incapable of pecuniary estimation. The Court,
likewise, observed that, "[W]hile the complaint also prays for
the partition of the property, this is just incidental to the main
O
action, which is the nullity of the -document above-described.
-
It is axiomatic that jurisdiction over the subject matter of a
-
case is conferred by law and is determined by the allegations
• in the complaint and the character of the relief sought x x x"
(Russel v. Vestil, 304 SCRA 738, 745-746).
It is significant that the Court, in Russel v. Vestil, did not
consider as erroneous what was implied from the contention
of the defendants: That an action for partition should consider
154 CML PROCEDURE, VOLUME I
THE BARt,ECTURES SERIES
the assessed value of the property in determining jurisdiction.
What the Court merely declared was that, since partition was
not the main, but merely an incidental part of the action, the
main relief sought, i.e., the annulment of the document was
determinative of jurisdiction.
13. In a later case, although the end re�ult of the
plaintiffs claim was the tra:psfer of the subject property ..to his
nam�'. the• suit was still essentially for specific performance, teal action capable
a pet::;onal action, because it sought from the defendant the of pecuniary
execution of a deed of absolute sale based on a contract which estimation
they had previously made. Here, the action is primarily to
enforce the contract to execute a deed of sale (Spouses Saraza v.
Francisco, G.R. No. 198718, November 27, 2013). Similarly, an
action for specific performance to enforce a right to repurchase
lots previously sold to the buyer in accordance with the Public
Land Act is an action incapable of pecuniary estimation (Heirs
of Bautista v. Lindo, G.R. No. 208232, March 10, 2014). In
other words, not all actions involving real,property are real
actions. Where the main objective of the suit, as gleaned from
the allegations in the complaint and the character of the relief
sought, is to compel the adverse party to perform a specific
act, like the execution of written instruments pursuant to a
previous agreement, the action is one for specific performance →
-
(Specified Contractors & Development, Inc. v. Pobocan, G.R. _
No. 212472, January 11, 2018).
An action for specific performance to compel the defendant
to execute a deed of conveyance covering a parcel of land
with an assessed value of P19,000 is an action incapable of
pecuniary estimation and is cognizable by the Regional Trial
Court bee.a use the main issue is whether or not there is a right
to compel specific performance (Suggested Answer, UP Law
Center). Bar 2003; 2017
14. In one case, an action for specific performance and
damages was filed by the buyers of a lot in the RTC against
the seller praying that the latter be ordered by the court to
execute a deed of sale over the property in their favor. Upon
realizing, hov,,ever, that the property had already been sold
CHAPTER II 155
JURISDICTION AND VENUE
by the seller to a third person and that the latter had already
caused the issuance of a transfer certificate of title in her nam:e,
the plaintiff amended the complaint to specific performance,
reconveyance and damages. The amended complaint also
impleaded the third person as additional defendant and
prayed that the seller be ordered to execute a deed of sale
• in their favor, tliat the new certificate.',: of title issued in the,,;
ihame of the addition�! defendant be c·anceiied and that the·•
property be reconveyed to them. The Court ruled that the •
-
primary purpose· of the plaintiffs, in the amended complaint,
was to secure their claimed ownership and title to the subject
property. The purpose qualifies the case as a real action and
0
not one for specific performance (Spouses Trayvilla v. Sejas,
G.R. No. 204970, February 1, 2016). Hence, the assessed value
should be considered to determine the court with jurisdiction.
15. Settled jurisprudence considers some civil actions
as incapable of pecuniary estimation, namely: (a) action for
specific performance; (b) action for support which will require
the determination of the civil status; (c) right to support of
the plaintiff; (d) annulment of decisions of lower courts; (e)
rescission or reformation of contracts; (f) interpretation of a
'
to do contractual stipulation (Heirs of Bautista v. Lindo, supra).
This ruling presupposes that the enumerated actions are the
primary purposes of the complaints based on th�ir material
allegations.
16. A complaint for collection of an agent's compensation
and commission in the sale of a parcel of land is principally
for the collection of a sum of money. It is neither an action
incapable of pecuniary estimation or a real action. Jurisdiction
should, hence, be based on the amount of the claim (Cabrera v.
Francisco, G.R. No. 172293, August 28, 2013).
17. Where the allegations in the complaint indicate
that the action is one for reconveyance of real property, the
same may be filed with the Regional Trial Court or Munjcipal
Trial Court depending on the assessed value of the property
involved (See Toledo v. Court of Appeals, G.R. No. 167838,
August 5, 2015).
156 CMLPROCEDURE,VOLUMEI
THE BAR'LECTURES SERIES
18. · In connection with actions incapable of pecuniary
estimation, the following reminders of the Court are highly
instructive:
"A review of the jurisprudence of this Court indicates
that in determining whether an action is one the subject
matter of which is incapable of pecuniary estimation,
this Court has adopted the criterion of first ascertaining
the nature of the princip'al action or reni�dy sciught.
Necessarily, the determination must be done. on a case­
to-case basis, depending on the facts and circumstances
of each" (Ruby Shelter Builders and Realty Development
Corporation u. Formaran IIL 578 SCRA 283, 305; citations
omitted).
Action for partition of real property
The MTC has jurisdiction over an action for partition
of real property with an assessed value of PS,080. A motion
to dismiss on the ground that the action is one incapable
of pecuniary estimation was correctly denied by the MTCC
because contrary to the defendant's contention, "the MTCC has
jurisdiction to take cognizance of real actions or those affecting
title to real property, °
or for the recovery of possession, 0or for
the partition or condemnation of, o or foreclosure of a mortgage
on real property" (Barrido u. Nonato, G.R. No. 176492, October
20, 2014).
Action for foreclosure of real estate mortgage
Foreclosure of real estate mortgage is a real action. Hence,
it is the assessed value of the property which determines the
court's jurisdiction. Where the assessed value of the property
is only P13,380, the MTC has jurisdiction, not the RTC. The
need for a case-to-case basis determination. While Russel u.
Vestil, included foreclosure as one of those actions incapable of
pecuniary estimation, the same case also declared that under
B.P. 129, as amended, where the action involves title to, or
possession of real property or any interest therein, the court's
jurisdiction will be determined by the assessed value of the
property involved (Roldan u. Barrios, G.R. No. 214803, April
23, 2018).
CHAPTER II 157
JURI S DI CTIONAND VENUE
Action to enforce the payment of damages under a penal
clause
A complaint primarily seeking to enforce the accessory
obligation contained in the penal clause is actually an action
for .damages capable of pecuniary estimation. The argument
that the complaint is one incapable of pecuniary estimation
cannot be i:;pstaip.ed (See Pajares -p. Rerrfarkable Laundry _and·.
Dry Cleaning, G:R. No. 212690, February 20, 2017). ..
Extent of trial court's jurisdiction when acting as a probate
court (Bar 2011)
1. Jurisprudence teaches that the jurisdiction of the
trial court as a probate court relates only to matters having to
do with the probate of the will and/or settlement of the estate
of deceased persons, but does0 not extend to the determination
of questions of ownership that arise during the proceedings
(Ignacio u. Reyes, G.R. No. 213192, July 12, 2017). All that
the court could do is to determine whether they should or
should not be included in the inventory or list of properties
to be administered. For the purpose of determining whether
a certain property should or should not be included in the
inventory, the probate court may pass upon the title thereto
but such determination is not conclusive and is subject to a
final determination in a separate action (Cuizon u. Ramolete,
129 SCRA 495, ,;199; Bolisay u. Alcid, 85 SCRA 213, 220;
Pacioles, Jr. u. Chuatoco-Ching, 466 SCRA 90, 97-98).
2. However, if the interested parties are all heirs, or
the parties consent to the assumption of jurisdiction by the
probate court and third parties are not prejudiced or injured
thereby, the probate court may decide questions on ownership
(Coca u. De Pangilinan, 17-1 Phil. 246; Cunanan, u. Amparo, 80
Phil. 227). Bar 2011
K. Jurisdiction of the Family Courts
Under R.A. 8369, the Family Courts shall have exclusive
original jurisdiction over the following civil cases:
L Petitions for guardianship, custody of children
and habeas corpus involving children;

158 CIVIL P�O,,,CEDURE, VOLUME I
THE BAR LECTURES SERIES
2. Petitions for adoption of children and the
revocation thereof;
3. Complaints for annulment of marriage, decla­
ration of nullity of marriage and those relating to sta­
tus and property relations of husband and wife or those
living together under different statµs and agreements,
and petitions '.for dissolution of confii.gal partnership of
gams;
4. Petitfons for support and/or acknowledgment;
5. Summary judicial proceedings brought under
the provisions of E.O. No. 209, otherwise known as the
"Family Code of the Philippines";
6. Petitions for declaration of status of children
as abandoned, dependent or neglected children, petitions
for voluntary or involuntary commitment of children,
the suspension, termination or restoration of parental
authority and other cases cognizable under P.D. 603,
E.O. 56 (Series of 1986) and other related laws;
7. Petitions for the constitution of the family
home;
Rtc
8. Cases against minors cognizable under the
Dangerous Drugs Act, as amended;
9. Violations of R.A. 7610, otherwise known as
the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act':· and
10. Cases of domestic violence against:
a. W9men - which are acts of gender-based
violence that results, or are likely to result, in
physical, sexual or psychological harm or suffering
to women; and other forms of physical abuse such
as battering or threats and coercion which violate
a woman's personhood, integrity and freedom
movement; and
b. Children - which include the commission
of all forms of abuse, neglect, cruelty, exploitation,
CHAPTER II 159
JURISDICTION AND VENUE
violence, discrimination and all other conditions
prejudicial to their development.
If an act constitutes a criminal offense, the accused or
batterer shall be subject to criminal proceedings and the cor-
. responding penalties. If any question involving any of the.
above matters should arise asJm inGident in any case pending
in the regular courts, said incident shall be determined in that
court (Sec. 5, R.A. 8369).
In areas where there are no Family Courts, the above­
enumerated cases shall be adjudicated by the Regional Trial
Court (Sec. 17, R.A. 8369).
L. Jurisdiction of Shari'a Courts
Shari'a courts; types
l. The Shari'a courts were created under Art. 137 of
P.D. 1083 dated February 4, 1977. Their creation, as stated in
Art. 2 of the Decree, is a recognition of "the legal system of the
Muslims in the Philippines as part of the law of the land and
seeks to make Islamic institutions more effective."
2. The courts created under the Decree are the
(a) Shari'a District Courts, and the (b) Shari'a Circuit Courts
-
Mtc
(Art. 137, P.D. 1083). Under the same article, the Shari'a courts
-
and the personnel thereof are subject to the administrative·
supervision of the Supreme Court. (For further readings, see
The Municipality of Tangkal v. Balindong, G.R. No. 193340,
January 11, 2017).
3. The Shari'a District judges receiv8 the same
compensation qnd enjoy the same privileges as the judges of
the Regional Trial Courts (Art. 142, P.D. 1083). Shari'a Circuit
Court judges receive the same compensation and enjoy the
same privileges as judges of Municipal Trial Courts (Art. 154,
P.D. 1083).
Original _jurisdiction of Shari'a District Courts
By virtue of Art. 143 of P.D. 1083, the Shari'a District
Court shall have exclusive original jurisdiction over:

160
CML PJ!.q,CEDURE, VOLUME I
THE BAR LECTURES SERIES
(a) All cases involving custody, guardianship,
legitimacy, paternity and filiation arising under the Code
of Muslim Personal Laws;
(b) All cases involving disposition, distribution
and settlement of the estate of the deceased Muslims,
probate of wills, issuance of letters of.administration or
or
appointm@nt of:administrators execihtors regardless:6£
, tra'.n:smitted, as well as, such :" memoranda, · b�iefs �r oral
the nature or the aggregate value of the property;
(c) Petitions for the decl�ratio:U of absence and
death and for the cancellation or correction of entries in
the Muslim Registries mentioned in Title VI of Book Two
of the Code;
(d) All actions arising from customary contracts in
which the parties are Muslims, if they have not specified
which law shall govern their relations; and
(e) All petitions for mandamus, prohibition, in­
junction, certiorari, habeas corpus, and all other auxilia­
ry writs and processes in aid of its appellate jurisdiction.
Concurrent jurisdiction of Shari'a District Courts
Concurrently with existing civil courts, the Shari'a
District Court shall have original jurisdiction over:
(a) Petitions by Muslims for the constitution of
a family home, change of name and commitment of an
insane person to an asylum;
(b) All other personal and real actions not men -
tioned in paragraph (d) of the immediately preceding
topic, wherein the parties involved are· Muslims except
those for forcible entry and unlawful detainer, which
shall fall under the exclusive original jurisdiction of the
Municipal Circuit Court; and
(c) All special civil actions for interpleader or
declaratory relief wherein the parties are Muslims or the
property involved belongs exclusively to Muslims (Art.
143[2], P.D. 1083).
CHAPTER II 161
district
JURISDICTION AND VENUE
Appellate jurisdiction of Shari'a District Courts it
1. Shari'a District Courts shall have appellate jurisdic­
tion
-
over all cases tried in the Shari'a Circuit Courts within
their territorial jurisdiction.
2. The Shari'a District Court shall decide every
ca�e appealed to it on th� basis. of the evidence and records
arguments as the parties'may submit (Art. 144, ?.D. 1083).
Finality of decisions
Under.Art. 145 of the decree, the decisions of the Shari'a
District Courts, whether on appeal from the Shari'a Circuit
Court or not, shall be final. Nothing herein contained shall
affect the original and appellate jurisdiction of the Supreme
Court as provided in the Constitution.
Original jurisdiction of Shari'a Circuit Courts
The Shari'a Circuit Courts shall have exclusive original
jurisdiction over:
(1) All cases involving offenses defined and pun­
ished under P.D. 1083.
(2) All civil actions a1;1d proceedings between parties
who are Muslims or have been married in accordance
with Art. 13 of P.D. 1083 involving disputes relating to:
(a) Marriage;
(b) Divorce recognized under the Code (P.D.
1083);
(c) Betrothal or breach of contract to marry;
(d) Customary dower (mahr);
(e) Disposition and distribution of property
upon divorce;
(f) Maintenance and support, and consolatory
gifts, (mut'a); and
 162 CNIL PRQCEDURE, VOLUME I
THE B:AR'LECTURES SERIES
(g) Restitution of marital rights.
(3) All cases involving disputes relative to commu­
nal properties (Art. 155, P.D. 1083).
Rules applicable
The Shari'.? courts shall be gover:ned by special rµles of
procedure· as ·the Supreme Court may promulgate (Art. 148
- by the parties. This is not so in a civil case where improper
and Art. 158, P.D. 1083).
II. VENUE (Rule 4)
Meaning of venue
Venue is the place, or the geographical area, in which a
court with jurisdiction may hear and determine a case (Black's
Law Dictionary, 5th Ed., 1396), or the place where a case is to
be tried (20 Am Jur 2d, §89, 1965 Ed.; For additional readings,
see City of Lapu-Lapu v. Philippine Economic Zone Authority,
G.R. No. 184203, November 26, 2014).
Venue in civil cases; venue in criminal cases
1. Venue relates only to the place of trial or the
geographical location in which an action or proceeding should
be brought. It is intended'to accord convenience
o to the parties,
as it relates to the place of trial. It does not equate to the
jurisdiction of the court (Dolot v. Paje, G.R. No. 199199, August
27, 2013).
2. Venue is procedural and not substantive. In civil
o subject matter) and venue (Bar 2006)
cases, venue is not a matter of jurisdiction (Heirs of Lopez v.
De Castro, 324 SCRA 591, 609). In essence, venue concerns a
rule of procedure (Golden Arches Development Corporation v.
St. Francis Square Holdings, Inc., 640 SCRA 227, 230).
3. Venue, however, is treated differently in a criminal
case. Jurisprudence holds that venue in criminal cases is
jurisdictional (Union Bank of the Philippines v. People, 667
SCRA 113, 122; See also Navaja v. De Castro, G.R. No. 182296,
June 22, 2015).
CHAPTER II 163
JURISDICTION AND VENUE
Because venue, in criminal cases, is an essential element
of jurisdiction, where the information is filed in a place
where the offense was not committed, the information may
be quashed for "lack of jurisdiction" over the offense charged
(Sec. 3[b}, Rule 117, Rules of Court; See also Navaja v. De
Castro, ibid.) and not �erely "improper venue." Also, because
.\,emi� is jurisdictionafin a '6riminal case, it i:;�nnot be waived
venue is not equivalent to lack of jurisdiction. Because it is
-
merely procedural, the parties to a civil case can waive the
venue of a case.
The Court explained:
"We underscore that in civil proceedings, venue is
procedural, not jurisdictional, and may be waived by the
defendant if not seasonably raised either in a motion to
dismiss or in the answer. Section 1, Rule 9 of the Rules
of Court thus, expressly stipulates that defenses and
objections not pleaded either in a motion to dismiss or in
the answer are deemed waived. As it relates to the place
of trial, indeed, venue is meant to provide convenience
to the parties, rather than to restrict their access to the
courts. In other words, unless the defendant seasonably
objects, any action may be tried by a court despite its
being the improper venue" (BPI Family Savings Bank,
Inc. u. Spouses Benedicto & Yujuico, G.R. N�. 175796,
July 22, 2015).
Some specific distinctions between jurisdiction (over the
1. · Jurisprudence differentiates jurisdiction from venue
as follows:
(a) Jurisdiction refers to the authority of the court
to hear and determine a case; venue refers to the place
where the case is to be heard or tried;
(b) Jurisdiction is a matter of substantive law;
venue, of procedural law (Salvador v. Patricia, Inc., C.R.
No. 195834, November 9, 2016). A wrong venue is a mere

164 CML PR.O@EDURE, VOLUME I
THE BAR LECTURES SERIES
procedural infirmity, not a jurisdictional defect (Pilipinas
Shell Petroleum Corporation v. Royal Ferry Services, Inc.,
G.R. No. 188146, February 1, 2017).
(c) Jurisdiction, being a matter of substantive law,
cannot be waived by the parties;· venue may be waived
if.not i�voked either in' a mgtion to dismiss or in /the
answer (City of Lapu-Ldpu v/Philippine Economic Zone
Authority, supra). One Court decision clearly declares:
"Venue is procedural, not jurisdictional, and hence may
be waived. It is meant to provide convenience to the
parties, rather than restrict their access to the courts as
it relates to the place of trial" (Heirs ofLopez v. De Castro,
324 SCRA 591, 609);
(d) Jurisdiction is fixed by law and cannot be
conferred by the parties; venue may be conferred by the
act or agreement of the parties (Nocum v. Tan, 470 SCRA
639, 645; See also 20 Am Jur, supra, §89; Mendiola v.
Court of Appeals, 677 SCRA 27, 50-51X
(e) The court may dismiss an action motu proprio
in case of lack of jurisdiction over the subject matter but
not for improper venue (Rudolf Lietz Holdings, Inc. v.
Registry of Deeds of Paraiiaque City, 344 SCRA 680, 684-
685); and
(f) Jurisdiction over the subject matter may be
raised at any stage of the proceedings since it is conferred
by law, although a party may be barred from raising it on
the ground of estoppel (La'o v. Republic, 479 SCRA 439,
446).
Subject to the omnibus motion rule, the objection to an
improper venue must be raised either in a motion to dismiss
or in the answer because, as a rule, under Sec. 1 of Rule 9,
defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived. Where the
improper venue was already apparent at the time the motion
to dismiss was filed, the objection to venue should be raised
in the motion to dismiss pursuant to the omnibus motion
rule; otherwise, such objection shall be deemed waived. The
CHAPTER II 165
JURISDICTION AND VENUE
defense of improper venue is not one of those defenses which
are not waived even if not raised in a motion to dismiss or in
the answer (For further readings, see City of Lapu-Lapu v.
Philippine Economic Zone Authority, supra).
Basic venue analysis
1. The rule§ on venue do not give a,plain.tiff the freedom
to bring suits wherever he chooses. The venue of a case is
circumscribed by specific and definite rules to ensure a fair
procedure by preventing undue harassment of a defendant by
the plaintiff. Such rules are neither circuitous nor complicated.
In order to know the venue of a particular action, the basic
and initial step is to determine if the action is personal or
00
real. If it is personal, the venue is deemed transitory and
thus, generally depends upon the residences of the parties.
If it is real, the venue is local and, thus, generally, the venue
is the place where the property or any portion of the same is
situated.
2. "The determinants of whether an action is of a real
or personal nature have been fixed by the Rules of Court and
relevant jurisprudence. According to Section 1, Rule 4 of
the Rules of Court, a real action is one that affects title to
or possession of real property, or an interest therein x x x.
In contrast, the Rules of Court declares all other actions as
personal actions. Such actions may include those brought for
the recovery of personal property, or for the enforcement of
some contract or recovery of damages for its breach, or for the
recovery of damages for the commission of an injury to person
or property x x x" (Racpan v. Barroga-Haigh, G.R. No. 234499,
June 6, 2018).
Venue in personal actions (Bar 201'1; 2017)
1. 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 (Sec. 2, Rule 4, Rules of Court; Briones v. Court
of Appeals, G.R. No. 204444, January 14, 2015). Personal

166 CMLPROCEDURE,VOLUME I
THE BARtiECTURES SERIES
=
actions are often referred to as transitory because its venue
'moves' depending on the residences of the parties.
There are cases in which there are several parties and
some of them are merely formal or nominal. Section 2 of Rule
4 instructs that when there is more than one plaintiff or
defendant in a personal ac:tion, the residences ofthe principal
pai;ties s_hould be the basis for cietermining the �ropet:venue.
The word, 'principal' has been used in order to. prevent the
plaintiff from choosing the residence of a minor plaintiff or
defendant as the venue. Such party would not be expected to
exhibit the degree of interest in actively participating in the
litigation (See Araneta v. Court of Appeals, G.R. No. 154096,
August 22, 2008).
2. If the defendant is a non-resident, the venue is where
the plaintiff or any of the principal plaintiffs resides, or where
the non-resident defendant may be found, at the election of
the plaintiff (Sec. 2, Rule 4, Rules of Court; Briones v. Court
of Appeals, supra; United Alloy Philippine.s Corporation v.
United Coconut Planters Bank, G.R. No. 179257, November
23, 2015). Example: Thomas Reed, a Canadian tourist, billeted
in a hotel in Quezon City, is sued for damages by a restaurant
owner residing in Manila. Quezon City is a possible venue.
It is the place where the defendant may be found. The other
possible venue is Manila, the residence of the plaintiff.
8
3. The term "resides" as employed in the rule on
venue on personal actions means the place of abode, whether
permanent or temporary, of the plaintiff or the defendant,
as distinguished from "domicile" which denotes a fixed
permanent residence to which, when absent, one has the
intention of returning (See Dangwa Transportation Company
u. Sarmiento, C.R. No. L-22795, January 31, 1977). Example:
Mr. DD was born in Cebu City. It is in the same place where
he raised a family. He applied for a job and was hired by a
company in Manila where he lives in an apartment adjacent
to his place of work. For purposes of venue, in an action for a
sum of money, Manila is his residence.
4. The residence of a domestic corporation is the place,
within the Philippines, where its principal office is located.
CHAPTER II 167
JURISDICTION AND VENUE
Jurisprudence holds: "A corporation has no residence
in the same sense in which this term is applied to .a natural
person. But for practical purposes, a corporation is in a
metaphysical sense a resident of the place where its principal
office is located as stated in the articles of incorporation
(Cohen v. Benguet Commercial Co., Ltd., 34Phil. 526 [1916]
Clavecilla Radio System v. Antilla, 19SCRA 379 [19671).
The Corporation Code precisely requir�ll each corporation
to specify in its articles of incorporation the "place where
the principai-office of the corporation is to be located which
must be within the Philippines" (Sec. 14[3]). The purpose of
this requirement is to fix the residence of a corporation in a
definite place, instead of allowing it to be ambulatory" (Davao
I
Light and Power Company, Inc. v. Court of Appeals, G.R. No.
111685, August 20, 2001). Thus, if the principal office of ABC
Corporation is located in Makati City, but its branch offices
are situated in Manila and Quezon City, the latter two places
cannot be proper venues in a suit by or against the corporation,
such places not being the locations of the principal office.
5. Actions for damages and actions to c.ollect a sum of
money must be filed in either the residence of the plaintiff or
the residence of the defendant, at the election of the plaintiff.
Such actions are personal actions. Hence, an action for
the collection of Pl million filed by a resident of Lingayen,
Pangasinan against a resident of San Fernando, La Union,
may be filed ·in either place, at the option of the plaintiff. Bar
1998
6. Assume that two cars, Car AA and Car AA, collided in
a highway within the territorial jurisdiction of Mandaluyong
City. The owner of Car AA, a resident of Maka.ti City wants
to file a complaint for damages against the owner of Car BB,
a resident of Manila. The complaint may be filed either in
Makati City or Manila at the election of the plaintiff. The
action cannot be instituted in Mandaluyong City since it is
not the residence of either the plaintiff or the defendant.
Venue in real actions (Bar 2009; 2018)
1. Actions affecting title to, or possession of, real
property, or interest therein, shall be commenced and tried in
 168 CIVIL PROQ!l:,PURE, VOLUME I
THE BAR'LECTURES SERIES
the proper court which has jurisdiction over the area wherein
the real property involved, or a portion thereof, is situated
(Sec. 1, Rule 4, Rules of Court; Briones v. Court of Appeals,
G.R. No. 204444, January 14, 2015).
The rule, in its simplified form, means that if the action
_is real, the11ction is lpcal, as oppqsed to trqnsitory, and.the
.. venue is the' place wHere the reaL:'propertyiinvolved, or.any
portion thereof, is situated (Sec. 1, Rule 4, Rules of Court). In
a real action, the residences of the parties are irrelevant to the
choice of venue.
2. Actions to recover possession or ownership of real
property are real actions and must be filed in the place where
the real property is located. Actions for unlawful detainer,
forcible entry, accion publiciana, accion reivindicatoria, and
for reconveyance of real property, are real actions and must
be filed in the place where the subject property is situated.
The same applies to partition of real property and judicial
foreclosure of real estate mortgage. Example: Mr. PP, a
resident of Manila, files an action for reconveyance of a real
property located in Makati City, against Mr. DD, a resident of
Pasay City. The proper venue is Makati City, the place where
the property, subject of the action, is located. Manila and
Pasay City are not proper venues.
An.action to recover possession of the leased real property
and for the payment of accrued rentals must be filed in Davao
City where the property is located because the ac_tion is a real
action. The primary purpose of the action is the recovery of
possession of the real property and the payment of accrued
rentals is merely incidental to the main case. Bar 1987; 1991;
2008;
Forcible entry and detainer actions shall be commenced
and tried in the municipal court of the municipality or city
wherein the real property involved, or a portion thereof, is
situated (Sec. 1, Rule 4, Rules of Court). Bar 2013; 2016
3. In determining venue, one must inquire into the
primary purpose of the action, not the title or heading given
to such action. Thus, where the complaint was captioned as
CHAPTER II 169
JURISDICTION AND VENUE
for the "declaration of the nullity" of a deed of absolute sale
involving a real property located in Makati City, the venue
for such action is unquestionably the proper court of Makati
City if the action is instituted primarily for the recovery of
the subject property (See Latorre v. Latorre, 617 SCRA 88,
97). However, where the action for the nullification of a deed
,.pf sale i$_;not intende<i for the, recovery or :r;econvey�nce of
'real property, since title to theproperty has not passed to
the respondent, but solely for the annulment of a contract, it
1s a persohal action that may be filed in the court where the
plaintiff or the defendant resides (Racpan v. Barroga-Haigh,
G.R. No. 234499, June 6, 2018).
4. Wherethe action is for specific performance and does
not involve recovery of real property, the action is a personal
action. The action, therefore, may be commenced and tried
where the plaintiff resides, or where the defendant or any of
the principal defendants resides, at the election of the plaintiff
(Spouses Saraza v. Francisco, G.R. No. 198718, November 27,
2013). Where, however, a complaint is denominated as one for
specific performance but, nonetheless, prays for the issuance
of a deed of sale for a parcel of land, to enable the plaintiff to
acquire ownership thereof, its primary objective and nature is
one to recover the parcel of land itself and, thus, is deemed a
real action (Gochan v. Gochan, 372 SCRA 256, 264). The venue
of the action, therefore, is the place where the real property
involved is situated. Bar 2012
5. An action to recover the deficiency after the
extrajudicial foreclosure of the real property mortgaged is a
personal action, for it does not affect title to, possession of or
any interest in real property (BPI Family Savings Bank, Inc.
v. Yujuicor G.R. No. 175796, July 22, 2015). The action is for
the recovery of money, hence, a personal action. The venue is
the residence of the plaintiff or the residence of the defendant
at the election of the plaintiff.
6. In a case, the plaintiff sought the return of the
portion of the subject property or its value on the basis of
his co-ownership thereof. The Court held that while the
complaint of;the petitioner was denominated as one for
recovery of the property or its value, the said complaint is

170 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
actually anchored on his claim of ownership over a portion
of the subject property. Hence, his alternative claim for the
value of the property is still dependent on the determination
of ownership, which is an action affecting title to or possession
of real property or an interest therein. Clearly, petitioner's
claim is a real action which should be .filed in the court where
the property lies·, which in this case, is the RTC of Morong,.
RizaL1n this jurisdiction, emphasized the Court, "we adhere.·
to the principle that the nature of an action is determined by
the allegations in the Complaint itself, rather than by its title·
or heading. It is also a settled rule that what determines the
venue of a case is the primary objective for the filing of the
case x x x" (Samson v. Spouses Gabor, G.R. No. 182970, July
23, 2014).
µ no change of ownership
7. An action to annul a deed of real estate yetmortgage
0
filed by the mortgagor is a personal action. Since the mortgagor
is the owner of the property mortgaged, there is no claim of
ownership involved. The venue of the action is the residence
of the plaintiff or that of the defendant at the election of
the plaintiff. Where the property has already been sold on
foreclosure and there has been a change in the ownership of
the land, an action to annul the foreclosure sale is obviously to
recover ownership of the property. Hence, the action becomes
a real action. The venue to annul the foreclosure sale is the
place where the real property is located. Bar 2016
Venue of actions against non-residents affecting the
personal status of the plaintiff; actions affecting property of
the non-resident in the Philippines
1. The rule on venue under Sec. 3 of Rule 4 of the Rules
of Court applies when:
a. any of the defendants is a non-resident and, at
the same time, not found in the Philippines; and
b. the action affects the personal status of the
plaintiff; or
c. the action affects any property of the non­
resident defendant located in the Philippines.
CHAPTER II 171
JURISDICTION AND VENUE
2. The action in the above situations may be commenced
and tried in the court -.of the pilace where the plaintiff resides,
or where the property or any portion thereof is situated or
found (Sec. 3, Rule 4, Rules of Court).
3. Under Sec. 3 o'f Rule 4, if an action for partition -of
rea'i property is .filed by the plaindff, a residertt of Manila,
naming his co-.qwner brothers, all r,esidents -of Los Angeies/'.
California, as defendants, �nd involving a property located in ..
Maka.ti City, the plaintiff 1J7,ay file the action in Iylakati City, .
the place where the property is situated. However, the tenor
,of the rule, as written, appears to give the plaintiff a choice of
venu.e.. This may be liberally interpreted to allow the plaintiff
to commence and have the action tried either in Manila, the
place where he resides, or in Makati City, the place where the
property is situated.
Comment: Unless the Court declares otherwise, it is
submitted that a liberal interpretation of Sec. 3 of Rule 4
- giving the plaintiff a choice of venue in actions affecting
any property of a non-resident defendant who is not found in
the Philippines - would well serve the interest of a resident
plaintiff, rather than of a possible absconding non-resident
defendant.
Take the example of a plaintiff, a resident of Manila, who
files an action to foreclose a real estate mor:tgage, instead of
filing an action for a sum of money, against the defendant,
a former Philippine resident and now a permanent U.S.
resident. The defendant, who refuses to pay the debt, leaves the
country with no intent of personally submitting himself to the
jurisdiction of the court. Assume that the property mortgaged
is situated in the most southern part of the Philippines. A
liberal interpretation of the rule would save the plaintiff from
going through the rigors of travelling to a distant place just to
file and prosecute the action. A contrary interpretation would
lead to an unfortunate situation in which a defendant, who
refuses to pay a just debt, would have the capacity to cause so
much inconvenience to an aggrieved plaintiff.
172 CNI LP ROCEDU RE,VOLUMEI
THE BAR,(iECTURES SERIES
When the rules on venue do not apply
The rules on venue are not applicable in any of the
following cases:
a. Where a specific rule or law provides otherwise.
Exqmples: (i) Aqua warra11,to proceediiig commen�ed
by the Solicitor Ge:deral and filed, not witli the Court of
Appeals or the Supreme cou:rt, is to be filed with the
Regional Trial Court of, Manila. This particular rule
does not consider the residence of the respondent (Sec. 7,
Rule 66, Rules of Court). (ii) A petition for a continuing
writ of mandamus if filed with the Regional Trial Court,
other than with the Court of Appeals or Supreme Court,
shall be filed with the Regional Trial Court exercising
jurisdiction over the territory where the actionable neglect
or omission occurred (Sec. 2, Rule 8, Rules of Procedure
for Environmental Cases). (iii) The civil (as well as
criminal) action for damages in written defamation shall
be filed with the RTC of the province or city where the
libelous article is printed and first published or where
any of the offended parties actually resides at the time
of the commission of the offense. However, where one of
the offended parties is• a public officer, whose office is in
the City of Manila at the time of the commission of the
offense, tlie action shall be filed with the RTC of the City·
of Manila or of the city or province where the libelous
article is printed and first published. In case such public
officer does not hold office in the City of Manila, the
action shall be filed with the RTC of the province or city
where he held offi<;e at the time of the commission of the
offense or where the libelous article is printed and first
published. In case one of the offended parties is a private
individual, the action shall be filed with the RTC of the
city or province where he actually resides at the time
0
of the commission of the offense or where the libelous
matter is printed and first published (Art. 360, Revised
Penal Code).
CHAPTER II 173
JURI S DI CTION AN D VENUE
b. Where the parties · have validly agreed . in
writing before the filing of the action on the exclusive
venue thereof (Sec. 4, Rule 4, Rules of Court).
Fontenot
Stipulations on venue (Bar 1997; 2001; 2012)
1. The parties p1ay agree on a specific venue which
·.could be in '.!i: place wlrere neither .�f them re.sides (Unitie,rsal
Robina Corporation v.;Lim, 535 SCRA 95, 99). In real actions,
like unlawful detainei:, the parties may stipulate on a venue
other than the place where the real property is situated (Union
Bank of the Philippines v. Maunlad Ifomes, Inc., 678 SCRA
539, 550, August 15, 2012).
The parties may stipulate on the venue as long as the
agreement is (a) in writing, (b) made before the filing of the
action, and (c) exclusive as to the venue (Sec. 4[b], Rule 4, Rules
of Court). While the first two requisites rarely pose a problem,
the third has been the source of controversy in the past.
2. Written stipulations as to venue, according to the
Court, are either restrictive (mandatory) or permissive. In
interpreting stipulations, inquiry must be made as to whether
or not the agreement is restrictive in the sense that the suit
may be filed only in the place agreed upon or merely 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 (Supena
v. De la Rosa, 267 SCRA 1, 11; See also Ley Construction and
Development Corporation v. Sedano, G.R. No. 222711, August
23, 2017; Planters Development Bank v. Ramos, G.R. No.
228617, September 20, 2017). In other words, where the venue
stipulated upon is restrictive or mandatory, the complaint is
to be filed only in the -stipulated venue.
Where the stipulated venue is merely permissive, the
complaint may be filed in the place designated by the Rules
0
or in the place stipulated. The latter place, thus, becomes
a permissible venue in addition to those provided for by
the Rules. This means that "in the absence of qualifying or
restrictive words, the stipulation should be deemed as merely
an agreement on an additional forum, not as limiting venue to
 174 CIVIL PROCEDURE, VOLUME I
THE BAR bECTURES SERIES
. a specified place" (See Planters Development Bank v. Ramos,
G.R. No. 228617, September 20, 2017).
The Court, in one case, clarified:
"The settled rule on stipulations regarding venue,
as held by th[e] Court in the vintage case of Philippine
Banking Corporation v. Tettsuan, (230 SCRA 413,420)
is that while th�y are considered valid a'.iid enforce�.hle,
venue stipulations in a contract do not, as a rule, supersede
the general rule set forth in.. Rule 4 of the Revised Rules
of Court in the absence of q{ialifying or restrictive words.
They should be considered merely as an agreement or
additional forum, not as limiting venue to the specified
place. · They are not exclusive but, rather permissive. If
the intention of the parties were to restrict venue, there
must be accompanying language clearly and categorically
expressing their purpose and design that actions between
them be litigated only at the place named by them"
(Pacific Consultants v. Schonfeld, 516 SCRA 209, 229;
See also Ley Construction and DevelopmeT/,t Corporation
v. Sedano, G.R. No. 222711, August 23, 2017).
3. It must be emphasized that the mere stipulation on
the venue of an action, however, is not enough to preclude
parties from bringing a case in other venues. The parties must
be able to show that such s�ipulation is exclusive. In the absence
of qualifying or restrictive words, the stipulation should be
deemed as merely an agreement on an additional forum, not
as limiting venue to the specified place (Spouses Lantin v.
Lantion, 499 SCRA 718, 722; See also Ley Construction and
Development Corporation v. Sedano, G.R. No. 222711, August
23, 2017). Thus, if the plaintiff, in an action for damages,
resides in Quezon City while the defendant resides in Makati
City, and the agreed venue is Pasay City which, by the terms
of the said agreement, is not exclusive, the venue of the action
may be Quezon City, Makati City or Pasay City, at the election
of the plaintiff. Pasay City would simply be considered as an
additional, not an exclusive, venue.
On the other hand, a stipulation that "any suit arising
from this contract shall be filed only in Quezon City," is
CHAPTER II 175
JURISDICTION AND VENUE
exclusive in character and clear enough as to preclude the filing
of the action in any other place. In this case, the rule that the
residences of the parties are to be considered in determining
the venue of personal actions will not apply because of the
restrictive tenor of the stipulated venue.
4. ..How ab011t a stipulation that the "parties agree to
sue and pe sued irtthe courts of:,Manila"?, ;
This was actually the stipulation ina suit subject of the
landmark case of Polytrade Corporation v. Blanco, 30 SCRA
187, 191. This stipulation was held not to be restrictive or
exclusive to prevent the filing of the suit in the places provided
for by the rules, i.e., in the residence of the plaintiff or of the
defendant. According to the Court, the plain meaning of the
said provision is that the parties merely consented to be sued
in the courts of Manila considering that there are no qualifying
or restrictive words which would indicate that Manila, and
Manila alone, is the agreed venue. It simply is permissive and
the parties did not waive their right to pursue the remedy in
the places specifically mentioned in the Rules of Court.
5. The Polytrade doctrine was further applied in
the case of Unimasters Conglomeration, Inc. v. Court of
Appeals, 267 SCRA 759, 776, 777, which analyzed the
various jurisprudence rendered after the Polytrade case. In
Unimasters, it was ruled that a stipulation stating that. "all
suits arising out of this Agreement shall be filed within the
proper Courts of Quezon City" is only permissive and does not
limit the venue to the Quezon City courts.
As the Court explained:
"x x x [U]nless the parties make very clear, by
employing categorical and suitably limiting language,
that they wish the venue of actions between them to be laid
only and exclusively at a definite place, and to disregard
the prescriptions of Rule 4, agreements on venue are not
to be regarded as mandatory or restrictive, but merely
permissive, or complementary of said rule. The fact that iO:
their agreement the parties specify only one of the venues
mentioned in Rule 4, or fix a place for their actions different
176 CIVIL.PROCEDURE, VOLUME I
THE BAR L'ECTURES SERIES
from those specified by said rule, does not, without more,
suffice to characterize the agreement as a restrictive one.
There must, to repeat, be accompanying language clearly
and categorically expressing their purpose and design
that actions between them be litigated only at the place
named by them, regardless of the general precepts of Rule
4xxx."
. .. . r"i;; i.�1.
6. The following stlpulations were, likewise, treated as,
merely permissive
· and did not limit the· venue to the
· stipulated.··
pla�e:
a. "x x x The agreed venue for such action is
Makati, Metro Manila, Philippines"(Mangila v. Court of
Appeals, 387 SCRA 162, 174-175).
b. "In case of litigation hereunder, venue shall be
in the City Court or Court of First Instance of Manila as
the case may be for determination of any and all questions
arising thereunder" (Philippine Bank of Communications
v. Trazo, 500 SCRA 242, 247-248).
c. "It is hereby agreed that in case of foreclosure
of this mortgage under Act 3135, as amended, and
Presidential Decree No. 385, the auction sale shall be held
at the capital of the province, if the property is within the
territorial jurisdiction of the province concerned, or shall
be held in the city, if the property is within the territorial
jurisdiction of the city concerned" (Langkaan Realty
Development, Inc. v. United Coconut Planters Bank, 347
SCRA 542, 555-556).
d. "All court litigation procedures shall be
conducted in the appropriate -courts of Valenzuela City,
Metro Manila" (Auction in Malinta, Inc. v. Luyaben, 515
SCRA 569, 575).
7. Examples of words with restrictive meanings are:
"only," "solely," "exclusively in this court," "in no other court
save-," ''particularly," "nowhere else but/ except-," or words
of equal import (Pacific Consultants International Asia, Inc. v.
Schonfeld, 516 SCRA 209, 229).
CHAPTER II 177
JURISDICTION AND VENUE
Another example is: "In the event of suits arising out of
or in connection with this mortgage and/or the promissory
note/s secured by this mortgage, the parties hereto agree to
bring their causes of actiono exclusively in the proper court of
Makati, Metro Manila or at such other venue chosen by the
Mortgagee, the Mortgagor waiving for this purpose any other
ven1.4t (Spousefi, Lantin v. I/;intion, 4�f SCRA 718:,\723).
· Cases like Hoechst Philippines, Inc. v. Torre�, 83 SCRA
297, and Bautista v. De Borja, 18 SCM. 474, and other ruling�
contrary to the Polytrade doctrine must be deemed superseded
by current decisions on venue.
In particular, the 1978 case of Hoechst Philippfoes, Inc.
v. Torres, 83 SCRA 297, 301, involved the stipulation that "in
case of any litigation arising out of this agreement, the venue of
action shall be in the competent courts of the Province of Rizal;"
The Supreme Court construed this agreement as sufficient to
limit the venue to the proper court of Rizal and, thus, exclusive
in its import. However, in Supena v. De la Rosa, 267 SCRA
1, 14, it was ruled that Hoechst had been rendered obsolete
by recent jurisprudence applying the doctrine enunciated in
Polytrade (See also Auction in Malinta, Inc. v. Luyaben, 515
SCRA 569, 576).
8. Where the venue stipulated in the deed of real estate
mortgage provides for a venue different from a subsequent
restructuring agreement of the loan subject of the mortgage,
and the subsequent agreement was entered into to modify the
entire loan obligation, including the mortgage, the restrictive
venue in the restructuring agreement should prevail. Since
Makati was the exclusive venue agreed upon, Makati is
the proper venue (Paglaum - Management & Development
Corporation v. Union Bank of the Philippines, 673 SCRA 506,
513-516).
A. restrictive stipulation on venue is not binding when the
validity of the contract is assailed
The instant case arose from a complaint for nullity
of a mortgage contract, promissory note, loan agreement,
 178 CIVIL PROCEDURE, VOLUME I
THE BAR i,EC:TURES SERIES
foreclosure of mortgage, cancellation of a transfer certificate
of title, and damages against a lending company. In his
complaint, filed in Manila, the plaintiff alleged that he is the
owner of a real property which was sought to be foreclosed
by the defendant despite his not having contracted any loans
.from the defendant. He claimed that he has been working
aiid living i nVietnam since 2007. Essentially, .he assailed *e
v'�lidity of th;''foregoing'contracts ci'�iming his signature' tcf be
forged. The defendant filed a motion to dismiss on the ground
of improper venue. The motion relied on the venue stipulation
in the assailed contracts that all legal actions arising out of
the same shall be brought only in the proper courts of Makati
City.
The Court held that in cases where the complaint assails
only the terms, conditions, and/or coverage of a written
instrument and not its validity, the exclusive venue stipulation
Only part by agreement
contained therein shall still be binding on the parties, and of the contract will not be held valid where it practically negates the action
thus, the complaint may be properly dismisse9- on the ground
of improper venue. However, a complaint directly assailing the
validity of the written instrument itself should not be bound by
the exclnsive venue stipulation contained therein and should
be filed in accordance with the general rules on venue. To
be sure, it would be inherently consistent for a complaint of
this nature to recognize the exclusive venue stipulation when
it, in fact, precisely assails the validity of the instrument in
which such stipulation is contained. The plaintiff, therefore,
ruled the Court, is not bound to file the action in Makati City
(Briones v. Court of Appeals, G.R. No. 204444, January 14,
2015).
Venue in a contract of adhesion
1. The Court had ruled that contracts of adhesion might
be occasionally struck down only if there was a showing that
the dominant bargaining party left the weaker party without
any choice as to be "completely deprived of an opportunity
to bargain effectively" (Prieto v. Court of Appeals, 673 SCRA
371).
CHAPTER II 179
JURISDICTION AND VENUE
2. Venue stipulations in a contract of adhesion follow
the above rule. At issue in an early case was the validity of the
condition written on a passenger ticket issued by a shipping
company. The condition reads:
XXX
"1,4. It is hereby agreed dnd understobd that any
and aU actions arising out of the conditions and provisions.
of this ticket, irrespective of where it is issued, shall be
filed in the competent courts in the City of Cebu."
Considering the state of the shipping industry and the
circumstances under which a contract of adhesion is prepared,
the Court considered the condition as "subversive of public
policy on transfers of venue of actions. For, although venue
]
may be changed or transferred from one province to another
a
of the parties in writing x x x, such an agreement
of the claimants, such as the private respondents herein. The
contractitself philosophy underlying the provisions on transfer of venue
]
is assailed of actions is the convenience of the plaintiffs as well as his
witnesses and to promote the ends of justice. Considering the
expense
would
and trouble a passenger residing outside of Cebu City
incur to prosecute a claim in the City of Cebu, he would
most probably decide not to file the action at all. The condition
will thus defeat, instead of enhance, the ends of justice" (Sweet
Lines, Inc. v. Teves, 83 SCRA 361, 372).
Complementary-contracts-construed-together rule
The "complementary-contracts-construed-together" rule
is one which mandates that the provisions of an accessory
contract must be read in its entirety and together with the
principal contract between the parties. The basis of this
rule is Art. 1374 of the Civil Code which provides that, "The
various stipulations of a contract shall be interpreted together,
attributing to the doubtful ones that sense which may result
from all of them taken jointly."
The rule is exemplified by one case where the plaintiff
sought to. foreclose the chattel mortgage by filing a complaint
for repleuin with damages against the defendants before

180 CML PRO,GEDURE, VOLUME I
THE BAR LECTURES SERIES
the Regional Trial Court of Dagupan City. After service of
summons, the defendants moved to dismiss the complaint
on the ground of improper venue based on a provision in the
promissory note which states that, "all legal actions arising
out of this note or in connection with_ the chattels subject
hereof shall only b_e brought in or submitted
· to the· · proper
court in:;Makati City, Philippi4�s."
The plaintiff opposed the motion to•dismiss and argued
that venue was properly laid in Dagupari City where it has
a branch office based on a provision in the deed of chattel
mortgage which states that "in case of litigation arising out
of the transaction that gave rise to this contract, complete
jurisdiction is given the proper court of the city of Makati or
any proper court within the province of Rizal, or any court in
the city, or province where the holder/mortgagee has a branch
office, waiving for this purpose any proper venue."
The controversy stems from the conflicting provisions on
venue in the promissory note and the deed of chattel mortgage.
Consequently, the decisive issue is the correct interpretation
of the venue provisions in the two contracts.
The defendant argues that the promissory note should
prevail over the deed of chattel mortgage because this is
the principal contract being sued upon while the deed of
chattel mortgage merely accompanies the promissory note.
The plaintiff counters that the alternative venues provided
under the deed of chattel mortgage may not be disregarded as
meaningless verbiage.
The Court, in deciding the case, conceded that there is no
dispute that the words "shall only" preceding the_ designation
of venue in the promissory note, standing alone, is mandatory
and restrictive. However, the deed of chattel mortgage
executed to secure the loan obligation provides alternative
venues. The Court posed a question: "Should we disregard
the venue provision in the deed of chattel mortgage as mere
surplusage as contended by petitioners?"
The Court answered its question in the negative holding
that the provisions of an accessory contract must be read in
CHAPTER II 181
JURISDICTION AND VENUE
its entirety and together with the principal contract between
the parties. The plaintiff, hence, is not barred from filing the
case in Dagupan City where private respondent has a branch
office as provided for in the deed of chattel.mortgage (Rigor v.
Consolidated Orix Leasing a,nd Finance Corporation, G.R. No.
136423, August 20, .2002).
Adopted illustrations
1. Plaintiff resides in' Manila. Defendant resides in
Quezon City. The written contract stipulates that any suit
arising from a violation of the contract "shall be filed only in
Pasay City." Plaintiff sues Defendant for damages arising
from the alleged breach of the same contract. The action is
filed in Quezon City. Is the venue improper? Answer: The
venue is improper. The stipulation to file the action "only
in Pasay City" is restrictive and, therefore, has the effect of
making Pasay City the sole venue of the action.
Assuming that the stipulation provides... "shall be filed
in Pasay City," without any restrictive language employed in
the agreement. The action for breach of contract is filed in
Quezon City. Is the venue improper? Answer.- The venue is
proper. The stipulation, "shall be filed in Pasay City" merely
operates to add Pasay City to the regular venues of Manila and
Quezon City and does not preclude the filing of the action in
either the residence of Plaintiff or the residence of Defendant,
at the election of Plaintiff. Bar 1997
2. Defendant, a resident of Angeles City, borrowed
P300,000 from Plaintiff, a resident of Pasay City under an
agreement that stipulated that the parties "agree to sue
and be sued in the City of Manila." Is Plaintiff precluded
from filing the action either in Angeles City or Pasay City?
Answer: He is not precluded. The stipulation on venue is not
an exclusive stipulation and its effect is merely to add Manila
as an additional venue. He may even file the action in ly.Ianila
which became an added option by virtue of the stipulation.
The same conclusion would be reached had the stipulation
been: ''Venue for all suits arising from this contract shall be
182 CIVIL PROGl):DURE, VOLUME I
THE BAR LECTURES SERIES
the courts in Quezon City." The action may be filed also either
in Angeles City or in Pasay City. It may also be filed in Quezon
City. Bar 1997
If the parties above failed to stipulate on the venue in the
loan agreement, the action may be ·filed either in Angeles City
or);>asay City, at the ele�tion of the;plaintiff. Tp.e venue qf a
personal action, such as one to recoyer a debt under a loan of
money, is a personal actiop.. Bar 199_7
an
his own impulse
-
Dismissal based on improper venue →
on
- taken w/o formal request from
1. A motu proprio dismissal based on improper venue
a
another
is plain error (Republic v. Glasgow Credit and Collection
Services, Inc., 542 SCRA 95, 101) and patently incorrect (Dolot
v. Paje, G.R. No. 199199, August 27, 2013). Unless and until
the defendant objects to the venue in a motion to dismiss,
the venue cannot be truly said to be improperly laid because
the venue, although technically wrong, may be acceptable to
the parties for whose convenience the rules on venue have
been devised. The trial court cannot preempt the defendant's
prerogative to object to the improper laying of the venue by
motu proprio dismissing the case (Dacuycoy v. Intermediate
Appellate Court, 195 SCRA 641, 645-646). Hence, if, in a case
filed with the Regional Tri�l Court, the defendant files a motion
to dismiss based on lack of jurisdiction over the subject matter
and the court instead dismisses the action based on improper
venue, the court would be acting erroneously because the
act would tantamount to a motu proprio dismissal based on
improper venue.
2. Improper venue is not one of the grounds wherein
the court may dismiss an action motu proprio on the basis
of the pleadings (Universal Robina Corporation v. Lim, 535
SCRA 95, 99).
Another case expounds on the rule, thus:
"The court may only dismiss an action motu proprio
in case of lack of jurisdiction over the subject matter,
litis pendentia, res judicata and prescription. Therefore,
the trial court in this case erred when it dismissed the
CHAPTER II 183
JURISDICTION AND VENUE
petition motu proprio. It should have waited for a motion
to dismiss or a responsive pleading from respondent,
raising the objection or affirmative defense of improper
venue, before dismissing the petition x x x" (Rudolf Lietz
Holdings, Inc. u. Registry of Deeds of Paraiiaque City, 344
SCRA 680, 684-685).
When courllilay mak�: a motu prbprio dismissal basecf'on
improper venue
official act
1. The court may, however, effect a motu proprio
dismissal of the complaint based on improper venue in an
action covered. by the rules on summary procedure. In this
party type of action, the 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. The dismissal may be made outright, which means
that the court may do so without need for waiting for the filing
of a motion to dismiss (Sec. 4, Revised Rules on Summary
Procedure).
2. In small claims cases, after the court determines
that the action falls under the rules for such cases, it may,
from an examination of the allegations in the Statement of
Claim and such evidence attached thereto, by itself, dismiss
tlie case outright on any of the grounds for the dismissal of
the case (Sec. 11, Rule of Procedure for Small Claims Cases,
as amended).
3. In actions for forcible entry and unlawful detainer,
the court may dismiss the case outright after examination
of the complaint and such evidence attached thereto. The
dismissal may be based on any of the grounds for the dismissal
of a civil action. A motion to dismiss is not required (Sec. 5,
Rule 70, Rules of Court).
Denial of a motion to dismiss based on improper venue; no
appeal
If a motion to dismiss based on improper venue is denied,
may the defendant appeal from the order of denial? He cannot.
184 CIVIL PROCEPURE, VOLUME I
THE BARLECTURES SERIES
o
An order denying a motion to dismiss is merely interlocutory.
Itis not final. Only final orders or judgments may be appealed
from. The normal remedy is to file an answer and interpose the
ground as an affirmative defense, go to trial and appeal from
the adverse judgment. However, if the denial is tainted with
grave abuse of. discretion amounting to lack of jurisdiction,
the remecly is certio(ari and pr.ohibition (]J:.mergency.i:Loan
Pawnshop v. Court a/Appeals, 353 SCRA 89, 92).
Improper venue is not jurisdictional; waiver of improper
venue
1. Be reminded that if the facts of the problem show that
the venue is improper, it would not be procedurally correct to
file a motion to dismiss anchored on lack of jurisdic�ion because
venue has nothing to do with jurisdiction in a civil case. Hence,
if a case for unlawful detainer is filed with MTC San Pablo
City, Laguna when it should have been filed with MTC Cavite
City because the property subject of the action is located in
Cavite City, the action filed in San Pablo City, Laguna may
be dismissed by the court on the ground of improper venue
but not on the ground of lack of jurisdiction because every
MTC has jurisdiction over cases of unlawful detainer. It would
be error to inject the concept of territorial jurisdiction in the
analysis of the case. Jurisdiction over the territory is irrelevant
in a· civil case. Territorial jurisdiction appiies only iri ·criminal
cases where venue is also jurisdictional. It is important to
remember that, in a civil case, the concept of venue is entirely
distinct from the concept of jurisdiction.
Authority of the Supreme Court in relation to venue of cases
To avoid a miscarriage of justice, the Supreme Court may
order a change of venue (Sec. 5[4], Art. VIII, Constitution of
the Philippines). Since the constitutional provision does not
distinguish, this rule could refer to both civil and criminal
cases.
-oOo-
Chapter Ill
CAUSES OF ACTION, ACTIONS,
AND PARTIES
I. CAUSE OF ACTION (Rule 2)
Importance of a cause of action
In ordinary civil actions, having a cause of action would
be vital if one were to seek the aid of the courts. Without a
cause of action, one cannot, as a rule, seek judicial relief for
a violation of one's rights. This is because Section 1, Rule
2 of the Rules of Court requires that every ordinary civil
action must be based on a cause of action (Turner v. Lorenzo
Shipping Corporation, 636 SCRA 13, 30, November 24, 2010;
Anchor Savings Bank v. Furigay, 693 SCRA 384, 395, March
13, 2013).
Meaning and elements of a cause of action
1. A cause of action is the act or omission by which
a party violates the rights of another (Sec; · 2-, Rule 2, Rules
of Court; Club Filipino, Inc. v. Bautista, G.R. No. 168406,
January 14, 2015; CCC Insurance Corporation v. Kawasaki
Steel Corporation, G.R. No. 156162, June 22, 2015).
2. As applied to ordinary civil actions, the following are
the elements of a cause of action:
(a) A legal right in favor of the plaintiff;
(b) A correlative legal duty of the defendant to
respect such rights; and
(c) An act or omission by such defendant in viola­
tion of the right of the plaintiff with a resulting injury or
185
 186 CMLPROGEDURE,VOLUMEI
T HE BAR LECTURES SERIES
damage to the plaintiff for which the latter may maintain
an action for the recovery of relief from the defendant
(Metropolitan Bank and Trust Company v. Ley Construc­
tion and Development Corp�ration, G.R. No. 185590, De­
cember 3, 2014; see also Ramiscal, Jr. v. Commission on
. Audit, G.R. No. 213716, October 10, 2017).
3. Although the fi;�t two ele�ents mdy exist, a
cause of action arises only upon the occurrence. of the last
element, giving the plaintiff the right to maintain an action
in court for recovery of damages or other appropriate relief
(Turner v. Lorenzo Shipping Corporation, 636 SCRA 13, 30;
Metropolitan Bank and Trust Company v. Ley Construction
and Development Corporation, ibid.). The last element, as
emphasized by jurisprudence, is the violation of the right of
the plaintiff. Without such a violation, a cause of action as
defined in Sec. 1 of Rule 2 will not arise.
The need to state the cause of action
1. For a complaint to be procedurally acceptable,
merely having a cause of action against the defendant is not
sufficient. The complaint must also clearly state that cause
of action. This means that all the elements of the cause of
action required by substantive law must clearly appear from
a reading of the complaint, To avoid a possible early dismissal
of the complaint, the simple dictum to be followed is: "If you
have a cause of action, then by all means, state it! State all the
elements of your cause of action in your complaint!"
Jurisprudence holds that, "A complaint states a cause
of action if it sufficiently aver'.' th� existence of the three (3)
essential elements of a cause of action x x x. If the allegations of
the complaint do not state the concurrence of these elements,
the complaint becomes vulnerable to a motion to dismiss on
the ground of failure to state a cause of action" (Westmont
= enjoyment of the property; and (d) the plaintiff instituted the
Bank [now United Overseas Bank Phils.] v. Funai Philippines
Corporation, G.R. No. 175733, July 8, 2015).
2. Put simply, the complaint should completely spell
out the elements of a particular cause of action. For instance,
CH APTER III 187
CAUSES OF ACTION, ACTIONS, AND PAR TIES
if in an action for a sum of money arising from a loan, the
complaint fails to allege that the debt is due and demandable,­
there is a failure to state a cause of action. Even if it so alleged
that the debt has become due and demandable, if the complaint
contains no allegation that there was a.prior demand upon the
debtor to pay and such demand went unheeded, there is also
a failufe to state;i cause of ac'tion. This.is so, even i(the plain
truth is that the·debt is due, a demandfo pay has been made,
and was not heeded.
In actions for forcible entry, for instance, three requisites
have to be alleged for the complaint to state a cause of action
and for the municipal trial court to acquire jurisdiction. First,
the plaintiff must allege his prior physical possession of the
property. Second, he must also assert that he was deprived
of the possession of the property either by force, intimidation,
threat, strategy, or stealth. Third, he must file the action
within one year from the deprivation of possession or from the
time he learned of his deprivation of physical possession of the
land or building (De la Cruz v. Court of Appeals, 510 SCRA
103, 115; See also Baluyo v. De la Cruz, G.R. No. 197058,
October 14, 2015; Diaz v. Spouses Punzalan, G.R. No. 203075,
March 16, 2016). Bar 2013 Even if it be true that the plaintiff
has a cause of action for forcible entry, if he, in his complaint,
fails to allege the essential elements of a forcible entry case,
his complaint will faii to state a cause of action.
A complaint for unlawful detainer, in order to sufficiently
allege a cause of action, should recite the following in the
complaint: (a) the defendant's initial possession of the
property was lawful, either by contract with or by tolerance
of the plaintiff; (b) eventually, such possession became illegal
upon the plaintiffs notice to the defendant of the termination
of the latter's right of possession; (c) thereafter, the defendant
remained in possession and deprived the plaintiff of the
complaint for ejectment within one year from the last demand
to vacate the property (Diaz v. Spouses Punzalan, ibid.).
Be reminded that what determines whether the cause
of action is one for forcible entry or unlawful detainer, is the
 188 CML P RQCEDURE,VOLUMEI
THE BAR LECTURES SERIES
nature of defendant's entry to the land. If the entry is illegal,
then the cause of action is one for forcible entry. If, on the
other hand, the entry is legal, but thereafter possession
becomes illegal, the cause of action is one for unlawful
detainer (Balibago Faith Bo,ptist Church, Inc. v. Faith in
Christ Jesus Baptist Church, Inc., G.R. No.. 191527, August
.:22,
1
2016). ,it must bf added that the actiqns for unliwful
Uetainer and forcible· entry are ·:governed by the· rules on
'
summary procedure. '!'heir summary character is designed to
quicken the determination of l)ossession de facto. They are not
-
proper to resolve ownership of the property and if an issue on
ownership arises in such actions, any pronouncement made
on ownership is provisional in nature and only provisionally
to resolve the issue of possession (Echanes v. Spouses Hailar,
G.R. No. 203880, August 10, 2016).
If the unlawful detaine:i:- case is based on the alleged
violation of the terms and conditions of the lease agreement
or failure to pay the rentals, the demand should not be "to pay
or vacate," but should be to pay and vacate (Sec. 2, Rule 70,
Rules of Court). The first type of demand does not give rise to
an unlawful detainer case since it is, in essence, an action for
a sum of money. So if the amount of rentals to be collected is
P900,000 , the action should be filed with the Regional Trial
Court which has jurisdiction over the amount demanded.
On the other hand, if the demand is "to pay and vacate," the
cause of action is one for unlawful detainer and should be filed
with the Municipal Trial Cou:tt. Thus, even if the complaint
is captioned, "Collection of a Sum of Money with Damages,"
the action is actually for unlawful detainer where the demand
made by the complaint is for the defendant "to pay and vacate"
(Siiggested reading: Barrazona u. RTC of Baguio, 486 SCRA
555, 561). Bar 2011
Similarly, if the unlawful detainer case is anchored upon
the failure of the defendant to comply with the conditions of
the lease, the demand must not be "to comply... or vacate,"
but should be "to comply... and vacate." The first type of
demand is not one for unlawful detainer but one for specific
performance. -
-
CHAPTER III 189
CAUSES OF ACTION, ACTIONS, AND PARTIES
Sec. 2 of Rule 70 (Forcible Entry and Unlawful Detainer)
declares:
"SEC. 2.... Unless otherwise stipulated, such action
by the lessor shall be commenced only after demand to
pay or comply with the conditions of the -lease AND to
vacate is made upon the lessee ..." (Emphasis ours).
� -- ; -._: ! -�;; : : <'(.
The test on whether ornot the complaint states a cause of
action
1. In determining whether an initiatory pleading
states a cause of action, "the test is as follows: Admitting
the truth of the facts alleged, can the court render a valid
judgment in accordance with the prayer?" To be taken into
account are only the material allegations in the complaint;
extraneous facts and circumstances or other matters aliunde
are not considered (Zepeda v. China Banking Corporation, 504
SCRA 126, 131-132; See also Asia Brewery, Inc. v. Equitabl
PCI Bank [now Banco De Oro-EPCI, Inc.], G.R. No. 19043-,
April 25, 2017; Trillanes IV v. Castillo-Marigomen, G.R. No.
223451, 1'v1arch 14, 2018). In determining whether or not a
cause of action is sufficiently stated in the complaint, 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 (Diaz v. Diaz,
331 SCRA 302, 316). The sufficiency of the statement of the
cause of action must appear on the face 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 (Viewmaster Construction Corporation v. Roxas,
335 SCRA 540, 546; for further readings, see Trillanes IV v.
Castillo-Marigomen, G.R. No. 223451, March 14, 2018).
2. The principle, that other matters aside from the
however, a hard and fast rule.
0
allegations in the complaint are not to be considered, is not,
In some cases, the Court considered the documents
attached to the complaint to truly determine sufficiency of the
 190 CML P�Q,CEDURE, VOLUME I
THE BAR LECTURES SERIES
cause of action (Agrarian Reform Beneficiaries Association
v. Nicolas, 567 SCRA 540, 552). The court may consider, in
addition to the complaint, the appended annexes or documents,
other pleadings of the plaintiff, or admissions in the records
(Zepeda v. China Banking Corporation., supra). The reason is
that such annexes,are conside:red parts of the compla,int (Sea­
Land Service, Inc� v. Court of Appeals, '327 SCRA 135, 140;
Alberto v. Court of Appeals, 334 SCRA 756).
The case of Alberto v. Court of Appeals, ibid., 768-769 is
enlightening:
"It is only logical for the lower court to consider
all these pleadings in determining whether there was a
sufficient cause of action x x x So long as those attached
pleadings are procedurally responsive to the complaint,
-
then they may be considered in evaluating the sufficiency
of the cause of action in the complaint. x x x Strictly
limiting the evaluation of the merits of the complaint to
its averments or allegations would be too constricting an
interpretation of the rule. It must be remembered that
the complaint itself is accompanied by documentary
evidence attached as annexes. The responsive pleadings,
in addition, though not attachments to the complaint,
clarify its merits since they are already part of the records
of the case and should,.therefore, be considered."
Failure to state a cause of action and lack of a cause of action
1. A fair reading of jurisprudence shows that a failure
to state a cause of action is not the same as an absence or
lack of a cause of action. Note that under Rule 16, the ground
for dismissal, in relation to a cause of ac;tion,_ is not "lack or
absence of a cause of action." The ground is that "the pleading
asserting the claim states no cause of action" (Sec. l[g], Rule
16; San Lorenzo Village Association, Inc. v. Court of Appeals,
288 SCRA 115, 126). This provision points merely to a 'failure
to state a cause of action' and not a 'lack or absence of a cause
of action.'
2. The failure of a complaint to state a cause of action
does not mean that the plaintiff "lacks a cause of action.'' It
CHAPTER III 191
CAUSES OF ACTION, ACTIONS, AND PARTIES
only means that the complaint's allegations are insufficient
for the court to know that the rights of the plaintiff were
violated by the defendant. Thus, even if it be actually true that
the defendant violated the rights of the plaintiff, causing the
latter to incur damage or injury, if the elements constituting
such violation are _not set forth in the colllplaint, th� pleading
will state no cause of action):
3. Jurisprudence aptly explains that failure to state
a cause of action is different from lack of a cause. of action.
Failure to state a cause of action refers to the insufficiency
of the pleading, and is a ground for dismissal under Rule 16
of the Rules of Court. On the other hand,· lack of a cause of to
action refers to a situation where the evidence does not prove ☒failure
state
a
the cause of action alleged in the pleading. The remedy in the
first is to move for the dismissal of the pleading, while the cause of
remedy in the second is to demur to the evidence (Butuan action
Development Corporation v. The Twenty First Division of the lack
↳
Court of Appeals, G.R. No. 197358, April 5, 2017). The terms cause of a
are not interchangeable (Asia Brewery, Inc. v. Equitable PCI of
Bank, [now Banco De Oro-EPCI, Inc.], G.R. No. 190432, April
action .
25, 2017).
A more recent pronouncement explains that failure
to state a cause of action refers to the insufficiency of the
· allegations in the pleading. Lac' k of a cause of action refers
to the insufficiency of the factual basis for the action. Lack of
a cause of action is not a ground for motion to dismiss under
Rule 16, while failure to state a cause of action is a ground
for a motion to dismiss under the same Rule (Trillanes IV v.
Castillo-Marigomen, G.R. No. 2234_51, 'Jv!.arch 14, 2018).
An earlier case more clearly declares:
"Failure to state a cause of action is not the
same as lack of cause of action; the terms are not
interchangeable. It may be observed that lack of cause
of action is not among the grounds that may be raised in
a motion to dismiss under Rule 16 of the Rules of Court.
The dismissal ofa Complaint for lack of cause of action is
based on Section 1 of Rule 33 x x x

192 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
"If the Complaint fails to state a cause of action,
=
a motion to dismiss must be made before a responsive
pleading is filed; and the issue can be resolved only on
the basis of the allegations in the initiatory pleading. On
the other hand, if the Complaint lacks a cause of action,
the motion to dismiss must be filed after the plaintiff has
.rested its case.
"In tne first situatibn, the veracity of the allegations
is immaterial; however, in the second situation, the judge
must determine the veracity of the allegations based on
the evidence presented" (Asia Brewery, Inc. u. Equitable
PCI Bank [Now Banco De Oro, EPCI, Inc.], G.R. No.
190432, April 25, 2017).
4. As previously stated, a motion to dismiss grounded on
failure to state a cause of action refers only to the insufficiency
of the pleading (Yap-Co v. Uy, G.R. No. 209295, February
11, 2015; see Trillanes N v. Castillo-Marigomen, G.R. No.
223451, March 14, 2018). Hence, when the affirmative defense
of dismissal is grounded on failure to state a cause of action,
a ruling thereon should be based on the facts alleged in the
complaint (Virata v. Ng Wee, G.R. No. 221135, July 5, 2017)
and not based on the truth of the allegations. The veracity of
the allegations would be material only when the motion to
dismiss is based on lack of a cause of action in a demurrer to
evidence under Rule 33.
Importance of the allegations in the complaint
1. The cause of action in a complaint is not what the
designation of the complaint states, but what the allegations in
the body of the complaint define and describe. The designation
or caption is not.controlling for it is not even an indispensable
part of the complaint (De la Cruz v. Court ofAppeals, 510 SCRA
103, 117). For instance, a complaint captioned as an unlawful
detainer case could actually be an action for forcible entry
where the complaint alleges that the plaintiff was deprived of
the possession of the premises by force, intimidation, stealth,
threat or strategy.
2. Similarly, a petition denominated as a petition for
review on certiorari under Rule 45 (which is supposed to
CHAPTER III 193
CAUSES OF ACTION, ACTIONS, AND PARTIES
raise only pure questions of law) may be considered by the
Court as a petition for certiorari under Rule 65 because tlie
petition alleged grave abuse of discretion amounting to lack
of jurisdiction (Flores v. Office of the Ombudsman, 389 SCRA
1�7, 132; Ligon v. Cour( of Appeals, 294 SCRA. 73, 84-85).
•
• C
• · 3. · Wher�, from a ,reading of,the allegl:ltions in the
corriplaint anci'the relief� prayed for; the ultimate objective
of the plaintiffs is to obtain title to real property, it should
be ,filed with the proper· court having jurisdiction over the
assessed value of the property subject thereof even if the
complaint is denominated as an action to annul a deed of sale
to real property. The nature of an action is not determined by
the caption of the complaint, but by the allegations therein
together with the reliefs prayed for (Barangay Piapi v. Talip,
469 SCRA 409, 413).
4. If the allegations in the complaint make out a case for
1:1.nlawful detainer, the Municipal Trial Court is not divested of
its jurisdiction to take cognizance of the case merely because
the defendant claims ownership over the property subject of
the action. The nature of the action cannot be made to depend
upon the defenses set up in the court or upon a motion to
dismiss; otherwise, the question of jurisdiction would depend
almost entirely on defendant (De la Rosa v. Roldan, 501 SCRA
3f, 51).
Effect of a finding that the complaint states a cause of action
A finding that the complaint states no cause of action is
a ground for the dismissal of the said complaint. However,
"x x x 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 x x x the hearing of the
case for presentation of evidence by the parties" (lvlanaloto v.
Veloso IIL 632 SCRA 347, 362-363). In other words, when the
court finds that the complaint states a cause of action, this
means that the same cannot be dismissed for failure to state
a cause of action, but the claiming party has the obligation
to offer evidence to support the allegations constituting the
elements of his cause of action.

194 CML P�OCEDURE, VOLUME I
THE BAR LECTURES SERIES
Cause of action as applied to administrative cases
While the concept of a cause of action is one that is essen­
tial to the existence of an ordinary civil action, in administra­
tive cases, however, the issue is not whether the complainant
has a cause of action against the respondent, but whether the
,respondent has breached the norms and standards ofthe of-
..'' flee (Mutia v. Pacarie/4, 494 SCµA 448, 453j:'
· Cause of action arising from law
A cause of action may arise from the violation of a law
or a rule. For example, .in illegal strikes, the cause of action
arises from the failure of the labor organization to comply
with the statutory requirements for a legal strike. In illegal
dismissals of employees, the cause of action arises from
dismissals without just or valid causes (Club Filipino, Inc. v.
Bautista, G.R. No. 168406, January 14, 2015).
Cause of action based on contracts
Does a cause of action for breach of contract require
an allegation and proof of the negligence of the defendant?
Jurisprudence consistently answers in the negative. A cause
of action based on breach of contract merely requires the
following elements: (a) the existence of a contract, and (b) the
breach of the contract. ·
In breach of contract of carriage, for instance, the action
can be prosecuted merely by proving the existence of the
contract, and the fact that the obligor failed to transport
the passenger safely to his destination (Calalas v. Court of
Appeals, 332 SCRA 356, 361; FGU Insurance Corporation
v. G.P. Sarmiento Trucking Corporation, 386 SCRA 312,
320). In other words, the mere proof of the existence of the
contract, and the failure of its compliance justify, prima facie,
a corresponding right of relief (Guanio v. Makati Shangri-La
Hotel and Resort, Inc., 641 SCRA 591, 596). Bar 2004
Thus, if a carrier is sued based on a breach of contract
of carriage, negligence need not be proven by the plaintiff,
negligence not being an element of the cause of action of a suit
CHAPTER III 195
CAUSES OF ACTION, ACTIONS, AND PARTIES
predicated upon a breach of contract of carriage. This is true,
whether or not the defendant is a public or private carrier.
However, where the defendant is a common carrier there is an
additional reason for dispensing with proof of negligence, i.e.,
negligence of the common carrier is presumed (Art. 1735 and
Art. 1756, Civil Code of the Philippines).
Cause of action based on the vicarious liability 'of an
employer
1. As a rule, negligence, as an element of a quasi­
delict, must be alleged and proved (Art. 2176, Civil Code of
the Philippines) but the negligence of those persons described
under Art. 2180 of the Civil Code, although based on a quasi­
delict, is presumed.
2. Under Art. 2180 of the Civil Code, following the
well-recognized doctrine of vicarious liability, certain persons
-
like the father, mother, guardian, owners and managers of
an establishment or enterprise, employers, the State, and
teachers or heads of establishments of arts and trades are,
under specified conditions, liable for the acts of persons for
whom they are responsible.
Thus, an employer, for instance, is liable for the damage
caused by his employees and household helpers acting within
→
the scope of their assigned tasks. The emp!oyer's negligence
in the selection and supervision of his employee is presumed,
and his liability shall . only cease if he successfully proves
his observance of the diligence required of a good father of a
family to prevent damage.
Thus, it has been ruled that when an injury is caused
to another by the negligence of the employee, tliere instantly
arises a juris tantum presumption of law that there was
negligence on the part of the employer, either in the selection
or supervision, or both, of the employee (Manliclic v. Calaunan,
512 SCRA 642, 662-663). The presumption, however, may
be rebutted by a clear showing on the part of the employer
that it had exercised the care and diligence of a good father
of a family in the. selection and supervision of his employee.
 196 CML PROCEDURE, VOLUME I
THE BAR !.JECTURES SERIES
Hence, tci escape solidary liability for quasi-delict committed
by an employee, the employer must adduce sufficient proof
that it exercised such degree of care (Travel & Tours Advisers,
Incorporated, G.R. No. 199282, March 14, 2016).
Cause of action in environmental cases
In
environme,iital cases, I'[T]he comp{aint shall:..state that
it is an environmi:mtal case,' and the law involved" (Sec. 3,
Rule 2, Part 2, Rules of Procedure for Environmental Cases).
Cause of action for partition raising issue of owners,-.ip
A cause of action for partition does not preclude the
settlement of the issue of ownership. An action for partition
is premised on the existence or non-existence of co-ownership
between the parties. Unless and until the issue of co­
ownership is definitely resolved, it would be premature to
effect a partition of an estate (Spouses Butiong v. Plazo, G.R.
No. 187524, August 5, 2015).
Action distinguished from cause of action (Bar 1999)
An action is the suit filed in court for the enforcement or
protection of a right, or the prevention or redress of a wrong
(Sec. 3[a], Rule 1, Rules of C,ourt). A cause of action is the basis
of the action filed. Under the Rules of Court, "every ordinary ·
civil action must be based on a cause of action" (See Sec. 1,
Rule 2, Rules of Court).
Splitting a single cause of action (Bar 1996; 1999; 2005;
2017); reason for prohibition
1. Splitting a single - cause of action is the act of
instituting two or more suits on the basis of the same cause
of action (Sec. 4, Rule 2, Rules of Court). In splitting a cause
of action, the pleader divides a single cause of action, claim or
demand into two or more parts and brings a suit for each part.
This cannot be done because splitting a single cause of action
is expressly prohibited by the Rules of Court which specifically
- action which should be pursued in a single complaint (City of
mandates that, "A party may not institute more than one suit
CHAPTER III 197
CAUSES OF ACTION, ACTIONS, AND PARTIES
for a single cause of action" (See Sec. 3, Rule 2, Rules of Court;
See also Riviera Golf Club, Inc. v. CCA Holdings, B. V, G.R.
No. 173783, June 17, 2015).
2. The practice of splitting a single cause of action
is discouraged. because it breeds multiplicity of suits, clogs
the court dockets, leads to vexatious litigation, operates as
an in�trument of harassment, and g(:)nerates unnecessary·
expenses to the :parties. As jti.rispruderjce puts it: ··
"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" (Dynamic Builders & Construction Co. [Phil.], Inc.
v. Presbitero, Jr., G.R. No. 174202, April 7, 2015).
3. The rule against splitting a single cause of action
applies not only to complaints but also to counterclaims and
cross-claims. Thus, it was held that to interpose a cause of
action in a counterclaim, and again invoke it in a complaint
against the same person or party, would be splitting a caus
of action not sanctioned by the Rules (Mariscal v. Court of
Appeals, 311 SCRA 51, 56).
4. A cause of action may give rise to several reliefs, but
only one action can be filed, not one action for each relief (For
fur.ther r.eadings, see Riviera Golf, Inc. v. CCA Holdings B. V,
supra). For instance, when one files a complaint for unlawful
detainer on the ground of non-payment of rentals, the
complaint must include the recovery of the rentals in arrears,
such recovery being an integral part of the cause of action for
unlawful detainer.
An action for the recovery of taxes should also include
the demand for surcharges resulting from the delinquency in
the payment of said taxes. The non-payment of taxes gives
rise to two reliefs: (a) the recovery of the unpaid taxes; and (b)
the recovery of the surcharges resulting from non-payment
of the taxes. These two reliefs are results of a single cause of
Bacolod v. San Miguel Brewery, Inc., 29 SCRA 819, 827).
 198 CIVIL PROCEDURE, VOLUME I
THE BARLECTURES SERIES
5. · The act of a defendant in taking possession of the
plaintiffs land by means of force and intimidation constitutes
a single act of dispossession but gives rise to two reliefs: (a)
recovery of possession, and (b) damages arising from the
loss of possession. Both of these reliefs result from a single
wrong, hence, constituting but a single cause of action. Each
ofthem cannot be the subject of two'separate actions. Hence,
1
ah action for ·t'orcible entry should iii.elude no{only the piea
f�r restoration of possession, but also claims· for damag13s
arising out of the forcible entry. The claim for damages cannot
be filed separately. This rule presupposes, however, that the
damages claimed directly arose from the act of dispossession
such as the deprivation of the use of the property and other
consequential damages (For further readings, see Progressive
Development Corporation, Inc. v. Court of Appeals, 301 SCRA
637, 652-653; For further readings, See also Umale v. Canoga
Park Development Corporation, G.R. No. 167246, July 20,
2011; emphasis made by the Court).
It must be emphasized that the claim for damages in
a forcible entry case refers to the damages sustained by the
plaintiff in depriving him of the use and possession of the
property, and not the damages which he may have suffered
by acts which have no direct relation to the loss of material
possession. In other words, where the claim for damages arose
out of separate acts committed by. the defendant after the
occupancy of the premises subject of the action, such claim
constitutes a separate cause of action and not an integral part
of a cause of action based on forcible entry.
In one case, the defendant forcibly and unlawfully
entered the leased properties of the plaintiff. Once inside, he
barricaded the entrance to the fishponds and set up a barbed
wire fence along the road going to the fishponds. Then, after
occupying the premises, he harvested several tons of milkfish,
fry and fingerlings owned by the plaintiffs, ransacked and
destroyed a chapel built in the premises, stole religious icons
and even decapitated the heads of some of them. All these
happened after the act of dispossession occurred. The plaintiff
filed a complaint for forcible entry and another complaint
.CHAPTER III 199
CAUSES OF ACTION, ACTIONS, ANP PARTIES
for damages against the defendant. An issue which arose
from the cases filed is whether, during the pendency of tbe
complaint for forcible entry, the plaintiff can independently
institute and maintain an action for damages which arose
from incidents occurring after the act of dispossession by
. the defendant. The Court sustained the separate action for
d�mages and ruled that_there was i;io litis penq�ncia invo�yed.
The Court explained that the clairp:for damages has no d,1rect
relation to the loss of possession of the premises but o
resulted
from acts separate from the forcible entry (CGR Corporation
v. Treyes, G.R. No. 170916, April 27, 2007).
6. A single act may sometimes violate several rights
of a person. Nevertheless, the plaintiff has only one cause of
action regardless of the number of rights violated. If a car
owner sustains injuries to his person and damage to his car as
a result of the negligent driving of the defendant, two rights
of the plaintiffs have been violated, namely, his personal right
to be safe in his person, and his property right to have his car
intact and free from any damage.
Under the circumstances, may the plaintiff file a complaint
for the recovery of damages to his person and another complaint
later to recover damages to his car? He could not because to do
so would be to split a single cause of action. If, however, a
passenger in the same car was also injured, the injuries to the
passenger gives rise to a cause of action separate ancl distinct
from those sustained by the car owner because distinct rights
belonging to different persons have been violated. The injured
passenger may file a suit against the defendant separate from
the suit filed by the car owner.
7. A tenant illegally ejected from the land is entitled to
two reliefs - one for reinstatement and another for damages.
Since both reliefs arose from the same cause of action,
they should be alleged in one complaint (Gozon u. Vda. De
Barrameda, 11 SCRA 376, 379).
8. A cause of action for the reconveyance of title over
property does not include a cause of action for forcible entry or
unlawful detainer. They are distinct causes of action. Hence,
 200 . CML PROCEDURE, VOLUME I CHAPTER III 201
THE BAR EECTURES SERIES CAUSES OF ACTION, ACTIONS, AND PARTIES

the pendency of an action for reconveyance of title does not alternative, not cumulative or successive, and each remedy
d �vest the Municipal Trial Court of its jurisdiction to try an is complete by itself. Thus, if the creditor-mortgagee
eJectment case of either forcible entry or unlawful detainer. opts to foreclose the real estate mortgage, he waives the
What �s involved in an ejectmentcase is possession de facto or action for the collection of the unpaid debt, except only for
_
material possess10n. In an action for reconveyance the issue
the recovery of whatever deficiency may remain in the
outstanding obligation of the debtor-mortgagor xxx. The
is ownership (Del Cruz v. Court of Appeals, 133 SCRA 520,
availment of the remedy of foreclosure bars recourse to
527; Tec�on v. Guti�rrez, 452 SQRA 781, 7Ej7).
°:
the subsequent filing of a perl.jrmal action ftjr collection of
9
.
·:A
bank cahnot file a �ivil action-�gainst th/debtor the same debt. x Xx."
for the collection of the debt and, then, subsequently file an
_
a�t10n to foreclose the mortgage. This would be splitting· a 10. In one case, before the lease contract expired, the
smgle cause of action (Danao v. Court of Appeals, 154 SCRA lessor filed an unlawful detainer case against the lessee
allegedly for violation of stipulations in the lease contract
446, 448; Industrial Finance Corp.· v. Apostol, 177 SCRA · 521'
regarding the use of the property. Under the contract, the
524). Bar 1999; 2017
lessee was allowed to use the leased property as a parking
It is important to bear in mind that a loan contract is space for light vehicles and as a site for a small drivers'
an agreement separate from the mortgage even if both refer canteen - but may not utilize the subject premises for other
to one and the same obligation. These contracts, however do purposes without the respondents prior written consent. The
not constitute separate causes of action. They are parts of �ne lessee, however, allegedly in violation of the lease contract,
and the same cause of action. Hence, there. is only one cause constructed restaurant buildings and other commercial
of action. establishments on the lot and also subleased the property t
various tenants.
In loan contracts, secured by a real estate mortgage, the
_
creditor-mortgagee has a single cause of action against the The MTC decided the ejectment case in favor of the lessee.
debtor-mortgagor with two alternative remedies to recover On appeal, the RTC affirmed in toto the MTC decision but
the debt - to file a personal action to collect a sum of money another RTC, to which the lessor's motion for reconsideration
or to file a real action to foreclose on the mortgage security. was assigned, granteq the lessor's motion thereby reversing
_ and setting aside the MTC'decision. Interestingly, during the
A remedy IS deemed chosen upon the filing of the suit for
. pendency of the petition for review before the CA, the lessor
collect10n or upon the filing of the complaint for foreclosure. If
�he plaintiff had already instituted foreclosure proceedings, he filed another case for unlawful detainer against the lessee.
IS now barred from availing of an ordinary action for collection This time, the respondent used as a ground for ejectment
of a sum of money and vice versa (See Marilag v Martinez the expiration of the lease contract. Does the second case for
. ejectment constitute a splitting of a single cause of action and
G.R. No. 201892, July 22, 2015). . _
hence, dismissible on the ground of litis pendencia?
IVlarilag v. Martinez further expounds:
The Court categorically ruled that the two unlawful
"In loan contracts secured by a real estate mortgage,
. detainer cases involved different causes of action. The Court
. rule 1s
ihe that the creditor-mortgagee has a single cause explained, thus:
of action against the debtor-mortgagor, i.e., to recover the
debt, through the filing of a personal action for collection "Generally, a suit may only be instituted for a single
of sum of money or the institution of a real action to cause of action. - If two or more suits are instituted on
foreclose on the mortgage security. The two remedies are the basis of the same cause of action, the filing of one or
202 CIVIL PROCEDURE, VOLUME I
THE BARLECTURES SERIES
a judgment on the merits in any one is ground for the
dismissal of the others.
"Several tests exist to ascertain whether two suits
relate to a single or common cause of action, such as
whether the same evidence would support and sustain
both the first and second causes ofaction (also known as the
same evidence test), 0 or :v,hether the _defenses in one case
';i:nay be used to substantiate the coo;i..plaint in th:� other.
. Also fundamental is the test of determining whether
_the cause of action in the second ,case existed at the
time of the filing of the first complaint.
"Of the three tests citecl, the third one is especially
applicable to the present case, i.e., whether the cause
of action in the second case e'Xisted at the time of the
filing of the first complaint and to which we answer in
the negative. The facts clearly show that the· filing of
the first ejectment case was grounded on the petitioners
violation of stipulations in the lease contract, while the
filing of the second case was based on the expiration of
the lease contract. At the time the respondent filed the
first ejectment complaint x x x the lease contract between
the parties was still in effect. x x x It was only at the
expiration of the lease contract that the cause of action
in the second ejectment complaint accrued and made
available to the respondent as a ground for ejecting the
petitioner. Thus, the cause of action in the second case
was not yet in existence at the time of filing of the first
ejectment case x x x" (Umale v. Canoga Park Development
= had nothing to do with the issue of the unlawfulness of the
Corporation, G.R. No. 167246, July 20, 2011; emphasis
made by the Court).
11. In a case of a more recent vintage, the lessee of a
sugarland continued to use the property for several years even
after the expiration of the lease contract without any express
renewal or extension of the contract. The lessee, however, paid
the lessor the annual compensation for the use and occupancy
of the premises. The lessor, on his part, contended that he was
never apprised of how the annual rentals were determined by
the lessee. He also pointed out that the payments were often
delayed.
CHAPTER III . 203
CAUSES OF ACTION, ACTIONS, AND PARTIES
In March 20 12, the lessor sent to the lessee a final demand
to vacate the property but the lessee,. ignoring the demand,
continued to use and occupy the land. 'Fhis prompted the lessor
to file a complaint for unlawful detainer against the lessee.
During the pendency of th:e case, the lessor discovered that,
bas·ed on the statistics and information provided by the Sugar
Regl.!latory Administration, the previolJ-s payments made to .
.:··.·. . .·.
him by the lessE:)ewere less than what he should hive received.·
�-.···' . ", '_ ;'":
Feeling shortchanged, the lessee filed a:h action f�r collection
of the sum of more than three hundred thousand ·(P300, 000) .
representing the balance of annual rentals due him before
the action for unlawful detainer was filed. The lessee filed a
motion to dismiss based on litis pendencia alleging a·splitting
of a single cause of action. Should the second complaint be
dismissed on the ground invoked by the lessee?
The question was answered by the Court in the negative.
While conceding that the two actions involved the same
parties and the same property, the filing of a complaint for
collection of a sum of money, other than that sustained as
result of the dispossession or that caused by the loss of the
use and occupation of the property, could not be considered
as splitting of a cause of action. There is no splitting because
the complaint for collection prays for the payment of the
differential amount representing the unpaid balance of the
rental fees. The complaint to recover the deficiency has no
direct relation to the loss or possession of the premises and
occupancy or possession in the unlawful detainer case. There
is, therefore, no identity of causes of action.
_In unlawful detainer cases, the Court further explained,
the recoverable damages are reckoned from the time the
possession of the property became unlawful. Prior to the lapse
of the period to vacate the property, as stated in the demand
letter, the damages sustained by the plaintiff bear no direct
relation to the lessee's refusal to vacate the property. Such
damages must be claimed in an ordinary action. In the instant
case, the sum sought to be recovered in the second action
refers to the deficiency in the amount of rentals prior to the
 204 CML PROCEDURE, VOLUME I
THE BAI(LECTURES SERIES
·· lessee's ·unlawful detention of the property and has no direct
connection to the loss of material possession that gave rise
to the action for unlawful detainer (See Lajave Agricultural
Management and Development Corporation v. Spouses
Agustin, G.R. No. 223785, November 7, 2018).
. 12. Does a previ<?us final judgment de�ying a petition
Jor declaration of nullity on the ground 'of psychological
incapacity bar a subsequent petition for declaration of n'ullity
on the ground of lack of marriage license?
One early case answered this question in the affirmative.
Here, the petitioner filed a petition seeking a declaration
of nullity of his marriage to respondent citing respondent's
alleged psychological incapacity. The trial court denied the
petition for failure to prove the material allegations in the
petition. After the dismissal became final, the petitioner
filed another petition for declaration of nullity of marriage,
this time alleging that his marriage with respondent was
null and void due to the fact that it was celebrated without a
valid marriage license. The respondent filed an answer with
a motion to dismiss praying for the dismissal of the petition
O_O
on the ground of res judicata and forum shopping. In its
barest essentials, the motion to dismiss was predicated on the
splitting of a single cause of action. The trial court granted the
motion to dismiss.
When the case reached the Supreme Court, the petitioner
argued that while the reliefs prayed for in the two cases were
the same, that is, the declaration of nullity of his marriage
to respondent, the cause of action in the earlier case was
distinct and separate from the cause of action tn the present
case because the operative facts upon which they were based
were different. Also, the evidence necessary to sustain the
first petition which was anchored on the alleged psychological
incapacity of respondent is different from the evidence
necessary to sustain the present petition which is anchored
on the purported absence of a marriage license. Hence, there
was no violation of the rule on forum shopping or of the rule
which proscribes the splitting of a cause of action.
^
CHAPTER III 205
CAUSES OF ACTION, ACTIONS, AND PARTIES
In holding that the arguments of the petitioner were
untenable, the Court declared, in no uncertain terms:
"Petitioner, however, forgets that he is simply
invoking different grounds for the same cause of action.
By definition, a .cause of action is the a,ct or omission
by which a party violates the right of another. In both
•- the declaratio.n
petitiops, petitioner has the same.cause
of nullity of his marriage to respondent. What differs is
the ground upon which the cause of action is predicated.
These grounds cited by petitioner essentially split the
various aspects of the pivotal issue that holds the key
to the resolution of this controversy, that is, the actual
status of petitioner and respondent's marriage.
"Furthermore, the instant case is premised on the
claim that the marriage is null and void because no valid
cele.bration of the same took place. due to the alleged
lack of a marriage license. In Civil Case No. SP 4341-95,
however, petitioner impliedly conceded that the marriage
had been solemnized and celebrated in accordance with
law. Petitioner is now bound by this admission. The
alleged absence of a marriage license which petitioner
raises now could have been presented and heard in the
earlier case. Suffice it to state that parties are bound
not only as regards every matter offered and received to
sustain or defeat their claims or demand but as to any
other admissible matter which might have been offered
for that purpose and of all othe� matters that could have
been adjudged in that case.
"It must be emphasized that a party cannot evade
or avoid the application of res judicata by simply varying
the form of his action or adopting a different method of
presenting his case.
XXX
"In sum, litigants are provided with the options on
the course of action to take in order to obtain judicial
relief. Once an option has been taken and a case is filed in
court. the parties must ventilate all matters and relevant
issues therein. The losing party who files another action
regarding the same controversy will be needlessly
squandering time, effort and financial resources because
206 CIVIL PROCEDURE, VOLUME I
THE BAR tECTURES SERIES
he is barred by law from litigating the same controversy
all over again.
"Therefore. having expressly and impliedly conceded
the validity of their marriage celebration. petitioner
is now deemed to have waived any defects therein. For
this reason, the Court finds that the present action for
declaration of nullity of marriage on the ground of lack
of marriage license is barred X X x" (Mallion V. Alcan'tara,
G.R. No. 141528, October 31, 2006).
÷
Note: Instead of relying on the theory of the "implied
admission of the validity of marriage," the dismissal could
have been also justified by considering whether the cause of
action in the second case existed at the time of the filing of the
first complaint. Obviously, the absence of a marriage license
supporting the second action for declaration of nullity, is a
ground that already existed at the time of the filing of the
first action. Hence, it should have been invoked when the first
action was filed.
Anticipatory breach
As a general rule, a contract to do several things at
several times is divisible in its nature. This kind of obligation
authorizes successive actions and a judgment recovered for
a single breach does not bar a suit for a subsequent breach.
However, if the obligor manifests an unqualified and positive
refusal to perform a contract, though the performance of the
same is not yet due, and the renunciation goes to the whole
contract, it may be treated as a complete breach, which will
entitle the injured party to bring his action at once. In this
case, the breach is considered a total breach and there can only
be one action and the plaintiff must recover all his damages
therein (Blossoms & Co. v. Manila Gas Corporation, 55 Phil.
226, 240-241).
Assume that Mr. DD undertook to pay his debt of P5
million in five equal annual installments with each installment
due on the last day of every year without need for a demand.
The obligation of Mr. DD is a divisible one and each breach
is a cause of action in itself. Hence, if the first installment is
CHAPTER III 207
CAUSES OF ACTION, ACTIONS, AND PARTIES
not paid, the failure to pay authorizes the creditor to file a
suit for such amount corresponding to the first installment.
If the next installment is not paid and the first case has
been finally adjudicated upon, a second suit may be filed for
the next unpaid installment and would not be barred by res
judicata. If before the due date of the first installment, Mr.
DD, for whatever personal reason he may have, unequivocally
manif�sts to the creditor his .- absolute refusal to co'.mply with
any of the promised installments, there is an anticipatory
breach which would entitle tlie creditor .to file a single action
to collect the entire debt.
Effect of splitting a single cause of action (Bar 1998; 1999)
1. If two or more suits are instituted for a single cause
of action, "the filing of one or a judgment upon the merit
in any one is available as a ground for the dismissal of th
others" (Sec. 4, Rule 2, Rules of Court). The remedy then of th -
defendant is to file a motion to dismiss.
· Hence, if the first action is pending when the second action
is filed, the latter may be dismissed based on litis pendentia,
i.e., there is another action pending between the same parties
for the same cause (Sec. l[e], Rule 16, Rules of Court). If a
final judgment had been rendered in the first action when the
second action is filed, the latter may be dismissed based on
res judicata, i.e., that the cause of action is barred by a prior
judgment (Sec. l{f], Rule 16, Rules of Court).
2. Note that it need not be the second action filed that
should be dismissed. The phraseology of the present rule
(Sec. 4, Rule 2, Rules of Court) does not necessarily confine
the dismissal to the second action. 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.
Joinder of causes of action (Bar 1996; 1999; 2000; 2005;
2011; 2012; 2015)
1. Joinder of causes of action is the assertion of as
many causes of action as a party may have against another
208 CML PROCEDURE,VOLUME I
THE BAR LECTURES SERIES
in one pieading alone (Sec. 5, Rule 2, Rules of Court). It is the
process of uniting two or more demands or rights of action
in one action (1 C.J.S., Actions §61; See Unicapital, Inc. v.
Consing, Jr., G.R. No. 192073, September 11, 2013).
fllustration: D is the debtor. of C for P350,000 due on
January 5, 2018. D likewise owes C P350,000 du� on February
°
13, 2018. Both debts ar� evidenced ''by distin¢t promissory
notes and incurred for different reasons. D has not paid the
debts despite demand. Each debt is a separate cause of action
because each is the subject of a different transaction. However,
under the rule on joinder of causes of action, 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.
2. When the causes of action accrue in favor of the same
plaintiff and against the same defendant, i.e., there is only one
plaintiff and one defendant, it is not necessary to ask whether
or not the causes of actions arose out of the- same transaction
or series of transactions and that there exists a question -of
law or fact common to all the plaintiffs or defendants. This
question is only relevant when there are multiple plaintiffs or
multiple defendants. In the hypothetical just discussed in par.
1, is C obliged to join the causes of action against D? Answer:
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 causes of action is not compulsory.
It is merely permissive. Bar 1999 The rule uses the word
"may," not "shall" (Sec. 5, Rule 2, Rules of Court).
In the example, in case C decides in favor of a joinder, the
suit shall be filed with the Regional Trial Court because the
total amount of the debts is within that court's jurisdiction.
Under the Rules, where the claims in all the causes of action
are principally for the recovery of money, the aggregate
amount claimed shall be the test of jurisdiction (Sec. 5[d],
Rule 2, Rules of Court; Sec. 33[1], B.P. 129, as amended).
This situation follows the so-called totality test for purposes
of jurisdiction.
CHAPTER III 209
CAUSES OF ACTION, ACTIONS, AND PARTIES
3. Assume that aside from the above claims, C, as
lessor, also wants to eject D from the apartment occupied by
D as his lessee. May the action be joined with the claims for
money? Answer: No. An action for ejectment is a special civil
action. This kind of action cannot be joined with ordinary
civil actions. The rule is clear: "The joinder shall not include
special civil'actions or actions gove;rned by special rules", (Sec.
5[b], Rule 2, Rules of Court). Confusion in the applicati,on �f
procedural rules would certainly arise from the joinder of
ordinary and special civil actions in a single complaint.
4. An action for injunction and quieting of title to
real property cannot be joined in a single complaint. While
injunction is an ordinary civil action, quieting of title is
governed by Rule 63, making it a special civil action (Salvador
v. Patricia, Inc., G.R. No. 195834, November 9, 2016).
5. Assume that C has the following causes of action
against D: (a) Pl million based on a note; (b) Pl million based
on torts; and (c) foreclosure of a real estate mortgage. May th
causes of action be joined? They can be joined except the action
for foreclosure of real estate mortgage which is a special civil
action.
6. An action for collection of a sum of money cannot b
properly joined with an action for forcible entry or unlawful
detainer. The former is an ordinary civil action requiring a
full-blown trial, while the latter two are special civil actions
which require a summary procedure (Lajave Agricultural
Management and Development Enterprises, Inc. v. Spouses
Javellana, G.R. No. 223785, November 7, 2018).
Joinder when there are multiple parties
If there is only one plaintiff and one defendant, the rule
on joinder of parties does not apply. The reason is simple.
There are no parties to be joined. It is when the fact pattern
-
of the case indicates the presence of multiple parties (like two
or more plaintiffs or two or more defendants or both) that
the joinder of causes of action becomes subject to the rule on
joinder of parties under Sec. 6 of Rule 3 of the Rules of Court.
210 CIVIL PROCEDURE, VOLUME I
. THE BAR LECTURES SERIES
Specifically, before causes of action and parties can be
joined in a complaint involving multiple parties, the following
must be complied with: (a) the right to relief must arise out
of the same transaction or series of transactions and (b)
there must be a question of law or fact common to all parties
· (Central Bank Board of Liquidators v. Banco "Filipino Savings
an,d Mortgage Bank, G.I(,. No. 173399, February 21, 2017).;To
riiterate, this rule applies only when there a:re two or rrfore
plaintiffs and/or two or more defendants. It does not apply
when there is only one plaintiff and one defendant.
There are multiple parties, for instance, if C is the creditor
of D for P350,000 and also of E for P375,000. Both debts are
due and these debts have been contracted separately. MayC
join D and E as defendants in the same complaint? Answer:
No. Where a party sues two or more defendants, it is necessary
for the causes of action to arise out of the →
same transaction or
series of transactions and that there should be a question of
- The plaintiff may join, in a single statement of claim, on
law or fact common to them. 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 the subject
of a separate complaint.
Suppose Pis a passenger in a bus owned by O and driven
byD. Because of the negligence ofD, P sustained injuries when
the vehicle fell into a ditch by the roadside. May P, as plaintiff,
join O and D as defendants· in the same complaint based on
a quasi-delict? Answer: Yes. The liability of O and that of D
arose out of the same accident which gave rise to a common
question of law or fact. Note that the existence of a contractual
relationship does not preclude a suit based on a quasi-delict.
0 may be sued under a quasi-delict, as an employer of D if P so
desires (Art. 2180, Civil Code of the Philippines; Air France v.
Carrascoso, 18 SCRA 155). In the same accident, two or more
injured passengers in the same mishap, may join as plaintiffs
against the driver and the common carrier as joint defendants.
If A and B both sign a promissory note for Pl million and
bind themselves to be jointly liable for the debt in favor of C,
there are two distinct obligations within the same promissory
note, namely: (a) the obligation of A to C for P500,000; and (b)
CHAPTER III 211
CAUSES OF ACTION, ACTIONS, AND PARTIES
the obligation of B to C for P500,000. Under Art. 1208 of the
Civil Code of the Philippines, unless otherwise indicated by
the nature of the obligation or by law, the debt or credit shall
be presumed divided into as many equal shares as there are
creditors or debtors. In other words, the obligation under the
promissory note in the illustration is presumed to be joint, not·
solidary; If the obligation is jpint, C may.sue A alo:p;e or sue
B alone:. This is because the debts are separate and distinct
-€
causes of action. May C, however, join A and B under one
complaint and thereby join the causes of action against them?
Answer: C may join A and B under one complaint. The debt
of A and B arose out of the same transaction, i.e., the same
promissory note and would necessarily give rise to a common
question of law or fact.
Joinder of claims in small claims cases
or more separate small claims against a defendant provided
that the total amount claimed, exclusive of interests and
costs, does not exceed P300,000 (Sec. 8, A.M. No. 08-8- 7-
as amended).
Remedy in case of misjoinder of causes of action
1. 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 of causes of action is not
a ground for dismissal of an action (Sec. 6, Rule 2, Rules of
Court).
For example, if an action for forcible entry is joined in
one complaint with the causes of actions based on several
promissory notes, the complaint should not be dismissed
based on the misjoinder of the forcible entry case. Instead, the
cause of action predicated on forcible entry merely needs to be
severed from the complaint upon motion of a party or by the
⇐
court motu proprio and proceeded with separately in another
action.
 212 CML PROCEpURE, VOLUME I
THE BAR LECTURES SERIES
The applicable provision is unequivocal:
"SEC. 6. Misjo,inder of causes of action. - Misjoinder ·
of �auses of action is not a ground for dismissal of an
action. A misjoined cause of action may, on motion of
a. �arty or on. the initiative of the court, be severed and
pro�eeded with separately."
.. . .. <· i,.:.;
�- ·.While a misjoinder of causes of�ction is not � ground
for dismissa�, yet ifthe plaintiff refuses to sever the misjoined
cause_ o� act10n 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, Inc., G.R. No. 195834, November 9, 2016).
II.ACTIONS
Definition
.
1. An action is the legal and formal demand of one's
n�ht �rom another person made and insisted upon in a court
ofJustice (Bouvier's Law Dictionary, Vol. L 128, 8th Ed.; Words
and Phrases, Vol. 2, 25).
2. In this jurisdiction, it is settled that the terms
"ac�ion" and "suit" are synonymous but the operative act
which conv�rts a claim into an "action" or "suit" is the filing of
the same with a court ofjustice.Filed elsewhere, as with some
other body or office not a court ofjustice, the claim may not be
properly categorized under either term (Lopez v. Compania de
Seguros, 16 SCRA 855, 859).
Civil actions and criminal actions
1. A civil action "is one by which a party sues another
for the enforcement or protection of a right, or the prevention
or r�dress o[ a :,1rong" (Sec. 3[a}, Rule 1, Rules of Court). A
_ following cases under Sec. 1 of Rule 72 of the Rules of Court:
cnmmal act10n , 1s one by which the State prosecutes a person
for an act or omission punishable by law" (Sec. 3[b}, Rule 1,
Rules of Court). .
CHAPTER III 213
CAUSES OF ACTION, ACTIONS, AND PARTIES
2. It has been ruled that "... proceedings are to be
regarded as criminal when the purpose is primarily punish­
ment, and civil when the purpose is primarily compensatory
or remedial ..." (People v. Godoy, 243 SCRA 64, 78).
Actions distinguished from special proceedings (Bar 1996;
199�) :o"
1. The purpose of an action is either to protect a right
or prevent or redress a wrong if the action is civil. If it is a
criminal action, the purpose is to prosecute a person for an act
or an omission punishable by law (Sec. 3[a[b}, Rule 1, Rules of
Court).
2. The purpose of a special proceeding is to establish a
status, a right, or a particular fact (Sec. 3[c], Rule 1, Rules of
Court).
Example: The determination ofwho 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 ofownership
and possession ofreal property.The court, in such an ordinary
action, cannot make a declaration of heirship, because such
declaration can only be made in a special proceeding. Also,
matters relating to the rights offiliation and heirship must be
ven_tilated in the proper special proceeding instituted precisely
for the purpose of determining such rights. The status of an·
illegitimate child, who claims to be an heir to a decedent's
estate, could not be adjudicated in an ordinary civil action like
recovery of property (Heirs of Magdaleno Ypon v. Ricaforte,
G.R. No. 198680, July 8, 2013; Alcantara v. Belen, G.R. No.
200204, April 25, 2017).
The special proceedings under the Rules of Court; applica­
bility of rules in ordinary civil actions
1. Rules of special proceedings are provided for in th
a. Settlement of estate of deceased persons;
b. Escheat; -
twwsiou
of property

214 CNIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
c. Guardianship and custody of children;
d. Trustees;
e. Adoption;
f. Rescission and revocation of adoption;
g. Hospitalization of insane persons;..
: _.:;:. .�
L•:;.
h. '·,Habeas corpus;
1. Change of name;
J. Voluntary dissolution of corporations;
k. Judicial approval of voluntary recognition of
minor natural children;
1. Constitution of family home;
m. Declaration of absence and death; and
n. Cancellation or correction of entries in the civil
registry.
2. The rules of ordinary civil actions have suppletory
application in special proceedings. The rule is clear: "In the
absence of special provisions, the rules provided for in ordinary
actions shall be, as far as practicable, applicable in special
proceedings" (Sec. 2, Rule 72, Rules of Court). A demurrer to
- D objection
evidence in Rule 33 may apply to special proceedings. Bar
2015
3. The enumeration of special proceedings in the Rules
of Court is not exclusive. Special proceedings are also provided
for in cases aside from those mentioned in the Rules.
Examples:
a. Arbitration, under Sec. 22 of R.A. 876 (The
Arbitration Law), is deemed a special proceeding.
b. Proceedings for recognition and enforcement of
an arbitration agreement or for vacation, setting aside,
correction or modification of an arbitral award, and any
application with a court for arbitration assistance and
supervision shall be deemed as special proceedings (Sec.
47, Alternative Dispute Resolution Act o/2004, R.A. 9285).
215
CHAPTER III
CAUSES OF ACTION, ACTIONS, AND PARTIES
c. A petition for a writ of amparo is also a special
proceeding. It is a remedy by which a party seeks" to
establish a status, a right or particular fact. It is not a
civil nor a criminal action. The summary nature of the
petition does not make the Revised Rule on Summary
Procedure applicable (De Lima v. Gatdula, G.R. No.
204528, Februar/19, 2013).
d. A verified petition for approval of the bond
filed by a parent to exercise legal guardianship over the
property of his emancipated children shall be doc,ket�d
as a· summary special proceeding (Art. 225, The �Family
Code of the Philippines).
e. A liquidation proceeding involving a bank is
a special proceeding involving the administration a�d
disposition of an insolvent's assets for the benefit of its
creditors (Consolidated Bank and Trust Corporation v.
Court of Appeals, G.R. No. 169457, October 19, 2015).
Special civil actions in the Rules of Court
The following are the special civil actions as presently
embodied in the Rules of Court:
a. Interpleader;
b. Declaratory· relief and similar remedies;
c. Review of judgments and final orders or
resolutions of the Commission on Elections and the
Commission on Audit;
d. Certiorari, prohibition, and mandamus;
e. Quo warranto;
f. Expropriation;
g. Foreclosure of real estate mortgage;
h. Partition;
Forcible entry and unlawful detainer; and
1.
J. Contempt.

216 CML PROQ.EDURE, VOLUME I
THE BAR LECTURES SERIES
Real and personal actions (Bar 2004; 2006)
1. An action is 'real' when it affects title to or possession
of real property, or an int.erest therein (Sec. 1, Rule 4, Rules of
0
Court; BPI Family Savings Bank v. Yujuico, G.R. No. 175796,
July 22, 2015). All other actions are personal actions (Sec. 2,
Rule 4, Rules of Court). Bar 19�4
Ex�mples: Acti6ns for unl�wful detainer, forcible entry,
accion publiciana, accion reinvindicatoria, quieting of title or
removal of a cloud ori a title.
2. An 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.
Not every action, however, involving a real property is a
"real action" because the realty may only be • incidental to the
subject matter of the suit. To be a "real" action, it is not enough
that the action must deal with real property. It is important
that the matter in litigation must also involve or affect any of
the following issues: "title to or possession of real property, Oor
interest therein" (Sec. 1, Rule 4, Rules of Court). Sec. 2 of Rule
4 of the 1964 Rules of Court was more specific, and referred
to real actions as those "affecting title to, or for recovery of
possession, or for partition or condemnation of, or foreclosure .
of mortgage, on real property." Hence, 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.
3. An action to recover possession of real property
plus damages (like accion publiciana and damages) is
fundamentally a real action because possession of real property
is involved. This is true even if the recovery of damages is, in
-
itself, a personal action. The aspect of damages is merely an
incidental part of the main action, i.e., recovery of possession
• the plaintiff, the action is a personal action (Adamos v. J.M.
of:real property. Hence, in determining the venue of the action,
the rule on venue of real actions shall be applied even if the
recovery of damages is included in the recovery of possession
of the realty. However, an action to recover possession of a
personal property is a personal action.
CHAPTER III 217
CAUSES OF ACTION, ACTIONS, AND PARTIES
4. An action for a declaration of the nullity of marriage
is a personal action. As such, it may be commenced and tried
where the plaintiff or any of the principal plaintiffs resides, or
where any of the principal defendants0 resides, at the election
of the plaintiff (Tamano v. Ortiz, 291 SCRA 584, 588).
5 .. An action for specific performanGe with damages
is a personal action as long aE! it does not involve a 0 claim of
or recovery of o'wn.ership of or title to real property :(Siasoco
v. Cour( of Appeal$, 303 SCRA 186,' 196, citing La Tondefia
Distillers v. Ponferrada, 264 SCRA 540).
Where a complaint is denominated as one for specific
performance but, nonetheless, prays for the issuance of a deed
of sale for a parcel of land, to enable the plaintiff to acquire
ownership thereof, its primary objective and nature is one to
recover the parcel of land itself and, thus, is deemed a real
action (Gochan v. Gochan, 372 SCRA 256, 264).
An action for specific performance to enforce a right t
repurchase lots previously sold to the buyer in accordan
with the Public Land Act is an action incapable of pecuniary
estimation (Heirs of Bautista v. Lindo, G.R. No. 208232, March
10, 2014). In an earlier case, although the end result of th
plaintiffs claim was the transfer of the subject property to his
name, the suit was still essentially for specific performance,
-
a, personal action, because it sought from the defendant the
o
execution of a deed of absolute sale based on a contract which
they had previously made. Here, the action is primarily to
enforce the contract to execute a deed of sale (Spouses Saraza
v. Francisco, G.R. No. 198718, November 27, 2013).
6. Where the allegations, as well as the prayer, in the
complaint do not claim ownership of the lots in question, or
ask for possession of the same, but, instead, merely seeks for
the execution of a deed of sale by the defendants in favor of
Tuason & Co., Inc., 25 SCRA 529, 534).
7. Where it is alleged in the complaint that the
defendant breached the contract so that the plaintiff prays
that the contract be rescinded, and that the defendant be
 CIVIL PROGEDURE, VOLUME I
218
THE BAR LECTURES SERIES
ordered ·to return possession of the hacienda to the plaintiff,
the ultimate purpose or end of the action is to recover pos­
session of real property, and not a mere breach of contract (De
Jesus v. Coloso, 1 SCRA 272, 273-274).
8. Where the action, captioned as one to annul or
rescind a sale of real property,has, as its fundamental and
prime objective, the recove. ry of real property, the idtion is
real. The venue, therefore, of the action is where the real
property subject of the action is situated. Hence, in Emergency
Loan Pawnshop, Inc. v. Court of Appeals, 353 SCRA 89, 91,
the Court sustained the Court of Appeals in dismissing a
complaint for annulment of sale of real property and damages
filed in Davao City involving a property located in Baguio
City, the place where the proper venue lies.
9. Where an award of a house and lot to the plaintiff
was unilaterally cancelled, an action that seeks to annul the
cancellation of the award over the said house and lot is a
personal action. The action does not involve title to, owne:ship,
or possession of real property. The nature of the action is one
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, 71 SCRA
290, 293). Bar 1976; 1978
10. An action to foreclose a real estate mortgage is a
real action, 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., 81
SCRA 75, 84).
. 11. An action to annul a contract ofloan, and its accessory
real estate mortgage, is a personal action. In a personal
action, the plaintiff seeks the recovery of personal property,
the enforcement of a contract or the recovery of damages. In
contrast, in a real action, the plaintiff seeks the recovery of
real property, or, as indicated in Sec. 2(a), Rule 4 of the then
Rules of Court, a real action is an action affecting title to real
property, or for the recovery of possession, or for partition or
condemnation of, or foreclosure of mortgage on, real property
CHAPTER III 219
CAUSES OF ACTION, ACTIONS, AND PARTIES
(Chua v. Total Oifice Products and Services [Topros], Inc., 471
SCRA 500, 507).
12. Although the main relief sought in the action is the
delivery of the certificate of title, said relief, in turn, depends
upon who, between the parties, has a better right. to the lot
iri question. It is not possible for the court to decide the main
relief without., passing upon the clajm df the parties with
respect to the title to and the possession of the lot in question.
The action is a real action (Espineli v. Santiago, 107 Phil. 83Q,
833).
13. Where the sale is fictitious, with absolutely no
consideration, it should be regarded as a non-existent contract.
There being no contract between the parties, there is nothing
in truth to annul by action. The action, therefore, cannot be
an action for annulment of a sale of a fishpond but one for the
recovery of a fishpond, a real action (Pascual v. Pascual, 73
Phil. 561, 562).
14. An action to annul a real estate mortgage foreclosure
sale is a real action because the action is closely intertwined
with the issue of ownership, the recovery of which is the
primary objective of the plaintiff. "The prevalent doctrine is
that the annulment or rescission of a sale ofreal property does
not operate to efface the fundamental and prime objective
and nature of the case, which is to recover said real property"
(Paglaum Management and Development· Corporation u.
Union Bank of the Philippines, 673 SCRA 506, 511-512, citin
Munoz v. Llamas, 87 Phil. 737). The case should be construed
to operate under the theory that ownership has already been
transferred. Hence, the primary purpose of the action becomes
the recovery of said ownership. However, 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.
Bar 2016
Significance of the distinction between a personal action
and a real action (Bar 2016)
1. The distinction between a real action and personal
action is important for the purpose of determining the venue
220 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
of the action. Questions involving the propriety or impropriety
s
of a particular venue are resolved by initially determining
the nature of the action, i.e., if the action is personal or real.
Knowing whether or not an action is real is also important
to know which court has jurisdiction over a complaint. As
discussed in an earlier chapter, jurisdiction over real actions
will ,involve determination:,. of the assessed value of the
property.
2; 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" (See Sec. 1,
Rule 4, Rules of Court; Italics supplied).
3. 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 plaintiffs 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' (Sec. 2, Rule 4, Rules of Court;
Italics supplied). Bar 1994
4. . If the question involves the venue of an action, the
analysis will necessarily involve the following steps:
(a) a determination whether the action is real or
personal; and
(b) an application of the rules on venue under Rule
4 of the Rules of Court.
Thus, if the action is one for a sum of money, it is a
personal action. If it is instituted by a resident of Manila
against a resident of Quezon City, the venue of the action is
either Manila or Quezon City, at the election of the plaintiff.
If the action is one for forcible entry, the action is real.
If it is instituted by a resident of Manila against a resident
CHAPTER III 221
CAUSES OF ACTION, ACTIONS, AND PARTIES
of Quezon City, the venue of the action is neither of these
places if the property subject of the action is located in Maka"ti
City, in which case, Makati City is the venue. "Forcible entry
and detainer actions shall be commenced and tried in the
municipal trial court of the municipality or city wherein the
re'al property involved, or a portion thereof, is situated" (Sec.
1, Rule 4, Rulefof Court).
5. An action for the recovery of possession of the leased
premises located in Davao City, and the payment of accrued
rentals, is a real action. The venue of the action is Davao City.
Bar 1991
6. An action to annul a sale of a land located in Baguio
City, where recovery of ownership is essentially the material
issue in the case, must be filed in Baguio City. The action is a
real action, and must be filed in the place where the property i
situated, regardless of the residence of the parties (Emergency
Loan Pawnshop, Inc. v. Court of Appeals, 35 3 SCRA 89, 93).
7. Where an award of a house and lot to the plaintiff
was unilaterally cancelled, an action that seeks to annul the
cancellation of the award over the said house and lot is a
personal action. The action does not involve title to, ownership
or possession of real property. The nature of the action is
one to compel the recognition of. the validity of the previous
award by seeking a declaration that the cancellation is null
and void. The venue is the residence of the plaintiff or that
of the defendant, at the option of the plaintiff (Hernandez v.
Development Bank of the Philippines, 71 SCRA 290, 293). Bar
1976;1978
8. 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 (BPI Family Savings
Bank v. Yujuico, G.R. No. 17579 6, July 22, 2015). Hence, the
venue is the residence of the plaintiff or that of the defeD;dant,
at the option of the plaintiff, not the location of the property
mortgaged.
222 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
In personam, in rem and quasi in rem actions (Bar 1994;
2009; 2014)
l. "An · action in personam is a proceeding to enforce
personal rights and obligations brought against the person
and is based on the jurisdiction of the person x x · x. Its
Jiurpose is to compos�f through the judgmeµt of the court,
some responsibility or liability directly upon the person of the
defendant x x x."
The following are some of the examples of actions in
personam: Actions for collection of a sum of money and
damages; action for unlawful detainer or forcible entry; action
for specific performance; action to enforce a foreign judgment
in a complaint for breach of contract" (Frias v. Alcayde, G.R.
No. 194262, February 28, 2018). Frias v. Alcayde further
instructs: "In actions in personam, the judgment is for or
against a person directly. Jurisdiction over the parties is
required in actions in personam,because they seek to impose
personal responsibility or liability upon a perso."
2. Actions in rem are actions against the thing itself.
They are binding upon the whole world. The phrase, "against
the thing," to describe in rem actions is a metaphor. It is not
the "thing" that is the party to an action in rem; only legal or
natural persons may be parties even in in rem actions.
The following are examples of actions in rem: "x x x
petitions x x x which concern the status of a person like a
petition for adoption, correction of entries in the birth certifi­
cate or annulment of marriage, nullity of marriage, petition to
establish illegitimate filiation; registration of land under the
torrens system;.and forfeiture proceedings" (Frias v. Alcayde,
G.R. No. 194262,February 28,2018). A land registration case
or probate of a will is also an action in rem. Bar 1994
Traditional jurisprudence referred to an action in rem
as one brought against the whole world (Romualdez-Licaros
v. Licaros, 401 SCRA 762, 770). An example of this action
is a probate of a will (Munoz v. Yabut, Jr., 650 SCRA 344,
367; In Re Estate of Johnson, 39 Phil. 156,162). Thus, it has
been held that the probate of a will being a proceeding in rem,
CHAPTER III 223
CAUSES OF ACTION, ACTIONS, AND PARTIES
with the corresponding publication of the petition, the court's
jurisdiction extends to all persons interested in said will or in
the settlement of the estate of the decedent (Alaban v. Court
of Appeals,470 SCRA 697,706).
Another example is a land registration proceeding. Hence,
by vir�ue of compliance with, the publication requiremerit, all
claimants )ind occupants of the subject property are deEi'med
to be notified of the existence of a cadastral case involving
the property (First Gas Power Corporation v. Republic,· G.R.
No. 169461, September 2, 2013). Since a land registration
proceeding is an action in rem, the 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. Court of Appeals,
212 SCRA 623, 628; Ting v. Heirs of Diego Lirio, 518 SCRA
334,338).
A petition for the correction of an entry in the birth
certificate, like date of birth, is an action in rem, an action
against a thing and not against a person. The proceeding
is validated essentially by publication of the proceeding to
give notice to the whole world and to those who might be
minded to make objections of any sort to the right sought
to be established. It is this publication which brings in· the
whole world as a party. The decision of the court, after having
attained finality, binds not only the parties, but the whole
world. Everyone is now legally bound to acknowledge and
give effect to the judgment. Thus, when the order to correct
an entry _in the birth certificate is ordered under a final
judgment, a government agency is bound to give effect to the
said judgment (Civil Service Commission v. Magoyag, G.R.
No. 197792,December 9,2015).
One case of note, likewise, held: "x x x [An] action in
personam is lodged against a person based on personal
liability; an action in rem is directed against the thing itself
instead of the person; while an action quasi in rem names a
person as defendant, but its object is to subject that person's
224 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
interest in a property to a corresponding lien or obligation
(Lucas v. Lucas, G.R. No. 190710, June 6, 2011).
Lucas continued:
"In an action in personam, jurisdiction over the
person of the defendant is necessa. ry for the court to
validly tr:y_ and'.:decide the case. In �:'prod�eding in rem or
quasi in rem, jurisdiction over the person of the defendant
is not a prerequisite to confer jurisdiction on the court
provided that the latter has jurisdiction over the res'.
Jurisdiction over the res is acquired either (a) by the
seizure of the property under legal process, whereby it is
brought into actual custody of the law, or (b) as a result of
the institution of legal proceedings, in which the power of
the court is recognized and made effective.
"The x x x petition to establish illegitimate filiation
is an action in rem. By the simple filing of the petition
to establish illegitimate filiation before the RTC, which
undoubtedly had jurisdiction over the subject matter of
the petition, the latter thereby acquired jurisdiction over
the case. An in rem proceeding is validated essentially
through publication. Publication is notice to the whole
world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection
of any sort to the right sought to be established. Through
publication, all interested parties are deemed notified of
the petition."
3. "A proceeding quasi in rem is one brought against
persons seeking to subject the property of such persons in the
discharge of x x x claims x x x. In an action quasi in rem, an
individual is named as a defendant and the purpose of the
proceedings is to subject his interest therein to the obligation
or loan burdening the property x x x. Unlike suits in rem, a
quasi in rem judgment is conclusive only between the parties.
The following are some of the examples of actions quasi in rem:
suits to quiet title, actions for foreclosure; and attachment
proceedings. In an action quasi in rem, an individual is named
as a defendant" (Frias u. Alcayde, G.R. No. 194262, February
28, 2018).
CHAPTER III 225
CAUSES OF ACTION, ACTIONS, AND PARTIES
Additional examples of actions quasi in rem are: action
for partition and action for accounting. 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. Court of Appeals, 252 SCRA 92, 101-102). .
.
Iri _another case, the Court similarly held that attachment
and foi�closure proceedings ire both actions quas(:.in rem.
As such, jurisdiction over the person of the nonsresident
defendant is not essential. Service of 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 b
so minded (Biaco v. Philippine Countryside Rural Bank, 515
SCRA 106, 118).
An action for annulment of certificate of title is quasi
in rem. It is not an action "against a person on the basis of
his personal liability," but an action that subjects a person's
interest over a property to a burden. The action for annulment
of a certificate of title thre.atens petitioner's interest in the
property (De Pedro v. Romasan Development Corporation,
. G.R. No. 194751, November 26, 2014).
4. An in personam or an in rem action is a classification
of actions according to the object of the action. A personal and
rel;).l action is a classification according to foundation. It is in
-
rem when directed against the whole world, and in per;onam
-
when directed against a particular person. Bar 1994 Hence,
an action in personam is not necessarily a personal action.
Nor is a real action, necessarily an action in rem. For instance,
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.
 CIVILP ROCEDURE,VOLUMEI
226
THE BAR LECTURES SERIES
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. Court of Appeals, 315 SCRA 600, 606).
"The rule is that: (1) a judgment in rem is binding upon
the :<?{hol� world, such as a ju�gmept in a land registration
case or probate of a will; and (2) ajt.tdgment in personam is
binding upon the parties and their successors-in-interest
but not upon strangers. A judgment directing a party to
deliver possession of a property to another is in personam;
it is binding only against the parties and their successors­
in-interest by title subsequent to the commencement of
the action. An action for declaration of nullity of title and
recovery of ownership of real property, or reconveyance, 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. Any judgment therein is binding only
upon the parties properly impleaded" (Munoz v. Yabut,
Jr., 650 SCRA 344, 367).
5. An action for the declaration of nullity of a marriage
is a personal action (Tamano v. Ortiz, 291 SCRA 584, 588;
Romualdez-Licaros v. Licaros, 401 SCRA 762, 765) because
it is not founded on real estate. It is, at the same time, an 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. On the other hand,
an action for damages is both a personal action and an action
in personam.
6. An action for specific performance is an action in
personam (Jose v. Boyan, 414 SCRA 216, 225). It is not an
action in rem (Gomez v. C�urt of Appeals, 425 SCRA 98, 105).
Bar 1997; 2003
7. Cases involving an auction sale of land for the
collection of delinquent taxes are actions in personam. Mere
publication of the notice of delinquency does not suffice. Notice
by publication, although sufficient in proceedings in rem, does
not satisfy the requirements of proceedings in personam.
Because it is in personam, it is still necessary to send the
CHAPTER III 227
CAUSES OF ACTION,ACTIONS, AND PARTIES
notice of tax delinquency directly to the taxpayer in order to
protect his interests (Talusan v. Tayag, 356 SCRA 263, 276). -
8. An action for reconveyance is an action in personam
available to a person whose property has been wrongfully
registered under the Torrens system in another's name
v.
(Munoz Yabut, Jr., 650 SCRA 344, 365-366, ci#ng Heirs of
··Eug�nio Lopez, Sr. v. Enriquez, 449 SCRA 17fJ). :Qar 2014
•:· ,:. L,. " · ·i;.,._. -",:,
· 9. An action for injunction is a persorial action, as well
as an action in persoriam, not an action in -rem or quasi in
rem (Kawasaki Port Service Corporation v. Amores, 199 SCRA
230, 237). Munoz v. Yabut, Jr., 650 SCRA 344, also ruled that
a suit for injunction partakes of an action in personam. Bar
1997
10. The proceedings under the Financial Rehabilitation
Rules of Procedure of 2013 are proceedings in rem as provided
for under Sec. 4 thereof. Examples of the proceedings under
the Financial Rehabilitation Rules of Procedure are petitions
for rehabilitation of corporations, partnerships and sol
proprietorships as well as proceedings in suspension of
payment.
11. A petition for annulment of a juq.gment is in
personam. The court's decision in this petition will not be
enforceable against the whole world. Any judgment therein
will eventually pind only the parties properly impleaded (See
Frias v. Alcayde, G.R. No. 194262, February 28, 2018).
Significance of distinction between actions in rem, in
personam and quasi in rem
1. The distinction is important to determine whether
or not jurisdiction over the person of the defendant is required
empioyed.
o
and consequently to determine the type of summons to be
Gomez v. Court of Appeals, 425 SCRA 98, 103, is clear on
the matter:
"To resolve whether there was valid service of
summons on respondents, the nature of the action filed
against them must first be determined. As the Court

228 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
explained x x x it will be helpful to determine first whether
the action is in personam, in rem, or quasi in rem because
the rules on service of summons under Rule 14 of the
Rules of Court of the Philippines apply according to the
nature of the action."
Against a resident defendant in an action in pers_onam,
this ,.jurtsdiction is acquired by service in person Jqn the
defendant (Sec. 6, Rule 14, Rules of Court) or,' in �ase he
cannot be served in person within a reasonable time, by
substituted service of summons (Sec. 7, Rule 14, Rules of
Court). Without a valid service of the summons, the court
cannot obtain jurisdiction over the person of the defendant,
unless he voluntarily appears in the action. This voluntary
appearance is equivalent to service of summons (Sec. 20, Rule
14, Rules of Court).
The case of Afdal v. Carlos, 636 SCRA 389, 396, is
instructive:
"x x x Jurisdiction over the defendant is acquired
either upon a valid service of summons or the defendant's
voluntary appearance in court. If the defendant does not
voluntarily appear in court, jurisdiction can be acquired
by personal or substituted service of summons as laid out
under Sections 6 and 7 of Rule 14 of the Rules of Court."
2. "In an action in personam 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 over his person. This method,
is possible, if such defendant is physically present in the
country. If he is not found therein, the court cannot acquire
jurisdiction over his person and, therefore, cannot validly try
the case against him" (Asiavest Limited v. Court of Appeals,
296 SCRA 539, 554).
Following the ruling in Asiavest, because an action for
specific performance is in personam, service of summons upon
him in person, while he is within the territory, is essential
for the court to acquire jurisdiction over him. In an action for
specific performance against a non-resident who is not found
CHAPTER III 229
CAUSES OF ACTION, ACTIONS, AND PARTIES
in the Philippines, summons by publication will not enable
the court to acquire jurisdiction over him (Gomez v. Court of
Appeals, 425 SCRA 98, 106).
3. The Supreme Court sums up the basic rules on the
matter, in the following words, thus:
"The questiqn of whether th(':) triill court has
jurisdiction depends on the nature ·of the action, i.e.,
whether the action is in personam, in rem, or quasi in
rem. The rules on service of summons under Rule 14 of
the Rules of Court, 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. In a proceeding in rem or
quasi in rem. jurisdiction over the person of the defendant
is not a prerequisite to confer jurisdiction on the court
provided that the court acquires jurisdiction over the
res. Jurisdiction over the res is acquir:ed 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 �ourt with
jurisdiction but merely for satisfying the due process
requirements.
"A resident defendant who does not voluntarily
appear in court, must be personally served with summons
as provided under Sec. 6, Rule 14 of the Rules of Court.
If she cannot be personally served with summons within
a reasonable time, substituted service may be effected
(1) by leaving copies of the summons at the defendant's

230 CML P ROCEDURE,VOLUMEI
THE BAR LECT URES SERIES
residence with some person of suitable age and discretion
then residing therein, or (2) by leaving the copies at
defendant's office or regular place of business with some
competent person in charge thereof in accordance with
Sec. 7, Rule 14 of the Rules of Court" (Biaco v. Philippine
Countryside Rural Bank, 515 SCRA 106; underscoring
ours).
; :;· ; �i!.
Requirement of notice or summons
A proceeding which is rem or quasi in rem, as earlier
mentioned does not, as a rule require jurisdiction over the
person of the defendant, and this rule becomes very apparent
when the defendant is a non-resident and is not found in the
Philippines. For instance, as earlier discussed, his property
found in the Philippines may be attached and, by so doing, the
court acquires jurisdiction over the property or res, even if it
has no personal jurisdiction over the defendant. A Philippine
court, thus, will have the jurisdiction to hear and decide the
case because it has jurisdiction over the res by virtue of the
attachment.
This should not be taken to mean, however, that notice
or summons to the parties interested in the action is not
necessary. Due process requires that those with interests in
the thing in litigation be notified and given an opportunity
to defend those interests. Their rights to be heard cannot be
denied. This means that jurisdiction over the res is not suffi­
cient for a valid judgment. Such judgment also requires notice
or service of summons to all interested parties to satisfy the due
process requirement of the fundamental law. Hence, notice to
those interested in the action is necessary whatever the action
is, in rem, quasi in rem or in personam. Only the manner by
which the notice is made may differ, depending on the nature
of the action, but such notice or summons need be sent. Hence,
in in rem or quasi in rem actions, where the defendant is a
non-resident and is not found in the Philippines, this notice
is effected through extraterritorial service of summons under
-
Sec. 15, Rule 14 of the Rules of Court. In actions against
residents of the Philippines, the rule mandates the use of
service in person on the defendant in Sec. 6, Rule 14, Rules of
CHAPTER III 231
CAUSES OF ACTION, ACTIONS, AND PARTIES
Court, and in default thereof, substituted service of summons
under Sec. 7, Rule 14 of the Rules of Court. For instance, in
a probate of a will, a proceeding in rem, while no person is
sought to be held liable by the proceeding and the rule does
not mention the term, 'summon,' the rule requires that the
heirs, devisees, legatees and executors be notified by mail or
personally. If the testator asks for the allowance of his .own
will, notice �ha:1fbe sent only to hisco�pulsory heirs (See Sec.
4, Rule 76, Rules of Court).
One pronouncement even declares:
"Hence, regardless of the nature of the action, proper
service of summons is imperative. A decision rendered
without proper service of summons suffers a defect in
•jurisdiction. Respondent's institution of a proceeding for
annulment of petitioner's certificate of title is sufficient
to vest the court with jurisdiction over the res, but it
is not sufficient for the court to proceed with the case
with authority and competence" (De Pedro v. Romasan
Development Corporation, G.R. No. 194751, November
26, 2014).
Example of when an action in rem or quasi in rem is treated
as in personam
An action in rem or quasi in rem is treated as an action in
persona"m if the defendant presents himself in the action. This
has been clarified by jurisprudence, thus:
"If the defendant appears, the cause becomes mainly
a suit in personam, with the added incident, that the
property attached remains liable, under the control of the
court, to answer to any demand which may be established
against the defendant by the final judgment of the court.
But, if there is no appearance of the defendant, and
no service of process on him, the case becomes, in its
essential nature, a proceeding in rem, the only effect of
which is to subject the property attached to the payment
of the defendant which the court may find to be due to the
plaintiff' (See Banco-Espanol Filipino v. Palanca, 37 Phil.
921, 929 citing Cooper v. Reynolds, 10 Wall., 308).
 232 CML PROCEDURE,VOLUME I
THE BAR LECTURES SERIES
When summons by publication may be made in an action in
personam
Summons by publication, as a general rule, will not
enable the court to acquire jurisdiction over the person of
the defondant (Pantaleon v. Asuncion, 105 Phil. 761, . 765;
See also Citizens Surety ) ,& Insurance Co., Inc� v. Melencio­
Herrera, 38 SCRA 369/ Magdalena Estate v. Nieto, 125 SCRA
758; Consolidated Plywood v. Breva, 166 SCRA 589). This
jurisprudential rule is, however, subject to the exceptions laid
down under the amended rules which took effect on July 1,
1997.
(a) In Sec. 14 of Rule 14, if the identity of the
defendant is unknown or whose whereabouts are
unknown, service may, with leave of court, be effected
upon him by publication in a newspaper of general
circulation. Note the words "in any action" in Sec. 14 of
Rule 14 (Sec. 14, Rule 14, Rules of Court; Santos v. PNOC
Exploration Corporation, 566 SCRA 272, 278).
(b) In Sec. 16 of Rule 14, if the resident defendant
is temporarily out of the country, he may be served by
publication with leave of court.
While the phrase "summons by publication" does not
appear in Sec. 16, the way it expressly appears in Sec. 14,
. the rule makes reference to Sec. 15 of Rule 14 which allows
summons by publication. Note also the words "any action" in
Sec. 16 of Rule 14 making the rule applicable even to actions
in personam (Sec. 16, Rule 14 in relation to Sec. 15, Rule 14,
Rules of Court; Suggested reading: Asiavest Limited v. Court
of Appeals, 296 SCRA 539).
III. PARTIES (Rule 3)
Parties to a civil action
l. It is inconceivable to have a civil action without
parties to the same. The rule gives two main categories of
parties to a civil action namely, the plaintiff and the defendant
(Sec. 1, Rule 3, Rules of Court).
-
-
CHAPTER III 233
CAUSES OF ACTION, ACTIONS, AND PARTIES
2. The plaintiff is the claiming party and is the
one who files the complaint. The term, however, does riot
exclusively apply to the original plaintiff. It may also apply to
a defendant who files a counterclaim, a cross-claim or a third­
party complaint. The rule (Sec. 1, Rule 3) defines the term
'plaintiff,' as the claiming party, the counter-claimant, the·
cross-claiman,t or the third (fourth; etc.)-party plaintiff (Sec.
1, Rule 3, Rules of Court).
3. The defendant does not only refer to the original
defending party. If a counterclaim is filed against the original
plaintiff, he becomes a defendant and the original defendant,
a plaintiffin the counterclaim. Under the Rules (Sec. 1, Rule 3,
Rules of Court), the term 'defendant' refers also to a defendant
in a counterclaim, the cross-defendant, or the third (fourth,
etc.)-party defendant.
Who may be parties
The following may be parties to a civil action:
(a) natural persons,
(b) juridical persons, and
(c) entities authorized by law (Sec. 1, Rule 3, Rules
of Court; Association of Flood Victims v. Commission on
Elections, G.R. No. 203775, August 5, 2014).
Juridical persons as parties
l. The juridical persons who may be parties to a civil
action are those enumerated in Art. 44 of the Civil Code of the
Philippines, namely:
(a) The State and its political subdivisions;
(b) Other corporations, institutions and entities for
public interest or purpose, created by law; and
(c) Corporations, partnerships and associations
for private interest or purpose to which the law grants a
juridical personality, separate and distinct from that of
each shareholder, partner or member.

234 CIVIL PROCEDURE, VOLUME I
THE BAR tECTURES SERIES
Where the complaint is commenced by a plaintiff not
authorized to be a party to a case, because it is not a natural
person or a juridical person or an entity authorized by law, it
becomes dismissible on the ground of lack of legal capacity to
sue (Alliance of Quezon City Homeowners' Association,. Inc. v.
The Quezon City Government, G.R. No. 230651, September 18,
2018).
. . .
2. Juridfoal persons have personalities separate and.
distinct from those of the natural persons that compose them.
Thus, a suit against a stoekholder of a corporation is not a suit
against the latter. A judgment in a suit for recovery of ill-gotten
wealth against a corporate shareholder, is not a judgment
against the corporation and the enforcement of the judgment
against the latter is a violation of its right to due process and
a disregard of its distinct and separate personality (Philippine
Coconut Producers Federation, Inc. v. Republic, G.R. Nos.
177857-58, G.R. No. 178193, October 5, 2016). The converse is
also true. A judgment rendered against the corporation is not
a judgment rendered against a corporate stockholder.
When the corporate offices have been illegally searched,
the right to contest the transgression does not belong to any
corporate officer. It belongs to the corporation alone which has
a personality of its own separate and distinct from that of an
officer or a stockholder. The objection to an unlawful search
and seizure is purely per.sonal and cannot be availed of by
third persons (See Stonehill v. Diokno, 20 SCRA 383).
One early famous case, aptly demonstrates the separate
personality of a corporation particularly well. Here, a collection
suit was filed by a bank against a corporation and its president.
Some stockholders of the corporation filed a motion for leave
to intervene in the case, alleging that the corporate president
was not authorized to enter into the loan agreement with the
bank and that there was a collusion between the bank and
the corporation. The stockholders argued that their right to
intervene is based on their right to protect their interests as
stockholders.
The Court denied the intervention and held: "[T]he interest
which entitles a person to intervene in a suit, between other
CHAPTER III 235
CAUSES OF ACTION, ACTIONS, AND PARTIES
parties, must be in the matter in litigation and of such direct
and immediate character that the intervenor will either gain
or lose by direct legal operation and effect of the judgment."
The interest of the stockholders, ruled the Court, is "indirect,
contingent, remote, conjectural, consequential and collateral.
At the very least, their interest is purely inchoate, or in sheer
expecta:q.cy of a right in the management of the, corporation
x x·-�." The Court, in the ·sam� case went on to·..expiain that
while a share of stock represents a proportionate or aliquot
interest in the corporation; it does not vest the owner thereof
with any legal right or title to any of the corporate property.
This is because shareholders are not the owners of such
prope'rty which is ·�wned by the corporation as a distinct legal
person (Sa;;; v. Court of Appeals, 195 SCRA 740, 7 45, citing
Magsaysay-Labrador v. Court of Appeals, 180 SCRA 266).
However, even if the cause of action belongs to the
corporation, if the board refuses to sue despite demand by th
stockholders to sue and protect or vindicate corporate rights,
a stockholder is allowed by law to file a derivative suit in th
corporate name. In such a suit, the real party in interest is
actually the corporation and the stockholder filing the action
is a mere nominal party (Asset Privatization Trust v. Court of
Appeals, 300 SCRA 579, 614).
Entities authorized by law to be parties
One need not be a natural or juridical person to be a party
to a civil action. Sec. 1 of Rule 3 adds a third possible party to
a civil action aside from natural persons and juridical persons.
Said provision recognizes "entities authorized by law." As long
as an entity is authorized by law to be a party, such entity
may sue or be sued or both. Consider the following examples:
(a) Under Sec. 21 of the Corporation Code of the
Philippines, a corporation by estoppel is precluded from
denying its existence and the members thereof can be
sued and be held liable as general partners.
(b) A contract of partnership having a capital of
three thousand pesos or more but which fails to comply
 CIVIL PROCEDURE, VOLUME I
236
THE BAR LECTURES SERIES
with the registration requirements is, nevertheless, liable
as a partnership to third persons (Art. 1772 in relation to
Art. 1768 of the Civil Code of the Philippines).
(c) The estate of a deceased person is a juridical
entity that has a personality of its own. (Nazareno v.
Court of Appeals, 343 SCRA 637, 653, citing Limjoco v.
Intestate E1tate of Fragante, 80 Rhil. 776). Since it has J'
personality of its own, it may be a party to an action.
(d) A legitimate labor organization may sue arid be
sued in its registered name (Art. 242[e], Labor Code of the
Philippines).
(e) The Roman Catholic Church may be a party
and as to its properties, the archbishop or diocese, to
which they belong, may be a party (Barlin v. Ramirez, 7
Phil. 41; Versoza v. Fernandez, 49 Phil. 627, 633-634).
(f) A dissolved corporation may prosecute and
defend suits by or against it provided· that the suits (i)
occur within three years after its dissolution, and (ii) the
suits are in connection with the settlement and closure of
its affairs (Sec: 122, Corporation Code of the Philippines).
(g) "[A] . partnership for the practice of law,
constituted in accordance with the Civil Code of the
Philippines acquires a juridical personality by operation
of law. Having a juridical personality distinct and
separate from its partners, such partnership is the real­
party-in-interest in connection with a contract entered
into in its name and by a person authorized to act in its
behalf x x x [O]ur law on partnership does not exclude
- partnerships for -the practice of law from its coverage
x x x Under Article 1771, a partnership may be constituted
in any form xx x" (Saluda v. Philippine National Bank,
G.R. No. 193138, August 20, 2018).
!Entity without a juridical personality as a defendant
1. An example of an entity that is neither a natural nor
juridical person but is allowed by the Rules of Court to be a
CHAPTER III 237
CAUSES OF ACTION, ACTIONS, AND PARTIES
party to an action, although as a defendant, is the one treated
in Sec. 15 of Rule 3 of the Rules of Court.
2. Under Sec. 15, "when two or more persons not
organized as an entity with juridical personality enter into
a transaction, they may be sued under the name by which
they are generally or c01:nmonly known." Und�r the same
pr6'vision, the respoi;lsivii"pleading of the '�ntity sued must
disclose the names and addresses of its members since they
are the persons ultimately liable to the plaintiff.··
Thus, if A, B, C, D, and E, without incorporating
themselves or without registering as a partnership, enter
into transactions using the common name, "Sea Quest Corp.,"
they may be sued as "Sea Quest Corp." When the defendant
"corporation" answers, the names of A,. B., C, D, and E and
their addresses must be revealed. Note, however, that the
authority to be a party under this section is confined only to
being a defendant and not as a plaintiff This is evident from
the words, they may be sued.
Effect when a party impleaded is not authorized to be a
party
1. Where the plaintiff is not a natural or a juridical
person or an entity authorized by law, a motion to dismis
· �ay b� filed on the ground that "the plaintiff has no legal
capacity to sue" (Sec. l[d}, Rule 16, Rules of Court). Where
the plaintiff has · a legal capacity to sue but is not the person
who should sue because he is not the real party in interest,
the complaint is dismissible on the ground that the complaint
"states no caus� of action."
2. Where it is the defendant who is not a natural or a
juridical person or an entity authorized by law, the complaint
may be dismissed on the ground that the "pleading asserting
the claim states no cause of action" or "failure to state a
cause of action" (Sec. l[g], Rule 16, Rules of Court), because a
complaint cannot possibly state a cause of action against one
who cannot be a party to a civil action.
238 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Averment of capacity to sue or be sued
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 (Sec. 4, Rule 8,
Rules of Court).
Minor or incompetent as a party
A mirior or an incompetent may sue or be suea. He can
be a party, not through, but with the assistance of his father,
mother, guardian, or if he has none, a guardian ad litem (Sec.
5, Rule 3, Rules of Court).
Real party in interest (Bar 1988; 1989; 2015)
1. "A real party in interest is the party who stands to
be benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit" (Se_c. 2, Rule 3, Rules
of Court; Hontiveros-Baraquel v. Toll Regulatory Board, C.R.
No. 181293, February 23, 2015; Spouses Laus v. Optimum
Security Services, Inc., C.R. No. 208343, February 3, 2016;
Virata v. Ng Wee, C.R. No. 221135, July 6, 2017).
To be a real party in interest, the interest must be 'real,'
which is a present substantial intere�t as distinguished from
a mere expectancy or a future, contingent subordinate or
consequential interest (Rayo v. Metrobank, 539 SCRA 571,
579; Fortich v. Corona, 289 SCRA 624, 649). It is an interest
that is material and direct, as distinguished from a mere
incidental interest (Mayor Rhustom Dagadag v. Michael C.
Tongnawa, 450 SCRA 437, 443-444).
2. 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" (Sec. 2, Rule 3, Rules of Court;
Hacbang v. Alo, C.R. No. 191031, October 5, 2015; see also
Ang v. Pacunio, C.R. No. 208928, July 8, 2015). 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
CHAPTER III 239
CAUSES OF ACTION, ACTIONS, AND PARTIES
complaint states no cause of action (Spouses Laus v. Optimum
Security Services, Inc., supra). Like the need for a cause of
action in ordinary civil actions, this requirement is not a mere
technical matter because it goes into the very substance of the
suit. If either of the parties is not the real party in interest,
the court cannot grant the· relief prayed for because that party
has no legal right or,,.duty with respect.to th.y other. Litigation
then becomes a mere·academic exercise that eventually settles
nothing and thus, a waste of time (Hacbang v. Alo, C.R. No.
191031, October·5, 2015).
3. The rule on real party in interest ensures that the
party with the legal right to sue brings the action and to bring
to court a party rightfully interested in the litigation so that
only real controversies shall be presented to the court (For
further readings, see Philippine Numismatic and Antiquarian
Society v. Aquino, C.R. No. 206617, January 30, 2017).
Determining the real party in interest
1. The determination of who the real party in interestL
is, requires going back to the elements of a cause of action. A
cause of action involves the existence of a right and a violation
of such right. Evidently, the owner of the right violated stand
to be the real party in interest as plaintiff and the person
. responsible for the violation i� the real party in.interest a
defendant. Thus, in a suit for violation of a contract, th
parties in interest would be those covered by the operation
of the doctrine of relativity of contracts under Art. 1311 of
the Civil Code of the Philippines, namely, the parties, their
assignees and heirs.
"The basic principle of relativity of contracts is that
contracts can only bind the parties who entered into it, and
cannot favor or prejudice a third person x x x. Hence, one who
is not a party to a contract, and for whose benefit it was not
expressly made, cannot maintain an action on it" (Vda. De
Rojales v. Dime, G.R. No. 194548, February 10, 2016). Bar
2011 For example, in a suit for annulment of a contract, the
real parties in interest would be those who are principally
240 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
or subsidiarily bound by the contract (Art. 1397, Civil Code
of the Philippines). A third party, who has not taken part
in a compromise agreement, has no right to ask for the
enforcement of the agreement (Westmont Bank v. Shugo Noda
& Co. Ltd., 307 SCRA 381, 391). Neither can such person seek
the amendment or modification of the same (Periquet, Jr. v.
Intermediate
·,,' •
Appellate Court,, 238 SCRA 697, 713): •
·• :
•
J,� .' : I
2. . While, ordinarily, one who is not privy to a contract
may not bring an action to enforce it, there are recognized
exceptions to this rule. For example, if a contract contains
a stipulation pour autrui (a stipulation expressly conferring
benefits to a third person), such person, in whose benefit the
stipulation was conferred by the parties, may demand the
fulfillment of the contract, and even sue under such contract,
provided he accepted and communicated his acceptance of the
beneficial stipulation prior to its revocation (Art. 1311, Civil
Code of the Philippines).
3. A mere agent, who is not an assignee·of the principal,
cannot bring suit under a deed of sale entered into in behalf of
his principal because it is the principal, not the agent, who is
the real party in interest (Uy v. Court of Appeals, 314 SCRA
69, 77). If a complaint is filed by an agent for and in behalf of
the principal, the agent is not the real party in interest (Africa
v. InsuraTJ,ce Savings and Inyestment Agency, Inc.[ISIA], G.R.
No. 206540, April 20, 2015).
Where an agent acts in his own name and for the benefit
of an undisclosed principal, the agent may sue or be sued in
his own name, without joining the principal, except when the
contract involves things belonging to the principal (Sec. 3,
Rule 3, Rules of Court).
"The power to collect and receive payments on behalf
of the principal is an ordinary act of administration covered
by the general powers of an agent. On the other hand, the
filing of suits is an act of strict dominion. Under Article 1878
(15) of the Civil Code, a duly appointed agent has no power to
exercise any act of strict dominion on behalf of the principal
unless authorized by a special power of attorney. An agent's
CHAPTER III 241
CAUSES OF ACTION, ACTIONS, AND PARTIES
authority to file suit cannot be inferred from his authority to
collect or receive payments; the grant of special powers cannot
be presumed from the grant of general powers. Moreover, the
authority to exercise special powers must be duly established
by evidence, even though it need not be in writing" (V-Gent,
Inc. v. Morning Star Travel and Tours, G.R. No. 186305, July
22, 2015).
4. Shotild a lawful possessor be disturbed in his
possession, it is the possessor, not necessarily the owner of the
property, who can bring the action to recover the possession.
The argument that the complaint states no cause of action
because the suit was filed by a mere possessor and not by the
owner is not correct (Philippine Trust Company v. Court of
Appeals, 320 SCRA 719, 729).
In an action for forcible entry, the possessor/lessee is the
real party in interest as plaintiff and not the owner/lessor.
The issue in an action for forcible entry is mere possession.
But in an action to recover damages for injury caused by th
deforciant on the property, the owner/lessor is the real party
in interest as plaintiff.
5. In an action for ejectment, any one of the co-owners
may bring the action (Art. 487, Civil Code of the Philippines).
6. Under Art. 1768 of the Civil Code of the Philippines,
a · partnership has· a juridical personality separate and
distinct from that of each of the partners. Hence, if the
contract was entered into by the partnership in its name, it
is the partnership, not its officers or agents, which should be
impleaded in any litigation involving property registered in
its name. A violation of this rule will result in dismissal of the
complaint"(Aguila v. Court ofAppeals, 319 SCRA 246, 254) for
failure to state a cause of action.
7. The real party in interest in a criminal prosecution
is the "People of the Philippines." The interest of the private
offended party is only in the civil aspect of the case (For further
readings, see Ablud Metal Recycling Corporation v. Ang, G.R.
No. 182157, August 17, 2015; Laude v. Ginez-Jabalde, G.R.
No. 217456, November 24, 2015).
242 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
8. The condominium unit owners and residents of a
condominium building, affected by an oil leak in the pipelines
of the defendant, which made the place inhabitable for them,
are real parties in interest (West Tower Condominium on
behalf of the Residents of West Tower Condominium and in
representation of Barangay Bangkal, and others, including
TrJ:,in?Ts and generatiqr1,s ,yet unborn v. Fir. st ;Philippine
Industrial Condominium, (/R. No. 194239, Junei6, 2015).
9. Where the cause of action is based on a breach of
contract of carriage, the liability of the common �arrier is direct
and primary since the contract is between the carrier and the
passenger. The driver of the carrier cannot be made liable since
he is not a party to the contract of carriage. It is erroneous
to hold the carrier and the driver jointly and severally liable
(Sanico v. Colipano, G.R. No. 209969, September 27, 2017).
Doctrine of locus standi
1. 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 (Osmeiia III v. Abaya, G.R.
No. 211737, January 13, 2016; Ocampo v. Enriquez, G.R.
No. 225973, November 8, 2016; For further readings, see also
Padilla v. Congress of the Philippines, G.R. No. 231671, July
25, 2017; Ocampo v. Enriquez, G.R. No. 225973, August 8,
2017).
For example, when a quo warranto proceeding is brought
by a private person to question the constitutionality of the
appointment made by the President of the Philippines and to
oust tfie holder from its enjoyment, the petitioner must show
a clear right to the contested office. The right to the office·
must be clear. A mere preferential right to be appointed does
not lend a legal ground to proceed with the action. Hence, a
mere nominee to a position in the judiciary cannot claim a
clear legal right to the position. Being included in the list of
n?minees, submitted by the Judicial and Bar Council, only
gives the petitioner a possibility, not certainty, of being
appointed to the position, considering the discretionary power
CHAPTER III 243
CAUSES OF ACTION, ACTIONS, AND PARTIES
of the appointing power of the President of the Philippines.
The petitioner, hence, has no legal standing to file the petition.
The same principle as above applies to a quo warranto
petition filed by the Integrated Bar of the Philippines (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 �laiming to be entitled to the positions in:que�tion
(See Aguinaldo v. Aquino III, G.R. No. 224302, November 29,
2016)..
2. As a rule, locus standi requires a personal stake in
the outcome of the controversy. Hence, a party will be allowed
to litigate only when he can demonstrate that (a) he has
personally suffered some actual or threatened injury becaus
of the allegedly illegal conduct of the government; (b) th
injury is fairly traceable to the challenged action; and (c) th
injury is likely to be redressed by the remedy being sought.
Otherwise he/she would not be allowed to litigate (See Umali
v. Judicial and Bar Council, G.R. No. 228628, July 25, 2017;
3. The rule on locus standi is a mere procedur 1
:
technicality, hence, the Court, in a catena of cases, has waived
or relaxed the same rule, allowing persons who may not hav
been personally injured by the operation of a law or any
governmental act. The Court, therefore, has laid out the bar
minimum norm to extend the standing to s:ue to the so-called.
"non-traditional suitors," thus:
"(a) For taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure is
unconstitutional;
(b) For voters, there must be a showing 9f obvious
interest in the validity of the law in question;
(c) For concerned citizens, there must be a showing
that the issues raised are of transcendental importanc
which must be settled early; and
(d) For legislators, there must be a claim-that th
official action complained ofinfringes on their prerogative
as legislators" (Funa v. Agra, 691 SCRA 196, 208-209,

244 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
February 19, 2013; See also Hontiveros-Baraquel v. Toll
Regulatory Board, G.R. No. 181293, February 23, 2015;
Republic v. Cortez, Sr., G.R. No. 197472, September 7,
2015; For further readings, see Aguinaldo v. Aquino IIL
G.R. No. 224302, November 29, 2016). "Otherwise stated,
whenever the acts affect the powers, prerogatives and
privileges of Congress, anyone of its ,rhembers may validly
bring an action to challenge the same tb safeguard and
maintain the sanctity thereof' (Umali· .v. Judicial and
Bar Council, G.R. No. 228628, July 25, 2017).
4. The concept of legal standing or locus standi has
been broadened more by recent Court pronouncements. One
case instructs:
"x x x [E]very citizen has the right, if not the duty, to
interfere and see that a public offense be properly pursued
and punished, and that a public grievance be remedied.
When a citizen exercises this "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. He may not
sustain an injury as direct and adverse as compared to
others but it is enough that he sufficiently demonstrates
in his petition that he is entitled to protection or relief
from the Court in the vindication of a public right.
. . .
''Verily, legal standing is grounded on the petitioner's
personal interest in the controversy. A citizen who files a
petition before the court asserting a public right satisfies
the requirement of personal interest simply because
the petitioner is a member of the general public upon
which the right is vested. A citizen's personal interest
in a case challenging an allegedly unconstitutional act
lies in his interest and duty to uphold and ensure the
proper execution of the law (Padilla u. Congress of the
Philippines, G.R. No. 231671, July 25, 2017).
5. The concept of 'standing,' because of its constitu­
tional underpinnings, is very different from questions
relating to whether or not a particular party is a real party
in interest. Although both are directed towards ensuring that
· CHAPTER III 245
CAUSES OF ACTION, ACTIONS, AND PARTIES
only certain parties can maintain an action, the concept of
standing requires an analysis of broader policy concerns. The
question, as to who the real party in interest is, involves only
a question on whether a person would be benefited or injured
by the judgment or whether or not he is entitled to the avails
of the suit (Kiloshay an, Inc. v. Morato, 246 SCRA 540, 562).
While standing is a constitutional law concept. (Hontiueros­
Baraqu�'tv. Toll Regulatory Bodrd, G.R. No. 181293, February
23, 2015), in private suits, locu.s standi requires a litigant to
be a "real party-in-interest" (United Church of Christ in the
Philippines, Inc. v. Bradford United Church of Christ, Inc.,
674 SCRA 92, 114, June 20, 2012; citations omitted). In other
words, in private suits, standing is governed by the "real
parties in interest" rule found in Sec. 2, Rule 3 of the Rules of
Court (Baltazar v. Ombudsman, 510 SCRA 74, 83).
Plaintiff in environmental cases
Any real party in interest, including the government an
d
juridical entities authorized by law, may file a civil action
involving the enforcement or violation of any environmental
law (Sec. 4, Rule 2, Rules of Procedure for Environmental
Cases).
Ground for 9ismissal when a party is not the real party in
interest
l. It will be observed that Rule 16 does not provide for
a ground for a motion to dismiss which directly states that
'the plaintiff or the defendant is not the real party in interest.'
Instead, the ground provided for in Sec. l(g) of Rule 16 is:
"g. That the pleading asserting the claim states no
cause of action."
2. It must, likewise, be reiterated that the rule does
not consider 'lack' of a cause of action or 'absence' of a cause
of action as the ground for dismissal. What it supplies as a
ground is that the pleading asserting the claim "states no
cause of action." It is the failure to state the cause of action, not
 246 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
its absence or lack, which could be invoked for the dismissal of
the claim.
3. Thus, if the plaintiff, for instance, has capacity to
sue but he is not the 'real party-in-interest,' the ground for
dismissal is a 'failure to ·state a cause of action' or that the
complaint 'states no cause of action.' . ,_
:: (Bcilayan Bay Rural Bank, Inc. v. National Livelihood Devel­
The caie of.Aguila v. Court 6f AJ;eals, 319 SCRA 246,
253, is enlightening:
"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."
The ruling in Balagtas v. Court of Appeals, 317 SCRA 69,
76-77, likewise, clearly states that if the 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 (See Philippine Numismatic and Antiquarian
Society v. Aquino, G.R. No. 206617, January 30, 2017; see also
Alvarado v. Ayala Land, Inc., G.R. No. 208426, September 30,
2017).
Representative parties
1. 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, an
executor or administrator, or a party authorized by law or by
the Rules (Sec. 3, Rule 3, Rules of Court).
2. Even where the action is allowed to be prosecuted
or defended by a representative party or someone acting in
a fiduciary capacity (like the trustee of an express trust, an
executor, or administrator), the beneficiary shall be included
in the title of the case and shall be deemed to be the real party
in interest (Sec. 3, Rule 3, Rules of Court; Aron v. Realon, 450
SCRA 372, 388). The phraseology of Sec. 3, Rule 3 leaves no
doubt as to what the rule is. lmpleading the beneficiary as a
CHAPTER III 247
CAUSES OF ACTION, ACTIONS, AND PARTIES
party is mandatory since said beneficiary is deemed to be �he
real party in interest.
For example, the Philippine Deposit Insurance Co�pora­
tion (PDIC) may prosecute or defend the case by or aga�nst a
_
bank as a representative party while the bank, w�ic� is un­
der ;conservatorship, will �emain as the real par�y m mterest
opment Corporation, G.R. No. 194589, September 21, 2015).
3. In derivativ� suits, the corporation concern�d m�st
be impleaded. It is actually its cause of action that is bemg
litigated (Florete, Jr. v. Florete, Sr., G.R. No. 174909, January
20, 2016).
Citizen suit under the Rules of Procedure for Environmental
Cases
1. A citizen suit may be filed by any Filipino ci�iz n in
e
representation of others, including minors or gene:1-'at10ns Yeet
tal
unborn, to enforce rights or obligations under environmen
laws (Sec. 5, Rule 2, Part II, Rules of f!rocedu . for re
Environmental Cases). This is a unique rule which aut�onzes
a suit in representation of generations yet unborn ev�n if �hose
r
represented are, at the time of the filing of the smt, neith
e
conceived nor born.
2. When the suit is filed, the court shall issue an order
which shall contain the following: (a) a brief description of the
cause of action; (b) a brief description of the reliefs praye� for,
and (c) an order requiring all interested ?a�ties to mamfest
their interest to intervene in the case withm 15 days from
notice thereof (Sec. 5, Rule 2, Part II, Rules of Procedure for
Environmental Cases).
Note that under the Rules of Court, in ordinary civil
actions, the court does not issue an order requiring intere�te_d
parties to manifest their intention to interv�ne. Instead, it � ·
s
· the intervenor who asks for leave of court to mtervene and his
intervention rests on judicial discretion (See Sec. 1, Rule 19,
Rules of Court) .
 248 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES CHAPTER III 249
CAUSES OF ACTION, ACTIONS, AND PARTIES

3. The order mentioned in the preceding

number may
be publ�. she?, by the laintiff, once in a new As to the Resident Marine Mammals, it was prayed that
_ �_ spaper of general the Court lower the benchmark in .locus standi as an exercise
circ�lat10n m the Philippines or copies of
said order may be of epistolary jurisdiction. In opposition, the public respondents
furmshed to all affected barangays (Sec. 5,
Rule 2, Part JI argued that the Resident Marine Mammals had no standing
Rules of Procedure for Environmental Cas
es).
because Sec. 1, Rule 3 of the Rules of Court requires parties to
Standing of rnarine mammals an action to be either natural or juridical persons. The public
�- :�: :,�
respondents contend that since petitioners R(:)sident Marine
An i:ntef�sting case had the ''.occasion to Mammals and Steward�/ petition was not.brought in the name
rule on the
lega� standing of marine mammals bein
g represented in of a real party-in-intere�t, it should be dismissed for failure to
a suit. There were two petitioners in the petit
ion. The first state a cause of act1on.
wer� the mammals collectively referred to
as the "Resident
Maru�e Mamm�ls." Said mammals were the The petitioners, Resident Marine Mammals, through the
toothed whales,
dolphms, porp01ses, and other cetacean species Stewards, countered by citing the 1972 United States case,
which inhabit
the waters in and around the Tanon Strait. Sierra Club u. Rogers C.B. Morton, wherein Justice William
They were joined
a�d re�resented by Gloria Estenzo Ramos (Ram 0. Douglas, dissenting to the conventional thought on legal
os) and Rose­
Liza EIS�a-Osorio (Eisma-Osorio) as their standing, opined that since even inanimate objects, like a ship
legal guardians
and as friends (to be collectively known as or a corporation, are sometimes parties in litigation, the same
"the Stewards")
who allegedly empathize with, and seek the prot rule should apply with respect to "valleys, alpine meadows,
ection of the
aforementioned marine species. rivers, lakes, estuaries, beaches, ridges, groves of trees,
· '
The procedural issue raised in the case was whe swampland, or even air that feels the destructive pressures of
ther or not modern technology and modern life."
the Resident Marine Mammals had locus stan
di or were real
parties-in-interest. The Resident Marine Mam
mals, through The Court, while conceding that environmental laws in
the Stewards, "claimed" that they had the
legal standing to the Philippines have adopted a liberal approach through the
file �his action sine the stood to be bene
� )'.' fited or injured by simplification of procedures and facilitating court access in
the Judgment _m this suit. In this regard,
they propounded environmental cases (like citizen suits), held that
that they have the right to demand that
they be accorded
�he benefits granted to them in multilateral international "x x x [D]evelopments in Philippine legal theory
mstruments that the Philippine Governm
. ent had signed, and jurisprudence have not progressed as far as Justice
under the concept of stipu lation pour autrui. Douglas's paradigm oflegal standing for inanimate objects
x x x." Besides, the Court explained that, the need to give
As to the Stewards who are natural persons,
the Court the resident marine mammals legal standing has been
ruled that they have legal standing. The Cour
t explained: eliminated by the Rules of Procedure for Environmental
Cases which allow any Filipino citizen, to bring a suit
"It is worth noting here that the Stewards are
joined to enforce environmental laws through the filing of a
as real parties in the petition and not just in repre
sentation "citizen's suit" (Resident Marine Mammals ofthe Protected
of the named cetacean species. The Stewards
, Ramos and Taiion Strait, e.g., Toothed Whales, Dolphins, Porpoises,
Eisma-Osorio, having shown in their petition
that there and other Cetacean Species, Joined in and Represented
may be possible violations of laws concernin
_ g the habitat herein by Human Beings Gloria Estenzo Ramos and Rase­
of the Resident Marine Mammals, therefore,
are declared Liza Eisma-Osorio, In Their Capacity as Legal Guardians
to possess the legal standing to file this petit
ion_'' . of the Lesser Life-Forms and as Responsible Stewards
 250 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
of God's v. Reyes, in his capacity as Secretary of the
Department of Energy, G.R. No. 180771, April 21, 2015).
Note: Although 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 St��ards, in their perso:q.�l capacities, joinEl"d in;the suit
arid were declared to have the required standing.
Indispensable parties (Bar 1996; 2015; 2017)
1. An indispensable party is a real party in interest
without whom no final determination can be had of an action
(Sec. 7, Rule 3, Rules of Court; St. Luke's College of Medicine v.
Spouses Perez, G.R. No. 222740, September 28, 2016; Enriquez
v. Vilar, G.R. No. 225309, March 6, 2018; Tumagan v. Kairuz,
G.R. No. 198124, September 12, 2018).
An indispensable party is one whose interest in the subject
matter of the suit and the relief sought are so inextricably
intertwined with the other parties that his legal presence
as a party to the proceeding is an absolute necessity. On the
contrary, a party is not indispensable to the suit if his interest
in the controversy or subject matter is distinct and divisible
from the interest of the other parties and will not necessarily
be prejudiced by a judgment which does complete justice to_
the parties in court "(Benedicto-Munoz v. Cacho-Olivares, G.R.
No. 179121, November 9, 2015; see also Philippine Veterans
Bank u. Spouses Sabado, G.R. No. 224204, August 30, 2017).
2. In a suit based on breach of contract, the contracting
parties are indispensable parties (St. Luke's College of
Medicine-v. Spouses Perez, supra).
3. The registered owner of a lot whose title the plaintiff
seeks to nullify is an indispensable party (Cagatao v. Almonte,
G.R. No. 174004, October 9, 2013; see also Tumagan v. Kairuz,
C.R. No. 198124, September 12, 2018).
4. The one who holds legal title to the property is
not an indispensable party in a suit between parties to an
0
unlawful detainer suit where the issue is mere possession and
CHAPTER III 251
CAUSES OF ACTION, ACTIONS, AND PARTIES
not ownership (Philippine Veterans Bank v. Spouses Sabado,
··
G.R_ No. 224204, August 30, 2017).
5. Also, where the persons who built a structure, like
a church, are sought to be prohibited to use the same, the
builders are indispensable parties. They will be affected by
the judgment anct without them, no fi.11,�l determination, of
the case can be ha.d (Geronimo v. Calderon, G.R. No. 201781,
December 10, 2014).
6. In a petition for a substantial correction or change
of entry in the civil registry under Rule 108, it is mandatory
that the civil registrar, as well as all other persons who have
or claim to have any interest that would be affected thereby be
made respondents because they are indispensable parties (In
the Matter for the Correction of Entry [Change of Family Name
in the Birth Certificate of Felipe C. Almojuela as Appearing in
the Records of the National Statistics Office] v. Republic, G.R.
No. 211724, August 24, 2016).
7. In action for partition of real property, all persons
who are co-heirs and persons having an interest in the
property are indispensable parties. An action for partition will
not lie without their joinder (Divinagracia v. Parilla, G.R. No.
196750, March 11, 2015). Bar 2017
8. . A transferee of a property pendente lite is not an
indispensable party, as he would, in any event, be bound
by the judgment against his predecessor (Santiago Land
Development Corporation v. Court of Appeals, 267 SCRA 79,
87).
9. The person whose right to the office is challenged
is a:n indispensable party. No action can proceed unless he is
joined (Galarosa u. Valencia, 227 SCRA 726).
10. In an action for reconveyance of a property,
the persons against whom reconveyance is asserted are
indispensable parties (Lozano u. Balesteros, 195 SCRA 681,
690).
From the above jurisprudence, it may be inferred that
a person is not an indispensable party if his interest in the
252 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
controversy or subject matter is separable from the interest
0
of the other parties. In a joint obligation, for instance, the
interest of one debtor is separate and distinct from that of his
co-debtor. This is because the credit or debt is presumed to be
divided into as many equal shares as there are creditors or
debtors. Hence, a suit against one debtor does not make· the
other an indispensable pa:rty to the suit (See Ar{ 1208, Civil
Code of the Philippines). ·
Compulsory joinder of indispensable parties
1. "x x x [T]he 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 real 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"
(Tumagan u. Kairuz, G.R. No. 198124, September 12, 2018).
It is only the joinder of indispensable parties which is
mandatory (See Sec. 7, Rule 3, Rules of Court). Clearly, the
rule directs a compulsory joinder of indispensable parties (See
Crisologo v. JEWN Agro-Industrial Corporation, G.R. No.
196894, March 3, 2014). The joinder of othe:r.: parties is merely
permissive (See Sec. 6, Rule 3, Rules of Court).
2. One decision of the Court declares that whenever
it appears to the court in the course of a proceeding that an
indispensable party has not been joined, it is the duty of the
court to stop the trial and order the inclusion of such party.
The absence of an indispensable party renders all subsequent
actuations of the court null and void, for want of authority
to act, not only as to the absent parties, but even as to those
present. Accordingly, the responsibility of impleading all the
indispensable parties rests on the plaintiff. The defendant
does not have the right to compel the plaintiff to prosecute
the action against a party if he does not wish to do so, but the
plaintiff will have to suffer the consequences of any error he
CHAPTER III 253
CAUSES OF ACTION, ACTIONS, AND PARTIES
might commit in exercising his option (Uy v. Court of Appeals,
494 SCRA 535, 545). Bar 2010
Effect of non-joinder of indispensable parties
The inclusion of indispensable parties is a jurisdictional
requirem�nt. Any decision renderedpy a court without first
obtaining:the iequired jurisdiction over indispensable parties
is null and void for want of jurisdiction (Florete, Jr. v. Florete,
Sr., G.R. No. 174909, January 20, 2016), not only as to the
absent parties but even as to those present (People v. Go, G.R.
No. 201644, September 24, 2014). The reason is not difficult
to see. Indispensable parties are those without whom no final
determination can be had of an action (See Sec. 7, Rule 3,
Rules of Court).
÷
Failure to implead an indispensable party; not a ground for
dismissal (Bar 2010)
1. If a complaint or petition is not brought in the nam
of or against an indispensable party, a motion to dismiss may
be filed on the ground that the complaint states no cause of
action. However, an outright dismissal is not the immediate
remedy authorized by the Rules because, under the Rules,
the non-joinder (or misjoinder) of parties is not a ground
for dismissal of an action. Instead, parties may be dropped
or added by the court on motion of any party or on its own
initiative at any stage of the action and on such terms as are
just (Sec. 11, Rule 3, Rules of Court; see also Land Bank of the
Philippines v. Cacayuran, G.R. No. 191667, April 22, 2015).
2. The rule is consistent with the options available to
the court when faced with a motion to dismiss. Aside from
dismissing the complaint or denying the motion, it may order
the amendment of the pleading (Sec. 3, Rule 16, Rules of Court).
It is when the order of the court to implead an indispensable
party goes unheeded may the case be dismissed. The court is
fully clothed with the authority 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 (Sec. 3, Rule 17, Rules of

254 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Court; Plasabas v. Court of Appeals, 582 SCRA 686, 692-693;
Spouses Laus v. Optimum Security Services, Inc., G.R. No.
208343, February 3, 2016; citations omitted).
3. Failure to implead an indispensable party is not a
ground for the dismissal of an action, as the remedy in such
a case is to implead_ the party claimed, to �e indispensable, ..
} considering thaf: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 (Galido v. Magrare, G.R. No. 206584, January
11, 2016). It is error for the court to order the dismissal of
the case. The Court definitively explained that in instances
of non-joinder of indispensable parties, the proper remedy is
to implead them and not to dismiss the case. The non-joinder
of indispensable parties is not a ground for the dismissal
of an action. At any stage of a judicial proceeding and/or at
such terms as are just, parties may be added on the motion
of a party or on the initiative of the tribunal concerned. If the
plaintiff refuses to implead an indispensable party despite the
order of the court, that court may dismiss· the complaint for
the plaintiffs failure to comply with the order (Divinagracia
v. Parilla, G.R. No. 196750, March 12, 2015; see also Land
Bank of the Philippines v. Cacayuran, supra).
Misjoinder and non-joinder of parties (Bar 2009; 2010)
1. · A party is misjoined when he is made a party to the
action although he should not be impleaded. A party is not
joined when he is supposed to be joined but is not impleaded
in the action.
2. To reiterate, neither misjoinder nor non-joinder
of parties is a ground for the dismissal .of an action. Parties
may be dropped or added by order of the court on motion of
any party or on its own initiative at any stage of the action
and on such terms as are just. If there is any claim against
a party misjoined, the same may be severed and proceeded
with separately (Sec. 11, Rule 3, Rules of Court; Almendras v.
Court of Appeals, 293 SCRA 540, 544).
00
3. Even if neither misjoinder nor non-joinder is a
ground for dismissal of the action, the failure to obey the
CHAPTER III 255
CAUSES OF ACTION, ACTIONS, AND PARTIES
order of the court to drop or add a party is a ground for the
dismissal of the complaint under Sec. 3, Rule 17 of the Rule·s
of Court. One case holds: "It is only upon the plaintiffs refusal
to comply with the order to join indispensable parties that the
case may be dismissed" (Florete, Jr. v. FlQrete, Sr., G.R. No.
174909, January 20, 2016).
Necessary parties
L A necessary party is one who is not indispensable
but who ought to be joined as a party to the case if complete
relief is to be accorded as to those already parties, or for a
complete determination or settlement of the claim subject of
the action (Sec. 8, Rule 3, Rules of Court).
2. The non-inclusion of a necessary party does not
prevent the court from proceeding in the action (See Sec. 9,
Rule 3, Rules of Court). Hence, a final determination of the
case can be had but only among the parties already impleaded
even if a necessary party, for some justifiable reason, is not
joined. But it would be better that all necessary parties are
joined so the parties may obtain complete relief.
00
Distinction between an indispensable and a necessary party
1. . An indispensable, party must be joined under any
and all conditions while a necessary party should be joined
whenever possible (Borlasa v. Polistico, 47 Phil. 345, 348).
Stated otherwise, an indispensable party must be joined
because the court cannot proceed without him. Hence, his
presence is mandatory. The presen�e of a necessary party is
not mandatory oecause his interest is separable from that of
the indispensable party. He has to be joined only whenever
possible to afford complete relief to the parties and to avoid
multiple litigations.
2. A final decree can be had in a case even without a
necessary party because his interests are separable from the
interest litigated in the case (Chua v. Torres, 468 SCRA 358,
367; Seno v. Mangubat, 156 SCRA 113, 119).
 256 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
A joint debtor is merely a necessary party. If AA and BB
are the joint debtors of CC for Pl million, the latter who wants
to collect only from AA in the meantime, may file an action
for collection against AA alone. In the suit against AA, BB is
a necessary party because without him, CC cann_ot collect the
· entire debt but only half of it. Thus, he cannot have complete
relief by impleading only one debtor. Iri the suit against ·AA,,.;.
BB is not an indispensable party becailse even without Him.
being impleaded, the suit can proceed against AA. It is ,AA .
who is an indispensable party to the suit filed by CC because
without AA being impleaded, CC cannot collect from AA.
Duty of pleader if a necessary party is not joined; effect (Bar
1998)
Whenever, in any pleading in which a claim is asserted,
a necessary party is not joined, the pleader shall set forth the
name of the necessary party, if his name is known, and state
why such party is omitted (Sec. 9, Rule 3, Rules of Court).
When court may order joinder of a necessary party (Bar
1998)
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 (Sec. 9, Rule 3, Rules of Court).
Effect of failure to comply with the order of the court (Bar
1998; 2011)
The failure to comply with the order of the court to include
a necessary party, without justifiable cause, shall be deemed
a waiver of the claim against such party (Sec. 9, Rule 3, Rules
of Court).
Effect of a Justified non ..inclusion of a necessary party (Bar
'1998)
1. The non-inclusion of a necessary party does not
prevent the court from proceeding in the action, and the
CHAPTER III 257.
CAUSES OF ACTION, ACTIONS, AND PARTIES
judgment rendered therein shall be without prejudice to th8.
rights of such necessary party (Sec. 9, Rule 3, Rules of Court;
Agro Conglomerates, Inc� u. Court of Appeals, 348 SCRA 450,
460; Hemedez u. Court of Appeals, 316 SCRA 347, 375).
2. Assume that B bought a car from S on an installment
basis. A chattel mortgage wa� executed on the c,ar in favor of
to
S se�ure the obligation: Befcire the payment w.as completed,
B sold the car to D. It was agreed solely between B and D that
D would be responsible for the monthly installments: D failed
to pay three installments.
May S sue D alone in the foreclosure suit or replevin
suit? Answer: He cannot. B must be made a defendant. B is an
indispensable party in relation to S. The foreclosure or replevin
suit is premised on the default of B, the debtor. S would have
no right to foreclose the mortgage or repossess the car without
establishing the default of B, unless the obligation of B to S
obligation by substituting the person of the debtor.
0
was assigned to D with the consent of S, thereby novating the
Unwilling co-plaintiff
An unwilling co-plaintiff is a party who is supposed to be
a plaintiff but whose consent to be joined as a plaintiff cannot
be obtained as when he refuses to be a party to the action.
· Under Sec. 10 of Rule 3, said unwilling co-plaintiff (a) may be
made a defendant, and (b) the reason therefor shall be stated
in the complaint.
Alternative defendants (Bar 2011)
1. Where the plaintiff cannot definitely identify whQ
among two or more persons should be im pleaded as a defendant,
he may join all of them as defendants in the alternative. Under
Sec. 13 of Rule 3, "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" (Sec. 13, Rule 3, Rules of Court). Just as the
rule allows a suit against defendants in the alternative, the
 258 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
rule also allows alternative causes of action and alternative
defenses (See Sec. 2, Rule 8, Rules of Court).
2. Assume that Mr. X, a pedestrian, was injured in
the collision of two vehicles. He suffered injuries but does not
know with certainty which vehicle caused the mishap. What•
should fy.1:r. � do if he wants to.sue�,Answer: He should
. , sue;the
...
vehicle drivers/owners in the alternative.
3. P sent some goods to D pursuant to a contract. The
goods were delivered to E, the known agent of D. D did not
pay P. D contends that he has not received the goods. P claims
otherwise and insists that D had received the goods. Should
P sue D or should he sue E? Answer: P should sue both but in
the alternative.
4. Plaintiff may sue the shipping company and the
arrastre op�rator alternatively for the recovery of damages
to goods shipped through a maritime vessel (Rizal Surety
& Insurance Company v. Manila Railroad Corporation, 70
SCRA 187).
Unknown identity or name of the defendant
Whenever the identity or name of the defendant is
unknown, he may be sued as the unknown owner heir
devisee, or by such other designation as the ·case may r�quire'.
when his identity or true name is discovered, the pleadin�
must be amended accordingly (Sec. 14, Rule 3, Rules of Court).
Effect of death of a party on the attorney-client relationship;
duty of counsel (Bar 2016)
1. T�e de �th of the client extinguishes the attorney­
. The above rule is plain and explicit. The hei�s may be
chent relat10nsh1p and divests the counsel of his authority
to represent the client. Accordingly, a dead client has no
personality and cannot be represented by an attorney (Lavina
v. Court of Appeals, 171 SCRA 691, 702). Neither does he
become the counsel of the heirs of the deceased unless his
services are engaged by said heirs (Lawas v. Court of Appeals
146 SCRA 173, 176).
CHAPTER III 259
CAUSES OF ACTION, ACTIONS, AND PARTIES
2. Whenever a party to a pending action dies, it is the
duty of the counsel of the deceased party to inform the court·
of such fact within 30 days after such death. The counsel has
also the obligation to give the name and address of the legal
representative of the deceased. This duty is mandatory and
failure to comply therewith is a ground for disciplinary action
-
(Sec.. 16, Rule 3, Ru_les of Court; Cordova; v. Tornilla, 246
· SCRA 430, 432; Heirs of Maximo Regoso v. ·Court of Appeals,
211. SCRA 348, 351). Note that this duty is imposed upon the
· counsel of the deceased party, not upon the counsel of the
surviving party.
Action of court upon notice of death; effect of death on the
case (Bar 2009)
1. Upon receipt of the notice of death, the court shall
determine whether or not the claim is extinguished by such
death. If the claim survives, the court shall order the legal
representative or representatives of the deceased, named in
the information given by counsel, to appear and be substituted
for the deceased within 30 days from notice (Sec. 16, Rule 3,
Rules of Court). The substitution of the deceased would not
be ordered by the court in cases where the death of the party
would extinguish the action because substitution is proper
only when the action survives (Suggested reading: Aguas v.
Llemos, 5 SCRA 959):Bar 1999; 2014
2. Under the present rule, the heirs of the deceased
may be allowed to be substituted for the deceased, without
· requiring the appointment of an executor or administrator
and the court may appoint a guardian ad litem for the minor
heirs (Sec. 16, Rule 3, Rules of.Court).
allowed to be substituted for the deceased. Where an heir
appears as substitute for the deceased, there is no more need
to require the appointment of an executor or administrator.
Thus, it has been held that an heir does not need to first
secure the appointment of an administrator of the estate of
the deceased because, from the very moment of death, he

260 CML PROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
steps into the shoes of the deceased and acquires his rights
as devisee/legatee (See San Juan v. Cruz, 497 SCRA 410, 425-
426).
It is, however, possible that any of the following may
occur: (a) the counsel for the deceased does not name a legal
representative, or (b) there is a representative named but he
fails to appear within the speG1fied period. When any of the
above 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. All court
charges in procuring such appointment, if defrayed by the
opposing party, may be recovered as costs (Sec. 16, Rule 3,
Rules of Court). Bar 2016
Importance of substitution of the deceased
The purpose of the rule on 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. It is for the protection of the right of
every party to due process. Prior substitution is effected for
the trial court to obtain jurisdiction over the persons and to
obviate any future claim that he or she was not apprised of
the litigation (Heirs of Josefina Gabriel v. Cebrero, G.R. No.
222737, November 12, 2018).
No requirement for amendment of complaint or service of
summons
L The court, under Sec. 16 of Rule 3 is not required to
issue an order to amend the complaint upon being notified of
th� death of a party but to issue an order requiring the legal
representative to appear and be substituted for the deceased.
It is not the amendment of the pleading, but the order of
substitution and its service, that are the steps towards the
substitution of the deceased by his representative or heir.
Neither is the issuance and the service of summons required.
Nothing in Sec. 16 of Rule 3 mandates service of summons.
Instead of issuing summons, the court shall, under the .
authority of the same provision, order the legal representative
CHAPTER III 261
CAUSES OF ACTION, ACTIONS, AND PARTIES
of the deceased to appear and be substituted for the said
deceased within 30 days from notice. It is the service of the
order of substitution upon the substitute that enables the
court to acquire jurisdiction over said substitute (For further
readings, see Ferreria v. Vda. De Gonzales, G.R. No. L-11567,
July 17, 1958). Bar 1999
Purpose and i�poJ�nce of substitution �fthe deceased
1. The p�rpose behind the rule on substitution of th�
deceased 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. 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 (Vda. De
Salazar v. Court of Appeals, 250 SCRA 305, 308). Bar 2014
Non-compliance with the rules on substitution of a deceased
party renders the proceedings of the trial court infirm becaus e
the court has no jurisdiction over the person of the legal
representative or heirs of the deceased (Brioso v. Rili-Mariano,
396 SCRA 549, 556-557). A party to be affected by a personal
judgment must have a day in court and an opportunity to
be heard (Suggested readings: Vda. De Haberer v. Court of
Appeals, 104 SCRA 534; Ferreria v. Vda. De Gonzales, G.R.
No. L-11567, July 17, 1958; Ibanez v. Harper, G.R. No. 194272,
February 17, 2017). Bar 1999
2. However, in a case involving ejectment, it was
ruled that the non-substitution of the deceased by his legal
representatives, because of the failure of counsel to inform the
court of the death of his client, does not deprive the court of
jurisdiction. The decision of the court is, nevertheless, binding
upon the successors-in-interest of the deceased. A judgment in
an ejectment case may be enforced not only against defendants
therein but also against the members of their family, their
relatives, or privies who derived their right of possession from
the deceased defendant (Florendo, Jr. v. Coloma, 129 SCRA
304, 309-311). Bar 2011
3. Formal substitution is, however, not necessary
when the heirs themselves voluntarily appeared in the action,
 CIVIL PROCEDURE, VOLUME I
262
THE BAR LECTURES SERIES
participated therein and presented evidence in defense of the
deceased defendant (Vda. De Salazar v. Court of Appeals,
250 SCRA 305, 309). In the absence of a formal substitution'
the court can acquire jurisdiction over the person of the
decedent's representative if he voluntarily submits himself to
said jurisdiction (Cordova v. Tornillci, 246 SCRA 430, 432; For
further readings, see Cardenas v. Heirs of Spous'?s Aguilar,
G.R/No. 191079, March 2, 2016; Ibanez v. Harp�r, G.R. No.
194272, February 17, 2017).
Examples of actions which survive the death of a party (Bar
2011)
1. Section 1, Rule 87 of the Rules of Court enumerates
actions that survive against a de�edent'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.
Hence, an action for damages filed against the defendant
should not be dismissed upon his death. The action against
such defendant survives since it is one' to recover damages for
an injury to the plaintiff (Tan v. Republic, G.R. No. 216756,
August 8, 2018).
2. Actions to recover personal property like replevin
and actions to recover real property like forcible entry,
unlawful detainer, accion publiciana, accion r.eivindicatoria,
•
are examples of actions that survive. So are actions to enforce
a lien on the property, like foreclosure of mortgages. Also, an
action for quieting of title with damages is an action involving
real property. It survives and the claim is not extinguished by
the death of a party (Saligumba v. Calanog, 573 SCRA 8, 17).
An ejectment case survives the death of a party. It
continues until judgment because the issue concerning the
CHAPTER III 263
CAUSES OF ACTION, ACTIONS, AND PARTIES
illegality of the defendant's possession is still alive, and upon
its resolution depends the corollary issue of whether and
how much damages may be recovered (Tanhueco v. Aguilar,
33 SCRA 233, 237; Vda. De Salazar v. Court of Appeals, 250
SCRA 305, 311; Florendo, Jr. u. Coloma, 129 SCRA 304, 310).
The Court teaches:
"An ej�ctment case is a· real action that is n�t
extinguished by the death of a party. The judgment in
an ejectmerit case is conclusive between the parties and
their successors-in-interest by title subsequent to the
commencement of the action. Hence, it is enforceable by
or against the heirs of the deceased. Thejudgment entitles
the winning party to: (a) the restitution of the premises,
(b) the sum justly due as arrears of rent or as reasonable
compensation for the use and occupation of the premises,
and (c) attorney 's fees and costs" (Rivera-Calingasan v.
Rivera, G.R. No. 171555, April 17, 2013).
3. The action to recover damages arising from delicts
also survives. Under the last paragraph of Sec. 4 of Rule 111,
if the accused dies before arraignment, while the criminal case
shall be dismissed, such dismissal is without prejudice to any
civil action the offended party may file against the estate of
the deceased. If the accused dies after arraignment and during
-
-
the pendency of the criminal action, the civil liabili.ty arising
from the crime is exting�ishetl but any independent civil
action (that action arising from other sources of obligations)
may be continued against the estate or legal representative of
the accused upon proper substitution, or against said estate,
as the case may be.
Actions based on the tortious conduct of the defendant
survive the death of the latter (Melgar u. Buenviaje, 179 SCRA
196, 201; Board of Liquidators u. Kalaw, 20 SCRA 987, 1000).
4. If the action does not survive like legal separation,
the proper action of the court is to simply dismiss the case. It
follows then that substitution will not be required.
 CML PROCEDURE, VOLUME I
_264
. THE BAR LECTURES SERIES
Actions for the recovery of money arising from contractual
obligations
1. When the action is for the recovery of money arising
from contract, express or implied, and the defendant dies before
entry of final judgment in the court in which the action .was
pending at the time of such death, the court shall not dismiss
. th�- suit. The case sha. ll h� allowed to conti:µue 'until entry of
· final judgment (Sec. 20, Rule 3, Rules of Court).''Before entry
• of final judgment' means the case is on trial or on appeal. In
any of these situations, there is yet no final judgment to be
entered.
If the plaintiff obtains a favorable judgment, said
judgment shall be enforced following the procedure provided
for in the Rules for prosecuting claims against the estate of a
deceased person (Sec. 20, Rule 3, Rules of Court). Because of
the rule mandating compliance with the rule for prosecuting
claims against the estate, the prevailing plaintiff is not
supposed to file a motion for the issuance of an order and writ
of execution of the judgment. Since the action is a claim for
money, the judgment for money favorable to the plaintiff shall
be filed as a money claim against the estate of the decedent
(Sec. 5, Rule 86, Rules of Court; For related readings, see Heirs
of Spouses Maglasang v. Manila Banking Corporation, G.R.
No. 171206, September 23, 2013). Bar 2000; 2009; 2012; 2014
Action for recovery of money arising from contract,
expressed or implied
The action need not literally arise from contracts. The
term, "implied" accordingly, may mean a claim arising from law
or a quasi contract (Regalado, Remedial Law Compendium,
Volume II, 2008 Ed., pp. 76-77, citing Leung Ben v. O'Brien,
38 Phil. 182). The term does not include money claims arising
from a crime or a quasi-delict.
Incompetency or incapacity of a party during the pendency
of the action
In case a party becomes incapacitated or incompetent
during the pendency of the action, the court, upon motion with
CHAPTER III 265
CAUSES OF ACTION, ACTIONS, AND PARTIES
notice, may allow the action to be continued by or against the
incompetent or incapacitated party with the assistance of his·
legal guardian or guardian ad litem (Sec. 18, Rule 3, Rules of
Court).
Transfer of interest
1. · In case of transfer of• interest, the action may be
continued by or against the orfginal party, unless the court,
upon motion, directs the person to whom the inte.rest · is
transferred to be substituted in the action or joined with the
original party (Sec. 19, Rule 3, Rules of Court). A transferee
pendente lite is a proper party that stands exactly in the shoes
of the transferor, the original party.
2. Transferees are bound by the proceedings and
judgment in the case, such that there is no need for them to
be included or impleaded by name. The Court has even gone
further by saying that the transferee is joined or substituted in
the pending action by operation of law from the exact moment
when the transfer of interest is perfected between the original
party and the transferee. The Court has, likewise, recognized
that the trial court is given wide discretion and enough leeway
to determine who may be joined in a proceeding, or whether a
party may properly be substituted by another due to a transfer
of interest (Cameron Qranville 3 Asset Management, Inc. V.
Chua, G.R. No. 191170, September 14, 2016).
Indigent parties (Bar 2016)
1. 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 (Sec. 21, Rule 3, Rules of
Court).
The application and hearing to litigate as an indigent
litigant is made ex parte (Sec. 21, Rule 3, Rules of Court).
2. If one is authorized to litigate as an indigent, such
authority shall include an exemption from the payment of
(a) docket fees; (b) other lawful fees; and (c) transcripts of,
266 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
stenographic notes, which the court may order to be furnished
him (Sec. 21, Rule 3, Rules of Court).
However, the amount of the docket and other lawful fees,
which the indigent was exempted from paying, shall be 0
lien on
the judgment rendered in the case favorable to the indigent.
A li�n on the judgme�t shall not arise if the court provides
otherwise (Sef. 21/Rule 3, Rules of Court).
3. While the rule allows an. ex parte application and
hearing to litigate as an indigent, at any time before judgment
is rendered by the trial court, any adverse party may contest
the grant of the authority to a party to litigate as an indigent.
If the court should determine that the party, declared as
an indigent is in fact a person �th sufficient income and
property, the proper docket and lawful fees shall be assessed
and collected by the clerk of court (Sec. 21, Rule 3, Rules of
Court).
In case the grant of the authority to litigate as an indigent
is contested by any party, the determination of the court on
whether or not the grant of the earlier authority is proper is
to be made after hearing, not ex parte (Sec. 21, Rule 3, Rules
of Court). Is
done with
inspect to
Role of the 'Solicitor General'
1. The rule is that only the Solicitor General can
bring and defend actions on behalf of the Republic of the
Philippines and that actions filed in the name of the Republic
or its agencies and instrumentalities, if not initiated by the
Solicitor General, will be summarily dismissed. The authority
of .the Solicitor General is embodied in Sec. 35(1), ChaP.ter
12, Title III, and Book IV of the Administrative Code of
1987 (Cooperative Development Authority v. Dolefil Agrarian
Reform Beneficiaries Cooperative, 382 SCRA 552, 565).
2. Also, in any action involving the validity of any
treaty, law, ordinance, executive order, presidential decree,
rule or regulations, the court, in its discretion, may require
the appearance of the Solicitor General who may be heard in
CHAPTER III 267
CAUSES OF ACTION, ACTIONS, AND PARTIES
person or through a representative duly designated by him
(Sec. 22, Rule 3, Rules of Court).
3. In criminal actions brought before the Court of
Appeals or the Supreme Court, the authority to represent the
State is solely vested in the OSG. This is.pursuant to Sec. 35(1),.
Chapter 12, Title III, Book III of the Administrat�ve Code of
19$7, as amended, providing that the OSG shall)·epresent the
Government in the Supreme Court and the Court of Appeals in
all criminal proceedings. Only the Solicitor General may bring
or defend actions on. behalf of the People of the Philippines
once such actions are brought before the Court of Appeals or
Supreme Court (Cooperative Development Authority v. Dolefil
Agrarian Reform Beneficiaries Cooperative, supra).
Suit by or against spouses
Husband and wife shall sue or be sued jointly, except as
provided by law (Sec. 4, Rule 3, Rules of Court). An instanc
when a spouse need not be joined in a suit involving the oth
is when the litigation pertains to an exclusive property of a
spouse. In such a case, the owner-spouse may appear alon ÷
in court to litigate with regard to the same (Art. 111, Family
Code of the Philippines).
There may be instances when, despite the separation
of property, one spouse may end up beinK sued and held
answerable for the liabilities incurred by the other spouse
because "The liability of the spouses to creditors for family
expenses shall, however, be solidary" (Art. 146, Family Code
of the Philippines). Under a solidarity liability, each one of
the spouses is bound to render entire compliance with the
obligation (Arts. 1207 and 1216, Civil Code of the Philippines).
Class suit; requisites
1. A class suit is an action where one or more may
sue for the benefit of all if the requisites for said action are
complied with.
2. An action does not become a class suit merely
because it is designated as such in the pleadings. Whether the

268 . CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
suit is or is not a class suit depends upon the attendant facts
(Mathay v. Consolidated Bank & Trust Company, 58 SCRA
559; Borlasa v. Polistico, 47 Phil. 345).
3. For a class suit to prosper, the following requisites
must concur:
. (a) ,_:The subject matter of:�the controversy must.be
of common or general intetest to many persons; ·
(b) The persons are so numerous that it is
impracticable to join all as parties;
(c) rhe parties actually before the court are
sufficiently numerous and representative as to fully
protect the interests of all concerned; and
(d) The representatives sue or defend for the benefit
of all (Sec. 12, Rule 3, Rules of Court; Sulo ng Bayan, Inc.
v. Araneta, 72 SCRA 347, 356-357).
Commonality of interest in the subject matter
1. A class suit does not require a commonality of
interest in the questions involved in the suit. What is required
by the Rules is a common or general interest in the subject
matter of the litigation. The 'subject matter' of the action 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. It is not also a common question of law that sustains
a class suit but a common interest in the subject matter of the
controversy (Mathay v. Consolidated Bank & Trust Co., 58
SCRA 559, 571).
2. There is no class suit in an action filed by 400
residents, initiated through a former mayor, to recover
⇐
damages sustained due to their exposure to toxic wastes
and fumes emitted by the cooking gas plant of a corporation
located in the town. Each of the plaintiffs has a separate and
distinct injury not shared by other members of the class. Each
supposed plaintiff has to prove his own injury. There is no
CHAPTER III 269
CAUSES OF ACTION, ACTIONS, AND PARTIES
common or general interest in the injuries allegedly suffered
by the members of the class. Bar 1994
3. There is 0no 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 pr_oven individually.,Bar:.1991
4. There could possibly be a class suit in the closure of a
road. In one case, residents of various subdivisions instituted a
class suit against a developer and its affiliates. The complaint
alleged that the plaintiffs were regular commuters and
motorists who constantly travel using the entry and exit toll
gates of South Luzon Expressway (SLEX) by passing through
a right-of-way public road; that they had been using said road
for more than 10 years; that the defendants excavated, broke
and deliberately ruined and closed the road that led to SLEX;
that the act of the defendants in excavating the road caused
damage, prejudice, inconvenience, annoyance, and loss of
precious hours to them, to the commuters and motorists
because traffic was re-routed to narrow streets that caused
terrible traffic congestion and hazard; and that its permanent
closure would not only prejudice their right to free and
unhampered use of the property but would also cause great
damage and irreparable injury.
Th� defe�dants, among other· defenses, argued that the
case was improperly instituted as a class suit. The Court,
however, ruled that there was a class suit because the
necessary elements for the maintenance of a class suit were
present. Accordingly, the suit is clearly one that benefits all
commuters and motorists who use the road and the closure
affected all those who use the same (Juana Complex I
Homeowners Association, Inc. v. Fil-Estate Land, Inc., G.R.
No. 152272, March 5, 2012).
No class suit when interests are conflicting
When the interests of the parties in the subject matter
are conflicting, a class suit will not prosper. Hence, an action
270 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
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
membership of the churches they purport to represent and
that the interests of the plaintiffs conflict with those of the
other inhabitants who were opposed to the recovery (!banes v. .
Roman f}atholic Church, 12 Ph,il. 227, 241).
No class suit by a corporation to recover property of its
members
A non-stock corporation may not institute an action, in
behalf of its individual members, for the recovery of certain
parcels of land allegedly owned· by its members and for the
nullification of the transfer of certificates of title issued
in favor of defendants. The corporation, being an entity
separate and distinct from its members, has no interest in the
individual property of its members, unless transferred to the
corporation. Absent any showing of interests, a corporation has
no personality to bring an action for the purpose of recovering
property, which belongs to the members, in their personal
capacities. Moreover, "a class suit does not lie in actions
for the recovery of property where several persons claim
ownership of their respective portions of property, as each one
could allege and prove his respective right in a different way
for each portion of the land, so that they cannot all be held to
have identical title through acquisitive prescription" (Sulo n'g
Bayan, Inc. v. Araneta, 72 SCRA 347, 356-377). Bar 1978
No class suii: to recover real property individually held
1. A class suit would not lie where each of the parties
has an interest only in the particular portion of the land he is
occupying and not in the portions individually occupied by the
other defendants (Ortigas & Company Limited Partnership v.
Ruiz, 148 SCRA 326, 339, citing Berses u. Villanueva, 25 Phil.
473).
2. 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
CHAPTER III 271
CAUSES OF ACTION, ACTIONS, AND PARTIES
parties to the exclusion of each other, such that the different
parties had determinable, though undivided, interest in
the property in question since they do not have a common
or general interest in the subject matter of the controversy .
(Mathay v. Consolidated Bank and Trust Company, 58 SCRA
559, 571-572).
No class suit to recover damages for pe'rsonal reputation:.
1
There is no class suit in an action filed by associations of
sugar planters to recover damages in behalf of individual sugar
planters for an allegedly libelous article in an international
magazine. There is no common or general interest in the
reputation of a specific individual. Each of the sugar planters
has a separate and distinct reputation in the community not
shared by the others (Newsweek, Inc. v. Intermediate Appellate
Court, 142 SCRA 171, 176-177).
Com_mon or general interest 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 th
e
country's resources, their generation, as well as generation.
yet unborn, to compel the Secretary of the Department of
· Environment and Natural Resources to: (1) cancel all mp.sting
timber license agreements in the country; and (2) cease and
desist from receiving, accepting, processing, renewing or
approving new timber license agreements. The Court agreed
that the subject matter of the complaint is of common and
general interest not just to several, but to all citizens of the
Philippines. Consequently, since the parties are so numerous,
it becomes impracticable, if not totally impossible, to bring all
of them before the court. Hence, the Court found that all the
requisites for the filing of a valid class suit under Sec. 12, Rule
3 of the Revised Rules of Court are present in the action.
In what could be deemed a novel ruling, which recognized
that even minors and generations yet unborn may be
represented in a class suit, the Court held:
272 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES CHAPTER III. 273
CAUSES OF ACTION, ACTIONS, AND PARTIES

· "[Th]e [Court] find[s] no difficulty in ruling that

they can, for themselves, for others of their generation right sought to be enforced (Paje v. Casino, G.R. No. 207257,
and for the succeeding generations, file a class suit. Their February 3, 2015). In representative suits, the beneficiary is
personality to sue in behalfof the succeeding generations deemed to be the real party in interest, not the representative
can only be based on the concept of inter-generational · (Sec. 3, Rule 3, Rules of Court).
responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter
e:x:pounded, considers the "rhythm and harmqily of -oOo
nature." X X X Such rhythm and harmony indispeiisably
include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their
exploration, development and utilization be equitably
accessible to the present as well as future generations.
Needless to say, every generation has a responsibility to
the next to preserve that rhythm and harmony for the
full enjoyment of a balanced and healthful ecology. Put
a little differently, the minors' assertion of their right to
a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of
that right for the generations to come" (Oposa v. Factoran,
224 SCRA 792, 802-803).

Dismissal or compromise of a class suit

A class suit shall not be dismissed or compromised
without the approval of the co1J,rt (Sec. 2, Rule 17, Rules of
Court). This provision is obviously intended to protect the
common interests of all those who initiated the class suit.

Class suit distinguished from representative suit

Representative suits are not the same as class suits. A
class suit is a representative suit only insofar as the persons
who institute it represent the entire class of persons who have
the same interest or who suffered the same injury. However,
unlike representative suits, the persons instituting a class
suit are not suing merely as representatives. They themselves
are real parties in interest directly injured by the acts or
omissions complained of. There is a common cause of action in
a class. The group collectively - not individually - enjoys the

Chapter IV
PLEADINGS AND MOTIONS
!.'PLEADINGS
A. General Principles on Pleadings
Nature of pleadings
Plead�ngs are the formal statements by the parties of
the operative facts which constitute their respective claims
and defenses (61A Am Jur 2d §1, 1981). Under the Rules of
Co1;1rt, pleadings are the written statements of the respective
claims and defenses of the parties submitted to the court for
appropriate judgment (Sec. 1, Rule 6, Rules of Court). Since
pleadings are described as "written statements," it is obvious
that in this jurisdiction, there can be no oral pleadings'.
Equally cle�r m the definition is what pleadings are supposed
_
to contain, i.e., the "claims" and "defenses" of the parties.
N_ecessity and purpose of pleadings
1. Pleadings are designed to develop and present the
precise points in dispute between the parties. Their office is to
inform t �e cou:t and the parties of the facts in issue. The object
of plea?mgs, 11: a more restricted and commonly accepted
sense, 1s to notify the opposite party of the facts which the
pleader expects to prove, so £hat he may not be misled in the
preparation of his case (61A Am Jur 2d, §3, 1981).
2. Pleadings are intended to secure a method by which
_ proceeds from the theory that it is the pleader who select.ed
the ISsues may be properly laid before the court (Santiago
u. De las Santos, 61 SCRA 146, 150). Pleadings supply the
framework that guides the court in conducting the proceedings.
274
CHAPTER IV 275
PLEADINGS AND MOTIONS
The actions of the court primarily depend upon the parties'
allegations in their pleadings. When, for example, objections
to the materiality of evidence are raised by one party, the
court inevitably has to refer to the pleadings to determine
whether or not the evidence objected to has relevance to the
issues raised in the pleadings.
Consth.rciit>n of pleadings
1, In this jurisdiction, all pleadings shall be liberally
construed so as to do substantial justice (Concrete Aggregate
Corporation u. Court of Appeals, 266 SCRA 88, 95). Pleadings
should receive a fair and reasonable construction in accordance
with the natural intendment of the words and 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 (71 C.J.S.,
Pleading, §53).
2. While it is the rule that pleadings should be liberall
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 pleading
cannot be controverted by the party making such admission
and are conclusive as to him, and that all proofs submitted d
by him contrary thereto or inconsistent therewith should be
ignored, whether objection is interposed or not (See Santiago
u. De las Santos, 61 SCRA 146, 149).
Construction of ambiguous allegations in pleadings
In case there are ambiguities in the pleadings, the sam e
must be construed most strongly against the pleader and thatt
no presumptions in his favor are to be indulged in. This rule
-
the language used and if his pleading is open to differentt
constructions, such ambiguities must be at the pleader's peril .
(61 Am Jur, Pleading, §57).
276 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Pleadings allowed by the Rules of Court (Bar 1996)⑦
The following are the pleadings allowed by the Rules of
Court: (a) complaint; (b) answer; (c) counterclaim; (d) cross­
claim; (e) third (fourth, etc.)-party complaint; (f) complaint­
in-intervention; and (g) reply (Sec. 2, Rule 6, Rules of Court).
Pleadings allowed under the Rules on Summary Procedure•
:·•. _i;,
·•·; ' .·.:,,..
1. When a case falls under the Rules on Summary
Procedure, the only pleadings allowed to be filed are: (a)
complaint; (b) compulsory counterclaim pleaded in the answer;
(c) cross-claim pleaded in the answer; and (d) answers thereto
(Sec. 3[A], II, Rules on Summary Procedure). The same are
the only pleadings allowed in actions for forcible entry and
unlawful detainer (Sec. 4, Rule 70, Rules of Court), such
actions being governed by the rule on summary procedure,
irrespective of the amount of damages and rentals sought to
be recovered (Sec. 3, Rule 70, Rules of Court).
2. A permissive counterclaim (See Sec. 3[AJ, II, Rules
on Summary Procedure), third-party complaint, reply and
pleading-in-intervention are prohibited under the Rules
on Summary Procedure (Sec. 19, N, Rules on Summary
Procedure) and also in actions for forcible entry and unlawful
detainer (Sec. 13, Rule 70, Rules of Court).
•
Pleadings in the Rule of Procedure for Small Claims Cases
1. Following the Rule of Procedure for Small Claims
Cases (A.111. No. 08-8-7-SC), the pleadings are expressed in
specific forms described therein.
For instance, instead of filing a complaint, as in an
ordinary civil action, a small claims action is commenced by
filing with the court an accomplished and verified Statement
of Claim (Form 1-SCC). No other formal pleading is necessary
to initiate a small claims action (Sec. 6, Rule of Procedure For
Small Claims Cases, A.M. No. 08-8-7-SC).
2. Instead of filing an answer, the defendant shall file
with the court and serve on the plaintiff a duly accomplished
277
CHAPTER IV
PLEADINGS AND MOTIONS
and verified Response (Form 3-SCC) (Secs. 12 and 13, Rule of
Procedure for Small Claims Cases, A.M. No. 08-8-7-SC). Any
claim which the defendant has against the plaintiff, shall be
filed ;s a counterclaim in the Response where the counterclaim
is compulsory as described in Sec. 15 of the Rule of Procedure
For Small Claims Cases, The defendant may, however,· elect
to file a counterclaim (permissive) against the\plaintiff even
if'it does not arise out bf the transaction or occurrence that
is.the subject of the plaintiffs claim provided i�s amount and
nature are covered by the Rule (Sec. 15, Rule of Procedure for
Small Claims Cases, A.M. No. 08-8-7-SC).
3. The following pleadings or petitions shall · not b
:
allowed in the cases covered under the Rule of Procedure fo:r
Small Claims Cases:
(a) Petition for relief from judgment;
(b) Petition for certiorari, mandamus, or prohibitio1
against any interlocutory order issued by the court;
(c) Reply;
(d) Third-party complaints; and
(e) Interventions (Sec. 16, Rule of Procedure for
Small Claims Cases, A.M. No. 08-8-7-SC).
Pleadings not allowed in a petition for a Writ of Amparo or
Habeas Data
In a petition for a writ of amparo or habeas data, the
following pleadings and petitions are not allowed:
(a) Counterclaim;
(b) Cross-claim;
(c) Third-party complaint;
(d) Reply; and
(e) Intervention (Sec. 11, The Rule on the· Writ of
Amparo, October 24, 2007; Sec. 13, The Rule on f!�beas
Data, February 2, 2008). The same provisions proh1b1t th-e
278 CMLPROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
filing of a petition for certiorari, mandamus or prohibition
against any interlocutory order.
-
Pleadings in the Rules of Procedure for Environmental
Cases
.1. The pleadings that may he filed are the (a):compli=tint;
(b) answer ·which may indude a:· compulsory c6Unterclaim
and cross-claim (Sec. 1, Rule 2, Part IL Rules of Procedure
for Environmental Cases, A.M. No. 09-6-8-SC). A reply and
0
rejoinder and a third-party complaint are prohibited pleadings
(Sec. 2, Rule 2, Part IL Rules of Procedure for Environmental
Cases, A.M. No. 09-6-8-SC).
2. A pleading in intervention may also be filed in a
citizen suit. Under Sec. 5, Rule 2 of the Rules of Procedure
For Environmental Cases, upon the filing of a citizen suit, the
±
court shall issue an order requiring all interested parties to
manifest their intention to intervene in the case within 15
days from notice.
Nature of a pleading; how determined
1. 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 (Sanchez v. People, G.R. No.
204589, November 19, 2014) and not its title (Fong u. Duenas,
G.I/,. No. 185592, June 15, 2015).
Thus, a complaint labeled as an action for a sum of money
and damages could actually be a complaint for rescission based
on the allegations of the complaint (Fong v. Duenas, G.R. No.
185592, June 15, 2015). Also, if the petitioner filed before the
Supreme Court a petition captioned "Petition for Certiorari"
based on Rule 65, but the allegations state that the issues
raised are pure questions of law, the cause of action is not
one based on Rule 65 which raises issues of jurisdiction, but
on Rule 45 which raises pure questions of law (See Sanchez v.
People, supra).
2. In one case, while the complaint was denominated
as one for specific performance, the allegations therein and
CHAPTER IV 279
PLEADINGS AND MOTIONS
the relief prayed for actually and ultimately sought for
the execution of a deed of conveyance to effect a transfer
of ownership of the real property in question. The action,
therefore, is a real action (Gochan v. Gochan, 372 SCRA 256,
263-264).
3. Be reminded that it is not only the nature of a cause
of action that i�'.detern�ined by the all�gations of the complaint
and the character of the relief sought. Such· allegations arid
relief also determine the body or court which has jurisdiction
over the action (Ching v. Subic Bay Golf and Country Club,
Inc., G.R. No. 174353, September 10, 2014). Thus, where the
allegations of the complaint clearly indicate the desire of the
plaintiff to eject the lessee from the premises, the action is
one for unlawful detainer cognizable by the MTC and not one
for coilection of the amount of more than P900,000 filed in the
RTC (For related readings, see Barrazona v. RTC of Baguio,
Branch 61, 486 SCRA 555).
B. Parts of a Pleading
Caption of the pleading
The caption contains the following: (a) name of the court;
(b) title of the action; and (c) docket number, if assigned (Sec.
1, Rul(! 7, Rules of Court).
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
the parties shall be indicated as either plaintiff or defendant.
They shall all b_e 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 (Sec. 1, Rule 7,
Rules of Court). Example: Pedro Reyes, et al.
Body of the pleading
①
② 1. The body of the pleading sets forth its designation,
the allegations of the party's claims or defenses, the relief
③

280 CML PROCEDURE,VOLUME I
THE BAR LECTURES SERIES
⑨ 3. Not all facts may be allowed as averments in a
prayed for, and the date of the pleading (Sec. 2, Rule 7, Rules
of Court).
2. The allegations in the body of the pleading shall be
divided into paragraphs and shall be so numbered for ready
identification. This numbering scheme is significant because,
, ,, in subsequent pleaili.µgs, a paragraph may,�e referred to only
by its number without need for repeating th� entire allegations
in the paragraph. Ea:ch paragraph shall contain a statement
of a single set of circumstances so far as that can be done with
convenience (Sec. 2, Rule 7, Rules of Court).
Headings; designation of causes of actions joined in one
complaint
When two or more causes of action are joined, the first
cause of action shall be prefaced with the words, "first cause
of action," of the second cause of action by the words, "second
cause of action," and so on for the others (Sec. 2, Rule 7, Rules
of Court).
Allegations of ultimate facts
1. Every pleading, including the complaint, is not
supposed to allege conclusions. A pleading must only aver
facts because con_clusions are for the courts to make. Thus,
it was clearly declared by the Court that "a bare allegation
that one is entitled to something is not an allegation but a
conclusion" (Lim v. Gamosa, G.R. No. 193964, December 2,
2015).
2. The rule requires that a pleading need only contain
the allegations of "ultimate facts," i.e., the facts essential to
a party's cause of action or defense (Sec. 1, Rule 8, Rules of
Court), Oor such facts as are so essential that they cannot be
stricken out without leaving the statement of the cause of
action inadequate (Canete v. Genuino Ice Company, 542 SCRA
206, 217). The ultimate facts are to be stated in a methodical
and logical form, and in a plain, concise and direct manner
(Sec. 1, Rule 8, Rules of Court; See Lim v. Gamosa, G.R. No.
193964, December 2, 2015).
CHAPTER IV 281
PLEADINGS .AND MOTIONS
.
pleading. Under Sec. 1 of Rule 8, every pleading shall omit
from its allegations statements of mere evidentiary facts. The
rule prohibiting allegations of evidentiary facts in a pleading
is not difficult to understand, Evidentiary matters are to be
presented during the trial of the case, not in the pleadings of
. the parti�s.
4.. ;;he ab6ve paragraphs.inerely·state general rtiles. A·.
complaint in an en�ironmental G_<J,S�, for _example, appears to
-
be governed by a different rule. In addition, to the requirement
-
that the complaint must state that it is an environmental
case, and the law involved, the rule requires also that l:1.11
evidence proving the cause of action consisting of affidavits,
documents, and if possible, object evidence, shall be attached
to the verified complaint (Sec. 3, Rule 2, Part IL Rules of
Procedure for Environmental Cases). If this is so, one cannot
avoid making statements or allegations of evidentiary facts.
In small claims cases, the statement of claim (complaint) i S
required to be accompanied by the affidavits of witness and
other evidence to support the claim, aside from photocopies of
the actionable document to support the claim (Sec. 6, A.M. No.
08-8- 7-SC). Similarly, a statement of evidentiary facts may
not be avoided in forcible entry and unlawful detainer case
since under Sec. 5 of Rule 70, matters of evidence are allowed
to be attached. to the complaint.
Relief
1. Following the averments of the cause of action of the
plaintiff, the complaint must contain a statement of the relief
sought from the court and to which he believes he is entitled.
This portion of the complaint is oftentimes referred to as lhe
"prayer."
O ← GR
2. Sec. 2(c), Rule 7, requires that the pleading shall
specify the relief sought. 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 (Philippine Airlines, Inc. v. Philippine
Airlines Employees Savings a'nd Loan Association, Inc., G.R.
 282 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
No. 201073, February 10, 2016; Martinez v. Buen, G.R. No.
187342, April 5, 2017; China Trust [Phils.] Commercial Bank
v. Turner, G.R. No. 191458, July 3, 2017).
✗ Ph
→However, although the rule mandates that the relief
prayed for be specified, the same rule allows a pleader to
include a "general prayer for such further or other relief a$
may be deemed'just or �quitable" (SeiSec. 2[c], Rule 7, RulJ�
of Court). Because of the rule allowing the inclusion of a
general prayer, it was ruled that under Sec. 2(c), Rule 7 of the
Rules of Court, "a court can grant the relief warranted by the
allegations and the proof even if it is not specifically sought
by the injured party; the inclusion of a general prayer may
justify the grant of a remedy different from or together with
the specific remedy sought, if the facts alleged in the complaint
and the evidence introduced so warrant" (Prince Transport,
Inc. v. Garcia, 639 SCRA 312, 330; see also Philippine
Airlines, Inc. v. Philippine Airlines Employees Savings and
Loan Association, Inc., supra).
Signature and address
1. Every pleading must be signed by the plaintiff 0
①
or
②
counsel representing him stating in either case his address.
not be a post office box (Sec. 3, Rule 7,
This address should D-
Rules of Court).
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 (Garrucho v. Court of
Appeals, 448 SCRA 165, 172).
=o 2. A signed pleading is one that is signed either by
-
the party himself or his counsel. Sec. 3, Rule 7 is clear on
this matter. It requires that a pleading must be signed by
the party or counsel representing him. 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 (Republic v. Kenrick Development Corporation,
498 SCRA 220, 229).
. · CHAPTER IV 283
PLEADINGS AND MOTIONS
Effect of an unsigned pleading
The signature in a pleading is important for it to have
a legal effect. Under the Rules of Court (Sec. 3, Rule 7),
612-1> "an unsigned pleading produces no legal effect." The court,
however, is authorized to allow the pleader to correct the
defic;iency if he shows to th� satisfaction of the co¥rt, that the
.
XPN faih.ire to sign the pleading:was due to mere inadyertenctarid
D
nodntendeci for delay (Sec. 3, Rule 7, Rules of Court).
-
Significance of the signature of counsel (Bar 1996; 2013)
. 1. The signature of a counsel in a pleading is significant.
His signature constitutes a certificate by him that (a) he
has read the pleading, (b) that to the best of his knowledge,
information and belief, there is good ground to support it, and
(c) that it is not interposed for delay (Sec. 3, Rule 7, Rul
of Court). A counsel's signature is such an integral part Of
pleading that failure to comply with this requirement reduees ·,
a pleading to a mere scrap of paper totally bereft of legal ff t
(Intestate Estate of Jose Uy v. Maghari IIL A.C. No. 10525
September 1, 2015).
A counsel's signature on a pleading is neither an empty
formality nor even a mere means of identification. Throughn
the counsel's signature, a lawyer asserts his competenc e,
credibility, and ethics. Signing a pleading is such a solemn
component of legal practice that the Court had, on occasions,
decried the delegation of this task to nonlawyers as a violation
of the Code of Professional Responsibility (Intestate Estate of
Jose Uy v. Maghari III, ibid.).
2. It has been held that counsel's authority and duty
to sign a pleading are pers.onal to him. "The preparation and
signing of a pleading constitute legal work involving practice
of law which is reserved exclusively for the members of the
legal profession. Accordingly, however, counsel may delegate
the signing of a pleading to another lawyer but cannot do so in
favor of one who is not x x x" (Republic v. Kenrick Development
Corporation, 498 SCRA 220, 230; Tapay v. Bancolo, 694 SCRA
1, 9-10, March 20, 2013).
284 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
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 signs a pleading in violation of the Rules;
(c) when he alleges 1n the pleading scandalous or indecent
matter; or (d) when he fails to promptly report to the cmfrt a
change of hfa address (Sec. 3, Rule'.7, Rules of Court).
Verification in a pleading (Bar 2018)
Pleadings need not be under oath, verified or accompanied
by affidavit, except when so required by law or rule (Sec. 4,
Rule 7, Rules of Court; Re; Letter of Dimaano Requesting
Investigation of Justice Lantion, A.M. No. 17-03-03-CA, July 1,
2017). Examples: The statement of claim in small claims cases
requires a verification (Sec. 6, A.M No. 08-8-7-SC, February
- The verification requirement is significant, as it is intended
1, 2016). All pleadings in forcible entry and unlawful detainer
actions need to be verified (Sec. 4, Rule 70, Rules of Court).
Bar 2018 Petitions for certiorari, prohibition, and mandamus
require a verification (Secs. 1-3, Rule 65, Rules of Court). So
does a petition for quo warranto (Sec. 1, Rule 66, Rules of
Court). A complaint in an environmental case must also be
verified (Sec. 3, Rule 2, Rules of Procedure for Environmental
Cases).
How a pleading is verified
1. A pleading is verified by an affidavit. This 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 (Sec. 4, Rule 7, Rules
-
of Court, as amended by A.M. No. 00-2-10, May 1, 2000). A
verification cannot be based on mere ''belief." The amendment
to Sec. 4 of Rule 7 removed any reference to ''belief' to ensure
that the pleading is based on facts, not on mere imagination
(Commissioner of Internal Revenue v. Apo Cement Corporation,
G.R. No. 193381, February 8, 2017). Thus, a verification based
on "information and belief' or upon "knowledge, information
CHAPTER IV 285
PLEADINGS AND MOTIONS
and belief," shall be treated as an unsigned pleading (Sec.
4, Rule 7, Rules of Court; For further readings, see Letter of
_
Dimaano Requesting Investigation of Judge Lantwn, A.M. No.
17-03-03-CA, July 11, 2017).
2. · The verification requirement is "deemed sub­
:stantially complied ,�ith when one who., has an �mple
.
.'.:knowledge to swear .to the truth of the aHegat10ps m the
· complaint or petition signs the verificatio1:,0
and whe� matters
alleged in the petition have been made m �?od faith o� are
_
true and correct" (Vda. De Formoso v. Philippine National
Bank; 650 SCRA 35, 44, G.R. No. 154704, June 1, 2011; see
also William Go Que Construct.ion v. Court of Appeals, G.R.
No. 191699, April 19, 2016).
Significance of a verification
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 (Sarmiento v. Zaratan, 514 SCRA 246, 257; Bank of the
Philippine Islands v. Court of Appeals, 569 SCRA 510, 52 ;
Presidential Commission on Good Government [PCGGJ v.
Dumayas, G.R. No. 209447, August 11, 2015; Commissioner
of Internal Revenue v., Apo Cement Corporation, G.R. No:
193381, February 8, 2017; see also De Lima v. Guerrero, G.R.
No. 229781, October 10, 2017).
Effect of lack of a verification or of a defective verification
(Bar 2011)
1. A pleading required to be verified but lacks the proper
verification shall be treated as an unsigned pleading (Sec.
4, Rule 7, Rules of Court; Re; Letter of Dimaano Requesting
Investigation of Justice Lantion, A.M. No. 17-03-03-CA, July
1, 2017). Hence, it produces no legal effect (Sec. 3, Rule 7,
Rules of Court).
2. It has, however, been held that the abse1:ce o� a
verification, or the non-compliance with the venficat10n

286 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
requirement, does not necessarily render the pleading
defective. It is only a formal and not a jurisdictional
requirement. The requirement is a condition affecting only
the form of the pleading (Benguet Corporation v. Cordillera
Caraballo Mission, Inc., 469 SCRA 381, 384; Fuji Television
Network,:fnc. v. Espiritu, G.R;Nos. 204944-45, December 3,
2014; Wgterfront Cebu City Cqsino Hbtel, Inc. v. L'idesma, .
0
G.R. No. 197556, Mach 25, 2015). 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 (Vda. De Formoso v. Philippine National Bank; 650
SCRA 35; Regulus Development, Inc. v. De la Cruz, G.R. No.
198172, January 25, 2016). 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 (Pampanga Sugar
Development Company, Inc. v. NLRC, 272 SCRA 737, 743)
The Court emphasized that a defective verification
amounts to a formal defect which is neither jurisdictional or
fatal and for which the court may order a correction (Cortal v.
Inaki A. Larrazabal Enterprises, G.R. No. 199107, August 30,
2017; For additional readings, see also De Lima v. Guerrero,
Q.R. No. 229781, October 10, 2017).
Other requirements
1. All pleadings, motions, and papers filed in court
by counsel shall bear, in addition to his current Professional
Tax Receipt Number (PTR), his current IBP Official Receipt
Number indicating its date of issue. Pleadings, motions, and
papers which do not comply with this requirement may not
be acted upon by the court, without prejudice to whatever
disciplinary action the court may take against the erring
counsel, who shall, likewise, be required to comply with
the requirement within five days from notice. Failure to
comply with such requirement shall be a ground for further
disciplinary sanction and contempt of court (Circular No. 10,
�Tuly 24, 1985; Bar Matter No. 287, September 26, 2000).
CHAPTER IV 287
PLEADINGS AND MOTIONS
2. On November 12, 2002, the Supreme Court granted
the request of the Board of Governors of the IBP and the
Sangguniang Panlalawigan of Ilocos Norte to require all
lawyers to indicate their Roll of Attorneys Number in all
papers.and pleadings fil�dJnjudicial and quasi-judicial bodies,
in addition to the preyiously required current Professional
Tax J{,eceipt (PTR)')md th� IBP Official:'Receipt Number.
The requirement was meant to protect the public:by making
it easier to detect impostors who represent the:rr,iselves as
members of the bar. Non-compliance with this requirement
has the same effect as the failure to indicate counsel's IBP
Receipt Number. This requirement is directed only to lawyers
and not to be construed as precluding a party, who is not a
lawyer, from signing a pleading himself (Bar Matter No.
1132, April 1, 2003). The requirement is intended to protect
the integrity of legal practice (Intestate Estate of Jose Uy v.
Maghari IIL A.C. No. 10525, September 1, 2015).
3. All practicing members of the bar are also required
to indicate in all pleadings filed before the courts or quasi­
judicial bodies, the number and date of issue of their
Mandatory Continuing Legal Education (MCLE) Certificate
of Compliance0 or Certificate of Exemption. Failure to disclose
the required information would cause the dismissal of the
case and the expunction of the . pleadings from the records
(Bar Matter No. 1922, En Banc Resolution, June 3, 2008). Per
En Banc Resolution of the Supreme Court dated September
2, 2008, the effectivity date of the implementation of this rule
was moved from August 25, 2008 to January 1, 2009.
. The inclusion of information regarding compliance with,
or exemption from, the MCLE seeks to ensure that legal
practice is reserved only for those who have complied with
the recognized mechanism for "keeping abreast with law and
jurisprudence, maintaining the ethics of the profession, and
enhancing the standards of the practice of law" (Intestate
Estate of Jose Uy v. Maghari III, supra).

288 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Certification against forum shopping (Bar 2000; 2009; 2010;
2014)
l. The certification against forum shopping is a sworn
statement in which the plaintiff or principal party certifies in
a complaint or initiatory_ pleading to the following matters:
(a) that he h�s not commenced anyj1ction 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 therein;
. (b) that if there is such other pending action or
claim, a complete statement of the present status thereof;
and
(c) that if he should thereafter learn that the same
or similar action or claim has been filed or is pending,
he shall report that fact within five days therefrom to
the court wherein his aforesaid complaint or initiatory
pleading has been filed (Sec. 5, Rule 7, Rules of Court; see
also Asia United Bank v. Goodland Company, Inc., 637
SCRA 691, 696).
2. 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 (Societe Des Produits, Nestle,
S.A. v. Puregold Price Club, Inc., G.R. No. 217194, September
6, 2017; citations of the Court, omitted).
Purpose of the certification
-
. .
l. 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 (Uy v. Court of Appeals, G.R. No. 173186, September
16, 2015). The purpose of prohibiting forum shopping is also
to prevent contradictory decisions of two or more courts on the
same controversy (Belo Medical Group, Inc. v. Santos, G.R.
No. 185894, August 30, 2017).
CHAPTER IV 289
PLEADINGS AND MOTIONS
2. The rationale against forum shopping is that a
party should not be allowed to pursue simultaneous remedies
in two different fora. Filing multiple 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 (Huibonhoa v. Concepcion, 497
'SCRA 562, 569-570; H._eirs of Cesar Marasigqn . v. Marasigah;.
548 SCRA 409, 435). .
Meaning of forum shopping
1. 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 (Ortigas & Company Limited Partnership v. Velasco, G.R.
No. 109645, January 21, 2015; Tomas v. Criminal Investigation
and Detection Group, G.R. No. 208090, November 9, 2016;
See also Intramuros Administration v. Offshore Construction
Development Corporation, G.R. No. 196795, March 7, 2018).
2. Specifically, there is forum shopping where there
exist: (a) identity of · parties, or at least such parties as
represent the same interests in both .actions; (b) identity of
rights asserted and relief prayed for, the relief being founded
on the same facts; and (c) 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 (Young v. Spouses Sy, 503
SCRA 151, 166; Commissioner of Customs v. filipinas Shell
Petroleum Corporation, G.R. No. 205002, April 20, 2016;
See also Grace Park International Corporation v. East West
Banking Corporation, G.R. No. 210606, July 27, 2016; Tomas
v. Criminal Investigation and Detection Group, G.R. No.
208090, November 9, 2016; Spouses Reyes v. Spouses Chung,
G.R. No. 228112, September 13, 2017; City Government of
Baguio v. Masweng, G.R. No. 195905, July 4, 2018; Republic
v. Sereno, G.R. No. 237428, May 11, 2018).
 290 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
3. · The act of splitting a single cause of action is a mode
of forum shopping (See also Lajave Agricultural Management
and Development Enterprises, Inc. v. Spouses Javellana, G.R.
No. 223785, November 7, 2018).
The certification is not a jurisdictional requirement
Th,e certificationds mand;ltory under S¢t. 5 of Rule 7 but
· not jurisdictional since jurisdiction over the subje�t of the
. action is conferred by law (Robert Development Corporation v.
Quitain, 315 SCRA 150, 160). The absence of the certification
would not affect the jurisdiction of the court over the action:
Three ways of committing forum shopping
The Supreme Court enumerated the ways by which
forum shopping may be committed, thus:
(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 jud�cata); and
(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) (Commissioner of Customs v.
Pilipinas Shell Petroleum Corporation, G.R. No. 205002,
April 20, 2016,- Republic v. Bolante, G.R. No. 190357,
April 17, 2017).
Determination of the existence of forum shopping
1. To determine whether a party violated the rule
against forum shopping, the most important question to
ask is whether the elements of litis pendentia are present or
whether a final judgment in one case will result to resjudicata
CHAPTER IV 291
PLEADINGS AND MOTIONS
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
. (Huibonhoa v. Concepcion, 497 SCRA 562, 56.9-570; for further
readings, see Pulumbarit v. · Court of Appeals, G.R. Nos.
153745-46, 'October 14, 2015; Se€(also Lajave Agricult4ral
Management and Development Enterprises, Inc. V. Spouses
Javellana, G.R. No. 223785, November 7, 2018).
2. 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 (Huibonhoa v. Concepcion, ibid.).
3. Where the reliefs sought in two courts involving
the same parties is to restrain a government official from
implementing the same order, there is forum shoppin
because there is identity of reliefs (Montes v. Court of Appeal
489 SCRA 432, 440).
4. The filing of six appeals, complaints or petitions for
the same purpose of frustrating the execution of a judgment
is a clear case of forum shopping (Millare v. Montero, A. C. No.
3283, Ju�y 19, 1995).
5. To file an ordinary appeal and petiti�n for certiorari
with the Court of Appeals is to engage in forum shopping.
When the petitioner commenced the appeal, only four months
had elapsed prior to her filing of the Petition for Certiorari
under Rule 65 with the Court of Appeals. The elements of
litis pendentia are present between the two suits. Botli. suits
are founded on exactly the same facts, and refer to the same
subject matter - the RTC orders which dismissed the civil
case for failure to prosecute. In both cases, the petitioner is
seeking the reversal of the RTC orders. The parties, the rights
asserted, the issues professed, and the reliefs prayed for, are
all the same. It is evident that the judgment of one forum may
amount to res judicata in the other (Young v. Spouses Sy, 503
SCRA 151, 166).

292 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Where a party's petition for certiorari and subsequent
appeal seek to achieve one and the same purpose, there is
forum shopping which is a sufficient ground for the dismissal
of the certiorari petition (Espiritu v. Tankiansee, 651 SCRA
706, 707).
6. In a case, the plaintiff filed ,an unlawful detainer);
ca�e against the: defendant based on .Jfolations: of the terms :·
of the lease contract which, at that time, had not yet expired.
During the pendency of the case and after the lease contract
had expired, a second case for unlawful detainer was filed by
the same plaintiff against the same defendant. The second
complaint disclosed the existence of the first case. The second
suit was based on the expiration of the lease contract. The
Court found no forum shopping under the facts since the
suits were based on different grounds. At the time the first
complaint was filed, the ground of expiration of the lease
was not yet available (Umale v. Canoga Park Development
Corporation, 654 SCRA 155, 161-163).
7. There is no forum shopping in a case where the
subsequent purchaser of foreclosed property filed a petition
for issuance of a writ of possession after previously filing an
action for ejectment against the same defendant where the
latter action was dismissed for being the wrong remedy and the
appeal from its dismissal having been withdrawn. The;e is rio
identity or similarity of actions between the two proceedings,
the petition being just an incident to the transfer of title.
The Court also explained that having realized the erroneous
resort to the wrong remedy, an error having been committed
in good faith, the raising 9f a matter to the correct forum by
the petitioner does not constitute forum shopping. Quoting
the Court of Appeals with approval, the Court reiterated:
"x xx Raising a matter to the correct forum, employing
the wrong mode or remedy, and then later resorting to the
correct one, does not make an instance of forum shopping
xx x" (Spouses Reyes u. Spouses Chung, G.R. No. 228112,
September 13, 2017).
CHAPTER IV 293
PLEADINGS AND MOTIONS
8. There may be situations where a landowner, whose
land is subject to land reform, has a pending case before the
Department of Agrarian Reform (DAR) for determination of
just compensation. Still, he files a petition before the RTC,
designated as a Special Agrarian Court (SAC), for the same
purpose. Such recourse is not strictly a case of forum shoppingi
since the administrative determination is not bindtng on the
Specil'll Agrarian Court (See;Land Bank of the Phiiippines v.
Dalauta, G.R.. No. 190004, August 8, 2017).
There is 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 crux of
the controversy, a quo warranto petition, is the determination
of whether or not the respondent legally holds the position.
the other hand, impeachment is for respondent's prosecuti n ÷
for certain impeachable offenses. Simply put, while th­e
respondent's title to hold a public office is the issue in quo
warranto petition, impeachment necessarily presupposes that
the respondent legally holds the public office. The only issue
· in impeachment is whether or not the respondent committed
impeachable offenses to warrant removal from office.
The reliefs sought are different. The respondent in a quo
warranto proceeding shall be adjudged to cease from holding
a public office, which he/she is ineligible to hold. A conviction
for the charges of impeachable offenses shall result to the
removal of the respondent from the public office that he/she_is
legally holding. It is not legally possible to impeach or remove
a person from an office that he/she, in the first place, does not
and cannot legally hold or occupy.
Also, there can be no forum shopping because the
impeachment proceedings before the House is not the
impeachment case proper, since it is only a determination
of probable cause. The process before the House is merely

294 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
inquisitorial and is merely a means of discovering if a person
may be reasonably charged with a crime (Republic v. Sereno,
G.R. No. 237428, May 11, 2018).
Who executes the certification against forum shopping (Bar
2000); exception
1. It isi,the plaintiff or prin¢ipal party who execuJes
··the certification under oath (Sec. 5,· Rule 7, Rules of Coui't).
Jurisprudence also affirms the rule (Agustin v. Cruz-Herrera,
G.R. No. 174564, February 2, 2014; Department of Public
Works and Highways v. CMC/Monark/Pacific/Hi-Tri Joint
Venture, G.R. No. 179732, September 13, 2017).
It must be executed by the party-pleader, not by his
counsel. 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 (Uy v.
-
Court of Appeals, G.R. No. 173186, September 16, 2015; Leriou
v. Longa, G.R. No. 203923, October 8, 2018).
Reason: It is the petitioner and not the counsel who is
in the best position to know whether he or it actually filed or
caused the filing of a petition. A certification signed by counsel
is a defective certification and a valid cause for dismissal (Far
Eastern Shipping Company v. Court of Appeals, 297 SCRA 30,
53; Anderson v. Ho, 688 SCRA 8, 17, January 7, 2013). This is
the general rule and the prevailing rule.
2. In one case, Go v. Rico, 488 SCRA 137, 145-
146, petitioners admitted that neither of them signed the
certification against forum shopping. Only their counsel
did. The Court, in this case, emphatically stressed that a
certification by counsel, and not by the principal party himself,
is no certification at all. The reason for requiring that it must
be signed by the principal party himself is that he has actual
knowledge whether he has initiated similar action/s in other
courts, agencies or tribunals. Their lawyer's explanation that
they were out-of-town at the time their petition was filed with
the Court of Appeals was considered bereft of basis. That
explanation was an afterthought as it was not alleged by
counsel in her certification against forum shopping.
CHAPTER IV 295
PLEADINGS AND MOTIONS
Signing the certification �hen the plaintiff is a juridical entity
1. A juridical entity, unlike a natural person, can
only perform physical acts through properly delegated
individuals. A corporation can exercise its power to sue only
upon authority of its board of directors or trustees, the latt� r
being the body which exercises corporate powers (Sec. 23 in
r��ation to Sec. 36, Corp9,ration yode of the Ph,�[ippin�s). The
÷
corporate-officers and agents, therefore, cannot exerc�pe any
corporate power pertaining to the corporation without any
authority from the board of directors. Corollarily, in order f�r a
person to represent a corporation in a suit, a boa�d resolut10n
authorizing the former to represent the latter 1s necessary
(Meatworld International, Inc. v. Hechanova, G.R. No. 208053,
October 18, 2017). Therefore, a board resolution authorizing
a corporate officer to execute the certification against for� m
shopping is a necessary requirement under the Rules (Societe
Des Produits Nestle, S.A. v. Puregold Price Club, Inc., G.R.
No. 217194, September 6, 2017); otherwise, the complaint
will have to be dismissed (Cosco Philippines Shipping, Inc.
v. Kemper Insurance Company, G.R. No. 179488, April 23,
2012).
A certification signed by a person who was not authorized
by the board of directors renders a petiti� n su�ject to
dismissal. The exercise of corporate powers mcludmg the
power to sue is lodged with the board of directors which acts
_
as · a body representing the stockholders. For corporat10ns,
the authorized representative to sign the certification against
forum shopping must be selected or authorized collectively
by the board of directors (Societe des Produits Nestle, S.A.
v. Puregold Price Club, Inc., G.R. No. 217194, September 6,
2017).
2. The above rule is perfectly consistent with the
fundamental tenets of corporation law. However, the rule has
been liberally interpreted by the Court in several cases.
The Court itself declared that "In several instances, the
Court has considered a Secretary's Certificate sufficient proof
of authority for a person named to represent a corporation
in a suit" (See Meatworld International, Inc. v. Hechanova,
 296 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
G.R. No. 208053, October 18, 2017). In a more liberal
interpretation of the rule, the Court, in the earlier case of
Cagayan Valley Drug Corporation v. Commissioner of Internal
Revenue, G.R. No. 151413, February 13, 2008, ruled that the
following officials or employees of a company can sign the
verification and certification against forum shopping without
need of a :board resolution: (a) ,Chairperson of the �oard
of Directofs, (b) President of the corpbration, (c) G�neral
Manager or Acting General Manager, (d) Personnel O�ficer,
and (e) Employment Specialist in a labor case. Accord�ngly,
the rationale behind this rule is that the officers mentioned
are in a position to verify the truthfulness and correctness of
the allegations in the petition (Also cited in Yap v. Siao, G.R.
No. 212493, June 1, 2016). The same case, however, clarified
that appending the board resolution to the complaint or
petition is the better procedure to obviate_ any questi�n on _the
authority of the signatory to the verification and certificat10n.
-
The required submission of the board resolution is grou�ded
on the basic precept that corporate powers are exercised
by the board of directors and not solely by an o�ficer of the
corporation. Hence, the power to sue and be sued �n any cou�t
or quasi-judicial tribunal is necessarily lodged with the said
board (See also South Cotabato Communications Corporation
v. Sto. Tomas, G.R. No. 173326, December 15, 2010).
. 3. A more recent pronoun,cement of the Supreme Court
conceded that a corporation exercises its powers and transacts
its business through its board of directors or trustees.
Accordingly, unless authorized by the board of direct�rs
or trustees, corporate officers and agents cannot exercise
any corporate power pertaining to the corporation. A boa�d
resolution authorizing the corporate officers and agents 1s,
therefore, required. The Court, in the same case, using a more
liberal approach, declared that jurisprudence has allowed the
corporate president to sign the verification and certification of
non-forum shopping even without a board resolution because
the said officer is presumed to have sufficient knowledge to
swear to the truth of the allegations stated in the complaint
or petition (Colegio Medico-Farmaceutico De Filipinas, Inc. v.
Lim, G.R. No. 212034, July 2, 2018).
CHAPTER IV 297
PLEADINGS AND MOTIONS
4. A liberal interpretation of the rule was made in
another case, where the Court allowed the signature of an
academic dean in a case involving a faculty member in his
college. While the Court recognized that as a general rule,
the Board of Directors or Board of Trustees of a corporation
must authorize the person who signs the verification and
certification against:. forum· shopping, such authorization,
ruledthe Court is riot necessary when it is self-evident that
the signatory id in a position to verify the truthfulness and
correctness of the allegations in the petition (University of the
East v. Pepanio, G.R. No. 193897, January 23, 2013).
5. Also, even a belated submission of the written
authority of the board was found to be a substantial compliance
with Sec. 5 of Rule 7 of the Rules of Court especially when
the acts of the officer in filing the petition were also ratified
by the board (Swedish Match Philippines v. The Treasurer
of the City of Manila, G.R. No. 181277, July 3, 2013).
Procedural lapses, in relation to the certification against
forum shopping, have, in some cases, been disregarded by
the Court for compelling reasons, such as the prima facie
merits of the petition. Accordingly, the rules on forum
shopping are not to be interpreted with "absolute literalness"
as to subvert the ultimate purpose of achieving substantial
justice as expeditiously as possible (See Steamship Mutual
Underwriting Association [Bermuda] v. Sulpicio Lines, Inc.,
· G.R. No. 196072, Septemb.er 20, 2017).
6. Despite the liberal interpretation of the rule in
some cases, one must not lose sight of the general rule
consistent with the general principles of corporate law. "In
case the petitioner is a private corporation, the verification
and certification may be signed,. for and in behalf of this
corporation, by a specifically authorized person, including its
retained counsel, who has personal knowledge of the facts
required to be established by the documents. The reason is
that: A corporation x x x has no powers except those expressly
conferred on it by the Corporation Code and those that
are implied by or are incidental to its existence. In turn, a
corporation exercises corporate powers, through its board
of directors and/or its duly authorized officers and agents.
 CML PROCEDURE,VOLUMEI
298
THE BAR LEC TURES SERIES
Physical acts, like the signing of documents can be performed
only by natural persons duly authorized for the purpose by
corporate by laws or by a specific act of the board of directors"
(Steamship Mutual Underwriting Association {Bermuda] u.
Sulpicio Lines, Inc., C.R. No. 196072, September 20, 2017).
Rule if there are several plaintiffs or petitioners; ;.exception
· -:;
{Bar 2·016) · ·· · ,,
L The certification against forum shopping0 must be
signed by0 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 justifiable circumstances, however, as
when the plaintiffs or petitioners 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 (Vda.
De Formoso v. Philippine National Bank, 650 SCRA 35, 44-45;
Basan v. Coca-Coca Bottlers Philippines, C.R. Nos. 174365-
66, February 4, 2015; For further readings, see Yap u. Siao,
G.R. No. 212493, June 1, 2016). Bar 2016
In a case involving co-owners of property where the
said property is the subject matter of the suit, the failure of
the other co-owners to sign the verification and certificate of
forum shopping is not fatal, as the signing by only one or some
of them constitutes substantial compliance of the rule (Gloria
Builders Savings and Loan Association, Inc., C.R. No. 202324,
June 4, 2018).
o
2. The above rule will not be applied if dishonesty
attended the signing of the certification 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 (Heirs of Francisco Retuya v. Co�rt of Appeals,
647 SCRA 299, 309-310).
Pleadings requiring a certification against forum shopping
1. The certification against forum shopping applies to
the complaint and other initiatory pleadings asserting a claim
for relief (Sec. 5, Rule 7, Rules of Court). These initiatory
pleadings include not only the original complaint but also
CH APTER IV 299
PLEADI NGS AND MOTIONS
a permissive counterclaim, cross-claim, third (fourth, etc.)­
party complaint, complaint-in-intervention, petition or any
application in which a party asserts his claim for relief.
It bears stressing that the Rule distinctly provides
that the required certification against forum shopping is
intended to cover an initiatory pleading, meaning an incipient
application of a/party asserting a clairrrfor :teli�f If the answer
with a counterclaim is filed merely· to counter petitioner�•·
complaint, andis a claim for relief that is derived only from,
or is necessarily connected with, the main action or complaint,
it is not an initiatory pleading (Spouses Carpio v. Rural Bank
of Sta. '.f'omas, '.{3atangas, 489 $CRA 492, 497; See also Torres
u. De Leon, C.R. No. 199440, January 18, 2016).
2. 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
(Torres v. De Leon, ibid.).
The rule does not require a certification against forum
shopping for a compulsory counterclaim because it cannot
be the subject of a separate and independent adjudication,
as when the counterclaim is f�r damages, moral, exemplary
or attorney's fees, by reason of the alleged malicious and
unfounded suit filed against the defendant. It is, therefore,
not an-initiatory pleading (Santo Tomas University v. Surla,
294 SCRA 382, 392-393).
An ex parte petition for the issuance of a writ of possession
is -not an initiatory pleading. Although denominated as a
petition, it does not aim to initiate a litigation but is an incident
to or a consequence of certain proceedings like foreclosure
cases (De Guzman v. Chico, C.R. No. 195445, December 2016).
Applicability to special civil actions
The Court held that the rule requiring a certification
a,gainst forum shopping applies as well to special civil actions
300 CIVIL PROCEDURE, V OLUME I
THE BAR LECTURES SERIES
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. Such specific rule, for example, appears
under Rule 46, Sec. 3 which requires that every petition for
certiorari be accompanied by a sworn certification of non­
forum shopping (Wacnang v. COMELEC, 569 SCRA 799, 809;
Presidential Commission on Good Government [PCGGJ v.
Dumaycis, G.R. No. 209447, August 11, 2015).'·
Effects of non-compliance with the rule on certification
against forum shopping (Bar 1996)
1. 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 (De Leon v. Chu, G.R.
No. 186522, September 2, 2015). The rule requires that the
dismissal be upon motion and after hearing (Sec. 5, Rule 7,
Rules of Court).
2. 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
(Sec. 5, Rule 7, Rule_s of Court). Hence, where the dismissal
is silent as to the character of the dismissal, the dismissal
is presumed to be without prejudice to the refiling of the
complaint.
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
one without prejudice? Answer: He cannot appeal from the
order. This is because an order dismissing an action without
prejudice is, as a rule, not appealable. The remedy provided
for under Sec. 1 of Rule 41 is to avail of the appropriate special
civil action under Rule 65 (Sec. l{g], Rule 41, as amended,
Rules of Court).
3. 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. A complaint may
be dismissed for forum shopping even if there is a certification
C HAPTERIV 301
PLEADINGS AND MOTIONS
attached and, conversely, a complaint may be dismissed for
lack of the required certification even if the party has not
committed forum shopping. Compliance with the certification
against forum shopping is separate from, and independent of,
the avoidance of forum shopping itself (Juaban v. Espina, 548
. SCRA 588, 605-606).
The geHeral ru�e is that non.!dompliance or a defecf in
the certification is n'i:>t curable by its subsequent submission
or correction. However, there were cases when the Court
exercised leniency and relaxed the rules on the ground of
substantial compliance, the presence of special circumstances
or compelling reasons (Uy v. Court of Appeals, G.R. No.
173186, September 16, 2015; Mathaeus u. Spouses Medequiso,
G.R. No. 196651, February 3, 2016).
If there are objections relating to noncompliance with the
verification and certification of non-forum shopping, the same
should be raised in the proceedings below, and not for the first
time on appeal (GSIS Family Bank-Thrift Bank, Inc. v. BPI
Family Bank, G.R. No. 175278, September 23, 2015).
Effect of willful and deliberate forum shopping; dismissal of
all pending claims
1. 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 (Sec. 5, Rule 7, Rules of
Court).
2. Jurisprudence holds that if the forum sbopping is not
considered willful and deliberate, the subsequent case shall
be dismissed without prejudice on the ground of either litis
pendentia or res judicata. However, if the forum shopping is
willful and deliberate, both (or all, if there are more than two)
actions shall be dismissed with prejudice (Phil. Pharmawealth,
Inc. v. Pfizer, Inc., 635 SCRA 140, 161). For instance, if one
petition is pending before the Supreme Court and the other
302 CML PROCEDURE, VOLUMEI
T HE BAR LECTURES SERIES
case is pending in a lower court, both cases will be summarily
dismissed once there is a finding of forum shopping. This is so
because the twin dismissal is the punitive measure to those
who trifle with the orderly administration of justice (Fontana
Development Corporation v. Vukasinovic, G.R. No. 222424,
September 21, 2016).
Effect of submiss'l<>n of a false certification
It may happen that the pleading has been filed with
the required certification against forum shopping but the
allegations therein or the matters certified to therein are
false. Under the Rul13s, the submission of a false certification
shall constitute indirect contempt of court without prejudice to
the corresponding administrative and criminal sanctions (Sec.
5, Rule 7, Rules of Court).
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 (Sec. 5, Rule 7, Rules
of Court; Oliveros v. Sison, 548 SCRA 265, 271). Hence, such
failure shall constitute indirect contempt of court without
prejudice to the corresponding sanctions (Sec. 5, Rule 7, Rules
of Court). The criminal sanction would apply to the submission
of a false certification.
Summary of guidelines respecting non-compliance with the
requirements of or submission of defective, verification and
certification against forum shopping
XXX
"x x x For the guidance of the bench and bar, the
Court restates in capsule form the jurisprudential
pronouncements already reflected above respecting non­
compliance with the requirements on, 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
CHAPT ERIV 303
PLEADINGS AND MOTIONS
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 :�ttending circumstance� 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, O
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 b� 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
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 only one of them in the certifiGation
against 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
304 CIVIL PROCEDURE, VOLUME I
THEBAR LECTURES SERIES
behalf' (Vda. De Formoso u. Philippine National
Bank, 650 SCRA 35, 44-45, citing Altres u. Empleo,
573 SCRA 583; Fuji Television Network, Inc. u.
Espiritu, G.R. Nos. 204944-45, December 3, 2014;
Bureau of Customs u. Deuanadera, G.R. No. 193253,
September 8, 2015; Bacolor u. VL MacabaliMemorial
Hospitq,l, Inc., G.R. No. 204325,;April 18, 2016).
: •\:. \. �!i.
. C. Allegations in Pleadings
Allegations of conditions precedent
1. Common usage refers to conditions precedent as
matters which must be complied with before a cause of action
arises. When a claim is subject to a condition precedent, its
compliance or performance is not sufficient. The compliance
of the same must be alleged in the complaint or petition.
2. The following are examples of conditions precedent:
(a) A tender of payment is required before making
a consignation (Art. 1256, Civil Code of the Philippines).
(b) Exhaustion of administrative remedies is
required in certain cases before resorting to judicial
action (Lopez u. City of Manila, 303 SCRA 448; Dy v.
Court of Appeals, 304 SCRA 331).
(c) Priorresort to barangay conciliation proceedings
is necessary in certain cases (Chapter 7, Title I, Book IIL
Local Government Code of 1991).
(d) Earnest efforts toward a compromise must be
undertaken when the suit is between members of the
same family and if ne efforts were in fact made, the
case must be dismissed (Art. 151, Family Code of the
Philippines). Bar 2011
•
(e) Arbitration may be a condition precedent when
the contract between the parties provides for arbitration
first before recourse is made to judicial remedies.
CHAPTER IV 305
PLEADINGS AND MOTIONS
Effect of failure to comply with a condition precedent
The 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 with (Sec.
l[j], Rule 16, Rules of Court). To reiterate, such compliance
must be alleged
; in the pleading.
'\,:· 1 : t·
: :
·_1.
.
_
Pleading a judgment
In pleading a judgment or decision of a domestic or
foreign court, judicial or quasi-judicial tribunal, or a board or
officer, it is sufficient to aver the judgment or decision. There
is no need to allege matters showing the jurisdiction to render
the judgment or decision (Sec. 6, Rule 8, Rules of Court).
The above 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 exercis
of jurisdiction" (Sec. 3[n], Rule 131; Rules of Court). That
jurisdiction is presumed is, however, only a disputable, not a
conclusive presumption (Sec. 3{n], Rule 131, Rules of Court).
Hence, not being a conclusive presumption, a defending party
is allowed to file a motion to dismiss for lack of jurisdiction
over the subject matter of the claim (Sec. l[b], Rule 16, Rules
of Court). Even the court, on its own motion, is authorized t
dismiss the claim on the same ground (Sec. 1, Rule 9, Rules of
Court).
Pleading an official document or act
In pleading an official document, it is sufficient to aver
that the document was issued in compliance with law. With
respect to an official act, it is, likewise, sufficient to allege that
the act was done also in compliance with law (Sec. 9, Rule 8,
Rules of Court). Note that under the Rules on Evidence, "the
written official acts, or records of official acts, of the sovereign
authority, official bodies and tribunals, and public officers,
whether of the Philippines or of a foreign country" are, for
the purpose of their presentation in evidence, considered
public documents {Sec. 19[a}, Rule 132, Rules of Court). Publi
-
-
 306 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
documents are admissible in evidence without further proof of
their due execution and genuineness, and has, in their favor,
the presumption of regularity (Pen Development Corporation
v. Martinez Leyba, Inc., G.R. No. 211845, August 9, 2017).
. Pleading ca�acity to sue or be su�d
Facts sl1owing ,the capacity ofa party' to' sue or be shed
must be averred. If a party is suing or sued in a representative
capacity, his authority must also be averred. If a party is an
organized association of persons, its legal existence must
likewise be averred (Sec. 4, Rule 8, Rules of Court). For
instance, if PP• is suing as an agent of 00, his being an agent
has to be alleged; otherwise, he shall be deemed to be suing
in his personal capacity. If it is a corporation that is suing, its
having been legally organized in accordance with law has to
be alleged in order to leave no doubt as to its legal existence.
Pleading fraud, mistake or condition of the mind
1. When making averments of fraud or mistake,
the circumstances constituting such fraud or mistake must
be stated with particularity (Sec. 5, Rule 8, Rules of Court;
Villalon u. Lirio, G.R. No. 183869, August 3, 2015).
The provision clearly suggests that it is not enough,
therefore, for the complaint to allege that the plaintiff was
defrauded by the defendant. Under this provision, the
complaint must state with particularity the fraudulent acts of
the adverse party. These particulars which would necessarily
include the specific acts of fraud committed against the
plaintiff 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, each of
which has its own legal effects (See Arts. 1170, 1330, 1390,
1344, 1359, 1381 of the Civil Code of the Philippines). The
same is true with acts constituting mistake (See Arts. 1331-
1334).
The mere failure, for example, to comply with one's
obligation to pay the storage fees agreed upon, does not
CHAPTER IV 307
PLEADINGS AND MOTIONS
necessarily amount to fraud, absent any showing that such
failure was due to insidious machinations and intent on
his part to defraud the other party of the amount due it
(Watercraft Venture Corporation v. Wolfe, G.R. No. 181721,
September 2015).
. 2. · Malice, intent, knowledge or other conditions of
/'the mirid of a perso:n'.:"tnay b�;averred gener.'ally (Sec. 5, Rule
8, Rules of Court; Villalon u. Lirio, supra). Unlik� in fraud
· or mistake, they need not be stated with particularity. The
rule is borne out of human experience. It is difficult to state
the particulars constituting these matters. Hence, a general
averment is sufficient.
Pleading alternative causes of actions or defenses
1. Under Sec. 2 of Rule 8, 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.
2. The subject provision recognizes that the liability of
the defendant may possibly be based on either one of two or
more possible causes of action. The plaintiff may, for exampL,
believe that the liability of the carrier may be based either
on a breach of contract of carriage or quasi-delict, but he may
not be certain which of the causes of action would squarely
fit the set of facts alleged in the complaint, although he is
certain that he is entitled to relief. He may, therefore, state
his causes of action in the alternative. This provision in effect,
also relieves a party from being compelled to choose only one
cause of action.
The landmark case of La Mallorca v. Court of Appeals,
17 SCRA 739, 744-745, illustrates this rule particularly well.
Here, the plaintiffs were allowed to sue based upon a quasi­
delict theory and in the alternative, upon a breach of contract,
where the death of their child occurred when they were no
longer on board the bus of the common carrier but at the time
the father was in the process ofretrieving the family's personal
belongings from the bus. Although, ultimately, the case was

308 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
ruled to be a breach of contract of carriage, the procedural
device of pleading alternative causes of action was clearly
applied in this case.
3. The same provision has affinity to the rule (Sec. 13,
Rule 3, Rules of .Court) which authorizes suing two or more
defendants in the alternative. For instance, the plaintiff
insuraride company, which . pi'.iid for .the loss of th'� goods
insured, may sue, in the alteriiative, the shipping company
that transported the goods and the warehouse company that
stored the goods if the plaintiff is uncertain which between
the defendants is responsible for the loss.
In Hanover Insurance Company v. Port Service and
Manila Railroad Company, 19 SCRA 69, 73, the Court
allowed the alternative suit, against the arrastre operator
and the owners and agents of the carrying vessels, filed by
the insurance company which paid the consignee for the lost
merchandise. The joinder of the two causes of action against
the alternative defendants, according to the Court, avoids
unnecessary multiplicity of suits and, without sacrificing
any substantial rights of the parties, removes the undue
disadvantage in which plaintiff would be placed by having to
prove its case in different courts by means of evidence that is
within the exclusive knowledge of said defendants.
4. Pleading alternative causes of· action normally
leads to inconsistent claims. For instance, the elements of a
cause of action based on a contractual theory are inconsistent
with those of a cause of action based on a quasi-delict. As
previously discussed, a suit based on a breach of contract
of carriage, for example, does not require an allegation and
proof of negligence because it is not an element of a breach
of contract suit (Calalas v. Court of Appeals, 332 SCRA 356;
F'GU Insurance Corporation v. G.P. Sarmiento Trucking
Corporation, 386 SCRA 312). On the other hand, negligence,
as a rule, is an essential element of a suit based on a quasi­
delict (Art. 2176, Civil Code of the Philippines).
Under Sec. 2 o:f Rule 8, this situation is permissible as
long as the allegations pleaded within a particular cause of
CHAPTER IV 309
PLEADINGS AND MOTIONS
/
action are consistent with the cause of action relied upon as
an alternative. Thus, if the alternative cause of action is a
breach of contract, the allegations therein must support the
facts constituting the breach of the contract.
5. Under the same provision (Sec. 2,. Rule 8), the
pleading which. contains alternative causes of action is
not made insufficient by the insuffici:ency of �one or more of
the alternative statem�nts as long as one of them, if made
independently, would be sufficient. This means that the rule
does not require that all of the alternative causes of action be
sufficient for the plaintiff to be entitled to relief. It is enough
that one of them, if made independently, would be sufficient
to support a cause of action.
The relevant rule provides: "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 th
alternative statements" (Sec. 2, Rule 8, Rules of Court).
6. Sec. 2 of Rule 8 authorizes not only alternative caus
of action. The rule, likewise, permits alternative defens
Under said rule, a party may set forth two or more defens
alternatively or hypothetically. Thus, a defendant may assert
the defense of payment ,of the debt or prescription thereof.
The rule allowing alternative defenses is consistent
with even the Omnibus Motion Rule which requires that all
motions attacking a pleading shall include all objections ther
available, and all objections not so included shall be deemed
waived (Sec. 8, Rule 15, Rules of Court).
Pleading actionable documents (Bar ·1991; 2004; 2005; 2017)
1. A substantial number of cases reaching the court
show that the plaintiffs cause of action or the defendant's
defense is based upon a written instrument or document.
The document used in such cases is what is commonly
termed an "actionable document" which, in current usage,
is an instrument or document on which an action or defense
310 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
is founded (Metropolitan Bank and Trust Company v. Ley
Construction and Development Corporation, G.R. No. 185590,
December 3, 2014).
For example, in an action for collection of a sum of
money, the actionable document would be the promissory note
exec;uted by the defendant _in favor of the plaintiff.In an action
for'foreclosure of a mortgage, the actionable docrt'ment would
be the deed of mortgage. On the other hand, if the defendant
alleges that the debt has been paid, the receipt of payment
issued by the plaintiff would be the actionable document.
-
2. Whenever an actionable document is the basis of
a pleading, the rule specifically directs the pleader to: (a)
set forth in the pleading the substance of the instrument or
document, and attach the original or the copy of the document
to the pleading as an exhibit and which shall form part of the
pleading; or (b) with like effect, to set forth in the pleading
said copy of the instrument or document (Sec. 7, Rule 8, Rules
of Court; Fernando Medical Enterprises, Inc. v. Wesleyan
University Philippines, Inc., G.R. No. 207970, January 20,
2016). This manner of pleading a document applies only to an
-
actionable document, i.e., one which is the basis of an action or
a defense. Hence, if the document does not have the character
of an actionable document, it need not be pleaded strictly in
the manner prescribed by Sec. 7 of Rulf 8.
Mow to contest an actionable document; oath required (Bar
20'i O; 2017)
1. When the action is founded upon a document pleaded
in the manner required by Sec. 7 of Rule 8, the party, who
has no infent of admitting the genuineness and-due execution
of the document, must contest the same by (a) specifically
denying the genuineness and due execution of the document
under oath; and (b) setting forth what he claims to be the facts
(Sec. 8, Rule 8, Rules of Court).
2. A mere specific denial of the actionable document
is insufficient. The denial must be coupled with an oath. In
current usage, this means that the denial must be verified.
-
CHAPTER IV 311
PLEADINGS AND MOTIONS
The absence of an oath will result in the implied admission of
the due execution and genuineness of the document (Sec. 8,
Rule 8, Rules of Court).
For instance, in a complaint for a sum of money based
5 · on a promissory note duly pleaded in the complaint by the
plaintiff in accordance with Sec. 7 of Rule 8, the defendant
will be deerti�d to l:p�ve admitted 'the genuineness and due
execution of the promissory note even if he makes a specific
denial of such matters in his answer if the denial is not under
oath. Hence, during the trial, the defendant will not be allowed
to prove the forgery of the promissory note over the objection
of the plaintiff, its genuineness and due execution having
been previously admitted due to his failure to make a denial
under oath. Note also that the oath is necessary only when the
pleader questions and specifically denies the genuineness and
due execution of the document. Such oath is not required if
what he denies is the truth of a particular part or stipulation
in the document.
When an oath is not required (Bar '1987; 2017)
The requirement of a specific denial under oath will
t1
not apply in either of the following cases, even if it is the
genuineness and due execution of the documen t is soughtt t
to
be denied.
(a) When the adverse party does not appear to be a
party to the instrument, or
(b) When compliance with an order for an inspection
of the original instrument is refused (Sec. 8, Rule 8, Rules
of Court).
Thus, if a son is sued as a substitute party under a
document signed by his deceased father, a specific denial
made by the son is sufficient without the same being under
oath because the son is not a party to the document. Also, if
the court grants a motion filed by a party for the inspection of
the original document in the possession of the adverse party,
and the latter refuses to comply with the order, the former
may deny the genuineness of the document without an oath.
312 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Meaning of admission
By the admission of the genuineness and due execution
of an instrument is meant that the party whose. signature it
bears admits 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 fj.gures exactly as set oµt in the pleadings
of the party relying}upon it; that the docuili.ent wli.§ delivered;
and that any formal requisites required by law,such as a
seal, acknowledgment, or revenue stamp, which it lacks, are
waived by him (Hibberd u. Rohde and Mcmillian, 32 Phil. 476,
478-479).
Defenses cut off by the admission of genuineness and due
e}(ecution
When a party is deemed to have admitted the genuineness
and due execution of an actionable document, defenses that
are implied from said admission are necessarily waived like
the defenses of forgery of the document, lack of authority
to execute the document, that the party charged signed the
document in some other capacity than that alleged in the
pleading, or that the document was never delivered (Hibberd
to
u. Rohde and McMillian, ibid.). Also cut off by the admission
is the defense that the document was not in words and figures
as set out in the pleadings (Imperial Textile Mills v. Court of
Appeals, 183 SCRA 584).
Defenses not cut off by the admission of genuineness and
due execution (Bar 2017)
The following defenses, among others, may be �nterposed
despite the implied admission of the genuineness 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 genuineness and due execution of the
instrument and are not, therefore, barred (See also Hibberd
u. Rohde and MclVIillian, supra, 479-480). It is submitted that
prescription, release, waiver, statute of frauds, estoppel and
CHAPTER IV 313
PLEADINGS AND MOTIONS
÷
former recovery or discharge in bankruptcy are not, likewise,
barred, these defenses having no direct relationship to the
concepts of 'genuineness and due execution.'
D. Filing and Service of Pleadings, Judgments
and Other Papers in Civil Cases ·
...
Meaniri� of 'fili'rig'
Filing is the act of presenting the pleading or other paper
to the clerk of court (Sec. 2, Rule 13, Rules of Court).
Meaning of 'service'
Service is the act of providing a party with a copy of the
pleading or paper concerned (Sec. 2, Rule 13, Rules of Court).
Upon whom service shall be made
1. If a party has not appeared by counsel, then servic
must be made upon him. If a party has appeared by counsel,
then service upon said party shall be made upon his counsel 01
one of them, unless service upon the party himself is ordered
by the court (Sec. 2, Rule 13, Rules of Court). The rule is that
when a party is represented by counsel in an action in court,
notices of all kinds, including motions, pleadings, and order1
•must be served on said counsel and notice to him is notice to
the client (People u. Gabriel, 510 SCRA 197, 202). Notice t
:
the counsel is effective notice to the client, while notice to th
client and not his counsel is not notice in law (Waterfront Cebu
City Casino Hotel, Inc. u. Ledesma, G.R. No. 197556, March
25, 2015), 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 (Heirs of Benjamin Mendoza v.
Court of Appeals, 565 SCRA 506, 512-513).
Subject to compelling reasons involving substantial
justice, service of a petition upon a party, when that part.)
is represented by counsel of record, is a patent nullity and
is not binding upon the party wrongfully served (Republic u.
Caguioa, 691 SCRA 306, 317, February 20, 2013). The reasoin
 314 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
is simple - the parties, generally, have no formal education
or knowledge of the rules of procedure, specifically, the
mechanics of an appeal or availment of legal remedies; thus,
they may also be unaware of the rights and duties of a litigant
relative to the receipt of a decision. More importantly, it is
best for the courts to deal only with one person fo the interest
:
of orderly procedure- either the lawy�r retained by the party
ci'r the party himself if he does not int�hd to hire a lawyer (DJ
las Santos u. Elizalde, 514 SCRA 14, 27).
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 one copy of any paper served upon him by the opposite side
(Sec. 2, Rule 13, Rules of Court). Hence, if he represents three
parties in the same case, he cannot insist on being served with
three copies of the paper served upon him.
Manner of filing
1. There are two modes of filing, to wit:
(a) by presenting the original copy of the pleading,
notice, appearance, motion, order or judgment personally
to the clerk of court; or
(b) by registered mail (Sec. 3, Rule l3, Rules of
Court).
2. In the first mode, the clerk of court shall indicate or
endorse on the pleading or paper filed, the date and hour of
filing (Sec. 3, Rule 13, Rules of Court).
3. In the second mode, the date of mailing, 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 (Sec. 3, Rule 13, Rules of Court).
4. Under Sec. 3, Rule 13 of the Rules of Court, where
the filing of pleadings, appearances, motions, notices, orders,
judgments, and all other papers with the court/tribunal is
CHAPTER IV 315
PLEADINGS AND MOTIONS
made by registered mail, the date of mailing, as shown by
the post office stamp on the envelope or the registry receipt,
shall be considered as the date of filing, payment, or deposit in
court.
Thus, the date of filing is determinable from two sources:
from, the post office stamp on the envelope or from the registry
receipt, eith�=ir of which m�y suffi9e to prove the;'timeliness
of the filing of the pleadings. If the date stampecl on one is
earlier than the other, the former· may be accepted as the
date of filing. This presupposes, however, that the envelope
or registry receipt and the dates appearing thereon are duly
authenticated before the tribunal where they are presented
(GSIS u. NLRC, 635 SCRA 251, 257).
How to prove filing
l. The filing of a pleading or paper shall be proved by
its existence in the record of the case. If it is not in the record,
but is claimed to have been filed personally, the filing shall b
proved by the written or stamped acknowledgment of its filing
by the clerk of court on a copy of the same (Sec. 12, Rule 13,
Rules of Court).
2. If the pleading or paper is filed by registered mail,
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 offic
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 (Sec. 12, Rule
13, Rules of Court).
Papers required to be filed and served
The following papers are required to be filed with the
court and served upon the parties affected: (a) judgments,
(b) resolutions, (c) orders, (cl) pleadings subsequent to the
complaint, (e) written motions, (f) notices, (g) appearanGes, (h)
demands, (i) offers of judgment, or G) similar papers (Sec. 4,
Rule 13, Rules of Court).
 316 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Modes of service
Under Sec. 5 of Rule 13, there are two modes of service
of pleadings, motions, notices, orders, judgments and other
papers: (a) personally (Sec. 6, Rule 13) or (b) by mail (Sec.
7, Rule 13). However, if personal service and service by mail
cannot be rp.ade, service shall be gone by 'substituted service'
(Sec. 8, Rule 13, Rules of Court). :?
Service of Judgments, final orders or resolutions
Specifically, when what is to be served are judgments,
final orders or resolutions, the same shall be served either (a)
personally, or (b) by registered mail. When a party summoned
by publication has failed to appear in the action, judgments,
final orders or resolutions against him shall be served upon
him also by publication (Sec. 9, Rule 13, Rules of Court; see
also Republic v. Bank of the Philippine Islands, G.R. No.
203039, September 11, 2013; See also Riguer v. Mateo, G.R.
No. 222538, June 21, 2017).
Personal service; priority in modes of service and filing
There are priorities to be followed in the modes of service
and filing. The service and filing of pleadings and other papers
shall be done personally, whenever practicable. This is the
preferred mode or service (Sec. 11, Rule 13, Rules o(Court;
Uy v. Medina, 342 SCRA 393, 401). If another mode of service
is used other than personal service, it must be accompanied
by a written explanation why the service or filing was not
done personally. Exempt from this explanation are the
service of papers emanati�g from the court. A violation of this
explanation requirement may be cause for the paper to be
considered as not having been filed (Sec. 11, Rule 13, Rules of
Court).
Vlfhen person1ai service is deemed complete
Upon actual delivery, personal service is deemed complete
(Sec. J 0, Rule 13, Rules of Court).
CHAPTER IV 317
PLEADINGS AND MOTIONS
Service by mail
1. The preferred service by mail is by registered mail.
Service by ordinary mail may be done only if no registry
service is available in the locality of either the sender or the
addressee (Sec.. 7, Rule 13, Rules of Court).
2.. Service by r,egistered mail shall be done by depositing
the cbpy in the po�t office,: in a sealed �nvelope, plainly
addressed to the party or his counsei at his office, if known,
· or otherwise at his residence, if known, with postage fully
prepaid, and with instructions to the postmaster to return the
mail to the sender after 10 days if not delivered (Sec. 7, Rul
13, Rules of Court). Service by registered mail is proved by the
registry receipt issued by the mailing office and an affidavit
of the person mailing of facts showing compliance with the
rule (Alba v. Malapajo, G.R. No. 198752, January 13, 2016').
Both the affidavit and the receipt need to be appended t -
o
the paper being served (Lisandra u. Megacraft International
Corporation, G.R. No. 204275, December 9, 2015).
3. When service of notice is an issue, the rule is that the
person alleging that the notice was served must prove the fact -
of service. The burden of proving notice rests upon the party
asserting its existence. In civil cases, service made through
registered mail is proved by the registry receipt issued by the
mailing office and an affidavit of the person ma'iling of facts
showing compliance with Sec. 13, Rule 13 of the 1997 Rules
on Civil Procedure (Republic u. Resins, Inc., 639 SCRA 390,
401-402, January 12, 2011).
When service by mail is deemed complete
1. Service by ordinary mail is complete upon th
expiration of 10 days after mailing, unless the court otherwis ee
provides (Sec. 10, Rule 13, Rules of Court).
2. Service by registered mail is complete upon actual
receipt by the addressee, or after five days from the _date he
0
received the first notice of the postmaster, whichever is earlier
(Sec. 10, Rule 13, Rules of Court).

318 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Substituted service
1. This mode is availed of only when there is failure to
effect service personally or by mail. This failure occurs when
the office and residence of the party or counsel are unknown
(Sec. 8, Rule 13, Rules of Court).
2. \Substit1.1ted service is �ffectedby delivering the copy
to the clerk of court, with pr66f of failure of both i:ersonal:
service and service by mail (Sec. 8, Rule_ 13, Rules of Court).
When substituted service is complete
Substituted service is complete at the time of delivery
of the copy to the clerk of court (Sec. 8, Rule 13, Rules of
Court).
How to prove service (Bar 2011; 2012)
①
1. Proof of personal service shall consist of the written
⑦
admission of the party served. It may also be proven by the
official return of the server, or the affidavit of the party serving,
containing full information of the date, place and manner of
service (Sec. 13, Rule 13, Rules of Court).
2. If the service is by ordinary mail, proof thereof
. shall consist of the affidav:it of the person mailing of the facts
showing compliance with Sec. 7 of Rule 13 (Sec. 13, Rule 13,
Rules of Court).
3. If service is by registered mail, the proof shall
consist of such affidavit of the person mailing and the registry
receipt issued by the mailing office. The registry return card
is to be filed immediately upon its receipt by the sender, or, in
lieu thereof, the unclaimed letter together with the certified
or sworn copy of the notice given by the postmaster to the
addressee (Sec. 13, Rule 13, Rules of Court; see Lisandra v.
1Vlegacraft International Corporation, supra).
4. Absent any proof of service of the decision, the period
of 15 days within which a party may file its motion for new
trial does not begin to run against such party. If it admits,
CHAPTERIV 319
PLEADINGS AND MOTIONS
however, that it received the copy of the decision on a certain
date despite absence of proof of service, that date would be the
reckoning date of the 15-day period (Republic v. Bank of the
Philippine Islands, G.R. No. 203039, September 11, 2013).
K Kinds of Pleadings
1. C9mplaint
Meaning of complaint
The complaint is the pleading alleging the plaintiffs
cause or causes of action (Sec. 3, Rule 6, Rules of Court). The
rule requires that the complaint need only allege the ultimate
facts 0
or the essential facts constituting the plaintiffs cause
of action (Zuniga-Santos v. Santos-Gran, G.R. No. 197380,
October 8, 2014).
Filing of the complaint; significance
1. The filing of the complaint is the act of presenting
the said complaint to the clerk of court (Sec. 2, Rule 13, Rules
•must be
of Court). For the purpose of filing, the original
presented personally to the clerk of court or sent by registered
mail (Sec. 3, Rule 13, Rules of Court).
2. The filing of the original complaint in court signifies
the commencement of the civil action (Sec. 5, Rule 1, Rules of
Court). 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 relief 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.
Under the said provision, "xxx the prescription of actions is
interrupted when they are filed before the court x x x."
Payment of docket fees and acquisition of jurisdiction
1. It is not simply the filing of the complaint or
appropriate initiatory pleading, but the payment of the
prescribed docket fee, that vests a t:i;ial court with jurisdiction
 320 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
over the subject matter or nature of the action (Proton
Pilipinas Corporation u. Banque National de Paris, 460 SCRA
260, 276). The court acquires jurisdiction over the case only
6kt upon the payment of the prescribed docket fees (7107 Islands
Publishing, Inc. u. The House Printers Corporation, G.R. No.
193420, October 14, 2015). This is the, general �ule.
2. The ttule on payment. of J6cket fee has, in soJ�
instances, been made subject to the rµle on liberal interpreta­
tion. Thus, in a case, it was held that while the payment of
the required docket fee is a jurisdictional requirement, even
its nonpayment at the time of filing does not automatically
cause the dismissal oCthe case, as long· as the fee is paid
within the applicable prescriptive or reglementary period
(Philippine Amusement and Gaming Corporation [PAGCORJ
u. Lopez, 474 SCRA 76, 92; See also Sun Insurance Office, Ltd.
v. Asuncion, 170 SCRA 274, 285). Also, if the amount of docket
fees is insufficient considering the amount of the claim, the
party filing the case will be required to pay the deficiency, but
jurisdiction is not automatically lost (Rivera v. Del Rosario,
419 SCRA 626, 635).
3. The case of The Heirs of Reinoso, Sr. v. Court of
Appeals, 654 SCRA 1, 9-10, clearly summarizes the rule on
the payment of docket fees. Thus:
XXX
"The rule is that payment in full of the docket fees
within the prescribed period is mandatory (Pedro sa u.
Hill, 327 Phil. 153, 158 [19961). In Manchester u. Court
of Appeals (233 Phil. 579 [19871), it was held that a court
acquires jurisdiction over any case o:n}y upon the payment
of the prescribed docket fee. The strict application of this
rule was, however, relaxed two (2) years after in the
case of Sun Insurance Office, Ltd. u. Asuncion (252 Phil.
280 [1989]) wherein the Court decreed that where the
initiatory pleading is not accompanied by the payment of
the docket fee, the court may allow payment of the fee
within a reasonable period of time, but in no case beyond
the applicable prescriptive or reglementary period. This
ruling was made on the premise that the plaintiff had
CHAPTER IV 321
. PLEADINGS AND MOTIONS
demonstrated his willingness to abide by the rules by
paying the additional docket fees required. Thus, in the
more recent case of United Overseas Bank u. Ros (G.R. No.
171532, August 7, 2007, 529 SCRA 334, 353), the Court
explained that where the party does not deliberately
intend to defraud the court in. payment of docket fees,
and manifests its willingness to abide by the rules by
piiying additional do¢Jrnt fe�;s when required by the fourt,
the liberal doctrine enunciated in Sun Insura'nce Office,
Ltd., and not the stric.t regulations set in Manchester; will
apply. It has been on record that the Court, in several
instances, allowed the relaxation of the rule on non­
payment 0£,docket fees in order to afford the parties the
opportunity to fully ventilate their cases on the merits.
In the case of La Balette College u. Pilotin (463 Phil. 785
[20031), the Court stated:
"Notwithstanding the mandatory nature of the
requirement of payment of appellate docket fees, [th]
e [Court] also recognize[s] that its strict application is
qualified by the following: first, failure to pay those fees
within the reglementary period allows only discretionary,
not automatic, dismissal; second, such power should be
used by the court in conjunction with its exercise of sound
discretion in accordance with the tenets of justice and
fair play, as well as with a great deal of circumspection
in consideration of all attendant circumstances." (For
further readings, see Ku· u. RCBC Securities, G.R. No.
219491, October 17, 2018).
4. One case holds that while the court acqmres
jurisdiction over any case only upon the payment of the
prescribed docket fees, its non-payment at the time of the filing
of the complaint does not automatically cause the dismissal
of the complaint provided that (a) the fees are paid within
a reasonable time; and (b) there is no intent to defraud the
government by the failure to pay the correct amount of filing
fees (Sy-Vargas u. The Estate of Ogsos, Jr., G.R. No. 221062,
October 5, 2016; For further readings, see Camaso u. TSM
Shipping [Phils.}, Inc., G.R. No. 223290, November 7, 2016).

322 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Effect of failure to pay docket fee on supplemental complaint
In a case, the respondent argued that the failure of the
plaintiff to pay the filing fees on their supplemental complaint
is fatal to their action. The Court ruled that the trial court
acquired jurisdiction over plaintiffs' action from the moment
they filed their original complaint accompanied by .the
payment of th'� filing fees due on thJ:'�ame. The plaintiffs' ribn­
payment of the additional filing fee$ due on their additional
claims did not divest the RTC of the jurisdiction it already had
over the case (Do-All Metals Industries, Inc. v. Security Bank
Corporation, 639 SCRA 39, 45).
Payment of docket fees for cases on appeal
1. The Rules of Civil Procedure, as amended, which
took effect on July 1, 1997, now requires that appellate docket
and other lawful fees must be paid within the same period for
taking an appeal. This is clear from the opening sentence of
Sec. 4, Rule 41 of the same rule that, 'Within the period for
taking an appeal, the appellant shall pay to the clerk of court
which rendered the judgment or final order appealed from,
the full amount of the appellate court docket and other lawful
fees" (Italics supplied). Note that the appellate docket fee is
not paid in the appellate court but in the court which rendered
the judgment or final order.
2. The Supreme Court has consistently held that
paynient of the 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 subjec_t matter of the action and the decision sought to be
. appealed from becomes final and executory (Regalado v. Go,
514 SCRA 616, 634). Hence, non-payment is a valid ground
for the dismissal of an appeal (M.A. Santander Construction,
Inc. v. Villanueva, 441 SCRA 525, 530). However, delay
in the payment of the docket fees confers upon the court a
discretionary, not mandatory, power to dismiss an appeal
(Villamar v. Court of Appeals, 434 SCRA 565, 571-572; See
-
also Reyes v. People, G.R. No. 193034, July 20, 2015).
CHAPTER IV 323
PLEADINGS AND MOTIONS
2.Answer
Nature of an answer
1. Recall that the initial pleading, in ordinary civil
actions, is the complaint in which the plaintiff sets forth his
claim or claims against the defendant and also his prayer
for:}elief. Now, when thec.�omplaint is filed andJhe requisite
· legal fees are paid, the cl�ric of court issues the �di-responding
summons to the defendant. The summons instructs the
defendant to answer the complaint within the time fixed by
the Rules.
The defendant, upon the service of summons upon him,
may avail of certain options depending on the situation. He
may file a motion for bill of particulars if there are allegations
in the complaint that require clarification or details so he may
be able to intelligently respond to the complaint. He may also
file a motion to dismiss if a ground exists for the immediate
dismissal of the complaint. If no ground for either motion
exists, the wiser move is to serve and file his answer to the
complaint to prevent his being declared in default.
2. The answer is a pleading in which a defending party
sets forth his defenses (Sec. 4, Rule 6, Rules of Court). This
pleading may be an answer to the complaint, counterclaim or
a cross-claim. There is no answer to a reply but there could
be an answer to a third-party complaint or complaint-in­
intervention. Since the answer merely responds to a claim, an
answer is called a "responsive" pleading.
Kinds of defenses in the answer
L An answer contains the defenses of the answering
party. These defenses may either be negative or affirmative.
(Sec. 5, Rule 6, Rules of Court).
2. A defense is negative when its purpose is to
specifically deny the material averments in the pleading of
the claiming party.
Under the Rules, a negative defense is the specific denial
of the material fact or facts alleged in the pleading of the
 324 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
claimant essential to his cause of action or defense (Sec. 5[a],
Rule 6, Rules of Court). A negative defense is stated in the
form of a specific denial and the kinds of specific denials are
described in Sec. 10 of Rule 8. If the denial is not one of those
-
described under the said provision, the denial is deemed to be
general. A general denial is considered ah admission.
• -3_ }A defense is affirm&tive when its p\irpos� is to
prevent /\fr bar recovery by the claiming party eve� if it
hypothetically admits the material allegations in the pleading
of the claimant. It is, therefore, a defense by way of confession
and avoidance (Sec. 5[b], Rule 6, Rules of Court). Example:
.
The defendant admits his debt in favor of the defendant,
-
but he denies his legal liability because the debt has already
prescribed or that the court, before which the comph1int has
been filed, has no jurisdiction over the subject matter.
The affirmative defenses include fraud, statute of
limitations, release, payment, illegality, statute of frauds,
estoppel, former recovery, discharge in bankruptcy, and any
other matter by way of confession and avoidance (Sec. 5[b},
Rule 6, Rules of Court).
Effect of absence of a specific denial
1. By authority of Sec. 11 of Rule 8, material averments
in. the complaint not specifically denied shall be deemed
admitted, except averments of the amount of unliquidated
damages (See also Fernando Medical Enterpises, Inc. v.
Wesleyan University Philippines, Inc., G.R. No. 207970,
January 20, 2016).
2. 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 pursuant to Rule 34.
Bar 2018
The trial court may render a judgment on the pleadings
upon motion of the claiming party when the defending party's
answer fails to tender an issue, or otherwise admits the
material ailegations of the adverse partis pleading. For that
CHAPTER IV 325
PLEADINGS AND MOTIONS
purpose, only tho pleadings of the parties are to be generally
considered. A party admits the material allegations of the
adverse party's pleading not only when he expressly confesses
the truth of such allegations, but also when he does not
controvert the same by specific denials (Fernandez Medical
Enterprises, Inc. v. Wesleyan University Philippines, Inc.,
,ibid.). ;,·i·
't., '
Purpose of a specific denial
1. It is the specific denial of the. material allegations
in the complaint which creates the• issues in civil litigation.
These issues are to be• proven and are the matters to which
every evidence in a case is directed. Without such issues, there
is no necessity for a trial since nothing is to be proven. In
evidentiary terms, there is no factum probandum (the matter
or proposition to be proven).
2. Jurisprudentially, 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 (Philippine Bank of Communications
v. Go, 642 SCRA 693, 707, February 14, 2011, citing Aquintey
v. Tibong, 511 SCRA 414, 432).
�(inds of specific denials (Bar 2011; 2015)
1. A general denial does not become specific by the use
of the word "specifically." Merely uttering "specific denial"
is ineffective if the denial does not conform to the methods
of denial provided for by the Rules of Court. It still amounts
to an admission under Sec. 11, Rule 8 of the Rules of Court.
Using "specifically" in a general denial does not automatically
convert that denial to a specific one (Republic v. Gimenez,
G.R. No. 174673, January 11, 2016; see Department of Public
Works and Highways v. CMC!Monark!Pacific!Hi-Tri Joint
Venture, G.R. No. 179732, September 13, 2017).
2. The denial in the answer must be definite as to what
is admitted and what is denied, such that the adverse party
326 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
will not have to resort to guesswork over what is admitted and
what is denied (Department of Public Works and Highways
u. CMC/Monark/Pacific!Hi-Tri Joint Venture, G.R. No.
179732, September·13, 2017).
There are three types of specific denials mentioned in
Sec.,, 10 of Rule 8 of the Rµles of Court, namely: ($ee Republic
Gimenez, ibid.). ,,,, ;,;
(a) The defendant specifies each material allegation
. 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 his denial. This kind of denial
is an absolute denial (Sec. 10, Rule 8 of the Rules of Court;
Philippine Bank of Communications u. Go, supra). Bar
2011
Example: "Defendant denies the truth of the
allegations in par. 7 of the complaint alleging that he
owes the plaintiff P450,000, the truth of the matter being
that it is the plaintiff who owes the defendant the same
amount."
Here, the defendant absolutely denies his liability
and alleges what to him are the actual facts. In making a
specific denial, reference must be made to the paragraph
sought to be denied. Since the rule requires that the
defendaht must "specify each material allegation of fact,"
a denial of the allegations in each paragraph is required.
A blanket denial, which reads: "Defendant specifically
denies all the material allegations in the complaint," is
not a specific denial. The use of the word "specific" does not
make the denial specific. The blanket denial is actually a
general denial which, in effect, is an admission.
(b) Another type of a specific denial is where the
defendant does not make a total denial of the material
allegations in a specific paragraph. In this type of denial,
he denies only a part of the averment. If he chooses this
type of denial, he specifies that part the truth of which
he admits and denies only the remainder. This denial is
known as a partial denial.
CHAPTER IV 327
PLEADINGS AND MOTIONS
Example: In an action for damages, the defendant
avers: "Defendant admits the allegations in paragraph 5
of the complaint, that Plaintiff sustained injuries when
his car collided with the herein Defendant's car, but
denies the allegation that the collision occurred through
Defendant's fault;"
(c) ;?One type of a .. spec{fic denial is wh13re. the
defertdarit alleges that lie "is without knowledge or
information sufficient to form a belief as to the truth of a
material averment made i.n the complaint." This type of
specific denial, called a denial by disavowal of knowledge,
must be made sincerely and in good faith (Warner Barnes
& Co., Ltd. u. Reyes, 103 Phil. 662, 665).
When the defendant alleges having no knowledge or
information sufficient to form a belief as to the truth of
the allegations of the other party but such matters ar
plainly and necessarily within the defendant's knowledgw,
a claim of "ignorance or lack of information" will not
considered as a specific denial (Aquintey u. Tibong, 51
SCRA 414, 433; Camitan v. Court of Appeals, 511 SCR}l
364, 373). Where the fact as to which a lack of knowledge
is asserted is, to the knowledge of the court, so plainly
within the defendant's knowledge that his averment of
ignorance must be palpably untrue (Warner Barnes &
··
Co., Ltd. u. Reyes, supra).
Example: Mr. D signs a promissory note in favor of Mr.
P. Since Mr. D failed to pay despite demand, suit was brought
against him. The complaint duly pleaded the promissory
note as an actionable document. Mr. D denies the alleged
promissory note by averring lack of knowledge of the note.
This averment appears to be one in bad faith and shall b
⇐
considered as an admission because it is absurd for Mr. D not
to know of the promissory note he himself signed. Bar 1978;
1993
In an action to foreclose a mortgage, a denial that the
defendant is without any knowledge of his having signed a
deed of mortgage, when the facts and the actionable document
328 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
forming the basis of the claim incontrovertibly show that he
so executed the document denied, is a denial in bad faith. This
denial amounts to an admission. Bar 2004; 2005
Negative pregnant
1. In a pleacling,, a negative pregnant is a negative
ipiplying also an affirli{iltive and which, alth6'rtgh stated in a
negative form, really admits the allegations to'.which it relates
(Cramer v. Aiken, 63 App. D.C. 16, 68 F. 2d 761, 762, cited in
Black's Law Dictionary, 5th Ed., 930). It is a form of a negative
expression which carries with it an affirmation or at least
an implication of some kind favorable to the adverse party
(Valdez v. Dabon, Jr., A.C. No. 7353, November 16, 2015).
Examples: (a) The defense alleges: "I had never
borrowed money from the plaintiff from 2011 to 2013,"
may imply that the pleader had borrowed money at some
other time and was only denying that he did so during
the years mentioned.
(b) A complaint alleges: "Plaintiff extended a loan
to Defendant in the amount of P500,000 on July 27, 2016
in Baguio City." The defendant, in his answer, alleges:
"Defendant specifically denies that Plaintiff extended a
loan to Defendant in the amount of P500,000 in Baguio
City." . ..
Notice that the answer is a mere repetition of the
allegations made in the complaint. The answer is vague
as to what it really denies. Is it the existence of a loan
that is denied? Is it the amount? The place? The effect of
this kind of denial may be an admission that he borrowed
the amount alleged although he may be denying the place
where the loan was contracted.
(c) The plaintiff alleged that the defendant evicted
him and the other lawful occupants of the property by
intimidating them with an assault rifle. The defendant
alleged in his answer: "Defendant denies vigorously
that he used or brandished an assault rifle against the
CHAPTER IV 329
PLEADINGS AND MOTIONS.
plaintiffs." The answer could be an admission of having
intimidated the plaintiffs but not through the use of an
assault rifle.
2. In one case, the respondent, in a disbarment case,
charged with having extramarital affairs with a married
woman, 1;1;lleged that the affair dicl not amount to gross immoral
conduct ahd that no sexual abu�e, threat or intimidatfon was
exeited upon the woman. The Court interpreted the def�nse as
an admis§ion of the existence ofthe affair and that his. denial
only pertained to the existence of a forced illicit r�lationship.
In other words, the denial, ruled the Court, constitutes a
negative pregnant (Valdez v. Dabon, Jr., supra).
When a specific denial must be coupled with an oath (Bar
2010)
1. As a rule, a negative defense is sufficient if made in
the form of a specific denial of the material allegations alleged
in the pleading of the claimant. There are, however, instances
when a mere specific denial is not sufficient for a negative
defense. In certain cases, the specific denial must be made
under oath and, in these instances, a mere specific denial
is not enough to produce the kind of denial required by the
Rules. These are:
(a) a denial of an actionable document (Sec. 8, Rule
8, Rules of Court); and
(b) a denial of allegations of usury in a complaint to
recover usurious interest (Sec. 11, Rule 8, Rules of Court).
2. Whenever an action or defense is based or founded
upon a written: instrument or document, said instrument or
document is deemed an actionable document.
If the pleader has an actionable document, like a
promissory note, under the Rules, the substance of such note
shall be set forth in the pleading and the original or copy
thereof attached to the pleading as an exhibit. When attached
as an exhibit, the promissory note shall be deemed a part of
the pleading. The copy of the note may also with like effect, be
330 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
set forth in the pleading (Sec. 7, Rule 8, Rules of Court). When
the manner of alleging the document is done in accordance
with the Rules, the actionable document is deemed to have
been properly pleaded.
Now, if the adverse party desires to deny the genuineness
and due execution of the actionable document, he must do two
things: (a) specifi.¢ally deny the gern;1ine�iss and due execution }
of the document/and set forth whathe '�laims to be the facts, : .
and (b) make theCdenial under oath (Sec. 8, Rule 8, Rule$ o/
Court).
If he does not specifically deny the genuineness and
due execution of the document under oath, he is deemed to
have admitted the genuineness and due execution of that
document. Because of this admission, he can no longer deny
that the note was forged or that the one who executed the
same was not authorized to do so. These defenses are barred
by the admission. May he, however, still defend by showing
fraud in the execution of the note, payment or prescription of
the same? Answer:0 Yes, he can, because these defenses are not
barred by the admission.
It was ruled that the failure to deny the genuineness and
clue execution of an actionable document does not preclude a
party from arguing against it by evidence of fraud, mistake,
=
compromise, payment, statute of limitations, estoppel, and
=
want of consideration (Adabal v. Acabal, 454 SCRA 555, 569).
3. Allegations of usury will be deemed admitted if not
denied under oath. However, not every allegation of usury
requires a denial under oath. The allegations of usury that
requires a specific denial under oath must be:
(a) allegations of ustiry in a complaint (not
allegations of usury in the answer), and
(b) the complaint is filed to recover usurious
interests (Sec. 11, Rule 8, Rules of Court).
Note: Sec. 1, Rule 9 of the 1964 Rules of Court provided
in part: ''.x x x Allegations of usury are deemed admitted if not
denied specifically and under oat- h. "The tenor of this provision
CHAPTER IV 331
PLEADINGS AND MOTIONS
' .
is markedly different from the present rule. Under the former
rule, every allegation of usury had to be denied under oath.
Under the current rule, the allegation of usury which needs to
be denied under oath is an "allegation of usury in a complaint."
Besides, the complaint must be one filed "to recover usurious
interests."
Mailers not deemed admitled by the failure to m;ike a specific
denial
1. The provisions of Sec. 11 of Rule 8 establish the rule
that material allegations in the complaint not specifically
denied are deemed admitted. The following are nevertheless,
riot deemed admitted by the failure to make a specific denial
in a party's responsive pleading:
(a) Amount of unliquidated damages (Sec. 11, Rul
8, Rules of Court).
(b) Conclusions in a pleading because it is for the
court to make conclusions.
(c) Non-material averments or allegations because
only material allegations have to be denied (See Sec. 11,
Rule 8, Rules of Court).
2. In one case denominated as one for "Quieting o"
Title," the plaintiff alleged that the defendan� mortgage
failed to enforce its right as mortgagee through the filing of
a complaint for judicial foreclosure despite the lapse of more
than thirty-five (35) years from the execution by the plaintiff
of a deed of real estate mortgage over his property, and; that
because of such failure, the mortgagee's right to foreclose
has lapsed by extinctive prescription. The plaintiff argued
that since such allegation-had not been specifically denied by
the defendant, the allegation of prescription of the right t
:
foreclose should be deemed admitted by the defendant. Is th
prescription of the right to foreclose deemed adniitted?
It is not deemed admitted. The allegation of the
plaintiff concerning the prescription of the right to foreclos
is a conclusion of law. Conclusions of la:w and fact in th
332 CIVILPRO CEDURE,VOLUMEI
THE BAR LECTURES SERIES
complaint are not deemed admitted by the failure to make a
specific denial. Only material allegations of facts need to be
specifically denied. In the same vein, the characterization of
a contract as void or voidable is a conclusion of law (Mercene
v. Government Service Insurance System, G.R. No. 192971,
January 10, 2018).
Affirmative Jfenses
1. A defense is affirmative when it alleges new matters
which, while hypothetically admitting the allegations in the
pleading of the claimant, would, nevertheless, prevent or bar
recovery by the claiming party (Sec.. 5[b}, Rule 6, Rules of
Court).
2. An affirmative defense is one which is not a denial
of an essential ingredient in the plaintiffs cause of action,
but one which, if established, will be a good defense, i.e., an
"avoidance" of the claim. An affirmative defense includes
fraud, statute of limitations, release, payment, illegality,
statute of frauds, estoppel, former recovery, discharge in
bankruptcy, and any other matter by way of confession and
avoidance. Allegations presented in the answer as affirmative
defenses are not automatically characterized as such. Before
an allegation qualifies as an affirmative defense, it must be of
such nature as to bar the plaintiff from claiming on his cause
of action. When the answer asserts affirmative defenses, there
is proper joinder of issues which must be ventilated in a full­
=
blown trial on the merits and cannot be resolved by mere
judgment on the pleadings (Pesane Animas Mongao v. Pryce
Properties Corp., 467 SCRA 201, 214; See also Sec. 5[b}, Rule
6, Rules of Court).
Periods to file an answer to a complaint
1. The defendant shall file his answer to the complaint
15 days after service of summons, unless a different period is
fixed by the court (Sec. 1, Rule 11, Rules of Court). Where the
plaintiff files an amended complaint as a matter of right, the
defendant shall answer the same within 15 days after being
served with a copy thereof (Sec. 3, Rule 11, Rules of Court).
CH APTER IV 333
PLEADINGS AND MOTIONS
Where the filing of the amended complaint is not a matter
of right, the defendant shall answer the amended complaint
-
-
within 10 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 (Sec. 3, Rule 11, Rules of
Court).·
2. Where -thei.:defendant is a privat&: foreign juridicai
entity and service· of summons is made ori' the government
-
· ' official designated by law to receive the same, the answer
shall be filed wl.thin 30 days after receipt of summons by
such entity (Sec. 2, Rule 11, Rules of Court). In cases wher
e-
summons had been served through extraterritorial servic
under Sec. 15 of Rule 14, the period to answer is 60 days from
service of summons.
3. A supplemental complaint may be answered within
10 days from notice of the order admitting the same, unles
:
a different period is fixed by the court. The answer to th
complaint shall serve as the answer to the supplement�l
complaint if no new or supplemental answer is filed (,
Rule 11, Rules of Court).
2(a). DEFAULT
Nature of default (Bar 2013; 2014; 2015; 2017)
1. Default is a procedural concept that occurs when tli
defending party fails to file his answer within the reglementary
period. A declaration or order of default is issued as
-
punishment for unnecessary delay in joining issues (Vlason
Enterprises Corp. v. Court of Appeals, G.R. Nos. 121662-64
July 6, 1999). Bar 1999; 2012
2. The rule on default clearly establishes the "failur
÷
to answer within the time allowed therefor" as the ground for
a declaration of default (Sec. 3, Rule 9, Rules of Court,· s
Alvarado v. Ayala Land, Inc., G.R. lVo. 208426, September
2017). From the tenor of the Rules, default does not technically
occur from the failure of the defendant to attend either th
pre-trial or the trial (See Sec. 3, Rule 9, Rules of Court). Henw,
 334 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
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 (Sec. 5, Rule 18, Rules of Court), is not the ground for
a declaration of default as the term is contemplated under
Sec. 3, Rule 9. of the Rules of Court. While the effect of the
failure of :the defendant to app�ar at the pre-trial is .pimilar
to that otdefault, under the Iirtles, this consequ'�nc�tis not
to be called a declaration of d�fault. The term "defa�ilt," in
Rule 9, is not identified with the failure to appear in court, but
with the failure of the defending party to 0 answer within the
reglementary period.
The Court, quite recently, clarified that failure to attend
the pre-trial does not result in the "default" of the defendant.
Instead, the failure of the defendant to attend shall be cause
to allow the plaintiff to present his evidence ex parte and the
court to render judgment on the basis thereof (Aguilar v.
Lightbringers Credit Cooperative, G.R. No. 209605, January
12, 2015; Salvador v. Rabaja, G.R. No. 199990, February 4,
2015; For further readings, see Carlson Realty & Management
Corporation u. Red Robbin Security Agency, G.R. No. 225035,
February 8, 2017).
3. The defendant's non-appearance in the hearing and
failure to adduce evidence do not constitute default when
an ai1swer has been filed within the· reglementary period.
The failure of the defendant to attend the hearings for the
presentation of the evidence of the adverse party amounts not
to a default, but to a waiver of the defendant's right to object
to the evidence presented during such hearings and cross­
exarpine the witnesses presented (Monzon Spo1j,ses Reloua v.
Addia Properties, Inc., 565 SCRA 514, 524).
Ll. Be reminded that under the former Rules (Sec. 2 of
Rule 20 of the 1964 Rules of Court), a party who fails to appear
at the pre-trial conference may be declared non-suited, if he is
the plaintiff, or as in default, if he is the defendant. The terms,
'non-suited' or 'as in default,' no longer appear in the present
rules on default.
done / °
parte
-
respect
ex
CHAP1'ERTV 335
PLEADINGS AND MOTIONS
Requisites before a defending party may be declared in
default (Bar 1999; 2013; 2015)
The following are the requisites before a party may be
declared in default:
(a) The court has validly acquired jurisdiction over
the person of!the defending party, either by service of
summons orvtluntary appearance(S_
. . . . -.ablas v. Sablas, 526 ,.,
-
- -
SCRA 292, 296);
(b) The claiming party must file a motion to
declare the defending party in default (Sablas v. Sablas,
526 SCRA 292, 297; Momarco Import Company, Inc. v.
Villamena, G.R. No. 192477, July 27, 2016);
(c) The claiming party must prove that the
defending party has failed to answer within the period
provided by the Rules of Court (Sablas v. Sablas, supr~ ·
Momarco Import Company, Inc., supra);
(d) The defending party must be notified of the
motion to declare him in default (Sec. 3, Rule 9, Rules
of Court; Momarco Import Company, Inc. v. Villamena,
supra); and
(e) There must be a hearing of the motion to declare
the defending party in default (Spouses de los Santos u.
. Carpio, 501 SCRA 390, 399-400; for further readings, •
see Carlson Realty & Management Corporation v. Red
Robbin Security Agency, G.R. No. 225035, February 8,
2017).
No motu proprio declaration of default
l. It has to be emphasized that the present rule on
default requires the filing of a motion and notice of such motion
to the defending party, it is not enough that the defendant
failed to answer the complaint within the reglementary period
to be a sufficient ground for declaration in default. It is plain,
therefore, that the default of a defending party cannot be
declared motu proprio (See Momarco Import Company, Inc. v.
Villamena, supra).
tnot-uprop.io an official acttaken who
formal request
a
-
from anotherparty
336 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
The Court clearly explains, thus:
"It is not enough that, the defendant fails to answer
the complaint within the reglementary period. The
trial court cannot, motu proprio, declare a defendant in
default, as the rule leaves it up to the claiming party
to protect his or its interests. The trial court should
not, under any circumstances, act as counset of the
';''claiming party" (Sd.bla1\v. Sablas, supra; see cizs'b Tung
Ho Steel Enterprises Co,:poration V. Ting Guan' Trading
Corporation, G.R. No. 182153, April 7, 2014).
2. 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
(Sec. 15, Rule 2, Part IL Rules of Procedure for Environmental
Cases). It is to be noted that under the Rules of Procedure
for Environmental Cases, it is the court which shall, on its
own motion, declare the defendant in default. No motion is
required of the plaintiff. The motion of the plaintiff, however,
is required before the court orders the reception of evidence ex
parte.
In ordinary civil actions, a motion to declare the defendant
-
in default is required 9efore the court d_eclares_ the defendant in
default. Where there is no motion, there can be no declaration
of default. Also, when the court, in the exercise of its discretion,
requires the claimant to submit evidence, a prior motion from
the claiming party is not required (Sec. 3, Rule 9, Rules of
Court), unlike the required motion in environmental cases
(Sec. 15, Rule 21 Part II, Rules of Procedure for Environmental
Cases).
Faiiure to serve the answer to the adverse party
It ws.s held that 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 (Gonzales and Mauricio v.
Francisco, 49 Phil. 747i Banares u. Flordeliza, et al., 51 Phil,
CHAPTER IV 337
PLEADINGS AND MOTIONS
786; Cases cited in Regalado, Remedial Law Compendium, p.
189, 2005 Ed.). 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 (Banares v. Flordeliza, et al., 51 Phil. 786).
Effect of' a. declara
.:·; 1,:
!
tion/order of
•
default
:.:"1'.
(Bar 2012) : �;;
1. Th� party declared in default loses his stahdii{g in
court. 'rhe loss of such standin g prevent s him from taking
part in the trial (Sec. 3[a], Rule 9, Rules of Court). He forfeit"'
=
his rights as a party litigant, has no right to present evidenc
supporting his. allegations, to control the proceedings or crosfl•
examine witnesses (Lui Enterprises, Inc. v. Zuellig Pharm
Corporation, G.R. No. 193494, March 12, 2014).
2. While the defendant can no longer take part in the
trial, he is, nevertheless, entitled to notices of subsequent
proceedings (Sec. 3[a], Rule 9, Rules of Court). It is submitted
that he may participate in the trial not as a party, but
witness.
In a complaint for interpleader, the failure of a claimant
=
to answer within the time fixed, may, on motion, be declared
in default and thereafter render judgment barring him from
any claim in respect to the subject matter (Sec. 5, Rule 6
Rules of Court). In an expropriation proceeding, the defendant
who fails to answer may still present his evidence as to the
amount of compensation to be paid for his property. He may
also share in the distribution of the award (Sec. 3, Rule 6'
Rules of Court).
3. A declaration of default is not tantamount to a n
admission of the truth or the validity· of the plaintiffs claims
-
(Monarch Insurance v. Court of Appeals, 333 SCRA 71, 9°·
Vlason Enterprises Corp. u. Court of Appeals, 310 SCRA
64).
In very clear terms, it was held:
"A judgment of default does not imply a waiver of
rights except that of being heard and presenting evidence
 338 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
in defendant's favor. It does not imply admission by the
defendant of the facts and causes of action of the plaintiff
x x x. Nor could it be interpreted as an admission by the
defendant that the plaintiffs causes of action find support
in the law or that the latter is entitled to the relief prayed
for x x x" (Monarch Insurance v. Court of Appeals, 333
SCRA 71, 93). . at its discretion, select from the options granted to it in Sec: 3,
:.,• , .. r;ii. ._,.: . ;:;;;_·
4. It should be!·:emphasized that ·the 1 :mere fact that
the defendant was not: able to answer the complaint does not
automatically mean tha:t 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
(Villongco u. Yabut, G.R. No. 225022, February 5, 2018).
Effect of partial default (Bar :wn)
When a pleading asserts a claim against several
defending parties and some file and serve their answers but
the others do not, the court shall try the case against all the
defending parties based on the answers filed and render
judgment upon the evidence presented where the claim states
a common cause of action against them (Sec. 3[c], Rule 9, Rules
of Court). Because there is a common cause of action against
the defending parties, where one of them fails to answer,
the non-answering defendant may be declared in default but
the court shall refrain from rendering aju_dgment by default
against· such party because the case shall be tried based on
the answers of the other defending parties.
Action o-f the court after the declaration/order of default
1. Under the Rules (Sec. 3, Rule 9), 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; or
(b) require the claimant to submit evidence ex
parte.
2. The choice of which action to take is a matter of
judicial discretion (Sec. 3, Rule 9, Rules of Court). Under the
CHAPTER IV 339
PLEADINGS AND MOTIONS
previous rule, the court had no power to render judgment
immediately after the declaration or order of default. It had
to require the reception of evidence by the plaintiff but done
without the participation of the defendant who has already
lost his standing in court. The court, under current rules may,
Rule 9 ofithe Rules of Court. , :;: , ,;
Court not required to receive evidence personally
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 o''
court (Sec. 3, Rule 9, Rules of Court). Bar 2011
Admission of answer filed out of time
l. . 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 t
answer expires. The Rules of Court provides for discretio
the part of the trial court not only to extend the time for fili.r
an answer but also to allow an answer to be filed after tl
reglementary period (Sablas u. Sablas, 526 SCRA 292, 297).
Under the Rules, the court may extend the time to plead upor
motion and upon such terms as are just. The court may als
:
allow an answer or other pleading to be filed · after the tim'°
fixed by the Rules (Sec. 11, Rule 11, Rules of Court).
2. Thus, it was held that the appellate court erred
when it ruled that the trial court had no recourse but t
declare petitioner spouses in default when they failed to fil
their answer on or before the reglementary period. It wa
also declared in the same case that the trial court correctly
admitted the answer of the petitioner spouses even if it wai
filed out of time because, at the time of its filing, they were not
yet declared in default nor was a motion to declare them
default ever filed. Neither was there a showing that petition
spouses intended to delay the case.
It is not correct to say that a trial court has no recour.s
but to declare a defending party in default when he fails
 340 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
file an answer within the required period. 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 (Sablas v. Sablas, supra).
3. Where the answer is filed beyond the reglementary
period but before tµe defendant is declatf)d in default and
there is no sho'wiri� that defendant;int�hds to delay the.
case, the answer should be admitted (San Pedro Cineplex
Properties, Inc. v. Heirs of Manuel HumadaBnaiio, 635 SCRA
421, 424-425). The hornbook rule is that default judgments
are generally disfavored (Paramount Insurance Corp. v. A. C.
Ordonez Corporation, 561 SCRA 327, 334).
Extension of the time to answer
1. The trial court has the discretion not only to extend
the time for filing an answer but also allow an answer to be
=-_
filed after the reglementary period. Hence, it is erroneous for
the appellate court to rule that the trial court has no recourse
but to declare the defending party in default for failure to file
a timely answer (Sablas v. Sablas, 526 SCRA 292, 298).
2. 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 (Trajano v.
. Cruz, 80 SCRA 712, qs cited in Sablas.v. Sablas, supra).
Remedies of a defending party declared in default (Bar 1998;
2012; 2013)
(a) Remedy after notice of order and before judgment
- 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 and properly show that (a) the failure
to answer was due to fraud, accident, mistake, or excusable
negligence (FAl\1EN), and (b) he has a meritorious defense
contained in an affidavit of merit (Sec. 3[b], Rule 9, Rules of
Court; See also Villareal v. Court of Appeals, 295 SCRA 511,
529; Republic v. Sandiganbayan, 540 SCRA 431, 445; Lui
Enterprises, Inc. v. Zuellig Pharma Corporation, G.R. No.
193494, IVlarch 12, 2014).. Bar 1999; 2000
CHAPTER IV 341
PLEADINGS AND MOTIONS
(b) Remedy after judgment and before judgment
becomes final and executory - If the judgment has already
been rendered when the defendant discovered the default,
but before the same has become final and executory, he may
file a motion for new trial under Rule_ 37. He may also appeal
fromthe judgment as being contrary to the evidence or tlie
law (IJina v. Court of Appeal$, 135 SCRA 637, 642;1.tepublic v.
Sandiganbayan, 540 SCRA 431, 445). The rightto ippeal from
a judgment by default is not to be denied the party aggrieved
(See Bitte v. Jonas, G.R. No. 212256, December 9, 2015).
(c) Remedy after the judgment becomes final and
executory - The defendant may file a petition for relief from
Judgment under Rule 38 (Republic v. Sandiganbayan, supra;
for further readings, see Laus v. Court of Appeals, 219 SCRA
688; Lui Enterprises, Inc. v. Zuellig Pharma Corporation,
supra).
Note: The above remedies presuppose that the defending
party was properly declared in default. It is submitted however,
that certiorari will lie when said party was improperly
€
declared in default because this would tantamount to a grave
abuse of discretion amounting to lack of jurisdiction (For
related readings, see Lui Enterprises, Inc. v. Zuellig Pharma
Corporation, supra).
For instance, a declaration of default by the court before
the defendant's period to file his answer had expired clear­
ly is in excess of and/or without jurisdiction and, therefore,
properly correctible by a writ of certiorari. The premature
declaration of default of defendant or the rendering of judg­
ment before the expiration of the time for the filing 9f answer
deprives the defendant of his day in court and the judgments
rendered may, consequently, be vacated (Viacrusis v. Estenzv,
G.R. L-18457, June 30, 1962). The same remedy may also be
available where the defendant has been wrongly or improvi­
dently declared in default, as when a timely answer has been
properly filed and served. Under such a situation, the, court
can be considered to have acted with grave abuse of discretion
amounting to lack of jurisdiction. cettiorari -
-
 342 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
It is error to declare a defendant in default after the
answer was filed (Cathay Pacific Airways v. Romillo, Jr., 141
SCRA 451, as cited in Sablas v. Sablas, 526 SCRA 292, 299).
Bar 2013 It would be grave abuse of discretion to declare
_a defending party in default despite his filing of an answer
(Indiana Aerpspace University V; ; Commission on Higb,.er
Educatior,i. , 3ff
" �
(i SCRA 367, as ci.ted Jh Sablas v. Sablas, ibid;).
: .
Current judicial trend on defaults · -
1. The current judicial trend is to avoid defaults and,
thus, courts are enjoined to be liberal in setting aside orders
of default (Ampeloquio v. Court of Appeals, 333 SCRA 465).
The policy of the law is to have every litigant's case tried on
the merits as much as possible. Hence, judgments by default
are frowned upon. A case is best decided when all contending
parties are able to ventilate their respective claims, present
their arguments and adduce evidence in support thereof
(Sablas v. Sablas, 526 SCRA 292, 297). Bar 1983; 1999; 2000
2. 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 (Lorbes v. Court of
Appeals, 351 SCRA 716, 724) because suits should, as much
as possible, be decided on the merits and not on technicalities
(See also Samartino v. Raon, 383 SCRA 664, 673). 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.
implied !i'iting of the order ·of default
May a default order be impliedly lifted? In one case,
former President Marcos was declared in default for failure
to file an answer. He died in Hawaii as an exile while his
case was pending. His representatives failed to file a motion
to lift the order of default. Nevertheless, his son, Ferdinand
Marcos, Jr., the respondent in this case, and as executor of
his father's estate, filed a motion for leave to file a responsive
CHAPTER IV 343
PLEADINGS AND MOTIONS
pleading and three motions for extensions to file an answer,
all of which were granted by the anti-graft court. Instead of
filing a responsive pleading, respondent later filed a motion
for bill of particulars which was also granted.
XXX
"Given the existence of the default order then, what
' . ;�
is the legal effect'of the granting of the tii�tions to file
; ...
a responsive plea�ing and bill of particulars? In [the
Court's] view, the effect is that the default 'order against
the former president is deemed lifted (Italics supplied).
XXX
While it is true that there was no positive act on the
part of the court to lift the default order because there
was no motion nor order to that effect, the anti-graft
court's act of granting respondent the opportunity to file a
responsive pleading meant the lifting of the default ordei;
on terms the court deemed proper in the interest of justice.
It was the operative act lifting the default order and
thereby reinstating the position of the original defendant
whom respondent is representing, founded on the
court's discretionary power to set aside orders of default
(Underscoring supplied; Republic u. Sandiganbayan, 540
SCRA 431, 444-448).
Extent of relief in a judgment by default
The reliefs that may be granted in default situations ar
restricted by Sec. 3(d) of Rule 9 of the Rules of Court. Thus, if
the complaint seeks to recover Pl million but the evidence of
the plaintiff shows a right to recover Pl.5 million, the court ha
:
no authority to grant the latter amount despite the evidence.
This is because, -under the Rules, "A judgment render
against a party in default shall not exceed the amount orb
different in kind from that prayed for nor award unliquidat
damages" (Sec. 3{d], Rule 9, Rules of Court).
Cases where a declaration/order or default cannot be rnact
1. Default is not allowed in the following actions:
(a) annulment of marriage;
 344 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
(b) declaration of nullity of marriage; and
(c) legal separation (Sec. 3[e}, Rule 9, Rules of
Court)..
2. If no answer is filed in any of the above actions,
the court shall order the prosecuting attorney to investigate
whether or;,not collusion exists between the parties.. If thhe is
no collus1ort, the court shall orde/said prosecuting attorri�y to
intervene for the State in order tci see to it that the evidence
submitted 1s not fabricated (Sec. 3[e}, Rule 9, Rules of Co.urt).
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 (Sec. 3, Rule 9, Rules of Court).
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 (Sec. 3[c], Rule 29, Rules of Court); or
(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 pa'lty fails to serve answers to
interrogatories (Sec. 5, Rule 29, Rules of Court).
failure i:o file response under the Rules of Procedure for
Small Claims Case (Bar 2012)
A motion to declare the defendant in default is a prohibited
motion under Sec. 16(h) of the Rules of Procedure for Small
Claims Cases.
"SEC. 14. Effect ofFailure to File Response. -Should
the defendant fail to file his/her/its Response within the
required period, and likewise fail to appear on the date
set for hearing, the court shall render judgment on the
same day, as may be warranted by the facts alleged in the
Statement of Ciaim/s. Should the defendant • fail to file his/
CHAPTER IV 345
PLEADINGS AND MOTIONS
her/its Response within the required period but appears
on the date set for hearing, the court shall ascertain what
defense he/she/it has to offer which shall constitute his/
her/its Response, and proceed to hear or adjudicate the
case on the same day as if a Response has been filed" (Sec.
14, A.M. No. 08-8- 7-SC, Rules of Procedure for Small
Claims Cases as amended).
. \t '· :
Failure to file a return under the Rules on the Writ of Amparo
. ',
1. The Rules on the Writ of Amparo prohibits, under
Sec. l l(h) thereof, a motion to declare the respondent in
default.
2. Upon the service of the writ of amparo, th e
respondent is required to file a verified written return which,
among others, contains his lawful defenses (Sec. 9, Rule on th e
Writ of Amparo). In case the respondent - fails to file a return,
the court, justice or judge shall proceed to hear the petiti On
ex parte (Sec. 12, Rules on the Writ of Amparo). Obviously,
no motion from the petitioner is required before hearing t tie
petition.
Failure to file a return under the Rules on the Writ of f-Jabeas
Data
1. The Rules on the Writ of Habeas Data, under Sw. ec
.
13(h) thereof, does not.allow the filing of a motion to declar e
the respondent in default.
2. If the respond_ent fails to file his return which
contains, among others, his lawful defen,ses, the court, justi ce
or judge shall proceed to hear the petition ex parte, grantin g
the petitioner such relief as the petition may warrant, unless
the court, in its discretion, requires the petitioner to submit
evidence (Sec. 14, Rules on the Writ of Habeas Data).
Failure to file an answer under the 1991 Revised Rules on
Summary Procedure (Bair 2012; 2017)
A motion to declare the defendant in default is
prohibited motion under Sec. 19(h) of the 1991 Revised Rule
on Summary Procedure. Bar 1988
346 CML PROCED URE,VOLUMEI
THE BAR LECTURES SERIES
Under the Rules on Summary Procedure, the defendant
who fails to file an answer within the reglementary period of
10 days from service of summons pursuant to Sec. 5, Part II,
1991 Revised Rules on Summary Procedure, is not supposed
to be declared in default. Instead, the court motu proprio, or
on motion of the plaintiff, sh;:ill render judgment (n9t declare
the d�fendant in default) as_:;,may be warrante_d by\the facts
alleg�d in the complaint and limited to what is prayed for
(Sec. 6; Part IL 1991 Rules on Summary Procedure)..:This rule
represents a principal distinction between the effect of failure
to answer in ordinary civil proceedings and in the rules on
summary procedure. Bar 1988; 2017
3, COUNTERCLAIM
Nature of a counterclaim (Bar 1999; 2007; 2010); kinds
1. A counterclaim is any claim which a defending party
may have against an opposing party (Sec. 6, Rule 6, Rules
of Court; Alba u. Malapajo, G.R. No. 198752, January 13,
2016; Sy-Vargas u. The Estate of Ogsos, Sr., G.R. No. 221062,
October 5, 2016). It partakes of a complaint by the defendant
against the plaintiff. A counterclaim is described by the Rules
of Court as any claim. Hence, this claim may be a claim for (a)
i:n;oney, or (b) some other relief against an opposing party.
2. A counterclaim is in itself a distinct and independent
cause of action and when filed, there are two simultaneous
actions between the same parties (Padilla u. Globe Asiatique
Realty Holdings Corporation, G.R. No. 207376, August 6,
2014). When the defendant files a counterclaim against the
plaintiff, the former becomes the plaintiffin the counterclaim
·while the original plaintiff becomes the defendant. The filing
of a counterclaim gives rise to two complaints, namely, the
one filed by the plaintiff by way of an original complaint O
and
the one filed by the defendant by way of a counterclaim.
Take an example in which PP files a complaint for
unlawful detainer against DD. The latter files an answer
together with a claim for reimbursement of all the expenses
CHAPTER IV 347
PLEADINGS AND MOTIONS
he incurred in repairing the building subject of the lease.
The claim for reimbursement is a counterclaim and is in the
nature of a complaint by the defendant against the plaintiff.
3. A counterclaim is not intrinsically a part of the
answer because it is a separate pleading. It may, however, be
included in the,answer. This inclusion is merely a matter of
form and does\riot have the effect of(ttsing the two separatl:!
pleadings into. a single pleading. Thus, it is not uncommon
to denominate: these two pleadings· as: "Answer With A
Counterclaim."
Note, however, that a "Motion to Dismiss With A Coun­
terclaim" is not an accepted way of pleading a counterclaim.
It is sanctioned neither by the Rules nor common usage. Bar
1992;201()8
Compulsory and permissive counterclaims
A counterclaim may be compulsory or permissive. A
①
compulsory counterclaim is one that (1) arises out of (or is
necessarily connected with) the transaction or occurrence that
is the subject matter of the opposing party's claim; (2) falls
within the jurisdiction of the court; and (3) does not require
for its adjudication the presence of third parties over whom
the court cannot acquire jurisdiction. Such counterclaim must
be within the jurisdiction of the court both as to the amount
and the nature thereof (Alba v. Malapajo, supra).
②
On the other hand, a counterclaim is permissive if it
does not arise out of or is not necessarily connected with the
subject matter of the opposing party's claim. It is essentially
an independent claim that may be filed separately in another
case (Sy-Vargas u. The Estate of Ogsos, Jr., supra).
C@mp1.n!sory courrterciaim; tests
1. To be compulsory, the counterclaim, according to the
Rules, must have the following elements:
(a) It arises out of or is necessarily connected with
the transaction or occurrence which is the subject matter
of the opposing party's claim;
348 CMLPROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
(b) It does not require for its adjudication the
presence of third parties over whom the court cannot
acquire jurisdiction; and
(c) It is cognizable by the regular courts of justice
and such courts have jurisdiction to entertain the
counterclaim both.1as to the amount. and nature (Sec.
:;;: 7, Rule 6, RuleJ bf(Court; Metropolitan Ednk and Trust
Company v. CPR Promotions and Marketing, Inc., G.R.
No. 200567, June 22, 2015; see also G. Holdings, Inc. v.
Cagayan Electric Power and Light Company, Inc., G.R.
No. 226213, September 27, 2017).
2. Based on the Rules, the Court has devised a more
complete test, thus:
(a) Are the issues of fact and law raised by the
claim and the counterclaim largely the same?
(b) Would res judicata bar a subsequent suit on
defendant's claims, absent the compulsory counterclaim
rule?
(c) Will substantially the same evidence support
or refute plaintiffs claim as well as the defendant's
counterclaim?
(d) Is ther.e any logical relation b�tween the claim
and the counterclaim?
A positive answer to all questions would indicate that
the counterclaim is compulsory (See Lasala v. National Food
Authority, G.R. No. 171582, August 19, 2015). Of the four, the
-
one compelling test is the logical relation between the claim in
the complaint and that in the counterclaim (Sy- Vargas v. The
-
Estate of Ogsos, Sr., G.R. No. 221062, October 5, 2016; Alba v.
.Malapajo, C.R. No. 198752, January 13, 2016).
3. A counterclaim is compulsory under the following
facts: Aya sues Lea for recovery of a tract of land. Lea seeks
in turn to be reimbursed the value of the improvements she
has introduced in the same land and the payment of damages
she has sustained as a consequence of the suit. The claim of
CHAPTER IV 349
PLEADINGS AND MOTIONS
Lea arises out of or is necessarily connected with the subject
matter of the complaint. Bar 1985; 1994
In actions to recover possession of real property, it has
been held that a claim for compensation for improvements
on land partakes of the nature of a compulsory counterclaim
(Beltran v.'. Balbuena, 53 Phil. 697, 701; Meliton v.. Court of
Appeals, 216 SCRA 485, 493). · i:;.' O '.
?
,1. The most common compulsory counterclaim filed by
the defendant, in the absence of any other counterclaim, is to
claim in the same suit his expenses for being forced to litigate
in the face of an allegedly unfounded and baseless complaint.
Added to these expenses are the alleged damages he sustained
as a consequence of the unfounded complaint. Bar 2007; 2008
5. The mere logical connection between the complaint
and the counterclaim will not give rise to a compulsory
counterclaim where the counterclaim is not within the
jurisdiction of the court. If the amount of the counterclaim
exceeds the jurisdiction of the court, the counterclaim should
be deemed permissive, not compulsory. Thus, a counterclaim
for P500,000 in the Metropolitan Trial Court of Manila
cannot be considered a compulsory counterclaim since the
amount exceeds the court's jurisdiction even if, assuming, it is
intimately connected with the subject matter of the complaint.
if - the counte�claim in an amount in excess of the
jurisdiction of the court is interposed in the same action, and the
court finds both the complaint and counterclaim meritorious,
it will not grant the relief in the complaint on the ground that
the defendant has a bigger credit (Calo v. Ajax International,
Inp., 22 SCRA 996, 999; Reyes v. Court of Appeals, 38 SCRA
138, 151). It is submitted that if the_ defendant desires to
have affirmative relief on his counterclaim, he may waive the
amount in excess of the jurisdiction of the court.
6. There may be instances when the court has to
dismiss the counterclaim for lack of jurisdiction over the
subject matter. If, for instance, the counterclaim interposed in
the Regional Trial Court is one for unlawful detainer, the same
cannot be invoked as a counterclaim in the same action even
350· CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
if the amount of rentals or damages is within the jurisdiction
of such court. A Regional Trial Court cannot adjudicate upon
an unlawful detainer case. Also, a counterclaim for illegal
dismissal cannot be entertained by regular courts for want of
jurisdiction. The subject matter of the counterclaim is within
the jurisdiction of Labor Arbiters. .·
:_,,. . Ji. ·,-t; . i,'.;\. ,.�:
The abserice ·\ cff jurisdiction to entett°ain a counterclaim
because of the amount thereof appropriately applies to
a Municipal Trial Court and equ1.valent courts. Hence,
a Municipal Trial Court in Bulacan will not have the
jurisdiction to take cognizance of a counterclaim in excess of
P300,000 and a Metropolitan Trial Court of Manila cannot
assume jurisdiction over a counterclaim in excess of P400,000.
The rule requires that the counterclaim "must be within the
jurisdiction of the court both as to the amount and the nature
thereof' (Sec. 7, Rule 6, Rules of Court).
The result will differ, however, when the original action
is filed with the Regional Trial Court. In this court, the
counterclaim may be deemed compulsory regardless of the
amount (Sec. 7, Rule 6, Rules of Court). Hence, a counterclaim
of P350,000 filed with the Regional Trial Court of Manila is
still a compulsory counterclaim even if the court would have
no jurisdiction over the amount claimed if it is filed as an
original complaint.·
Sec. 7 of Rule 6 of the Rules of Court leaves no doubt as
to the exact rule. It clearly provides that "x x x in an original
action before the Regional Trial Court, the counterclaim may
be considered compulsory regardless of the amount." Bar
2017
The need to set up a compulsory counterclaim in the same
action
A compulsory counterclaim should be interposed at the
time the defending party files his answer; otherwise, it will be
effectively barred (Metropolitan Banh and Trust Company v.
CPR Promotions and Marketing, Inc:, G.R. No. 200567, June
22, 2015), Another case similarly declares that a·compulsory
CHAPTER IV 361
PLEADINGS AND MOTIONS
counterclaim must be set up in the same action; otherwise,
it would be barred forever. If it is filed concurrently with notfired -
the main action but under a separate complaint, it would be
dismissed on the ground of litis pendencia; if it is subsequently
filed after the main action, it would also be dismissed on th e
grot1;nd of res judicata (Albq, v. Malapajo, supra). ↳ theme is already decision a
··;i_ ..
lnco�patibility betwe�n a compulsory coullterclaim and a
motion to dismiss
A party who desires to plead a compulsory counterclaim
should not file a motion to dismiss. If he files a motion to dismisi
:
and the complaint is dismissed, there will be no chance to
invoke the counterclaim. The better move is to file an answe:i:
with a counterclaim and plead the ground for dismissal as a
affirmative defense.
As succinctly put in one case:
"A compulsory counterclaim is auxiliary to the
proceeding in the original suit and derives its jurisdictional
support therefrom. A counterclaim presupposes
the existence of a claim against the party filing the
counterclaim. Hence, where there is no claim against
the counterclaimant, the counterclaim is improper and it
must 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 standsto 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
counterolaim.
Thus, the filing of a motion to dismiss and the
setting up of a compulsory counterclaim are incompatible
remedies. In the event that a defending party has a ground
for dismissal and a compulsory counterclaim at the same
-time, he must choose only one remedy. If he decides
to file a motion to dismiss, he will lose his compulsory
counterclaim. But if he opts to set up his compulsory
counterclaim, he may still plead his ground for dismissal
 352 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
as an affirmative defense in his answer" (Financial
Building Corporation u. Forbes Park Association, 338
SCRA 346, 354).
. Pe.rmissive counterclaim (Bar 2011)
1. Gener.ally, a counterclaim is permissive if any of the'.
elements of a cofupulsory countercl�irrt:discussed previously if;
0
absent. But the most commonly treated feature of a permissive
counterclaim is •its absence of a logical connection with the·
subject matter of the complaint, i.e., it does not arise out of or
is not connected with the plaintiffs cause of action.
A counterclaim is permissive if it does not arise out of
or is not necessarily connected with the subject matter of
the opposing party's claim. It is essentially an independent
claim that may be filed separately in another case (Alba v.
quasi delict
lVIalapajo, G.R. No. 198752, January 13, 2016). A counterclaim
for damages based on culpa aquiliana in a complaint for fault which
# an
-
collection of a loan is a permissive counterclaim for not having
a connection with the plaintiffs claim. Such counterclaim may contract
even be made the subject of an independent action.
2. A counterclaim for damages based on a quasi-delict
cannot be pleaded as a compulsory counterclaim in an action
for unlawful detainer. The counterclaim is permissive (Arenas
v. Court of Appeals, 345 SCRA617, 625-626).
3. A counterclaim for the payment of the price of the
car is not a compulsory counterclaim in an action to recover a
piece of land. Bar 1996
4. One case demonstrates the existence of a compulsory
counterclaim. Here, the plaintiff filed an action to annul a
deed of sale and recover ownership of a real property from
the defendants. He alleged that the deed of sale in favor of
the defendants was a forgery. The defendants, who denied
the forgery, filed their answer with a counterclaim that, in
case the deed of sale is declared null and void, they be paid
by the plaintiff the amount of the loan extended to the latter
and which were secured by a real estate mortgage covering
the subject property. The plaintiff, who contended that the
CHAPTER IV 353
PLEADINGS AND MOTIONS
counterclaim was permissive, filed a motion to dismiss the
counterclaim on the ground of lack of jurisdiction for the
failure of defendants to pay the required docket fees and to
attach a certification against forum shopping.
The Court held the counterclaim to be connected with
the transaction or occurrence
1 constituting the.$ubject matter
cif'.'the opposing party's c1aim. There is a lbgitj�l relationship
be;tween the claim and the counterclaim. It_ is, hence, a
compulsory counterclaim. The same evidence to sustain the
counterclaim would disprove the case of the plaintiff. There
is, therefore, no need for respondents to pay docket fees and
to file a certification against forum shopping for the court
to acquire jurisdiction over the counterclaim (Alba, Jr. v.
111alapajo, supra).
Distinctions between a compulsory and a permissive
-
counterclaim
act omission dueto
of
damage
carries
another
to not due to
and
The following are the most significant distinctions
.
between a compulsory and permissive counterclaims:
(a) A compulsory counterclaim, which a party has
at the time the answer is filed, shall be contained in
the answer (Sec. 8, Rule 11, Rules of Court) because a
compulsory counterclaim not set up shall be barred (Sec.
2,' Rule 9, Rides· of Court; Maltos V. Heirs �! Bo�romeo,
G.R. No. 172720, September 14, 2015).
A permissive counterclaim is not subject to the above
rule. Hence, it may be set up as an independent action
and will not be barred if not contained in the answer to
the complaint (See Sy- Vargas v. The Estate of Ogsos, Jr.,
G.R. No. 221062, October 5, 2016).
(b) A compulsory counterclaim is 0
not an initiatory
pleading. A permissive counterclaim is considered an
initiatory pleading.
(c) A permissive counterclaim should be accompa­
nied by a certification against forum shopping and, when­
ever required, also a certificate to file action issued by

354 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
the Lupong Tagapamayapa. A compulsory counterclaim,
which cannot be independently set up, does not require
the certificates mentioned because it is not initiatory in
character (Santo Tomas University v. Surla, 294 SCRA
382, 392-393; Ponciano v. Parentela, 331 SCRA 605, 611). _
The certificates mentioned are required to be attaGhed
in:a p�rmissive counterciairi±'because
.... it is an ihitiAtory
- ...
pleading. Bar 2007
(d) A permissive counterclaim must be answered
it
by the party against whom it is interposed; otherwise,
he may be declared in default as to the counterclaim.
This is because "Any pleading asserting a claim must be
answered and the failure to do so by the party against
whom the claim is asserted renders him to be declared in
default in respect of such claim" (Sarmiento v. Juan, 120
SC.RA 403, 408).
Failure to answer a compulsory counterclaim is
not a cause for a default declaration (Gojo v. Goyala, 35
SCRA 557, 563). A compulsory counterclaim that merely
reiterates special defenses are deemed controverted
even without a reply, or raises issues, which are deemed
automatically joined by the allegations in the complaint,
need not be answered. In such a case, failure to answer
a compulsory �011,.nj;�rcla,im may not _b _e . a _ca:w,e for a
declaration of default (Gojo v. Goyala, ibid.).
Thus, if the plaintiff files an action to recover
possession of real property against the defendant who
interposed a counterclaim for damages and attorney's fees
arising from the filing of the complaint, the counterclaim
need not be answered by the plaintiff. A motion to declare
him in default for failure to answer the counterclaim
must be denied because the counterclaim is compulsory.
Bar 1996
On the other hand, if the counterclaim is for damages
arising from the alleged tortious conduct of the plaintiff in
a complaint to coilect a sum of money, the defendant may
file a motion to declare the plaintiff in default if he fails
to file an answer to the counterclaim ,¥hich is perrnissive.
CHAPTER IV 355
PLEADINGS AND MOTIONS
(e) The docket and other lawful fees should be paid
for a permissive counterclaim (La Tondefia Distillers, Inc.
v. Court of Appeals, 209 SCRA 553, 573-574). The rule
in a permissive counterclaim is that for the trial court
to acquire jurisdiction, the counterclaimant is bound to
pay the prescribed docket fees. If a party does not pay
the docket .fees, the court does not acquire jurisdiction
over his permi§sive counterclaim,'and.')my order in favor:
of the cou�terclaimant arising from the counterclaim is
considered nulf and void, and may be struck down even
632 SCRA 5, 13-
on appeal (GSIS v. Heirs of Caballero,
.
1-0
Traditional jurisprudence has consistently held tha•·
docket fees are not paid for a compulsory counterclaim
(Cabaero v. Cantos, 271 SCRA 391, 400; l'Vletals Engineer-in :
Resources Corporation v. Court of Appeals, 203 SCRA 27>J,
285). Bar 2008
Caveat: Be it noted that Rule 141 on Legal Fees was revised
effective August 16, 2004by A.M. No. 04-2-04-SC. The revisior
included the payment of docket fees not only for permissive
counterclaims but also for compulsory counterclaims and
cross-claims, third-party complaints, fourth-party complaints,
etc., and complaints-in-intervention.
One case, Korea Technologies Co., Ltd. v. Lerma, 54c,
SCRA 1, 16-17, acknowledged:
"On July 17, 1998, at the time PGSMC filed its
Answer incorporating its counterclaims against KOGIES,
it was not liable to pay filing fees for said counterclaims
being compulsory in nature.. We stress however, that
effective August 16, 2004, under Sec. 7 of Rule 141, as
amended by A.M. No. 04-2-04-SC, docket fees are now
required to be paid in compulsory counterclaim or cross­
claims." (Underscoring supplied)
On August 13, 2009, however, the Office of the Cour
Administrator, in OCA Circular 96··2009, clarified that
despite the pronouncement in the said case, the payment of
docket fees for compulsory counterclaim has been suspended
 CMLPROCEDURE,VOLUMEI
356
THE BAR LEC TURES SERIES
as of September 21, 2004. Also, in Sy-Vargas v. The Estate of
Ogsos, Jr., supra, the Court declar�d that "the prevailing rule
with respect to compulsory counterclaims is that no filing fees
are required for the trial court to acquire jurisdiction over the
subject matter."
How to set up an omitted cocmterclaim
A counterclaim not initially set up because of the pleader's
oversight, inadvertence, excusable neglect, or when justice
requires, may be set up, by leave of court, by amendment
before judgment (Sec. 10, Rule 11, Rules of Court). If not set
up in the action, the compulsory counterclaim shall be barred
(Sec. 2, Rule 9, Rules of Court). A permissive counterclaim,
however, will not be barred.
How to set up a counterclaim arising after the answer
A counterclaim, which either matured or acquired by a
party after serving his pleading, may, with the permission of
the court, be presented as a counterclaim by supplemental
pleading before judgment (Sec. 9, Rule 11, Rules of Court).
Period to answer a counterclaim
If a counterclaim is to be answered, the same must be
made within 1D days from service. (Sec. 4, Rule 11, Rules
of Court). This rule has more relevance to a permissive
counterclaim which has to be answered.
Effect of the dismissal of a complaint on the counterclaim
alr�ady set up (Bar 2010)
l. There are three significant situations involving the
dismissal of a complaint and the effect of such dismissal on
the counterclaim already pleaded by the defending party.
(a) The first is the situation contemplated under
the last paragraph of Sec. 6 of Rule 16. Here, the
defendant does not file a motion to dismiss. Instead, he
files an answer and utilizes certa.in grounds for a motion
CH APTER IV 357
PLEADI NGS AND MOTIONS
to dismiss as affirmative defenses. Included in the answer
is a counterclaim. He then asks for a preliminary hearing
on the affirmative defenses set up, which is granted by the
court. During the hearing on the affirmative defenses, the
court decides to dismiss the complaint. If the complaint is
dismissed, the counterclaim, compulsory or permissive,
is not .,,..
dismissed.
,;,."ii,
Sec. tof Rule 16 is explicit:
"The dismissal of the· complaint under this
section shall be without prejudice to the prosecution
in the same or separate action of a counterclaim
pleaded in the answer."
(b) The second situation is covered by Sec.2 of Rul
17. Under this provision, the plaintiffhimselffiles a motion
to dismiss his complaint after the defendant has pleaded
an answer with a counterclaim. The motion is granted by
the court. The rule in this regard is unequivocal:
"... [T]he dismissal shall be limited to th e
complaint. The dismissal shall be without prejudice
to the right of the defendant to prosecute his
counterclaim in a separate action unless within
fifteen (15) days from notice of the motion h
e
manifests his preference to have his counterclaim.
resolved in the same action x x x."
(c) The third situation is covered by Sec. 3 of
Rule 17. Here, the complaint is dismissed through the
plaintiffs fault and at a time when a counterclaim
has already been set. up. Like the first two situations,
the dismissal is "without prejudice to the right of the
defendant to prosecute his counterclaim in the same or
separate action."
2. The above.described situations have a common
thread mnning
1- through them.The rules cited recognize the
right of the defending party to prosecute the counterclaim in
the same or separate action notwithstanding the dismissal
358 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
of the complaint, and without regard as to the permissive or
compulsory nature of the counterclaim. With the aforestated
rules in effect since July 1, 1997, previous jural pronounce­
ments in conflict with the same have been abandoned (See
Pinga u. Heirs of Santiago, 494 SCRA 393, 413; See also
Lim Tech Chuan u. Uy, G.R. No. 155701, March 11, 2015).
As .the rule now stands/ the nature of the counterclaim
notWithstanding, the disrrli�sal of the complaint tlbes not ipso
jure _result in the dismissal of the counterclaim (IJio u. Subic
Ba)' Marine Exploratorium, Inc., G.R. No. 189532, June 11,
2014).
There is a difference between a dismissal of an action
and a dismissal of the complaint. If only the complaint is
dismissed, not the action, the defendant may still prosecute
his counterclaim. The case of Pinga u. Heirs of Santiago, 494
SCRA 393, abandoneq, the rulings in Metals Engineering
Resources Corporation · u. Court of Appeals, 203 SCRA 273
(1991); International Terminal Services, Inc. u. Court of
Appeals, 214 SCRA 456 (1992); and BA Finance Corporation
u. Co., 224 SCRA 163 (1993) (Lim Teck Chuan u. Uy, G.R. No.
155701, 11/larch 11, 2015).
Options of the defendant who has pleaded a counterclaim
The defendant who has pleaded a counterclaim prior to
the service upon him of a motion to dismiss by the plaintiff,
may, prosecute his counterclaim either in a separate action
or in the same action. If he desires to have his counterclaim
resolved in the same action, he must manifest to the court his
preference to that effect within 15 days from notice to him of the
plail).tiff's motion to dismiss. If he makes no such I?anifestation,
the counterclaim shall be prosecuted in a separate action (See
Sec. 2, Rule 17, Rules of Court). The rule instructs that the
dismissal of the complaint will not automatically result in the
prosecution of the counterclaim in the same action because the
rule requires the defendant to make the proper manifestation
of his desire to have his counterclaim resolved in the same
action in which the complaint was dismissed (For further
readings, see Blay u. Bafia, G.R. No. 232189, March 7, 2018).
CHAPTER IV 359
PLEADINGS AND MOTIONS
Quoting Justice Florenz Regalado, the Court teaches:
"Under this revised section, where the plaintiff moves
for the dismissal of the complaint to which a counterclaim
has been interposed, the dismissal shall be limited to the
complaint. Such dismissal shall be without prejudice to
the right of the defendant to either prosecute his action
or to have the same resolved in the same action. Should
he opt fd;: the first alternativi, th� court should render
the corresponding order granting :and reserving his right
to prosecute his claim in a separate action. Should he
choose to have his counterclaim disposed of in the same
action wherein the complaint had been dismissed, he
must manifest within 15 days from notice to him of the
plaintiffs motion to dismiss xxx" (Blay u. Bafia, G.R. No.
232189, March 7, 2018).
4. CROSS-CLAIM
Nature of a cross-claim
1. 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. The cross-claim may include a claim that the party
against whom it is asserted is liable, or may be liable to the
cross-claimant for all or part of a claim asserted in the action
against the cross-claimant (Sec. 8, Rule 6, Rules of Court).·
2. While a counterclaim is asserted by a defending party
against a claimant, a cross-claim is asserted· by a defending
party against a co-defending party so that the latter may be
held liable for the claim which the claimant seeks to recover
from the cross-claimant. If XYZ Bank sues A and B for the
collection of a loan, A, who merely acted as an accommodation
party, may file a cross-claim against his co-defendant, B, by
asserting that it is B who is the actual and true debtor and,
hence, should be ultimately liable for the payment of the loan.
Bar 1997
3. A cross-claim that a party has at the time the a{i_swer
is filed shall be contained ih said answer (Sec. 8, Rule 11, Rules
360 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
of Court). A cross-claim that is not set up shall be barred (Sec.
2, Rule 9, Rules of Court).
The cross-claim must be set up in the action because, if
not set up, it shall be barred (Sec. 2, Rule 9, Rules of Court).
Note, however, that the cross�claim that shall be barred, if not
asserted, is the cros.s-claim already existing at the time the
answer is filed, riot}the cross-claim that n:ia:y mature or may
be acquired aftet sef;ice of the answe/.As itb the latter, Sec. 9·
of Rule 11 declar.es that it may, by permission of the court, be
presented by supplemental pleading before judgment.
No cross-claim for the first time on appeal
While a defendant may have a definite cause of action
against a co-defendant, it cannot succeed in seeking judicial
sanction against the latter if the records disclose that no
cross-claim was interposed, nor was there a prayer that the co­
defendant should be liable for all claims that may be adjudged
in favor of the plaintiff. Under the Rules, a cross-claim not set
up shall be barred. Thus, a cross-claim cannot be set up for
the first time on appeal (Loadmasters Customs Services, Inc.
u. Glodel Brokerage Corporation, 639 SCRA 69, 86).
Distinctions between a counterclaim and a cross�claim (Bar
1999)
1. A cross-claim is a claim against a co-party; a
counterclaim is a claim against an opposing party; and
2. A cross-claim must arise from the transaction or
occurrence that is the subject matter of the original complaint
or counterclaim (Sec. 8, Rule 6, Rules of Court). A counterclaim
may or may not arise out of the subject matter of the complaint.
It may be compulsory or permissive.
How to set up a cross�claim arising after the answer
A 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 cross-claim by supplemental
pleading before judgment (Sec. 9, Rule 11, Rules of Court).
CHAPTER IV 361
PLEADINGS AND MOTIONS
How to set up an omitted cross-claim
When a pleader fails to set up a cross-claim through
oversight, inadvertence or excusable neglect, or when justice
requires, he may, by leave of court, set up the cross-claim by
amendment before judgment (Sec. I 0, Rule 11, Rules of Court). .
Period:to
� . answer a cross-:-clair,h
' .
,, :, ,;�
A c.ross-claim must be answered within 10 days from
service (Sec. 4, Rule 11, Rules of Court).
5. THIRD (FOURTH, ETC.)-PARTY COMPLAINT
Nature of a third-party complaint
1. A third-party complaint is a claim which a defending
party may, with leave of court, file against a person who is
not yet a party to the action for contribution, indemnity,
subrogation or any other relief, in respect of his opponent'
claim (Sec. 11, Rule 6, Rules of Court). There could also b ea
fourth, etc.-party complaint with the same function as a third­
party complaint.
2. A third-party complaint is actually a complaint
independent of, and separate and distinct from the plaintiffs
complaint. Were it not for the. above rule, such third-party
. complaint would have to be.filed independently ahd separately
from the original complaint. The purpose is to avoid circuitry
of action and unnecessary proliferation of lawsuits and dispose
expeditiously in one litigation all the matters arising from one
particular set of facts.
Trial courts are not especially enjoined by law to admit
a third-party complaint. They are vested with discretion to
allow or disallow a party to an action to implead an additional
party. Thus, a defendant has 0 no vested right to file a third­
party complaint (China Banhing Corporation u. Padilla, 514
SCRA 35, 42).
3. It is not proper to file a third-party complaint against
one who is already a party to the action such as against the
362 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
plaintiff or a co-defendant. A claim against the plaintiff is
asserted by way of a counterclaim. A claim by the defendant
against his co-defendant is set up by way of a cross-claim.
Thus, if Mr. .S sells a car to Mr. B, and later, the real owner
of the car, Mr. 0, files an action against Mr. B to recover the
car, Mr. B may file a: third-party complaint against Mr. S to
require the latt�;r to answer for the. hre,�ch of warranty against
eviction (Art. 1558, Civil Code of the [thilippines). .-·
Also, if the passenger of a taxicab sues the operator for
breach of contract of carriage because of injuries he sustained
in a mishap, the operator may file a third-party complaint
against the negligent driver for reimbursement.
4. Band C borrowed P400,000 from A. B, who received
the money from A, gave C P200,000. C, in turn, gave by way of
loan, Pl00,000 to D. C, if sued, can file a third-party complaint
against D. Bar 1997
A assembles an owner-type jeep for B who, in turn, rents
it to X. Due to faulty brakes, X figures in a vehicular accident
causing him severe injuries. If X files an action for damages
against A and B, B cannot file a third-party complaint against
A because both are already parties to the action. B should
instead file a cross-claim against A. Bar 1996
Leave· of court
The filing of a third-party complaint requires leave of
court (Sec. 11, Rule 6, Rules of Court) and, hence, its admission
is subject to judicial discretion. Leave of court is not required
in filing a counterclaim or a cross-claim because the parties
involved are already parties to the action.
Answer to a third--pmi:y complaini:
The time to answer a third-party complaint shall be
governed by the same rule as the answer to the complaint
(Sec. 5, Rule 11, Rules of Court); hence, within 15 days from
service of summons (Sec. 1, Rule 11, Rules of Court).
CHAPTER IV 363
PLEADINGS AND MOTIONS
6. INTERVENTION
Nature of intervention {Bar 2011)
1. Intervention is a remedy by which a third party, not
originally impleaded in the proceedings, becomes a litigant
therein to enable him, her or it to p"rotect or preserve a right
.or iJlterest which may/be ,�ffected by such p:;:oc��dings. It is
a proceeding in a suit or':a:ction by which a third person is
permitted by the court to make himself a party, either joining
the plaintiff in claiming what is sought by the complaint,
or uniting with the defendant in resisting the claims of the
plaintiff, or demanding something adverse to both of them.
It is an act or p,roceeding by which a third person becomes a
party in a suit pending between others for the protection of
some right of interest alleged by him to be affected by such
proceedings (Mactan-Cebu International Airport Authority v.
Heirs of Minoza, 641 SCRA 520, 529-530; See also Chipongian
v. Benitez-Lirio, G.R. No. 162692, August 26, 2015; Office of
the Ombudsman v. Gutierrez, G.R. No. 189100, June 21, 2017;
National Housing Authority v. Laurito; G.R. No. 191657, July
31, 2017).
2. 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 (SM
Land, Inc. v. Bases Conversion and Development Authority,
G.R, No. 203655; September 7, 2015,: Aguinaldo v. Aquino
IIL G.R. No. 224302, November 29, 2016). The allowance or
disallowance of a motion for intervention rests on the sound
discretion of the court after consideration of the appropriate
O
circumstances. It is not an absolute right (Mactan-Cebu
International Airport Authority v. Heirs of Mifioza, 641 SCRA
520, 531-532).
3. Intervention is never an independent proceeding
but ancillary and supplemental to an existing litigation and
in subordination to the main proceeding (Saw v. Court of
Appeals, 195 SCRA 740, 746).
4. An intervention cannot alter the nature of the action
and the issues already joined (Castro v. David, 100 Phil. 454,
458). Bar 2011
364 CIVIL PROC ED URE, VOLUMEI
THE BAR LECTURES SERIES
In general, 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 (Mactan-Cebu International
Airport Authority v. Heirs of Miiioza, 641 SCRA 520, 531-532).
Simply put, the intervenor is not allowed to raise issues that ·
are not within the mainstream of the original action. Bar 2011
:•'ii •' )'. >:
Requisites for intervention (Bar 2000)
1. Section 1, Rule 19 of the Rules of Court states:
"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."
2. Under above Rule, intervention shall be allowed
when a person has
%
(a) a legal interest in the matter in litigation; or
(b) a legal interest in the success of any of the
parties; 0
or
(c) an interest against both parties; or
(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 (Mactan-Cebu
International Airport Authority v. Heirs of Miiioza, 641
SCRA 520, 530; Fernandez v. Court ofAppeals, 691 SCRA
167, 192-193, February 19, 2013; See also, Enriquez Vda.
De Santiago v. Suing, G.R. No. 194814, October 21, 2015).
3. Notice that intervention is not a matter of right.
It is subject to judicial discretion. In granting or denying
CHAPTERIV 365
PLEADINGS AND MOTIONS
the intervention, the court is required to balance certain
considerations:
(a) whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the
_ original parties; and
(b) whether or not the intervenor's rights may be
fully protect'.ed i:ri a separate procee.ding':(Sec. 1, Rule 19,
:•·!,.
the Rules of Court).
Meaning of legal interest
1. 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.
Thus, it was ruled that when the title to the property had
been already declared void by final judgment, intervention
will not revive or reinstate the movant's title derived from the
title declared void because there is no more legal interest in
the matter in litigation (See Firestone Ceramics v. Court of
Appeals, 313 SCRA 522).
2. 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, proceedings would become unnecessarily
complicated, expensive and interminable (Mactan-Cebu
International Airport Authority v. Heirs of Miiioza, 641 SCRA
520, 531; See also Ndtional Housing Authority v. Laurito, G.R.
No. 191657, July 31, 2017).
3. In an action for foreclosure of mortgage, the alleged
owners of the land sought to be foreclosed may intervene.
They have an interest in the matter in litigation of such direct
and immediate character that they stand to gain or loss by
the direct legal operation and effect of the judgment (Roxas v.
Dinglasan, 28 SCRA 430, 433).
366 CIVIL PROC ED URE, V OLUMEI
THE BAR LEC T URES SERIES
4. "A corporate stockholder cannot, merely on the basis
of being a stockholder, have a legal right to intervene in cases
involving corporate assets. A shareholder is not an owner of
corporate property, which is owned by the corporation as an
entity with a separate personality of its own. While a share
of stock represents a proportionate interest of a shareholder ·
in the , property of the corp9ration, it does no! v��t upon
him· ai:iy legal right or title H;o any of the property of the
corporation. The• interest which entitles a person to intervene
in a suit between other parties 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.
However, the interest of a stockholder in corporate property
is indirect, contingent, remote, conjectural, consequential and
collateral. At the very least, the interest is purely inchoate,
or in sheer expectancy of a right in the management of the
corporation and to share in the profits thereof and in the
properties and assets thereof on dissolution, after payment of
the corporate debts and obligations" (Magsaysay-Labrador v.
Court of Appeals, G.R. No. 58168, December 19, 1989; see also
Saw v. Court of Appeals, G.R. No. 90580, April 8, 1991; For
further readings, see Asia's Emerging Dragon Corporation v.
Department of Transportation and Communications, G.R. No.
169914, March 24, 2008).
5. The justification of one's "sense of patriotism
and a common desire to protect and uphold the Philippine ·
Constitution" is not sufficient. This is true even if the
intervenors in a quo warranto petition against a sitting justice
of the Supreme Court are Senators of the Republic who would
be sitting in the impeachment trial as Senators-judges if the
articles of impeachment will be filed before the Senate. The
interest contemplated by law must be actual, substantial,
material, direct and immediate, and not simply contingent or
expectant. Moreover, the petition of quo warranto is brought
in the name of the Republic. It is vested in the people, and
not in any private individual or group. Disputes over title to
public office are viewed as a public question of governmental
legitimacy and not merely a private quarrel among rival
claimants (Republic v. Sereno, G.R. No. 237428, May 11,
2018).
CHAPT ERIV 367
PLEADINGS AND MOTIONS
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 d�penp.s upon the purpose of the intervention.. If
the purpose is t9':assert a claim agairi�t either or all of 'the'·::
original parties, t_he pleading shall be called a complaint-in-
intervention. If the pleadings seek to unite with the defending
party in resisting a claim against the latter, he shall file an
answer-in-intervention (Sec. 3, Rule 19, Rules of Court).
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 (Sec. 4,
Rule 19, Rules of Court).
Time for intervention
The motion to intervene may be filed at any time befor e
rendition of judgment by the trial court (Sec. 2, Rule 19, Rules
of Court; Castro v. Me'ndoza, Sr., G.R. No. 212778, April 26,
2017). Hence, intervention after trial and decision can no
longer be permitted (Yau v. Manila Banking Corporation, 384
SCRA 340, 352; National Housing Authority v. Laurito, G.R.
No. 191657, July 31, 2017). Bar 1991
7. REPLY
Nature of a reply
1. A reply is _a pleading, the function of which is to
deny, or allege facts in denial or avoidance of new matters
alleged by way of defense in the answer and thereby join or
make issue as to such new matters (Sec. 10, Rule 6, Rules of
Court).
2. A reply is the responsive pleading to an answer. It is
not a responsive pleading to a counterclaim or a cross-claim.
The proper response to a counterclaim or cross-claim is an
answer to the counterclaim or answer to the cross-claim.
-
368 CIVILPROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Filing of reply, not mandatory
1. As a rule, the filing of a reply to the answer is
not mandatory and will not have an adverse effect on the
plaintiff. Under Sec. 10 of Rule 6, if a party does not file such
reply, all th(;) new matters alleged _in the answer are deel.lled
controverted or denied. No admission follows from the failure
.to ijle a reply. ,.,;
·,
· 2. Hence, if the answer to the complaint alleges as
a defense the prescription of the action, the failure of the
plaintiff to specifically deny the prescription will not amount
to an admission that the debt has prescribed because the
rule already denies the matter of prescription without the
plaintiff making a specific denial. It is already, as the rule
says, "deemed controverted." Bar 1977; 1996
denied
3. Contrast this with the rule that the failure to
specifically deny the material allegations in the complaint
shall mean the implied admission of such material allegations
(Sec. 11, Rule 8, Rules of Court). Thus, the gist of the rule is:
1=1
The material allegations in the complaint must be specifically
denied but the allegations of new matters or material
allegations in the answer need not be denied because they are
deemed denied by the Rules for the plaintiff.
When filing of reply hf advisable
When the defense in the answer is based upon a written
instrument or document, said instrument is considered an
actionable document (Sec. 7, Rule 8, Rules of Court). Hence,
the plaintiff has to file a reply under oath if he desires to
-
deny specifically the genuineness and .due execution of the
actionable document, and avoid an admission of such matters.
Sec. 8 of Rule 8 clearly provides:
". . . the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse
party, under oath, specifically denies them, and sets forth
what he claims to be the facts ..." (Sec. 8, Rule 8, Rules
of Court).
CHAPTER IV 369
PLEADINGS AND MOTIONS
Period to file a reply
A reply may be filed within 10 days from service of the
pleading responded to (Sec. 6, Rule 11, Rules of Court).
F. AMENDMENT OF PLEADINGS (Rule 10)
How pleadi��s are amended; re'as�·� for allowing amendm�nt.
1. Pleadings may be amended in the following manner:
(1) by adding or striking out an allegation; (2) by adding
or striking out the name of any party; (3) by correcting a
mistake in the name of a party; (4) by correcting a mistaken
or inadequate allegation; (5) by correcting a mistaken or
inadequate description in any other respect (Sec. 1, Rule 10,
Rules of Court; Central Bank Board of Liquidators v. Banco
Filipino Mortgage and Savings Bank, C.R. No. 173
February 21, 2017).
2. 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 (Sec. 1, Rule 10, Rules of Court; Central Bank Board
of Liquidators v. Banco Filipino Mortgage and Savings Banh,
.
C.R. No. 173399, February 21, 2017).
Amendment as a matter of right (Bar 2000; 2012)
1. 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
-
(Sec. 2, Rule 10, Rules of Court; Spouses Tatlonghari v. Bangko
Kabayan-Ibaan Rural Bank, Inc., C.R. No. 219783, Augitst
3, 2016). 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
 370 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
the service of a responsive pleading, a party can amend his
pleading only upon prior leave of court.
Sec. 2 of Rule 10 refers to an amendment made before the
trial court, not to amendments before the Court of Appeals.
The Court of Appeals is vested with discretion to admit or
deny amended petitions filed before it (Navarro v. Vda. De
·}.raroma, 478 SCRA 33'6, ,;; · ,:,
344-345).
2. The right to amend a pleading as a. matter of right
may, according to the Rules, be exercised only once (Sec. 2,
Rule 10, Rules of Court). 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. permission
→
3. Before the service of a responsive pleading, a party
has the absolute right to amend his pleading, regardless of
whether a new cause of action or change in theory is introduced
(Bautista u. Maya-Maya Cottages, Inc., 476 SCRA 416, 419).
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 awtitto command
error is correctible by mandamus (Breslin u. Luzon Stevedo­ an
-
r�ng, 84 Phil. 618, 626-627; Ong Peng v. Custodio, 1 SCRA 780,
784-785) because the trial court's duty to admit an amended
complaint made as a matter of right is purely ministerial toperpronapublicor
(Alpine Lending Investors u. Corpuz, 508 SCRA 45, 48-49).
Amendment made during the pendency of a motion to
dismiss (Sar 1979; 2005; 2014)
1. 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
pleading and its filing does not preclude the exercise of the
plaintiff's right to amend his complaint (Paeste u. Jaurigue, 94
Phil. 179, 181; Republic u. Ilao, 4 SCRA 106, 112; Remington
Industrial Sales u. Court a/Appeals, 382 SCRA 499, 506).
CHAPTER IV 371
PLEADINGS AND MOTIONS
In a case, the defendant, instead of filing an answer, filed
a motion to dismiss on the ground that the plaintiff is not a
juridical person and, thus, cannot be a party to the case. The
plaintiff filed a motion to admit an amended complaint which
was admitted by the trial court.
As to whether or not the: plaintiff could so amend his
complairi.t as a matter of right/ihe Supreme Court reiterated
Aleareofcoutt the rule that a party may amend his pleading once as a matter
askingthe of right at any time before a responsive pleading is-served. The
-
used to describe
court
permission -1006
Court explained that a motion to dismiss is not a responsive
something thatthewutt
doesn't
normally allow
pleading and so the duty of the trial court is to admit the
according to its rules and amended complaint. Such duty is a ministerial one because
procedures
the amendment, under the circumstances, is a matter of right.
.
In fact, the plaintiff should not have filed a motion to admit
the amended complaint (Alpine Lending Investors u. Corpuz,
508 SCRA 45, 48-49).
Assume that PP filed an action based on an oral loan
against DD, who filed a motion to dismiss the complaint fo 1-
failure to state a cause of action, because the allegations in
the complaint do not indicate that the debt is already due and
demandable at the time the complaint was filed. Instead of
opposing the motion, PP filed an amendment to the complaint
court to correct the deficiencies in its allegations. The amendment
inferior
-
is a matter of right and, hence, cannot be refused by the court.
ordering person
a- a
2. Even if the motion to dismiss is granted by the court,
statutory dvtiy .
the plaintiff may still amend his complaint as a matter of right
before the dismissal becomes final as long as no answer has
yet been served. In the words of the Court, the plaintiff, "may
file an amended complaint even after the original complaint
was ordered dismissed, provided that the order of dismissal
is not yet final" (Bautista u. Maya-Maya Cottages, Inc., 476
-
SCRA 416, 419).
-
Following the above rule, an amendment to the complaint
sought to be made one month after notice of the order
dismissing the complaint can no longer be allowed because
the order of dismissal has already become final due to the
failure to perfect an appeal. As a rule, the aggrieved party
 CHAPTER IV 373
372 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES PLEADINGS AND MOTIONS

meant for
must perfect his appeal within the period as provided for by original complaint so long as the amendment is not
G.R. No.
the rule. The rule is mandatory in character. A party's failure delay (City State Savings Bank, Inc. u. Aguinaldo,
to comply with the rule will result in the decision becoming 200018, April 6, 2015).
final and executory and, as such, can no longer be modified or
reversed. Thus, it is beyond the power or jurisdiction of the Amendment to cure a failure to state a caus
e of action (Bar
court which rendered the decision or order to amend or revoke 2004:; 2013)
the same aftedhelapse of the fifteen•dayireglementary period
to file an appeal (National Mines and Allied Workers Union·u. \1. Under Sec. 5 of Rii1e 10, "When issu�s tiot raised by
consent of
Vargas, 539 SCRA 548, 554-555). the p�eadings are tried with the express or implied
as if they had
the parties, they shall be treated in all respects
Amendment by leave of court (Bar 1986; 1994; 2014) been raised in the pleadings x x x."
tions
1. Leave of court is required for an amendment made The first part of Sec. 5 of Rule 10 applies to situa
d in the p lead ings,
after service of a responsive pleading (Sec. 3, Rule 10, Rules of wherein evidence not within the issues raise to. In
not objec ted
Court). This rule assumes more force and effect especially when is offered by the parties during the trial and ed
s are deem
the amendment is substantial since substantial amendments, such a case, said issues not found in the pleading
That bein g
after the service of a responsive pleading, may be made only to have been tried with the consent of the parties.
d in the
upon leave of court. Bar 1994 so, the rule treats the issues as having been raise
pleadings even if not actually raised.
A case of a very early vintage once ruled that the plaintiff, that the
Thus, where the pleadings of the parties disclose
for example, cannot, after defendant's answer, amend his ly the right of
complaint by changing his cause of action or adding a new one only issue presented before the court is mere
to show right
without leave of court (See also Calo and San Jose u. Roldan, ownership over a certain property, any evidence of
issue
76 Phil. 445, 451; Buenaventura v. Buenaventura, 94 Phil. of possession may be objected to as irrelevant to the the
from
193, 196). This ruling, however, can no longer be relevant the case, the concept of ownership being different
owne r may not have the right of
under present rules which allow substantial amendments concept of possession. An
own ed is the objec t of a lease
provided the pleader obtains leave of court and provided the possession as when the property
right to poss essio n was
amendment is not made with intent to delay the proceedings. contract. However, where evidence of be
essio n shall now
Under Sec. 3 of Rule 10, "substantial amendments may be offered without objection, .the issue of poss
s.
made only upon leave of court." The rule continues: "But treated as if the same was raised in the pleading
e a
such leave may be refused if it appears to the court that the 2. Sec. 5 of Rule 10 also covers situations wher
e of actio n. Such
motion was made with intent to delay" (For further readings, cqmplaint insufficiently states the caus
during the
see Ola u. People, G.R. No. 195547, December 2, 2015/ Hence, insufficiency may be cured by evidence presented
a substantial amendment cannot be made without leave of trial without objection. Bar 2004
-

court. Even if the amendment be with leave of court, it still to collect

stands to be eventually rejected where such amendment To illustrate: A complaint filed by a guarantor
a caus e of action
appears to the court to have been made with the intent to a sum of money from the debtor fails to state
itor of the debtor
delay the proceedings. Bar 2018 if the complaint does not allege that the cred
ther e was
has been paid by the guarantor even if in fact
proceedings,
2. As it stands now, a substantiai alteration in the payment. However, if, during. the course of the
objection
cause of action or defense is not a bar to the amendment of the evidence is offered on the fact of payment without
374 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
from the debtor, the defect in the complaint was cured by
the evidence. The plaintiff may, if he desires, then move for
the amendment of his complaint to conform to the evidence
(Philippine Export and Foreign Loan Guarantee Corporation
u. Philippine Infrastructures, Inc., 419 SCRA 6, 14-15).
Also, if'l:.l complaint failed to a,ver the fact that certi:tin
condition'.� pr�cedent were undertak�n 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.
Amendment i:o conform to the evidence (Bar 2004; 2013)
1. In the event that a party presents evidence on a
matter not in issue, the adverse party has a reason to object.
Common reason dictates that a party cannot breach the basic
procedural rule that the trial court can deal only with matters
raised by the parties in their pleadings. Neither can a court
render judgment on a matter not in issue because a judgment
must conform to the pleadings and the theory of the action
under which the case was tried. But when issues not raised in
the pleadings are tried with the express or implied consent of
the parties, such as when no objection is made by either, such
issues not raised shall be treated as if they had been put in
issue in the pleadings (See Sec. 5, Rule 10, Rules of Court).
2. In a situation where issues not raised in the
pleadings are tried with the express or implied consent of the
parties, Sec. 5 of Rule 10 authorizes the amendment of the
pleadings to conform to the evidence upon motion of a party
at any time, even aft_er judgment. This is because the issues
tried shall be treated in all respects as if they had been raised
in the pleadings even if not actually previously raised in the
pleadings. If the parties fail to amend the pleadings, such
failure will not affect the trial of these issues because such
issues are deemed to have been raised in the pleadings of the
parties (Sec. 5, Rule 10, Rules of Court). This provision under
the Rules virtually authorizes an implied amendment of the
pleadings.
CHAPTERN 375
PLEADINGS AND MOTIONS
Under Sec. 5 of Rule 10, "x x x If evidence is objected
to at the trial on the ground that it is not within the issues
made by the pleadings, the court may allow the pleadings to
be amended x x x." Under the same rule, the court "may allow
the pleadings to be amended and shall do so with liberality
. if the presentation of the merits of the action and the ·ends of
/substantial justice.will be subserved ther�by,i x x."
" ; ' ' :" . ·: ' ; ' . �' � ':
It was ruled that the failure of a party to amend a pleading
to conform to the evidence does not preclude an adjudication
on the basis of such evidence which have embodied issues not
raised in the pleadings (Philippine National Bank u. Manalo,
aR. No. 174433, February 24, 2014). The rule itself supports
jurisprudence as it clearly provides "x x x the failure to amend
does not affect the trial of these issues" (Sec. 5, Rule 10, Rules
of Court).
3. Sec. 5 of Rule 10 envisions two situations: The first
is when evidence is introduced on an issue not alleged in th
pleadings and no objection was interposed by the other party.
The second is when evidence is offered on an issue not raised
in the pleadings but an objection was interjected. The rul
in the second scenario is that the court may, nevertheless,
admit the evidence where the objecting party fails to show
that the admission of the evidence would prejudice him in his
defense. The court must, however, give him a continuance to
enable him to meet the new situation (Azola Farms u. Court ol
Appeals, 442 SCRA 133, 141).
No amendment where no cause of action exists
1. May a complaint that has no caus� of action at the
time it was filed, be cured by the accrual of a cause of action
during the pendency of the case?
The question was raised in an early case (Swagman
Hotels and Travel, Inc. u. Court of Appeals, 455 SCRA 175).
When the case was filed, none of the promissory notes subject
of the action was due and demandable but two of the notes
became due during the pendency of the action.

376 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
According to the trial court, as sustained by the Court
of Appeals, Sec. 5 of Rule 10 allows a complaint that does
not state a cause of action to be cured by evidence presented
without objection during the trial. The trial court ruled that
even if the private respondent had no cause of action when he
filed the complaint for a sum of money and damages because
none· of ,the three promissory :hotes was due yet, h�;, could,
nevertheless, recover on the' fir;t two promissory note; which
became �ue during the pendency of the case in view, of the
introduction of evidence of their maturity during the trial.
Speaking through Chief Justice Davide, the Supreme
Court ruled that such interpretation of Sec. 5, Rule 10 of the
1997 Rules of Civil Procedure is erroneous. The Court further
held:
XXX
"Amendments of pleadings are allowed under Rule
10 of the 1997 Rules of Civil Procedure in order that the
actual merits of a case may be determined in the most
expeditious and inexpensive manner without regard to
technicalities, and that all other matters included in the
case may be determined in a single proceeding, thereby
avoiding multiplicity of suits. Section 5 thereof applies to
situations wherein evidence not within the issues raised
i�1 the pl�adings is presented by the parties during the
trial, and to conform to such evidence the pleadings ar�
subsequently amended on motion · of a party. Thus, a
complaint which fails to state a cause of action may be
cured by evidence presented during the trial.
-
"However, the curing effect under Section 5 is
applicable only if _a cau.se of action in fact exists at the
time the complaint is filed, but the complaint is defective
for failure to allege the essential facts. For example, if a
complaint failed to allege the fulfillment of a condition
precedent upon which the cause of action depends,
evidence showing that such condition had already been
fulfilled when the complaint was filed may be presented
during the trial, and the complaint may accordingly be
amended thereafter x x x. It thus follows that a complaint
whose cause of action has not yet accrued cannot be cured
CHAPTER IV 377
PLEADINGS AND MOTIONS
or remedied by an amended or supplemental pleading
alleging the existence or accrual of a cause of action
while the case is pending. Such an action is prematurely
brought and is, therefore, a groundless suit, which should
be dismissed by the court upon proper motion seasonably
filed by the defendant. The underlying reason for this rule
is that a persor:i: should not be summoned. before the public
=
tribunals to answer for complaints ,which are immature"
(Swagmati Hotels and Travel, Inc., si.i;pra at 185-186;
Underscoring supplied).
2. Similarly, in a fairly recent case, the Court held
that "[I]f no right of action existed at the time the action
was commenced, the suit cannot be maintained, even if the
right of action may have accrued thereafter (Central Board
of Liquidators v. Banco Filipino Savings and Mortgage Banh,
G.R. No. 173399, February 21, 2017).
Amendment to correct a jurisdictional defect before a
responsive pleading is served (Bar 2005)
1. A fair reading of jurisprudence recognizes the right.
of a pleader to amend his complaint before a responsiv
=
pleading is served even if its effect is to correct a jurisdictional
defect. The argument that the court cannot allow such typ
of amendment since the court must first possess jurisdiction
over the subject matter of the complaint before it can act on
any amendment has no application upon an amendment that
is made as a matter of right.
In one case involving a litigation over a parcel of land,
the complaint filed with the then Court of First Instance (now
Regional Trial Court) alleged forcible entry. The defendants
filed a motion to dismiss on the ground that the court has no
jurisdiction over an action for forcible entry. Without waiting
for the resolution of the motion to dismiss, the plaintiff
filed an amended complaint which transformed the original
allegations of forcible entry into an action for quieting of title,
an action which, at that time, was solely cognizable by the
Court of First Instance. The trial court admitted the amended
complaint, ordered the defendants to answer it, and denied
 378 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
the motion to dismiss. The Supreme Court sustained the trial
court's order as being consistent with the purpose and spirit of
the Rules (Gumabay v. Baralin, 77 SCRA 258).
2. In another case filed before the City Court of Manila to
recover unpaid rentals with a prayer that an order be issued for
· the.surrender of the premises by the defendant to the plaintiff,
.the:defendant filed a niotioll to dismiss on thegr6ilnd that the
amount sought to be recovered is beyond the jurisdiction of
the court and that there are no allegations in the complaint
showing that the defendant was unlawfully withholding the
premises from the plaintiff. Before action could be taken on
the motion to dismiss, the plaintiff amended the complaint to
include the requisite allegations. The court denied the motion
to dismiss and the opposition to the amended complaint. The
Court ruled that since no responsive pleading was served at
the time of the amendment, the plaintiff had done so as a
matter of course. Reiterating the rule that a motion to dismiss
is not a responsive pleading, the Supreme Court sustained the
trial court (Soledad v. Mamangun, 8 SCRA 11O).
/J\mendment to correct a jurisdictional defect after a
responsive pleading is served
1. An amendment of the complaint to correct a
E
jurisdictional error cannot be validly done after a responsive
pleading is served. The amendment, this time, would require
-
leave of court, a matter which requires the exercise of sound
judicial discretion. The exercise of this discretion requires
the performance of a positive act by the court. If it grants the
amendment, it would be acting on a complaint over which it
has no jurisdiction. Hence, its action would be one performed
without jurisdiction.
The situation is vastly different from an amendment
made as a matter of right. Here, the court does not act. The
admission of the amended pleading is a ministerial duty of
the court. It requires no positive action from the court. Since
it vvould not be acting in this regard, it could not be deemed as
acting without jurisdiction.
CHAPTER IV 379
PLEADINGS AND MOTIONS
2. In one case, a former employee filed an action for
recovery of compensation for unpaid holiday and overtime
services with the then Court of Industrial Relations against
his former employer. The defendant filed a motion to dismiss
but was denied. The defendant-employer then filed an answer,
.invoking as one ofits affirmative defenses, lack of jurisdiction
of the co_urt dver the subject JI\atter since the complaJnt d.id
not allege th� existence of an employer-employee relationship
between the parties. The complaint alleged neither illegal
dismissal nor the reinstatement of the plaintiff. Realizing
a jurisdictional error, the plaintiff filed leave to amend his
complaint and admit the amended pleading alleging illegal
dismissal and a claim for reinstatement. The amended
pleading was admitted.
Speaking on the issue of the propriety of the admission of
the amendment, the Supreme Court ruled that a "complaint
cannot be amended to confer jurisdiction on the court in which
it was filed, if the cause of action originally set forth was not
within the court's jurisdiction" (Campos Rueda Corporation v.
Bautista, 6 SCRA 240, 244).
Note that, in Campos Rueda, an answer has already
been served and filed. The result would have been different
had the amendment been made before the answer had been
served since the original complaint was then amendable. The
amendment could supersede the original pleading, as of right,
without leave of court (See also Rosario v. Carandang, 96 Phil.
845, 851). Bar 2005
Similarly, in an action for damages filed before the then
Court of First Instance (now Regional Trial Court) against
a sheriff for an alleged illegal levy upon the property of- the
plaintiff, the latter sought to amend his complaint after an
answer has been served by the defendant. The amendment was
made when the plaintiff realized that the amount alleged as
damages was below the jurisdiction of the court. The Supreme
Court held that it was error to admit the amendment because
the court must first acquire jurisdiction over the subject matter
of the complaint in order to act validly on the same including
its amendment (Gaspar u. Dorado, 15 SCRA 331, 334).
 380 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Effect of the amendment on the original pleading
When a pleading is amended, the original pleading
is. deemed to have been abandoned. The original ceases to
perform any further function as a pleading. The case stands
for trial on the amended pleading only (Ascano-Cupino u.
Pµcific Rehouse Corporation, G.R. No. 205113, August 26,
2015). As the Rules.pufit: "An amended pleacifog supersedes
the original one which· it amends" (Sec. 8, Rule 10, Rules of
Court).
Effect of the amendment on admissions made in the original
pleading
Admissions in superseded pleadings may be received
in evidence against the pleader (Sec. 8, Rule 10, Rules of
Court). Be it noted, however, that the admissions made in the
original pleadings cease to be judicial admissions (Ching v.
Court of Appeals, 331 SCRA 16, 33). This time, they are now
to be considered as extrajudicial admissions (Torres v. Court
of Appeals, 131 SCRA 24, 35). In order to be utilized against
the party making the admissions, they must, in order to have
such effect, be formally offered in evidence (See Ching v. Court
of Appeals, supra). The original pleadings can have no effect
unless offered in evidence (Bastida v. Menzi & Co., Inc., 58
Phil. 188, 222, citing Lucido u. Calupitan, 27 Phil. 148, and
Jones on Evidence, Sec. 273).
Summons after complaint is amended; when required and
when not required
_ 1. Although the original. complaint is deemed
superseded by the pleading that amends it, it does not ipso
facto follow that 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
finally terminated.
CHAPTER IV 381
PLEADINGS AND MOTIONS
Conversely, when the defendants have not yet appeared
in court, new summons for the amended complaint must
be served on them. It is not the change of a cause of action
that gives rise to the need to serve another summons for the
amended complaint but rather the acquisition of jurisdiction
over the. persons of the defendants. If the trial court has not
yet acquired jurisdiction ov(;lr tp,�m, a new summons Jor the
amendecfcomplaint is required'(Vlason Enterpris�s C()rp. u.
Court of Appeals, 310 SCRA 26, 57-58).
2. 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. Bar 1999
Supplemental pleadings
1. A supplemental pleading is one which sets forth
transactions, occurrences, or events which have happened
since the date of the pleading sought to be supplemented (Sec.
6, Rule 10, Rules of Court).
2. The filing of supplemental pleadings requires leav
of court. The court may allow the pleading only upon such
terms as are just. This leave is sought by the filing of a motion
with notice to all parties (See Sec. 6, Rule 10, Rules of Court).·
Cause of action in supplemental pleadings
1. 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 (Asset Privatization Trust u. Court of
Appeals, 324 SCRA 533, 546).
2. 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

382 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
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. Its usual office is to set up
new facts which justify, enlarge or change the kind of relief
with respect to the same subject matter as the controversy
referred to in the original . complaint (Chan v. Chan, 569
SCRA 106). If the·sµpplemental pleadingistates a new cause
of action, it may b� allowed provided 'thaf the matter stated
in the supplemental complaint must have a relation to the
cause of action set forth in the original pleading. This means
-
that the matter must be germane and intertwined with the
cause of action stated in the original complaint so that the
principal and core issues raised by the parties in their original
pleadings remain the same (See also Central Bank Board of
Liquidators v. Banco Filipino Mortgage and Savings Bank,
G.R. No. 173399, February 21, 2017).
Answer to a supplemental pleading; not mandatory
Must an answer to a supplemental complaint be filed?
This question was answered in a case.
Declared the Supreme Court:
XXX
"Sec. 7. Answer to supplemental complaint. - A
supplemental complaint may be answered within ten (10)
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.
As can be gleaned from the above provision, the
• filing of an answer to the supplemental pleading is not
mandatory because of the use of the word "may." This is
bolstered by the express provision of the Rules that the
answer to the original pleading shall serve as the answer
to the supplemental pleading if no new or supplemental
answer is filed. Thus, the Court cannot declare the
respondents in default simply because the latter opted
not to file their answer to the supplemental petition x x x"
(Chan v. Chan, 569 SCRA 106, 116-117; see Sec. 7, Rule
11, Rules of Court).
CHAPTER IV 383
PLEADINGS AND MOTIONS
II. MOTIONS IN CIVIL CASES
Definition of a motion
A motion is an application for relief other than by a
pleading (Sec. 1, Rule 15, Rules of Court).
Formi:bf motions
1. All motions shall be in writing. Exce'pted from this
written requirement are those: (a) motions made in open
court; and (b) motions made in the course of a hearing or trial
(Sec. 2, Rule 15, Rules of Court).
2. The rules that apply to pleadings shall also apply
to written motions with respect to caption, designation,
signature, and other matters of form (Sec. 10, Rule 15, Rules
of Court).
Contents of a motion
Motions are to contain the following: (a) a statement of
the relief sought to be obtained; (b) the grounds upon which
the motion is based; and (c) the supporting affidavits and other
papers. The last requirement applies only when so mandated
by the Rules or when necessary to prove facts stated in the
motion (Sec. 3, Rule 15, Rules of Court).
Hearing of motion; litigated and ex parte motions
1. As a rule, every written motion shall be set for
hearing by the applicant except for motions which the court
may act upon without prejudicing the rights of the adverse
party (Sec. 4, Rule 15, Rules ofCourt). This provision, therefore,
establishes the general rule that, with the exceptions of some
motions, - every written motion is deemed a litigated motion, GR
i.e., one which requires the parties to be heard before a ruling
on the motion is made by the court.
Generally, all written motions are required to iQ.clude a
notice of hearing and must be addressed to all parties and
served upon them at least three days before the date of the
-
384 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
hearing. It has, however, been ruled, that the three-day notice
rule is not an absolute requirement provided doing so will
neither cause prejudice to the other party nor violate his or
her due process rights (Republic v. Cortez, G.R. No. 187257,
February 7, 2017).
Jurisprud�nce holds that this/;requirement of notic¢
of hearing· ap'plies to a motion fdt reconsideration. Tli�
requirement of _notice is an integral component of procedural
due process that seeks to avoid s1irprises that may be sprung
upon the adverse party who must be given time to study and
meet the motion before a resolution by the court. A motion
unaccompanied by a notice of hearing is considered a mere
scrap of paper that does not toll the running of the period to
appeal (Guzman v. Guzman, 693 SCRA 328, 329, March 13,
2013).
A motion for reconsideration is a contentious motion that
needs to comply with the required notice and hearing and a
motion which does not comply with the rule is a worthless
piece of paper which the clerk of court has no right to receive
and which the court has no authority to act upon (Acampado
v. Cosmilla, G.R. No. 198531, September 28, 2015). It has,
however, been held that the failure to include a notice of
hearing in a motion for reconsideration is not fatal where the
other party was given the opportunity to be heard as when
such party was allowed to file a comment/opposition to the
motion (The Manila Banking Corporation v. Bases Conversion
and Development Authority, G.R. No. 230144, January 22,
2018).
2. An ex_ parte motion, on the contrary., is one which
does not require that the parties be heard and which the court
may act upon without prejudicing the rights of the other party.
This kind of motion is not covered by the hearing requirement
of the Rules (Sec. 4, Rule 15, Rules of Court; Republic v. Diaz ..
Enrique, 694 SCRA 102, 109-110, March 20, 2013).
An example of an ex parte motion is that one filed by
the plaintiff pursuant to Sec. 1 of Rule 18 in which he moves
promptly that the case be set for pre-trial.
CHAPTER IV 385
PLEADINGS AND MOTIONS
A motion for extension of time is not a litigated motion
where notice to the adverse party is necessary to afford the
latter an opportunity to resist the application. It is an ex parte
motion made to the court in behalf of one or the other of the
parties to the action, in the absence and usually without the
knowledge of the other party or parties. It has been said that
'e� parte motions a,re fr,E:)quently permissible jn procedural
rriatters, and also in si�uations and under ciitumstances of
emergency; and an exception to a rule requiring notice is
sometimes made where notice or the resulting delay might
tend to defeat the objective of the motion" (Sarmiento v.
Zaratan, 514 SCRA 246, 260-261).
3. A motion to dismiss (Rule 16) and a motion for sum­
mary judgment (Rule 35) are examples of litigated motions.
Notice of hearing
1. The written motion, which is required to be heard,
and the notice of the hearing thereof shall be served in such
a manner as to ensure its receipt by the other party at least
three days before the date of hearing, unless the court for good
cause sets the hearing on shorter notice (Sec. 4, Rule 15, Rules
of Court; Republic v. Diaz-Enrique, 694 SCRA 102, 109-110,
March 20, 2013). This is a mandatory rule (Laude v. Ginez­
Jabalde, G.R. No. 217456, November 24, 2015).
- •
• • <
2. The notice of hearing shall be addressed to all the
parties concerned. It shall also specify the time and date of the
hearing which shall not be later than 10 days after the filing
of the motion (Sec. 5, Rule 15, Rules of Court).
Proof of.service
Proof of service of the motion is required. No written
motion set for hearing shall be acted upon by the court without
proof of service thereof (Sec. 6, Rule 15, Rules of Court).
Motio!l71 day
All litigated motions shall be scheduled for hearing on
Friday afternoons, or if Friday is a non-working holiday, in
386 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
the afternoon of the next working day. This rule does not
apply to motions requiring immediate action (Sec. 7, Rule 15,
Rules of Court).
Effect of failure to set the motion for hearing, include a notice Proforma
of hearing,and serve the motion (Secs. 4, 5, 6 of Rule.1_5)
,;
� ,. ' . (ii. i .,;- :··:;;_ ! _·_,_ ' '} :-;:
K motion without a notice pf hearing is considered pro
forma and does not affect the reglementary period for the
appeal ·or the filing of the requisite pleading (Flores v. People,
692 SCRA 127, 138, February 27, 2013), a mere scrap of paper
that cannot be acted by the court. It presents no question
that the court can decide. The court has no reason to consider
it and the clerk has no right to receive it. Indisputably, any
motion that does not contain proof of service and notice to the
adverse party is not entitled to judicial cognizance (Acampado
v. Cosmilla, supra).
Summary of the requirements in filing a motion
The Court has summarized the requirements embodied
In Secs. 4, 5, and 6 of Rule 15 of the Rules of Court, as follows:
(a) Every motion which cannot be acted upon
without prejudicing the rights of the adverse party must
be. set for hearing;
(b) The adverse party must be given (i) a copy of
such written motion, and (ii) notice of the corresponding
hearing date;
(c) The copy of the written motion and the notice of
hearing described in (b) must be furnished to the adverse
party at least three (3) days before the hearing date,
unless otherwise ordered by the court; and
(d) No written motion that is required to be heard
shall be acted upon by the receiving court without proof of
service done in the manner prescribed in (c) (See Republic
v. Dimarukot, G.R. No. 202069, March 7, 2018).
CHAPTER IV 387
PLEADINGS AND MOTIONS
Motion for leave to file a motion
A motion for leave to file a motion shall be accompanied
by the motion sought to be admitted. The same rule applies to
pleadings (Sec. 9, Rule 15, Rules of Court).
- used to describe
practice document that is
a
The Omnibus motion rule (Bar 2010; 2011)
a-
provided as a
courtesy
1. The oninibJs motion rule reqtiire�°that a motion tha(
attacks a pleading, judgment, order or p�oceeding shall include
all grounds then available, and all objections not so included.
shall be deemed waived (Sec. 8, Rule 15, Rules of Court; see
also Capablanca v. heirs of Pedro Bas, G.R. No. 224144, June
28, 2017). Since the rU:le is subject to the provisions of Sec. 1
of Rule 9, the objections mentioned therein are not deemed
waived even if not included in the motion. These objections
are: (a) the court has no jurisdiction over the subject matter;
(b) there is another action pending between the same parties
for the same cause (litis pendentia); (c) the action is barred by
a prior judgment (resjudicata); and (d) the action is barred by
the statute of limitations or prescription (Sec. 1, 2nd sentence,
Rule 9, Rules of Court).
g)
"" & "" " ˢ
2. A motion to dismiss is a typical example of a motion Koc
subject to the omnibus motion rule, since a motion to dismiss
attacks a complaint, which is a pleading. Following the
omnibus motion rule, if a motion to dismiss is filed, it must
invoke all objections which are available at the time of the
filing of said motion. If the objection which is available at the
time is not included in the motion, that ground is deemed
waived. It can no longer be invoked as an affirmative defense
in the answer which the movant may file following the denial
of his motion to dismiss.
Illustration: In a case filed with the RTC, the defendant
filed a motion to dismiss invoking the following as objections:
(a) failure to state a cause of action, (b) lack of jurisdiction over
the person of the defendant, and (c) violation of the statute
of frauds. Two objections available at the time the motion
was filed, namely, improper venue and prescription were not
included in the motion. The motion to dismiss was denied.
 CHAPTER IV 389
388 CIVIL PROCEDURE, VOLUME I PLEADINGS AND MOTIONS
THE BAR LECTURES SERIES

b. Motion for extension of time to file opposition,

May the defendant, in his answer filed after the denial of his
affidavit, position paper and other pleadings;
motion to dismiss, invoke the affirmative defenses of improper
venue and prescription? c. Dilatory motion for postponement;
Answer: Improper venue is deemed waived. It was d. Motion for a bill of particulars;
available as a .defense at the time the motion was filed and
e. Motion to declare respondent in default; and
should have been invoked. Failure to so include .the same
iri.;th�; motion is to be cimsttued as waiver of<'th�/objection. £.. Motion for reconsiderhtion of interlocutory
Prescription, on the other hand, is not waived an:d can still orders or interim relief orde;� (Sec. 11, The Rules bn the
be- interposed as an affirmative defense in the answer. It Writ of Amparo; Sec. 13, The Rules on the Writ of Habeas
is a defense that is not deemed waived under the explicit Data).
provisions of Sec. 1 of Rule 9.

e
Prohibited motions under the Rules of Procedure for Small

e-
Prohibited motions under the 1991 Revised Rules on Claims Cases, as amended
-

Summary Procedure
-

The following motions shall not be allowed in the case

The following motions shall not be allowed: covered by the Rules of Procedure for Small Claims Cases:
a. Motion to dismiss the complaint or to quash a. Motion to dismiss the complaint;
a criminal complaint or information; Exception: If the
ground is lack of jurisdiction over the subject matter or b. Motion for a bill of particulars;
failure to comply with the rule requiring referral to the C. Motion for new trial;
Lupon for conciliation.
d. Motion for reconsideration of a judgment;
b. Motion for a bill of particulars;
e. Motion for reopening of trial;
c. Motion for new trial;
f. Motion for extension of tim� to file pleadings,
d. Motion for reconsideration of a judgment; affidavits or any other paper;
e. Motion for reopening of trial; r

g. Motion to declare the defendant in default; and

f. Motion for extension of time to file pleadings,
h. Dilatory motions for postponements (Sec. 16,
affidavits or any other paper;
Rule of Procedure for Small Claims Cases, as amended,
g. Motion to declare the defendant in default; and effective Februqry 1, 2016).
h. Dilatory motions for postponement (Sec. 19,
1991 Revised Rules on Summary Procedure).
=
Prohibited motions under the
Environmental Cases
Rules of Procedure for

-
Prohibir.ed motions in the Rules on the Writs of Amparo and
Habeas Data
_
a.
b.
Motion to dismiss the complaint;
Motion for a bill of particulars;
The following motions are prohibited:
a. Motion to dismiss;
390 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES

c. Motion for extension of time to file pleadings,

except to file answer, the extension not to exceed 15 days;
and
d. Motion to declare the defendant in default (Sec.
ChapterV
2, Rule 2, Part II, Rules of Procedure for Environmental SUMMONS
Cases).

-oOo- Purpose and importance of summons

1. · 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 (See Borlongan u. Banco
De Oro [formerly Equitable PCI Bank], G.R. No. 217617, April
5, 2017).
"Summons is the writ by which the defendant is notified of
the action brought against him or her. Its purpose is two-fold:
to acquire jurisdiction over the person of the defendant and
to notify the defendant that an action has been commenced
so that he may be given an opportunity to· be heard on the
claim against him.xx x It is elementary that before a person
can be deprived of his property, he should first be informed
of the claim against him and the theory on which such claim
is premised" (Nation Petroleum Gas, Incorporated u. Rizal
Commercial Banking Corporation, G.R. No. 183370, August
17, 2015). This means that any person with interest in the
thing in litigation must be given an opportunity to defend
that interest. Since the essence of due process lies in the
reasonable opportunity to be heard and to submit any evidence )
I
the defendant may have in support of his defense, he must
be properly served with summons. The service of summons
is a v�tal an� indispensable ing�edient of d�e process and . f
compliance with the rules regardmg the service of summons l
is as much an issue of due process as it is of jurisdiction (See
Borlongan u. Banco De Oro [formerly Equitable PCI Bank],
G.R. iVo. 217617, April 5, 2017).

391
 392 CMLPROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
2. · "x x x Without service of summons, or when summons
are improperly made, both the trial and the judgment,
being in violation of due process, are null and void, unless
the defendant waives the service of summons by voluntarily
appearing and answering the suit" (See Frias v. Alcayde, G.R.
No. 194262, February 28, 2018; citation of the Court omitted).
A previous 'casei similarly holds that 1f a defendant has
not been validly ·suminoned, the court &cquires no jurisdiction'' ..
over his person, l;lnd a judgment render�d against him is void
-
(Express Padala [Italia] S.P.A. v. Ocampo, G.R. No. 202505,
-
September 6, 2017).
3. An integral part of the summons is a direction that
the defendant should answer the complaint within the period
fixed by the Rules and that, unless he so answers, plaintiff
will take judgment by default and may be granted the relief
applied for (See Sec. 2, Rule 14, Rules of Court).
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 (Frias u. Alcayde, G.R. No. 194262, February 28,
2018).
_Summons in actions in personf!m (Bar 2016)
1. "x x x Service of summons upon the defendant is
the means by which the court acquires jurisdiction over his
person xx x" (Frias v. Alcayde, G.R. No. 194262, February 28,
2018; citation of the Court omitted).
2. In an action in personam, the purpose of summons
is not only to comply with due process but also to acquire
jurisdiction over the person of the defendant. It needs to be
noted, at this point, that the mere filing of the complaint does
not enable the court to acquire jurisdiction over the person of
the defendant. By the filing of the complaint and the payment
of the required filing and docket fees, the court acquires
jmisdiction only over the person of the00 plaintiff, not over
the person of the- defendant (For further readings, see Ellice
CHAPTERV 393
SUMMONS
v. Agro-Industrial Corporation v. Young, 686 SCRA 51, 61,
November 21, 2012). To have jurisdiction over the person of
the defendant, where he does not appear voluntarily in the
action, a valid service of summons upon him is required.
3. The principle is plain and simple. "Where the action
is in personam, · that is, one brought against a person on the
basis of her personal lia:hility, jurisdiction ove_r the person
f
of'the '.defendant is nece$�arJ or the court to Jilidly try and
decide the case x x x" (Velayo-Fong v. Velayo, 510 SCRA 320,
331). Without acquiring jurisdiction over the person of the
defendant in an in personam action, such as an action for
damages, the court would be without authority to order said
defendant to pay damages in favor of the plaintiff. In ari action
for a sum of money, also an in personam action, any judgment
against the defendant rendered without jurisdiction over
his person would not be binding upon him. Common reas on
suggests that the court would be devoid of authority to hold
person liable for the relief prayed for by the plaintiff without
first vesting upon said court jurisdiction over the person of the
defendant.
4. 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 corporation
was not summoned to the suit, even if its president knew of th
action in his capacity as counsel for the other defendant.,Basic
is the rule that the corporation has a personality separat
and distinct from the people who compose it (See Trimica v.
Polaris Marketing Corp., G.R. No. L-29887, · October 28, 197 4).
As aptly explained by the Court: "The general rule is that
no man shall be affected by any proceeding to which he is a
stranger and strangers in a case are not bound by a judgment
of the court" (Sunrise Garden Corporation u. Court of Appeals,
G.R. No. 158836, September 30, 2015).
not
Effect of lcnowleclge of the filing of the action enough to know
-
Knowledge by the defendant of an action filed against about it
him does not dispense with the need for summons. Summons
must still be is.sued and served.
 394 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Thus, it was ruled that, "x x x jurisdiction over the person
of the defendant cannot be acquired notwithstanding his
knowledge of the pendency of a case against him, unless he
was validly served with summons. Such is the important role
a valid service of summons plays in court actions" (See Frias
· v. Alcayde, G.R. No. 194262, February 28, 2018, Citation of the
Court omitted).
� �- , , '. !"
i,.: . .: �Ji.
"'
Purpose of summons in actions in.rem and quasi in rem.
· ,•
1. As discussed in an earlier chapter and repeated, in
passing, for emphasis, in actions in rem and quasi in rem,
the court is not primarily concerned with the acquisition of
jurisdiction over the person of the defendant. In these actions,
it is the acquisition by the court of jurisdiction over the res
which principally matters.
2. Recall that jurisdiction over the res is acquired
either "(a) by the seizure of the property under legal process,
whereby it is brought into actual custody of the law; or (b)
as a result of the institution of legal proceedings, in which
the power of the court is recognized and made effective. The
service of summons or notice to the defendant is not for the
purpose of vesting the court with jurisdiction but merely for
satisfying the due process requirements" (Alba v. Court of
Appeals, 465.SCRA 495, 505-5Q6; See also Frias v. Alcayde,
G.R. No. 194262, February 28, 2018).
3. Thus, it has been clearly declared that, in an action
in rem or quasi in rem, jurisdiction over the person of the
defendant is not a prerequisite to confer jurisdiction on the
court provided that the court acquires jurisdiction over the
res. This does not, however, mean that the service of summons
may be dispensed with. The Court explained that summons
must still be served upon the defendant in order to satisfy
the due process requirements (Asiavest Limited v. Court of
Appeals, 296 SCRA 539, 554; Gomez v. Court of Appeals, 420
SCRA 98, .l 04; Biaco v. Philippine Countryside Rural Bank,
515 S'CRA 106, 115-116; Suggested reading: PCI Bank v.
①summons issued by the court, or through the defendant's
Alejandro, 533 SCRA 738).
CHAPTER V 395
SUMMONS
4. Take, for purposes of illustration, the proceedings for
the attachment of property of a defending party. Attachment,
it has been ruled, is in the nature of a proceeding quasi in
rem (Banco-Espanol Filipino v. Palanca, 37 Phil. 921, 928)
although sometimes referred to as an action in rem (Valdevieso
v. Damalerio, 451 SCRA 638, · 671). While attachment is a
,;prot�eding in rem or qµas(in rem, this class�_ficafton becomes
•significant only when th� defendant does no'f appear in
the action as when h� is a non-resident who is at the same
'time outside of the Philippines. Where the' defendant does
not voluntary appear in the action, the need for acquiring
jurisdiction over the property or res becomes imperative so
the court may have the authority to order that the property
be made to answer for the liability of the non-appearing
defendant.
The Court has, however, clarified that, "If the defendant
appears, the cause becomes mainly a suit in personam, with
the added incident, that the property attached remains liable,
under the control of the court, to answer to any demand
which may be established against the defendant by the final
judgment of the court. But, if there is no appearance of the
defendant, and no service of process on him, the case becomes,
in its essential nature, a proceeding in rem, the only effect
of which is to subject the property attached to the payment
of the defendant which the court may find to be due to the
plaintiff' (See Banco-Espanol Filipino v. Palanca, 37 Phil.
921, 929 citing Cooper v. Reynolds, 10 Wall., 308). When the
defendant appears in the action, even an in rem and a quasi in
rem action are to be treated as actions in personam.
Voluntary appearance by the defendant (Bar 2017)
1. It has been previously stated that the acquisition of
jurisdiction over the person of the defendant is required in an
action in personam. But how is this jurisdiction acquired?
Jurisdiction over the person of the defendant is acquired
through a coercive process, generally by the service of
②
voluntary appearance or submission to the court (Republic of
. 396 CIVIL PROCEDURE, VOLUME I­
THE BAR LECTURES SERIES
the Philippines v. Domingo, 657 SCRA 621, 632; Ellice Agro­
Industrial Corporation v. Young, 686SCRA 51, 61, November
21, 2012; Uy v. Del Castillo, G.R. No. 223610, July 24, 2017).
Stated otherwise, without a valid service of summons, the court
cannot acquire jurisdiction over the person of the defendant,
unless he voluntarily submits himself to the jurisdiction of the·
court (Man�toc
. v. Court of Appea�s, 499 SCRA 21, .33).,/Bar
'·
1999
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 (See Tujan-Militante v. Nustad, G.R.
No. 209518, June 19, 2017).
=
2. The applicable provision on voluntary appearance
states:
"SEC. 20. Voluntary appearance. - The defendant's
voluntary appearance in the action shall be equivalent to
service of summons. The inclusion in a motion to dismiss
of other grounds aside from lack of jurisdiction over the
person of the defendant shall not be deemed a voluntary
appearance."
The provision is clear. The effects of a valid service of
summons will necessarily flow from the voluntary appearance
of the defendant, such appearance being equivalent to service of
summons. Because of the "principle of voluntary appearance,"
an absence of service of summons or even an invalid service
of summons will not prevent the court from acquiring
jurisdiction over the defendant as long as he performs acts
that could be construed as a voluntary appearanc.e (Please
refer to discussion in Chapter II on Jurisdiction; Uy v. Del
Castillo, G.R. No. 223610, July 24, 2017).
As declared by the Court: "While proper service of
summons is necessary to vest the court with jurisdiction over
the person of the defendant, the lack or defect in the service
of summons may be cured by the defendant's subsequent
voluntary submission to the jurisdiction of the court" (Guy v.
Gacott, G.R. No. 206147, January 13, 2016).
CHAPTERV _397
SUMMONS
3. When is a defendant deemed to have made a
voluntary appearance? The court in one case held that the
defendant is deemed to have made a voluntary appearance
when he filed an answer to the complaint (Guy v. Gacott,
supra) _or actively participated in the case. It is settled that
the active participation of a party against whom the action
. was brought, is itan.tamount to an imtocatj_on of the court's
. jurisdiction and·a: willingness to abide by the resolution of the·
case, and such will bar said party from later on impugning the
court's jurisdiction (Uy v. Del Castillo; G.R. No. 223610, July
24, 2017).
In another case, the trial court was held to have acquired
jurisdiction over the person of the defendant when he filed the
"Omnibus Motion for Reconsideration and to Admit Attached
Answer." This was equivalent to service of summons and
vested the trial court with jurisdiction over the person of the
defendant (Santos v. PNOC Exploration Corporation, 566
SCRA 272, 280). Also, by seeking affirmative relief from the
court, like moving for the discharge of a writ of attachment,
the defendant is deemed to have voluntarily submitted to the
jurisdiction of the court (National Petroleum Gas Corporation
v. Rizal Commercial Banking Corporation, G.R. No. 183370,
August 17, 2015).
The Court, in yet another case elucidates, thus: "As a
general proposition, one who seeks an affirmative relief is
deemed to have submitted to the jurisdiction of the court. It is
by reason of this rule that we have had occasion to declare that
the filing of motions to admit answer, for additional time to file
aI].SWer, for reconsideration of a default judgment, and to lift
order of default with motion for reconsideration, are considered
voluntary submission to the court's jurisdiction. This, however,
is tempered by the concept of conditional appearance, such
-
that a party who makes a special appearance to challenge,
among others, the court's jurisdiction over his person cannot
be considered to have submitted to its authority'' (Reicon
Realty Builders Corporation u. Diamond Dragon Realty and
Management, Inc., G.R. No. 204796, February 4, 2015; italics
398 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
supplied; Onstott v. Upper Tagpos Neighborhood Association,
Inc., G.R. No. 221047, September 14, 2016; see also Tujan­
Militante v. Nustad, G.R. No. 209518, June 19, 2017).
4. Jurisprudence clearly explains that seeking affir­
mative relief from the court is equivalent to voluntary
appearance. However, tlie act of making a conditi9nalqr special
appeat';;mce in court to objecf'.to the jurisdictio� of that court
over his person, is not to be d�emed a voluntary �ppearance or
a voluntary submission td thejurisdiction of the -court. Hence,
if the defendant, without having been served with summons,
files a motion to dismiss the complaint grounded on the court's
alleged lack of jurisdiction· over his person, the filing of the
=
motion is not to be construed as a voluntary appearance. Here,
the defendant's appearance is not to seek for any affirmative
relief from the court but to seek the dismissal of the complaint
on the ground stated.
Jurisprudence referred to this appearance as a "special
appearance", one made for the purpose of objecting to the
I
court's jurisdiction over the person of the defendant (For
÷-
further readings, see Frias v. Alcayde, G.R. No. 194262,
February 28, 2018).
But what if, in the motion to dismiss, the objection to the
jurisdiction over the person of the defendant is coupled with
other defenses or grounds for dismissal? Would the inclusion
of other grounds for dismissal be considered a voluntary
submission to the authority of the court?
The second sentence of Sec. 20 of Rule 14 is explicit, thus:
''.x x x The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the rj,efendant
shall not be deemed a voluntary appearance" (Italics supplied).
Bar 2017
It is apparent that under existing rules, a defending party
may file a motion to dismiss for lack of jurisdiction over his
person and add to such ground other grounds for dismissal.
Hence, the defendant, for example, may include, as grounds
for dismissal, failure to state a cause of action, prescription,
improper venue, and other authorized defenses and objections
-
CHAPTERV 39()
SUMMONS
under the Rules, aside from lack of jurisdiction over the person
of the defendant. The addition of such grounds, aside from
lack of jurisdiction over the person of the defendant, shall not
be considered a voluntary appearance under Sec. 20 of Rule
14. (For suggested readings, see Sunrise Garden Corporation v.
Court of Appeals, G.R. No. 158836, September 30, 2015).
The for'ine�·�octrine considered th�'tnclusion of additihnaI
grounds in 'a mQtion to dismiss, aside from lack of jurisdiction
over the person of the defendant, as a voluntary appearance.
Under this previous doctrinal policy, when the appearance is
by motion for the purpose of objecting to the jurisdiction of
the court over the person, it must be for the sole and separat
purpose of objecting to the jurisdiction of the Court. Rene...,
if the motion to dismiss invoked prescription as an added
ground, the defendant was considered to.have made a general,
not a special or conditional appearance. It was then held that
for the court to validly decide the defense of prescription, it
necessarily had to acquire jurisdiction upon the defendan.t'i
person, who should be deemed to have abandoned its special
appearance and voluntarily submitted itself to the jurisdiction
of the court (For further readings, see Republic v. Ker & Cu.
Ltd., G.R. L-21609, September 29, 1966).
The above doctrinal policy has been superseded by th··
current Rule in Sec. 20 of Rule 14 which allows the defendin e.
party to include in his motion to dismiss other grounds other
than lack of jurisdiction over the defendant, without him
running the risk of being considered to have made a voluntary
appearance. Earlier, the case of La Naval Drug Corporation
v. Court of Appeals had already re-examined the old rule and
declared that the raising of other defenses by the defendant
should not be construed as a voluntary appearance. This is
because under the Rules of Court (Sec. 2, Rule 8), the defendant
is allowed to raise alternative defenses. Under the same Rule
(Sec. 2, Rule 9), defenses and objections not pleaded either i n
a motion to dismiss or in an answer are deemed waived. Thu1.,,
held the Court: "It thus appears that it is not the invocation of
any of such defenses, but the failure to so raise them, that can
result in waiver x x x " (La Naval Drug Corporation v. Court
of Appeals, G.R. No. 103200, August 31, 1994).
400 CIVI L PROCEDURE,-VOLUME I
THE BAR LECTURES SERIES
5. The filing of a motion for more time to file an
answer is considered voluntary appearance on the part of the
defendant, such that the trial court, nevertheless, acquired
jurisdiction over his person despite the defect in the summons
(Carson Realty & Management Corporation, G.R. No. 225035,
February 8, 2017; Villongco· v. ·Yabut, G.R. No.· 225022,
Fe�ruary 5, 2018). i_�: ;;,,
Who issues the summons
The clerk of court issues the summons (Sec. 1, Rule 14,
Rules of Court) who shall sign the same under seal (Sec. 2,
Rule· 14, Rules of Court).
When summons is issued
Summons shall be issued upon the filing of the complaint
and the payment of the requisite legal fees (Sec. 1, Rule 14,
Rules of Court).
To whom summons is directed
The summons is a writ that is directed to the defendant,
not the plaintiff (See Sec. 2, Rule 14, Rules of Court).
Who serves.�ummons_(Bar 2012)
① ②
② The summons may be served by the sheriff, his deputy,
or other proper court officer, or for justifiable reasons by any
④
suitable person authorized by the court issuing the summons
(Sec. 3, Rule 14, Rules of Court).
Contents of the summons
l. The summons shall contain the following matters:
(a) the name of the court and the names of the parties to
the action; (b) a direction that the defendant answer within
the time fixed by the Rules; and (c) a notice that, unless the
defendant so answers, the plaintiff will take judgment by
default and may be granted the relief prayed for (Sec. 2, Rule
14, Rules of Court).
CHAPTERV 401
SUMMONS
2. A copy of the complaint (including a copy of an order
for the -
appointment of a guardian ad litem, if necessary) shall
be attached to the original and each copy of the summons (Sec.
2, Rule 14, Rules of Court).
Return and,proof of service (Bar 2012)
1. ::: W;'�en the service h�s b�en completed, the s�iver
shall, within five days therefrom,• serve a copy of the return,
personally or by registered mail,· to the plaintiffs' counsel,
-
and shall return the summons to the clerk who issued it,
=
-
accompanied by proof of service (Sec. 4, Rule 14, Rules ol
Court).
2. After the completion of the service, a proof of servic e
is required to be filed by the server of the summons. The proof
of service of summons shall be made in writing and shall set
forth the manner, place, and date of service; specify any paper
which have been served with the process and the name of th e
person who received the same; and be sworn to when made by
a person other than a sheriff or his deputy (Sec. 18, Rule 14
Rules of Court).
Uniformity of the rules on summons
The rules on summons apply with equal force in actions
before the Regional Trial Courts, Municipal Trial. Courts,
Municipal Trial Courts in Cities, MU:nicipal Circuit Trial
Courts and the Metropolitan Trial Courts. This is because the
procedure in the Municipal Trial Courts shall be the same as
in the Regional Trial Courts, except (a) where a particular
provision exp!'essly or impliedly applies only to either of said
courts, or (b) in civil cases governed by the Rule on Summary
Procedure (Sec. 1, Rule 5, Rules of Court). Bar 1989
Service upon an entity without a juridical personality
1. When two or more persons not organized as an
entity with juridical personality enter into a transaction, they
may be sued under the name by which they are generally o 1-
commonly known (Sec. 15, Rule 3, Rules of Court).
402 CMLP ROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
Thus, if A, B, and C enter into a transaction under the
name, ABC Corporation, an entity which has actually no
juridical personality, A, B, and C may be sued under the
name, ABC Corporation.
2. How, then, may· summons be served. upon the
non-existent corporation or upon those.,. who· compose the
'.\'.corporation"? · · ·
Under Sec. 8 of Rule 14, service may be effected upon all
the defendants by �erving summons upon (a) any one of them,
or (b) upon the person in charge of the office or of the place
of business maintained in such name. This service shall not,
however, bind individually any person whose connection with
the entity, upon due notice, had been severed before the action
was brought. Bar 2011
Service upon a prisoner
When the defendant is a prisoner confined in a jail or
institution, service shall be effected upon him (the prisoner) by
the officer having the management of such jail or institution.
For this purpose, the jail manager is deemed deputized as a
special sheriff (Sec. 9, Rule 14, Rules of Court).
Se1vice upon a minor and an incompetent
When the defe:i:idant is a minor, insane or otherwise an
incompetent, service shall be made (a) upon him personally
and (b) on his legal guardian if he has one, or if none, upon
his guardian ad litem. The appointment of the guardian ad
litem shall be applied for by the plaintiff. If the defendant is
a= minor, service may be made also upon his father or mother
(Sec. 10, Rule 14, Rules of Court). Notice that service upon the
legal guardian, father, or mother is not a sufficient compliance
of the rule. Service should be made also upon the defendant
even if he is a minor, insane or an incompetent.
Service upon a domestic private juridical entity
1. When the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a
CHAPTERV 403
SUMMONS
juridical personality, service may be made upon the following
persons: (a) president, (b) managing partner, (c) general
manager, (d) corporate secretary, (e) treasurer, or (f) in-house
counsel (Sec. 11, Rule 14, Rules of Court; Guy v. Gacottt, G.R.
No. 206417, January 13, 2016).
2. The above enumeration has been held to be limited
to '.the '�ersons enumerated arid summons candot �e served
upon any other person. The earliest pronouncements of th e
Court on the matter described the enumeration as "restricted,
limited and exclusive" (E.B. Villarosa & Partner, Ltd. v. Benito,
312 SCRA 65, 73) following the rule on statutory construction
expressio unios est exclusio alterus (Nation Petroleum Gas
Incorporated v. Rizal Commercial Banking Corporation, G.R.
No. 183370, August 17, 2015).
Even more recent jurisprudence affirms that Sec. 11
Rule 14 provides an exclusive enumeration of the person
authorized to receive summons for juridical entities (See als
Guy v. Gacottt, supra). Service of summons on an officer 0th"�'
than those enumerated in Sec. 11 of Rule 14 is invalid (71
Islands Publishing, Inc. v. The House Printers Corporation,
G.R. No. 193420, October 14, 2015).
Old rule on service upon a domestic private juridical entity
1. In construing the provisions of the rule.on service of
summons upon a private juridical entity (Sec. 13, Rule 14 of
the 1964 Rules of Court), before its amendment took effect on
July 1, 1997, the Court employed the principle of substantial
compliance.
For instance, in Summit Trading and Development
Corporation v. Avendano, 135 SCRA 397, 400, the Cour
upheld the validity of service made upon the secretary of th ¥
corporate president.
The same liberal construction of the rule on summon
was made in a case where service was made upon a mere clerk
of the corporation (G & G Trading Corporation v. Court of
Appeals, 158 SCRA 466, 46'9; Rebollido v. Court of Appeals
170 SCRA 800, 809-810).
 404. CIVIL PROCEDURE,VOLUME I
THE BAR LECTURES SERIES
2. It was, likewise, held that service upon the
administrator of the corporate property and recognized as
such by the workers therein is a substantial compliance of the
rule (Pison,Arceo Agricultural and Development Corporation
v. National Labor Relations Commission, 279 SCRA 312, 322).
3. Seryice ;of summons upoJ:_1 anJ.operations manager
was held vali.d (RX Transport Corpofati0n V. Court of Appe&ls,
241 SCRA 77, 83). Service of summons on a bookkeeper was
also upheld (Pabon · v. NLRC, 296 SCRA 7, 14).
Other previous rulings allowed service through a
secretary of the President (Vlason Enterprises Corp. v. Court
of Appeals, 310 SCRA 26, 55-56), or the cashier (Talsan v.
Baliwag Transit, Inc., 310 SCRA 156, 163-164).
4. The case of Millennium Industrial Corporation v.
Tan, 326 SCRA 563, 569-571, although promulgated after the
effectivity of the amendments to the Rules, was decided upon
facts occurring before the effectivity of the 1997 amendments,
and, hence, the ruling therein was guided by the rule of
substantial compliance. In this case, service of summons upon
a "draftsman" was upheld because the defendant corporation
actually received the summons from the employee served.
The much later case of Aboitiz International Forwarders,
Inc. v. Court of Appeals, 488 SCRA 492, 507-509, which upheld
service of summons upon a customer service representative of
defendant corporation and deemed an "agent" for purposes of
summons, was decided in accordance with facts that transpired
prior to the amendments which took effect on July 1, 1997.
Hence, the ruling in this case did not apply the strict new
rule on summons under S ec. 11 of-Rule 14 and was decided in
accordance with the old rule on the matter.
5. The policy of liberal interpretation of the old rule
(then Sec. 13 of Rule 14) was largely due to the presence of
the word "agent" in the provision as one of those upon whom
summons could be served. This term was broad enough to
allow the application of the rule on substantial compliance.
Service upon an agent, however, is no longer provided for
CHAPTERV 405
SUMMONS
under the present rules on summons as now embodied in Sec.
11 of Rule 14.
6. Finally in 1999, came the first case which interpreted
the new provisions on summons under Sec. 11 of Rule 14.
In E.B. · Villarosa & Partner, Ltd. v. Benito, 312 SCRA.
. > 65, 73- 74, the Suprewe Cp'.urt agreed with t�e p�titioner that
the:enumeration of persons to whom summons may be served
is "restricted, limited, and exclusive" following the rule on
statutory construction expressio unius est exclusio alterius,
and that if the Rules of Court Revision Committee intended
to liberalize the rule on service of summons, it could hav
e
easily done so by clear and concise language. It further ruled
that "Notably, under the new Rules, service of summons upon
an agent of the corporation is no longer authorized." Hencv, ☒
the Court, in this case, ruled against the validity of service of
summons made on a mere branch manager of the defendant
corporation.
7. Villarosa was invoked and confirmed in the
subsequent case of Mason v. Court of Appeals, 413 SCRA
303, 310-311, when the Court ruled as invalid the servic e
of summons upon a secretary of the corporate president. In
another case, the Court further emphasized that the argument
of substantial compliance is no longer compelling (Paramount
Insurance Corp. v. A.G. Ordonez Corporation, 561 SCRA 327,
333).
A more recent case reiterates the same principle:
"Substantial compliance cannot be invoked. Service of
summons upon persons other than officers specifically
mentioned in Sec. 11, Rule 14, is void, defective and not binding
to said corporation" (Nation Petroleum Gas, Incorporated v.
Rizal Commercial Banking Corporation, G.R. No. 183370,
August 17, 2015).
8. In an action for damages against a domestic
corporation resulting from a vehicular collision, the summons
was served upon the defendant's cost accountant. The Court
agreed with the defendant that jurisdiction was not acquired
over its person because the rule on service of summons upor
406 CMLPROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
a domestic corporation was not complied with. Explaining
the difference between the old and the new rule, the Court
ratiocinated:
"In the past, the Court upheld service of summons
upon a construction project manager,. a corporation's
assi�t_ant manager, and ord111ary clerk of a corporation,
priyl:J,te secretary of corp_9fate executives, retafo�d
counsel, and officials who had control over the operations
of the corporation like the assistant general manager
or the corporation's Chief Finance and Administrative
Officer. The Court then considered said persons as
"agent" within the contemplation of the old rule. Notably,
under the new Rules, service of summons upon an agent ·
of the corporation is no longer authorized, The rule now
likewise states "general manager" instead of "manager";
"corporate secretary" instead of merely "secretary";
and "treasure" instead of "cashier." It has now become
restricted, limited, and exclusive only to the persons
enumerated in the aforementioned provision, following
the rule in statutory construction that the express
mention of one person excludes all others, or expressio
unions est exclusio alterius. Service must, therefore, be
made only on the person expressly listed in the rules. If
the revision committee intended to liberalize the rule on
service of summons, it could have easily done so by clear
and concise language" (Green Star Express, Inc. v. Nissin­
Universal Robina Corporation, G.R. No. 181517, July 6,
2015).
Service upon a foreign private juridical entity
1. Service upon a foreign private juridical entity which
has transacted business in the Philippines may be made on (a)
its resident agent designated in accordance with law for that
purpose, or, if there be no such agent, (b) on the government
official designated by law to that effect, or (c) on any of the
officers or agents of said foreign entity within the Philippines
(Sec. 12, Rule 14, Rules of Court; see amendment on p. 372).
It has been held that when a foreign corporation has
designated a person to receive summons on its behalf pursuant
to the Corporation Code, that designation is exclusive and
CHAPTERV 407
SUMMONS
service of summons on any other person is inefficacious (H.B.
Zachry Company International v. Court ofAppeals, 232 SCRA
329,346).
2. A foreign corporation may be allowed to transact
business in the Philippines after it shall have obtained a
license to transact business in the country and a certificate of
authority from 1t)je
. '.
appropriate goverdrhent agency. It may)")
': ·"''
however, be granted a license under the principle of reciprocity,·
: ,:
This means that the country under whose laws it was formed
or organized allows Filipino citizens and corporations to do
business in its own country or state (Sec. 123, Corporation
Code of the Philippines). Also, as a condition precedent to th e
issuance of the license to transact business in the Philippines,
the foreign corporation shall file with the Securities and
Exchange Commission a written power of attorney designatin
some person who must be a resident of the Philippines, on
whom any summons and other legal processes may be served
in all actions or proceedings against such corporation (See Se�.
128, Corporation Code of the Philippines).
A foreign corporation with a license to do business in th
Philippines may sue or be sued in the country. If a foreigr
corporation transacts business in the Philippines without
the required license, it cannot, however, be permitted t
:
maintain or intervene in any action, suit or proceeding in
· any court or agency in the Philippines. Such corporation,
may however, be sued or proceeded against before Philippin e
courts or administrative tribunals on any valid cause of action
recognized under Philippines laws (See Sec. 133, Corporation
Code of the Philippines). In other words, a foreign corporation
doing business in the Philippines without a license, cannot
sue in the Philippines but it can be sued.
Only a foreign corporation transacting business in th
Philippines is required to obtain a license to do business in th
country. A foreign corporation not engaged in business in th
Philippines does not need to secure such license. This should
not, however, be taken to mean that foreign corporations not
engaging in business in the Philippines are not allowed to su e
in the country. Jurisprudence allows such corporation to sue

408 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
in the country when it is suing under an isolated transaction
(Rimbunan Hijau Group of Companies u. Oriental Wood
Processing Corporation, G.R. No. 152228, September 23, 2005)
or (b) to protect its trade name or goodwill which has been
infringed (See Philip Morris, Inc. u. Court of Appeals, G.R. No.
91332, July 16, 1993).
':,:'.An unlicensed foreign!;corporation doing bJ_siness in the
Phi1ippines may also bring suit in Philippine c�urts against
a Philippine citizen or entity who had contracted with and
benefited from said corporation. Such a suit is premised on
-
the doctrine of estoppel. A party is estopped from challenging
the personality of a corporation after having acknowledged
the same by entering into a contract with it. This doctrine
of estoppel to deny corporate existence and capacity applies
to foreign as well as domestic corporations. The application
of this principle prevents a person contracting with a foreign
corporation from later taking advantage of its noncompliance
with the statutes chiefly in cases where such person has
received the benefits of the contract (See Agilent Technologies
Singapore [PTEJ Ltd. u. Integrated Silicon Technology
Philippines Corporation, G.R. No. 154618, April 2004).
Foreign private juridical entities not registered in the
Philippines or have no resident agents
Sec. 12, Rule 14 has been amended with respect to foreign
private juridical entities not registered in the Philippines or
have no resident agents. As to these juridical entities, service
may be effected out of the Philippines, with leave of court,
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 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;
409,
CHAPTERV
SUMMONS
(c) By facsimile or any recognized electronic means
that could generate proof of service; or
(d) By such other means as the court may in its
discretion direct (As amended by A.M No. 11-3-6-SC,
March 15, 2011). . This amendment may be construed as
anothE:):rlype of extraterritoril:!1,service distinct from.Sec.
.:, '.:; · :
15 of lttffe 14.
Service upon the Republic of the Philippines
When the defendant is the Republic of the Philippines,
service may be effected on the Solicitor General (Sec. 13, Rule
14, Rules of Court).
Service upon public corporations
When the defendant is 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 (Sec. 13, Rule 14, Rules of Court).
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.
"It is clear under the Rules that where the defendant is the
Republic of the Philippines, service of summons must be
made on the Solicitor General." Thus, where the complaint for
specific performance with damages was filed against DPWH
Region JII which is a mere agent of the Republic, the summons
in this case should have been served upon the OSG (Republic
of the Philippines u. Domingo, 657 SCRA 621, 636).
A. Service in person on defendant
(formerly personal service of summons)
1. Service in person on defendant is embodied in Sec. 6
of Rule 14 of the Rules of Court which provides:
 410 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
SEC. 6. Service in person on defendant. - Whenever
practicable, the summons shall be served by handing a
copy thereof to the defendant in person, or, if he refuses
to receive and sign for it, by tendering it to him. Bar 2013
Note that, under the present rule, Sec. 6 of Rule 14 refers
. Jo the mode of servic.;e ?-S "Service in personp� defendant," not
It ':'''personal service." The latter is a mode By\which pleadings,
. motions, notices, orders, judgments and other papers are
served under Sec. 6 of-Rule 13 of the Rules of Court. In short,
'personal service' is primarily a concept actually found in Rule
13 and not in Rule 14. The terms are often inaccurately used
interchangeably because the mode of service in Sec. 6 of Rule
14 used to be referred to in Sec. 7 of Rule 14 of the 1964 Rules
as 'personal service of summons.'
The plaintiff does not have a free choice on the mode of
service of summons. Jurisrudence considers service in person
as "the preferred mode of service of summons". Service of
summons other than service in person may be used only as
prescribed and under the circumstances authorized by the
Rules (See Borlongan v. Banco De Oro [formerly Equitable
PCI Bank, G.R. No. 217617, April 5, 2017).
Thus, it was held that Secs. 6 and 7 of Rule 14 cannot
be construed to apply simultaneously and do not provide for
alternative modes of service of summons which can be resorted
to on the mere basis of convenience to the parties. Service of
summons in the person of the defendant is generally preferred
over substituted service (Nation Petroleum Gas, Incorporated
v. Rizal Commercial Banking Corporation, G.R. No. 183370,
August 17, 2015). It is only when summons cannot b� served
personally within a reasonable period of time that substituted
service may be resorted to (Chu v. Jl/lach Asia Trading
C01poration, 694 SCRA 302, 308, April 1, 2013).
The impossibility of a prompt service in person must be
shown by stating that efforts have failed before availing of
other modes of service. The rules on service of summons must
be followed "strictly, faithfully and fully" since other modes
are considered in derogation of the usual method of service
CHAPTER V 411
SUMMONS
(See Borlongan v. Banco De Oro [formerly Equitable PCI
Bank, G.R. No. 217617, April 5, 2017).
2. Service in person is effected by handing a copy of the
summons to the defendant in person. If he refuses to receive
and sign for it, . the remedy of the se.rver is to tender the.
summOJ).S to the defendant (Se9. 6, Rule 14, Rules of Court).
)>t(:L . ;"•,iit...-t:. _;->-.: F:
3. ' If the defendant refuses the service, the sh�riff is
r
not supposed to resort to substituted service immediately. The
sheriff or the appropriate officer is required by the Rules to
"tender" the summons to the defendant. Tender of summons
is not a separate mode of service. It is a part of service in
person and applies when the defendant refuses to receive and
sign for the summons.
personal service
4. Only if service in person cannot be made promptly substituted service
can the process server resort to substituted service. The
failure to comply faithfully, strictly and fully with all the
foregoing requirements of substituted service renders the
service of summons ineffective (Jose v. Boyan, 414 SCRA 216,
222; Miranda u. Court of Appeals, 326 SCRA 278, 283). Bar
2013
For instance, in the above-cited case of Jl/liranda u.
Court of Appeals, 326 SCRA 278, the Court found that even
the briefest perusal of the sheriffs return clearly showed no
reason why personal service could not be made. The Court
reiterated the rule that the impossibility of prompt, personal
service should be shown by stating in the proof of service that
efforts were made to find the defendant personally and that
said efforts failed; hence, the resort to substituted service.
Since no such explanation was made, there was a failure to
faithfully, strictly, and fully comply with the r(;)quirements of
substituted service. This rendered said service ineffective.
The failure to find the defendants in their residence on the
first and only attempt to effect service in person does not justify
the availment of substituted service. There was no attempt
by the sheriff to faithfully comply with the requirements of
service in person on the defendant. Worse, substituted service
was made through a girl who was only 11 to 12 years old (Laus
u. Court of Appeals, 219 SCRA 688). Bar 2017
412 CMLPROCEDl,JRE,VOLUMEI
THE BAR LECTURES SERIES
B. Substituted service of summons
(Bar 2004; 2006; 2013; 2016; 2017; 2018)
1. The general rule in this jurisdiction is that summons
must be served on the defendant in person. Only for justifiable
reasons may other modes of serving summons · be resorted
to (See Express :Padala [Italia] S.P.Atv. Ocampo, G.R. No.:.
202505, Septeriib�r 6, 2017). As earlie:r;hi�ntioned, substituted 1·:'.
service is not the preferred mode of ser�ice of summons. Resort
to substituted service is permitted orily when the summons
cannot be promptly served on the defendant in person and
after stringent formal and substantive requirements have been
complied with (National Petroleum Gas, Incorporated v. Rizal
Commercial Banking Corporation, G.R. No. 183370, August
17, 2015; Borlongan v. Banco De Oro [formerly Equitable PCI
Bank], G.R. No. 217617, April 5, 2017).
Case law has established the hierarchy and rules in the
service of summons as follows:
(a) Personal service;
(b) Substituted service, if for justifiable causes the
defendant cannot be served within a reasonable time;
and
(c) Service by publication, whenever the defendant's
whereabouts are unknown and cannot be ascertained by
diligent inquiry (See Borlongan v. Banco de Oro, G.R. No.
217617, April 5, 2017).
2. As previously discussed, the sheriffs return must
show the details of the efforts exerted to personally serve
summons upon the 9-efeI?,dant before substituted service
is availed of. The return must contain a narration of the
circumstances showing efforts to personally serve summons
-
to the defendant and the impossibility of personal service of
-
summons (See De Pedro v. Romasan Development Corporation,
C.R. No. 194751, November 26, 2014). Hence, a return which
merely states the alleged whereabouts of the defendants,
without indicating that such information was verified and
without specifying the efforts exerted to serve the summons,
CHAPTERV 413
SUMMONS
is not enough for compliance. So is a mere general statement
that such efforts were made (Jose v. Boyan, 414 SCRA 216',
223).
3. The pertfoent provision of the Rules of Court (Sec. 7,
Rule 14, Rules of Court) provides that substituted service _may
be availed of if, "for justifiable causes, the defendant cannot"b
seived within a reasonablfu :,a reasonable
:.· '.time." What exactly i;'•.•
ti��?
"Within a reasonable time" contemplates a period of
time longer than that demarcated by the word "prompt,"
and presupposes that a prior attempt at personal service
within a justifiable time frame, as would be necessary to
bring the defendant within the jurisdiction of the court,
had failed" (Laus u. Court ofAppeals, 219 SCRA 688, 698).
The case of Manotoc v. Court of Appeals, 499 SCRA 2
34-35, is, however, more specific:
"x x x Reasonable time is defined as so much time
as is necessary under the circumstances for a reasonably
prudent and diligent man to do, conveniently, what the
contract or duty requires that should be done.. .Under
the Rules, the service of summons has no set period.. . To
the plaintiff, "reasonable time" means no more than seven
(7) days since an expeditious processing of the complaint
is whafr the party wants. To the sheriff "reasonable time
means 15 to 30 days because at the end of the month, it
is a practice for the branch clerk to require the sheriff to
submit a return of the summons assigned to the sheriff for
service. The Sheriffs Return provides data to the clerk of
court, which the clerk uses in the Monthly Report of Cases
to be submitted _to the Office of the Court Administrator
within the first ten (10) days of the succeeding month.
Thus one month from the issuance of summons can be
considered "reasonable" with regard to personal service
on the defendant."
The Court has set stringent conditions prior to the
availment of substituted service. A mere general claim
or statement in the sheriffs return that the server had
made "s.everal attempts" to serve the summons, without
414 CMLPROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
making reference to the details of facts and circumstances
surrounding such attempts, does not comply with the
rules on substituted service. Manotoc thus, stresses:
"x x x since the defendant is expected to try to
avoid and evade service of summons, the sheriff must be
resourceful, persevering, canny, and diligent in serving
the proc�ss on the defendant." Fdr !substituted service to . • ..
be ava:il�b1e there must be severai'attempts by the sheriff;::•.:·
to personally serve the summons · within a reasonable
period [of one. month] which ev�ntually resulted in
failure to prove impossibility of prompt service. "Several
-
attempts" means at least three (3) tries, preferably on
at least two different dates. In addition the sheriff must
cite why such efforts where unsuccessful. It is only then
that impossibility of service can be confirmed or accepted
(Manotoc v. Court of Appeals, 499 SCRA 21, 35-36;
underscoring supplied; cited in Frias v. Alcayde, G.R. No.
194262, February 28, 2018).
4. A more recent decision applied the Manotoc case in
an action for annulment of a judgment of the trial court. Here,
the petitioner learned that her marriage to the respon dent
was declared void ab initio. The decision stated that summons
was served on petitioner on a certain date in 2002 and that she
failed to file her responsive pleading within the reglementary
period:
Knowing that the facts stated in the decision were
untrue, and that the address given by respondent was not her
address, she filed a petition for annulment of judgment under
Rule 4 7 of the Rules of Court. She claimed that she was never
notified of the case filed against her. She further argued that
there was an invalid substituted service of summons because
the process server's return only contained a general statement
that substituted service was resorted to "after several futile
attempts to serve the same personally," without stating· the
dates and reasons of the failed attempts.
Finding that the trial court rendered judgment without
jurisdiction over the person of the petitioner, the judgment
was declared null and void, when the petition reached the
CHAPTERV 41
SUMMONS
Supreme Court. Reiterating its previous pronouncements in
the landmark case of Manotoc u. Court of Appeals, the Court
ruled, once again, that for substituted service of summons
to be available, the impossibility of service in person must
be shown. There must be several attempts by the sheriff to
personally serve the summons· within a reasonable -period
;\i:>..f one month which ,�ventually resulted i11-Jailure to prov
:<impossibility of prorript service. "Several attempts" means at
least three tries, preforably on at least two different dates.
·· In addition, the sheriff must cite why such efforts wer e
unsuccessful. It is only then that impossibility of service can
be confirmed or accepted.
After the impossibility of service in person has been
shown, the sheriff must describe in the return of summon
the facts and circumstances surrounding the attempted
personal service. The efforts made to find 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 inquiries made to locate the defendant
the name/s of the occupants of the alleged residence or hous e
of defendant and all other acts done, though futile, to serv e
the summons on defendant must be specified in the Return to
justify substituted service.
The Court added that the sheriff must also determint
if. the person found in the alleged dwelling or residence of
defendant is of legal age, what the recipient's relationship
with the defendant is, and whether said person comprehends
the significance of the receipt of the summons and his duty
to immediately deliver it to the defendant or at least notify
the defendant of said receipt of summons. These matters
must be clearly and specifically described in the return -of
summons. The Court found that the server's return utterly
lacked sufficient detail of the attempts undertaken by th e
process server to personally serve the summons on petitioner.
The server simply made a general statement that summons
was effected after several futile attempts to serve the sam e
personally (Ong u. Co, G.R. No. 206653, February 25, 2015.·
See also. Borlongan u. Banco De Oro [formerly .Equitable PC.
416 CIVIL PROCEDURE,VOLUME I
THE BAR LECTURES SERIES
Bank], G.R. No. 217617, April 5, 2017; for additional readings,
see Frias v. Alcayde, G.R. No. 194262, February 28, 2018).
5. By way of summary, the sheriff should perform the
following acts before he can effect a valid service of summons
other than by service in person on the defendant: (a) Establish
the impQs$ibility of personal service; and (b) Describe,in the
a'rid
return bt•�ummons the facts circumstances surf�rinding
his attempts to effect service in person. A single '�ttempt
to serve the defendant in person does not justifying the
availment of another mode of service (See Borlongan v. Banco
de Oro, G.R. No. 217617, April 5, 2017); (c) After the service,
the sheriff must state that the summons was served upon a
person of sufficient age and discretion, or who is in charge of
the office or regular place of business of the defendant. All the
requisites must be complied with because, as has always been
explained by the Court, substituted service is in derogation of
the usual method of service and personal service of summons
is preferred over substituted service. Hence, parties have no
unbridled right to resort to substituted service (Carson Realty
& 111anagement Corporation v. Red Robbin Security Agency,
G.R. No. 225035, February 8, 2017).
How substituted service is made
1. On the assumption that substituted service is now
justified, how then may summons be served by substituted
service? The answer is supplied by Sec. 7 of Rule 14. The rule
provides the server with options, to wit:
(a) leaving copies of the summons at the defendant's
residence, or
(b) leaving copies of the summons at the defen­
dant's office or regular place of business.
The rule does not, however, allow leaving the summons
with anyone else other than those mentioned therein. Thus,
if the summons is left at the defendant's residence, the
summons must be served by leaving the same with a person
of suitable age and discretion residing therein. If served in the
CHAPTERV 417
SUMMONS
defendant's office or regular place of business, the summons
must be left with some competent person in charge thereof
(Express Padala [Italia] S.P.A. v. Ocampo, G.R. No. 202505,
September 6, 2017).
2. A person of suitable age and discretion is one who
has attained the ��e of full legal capactty. (18 years old) and
.
=
is considered to ha:ve enough discernme:tr:fto understand the
importance of SU�in.ons. The Manotoc ca;e explains:
"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. Thus, to be of sufficient age
and discretion, such person must know how to read
and understand English to comprehend the import of
the summons, and fully realize the need to deliver the
summons and complaint to the defendant at the earliest
possible time for the person to take appropriate action.
Thus, the person must have a "relation of confidence" to
the defendant, ensuring that the latter would receive or
at least be notified of the receipt of summons. The sheriff
must therefore, determine if the person found in the
alleged dwelling or residence of defendant is of legal age,
what the recipient's relationship with the defendant is,
and whether said person comprehends the significance of
the receipt of the summons and his duty to deliver it to the
defendant or at least notify the defendant of said receipt
of summons and his duty to immediately deliver it to the
defendant or at least notify the defendant of said receipt of
summons. These matters must be clearly and specifically
described in the Return of Summons" (Manotoc v. Court
of Appeals, 499 SCRA 21, 35-36).
-
3. A competent person in charge of the office or regular
place of business must be 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. Again, the details must be contained in the Return
(Manotoc v. Court of Appeals, ibid.).
418 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
It is not necessary that the person in charge of the
defendant's regular place of business be specifically authorized
to receive the summons. It is enough that he appears to be
iri charge (Guanzon v. Arradaza, 510 SCRA 309, 318, citing
Gochanco u. CFI.
of Negros Occidental,
. .
157 SCRA 40).
: 4. It must be noted too that substituted service
prJttipposes that the place'.�here the summons iJ:��rved is the
defendant's current addre'ss or office/regular plac'e of business.
Thus; where the defendant neither resides nor·-holds office
in the address stated in the summons, substituted service
0
cannot be resorted to. The last known address cannot be the
place of service of summons because it is not the address of
the defendant (See Express Padala [Italia] S.P.A. u. Ocampo,
G.R. No. 202505, September 6, 2017).
Where the defendant's residence or place of business is
unknown and cannot be ascertained with diligent inquiry,
substituted service 0
is not the appropriate mode of service. The
correct mode of service is summons by publication under Sec.
14 of Rule 14, a mode which applies "in any action." But if it
is known that he is already a permanent resident of another
country and is no longer found in the Philippines, substituted
service will also no longer apply since he has neither a
residence or office/regular place of business in the country.
Neither will Sec. 14 of Rule 14 apply since his identity and
whereabouts are known. The plaintiff will have to check
on whether or not Sec. 15 of Rule 14 will apply. This would
necessitate determining the nature of the action. If the action
is any of those enumerated in Sec. 15, then said provision may
be availed of.
Effect i'f 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
CHAPTERV 419
SUMMONS
the defendant's residence or office was actually delivered to
the defendant (Montalban v. Maximo, 22 SCRA 1070, 1079).
Montalban v. Maximo is emphatic:
"It is immaterial then that defendant does not in
fact receive actual notice. This will not affect .the validity
of the ser0ce. Accordingly, the defe,ri,dant may be charged , ·,\,
by a judgmgnt in personam as a resiiltof legal proceedings
upon a method of service which is not personal, "which in
fact may not" become actual notice to him," and which may
be accomplished in his lawful absence from the country.
For the rules do not require that papers be served on
defendant personally or a showing that the papers were
delivered to defendant by the person with whom they
were left."
When defendant prevents service of summons
What if diligent efforts were undertaken by the sheriff
to serve summons upon the defendant but he was prevented
from effecting such service by the defendant himself? This
question was addressed in Robinson u. Miralles, 510 SCRA
678. Bar 2016
Here, the plaintiff filed a complaint for a sum of money
against the defendant. Summons was served upon the
defendant at her given address, but per return of service of the
sheriff, it was learned that the defendant no longer resided at
such address. Later, the trial court issued an alias summons
to be served at the defendant's new address. Again, the
summons could not be served on the defendant. The Sheriff
explained:
"The Security Guard assigned at the gate of Alabang
Hills refused to let me go inside the subdivision so that 1
could effect the service of the summons to the defendant
in this case. The security guard alleged that the defendant
had given them instructions not to let anybody proceed
to her house if she is not around. I explained to the
Security Guard that I am a sheriff serving the summons
to the defendant, and if the defendant is not around,
summons can be received by any person of suitable age

420 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
and discretion living in the same house. Despite of aH
the explanation. the security guard by the name of A.H.
Geroche still refused to let me go inside the subdivision
and served (sic) the summons to the defendant. The same
thing happened when I attempted to serve the summons
previously.
"Therefore, th� summons was served,by leaving a
copy thereoftogeth�t'with the copy ofthe corriplaint to the
e- security guard by the name ofA.H. Geroche; who _ refused
to affix his signature· on the original copy thereof, so he
will be the one to give the same to the defendant."
Eventually, the plaintiff filed a motion to declare
the defendant in default for her failure to file an answer
seasonably despite service of summons. The trial court granted
the plaintiffs motion declaring the defendant in default and
allowing the plaintiff to present her evidence ex parte. A
judgment by default was rendered and upon the plaintiffs
motion, the trial court issued a writ of execution.
The defendant filed with the trial court a petition for relief
from the judgment by default. She claimed that summons
was improperly served upon her, thus, the trial court never
acquired jurisdiction over her and that all its proceedings are
void. The defendant contended that the service of summons
upon the subdivision security guard is not in compliance with
Sec. 7. Rule 14 s1nce he is not relateci" t� her; neither is he
staying at her residence. Moreover, he is not duly authorized
to receive summons for the residents of the village. Hence, the
substituted service of summons is not valid and that the trial
court never acquired jurisdiction over her person.
The trial court issued a resolution denying the·petition
for relief. The defendant filed a motion for reconsideration,
but it was denied by the trial court.
Declared the Supreme Court:
"We have ruled that the statutory requirements of
substituted service must be followed strictly, faithfully,
and fully and any substituted service other than that
authorized by the Rules is considered ineffective (Citing
CHAPTERV 421
SUMMONS
Paluwagan ng Bayan Savings Bank v. King, G.R. No.
78252, April 12, 1989, 172 SCRA 60). However. we frown
upon an overly strict application of the Rules. It is the
spirit, rather than the letter of the Procedural rules. that
governs.
XXX
r/Qonsidering her strict t��truction to the security
guari( she must bear its consequences. Thus, we agret
with the trial court that summons has been properly served•
upon p�titioner and that it has acquired jurisdiction over'
her" (Underscoring supplied)
The Court held, that under th� facts, i;mmmons was,
therefore, properly served (Robinson v. Miralles, 510 SCRA
678, 683-684).
C. Summons by publication
612
-
l. As a general proposition, Sl.lmmons by publication
is not available as a means of acquirihg jurisdiction over thio
person of the defendant in an action iri personam.
2. Against a resident, the recognized mode of servic
is service in person on the defendant under Sec. 6 of Rul
14. In a case where the defendant ca11not be served within
reasonable time, substituted service will apply following Sec.
7, Rule 14, Rules of Court, but not su:rhmons by publication.
3. Summons by publication against a resident in
an action in personam is, however, permissible under th e
conditions set forth in the following n.1.les:
a. Section 14 of Rule 14 (where the identity or
whereabouts of the defendant are unlmoWn);
b. Section 16 of Rule 14 (when the defendant is a
resident temporarily out of the Philippines).
Both provisions apply to "any action" which necessarily
includes an action in personam.
4. Against a nonresident, in an action in personam,
jurisdiction is acquired over the defendant by service upon his

422 CMLPROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
person while he is within the Philippines. It is a long-standing
rule that when the defendant is a nonresident, personal
service of summons in the state is essential to the acquisition
of jurisdiction over his person (Velayo-Fong v. Velayo, 510
SCRA 320, 331-332; Banco De Brasil v. Court of Appeals, 333
SCRA 545, 557). 'i;'J.i,is is, in fact, the on!Y. way of acquiring
jurisdiction over his'.person
in the action.
· ·· · · · if he does notjfoluntarily
···· appear
Summons by publication against a non-resident in an
action in personam is not a proper mode of service. Possible
exception: When the defendant is a foreign private juridical
entity not registered or with no resident agent in the
Philippines (Sec. 12, Rule 14 as amended by A.M. No. 11-3-6-
SC, March 15, 2011). Bar 2016
Service upon a defendant whose identity or whereabouts
are unknown
1. Where the defendant is designated as an unknown
owner, or the like, or whenever his whereabouts are unknown
and cannot be ascertained despite a diligent inquiry, service
may, by leave of court, be effected upon him by publication in
a newspaper of general circulation and in such places and for
such time as the court may order (Sec. 14, Rule 14, Rules of
Court).··
The rule in Sec.· 14 of Rule 14 authorizes summons by
publication in any action and the rule obviously does not
distinguish whether the action is in personam, in rem or
quasi in rem. The tenor of the rule authorizes summons by
publication whate_ver �he action may be as long as the identity
of the defendant is unknown or his whereabouts are unknown
- under the Q.teceding section" (Underscoring supplied).
(See Santos v. PNOC Exploration Corporation, 566 SCRA
272).
2. Remember, however, that it is not correct to use
summons by publication outright. There is a hierarchy of
rules in the service of summons. First, diligent efforts to
serve the defendant in person must be resorted to. Second,
when summons cannot be served in person on the defendant
CHAPTERV 423
SUMMONS
within a reasonable period of time, then substituted service
of summons may be availed of. Third, if the defendant's
whereabouts are unknown and cannot be ascertained with
diligent inquiry, summons by publication may now be availed
of (See Borlongan v. Banco de Oro, G.R. No. 217617, April 5,
win. .
ir 1
Under a previou{'fuling, if the defendJht cannot
be s�rved with summons, the remedy is not to di,smiss the
case, but to hold the case in the archives (Citizens Surety and
Insurance Co., Inc. v. Melencio-Herrera, 38 SCRA 369, 371-
372).
Archiving of cases is a procedural measure deiigned t
:
temporarily defer the hearing of cases in which no immediat
action is expected, but where no grounds exist for their
outright dismissal. Under this scheme, an inactive case is
kept alive but· held in abeyance until the situation obtains
in which action thereon can be taken (Balao v. Ermita, G.R.
No. 186050, June 21, 2016 and August 1, 2017). A case may
be archived, not only when a party cannot be served with
summons, but also for other valid causes as when a party o
a witness cannot appear in court because of threats to his lif
(For further readings, see also Sec. 20, · The Rule on the Writ o··
Amparo).
Service upon a resident temporarily out of the Philippines
-
1. Under Sec. 16 of Rule 14, "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 col,).rt, be also effected out of the Philippines, as
2. The 'preceding section' referred to in Sec. 16 is
necessarily Sec. 15 on extraterritorial service of summons.
Significantly, one of the modes of service of summons under Sec.
15 is "by publication in a newspaper of general circulation..."
Summons by publication, therefore, applies to a resident o.r:
the Philippines who is temporarily out of the country.
424 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
3. Pursuant to Sec. 16 of Rule 14, service of summons
upon a resident of the Philippines who is temporarily out
of the country may, by leave of court, be effected out of the
Philippines, as "under the preceding section (under the rules
on extraterritorial service in Sec. 15 of Rule 14). This suggests
that, from, the phraseology of the rule, the service of summons
may pos?ibly be any of the fci··H•·:owing modes, unless'.i;tuled
:::"-'t
otherwis�:"
(a) by personal service (service in person) as in Sec.
6 of Rule 14;
(b) by publication in . a newspaper of general
circulation together with a registered mailing of a copy of
the summons and the order of the court to the last known
address of the defendant; or
(c) by any manner the court may deem sufficient
(Sec. 16, Rule 14, Rules of Court).
Like in the case of an unknown defendant or one whose
whereabouts are unknown, the rule affecting residents who
are temporarily out of the Philippines applies in any action.
-
4. Let it be noticed that summons by publication may
be effected against the defendant because publication is one
of the modes of service of summons under Sec. 15 of Rule 14.
But this rule authorizing summons by publication appears
superfluous and unrtecessary. Even without such provision,
a resident defendant temporarily outside of the Philippines
may still be served through substituted service under Sec. 7 of
Rule 14.
If a resident defendant is out_ of the country temporarily,
he cannot be expectedly served within a reasonable time.
The fact that "for justifiable causes, the defendant cannot be
served within a reasonable time," constitutes the operative
fact that triggers the application of substituted service aside
from the modes of service provided for in Sec. 16 of Rule 14. It
was thus, ruled that in a suit in personam against a resident
of the Philippines temporarily absent from the country, the
defendant may be served by substituted service because a
CHAPTERV 425
SUMMONS
man temporarily out of the country leaves a definite place of
residence or dwelling where he is bound to return. He also
leaves his affairs to someone who protects his interests and
communicates with him on matters affecting his affairs
or business (Montalban v. Maximo, 22 SCRA 1070, 1078-
1079,: Valmonte v.. Court of Appeals, 252 SCRA 92, .99-100).
Montalban explainiii:
i''.'i}.;..
"A man temporarily absent from this country leaves
a definite place -�f residence, a dwelling where he lives, a
local base, so to speak, to which any inquiry about him
may be directed and where he is bound to return. Where
one temporarily absents himself, he leaves his affairs in
the hands of one who may be reasonably expected to act
in his place and stead; to do all that is necessary to protect
his interests; and to communicate with him from time to
time any incident of importance that may affect him or his
business or his affairs. It is usual for such a man to leave
at his home or with his business associates information as
to where he may be contacted in the event a question that
affects him crops up" (For additional readings, see also
PCIB v. Alejandro, 533 SCRA 738, 754).
Substituted service to be effective against a resident
temporarily out of the Philippines assumes that the absenc e
of the defendant is only temporary and that he has a residenc e
or office or regula:c place of business in-the Philippines. Thus,
where the defendant is already a permanent resident of
another country and is no longer found in the Philippines,
he is no longer a resident defendant temporarily out of the
Philippines. Thus, substituted service of summons upon him
is ineffective. Section 15 of Rule 14 may apply where the cas e
against him is one in tem or quasi in rem.
Extraterritorial service of summons
l. Extraterritorial service of summons under Sec. 15 of
Rule 14 applies when the following requisites concur:
(a) the defendant is a nonresident;
(b) he is not found in the Philippines; and
 426 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
(c) the action against him is either in rem or quasi
in rem (Jose v. Boyan, 414 SCRA 216, 224).
2. The phraseology of the rule indicates that a
fundamental concept to be remembered in extraterritorial
service of summons is that it does not apply to a defendant
who is a resident of the Philippines. 'rt does not also apply
an action in personam (SecPtff, Rule 14, Rules of G}utt).
:•�. ... ,."'!:....
. .•,.•.0
A possible exception to this rule is provided for Under Sec.
16 of.Rule 14 (Residents temporarily out of the Philippines)
where service may, by leave of court, be effected out of the
Philippines as under the preceding section. The preceding
section is Sec. 15 of Rule 14. Note also that Sec. 16 of Rule 14
refers to "any action," hence, either an action in rem, quasi in
rem or m personam.
Actions involved in extraterritorial service of summons
1. The specific actions, which are either in rem or quasi
in rem, that will justify the application of extraterritorial
service of summons in actions involving a nonresident are:
(a) actions that affect the personal status of the
plaintiff;
(b) actions which relate to, or the subject matter
of which is property within the Philippines, in which the
defendant claims a lien or interest, actual or contingent;
(c) actions in which the relief demanded consists,
wholly or in part, in excluding the defendant from an
interest in property located in the Philippines; and
(d) when the defendant's property has been
attached in the Philippines (Sec. 15, Rule 14, Rules of
Court).
2. Clearly, from the foregoing, extraterritorial service
00
of summons applies only where the action is in rem, an
action against the thing itself instead of against the person,
or in an action quasi in rem, where an individual is named
as defendant and the purpose of the proceeding is to subject
his interest therein to the obligation. or loan burdening the
.
CHAPTERV 427
SUMMONS
property. This is so inasmuch as, in in rem and quasi in rem
actions, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdictiorJ. on the court provided that
the court acquires jurisdiction over the res (Banco De Brasil v.
Court of Appeals, 333 SCRA 545, 557).
to 3. The Supreme Court, in a later case;. expla,ins the
rule on service .of summons against non-residents, thus:
;� �� :.J
'!,11.
"x x x: Thus, extraterritorial service of summons
applies only\vhere the action is in rein, that is, an action
against the thing itself instead of against the person, Ol' in
an action quasi in rem, where an individual is named as
defendant and the purpose of the proceeding is to subject
his interest therein to the obligation or loan burdening
the property. The rationale for this is that in in rem and
quasi in rem actions, jurisdiction over the person of the
defendant is not a prerequisite to confer jurisdiction on
the court provided that the court acquires jurisdiction
over the res.
Where the action is in personam, that is, one
brought against a person on the basis of her personal
liability, jurisdiction over the person of the defendant
is necessary for the court to validly try and decide the
case. When the defendant is a non-resident, personal
service of summons within the state is essential to the
acquisition of jurisdiction over the person. Summons on
the defendant must be served by handing a copy thereof
to the defendant in person, or, if he refuses to receive it,
by tendering it to him. This cannot be done, however, if
the defendant is not physically present in the country,
and thus, the court cannot acquire jurisdiction over his
person and therefore cannot validly try and decide the
case against him" (Velayo-Fong u. Spouses Velayo, 510
SCRA 320, 331-332; Banco De Brasil u. Court of Appeals,
333 SCRA 545, 557).
4. If the action is in personam, extraterritorial service
of summons will not be available. There is no extraterritorial
service of summons in an action in personam. Hence,
extraterritorial service upon a nonresident in an action for
injunction, which is in personam, is not proper (Kawasahi
428 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERI ES
Port Setvice Corporation v. Amores, 199 SCRA 230, 237;
Banco De Brasil v. Court of Appeals, ibid.). Where the action
is in personam, one brought against a person on the basis
of his personal liability, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide a
case. However, when the defendant is a nonresident, personal
service of summons in the state is essential to .the acquisition
of}urisdiction over himl(Banco De Brasil V. cd'�rt of Appeals,
ibid.). Note: See amendment to Sec. 12 of Rule 14, authorizing
summons by publication, facsimile, and other electronic means
on defendants which are foreign private juridical entities.
5. An action for injunction is a personal action, as well
as an -action in personam, not an action in rem or quasi in
-
rem. As a personal action, personal or substituted service
of summons on the defendants, not extraterritorial service,
is necessary to confer jurisdiction on the court. In an action
for injunction, the extraterritorial service of summons and
complaint upon the non-resident defendants cannot subject
them to the processes of the regional trial courts which are
powerless to reach them outside the region over which they
exercise their authority (Kawasaki Port Service Corporation
v. Amores, supra). Bar 2009
Modes of extraterritorial service (Bar 2008; 2013)
1. When the conditions · for · the applicability of
extraterritorial service of summons are complied with, the
following are the alternative modes of extraterritorial service,
all of which require a prior leave of court:
(a) By personal service as provided for in Sec. 6 of
Rule 14 governing 'service in person o_n defendant';
=
(b) 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
J.ast known address of the defendant; or
(c) In any manner the court may deem sufficient
(Sec. H, Rule 14, Rules of Court).
CHAPTERV 429
•SUMMONS
2. The last known address of the defendant is the actual
address. In an action for declaration of nullity for marriage,
for example, if the respondent spouse had already actually
left or abandoned the conjugal home, and is now a resident
of another country, the petitioner cannot, in good faith, claim
• . that the conjugal home is still the last known address of the
respondent:(Yu v. Yu, G.R. No. 200072, June 20, 2016).
The pJitonal service (now ser;iie in person on defend.1:ht),
using the procedure in Sec. 6 of Rule 14, will not have'. the
troi Otis diction -
effect of acquiring jurisdiction over the person of the non­
defendant
non - resident
resident defendant even if the summons and the copy of the
-
ever summons
service
complied -
complaint are personally received by him in the country where
he may be found and served. The service, in this case, is made
in compliance with the requirements of due process, not for
the purpose of acquiring jurisdiction over the person of the
defendant.
3. There is a settled rule that a nonresident defendant
who refuses to come to the country voluntarily remains
beyond the personal processes of the court which, therefore,
cannot acquire jurisdiction over him (Banco Espanol-Filipino
v. Palanca, 37 Phil. 921, 930; Perkins v. Dizon, 69 Phil. 186,
189).
In the language of Banco Espanol-Filipino:
"Jurisdiction · over ·the ,person of the defendant,
if acquired at all in such an action, is obtained by the
voluntary submission of the defendant or by the personal
service of process upon him within the territory where
the process is valid. If however, the defendant is a non­
resident and, remaining beyond the range of the personal
process of the court, refuses to come in voluntarily, the
court never acquires jurisdiction over the person at all."
(Banco Espanol-Filipino, supra, 930).
The equally early case of Perkins v. Dizon, supra at 189,
echoes the above rule, thus:
"\iVhen the defendant is a non-resident and refuses
to appear voluntary, the court cannot acquire jurisdiction
over his person even if the summons be served by
 430 CMLPROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
publication, for he is beyond the reach of judicial process.
No tribunal established by one State can extend its
process beyond its territory so as to subject to its decisions
either persons or property located in another State."
Be reminded that, in a proceeding in rem or quasi in
rem, j"urisdiction over the person of the defendant· is not a
pre-requisite to conf!3r jurisdiction on the 1c,p:urt provided that
·· the court acquire�:'jurisdiction over thE{+�s. Nevertheless,
summons must be served upon the defendant, not for the
purpose of vesting the court with jurisdiction over the person
of the defendant, but merely for satisfying the due process
requirement (Asiavest Limited v. Court of Appeals, 296
SCRA 539, 554). Compliance with due process is actually the
underlying purpose of all modes of extraterritorial service.
Application of principles
Example No. 1: An American tourist, while in the
Philippines, incurred hotel bills of P2 million. Without paying
his bills, he surreptitiously left the country. The hotel filed an
action for a sum of money and, with leave of court, effected
summons by publication. The defendant made no appearance
in any form and judgment by default was rendered against
him. Is he bound by the judgment?
Answer: He is not bound by the judgment because the
same was rendered by the court without jurisdiction over his
person. The summons by publication did not enable the court
to acquire jurisdiction over him. Here, the action is one in
personam.
Example No. 2: Mr.Dis a balikbayan, a former Filipino,
and a naturalized Canadian citizen. He visited the country
to attend the funeral of his father from whom he inherited a
parcel of land. He obtained a loan while in the Philippines and
executed a real estate mortgage on his inherited land. He left
without paying the debt. An action to foreclose the mortgage
was filed. How may the court obtain jurisdiction over the
person of Mr. X?
.Answer: There is no way. He is already out of the country.
However, jurisdiction over the person of the defendant is
CHAPTERV 431
SUMMONS
not necessary and, hence, irrelevant under the facts of the
case because the action for foreclosure is not an action in
personam. A foreclosure suit is a quasi in rem action. In this
kind of action, jurisdiction over the person of the defendant
is not required. Summons by publication or other modes of
extraterritorial ·service unde.r Sec. 15 of Rule 14 is enough to.
acquir;�jurisdiction over th�.res. May the court, �1:ierefore,
validlfrender a judgment in Ifie foreclosure proceeci:mgs? The
court can. It has jurisdiction over the res as long as summons
by any of the means allowed under the rules on extraterritorial
service is effected. If however, upon learning of the suit he
appears in the action, the court acquires jurisdiction over
hisperson, The suit, in effect, becomes one in personam
Example No. 3: Mexicano, a tourist in the Philippines,
by his employment of force and intimidation, contracted a
marriage with Filipina, a hotel receptionist. When Mexican0
left for Mexico to visit his parents, Filipina filed an action
for annulment of the marriage with damages of P3 million.
With leave of court, extraterritorial service of summons by
publication in a newspaper of general circulation was effected.
A copy of the summons and order of the court were also sent
by registered mail to the last known address of Mexicano. The
manner of summons was determined by the court to be the
most sufficient under the circumstances. Mexicano did not
appear in the action. The court later decreed the annulment
of the marriage and awarded damages after all procedural
and substantive requirements were complied with. Was the
judgment validly rendered?
Answer: The judgment was validly rendered in so far as
the decree of annulment is concerned. The action is one in rem
sinc-e it affects the personal status of the plaintiff. In this kind
of action, jurisdiction over the res is sufficient. Jurisdiction
over the person of the defendant is not essential in this case
so, whether or not there was jurisdiction over the person of
Mexicano, this fact did not affect the authority of the court to
decide on the issue of annulment.
However, the judgment of the court awarding damages
to Filipina is void as to the defendant. By its nature, a claim
432 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
for damages is in personam. The court is without jurisdiction
to award damages unless it has first acquired jurisdiction
over the person of Mexicano. The only way by which this type
of jurisdiction may be acquired in the case at bar is either
through service in person upon Mexicano in the Philippines
or by his voluntary appearance in the action. Neither of these
occurred in the case under consideration.
·i:�(i;-.f
Suits against non-resident defendants who have properties·
in the Philippines but are outside of the country
1. There are situations where a non-resident defendant
has properties in the Philippines probably because he used to
be either a citizen or a resident of the country. If the suit is
in personam, as when the suit is for a sum of money, and the
non-resident defendant is no longer found in the Philippines,
summons by publication and other modes provided for in Sec.
•
15 of Rule 14, would be ineffective to acquire jurisdiction over
his person. The modes of summons under the said provision of
the Rules would be available only in an action in rem or quasi
in rem.
As previously discussed, being an action in personam, the
remedy is to file the suit and, at the same time, avail of the
provisional remedy of attachment. Under Sec. l(f) of Rule 57,
one ground upon which the writ of preliminary attachment
may issue is in "ari action against a party who· does· not reside
and is not found in the Philippines."
Following established principles, jurisdiction over the
person of the defendant would no longer be required when
the court issues a writ of preliminary attachment against
the defendant's properties and such properties are actually
attached pursuant to the writ. The suit has assumed the
character of an action quasi in rem. In this type of action,
jurisdiction over the res is what is required for the court to
validly try the case. After availing of extraterritorial service of
summons, the suit can then proceed despite the absence of the
defendant because, in this case, the property of the defendant
would novv be the object of judicial power.
CHAPTERV 438
SUMMONS
As held by the Court:
"In case the defendant does not reside and is not
found in the Philippines, ...the remedy of the plaintiff, in
order for the court to acquire jurisdiction to try the case is to
convert the action into a proceeding in rem or quasi in rem
by attaching the property of the defendant... The service ·
of summons in this lase (which may be by publication
coupled with the seridihg by registered mail bf the copy
of the summons and the court order to the last known
address of the defendant), is no longer for the purpose
of acquiring jurisdiction but for the compliance with the
requirements of due process" (Philippine Commercial
International Bank v. Alejandro, 533 SCRA 738, 752).
2. Attachment is not always needed where th
defendant, in an action in personam, is not found in th
Philippines. Example: Where the defendant is a resident, wh
D-
is temporarily out of the Philippines, attachment of his/her
property in an action in personam is not necessary in order fo"'r
the court to acquire jurisdiction to hear the case because th e
defendant may be served by substituted service. Substituted
service of summons (under the present Sec. 7, Rule 14 of th
Rules of Court) is the normal mode of service of summon.s
that will confer jurisdiction on the court over the person of
residents temporarily out of the Philippines. Meaning, servic e
of summons may be effected by leaving-copies of the summons
at the defendant's (a) residence with some ·person of suitable
age and discretion residing therein, or (b) office or regular
place of business with some competent person in charg e
thereof. Hence, the court may acquire jurisdiction over an
action in personam by mere substituted service without need
of attaching the property of the defendant (See- MorJ,talban v.
11/Jaximo, 22 SCRA 1070; For further readings, see Philippin e
Commercial International Bank v. Alejandro, 533 SCRA 738
752-754).
-oOo-

Chapter VI
PROCEEDINGS AFTER SERVICE
OF SUMMONS AND DISMISSAL OF ACTIONS
:,.�!t •\•
Preliminary statements
Recall that the summons served upon the defendant
directs him to answer within the time fixed in the Rules. It is
coupled with a notice that, unless the defendant so answers,
the plaintiff will take judgment by default and may be granted
the relief applied for (Sec. 2, Rule 14, Rules of Court).
The filing of a complaint is not, in all cases, followed by
the filing of an answer (Alvarado v. Ayala Land, Inc., G.R.
No. 208426, September 20, 2017). There are options available
to the defendant other than the filing of an answer to the
complaint.
For instance, if there are allegations or claims in the
complaint that are not spelled out with sufficient clarity or
particularity, the preparation of a reasonably intelligent
responsive pleading. is not possible. ·The. more viable option
of the defendant in this case is not to serve and file either
an answer or a motion to dismiss but to file a motion for bill
of particulars. Under Sec. 1 of Rule 12 of the Rules of Court,
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." The purpose of the motion
is to enable the movant "properly to prepare his responsive
pleading."
Even if the complaint's averments are clear and definite
enough to allow the filing of an answer, the defendant may
elect not to file an answer. He may, instead, opt to file a motion
434
CHAPTER VI · 43li
PROCEEDINGS AFTER SERVICE OF SUMMONS
'
·AND DISMISSAL OF ACTIONS
to dismiss the complaint if a ground for the dismissal unde"
Rule 16 exists.
Hence, three options are available to the defendant upon
receipt of the complaint, to wit:
. .
(a) Filing of a motion for bill of particulars;
(b) Filing/pf a motion to dismisfl:or
(c) Filing.of an answer to the complaint.
A. MOTION FOR BILL OF PARTICULARS
1. Although, under the Rules, the defendant i
:
required to answer the complaint within 15 days from servic
of summons (Sec. 1, Rule 11, Rules of Court), the defendant
need not file his answer to the complaint within the required
period if there are matters in the complaint, which are vagu
or ambiguous or not averred with sufficient definiteness.
Instead, he may file a motion for bill of particulars (Rule 1 �,
Rules of Court).
2. As long as the allegations in a complaint mak e
out a cause of action, the ambiguity in some allegations of
the complaint or the failure to allege facts with sufficient -
particularity does not justify the filing of a motion to dismis1.,.
The pr9per remedy is to file a motion for bill of particulars.
3. It· must be made clear that a motion for bill ·of
particulars is not directed only to a complaint. It is a motion
that may be addressed to any pleading which, in the perception
of the movant, contains matters which are not alleged with
sufficient definiteness or particularity.
When to rne the motion
A motion for bill of particulars is to be filed be/or e
responding to a pleading (Sec. 1, Rule 12, Rules of Court).
The period to file the motion refers to the period for filing the
responsive pleading in Rule 11. Thus, where the :motion fo 1-
bill of particulars is directed to a complaint, the motion should
be generally filed within 15 clays after service of summons,
as provided under Sec. 1 of Ru.le 11. If the motion is directed
· 436. CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
to a counterclaim or cross-claim, then the same must be filed
within 10 days from service of the counterclaim or cross-claim
which is the period provided for under Sec. 4 of Rule 11. In
case of a reply to which no responsive pleading is provided for
by the Rules, the motion for bill of particulars must be filed ..
within 10 days from the servfoe of said reply (Sec. 1, ule 12,
Rules 6f::'Court).
Purpose of the motion
1. The purpose of a motion for bill of particulars
is to seek an order from the court directing the pleader
to submit a bill of particulars which avers matters· with
"sufficient definiteness or particularity" to enable the movant
to properly prepare his responsive pleading (Sec. 1, Rule 12,
Rules of Court). The motion is not availed of to enable the
movant to prepare for trial or to discover the evidence of the
adverse party. For such purpose, the appropriate tools are the
discovery procedures from Rules 23 to 29 and the mandatory
pre-trial under Rule 18 of the Rules of Court.
2. In less technical terms, a 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 the cause of action or defense. Without
the clarifications sought by the motion, the movant · may be
deprived of the opportunity to submit an intelligent responsive
pleading.
3. It would not be proper for a motion for bill of
particulars to call for the production of the particulars
constituting malice, intent, knowledge or condition of the
mind. Under the Rules (Sec. 5, Rule 8, Rules of Court) such
matters may be averred generally. To require a pleader to do
so would be to require the statement of evidentiary facts in a
pleading. Sec. 1 of Rule 8 mandates the omission of statements
of mere evidentiary facts.
It would not, however, be incorrect to move for a bill
of particulars to require the averment of the particular
circumstances of fraud or mistake. Under the Rules (Sec. 5,
CHAPTER VI 437
PROCEEDINGS AFI'ERSERVICE OF SUMMONS
AND DISMISSAL OF ACTIONS
Rule 8, Rules of Court), such matters must be alleged with
particularity. It is submitted, however, that when the omission
of the particulars constituting fraud results into an absence of
one or more elements of the cause of action involving fraud,
such omission could give rise to a failure to state a cause of
action.
4. A moti6n for bill of particular�'to require a pleader tl'i"
set forth matters showing the jurisdiction of a court to render
judgment is not ·proper. The provisions of Sec. 6, Rule 8 are
clear: In pleading a judgment or decision, it is sufficient to aver
the same without setting forth matters showing jurisdiction to
render it. The rule applies in pleading a judgment or decision,
not only of a domestic court, but also of a foreign court. It,
likewise, applies to a judgment or decision of a quasi-judicial
tribunal, or a board or officer (Sec. 6, Rule 8, Rules of Court).
5. A motion for bill of particulars filed for the purpos e
of requiring the pleader to specify the details leading to the
performance or occurrence of all conditions precedent is not
proper because under Sec. 3 of Rule 8, a general averment
of the performance or occurrence of all conditions precedent
shall be sufficient.
6. In Republic v. Sandiganbayan, 540 SCRA 431, 448-
449, the Court ruled th.at an allegation that the "defendant
acted 'in unlawful concert' with the other defendant in
illegally amassing assets, property and funds in amounts
disproportionate to the latter's income," is a proper subject of
a motion for bill of particulars. Plaintiff is bound to clarify the
specific nature, manner and extent of the alleged collaboration
between the defendants. The allegation in the complai_nt
does not actually state the ultimate facts to show the alleged
"unlawful concert." Allegations couched in general terms ar e
not statements of ultimate facts.
Purpose of a motion for bill of particulars in a criminal case
(Bar 2018)
Note that, in a criminal case, the purposes of a motion
for bill of particulars are to enable the movant to (a) properly
 438 CMLPROCEDURE,VOLUME I
THE BAR LECTURES SERIES
.
plead, and (b) prepare for trial (Sec. 9, Rule 116, Rules of
Court).
Requirements for the motion
Aside from the requirements "for a motion as set forth in
RU:l� 15, the motion shall ,point out or specify tne (a) defects
cotrtplained of, (b) paragtaphs wherein they af� contained,
and (c) details desired (Sec. 1, Rule 12, Rules of Court).
Action of the court (Bar 2008; 201 0; 2012)
1. Upon receipt of the motion, the clerk of court must
immediately bring the same to the attention of the court (Sec.
2, Rule 12, Rules of Court).
2. The motion having been brought to the attention of
the court, it has three possible options, namely, (a) to deny the
motion outright, (b) to grant the motion outright, or (c) to hold
a hearing on the motion or allow the parties the opportunity
to be heard (Sec. 2, Rule 12, Rules of Court). The options
available to the court disclose that a hearing is not mandatory
before it denies or grants the motion, the holding of a hearing
being one that is addressed to judicial discretion.
. Compliance with the order:
1. If the motion for bill of particulars is granted, in
whole or in part, the court shall order the pleader to submit
a bill of particulars to the pleading to which the motion is
directed. The compliance must be effected within 10 days from
notice of the order, unless a different period is fixed by the
court (Sec. 3, Rule 12, Rules of Co;rt). -Compliance with the
order is not necessarily within 10 days from notice of the order
if the court fixes a different period for compliance.
court
fix the period
can
2. In complying with the order, the pleader may file the
bill of particulars or a more definite statement either in (a) a
separate pleading, or (b) in the form of an amended pleading.
In either case, a copy thereof is required to be served upon the
adverse party (Sec. 3, Rule 12, Rules of Court).
CHAPTER VI 439
PROCEEDINGS AFI'ER SERVICE OF SUMMONS
AND DISMISSAL OF ACTIONS
Bill of particulars as part of the pleading
The bill of particulars submitted becomes part of the
pleading for which it is intended (Sec. 6, Rule 12, Rules of
Court).
Effect of n<:>9�compliance or insuft;ifient compliance wit�_the
,
order of the:··court :,,: :,:.
If the order is not obeyed or· :if there is an insufficient
compliance of the order, the court has the following options:
(a) to order the striking out of the pleading, (b) to order th
e.
striking out of the portions of the pleading to which the order
was directed, or (c) to make such other order it may deem just
:
(Sec. 4, Rule 12, Rules of Court).
Stay of period to file responsive pleading
l. A motion for bill of particulars is a mere motion and
not a pleading. Whether or not the motion of the movant is
granted, he may still file his responsive pleading. When h
files a motion for bill of particulars, the period to file th
responsive pleading is stayed or interrupted.
2. After service of the bill of particulars or after notice
of the denial of his motion, the movant may file his responsive
pleading within the period to which he was entitled at the
time the motion for bill of particulars was filed. If he has still
11 days to file his responsive pleading at the time the motion
for bill of particulars was filed, then he has the same number
of days to file his responsive pleading from the notice of the
denial of his motion (See Sec. 5, Rule 12, Rules of Court). This
is because under Sec. 5 of Rule 12, the filing of a motion for bill
of particulars stays the period to file a responsive pleading.
If the movant has less than five days to file his pleading
after service of the bill of particulars or after notice of the
denial of his motion, the period to file his pleading shall,
nevertheless, be not less than five days in any event (Sec. 5,
Rule 12, Rules of Court). Thus, from notice of the denial o f
his motion, the minimum period he has to serve and file hi s
 440 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
responsive pleading is five days even if only one day is left
for him to file his pleading at the time the motion for bill of
particulars is filed.
B. MOTION TO DISMISS
Assuming that/the allegations in th�>complaint have
,, been made clear an.d'.'' particularized by th�lfiling of a bill of
. particulars, the defEJn,dant may elect not to file his answer
immediately. He may first explore the possibility of filing a
motion to dismiss under Rule 16. If there is no ground for a
motion to dismiss, he has to file his answer.
While the filing of a motion to dismiss is not prohibited,
the remedy being an integral part of the Rules of Court, the
current policy of the Supreme Court is not to encourage the
filing of a motion to dismiss but, to file an answer to the
complaint. Thus, within one day from receipt of the complaint,
summons shall be prepared which shall contain a reminder
to the defendant to observe restraint in filing a motion to
dismiss and instead allege the grounds thereof as defenses in
the answer (A.M. No. 03-1-09-SC [I Al.I}, July 13, 2004).
A motion to dismiss is not a pleading
A motion to dismiss is not a pleading. It is merely a
motion. Under the Rules, a motion is an application for relief
other than l)y a pleading (Sec. 1, Rule 15, Rules of Court).
The pleadings allowed under the Rules are: (a) complaint,
(b) answer, (c) counterclaim, (d) cross-claim, (e) third (fourth
etc.)-party complaint, (f) complaint-in-intervention (Sec. 2,
Rul� 6, Rules of Court), and (g) reply (Sec. 10, Rule 6, Rules of
Court). A motion is not one of those specifically designated as
a pleading under the Rules of Court.
Hypothetical admissions o·f a motion to dismiss (Bar 1989}
1. A motion to dismiss hypothetically admits the truth
of the factual allegations in the complaint (Peltan Development,
Inc. v. Court of Appeals, 270 SCRA 82, 91; Cuarto v. De Luna,
CHAPTER VI ,41J1
PROCEEDINGS AFTER SERVICE OF SUMMONS
AND DISMISSAL OF ACTIONS
22 SCRA 459, 461). For instance, a claim that a complaint failc
to state a cause of action asserts that even if the complaint's
allegations were true, the plaintiff would still be in no positior
to proceed against the defendant (Alvarado v. Ayala Land,
Inc., G.R. No. 208426, September 20, 2017).
Hqvyever, the hypothetic�l admission extends; only to
such ni'atters of fact that hav� been sufficiently ple�c:led and
not to mere epithets chargin.g fraud, allegations:of legal
conclus10ns or erroneous statements of law, inferenc.es fron:7
facts not stated, matters of evidence or irrelevant matterS
(De Dias v. Bristol Laboratories, 55 SCRA 349, 354). Only
deemed hypothetically admitted are material allegations, not
conclusions. An allegation that a contract is an "equitabl e
mortgage" is a conclusion and not a material allegation.
Hence, it is not deemed admitted by the motion to dismiss
(Dalandan v. Julio, 10 SCRA 401, 410).
2. A hypothetical admission could be illustrated,
thus: If the plaintiff files an action for damages against the:
defendan.t who files a motion to dismiss, the defendant, in
effect, says that even assuming the facts to be true as alleged
by the plaintiff, the latter has failed to show that he has a right
to relief because his action has prescribed or that the court,
where the action was filed, has no jurisdiction over the subject
matter of the complaint. The filing of a motion to dismiss does
not amount to an actual admission of the material allegations
in the complaint. The admission is not the judicial admission
contemplated in Sec. 4 of Rule 129 of the Rules of Court. As
the jurisprudence cited above puts it, the admission is merely
"hypothetical."
Omnibus motion (Bar 2010)
1. When a motion to dismiss is filed, all grounds for
objection available at the time the motion is filed must be
invoked in the motion. This is required under the "Omnibus
Motion Rule." The objections which are not invoked are
deemed waived.
Sec. 8 of Rule 15 provides that "a motion attacking
pleading, order, judgment or proceeding shall include all
442 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
objections then available, and all objections not so included
shall be deemed waived." A motion to dismiss is an "Omnibus
Motion" and, thus, covered by the "Omnibus Motion Rule"
because, by its nature, it attacks a pleading by praying for its
di$J11issal.
2. The 'Qpinibus Motion RulEltapplies only when a};
motion to dismiss is filed. If no motiorf'to dismiss is filed, any:'
of the grounds for dismissal under Rul� 16 may be pleaded as
an affirmative defense in the answer (Sec. 6, Rule 16, Rules of·
Court). No defense is waived in this case because no motion
to dismiss was filed. In relation to the waiver of defenses,
there is indeed an unmistakable difference in the legal effects
between filing and not filing a motion to dismiss.
Thus, it has been held that if no motion to dismiss has
been filed, any of the grounds for dismissal provided in the
Rules may be pleaded as an affirmative defense in the answer,
and, in the discretion of the court, a preliminary hearing may
be had thereon as if a motion to dismiss had been filed. Based
on the foregoing, a preliminary hearing undeniably is subject
to the discretion of the trial court. The trial court's order
granting or dispensing with the need for a preliminary hearing
may not be corrected by certiorari absent any showing that
the trial court acted without jurisdiction or in excess thereof
or with such grave abuse of discretion as would amount to
lack of jurisdicticin (Misamis Occidental II Cooperative, Inc. v.
David, 468 SCRA 63, 71).
While the court may elect to hold a preliminary hearing
on the affirmative defenses raised in the answer, such a
hearing is not necessary when the affirmative defense is
failure to state a cause of action, and that it is; in fact, error
for the court to hold a preliminary hearing to determine the
existence of external facts outside the complaint. This is
because the sufficiency of the statement of the cause of action
is determined on the basis only of the facts alleged in the
complaint (See Tr illanes IV v. Castillo-Marigomen, G.R. No.
223451, Jl!Iarch 14, 2018; citation of the Court omitted).
3. Under Sec. 6 of Rule 16 of the Rules of Court, a preli­
minary hearing on the affirmative defenses may be allowed
CHAPTER VI 443
PROCEEDINGS AFTER SERVICE OF SUMMONS
AND DISMISSAL OF ACTibNS
only when no motion to dismiss has been filed. Section 6,
however, must be construed in the light of Sec. 3 of the same
Rule, which requires courts to resolve a motion to dismiss
and prohibits deferment of such resolution on the ground of
indubitability. Thus, Sec. 6 disallows a preliminary hearing of
affirmative defenses once ,a motion to dismiss has been filed
(Trillanes IV V. Castillo-Mq,rigomen, G.R. No. 22$451, March
14, 2018).
Contents and form of the motion to dismiss
1. The motion to dismiss, like any other motion, shall
state the relief sought and the grounds upon which it is
based and, if required by the Rules or necessary to prove th e
facts alleged therein, it shall be accompanied by supportin g
affidavits and papers (Sec. 3, Rule 15, Rules of Court).
2. The motion shall be set for hearing by the applicant
(Sec. 4, Rule 15, Rules of Court) and shall contain a notice of
hearing addressed to all parties concerned. Such notice shall
specify the time and date of the hearing which must not b e
later than 10 days after the filing of the motion (Sec. 5, Rul
15, Rules of Court).
3. The notice requirement in a motion is mandatory
and its absence renders the motion defective. As a rule, a
motion without a notice of hearing is considered pro forma
and does not affect the reglementary period for the filing of the
requisite pleading (Jehan Shipping Corporation v. National
Food Authority, 477 SCRA 781, 788).
Time to file the motion
1. Within the time for filing the answer but before filing
said answer, a motion to dismiss may be filed on any of the
grounds mentioned in Rule 16 (Sec. 1, Rule 16, Rules of Court;
Alvarado v. Ayala Land, Inc., G.R. No. 208426, September 20,
2017).
2. A motion to dismiss that is submitted after the
answer has been filed, is considered filed out of time and the
defending party is deemed estopped from filing the motion to
 444 .• CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
dismiss (Philuille u. Javier, 477 SCRA 533, 537). As a rule,
a motion to dismiss is not to be entertained after an answer
has been filed (Aluarado u. Ayala Land, Inc., G.R. No. 208426,
September 20, 2017).
When a motic:m to dismiss may be fi,�d even after the answ.e . r
has been setyed and filed \< .\. �.
. .,
The rule, that a motion to dismiss under Rule 16 should
be filed within the time for the filh1g of an answer, is �ot
absolute. A motion to dismiss may be filed even after the filing
of the answer, and will not be considered filed out of time if
the ground raised in the motion is either of the following and
such ground appears from the pleadings or the evidence on
record:
(a) that there is lack of jurisdiction over the subject
matter;
(b) that there is another action pending between
the same parties for the same cause;
(c) that the action is barred by a prior judgment; or
(d) that the action is barred by the statute of
limitations (Sec. 1, Rule 9, Rules of Court; Baldado u.
Mejica, 6,93 SCRA 1, 12, March 11, 2013; for further.
readings, see Manuel Uy & Sons, Inc. u. Valbueco, Inc., G.R.
No. 179594, September 11, 2013; see Edron Construction
Corporation u. Provincial Government of Surigao Del
Sur, G.R. No. 220211, June 5, 2017; Aluarado u. Ayala
Land, Inc., G.R. No. 208426, September 20, 2017).
Any of the afove grounds for dismissal which supplies a
justification for the court to dismiss a complaint or for filing a
motion to dismiss after an answer has been filed, must appear
either from the pleadings or the evidence on record (See Sec. 1,
Rule 9, Rules of Court). This rule implies than an action may
still be dismissed on a ground which only became known after
the filing of an answer as when the evidence discloses that the
action has already prescribed.
CHAPTER VI . 445
PROCEEDINGS AFTER SERVICE OF SUMMONS
AND DISMISSAL OF ACTIONS
Under Sec. 1 of Rule 9, defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed
waived. The above grounds, it has been recently ruled, do not
only supply exceptions to the rule that defenses and objections
not pleaded either in a motion t9 dismiss or in an answer are
. deemed waived. They are also the grounds which allow courts
t(b dismiss cases motJ}>roprio provided thafI;the ground for
dismissal is apparent:from the pleadings or<the evidence on
i'.ecord (Heirs of Valien:tes u. Ramas, 638 SCRA 444, 451; see
Edron Construction C�rporation u. Prouinci'al Government
of Surigao Del Sur, G.R. No. 220211, June 5, 2017). Note
again that the ground for dismissal must be evident from the
pleadings or evidence on record before a dismissal may be
effected by the court on its own motion (De Leon u. Chu, G.R.
No. 186522, September 2, 2015). Bar 2012
Grounds for motion to dismiss
Under Sec. 1 of Rule 16 of the Rules of Court, a motion to
dismiss may be filed on any of the following grounds:
(a) That the court has no jurisdiction over the
person of the defending party;
s�bject matter of the claim;
=
(b) That the court has no jurisdiction over the
(c) That the venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between
the same parties for the same cause; Bar 2010 ↳ separate
action
(f) That the cause of action is barred by a prior
judgment or by the statute of limitations; → tesivdicatn
(g) That the pleading asserting the claim states no
cause of action;
.
-
(h) That the claim or demand set forth in the
plaintiffs pleading has been paid, waived, abandoned or
otherwise extinguished;
 "446 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
(i) That the claim on which the action is founded
is unenforceable under the provisions of the statute of
frauds;
- and
-
G) That a condition precedent for filing the claim
has not been complied with. Bar 2011
Laches a's a ground for a motfon to dismiss under ROie 16
In one case, in reversing the RTC's order of dismissal,
the Court of Appeals held that laches could not be a ground to
dismiss a complaint since it is not one of the grounds for the
dismissal of a civil action under Sec. 1 of Rule 16 of the Rules
of Court.
The Supreme Court categorically held that the Court of
Appeals "is not entirely correct." Under paragraph (h) of Sec.
l of Rule 16, one of the grounds for the dismissal of an action
is where a claim or demand set forth in the plaintiffs pleading
has been paid, waived, abandoned, or otherwise extinguished.
The Court declared: The language of the rule, particularly
on the relation of the words "abandoned" and "otherwise
extinguished" to the phrase "claim or demand deemed set forth
in the plaintiffs pleading," is broad enough to include, within
its ambit, the defense of bar by laches. However, when a party
moves for the dismissal of the complaint based on laches, the
trial court must set a hearing on the motion where the parties
shall submit, not only their arguments on the questions of
law, but also their evidence on the questions of fact involved.
Thus, being factual in nature, the elements of laches must be
proved or disproved through the presentation. of evidence by
the parties (Pineda v. Heirs of Eliseo Guevara, 515 SCRA 62'T,
636)
. Resj,1d!cata as a ground for a motion to dismiss; aspects of
res judicata {Bar 201 'i)
1. In its literal meaning, resjudicata refers to a matter
adjudged. This doctrine bars the relitigation of the same
claim between the parties (claim preclusion or bar by a prior
CHAPTER VI . ii, I,
PROCEEDINGS AFTER SERVICE OF SUMMONS
AND DISMISSAL OF ACTIONS
judgment). It also bars the relitigation of the same issm
different claim between the same parties (issue precltHJl0,1 01
conclusiveness of judgment). It is applicable in civil caooo it,111
is not recognized in criminal proceedings (People v. JJJor,Jlh1,
G.R.. No. 214300, July 26, 2017; For additional readi71,lf/1, 1w1
Hilario v. 11.firandq, G.R. No: 196499, No�ember 28; 2
Under the d&:trine of res judicatii;i' a final j1Hln1111J1il
or decree on the merits rendered by a court of co111pul,,J1rl
jurisdiction is conclusive of the rights of the ptll'Ll1m o,
their privies in all later suits and on all points and 1111,t,l,,�1
determined in the previous suit. The principle upon whl11I, ih,
doctrine rests is that the partiei=, ought not to be pu1•111lli/,·,,j
to litigate the same issue more than once. When a I lj1l i I
. fact has been judicially tried and determined by 11 11q11, I Id
competent jurisdiction, so long as it remains unrov1111U 11 1 l,
should be conclusive upon the parties and those in p P lvll
them (Teng v. Ting, G.R. No. 184f137, September 21,
The public at large also has an interest in seoinH l,h11
rights and liabilities once established remain fixed. lf f\ omn
quiets title to land, for example, everyone should llo nblo l,u
rely on the finality of that determination. Otherwlno, in,111s,
business transactions would be clouded by uncertai11(,St, 'l'lrn,i
the most important purpose ofres judicata is to prov 1 dn ,,, 11 ,, HI•
for both the party litigants and the public. As tho /-J!i1i1'11111
1
Court has observed, "res judicata thus encourages 1•111111, Ii�'.) Uil
judicial decision, bars vexatious litigation, and free11 iii 1111•1 iII i'I
to resolve other disputes" (Degayo v. Magbanua-JJ(1111!11n1111,
G.R. No. 173148, April 6, 2015; See also Tala ReaU, v .Y1 i 1•11/t•
Corporation v. Banco Filipino Savings & Mortgage 1/o Ii /J, 0. fr,
No. 181369, June 22, 2016).
2. The doctrine of res judicata is set forth I 11 /-:K
of Rule 39 of the Rules of Court. This provision co11l1,l'rOli
two distinct aspects: (1) bar by former or prior ju<l(fn1011L
(claim preclusion), and (2) conclusiveness of judgr11011 t (1nm i
1 . )
prec_us1on
 448 - CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Elements of res judicata (in relation to the concept of "bar
by a prior judgment") (Bar 2011)
1. The concept of res judicata has the following
elements:
(a) the former j�dgment must be final;.:,
1,fL .!'�·1{.-
(b) the court which rendered it had·:Jurisdiction
. over the subject matt�r and the parties;
(c) the judgment must be on the merits; and
(d) there must be between the first and the second
actions, identity of parties, subject matter and causes of
action (Heirs of Dacanay u. Siapno, Jr., G.R. No. 185169,
June 15, 2016).
The application of the doctrine of res judicata does not
require absolute identity of parties but merely substantial
identity of parties. There is substantial identity of parties
when there is community of interest or privity of interest
between a party in the first and a party in the second case even
if the first case did not implead the latter (Heirs of Dacanay u.
Siapno, Jr., ibid.).
Elements of res jud�cata (in relation to "conclusiveness of
judgment")
-
The elements. of res judicata in relation to the concept of
conclusiveness of judgment are the following:
(a) The judgment sought to bar the new action
must be final;
(b) The decision must have been rendered by a
court having jurisdiction over the subject matter;
(c) The disposition of the case must be a judgment
on the merits; and
(d) There must be, as between the first and second
action, identity of parties and subject matter but not
identity of causes of action.
CHAPTER VI 449
PROCEEDINGS AFTER SERVICE OF SUMMONS
AND DISMISSAL OF ACTIONS
Distinctions between the two types of res judicata
1. Jurisprudentially, res judicata by ''bar by a prior
judgment" operates as a bar to the prosecution of a second
action upon the same claim, demand or cause of action. It does
not primarily refer to the issues already determined but to
the claim or cause of action which is .the same in the first and
second actioni\Jn traditional terminol�gy, this aspect is know.�
as merger or bar; in modern termiriology, it is called clai'm
preclusion. Hence, where in a previous action to collect a sum
of money, the court had already finally resolved the action
in favor of the defendant, a subsequent complaint based on
the same cause of action between the same parties shall be
barred by a prior judgment. Also, if the court has resolved
the case of an accion reiuindicatoria in favor of the defendant
· with finality, the same case of accion reiuindicatoria between
the same parties, if brought later by the losing party, shall be
barred by a prior judgment.
On the other hand, res judicata by "conclusiveness of
judgment" precludes the relitigation of a particular fact
of issue in another action between the same parties on a
different claim or cause of action. This is traditionally known
as collateral estoppel; in modern terminology, it is called issue
preclusion (Degayo u. Magbanua-Dinglasan, G.R. No. 173148,
April 6, 2015; See al.so Dacanay u. Siapno, Jr., G.R. No. 185169,
June 15, 2016; For further readings, see Almagro u. Philippine
airlines, Inc., G.R. No. 204803, September 12, 2018). It does
not bar a different case between the same parties since there
is no required identity of causes of action in this type of res
judicata. What it bars is the relitigation of an issue already
resolved with finality in a_previous case between the same
parties. Thus, if M files an action for forcible entry, involving
the same land, against BB, the latter can no longer invoke
ownership of the land as a defense, if the issue of ownership
has already been finally determined in a prior case of accion
reiuindicatoria between the parties. The judgment on the
issue of ownership is already conclusive between them. Note
that in this illustration, there is no identity of causes of action
but the matter of ownership can no longer be relitigated in a

450 CIVIL PROCEDURE, VQLUME I
THE BAR LECTURES SERIES
subsequent case between the parties even if such case rests on
a different cause of action.
2. There is only identity of parties and subject matter
in res judicata by conclusiveness of judgment but there is no
identity of causes of action. Since there is no identity of causes
of action, the judgme11t in the first case is copclusive only as
:to those matters acttl}lly and contravenedfahd determined
· (Spouses Rosario u. Aluar, G.R. No. 212731, September 6,
2017).
Conclusiveness of judgment applies whe.re there is a
substantial identity of parties in the first and second cases,
but there is no identity of causes of action. Simply put,
conclusiveness of judgments bars the relitigation of particular
facts or issues in another litigation between the same parties
on a different claim or cause of action. Thus, if in a previous
case between the parties, it has already been determined who
participated in the illegal strike and defied the return-to-work
order, such fact can no longer be relitigated in a subsequent
case between the parties (See Almagro u. Philippine Airlines,
Inc., C.R. No. 204803, September 12, 2018).
.Application of res judicata to quasi-judicial proceedings
It has been held that the rule on res judicata, which
forbids the reopening of a matter once judicially determined by
competent authority, applies as well to the judicial and quasi­
judicial acts of public, executive or administrative officers and
boards acting within their jurisdiction as to the judgments of
courts having general judicial powers. The Director of Lands
is a quasi-judicial officer. As such officer, his decisions and
_ orders rendered pursuant to his quasi-judicial authority,
have, upon their finality, the force and binding effect of a final
judgment within the purview of the Doctrine of Res Judicata
(Heirs of Wenceslcto Tabia u. Court of Appeals, 516 SCRA 431,
443).
No res judicata in criminal proceedings
Res judicata is a doctrine of civil law and, thus, has no
bearing on criminal proceedings. Hence, the argument that
CHAPTER VI 451
PROCEEDINGS AFTER SERVICE OF SUMMONS
AND DISMISSAL OF ACTIONS
the dismissal of a case during preliminary investigation bars a
further reinvestigation because of the doctrine of res judicata
is untenable. Even if the argument were to be expanded to
contemplate "res judicata in prison grey," or the criminal
law concept of double jeopardy, the reinvestigation cannot be
barred by reason of double jeopardy. The dismissal of a case
during pr�Mminary investigation, does not constitute 4,2u , ble
jeopardy, preliminary investigation not being part of the.hial
(Trinidad v. Office of the Ombud;man, 539 SCRA 415, 423-
424). Bar 2010
Dismissal on the ground of litis pendentia
1. Litis pendencia is a Latin term, which literally
means "a pending suit" and is variously referred to in some
decisions as lis pendens and auter action pendant. As a ground
for dismissal of a civil action, it refers to the situation where
two actions are pending between the same parties for the same
cause of action, -so that one of them becomes unnecessary and
=
vexatious. It is based on the policy against multiplicity of suits
(Grace Park International Corporation v. East West Banking
Corporation, G.R. No. 210606, July 27, 2016).
2. The requisites in order that an action may be
dismissed on the ground of litis pendencia are: (a) the identity
of parties, or at least such as representing the same interest
in both actions; (b) the identity of rights asserted and relief
prayed for, the relief being founded on the same facts; and
(c) the identity of the two cases such that judgment in one,
regardless of which party is successful, would amount to
res judicata in the other (Film Development Council of the
Philippines v. SiVl Prime Holdings, Inc., G.R. No. 197937,
April 3, 2013).
Pieading grmmds as affirmative defenses
1. If no motion to dismiss has been filed, any of the
grounds provided for dismissal, under Rule 16, may be pleaded
as an affirmative defense in the answer and, in the discretion
of the court, a preliminary hearing may be had thereon as if
 452 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
a motion to dismiss had been filed (Sec. 6, Rule 16, Rules of
Court).
2. Implied under Sec. 6 of Rule 16 is the rule that
the grounds for a motion to dismiss are not waived, if the
defendant fails to file a motion to dismiss, because he may still
avail of the defenses under ·Rule 16 as affirmative· defenses in
his Answer. J}
·:it>,:
3. From the very tenor of the ruH(it appears that the
. •,'!�).
preliminary hearing authorized on the affirmative defenses
raised in the answer, applies only if no motion to dismiss has
been filed. As a rule, a preliminary hearing is not authorized
when a motion to dismiss has been filed. When filed, the
hearing to be conducted would be the regular hearing of the
motion under Sec. 4 of Rule 15 and Sec. 2, Rule 16, and not a
preliminary hearing under Sec. 6 of Rule 16.
Remedy of the defendant if the motion is denied
1. If the motion to dismiss is denied, the movant shall
file his answer within the balance of the period prescribed by
Rule 11 to which he was entitled, at the time of serving his
motion, but not less than five days in any event. This period
shall be computed from the receipt of the notice of denial (Sec.
4, Rule 16, Rules of Court).
2. As a rule, the filing of an answer and going through
the usual trial process, and later, the filing of a timely appeal
from an adverse judgment are the proper remedies against a
denial of a motion to dismiss. The filing of an appeal from an
order denying a motion to dismiss is not the remedy prescribed
by existing rules. The order of denial, being interlocutory, is
not appealable by express provision of Sec; l(b), Rule 41.
When certiorari is available
The trial court's denial of the motion to dismiss is not a
license for the defendant to file a Rule 65 petition before the
Court of Appeals. An order denying a motion to dismiss cannot
be the subject of a petition for certiorari as the defendant still
has an adequate remedy before the trial court - i.e., to file an
CHAPTER VI 453
PROCEEI)INGS AFI'ER SERVICE OF SUMMONS
AND DISMISSAL OF ACTIONS
answer and to subsequently appeal the case if he loses the
case (Tung Ho Steel Enterprises Corporation v. Ting Guan
Trading Corporation, G.R. No. 182153, April 7, 2014). This is,
however, only a general rule.
In order to justify the grant of the extraordinary remedy
of certiorari, the denial of the motion to dismiss must have
been fainted with grave abuse of discretion amounting to lack
or ex2�ss of jurisdiction (Do'tglas Lu Ym v. Gertru'/ies Nabua,
452 SCRA 298, 305-306; Llm v. Court of Appeals,: '689 SCRA
705, 710, January 30, 2013).i-Bar 2011
Remedies of the plaintiff if the motion to dismiss is granted
1. If the motion is granted, the complaint is dismissed.
The plaintiff, then, has several options.
(a) Depending upon the ground for the dismissal of
the action, the plaintiff may simply refile the complaint.
For instance, if the ground for dismissal was anchored on
improper venue, the plaintiff may file the action in th e
proper venue.
(b) He may appeal from the order of dismissal where
the ground relied upon is one which bars the refiling of th e
complaint like res judicata, prescription, extinguishment
of the obligation or violation of the statute of frauds (Sec. what does it
5, Rule 16, Rules of Coµ,rt). Since the complaint cannot be
refiled, the dismissal is with prejudice. Under -Sec. l(g) mean by with
of Rule 41, it is the order dismissing an action without prejudice
prejudice which cannot be appealed from. Conversely,
where the dismissal is with prejudice, an appeal from
the order of dismissal is not precluded. However, where
the ground for dismissal, for _instance, is the failure of
the complaint to state a cause of action, the plaintiff may
simply file the complaint anew but since the dismissal
is without prejudice to its refiling, the order of dismissal
cannot be appealed from under the terms of Sec. l(g) of
Rule 41 of the Rules of Court.
Where the ground for dismissal is lack of jurisdiction
over the subject matter, the dismissal is without prejudice
454 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
to the refiling of the complaint. Following the tenor of
Sec. l(g) of Rule 41, an order dismissing a complaint for
lack of jurisdiction over the subject matter is a dismissal
without prejudice and, hence, no appeal may be had from
the order of dismissal.
. .
Despite Sec. 1 of Rule 41, appeal may, nevertheles.s,
be taken:J:(rom the order dismi�tsing an action for laqk
of jurisdiction over the subject matter in a situatidh
contemplated under Sec. 8 of Rule 40. This provisi011
specifically allows, by necessary implication, an appeal
from orders dismissing cases on the ground of lack of
jurisdiction over the subject matter. The tenor of Sec. 8
of Rule 40, therefore, operates to furnish an exception
to the general rule enunciated in Sec. 1 of Rule 41. This
situation, it must be noted, applies in a dismissal made
in the Municipal Trial Court and not to a dismissal in the
Regional Trial Court.
(c) The plaintiff may also avail of a petition for
certiorari. This remedy is available if the court gravely
abuses its discretion in a manner amounting to lack
of jurisdiction and is the appropriate remedy in those
instances when the dismissal is without prejudice (Sec.
1, Rule 41, Rules of Court).
When complaint cannot be refiled (Bar 2011)
1. An order granting a motion to dismiss shall bar the
refiling of the same action or claim if the dismissal is based on
any of the following grounds (Sec. 5, Rule 16, Rules of Court).
Bar 2012
(a) The cause of action is barred by a prior judgment
(Sec. l[f!, Rule 16, Rules of Court);
(b) The cause of action is barred by the statute of
limitations (Sec. l[fj, Rule 16, Rules of Court);
(c) The claim or demand has been paid, waived,
abandoned or otherwise extinguished (Sec. l[h}, Rule 16,
Rules of Court); and
CHAPTER VI 455
PROCEEDINGS AFTER SERVICE OF SUMMONS
AND DISMISSAL OF ACTIONS
(d) The claim, on which the action is founded, is
o unenforceable under the provisions of the statute of
frauds (Sec. l{ij, Rule 16, Rules of Court).
2. Where the defendant is barred from refiling the
action, the remedy, under the circumstances, is to file an
appeal because, by the clear language of Sec. 5, Rule 16, the
di13missal is subject to ltlle right of appeal. Si�ce under this
pfovision, the dismissdFbars the refiling of tft� same action
or claim, such dismiss�l is one with prejudic�. This kind of
dfomissal is appealable as a consequence of Sec. l(gt of Rule
41. Under this provision, it is an order dismissing an action
without prejudice which is not appealable.
Effect of dismissal of complaint on the counterclaim (Bar
2008; 2010)
1. The dismissal of a complaint shall not prevent the
prosecution in the same or separate action of a counterclaim
pleaded in the answer of the defendant (Sec. 6, 2nd par.,
Rule 16, Rules of Court). Thus, where the defendant pleads a
counterclaim in his answer, and after the preliminary hearing
on his affirmative defenses, the court dismisses the complaint,
it would be error for the court to dismiss the counterclaim.
2. The second paragraph of Sec. 6 of Rule 16 clearly
provides:
"x x x The dismissal of the complaint under this
section shall be without prejudice to the prosecution in
the same or separate action of a counterclaim pleaded in
the answer."
Hearing -of the motion to dismiss
1. A motion to dismiss is a litigated motion and, hence,
should be heard. In the hearing, the parties shall submit their
arguments on the questions of law and their evidence on the
questions of fact involved if such evidence is available at the
time of the hearing. If the case goes to trial; the evidence
presented during the hearing of the motion to dismiss shall

456 CMLPROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
automatically be part of the evidence of the party presenting
the same (Sec. 2, Rule 16, Rules of Court).
2. In Capiral v. Robles, 660 SCRA 255, the petitioner
contends that there is nothing in Sec. 2, Rule 16 of the Rules
of Court which requires a trial-type hearing for the resolution
of a motion to dismiss. ·Petitioner argues that the RTC, in
requiring a tri�l-type hearing, deferrSd the resolution of thi
subject Motion'.:to Dismiss and, ih scr'doing, violated Se'b. :t
Rule 16 of the R,ules of Court.
The Court did not agree holding that, insofar as hearings
on a motion to dismiss are concerned, Sec. 2, Rule 16 of the
Rules of Court sanctions trial-type proceedings in the sense
that the parties are allowed to present evidence and argue
their respective positions before the court. The Court, citing
previous precedents, likewise, ruled that the issues raised
in a motion to dismiss have to be determined in accordance
with the evidence and facts presented, not on the basis
of unsubstantiated allegations, and that the courts could
not afford to dismiss a litigant's complaint on the basis of
half-baked conclusions with no evidence to show for it. In
emphasizing the need for a formal hearing, the Court held
that the demand for a clear factual finding to justify the grant
or denial of a motion to dismiss cannot be dispensed with. To
this end, the Court adde4 that Sec. 2, Rule 16 of th� Rules of
Court allows, not only a hearing on the motion to dismiss, but
also for the parties to submit their evidence on the questions
of fact involved, which may be litigated extensively at the
hearing or hearings on the motion. During the said hearings,
the parties are allowed to submit their respective evidence,
and even rebut the opposing parties' evidence. The hearings
should provide the parties the forum for full presentation of
their sides. Moreover, from the trial court's perspective, the
extent of such hearings would depend on its satisfaction that
the ground in filing the motion to dismiss has been established
or not established.
CHAPTER VI 457
PROCEEDINGS AFTER SERVICE OF SUMMONS
AND DISMISSAL OF ACTIONS
C. DISMISSAL BY THE PLAINTIFF ..
Dismissal by mere notice of dismissal (Bar 2017; 2018)
l. Before the service of an answer or a motion for
summary judgment, a complaint may be dismissed by the
plaintiff by filing a notice of dismissal (Sec. 1, Rule 17, Rules
of{:ourt).
.. 2. Upon the filiniof the notice of d��mi�sal, the court
shall issue an order confirming the dismissal (Sec. 1, Rule 17,
Rules of Court).
It is not the order confirming the dismissal which operates
to dismiss the complaint. As the name of the orcf'er implies,
•
said order merely confirms a dismissal already effected by
the filing of the notice of dismissal. Since the order issued by
the court merely confirms the dismissal, it follows that the
court does not have to approve the dismissal because it has
no discretion on the matter. Before an answer or a motion for
summary judgment has been served upon the plaintiff, the
dismissal by the plaintiff by the filing of a notice is a matter of
right. It is submitted that the dismissal should occur as of the
date the notice is filed by the plaintiff and, not as of the date
the court issues the order confirming the dismissal.
Note that if the action is a class suit, the rule appears to
be different. Its dismissal must be with th� approval of the
court even if the defendant has not yet served a responsive
pleading or a motion for summary judgment (See last sentence
of Sec. 2, Rule 17, Rules of Court).
Dismissal without prejudice; exceptions
1. A dismissal made by the filing of a notice of dismissal
612
is a dismissal without prejudice, i.e., the complaint can be
refiled. This is the general rule.
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; or
458 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
. (b) the plaintiff has previously dismissed the same
case in a court of competent jurisdiction based on or
including the same claim (Sec. 1, Rule 17, Rules of Court).
2. 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.
-
• (Ching v. Cheng;
This liappells when, for inst�tiee(the notice provides th the
1ai
plaintiff recognizes the fact of prescription or extinguishment
of the obligation of the defendant or for reasons stated iri Sec.
5 of Rule 16 as when the action is barred by res judicata,
statute of limitations or that the claim or demand has been
paid, waived, abandoned or otherwise extinguished.
Two-dismissal rule (Bar 1989; 2017; 2018)
1. The 'two-dismissal' rule applies when the plaintiff
has (a) twice dismissed actions, (b) based on or including the
same claim, (c) 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 the claim 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
6r 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 as an adjudication upon the
merits.
2. For the above rule· to apply, the complaints must
have been dismissed in a court of competent jurisdiction. To
illustrate: PP files, with the Regional Trial Court of Manila,
an action to collect P300,000 from DD. The complaint was
dismissed when PP immediately filed a notice of dismissal.
The same claim was again filed with the Metropolitan Trial
Court of Manila. Before DD served either an answer or a
motion for summary judgment, PP filed a notice of dismissal.
CHAPTER VI 459
PROCE. EDINGS AFI'ER SERVICE OF SUMMONS
AND DISMISSAL OF ACTIONS
É
Does the two-dismissal rule apply? It does not. The first court,
the RTC, was not a court of competent jurisdiction because
the claim was below its jurisdictional amount.
3. "x x x [T]he "two-dismissal rule" under Rule 17,
Section 1 of the Rules of Civil Procedure will not apply if the
prior dismissal was done at the instance. of the defendant
o:ft,
No. 175507, Oc(Qber,S, 2014).
Dismissal by fiUng a motion to dismiss
Once either an answer or a motion for summary judgment
has been served on the plaintiff, the dismissal is no longer
a matter of right and will require the filing of a motion to
dismiss, not a mere notice of dismissal. The motion to dismiss
will now be subject to the approval of the court which will
decide on the motion upon such terms and conditions as are
just (Sec. 2, Rule 17, Rules of Court). The dismissal under Sec.
2 of Rule 17 is no longer a matter of right on the part of the
plaintiff but a matter of judicial discretion.
=
Dismissal without prejudice (Sec. 2, Rule 17)
The dismissal authorized under Sec. 2 of Rule 17 is a
dismissal without prejudice except if the order of dismissal
specifies that it is with prejudice (Sec. 2, Rule 17, Rules of
Court) ..
Dismissal due to the fault of plaintiff (Sec. 3, Rule 17)
1. A complaint may be dismissed even if the plaintiff
has no desire to have the same dismissed. The dismissal in
this case will be through reasons attributed to his fault. Sec. 3
of Rule 17 provides the following grounds for dismissal:
(a) the failure of plaintiff, without justifiable
reasons, to appear on the date of the presentation of his
evidence in chief;
(b) the failure of the plaintiff to prosecute his
action for an unreasonable length of time, also called non
prosequitur; Bar 2012
 460 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
(c) the failure of the plaintiff to comply with the
Rules of Court; or
(d) the failure of the plaintiff to comply with any
order of the court.
① 2. The dismissal due to the fault of the plaintiff may be
②
C)
done by the court on itB ow11 motion (motu proprio)or upon a
riiotibh filed by the defendant (Sec. 3, Rule 17,'.:.Rut/s of Court;
AFP Retirement and Separation Benefits System v. Republic,
694 SCRA 118, 123-124, March 20, 2013).
3. 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 unwillingness
on the part of the plaintiff to prosecute (Roasters Philippines,
Inc. v. Gaviola, G.R. No. 191874, September 2, 2015). Note
that the failure to prosecute under Sec. 3 of Rule 1 7 must
be for an "unreasonable length of time." If the delay or the
continuance sought is not for an unreasonable length of time,
a dismissal on the basis of non prosequitur is not proper
(Laurel v. Vardeleon, G.R. No. 202967, August 5, 2015).
The failure to prosecute is called non prosequitur. "The
fundamental test for non prosequitur is whether, under the
circumstances, the plaintiff is chargeable with want of due
diligence in failing to proceed with reasonable promptitude.
•
There must be unwillingness on the part of the plaintiff to
prosecute" (Roasters Philippines, Inc. v. Gaviola, supra).
4. When there are no justifiable reasons that explain
the plaintiffs 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 (Republic u. Diaz-­
Enriquez, 694 SCRA 102, 112, March 20, 2013).
Dismissal with prejudice {Sec. 3, Rule '17)
The dismissal, under Sec. 3 of Rule 17, shall have the
effect of an adjudication on the merits, unless otherwise
CHAPTER VI 461
PROCEEDINGS AFTER SERVICE OF SUMMONS
AND DISMISSAL OF ACTIONS
declared by the court. Hence, as a rule, it is a dismissal with
prejudice. The dismissal under this provision bars the refiling
of the case (Martinez u. Buen, G.R. No. 187342, April 5, 2017).
Hence, if the case was dismissed for failure of the plaintiff
to prosecute the same, the order of dismissal is _deemed a final
order. Since the order is a final one, th(;) remedy of the plaintiff
is to - O
appeal frofu the order of dismissafimd not to file a petitiop.
for certiorari (Systems and Plan'lntegrator and Development
Corporation v. Municipal Government of Murcia, G.R. No.
217121, March 16, 2016; Martinez v. Buen, G.R. No. 187342,
April 5, 2017).
Effect of dismissal upon a counterclaim alr�ady pleaded
(Bar 2008; 2010)
1. If a counterclaim has already been pleaded by the
defendant prior to the service upon him of the plaintiffs
motion to dismiss, and the court grants the said motion to
dismiss, the dismissal "shall be limited to the complaint" (Sec.
2, Rule 17, Rules of Court). The phraseology of the provision
is clear: the counterclaim is not dismissed, whether it is a
compulsory or a permissive counterclaim because the rul e
makes no distinction. The rule provides:
"xxx The dismissal shall be without prejudice to the
right of the defendant to prosecute his counterclaim x x '//'
(Sec. 2, Rule 17, Rules of Court).
2. The defendant, if he so desires, may prosecute his
counterclaim in a separate action. If he wants the counterclaim
to be prosecuted in the same action, he should manifest his
preference to the court within 15 days from notice of the
motion to dismiss served by the plaintiff (Sec. 2, Rule 17,
-
Rules of Court).
3. A similar rule is adopted in Sec. 6, Rule 16 and Sec. 3
of Rule 17 wherein the dismissal of the complaint does not carry
with it the dismissal of the counterclaim. The same provision
also grants the defendant a choice in the prosecution of his
counterclaim. Note: Please refer to discussions in Chapter IV.
462 CML PROCEDURE, VOLUME I
THEBAR LECTURESSERIES

Dismissal of counterclaim, cross-claim or third-party

complaint
Rule 17 shall apply also to the dismissal of any coun­
terclaim, cross-claim, or third-party complaint. A voluntary Chapter VII
dismissal by the claimant by notice of dismissal, as in Sec. 1
of.Rule 1 7, shall be. made before a responsive ,pleading or a PRE-TRIAL AND MODES OF DISCOVERY
rribtion for summar.y jud�ment is served, dr, i(:fhere is none,
before the introduttion of evidence at th� trial or hearing A. PRE-TRIAL
(Sec. 4, Rule 17, Rules ofCourt).
Concept, nature, and purpose of a pre-trial (Bar 2009)
-oOo- 1. Specifically, under the Rules, a pre-trial is a
procedural device held prior to the trial for the court to
/

consider the following purposes:

(a) The possibility of an amicable settlement or a
submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to
the pleadings;
(d) The possibility of obtaining stipulations or
admissions of facts and of documents to avoid unnecessary
proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of
issues to a commissioner;
(g) The propriety of rendering judgment on the
pleadings, or summary judgment, or of dismissing the
action should a valid grounsJ: therefor be found to exist
(Bar 2009);
-

(h) The advisability or necessity of suspending the

proceedings; and
(i) Such other matters as may aid in the prompt
disposition of the action (Sec. 2, Rule 18, Rules of Court).

463
464 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Under the former rule (Sec. 3, Rule 20, 1964 Rules of
Court), the court was authorized to render a judgment on the
pleadings or a summary judgment if at the trial the court finds
that facts exist to warrant the rendition of said judgments.
The court under the old rule may do so on its own motion.
Under the current rule (Sec. 2[g], Rule 18), the court's
authority is confineg/to a mere determination of the propriety
of rendering i ? judgment on the plgadings or a summary
judgment. It is submitted that the requisite motion should
be filed and h�ard pursuant to Rule 34 (Judgment on the
Pleadings) and Rule 35 (Summary Judgments) before either
judgment is to be rendered.
From the above, it may be inferred that a pre-trial is a
procedural device which ultimately aims to relieve congested
court dockets by encouraging settlement of cases. After the
-
disclosure and marking of evidence during the pre-trial,
parties become aware of the strength and weaknesses of their
cases. This awareness may make parties feel that settlement
is the only alternative. Even in those cases where parties
refuse to reach an amicable settlement, the pre-trial serves
to facilitate the proceedings by limiting and simplifying the
issues in controversy, limiting the number of witnesses and
dispensing with unnecessary proof through admissions and
stipulations of facts and of documents.
2. 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. It is intended to make certain that
all issues necessary to the disposition of a case are properly
raised. Thus, to obviate the element of surprise, parties are
expected to disclose at a pre-trial conference all issues of law
and fact that they intend to raise at the trial, except such
as may involve privileged or impeaching matters (Tinio v.
Manzano, 307 SCRA 460, 467; Suggested reading: Mercader v.
DBP, 332 SCRA 82). A pre-trial is not only intended to clarify
and limit the basic issues between the parties. It also takes
CHAPTER VII 46
PRE-TRIAL AND MODES OF DISCOVERY
the trial of cases out of the realm of surprise and maneuvering
(Zaldivar v. People, G.R. No. 197056, March 2, 2016).
3. The pre-trial is mandatory in civil cases (Sec. 2, Rul
0
18, Rules of Court; Interlining Corporation v. Philippine Trust
•
Company, 378 SCRA 521, 525; Tiu v._ Middleton, 310 SCRA
580, 586). It is mandatory in order to realize the objective of
silnplifying, abbreviating, art1 expediting trial,,(D�nglasan-D
l6s Santos v. Abejon, G.'R. No: 215820, March\'20, 2017). Bax-
1989
A pre-trial is also held in criminal cases. In all criminal
cases cognizable by the Sandiganbayan, Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court, and Municipal Circuit Trial Court, pre•
trial is also mandatory (See Sec. 1, Rule J 18, Rules of Court).
Preliminary conference
l. A preliminary conference, the equivalent of a pr....
trial in proceedings where no trial is conducted, is, likewis�,
o
mandatory in both civil and criminal cases under the Rules
Summary Procedure (Secs. 7 and 14, 1991 Rules on Summary
Procedure).
2. A preliminary conference may be held in the Court
of Appeals, but such conference is not mandatory (Sec. 1, Rul
48, Rules of Court). It may even apply to the Supreme Court
whenever the Court decides to do so. Rule 48 is one of th e
provisions applicable to the Supreme Court in original case
(See Sec. 2, Rule 56, Rules of Court).
Effect of failure to conduct a pre-trial
The failure of a judge to conduct a pre-trial conference in
a civil case is contrary to elementary rules of procedure. Rul e
18 of the Rules of Court imposes a duty upon the plaintiff to
promptly move ex parte that the case be set for pre-trial. "It
is elementary and plain that the holding of such a pre-trial
conference is mandatory and failure to do so is inexcusable.
When the law or procedure is so elementary, such as th e
provisions of the Rules of Court, not to know it or to act a
466, CIVIL PROCEDURE, VOLUME I CHAPTER VII 467
THE BAR LECTURES SERIES PRE-TRIAL AND MODES OF DISCOVERY

if one does not know it constitutes gross ignorance of the pre-trial

law. Such ignorance of a basic rule in court procedure, as
(A.M. No. 03-1-09-SC, July 13, 2004; Metropolitan
failing to conduct pre-trial, sadly amounts to gross ignorance
Bank and Trust Company v. Fadcor, Inc., G.R. No. 197970,
"

and warrants a corresponding · penalty" (National Power

Corporation v. Adiong, 654 SCRA 391, 403-404).
At the start of the prelimin��y c6:riference, the judge is
Referral to ttie P.�ilippine Mediatigp C�11ter
January 25, 2016).
Before the amendment was introduced by AM. No. 03-
1-09 giving the branch clerk of cour-t authority to issue a notice
of.pre-trial, under tlie previous rule, if the plaintiff failed to
fil�:the motion to setJhe case for pre-trialfot an::'G.nreasonable
len.gth of time, his failure to do so could be construed to be a

mandated to refer the parties and/or their counsels to. the failure to prosecute his case and was a grmmd £or dismissal.
mediation unit of the Philippine Mediation Center (PMC) under Sec. 3, Rule 1 7 of the Rules of Court (See Allied Banking
for purposes of mediation. If mediation fails, the judge will
schedule the continuance of the preliminary conference. This
= Corporation v. Madriaga, G.R. No. 196670, October 12, 2016).
-

rule applies to Metro Manila, Cebu, Davao City, and other

places where Philippine Mediation Center Units may be
further organized and designated (Administrative Circular 1. The last permissible pleading that a party can file is
The meaning of 'last pleading'

the reply to the answer to the last pleading as.,serting a claim.

The claim could be the original complaint, counterclaim,
No. 20-2002, March 24, 2002; A.M. No. 03-1-09-SC, July 13,

cross-claim or third-party complaint. If an answer is filed and

2004).

served in response to these claims, the pleading in response to

these answers is the reply (Sarmiento v. Juan, 120 SCRA 403,
In a civil case, it is not the court which initiates the
How pre-trial is called; filing of motion by plaintiff (Bar 1999)

408) which is to be filed within 10 days from the service of th

setting of the case for a pre-trial. It is set at the instance of the
pleading responded to (Sec. 6, Rule 11, Rules of Court).
plaintiff. Under the Rules, it shall be the duty of the plaintiff,
.

not of the defendant, to promptly file a motion to set the case
for pre-trial. This motion is an ex parte motion. This means
that the motion is not a litigated motion, i.e., it need not be the
subject of a hearing (Sec. 1, Rule 18, Rules of Court).
When motion is to be filed by plaintiff; role of the branch
2. Where the last pleading has not yet been served and
filed, the case is not yet ready for pre-trial (Pioneer Insuranc
& Surety . Corporation v. Hontanosds, 78 SCRA 447, 461).
However, the 'last pleading' need not be literally construed as
one having been served and filed. For purposes of the pre-trial,
the expiration of the period for filing the last pleading, without
it having been served and filed, is sufficient (Sarmiento v.

1. The ex parte motion to set the case for pre;trial is

clerk of court
Juan, supra at 409).
to be made by the plaintiff after the last pleading has been
served and filed (Sec. 1, Rule 18, Rules of Coitrt). Specifically,
the motion is to be filed within five days after the last pleading 1. The notice of pre-trial shall be served on the counsel
Notice of prentrial (Bar 1977)

joining the issues has been served and filed (Administrative of the party, if the latter is represented by counsel. Otherwise,
the notice shall be served on the party himself. The counsel is
=
Circular No. 3-99, January 15, 1999).
2. If the plaintiff fails to file said motion within the
given period, the branch derk of court shall issue a notice of
-
charged with the duty of notifying his client of the date, time
and place of the pre-trial (Sec. 3, Rule 18, Rules of Court).
 468 CML PROCED URE,VOLUMEI
THE BAR LECTURES SERIES
2. The old rule required that the notice be served not
only upon the counsel but also upon the party (Sec. 1, Rule 20,
1964 Rules of Court; Samson v. Court of Appeals, 105 SCRA
781, 787), and where-no separate notice to the party is sent, it
was then the rule that all the proceedings at the pre-trial and
· those subsequent thereto are null and void (Barde v. Posiquit,
164 SCRji3,Q4, 310). j may be 'non-suited. \These terms no long�r appear in the
Th� pr��ent rule simplifi�� the procedure since tte nJ�ice
of pre-trial is now served on the counsel, and service is made
on the party only if he has no counsel (Agulto v. Tecson, 476
SCRA 395, 402).
3. Notice 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 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 (Agulto v. Tecson, supra at 406).
Appearance of parties and counsels in the pre-trial (Bar
1992)
1. It shall be the duty of both the parties and their
counsels to appear at the pre-trial (Sec. 4, Rule 18, Rules of
Court).
2. Mediation is a part of pre-trial and failure of the
plaintiff to appear therein merits sanction on the part of the
absent party (Senarlo v. Judge Paderanga, 617 SCRA 247,
253-254; Real Bank, J,fr. v. Samsung Mabuhay Corporation,
633 SCRA 124, 134; Metropolitan Bank and Trust Company v.
Faclcor, Inc., supra).
Effect of failure to appear by ihe plaintiff (Bar 1980; ·1981;
1989); remedy
1. .· The failure of the plaintiff to appear shall be cause
for the dismissal of the action. This dismissal shall be with
C HAPTER VII 469
PRE-TRIAL AND MODES OF DI S COVERY
prejudice except when the court orders otherwise (Sec. 5, Rule
18, Rules of Court; Mondonedo v. Court of Appeals, 252 SCRA
28, 30).
The former rule (Sec. 2, Rule 20, 1964 Rules of Court)
provides that the plaintiff who fails to appear in the pre-trial
present Rules. it .,, · "'
',
2. Since the dismissal of the • action shall be with
prejudice, unles� otherwise provided, · the same shall have
the effect of an adjudication on the merits, thus, final. The
remedy of the plaintiff, therefore, is to appeal from the order
of dismissal. An order dismissing an action with prejudice i S
appealable.
Under the Rules, it is only when the order of dismissal i S
without prejudice that appeal cannot be availed of (Sec. l[gJ.
Rule 41, Rules of Court). Since appeal is available, certiorari
is not the remedy because the application of a petition for
certiorari, under Rule 65 of the Rules of Court,'"is conditioned
upon the absence of an appeal or any plain, speedy and
adequate remedy in the ordinary course of law (Sec. 1, Rul
65, Rules of Court).
Jurisprudence affirms that an order of dismissal based
on failure to appear at the pre-trial is with prejudice unlesS
the order itself states otherwise. In fact, the trial court is not
required to explicitly state that the dismissal is with prejudice.
A dismissal with prejudice is to be considered an adjudication
on the merits of the case, where the proper remedy is appeal
under Rule 41, not a petition for certiorari (Chingkoe v.
Republic, G.R/No. 183608, July 31, 2013).
Effect of failure to appear by the defendant (Bar 2011);
remedy
1. The failure of the defendant to appear in the pre-tria I
shall be cause to allow the plaintiff to present his evidence ex
parte and for the court to render judgment on the basis of th e
evidence presented by the plaintiff (Sec. 5, Rule 18, Rules of
 470 CMLPROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
Court; Metropolitan Bank and Trust Company v. Fadcor, Inc.,
G.R. No. 197970, January 25, 2016).
The former rule (Sec. 2, Rule 20, 1964 Rules of Court)
provided that the defendant who fails to appear in the pre­
trial may be considered "as in default." These terms are no .
longer used under the current_:Rules. As it is now, there is no
default'for failure to appea; r i:n5:.a pre-trial. · '·'"
• ·•
!•.. ·
The term "default" is identified with the failure to file
an answer and not failure to appear in court; It bears to
emphasize that as the Rules of Civil Procedure presently
stand, if the defendant fails to appear for pre-trial, a default
order is no longer issued. Initially, the phrase "as in default"
was included in the old rules. With the amended provision,
the phrase "as in default" was deleted, the purpose of which
is "one of semantical propriety or terminological accuracy as
there were criticisms on the use of the word default in the
former provision since that term is identified with the failure
to file a required answer, not appearance in court" (See
Philippine Steel Coating Corporation v. Quinones, G.R. No.
194533, April 17, 2017).
2. 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. l(b) 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.
Mow nmMippearance is excused
1. The non-appearance of a party may be excused
only if a valid cause is shown for such non-appearance or if
a representative shall appear in his behalf fully authorized
in writing to enter into any of the following matters: (a)
an amicable settlement, (b) alternative modes of dispute
resolution, and (c) stipulations or admissions of facts and
documents (Sec. 4, Rule 18, Rules of Court).
CHAPTER VII 471
P RE-T RIAL AND MODES OF DI S COVERY
The phraseology of the provision suggests that it is not
sufficient for the written authority to give the representative
the power to enter into only one of the matters mentioned in
Sec. 4 of Rule 18, as when the only authority granted is to enter
into an amicable settlement. The authority must also confer
· upon the representative the power to submit to alternative
modes of dispute.: resolution, and enter into stipulations or
admissions iof facts. An incomplete·;authority does not satisfy:./
the requirements of the Rules and should be deemed the
equivalent of having no authority at all.
2. Although Sec. 4 uses the disjunctive "or," the logical
meaning of the rule dictates that the written authority given
to the representative be coupled with an explanation showing
a valid cause for a party's non-appearance. Common reason
suggests that having a written authority but without a
justification for a party's absence or vice ven,-a would not be in
accord with the spirit of the Rules.
3. The written authority must be in the form of a special
power of attorney. Entering into an amicable settlement for a
client, who is the principal in the attorney-client relationship,
involves entering into a compromise. Substantive law (Art.
1878[3] of the Civil Code of the Philippines) is explicit: "Special
power(s) of attorney are necessary x x x To compromise, to
submit questions to arbitration x x x" (Italics ours).
Procedural rules (Sec. 23, Rule 138), likew:i'.se, prohibit
an attorney to compromise his client's litigation or receive
anything in discharge of a client's claim, but the full amount
in cash, without a "special authority."
4. In a case, the petitioner and its counsel of record
were not present in the scheduled pre-trial conference. I(did
not also file a pre-trial brief. The Court stressed that Rule 18 of
the Rules of Court leaves no room for equivocation; appearance
of parties and their counsel at the pre-trial conference, along
with the filing of a corresponding pre-trial brief, is mandatory.
It is a duty. Non-appearance cannot be excused as Sec. 4, in
relation to Sec. 6 of Rule 18, allows only two exceptions:
(1) a valid excuse; and
472 CMLPROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
(2) appearance of a representative on behalf of a
party, who is fully authorized in writing, to enter into
an amicable settlement, submit to alternative modes
of dispute resolution, and enter into stipulations or
admissions of facts and documents (Durban Apartments
Corporation v. Pioneer Insurance and Surety Corporation,
/639 SCRA 441, 450; [J_ltra Mar Aqua B,esoittces, Inc. v.
"Fermida Constructiot i? Services, G.R. N-0. 191353, April
17, 2017).
Pre-trial brief; filing and contents
1. The parties shall file with the court their respective
pre-trial briefs which should be received at least three days
÷
before the date of the pre-trial. This pre-trial brief shall be
served on the adverse party in such manner that will ensure
his receipt also at least three days before the date of the pre­
trial (Sec. 6, Rule 18, Rules of Court).
2. The pre-trial brief shall contain the following
matters:
(a) A statement of their willingness to enter into
an amicable settlement or alternative modes of dispute
resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed
stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented,
stating the purposes thereof;
(e) A manifestation of their having availed of or
their intention to avail of the discovery procedures or
referral to commissioners; and
(f) The number and names of the witnesses, and
the substance of their respective testimonies (Sec. 6, Rule
18, Rules of Court).
3. The pre-trial brief shall include a manifestation of a
party's having availed of or the intention to avail of discovery
CHAPTER VII 473
PRE-TRIAL AND MODES OF DISCOVERY
procedures (Commissioner of Internal Revenue v. San Miguel
Corporation, G.R. No. 205045, January 25, 2017).
Identification and marking of evidence
It is vital to have the documents and exhibits identified
and marked during the pre-trial. The current rule establislles
the poli<;;y th�;t no evidence sh?ll bt'allowed to be present}d
and offered during the trial iri support of a party's e\riderice­
in-chief other than those that had been earlier identified and
pre-marked during the pre-trial, except if allowed by the court
for· good cause shown (A.M No. 03-1-09-SC, July 13, 2004;
Cruz v. People, G.R. No. 210266, June 7, 2017). Note that the
same rule confers upon the trial court the discretion to allow
the introduction of additional evidence during the trial other
than those that had been previously marked and identified
during the pre-trial provided there are valid grounds (Se
Lara's Gift and Decors, Inc. v. PNB Insurers Co., Inc., G.R.
Nos. 230429-30, January 24, 2018).
legal effect o-i' representations and statements in the pre­
trial brief
The parties are bound by the representations and
statements in their respective pre-trial briefs (A.M. No. 03-1-
09-SC, July 13, 2004). Such representations and statements.
are in the nature of judicial admissions in relation to Sec. 4 of
Rule 129 of the Rules of Court.
Effect of failure to file a pre-trial brief
1. The failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial (Sec. 6, Rule
18, Rules of Court). Hence, if it is the plaintiff who fails to file
a pre-trial brief, such failure shall be cause for dismissal of
the action. If it is the defendant who fails to do so, such failure
shall be cause to allow the plaintiff to present his evidence ex
parte (For further readings, see Metropolitan Bank and Trust
Company u. Fadcor, Inc., G.R. No. 197970, January 25, 2016).
474 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
2. The dismissal of a complaint for failure to file a pre­
trial brief is discretionary on the part of the trial court (Ramos
v. Spouses Lavendia, 568 SCRA 239, 247).
No termination of pre-trial for failure to settle
1. The j_'Y,-.dge should not allow}the termination of pr�t­
trial simply be.cl:i.use of the manifestaf::ion of the parties th?it
they cannot s�ttle the case. Instead; he should expose tlie
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 (A.M. No.
03-1-09-SC, July 13, 2004).
2. If all efforts to settle fail, the trial judge shall
endeavor to achieve other purposes of a pre-trial like, among
others, obtaining admissions or stipulations of fact. To obtain
admissions, the judge shall ask the parties to submit whatever
depositions that have been taken under Rule 23, the answers
to written interrogatories under Rule 25 and the answers to
request for admissions by the adverse party under Rule 26.
He may, also, require the production of documents or things
requested by a party under Rule 27 and the results of the
physical and mental examination of persons under Rule 28
(A.111. No. 03-1-09-SC, July 13, 2004).
One Day Examination of Witness Rule (Bar 2009; 2016)
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 (A.M. No. 03-1-09-SC,
July 13, 2004).
flllost Important Witness Rule (Bar 2016)
Where no settlement has been effected, the court shall
follow the Most Important Witness Rule, where the court shall
. CHAPTER VII . 475
PRE-TRIAL AND MODES OF DISCOVERY
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 (A.M. No. 03-1-
09�SC, July 13, 2004).
Ou.estions are to be asked by the judge
.J,
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 (A.M. No. 03-1-09-SC,
July 13, 2004).
Pre-trial order
l. The pre-trial order of the court is issued upon the
termination of the pre-trial. Under A.M. No. 03-1-09-SC, dated
July 13, 2004, the pre-trial order shall be issued within 10
days after the termination of the pre-trial. This order recites,
in detail, the following:
(a) The matters taken up in the conference;
(b) The action taken thereon;
(c) The amendments allowed to the pleadings; and
(d) The agreements or admissions made by the
parties as to any of the matters considered (Sec. 7, Rule
18, Rules of Court). These admissions embodied in the pre­
trial ·order are binding upon the parties and conclusive
upon them (Heirs of Conahap v. Regafia, 458 SCRA 741,
748).
2. Should the action proceed to trial, the pre-trial order
(a) defines and limits the issues to be tried, and (b) controls the
subsequent course of the action, except if it is modified before
trial to prevent manifest injustice (Sec. 7, Rule 18, Rules of
Court).
 476 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Implied issues are deemed included in the pre-trial order
1. It is true that the issues to be tried between the
parties in a case shall be limited to those defined in the pre­
trial order. This rule should not, however, be construed to
.. refer only to those issues mention�d in the pre-trial order. It
also include_s issues that are impli�qfrom those written irr,!he
order. . :'. Jt'
1
\?_=: .fr:·:
2. It was, thus, held that a pre.�trial order is not intended
to be a detailed catalogue of each and every issue that is to
be taken during the trial, for it is unavoidable that there are
issues that are impliedly included among those listed or that
may be inferable from those listed by necessary imp lication
which are as much integral parts of the pre-trial order as
those expressly listed (Philippine Export and Foreign Loan
Guarantee Corporation v. Amalgamated Management and
Development Corporation, 658 SCRA 273-282; see Abagatnan
u. Clari to, G.R. No. 211966, August 7, 2017).
Distinctions between pre-trial in civil cases and pre-trial in
criminal cases {Bar 1997)
1. The pre-trial in a civil case is set when the plaintiff
moves ex parte to set the case for pre-trial (Sec. 1, Rule 18,
Rules of Court). The pre-trial in a criminal case is or�ered by
the court and no motion to set the case.for pre-trial is required
from either the prosecution or the defense (Sec. 1, Rule 118,
Rules of Court).
2. The motion to set the case for pre-trial in a civil case
is made after the last pleading has been served and filed (Sec.
1, Rule 18, Rules of Court). In a criminal case, the pre-trial is·
ordered by the court after arraignment and within 30 days
from the date the court acquires jurisdiction over the person
of the accused (Sec. 1, Rule 118, Rules of Court).
3. The pre-trial in a civil case considers the possibility
of an amicable settlement as an important objective (Sec. 2/a],
Rule 18, Rules of Court). The pre-trial in a criminal case does
not include considering the possibility of amicable settlement
CHAPTER VII 477
PRE-TRIAL AND MODES OF DISCOVERY
of criminal liability as one of its purposes (See Sec. 1, Rule
118, Rules of Court).
4. In a civil case, the agreements and admissions
made in the pre-trial are not required to be signed by both
the parties and their counsels. Under the Rules of Court, they
}�.re, instead, to be cop/ained in the record,9f pre-trial and
:}the pre-trial order (Secf 7, Rule 18, Rules of,Qourt). However,
i.M. No. 03-1-09-SC,\lated July 13, 2004, ri6w requires the
proceedings during the preliminary conferen¢e to be recorded
in the "Minutes of Preliminary Conference" and signed by
both parties and/or counsel. The rule allows either the party
or his counsel to sign the minutes.
In a criminal case, there is a stricter procedure required.
All agreements or admissions made or entered during the
pre-trial conference shall be reduced in writing and signed by
both the accused and counsel; otherwise, they cannot be used
against the accused (Sec. 2, Rule 118, Rules of Court).
5. The sanctions for non-appearance in a pre-trial in
a civil case are imposed upon the plaintiff and the defendant
(Sec. 4, Rule 18, Rules of Court). The sanctions in a criminal
case are imposed upon the counsel for the accused or the
prosecutor (Sec. 3, Rule 118, Rules of Court).
j
.6. A pre-trial brief is specifically required to be
submitted in a civil case (Sec. 6, Rule 18, R�les of Court). A
0
pre-trial brief is not specifically required in a criminal case.
Preliminary conference under the 1991 Revised Rules on
Summary Procedure
1. Under the 1991RevisedRule onSummaryPro·cedure,
a preliminary conference shall be held not later than 30 days
after the last answer is filed. Here, the rules on pre-trial in
ordinary cases shall apply except when inconsistent with the
rules on summary procedure (Sec. 7, Part II, 1991 Revised
Rules on Summary Procedure). The tenor of the rule indicates
the mandatory nature of preliminary conference in cases
subject to summary procedure.
478 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
2. The failure of the plaintiff to appear in the prelimi­
nary conference shall be cause for dismissal of his complaint,
and the defendant who appears in the absence of the plaintiff
shall be entitled to judgment on his counterclaim. All cross­
claims shall be di_smissed (Sec. 7, Part I!, 1991 Revised Rules
on Summary Procedure).
� -� �
If �,fsole defendant fails tt>'::appear, the plaintiffls'hall be
entitled: to judgment. This rule shall be inapplicable if one
of severlil defendants, who are sued under a common cause
of action and pleaded a common defense, shall appear at the
preliminary conference (Sec. 7, Part IL 1991 Revised Rules on
Summary Procedure).
3. Within five days from the termination of the
preliminary conference, the court shall issue an order stating
the matters taken up in the conference (Sec. 8, Part IL 1991
Revised Rules on Summary Procedure).
PreliminanJ conference in the Court of Appeals and Supreme
Court
I
1. A preliminary conference may be conducted in the
Court of Appeals, but the same is not mandatory. Sec. 1 of
Rule 48 provides that at anytime during the pendency of the
case, t:q.e court may ,;:all the parties and their counsels to a
◦
preliminary conference for the following purposes:
"SECTION 1. X X X
(a) To consider the possibility of an amicable
settlement, except when the case is not allowed by law to
be compromjsed;
(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
CHAPTER VII 479
PRE-TRIAL AND MODES OF DISCOVERY
(d) To take up such other matters which may aid
the court in the prompt disposition of the case."
2. Rule 48 (Preliminary Conference) is also made
applicable to the Supreme Court by the Rules in original
cases for certiorari, prohibition, mandamus, quo warranto
habeas corpufr(Sec. 2, Rule 56, Rules,of Court).
and =
-
B. MODES OF DISCOVERY
Meaning and purpose of "discovery"
1. In general, a 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.
2. 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
(35A C.J.S. §527, 1960). In the 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
weaknes·s of his position.
The Court explained that "The various modes or
instruments of discovery are meant to serve (1) as a device,
along with the pre-trial hearing x x x to narrow and clarify
the basic issues between the parties, and (2) as a device for
ascertaining the facts relative to those issues. The evident
purpose is x x x to enable the parties, consistent with
recognized privileges, to obtain the fullest possible knowledge
480 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
of the issues and facts before civil trials and thus prevent that
said trials are carried on in the dark" (Fortune Corporation v.
CA, G.R. No. 108119, January 19, 1994).
Duty of the C(?Urt in relation to the n:iodes of discovery
_JI'he modes of discovepy are considered by tJ;i� Supreme
Couil as vital components;Iof case managemendih pre-trial
courts. Hence, aside from preparing the summons within one
day from the receipt of the c·omplaint, the court is''.required to
issue an order requiring the parties to avail of interrogatories
to parties under Rule 25 and request for admission by adverse
party under Rule 26, or, at their discretion, make use of
depositions under Rule 23, or other measures under Rules 27
and 28 within five days from the filing of the answer. A copy
of this order shall be served upon the defendant together with
the summons. A copy of the order shall also be served upon the
plaintiff (A.M. No. 03-1-09-SC, July 13, 2004). Under the cited
Administrative Matter, the use of interrogatories to parties
(Rule 25) and request for admission (Rule 26) is mandatory
while the availment of other modes of discovery are merely
discretionary on the parties.
Modes of discovery under the Rules of Court (Bar 2000)
The following are the modes of discovery under. the Rules
of Court:
(a) Depositions pending action(Rule 23);
=
(b) Depositions before action or pending appeal
(Rule 24);
(c) Interrogatories to parties (Rule 25); Bar 201ff
(cl) Admission by adverse party (Rule 26); Bar
2018
(e) Production or inspection of documents or things
(Rule 27); and
(f) Physical and mental examination of persons
(Rule 28). Bar 2015
CHAPTER VII 481
PRE-TRIAL AND MODES OF DISCOVERY
I. Depositions (Rules 23-24; Bar 2010)
1. A deposition is the taking, out of court, of the
testimony of any person, whether he be a party or not, but at
the instance of a party to the action.
. .· .
This provi�ion does not make any,clistincti6n or restricti9n
as to who can{�vail of a deposition a:�'long as he/it is a par,ty
to the case. Th:us, it is immaterial thaithe plaintiff availing'.of
the deposition;·as a mode of discovery, is a foreign corporation
and all its witnesses are residing abroad (Santamaria v.
Cleary, G.R. No. 197122, June 15, 2016).
2. A deposition may be sought for use in a pending
action (Rule 23), a future action (Rule 24), or for use in a
pending appeal (Rule 24).
If the deposition is for use during a pending action, it is
commonly called a deposition de 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 and is governed by Rule 24.
Depositions pending action; when leave of court is required
1. When there is a pending case, the testimony of a,ny
person, whether a party or not, may be taken even before the
trial proper. Such testimony is to be taken at the instance of
any party to the action. The taking of the testimony is called
a "deposition." The person whose testimony is to be taken is
called a "deponent."
For this purpose, leave of court is required before the
service of an answer but after jurisdiction has been acquired
over any defendant or over the property subject of the action.
Leave of court is no longer required after an answer has been
served. (See Sec. 1, Rule 23, Rules of Court; San.tamaria v.
Cleary, G.R. No. 197122, June 15, 2016; Georg v. Holy Trinity
College, Inc., G.R. No. 190408, July 20, 2016). However, the
0
deposition of a person confined in prison may be taken only

482 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
by leave of court and upon such terms as the court prescribes
(See Sec. 1, Rule 23, Rules of Court).
2. In one case, petitioners contended they had not yet
served an answer to respondents because the answers that
they have filed with the trial court were made ex abudanti
tautela. In other wor1
1 _ 1 s, they did not consi11er the answers
;''they filed m court ahd served on respondents as answers
l ,,
contemplated by the R:ules of Court on the ground that same
'were filed ex abudanti cautela. They contended that since they
had not yet filed an answer, any deposition must be made with
leave of court.
The Court, in finding the contention untenable, ruled:
"We find petitioners' contention to be untenable.
Ex abudanti cautela means "out of abundant caution" or
"to be on the safe side." An answer ex abudanti cautela
does not make their answer less of an answer. A cursory
look at the answers filed by petitioners shows that they
contain their respective defenses. An answer is a pleading
in which a defending party sets forth his defenses and the
failure to file one within the time allowed therefore may
cause a defending party to be declared in default. Thus,
petitioners, knowing fully well the effect of the non-filing
of an answer, filed their answers despite the pendency of
their appeal with the Court of _Appeals on the denial of
their motion to dismiss" (Rosete u. Lim, 490 SCRA 125,
138-139).
Scope of the examination; manner of examination
1. The deponent may be examined regarding any
matter which is relevant to-the subject of-the pending action
as long as the subject of the examination does not involve
matters that are privileged. Since the allowable examination
may be on any matter relevant to the pending action, the
deponent may be asked questions relating to the claim or
defense of any party. He may be asked about the existence,
description, nature, custody, condition, and location of any
books or documents or other tangible things. He may also be
asked to answer questions as to the identity and location of
CHAPTER VII 483
PRE-TRIAL.AND MODES OF DISCOVERY
persons having knowledge of facts relevant to the case (See
Sec. 2, Rule 23, Rules of Court).
2. The rule provides for two methods of taking a
deposition. It may be either by (a) an oral examination, or by
(b) a written interr.ogatory (Sec. 1, Rule 23, Rules of Court).
During tli,e deposition, the deponent may be examined
:.-..
1. '"l•
and cross,,fexamined following the rules on examina�ion of
_;__,...
witnesses :permitted under Secs. 3 to 18 of Rule 13.f' This
means that the examination may be a trial-type examiI).ation
(Sec. 3, Rule 23, Rules of Court).
Attendance of the deponents/witnesses; sanctions
J. The attendance of witnesses to be examined may be
compelled by the use of a subpoena (Sec. 1, Rule 23, Rules
of Court). In case of the failure of a witness to attend, the
court or judge issuing the subpoena, upon proof and service
thereof and of 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 (Sec. 8, Rule 21, Rules
of Court). Also, failure to obey a subpoena, without justifiable
cause, shall be deemed a contempt of the court from which the
subpoena is issued (Sec. 9, Rule 21, Rules of Court).
2. If a party or other deponent, during the deposition,
refuses to answer any question upon oral examination, the
deposition may continue on other matters or may be adjourned
at the election of the proponent of the question. However,
t the
proponent may apply, before the court where the deposition is
taken, for an order to compel an answer. If the application is
granted, the court shall require the refusing party or deponent
to answer the question. If the court finds that the refusal is
not supported by a substantial justification, it may order the
person refusing to answer or the counsel advising the refusal,
or both, to pay to the proponent the amount of the reasonable
expenses incurred in obtaining the order, including attorney's
fees (Sec. 1, Rule 29, Rules of Court).
The party or deponent who refuses to answer a question,
after being ordered to do so by the court, may be held in

484 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
contempt of court. The same rule applies for a refusal to be
sworn as a witness. Under the Rules, a refusal to be sworn or
a refusal to answer a question after being so ordered, may be
considered contempt of court (Sec. 2, Rule 29, Rules of Court).
3. A party who unjustifiably refuses to answer questions
during the deposition may suffer from other consequences of
such refusal. On�;�onsequence of the r�fusal by a party (not
by a mere witness) to obey an order requiring him to answer
designated questions is that the court may issue an order that
the matters regarding which the questions were asked shall
be taken to have been established for the purpose of the action
in accordance with the claim of the party obtaining the order
from the court (Sec. 3 [a], Rule 29, Rules of Court).
The court may also issue an order refusing the disobedient
party to support or oppose designated claims or defenses. The
order may prohibit the disobedient party from introducing
in evidence designated documents or things or items of
testimony, or from introducing evidence of physical or mental
condition (Sec. 3 [b], Rule 29, Rules of Court).
It is also possible that the court may issue an order
striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action
or proceedings or any party thereof, or rendering a judgment
by· default against a disobedient party (Sec. 3 [c], Rule 29,
Rules of Court).
In lieu of the above orders or in addition thereto, the court
may issue an order directing the arrest of any party or his
agent for disobeying court orders except an order to submit to
a physical 0r mental examination (Sec. 3 [c], Rule 29, Rules of
Court).
Note: The above consequences do not only apply to the
refusal to answer designated questions. They also apply to a
E-
refusal to obey an order under Rule 27 to produce any document
or other thing for inspection, copying or photographing or to
permit it to be done; to permit entry upon land or property;
or to obey an order under .Rule 28 requiring him to submit to
CHAPTER VII 485
PRE-TRIAL AND MODES OF DISCOVERY
a mental or physical examination. Such consequences are to
-
be suffered by any party or an officer or managing agent of a
party (Rule 29, Rules of Court).
Oral deposition
l. A pa�ty desiring to take the deposition of any person
upon}>ral examination shall.f.give to every party to the action a
reasciriable notice in writin{Such notice is requirecfto contain
the following:
(a) the time and place for taking the deposition;
and
(b) the name and address of each person to be
examined, if known; if not known, there must be a general
description sufficient to identify him or the particular
class or group to which he belongs (Sec. 15, Rule 23, Rules
of Court).
2. After service of the notice, the court, upon motion
by any party or by the person to be examined and for good
cause shown, issue an order for the protection of the parties
and the deponent. For instance, the court may, among others,
order that the deposition be taken only at a designated plac
:
other than the one stated in the notice; that instead of bein N
orally conducted, the deposition may be taken only on written
interrogatories. The court may also direct that certain matters
may not be inquired into. It may even order that only th
parties and their counsels and the officers presiding in th
deposition could be present in the proceedings or issue any
other order to protect the parties and their witnesses from
annoyance, embarrassment, or oppression (Sec. 16, Rule 23,
Rules of Court).
Salient guidelines in the taldng of an oral deposition
Certain guidelines for oral depositions provided for under
Sec. 17 of Rule 23 must be observed. These are:
(a) The officer before whom the deposition is taken
shall put the witness on oath; he shall personally an
 486 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
in his presence record the testimony of the witness or
the recording may be done by someone acting under his
direction.
(b) The testimony of the witness or deponent must
be recorded and be taken stenographically, unless the
parties agJ,'.ee otherwise; ,3 i,_
tJi
(c) �1 objections mad/.;:at the time of
examinat�pn shall be noted and eyidence objected to shaJl
be taken but subject to the objections (the applicable
provision does not provide that the officer has to rule on
the objection);
3. 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 (Sec. 17,
Rule 23, Rules of Court).
4. When the testimony is fully transcribed, the
deposition shall be submitted to the witness for examination
and read to or by him, unless such examination is waived by the
witness and the parties. The witness may desire some changes
in form and substance, in which case such changes shall be
entered upon the deposition by the officer with a statement
of the reasons of the witness for making such- changes. The
deposition shall be signed by the witness, unless the signing is
waived by the parties by stipulation or, the deposition cannot
be signed because the witness is ill, cannot be found or he
refuses to sign (Sec. 19, Rule 23, Rules of Court).
5. If the deposition is not signed _by the witnes_s, the
officer shall sign it and state on the record the attendant
facts, together with the reason given for the non-signing of
the deposition. This having been done, the deposition may
be used as fully as though it was signed, unless on a motion
to suppress under Sec. 29(f) of Rule 23 and the court holds
that the reasons given for the refusal to sign require rejecting
the deposition in whole or in part (Sec. 19, Rule 23, Rules of
Court).
CHAPTER VII 487
PRE-TRIAL AND MODES OF DISCOVERY
6. The officer is required to certify on the deposition that
the witness was duly sworn to by him and that the deposition
is a true record of the testimony given by the witness. He shall
then securely seal the deposition in an envelope.indorsed with
the title of the action "Deposition of (name of witness)." He
shall, likewise, promptly file it with the court in which the
a�tion is pending or sEJnd it by registered m�_il to the clerk
th�reof for filing (Sec. 20., Rule 23, Rules of CoU_:ft). All parties
shall promptly be notified of its filing by the officer taking the
deposition (Sec. 21, Rule'23, Rules of Court) and.tipon payment
of reasonable charges, the officer shall furnish a copy of the
deposition to any party or to the deponent (Sec. 22, Rule 23,
Rules of Court).
Deposition upon written interrogatories
1. A deposition need not be conducted through an
oral examination. It may be conducted through written
interrogatories (Sec. 1, Rule 23, Rules of Court).
2. A party desiring to take the deposition of any person
upon written interrogatories shall serve the interrogatories
upon every other party with a notice stating the name and
address of the person who is to answer them, the name and
descriptive title and address of the officer before whom the
deposition is to be taken (Sec. 25, Rule 23, Rules of Court).
3. The party served with the interrogatories may also
serve cross-interrogatories upon the party proposinl?:J to take
the deposition within 10 days from service of the written
interrogatories. The latter may, within five days, serve re­
-
direct interrogatories. Within three days after being served
-
with re-direct interrogatories, a_ party may serve re-cross
interrogatories upon the party proposing to take the deposition
(Sec. 25, Rule 23, Rules of Court).
4. 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. He shall proceed
promptly to take the testimony of the witness in response to
the interrogatories and to prepare, certify, and file or mail

488 CNIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
the deposition, attaching thereto the copy of the notice and
the interrogatories received by him (Sec. 26, Rule 23, Rules of
Court).
5. When a deposition upon interrogatories is filed, the
officer taking it s4all promptly give noti_ce thereof to all the
parties, apd may furnish copies, to them or to the deponent
upon payinent of reasonable <::ha.rges therefor (Sec. 27� Rule
:·:; :�;c·
29, Rule/to/ Court).
Before whom taken
1. Within the Philippines, a deposition need not be
taken before a judge, although it- may be taken before one.
It may also be taken before a notary public (Sec. 10, Rule 23,
Rules of Court) or before any person authorized to administer
oaths if the parties so stipulate in writing (Sec. 14, Rule 23,
Rules of Conrt).
2. Outside the Philippines, a deposition may be taken
before (a) a secretary of an embassy or legation, consul general,
consul, vice-consul, or consular agent of the Republic of the
Philippines; (b) such person or officer as may be appointed by
commission or letters rogatory; or (c) a person authorized to
administer oaths by written stipulation of the parties (Sec. 11,
Rule 23, Rules of Court; Sec. 14, Rule 23, Rules of Court).
. 3. No d�positicm shall be taken before a person who
is (a) a relative within the sixth degree of consanguinity or
affinity, or employee or counsel of any of the parties; (b) a
relative within the same degree, or employee of such counsel;
or (c) one financially interested in the action (Sec. 13, Rule 23,
Rules of Court).
Use of deposii:ions pending action
1. Any part or all of the deposition, so far as admissible
under the rules on 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, or any of its parts, may be used at the trial or upon
the hearing of a motion or an interlocutory proceeding (Sec. 4,.
Rule 23, Rules of Court).
CHAPTER VII 489
PRE-TRIAL AND MODES OF DISCOVERY
2. 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 pa,,rty or, at the time of taking the deposition
was an officer )'.airector, or managing ;�gent of a public or
private corporation, partnership, or association which is
a party;
(c) For any purpose by any party, where the
deponent is a witness, whether or not a party, if the
court finds that.· (i) the witness is dead; (ii) that the
witness resides more than 100 kilometers from the place
·r: of trial or hearing, or is out of the Philippines, unless
it appears that his absence was procured by the party
offering the deposition; (iii) that the witness is unable to
attend or testify because of age, sickness, infirmity, or
imprisonment; (iv) that the party offering the deposition
has been unable to procure the attendance of witnesses
by subpoena; or (v) when exceptional circumstances
exists, upon application and notice (Sec. 4, Rule 23, Rules
of Court).
Effect of. substitution of parties
The substitution of parties does not affect the right to
use the depositions previously taken (Sec. 5, Rule 23, R'Jlles
of Court). The same rule also provides that when an action
has been dismissed and another action involving the same
subject and between the same parties, or their representatives
or - successors in interest, is afterwards brought, all the
depositions lawfully taken and duly filed in the former action
may be used in the latter as if originally taken.
Effeci of the taking 01 deposition of a person
A person whose deposition is taken by a party does not,
by reason of such deposition, make such person the witness of
said party. Section 7 of Rule 23 clearly declares that "[A] party
490 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
shall not' be deemed to make a person his own witness for any
purpose by taking his deposition."
Effect of using the deposition of a person
While the_ taking of the deposition of a person does no_t
make.that person a witnessqf the party taking his g,eposition,
the ir\troduction of the depd$."ltion, or any part the;�of, makes
the deponent the witness of th� party introducing the deposition
if used for a purpose othe.r than that of contradicting or
impeaching the deponent (Sec. 8, Rule 23, Rules of Court). The
same provision, however, does not make this rule applicable
to the use by an adverse party of a deposition mentioned in
paragraph (b) of Sec. 4 of Rule 23.
Depositions before action
This type of deposition is availed of when a person desires
to perpetuate his own testimony or that of another person
regarding any matter that may be cognizable in any court of
the Philippines (Sec. 1, Rule 24, Rules of Court).
into
Perpetuation of testimony before action testimony reduced
1. The perpetuation of a testimony is done by filing writing
a
verified petition in the place of the residence of any expected
-
adverse party (Sec. 1, Rule 24, Rules a/Court).
2. Notices shall be sent in accordance with the Rules
(Sec. 3, Rule 24, Rules of Court) and if the court is satisfied
that the perpetuation of the testimony may prevent a failure
or delay of justice, it shall make the appropriate order for the
taking of the deposition (Sec. 4, Rule 24, Rules of Court).
3. The deposition taken under this Rule is admissible
in evidence in any action subsequently brought involving the
same subject matter (Sec. 6, Rule 24, Rules of Court).
Depositions pending appeal
1. If an appeal has been taken from a judgment of a
court, includi11g the Court of Appeals in proper cases, or
CHAPTER VII . 491
PRE-TRIAL AND MODES OF DISCOVERY
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
said court (Sec. 7, Rule 24, Rules of Court).
2. The p_:::i.rty who desires to pei:;petuate the testimony
may make a iffi.otion in said court"i&'or leave to take th�;
depositions. Thknotice and service sh�ll be made in the san1t
manner as if the action is pending (Sec. 7, Rule 24, Rules of
Court).
3. The motion shall state the (a) names and addresses
of the persons to be examined; (b) substance of the testimony
he expects to elicit from each of the persons to be examined;
and (c) reason for perpetuating their testimony (Sec. 7, Rule
0
24, Rules of Court).
4. The court shall allow the depositions if it finds that
the perpetuation of the testimony is proper to avoid a failure
or delay of justice. The depositions may be taken and used in
the same manner and under the same conditions prescribed
for depositions taken in pending actions (Sec. 7, Rule 24, Rules
of Court).
II. INTERROGATORIES TO PARTIES (BAR 2016)
(RULE 25) ·
Purpose of interrogatories to parties (Bar 2012; 20'16) 1
1. This mode of discovery is availed of by a party to the
action for the purpose of eliciting material and relevant facts
from any adverse party (Sec. 1, Rule 25, Rules _of Court). The­
purpose of written interrogatories is to assist the parties in
clarifying the issues and in ascertaining the facts involved in
a case (Philippine Health Insurance Corporation v. Our Lady
of Lourdes Hospital, C.R. No. 193158, November 11, 2015).
2. Existing rules consider this mode of discovery as
important because within one day from receipt of the complaint,
t_he rule mandates not only the preparation of the summons
 492 CIVIL PROCEDURE, VOLUME I
.. CHAPTER VII 493
THE BAR LECTURES SERIES
PRE-TRIAL AND MODES OF DISCOVERY

but also the issuance of an order requiring the parties to

avail of interrogatories to parties under Rule 25 and request
for admission by adverse party under Rule 26. The parties,
however, may use, at their discretion, depositions under Rule
23 or other measures under Rules 27 and 29 within five days
from the filing of the answer (A.M. No. 03-1-09-SC, IA, 1, 1.1,
J,;,2).
Distinguished from a bin
. of particulars
A bill of particulars is directed to a pleading and is designed
to seek for a more definite statement or for particulars of any
matter not averred with sufficient definiteness in a pleading.
(Sec. 1, Rule 12, Rules of Court). Interrogatories to parties are
not directed against a particular pleading. Instead, they seek
the disclosure of all material and relevant facts from a party
(See Sec. 1, Rule 25, Rules of Court).
Distinguished from written interrogatories in a deposition
Written interrogatories in a deposition are not served
upon the adverse party directly. They are instead delivered
3. The interrogatories shall be answered fully in writ­
ing, 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 15 days after service thereof. This
period may, upon rri�tion and for good cause shown, =
= be extend­
ed or shm;�ined by the court (Sect2, Rule 25, Rules of Cfurt).
.
4. The party against whb.m it is directed may\nake
objections·to the interrogatories.. If he does so, said objections
shall be presented to the court within 10 days after service of
the interrogatories. The filing of the objections shall have the
effect of deferring the filing and service of the answer to the
interrogatories until the objections are resolved (Sec. 3, Rule
25, Rules of Court).
Effect of failure to serve written interrogatories
A party not served with written interrogatories may not
be compelled by the adverse party to give testimony in open
court, or give deposition pending appeal, unless allowed by th e

to the officer designated in the notice (Sec. 26, Rule 23, Rules court for good cause shown and to prevent a failure of justic,­ e

of Court). The service of written interrogatories is a mode (Sec. 6, Rule 25, Rules of Court).
of deposition separate and distinct from interrogatories to
parties (See Sec. 1, Rule 23,, Rules of Court). Interrogatories III. ADMISSION BY ADVERSE PARTY
, (BAR 2016; 2018)
. � . . . .

to parties are served directly upon the adverse party (Sec. 1,

Rule 25, Rules of Court). (RULE 26)
Purpose of admission by adverse party
Procedure (Bar 2016)
The purpose of this mode of discovery is to allow one
1. The mode of discovery is availed of by filing and
party to request the adverse party, in writing, to admit certain
serving upon the adverse party written interrogatories to
material and relevant matters which, most likely, will not be
be answered by the party served. If the party is a juridical -

disputed during the trial. To avoid unnecessary inconvenience

entity, the written interrogatories shall be answered by any
to the parties in going through the rigors of proof before the
of its officers competent to testify in its behalf (Sec. 1, Rule 25,
trial, a party may request the other to:
Rules of Court).
(a) admit the genuineness of any mate:r;ial and
2. No party may, without leave of court, serve more
relevant document described in and exhibited with the
than one set of interrogatories to be answered by the same
request; or
party (Sec. 4, Rule 25, Rules of Court).
494 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
(b) admit the truth of any material and relevant
matter of fact set forth in the request (Sec. 1, Rule 26,
Rules of Court).
When request is made
..
A party may)ile and serve the wr�tten request at any
time after issues;pave
. . . Rule 26, Rules of
been joined (Sec:}J,
�u�
Effect of not filing a written request for admission (Bar 2012)
1. As a consequence of the failure to avail of this mode
of discovery, the party shall not be permitted to present evidence
on facts that are material and relevant and which are, or ought
to be, within the personal knowledge of the other party, unless
otherwise allowed by the court for good cause shown and to
prevent a failure of justice (Sec. 5, Rule 26, Rules of Court).
2. Note, too, that within one day from receipt of the
complaint, the rule mandates not only the preparation of
the summons but also the issuance of an order requiring the
parties to avail of interrogatories to parties under Rule 25
and request for admission by adverse party under Rule 26.
The parties, however, may use, at their discretion, depositions
under Rule 23 or other measures under Rules 27 and 29 within
five days from the filing of the answer (A.M. No. 03-1-09-SC,
IA, 1, 1.1, 1.2, July 13, 2004). - filing with the court objections to the request fo:i: admission.
Effect. of failure to file and serve a sworn statement of denial
(Bar 20i8)
1. It is advisable for the party to whom the written
request is directed to file and serve upon the party requesting
the admission a sworn statement either (a) specifically
denying the matters of which admission is requested, or (b) if
he does not deny the same, to set forth in detail the reasons
why he cannot truthfully admit or deny those matters. This
sworn statement shall be filed and served within the period
designated in the request but which shall not be less than 15
-
days from the service of such request, or within such further
-
time as the court may allow (Sec. 2, Rule 26, Rules of Court).
CHAPTER VII 495
PRE-TRIAL AND MODES OF DISCOVERY
2. If the party to whom the written request for admis­
sion is directed does not file the required sworn statement,
=
each of the matters of which an admission is requested shall
be deemed admitted (Sec. 2, Rule 26, Rules of Court). A request
for admission can be the basis of a summary judgment. The
reque�,t can be the basis thereof when its subject is deemed
to hay,e been admitted by th# party as a result of th:at party's
failurk' to respond to the tJquest (Estate of FerViinand E.
Marcos v. Republic, G.R. No._.213037, January 18, 2017). Bar
2018
Effect of admission
Any admission made by a party as a consequence of the
failure to comply with the request is only for the purpose of
the pending action and shall not be deemed an admission for
any other purpose. Likewise, the admission cannot be used
against the admitting party in any other proceeding (Sec. 3,
Rule 26, Rules of Court).
Deferment of compliance
To avoid the implied admission, the party requested may
have the compliance of the filing and service of the sworn
statement deferred. This deferment may be effected by the
Compliance shall be deferred until such objections are resolved
by the court (Sec. 2, par. 2, Rule 26, Rules of Court).
Withdrawal of admission
Admissions made under this mode of discovery, whether
express or implied, are not final and irrevocable. The court may
allow the party making the admission to withdraw or amend
the admission upon such terms as may be just (Sec. 4, Rule
26, Rules of Court). To effect the withdrawal, the admitting
party should file a motion to be relieved of the effects of his
admission.
496 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
IV. PRODUCTION OR INSPECTION
OF DOCUMENTS OR THINGS (RULE 27)
Purpose (Bar 2012)
1. The purpose of this mode of discovery is to allow a
party to seek gn order from the cou:rt in which the action;;ts
pending to: · :'.( l!t ,c• .,
(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 possession, custody or control;
and
(b) order any party to permit entry upon designated
land or other property in his possession or control for
the purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant
object or operation thereon (Sec. 1, Rule 27, Rules of
Court).
2. This mode of discovery is not only for the benefit of
a party, but. also for the, court and for: it to discover all the
relevant and material facts in connection with the case before
it. The scope of discovery under this mode is to be liberally
construed so as to provide the litigants with information
essential to the fair and amicable settlement or expeditious
trial of the case. All the parties are required to lay their cards
on the table so that justice can be rendered on the merits of the
case. While the grant of a motion for production of a document
is admittedly discretionary on the part of the trial court
judge, nevertheless, it cannot be arbitrarily or unreasonably
denied because to do so would bar access to relevant evidence
that may be used by a party-litigant and, hence, impair his
fundamental right to due process. The test to be applied by the
trial judge in determining the relevancy of documents is one
of reasonableness and practicability (Eagleridge Development
CHAPTER VII 497
PRE-TRIAL AND MODES OF DISCOVERY
Corporation v. Cameron Granville 3 Asset Management, Inc.,
G.R. No. 204700, April 10, 2013,· See also Philippine Health
Insurance Corporation v. Our Lady of Lourdes Hospital, G.R.
No. 193158, November 11, 2015).
3. This discovery procedure has a limitation: the
documents to be disclosed and produced should be "not
privileged" (Chan v. Ch:lf:n, G.R. No. 179786, ,t.#.ly 24, 2013).
Filing of a motion; order of the court
1. A motion must be filed by the party seeking the
production or inspection of documents and things, and the
motion must show good cause supporting the same (Sec. 1,
Rule 27, Rules of Court).
2. 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 (Sec.
1, Rule 27, Rules of Court).
Privileged documents
1. Rule 27 provides that the documents, papers, books,
accounts, letters, photographs, objects or tangible things that
may be produced and inspected should not be privileged. The
documents must not be privileged against disclosure. On the
ground of public 'policy, the ruies providfog for production
and inspection of books and papers do not authorize the
production or inspection of privileged matter; that is, books
and papers which, because of their confidential and privileged
character, could not be received in evidence. Such a condition
is in addition to the requisite that the items be designated and
must constitute or contain evidence material to any matter
involved in the action and which are in the party's possession,
custody or control (Sec. 1, Rule 27, Rules of Court).
2. Sec. 24 of Rule 130 draws the types of disqualification
by reason of privileged communication, to wit: (a) commu­
nication between husband and wife; (b) communication
between attorney and client; (c) communication between
physician and patient; (d) communication between priest and
 498 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
penitent; and (e) communication of public officers involving
public interest. There are, however, other privileged matters
that are not mentioned by Rule 130. Among them are the
following: (a) editors may not be compelled to disclose the
source of published news; (b) voters may not be compelled to
disclose for whom they voted; (c) trade secrets; (d) information
contained.j:p. tax census returns;:i;l:l.nd (d) bank deposit�,(Air
Philippirie'ifCorporation u. Penns.well, Inc., 540 SCRA 215).
V. PHYSICAL AND MENTAL EXAMINATION
OF PERSONS (RULE 28)
Applicability
This mode of discovery applies to an action in which the
mental or physical condition of a party is in controversy (Sec.
l, Rule 28, Rules of Court). Examples of this action would be:
(a) An action for annulment of a contract where the
ground relied upon is insanity.
(b) A petition for guardianship of a person alleged
to be insane.
(c) An action to recover damages for personal
injury where the issue is the extent of the injuries of the
plaintiff.
Procedure
1. A motion must show good cause for the examination,
with notice to the other parties aside from the party to be
examined. The motion shall, likewise, specify the time, place,
manner, conditions and scope of the examination and the
person or persons by whom it is to be made (Sec. 2, Rule 28,
Rules of Court). The motion is to be filed with the court where
the action is pending (Sec. l, Rule 28, Rules of Court).
2. The party examined may request the party causing
the examination to be made to deliver to him a copy of a
detailed written report of the examining physician setting out
his :findings and conclusions. After such request and delivery,
CHAPTER VII 499.
PRE-TRIAL AND MODES OF DISCOVERY
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, pr,eviously or thereafter made, of the
same mental or physical condition (Sec. 3, Rule 28, Rules of
Court).
If the party ef�mined refuses to deliyer the report, the
court may make an1.�rder requiring the deliyery on such terms
as are just. If it is the physician who failJ\:Jr refuses to make
a report, the court may exclude his testimony if offered at the
trial (Sec. 3, Rule 28, Rules of Court).
Waiver of privilege
By requesting and obtaining a report of the examination
or by taking the deposition of the examiner, the party
examined waives any privilege he may have in that action
or any other involving the same controversy, regarding the
testimony of every other person who has examined or may
thereafter examine him in respect of the same mental or
physical examination (Sec. 4, Rule 28, Rules of Court).
VI. REFUSAL TO COMPLY WITH THE
MODES OF DISCOVERY
(RULE 29)
Aside from those already discussed, the sanctions•
for refusal to comply with the modes of discovery may be
summarized as follows:
A. Refusal to answer any question upon, o-ral
examination
(a) If a party refuses to answer any question
upon oral examination, the proponent may apply to the
proper court, for an order to compel an answer. The same
procedure may be availed of when a party or witness
refuses to answer any interrogatory submitted pursuant
to the rules on the modes of discovery (Sec. ( Rule 29,
Rules of Court). If the application is granted, the court
shall order the deponent or refusing party to answer the
 CHAPTER VII 501
500 CIVIL PROCEDURE, VOLUME I. PRE-TRIAL AND MODES OF DISCOVERY
THE BAR LECTURES SERIES

party or
(d) The court may direct the arrest of any
' '

question or interrogatory. If the refusal is unjustified, orders of the

the court may require the refusing party or deponent or agent of a party for disobeying any of the
a phy sica l or mental
the counsel advising the refusal, or both of them, to pay court, except an order to submit to
examination (Sec. 3[d], Rule 29, Rules of
Cou rt).
the proponent the amount of the reasonable expenses
incurred in obtaining the order, including attorney's fees
(Sec. 1, Rule 29, Rules of Court). Also, a refusal to answer · C. Refusal to be sworn
g directed by;,'
aft�r being directed by th�jproper court may be coµsidered A refusal of, \)1. party to be sworn #'ter bein
· considered a contempt of tha court (Sec
a: �bntempt of that court '(Sec. 2, Rule 29, Rules iJf Court). t . 2,t'.
the court may b{
(b) If the application for an order to compel a Rule 29, Rules ofCourt).
deponent to answer is denied because of the absence of
a substantial justification, the court may require the D. Refusal to admit
uineness of any
proponent or the counsel advising the application, or If a party refuses to admit the gen
of fact and serves a
both of them, to pay to the refusing party or deponent the document or the truth of any matter
party later on proves
amount of the reasonable expenses incurred in opposing sworn denial thereof, and if the other
truth of such matter
the application, including attorney's fees (Sec. 1, Rule 29, the genuineness of the document or the
tion, may order the
Rules of Court). of fact, the court, upon proper applica
in making such proof,
B. Refusal to answer designated or particular former to pay the reasonable expenses
including attorney's fees (Sec. 4, Rule 29,
Rules of Court).
questions or refusal to produce documents or things or
s or to serve
to submit to physical or mental examination E. Failure to attend deposition
2010)
(a) The court may order that the matters, regarding answers to interrogatories (Bar
or any part of the
which the questions were asked, shall be taken as 1. The court may (a) strike out all
acti or proceeding or
on
established for purposes of the action in accordance with pleading of that party, (b) dismiss the
by default against that
the claim of the party obtaining them
· (Sec. 3[a], Rule 29, any part thereof, (c) enter a judgment
him to' pay reasonable
·
Rules of Court). party, and, in its discretion, (d) order
ng attorney's fees (Sec.
(b) The court may issue an order refusing to allow expenses incurred by the other, includi
the disobedient party to support or oppose designated 5, Rule 29, Rules of Court).
5 of Rule 29 will
claims or defenses or prohibiting him from introducing 2. The consequences under Sec.
whole set of written
in evidence designated documents or things or items of apply if a party refuses to answer thJ
lar question: Where
testimony, or from introducing evidence of physical or · interrogatories, and not just a particu
mental condition (Sec. 3[b], Rule 29, Rules of Court). rrogatories is served,
the party, upon whom the written inte
n in the set of written
(c) The court may issue an order striking out refuses to answer a particular questio
pelling him to answer
pleadings or parts thereof, or staying further proceedings interrogatories and despite an order com
obey the order, Sec. 3(c)
until the order is obeyed, or dismissing the action or the particular question, still refuses to
of Rule 29 will apply (Zepeda v. China
proceeding or any part thereof, or rendering a judgment Banking Corporation,
by default against the disobedient party (Sec. 3[c], Rule 504 SCRA 126, 134).
29, .Rules of Court).
 502 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
The · following are the consequences provided for in
Sec. 3(c) of Rule 29:
(a) The court may issue an order striking out
pleadings or parts thereof;
(b) · The court may issu� an order staying further
proceedings until thes.order is obeyed;
;:/:t ,:,/:.;n::
(c) The court may issue an order dismissing the
action or proceeding .or any part thereof; or
(d) The court may issue an order rendering a
judgment by default against the disobedient party.
3. The matter of how, and when, the above sanctions
should be applied is one that primarily rests on the sound
discretion of the court where the case is pending, having
always in mind the paramount and overriding interest of
justice. For while the modes of discovery are intended to attain
the resolution of litigations with great expediency, they are
not contemplated, however, to be ultimate causes of injustice.
It behooves trial courts to examine well the circumstances of
each case and make their considered determination thereafter
(Zepeda v. China Banking Corporation, supra).
-oOo-
Chapter VIII
TRIAL, DEMURRER TO EVIDENCE,
AND JUDGMENT
A.TRIAL
Meaning of 'trial'
Trial is the judicial examination and determination of
the issues between the parties to the action (Black's Law
Dictionary, 5th Ed., 1348; Citations omitted). 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.
Trial and hearing
The terms 'trial' and 'hearing' are sometimes
interchangeably used. There is, however, a marked difference
1>etween these, terms. 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 (Trocio v. Labayo, 53 SCRA 97, 100).
When trial is necessary/unnecessary (Bar 1996)
1. Generally, a trial is necessary when there are issues
to be tried as 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
503

504 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
trial since there is no triable issue. In such a case, the court
may, on motion, render a judgment on the pleadings.
There are also occasions in which it appears from the
pleadings, affidavits, depositions and admissions of the
parties that a legal dispute exists. Such allege legal dispute
turns out, however, riot to be a genuine issue since it does not
,,::\ touch on any materi@fact involved in the,2gse, as when the
. Up�; µ entry of the case it(the trial calendar, t.
< only controversy is t:ii� amount of damages/'and not whether
or not the claiming party is entitled to such damages. A trial is
not necessary in such.a situation because the court, on motion,
may render a summary judgment. Courts hold trials only on
material and crucial issues. Trials are not conducted to resolve
feigned issues or immaterial or minor matters raised by the
parties.
2. Specifically, 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 (Rule 34, Rules of Court).
(b) Where from the pleadings, affidavits, depositions
and other papers, there is actually no genuine issue, the
court may render a summary judgment (Rule 35, Rules of
Court).
(c) · Where the parties have entered into a
compromise or an amicable settlement either during the
pre-trial or while the trial is in progress (Rule 18, Rules
of Court; Art. 2028, Civil Code of the Philippines).
(d) Where the complaint has been dismissed with
prejudice, or when the dismissal has the effect of a.n
adjudication on the merits (Sec. 5, Rule 16; Sec. 3, Rule
17; Sec. 5, last par., Rule 7, Rules of Court).
(e) Where the case falls under the operation of the
Rules on Summary Procedure.
(£) Where the parties agree, in writing, upon
the facts involved in the litigation, and submit the
cas. e for judgment on the facts agreed upon, without
CHAPTER VIII 505
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
the introduction of evidence. If, however, there
is no
trial may be
agreement as to all the facts in the case,
30, Rule s
held only as to the disputed facts (Sec. 6, Rule
of Court).
Notice of Trial
11-r clrrk
triafin• such
of courCshall notify the partl�s of the date of
pt of the notic e at least five days
manner .as to ensure the recei
before such date (Sec. l,Rule 30, Rule s of Cour t).
Calendaring of cases
In calendaring cases, the clerk of court shall give
preference to habeas corpus cases, election cases
, special civil
by law to be prefe rred (Sec. I,
actions, and those so required
Rule 20, Rules of Court).
Session hours
1. The session hours of trial courts shall be from 8:30
a.m. to noon and from 2:00 p.m. to 4:30 p.m. from Monday
to Friday. The hours in the morning shall be devoted to the
conduct of the trial, while the hours in �he afternoon shall
be utilized for the conduct of (1) pre-trial conferences; (2)
writing of decisions, resolutions, or orders; or (3) continuation
of the trial on the merits, whenever rendered necessary' as
may be required by the Rules of Court, statute, or circulars in
specified cases. This schedule may be modified upon request
of the Integrated Bar of the Philippines in multi-sala courts in
places where there are few practicing lawyers (Administrative
Circular No. 3-39, January 15, 1999).
2. Unless the docket of the court requires otherwise,
not more than four cases shall be scheduled for trial daily
(Administrative Circular No. 3-39, January 15, 1999).
A.djcH.m11ments and postponements
a trial from
The general rule is that a court may adjourn
expe ditio us and
day-to-day, an.cl to any stated time, as the
506 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
convenient transaction of business may require (Sec. 2, Rule
30, Rules of Court).
Limitation on the authority to adjourn
.. 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 ajl, except when authol."i:zed in writing by the J'.
··'
Court Administr;tor (Sec. 2, Rule 30, R�les of Court).
Postponement or continuance; not a matter of right
1. "As a rule, the grant or denial of a motion for
postponement 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''
(Milwaukee Industries v. Court of Tax Appeals, 636 SCRA 70,
77; Go-Bangayan v. Bangayan, Jr., G.R. No. 201061, July 3,
2013; See also Spouses Sibay v. Spouses Bermudez, G.R. No.
198196, July 17, 2017).
2. 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 (Republic v. Sandiganbayan,
301 SCRA 237, 245). A party asking for postponement has
no absolute right to expect that his motion would be granted
(Republic v. Sandiganbayan, ibid. at 246; See also Spouses
Sibay v. Spouses Bermudez, G.R. No. 198196, July 17, 2017).
Postponement on the ground of illness
Trial may be postponed 0n the ground of illness of either
· party or counsel by complying with the following:
(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 (Sec. 4, Rule 30, Rules of Court).
CHAPTER VIII 507
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
Postponement on the ground of absence of evidence (Bar
1975)
1. Trial may be postponed on the ground of absence. of
evidence upon compliance with the following:
(a) · · A motion for postponement must be filed; and
(b) The motion:#lust be supported btUm affidavit
showing the (1) mat�riality or relevancy of the evidence,
· - and that (2) due diligence has been used to procure it
(Sec. 3, Rule 30, Rules of Court).
2. If the adverse party admits the facts to be given in
evidence, the trial shall not be postponed even if he reserves
the right to object to the admissibility of the evidence (Sec. 3,
Rule 30, Rules of Court).
Reception of evidence
The judge of the court where the case is pending shall
personally receive the evidence to be adduced by the parties.
Reception of the evidence may, nevertheless, be delegated to
the clerk of court, who is a member of the bar, in any of the
following cases:
(a) in default hearings;
(b) ·in ex parte hearings; or
(c) in any case by written agreement of the parties
(Sec. 9, Rule 30, Rules of Court).
Issues in the trial
612 The trial shall be- limited to the· issues stated in the pre­
trial order. This is the general rule, unless the court so directs
for special reasons (Sec. 5, Rule 30, Rules of Court).
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
508 CIVIL P:ROCEDURE, VOLUME I
THE BAR LECTURES SERIES
of evidence, but if the parties agree only on some facts in issue,
the trial shall be held as to the disputed facts in such order as
the court shall prescribe (Sec. 6, Rule 30, Rules of Court). If the
parties have agreed to submit the case for judgment based on
the facts agreed upon, a trial need not be conducted because
presentation of evidence would no longer be ·necessary.
':'.-'! i-:�
�<?·1:. �-t/;:
Order of trial; modification of the order of trial; hot!''tub
hearing
1. Sec. 5 of Rule 30 provides the following order of trial
in a civil case:
XXX
"Subject to the provisions of Section 2 of Rule 31,
and unless the court for special reasons otherwise directs,
the trial shall be limited to the issues stated in the pre­
trial order and shall proceed as follows:
(a) The plaintiff shall adduce evidence in
support of his complaint;
(b) The defendant shall then adduce evidence
in support of his defense, counterclaim, cross-claim
and third-party complaint;
(c) The third-party defendant, if any, shall
adduce evidence of his defense, counterclaim; cross-
claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any,
shall adduce evidence of the material facts pleaded
by them;
(e) The parties against whom any counter­
claim 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
CHAPTER VIII 509
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
(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 other pleadings.
If several defendants or third-party defendants, and
so forth, having separate d,efenses appear by different
.••·� counsel, the court. shall determine the relative order of
presentation of thiit evidence."
'.·.i·}!
. . i,� .....
2. The above order of trial is only the _general rule. The
order of trial is (a) subject to the provisions of Sec. 2 of Rule
31, and (b) unless, for special reasons, the court otherwise
directs (Sec. 5, Rule 30, Rules of Court).
Thus, the normal order of trial may be modified if the
court, in furtherance of convenience and to avoid prejudice,
orders a separate trial of any claim, cross-claim, counterclaim,
or third-party complaint. It may also order, for the same
reasons, a separate trial of any separate \ssue or of any number
of claims, cross-claims, counterclaims, third-party complaints
or issues (Sec. 2, Rule 31, Rules of Court).
Under the same rule, the court may, likewise, order a
modification of the order of trial if it so directs for "special
reasons."
_ 3. Note that effective January 1, 2013, the Judicial
Affidavit Rule took effect by virtue of AM. No. 12-8�8-SC: This
rule requires the submission of judicial affidavits in lieu of
direct testimonies. The rule applies to all actions, proceedings,
and incidents requiring the reception of evidence.
4. In the exercise of its discretion, it appears t'hat
courts, in receiving evidence, may use a method aside from
the traditional modes mentioned in the Rules of Court. For
instance, in one case, the Court of Appeals used the "hot
tub" method in one of its hearings. '1lot tub hearing" is the
colloquial term for concurrent expert evidence, a method used
for giving evidence in civil cases in Australia. In a "hot
tub" hearing, the judge can hear all the experts discussing
the same issue at the same time to explain each of their
510 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
points in a discussion with a professional colleague. The
objective is to achieve greater efficiency and expedition,
by reduced emphasis on cross-examination and increased
emphasis on professional dialogue, and swifter identification
of the critical areas of disagreement between the experts
(Internat{onal Se;vice for the Acquisitio�· of the Agri-13iotech
Applicat(cjns, Inc. v. Greenpeaci}�outheast Asia [Philippines],
: ·.
G.R. No.:209271, December 8, 2015).
Reopening the case of a party for the purpose of introducing
further evidence
1. The parties may be permitted by the court to adduce
evidence on their original case even after the presentation of
their original evidence, provided:
(a) there are good reasons, and
( b) such reasons are in furtherance of justice.
2. The basis for a motion to reopen a party's case to
introduce further evidence is Sec. 5(£), Rule 30 of the Rules of
Court, which reads:
"Sec. 5. xxx
(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
xxx" (Emphasis supplied).
Consolidation or severance (Bar 2011)
1. 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 (Republic
v. Heirs of Oribello, Jr., 692 SCRA 645, 657, March 6, 2013;
Neri v. Sandiganbayan, G.R. No. 202243, August 7, 2013).
The actions to be consolidated must involve a common
question of law or fact. The rule is clear: "When actions that
CHAPTER VIII 511
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
involve a common question of law or fact are pending before
the court, the court may order a joint hearing or trial of any
or all the matters in issue in the actions and may order the
consolidation of all the actions" (Sec. 1, Rule 31, Rules of Court).
This means that the several actions which are pending before
the court, arise from the same act, event or transaction, involve
the same or like i$§-4es, and depend largely'.or substantially on
the same evidence:'(Puncia V. Toyota Sli/qw/Pasig, Inc., G.R.
1,1
No. 214399, June.28, 2016).
The use of the word, "may," indicates that consolidation
or severance of cases is not mandatory and is within the sound
discretion of the court (For further readings, see Republic v.
Heirs of Oribello, Jr., 692 SCRA 645, March 6, 2013).
The rationale for consolidation is to have all cases, which
are intimately related, acted ui,ion by one branch of the court
to avoid the possibility of conflicting decisions being rendered
and, in effect, prevent confusion, unnecessary costs and delay.
It is an action sought to avoid multiplicity of suits; guard
against oppression and abuse; clear and congested dockets;
and to simplify the work of the trial court in order to attain
justice with the least expense and vexation to the parties
litigants (Puncia v. Toyota Shaw I Pasig, Inc., G.R. No. 214399,
June 28, 2016).
2. . On the other hand, the . court may also order a .
separate trial of any claim, ·cross-claim, counterclaim, or third­
party complaint, or issues. The court may do so in furtherance
of convenience, or to avoid prejudice (Sec. 2, Rule 31, Rules of
Court).
Kinds of consolidations
"In the context of legal procedure, the term 'consolidation'
is used in three different senses:
(1) Where all, except one of several of actions are
stayed until one is tried, in which case the judgment in
the one trial is conclusive as to the others. This is not
actually consolidation but is referred to as such (quasi­
consolidation).
512 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
(2) 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).
(3) Where sevet!l.l actions are ordered}to be tried
together, but each retains its separate ch::i.racter, and
requires the entry of a separate judgment. This type
of consolidation does not merge the suits into a single
action, or cause the parties to one action to be parties to
the other (consolidation for trial)" (Republic v.. Heirs of
Oribello, Jr., 692 SCRA 645, 657, March 6, 2013; Neri v.
Sandiganbayan, G.R. No. 202243, August 7, 2013).
B. DEMURRER TO EVIDENCE
1. The regular order of trial requires the plaintiff
to adduce evidence in support of his complaint. During the
trial, he presents every evidence available to him - object,
documentary, and testimonial (See Sec. 5[a], Rule 30, Rules of
Court).
2. After the plaintiff has completed the presentation of
his evidence, the defendant shall, then, adduce evidence in
support of his defense, counterclaim or third-party complaint,
as the case may be (See Sec. 5[b], Rule 30, Rules of Court).
There are, however, occasions in which the defendant
may sincerely feel that the plaintiff has not lived up to his
burden of proving the material allegations of his claim and is,
therefore, not entitled to the relief sought for in his complaint.
In other words, the defendant may honestly believe that the
plaintiff has not proven the elements of his cause of action,
hence, the absence or lack of a cause of action.
3. Instead of presenting his evidence, the defendant
may move for dismissal of the case on the ground that, upon
the facts and the law, the plaintiff has shown no right to relief
(Sec..l, Rule 33, Rules of Court). This motion for dismissal is
called a demurrer to evidence.
CHAPTER VIII 513
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
A demurrer to evidence is actually a motion to dismiss
on the ground of insufficiency of the 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 (For further readings, . §_ee
Republic v. DeBorja, G.R. No. 1874.88, January 9, 2017)'.-�lri.
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 (Claudio v. Saraza, G.R. No. 213286, August 26, 2015;
Felipe v. MGM Motor Trading Corporation, G.R. No. 191849;
September 23, 2015; For further readings, see Republic v. De
Borja, G.R. No. 187488, January 9, 2017).
Motion to dismiss in Rule 16 distinguished from demurrer
to evidence
A demurrer to evidence under Rule 33 is, in effect, a
motion to dismiss but is not the motion to dismiss described
under Rule 16. The motions under Rule 33 and Rule 16 may
be distinguished from each other on the following points:
(a) A motion to dismiss under Rule 16 is made
before the filing of the answer; a demurrer to evidence
under Rule 33 is made after the plaintiff rests his case, i.e.,
after the completion of the presentation of his evidence;
(b) There are several grounds for a motion to
dismiss under Rule 16 but only one ground under Rule 33
(that, upon the facts and the law, the plaintiff has shown
no right to relief);
(c) If a motion to dismiss under Rule 16 is denied,
the defendant may file his responsive pleading; under
Rule 33, the defendant may present his evidence;
(d) If the motion to dismiss under Rule 16 is
granted, the complaint may be refiled, depending on the
ground for dismissal; in Rule 33, the complaint may not
 514 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
be refiled and the remedy of the plaintiff is to appeal from
the order of dismissal.
Stage of the proceedings when demurrer to evidence is
availed of
. A demurrer to eyidence is availed of py the defendant
;_}·after the plaintiff ii:i:i'� completed the pr�s
·. ·entation of his
· evidence (Sec. 1, Rut/33, Rules of Court). ↳
after presentation
Ground for a demurrer to evidence of evidence
1. The defendant may move for dismissal on the ground
that upon the facts and the law, the plaintiff has shown no
right to relief (Sec. 1, Rule 33, Rules of Court). This ground is
equivalent to "insufficiency of evidence."
2. Res juclicata is an inappropriate ground for sustain­
ing 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 should
be invoked as a ground for dismissal (Republic u. Tuuera, 516
SCRA 113, 130-131).
Effect of denial of the demurrer to evidence
1. The denial of the demurrer to evidence does not
deprive the defendant of the opportunity to adduce evidence
in his behalf. Under the Rules, if the demurrer is denied, the
defendant shall have the right to present his evidence (Sec.
1, Rule 33, Rules of Court). Hence, where a 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 demanded by the plaintiff (Northwest Airlines,
Inc. u. Court a/Appeals, 284 SCRA 408, 416).
2. An order denying a demurrer to the evidence
is interlocutory and is, therefore, -
not appealable. It can,
CHAPTER VIII 515
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
however, be the subject of a petition for certiorari in case of
grave abuse of discretion or an oppressive exercise of judicial
authority (Katigbak u. Sandiganbayan, 405 SCRA 558, 572;
see Sec. l[b], Rule 41, Rules of Court).
3. Note that .a party who files a demurrer to evidence
that is subsequently denied, in a,n election case, cannot insist
on the dght to present evidern;:e/ The provision of th�{Rules
of Court �overning demurrer {o. evidence does0 not apply to
an election case (Gementiza u. COMELEC, 353 SCRA 724,
730). The Rules of Court, under the express dictum in Sec. 4
of Rule I, "shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceedings x x x"
(Italics supplied).
!Effect of granting the demurrer to evidence
1. If the demurrer is granted, the case shall be
dismissed. However, if, on appeal, the order granting the
motion is reversed, the defendant loses his right to present
evidence (Sec. 1, Rule 33, Rules of Court; Republtc u. Tuuera,
516 SCRA 113, 136).
2. It is not correct for the appellate court reversing the
order granting the demurrer to remand the case to the trial
court for further proceedings. The appellate court should,
instead of remanding the case, render judgment on the basis
0
of the evidence submitted by the plaintiff.
In a case, the trial court, acting on respondents' demurrer
to evidence, dismissed the complaint on the ground that the
plaintiff had adduced mere hearsay evidence. However, o_n
appeal, the appellate court reversed the trial court because
the genuineness and due execution of the disputed pieces of
evidence had, in fact, been admitted by defendants.
The Court clearly instructed:
"Applying Rule 33, Section 1 of the 1997 Rules of
Court, the CA should have rendered judgment on the
basis of the evidence submitted by the petitioner. While
the appellate court correctly ruled that "the documentary
 517
CHAPTER VIII
516 . CML PROCEDURE, VOLUME I TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
THE BAR LECTURES SERIES

C.JUDGMENT
evidence submitted by the [petitioner] should have been
allowed and appreciated x x x," and that "the petitioner
presented quite a number of documentary exhibits Meaning of a judgment
a court of competent
x x x enumerated in the appealed order," we agree with 1. A judgment is the final ruling by
other matters submitted
jurisdiction regarding the rights or
petitioner that the CA had sufficient evidence on record
cahilig v. Heirs of Gracia
to it in an action or proceeding (Ma
· to decide the collection suit. A remand is not only frowned
)
M. �agalit, 344 SCRA 83,§! . 848 . A
upon by the Rules. it is also logically unnecessary on judgment isithe court's
the basis of th'.� facts on record" (Rd�iowealth Finance determindtion of the
officiiil and final consider�tion and
Corporation V. Del Rosario, G.R. No. 138739, July 6, 2000; the parties (46Am Jur 2d,
Underscoring. supplied). respyctive rights and obligations of
Judgments Sec. 1).
t, in the process of
Demurrer in a civil case as distinguished from a demurrer in 2. It is vital to keep in mind tha
g con trov ersies, courts can
a criminal case (Bar 2007) rendering a judgment or in resolvin parties. Courts,
ded by the
(a) In a civil case, leave of court is not required before only consider facts and issues plea
r them, are not omniscient.
filing a demurrer. In a criminal case, a demurrer is filed with as well as magistrates presiding ove
issues presented before
or without leave of court (Sec. 23, Rule 119, Rules of Criminal They can only act on the facts and
y may not even substitute
Procedure). them in appropriate pleadings. The
evidence. Nor may they take
their own personal knowledge for
ressly provided as subjects
(b) In a civil case, if the demurrer is granted, the order notice of matters except those exp
Justice Society v. Atienza,
of dismissal is appealable (Sec. 1, Rule 33, Rules of Court). of mandatory judicial notice (Social
In a criminal case, the order of dismissal is not appealable 545 SCRA 92, 114).
because of the constitutional policy against double jeopardy.
The dismissal is equivalent to the acquittal of the accused. Judgment and decision
mous with "decision"
(c) In a civil case, if the demurrer is denied, the "Judgment" is normally synony
defendant may proceed to present his evidence (Sec. 1, Rule (Tung_ Chin Hui v. R_odriguez, 340 SCRA 765, 774).
33, Rules of' Court). In a ·criminal case, the accused may
adduce his evidence only if the demurrer is filed with leave of Requisites of a valid judgment
court. He cannot present his evidence if he filed the demurrer following requisites
without leave of court (Sec. 23, Rule 119, Rules of Court). 1. For a judgment to be valid, the
must exist:
(d) In a civil case, the court cannot, on its own initiative, be clothed with
(a) The court or tribunal must
make a demurrer. In- a criminal case, the court may do so the matter before it
(Sec. 23, Rule 119, Rules of Court). This distinction is deemed authority to hear and ·determine ;
(Acosta v. COMELEC, 293 SCRA 578, 580)
modified by AM. No. 15-06-10-SC (Revised Guidelines for
tion over the
Continuous Trial in Criminal Cases). After the prosecution (b) The court must have jurisdic
rests its case, the court shall inquire from the accused if he/ parties and the subject matter;
given an opportu-­
she desires to move for leave of court to file a demurrer, or (c) The parties must have been
to proceed with the presentation of his/her evidence. The alf (Acosta v. COME-
nity to adduce evidence in their beh
guidelines do not provide for the dismissal by the court on its LEC, ibid.);
own initiative.

518 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
(d) The evidence must have been considered by
the tribunal in deciding the case (Acosta v. COMELEC,
supra);
(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, ineffect�ve
•,f f
(Corpus,-�. Sandiganbayan, 44fSCRA 294, 309); }'
(f) ..The judgment must 9tate clearly the facts and
the law upon which it is based, signed by the judge and
filed with the clerk of court (Sec. 1, Rule 36, Rules of
Court; Sec. 14, Art. VIIL Constitution of the Philippines;
Mendez v. Shari'a District Court, 5th Shari'a District,
Cotabato City, C.R. No. 201614, January 12, 2016; North
Cotabato Communications Corporation v. Sto. Tomas,
C.R. No. 217575, June 15, 2016).
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
for its action. The losing party is entitled to know why he lost,
so he may appeal to the higher court, if permitted, should
he believe that the decision should be reversed (Go v. �ast
Oceanic Leasing and Finance Corporation, C.R. Nos. 206841-
42, January 19, 2018).
2. 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 (De Leon u. People, C.R. No. 212623, January 11,
2016). A decision, with nothing to support it, is a patent nullity
and should be struck down and set aside as void (Miguel u. JCT
Group, Inc., 453 SCRA 529, 541) and accordingly, the Court
CHAPTER VIII 519
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
will not hesitate to strike down decisions rendered which do
not comply with the Constitutional directive (South Cotabato
Communications Corporation v. Sta. Tomas, C.R. No. 217575,
June 15, 2016).
Orders granting or denying a motion to dismiss
. l. It is not onlyjudgments which mu�t distinctly and
f
clearly state the facts.1nd the law upon whic1 they are based.
.Under Sec. 3 of Rule 16 of the Rules of Court, as amended, it
is required that resolutions disposing of a motion to dismis"'
shall state clearly and distinctly the reasons therefor.
This requirement proscribes the common practice of
perfunctorily dismissing a motion to dismiss for lack of
merit. Such cavalier dispositions can often pose difficulty and
misunderstanding on the part of the aggrieved party in takin
:
recourse therefrom and, likewise, on the higher court called
upon to resolve the same, usually on certiorari (Barrazona v.
RTC of Baguio, 486 SCRA 555, 561-562).
2. An example of an order violative of the Rules of
Court is one which reads: "This Court finds that the grou'nd
stated in the Motion to Dismiss are without merit, hence, th
same is denied" (Barrazona v. Regional Trial Court of Baguio
ibid. at 561; Italics ours).
Conflict between the dispositive portion and body of the
decision
l. A judgment has two parts, namely, (a) the body of
the judgment or ratio decidendi, and (b) the dispositive portion
of the judgment or fallo.
The body of the decision, called the ratio decidendi, is not
the part of the judgment that is subject to execution but the
fallo because it is the latter which constitutes the judgment of
the court.
As jurisprudence instructs: "The operative part in every
judgment is the dispositive portion or the fallo" (Santos Yllana
Realty Corporation v. Deang, G.R. No. 190043, June 21, 2017).
 '520 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
2. The general rule is that where there is a conflict
between the dispositive portion or fallo of the decision and
the body of the decision, the fallo controls. This rule rests on
the theory that the fallo is the final order while the opinion
in the body is merely a statement ordering nothing. However,
where the .inevitable conclusion.from the body of the decision
is so clegfthat there was a m�i;� mistake in the dispg.sitive
portion, the body of the decision. will prevail (United Coconut
Chemicals, Inc. v. Valmores, C.R. No. 201018, July 12,.2017).
Ambiguity in the judgment; 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.
Resolutions of the Supreme Court
1. Resolutions of the Supreme Court, denying petitions
to review decisions of the Court of Appeals, are not "decisions"
within the purview of the Constitution. Accordingly, a petition
to review the decision of the Court of Appeals is not a matter
of right, but of sound judicial discretion; and so, there is no
need to folly explain the Court's denial (Novino v. Court of
Appeals, 8 SCRA 279, 280).
2. Minute resolutions are, likewise, not decisions
falling within the constitutional requirement (Commercial
Union Assurance Company, Ltd. v. Lepanto Consolidated
Mining Company, 86 SCRA 79, 8�, citing Novin9 v. Court of
Appeals, 8 SCRA 279).
3. When a minute resolution is issued by the Supreme
Court denying or dismissing a petition or a motion for
reconsideration for lack of merit, it is understood that the
challenged decision or order, together with all its findings of
fact and legal conclusions, are deemed sustained (Complaint
of Arrienda Against Justices Puno, Kapunan, Pardo, Ynares­
S'antiago, et al., 460 SCRA 1, 13-14).
CHAPTER VIII 521
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
In the case cited, the complainant alleges that the
disposition of his various motions and pleadings through
minute resolutions amounted to a deprivation of due process.
The Court held that "it is not duty-bound to issue decisions or
resolutions signed by the justices all the time. It has ample
discretion to formulate ponencias, extended resolutions or
even minute resobJ.tions, depending on . its evaluation of a
case as long as a l�g�l basis exists. When �i:'minute resolution
(signed by the Clerk of Court upon orders of the Court) denies
or dismisses a petition or a motion for reconsideration for lack
of merit, it is understood that the challenged decision or order,
together with all its findings of fact and legal conclusions, are
deemed sustained."
Interlocutory orders
1. An interlocutory order is one which does not finally
dispose of the case, and 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
(Gabriel v. Cebrero, G.R. No. 222737, November 12, 2018).
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 (Rudecon. Management Corporation ·
v. Singson, 454 SCRA 612, 627-628). They only determine
incidental matters that do not touch on the merits of the
case or put an end to the proceedings (Silverio, Jr. v. Filipino
Business Consultants, Inc., 466 SCRA 584, 595).
Examples: An order denying a motion to dismiss, an
order granting an extension of time to file a pleading, or one
authorizing an amendment thereof, or granting or denying
applications for postponement or inspection of documents, are
interlocutory orders.
2. Interlocutory orders are not decisions or judgments
within the constitutional definition. It was, thus, held that
judgments, as referred to in Sec. 1 of Rule 36, do not include

522 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
resolutions which are interlocutory orders (Amargo u. Court of
Appeals, 53 SCRA 64, 68).
Questioning interlocutory orders
The proper remedy to question an improvide�t
interlocutory order is a petition for certiorari under Rule 65,
not :g�le 45. A petition for ifview under Rule 45 i$l.:the proper
mode of redress to question Only final judgments (Silverio, Jr.
u. Filipino Business Consultants, 466 SCRA 584, .594). 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 (Rudecon
Management Corporation u. Singson, 454 SCRA 612, 629).
Under Sec. l[b] of Rule 41 of the Rules of Court, it is clear
that interlocutory orders are not appealable.
IViemorandum decisions (Bar 2012)
1. 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 law 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 (See Francisco u. Permskul, G.R. No. 81006, May
12, 1989).
2. Although a memorandum decision is permitted under
certain conditions, it cannot merely refer to the conclusions of
law of the lower court. The appellate court must make full
findings of fact and conclusions of law on its own (Ong Chia
Kwan u. Court of Appeals, 345 SCRf.l.. 586, 589-590).
CHAPTER VIII 523
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
3. 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 0£ a valid judgment
will not be transgressed (Oil and Natural Gas Commission u.
._
Court of Appea,fs; G.R. No. 114323, July 23, 1998).
4. Mem�i-andum decisions ar/l�thorized by B.P. 12:�-·
and Rule 51 ofthe Rules ofCourt. Both provide: "Every decisio:n
or final resolution of a court in appealed cases shall clea.rly
and distinctly state the findings of facts and the conclusions
of law on which it is based, which may be contained in the
decision or final resolution itself, or adopted by reference from
those set forth in the decision, order, or resolution appealed
from" (Sec. 40, B.P. 129; Sec. 5, Rule 51, Rules of Court).
Meaning of rendition of judgment
1. Rendition of a 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.
The Supreme Court stated the rule in this wise:
"The mere pronouncement of the judgment in open
court with the stenographer taking note thereof do.es not
XXX constitute a rendition of judgment. It is the filing of
the signed decision with the clerk of court that constitutes
rendition" (Ago u. Court of Appeals, 6 SCRA 530, 534).
2. A later case confirmed that it is not the writing or
signing of the judgment which constitutes rendition of the
judgment. This case declared that the rule is well-established
that the filing of the decision, judgment or order with the
clerk of court, not the date of the writing of the decision or
judgment, nor the signing or even the promulgation thereof,
that constitutes rendition (Castro u. Malazo, 99 SCRA 164,
170).
524 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Period within which to render a decision
1. All cases filed must be decided or resolved by the
Supreme Court within 24 months from the date of the.ir
submission for decision, and unless reduced by the Supreme
Court, within 12 months for all .lower collegiate courts and
tl:iree months for all other lower courts (Ar�.. YIII, Sec. 15,
·Q6nstitution of the Philippines). :.::/·
2. A case is deemed submitted for resolution upon the
filing of the last pleadii:ig, brief or memorandum required by
the Rules of Court or by the court (Ibid.). ripe for judgment
3. 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 c9nsidered 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 (Re: Report on the
Judicial Audit of RTC Brs. 29 and 59, Toledo City, 292 SCRA
8, 21-22).
4. 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 (Plata u. Torres, 570 SCRA 12,
17-18).
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 cases is tantamount to gross inefficiency on the
part of the judge (Arap u. Jvlustafa, 379 SCRA 1, 4-5).
CHAPTER VIII 525
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
Judgment penned by a judge who did not hear the evidence
1. 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 tq _continue and finish th.l?JriaL The succeeding judge
can exam{lie and evaluate the ,.evidence already preil�iited
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 (People u, Tumaru, 319
SCRA 515, 528). Such reliance does not violate substantive
and procedural due process (Serna u. Court of Appeals, 308
SCRA 527, 533). 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 (Sandoual Shipyards, Inc. and Rimport Industries,
Inc. u. Philippine Merchant Marine Academy [PMMA], C.R.
No. 188633, April 10, 2013).
2. The validity of a judgment is not rendered erroneous
solely because the judge who heard the case was not the same
judge who rendered the decision. In fact, it' is not necessary
for the validity of a judgment that the judge who penned the
decision should actually hear the case in its entirety, for he
can merely rely on the transcribed stenographic notes taken
during the trial as the basis for his decision (Kummer u.
People, C.R. No. 174461, September 11, 2013).
3. What deserves stressing is that, in this jurisdiction,
there exists a disputable presumption that the RTC decision
was rendered by the judge in the regular performance_ of his
official duties. While the said presumption is only disputable,
it is satisfactory unless contradicted or overcame by other
evidence. Encompassed in this presumption of regularity is
the presumption that the RTC judge, in resolving the case and
drafting his decision, reviewed, evaluated, and weighed all the
evidence on record. That the said RTC judge is not the same
judge who heard the case and received the evidence is of little
consequence when the records and transcripts of stenographic
 526 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
notes are complete and available for consideration by the
former (Citibank,N.A. v. Sabeniano,504 SCRA 378,412).
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 pennet' 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 (Nazareno v. Court of Appeals, 378
· SCRA 28, 34-35). In other words, he had lost entirely his
power and authority to act on all cases assigned to him prior
to his retirement (City of Taguig v. City of Makati, G.R. No.
208393,June 15, 2016).
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 (Valentin v. Sta. Maria, 55 SCRA 40). 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 �f equal jurisdiction 1s considered an incumbent judge,
albeit assigned to a different branch at the time the decision
was promi1lgated (Marchadesch v. Vda. de Yepes, 442 SCRA
254,262).
Judgments of _the Supreme c;;ourt; precedents
1. The decisions of the Supreme Court form part of the
legal system (Peltan Development, Inc. v. Court of Appeals,
270 SCRA 82,92). 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 (Heirs of Felicidad Canque v. Court of
Appeals, 275 SCRA 741, 749).
CHAPTER VIII 527
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
2. It is the duty of 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_ofre Supreme Court from whose decisions all other courts
,
should take their bearing; ,. (Manila Electric Company v.
Philippine Consumers Foun.dation, Inc., 374 SCRA 262, 277;
Mallari v. Arcega,379 SCRA 537, 550).
3. Judgments or decisions of the Supreme Court serve
as precedents. The Court defines a "precedent" as "[A] judicial
decision that serves as a rule for future determination in
similar or substantially similar cases. Thus, the facts and
circumstances between the jurisprudence relied upon and the
pending controversy should not diverge on material points"
(Pilipinas Shell Petroleum Corporation v. Commissioner of
Customs,G.R. No. 195876,June 19,2017).
Rule on stare decisis; applies only to Supreme Court
decisions
1. The rule of stare decisis is entrenched in Art. 8 of
the Civil Code of the Philippines which provides: "Judicial
decisions applying or interpreting the laws or the Constitution
shall form part of the legal system of the Philippines."
Otherwise called the principle of stare decisis et non
quieta movere,it holds that a point of law, once established by
the Court, will generally be followed by the same court and by
all courts of lower rank in subsequent cases involving a similar
legal issue (Cabigon v. Pepsi-Cola Products,Philippines,Inc.,
541 SCRA 149,156-157; See also Republic v. Rosario,G.R. No.
186635, January 27,2016; De la Cruz v. Ochoa,Jr., G.R. No.
219683, January 23, 2018).
2. "The doctrine enjoins adherence to judicial prece••
dents 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 ca,ses
528 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
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"
(Umali v. Judicial and Bar Council, G.R. No. 228628, July
25, 2017). It simply means that for the sake of certainty, a
· conclusion reached in one case should be applied to those that
follow if thel,facts are substantially;,.,the same, even thm_fah
the parties n:i:ay be different. It pidceeds from the principle
of justice that, absent any countervailing considerations,
like cases should be decided alike (University of the East u.
Masangkay, G.R. No. 226727, April 15, 2018; See also, Revilla,
Jr. v. Sandiganbayan [First Division], July 24, 2018).
3. 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 (United Coconut Planters Bank v. Spouses Uy, G.R.
No. 204039, January 10, 2018).
Pro hac vice rulings
There are instances, when the Court suspends the
application of a rule in a particular case, as when it allows
a second motion for reconsideration contrary to the rule that
forbids a second motion filed by the same party (See Sec. 5[2nd
paragraph}, Rule 37, and Sec. 2, Rule 52, Rules of Court) or
when it allows a party to file a notice of appeal beyond the
period allowed by the Rules (Sec. 3, Rule 41, and Sec. 2, Rule
40, Rules of Court). A ruling of such nature is deemed to be
made pro hac vice, a Latin term which refers to one rendered
"for this one particular case." A ruling expressly qualified as
such cannot be relied upon as a precedent to govern other cases
(Tadeja v. People, 691 SCRA 252, 267, February 20, 2013).
Pr-a hac vice is a Latin term meaning "for this one particular
occasion only." A pro hac vice ruling cannot be relied upon
as a precedent to govern other cases (Highpoint Development
Corporation v. Republic, G.R. No. 224389, Noueniber 7, 2018).
CHAPTER VIII 5?9
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
The principles of stare decisis and res judicata com­
pared
The Court has emphasized the distinction between the
principle of stare decisis and the principle of res judicata.
Accordingly, while the focal point of res judicata is. the
judgment, the focal point of stare decisis is the doctrine
. created.
. .
::;:;_:. The Court explains\
"The focal point of res judicata is the.judgment:
The principle states that a judgment on the merits in a
previous case rendered by a court of competent jurisdiction
would bind a subsequent case if, between the first and
second actions, there exists an identity of parties, of
subject matter, and of causes of action xx x.
The focal point of stare decisis is the doctrine
created. The principle xxx, evokes the general rule that,
for the sake of certainty, a conclusion reached in one case
should be doctrinally applied to those that follow if the
facts are substantially the same, even though the parties
may be different. It proceeds from the first principle of
justice that absent any powerful countervailing
considerations. like cases ought to be decided alike.
Thus, where the same questions relating to the same
event have been put forward by the parties similarly
situated as in a previous case litigated and decided by a
competent court, the rule of stare decisis is. a bar to .any
attempt to re-litigate the same issue" (Belgica v. Ochoa,
G.R. No. 208566, November 19, 2013; Social Justice
Society v. Drilon, G.R. No. 208493, November 15, 2013;
Nepomuceno v. Aquino III, G.R. No. 209251, November
19, 2013; emphasis made by the Court).
Obiter dictum
1. An obiter dictum is an opinion expressed by a court,
which is not necessary to the determination of the case before
it (Delta Motors v. Court of Appeals, 276 SCRA 212, 223; Land
Bank of the Philippines v. Santos, G.R. No. 213863, January
27, 2016). It is neither enforceable as a relief nor a source of
a judicially-actionable claim (Republic v. Nolasco, 457 SCRA
400, 408).
530 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
2. "x x x It is a remark made, or opinion expressed by a
judge in his decision upon a cause x x x that is, incidentally or
collaterally, and not directly upon the question before him, or
upon a point not necessarily involved in the determination of
the cause, or introduced by way of illustration, or analogy or
argument.Such is riot binding as a precedent" (Italics supp/ied;
Villanuev�ic<t). Court of Appeals, '879 SCRA 463, 463-469} see
for furthe?teadings Ayala Corpi/P-.'ation v. Rosa-Diana R�alty,
346 SCRA 663; Ocean East Agency Corporation v. Lopez, G.R.
No. 194410, October 14, 2015).
When a judgment becomes final
1. 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 (Rudecon
Management Corporation v. Singson, 454 SCRA 612, 628).
The finality of a judgment in this sense has the effect of
ending the litigation, and an aggrieved party may then appeal
from the judgment. Under Rule 41 (Sec. 1) of the Rules of
Court, 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 (Sec. l[b],
Rule 41, Rules of Court).
2. 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 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."
3. "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.
CHAPTER VIII 531
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
Conversely, an interlocutory order does not dispose of the
case completely but leaves something to be decided upon
by the court. 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"
(Republic v. Heirs of Oribello, Jr., 692 SCRA 645, 654, March
6, 2013; See also Igriacio
'• v. Reyes, G.R. �O;
.. 213192, July 12,
�1�
4. The distiµction is important bec::ause a final order,
that completely disposes of a case, is appealable (Sec. 1, Rule
41) while an interlocutory order is not appealable (Sec. l[b],
. Rule 41, Rules of Court; For further readings, see also Ignacio
v. Reyes, G.R. No. 213192, July 12, 2017).
Effect of final judgments; res judicata
1. When a court of the Philippines has rendered
judgment with jurisdiction, the following are the effects of its
judgment or final order:
(a) If the judgment or final order is on a specific
thing, the same is conclusive upon the title to thing (Sec.
47, Rule 39, Rules of Court).
(b) If the judgment or final order is in respect to
the probate of a will, or the administration of the estate of
a deceased person, the same is conclusive upon the will
or administration but the probate of the will or granting
of letters of administration shall only be prima facie
evidence of the death of the testator or intestate, and
not a conclusive presumption of death (Sec. 47, Rule 39,
Rules of Court).
(c) If the judgment or final order is 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 condition,
status or relationship of the person (Sec. 47, Rule 39,
Rules of Court).
(d) In other cases, if the judgment be with respect
. to the matter directly adjudged or as to any other matter
 532 _CIVIL PROCEDURE, VOLUM;E I
THE BAR LECTURES SERIES
that could have been raised in relation thereto, the
judgment or final order is 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 the same capacity (Sec. 47, Rule 39, Rules of Court).·
(e) In any other litigation between the sa.me parties
or·. their successors in 1nterest, that only is deemed to
be adjudged in a former judgment or final order which
appears upon its face to have been adjudged, or which was
actually and necessarily included therein or necessary
thereto (Sec. 47, Rule 39, Rules of Court; See also Heirs of
Sotto v. Palicte, G.R. No. 159691, June 13, 2013).
2. When it is a foreign court or tribunal which renders
a judgment that has become final, and it has jurisdiction to
render such judgment or final order, the same is conclusive
upon the title to the thing in case of a judgment or final order
upon a specific thing.
In case of a final order or judgment against a person,
such judgment or final order is presumptive evidence of a
right between the parties and their successors in interest by a
subsequent title. Bar 2007
. In either of the above cases, the judgment or final order
may be repelled by evidence of (a) want of jurisdiction, (b)
want of notice to the party, (c) collusion, (d) fraud, or (e) clear
mistake of law or fact (Sec. 48, Rule 39, Rules of Court). Bar
2007
a. Philippine courts have recognized foreign
divorces between a Filipino and a foreign citizen if they
are successfully proven under the Rules on Evidence. The
recognition of a foreign divorce decree does not involve the
extended procedure under A.M. No. 02-11-10-SC (Rule
on Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages) or the rules on
ordinary trial. While the Philippines does not have a
divorce law, Philippine courts may, however, recognize a
CHAPTER VIII 533
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
foreign divorce decree under the second paragraph of Art.
26 of the Family Code, to capacitate a Filipino citizen to
remarry when his or her foreign spouse obtained a divorce
decree abroad (Fujiki v. Marinay, G.R. No. 196049, June .
26, 2013).
Fujiki v. Marinay, likewise, explains that the
second pJiragraph of Art. 26 of{lie Family Code "is 017:ly .
a corrective measure to address the anomaly that results
from a marriage between a Filipino, whose laws do riot
allow divorce, and a foreign citizen, whose laws allow
divorce. The anomaly consists in the Filipino spouse
being tied to the marriage while the foreign spouse is
free to marry under the laws of his or her country. The
correction is made by extending in the Philippines the
effect of the foreign divorce decree, which is already
effective in the country where it was· rendered."
Note: The second paragraph of Art. 26 of the Family
Code provides: ''When a marriage between a Filipino
citizen and a foreigner is validly celebrated and a divorc
is thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spous
shall, likewise, have the capacity to remarry under
Philippine law."
b. Foreign arbitral awards may be enforced under
R.A. 9285, or the Alternative Dispute Resolution Act of
2004. The award when confirmed by the RTC shall be
enforced in the same manner as final and executory
decisions of courts of law of the Philippines (Sec. 44, R.A.
9285). Bar 2007
Amendment of judgment; supplemental judgment
1. A judgment may be amended by the court before the
judgment becomes final and executory. For instance, under
Sec. 3, of Rule 37, if the court finds that excessive damages have
been awarded or that the judgment or final order is contrary
to the evidence or the law, it may amend such judgment or
. final order accordingly.
534 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
2. An amended judgment, however, should not be
confused with a supplemental judgment. "x x x The amended
decision x x x is an entirely new decision which supersedes or
takes the place of the original decision. On the other hand, a
supplemental decision does not take the place of the original;
it only serve·s to add to the original decision" (Solidbdnk
Corporation v. Court of A..ppeals, G.R. No. 16658;1, December
.. _,, •.'·
7, 2015).
Doctrine of immutability of judgments (Bar 2011)
1. 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 (Multinational Village Homeowners' Association v.
Gacutan, G.R. No. 188307, August 2, 2017; See also Mercury
Drug Corporation v. Huang, G.R. No. 197654, August 30,
2017). 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 easily brushed aside, but a matter
of public policy as well as a time-honored procedural policy
(Lanto u. Commission on Audit, G.R. No. 217189, April 18,
2017).
2. 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, chalJenge
the judgment without running afoul of the doctrine of
immutability of judgments. A direct attack may be brought
either through a petition for annulment of judgment under
Rule 47 of the Rules of court or through a petition for certiorari
under Rule 65 of the Rules of Court. A void judgment may also
be challenged collaterally by assailing its validity in another
action where it is invoked (See Nlercury Drug Corporation
v. Huang, G.R. No. 197654, August 30, 2017; For further
CHAPTER VIII 535
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
readings, see Orlina v. Ventura, G.R. No. 227033, December 3,
2018).
Reasons for the rule on immutability of judgments
1. The doctrine. is founded on considerations of public
policy and sqund practice that, at the risk of occasional errors,
judgments :i!ilta.11 become final at �bme definite point irntifne
(Multinational Village Homeowndts' Association V. Gadutan,
G.R. No. j88307, August 2, 2017; See also Mercury Drug
Corporation v. Huang, G.R. No. 197654, August 30, 2017).
2. Specifically, the doctrine of immutability or
inalterability of final judgments has a two-fold purpose, to wit:
(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 courts
exist. Controversies cannot drag on indefinitely. The
rights and obligations of every litigant must not hang in
suspense for an indefinite period of time. This doctrine is
not a mere technicality to be easily brushed aside, but a
matter of public policy as well as a time-honored principle
of procedural law (Marcos u. Pamintuan, 639 SCRA 658,
665; Sangguniang Barangay of Pangasugan, Baybay,
Leyte u. Exploration Permit Application of Philippine
National Oil Company, September 2, 2013; Lanto v.
Commission on Audit, G.R. No. 217189, April 18, 2017).
Remedies against a final and executory judgment; exception,s
to the doctrine of immutability of judgments
1. Although as a rule, a final and executory judgment
can no longer be altered, the doctrine of immutability of a
judgment does not preclude an action for annulment of the
same judgment (Ride 47, Rules of Court; See also Diana v.
Balangue, 688 SCRA 22, 34, January 7, 2013).
2. The court may also suspend the strict adherence
to the doctrine under certain circumstances pursuant to its
536 CML PROCEDURE,VOLUME I
THE BAR LECTURES SERIES
power to suspend procedural rules (Lanto u. Commission on
Audit, G.R. No. 217189, April 18, 2017).
The Supreme Court, in the past, has reversed judgments
and recalled their entries in the interest of substantial justice
and where special and compelling reasons called for such
actions (Apo Fruits Corporation v. Land Bank of the Philippines,
632 SCRA 727, r&q�761). In Apo Fruitt;FCorporation, the
Court declared that, in certain cases, it had reversed its own
judgment on a second motion forreconsid�ration and even on
a third motion for reconsideration. In some cases, it recalled
the entries of judgment after finding that doing so was in
the interest of justice. In order to serve substantial justice
considering (a) matters of life, liberty, honor or property, (b)
the existence of special or compelling circumstances; (c) the
merits of the case; (d) a cause not entirely attributable to the
fault or negligence of the party favored by the suspension of
the rules; (e) a lack of any showing that the review sought is
merely frivolous and dilatory; and (f) the other party will not
be unjustly prejudiced thereby.
3. Despite the doctrine of immutability of judgments,
certain changes in such judgment may also be effected for any
of the following reasons:
(a) the correction of clerical errors (Ram's Studio
and Photographic Equipment, Inc. u. · Court of Appeals,
346 SCRA 691, 697; Briones-Vasquez u. Court ofAppeals,
450 SCRA 482, 491; Filipinas Palmoil Processing, Inc. u.
Dejapa, 641 SCRA 572, 581, February 7, 2011; See also
Mercury Drug Corporation v. Huang, G.R. No. 197654,
August 30, 2017).
(b) the so-called nunc pro tune entries which cause
no prejudice to any party (Briones- Vasquez v. Court of
A.ppeals, ibid.; Salting u. Velez, 639 SCRA 124, 131; See
also Multinational Village Homeowners' Association u.
Gacuian, G.R. iVo. 188307, August 2, 2017).
(c) whenever circumstances transpire after the
finality of the decision rendering its execution unjust and
CHAPTER VIII 537
TRIAL, DEMURRER TO EVIDENCE, AND'JUDGMENT
inequitable (Apo Fruits Corporation u. Land Bank of the
Philippines, 647 SCRA 207, 236).
(d) in cases of special and exceptional nature as
when facts and circumstances transpire which render the
judgment's .execution impossible CJr unjust, when neces­
sa:ry in the interest of justice to direct its modification to·
harmonize the dfopositi9h with prevailing circiir,nstances
(Industrial Timber Corporation u. Ababon, :480 SCRA
i71, 181-182, citing Industrial Timber Corpdration v.
NLRC, 233 SCRA 597; Lanto v. Commission on Audit,
G.R. No. 217189, April 18, 2017).
(e) in case of void judgments (Apo Fruits Corpora­
tion u. Land Bank of the Philippines, 647 SCRA 207, 236;
Filipinas Palmoil Processing, Inc. u. Dejapa, supra).
(f) when there is a strong showing that a grav
injustice would result from the application of the Rules
:
(Almuete v. People, 693 SCRA 167, 185, March 1 2, 2013;
For further readings, see Abrigo v. Flores, G.R. No.
160786, June 17, 2013).
(g) when there are grounds for annulment of th
judgment or a petition for relief (Gochan v. Mancao, G.R.
No. 182314, November 13, 2013).
· (h) in criminal cases, when a law, like R.A. 10951,
is enacted reducing the penalties for certain crimes, the
entry of judgment may be recalled in order to impose the
new penalty mandated (In Re: Correction/ Adjustment
of Penalty Pursuant to R.A. 10951, in relation to Hernan
u. Sandiganbayan, G.R. No. 237721, July 31, 2018; For
additional -readings, see Orlina v. Ventura, G.R. No.
227033, December 3, 2018).
4. When there is an ambiguity caused by an omission
or a mistake in the dispositive portion of the decision, the
Court may clarify such an ambiguity by an amendment even
after the judgment has become final (Multinational Village
Homeowners' Association, Inc. v. Gawtan, G.R. No. 188307,
August 2, 2017).
 538 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Meaning of "judgment on the merits"
l. 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 reaJor substantial groun�� of action or defense;
as contrasted with some technical or cbllateral 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. Thus, where the court, for
example, ruled on the right of the petitioner to foreclose the
property, that the debtor was in default and that the foreclosure
was valid by looking into the law and the facts and pleadings
and applied the law accordingly, the judgment settled the
controversy between the parties (Luzon Development Bank v.
Conquilla, 470 SCRA 533, 544-549).
2. It has been held, however, that a judgment
dismissing an action for want of jurisdiction cannot operate
as res judicata on the merits (Ciistodio v. Corrado, 435 SCRA
500, 509). Also, where the dismissal was on the ground of the
failure of the petitioner to furnish a copy of her formal offer
of evidence, the decision does not constitute an adjudication
on the merits, but only a resolution of an interlocutory matter
(Page-Tenorio v. Tenorio, 443 SCRA 560, 569).
Doctrine o·? law of the case
According to this principle, 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
CHAPTER VIII 539
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
the facts of the case before the court. This principle generally
finds application in cases where an appellate court passes on
a question and remands the case to the lower court for further
proceedings. The question there settled becomes the law of
the case upon subsequent appeal. Consequently, the court
reviewing the succeeding appeal will not relitigate the ease
but; ,instead, apply the rµling in the previous,:appeal. This
enables the appellate courtto 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 and upon any and subsequent appeal (See RCPI
v. Court of Appeals, 488 SCRA 306; Samson v. Cabaiias, 461
SCRA 545; Guevara v. BPI Securities Corporation, 498 SCRA
613; Mercury Group of Companies v. Home Development
Mutual Fund, 541 SCRA 211; Yap v. Siao, G.R. No. 212493,
June 1, 2016; Virata v. Ng Wee, G.R. No. 221135, July 5, 2017;
see Philtranco Service Enterprises, Inc. v. Cual, G.R. No.
207684, July 17, 2017).
The principle relates merely to questions of law already
settled on appeal and is confined in its operation to subsequent
proceedings in the same case, not questions of fact. It will not
apply when the case is not a continuation of the first case in
which the question of law was determined (See Philtranco
Service Enterprises, Inc. v. Cual, G.R. No. 207684, July 17,
2017). Thus, where the appellate w�irt has already ruled
with finality that the legal relationship between the parties
is one of seller and buyer, instead of donor and donee, such
ruling becomes the law of the case even if, later on, the case is
remanded to a lower court for further proceedings. The ruling
on appeal has become res judicata between the parties.
Several judgment
l. A several judgment is one rendered by a court
against one or more defendants, but not against all, leaving
the action to proceed against the others (Sec. 4, Rule 36, Rules
of Court).
2. A several judgment is proper when the liability of
each party is clearly separable and distinct from that of his co-
 540, CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
parties, such that the claims against each of them could have
been the subject of separate suits, and judgment for or against
one of them will not necessarily affect the other (Fernando
v. Santamaria, 446 SCRA 136, 142). Debtors under a joint
obligation have distinct and separable interests. In a joint
obligation, the credit or debt is divided irito as many equal
shares as there are creditors and debtors, the credits or debts
· <Judgment nunc pro tune (literally, "now for then') (Bar 2012;
being distihct from one anothe:tf (Art. 1208, Civil Code' of. the
Philippines). Where debtors are bound to an obligation jointly,
it is legally feasible for a court to render a several judgment.
Separate judgment
A separate judgment presupposes that there are several
claims for relief presented in a single action. Aside from
the original complaint, for instance, the defendant may
have interposed a counterclaim, cross-claim, or third-party
complaint. The court may, after determining the issues
relative to a claim and considering other circumstances,
render separate judgment, let us say, on the cross-claim or
the counterclaim. The judgment will terminate the action
with respect to that claim and the action shall proceed as
to the remaining claims. Despite the rendition of a separate
judgment, the court may stay the execution of the separate
judgment until the rendition of a judgment on all the other
claims (Sec. 5, Rule 36, Rules of Court).
Conditional judgment
A conditional judgment is one the effectivity of which
depends upon the occurrence or the non-occurrence of an
event. Such a judgment is generally void because of the
absence of a disposition (Cu-Unjieng v. Mabalacat Sugar Co.,
70 Phil. 384).
Judgment sin perjuicio
1. A judgment sin perjuicio is traditionally understood
to be a brief judgment containing only the dispositive portion,
without prejudice to the making of a more extensive discus­
sion of the findings of fact and law to support it. This is not
CHAPTER VIII 541
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
actually a final decision; it should be avoided and should not
be looked with favor (Director of Lands v. Sanz, 45 Phil. 117).
2. Its current use may also refer to a dismissal of an
action without prejudice to its being refiled on a later date as
in a dismissal in Sec. 1 of Rule 1 7 and Sec. 5 of Rule 7.
2014)
''., . •·· .
l. "Nunc pro ·tune" is a Latin phrase that means "now
for then." A judgment nunc pro tune is made to enter into the
record an act previously done by the court, which had been
omitted either through inadvertence or mistake. It neither
operates to correct judicial errors nor to supply omitted action
by the court. Its sole purpose is to make a present record of
a judicial action which has actually been taken. A judgment
nunc pro tune is one intended to enter into the record acts
which had already been done,O but which do not yet appear
in the record. Parties seeking the issuance of nunc pro tune
judgments or orders must allege and prove that the court took
a particular action and that the action was omitted through
inadvertence (Mercury Drug Corporation v. Huang, G.R. No.
197654, August 30, 2017).
2. One case explains that the object of a nunc pro
tune judgment is to place in proper form on the record those
matters previously rendered to make the record speak the
truth and to reflect deliberations and discussions had on the
issue. In a sense, it is a correction of clerical and not a judicial
error (Commissioner of Internal Revenue v. Fortune Tobacco
Corporation, G.R. Nos. 167274-75, September 11, 2013; For
further readings, see Magno v. Magno, G.R. No. 206451,
August 17, 2016).
,Judgment upon a compromise (Bar 1996; 2012)
1. 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 (Diamond Builders
Conglomeration v. Country Bankers Corp., 540 SCRA 194).

, 542 CIVIL PROCEDURE, VOLUME I.
THE BAR LECTURES SERIES
2. 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." A compromise is a form of amicable
settlement that is not only allowed but also encouraged in civil
cases (Harold v. A[iba, 534 SCRA 478, 486). A compromise has ·
upon the parties the effect of tes:judicata (Cathay La71:d, Inc.,
v. Ayal&Land, Inc., G.R. No. 210209, August 9, 2017): ln fact,
there is no justification to disallow a compromise agreement,
solely because it was entered. into after final judgment (SM
Systems Corporation (formerly Springsun Management
Systems Corporation v. Camerino, G.R. No. G.R. No. 178591,
Marcy 29, 2017).
Once it has received a judicial imprimatur, it is regarded
as a determination of the controversy between the parties and
has the force and effect of a final judgment (Chiquita Brands,
Inc., v. Omelia, G.R. No. 189102, June 7, 2017). Recall that
under the principle of res judicata, an issue which had already
been laid to rest by the parties themselves can no longer be
relitigated. Under the Civil Code, if one of the parties refuses
to abide by the compromise, the other party may either enforce
the compromise or regard it as rescinded and insist upon his
original demand (Art. 2041, Civil Code of the Philippines).
_3. Substantive law does. not require a court order.for
the compromise agreement to have to have a resjudicata effect
between the parties.' However, the compromise agreement
cannot be executed without the agreement being converted
into a judicial compromise.
Jurisprudence explains the effect of a compromise, thus:
"x x x It has the effect of res judicata between
the parties, but there shall be no execution except in
compliance with a judicial order.
"It is settled that once a compromise agreement is
approved by a final order of the court, it transcends its
identity as a mere contract binding only upon the parties
thereto, as it becomes a judgment subject to execution in
accordance with the Rules of [C]ourt. Judges, therefore,
CHAPTER VIII 543
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
have the ministerial and mandatory duty to implement
and enforce it.
"Since the issuance ofa writ ofexecution implementing
a judicial compromise is ministerial in nature, it cannot
be viewed as a judgment on the merits as contemplated
· by Section 14, Article VIII of the Constitution. To be clear,
it is the decision' based on a compromise agreement that
•P
is consideredl'a::'judgment on the merit�', not the order � .. 1
'.;tr,
pertaining to its execution" (Cathay Land, Inc. v. Ayala I
Land, Inc., G.R.No. 210209, August 9, 2017).
4. To assail a judgment by compromise, there must
be a proper motion to set aside the judgment on the ground
that the compromise agreement was obtained either by fraud,
violence, intimidation, falsity of documents, or some other vices
of consent (Cadano v. Cadano, G.R. No. L-34998, January 11,
1973; See also Art. 2038, Civil Code of the Philippines).
There is jurisprudence holding that, if such motion
is denied, appeal may be taken from the order denying the
motion (Serrano v. Reyes, G.R. No. L-16153, December 29,
1960 citing De los Reyes v. Ugarte, 75 Phil. 505; Enriquez v.
Padilla, 77 Phil. 373; Salvador v. Ortoll, 343 SCRA 658, 668).
This ruling must be deemed superseded or modified by Sec.
l(d) of Rule 41, which declares as non-appealable an order
denying a motion to set aside a judgment by x x x C(!mpromise
on the ground of fraud, mistake or duress, or any other ground
vitiating consent.
5. The doctrine of immutability of judgments also
applies to compromise agreements approved by the court in
_ the same manner that it applies to judgments that have been
rendered on the basis of a full-blown trial (Chiquita Brands,
Inc. v. Omelia, G.R. No. 189102, June 7, 2017).
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.

544 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
D. JUDGMENT ON THE PLEADINGS
(Bar 1978; 1993; 1999; 2014; 2015; 2016)
Nature of judgment on the pleadings
1. "Judgment on the pleadings is appropriate when an
answer to a claim fails to tender an issue, or otherwise admits
th� '.material allegation$\Of the adverse party'.§ pleading.
Jurisprudence dictates that an answer fails to tender an issue,
if it-does not comply with therequirements of a specific denial as
set out in Secs. 8 and 10, Rule 8 of the Rules of Court, resulting
in the admission of the material allegations of the adverse
party's pleadings. As such, it is a judgment that is exclusively
based on the submitted pleadings, without the introduction of
evidence as the factual issue remains uncontroverted" (GSIS
v. Prudential Guarantee and Assurance, Inc., G.R. No. 165585,
November 20, 2013).
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 (Fernando
Medical Enterprises, Inc. v. Wesleyan University Philippines,
Inc., G.R. No. 207970, January 20, 2016).
2. 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 fails to tender an
issue or admits the material allegations of the adverse party's
pleading (See Sec. 1, Rule 34, Rules of Court). Bar 1999
Motion required; resolving the motion
1. A judgment on the pleadings cannot be ·rendered by
the court motu proprio. It can be done only where there is a
prior motion to the effect filed by the claiming party (See Sec.
1, Rule 34, Rules of Court). Bar 1999
2. The essential query in resolving a motion for
judgment on the pleadings is whether or not there are issues
of fact generated by the pleadings. Whether issues of fact exist
in a case or not depends on how the defending party's answer
CHAPTERVlII 545
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
has dealt with the ultimate alleged in the complaint. If the
defendant admits all the ultimate facts in the complaint,
then such facts, being undisputed, will no longer require
evidence. Hence, upon proper motion, the court may be asked
to render a judgment based on the pleadings. A trial, in this
· case, is dispensed with (Fernando Medical Enterprises, Inc. v.
Wesleyan Unjl{ersity Philippines, I7r9-, 1 supra).
Cases where judgment on the plea�ings will not apply
1. In the following cases, a judgment on the pleadings
will not lie:
(a) actions for the declaration of nullity of a
marriage;
(b) actions for annulment of marriage; and
(c) actions for legal separation (Sec. 1, Rule 34,
Rules of Court).
2. In the above cases, the material facts alleged in the
complaint shall always be proved (Sec. 1, Rule 34, Rules of
Court).
E. SUMMARY JUDGMENT
Nature of summary judgment (B�r 1986; 1989; 1996; 1999;
2014;2015;2016) .
1. A summary judgment, also called accelerated
judgment, 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 (Ley
-
Construction and Development Corporation v. Union Banh of
the Philippines, 334 SCRA 443; Raboca v. Velez, 341 SCRA
543). Bar 1986; 1989; 1996; 1999; 2014; 2015; 2016
A summary judgment is permitted only if there is no
genuine issue as to any material fact and a moving party is
entitled to a judgment as a matter of law because while the
pleadings, on their face, appear to raise iss,ues, the affidavits,
 546 CIVIL PROCEDURE, :VOLUME I
THE BAR LECTURES SERIES
depositions, and admissions presented by the moving party
do not actually present genuine issues (Yap v. Siao, G.R.
No. 212493, June 1, 2016; See also Pilipinas Shell Petroleum
Corporation v. Commissioner of Customs, G.R. No. 195876,
December 5, 2016).
. 2. What trigger� a summary judgmen� is the absence
:.:\of a genuine factuaLissue. It is not proper:'where there are
· factual issues to be re�olved by the presenfation 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
(Velasco v. Court of Appeals, 329 SCRA 392; Garcia v. Court
of Appeals, 336 SCRA 475).
3. In an action for foreclosure of mortgage, for example,
the material issues are the existence of the debt and its
demandability. When the defendant admits the existence
of the debt and raises an issue as to the demandability of
the debt or the interest rate involved because of an alleged
contemporaneous agreement between the parties, the issue
tendered is sham, fictitious, or patently unsubstantial. A
summary judgment would be proper because there is no
genuine issue (Spouses Agbada v. Inter-Urban Developers,
389 SCRA 430, 432).
Where only the genuineness and due execution of the
promissor'y note· are the matters deemed admitted for the
failure of the defendant to deny the same under oath, a
summary judgment is not proper. Bar 1986
In an action for a sum of money, where the debt and the
fact of its nonpayment is admitted, and the only issue raised
is the rate of interest or the damages payable, there is no
genuine issue and a summary judgment may be rendered
upon proper motion.
4. A "genuine issue" is an issue of fact which requires
the presentation of evidence as distinguished from a sham,
fictitious, contrived or false claim. When the facts, as pleaded,
appear uncontested or undisputed, then there is no real or
genuin� issue or question as to the facts, and summary
CHAPTER VIII 547
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
judgment is called for. The party who moves for summary
judgment has the burden of demonstrating clearly the absence
of any genuine issue of fact, or that the issue posed in the
complaint is patently unsubstantial so as not to constitute a
genuine issue for trial. Trial courts have limited authority to
render summary judgments and may do so only when there
is clearly _:Il,() genuine issue as to any material fact. Whe11 the
facts as pleaded by the parties'·are disputed or cori:tested,
proceedings for summary judgment cannot take the place of
trial (Philippine Bank of Communications v. Go, 642eSCRA
693, 705-706; See also Smart Communications, Inc. v. Aldecoa,
G.R. No. 166330, September 11, 2013; Yap v. Siao, supra).
Motion required
The trial court cannot motu proprio decide that summary
judgment on an action is in order. Under the applicable
provisions of Rule 35, the defending party or the claimant, as
the case may be, must invoke the rule on summary judgment
by filing a motion. The adverse party must be notified of the
motion for summary judgment and furnished with supporting
affidavits, depositions or admissions before hearing is
conducted (Pineda v. Heirs of Eliseo Guevara, 515 SCRA 627,
637-638).
Distinctions between a judgment on the pleadings and a
summary judgment (Bar 1989; 2016)
L In a judgment on the pleadings, there is an absence
of a factual issue in the case because the answer tenders no
issue at all. A summary judgment involves an issue, but the
issue is not genuine (Narra Integrated Corporation u. Court of
Appeals, 344 SCRA 781, 786-787). In a summary judgment,
the issue may only be as to the amount of damages but not as
to any material fact (Sec. 3, Rule 35, Rules of Court).
2. A motion for judgment on the pleadings is filed by
a claiming party like a plaintiff or a counterclaimant (Sec. 1,
Rule 34, Rules of Court). A motion for summary judgment may
be filed by either the claiming or the defending party (Secs. 1,
2, Rule 35, Rules of Court).
 .CHAPTER VIII 549
548 CML PROCEOURE,VOLUME I
TRIAL, DEMURRER TO EVIDENCE, AND JUDGMENT
THE BAR LECTURES SERIES

3. A judgment on the pleadings is based on the 2. Under the 1997 Rules of Civil Procedure (Sec. 2, Rule
pleadings alone (Sec. 1, Rule 34, Rules of Court). A summary 36), the date of the entry of judgment is the date when the
judgment is based on the pleadings, affidavits, depositions judgment becomes final and executory regardless of the date
and admissions (Sec. 3, Rule 35, Rules of Court). Bar 2015; when the physical act of entry was done. Thus, if the judgment
2016 becomes final and executory on March 15, because no appeal,
motion for new· trial or motion for reconsideration has been
4. Only a .·. three-day notice to the adverse party · is filed; the judgment is deimied entered simultaneously on
required prior to the date of hearing in «'motion for judgment March 15 by operation of thi:ifule even if the actlial physical
on the pleadings based on the regular rules on motions (Sec. 4, act of entry of the judgment was done on another date like
Rule 15, Rules of Court). A 10-day notice. to the adverse party
March 30. This new rule eliminates confusion in determining
is required in a motion for summary judgment. The adverse the date of entry of a judgment. Prior to this rule, the date when
party, in turn, may serve opposing affidavits, depositions or
a judgment becomes final and executory was not necessarily
admissions at least three days before the hearing (Sec. 3, Rule
the date of its entry.
35, Rules of Court).
Sec. 2 of Rule 36 clearly provides that, "The date of
Judgment against an entity without a juridical personality finality of the judgment or final order shall be deemed to be
the date of its entry."
A judgment against an entity without a juridical
personality should be related to Sec. 15 of Rule 3. Under this
provision, when two or more persons not organized as an Relevance of knowing the date of the entry of a judgment
entity with juridical personality, nevertheless, transact with There are some proceedings the filing of which is reckoned
third persons under a common name, they may be sued under from the date of the entry of judgment. Examples: (a) The
the name by which they are generally or commonly known. execution of a judgment by motion is within five years from
Thus, if Jose, Pedro, and Juan, transact with other people the entry of the judgment (Sec. 6, Rule 39, Rules of Court); (b)
under the name, "ABC Boys," they may be sued under that The filing of a petition for relief has, as one of its periods, not
name. Under Sec. 6 of Rule 36, the judgment shall be actually more than six montl:is from the entry of the judgment or final
against the persons who form the entity without a juridical �rder.(Sec. 3, Rule 38, Rules of Court). ·
personality and the judgment shall set out their individual or
proper names, if known. -oOo-
Entry of judgment; date thereof
1. The entry of judgment refers to the physical act
performed by the clerk of court in entering the dispositive
portion of the judgment in the book of entries of judgment
after the same has become final and executory.
The record shall contain the dispositive portion of the
judgment or final order and shall be signed by the clerk of
court, with a certificate by said clerk that the judgment has
already become final and executory (Sec. 2, Rule 36, Rules of
Court).

Chapter IX
POST JUDGMENT _REMEDIES
. -'i :"!
I - REMEDIES BEFORE A JUDGMENT BECOMES
FINAL AND EXECUTORY
Post judgment remedies available to the aggrieved party
(Bar 2006)
1. Imagine the emotional impact which an adverse
judgment can cause to a litigant. The news of defeat is
expectedly devastating especially when the case had dragged
on for years. The normal initial reaction of the losing party
is to inquire from his lawyer the remedies he may avail of
to have the judgment reversed or modified in his favor. The
big query, therefore, is: "What are the remedies of a losing
litigant?"
The answer to the query is not that complicated. One
simply has to first ascertain whether or not the judgment
sought to be assailed is already final and executory. Knowing
whether or not the judgment is final and executory is the key
to unlocking the reme.dies afforded by the Rules of Court.
2. A summary of the rules will disclose that before a
judgment becomes final and executory, the aggrieved or losing
party may avail of the following remedies:
(a) Motion for reconsideration;
(b) Motion for new trial; and
(c) Appeal. Ba1· 2014
3. After the judgment becomes final and executory, the
losing party may avail of the following:
(a) Petition for relief from judgment;
550
CHAPTER IX 551
POST JUDGMENT REMEDIES
(b) Action to annul a judgment;
(c) Petition for Certiorari; and
(d) Collateral attack of a judgment. Bar 2014
4. The next important query is: When does a judgment
become final and executory? A judgment becomes e:xecutory
'.upon the expiration ofthe period to appeal .from a judgment
'>or order that finally cli�poses of the action br' proceeding, if
.no appeal has been duly perfected. A judgment also becomes
executory after an appeal taken from the ju'dgment or order
has been finally resolved (See Sec. 1, Rule 39, Rules of Court).
· 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 thos e
judgments which, under the Rules, are immediately executory,
like those provided for under Sec. 4 of Rule 39 of the Rules of
Court. Such judgments are enforceable after their rendition
and shall not be stayed by an appeal taken therefrom (Sec. 4,
Rule 39, Rules of Court).
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.
A. Motion for Reconsideration
(Rule 37; Bar 2009; 2014)
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 summar),
prncech..!re
A motion for reconsideration of a judgment is a prohibited
motion in a case that falls under the 1991 Revised Rules on
 552 CIVIL PROCEDURE, VOLUME!
THE BAR LECTURES SERIES
Summary Procedure (Sec. 19[c], IV, 1991 Rules on Summary
Procedure). Bar 1989, 1990 The motion is also prohibited in
actions for unlawful detainer and forcible entry (Sec. 13[3],
Rule 70, Rules of Court), such actions being governed by the
Rules on Summary Procedure (Sec. 3, Rule.70, Rules of Court).
Motion for:reconsideration in srriall claims cases
)'"' - ,· l•�'; - ,. .
A motion for reconsideration of a judgment is prohibited
under Sec. 16(c) of the Rules of Procedure in Small Claims
Cases, as amended (A.M. No. 08-8-7-SC).
Motion for reconsideration in petitions for writ of amparo
and habeas data
In a petition for a writ of amparo (Sec. 1 l[k}, The Rule on
the Writ of Amparo) and habeas data (Sec. 13[k}, The Rule on
the Writ of 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 (l\llamba v. Bueno, G.R. No.
191416, February 7, 2017). 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
(Sec. 1, Rule 2, Part IL Rules of Procedure for Environmental
Cases).
When to file
1. A motion for reconsideration of a judgment or final
order is filed within the period for taking an appeal (Sec. 1,
Rule 37, Rules of Court). No motion for extension of time to file
a m.otion for reconsideration shall be allowed (Sec. 2, Rule 40;
Sec. 3, Rule 41, Rules of Court).
2. The period for appeal depends on whether the appeal
is by mere notice of appeal or by record on appeal.
CHAPTER IX 553
POST JUDGMENT REMEDIES
Where the appeal is one made by notice of appeal, the
period for appeal referred to in the immediately preceding
number is within 15 days after notice to the appellant of the
judgment or final order appealed from (Sec. 2, Rule 40; Sec. 3,
=
Rule 41; Sec. 2, Rule 45, Rules of Court).
Where a record on appeal is required, the period is within
· 30 days from noticeof.:the judgment or fin�lorder (Sec. 2, Rule
40; Sec. 3, Rule 41, Rules of Court). A recoid on appeal shall be
required only in special proceedings and in cases which allow
multiple or separate appeals (Sec. 3, Rule'40, Rules of Court;
Sec. 2, Rule 41, Rules of Court; See also Chipongian v. Benitez­
Lirio, G.R. No. 162692, August 26, 2015).
3. The above-mentioned periods begin to run upon
receipt of notice of the decision or final order appealed from.
Such periods begin upon receipt of notice· by the counsel of
record, which is considered notice to the parties. Service of
judgment on the party represented by counsel is not considered
the official notice and receipt of the judgment (De las Santos u.
Elizalde, 514 SCRA 14, 27).
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 (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules of
Court).
Grounds for a motion for reconsideration; what to allege
1. The motion for reconsideration must be in writing; a
written notice of which must be served on the adverse party,
and may be anchored on any of the following grounds:
(a) That the damages awarded are excessive;
(b) That the evidence is insufficient to justify the
decision or final order; or
(c) That the decision or final order is contrary to
law (Sec. 1, Rule 37, Rules of Court).
2. It is not sufficient to mention the ground relied upon.
It is necessary for the motion for reconsideration to specifically

554 CMLPROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
point out the findings or conclusions of the judgment or final
order which are not supported by the evidence or which are
contrary to law. The rule also requires the motion to make
express reference to the testimonial or d◊cumentary evidence
or the provisions of law alleged to be contrary to such
findings or conclusions (Sec. 2, Rule 37, Rules of Court). No"n­
cm11pliance with this reqµir!clment would reduceJI}._� motion to
a r:riere pro forma motion;· Under the explicit pro'v:i�1ons of the
rule (See Sec. 2, Rule 37; Rules of Court), a proforma motion
↳
for reconsideration shall not toll the reglementary period of
appeal even if timely filed.
as a matter of 80th
Pro forma motion {Bar 2011)
1. A pro forma motion is one which does not satisfy
the requirements of the rules and will be treated as a motion
intended to delay the proceedings (Marikina Development
Corporation u. Flojo, 251 SORA 87, 93).
2. A motion for reconsideration is deemed pro forma
if the same does not specify the findings or conclusions of the
judgment which are not supported by the evidence or contrary
to law, making express reference to the pertinent evidence
or legal provisions. It is settled that, although a motion for
reconsideration may merely reiterate issues already passed
upon by the court, that, by itself, does not make it pro forma
and is immateriarbecause what· is essential is compliance
with the requisites of the Rules.
3. In the cases where a motion for reconsideration
was held to be pro forma, the same was so held because of
any of the following reasons: (a) it was a secon.d motion for
reconsideration, (b) it did not comply with the rule that the
motion must specify the findings and conclusions alleged to be
contrary to law or not supported by the evidence, (c) it failed
to substantiate the alleged errors, (cl) it merely alleged that
the decision in question was contrary to law, or (e) the adverse
party was not given notice thereof.
Where the circumstances of a case do not show an intent
on the part of the pleader to merely delay the proceedings
CHAPTERJX 555
POST JUDGME;NT REMEDIES
and his motion reve/;J.ls a bona fide effort to present additional
matters or to reiterate his arguments in a different light, the
courts should be slow to declare the same outright as pro
forma (Philippine National Bank u. Paned,a, 515 SORA 639,
649, citing Marina Properties Corporation u. Court of Appeq,ls,
294 SCRA 273).
� ... �,
Resolution of;':the motion
The motion shall be resolved within 30 days from the
time it is submitted for resolution (Sec. 4, Rule 37, Rules of
Court).
-
Remedy against the order denying a motion for reconsideraM
tion
If the motion is denied, the movant may appeal from the
judgment or final order, not to appeal from the order denying
the motion for reconsideration. Sec. 9 of Rule 37 is explicit:
x x x An order denying a x x x motion for
reconsideration is not appealable, the remedy being an
-
appeal from the judgment or final order."
Remedy when motion is denied
1. The remedy from an order denying a motion for
reconsideration is not . to appeal from the order of denial.
The order is not appealable. The remedy is to appeal from
the judgment or final order itself subject of the motion for
reconsideration (Sec. 9, Rule 37, Rules of Court).
2. May the order denying the motion for reconsideration
be assailed by a petition for certiorari under Rule 65? The
answer used to be in the affirmative. Sec. 1 of Rule 41 clearly
provided then for the proper remedy against the order: "In all
instances where the judgment or final order is not appealable,
the aggrieved party may file an appropriate special civil action
under Rule 65."
However, effective December 27, 2007, it is submitted
that the order denying a motion for reconsideration is no
 556 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
longer assailable by certiorari because of the amendment
to Rule 41 by A.M. No. 07-7-12-SC. Deleted from those
matters enumerated in Rule 41 subject to a Rule 65 petition
is "an order denying a motion for new trial or a motion for
reconsideration." The amendment obviously seeks to prevent·
the filirig · of a petition for certiorari under Rule 65 based
.., on an order denying. ;a .motion for new tria.l, or a motion for
reconsideration. The' remedy available, therefore, would be
that prescribed under Sec. 9 of Rule 37, i.e., to appeal from the
judgment or final order.
The "Fresh Period" rule; Neypes rule
1. As earlier discussed, the party whose motion for
reconsideration is denied may appeal from the judgment
or final order. What is the period for such an appeal? This
question was settled by the jurisprudence which several
years back adopted the "fresh period" 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. 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. This "fresh period" rule applies not only to Rule
41 governing appeals from the Regional Trial Courts but
also to Rule 40 governing appeals from the Municipal Trial
Court to the Regional Trial Court, Rule 42 on petitions for
review from the Regional Trial Courts to the Court of Appeals,
Rule 43 on appeals from quasi-judicial agencies to the Court
of Appeals, and Rule 45 governing appeals by certiorari to
the Supreme Court. Accordingly, this rule was adopted to
standardize the appeal periods provided in the Rules and to
afford fair opportunity to appeal their cases, and to give the
trial court another opportunity to review the case, and, in the
process, minimize any error of judgment (See Neypes v. Court
of Appeals, 469 SCRA 633).
CHAPTER IX 557
POST JUDGMENT REMEDIES
The Court, in Neypes, explained:
"The original period of appeal xxx remains and the
. requirement for strict compliance still applies. The fresh
period of 15 days becomes significant only when a party opts
to file a motionfor. new trial or motion for reconsideration.
In this manner, the trial court which rendered the assailed
decisioi;i is given another oppbrt,iinity to review the ca:se
and;,"in the process, minimize and/or rectify any errofof
judgment. While we aim to resolve cases with dispatch
and to have judgments of courts become final at some
definite time, we likewise aspire to deliver justice fairly.
In this case, the new period ofl5 days eradicates the
confusion as to when the 15-day appeal period should be
counted - from receipt of notice of judgment xxx or from
receipt of notice of "final order" appealed from. xxx
To recapitulate, a party litigant may either file his
notice of appeal within 15 days from receipt of the Regional
Trial Court's decision or file it within 15 days from receipt
of the order (the "final order") denying his motion for new
trial or motion for reconsideration. 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, Section 3" (Neypes u. Court of Appeals, supra;
Underscoring supplied).
2. Following the "fresh period" rule, the period for appeal
of the losing party, who filed a motion for reconsideration, does
not start from the date of the notice to him of the judgment. It
starts from notice to him of the order denying or dismissing his
motiqn for reconsideration. Thus, assume that Mr. Defendant·
received notice of the adverse judgment on May 2. Promptly,
he filed a motion for reconsideration of the judgment on May
10. On June 1, the court denied his motion but the notice of
denial was received by Mr. Defendant only on June 10. If
the period for appeal is 15 days, Mr. Defendant has a" fresh
period" of 15 days to appeal from June 10, not from May 2, the
date of the notice of the judgment. If, however, Mr. Defendant
did not file a motion for reconsideration or a motion for new
558 CIVIL PROCEDURE, VOLUME I
Ti-IE BAR LECTURES SERIES
trial, the period for appeal is to be reckoned from May 2, the
date of notice of the judgment.
The basis for the "fresh period" rule is the period for
appeal embodied in Section 2 of Rule 40 and Section 3 of Rule
41. In both provisions the period for appeal is i5 days from
notice of the "judgment or final order" appealed from. Note
that the rule dj.i:l'not provide that appJa}may be taken within'
15 days from the notice of the "judgilient" only. The appeal
may also be taken from notice of "finaJ order".
The term "final order" finds no significance where the
losing party did not file a motion for reconsideration, in which
case the period for appeal starts from notice of the "judgment".
If the losing party files either a motion for new trial or a
motion for reconsideration, the ruling of the court on that
motion is deemed to be the "final order" of the court. Thus, if
the court denies the motion, that denial is deemed the "final
order." Hence, the period for appeal is to be reckoned from the
date the denial of the motion (final order) was received by the
movant. The date the denial of the motion was received is the
elate of "notice of :final order." From that notice, the appellant
has a "fresh period" of 15 days to appeal.
Note: The same rule applies when a motion for new trial
is denied.
3. The filing of a motion for reconsideration is not a
waiver of the right to appeal. In one case, the respondent in­
sisted that by opting to file a motion for reconsideration, in­
stead of directly appealing, the petitioner accordingly effec­
tively lost the right to appeal. The contention, ruled the Court,
was erroneous and deserved scant consideration because from
the date the petitioner received the-resolution denying her
motion, she had a "fresh period" of 15 days within which to
appeal (Gagui v. Dejero, G.R. No. 196036, October 23, 2013).
The Neypes rnle lhas no application to non-judicial
proceedings
The Neypes rule covers only judicial proceedings. Hence,
the rule does not apply to administrative appeals like appeal
CHAPTERIX 559
POST JUDGMENT REMEDIES
from the decision of the HLURB Board of Commissioners to
the Office of the President (San Lorenzo Ruiz Builders and
Developers Group, Inc. v. Bayang, G.R. No. 194702, April 20,
2015) or from the decision of the DENR Regional Office to
the DENR Secretary (Jocson v. San Miguel, G.R. No. 206941,
March 9, 2016). Also, the Neypes rule does not apply to
appeals from the Local Board of Assessment Appeals (LBM)
to the · Central Board of Assessment Appeals (GBAA) since
the Appeal is not judicial but administrative (National Power
Corporation v. The Provincial Treasurer of Benguet; G.R. No.
209303, November 14, 2016).
Application of the Neypes rule to criminal cases
In Yu v. Samson-Tatad, G.R. No. 170979, February 9,
2011, the rule in Neypes has been held to be applicable t
:
criminal cases. Central to the ruling of the Court in Judith
Yu is the provision of Sec. 39 of B.P. 129, as amended, which
provides that the period for appeal shall be 15 days counted
from the notice of the final order, resolution, award, judgment,
or decision appealed from. This period of appeal is, by th
clear tenor of Sec. 39, applicable "in all cases"; hence, covers
criminal cases as well.
The Court explained:
"xxxWhile Neypes involved the.period to appeal in
civil cases, the Court's pronouncement of a "fresh period"
to appeal should equally apply to the period for appeal in
criminal cases under Section 6 of Rule 122 of the Revised
Rules of Criminal Procedure, for the following reasons:
First, BP 129, as amended, the substantive law on
which the Rules of Court is based, makes no gistinction
between the periods to appear in a civil case and in a
criminal case. Section 39 of BP 129 categorically states
that "[t]he period for appeal from final orders, resolutions,
awards, judgments, or decisions of any court in all cases
shall be fifteen (I 5) days counted from the notice of the final
order, resolution, award, judgment, or decision appealed
from." Ubi lex non distinguit nee nos distinguere debemos.
When the law makes no distinction, we (this Court) also
ought n,ot to recognize any distinction.
560 CIVIL PROC EDURE, V OLUME I
THE BAR L ECTURES S ERIES
Second, the prov1s10ns of Section 3 of Rule 41 of
the 1997 Rules of Civil Procedure and Section 6 of Rule
122 of the Revised Rules of Criminal Procedure, though
differently worded, mean exactly the same. There is no
substantial difference between the two provisions insofar
as legal results are concerned - the appeal period stops
running, upon the filing of a motion for new trial or
reconsidhation and starts to run;i\.gain upon receipt of the_:
order d��ying said motion for new trial or reconsideration. :
It was this situation that Neypes addressed in civil cases. •
No reason exists why this situation in criminal cases
cannot be similarly addressed.
Third, while the Court did not consider in Neypes the
ordinary appeal period in criminal cases under Section 6,
Rule 122 of the Revised Rules of Criminal Procedure since
it involved a purely civil case, it did include Rule 42 of
the 1997 Rules of Civil Procedure on petitions for review
from the RTCs to the Court of Appeals (CA), and Rule 45
of the 1997 Rules of Civil Procedure governing appeals
by certiorari to th[e] Court, both of which also apply to
appeals in criminal cases, as provided by Section 3 of Rule
122 of the Revised Rules of Criminal Procedure x x x.
XXX
"Were we to strictly interpret the "fresh period
rule''. in Neypes and make it applicable only to the period_
to appeal in civil cases, we shall effectively foster and
encourage an absurd situation where a litigant in a civil
case will have a better right to appeal than an accused in
a criminal case - a situation that gives undue favor to civil
litigants and unjustly discriminates against the accused­
appellants. It suggests a double standa,-d of treatment
when we favor a situation where property interests are
at stake, as against a situation where liberty stands to be
prejudiced x x x."
Order of denial, not appeaiable
The "Fresh Period" Rule does not refer to the period
within which to appeal from the order denying the motion for
reconsideration, butJo the period within which to appeal from
CHAPT ERIX 561
POST JUDGMENT REMEDIES
the judgment itself because an order denying a motion for
reconsideration is not appealable (See Sec. 9, Rule 37, Rules
of Court).
Effect of granting a motion for reconsideration
. , .. If the court grants the motion for reconsider!:l,tion, i.e., it
:fi1;1d1 that excessive damages have been awa�ded or that the
judgment or final order is contrary to the evidence or law, it
may amend such judgment or final order accordingly (Sec. 3,
Rule 37, Rules of Court).
The amended judgment is in the nature of a newjudgment
which supersedes the original judgment. It is not a mere
supplemental decision which does not supplant the original
but only serves to add something to it (Esquiuel u. Alegre, 172
SCRA 315, 325).
Partial reconsideration
If the court finds that a motion affects the issues of
the case as to only a part, or less than all of the matters in
controversy, or only one, or less than all, of the parties to it,
the order may grant a reconsideration as to such issues if
severable without interfering with the judgment or final order
upon the rest (Sec. 7, Rule 37, Rules of Court).
The "Single Motion" rule (Bar 2013)
1. As a general rule, a party shall not be allowed to file
a second motion for reconsideration of a judgment or a final
order. The rule states: "No party shall be allowed a second
motion for reconsideration of a judgment or final order" (Sec.
5, Rule 37, Rules of Court).
2. A second motion for reconsideration is prohibited
and can only be allowed on extraordinarily persuasive reasons
and only after an express leave shall have first been obtained
O
(Roasters Philippines, Inc. u. Gauiola, G.R. No. 191874,
September 2, 2015).
. 562 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Motion for reconsideration in appealed cases; stay of
execution (Rule 52; Bar 2012; 2013; 2016)
1. A party may file a motion for reconsideration of
a judgment or final resolution within 15 days from notice
thereof, with proof of service on the adverse party (Sec. 1, Rule
52, Rule.s of Court}: This motion shall be ·resolved within 90
days from,the date when the �ourt declares it submitted for
resolution· (Sec. 3, Rule 52, Rulh/of Court).
2. The pendency of the motion for reconsideration shall
stay the execution of the judgment or final resolution sought
to be reconsidered, provided the motion is filed (a) on time,
and (b) by the proper party. The exception is when the court,
for good reasons, otherwise directs (Sec. 4, Rule 52, Rules of
Court).
3. The court shall not entertain a second motion for
reconsideration of a judgment or final resolution. The second
motion that is not allowed refers to the motion filed by the
same party (Sec. 2, Rule 52, Rules of Court). What the provision
prohibits "is a second motion for reconsideration filed by the
same party involving the same judgment or final resolution"
(Buot v. Dujali, G.R. No. 199885, October 2, 2017).
4. Taken in conjunction with Sec. 2 of Rule 56 of the
Rules of Court, the provisions of Sec. 2 of Rule 52, prohibiting a
second motion for reconsideration, also apply to original cases
filed before the Supreme Court, which includes disciplinary
proceedings against judges. The prohibition does not,
however, apply when the Court grants express leave to file a
second motion for reconsideration granted for "extraordinary
persuasive reasons" (Verginesa-Suarez v. Dilag, A.M. No.
RTJ-06-2014, August 16, 2011). Note that, under Rule 56, one
of the rules applicable to the Supreme Court in cases filed
originally before it is Rule 52 (Motion for Reconsideration).
B. IVfotion for New Trial (Rule 37)
Nahm� a new Mal
"A new trial is a remedy that seeks to temper the severity
of a judgment 01� prevent a failure of ji,lStice x x x. The grant
CHAPTER IX 563
POST JUDGMENT REMEDIES
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" (Ybiernas v. Tanco-Gabaldon,
G.R. No. 178925, June 1, 2011).
Motion for new trial in cases covered by summary proce­
<ciure
A motion for new trial is a prohibited motion in a case
that falls under the 1991 Revised Rule on Summary Procedure
(Sec. 19[c], Part IV, 1991 Rule on Summary Procedure). Bar
1989;1990
Motion for new trial in small claims cases
A motion for new trial is prohibited under Sec. 16(c) of
the Rule of Procedure in Small Claims Cases, as amended
(A.M. No. 08-8-7-SC).
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 (Sec. 1, Rule 2, Part IL Rules of Procedure
for Environmental Cases).
When to file
1. A motion for new trial is filed within the period for
taking an appeal (Sec. 1, Rule 37, Rules of Court). No motion
for extension of time to file a motion for new trial shall be
allowed (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules of Court). Bar
1975
2. Where the appeal is by notice of appeal, the period
for appeal is within 15 days after notice to the appellant of the
judgment or final order appealed from (Sec. 2, Rule 40; Sec. 3,
Rule 41; Sec. 2, Rule 45, Rules of Court).
Where a record on appeal is required, the period for
appeal is within 30 days from notice of the judgment or final
order (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules of Court). A record
 564 . CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
on appeal shall be required only (a) in special proceedings,
and (b) other cases of multiple or separate appeals (Sec. 3,
Rule 40, Rules of Court).
Effect of the filing of the motion on the period to appeal
The filing of a timely motion
. for new trial in�er;rupts the
period.to appeal (Sec. 2, iRule 40; Sec. 3, Rule'.JJi).·Rules of
�u�
Form of a motion for new trial
Like a motion for reconsideration, the motion for new
trial 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 (Sec. 2, Rule 37, Rules of Court).
Grounds for a motion for new trial (Bar 2011)
1. The aggrieved party may move the trial court to set
aside the judgment or final order and grant a new trial on
one or more of the following causes materially affecting the
substantial rights of said party:
(a) Fraud, accident, mistake or excusable negli­
gence 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 (Sec. 1_, Rule 37, Rule_s of Court). Bar 1988
2. A motion for the cause mentioned in paragraph "a"
shall be supported by affidavits of merit. A motion based on
the ground in letter "b" shall be supported by (a) affidavits of
the witnesses by vvhom such evidence is expected to be given,
or (b) by duly authenticated documents which are proposed to
be introduced in evidence (Sec. 2, Rule 37, Rules of Court).
CHAPTERIX 565
POST JUDGMENT REMEDIES
Non-compliance with this requirement would reduce the
motion to a mere pro forma motion.
Under the explicit provisions of the rule (Sec. 2, Rule 37,
Rules of Court), a pro forma motion for new trial shall not toll
the reglementary period of appeal.
Affidavit of rrlirit'
1. Under the Rules, the moving party must show
that he has a meritorious defense. The facts constituting the
movant's good and substantial defense, which he may prove
if the petition were granted, must be shown in the affidavit
which should accompany the motion for a new trial. Mere·
allegations that one has a "meritorious defense" and a "good
cause" are mere conclusions which do not provide the court
with any basis for determining the nature and merit of the
case. An affidavit of merit should state facts, and not mere
opinion or conclusions of law.
2. An affidavit of merit is required in a motion for
new trial founded on fraud, accident, mistake or excusable
negligence (Uy v. First Metro Integrated Steel Corporation,
503 SCRA 704, 712).
Newly:discovered e'(idence; requisites
Before a new trial may be granted on the ground of newly..
discovered evidence, it must be shown (1) that the evidence
was discovered after trial; (2) that such evidence could not
have been discovered and produced at the trial even with
the exercise of reasonable diligence; (3) that it is material,
not merely cumulative, corroborative, or impeaching; and (4)
the evidence is of such weight that it would probably change
the judgment, if admitted. If the alleged newly-discovered
evidence could have been very well presented during the trial
with the exercise of reasonable diligence, the same could not
be considered newly discovered evidence (Ybiemas v. Tanco­
Gabaldon, G.R. No. 178925, June 1, 2011).
566 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Gross negligence of counsel not a ground for new trial
Petitioner's argument that his counsel's negligence was
so gross that he was deprived of due process fails to impress.
Gross negligence is not one of the grounds for a motion for a
new trial. The Court cannot declare his counsel's negligence
as gross as to liberate him from the effects of his failure to
p·resent countervailing evidence. The Court doesinot consider
as gross negligence th; cbunsel's resort to d:iiktory schemes,
such as (1) the filing of at least three motions to extend the
filing of petitioner's answer; (2) his non-appearance during the
scheduled pre-trials; and (3) the failure to file petitioner's pre­
trial brief, even after the filing of several motions to extend the
date for filing (Uy v. First Metro Integrated Steel Corporation,
503 SCRA 704, 713).
Resolution of the motion
The motion shall be resolved within 30 days from the
time it is submitted for resolution (Sec. 4, Rule 37, Rules of
Coitrt).
Denial of the motion; the "Fresh Period" Rule
If the motion for new trial is denied, the movant has a
"fresh period" of 15 days from receipt or notice of the order
denying or dismissing the motion for new trial within which
to file a notice of appeal for the same reasons and grounds as
the "Fresh Period" Rule governing a denial of a motion for
reconsideration (Neypes v. Court of Appeals, supra).
Order of denial, not appealable
The "Fresh Period" Rule does not refer to the period
with{n which to appeal from the order denying the motion for
new trial because the order is not appealable under Sec. 9 of
Rule 37. It refers to the period within which to appeal from
the judgment.
Remedy whera mot.ion is denied
May the order denying the motion for new trial be assailed
by a petition for certiorari under Rule 65? The answer used to
CHAPTERIX 567
POST JUDGMENT REMEDIES
be in the affirmative. Sec. 1 of Rule 41 clearly provided then for
the proper remedy against the order: "In all instances where
the judgment or final order is not appealable, the aggrieved
party may file an appropriate special civil action under Rule
65."
Howeve:r, effective Decembei; 27, 2007, an order de.µying
a motion 'fo:?new trial is no loi1ger assailable by cer#ofori
because of the amendment to Rule 41 by A.M. No. of7-12-
SC. Deleted from those matters from which no appeal can
be taken, and from which order Rule 65 may be availed of,
is "an order denying a motion for new trial or a motion for
reconsideration." The amendment seeks to prevent the filing
of a petition for certiorari under Rule 65 based on an order
denying a motion for new trial or a motion for reconsideration.
The remedy available, therefore, would be that prescribed
under Sec. 9 of Rule 37, i.e., to appeal from the judgment or
final order.
Effect of granting the motion for new trial (Bar 2011)
If the court grants the motion for new trial, the original
judgment or final order shall be vacated, and the action shall
stand for trial de nova. The recorded evidence taken upon the
former trial shall be used at the new trial without retaking
the same if the evidence is material and competent
· · (Sec. 6,
Rule 37, Rules of Court).
Partial new trial
l. If the court finds that a motion affects the issues of
the case as to only a part, or less than all of the matters in
controversy, or only one, or less than all, of the parties to -it,
the court may grant a new trial as to such issues if severable
without interfering with the judgment or final order upon the
rest (Sec. 7, Rule 37, Rules of Court). The effect of this order is
a partial new trial.
2. When there is an order for a partial new trial, i.e.,
less than all of the issues are ordered retried, the court may1
either enter a judgment or final order as to the rest, or staYi
 568 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
the enforcement of such judgment or final order until after the
new trial (Sec. 8, Rule 37, Rules of Court).
Second motion for new trial
While a second motion for reconsideration is not allowed,
a second motion fqr p.ew trial is authorized by the Rules. A
motion for new triakshall include all groil:rids then available.
Those not so included are deemed waived. However, when a
r
ground for a new trial was not existing o: available when the
first motion was made, a second motion for new trial may be
filed within the period allowed but excluding the time during
which the first motion had been pending (Sec. 5, Rule 37,
Rules of Court).
New trial in appealed cases
1. Under Sec. 1 of Rule 53, at any time after the appeal
from the lower court has been perfected and before the Court
of Appeals loses jurisdiction over the case, a party may file
a motion for new trial on the ground of newly-discovered
evidence.
Pursuant to the same provision, to be deemed a newly­
discovered evidence, such evidence should be (a) one which
could not have been discovered prior to the trial in the court
below even with the exercise of reasonable diligence; and (b)
one of such a character as would probably change the result.
The motion, in itself, would be insufficient. The rule,
likewise, requires that the motion be accompanied by affidavits
showing the facts constituting the grounds therefor and the
newly-discovered evidence.
2. The motion shall be resolved within 90 days from
the date when the court declares it submitted for resolution
(Sec. 3, Rule 53, Rules of Court).
3. The procedure in the new trial shall be the same as
that granted by a Regional Trial Court. The Court of Appeals
may, however, direct otherwise (Sec. 4, Rule 53, Rules of
Court). It may, therefore, adopt its own rules.
CHAPTER IX 569
POST JUDGMENT REMEDIES
4. A new trial does not apply to the Supreme Court
(Rule 56, Rules of Court). It applies, however, to the Court of
Appeals (Sec. 9, B.P. 129; Rule 53, Rules of Court).
APPEALS
General :principles on appeal . _
f . An appeal is the re�edy available to a litig�:nf seekiD;g
to reverse or modify .a judgment on the merits of a case (Cortal
v. Inaki A. Larrazabal Enterprises, G.R. No. 199107, August
30, 2017). 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 correct 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.
2. If a losing litigant desires to obtain a reversal or
modification of a judgment adverse to him, the remedy is
to appeal from the judgment. Save certain circumstances
mentioned in this material in a later discussion of Rule 65, it
is generally not correct to question the decision of a court on
the merits by invoking the extraordinary remedy of certiorari.
It is worth remembering that a petition for certiorari,
under Sec. 1 of Rule 65, is available only when there is no
appeal or any plain, speedy or adequate remedy in the
ordinary course of law. Hence, the availability of an appeal
or some other remedy precludes the application of certiorari.
-
It is vital to remember what jurisprudence has consis-
tently held: "x x x [W]here an appeal is available, certiorari
will not prosper, even if the ground invoked is grave abuse
of discretion (Butuan Development Corporation v. Gour
of Appeals, G.R. No. 197358, April 5, 20 I 7; Punongbayan­
Visitacion v. People, G.R. No. 194214, January JO, 2018;
Career Executive Service Board v. Civil Service Commission,
G.R. No. 196890, January II, 2018).
_570 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
3. 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. It is a mere statutory privilege,
and may be exercised only in the manner and in accordance
with the provisions of law (People v. Hilario, G.R. No. 210610,
January 11, 2018; Melendres v. Gutierrez, G.R. No. 194346,
June 18, 2018;.FJfadditional readings, ;ee Orlina v. Ventura,
G.R. No. 22703_3, December 3, 2018). .
For instance, the requirement of paying the full amount
of docket fees within the prescribed period is mandatory for
the perfection of an appeal. The rule is not a mere technicality
of law or procedure because without such payment, the appeal
is not perfected (Spouses Lee v. Land Bank of the Philippines,
G.R. No. 218867, February 17, 2016). This rule is, of course,
subject to the liberal construction rule enunciated in Sec. 6,
Rule 1 of the Rules of Court.
4. 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
thatthey have overlooked, misunderstood or misapplied some
facts or circumstances of weight and substance that could have
altered the judgment (People v. Caballero, G.R. No. 210673,
June 29, 2016; See also People v. Ladra, G.R. No. 221443, July
17, 2017; See also People v. Dillatan, Sr., G.R. No. 212191,
September 5, 2018).
Also, the Supreme Court has repeatedly held that it is
not necessary to examine, evaluate or weigh the evidence all
over again especially where the trial court's factual findings
are adopted and affirmed by the Court of Appeals. This means
that factual findings of the trial court when affirmed by
the Court of Appeals, are final and conclusive and may not
be reviewed on appeal (Bacalso u. Aca-ac, G.R. No. 172919,
Janu,ary 13, 2016; For further readings, see People v. Napoles,
CHAPTER IX 571
POST JUDGMENT REMEDIES
G.R. No. 215200, July 26, 2017; People v. Delector, October 4,
2017; See also, Revilla, Jr. v. Sandiganbayan [First Division],
July 24, 2018).
The above rule, however, does not apply when the Court
of Appeals manifestly overlooked certain relevant facts not
dispvted by the parties,,which, if properly conpidered, would
justJ.fy a different cond:us10n. In which case," the Supreme
Court can go over the ;records and re-examirie the evidence
presented by the parties in order to arrive at a much better
and just resolution of the case (Baleares v. Espanto, G.R. No.
229645, June 6, 2018).
Judgments or orders that are appealable
An appeal may be taken from a judgment or final order
that completely disposes of the case, or of a particular matter
therein when declared by the Rules to be appealable (Sec. 1,
Rule 41, Rules of Court; Chipongian v. Benitez-Lirio, G.R. No.
162692, August 26, 2016). Hence, an interlocutory order is not
appealable until after the finality of the judgment on the merits
(Sec. l[b], Rule 41, Rules of Court). 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 (For further readings, see Miranda v. Sandiganbayan,
G.R. Nos. 144760-61, August 2, 2017).
Judgments or orders that are not appealable (Bar 2014)
l. Certain judgments and orders are specifically
declared as not appealable. Thus, under Sec. 1 of Rule 41, no
appeal may be taken from:
(a) An order denying a petition for relief or any
. similar motion seeking relief from judgment;
5'72 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
(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
vitiati'pg· consent;
(e) .. An order of execution;
(f) · A judgment or final order for or against
one or more of several parties or in separate claims,
counterclaims, cross-claims, and third-party complaints,
while the main case is pending, unless the court allows
an appeal therefrom; and
(g) An order dismissing an action without prejudice
(See Leuiste Management System, Inc. u. Legaspi Towers
200, Inc., G.R. No. 199353, April 4, 2018). Bar 2011
Note: As of December 27, 2007, an aggrieved party may
no longer assail an order denying a motion for new trial or
motion for reconsideration by way of Rule 65, as per AM.
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 pursuant to Sec. 9, Rule 37, Rules
of Court.
2. Examples:
(a) Defendant filed a motion to dismiss based on
improper venue. The motion was denied. The denial of
the motion does not completely dispose of the case; hence,
the order denying the motion is merely interlocutory.
An interlocutory order is not appealable under the clear -
terms of Sec. l(b) of Rule 41.
Jurisprudence explains the rationale of the rule:
"An interlocutory order is not appealable until after the
rendition of the judgment on the merits for a contrary
rule would delay the administration of justice and unduly
burden the courts" (Sime Darby Employees Association u.
NLRC, 510 SC.RA 204, 217).
CHAPTERIX 57:
POST JUDGMENT REMEDIES
If the motion to dismiss based on improper venw
is granted, the order of dismissal is an order withou
prejudice, i.e., without prejudice to the refiling of th<
complaint. Such order, under the unequivocal terms o
Sec. l(g) of Rule 41, as amended, is not appealable.
(b) The.RTC, upon proper motion and hearing
dismissed a c�mplaint for violation :gf the rule requirint
a certification against forum shopping. The ordei
dismissing the complaint is generally not appealabl
Under Sec. 5 of Rule 7, a dismissal of this nature is, as ,
rule, a dismissal without prejudice. An order dismissin1
an action without prejudice is not appealable under Se-7
l(g) of Rule 41, as amended.
(c) In one case, a party filed a petition for reli
from judgment. From the order denying the petition, th<
petitioner filed a petition for review on certiorari undei
Rule 45. It is obvious that the petitioner availed of th<
wrong remedy. A petition under Rule 45 is a mode
appeal. Under Sec. l(a) of Rule 41, as amended, the deni
of a petition for relief from judgment is subject only t<
a special civil action under Rule 65 and not through f
petition for review on certiorari under Rule 45, which is E
mode of appeal (Trust International Paper Corporation
Pelaez, G.R. No. 164871, August 22, 2006).
. . . ' .
(d) Even if the notice of appeal is filed within 1(
days from notice of a motion denying a motion for nevi
trial or reconsideration, if the subject of the motion is ar
order dismissing the action without prejudice, the fl.lint
of a notice of appeal is the wrong remedy because an ordei
dismissing an action without prejudice is not app-ealable
The order may be the subject of the special civil action fol
certiorari under Rule 65 (Malwti Insurance Co., Inc. u
Reyes, 561 SCRA 234, 249).
(e) If a case is dismissed by the RTC _because o
the repeated failure of the plaintiffs to appear in the pre
trial, the dismissal is not to be assailed in a petition foi
certiorari in the CA The Court ruled that the remedy i:

· · 574 CML PROCEDURE, VOLUME J.
THE BAR LECTURES SERIES
an appeal to the CA under Rule 41. Since the RTC did not
state that the dismissal is without prejudice, it is deemed
to be with prejudice under Sec. 5 of Rule 18 of the Rules
of Court. A dismissal with prejudice is an adjudication on
the merits; hence, appealable. A peti�ion for certiorari is.
the wrong mode of judicia.l review (Chingkoe v. Republic,
· ·
G.B/No. 183608, July 31/�013).
(f) A dismissal, pursuant to a motion to dismiss,
on 'the ground of bar by a prior judgment, prescription,
or any of the grounds mentioned. In Sec. 5 of Rule 16,
precludes the refiling of the same action or claim. Hence,
the dismissal is with prejudice. The aggrieved plaintiff
should appeal, not file a petition under Rule 65.
(g) An order of the trial court dismissing a case
for failure to prosecute is a final order. Such order or
dismissal operates as a judgment on the merits because
the dismissal has the effect of an adjudication upon the
merits, unless otherwise declared by the court (Systems
and Plan Integrator and Development Corporation v.
Municipal Government of Murcia, G.R. No. 217121,
March 16, 2016; Sec. 3, Rule 17, Rules of Court).
(h) The tenor of Sec. l[f] of Rule 41 instructs that
not _every judgment or final order is appealable. When
the judgment or final order does not affect all parties or
all the claims in a case, the same does not completely
dispose of the case, hence, said judgment or final order
is not, as a rule, appealable, unless the court allows an
appeal therefrom. An example of this type of judgment or
final order is a several or a separate judgment provided
for, respectively, in Secs. 4 and 5 of Rule 36 of the Rules
of Court. A several judgment, in Sec. 4, is one rendered
against one or more of the several defendants, leaving
the action to proceed against the others. On the other
hand, a separaie judgment is one which disposes of only
one or more claims without disposing of all the claims
in the case. In both several and separate judgments, the
entire case is not yet completely over.
CHAPTERIX 575
POST JUDGMENT REMEDIES
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, Rule 41, Rules of
Court; Crisologo v. JEWN Agro-Industrial Corporation, G.R.
No. 196894, March 3, 2014).
�:'';-:
Remedy againkt an order of executiciri; exceptions
1. In a · case, the petitioner· argued that the CA
should have dismissed the petition for certiorari filed by the
respondent against the order of execution of the RTC on the
ground of improper remedy. The petitioner further argued that
the trial court, which issued the order of execution, maintains
a general supervisory control or power over its execution, and
this power, according to the petitioner, carries with it the
right to determine questions of fact and law, which may be
involved in the execution. Thus, no grave abuse of discretion
or an act in excess of jurisdiction could have been committed
by the trial court that would call for a petition for certiorari.
The Court, calling the argument as "mental acrobatics,"
maintained that Sec. 1 of Rule 41 explicitly provides that no
appeal may be taken from an order of execution and a party
who challenges such order may file a special civil action for
certiorari under Rule 65 of the Rules of Court. (Esguerra v.
Holcim Philippines, Inc., G.R. No. 182571, September 2, 2013).
2. It was held, however, that while an order of
execution is not appealable, the rule is not absolute since a
party aggrieved by an improper or irregular execution is not
without a remedy. The Court emphasized that to rule that
a speciai civil action for certiorari constitutes the sole and
exclusive remedy to assail a writ or order of execution would
unduly restrict the remedy available to a party prejudiced by
an improper or illegal execution, as when the writ of execution
varies the judgment, there is a change in the situation of the
parties, the writ of execution is improvidently issued, the writ
is defective in substance, or is issued against the wrong party.
In these exceptional circumstances, considerations of justice
576 CIVIL PROCEDURE, VOLUME.I
THE BAR LECTURES SERIES
and equity dictate that there be some mode available to the
party aggrieved of elevating the question to a higher court.
That mode of elevation may be either by appeal, or by a special
civil action for certiorari, prohibition, or mandamus (City
Government of Makati v. Odena, G.R.. No. 191661, August 13,
.
�1�
An order of executi6n iiiay be challenged Under Rule 65
(See also, Orix Metro Leasing and Finance Corporation V.
Cardline, Inc., G.R. No. 201417, January 13, 2016). This is
still the general rule.
Issues that may and may not be raised on appeal
1. It is settled that issues that have not been raised
before the lower courts cannot be raised for the first time on
appeal (Spouses Erorita v. Spouses Dumlao, G.R. No. 195477,
January 25, 2016). Raising a new ground for the first time
on appeal contravenes due process, as that act deprives the
adverse party of the opportunity to contest the assertion of the
claimant (Heirs of Gilberto Roldan v. Heirs of Silvela Roldan,
G.R. No. 202578, September 27, 2017). In other words, the
assignment of errors of the appellant should refer to the
issues raised by the parties in the trial court. Such a rule finds
expression in Rule 44, Section 15 of the 1997 Rules of Civil
Procedure, which provides -
"SEC. 15. Questions that may be raised on appeal. -
Whether or not the appellant has filed a motion for new
trial in the 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."
2. Issues raised for the first time on appeal and not
raised in the proceedings below ought not to be considered
by a reviewing court (Ayala Land, Inc. v. Castillo, G.R. No.
178110, January 12, 2016). Overriding considerations of fair
play, justice and due process dictate the above rule. So, where
the original theory of the case is nullity of a mortgage, a party
can no longer raise a new theory on appeal that is not connected
CHAPTER IX 577
POST JUDGMENT REMEDIES
with the theory invoked in the trial court. If the new theory is
allowed, the adverse party has no more opportunity to rebut
the new claim with contrary evidence because the trial stage
has already been terminated (Cahayag v. Commercial Credit
Corporation, G.R. No. 168078, January 13, 2016).
In th� same vein, objections, relating to non-compyance
with the yerification and certification of non-forum shopping
requiremei:its should not be raised for the first time on appeal
(GSIS Family Bank-Thrift Bank [formerly Comsavings Bank,
Inc.] v. BPI Family Bank, G.R. No. 175278, September 23,
2015). In an earlier case, the appellate court was held to have
committed a reversible error in sustaining the dismissal of a
case based on improper venue because the same was not raised
by the appellant in his appeal (Cruz v. Manila International
Airport Authority, G.R. No. 184732, September 9, 2013).
3. An exception to the rule that a party may not change
his or her theory on appeal was recognized in Lianga Lumber
Co. v. Lianga Timber Co., Inc., 76 SCRA 197, wherein the
Court ruled: "In the interest of justice and within the sound
discretion of the appellate court, a party may change his legal
theory on appeal only when 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 (Lao v. Yao Bio Lim, G.R. No. 201306, August
��� .
Role of the appellee
The appellee's role in the appeal process is confined only
to the task of refuting the assigned errors interposed by th�
appellant. Since the appellee is not the party who ip_stituted
the appeal, the Court explained that he merely assumes a
defensive stance and his interest is solely relegated to the
affirmance of the judgment appealed from. It is, accordingly,
highly erroneous for the appellee to either assign any error, or
seek any affirmative relief or modification of the lower ,court's
judgment without interposing his own appeal. Citing previous
jurisprudence, the Court, likewise, ruled, among others, that
an appellee cannot impugn the correctness of a judgment not
 578 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
appealed from by him. He cannot assign such errors as are
designed to have the judgment modified. The appellate court
cannot take cognizance of a ground for dismissal interposed by
the appellee who did not appeal. Hence, a dismissal made by
the appellate court on a ground not raised as an error by the
appellant is a reversible error (Gruz v. Manila International
,}Airport Authority, suj)rd).
J.;f .. , .... ... .
Errors to be consider,ed by the appellate ce>urt
1. Another basic rule on appeal is expressed in Sec. 8
of Rule 51: The appellate court shall consider no error unless
stated in the assignment of errors.
The rule, however, that the appellate court shall not
consider errors not raised in the assignment of errors is not
an absolute one. Sec. 8 of Rule 51 precludes its absolute
application allowing as it does certain errors which, even if
not assigned, may be ruled upon by the appellate court. Hence,
the court may consider an error not assigned as error or raised
on appeal provided the same falls within any of the following
categories:
(a) It is an error that affects the jurisdiction over
the subject matter;
(b) It is an �rror that affects validity of the judgment
appealed from;
(c) It is an error which affects the validity of the
proceedings;
(d) It is an error closely related to or dependent on
an assigned error, and properly argued in the brief (Heirs
of 11/larcelino Doronio v. Heirs of Fortunato Doronio, 541
SCRA 479); and
(e) It is a plain and clerical error (Sec. 8, Rule 51,
Rules of Court; Martires v. Chua, 694 SCRA 38, 52-53,
ii/larch 20, 2013).
The fact that the appellant's brief did not raise the issue
of lack of jurisdiction of the trial court should not prevent the
CHAPTER IX 579
POST JUDGMENT REMEDIES
Court from taking up such issue (Dy v. NLRC, 145 SCRA 211,
213). Bar 1993
2. Jurisprudence, significantly holds that an appellate
court has broad discretionary powers to waive the proper lack
of assignment of errors and to consider: errors not assigned
(Javines v. Xlibris, G.R. No. 214301, June 7, 2017). Thfo
mean§. that an appellate co1+,rt :may also consider niatters not
mend.oned in Sec. 8 of Rule 51. Thus it has bee:rfheld that
the Court of Appeals, for instance, is imbued with, sufficient
authority and discretion to review matters, not otherwise
assigned as errors on appeal, provided it finds that the
consideration is necessary in arriving at a complete and just
resolution of the case or to serve the interests of justice or to
avoid dispensing piecemeal justice (Asian Terminals, Inc. v.
NLRC, G.R. No. 158458, December 19, 2007; Diaz-Enriquez u.
Director of Lands, G.R. No. 168065, September 6, 2017).
A more recent case affirms the above rule and allows a
review of unassigned errors or as long as the consideration
of errors not specifically raised or assigned as errors is
necessary in arriving at a just resolution of the case (Digital
Telecommunications Phils., Inc. v. Ayapana, G.R. No. 195614,
January 10, 2018). In the Digital Telecommunications case,
the employee argued that, since the employer failed to file a
motion to reconsider the findings of the NLRC that he was
illegally dismissed, it is no·w bound by such findings. As such,
he insisted, that the matter of illegal dismissal can no longer be
raised as an issue before the Court of Appeals. The Court held
that the issue of whether the employee was validly dismissed
may be passed upon by the Court of Appeals since the said
issue is pivotal to the employee's entitlement to his prayer for
back wages and separation pay. The resolution of the issue is
necessary to arriving at a just disposition of the case (Digital
Telecom1nunications Phils., Inc. v. Ayapana, C.R. No. 195614,
January 10, 2018).
Harmless errors (Bar 2017)
1. There are errors committed by the trial court which
do not affect the substantialrights of.the parties. These erro.rs

580 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
are "harmless" and do not require the automatic reversal of
the judgment of the lower court. In other words, even if an
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 (See Sec. 6, Rule
51, Rules of Court). For example, if, despite a timely objection,
evidence of the previous negligent act df the defendant was
erroneously admitted, such evidence wilf hcit 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
Also, in an earlier criminal case, the reference by the
trial judge to reports about the troublesome character of the
appellant is a harmless error if the reason for his conviction is
his identification by witnesses with high credibility (See People
u. Teehanhee, Jr., G.R. Nos. 111206-08, October 6, 1995).
2. "x x x The harmless error rule obtains during review
of the things done by either the trial court or by any of the
parties themselves in the course of the trial, and any error
thereby found does not affect the substantial rights or even the
merits of the case. The Court has had occasions to apply the
rule in the correction of misspelled name due to clerical error,
the signing of the decedents' names in the notice of appeal
by the heirs, the trial court's treatment of the testimony of
the party as an adverse witness during cross-examination by
his own counsel, and the failure of the trial court to give the
plaintiffs the opportunity to orally argue against a motion. All
of the errors extant in the mentioned situation did not have the
effect of altering the dispositions rendered by the respective
· trial courts" (Flight Attendants and Stewards Association of
the Philippines [FASAPJ u. Philippine Airlines, Inc., G.R. No.
178083, March 13, 2018; Citations of the Court, omitted).
A.ppeals in criminal cases
In criminal cases, an appeal opens the entire case
for review. Thus, it is the duty of the reviewing tribunal to
correct, cite, and appreciate errors in the appealed judgment
CHAPTER IX 581
POST JUDGMENT REMEDIES
whether they are assigned or unassigned. The appeal confers
upon the appellate court full jurisdiction over the case and
renders such court competent to examine records, revise the
judgment appealed from, increase the penalty, and cite the
proper provision of the penal law (People u. Diputado, G.R.
No. 213922, July 5, 2017; People u. Ceralde, G.R. No. 228894,
Augu�t 7, 2017; People u. Santos, G.R. No. 223N2, January
17;· 2018; People u. De la:Vittoria, G.R. No. 233325,·April 16,
2018; See also People u. Ejercito, G.R. No. 229861, July 2,
2018;Yap u. People, G.R. No: 234217, November 14; 2018).
Payment of docket fee; liberal construction
1. Payment of docket fees and other legal fees within
the prescribed period is both mandatory and jurisdictional;
non-compliance with 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 the 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. Non-payment of the appellate court docket and
other lawful fees within the reglementary period is a ground
for the dismissal of an appeal (Cu-Unjieng u. Court of Appeals,
479 SCRA 594, 602; Regalado u. Go, 514 SCRA 616, 634; See
also National Transmission Corporation u. Heirs of Ebesa,
G.R. No. 186102, February 24, 2016).
2. 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.
The established rule is that the payment in full of the
docket fees within the prescribed period is mandatory.
Nevertheless, this rule must be qualified, to wit:
First, the failure to pay appellate court docket fee
within the reglementary period allows only discretionary
dismi�sal, not automatic dismissal, of the appeal;

582 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Second, such power should be used in the exercise
of the Court's sound discretion "in accordance with the
tenets of justice and fair play and with great deal of
circumspection considering all attendant circumstances"
(Republic v. Spouses Luriz, 513 SCRA 140, 151, citing
Buenaflor v. Court" of Appeals, 346 SCRA 563, 567).
3. Whil� as a rule, the payriien't of the appellate dclk�t
fee is mandatory and jurisdictional, the failure to pay the fee
confers upon the court a mere directory power to dismiss an
appeal. Such power must be exercised with sound discretion
and with a great deal of circumspection considering all
attendant circumstances (Co It v. Co, G.R. No. 198127, October
5, 2016).
Record on appeal; notice of appeal
1. An appeal is made 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 (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 (Sec. 2[a}, Rule 41, Rules of Court).
2. 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 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.
Exmnple: 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
CHAPTER IX 583
POST JUDGMENT REMEDIES
order of expropriation (Sec. 4, Rule 67, Rules of Court). This
order of expropriation may be appealed from by any party by
filing a record on appeal (Tan v. Republic, 523 SCRA 203, 211-
212).
The second stage is the determination by the court of the
just compensation for the property sought to be expropriated.
A second and separhte appeal may be taken ;from this order
fixing the just comp�nsation (Tan v. Republic, ibid. at 212).
Dismissal of an appeal
1. The following are the grounds for the dismissal of an
appeal by the Court of Appeals on its own motion or on that of
the appellee (Sec. 1, Rule 50, Rules of Court):
"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 Sec. 5, Rule 40 and Sec.· 4
of Rule 41;
(d) Unauthorized alterations, omissions or addi­
tions in the approved record on appeal as provided in Sec.
4 of Rule 44;
(e) Failure of the appellant to sen;e and file the
required number of copies of his brief or memorandum
within the time provided by these Rules;
(£) Absence of specific assignment of errors in the
appellant's brief, or of page references to the -record as
required in Sec. 13, paragraphs (a), (c), (d) and (f) of Rule
44;
584 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
(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
'; '· . •··
jusl}fiable cause; and
>
(i) The fact that the order or judgment appealed
from is not appealable" (Italics supplied).
The use of the term "may" in Sec. 1 of Rule 50, it is
submitted, indicates that the di.smissal is addressed to the
sound discretion of the appellate court.
In People u. Diaz, for instance, the Court, referring to
Sec. l(e) of Rule 50, held that the dismissal of the appeal
upon failure to file the appellant's brief is not mandatory, but
discretionary. Verily, declared the Court, "the failure to serve
and file the required number of copies of the appellant's brief
within the time provided by the Rules of Court does not have
the immediate effect of causing the outright dismissal of the
appeal. This means that the discretion to dismiss the appeal
on that basis is lodged in the CA, by virtue of which the CA
may still allow the appeal to proceed despite the late filing
of the appellant's brief, when the circumstances so warrant
its liberality'' (People v. Diaz, 691 SCRA 139, 148, February
18, 2013; Sibayan u. Costales, G.R. No. 191492, July 4, 2016;
Pilipinas Shell Petroleum Corporation u. Royal Ferry Services,
Inc., G.R. No. 188146, February 1, 2017; For further readings,
see Alejo u. Cortez, G.R. No. 206114, June 19, 2017).
2. The following are the grounds for the dismissal of an
appeal in t"he Supreme Court motu proprio by the Court or on
motion of the respondent (Sec. 5, Rule 56, Rules of Court):
"(a) Failure to take the appeal within the
reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs;
CHAPTER IX 585
POST JUDGMENT REMEDIES
(d) Failure to comply with the requirements re­
garding proof of service and contents of and the docu­
ments which should accompany the petition;
(e) Failure to comply with any circular, directive or
order of the Supreme Court without justifiable cause;
(f) Error,in th� choice or mode of appeal; and
(g) The fact that the case is5ncit appealable to the
Supreme Court."
Withdrawal of the appeal
The withdrawal of an appeal maybe a matter of right
or a matter of judicial discretion. Before the filing of the
appellee's brief, the appeal may be withdrawn as a matter
of right. However, once the appellee's brief has been filed,
the withdrawal may be allowed in the discretion of the court
(See Sec. 3, Rule 50, Rules of Court; Commissioner of Internal
Revenue u. Nippon Express [Phils.] Corporation, G.R. No.
212920, September 16, 2015).
A. Appeal from Municipal Trial Courts to the
Regional Trial Courts (Rule 40)
Where to appeal from a judgment or final order of a Municipal
Court (Bar 2014)
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 (Sec. 1, Rule 40, Rules of Court). However, when th
Municipal Trial Court renders a judgment in the exercise of
its delegated jurisdiction in cadastral and land registration
cases, its decisioh shall be appealable in the same manner as
decisions of the Regional Trial Court (Sec. 34, The Judiciary
Reorganization Act, as amended [B.P. 129). Hence, the appeal
shall be taken to the Court of Appeals.
When to appeal
An appeal may be taken within 15 days after notice to
the appellant of the judgment or final order appealed from.
586 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Where a record on app�l:).l is required, the appellant shall file
a notice of appeal and a record on appeal within 30 days after
notice of the judgment or final order (Sec. 2, Rule 40, Rules of
Court). Bar 1991
How to appeal; contents of notice of appeal
Y The appeal is t:iktin by (a) filing a ncitice of appeal
with the court that rendered the judgment or final order
appealed from, and by (b) serving a copy of the notice and
record on the adverse party (Sec. 3, Rule 40, Rules of Coz.trt).
Thus, if the judgment was rendered by the Metropolitan Trial
Court, the notice of appeal must b.e filed with, said court, not
with the Regional Trial Court (Sec. 3, Rule 40, Rules of Court).
In special proceedings and other cases of multiple or separate
appeals, a record on appeal shall be required.
The notice of appeal shall (a) indicate the parties to the
appeal, (b) the judgment or final order or part thereof appealed
from, and (c) state the material dates showing the timeliness
of the appeal (Sec. 3, Rule 40, Rules of Court).
2. 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
(Sec. 5, Rule 40, Rules of Court).
3. Within 15 days from the perfection of the appeal, the
clerk of court of the lower court shall transmit the original
record or the record on appeal, together with transcripts and
exhibits, which he shall certify as complete, to the proper
Regional Trial Court (Sec. 6, Rule 40, Rules of Court).
Pert'eci:lon of the appeal
1. A party's appeal by notice of appeal is deemed
perfected as to him upon the filing of the notice of appeal in
due tir.oe. A party's appeal by record on appeal is deemed
CHAPTERIX 587
POST JUDGMENT REMEDIES
perfected as to him with respect to the subject matter thereof
upon the approval of the record on appeal filed: in due time
(Sec. 4, Rule 40 in relation to Sec. 9, Rule 41, Rules of Court).
Bar 1999
2. 'Fhe notice of appeal does not require the approval
of the court, The function of the nqtice of appeal is merely to
notify the tfiafcourt that the appkllant was availing of.the
right to appeal, and not to seek thecourt'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 (Crisologo v. Daray,
562 SCRA 382, 391).
Duty of the clerk of court of the RTC
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 (Sec. 7[a}, Rule 40, Rules of
Court).
Submission of memorandum
1. Within 15 days from such notice, it shall be the duty
of the appellant to submit a memorandum, copy of which shall
be furnished the appellee (Sec. 7[b}, Rule 40, Rules of Court).
2. For the appellant, the filing of a memorandum is
vital to his appeal. Failure to so file shall be a ground for the
dismissal of the appeal. The memorandum shall briefly discuss
the errors imputed to the lower court. The appellee may, ifhe
so desires, file his memorandum within 15 days from receipt
of the appellant's memorandum (See Sec. 7[b],-Rule 40, Rules
of Court).
When case is deemed submitted for decision
The case shall be considered submitted for decisi<;m upon
the filing of the memorandum of the appellee, or the expiration
of the period to do so (Sec. 7[c], Rule 40, Rules of Court).
 588 CIVIL PROCEDURE,.VOLUME I
THE BAR LECTURES SERIES
Basis of the 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 (Sec. 7[c], Rule 40,
Rules of Court).
;, Appeal from an ordeidismissing a case fot l�ck of jurisdic­
tion (Bar 2014)
1. A case may be dismissed in the Municipal Trial
Court without a trial on the merits. This occurs, for instance,
when a motion to dismiss is filed and granted in accordance
with Rule 16 of the Rules of Court. If an appeal is taken from
the dismissal by the lower court, the Regional Trial Court may
affirm or reverse it, as the case may be.
Under Sec. 8 of Rule 40, if, however, the dismissal in
the Municipal Trial Court is made on the ground of lack of
jurisdiction over the subject matter, and the Regional Trial
Court on appeal affirms the dismissal, the action of the latter
court, if it has jurisdiction, shall not be confined to a mere
affirmation of the dismissal if it has jurisdiction over the
subject matter. Instead, the rule requires the Regional Trial
Court to try the case on the merits as if the case was originally
fi_led with it.
2. Under the same provision, 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 Rules. The court may,
however, admit amended pleadings·and additional evidence
in the interest of justice.
3. Recall that when a case is dismissed pursuant to
a motion to dismiss or motu proprio for lack of jurisdiction,
the order of dismissal is one without prejudice because the
plaintiff may refile the complaint with the court with the
proper jurisdiction. By the terms of Sec. l(g) of Rule 41, as
amended, the order dismissing an action without prejudice is
CHAPTER IX·,'. 589
POST JUDGMENT REMEDIES
not appealable. The tenor, however, of Sec. 8 of Rule 40, on
the other hand, indicates that the rule allows an appeal from
an order of the MTC dismissing a case for lack of jurisdiction.
Section 8 of Rule 40 should be considered as an exception to
Sec. 1 of Rule 41 which precludes an appeal from an order
dismissing an action without prejudice.
�B. Appeal from the Regional Trial Courts
to the Court of Appeals (Rule 41)
Modes of appeal from the decision of the Regional Triai
Court (Bar 2009; 2014; 2017)
There are three modes of appeal from the decision of the
Regional Trial Court, namely:
(a) An ordinary appeal or appeal by writ of error,
where judgment was rendered by the court in the
exercise of its original jurisdiction. This mode of appeal is
governed by Rule 41 and is taken to the Court of AppealP
on questions of fact or mixed questions of fact and law.
(b) Petition for review, where judgment was
rendered by the court in the exercise of its· appellate
jurisdiction. This mode of appeal is covered by Rule 42
and is brought to the Court of Appeals on questions of
fact, questions of law, or mixed questions of fact and law.
(c) Petition for review on certiorari or appeal by
certiorari to the Supreme Court. This mode is brought
to the Supreme Court from the decision of the Regional
Trial Court in the exercise of its original jurisdiction
and only on questions of law (Sec. 2[c], Rule 41, Rules
of Court; Five Star Marketing Corp. v. Booe, 535 SCRA
28, 41-43; For further readings, see Quezon City v. ABS­
CBN Broadcasting Corporation, 567 SCRA 496; Republic
v. Malabanan, 632 SCRA 338, 344; See also Far Eastern
Surety and Insurance Co., Inc. v. People, G.R. No. 170618,
November 20, 2013; Republic v. Cortez, G.R. No. 187527,
February 7, 2017; Almendras v. South Davao Development
Corporation, G.R. No. 198209, March 22, 2017).
590 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Modes of appeal from the Regional Trial Court to the Court
of Appeals (Bar 2009; 2014)
There are two modes of appeal from the RTC to the CA,
thus:
(a) by writ of error (ordinary appeal) - where the
appealed juq.gn,ient was renderedj.na civil or criminal
action by the: Regional Trial Court in the exercise of its'",
original jurisdiction; or
(b) by petition for review - where the judgment was
rendered by the Regional Trial Court in the exercise of its
appellate jurisdiction (Leynes v. Former Tenth Division of
the Court of Appeals, G.R. No. 154462, January 19, 2011;
For further readings, see Escoto v. Philippine Amusement
and Gaming Corporation, G.R. No. 192679, October
17, 2016; Magat, Sr. v. Tantrade Corporation, G.R. No.
205483, August 23, 2017). Bar 2010; 2017
Mode of appeal from the Regional Trial Court to the Supreme
Court
l. This mode (appeal by certiorari or petition for review
on certiorari under Rule 45) is brought to the Supreme Court
from the decision of the Regional Trial Court in the exercise
of its original jurisdiction and only on questions of law (Sec.
2, Rule 41, Rules of Court; Five Star Marketing Corp. v.
Booe, 535 SCRA 28; Quezon City v. ABS-GEN Broadcasting
Corporation, supra; Republic v. Malabanan, supra).
2. Recent jurisprudence is explicit when it rules that
there are two modes of appealing a judgment or final order of
the RTC in the exercise of its original jurisdiction, namely:
(a) An ordinary appeal to the CA, in accordance
with Rule 41, in relation to Rule 44 of the Rules of Court,
if the issues raised involve questions of fact or mixed
questions of fact and law (Philippine National Bank v.
Pasimio, C.R. No. 205590, September 2, 2015);
(b) A petition for review on -certiorari to the
Supreme Court, in a_ccordance with Rule 45 of the Rules
CHAPTER IX 591
POST JUDGMENT REMEDIES
of Court, if the issues raised involve only questions of
law (Bases Conversion Development Authority v. Reyes,
G.R. No. 194247, June 19, 2013). To file a petition under
Rule 45 with the Supreme Court from the Regional Trial
Court, raising mixed questions of fact and law, is to avail
of a wrong remedy (Quilo v. Bdjao, G.R. No. 186199;
;,_,September 7, 2016).
, ..
3. An appeal under Rule 41 taken from the Regional
Trial Court to the Court of Appeals raising only questions
of law shall be dismissed, issues purely of law not being
reviewable by said court. Similarly, an appeal by notice of
appeal, instead of by petition for review from the appellate
judgment of a Regional Trial Court, shall be dismissed (Sec. 2,
Rule 50, Rules of Court; See also Dy Chiao v. Bolivar, G.R. No.
192491, August 17, 2016). An appeal erroneously taken to the
Court of Appeals shall not be transferred to the appropriate
court but shall be dismissed outright (Sec. 2, Rule 50, Rules of
Court).
Application of Rule 41 on ordinary appeal
Rule 41 applies to appeals from the judgment or final
order of the Regional Trial Court in the exercise of its original
jurisdiction. This appeal is called an "ordinary appeal" (Sec.
2[a], Rule 41, Rules of Court).
Example: If a judgment by the Regional Trial Court in
an action for specific performance is to be appealed from,
Rule 41 will govern the appeal. This is because an action
for specific performance is initially filed with the said court.
Any judgment rendered by it on the case would, then, be a
judgment rendered in the exercise of its original jurisdiction.
On the other hand, if a litigant loses in the MTC and, on
appeal, loses in the RTC, the mode of appeal to the Court of
Appeals from the RTC is by way of a petition for review under
Rule 42. This is because the decision of the RTC is one in the
exercise of its appellate jurisdiction.
592 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
When to appeal (Bar 2011)
1. The appeal shall be taken within 15 days from
notice 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 30 days.from notice of
the judgmen� or final order (Sec. 3, fiu[e 41, Rules of Court).
2. In ,habeas corpus cases, ihe· appeal shall be taken
within 48 hours from notice of judgment or final order (Sec. 3,
Rule 41, Rules of Court). Bar 2011
How to appeal
1. 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 (a) filing a notice of appeal with
the court which rendered the judgment or final order appealed
from, and (b) serving a copy thereof upon the adverse party
(Sec. 2[a}, Rule 41, Rules of Court). Bar 1988
A record on appeal shall be required in special
proceedings and other cases of multiple or separate appeals
when so required by law or the Rules (Sec. 2[a], Rule 41, Rules
of Court). Where both parties are appellants, they may file a
joint record on appeal (Sec. 8, Rule 41, Rules of Court).
2. 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 fee (Sec. 4, Rule 41, Rules of Court).
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 app-eal 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 (Sec. 9, Rule
41, Rules of Court).
3. Vv'ithin 30 days after perfection of all the appeals, the
clerk of court shall verify the correctness and completeness
of the records and, if incomplete, to take such measures to
complete such records, certify to the correctness of the records,
CHAPTER IX 593
POST JUDGMENT REMEDIES
to transmit the same to the appellate court, and to furnish the
parties with copies of his letter of transmittal of the records to
the appellate court (Sec. 10, Rule 41, Rules of Court).
4. Upon receiving the original record on appeal and the
accompanying documents transmitted by the lower court, as
. well as the proof of payment of the docket and other lawful
::fees, the clerk of courfofthe Court of Appeal� shall docket the
case and notify the parties (Sec. 4, Rule 44, Rules of Court).
5. Within 45 days from receipt of the notice of the clerk
of court, the appellant shall file a brief with proof of service
upon the appellee (Sec. 7, Rule 44, Rules of Court).
Within 45 days from the receipt of the appellant's brief,
the appellee shall file his own brief with proof of service to
the appellant (Sec. 8, Rule 44, Rules of Court). Within 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 (Sec. 9, Rule 44, Rules of Court). 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
(Sec. 12, Rule 44, Rules of Court).
In petitions for certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases, briefs are not filed. Instead,
the parties shall file their respective memoranda within a non·
extendible period of 30 days from receipt of the notice issued
by the clerk that all the evidences are already attached to the
record (Sec. 10, Rule 44, Rules of Court).
Questions that may be raised on appeat
1. While Rule 44 provides that the appellant may
include in his assignment of errors any question of law or
fact that has been raised in the court below and is within the
issues framed by the parties (Sec. 15, Rule 44, Rules of Court),
an appeal from the RTC to the CA under Rule 41 should not
raise pure questions of law because of Sec. 2 of Rule 50 of the
Rules.of Court.
594 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
2. Under Sec. 2 of Rule 50, an appeal under Rule 41
taken from the Regional Trial Court to the Court of Appeals
raising only questions oflaw shall be dismissed, issues purely
of law not being teviewable by said court.
Under the same provision, an appeal by notice of appeal,
instead of by, petition for review from the appellate judgment
· ·· ·
of a Regiohal Trial Court, shall be dismissed.
Residual jurisdiction
1. Residual jurisdiction refers to the authority ofa trial
court to issue orders for the protection and preservation ofthe
rights of the parties, which do not involve any matter litigated
by the appeal, approve compromises, permit appeals ofindigent
litigants, order execution pending appeal in accordance with
Sec. 2 ofRule 39, and allow withdrawal ofthe 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 (Sec.
9, Rule 41, Rules of Court), or in case of a petition for review
under Rule 42 before the Court of Appeals gives due course
to the petition (Sec. 8, Rule 42, Rules of Court; Development
Bank of the Philippines u. Carpio, G.R. No. 195450, February
1, 2017).
2. 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
(Fernandez u. Court of Appeals, 458 SCRA 454, 465).
C. Petition for Review from the Regional Trial
Courts to the Court of Appeals (Rule 42)
P,pp!ication o'f Rule 42
1. Rule 42 applies to an appeal from the judgment or
final orde:r of the Regional Trial Court to the Court ofAppeals
in cases decided by the former in the exercise of its appellate
CHAPTER IX 595
POST JUDGMENT REMEDIES
jurisdiction (Guzman v. Guzman, 693 SCRA 318, 325, March
12, 2013). Bar 1979; 1990; 1998; 2009; 2014; 2017
Example: The plaintiff received an adverse judgment in a
suit for collection ofP350,000 filed with the Metropolitan Trial
Court ofManila. He appealed the judgment of the lower court
with the appropriate Regional Trial Court .and lost again. The
judgment of theiRegional Trial Court is one rendered by it in
the exercise ofit� appellate jurisdictio�-.Ifhe desires to appeal
from this judgment, he should avail of a petition for review
under Rule 42.
2. In a case, a petition for certiorari was filed with the
· RTC which later dismissed the same. From the dismissal, the
petitioner filed a petition for review with the CA. Ruling on
the remedy, the Court emphatically declared that a petition
for certiorari is an original action and, as such, the RTC
took cognizance of the petition in the exercise of its original
jurisdiction. Hence, the petitioner should have filed a notice of
appeal with the RTC, instead ofa petition for review with the
CA. As a consequence of the failure of the petitioner to file a
notice ofappeal with the RTC, the judgment attained finality.
The contention that a petition for review may be treated
as a notice of appeal, since the contents of the former already
include the required contents of the latter, was not accorded
c'redence by the Court, holding that "these modes of appeal
clearly remain distinct procedures which cannot, absent any
compelling reason therefor, be loosely interchanged with one
another. For one, a notice of appeal is filed with the RTC that
rendered the assailed decision, judgment or final order, while
a petitioI_?. for review is filed with the CA. Also, a notice of
appeal is required when the RTC issues a decision, judgment
or final order in the exercise of its original jurisdiction, while
a petition for review is required when such issuance was in
the exercise of its appellate jurisdiction. Thus x x x [the] filing
of the subject petition for review cannot simply be accorded
the same effect as the filing of a notice of appeal" (Yalong u.
People, G.R. No. 187174, August 28, 2013).
596 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
When to appeal
The appeal shall be made within 15 days from notice of the
decision sought to be reviewed or of the denial of petitioner's
motion for new trial or reconsideration filed in due time after
judgment. The court may grant an additional period of 15 days
only provided the extension is sought (a)° upon proper motion,
and (b) payment of the fulVarnount of the docket:.and other
lawfu·l fees and the deposit fbr costs before the 'expiration
of the r(;)glementary period. No further extension shall be
granted except for the most compelling reason and in no case
to exceed 15 days (Sec. 1, Rule 42, Rules of Court; Go v. BPI
Finance Corporation, G.R. No. 199354, June 26, 2013).
How to appeal
1. The appeal is made by filing a verified petition for
review with the Court of Appeals, paying at the same time
to the clerk of said court the corresponding docket and other
lawful fees, depositing the amount of P500 for costs, and
furnishing the Regional Trial Court and the adverse party
with a copy of the petition (Sec. 1, Rule 42, Rules of Court).
The appeal is perfected as to the petitioner upon the
timely filing of a petition for review and the payment of the
corresponding docket and other lawful fees (Sec. 8[a}, Rule 42,
Rules of Court).
2. The petition shall be filed in the proper form required
in Sec. 2 of Rule 42 stating, among others, a concise statement
of the matters involved, the issues raised, the specification
of errors of law or fact, or both, allegedly committed by the
trial court and the reasons or arguments relied upon for the
allowance of the appeal. The petitioner shall, likewise, indicate
the specific material elates showing that the petition was filed
on time (Sec. 2, Rule 42, Rules of Court). The requirement to
indicate the relevant dates is commonly called the material
data rule and applies also to Rule 42, not only to a petition
for certiorari under Rule 65. This petition also requires a
certification against forum shopping (Sec. 2, 2nd par., Rule
42, Rules of Court).
CHAPTER IX 597
POST JUDGMENT REMEDIES
The failure to comply with any of the requirements in
Sec. 2 of Rule 42 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 of the petition (Sec. 3, Rule 42, Rules of Court).
3. The Court of Appeals may dismiss the petition i.f it.
finds the same to be patently without merit, prosecuted merely
for delay, or that the questions raised are too unsubstantial to
require consideration (Sec. 4, Rule 42, Rules of Court).
If the court does not dismiss the petition, it may require
the respondent to file a comment on the petition within 10
days from notice. The respondent shall file a comment, not a
motion to dismiss (Sec. 4, Rule 42, Rules of Court).
4. If 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 (Sec. 6, Rul
42, Rules of Court).
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 15 days from notice.
. The. case shall be deemed suqmitted for decision upon the
filing of the last pleading or memorandum required (Sec. 9,
Rule 42, Rules of Court).
Residual jurisdiction
The doctrine of residual jurisdiction also applies to Rule
42. The Regional Trial Court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties. However,
the Regional Trial Court, despite the perfection of the appeals,
may still 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
 598 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Sec. 2 of Rule 39, and allow withdrawal ofthe appeal provided
these are done before the Court ofAppeals gives due course to
the petition (Sec. 8, Rule 42, Rules of Court). Recall that, in an
ordinary appeal, the residual jurisdiction ofthe_Regional Trial
Court may be exercised prior to the transmittal of the original
record or the record on appeal (Sec. 9, Rule 41, Rules of Court).
\Stay of judgment
Except in civil cases decided under the Rules on Summary
Procedure, the appeal, as a rule, shall stay the judgment or
final order, unless the Court of Appeals, the law or the rules
shall provide otherwise (Sec; 8[bj, Rule 42, Rules of Court).
D. Appeal by Certiorari to the Supreme Court or
Petition for Review on Certiorari (Rule 45)
Application of Rule 45 (Bar 2014)
1. The mode of appeal under Rule 45 is available from
the judgment, final order or resolution of the (a) Court of
Appeals, (b) Sandiganbayan, (c) Court of Tax Appeals, or (d)
Regional Trial Court or other courts, whenever authorized by
law (Sec. 1, Rule 45, Rules of Court).
2. Specifically, appeal by certiorari to the Supreme
Court, commonly known as petition for review ori certiorari,
applies in the following cases:
(a) Appeal from a judgment or final order of the
Regional Trial Court in cases where only questions oflaw
are raised or are involved, and the case is one decided by
said court in the exercise of its original jurisdiction (Sec.
2[c], Rule 41, Rules of Court). Bar 1984
This rule applies only when the decision of the
Regional Trial Court is in the exercise of its original
jurisdiction because when the decision is rendered by
the Regional Trial Court in the exercise of its appellate
jurisdiction, regardless of whether the appellant raises
questions of fact, questions of law, or mixed questions of
CHAPTERIX 599
POST JUDGMENT REMEDIES
fact and law, the appeal shall be brought to the Court
of Appeals by filing a petition for review under Rule 42,
and even if only a question of law is raised (Quezon City
v. ABS-CBN Broadcasting Corporation, 567 SCRA 496,
508-509).
. A decision rendered by the Regional Trial Court in
the}exercise of its appellate jurisdiction, as when it.was
brought before it from the Municipal Trial Court, should
be elevated to the Court ofAppeals under Rule 42; instead
of appealing directly before the Supreme Court under
Rule 45, even if it raises a pure question of law.
In Five Star Marketing Co., Inc. v. Booe, 535 SCRA
28, 42-43, the Court clearly taught:
"x x x Clearly, petitioner raises only questions of
law which require the interpretation and application
of the rules of procedure laid down by the Rules
of Court. However, considering that the assailed
decision was rendered by the RTC in the exercise of
its appellate jurisdiction as it was brought before it
from the MTCC, petitioner should have elevated the
case to the CA under Rule 42 via the second mode
of appeal, instead of appealing directly before this
Court under Rule 45."
(b) 'Appeal from the judgment, final order, or
resolutions of the Court of Appeals where the petition
shall raise only questions of law distinctly set forth
(Sec. 1, Rule 45, Rules of Court). The filing of a petition
for certiorari under Rule 65 from the judgment of the
Court ofAppeals is availing of an improper remedy. The
petition would :rrierit an outright dismissal (Romullo v.
Samahang Maglwkapitbahay ng Bayanihan Compound
Homeowner's Association, G.R. No. 180687, October 6,
201 O);
(c) Appeal from the judgment, final order, or
resolutions of the Sandiganbayan where the petition
shall raise only questions of law distinctly set forth (Sec.
1, Rule 45"Rules of Court);
 600 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
(d) Appeal from the decision or ruling of the Court
ofTax Appeals en bane (Sec. 11, R.A. 9282; Sec. 1, Rule 45
as amended by A.M. No. 07-7-12-SC; Local Water Utilities
Administration Employees Association for Progress v.
Local Water Utilities Administration, G.R. Nos. 206808-
09, September 7, 2016)/
(e) Appeal from a judgment :br '.final order in a ·,:­
petition for a writ ofamparo to the Supreme Court. While
in other cases ·of appeal under Rule 45, only questions of
law may be raised, here the question raised need not only
be questions of law but also questions of fact, or of both
law and fact (A.M. No. 07-9-12-SC, The Rule on the Writ
of Amparo [Sec. 19] effective October 24, 2007);
(f) Appeal from a petition for a writ of kalikasan.
The appeal may raise a question of fact (Sec. 16, Rule 7,
Part III, Rules of Procedure for Environmental Cases).
(g) Appeals from a judgment or final order in a
petition for a writ of habeas data. The appeal may raise
questions of fact or law, or both (A.M. No. 08-1-16-SC,
Rules on the Writ of Habeas Data [Sec. 19], effective
February 2, 2008).
3. The mode ofappeal prescribed under Rule 45 shall be
applicable to both civil and criminal cases, except in criminal
cases where the penalty imposed is death, reclusion perpetua
or life imprisonment (Sec. 9, Rule 45, Rules of Court).
Provisional remedies
Under the latest amendments to Rule 45, the petition for
review on certiorari under Rule 45 may include an application
for a writ of preliminary injunction or other provisional
remedies. The petitioner may seek the same provisional
remedies by verified motion filed in the same action or
proceeding at any time during its pendency (Sec. 1, Rule 45,
as amended by A.lW. No. 07-7-12 SC, effective December 27,
2007).
CHAPTERIX 601
POST JUDGMENT REMEDIES
Not a matter of right
1. An appeal or review under Rule 45 is not a matter of
right, but ofsound judicial discretion, and will be granted only
when special and important reasons could justify the petition.
2. The following are examples -of reasons which the .
cour,t may consider in allowing the petition:
'"' , (a) When the cohrtbelow has decided �-question of
. substance not yet det�rmined by the Supreme Court;
(b) When the court below decided a question of
substance in a way that is probably not in accord with
law or the applicable dec.isions of the Supreme Court; and
(c) When the court below has departed from the
accepted and usual course of judicial proceedings, or so
far sanctioned such departure by a lower court, as to
call for the exercise of the power of supervision of the
Supreme Court (Sec. 6, Rule 45, Rules of Court).
3. Every appeal to the Supreme Court is not a matter
of right, but of sound judicial discretion with the exception of
cases where the death penalty or reclusion perpetua is imposed
(People v. Flores, 481 SCRA 451, 453).
Questions of law; questions of fact (Bar 2014)
1. A question oflaw exi�ts when the doubt or difference
arises as to the truth or falsehood ofalleged facts. On the other
hand, a question of law exists when the doubt or difference
as to what the law is on a certain state of facts (Alburo v.
People, G.R. No. 196289, August 15, 2016). For a question to
be one of law, the same must not involve an 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 (Republic v.
Malabanan, 632 SCRA 338; See also F.A. T. Key Computer
Systems v. Online Networks International, Inc., 641 SCRA
390, 408, February 2, 2011; Eastern Shipping Lines v. BPI/
 602 CML PRQCEDURE, VOLUME I
THE BAR LECTURES SERIES
MS Insurance Corporation, G.R. No. 193986, January 15,
2014; See also Escoto u. Philippine Amusement and Gaming
Corporation, G.R. No. 192679, October 17, 2016; For further
readings, see Berbeso u. Cabral, G.R. No. 204617, July 10,
2017; Adlawan v. People, G.R. No. 197645, April 18, 2018).
2. The te st of whether a question is one of law or of
• .
fact is whetijer the appellate courtfcan determine the iS$Ue_>
raised withdut reviewing or evaluating the evidence.' If
so, it is a question of law; otherwise, it is a question of fact
(Cabling v. Dangcalan, G.R. No. 187696, June 15, 2016; Bank
of the Philippines u. Mendoza, G.R. No. 198799, March 20,
2017; Lao v. LGU of Cagayan de Oro City, G.R. No. 187869,
September 13, 2017). 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 (Manila Bulletin Publishing Corporation v. Domingo,
G.R. No. 170341, July 5, 2017). For instance, the question
of whether or not a summary judgment was proper does not
involve a review of the evidence. The issue is limited to the
inquiry whether or not the rule or law was properly applied
given the facts and the supporting documents (Republic v.
Pilipinas Shell Corporation, G.R. No. 209234, December 9,
2015; See also Adlawan u. People, G.R. No. 197645, April 18,
2018).
findings of facts, not ordinarily reviewed; "factual-issue­
bar" rule
1. Primarily, Sec. 1, Rule 45 of the Rules of Court
categorically states that the petition filed shall raise only
questions of law, which must be distinctly set forth (United
Tourist Promotions v. Kemplin, G.R. No. 205463, February
5, 2014; Philippine Transmarine Carriers, Inc. v. Aligway,
G.R. No. 201793, September 16, 2015; Spouses Lam u. Kodak
Philippines, Ltd., G.R. No. 1676'15, January 11, 2016; see also
Rebultan v. Spouses Daganta, G.R. No. 197908, July 4, 2018).
The rule that only questions of law shall be raised in a
Rule 45 petition, has been referred to as the Factual-Issue-Bar
CHAPTER IX .603
POST JUDGMENT REMEDIES
Rule (Roman Catholic Archbishop of Manila v. Sta. Teresa,
G.R. No. 179181, November 18, 2013).
2. 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
(Gu<!rrero v. Philippine Transmarine Carriers, Inc., G.R. No.
#
! 22523, October 3, 201.8). :
A Rule 45 petition is limited to questions of law since
factual findings of the lower courts are, as arule, conclusive
on the Supreme Court (Berbeso v. Cabral, G.R. No. 204617,
July 10, 2017; See also Macalanda, Jr. v. Acosta, G.R. No.
197718, September 6, 2017). 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 (Maunlad Trans Inc. v. Isidro, G.R. No. 222699, July
24, 2017). The Supreme Court, as a rule, does not try facts
or examine testimonial or documentary evidence on record
(Philippine National Bank v. Dalmacio, G.R. No. 202308, July
5, 2017).
The rule further means that factual findings of the
lower courts will generally not be disturbed (See Evergreen
Manufacturing Corporation v. Republic, G.R. No. 218628,
September 6, 2017) since it is not the Court's function to once
again analyze and calibrate evidence that has already been
considered in the lower courts (Encarnacion Construction
and Industrial Corporation v. Phoenix Ready Mix Concrete
Development & Construction, Inc., G.R. No. 225402, September
4, 2017). 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 (Riosa v. Tabaco
La Suerte Corporation, G.R. No. 203786, October 23, 2013).
Also, the question of whether there is a tenancy relationship
between the parties is basically a question of fact whic):i. cannot
be raised in a Rule 45 petition (Macalanda, J·r. v. Acosta,
G.R. 1\lo. 1.97718, September 6, 2017; For further readings, see
Yamauchi v. 8niiiga, G.R. No. 199513, ,April 18, 2018).
604 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
3. The above rule applies also to criminal cases. The
Court has consistently held that it is guided by the long­
standing principle that, in the review of a case, the factual
findings of the trial court, especially when affirmed by the
CA, deserve great weight and respect. These factual findings
should not be disturbed on appeal, unless there are facts of
weight a,nd substance that were overlooked or misinterpreted
and that" w;uld materially aff�ct 'the disposition of the c'ase
(People u. R'acal, G.R. No. 224886, September 24, 2017).
4. A corollary rule is that the calibration of the
testimonies of the witnesses by the trial court, its assessment
of the probative weight thereof, as w,ell as its conclusions on
the credibility of the witnesses on which said findings were
anchored are accorded with great respect. This great respect
rests in the trial court's first-hand access to the evidence
presented during the trial, and in its direct observation of
the witnesses and their demeanor while they testify on the
occurrences and events attested to (People u. Santos, G.R. No.
223142, January 17, 2018).
E,mmples of issues of fact 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 is a question of fact (De
Lima u. Guerrero, G.R. No. 229781, October 10, 2017).
2. A petition seeking the review of the award of
damages involves a question of fact and cannot, as a rule, be
reviewed in a Rule 45 petition (Yamauchi u. Suniga, G.R. No.
199513, April 18, 2018).
3. A petition, where the issue presented to the Court
is the correctness of the lower court's appreciation of the
evidence, cannot be raised in a Rule 45 petition, since the issue
is one of fact. The same holds true in a petition which seeks
a revievv of the truthfulness or falsity of the allegations of the
parties (Neri u. Yu, G.R. No. 230831, September 5, 2018).
4. The issue of whether or not a mortgagee was in good
faith is a question of fact and cannot be entertained in a Rule
CHAPTER IX 605
POST JUDGMENT REMEDIES
45 petition (Land Bank of the Philippines u. Belle Corporation,
G.R. No. 205271, September 2, 2015).
5. A request in a ,Rule 45 petition for the Court to
re-examine the testimony of a witness in the transcript of
ste11ographic notes concerning his alleged testimonial proof
of damages cannot be. accommodated and the substantive
issue of whether of not one is entitled to ri:ioral and exemplary I
damages, as well as attorney's fees, is a factual issue which is
· beyond the province of a petition for review on certiorari (Vda.
De Formoso u. Philippine National Bank, G.R. No. 154704,
June 1, 2011).
6. The question of whether a person acted with good
faith or bad faith in purchasing and registering real property
is a question of fact (Heirs of Cabigas u. Limbaco, G.R. No.
175291, July 27, 2011; See also Tan u. Jangas, G.R. No.
200285, Jlllarch 20, 2017).
7. Whether the deed of sale entered into by the parties
is a simulated contract is a question of fact not within the
province of certiorari under Rule 45 of the Rules of Court
(Clemente u. Court of Appeals, G.R. No. 175483, October 14,
2015).
8. An assertion that no tenancy relationship existed
between the parties is a question of fact beyond the province
of the Court in a petition for review under Rule 45 of the Rules
of Court, in which only questions of law may be raised (Reyes
u. Mauricio, 636 SCRA 79, 85).
9. The determination of whether or not there exists
a perfected contract of sale is essentially a question of fact
(Hyatt Escalators Corporation u. Cathedral Heights Building
Complex Association, Inc., 636 SCRA 401, 405). Also, the issue
of whether or not a contract is simulated involves questions of
fact (Tanchuling u. Cantela, G.R. No. 209284, November 10,
2015).
10. A determination whether or not a worker abandoned
his work raises a question of fact best left to the lower courts
606 CML PROCEDURE, VOLUMEI
THE BAR LECTURES SERIES
and not to be raised in the Supreme Court (Tamblot Security
& General Services, Inc. v. Item, G.R. No. 199314, December 7,
2015).
11. Whether or not there was a delay by one party in the
performance of his obligation involves a question of fact which
the Supreme Court will not take cognizance of (Republic v.
Looyilkd/G.R. No. 170966, Jurie22, 2016).
,,, ..
12. Whether or not a party is liable for poor workmanship,
utilization of inferior materials and delay is an issue which
requires the reexamination of the evidence, hence, raises a
question of fact, not of law (Star Electric Corporation v. R
& G Construction Development and Trading, Inc., G.R. No.
212058, December 7, 2015).
13. A determination whether or not the bus of the
petitioner was "out-of-line" or a holder of a franchise raises
question of facts and does not fall within the review power of
the Court (Travel & Tours Advisers, Incorporated v. Cruz, Sr.,
G.R. No. 199282, March 14, 2016).
14. The issue of negligence, for instance, is factual in
nature. Whether a person is negligent or not is a question of
fact which, as a general rule, will not be passed upon by the
Supreme Court.
15. The issue of whether or not the employer dismissed
an employee for a valid cause is a question of fact not reviewable
under Rule 45 (See Distribution & Control Products, Inc. v.
Santos, G.R. No. 212616, July 10, 2017).
16. The issue of whether or not it was the plaintiff or the
defendant who did not yield the right of way is a factual one
(Rebultan v. Spouses Daganta, G.R. No. �97908, July 4,_2018).
17. A petition raising as an issue the credibility of the
prosecution witnesses and the relevance and admissibility of
the evidence presented by the prosecution, involves questions
of fact (Adlawan v. People, G.R. No. 197645, April 18, 2018).
A petition which seeks the reevaluation of the credibility of
uestion of fact properly within the domain
Zaza v. People, G.R. No. 217722, September
. not an absolute one. For instance, when the findings of facts
CHAPTERIX 607
POST JUDGMENT REMEDIES
18. A petition asking the Court to revisit and assess
anew the factual findings of the Court of Appeals and the
NLRC that the injury of the worker was not work-related
is not proper in a Rule 45 appeal (Guerrero v. Philippine
Transmarine Carriers, Inc., G.R. No. 222523, October 3, 2018).
Referral to the Court of Appeals
If a Rule. 45 appeal, which rai�es a question of fac( is
taken to the Supreme Court from the Regional Trial Coti;rt,
the appeal may be denied by the Court on its own initiative
because of the settled rule that only questions of law may
be entertained in a petition for review on certiorari (Asian
Terminals, Inc. v. Simon Enterprises, Inc., 692 SCRA 87, 96,
February 27, 2013).
The Court, however, instead of denying the appeal,
has another option. It may refer the appeal to the Court of
Appeals. "An appeal by certiorari taken to the Supreme Court
from the Regional Trial Court submitting issues of fact may
be referred to the Court of Appeals for decision or appropriate
action. The determination of the Supreme Court on whether
or not issues of fact are involved shall be final" (Sec. 6, Rule
56, Rules of Court).
When questions of fact may be passed upon in a Rule 45
petition
1. Remember the general rule that the Supreme Court
cannot pass upon, in a petition for review on certiorari (Rule
45), factual findings of a lower court since its jurisdiction
is limited to reviewing errors of law (Natividad v. MTRCB,
540 SCRA 124, 135; Mendoza v. De las Santos, 694 SCRA
74, 82, March 20, 2013). The review does not -extend to the
reevaluation of the evidence upon which the lower courts and/
or the quasi-judicial agencies had based their determination
(Mallo v. Southeast Asian College, Inc., G.R. No. 212861,
October 14, 2015; See also Felicilda u. Uy, G.R. No. 221241,
September 14, 2016).
2. The rule barring the raising of questions of fact is
 CIVIL PROCEDURE, VOLUME I
608
THE BAR LECTURES SERIES
of the Court of Appeals are contrary to those of the Regional
Trial Court, the Court may entertain and resolve questions
of facts (See Dutch Movers, Inc. v. Lequin, G.R. No. 210032,
April 25, 2017). The Court, in a Rule 45 petition may be
compelled to examine the evidence on record when, for
instance, the findings of the Labor Arbiter are in conflict with
th,ose of the NLRC and the CA (Maunlad Trans.Jnc: v. Isidro,
(JR. No. 222699, July 24, 2017). Also, when thefindings of
facts are premised on the supposed absence of evidence and
contradicted by the evidence on record and when the Court
of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would
justify a different conclusion, the general rule that only legal
issues may be raised in a Rule 45 petition, does not apply and
the court retains the authority to pass upon the evidence (The
Heirs of Donton v. Stier, G.R. No. 216491, August 24, 2017).
3. Case law has specified the following instances when
questions of fact may be entertained by the Court in a Rule 45
petition:
(a) The conclusion of the Court of Appeals is
grounded entirely on speculations, surmises and
conjectures;
(b) The inference made is manifestly mistaken,
absurd or impossible;
(c) There is a grave abuse of discretion;
(d) The judgment is based on misapprehension of
facts;
(�) The findin�s of facts are conflicting;
(f) The Court of Appeals, in making its findings,
went beyond the issues of the case and the same is
contrary to the admissions of both appellant and appellee;
(g) The findings of fact of the Court of Appeals are
contrary to those of the trial court;
(h) The :findings of fact are conclusions without
citation of specific evidence on which they are based;
CHAPTERIX 609
POST JUDGMENT REMEDIES
(i) The facts set forth in the petition, as well as in
the petitioner's main and reply briefs, are not disputed by
the respondents; or
(j) The findings of fact of the Court of Appeals
are premised on the supposed absence of evidence and
contradicted by the evidence on record (Philippine
Transmar.ine Carriers, Inc. v: Cristino, G.R. No. 188638,
Dece,lber 9, 2015; Borromeo �'. Family Care Hospital,' In�.,
G.R. No. 191018, January 25, 2016; Metropolitan Bank
and Trust Company v. Fadcor, Inc., G.R. No. 197970,
January 25, 2016; Techno Development & Chemical
Corporation v. Viking Metal Industries, Incorporated,
G.R. No. 203179, July 4, 2016; Ambray v. Tsourous,
G.R. No. 209264, July 5, 2016; See also Swire Realty
Development Corporation v. Specialty Contracts General
and Construction Services, Inc., G.R. No. 188027, August
9, 2017; See also Neri v. Yu, G.R. No. 230831, September
5, 2018).
The above exceptions similarly apply in petitions for
review filed before the Supreme Court involving civil, labor,
tax or criminal cases (Cu v. Ventura, G.R. No. 224567,
September 26, 2018).
Appeals in criminal cases
In criminal cases, the Supreme Court in a petition for
review on certiorari under Rule 45 may deal with questions
of fact. The rule, that only questions of law may be raised in
a Rule 45 petition in an appeal of a criminal conviction before
the Supreme Cou_rt, is not controlling. This is because the
appeal opens the entire records of the criminal case for review.
The implication is that the Court is not limited to reviewing
questions of law. In its review of the case, the Court may even
examine any error even if not assigned by the accused. This
error may include errors of fact (See Casana v. People, G.R.
No. 179757, September 13, 20.l7).
610 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Appeal ·from a judgment in a petition for a Writ of Amparo or
Writ of Habeas Data; Writ of Kalikasan
1. Any party, in a petition for a writ of amparo, may
appeal from the final order or judgment of the court to the
Supreme Court under Rule 45. Although Rule 45 mandates
raising only questions-of law (Sec. 1, Rule 45, Rules of Court),
an appeal from a j'udginent in a petition for Et writ of amparo, ',;:
by way of exception to the general rule under Rule 45, may
raise not only questions of law but also questions of fact, or
both questions of law and fact (Sec. 19, Rules on the Writ of
Amparo, Effective October 24, 2007).
2. Also, an appeal from a judgment in a petition for
writ of habeas data may be appealed to the Supreme Court
under Rule 45. Said appeal may, likewise, raise questions of
fact or law, or both (Sec. 19, Rules on the Writ of Habeas Data,
Effective February 2, 2008). Bar 2009
3. An appeal to the Supreme Court under Rule 45 in
a petition for a writ of kalikasan may raise questions of fact
(Sec. 16, Rule 7, Rules on the Writ of Kalikasan, Part III, Rules
of Procedure for Environniental Cases).
Certiorari under Rule 45 is not the certiorari under Rule 65
(Bar 1998; 1999)
The certiorari under Rule 45 (appeal by certiorari or
petition for review on certiorari) should not be confused with
certiorari under Rule 65 (petition for certiorari). The following
are the distinctions:
(a) Certiorari under Rule 45 is a mode �f appeal
(Sec. 2[c], Rule 41, Rules of Court). It is a continuation of
the case subject of the appeal (Manalo v. Ateneo de Naga
University, G.R. No. 185058, November 9, 2015); A petition
for certiorari under Rule 65 is a special civil action that
is an original action and not a mode of appeal (Rule 65,
Rules of Court; See KEPCO Philippines Corporation v.
Commissioner of Internal Revenue, 636' SCRA 166, 174).
It is independent of the case that gave rise to the assailed
CHAPTER IX 611
POST JUDGMENT REMEDIES
ruling (Manalo v. Ateneo de Naga University, G.R. No.
185058, November 9, 2015);
(b) Certiorari under Rule 45 seeks to review final
judgments or final orders since it is a mode of appeal;
Certiorari under Rule 65 may be directed against an
interlocutory order or matters where no appeal . may
. be
f
taken rom (Sec. 1, Rule·.:41, Rules of Court).
(c) Certiorari under Rule 45 raises only questions
of law (Marasigan v. Fuentes, G.R. No. 201310; January
11, 2016); Certiorari under Rule 65 raises questions of
jurisdiction specifically because a tribunal, board or
officer exercising judicial or quasi-judicial functions
has acted without jurisdiction, in excess of jurisdiction,
or with grave abuse of discretion amounting to lack of
jurisdiction (Sec. 1, Rule 65, Rules of Court).
(d) An appeal by certiorari under Rule 45 shall.
be filed within 15 days from notice of judgment, final
order or resolution appealed from (Sec. 2, Rule 45, Rules
of Court); A petition for certiorari under Rule 65 shall
be filed not later than 60 days from notice of judgment,
order or resolution sought to be assailed. In case .a motion
for reconsideration or new trial is timely filed, whether
such motion is required or not, the 60-day period shall
be counted from notice of denial of said motion (Sec. 4,
Rule 65, Rules of Court; Systems Factors Corporation v.
NLRC, 346 SCRA 149, 152; Ong v. Bognalbal, G.R. No.
149140, 501 SCRA 490).
(e) Certiorari under Rule 45 does not require
a prior motion for reconsideration; Certiorari under
Rule 65 requires, as a general rule, a prior motion for:
reconsideration (Progressive Development Corporation,
Inc. v. Court of Appeals, 301 SCRA 637, 647; Bases
Conversion and Development Authority v. Uy, supra).
(f) Certiorari under Rule 45 stays the judgment
appealed from; Certiorari under Rule 65 does not stay the
judgment or order subject of the petition, unless enjoined
or restrained (Sec. 7, Rule 65, Rules of Court).
 CIVIL PROCEDURE, VOLUME I
612
THE BAR LECTURES SERIES
(g) In certiorari under Rule 45, the parties are the
original parties with the appealing party as the petitioner
and the adverse party as respondent without impleading
the lower court or its judge (Sec. 4[a], Rule 45, Rules of
Court; Cebu Women's .Club u. De la Victoria,. 327 SCRA
533, 538); In certiorari under Rule 65, the tribunal, board,
officer exi:lrcising judicial or q«itsicjudicial functions js
impleaded as respondent (Sec. 5, Rule 65, Rules of Court).
Under Rule 45, the petitioner and respondent are
also the original parties to the action in the lower court;
Under Rule 65, the parties are the aggrieved party
against the lower court or quasi-judicial agency and the
prevailing parties, who thereby respectively become the
petitioner and respondents (Yasuda v. Court of Appeals,
330 SCRA 385).
(h) Certiorari under Rule 45 is filed only with the
Supreme Court (Sec. 1, Rule 45, Rules of Court); Certiorari
under Rule 65 may be filed with other courts like the
Regional Trial Court (Sec. 21, B.P. 129 as amended) and
the Court of Appeals (Sec. 9, B.P. 129 as amended) aside
from the Supreme Court (Sec. 5[1], Art. VIII, Constitution
of the Philippines);
As a rule, a party cannot simultaneously file a petition
both under Rules 45 · and 65 of the Rules of Court because
said procedural rules pertain to different remedies and have
distinct applications. The remedy of appeal under Rule 45 and
an original action for certiorari under Rule 65 are mutually
exclusive, and not alternative or cumulative. Thus, a party
should not join both petitions in on� pleading. When a party
adopts an improper remedy, his petition may be dismissed
outright (Nagkahiusang Mamumuo sa PICOP Resources, Inc.
v. Court of Appeals, 506 SCRA 542, 551; Villamar-Sandoval
u. Cailipan, 692 SCRA 339, 344, March 4, 2013; Guzman u.
Guzman, 693 SCRA 318, 326-327, March 13, 2013).
However, the Court may set aside technicality for
justifiable reasons as when the petition before the court is
clearly meritorious arid filed on time both under Rules 45
CHAPTERIX 613
POST JUDGMENT REMEDIES
and 65. In accordance with the liberal spirit which pervades
the Rules of Court and in the interest of justice, the Court
may treat the petition as having been filed under Rule 45
(International Corporate Bank, Inc. u. Court of Appeals, 501
SCRA 20, 28-29).
. is treated as a Rule 4� petition
When a Rule 65 petitioo
�, ��·
1. The rule is that the filing of a specialcivil 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 (Indoyon, Jr. v.
Court of Appeals, 693 SCRA 201, 208, March 12, 2013).
2. On several occasions, however, the Court has treated
a petition for certiorari (Rule 65) as a petition for review on
certiorari (Rule 45) when: (a) the petition has been filed within
the 15-day period 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; or (e) the questioned
decision or order amounts to an oppressive exercise of judicial
authority (Dongon v. Rapid 111overs and Forwarders Co., Inc.,
G.R. No. 163431, August 28, 2013; City of Manila v. Grecia-­
Cuerdo, G.R. No. 175723, February 4, 2014).
When "to appeal
The appeal, which shall be in the form of a verified
petition, shall be filed within 15 days from notice of the
judgment, final order or resolution appealed from, or within
15 days from notice of the denial of the petitioner's motion for
new trial or metion for reconsideration filed in due time (Sec.
2, Rule 45, Rules of Court).
When extension of period to file is allowed
The Supreme Court may, for justifiable reasons, grant
an extension of 30 days only within which to file the petition
provided (a) there is a motion for extension of time duly filed
and served, (b) there is full payment of the docket and other
614 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
lawful fees and the deposit for costs, and (c) the motion is filed
and served and the payment is made before the expiration of
the reglementary period (Sec. 2, Rule 45, Rules of Court).
How to appeal
1. The petitioner shall file a verified petition with
the Supre�:e Court within the rJglementary period raising
therein only questions of law (Sec. 1, Rule 45, Rules of Court).
2. The petitioner shall pay to the clerk of court of the
Supreme Court the docket and other lawful fees as well as
the deposit in the amount of P500 for costs. Proof of service
of a copy of the petition on the lower court concerned and the
adverse party shall be submitted together with the petition
(Sec. 3, Rule 45, Rules of Court).
The petition shall contain all the matters mentioned in
Sec. 4 of Rule 45 including compliance with the material data
rule which requires the petitioner to indicate the material
dates showing when notice of the judgment, final order or
resolution subject of the petition was received and when a
motion for new trial or motion for reconsideration, if any,
was filed and when notice of the denial thereof was received.
Among others, the petition must also be accompanied by a
certification against forum shopping as provided for in Sec.
2 of Rule 42 (Sec. 4, Rule 45, Rules of Court). The petition
does not require the attachment of all pleadings filed before
the lower courts. Only the judgment or final order must be
attached. The lower courts or judges are not to be impleaded
either as petitioners or respondents (Nightowl Watchman &
SecuriJy Agency, Inc. u. Lumahan, G.R. No. 212096, October
· Secretary (Spouses Nicolas and Sarigumba u. Agrari9,n
14, 2015).
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 its
dismissal (Sec. 5, Rule 45, Rules of Court).
CHAPTER IX .. 615
POST JUDGMENT REMEDIES
3. The Supreme Court may, on its own initiative, deny
the petition on the ground that (a) the appeal is without merit,
(b) is prosecuted manifestly for delay, or (c) that the questions
raised therein are too unsubstantial to require consideration
(Sec. 5, Rule 45, Rules of Court).
For p�rposes of determining whether the petition· should
b� denied or given, dtie course, the Suprei;ne Court may
require the filing ofsuch pleadings, briefs/meril.oranda or the
submission of documents as it may deem necessary (Sec. 7,
Rule 45, Rules of Court).
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 15 days from notice (Sec. 8, Rule
45, Rules of Court).
E. Other Appeals/Reviews
Appeals from quasi-judicial bodies (Rule 43)
1. Appeals from judgments and final orders of quasi­
judicial bodies/agencies, enumerated in Rule 43, are now
required to be brought to the Court of Appeals under the
requirements and conditions set forth in Rule 43. This rule
was adopted precisely to provide a uniform rule of appellate
procedure from quasi-judicial bodies (Carpio v. Sulu Resourc
Dev. Corp., 387 SCRA 128, 138-139; Callo-Trinidad·v. Esteban,
694 SCRA 185, 196, March 20, 2013; See also Bintudan u.
Commission on Audit, G.R. No. 211937, March 21, 2017).
It has also been held that Rule 43 is the correct mode
of appeal for decisions, orders, or resolutions of the DAR
Reform Beneficiaries Association, G.R. No. 179566, October
19, 2016; Cortal v. Inaki A. Larrazabal Enterprises, G.R. No.
199107, August 30, 2017).
2. The appeal under Rule 43 may be taken to the Court
of Appeals whether the appeal involves a question of_ fact, a
question of law, or mixed questions of fact and law (Sec. 3,
Rule 43, Rules of Court). The appeal shall be taken by filing
616 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
a verified petition for review with the Court of Appeals (Sec.
5, Rule 43, Rules of Court), within 15 days from notice of the
award, judgment, final order or resolution (Sec. 4, Rule 43,
Rules of Court; Cortal v. Inaki A.· Larrazabal Enterprises, G.R.
No. 199107, August 30, 2017).
3. The appeal under Rule 43 presupposes that the issue
raised· is one of error of judime:b.t which may be ohe of fact,
i:l'>
law, or mixed fact and law. But where the act imputed against
it
the administrative or quasi-judicial body enumerated in Rule
'
43 is one committed with grave abuse or discretion, Rule 43
does not apply. For instance, it is true that judgments or final
orders of the Office of the President may be brought to. the
Court of Appeals by filing a verified petition under Rule 43.
However, where the final order of the Office of the President
modified a decision of a lower body that had already become
final and executory, there is a grave abuse of discretion on its
part. Hence, what is involved here is an error of jurisdiction
that is reviewable by certiorari, and no longer an error of
judgment which is reviewable by appeal under Rule 43
(See lVIultinational Village Homeowners' Association, Inc. v.
Gacutan, G.R. No. 188307, August 2, 2017).
Award or judgment not stayed by the appeal
The appeal shall not stay the award, judgment, final
order or resolution sought to be review'ed, unless the Court
of Appeals shall direct otherwise upon such terms as it may
deem just (Sec. 12, Rule 43, Rules of Court). This means
that the judgment may be subject to execution despite the
pendency of the appeal, unless execution is enjoined by a writ
of preliminary injunction or a temporary restraining order.
Review o·i' decisions of the National labor Relations
Commission [NLRC] (Bar 2006; 2013; 20'17)
1. Judicial review of decisions of the National Labor
Relations Commission is permitted. However, this review is
not through an appeal (Manalo v. Ateneo de Naga University,
G.R. No. 185058, November 9, 2015). The remedy of a party
aggrieved by the decision of the N::i.tional Labor Relations
CHAPTER IX · 617
POST JUDGMENT REMEDIES
Commission is to promptly move for the reconsideration of
the decision and, if denied, to timely file a special civil action
for 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 (St. Martin Funeral Homes u. NLRC, 295 SCRA 494,
508-509; Fuji Television Network, Inq, v. Espiritu, G.R. Nos.
204944-45, December 3, 2014; Espere v. NFD International
Manning Agents, G.R. No. 212098, July 26, 2017; Concejero
u. Court of Appeals, G.R. No. 223262, September 11, 2017;
Gabriel u. Petron Corporation, G.R. No. 194575, April 11,
. 2018).
The review of the decision of the NLRC by the CA under
Rule 65 is not an appeal but a special civil action of certiorari
which is an original action. A special civil action for certiorari
is not the same as an appeal. In an appeal, the appellate court
reviews errors of judgments. On the other hand, a petition
for certiorari reviews errors of jurisdiction like grave abuse of
discretion (See Philippine National Banh v. Gregorio, G.R. No.
194944, September 18, 2017).
2. 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 question� of fact and law (Philippine
National Bank v. Gregorio, G.R. No. 194944, September 18,
2017 Gabriel v. Petron Corporation, G.R. No. 194575, April
11, 2018). In other words, factual matters and concerns are
not within the ambit of such judicial inquiry. Issues raised
shall be confined to errors of jurisdiction or grave abuse of
discretion (Espere v. NFP. International ivfanning Agents,
G.R. No. 212098, July 26, 2017). The errors of judgment of the
NLRC are not reviewed in a special civil action for certiorari
under Rule 65. The matters reviewed are its acts done with
grave abuse of discretion amounting to lack of jurisdiction.
For example, in labor disputes, grave abuse of discretion may
be ascribed to the NLRC when, among others: (1) its findings
and conclusions are not supported by substantial evidence or
in total disregard of evidence material to, or even decisive of,
618 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
the controversy; or (2) the findings of the NLRC contradict
those of the Labor Arbiter (See Almagro v. Philippine Airlines,
Inc., G.R. No. 204803, September 12, 2018).
While the rule is that the Court of Appeals, in the
exercise of its certiorari jurisdiction, is limited to determining
whether or not the NLRC committed grave abuse of discretion
amounting to lack of jurisdiction, such rule· should not be
i;;,terpreted rigidly. A rii'id interpretation of the· rule, held the
Court, "does not fully conform with the prevailing case law
x x x." The Court has clarified that the Court of Appeals, in the
exercise of such jurisdiction, can review the factual findings or
even the legal conclusions of the NLRC. There is no dispute
that the Court of Appeals can make a determination whether
the factual findings by the NLRC were based on the evidence
and in accord with pertinent law and jurisprudence (Laya,
Jr. v. Court of Appeals, G.R. No. 205813, January 10, 2018).
Such determination could be done because grave abuse of
discretion may be ascribed to the NLRC when its findings and
conclusions are not supported by substantial evidence or are
in total disregard of the evidence material to or decisive of the
controversy (See E. Ganzon, Inc. [EGIJ v. Ando, Jr., G.R. No.
214183, February 20, 2017).
Decision not stayed by the filing of the petition
The petition for certiorari filed to review the decisions of
the National Labor Relations Commission shall not stay the
execution of the assailed decision unless a restraining order is
issued by the Court of Appeals (Frondozo v. Manila Electric
Company, G.R. No. 178379, August 22, 2017). The ruling is
consistent with Sec. 7 of Rule 65 which provides that the filing
of the petition for certiorari does 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 with the case.
Appeal to the Supreme Court
From the Court of Appeals, the remedy of the aggrieved
party is an appeal via a petition for review on certiorari
CHAPTER IX 619
POST JUDGMENT REMEDIES
to the Supreme Court under Rule 45 of the Rules of Court
(Laya, Jr. v. Court of Appeals, G.R. No. 205813, January 10,
2018). In the Supreme Court, only questions of law may be
raised (Section 1, Rule 45, Rules of Court). Rule 45 limits
the review to questions of law raised against the assailed
decision of the Court of Appeals. When the Supreme Court
reviews the findings of the Court of Appeals, it does not,
as a rule,:.:determine whether or. not-the NLRC decision on
the merits was correct. What the Supreme Court reviews is
the correctness of the decision of the Court of Appeals, i.e.,
whether or not it correctly determined the presence or absenc
of grave abuse of discretion in th,e NLRC decision (E. Ganzon,
Inc. [EGIJ v. Ando, Jr., G.R. No. 214183, February 20, 2017).
This rule, again, appears to be only a general precept becaus
if the Court finds it necessary, it may competently delve int
the propriety of the factual review not only by the Court of
Appeals but also by the NLRC. Such ability, according to th
Court, is pursuant to the exercise of its review jurisdiction
over administrative findings of fact (See Laya, Jr. v. Court of
Appeals, G.R. No. 205813, January 10, 2018; citations of th
Court, omitted).
Review of decisions of voluntary arbitrators in labor cases
At issue in one case was whether or not the decision of a
voluntary arbitrator in Jabor cases is appealable under Rule
43 of the Rules of Court.
Sec. 2 of Rule 43 provides that Rule 43 does not apply
to judgments or final orders issued under the Labor Code of
the Philippines. This provision was invoked by the petitioner
labor union in one case when it questioned before the Supreme
Court the p-.ropriety of a petition for review under Rule 43 filed
with the Court of Appeals by the respondent-employer from
the decision of the voluntary arbitrator.
The Court sustained the respondent and held that such
procedural issue is not novel. Citing its previous pronounce­
ments, the Court categorically declared that a petitioq for re­
view under Rule 43 is the proper remedy "just like those of the
quasi-judicial agencies, boards and commissions enumerated
620 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
therein,· and consistent with the original purpose to provide a
uniform procedure for the appellate review of adjudications
of all quasi-judicial entities" (Royal Plant Workers Union u.
Coca-Cola Bottlers Philippines, Inc.-Cebu Plant, G.R. No.
198783, April 15, 2013).
/:'ppeals from the �fJnqi,ganbayan
1. Decision/ and final orders of �he Sandiganbayan
shall be appealable to tlie Supreme Court };)y way of a petition
for review on certiorari under Rule 45 raising pure questions
of law. Certiorari under Rule 65 is not the remedy (Sec. 1,
Rule 45, Rules of Couft; People u. Espinosa, 409 SCRA 256,
261; See also Republic u. Panganiban, G.R. No. 189590, April
23, 2018).
2. Sec. 7 of P.D. 1606, as amended by R.A. 7975 and
R.A. 8249, provides:
"Decisions and final orders of the Sandiganbayan
shall be appealable to the Supreme Court by petition
for review on certiorari raising pure questions of law in
accordance with Rule 45 of the Rules of Court. Whenever,
in any case decided by the Sandiganbayan, the penalty of
reclusion perpetua, life imprisonment or death is imposed,
the decision shall be appealable to the Supreme Court in
the manner prescribed in the Rules of Court."
. .
3. 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 (Typoco, Jr. u. People, G.R. No.
221857, August 16, 2017). Issues brought to the Court on
whether the prosecution was able to prove the accused beyond
reasonable doubt, whether the presumption of innocence
was sufficiently debunked, whether or not conspiracy was
satisfactorily established, or whether or not good faith was
properly appreciated, are all, invariably, questions of fact.
Hence, as a rule, the findings of the Sandiganbayan on the
foregoing matters are deemed conclusive (Lihaylihay u.
People, G.R. No. 191219, July 31, 2013).
CHAPTER IX 621
POST JUDGMENT REMEDIES
Review of the rulings of the Ombudsman (Bar 2006; 2015)
1. The rulings of the Office of the Ombudsman may
either be in (a) 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 vii Rule 43 (Jason ui,Office of the Ombudsman, G.R.
Nos. 197433 and 197435, August 9, 2017). In these cases, the
mode of review is appeal. The appeal· may raise questions of
fact, of law, or mixed questions of fact and law (Sec. 3, Rul
43, Rules of Court). The appeal, however, shall not stay
the award, judgment, final order or resolution sought to b
reviewed unless the Court of Appeals shall direct otherwise
upon such terms as it may deem just (Sec. 12, Rule 43, Rules
of Court). To stay the judgment, the appellant has to secur·
from the Court of Appeals a writ of preliminary injunction or
a temporary restraining order.
The provision of Sec. 27 of R.A. 6770 (The Ombudsman
Act of 1987) insofar as it allowed a direct appeal to the Supreme
Court from the Office of the Ombudsman was declared invalid
in Fabian u. Desierto because the statute, which increased
the appellate jurisdiction of the Supreme Court, was enacted
without the advice and concurrence of the Court. Sec. 30 of
Art. VI of the Constitution of the Philippines-provides that,
"No law shall be passed increasing the appellate jurisdiction
of the Supreme Court as provided in this. Constitution without
its advice and concurrence" (Fabian u. Desierto, 295 SCRA
470). Instead, appeals from decisions of the Ombudsman in
administrative disciplinary actions should be brought to the
Court of Appeals under Rule 43 (Enemecio u. Office -of the
Ombudsman, 419 SCRA 82; Pia u. Geruacio, G.R. No. 172334,
June 5, 2013; see Dator u. Carpio-Morales, G.R. No. 237742,
October 8, 2018). Bar 2006
(a) The Court of Appeals has jurisdiction over
orders, directives and decisions of the Office of the
Ombudsman in administrative disciplinary cases only.
It cannot,. therefore, review the orders, directives or
622 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
decisions of the Office of the Ombudsman in criminal or
non-administrative cases (Golangco v. Fung, Office of the
Ombudsman, 504 SCRA 321, 334).
v.
(b) In Belongilot Cua, 636 SCRA 34, 41, 42, the
mode of review from _the.decision of the Ombudsman was
reiterated, �hus:
XXX
"In Fabian, we ruled that appeals from the decisions
of the Office of the Ombudsman in administrative
disciplinary cases should be taken to the Court of
Appeals by way of a petition for review under Rule 43
of the 1997 Rules of Civil Procedure, as amended. This
ruling has been repeatedly reiterated in subsequent cases
and continues to be the controlling doctrine.
Here, petitioner's complaint is criminal in nature.
In Estrada v. Desierto, we held that the remedy of
aggrieved parties from resolutions of the Office of the
Ombudsman finding probable cause in criminal cases or
non-administrative cases. when tainted with grave abuse
of discretion. is to file an original action for certiorari
with this Court, not with the Court of Appeals. In cases
when the aggrieved party is questioning the Office of the
Ombudsman's finding oflack ofprobable cause, as in this
case, there is, likewise, the remedy of certiorari under
Rule 65 to be filed with this Court and not with the Court
ofAppeals. This ru"le was subsequently restated in Acuna
v. Deputy Ombudsman for Luzon where we held that the
remedy of an aggrieved party in criminal complaints
before the Ombudsman is to file with this Court a petition
for certiorari under Rule 65" (Underscoring supplied).
Note: Although, as a consequence of Fabian, appeals
from the Ombudsman in administrative cases are cognizable
by the Court of Appeals, nevertheless, in cases in which it
is alleged that the Ombudsman has acted with grave abuse
of discretion amounting to lack or excess of jurisdiction, a
special civil action for certiorari under Rule 65 may be filed
with the Supreme Court to set aside the Ombudsman's order
or resolution (Nava v. National Bureau of Investigation, 455
SCRA 377, 389).
CHAPTER IX 623
POST JUDGMENT REMEDIES
2. 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: The Court is not authorized to correct every
error or mistake of the Office· of the Ombudsman other than
gr�ve abuse of discretion (Villanueva v. Ople, 4f5 SCRA 539,
550). The remedy is not a petition for review on certiorari
under Rule 45 (Cabrera v. Lapid, 510 SCRA 55, 64) but a
petition for certiorari under Rule 65 (Salvador v. Mapa, 539
SCRA 34, 44).
Salvador v. Mapa emphatically declared:
"x x x We have ruled time and again, that a
petition for review on certiorari is not the proper mode
by which resolutions of the Ombudsman in preliminary
investigations of criminal cases are reviewed by this
Court. The remedy from the adverse resolution of the
Ombudsman is a petition for certiorari under Rule 65. not
a petition for review on certiorari under Rule 45" (Citing
Cabrera v. Lapid, 510 SCRA 55; underscoring supplied).
For example, a party aggrieved by the dismissal of a
criminal complaint by the Office of the Ombudsman, may
elevate the case to the Supreme Court via a special civil action
under Rule 65 of the Rules of Court if there is an allegation
of grave abuse of discretion amounting to lack of jurisdiction
(Jason v. Office of the Ombudsman, G.R. No. 197433 and
197435, August 9, 2017). Of course, the same remedy is
available to the respondent against whom probable cause has
been found by the Office of the Ombudsman.
When decision of the Ombudsman is final and unappealabie
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,
 624, CIVIL PROCEDURE, VOLUMEI
THE BAR LECTURES SERIES
suspension of not more than one month, or a fine equivalent
to one month salary (Almario-Templonuevo v. Office of the
Ombudsman, G.R. No. 198583, June 28, 2017).
Injunction orders by the Court of Appeals against the Office
of. the Ombudsman
In one. 'case, the Office of the:, Ombudsman, in assailing
an injunctitin order issued by the Court of Appeals, argued
that the said court possesses no authority to enjoin the
implementation of its suspension order against a city mayor.
The argument was based on Sec. 14, R.A. 6770, or the
Ombudsman Act, which reads:
"Section 14. Restrictions. - No writ of injunction
shall be issued by any court to delay an investigation
being conducted by the Ombudsman under this Act,
unless there is a prima facie evidence that the subject
matter of the investigation is outside the jurisdiction of
the Office of the Ombudsman.
"No court shall hear any appeal or application for
remedy against the decision or findings of the Ombudsman,
except the Supreme Court, on pure question of law."
The Court, however, sustained the authority of the Court
of Appeals in issuing injunction orders against the Office of
the Ombudsman.
The first paragraph of Sec. 14 of R.A. 6770 which prohi­
bited the issuance ofprovisional injunctive writs by courts other
than the Supreme Court to enjoin an investigation conducted
by the Office of the Ombudsman, was declared ineffective
pending the issuance by the Court of the appropriate rules. The
- Court explained that the first paragraph of Sec. 14, R.A. 6770
took away from the courts their power to issue a temporary
restraining order or a writ of preliminary injunction. It also
encroached upon the Court's constitutional rule-making
authority, undermined the constitutional allocation of powers
and diluted a court's ability to carry out its functions.
The second paragraph of Sec. 14 of R.A. 6770 was declared
unconstitutional m0inly because it was e�1acted without the
CHAPTERIX 625
POST JUDGMENT REMEDIES
advice and concurrence of the Supreme Court in violation of
Sec. 30, Art. VI of the Philippine Constitution which provides:
"No law shall be passed increasing the appellate jurisdiction
of the Supreme Court as provided in this Constitution without
its advice and concurrence" (Carpio-Morales v. Court of
Appeals, aR. Nos. 217126-27, November 10, 2015).
Appeals from judgi'nents of the Court of:Tax'Appeals (Bar
2006)
1. Under Sec. 11 of R.A. 9282, March 30, 2004, no civil
proceeding involving matters arising under the National
Internal Revenue Code, the Tariff and Customs Code, or
the Local Government Code shall be maintained, except as
provided, until and unless an appeal has been previously filed
with the Court of Tax Appeals and disposed of in accordanc
with the provisions of the Act.
If for example, the Regional Trial Court has ruled on
a local tax case, like one involving real property taxes, th
appellate jurisdiction of the Court of Tax Appeals becomes
operative pursuant to Sec. 7 of R.A. 9282. A taxpayer not
satisfied with the decision of the Regional Trial Court may file
a petition for review with the Court of Tax Appeals,· sitting as
a division. The decision, ruling or resolution of the Court of
Tax Appeals sitting as a division may further be reviewed by
the Court of Tax· Appeals en bane (Herarc Realty Corporation
v. The Provincial Treasurer of Batangas, G.R. No. 210736,
September 5, 2018). A party adversely affected by a resolution
of a Division of the CTA, on a motion for reconsideration or
new trial, may file a petition for review with the CTA en bane.
Bar 2009. Litigants are reminded that in order for the Court
of Tax appeals en bane to take cognizance of an appeal via a
petition for review, a timely motion for reconsideration or new
trial must first be filed with the Court of Tax appeals division
that issued the assailed decision or resolution. Failure to do
so is a ground for dismissal of the appeal. The filing of the
proper motion is mandatory, not merely directory (Asiatrust
f.
Development Bank, Inc. u. Commissioner of Internal Revenue,
C.R. No. 20.l530, April 19, 2017).
626 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
2. Sec. 11 of the same Act further provides that a party
adversely affected by a decision or ruling of the CTA en bane
may file with the Supreme Court a verified petition for review
on certiorari pursuant to Rule 45 of the 1997 Rules of Civil
Procedure (See Herarc Realty Corporation v. The Provincial
Treasurer of Batangas, G.R. No. 210736, September 5, 2018).
Review ofjudgments of the Commission on Elections· (Bar
2011)
1. A judgment, resolution or final order of the
Commission on Elections may be brought by the aggrieved
party to the Supreme Court on certiorari under Rule 65 (Sec.
2, Rule 64, Rules of Court) by filing the petition within 30 days
from notice of such judgment, resolution or final order (Sec. 3,
Rule 64, Rules of Court). A petition filed beyond said period is
deemed filed out of time (Chua v. Commission on Elections,
G.R. No. 236573, August 14, 2018).
2. The above rule has been held not to be encompassing
since not all petitions for the review of judgments or final
orders of these commissions should be filed under Rule 64.
For instance, the ruling of the Commission on Elections
en bane choosing the winning bidder for election equipment
are not reviewable under Rule 64 since in this case, the
Commission is not resolving an election controversy but merely·
performing its function to procure the necessary election
paraphernalia. Under the protest mechanism of Sec. 58 of
R.A. 9184 (Government Procurement Reform Act), protests on
the final decision of the head of the procuring entity should
be addressed to the Regional Trial Court under Rule 65 of the
1997 Rules of Civil Procedure. The Court explained that "x x x
Though the provision appears unambiguous and unequivocal,
the Court has consistently held that the phrase "decision,
order, or ruling)' of constitutional commissions, x x x that may
be brought directly to the Supreme Court on certiorari is not
all-.encompassing, and that it only relates to those rendered in
the commissions' exercise of adjudicatory or quasi-judicial
po vvers. In the case of the COMELEC, this would limit the
CHAPTER IX 627
POST JUDGMENT REMEDIES
provision's coverage to the decisions, orders, or rulings issued
pursuant to its authority to be the sole judge of generally all
controversies and contests relating to the elections, returns,
and qualifications of elective offices." (Querubin v. Commission
on Elections En Banc, G.R. No. 218787, December 8, 2015).
Thus, in a _petition questioning the validity of certain
rules and regulittio�s issued by the Co.inmission on Election$.
regulating the carriage of firearms during the election period,:
the Court affirmed the rule that Rule 64 applies only to final
orders, rulings and decisions of the Commission en bane in
the exercise of its adjudicatory and quasi-judicial powers
and not to those rulings or decisions issued under its rule­
making power. It does not apply to the rules issued by the
Commission on the carriage of firearms. The appropriat
remedy to question the validity of the regulations issued by
the Commission is a petition for declaratory relief under Rul
63 (See Philippine Association of Detective and Protectiu
Agency Operators [PADPAOJ, Region 7 Chapter, Inc., G.R. No.
223505, October 3, 2017).
3. The review by the Supreme Court is limited only
to jurisdictional issues. Findings of fact of the commission,
supported by substantial evidence, shall be final and non­
reviewable (Mitra v. Commission on Elections, 622 SCRA
744, 766-767). In other words, in a petition for certiorari
under Rule 64, in relation to Rule 65, the primordial issue
is whether or not the commission committed a grave abuse
of discretion amounting to lack of jurisdiction in issuing the
assailed resolution (Albania v. Commission on Elections, G.R.
No. 226792, June 6, 2017). The Court is not a trier of facts and
only steps in when there is a showing that the Commission
committed grave abuse of discretion amounting to lack or
excess of jurisdiction (Maturan v. Commission on Elections,
G.R. No. 227155, March 28, 2017).
Review of judgments 01' the Commission on Audit (Bar 20'i 1}
1. A judgment, resolution or final order of the
Commission on Audit may be brought by the 1?-ggrieved party
628 CMLP ROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
to the Supreme Court on certiorari under Rule 65 (Sec. 2, Rule
64, Rules of Court) by filing the petition within 30 days from
notice (Sec. 3, Rule 64, Rules of Court).
2. Jurisprudence affirms that decisions and resolutions
of the COA are reviewable by the Supreme Court, not via an ·
appeal l>y certiorari under Rule 45, but through a special civil
action for certiorari under'Rule 64 in relation to Rule65 of the
Rules of Court (Reblora i). Armed Forces of the Philippines,
G.R: No. 195842, June 18, 2013). Hence, the filing•of a petition
in the Supreme Court under Rule 45 of the Rules of Court is
not the correct remedy (Fontanilla v. The Commission Proper,
Commission on Audit, G.R. No. 209714, June 21, 2016).
To warrant the issuance of the extraordinary writ of
certiorari under Rule 64 in relation to Rule 65 of the Rules of
Court, and set aside the decision of the Commission on Audit,
the petitioner must show that the Commission acted without
or in excess of its jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction (Nayong Pilipino
Foundation, Inc., G.R. No. 213200, September 19, 2017).
Only when the commission has acted without or in excess
of jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, may the Court entertain a
petition for certiorari (Bintudan v. Commission on Audit, G.R.
No. 211037, March 21, 2017).
3. Not all decisions of the Commission on Audit requires
a review under Rule which should apply only to acts of the
Commission in relation to its constitutional duty as guardians
of the public funds and not to other acts. Hence, Note, in
administrative disciplinary case decided by the Commission
on Audit, th� proper remedy of the adverse party, in case of an
adverse decision, is an appeal to the Civil Service Commission
and not a Rule 65 petition to the Supreme Court (Galindo v.
Commission on Audit, G.R. No. 210788, January 10, 2017).
Appeals from judgments of the Civil Service Commission
(Bar 20'!4}
A judgment, final order or resolution of the Civil Service
Commission may be taken to the Court of Appeals under
CHAPTERIX 629
POST JUDGMENT REMEDIES
Rule 43 of the Rules of Court (Secs. 1 and 3, Rule 43, Rules of
Court). The appeal shall be taken within 15 days from notice
(Sec. 4, Rule 43, Rules of Court). Note the difference between
the mode of review from a judgment of the Civil Service ·
Commission and the mode of review from the judgments of
other constitutional commissions.
froin judgments of the Office of the President·
',{
Appeals
The judgments, resolutions, or final orders of the Office
of the President may be taken to the Court of Appeals under
Rule 43 (Secs. 1 and 3, Rule 43, Rules of Court).
Review of the resolution of the Secretary of Justice; rule for
violations of tax and tariff laws
1. It has been held that courts cannot reverse th
findings of the Secretary of Justice except in clear cases of
grave abuse of discretion (Unilever Philippines, Inc. v. Tan
G.R. No. 179367, January 29, 2014). The Court of Appeals i
clothed with jurisdiction to review the resolution issued by th
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 (Alcaraz
v. Gonzalez, 533 Phil. 796 and Tan v. Matsuura, G.R. No.
i.-:: 179003, January 9, 2013, cited in Spouses Gaditano v. San
Miguel Corporation, G:R. No. 188767, July 24, 2013; See also
De Lima v. Reyes, G.R. No. 209330, January 11, 2016).
2. A petition for review under Rule 43 cannot b
brought to assail the resolution of the Secretary of Justic
dismissing a complaint for lack of probable cause. The petition
carr be brought only to review the decisions, resolutions or
awards by quasi-judicial bodies as specified in Sec. 1 of Ru1
43. The Secretary of Justice is not an officer exercising quasi­
judicial functions (De Lima v. Reyes, ibid.). Earlier, in Alcaraz
v. Gonzalez, 502 SCRA 518, the Court agreed with petitioner's
contention that the respondent resorted to an imprope
remedy when he filed a petition for review under Rule 43 of
the Rules of Court, instead of filing a petition for certiora.n:
under Rule 65.
630 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
A later case, confirmed the above rule. It was ruled that
the Court of Appeals is clothed with the jurisdiction to review
the resolution issued by the Secretary of Justice through a
petition for certiorari under Rule 65 of the Rules cif Court,
solely on the ground that the Secretary committed grave abuse
of discretion amounting to lack of jurisdiction (Argovan v. ·san
Miguel Corporation, :•�.702SCRA 191, 197, July 2,4, 2013).
.,.. ,
.
.. . . .....
3. The rule, that the Court of Appeals 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.
It was declared by the Court, in a more recent case, that
the jurisdiction over a petition for certiorari assailing the DOJ
resolution in a preliminary investigation involving tax and
tariff offenses was transferred to the Court of Tax Appeals as
a consequence of R.A. 9282. The declaration by the Court was
made by virtue of Sec. 1, Art. VIII of the 1987 Constitution
defining judicial power as including the authority to determine
whether or not there has been a grave abuse of discretion on the
part of any branch or instrumentality of the Government, in
relation to Sec. 5(5), Art. VIII of the same Constitution vesting
upon the Court the power to promulgate rules concerning
practice and procedure in all courts. Accordingly, it is the
Court of Tax Appeals, not the Court of Appeals, which has
jurisdiction over the petition for certiorari assailing the DOJ
resolution of dismissal of the complaint-affidavit of the Bureau
of Customs against the private respondents for violation of
the Tariff and Customs Code of the Philippines (Bureau of
Customs u. Deuanadera, G.R. No. 193253, September 8, 2015).
Appeal t.o the Office of the President from the decision of
the DOJ
1. While judicial pronouncements do not allow
an appeal to the Court of Appeals 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.
. CHAPTER IX 631
POST JUDGMENT REMEDIES
2. 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 ar"
entertained by the Office of the President" tinder the followin
conditions which have to be established as jurisdictiqnal facts:
(a) The offense invblved is punishable by itecl�sio1
.i.
. . . .
pe,petua to death;
(b) New and material issues are raised whic11
were not previously presented before the Department of
Justice and were not hence, ruled upon;
(c) The prescription of the offense is not duo L(I
lapse within six months from notice of the questio11od
resolution; and
(d) The appeal or petition for review is filed wi'th l i 1
30 days from notice.
From the Office of the President, the aggrieved party mny
file an appeal with the Court of Appeals pursuant to Rule 1 1 B.
Under Sec. 1 of Rule 43, the final orders or resolutions of tlH
Office of the President is appealable to the Court of Appo11 I
by filing a verified petition for review following the procedL1 ,.
set by Secs. .5 and 6 of R1;1-le 43. Bar 20J4
3. The party aggrieved by the judgment, final ord01• Ill
resolution of the Court of Appeals may avail of an appertl Ii
certiorari (petition for review on certiorari) to the Supru1o11
Court under Rule 45.
F. Mode of Appeal to the Supreme Court
l. An appeal to the Supreme Court may be take11
by a petition for review on certiorari, except in criminal
where the penalty imposed is death, reclusion perpetua () Ill', 11
imprisonment (Sec. 3[BJ, Rule 56, Rules of Court; See Sec, .'!/11/,
Rule 122, .Rules of Court). This mode of appeal is that wbl,Jl1
prescribed in Rule 45, also known as "appeal by certio1·
the Supreme Court" (Sec. 1, Rule 45, Rules of Court).
632 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
2. Because of the above rule, "an appeal taken to the
Supreme Court by notice of appeal shall be dismissed" (Sec. 6,
Rule 56, Rules of Court).
3. The mode of appeal in Rule 45 is applicable to both
civil and criminal cases (Sec. 9, Rule 45, Rules of Court).
4. Note that the proper remedy of a party aggrieved by}
a decision of the 'Court of Appeals is a petition for review under,·
Rule 45, not a petition for certiorari under Rule 65. An appeal
under Rule 45 is, in essence, a continuation of the appellate
process over the original case (Albor v. Court of Appeals, G.R.
No. 196598, January 17, 2018).
II - REMEDIES AFTER A JUDGMENT
HAS BECOME FINAL AND EXECUTORY
1. The 1997 Rules of Civil Procedure provides the
following remedies for aggrieved parties against a judgment
that is already final and executory, namely: Bar 1995
(a) Petition for relief from judgment under Rule 38;
and
(b) Petition for annulment of a judgment under
Rule 47.
2. ln addition to the above, jurisprudence has,
likewise, recognized an additional relief through (a) a direct
action for certiorari under Rule 65, and (b) a collateral attack
of a judgment that is void on its face (Escareal v. Philippine
Airlines, Inc., 455 SCRA 119, 133).
A. Petition for Relief from Judgments
Orders or Other Proceedings (Rule 38)
Nature of the petition
1. Relief from judgment, more popularly known as
petition for relief, is a remedy provided by law to any person
against whom a decision or order is entered through fraud,
accident, mistake, or excusable negligence. This remedy is
equitable in character, allowed only in exceptional cases where
CHAPTERIX 6313,
POST JUDGMENT REMEDIES
there is no other available or adequate remedy provided by law
or by the rules (Cagayan Economic Zone Authority v. Meridien
Vista Gaming Corporation, G.R. No. 194962, January 27,
2016).
2. When a party has another remedy available to him,,
which may be either a motion for new trial or appealfrom an
adverse· decision of the tr1•1:l.l court, and he was not prevented
by fraud, accident, mistake or excusable negligence from filing
such motion or taking such appeal, he cannot avail himself of
a petition for relief (Trust International Paper Corporation v.
Pelaez, 499 SCRA 552, 561).
Also, a party who has filed a motion for new trial, but
which was denied, cannot file a petition for relief. These two
remedies are said to be exclusive of each other. It is when
a party aggrieved by a judgment has not been able to fil
a motion for new trial that a petition for relief can be filed
(Francisco v. Puno, 108 SCRA 427, 432).
Grounds for a petition for relief; proper court
1. A petition for relief may be filed on the following
grounds:
(a) When a judgment or final order is entered, or
any other proceeding is thereafter taken against th
petitioner in any court through fraud, accident, mistak�,
or excusable negligence (Sec. 1, Rules of Court); or
(b) When the petitioner has been prevented from
taking an appeal by fraud, accident, mistake, or excusabl
negligence (Sec. 2, Rule 38, Rules of Court).
2. In letter "a," the petition shall be filed with such
court and in the same case (not in another or higher court).
The petition shall pray that the judgment, order or proceedin ~
be set aside (Sec. 1, Rule 38, Rules of Court).
In letter "b," the petition shall, likewise, be filed with such
court and in the same case (not in another or higher court) but
the prayer this time is that the appeal be given due course
(Sec. 2, Rule 38, Rules of Court).

634 CIVIL PROCEDURE, V OLUME I
THE BAR LECTURES SERIES
3. Under the present Rules, petitions for relief from a
judgment, final order or other proceeding rendered or taken
should be filed with and resolved by the court in the same case
from which the petition arose. Thus, a petition for relief from
a judgment, final order or proceeding involved in a case tried
r1 by· a Municipal Trial Court shall be filed with and decided
by the sam�. cm,1i't in the same case, or. in the Regional Trial ·.
Court if the -case �as decided by it '(Secs: 1-2, Rule 38, Ru[es of·
Court; Redeiia v. Court of Appeals, 514 SCRA 389, 400; Afdal
v. Carlos, 636 SCRA 389, 395). The petition must be filed in
the same court and in the same case since it is not a mode of
appeal. An appeal involves the invocation of the authority of a
higher court.
Extrinsic fraud; concept (Bar 2011)
1. The fraud that is a ground for the filing of a petition
for relief is "extrinsic" fraud. One case refers to extrinsic
fraud as "that fraud which the prevailing party caused to
prevent the losing party from being heard on his action or
defense. Such fraud concerns not the judgment itself but the
manner in which it was obtained. For example, the petition
of a defending party would be justified where the plaintiff
deliberately caused with the process server's connivance the
service of summons on defendant at the wrong address and,
thus, succeeded in getting a judgment by default against him"
(AFP Mutual Benefit Association, Inc. v. Regional Trial Court,
Marikina City, Branch 193, 642 SCRA 720, 727, February 14,
2011).
2. Extrinsic fraud also justifies a motion for new trial,
a motion to set aside an order of default, and an action for
annulment of a judgment.
Petition is available only to the parties
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 judgment is rendered. In fact, it has been held
that a person, who was never a party to the case, or even
CHAPTERIX 635
POST JUDGMENT REMEDIES
summoned to appear therein, cannot avail of a petition for
relief from judgment (Alaban v. Court of Appeals, 470 SCRA
697, 705).
Petition is available to proceedings after the judgment
A petition for relief is available not only against a
jutlgment or final order. Under Sec. 1 of Rule '38, it is also
available when "any other proceeding is thereafter taken
· aga:inst a party in any court through fraud, accident, mistake,
or excusable negligence." Thus, it was held that a petition for
relief is also applicable to a proceeding taken after the entry
of judgment or final order such as an order of execution. Rule
38 does not only refer to judgments but also to orders, or any
other proceedings (Cayetano v. Ceguerra, 13 SCRA 73, 79).
When to file
The petition shall be filed within 60 days after the
petitioner learns of the judgment, final order or proceeding
and not more than six months after such judgment or final
order was entered, or such proceeding was taken (Sec. 3, Rule
38, Rules of Court).
Section 3 of Rule 38 reads:
"SEC. 3. Time for filing petition; contents, and
verification. - A petition provided for in either of the
preceding sections of this Rule must be verified, filed
within sixty (60) days after the petitioner learns of the
judgment, final order, or other proceeding to be set aside,
and not more than six (6) months after such judgment or
final order was entered, or such proceeding was taken;
and must be accompanied with affidavits, showing th
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."
Thus, it is clear that a petition for relief from judgment
must be filed within: (a) 60 days from knowledge of judgment,
order or other proceedings to be set aside; and (b) six months
 636 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
from entry of such judgment, order or other proceeding. These
two periods must concur. Both periods are also not extendible
and never interrupted. Strict compliance with these periods
stems from the equitable character and nature of the petition
for relief. Indeed, relief is allowed only in exceptional cases as
· when there is no other available or adequate remedy. As it were,
a petition for relief is actually :the 11last chance" given'by Jaw
to litigants to question a final jctdgtnent or order. And failure
to avail of such "last chance," wjthin the grace period fixed by
the Rules, is fatal (Quelnan v. VHF Philippines, 470 SCRA 73,
80). Whl'le "strict interpretation" is the norm in applying the
periods mentioned, such rule is always subject to the power
of the Supreme Court to effect a liberal interpretation when
dictated by the circumstances.
Form of the petition; affidavit of merit
The petition must be verified and accompanied with
affidavits showing 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 (Sec. 3, Rule 38, Rules of Court).
Order to 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 15
days from the receipt thereof (Sec. 4, Rule 38, Rules of Court).
Mearing of the petition
After the filing of the answer or the expiration of the
period to :file the answer, the court shall hear the petition (Sec.
6, Rule 38, Rules of Court).
Actkm of the court
After the hearing and the court finds that the allegations
therein are not true, it shall dismiss the petition. If the court
finds the allegations to be true, it shall set aside the judgment,
CHAPTER IX 637
POST JUDGMENT REMEDIES
final order or other proceeding complained of. The case, then,
shall stand as if such judgment, final order or 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 (Sec.
6, Rule 38, Rules of Court). This action of the court applies to
a petition for relief praying that the judgment, final order or,:,
proceeding be set aside having been entered or taken against:>
petitioner by fra11d, accident, mistake or excusable negligence
(Sec. 1, Rule 38, Rules of Court).
Where the prayer of petitioner is to give due course to
his appeal because he was prevented from taking an appeal
through fraud, accident, mistake or excusable negligence, and
the court finds the allegations of the petition to be true, the
court shall set aside the previous denial of the appeal and
shall give due course to the said appeal. It shall then elevat
the records of the appealed case as if a timely and proper
appeal had been made (Sec. 7, Rule 38, Rules of Court).
Preliminary injunction pending the petition for relief
Remember that a petition for relief is a remedy available
after the judgment or final order has become final and
executory. 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 th
pendency of the petition. The petitioner, therefore, would b
interested in the preservation of the status quo, as well as th
preservation of the rights of the parties, before the petition is
resolved.
Hence, the petitioner may avail of the remedy allowed
him under Sec. 5 of Rule 38. Under this provision, the court,
in which the petition is filed, may grant such preliminary
injunction to preserve the rights of the parties upon the filing
of a bond in favor of the adverse party. The bond is conditioned
upon the payment to the adverse party of all damages and
costs that may be awarded by reason of the issuance of th
638 _ CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
injunction or the other proceedings following the petition (Sec.
5, Rule 38, Rules of Court).
No petition for relief in the Supreme Court and Court of
Appeals
L Can a petitioner ,avail of a petition for_ relief from
judg'meiit under Rule 38 of the.)997 Rules of Civil Procedure
from a resolution of the Supreme Court denying his petition
for review?
The Supreme Court, in Purcon v. MRM Philippines,
Inc., 566 SCRA 645, 651-653, answered the question in the
negative. A petition for relief from judgment is not an available
remedy in the Supreme Court. In summary, the Supreme
Court explains, 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:
"Section 1. Original cases cognizable. - Only peti­
tions for certiorari, prohibition, mandamus, quo war-
- ranto, habeas corpus, disciplinary against members ofthe·
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 this
Gourt.
"Second, while Rule 38 uses the phrase "any court,"
it refers only to Municipal/Metropolitan and Regional
Trial Courts.
XXX
"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
CHAPTER IX 639
POST JUDGMENT REMEDIES
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.
"There is no provision in the Rules of Court making
the petition for relief applicable in the CA or this Court.
The pro,c;edure in the CA from �:ules 44 to 55, with the
exception ofRule 45 which pertains to the Supreme Court, •­
identifies the remedies available before said Court such ·
as annulment ofjudgments or final orders or resolutions
(Rule 47), motion for reconsideration (Rule 52), and new
trial (Rule 53). Nowhere is a petition for reliefunder Rule
38 mentioned.
"If a petition for relief from judgment is not among
the remedies available in the CA, with more reason that
this remedy cannot be availed of in the Supreme Court.
This Court entertains only questions oflaw. A petition for
reliefraises questions offacts on fraud, accident, mistake,
or excusable negligence, which are beyond the concerns of
this Court" (Underscoring supplied).
2. Earlier, Mesina v. Meer, 383 SCRA 625, 634, the
Court has ruled that a petition for relief from judgment is not
an available remedy in the Court of Appeals.
No petition for relief in summary procedure, sm�II claims
In one case, the petitioners argued that petitions for
relief from judgment in forcible entry and unlawful detainer
cases can be filed with the RTC provided that petitioners hav
complied with all the legal requirements to entitle him to avail
of such legal remedy. Clearly, ruled the Court, a petition for
relief from judgment in forcible entry and unlawful detainer
cases, as in the present case, is a prohibited pleading (Sec.
19[d], 1991 Rules on Summary Procedure). The reason for this
is to achieve an expeditious and inexpensive determination of
the cases subject of summary procedure. A party cannot file
the petition for relief from judgment with the MTC because it
is a prohibited pleading in an unlawful detainer case. A party
cannot also file the petition for relief with the RTC because
640 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
the RTC has no jurisdiction to entertain petitions for relief
from judgments of the MTC.
The petition is not also allowed in small claims cases
(Afdal v. Carlos, 636 SCRA 389, 395; see Sec. 16[d], Rules of
Procedure for Small Claims Cases).·
:,. . :
.Petition for relief in er)vironmental cases
. In environmental cases, a petition for relief from judgment
shall be allowed in highly meritorious cases or to prevent a
manifes� miscarriage of justice (Sec. 1, Rule 2, Part II, Rules
of Procedure for Environmental Cases).
B. Annulment of Judgments, Final Orders
or Resolutions (Rule 4 7)
Nature of the action
1. An action for annulment of a judgment is a remedy
in equity exceptional in character availed of only when other
remedies are wanting (Spouses Teano v. The Municipality
of Navotas, G.R. No. 205814, February 15, 2016; citations
omitted). It is a remedy granted only under exceptional
circumstances provided the petitioner has failed to avail
himself of the ordinary or other appropriate remedies provided
by law without fault on his part. It is· never resorted to as
a substitute for the petitioner's own neglect in not promptly
availing himself of the ordinary or other appropriate remedies
(Aquino v. Tangkengko, G.R. No. 197356, August 24, 2016).
2. The petition should show that the ordinary remedies
of new trial, appeal, petition for relief or other- appropriate
remedies are no longer available. It is important to show
also that such remedies have been made unavailable without
fault on the part of the petitioner (See Sibal v. Buquel, G.R.
No. 197825, January 11, 2016; Spouses Sanchez v. Vda. De
Aguilar, G.R. No. 228680, September 17, 2018). Thus, when a
petitioner had already brought a petition for relief pursuant
to Rule 38 based on extrinsic fraud, he cannot anymore avail
of an action for annulment of judgment under Rule 47 based
CHAPTER IX 641
POST JUDGMENT REMEDIES
on the same ground used in the prior remedy (Aquino v.
Tangkengko, supra).
3. 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 nat'ur� 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 (Frias v. Alcayde, G.R. No. 194262,
February 28, 2018).
It needs to be emphasized that annulment of judgment is
independent of the case in which the judgment is sought to b
annulled. It is not like a motion for reconsideration, appeal or
even a petition for relief from judgment, because annulment
of a judgment is not a continuation of the same case. In fact,
the case it seeks to annul is already final and executory. It is
equitable in character and allowed only in exceptional cases.
When the action to annul a judgment is filed, it involves the
exercise of the original jurisdiction of the court in which it is
filed. This court is the Court of Appeals if the judgment sought
to be annulled is that rendered by the RTC, or the RTC if the
judgment to be annulled is that of the MTC (Commissioner
of Internal Revenue v. Kepco Ilijan Corporation, G.R. No.
199422, June 20, 2016). Annulment of judgment is not a mode
of appeal but an original action.
4. The purpose of such action is to have the final and
executory judgment set aside so that there will be a renewal
of litigation (See Alaban v. Court of Appeals, 470 SCRA 6'9.,
707; Spouses Teano v. The Municipality of Navotas, G.R. No.
205814, February 15, 2016; Yu v. Yu, G.R. No. 200072, Jun
20, 2016).
5. 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

642 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
thereto. Rule 4 7 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
(Baclaran Marketing Corporation V. Nieva, G.R. No. 189881,
April 19, 2017). Note that the proper remedy against an order
of execution is the apptopriate special civil action under Rule
65 (See Sec. 1, Rule 41, Rules of Court).
6. 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 (See Republic
v. "G" Holdings, Inc., 475 SCRA 608, 617, 618).
7. The remedy of annulment of judgment is also an
exception to the "final judgment rule" (Diana v. Balangue,
688 SCRA 22, 34, January 7, 2013) or to the doctrine of
immutability of judgments (conclusiveness of judgments). This
is because, when the judgment is annulled, the old judgment
will be set aside.
Court in which action is commenced
T'he action is commenced by the filing of a verified petition
with the proper court. If it is the judgment or final order of a
Regional Trial Court which is sought to be annulled, then the
action shall be filed with the Court of Appeals (Sec. 1, Rule
47, Rules. of Court). If it is that of a Municipal Trial Court, the
verified petition shall be filed with the Regional Trial Court
having jurisdiction over the former (Sec. 10, Rule 47, Rules of
Court).
Grounds for annu!meni: (Bar 20'!4; 2016)
1. Under the Rules of Court, the grounds for annul­
ment of a judgment are: (a) extrinsic fraud, and (b) lack
of jurisdiction (Sec. 2, Rule 47, Rules of Court; Baclaran
Marketing Corporation u. Nieva, G.R. No. 189881, April 19,
2017).
CHAPTER IX 643
POST JUDGMENT REMEDIES
2. Although Sec. 2 of Rule 4 7 of the Rules of Court
provides that a petition for annulment may be based on the
grounds of extrinsic fraud and lack of jurisdiction, jurispru­
dence has recognized denial of due process as an additional
ground (Diana v. Balangue, 688 SCRA 22, 35, January 7,
2013; Gochan v. Mancao, G.R. No.. 182314, November 13,
2013;, Yu y. Yu, G.R. No. 2D007.2, June 20, 2016; Baclaran
Marketing Corporation v. Nieva, G.R. No. 189881', April 19,
2017). The essence of due process is an opportunity to be heard.
As long as the parties are given the opportunity to be heard
before judgment is rendered, the demands of due process are
sufficiently met. This concept also applies to administrative
proceedings (See South Cotabato Communications Corporation
v. Sto. Tomas, G.R. No. 217575, June 15, 2016).
c}{trinsic fraud
1. It must be emphasized that not every kind of fraud
justifies annulment of a judgment. The fraud must be one that
is "extrinsic" (Sibal v. Buquel, G.R. No. 197825, January 11,
2016).
Extrinsic fraud in a petition for annulment refers to "any
fraudulent act of the prevailing party in litigation committed
outside the trial of the case where the defeated party is
prevented from fully exhibiting his side by fraud or deception
practiced on him by his opponents like (a) by keeping him away
from court, (b) by giving him false promise of a compromise,
or (c) where an attorney fraudulently or without authority
connives at his defeat. However, mistake or gross negligenc
of a lawyer does not amount to extrinsic fraud that would
warrant a grant for annulment (See Cagayan Economic Zon
Authority D. Meridien Vista Gaming Corporation, G.R. No.
194962, January 27, 2016; See also Sibal v. Buquel, G.R. No.
197825, January 11, 2016). It also refers to acts where th
losing party never had knowledge of the suit being kept in
ignorance by the acts of the other party (Baclaran iVlarketing
Corporation v. Nieva, G.R. No. 189881, April 19, 2017).
Extrinsic fraud may arise when it is made to appear
that the defendant had been duly served summons even if
644 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
no summons had been actually properly served. In effect,
extrinsic fraud results into the absence of a real contest in
the trial or hearing and the overriding consideration is that
the fraudulent scheme of the prevailing litigant prevented a
party from having his day in court (Yu v. Yu, supra). It may
arise when by fraud or deception practiced on a party by his
opponent, he is. kept away from the coµrtas. when he never h11d
knowledge of\the suit because he is'.keptiin ignorance by the
adverse party. There is also extrinsic fraud where his attorney
fraudulently or without authority connives at his defeat. It is
important to know that the fraud must arise from the act of
the other party and is of such a nature to have deprived the
petitioner of his day in court. When there is extrinsic fraud,
there never has been a real contest in the trial or hearing of
the case. Hence, the former judgment may be set aside and
the case opened for a new and fair hearing (Sibal v. Buquel,
supra).
2. 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 (Sec. 2, Rule 47, Rules of
Court).
Forgery or perjury
The use of forged instruments. ox: perjured testimonies
during trial is not an extrinsic fraud. Such evidence does not
preclude a party's participation in the trial (Bobis v. Court of
Appeals, 348 SCRA 23, 30; Strait Times v. Court ofAppeals, 294
SCRA 714,, 723). Offering manufactured evidence is intrinsic
and not extrinsic fraud. Intrinsic fraud is not sufficient to
annul a judgment (Conde v. Intermediate Appellate Court, 144 ·
SCRA 144, 153).
Lack of Juriscilcfa::m
1. 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
·cHAPTER IX 645
POST JUDGMENT REMEDIES
the subject matter of the case, its decision will not be voided on
the ground of absence of jurisdiction (Republic v. "G" Holdings,
475 SCRA 608, 618; Sebastian v. Cruz, G.R. No. 220940, March
20, 2017). The petitioner must show not a mere grave abuse
of discretion but an absolute lack of jurisdiction. The concept
of lack of jurisdiction, as a ground to annul a judgment, does
not einbrace abuse of �iscretion (Republic v. }"G" Holdings,
.
inc., ibid.). A claim for grave abuse of discretio11.will support a
petition for certiorari under Rule 65 but it will not support an
action for annulment ofa judgment.
Lack of jurisdiction over the subject matter presupposes
that the court should not have taken cognizance of the
complaint because the law or the Constitution does not vest
it with jurisdiction (Spouses Sanchez v. Vda. De Aguilar, G.R.
No. 228680, September 17, 2018).
2. In a petition for annulment of judgment based on
lack of jurisdiction, 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 (Heirs
of Maura So v. Obliosca, 542 SCRA 406, 417-418).
Period for filing the action
If based on extrinsic fraud, the action must be filed within
four years from its discovery. If based on lack of jurisdiction,
the action must be brought before the action is barred by
laches or estoppel (Sec. 3, Rule 47, Rules of Court).
Who may file the action
1. The petitioner need not be a party to the judgment
sought to be annulled to acquire personality to file the action
for annulment of judgment. 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 v. Court of Appeals, 470 SCRA
697, 708; Islamic Da'Wah Council of the Philippines v. Court

646 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
of Appeals, 178 SCRA 178, 186). 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 (See Villanueva v. Nite, 496 SCRA
459).
2. A case of more recent ,vintage explained anew th_at
t
the prop(:)r party to file a petition or �nnulment of a judgment
or final order need not be a party to tµe judgment sought to be
annulled. Nevertheless, it is essential that he is able to prove
by preponderance of evidence that he is adversely affected by
the judgment. It has also been previously ruled that assuming
that the petitioner is not an indispensable party to the case
that is being annulled, he may still file for a petition for
annulment of judgment. The basis of the rule is that what is
essential is that he can prove his allegation, for instance, that
the judgment was obtained by the use of fraud and collusion
and that he would be adversely affected thereby (Encarnacion
v. Johnson, G.R. No. 192285, July 11, 2018).
Effect of@ judgment of annulment
1. A judgment ofannulment based on lack of jurisdiction
shall have the effect of setting aside the questioned judgment
or final order and rendering the same null and void, but the
judgment of annulment is without prejudice to the refiling of
the original action in the proper court (Sec. 7, Rule 47, Rules of
Court). The prescriptive period for the refiling of the original
action shall be deemed suspended from the filing of such
original action until the finality of the judgment of annulment.
This prescriptive period shall not, however, be suspended
where the extrinBic fraud is attributable to the plaintiff in the
original action (Sec. 8, Rule 47, Rules of Court).
This means that the entire proceedings are set aside
without prejudice to the original action being refiled in the
proper court (Spouses Sanchez v. Vda. De Aguilar, G.R. lVo.
228680, September 17, 2018).
2. Where the judgment or final order is set aside
and annulled on the ground of extrinsic fraud, the court,
CHAPTER IX 647
POST JUDGMENT'REMEDIES
upon motion, may order the trial court to try the case as if
a motion for new trial was granted (Sec. 7, Rule 47, Rules of
Court; Spouses Sanchez v. Vda. De Aguilar, G.R. No. 228680,
September 17, 2018).
3, Aside from the setting aside of the judgment or
final order and other effects, the judgment of annulment may
iri.clude the award of dafoages, attorney's fees and other relief
,. . .
(Sec. 9, Rule 47, Rules of Court).
Remedy when the questioned judgment has already been
executed
If the questioned judgment, 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 (Sec. 9, Rule 47, Rules of Court).
Application of Rule 47; annulment of judgments of the MTC
1. Rule 47 governs the annulment by the Court of
Appeals of judgments or final orders and resolutions in civil
actions of Regional Trial Courts (Sec. 1, Rule 47, Rules of
Court).
2. Secs. 2, 3, 4, 7, 8, and 9 of Rule 47 shall, likewise,
apply to annulment of judgments or final orders of a Municipal
Trial Court by the Regional Trial Court having jurisdiction of
the former. This action shall be treated as an ordinary civil
action (Sec. 10, Rule 47, Rules of Court).
Annulment of judgments of quasi-judicial bodies
Notably, Rule 47 · does not mention jurisdiction over
annulment of judgments of quasi-judicial bodies. Rule 47
limits its application to Regional Trial Courts ancf Municipal
Trial Courts (Imperial v. Armes, G.R. No. 178842, January 30,
20.l 7). The silence of B.P. 129 on the jurisdiction of the Court
of Appeals to annul judgments or final orders and resolutions
of quasi-judicial bodies, like the DARAB, indicates its lack
of such authority (Springfield Development Corporation v.
 648 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
RTC of Misamis Oriental, 514 SCRA 326, 340). It is, hence,
submitted that a party aggrieved, who desires an annulment of
a judgment or resolution of a quasi-judicial body, enumerated
under Rule 43, may avail of a petition for review to the Court
of Appeals under said rule and not an action to annul the
judgment or resolution.
: :,·
C. Certiorari.·(Rule 65)
Nature of the remedy (Bar 2013)
1. A petition for certiorari is an original and independent
action, and is not part of the proceedings that resulted in the
order assailed (Sang-an u. Equator Knights Detective and
Security Agency, Inc., 690 SCRA 534, 541, February 13, 2013;
Francisco u. Loyola Plans Consolidated, Inc., G.R. No. 194134,
February 1, 2016).
Not being part of the proceedings that gave rise to the
assailed order, 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 with the case (Sec. 7, Rule
65, Rules of Court). Also, because the filing of the petition does
not, as a rule, interrupt the course of the principal case, the
public respondent, in a petition for certiorari, shall proceed
· with the principal case within 10 days from the filing of the
petition 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 (Sec. 7, Rule 65, Rules of Court). Unlike an appeal, a
pending petition for certiorari does not stay the judgment or
order that it assails (De Ocampo u. RPN-9/Radio Philippines
Network, Inc., G.R. No. 192947, December 9, 2015).
2. Being an original action, there is a need for the court
in which the petition is filed to acquire jurisdiction over the
respondent. This is acquired by the service on him of the order
or resolution of the court indicating its initial action on the
petition or by his voluntary submission to such jurisdiction
CHAPTERIX 649
POST JUDGMENT REMEDIES
(See Sec. 4, Rule 46, Rules of Court; Francisco u. Loyola Plans
Consolidated, Inc., G.R. No. 194134, February 1, 2016).
3. 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 court within the parameters of its jurisdiction
(Bongalan v. People, 694 SCRA 12, .18-19, March 20, 201,3;
see also Genpact Services, Inc. v. S,antos-Falceso, G.R. No.
227695, July 31, 2017). It does not concern itself with errors
of judgment; its province is confined to issues of jurisdiction or
grave abuse of discretion (Almagro v. Philippine Airlines, Inc.,
G.R. No. 204803, September 12, 2018).
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 (Landbanh of the Phils.
v. Court of Appeals, 409 SCRA 455, 479). Do not file certiorari
if your purpose is to raise a factual issue or to ask for a re­
evaluation of the facts and the evidence (PILTEL u. NTC,
410 SCRA 82, 88). 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 (Miranda u.
Sandiganbayan, G.R. Nos. 144760-61, August 2, 2017).
4. A special civil action for certiorari is an extraordinary
remedy that is _ allowed only and . restrictively
0
_in tr_uly
exceptional cases. The remedy may be used only when there
is no more appeal, or any other plain, speedy, and adequate
remedy in the ordinary course of law (Manalo u. Ateneo de
Naga University, G.R. No. 185058, November 9, 2015; see also
Genpact Services, Inc. v. Santos-Falceso, G.R. No. 227695,
July 31, 2017). Because the petition can be availe� of only
when there is no other plain, speedy and adequate remedy,
the Court described the petition as "a limited form of review
and is a remedy of last resort" (Albor v. Court of Appeals, G.R.
No. 196598, January 17, 2018).
5. The existence and availability of the right to appeal
prohibits the resort to certiorari because a requirement for
the latter remedy is there should be no appeal available (Sec.
650 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
1, Rule· 65, Rules of Court; Miranda u. Sandiganbayan, G.R.
Nos. 144760-61, August 2, 2017). Certiorari is not and cannot
be a substitute for an appeal, especially if one's own negligence
or error in one's choice of remedy occasioned such loss or
lapse. One of the requisites of certiorari is that there be no
available appeal or any plain, speedy and adequate remedy.
Where an appeal is available, certiorari will not p;r:osper, even
if the ground invoked is grave abuse of discretibn (Butuan
Development Corporation u. Court of Appeals,. G.R. No.
197358, April 5, 2017; Punongbayan-Visitacion u. People, G.R.
No. 194214, January 10, 2018).
From one perspective, it is the inadequacy, not the mere
absence of all legal remedies and the danger of failure of justice
without the writ, that must usually determine the propriety
of certiorari. A remedy is plain, speedy and adequate if it will
promptly relieve the petitioner from the. injurious effects of
the judgment, order or resolution of the lower court or agency
(Bordomeo u. Court of Appeals, 691 SCRA 269, 286, February
20, 2013). Hence, if a litigant wants to avail of certiorari
despite the availability of appeal, one way is to show that,
even if available, appeal is not adequate, speedy or equally
beneficial as certiorari (See Landbank of the Philippines u.
Court of Appeals, 409 SCRA 455, 480-481; Crisologo u. JEWN
Agro-Industrial Corporation, G.R. No. 196894, March 3, 2014).
Even if the settled rule is that certiorari is not allowed
as a remedy when appeal is available, jurisprudence carved
out certain exceptions to the rule. In the following situations,
the Court allowed certiorari despite the availability of appeal:
(a) when it is necessary to prevent irreparable damage and
injury to a party; (b) where the trial judge capriciously and
whimsically exercised his judgment; (c) where there may be a
danger of failure of justice; (d) where an appeal would be slow,
inadequate, and insufficient; (e) where the issue is one purely
of law; (f) where public interest is involved; and (g) in case of
urgency (Municipality of Cordoua u. Pathfinder Development
Corporation, G.R. No. 205544, June 29, 2016; Martinez u.
Buen, G.R. No. 187342, April 5, 2017; For further readings,
see Orlina iJ. Ventura, G.R. No. 227033, December 3, 2018).
CHAPTERIX
POST JUDGMENT REMEDIES
A more recent case adds to the above exceptio,1
Accordingly, recourse to a petition for certiorari, despite 1,1 If
availability of appeal, may be allowed under the follow lt1
exceptions: (a) when public welfare and the advancement, nl
public policy dictate; (b) when the broader interest of jus
so requires; (c) when the writs issued are null and void; OJ
when the questioned order amounts to an oppressive exer1
of judicial �uth�rity (Punongbayd'n-Vi�itacion u. People, ·o,
ti
No. 194214, January 10, 2018; Cit(J,tio1is of the Court, omitt1•1l•
Career Executive Service Board u. Civil Service Commiss/tJ1J
G.R. No. 196890, January 11, 2018; For further readings. u,•
Orlina u. Ventura, C.R. No. 227033, December 3, 2018).
6. To avail of the remedy of certiorari, showing a 111 .. ,,
"abuse of discretion" is not sufficient because the obj
the writ is to couect errors of jurisdiction or grave abu
discretion (See Sec. 1, Rule 65, Rules of Court).
Grave abuse of discretion is "the capricious and whim
exercise of judgment, equivalent to lack of jurisdiction
It is not present when the acts are found to be mere eJ'l'lll'
of judgment or simple abuse of discretion" (A.bdulrahll
u. The Office of the Ombudsman, G.R. No. 175977, Au,
19, 2013; Malayang Manggagawa ng Stayfast Phil., Jn,r:.
NLRC, G.R. No. 155306, August 28, 2013; Republic u. Roanu,
C.R. No. 204603, September. 24, 2013; Te u. Breua, G.R, N(),
164974, August 5, 2015; Kilusang Mayo Uno u. Aquino,
No. 210761, June 28, 2016).
''It connotes a capricious and whimsical exerci1t1
judgment, done in a despotic manner by reason of passi1111 t11
hostility, the character of which being so patent and gr
to amount to an evasion of positive duty or to a virtual ro l'I I
to perform the duty enjoined by or to act all in contemp]tU,lui1
of law" (Austria v. Crystal Shipping, Inc., G.R. No. 20fi'WW,
February 24, 2016; .For further readings, see People v. Ca11/ U/r1,
Sr., G.R. No. 204419, November 7, 2016; see also, Reuillu,
u. 8andiganbayan [First Division], July 24, 2018).
F'or instance, in labor disputes, grave abuse of disc1 ,11, 111 ;,
may be ascribed to the NLRC when its findings and concl11 tl1!l I
652 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
are not supported by substantial evidence or that amount of
relevant evidence adequate to support a conclusion (Quillopa
v. Quality Guards Services and Investigation Agency, G.R. No.
213814, December 2, 2015; Austria v. Crystal Shipping, Inc.,
G.R. No. 206256, February 24, 2016).
7. The petition s_hall be filed not later, than 60 days
from notice of the judgment, order or resqlution sought to be
reviewed. In case .a motion for reconsideration was filed, the
60-day period starts not from the notice ofjudgment but from
notice of the denial of the motion for reconsideration (Sec. 4,
Rule 65, Rules of Court; Docena v. Lapesura, 355 SCRA 658;
· Opinaldo v. Ravina, G.R. No. 196573, October 16, 2013).
8. In summary, Rule 65 of the Rules of Court requires a
petition for certiorari to comply with certain basic requisites,
namely:
(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; and
(c) There is no appeal, or any plain, speedy or
adequate remedy in the ordinary course of law (Bordomeo
v. Court of Appeals, 691 SCRA 269, 286-287, February
20, 2013).
Certiorari under Rule 65 is not an appeal
At this stage, one must be cautioned against confusing
a �pecial civil action for certiorari with 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.
Among various differences between appeal and certiorari,
one important distinction may be emphasized. In an appeal,
CHAPTERIX 653
POST JUDGMENT REMEDIES
the appellate court reviews errors of judgment. This error
may be one of fact, of law or of both fact and law. On the other
hand, a petition for certiorari is a special civil action where the
reviewing court has jurisdiction only over errors of jurisdiction
because the lower court acted without jurisdiction at all or,
if it has jurisdiction, it acted in excess of its jurisdiction o:t
gravely abused its jurisdictj.on in a manner amounting to
lack of jurisdiction (See for 'additional readings, Philippine
National Bank v. Gregorio, G.R. No. 194944, September 18,
2017).
Judicial discretion
1. A writ of certiorari is an extraordinary prerogative
writ that is never demandable as a matter of right (Indoyon,
Jr. v. Court of Appeals, 693 SCRA 201, 209, March 12, 2013).
2. The acceptance of a petition for certiorari, and
the giving of due course thereto, is addressed to the sound
discretion of the court. The court may dismiss the petition
when:
(a) There is no showing of a grave abuse of discretion
by any court, agency, or branch of the government; or
(b) There are procedural errors, such as violation
of the Rules of Court or Supreme Court circulars, like the
failure to implead the private respondent, failure to attach
the pleadings and documents relevant to the petition,
failure to file a motion for reconsideration, or failure
to allege material dates in the petition (Abdulrahman
v. The Office of the Ombudsman, supra; For additional
readings, see also Bureau of Internal Revenue v. Acosta,
G.R. No. 195320, April 23, 2018).
Motion for reconsideration
1. 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 (Lepanto
654 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Consolidated Mining Company v. Lepanto Capataz Union,
691 SCRA 11, 23-24, February 18, 2013; WM Manufacturing,
Inc. v. Dalag, G.R. No. 209418, December 7, 2015; for further
readings, see also Carpio-Morales v. Court of Appeals, G.R.
Nos. 217126-27, November IQ, 2015; Genpact Services, Inc., v.
Santos Falceso, G.R. No. 227695, July 31, 2017).
2. A moti.on:•·for reconsideration i�· an indispensable
condition before an aggrieved party can resort to the special
civil action for certiorari. 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 (Philippine National Bank v.
Arcobillas, G.R. No. 179648, August 7, 2013; see Ocampo v.
Enriquez, C.R. No. 225973, August 8, 2017; see also Jason
v. Office of the Ombudsman, G.R. Nos. 197433 and 197435,
August 9, 2017). Besides, a motion for reconsideration is also a
plain speedy and adequate remedy in the ordinary course oflaw
alluded to in Sec. 1 of Rule 65 (Tiorosio-Espinosa v. Hofilefia­
Europa, G.R. No. 185746, January 20, 2016). The special civil
action for certiorari will not lie unless the aggrieved party has
no other plain, speedy and adequate remedy in the ordinary
course of law. If a motion for reconsideration is available, the
motion must first be filed (See Miranda v. Sandiganbayan,
G.R. Nos. 144760-61, August 2, 2017) since such motion is also
a plain, speedy, and adequate remedy.
E1cceptiou1s to the rule requiring a motion for reconsideration
A motion for reconsideration is a condition sine qua non
for the filing of a petition for certiorari. This is, however, not
an ironclad rule. It admits of well-defined exceptions (Spouses
Larry and Flora Davis v. Spouses Florencio and Lucresia
Davis, G.R. No. 196795, March 7, 2018). The rule is subject to
the following recognized exceptions:
(a) Where the order is a patent nullity, as where
the court a quo has no jurisdiction;
(b) Where the questions raised in the certiorari
proceeding have been duly raised and passed upon by the
CHAPTERIX . . · 655
POST JUDGMENT REMEDIES
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 G:overnment or of the.
petitioner or the subj�ct matter of the action is perishable;
(d) Where, under the circumstances/a �otion for
J
reconsideration would be useless;
(e) Where the petitioner was depr1ved 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;
l
(g) Where the proceedings in the lower court ar
nullity for lack of due process;
(h) Where the proceedings conducted were ex parte
or in which the petitioner had no opportunity to object;
and
(i) Where the issue raised is one purely of law or
public interest is involved (Spouses Nice v. Equitable
PCI-Bank, 516 SCRA 231, 251-252; Jason v. Office of the
Ombudsman, G.R. Nos. 197433 and 197435, August 9,
2017; City Government of Baguio v: Masweng, G.R. No.
195905, July 4, 2018).
For example, if the trial court issues a writ of preliminary
injunction despite the absence of proof of a legal right and
the injury sustained by the plaintiff, the writ is a nullity. A
motion for reconsideration may be dispensed with (Spouses
Nice v. Equitable PCI-Bank, 516 S'CRA 231, 253,; For further
readings, see Spouses Latoja v. Lim, G.R. No. 198925, July
13, 2016; Genpact Services, Inc. v. Santos Falceso, G.R. No.
227695, July 31, 2017).
Material Data (Date) Rule
Section 3 of Rule 46 of the Rules of Court provides that
there are three material dates that must be stated in a petition
656 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
for certiorari brought under Rule 65: (1) the date when notice
of the judgment, final order or resolution was received; (2) the
date when a motion for new trial or for reconsideration was
filed; and (3) the date when notice of the denial thereof was
received. This requirement is for the purpose of determining
the timeliness of the petition The failure to state the material
dates is sufficient ground to dismiss-,the petition under the
same rule· (Wenceslao v. Makati De·velopment Corporation,
C.R. No. 230696, August 30, 2017; Yu · v. SR Metals, Inc.,· G.R.·
No. 214249, September 25, 2017).·
The appellate court has the prerogative to dismiss the case
outright for failure to comply with the formal requirements
of an action filed under Rule 65. These requirements, among
others, include a statement by the petitioner indicating the
material dates when the order or resolution subject of the
petition was received (Tionosio-Espinosa v. Hofileiia-Europa,
supra).
Certification against forum shopping
Rule 65 also requires the pleader to submit a certification
against forum-shopping (Sec. 1, Rule 65 in relation to Sec. 3
of Rule 46).
,Jurisdiction (Bar 2012); observance of hierarchy of courts
1. If the petition for certiorari relates to an act or
omission of a municipal trial court, a board, an officer
or a person, it shall be filed with the Regional Trial Court
exercising jurisdiction over the territorial area, as defined
by the Sl!preme Court. Jt may also be filed with the Court of
Appeals or the Sandiganbayan, whether or not the same is in
aid of the court's appellate jurisdiction (Sec. 4, Rule 65, Rules
of Court).
If the petition involves an act or omission of a quasi­
judicial agency, unless otherwise provided by law or these
rules, the petition shall be filed with and cognizable only by
the Court of Appeals (Sec. 4, Rule 65, Rules of Court).
CHAPTER IX 657
POST JUDGMENT REMEDIES
In election cases involving an act or om1ss1on of a
Municipal or a Regional Trial Court, the petition shall be filed
exclusively with the Commission on Elections in aid of its
appellate jurisdiction (Sec. 4, Rule 65, Rules of Court).
2.. In filing a petition for certiorari, the hierarchy of
courts must be observed. Hence, even though the Supreme
Court has concurrent jurisdiction with tht(Cotirt of Appeals
and the Regional Trial Court to issue a writ of mandamus,
prohibition or certio.rari, litigants are advised against taking
direct recourse to the Supreme Court without initially seeking
proper relief from the lower courts (See also Carpio v. Sulu
Resources Dev. Corp., 387 SCRA 128).
Certiorari does not interrupt the principal case
1. The pendency of a petition for certiorari does not
interrupt the course of the principal case (Sec. 7, Rule 6
Rules of Court; Lu v. Chiong, C.R. No. 222070, April 16, 2018).
Hence, if said petition is filed against a court, the proceedings
in that court, as to the case subject of certiorari, have to
proceed. Bar 2013
2. The respondent court has the duty to· proceed
with the principal case within 10 days from the filing of the
petition with a higher court or tribunal. As a rule, failure of
the· respondent to proceed with the principal case may be a
ground for an administrative charge (Sec. 7, Rule 65, Rules of
Court).
Remedy in order to interrupt the course of the principal case
. The petitioner should secure a temporary restraining
order or a writ of preliminary injunction enjoining th
public respondent from proceeding with the case and for
the preservation of the rights of the parties pending such
proceedings. When so secured, the public respondent shall
not proceed with the principal case during the period that
the temporary restraining order or the writ of preliminary
injunction is in effect (Sec. 7, Rule 65, Rules of Court). Bar
2013

658 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Certiorari under the Constitution and the Rules of Court; the
expanded concepts of certiorari and prohibition in relation
to the power of judicial review
1. Rule 65 of the Rules of Court clearly provides that
the respondent in a petition for certiorari is a tribunal, board,
or officer exercising judicial.• or quasi-judicial function (Sec.
1, Rule'65{'Rules of Court). TRe nile, therefore, is that, Jrider
Rule 65, "petitions for certiorari and prohibition may be
invoked only against tribunals, corporations, boards, officers,
or persons exercising judicial, quasi-judicial or ministerial
functions, and not against those respondents exercising
legislative or quasi-legislative functions (Cawad v. Abad, G;R.
No. 207145, July 28, 2015).
However, pronouncements of the Court have clarified that
a petition for certiorari could be :invoked against respondents
the functions of which are neither judicial nor quasi-judicial.
Such pronouncements have, likewise, categorically broadened
the purpose of a petition for certiorari to include raising
constitutional issues and reviewing and/or nullifying the acts
of legislative and executive officials.
2. The expanded concept of certiorari has, as basis, the
power of judicial review enshrined in the Constitution. This
power has been invoked by the Court, on several occasions,
to review, by certiorari, acts of government agencies or
instrumentalities for gravely abusing their discretion
amounting to lack of jurisdiction even if such agencies or
instrumentalities acted not in the exercise of judicial or quasi­
judicial functions.
In Araullo u. Aquino III, C.R. No. 209287, July 1, 2014,
a case assailing the constitutionality of the Disbursement
Acceleration Program (DAP) and other issuances of the
Department of Budget and Management, the Court ruled:
"With respect to the Court, however, the remedies of
certiorari ancl prohibition are necessarily broader in scope
and reach, and the writ of certiorari or prohibition may
be issued to coaect errors of jurisdiction committed not
only by a tribunal, corporation, board or officer exercising
CHAPTER IX 659
POST JUDGMENT REMEDIES
judicial, quasi-judicial or ministerial functions but also
to set right, undo and restrain any act of grave abuse of
discretion amounting to lack or excess of jurisdiction by
any branch or instrumentality of the Government, even
if the latter does not exercise judicial, quasi-judicial
or ministerial functions. _This application is expressly
authorized by the text of the second paragraph of Section
1" (Italics s11pplie d).
The provision invoked by the Court to justify the broad
application of certiorari even to acts which are neither judicial
nor quasi-judicial is the second paragraph of Sec. 1 of Art. VIII
of the Philippine Constitution defining judicial power and
· which includes the duty "x x x to determine whether or not
there has been a grave abuse of discretion amounting to lack
of jurisdiction on the part of any branch or instrumentality of
the Government." Thus, declared the Court, "the petitions for
certiorari and prohibition are appropriate remedies to rais
constitutional issues and to review and/or prohibit or nullify
the acts of legislative and executive officials."
Hence, even when an administrative agency does not
perform a judicial, quasi-judicial or ministerial function, the
Constitution mandates the exercise of judicial review when
there is an allegation of grave abuse of discretion (De Lima u.
Reyes, G.R. No. 209330, January 11, 2016). This is because the
constitution vests upon the Court, no� only the power to settle
actual controversies but also to determine whether or not an
agency of the government commits acts constituting grave
abuse of discretion (Information Technology Foundation of
the Philippines u. Commission on Elections, C.R. No. 159139,
June 6, 2017; for further readings, see also Ifurung u. Morales,
C.R. No. 232131, April 24, 2018).
3. The expanded concept of judicial review found
expression in yet another case. Here, a candidate for the
position of Associate Justice in the Supreme Court, filed a
petition for certiorari and mandamus seeking to compel the
Judicial and Bar Council (JBC) to include him in the list of
nominees to be submitted to the President of the Philippines.
He claimed that the JBC acted in grave abuse of discretion
 CHAPTERIX 661
660 CML PROCED URE,VOLUMEI
THE BAR LECTURES SERIES POST JUDGMENT REMEDIES

competitive
amounting to lack of jurisdiction in excluding him, despite plant, which supposedly contravened the policy of
to exercise
having garnered a sufficient number of votes to qualify for bidding. The PSALM was created by law not
to undertake
the position. He also decried his deprivation of his right to either judicial or quasi-judicial functions but
s of certain
due process when he was not given the opportunity to defend certain mandated privatization of disposable asset
ming juris dicti on over
himself against the objections to his nomination by a member government entities. The basis for assu
on the judic iary
of the JBG. While the Court agreed with the position of the the petition was the Constitutional mandate
a grav e abus e of
JBC t_hat mandamus will not lie to compel the performance of "to determine whether or not thew has been
part �f any
the latter's discretionary duty, the Court disagreed with the discretion amounting to lack of jurisdiction on the
of the Gove rnme nt" (Osm eiia III v.
argument that certiorari does not lie against the JBC. Although branch or instrumentality
Corporation,
Rule 65 of the Rules of Court requires that the ·respondent in Power Sector Assets and Liabilities Management
such petition must exercise either a judicial or quasi-judicial G.R. No. 212686, September 26, 2015 ).
striking
function, the Court explained that the concept of judicial 6. In a later pronouncement, the Court, in
ing a former
review in the 1987 Constitution allows it to take cognizance down the order of the Sandiganbayan deny
of the petition (Jardeleza v. Sereno, G.R. No. 213181, August in the plun der case against
president's demurrer to evidence
19, 2014; Case also cited in Aguinaldo v. Aquino III, G.R. No. conce pt of certiorari
her, justified, once again, the expanded
224302, November 29, 2016). thus:
4. In another case involving a petition for certiorari "The exercise of this power to correct grave abuse of
against the Judicial and Bar Council the Court declared that discretion on the part of any branch or instrumentality of
"it is clear that the JBC does not fall within the scope of a the government cannot be thwarted by rules of procedure
tribunal, board, or officer exercising judicial or quasi-judicial to the contrary or for the sake of convenience on one side.
functions. In the process of selecting and screening applicants, This is because the Court has the bounded constitutional
the JBC neither acted in any judicial or quasi-judicial capacity duty to strike down grave abuse of discretion whenever
and wherever it is committed" (Macapagal-Arroyo v.
nor assumed unto itself any performance of judicial or quasi­
People, G.R. No. 220598, July 19, 2016).
judicial prerogative. However, since the formulation of
guidelines and criteria, including the policy that the petitioner· July
In Macapagal-Arroyo v. People, G.R. No. 220598,
now assails, is necessary and incidental to the exercise of the the order of
19, 2016, a case in which the Court set aside
JBC's constitutional mandate, a determination must be made nce of the
Sandiganbayan denying the demurrer to evide
on whether the JBC has acted with grave abuse of discretion powe r unde r the Cons titution to
accused, the Court invoked its
amounting to lack or excess of jurisdiction in issuing and and desp otic exercise
review capricious, arbitrary, whimsical
enforcing the said policy." The Cour:t took cognizance of the ume ntality.
of discretion by any government agency or instr
petition on the basis o°f the definition of judicial power in the the power of
The Court, in this case, once again invoked
Philippine Constitution its pronouncements in the earlier Constitution,
judicial review under Sec. 1 of Art. VIII of the
case of Araullo u. Aquino III (Villanueva u. Judicial and Bar Arau llo u. Aquin
power also invoked in the earlier case of
Council, G.R. No. 211833, April 7, 2015).
G.R. No. 209287, July 1, 2014.
5. In yet another case, the Court also took cognizance of a petition
7. In a later case, the Court explained that
a petition for certiorari involving the sale by the Power Assets tiny the act of
for certiorari is a proper remedy to put into scru
and Liabilities Management Corporation (PSALM) of a power in persons
the President of the Philippines in appointing certa
 662 CIVIL PROCEDURE, VOLUME i
THE BAR LECTURES SERIES
to the judiciary if it is alleged that the act constituted a grave
abuse of discretion amounting to lack of jurisdiction and even
if the act of the President is not an exercise of either a judicial
or quasi-judicial function. The remedy is justified under the
definition of judicial power in the Constitution (Aguinaldo v.
Aquino IIL G.R. No. 224302; November 29, 2016).
8. In yet anoth�r case filed agcj'.insf certain Metro
Manila cities to qtiesticm the validity of certain ordinances
imposing curfew hours on minors, the Court, also sustained, on
procedural grounds, a petition for certiorari and prohibition,
based on the expanded concepts of such special civil actions.
Here, the Court reiterated the principle that" 'Under the 1987
Constitution, judicial power includes the duty of the courts of
justice not only 'to settle actual controversies involving rights
which are legally demandable and enforceable,' but also 'to
determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government' "
(Samahan ng mga Progresibong Kabataan [SPARK] v. Quezon
City, C.R. No. 225442, August 8, 2017).
When a petition for declaratory relief is proper and not a
petition for certiorari
It has been held that "petitions for certiorari. and
prohibition are appropriate remedies to raise constitutional
issues and to review and/or prohibit or nullify the acts of
legislative and executive officials" (Francisco, Jr. v. Toll
Regulatory Board, G.R. No. 166910, October 19, 2010 as cited
in Araullo v. Aquino IIL supra).
-The above pronouncements should not, however, be
construed to be the general rule. In a more recent case, the
Court ruled that when the petition assails the validity of the
issuances of a department of the government (like that of the
Energy Regulatory Commission), a petition for declaratory
relief is the correct remedy. Held the Court:
"Since petitioners assail the validity of the ERC
issuances and seeks to d�clare them unconstitutional, a
CHAPTER IX 663
POST JUDGMENT REMEDIES
petition for declaratory relief under Rule 63 of the Rules
is the appropriate remedy. Under the Rules, any person
whose rights are affected by any governmental regulation
may, before breach or violation thereof, bring an action
in the appropriate Regional trial Court to determine any
question of validity arising, and for a declaration of rights
thereunder" (Rosales u. El'J,ergy Regulatory Commission,
G:R. No. 2001852, April 5/'f016).
·D. Collateral Attack of a Judgment
Distinction between a direct attack from a collateral attack
1. A direct attack of a judgment is made through ar
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, th
aggrieved party may sue for recovery. A collateral attack i.
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 render
said judgment, has no jurisdiction (Co v. Court of Appeals, 19
SCRA 705, 710).
2. An earlier case explains:
"Under existing rules there are three (3) 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 (6) months after such
judgment was entered. The second is by direct action
to annul and enjoin the enforcement of the judgment.
This remedy presupposes that the challenged judgment
is not void upon its face, but is entirely regular in form,
and the alleged defect is one which is not apparent upon
its face or from the recitals contained iri the judgment.
664 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES

xx x 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).
Chapter X

�oOo-
EXECUTION AND SATISFACTION
OF �,.UDGMENTS
w/o execution thejudgment is noting
,

Meaning of execution -
judgment is not valid forever 10
y
is
-

Execution is the remedy afforded for the satisfaction

of a judgment. Its object being to obtain satisfaction of th e
validity
judgment on which the writ is issued (Cagayan de Or
Coliseum v. Court of Appeals, 320 SCRA 731, 754). It is the
fruit and end of the suit, and is the life of the law (Ayo
Violago-Isnani, 308 SCRA 543, 551).
went can
su dy Part of the judgment to be executed
1. The dispositive portion (also called "fallo') of the
be revived judgment is that part which is subject to execution under Rule
39 of the Rules of Court.
↳ another 2. Jurisprudence considers this portion of the
judgment as that which finally Vfsts rights upon the parties,
sets conditioiis for· the exercise of those rights, and imposes
v0 yrs 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 (Globe Telecom, Inc. v. Florendo­
Flores, 390 SCRA 201, 2101,

When e}tecution shall issue

1. It is settled that upon the finality of the judgment,
the prevailing party in entitled, as a matter of right, to a writ
of execution to enforce the judgment, the issuance of which

665
 666 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
is a ministerial duty of the court (Calilung v. Paramount
Insurance Corporation, G.R. No. 195641, February 3, 2016).
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 un�lterable, and
may no longer be modified in any:reflpect (Philippine T,rust;,
Company v.>Ro;;as, G.R. No. 171897, :October 14, 2015; For
further readings, see also Yap v. Lagtapon, G.R. No. 196347,.
January 23, 2017).
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 (Orix Metro Leasing and Finance Corporation v.
Cardline, Inc., G.R. No. 201417, January 13, 2016).
Ir-low execution shall issue → she wilt will execute
1. Execution shall issue as a matter of right on motion. prescription period will be remanded to the court of origin. All that is required is for
death
This is plain from the tenor of Sec. 1 of Rule 39. There is, run upon entry of
therefore, a need to file a motion before the issuance of a writ of court
of execution.
Hence, a judge may not order execution of the judgment
in the decision itself (Lou v. Siapno, 335 SCRA 181, 187).
2. In Lou v. Siapno, ibid., the Court declared that,
even in judgments which are immediately executory, "there
must be a motion to that effect and a hearing called for the
purpose." Also, "under Supreme Court Circular No. 24-94, a
motion for the issuance of a writ of execution must contain a
notice to the adverse party" (Pallada v. Regional Trial Court
of .Kalibo, Aklan, Br. I, 304 SCRA 440, 446). Thus, in one
more recent pronouncement, the Court explicitly ruled that
it was wrong for a petitioner's counsel to argue that since the
decision approving the parties' compromise was immediately
executo:ry, there vvas no need to file a motion for execution
CHAPTER X 667
EXECUTION AND SATISFACTION OF JUDGMENTS
(Ilaw Buklod ng Manggagawa [IBM] Nestle Philippines, Inc.
Chapter [Ice Cream and Chilled Products Division] v. Nestle
Philippines, Inc., G.R. No. 1986,75, September 23, 2015).
3. Because of the present phraseology of Sec. 1 of Rule
39, rulings like those made in De Mesa v. Court ofAppeals, 231
SCRA 773, 781, to the effect that where execution is a matter
nf ri.ght, the judgment: debtor need not be giyen :m advanced
. notice of the application for execution nor be afforded a prior
hearing thereon, must necessarily be deemed superseded.
- Where application for execution made
1. 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, Rule 39, Rules of
Court; Regulus Development, Inc. v. De la Cruz, G.R. No.
198172, January 25, 2016).
2. In filing a motion for execution of an appealed
decision, there is no need to wait for the records of the case to
the appeal to have been duly perfected and finally resolved
before execution may be applied for (Bergonia v. Decano, 317
SCRA 660, 665). This is because when the judgment oblige '
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 the said judgment,
with notice to the adverse party (Sec. .l, Rule 39, Rules of
Court) 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.
-
problem in execution
3. If for whatever reason, 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, Rule 39, Rules of
Court).
 CIVIL PROCEDURE, VOLUME I
668
THE BAR LECTURES SERIES
No appeal from an order of execution
It is a well-recognized rule that an appeal may be taken
from a judgment or final order that completely disposes of the
case (Sec. 1, Rule 41, Rules of Court).
The same provision, likewise, provides· for matters from ·
which no i
appeal may be taken from. One of whic _ h is an
order of he2ution. "No appeai-':may be taken from an.order of
execution" (Sec. l{e], Rule 41, Rules of Court). A party desiring ← Remedy in
to assailan order of execution may instead file an appropriate no appeal from
special civil action under Rule 65 of the Rules of Court (Sec. 1,
Rule 41, Rules of Court).
Form and contents of writ of execution
The writ of execution is issued in the name of the Republic
of the Philippines and shall state (a) the name of the court
which granted the motion, (b) the case number and title, (c)
the dispositive portion of the judgment or order subject of the
execution, and (d) shall require the sheriff or other proper
officer to whom it is directed to enforce the writ according to
its terms (Sec. 8, Rule 39, Rules of Court).
-
Duty of the sheriff
A sheriff's duty in the execution of a writ is purely
ministerial; he is to execute the order of the court strictly
to the letter. He has no discretion whether to execute the
judgment or not. He is mandated to uphold the majesty of the
law as embodied in the decision (Raut-Raut u. Gaputan, A.M.
No. P-14-3214, September 14, 2015). Once the writ is placed in
the hands of the sheriff, he is obligated to execute the order of
the court strictly to the letter and with reasonable promptness -
(Olympia-Geronilla u. Montemayor, Jr., A.M. No. P-17-3676,
June 5, 2017).
Writ of execution should conform to the dispositive portion
o-r the judgment
l. A writ of execution derives its validity from the
judgment it seeks to enforce. Hence, i_t should not vary the .
CHAPTER X 669
EXECUTION AND SATISFACTION OF JUDGMENTS
terms of the judgment or go beyond its terms (Chiquita
Brands, Inc. v. Omelia, G.R. No. 189102, June 7, 2017). The
general rule is that the writ of execution should conform to the
dispositive portion of the decision to be executed, and that the
execution is void if it is in excess of and beyond the original
judgment or award (Santos v. Commission on Elections, G.R.
. . No. 235058, Sep�?,mber 4, 2018).
2. The writ may not vary the te�ins o:f the judgment to 1
be executed (Buan v. Court of Appeals, ,235 SCRA 424, 432). .
order
of execution Thus, if the judgment does not provide for the payment of
interest, the writ of execution cannot modify the judgment by
date
•
of entry requiring the judgment obligor to pay interest. That part of
date
•
of promulgationthe writ imposing interes
t is void (Solidbank Corporation v.
Court of Appeals, 379 SCRA 159, 166).
-
Lifetime of the writ of execution (Bar 1995)
The writ shall continue in effect during the period within
which the judgment may be enforced by motion (Sec. 14, Rul
39, Rules of Court). Hence, the writ is enforceable within th
e
five -year period from entry of judgment as provided for in
Sec. 6 of Rule 39 because within that period, the writ may be
enforced by motion.
When execution will be denied
612 l. After a judgment has become final and executory,
the rule is that execution becomes the ministerial duty of the
court (Fideldia u. Songcuan, 465 SCRA 218, 226).
2. The rule, however, is far from absolute. The trial
court may refuse to have the judgmen� executed in _certain
cases, as: XPN
(a) When the judgment has already been executed
by the voluntary compliance thereof by the parties
(Cunanan v. Court of Appeals, 25 SCRA 263, 264).
1Vote: There is no need for execution in this case
because the judgment has already been satisfied by the
voluntary act of the parties. This is a situation where
670 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
there is a satisfaction of the judgment without need for a ① then is
writ of execution issued by the court.
that is
(b) . When the judgment has been novated by the
parties (Dormitorio v. Fernandez, 72 SCRA 366, 393).
Note: The parties, despite the existence of a judgment, ·
ar,<? at liberty to novate, a judgment by entering into a
compromise. A compromise is a contract recognized by
substantive law (Art: 2028, Civil Code of the Philippines).
(c) When a petition for relief is filed and a
preliminary injunction is granted in accordance with
Sec. 5 of Rule 38. Also, when execution of the judgment is
enjoined by a higher court;
(d) When the judgment sought to be executed
is conditional (Co- Unjieng v. Hijos Mabalacat Sugar
Company, 70 Phil. 380, 384) or when the judgment sought
to be executed is incomplete (Del Rosario v. Villegas, 49
Phil. 634, 644; Ignacio v. Hilarion, 76 Phil. 605);
(e) When facts and circumstances transpire which
would render execution inequitable or unjust (Bachrach
Corporation v. Court of Appeals, 296 SCRA 487, 495);
(f) When execution is sought more than five years
from its entry without the judgment having been revived
(Cimanan iJ. Court of Appeals, 25 SCRA 263, 264).·
(g) When execution is sought against property
exempt from execution under Sec. 13 of Rule 39; or
(h) When refusal to execute the judgment has
become imperative in the higher interest of justice
(Philippine Veterans Banh v. Intermediate Appellate
Court, 78 SCRA 645; So v. Court of Appeals, 388 SCRA
107, 111; For further readings, see Salazar v. Felias, G.R.
No. 213972, February 5, 2018).
Quasha! 011' a writ of execution (Bar 2009)
It is a well-entrenched rule that the execution of final
and executory judgments may no longer be contested and
CHAPTER X 671
EXECUTION AND SATISFACTION OF JUDGMENTS
. ""
"
appeal
prevented, and no appeal should lie therefrom. Otherwise,
judgment cases would be interminable, and there would be negation of
immediately the over-mastering need to end litigations.
executory There maybe instances, however, when errors may
be committed prejudicial to the rights of a party and do
call for cor!'ection by a superior cour�. In these exceptional
circumstances, considerations of:justice and equity dictate
that there be some mode available to the party aggrieved
of elevating the question to a higher court. That mode of
elevation may be either by appeal or by a special civil action of
,
certiorari, prohibition, or mandamus. -
These exceptional circumstances may prevent the execu­
tion of a judgment or allow the quashal of a writ of execution
already issued. Examples of these grounds are:
(a) when the writ of execution varies the judgment;
(b) when there has been a change in the situation
of the parties making execution inequitable or unjust;
(c) when execution is sought to be enforced against
property exempt from execution;
(d) when it appears that the controversy has never
been submitted to the judgment of the court;
(e) . when the terms of the judgment are not clear
enough and there remains room for interpretation
thereof;
(f) when it appears that the writ of execution has
been improvidently issued;
_ (g) when it appears that the writ of execution is
defective in substance, or is issued against the wrong n
•
party, or that the judgment debt has been paid or otherwis e
satisfied, or the writ was issued without authority
(Reburiano u. Court of Appeals, 301 SCRA 342, 349,
citing Limpin v. IAC, 147 SCRA 516, 522-523). A recent
case reiterates the above rule and adds that payment or
satisfaction of the judgment debt also constitutes a ground
for the quashal of the writ of execution already issued. A
 672 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
writ of execution may also be set aside or quashed when
it appears from the circumstances of the case that the
writ was improvidently issued (Chiquita Brands, Inc. v.
Omelia, G.R. No. 189102, June 7, 2017).
Modes of execution of a judgment (Bar 1982; 1987; 'i997)
1. There are :two ·modes of executing <a final and
executory judgment, to wit:
(a) execution by motion if the enforcement of the
judgment is sought within five years from the date of its
entry; and
L-wn.to/-
(b) execution by independent action if the five-year
period has elapsed and before it is barred by the statute
of limitations (Sec. 6, Rule 39, Rules of Court; Spouses
= ±
Larry and Flora Davis v. Spouses Florencio and Lucresia
Davis, G.R. No. 233489, March 7, 2018).
The purpose of the rule in prescribing time limitations
for enforcing judgments or actions is to prevent litigants
from sleeping on their rights (Ilaw Buklod ng Manggagawa
[IBM] Nestle Philippines, Inc. Chapter [Ice Cream and Chilled
Products Division] v. Nestle Philippines, Inc., G.R. No. 198675;
September 23, 2015).
2. The rule is that the court . could issue . a writ of
execution by motion within five years from finality of the
decision. A writ of execution issued after the expiration of
that period is null and void. There is a need for the interested
party to file an independent action for revival of judgment.
The reason is that after the lapse of the five-year period,
. the judgment is reduced to a mere right of action, which
judgment must be enforced, as all other ordinary actions, by
-
the institution of a complaint in the regular form. Such action
must be filed within 10 years from the date the judgment
became final (Terry u. People, 314 SCRA 669, 673; Ilaw Buhlod
ng 1Vlanggagawa [IBM] Nestle Philippines, Inc. Chapter [Ice
Cream and Chilled Products Division} v. Nestle Philippines,
Inc., G.R. No. 198675; September 23, 2015) which is now the
date of its entry (Sec. 2, Rule 36, Rules of Court). Bar 200'7
CHAPTERX 673
EXECUTION AND SATISFACTION OF JUDGMENTS
3. It was held that if the writ of execution was issued
and the levy made within five years from the entry of the
judgment, the auction sale may be made even after the five­
year period. The sale of the property and the application of
the proceeds are merely the means to carry out the writ of
execution and a levy already validly made: Accordingly, the·
levy is,Jhe,.�ssential act by v.r.hic]:i the property is �et apart
for thlsatisfaction of the judgment (Government v:-Echaus,
71 Phil. 318, 320; Vda. De Quiambao v. Manila Motor Co., 3
SCRA 444, 450). The sale must, however, be made within 10
years during which the judgment can be enforced (Ansaldo v.
Fidelity & Surety Company, 88 Phil. 547, 548; Jalandoni v.
execution
¥
PNB, 108 SCRA 102).
✓
Revival of judgment (Bar 1997)
1. An action for revival of judgment is no more than
syrsattersyr,
a procedural means of securing the execution of a previou
to ↓
judgment which has become dormant after the passage of fiv
execute tilewitioh
years without it being executed upon motion of the prevailin
↓ 9- teuiualof
it not
party. It is not intended to re-open any issue affecting the merit.
judgment of the judgment debtor's case nor the propriety or correctness
I
↓
wait -
null of the first judgment. An action for revival of judgment is a new
must be
filed and independent action, different and distinct from either th
andria
e
wliuioyrs
from the date of recovery of property case or the reconstitution case, wherein
entry the cause of action is the decision itself and not the merits of
↓ the action upon which the judgment sought to be enforced i f
new action
rendered. Revival of judgment is premised on the assumption
that the decision to be revived is already final and executory
(Saligumba v. Palanog, 573 SCRA 8, 15-16).
Being a mere right of action, the judgment sought to be
revived is subject to defenses like (a) matters of jurisdiction,
(b) prescription, (c) payment, or (d) other defenses arising
after the finality of the first judgment. It may even be subject
to counterclaims arising out of transactions not connected
with the former controversy (See Basilonia v. Villaruz,
G.R. Nos. 1911370-Tl, August 10, 2015).
The action to revive a judgment _
must be filed within 10
years from the date the judgment became final because an
Ianto
674 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
action to enforce a judgment prescribes in 10 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 its
entry (Sec. 2, Rule 36, Rules of Court), the prescriptive period
is supposed to run from the date of entry of the judgment.
2. This action fa revive a judgni�nt iii Sec. 6 of Rule
39 is not the "re;ival of judgment" referred to in Sec. 34 of
Rule 39 where the terms are actually used in the Rules. In
the latter rule, the revival of judgment is not sought for by
the judgment obligee or the prevailing party. It is sought
for by the purchaser of a real property that was sold in an
execution sale. Despite being the purchaser, he was not able
to acquire possession of the property bought by him or if he
ever did acquire possession, he was evicted therefrom for one
reason or another as when the judgment under which the
sale was conducted was reversed, or the property sold to him
was actually exempt from execution, or there was a rightful
claimant to the property. The purchaser, under such situation,
is allowed by the Rules to file a motion in the same action or
in a separate action for the purpose of recovering from the
judgment obligee the price he paid (including interest) for the
property in the execution sale. He may, as an option, also file a
motion to revive the judgment in his name to recover the price
with interest.
In Sec. 34, the judgment has actually been executed
unlike in Sec. 6 where the judgment has not been executed
on motion within the five-year period set by the Rules. Sec. 34
seeks to revive the judgment that was already executed.
3. When a judgment is revived undet Sec. 6 of Rule 39,
such revived judgment may also be enforced by motion within
five years from the elate of its entry and thereafter by action
also before it is barred by the statute of limitations (Sec. 6,
Rule 3.9, Rules of Court).
4. A revived judgment is deemed a new judgment
separate and distinct from the original judgment. It is not a
continuation o:f the original judgment. The action to revive
CHAPTERX 675
EXECUTION AND SATISFACTION OF JUDGMENTS
the judgment is a new action and results in a new judgment
constituting a new
= cause of action with a new period of
limitations.
Hence, the 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 (Philippine National Bank v._Bondoc, 14
'· SCRA 770, 770- 772). -
The Court in PNB v. Bondoc, explains:
"A judgment is revived only when the same cannot
be enforced by motion, that is, after five years from the
time it becomes final. A revived judgment can be enforced
by motion within five years from its finality. After said
five years, how may the revived judgment be enforced?
Appeliee contends that by that time ten years or more
would have eiapsecl since the first judgment becomes
final, so that an action to enforce said judgment would
then be barred by the statute of limitations.
Appellee's theory relates the period of prescription t 0
the date the original judgment became final. Such a stand is
action -
not able to inconsistent with the accepted view that a judgment reviving
determine penning a previous one is a new and different judgrnent x x x.
estimation RTC The source of Section 6 aforecited is Section 447 of the
-
Code of Civil Procedure which in turn was derived from the
Code of Civil Procedure of California. The rule followed in
California in this regard is that a proceeding by separate
ordinary action to revive a judgment is a new action rather
than a continuation of the old, and results in a new judgment
constituting a new cause of action, upon which a new period of
limitations begins to run."
Some rulings (PNB v. Delosa, 32 SCRA 26'6'; Luzon
Surety Co., Inc. v. IA.C, G.R. No. 72645, J·une 30, 1987) held
that the 10-year period should run from the finality of th e
original judgment and not from the finality of the revived
judgment. The ruling in Delosa practically abandoned Bondoc
on the matter of the reckoning point of the prescriptive period.
Bondoc, however, was resu:crect2d in the present provision of

676 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Sec. 6 of Rule 39 which declares in its last sentence that "The
revived judgment may also be enforced by motion within five
years from the date of its entry and thereafter by action before
it is barred by the statute of limitations."
5. 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 thi,;'judgment, the saJd judgment is reducecl''to
a right of action which must be enforced by the institution of
a complaint in a regular court within 10 years from the time
the judgment became final (Bausa v. Heirs of Juan Dino, 563
SCRA 533, 540-541).
6. Jurisprudence also specifically declares that: "x x x a
proceeding by separate ordinary action to revive a judgment is
a new action rather than a continuation of the old, and results
in a new judgment constituting a new cause of action, upon
which a new period of limitation begins to run" (Philippine
National Bank v. Bondoc, 14 SCRA 770, 772).
It bears emphasizing always that an action for revival
of a judgment is a new and independent action. It is different
and distinct from the original judgment sought to be revived
or enforced. A party aggrieved by a decision of the court may
appeal the decision, but only insofar as the merits of the action
for revival is concerned. The new original judgment, which
is already final and executory, may no longer be reversed,
altered or modified (Heirs of Miranda, Sr. v. Miranda, G.R.
.No. 179638, July 8, 2013).
7. 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 (Caiiia v. Court of Appeals, 239 SCRA 252,
262). The consideration of any issue affecting matters that
could have been raised in the previous case must be deemed as
definitely foreclosed (Philippine Reconstruction Corporation,
Inc. v. Aparente, 45 SCRA 217, 222). It is not meant to retry
the case all over again (Enriquez v. Court of Appeals, 372
,SCRA 372, 376).
CHAPTER X 677
EXECUTION AND SATISFACTION OF JUDGMENTS
8. Comment: If the action to revive a judgment (or an
action upon a judgment according to Aldeguer v. Gemelo, 68
Phil. 421) is a new cause of action and is not a continuation
of the old, it should not, in this sense, be dependent upon the
previous action for its jurisdictional requirements and does not
necessarily have to be filed in the same court which rendered
;;_the jµdgment.
.
H is submitted that the new action, Le., tb revive the
judgment would necei_,sarily raise the fundamental issues of
whether or not the plaintiff has a right to h�ve the judgment
revived and to have a new right of enforcement from its revival,
issues that by nature are incapable of pecuniary e1:,timation.
Inevitably, a litigant may find himself in a situation where
he files the action in the Regional Trial Court to revive a
judgment rendered by a Municipal Trial Court, unless of
course, the Supreme Court holds otherwise.
rAlso, even the venue of the case may be different in ar
action to revive a judgment. As the Court held in Aldeguer v.
Gemelo, supra:
"x x x it seems more convenient for the parties that
actions for the collection of judgments for a certain sum
of money be considered transitory in character because,
if for example, a judgment was rendered in the Court
of First Instance of Zamboanga eight (8) years ago, and
the parties now reside in Cagayan, it would certainly be
burdensome for them to be compelled to go to Zamboanga
to demand enforcement of the judgment. After all, once a
judgment has become final and executory, the questions
decided therein cannot again be raised, and to determine
whether the same has already been paid or not, it is
·unnecessary to examine anew the whole record of the
decided case. Consequently, it is of no advantage at all
that the court where said proceedings were had be the
same to take cognizance of the action for the collection of
the judgment."
It is submitted that it is in this light that the 1957 case
of Torrefranca, et al. v. Albiso, 102 Phil. 732, should be rA­
examined.
678 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
The facts had their ongms in an action to revive a
judgment filed in the same court which more than five years
ago, rendered a judgment in an action for forcible entry
against the defendant. The defendant opposed the action but
the justice of the court declared the judgment revived. The
subsequent appeal to the Court of First Instance was dismissed
and plaintiff went to the Supreme Court on a question of law
- whether or riot a justice of the peace court has the authority
to revive its own judgment.
In resolving the issue, the Supreme Court ruled that
the Judiciary Act of 1948 gave justice of the peace courts
jurisdiction over actions of forcible entry and unlawful detainer
"and also empowers themxxx to issue all processes necessary
to enforce their judgments and orders. Needless to say, the
revival of a judgment is a necessary step in its enforcement
xxx"
The reason for the decision is clear: since the court has
jurisdiction over an action for forcible entry, it also has the
power to revive its own judgment as a necessary step for its
execution. The rationale ofTorrefranca in sustaining the power
of the court to revive its own judgment is clearly predicated on
the jurisdiction of the trial court over a case of forcible entry.
The pronouncements in Torrefranca obviously assumes that
the revived judgment is a continuation of the old judgment
and viewed the revival of the judgment as merely incidental
to or ancillary to the execution of the original judgment. The
decision did not consider the rule that the cause of action of
the original judgment is separate and distinct from that of
the cause of action to revive a judgment which, under the
decisions more recent than those in Torrefranca, is an entirely
new and independent action. In a nutshell, the rationale of the
decision in Torrefranca does not fall squarely with the more
recent pronouncements of the Court that an action to revive a
judgrn.ent is a new cause of action and not a mere continuation
of the original action.
The action to revive a judgment is unlike the remedy of
scire facias, which the Court declared is a mere incident of the
original suit and must be instituted in the court where said suit
CHAPTER X 679
EXECUTiON AND SATISFACTION OF JUDGMENTS
was brought. Such remedy does not exist in the Philippines and
are not original actions but mere continuances of the former
suit. Thus, the owner of a judgment may use such judgment
as a cause of action and bring suit thereon in the same court
or any court of competent jurisdiction, and prosecute such
suit tci final judgment (Aldeguer u. Gemelo, 68 Phil. 421, citing
Gould ?f:--Rayden, 63 Ind.., 443; Palmer v. Glover, 73 Ind., 529;
Campbel V. Martin; 87 Ind., 577 and B;ckri�ll V. Becknell, ':,'
110 Ind., 47; For further readings, see Compania General de
Tabacos v. Martinez and Nolan, 29 Phil. 515).
9. Where, however, the action filed is to revive
a judgment in a labor case, regular courts are bereft of
jurisdiction to entertain disputes involving employer-employee
relationships. Thus, in Maricalum Mining Corporation v.
NLRC, 298 SCRA 378, 387, the Court sustained the propriety
of the institution of the action for revival of a judgment in th
NLRC. still
10. In a more recent case one issue sought to be resolved
by the Court was whether the RTC has original jurisdiction
over an action to revive a judgment. The Court held: As to
whether the RTC has jurisdiction, [the Court] rule[s] in the
affirmative. An action for revival of judgment may be filed
either "in the same court where said judgment was rendered
or in the place where the plaintiff or defendant resides or
in any other place designated by the statutes x x x In this
case, respondent filed the Petition for Revival of Judgment
in the same court which rendered the Decision x x x" (Heirs
of 111iranda, Sr. v. Miranda, G.R. No. 179638, July 8, 2013;
Citations of the Court omitted).
Note: It is hoped that in a not too distant future, a cas
would be brought before the Court with the appropriate issu
that would require an in-depth treatment of the full natur
an action to revive a judgment in relation to jurisdiction.
Venue of an action io revive a judgment
What is the proper venue of an action for revival of
judgments? This question was answered in the case of Infant
v. Aran Builders, Inc., 531 SCRA 123, 129-130.
680 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
The court explained, thus:
"xxx the proper venue depends on the determination
of whether the present action for revival of judgment is
a real action or a personal action x x x 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 cou,rt of. the place where th� reai
pl'operty is located. If such� action does not fall under th�
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 x x x"
-
When the five-year period is interrupted (Bar 1993)
1. While the rule is that the execution of a judgment
can no longer be effected by mere motion after five years
from the date of entry of the judgment, the Court in certain
instances, allowed execution of the judgment by mere motion
despite the lapse of the five-year time line. 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 (See Camacho v. Court of Appeals, 287 SCRA 611;
Republic v. Court of Appeals, 260 SCRA 344, 349-350). Delays
attributable to the defendant have the effect of suspending
the-running of the prescriptive period for the enforcement of
the judgment (Camacho v. Court of Appeals, 287 SCRA 611;
Republic v. Court of Appeals, 260 SCRA 344, 349-350).
2. There are instances where the Court allowed
execution by motion even after the lapse of five years upon
meritorious_ grounds. Th�se 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 (Republic v. Court of Appeals, ibid.;
Rizal Commercial Banhing Corporation v. Serra, G.R. No.
203241, July 10, 2013). An example is when the writ could
not be implemented because the land subject of the action
had already been sold to another prompting the judgment
obligee to file an action for annulment. of title against the new
"'
CHAPTER X 681
EXECUTION AND SATISFACTION OF JUDGMENTS
registered owners (Spouses Larry and Flora Davis v. Spouses
Florencio and Lucresia Davis, G.R. No. 233489, March 7,
2018).
3. It has been held that in computing the time limit for
enforcing a final judgment, the general rule is that the time
when execution,is stayed, either by a�reement of the parties
for a definite tiine, b'y 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
Court of Appeals and in the Supreme Court challenging the
trial court's judgment as well as the writ of execution. Such
petitions suspended or interrupted the further enforcement of
the writ (Yau v. Silverio, and Macapagal v. Caho, 543 SCRA
520, 529).
4. The period may also be interrupted by the agreement
of the parties to suspend the enforcement of the judgment
(lvlacias v. Lim, 431 SCRA 20, 40).
:
When the five- and 10-year periods do not apply
The periods do not apply to (a) special proceedings, such as
land registration ·and cadastral cases, wherein the right to ask
for a writ of possession does not prescribe (Rodil v. Benedicto,
95 SCRA 137, 144-145); (b) 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 (Canonizado v. Benitez, 127 SCRA 610, 616).
Stay of execution o'f a judgment; exceptions
As a rule, an appeal perfected in due time stays the
execution of a judgment. There are, however, judgments, the
execution of which is not stayed by a pending appeal. These
judgments may be classified into tvvo general categories,
namely:

682 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
(a) Those judgments which by express provision of
the rules are immediately executory and are not stayed
by an appeal (Sec. 4, Rule 39, Rules of Court); and
(b) Those judgments that have become the object of
discretionary execution (Sec. 2, Rule 39, Rules of Court).
✓
Judgments not stayecfby appeal
1. The following judgments by express prov1s10n
of the Rules are immediately executory, enforceable upon
their rendition and shall not be stayed by an appeal taken
-
therefrom:
(a) judgment for injunction;
(b) judgment for receivership;
(c) judgment for accounting; and
(d) judgment for support (Sec. 4, Rule 39, Rules
of Court; Camino v. Pasagui, A. C. No. 11095, January
31, 2017 ; see also Ocampo v. Enriquez, G.R. No. 225973,
August 8, 2017).
discretionary
2. ↳ 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 courfin its discretion
-
may make an order, suspending, modifying, restoring or
granting the injunction, receivership, accounting or award of
support (Sec. 4, Rule 39, Rules of Court).
The stay of the execution of the above judgments, if
ordered by the trial court, 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 (Sec. 4, Rule 39,
Rules of Court).
3. Under Rule 70, a judgment rendered against the
defendant in an action for forcible entry and unlawful detainer
is, likewise, imrn.ediately executory upon motion. To stay
execution, the losing defendant has to perfect an appeal, file a
CHAPTER X i\iil
EXECUTION AND SATISFACTION OF JUDGMENTS
⊖
supersedeas bond executed in favor of the plaintiff to pay the
rents, damages, and costs that have accrued down to the tl
1,h,
1,11
time
ofthe judgment appealed from. He also has to deposit with the!,Ii,
appellate court the amount ofrent due from time to time u11cder
l,11
the contract or the reasonable value of the use and occupa·!llcJ1l
ion -
of the property, in case there is no contract (Sec. 19, ]1,tUte
70, Rules of Coµrt). Failure to co_mply with the requireµi.ur
ents
to stay execution entitles the plaintiff to execution of the 1,i,,
judgment (See Sugni Holdings a�d D�velopment Corpo�ct,l/(IJ/.
v. Paredes-Encinareal, A.M. No. RTJ-08-2102, October I I
2015).
Discretionary execution (Bar ·J sin; •i 995) %
"
/
.
1. The concept of discretionary execution constil,111 •
an exception to the general rule that a judgment cannolt Ibe 1,
'L.
executed before the lapse of the period for appeal or dl,ut1 ''ing
the pendency of an appeal. Under Sec. 1 of Rule 39, exec11utI ion
if!
1,
/l,1fll
shall issue only as matter of right upon a judgment or final
11
order that finally disposes of the action or proceeding 1upon
the expiration of the period to appeal therefrom if no appr
ppeal
has been duly perfected (For further readings, see OcamJPO V.
Enriquez, G.R. No. 225973, Aiigust 8, 2017).
11
2. A discretionary execution is called "discretio111i nary 1 )1
" 1
D-
precisely because it is not a matter of right. The executio11 tJota
judgment under this concept is addressed to the discretio1111
1' 11
,,
nary
power of the court. Unlike judgments that are final p,
and 1(i
executory, a judgment subject to discretionary exec11i,lo11lotion
cannot be insisted upon but simply prayed and hopod ec for f'oi-i
because a discretionary execution is not a matter of rightL,
.
Jurisprudence considers this kind of execution 1not 1111, an -
seasons
matter ofright, but ofjudicial discretion provided good retl ito11
therefor exist and the compelling grounds for the issua11ou
nce n('of
the writ must be stated in a special order after due h
(Bangkok Bank Public Company Limited v. Lee, 479
267, 273-274).
3. Be it noted that discretionary execution do
require a final and executory judgment but simply a ''
 684 CML PROCEDURE,VOLUMEI
T HE BAR LECTURES SERIES
judgment or order (Intramuros Tennis Club, Inc. u. Court of
Appeals, 341 SCRA 90, 105).
'
Requisites for discretionary execution
1. Under Sec. 2 of Rule 39, for the trial court to allow an
execution even before the expiration of the period for appeal
. or pending appeal,· there
· must be complianc�'.of
· ·· the following ,,·· ·
requisites:
(a) there must be a motion filed by the prevailing
party with notice to the adverse party;
(b) there must be a hearing of the motion for
discretionary execution;
(c) the motion must be 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;
(d) there must be good reasons to justify the
discretionary execution; and
.
(e) the good reasons must be stated in a special
order (Sec. 2, Rule 39, Rules of Court; Mancenido u. Court
of Appeals, 330 SCRA 419, 427; Bangkok Bank Public
Company Limited u. Lee, G.R. No. 159806, January
20, 2006; GeoZistics-Inc. u. Catewey Electronics, 582
SCRA 434, 445; see GSIS u. Prudential Guarantee and
Assurance, Inc., G.R. No. 165585, November 20, 2013).
2. In the exercise by the trial court of its discretionary
power to issue a writ of execution pending appeal, the
Court emphasizes the need for strict compliance with the
requirement that there be a statement of a good reason
supporting the execution because execution pending appeal is
the exception rather than the rule. The implementation of the
annulled writ does not render the issues of the case moot and
academic. In fact, Sec. 5 of Rule 39 even provides for a reversal
or annulment of an executed judgment as well as restitution
or reparation which justice and equity may require. A writ of
execution issued without complying with the requirement of
the rules is void. Where a writ of execution pending appeal is
CHAPTERX 685
EXECUTIONAND SATI SFACTIONOF JUDGMENTS
void, all actions and proceedings conducted pursuant to it are
also void and of no legal effect. It is as if no writ was issued
at all (Carpio u. Court of Appeals, 692 SCRA 162, 171-174,
February 27, 2013).
Discretionary execution is to be strictly construed
A di�cretionary execution -like an execution pei:iding
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 (Corona
International, Inc. u. Court of Appeals, 343 SCRA 512, 519).
It should be interpreted only insofar as the language thereof
fairly warrants, and all doubts should be resolved in favor of
the general rule (Planters Products; Inc. u. Court of Appeals,
317 SCRA 195, 204).
. reasons
Good
1. The existence of good reasons as justifications for
.
discretionary execution is essential. The good reasons are
what confer discretionary power upon the court to issue a writ
of execution pending appeal (Intramuros. Tennis Club, Inc. u.
Court of Appeals, 341 SCRA 90, 107).
"Good reasons call for the attendance of compelling
circumstances warranting immediate execution for fear that
favorable judgment may yield to an empty victory. In this
regard, the Rules do not categorically and strictly define what
constitutes "good reasons" and hence, its presence or absence
must be determined in view of the peculiar circumstances of
each case. As a guide, jurisprudence dictates that the "good
reason" yardsticlc imports a superior circumstance that will
outweigh injury or damage to the adverse party. Corollarily,
the requirement of "good reason" does not necessarily entail
unassailable and flawless basis but at the very least, an
invocation thereof must be premised on solid footing" (GSIS u.
Prudential Guarantee and Assurance, Inc., supra).
2. Certiorari will lie against an order granting
execution pending appeal where the same is not founded upon
686 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
good reasons (International School, Inc. [1VI.anila] v. Court of
Appeals, 309 SCRA 474, 482).
3. In Florendo v. Paramount Insurance Corp., 610
SCRA 377, G.R. No. 167976, January 20, 2010, the Supreme
Court held:
"x x'.i 'Gqod reasons,' it has 'been;'held, consist of
compellingcircumstances that justify immediate execution
lest the j4dgment becomes illusory. The circumstances
-
must be superior, outweighing the injury or damages that
might result should the losing party secure a reversal of
the judgment. Lesser reasons would make of execution
pending appeal, instead of an instrument of solicitude
and justice, a tool of oppression and inequity."
4. "Good reason" as required by Sec. 2, Rule 39 of the
Rules of Court does not necessarily mean unassailable and
flawless basis but at the very least, it must be on solid footing.
Dire financial conditions of the plaintiffs supported by mere
self-serving statements as "good reason" for the issuance of
a writ of execution pending appeal does not stand on solid
footing. It does not even stand on its own (National Power
Corporation v. Adiong, A.M. No. RTJ-07-2060, July 27, 2011).
5. Sec. 2 of Rule 39 does not cite examples of the good
reasons that would justify a discretionary execution. What
constitutes a gooci reason therefore, is left to the sound exercise
of judicial discretion. The following, among others, have been
given by jurisprudence as good reasons:
(a) The insolvency of the debtors may justify
discretionary execution as when it is proven that they had
been exhausting for their personal use all the monthly
installments being received by them from the sales of the
different lots of the subdivision in question, they have
not constructed therein the improvements required by
law like the construction of mads, gutters and that they
do not appear to have any other properties or assets to
ansvver not only for the aforementioned obligations but
more particularly the obligations imposed upon them by
the decision (Lao v.1Vlencias, 21 SCRA 1021, 1024).
CHAPTERX 687
EXECUTION AND SATISFACTION OF JUDGMENTS
(b) The purpose of preventing irreparable injury to
the consumers of an electric cooperative which needs the
amount of the judgment for its operations and the repair
of its transmission lines, electric posts, transformers,
accessories, towers, and fixtures within its coverage
area (Fortune Guarantee and Insur,ance Corp. v. Court of
Appeals, 379 SCR,4J, 19-20).
(c) The fact that the goods subject of the judgment
will perish or deteriorate during the pendency of the
appeal, a fact which would render the judgment in favor
of the prevailing party ineffective (Federation of United
NAMARCO Distributors, Inc. v. Court of Appeals, 4
SCRA 867, 888; Intramuros Tennis Club, Inc. v. Court
of Appeals, 341 SCRA 90, 107, citing Yasuda v. Court
of Appeals, 330 SCRA 385; Bell Carpets International
Trading Corporation v. Court of Appeals, 185 SCRA 35).
(d) The failure in an unlawful detainer case to to
make the required periodic deposits to cover the amoun·
of rentals due under the contract or for payment of tf
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 (Sec.
19, Rule 70, Rules of Court).
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
(International School, Inc. [Manila] v. Court of Appeals, 309
SCRA 474, 483). Mere allegation that the appeal is dilatory"is
not a good reason to merit discretionary execution (Intramuros
Tennis Club, Inc. v. Court of Appeals, 341 SCRA 90, 107).
Posting of bond as reason for discrntio11airy eirncl!.!tion (Bair
199'1)
1. The rule is now settled that the mere filing of a bond
not in itself a good reason for ordering
by the successful party iso
- -
688 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
execution pending appeal, because it is the combination of
circumstances which is the dominating reason that would
justify immediate execution, the bond being only an additional
factor (International School, Inc.[Manila] v. Court of Appeals,
309 SCRA 474, 485; Intramuros Tennis Club, _Inc. v. Court of
Appeals, ibid.).
2. ff the· mere posting o{� bo:r:;_d is sufficient to .justify
immediate execution pending appeal, judgments would be
executed immediately, as a matter of course, once rendered,
if all that the prevailing party needed was to post a bond.
Immediate execution will then become the general rule rather
than the exception.
Roxas v. Court of Appeals, 157 SCRA 370, 377-378,
elucidates:
"Good reasons, special, important, pressing
reasons must exist to justify it; otherwise, instead of an
instrument of solicitude and justice, it may well become
a tool of oppression and inequity. But to consider the
mere posting of a bond a "good reason" would precisely
make immediate execution of a judgment pending appeal
routinary, the rule rather than the exception. Judgments
would be executed immediately, as a matter of course,
once rendered, if all that the prevailing party needed to
do was to post a bond to answer for damages that might
result therefrom. This is a situation, to repeat, neither
contemplated nor intended by law."
Another case likewise rules:
"We cannot, however, sanction the execution
pending appeal which was authorized in this case. The
order for advance execution must be struck down for lack
of the requisite good reasons therefor. It is already settled
that the mere filing of a bond does not warrant execution
pending aupeal. To consider the mere filing of a bond a
good reason would precisely make immediate execution of
a judgment pending appeal routinary. the rule rather than
the exception" (Stronghold Insurance Co., Inc. v. Court of
Appeals, 179 SCRA. 117, 127; underscoring supplied).
CHAPTERX 689
· EXECUTION AND SATISFACTION OF JUDGMENTS
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 (Intramuros Tennis Club, Inc. v. Court of Appeals,
supra).
Where to file an application
..
for discretionary'execution
:••.
' ,:.
The motion for discretionary execution shall be filed with
the trial court while (a)'it has jurisdiction over the case and
while (b) it is in possession of either the original record or the
record on appeal. After the trial court has lost jurisdiction,
the motion for execution pending appeal may be filed in the
appellate court (Sec. 2, Rule 39, Rules of Court; Bangkoh
Republic Company Limited v. Lee, G.R. No. 159806, January
20, 2006).
Remedy where the judgment subject to discretionary
:-.
execution is reversed or annulled
Where the executed judgment is reversed totally or
partially, or annulled, on appeal or otherwise, the trial court
may, on motion, issue such orders of restitution or reparation
of damages as equity and justice may warrant under th
circumstances (Sec. 5, Rule 39, Rules of Court). There is
no need of specifying in the judgment that there should be
restitution because restitution is expressly provided for in the
Rules. Said rule should apply in the absence of a disposition
to the contrary in the judgment of the appellate court (See the
related case of Salas v. Quinga, 13 SCRA 143, 145-146).
Execution in case the judgment obligee dies
The death of the judgment obligee will not prevent tht
execution of the judgment. In case the judgment obligee dies,
execution may issue upon the application of his executor,
administrator or successor in interest (Sec. 7[a}, Rule 3.9,
Rules of Court).
690 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
I
Execution in case the Judgment obligor°
dies
The death of the judgment obligor will not, likewise,
prevent execution _ of the judgment. In case the judgment
obligor dies, execution shall still go on because under the Rules,
execution shall issue against his executor or administrator or
successor in interest, if the judgme;nt be for the recovery of
real or petsorial property, or the:enfol-cement of a lien thereon
(Sec. 7[b), Rule 39, Rules of Court). If the death occurs after
execution is actually levied upon any of his property, the same
may be sold for the satisfaction of the judgment obligation. If
there be any surplus after the sale, the officer making the sale
shall account to the corresponding executor or administrator
(Sec. 7[c}, Rule 39, Rules of Court).
How to execute judgments for money; summary
1. In executing a judgment for money, the sheriff shall
follow the following steps:
(a) Demand from the judgment obligor the
immediate payment of the full amount stated in the
judgment including the lawful fees in cash, certified
check payable to the judgment obligee or any other form
of payment acceptable to him (Sec. 9[a], Rule 39, Rules of
Court).
(b) If the judgment obligor cannot pay all or part
of the obligation in cash, certified check or other mode
of payment, the officer shall levy upon the properties of
the judgment obligor. The judgment obligor shall have
the option to choose which property or part thereof may
be- levied upon. If the judgment obligor does not exercise
the option, the officer shall first levy on the personal
properties, if any, and then on the real properties if the
personal properties are insufficient to answer for the
personal judgment but the sheriff shall sell only so much
of the property that is sufficient to satisfy the judgment
and lawful fees (Sec. 9[b], Rule 39, Rules of Court). Bar
2010
CHAPTER X 691
EXECUTION AND SATISFACTION OF JUDGMENTS
(c) The officer may levy on the debts due the
judgment debtor including bank deposits, financial
interests, royalties, commissions and other personal
property not capable of manual delivery in the possession
. or control of third parties. The process of effecting
· · this
form of levy is called garnishment.
2. Based �h th� foregoing rules, the sheriff is required .
first to demand· from the judgment ohligor the immediate ·
· payment of the full amount stated in the writ of execution
before a levy can be made. The sheriff shall demand such
payment either in cash, certified bank check or any other mode
of payment that is 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 among
=
his personal properties can be levied upon. If he does not
exercise this option, he waives such right and the sheriff can
now first levy his personal properties, if any, and then the real
properties if the personal properties are insufficient to satisfy
the judgment (Villarin v. Munasque, 568 SCRA 483, 497).
It is evident from the current rules that the levy by the
sheriff may be done only if the judgment obligor cannot pay all
or part of the obligation in cash, certified bank check or through
other modes acceptable to the prevailing party. If payment
can pe done, a levy is unnecessary. On the other hand, if the
judgment obligor makes a prior admission that he cannot pay
the amount stated in the writ of execution and that he agrees
to the levy of his properties so long as the auction sale would
not be set earlier than a certain set by the judgment obligor,
such admission provides a reasonable basis for the sheriff to
_ forego a priQr demand to pay and to levy on the properties
right away (Villarin v. Munasque, ibid., at 499).
3. The rule that it is not proper for a sheriff to
immediately levy upon the property of the judgment debtor
was affirmed in one case. In Leachon v. Pascua, A.M. No.
P-11-2972, September 28, 2011, it was ruled that the levy
upon the properties of the judgment obligor may be had by
0
the executing sheriff only if the judgment obligor cannot pay
all or part of the full amount stated in the writ of execution. If

692 C.IVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
the judgment obligor cannot pay all or part of the obligation
in cash, certified bank check, or other mode acceptable to the
judgment obligee, the judgment obligor is given the option
to immediately choose which of his property or P?rt thereof,
not otherwise exempt from execution, may be levied upon
. .
sufficient to satisfy the judgment. If the judgment obligor does
not exercise the option immediately, or when he is absent or
cannofbe located, he wa:ives 'such right, and tlie sh�riff can
now first levy his personal properties, if any, and then the
real properties if the personal properties are insufficient to
answer for the judgment. Therefore, the sheriff cannot and
-
should not be the one to determine which property to levy if
the judgment obligor cannot immediately pay because it is
=
the judgment obligor who is given the option to choose which
property or part thereof may be levied upon to satisfy the
=
judgment (Leachon v. Pascua, supra).
iVloney judgments are enforceable only against property of
judgment debtor
"It is a basic principle of law that money judgments are
enforceable only against property unquestionably belonging
to the judgment debtor. In the execution of a money judgment,
the sheriff must first make a demand on the obligor for
payment of the full amount stated in the writ of execution.
-_-
Property belonging to third persons cannot be levied upon.
Moreover, the levy upon the properties of the judgment obligor
may be had by the executing sheriff if the judgment obligor
cannot pay all or part of the full amount stated in the writ
of execution. If the judgment obligor cannot pay all or part
- ↳
of the obligation in cash, certified bank check or other mode
acceptable to the judgment obligee, the judgment obligor is
given the option to immediately choose which of his property
or part thereof, not otherwise exempt from execution, may be
levied upon sufficient to satisfy the judgment. If the judgment
obligor does not exercise the option immediately, or when
€
he is absent or cannot be located, he waives such right, and
the sheriff can now first levy his personal properties, if any,
and then the real properties if the personal properties are
insuf:6.cient to answer for the judgment.
CHAPTER X 693
EXECUTION AND SATISFACTION OF JUDGMENTS
Therefore, the sheriff cannot and should not be the one
to determine which property to levy if the judgment obligor
cannot immediately pay because it is the judgment obligor
who is given the option to choose which property or part
thereof may be levied upon to satisfy the judgment. In a case
where the judgment obligor is not the owner of the subject
vehicle that the.sheriff levied on, it was improper for him to
have enforced the writ of executio�on; property that di4 not·.
belong to the judgment debtor/obligor. Respondent sheriff
evidently failed to perform his duty with utmost diligence"
(Sarmiento v. Mendiola, 638 SCRA, 345, 350, December 15,
2010).
-
Garnishment of debts and credits
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 th .
judgment obligor has sufficient funds to satisfy the judgment.
If sufficient, the garnishee shall deliver the amount in cash
=
or certified check directly to the judgment obligee 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
i amount he holds for the judgment obligor (Sec. 9, Rule 39,
Rules of Court).
Personal property first
Levy of encumbered property
ga-eieaiprg.org
"In determining properties to be levied upon, the Rules
=_
require the sheriff to levy only on those "properties -of th
judgment debtor" which are "not otherwise exempt from
execution." For purposes of the levy, a property is deemed to
belong to the judgment debtor if he holds a beneficial interest
in such property that he can sell or otherwise dispose of for
value. In a contract of mortgage, the debtor retains beneficial
interest over the property notwithstanding the encumbrance,
since the mortgage. only serves to secure the fulfillment of the
..J
694 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
principai obligation. Indeed, even if the debtor defaults, this
fact does not operate to vest in the creditor the ownership
of the property; the creditor must still resort to foreclosure
proceedings. Thus, a mortgaged property may still be levied
upon by the sheriff to satisfy the judgment debtor's obligations
x x.x" (Golden Sun Finance Corporation u. Albano, A.M: No.
P)l-2888, July 27, $,011).
In Golden Sun Finance Corporation, the Court explained
that the encumbrance will not affect the right ofthe judgment
debtor over the property or exempt the property from the levy
if made prior to foreclosure of any mortgage constituted on the
property. Even the pendency of a proceeding for replevin would
not serve to prevent the sheriff from levying on the property
since the fact of default and the right to foreclose had to be
settled in the proceeding (Golden Sun Finance Corporation u.
Albano, supra).
-
Effect of levy and sale of property
It is settled that execution is enforced by the fact of levy
and sale. The result of such execution was that title over
the subject property is vested immediately in the purchaser
subject only to the right to redeem the property within the
period provided for by law. The right acquired by the purchaser
at an execution sale is inchoate and does not become absolute
until after the expiration of the redemption period without
the right of redemption having been exercised. But inchoate
though it be, it is, like any other right; entitled to protection
and must be respected until extinguished by redemption. If
there is a failure to redeem the subject property within the
period allowed by law, the redemptioner is divested of his
rights over the property (Ching v. Family Savings Bank, 634
SCRA 586, 601, November 15, 2010).
Execution of a _judgment for the performance of a specific
act to do
-
obligation
1. If the judgment requires a person to perform a
specific act, said act must be performed but if the party fails
to comply within the specified time, the court may direct the
CHAPTER X 695
EXECUTION AND SATISFACTION OF JUDGMENTS
act to be done by someone at the cost of the disobedient party
and the act when so done shall have the effect as if done by the
party (Sec. 10[a], Rule 39, Rules of Court).
2. If the judgment directs a conveyance of real or
personal property, and said property is in the Philippines, the
court in lieu of directing the conveyance thereof, may by an
order divest the title of any pl;lrty 1u1d vest it in othei's, which
shall h.ave the force and effect of a conveyance executed i:rt due
form of law (Sec. I0[a], Rule 39, Rules of Court).
Execution for a judgment for the delivery or restitution of
real property (Bar 1995)
1. An example of this kind of judgment is one rendered
in an action for ejectment. In such a case, the officer shall
demand from the judgment obligor to vacate peaceably within
three working days, arid restore possession of the property t
the judgment obligee (Sec. 1 0[c], Rule 39, Rules of Court).
The enforcement of the writ of execution in ejectment
cases is carried out by giving the defendant notice of such writ,
and making a demand that defendant comply therewith within
a reasonable period, normally from three to five days, and it is
only after such period that the sheriff is to enforce the writ by
the bodily removal of the defendant and his belongings. Not
that in both the Rules and jurisprudence, the writ of execution
in ejectment cases cannot be enforced on the same date the
sheriff receives the writ. The three-day notice is required. In
one case, there was no notice given. Respondents only learned
of the issuance of the writ of execution at the time it was being
enforced by petitioner (Manuel v. Escalante, G.R. No. 134141,
August 13, 2002). A sheriff who enforces the writ without the
required notice runs afoul of the Rules of Court (Maiialac v.
Bidan, A.1\.1. No. P-18-3875, October 3, 2018).
2. 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 (1Vlendoza
v. Doroni, 481 SCRf-i 41, 52-53; Calaunan v. Madolaria, 642
SCRA 1, 9, February 8, 2011).
--'
 696 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
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" (Calaunan v. Madolaria,
ibid.).
3. After the 1J'pse of the period giveI11\;ahd the judgment
obligor refuses to vacate, then the sheriff :rnay enforce the
writ by ousting the: judgment obligor arid all the persons
claiming a right under him, 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 (Sec.
1 O[c], Rule 39, Rules of Court). This provision authorizes the
bodily removal of the defendant and his belongings (Mendoza
v. Doroni, supra).
-
Contempt is not a remedy
The mere refusal or unwillingness of the judgment
debtor to vacate the property is not a sufficient ground to
hold him in contempt. The writ of possession was not directed
to the judgment debtor but to the sheriff who was directed
to deliver the property to the prevailing party. As the writ
did not command the judgment debtor to do anything, he
cannot be guilty of the acts described in Rule 71 which is
"disobedience of or resistance to a lawful writ, process, order,
judgment or command of any court." The proper procedure
is not for the court to cite the debtor in contempt. What the
officer should do is to dispossess him of the property and if
after the dispossession, the judgment debtor should execute
acts of ownership or possession or in any manner disturb
the possession of the judgment creditor, then and only then
may he be punished for contempt (Pascua v. Heirs of Segimdo
Simeon, 161 SCRA 1, 5; Barrete u. Amila, 230 SCRA 219, 222-
223).
CHAPTER X 697-
EXECUTION AND SATISFACTION OF JUDGMENTS
Removal of improvements on the property subject of
execution
When the property subject of execution contains .
improvements constructed or planted thereon by the judgment
obligor or his agent, the officer shall not demolish, destroy or
remov� them. These acts may: 01J.ly be done by the of:ticer upon
←
a special order by the court w•ilich will be issued up�11=motion
by the judgment obligee and after hearing and only after the
i
judgment obligor fails to remove them within a r�asonable
time fixed by the court (Sec. 1 O[d}, Rule 39, Rules of Court).
-
Property exempt from execution (Bar 1981)
1. There are certain properties exempt from execution
enumerated under Sec. 13 of Rule 39, to wit:
(a) The judgment obligor's family home as provided
by law, or the homestead in which he resides, and th
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, sueh as the judgment obligor may
select, of a value not exceeding one hundred thousand
pesos; Bar 1981 - 10%000
(f) Provisions for individual or family use sufficient
~
for four months;
(g) The professional libraries and equipme.nt of
judges, lawyers, physicians, pharmacists, dentists, engi-•
neers, surveyors, clergymen, teachers, and other profes-
 698 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
sionals, 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; 1001000
-
.. .
-t:�:'/
,.- ! . ·L�i\ : ..� .
(i) \So much of the salaries, wages, or earnings of
:�/!i: ·..
the judglll.ent obligor for his personal services within the
four (4) months preceding the levy as are necessary for
the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accru­
ing or in any manner growing out of any life insurance;
(1) The right to receive legal support, or money
or property obtained as such support, or any pension or
gratuity from the government; and
(m) Properties specially exempted by law (Sec. 13,
Rule 39, Rules of Court).
2. The rule provides that no other property is exempt
from execution, except as otherwise provided by law (Sec. 13,
Rules of Court). The enumeration, therefore, is exclusive.
When the property mentioned is not exempt from execution
If the property mentioned in Sec. 13 of Rule 39 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 (Sec.
13, Rule 39, Rules of Court).
✓
Pro(:eedings when property levied upon is claimecl by third
persons; terceria {Bar 1982; 1984; 1993; 2011) ☒
steadies
1. 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
-
CHAPTER X 699
EXECUTION AND SATISFACTION OF JUDGMENTS
duty of the sheriff is to levy the property of the judgment
debtor and not that of a third person (Power Sector Assets and
Liabilities Management Corporation [PSALM] v. Maunlad
Homes, Inc., G.R. No. 215933, February 8, 2017).
It is a basic rule that execution may issue0 only upon a
p�r:son who is a party ;to, the action. or proce.eding, and not
ag�inst one who did �of have his day in c�{i�t (Philippine
Coconut Federation, Irie. [COCOFEDJ v. Republic, G.R. Nos.
i77857-58, October 5, 2016). Sometimes, it h;ppens that the
sheriff levies upon the property of one who was0 not a party to
the action. What remedy is available to such person?
Under the Rules, a person, not a party to the action,
claiming a property levied upon may execute an affidavit of
his title or right of possession over the property. Such affidavit
must state the grounds of such right or title. The affidavit
shall be served upon the officer making a levy and a copy
thereof must also be served upon the judgment obligee (Sec.
16, Rule 39, Rules of Court). This remedy of the claiming party
is also called "terceria."
The officer served with the affidavit of the claiming third
person shall not be bound to keep the property subject of the
claim, unless the judgment obligee, on demand of the officer,
-
files a bond approved by the court to indemnify the claimant
in a sum · not less than the value· of the property levied
upon. 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 120 days from the date of the filing of
the bond (Sec. 16, Rule 39, Rules of Court). The officer shall
not be liable to any third-party claimant for damages for the
taking or keeping of the property, if such bond is filed (Sec. 16,
Rule 39, Rules of Court; Power Sector Assets and Liabilities
man,
Management Corporation [PSALM] v. Maunlad Homes, Inc.,
G.R. No. 215933, February 8, 2017).
abound
② file 2. Other remedies may also be availed of by the third­
③ fileavhotionor
≤
action
parte party claimant because nothing contained in the Rules "shall
prevent the claiming third person from vindicating his claim
to the property in a separate action x x x" (Sec. 16, Rule 39,

700 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Rules of Court; see Villasi v. Garcia, G.R. No. 190106, January
15, 2014). Bar 1982; 1983; 1984; 1993; 2011
One case holds:
"The second paragraph of Section 16, Rule 39 of the
Rules of Court provides:
·. ·l: .�
... •- x x x Nothing hereiri:;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 separate action against a
third-party claimant who filed a frivolous or plainly
spurious claim.
Clearly, a third-party claimant or any third
person may vindicate his claim to his property
wrongfully levied by filing a proper action which
is distinct and separate from that in which the
judgment is being enforced. Such action would have
for its object the recovery of the possession of the
property seized by the sheriff, as well as damages
resulting from the allegedly wrongful seizure and
detention thereof despite the third-party claim; and
it may be brought against the sheriff, of course, and
such other parties as may be alleged to have colluded
with the sheriff in the supposedly wrongful execution
proceedings, such as the judgment creditor himself.
The same paragraph also provides a remedy
to a judgment obligee when a frivolous and plainly
spurious claim was filed by a third-party claimant,
i.e., to file his claim for damages in the same court
where the third-party claimant filed his third-party
claim or to file a separate action. Thus, petitioners'
claim for damages must be filed in the trial court,
whether in the same case where a third-party claim
has been filed or in a separate action for damages
which petitioners may institute. This is so in order
to require the filing of proper pleadings and to hold
trial so as to give the parties the chance to submit
their respective evidence" (Capa u. Court of Appeals,
502 SCRA 406, 417-418; underscoring supplied).
CHAPTERX 701
EXECUTION AND SATISFACTION OF JUDGMENTS
One case (lmani v. Metropolitan Bank & Trust Company,
635 SCRA 357, 365) similarly teaches:
"x x x A third-party claimant may also resort to an
independent "separate action," the object of which is
the recovery of ownership or possession of the property
se1.zed by the sheriff, as well as damages arising· from
/\ wrongful seizur�-�nd detention of the propl=)rty despite the
If a "separate action" :is the recourse,
i
third-party claiih:
the third-party qlaimant must institute in a forum of
J
competent jurisdiction an action, distinct and separate
from the action in which the judgment is being enforced,
even before or without need of filing a claim in the court
that issued the writ. Both remedies are cumulative and
may be availed of independently of or separately from the
other. Availment of the terceria is not a condition sine
qua non to the institution of a "separate action."
✓
Miscellaneous principles to be remembered in execution
sales
1. A notice of sale is required before the property levied
upon is sold on execution (Sec. 15, Rule 39, Rules of Court).
All sales of property under execution must be made at public
auction to the highest bidder (Sec. 19, Rule 39, Rules of Court)
but the execution sale must be preceded by a valid levy which
is indispensable for a valid execution sale (Tan v. Court of
Appeals, 162 SCRA 237, 244).
A levy is the act whereby the sheriff sets apart or
appropriates a part of the whole of the properties of the
judgment obligor to satisfy the command of the writ (Fiestan
v. Court of Appeals, 185 SCRA 751, 757).
A levy is necessary only if the obligor cannot satisfy
the judgment in cash, certified check or any other mode of
payment acceptable to the judgment creditor (Sec. 9[b}, Rule
39, Rules of Court).
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 1;1-otice of attachment; and (b) leaving with the occupant
702 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
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 (Delta
Motors Corporation v. Court of Appeals; 168 SCRA 206, 212;
Philippir,.,e Surety and Insuri!f
. n�e Co. v. Zabal, 21 S;CRA 682,
685). ,<: . . ..
'.
2.. After sufficient property has been sold to satisfy the
execution, no more shall be sold (Sec. 19, Rule 39, Rules of
Coitrt);
3. Any excess property or proceeds of the sale shall be
delivered to the judgment obligor (Sec. 19, Rule 39, Rules of
Court);
4. If the purchaser at the auction refuses to pay the
amount bid by him, the officer may again sell the property to
the highest bidder and the court may require such purchaser
to pay unto the court the amount of whatever loss, with costs
occasioned by his refusal to pay and if he disobeys the order,
may punish him for contempt. Any subsequent bid by such
purchaser may be refused by the officer conducting the bidding
(Sec. 20, Rule 39, Rules of Court);
5. The judgment obligee may bid and if said party is
the purchaser and there is no third party claim, he need not
pay the amount of the bid if it does not exceed the amount of
his judgment. If it does, he shall only pay the excess (Sec. 21,
Rule 39, Rules of Court);
6. If the purchaser of 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, shall execute 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 (Sec. 23, Rule 39, Rules of Court);
7. When the purchaser of any personal property not
capable of manual delivery pays the price, the officer making
the sale must execute and deliver to the purchaser a certificate
CHAPTERX 703
EXECUTION AND SATISFACTION OF JUDGMENTS
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 (Sec.
24, Rule 39, Rules of Court).
÷:
Sale and redeTption of real property (Bar 2009)
1. UpoJa sale of real propertt:the officer must gi1/e ·.
to the purchaser· a certificate of sale, Such certificate mtiit ·
be registered iri the registry of deeds '. of the place where the
property is situated (Sec. 25, Rule 39, Rules of Court).
2. The real property sold may be redeemed from the
purchaser, at any time within one year from the date of the
registration of the certificate of sale. If there are other creditors
having a lien on the property, the property so redeemed may
again be redeemed within 60 days from the last redemption.
The property may again, and as often as a redemptioner is s
disposed, be redeemed from any previous redemptioner within
60 days after the last redemption (Sec. 28, Rule 39, Rules of
Court).
3. The property may be redeemed by the judgment
obligor, or his successor in interest or by 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. Such redeeming creditor is called a redemptionel'.
(Sec. 27, Rule 39, Rules of Court).
4. Note that the right of redemption under referred to
00
above has reference only to real, not personal property (Sec.
27, Rule 39, Rules of Court).
Effect if no redemption is made
1. If no redemption is made within one 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 60 days have elapsed and no other
redemption has been made, and notice thereof given, the last
redemptioner is entitled to the conveyance and possession of
the property (Sec. 33, ]3.ule 39, Rules of Court).
704 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
2. 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 (Sec. 33, Rule 39,
Rules of Court).
. Under the same provision, the possession of,the property
shill .·be given to the pm,:�hiser or last redemptio#er by the
same officer unless a third party is actually :holding the
property adverse to the ,judgment debtor. Thus; where a
parcel of land levied upon on execution is occupied by a person
other than the judgment debtor, the procedure is for the court
to order a hearing to determine the nature of the possession
of the occupant. If the property is held by the occupant in a
manner adverse to the judgment debtor (like as a co-owner or
a usufructuary), the possession of the property cannot as yet
be given to the purchaser or last redemptioner. If, however,
the possession by the occupant is merely as a successor of or
transferee from the judgment obligor, the purchaser or last
redemptioner is entitled to possession of the property (See
AQA Global Construction, Inc. u. Planters Development Bank,
G.R. No. 211742, August 12, 2015).
Rents, income and earnings of the property pending the
redemption
The purchaser or redemptioner shall not be entitled to
÷
receive the rents, earnings and income of the property sol�
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 (Sec. 32, Rule 39, Rules
of Court).
Remedy when the Judgment is unsatisfied (Bar 1983; 2002;
2008)
l. When the return of the writ of execution shows that
the judgment is unsatisfied, the jvdgment obligee is entitled
CHAPTER X 705
EXECUTION AND SATISFACTION OF JUDGMENTS
to an order from the court which rendered the judgment,
requiring the judgment obligor to appear and be examined
concerning his property and income before the court or a
commissioner appointed by the court. This remedy has a
limitation because the judgment obligor cannot be required
to appear before a court or commissioner outside the province
or city in wliic}i such obligor resides or is found (Sec. 36, Rule
39, Rules a/Court). Thus, if the cotift,is RTC Bulacan andthe
obligor is a 'resident of Quezon City, he cannot be required to
appear and be examined.
2. It is not only the judgment debtor who may be
examined. A person, corporation, or other juridical entity,
indebted to the judgment debtor may, by an order, be required
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 (Sec. 37, Rule 39, Rules of Court).
3. Pursuant to the above rules, in the examination of
a person, corporation, or other juridical entity who has the
property of the judgment obligor or is indebted to him, th
e
court may only authorize the judgment obligee to institute an
action against such person or corporation for the recovery of
such interest or debt. Nothing in the Rules gives the court
the authority to order such person or corporation to pay the
judgment obligee and the court exceeds its jurisdiction if it
orders the person who denies the indebtedness to pay the
same. Execution of a judgment can only be issued against
one who is a party to the action, and not against one, who,
not being a party thereto, did not have his day in court. Due
process demands that a court decision can only bind a party to
the litigation and not against innocent third parties (Esguerra
u. Holcim Philippines, Inc., G.R. No. 182571, September 2,
2013).
-oOo-

Chapter XI
MISCELLANEOUS RULES
;Ai :•
'A. Small Claims Cases
(Basic Features)
A.M. No. 08-8-7-SC (The Revised Rules of Procedure for
Small Claims)
By virtue of A.M. No. 08-8-7-SC, "The Rule of Procedure
for Small Claims Cases" took effect on October 1, 2008. On
October 27, 2009, some amendments were introduced to
the Rule. The amendments took effect on November 3, 2009
following their publication in two newspapers of general
circulation. On February 1, 2016, the "The Revised Rules for
Small Claims Cases" took effect.
On August 7, 2018, further amendments were made to the
Rule. OCA Circular No. 165-2018 announced that an en bane
resolution of the Supreme Court on July 10, 2018 increased the
threshold amount of small claims from two hundred thousai;id
(P200, 000.00) pesos to three hundred thousand (P300, 000 . 00)
pesos.
On March 21, 2019, OCA Circular No. 45-2019 announced
that an en bane resolution of the Supreme Court on February
26, 2019 increased the threshold amount of small claims from
three hundred thousand (P300, 000. 00) pesos to four hundred
thousand (P400, 000. 00) pesos. To reflect the new amount for
small claims cases, Sections 2 and 8 of the 2016 revised rules
were amended. The amendment took effect on April 1, 2019,
:following its publication in two (2) newspapers of general
circulation. The resolution was published in the Philippine
Daily Inquirer and Manila Bulletin on March 15, 2019.
706
CHAPTER XI 707
MISCELLANEOUS RULES
Purpose/objectives
1. The purpose of the rules for small claims is to provide
an inexpensive and expeditious means to settle disputes over
small amounts. The theory behind the small claims system is
that ordinary litigation fails to bring practical justice to the
parties, vv-hen the disputed claim is small, because the time
and expense required by the)?rdinary litigation pro9ef:ls is so
disproporHonate to the amouh . t involved that it disdourages a
just re�olution of the dispute.
'
2. Specifically, the following are the objectives of the
rules of procedure for small claims cases:
(a) To protect and advance the constitutional right
of persons to a speedy disposition of cases;
(b) To provide a simplified and inexpensive proc,�­
dure for the disposition of small claims cases;
(c) To introduce innovations and best practices for
the benefit of the underprivileged (Sec. 3, A.M. No. 0
7-SC).
lnc1pplicabi!ity o'f strict procedural rules
The small claims process is designed to function quickly
and informally. There are no attorneys allowed, unless he is
· the plaintiff or .defendant.. There are no formal pleadip.gs fi led
and the strict legal rules on evidence do not apply. The small
claims court system is not a "typical inferior court." Parties
are encouraged to file small claims court actions to resolve
their minor disputes as opposed to resorting to self-help or
forcible means to seek their remedy (Explanatory note to A.M.
No. 08-8-7-SC, citing Pace v. Hillcrest Motor Co., 161 Cal._
Rptr. 663, 664 Ct. App. 1980).
Jurisdiction
1. Small claims cases are cognizable by the Metropolitan
Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts where the value of the claim does not exceed
P300, 000, exclusive of interests and costs (Sec. 2, A.M. No. 08-
 708 CML PROCEDURE, VOLUME I
· THE BAR LECTURES SERIES
8- 7-SC).' The claim must be purely civil in nature and is solely
for the payment or reimbursement of sum of money (Sec. 5,
A.M. No. 08-8- 7-SC).
2. To be covered by the Revised Rules on Small Claims
Cases, the claim or demand should be for money_owed under
any of the folloyving: (a) contract of lease; (b) contract of loari;
(c) contract of:3se.rvices; (d) contract}o(sale; or (e) contrac.{t · ·.
of mortgage. The claim may also be; for liquidated damages
arising from contract and a claim for the enforcement of
a barangay amicable settlement or an arbitration award
involving a money claim covered by this Rule pursuant to Sec.
417 of R.A. 7160, otherwise known as The Local Government
Code of 1991 (Sec. 5, A.M. No. 08-8-7-SC). Bar 2014
The claim allowed by the rules is one solely for the
payment of money. Hence, a claim for the delivery of a car,
goods, or anything other than for the payment of money falls
outside the ambit of small claims cases. In the same vein, a
suit cannot be brought in a small claims court to compel a
defendant to fix or replace damaged goods.
A claim seeking for a judgment to compel the defendant
to perform specific acts, like the performance of services,
pursuant to a contract, is also not covered by the rules on
small claims since such claim is not solely for the recovery of
m:oney. On the other hand, a claim for monetary compensation
for services rendered is covered by such rules. A claim for
the proceeds of an insurance contract, or the contract price
resulting from a sale can be brought in a small claims court.
The revised rules still allow a claim for damages in an
_ amount not exceeding P300,000 (now P400,000.00) provided
the damages claimed (a) are liquidated, and (b) arise from a
contract. The recovery of unliquidated damages, under the
amended rules, even if arising from a contract, cannot be
brought under the rules on small claims cases. Bar 2018
As currently written, a plaintiff, who claims an amount
not exceeding P400,000 from the defendant, for injuries
sustained due to the la,tter's negligent driving, cannot bring
CHAPTER XI 709
MISCELLANEOUS RULES
suit under the rules on small claims cases. This is because
claims for damages arising from fault or negligence or quasi­
contracts, covered under the original rules, have been deleted
under the revised rules.
Originally, the rules on small claims applied also to
t}J.e civil aspect of criminal actions, either fil�d prior to the
i:n,stitution of the crimi�a
· raction, or reserved;:'.:upbn the filing
of the criminal action 111 i::ourt, pursuant to I{uie 111 of the
Revised Rules of Criminal Procedure. This provision has been
deleted under the revised rules (See Sec. 5, A.M. 08-8-7-SC).
Commencement of the claim; Statement of claims
1. A small claims case is not commenced by a complaint,
as the initiatory pleading is called in the Rules of Court.
Instead, it is commenced by filling up and filing a form called
a Statement of Claim (Form I-SCC) in duplicate. No formal
pleading, other than the Statement of Claims, is necessary
to initiate a small claims action. This form, which should be
verified, is to be accompanied by a Certification Against Forum
Shopping, Splitting a Single Cause of Action, and Multiplicity
of Suits (Form I-A-SCC).
Instead of reserving the evidence for presentation
during the hearing, the plaintiff is required to attach, to the
Statement of Claim, 'the affidavits of his witnesses and other
evidence to support his claim. If his claim is based on an
actionable document, he is also required to attach two duly
certified copies of such document.
2. Submitting every evidence together with the
Statement of Claim is a mandatory requirement. Evidence not
attached shall not be allowed during the hearing. The only way
for the plaintiff to submit additional evidence not previously
attached, is to show to the court that he has good cause for
the submission of additional evidence (Sec. 6, A.M. No. 08-8- 7-
SC). In addition, the non-submission of the required affidavits
will cause the immediate dismissal of the claim (Sec. 9, A.M.
No. 08-8- 7.SC).
 708 CML PROCEDURE, VOLUME I
· THE BAR LECTURES SERIES
8-7-SC).' The claim must be purely civil in nature and is solely
for the payment or reimbursement of sum of money (Sec. 5,
A.M. No. 08-8-7-SC).
2. To be covered by the Revised Rules on Small Claims
Cases, the claim or demand should be for money owed under
any of the folloyving: (a) contract of lease; (b) contract of loan,;
(c) contract o(3se..rvices; (d) contract}ofsale; or (e) contra.sit · ·.
of mortgage. The claim may also be; for liquidated damages
arising from contract and a claim · for the enforcement of
a barangay amicable settlement or an arbitration award
involving a money claim covered by this Rule pursuant to Sec.
417 of RA. 7160, otherwise known as The Local Government
Code of 1991 (Sec. 5, A.M. No. 08-8-7-SC). Bar 2014
The claim allowed by the rules is one solely for the
payment of money. Hence, a claim for the delivery of a car,
goods, or anything other than for the payment of money falls
outside the ambit of small claims cases. In the same vein, a
suit cannot be brought in a small claims court to compel a
defendant to fix or replace damaged goods.
A claim seeking for a judgment to compel the defendant
to perform specific acts, like the performance of services,
pursuant to a contract, is also not covered by the rules on
small claims since such claim is not solely for the recovery of
m:oney. On the other ha:nd, a claim for monetary compensation
for services rendered is covered by such rules. A claim for
the proceeds of an insurance contract, or the contract price
resulting from a sale can be brought in a small claims court.
The revised rules still allow a claim for damages in an
_ amount not exceeding P300,000 (now P400,000.00) provided
the damages claimed (a) are liquidated, and (b) arise from a
contract. The recovery of unliquidated damages, under the
amended rules, even if arising from a contract, cannot be
brought under the rules on small claims cases. Bar 2018
As currently written, a plaintiff, who claims an amount
not exceeding P400,000 from the defendant, for injuries
su.stained due to the la,tter's negligent driving, cannot bring
CHAPTER XI 709
MISCELLANEOUS RULES
suit under the rules on small claims cases. This is because
claims for damages arising from fault or negligence or quasi­
contracts, covered under the original rules, have been deleted
under the revised rules.
Originally, the rules on small claims applied also to
the civil aspect of criminal actions, either fil�d prior to the
in,stitution of the crimirial;action, or reserved;:;trp6n the filing
of the criminal action in court, pursuant to Rule 111 of the
Revised Rules of Criminal Procedure. This provision has been
deleted under the revised rules (See Sec. 5, A.M. 08-8-7-SC).
Commencement of the claim; Statement of claims
1. A small claims case is not commenced by a complaint,
as the initiatory pleading is called in the Rules of Court.
Instead, it is commenced by filling up and filing a form called
a Statement of Claim (Form I-SCC) in duplicate. No formal
pleading, other than the Statement of Claims, is necessary
to initiate a small claims action. This form, which should be
verified, is to be accompanied by a Certification Against Forum
Shopping, Splitting a Single Cause of Action, and Multiplicity
of Suits (Form I-A-SCC).
Instead of reserving the evidence for presentation
during the hearing, the plaintiff is required to attach, to the
Statement of Claim, ·the affidavits of his witnesses and other
evidence to support his claim. If his claim is based on an
actionable document, he is also required to attach two duly
certified copies of such document.
2. Submitting every evidence together with the
Statement of Claim is a mandatory requirement. Evidence not
attached shall not be allowed during the hearing. The only way
for the plaintiff to submit additional evidence not previously
attached, is to show to the court that he has good cause for
the submission of additional evidence (Sec. 6, A.M. No. 08-8-7-
SC). In addition, the non-submission of the required affidavits
will cause the immediate dismissal of the claim (Sec. 9, A.M.
No. 08-8- 7-SC).

710 CNIL PROCEDURE, VOLUME I
THE BAR LECTURESSERIES
3. The affidavits attached to the Statement of Claim
are required to state only facts of direct personal knowledge
of the affiant or facts based on authentic records. Failure to
follow this requirement will make the affidavits inadmissible
and result in their being expunged from the record (Sec. 9,
A.1\t[. No. 08-8- 7-SC). A violation of this requirement �ha,Jl
.
subject thel.party and the person;who assisted the partyjn
the prepariti�n of the affidavits/to. appropriate discipliriary
action (Sec. ,9; A.ikl. No. 08-8-7-SC).
Note: All documents attached to the Statement of Claim
or Response that are required to be certified, shall be certified
by the signature of the plaintiff or · defendant concerned.
Certification by a party is not needed for public or official
documents (Sec. 26, A.M. No. 08-8- 7-SC).
4. The rules do not prohibit joinder of causes of action.
Separate claims arising from distinct causes of action may be
joined in a single statement of claim provided the total amount
does not exceed P400,000 (Sec. 8, A.M. No. 08-8-7-SC).
5. Upon the filing of the claim, the plaintiff shall pay
the docket and other legal fees prescribed under Rule 141 of
the Rules of Court. Exemption from the payment of filing fees
shall be granted only by the Supreme Court (Sec. 10, A.M. No.
08-8- 7-SC):
VenU1e
The Statement of Claim shall be filed in the place
following the rules on venue in Rule 4, of the Rules of Court
(Sec. 7, A.M. No. 08-8-7-SC). This is because the Rules of
Civil Procedure apply suppletorily to small claims cases but
only insofar as they are not inconsistent with AM. No. 08-8-
7-.SC (Sec. 27, A.M. No. 08-8- 7-SC). However, if the plaintiff
is engaged in the business of lending, banking and similar
activities, and has a branch within the municipality or city
where the defendant resides, the Statement of Claim/s shall
be filed where that branch is located (Sec. 7, A.M No. 08-8- 7-
SC).
_CHAPTER XI 711
MISCELLANEOUS RULES
Action of the court; dismissal
l. Upon receiving the Statement of Claim, the court
shall determine first if the claim falls under the rules of small
claims cases. If the court finds that the case falls under a
summary or regular procedure, the case shall not be dismissed.
Instead, the case shp.H be re-docketed under the appropriate
procedure. Now, ift]i� case is filed under a $�rriinary or regular
procedure but is actually a small claims tase, the case shall
be referred to the Executive Judge for apprqpriate assignment
(Sec. 11, A.M. No. 08-8- 7-SC).
This rule presupposes that the case filed is within the
jurisdiction of the MTG. If the case filed is beyond its jurisdiction
because it is the RTC which should take cognizance over the
same, the case has to be dismissed for lack of jurisdiction.
Example: A Statement of Claim for P375,000, based on
an unpaid loan, was filed with the MeTC of Manila as a small
claims case. By reason of the amount, it should not have been
filed as a small claim. The case is governed by the regular
procedure. Should the claim be dismissed? The claim should
not be dismissed but should be re-docketed following the
appropriate procedure because the MeTC has jurisd1ction over
the amount claimed. However, if the claim is in the amount of
P500,000, the same falls outside the jurisdiction of the MTC
and should be dismissed.
After examining whether or not the case falls under a
small claims, the court shall examine the allegations in the
Statement of Claims and the attached evidence. If it finds a
ground for dismissal in the allegations and the evidence, it
shall do so outright on any of the gr:ounds for the dismissal of
the case. No motion to dismiss is required prior to dismissal.
The court, however, is required to state if the dismissal is with
or without prejudice. This prerogative of the court to dismiss
the case, by itself, may be exercised during the hearing even
if the ground is not pleaded in the defendant's Response
(Sec. 11, A.M. No. 08-8- 7-SC),

112 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Summons
1.If the court finds no ground for dismissal, the court
shall now issue the summons (Form 2-SCC). The summons
shall issue on the day the court receives the Statement of
Claim. The summons shall direct the defendant to submit a
verified Response (Form 3-SCG) .. In ordinary procedure, the
ResponsJ).s equivalent to the a,'hswer to the complai�t, The
summons shall be accompanied by the Statement of Claim
and all the documents submitted by the plaintiff. It shall also
be accompanied by a blank Response Form as well as a Notice
of Hearing (Sec. 12, A.M. No. 08-8-7-SC).
Response
1.Upon receiving the summons, may the defendant file a
motion to dismiss? The rule expressly prohibits the filing of a
motion to dismiss or any motion under Section 16 of Revised
Rule on Small Claims Cases. The Notice of Hearing, in fact,
contains an express prohibition against a motion to dismiss
(Sec. 12, A.M. No. 08-8-7-SC; See also Sec. 16[a}, A.M. No.
08-8-7-SC). Even a motion for bill of particulars is prohibited
(Sec. 16[b}, A.M. No. 08-8-7-SC).
2.The defendant shall file with the court and serve on the
plaintiff a duly accomplished verified Response within 10
days from rece1pt of summons. This period is non�extendible.
The Response shall be accompanied by certified photocopies of
documents, as well as affidavits of witnesses and other
evidence in support thereof. No evidence shall be allowed
during the hearing which was not attached to or submitted
together with the Response, unless good cause is. shown for
the admission of additional evidence (Sec. 13, A.M. No. 08-8-
7-SC). The Response may be accompanied by a counterclaim,
compulsory or permissive, as long as such claim is within the
coverage of the Revised Rules on Small Claims Cases. If the
counterclaim does not arise out of the transaction or
occurrence that is the subject matter of the plaintiff claim
(permissive), the prescribed docket and other legal fees should
first be paid (Sec. 15, A.M. No. 08-8-7-SC).
CHAPTER XI 713
MISCELLANEOUS RULES
3. If the Response is not filed and served within the
required period, the plaintiff cannot file a motion to declare
the defendant in default. Such motion is prohibited under Sec.
16(h) of the Rules. Hence, th,e defendant is not to be declared
in default. Instead, the court shall render judgment on the
day set for hearing if the defendant also fails to appear on the
day of the hearing.;If the defendant does n.ot file and serve his
Response, but he appears on the date set f<;>r hearing, the court. :Ji
shall ascertain his defenses and proceed to hear or adjudicate i'
the case on the sa�e day as if a Response has been filed (Sec. · !
14, A.M. No. 08-8-7-SC).
Hearing/postponement
1. The parties are required to personally appear on
the designated date for hearing. Hence, as a rule, appearance
through a representative is not allowed. Appearance through
a representative must only be for a valid cause.
Not anyone can be a representative. He must be related
to or next-of-kin of the party. A lawyer cannot be designated
by an individual-party as a representative. Juridical entities
are not also to be represented by a lawyer in any capacity (Sec.
18, A.M. No. 08-8-7-SC). The basic rule is that nci attorney
shall appear in behalf of or represent a party at the hearing.
The only exception is if the said attorhey is the plaintiff or
defendant (Sec. 19, A:M. No.. 08-8-'7-SC).
The rules require a specific form for the appearance of a
representative. He must be authorized under a Special Power
of Attorney (Form 7-SCC) authorizing him to enter into an
amicable settlement, stipulations and admissions of fact and
of documentary exhibits (Sec._18, A.M. No.-08-8-7-SC).
2. The plaintiff has an obligation to appear on the date
set for hearing. His failure to appear shall be a cause for the
dismissal of the Statement of Claim. The dismissal shall be
without prejudice. If the defendant appears in the absence of
the plaintiff, he shall be entitled to judgment on his permissive
counterclaim, not on his compulsory counterclaim (Sec. 20,
A.M. No. 08-8-7-SC).
 714 CIVIL PROCEDURE, VOLUME I
· THE BAR LECTURES SERIES
The failure of the defendant to appear on tlie date set
for hearing shall have the same effect as the failure to file
a Response under Section 14 of the Rules. This effect shall
not apply where one of two or more defendants who are sued
under a common cause of action and have pleaded a common
defense appears at the hearing (Sec.· 20, A.M. No. 08-8-7-SC).
Fail14!'.'e of both parties to appear shall cause the 9,ismissal of
botJ:i::'.the statement of claim and the counterclafin (Sec. 20,
A.M'. No. 08-8-7-SC). ' 129 allows the Supreme Court to adopt special proced111'11[1 I,
3. At the beginning �-f the court session, the,.judge shall
read aloud a short statement explaining the nature, purpose
and the rule of procedure for small claims cases (Sec. 22, A.M.
No. 08-8- 7-SC).
During the hearing, the judge shall first exert efforts
to bring the parties to an amicable settlement of their
dispute. If the efforts at the settlement fail, the hearing shall
immediately proceed in an informal and expeditious manner
and be terminated within the same day. Any settlement (Form
8-SCC) shall be reduced into writing, signed by the parties
and submitted to the court for approval (Form 9-SCC and
Form 10-SCC) (Sec. 23, A.M. No. 08-8-7-SC).
4. The only ground for postponement allowed is the
physical inability of a party to appear. A party may avail of
only one postponement (Sec. 21, A.M. No. 08-8-7-SC).
Decision/Execution
1. After the hearing, the court shall render its
decision (Form 11-SCC) within 2L1 hours from termination
of the hearing. The decision shall be final, executory and
unappealable. Hence, the decision shall immediately be
entered by the Clerk of Court in the court docket for civil
cases and a copy thereof shall be served on the parties (Sec.
24, A.M. No. 08-8- 7-SC). Despite the relative informality of
the procedure, judgments are based upon a strict application
of the substantive law and an objective judicial analysis of the
facts. The judge is duty-bound to give the legal basis for the
. findings (Expl,anatory note to A.M. N,o. 08-8- 7-SC).
CI;lAPTER XI ii
MISCELLANEOUS RULES
2. When the decision is rendered, execution shall ltlfll Ii
upon motion (Form 12-SCC).
Appeal
The decision of the court shall be final,. executo1·y 111111
unappealableJSec. 24, A.M. No. 08-§-7-SC). The prol1i111Ll1111
against appe�ls assures immediate]:tistice. Section 36 uF , I \, I',
achieve an expeditious and inexpens1ve determination oP on/In/
without regard to technical rules. This authority necQf]{ll11•11
includes disallowance of appeals in special cases.
Reminders
1. There are certain motions and pleadings n()l'11ffd�
allowed in ordinary civil actions which are prohibited i1111 1 n111l
claims cases. The following are not allowed under Sou, U1 nl
A.M. No. 08-8-7-SC:
(a) Motion to dismiss the Statement of CJl Hl 1 ,1
Note: The original rule allowed "lack of jurisdictioll'' 11.u ri
ground for a motion to dismiss. Such ground is no I
allowed under the revised rules;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideratior1 01' 11
judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file plon{l!il/1 11,
affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or pro Ii lb 11,11J11
against any interlocutory order issued by the colll'I,;
(h) Motion to declare the defendant in deffl 11 l L;
(i) Dilatory motions for postponement;
G) Reply aµd rejoinder;
 716 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
· (k) Third-party complaints; and
(1) Interventions.
2. No attorney shall appear in behalf of or represent
a party at the hearing, unless the attorney is the plaintiff
or defendant. If the court determines that a party ·needs
��sistance, the court. Ip;f1Y, allow another iriqi,:vidual, who is
µbt an attorney, to assWt such party with the\'l'atter's consent
(Sec. 19, A.111. No. 08-Bs'(-SC). Bar 2013
-oOo-
B. Basic Features of the Barangay
Conciliation Proceedings
Basic Principles
1. The Revised Katarungang Pambarangay Law under
Secs. 399-422 of R.A. 7160, otherwise known as the Local
Government Code of 1991, effective on January 1, 1992, and
which repealed P.D. 1508, introduced substantial changes not
only in the authority granted to the Lupong Tagapaniayapa,
but also in the procedure to be observed .in the settlement of
disputes within the authority of the Zupan.
2. The primordial aim of the Katarungang Pamba:­
rangay Lavv is to reduce the number of court litigations and
prevent the deterioration of the quality of justice which has
been brought about by the indiscriminate filing of �ases in the
courts (Zamora u. Heirs of Izquierdo, 443 SCRA 24, 31). Bar
1999
3. The barangay justice system was established
primarily as a means of easing up the congestion of cases in
the judicial courts. Originally embodied in P.D. 1508, it is now
incorporated in the Local Government Code of 1991 (Aquino u.
Aure, 546' SCRA 7-l, 79).
,,
CHAPTER XI 717
MISCELLANEOUS RULES
Proceedings before the barangay are not judicial proceed­
ings
1. The proceedings before the Lupong Tagapamayapa,
or the Pangkat ng Tagapagkasundo of the barangay, are not
judicial proceedings. Legally, there is no barangay court. It is
not menti9ned in B.P. 129, as a:q;:i.ended, and other pertinent
laws on ju.'t;isdiction, as one of th��courts created by lawJ,
:-·--- : ·;:,\: e·.i,:,
2. The Zupan and the pangkat do not have inh�rent
adjudicatory powers. They resolve disputes or attempt'to do
so through amicable settlement, conciliation, and arbitration
(See Secs. 410, 412, and 413, Local Government Code of 1991).
Any adjudicatory power exercised by any of these bodies
must be agreed upon by the parties in writing. Such agreement
may involve their willingness to abide by any arbitral award
given by the Zupan or the pangkat (See Secs. 411 and 4L,
Local Government Code of 1991).
Importance of barangay conciliation proceedings (Bar 2012)
1. "Where the case is covered by the Katarungang
Pambarangay Law, the compulsory process of arbitration
required therein is a pre-condition for filing a complaint in
court. Where the complaint (a) did not state that it is one of
the excepted cases, or (b) it did nqt allege prior availment of
said conciliation process, or (c) did not have a certification
that no conciliation or settlement had been reached by the
parties, the case should be dismissed x x x While the foregoing
doctrine is handed down in civil cases, it is submitted that the
same should apply to criminal cases x x x" (Agbayani v. Court
of Appeals, 674 SCRA 358, 362, June 25, 2012).
The pertinent provision of the law reads:
"No complaint, petition, action, or proceeding
involving any matter within the authority of the lupon
shall be filed or instituted directly in court or any other
government office for adjudication, unless there has been
a confrontation between the parties before the lupon
chairman or �he pangkat, and that IlO conciliation or
718 CML PROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
settiement has been reached as certified by the lupor..
secretary or pangkat secretary as attested to by the lupon
or pangkat chairman or unless the settlement has been
repudiated" (Sec. 412, Local Government Code of 1991; see
also Zamora v. Heirs of Izquierdo, 443 SCRA 24, 31-32).
2. Under S�c. lG) of Rule 16 of t�e Rules of Court, a
motion to dismiss;i{:civil complaint may b� filed if a condition
precedent for the fi:iing of the claim has not been complied with.
Failure to undergd the barangay concilldtion proceedings is
non-compliance with a condition precedent.
3. Administrative Circular No. 14-93 of the Supreme
Court (July 15, 1993) provides:
"A case filed in court without compliance with prior
Barangay conciliation, which is a pre-condition for formal
adjudication (Sec. 412 [a] of the Revised Katarungang
Pambarangay Law), may be dismissed upon motion of
defendant/s, not for lack of jurisdiction of the court but for
insufficiency of the cause of action or prematurity (Royales
v. IAC, 127 SCRA 470; Gonzales v. CA, 151 SCRA 289),
or the court may suspend proceedings upon petition of
any party x x x and refer the case motu proprio to the
appropriate Barangay authority applying by analogy
Sec. 408 [g], 2nd par., of the Revised Katarungang
Pamqarangay Law.which reads as follows:
"The court in which non-criminal cases not falling
within the authority of the Lupon under this Code are
filed may, at any time before trial, motu proprio refer the
case to the Lupon concerned for amicable settlement"
(Italics ours).
The above circular was issued prior to the amendments of
the Rules of Court and, so, the ground for dismissal used was
"insufficiency of the cause of action." The proper ground to be
invoked since July 1, 1997, the date when the amendment to
the Rules took effect, should be: "That a condition precedent
for filing the claim has not been complied with" (Sec. l[j], Rule
16, Rules of Court).
CHAPTER XI 719
MISCELLANEOUS RULES
No motu proprio dismissal
The court may not motu proprio dismiss a case on the
ground of failure to comply with the requirement of a barangay
conciliation, the ground not being among those mentioned for
the dismissal of a complaint on the initiative of the court. Sec.
1 ofJ;tule 9 of the Rules of ,pourt provides only th,e following
grou'rids for a motu proprio;_;d,ismissal:
� ...,. ,. . �
J
,!•""!-' .
(a) The court h�s no jurisdiction over'. the subject
matter;
( b) There is another cause of action pending
between the same parties for the same cause;
(c) The action is barred by a prior judgment; and
(d) The action is barred by the statute of limitations
(Aquino u. Aure, 546 SCRA 71, 85).
Rule in relation to cases covered by summary procedure
1. Under the Rules on Summary Procedure, in cases
requiring referral to the lupon for conciliation, a motion t
dismiss may be filed on the ground of failure to undergo th
barangay conciliation proceedings where there is no showing
of compliance with such requirement, although the dismissal,
by the very tez:ior of the rule, is one without prejudice (Secs.
18 and 19[a], 1991 Rules on Summary Procedure;For further
readings, see Uy u. Javellana, 680 SCRA 13, September 5,
2012).
2. Under Sec. 18 of the same Rule, where the case is
dismissed for non-compliance with the conciliation proceed­
ings, the dismissed case may be revived only after such
requirement shall have been complied with.
Non-compliance with conciliation proceedings is noi:
jurisdictional
1. It is well-settled that the non-referral of a case for
barangay conciliation, when so required under the law, is not
jurisdictional in nature and may, therefore, be deemed waived
 ·
720 CML PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
if not raised seasonably in a motion to dismiss. Hence, a party
who does not raise the defect seasonably can no longer raise
the defense of non-compliance with the barangay conciliation
proceedings to seek the dismissal of the complaint (Spouses
Santos v. Spouses Lumbao, 519 SCRA 408, 422-423).
Note, however, that, under the Rµles of Court, "[D]efens�s
and objection£\not pleaded either irfi:a motion to dismiss ;Jr
in the answer'are deemed waived" {Sec. 1, Rule 9, Rules ·of
Court). Also, ifano motion to dismiss has been filed, any of the
grounds for dismissal provided for in Rule 16 may be pleaded
as affirmative defenses in the answer (Sec. 1, Rule 16, Rules
of Court).
2. The conciliation procedure is not a jurisdictional
requirement in the sense that failure to have prior recourse
to it does not deprive a court of its jurisdiction, either over
the subject matter or over the person of the defendant. Non­
compliance with a condition precedent under said law does
not prevent a court of competent jurisdiction from exercising
its power of adjudication over a case where defendants fail
to object to such exercise of jurisdiction. But such objection
should be seasonably made before the court first taking
cognizance of the complaint (Junson v. Martinez, 405 SCRA
390, 395).
Subject matters for settlement (Bar 2009)
1. Section 408 of the Local Government Code of
1991 establishes the general rule that "The Lupon of each
barangay shall have authority to bring together the parties
actually residing in the same city or municipality for amicable
.settlement of all disputes x x x" (For further readings, see_
Torbela v. Rosarion, 661 SCRA 633, December 7, 2011).
2. Administrative Circular No. 14-93 of the Supreme
Court dated July 15, 1993, the provisions of which are
primarily based on Sec. 408 of the Local Government Code of
1991. The circular, in substance, provides:
All disputes are subject to Barangay conciliation pursuant
to the Revised Katarµngang Pambarangay, Law and prior
CHAPTER XI 01
MISCELLANEOUS RULES
recourse thereto is a pre-condition before filing l.l
in court or any government offices except in the
disputes:
[1] Where one party is the government, /11ljl IJ! i Ji 1
o,11
division or instrumentality thereof;
[2] Where one party is a public of:fi,9er OI' 011uJl 1jr•J• 1
I
and the dispute r�lates to the performafr'ce ul' l I ln td'l111l,111 I
,.
functions;
[3] Where the dispute involves ··re11I l'''n111 1 1 I ti..t
located in different cities or municipalitieo, l i1ilq1tt1 11,,
parties thereto agree to submit their dH'l'1 11',J111 ,1
amicable settlement by an appropriate Lupn1
[4] Any complaint by or against
partnerships or juridical entities, since onl
shall be parties to barangay conciliatiOll
either as complainants or respondents (8
Katarungang Pambarangay Rules);
[5] Disputes involving parties who ao{, l illll
in barangays of different cities or municipn I l I lm11 LlXl 1 i}jl
where such barangay units adjoin each ol,lill•' 1111d
parties thereto agree to submit their rH l'l'w•111
amicable settlement by an appropriate Lu1Jo11j
[6] Offenses for which the law ,11•rn1t11•l11,
maximum penalty of imprisonment excmidl,114 11,11
year or a fine of over five thousand pesos (PfJ,IJ{ )(), ()());
[7] Offenses where there is no prlvn(,
party;
[8] Disputes where urgent legal acti01l. itl 111
to prevent injustice from being commitl,ucl 01•
continued, specifically the following:
[a] Criminal cases where the acow 11,1il,11 1
police custody or detention (See
Revised Katarungang Pambarangay
[b] Petitions for habeas corpu li'li'I\UH
illegally deprived of his rightful custo k1\
722 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
or a person illegally deprived of or on acting in his
behalf;
[c] Actions coupled with provisional remedies
such as preliminary injunction, attachment,
delivery of .personal property and support during the
p�ndency of the action; i:µid ..,
�
[d] Actions which � �
may be barred by the Statute
of Limitations.
[9] Any class of disputes which the President
may determine in the interest of justice or upon the
recomme.ndation of the Secretary of Justice;
[10] Where the dispute arises from the Comprehen­
sive Agrarian Reform Law (CARL) (Secs. 46 and 47, R.A.
6657);
[11] Labor disputes or controversies arising from
employer-employee relations (Montoya v. Escayo, et al.,
171 SCRA 442). Art. 226, Labor Code, as amended, grants
original and exclusive jurisdiction over conciliation and
mediation of disputes, grievances or problems to certain
offices of the Department of Labor and Employment;
[12] Actions to annul judgment upon a compromise
which may be filed directly in court (See Sanchez v.
Tupaz, 158 SCRA 459; Underscoring supplied; see· also
Sec. 408 of the Local Government Code of 1991)."
3. Sec. 412[b] of the Local Government Code of 1991
also enumerates the instances where the parties may go
directly to court without the need for undergoing the barangay
conciliation proceedings, namely:
[a] Where the accused is under detention;
[b] Where a person has otherwise been deprived of
personal liberty calling for habeas corpus proceedings;
[c] Where actions are coupled with provisional
remedies such as preliminary injunction, attachment,
delivery of personal property, and support pendente lite;
and
CHAPTER XI 723
MISCELLANEOUS RULES
[d] Where the action may otherwise be barred by
the statute of limitations.
Note: The above instances have also been reiterated in
Administrative Circular No. 14-93 of the Supreme Court,
date4 July 15, 1993.
4. In an e�ly case, the petitioner :argued that he is a
resident of the U*.ited States and since}he, not his attorney••.
in-fact, is the real party-in-interest, tlie lupon would have
no jurisdiction to./pass upon the dispute involving the real
property. In dismissing the complaint for non-compliance
with the barangay conciliation requirement, the trial court
ruled that since the attorney-in-fact of the petitioner and the
respondent reside in the same place, the controversy is subject
to barangay conciliation, the attorney-in-fact being deemed to
be the real party in interest.
The Court, however, did not agree with the trial court. It
ruled that the requirement of actual residence pertains to th
real party in interest and does not apply to the attorney-in-fact
as plaintiff. In sustaining the petitioner, the Court instructed:
"In fine, since the plaintiff-herein petitioner, the real
party in interest, is not an actual resident of the barangay
where the defendant-herein respondent resides, the local
lupon has no jurisdiction over the dispute, hence, prior
referral to it for conciliation is not a pre-condition to its
filing in court" (Pascual v. Pascual, 475 SCRA 271, 275;
See also Abagatnan v. Spouses Clarita, G.R. No. 211966,
August 7, 2017).
5. The fact that the petitioner and private respondent
reside in the same municipality does not justify compulsory
conciliation where the other co-defendants reside in barangays
of different cities and municipalities (Candido v. Macapagal,
221 SCRA 328, 332). Thus, where one party resides in Roxas
City, the other in Laguna and another in Pasig City, the lupon
has no jurisdiction over their dispute, and prior referral of th
case for barangay conciliation is not a precondition to its filing·
in court (Abagatnan u. Spouses Clarita, C.R. No. 211966
August 7, 2017). Bar 2018
724 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES.
6. In sum, parties who do not actually reside in the
same city or municipality or adjoining barangays are not
required to submit their dispute to the lupon as a precondition
to the filing of a complaint in court (Abagatnan v. Spouses
Clarita, G.R. No. 211966, August 7, 2017). Bar 2018
Venue b
}: .
;l .;l
Sec. 409 of R.A. 7160 provides for the following rules on
venue:.
"(a) Disputes between persons actually residing
in the same barangay shall be brought for amicable
settlement before the lupon of said barangay.
(b) Those involving actual residents of different
barangays within the same city or municipality shall be
brought in the barangay where the respondent or any of
the respondents actually resides, at the election of the
complainant. Bar 2018
(c) All disputes involving real property or any
interest therein shall be brought in the barangay where
the real property or the larger portion thereof is situated.
(d) Those arising at the workplace where the
contending parties are employed or at the institution
yrhere such parties are enrolled for study, shall be brought
in the barangay where such workplace or institution is
located.
Objections to venue shall be raised in the mediation
proceedings before the punong barangay; otherwise,
the same shall be deemed waived. Any legal question
which may confront the punong barangay in resolving
objections to venue herein referred to may be submitted
to the Secretary of Justice, or his duly designated
representative, whose ruling thereon shall be binding."
Initiation of proceedings
1. Upon payment of the appropriate filing fee, any indi­
vidual, who has a cause of action agaip.st another individual,
:�· :-
CHAPTER XI 725
MISCELLANEOUS RULES
involving any matter within the authority of the Lupon may
complain, orally or in writing, to the chairman of the lupon
(Sec. 410[a], R.A. 7160). The chairman of the lupon is the Pu­
nong Barangay (Sec. 399, R.A. 7160). The fact that the com­
plaint was addressed to the barangay captain is of no moment
hecause he is the chairman of the Lupong Tagapamayapa
(Magno u. Veicf;sco-Jacoba, 475 SCRA;584).
�· .-�
•;
1 !
2. Upoii receipt of the compi�int, the chairman shill
summon the ·respondents within the next working day : to
appear. If the chairman fails in his mediation efforts within
15 days from the first meeting, he shall set a date, to constitute
the Pangkat ng Tagapagkasundo (Sec. 410[b], R.A. 7160).
Personal appearance of parties
The parties must appear in person in all katarungang
pambarangay proceedings and without the assistance of
counsel or representatives, except for minors and incompetents
who may be assisted by their next-of-kin who are not lawyers
(Sec. 415, R.A. 7160; Magno u. Velasco-Jacoba, 475 SCRA 584,
589). Bar 1999
Parties to the proceedings
Only individuals shall be parties to the proceedings
either as complainants and respondents. Hence, rio complaint
by or against corporations, partnerships or other juridical
entities shall be filed, received or acted upon (Sec. 1, Rule VI;
Katarungang Pambarangay Rules; Administrative Circular
14-93, July 15, 1993).
Form of settlement
All amicable settlements shall be in writing, in a language
or dialect known to the parties, signed by them, and attested
to by the lupon chairman or the pangkat chairman, as the
case may be. When the parties to the dispute do not use the
same language or dialect, the settlement shall be written in
.
.. the language or dialect known to them (Sec. 411, R.A. 7160).
:-. :·
 726 CIVIL PROCEDURE, VOLUME I
THE BAR LECTURES SERIES
Effect of amicable settlement and award; repudiation
1. The amicable settlement and arbitration award
shall have the effect of a final judgment of a court upon the
expiration of 10 days from the date thereof, unless repudiation
of the settlement has been made_ or a petition to nullify the
award has been filed befqre the proper city or municipal court
1 ec. 416, R. A. 71601'. ·,t:;j.::
s·;
\';,_
1 <!';
l
.-.-::;
• ,:-_,
,:•r;", •
Jurisprudence confirms that, "x x x [An] amicable settle­
ment reached after barangay conciliation proceedings has the
force and effect of a final judgment of a court if not repudiated
or a petition to nullify the sarrie is filed before the proper city
or municipal court within ten (10) days from its date" (Chavez
v. Court of Appeals, 453 SCRA 843, 849; See also Vidal v.
Escueta, 417 SCRA 617, 627).
2. The above provision shall not apply to court cases
settled by the lupon under the last paragraph of Sec. 408 of
this Code; in which case, the compromise settlement agreed
upon by the parties before the lupon chairman or the pangkat
chairman shall be submitted to the court and, upon approval
thereof, have the force and effect of a judgment of said court
(Sec. 416, Local Government Code of 1991).
The relevant provision of the last paragraph of Sec. 408
provides:
"The court in which non-criminal cases not falling
within the authority of the lupon under this Code are filed
may, at any time before trial, motu proprio refer the case
to the lupon concerned for amicable settlement."
3. The Court appears not to favor referral of cases
falling under summary procedure to the lupon for amicable
settlement because Secs. 7 and 8 of the Rule on Summary
Procedure mandate a preliminary conference which is
precisely for the purpose of giving room for a possible amicable
settlement. In a case involving an unlawful detainer case, the
Court explained:
"x x x [\iV]hile the last paragraph of the aforecited
provision apparently gives the court the discretion to refer
CHAPTER XI 727
MISCELLANEOUS RULES
the case to the lupon for amicable settlement although
it may not fall within the authority of the lupon, the
referral of said subject civil case to the lupon is saliently
. an unsound exercise of discretion, considering that the
matter falls under the Rule[s] on Summary Procedure.
The reason is that the Rule[s] on Summary Procedure was
prom1.1lgated for the purpose o(achieving "an expeditious
and itj;'expensive determinatioj{i of cases." The fact th�t;
unlawful detainer cases fall u'rider summary procedui�. ;
speedy resolution thereof is thus deemed a matter of
public policy. To do otherwise' would ultimately defeat
the very essence of the creation of the Rules on Summary
Procedure" (Diaz v. Gestopa, Jr., 652 SCRA 434, 439,
June 22, 2011).
Repudiation of the settlement
1. Any party to the dispute may, within 10 days from
the date of the settlement, repudiate the same by filing with
the lupon chairman a statement to that effect, sworn t
before him, where the consent is vitiated by fraud, violenc
or intimidation. Such repudiation shall be a sufficient basis
for the issuance of the certification for filing a complaint (Sec.
418, R.A. 7160; For further readings, see Vidal v. Escueta, 41
SCRA 617, 627). Failure to repudiate the settlement within
the 10-day period shall be deemed a waiver of the right to
challenge the settlement on said grounds (Sec. 14, Rule VI,
Katarungang Pambarangay Rules).
2. "Generally, the rule is that where no repudiation
was made during the 10-day period, the amicable settlement
attains the status of finality and it becomes the ministerial
duty of the court to implement and enforce it. However, such
rule is not inflexible for it admits of certain exceptions x x x"
(Quiros v. Arjona, 425 SCRA 57, 63).
In Quiros, the parties entered into two agreements for
the conveyance of a parcel of land, but on ocular inspection,
the Municipal Trial Court found that the land inspected was
different from the land intended to be conveyed because of the
disparity in the description of the property in the agreements.
While the Court conceded the validity of the written
I/

728 CML PROCEDURE,VOLUMEI
THE BAR LECTURES SERIES
agreements, subject, however, to its reformation, the Court
concluded that no writ of execution could be issued for failure
to determine the land intended to be delivered.
Execution of award or settlement (Bar 2012)
1. The amicable settlement or arbitration award may
be enforced by exec�tion by the lupon wit11ip. six months from
the date of the settlement. After the lapse of such time, the
settlement may be inforced by action in the appropriate city
or municipal court (Sec. 417, R.A. 7160; Chavez v. Court of
Appeals, supra; Miguel v. Montanez, 664 SCRA 345, 350-351,
January 25, 2012).
2. The timeline of six months, according to the Court,
is for the benefit, not only of the complainant, but also of the
respondent. The plain words of the law mandate that the
period of six months should be computed from the date of
settlement. This period, however, declared the Court, cannot
be strictly applied in certain cases.
The Court explained:
"x x x [I]f applied to a particular case because of its
peculiar circumstance, the computation of the time line
from the date of the settlement may be arbitrary and
unjust and contrary to the intent of the law. To illustrate:
'Under an amicable settlement made by the parties b·efore
the Lupon dated January 15, 2003, the respondents
were obliged to vacate the subject property on or before
September 15, 2003. If the time line of six months under
Section 417 were to be strictly applied and literally
followed, the complainant may enforce the settlement
only up to July 15, 2003. But under the settlement, the
respondent was not obliged to vacate the property on or
before July 15, 2003; hence, the settlement cannot as yet
be enforced. The settlement could be enforced only after
September 15, 2003, when the respondent was obliged
to vacate the property. By then, the six months under
Section 417 shall have already elapsed. The complainant
can no longer enforce the settlement through the Lupon,
b?t had to enforce the s�me through an action in the
CHAPTER XI 729
MISCELLANEOUS RULES
MTC, in derogation of the objective of Section 417 of the
LGC. The law should be construed and applied in such a
way as to reflect the will of the legislature xxx" (Vidal u.
Escueta, 417 SCRA 617, 630-631).
3. The enforcement by execution of the amicable
settlement provided for under Sec. 41 7 of the Local Government
CodeJ'3ither under the firsflremedy (within six m,ci,.nths from
sett1Jfnent), or the second:-C"'femedy (after six mpnths from
settlement), is only applicab,le if the contracting parties have
not repudiated such settlement within 10 days froin the date
J
thereof in accordance with Sec. 416 of the Local Government
Code. If the amicable settlement is repudiated by one party,
either expressly or impliedly, the other party has two options,
namely, to enforce the compromise in accordance with the f
Local Government Code or the Rules of Court as the case may
be, or to consider it rescinded and insist upon his original
demand. This in accord with Art. 2041 of the Civil Code, viz.:
"If one of the parties fails or refuses to abide by
the compromise, the other party may either enforce the
compromise or regard it as rescinded and insist upon the
original demand " (Miguel u. Montanez, 664 SCRA 345,·
352-3 53, Janu ary 25, 2012 ).
The Court further declared, in Miguel v. Montanez,
that the language of Art. 2041 of the Civil Code denotes
that no action for rescission is required, and that the party
aggrieved by the breach of the compromise agreement, may,
if he chooses, bring the suit contemplated or involved in his
original demand, as if there had never been any compromise
agreement (Miguel v. Montanez, Supra at 352).
-o0o-
1