CIVPRO-Feble Compressed

[CIVIL PROCEDURE] Transcribed Notes of Dean Feble’s Lectures
Altarejos, Agustin, Baluyot, Mataga, Mendoza, Ramacola, Tan
January 24, 2020  Rules for ordinary civil actions is

applicable unless otherwise provided for
by special Rules
RULE 1 – GENERAL PROVISIONS
Criminal
The Rules govern civil actions.
 Prosecution of criminals;
Civil actions (Rule 1. Sec. 3a)
 Note in accordance to Dean Feble:
1. Ordinary
o Rule 110 is applicable, but
2. Special erroneously entitled as
“Prosecution of Offenses”
There must be classification of actions wherein
specific Rules shall apply. o Offenses refer to actions which
are defined and penalized under
The Rules in Ordinary CA shall apply to Special
the RPC, while all others are
CA unless a specific Rule is otherwise applicable
governed by special penal laws
to the latter;
o The law cannot be prosecuted,
for it is the person violating the
Sec. 3.Classifications and Definitions of Actions law who shall be prosecuted
Civil Actions
1. Ordinary Civil Action Special Proceedings
 One which a party sues another for the  A remedy by which a party seeks to
establish a status, right, or a particular
o Enforcement or protection of a
fact
right (Preventive action); or
 Rules for ordinary civil actions is
o Prevention or redress of a wrong
applicable supplementary in the absence
(Remedial action)
of special provisions
 Not always that there must be a breach
because it may be prevented by filing a
complaint in court; preemptive act before RULE 2 - CAUSE OF ACTION
the breach
2. Special Civil Action

Sec. 2. A cause of action is the act or omission
 There is no definition by which a party violates a right of another.
 Subject to specific Rules provided for a  Connotes that a breach has already been
Special Civil Action (Rule 62-71) committed
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 Rule 2. Sec. 2 contradicts the definition Once court gains jurisdiction, it shall continue to
of Ordinary Civil Action do so until judgement of the court has attained
finality or an appeal has been perfect.
 Lack of Cause of Action is not a ground
for dismissal (Rule 16. Sec. 1.Grounds) When appeal has been perfected, the court which
but a ground for a demurrer to evidence promulgated the decision loses jurisdiction over
(Rule 33. Sec. 1.Demurrer to evidence) the controversy but may still exercise residual
judicial powers.
 Demurrer to evidence is equivalent to a
motion to dismiss; When demurrer is When the court has no jurisdiction over the case,
denied, the person must go to the same its judgement is rendered invalid and void. A
court where he filed the demurrer void judgment cannot ripen into a valid
because denial of the motion for leave of judgement, and cannot attain finality. It cannot
court to file the demurrer or the be a subject of a direct and collateral attack.
demurrer itself cannot be appealed or
GR: The issue of jurisdiction may be challenged
reviewed by certiorari (Rule 119. Sec. 23.
at any stage of the proceedings.
Demurrer to evidence) Note: GMA vs.
Sandiganbayan, 2017 XPN: Estoppel by laches
 Failure to state a Cause of Action is a Estoppel in laches applies at the stage where the
ground for dismissal (Rule 16. Sec. 1. judgement is in execution. It is a conclusive
Grounds) presumption and cannot be rebutted.
Provisional Remedies (Rule 57-61; 127) Requisites of valid jurisdiction:
 Auxiliary and dependent upon the 1. Jurisdiction over persons of parties

existence of a principal action
2. Jurisdiction over subject matter
 In criminal procedure, most prominent is
Rule 57 (Preliminary Attachment), but all
provisional remedies may still be availed Courts
if so applicable
Classification of Courts:
 Note: Filing and Service are distinct
1. Constitutional Courts
 In criminal procedure, accused is not
2. Statutory Courts
required to file an answer to the
information against him Note: What are the distinctions between a
certiorari as a mode of review from a certiorari
Jurisdiction
as a special civil action?
It is the power and authority of the court to try,
There are 2 certioraris as a mode of review:
decide, and enforce it judgement.
1. Rule 45
2. Rule 64
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February 6, 2020 Now if we are talking about jurisdiction in

reference particularly to Summons Rule 14, the
classification of action to easily determine the
General Principles jurisdiction is whether the action is an action in
rem, action in person and actions quasi in rem.
Foremost, among the topics in this general
principles is jurisdiction, I advice the class to In all instances it boils down in determining
memorize the the different jurisdiction both, the power of the court and the place where
conferred by the Constitution and by law to the the action should be properly commenced,
Courts, starting from the Supreme Court down where will you file it, in Manila or in Baguio?
to the Sharia Court because as we move on every
So, determine first whether the action is a real
subject matter that we might tackle may involve
action or a personal action, then go down to the
an issue on jurisdiction, specially jurisdiction
jurisdiction whether the action is quasi in rem,
over the subject matter, but likewise jurisdiction
action in personam or action quasi in rem.
over the parties or the Res or the property in the
issue and some other intricate matters whether Almost, all the time when you talk about action
or not the court may acquire jurisdiction over the in personam it purports to the venue and this will
cause of action or the parties. always be an action personal in character for the
purposes of venue because what the Rule
Specifically, Rule 14 pertaining to summons is a
provides for, there are only two actions, whether
Rule that is exclusive to defending parties and of
it is real or personal action.
course the Res, which is the property.
But when we go now to Rule 2 which is the
Example if you are talking about an action Quasi
CAUSES OF ACTION, definitely we need to know,
in Rem, you have to understand what are these
what are these common kind of action. Basically
different kinds of action in terms of the venue.
we will be dealing with actions which either be
We have to know the meaning of venue in so far
an ordinary civil action or a special civil action.
as the action are concerned and determine,
whether it is proper venue. And if you look at Section 3 Rule 1, there you will
see the distinction and the complete definition
So if you are talking of venue, there are two
of what an ordinary civil action is and of course
classification of action that you have to
the lack of definition if what is a special civil
immediately discern, (1) real action (2) Personal
action and belonging to that, what is a criminal
action.
action and what is a special proceedings.
Now if you are talking about jurisdiction over the
The Rule provides that when you are dealing with
RES, take note that this involve a property and
a special civil action, the Rules on ordinary civil
when it involves property again it would depend
action will also apply, UNLESS, a specific Rules
whether the action is a real action if it involves a
for a particular special civil action tells you that
real property and it maybe a personal action
it shall be used for such purpose.
because the property involved or the res as we
call it is a personal property.
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Definition of Remedial law as against to But worst among these is Rule 71!! The last of
Substantive Law course that we will study is CONTEMPT.
Remedial law is that branch of law that provides Contempt may be a criminal contempt or a civil
the procedure by which an action is prosecuted contempt and of course if you look at Rule 71, it
or defended in the courts of law. says direct and indirect because of the nature of
the penalty that may be imposed by the court
(Segway to Evidence, Sec.1 Rule 128: Evidence
therefore contempt can be classified as either
defined-Evidence is the means sanctioned by
criminal or civil.
these Rules, of asserting in a judicial proceeding
the truth respecting a matter of fact; it is a In an order of contempt, it requires an exact
means, it is a tool that you can utilize in any what is to be performed for but if the court holds
action to prove a fact.—— Mali daw yung you in contempt sends you to prison, that is
definition na ito. Mali din daw yung title Rule 110 criminal.
: Prosecution of Offenses)
Imagine…. There is no question regarding the
Prescription is a substantive law because it powers of the Supreme Court as what is provided
grants or removes, withdraw or deny a right, that in Sec.5 Article 7 of the Constitution, which
is why there are two kinds of prescription, provides the Rule making power of the Supreme
acquisitive and extinctive, that is suppose to be Court (then napunta sa LEB, PhilSAT, etc.)
exclusive to the drawing of the substantive law.
Writ of Kalikasan is not a special proceeding. The
But are there prescription in the Rules of Court? Rules in the environmental cases is classified as
YES. One of them is Rule 91- Escheat- a special action.
prescription of 5 years.
Under Rule 70, there are two special civil actions
A property escheated under Rule 91 gives only 5 under it. Commonly known as ejectment cases,
years for any person to bring an action or file his it refers to forcible entry and unlawful detainer.
claim over the escheated property otherwise
When we reach Rule 70 necessary we will tackle
such claim is barred. Section 5Rule 86- statute
summary proceedings, because these are the
of non-claims, which is a special proceeding for
only actions governed by it.
the settlement of an estate.
Essentially, what we will need to understand are
Under this Rule one has to file all his claim within
those provisions under these revised Rules on
the period provided for in the statute of non-
summary procedures which either not restated
claim which is should not be less than 6 months
in Rule 70 to supply what is not found in the
but not more than 12 months, otherwise it will
Rules 70 and this is the only special civil actions
be barred or as we study special civil actions
where the jurisdiction is exclusive to the MTC.
later on, and this has been one of the subject
raised as a defense in the case of Chief Justice Where as to other civil action which could either
Maria Lourdes Serreno, quo warrants which has be in the MTC or RTC for the purpose of
prescription of 1 year. jurisdiction.
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Or exclusive with the RTC, for example if you are But do I have to wait for my right to be infringed
talking about expropriation, quo warranty, before I can file a case?
foreclosure of realty state, so Rule 67 and Rule
If we follow the definition given, then there
68 those are exclusive.
seems to be no possibility, where it is not yet an
invasion or a violation of our right, we cannot file
an action because we still don’t have the right of
Nature of Remedial Law vis-a-vis Substantive
action, if we are going to follow such premise
Law
that an action must be predicated in an existing
Substantive law is a law that creates a right, it is cause of action.
the basis of a cause of action, it is a basis in
So how can you pray for relief, how can you
which an action could be filed or commenced in
recover damages? Since you have no right of
court, whatever action this is, whether it is a
action necessarily you have no right for relief
criminal, civil action or a special proceeding, so
and your complaint will be dismissed by way of
it is that substantive law that will give you the
DEMURRER, Rule 33.
idea that you can go to court because there is
this law that grants you certain rights. Lack of the cause of action is a ground for the
dismissal of the complaint but this can only be
And that is the reason why if we go through the
done through demurrer.
definition of a cause of action, which is an act or
omission by which a party violates the rights of What is DEMURRER? Demurrer is simply a motion
another, therefore the essential ingredient of a to dismiss that complaint in which you can file
cause of action is a violation of a right. according to Section 1 Rule 33 , after the plaintiff
have rested his case. In contrast if you are
Now if that right is violated, you now have the
talking about FAILURE TO STATE A CUASE of
right to go to court and file a case against him.
Action.
Take note, the Rules of course said that every
The complaint can be dismissed outright. This
action must be predicated with a cause of action.
means that your complaint does not have
Right of Action vs Cause of Action sufficient allegations for a sufficient cause of
action or, you failed to implied an indispensable
If you say that in every case and every suit that
party who is a real party in interest, hence your
you will file must have a cause of action. That
complaint may be subject to a motion to dismiss.
means if there is no cause of action, no suit and
one cannot file a case and in order to have a Under Section 1 Rule 16 included in the
cause of action there must be breach and enumeration for the dismissal is failure to state
violation. the cause of action.
So you wait that your right is invaded and once So when you filed a complaint and the defendant
invaded, there may be violation, and when that knew, even though he is not yet subjected to its
right is violated there arises the cause of action jurisdiction yet, he can VERILY FILE a MOTION to
then you if you have that cause of action you will DISMISS. But he can also FILE AN ANSWER and he
have the right now to file a case. can invoke that as an AFFIRMATIVE DEFENSE and
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ask the court for preliminary hearing of this 4. Statute of limitations (sa Rules ng
defense. summary procedure dalawa compared sa
regular procedure apat).
Now in the amendments if your ground is lack or
failure to state a cause of action that is a Before the amendment if you do not file the
prohibited motion (parang summary procedure motion to dismiss, you can invoke all of these
may prohibited motion na ngayon). grounds for the dismissal of the complaint in
your answer.
In Rule 17 copied the provisions of revised
summary procedure pertaining to prohibited If yaw nyo ng motion to dismiss and gusto nyo
pleadings and motions. kumita, magfile ka ng motion to dismiss kahit na
improper venue, kapag na dismiss na at
Section 13 of Rule 17 is the same as Section 19
nabayaran ka na ng cliente mo, hindi nya alam
in the Rule on revised summary procedure.
na pwede palang i-refile.
However there is two exceptions. These are if the
If the case was dismissed and the dismissal was
motion to dismiss is grounded on lack of
without prejudice, you can refile, such as for
jurisdiction over the subject matter and failure
non-compliance for condition precedent and
to comply with the procedure precedent and that
improper venue, as I have said these are
is the last ground of the dismissal of the
dismissal without prejudice, however you cannot
complaint under Sec.1 Rule 16 (kung ito yung
appeal that dismissal contrary to old concept
ground mo for dismissal of the complaint, hindi
wherein every final order is subject to an appeal.
na prohibited motion yan).
When a complaint is dismissed the order
Stated in the amendments there is only four
dismissing the complaint is a final order and
grounds in which a motion to dismiss can be
since it is a final order as compared to an
filed.
interlocutory order, that is appealable under the
All others are prohibited (talaga bang old concepts of appeal.
prohibited? Not totally because the Rule says,
But because of Section 1 of Rule 41 tells us the
because you can still invoke that as an
last item in the enumerated subject matter which
affirmative defense, in your answer).
appeal is not permitted.
These four grounds are the same with what was
However the last enumerated subject matter, is
stated in Section 1 of Rule 9 not covered by the
a final order, an order dismissing an action
Omnibus Motion Rule, provided unless under
without prejudice, so what does it mean of the
Section 1 of Rule 15.
phrase “without prejudice” it simply means that
The following are the 4 grounds are: you can refile it.
1. Lack of Jurisdiction over the subject And there you can see the proper ready, which is
matter special civill action which is certiorari, so instead
2. Litis pendencia of an appeal, in a dismissal without prejudice the
3. Res judicata and remedy is certiorari, Sec.1 Rule 65.
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Is that an exclusive remedy, because that was commissions somewhere else but it may be also
the one provided under Section 1 Rule 41? NO, prosecuted somewhere else, that is why
because as I have said, that complaint, that transitory actions.
action can be refiled.
Local actions on the other hand simply means, it
Rule 4 of ROC, states that when an action is a is an action which takes place by reason of
personal action the venue can be where the property, or maybe personal rights, and which is
plaintiff resides, or if there are several plaintiff dictated by a definite Rules on pleading as
and defendants, where the principal plaintiff opposed to transitory actions.
resides.
For example in the Revised Penal Code, you have
However, if what is filed a petition for the transitory actions and transitory crimes. Look at
deposition before action, you want to perpetuate Piracy, it admits several venue for purposes of
the the testimony of the witness in which you filing an offense defined as Priracy, its not
intend to present in the future action, Section 1 limited and take note that in criminal action
Rule 24. VENUE is JURISDICTIONAL as opposed to Civil
Action.
It is an action although it is a mode of discovery,
and there is a specific venue for that, and it is In Civil Actions venue can be waived, not in
where your future adverse party resides. criminal action because it is jurisdictional, so
comply with the proper venue requirement
It is notable that the amendments introduced,
because it will be construed strictly against the
have altered some important procedure in which
State.
as before may be allowable as a remedy, no more
under the present amendments. Suppose you But in civil actions whether ordinary or special
have the so called transitory action….. we have civil actions, the payor’s failure to question
real, personal and action in rem. All action in rem improper venue will result to waiver, because
are special proceedings, specifically where a venue can be waived.
proceeding require a publication as a requisite
In fact, under the omnibus motion Rule, what is
jurisdictional requirement, then that is a special
this omnibus motion Rule, pursuant to Section 8
proceedings and it will be a proceedings in REM.
Rule 15, parties need to invoke all available
defenses at the time that he files his motion to
dismiss which means otherwise that grounds not
Transitory Action vs Local Action
so invoked are deemed waived subject to the
In international law we always encounter, a provision of Section 1 Rule 9.
transitory action, what is this and where should
It means when you are talking about Lack of
this be filed?
jurisdiction over the subject matter ( res
Those that are covered by international judicata, litis pendencia), it is not governed by
conventions, there may be violations of human the so called omnibus motion Rule. 5.
rights law here in the Philippines that may be
sanctioned anywhere, there may be some
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Liberal Construction of Procedural Rules (Sec. 6 In habeas corpus, only 48 hours is given to
Rule 1) appeal a judgment rendered in a special
proceeding.
Section 6 Rule 1 is the most abused provision in
the Rules of Court in the name of substantial Ordinary appeal is filed at 15 days or multiple
justice and often invocation of substantial appeal or those required on record on appeal
justice. and special proceedings is 30 days.
In the Supreme Court is consistently inconsistent The period to file a petition for certiorari subject
in respect to this provision in the Rules of Court, to the case of NEJIS VS CA ( hindi ko sure ito)
respecting liberal interpretation of the Rules of where to file based on the fresh period Rule, 60
Court, although by codal provision, pursuant to days from the notice of the order or notice of the
Section 6, which says that these Rules shall be denial of a motion for the consideration under
liberally construed in order to ensure sec. 1 Rule 65.
inexpensive and speedy administration of
But if it is a certiorari under Rule 64 this a
justice.
provision provided exclusive for the review of
Again, the Supreme Court is consistently the final orders and decisions of the COMELEC
inconsistent. For one the liberal interpretation is and COA - 30 days and NOT subject to fresh
always consistent but the application is period Rule.
inconsistent.
But the old concept, the BALANCE PERIOD RULE.
In one case it applies liberal construction in the This has been applied in the case of GMA vs
other it applies a rigid interpretation, although Sandiganbayan, when the Sandigangbayan,
basically the consistent jurisprudence with denied the demurer filed, it went to the supreme
respect to liberal interpretation about the Rules court and filed a petiton for certiorari although,
is this, as early as Ahong Trading, SC said: pursuant to the last paragraph of Section 23 of
Matters governed by the Rules respecting Rule 119, it is expressly prohibited, certiorari is
reglementary period, or acts required by the Rule expressly prohibited, just like appeal which is
or by the court to be done should be rigidly similarly and according to Chief Justice
observed. Bersamin, the Supreme Court can relax the Rules
when it is demanded by justice, in order to
If you are talking about appeal or perfection of
prevent grave injustice.
an appeal, filing of petitions, or certiorari for
example the period must be strictly observed in
which to file the appeal, otherwise the appeal
Nature of Courts
may be dismissed because it was taken out.
Therefore, one must take note of the period What is the nature of our courts? As we know
within which to file the appeals and perfect the from the very beginning, courts in the
appeal, if it is 15 days, you have to it before 15 Philippines are both Courts of Law and Courts of
days expires. Equity.
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Courts of law means that we only have courts February 7, 2020

that are created by law, like the Constitutional
Court or the Statutory Court.
Let’s talk about the error of jurisdiction and error
As I have said we only have one Constitutional
of judgment.
Court and that is the Supreme Court and down
to the first level courts are statutory courts. We know that Court can exercise this jurisdiction
only if and when it is conferred such jurisdiction
And that our courts, seek, tries and decides
conferred by law. Jurisdiction is the authority to
controversies and exclusively and supposedly in
decide a cause, and not the decision rendered
conformity with our existing laws.
therein. Where there is jurisdiction over the
But here comes the Rule on equity, our courts person and the subject matter, the decision in all
are likewise courts of equity, what is required as other questions arising in the case is but an
far as our courts are concerned, because it is a exercise of such jurisdiction.
courts of law and at the same time it is a court
Where the court is possessed with jurisdiction,
of equity, when can our court exercise its
then, it can proceed to try and decide the cases.
jurisdiction in pursuit of equity, and where
However, without which, the proceeding is
should equity sits in.
totally void and in that process, you can say that
The Supreme Court says that when there is a law, the court exercised its jurisdiction in accordance
equity has no place, but in the absence of a law, with law.
there may be an application of equity. Corollary
Now, What do you understand by this error of
to the principle of justice, justice and equity
jurisdiction? When can we say that there is error
demands that an outright relief to enjoin, to stop
of exercise of jurisdiction?
….. the respondent while committing an act and
continuing to commit such act which justifies the NOTE that when we talk about the jurisdiction,
issuance of the temporary restraining order. we do not talk about the judge, we talk about the
authority of the court. We do not talk about the
person who occupies the office, we talk about
the office which is vested with power or authority
by law.
The allegations in the complaint, not anything

outside, is the document by which the test of the
sufficiency of a cause of action is listed. The rule
is that whatever stated in that pleading will be
determinative of your cause of action.
And when the cause of action is determined,

that will be now a matter of purposes of
determining whether a matter of existing law,
the court will have jurisdiction over the subject
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matter. As jurisprudence will tell us, the test of is insufficient. So, within 1 year from that
sufficiency of the cause of action is determined demand, you need to file an ejectment case. Of
by the allegation in that complaint, and on the course, if prior barangay conciliation as
basis thereof estops the evidence or matters condition precedent is required, pursuant to RA
outside that court may render a valid judgment 7160 (Local Govt Code). After 1 year, you can no
and grant the reliefs prayed for in that longer file an ejectment case. What you can file
complaint. (TEST OF SUFFICIENCY) is an accion publiciana which is also a
possessory action no less than an ejectment case
Lets go back to error of jurisdiction, when is it
but filed after 1 year from the accrual of that
committed.
cause of action.
Class, there are 2 classes where the court may
So you file it, what court has jurisdiction on
commit error of jurisdiction.
Accion Publiciana according to BP129?
SEGUE: Do you know what is an accion Depending on the accessed value of the
publiciana? It is a possessory action. Just like property. This is a real action. In MTC if the
ejectment, the cause of action which would allow property is within metro Manila and the value of
the filing of this ejectment case accrued more the property is less than 50,000 pesos. If it is
than 1 year. An ejectment case, class, the law over 50,000 pesos you need to go to the RTC. If
provides that Whether it is forcible entry or outside metro manila MTC if less than 20,000
accion publiciana, shall be filed within 1 year pesos is the amount while RTC if more than.
from accrual of the cause of action. EXAMPLE, OKAY. So you file it. Suppose you file it with the
your tenant has a contract of lease that expires RTC but the value of the property is less than
today. As a landlord, you want him to vacate and 50,000 pesos. Here, the value is determinative
not renew the contract of release. You want him of the Court who shall hear the case. In one
to return the property to you peacefully. But the case, the plaintiff failed to provide the assessed
tenant refuses to vacate. Although class value of the property, hence, no court can take
demand, in cases of expiration of a contract of cognizance of the case. It has no difference pag
lease, is not jurisdictional. In all other cases nagfile ka sa RTC pero dapat sa MTC. Dismissed
such as non-payment of rental, or subleasing of pa rin.
the leased property will not allow the
If the RTC continued to try the case, shat error
constitution of violation of the terms and
has been committed by the Court? Error of
condition of the contract of lease, it would
Jurisdiction.
require prior demand and the service of that
demand letter to vacate is jurisdictional. Without Supposed it has jurisdiction, but it did not pass
tha prior demand, your complaint for unlawful the Barangay Conciliation and despite the MTD
detainer could be dismissed. or the invocation of that lack of compliance of
the condition precedent, the court still
In 2015, through Justice Brion, the SC held that
proceeded to try the case, what error was
the reason for that demand to vacate whatever
committed? Error of Judgment because the Judge
that violation is or it is by reason of expiration of
should have dismissed the action . Its refusal to
a lease contract must be clearly stated in the
demand letter. If not stated, the demand letter
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dismiss the case is not an error of judgment. THAT GROUND, What is the remedy? The proper
Look at Section 1 Rule 65. remedy according to the Supreme Court is
prohibition.
RULE 65 - Certiorari, Prohibition and Mandamus
If it is a grave abuse of discretion amounting to
Section 1. Petition for certiorari. — When any
lack or in excess of jurisdiction, then it shall be
tribunal, board or officer exercising judicial or
certiorari.
quasi-judicial functions has acted without or in
excess its or his jurisdiction, or with grave abuse If the court from the beginning is without
of discretion amounting to lack or excess of jurisdiction of the subject matter and the court
jurisdiction, and there is no appeal, or any plain, refuses to dismiss the action on that ground. It
speedy, and adequate remedy in the ordinary can be questioned at any time, even before the
course of law, a person aggrieved thereby may filing of an answer. Because lack of jurisdiction
file a verified petition in the proper court, over the subject matter is one of the grounds
alleging the facts with certainty and praying that allowed for the outright dismissal of the
judgment be rendered annulling or modifying complaint. If the court proceed, it is grave
the proceedings of such tribunal, board or abuse, but what separates certiorari and
officer, and granting such incidental reliefs as prohibition is the word “MINISTERIAL”.
law and justice may require. Prohibition will lie even against ministerial
function but which is absent in certiorari. SO
The petition shall be accompanied by a certified
prohibition both covers discretionary and
true copy of the judgment, order or resolution
ministerial subject matter. In prohibition, you
subject thereof, copies of all pleadings and
want the court or the officer to stop from
documents relevant and pertinent thereto, and a
performing both discretionary or ministerial
sworn certification of non-forum shopping as
function. IN contrast, if it is mandamus, you are
provided in the third paragraph of section 3,
being commanded to do or perform a purely
Rule 46. (1a)
ministerial function.
Error of Jurisdiction na kasi either the Court is
YOU CANNOT APPEAL IF YOU WANT A SPEEDY,
really without jurisdiction or had abused gravely
ADEQUATE REMEDY, YOU NEED TO FILE EITHER
or patently its discretion amounting to lack or
CERTIORARI OR PROHIBITION. Do not wait until
excess of jurisdiction.
the court renders judgment if there is already an
IN CONTRAST, when does error of judgment error in the exercise of jurisdiction. Because
takes place? under the ordinary course of law, there is no
plain, speedy, and adequate remedy. Why wait
When the court, having jurisdiction, exercised
for a judgment to make an appeal to that
error.
judgment when the court is denied jurisdiction
in the first place.
IF THE COURT FROM THE BEGINNING IS WITHOUT

JURISDICTION OF THE SUBJECT MATTER AND THE
SO WHEN NAGKAKARON NG ERROR OF
COURT REFUSES TO DISMISS THE ACTION ON
JUDGMENT?
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Error of judgment presupposes that the court 40, 41, then petition for review, Rule 42, 43,
already rendered a judgment. The court may petition for review on certiorari Rule 45.
have rendered judgment which has been
A motion for reconsideration is not a mandatory
contrary to law, a wrong application of the law
requirement to take an appeal, it is optional to
or that the judgment is contrary to evidence, or
the party. When you are confronted with a final
that the judgment has awarded excessive
order or a judgment, unless the final order is an
damages.
order dismissing the complaint without
I like to call your attention to Rule 37. prejudice, you can proceed to take an appeal
without first taking a motion for reconsideration.
RULE 37 - New Trial or Reconsiderations
UNLIKE AN INTERLOCUTORY ORDER, where as a
Section 1. Grounds of and period for filing general rule, you have first to file a motion for
motion for new trial or reconsideration. — Within reconsideration before you can file a petition for
the period for taking an appeal, the aggrieved Certiorari.
party may move the trial court to set aside the
judgment or final order and grant a new trial for
one or more of the following causes materially SUMMARY: Error of jurisdiction as distinguished
affecting the substantial rights of said party: from error of judgment
(a) Fraud, accident, mistake or excusable Error of jurisdiction is one where the act
negligence which ordinary prudence could not complained of was issued by the court without
have guarded against and by reason of which or in excess of jurisdiction and which error is
such aggrieved party has probably been correctible by prohibition or certiorari.
impaired in his rights; or
An error of judgment is one in which the court
(b) Newly discovered evidence, which he could may commit in the exercise of its jurisdiction,
not, with reasonable diligence, have discovered and which error is reversible only by an appeal.
and produced at the trial, and which if presented As long as the court acts within its jurisdiction,
would probably alter the result. any alleged errors committed in the exercise of
its discretion will amount to nothing more than
Within the same period, the aggrieved party may
mere errors of judgment.
also move for reconsideration upon the grounds
that the damages awarded are excessive, that
the evidence is insufficient to justify the decision
What do you understand about doctrine of non-
or final order, or that the decision or final order
interference or doctrine of judicial stability?
is contrary to law
What is prohibited is the interference because if
It provides for the grounds for Motion for
this will be allowed, there would be no Judicial
reconsideration. These are common grounds
stability.
where there is a plain error of judgment.
REMEDY: MOTION FOR NEW TRIAL, MOTION FOR This principle holds that courts of equal and
RECONSIDERATION OR ORDINARY APPEAL. Rule coordinate jurisdiction cannot interfere with
each other‘s orders. The principle also bars a
12
court from reviewing or interfering with the Section 7. Expediting proceedings; injunctive
judgment of a co-equal court over which it has relief. — The court in which the petition is filed
no appellate jurisdiction or power of review . may issue orders expediting the proceedings,
This is based on the policy of peaceful co- and it may also grant a temporary restraining
existence among courts of the same judicial order or a writ of preliminary injunction for the
plane. For stable judicial processes. preservation of the rights of the parties pending
such proceedings. The petition shall not
interrupt the course of the principal case unless
EXAMPLE: RTC has no power or authority to a temporary restraining order or a writ of
nullify or enjoin the enforcement of a writ of preliminary injunction has been issued against
possession issued by another Regional Trial the public respondent from further proceeding
Court (Suico Industrial Corp vs; CA, 301 SCRA in the case.
212).
When you go to the CA and ask he court to enjoin
In fact, this is related also to doctrine of or stop the RTC. That is not interference. That
immutability of judgment. (RULE 36) will not violate the judicial stability doctrine
because superior court has that power vested by
When a final judgment becomes executory it
law to enjoin, to stop, to correct the lower
becomes immutable and unalterable. The
courts. That is precisely the function of the
judgment may no longer be modified in any
superior court.
respect, even if the modification is meant to
correct what is perceived to be an erroneous CAN THE COURT HAVING JURISDICTION OF THE
conclusion of fact or law, and regardless of ACTION, AND IN FACT HAS ALREADY STARTED
whether the modification is to be made by the TRYING THE CASE BE DEPRIVED OF SUCH
court rendering it or by the highest court of the JURISDICTION? IF SO, WHEN WOULD BE AN
land. Any amendment or alteration which INSTANCE WHERE THERE COULD BE A VALID
substantially affects a final and executory DENIAL OF THAT JURISDICTION ALREADY
judgment is null and void for lack of jurisdiction, VESTED AND EXERCISED BY THAT COURT?
including the entire proceedings held for that
Here is RTC acting as family court, you know
purpose.
there is a law creating these family courts, RA
BUT IF IT IS THE HIGHER COURT THAT WILL 8369, What does this law provides, all cases
INTERFERE, THEN THIS IS NOT UNDUE involving minor and the jurisdiction is exclusive
INTERFERENCE. It is the exercise of judicial original, it shall be filed with the family courts
power nor will it violate the doctrine of judicial whether criminal or civil. Kahit na slight physical
stability. That is expressly allowed under the injury, RTC. Whether it is the private offended
Rules of Court where the superior court can party or the accused who is below 18, RTC yan.
enjoin the lower court. LOOK AT RULE 65
In criminal procedure, yung jurisdiction, it
Section 7.
depends on the penalty imposable. If it is 6 years
RULE 65 below- MTC and if more than 6 years- RTC. And
what is the penalty for slight physical injury
13
2days or 10 days, it dependes but definitely less controversies that are exclusive in their
than 6 years. expertise. For example, you have SEC which has
quasijudicial functions pursuant to PD902-8 it
I give you this law because this is the precise
exercises such power provided for including
example of the lotto effect where all cases sitting
intercorporate disputes as opposed to
in all court (mtc’s; rtc’s) where transferred under
intracorporate disputes. Because intracorporate
family courts where that court will be said to be
disputes now is under the original exclusive
divested of their jurisdiction because the law so
jurisdiction of RTC designated as commercial
provides. Because there is a transfer of
courts. So they render judgment and try cases
exclusive, original jurisdiction mandated by the
although in summary occasion. All
law itself. Although in reality, wala tayong
intercorporate matters should pass though that
family courts, what we have are all RTC’s only
agency, that commission.
designated by the Supreme Court.
Or labor disputes must be resolved in the NLRC
ANSWER: ONLY WHEN THE LAW ITSELF SO
by the Labor Arbiters or by the Commission on
PROVIDES. Insofar as procedural law is
Appeal.
concerned, there can never be substantive
vested rights. Except in criminal cases where Now under this doctrine of primary jurisdiction,
procedural law cannot be given retroactive effect Courts cannot take cognizance of these cases, it
if it is prejudicial to the rights of the accuse if it must be restricted, they cannot interfere. Parties
will constitute an ex post facto law. cannot directly resort to our regular courts
where a particular subject matter, dispute or
WHAT IS THIS DOCTRINE OF PRIMARY
controversy is placed by law within the
JURISDICTION?
jurisdiction of a particular administrative
The doctrine of primary jurisdiction precludes agency. And by law it must be that agency that
the courts from resolving a controversy over first should try and decide these cases. IF parties
which jurisdiction has initially been lodged with disregard these agencies, the Court will be said
an administrative body of special competence. to be without jurisdiction and the case will be
dismissed for failing to observe and resort to
Check the administrative agencies in Rule 43 but
these agencies vested with primary jurisdiction
exclude the Court of Tax Appeals particularly
to determine such disputes who in
provided under Section 1 of Rule 43. Because
contemplation of law have possessed expertise
class, by the expanded jurisdiction of the Court
to determine such controversies. Para syang
of Tax Appeals, its decision is now reviewable by
condition precedent.
the Supreme Court, it is now co-equal with the
Court of Appeals just like Sandiganbayan.
What do you think is the reason why it is there

under Rule 43?
Alright, you have these administrative agencies
exercising quasi-judicial function. They are also Under Rule 41 the Court which decides the case
subject to Certiorari. And these administrative is the RTC while under Rule 43, are these quasi-
agencies conducts quasi-judicial proceedings, judicial administrative agencies with uniform
14
procedure that are co-equal with the RTC. It has -In Honasan, the SC said that while the
the same rank kaya CA sila dinadala for appeal. ombudsman exercises primary jurisdiction
involving these offenses punishable under the
RULE 64 Certiorari ang CSC, COMELEC, COA
Anti-graft and corrupt practices, this does not
yung Appeal.
however preclude the DOJ Prosecutors to
While the Office of the President is higher than conduct such preliminary investigation subject
these agencies, the decision of the Office of the only to the primary jurisdiction of the
President is still reviewable by the Court of Ombudsman.
Appeals under Rule 43.
What does that mean? That the ombudsman at
How about the resolution or decision of the any time can exercise their power and take over
Secretary of Justice? CA But under Rule 65 Sec any case for purposes of preliminary
1. investigation even if it is already handled by
prosecutors of the Department of Justice. Pwede
Review of Decision of the Ombudsman in
nilang kunin yan. Take over. It is precisely their
Criminal Procedure- Office of the Prosecutor or
primary Jurisdiction.
File a petition for review in the Secretary of
Justice and file a motion to suspend the criminal CASE OF LITO LAPID: latest case for speedy trial.
proceeding/arraignment. Last section of Rule
116.
How about the resolution or decision of the

Ombudsman? Supreme Court.
Administrative Resolution of the Ombudsman,

where will you go? CA Under Rule 43.
Ombudsman has primary jurisdiction over cases

committed by public official in relation to their
office or that their office is used as a means to
commit the crime in violation of RA 3019.
Primary Jurisdiction.
CASE: SENATOR GREGORIO HONASAN VS DOJ

PANEL OF INVESTIGATION
-It exercises primary jurisdiction in all

the criminal cases committed by public officials
or employees or private individuals in
consipiracy with public officials in violation of RA
3019 for purposes of conducting preliminary
investigation.
15
February 20, 2020 absolute Rule to a person who is under civil

interdiction.
Under the absolute Rule:

Parties to Civil Actions
1. Insane persons
Parties necessarily be either a claiming party:
2. Minor
A. plaintiff- the original claiming party
B. defendant - original defending party But the Rule is not absolute only suffering from
civil interdiction Why?
Because the end result of the penalty of civil

Requirements for a person to be party
interdiction is only limited to his rights to
He must have legal capacity to sue dispose and administer of his properties which
means civil rights.
Q: Why must have legal capacity?
Q: When does civil interdiction attaches to a
A: Because if the person is incompetent or not
person as a consequence of his conviction?
legal capacitated, the complaint will be subject
to outright dismissal. Answer: when person is convicted of a crime with
a penalty of more than six years, civil
But only as far as the person who will file the
interdiction attaches. The reason for this is that
case, not the one against filed. Now look at Sec.
the disqualification of the offender to apply
2, Rule 92.
probation. The person will be incarcerated thus
Sec. 2, Rule 92 he cannot administer his property.
Section 2. Meaning of word "incompetent." — Sir: Thus only those persons who are legally
Under this Rule, the word "incompetent" includes capacitated are allowed to file and maintain an
persons suffering the penalty of civil interdiction action. If the person is incompetent, the
or who are hospitalized lepers, prodigals, deaf complaint filed will be subject to outright
and dumb who are unable to read and write, dismissal via a motion to dismiss.
those who are of unsound mind, even though
If you look Section 1, Rule 16, among the
they have lucid intervals, and persons not being
grounds for the dismissal of a complaint by way
of unsound mind, but by reason of age, disease,
motion to dismiss is lack of legal capacity to sue.
weak mind, and other similar causes, cannot,
without outside aid, take care of themselves and i.e the complainant is insane and he filed a
manage their property, becoming thereby an complaint. The defendant, knowing that the
easy prey for deceit and exploitation. plaintiff is insane, may file a motion to dismiss.
And having that incapacity, necessarily the
Under this Rule, these are the person who are the
complaint will be dismissed.
proper subject of guardianship. When a person
is called upon to be assisted by another, it can Q: Is there a remedy for this?
be said simply that he is incapacitated. But is not
16
A: Yes. The Rules on guardianship will be dismiss on the ground of lack of legal capacity
applied. on the part of the plaintiff.Rule 16, as amended,
was deleted thus no longer exist.
Sir: For the person to be capacitated, to file and
maintain action and would not be subjected to Q: what now is the remedy?
dismissal, he needs a guardian, that precisely is
A: Under the amendment, the motion to dismiss
the purpose of Rule 92 to 97. You can have a
can invoke only in an Answer, and no longer via
judicial guardian, which could either be guardian
a motion to dismiss under Rule 16.
ad litem or legal guardian under special
proceedings. Sir: If the ground available is lack of legal
capacity on the part of the plaintiff, do not file a
Under the Rules either that incompetent or the
motion to dismiss because it is a prohibited
adverse party can apply for guardian ad litem for
motion.
the former.
Q: Are the grounds under Rule 16 no longer
Q: why does the adverse party needs to procure
available for a motion to dismiss?
for the guardianship of the other party?
A: No. There are 4 remaining grounds which are
A: because if you want to sue that incompetent,
exclusive, to secure the outright dismissal of a
the complaint although not subject to dismissal
complaint.
outright, he must likewise be assisted. And that
necessarily will require the appointment for the Sec. 1, Rule 9.
guardian.
1. lack of jurisdiction
Sir: But if the incompetent one is the defendant,
2. res judicata
that defendant incompetent cannot move for the
dismissal of the complaint. It is only when in the 3. litis pendentia
case of the plaintiff that the complaint he filed
4. Prescription
by reason of his incapacity, the case will be
dismissed by way of a motion to dismiss. Sir: These are the only available grounds for the
outright dismissal of the complaint through a
And so there being a necessity for the defendant
motion to dismiss the complaint.
incompetent to be assisted by a competent
person, the plaintiff who sued the incompetent Thus, if the ground is lack of jurisdiction over
can secure for a guardian for the purpose of the person of the defendant, improper venue,
securing the action which could be a valid statute of frauds, failure to comply with the
proceedings. requirements; the complaint will be dismissed.
As far as the defendant, the capacity to sue does The legal capacity to sue however does not apply
not apply. Only in so far as dismissal outright if the action is one involving environmental
because it is not a ground. cases, provided that they are also represented.
In fact non- existent person can file actions by
But off hand, because of the amendments to the
reason of the doctrine lay down in Oposa vs.
civil procedures, you cannot apply a motion to
Factoran case; where the unborn child was
17
recognized to have a right to call for balance And naturally being recognized by law it may
environment and ecology. now acquire legal personality.
Q: Does this mean that this Rule under 2. Corporation

intergenerational responsibility transcends the
 Recognized to have its secured legal
legal capacity to sue Rule under the Rules of
personality the moment it is issued a
court?
certificate of registration from SEC.
A: No, because this Rule is exclusive only for
 That signalizes the birth of juridical entity
environmental case. Thus if not environmental
hence it possess the legal personality, the
case, the requirement of legal capacity still
legal capacity.
applies.
 With respect to corporation by estoppel, it
Sir: Also the Rule in Oposa case was further
cannot sue but it can be sued.
expanded in the case of former Sec. Reyes.
Where the SC Ruled that even mammals, trees, Q: how about a foreign corporation? When it is
mountains can be parties in environmental allowed to sue provided that it is a de jure
cases. Thus even non- existent things can be corporation?
parties to environmental cases.
A: If it secured a license to do business in the
Philippines together with a registration from the
SEC. If not registered or permitted to do
Two kinds of special civil actions under
business in the Philippines, the foreign
environmental cases:
corporation cannot sue but may be sued.
1. Writ of Kalilakasan
Sir: But this Rule is not absolute
2. Writ of continuing mandamus
Exp:
 Isolated transactions in the Philippines

Legal Capacity as far as juridical entities
 Contractual obligations, where they are
1. Partnerships allowed to make use, secure the legal
process, which includes to sue in courts
 Maybe registered or not registered
2. He must be a Real Party-in- Interest
 Two or more persons who contribute money,
property or industry with the purpose of  The person must have a direct interest and
dividing whatever income or profits would material right to file a case.A real party in
constitute partnership. interest is the party who stands to be
benefited or injured by the judgment in the
 A contract of partnership must have a capital
suit, or the party entitled to the avails of the
of P3,000.00 or that a real property is
suit. The benefited or injured must have
contributed to be registered in a public
direct interest not collateral.
document. If it is not it could exist by verbal
agreement and be recognized under the law. Ex.
18
You have a daughter who got married to a  In Sec. 1 Rule 16, in some notable en banc
lawyer. After two years, your daughter became a decision of SC, the failure to implead an
victim of domestic violence. As a father, you indispensable party is a ground for a
want to file a legal separation. Can you file the dismissal of a complaint by a failure to assert
suit? cause of action. Although this ground can
invoke no more under the amended Rules for
A: no, because the father is not a real party- in-
civil procedure.
interest.
Q: Where to file it?
Q: But supposed it is a criminal case, can the
father file a criminal complaint against the Ans: you can file it in the answer
husband? Or even disbarment?
That is why there is no more application of the
A: Yes, because it is a public crime. It is now omnibus motion, now the Section 9 of Rule 15.
considered as an offense against the state.
Section 9. Omnibus motion. — Subject to the
Exp.: Sec.5 , Rule 110. provisions of Section 1 of Rule 9, a motion
attacking a pleading, order, judgment, or
It is also applicable for disbarment or other
proceeding shall include all objections then
administrative cases.
available, and all objections not so included shall
 The same Rule applies to the person whom be deemed waived.
you will sue. You can only sue the real
 All grounds available to a party for a
parties-in-interest. Sue the person who is
dismissal of a complaint via a motion to
directly and materially liable to you.
dismiss must be alleged/ invoked to that
Although necessary parties can be joined
motion to dismiss otherwise they are waived,
also, more so if the person is an
except those under Section 1, Rule 9 (the
indispensable parties. All indispensable
fourgrounds).
parties are all real party-in-interest. When
you are talking about indispensable party, he Section 1. Defenses and objections not pleaded.
must be joined and impleaded because — Defenses and objections not pleaded either in
under Section 7, a motion to dismiss or in the answer are deemed
waived. However, when it appears from the
Section 7. Compulsory joinder of indispensable
pleadings or the evidence on record that the
parties. — Parties in interest without whom no
court has no jurisdiction over the subject matter,
final determination can be had of an action shall
that there is another action pending between the
be joined either as plaintiffs or defendants.
same parties for the same cause, or that the
 Without him no final determination and action is barred by a prior judgment or by statute
closure. Those who are only impleaded can of limitations, the court shall dismiss the claim.
be affected by the judgement. If you did not
Q: Where this omnibus Rule, be applicable?
implead him and execute the judgement, it
is a violation of due process. Ans: the answer.
19
 There can still be an omnibus motion, but it court now requires proof with respect to the
is applicable only if you file that answer allegation.
having only a one ground or not of them.
 That is now the purpose of sec. 6, Rule 16,
 Supposedly, if you will file a motion to which is to hear matters, which requires
dismiss, there is a preliminary hearing under establishing a fact, would necessarily
Sec. 6, Rule 16. presentation of evidence. When there is no
hearing, how can you present these pieces of
Section 6. Pleading grounds as affirmative
evidence? That is now the problem. The court
defenses. — If no motion to dismiss has been
will now deny because, there is no evidence.
filed, any of the grounds for dismissal provided
However, if there is a hearing, the court may
for in this Rule may be pleaded as an affirmative
ask the party to produce pieces of evidence.
defense in the answer and, in the discretion of
the court, a preliminary hearing may be had Q: how to resolve this problem?
thereon as if a motion to dismiss had been filed.
Ans: wait for jurisprudence
The dismissal of the complaint under this
Q: what is the remedy of the defendant?
Section shall be without prejudice to the
prosecution in the same or separate action of a Ans: file a petition for certiorari before the CA
counterclaim pleaded in the answer. anfd ask for preliminary injunction.
 The court upon motion, or motion of the Rule on Joinder of Parties

defendant, may avail these affirmative
Necessary Parties
defenses, as if a motion to dismiss was filed.
 If you join an improper party, it is not a
Q: Under the new Rules, can you file a
ground for a dismissal because the court
preliminary hearing (sec. 6, Rule 16)?
may always drop an unnecessary/ improper
Ans: No, because it is prohibited. party. Just like joinder of cause of action,
provided court may acquire jurisdiction over
 But the Rules imposes a duty upon this court
parties.
when the action is pending to resolve these
grounds invoked in the answer by way of Ex. B, C, D obligated themselves solidary to a A.
ground for dismissal of complaint within the A sued B.
period of 30 days. It now the duty of the
Q: Can B join C and D to the complaint since they
court to look at the answer. If these ground
part of the loan?
exist, it duty of the court to resolve within
the period of 30 days. If any of the grounds Ans: No. because they are not indispensable
exist, the judge must dismiss the complaint. party and the obligation is a solidary one. The
only remedy of B is reimbursement.
 But there is a problem, if the court does not
hear and calls for an evidence. Q: what if the obligation is joint one; can C and
D be impleaded?
Ex. The defendant invokes that the plaintiff is
incompetent. He alleges that he is insane. The Ans: it depends.
20
If A is asking the whole payment, the court 2. File a cross claim against other
cannot resolve for the whole debt since it is a defendants
joint obligation. There is a sufficient cause of
3. The other defendants may file a 3rd party
action, but the right is only limited.
complaint against a third party 3rd party
C and D are only necessary parties. which is a total stranger through
compulsory process
Section 8. Necessary party. — A necessary party
is one who is not indispensable but who ought Note: Interpleader is another situation of
to be joined as a party if complete relief is to be compulsory process to join a total stranger (even
accorded as to those already parties, or for a some lawyers do not know this).
complete determination or settlement of the
Rule 62 Interpleader
claim subject of the action.
Section 1. When interpleader proper. —
 If you needed to be implead, in the court’s
Whenever conflicting claims upon the same
discretion, implead a necessary party for a
subject matter are or may be made against a
complete relief.
person who claims no interest whatever in the
Q: are there any situations where parties may subject matter, or an interest which in whole or
voluntary join an action? in part is not disputed by the claimants, he may
bring an action against the conflicting claimants
Ans: Yes.
to compel them to interplead and litigate their
Ex. A discovered in a newspaper a case regarding several claims among themselves.
to his land. Can A file an action to join to the said
Ex. A is claiming a property in the warehouse of
case? How?
the B (defendant). However, B cannot release the
Ans: Yes. Through intervention, you can join as property, because C claims that he was the new
defendant intervenor or plaintiff intervenor. owner of the said properties.
Sec. 3, Rule 19 Q: what is now the remedy of A?
Section 3. Pleadings-in-intervention. — The Ans: Replevin if provisional remedy or delivery of

intervenor shall file a complaint-inintervention if personal property if principal action.
he or she asserts a claim against either or all of
Spouses as Parties
the original parties, or an answer-in-
intervention if he or she unites with the Section 4. Spouses as parties. — Husband and
defending party in resisting a claim against the wife shall sue or be sued jointly, except as
latter. provided by law.
Q: Can a defendant becomes a plantiff? Q: are husband and wife always mandated as
party to an action?
Ans: Yes.
Ans: it depends.
1. File a counterclaim against the plaintiff
21
However, if the action affects property relations February 21, 2020

between the husband and wife, then both must
be impleaded. If you are not sure, you can
implead them as alternative parties. Venue
Q: Suppose there are several plaintiffs, and want Venue is the situs or the place where an action
to file an action for partition under Rule 69. A should be tried
adopted partition for his heir against B. Will the
And the Rule provided under Section 4 classifies
partition prosper?
action for the purpose ofwhether it is real or
Ans: Yes. personal
The only way a property cannot be partitioned if We have to know where lies the difference
there is a will provided for that but that is only between real and personal action
limited for 20 years.
This is different from what we call, for purposes
of acquiring jurisdiction, which the Rule
classifies either actions strictly in personam,
quasi in rem or in rem actions
So where will you file your complaint? First

determine whether it is a real action or a
personal action
Rule 4, Section 1. Venue of real actions. —

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.
Forcible entry and detainer actions shall be

commenced and tried in the municipal trial court
of the municipality or city wherein the real
property involved, or a portion thereof, is
situated. (1[a], 2[a]a)
If it is a real action, then you have to file it in

court where the property or any portion thereof
lies or located.
So if the property is in Manila you have to find it

in Manila
22
Example If there are several descendants then i have the

option to file it at the residence Off the principal
I want to file an ejectment suit for forcible
defendant
entryor unlawful detainer, accion publiciana,
accion reinvidicatoria.These are actions which
involve real property. Accordingly pursuant to
Action for perpetuation of testimony (Rule 24)
Rule for you have to file the complaint in the
court with jurisdiction where the property is Section 7. Depositions pending appeal. — If an
located appeal has been taken from a judgment of a
court, including the Court of Appeals in proper
Real actions are actions which affect title,
cases, or before the taking of an appeal if the
ownership, possession or any interest involving
time therefor has not expired, the court in which
real property.
the judgment was rendered may allow the taking
So I have an interest in the property. What is your of depositions of witnesses to perpetuate their
interest?I am the mortgagee. Therefore it is a testimony for use in the event of further
real action and file it where the property is proceedings in the said court. In such case the
registered party who desires to perpetuate the testimony
may make a motion in the said court for leave to
I will file an ejectment. This is a real action
take the depositions, upon the same notice and
because it is an issue of possession involving
service thereof as if the action was pending
real property
therein.
I will file an accion reinvindicatoria. It is an action
The motion shall state (a) the names and
which involves precisely an ownership of
addresses of the persons to be examined and
property. I cannot file that in Quezon City where
the substance of the testimony which he or she
the property is in manila because this is
expects to elicit from each; and (b) the reason
dismissible for improper venue although again
for perpetuating their testimony. If the court
under the Rule of pleadings(*),you cannot file a
finds that the perpetuation of the testimony is
motion to dismiss
proper to avoid a failure or delay of justice, it
I will file an action for support which is a may make an order allowing the depositions to
personal action and at the same time an action be taken, and thereupon the depositions may be
in personam. So according to Rule 4, it being a taken and used in the same manner and under
personal action because it is an action directed the same conditions as are prescribed in these
against another person Rules for depositions taken in pending actions.
TheRule says that I am permitted to file this There is but one and exclusive venue provided
complaint in a proper court where I am a resident by the Rules itself. you cannot file that as you
the place of my residence or I have the option to wish where you want it to be although apparently
file it where the supposed defendant resides This is a personal action.
If there are several plaintiffs, then at the But there is no dependent here so you initiate
residence of the principal plaintiff this by filing a petition. this is not in strict sense
an action because it is placed under the Rules on
23
modes of discovery but this is not also you cannot file that in your residence where you
exclusively as a mode of discovery reside.
Why? Because the Rule is that mode of discovery You want to secure the testimony of a person
is like provisional remedies. what is the residing in Baguio city but you reside in Quezon
significance of the comparison? City but you will file an action in the future
against a person residing in Tawi-Tawi. You
Modes of discovery are supposedly dependent
have to file the petition in Tawi-Tawi. (Sec 1.
upon a principal action, not exist alone by itself.
Rule 34)
in the same manner provisional remedies are
likewise dependent upon a principal action.
You cannot file an action for a preliminary Venue is procedural. Although in criminal action
attachment, injunction, or an action for is substantive because it is jurisdictional as
receivership opposed to civil action. So you have to file that
in the place where:
But receivership in itself could also be a principal
action and at the same time a provisional remedy 1. Some or all the elements of the crime was
specially in commercial cases. Incorporation law committed or where the offense was
in reference to corporate rehabilitation committed
Replevin, delivery of possession of properties 2. If it is a continuing offense, in any place,

capable of manual delivery.it could also be a where one, some, or any of the elements
principal action but it is designated as action for was committed
recovery or delivery of personal properties
If you have to file an action for a violation of BP
You cannot file an action for support pendente 22, you can file that where the check was issued,
lite. You can file an action for support but not or eventually deposited.
support pendente lite
But if it is piracy, it can be prosecuted because it
So there has to be a principal action in order for is an international crime(*)
a party to avail provisional remedies
But in civil actions, you only have to look at
Similarly, if you are looking at the modes of venue as procedural.
discovery you can at modes of discovery. This
Being procedural, necessarily it is subject to
can be available only ancillary to an existing
waiver. It can be waived. Matter of improper
principal action
venue can be waived. That’s the purpose of the
But if the purpose of this discovery procedure is omnibus motion Rule, supposedly.
to secure an advance testimony of a person
So that, at present, if that ground is not invoked
intended to be used or utilized in a future action
in the Answer, it is deemed waived. You can no
then it could be a principal action ( so it is an
longer question that at a latter stage of judicial
action to perpetuate testimony)and then you
proceedings because under the present Rule, it
provided under Rule 24it can only be filed in the
venue where the expected adverse party resides.
24
shall be invoked either: in a motion to dismiss or convenience, now provides inconvenience that
answer cannot be countenanced*
But the motion to dismiss under the amended, Obligations arising from contracts have the force
being a prohibited motion, you can only invoke of law between the contracting parties and
that ground in your Answer. If not, it is deemed should be complied with in good faith. (Art.
waived. 1159)
Being procedural, venue can be subject of So when the parties contemplate and finally
agreement. The parties in a contract must agree agree, that is the law between them. Not simply
in writing. Therefore, the mutuality of contract because of inconvenience by what you have
would apply. If they agree = venue for purposes voluntarily agreed could you have a freedom to
of commencing an action. choose because you bound yourself of that
obligation
But the Rule and jurisprudence say, for venue to
be exclusive, the agreement musst be worded While there may be an injury that will result to
and to denote exclusivity. Purposely, agreement by the parties not in all cases that
establishing specific and only venue. You have to such injury could be a ground to violate the
write in your contract that the agreement of agreement, not a license to what has been
stipulation of venue as to exclude the wordings previously agreed
of the agreement that would show that this is the
Unless that consent is tainted with fraud force
intended venue and no other.
threat or intimidation or any form of acts that
“The parties hereby agree that in cases of taints the free will of the party
violations of any of the provisions of this
What has been agreed that resulted to an
agreement, venue should be in the proper courts
obligation is the law between the parties, it must
of Quezon City exclusively or only and no other”
be complied with in good faith
If not exclusive = merely an additional venue
The Civil Code also provides that ignorance of
where the parties could choose to file the action.
the law excuses no one from compliance
So the motion to dismiss, for example, will not therewith
prosper.
Difficulty in the interpretation of what the law is
Is there an exception to this exclusivity Rule of could be a reason for a person to be excused
venue if established by the parties in an from an onerous situation
agreement?
Sweet Lines Case: SC considered public policy
Where the circumstance amounts to… (di na
Sweet line is operating an inter-island vessel.
sinabi ni sir)
That juridical entity has its residence in Cebu
Venue is purposely established by the Rules of city. When a passenger boards a vessel he has
procedure for the convenience of the parties the ticket, If it is a cargo you have the bill of
litigants. Venue is for the speedy disposition of lading. In this bill of lading there is a fine print
every case. If venue, instead of providing or a provision “in case of actions arising from
25
this contract or agreement such action shall be was charged but was tried in Baguio city where
exclusively filed in Cebu city only”. The boat he was convicted. The venue was changed. But
sank, patay lahat. The heirs of the victims, some only the SC can order the change of venue. Just
of whom resides in Mindanao, Luzon and like in Mamasapano. For security reasons and
different places with different jurisdiction and secure witnesses who are afraid to testify.
filed an action against Sweet Lines.
So in the Mamasapano case, the SC ordered the
So nag-file sila sa Manila, Batangas. Kasi ang case to be tried in Quezon City. But the trial was
byahe nito is port of Manila to Cebu. And by held in Taguig. It was presided by a QC judge.
reason of this exclusive agreement found in the
You can change the venue in criminal actions but
ticket, the lawyer of Sweetlines filed a motion to
you cannot file the case somewhere else other
dismiss in all of these courts on the ground of
than where the crime was committed
improper venue. Some judges granted it. Let’s
go direct to the SC. SC reversed some of the So it was filed first in Maguindanao defiling is
dismissals. different that is jurisdictional. after the court has
acquired jurisdiction then it can be ordered
The SC said “If we sustain the proposition of the
transferred
improper venue in this case The circumstances
clearly indicate that Instead of providing a Is change of venue available in civil actions? Can
vehicle that is convenient to the parties to secure you also avail of change of venue once a case,
justice it unmistakably results in inconvenience for example filed in RTC of Manila can you avail
that is prohibited by public policy. And public to transfer this case to Quezon City?
policy dictates that this agreement should be
placed subservient
A filing of civil action or civil action is them
This is not a sacrosanct Rule that the parties
simultaneously filed unless reserved.accept only
have agreed to the exclusivity of venue What
in for instances: independent civil action where
does a sarili mean depriving parties on the other
the Rules do not require reservation in which the
venue on the dictates of public policy
party at any time can file. What are they?
In criminal actions is it correct to say that the
So if the criminal action is transferred it follows
venue could be changed?It is jurisdictional
that the civil action will also be transferred.
Venue can be changed?
Take a local independent civil action and what
Mamasapano case. The crime was committed in are those cases which the Rules of court
Maguindanao. The complaint was filed in..? expressly pronounce as independent civil
actions?actions resulting from or under Articles
Jurisdiction with respect to venue can be
32, 33, 34, 2176. You do not contemplate a
changed. Venue in criminal action is
simultaneous independent civil action. You don't
jurisdictional.
need reservation
Dingdong Crisologo was charged with arson and
The independent civil action under those articles
murder (massacre daw ng isang barangay). He
not intended to your intention to file a criminal
26
action and if you file it there would have been a But not if it is culpa contractual because there is
possibility that it has been transferred to another a contract of transportation. these are employed
court or venue,would that be permitted? contract the moment you flag down the taxi and
as a passenger.
In 2176 it may result to reckless imprudence
(art. 365) The only defense for the operator is diligence in
hiring and firing for engagement and selection
People vs Bayutas case: SC explained the
and supervision of the driver our employees you
extinguishment of liabilities. He was convicted
have to prove that
and during appeal he died the supreme court
said that his civil liability was extinguished. What would probably justify change of venue in
Apparently that doctrine tells you that there civil action?
could no longer be a claim Based on delic and it
No jurisprudence where a venue in civil action
is extinguish even after the judgment has been
could be changed . But there is no prohibition
rendered. that is wrong. first based on article
100 of the revised penal code, every person
criminally liable shall be civilly liable. Article 84
Rule 5 is Rule on a uniform application of the
in relation to Article 89 as when our liability is
Rules
extinguished. Death is not one
Rules of court should be applied uniformly in all
Let us go to Art. 365, if it is reckless imprudence
courts involving similar action
and it involves public transportation There are
several ways by which you can file a claim for Where there are special Rules indicated or for
civil damages.Who won is the civil action for special actions then that Rule should be followed
quasi delict against the driver
Rules in ordinary civil procedure, all kinds of
actions which calls for a similar Rule should be
applied in all courts
Can you include the operator of the taxi for
example?
If the action is based on article 2176 can you For example, in cases of regular procedure
include that operator Consonant with the Rule applicable look at the concurrence of the
on vicarious liability under Article 2180 of the procedure that is applicable to both RTC and
civil code? This is an independent civil action MTC in a particular action what are these
because it is based on quasi delict. cases?in accion publiciana, specific
performance, accion reinvindicatoria.
Culpa aquiliana vs culpa contractual
In accion publiciana, MTC/RTC could exercise
Vicarious appeal - take note of that
jurisdiction.
You cannot impose liability on the operator
When does mtc could exercise jurisdiction over
based on quasi delict and a subsidiary liability if
action publiciana? Where do we determine if it
you file an action based on delict
should be commenced in rtc or mtc?
27
There are only two substantive laws that teaches In fact, Section 1 of Rule 43 will tell you about
us to determine jurisdiction: BP 129 as amended Court of Tax Appeals
by RA 7691, tells us primarily the determination
CTA is now co-equal of court of appealsand
of jurisdiction of courts
sandiganbayan. So all decisions of cda and
RA 7691: Increase the jurisdiction of the courts sandiganbayan are directly reviewable or must
of first tier be brought directly to the supreme court being
co-equal with court of appeals
For example, those cases enumerated in Section
4 of Rule 1. Naturalization, Election cases, Land Is there any provision that is applicable to the
Registration or Cadastral cases and Insolvency court of tax appeals and the Sandiganbayan
being co-equal with the court of appeals?
These are not special proceedings except
insolvency, but these are special actions Having removed this from Rule 43, is there any
provision applicable to court of tax appeals and
We don't necessarily apply the Rules of Court
Sandiganbayan so we could say that there is an
because it says except by suppletory application
application of Rule 52 court of tax appeals and
Under Rule 70 while it is a special civil action you Sandiganbayan?
don't apply the Rules of court
Rule 45, 65 - Review of final orders of decision
if you are encountering actions for forcible entry CTA (by Petition for Review on certiorari or
and unlawful detainer, what will you apply? special civil action for certiorari)
These are ejectment cases you apply Presidential
That's why the petition of Gloria Macapagal
Decree 1589
Arroyo against Sandiganbayan in the matter of
The Rules that is provided in Rule70 is her denial for his demurrer of evidence. Rule
subservient to the Rules on Summary Procedure 119, Sec. 23. Where there is a denial of a motion
because these are among the cases covered by for leave to file a demurrer or denial of a
Rules on Summary Procedure demurrer this cannot be appealed neither can it
be subject of certiorari. it is expressly
These are the only special civil actions that is
prohibited.
covered by summary procedure
Under the Constitution all offenses are bailable
Cases that involve or covered by Muslim laws of
except only in cases of capital of offenses
the Philippines they have marital family disputes,
we have special (Shariah Courts) courts
established for them for purpose of Muslim code
The Rules of Court divides it into two which is
of the Philippines
wrong, bail as a matter of right and as a
Will you file these Rules in the proceedings of discretion and bail can be denied only where the
court of tax appeals? Rule 43? offense involved is and the evidence of guilt is
strong
Rule 43 is a review of final orders of including
Court of Tax Appeals
28
Rule 45 is a Petition Certiorari as opposed to In cases when there is a dissenting justice, there
Special Civil Action of Certiorari of Rule 65 = that must be a division of 5 justices (special division).
could be applied to CTA and Sandiganbayan Doon, 3 out 5 will allow the promulgation of the
decision.
Rules on small claims, do we apply the Rules of
court? No sir, just like the Rules on summary San mo iaappeal ang decision ng CTA by
procedureas well as the Writ of Kalikasan division? CTA en banc
The Rules of court should be read side by side Unlike in the comelec, no appeal. MR only from
with other Rules such as Rules of evidence a decision by division of comelec. But because it
principally the trial witness Rule, electronic is reviewable under 64 you need to file MR. MR
evidence, DNA testing (Vallejo doctrine) will be elevated to comelec en banc. That is not
appeal. That is a motion for reconsideration
In criminal actions do we apply the Rules on
ordinary civil actions? Suppletorily in criminal FRIA Law of 2010 governs insolvency
procedure proceedings (special proceedings)
In ejectment there is an application insofar as If it is rehabilitation, this will be supplemented

the provision of Republic act 7160 (Local by corporate rehabilitation effective 2008
Government Code)there is a chapter in that law
dealing with Katarungang Pambarangay
previously covered by Presidential Decree Pleadings
1508,so we apply
What are the pleadings under the amendments?
FRIA Law of 2010 now governs insolvency cases What are the allowed pleadings?
Why are these election cases naturalization Complaint, answer, reply, counterclaim, cross-
cases, insolvency cases, (Sec. 4, Rule 1) are claim, third party (fourth, fifth..),
called special actions? answer/complaint in intervention, answer in
intervention, counter-counterclaim, counter-
CTA has its own Rules on procedure. The
cross-claim, rejoinder
Sandiganbayan also has its internal Rules of
procedure. As well as court of appeals. They
were not promulgated by SC, but their respective
Rule 12 - Bill of particulars
courts en banc.
Bill of particulars - is it a pleading?
CA decision decided en banc? There is none
Party may file a motion for BoP. It must be
Decisions of CA and Sandiganbayan by division
preceded by a motion. If the motion filed is
must be decided by that division unanimously.
vague, you file it. Purpose: explain the
Cannot promulgate a decision when there is
particulars.
dissenting justice.
You cannot file a motion to dismiss on this.
What happens if no unanimous vote?
29
Is a bill of particulars a pleading? If it is a part of February 27, 2020

the pleading, is it a pleading? YES IT IS A
PLEADING
Amended Rules.
The moment you file that it will form part of your
pleading Now. The often repeated Rule by jurisprudence
is that pleadings should be alleged by way of
Reply and rejoinder are only in specific instances
allegations. Only ultimate facts may be used,
evidentiary facts should be excluded. That's the
first Rule.
Is that Rule still applicable under the present

amendments? Do we still have to follow this Rule
in crafting our pleadings that we need to file in
court? Will that be sufficient if we follow this
Rule? For example, starting May, you file your
complaint in May. Will that still be the Rule that
we have to comply in preparing and filing a
pleading?
No. That is no longer the Rule.
Why? Because under the present amendment,

you have to allege, in your pleading, evidentiary
facts. In particular, which surprises me, the
names of your witnesses. Who are your
witnesses? And their brief statement of what
they're supposed to testify. And, in addition,
they have to attach their judicial affidavit.
What is this judicial affidavit Rule?
Judicial affidavit contains a Q&A form, matters

which the witness opt to testify on direct
examination. There are twelve Sections under
this Judicial affidavit Rule. The contents of that
judicial affidavit Rule substitute the direct
testimony of a witness presented in court. Now.
Under this Rule, that judicial affidavit shall be
submitted at least five days prior to pre-trial.
Judicial affidavit Rule applies now to both cases

and actions, whether it be civil, criminal or even
in official proceedings.
30
Now under the Rule of continuous trial Rule or Before, we were only guided by the sanctions
continuous trial Rule in criminal cases, only imposable against lawyers but limited to
government witnesses are exempt from judicial intentional violations on the Rules of forum
affidavits or perhaps whose time (???) witnesses. shopping. Now, both violations that may be
Now. There is none that you can cite under this committed as far as verification and forum
requirement of sufficiency of allegations in a shopping applies to both.
pleading that is primarily the duty of a pleader/a
Now then. What is the substantive requirement
party to determine who are these witnesses.
to comply with on verification of a pleading?
If the action is based in law. Of course, it is
Before that, I want you to remember that
mostly always be based in law because the right
jurisprudence tells us that not all pleadings need
to action is conferred/is granted under any law
verification. Pleadings, according to the Rules,
or any particular law okay? You have to allege, in
according to the Supreme Court, need not be
that pleading, the law on which the action is
verified. Unless required by law, a pleading need
predicated for basis.
not be verified. That's the Rule. But when the law
So if you are filing an action for annulment of requires it, you have to comply with what is
contract or recession of contract for example, imposed under these amendments. Otherwise,
you have to cite the provision of the civil code sanctions will result.
okay? Although prior to this amendment class,
Under the present Rule, verification must state
just to cite the history of this requirement, there
that all the allegations in the pleadings are true
was a Circular issued by the Supreme Court
and correct of his own personal knowledge
which requires parties to state in the title of the
and/or based on authentic documents or
pleading the law which determines the nature of
records. That's the requirement.
the action. You have to first time cite the law.
Now. It has been adapted under this Question now is, will that be still the same
amendment. Okay. requirements imposed passed May?
The next is verification. One of the longest No sir. Additional requirements as to the
amendments under the Rule of pleadings is the verification is needed in the new amendments.
provisions on verification. Look at that
Under the amendment Rules, additional
provisions. Substantially, however, the
requirement is made such as?
amendment has provided the sanctions for non-
compliance of the substantive requirements of Requires that allegation in the pleadings are true
verification. Ok. Very long, but substantially, and correct and should be based on his personal
materially, essentially, it deals with sanctions knowledge at the time or based on authentic
imposable. Take note that the impositions of the documents. The pleading is not filed to harass,
sanctions is not limited to the party or to this cause unnecessary delay, or needlessly increase
complaint. It extends beyond that. The lawyer, the cost of litigation; and the factual allegations
even his law firm, can be liable if there is therein have evidentiary support or, if
resulting and intentional violation on the Rule on specifically, so identified, will likewise have
verification. evidentiary support after a reasonable
31
opportunity for discovery. The signature of the Section 20 to Section 51 deals with testimonial
affiant shall further serve as a certification of the evidence.
truthfulness of the allegations in the pleading.
The other classification when you go to
(In short, he enumerated Sec 4, Rule 7 of
EVIDENCE as a subject, the other classification
Amended RoC)
are direct evidence, positive evidence,
circumstantial evidence... These are not the
basic and principal classification so you only
We'll get back to you later. Evidentiary matters
have three. One is object, the other is
which we just discussed must also be promptly
documentary and the third one is testimonial.
stated in that verification. So, side by side, with
the requirements of evidentiary matters which If we are talking about a person testifying then
must be alleged in the pleading. The verification that constitutes as testimonial evidence and this
shall confirm like allegation so they have to be judicial affidavit required to be attached to the
side by side matters respecting these evidentiary pleadings is object evidence.
requirements okay?
So not only will the pleading, now it includes

How about other evidence? If we are talking for
evidentiary matters, even the names of the
example of blood. We're talking about an ancient
witnesses, what else? Other types of evidence
document. Will you also attach that? Of course,
such as... What are the three types of evidences
this document, moreso if it is an actionable
under the Rules?
document, have to be alleged and its contents in
If we are talking about witnesses, what kind of at least in a summarized form must be stated in
evidence is that? Testimonial evidence. a pleading. Necessarily, if that is a requirement
for testimonial evidence, it follows that all other
If we are talking about documents, what kind of
kinds of evidence must also be attached to a
evidence is this? Documentary evidence.
pleading but how can you attach, for example, a
If we are talking about handgun or bolo or handgun?
weapon, what type of evidence is this? object or
What will you do about it? What will you do with
real evidence.
a gun? Will you bring that to the court?
Under the Rules of court, there are only three
No sir. Based on the document, a certified true
classification of evidence.
copy or a photocopy would be sufficient. That
One: Section 1, Rule 30. Object or real evidence. would be verified. If it is an object evidence then
a picture of that depicting this kind of evidence
Sec 2 up to Sec 9, Rule 130. In fact, Sec 2-19 of
would be sufficient. During trial, you have to
Rule 130 because Sec 10-19 pertains to
either produce or subject it to examination.
interpretation of documents or writings on a
document. This pertains to documentary So, this are those of an unusual change,
evidence. significant changes brought about by the
amendments.
32
Now, let's go to Certification against forum Now taking in the amendments, this ruling of the
shopping. The present Rule provides what must SC in this jurisprudence, do you think the
be complied with by way of this certification amendments made the jurisprudence
against of forum shopping pursuant to Section inapplicable? Can we still use this ruling?
5, Rule 7. And, as a Rule, the certification of non-
Unsure. This is an area where we will be in limbo
forum shopping must be executed by a party to
until such time another decision of the SC either
another. It must be a party to an action or if there
confirming the application of the executory
are several parties, all of them.
jurisprudence or otherwise making it
According to the Supreme Court, one of the obsolete/inapplicable. Not until subsequent
parties in so far as the cause of action, which case could probably reach the SC which will
affects all the parties, provides the parties who prompt the SC to revisit the ruling in South
have personal knowledge on the facts about the Cotabato.
allegations and his signature alone would be
deemed a substantial compliance. But the Ruleis
all of them must execute this certification of Is there any inconsistency, looking at this
non-forum shopping. jurisprudence and the present amendments? If
inconsistency exists then we could no longer
Now under the amendments, can forum
apply this jurisprudence. Given by May 1, an
shopping be executed by somebody else in
authority should be necessary and in fact be
behalf of a party?
required to be attached to the certification.
YES. Provided that an SPA or an authority should
Let's try to analyze this.
be attached to the pleading or attached to the
certification executed by the representative or The plaintiff or principal party shall certify under
agent. (See Sec 5, Rule 7) oath in the complaint or other initiatory pleading
asserting a claim for relief, or in a sworn
Now, before this amendment, we do have this
certification annexed thereto and
ruling in the case of South Cotabato
simultaneously filed therewith: (a) that he or she
Communications Corporation v Sto. Tomas. In
has not theretofore commenced any action or
that case, the SC made a ruling that in bases of
filed any claim involving the same issues in any
the president, general manager or acting gen.
court, tribunal or quasi-judicial agency and, to
manager, treasurer or even a labor specialist can
the best of his or her knowledge, no such other
execute this certification against forum
action or claim is pending therein; (b) if there is
shopping and that there is no more need of an
such other pending action or claim, a complete
authority or a document showing that they are
statement of the present status thereof; and (c)
authorized to execute such document. That
if he or she should thereafter learn that the same
means the moment it is by the president, for
or similar action or claim has been filed or is
example a general manager, that is enough
pending, he or she shall report that fact within
because the act authorized/presumed
five (5) calendar days therefrom to the court
authorized in the act of the party.
wherein his or her aforesaid complaint or
initiatory pleading has been filed.
33
The authorization of the affiant to act on behalf verification is required because the Rule now is
of a party, whether in the form of a secretary’s very explicit. The Rule is that "what is required
certificate or a special power of attorney, should by law in pleading need not be verified." but not
be attached to the pleading. insofar as certificate of forum shopping.
Failure to comply with the foregoing

requirements shall not be curable by mere
Now, our question is to look at the effect of this
amendment of the complaint or other initiatory
amendment to the ruling of South Cotabato v Sto
pleading but shall be cause for the dismissal of
Tomas (as early as 2010). Is there a conflict
the case without prejudice, unless otherwise
between the two? Look at Sec 5, Rule 7. (Again)
provided, upon motion and after hearing. The
submission of a false certification or non- Does this Section 5, Rule 7 of the present Rule
compliance with any of the undertakings therein likewise contain such requirement that the
shall constitute indirect contempt of court, authority if the person executing this
without prejudice to the corresponding certification against forum shopping should also
administrative and criminal actions. If the acts of attach its authority?
the party or his or her counsel clearly constitute
It does not. It is absent. Then there is a
willful and deliberate forum shopping, the same
significant difference. There is now seemingly a
shall be ground for summary dismissal with
disregard of the ruling of South Cotabato v Sto.
prejudice and shall constitute direct contempt,
Tomas. Because I will not believe and I will refuse
as well as a cause for administrative sanctions.
to believe that when they crafted the new sec 5,
(Sec 5, Rule 7)
Rule 7 that they were mindful of the South
Now, we're talking about the jurisprudence in Cotabato v Sto. Tomas Ruling. Having inserted
South Cotabato vs Sto Tomas. The Rule that requirement, now becomes clear that in
expressly requires that the authority should be every certification of non-forum shopping
attached. Where the party signs in a executed in a representative capacity that
representative capacity for purposes of authority must be shown.
complying the requirements for certification of
What is the implication? Even if he is the
non-forum shopping, he must prove his
president or gen. manager, he must have that
authority in executing the document which
authority coming from the board of merit by way
necessarily would require attaching his
of board resolutions. That is the main input in
authority. Whether it be SPA, a board resolution
the inserted requirements under Section 5, Rule
or secretary's certificate, he needs to prove that
7. It was done to purposely eliminate the
and to prove that is to show the document - The
exceptions because that jurisprudence is an
authority through a document which must be
exception also. That the certificate of forum
attached to the pleadings.
shopping must be executed by a party and if he
Because the Rule says and requires that in all represents a juridical entity, he must be
initiatory pleadings, it must contain and must be equipped with the authority coming from the
accompanied with the certification of non-forum board of that entity.
shopping unlike verification. But in all cases,
34
Until the Supreme Court finally again decide on Let's go to this amendment. When is amendment
the same issue, probably 10 years, the allowed? Let's be specific.
implications inserted in the new amendments
A complaint. When can we amend our complaint?
would disallow a person to cite that certification
Two ways? YES.
in its representative capacity without any
authority - expressed authority. Section 2. Amendments as a matter of right. —
A party may amend his pleading once as a matter
of right at any time before a responsive pleading
[RULE 10] is served or, in the case of a reply, at any time
within ten (10) calendar days after it is served.
Let's go to amendment and supplemental
pleadings. Please read 'understanding Section 3. Amendments by leave of court —
respecting amendments and supplemental Except as provided in the next preceding
pleadings.' What are the different kinds of Section, substantial amendments may be made
pleadings authorized under the present only upon leave of court. But such leave shall be
amendments of the Rules? refused if it appears to the court that the motion
was made with intent to delay or confer
Complaints. Answer. Cross-claim. Reply.
jurisdiction on the court, or the pleading stated
Counter-claim. Third party/Fourth party etc.
no cause of action from the beginning which
answers thereto. Interpleader. Bill of particulars.
could be amended. Orders of the court upon the
Counter-counterclaim. Counter-cross-claim.
matters provided in this Section shall be made
How about rejoinder? Is there rejoinder in the upon motion filed in court, and after notice to
amendments? is rejoinder allowed under the the adverse party, and an opportunity to be
amendments? heard.
Yes. In addition to reply, there is a rejoinder. So You can amend if that complaint as a matter of
basically, you have a complaint, answer, right when no responsive pleading is yet served,
counter-claim, cross-claim, third/fourth/fifth not filed, to a party intending to amend its
party complaints and answers thereto. Then you pleadings. In a complaint before the plaintiff
you have a reply, you also have to have rejoinder receives the copy of the answer, for example,
because the reply is simply an answer to an that motion to dismiss is not a responsive
answer and the rejoinder is an answer to the pleading.
reply. Simple as that. Follow? You also have
A motion is any application for relief other than
pleadings intervention which either a complaint
a pleading according to Section 1, Rule 50. But if
or an answer also in intervention. Take note the
an answer has been filed and served upon you,
bill of particular because the bill of particulars,
you can no longer effect amendments to your
once made, forms part of a pleading - an
complaints as a matter of right. For amendments
integral part of a pleading to which it supplies.
to be effected as a matter of right, apparently
there is no restriction but one where the
amendments now is to be effected by leave of
35
court. When you need to ask permission to court, is no less to confer jurisdiction to the court? Can
there is now this restriction upon the party. you do that?
It cannot be done by amending the complaint.

Agreed, Miss. Atag? If done as a matter of right
For example, your complaint of action publiciana
but in the rest of responsive pleading.
was filed in the wrong court. So the court has
apparently no jurisdiction. Your complaint for When amendment is to be affected as a matter
action publiciana does not allege the assess of right, the lack of jurisdiction or lack of cause
value or the market value of the property. You of action can be done by way of amendment. You
filed it in the RTC. The property sought to be can do that. Because as a matter of right, you can
recovered positioned by the plaintiff is located in do anything with your complaint. But let us go to
the City in Manila as declared under tax amendment by leave of court because now the
declaration XXX and covered by Transfer Rules explicitly provides this limitation. There is
certificate no. XXX issued by Registry of deeds in now a restriction even if the amendment is by
City of Manila. permission of the court. File a motion to leave
and it was granted so you file your amendment
But the defendant after expiration of his contract
complaint follow?
of lease continued to occupy the property
despite the mandate to vacate by reason of
expiration of contract, refuses and continue to
Now class. When you ask for leave of court or
refuse to vacate and turn over the property to
permission of the court for anything you want to
the plaintiff. None, in all the allegations,
do as far as your case is concerned such as
indicates the value of the property. Can any
amend your complaint, but only by leave of
Court acquire the jurisdiction of the subject
court. You first have to ask the court to allow you
matter?
to do that. But pursuant to Sec 9 of Rule 15,
No sir. Never the MeTC or the RTC can take under the present Rule. The leave of court, sec
jurisdiction/has jurisdiction as alleged in that 10 of Rule 15.
complaint for the lack of the value of the
When you ask the permission of the court which
property because under BP 129 as amended: the
means you will file a motion for leave, you have
Rule requires that the jurisdiction of the court in
to attach whatever the pleading you intend to
such action is determined by the assessed value
file. What is the requirement imposed under Sec
of the property. Without that, no court can be
10 of Rule 15 so when you have now the filing
said to acquire jurisdiction over the action so you
an amendment complaint of court by leave of
intend to amend your complaint. What is your
court, the motion and the amended complaint
intention? To insert the allegation that this
should go hand-in-hand. It must be attached in
property located in City of Manila has an
this motion because that is the requirement
assessed value of P1,000,000.
imposed specifically for motion for leave. What
Can you amend the complaint to include this is the purpose of this? The purpose of this is for
new matter, this new allegation? The purpose of the court to examine and determine whether to
allow it or not. So the Court will now have the
36
opportunity to look at the pleadings which you amendment? Meaning, you cannot amend your
want to file by way of amendment pleading. complaint if subject matter is those matters/are
matters prohibited. Correct? That is the clear
It also applies to supplemental pleadings. Look
import of this amendment. And the Rule is very
at the Rule on supplemental pleadings. It must
specific. Let's go to this one by one. What are
always be with leave of court.
these matters prohibited?
Section 3 of Rule 10: But such leave shall be

Going back to this leave of court, the only refused if it appears to the court that the motion
motion and pleading which is not required to be was made with intent to delay or confer
filed simultaneously for a motion for leave is a jurisdiction on the court, or the pleading stated
demurrer, especially in criminal decision. Look no cause of action from the beginning which
at Sec 23 of Rule 119, there are two period could be amended.
provided for the filing of motion for leave and
So one is, when it is only intended for delay with
demurrer itself which are non-extendable. Five
matters sought to be introduced by way of
days and ten days. So Section 10 of Rule 15
amendment is to delay, matters that are
could not apply to the requirements of attaching
frivolous, useless. You will not be granted leave.
a pleading with a motion for leave is filed. In
What else?
criminal case, the purpose of which is to file a
demurrer because a motion for leave can be Introduce a cause of action? It depends. On
denied. The reason why the Rule does not matters introducing a cause of action, the true
require simultaneous filing of a motion for leave definition is: you cannot do that if the complaint
and demurrer itself. Now let's go back to civil grounded on the very beginning has no cause of
action. Do we still have demurrer? action. Because you can introduce a cause of
action if the original complaint also has a cause
And if it done, will it also require leave of court?
of action. That could only mean an additional
Do we have demurrer in civil action? YES. Rule
cause of action. But, if that complaint is empty
33.
for the very beginning. Of course, that is subject
So we retain the Rule before, but they added the matter to Rule 33 correct?
title. Demurrer to Demurrer to evidence.
When there is no cause of action then you will
Do you need to ask the permission to the court have no right of action and you have no right to
to file that demurrer and if no permission is relief. And naturally, the consequences that
granted, will there be serious implications when followed is the dismissal of your
similar to criminal action? No. No need for complaint. So the Rule on pleadings granting
motion for leave. leave, in the first place, the court will not grant
such leave. That is why the court must be
enlightened what you are intending to introduce
Let's go back to the amendment pleadings. Let's in that amendment.
go to amendment by leave of court. What is the
Is the amendment that is being sought by the
restriction or limitations imposed under this
plaintiff would introduce a cause of action? So
37
the court must be enlightened. Examining the jurisdiction and you, in fact, believe there is
original complaint as against the amendment jurisdiction then file for Certiorari. You cannot
complaint. Was the original complaint with a appeal because this is a dismissal of a complaint
cause of action? If the original complaint has a without prejudice.
cause of action, the cause of action introduced
by the way of amendment is necessarily will not
be prohibited. Why? If the court is convinced that When is the dismissal with prejudice and without
the real purpose is to have a cause of action prejudice? Sec 1, Rule 16. There are several
which in the first place there is none, then it will grounds provided, the last of which is failure to
be denied. comply with condition precedent. Amendment
made it difficult because it scattered the grounds
How about jurisdictional purpose? Court has no
of dismissal. Let us go to F, H and I.
original jurisdiction over the case. If the purpose
is to confer jurisdiction, just like introducing
cause of action which before there was none, it
Rule 16, Sec 1.
cannot be done.
(f) That the cause of action is barred by a prior
judgment or by the statute of limitations; -
What then is the remedy if the Court dismissed Prescription
the amendment complaint due to the lack of
(h) That the claim or demand set forth in the
jurisdiction?
plaintiff's pleading has been paid, waived,
Let's go back to Motion to dismiss and those abandoned, or otherwise extinguished;
grounds which the court can motu proprio
(i) That the claim on which the action is founded
dismiss the case. Matters of jurisdiction is one of
is enforceable under the provisions of the
the grounds which the Court can summarily
statute of frauds; - Statute of frauds
dismiss a complaint without motion, on its own.
Is the Court in error in doing that in waiting for
an amendment? No. Because the Rules allow it.
Res judicata, prescription, statute of frauds,
But what happens if the court dismissed the
payment, waiver, abandonment and other
complaint, even after responsive pleadings has
modes of extinguishing an obligation.
been serviced?
Simple Rule. When a complaint is dismissed and
What is the remedy of complainant? Two things.
bars refiling to it, those are dismissal with
That is a dismissal without prejudice. We
prejudice.
discussed this Section 1, Rule 41. When we
discussed Rule 16 in connection to Rule 41, we Simple reading of Section 1, Rules 16. What are
extensively discussed this. Because this is a possible grounds that will bar the party that will
dismissal without prejudice, you cannot appeal. file a complaint to which has been dismissed?
That's one. And! If the party believes that the
If you can refile that same complaint then the
court have committed grave abuse in dismissing
dismissal is without prejudice.
the complaint on the ground that it has no
38
If you cannot refile for example because the Now. Of course, if usury is alleged, it must be
action has prescribed, the action is barred from made under oath. Because without denial under
previous judgement - res judicata, you are oath, the matter of usury is deemed acquitted.
barred from enforcing the action because it is This is an instance where the pleading needs to
unenforceable under the statute of fraud - The be verified. Where the Rules say that answers or
dismissal to any of these grounds are dismissal allegations must be under oath, respecting a
with prejudice. You cannot refile them anymore. particular matter, that means you have to verify
You also cannot file certiorari. Why? Because the your complaint. Verify it because the law
remedy is appeal. -> (Understand this because requires that this must be under oath. For
it will be in the bar. Important) example, in an application simultaneously made
in a pleading, that must be under oath. You have
to verify your pleading. You apply for preliminary
So the amendments with this restriction so far as attachment, provisional remedies - that
the amendment is done by leave of court. application has to be under oath, that is required
Although, outside this restriction, even under law.
substantial amendment is allowed. Introducing a
Now. Can a party file a reply at any time, as he
cause of action is certainly a substantial
wishes, if he wants to answer or controvert new
amendment, but the prohibition applies only and
matters alleged? No sir. Why? If the answer
exclusively where in the original complaint there
contains an actionable document.
is none as far as this cause of action is
concerned. If there is one, additional cause of Oh. The only instance allowed for the party to
action can be introduced. file a reply is when the answer filed by the
defendant [Plaintiff = reply; rejoinder =
defendant.] If an actionable document is
[Reply in Rule 10] presented, alleged, attached to an answer or
made an issue in an answer, that is the only
instance where the plaintiff would be allowed to
The office(?) of Reply is simply to controvert new file that reply. If the answer does not provide,
matters alleged in the answer. Remember when introduce or make an issue of an actionable
answer is filed to the complaint, there is no document, reply cannot be filed.
necessity to file in fact as a Rule to file for this
The same is true with rejoinder. When the
reply because it is deemed that all issues or
defendant files his answer with an actionable
matters have been controverted. So there is no
document and the plaintiff files this reply, also
more default. If it is new matters having been
introducing an actionable document in the reply,
introduced, if you do not want to file a
that is the only instance the defendant can file
reply before under the present Rules, you can
his rejoinder. Ex. In the complaint, the plaintiff
never be declared in default because the Rule is
alleges that the defendant loaned money of 500
simple. When the answer is filed, all matters have
dollars. If the answer, the defendant pleaded the
been enjoined and controverted.
defense of compensation of already
extinguishment of the loan.
39
*Compensation takes place when two persons action has accrued, matured after the filing of
are mutually debtors and creditors with each his complaint.
other, when both debts are due and demandable
EX.
then is this legal compensation by operation of
law? YES. Landlord orders lessees to give postdated check
by the end of the year. One lessee fails to supply
X attaches promissory note in reply.
the amount. Each check constitutes a cause of
Y offers Bouncing check as a reply. The BC is an action. Landlord demands payment after five
actionable document. check failures. Can you amend or supplement or
complaint? Supplemental complaint because
Can X file a reply? YES as it is an actionable
series of transactions happening took place after
document.
filing the complaint.
25
Can it be consolidated? YES. Consolidation and
If plaintiff wishes to answer new matters alleged severance under Rule 31, but don’t for money.
in the answer of the defendant which does not Honor and reputation are at stake for the
introduce an actionable document, what complainant.
pleading can he file to controvert new matters of
in the answer?
If there is no actionable document, file an

amended complaint or supplemental complaint.
So what distinguishes these two? How are these
two used in a party?
Rule 10, Section 6. Supplemental pleadings. —

Upon motion of a party, the court may, upon
reasonable notice and upon such terms as are
just, permit him or her to serve a supplemental
pleading setting forth transactions, occurrences
or events which have happened since the date of
the pleading sought to be supplemented. The
adverse party may plead thereto within ten (10)
calendar days from notice of the order admitting
the supplemental pleading.
The principle office, function and practice of

Supplemental pleadings is either in matters:
which the party decides to allege/add to his
complaint. Matters that could be introduced:
additional cost of action. But which cause of
40
March 5, 2020 preceding Section shall be applied. This is in

connection with Section 2, Rule 11.
Strictly speaking, it is not about always a foreign

Let us start...
juridical ntity but the period is the same 60 days.
Answer.. answer to what?
Now there are 2 instances under Section 16
 Complaint where summons by publication may be allowed
 Reply (Answer to the answer) - when it is which will provide to a party the 60 days period
allowed under the Rules on pleading within which to file his answer.
 (Answer to a reply) Rejoinder - in
1. Where the defendant is the unknown
instances when it is allowed
owner of a property subject of the action.
 Cross-claim
Normally an action in rem or quasi in rem
 Third (fourth,etc.) party complaint
because it involves real properties.
 Answers to amended complaint
2. The other is it may be personal action or
 Supplemental pleadings
action in personam. Because the
 Bill of particulars -defines pleadings that
defendant’s whereabouts is unknown.
needs to be answered
Before when the action is in personam service by
We have to identify What periods is given by the
publication is invalid. Ofcourse when you look at
Rules to parties to seasonable file and serve this
Rule 15 so many modes of summons. But since
pleadings.
the instances under this amended under which
We also have Rules on filing and service of service by publication could be allowed
motions pursuant to Rule 15 or motions that are necessarily includes an action in personam -60
____ days.
Usually motions are categorized or classified as When you go to Section 17 extraterritorial

litigated motions. Now you must have noted that service:
the period to file answer as a general Rule is 30
when the person to be served the summons does
days from service of summons subject to
not reside or is outside the Philippines. Because
extension.
the service of summons is confined within the
One-time extension which is of the same period, Philippines.
that means not exceeding the original period.
Now there are 2 modes to serve summons for
If it’s a foreign juridical entity Section one and defendants outside the Philippines pursuant to
two tells us that it shall be 60 days. Consonant Section 17:
with Section 16 and 17 or Rule 14.
1. Personal service
Now we are talking about under Section 16 2. By publication coupled with service of
service of summons by publication and Section summons to the last known address of
17 extraterritorial service of summons, followed the defendant. So it is not enough to
by Section 18 which provided you that the publish it must be with service o
41
summons. In this instance there has to It is this consular officials who will deem files the
be proof of publication and service to the letter to be submitted to the court.
last known address. Service. Service May
Where the court committed means where exactly
be by mail or by courier.
was the summons was served to the defendants
The fact is the officer of the court or any in a foreign country for purposes of computing
individual commissioned by the court has to file the period provided by the Rules which is 60
return. What is a return it is a report submitted days.
by the sheriff or server or defendant
Have you heard of “letters nugatory”? This is not
commissioned by the court to serve the
about summons this is about modes of
summons detailing the details on how the
discovery. It is a request made by our judicial
summons was served to the property. Limited to
authority, our judge here to a foreign judge
action in rem or quasi in rem.
requesting him to conduct deposition of a
Section 17 already tells you the mode of what the particular person found within his jurisdiction,
nature of service is... (tumunog phone and with a simple term to do the same when
nagtawanan di ko maintindihan) requested in the future.
Now how could you possibly serve the summons Now Section 18 tells you of the same procedure
personally outside the Philippines? to be observed for purposes of serving the
summons to defendants who are residents of the
You can commission the sheriff to go there
Philippines but is outside the county. Same
personally but it is too impractical and
procedure as Section 16 and 17 therefore same
expensive.
period to file answer.
How to effect service without having the sheriff
In all this cases leave of court is necessary. If you
go outside the Philippines?
avail this mode of service of summon so that the
We have the Department of Foreign Affairs, you period within which to file a responsive pleading
have to avail of our consular offices, the court apply you need leave of court.
upon leave of court can issue an order to effect
Now lets go to Section 10 of Rule 15.
the service of summon. Of course it is not the
ambassador who will do this. Motion for leave. In other words if you are asking
the permission of the court for certain remedy
Now who are this officers in the foreign service
then you have to attach to that motion a
who may serve:
pleading. Please remember that this requirement
 Consul general to attach a pleading is not absolute. The purpose
 Vice consul is merely to avail the service of summons. There
 Consul is no pleading that needs to be attached because
 Secretary of the ligations? your complaint has already been filed in our.
 Other consular abroad
All you are asking is for the court to authorize
They will serve the summons. the service of summon either by publication or
to commission the officers of DFA to serve the
42
summons. But necessarily because either registered to do business in the Philippines or it

personal service or substituted service is does not have a business in the Philippines. The
unavailable and you want an alternative service first of course that we are trying to know the
of summons by publication or extraterritorial appropriate government official that official is
service you need leave of court because you have the SECso the period is 60 days.
to allege the reason of the unavailability of other
Answer to amended complaint
modes of services.
This was subsequently amended. Here are two
So Section 2 for purposes of 60 day period is not
ways by which under the Rules may be amended.
confined necessarily to foreign juridical entity.
1. As a matter of right; 2. By leave of court.
Now for cases of foreign juridical entity why 60
You see before that answer is serve or before
days? Will the 60 days period apply of foreign
filing that answer naturally the court have not yet
corporation if that corp is license to do business
acquired jurisdiction over the person of the
in the Philippines? What are this juridical entity.
defendant. Assuming that they is not yet that
Under Philippine law there are only 2. One is
answer filed.
corporation and the other is partnership.
According to the Rules the defendant can amend
All foreign corporations doing business in the
his complaint as a matter of right. And anything,
Philippines has to have a license and be
the complaint may be overhauled, thee
registered with SEC and submit requirements
complaint may contain an allegation to confer
impose by law. One of this is to provide the SEC
jurisdiction. Now since jurisdiction has not yet
who are there resident agent so we will have
been acquired naturally the consideration shall
there office and agent.
be the original period within which to comply the
If we have a resident agent wala tayong original answer to file the original complaint.
problema kase pwede iserve sa resident agent. Which could be either 30 days or 60 days.
We will have a problem if the corp is doing Naturally since no responsive pleading has been
business in the Philippines without license or filed more so served. Original period shall
even with license but without a resident agent remain. Here comes the second instance, when
you will not have a person to represent the entity the amended is caused by leave of courts if
for purposes of serving judicial processes like authorized by the Rules on pleading its different
summons and so the law provides that in those the reason being that jurisdiction has already
instances that service of summons shall be been acquired over the person of the defendant.
served upon the appropriate government
So you have to remember Whether or not
officials if you look at Rule 14.
jurisdiction already attaches over the person of
So to whom shall the summon be served? The defendant? Then the period is different you can
only officer or official allowed or authorized to file an answer to that amended complaint but the
receive summons to foreign juridical entity period is 15 day from the date you receive the
would be who? Look at Section 14 of Rule 14. order of the court at making such amended. Not
from the date the order was issued but from
There are so many ways now to reach out to this
service of the order from receipt by the
foreign juridical entity in cases when it is not
43
defendant of the order at making the amended period, the SC also said that it does not deprive
complaint done as by leave of court. the trial court the right to fix a different period.
Now let us suppose that after the complaint the Let’s go to this answer where the defendant has
answer was filed and let us assume that it is filed a motion for bill of particulars. When a party
allowed under the Rules, the plaintiff files a motion for motion for bill of particular the
subsequently be leave of court filed a period within which to file the answer is
supplemental complaint, ofcourse naturally you suspended. You cannot cause the defendant to
have to give defendant a due process at least to file an answer if the court granted his motion for
allow to file his answer to whatever supplement bill of particular. Reason because he will wait for
you have filed in court now what is the period that Bill of Particular in order for him to
given? 20 days. understand what he is supposed ti answer
because allegation in that complaint is vague it
Question: Rule 10 and Rule 11
is. Ambiguous so he needs clarification and that
Answer: This is about Rule on pleading... there Bill of particulars as ordered by the court will
is an inconsistency with this period. What Rule clarify what was vague or ambiguous. He will
shall we apply? The solution is to apply Rule 11 wait for that and once that bill of particular is
reason Rule 11 is the Rule exclusive for periods filed whether it involves several subject matter
provided or allowed to file responsive pleadings. clarifying the complaint for example then that
bill of particular is made part of the pleading
Let’s go to reply. Answer shall be filed within 15
pursuant to Rule 12. What happens to the bill of
calendar days.
particular? It will be part of the pleading. Take
Rejoinder? When is rejoinder allowed? Reply and note the consequences if a party ordered to file
rejoinder very simple you have to check the a bill of particular refuses or fail to file a bill of
document attached on the reply. particular, the consequence is that that portion
of his complaint may be ordered striken-off.
It starts with the answer which contains or
alleges actionable document then you can file a Now answers to the complaint______ shall be
reply. If that reply also has an actionable computed from the basis of the so called balance
document, then you can file a rejoinder. Because period Rule. You have to determine how many
there is an actionable document in the reply I days is left at the time you file your motion for
need to file a rejoinder and I’m allowed by the bill of particulars for example on the 30th daythe
Rules to do so. last day of filing the answer or 60th day if it is a
juridical foreign entity you apply the Balance
But the question is how soon am I required to file
Period Rule. What is this? Compute the
the rejoinder? You cannot check or make
remaining days provided by the Rules in your
reference in the present Rule, it is a prohibited
favor if you still have remaining days under the
pleading under the present Rule.
original period to file a responsive pleading but
So how do we solve this problem? According to you filed it on the 30th day no more so wala na
the supreme court, the Rules on parity, same wala na natira sinagad mo but in any case
pursuant to the Rules Rule12
44
You still have 5 calendar day. In any case Now do we need summons for this? Like third
meaning sinagad mo wala na talaga natira you party complaint? In interventions class is there a
still have 5 days from the date you received the need for service of summon? No!
bill of particulars or from the notice of denial of
Do you know the reason? The justification is that
the motion. Supposed meron ka pang balance
the party are already under the jurisdiction of the
example 2 days. You will still have 5 days not 7
court. You only issue summons for purposes of
days. Pag 5 days ang natitira 5 days parin.
acquiring jurisdiction over the person.
Because the Rule says it shall not be less than 5
days. Now what I’m saying is this intervenor has
voluntarily submitted themselves to the power
So now we go to cross-claim and counter-claim.
and authority of that court. All the parties that
Ho many days will a party if he wishes to file an
you are joining against are already under the
answer to counter-claim given to file his answer?
jurisdiction of a court.
Meron ba? 20 days. You may file a counterclaim
because probably it is a permissive claim more Are we done with all the periods? Its time to
so because maybe its a crossclaim then you have move on to another Rule which introduces so
20 days. many new things....
Third party complaint, etc. This is actually an Filing is the act of delivering pleadings or
original complaint in so far as stranger to the motions to the court, when you say filing that
action naturally same period as an original pertains exclusively to the court. Service upon
complaint. the upon the order upon is an act of delivering
or furnishing the adverse party of such motions
Let’s go to pleadings in intervention. What are
or pleadings, second, service may also refer to
these pleadings in so far as interventions are
furnishing partied of orders and other processes
concerned?
of the court and all interlocutory orders.
1. Complaint in intervention or
Now in so far as pleadings unahin muna natin
2. Answer in intervention.
pleadings saka na ang motion...
There are two principal pleadings in cases of
Now how many modes of filing are now allowed
interventions the person who is joining an
under this amended Rules?
action, an outsider sometimes called an inter-
loafers and join the action either as plaintiff in 1. Personal filing
intervention or if he joins the defendant then he 2. By registered mail
files an answer in intervention. 3. By accredited courier
4. By other electronic means, facsimile
If it is a complaint in intervention, do wefile an
answer to this? And what is the period provided Electronic means is not the same as facsimile.
to file an answer to this? 15 days.
Facsimile documents are not an electronic
The moment the pleading in intervention is document.
filedthe party answering it must file that
responsive pleading within a period of 15 days.
45
An electronic document once made available Rule under the memorandum of the circular
they are the equivalent of original document issued by the SC a courier is not a ... in Meralco
provided under the Rules on documentary vs DBP: sc said that filing by courier is not a
evidence. mode authorized under the Rules and your
looking up Rule 13 for the present Rule... but
Facsimile are not, they are simply considered as
only in pilot judicial region? Now as amended it
reproduction or machine copy.
is a mode allowed for filing, then you have
In the case of Insisi vs Sanyong: according to electric mode of filing, how about facsimile or
Justice Nachura facsimile document is not an any other means. Now a
electronic document because an electronic copy
What are this other electronic means? Someday
presupposes that there is no copy except the
by way of new gadgets other means may arise as
data stored.
of now there is none. Just like the text messages
Sa facsimile transmitted document merong which is sanctioned by the Rule on evidence they
original ano ginagawa dun? Para mag fax ka ano are under another branch of electronic evidence
ginagawa dun? .... the output of another fax but the SC holds them electronic ephemeral
machine is a mere photocopy because there is evidence because at that time you cannot print
the original copy just like telex. text messages.
According to Justice Nachura this are not within Right now pwede na iprint mga text and picture
the parameters of original document. Yung correlative record na there is no more distinction
Email nasan ang original document? Nasa from dat from cellphone from data from PC and
computer. Unlike, PDF, ANO MEANING NG PDF? tablet wala tayong problema.
Because we are provided by the court with a soft
Lets go to service, as oppose to filing: what are
copy in pdf form inside a usb or cd. Kase you
this modes of service? Meaning as you said upon
need an electronic signature pag tinype mo lang
furnishing the motion to adverse party, service
then email pano mo pipirmahan yun? Now class
also refers to act of sending by the court its
when you take-up your evidence wag niyo
judgement and other processes to parties in an
kalimutan ito a photocopy of an electronic
action.
document, dinownload mo then print, yung
printed form is readily readable and original, When the court releases an order, judgement,
pinaphotocopy mo! Is the photocopy original? notices, and all other processes to parties that is
Basically, if you look at the provisions of the also called service.
Rules of court that is a mere reproduction of the
What are the modes allowed under the amended
original so it is not the original but under the
Rules?
ruling evidence Rule that will be considered
original because the Rule provides that all its 1. Personal service
functional equivalent. 2. Registered mail
3. Accredited courier
Again what are the modes of filing? Personal
4. Other electronic means, facsimile, and
filing by delivering to court, registered mail,
others allowed
accredited courier (lbd, jrs) under the present
46
And those include other means sanctioned execute a judgement becuase you will not
under international tribunals execute a judgement as a matter of right if it
does not attain finality. That is the reason that is
Now facsimile is added, now I want you to turn
the very objective of Section 9. Meron bang
your attention to Section 9, Rule 38;of our
kaparehas ang Section 9?
present Rule not the amended Rule.
Apparently, the amendment carried with it the
Alright service of judgement, how do you serve
mode of service of publication and rightly so
a judgement if the summons is served by
because the winning party in the case will be at
publication? It shall also be served by
a lost if that judgement will fail to attain finality
publication. So the moment, the judgement is
simply because of failure to serve the
released, the moment at the onset jurisdiction
judgement. So don’t worry if his whereabouts
over the defendant is acquired by summons
cannot be ascertained or determined because
before the judgement attain finality it has to be
the moment the summons was served by
published how many times? Only once.
publication you have no problem.
Do we have a counter part of Section 9, Rule 38
I have that case of interpleader in Makati where
on the amendment? Because there are so many
one of the defendant cannot be found and so
instances which would allow service of summons
summons was served by publication. You know
by publication in which case there is really a
what is interpleader? Rule 62 it’s a special civil
necessity to publish the judgement for the final
action under the Rules of court and the only kind
order subsequently issued by the court for
of action which requires at least 2 defendants.
purposes of complying with finality of
You cannot have an interpleader action if there
judgement pursuant to Rule 36 in connection
is only one defendant and this is one of the
with Rule 39, what’s that? Judgement become
action which does not require a cause of action.
final and executory after lapse of period to take
Just like the next Rule, declaratory relief.
or perfect an appeal without the party taking
such appeal if the period to perfect an appeal is That is why under Rule 2 it is inaccurate to say
15 days after the lapse of 15 days from service that all action should be founded under a valid
to him of judgement or from receiving of cause of action.
judgement after which an entry of judgement
Take note of declaratory relief it says before a
could be made.
breach so if there is a breach that gives rise to
Then under Rule 39 the judgement may now be an action you cannot file a declaratory relief in
executed as a matter of right. So without the same manner the express provision under
publishing the judgement because the Section 5, Rule 63 during the pendency of the
defendant is nowhere to be found his declaratory relief and a breach occur that special
whereabout is unknown, which prompted the civil action will be converted to an ordinary civil
publication of the summons you need to publish action.
that.
The question is do we have a counter part for

that in the amendments? So that we could
47
March 6, 2020 So there are certain documents which may be

filed conventionally, that is unless otherwise
MODE OF FILING
directed by the court, the other modes of filing
There are certain pleadings of documents which that we have learned yesterday would not apply.
requires personal filings unless otherwise the It is not a valid mode of filing.
court allows or direct other mode of filing.
The next is completeness of filing or
And what are these pleadings which the rule completeness of service AND proof of filing and
specifically require a personal filing? proof of service.
GR: the following orders, pleadings, and other Notice of lis pendens. What is it? Is this a part of
documents must be served or filed personally or judicial proceedings? Do you believe that notice
by registered mail when allowed, and shall not of lis pendens is really part of judicial
be served or filed electronically (I-S-A-S) proceeding? Where is this notice of lis pendens
filed? Registry of deeds and not with the court.
(a) Initiatory pleadings and initial responsive
You are giving notice and praying that the
pleadings, such as an answer (all kinds of
registrar of deeds of the place where the
complaint for that matter);
property is registered shall cause the annotation
(b)Subpoenae, protection orders, and writs; of a pending litigation. So you will prepare of lis
pendens, observingthe form provided. What is
(c) Appendices and exhibits to motions, or other
the appearance of that notice of lis pendens.
documents that are not readily amenable to
DIto magkakapera kayo dito.
electronic scanning: and
You will have the caption of the case observing
(d)Sealed and confidential documents or
the Judicial form of the pleadings. After that, the
records.(something you cannot secure from
RD of Manila, Valenzuela, Quezon City. Sir, you
government officer without authorization such
have the honor to cause the lis pendens or
as SALN, Birth certificate, and certificate of
certificate number _ involved in the above
marriages)
caption case which covers the following
XPN: Conventional service or filing may be described property:
allowed when express permission is granted by
That’s it. Hence, NO. It is administrative because
the Court
under PD 1529, it is the duty of the RD of the
place where the property is registered to cause
an annotation of all matters affecting real
Are you aware of the crime under RPC involving
properties within his jurisdiction and this is
simulated birth have been repealed? So if
different from adverse claim.
somebody registers a child as his child although
it is not, you cannot prosecute that person. You You know what is an adverse claim? You only
are given 10 years to correct it. And if the have to execute an affidavit of adverse claim
simulation works for the benefit of the child, you counstituting your claim over the property. And
cannot anymore question it. Unless it is the child file it with the RD.
who would call it as an issue.
48
Now, both of this if annotated in the cert of title the first notice of the postmaster, whichever
cannot be extinguished, cannot be cancelled, date is earlier.
unless cancelled by the court. More so, with that
Service by accredited courier is complete upon
notice of lis pendens. Although the adverse
actual receipt by the addressee, or after at least
claim under 1529 is effective only for the period
two (2) attempts to deliver by the courier service,
of 90 days. But you cannot have it cancelled
or upon the expiration of five (5) calendar days
unless there is an order coming from a court. So
after the first attempt to deliver, whichever is
it is more of administrative whether this is a
earlier
notice of lis pendens or adverse claim.
The filing shall be complete If registered mail.

LET US GO BACK.
1) ACTUAL FILING
Let us take this filing first.
upon actual receipt by the addressee;
When is filing of pleadings deemed complete?
OR
Of course if this is personal filing, that is
complete the moment the pleading for motion is 1) CONSTRUCTIVE FILING
delivered to the clerk of court.
-after 5 calendar days from the date the
If you are talking of filing, which means that the addressee received the first notice of the
act of delivering personally the pleadings, the postmaster, whichever date is earlier
documents, the motion, is received by the clerk
-So if the adressee who refuse to claim their
of court. THE STAMP RECEIPT THEREOF
mail even if they are already notified. He knows
CONSTITUTE AS PROOF OF FILING.
it is an order he expects to be adverse so he will
But if we look at the other modes now. It is more try to defeat the service by not claiming it.
difficult na
NO, you are at a disadvantage because after the
BY the way can there be filing by ordinary mail? expiration of so many days, service is deemed
YES. In the areas where there is no registered completed. That is what you call CONSTRUCTIVE
mail. SERVICE.
So, a party or a lawyer cannot defeat the process

of the law by simply not claiming his mail. You
So Filing by mail. When is it deemed complete?
can be bound by a decision which you never
Service by ordinary mail is complete upon the read. That is constructive service
expiration of ten (10) calendar days after
mailing, unless the court otherwise provides.
You know there is a presumptive completeness
Service by registered mail is complete upon
of service? So if you file pleadings or motion by
actual receipt by the addressee, or after five (5)
mail, it is deemed complete upon the expiration
calendar days from the date he or she received
49
of 10 calendar days after mailing unless the NOW LET US GO TO PROOF OF SERVICE.
court provides otherwise.
How do you prove that your complaint, your
If the post master does not deliver that, the rule answer, your reply, or joinder etc has been filed?
makes him ___ of presumptive filing. In which What proof is necessary to prove that it is indeed
case, it is 20 days If the mailer and the court is filed.
within the same judicial region.
By its filed within the reglementary period.
If outside or different judicial region, the period
Right! Take note that in case of filing, the most
provided is 30 days.
important thing here to observe is whether it was
How about if it is by courier? filed within the reglementary period. The serious
matters affecting a party and council is when
1) actual receipt by the addressee;
that pleadings was filed because prescription
2) IF NOT RECEIVED BY THE ADDRESSEE may set in. Such as statute of limitations. If you
are filing the case, you filed it but was filed 1 day
a) after at least 2 attempts to deliver by
late, the action has already prescribed or in case
the courier service; or
of an answer and other similar pleadings, if it is
b) upon expiration of 5 calendar days filed outside the reglementary period.
after the first attempt to deliver, whichever is
earlier.
In accordance with the ruling of the SC, Where
So there is also presumptive receipt.
an answer has been filed even beyond the
reglementary period, a party can no longer be
declared in default, the is no more default
How about if electronically filed?
available to the plaintiff.
1)at the time of the electronic transmission of
For example, the answer was filed today, which
the document,
is 1 day or 5 days late. The plaintiff, learning
or about the belated filing, file a motion declaring
the respondent a motion for default. The court
2)when available, at the time that the electronic
granted the motion, is the action of the court
notification of service of the document is sent.
correct?
NOTE: Electronic service is not effective or
NO SIR. There has been an answered filed,
complete if the party serving the document
although belatedly. And under these
learns that it did not reach the addressee or
circumstances, there can be no more declaration
person to be served.
of default. The principle according to the SC,
So, the moment you transmit it, that is the time default is frowned upon.
it is deemed filed. But look at the proof required
later on for that.
Now let us go filing by mail, what are the proof
required.
50
The filing of a pleading or any other court The official receipt issued by the courier and that
submission shall be proved by its existence in document containing the tracking number.
the record of the case.
You know pag LBC, at the right left portion of the
(a) If the pleading or any other court submission document, there is a tracking number and
is not in the record, but is claimed to have been below, (because this is electronically generated
filed personally, document- there are entries there where it was
delivered and whether it was received, the
the filing shall be proven by the written or
person who received)
stamped acknowledgment of its filing by the
clerk of court on a copy of the pleading or court How about electronic filing?
submission;
(d) If the pleading or any other court submission
(b) If the pleading or any other court submission was filed by electronic mail, the same shall be
was filed by registered mail, the filing shall be proven by an affidavit of electronic filing of the
proven by the registry receipt and by the filing party accompanied by a paper copy of the
affidavit of the person who mailed it, containing pleading or otherdocument transmitted or a
a full statement of the date and place of deposit written or stamped acknowledgment of its filing
of the mail in the post office in a sealed envelope by the clerk of court. If the paper copy sent by
addressed to the court, with postage fully electronic mail was filed by registered mail,
prepaid, and with instructions to the postmaster paragraph (b) of this Section applies.
to return the mail to the sender after ten (10)
When you send an email, is there a confirmation
calendar days if not delivered.
of receipt of the document? Yes. Nakalagay sa
Correct!. Class! That registry receipt is the sent. Pag di nag send, demon mailer. There is a
material evidence as proof of receipt As proof of thatthing by that service provider whether it is
filing which enjoys the presumption of regularity yahoo, gmail, or etc. that confirmation will
but in addition, the person who actually made provide the evidence together with pleading
the pleading must execute affidavit. which was the subject of that electronic filing.
. Do you need to show the registry receipt if you

have the registry return card? NO NEED.
Now class, under the present rule, especially the
IMMATERIAL
SC, because the SC requires both hard copy and
How about if it is by courier? soft copy, the SC has provided an exclusive email
address with exclusive domain to the SC. Under
(c) If the pleading or any other court submission
this website www.judiciary.com.ph
was filed through an accredited courier service,
the filing shall be proven by an affidavit of
service of the person who brought the pleading
If the email is received, a confirmation shall be
or other document to the service provider,
received by the sender.
together with the courier's official receipt and
document tracking number. Q: is text allowed?
51
Ans: No. Ans: look at the certain circumstances:
Always the soft required by the SC is in the PDF 1. Was the addressee remains in his given
format/ document. address?
Proof of Service If he transferred, did he provide the court and

the other party a notice of change of address; or
Section 17. Proof of service. –— Proof of
if still occupying the same place, but there was
personal service shall consist of a written
only failure to claim the mail despite notice
admission of the party served, or the official
provided by the post office.
return of the server, or the affidavit of the party
serving, containing a statement of the date, In certain areas, unless the addressee is known
place, and manner of service. If the service is by the postman, the person will only be given a
made by: notice that parcels for you are made in
depositories. There may first up to third notice.
(a) Ordinary mail. – Proof shall consist of an
If the parcel is unclaimed after 3 rd notice, the
affidavit of the person mailing stating the facts
post office will deliver it back to the sender.
showing compliance with Section 7 of this Rule.
The presumption of a valid service is put to test
(b) Registered mail. – Proof shall be made by the
with respect to ordinary matter.
affidavit mentioned above and the registry
receipt issued by the mailing office. The registry Q: If it is delivered back for reason of non-claim
return card shall be filed immediately upon its by the addressee, what is the effect? Assuming
receipt by the sender, or in lieu thereof, the that there is no change of address by the party.
unclaimed letter together with the certified or
Ans:
sworn copy of the notice given by the postmaster
to the addressee. Substituted service.
(c) Accredited courier service. – Proof shall be Section 8. Substituted service. – If service of
made by an affidavit of service executed by the pleadings, motions, notices, resolutions, orders
person who brought the pleading or paper to the and other papers cannot be made under the two
service provider, together with the courier’s preceding sections, the office and place of
official receipt or document tracking number. residence of the party or his or her counsel being
unknown, service may be made by delivering the
(d) Electronic mail, facsimile, or other
copy to the clerk of court, with proof of failure
authorized electronic means of transmission. –
of both personal service and service by mail. The
Proof shall be made by an affidavit of service
service is complete at the time of such delivery.
executed by the person who sentthe e-mail,
facsimile, or other electronic transmission, Therefore, the remedy is file it with the clerk of
together with a printed proof of transmittal. court. Providing the required documents.
Q: suppose the pleadings returned undelivered, If the court and the adverse party were not by a
what is the effect to the filer/ server/ the person notice of change of address, naturally there
who served the pleading or motion? could be no valid service.
52
Q: if it arises only to non- claim or refusal to Ans:

claim in the post office, the rule says that after
For the purposes of determining whether the
two notices, what happens? Is there a
service is complete.
presumption of complete service?
Under rule 15, if the motion is litigious one,
Ans: Section 17. Proof of service. –— Proof of
proof of service if necessary, the court shall not
personal service shall consist of a written
hear the motion unless there is a service to the
admission of the party served, or the official
adverse party. Thus, the court may refuse to
return of the server, or the affidavit of the party
hear, if proof of service is not provided. But if not
serving, containing a statement of the date,
litigious motions, a service is not required.
place, and manner of service. If the service is
made by: Rule 14
(a) Ordinary mail. – Proof shall consist of an Summons

affidavit of the person mailing stating the facts
Q: what is the nature of the summons?
showing compliance with Section 7 of this Rule.
Ans:
(b) Registered mail. – Proof shall be made by the
affidavit mentioned above and the registry It is a compulsory judicial process, which could
receipt issued by the mailing office. The registry direct a party to file a responsive pleading to the
return card shall be filed immediately upon its complaint within a specified period. Otherwise,
receipt by the sender, or in lieu thereof, the a judgement by default may be rendered against
unclaimed letter together with the certified or him.
sworn copy of the notice given by the postmaster
Q: what is sacred/ important about summons?
to the addressee.
Ans:
(c) Accredited courier service. – Proof shall be
made by an affidavit of service executed by the Through it, the court will acquire jurisdiction
person who brought the pleading or paper to the over a party.
service provider, together with the courier’s
Note: Rule 14 is exclusive to the defendant.
official receipt or document tracking number.
There was this case, that which prompted the SC
(d) Electronic mail, facsimile, or other
to issue circular mandating branch clerk of court
authorized electronic means of transmission. –
to issue summons, 5 days before filing reply.
Proof shall be made by an affidavit of service
executed by the person who sentthe e-mail, *in the present rule, reply is the last pleading
facsimile, or other electronic transmission, that must be filed.
together with a printed proof of transmittal.
In the case was about the long period by which
If sent through electronic means, printed prood the case was pending in court because no
of service is necessary. summons was issued and for that the court
dismissed the complaint.
Q: why?
Q: can the court do that?
53
Ans: 3rd party defendant
Sec. rule 17 Defendant intervener
Section 3. Dismissal due to fault of plaintiff. — Q: is cross defendant included?

If, for no justifiable cause, the plaintiff fails to
A cross defendant is actually a defendant among
appear on the date of the presentation of his or
the defendants
her evidence in chief on the complaint, or to
prosecute his or her action for an unreasonable
The court only acquires jurisdiction the moment
length of time, or to comply with these Rules or
all these defendants file an answer
any order of the court, the complaint may be
dismissed upon motion of the defendant or upon
For example X sued X and W husband and wife.
the court's own motion, without prejudice to the
The husband has a cross claim against his wife.
right of the defendant to prosecute his or her
For whatever reason we do not know but for per
counterclaim in the same or in a separate action.
weather that cross cling it would the issuance of
This dismissal shall have the effect of an
service of summons no need because it is the
adjudication upon the merits, unless otherwise
jurisdiction of the court the moment the answer
declared by the court.
or they voluntarily submitted to the jurisdiction
When the case reached the SC, the court of the court.
promulgated the said memorandum, which
requires all branch clerk of court to issue Principally you only have to look the principal
summons as soon as the last responsive defendant, iii iv v defendant
pleading is filed within the period of 5 days.
The moment these parties are served with
Because before there was no mandatory
summons the court now acquires jurisdiction
requirement to issue summons. In the said case,
over the person
the SC reversed the decision. Just like in Romelyn
case, where the SC the provided a policy
How many modes of service are now provided in
guidelines for drug cases.
the amended rules insofar as the summons is
At present, under the amendment rules, it is now concerned?
the duty of the branch clerk of court to issue the
summons within the period of five days after the Before we have personal service section 6,
last pleading is filed. And it is the job of the substituted service section 7, electronic service
branch clerk of court what last pleading was section 12, service by publication 14,
filed. extraterritorial service 15, and section 16
(resident defendant who is temporarily outside
Q: who are the parties who must be served of
the PH)
summons?
Ans:
Defendant
54
Now, under these amendments there are more and copy of that they also be served to the
modes of service of summons: defendant
- sec 5 personal service
- sec 6 substitude service If you're talking about execution of a provisional
- dervice by publication remedy at the very least a contemporaenous
- service by mail service summons and the writ
- electronic
- by facsimile transmission Unless of course if you're talking of unknown
defendants or if defendant's whereabouts are
Service in person/personal service (sec 5) unknown
When you serve to the defendant personally and
he refuses it, you tender the summons and leave By serving personally the summons up on the
it in his presence because he refuses to receive defending party or if he refuses by tendering it
because that sheriff must secure the signature to him a copy to him in his presence
of the defendant if personal service is
necessary/practicable, available, possible. He If he resists leaving the premises, will he incur
shall acknowledge the receipt of summons and criminal liability? What is the crime if you refuse
copy of the complaint to leave upon the order of the owners of the
premises? Trespassing
If there is provisional remedy assuming that the
complaint was filed praying for a provisional Yung kay president marcos sa hawaii there was
remedy like attachment a personal service of summons to him they were
inside of the compound of that house in hawaii
Take note that provisional remedies except (case of manotoc). This is about the secretary of
preliminary injunction that application for foreign affairs. Ayaw lumabas ng mag-asawa,
preliminary injunction is urgent, which must be the caretaker likewise did not entertain the
heard can be granted ex parte, a writ of consular official when he serve the summons.
preliminary injunction may be issued ex parte You know what the consular did tinapon sa
bakod yung service of summons. Issue was
Ex parte means without the presence of the whether or not there was a valid service of
adverse party and the court will hear the summons. Yes there was a valid service of
application for preliminary attachment without summons.
notice and participation of the defendant
So there will be a personal service even if he
If the court grants it and subsequently the refuses to receive. This has to be stated in details
requirement because he will be required to post by the sheriff in his return
a bond will subsequently be issued by the court Do you know what is return? They call this
sheriff's return or process service return. It is
So together with the summons, complaint, the actually a report submitted officer who serves
order granting the writ, and the writ of execution the summons detailing on how service of
55
summons was made to up if serve served the of the defendant of the defendant but every time
reason why it was not served he goes there, the security guard at the gate
would tell him "walang tao diyan, may pasabi si
Take note that the service of summons can be ma'am na wag kayo patuloyin kasi walang tao
affected by a private individual at the instance of diyan". Three attempts on different dates when
the plaintiff provided that this private individual to the subdivision with the same answer. Fed up,
has been duly commissioned by the court the summons to the security guard. After that,
the plaintiff filed motion to declare defendant in
What is this commission? It is simply the default the court granted. Eventually, the
authority issued by the court to a person to serve defendant, through his counsel, was
judicial processes or any act authorized by the questionning the lack of jurisdiction over this
court person that there was an invalid service by way
of substituted service of summons cause it was
Primarily it is the duty of the sheriff. In default of served up on the security guards. The present
the sheriff, the process server of the court. In rule and under the amendment, substituted
default of court personnel, any other person who service can be effected either in the residence or
the court may competition for that purpose. office of the defendant. If it is in his residence,
Without that commission and service was made true a person residing therein of age and
by anyone who is not a court personnel, the discretion. If the person who receive that
service is invalid summons is a mere visitor, there is an invalid
substituted service.
Substituted service
For example, sheriff goes there death of the
Substituted service can only be made where the defendant and latter at that time has his nephew
sheriff had already filed a return who is a lawyer who is vacationing from New
York. It was this nephew who entertained the
Why should he file a return because it was not sheriff and examined the summons. He received
served personally if you did not file a return he it. Valid? It is invalid. He is not a resident therein
ko summons through substituted service that which is required by the rules, he is just a visitor.
there are several attempts, three attempts in two It did not comply with the rules
different occasions.
Supposed it was the driver who is a high school
The decision of the supreme court in the case of graduate. 60 years old. Valid? It depends never
Miralles is now incorporated under this is a stay in driver, then he is a resident. Or any
substituted service together with the doctrine in person in the office who is of sufficient age and
Salandane. discretion. Primarily with duties to receive
communications. Otherwise, kung ang
In Miralles, these these were the facts: This tumanggap ay janitor, ibang usapan yan.
woman was sued and she was a swindler with a
pending case. Where she live is a subdivision. Eventually the case reachef the supreme court
The sheriff serving the summons to the address because the motion for reconsideration which is
56
actually a motion to lif the order of the court was corporation, or its chief security officer in charge
denied. The supreme court ruled that the service of the community or the building where the
of summons with defendant in Miralles case was defendant may be found; and
valid because the failure to serve the summons
personally was due to the defendant by giving (d) By sending an electronic mail to the
instruction to refuse the sheriff to her residence. defendant’s electronic mail address, only if
allowed by the court.
Sa Salandana, ibang usapan na yan. It was the
refusal of the brother to receive the summons. It is the court that determines it. Whether there
That brother refused to give the address of the is propriety in serving summons electronically.
defendant so it was served a upon brother and Remember rule 13 earlier? Conventional service.
eventually the defendant was declared in default. So this can be done in summons as well, but only
It was this brother who received the summons, the court can determine its propriety. Whether
when his brother was declared in default, was its propriety or impropriety.
the one who filed a motion for reconsideration
and to lift the order of default. First of all he is [Sec 6-8, Rule 14]
not a real party in interest. But that was not
So we have here persons residing in the
important in so far as the rule on summons is
residential area of the defendant, at least
concerned. What is important is that the
eighteen (18) years of age and of sufficient
supreme court that there was a valid substituted
discretion residing therein.
because that person is residing therein, who
even refuses to provide the sheriff the address
In the office? through a person who is in charge,
of the defendant.
who customarily, usually, normally receives the
communication or correspondences for the
Substituted service (sec 6)
defendant.
How many modes of service can summons be

Example. The business is warehousing,
made? 4.
warehouseman accepts the letter. Valid? Yes.
a. By leaving copies
Apart from being the warehouseman,
warehouseman also receives communication
(b) By leaving copies of the summons at the
with defendant. He also money. The secretary,
defendant's office or regular place of business
all the more, but not limited to all other persons
with some competent person in charge thereof.
who may be similarly situated to the description.
A competent person includes, but is not limited
to, one who customarily receives
Meaning, they also receive communication.
correspondences for the defendant;
Janitor is a different story... Messenger.
Messenger in a law office? No. It's not his
(c) By leaving copies of the summons, if refused
principal duty and function. Now, building
entry upon making his or her authority and
administrator.
purpose known, with any of the officers of the
homeowners’ association or condominium
57
You have the Condominium building. Aside from corporation, de jure corporation. You'll tackle
building administrator, you have the chief that later. Is there de jure corporation in the
security or any officer. If it is a subdivision, chief code? None provided. Because what is provided
secretary and same staff of the building as well in civil code are defective contracts. Same is true
as the officer of the home owners. Does under corporation code.
Condominium have home owner association?
Yes. Association dues for common areas. <-- Whether it is under BP 68 or RA 11232 because
There is huge money here. only defective corporations are there and there
are - de facto corporation and corporation by
Owners association, security officers building estoppel.
and home owners association - all of whom are
charged with that duty and are responsible to Difference?
receive by way of substituted service.
De facto Corporation - A corporation born out of
How about by mail? Can you serve summons by a bone fide-ing attempt to incorporate and in
mail? None stated. fact registered it! It is a registered corporation.
But unless it is revoked or cancelled through a
How about service of publication? [March 5] quo warranto action, it continues to existence as
There are only two instances available to a party a corporation. Probably, it was issued a
where service by publication could be allowed: certificate of registration through oversight.
1. Extraterritorial service - should be predicated ie. Corporate that was a minor or before the
by leave of court. required paid up capital was not complied.
-> File a motion to allow service of summons by XPN. in cases of increase authorized capital
publication. Whether it is extraterritorial or stock which has to comply with the 25%
within our territorial jurisdiction, it must be subscription and 25% of that subscribed capital
predicated upon a prior leave of court. must be made up. For purposes of corporation
then there is no more requirement, moreso if it's
2. Service to non-registered juridical entity. a one person corporation pursuant to section 10
pursuant sec 115-132.
-> Under the corporation code (RA 11232), it
carried the different kinds of corporations. Corporation by estoppel - These are actually
Among these would be de facto corporation and persons who represent themselves as a
corporation by estoppel. These are the two basic corporation or a juridical entity, but not formally
classification as to their legality. incorporated much less registered with the
Securities and Exchanged commission (SEC).
Of course there is also classification of Representing themselves to the public that they
corporation whether it is stocked, non-stocked, are indeed carrying business under a corporate
religious corporation, special (educational), name. So the law holds them liable as a
corporation solved, foreign corporation, closed corporation. They are now estopped.
58
They are Association, that they represent with the end in view of dividing this profit among
themselves as juridical entity. So how should themselves or between themselves."
summons be served?
-> conduct business
Section 7, Rule 14. Service upon entity without
juridical personality. — When persons associated And partnership is not required to be registered
in an entity without juridical personality are sued (1) unless capitalization is 3,000 or more or (2)
under the name by which they are generally or unless it involves real property by way of
commonly known, service may be effected upon contribution. It need not be registered and there
all the defendants by serving upon any one of shall be at that very moment a partnership duly
them, [...] constituted between or among the parties.
-> If they are 5-10-15. Any. Under law of partnership, there is also
partnership by estoppel as well as partner by
[..] or upon the person in charge of the office or estoppel.
place of business maintained in such name. But
such service shall not bind individually any In such cases, if it is a supposed juridical entity
person whose connection with the entity has, but which has no legal personality in
upon due notice, been severed before the action contemplation of law, such as it is not registered
was filed. although required to be registered, then any
service of summons to any of these persons
If he has at the time of the filing of the action be composing such supposed juridical entity is
associated himself with that group of person and sufficient to bind all persons composing this
he was not served with the summons, that supposed unregistered juridical entity, except
service of summons to anyone of those persons only to person who have already dissociated
representing this associations as a corporation himself from that association at the time the
will not be valid. He is not bound by that. complaint was filed.
When you talk about juridical entity in the Of course, it is required under the laws that as
Philippines, we only have two. These are either long as their names if some of them are not yet
corporation or partnership. known, the complaint can be summarily
amended to include their proper names as
How about partnership? Partnership, they are not parties of the action. But, you can sue them
registered in SEC. under the law of Partnership, under the name that they are using -
the law of partnership of composed of 100 Corporation X, even if not registered/not
articles. registered even when it is required to be
registered.
First article defines what partnership is - "when
two or more persons agree to contribute money, Husband & wife can conduct business
property or services, provided that the intention separately, individually and jointly, even without
of this contribution or agreement is for profit consent of the other spouse unlike before. The
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only problem later on is to determine whether Do not forget to write: valid service or the
the property devolves common or in-common summons was validly served.
could be held liable? If there is no prenuptial
agreement, the property regime between -> That each of them individually must be
husband and wife? Absolute Community of validly served with summons.
Property. "What is yours is mine. What is mine is
mine."
Considering the property regime, the only

problem which later on must be resolved and
highly to be determined by the court whether it's
proper or improper in an action is: whether to
hold the property liable. Even if the wife has
nothing to do with the suit.
If husband and wife are sued, would a service of

summons to any one of them be sufficient
provide the other spouse is absent? Back then,
yes. Now? NO.Under the present rule, each of
them must be served with that summons.
Meaning, if one was not duly served with that
summon, no jurisdiction can be acquired over
that spouse.
Whatever that action is UNLESS the husband and

wife are engaged in a partnership. Husband and
wife can engage in partnership but limited such
as property partnership, not universal
partnership because this means they are putting
all their assets and properties. But they can
engage in other way of partnership. They
(Husband and wife) can also be partners in
profession.
For purposes for actions brought against

husband and wife, the rule explicitly provides
that the each of them must be served validly
(because there are invalid service). Don't forget
to write valid service.
*Perfect answer?
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April 21, 2020 mediated back to the court of origin for the
purposes of JDR.
I. Purpose
RULE 18 PRE-TRIAL
Consistent with the recent jurisprudence, pre-
As a rule pre-trial comes after the last pleading
trial is a mechanism in which the courts try their
has been filed.
best to cut short the proceedings for trial and to
There is no requirement for the party plaintiff to abbreviate the long winding litigation, precisely
file a motion to seek for a petition for a pretrial because the subject matter of pre-trial is to
because it is now the duty of the court to secure amicable settlement or compromise, if
automatically set not only for the case for a pre- compromise takes place then there is nothing
trial but as well as the date of mediation and JDR. more to litigate, the actions ends there and the
judgement during compromise is immediately
When the court issues this notice of pre-trial,
executory, cannot be appealed.
pursuant to Rule 18 under Section 3, what
should this notice contain or include? If there is no compromise, the another purpose
is to secure concessions and counter-
Notice of the Date of Pre-trial
concessions, that means stipulation of facts or
Date of the Court-annexed Mediation admissions, and counter-admissions between
the parties.
Date set for the Judicial Dispute Resolution
When admissions are made by the parties during
This means that in anticipation of proceedings
pre-trial that means necessarily remove certain
under different set of Rules as before under this
issues for trial, there is no need to try facts and
amendment, parties must be made aware of the
issues that had been admitted or stipulated
three stages by which they have to undergo as a
upon by the parties, that will lessen or minimize
consequence of pre-trial.
issues and facts which needs to be determined
Before, when a case is set for pre-trial, the pre- by presentation of evidence.
trial is not conducted by the court on that day
In order to shorten the proceedings of cases.
what the court would do is to refer the case for
for mediation. It will first dispense with the pre- II. Pre-trial Brief (Sec. 6 Rule 18)
trial and instead direct the parties to proceed to
The same as the old rule, before pre-trial could
mediation center for purposes of mandatory
be set by the court, a notice should be sent to
mediation.
the parties, fixing the date of pre-trial, there is
As you know in all civil actions mediation is a requirement for the parties to submit the
mandatory but not in special proceedings and pretrial brief.
criminal actions. Not all Criminal cases are
Pre-trial brief:
subject to mediation.
It is the summary of what is needed and
And if Mediation FAILS it will have to undergo
required, that are certain subject matters
JUDICIAL DISPUTE RESOLUTION. The case will be
required for purposes of preparing and
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submitting a pre-trial brief, that would help both (May conflict sa period sa submission ng Judicial
the parties and the court as well to determine affidavit and Pre-trial brief, because Judicial
what are supposedly to be discussed during the Affidavit should be submitted 5 days before the
pre-trial. scheduled Pre-trialand that Pre-trial Brief should
attach all the evidence which that witness
Effects of failure to appear before the pre-trial:
supposedly have testified correspondingly
(sec. 5 Rule 18)
marked. So now this is not much a serious
Nature and purpose of Pre-trial (Sec.2 Rule 18): problem, it only means that the markings can be
corrected subsequently during the pre-trial, in
As amended starting from letter (G) : new subject
fact, the remarking for purposes of correcting
matters have been introduced and it— tells the
this marking shall be done prior to the formal
parties what they should do and prepare during
presentation of evidence.
pre-trial.
2. Examine and make comparisons of the
1. Mark their respective evidence if not yet
adverse parties’ evidence vis-a-vis the copies to
marked in the Judicial affidavits of their
be marked
witnesses (emphasis)
Parties shall have the opportunity to examine
Judicial affidavit—substitute the direct testimony
each ones evidences during that stage and to
of a witness and it has to be filed in court 5 days
compare it, because the original document can
prior to pre-trial, although some judges allow
be substituted by a mere photocopy, can be
the submission of the Judicial Affidavit to be
substituted by a non-original document, so the
submitted 5 days prior the witness is to be
comparison that is being solved under this
presented and to testify in court.
provision is for the purposes of deterring the
But the rule is very clear that this document must copies ought to be marked is a faithful
be filed in court copy furnished all parties, 5 days reproduction of the original.
before thescheduled pre-trial and if there are
You don’t want to submit the original during the
other documents which are testified to by the
pre-trial then present a photocopy, have the
witness executing the judicial affidavit, these
adverse party examine it and determine whether
documents must also be attached thereto with
this is a faithful reproduction of the original and
the corresponding markings.
when he admits that it is, then that photocopy
That is why under this provision it is not could substitute the original and therefore it
necessary to mark such evidence if it was already could be made admissible as evidence.
marked in the Judicial Affidavit.
3. Manifest for the record stipulations regarding
SEC. 6 in connection with this provision. Letter the faithfulness of the reproductions and the
E: The documents or other object evidence to be genuineness and due execution of the adverse
marked, stating the purpose thereof. parties’ evidence.
If you look at the first paragraph of Sec. 6, what SEC. 3 mirrors SEC.2 but with addition of certain
is the period for the filing of the pre-trial brief? admissions that it is duly executed.
3 calendar days before the date of the pre-trial.
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Will the adverse party admit that the document officer and then the nature of their testimony
is the faithful reproduction of the original…oh (ano ba itetestify nya)
yes we admit your honor… will the adverse party,
This is also in line with the Judicial Affidavit Rule,
also admit the due execution… that’s different,
requiring that all testimonial evidence that
due execution of the document is different, so at
means that the testimonial evidence intends
that stage, at that very moment the parties could
topresent during the trial must all be reduced to
be required to stipulate whether he admits or
Judicial Affidavits and submitted to the court
deny that is photocopy of this document has
copy furnished the parties submitted 5 days
been duly executed.
prior to the scheduled pre-trial and if the Judicial
While you admit that this document is a faithful Affidavit of a certain witness is not presented or
reproduction of the original, you can deny that it not presented on time that witness is deemed to
was duly executed because it have waived or the parties have deemed to have
waived and they will not be allowed to present
Might have been taken with certain irregularities.
that witness anymore during the pre-trial and
But the document was not executed during the
the only exception provided therein is where the
time that it was executed the person was in lucid
parties will present these witness subsequently
mental capacity.
would provide a justifiable reason why this
4. Reserve evidence not available at the pre-trial Judicial affidavit was not provided for as required
but only in the following manner: by the rules unless you can show a justifiable
reason for non-submission of such, if not then
1) For testimonial evidence, by giving the
you are barred in presenting that witness
name or position and the nature of the
anymore.
testimony of the proposed witness
In case of the late filing of the Judicial Affidavit,
2) For documentary evidence and other
the rule provide that the parties may be allowed
object evidence, by giving a particular
if there are justifiable reasons subject to a fine
description of the evidence.
they have to pay that the court may have to
No Reservation shall be allowed if not made in impose no more than 5K.
the manner described above.
#2 for this reservation to be allowed is with
Parties may be allowed to reserve the respect to DOCUMENTARY EVIDENCE AND
presentation, of course it will start with the OBJECT EVIDENCE, although the rules says
markings, of certain evidence which during the documentary and other objects evidence.
pretrial or at the time the pre-trial was being
Example:The gun used in perpetuating thecrime
conducted are not available to parties but only
be presented and it must be presented but at the
under certain conditions.
moment the custodian of the gun who has
Testimonial Evidence (Witness): you have to custody of the gun is unavailable and cannot
provide the court their names, their position, produce the gun, so you made a reservation.
whether they are a government employee or (one must describe it)
63
Sec.2 (h) : such other matters as may aid in the even prior to pre-trial date, so why are we
prompt disposition of the action. deemed waived to present our evidence? (eh
Andean na nga yan)…
This is exactly the objective of the Pre-trial,
speedy and prompt disposition of the case.What The question here is that even though the
are these subject matters? photocopies are already filed and attached in the
Judicial Affidavit but it can only be considered if
The failure without just cause of a party and
you have brought the original.
counsel of a party and counsel to appear during
pre-trial——- The ORIGINAL is needed because we will have to
compare as what is provided above, there must
If we are going to look at Sec.5 Rule 18, Failure
be comparison between the judicial affidavits
to appear during pre-trial also, but this is
attached in the Judicial Affidavits in order to
different, the sanction is different.
ascertain that these photocopies attached are
The sanction under this provision, or when you faithful reproduction of the original so we could
fail to appear during pre-trial there is waiver to agree.
the objection ( you can no longer object to the
So, while it is true that all these documents are
evidence) such as the faithfulness of the
already attached to your judicial affidavits there
reproduction of the photocopy of that document
is no way by which we could compare it with
you will no longer be
original so that we could stipulate whether this
allowed, it is as if admitted that the photocopy is documents attached thereto are faithful
exactly the same as the original and that it is the reproduction.
faithful reproduction.
The branch clerk of court shall prepare the
Genuineness and Due Execution, that means minutes. (hayaan na daw to…hehehe)
that this document is duly executed by administrative function yan ng branch clerk of
capacitated persons without any traces of causes court.
that vitiates consents it is not tainted with vices
Preliminary conference:
that vitiates free will.
It is a rule promulgated by the by the SC which
Failure without just cause of a party and/or
has been in effect since 2004. Consonant with to
counsel to bring the evidence required shall be
all branch clerks of court in the conduct of the
deemed a waiver of the presentation of much
preliminary conference.
evidence.
It is a hearing the conducted before the branch
If all the evidence enumerated in your pre-trial
clerk of court the purpose of which is for the
brief were not able to be brought during the pre-
pre-markings of all exhibits by the parties as
trial …. There is a waiver and waiver is equivalent
well as the identification of their witnesses in
to estoppel
fact it includes the determination of whether or
However..these evidences are already attached not the witness that are suppose to be presented
in the judicial affidavits and our judicial affidavits in the course of the trial either as an expert or
had already been duly filed before this court ordinary witness.
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In light of the new amendments..does this mean settlement (2) the power to make stipulations,
that this circular regarding the preliminary admissions and other subject matters.While the
conference has already been repealed? —-sir appearance in the pre-trial is mandatory, the
doesn’t know pa daw rule now provides for certain justifiable reasons
or causes by which the absence of the party can
But Dean Feble’s opinion the circular is not yet
be excused.
repealed. Since there is no repealing clause with
respect to this. There is no conflict with the In the following instances, it can be excused:
present amendment because the Preliminary
 Acts of God—(calamities, hurricanes)
conference is separate and distinct from pre-
 Force Majeure-Caused by human beings
trial which is conducted before the judge.
(Civil War)
Effect of non-appearance:  Duly substantiated physical disability—
must be accompanied by proof of such
Non-appearance at any of the foregoing settings
physical disability.
shall be deemed as non-appearance at the pre-
trial and shall merit the same sanctions under Sec. 5:
Sec. 5 hereof.
 Effects of failure:
This means that if you fail to appear during the  Plaintiff—dismissed
mediation and JDR it is equivalent as non-
Can the judge Moto proprio dismiss the
appearance during pre-trial, so all the effects
complaint if the plaintiff fails to appear either in
from letters (g) and the sanctions after letter (h)
person or by representative during pre-trial? Will
will apply to you.
the court be committing error in dismissing the
You will be subjected to the sanctions provided case Moto propriety?
under Section 2 particularly letter (g) and the last
It must be dismissed under Section 3 Rule 17 not
three paragraphs after letter H.
because of the unreasonable length of time but
Appearance of the Parties are Mandatory during the failure to comply with the rules.
Pre-trial because failure to appear will result to
Sec. 4: xxx The non-appearance of a party and
either dismissal of the action if it is the plaintiff
counsel may be excused only for acts of God,
who fails to appear and if the defendant fails to
force majure or duly substantiated physical
appear it will also rise presentation of evidence
inability.
by the plaintiff ex parte.
Both must be absent—and counsel—-for the
The Right to be Represented during pre-trial
court to dismiss the complaint
isretained provided that the representative of a
party to an action who appears for him during If only one is absent can the court dismiss? It
the pre-trial is clothed with an authority, cannot dismiss
Special Power of Attorney and particularly that Only the Failure of the Plaintiff AND Counsel can
authority shall empower the representative the the court dismiss the case
(1) to enter into a compromise or an amicable
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What it purports to tell us is that there must be enumerates certain subject matters
concurrence of absence in order for the court to which has to be stated in that order.
dismiss the case—-Both the plaintiff and his  Minutes
counsel must me absent in order for the court to  Facts
dismiss the case.  Issues to be tried
 Law/ jurisprudence
Before there cannot be a dismissal of the
 Evidence marked
complaint if the plaintiff is present but the
 Flow chart—different stages of trial
counsel is absent, there could be sanction that
(branch clerk of court)
the court may impose against the counsel for
 Statement of the One day witness
being absent during the pre-trial although his
examination rule
client is present and if ever the counsel is
 Statement that the court may render a
present and the plaintiff is present and the
Summary Judgement.
counsel has no SPA the court may dismiss the
case.
The Dismissal IN FAILURE to appear is with

PREJUDICE, unless the court declares in that
Rule 15:
order that the dismissal is without prejudice.
Prohibited motion
If the Defendant and Counsel is the one absent
during the pre-trial: Motion for summary judgement is not included
in the prohibited proceedings.
That authorizes the presentation of the evidence
by the plaintiff ex parte from10 calendar days of Under Rule 35 Summary Judgement where there
the termination of the pre-trial. exist no genuine issues parties can still file a
motion for the court to render its summary
Sec. 6: Pre-Trial Brief
judgement.
What is new in this section are as follows:
But here in Rule 18 Pre-trial, this mean that
 Statement of the main factual and legal whether with or without the parties submitted
issues. Before what is required only is to the case for Summary Judgement during the pre-
state the possible issues to be tried and trial, the court may render the judgement
decided by the court now it shall include summarily. If it finds therein that there is
factual and legal issues. propriety in rendering its summary judgement
 Research work..applicable law without even a motion filed by any of the parties
 Pre-trial order is mandatory to be issued then the court may render summary judgement.
by the court simply becauseit will serve
Summary judgement (Rule 35)
as the rulesin the conduct of the trial, it
shall serve as the rules and a guide for When a Motion is filed only for the rendition if
the parties and the court to observe summary judgement this has to be heard and it
during the trial. Specifically it now must be set for hearing not less than 10 days
this is an exception to the three-day trial.
66
This has to be heard because there might be which the scheduled trial was postponed shall be
other evidences that will be presented by way of deducted from the allotted schedule to a party.
affidavits or deposition for purposes of
Waiver on the part of the absent party, to
rendering a summary judgement under Rule 35.
interpose objection and conduct cross-
This is now should be in line with Sec. 5 Rule 15 examination.
#11 Litigated Motion: Motion for summary
Court-annexed mediation:
judgement should still be heard and the rule of
notice provided therein stands. Let us go to the Conducted after pre-trial conference should a
amendment under Rule 35 Sec. 3 and Sec. 4, the civil case be referred to mediation center for
period is 5 days, but the problem we have to be purposes of complying the court annexed
confronted with is that it must always be subject mediation and it shall not exceed 30 days
with notice and hearing because it is a litigated without further extension.
motion pursuant to sec. 5 Rule 15 #11.
If the court-annexed mediation fails, the
mediation center will immediately refer back the
case to the court and that same court where the
Judicial Affidavits it has to be incorporated with
case is pending, the judge therein will conduct
the pre-trial order the direct testimony by way
JDR. For the same purpose as that in mediation,
of judicial affidavits.
the judge where this case was originally pending
After the identification of the Judicial Affidavits, will conduct this JDR.
cross -examination shall proceed:
Under the amended rule only when the Judge to
If you look at letter(f) there will be a specific which the case was originally raffled he is
dates and this is for the purpose of continuous convinced that settlement is still possible, the
trial which is in advance schedule. That pre-trial case may be referred to another judge and that
order itself the court shall set all the dates for JDR is not already mandatory in all cases.
the examination and for purposely for cross-
Why? Because the Rule provides, it is only when
examination of these witnesses because direct
the Judge provides in his opinion there is still a
examinations are dispensed with on account of
possibility to come-up with compromise
the submission of judicial affidavit which
between the parties, should JDR be conducted
substitutes their direct testimony. It shall also
and the Judge where the case is pending will not
state postponement of the parties witness.
conduct the JDR, it must be a different Judge, it
If you failed to appear consonant to the will be referred to another court for the judicial
scheduled trial dates wherein the witnesses are dispute resolution, another branch of the RTC or
to be examined in court in line with paragraph for the JDR will be referred to a clerk of court and
(f) Sec. 7, what is the sanctions if it is not raffle the case. The JDR should be conducted not
justified more than 15 days from referral. If still JDR fails
it will be transmitted back to the judge where the
Sanctions: the witness will not be barred if the
case was pending in order to proceed to trial.
postponement is unjustified but the period in
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Confidentiality: April 22, 2020
All proceedings during the court annexed Rule 19- Intervention

mediation and JDR shall be confidential.
Section 1. Requisites for a person to
When the rule says confidential aside from the intervene.But first of all, is there a requirement
common notion that it cannot be divulged, the in order that a person to intervene how a total
term confidential here would relate to stranger to a present and existing action could
admissibility as evidence, this simply means that join, participate, or intervene or litigate together
none of the parties nor the judge can make use will all the existing parties in that pending
of any matters discussed or admitted in either of action.
these proceedings and introduce it as evidence.
So stranger ka, gusto mo pumasok, there are 4
The Court Annexed Mediation and JDR is a requisites imposed by court in order that the
judicial proceeding, it is but related to Rule 129 person be permitted or allowed to intervene.
Sec.4— Judicial Admissions: an admission,
NOTE: You can intervene only before judgment
verbal or written, made by any party in the
is rendered. So before a judgment is rendered in
course of the proceedings in the same case, does
an action, a person can intervene followed by
not require proof. The admission may be
logical reasoning that after judgment is already
contradicted only by showing that it was made
rendered by the court, you will not be allowed to
through palpable mistake.
intervene anymore dahil may decision na
Judgment after pre-trial: nga.Yun ang sinasabi ng Codal Provision, but
Jurisprudence now says otherwise.We will go to
What if there was no issue, not genuine or by
that later on.
reason of admission?—- then thecourt may
render a judgement moto proprio, even there is 1) Leave of Court
no motion coming from the party, if there is no -Kailangan mo ng pahintulot ng Korte
genuine issue and so within a period of 90 para ka pumasok dyan para di ka maging
calendar days the court may render a judgement. intribida dyan.
So, file a motion for leave, attach thereto
Genuine Issue:The SC said that there is no
is your pleading in intervention.Bakit
genuine issue when from the facts given the
pleading in intervention? Bakit hindi
issue involved would not require evidence, when
complaint? Bakit hindi answer? Because
the issues to be resolved by the court no longer
an intervenor can intervene either as
requires presentation of evidence then that is
plaintiff or defendant by joining the
necessarily a non genuine issue.
cause of the plaintiff, he becomes a
plaintiff intervenor and so he will file a
complaint in intervention.He can join the
defendant, he files an answer
intervention to enjoin the defendant.
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2) That you be allowed to intervene by the  Sir, bakit intervention pa?

Court bakit hindi adverse claim
-Bakit kailangang payagan ka? or notice of claim? Well
Remember that this is a legal proceeding that is available and that
by which court enjoys and exercises wide is also permitted in
latitude of discretion whether to allow or intervention.
deny the intervention.
4) The act of intervention if permitted or
3) That the intervenor mush have a legal allowed by the court will not unduly
interest. (the grounds for intervention) prejudice the rights of the original
a. That the intervenor must have a parties.And that he is intervening
legal interest over the matter because his rights cannot be fully
under litigation protected if you will file separate action.
 He must have a legal –hahaba usapin if payagan ka
interest over the subject pumasok pa.
matter ng kaso - Malabo na makapagfile ako
 Example, nagfile ka ng ng another action.
kaso and ang subject eh
SO what is this legal interest which is the
kotse mo.So kotse ko yan?
principal issue so that I will be allowed to
Bakit nyo kukunin yan?
intervene?
Bakit nyo pinagaawayan
yan.I have an interest It is actually an interest that is actual, material,
there.So I have to file an direct and immediate in character.Pero kung ang
action in intervention. right mo ay contingent lang, or mere
b. That the intervenor must have a expectancy, that is not a legal right in
legal interest in the success of contemplation of intervention.
either of the parties
c. That the intervenor must have a Intervention is merely incidental or ancillary to
legal interest against both the an existing litigation or action.Consequently,
parties this being ancillary just like preliminary
d. That the intervenor is so situated attachment and other provisional remedy, the
as to be adversely affected bythe moment the principal action is dismissed, the
distribution or other disposition intervention will likewise be dismissed. So it is
of property in the custody of the merely dependent solely upon the principal
court or of an officer thereof. action.It cannot by itself stand alone.
 Ako ang mas may laking Alright, now, let us go to the exceptions of the
prejudice. Magssuffer ako requisites as to the period or prescriptive period
ng mas malaki kasi within which intervention can be filed.The rules
property ko pinag says before judgment.BUT IS THAT ABSOLUTE?
aawayan nyo, NO.
69
1) Let us take the case of Office of the the intervention was filed out of time, what is
Ombudsman VS Nieves SR (2008) your remedy? ORDINARY APPEAL since it is a
final order with prejudice.
-Even after the judgment have become final and
executory, intervention can still be RULE 20- DISREGARD
allowed.REASON: To serve justice and equity.
RULE 21- SUBPOENA (A compulsory process
2) IN another case, the SC further declared and issued by the court consonant with its judicial
went beyond the prescriptive perion.Rodriguez power to compel.And that power vested in our
vs CA (2013) courts are enumerated under Section 5 of Rule
135.Look at Sec 5 Rule 135, then you will see
-Although under rule 19, it expressly allow only
what kind of powers exerciseable by the
intervention before judgment, this rule is not
courts.Under the rules, there are 2 Kinds of
inflexible. Interventions have been allowed even
Subpoena.
beyond the period prescribed under that rule
when demanded by the highest interest of What are the different kinds of Subpoena.
justice.
1) Subpoena Ad Testificandum
3)In cases of indispensible parties as to accord 2) Subpoena Duces Tecum
him his right to due process and was not been 3) Combination of both
impleaded in that action.
Q: Define Subpoena Ad Testificandum.
-We know the rule, pag di mo naimplead ang
indispensible party, that action can even be
A: SUBPOENA AD TESTIFICANDUM is a process
directed to a person requiring or compelling him
dismissed if the proper motion to dismiss is
to attend and to testify at the hearing or trial of
presented in court.Although of course, that MTD
an action, or at any investigation conducted by
will not be allowed by the court under the
competent authority, or for the taking of his
present amendment to the rules of court. On
deposition. So you are required to appear there
what ground supposedly (if la pa amendment)
and testify in court.
On the ground of failure to state a cause of
action papasok yan.That case could be Q: Define Subpoena Duces Tecum.
dismissed because indispensible party is not
impleaded.That denies him due process, the A: SUBPOENA DUCES TECUM is a process
right to be heard.That right to be heard, even if directed to a person where it requires him to
the decision has been rendered by the Trial bring with him any books, documents or other
Court.When the petition for review of judgment things under his control. So, in other words we
has already been submitted for decision.Hindi are more interested in his documents, which are
lang sa CA, class, sabi ng Supreme Court, before in his custody. Whereas in ad testificandum, we
the SC and even when the assailed order has are more interested in his oral testimony. You
been already become final and executory. bring the evidence.
Suppose you intervention was denied. Trial Meanwhile if you are also being required to bring
Court denied it. Sabin g RTC halimabawa you the evidence, you having the possession of the
have no legal interest or the petition was filed, firearms and drugs and at the same time
70
compelled to testified by the policeman, then it in that place or the court where the action is
is actually Subpoena Duces Tecum and Ad pending. They can issue subpoena.
Testificandum.So because you will be required to
How about the CA or the SC? Oh! With more
testify and bring with you the evidence to be
reason. Supreme Court or any justice of that
presented in court.
Court can issue subpoena
Who are authorized to issue subpoena? Since
How about non-judicial officer? Can they
this is compulsory. Take note that you can be
also issue subpoena? Yes! Any officer or
held in contempt for refusing to obey the
body authorized by law but of course limited
subpoena. But who are they in the first place?
to and in connection with investigation
1) The court before whom the witness is conducted by the said officer or body. So
required to attend – the most common is they could also issue subpoena.
the court where the case is pending;
How about the Prosecutor? Yes! A prosecutor
2) The place where the deposition is to be
is an officer so he is included there among
taken – the judge in that court where the
the officers authorized in connection with a
deposition I supposedly to be taken; or
particular case pending preliminary
even if not before him it is applied before
investigation.
him in connection with deposition
3) The officer or body authorized by law to PROCESS OF ISSUING SUBPOENA
do so in connection with investigations
If the judge have issued the subpoena, sino
conducted by said officer or body – Now,
magsserve nito? And what is the mode of
even administrative bodies or quasi-
service that is allowed under the Rules? Well,
judicial officers are authorized to issue
subpoena can be served by personal or
subpoena like the Labor Arbiter in
substituted service. Just like summons there
connection with investigation conducted
can also be substituted service of subpoena.
by said officer or body;
And if it is a personal service, in fact the
4) Any Justice of the Supreme Court or of
fiscal may mail a subpoena. Pinapadala lang
the Court of Appeals in any case or
sa postal service ang subpoena.BUT the
investigation pending within the
Rules says that the original subpoena is
Philippines – So, practically any justice
served personally must be exhibite.Delivered
can issue a subpoena to attend a
to the person named in that subpoena.Eh
particular case although it is not before
kung malayo yon? Ano ang sinasabi ng
the SC. They are empowered to issue a
Rules? Ah you also have to tender syempre
subpoena.
yung pamasahe sya. Yung kilo matrix na
For example, deposition as we go to modes tinatawag which is provided by the rules.And
of discovery, the deposition is conducted the service of subpoena must be done within
before a notary public, the notary public reasonable time to afford the person to
cannot issue subpoena ofcourse, they cannot comply and attend to the court.
also cite the person in contempt so you go to
How about if the person is a witness? This is
court and apply subpoena even in the court
with more reason that there is a compulsion
71
insofar as his attendance is concerned and both, if it be a Regional Trial Court or a court of
the purpose of that subpoena is precisely to equivalent or higher rank, or by a fine not
compel him to attend. And noncompliance exceeding two hundred pesos or imprisonment
thereof would result to contempt. not exceeding one (1) day, or both, if it be a
lower court. (1a)
Now let’s go to this Contempt Process – The
contempt power of the Court for Section 3. Indirect contempt to be punished
noncompliance of subpoena. after charge and hearing. — After a charge in
You see, there will be continuing contempt writing has been filed, and an opportunity given
here.Meaning, if you are ordered to be detained to the respondent to comment thereon within
or encarcerated, that encarceration or detention such period as may be fixed by the court and to
will continue for as long as you refuses to be heard by himself or counsel, a person guilty
comply what is required of you under that of any of the following acts may be punished for
subpoena. indirect contempt;
If you are familiar with the Investigation of the (a) Misbehavior of an officer of a court in
Congress (Senate Blue Ribbon Committee) pag di the performance of his official duties or
sumipot ipapaaresto or kapag sumipot, ayaw in his official transactions;
sumagot. Kinukulong nila yon.Not only
attendance, but compliance in full of what is (b) Disobedience of or resistance to a
required under the subpoena.Lalo na dyan sa lawful writ, process, order, or judgment
Blue Ribbon Committee makukulong ka hanggat of a court, including the act of a person
di ka nagccomply who, after being dispossessed or ejected
from any real property by the judgment
Now, so in reference to this contempt power, or process of any court of competent
may I ask you, is this a direct or indirect jurisdiction, enters or attempts or
contempt? induces another to enter into or upon
such real property, for the purpose of
executing acts of ownership or
RULE 71: Contempt possession, or in any manner disturbs
Section 1. Direct contempt punished summarily. the possession given to the person
— A person guilty of misbehavior in the presence adjudged to be entitled thereto;
of or so near a court as to obstruct or interrupt
the proceedings before the same, including (c) Any abuse of or any unlawful
disrespect toward the court, offensive interference with the processes or
personalities toward others, or refusal to be proceedings of a court not constituting
sworn or to answer as a witness, or to subscribe direct contempt under section 1 of this
an affidavit or deposition when lawfully required Rule;
to do so, may be summarily adjudged in
contempt by such court and punished by a fine (d) Any improper conduct tending,
not exceeding two thousand pesos or directly or indirectly, to impede,
imprisonment not exceeding ten (10) days, or
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obstruct, or degrade the administration If it is an indirect contempt, how it is initiated

of justice; and commenced under Rule 71?Under Rule 71,
it tells us that for an indirect contempt, it must
(e) Assuming to be an attorney or an be commenced by a complaint filed.So that is
officer of a court, and acting as such why it is classified as Special Civil Action, the last
without authority; special civil action under the rules on civil
procedure.
(f) Failure to obey a subpoena duly
served; And since refusal to comply to the subpoena as
an indirect contempt, do we need to file a
(g) The rescue, or attempted rescue, of a complaint? NO. Sometimes we entertain that
person or property in the custody of an idea that in case of refusal or noncompliance
officer by virtue of an order or process of with the subpoena, the judge becomes the
a court held by him. complainant, the plaintiff, he becomes the
prosecutor and he is also is the judge.Tama?
But nothing in this section shall be so construed
Which is contrary to the ruling of the Supreme
as to prevent the court from issuing process to
Court in the case of PCGG VS Nanding Coangco
bring the respondent into court, or from holding
Sabi ng SC, that is illegal being the complainant
him in custody pending such proceedings.
and at the same time as a prosecutor and
eventually the judge subverts justice! Di pwede
NOW let us go to Rule 71.There are 2 kinds of
yan sabi ng Supreme Court. But here comes the
Contempts there.Direct and Indirect. In addition
contempt arising from the refusal to obey
thereto, we also classify contempt as criminal or
subpoena.The judge becomes the complainant,
civil. The question now is, nicontempt ka ni
prosecutor, and also the judge because he issue
judge and how does the judge holds you in
the contempt order.
contempt.Paano ang process bago ka nya
ipakulong.The answer to that question will tell So what is the process? Do you need to file a
you Whether it is direct or indirect contempt. complaint? NO SIR.So what is the predicate so
that a judge can issue an order holding a person
The nature of a direct contempt is discussed in
in contempt for refusing to comply with that
Section 1 of Rule 71.But this kind of contempt is
subpoena. The prosecutor will present an oral
not among those punishable by direct
motion in court, “Your honor, for failure to
contempt.Because disobedience and refusal to
comply with the subpoena without justifiable
comply with the lawful order of the court which
reason for non appearance, we move that the
is among the grounds for indirect contempt
witness be cited in contempt” So that motion is
pursuant to section 3 of Rule 71.There you will
in effect the complaint.That substitute the
see that among those grounds enumerated is
complaint required under Rule 71.Then sabi ni
refusal or disobedience to comply with the lawful
Judge, alright, having failed to appear despite
order of the court (Section 3 (b) Rule 71, and
subpoena, X ordered to explain within 48 hours
noncompliance with the subpoena (Rule 71
why he should not be cited in contempt. So that
Section 3 (f)
again is acomplaint against X that he has to
answer.
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If the witness presents a justifiable reason in his warrant, it can be quashed.So what are the
answer, then the court will not issue a contempt grounds? If you look at section 4, there are
order.The citation for contempt will not be grounds to secure Quashal ofsubpoena. What
issued by the judge. But if no justifiable are these grounds?
explanation can be offered by the person, after
service of a show cause order, then he will be Section 4. Quashing a subpoena. — The court
cited in contempt.That show cause order is the may quash a subpoena duces tecum upon
complaint itself.That is why I said the judge is motion promptly made and, in any event, at or
the complainant. before the time specified therein if it is
unreasonable and oppressive, or the relevancy of
Of course you are familiar with the rules on
the books, documents or things does not
contempt, there are particular provisionyou
appear, or if the person in whose behalf the
don’t rely with Rule 71 if it pertains to subpoena.
subpoena is issued fails to advance the
Because Section 9 of Rule 21 provides a built in
reasonable cost of the production thereof.
REMEDY AVAILABLE TO JUDICIAL AUTHORITY
FOR REFUSAL TO COMPLY WITH THE SUBPOENA The court may quash a subpoena
ad testificandum on the ground that the witness
Section 9. Contempt. — Failure by any person
is not bound thereby. In either case, the
without adequate cause to obey a subpoena
subpoena may be quashed on the ground that
served upon him shall be deemed a contempt of
the witness fees and kilometrage allowed by
the court from which the subpoena is issued. If
these Rules were not tendered when the
the subpoena was not issued by a court, the
subpoena was served
disobedience thereto shall be punished in
accordance with the applicable law or Rule. What are the grounds for quashing a subpoena
duces tecum?
Can a Subpoena be quashed?
The following are the grounds:
Yes. If there are grounds available. It can even be 1.) If the subpoena duces tecum is unreasonable
disregarded without quashing that subpoena. and oppressive;
2.) The relevancy of the books, things or
Look at Section 10. Exceptions. — The documents does not appear, is irrelevant. It has
provisions of sections 8 and 9 of this Rule shall nothing to do with the court;
not apply to a witness who resides more than 3.) the person in whose behalf the subpoena is
one hundred (100) kilometers from his residence issued fails to advance the reasonable cost for
to the place where he is to testify by the ordinary the production thereof.
course of travel, or to a detention prisoner if no
permission of the court in which his case is NOTE THE DISTINCTION BETWEEEN THE
pending was obtained. INSPECTION AND PRODUCTION OF BOOKS,
DOCUMENTS OR THINGS WHICH ARE PROVIDED
So if you are residing more than 100 kilometers UNDER RULE 27, one of the modes of discovery.
away from the Court, you can simply ignore or Under that Rule, person may also be ordered to
disregard that subpoena.Just like a search open.But in that case, the object of the mode of
74
discovery is either for copying or inspection, ground invoked by the lawyer? The ground
only of such purposes that is outside the court invoked by the lawyer is Lawyer-Client privilege
although it is part of the judicial proceedings, claiming that an examination of the lawyer will
the documents or things are not brought to violate the privileged communication between
court.Here, because it is a subpoena, you are him as a lawyer and his client consonant with
required to produce that and bring that in number 2 section 24 of Rule 130.
court.There shall be attachment of the cost for
reproducing these documents. When the person (b) An attorney cannot, without the
subject of the subpoena can file in court that consent of his client, be examined as to
motion to quash-- before the dayin which you any communication made by the client to
are required to appear and produce the him, or his advice given thereon in the
documents required of you, you must file that course of, or with a view to, professional
motion to quash. employment, nor can an attorney's
secretary, stenographer, or clerk be
How do you quash a subpoena ad testificandum? examined, without the consent of the
The court may quash a subpoena ad client and his employer, concerning any
testificandum on the ground that the witness is fact the knowledge of which has been
not bound thereby. acquired in such capacity;
Why he is not bound? because he was not Question, is the lawyer bound by the subpoena?
present in the commission of the crime during Can the subpoena be quashed on the ground of
the incident or that he was not given the fees lawyer-client relationship?
required in able to travel.The kilometrix was not NO.That is not among the ground for quashing
tendered to him. the subpoena.HE could still be examined with
respect to the communication between the
IN 2009, there was this beautiful bar question. lawyer and the client on matters before the
Q: Here is Mr. A, he consulted his lawyer on commission of the crime, but not after the
January 5, 2020 respecting his activity.He commission of the crime.
consulted about his plan to commit robbery.He THE ANSWER SHALL BE UNDER RULE 21 BECAUSE
planned to rob a bank.5 days later, they robbed THE QUESTION IS ABOUT THE QUASHAL OF
the bank (January 20). On January 22, he again SUBPOENA.
appeared before his lawyer and consulted him
against the possible charges to be filed against MODES OF DISCOVERY- There is not much
him if he is arrested and how to legitimize the amendments here. Except for 1 sentence in
money without incurring liability under the section 6 of Rule 23.
money laundering act. Subsequently, A was tried
in court. The prosecutor caused the issuance of So what are these Modes of discovery?
the subpoena to the lawyer, against the lawyer,  Rule 23- depositions pending action
who the accused consulted twice before and  Rule24- Depositions before action or
after the commission of the crime.The lawyer pending appeal
moved to quash the subpoena.What was the
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 Rule 25- Interrogatories to parties, the

procedure in Rule 23 being adopted for So kung ang ineexpect mong kalaban mo,
purposes of Rule 25. It made express defendant sa complaint na iffile mo
reference to the procedure which must subsequently, nakatira sa tawi-tawi eh ditto ka
be observed in Rule 23 sa Manila, necessarily to comply with the venue
 Rule 26-Admission by adverse party requirement, you have to file the petition in Tawi
 Rule 27- Production or inspection of tawi, you have to go there.
documents and things
 Rule 28- Physical and mental Rule 23- Depositions pending actionthat means
examination of person. there is already an existing action or case in
 Rule 29- remedies available or sanction court. You need to secure the testimony of a
enforceable in case of failure to comply witness for example, he cannot come to court
with these different modes of discovery. anymore. He is too old, seriously ill or bed ridden
and he resides more than 200km away from the
Now, the rule is that in case of modes of Court.For practical reason, you can apply for
discovery just like provisional remedy, these are deposition to secure his witness. It can be an oral
ancillary to the main action, except to rule deposition or written deposition.So if it is an oral
24.They are dependent exclusively to the deposition, you have to be there to ask question
principal action, except Rule 24 because Rule 24 with his witness.If it is written, that can be done
is by itself an action if it is a deposition before by somebody else in order to secure the answer
action.This rule, if you have noticed, is a of that witness.
transposition of Rule 134, perpetuation of
testimony. Time. When could a party can apply for
deposition? Do you need leave of court? Or you
Now why do I say that Rule 24 by itself is an can simply go ahead without asking the court to
action? Because in order to secure a testimony or take the deposition of the person.And if you did,
deposition, you have to file an action.So it is Whetehr such deposition will be admissible.
actually a petition for perpetuation of After the action is filed, of course.
testimony.WALA PANG KASO kaya before action
ito. In order for you to avail of this remedy, you Deposition-taking under Section 1 presupposes
have to file first an action.And this is an action that there is a pending civil case kaya nga, the
with a specific venue.Do not simply think about title is depositions pending action. There is an
Rule 4, because rule 4 gives you the different existing civil case and I would like to take the
venue, but not under Rule 24, if the purpose is deposition of certain people.
to perpetuate or secure a testimony before an
action. Q: When there is a pending action, is it necessary
that leave of court or permission should be
What is the venue? That petition shall be filed in sought for deposition to be allowed?
the RTC Where the expected adverse party in the
future action you contemplate to file The rule is, it DEPENDS if there is already an
subsequently resides. answer or no answer:
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1) If the defendant has already filed an 2) Identity and location of a person having
answer and therefore jurisdiction over knowledge of what relevant facts
the person of the defendant has been 3) Relevancy with respect to the issues
obtained, leave of court is not required. pertinent to the pending action.
All you have to do is send the questions
to the other party; NOTE that Rule 25, although it is also a form of
2) But if there is no answer, where the court deposition is limited to parties, to inquiry to
has not yet acquired jurisdiction over the parties not ordinary witness.While Rule 23 can
person of the defendant, it requires a be applied to persons or witness who are not
motion for leave of court. parties to the action.
3) Another instance where leave of court is
required under Section 1 is when what is So if we are talking about interrogatories to
to be taken is a deposition of a person parties, the title itself will already tell you that
confined in prison. these kind of deposition is confined to parties.In
fact, it refers to the parties to an action.
Is there is a requirement of securing jurisdiction
over the defendant so that we can proceed even
without leave of court?
The rule speaks of service, not filing.So kung
may naserve ka nang answer do you know the
reason for this? That is because the court wants
to know the subject of your deposition.Eh kung
may answer na, baka may admission na don e so
di mo na kailangan itanong yan. IF the matters
of inquiry has already been denied or admitted
in a responsive pleading, the adverse party can
even ignore that.
Now, let us know the Scope of deposition under

rule 23. To what extent that a party seeking
deposition under rule 23? (grammar) What is the
scope?
There are three major areas which may be

covered within the scope of deposition.
1) With respect to a claim or defense of the

party. The existence, description or
custody, etc. of certain evidence or any
tangible evidence.
77
April 24, 2020 and notice, that such exceptional

circumstances exist as to make it desirable,
Modes of Discovery
in the interest of justice to allow the
 Rules 23 to 26 deals with testimonial deposition to be used. (Rule 23, Sec. 4)
evidence and the party may apply after
Upon ex parte motion of a party, the testimony
service with or without leave of court. While
of any person, whether a party or not, may be
Rules 27 and 28 deals with Object or
taken by deposition upon oral examination or
document evidence and cannot be availed of
written interrogatories. The attendance of
without leave of court.
witnesses may be compelled by the use of a
Rule 23 - Depositions pending actions subpoena as provided in Rule 21. Depositions
shall be taken only in accordance with these
 The deposition may be used for the following Rules. The deposition of a person confined in
purposes: prison may be taken only by leave of court on
such terms as the court prescribes (Sec. 1, Rule
1. BY ANY PARTY - For the purpose of 23).
contradicting or impeaching the testimony of the
Requirements (if take by leave of court)
deponent as witness
1. Prior leave of court
2. BY AN ADVERSE PARTY for any purpose - If the 2. Notice (sec. 15)
deponent is a partyor anyone who was at the
time of the deposition was an officer, director, Section 15. Deposition upon oral examination;
or managing agent of a public or private notice; time and place.
corporation, partnership or association which is A party desiring to take the deposition of any
a party, his deposition can be used person upon oral examination shall give
reasonable notice in writing to every other party
3. BY ANY PARTY for any purpose - If the
to the action.
deponent is a witness, whether or not a party to
the case, if the court finds The notice shall state:
a) That the witness is dead; or b) That the 1. the time and place for taking the deposition
witness resides at a distance more than one and;
hundred (100) kilometers from the place of 2. the name and address of each person to be
trial or hearing, or is out of the Philippines examined, if known, and if the name is not
(UNLESS it appears that his absence was known, a general description sufficient to
procured by the party offering the identify him or her or the particular class or
deposition); or c) That the witness is unable group to which he or she belongs. On motion
to attend or testify because of age, sickness, of any party upon whom the notice is served,
infirmity or imprisonment; or d) That the the court may for cause shown enlarge or
party offering the deposition has been shorten the time.
unable to procure the attendance of the
Persons Authorized by law
witness by subpoena; or e) Upon application
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Sec. 10 . Persons before whom depositions may of the judge or court to whom such letters are
be taken within the Philippines: addressed.
1. Judge; Q: Is an ambassador authorized to take

2. Notary Public; or depositions?
3. Any person authorized to administer
Ans: NO because ambassadors deal with matters
oaths, if the parties so stipulate in writing
regarding political office and not legal office.
(sec. 14)
Q: What is the difference between Rule 23 and
Sec. 11 . Persons before whom depositions may
Rule 25?
be taken in foreign countries:
Ans: In rule 23, the written interrogatories are
1. on notice before a secretary of embassy
not served upon the adverse party directly.
or legation, consul general, consul, vice-
Instead, delivered to the officer designated in
consul, or consular agent of the Republic
the notice.
of the Philippines;
2. before such person or officer as may be While in rule 25, the interrogatories are served
appointed by commission or under upon the adverse party.
letters rogatory; or
Note: the difference lies to the person who is
3. Any person authorized to administer
asking the questions/ interrogatories.
oaths, if the parties so stipulate in writing
(sec. 14) Duties of the Officer
Sec. 13. Disqualification by interest. Note: just read secs 17 to 22
No deposition shall be taken before a person Limitations of Depositions

who is:
Section 16. Orders for the protection of parties
1. A relative within the sixth degree of and deponents. — After notice is served for
consanguinity or affinity; taking a deposition by oral examination, upon
2. Employee or counsel of any of the motion seasonably made by any party or by the
parties; or who is a relative within the person to be examined and for good cause
same degree, or employee of such shown, the court in which the action is pending
counsel; or may make the following orders: (a) That the
3. Who is financially interested in the deposition shall not be taken;(b) That the
action. deposition may be taken only at some
designated place other than that stated in the
Q: What is letter of Rogatory?
notice; (c) That the deposition may be taken only
Ans: An instrument sent in the name and by the on written interrogatories; (d) That certain
authority or court to another, requesting the matters shall not be inquired into; (e) That the
latter to cause to be examined, upon scope of the examination shall be held with no
interrogatories filed in a case pending before the one present except the parties to the action and
former, a witness who is within the jurisdiction their officers or counsel; (f) That after being
79
sealed the deposition shall be opened only by (a) As to notice. — All errors and irregularities
order of the court; (g) That secret processes, in the notice for taking a deposition are waived
developments, or research need not be unless written objection is promptly served upon
disclosed; or (h) That the parties shall the party giving the notice.
simultaneously file specified documents or
(b) As to disqualification of officer. — Objection
information enclosed in sealed envelopes to be
to taking a deposition because of
opened as directed by the court. The court may
disqualification of the officer before whom it is
make any other order which justice requires to
to be taken is waived unless made before the
protect the party or witness from annoyance,
taking of the deposition begins or as soon
embarrassment, or oppression.
thereafter as the disqualification becomes
Section 18. Motion to terminate or limit known or could be discovered with reasonable
examination. — At any time during the taking of diligence.
the deposition, on motion or petition of any
(c) As to competency or relevancy of evidence.
party or of the deponent and upon a showing
— Objections to the competency of a witness or
that the examination is being conducted in bad
the competency, relevancy, or materiality of
faith or in such manner as unreasonably to
testimony are not waived by failure to make
annoy, embarrass, or oppress the deponent or
them before or during the taking of the
party, the court in which the action is pending or
deposition, unless the ground of the objection is
the Regional Trial Court of the place where the
one which might have been obviated or removed
deposition is being taken may order the officer
if presented at that time.
conducting the examination to cease forthwith
from taking the deposition, or may limit the (d) As to oral examination and other particulars.
scope and manner of the taking of the — Errors and irregularities occurring at the oral
deposition, as provided in Section 16 of this examination in the manner of taking the
Rule. If the order made terminates the deposition, in the form of the questions or
examination, it shall be resumed thereafter only answers, in the oath or affirmation, or in the
upon the order of the court in which the action conduct of the parties and errors of any kind
is pending. Upon demand of the objecting party which might be obviated, removed, or cured if
or deponent, the taking of the deposition shall promptly prosecuted, are waived unless
be suspended for the time necessary to make a reasonable objection thereto is made at the
notice for an order. In granting or refusing such taking of the deposition.
order, the court may impose upon either party
(e)As to form of written interrogatories. —
or upon the witness the requirement to pay such
Objections to the form of written interrogatories
costs or expenses as the court may deem
submitted under Sections 25 and 26 of this Rule
reasonable.
are waived unless served in writing upon the
Effects of errors and irregularities in depositions party propounding them within the time allowed
for serving succeeding cross or other
Section 29. Effect of errors and irregularities in
interrogatories and within three (3) calendar
depositions. —
days after service of the last interrogatories
authorized.
80
(f)As to manner of preparation. — Errors and Section 3. Objections to interrogatories. —

irregularities in the manner in which the Objections to any interrogatories may be
testimony is transcribed or the deposition is presented to the court within ten (10) calendar
prepared, signed, certified, sealed, indorsed, days after service thereof, with notice as in case
transmitted, filed, or otherwise dealt with by the of a motion; and answers shall be deferred until
officer under Sections 17, 19, 20 and 26 of this the objections are resolved, which shall be at as
Rules are waived unless a motion to suppress the early a time as is practicable.
deposition or some part thereof is made with
Note: the period under this section is to balance
reasonable promptness after such defect is, or
the period of answer to interrogatories.
with due diligence might have been, ascertained.
Note: you can object but it must not a violationor
Rule 24 - Depositions before action or pending
denial of due process.
appeal
Q: what are the effects of failure to serve written
Q: how to file deposition under this section?
interrogatories?
Ans:
Ans:
Section 1. Depositions before action; petition. —
Section 6. Effect of failure to serve written
A person who desires to perpetuate his or her
interrogatories. — Unless thereafter allowed by
own testimony or that of another person
the court for good cause shown and to prevent a
regarding any matter that may be cognizable in
failure of justice, a party not served with written
any court of the Philippines, may file a verified
interrogatories may not be compelled by the
petition in the court of the place of the residence
adverse party to give testimony in open court, or
of any expected adverse party.
to give a deposition pending appeal.
Rule 25 - Interrogatories to parties
Restriction to depositions and interrogatories
The procedure for Rule 25 is the same as the
Two test that affects and limits the scope of
procedure under Rule 23.
examination during deposition:
Section 2. Answer to interrogatories. — The
1. Privilege communication
interrogatories shall be answered fully in writing
and shall be signed and sworn to by the person Q: When it is privilege communication?
making them. The party upon whom the
Ans: When the ROC or any law renders a subject
interrogatories have been served shall file and
matter inadmissible.
serve a copy of the answers on the party
submitting the interrogatories within fifteen (15) It is called collateral matters under Rule 128.
calendar days after service thereof, unless the
court, on motion and for good cause shown, Section 4. Relevancy; collateral matters. —
extends or shortens the time Evidence must have such a relation to the fact in
issue as to induce belief in its existence or non-
Q: can there be objections?
existence. Evidence on collateral matters shall
Ans: Yes. not be allowed, except when it tends in any
81
reasonable degree to establish the probability or less than fifteen (15) calendar days after service
improbability of the fact in issue. thereof, or within such further time as the court
may allow on motion, the party to whom the
2. Relevancy request is directed files and serves upon the
party requesting the admission a sworn
Sec. 3, Rule 128
statement either denying specifically the matters
of which an admission is requested or setting
Section 3. Admissibility of evidence. — Evidence
forth in detail the reasons why he or she cannot
is admissible when it is relevant to the issue and
truthfully either admit or deny those matters.
is not excluded by the law of these rules.
Objections to any request for admission shall be
Rule 26 - Admission by adverse party submitted to the court by the party requested
within the period for and prior to the filing of his
 This section is exclusive only to the parties
or her sworn statement as contemplated in the
preceding paragraph and his or her compliance
Scope and purposes
therewith shall be deferred until such objections
are resolved, which resolution shall be made as
Section 1. Request for admission. —At any time
early as practicable
after issues have been joined, a party may file
and serve upon any other party a written request
Q: is rule 26 a judicial or extra judicial
for the admission by the latter of the
admission?
genuineness of any material and relevant
document described in and exhibited with the
Ans: judicial admission since all in pursuit of
request or of the truth of any material and
judicial proceedings. See section 4, Rule 129.
relevant matter of fact set forth in the request.
Copies of the documents shall be delivered with Section 4. Judicial admissions. — An admission,
the request unless copies have already been verbal or written, made by the party in the course
furnished of the proceedings in the same case, does not
require proof. The admission may be
Note: silent admission is implied admission
contradicted only by showing that it was made
through palpable mistake or that no such
Q: what is the effect of implied admission?
admission was made.
Ans: the same effect as express admission.

Rule 27 - Production or inspection of documents
or things
The person is now estopped from denying the
admission.
 Under this rule, Material is important than
relevancy.
Section 2. Implied admission. — Each of the
matters of which an admission is requested shall
Q: what is the difference between Rule 27 and
be deemed admitted unless, within a period
Rule 21?
designated in the request, which shall not be
82
Ans: rule 27 is a mode of discovery/ way to April 28, 2020

produce an evidence. While rule 21 is a mean of
compelling production of evidence. RULE 30 - Trial
Action shall be suspended because the

Q: is leave of court required under this section?
prosecutor will order to conduct an investigation
Ans: Yes. Leave of court is needed upon court
For what purpose? To determine whether there
order.
is collusion/coercion between the parties
Section 28 - Physical and mental examination of

When the prosecutor conducts such
persons
investigation, it will not be deducted for
purposes of the imposed 90-day period to
Section 4. Waiver of privilege. — By requesting
complete the presentation of evidence
and obtaining a report of the examination so
ordered or by taking the deposition of the With respect to suspension of action as
examiner, the party examined waives any expressly provided in Rule 30, Section 9, you
privilege he or she may have in that action or any have to go through substantive laws
other involving the same controversy, regarding
the testimony of every other person who has For example, under the civil code, when actions
examined or may thereafter examine him or her involve members of the same family, they will be
in respect of the same mental or physical given a period to determine *** for purposes of
examination. propriety of possibility of settlement
Section 29 - Refusal to comply with modes of Those are examples of suspending an act, those
discovery grounds shall not affect the period allowed for
parties to complete presenting their evidence
*just read and understand sabi ni sir.
Section 5. Order of trial
The order of trial, with respect to multi parties,

such as several defendants several plaintiffs,
third parties, fourth parties/defendants, during
the pre-trial, shall be determined as to who
comes first
Primarily, the rule provides who comes first and

who comes last with respect to presentation of
evidence.
But this will be varied by the court when

necessity requires it.
83
Could there be a reverse trial? The amended Rule

30, can there be a reverse trial?
“BTW, I forgot to discuss ex parte hearing/trial”
The old rule, removing Rule 16, there could be a
reverse trial
Under Rule 30 there is a provision of the power

Because under the present rule the defenses
of the court to delegate the reception of the
provided for or available to a defendant raised in
evidence to the branch clerk of court
an answer with the proper action -> could give
way to the basis of a reverse trial where the
This arises only in default cases
defendant would be required first to prove that
defenses
In default cases, there will be an ex parte hearing
But the amendments which provides that an old

The plaintiff is only allowed to be heard to be the
case of defenses which are also grounds for
exclusive party given the right to present
dismissal of the complaint, there could no longer
evidence that ex parte
be a reverse trial
That delegation to the branch clerk of court be

Because, the court, if these are raised in the
possible in MTC under the present rule? Can the
answer, should resolve within the period of 30
MTC judge delegate to his branch clerk of court
days in that answer = so there is no possibility
The reception of evidence in ex-parte
of reverse trial
hearings?The law did not make any distinction
The consideration by the court in a motion for

In case of ex parte hearing or in case of parties’
dismiss based on the four grounds, now
agreement to delegation of reception of
expressly allowed in a motion to dismiss, does
evidence
not necessarily result to a reverse trial
In ex parte hearing, in cadastral actions or

RULE 31 - Consolidation or Severance special actions of land registration cases, where
there is no adverse party there is always a
The rule provides consolidation of actions which
reception of evidence to the branch clerk of
may be effected by the court in a civil action.
court
It is done by the court in the same manner that

The rule now provides that any evidence could
actions or even subject matter of actions can be
be received by the branch clerk of court or
severed or tried separately
submit to the court the result of the proceedings
so there is no distinction with section 9 of rule
Under Rule 31 there are specific grounds
30.
provided where this consolidation of actions
could be possible
That branch clerk of court must be a member of
the bar.
Where there is a common question of facts?
84
victims can be consolidated because they have

Non-member of the bar that makes you a law same question of law and facts
graduate may be appointed or employed as
branch clerk of court but limited to courts of first How about severance of actions? Section 2 rule
level, that means MTC 31- This involves one action unlike
When section 9 requires that the reception of consolidation of several actions to one
evidence to a clerk of court, he must be a lawyer
not merely a law graduate. For the purpose of avoiding prejudice or for the
convenience of the parties, in cases of
So if the MTC has a clerk who is not a member complicated issues raised order, the subject
of the bar, then according to section 9 that matter be tried separately
branch clerk is not qualified to receive evidence RULE 32 - Trial by Commissioner
in ex parte hearing
Who is this commissioner?For specific or
particular subject or issues, a person possessing
Look at the qualifications in section 9
expertise in a specific field. Their expertise is
necessary in resolving issues pending in court
RULE 31 – Consolidation or Severance
A referral to a commissioner of a specific
questions in an action would be agreed to by the
What is consolidation? (section 1 rule 31) parties in writing
Consolidations of actions not merely
matter/issues Can the court motu proprio refer the case for a
certain issue to a commissioner under rule
Now there is a civil action in Quezon City and 32?Under section 2 there are two instances
another civil action in Manila involving the same provided by the rules by which the referral to a
parties, can this be consolidated?Is it possible to commissioner could be ordered by the court
consolidate these two cases? 1. Application of motion by the one of the
parties if they do not agree
The only condition imposed is that there is a - If there is already an agreement,
common question of law or facts then the court will be prompted by
that agreement
For example, in cases for claims involving the 2. “or on its own motion” = by the court
same subject matter, even if it involves different itself provided that there has to be a
parties but one defendant like the case of the notice that the court is referring the
sinking vessel provided that it is in one judicial matter to a commissioner
region
So it's not only by motion of the parties, the
All these cases for damages involving the court can order by itself or on its own provided
shipping lines brought about by the heirs of the that there is a notice to the parties
85
The issue is not limited during trial or after pre- - But not those objections which could
trial. It could be in pursuit of a judgment already have been invoked During the
rendered proceedings
- The objections that the party can invoke
So even after the judgment has been rendered, is limited to the report itself
the judgment is already final and executory, for
purposes of execution, the court can refer the The parties are given 10 days to raise their
matter to a commissioner objections if they so desire but limited only to
the findings of that report
(nag-lag for ilang minutes and may ibang

Is the court bound to accept the report
nagsasalita hehe)
submitted by the commissioner as appointed or
agreed by the parties?
- Not duty-bound
(inaudible audio)
- The court may adopt modify or reject the
report in whole or in part
Matters involving questions of facts which may

Or it may order a re-commission* of the report
not be raised in the pleadings or otherwise wrist
for purposes of conducting further proceeding
in a motion can be also….
so the parties could further present their
evidence
(more inaudible audio)
RULE 33 - Demurrer of Evidence
The commissioner must determine in the
Demurrer is a motion to dismiss
conduct of his proceedings what are those
evidence that are allowed and which are not Just like demurrer to evidence in criminal cases
admissible except that in civil cases leave of court is not
required
In that proceedings, the proper objection should
be made by a party Although in criminal cases it may not also be
required but only in under special consequences
All the objections must be raised in that if demurrer is denied with leave of court
proceeding itself Before the commissioner.
Otherwise they are deemed waived Ground by which the party, the defending party,
can file a motion to dismiss after trial? No cause
When his (commissioner*) proceedings has been of action
completed or terminated under the rules - Not entitled to relief = no cause of
- He is required to submit his report action
- The parties are still given the - Remedy: FIle a motion to dismiss and
opportunity to object insofar as that that is demurrer to evidence
report is concerned
86
A demurrer is a motion to dismiss filed by the You have to wait for a judgment and your remedy
defending party after the claiming party has is to present your evidence
rested its case
Section 2 first paragraph express tells us that a
Consequences if demurrer is denied = Shall have motion to dismiss or a demurrer to evidence
the right to present his evidence under Rule 33 is subject to Rule 15
Suppose it is granted and the action is A demurrer to evidence is subject to the

dismissed, what is the consequence? Waiver to provisions of rule 15. It is classified as litigious
present evidence on appeal motion
The rule prohibits a remedy of appeal on As a consequence of classifying as motion to

certiorari just like in Section 23 Rule 119 dismiss, through demurrer evidence, you have to
comply with the notice and hearing requirement
The denial of a motion for leave or the demurrer
itself shall not be subject to appeal of certain This at the option of the court pursuant to Rule
action 15 could be scheduled for hearing at the option
of the court
The same rule applies in demurrer in civil actions - Because pursuant to the provisions on
under Rule 33 litigation motions the movants must
furnish the adverse party a copy of that
The last paragraph of Section 2 tells us that an motion
order denying a demurrer to evidence shall not Take note that a demurrer, either in civil or in
be subject to appeal or a petition for certiorari criminal, Is an extended motion
prohibition or mandamus
The parties should be given a period to comment
or to oppose the demurrer and, at the option of
What does this mean? You go through the
the court, to set the motion of the hearing
remedy of presenting evidence the moment the
mirror is denied
A court may or may not set the motion provided
that the parties Provided that the adverse party
We will have a jurisprudence that allows
may be given a period to respond to that motion
certiorari as a remedy just like in criminal actions
brought about by Gloria Macapagal Arroyo vs.
Still an issue whether this demurrer is subject to
Sandiganbayan
certiorari
You cannot avail of an appeal or petition for

certiorari prohibition for mandamus from the RULE 34 - Judgment on the Pleadings
denial of your demurrer to evidence
Section 2 new provision
87
If upon determination of the court itself, it can

exercise the discretion on its own Does this follow that defending party cannot
- Otherwise if it cannot be determined avail judgment on pleadings? Any claimant can
outright then the motion for judgment file a motion for judgment on the pleadings. a
on the pleadings is subject to Rule 15 defendant can be a claimant or a plaintiff with
respect to his counterclaim or cross claim
Judgment on the pleadings just like demurrer
and summary judgment are all considered as So it is possible for a defending party that when
litigious motion he becomes a claimant, you can avail of a
judgment on the pleadings
The court can decide by itself and this is
different from what is mandated in Rule 18 that Although under the amendments to pleadings, it
the court after the pre-trial can announce that it will be more difficult to the defendant
could render judgment on the pleadings - Because there could be a reply only if it
- This is not pretrial but this is after pre- involves actionable document
trial
With respect to his counterclaim the principle of
Are there actions that cannot be subject to controverting of issues, as a consequence of
judgment on pleadings or even summary filing of responsive pleadings, will lie
judgment?
- Declaration of nullity of marriage, Whereas in his counterclaim, he cannot
annulment, legal separation - Because the reply is only allowed if there
- Because these are actions imbued with is an actionable document
public interest
RULE 35 - Summary Judgment

Can the defendant move for the judgment on the
pleadings? Assume that it is an action for sum of Take note that the present 10-day period for
money or a collection suit, can the defendant hearing has been reduced to 5 days
move for judgment on the pleadings?
Instead of failure to tender an issue, in summary
You are the defendant dinemanda hindi ka judgement under rule 35, the ground is when
nagbayad ng utang.Can you file a motion for a there is an issue but not genuine = a summary
judgment on the pleadings? judgment may be possible
- Because the defending party as far as his
Any defending party cannot avail of the pleading or answer is concerned does
judgment on the pleadings? not tender a genuine issue
- Section 1 tells you that where an answer
tenders or fails to tender an issue or When is an issue genuine so that summary
otherwise admits the material judgment is not proper?
allegations of the adverse party's
pleadings
88
- When the matter involved cannot be - No, the extent of moral damages for the
resolved without presentation of court to determine will cover several
evidence then the issue is genuine factors. Like the social standing of the
person
For example, the defense invoke is payment then What about actual damages? Yes
there is a necessity to present evidence and
evidence of payment in order to determine the Under Section 4 Rule 35, there is a provision
veracity of the alleged payment claimed by the authorizing the determination of the extent of
adverse party moral damages
- That defense or issue raised requires
presentation of evidence and therefore it But even assuming with these amendments That
is genuine = so summary judgement is includes now have the extent of the damages
not proper
There could be partial summary judgment
(inaudible audio)
If some other issues require trials then it shall For the purposes of liquidated or actual
proceed to trial damages, this can be determined by the court,
in so far as the amount thereof, by also
As opposed to judgment on the pleadings in considering the affidavits and supporting papers
support for a motion for summary judgment, a which the parties may submit or filed in court to
party may be allowed to present or submit support this motion for summary judgment
affidavit even the positions. So it is not confined subject to sanctions if the parties submit this
to pleadings documents in bad faith
Parties may still be allowed to submit other The last section of Rule 35 effects of submission
evidence to support the motion for summary of affidavits in bad faith
judgment such as affidavits
RULE 36 - Judgments and Final Orders

Damages may or may not be subject of a
summary judgment Why is there a “final order”?
- Because that separates it from
Unliquidated or claims for unliquidated damages interlocutory orders
can never be subject of summary judgment
These are judgments in final orders which
Can you subject a claim for moral damages ordinarily are proper subject of appeal, these are
under summary judgment? subject to appeal
For example, you were confronted with a claim As opposed to interlocutory orders which are not
for moral damages or exemplary damages even proper subject to appeals
attorney's fees for that matter, can it be a subject
of summary judgment?
89
- Unless there Is a specific provision that It is still submitted for decision if the parties
such order interlocutory in its character correspondingly presented evidence in a full
can be appealed blown trial
These judgments or final orders pursuant to It means that the parties are given the
Rule 36 are not immediately final and executory opportunity to present their evidence
because of these are still subject to appeal
Immediately after presentation of evidence,
The phrase “final orders” is used to distinguish according to Rule 30, there must be an oral offer
it from interlocutory orders of evidence
To look at the nature of a final order, under the The provision on offer of evidence consonant
remedy of appeals, to determine whether these with the order of trial by the court under Rule 30
orders could be really appealed specifically provides that every party to an action
- Because there are final orders pursuant must offer formally his evidence orally
to Section 1 Rule 41 that cannot be consonant with the provisions in Section 34 of
subject of appeal such as order Rule 132 in relation to Section 37 thereof*
dismissing an action without prejudice
As soon as the party has completed their
In contrast, an interlocutory order does not evidence, that case is deemed submitted for
attained finality. It is “in the meantime”. But decision
these are immediately executory
Another instance is by judgment by default as
The nature of interlocutory orders does not soon as the ex parte hearing is completed and
attain finality but immediately executory all the evidence of the plaintiff
- Then that case is being submitted as
Judgment, in contemplation of Rule 36, includes soon as the plaintiff has completed his
all kinds of judgments, such as a Rule 34 And evidence
Rule 35, it may also include judgment by
compromise Is there a requirement imposed on
judges/courts as to how the decision may be
When a compromise agreement is submitted by written? Under Rule 36? Oh yesss
the parties to the court, the court approves it
provided that it is not contrary to law, etc. Because even the Constitution itself, pursuant to
Article 8 Section 12*, the court must render
Judgment by compromise cannot be subject to judgement in an official language of the state:
appeal as it is immediately executory English and Filipino
The remedy is a petition for a motion to annul Even before the 1987 constitution Providing for
the compromise the two official languages of the Philippines
90
There has been an occasion where the SC has By simply looking at these Minute Resolution,
come out with a decision in Filipino they are in contravention to the Constitution
- The first was penned by Justice Romero itself
- Followed by former associate Justice
Tagalog
The other requirement is that it must state the

facts and the law on which the decision is based
So there cannot be a decision which is merely a
conclusion of law
If there is a misapplication of law, it may be a

subject of motion for reconsideration
This is true if the judgment is rendered as an

Order Resolution or otherwise
Let’s go direct to the SC
How many days are given to judges to render a

judgment?
- From the date it is submitted for
decision, 90 days, unless given an
extension by the SC
If he cannot render judgment within that period,

he must ask the SC for an extension.
- Otherwise, he will be held
administratively liable
Minute resolution rendered by the SC

- One paragraph resolution
- Not even signed by any justices (because
in addition to the requirements
imposed, it must be personally prepared
and signed by him)
Minute resolution is signed by the petition clerk.

It is not even reported or published. Minute
resolution does not satisfy the requirements
91
May 5, 2020 applies to all courts, including the Supreme

Court.
We are aware of the principle of the immutability

The provision under Sec 1 of Rule 36 is just
of judgement. The rule on immutability of
simply a reiteration of the constitutional
judgement provides that once the judgment has
requirement respecting the required to be
become final and executory, that judge becomes
rendered by a court of law.
immutable, no longer possible for any alteration,
You have to take note of the distinction between correction, changes. More so, another
judgement which is rendered in civil cases or judgement that could be rendered to alter,
special proceedings as opposed to judgement in modify, or totally change the judgement and that
criminal action. signals the application of res judicata.
In criminal action you should take note of Sec. 6, In accordance with a pex(?) of judgment
Rule 120’s requirements. In criminal cases, provided for, under Section 47, Rule 39, you
unless it is a judgement promulgated in have there the two modes/classes of effects: one
absentia, it has to be read to be accused and is conclusiveness of judgment and the other is
thereafter, filed. bar by prior judgement.
Civil cases where the judgement is merely file *Before finality of that judgment, of course, the
the requirement of filing this imposed. In civil judge can make necessary correction or
action, in consonant to Sec. 1, Rule 36, The last alterations before finality because it is an
requisite is that such judgement rendered by the inherent power of our courts to make changes or
court must be filed with a clerk of court. The amendments to any judgement so that this
presence of the parties are not needed when the judgement shall conform, not only to the law
judgement is filed, the judge merely transmits applicable, but to the facts established during
the signed judgement to his branch clerk of the proceedings.
court for filing so that it could be entered into
So, within that period to perfecting or taking an
the book of judgement.
appeal, that court can still modify, alter, or even
Now, if you look at Sec. 2 of Rule 36, the render another judgment in exercise of its
provision refers to entry of judgement and final inherent power. The prohibition applies only
orders. That precisely pertains to an entry made where the doctrine of immutability of judgment
by the clerk of court so far as to determine the brought about by its finality has sit in. This is the
finality of that judgement. So you have there the reason why the court finality under rule 37, a
book of judgement, where only the dispositing motion of consideration can be filed or a motion
portion is entered or stated and the date when for a new trial.
the judgement is supposedly become final and
When the court exercises that inherent power,
executory.
the rule on technicalities can be disregarded and
This would be the basis, thereafter, for the this has been explained very well by the court in
branch clerk of court in issuing a certification, the case of Villanueva v CFI of Oriental Mindoro.
which is called entry of judgement, and that
92
Now, are there any exceptions to the rule? That Literally it means, “Judgement now for then…”.
once a judgement has attained finality… What is this?
Q: By the way class, when does a judgement A: Judgment Nunc pro tunc, which literally
attain finality, except of course a judgement by means judgement now for then, is a judgement
compromise? which orders the entry of something that was
previously done.
Q: Are there exceptions to the rule that once a
judgement has become immutable, the trial A: Yes, Nunc pro Tunc is a cumulative act made
court or that court that rendered that judgment by the court. Something that should have been
is powerless to do anything about that done at the time the judgement has been
judgement? Because, it is axiomatic that once rendered, but it failed to do so.
judgement is already final and executory, any
Such as, when the judgement rendered several
action taken by that court so far as that final and
years ago, it was not recorded in the entry of
executory judgement is null and void. On what
judgement so the court can issue an order. What
reason/grounds?
is the purpose, for the purposes of future
Because the court, once the judgement attains execution to determine when that judgement
finality, loses jurisdiction over that action and has become final and executory. That has
since it has no more jurisdiction over that action, nothing to do with the original judgement.
the act of that court is simply void for lack of
A: It is an order directed to register or enter a
jurisdiction. This has been pronounced by the
judgement previously rendered by the court -
Supreme Court in the case of Nuñal v Court of
That’s how the Supreme Court made the
Appeals.
definition respecting the Nunc pro tunc entries.
A: there are exceptions established where the
3. Another exception is when there is a necessity
courts may still act on a judgement which has
to clarify the ambiguous portion of the decision.
already finality.
For example, the body does not agree with the
Example: dispositive portion of the judgement or the so-
called, decretal portion of the judgement by
1. The number one most common is the
simply clarifying such ambiguity which may have
correction of clerical errors. These are matters of
been caused by any omission or mistake. This
clerical errors which does not affect the
usually happens in the dispositive portion of the
judgement, like wrong spelling and grammar. Of
judgement, the case Presbiterio vs. CA explain
course, the court can fix that.
this matter.
2. Nunc pro tunc entries which causes no
4. The last one is where facts and circumstances,
prejudice to any party and of course where the
transpiring thereafter, that would render the
judgement is void.
execution of judgement to be impossible and
Q: What is this principle of “Nunc pro tunc”? What unjust. You know, in the labor case of Industrial
do you understand about “Nunc pro tunc”? Timber Corp v NLRC, there was this judgement
which was supposed to be rendered, or
rendered, by the court 5 years ago. And so, there
93
was a necessity to recompute, after several which supersedes the original judgement. A new
years, the amount which could be a proper decision which is called amended decision.
subject execution in consonant with the
dispositive portion of the judgment. You have to
adjust the amount by recomputing the award In a judgement there is also the so-called
from the time the judgement was originally discussion of the court which is has nothing to
rendered and the time when it was supposed to do with the case. What do you call that? - Obiter
be executed. dictum
Obiter dictum which cannot serve as a stare

decisis. It is a discussion which has nothing to
Let’s go to some principle.
do with the case, a parallelism only. It is not to
Q: Do you have any idea to this “Memorandum be considered as a case law.
judgement”?
Stare decisis, upon the other hand, this one
- It’s a judgement rendered by an appellate which holds that a point of law established by
court and incorporates the findings and facts of the court in a particular case serves as a
or conclusions in the decision or order under precedent and must be followed by the same
review. court, especially if it is the Supreme court.
Without consonant with the jurisprudence, all
A: A Memorandum judgement is, simply, an
courts must render obedience as oppose to the
order issued by the court that it adapts the
pro hac vice ruling of SC.
decision of the lower court. It no longer renders
its own decision but merely notify the parties Pro Hac Vice ruling/decision rendered by the SC
that it adapts the decision of the lower courts. cannot be used as a stare decisis because by that
So, it’s called memorandum. So, it agrees in toto principle it means it is applicable only in that
with the judgement and adapts it into its own case decided. So, you cannot cite that, but the
SC has violated this rule. In the same manner
We also have this supplemental judgement as
that in several occasions, you can see the
opposed to amended judgement/decision.
decision of the SC which even violates the
- A supplemental judgement does not take doctrine of immutability of judgment in so many
place, supersede nor extinguish the original cases.
judgement, it merely adds/supplements. Serving
[Post-judgement remedies] - which means after
to bolster or adding to something to the original
judgement has been rendered. Let’s leave out
decision and it exists side-by-side with the
Rule 39 for now.
original decision. It supplements the original
decision which may be lacking therein. Now, for reading ref. and understanding, Post-
judgement remedies could be classified into to
- In contrast, an amended decision is one which
two:
the trial court or any court, renders (after
reviewing its original judgement and once  Remedies before judgement have
rendered, it is) an entirely a new judgement become final and executory
94
 Remedies after judgement have become You look at a particular proceedings or actions
final and executory where the law/rules prescribe the period for
taking/perfecting that appeal. There cannot be a
Now under the 1st classification,
motion of extension allowed to file a motion for
= You have Rule 37, remedies are New Trial or consideration or new trial. Of course, in the SC,
Reconsideration. there is an exemption wherein a party may be
allowed an extension to file a consideration for
= Then there is Appeals, Ordinary Appeals,
reconsideration, but only in the SC.
under Rule 40 & 41.
= Then you have petitions for review, which are

Rule 42, 43, and 45. There are two grounds provided that can be
invoked for purposes of new trial:
1. Fraud, Accident, Mistake or Excusable

Then the next classification,
negligence
= Rule 38, Petitions or Motions for Relief from
2. Newly discovered evidence.
Judgement or Order.
= Then, the Grand Father of all remedies? You

have Rule 47, which is by itself an action - * In contrast, if you are talking about a motion
Annulment for Judgement. of reconsideration, there are more grounds
available for you:
= Then in some instances, you have Rule 65.
1. An excessive damages is awarded by the court
= Do you remember the last paragraph of
in that judgement, you can file a motion for
Section 1, Rule 41? Supposedly, where appeal is
considerations.
prohibited.
2. When the evidence is insufficient to justify a
= Special Civil Action. = Rule 64.
decision.
[Rule 37, New Trial.]
3. When the decision is contrary to the law.
For example, there is a misapplication by the

When, at what time/period, do you avail Rule law. The judge misapplied a law, but if one
37? A time within which to file this remedy? applied the correct law, the result would be
different. So, it is an error in law. The second is
- The law says a motion for a new trial or
an error with respect to facts because it involves
reconsideration shall be filed within a period or
evidence or simply if there is an
taking an appeal. So, take note on the periods or
exorbitant/excessive damages awarded.
proceedings can be appealed. If it is 15 days? 30
days? Or even 48 hours, such as a special
proceeding for habeas corpus or breach of
Where do you file this motion?
amparo or habeas data.
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- Of course, either a new trial or a motion for PARTICULARS OF THE GROUNDS FOR NEW TRIAL:
reconsideration should be filed in the court itself
1. Fraud, accidents, mistake, or excusable
which rendered the judgement.
negligence. Now let’s go to this Rule. What kind
Unlike before, in case of a new trial, it’s always of rule is this?
with the RTC.
A. Extrinsic fraud - it invalidates the judgement
Now, it is with the court that rendered that prevent the unsuccessful party from fairly
judgement subject of new trial or presenting his case/defense and losing party to
reconsideration. have its adversarial trial of the court.
In case of a motion for new trial, if it is granted, It is extrinsic, outside. Not intrinsic, not inside.
unless it is a partial new trial, the whole When you said extrinsic or intrinsic fraud, it is
judgement is vacated. one that affects the proceeding that court.
Outside the proceeding, it must be collateral, not
If it is a partial new trial, wherein a motion is
those within.
directed to a particular issue, then the whole
judgement is not vacated. Otherwise, if it Simply stated, the fraud that would allow a
involves that whole judgement, that judgement motion of reconsideration, pursuant to Rule 37,
must be vacated as there would be a trial de is one that prevents a party from prosecuting or
novo. depending his pose(?) in court. That means, to
further simplify, a situation he is denied due
Offhand, in new trial, there could be a second
process, he is denied his day in court. That
motion for new trial. Provided the second motion
circumstance that have prevented it from
for new trial involves a ground not existing or
presenting or defending is false, not necessarily
available when the first motion for new trial was
is he denial of his day in court.
filed. Now, in addition it is required that it has to
be done and filed within the reglementary For example, he was not notified of that the
period. Deducting the period or time, you have plaintiff is already presenting evidence because
to exclude/decrease the period by which the first the plaintiff presented, “Don’t worry about the
motion was pending and considered by the case.” and “Never mind, we can secure a
court. compromise.”
According to Section 5, Rule 37, a motion for It is the act of plaintiff, even the lawyers
new trial could be allowed for grounds not representing in court, so he didn’t know and
existing or available during all the time the fresh then there was judgement. The connivance,
motion for new trial was filed and considered by thereof, results to denial of due process.
the court. So, you have this so-called Balance
In Magno v CA, where a party was prevented
Period Rule - that is applicable for second
because of or resulting from a false promise of
motion for new trial.
compromise that purposely keeps him in
No fresh period rule, like Neypes v Court of ignorance of the suit. SC said such pretensions
Appeals, but the Balance Period Rule. and representation that corrupts the interest of
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the party is certainly a fraudulent act that deny a One cannot fathom how to reconcile this ruling,
person his day in court. but that is still an existing jurisprudence. We can
invoke that when a person has a mistaken belief
Intrinsic fraud, refers to any act of a party at the
as to the coverage and extent of the application
trial/during the trial. Although it may also result
of the law. It could be a ground for new trial.
to preventing him to a fair and just
determination of the case. So, it is within the How about mistake of facts? What fact would
proceedings. constitute a ground for new trial?
For example, a witness who falsely testify. In this - Mode of procedure

case, this is not the fraud that would warrant a
Can an effect of a compromise agreement just
new trial according to the SC. In Conde v
like effect or coverage of an act be considered a
Intermediate Appellate court, the SC, in this
mistake of fact?
instance, this cannot be invoked to warrant new
trial. - A mistake as to an effect of a compromise
agreement, for answering the complaint as a
B. Mistake? What kind of mistake? Does this refer
state of fact.
to mistakes of fact or mistakes of law or both?
* Read the case of Salazar vs Salazar? It is a
- Mistake as a ground for a petition for a relief
mistake of law, but in the end a mistake of fact.
from judgement, motion for new trial and a
motion lift order for default mistake of a fact and This is what I don’t understand with them. After
not mistake of law. However, with the case of the SC itself declared that this up to that
City of Iloilo v Pinzon, the SC also included something that constitutes a mistake of law and
mistake of law, where in good faith, the thereafter, classifying It as a mistake of fact... It's
defendant is misled in the case. Cited in so many is a mistake of law.
cases...
What constitute of mistakes of law? Looking at

C. How about negligence?
the City of Iloilo, there is an ignorance of the law!
Apparently, if you look at this announcement - Excusable negligence requires that the
from SC because SC ruled mistake of law would negligence be served gross that ordinary
warrant new trial due to ignorance as to the diligence and prudence could have been
scope and extent of the ordinance, so that is guarded against it. So, it must be an act that
actually ignorance of the law. generally imputable to the party itself.
* And what is the principle of ignorance to the *But, when a party represented by a counsel, will
law? the mistake of that counsel bind the client?
= Under the civil code? Ignorantia juris non - YES, the mistake of the counsel is binding on
excusat. OR Ignorance of the law excludes no the client just as the latter is bound by the
one. mistake of the lawyers. You are bound by the
negligence or incompetence of both of your
lawyers.
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The lawyer is the extension of the personality The file that was supposed to be filed wasn’t
and capacity of his client. Of course, the SC had filed because the messenger jumped of the jeep
long declared that this mistake or negligence due to epilepsy and there was an accident. The
committed by counsel could also be a ground for vehicle he was riding met an accident. Now what
new trial but, how great/serious would this constitute this fraud? Who is the author of this
negligence/mistake committed by a lawyer so fraud? When and how this fraud was committed
that can make use of it as a ground to say new to have to have a detailed of this in your affidavit
trial? of merit.
- The test will be if the party is prejudice and

prevented to present their case, it is considered
You have to discuss this fact in that affidavit of
so grave that a new trial may be considered.
merit.
Where the lawyer committed so grave or serious
mistake or negligence that results to a party
from not presenting his case in court. That could
D. If the ground is newly discovered evidence?
be use also by his client.
What is this newly discovered evidence?
- Newly discovered evidence are the ones

Unlike motion for consideration, there are other discovered after the trial and are could not have
requisites imposed under Rule 37 for purposes been/produced during the trial even with the
of new trial or motion for new trial and you have exercise of reasonable diligence and it must be
to take note of the so-called affidavit of merit. material and the evidence if presented would
probably alter the result of the action.
Q: What is this affidavit of merit? What document
is this? Either this evidence already exist during the trial
or not existing, but if that evidence is existing
- The rule says that the motion for new trial must
during the trial then the law requires that the
be supported or accompanied by this affidavit of
party may not have the opportunity of not
merit.
knowing it or they have this knowledge but there
A: An affidavit of merit must contain the facts is that impossibility to produce it during the trial
constituting the defenses and the nature of despite reasonable diligence.
character of the fraud, accident, mistake or
* A motion grounded on newly discovered
negligence (FRAME).
evidence, just like the affidavit required, must
If you’re talking about FRAME it, you have to also provide the court/also discuss what is the
have the facts constituting the particulars of this nature of this evidence. How and when was it
or any of these grounds What
involved. discovered? Because this are necessary for the
negligence are you talking about? What results? court to determine whether this is indeed a
Where does this excusable negligence from? newly discovered evidence and if so, presented
What constitutes this mistake, whether this is and considered by the court would alter the
mistake of fact or mistake of law? What result of the case, that could affect the
constitute accident? judgement already rendered by the court.
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Take note, that while there is trial de novo, the concept of a pro forma motion for
evidence already taken/accepted by the court consideration?
remains on record. It is not totally disregarded,
- A pro forma motion is one which does not, as
what is vacated is the judgement. But so far the
the rule provides, satisfy the requirements
existing evidence that have already been passed
provided under rule 37. When a motion for
by the court or admitted by the court, that
consideration simply reiterates what this been
evidence remains on record which shall be taken
ruled upon in the court, it could be a pro forma
together with the newly discovered evidence.
motion for consideration.
What is the effect?

Now in both grounds, a party seeking new trial
- Under Sec. 3 of Rule 37, "A pro forma motion
must show that with this grounds invoked and
for new trial or reconsideration shall not toll the
considered by the court, the resulting effect
reglementary period of appeal." So the period to
would be a different judgment that the court
take an appeal is not suspended because a
would be convinced that indeed, in cases of
motion for consideration is precisely to suspend
FRAME, for example where a party is denied their
the period from taking an appeal.
stay in court, they have a valid or good cause or
defenses. Although Neypes v CA decided, around 2005,
provides us the fresh period rule in so far as
You have a ground and you were denied your day
taking of appeals.
in court, yet you have no valid defense. In so far
as the cause of action, in so far as the evidence From SC rule in the case of Marina Properties
in record, it could not result to altering that Corp v CA, that simply because a motion for
judgement. Useless. The court may deny your consideration discusses or reiterates by way of
motion for new trial. discussion the matters, issues, that has been
passed upon by the court does not necessarily
If a motion for consideration or motion for new
make a motion pro forma.
trial is denied, would this be appeal-able? Can
you appeal an order for consideration or an Consonant the long-established jurisprudence
order denying a new trial? made by the SC in the case of NSC v Lanao del
Norte (Maybe this is the case?), it is not
- Under Sec. 9, Rule 37, it cannot be subject for
necessarily be considered as a motion which is
appeal. So, what will you appeal?
pro forma, not all simply because discusses,
- You appeal a judgement of final order or a reiterates, argued the issues already passed
judgement which was a subject for new trial. upon by the court. That by itself, does not make
a motion pro forma.
*I want you to look at Marina Properties Corp v

Now, there is this ruling by the SC (long time
CA decided on 1998.
ago) in the case of Marikina Valley Development
Corporation v Flojo. Are you familiar with the *Take note of Neypes v CA, when a motion of a
new trial, when Rule 37 is denied, a party has a
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rest period to perfect an appeal, whether it is 48 Under Sec. 7 of Rule 37: "If the grounds for a
hrs, 5 days, or 30 days. You have another fresh motion under this Rule appear to the court to
15 or 30 days as the case may be. affect the issues as to only a part, or less than an
of the matter in controversy, or only one, or less
than all, of the parties to it, the court may order
Suppose it is granted... As supposed to denial, it a new trial or grant reconsideration as to such
is granted. What is the affect? issues if severable without interfering with the
judgment or final order upon the rest."
- Under Sec. 6 of Rule 37: "If a new trial is
granted in accordance with the provisions of this - According to Sen. 8, it could order the
Rules the original judgment or final order shall suspension of the judgement.
be vacated, and the action shall stand for trial de Therefore, it could not be executed. It
novo; but the recorded evidence taken upon the will stay that judgement.
former trial, insofar as the same is material and
competent to establish the issues, shall be used
at the new trial without retaking the same." [Ordinary appeal.] - under Rule 40 and 41.
How about the motion for consideration? Sec 6- There are only 2 requisites required:
8 of Rule 37 for this purpose.
1. A notice of appeal stating therein what is
If it is a motion for reconsideration, it is decided being appealed from.
on the basis of pleadings or motions filed in
*Are you appealing the judgement as to facts or
court, like new trial, where there is trial. So that
law? The notice of appeal will simply state that
when a motion for consideration is granted then
the plaintiff is appealing the judgment rendered
a new decision is rendered by the court. It is
by this honorable court dated so and so, the
actually a new judgement, although the old
copy of which was received.
judgement is not vacated but reconsidered such
judgment that would precipitate the court to This is very essential to determine whether the
rendering another judgement. period of filing that notice of appeal is within the
reglementary period. - The timeliness of an
Supposedly, it reconsidered the amount of
appeal.
damages; It changes its ruling based on the
evidence pointed out by de novo; It corrected its * On errors of facts and law, in a one paragraph
judgement when applying the new laws, so it is pleading that satisfies the requirement for
a new judgement; and whether this is a total or purposes of notice of appeal and the adverse
partial reconsideration that principle applies. party must be furnished with that notice of
appeal.
2. Payment of appeal fee or appeal docket fee.

Now, if it is a partial consideration, what
happened to the old judgement? * Non-payment of this requirement, which is the
general requirements from denying an appeal
You have this original judgement, subsequently
from the trial court up to the SC, cannot vest
a motion for partial consideration was filed.
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jurisdiction to courts. Just like non-payment of Rule 70 cases: Notice of appeal, payment of the
the correct docket fees. appeal docket fee and if required, post
supersedeas bond for purposes of preventing
execution so far as ejection is concerned.
Generally, there are 2 requisites. One, filing of
notice of appeal the same court that rendered
that judgement and payment of the appeal How about cases covered under the rules on
docket fee. small claims, also decided by the courts of first
level or MTCs collectively. Can you appeal that?
*Now, in cases of possible entry and unlawful
detainer, while this is not for purposes of Under Rule 40, you cannot appeal small claims.
perfecting an appeal. If you look at Rule 70, for Rationale
you to suspend the execution of the judgement
- According to the 2016 Revised rule of
because judgement in a ejectment cases is
Procedure for Small Cases sec 24, a
immediately executory. In addition to these two
decision for small cases is final,
requirements, you have to post a supersedeas
executory and unappealable.
bond.
If there is any money judgement required, of

course, that money judgement cannot be What is your remedy from that judgement from
executed but the matter affecting you can be this rule of small claims? Nothing? Is that the end
executed immediately for failure to post a of all? What is the remedy? Is there a built-in
supersedeas bond. remedy based on these small claims?
- The general rule you can only question in a

special civil action those that are not appealable
The Rules on Summary Procedures for purposes
with the general principles. You know, the logic
of appeal.
there is that appeal would not be a speedy and
- Cases covered under the rules on appropriate remedy because that judgement is
Summary Procedure will be covered by immediately executory. The only way by which a
the regular procedure for purposes of party could prevent execution of that judgement
appeal of that judgement to the RTC. For is to secure a temporary restraining order or
the purposes of an appeal from a preliminary injunction and for that purpose, the
judgement of the MTC to the RTC, it is appropriate and speedy remedy in the course of
not a summary judgment that will apply law is certiorari.
because this is an appeal case.
If you look at Sec. 7 of Rule 65, that remedies
When you look at ejectment cases pursuant to available in a petition for certiorari, prohibition
Rule 70, in connection to Rules of Summary or mandamus. Even under Rule 64, on Section 8.
Procedure, the matter of appeals in cases So, the only remedy provided is certiorari.
decided under the Rules of Summary Procedure
shall be covered the regular rules of appeal.
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Under Rule 40, the matters provided as I always interlocutory orders which is not a
admonish to take charge on Section 1, Rule 41. proper subject of appeal that would now
discuss lengthily when the order of the
Q: Under Rule 40, for example, if an appeal from
court totally and finally disposes of all
a decision of the MTC is made to the RTC and
the issues of the case, leaving nothing
the question is: the appeal raises the jurisdiction
more to be done, that is a final order.
of the MTC, the appellant alleges that the MTC
That could be subject of an appeal.
has no jurisdiction over the action it has decided,
what is the appropriate action which the RTC As supposed to interlocutory orders, which
shall take if that is the issue raised: lack of simply disposes of a particular matter and living
jurisdiction? the action still to be finally determine by the
court. In that case, that cannot be proper subject
Q: If the RTC finds, for example, that indeed the
of appeal.
MTC decided the case w/o jurisdiction, what
measure or what should the RTC take over that So, if you are confronted of a dismissal of an
appeal? Will the RTC dismiss the action? action, that is always a final order, as there is
nothing more to be done. It completely disposes
A: The RTC shall proceed with the case and
an action.
decide the case based on the merits in which, the
RTC has original jurisdiction. Where the However, in the words of Sec 1 Rule 41, not all
judgement appealed from, raises the issue of dismissals of an action which is a final order to
jurisdiction and indeed, the RTC finds that it has the appeal. We have already discussed those
no jurisdiction, then the RTC does not dismiss orders which dismisses an action w/o prejudice,
the action. It shall proceed to try the case as if it cannot be subject of appeal.
is filed within.
By expressed provision of that Sec. 1, Rule 41,
the remedy is the proper or appropriate special
civil action because no appeal could be taken
Conversely, if the MTC dismisses the action on
therefrom.
the ground that it has no jurisdiction over the
action and on appeal, RTC finds that the MTC has
jurisdiction. What should the RTC do?
For clarification of Sec. 1 Rule 41, the ff. cannot
On the second instance, if the RTC finds the be subject of appeal:
dismissal of the MTC of an action erroneous on
1. An order denying a petition for relief. Relief
the ground it has no jurisdiction and the RTC
from what? From judgement.
finds out that court has jurisdiction on has action
it dismisses, what action should RTC take? 2. Interlocutory order: An order disallowing or
dismissing an appeal.
- In that opposite situation, the RTC shall
remand/return/refer back the case to 3. An order denying a motion to set aside a
the MTC for proper disposition for trial. judgment by consent, confession or compromise
Only final orders or judgement can be on the ground of fraud, mistake, duress, or any
subject of appeal as opposed to other ground which beseech consent.
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4. An order of execution An appeal from an order denying the motion for

reconsideration of an order of a dismissal of a
5. A judgment or final order for or against one
complaint is an appeal of an order of dismissal
or more of several parties or in separate claims,
itself.
counterclaims, cross-claims and third-party
complaints, provided of while the main case is * If you move for a reconsideration from the
pending unless the court allows an appeal order dismissing your complaint that is by itself
therefrom. an order of dismissal. Revisit Republic v Ortigas
and Company.
* Under Rule 36, there could be several
judgement or separate judgement. This does not
necessarily follow that because it is a judgment
How about Rule 41? Appeal from the decision of
or final order, one can immediately appeal this
the RTC to the CA.
final order for judgement because there is still
something to be trialed by that court. Same requisite under Rule 40: Notice of appeal
and payment of docket and lawful fee.
So, you can only appeal with leave of court, on
the same manner, that judgement cannot Can there be an appeal from a rendered under
necessarily be executed as a matter of right. So, the RTC without observing Hierarchy of courts?
it cannot also be a subject of appeal unless there
- YES. Sec 2 of Rule 41, the judgement rendered
is leave of court.
by the RTC in the original jurisdiction on the
6. The last one, of course, as we always matters of appeal pure questions of law. It is
emphasize, any order dismissing an action w/o expressly provided that the same shall be filed
prejudice. directly to the SC, from RTC to the SC.
*If you look at an order which is resulting from a - You do not pass upon CA. If you go to CA on
motion for reconsideration which denies the matters of pure questions of law by a judgement
relief craved for. It cannot be appeal but the rendered by RTC exercised of its original
appeal should be directed to the decision jurisdiction, then that appeal will be dismissed
rendered by the court. on the ground of wrong/erroneous remedy and
because it is direct to the SC. The rule must be
*On this matter, however, there is an exception
applied is Rule 45.
given to us by the SC on matters of an order
denying a motion for reconsideration because an * Do not file a notice of appeal, but a petition for
order denying a motion for reconsideration is review on Certiorari in accordance to Rule 45
generally interlocutory orders. This not an which is exclusive to the SC. It is an appeal
absolute rule according to SC. In the case of actually from RTC to SC, but petition for review.
Republic v Ortigas Company & Co., Limited
Partnership decided in 2014, SC declared or rule
that an order denying the motion for When is an appeal under Rule 40-41 deemed
reconsideration made by the Republic is perfected?
appealable.
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That appeal is deemed perfected from notice of Let's simplify that. In judgement, however,
appeal, but the court is insofar that appeal rendered by the RTC in the exercise of its
concerned will only have the jurisdiction the appellate jurisdiction as opposed to its original
moment the corresponding appeal fee is duly jurisdiction, the CA is empowered to resolve
paid. matters involving pure matters of law.
In reference to question of law or pure questions This is dealing with Rule 42 under sec 6 where
of law, would the CA also have jurisdiction on the court of appeal has the power to resolve pure
pure question of law? question of law, question of facts or a
combination of questions of facts and law.
Because we said that consonant and in
relationship to Sec 2 of Rule 41, when the
matters to be raised from a judgement rendered
Let us distinguish.
by the RTC by the exercise of its original
jurisdiction is pure questions of law, that remedy A judgement rendered by RTC in the exercise of
should be directly brought to SC via a petition its original jurisdiction (where the case was
under Rule 45. originally filed and started in the RTC) and the
issues involved out of that judgments is pure
Rightly so because consonant to ruling SC in Ver
question of law, go to SC.
v Kitolio (?Not correct name?), only the SC has
the final say of what the law is. It is the final If the judgement rendered by the RTC is in the
arbiter on pure questions of law and the exercise of its appellate jurisdiction, go the the
pronouncement, interpretation or ruling of the CA even if matters involved are pure questions
SC of what this law is should be binding. of law.
Of course, all must take their bearing out of that

pronouncement or interpretation made by the
Now there are appeals and this applies on Rule
SC. No other courts have the final say on what
40 and 41 where a notice of appeal is not
the law is, only the SC.
enough.
Period/reglimentary period provided to

In what instance would the CA have the power to perfecting the appeal. 15 and 30 day period.
take cognizance of matters involving pure
In what cases a period to perfect a perfect is 30
question of law?
days as opposed to 15 days?
- If original jurisdiction belongs to
Student Answer: When the motion for
MTC/lower court (but not RTC).
reconsideration/new trial is denied then the
So if it belongs to MTC, having original aggrieved party is subject to a fresh period to
jurisdiction of an action, the CA would have the appeal.
power to entertain an appeal involving pure
We're talking about 15/30 day period, despite
question of law?
whether there was a motion for reconsideration
or new trial. In appeals, a motion for
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reconsideration is not a requisite, it is a One, pursuant to Rule 67: the issue of

prerogative of a losing party whether before determining the right to expropriate, the
taking appeal he take a motion for determination of the court that the plaintiff
reconsideration or new trial. He can directly indeed possesses the right to expropriate the
appeal that judgement. Up to him. That is not private property and whether it is for public use.
the answer for this question. That issue must be decided by the court and
consequently the final order will be issued. That
order is a final order and can be subject to
Why is the period 30 days and then the other one appeal.
15 days? Why are you given a month to perfect
The other is order issued court determining or
an appeal?
fixing just compensation. The ruling of the court
- In actions or proceedings where a record in as to how much the property owner is entitled by
appeal is required or mandatory then a party is way of just compensation is likewise a final
given a longer period which is 30 days to take an order. The same is true with Rule 68: Foreclosure
appeal. of real estate mortgage. There are several
subject matters involved. Rules 69 for that
In special proceedings such as settlement of
matter, also several subject matters involved
estate or in an action where multiple appeals are
which the court will issue a final order. These are
permitted, therefore a record of appeal is
actions subject to multiple appeals.
necessary, the period is 30 days and, as far as
the appealing party, that appeal is perfected only With respect to Rule 40-41 in those proceedings
upon the filing and approval of the record on of actions where the rule imposes the filing of
appeal. the record of appeal, that record of appeal must
be filed - to precipitates or gives the party
So it must be filed in due time but in cases of
appealing therefore a longer period of 30 days
record of appeal and exercise of discretion, the
which to perfect that appeal and as to him, the
court may allow extension for filing this record
appeal deemed perfected upon filing and
of appeal - This is the history of the incident and
approval of that record of appeal. These are
evidence submitted by the court below. It is a
mandatory.
summary of what has taken place in the court
below which must be filed. With that, you are
given a longer period for the preparation of a
The effect of appeal as far as RTC concerned,
record for appeal.
that court is effectively denied of its jurisdiction.
Multiple appeals. Once the appeal is perfected, the court is now
divested of it's jurisdiction over the action. It has
For example, in a special civil action of
no more authority over that action.
expropriation, there are two subject matters
involved in expropriation and each of this Of course, there is still Residual powers that will
subject matter the court will decide and issue a be exercised by the trial court despite the
final order. What are these two subject matter? perfection of that appeal. That Residual powers,
consonant with its inherent powers that are
105
granted to the court under sec 5 of rule 135, 4. Grant execution pending appeal under Rule
could still be exercised. 39, sec 2. - Discretionary execution of a
judgement during appeal.
Example: Party submits compromise despite
appeal perfected, court may entertain that for 5. Party wants to withdraw his/her appeal,
matters which would require the preservation notwithstanding the fact the appeal is duly
and protection for the rights of the party perfected as the party changed his mind. The
pending appeal. Those matters which will not Party may file a motion in that same court to
prejudice the rights of the party. allow him to withdraw his appeal. <- Can be
granted.
[REMEMBER: The extent of the residual powers
which courts can exercise despite the fact that
the law already divested the court of its
Two notable grounds where appeal would be
jurisdiction and one of this instance is where the
dismissed under Sec 13, Rule 41:
appeal from that judgement rendered has been
duly perfected. That is where the rule in residual (1) Appeal filed out of time and (2) non-payment
powers can still be exercised by the courts.] of docket and lawful fees required for that
appeal within the reglementary period.
*Take note that only in insufficient amount,

Rule 41, Sec. 9 & Sec 9 of Rule 40: <- Evidence
insofar as the appeal is filed, the party should be
of Residual powers
given the opportunity to pay in accurate or full
There you will see that prior of the transmittal of payment like docket fees filing an action. That
the records of that case (the appeal of that cannot be automatic dismissal since he should
party), there are still matters which this court be allowed to pay for the full amount.
whose judgement is being appealed can
(Different when you go to CA and SC. there are
exercised.
so many grounds provided in the rules for the
dismissal of the appeal.)
Ex.
1. Actions or orders that the court may issue for When the appeal is taken to the RTC, are you
the preservation and protection of the rights of required to file an appellant's/appellee's brief?
the party which does not involve any matter
NO. An appeal from the MTC to RTC does not
litigated in the appeal.
require the filing this so-called
2. Approved compromises can be executed even appellant/appellee's brief or a reply.
after the finality of the judgement.
What is required is the filing of a Memorandum
3. Can approve appeals in so far as indigent of appeal instead. Once the record of the case is
parties. transmitted to RTC, the RTC will issue an order
requiring the party within a certain period to file
the memorandum of appeal.
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Of course, in the case of CA, if it is an ordinary EX. Client is absent/sick, unable execute the
appeal from RTC, Appellant's/Appellee's brief certificate of non-forum shopping.
and subsequently a reply for a specific period of
Certain evidence is not yet available which is
time.
crucial to his petition.
Provided, you pay the appeal fee within (meaning

[Rule 42] the motion for extension and payment for
docket fee is done) within the reglementary
Rule 42 a mode of review like Rule 43.
period. You cannot seek extension on something
It is a petition that governs the review from a that has already expired. It must be done before
decision of the RTC rendered in the exercise of original period expired.
its appellate jurisdiction.
So a case coming from the MTC, thereafter

When filing your petition, even your motion for
appealing to RTC can be further elevated by CA
extension, the adverse party (or if he has a
by way of petition for review. Do not file a notice
counsel by record) needs to be furnished just
of appeal in the RTC, but a petition within
like your notice of appeal. In addition, you have
reglementary period directly file CA.
to deposit to the clerk of court the cost.
* File the petition and pay docket fees in the CA,
*No case yet dismissed by way of petition rule
not RTC.
42 for non-payment of this cost.
Perfection of this petition deemed made/take

Petitions in CA to be filed by petitioner must be place upon payment of docket and other lawful
filed within a period of 15 days from notice of fees within the reglementary period.
judgement rendered by that RTC.
Notwithstanding the allowance of extension to
Can you file a motion for reconsideration in the file a petition under CA under Rule 42, the CA
RTC? until such time that the petition is duly filed
cannot acquire jurisdiction.
YES. Rule 40-42, 43 and 45 ARE covered by
Neypes vs CA. That means you will have a fresh
period in filing your petition for CA.
What are the requirements imposed? The
Can you file a motion for extension in filing your matters discussed now can be similarly found in
petition for review, unlike in the RTC and Rule Rule 43.
40-41 where you cannot file an extension?
- Primarily, allege the parties (who are the
YES. Under most compelling reason, the CA can parties of the case?)
grant an extension not exceeding 15 days. Here
you will have an opportunity of extending your
opportunity to filing your petition to the CA. * Since this is a petition, Rule 42-43 and Rule 45:
*Compelling reason?
107
Do we need to implead RTC under Rule 42? - In order for the court to determine the
Under Rule 43, do we need to implead an authenticity of the documents that would
administrative agency that decided the case? SC, support the petition. Machine copy or Xerox
RTC or CA - do we need to implead them? copy or reproduction copy then that is not
genuine. It must be original/duplicate
- NO. They are not required to be impleaded in
original/certified true copy.
that petition. The allegations there (and even the
captions) will only be limit itself to the parties of - This has to be mandatory required otherwise
the actions. Do not implead the court or agency the petition will be dismissed.
that decided the case.
6. Petition must be verified and accompanied a
certification against forum shopping.
In notice of appeal, you must expressly state in

that petition:
The mode of review or appeal is not a matter of
1. The material dates. - The date showing the right. It is discretionary. There can even be a
timeliness of the petition. summary denial or dismissal of the petition.
How to determine the timeliness of the petition?

You have to state the date when you receive or
On the part of the respondent, the winning party
the judgement served upon you - the date of
below will be ordered by the CA: (1) upon finding
receipt or if the motion of reconsideration was
that the petition is sufficient in form and
filed, the date when the order resolving the
substance, to file its comment from 10 days
motion for reconsideration was served upon
from notice or; (2) dismiss the petition/deny the
you. = Those are the material dates for the
petition if it finds the same to be without merit
timeliness of the petition.
or patently without merit or prosecuted for
2. State clearly and distinctively the facts manifestly for delay the case or the question
involved. raised in the petition is too insubstantial to
require consideration that will not justify a
3. The issues to be resolved in that petition.
reversal.
4. What are your grounds?
*When you receive a resolution from CA
5. Petition accompanied with original duplicate requiring you to file a comment to the petition,
or certified true copies of judgement or final this does not necessarily mean the CA is giving
orders of the lower court or other pleadings due course for the review.
material to the case.
It is only after receipt of that comment and upon
*The duplicate or certified true copy = legible the determination of the CA that the petition is
copies. Duplicate is considered original under proper to take cognizance and resolve the
sec 4, Rule 130. petition that the CA will announce that it is
giving due course to the petition because it finds
Why are these necessary to be original or
prima facie that the lower court committed:
certified true copy?
108
irreversible error as to the finding of facts or In cases of ejectment Rule 70, the moment the
even the law that warrants a reversal or judgement reaches the CA, the supersedeas
modification it rendered. bond has no purpose. You cannot suspend the
eviction by posting that supersedeas bond.
If it is a matter of law, sec 6 in relation to sec 2
Because that is rendered immediately executory
of Rule 42: If the CA find that the soul issue
in pursuant of Sec. 8 of Rule 42 and Sec 21 on
raised is question of law and finds it irreversible
the rules of summary procedure, also Sec. 21 of
then it gives due course to petition.
Rule 70.
* Under Rule 43, does the filing of a petition for

That is only so far as eviction, not the money
review (duly perfected) suspend the execution of
judgement.
a judgement rendered by the RTC in the exercise
of its appellate jurisdiction? For example, on ejectment cases whether
forcible entry or unlawful detainer, there is an
award of back rentals, damages, attorney’s fees
Will the perfection of that petition for review in which will not exceed 20,000 pesos. That money
the CA suspend execution of that judgement judgement is suspended, only the matter of
soon to be reviewed? Is the perfection of that evicting the losing party.
petition in the CA from a judgement rendered by
the RTC of its exercise of its appellate
jurisdiction suspend the execution of that Rule 43
judgement?
- Rule 43 is obviously, as the title tells you,
You have a collection suit, which started in the confined to administrative agencies in the
MTC, appealed to the RTC and a petition of executive branch of the government exercising
review in the CA, can you execute that, pending quasi-Judicial functions.
that petition of review?
- Now, delete section 1 of Rule 43. Under the
- Last section of Rule 70? Also Sec 8 of Rule 42? present rule, a court of Tax Appeals is still
included in rule 43, but by reason of the law
Rule 70, Sec. 21: "The judgment of the Regional
expanding the jurisdiction of tax appeals. It is
Trial Court against the defendant shall be
now a part or the same level of CA. CAT is not
immediately executory, without prejudice to a
within the jurisdiction of the CA to review the
further appeal that may be taken therefrom."
final orders of judgement rendered by the court
- In relation to Sec. 8, Rule 42 except in civil taxes appeals.
cases decided under the rule on summary
- So, you have there the enumeration of the
proceeding, the statement of final order unless
quasi-Judicial agencies and included also in rule
the law say or this rule shall provide otherwise.
43 is the review of the decision rendered by the
If you are talking about Sec. 21 of Rule 70, that’s office of the president.
also Sec. 21 of the rule of summary procedure.
109
It also includes now the decision of the NLRC but ombudsman in administrative cases, referring to
not under Rule 43. The decision rendered by the the doctrine laid down by the SC on Wincamino
NLRC, sitting as a Commission and the decision v CA (2014) and subsequently, Ombudsman v
rendered on appeal from the judgement of the Samaniego (2017), that the CA injunctive orders
labor arbiters, is placed under the jurisdiction of (meaning TRO or preliminary injunction) issued
CA, consonant with the ruling of the case in St. upon ombudsman is not valid and binding.
Martin’s Funeral Homes.
Decisions of the ombudsman on the

administrative cases are placed under Rule 43.
In criminal cases decided by the ombudsman, SC
under Rule 65.
Now, resolution of the secretary of the justice

who is even lower than the office of the President
is also under the court of appeals and not under
rule 43, but under Rule 65.
2 agencies: Secretary of Justice and the NLRC,

under rule 65 but under the CA. More or less, we
have to go through the enumerated quasi-
Judicial Agencies.
* Take note of the case of Binay v the

Ombudsman, decided on 2014, it is an
administrative case w/c questions the propriety
of the suspension emitted to Mayor Junjun Binay
that eventually resulted to the ruling of the
Supreme court upon petition of Ombudsman
Morales, even questioning the jurisdiction of the
CA, showing a temporary restraining in so far as
its order suspending Binay.
There, the SC, the most significant ruling made

of the SC is when it declared particular provision
of the charter of the Ombudsman, the law
creating the ombudsman, particularly Sec 4 &
12.
* Take note the decision of the SC because, if

you still remember in your administrative law.
If you take a look at the previous ruling of the SC

involving the disciplinary powers of the
110
May 6, 2020
A: Yes. CA vested with power to decide such
question.
RULE 43
 In case of COA and COMELEC, the mode

RULE 45
of review is under rule 64. Meanwhile,
CSC appeal is in rule 43. Certiorari under rule 45 compared with rule 65.
 Does not stay the execution of the
judgment, unless injunction or TRO was
RULE 45 RULE 65
made by the court.
GR: Only question Special civil action.
 Rule 43 can be outrightly denied in non-
of law can be
compliance with the exhaustion of
raised.
administrative remedies.
See 11 EXCEPTION
Q: COMELEC employees were administratively where SC allowed
charged in connection with participation of to take cognizance
election offenses. COMELEC en banc decided to even question of
DISMISS the employees. The employees raised facts.
their petition via Rule 64 in connection with rule
65. SC dismissed the petition – is the dismissal Also, in cases of
correct? writ of kalikasan,
habeas data.
A: Yes.The complaint should be filed in CSC,
being an administrative matter, and appeal
A mode of appeal,
therefrom may be raised under rule 43.
continuation of the
Particular administrative agencies or quasi- proceeding that
judicial bodies must be brought to Office of the started below
president as way of appeal. A direct resort to CA (RTCs, MTCs)
via rule 43 on those agencies are improper.
Errors of Errors of exercise of
Q: What are the remedies available to ABS-CBN
jurisdiction – that jurisdiction. Grave
(recent controversy) after the issuance of cease
is a question of abuse of discretion.
and desist order of the NTC?
law. (Whether or
not the RTC has
A: Appeal to CA via Rule 43 petition for review.
jurisdiction) That
Not in the RTC, since NTC is a quasi-judicial
should be the
body who enjoys similar judicial rank.
subject matter of
petition under rule
Q: Can the CA decides, assuming that it has
45.
jurisdiction with the subject matter, pure
question of law?
111
Do not implead the Implead the judge Interlocutory orders (rule 65) there is a necessity
court who rendered who is the principal of complying with motion for reconsideration
the decision. respondent. In the rule before it is petitioned to the higher court via
process he only rule 65. Reason: Give opportunity for the court
becomes nominal who rendered the judgment to correct its own
respondent. judgment.
Reverse, modify Nullifies or sustains
the decision the order issued by
appealed. the court. (Decision Exceptions where SC under rule 45 takes on
CANNOT be rendered, question of facts
because the subject
matter here are mere (a) When the findings are grounded entirely
interlocutory orders). on speculation, surmises, or conjectures;
(b) When the inference made is manifestly
PGMA CASE mistaken, absurd, or impossible;
 Pgma was (c) When there is grave abuse of discretion;
charged in (d) When the judgment is based on a
sandiganbayan, misapprehension of facts;
she filed a (e) When the findings of facts are
demurrer to conflicting;
evidence (f) When in making its findings the CA went
consonant with beyond the issues of the case, or its
section 23 rule findings are contrary to the admissions
119. of both the appellant and the appellee;
Consequently, (g) When the CA’s findings are contrary to
the those by the trial court;
Sandiganbayan (h) When the findings are conclusions
denied the without citation of specific evidence on
demurrer. (SC which they are based;
should had just (i) When the facts set forth in the petition as
either denied or well as in the petitioner’s main and reply
sustain the order briefs are not disputed by the
denying the respondent;
demurrer) (j) When the findings of fact are premised
on the supposed absence of evidence
and contradicted by the evidence on
Rule 45 and 65 remedies are mutually exclusive
record; or
and not successive.
(k) When the CA manifestly overlooked
Some cases SC considered petitions under rule certain relevant facts not disputed by the
45 as rule 65, vice versa. parties, which, if properly considered,
would justify a different conclusion
112
Rule 45 review is a matter of discretion. So that RULE 38

the SC can examine the petition, if it finds
When available
unsubstantial errors it can summarily dismiss
1. Available only after
the petition.(thru minute resolution) NOTE:
(a) decision or final order from
minute resolution does not comply with the
which relief is sought has become final
requirements the decisions should be personally
and executory, and
written by a judge.
(b) loss of the right to appeal.
Copy of the petition under rule 45 must furnish
the adverse party. (take note of the efficient Not available where (a) a party has another
paper rule and electronic document rule that adequate remedy available him (motion for new
must be filed with the SC together with the trial or appeal) and (b) he is not prevented from
petition unless you filed it electronically and filing such motion or taking the appeal.
subsequent by a hard copy, non-compliance
therewith, the case may be dismissed) 2. Relief will not be granted when a party’s loss
of legal remedy is due to his own negligence
Pay docket fee.
or mistaken mode of procedure.
Proof of service. Take note when you executed
an affidavit of service it must be notarized. With Otherwise, petition will be tantamount to
proof of identity and address of the affiant. reviving the right of appeal which has already
been lost because of inexcusable negligence or
If petitions under rule 45 and 65 are filed merely
due to a mistake in the mode of procedure taken
to delay the execution of the judgment – the
by counsel.
counsel may be sanctioned.
No appellant’s brief under petition for review Filed in the same court who rendered the
under rule 42 and 45 judgments.
When you say “Given due course” = the court

Rule 38, Sec. 3. Time for filing petition; contents
finds petition proper for adjudication.
and verification.
RULE 53 NEW TRIAL in CA A petition provided for in either of the
preceding sections of this Rule must be
Only one ground exist (newly discovered
verified, filed within sixty (60) days after
evidence) as opposed to new trial under rule 37.
the petitioner learns of the judgment,
NOTE: a second MR under rule 37 prohibition is final order, or other proceeding to be set
NOT ABSOLUTE. In some cases, SC has allowed aside, and not more than six (6) months
several MRs filed. after such judgment or final order was
entered, or such proceeding was taken;
and must be accompanied with affidavits
showing the fraud, accident, mistake, or
excusable negligence relied upon, and
POST JUDGMENT REMEDIES the facts constituting the petitioner's
113
good and substantial cause of action or (a) within 60 days after learns of judgment,
defense, as the case may be. order or other proceeding to be set aside,
and
Not available when the right to appeal is still (b) not more than 6 months after judgment
available – if other remedies are available other or order entered, or such proceeding
than relief for judgment, then this remedy is taken.
NOT AVAILABLE.
Q: What is remedy when the petition for relief
Requisites: was denied for being unmeritorious.
(a) Fraud, accident, mistake or excusable
negligence A: Special Civil Action rule 65. NOT APPEAL.
- same meaning as those used as
grounds for new trial under Rule 37 Note: if the petition is granted, there would be a
(b) Presence of good and substantial cause trial de novo. The old judgment is vacated, just
of action or defense, as the case may be like in rule 37. There shall be a new judgment
- Affidavit of merit must accompany depending on the trial de novo outcome.
petition showing:
i. facts constituting fraud,
accident, mistake or excusable
negligence relied upon, and
ii. facts constituting petitioner’s RULE 47
good and substantial cause of
action or defense. (LAST RESORT, GRAND FATHER OF ALL REMEDIES
- Serves as jurisdictional basis for the – FEBLE, 2020) If the remedy under rule 38 still
court to entertain thepetition. available, this remedy is NOT AVAILABLE.
Exception- may not be necessary
Not filed in the same court who rendered the
i. Where decision is null and void
judgment. There are only 2 courts that
for want of jurisdiction,
entertains this remedy – the CA and RTC.
ii. Where a default judgment was
entered even before A new action not continuation of the rendered
petitioner’s time to answer had judgment.
expired, or
iii. Where applicant had no notice
Grounds for annulment
of the trial, etc.
1) Extrinsic fraud – aggrieved party must
show that he failed to avail of new trial,
NOTE: Under the amendments do not aver this
appeal, petition for relief or other
ground because under the amendments, in pre-
appropriate remedy due to extrinsic
trail parties have been notified of dates of trials.
fraud done against him.
Time for filing –
114
Petition must be filed within four (4) May 7, 2020

years from discovery – anaction based on
fraud prescribes in 4 years. Rule 39: Execution, Satisfaction and Effects of
Judgment
NOTE: if under lack of jurisdiction and
due process – grounds are The judgment referred to under Rule 39 is not
imprescriptible. (walang limit na 4 years limited to domestic judgment but also include
to file However, subject to estoppel or foreign judgment. If you notice the last section
laches.) of Rule 39 is exclusively devoted to a foreign
judgment, section 48 of rule 39 speaks of the
2) Lack of jurisdiction - judgment rendered effects of foreign judgment.
without jurisdiction is null and void.
Of course as a rule, if it is a foreign judgment
that judgement cannot automatically be the
Petition filed before it is barred by laches
subject of execution except only in special
or estoppel. While a void judgment due
proceedings consonant to the jurisprudence laid
to lack of jurisdiction is imprescriptible,
down by the Supreme Court specifically in a
the declaration of its nullity may be
Fujiki vs. Marinay.
barred by laches or estoppel.
So, if you have with you a foreign judgment you
3) Lack of due process(jurisprudence, wala take this with emphasis that such judgment
sa grounds under codal) must first be recognized. For example, in a
Foreign Arbitral Award, that award cannot be
enforced and satisfied by simply going to the
sheriff’s office and asking the sheriff to execute
that award.
Under our Arbitration Law, that award,must be

first be recognized and you need to file special
proceedings that is a proceeding for the
enforcement of Arbitral Award and file in the
Regional Trial Court and after the court granted
that petition, that court may now issue the writ
of execution.
So, apparently what is involved for the purposes

of the execution of a final and unappeallable
judgement is the necessity for the issuance by a
court of a writ of execution, because execution
is for the purposes of satisfying a judgement.
115
Now with respect to domestic judgement, have good reason for the execution for that
execution may be made as a matter of right or judgment. For example, the judgment obligor in
as a matter of discretion. fraud of the judgment obligee or his creditor,
commences to dispose of his property so that
Rule 39 is clear that a judgment which is final the judgment against him may be rendered
and unappeallable can be executed if a motion ineffectual or for example he is on the verge of
for execution is filed within a period of 5 years, becoming insolvent, bankrupt or where the
after 5 years apparently a writ of execution can subject matter of the judgment involves a
no longer be issued as a rule. specific property that is perishable.
But, there is are exceptions to this and this is a As a rule only the court that rendered that
matter of right. After 5 years you need to file an judgment can issue that writ of execution.
action to revive that judgment provided that it is However, as we have said where the case is
made within a period of 10 years. pending appeal and the records of the case still
remains with that court although the appeal has
After 10 years that judgment prescribes, it can
been perfected that court may still issue a writ
no longer be enforced. So you are talking of five
of execution.
years from finality of a judgement where a court
may issue a writ of execution and after 5 years During appeal the appellate court may also order
to revive that judgement, so that another 5 year the court of origin to issue a writ of execution
would be given to the judgement obligee within for same reason, good reason.
which to enforce the judgement.
So not only would the judgment obligee has that
Now the exception to this is that beyond the five forum which is the trial court rendering the
years after the writ was issued, can still be judgment to issue the writ but also the appellate
executed if the delay or the non-enforcement of court although the rule says that the appellate
that writ of execution was caused by no less by court will issue an order directing the trial court
the judgment obligor, if he himself had caused or the court of origin for the issuance of the writ
the non-execution of that writ of execution of execution.
within five years and the five year period had
lapsed that execution can proceed even beyond Now, we are talking here of a final and
the five year period. unappeallable judgment, however, if you go
directly to Sec. 4 of Rule 39 there are judgements
Now, if it is a matter of discretion that means the which are immediately executory, four classes of
judgment is not yet final and unappeallable the actions where the rules expressly provides for an
court upon the motion of the judgment obligee immediate execution of judgment rendered in
for good reasons may issue a writ of execution those cases.
to enforce the judgment.
- There are judgment in actions for
You have to convince the court during that injunction, receivership, accounting and
period where appeal is still available to the support.
losing party or the judgement obligor that you
116
You don’t talk good reasons, you don’t talk that ends everything, judgment in an injunction
about satisfying this court that there is good case, an injunction which orders the defendant
reasons to allow, to proceed with execution to avoid an act or the prohibitory injunction,
immediately after the judgment has been dismissal of an action without any other orders
rendered because by express provision of the thereon such as payment of cost, damages, etc.
rules, in cases of injunctions, receivership,
accounting and support the judgment rendered Now, you have the writ of execution with you, it
by the court thereon is immediately executory, was not satisfied in full and the 5 years had
you don’t even have to show to the court that already lapsed, can you still enforce that writ of
you know the obligee is on the verge of being execution? Yes, you can still execute beyond five
bankrupt, he is doing fraudulent disposition of years. The prohibition provided for that five
his properties, simulated conveyances, etc. years is simply limited to issuing the writ of
because by express provision of law there is that execution. When a writ is issued but not satisfied
authority that such judgment rendered in these in full or not satisfied all whether partially or
four cases be immediately executed fully, by reason of attributable to judgement
obligor that can go beyond five years, there can
When execution is a matter of right, and the be continuing execution.
motion of the judgment obligee for the issuance
of the writ of execution is denied what is the MONEY JUDGMENT:
remedy of the movant judgment obligee?
Garnishment is when a sheriffexecutes a writ
- The remedy available is mandamus in
against a third party pertaining to personal
order to compel that court to issue
properties, such as bank deposit, share of
because it becomes an unmistakable right,
stocks, royalties, patents or credits. On the other
there is no amount of discretion in which
hand levy on execution is the enforcement of a
the court can exercise a moment a right is
judgment against a specific real properties. But
vested upon a person as a matter of law
it does not necessarily mean that the property
and there is a refusal to perform a duty
only in possession of the judgment obligor.
under Section 3 Rule 65 a writ of
mandamus can be issued. However it is a rule properties owned or
belonging to the judgment to obligor, the rule is
Can there be a judgment assuming that it has that you cannot enforce or cannot collect
attained finality, there is nothing or there is no something from persons who is not the debtor
act that could be required or enforceable? Are or who is not the judgment obligor, more so who
there instances where a judgment not even is not the party to the action, because a
requires something to be done? Yes. judgment affects only parties to the action and
their successors in interest or his heirs,
An example of this are in cases of judgement executors, administrators.
declaring null and void ( may gagawin pa ba
dun?..wala!) the pronouncement of the court Can you execute against a property which is
satisfies the necessity that is favorable to a party currently in CUSTODIA LEGIS?
117
For example, you have a property which is damages, decreed by the court to be paid to the
already subject of a preliminary attachment, judgment obligee including costs.
pursuant to a pending case in another court of
concurrent jurisdiction, you have a car, truck or Now the procedure of course is for the sheriff is
a parcel of land which was garnished or levied to first serve thatwrit and the losing party on
pursuant to a writ of preliminary attachment which the writ is being served has the obligation
pursuant to Rule 57, can execution be made and the choice to immediately pay the sheriff in
against these properties? money (kasi money judgement). Money here
refers to legal tender recognized by the
A writ of preliminary attachment does not government.
necessarily prohibits execution against that
property as a consequence of a writ of execution Can that judgement obligor pay with checks?
issued by another court that can be subject of
- The Supreme Court ruled that checks are
execution however if it is levied upon or
not of legal tender.
garnished by virtue of a writ of execution that
can only constitute as a second lien this does not
Suppose he pays with a cashier’s check can the
amount as an interference to another judicial
sheriff refuse because it is not of legal tender,
proceeding in another court ( mag may mature
unless the creditor accepts the cashier’s check
lang) provided, that if it is a real property,just
or manager’s checks?
like levy on execution, the levy on attachment
must be duly registered with the Registry of Under the NIL checks are a special kind of a bill
Deeds, so that is the order of preference. Even of exchange. A cashier’s Check or manager’s
with respect on levy of a real property that must check is issued by the bank, signed by the
also be registered with the Registry of Deeds, if cashier or by the manager of that bank and is
not registered that is invalid. made payable by that bank, it is ordered payable
by that bank, it is the liability of the bank, in
However, in the writ of Replevin, once that
contrast if it is a certified check it is a check
property is subjected to a writ of replevin, that
issued with the bank as the drawer and duly
property cannot be the subject of another
certified by that bank that a sufficient funds is
garnishment, that distinguishes attachment
allocated for the check issued with the bank as
from replevin.
the drawee.
SATISFACTION AND EXECUTION OF SIMPLE The rules provide that a cashier’s check tendered
MONEY JUDGMENT as a payment of a judgment obligation,
judgment debt cannot be refused in only an
Necessarily if it is a money judgment, all that is
instance where these kinds of checks would be a
needed is the payment of the judgment
valid payment of an obligation, that is if the
obligation. Satisfaction of the amount of money
judgment obligor voluntarily complies and pays
decreed by the court which the judgment which
his obligation under this judgment.
the judgment obligee is entitled to recover,
whether it is actual damages, or any kind of
118
But suppose the judgment obligor refuses to But while these properties listed in Sec.13 of
pay? Rule 39 are expressly exempt from execution
the proceeds out of these properties, if sold for
- The sheriff can proceed to levy upon the example are not exempt from execution, what is
properties of the judgment obligor, he can exempted is the matter of executing a
serve a notice of garnishment or execution judgement over the property.
with garnishment with the property, but of
course the first preference is money. When execute returned unsatisfied, Sec. 36 Rule
39 provides a remedy for the judgment obligee
But is there a preference provided by law by and this remedy assuming that he has
which the sheriff can proceed against any of the information or suspicion that certain credits and
properties of this judgement obligor? certain obligation is due against a judgment
obligor from a third person, a stranger to the
Yes, the sheriff should first exhaust the personal
action of properties hid by him (tinatago lang),
properties and if insufficient he can then levy
the remedy there is to examine these persons (
upon the real properties.
these includes both juridical and natural
persons) to determine whether there are
Can this judgment obligor , he has no cash, tells
properties, assets or moneyowing to the the
the sheriff or can that judgment obligor exercise
judgment obigee.
his choice?
So a motion can be filed by the judgment obligee

Yes, the obligor has the option which property
that would order the examination of that person,
he wants to levy upon and also exercise the
in the same court where the action was decided,
preference to what kind of property he prefers to
the court that issued the writ of execution. In
or makes as payment for the satisfaction of that
pursuit of this examination the person ordered
judgment.
to be examined must be required to produce
Suppose the judgment obligor says, “itong certain documents in pursuance for this order of
family home nalang namin”, can the he do that, examination he may be required to produce
can the sheriff refuse? Yes, the sheriff can validly documents.
refuse because as stated in Sec. 13 of Rule 39,
Can all persons be subject of examination
the obligor’s family home is among the ones
pursuant to sec.36 of rule 39?
stated as exempted from execution unto to the
extent which the law provides for the family to
No, the power of that court to require such
which it can be exempted from execution (Civil
persons to appear before it for examination
Code and Family Code).
pursuant to Sec. 36 of Rule 39 is limited to
persons within a province. If he is residing
Among the properties listed in sec.13 as
outside the province, no more.
exempted in executon, unless of course in the
case of a homestead or a patent, a period of after
Now you have here a decision decided in Quezon
five years that can be a subject of execution.
City, a supposed person suspected of having
assets owned by the judgment debtor or obligor
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is in Batangas and since this court in Quezon City the sheriff subject the funds of the City
cannot compel the person residing in Batangas government to garnishment orsuppose it is the
to come to Quezon City and be subjected to Republic of the Philippines which is adjudged to
examination, what is the remedy for the be paid, can the sheriff garnish the funds
judgment obligee? The remedy of the judgement through the treasurer of the Republic of the
obligee is to file a separate action in that area, Philippines?
file a petition for examination in the area where
it is located. Can the bank be required to retain such amount
of money ordered to be paid as a consequence
What is Terceria? A terceria is a third party claim, of garnishment made by that sheriff and when
it is not an adverse claim. It is a claim by a so ordered will release the money of the City
person, who is a stranger to the government to the judgment obligee?
action. This claim is is by a third person If it is a government funds you cannot subject it
presented in court involving a property that has to garnishment as long as it is in the hands of
been a subject of levy or garnishment so he is the official depositary remains and retains as a
claiming ownership, it is an affidavit of a third government funds.
party claim executed by a person who claims
ownership or interest over a property which has So, what will be your remedy? In all those cases,
been a subject of execution made by the sheriff, the judgment should be first be filed with the
property in the hand of the sheriff and therefore commission on audit. In contrast if it is say a
deemed in custodia legis. So, he is claiming that GOCC their funds retains the character of being
he is the owner of the property mistakenly levied a private funds and since they have the legal
upon by the sheriff or garnished by the sheriff. personality of juridical personal on their own
This affidavit is filed to the sheriff and to the their funds are subject to garnishment, but not
judgment obligee and the rule says that once with the government funds, including the
this affidavit is filed with the sheriff, that sheriff agencies, instrumentalities, where that funds
under no obligation to hold the property, he still considered as government hence cannot be
must release the property and the only way by subject to garnishment.
which the sheriff could be compelled to continue
The third party claim can be prevented by way of
holding this property under levy is for the
an indemnity bond and without indemnity bond
judgement obligee to file an indemnity bond.
the sheriff can release the property under his
But if the Republic of the Philippines is claiming custody by reason of equity.
over that property subject of execution the bond
Suppose the terceria filed is denied, the remedy
is not required, the sheriff can hold on to that
for the third party claimant is to fie an
property because of the presumption which is
independent in order to establish a claim and
not correct that the State is always solvent.
vindicate his rights or separate action. But if the
The defendant which is the judgment court ruled that he is the owner, that finding of
obligorwhich was the City of Manila was the court is not binding and final, that is only
adjudged to pay a sum of 10 million pesos, can
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limited for purposes of determining the What are these specific acts that may be subject
propriety of third party claim or this terceria. of writ of execution as far as specific judgments?
These are delivery of property and conveyance
So, you need to file an independent action to whether it is real or personal property.
establish your ownership or title over the
property which has been subject of execution In cases of ejectment, the specific acts being
because the court that issued the writ of directed to be performed is to order the
execution has no jurisdiction over issue of defending party to vacate and deliver the
ownership that would finally settle who is the possession peacefully to the winning plaintiff.
real owner or true owner of the property being
claimed by the third party more so because the If it is conveyance, the acts involved is transfer
third party claimant, stranger is not a party to of ownership, if it is a real property, execute first
that action, so you need to go to another court a Deed of Sale which is duly notarized for the
and file for an independent action for that purposes of registration, but it is valid between
purpose in order to vindicate your rights for the parties.
purposes of a property subject to terceria.
However, what is the remedy if the other party
Compared to an adverse claim which is a sworn does not want to execute a Deed of Sale upon a
statement or an affidavit and pursuant to PD valid writ of execution (may judgment ka na)?
1529 is made by a person claiming interest over
Under Sec. 3(f) of Rule 71 provides that failure to
a registered property which is duly filed within
obey a lawful of court constitutes an indirect
the register of deeds (kung may kayo man o
contempt, so one should file for indirect
wala…ifile Nya yan sa RD), and that adverse
contempt (dahil yaw Nya) or ……….( nag lag is
claim has a specific term or life after which it can
sir / choppy internet)……..as against sec. 11,
be legally extinguished (90 days lang yan) but
section 10 can be delegated by the court to any
not a Terceria which is judicial proceedings.
person the usual person that can execute this
In summary, money judgment can be an outright action is the branch clerk of court of that court
payment in money which is of legal tender, a will execute that document but that document
voluntary payment either in money of legal must state that this Deed of Sale is executed
tender or by cashier’s check which the sheriff pursuant to the order of the court which after
cannot refuse or involuntary by executing a execution would have the same effect and valid
judgment over the properties of the judgment as if executed by the judgment obligor.
obligor which are not exempt from execution or
If the judgment is a sale of a certain property
otherwise not government funds and of course
then the sheriff must sell these properties
there is always the instances wherein terceria
ordered by the court to be sold, but the sheriff
may be filed.
cannot sell these to anybody he wants, it can
SPECIFIC JUDGEMENTS only be done through a public auction and if it is
a real property ordered to be sold, it must be
Judgments which would require specific acts to published.
be done by the judgment obligor.
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Furthermore, the sheriff cannot remove any There are several person there that can effect
improvements, demolish or destroy the said redemption, principally the judgment debtor,
property to be sold unless it is allowed or successors in interest and creditors. There could
ordered by the court. even be a second redemption, for example a
creditor who was the one who effected
So, under sec.11, this is a special kind of redemption then the judgment obligor could
judgement and unlike under sec.10 this redeem from that creditor the property sold in
authorizes contempt as a remedy if the auction but no longer one year. When we are
judgment of obligor refuses to comply. talking of successive redemption in accordance
of sec.28 of rule 39, the period is no longer 1
REDEMPTION
year but only 60 days.
After the sale of property subject of the writ of

Now you have read, sec.27, only real properties
execution, can the there be a right of
can be subjected to redemption and the one year
redemption over all properties sold at auction,
period within which the law provides for that
under Rule 39?
right to be exercised commences to run.
No, only real properties can be validly redeemed.

Suppose it is an action to foreclose a real
There is a one year redemption period provided
property, and the foreclosed property was sold
for under Rule 39, which is redemption is simply,
to public auction, is there also a right of
the right of the judgment debtor to buy back
redemption? Yes and he has 1 year to redeem
from the purchaser of the property sold at public
such property——nag lag—— where that
auction as a consequence of execution made by
property is registered, for what purpose? For
the sheriff
registration ( para iannotate yung Certificate of
Deed of Sale sa likod ng titulo), one year from
Section 27. Who may redeem real property so
that date there could be redemption may be
sold. — Real property sold as provided in the last
exercised by those persons under these rules
preceding section, or any part thereof sold
and particularly section 27 to redeem that
separately, may be redeemed in the
property. Now, if it is a property sold at auction
mannerhereinafter provided, by the following
as a consequence of foreclosure of real property
persons:
mortgage has also 1 year for redemption.
(a) The judgment obligor; or his successor
May I call your attention to Rule 68, special civil
in interest in the whole or any part of the
action for foreclosure of Real estate mortgage. If
property;
it is an auction, as a consequence of an action to
(b) A creditor having a lien by virtue of an
foreclose a real estate mortgage pursuant to rule
attachment, judgmentor mortgage on
68 as opposed to Rule 39, there is no right of
the property sold, or on some part
redemption, what is provided to the judgment
thereof, subsequent to the lien under
obligor is merely an equity of redemption which
which the property was sold. Such
is different from the right of redemption.
redeeming creditor is termed a
redemptioner. (29a)
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That equity of redemption is given is not less you talk of consolidation of title as provided
than 90 days but not more than120 days within under the Civil Code, the action is provided
which the judgment obligor the mortgagor can under the last paragraph of sec.1 Rule 63.
redeems such properties sold at auction.
Section 1. Who may file petition. — Any person
Do not confuse yourself with the idea that interestedunder a deed, will, contract or other
because you’ve read sec. 27 and 28 of rule 39, written instrument, orwhose rights are affected
that a redemption is available to all properties by a statute, executive order or regulation,
sold at public auction because if it is an action ordinance, or any other governmental regulation
for foreclosure of a real estate mortgage which may, before breach or violation thereof bring an
resulted with the sale at auction, that real action in the appropriate Regional Trial Court to
property, there is no right of redemption but determineany question of construction or
only equity of redemption and the period is not validity arising, and for adeclaration of his rights
1 year but a period of not less than 90 days but or duties, thereunder. (Bar MatterNo. 803, 17
not more than 120 days within that period given February 1998)
the mortgagor who is the judgment obligor may
effect redemption of the real property sold in an An action for the reformation of an instrument,
auction. to quiettitle to real property or remove clouds
therefrom, or toconsolidate ownership under
Take note that Rule 68 is exclusively devoted to Article 1607 of the CivilCode, may be brought
foreclosure of real estate mortgage, in other under this Rule. (1a, R64)
words, there is no such animal as a judicial
foreclosure of movable property. If what is Among similar remedies, under Rule 63 in
involved is a movable property, you go to extra- addition to declaratory relief under the first
judicial foreclosure or Act 3135. paragraph of sec. 1 rule 63, you have to file an
action in the RTC for purposes of consolidating
Now, we are talking of redemption here, so if your title over your property sold to you. Now if
redeemed, naturally the property goes back to you have already the certificate of Deed of Sale,
the FORMER owner, there shall be restitution of do you need to file an action of consolidation
the property. pursuant to sec. 1 of rule 63, in order that a new
title will be issued in your name and the old title
But suppose there is no redemption what follows be cancelled? No, it is not necessary to file for an
next is consolidation of title or ownership to the action for consolidation.
buyer at auction in the name of that buyer in the
auction sale because he has in his name, in his An action for consolidation applies only in SALE
favor the certificate of sale. A RETRO or VENDO A RETRO, is a right to
repurchase ( binenta ko pero dun sa titulo may
So we have to now the procedure of karapatan akong tubusin yan, so may right to
consolidation title. In your Civil Law, there is that repurchase) within a specific period, now, after
action for consolidation of title, the fact is if you that period the right to repurchase is lost.
go to Rule 63, it is a special civil action for
declaratory relief and similar remedies. When
123
Now, can you ask the RD to register that and In case of non-satisfaction or partial
cause the cancellation of the old title, so that satisfaction, the moment it is return is filed by
thenew title under your name will be issued? the sheriff, what is the remedy of the judgment
obligor? His remedy is file a motion for the
You cannot because there is a necessity or a issuance of an alias writ of execution.
need for a judicial declaration that the right to
repurchase is already lost, so an action for While the writ of execution does not expire or it
consolidation of title, is limited to and applies may expire for 5 year period where that return
only to cases of sale with right to repurchase it has been filed by the sheriff assuming that it was
does not apply to sale at auction. not satisfied or partially satisfied the remedy
available for the judgement obligee is to file a
The action of consolidate title is confined to motion for an issuance of an alias writ of
judicial determination that the right to execution and once issued it should be also
repurchase has prescribed. executed in the same manner whereas the
original writ of execution was issued with the
same efficacy and validity as the original writ of
execution.
ENTRY OF SATISFACTION OF JUDGMENT
Assuming that the judgment has been satisfied,

is there a duty on the part of the sheriff of a
EFFECTS OF JUDGMENT
judgment obligor to make a report respecting
the satisfaction of this judgement or even when What are the effects of domestic judgement?
the judgment is not satisfied fully?
Take note of 2 rules under section 47, an
In cases of partial satisfaction or non- important rule, the first rule is the of bar by prior
satisfaction of judgment there is duty upon the judgment and the second is the conclusiveness
sheriff to make a return of the writ of execution. of judgment or the doctrine of res judicata.
There is that duty under rule 39 upon the sheriff Under section 47, the provision provides for the
to report to the court what happened tothe writ effects. First as to the effect of the specific thing
of execution that he enforced, whether it is involved in the decision which has been
satisfied, not satisfied or partially satisfied. executed conclusive as to the title thereof, take
note conclusive, simply means it is not
If it is satisfied because of voluntary payment
susceptible of any rebuttal.
made, to the judgment obligee, there has to be
an acknowledgment that should be made or Now with respect to probate of a will or
executed by the judgment obligee which will administration of the estate of a diseased
soon thereafter should also be submitted to the person, the rule provides that it is conclusive
court attesting to the fact that thesame is upon the will or administration, this presuppose
satisfied. a probate proceeding not intestate, there is a will
which has been duly probated as well as the
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subsequent issuance of letters testamentary or status or relationship of such person, the effect
letters administration. of such judgment is conclusive.
Now these documents and issuances, serves as BAR BY PRIOR JUDGMENT AND CONCLUSIVENESS
a prima facie evidence however if the issue OF JUDGMENT
involves pertains to the death of the testator,
means disputable. But as far as the probate will In conclusiveness judgment, with respect to the
as well as the administration of his estate, that same parties, including their successors in
is conclusive. interest, matters adjudicated between them or
those which have been included which have been
The difference between Letters testamentary decided with finality by a court, matters
and Letters administration. adjudicated and those which are actually and
necessarily included in those matters decided by
Section 47 speaks of probate, a letter a court of competent jurisdiction can no longer
testamentary is one issued by the court to a be relitigated.
person to administer the estate of the testator of
the decedent, a person who has been named or In contrast, if it is bar by prior judgment, matters
designated by the testator in his will and directly adjudged or matters that could have
appointed by the court, so, you have the raised in relation thereto are conclusive between
executor. the parties and successors in interest. In a right
fact or matter which in issue or which is directly
The letters administration in contrast is the adjudicated upon or those necessarily involved
authority to administer the estate of a person, a in determination of an action by a competent
decedent, because the proceedings is intestate, court is conclusively settled by that judgment of
meaning there is no will, but there could also be final order.
a letters administration but the proceedings is
probate, meaning there is a will, this results
because the person designated or made by the
testator in the will to act as his executor was In foreign judgment (sec. 48, Rule 39), any
disqualifiedor refuses to accept as his judgment rendered outside our jurisdiction is a
appointment. foreign judgment. The enforcement of this
action, is an action to to recognize this judgment
So, the authority that was issued by the court in in order to determine its validity and effectivity.
such testate or probate proceeding is letters
administration with a will annexed. So as far as Once determined by our local courts, the effect
the death of the testator it is not conclusive but of the foreign judgment upon the specific thing
merely prima facie. is conclusive upon title to that property or thing
and it is a presumptive evidence, when you say
Now with respect to personal, political, legal presumptive it can still be rebutted.
condition of a status of a particular person where
it is also conclusive if it pertains to the condition, In both instances the judgment may be repealed
by evidence that means it could still be
125
questioned, whether it is against a specific thing May 12, 2020

or against a person, that judgment can still be
questioned can be repealed, it can be rebutted.
Q: What are the Provisional Remedies (THESE
If one is filing a recognition that could lead to REMEDIES ARE EXCLUSIVE)?
the enforcement of a foreign judgment, a person
who is a party in interest can oppose that and A: There are five (5).
the ground that he can possible invoke are want [1] Rule 57- Preliminary Attachment;
of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact ( [2] Rule 58- Preliminary Injunction;
last paragraph of Sec. 48 Rule 39).
[3] Rule 59- Receivership;
As a rule, there can’t be an automatic and a [4] Rule 60- Replevin; (used to be known as
direct enforcement that could be made in so far Delivery of Personal Property) and
as a foreign judgment is concerned you need to
[5] Rule 61- Support Pendente Lite
file an action for recognition for the completion
of that foreign judgment and in that proceedings [6] Deposit (Reyes v. Lim) – Deposit in cases of
opposition to be filed who are real parties in Rescission of contract to require the seller to
interest by invoking any of those grounds place the amount paid by the buyer by way of
provided. downpayment as deposit under the principle of
unjust enrichment.
That recognition applies even to Arbitral Awards
(RA 9285: Alternative Dispute Resolution Act of There the SC said that the hiatus of a
2004) provides to us the confirmation to such situation arising from a contractual
arbitral awards and this is a special proceeding relationship of seller and buyer. If the
which has to be filed in the RTC and that RTC situation appears that there is
after confirming that arbitral award may issue a connivance between the seller and the
writ of execution. occupant or the tenant of the property
that deprives the buyer of the property.
Now if you examine however, the cases in special And subsequently, the seller sold the
proceedings that started with Fujiki vs. Marinay property to another entity that likewise
and subsequent cases the latest of which is would make impossible to proceed in
Republic vs Manalo, the Supreme Court their contract of sale. So when the action
recognizes a direct resort to a special reach the court, the buyer ask the court
proceeding for correction of entries under the to require the seller to deposit in court
Rule 108 to effect the change of a status of a the amount by which he has paid by way
person from married to divorce without first of downpayment as deposit. Of course,
filing an action for recognition of a foreign the seller objected because under the
decree rendered by a foreign court. so, these are rules of court there is no such provisional
the exceptions in so far as Rule 108 of the ROC. remedy of deposit. BUT SUCH SITUATION
NECESSITATE THE REMEDY OF DEPOSIT.
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BUT THERE ARE SEVERAL REMEDIES WHAT ARE THE GROUNDS FOR PRELIMINARY
FOUND IN DIFFERENT RULES SUCH AS in ATTACHMENT?
support, Habeas data, TPO, Writ of
Section 1. Grounds upon which attachment may
Amparo.
issue - At the commencement of the action or at
any time before entry of judgment, a plaintiff or
any proper party may have the property of the
Why are these called provisional?
adverse party attached as security for the
Because these are measures which could be satisfaction of any judgment that may be
applied for during the pendency of the action recovered in the following cases:
and generally these provisional remedies, being
interim (in the meantime while we are waiting for (a) In an action for the recovery of a
the decision), a party can secure from the court specified amount of money or damages,
such provisional remedy. The purpose of which other than moral and exemplary, on a
is to secure the judgment that may be rendered cause of action arising from law,
in that action. In the meantime, we have contract, quasi-contract, delict or quasi-
provisional remedies. delict against a party who is about to
depart from the Philippines which intent
Generally, you apply for these remedies prior to
to defraud his creditors;
judgment, for example, in an action for
(b) In an action for money or property
injunction before actions where the judgment is
embezzled or fraudulently misapplied or
immediately executory, necessarily you can only
converted to his own use by a public
apply for preliminary remedies or interim reliefs
officer, or an officer of a corporation, or
because as soon as judgment is rendered by that
an attorney, factor, broker agent, or
court, the judgment should immediately be
clerk, in the course of his employment as
executed.
such, or by other person in a fiduciary
So let us go through preliminary attachment. capacity, or for a willful violation of duty;
Under Section 1 of Rule 57. The RoC, for (c) In an action to recover the possession of
purposes of application of Preliminary property unjustly or fraudulently taken,
attachment provided us the grounds. Note that detained or converted, when the
while these grounds exist, in addition to these, property, or any part thereof, has been
it must be emphasized that THERE MUST BE A concealed, removed, or disposed of to
SUFFICIENT CAUSE OF ACTION, necessarily, prevent its being found or taken by the
there is no legal basis for an attachment to be applicant or an authorized person;
issued for purposes of attaching the property of (d) In an action against a party who has been
the adverse party. guilty of a fraud in contracting the debt
or incurring the obligation upon which
Because the purpose of the writ of preliminary
the action is brought, or in the
attachment is to secure a favorable judgment
performance thereof;
which would eventually be issued or rendered by
(e) In an action against a party who has
the court in favor of the party applicant.
removed or disposed of his property, or
127
is about to do so, with intent to defraud mo sa aking sukli. It turns out that the Cert of
his creditors; or title is forged. So with this development, the
(f) In an action against a party who does not creditor filed an action against you for the sum
reside and is not found in the Philippines, of money. In the creditor’s complaint, he applies
or on whom summons may be served by for preliminary attachment. Is there a proper
publication. ground? YES. Because there is fraud in the
Basically the grounds are not confined to the performance of the obligation.
amount being sought to be collected for
In contrast, the forged or fake title was used to
damages embraces actual damages. In fact,
secure a loan that is fraud committed prior to or
there is a ground that is intended purely for
simultaneous to contracting an obligation. But in
damages. But the damages sought must be
the first instance, it was fraud committed in the
liquidated and determined. You must first
performance- tapos na yung utangan, sa
determine how much.
pagbabayad na. The fraud has been committed
You will note that 5 out of these grounds at the time the loan is being tendered.
includes fraud. Just like swindling, there must be
WHAT ARE THE REQUIREMENTS IN ORDER THAT
attendant frud except on y in action where
AN ACTION FOR PRELIMINARY ATTACHMENT
adverse party I a nonresident defendant and who
WOULD BE GRANTED?
cannot be found in the PH and for that purpose,
served with summons by publication. 1) You must have any of the grounds stated
in Section 1.
In Section 1 (d) Before the amendment, I am
2) You must have a sufficient cause of
referring to fraud attendant to contracting the
action
debt, after the amendment, “fraud in the
3) You must post a bond
performance thereof” is added. Because in
4) You must execute an affidavit.
estafa, as you will recall, that fraud must be
existing prior or simultaneous to contracting an What is that affidavit all about, could that
obligation. If the fraud was used after the affidavit be dispensed with if the supposed
obligation was contracted, there cannot be contents of the affidavit is already alleged in
estafa anymore, but as of now, for purposes of your complaint? OF COURSE. THERE IS NOTHING
securing preliminary attachment, a mere fraud in TO EXECUTE ANYMORE WHEN ALL THE
the performance of an obligation would SUPPOSED CONTENTS OF THE AFFIDAVIT ARE
precipitate a grant of preliminary attachment. ALREADY PLEADED IN YOUR COMPLAINT IN THE
APPLICATION FOR PRELIMINARY ATTACHMENT.
EXAMPLE: you borrowed money from your
neighbor, 1Million, when the debt becomes due, Bond is imperative and indispensable for
you said you have no money but you have a purposes of preliminary attachment. You cannot
property so you delivered to your creditor your execute that writ unless a bond is posted for
certificate of title. Your creditor accepted your purposes of preliminary attachment executed in
certificate of title. Sabin g debtor, okay ibenta favor of the adverse party against whom the writ
mo na yan para makabayad ako sayo at kung will be issued or executed AND in the amount
may kulang, bayaran pa kita kung sobra bigay which the court may fix or in the amount
128
equivalent to the principal claim in the complaint may be issued at the same time to the sheriffs of
or in the amount equivalent to the property the courts of different judicial regions.
which is alleged to have been in ___ in fraud of
Now, there are two orders here that would be
creditors. SO this amount shall be the amount of
given by the court.
the bond which has to be posted.
1) The order granting attachment and
Now, Preliminary attachment as opposed to
subsequently, the writ of attachment.
injunction, may be applied or granted at any
stage of the action. Being dependent to the
In preliminary attachment, unlike
principal action, it can be applied at the time the
injunction, it can be heard and granted ex
complaint is filed and for preliminary
parte. The reason is that to bar Preliminary
attachment, even after judgment has been
attachment hearing and issuance of an
rendered (prior to finality of judgment). The
order granting the same without hearing
court where the principal action is pending can
would necessarily defeat the purpose of the
grant preliminary attachment in contrast, if it is
writ subsequently issued by the court
injunction, assuming that it is a provisional
because for purposes of attachment it is to
remedy or injunction as a principal action, it can
secure a party of a judgment that may be
be applied only before judgment. The reason is
rendered to him in the action. So as to
because in injunction, the judgment
preventthe adverse party from either
subsequently rendered is immediately
disposing his property o defeat the writ or
executory.
the purpose of the writ which is to secure
CAN THE CA AND SC GRANT PRELIMINARY property or money to satisfy a future
ATTACHMENT? judgment.
YES. Under Sec. 2. Issuance and contents of

Binigyan mo ng notice yan, so maghhearing
order. An order of attachment may be issued
tapos habang naghhearing bbenta na nya
either ex parte or upon motion with notice and
lahat ng ariarian nya because this person is
hearing by the court in which the action is
a swindler, wala ka nang makukuha after 10
pending, or by the Court of Appeals or the
years litigating in court, there is nothing left
Supreme Court, and must require the sheriff of
that would insure the satisfaction of
the court to attach so much of the property in
favorable judgment which the court may
the Philippines of the party against whom it is
render in that principal action.
issued, not exempt from execution, as may be
sufficient to satisfy the applicant's demand, So it can be heard, or granted ex parte. However
unless such party makes deposit or gives a bond class, take note that the writ of attachment
as hereinafter provided in an amount equal to which the court (branch COC specifically not the
that fixed in the order, which may be the amount judge) will subsequently issue (such is issued
sufficient to satisfy the applicant's demand or only after satisfying the bond required in favor
the value of the property to be attached as stated of the adverse party against whom the writ is to
by the applicant, exclusive of costs. Several writs be executed to answer for any damage/s which
the adverse party may suffer as a consequence
129
of attachment should there be damage is the subject matter of the action. Once
consequential with the execution of the writ of jurisdiction is acquired over the res, the writ can
attachment.) be enforced.
Only after the approval of that bond posted Sec. 5. Manner of attaching property —The
should a writ of preliminary attachment could be sheriff enforcing the writ shall without delay and
issued by the branch clerk of court. with all reasonable diligence attach, to await
judgment and execution in the action, only so
Once issued, this must be served together with
much of the property in the Philippines of the
the complaint, summons, order granting the writ
party against whom the writ is issued, not
and the copy of the bond. The requirement of
exempt from execution, as may be sufficient to
the rules is that this writ cannot be executed
satisfy the applicant's demand, unless the
unless jurisdiction is acquired over the adverse
former makes a deposit with the court from
party either prior to at the very least
which the writ is issued, or gives a counterbond
contemporaneously with the writ of attachment.
executed to the applicant, in an amount equal to
EXCEPT in cases where the ground is the last the bond fixed by the court in the order of
ground provided under Section 1 of rule 57. attachment or to the value of the property to be
Because the defendant is outside the Philippines. attached, exclusive of costs. No levy on
He is a non-resident defendant. You cannot attachment pursuant to the writ issued under
serve upon him.. So if the writ of attachment for section 2 hereof shall be enforced unless it is
example is issued against husband and wife who preceded, or contemporaneously accompanied,
was made defendant, there is a necessity by service of summons, together with a copy of
therefore pursuant to the amendment to the the complaint, the application for attachment,
rules that each of the spouses must be served the applicant's affidavit and bond, and the order
for purposes of acquiring jurisdiction over them. and writ of attachment, on the defendant within
the Philippines.
SO the writ can be issued prior to or at the very
least, contemporaneous with the service of The requirement of prior or contemporaneous
summons. service of summons shall not apply where the
summons could not be served personally or by
This has been the long standing jurisprudence if
substituted service despite diligent efforts, or
you look at the cases decided by the SC. One of
the defendant is a resident of the Philippines
it is Davao Light and Power Inc. vs CA . Now, I
temporarily absent therefrom, or the defendant
said one of the XPN to this prior or
is a non-resident of the Philippines, or the action
contemporaneous service is where the
is one in rem or quasi in rem.
defendant is a non resident defendant and is
outside the PH. OR summons would not be
served personally or by substituted service by
CAN THE ADVERSE PARTY SEEK DISCHARGE OF
diligence of the court. Look at Section 5 of Rule
ATTACHMENT?
57. There are the exceptions.
YES. Immediately upon knowledge of the
Now the other is in an action in rem or quasi-in
issuance of the writ or prior to the issuance of
rem, because in these actions, it is the res which
130
the writ, soon after the applicant has an May 13, 2020
approved bond, of course it is premature so to
speak. But once the bond posted is so approved
it is ministerial to issue the writ. RULE 57 Preliminary Attachment.
The adverse party against whom the writ is Now, they said that an attachment bond is
issued can immediately secure discharge of the mandatory, there is only one exception to this
writ by immediately posting a counterbond. and that is when the applicant is the
government-- The Republic of the Philippines.
So, the writ becomes ineffective, discharged
because there is already a security given by the To what property and to what extent the writ of
adverse party which is the very objective of the attachment could be executed?
writ of attachment in securing a future judgment
The writ of attachment can be executed to all
that may be issued in his favor.
kinds and classes of properties whether the
The other is propriety that the writ has been property is real, personal, movable or
issued irregularly or improperly. WHAT IS THIS immovable, tangible or intangible property such
ALL ABOUT. File a motion to discharge because as in the case of garnishment like credits in the
the writ is issued without a valid ground hands of a third person. Provided, that the writ
provided under section 1 under rule 57. There is of attachment just like writ of execution cannot
no legal basis as to the issuance… be executed over properties which are declared
by law to be exempt from execution.
Additionally, if the writ is executed over real

property, the same must be registered with the
register of deeds for purposes of notice to the
whole world and for purposes of preference.
The date of registration signals the date by

which the property is deemed place under
custodial legis and subject to future execution
of a favorable judgment that may be rendered by
the court.
Now, let us take the case of Terceria. Again,

terceria.
If terceria is available just like in execution with

respect to attachment, a third person may file his
adverse claim over properties attached where
the sheriff has executed that writ of attachment
over properties to which a third person has a
claim, he could file an affidavit of third-party
claim which we call terceria. AND he must serve
131
that affidavit also to the party executing the vindicating his claim to the property, or prevent
attachment. the attaching party from claiming damages
against a third-party claimant who filed a
SUMMARY: FILED WITH THE SHERIFF, COPY
frivolous or plainly spurious claim, in the same
FURNISHED TO THE ATTACHING PARTY.
or a separate action.
Now, the sheriff shall give notice also to the
attaching party respecting this third party claim When the writ of attachment is issued in favor of
AND under the Rules, the sheriff is not bound to the Republic of the Philippines, or any officer
keep the property subject of attachment unless duly representing it, the filing of such bond shall
pursuant to Section 14 of Rule 57, the attaching not be required, and in case the sheriff is sued
party files or post an indemnity bond. To wit: for damages as a result of the attachment, he
shall be represented by the Solicitor General, and
Section 14. Proceedings where property claimed if held liable therefor, the actual damages
by third person. — If the property attached is adjudged by the court shall be paid by the
claimed by any person other than the party National Treasurer out of the funds to be
against whom attachment had been issued or his appropriated for the purpose.
agent, and such person makes an affidavit of his
title thereto, or right to the possession thereof, This means, that the only way by which the
stating the grounds of such right or title, and property will be kept under attachment is for the
serves such affidavit upon the sheriff while the attaching party to post an attachment bond.
latter has possession of the attached property, That is for the purpose of securing the sheriff of
and a copy thereof upon the attaching party, the any claim for damages resulting from an
sheriff shall not be bound to keep the property improper attachment of a property where it is
under attachment, unless the attaching party or owned by a third person.
his agent, on demand of the sheriff, shall file a
bond approved by the court to indemnify the And again, just like in execution, if an indemnity
third-party claimant in a sum not less than the bond is posted by the attaching party, the third
value of the property levied upon. In case of party claimant has the right to vindicate his right
disagreement as to such value, the same shall be to the property in a separate and independent
decided by the court issuing the writ of action.
attachment. No claim for damages for the taking
or keeping of the property may be enforced So, if that happens, that would not amount to an
against the bond unless the action therefor is interference of a proceedings or action which is
filed within one hundred twenty (120) days from being proceeded upon by another court
the date of the filing of the bond. although there may be co-equal or coordinate
jurisdiction.
The sheriff shall not be liable for damages for
the taking or keeping of such property to any Let us go first to execution prior to judgment
such third-party claimant, if such bond shall be that may be rendered by the court that issued
filed. Nothing herein contained shall prevent that writ of preliminary attachment.. The
such claimant or any third person from
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question is can that property be solved prior to there will be full satisfaction of the judgment. If
rendition of judgment by the court? it is insufficient, the court will proceed or allow
an execution as to the balance of the judgment
- As a rule, it cannot because this property rendered by the court in such passion as that
should only be sold at auction to satisfy provided for under rule 39, an ordinary
the judgment which the court may render. execution and satisfaction of judgment. It
That is the very purpose of attachment. To presupposes that the sheriff who sold the
secure satisfaction of a judgment and property under attachment after the judgment
therefore, it must await the final judgment has become final has submitted this return over
of the court in that action. the proceeding of the sale of property under
attachment.
HOWEVER, there are 2 RECOGNIZED EXCEPTION
TO THE RULE which during the pendency of the IF THE PROPERTY SOLD UNDER JUDGMENT, DOES
action, the property under attachment may be THIS MEANS THAT THE PROCEEDS THEREOF
sold. SHALL BE DELIVERED TO THE ATTACHING
PARTY?
1. In cases where the property attached is
perishable - NO. it will not be delivered to the attaching
2. When the sale of the property may party because that proceeds will be subject
subserve the best interest of the party to to the subject that the court may render in
the action. the future. So, the proceeds of the sale of
attached property prior to judgment shall
In these cases, the court may allow sale of the only be deposited in court. It shall only be
attached property prior to judgment. deposited in court, that means the proceeds
shall be under custodia legis awaiting the
NOW, if the property is already under custodial final judgment rendered by the Court.
legis, that means it is already subject to a prior
attachment or that an agency of the government
had already seized the property, that could still
be subject of attachment. Drawing from the legal
premise that attachment applies to all kind of
property, whether they be free from any lien or RULE 58 Preliminary injunction
encumbrance or any orders on the court or any
agency. Provided, however, that the attachment In rule 58, the preliminary injunction is divided
made thereafter those prior lien or encumbrance into two.
is subject to the priority of the first lien or
encumbrance. 1) Prohibitory preliminary injunction
2) Mandatory preliminary injunction
After judgment, necessarily, the property shall
be sold. And the proceeds thereon apply to the Again, just like attachment, the provisional if
money judgment of the court if it is enough, then serves only to preserve the rights of the parties
133
pending judgment in an action. It does not But let us take the case of a terceria. Where a
dispose of the action but merely serves as a third person has a claim against the property
protection for further injury that may be caused which is attached and is now subject to sale as a
upon party or parties to an action before consequence of judgment rendered by that
judgment. court. So he files an action to the RTC to
vindicate his title over the property and he
It is a delicate writ because it may cause injury applied for a preliminary prohibitory injuction to
to the adverse party; and the admonition of the enjoin the execution of that judgment over his
SC respecting issuances of preliminary claimed property. RTC and another RTC.
injunction is to the effect that it must be
established that the requisites provided by the WILL INJUNCTION LIE?
Rules for the issuance of this injunctive writ must
be strictly scrutinized and applied. - YES. ACCORDING TO THE SC. This is not an
undue interference but an action directed
There must be strict observance and application against execution of judgment on account
of the grounds relied upon in order for an of a claimed title of a property which is
injunction relief under rule 58 could be granted. subject of judgment, that is not an undue
interference.
There are matters or subject which cannot be
subject of injunction. There are specific areas Also,
where injunction will not lie.
3) where there is no irreparable injury. You
For example, class, have to show that there could be
irreparable injury.
1) Injunction will not lie against collection 4) You cannot restrain also acts that are
of taxes. Ordinarily only the SC can do purely ministerial.
that with respect to the collection of 5) You cannot also enjoin an act involving
taxes consonant with the lifeblood those that are for purposes of
doctrine. If we are to enjoin the collection administrative functions performed by
of taxes, then, the government will be public officials under presidential decree
paralyzed in their operation. number 605—grant of concessions,
2) It cannot enjoin also proceeding licenses, permits. prohibiting courts
conducted by a co-equal court. It cannot from issuing injunctions and TRO’s
apply for and it cannot be granted the against projects for the exploitation or
proceedings or action which the other development of natural resources
court of co-equal rank or jurisdiction is 6) Injunctive writ cannot be issued against
____ (conducted?). take note that if we are infrastructure projects pursuant to P.D.
talking about both RTC, RTC cannot 1818 as amended, prohibiting injunction
enjoin another RTC. against public infrastructure projects and
public utilities; Under this law in relation
134
to SC circulars, no injunction also against In that case, the ombudsman issued a preventive
NAPOCOR. suspension order against mayor junjun binay.
7) You cannot also enjoin an act performed Binay filed a petition for certiorari under rule 65
under PD 3085. Foreclosure of and not under rule 43 and sought the issuance
outstanding mortgage. prohibiting of preliminary prohibitory injunction to restraint
injunction against government financing to enjoin the ombudsman from implementing
institutions, against mandatory the suspension order, preventive suspension
foreclosures or against CARL. For order which as history told us, it was granted and
example, the outstanding balance of the forthwith the writ of preliminary mandatory
forfeiture is 20% of the loan, you cannot injunction was issued but prior to the service of
enjoin foreclosure pursuant to PD 3085. that injunctive writ, the DILG, the ombudsman
suspension order through the DILG was already
However, as laid down by the SC with respect to implemented. So service came late. The TRO or
PD 1818, only the SC can issue an injunctive writ writ of preliminary injunction was mooted by a
for purposes of enjoining a government prior implementation.
infrastructure project especially national
infrastructure projects. So, eventually, as to the issue whether the CA
has authority to issue that TRO, the SC ruled that
WHAT ARE THE GROUNDS IN ORDER THAT, oh by Section 4 and 12 of the Ombudsman charter are
the way class, in the petition of ABSCBN pursuant unconstitutional but what is notable is the
under Rule 65, ABS CBN asked for injunctive writ implementation of the writ which came later
to stop the NTC from continuing the after the suspension order was already served
enforcement of the cease and desist order, is and the acting mayor had already been installed.
that prayer proper? Could the SC an act on that? So there can no longer be an application for the
enforcement of the writ which was mooted by
- The fact that the cease and desist order has intervening events.
already been enforced or implemented
means that the act to be enjoined is already SO WHAT ARE THE GROUNDS FOR THE ISSUANCE
complete. OF THE WRIT OF PRELIMINARY INJUCTION?
- Injunction will not lie where the acts sought
to be prevented or enjoined has already Section 3. Grounds for issuance of preliminary
been implemented. These are matters that injunction.-A preliminary injunction may be
are mooted by prior events to the filing of granted when it is established:
petition.
- If it is moot and academic, that means it is (a) That the applicant is entitled to the relief
already made complete. demanded, and the whole part of such
relief consists in restraining the
commission or continuance of the act or
acts complained of, or in requiring the
Now take note of the case of MORALES VS performance of an act or acts either for a
MAYOR JUNJUN BINAY. limited period or perpetually;
135
(b) That the commission, continuance, or effect of rendering any judgment that may be
non-performance of the act or acts rendered in the judgment in the action
complained of during the litigation would ineffectual.
probably work in justice to the applicant;
So, in any application for injunction, probability
or
is a sufficient basis, not absolute. As in the case
(c) That a party, court, agency, or a person
of Hernandez v. NAPOCOR. SC SAID Probability
is doing, threatening, or is attempting to
is enough for injunction to issue. Not absolute
do, or is procuring or suffering to be
certainty.
done, some act or acts probably in
violation of the rights of the applicant So being a preventive remedy, a writ of
respecting the subject of the action or injunction when the right in ___ is clear and
proceeding, and tending to render the unmistakable on the part of the applicant and
judgment ineffectual. the act complained of would probably work
injustice if not restrained. So you cannot
First, is that it must be shown that the applicant establish your right if the right is contingent
is entitled to the writ demanded. Second, what is although the unmistakable result will be a
this relief, whole or part consisting restraining violation of a right, injunctive writ may not be
the commission or continuance of the act or acts issued.
complained of. OR requiring performance of act
Can the injunction may be applied, proceeded
or acts which may either be for a limited period
with by the court ex parte?
or perpetually.
NO SIR. Except in extreme urgent instances
Well, if you talk about perpetually, perpetual
where a TRO will be issued ex parte. And in cases
injunction that refers to a permanent injunction
of injunctive writ under rule 58, there is a period
which can be declared only the court in an action
by which the writ could be effected if it is a TRO,
for injunction. WHAT ELSE, that a commission or
for the RTC, the period is 20 days; for the CA, 60
continuance of an act committed as complained
days; for the SC ad infinitum. In the sense that
of during the pendency of the action will work or
the SC may issue a TRO which would last until
probably. Take note of the word probably, there
otherwise lifted.So it could last for 100 years.
is no absolute necessity to prove injustice but
probability that would cause the applicant. Okay NOW TRO, although bond is required in
injunctive relief, may not require the party for
Third, these acts or threatened acts or an
such bond. In fact, class if you look at section 2.
attempt of doing such acts which consist of
The court has a discretion to require a bond or
procuring or suffering to be done, of something
no bond unlike in preliminary attachment. The
or some acts are probably in violation of the
court pursuant to section 2 of rule 58 may issue
rights of the applicant.
an injunctive writ without a bond, but with
Again the law used the word probable-- respect to a preliminary injunction, there shall be
Probable violation of the rights of the applicant notice and hearing.
with respect to the subject of the action or
The fact is under the present rules for issuances
proceeding. When the resulting or ultimate
of Preliminary injunctive writ, once the complaint
136
is filed with the COC, it is immediately raffled determine the subject matter is exclusively on
and thereafter, summons and notice of hearing matters of jurisdiction or public respondent that
is served upon the adverse party. had acted without or in excess of jurisdiction.
So the requirement of notice and hearing Injunction may be the main action itself or is a
becomes mandatory under this Rule. Once the provisional remedy while prohibition is always
complaint wit application for injunctive writ is the main action.
filed, there is that necessity to immediately serve
Q: what are the available grounds in favor of the
summons and notice of hearing to the adverse
adverse party in objecting, opposing, or asking
party.
for the dissolution of the injunction?
HOW DO YOU DISTINGUISH A STATUS QUO
Ans:
ORDER FROM A TRO OR A PRELIMINARY
INJUNCTION. (BAR 2007)
Section 6. Grounds for objection to, or for
If you look at SC decision and the laws. motion of dissolution of, injunction or
restraining order. — The application for
A status quo ante order is an order issued by the
injunction or restraining order may be denied,
SC, which also does not need a bond in ordering
upon a showing of its insufficiency. The
the parties to revert back to their former position
injunction or restraining order may also be
prior to the filing or institution of the action. It
denied, or, if granted, may be dissolved, on
commands the parties to revert where they were
other grounds upon affidavits of the party or
the last actual feasible and uncontested situation
person enjoined, which may be opposed by the
of the parties prior to the filing of the action.
applicant also by affidavits. It may further be
That means anti litem motam.
denied, or if granted, may be dissolved, if it
It does not prohibit but the parties are ordered appears after hearing that although the
to go back to where they were. Anti litem motam. applicant is entitled to the injunction or
restraining order, the issuance or continuance
PROHIBITION VS INJUNCTION
thereof, as the case may be, would cause
Q: What is the difference between prohibition irreparable damage to the party or person
and injunction (whether temporary or enjoined while the applicant can be fully
permanent)? compensated for such damages as he may
suffer, and the former files a bond in an amount
Ans: Injunction is an ordinary civil action while fixed by the court conditioned that he will pay all
prohibition is a special civil action. damages which the applicant may suffer by the
In injunction directed against the filing party denial or the dissolution of the injunction or
while in prohibition generally directed against a restraining order. If it appears that the extent of
court, tribunal, or any agency that exercises the preliminary injunction or restraining order
judicial powers. granted is too great, it may be modified.
Injunction does not involve jurisdiction of the Ex. a notice that b is constructing a fence that
court, while in prohibition as you can easily within a’s property.
137
Q: Can A file injunction against B to stop the Q: can injunction lie against a wife who is
construction of the fence, for the protection of refusing cohabitation to her husband? Is this
the former’s property? against the principle of family code?
Ans: Yes Ans: No because you cannot compel, cannot file

mandatory injunction against someone to love
On the other hand, is the act committed by b
you.
which clearly violates the right of A, would this
act will be fully compensated so far as the court
will fixed the post bond?
Ans: this is a borderline case thus can be

RULE 70
answered on either way.
Q: is injunction available as provisional remedy
If the A will use the land for necessity/ physical
under this rule?
enjoyment (construction of house) it is
considered as an irreparable injury hence cannot Ans: yes, rule 70 merely tells you that courts has
be fully compensated by an award or damages the power to grant preliminary injunctions.
that the adverse party may give. But if for
commercial purposes (paupahan, agricultural) it Section 15. Preliminary injunction. — The court
may be fully compensated. may grant preliminary injunction, in accordance
with the provisions of Rule 58 hereof, to prevent
Note: be careful with these kind of questions.
the defendant from committing further acts of
Injunctions issued by higher courts to decide dispossession against the plaintiff.
Sec. 5, rule 58 last paragraph Section 20. Preliminary mandatory injunction in

The trial court, the Court of Appeals, the case of appeal. — Upon motion of the plaintiff,
Sandiganbyan or the Court of Tax Appeals that within ten (10) days from the perfection of the
issued a writ of preliminary injunction against a appeal to the Regional Trial Court, the latter may
lower court, board, officer, or quasi-judicial issue a writ of preliminary mandatory injunction
agency shall decide the main case or petition to restore the plaintiff in possession if the court
within six (6) months from the issuance of the is satisfied that the defendant's appeal is
writ. frivolous or dilatory or that the appeal of the
plaintiff is prima facie meritorious.
Q: what is the remedy available to a party against
the higher court? CONTEMPORANEOUS SERVICE
A: if in the SC, file a pleading for early resolution. This is not applicable in preliminary injunction.
It is a petition before the SC to resolve the issue There must be a prior notice and hearing before
at the earliest opportunity. granting a temporary restraining order.
If in RTC, file a mandamus. Q: can TRO issued by the court, be subjected to

extension?
138
Ans: of being wasted or dissipated or

materially injured, and that its value is
Generally: No.
probably insufficient to discharge the
Exception: if the matter is of extreme urgency mortgage debt, or that the parties have
and the applicant will suffer grave injustice and so stipulated in the contract of
irreparable injury, the court may issue a TRO mortgage;
effectively only for 72 hours from issuance,
renewable after summary hearing for a period (c) After judgment, to preserve the
not exceeding 20 days including the original 72 property during the pendency of an
hours. But it shall not go beyond 20 days. appeal, or to dispose of it according to
the judgment, or to aid execution when
If not resolve within the 20 days, the TRO
the execution has been returned
naturally dies.
unsatisfied or the judgment obligor
RECEIVERSHIP refuses to apply his property in
satisfaction of the judgment, or
Purpose: preserving and conserving the property otherwise to carry the judgment into
in litigation and its possible destruction and effect;
damages.
(d) Whenever in other cases it appears
Section 1. Appointment of receiver. — Upon a that the appointment of a receiver is the
verified application, one or more receivers of the most convenient and feasible means of
property subject of the action or proceeding may preserving, administering, or disposing
be appointed by the court where the action is of the property in litigation.
pending or by the Court of Appeals or by the
Supreme Court, or a member thereof, in the During the pendency of an appeal, the appellate
following cases: court may allow an application for the
appointment of a receiver to be filed in and
(a) When it appears from the verified decided by the court of origin and the receiver
application, and such other proof as the appointed to be subject to the control of said
court may require, that the party court.
applying for the appointment of a
receiver has an interest in the property or Requirement before issuance of an order
fund which is the subject of the action or
proceeding, and that such property or Section 2. Bond on appointment of receiver. —
fund is in danger of being lost, removed, Before issuing the order appointing a receiver
or materially injured unless a receiver be the court shall require the applicant to file a
appointed to administer and preserve it; bond executed to the party against whom the
application is presented, in an amount to be
(b) When it appears in an action by the fixed by the court, to the effect that the applicant
mortgagee for the foreclosure of a will pay such party all damages he may sustain
mortgage that the property is in danger by reason of the appointment of such receiver in
139
case the applicant shall have procured such court, motu proprio or on motion of either party,
appointment without sufficient cause; and the shall determine that the necessity for a receiver
court may, in its discretion, at any time after the no longer exists, it shall, after due notice to all
appointment, require an additional bond as interested parties and hearing, settle the
further security for such damages. accounts of the receiver, direct the delivery of
the funds and other property in his possession
General powers of a receiver to the person adjudged to be entitled to receive
them and order the discharge of the receiver
Section 6. General powers of receiver. — Subject from further duty as such. The court shall allow
to the control of the court in which the action or the receiver such reasonable compensation as
proceeding is pending a receiver shall have the the circumstances of the case warrant, to be
power to bring and defend, in such capacity, taxed as costs against the defeated party, or
actions in his own name; to take and keep apportioned, as justice requires.
possession of the property in controversy; to
receive rents; to collect debts due to himself as Note: there are receivership other than Rule 58
receiver or to the fund, property, estate, person,
or corporation of which he is the receiver; to 1) Receivership under Rule 39, Sec. 1
compound for and compromise the same; to 2) Bank receivership
make transfers; to pay outstanding debts; to 3) Receivership in petition for insolvency
divide the money and other property that shall under the Insolvency Law
remain among the persons legally entitled to
receive the same; and generally to do such acts Q: Can there be receivership under Family Code?
respecting the property as the court may
authorize. However, funds in the hands of a Ans: Yes.
receiver may be invested only by order of the
court upon the written consent of all the parties Article 101 - If a spouse, without just cause,
to the action. abandons the other or fails to comply with his or
his obligations to the family, the aggrieved
No action may be filed by or against a receiver spouse may petition the court of receivership.
without leave of the court which appointed him.
REPLEVIN
Q: can the adverse may put up a counter bond?
It is the delivery of personal property. It is
Ans: yes, in order to oppose the application of confined only to property capable of manual
the receivership. But this bond is different from delivery.
the bond posted by the applicant.
Notes:
Termination of receivership
1) The applicant for a writ of replevin need not
Sec. 8. Termination of receivership; be the owner for it is enough that he has a
compensation of receiver — Whenever the
140
right to posses it. (Yang v. Valdez, G.R. No. The application is supported by affidavit alleged
73317, August 31, 1989, 177SCRA 141) in the complaint.
2) Replevin cannot be availed of if the property
is in custodia legis or where it is under Section 2. Affidavit and bond. — The applicant
attachment or was seized under a search must show by his own affidavit or that of some
warrant (Pagkalinawan v.Gomez, Nos. L- other person who personally knows the facts:
22585, December 16, 1967, 21 SCRA 1275;
Rules of Court, Rule 60, Sec. 2 ( c ) except: (a) That the applicant is the owner of the
property claimed, particularly describing
a) when the seizure is illegal; (Bagalihog it, or is entitled to the possession
v. Fernandez, G.R. No. 96356, June 27, thereof;
1991, 198 SCRA 614) and
(b) That the property is wrongfully
b) where there is reason to believe that detained by the adverse party, alleging
the seizure will not anymore be followed the cause of detention thereof according
by the filing of the criminal action in to the best of his knowledge,
court or there are conflicting claims. information, and belief ;
(Chua v. Court of Appeals, G.R. No.
79021, May 17, 1993, 222 SCRA 85) (c) That the property has not been
distrained or taken for a tax assessment
3) The defendant is entitled to the return of the or a fine pursuant to law, or seized under
property taken under a writ of replevin if the a writ of execution or preliminary
following requisites are met: attachment, or otherwise placed
under custodia legis, or if so seized, that
1. He posts a redelivery bond and it is exempt from such seizure or
2. He furnishes the plaintiff of a copy of custody; and
the undertaking within five (5) days
from taking and (d) The actual market value of the
3. The bond is sufficient and in proper property.
form. (Rule 60, Secs. 5 and 6)
Provisional remedy under criminal procedure
Prescriptive Period
Under rule 127, the provisional remedies are
Section 1. Application. — A party praying for the also is made up in criminal action.
recovery of possession of personal property
may, at the commencement of the action or at Q: do you think replevin is also applicable to
any time before answer, apply for an order for criminal action?
the delivery of such property to him, in the
manner hereinafter provided. Ans: yes, provided that the grounds are present.
Affidavit bond Q: if A’s car was carnaped, can A apply replevin

for provisional remedy?
141
Ans: No. because the vehicle is under custodial reason the property is not delivered to the
legis and you cannot file an answer in criminal applicant, the sheriff must return it to the
actions. The accused is not required to answer adverse party.
the information.
Q: can the applicant, to whom the redelivery
Pursuant to rule 127, it is impossible to use bond was given, retain the property?
replevin rule 60 under criminal action
Ans: Yes.
Q: what are the grounds available to a person
opposing or asking dissolution of replevin? Section 7. Proceedings where property claimed
by third person. — If the property taken is
Ans: claimed by any person other than the party
against whom the writ of replevin had been
Section 5. Return of property. — If the adverse issued or his agent, and such person makes an
party objects to the sufficiency of the applicant's affidavit of his title thereto, or right to the
bond, or of the surety or sureties thereon, he possession thereof, stating the grounds
cannot immediately require the return of the therefor, and serves such affidavit upon the
property, but if he does not so object, he may, sheriff while the latter has possession of the
at any time before the delivery of the property to property and a copy thereof upon the applicant,
the applicant, require the return thereof, by the sheriff shall not be bound to keep the
filing with the court where the action is pending property under replevin or deliver it to the
a bond executed to the applicant, in double the applicant unless the applicant or his agent, on
value of the property as stated in the applicant's demand of said sheriff, shall file a bond
affidavit for the delivery thereof to the applicant, approved by the court to indemnify the third-
if such delivery be adjudged, and for the party claimant in a sum not less than the value
payment of such sum, to him as may be of the property under replevin as provided in
recovered against the adverse party, and by section 2 hereof. In case of disagreement as to
serving a copy of such bond on the applicant. such value, the court shall determine the same.
No claim for damages for the taking or keeping,
Section 6. Disposition of property by sheriff. — of the property may be enforced against the
If within five (5) days after the taking of the bond unless the action therefor is filed within
property by the sheriff, the adverse party does one hundred twenty (120) days from the date of
not object to the sufficiency of the bond, or of the filing of the bond.
the surety or sureties thereon; or if the adverse
party so objects and the court affirms its The sheriff shall not be liable for damages, for
approval of the applicant's bond or approves a the taking or keeping of such property, to any
new bond, or if the adverse party requires the such third-party claimant if such bond shall be
return of the property but his bond is objected filed. Nothing herein contained shall prevent
to and found insufficient and he does not such claimant or any third person from
forthwith file an approved bond, the property vindicating his claim to the property, or prevent
shall be delivered to the applicant. If for any the applicant from claiming damages against a
142
third-party claimant who filed a frivolous or parties, and accompanied by affidavits,

plainly spurious claim, in the same or a separate depositions or other authentic documents in
action. support thereof.
When the writ of replevin is issued in favor of the Remedies

Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not Section 5. Enforcement of order. — If the
be required, and in case the sheriff is sued for adverse party fails to comply with an order
damages as a result of the replevin, he shall be granting support pendente lite, the court
represented by the Solicitor General, and if held shall, motu proprio or upon motion; issue an
liable therefor, the actual damages adjudged by order of execution against him, without
the court shall be paid by the National Treasurer prejudice to his liability for contempt. (6a)
out of the funds to be appropriated for the
purpose. When the person ordered to give
support pendente lite refuses or fails to do so,
Q: Is terceria available in replevin? any third person who furnished that support to
the applicant may, after due notice and hearing
Ans: Yes under section 7. in the same case obtain a writ of execution to
enforce his right of reimbursement against the
RULE 61 person ordered to provide such support
Support Pendente Lite Reimbursement
An amount of support provisionally fixed by Section 7. Restitution. — When the judgment or

court in favor of the person or persons entitled final order of the court finds that the person who
thereto. This remedy is also applicable in has been providing support pendente lite is not
criminal cases liable therefor, it shall order the recipient thereof
to return to the former the amounts already paid
Factors that the court must consider in granting with legal interest from the dates of actual
support Pendente Lite payment, without prejudice to the right of the
recipient to obtain reimbursement in a separate
1. The necessity of the applicant action from the person legally obliged to give the
2. Capacity of the person obliged to give support. Should the recipient fail to reimburse
support. said amounts, the person who provided the
same may likewise seek reimbursement thereof
Section 1. Application — At the commencement
in a separate action from the person legally
of the proper action or proceeding, or at any
obliged to give such support.
time prior to the judgment or final order, a
verified application for support pendente
lite may be filed by any party stating the grounds
for the claim and the financial conditions of both
143
In order to commence SCA, there has to be no

May 14, 2020 violation/breach yet.
Special Civil Actions RULE 62 - INTERPLEADER
Interpleader is one the object of which or

purpose is to free a person from vexatious
Third paragraph of Section 3 Rule 1:there is no
claims, from harassment
definition of special civil actions except the
reminder under that provision that it shall be Where there are conflicting claims presented
governed by specific rules. against a person claiming rights over property or
obligation, you can go to court and file
Although it is principally governed, not
Interpleader
suppletorily, also by the rules on ordinary civil
action. What court? Could this be exclusive to the RTC
just like declaratory relief because it is incapable
Section 3 of Rule 1 tells us that both ordinary
of pecuniary estimation? No sir
and special civil action shall be governed by the
Rules on ordinary civil actions subject only to An action for interpleader, because it involves
specific rules which we can find it in every special property or obligation, there is the amount and
civil actions. the value that would determine the jurisdiction
of the court where the action should be filed. So
Example of this is a special civil action which
it could either be the MTC or the RTC
does not require a cause of action.
In particular, there are two kinds of special civil

actions which do not require cause of action: Rules applicable in ordinary civil actions to
Rules 62 and 63 interpleader would be as follows
1) One, motion to dismiss
Except that under Rule 63, Second Paragraph

thereof provides for similar remedies, three There is a serious consequence that would follow
kinds of actions, however requires cause of in case of default in interpleader. What is that?
action*****
- Where default results against a party for
If you are confronted with interpleader and failure to file a responsive pleading
declaratory relief, these do not require cause of within the reglementary period, he loses
action his rights over the subject matter of the
action
Section 6 Rule 63: if a breach occurs during the
- He loses his rights, he loses his claim and
pendency of any declaratory relief action, that
therefore, if there are two only
kind of special civil action will be converted to an
defendants, automatically, the non-
ordinary civil action
144
defaulting defendant would be entitled Example: Situation of a warehouseman,

to the property
lessee
2) Having lost the right or claim over the Here is a warehouseman he has in his
subject matter of the action, he would also possession a property deposited, here
be denied to his post judgment remedies. comes the first claimant.
He could not appeal, etc.
First claimant: “That property belongs to
me, release it to me. H have here the bill
Reason: he is already an outsider in so far as that
of lading and the deed of sale.”
property is concerned not a real party in interest
who could bring the action to appellate court Here comes the second claimant. He said
“I am the legal owner of the property
having awarded to me by the bureau of
customs because it has been auctioned
by the bureau of customs”
So there are two claimants now. Can the

warehouseman release the property to
either of these claimants?
Of course he can, nobody can prevent it.

But he could be a subject of a suit of the
other claimant
To avoid future vexatious suit, the

remedy is to go to court and file a
complaint for interpleader and let all
these claimants litigate among
themselves to determine who among
them has the right to the property under
his custody.
That is the prudent thing that the

warehouseman could do
145
Another case: here is the tenant. motion to dismiss on any of the four grounds
allowed and that ground is impropriety (Meaning
The land lord for the lessor died. After that the action is improper)
the death here comes the surviving
Where will you allege the impropriety?
spouse. He said, “You have to pay me the
rental in full because i'm the surviving As a consequence of the amendment, in an
spouse.” answer not a motion to dismiss
Next day here comes the eldest son, “Mr. Interpleader is subject to the grounds allowed
for a motion to dismiss
tenant you have to pay me the rentals do
because I am responsible for the support
Manager’s check case
of my brothers and sister and our mother
has already abandoned as a long time In one case, the Supreme Court even
ago” ruled that interpleader is also proper in
cases of a lost check as reported by the
Third day, here comes the youngest “You
person who purchased a check from that
have to deliver to me the rentals. I am a
bank, which is likewise claimed by
law student in UST and I have no money
another person being allegedly entitled
to support my education and if you give
to the proceeds of the check. So the bank
that to my older brother he will squander
would properly institute an interpleader
that money”
action so the depositor purchaser of the
So there are three claimants. Can he check and the claimant the possessor of
release that? the check should litigate.
Yes. The prudent thing for him to do, Yung kaso na iyan, yung depositor
because of various claims, is to go to kumuha ng manager’s check, nawala sa
court and let the court decide who among banko, kinuha ng iba and subsequently it
In some decisions of the court, it would require was claimed by somebody else and was
them would be better entitled to the
the plaintiff to deliver the property before the presented by a lawyer in representation
amount
court or any of the parties would move that the
of another, for encashment. The lawyer
property
Becausewould
after be
he placed under
files his custodia
complaint andlegis
refused to divulge the identity of his
service of summons, he will sit back relax
But generally after he filed that complaint and client. The bank denied the encashment
and wait has been validly served, he could just
summons of the check and filed for a suit for
sitThere
back isand relax more
nothing and wait for the
required for judgment
him interpleader
rendered by the court What are the other pleadings allowed for an
to do instead of wait for the decision who
The court saidCan that action is proper
will award who among the claimants will interpleader? you file a counterclaim or
because the check is claimed
cross-claim? Yes. Section 5. to have
be entitled
There is one ground added by Rule 62 to the been lost by the person who is supposed
How about a third-party complaint? Yes,
grounds for the dismissal of complaint if the to be entitled to it and the other one who
Paragraph 2, Section 5
alleged in the answer or otherwise by way of is in possession and also claiming title to
the check
146
This action is one of its kind. It is very unique it the third-party plaintiff, the defendant in the
cannot exist if it only has one defendant. You principal action (subrogation, etc.) and under the
cannot file this action if it is directed to a single rules, the only way by which the defendant could
defendant. There must at least be two bring a total stranger to an action is by way of a
defendants third-party complaint not by way of an answer
Interpleader as affirmative defense The only ways to bring a total stranger to an

action are:
Here is Claimant #1 against the
1. By a third party complaint and
warehouseman, he filed an action for
2. Intervention (on his own volition)
delivery of personal property with an
application for writ of replevin. So instead
na si warehouseman ang magdemanda, Now the question: can the warehouseman invoke
naunahan pa. How can the interpleader when he file his answer and so his
defense is that there are so many claimants, “oh
warehouseman invoke interpleader as a
sampu ang claimants dito, your honor. I invoke
defense? Can he invoke interpleader as
interpleader.” Is that correct?
affirmative defense?
Kung ako liable dito your honor, ipasa ko the
If he does so, what does he need?
third party defendant siya dapat managot dito.
Kaylangan niya magdagdag ng isa pang
But that is not the nature of the action. It is
defendant. In order for an interpleader to delivery. Nasa kanya possession.
exist there must at least be two
Magfifile ka ng motion to dismiss on the ground
defendants. So kaylangan magdala siya
of impropriety? Proper yung action.
ng outsider para dalawa silang
defendant. Is that correct? Magagamit mo yung impropriety if yung finile is
an action for interpleader. Pero dito, hindi
The answer is Judicial Form No. 5. This
interpleader ang finile. This is an action for
forum will tell you answer with replevin (action to deliver personal property with
interpleader. an application of the provisional remedy of
replevin)
So the answer is yes because under
Judicial Form No. 5, the defendant where If you're talking about impropriety as a ground
interpleader is available can file an for Dismissal of an action that only applies to
answer with interpleader. interpleader action.
It is a proper pleading, answer with How can he possibly invoke as interpleader? Para
interpleader. masabi niya na “wala akong liability dito, bahala
silang dalawa”
The purpose of third-party complaint is to seek It cannot be third party complaint. the purpose
of such complaint is subrogation
contribution or make a stranger answerable to
Indemnification that means to substitute the
whatever the judgment may be rendered against
147
defendant to any liability that will be a judge to In quieting of title, the jurisdiction depends now
him so ang mananagot is ang third party on its assessed value of the property involve it
defendant. could either be RTC or MTC
Bakit mo ipapasa doon sa other claimant yung What are the subject matters allowed for
liability mo to deliver wala naman sa kanya yung Declaratory Relief? Law, executive order,
property. Kaya ang kaso is i-deliver mo sakin. ordinance, regulations, any government
That obligation is exclusive to you kasi nasayo regulations, contracts, deeds or wills (See
yung property. Section 1, Rule 63)
Let's go back to the question is it possible for

the defendant in this case to invoke
The purpose of which is to declare what right a
interpleader? Can you file an answer with
party may have under these subject matters
interpleader para makaladkad mo yung claimant
number 2? Where do we find a justification to So you are confronted with a law, ordinance,
invoke this interpleader because it cannot be contract or any other instruments that creates
done by a third party complaint? rights and obligations before any breach is
committed so that the rights under that
Student: He may bring an action to compel the
instrument could be judicially declared provided
claimants to interplead
that no breach must be committed.
Sir: Will he not be liable for forum shopping?
What do you understand by this “will” as a
The answer is judicial form number 5. This subject matter? is it last will and testament?
forum will tell you answer with interpleader.
A will is executed by a person the purpose of
So the answer is yes because under judicial form which is to govern the disposition of his property
number 5 the defendant where interpleader is effective upon his death to take effect upon his
available can file an answer with interpleader. death
It is a proper reading, answer with interpleader. There are two kinds of wills: Notarial will and
holographic will
A notarial will is one entirely written in the hands

RULE 63 - DECLARATORY RELIEF AND SIMILAR
of the testator in a language known to him dated
REMEDIES
and signed and written entirely by his hands in a
What is the subject matter of declaratory relief? language known and understood by him
It is a personal action but incapable of pecuniary
Holographic will is one executed not by his hand
estimation and therefore exclusive to RTC. It also
but with the requirement of certain formalities
does not require cause of action
required by law such as that there must be
Unlike similar remedies, for example attesting witnesses, must be duly notarized and
reformation of instrument, quieting of title or must be probated (it has to be approved by the
removing clouds over the title and consolidation court)
of title
148
Unless that will is approved by the court there is Example:

no will to speak of.
Here is a person who is one of the five
General rule: Extrinsic validity (Section 9 Rule 76)
siblings He has a billionaire father. soon
So kung kung “will” na iyan is last will and after his father left for a vacation abroad
testament na yan, let us go to declaratory relief. he tried to look at the documents kept by
Would it be proper subject of declaratory relief? his father and discovered a last will and
The Supreme Court has yet to come out with a testament executed by his father. there
judicial pronouncement. Ano ba talaga ito bakit he reads that his father declared a total
nandiyan yan? assets or estate in the amount of 5 billion
pesos properties and cash.
Unfortunately, in the disposition, he was
Because if it is the last will and testament in that only given 5 million pesos. aggrieved he
provision, then walang kapuwang-puwang yan brought it to a lawyer, atty. Mendoza.
to declaratory relief “Atty. Mendoza, May problema ako. I will
The reason is simple. The only way by which a secure your advice regarding the last will
will could be construed and the only time by and testament executed by my father.”
which there will be a will to speak of is when that
Under the law the last will and testament
will is judicially probated what is probate it is a
is the law that will govern the property
special proceeding under the rules on settlement
your father.
of estate covered by Rule 73 to 90 and that is
exclusive to testate proceeding court or judicial Atty. Mendoza recalls Rule 63. I need to
proceeding court construe the right of my client under this
last will and testament. I will file a
no third party complaint allowed
in this kind of action; declaratory relief action
Is counterclaims allowed? - YES They filed the complaint and five days
only compulsory not permissive later the court dismissed the complaint.
counterclaim.
Is the dismissal of the complaint proper?
Dec. Relief is a vehicle also that Did the court commit reversible error in
may authorize the court to
declare a law or ordinance dismissing such complaint involving a
unconstitutional; will? The court dismissed the petition
because the matter is contingent,
speculative and therefore it is not
justiciable controversy at the moment.
Answer: Dismissal is proper. There is no

will to speak of there is no justiciable
controversy because under the
contemplation of law it will only exist
when it is probated.
149
Answer: Dismissal is proper. There is no and speculative and therefore it is not justiciable
controversy at the moment.
will to speak of there is no justiciable
controversy because under the At the time when the declaratory relief was filed
contemplation of law it will only exist is there a will to speak of?
when it is probated.
Student: There was no will since it was not
probated
One of the consequences in declaratory relief is
Will that terminate the question imposed by the
the declaration that will be made by the court
complaint that he was deprived of his rightful
whether executive order ordinance is void
share?
Example, the city ordinance of Cagayan De Oro
There is a physical will. n the eyes of the law is
involving Cagayan City Electric Cooperative. The
there a last will and testament? Hanggang buhay
consequence of the special civil action in a
yung tatay pwedeng palitan niyan and gumawa
declaratory relief would either validate or
ng bago.
invalidate an ordinance in the same manner as
the law or executive order as the case may be Atty. Mendoza is seeking judicial determination
of the rights of his client under that will.
Nuguid vs Nuguid
Kailangan i-declare ng korte na yang will na yan
- Issue on preiteration denies his client of his rightful share over the
- That would trigger refusal to properties or assets or estate of his father. Dapat
probate/approve the will PHP 1B daw, eh ang nakalagay is PHP 5M. There
is a necessity to determine whether that is
sufficient or insufficient. The court must rule
Atty. Mendoza: Under this DR it would be under this action of declaratory relief whether
possible. Under Section 1 of Rule 63, kasali ang that will is valid or invalid.
will dyan. So you will file a special civil action for
declaratory relief. We will include all the person Rules on settlement of the estate, yang will na
has interest in this will. They filed the complaint yan pwedeng dalhin sa korte para maaprobahan
and five days later the court dismissed the or ma-probate during the lifetime of the
complaint. testator, either ante mortem or post mortem
In declaratory relief, it is discretionary on the During his lifetime, mas madali na mapapa-
part of the court to take cognizance of the case probate yan kasi buhay pa siya, masasabi niya
if in the opinion of the court it would not akin yan pirma ko yan. So it's easier for the court
terminate the issues involved to approve the will dahil mismong buhay pa.
Is the dismissal of the complaint proper? Did the There is a possibility of probate of that will
court commit reversible error in dismissing such during the lifetime of the testator only by
complaint involving a will? The court dismissed himself. No one else.
the petition because the matter is contingent
Reason: He can change that he can destroy that.
Unlike if he's already dead it can be probated by
150
a petition of someone who has interest over his Problem

estate, even the creditors
Taxpayer was issued a notice by the BIR
There is no will to speak of, there is no
for non-payment of tax assessed. There
justiciable controversy because under the
was a previous tax assessment served on
contemplation of law it will only exist when it is
this taxpayer pursuant to National
probated
Internal Revenue Code. Now, the
The only court for that could determine the taxpayer claims that he is not entitled to
validity is the probate court and it is a special
this tax liability because it enjoys certain
proceeding for probate not by declaratory relief
exemptions as contained in the tax
therefore the court is correct in dismissing the
allowance that the Secretary of Finance
petition for declaratory relief
issued in his favor prior to the notice or
The only way by which that will could be inquired order to pay tax delinquency.
into or construed or decided upon is through
judicial proceeding in a petition for probate. In Upon the receipt this notice to pay or
that petition there is no respondent demand to pay the tax due, as alleged by
the BIR, he filed a petition for declaratory
relief to determine once and for all
Kaya nga sinasabi ko na if that “will” in Section 1 whether the amount of tax levied by the
refers to will and testament It is anomalous BIR is covered by the tax exemptions as
misplaced and inapplicable. declared by this Secretary of Finance. He
Prior to the internment of President Marcos in wants the court to determine whether it
the Libingan ng mga Bayani, we filed a petition is covered by the tax exemptions
for declaratory relief to determine whether or not granted.
Pres. Marcos could be buried in the Libingan ng
The court dismissed the complaint.
mga Bayani. The court dismissed the petition
According to the court, it failed to
although it declared that the petition is proper.
exhaust administrative remedy and it is
It was dismissed on the ground that person in
interest to the outcome of the action was not not ripe for judicial determination as
impleaded for failure to implead interested there has already been a decision made
parties. We did not include at least one of the by the agency and that is the BIR. With
heirs of President Marcos. But the subject matter that dismissal, he intends to appeal on
for determination is proper. the ground that the court erred in
dismissing the petition on the ground
that there is no requirement under the
law to exhaust administrative remedies
as well as the issue involved for the
determination of the exemption as
proclaimed by the secretary of finance
necessitates judicial determination.
In other words, the subject matter is

justiciable controversy that is ripe for 151
judicial determination. Is the taxpayer
Answer: No. First, there was no tax or revenues, you cannot go directly to court
in so far as the tax or revenue is concern.
exhaustion of administrative remedies
When the law requires exhaustion of Because under the Local Government Code,
administrative remedies whether it is a whether it should be invalid or illegal, it should
national or local tax you cannot go be resolved administratively. You have to appeal
directly to court for purposes of filing to the Secretary of Justice within the period of 30
declaratory relief that is a requisite (You days and you cannot file a declaratory relief
action if that is still available or you have not
must distinguish what kind of tax was
exhausted that administrative remedy of appeal
imposed).
to the secretary of justice involving this tax or
Second, there was already a breach and revenue.
under the Rule 63, you cannot file a
In contrast, in the case of Cagayan de Oro
declaratory relief action if there is already
Electric Cooperative vs. City of Cagayan de Oro,
a breach. Non-payment of tax would the Supreme Court has distinguished for the
result in a case of tax evasion. The purposes of declaratory relief action:
moment the taxpayer fails to pay the tax
do there is a violation already. - If the measure is regulatory fees (as
opposed to a tax measure), that
regulatory fees imposed by the
ordinance = does not require exhaustion
of administrative remedies and therefore
Issue on the exhaustion on admin. remedies?
a person or entity affected could go
Is there an admin remedy on the level of the BIR directly to chords in an action for
on that matter (tax assessment)? declaratory relief under Rule 63
- But if the measure is a tax ordinanceyou
Is the taxpayer entitled to remedy as to the
have to exhaust administrative remedies
assessment made by the BIR?
You can protest or ask for reconsideration and When the law requires exhaustion of
that is required so you have to exhaust that. administrative remedies, whether it is a national
or local tax, you cannot go directly to court for
Just like in the imposition of taxes, the city
purposes of filing declaratory relief.
government in the exercise of its police power,
can pass an ordinance imposing tax or revenue So in the example we gave, there was no
measures. exhaustion of administrative remedies provided.
Di niya inexhaust.
Can you go to court directly to question it and
have your rights declared under that without Second, Was there a violation already? There is a
exhausting administrative remedies? demand to pay. Kasunod nito fifile-an ka ng tax
evasion. In filing a tax evasion what does it
Sa mga ordinansa, you have to distinguish. City
presuppose? That there is a violation you have
ordinance, municipal ordinance, which imposes
violated tax laws. Non-payment of tax would
152
result in a case of tax evasion. The moment the than a construction of a definite right status
taxpayer fail to pay the tax do there is a violation and other relations as commonly expressed
already kaya nga may demand. in an instrument, is not one for declaratory
relief
So when there is already a breach under the Rule
3) Matters of declaration of heirship, whether
63 can you still file a declaratory relief action? No
you're an heir or not, is not proper for
Under Rule 63, there is no requisite of declaratory relief. That is proper
for
intestate and testate proceedings XPN: When the
exhaustion of administrative remedies. But the
parties agreed
Supreme Court under the CDO case, ruled that 4) It will not also apply if the subject matter
the exhaustion of administrative remedies involved political issues or questions (Dela
cannot be disregarded as it is a requisite before Llana vs Comelec)
an action for declaratory relief could be involved 5) Tanada vs Angara: DR not proper on
question or validity of a court decision.
Justiciable controversy - it is an existing Case or
Proper remedy: annulment of judgement
controversy or issues that is appropriate for
(Rule 47 and other post judgment remedies)
judicial determination as opposed to one that is
Registration of voters - MTC (Obeles v. Republic)
contingent anticipatory (problem in the last will
and testament) or conjectural Similar remedies
Under this principle, if you are talking about DR, Reformation of instrument is an action which is
as opposed to interpleader, the plaintiff must broad as a consequence of incompleteness or
always have that existing legal interest in the questions of the instruments where the parties
controversy. Otherwise, dismissed. could have not actually understood or express
their intentions in the contract as the case may
In contrast, in interpleader, the plaintiff has no
be
interest in the subject matter. You are not
claiming in the interest of the property Section 9 of Rule 130: Allows the intervention of
a testimonial evidence over a written instrument
The judicial determination should put to
or a documentary evidence. Grounds where they
whatever rights a party may have under a law
could alter, declare or modify declare an
contract or a will
instrument invalid where the testimony could
A will in essence is a contract because it creates override the consideration of a documentary
rights and obligations. evidence.
Instances as decided by the supreme court General Rule: there may not be evidence that
where declaratory relief will not lie or improper may be introduced other than the document
itself if the agreement has been reduced in
1) In citizenship cases, you want to declare
writing
what citizen are you. Not proper in DR
because it is governed by other laws Exceptions: Will is included among these
2) DEPOCO vs Commissioner of Immigration: instruments and so you can utilize this
Where a declaratory judgment is a disputed testimonial or (inaudible) evidence to overthrow
fact would be determinative of issues rather a documentary evidence so long as you alleged
If the issue is already mooted, hypothetical
153
in the complaint the infirmities as a ground When somebody is claiming over your parcel of
provided under Section 9 Rule 130. land, parang may pinapakita sa deed of sale, and
he wants to take possession of the property, you
When a contract does not express the true
can file quieting of title in order to remove the
intention of the parties, there was no meeting of
issue over here property brought by this
the minds or that the instrument does not fully
questionable title
express what the parties has intended then an
action to reform that instrument or contract Or sinabi niyang naka-mortgage yung lupa, you
could be filed can file an action for quieting of title.
Consolidation of Title - action required in cases

of vendor a retro sale with right to repurchase
Example
This does not apply to auction sale where there
Alma Moreno sold her condominium unit is a necessity to consolidate right title or transfer
to a Chinese. When the Chinese tried to the ownership in an auction sale
take over the unit, Alma Moreno removed
all chandelier and other appliances. So
the buyer protested. “Ang bentahan natin But this is a contract of sale or deed of sale
is whatever is implied is included.” Sabi between two parties which has a period provided
by which the seller or the vendor the right to buy
ni Alma Moreno, “No di na nakalagay yan
back the property and it is proper to be filed
sa deed of sale.”
once the period has expired in order to authorize
There is a disagreement as to what the the cancellation of the certificate of title of the
parties intended in the deed of sale. former owner and the new one is issued in the
name of the buyer
Quieting of Title - one of an action that is
RULE 64 - REVIEW OF JUDGMENTS AND FINAL
imprescriptible, it does that prescribe. It can be
ORDERS OR RESOLUTIONS OF THE COMMISSION
barred only by laches or estoppel by laches but
ON ELECTIONS AND THE COMMISSION ON AUDIT
it is as a rule imprescriptible
It is exclusive to COMELEC and Commission on
Under the civil code, quieting of title is only
Audit
proper or necessary where a plaintiff for
example has a legal or equitable title over the Excluded is civil service commission which is
property or any interest in the real property placed under Rule 43
In addition, there is a deed or claim or Rule 64 is certiorari

encumbrance or even a proceeding witch cast or
Although this is inappropriate because the title
placed his title in questionable position which in
of the rule tells us that it is a review, it is actually
fact such claim is invalid or inoperative although
a continuation of a proceeding conducted before
apparently passing it appears to be valid or legal.
the COA or COMELEC. That's why it is titled
review of judgment..
All parties must be impleaded in the action see example the petition re: interment of Marcos
154
It is actually a review but according to Rule 64, If the decision to be reviewed by way of a petition
the procedure which must be observed in in the COMELEC is a decision of a COMELEC En
proceeding with a petition under Rule 64 should Banc, then there is no requirement for motion for
be in accordance with Rule 65 reconsideration that could be directly filed in the
COMELEC. But not a decision rendered by a
Required to observe the procedures in Rule 65
division,
for purposes of filing this review in the Supreme
Court if we're talking about judgment final Without that motion for reconsideration, the
orders or resolutions of COA and COMELEC petition will be dismissed by the Supreme Court
In Rule 64, there is no application of Neypes vs Just like Section 7 of Rule 65, under Section 8 of
CA. Rule 64, now expressly provides that judgment
or Proceedings below the COMELEC and COA is
The fresh period rule in that case does not apply
not suspended. The proceedings will continue
in rule 64
unless the petitioner would seek provisional
What is applicable for purposes of complying of remedy in the supreme court such as TRO or
reglementary period within which to file before preliminary injunction
the SC Is the old rule, the balance period rule
Doctrine of judicial courtesy no longer applies in
If it is 15 days you have to observe this 15 day proceedings in a petitions for review or special
rule. civil actions for certiorari ecause that has been
abandoned as a consequence of the provision in
Motion for reconsideration is required in the
Section 8 of Rule 64 and Section 7 of Rule 65
COMELEC, if a judgment or final order was
rendered by a division. Sa comelec meron sa iba,
wala
A judgment rendered by a division of a COMELEC

must be subject to motion for reconsideration
under this rules
In consonance with the ruling of the SC in

Cayetano vs. Comelec, the non-observance of
this requisite of MR will merit the summary
dismissal of the petition in the Supreme Court
When you receive the decision rendered by a

division of the COMELEC, you have to file for a
motion for reconsideration and under the
procedure of the COMELEC, that motion for
reconsideration will be decided by the COMELEC
En Banc
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May 21, 2020 GEN RULE: Certiorari is independent, separate

and exclusive with appeals. It cannot be
Rule 65 - Certiorari, prohibition and mandamus.
invoked/it can't be sought for simultaneously or
Later, we will discuss the fine distinction of the alternatively. Certiorari, as they say, is not a
three, including the distinction of injunction as substitute for a lost appeal. When appeal is
an ordinary civil action and quo warranto in available, do not file for certiorari.
respect to mandamus.
XPN: Take note that you are dealing with public
Let's try to find out the Rules which must be respondent. This means you are filing a petition
observed and take note very carefully as there against judge/tribunal/board/officer/etc.
are many XPNs now to the general rule in
In addition, you need to implead private
invoking Certiorari against an appeal or even
respondent who would appear to be a nominal
certiorari simultaneous to an appeal.
party because he is a party whose favor in the
The common denominator of all three civil assailed order has been issued, but has the
action: (1) lack of jurisdiction or exercise in primary and principal duty to defend the public
excess of that jurisdiction or grave abuse of respondent.
discretion which amount to lack or in excess of
So when you file the petition in appellate court,
jurisdiction; and (2) whether this be judicial or
you copy furnish both public and private
quasi-judicial, the rule is that it must be the
respondent because one is the principal and the
exercise of the quasi-judicial/judicial function.
other is the secondary or nominal party
First rule is that certiorari is a remedy that can respondent.
be invoked to correct exercise of jurisdiction or
File it in the RTC, CA and SC (under its
errors of exercise of jurisdiction as opposed to
jurisdiction) = Jurisdiction under BP129 is
errors of judgement.
concurrent.
If it is an issue involving erroneous judgement
perceived by the party then the correct remedy
= ordinary appeal or petition for review by What about other courts vested with appellate
appeal. courts?
Take note. We are discussing an original and 1. tax cases - Court of Tax Appeals (CTA)? Are
independent action, not continuation of the they vested with jurisdiction to entertain
proceeding undertaken in the lower court. petitions of certiorari? YES. In fact, orders issued
by the RTC could be subject to petition for
* In certiorari and prohibition, you have to
certiorari before the court of tax appeal and that
determine whether the assailed order is in the
has been decided by the SC.
exercise of its quasi-judicial/judicial function. If
not then, there is no place for certiorari and 2. Apparently, no jurisprudence involving
prohibition. It must result from an exercise of Sandiganbayan, but the principle laid down in
judicial/quasi-judicial function. this case where the CTA is vested with the power
and authority to entertain the petition for
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certiorari may apply also to Sandiganbayan in Can you file a motion for extension to file a
cases decided or orders issued by the MTCs and Petition for certiorari? Take note that the period
RTCs in criminal cases. The jurisdiction of which allocated by the rules within which the petition
is vested in this respective courts. for certiorari should be filed is 60 days from
notice of the orders sought to be subjected to
Do you still remember the jurisdiction of the
certiorari. Subject to Neypes vs CA, the parties
MTC and RTC, respecting cases involving public
as and in fact are required to file a motion for
officials and private individuals in conspiracy
reconsideration for the new trial for that matter.
with public officials committing the crime in
Applying the Nepes, we will have a fresh period
violation of 'Anti-graft and corrupted practices
rule of another 60 days with which to file a
Act' or RA 3019 with respect to salary grade?
petition for certiorari.
MTC will have jurisdiction over criminal cases in
violation of RA 3019 where the salary grade he
occupied is lower than salary grade 27. 27 Note:
above, Sandiganbayan.
Rule 65, Sec 4 - some proviso 'that allows an
Where lies the jurisdiction of the RTC in criminal extension within which to file the petition
cases involving public officials in committing beyond the sixty day periods under exceptional
acts violation to RA 3019? Determine the circumstances' have been deleted. = [since
jurisdiction of RTC respecting the imposable 2007]
penalty in regard of the salary grade. If accused
"No extension of time to file the petition shall be
occupies a salary grade below 27, but the crime
granted except for compelling reason and in no
committed is punishable over 6 years of
case exceeding fifteen (15) days." = 2007
imprisonment. Above six years of imprisonment,
Administrative notice. - DELETED
the jurisdiction lies in the RTC.
Discretion of the appellate court in extending
Applying these principles in interlocutory orders
the filing of the petition, assuming the
which may be issued by MTCs and RTCs may
application of Neypes vs CA, no longer exists.
also/can also be subjected to petition of
certiorari under Rule 65 and that is my position
relevant to the ruling of the SC vesting CTA
XPN: In the case of Republic vs Saint Paul college,
jurisdiction over Petitions for Certiorari under
the court pronounced in August 2012: "when the
Rule 65 consonant with that jurisdiction in tax
purpose of the extension is to serve substantial
cases.
justice and protect strong public interest that
i.e. In criminal cases violation of tax or NIRC would allow extension." [2012 Jurisprudence.]
where the amount involved is 1 million, that
Two grounds: Reason to serve substantial justice
determines whether the case should be with RTC
and to protect strong public interest.
or CTA.
In that petition that you are to file, for purposes
of determining the timeliness of the petition
(compliance of the reglementary period
157
prescribed by the rules) for purposes of filing Preliminary injunction just what the ABS-CBN is
that petition - (1) indicate the Receipt of the doing in their petition before the SC. Although...
order subject to petition and then (2) the date of
However, pursuant to Giosamar vs DOTC and
the order denying motion for reconsideration
CAAP (Civil aviation commission of the
was received. = To satisfy timeliness in filing
Philippine) case [G.R. No. 217158] decided last
that petition. If not then summarily dismissed for
year (March 2019), the SC made a
errors in providing the exact dates whether that
pronouncement that would guide the bar and
petition is filed under the reglementary period.
the defense to strictly adhere with the rule on
hierarchy of courts respecting petitions for
certiorari. So we are now seemingly reverting
What is the rule of Judicial courtesy?
back to the old rules on strictly complying the
Layman's language: When there is a petition for doctrine of hierarchy of courts with seeking
prohibition, certiorari, mandamus questioning relief with the higher courts where the remedies
the order of the lower court is filed the appellate sought in the petition is available on the lower
or higher court, the lower court or the tribunal courts.
for that purpose before the officer should pay
Look at the dispositive portion of this decision
attention to the filing of this petition and give
of this case. - Where the SC reiterated the strict
due courtesy to the result of this petition
admonition to the defense and the bar to strictly
referring any action on the case at the moment
adhere to the doctrine of hierarchy of courts. It's
(= meaning pending that petition. It has to await
good that the supreme court enunciated this in
the outcome of the petition). So the lower court
the case.
has to suspend the proceeding to await for the
decision of the appellate court respecting the
petition filed before it.
So what should the party do? He should apply for
That judicial doctrine/principle is now TRO or PI or mandatory injunction as the case
abandoned pursuant to Sec 7 of Rule 65. Also, may be in order to suspend, to stop, to enjoin
Sec 8 of Rule 64 as discussed earlier. the lower courts, tribunal, etchetera from
proceeding with the case in the meantime that
the petition is pending before the higher courts.
SIMPLE TERMS: There is no more principle of
Sec 7, Rule 65 mandates the lower courts to
judicial courtesy that is observed in respect to
proceed to expedite the proceeding. Never mind
petitions under Rule 65. This is because of Sec
the petition at the appellate court unless an TRO
7, Rule 65 expressly tells us: that the
or preliminary injunction has been issued
proceedings below is not suspend by the mere
precisely to give way to the proceedings being
filing of that petition.
undertaken by way of petition filed in the
So what happens? If the parties filing the petition appellate court.
wants to stop the proceedings below, then it has
In crim case, you file a motion to quash. DENIED.
to apply for Injunctive relief: either a TRO or
As a rule, the remedy is to proceed with the trial,
Certiorari will not ordinarily lie. The proceedings
158
in that criminal case shall proceed in due course * So always do not forget the proviso under Rule
and to await for the final verdict or judgement. 65, SEC 1-3: There is no plain, speedy and
So.. Ordinarily, Certiorari will not lie from the adequate remedy in the ordinary courts of law
denial a motion to quash, but there are except this petition to promptly relieve an
exceptions to this. injurious effect of a patent erroneous or
mistaken order issued by the court or by any
When the motion to quash is denied, look at Rule
officer or etc.
170 - A Motion to quash. Of course, there are
now grounds which would not allow consonant Under this exceptions, motion to quash denied
with Continuous trial act, trial in criminal case can be a proper subject for certiorari.
rule effective in 2017.
However, the SC in (2005) laid down the

In appeals, vis-a-vis, certiorari, as we said and
following exceptions for filing the petitions of
as jurisprudence already tells us: "The rule that
certiorari as a consequence of denial for the
certiorari and appeal are mutually exclusive and
motion to quash in the case of DBP v Lacampana
independent from each other" has several XPNS
development corporation. Found in Sec 1-3.
to this.
1. Trial Court issued an order of denial the
In fact, even a lost appeal, certiorari could be
motion to quash without/excess of its
given a chance/taken cognizance by the
jurisdictions.
Appellate court under several circumstances or
For example petition is filed in MTC, but has no conditions. A lost appeal for example, although
jurisdiction. Then going to trial is a tedious proper remedy is appeal, has been lost.
process, a waste of time because there is in the Ordinarily as a rule, the final judgement is final
first place a jurisdictional issue. and unassailable. Of course, it is always and
ordinarily understood that a petition for
* Certiorari is not proper remedy if there actually
certiorari filed signals that an appeal is
a lack jurisdiction from the very beginning = The
unavailable because of the period allowed/filing
proper remedy is prohibition.
of that petition.
2. There is patent grave abuse of discretion.
The judgement becomes final after 15-30 days
(Proviso in sec 1-3: There is no plain, speedy and
or 48 hours (in the case of habeas corpus).
adequate remedy available on the ordinary
course of law because appeal will not promptly
relief the defendants from an injurious effects of
XPN: Certiorari will lie after a lost appeal.
patently mistaken order.)
Certiorari can be invoked as a remedy where an
So if the order is patently erroneous, appealing appeal is unavailable or lost.
the decision probably in the future will be a long
1. When public welfare and public policy
and tedious process which cannot immediately
dictates/involved.
or promptly give justice to a defendant. In this
particular case, Certiorari will lie. 2. When brooder interest of justice requires it.
159
3. When the challenged order issued is null and abandoning their appeal and the subject matter
void. of the petition exclusively for purposes of
questioning the orders made by the court after
That's very elementary. If it is void then it has no
judgement has been appealed concomitant to
effect at all.
the issuance of that writ of execution.
4. When the question order amounts to an
As also ruled in Manapok v Equitable PCI bank
oppressive exercise of judicial authority.
(2005) case, SC said: appeal from judgment does
Oppressive is the word often used in petition for not bar a petition for certiorari against the order
prohibition. granting execution pending appeal. These are
actually incidents which on account thereof that
5. When appeal is not adequate and not speedy
the RTC issued subsequent orders after an
or ineffective. <- codal
appeals has been duly perfected.
Certiorari can be filed side by side with an appeal

Look at this case of Lansang v CA (1990) and the
without abandoning a perfected appeal. By way
other case of Manacop v Equitable PCI bank.
of XPN, SC enunciated the rule that an appeal
There also, the SC ruled in Manacop: "the rule on
could co-exist with a petition for certiorari.
Simultaneous filing appeal and petition for
In the case of Lansang Jr. vs CA (decided in certiorari will not be allowed."
1990), there was this case filed and decided by
Ordinary appeal under rule 41 and petition for
SC. Out of that decision, the defendant (losing
Certiorari under Rule 65 cannot be allowed, but
party) filed a perfected appeal from RTC to CA
this prohibition results from the finding that all
by way of appeal. The case has already been
the incidents that are supposedly raised both in
ordered by the trial court to be elevated to the
an appeal and certiorari can be decided totally in
CA because appeal has perfected. Subsequently,
an appeal.
the order was issued by the court which now
denies or has out of that case appeal would be Unlike ordinary appeal where there could not as
injurious to the appealing party. There are a rule reception of evidence, in Certiorari,
incidences acted by that court pending appeal. prohibition and mandamus (these being original
action), the appellate court where the petition is
Example: Court issued an order execution
filed has (all that power and authority) ample
pending appeal. As a matter of discretion, the
authority to receive evidence, to establish and
court issued an order of execution of judgement
rule on issues involving questions of facts. This
pending appeal. Appealing party filed a petition
being an original action, the appellate court all
of certiorari questioning the execution pending
that power and authority to receive evidence.
appeal. SC ruled that certiorari is proper because
This is seen in the case of Marcelo vs ABC bank
of the injurious effects of the order which was
(2011).
issued by the court subsequent to perfection of
that appeal. In that case, the appellant expressly
alleged in his petition that they are not
160
Motion for reconsideration. (6) Motion for reconsideration would be

apparently useless
These are matters involving interlocutory order.
As always, the orders/subject matter of petitions *Why useless? It will reiterate the issues tried by
is interlocutory and predicate motion for the court.
reconsideration is required to be filed with the
(7) Deprivation of due process
lower court/quasi-judicial body before a party
could proceed to file a petition for Certiorari, (8) Extreme urgency to secure the relief
prohibition or probably mandamus. That is
*EX. Need TRO, Injunction right away OR set
made as a requisite/predicate to allow the court
aside and nullify the order.
to correct itself at the first instance on the
assumption that the errors (if pointed out) can (9) criminal case from an order of arrest.
be resolved and reconsidered by the lower court.
*Urgent. No plain, speedy and adequate remedy
XPN to this GRN requiring a prior petition for and that the court where the petition is pending
reconsideration before a petition of certiorari, won't grant relief to relieve you from that arrest.
prohibition, etc can be applied. That means the
Classic example: General rule of Denial of bail is
requisites, MR, can be excused/unnecessity for
that "you have to go to the process of trial."
the following:
Cannot have immediate relief from the warrant
(1) Order is patent nullity. of arrest but bail is denied.
*court has no jurisdiction. In one case, SC ruled that where "Court would
issue that order of arrest is without jurisdiction
(2) Issues to be raised and to be passed upon in
over the criminal complaint/case with more
a petition of certiorari have been duly passed
reason that the denial of bail can be subject of a
upon because this is the same issue raised
petition for bail as in fact there can be a denial
proceedings below which the court had already
to the right to liberty."
ruled.
(10) Lack of due process/jurisprudence
* That means the subject matter of the petition
proceeding.
is merely a repetition of the issues that had been
raised and ruled upon by the lower courts. (11) Ex parte proceeding/trial where the party
was denied his right to present/object the
(3) Urgent necessity for the resolution of the
evidence which is denial of due process.
issue/question
*This can be subject to certiorari and can be
(4) Any further delay would prejudice the interest
questioned through a petition for certiorari as
of the petitioner, moreso if the petitioner is the
clearly there is a denial of one's right to due
government.
process.
(5) Instances where subject matter of the petition
(12) Issue is one raised purely of law or where
is perishable property.
public interest is involved or when public
interest is involved.
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*In this case, motion for reconsideration not power to relax rules of procedure, certiorari may
necessary. lie.
[One can file certiorari without satisfying the

motion for reconsideration as a rule.]
What is the effect of an order?
Certiorari is available to denial to demurrer in
Supposedly/ordinarily, it nullifies and synthesize
criminal case.
the order. Here, you will note that in the case of
Motion for leave of court to denial to demurrer Arroyo vs Sandiganbayan, the SC in a far-
consequent to rule sec 23, Rule 119 of rules of reaching pronouncement (because it has
court and demonstrated in Arroyo vs declared that there was no evidence to support
Sandiganbayan. the guilt of the President) acquitted Arroyo in a
petition for certiorari.
Remedy available charged with offense whose
motion for leave for his demurrer was denied? Whereas, if you look at the procedure, nullifying
Under sec 23, Rule 119: "The order denying the and synthesizing the order. This is logical
motion for leave of court to file demurrer to because what the ruling of SC clearly
evidence or the demurrer itself shall not be demonstrates is to avoid a tedious process of
reviewable by appeal or by certiorari before litigation that would necessarily result and
judgment." require the SC to declare the innocence/acquittal
of the former President as a consequence of
"(Last paragraph) shall not be subject to appeal
grave abuse of discretion attributed to
or certiorari." That means you can't question
sandiganyaban in denying the motion for
motion of demurrer or permission to file
demurrer of evidence.
demurrer.
However, SC en banc, ruled otherwise. In the

case of Arroyo vs Sandiganbayan (July 19, 2016), PROHIBITION
"where clearly there is no evidence (CJ Bersamin
cited the Universal declaration of human rights)
the absence of evidence to support guilt beyond What distinguishes prohibition from certiorari?
reasonable doubt and by virtue of the SC to relax Sec 1 and 2 of Rule 65.
the rules of procedure. Certiorari could be
> Grave abuse of discretion that means the
available in order to give meaning and substance
discretion is exercised in a whimsical,
to justice. Why? Because according the CJ
capricious, and despotic, manner so grave.
Bersamin, to require the accused to go through
the tedious process of trial when anyway there is - Insertion of the word. A magic word that
no evidence available that could support the separates the duo: ministerial, now includes
guilt and conviction of the accused to the crime ministerial duty and function. Lack of
charged then it is better that certiorari shall be jurisdiction or grave abuse of discretion
allowed to relieve petitioner of the tedious amounting to lack or in excess of jurisdiction, it
process of litigation." So, in the broadest interest now includes the exercise of ministerial
of justice and equity and consonant with the SC's
162
function. Ministerial then don’t file certiorari. issue moot, this will not prevent the SC to decide
Although, there are so many instances, the on the issue for a future guidance of the bar and
erroneous designation of a petition whether it is the courts alike.
a prohibition or certiorari would not trigger or
*If it is capable of being repeated then SC will
result to a dismissal of the petition. Ordinarily
decide on the moot issue.
and as a ruled, SC can still treat petition for
certiorari as one of prohibition because the
designation is not even controlling as far as a
[MANDAMUS]
pleading is concerned. What is controlling is the
allegation or body of petition. The reliefs can be *Just like a mandatory injunction, what is
consolidated and are allowed, but going by the essence and exclusive subject matter of
express or codal provision, the word ministerial mandamus?
has been exclusively made for petitions for
Mandamus meaning you are mandated to do
prohibition.
something because it is your ministerial duty.
Something which you have no more discretion,
no amount of discretion is left upon you, but to
What is the nature of prohibition?
perform an act required by law. There is a
- It is actually a petition to enjoin and prohibit neglect/evasion of a positive duty mandated to
the performance of an act or continuance of an be done performance thereof.unlawful exclusion
act which is a nullity precisely because of the of party for the enjoyment of position to which
lack of jurisdiction. Even if it has jurisdiction, he is to be entitled. Not something it must be
there has been a despotic, whimsical and done because you are required by law to do so.
capricious exercise of that jurisdiction, moreso
Example. Here is a judge, criminal case pending
grave abuse of discretion.
in his sala for one year, but records have shown
You can file a petition for prohibition to stop, to that the accused has shown he has yet to be
prohibit the continuance and because there is no arraigned. Is there a law that has been violated
appeal in fact and there is no other plain, speedy by this judge? If there is, what remedy? In
and adequate in the ordinary course of law, flagrante delicto crime thus detained, but is still
prohibition will lie. Now, can prohibition be there for an entire year, not even an arraigned
availed of (just like injunction) if the order has conducted by the court. Was there a dereliction
already been consummated? *Consummated = of duty? – Speedy trial (legal right denied) Law of
meaning, the act complained of is a matter speedy trial.
accomplished/done.
- He can file for mandamus remedy due to the
> Prohibition is preventive. When acts have inordinate delay of his violation of speedy trial.
already been consummated then both
As early as in Tatag vs tanodbayan, even before
prohibition and injunction will no longer
enactment of law of speedy trial. In this case, the
apply/available. However, the SC made a
accused waited for three years and finally filed a
pronouncement that even though duly
motion to dismiss which was denied. The
accomplish or consummated that renders the
163
remedy is mandamus because SC there was a Deprivation of an office – Is this a subject matter
constitutional violation to the accused for of quo warranto?
speedy trial. Criminal case be dismissed on the
- Rule 66 where a person is excluded from an
account to violation of speedy trial and that the
enjoinment of an office where he is entitled of
dismissal with prejudice because there is a clear
an office. Is that not subject of a mandamus or
and unmistakable legal right right under the law
quo warranto?
in favor of the person. A well-defined right –
speedy disposition of his case. In the case of Garces vs CA, SC if position is
being disputed by two persons who both claim
right to that office, mandamus will not lie. The
Take note Ministerial and discretionary. remedy is quo warranto. Why? Because there is a
issue that must be resolved – The title of both
In the case of inordinate delay, you are not
claimants to that office. Also, in Acqueba vs
asking judgment in your favor, you are merely
Manzon, mandamus will not lie in a contractual
demanding your right which has to be
obligation because this is not one resulting from
performed/complied. That is Ministerial. -
office, trust or station.
Compel performance of that duty (grave abuse
of discretion). Not requiring the judge to rule on Gloria vs De Guzman, SC ruled that appointment
your favor or to resolve the issue or in accounts of a person in an office cannot be a subject to
of laws that exist. mandamus. You cannot compel the person to a
particular position, no matter how qualified the
If there is dispute and that there is question to
person is.
be resolved, then the amount of discretion left
to the judge/officer, then mandamus will not lie.
Class Valevictorian PMA case not allowed to Distinguish Quo Warranto v Mandamus under
graduate, representative by PAO, filed a petition Rule 66:
for mandamus to SC to compel superintendent
(1) In Mandamus, proceedings will clarify legal
to allow cadet to graduate because of the
duties and not titles. Instead of title, Mandamus
accused’s violation of rules of Philippine military
resolve legal duty that must be ministerial. In
Academy. SC denied petition for mandamus
Quo Warranto, what is resolved is the issue of
because there was that discretion given to the
the legal title of the office or the franchise.
superintendent of PMA to allow/disallow a cadet
to graduate where there is corresponding *Ex. CJ Sereno - subject to Quo warrant now a
involvement of violation of the rules of the landmark decision 155 pages long which will be
academy. discussed in the next room Rule 66.
* You cannot compel when there is discretion Oust a person out of office and the determining
that could to be exercised in accounts of the factor is whether you're entitled to that office
laws and rules that exists. whether you're qualified in that office? Not
mandamus, but quo warranto.
164
If it is franchise like ABS-CBN, whether that (5) Rule 45 - extension can be granted to file
franchise is valid/defective and in order to petition for certiorari on review not exceeding 30
revoke the franchise? Quo warranto. days. No longer allowed under Rule 65.
(6) Rule 45, being a final judgement or order, no

motion of reconsideration is necessary. Rule 65,
(2) In Mandamus, the person who's supposed to
subject to XPN, motion of reconsideration
occupy that office that excludes the petitioner
required.
who claims to be entitled to that office is not
claiming right to that office, but he is (7) Rule 45, perfection of a petition for review
nonetheless, excluding the person who is legally suspends the judgement automatically. Rule 65,
entitled to office. pursuant to Sec 7, no suspension of the matters
suit or subject matter of the petition.
* So he is not claiming, but he is there sitting and
he prevents and excludes the rightful person to (8) Rule 45 - original parties in the action. Rule
that topic. 65, principal respondent is the judge, the public
respondent for that matter, and nominally the
> In the case of Sereno, she usurps that office
private party below.
because she claims she was validly appointed on
account to her being qualified to that matters. (9) Rule 45 - exclusive to the SC. Rule 65 -
The issue is rooted on WON she was really Concurrent SC, CA, SANDIGANBAYAN, RTC, CTA
qualified and therefore entitled to occupy the as discussed, depending on subject matter.
office.
* Read this for hierarchy of courts rule: Giosamar
v DOTC and KAAP
Certiorari by appeal (Rule 45) v Certiorari by (10) In both rules, it may be dismissed outright
review (Rule under 65) summarily (SC) because the appeal is
unmeritorious or prosecuted for manifested
(1) Rule 45 is a review on appeal, a continuation
delay, frivolous, or if there are errors that it is
of the proceeding. Rule 65 is an independent
insubstantial that will merit reversal the
and original action.
decision.
(2) Rule 45 is intended to review a final
judgement/order. Rule 65 directed at
interlocutory order. Prohibition, mandamus, injunction
(3) Rule 45, question of law = only pure - Prohibition the object is either quasi-judicial,
questions of law. Rule 65 the issue raised is judicial and ministerial function.
jurisdiction or excess of jurisdiction or grave
- In Mandamus, exclusively ministerial.
abuse of discretion.
- Injunction, an ordinary civil action which is
(4) PERIOD: Rule 45 - 15 days. Rule 65 - 60 days.
directly against specific defendant
(private/public) for violation of a private right of
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the applicant/plaintiff. There is a violation of this injunction - this can be applied for based on the
private right, not even in Mandamus. merits), will that be proper?
YES. The matter of injunctive relief sought is a

provisional remedy with the application of
Prohibition and injunction
provisional remedy of injunction, but not an
- Injunction, unlike prohibition which is a original action which is an ordinary civil action
principal action, maybe principal or provisional or an injunction.
remedy.
* Remember. You cannot, in one petition or
-In an injunction, it is directed against a complaint, apply for and seek relief in an
particular party not directed against a court, ordinary civil action combined with a special civil
tribunal or an agency exercising quasi-judicial action. That is prohibited.
function, but it is directed against private party.
= This is not an original action.
- It is not a question of jurisdiction unlike of
prohibition where it has to have an issue about
lack or excess jurisdiction or grave abuse of Q: Supposedly ABS-CBN filed petition for review
discretion. on CA under Rule 43, would that be valid/proper
procedure and venue out of the CDO of the NTC?
- Injunction, it is always about private right that
is sought to be protected and violated. - available since NTC is quasi-judicial agency
then they are coequal with RTC, but this is an
interlocutory order which ABS-CBN is required to
Mandamus and prohibition, what are the basic file a motion for reconsideration.
distinction between the two for easy reference?
Failure to comply will have said motion to be
- Prohibition is one that will prevent, prohibit or denied.
enjoin an act by a public respondent.
* But even under rule 65, it should have been
- Mandamus is to compel an act, the other way filed in Court of Appeal as discussed in GIOS-
around. SAMAR VS DOTC and KAAP
Both are directed against a judicial or non-

judicial entity that are exercising without
[QUO WARRANTO]
powers.
Landmark decision: Republic v Chief Justice
(mandamus is ministerial. Take note. Prohibition
Sereno.
also extends to ministerial functions.)
If you are looking at Quo warranto discussed in
Q: Regarding the petition of ABS-CBN
relation to mandamus, it is an action by the
They filed petition for review under rule 45 government which has to be filed within one
Certiorari and prohibition, (TRO and preliminary year from accrual of a cause of action. In fact,
that is one of the issue raised in Sereno case.
166
Prescription period: Intruded it as a substantive

matter, it must be filed within one year and has
In Sec 1, Rule 66, there are 3 subject matter
been clarified in Sereno case. The matter of
which is the proper subject for Quo Warranto:
estoppel and latches not work against the state
(1) Usurpation of office, position and franchise and rightly so as it is a sovereign authority.
(that is the primary subject matter) against one,
a person who is an usurper (who occupies and
usurps that office or intrudes into or unlawfully This is an action which allows splitting of cause
holds the office that exercise public function or of actions. Remember the rule that party is
enjoys such a franchise) prohibited to splitting the cause of action of
action. Here, if the claimant to an office is
(2) Against a public officer (who does or suffers
judicially declared to be so entitled to that office,
an act which by provision of law constitutes a
he may file subsequently within another one year
ground of the forfeiture of his office).
from entry of that judgement as provided for in
(3) This refers to Association, which includes sec 9, Rule 66, an action for damages.
corporation. Those entities which supposedly
Unlike in Rule 65 where damages could be
created under the law, such as partnership,
awarded because of the provisions provided that
association, corporation as the case may be. This
the court in which the petition under Rule 65 is
involves their franchise and we have to take note
filed could award such other reliefs, that
whether the corporation is a de jure, de facto or
includes award for damages.
something that is by estoppel.
In quo warranto, there is a necessity to file
* The only juridical entity that may be subject to
another action if the party considers securing
Quo warranto that can be filed by the OSG is a
damages on account/resulting from the
de facto juridical entity. - De facto corporation
exclusion to that office to which he was entitled
is a corporation incorporated in good faith,
to, aside from the judgement of quo warranto
nevertheless it has been issued a certificate of
where under pursuant to Sec 10, Rule 66 he
registration (defective) by the SEC for failure to
would be entitled to books and papers.
meet all the requirements imposed by law. For
example one of the incorporator is a minor or He could still maintain action of damages in quo
there is a SPL that requires a minimum warranto.
requirement of capital which was escaped the
eyes of the SEC. = Could have been de jure had
it met the requirements. Third relator used in quo warranto action.
In Republic v Sereno, there was a relator: Eligio

Mallari, past chairperson of CHR.
Where a person is entitled by an office usurped
by another, therefore there is a necessity where - If the person who is legally entitled to the office
there is an illegal assumption of office that does not want to file a petition by himself
leaves to usurpation of that office, quo warranto because in instances provided for in section 1,
would be proper. there is an allowance made by the rules both to
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the Solicitor General and the claimant of the May 26, 2020
office who can directly file on a petition, but
there is an action.
At the cause of the filing of the Solicitor I. Rule 69: Partition

Generator or in instances where only the Solicitor
General could initiate a petition for quo Partition is the division of property done
warranto as nobody has lay interest in the office, judicially for purposes of ending co-ownership.
only the republic is interested to question and The only limitation with regard to partition is the
determine the qualification of the office. prohibition that may be provided by a testator I
his las will and testament where he willed that
* Reason why one year prescriptive period under certain property could not be divided and
Rule 66 will not lie in this case, because this is distributed among his heirs for a period of 20
not a claim of a private person to that office, but years.
the state. Also stated in Galano vs Roxas.
Nonetheless, that this is the law over the
What is a relator? He is a person who urges the
properties of the decedent but limitations
Solicitor General to commence a quo warranto,
barring partition is limited to a period of 20
providing the Solicitor General probably with
years according to the civil code, after 20 years
evidence, materials for purposes for filing a
the heirs was supposed to inherit from the
petition for quo warranto.
testator or any of them can demand the partition
of the property. Now take note that under the
law partition is mandatory among the co-
owners.
The reason for this is that co-ownership is

frowned upon by law it is look upon with disfavor
therefore a co-owner to a proper can demand
partition unless otherwise covered by a
prohibition made by the testator in his last will
and testament which was duly probated but that
limitation is only unto 20 years.
So, partition may arise as a consequence of co-

ownership by virtue of inheritance or by virtue of
sale. As you will note pursuant to Sec.1 of Rule
74 with respect to the heirs partition is among
the mode of dividing an estate, that means, it is
not as always towards to divide an estate the
heirs inherited through a judicial settlement of
estate among those who are allowed either be
partition under Rule 69 and extra-judicial
168
partition. It shall be determined juducially how This arises only when there is a necessity in
the property should be apportioned to several which the court would determine whether the
co-owners. parties agree or disagree to a certain extent of
the partition which the property could be
Under Rule 69 and as of ruled by the Supreme subjected for final distribution.
Court, in the case of ONORIO vs DUNU-AN. What
are the subject matter that must be first So you go through the filing of petition for
determined by the court, well the first subject partition and a person who files a petition for
matter to be determined by the court is of the partition may be subject to suspension of his
right of partition, whether co-ownership really petition, if for example the property is an
exists. Wherein a petition is filed by the co- inheritance which one of the co-heirs files a
owner the court is called upon to pass first the petition for partition but subsequently a will was
issue whether there is the existence of co- discovered that action for partition shall give
ownership and therefore the right arises to way for a probate of that will there shall be a
demand partition. suspension for that action the moment the will
is discovered and presented for probate.
Now the next step is of course partition, but
there is another subject matter which the court II. Rule 70: Forcible Entry and Unlawful Detainer
shall resolve and that is accounting. For
example, the property is earning, what are the
fruits that consequently derived from that This is the only special civil action which is
property that should be included in determining covered by the rules on summary procedure.
the partition. Two kinds of special civil actions one forcible
entry and two, unlawful detainer. Both
Just like expropriation, foreclosure of real estate presuppose an unlawful detention of a property
mortgage, partition is also an action which from the rightful person who is entitled to the
involves several final orders or judgements and possession of the property. Take note, just like
therefore it is an action that is susceptible of replevin in Rule 70 the primary issue to be
multiple appeals in the period to take an appeal determined is the right to possession not
is 30 days. ownership.
Partition may involve not only real properties but Although ownership can be raised an issue but
also personal properties. You will note under according to the Supreme Court, in a settled
rule 69, there is a provision which may jurisprudence this matter is to be decided only
necessitate the appointment of commissioners by the court in pursuit or by necessity to
just like in expropriation but this is not determine the issue of possession, therefore the
mandatory. In so far as expropriation is determination by the court as to the ownership
concerned the appointment of the commissioner or title of the property is merely provisional
is mandatory, unlike in expropriation in partition because it is limited only to determining the
appointment is not mandatory. rightful possession of the property.
169
Now, this is a real action, therefore the For purposes of jurisdiction, do not also confuse
complaint for forcible entry or unlawful detainer yourself because at present under the
must be filed with the court where the property amendment of BP Big. 129 the MTC can also
is located and jurisdiction is exclusive for exercise jurisdiction over actions reinvin-
purposes of forcible entry and unlawful detainer, dicatoria and publicana but that would depend
it is exclusive to the Municipal Trial Court or the on the assessed value of the property and
courts of first level and the judgment in this whether the property is located within or outside
action is immediately executory unless Metro Manila the determine amount would be
otherwise an appeal is perfected and a required 50k or 20k on whether it is in Metro Manila or
supersedes bond be posted by the losing party. outside Metro Manila.
However, if you look at Section 21 of Rule 70, If it is accion publiciana then naturally that action
where the judgement of the MTC has been shall be proceeded under the regular rules of
affirmed but he RTC a farther appeal by way of procedure it is no longer covered under the rules
petition for review under Rule 42, from that on summary procedure. So after one year do not
decision of the RTC in the exercise of its file forcible entry or unlawful detainer but
appellate jurisdiction is immediately executory instead if it is primarily to determine possession
despite the appeal having been perfected in the file an accion publiciana if on the other hand the
Court of Appeals. matter would involve the determination of
ownership then it should be accion
Sec. 21 of Rule 70 will tell you, that a supersedes reinvindicatoria.
bond and a timely filing of that petition for
review will not suspend the execution of that What distinguishes forcible entry from unlawful
judgement limited however to effecting the detainer, well if it is forcible entry, the
losing party or the tenant for that matter. possession of the property is unlawful from the
beginning, that is from the start the person had
Do not confuse this forcible entry and unlawful occupied a property without any legal right.
detainer cases which is a primary action for
purposes of determining possession to Accion In contrast, if it is unlawful detainer, the
Publiciana and Accion Reinvidicatoria, because possession from the beginning is lawful or legal
accion publiciana is also a possessory action in but subsequently it becomes illegal by reason of
contrast if it is an accion reinvidicatoria it is an probably a violation of a contract of lease or by
action to determine ownership. reason of the expiration of that contract of lease,
so from that moment possession becomes
Accion publiciana is available where the cause of unlawful. So there is a retention of possession
action for forcible entry or unlawful detainer has which is no longer sanctioned legally.
prescribed. This means that after one year from
the accrual of the cause of action you can no In forcible entry the illegality of possession may
longer file these possessory action under rule 70 arise by reason of (FISTS) force, intimidation,
but instead you have to file accion publicans. strategy or stealth, any of these when
possession arises from any of these that
constitute a ground for forcible entry. It is quite
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important for us to always remember when does Now, is provisional remedy available in forcible
this prescriptive period of one year to file this entry and unlawful detainer? Yes, pursuant to
action commences to run against the rightful section 15 to rule 70 provisional remedies of
possessor of the property so that he will not be mandatory injunction is available but that can be
barred to file an ejectment suit either for only to the extent of forcible entry.
unlawful detainer or forcible entry.
Is demand jurisdictional, meaning prior demand
In unlawful detainer, the period is counted from to vacate? It depends, if it is unlawful detainer, it
the date of demand to vacate, if there are several is jurisdictional but in forcible entry cases it is
demands it should be as a rule from the last not jurisdictional. So be careful that demand
demand but take note that if the subsequent becomes a necessity as it is jurisdictional in
demand to vacate is a mere reiteration of the unlawful detainer cases but not in forcible entry.
first demand to vacate, Supreme Court said the
one year period should be counted from the Furthermore, the law does not distinguish in
service of the first demand. forcible entry even if it is through stealth. Now,
where demand is a requisite and therefore
The expiration of that one year period is jurisdictional Justice Brion in 2015 ruled that a
determined from the date of service of the first simple demand to vacate is not sufficient is not
demand because subsequent demands were a valid demand, a notice to vacate is not
merely reiteration of that first demand. complete and will not vest jurisdiction to the
court in so far as unlawful detainer cases, what
Whether it is a violation of a contract of lease or is required to justice Brion is that a demand must
expiration ofcontract of lease where there was a specify what are the grounds it must explain it
demand made take note that the general rule is must state sufficiently why possession becomes
that the one year period to be computed from unlawful.
service of the last demand and the exception is
where however the subsequent demands made So, when a demand letter is addressed to the
are mere reiteration of the first demand the one tenants simply requires him to vacate property
year period should be counted from the service without stating the grounds thereof that demand
of the first demand. is not a valid demand in contemplation for
unlawful detainer for purposes of jurisdiction it
In forcible entry, from the date of illegal entry to must therefore specify what are the violations
the property, however, take note that if the what is the ground why demand to vacate is
occupancy or possession of the property is by being demanded from a tenant.
stealth Supreme Court said the one year period
shall be determined and counted from the date Since this is covered by the rules in summary
of discovery and notice to vacate. So stealth is procedure you will note within which the period
treated differently from those other grounds to file an answer is shorter, 10 days to file an
stated. Stealth should be dealt with in so far as answer from service to of summons and there
with the one year period from the time of are prohibited pleadings and motions, these are
discovery. provided under sec. 13 Rule 70.
171
One of these is a motion to dismiss except on been duly complied.So if the parties had
two grounds. As a general rule motion to dismiss undergone this barangay conciliation a
is a prohibited motion in ejectment cases the certification to that effect will be presented in
exception is a motion to dismiss grounded in court together with or attached to the motion to
eitherlack. Of jurisdiction over the subject revive and the case will be revived.
matter or failure to comply with condition
precedent under the local government code Now if you look at Section 13 another motion
which is prior baranggay conciliation when that is prohibited is a motion for
necessary unless otherwise exempted from proir reconsideration. Take note that there is no pre-
barangay conciliation such as where the one of trial under the Rules on Summary Procedure but
the parties is a juridical entities or where there is there is preliminary conference which under the
a prayer for provisional remedies or where there rules on summary procedure has the same
is a necessity to meet a prescriptive period object and the same subject matter as that of
within which to file an action, so you don’t need pre-trial.
that anymore.
Are lawyers allowed to appear in ejectment
A motion for reconsideration is prohibited. You cases? Yes, lawyers can appear in ejectment
cannot avail of Rule 37 in ejectment cases cases.
because the primary object of summary
How about in small claims? No, lawyers are not
procedure is to expedite, to resolve and decide
allowed. so, do not be confused, in summary
speedily this kind of action.
procedure lawyers are allowed whereas if you are
If the case is dismissed for failure to file or to talking about cases falling under the rules on
undergo a prior barangay conciliation that is an small claims, lawyers are prohibited to appear.
instance where that action can be revived despite
dismissal where an action for ejectment is
Preliminary Conference is mandatory.
dismissed for failure to comply a condition
precedent required by law that dismissed action
Supposed the case was dismissed because the
can be revived, it is an exception to the rule that
plaintiff together with his lawyer failed to
once the action is dismissed your only remedy
appear, at that stage of the action, can you file
available is to appeal or refile unloosed barred
for a motion for reconsideration from that
by res judicata.
dismissal?
In this case there cannot be res judicata because
the dismissal is by virtue of a motion to dismiss Now, under Rule 18, it is provided that the
which is not an adjudication on the merits provisions of on Pre-trial shall be applicable for
because the ground is merely failure to comply preliminary conference. As I have told you earlier
with barangay conciliation. the basic purpose and objective of preliminary
conference is no less pre-trial. So if the
Now, the revival can be had by filing a motion to defendant failed to appear so the defendant can
revive and providing the court evidence that still file a motion for reconsideration and stating
indeed the required condition precedent has therein the ground on why he failed to appear.
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Do not file a motion to declare the defendant in

In the case of Lucas vs Judge Fabros, the default where the defendant fail to file that
Supreme Court ruled where a motion for answer within the reglementary period or has
reconsideration from a final order is predicated filed that answer outside instead file a Motion to
on the ground that the order was not a final Render Judgment.
order or judgement on the merits a motion for
reconsideration is not a motion prohibited in Since the motion for default is prohibited,
contemplation of a prohibited motion for section 6 of the Rules on Summary Procedure
reconsideration under the rules on summary has expressly provided that remedy to the
procedure. So determine whether the order of plaintiff, that is to file a Motion to Render
dismissal is a final order as a result of an Judgement or if the plaintiff fails to file the same
adjudication on the merits. even the court on it own can render a judgment
on the basis ofthe allegations in the complaint,
What if the dismissal is based on the non- on the basis on the facts, alleged in the
compliance of the required condition precedent? complaint and of course the supporting
Of course all the more its not only a motion for evidence.
reconsideration but a motion for revival as we
There is no trial because this is summary, when
already have said that would warrant the case to
an answer is filed the court do not conduct trial
be reactivated.
or hearing as a rule there is only one exemption
and that is for the court to conduct a clarificatory
So unless, a judgement or a final orderis one of
hearing if it becomes necessary under the
an adjudication on the merits, a motion for
circumstances what follows next is order of the
reconsideration from that final order could be
court to file simultaneously so far as these
filed.
parties are concerned their respective position
papers attaching therewith a duly notarized
Is there a default assuming that the defendant
position paper attaching therewith all the
did not file an answer in the 10 day period
relevant and admissible evidence to support
allowed to him after service of summon can a
each and every allegation and defenses.
plaintiff file a motion to declare the in default?
There is no default in summary procedure.
After the submission of that position paperwhich
naturally seemed to be the last pleading in
So if there is no answer what is the remedy to
summary procedure, the court is mandated to
the plaintiff?Under section 6 of the rules on
render a judgement within a period of 30 days.
summary procedure provides that if the
defendant failed to answer the court on motion Among the pleadings also prohibited pursuant
of the plaintiff or motu proprio shall render Sec. 13 if you look at it, is a petition for
judgement warranted by the facts alleged in the certiorari, prohibition and mandamus, so you
complaint however the award of judgment shall cannot file these petitions, that is as a rule.
be limited to what is prayed for by the plaintiff.
They are prohibited if the matter raised involves
interlocutory orders. But if it involves now final
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orders or even the judgment it is no longer Whether you are the owner or not provided that
prohibited that’s the logical conclusion that you have a right to possession over certain
excludes therefore petitions resulting from a properties, whether it is a private person or
final order or judgement because what is entity or governmental agency even the republic
prohibited so far as this petition are concerned itself where it has the right of possession over
are mattersarising from an interlocutory order. the property then it could be the rightful person
who can initiate an action for ejectment whether
Suppose there is no order at all, can you file a forcible entry or unlawful detainer cases.
petition for mandamus? If there is no order at all
it is very fundamental that it is or embraced by Now, here is a defendant, lessee who was
the prohibition. But in one case decided by the previously ejected from a property on account of
Supreme Court, a petition for mandamus was a final judgment in an ejectment suit. But due to
entertained and was eventually reached the some ingenious device she was able to re-enter
Supreme Court and the it said, while pursuant to that property illegally, what is your remedy? The
the Rules on Summary Procedure, petition for remedy of indirect contempt is availble to a
mandamus and the likeis among the prohibited person who was previously ejected initially from
pleadings this however is not with the property. The moment the person previously
contemplation of the prohibition just like in ejected by reason of a final judgment. File an
Fabros, Supreme Courtsaid there seems to be a indirect contempt pursuant to Section 3 Rule 71.
vacuum on this matter because the subject
matter of a petition for mandamus is to compel There are certain instances where there may be
the judge to decide the case because he is ought a parallel action pending the same parties (may
to decide that within the 30-day period provided kaso sa RTC side by side with an ejectment suitor
under the rules. simultaneously with ejectment suit) example you
have an action for reconveyance, an action for
Can a lawyer as an attorney in fact initiate an quieting of title, so there was an issue as to the
ejectment suit? If he is constituted as an attorney ownership on the basis on either on an action for
in fact then he could initiate that action. If he is quieting of title an action for reconveyance filed
a co-owner he can also initiate that action by the defendant in the RTC, can the RTC enjoin
without joining his co-owners and that action the action for ejectment by reason of the
shall be deemed to be for the benefit of all the pendency of this issue on ownership between
co-owners consonant with the article 487 of the the same parties in that ejectment suit and the
New Civil Code. same parties in the same action in quieting of
title or action forreconveyance? No, because the
In cases of co-ownership for example, any co- issue to be resolved in the RTC is ownership
owner may bring that action. Suppose it is the compared to that in the MTC which is
government can the government initiate an possession, if intimately intertwined with the
action for ejectment, so far properties it does not action for possession, baka ma forum shopping
own? ka pa because you can raise that in the RTC
although of course there cannot be a final as of
Obviously because it is a matter of or issue of
the determination of the ownership, that’s why,
possession it does not require ownership.
174
my opinion is that there cannot be forum his defense is that he has a deed of sale the court
shopping. necessarily has to determine the issue of
ownership which is from the very beginning
Nevertheless, the existence of a simultaneous raised by the plaintiff himself, so in that
action which now involves ownership will not particular situation the court is obliged to grant
bar, will not even affect the pending ejectment and rule the issue on conflicting claims over
suit in the first level courts and there cannot be ownership of the property.
an injunction that may be issued and if so issued
it will be a grave error on the part of the RTC to There are several action that would not affect the
do so because this matter of ownership is issue of ejectment cases. In the case of WIlmond
separate and distinct from matter of rightful Auto Supply vs CA where the Supreme Court,
possession which is the principal issue in Accion decided in 1992, what are those particular
Interdictal, plenary action for possession, which actions and instances where it will not affect a
is thevery object and subject matter of ejectment pending ejectment suit.
suit.
III. Rule 71: Contempt
In an action for forcible entry or unlawful
detainer, is the issue for ownership needs to be Contempt can either be criminal or civil. Rule 71
determined? Well, if it is , the rule says and the tells us that there could be criminal or civil
Supreme Court consistently ruled on their contempt but primarily under the rules what rule
matter,that where the issue on ownership is 71 tells us is direct and indirect contempt.
necessary or paramount but again only for Section 1 provides for direct contempt and in
purposes of determining who has the right to section 3 rule 71 gives us all the grounds
possession it shall be resolved by the court and available for purposes offiling an indirect
that has been long been ruled by the court as contempt.
early as 1985 in the case of Vde Legaspi but that
ruling was subsequently modified again by the What are the grounds for direct contempt?
Supreme Court but the issue of ownership or Misbehavior in the presence of the court as to
title of the property is not the primary or obstruct or interrupt the proceedings before
primordial issue which the court has to such court or the refusal to be sworn or to
determine it shall be only determined although answer as a witness and to subscribe an affidavit
provisionally if it becomes necessary in order to or deposition when he is lawfully required to do
arrive at or to resolve the issue of rightful so.
possession.
One that is committed in the presence of or so
It will not also be redundant because for near the court or judge which necessarily
example if the plaintiff alleges that he is the constitute obstruction of the proceedings or
owner and therefore he is entitled to possession, interruption that proceedings, we commonly call
one of the attributes of ownership is jus this obstruction of justice before that court.
possedendi, so if he even in his own volition
alleges ownership and here comes the defendant
175
So, misbehavior, disrespect, offensive 71. Assuming that one appeared in court prior
personalities towards others (pumasok ka sa to the signing to the roll of attorneys, of course
korte nya naka bahag ka lang will not constitute he can be held in indirect contempt consonant
direct contempt— eh kung yun ang kanyang to ground number 5, but can he be disbarred?
attire—Bahag will not be considered as offensive He cannot be disbarred because he is not yet a
because it is their traditional and cultural attire lawyer.
— eh kung naka two-piece ka Mr. Mataga? :) —
—- now in this case it will constitute as direct If in case of indirect contempt unless it is where
contempt). the indirect contempt is predicated by a show
cause order, when we were discussing subpoena
If it is direct contempt, not appealable, if you are (Rule 21) there is a remedy or sanction of by way
held in contempt this is a situation that where of contempt provided for those who disobey or
the court is the complainant, the judge is the refuse to comply with subpoena.
complainant, the judge is the prosecutor and he
will also be the judge. We said that show case order contemplates a
complaint for indirect contempt, that is why you
If you look at the decision of the Super Court in are required to explain, that will also constitute
the case go Cojuanco vs Sandigangbayan, the that explanation or answer to the Show Cause
court said it is not allowed that you are the Order because the proceedings is by way of an
prosecutor and at the same time you are the indirect contempt. So in those cases, there is not
judge and the complainant as well. But the a necessity, pursuant to section 2 or rule 71 to
exercise of this contempt power is precisely for file a complaint for indirect contempt because if
the court to enforce its power whether that you look at the general requirements in so far as
power is inherent to judicial authority and those the commencement of an indirect contempt you
conferred by law particularly Section 5 Rule 135 need to file a complaint. For example, your
there you will see what are those powers that are ground is the rescue or attemptedrescue of a
invested by the rules to our courts ( so, sabi ni person property that necessarily would entail the
Korte Suprema yang ruling sa Cojuanco wil not filing of the complaint and a payment of a docket
apply respecting contempt specially direct fee.
contempt.
The general rule under Rule 71,in cases of
So, what is the remedy available since it is not indirect contempt is you have to file a complaint.
appealable in so far as direct contempt? The That case shall be raffled and proceeded with as
remedy is certiorari. He can avail is provisional a a special civil action, take note of those ground
remedy by posting bail which the judge himself under section 3 of rule 71.
will fix for him to secure his provisional liberty
for the meantime that the petition for certiorari What distinguishes civil from criminal contempt?
is pending In civil contempt the order here of the court
necessarily is for the benefit of the plaintiff.
Indirect contempt is not committed in the
presence of a court or near the judge. There are But if it is a criminal complaint the very nature of
several grounds provided under section 3 of rule it is it is an act, a contemptuous act and or
176
conduct of a person that is directed to the Supreme Court to be an act which violates and
authority ordignity or both of the court to constitute as obstruction of the proceedings
disobey the lawful order of the court, you refuse constitute a affront to the authority and dignity
to comply with the lawful order of the court, that of the court violation of the confidentiality of the
is according to the Supreme Court a direct proceedings which is pending in the supreme
affront to the authority or dignity of that court. court and therefore the filing of that indirect
contempt directly to the Supreme Court is
Although it is an indirect contempt that act still proper, SC has jurisdiction over that complaint.
constitute as a conduct that is directed against Meaning if the matter involved is in the
the authority or dignity of a court. Of course the complaint for indirect contempt are the same
court may impose the imprisonment or even fine subject matter being litigated in the Supreme
for that matter. Court that complaint shall be filed in the
Supreme Court and that was also demonstrated
There is this case involving Atty. Fortun he was
in the case of former Garcia vs. Radio Station in
the lawyer, the first lawyer of the prominent
Bataan.
family involved in Maguindanao Massacre,
Ampatuan Clan, one of the lawyers there The Supreme Court has the jurisdiction to
circulated a press release to the media entertain and resolve a contempt action filed
announced or reveals the pendency a before it. So it depends whether what court
disbarment case against Atty. Sirgrid Fortun, it would have that action has jurisdiction relation
was printed in some newspaper, it was to the action in which the court has exercised
broadcasted in some tv stations or channel and jurisdiction in which case that complaint must be
so as a consequence of that publication, where filed with the court where the action is pending.
Atty. Fortun said he was suffered damages, filed
indirect contempt in the Supreme Court against IV. Writ of Kalikasan and Writ of Continuing
the all the reporters and the lady lawyer. Mandamus
The first question that needs to be settled is that In Writ of Kalikasan, this is part 3 rule 7 on the
whether or not SC has jurisdiction in so far as Rules of Environmental Cases, as a consequence
this complaint of indirect complaint. If the case of a previous decision rendered by the Supreme
is about disbarment, this is confidential. It is nor Court starting from Oposa vs Factoran, that
allowed to disclose these kinds of proceedings. practically brought about the promulgation of
Rules on Environmental cases in April 2010
But if the respondent lawyer or a judge for that
under AM 09-6-8 and under Rule 7 on that Rules
matter or held liable by the SC that decision
on Environmental cases Writ of Kalikasan
coulda published. If the lawyer is absolved that
together with Writ of Continuing Mandamus are
will not be published that remains to be
classified as a special civil action.
confidential. In disbarment unless the lawyer is
held liable or guilty that proceedings cannot be The writ is actually as defined as under section 1
published it remains confidential. So, that act of of rule 7, a remedy available to all persons
publishing a pendency of a disbarment whether natural or juridical or entity, people
proceedings against Atty. Fortun was held by the
177
organization, non-governmental organization case of Sec. Reyes in 2014, the question is even
or any public interest group, provided they are those that areunder the law not possessing legal
registered or accredited with any government or capacity could be a petitioner in a petition for
proper government agency on behalf of persons writ of Kalikasan because even section 1 tells
whose constitutional right, according to Oposa, you that entities or persons can be parties to
that right to a balance and healthful ecology environmental cases involving writ of kalikasan
which is violated or threatened with violation by and rightly because with the doctrine of
any unlawful act or omission of a public official intergenerational responsibility enunciated in
or employee of even private individual or private Oposa, the Supreme Court ruled that even the
entity provided that the damage of such unborn deserves protection and the consequent
magnitude that would prejudice the life, health enjoyment for their generation that is their
or property of the inhabitants of at least 2 or generation in so far as the so called balanced
more cities or provinces. and healthful ecology.
This is where Oposa was decided and ultimately In Sec. Reyes, subsequently the Supreme Court
reached the Supreme Court to promulgate the expanded this concept of this legal capacity to
rules on environmental cases one of which is the sue not only the unborn children but this time it
writ of kalikasan. even includes mammals, rivers, mountains, etc.
the only requisite is that they must be
Now the writ of continuing mandamus on the represented by any person or any entity or group
other hand was an offshoot of the case of or organization that are duly accredited or
Concerned Citizens vs Department of MMDA, registered with proper government agency . So
DPWH, City of Manila etc. which was again filed the whales, the sharks can be plaintiffs
by Atty. Oposa that was before the promulgation themselves or petitioner in Kalikasan cases
of this rules on environmental cases.
The material averments required for a potion for
Let us go through jurisdiction, in Kalikasan there Kalikasan, the parties, their personal
are two courts which has jurisdiction the circumstances, their whereabouts, the acts
Supreme Court and the Court of Appeals. constituting violation of any environmental laws
which are enumerated under the Rules on
In contrast, in continuing mandamus the RTC
Environmental cases.
would have jurisdiction over the acts complained
of where committed under its territorial Any of those laws which appeared to have been
jurisdiction or region. So unlike Kalikasan, in violated or acts committed falls under any of
continuing mandamus the RTC where the act those prohibited acts or any of these rules could
complained of has been committed or within its be among the grounds that must be alleged in a
territorial jurisdiction have jurisdiction over petition. The evidencethat must be presented
these petitions of writ of continuing mandamus. which has to be identified in the complaint.
In Kalikasan, this is where the rule on legal The evidence may consist even oftestimonial
capacity to sue has been varied according again evidence by way of judicial affidavit and of
to Oposa vs. Factoran and subsequently in the course you have verification and certification
178
against forum shopping. Docket fees is not environment would be prejudiced by such
required in Writ of Kalikasan petition. Under the human activity without due regard to the rights
Rules on Kalikasan once this petition is filed if that may be affected involving environmental
the court of appeals or any or justice thereof find rights all these doubts shall be resolved in favor
that the complaint or petition is sufficient in granting the writ or even the interim reliefs.
substance and form within 3 days that court may
issue a writ prayed for. When the petition is filed immediately and it
appears to be sufficient in substance and form
The writ would require the respondent to file a within three days a writ shall be issued as if there
verified return (like Amparo and Habeas Corpus, is summons requiring the respondents to file the
Habeas Data ang tawag sa answer dito Return). answer or a return.
Take note that there is this available interim
reliefs or provisional reliefs under the rules on The possible interim reliefs are inspection order,
writ of Kalikasan and in the application of such ocular inspection order, production of document
interim reliefs the court may apply the so called order, these can be applied for and be granted
precautionary rules or precautionary principle in during thependency of a petition of the orderfor
granting such interim reliefs. petition of Kalikasan.
Rule 20 provides the rules on evidence in Are there prohibited pleadings? Sec. 9 of Rule 7
environmental cases. There you will see that tells the prohibited pleadings and motion, such
under the Rule provides the court with as motion to dismiss, motion for extension to
precautionary principle, in simplest term, if there file return, postponement, bill of particulars,
is doubt in resolving cases because there is lack crossclaim, counterclaim, third party complaint,
of scientific evidence or data, there is no reply and default these are prohibited in
scientific certainty in establishing a causal link Kalikasan action.
between human activity and environmental
If there is no return or answer filed by the
effect of such activity then that doubt shall be
respondent in a petition for Kalikasan, section
resolved only toor in favor of the right of the
10 tells us that if there is no return filed by the
people to a balanced and healthful ecology.
respondent the court shall proceed to hear ex
If there is no such concrete scientific data parte the petition, there is no default. If there is
available,the doubt shall be resolved in favor an answer, there will be hearing and there is
granting the writ because of the constitutional even preliminary conference that may be called
right of people to a balanced and healthful by the court of appeals but it should not extend
ecology. beyond 60 days.
When there is an allegation ofthreat to human The Rules says that just like Amparo, Habeas
life or health that may result to such human Corpus and Habeas data the writ of Kalikasan
activity such as mining, logging, etc.when there should also be given equal priority. What
is seemingly inequity that would result to be happens when the petition for Kalikasan when
suffered by the people or even the future directly filed in the Supreme Court?
generation or even at the very least the
179
Since under the rules itself it was expressly Does the filing for a petition for writ of Kalikasan
provided that the SC and CA shall have precludes or bars other actions that may be filed
concurrent jurisdiction over potions on by the plaintiff, such as civil action, criminal
Kalikasan. action or even administrative action?
If the petition is filed directly under the SC, the The last section of Rule 7 tells you that and it
SC has the option whether to take the case provides expressly that the filing for a Petition of
directly or hear the case by itself or it shall a Writ of Kalikasan does not bar,does not
referthecase to the CA the SC has that option to prohibit, filing of a separate civil, criminal or
proceed with the case directly or it may transmit administrative action. In fact, under the Rules of
to the Court of Appeals for proper proceedings. Environmental cases, itself, there are rules on
civil actions and criminal actions, involving any
Take note that in Kalikasan, there is also a kind of violations of environmental laws.
remedy of contempt, there is also a remedy of
modes of discovery. So, necessarily the special civil actions of writ of
Kalikasan does not bar or will never stop parties
When does contempt lie in Kalikasan? Under from farther filing or even simultaneously filing
Section 13, of Rule 7 there is specific provision a civl, criminal or administrative actions against
for contempt but it has to be after hearing any party who violated environmental laws.
consonant also to the provision on indirect
contempt under rule 71. Now how about continuing writ of mandamus,
there are instances, there are decisions of the
For example if, the party respondent unduly Supreme Courts and this involves the province of
delays or refuses to file his return, file his false Aklan involving state of environmental situation
return or disobeys or resists the lawful order or in Boracay, where the Super Court in an action
processes issued by the court. After the return for Kalikasan seemingly has treated as also as a
was filed and after the hearing, memorandum petition for Continuing Mandamus and where
should be filed if the case is submitted for the writ of continuing mandamus was issued
hearing and in fact under the rules it should be suppletory to the pendency of potion of
done within the non-extendible period of 30 Kalikasan.
days coupled with an electronic copy.
Now you will note that under section 1 of Rule 8,
Judgement shall be rendered by the court within the very nature of continuing mandamus is
the period of 60 days from the filing of the almost just like mandamus under Rule 65,
petition, from the time the petition is submitted seemingly it is similarto the purpose and object
for decision not from the time of filing but from of mandamus under rule 65 section 3 and it
the time the case is submitted for decision. provides that primarily it concerns itself with any
agency or instrumentality of the government or
Pursuant to Section 15, of Rule 7that judgment
any officer thereof in so far as the unlawful
includes several reliefs. Appeal is by a petitionfor
neglect, when there is neglect in the
review under rule 45 within 15 days.
performance of their duty which by law they are
specifically enjoined. So seemingly, when there
180
is that duty mandated by law and there is a the SC in the case decided in Dulot vs Judge Paje
refusal a neglect to do so that could be a subject in Sorsogon.
of a petition or issuance of a writ of continuing
mandamus Where that Judge dismissed the petition filed
against a mining company in Sorsogon for
In the case of the Concerned Citizens involving violation of environmental distraction which a
Manila Bay, if you are familiar with this case, this company operates allegedly without even a
is about a petition to compel the City of Manila permit duly issued by the DENR but the Judge
and all other departments of the executive dismissed the petition on the basis of an
branch of the government including the MMDA, administrative circular of the SC defining their
to order all of them collectively to effect the territorial jurisdiction in that case (sabi Nya wala
continued clean up and maintenance of Manila akong jurisdiction it belongs to another court)
Bay. The fact is until now there is monitoring as which the SC eventually reversed that ruling.
to the compliance with the writ of continuing
mandamus issued by the Supreme Court in that In so far as Kalikasan revisit the case of Boracay
case. Foundation vs Province of AKlan. In part the RTC
shares jurisdiction with the CA and the SC in so
So, while this is by itself an action, the writ far as the writ of continuing mandamus.
issued here being continuing may not be
onetime compliance but a continuing There is also no docket fees in continuing
compliance as if it is an interlocutory order and mandamus. Just like in kalikasan all the
there will be a continuing monitoring and petitioners in continuing mandamus are exempt
reporting of the compliance to the court whether of payment of docket fees.
the order was complied or being continuously
There is also interim reliefs such as TEPO,
complied. So in the case of Manila Bay, until
Temporary Environmental Protection Order may
today there is a continuing monitoring and at
be issued for the purpose of the preservation of
any time they may be petitioned for contempt if
the right of the parties during the pendency of
they continue to neglect that duty as ordered by
the proceedings. Judgment shall also be
the court in so far as the continuing or
rendered by the court within 60 days from the
continuous clean up to be made in Manila Bay.
date, although it has to be summary in nature,
When you are talking about continuing and memoranda could also be required should
Mandamus until it is finally declared by the Court be decided 60 days from the submission of the
that the matter has been or the subject of the case for decision.
writ has been fully and finally complied with
No section 7 of Rule 8 tells what could be the
there shall always be a continuing monitoring
reliefs of the judgment that could be rendered in
and reporting.
a petition for the continuing mandamus the
We said earlier that in case of mandamus the RTC court may require all the respondents to submit
shares jurisdiction with CA or the SC. So, there periodic reports in so far as the progress and
is the participation of the RTC within its execution of the judgment and that is what is
territorial jurisdiction this was demonstrated by
181
being done in so far as Manila Bay is concerned necessarily should also be stated in the
as of now. demand letter.
And for that purpose it may refer this report for My position is that consonant with the civil
the assessment by commissioner or any other code provision because there is a if you look
government agency for the purposes of the civil code, on lease of property, there is
evaluation of such report so far as the even an automatic renewal of the lease if the
compliance of the judgement rendered in that lessor did not give notice to vacate (Tacita
report. Reconduccion), there is within a period of
fifteen days the lessor didnot give notice to
V. Q&A
vacate as a consequence of the expiration of
the contract of lease the legal renewal of
1) In the discussion, you said that the SC could
contract of lease may take place.
give the environment case to the CA for the
determination of the case, if the SC refers
In that case the contract of lease deemed
the case to the CA and the CA decided the
because it is an unwritten contract would be
case, can it be reviewed by the SC by appeal?
a month to month bases.
ANS:No. When the SC transmit the case to

3) Under the amended rule on pleadings it was
the CA for proper disposition, that means
stated the the pleadings must state not only
that case is referred back as if it was
the facts but also the evidentiary facts, can
originally filed with the CA.
evidentiary facts be subject of a motion of a
bill of particulars?
2) Regarding sec.2 rule 70, the ground for the
lessor to proceed against the lessee is the
ANS:Do not confuse evidentiary facts from
demand to pay or failure to comply to the
the complaint or pleadings itself. An
condition of the lease to vacate, how about
ambiguous situation that will call for a bill
if theground to vacate is the expiration of
of particulars arises when there is no
the contract, is the demand to vacate still
evidence that shows to support an
necessary or failure is a ground for
allegation.
dismissal?
Under this amendment since all pleadings

ANS: In cases of unlawful detainer where
necessary being required now to have all the
there is expiration of contract of lease as a
evidence to accompany a pleading there is
ground, although when you are talking of a
now seemingly a remote possibility that the
rule which was the ponencia of Justice Brion
billow particulars can still be entertained
it speaks clearly of the violations committed
with the court. Although it does not bar the
nevertheless it does notexclude by
remote possibility is present.
implication that where the ground relied is
the expiration of the lease contract that
182
4) If the demand was not valid, as there was no ANS: Yes. It may refer to single transaction
specific ground stated, prescription will not you are not dealing with isolated
start to count? transactions or continuing transactions.
ANS: Under that ruling, it’s about 6) In relation to the previous question, in the
jurisdiction, let me predicate the answer to case of Micronesian Lines vs Del Rosario, it
that ruling because it principally deals with states that transaction shall be construed as
jurisdiction and therefore the act is if there is a continuity of conduct and an
dismissible because demand being intention to establish a continuous business
jurisdictional and since the demand is an isolated transaction which is occasional,
insufficient to bestow jurisdiction it could be casual or incidental does not constitute as
dismissed for lack of jurisdiction over the doing business (Commercial Transaction)
subject matter.
ANS:If you look at the principle in corporate
Now your question is about prescription, Law which involves a foreign corporation
does the pendency of that action is pursuant to RA 11232, the revised
subsequently is dismissed because there is corporation code, the principle of isolated
no valid demand stops or toll the transactions and those principles of those
prescriptive period is that what you have in not doing business in the Philippines which
mind? would allow judicial processes is not yet
modified so it continues to be that way.
The prescription continues to run,
remember when the court has no We have to distinguish if these are matters
jurisdiction over the action, what happens to of commercial transactions then we still
the prescriptive period, it continues to run follow that doctrine if we are talking about
because the pendency of an action tolls the environmental cases that does not apply.
prescriptive period or the reglementary
period but if the proceeding is void by lack The matter of interpreting of what
of jurisdiction as if there is no action filed in constitute of doing business in the
court, the filing of an action in court Philippines that operates under your
effectively suspend the prescriptive period ordinary commercial transactions specially
but presupposed that the court is vested in corporation law.
with proper jurisdiction.
We still follow the doctrine of the so called
5) On rule 14 section 14 it states that “it has isolated transactions and those who are
transacted or doing business in the deemed not doing business in the
Philippines” does this also cover single Philippines in so far as foreign corporations
transaction? are concerned.
But if you go to environmental cases, it has

to be treated differently, the fact is under
183
these Rules on Environmental cases it does environmental cases the objective is

not make any distinction what is important expressed in its whereas clauses.
is to determine who committed the violation
of the environmental laws, the actual So, I believe the court can still exercise that
commission that violates environmental jurisdiction, my position is that, since it is
laws. the purpose of giving effect of its objective
to protect the environment the court can
7) It was stated in the Rules in the still exercise that jurisdiction to require the
environmental cases that the writ of subject to penalties or sanctions to correct
continuing mandamus and the writ of or it may dismiss because o non compliance
Kalikasan needs to contained a certification of the requirements in so far as the pleading
of non-forum shopping what if the is concerned.
opposing party forgot to file a certificate of
non-forum shopping. Can you file a motion
to dismiss based on that ground?
ANS: You cannot file a motion to dismiss,

instead the court can moot proprietary act
on it, either dismissing it, penalizing the
party or even requiring the party to comply.
Under the ordinary procedure and taking

into consideration the purpose and
objective environmental laws in terms of the
exercise of discretion of that court in order
to give meaning in protecting the
environment.
That court may even require subject to

administrative sanction, they require the
parties to comply but not dismissed or even
dismiss it for failing to fulfill the
requirement under the rules on the
environmental cases.
But the repealing clause on the revised rules

on the civil procedure it says there any rules
inconsistent are deemed repealed, but you
now if you look at the adminstratitve matter
09-6-8 when they promulgated the rules on
184

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[CIVIL PROCEDURE] Transcribed Notes of Dean Feble’s Lectures

Altarejos, Agustin, Baluyot, Mataga, Mendoza, Ramacola, Tan

January 24, 2020  Rules for ordinary civil actions is

1. Ordinary Civil Action Special Proceedings

2. Special Civil Action

Provisional Remedies (Rule 57-61; 127) Requisites of valid jurisdiction:

 Auxiliary and dependent upon the 1. Jurisdiction over persons of parties

February 6, 2020 Now if we are talking about jurisdiction in

Courts of law means that we only have courts February 7, 2020

The allegations in the complaint, not anything

And when the cause of action is determined,

IF THE COURT FROM THE BEGINNING IS WITHOUT

What do you think is the reason why it is there

How about the resolution or decision of the

Administrative Resolution of the Ombudsman,

Ombudsman has primary jurisdiction over cases

CASE: SENATOR GREGORIO HONASAN VS DOJ

-It exercises primary jurisdiction in all

February 20, 2020 absolute Rule to a person who is under civil

Under the absolute Rule:

Because the end result of the penalty of civil

Q: Does this mean that this Rule under 2. Corporation

 Isolated transactions in the Philippines

 The court upon motion, or motion of the Rule on Joinder of Parties

Sec. 3, Rule 19 Q: what is now the remedy of A?

Section 3. Pleadings-in-intervention. — The Ans: Replevin if provisional remedy or delivery of

However, if the action affects property relations February 21, 2020

So where will you file your complaint? First

Rule 4, Section 1. Venue of real actions. —

Forcible entry and detainer actions shall be

If it is a real action, then you have to file it in

So if the property is in Manila you have to find it

Example If there are several descendants then i have the

Replevin, delivery of possession of properties 2. If it is a continuing offense, in any place,

In ejectment there is an application insofar as If it is rehabilitation, this will be supplemented

Is a bill of particulars a pleading? If it is a part of February 27, 2020

Is that Rule still applicable under the present

No. That is no longer the Rule.

Why? Because under the present amendment,

What is this judicial affidavit Rule?

Judicial affidavit contains a Q&A form, matters

Judicial affidavit Rule applies now to both cases

So not only will the pleading, now it includes

Failure to comply with the foregoing

It cannot be done by amending the complaint.

Section 3 of Rule 10: But such leave shall be

If there is no actionable document, file an

Rule 10, Section 6. Supplemental pleadings. —

The principle office, function and practice of

March 5, 2020 preceding Section shall be applied. This is in

Strictly speaking, it is not about always a foreign

Usually motions are categorized or classiﬁed as When you go to Section 17 extraterritorial

summons. But necessarily because either registered to do business in the Philippines or it

The question is do we have a counter part for

March 6, 2020 So there are certain documents which may be

The filing shall be complete If registered mail.

So, a party or a lawyer cannot defeat the process

. Do you need to show the registry receipt if you

Ans: No. Ans: look at the certain circumstances:

Proof of Service If he transferred, did he provide the court and

Q: if it arises only to non- claim or refusal to Ans:

(a) Ordinary mail. – Proof shall consist of an Summons

Ans: 3rd party defendant